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UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 1

PROPERTY REVIEWER

ART.414: ALL THINGS WHICH ARE OR MAY


BE THE OBJECT OF APPROPRIATION ARE *Property is ALWAYS a thing, but a thing IS
CONSIDERED EITHER: NOT ALWAYS a property
REASON: Things are existing objects
(1)IMMOVABLE ROPERTY; OR which can be of some use to man; however,
(2)MOVABLE PROPERTY these are broader in scope than property.
There are things which cannot be
WHAT IS PROPERTY? appropriated and things only refer to
Property is an object or a right which is corporeal objects as distinguished to
appropriated or susceptible of property, which may be an object or right.
appropriation by man with capacity to
satisfy human wants and need
CLASSIFICATION OF THINGS (CAN)
ATTRIBUTES OF PROPERTY: (USA) 1. RES COMMUNES – things which
1. UTILITY (satisfy the moral and belong to everybody like sunlight,
economic needs of man moonlight moving air but these
2. SUBSTANTIVITY OR INDIVIDUALITY things do not qualify as properties as
(capable of individual existence) contemplated under Art.414
3. APPROPRIABILITY (susceptibility to because they are beyond human
ownership) control or appropriation.
2. RES ALICUJUS – are things which are
ARE RIGHTS UNDER ARTICLE 3 OF THE 1987 owned by a person or group of
CONSTITUTION PROPERTY? persons like house and lot, a parcel
No. Although the concept of property does of land. These are things qualified as
not only include corporeal things, whether properties.
solid, liquid or gas, as it includes rights, the 3. RES NULLIUS- things which do not
rights covered on Article III of the have any owner like the whale,
Constitution on Bill of Rights are not sharks wild animals in the forest.
deemed property because these are rights These things are still qualified as
which are not capable, appropriated or property because this can be placed
susceptible of appropriation. The rights under the control by human through
contemplated as property are the right to occupation. Once seized by man, it
office, right of a person to his labor within automatically belongs to him. It is
the meaning of constitutional guarantees. already his property.

CLASSES OF RIGHTS CONSIDERED AS IS AIR A PROPERTY?


PROPERTY: Air we breathe is absolutely not a property
1. REAL RIGHT- right which can be but if air is placed on oxygen tanks it now
exercised against the whole world becomes property as it is placed under the
2. PROPERTY RIGHT- the right to control of man.
demand the fulfillment of prestation
to give, to do or not to do IS HUMAN BODY A THING?

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No, however when severed from the body breaking the material or
become property like the hair, blood. deterioration of the object;
4. Statutes, reliefs, paintings or
IS A CORPSE A PROPERTY? other objects for use or
No. While it holds true that a corpse may be ornamentation, placed in
considered as a thing because it loses its buildings or on lands, by the
legal personality, because of moral reason owner of the immovable in such
and public policy, it cannot be considered as a manner that it reveals the
a property. intention to attach them
permanently to the tenements;
MAY IT BE SUBJECT OF CONTRACTUAL 5. Machinery, receptacles,
RELATION? instruments or implements
Generally, a person’s body whether alive or intended by the owner of the
dead cannot be the subject of contractual tenement for an industry or
relation. A person cannot give his body works which may be carried on
parts and receive money in exchange of it. in a building or on piece of land,
However, there are instances where a and which tend directly to meet
person’s body part may be taken only for the needs of the said industry or
scientific or medical purpose. Body parts works;
can only be a legacy or a donation under 6. Animal houses, pigeon-houses,
Organ Donation Act when the person is beehives, fish ponds or breeding
dead or immediately before. Stressed must places of similar nature, in case
be put that organs or body parts are not their owner has placed them or
within the commerce of men. preserves them with the
intention to have hem
permanently attached to the
land, and forming a permanent
IMMOVABLE PROPERTIES: part of it; the animals in these
ART.415 enumerated the different places are included;
immovable properties, to wit: 7. Fertilizer actually used on a piece
Art.415: The following are of land;
immovable property: 8. Mines, quarries, and slag dumps,
1. Land, buildings, roads and while the matter thereof forms
constructions of all kinds part of the bed, and waters
adhered to soil; either running or stagnant;
2. Trees, plants and growing fruits, 9. Docks and structures which,
while they are attached to the though floating are intended by
land or form an integral part of their nature and object to
an immovable; remain at a fixed place on a
3. Everything attached to an river, lake or coast;
immovable in a fixed manner, in 10. Contracts for public works and
such a way that it cannot be servitudes and other real rights
separated therefrom without over immovable property.

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functions of the owner of the immovable


WHAT IS AN IMMOVABLE PROPERTY? property
The ordinary meaning of immovable 4.BY ANALOGY- these are rights
property under the Roman Law is one which
firmly fixed or fastened in a definite place.
These are objects which cannot be PAR 1. LANDS BUILDINGS, ROADS AND
transferred from one place to another like CONSTRUCTION OF ALL KINDS ADHERED TO
the land or it is impossible to do so because THE SOIL.
it will cause damage injury or destruction - These are immovable property by
like buildings. While we generally view nature and incorporation
immovable property as those properties Lands- it is by its very nature immovable
which etymologically cannot be moved, and will always be an immovable or real
transferred or carried from one place to property.
another, this meaning has been superseded - A distinction has to be made with
by its juridical meaning. Under Art. 415, soil, a truckful of soil taken from the
there are objects which can be transferred land is a personal property, if placed
from one person to another without to a pot, it is also a personal
causing injury or destruction yet are property, but once the soil is used to
deemed immovable property. cover a land for ornamentation or
gardening, it becomes immovable by
NOTE BENE: The determination whether a incorporation since it will be
property is immovable or movable is no permanently attached to an
longer dependent whether or not it can be immovable property which is the
transferred. The classification is now land.
dependent whether a thing is included in
the enumeration of Art.415. Logically, all Buildings- these are permanent structures
things enumerated under Art.415 are the adhered to the land and removal of it will
only immovable property following the cause injury or destruction.
principle of expression unius est exclusion *as distinguished from a barong
alterius. barong which is
not a real or immovable property
because it is
JURIDICAL CLASSIFICATION OF IMMOVABLE not of permanent character but
PROPERTY: (NIDA) mere superimpositions on land.
1.BY NATURE- these are properties which
cannot be moved from one place to Mortgage:
another Real Estate Mortgage- for real property
2.BY INCORPORATION- these are properties Chattel Mortgage- mortgage involving
that are basically movables but are movable property
permanently attached to immovable
3.BY DESTINATION- these are movables but
have been fixed in movable for business

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CAN A HOUSE BE THE OBJECT OF A transaction in the light of Act No. 3135, as
CHATTEL MORTGAGE? amended by Act No. 4118, as was so
Yes. A house, although a real property may considered by her when she requested the
be a subject of chattel mortgage provided provincial sheriff to sell it extra-judicially in
that the parties mutually agreed to consider order to secure full satisfaction of the
the house a personality and that no indebtedness still owed her by the
innocent third person shall be prejudiced. mortgagor. It is clear that Act No. 3135, as
As explained by the Supreme Court in Luna amended, only covers real estate
v. Encarnacion, the SC noted that: mortgages and is intended merely to
regulate the extra- judicial sale of the
FACTS: Jose Luna executed a chattel property mortgaged if and when the
mortgage in favor of Trinidad Reyes which mortgagee is given a special power or
includes a certain house of mixed materials express authority to do so in the deed itself,
to secure the payment of the promissory or in a document annexed thereto. These
note. When Jose Luna failed to pay, the conditions do not here obtain. The
mortage was forclosed and was purchased mortgage before us is not a real estate
by Trinidad Reyes. Trinidad Reyes mortgage nor does it contain an express
demanded from Jose Luna to surrender the authority or power to sell the property
possession of the property through a extra-judicially.
petition filed in the Court of First instance, But regardless of what we have heretofore
Judge Encarnacion then granted the stated, we find that the validity of the sale
petition of Trinidad Reyes ordering the in question may be maintained, it appearing
provincial sheriff to place the possession of that the mortgage in question is a chattel
the property to Trinidad Reyes, overruling mortgage and as such it is covered and
the opposition of Jose Luna that the regulated by the Chattel Mortgage Law, Act
mortgage involved is a chattel mortgage No. 1508. Section 14 of this Act allows the
and not real estate mortgage. mortgagee to have the property mortgaged
sold at public auction through a public
ISSUES: whether or not the property can be officer in almost the same manner as that
extrajudicially sold allowed by Act No. 3135, as amended by
Act No. 4118, provided that the
HELD: There is merit in this claim. As may requirements of the law relative to notice
be gleaned from a perusal of the deed and registration are complied with. We are
signed by the parties (Annex "C"), the not prepared to state if these requirements
understanding executed by them is a of the law had been complied with in this
chattel mortgage, as the parties have so case for the record before us is not
expressly designated, and not a real estate complete and there is no showing to that
mortgage, specially when it is considered effect. At any rate, this issue is not now
that the property given as a security is a important because the same can be
house of mixed materials which by its very threshed out when the opportunity comes
nature is considered as personal property. for its determination, nor is it necessary for
Such being the case, it is indeed a mistake us to consider it in reaching a decision in
for the mortgagee to consider this the present case. Suffice it to state that for

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the present we are not expressing any CAN THE OWNER QUESTION THE VALIDITY
opinion on this matter which concerns the OF THE CHATTEL MORTGAGE WHEREIN HIS
validity of the sale in question for the HOUSE IS THE OBJECT?
reason that this opinion will only be limited No. the validity of the house constituted on
to a matter of procedure relative to the the house which is a real property cannot
step taken by the mortgagee in securing the be questioned by the owner thereof
possession of the property involved. because he is placed under estoppels from
denying the existence of chattel mortgage.
In the supposition that the sale of the
property made by the sheriff has been PAR 2: TREES, PLANTS AND GROWING
made in accordance with law, and the FRUITS, WHILE THEY ARE ATTACHED TO THE
question he is confronted is how to deliver LAND OR FROM AN INTEGRAL PART OF AN
the possession of the property to the IMMOVABLE.
purchaser in case of refusal to surrender its - These are immovable by nature
possession on the part of the debtor or
mortgagor, the remedy of the purchaser, Rules on Trees and Plants:
according to the authorities, is to bring an 1. Trees and plants of whatever size
ordinary action for recovery of possession are always considered immovable by
(Continental Gin Co. vs. Pannell, 160 P., their very nature because they are
598; 61 Okl., 102; 14 C. J. S., pp. 1027, not to move from one place to
1028). The purchaser cannot take another; or
possession of the property by force either 2. They may be considered immovable
directly or through the sheriff. And the by incorporation when planted
reason for this is "that the creditor's right of through labor.
possession is conditioned upon the fact of
default, and the existence of this fact may Generally, trees and plants of whatever
naturally be the subject of controversy" size, when adhered to the land are always
(Bachrach Motor Co. vs. Summers, 42 Phil., immovable whether it is by nature or by
3, 6). The creditor cannot merely file a incorporation. The distinction is immaterial
petition for a writ of possession as was because what the provision provides that so
done by Trinidad Reyes in this case. Her long as the trees or plants are adhered to
remedy is to file an ordinary action for the land it will always be treated as
recovery of possession in order that the immovable property.
debtor may be given an opportunity to be XPN: trees and plants, once
heard not only regarding possession but uprooted will be
also regarding the obligation covered by the considered as personal property
mortgage. The petition she has filed in the already
lower court, which was not even docketed,
is therefore improper and should be Rules on Growing Plants:
disregarded. Notice that par 2 of Art 415 on Immovable
Property, growing plants are also
considered as immovable property. On this
light, we will also follow the rules on trees

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and plants with certain modification as permanently and in case of removal


ruled by the Supreme Court in the Sibal v will cause
Valdez case. injury or deterioration of the object)

GENERAL RULE: Growing plants are PAR 4. STATUES, RELIEFS, PAINTINGS OR


considered immovable property by OTHER OBJECTS FOR USE OR ORNAMENTS,
incorporation as long as they had not been PLACED IN BUILDING OR ON LANDS, BY THE
gathered yet. OWNER OF THE IMMOVABLE IN SUCH A
XPN: Growing plants, although not MANNER THAT IT REVEALS THE INTENTION
gathered yet will be treated as personal TO ATTACH THEM PERMANENTLY TO THE
property only for: TENEMENTS.
1. the purpose of chattel mortgage - Immovable by incorporation and
2. execution destination
3. attachment
*only in those three instances as REQUISTES:
enumerated by the SC that ungathered 1. The movable property is placed by
fruits which are generally real properties the owner of the immovable
may be treated as personal property, in property; and
which case, at all instances if not yet 2. There is an intention to make it
gathered, always a real property. permanently attached to the
immovable property
PAR 3. EVERYTHING ATTACHED TO AN
IMMOVABLE IN A FIXED MANNER, IN SUCH
A WAY THAT IT CANNOT BE SEPARATED STATUS: the properties contemplated in par
THEREFROM WITHOUT BREAKING THE 4 are movable property by its nature but
MATERIAL OR DETERIOTION OF THE because of the intention of the owner of
OBJECT. the immovable to attached it permanently
- Immovable by incorporation ( res to his property, it become real property.
vinta) *that is why par 4 specifically states
-it was attached for that it must
permanent purpose be attached by the owner of
*it is not necessary whether the movable is immovable property or his agents,
attached to the immovable in a fixed so if attached by a mere tenant, it
manner by the owner or not, what the will be considered as personal
provision provides as distinguished in property. However, if a lessee of a
Meralco v Board of Assessment and Bord of land attached a movable property
Assessment v. Meralco cases, thus: with a stipulation it will remain after
- the test is the material fact of the termination of the lease
incorporation ( contract, it will be considered as
meaning it was attached to the immovable property already.
immovable) and
-separation (meaning it was ----------------------------------------------------------
attached their

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DISTINGUISH PAR 3 FROM PAR 4 OF ART for the purpose of his industry, it is
415: deemed immovable property.
The distinction of Par 3 from Par 4 of Art
415 is very clear, that is: WHEN TO USE PAR 3 AND PAR 4?
1. The movable property in PAR 3 In classifying the movable object whether it
cannot be separated from the will be treated as immovable under ART
immovable property without 415, the test is who placed such movable
breaking or deterioration of the property. If it was placed not by the owner
movable property while the of the immovable, apply PAR 3, if it is
movable property in PAR 4 can placed by the owner of the immovable by
be separated from the himself, apply PAR 4.
immovable without breaking or
deterioration.
2. The movable property attached REQUISITES:
in PAR 3 may be placed by the 1. Must be placed by the owner of the
owner of the immovable or the tenement;
owner of the movable or third 2. The industry is carried in the
person while the movable building or land to which the
property attached in PAR 4 must movable property is attached by the
be attached by the owner of the owner; and
immovable property or his agent 3. Such movable property attached
either express or implied. therein is essential to the industry.
3. The status of the object in PAR 3
is immovable property by SITUATION:
incorporation while in PAR 4 is A owned a hospital and placed some
immovable by incorporation and photocopy machineries therein. Are those
destination. machineries considered immovable
---------------------------------------------------------- property by destination?
No. PAR 5 of ART 415 is very clear that only
PAR 5. MACHINERY, RECEPTACLES, those property which is essential to the
INSTRUMENTS OR IMPLEMENTS INTENDED industry carried in such building or
BY THE OWNER OF THE TENEMENT FOR AN tenement will be considered immovable.
INDUSTRY OR WORKS WHICH MAY BE The reason for this is because without these
CARRIED ON IN A BUILDING OR ON A PIECE instruments, the industry will not
OF LAND, AND WHICH TEND DIRECTLY TO materialize. Photocopy machineries are not
MEET THE NEEDS OF THE SAID INDUSTRY essential to the industry owned by A,
OR WORKS. hence, it is a personal property and not real
- Immovable by destination or property
purpose
-the object is movable by its object Rules on machinery instrument and
but because of the intention of the implement installed by a lesse.
owner of the tenement to place it

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G.R: Machinery, instrument and implement movable because they ceased to be


installed by a lesse is personal pr movable a part of such house.
property. 3. Cages is not included so it will be
XPN: When the lesse agreed to give it to the considered personal property since
lessor upon the termination of the lease they can be moved from one place
contract. to another.
NOTA BENE: the movable object in this par
is NOT ATTACHED, it is the intention to PAR 7. FERTILIZER ACTUALLY USED ON A
place it their because it is essential to the PIECE OF LAND.
industry carried in the building which - These are immovable by
recognized it as immovable property. incorporation
- Par 7 is very clear and unequivocal
WHEN IS MACHINERY PLACED TO THE that only fertilizers used on a piece
LAND OR TENEMENT CONSIDERED of land are deemed immovable since
IMMOVABLE PROPERTY? it is already placed in the land and
Under PAR 5 of ART 415, when the you can never take it or separate it
machinery, receptacles, instruments or from the land. If such fertilizers are
implements intended by the owner of the still on the sacks, although there is
tenement for an industry or works which intention to place them or use them
may be carried on in a building or piece of on land, it is still movable.
land and which tend to directly to meet the
needs of the said industry or works, such PAR 8. MINES, QUARRIES AND SLAG
machinery is deemed immovable. DUMPS, WHILE THE MATTER THEREOF
FORMS PART OF THE BED, AND WATERS
PAR 6.ANIMAL HOUSES, PIGEON-HOUSES, EITHER RUNNING OR STAGNANT.
BEEHIVES, FISH PONDS OR BREEDING - Mines, when still attached to the
PLACES OF SIILAR NATURE, IN CASE THEIR land are immovable, once removed,
OWNER HAS PLACED THEM OR PRESERVES it is now movable property
THEM WITH THE INTENTION TO HAVE
THEM PERMANENTLY ATTACHED TO THE PAR 9. DOCKS AND STRUCTURE WHICH,
LAND, AND FORMING A PERMANENT PART THOUGH FLOATING, ARE INTENDED BY TEIR
OF IT; THE ANIMALS IN THESE PLACES ARE NATURE AND OBJECT TO REMAIN AT A
INCLUDED. FIXED PLAE ON A RIVER, LAKE OR COAST.
- these are immovable by destination -these are immovable by destination
Rules: -floating restaurant if in form of cruise is
1. The house contemplated here is movable
animal houses and is considered -what is determining to this is although they
immovable because they are are floating, they are intended to be
adhered to the land permanently by stationary.
the intention of the owner,
2. Animals in such houses are also PAR 10. CONTRACTS FOR PUBLIC WORKS
considered immovable but once AND SERVITUDES AND OTHER REAL RIGHTS
gathered or has escaped become OVER IMMOVABLE PROPERTY.

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- These are immovable by analogy


e.g. DPWH contracted to create a bridge. PAR 2. REAL PROPERTY WHICH BY ANY
The contract is immovable also because the SPECIAL PROVISION OF LAW IS CONSIDERED
object of the contract is a bridge, which is AS PERSONALITY
immovable. - Example is the growing crops which
is inherently immovable but by
IS VESSEL IMMOVABLE PROPERTY? virtue of law, it is regarded as
No. Vessel is a personal or movable movable property.
property. It cannot be considered as an
immovable property because it is not PAR 3. FORCES OF NATURE WHICH ARE
among the properties enumerated in ART BROUGHT UNDER CONTROL BY SCIENCE
415 and it is in its very nature that it is -when controlled is considered personality
movable. However, it can be an object of (example the electricity)
Real Mortgage by reason of its value
although regarded as movable property but SITUATION:
it will never be treated as real property. CAN A PERSON BE CONVICTED OF A CRIME
OF THEFT FOR DIVERTING ELECTRIC POWER
FOR HIS USE THROUGH JUMPER?
MOVABLE PROPERTY Yes. The importance of distinguishing an
object if it is movable or immovable has its
ART.416. THE FOLLOWING THINGS ARE root in Criminal Law. In criminal law, for
DEEMED TO BE PERSONAL PROPERTY: crime of theft, only personal property may
1. THOSE MOVABLES SUSCEPTIBLE OF be an object of it. The test provided here by
APPROPRIATION WHICH ARE NOT the Supreme Court is whether it can be an
INCLUDED IN THE PRECEDING object of appropriation by another than the
ARTICLE; owner. Also gas or electricity can now be
2. REAL PROPERTY WHICH BY ANY under the control of man.
SPECIAL PROVISION OF LAW IS
CONSIDERED AS PERSONALITY; *however, services should not be equated
3. FORCES OF NATURE WHICH ARE to gas or electricity. These although
BROUGHT UNDER CONTROL BY properties cannot be subject of theft
SCIENCE; AND because it cannot be taken.
4. IN GENERAL, ALL THINGS WHICH
CAN BE TRANSPORTED FROM *only in case of theft that the test whether
PLACE TO PLACE WITHOUT is can e appropriated will be applied
IMPAIRMENT OF THE REAL because under the criminal law, only
PROPERTY TO WHICH THEY ARE personal property can be a subject of theft.
FIXED.

PAR 1. THOSE MOVABLES SUSCEPTIBLE OF TEST TO DETERMINE WHETHER A


APPROPRIATION WHICH ARE NOT PROPERTY IS MOVABLE: (ELFM)
INCLUDED IN THE PRECEDING ARTICLE. 1. EXCLUSION- when not enumerated
- Cars, jewelries, clothes etc in ART 415, it is movable;

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2. LAW- by special provision of law example, the food, to ue it, you must eat it
3. FORCES OF NATURE and once eaten, it is gone)
4. MOBILITY- if it can be transferred 2. NON-CONSUMABLE PROPERTY- one
from one place to another which can be used without being
consumed, eaten or used up. (example, the
book, to use it, you read it, tomorrow you
PAR 4. IN GENERAL, ALL THINGS WHICH can still use it by reading it again)
CAN BE TRANSPORTED FROM PLACE TO * the distinction is whether a property can
PLACE WITHOUT IMPAIRMENT OF THE REAL be use over and over again. If yes, it is non-
PROPERTY TO WHICH THEY ARE FIXED. consumable, if not, it is consumable
- These are transportable things from
palce to place without impairing he DISTINGUISH CONSUMABLES FROM
movable to which they are attached FUNGIBLES:
1. Consumables are those properties
Art. 417. The following are also considered which cannot be used according to
as personal property: their nature without being
consumed, eaten or used up, while
(1) Obligations and actions which have fungible things which can be
for their object movables or demandable substituted by another things.
sums; and 2. The test whether it is consumable or
(2) Shares of stock of agricultural, not is whether it cannot be used
commercial and industrial entities, over and over again, while the test
although they may have real estate. for fungible things is based on the
intention of the parties.
- This covers credits, that is the right 3. Consumables things does not
to recover movables and necessarily follows it is fungible
demandable sums of money things
(matured credits) are personal ----------------------------------------------------------
property.
Fungible things- things which can be
Art. 418. Movable property is either substituted or replaced by an equal
consumable or nonconsumable. To the quantity and quality.
first class belong those movables which e.g. books,
cannot be used in a manner appropriate to
their nature without their being Non-Fungible things- things which cannot
consumed; to the second class belong all be substituted by the same specie because
the others. it must be returned to the owner.

CLASSIFICATION OF PROPERTY AS TO The Test is based on the intention of the


CONSUMABILITY parties.
1. CONSUMABLE PROPERTY-one which
cannot be used without being consumed , *Consumable and Fungible are not of the
being eaten or used. ( one use only same meaning. As to whether a thing is

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fungible or non-fungible is not dependent like the buildings for government


to its consumability. offices or departments, the vehicles
for public officials, firearms of the
Art. 419. Property is either of public police force etc.
dominion or of private ownership. 3. FOR DEVELOPMENT OF NATIONAL
WEALTH- these are the forest lands,
CLASSIFICATION OF PROPERTY ACCORDING minerals etc.
TO OWNERSHIP:
1. PROPERTY OF PUBLIC DOMINION- is CAN THE PROPERTIES OF PUBLIC
the property of the state in its public DOMINION BE SUBJECT OF NEGOTIATIONS
capacity, which is intended for FOR CONTRACT PURPOSES?
public use, for some public service No. Properties of public dominion are
or for the development of national properties outside the commerce of men,
wealth. hence when it is outside the commerce of
2. PROPERTY OF PRIVATE OWNERSHIP- men it cannot be subject of negotiation for
consists of all property belonging to contract purposes
private persons either individually or
collectively.
CHARACTERISTICS OF PROPERTY OF PUBLIC
DOMINION:
Art. 420. The following things are 1. Outside the commerce of man;
property of public dominion: 2. Cannot be acquired of prescription;
3. Cannot be levied upon be execution
(1) Those intended for public use, such as or attachment;
roads, canals, rivers, torrents, ports and 4. Generally can be used by everybody
bridges constructed by the State, banks, except properties intended for
shores, roadsteads, and others of similar public services; and
character; 5. May either be real or personal
(2) Those which belong to the State, property
without being for public use, and are
intended for some public service or for the
development of the national wealth. *Property of Public dominion are not
capable of appropriation on the strength of
acquisitive prescription and possession
KINDS OF PROPERTY OF PUBLIC DOMINION: thereof, however long cannot ripen into
1. PROPERTY FOR PUBLIC USE- these private ownership.
are properties which can be used by
everybody like roads, bridges, state DOES THE COLLECTION OF FEES FOR THE
rivers and the like. USE PROPERTY OF PUBLIC DOMINION
2. PROPERTY FOR PUBLIC SERVICE- AFFECT ITS PUBLIC CHARACTER?
these are properties belonging to No. As explained by the SC in MANILA
the state which can be used only by INTERNATIONAL AIRPORT AUTHORITY VS
those who are authorized to do so COURT OF APPEALS, it was noted that as

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long as the property is intended for public and public service when no longer intended
use, it will remain property of public for that purpose may be converted to
dominion notwithstanding the fact that fees patrimonial property and excluded those
have been collected from the people. Such intended for the development of national
fees collected will not affect the wealth.
characteristic of the property as such are
only used for maintenance purposes. WHAT IF THE PUBLIC PROPERTY IS
ABANDONED, CAN IT BE ALIENATED
Art. 421. All other property of the State, ALREADY?
which is not of the character stated in the No. As a rule, formal declaration from the
preceding article, is patrimonial property. Executive Department that the property is
no longer intended for public use or public
WHAT ARE PATRIMONIAL PROPERTY OF service is a condition sine qua non for it to
THE STATE? be converted to patrimonial property and
These are properties of the state which is be alienated. Absence of formal
not intended for public use, public service declaration, the property continues to form
or for the development of the national part of the public domain and cannot be
wealth. These are acquired by the state in alienated or be the subject f acquisitive
its private capacity, hence can be subject to prescription.
prescription or appropriation and can be an
object of ordinary contracts or agreements. CAN LOCAL GOVERNMENT DECLARE OR
WIHDRAW A PUBLIC PROPERTY FROM
Art. 422. Property of public dominion, PUBLIC USE?
when no longer intended for public use or As a rule, it is the Executive Department
for public service, shall form part of the who is responsible for such formal
patrimonial property of the State. declaration. The exception is when such
authority is granted by the law.
HOW DOES THE CONVERSION FROM
PROPERTY OF PUBLIC DOMINION TO Rule on conversion of property of public
PATRIMONIAL PROPERTY EFFECTED? dominion:
The conversion from property of public G.R.: There must be a formal declaration
dominion to patrimonial property is from the Executive Department declaring
effected through a formal declaration from that the public property is no longer
the Executive or Legislative Department intended for that use.
that it is no longer needed for said XPN: when the property has ceased to be
purposes. used for public use and is used for another
purpose.
CAN THE PROPERTY OF PUBLIC DOMINION
INTENDED FOR THE DEVELOPMENT OF Art. 423. The property of provinces, cities,
NATIONAL WEALTH BE CONVERTED TO and municipalities is divided into property
PATRIMONIAL PROPERTY? for public use and patrimonial property.
No. Art 422 is very clear that only property Art. 424. Property for public use, in the
of public dominion intended for public use provinces, cities, and municipalities,

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consist of the provincial roads, city streets, succession, an alien may acquire alienable
municipal streets, the squares, fountains, and disposable land.
public waters, promenades, and public
works for public service paid for by said KRIVENKO DOCTRINE
provinces, cities, or municipalities. The capacity to acquire private lands is
made dependent on the capacity to acquire
CLASSES OF PROPERTY OF POLITICAL or lands of the public domain.
SUBDIVISIONS OF THE STATE:
1. Property for public use Under the Krivenko Doctrine, non-Filipinos
2. Patrimonial Property cannot acquire or hold title to private lands
or to the lands of the public domain except
only by way of legal succession.
Property for public use in provinces, cities
and municipalities are governed by the
same rules as property of public dominion OWNERSHIP
of same character. Hence it is outside the Art. 427. Ownership may be exercised
commerce of man. As long as they are over things or rights.
devoted for public use or intended for
public use, they are not subject to ordinary OWNERSHIP- is the juridical relation of a
contracts, cannot be donated, attached or person over a thing by virtue of which said
levied upon on execution. person has the exclusive power or authority
to receive all the benefits and advantages
Art. 424. Property for public use, in the arising from said thing, save those restricted
provinces, cities, and municipalities, by law or by the recognized rights of others.
consist of the provincial roads, city streets, - A thing pertaining to one person is
municipal streets, the squares, fountains, completely subjected to his will in
public waters, promenades, and public everything not prohibited by law or
works for public service paid for by said the concurrence with the rights of
provinces, cities, or municipalities. another.
- Can own both things and rights.
REGALIAN DOCTRINE- all properties not
clearly falling within private ownership is
owned by the State. RIGHTS OF AN OWNER:
1. JUS UTENDI- RIGHT TO USE
WHO MAY OWN LANDS? 2. JUS FRUENDI- RIGHT TO FRUITS
Only Filipino citizen can acquire alienable 3. JUS DISPONDENDI- RIGHT TO
and disposable public lands. DISPOSE
4. JUS VINDICANDI- RIGHT TO
CAN ALIEN ACQUIRE PRIVATE OWNERSHIP RECOVER
OVER THE LANDS? 5. JUS ABUTENDI- RIGHT TO ABUSE
As a general rule, aliens have no right to 6. RIGHT TO EXCLUDE
acquire any public or private lands in the 7. RIGHT TO ENCLOSE
Philippines. However, through hereditary

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FOR REAL PROPERTY:


KINDS OF OWNERSHIP: 1. FORCIBLE ENTRY OR UNLAWFUL
1. FULL OWNERSHIP- includes all the DETAINER
rights of an owner 2. ACCION PUBLICIANA
2. NAKED OWNERSHIP- case of 3. ACCION REINVINDICATORIA
usufruct; right to use and right to
fruits has been denied FOR PERSONAL PROPERTY:
3. SOLE OWNERSHIP- ownership 1. REPLEVIN
belongs to only one person ANCILLARY REMEDIES COMMON TO BOTH
4. CO-OWNERSHIP- ownership belongs ACTIONS:
to two or more 1. WRIT OF PRELIMINARY
MANDATORY INJUNCTION
2. WRIT OF POSSESSION
Art. 428. The owner has the right to
enjoy and dispose of a thing, without other Actions for Real Property by the owner:
limitations than those established by law. FORCIBLE ENTRY
The owner has also a right of action - This is an action brought by the
against the holder and possessor of the owner for the recovery of
thing in order to recover it. possession de facto or the material
or physical possession of real
RIGHT TO ENJOY property when it was deprived to
- Includes right to collect the fruits or him through force, intimidation,
benefits strategy, threat, stealth.
- Right to use and utilize - This action must be brought 1 year
from dispossession
RIGHT TO DISPOSE: - The issue here is that the person,
- The power of an ower to sell, being the owner of the property
donate, alienate or encumber his seeks to repossess his property
property. which was materially taken away
from him through FISTS. Otherwise
RIGHT TO RECOVER: put, he is still the owner before and
- Right of the owner to recover the after it was taken, however since the
possession of his property which is property was taken to him, he
unlawfully taken or withheld from cannot use it.
him by another. - Possession is unlawful from the very
- This is a right exclusively granted by beginning (it was taken by a third
the law to an owner but the owner person against the will of the owner)
himself can transfer this right to
another person who can maintain UNLAWFUL DETAINER
the action against the wrongdoer. - Action brought by the landlord,
vendor, vendee or other person
ACTIONS FOR RECOVERY OF POSSESSION when the land was unlawfully
(REMEDY OF OWNER) withheld after the expiration or

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termination of the contract which When is Preliminary Mandatory Injunction


grant the person, not the owner to filed?
hold the real property. Availed of in case of forcible entry and
- This action must be brought one during the appeal, requiring the defendant
year from unlawful possession to do something or give back the possession
either from: 1.) the time of the of the land.
expiration or termination of the
contract; or 2.) from the date of WRIT OF POSSESSION- is an order directing
demand to vacate the sheriff to enter to the land and give the
- The issue in this action is not to possession to the person entitled under the
recover the property because the judgment.
owner is still in possession of the
property in the concept of an owner
nor ownership, but to exact specific WHEN ACCION PUBLICIANA OR ACCION
performances and that is to vacate REIVINDICATORIA MAY BE FILED?
the real property. These two actions is filed where in the
- Possession by the third person is complaint it does not aver the state how
initially lawful through a contract, entry is effected and when dispossession
express or implied but upon started.
expiration or termination of the
same, the person withheld the ----------------------------------------------------------
property from its lawful owner, thus ----------------
the owner cannot exercise his rights DISTINGUISH Forcible Entry from Accion
over the property. Publiciana:
Forcible Entry is distinguish from Accion
ACCION PUBLICIANA Publiciana in the following respects:
- Is a plenary action to recover the 1. Forcible Entry is filed 1 year from
better right of possession. the time of unlawful possession
- The issue here is possession de jure through FISTS; while Accion
- This action will prescribes in 10 publiciana is filed 1 year after the
years which will reckon 1 year after unlawful possession without FISTS,
the unlawful possession. (the action notwithstanding and shall prescribe
must be brought only 1 year after in 10 years.
the unlawful possession) 2. Forcible Entry is concerned with the
- Absence of FISTS issue of right to physical possession
of the real property, while acion
ACCION REIVINDICATORIA publiciana is concerned with the
- Action to recover property based on issue of who has the better right of
the allegation of ownership. possession over the real property.
- Within 10 to 30 years 3. Forcible entry is filed at the MTC
while accion publiciana is filed at the
RTC
----------------------------------------------------------

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CAN A THIRD PERSON EXERCISE THE RIGHT


OF SELF HELP?
WHAT ARE THE LIMITATIONS ON RIGHT OF Generally, the right to use force to defend a
OWNERSHIP: property is available only to the immediate
1. Limitations imposed by the State: possessor, unless he is acting as a third
a. Police Power person coming to the defense of the
b. Power of Eminent Domain property as a negotiorum gestio.
c. Power of Taxation
2. Limitations imposed by the Law:
a. Easement relating to water REQUISITES OF PRINSIPLE OF SELF-HELP:
b. Right of Way 1. Reasonable force is used.
c. Party wall 2. Such force is used by the owner or
d. Light and view lawful possessor.
e. Drainage 3. There is no delay; and
f. Intermediate distance 4. Actual or threatened physical
g. Easement arising from nuisance invasion or usurpation or
h. Lateral and subjacent support. immediately after the dispossession
3. Limitations imposed by the owner to regain possession
4. Those arising from conflict or private
rights
5. Limitations imposed by the
Constitution What is the measure of reasonableness?
The reasonableness of the defensive acts
resorted to by the possessor is determined
Art. 429. The owner or lawful possessor not by what he imagined to exist but by the
of a thing has the right to exclude any objective situation.
person from the enjoyment and disposal
thereof. For this purpose, he may use such Art. 430. Every owner may enclose or
force as may be reasonably necessary to fence his land or tenements by means of
repel or prevent an actual or threatened walls, ditches, live or dead hedges, or by
unlawful physical invasion or usurpation of any other means without detriment to
his property. servitudes constituted thereon.

WHAT IS THE PRINCIPLE OF SELF HELP? What is the limitation on the right of the
This is a principle which authorizes an owner to enclose or fence one’s land or
owner or lawful possessor of a property to tenement?
use reasonable counter-force to prevent or Every owner may enclose or fence his land
stop another person from taking the or tenement by means of walls, ditches, live
former’s property. There must be no delay or dead hedges or by any other means
in the pursuit, otherwise, his recourse will provided that in so fencing the property, no
be to go to the court for the recovery of servitude or easement constituted thereon
property. should be impaired.

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Art. 431. The owner of a thing cannot What is the right of the owner whose
make use thereof in such manner as to property is destructed by reason of state of
injure the rights of a third person. necessity?
The owner will seek reimbursement from all
SIC UTERE TUO UT ALIENUM NON LAEDAS those who benefited from the destruction
- A property owner can use his of his property.
property in any manner he desires
provided he does not injure the WHAT IS THE EFFECT OF ERRORS,
rights of others or greatly impair the MISTAKES OR MISCALCULATIONS IN STATE
public rights and interests of the OF NECESSITTY?
community. If through error, mistake or miscalculation,
a person thought that he is in a state of
Art. 432. The owner of a thing has no necessity when in fact he is not, and in the
right to prohibit the interference of process he destroyed the property, his acts
another with the same, if the interference will be illegal and the owner is justified in
is necessary to avert an imminent danger using counter-force to prevent the
and the threatened damage, compared to destruction of his property. The person who
the damage arising to the owner from the destroyed the property must indemnify the
interference, is much greater. The owner owner of the sacrificed property for
may demand from the person benefited damages brought by his destruction to the
indemnity for the damage to him. property.

STATE OF NECESSITY In case of conflict between state of


Is the principle which authorizes the necessity and state of self-help, state of
destruction of a property which is lesser in necessity will prevail.
value to avert danger poised to another The reason for this is under the state of
property the value of which is much necessity there is no unlawful aggression
greater. when a group of persons acts pursuant to
the right given in a state of necessity.
Under the principle of state of necessity,
the owner of the property is obliged Art. 433. Actual possession under claim
tolerate the destruction of his property to of ownership raises disputable
prevent damage which will be of greater presumption of ownership. The true owner
value than that of his property. must resort to judicial process for the
recovery of the property.
NOTE: In order for the doctrine of state of
necessity to apply, such destruction of WHEN CAN THERE BE A DISPUTABLE
property must be indispensable to prevent PRESUMPTION OF OWNERSHIP?
the damage which is of greater value than There is a disputable presumption of
that of the property. ownership when a person is in actual
possession of the property under the claim
of ownership. Thus, the person in
possession of the property is presumed to

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be the owner subject to strong, clear and or prove he has a strong, clear and credible
convincing evidence to the contrary. evidence, his claim must be dismissed even
if the defendant’s title is weak. The reason
WHAT IS THE RESORT OF THE OWNER for this is in case both evidence it weak, the
REBUTTING THE PRESUMPTION? presumption of ownership will prevail
The owner may resort to judicial process to because there is already ownership
recover the property to the person. presumed. Other reasons are, there is a
possibility that neither the plaintiff nor the
Art. 434. In an action to recover, the defendant is the true owner of the
property must be identified, and the property, being the case, it is the one who is
plaintiff must rely on the strength of his in possession will be preferred; there is a
title and not on the weakness of the presumption raised in favor of the
defendant's claim. defendant and he is not obliged to prove
better title than the plaintiff, it is the
plaintiff who must prove his better title
REQUISITES FOR ACTION TO RECOVER: than the defendant; the possessor is always
1. The plaintiff must properly presumed to be in good faith.
indentified the property;
2. The plaintiff must have better title Art. 435. No person shall be deprived of
over the defendant; and his property except by competent
3. The plaintiff must rely on the authority and for public use and always
strength of his title and not on the upon payment of just compensation.
weakness of defendant’s title
Should this requirement be nit first
complied with, the courts shall protect
In properly identifying the property the and, in proper case, restore the owner in
plaintiff must establish the boundary of the his possession.
land then and the established boundaries
must be exactly the same with the surveyed General rule: No person shall be deprived
one. Failure to do so will justify the of his property.
dismissal of the action. XPN: When through a competent authority,
the private property will be used for public
The plaintiff must have a better title than use and upon just compensation.
the defendant so that it will always be in his
favor. Eminent domain:
This is the right of the state to acquire
WHY DOES THE PLAINTIFF MUST NOT RELY private property for public use upon
ON THE WEAKNESS OF THE DEFENDANT’S payment of just compensation.
CLAIM?
The plaintiff must stand on the strength of Expropriation:
his title and not on the weakness of the It is the process whereby the private
defendant’s claim. This is so because if the property is taken by the competent
plaintiff cannot prove he has a better title authority from its owner for public use.

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decree of title is absolute and grants full


REQUISITES OF EMINENT DOMAIN: ownership to the State, the private
1. Private property is the object of owner cannot recover the property
expropriation; even its public character ceased. If the
2. The property is taken by the State or decree of title has a condition that it will
competent authority; revert back to the owner of the
3. The purpose for taking is for public property when the property is no longer
use; use for public purpose, the owner may
4. The taking must be attended with reacquire the property he previously
due process. owned.

Payment of just compensation


- The object of expropriation is always - The payment of just compensation
a private property which will be need not be paid at the time of
devoted for public use. taking, the law allows it to be paid
- The property must be taken by the within a reasonable time.
State, if the expropriator is not the
State, there must be a specific law WHAT IS THE EFFECT WHEN THE JUST
expressly granting the power of COMPENSATION IS NOT PAID?
eminent domain . As a general rule, when the property is
expropriated for public use and the
How is due process observed? private owner was not paid of the just
The State or any competent authority, compensation, he cannot recover the
through a specific law, may not property, he may go to the COA for the
immediately take the property when it claim of sum of money. However, while
needs such property. The expropriator the law allows that just compensation
must file first the expropriation be not paid immediately at the time of
proceeding before a proper court. This taking, the private owner may recover
is for the purpose to assert that the the property if it is not paid within the
property to be expropriated will be used reasonable time prescribed by the law,
for public use. If the court finds that which is 5 years from the finality of
such property is not really needed for judgment.
public use, the property cannot be
expropriated, CAN THE PRIVATE PROPERTY BE
EXPROPRIATED FOR PRIVATE USE?
CAN THE PREVIOUS PRIVATE OWNER YES, when the purpose of expropriation
RECOVER HIS PROPERTY WHEN ITS USE is for socialized housing to resolve
FOR PUBLIC PURPOSE CEASED? squatting. The fact that only few will
Whether or not the previous private benefit from this will not cease the
owner may recover his property when it essence that it is for public use.
is no longer use for public use depends
on the tenor of the decree of
expropriation issued by the court. If the

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Art. 436. When any property is minerals form part of the property of the
condemned or seized by competent State for the development of national
authority in the interest of health, safety wealth.
or security, the owner thereof shall not be
entitled to compensation, unless he can Art. 437. The owner of a parcel of land is
show that such condemnation or seizure is the owner of its surface and of everything
unjustified. under it, and he can construct thereon any
works or make any plantations and
As a rule, when a private property is excavations which he may deem proper,
expropriated for public use, the private without detriment to servitudes and
owner must be paid with just subject to special laws and ordinances. He
compensation. However, if the private cannot complain of the reasonable
property expropriated is used for the requirements of aerial navigation. (350a)
interest of health, safety or security, the
private owner is not entitled for the just SURFACE AND SUBSURFACE RIGHTS – The
compensation. owner of a parcel of land, no matter how
small, is the owner of the surface thereof.
Art. 437. The owner of a parcel of land is And it is presupposed that he owns the
the owner of its surface and of everything underneath or sub-surface up to the center
under it, and he can construct thereon any of the earth.
works or make any plantations and
excavations which he may deem proper, STANDARD OF SUBSURFACE: Economic
without detriment to servitudes and Utility, up to the center of the earth but
subject to special laws and ordinances. He practically not because its already hot.
cannot complain of the reasonable
requirements of aerial navigation.

WHAT IS THE EXTENT OF THE OWNERSHIP Art. 438. Hidden treasure belongs to the
OF A PARCEL OF LAND? owner of the land, building, or other
The owner of the parcel of land is also the property on which it is found.
owner of the surface and sub-surface
thereof. He is also the owner of the aerial Nevertheless, when the discovery is made
space exactly corresponding to the size of on the property of another, or of the State
his land subject to reasonable requirements or any of its subdivisions, and by chance,
of aerial navigation. one-half thereof shall be allowed to the
finder. If the finder is a trespasser, he shall
Sub-surface right not be entitled to any share of the
The right extended to the owner of the treasure.
parcel of land with respect to its sub-
surface is up to the extent that the owner If the things found be of interest to science
could utilize it. However, when minerals of the arts, the State may acquire them at
found it, it will be owned by the State their just price, which shall be divided in
pursuant to Regalian doctrine as these conformity with the rule stated. (351a)

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Art. 439. By treasure is understood, for *Right of finder employed to look for
legal purposes, any hidden and unknown treasure: No share in the treasure unless
deposit of money, jewelry, or other agreed upon since he was already hired
precious objects, the lawful ownership of hence a receiver of a wage.
which does not appear. (352)
*Married spouses? Automatically to the
conjugal property
HIDDEN TREASURE – unknown deposit of
money, jewelry, or other precious objects, WOULD YOU STILL BE CONSIDERED A
the lawful ownership of which does not FINDER BY CHANCE IF YOU ARE HIRED?
appear.
Yes since you pushed your luck even if it
REQUISITES: was intentional.

1. What is listed and that of the same YAMASHITA TREASURE?


class. Does NOT include minerals 75% - State, 25% finder. The basis of this is
2. The deposit is hidden or unknown PD 7026-A which is a special law enacted
3. The lawful owner cannot be traced for that matter.
or identified. If the lawful owner is
apparent, it is not a hidden treasure CHAPTER 3
RIGHT OF ACCESSION
GR: If the owner is finder, it totally belongs
to the owner of the land, building or other GENERAL PROVISIONS
property where it is found
Art. 440. The ownership of property gives
XPNS: If finder is different from the owner, the right by accession to everything which
finder is entitled to ½ if: is produced thereby, or which is
incorporated or attached thereto, either
1. Discovery was made on the property naturally or artificially. (353)
of another, or of the State or any of
its political subdivisions WHAT IS ACCESSION?
2. Discovery was made by chance The right of accession is the right of
3. He is not a trespasser or agent of ownership of which an owner has over the
landowner products of said thing, as well as to all
things inseparably attached or incorporated
NOTE: The State may in the interest of thereto whether artificially or naturally. The
SCIENCE or ARTS acquire such hidden first part is accession discreta (fruits) and
treasure at a just price to be as allocated the second one is accession continua
above. (attached or incorporated)

*A trespasser is not entitled to get any


share of the treasure. Reason: He cannot be
allowed to benefit from such UNlawful act.

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WHAT ARE THE CLASSIFICATIONS OF II. Mixture (confusion – liquids;


ACCESSION? commixtion – solids)
III. Specification
A. Accession to the fruits (discreta)
1. Natural fruits – spontaneous
products of the soil and the
young of the animals IS ACCESSION A MODE OF ACQUIRING
2. Industrial fruits – those OWNERSHIP?
produced by cultivation or labor No. The only modes of acquiring ownership
3. Civil rights – rents of buildings, are: (STOPID-Love)
price of leased lands and other 1. Succession
property and the amount of 2. Tradition as a consequence of
perpetual or life annuities or certain contracts
other similar income 3. Occupation
B. Accession by attachment or 4. Prescription
incorporation (continua) 5. Intellectual creation
6. Donation
7. Law
aa. Real property
*Article 440 is not applicable to foreshore
I. Accession Industrial land adjacent to the sea because
1. Building automatically it becomes part of the public
2. Planting domain.
3. Sowing

II. Accession natural


SECTION 1. - Right of Accession with
1. Alluvium Respect to What is Produced by Property
2. Avulsion
3. Change of course of Art. 441. To the owner belongs:
rivers (1) The natural fruits;
4. Formation of islands
(2) The industrial fruits;
bb. Personal property
(3) The civil fruits. (354)
I. Adjunction or conjunction
1. Soldering (Soldadura) –
GR: Right to fruit requires no prior act. It is
soldering
automatically vested with the owner.
a. Ferruminatio – objects
are same metals XPN:
b. Plumbutura – objects are
of different metals 1. Antichresis – creditor acquires the
2. Engraftment (Inclusion) right to the fruits
3. Weaving (Tejido) 2. Lease of lands – lessee gets the
4. Painting (Pintura) fruits unless there was a prior
5. Writing (Escritura) agreement

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3. Usufruct – usufructuary entitled to Civil rights – rents of buildings, price of


the fruits leased lands and other property and the
4. Possessor in good faith – entitled to amount of perpetual or life annuities or
the fruits received before the other similar income
possessor is legally interrupted in his
possession Examples: rents of buildings, lands or other
property including personal property like
The judgment detour in possession of a cars for rent, perpetual annuities or other
parcel of land sold under execution is similar income, including interests to loans
entitled to collect the fruits during the one
year period of redemption. *Ownership of an animal offspring when its
progenitors (male and female animals)
A stock dividend is a civil fruit of the original belong to different owners – MOTHER
shares just like the offspring of an animal
which may be sold independently of its Art. 443. He who receives the fruits has the
mother obligation to pay the expenses made by a
third person in their production, gathering,
Art. 442. Natural fruits are the and preservation. (356)
spontaneous products of the soil, and the
young and other products of animals. *Exclusive list of production, gathering of
fruits and preservation. It does not include
Industrial fruits are those produced by improvement of property.
lands of any kind through cultivation or
labor. *Principle behind the need to reimburse is
that unjust enrichment should be avoided
Civil fruits are the rents of buildings, the
price of leases of lands and other property *Third person is the one involved – not a
and the amount of perpetual or life privy in the juridical relations of the
annuities or other similar income. (355a) landowner and the builder, planter or
sower
THREE KINDS OF FRUITS?
*Regardless of loss or gain, third person
Natural fruits – spontaneous products of
should be paid
the soil and the young of the animals
Examples of spontaneous products of the
Art. 444. Only such as are manifest or born
soil: cogon, grass, mushrooms
are considered as natural or industrial
Examples of other products of animal: fruits.
puppies, calves, eggs of fowls, milk of
animals like carabaos, goats, cows With respect to animals, it is sufficient that
they are in the womb of the mother,
Industrial fruits – those produced by although unborn. (357)
cultivation or labor

Examples: corn, palay, cultivated


vegetables, fruits planted by man

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PROPERTY REVIEWER

TIME WHEN FRUITS ARE CONSIDERED TO materials of another, shall pay their value;
EXIST: and, if he acted in bad faith, he shall also
1. Perennial Fruits – physically appear be obliged to the reparation of damages.
on the trees – coconuts, mangoes, The owner of the materials shall have the
durians, jackfruits, no need of right to remove them only in case he can
replanting after bearing fruits do so without injury to the work
2. Annual fruits – deemed to exist from constructed, or without the plantings,
the moment their seedlings appear constructions or works being destroyed.
or sprout from the ground, palay, However, if the landowner acted in bad
monggo, corn, etc faith, the owner of the materials may
3. Young of animals – sufficient that remove them in any event, with a right to
they are obviously subsisting in the be indemnified for damages. (360a)
womb of the dam, although unborn
yet. They do not have to be born INDUSTRIAL ENDEAVORS:
alive with certain hours to become Building – act of erecting a structure or
animals like humans in Article 41. construction of any kind with a roof and
intended for residential, office, social,
commercial or other purposes. A
warehouse is not a building.
SECTION 2. - Right of Accession with
Respect to Immovable Property
Planting – act of setting into the soil or land
seeds or seedlings of trees such as
Art. 445. Whatever is built, planted or
coconuts, mangoes, bananas, etc. It is
sown on the land of another and the
necessary that there have taken roots to be
improvements or repairs made thereon,
considered property of the landowner.
belong to the owner of the land, subject to
the provisions of the following articles.
Sowing – act of scattering over or spreading
(358)
of germinated seeds indiscriminately but
*Materials used belong to third person? evenly through hand or mechanical device.
Builder and sower principally liable, land
owner subsidiary liable GR: The owner of the land is the owner of
whatever is built, planted or sown on that
*Subsidiary liability will only arise when the land, including improvements and repairs
principal has no capacity to pay or is made thereon.
insolvent XPN: The builder, planter, sower or third
person subject to knowing if he is in good
Art. 446. All works, sowing, and planting faith or bad faith.
are presumed made by the owner and at
his expense, unless the contrary is proved. Under the FC, a building constructed on the
(359) land of one of the spouses at the expense of
the conjugal partnership will belong to the
Art. 447. The owner of the land who makes partnership or to the spouse who owns the
thereon, personally or through another, land depending on which of two properties
plantings, constructions or works with the has a higher value. If the land is more

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valuable than the building, the building shall *The owner of a tree has a right to uproot
be owned by the owner of the land and his own tree even if it is beneficial to other
vice-versa subject to reimbursement at the tenement as shade.
time of the liquidation of the conjugal
partnership. GOOD FAITH (LO) – believes that the
materials which he used belonged to him. If
LAND OWNER (LO) is Owner of Materials he knew from the outset, that they do not
BUILDER, PLANTER (OM) belong to him, he is in bad faith.
OR SOWER (BPS) BAD FAITH (OM) – he knew of the fact that
GOOD FAITH GOOD FAITH his materials are being utilized in the
-Acquire and 1. Remove materials construction of a building and he
becomes the owner if w/o injury to work manifested no opposition thereto, he is bad
of the building etc or w/o plantings or faith. He cannot be heard to complain. He
after paying constructions being loses his materials and at the same time, he
indemnity for value destroyed (Art 447) loses his right to reimbursement or
(Art 447) damages. Additionally, he can even be
2. Receive indemnity made liable for consequential damages
for value of sustained by the owner of the land.
materials provided
he does not remove GOOD FAITH (OM) – has no knowledge of
materials the fact that his materials are being used by
BAD FAITH GOOD FAITH anyone
-Acquire after paying 1. Remove materials
value of materials in any event Art. 448. The owner of the land on which
and indemnity for anything has been built, sown or planted in
damages but subject 2. Be indemnified for good faith, shall have the right to
to the right of OM to damages appropriate as his own the works, sowing
remove (Art 447 as (reimbursement) or planting, after payment of the
per 454) (Art 447 as per 454) 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
GOOD FAITH BAD FAITH the one who sowed, the proper rent.
-Acquire w/o paying -lose materials w/o However, the builder or planter cannot be
indemnity right to be obliged to buy the land if its value is
indemnified considerably more than that of the
BAD FAITH BAD FAITH building or trees. In such case, he shall pay
-Same as though -Same as though reasonable rent, if the owner of the land
both acted in good both acted in good does not choose to appropriate the
faith (in pari delicto) faith (in pari delicto) building or trees after proper indemnity.
The parties shall agree upon the terms of
Co-ownership not Co-ownership not the lease and in case of disagreement, the
contemplated contemplated court shall fix the terms thereof. (361a)

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*LO has the choice to decide removed, in order to replace things in their
former condition at the expense of the
*OL/BSP (GF) person who built, planted or sowed; or he
-Appropriate, must pay, oblige to pay for may compel the builder or planter to pay
the land, sowed – rent the price of the land, and the sower the
proper rent. (363a)
*Article not applicable to lessee since he
builds at his own risk being aware that he is Art. 451. In the cases of the two preceding
merely a lessee articles, the landowner is entitled to
damages from the builder, planter or
Art. 449. He who builds, plants or sows in sower. (n)
bad faith on the land of another, loses
what is built, planted or sown without *450-451 – Alternative rights
right to indemnity. (362)
Art. 452. The builder, planter or sower in
*BSP (BF) – loses the things without right to bad faith is entitled to reimbursement for
indemnity the necessary expenses of preservation of
the land. (n)
EXCEPTION: necessary expenses for
preservation Art. 453. If there was bad faith, not only on
the part of the person who built, planted
REMEDIES OF LANDOWNER ON BUILLDER
or sowed on the land of another, but also
IN BF:
on the part of the owner of such land, the
1. Appropriate what has been built rights of one and the other shall be the
without any obligation to pay same as though both had acted in good
indemnity therefore faith.
2. Demand that the builder remove
what has been built It is understood that there is bad faith on
3. Compel the builder to pay the value the part of the landowner whenever the
of the land act was done with his knowledge and
without opposition on his part. (354a)
Art. 449. He who builds, plants or sows in
bad faith on the land of another, loses *Both in BF: apply rule as if both are in good
what is built, planted or sown without faith
right to indemnity. (362)
Art. 454. When the landowner acted in bad
Accession effect of LO/BPS in BF? faith and the builder, planter or sower
proceeded in good faith, the provisions of
They become in GF. Apply 448. article 447 shall apply. (n)

Art. 450. The owner of the land on which Art. 455. If the materials, plants or seeds
anything has been built, planted or sown in belong to a third person who has not acted
bad faith may demand the demolition of in bad faith, the owner of the land shall
the work, or that the planting or sowing be answer subsidiarily for their value and only

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in the event that the one who made use of *If caused by fish traps – not artificial, with
them has no property with which to pay. deliberate desire

This provision shall not apply if the owner REASON WHY GIVEN TO RIPARIAN
makes use of the right granted by article OWNER:
450. If the owner of the materials, plants 1. Person is in the best position to
or seeds has been paid by the builder, cultivate the land
planter or sower, the latter may demand 2. To offset his loss for possible erosion
from the landowner the value of the of his estate due to current of river
materials and labor. (365a) 3. To compensate for his sufferings or
burdens arising from subjection of
Art. 456. In the cases regulated in the his land to encumbrances or legal
preceding articles, good faith does not easements
necessarily exclude negligence, which gives
right to damages under article 2176. (n) WHAT IF THE SOIL IS DEPOSITED FROM
THE SEA?
*Good faith is not an excuse for negligence The State owns it

HEIRS OFEMILIANO NAVARRO V IAC and


Art. 457. To the owners of lands adjoining SINFOROSO PASCUAL
the banks of rivers belong the accretion
which they gradually receive from the Manila Bay
effects of the current of the waters. (336)
Bulacan River Talisay River

WHAT IS ALLUVIUM?
It is the soil imperceptibly and gradually FACTS: Petitioner is the owner of the land in
deposited on lands adjoining the banks of question who is seeking for the approval of
rivers caused by the current of the water the court in his application to register his
land. His land is situated in Balanga, Bataan.
WHAT IS ACCRETION? On its north is Manila Bay, Bulacan river on
It is the process whereby soil is deposited its west and talisay river on its east. He
claims that there was accretion when the
REQUISITES: Bulacan river and Talisay river flow
1. Deposit should be gradual downstream and met in Manila Bay thereby
2. Cause is the current of the river depositing sands and soil on Pascual’s
3. River must continue to exist property resulting now to a 14.6 hecatares
4. Increase must be comparatively land.
little
5. Land where accretion took place is ISSUE: W/N there was alluvium that shall
adjacent to a bank of river automatically be owned by the riparian
owner

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HELD: The disputed land is an accretion not Art. 459. Whenever the current of a river,
on a river bank but on a sea bank, or on creek or torrent segregates from an estate
what used to be the foreshore of Manila on its bank a known portion of land and
Bay which adjoined private respondent’s transfers it to another estate, the owner of
own tract on the northern side. It is part of the land to which the segregated portion
the public domain belonged retains the ownership of it,
provided that he removes the same within
*Litoral owner disputed land is intended for two years. (368a)
public uses, and so long as the land in
litigation belongs to the national domain WHAT IS AVULSION?
and is reserved for public uses, it is not It is the process whereby a portion of a land
capable of being appropriated by any is segregated from an estate by the forceful
private person except through express current of a river, creek or torrent and
authorization granted in due form by a transferred to another estate.
competent authority
ELEMENTS OF AVULSION:
WHAT IF THE ACCRETION HAPPEND ON 1. The process is sudden and abrupt
THE LAGUNA DE BAY? causing segregation of a portion of
Since Laguna de Bay is a lake, the accretion land from one estate and
of which shall belong to the owner of the transferring it to another estate
land contiguous thereto. 2. The property detached is known and
identifiable
*An unregistered alluvial property is 3. The ownership of the property is
therefore subject to acquisition through retained by the owner within 2 years
prescription by third persons from detachment
4. The ownership of the detached
*457 is only applicable to banks of rivers property is not automatically vested
in the owner of the tenement to
Art. 458. The owners of estates adjoining which it was attached
ponds or lagoons do not acquire the land
left dry by the natural decrease of the WHAT IS A RIVER?
waters, or lose that inundated by them in It is a natural stream of water, of greater
extraordinary floods. (367) volume that a creek or rivulet flowing, in a
more or less permanent bed or channel,
*Not applicable to lakes because it remains between defined banks or walls, with a
to property of owners current which may either be continuous in
one direction or affected by the ebb and
*When the sea moves toward the estate flow of tide.
and the tide invades it, the invaded
property becomes foreshore land and ELEMENTS:
passes to the realm of the public domain
1. Water
2. Bed
3. Banks

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WHAT IS A CREEK? 6 months claim, 4 years prescriptive period


of recovery
It is a recess or arm extending form a river,
which participates in the ebb and flow of *If there is doubt if it is alluvium or
the sea. A creek is a small stream, less than avulsion, presume alluvium.
a river, and is not a separate independent
stream. Property of public dominion. Art. 461. River beds which are abandoned
through the natural change in the course
of the waters ipso facto belong to the
WHAT IS A TORRENT? owners whose lands are occupied by the
It is a stream of flowing water with great new course in proportion to the area lost.
rapidity and violence. However, the owners of the lands
adjoining the old bed shall have the right
to acquire the same by paying the value
EFFECTS OF AVULSION: thereof, which value shall not exceed the
value of the area occupied by the new bed.
The owner of the land which had been (370a)
segregated retains his ownership over the
land provided he removes the same from ABANDONED RIVERBED?
where it is annexed within 2 years from the Automatically the riparian owner acquires it
time it was segregated from its source and
annexed to another tenement. WHAT IF INUNDATED? OUT OF THE 700
WHAT IF THE 2 YEAR PERIOD HAD SQM, ONLY 200 SQM ATTACHED TO YOUR
ALREADY LAPSED? PROPERTY?
You are the owner in so far as 200 sqm is
The law is silent as to the status of the concerned.
property. However, it is submitted thatin
case of failure of the owner to remove the *If due to forces of nature, a river changed
property within the period provided, the its natural course, creating a new river bed
owner of the tenement to which it had and leaving the old bed dry, the owner of
been appended is entitled to it by principle the invaded land becomes the owner of the
of accretion. If the new owner does not like old bed in proportion to the area he lost.
it, it shall be owned by the State. However, the government has the right and
power to revert back to the course of a new
Art. 460. Trees uprooted and carried away river to its original location.
by the current of the waters belong to the
owner of the land upon which they may be *The Article will not apply if the river has
cast, if the owners do not claim them branched out and created new courses
within six months. If such owners claim without however abandoning the original
them, they shall pay the expenses incurred river bed. In which case, the owners of the
in gathering them or putting them in a safe lands now occupied by the additional
place. (369a) courses of the river would not become the
owners of the bed since it was not
abandoned.

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*Government cannot be restrained from *Formation of Islands on Seas, Lakes and


reverting the river to its former cause but Navigable Rivers – State
cannot be compelled to restore it.
Art. 465. Islands which through successive
WHAT IF THE RIVER DRIED UP? accumulation of alluvial deposits are
It shall be owned by the State. formed in non-navigable and non-floatable
rivers, belong to the owners of the margins
CAN THE OWNER REVERT THE RIVER TO ITS or banks nearest to each of them, or to the
ORIGINAL COURSE? owners of both margins if the island is in
Yes, provided a permit to that purpose was the middle of the river, in which case it
secured from the Secretary of Public Works. shall be divided longitudinally in halves. If
a single island thus formed be more distant
from one margin than from the other, the
Art. 462. Whenever a river, changing its owner of the nearer margin shall be the
course by natural causes, opens a new bed sole owner thereof. (373a)
through a private estate, this bed shall
become of public dominion. (372a)
*The islands shall pertain and belong to the
*New river beds become property of public owners of the margins or banks of the river
dominion nearest each of them. If the island happens
to be striding n the middle of the river, it
shall be divided longitudinally in halves –
thus both owner of the opposite banks of
EFFECT OF ABANDONMENT OF THE the river will have a share on the island
SUBSEQUENT OR NEW RIVER BED: formed.
The new river bed may itself be abandoned,
due to natural causes or artificial causes SECTION 3. - Right of Accession with
authorized by law. In such eventuality, said Respect to Movable Property
owners will get back this previous property
if the course of the river reverts to its
original place. Art. 466. Whenever two movable things
belonging to different owners are, without
Art. 463. Whenever the current of a river bad faith, united in such a way that they
divides itself into branches, leaving a piece form a single object, the owner of the
of land or part thereof isolated, the owner principal thing acquires the accessory,
of the land retains his ownership. He also indemnifying the former owner thereof for
retains it if a portion of land is separated its value. (375)
from the estate by the current. (374)
*Accessory follows the principal
Art. 464. Islands which may be formed on
WHAT IS ADJUNCTION OR CONJUNCTION?
the seas within the jurisdiction of the
It is a process whereby two movable things
Philippines, on lakes, and on navigable or
owned by different persons are joined
floatable rivers belong to the State. (371a)
together without bad faith, in such a way
that they form a single object.

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CHARACTERSITICS: U-S-T 4. Soldering – such as joining a piece of


U- United forming a single object metal to another metal of same kind
S- Inseparable that their separation would belonging to a different owner. This
impair their nature or result in substantial is feruminatio, the objects being of
injury to either thing being of the same metal. If
T- Atleast two movable belonging to plumbatura, metals of the same
different owners kind. The object will belong to the
owner of the principal
OWNER OF THE RESULTING OBJECT: 5. Weaving – such as making a baby
It shall belong to the owner of the principal dress using threads belonging to
thing, but with the obligation to indemnify another. The dress will pertain to
the owner of the accessory for the value of the weaver who owns the cloth.
the latter’s thing.
TEST TO DETERMINE THE PRINCIPAL
*Good faith is necessary in adjunction. It is (ART 467-468)
the condition of the mind where the person 1. That to which the other has been
concerned is not aware that there exists in united as an ornament or for its use
his title or mode of acquisition any flaw or perfection
which invalidates it *If it cannot be determined from Art
467:
If the one has acted in bad faith is the 2. That of greater value
owner of the principal thing, the owner of *If two things are of equal value:
the accessory thing shall have a right to 3. That of greater volume
choose between the former paying him the *When value and volume cannot be
value or that the thing belonging to him be applied
separated, even though for this purpose it 4. That which has greater merits, utility
be necessary to destroy the principal thing; and volume of things
and in both cases, furthermore, there shall
be indemnity for damages.
Art. 467. The principal thing, as between
CLASSES OF ADJUNCTION OR two things incorporated, is deemed to be
CONJUNCTION: that to which the other has been united as
an ornament, or for its use or perfection.
1. Escritura (writing) – writing a poem (376)
on papers belonging to another. The
papers will pertain to the writer PRIMARY FACTORS TO DETERMINE THE
2. Inclusion – such as setting a precious PRINCPAL AND THE ACCESSORY:
stone on a golden ring. The stone
will pertain to the owner of the ring. 1. The thing which is incorporated to
3. Pintura (painting) – such as painting another as an ornament is the
a scenic view on a canvas belonging accessory. The other is the principal.
to another. The canvas will pertain 2. The thing which is added to or
to the painter joined is the accessory. The other is
the principal.

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Art. 468. If it cannot be determined by the *Injury – not destruction


rule given in the preceding article which of
the two things incorporated is the principal *Expenses for the separation must of
one, the thing of the greater value shall be course be borne by the person who caused
so considered, and as between two things the union considering that both parties
of equal value, that of the greater volume.
Art. 470. Whenever the owner of the
In painting and sculpture, writings, printed accessory thing has made the
matter, engraving and lithographs, the incorporation in bad faith, he shall lose the
board, metal, stone, canvas, paper or thing incorporated and shall have the
parchment shall be deemed the accessory obligation to indemnify the owner of the
thing. (377) principal thing for the damages he may
have suffered.
SECONDARY FACTORS TO DETERMINE
PRINCIPAL AND ACCESSORY: If the one who has acted in bad faith is the
owner of the principal thing, the owner of
1. The one which has the greater value the accessory thing shall have a right to
is the principal choose between the former paying him its
2. If they are of equal value, then the value or that the thing belonging to him be
one with greater volume shall be separated, even though for this purpose it
considered the principal be necessary to destroy the principal thing;
and in both cases, furthermore, there shall
SPECIAL CRITERIA IN PmPWELS-Pm: be indemnity for damages.

PM – Printed Matter If either one of the owners has made the


P – Painting incorporation with the knowledge and
W – Writing without the objection of the other, their
E – Engraving respective rights shall be determined as
L – Litography though both acted in good faith. (379a)
S - Sculpture
OWNER OF ACCESSORY ACTING IN BAD
FAITH; CONSEQUENCES:
Art. 469. Whenever the things united can When the owner of the accessory who
be separated without injury, their caused the incorporation acted in bad faith,
respective owners may demand their he shall indemnify the owner of the
separation. principal things for the damages which the
latter has suffered. This is the usual rule
Nevertheless, in case the thing united for when a person acted in bad faith.
the use, embellishment or perfection of
the other, is much more precious than the ABSENCE OF OBJECTION TO THE
principal thing, the owner of the former INCORPORATION – the owner of the
may demand its separation, even though principal or accessory made the union or
the thing to which it has been incorporated incorporation of the things with the
may suffer some injury. (378) knowledge of the other and raising no

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objection thereto, both them recoverable PROPORTIONATE OWNERSHIP IN


from each other. The rule when both COMMIXTIO OR CONFUSIO - The things
parties are in good faith shall apply. may be of the same things or of different
things. When the mixture is by agreement,
Art. 471. Whenever the owner of the the parties may stipulate on the terms and
material employed without his consent has conditions and shall be governed by the law
a right to an indemnity, he may demand on obligations and contracts
that this consist in the delivery of a thing
equal in kind and value, and in all other Art. 473. If by the will of only one owner,
respects, to that employed, or else in the but in good faith, two things of the same
price thereof, according to expert or different kinds are mixed or confused,
appraisal. (380) the rights of the owners shall be
determined by the provisions of the
WAYS OF PAYING INDEMNITY: preceding article.
1. Delivery of a thing similar in kind
and value and in all other respects, If the one who caused the mixture or
or that thing used or incorporated confusion acted in bad faith, he shall lose
by the other party the thing belonging to him thus mixed or
2. Payments of the price as appraised confused, besides being obliged to pay
by experts in case the parties cannot indemnity for the damages caused to the
stipulate on the price. Sentimental owner of the other thing with which his
value shall also be considered. own was mixed. (382)

*One owner acting in good faith, co-


Art. 472. If by the will of their owners two ownership results – If two things whether
things of the same or different kinds are of the same or different kinds are mixed or
mixed, or if the mixture occurs by chance, confused, by the act of the owner of one
and in the latter case the things are not thing in good faith, the rights of the owner
separable without injury, each owner shall shall be in proportion to the value of the
acquire a right proportional to the part things they own. In effect, there is co-
belonging to him, bearing in mind the ownership
value of the things mixed or confused.
(381) SANCTIONS AGAINST AN OWNER ACTING
IN BAD FAITH:
CLASSES OF MIXTURE: 1. Lose the thing belonging to him.
Both in bad faith, as if both are in
1. Confusio – this results when liquids good faith.
belonging to different owners got 2. He shall be liable for damages to the
mixed by agreement or by chance owner of the other thing mixed or
2. Commixtio – this results when solid confused.
matters are mixed by agreement or
by chance Art. 474. One who in good faith employs
the material of another in whole or in part
in order to make a thing of a different kind,

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shall appropriate the thing thus 2. Mixture – atleast 2 objects


transformed as his own, indemnifying the 3. Specificatio – only 1 because it can
owner of the material for its value. be transformed

If the material is more precious than the WHAT IF THERE ARE 2 OR 3 OBJECTS?
transformed thing or is of more value, its Only one is considered a principal.
owner may, at his option, appropriate the
new thing to himself, after first paying
indemnity for the value of the work, or *In adjunction, accessory follows the
demand indemnity for the material. principal? Yes.

If in the making of the thing bad faith *In mixture, accessory follows the
intervened, the owner of the material shall principal? No. Proportional, agreement of
have the right to appropriate the work to the parties. In mixture, there is no
himself without paying anything to the accessory and principal.
maker, or to demand of the latter that he
*Rice mixed by accident, 5 sacks dinorado
indemnify him for the value of the material
rice Juan, 10 sacks jasmine rice Maria. What
and the damages he may have suffered.
would govern the relations? Co-ownership.
However, the owner of the material
Maria owns 10 sacks, 5 sacks Juan.
cannot appropriate the work in case the
PROPORTIONAL OWNERSHIP.
value of the latter, for artistic or scientific
reasons, is considerably more than that of *In adjunction, do the objects return their
the material. (383a) nature when they are joined? Yes.

WHAT IS SPECIFICATIO? *In specificatio? Yes, still the same nature


It is the giving of a new form to a material even if transformed. You just give it a new
belonging to another person through form.
application of labor or industry. The
material used is transformed to another Art. 475. In the preceding articles,
thnigs or is changed in identity. sentimental value shall be duly
appreciated. (n)
Example: Mango fruits becomes mango
juice.
*In indemnifying the value, aside from the
Principal: Labor actual value, consider SENTIMENTAL VALUE
Accessory: Object

WHAT IF MAKER IS IN BF? CHAPTER 3


Owner of material can appropriate it to self QUIETING OF TITLE (n)
without being indemnified because in bad
faith Art. 476. Whenever there is a cloud on title
to real property or any interest therein, by
HOW WOULD YOU DISTINGUISH: reason of any instrument, record, claim,
1. Adjunction – atleast 2 objects encumbrance or proceeding which is

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apparently valid or effective but is in truth plaintiff will be prejudiced or


and in fact invalid, ineffective, voidable, or adversely affected
unenforceable, and may be prejudicial to
said title, an action may be brought to JUSTIFICATIONS FOR QUIETING OF
remove such cloud or to quiet the title. TITLE:
An action may also be brought to prevent a 1. To prevent future or further
cloud from being cast upon title to real litigation on the ownership of the
property or any interest therein. property
2. To protect the true title and
QUIETING OF TITLE – proceeding in equity, possession
the purpose of which is the declaration of 3. To protect real interest of both
the invalidity of a claim on a title or the parties
invalidity of an interest in property adverse 4. To determine and make known the
to that of the plaintiff and thereafter to free precise state of the title for the
plaintiff and all those claiming under him guidance of all
from any hostile claim.
*Quieting of title, WHAT IF WITH
QUASI IN REM – suits against a particular FORGERY? You can file an action to quiet
person or persons in respect to res and title because the deed of sale seemed valid
judgment will apply only to the property in based on presumption of validity. You can
dispute. Conclusive only between parties file an action to quiet title.
involved.
*James who is an agent of Anthony sold the
VESSEL? Can be considered an object of latter’s house. The deed of sale is executed
quieting of title since its value is in a public instrument and there is no
considerably high although it is a personal indication that the authority of the agent is
property not in writing. The deed of sale appears to
be valid and effective on its face.
*Only real property could be the subject As the authority of James to sell was
matter of quieting of title not in writing, the sale is void. Under this
article, Anthony can file a suit against the
REQUISITES OF QUIETING OF TITLE: buyer to quiet his title.
1. Plaintiff must demonstrate a legal or
equitable title to, or an interest in WHAT IF IT IS WRITTEN THAT “WRITTEN
the subject real property AUTHORITY WILL FOLLOW?”
2. Deed, claim or encumbrance that
purportedly casts a cloud on their No need to file actionsince it is already
title in fact invalid and operative obvious that there is an irregularity
despite prima facie appearance of
validity or legal efficacy.
3. Unless defendant is restrained or Art. 477. The plaintiff must have legal or
stopped, the title or interest of the equitable title to, or interest in the real
property which is the subject matter of the

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action. He need not be in possession of need to present evidence to establish


said property. invalidity, then a cloud on the title exists

Art. 478. There may also be an action to QUIETING OF TITLE IS NOT EQUAL TO
quiet title or remove a cloud therefrom RECOVERY OF POSSESSION.
when the contract, instrument or other
obligation has been extinguished or has MAY AN ACTION TO QUIET TITLE BE FILED
terminated, or has been barred by BY A PERSON NOT A POSSESSOR?
extinctive prescription. Yes, what is important is that the plaintiff
should have interest in the property.
Art. 479. The plaintiff must return to the
defendant all benefits he may have RULES ON PRESCRIPTION OF AN ACTION
received from the latter, or reimburse him TO QUIET TITLE:
for expenses that may have redounded to 1. Plaintiff possessor – does NOT
the plaintiff's benefit. prescribe
2. Plaintiff NOT possessor – ordinary
Art. 480. The principles of the general law 10 years, extraordinary 30 years
on the quieting of title are hereby adopted
insofar as they are not in conflict with this WHAT IS THE OBLIGATION OF THE
Code. PLAINTIFF WHEN HE WINS THE CASE:
1. Indemnify necessary expenses
Art. 481. The procedure for the 2. Return benefits received
quieting of title or the removal of a
cloud therefrom shall be governed by GENERAL PRINCIPLES OF LAW:
such rules of court as the Supreme 1. Prescription
Court shall promulgated. 2. Equity
3. Avoid multiplicity of suits
CLOUD – semblance of a title, either legal or 4. Res judicata
equitable, or a cloud of an interest in land
appearing in some legal form but which is, CHAPTER 4
in fact, unfounded, or which it would be RUINOUS BUILDINGS AND TREES IN
inequitable to enforce. DANGER OF FALLING

MINOR SELLING? Art. 482. If a building, wall, column, or any


No because its already obvious that there is other construction is in danger of falling,
an irregularity. the owner shall be obliged to demolish it
or to execute the necessary work in order
TEST TO APPLY TO DETERMINE WHETHER to prevent it from falling.
A CLOUD EXISTS OR NOT If the proprietor does not comply with this
The face of the instrument or contract must obligation, the administrative authorities
be considered closely. If from the four may order the demolition of the structure
corners thereof, it appears that that it is at the expense of the owner, or take
invalid and ineffective contract there is no measures to insure public safety. (389a)
cloud existing on the title. But if there is a

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NECESSARY WORKS MUST INTROUDUCE This is counted from the time the
THE NECESSARY WORKS OR REPAIRS TO construction was finished.
PREVENT IT FROM FALLING.
Art. 483. Whenever a large tree threatens
*If the collapse of the building is the result to fall in such a way as to cause damage to
of any defect in the construction mentioned the land or tenement of another or to
the person who suffered damages on the travelers over a public or private road, the
occasion thereof, may proceed only against owner of the tree shall be obliged to fell
the engineer or architect or contractor in and remove it; and should he not do so, it
accordance with reglementary period 1292. shall be done at his expense by order of
the administrative authorities. (390a)
ADMINISTRATIVE REMEDY – Building
official or City Engineer in cities may order *Refers to large trees, owner is obliged to
the demolition of the structure at the cut or fell the tree and remove cuttings.
expense of the owner, or take measures to Should he not do so, it shall be cut by the
insure public safety. administrative authorities of the place.
Quasi-delict.
LACK OF KNOWLEDGE IS NOT AN EXCUSE
TO OWNER’S LIABILITY VACANT LOT, PLANTED VEGETABLES TO
YOUR PARCEL OF LAND, YOU SAW IT AND
*If the owner refuses to demolish IMMEDIATELY YOU DESTROYED IT. IS
dangerous construction, and it is urgent, no YOUR ACTION PROPER?
need of court order, local authorities can No. During the Marcos time, there was a
demolish it and the expenses shall be borne LAW ON GREEN REVOLUTION. Planting
by the owner. vegetables on vacant lots are possible
hence, your action was not proper. Your
A BUILDING COLLAPSED, REASON IS remedy would be to talk to the planter and
PLANNING OF CONSTRUCTION? settle the differences amicably.

1723
Title III. - CO-OWNERSHIP

Art. 484. There is co-ownership whenever


*If it cannot be determined what is the the ownership of an undivided thing or
reason of the collapse, ALL IS SOLIDARILY right belongs to different persons.
LIABLE.
In default of contracts, or of special
AFTER 5 YEARS, YOU SAW YOUR HOUSE provisions, co-ownership shall be governed
LEAKING. CAN YOU GO AGAINST by the provisions of this Title. (392)
CONTRACTOR?

1723 CO-OWNERSHIP – ownership of two or


more persons over a thing or right which
had not been physically divided between, or

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by and among them. The moment there is a 4. Testamentary disposition or


physical division, co-ownership ceases. donation inter vivos
Ex. Testator or donor prohibits
*To be considered a co-owner, one must partition of the property for a
have a spiritual part of a thing which is not certain period of time
physically divided, or each of them is an 5. Succession – in the case of heir of
owner of the whole, and over the whole he undivided property before partition
exercises the right of dominion, but he is at 6. Chance or fortuitous event –
the same time the owner of the portion discovery of a hidden treasure
which is truly abstract.
*Co-ownership is not limited to corporeal
REQUISITES: things, it can also happen in transmissible
1. Plurality of subjects, atleast two rights. Thus it was held that when the
persons lessee died, his leasehold rights descended
2. Unity of object, not yet divided upon his children who now own the rights
3. Recognition of ideal shares of co- in co-ownership
owners
*Co-ownership has the nature of a trust. A *see table page 212
co-owner cannot acquire the property by
prescription unless there is repudiation of *Co-ownership is not a juridical person,
co-ownership. hence cannot be sued

MAY CO-OWNERSHIP BE GIVEN CAN I ACQUIRE PROPERTY BY


IMPLIEDLY? PRESCRIPTION?
Yes, when no objection alteration was GEN: No.
made. EFFECT? Estoppel, barred from XPN: If there is repudiation.
objecting after
EXTINGUISHMENT OF CO-OWNERSHIP:
RULES TO GOVERN CO-OWNERSHIP: (IN (CALSTEP)
ORDER) 1. Consolidation or merger in one co-
1. Contracts owner
2. Special provisions 2. Acquisitive prescription in favour of
3. Title III of the Code a third person or a co-owner who
repudiates
SOURCESOF CO-OWNERSHIP: 3. Loss or destruction of property co-
1. Contract – voluntary agreement of owned
parties 4. Sale of property co-owned
2. Law 5. Termination of period agfreed upon
Ex. Easement of party walls or by co-owners
absolute community of property 6. Expropriation
3. Occupancy – two persons catch a 7. Judicial or extrajudicial partition
wild animal or fish in the ocean or
gather forest products

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Art. 485. The share of the co-owners, in Equal unless contrary provided
the benefits as well as in the charges, shall
be proportional to their respective *If they have different shares then their
interests. Any stipulation in a contract to participation in the benefits and charges shall
the contrary shall be void. be proportional to their respective interest

The portions belonging to the co-owners in Example:


the co-ownership shall be presumed equal, A, B and C purchased a building for 30M. A
unless the contrary is proved. (393a) contributed 20M, B and C, 5M. The building
earns a yearly net income of 3M.
RIGHTS OF EACH CO-OWNER AS TO THE
THING OWNED IN COMMON: A is entitled to 2M and B and C,
1. To share in the benefits in proportion to P500,000.00.
his interest, provide the charges are
borne in the same proportion If there is charges to pay, the same sharing
a. Contrary stipulation is void. will be followed such as payment of taxes.
Reason: contrary to the essence
of co-ownership EFFECT OF ACCRETION ON THE PROPERTY
b. Presumption is that portions are UNDER A CO-OWNERSHIP:
equal unless contrary is provided If the property is increased, through
2. To use the entire thing according to the accretion has increased in value or area, the
purpose intended(may be altered but by co-owners will share proportionately
agreement, express or implied)
a. It should be without injury or GR: If there is no contribution, no benefits
prejudice to the interest of the co- XPN: Article 417, common law partners. A
ownership partner who did not actually contribute in
b. Without preventing the use of other the acquisition of a property shall be
co-owners deemed to have contributed jointly and
3. Each co-owner may bring an action for shall receive a 50/50 share thereof, if he or
ejectment she took charge of the care and
4. To compel other co-owners to maintenance of the family and the
contribute to expenses for preservation of household.
the thing or right in common and as to
taxes *No co-ownership when a house belong to
*Acts of preservation – notify if a person and the lot to another because the
possible property has already been determined
5. To oppose any act of alteration
6. To protect against act of majority which
are prejudicial to the minority Art. 486. Each co-owner may use the thing
owned in common, provided he does so in
accordance with the purpose for which it is
PRESUMPTION ON THE EXTENT OF A CO- intended and in such a way as not to injure
OWNERSHIP: EQUALITY the interest of the co-ownership or

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prevent the other co-owners from using it any co-owner may file an action against
according to their rights. The purpose of another person.
the co-ownership may be changed by
agreement, express or implied. (394a) *When a co-owner brings an action, it is
deemed instituted for the benefit of all, but
DOES THE OWNER HAVE THE RIGHT TO if the case does not prosper, the other co-
USE THE ENTIRE PROPERTY? owners are not bound by the judgment
Yes. unless they were served with summons,
even as unwilling plaintiffs
WHAT ARE THE LIMITATIONS TO THIS
RIGHT? *A co-owner cannot acquire a property
The thing owned in common should be through prescription, there should be
used only: repudiation
a. According to the purpose of which it
is intended NEGLIGENT CO-OWNER BRINGS ACTION
b. It is without injury or prejudice to AGAINST ANOTHER PERSON FOR CO-
the interest of the co-ownership OWNED PROPERTY. EFFECT?
c. Without preventing the use of other The decision is binding but the expenses
co-owners shall be borne only by the negligent co-
owner.
DETERMINATION OF THE PURPOSE OF THE
PROPERTY: REQUISITES OF PRESCRIPTION IN FAVOR
1. The purpose stipulated in the OF A CO-OWNER:
agreement 1. The owner has performed
2. In default thereof, the purpose for it unequivocal acts of repudiation
was ordinarily adapted to its nature amounting to an ouster of the other
will be considered co-owners
3. In default of the above, the use for 2. Such positive acts of repudiation
which it was devoted to will be have been made known to the other
considered as the purpose co-owners
*By agreement, the co-owners may change 3. Evidence must be clear and
the purpose of the co-ownership convincing

ACTION FOR EJECTMENT:


Art. 487. Any one of the co-owners may 1. Unlawful detainer
bring an action in ejectment. (n) 2. Forcible entry
3. Accion publiciana
EJECTMENT CASE FILED BY A CO-OWNER IS 4. Accion reividicatoria
A REPRESENTATIVE SUIT – An ejectment 5. Quieting of title
case filed by a co-owner need not be joined 6. Replevin
by the other co-owners. It is a
representative suit as the other co-owners Art. 488. Each co-owner shall have a right
are deemed included as plaintiffs. Meaning, to compel the other co-owners to

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contribute to the expenses of preservation obligation by giving something else – his


of the thing or right owned in common and interest in the co-ownership equivalent in
to the taxes. Any one of the latter may value of his share in the expenses and taxes
exempt himself from this obligation by
renouncing so much of his undivided WHO HAS AUTHORITY TO DECIDE ON
interest as may be equivalent to his share NECESSARY EXPENSES?
of the expenses and taxes. No such waiver
shall be made if it is prejudicial to the co- One co-owner provided it is for the benefit
ownership. (395a) of the co-owned property. Compel
contribution.
EXPENSES FOR PRESERVATION – those of
not done, would imperil the existence of Art. 489. Repairs for preservation may be
the property or greatly diminish its value or made at the will of one of the co-owners,
productivity but he must, if practicable, first notify his
co-owners of the necessity for such
*Expenses for luxury or pleasure are not repairs. Expenses to improve or embellish
covered by this Article. Useful expenses, the thing shall be decided upon by a
even if they increase the value of the majority as determined in Article 492. (n)
property, are not covered. Consequently,
without the consent of all co-owners, useful *Expenses to improve or embellish the
and luxury expenses cannot be incurred. If thing shall be decided by the majority co-
they are incurred without the consent of owner representing the controlling interest
the other co-owners, the latter cannot be in the object of the co-ownership
charged therefor.
IMPROVE – to add something new and
*Already paid good to the thing which enhances its value

REMEDY OF A CO—OWNER WHO DOES *In so far as expenses for improvement or


NOT WANT TOCONTRIBUTE: embellishment are concerned, a co-owner
cannot embark on them without securing
GR: He may exempt himself by renouncing the consent of the majority of the co-
“so much of his undivided interest as may owners. Majority is not based on the
be the equivalent to his share of the number of the co-owners but on the
expenses for preservation and taxes.” controlling interest in the object of the co-
ownership
XPN: if the renunciation will be prejudicial
to the co-ownership. The higher *The first sentence of the Article refers to
consideration therefore necessary repairs to preserve the property.
At the will of even one co-owner, necessary
RENUNCIATION, WHEN EFFECTED IS expenses for preservation may be made by
TANTAMOUNT TO DACION EN PAGO – advancing the expenses therefore and he
When renunciation is validly done, it is may later collect from his co-owners the
tantamount to dacion en pago because the latter’s respective shares in the expenses.
debtor co owner is paying his monetary To avoid inconvenience arising from lack of

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warning and as a matter of courtesy, the co- door, common yard and sanitary
owner works common to all, shall be
maintained at the expense of all
NO NOTIFICATION ON NECESSARY the owners pro rata;
REPAIRS. EFFECT?
Still can compel other co-owners to pay (3) The stairs from the entrance to
PROVIDED, the co-owner who initiated the the first story shall be maintained
repairs and paid for it prove the others that at the expense of all the owners pro
there was indeed a need to repair and that rata, with the exception of the
there is reasonableness on the expenses. owner of the ground floor; the
PRACTICAL – lesser expenses stairs from the first to the second
PRACTICABLE – with possibility story shall be preserved at the
expense of all, except the owner of
WHAT IF ON THE NEED FOR NECESSARY the ground floor and the owner of
REPAIRS, THERE WAS AN OPPOSITION, the first story; and so on
WHATS IS THE CONSEQUENCE? successively. (396)
If by reason of the opposition, the property
was damage, the oppose shall borne the *This article is applicable only if there is NO
expenses. AGREEMENT

NECESSARY EXPENSES – CONSENT – One *Condominium is a form of co-ownership.


co-owner sufficient
EMBELISHMENT – EXPENSES – Financial CAN FOREIGNERS ACQUIRE CONDO UNITS?
Majority needed to pursue it GR: No because that will include acquisition
of land which our law does not allow.
XPN: If the common areas are held by
Art. 490. Whenever the different stories of CONDO CORPORATION, foreigner can
a house belong to different owners, if the acquire because the corpo has a right.
titles of ownership do not specify the *If common areas are not held by a condo
terms under which they should contribute corporation, you have TITLE to the land. In
to the necessary expenses and there exists that case, the foreigner cannot acquire
no agreement on the subject, the following condo unit.
rules shall be observed: *In a condo corporation, unit holders are
only shareholders. It must still comply to
(1) The main and party walls, the the 60, 40 Filipino policy.
roof and the other things used in
common, shall be preserved at the Art. 491. None of the co-owners shall,
expense of all the owners in without the consent of the others, make
proportion to the value of the story alterations in the thing owned in common,
belonging to each; even though benefits for all would result
therefrom. However, if the withholding of
(2) Each owner shall bear the cost the consent by one or more of the co-
of maintaining the floor of his story; owners is clearly prejudicial to the
the floor of the entrance, front

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common interest, the courts may afford Whenever a part of the thing belongs
adequate relief. (397a) exclusively to one of the co-owners, and
the remainder is owned in common, the
WHAT IS ALTERATION? preceding provision shall apply only to the
A change which more or less permanently part owned in common. (398)
changes the use of a thing and adversely
affecting the condition of the thing or its ACTS OF ADMINISTRATION – acts of
enjoyment by the others management that do not involve alteration
of the property; those which are temporary
WHO SHALL DECIDE ON EMBELLISHMENT? in character so smuch that they do not bind
There is a need for UNANIMOUS CONSENT. the property for a long time, although they
CAN AN IMPLIES CONSENT FROM A CO- may be renewed; and those which do not
OWNER BE TANTAMOUNT TO A NEED TO create real rights over the common
PAY FOR ITS EMBELLISHMENT EXPENSES? property
No. Only express consent shall be the factor
for the need to pay expenses on EXAMPLES OF ACTS OF ADMINISTRATION:
embellishment. 1. Leasing a parcel of land not more
than a year and not registered
WHEN IS IT ILLEGAL? 2. Borrowing money for urgent repairs
No unanimous consent 3. Paying workers and employees for
salaries
*Everyone will benefit in profit even if not 4. Paying taxes
all consented 5. Filing representative suit

Acts of administration = Acts of


Art. 492. For the administration and better Management
enjoyment of the thing owned in common, *May be delegated to one of the co-owners
the resolutions of the majority of the co- or a third person provided it is the
owners shall be binding. controlling interest, majority.

There shall be no majority unless the WHAT IF MAJORITY CANNOT BE REACHED?


resolution is approved by the co-owners You can ask the court for permission.
who represent the controlling interest in
the object of the co-ownership. LEASE?
More than 1 year – act of alteration
Should there be no majority, or should the More than 6 months with registration – Act
resolution of the majority be seriously of alteration
prejudicial to those interested in the
property owned in common, the court, at *Mortgage is an act of ownership
the instance of an interested party, shall *Obtaining a loan without real estate
order such measures as it may deem mortgage is an act of administration
proper, including the appointment of an
administrator. ARE WE OBLIGED TO INFORM THE
MINORITY OF THE CHANGES?

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Yes. They have the right to be heard. They SUMMARY:


can also assert their right to CO-OWNERSHIP
maladministration even if the ones who are
doing it are the controlling interests. 1. ALTERATIONS 2. ADMINISTRATION

GROUNDS TO QUESTION MAJORITY:


1. Acts of maladministration
2. Fraud
3. Prejudicial to interest CONSENT OF “ALL”

WHAT KIND OF INJUTRY WOULD JUSTIFY GR: FINANCIAL


COURT INTERVENTION? MAJORITY’S
Those that are serious and affects the entire CONSENT
ownership XPN: MINORITY HAS
REMEDY IF
SELLING OR DISPOSING PROPERTY? (YOUR PREJUDICIAL
PART)
Yes but you can only specify measurement PRESERVATION IMPROVEMENTS
and not the specific location since there
was no partition yet.

ONE CO-OWNER FINANCIAL MAJORITY


SUFFICIENT

MAY A CO-OWNER SELL HIS SHARES?


Yes.

DO A CO-OWNER NEED TO ASK


PERMISSION TO OTHER CO-OWNERS?
SPECIFIC PORTION?
No. Ideal share only.

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Art. 493. Each co-owner shall have the full 2. One of the co-owners sold his right
ownership of his part and of the fruits and to a stranger
benefits pertaining thereto, and he may 3. The sale was made before the
therefore alienate, assign or mortgage it, partition
and even substitute another person in its 4. Right of redemption must be
enjoyment, except when personal rights exercised by one or more co-owners
are involved. But the effect of the within 30 days from the time of
alienation or the mortgage, with respect to notification in writing by vendee or
the co-owners, shall be limited to the co-owner vendor
portion which may be alloted to him in the 5. Vendee must be reimbursed for the
division upon the termination of the co- price of sale
ownership. (399)
*Redemption does not terminate co-
*Substitution of a co-owner by another is ownership
violative of the right to privacy
WHO CAN REDEEM?
*A co-owner does not lose his part Legal redemption may only be exercised by
ownership of a co-owned property where the co-owner/s who did not part with his or
his share is mortgaged by another co-owner their pro indiviso share in the property held
without his knowledge and consent in common

MAY THE UNDIVIDED SHARE OF A CO-


OWNER IN A COMMON PROPERTY BE Art. 494. No co-owner shall be obliged to
ATTACHED? remain in the co-ownership. Each co-
Yes. The share can b e attached even if such owner may demand at any time the
share had not been concretely determined. partition of the thing owned in common,
insofar as his share is concerned.
*Co-owner has no right to alienate a
concrete or determinate part of the thing Nevertheless, an agreement to keep the
owned in common thing undivided for a certain period of
time, not exceeding ten years, shall be
*The fact that a concrete portion of the valid. This term may be extended by a new
community property does not render the agreement.
sale void because a contract must be
regarded as valid as far as it is legally A donor or testator may prohibit partition
possible to do so. Such a sale is subject to for a period which shall not exceed twenty
the result of the partition. Hence, the sale is years.
valid to the extent of the ownership of the
co-owner. Example, ¼ of A, it is valid in so Neither shall there be any partition when
far as the ¼ of the property only. it is prohibited by law.

REQUISITES OF LEGAL REDEMPTION: No prescription shall run in favor of a co-


1. There must be co-ownership owner or co-heir against his co-owners or
co-heirs so long as he expressly or

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impliedly recognizes the co-ownership. exceed 20 years. It is not renewable


(400a) because it is impossible to do so

PERPETUAL CO-OWNERSHIP – endless 3. When in the nature of the property in


ownership which the law frowns since it is a common, it cannot be divided such as
cause of conflicts in management and conjugal property and party walls
possession among the co-owners.
4. When partition will render the
*Right to demand partition does not property unserviceable for the use and
prescribe as long as the co-ownership is purpose which it is intended
recognized
WHAT IF IT WILL AFFECT THE USEFULNESS
*A co-owner cannot acquire a property OF THE PROPERTY? WILL IT BE A VALID
owned in common by prescription UNLESS EXCUSE FOR PARTITION? No.
there is repudiation
PIZZA PIE LOT IN EFFECT OF THE
REQUISITES OF A VALID REPUDIATION: PARTITION, WILL IT FALL UNDER
PROHIBITION TO PARTITION?
1. Performance of unequivocal acts of
repudiation amounting to ouster of No. It is the logical and necessary
trust to other co-owners consequence of the partition. It does not
2. Positive acts have been made known render the thing unserviceable.
3. Evidence must be clear and
convincing 4. Issue of ownership had not been
resolved yet
PARTITION – segregation or division of a
property in common to those to whom it PARTITION WILL BE DONE UNTIL DEATH OF
belongs in parts C?

MAY A CO-OWNER DEMAND PARTITION? Valid if C died before the 10 year period

Yes, at anytime because the law Void if C died after the 10 year period
discourages co-ownership because it is
seemingly an imaginary agreement Because death is certain and inevitable.

WHEN IS PARTITION NOT ALLOWED? Art. 495. Notwithstanding the provisions of


the preceding article, the co-owners
1. Indivision within 10 years is cannot demand a physical division of the
stipulated by co-owners thing owned in common, when to do so
2. Co-ownership is imposed as a would render it unserviceable for the use
condition in a donation or last will for which it is intended. But the co-
ownership may be terminated in
*A donor or testator may prohibit accordance with Article 498. (401a)
partition for a period of which shall not

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LEGAL/JURIDICAL PARTITION – you do not not applicable to partition since what is


physically divide the object but only sell the talked about is only partition and there is
object to one co-owner or a third person no conveyance
and divide the proceeds. It is NOT always a
court ordered partition. It still has the force Art. 496. Partition may be made by
of law. agreement between the parties or by
judicial proceedings. Partition shall be
EXAMPLE: Car governed by the Rules of Court insofar as
they are consistent with this Code. (402)
IS IT POSSIBLE DIVIDE THE CAR? REMEDY?
PARTITION – division between two or more
Yes, but it will render the car unserviceable. persons of real or personal property which
Consolidation or merger of rights is the best they own as co-partners, co-owners, etc,
remedy with the right of reimbursement effected by setting apart of such interests
so that they may enjoy and possess it in
XPN: When all does not like to purchase severalty
the property, sell it to another (not co-
owner) and divide proceeds BASIC ISSUES IN PARTITION:

MAY THE RULE BE APPLIED TO A PARCEL 1. Is the plaintiff really the co-owner?
OF LAND OR OBJECTS THAT MAY BE 2. How should the thing be divided?
PHYSICALLY DIVIDED?
HOW IS PARTITION EFFECTED?
Yes, it is applicable to all kinds of property.
Legal or juridical partition can be resorted 1. Agreement between and among the
to even if it is possible for the object to be parties
physically divided. 2. Agreement may be oral or in writing.
It can also be judicial if the
IS ART 495 ABSOLUTELY PROHIBIT agreement involved is realty
PARTITION? through an action against co-owners

No. Only the physical partition of the object *Superior rights over property under
partition is not precluded
KINDS OF PARTITION:
*In case of personalty, if actual partition
1. Juridical could not be made, it may be sold under
2. Physical the discretion of the court and the
proceeds divided among the owners
MAY PARTITION BE MADE ORALLY? after deducting the necessary expenses

Yes, if it is manifest that there is real Art. 497. The creditors or assignees of the
intention on the part of the parties. co-owners may take part in the division of
Moreover, the Statute of Frauds, which the thing owned in common and object to
requires an agreement to be in writing is its being effected without their

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concurrence. But they cannot impugn any RESTRICTIONS TO CREDITORS OR


partition already executed, unless there ASSIGNEE:
has been fraud, or in case it was made
notwithstanding a formal opposition They cannot ANYMORE assail a partition
presented to prevent it, without prejudice that has already been EXECUTED except:
to the right of the debtor or assignor to
maintain its validity. (403) 1. There has been fraud perpetrated
2. It was made despite formal
WHO ARE CREDITORS IN ARTICLE 497? opposition thereto

Those who are creditors of the co-owners The debtor or assignor is given the right
DURING co-ownership. Both ordinary and to rebut the claims of the creditor or
preferred creditors assignee to establish the validity of the
partition
*The creditors are allowed to take part in
the partition because they own part of the Art. 498. Whenever the thing is essentially
interests of the co-owner who made the indivisible and the co-owners cannot agree
assignment or alienation. They cannot that it be allotted to one of them who shall
oppose the implementation of a partition indemnify the others, it shall be sold and
effected without their conformity its proceeds distributed. (404)

IS NOTICE REQUIRED TO THE CREDITORS *Applicable to all kinds of property


FOR PARTITION?
Art. 499. The partition of a thing owned in
Yes but it does not affect the validity of the common shall not prejudice third persons,
partition. The purpose of the notification is who shall retain the rights of mortgage,
to inform the creditors so that they can servitude or any other real rights belonging
participate, this is in line with the principle to them before the division was made.
of due process Personal rights pertaining to third persons
against the co-ownership shall also remain
A ASSIGNED HIS SHARE TO D. B AND C ARE in force, notwithstanding the partition.
ALSO CO-OWNERS. DURING PARTITION, (405)
WHO WILL PARTICIPATE?
*Applicable even to creditors and assignees.
D, when the deed of sale was registered. He The reason is that they were not able to
acts as co-owner. intervene in the partition

NO DEED OF SALE? WHO WILL *I am a third person, did not participate,


PARTICIPATE? rights prejudiced, I cannot challenge the
partition anymore
A as co-owner and D as assignee provided A
did not yet FULLY assigned his rights to the
assignee.

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CAN THE CREDITOR STILL ASSAI the period during which co-
PARTITION? possession lasted. In other words, it
is deemed continous.
Yes if they were defrauded
Title IV. - SOME SPECIAL PROPERTIES
Art. 500. Upon partition, there shall be a
mutual accounting for benefits received CHAPTER I
and reimbursements for expenses made. WATERS
Likewise, each co-owner shall pay for
damages caused by reason of his *CHECK THE CODAL...
negligence or fraud. (n)
WATERS – refers to water underground,
Art. 501. Every co-owner shall, after above the ground, atmosphere and within
partition, be liable for defects of title and the territorial jurisdiction
quality of the portion assigned to each of
the other co-owners. (n) OWNERSHIP OF WATERS – State
ownership:

OBLIGATIONS OF CO-OWNERS AFTER 1. Continuous or intermittent waters


PARTITION: arising on such lands
2. Lakes and lagoons naturally
1. Account for the benefits received occurring on such lands
2. Reimburse expenses incurred by 3. Rain water falling on such lands
others which are legally 4. Subterranean or ground waters
reimbursable, like expenses for 5. Waters in swamps and marshes
preservation of the thing owned in
common WATER RIGHT - privilege granted by State
3. Indemnify the other co-owners for to persons to appropriate and use water.
the damages suffered by them due
to negligence or fraud of the WATER PERMIT - only citizen of the
indemnifying co-owner Philippines, of legal age, or juridical persons
4. Warrant defects of title and quality are allowed to exploit and develop water
of the portions assigned to each of
them WHY IS THERE MAYNILAD?

EFFECTS OF PARTITION: Because there are still necessary things to


be done in order for water to be
1. Confers upon the co-owners appropriated and MAYNILAD has been
exclusive title over the property granted franchise for it to explore and
adjudicated to him develop the water to be accessible for
2. The possession of the co-owner of everyone.
the property adjudicated to him
shall deem exclusive for the period
which shall be deemed exclusive for

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WHAT IS BEING GRANTED BY THE STATE? and produces technology, the


government has no share
Water rights but ownership of water still 2. Co-production – government inputs
remains to the State. to projects and shares in the
expenses of the contractor, not
MAY A FOREIGN BE ALLOWED TO equal share
DISTRIBUTE WATER (FRANCHISE GIVEN BY 3. Joint venture – most common,
CONGRESS)? government and contractor shares,
equity share, gross output of mining
No. Only Filipino citizens and corporations is shared.
4. Financial Technical Assistance
CHAPTER 2 Agreement (FTAA) – large-scale
MINERALS development and utilization of
minerals. It requires $4M capital and
$50M capital investment. 25 years,
Art. 519. Mining claims and rights and renewable for another 25 years.
other matters concerning minerals and
mineral lands are governed by special *You cannot just explore minerals in the
laws. (427a) Philippines without an EXPLORATION
PERMIT – good for a term of 1 years
MINERALS – all inorganic substances found renewable for another 2 years for non
in nature, whether in solid, liquid or metallic minerals, max of 4. 6 years on
gaseous, or any intermediate state, with the metallic minerals.
exception of the soil which supports organic
life, and of ordinary earth, gravel, sand and MINERAL PROCESSING PERMIT –
stone which are used for building or processing of minerals, both Filipino and
construction purposes foreign citizens, 5 years – 5 years, not to
exceed 25 years
MINERAL LANDS – lands in which minerals
exist in sufficient quantity or quality to EXPLORATION – seeking minerals not
justify the necessary expenditures to be knowledgeable where
incurred in extracting or utilizing such
minerals PROCESSING – you already found the
minerals
*MINERAL AGREEMENTS ARE ONLY
ALLOWED FOR 25 YEARS, RENEWABLE FOR *Minerals are special properties
ANOTHER 25 YEARS. MAXIMUM OF 50
YEARS.
CHAPTER 3
WHAT ARE THE MODES IN MINERAL TRADE-MARKS AND TRADE-NAMES
AGREEMENT?
Art. 520. A trade-mark or trade-name duly
1. Mineral Producion Starting registered in the proper government
Agreement – contractor finances bureau or office is owned by and pertains

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to the person, corporation, or firm INFRINGE YOUR PROPERTY UNLESS YOU


registering the same, subject to the REGISTER IT.
provisions of special laws. (n)
UNFAIR COMPETITION – employment of
TRADE-MARK – any visible sign capable of deception as if the product is an original
distinguishing the goods or services of an
enterprise and shall include a stamped or DOMINANCY TEST – similarity in size, form
marked container of goods and color, while relevenat is not conclusive.
If the competing trade-mark contains the
TRADE-NAME – name or designation main or essential or dominant features of
identifying the enterprise another, and confusion and deception or
imitations is not necessary; nor it is
COLLECTIVE MARK – any visible sign necessary that infringing label should
designated as such in the application for suggest an effort to imitate
registration and capable of distinguishing
the origin or any other common Art. 521. The goodwill of a business is
characteristic, including the quality of goods property, and may be transferred together
or services of different enterprises which with the right to use the name under
use the sign under the control of the which the business is conducted. (n)
registered owner in the collective mark
GOOD WILL – special personal property,
WHAT KIND OF PROPERTY IS A consists largely of a reputation for
TRADEMARK? competence, honesty and fair dealing

It is a personal property Art. 522. Trade-marks and trade-names are


governed by special laws. (n)
INFRINGEMENT – happens when there is a
creation of confusion as to the identity of
the products POSSESSION

ELEMENTS OF TRADE-MARK Art.523. Possession is the holding of a


INFRINGEMENT: thing or the enjoyment of a right.

1. Validity of plaintiffs mark WHAT IS POSSESSION?


2. Plaintiffs ownership of the mark
3. Use of the mark or imitation by It is the holding of a thing or the enjoyment
another which causes the confusion of the right
Only the things and rights which are
TODAY, THERE IS NO NEED OF susceptible of being APPROPRIATED may be
REGISTRATION IN THE IPO, AS LONG AS the object of possession.
YOU ARE USING THE TRADEMARK/NAME
FOR A LONG TIME. HOWEVER, YOU CLASSES OF POSSESSION:
CANNOT SUE ANOTHER PERSON IF THEY 1. Possession in one's own name or in
another

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2. Possession in the concept of an ex. possession of a vendee of a piece of


owner or in the concept of a holder land from one who pretends to be the
3. Possession in good faith or owner but is in fact not the owner
possession in bad faith thereof

WHAT ARE THE ELEMENTS OF 4. Possession with title of dominium,


POSSESSION? that is with a just title from the
1. Holding or control of the thing owner - this is possession that
2. Deliberate intention to possess springs from ownership
(animus possidendi
3. Possession by virtue of one's own *MERE POSSESSION cannot defeat the title
right of a holder of a registered Torrens title to
HOW IS THE FIRST ELEMENT real property
ACCOMPLISHED?
The element of holding of a thing is WHAT ARE THE ELEMENTS OF
accomplished by acquiring possession POSSESSION?
through any modes provided in Art 531 1. Occupancy
2. Apprehension
CLASSIFICATION ACCORDING TO DEGREES 3. Right
OF POSSESSION: 4. Intent to possess
1. Possession with a right/title
(GRAMMATICAL DEGREE) - WHAT IS THE PRINCIPAL CHARACTERISITIC
possessor knows that his possession OF POSSESSION?
is wrongful It is presumed ownership
ex. possession of a thief or a usurper of
land DISTINCTION BETWEEN RIGHT TO
2. Possession with juridical title but POSSESSION AND RIGHT OF POSSESSION:
not in the concept of an owner - 1. Right TO Possession (JUS
possession peaceably acquired POSSIDENDI) - an incident or attribute
ex. possession in the concept of a of ownership over a thing
tenant, depositary, agent, bailee, ex. an owner of an apartment has the
trustee, lessee, antithetic creditor - this right to possess it
degree of possession will NEVER ripen
into full ownership as long as there is no 2. Right OF Possession (JUS
repudiation of concept under which POSSESSIONES) -independent right
property is held separate from ownership
ex. a lessee is entitled to possess the
3. Possession with just title or title property that it leased.
sufficient to transfer ownership,
but not from the true owner - this POSSESSOR NEED NOT TO BE THE OWNER
degree of possession ripens into full There is a distinction between possession
ownership by lapse of time and ownership; the possessor of the thing
need not to be the owner thereof, thus a

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lessee is in possession but he is not the BUT until the possession has ripen into full
owner of the property. ownership like by operation of prescription,
the possessor may lose his possession to
Art. 524. Possession may be exercised in those who can establish SUPERIOR RIGHTS
one's own name or in that of another.
Art. 525. The possession of things or rights
Direct Possession - actual possession of a may be had in one of two concepts: either
thing, own name in the concept of owner, or in that of the
Indirect Possession - possession through an holder of the thing or right to keep or
agent, name of another enjoy it, the ownership pertaining to
another person.
KINDS OF INDIRECT POSSESSION:
1. Voluntary - as when the agent TWO CONCEPTS OF POSSESSION:
possesses for the principal by virtue
of agreement 1. Concept of an owner - the possessor
proceeds from the person's belief or
2. Necessary - as when a mother pretension that he is the owner of the thing
possesses for a child still in her as manifested by certain acts of ownership
womb and the public believes he is the owner.
*tax declarations are NOT conclusive
3. Unauthorized - this will become the evidence of ownership, nevertheless they
principal's possession only after are good indicia of possession in the
there has been a ratification without concept of an owner
prejudice to the effects of
negotiorum gestio (inofficious 2. Concept of a holder - the possession
management) does not arise in the belief or conviction
that he is the owner of the thing, because
WHAT IS THE RIGHT OF A POSSESSOR "EN the possessor ACKNOWLEDGES the
CONCEPTO DE DUENO?” ownership of the thing by another person.
A possessor in the concept of an owner can ex. lessee, depositary
do , on the thing or right possessed,
whatever the "owner" of the thing or right WHAT IS THE DISTINCTION BETWEEN
can do. Thus, he can: POSSESSION IN GOOD FAITH AND
POSSESSION IN THE CONCEPT OF AN
1. bring actions to protect and OWNER?
maintain his possession
In possession in good faith, the possessor is
2. ask for the registration of his not aware of any flaw or problem in his
possession title.

3. entitled to just compensation in case In possession in the concept of an owner,


of expropriation the possessor may or may not be aware of
such flaw but nevertheless, he performs

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acts of ownership. He does not recognize


any title of ownership in the hands of *bad faith is not transmissible from a
another person. Here, good faith of bad person to another
faith is immaterial.
EXAMPLES OF GOOD FAITH:
*possession in the concept of an owner is 1. possession on just title under claim
required in acquisitive prescription whether of ownership
there is good or bad faith. 2. a mistake on question of law may be
the basis of good faith
*possession in the eyes of the law does not 3. honest belief on the validity of one's
require a man to have his feet on every right, ignorance of a superior claim
square meter of the ground before he is and absence of intention to
deemed to be in possession. overreach another
4. belief that the person to whom he
Art. 526. He is deemed a possessor in good received it, has the right to convey it
faith who is not aware that there exists in 5. vendee a retro who purchased the
his title or mode of acquisition any flaw property without knowledge of
which invalidates it. infirmity

He is deemed a possessor in bad faith who EXAMPLES OF BAD FAITH:


possesses in any case contrary to the
foregoing. 1. lessee who continued to stay
despite expiration of contract
Mistake upon a doubtful or difficult 2. possessor who are not owners of
question of law may be the basis of good the land and built structures therein
faith. 3. usurper who continues to hold land
without title or good reason, cannot
acquire status of good faith
REQUISITES FOR POSSESSION IN GOOD 4. possessor of land duly registered in
FAITH OR BAD FAITH: another's name
1. The possessor has a title or mode of 5. possessor as a result of simulated
acquisition transfer
2. There is a flaw or defect in said title 6. tenant not the owner
or mode 7. purchaser who failed to make
3. The possessor is aware or unaware necessary investigation when
of the flaw or defect property not registered
8. purchaser of a property subject to
*good faith is ALWAYS presumed. litigation
REASONABLE belief that a prudent man will
investigate into WHAT IS A FOREIGNER WAS ABLE TO
SECURE LANDS AND DIED?
*there is no tacking of bad faith, UNLESS Still bad faith because foreigners are not
the successor in interest had learned of the allowed to acquire lands.
defect in the title and still purchased it

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Art. 527. Good faith is always presumed, BF: with liability


and upon him who alleges bad faith on the
part of a possessor rests the burden of Art. 529. It is presumed that possession
proof. continues to be enjoyed in the same
character in which it was acquired, until
*it is not just and fair to presume bad faith the contrary is proved.

*there is presumption of the continuity of


Art. 528. Possession acquired in good faith the character of possession until the
does not lose this character except in the contrary is proved.
case and from the moment facts exist
which show that the possessor is not
unaware that he possesses the thing Art. 530. Only things and rights which are
improperly or wrongfully. susceptible of being appropriated may be
the object of possession.
The character of good faith remains until *only things susceptible of appropriation
the possessor is shown to have been aware can be an object of possession.
that he possesses the thing improperly or
wrongfully. KINDS OF POSSESSOR:
1. Public - possessor is the Government
How will presumption of good faith cease? 2. Private - possessor is a private person or
When either of the two will be done to the entity
possessor:
*possession of public lands, however long,
1. Extraneous evidence showing does not confer title
defects
2. Filing of complaint for recover by *after death, the human body becomes a
true owner special property in the sense that parts
3. Letter giving knowledge of thereof could be detached and donated by
ownership by another the deceased provided there is a PRE-
4. Judicial summons EXISITNG DOCUMENT like a will, where he,
In short, upon AWARENESS of the possible as a testator allowed some of his organs to
flaw be donated or used for transplantation,
medical or dental, etc. It only becomes
*the receipt of judicial summons converts a effective upon death of the person.
possessor in good faith into a possessor in
bad faith. However, you are still in good *It should be made without payment as a
faith in the eyes of third persons. consideration

WHAT IS THERE WAS FORCE MAJEURE AND


THE PROPERTY WAS DESTROYED?
GF: No liability (GF from the start even if
eventually loses the case)

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Chapter 2 ex. lessee who purchased the property


Art. 531. Possession is acquired by the
material occupation of a thing or the 2. Tradicion constitutum
exercise of a right, or by the fact that it is possessorium - possessor who was the
subject to the action of our will, or by the owner became a possessor under a title less
proper acts and legal formalities than an owner
established for acquiring such right. ex. owner who sold his property

WHAT ARE THE ELEMENTS OF ACQUIRING RIGHT OF POSSESSION:


POSSESSION?
1. Corpus - refers to the existence of a thing 1. Tradicion Symbolica -
and its holding constructive delivery of a mere
2. Animus - refers to the intent to possess symbol placing the thing under the
the thing control of a transferee

*even is somebody is holding the thing, but 2. Tradicion Longa Manu -


there is no intention to exercise a right over constructive delivery by pointing
it, it is not possession the former of the things to be
transferred
WHAT IS THE DIFFERENCE BETWEEN
ACTUAL POSSESSION AND CONSTRUCTIVE POSSESSION IN THE CONCEPT OF AN
POSSESSION? OWNER VS. POSSESSOR IN GOOD FAITH –
Possessor in the concept of an owner ripens
Actual possession consists in the into ownership while a possessor in good
manifestation of acts of dominion over
faith, you act as if you are the owner,
property of such a nature as a party would
naturally exercise over his own. On the number of years helps you in the acquisitive
other hand, constructive possession may prescription
be had through succession, donation,
execution of public instruments, or
possession by sheriff by virtue of a court Art. 532. Possession may be acquired by
order, the same person who is to enjoy it, by his
legal representative, by his agent, or by
*Material occupation is the actual holding any person without any power whatever:
of thing, not of rights but in the last case, the possession shall
not be considered as acquired until the
person in whose name the act of
KINDS OF CONSTRUCTIVE DELIVERY: possession was executed has ratified the
same, without prejudice to the juridical
1. Tradicion brevi manu - from being consequences of negotiorum gestio in a
a possessor by title other than ownership, it proper case.
continues to possess it now under
ownership

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KINDS OF POSSESSION ACCORDING TO voluntary took the management of the


PERSON OF POSSESSOR: former. Retroactivity is the better rule to
prevent any break or interruption in the
1. Personal Possession - possession possession acquired by the gestor for the
acquired by the same person who principal.
is to enjoy it.
WHAT IS THE PURPOSE OF RATIFICATION?
REQUISITES: To reimburse the gestor who voluntary took
a. capacity to possess management over the property
b. intent to possess
c. susceptibility to the object possessed
2. Possession through a legal Art. 533. The possession of hereditary
representative - agent appointed by property is deemed transmitted to the heir
principal without interruption and from the
moment of the death of the decedent, in
REQUISITES: case the inheritance is accepted.
a. capacity of representative or agent to One who validly renounces an inheritance
possess is deemed never to have possessed the
b. intent to possess same.
c. agent or representative does it not for
himself When is the heir deemed to have
d. capacity of principal possessed the property?
If he accepts, from the moment the death
*this is usually done through the since there is no interruption. If he refuses,
appointment of an agent under a GENERAL deemed to have never possessed it.
or SPECIAL POWER OF ATTORNEY.
What is the reason for the rule on
2. Possession through a person uninterruption?
without authority - person is not The purpose is to prevent vacuum as
clothed with authority supposed to regards possession during the interim
be principal period between the death of the
descendant and the heir's acceptance.
REQUISITES:
a. capacity to possess on supposed principal
b. intent to possess SITUATION 1:
c. act of ratification by principal over the 2000 – DEATH OF DESCENDENT
acquisition of possession 2005 – ACCEPTED BY HEIR
WHEN DID HE COMMENCE TO POSSESS
*the ratification does not suppress the THE PROPERY?
effects of negotiorum gestio 2000, presumption of acceptance

*the principal is deemed to have acquired SITUATION 2:


possession from the time the gestor had 2000 – DEATH
2995 – REJECTED

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WHEN DID HE COMMENCE TO POSSESS HOW MANY MORE YEARS SHOULD BE


THE PROPERTY? POSSESS THE PROPERTY TO OWN IT BY
He never possessed the property. ACQUISITVE PRESCRIPTION?
WHO IS IN POSSESSION OF PROPERTY IN 10 more years
2000 PRIOR REJECTION?
No one since he rejected the property SITUATION 2:
A DIED 2010 (BF) – 20 YEARS POSSESSION
*In case there are no more heirs, the B – DESCENDENT (BF)
property shall revert back to the STATE HOW MANY MORE YEARS SHOULD BE
POSSESS THE PROPERTY TO OWN IT BY
ACQUISITVE PRESCRIPTION?
Art. 534. On who succeeds by hereditary 30 years
title shall not suffer the consequences of
the wrongful possession of the decedent, if WILL THE GOOD FAITH OF THE HEIRS
it is not shown that he was aware of the ERASE THE BAD FAITH OF THE DECEDENT?
flaws affecting it; but the effects of No because good/bad faith is personal to a
possession in good faith shall not benefit person
him except from the date of the death of
the decedent.
Art. 535. Minors and incapacitated persons
*the heir will not be saddled with the dire may acquire the possession of things; but
consequences of possession in bad faith of they need the assistance of their legal
his decedent, if it is not shown that he was representatives in order to exercise the
aware of the flaws or defects in the rights which from the possession arise in
possession of his predecessor in interest their favor.

*effects of possession in good faith shall not Minors - below 18 years of age
benefit him except upon the death of the Incapacitated persons - do not have the
descendent capacity to act
ex.
WHAT IS THE REASON FOR THE RULE THAT a. insane
BAD FAITH CANNOT BE TRANSMITTED? b. imbecile
It is only a state of mind personal to the c. deaf-mute
person who acted. d. civil interdictee
e. prodigal or spendthrifts
WHEN WILL THE GOOD FAITH OF f. absentee
SUCCESSOR COMMENCE?
From the time of death of decedent GENERAL RULE: they should be provided
legal representatives to acquire possession
SITUATION 1: of things
A DIED 2010 (BF) – 20 YEARS POSSESSION XPN: if the delivery is simultaneous
B – DESCENDENT (GF) Example: Minors buying at sari-sari store

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Art. 536. In no case may possession be 2. acts executed clandestinely and without
acquired through force or intimidation as the knowledge of the possessor which
long as there is a possessor who objects means that:
thereto. He who believes that he has an a. acts are not public
action or a right to deprive another of the b. unknown to the owner or possessor
holding of a thing, must invoke the aid of 3. mere tolerance by the owner or
the competent court, if the holder should possessor
refuse to deliver the thing. Why? Because it is not adverse.

*applicable to both movable or immovable WHAT CRIMINAL CASES MAY BE FILED


property AGAINST A VIOLATOR?
Coercion or trespass to dwelling
*In case there is no objection, prescription
may apply Art. 537. Acts merely tolerated, and those
executed clandestinely and without the
GENERAL RULE: Possession cannot be knowledge of the possessor of a thing, or
acquired through force or intimidation by violence, do not affect possession.
EVEN by the owner of the property
XPN: PRINCIPLE OF SELF-HELP ACTS MERELY TOLERATED - those acts
allowed by the owner not by reason of duty
*criminal actions may arise from forceful or obligation but by impulse of sense of
illegal eviction neighborhood or good familiarity with
persons.
WHEN IS EMPLOYMENT OF REASONABLE
FORCE BY THE OWNER ALLOWED? *do not affect possession
The moment he excludes the person from
the enjoyment and disposal of his property *possession of land by tolerance become
using force reasonably necessary to repel or unlawful detainer from the time there is a
prevent an actual or threatened unlawful demand to vacate
physical invasion or usurpation of property.
This is also known as PRINCIPLE OF SELF- *there is an implied promise that
HELP. It authorizes the lawful possessor to eventually, he will vacate the place
use force to repel or prevent an actual or *squatters have no possessory rights
threatened unlawful physical invasion of
property-whether realty or personalty. GENERAL RULE: Possession cannot be
recognized at the same time in two
WHAT ARE THE ACTS WHICH DO NOT GIVE different persons
RISE TO POSSESSION? XPN: co-ownership which carries with it
1. acquired through force or intimidation, possession and other possessions in
or violence as long as there is possessor different concepts
who objects thereto

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Art. 538. Possession as a fact cannot be RIGHTS OF EVERY POSSESSOR:


recognized at the same time in two 1. be respected in his possession
different personalities except in the cases 2. be protected in or restored to said
of co-possession. Should a question arise possession by legal means should he
regarding the fact of possession, the be disturbed therein
present possessor shall be preferred; if 3. secure from a competent court in an
there are two possessors, the one longer in action for forcible entry the proper
possession; if the dates of the possession writ to restore him in his possession
are the same, the one who presents a title;
and if all these conditions are equal, the *only the possession acquired and enjoyed
thing shall be placed in judicial deposit in the concept of an owner can serve as a
pending determination of its possession or title for acquiring dominion
ownership through proper proceedings.
*mere tax declarations, DO NOT vest or
RULES OF PREFERENCE: prove ownership of the property in the
1. actual possessor shall be preferred declarant. Yet, it is undeniably coupled with
2. if there are two possessors, the one actual possession an is a great indicia on the
longer in possession claim of ownership
3. dates of possession the same, the
one with the title *the ONLY issue in ejectment is possession
4. if all of the above are equal, the fact
of judicial determination shall be *actual prior possession is required in
resorted to, in the meantime, it shall forcible entry
be placed in judicial deposit
*complainant in ejectment case must allege
CHAPTER 3 and prove prior physical possession
EFFECTS OF POSSESSION
*prior institution of an action for unlawful
Art. 539. Every possessor has a right to be detainer, a DEMAND to oblige lessee to pay
respected in his possession; and should he or vacate is necessary, otherwise,
be disturbed therein he shall be protected jurisdiction cannot be acquired by MTC.
in or restored to said possession by the
means established by the laws and the *notice to vacate is needed only when the
Rules of Court. ground is lessee's failure to pay rent or
A possessor deprived of his possession comply with terms of lease
through forcible entry may within ten days
from the filing of the complaint present a *in ejectment, the only issue involved is
motion to secure from the competent possession de facto
court, in the action for forcible entry, a
writ of preliminary mandatory injunction WHAT IS THE LIMITATION TO INJUCTIONS?
to restore him in his possession. The court It is not available to take a property out of
shall decide the motion within thirty (30) possession of a person and place it into that
days from the filing thereof.

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of another whose title has not been clearly *Just title by prescription can be attacked
established. collaterally.
*Upon registration, it becomes a valid and
*resolution of an issue of ownership is NOT true title
a bar to a separate action to finally
determine issue of ownership WHAT IS A PUTATIVE TITLE?
A kind of title where a person has the
*possessor in bad faith is also allowed for as impression and belief that he is the owner
long as the act done is not yet a criminal of the property; however, he is not the
one owner there being NO mode of acquiring
ownership present.
Art. 540. Only the possession acquired and
enjoyed in the concept of owner can serve ex. "A" is in possession of a property which
as a title for acquiring dominion. he believes to be his own due to impression
that he inherited it as an adopted child.
*Just title is not limited to documents which However, eventually it was discovered that
are sufficient to transfer ownership. it can the adoption process was void.
cover acts, even verbalacts which are legally Consequently, there is no successional right
sufficient to transmit ownership of property has been transferred.Another example
of a real right. would be possession of a thief.

WHAT IS THE DIFFERENCE BETWEEN JUST PAYMENT OF REAL TAXES PLUS POSSESSION
TITLE IN POSSESSION AND JUST TITLE IN IN THE CONCEPT OF A HOLDER =STRONG
PRESCRIPTION? EVIDENCE OF OWNERSHIP

In just title in possession, it is a valid title Art. 541. A possessor in the concept of
sufficient to transfer ownership. It is owner has in his favor the legal
presumed in possesssion. In just title in presumption that he possesses with a just
prescription, the title is a colorable title title and he cannot be obliged to show or
meaning the grantor is not the owner. It is prove it.
not presumed.
WHAT ARE THE PRESUMPTIONS OF LAW IN
HOW WOULD YOU DISTINGUISH JUST FAVOR OF POSSESSION?
TITLE FROM TRUE AND VALID TITLE? 1. Presumption of continuance of
Just title is rebuttable while a valid title is possession
not rebuttable hence a registered title. 2. Uninterrupted possession of
hereditary property
*True and valid title prevails over a just 3. Possession with just title
title. 4. Exclusive possession of common
property
Deed of sale = true and valid title 5. Possession of movables with real
property
6. Uninterrupted possession

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2. Desist complain
WHEN IS THE PRESUMPTION THAT A 3. Absolve from complain
POSSESSOR HAS A JUST TITLE APPLICABLE?
REQUISITES: Extra judicial Interruption - the person
1. He must be in possession himself sends demand letters or
2. Possession must be in the concept of an approaches the other person personally
owner

WHAT ARE THE REASONS FOR THE Art. 543. Each one of the participants of a
PRESUMPTION? thing possessed in common shall be
1. Presumption that one is in good faith deemed to have exclusively possessed the
2. Inconvenience of carrying proof of part which may be allotted to him upon
ownership around the division thereof, for the entire period
during which the co-possession lasted.
FOR PURPOSES OF PRESCRIPTION, IS THIS Interruption in the possession of the whole
PRESUMPTION APPLICABLE? or a part of a thing possessed in common
No. shall be to the prejudice of all the
possessors. However, in case of civil
IS THE POSSESSOR OBLIGED TO SHOW OR interruption, the Rules of Court shall apply.
PROVE JUST TITLE?
No. He is presumed to be the owner *Upon the partition of the property in
thereof, UNLESS there be VALID REASON. common, each one of the co-owners shall
The remedy of the one seeking for it is be deemed in possession of that portion
JUDICIAL PROCESS for recovery of property. alloted to him from the time the partition is
made.
Art. 542. The possession of real property
presumes that of the movables therein, so Example: "A", "B" and "C" are brothers.
long as it is not shown or proved that they They inherited a parcel of land from their
should be excluded. father in 1988 and partitioned it in 1999. All
are in good faith. Anyone who shall claim
GENERAL RULE: The possession of rights in 1999 against any of the shares
movables in an immovable is presumed, alloted to the participants in the partition
unless it is shown that they should be will fail for the reason that the possession
excluded began in 1988 NOT in 1999, and therefore,
XPN: If it has been proven that the the ownership of the participants had
movables are not appurtenent thereto. As already been vested on the basis of
when movables are merely deposited for ordinary prescription, which requires only
safekeeping. 10 years of continuous possession.

Civil Interruption - serving of judicial *If there is interruption, all co-possessors


summons affected.
XPN: 1. Void for lack of solemnities of
judicial summons

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Art. 544. A possessor in good faith is of the growing fruits, as an indemnity for
entitled to the fruits received before the his part of the expenses of cultivation and
possession is legally interrupted. the net proceeds; the possessor in good
faith who for any reason whatever should
Natural and industrial fruits are considered refuse to accept this concession, shall lose
received from the time they are gathered the right to be indemnified in any other
or severed. manner.
Civil fruits are deemed to accrue daily and
belong to the possessor in good faith in *Not applicable to loss, only to proceeds.
that proportion. What shall be done is still in proportion but
will not consider time of possession
***REFER TO TABLE*** anymore

MEANING OF FRUITS: *Also not applicable to bad faith, only to


1. Natural Fruits - spontaneous good faith
products of the soil and the young of
animals HOW WILL YOU APPLY ARTICLE 545?
2. Industrial Fruits - produced by lands STEPS:
of any kind through cultivation or 1. Total expenses be deducted from the
labor proceeds of the gross harveest by
3. Civil Fruits - rents of buildings, price reimbursing the spenders
of lease of lands and other property. 2. Net harvest be divided proportionately
between the spenders in accordance with
Charges - refer to the expenses for payment the length of their respective possessions.
of taxes, interest on mortgage obligations.
These charges shall be divided in the same *In case of refusal, it must be DELIBERATE
proportion as in the division or sharing of
the expenses for cultivation or net harvest. Pro rata sharing - proportional at the time
of possession
*In civil fruits, actual receipt of is
immaterial

Art. 545. If at the time the good faith Art. 546. Necessary expenses shall be
ceases, there should be any natural or refunded to every possessor; but only the
industrial fruits, the possessor shall have a possessor in good faith may retain the
right to a part of the expenses of thing until he has been reimbursed
cultivation, and to a part of the net therefore.
harvest, both in proportion to the time of Useful expenses shall be refunded only to
the possession. the possessor in good faith with the same
The charges shall be divided on the same right of retention, the person who has
basis by the two possessors. defeated him in the possession having the
The owner of the thing may, should he so option of refunding the amount of the
desire, give the possessor in good faith the expenses or of paying the increase in value
right to finish the cultivation and gathering

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which the thing may have acquired by Paras does not consider it as one, still Judge
reason thereof. Quiambao, in her humble opinion considers
TAXES AS NECESSARY EXPENSES.

WHAT ARE NECESSARY EXPENSES? Art. 547. If the useful improvements can
Those made for the preservation of the be removed without damage to the
property or those without which, the thing principal thing, the possessor in good faith
would deteriorate or be lost. may remove them, unless the person who
Example: ordinary repairs required by the recovers the possession exercises the
wear and tear dueto the natural use of the option under paragraph 2 of the preceding
thing. article.
What are useful expenses?
Those which ADDS value to the things or
WHAT ARE THE RIGHS OF A POSSESSOR augment its income to increase its
WITH REGARD TO NECESSARY EXPENSES? usefulness or better serve the purpose for
GF: which it is intended.
1. right to refund Example: cutting the shrubs
2. right of retention
-during existence not required to pay rent WHAT ARE THE RIGHTS OF A POSSESSOR
nor damages pending payment WITH REGARD USEFUL EXPENSES?
GF:
BF: right to refund ONLY 1. Right to refund
2. Right of retention
3. Right of removal provided:
WHY IS THERE NO RIGHT TO RETENTION IN a. without damage to the principal thing
CASE OF BF? b. subject to the superior right of the
As punishment for his bad faith. prevailing party to keep the imnprovements
by paying the expenses or the increase in
IS THERE RIGHT OF REMOVAL? value
No. Whether good faith of bad faith.
BF: NO RIGHT
WHAT ARE THE ACQUISITIVE
PRESCRIPTION PERIODS? Art. 548. Expenses for pure luxury or mere
1. Movable pleasure shall not be refunded to the
GF or ordinary prescription: 4 years possessor in good faith; but he may
BF or extraordinary prescription: 8 years remove the ornaments with which he has
2. Immovable embellished the principal thing if it suffers
GF or ordinary prescription: 10 years no injury thereby, and if his successor in
BF or extraordinary prescription: 30 years the possession does not prefer to refund
the amount expended.

*Judge Quiambao’s important note: Taxes


are necessary expenses. Eventhough Justice

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WHAT ARE THE EXPENSES FOR PURE Art. 553. One who recovers possession
LUXURY OR MERE PLEASURE? shall not be obliged to pay for
Those which are not necessary for the improvements which have ceased to exist
preservation of a thing nor o they increase at the time he takes possession of the
its productivity, but merely to embellish the thing. (458)
thing and for its enjoyment and
convenience. Art. 554. A present possessor who shows
Example: water fountains in gardens his possession at some previous time, is
presumed to have held possession also
Art. 549. The possessor in bad faith shall during the intermediate period, in the
reimburse the fruits received and those absence of proof to the contrary.
which the legitimate possessor could have
received, and shall have a right only to the
expenses mentioned in paragraph 1 of
Article 546 and in Article 443. The
expenses incurred in improvements for Art. 556. The possession of movables is not
pure luxury or mere pleasure shall not be deemed lost so long as they remain under
refunded to the possessor in bad faith, but the control of the possessor, even though
he may remove the objects for which such for the time being he may not know their
expenses have been incurred, provided whereabouts.
that the thing suffers no injury thereby,
and that the lawful possessor does not *General location is sufficient
prefer to retain them by paying the value
they may have at the time he enters into Art. 557. The possession of immovables
possession. (445a) and of real rights is not deemed lost, or
transferred for purposes of prescription to
Art. 551. Improvements caused by nature the prejudice of third persons, except in
or time shall always insure to the benefit accordance with the provisions of the
of the person who has succeeded in Mortgage Law and the Land Registration
recovering possession. laws.

Art. 552. A possessor in good faith shall not Example: "A" purchased an untitled
be liable for the deterioration or loss of the property which sale he registered with the
thing possessed, except in cases in which it Registry of Property. He did not occupy the
is proved that he has acted with fraudulent property. Not being titled, the property may
intent or negligence, after the judicial be acquired by prescription by an actual
summons. possessor when all elements of prescription
have been complied with.
A possessor in bad faith shall be liable for
deterioration or loss in every case, even if Insofar as the occupant is concerned, the
caused by a fortuitous event. possession and ownership of "A" is already
lost. However, insofar as strangers are

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concerned and who rely on the records, "A" GENERAL RULE: The true owner cannot
is still the owner of the property. recover the property if the holder is in good
faith
Art. 558. Acts relating to possession, XPN: PRINCIPLE OF IRREVINDICABILITY -
executed or agreed to by one who when the owner has lost it or has been
possesses a thing belonging to another as a unlawfully deprived of it
mere holder to enjoy or keep it, in any *Criminal implication: Violation of Ati-
character, do not bind or prejudice the Fencing
owner, unless he gave said holder express
authority to do such acts, or ratifies them What is the right of a possessor who
subsequently. acquires movable claimed by another?
BF: no right
*When a mere possessor transfers GF: presumed to be owner, equivalent to
ownership of the property to another, title
owner is NOT bound.
*Mere possession in good faith is NOT
Art. 559. The possession of movable absolute title
property acquired in good faith is
equivalent to a title. Nevertheless, one *Where movable is acquired in good faith in
who has lost any movable or has been a PUBLIC SALE, owner must REIMBURSE
unlawfully deprived thereof may recover it
from the person in possession of the same. What is a public sale?
If the possessor of a movable lost or which One where there has been a public notice
the owner has been unlawfully deprived, of sale where anyone can bid.
has acquired it in good faith at a public
sale, the owner cannot obtain its return *A possessor who unlawfully deprives a
without reimbursing the price paid property of another, will eventually own is
therefor. as long as NO ONE OBJECTS.
Title - juridical act that transfers or confers
ownership *A gun with expired license is a mere
grammatical possession only because right
REQUISITES: to possession was already lost when the
1. the owner has voluntarily parted with the license expired
possession of his property
2. subsequent possessor is possessing it in
the concept of an owner Art. 560. Wild animals are possessed only
3. good faith while they are under one's control;
domesticated or tamed animals are
Title - juridical act that transfers or confers considered domestic or tame if they retain
ownership the habit of returning to the premises of
the possessor.

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Wild Animals - live and thrive naturally in


their habitat without the intervention of
man
Examples: crocodiles, snakes, wild boars

Domestic or tame animals - ordinarily


reared, raised or born
Examples: cats, dogs,

Domesticated or tamed animals - wild by


nature but controlled by man
Examples: dolphins, parrots, horses,
carabaos

*Possession of wild animals is good only if


they remain under the control 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.
*the article applies to real property only
*Do not apply if prejudicial
REQUISITES:
1. possession was lost unlawfully or
unjustly
2. possessor was able to recover his
possession by lawful means
3. uninterrupted possession must be
beneficial to him

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Title VI. - USUFRUCT 2. Ownership is vested to another


3. Real right
CHAPTER 1 4. Temporary duration
USUFRUCT IN GENERAL 5. Transmissible

Art. 562. Usufruct gives a right to enjoy the WHAT IS THE PURPOSE OF USUFRUCT?
property of another with the obligation of Enjoyment by the usufructuary of the
preserving its form and substance, unless benefits and advantages derivable from the
the title constituting it or the law object in usufruct, as a consequence of
otherwise provides. normal use and exploitation.

WHAT IS USUFRUCT?
It is the right to enjoy the property if WHY IS THERE A NEED TO PRESERVE?
another temporarily, including both the a. To prevent extraordinary exploitation
right to use and right to the fruits with the b. To prevent abuse of the property this is
obligation of returning it at a designated frequent
time and preserving its form and substance, c. To prevent impairment
unless otherwise provided.
WHAT IS THE STATUS OF A USUFRUCT IN
RIGHT TO: FAVOR OF A FOREIGNER?
1. Use It is valid because the title is not vested in
2. Fruits the usufructuary

PARTIES: *A usufruct over an immovable, which is a


1. Naked owner – owner of the registrable real right, must be duly
property who is stripped of the right annotated at the back of the title to bind
to the fruits and to use the property third persons. Otherwise, innocent
2. Usufuctuary – beneficiary of the purchasers in good faith may acquire the
usufruct usufruct to the prejudice of the
usufructuary
OBJECTS OF USUFRUCT:
1. Real property
2. Personal property like a car *Ordinarily, usufructuary should be
3. Flock or herd of livestock preserved but contrary, no need to
4. Transmissible right which have capability preserve if for example, consumable
of independent existence. A servitude
which has no independent existence cannot WHY IS THERE A NEED TO PRESERVE?
be an object of usufruct. 1. To prevent extraordinary
5. Unproductive thing like sterile animals exploitation
2. To prevent abuse of the property
WHAT ARE THE CHARACTERISTICS OF 3. To prevent impairment
USUFRUCT?
1. Constituted on a property

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*Usufruct over parcel of land in favour of a 1. Legal usufruct - one created by law such
foreigner, VALID – title vested in the as the usufruct of parents over the
usufructuary properties of their children under Article 32
of the New Civil Code which is now
USUFRUCTUARY V LEASE ABOLISHED by Article 226 of the Family
CREATION: Usufruct - only the owner or his Code.
authorized representative 2. Conventional usufruct - those created by
Lease – not necessarily the owner; lessee the will of the parties
may sublease if allowed a. those expressed in acts inter vivos, such
NATURE: Usufruct is always a real right as by the contract which are effective
Lease may be a real right or personal right. during the lifetime of the owner of the
It is a real right if the lease over the land is property
registered or the lease is more than 1 year. b. those expressed in a last will which are
MANNER OF CREATION: Usufruct is created effective after the death of the testator
by law, agreement in acts inter vivos, last (mortis causa)
will, prescription. Lease is created by 3. Mixed usufruct - one PARTLY created by
contract except by law which is forced law and partly created by will of the parties
lease. 4. Prescriptive usufruct - acquired by third
EXECUTION OF REPAIRS: Usufructuary has person through continuous use of the
the duty. Lessee does not have a duty but usufruct for the period required by law
may execute if urgent.
Art. 564. Usufruct may be constituted on
MAY USUFRUCTUARY BE CONSTITUTED ON the whole or a part of the fruits of the
PERSONAL RIGHTS? thing, in favor of one more persons,
Yes, as long as it is not strictly personal or simultaneously or successively, and in
intransmissible. Right to support is NOT every case from or to a certain day, purely
included. or conditionally. It may also be constituted
on a right, provided it is not strictly
Art. 563. Usufruct is constituted by law, by personal or intransmissible.
the will of private persons expressed in
acts inter vivos or in a last will and What are the kinds of usufruct?
testament, and by prescription. 1. As to the extent of object:
a. total
CREATION OF USUFRUCT: b. partial
1. by law 2. As to the number of beneficiaries:
2. by agreement expressed in acts a. simple - one usufructuary
inter vivos b. multiple - several usufructuaries which
3. in a last will may be:
4. by prescription b1. simultaneous - at the same time
b2. successive - one after the other
CLASSES OF USUFRUCT AS TO THEIR 3. As to effectivity or extinguishment:
CREATION: a. pure - no condition

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b. with a term - there is a period either provisions contained in the two following
resolutory or suspensive Chapters shall be observed.
b1. ex die - for a specific day
b2. in diem - up to a specific day *Title primarily determines the rights and
b3. ex diem in diem - from a specific day up obligations of the usufructuary
to a specific day
c. conditional - there is a condition either In case of conflict between provisions of
resolutory or suspensive the Civil code and those provided in the
4. As to subject matter: will, which shall prevail?
a. over things - involves tangible property The one provided in the will. Why? Intent of
b. over rights - involves intangible property the parties.
5. As to its extent:
a. universal - constituted over the entire
patrimony of the owner CHAPTER 2
b. particular - constituted only on individual RIGHTS OF THE USUFRUCTUARY
things Art. 566. The usufructuary shall be entitled
6. As to the preservation of the substance to all the natural, industrial and civil fruits
and form of the object of the property in usufruct. With respect to
a. normal usufruct - involves non- hidden treasure which may be found on
consumable things which have to be the land or tenement, he shall be
returned and hence, the need for considered a stranger.
preservation of its substance and form
b. abnormal usufruct - involves WHAT ARE THE RIGHTS OF A
consummable things like wine and cigars. USUFRUCTUARY TO THE THINGS AND ITS
They cannot be enjoyed without being FRUITS?(RISER)
consumed.
a. to receive the fruits of the property in
Can the right to receive support be a usufruct and half of the hidden treasure he
subject matter of usufruct? accidentally find on the property
No, because the rights must not be strictly b. to enjoy an increase which the thing in
personal or intransmissible to be the usufrcut may acquire through accession
subject of usufruct c. to personally enjoy the thing or lease it to
another
*There is no limitation on the number of d. to make on the property such
usufructuaries as long as all of them are improvements, expenses he may deem
alive at the time of the constitution of the proper and to remove the improvements
usufruct. provided there is no damage caused to the
property
Art. 565. The rights and obligations of the e. to set-off the improvements he may have
usufructuary shall be those provided in the made on the property against any damage
title constituting the usufruct; in default of to the same
such title, or in case it is deficient, the

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f. to retain the thing until he is reimburse acquired either at the beginning or at the
from the advances for extraordinary termination of the usufruct.
expenses and taxes of the capital
What are the rights of the usufructuary as
*Usufructuary right not exempted from to the advances and damages?
execution a. to be reimbursed for indispensable
*If a hidden treasure is found on the land, extraordinary repairs made by him in an
the usufrcuary is a stranger to it. The reason amount equal to increase in value
for is that hidden treasure is not a fruit to b. to be reimbursed for taxes on the capital
which the usufructuary is automatically advanced by him
entitled. c. to be indemnified for damages caused by
him by the naked owner
What are the rights of the usufructuary as
to the usufruct itself? What are the rights of a usufructuary to
a. to alienated or mortgage the right of pending natural and industrial fruits?
usufruct 1. Fruits growing at the beginning of
b. in a usufrcut to recover property or real usufruct belong to the USUFRUCTUARY who
right, to bring the action and to oblige the is not bound to refund to the owner the
owner thereof to give him the proper expenses of cultivation and production
authority and the necessary proof 2. Fruits growing up to the termination of
c. in a usufruct of part of a common usufruct belong to the OWNER but he is
property, to exercise all the rights bound to reimburse to the usufructuary of
pertaining to the co-owner with respect to the ordinary cultivation expenses
to the administration and collection of fruits What are ordinary expenses that are
or interests needed to be reimbursed by the owner?
expenses on cultivation, seeds and other
Art. 567. Natural or industrial fruits similar expenses
growing at the time the usufruct begins,
belong to the usufructuary. *The right of innocent third persons shall
Those growing at the time the usufruct NOT be prejudiced. If a third person has a
terminates, belong to the owner. right over the fruits, it must be respected.
In the preceding cases, the usufructuary, at
the beginning of the usufruct, has no What if the expenses exceeds the proceeds
obligation to refund to the owner any of the growing fruits?
expenses incurred; but the owner shall be The owner has no obligation to reimburse
obliged to reimburse at the termination of the difference
the usufruct, from the proceeds of the
growing fruits, the ordinary expenses of Art. 568. If the usufructuary has leased the
cultivation, for seed, and other similar lands or tenements given in usufruct, and
expenses incurred by the usufructuary. the usufruct should expire before the
The provisions of this article shall not termination of the lease, he or his heirs
prejudice the rights of third persons, and successors shall receive only the
proportionate share of the rent that must
be paid by the lessee.

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pension each payment shall be considered


Art. 569. Civil fruits are deemed to accrue as the proceeds or the fruits of such right.
daily, and belong to the usufructuary in This is applicable to money, fruits, interest
proportion to the time the usufruct may on bonds and securities
last.
Art. 571. The usufructuary shall have the
*Usufructuary may LEASE the property. He right to enjoy any increase which the thing
also has the right to choose the tenant and in usufruct may acquire through accession,
the right to eject the tenant, if it violates the servitudes established in its favor, and,
the lease contract in general, all the benefits inherent
GENERAL RULE: If the period of lease is therein.
longer than the period of usufruct, lease GENERAL RULE: The usufructuary shall
will terminate upon termination of usufruct enjoy all the benefits inherent in a property
EXCEPTION: the naked owner respected the given in usufruct
lease EXCEPTION: Contrary agreement

*With respect to rents, the usufructuary Art. 572. The usufructuary may personally
will receive only in the amount equivalent enjoy the thing in usufruct, lease it to
to the period of usufruct, beyond that, to another, or alienate his right of usufruct,
the naked owner even by a gratuitous title; but all the
contracts he may enter into as such
usufructuary shall terminate upon the
Art. 570. Whenever a usufruct is expiration of the usufruct, saving leases of
constituted on the right to receive a rent or rural lands, which shall be considered as
periodical pension, whether in money or in subsisting during the agricultural year.
fruits, or in the interest on bonds or
securities payable to bearer, each payment LIMITATIONS OF USUFRUCTUARY RIGHTS:
due shall be considered as the proceeds or 1. he cannot sell, pledge or mortgage the
fruits of such right. thing or property itself, because he is not
Whenever it consists in the enjoyment of the owner thereof
benefits accruing from a participation in 2. he cannot sell FUTURE CROPS, for
any industrial or commercial enterprise, growing crops at the termination of the
the date of the distribution of which is not usufruct belong to the owner
fixed, such benefits shall have the same 3. he cannot lease the thing longer than the
character. term of usufruct UNLESS consented by the
In either case they shall be distributed as naked owner
civil fruits, and shall be applied in the
manner prescribed in the preceding article. Art. 573. Whenever the usufruct includes
things which, without being consumed,
gradually deteriorate through wear and
Usufruct on right to receive rent or tear, the usufructuary shall have the right
periodical pension: to make use thereof in accordance with
When a usufruct is constituted on the the purpose for which they are intended,
owner's right to receive rent or periodical

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and shall not be obliged to return them at *Quasi-usufruct is akin to mutuum or


the termination of the usufruct except in simple loan
their condition at that time; but he shall be
obliged to indemnify the owner for any What if the damages exceed the value of
deterioration they may have suffered by improvements?
reason of his fraud or negligence. The usufrctuary is liable for the difference
GENERAL RULE: If the period of lease is for indemnity
longer than the period of usufruct, lease
will terminate upon termination of usufruct Art. 575. The usufructuary of fruit-bearing
EXCEPTION: the naked owner respected the trees and shrubs may make use of the
lease dead trunks, and even of those cut off or
uprooted by accident, under the obligation
*If usufruct includes NON-CONSUMMABLE to replace them with new plants.
but deteriorates due to ordinary wear and
tear, use it for the purpose to which it is *Usufructuary is not allowed to cut off trees
intended and return at the end of the because of his obligation to preserve them.
usufruct (in its condition at the time) However, if the purpose of the usufruct as
*If detoriation is due to fraud or negligence, appearing in the title establishing the
usufructuary is liable usufruct, is precisely to make use of the
branches and trunks of the trees for special
Art. 574. Whenever the usufruct includes purposes like their conversion into selected
things which cannot be used without being lumber for use in the making of quality
consumed, the usufructuary shall have the furniture then he may cut them off subject
right to make use of them under the to the obligation of replacing thme with
obligation of paying their appraised value young trees or new plants.
at the termination of the usufruct, if they
were appraised when delivered. In case Shrubs - woody perrenial plants smaller
they were not appraised, he shall have the than trees usually having permanent stems
right to return at the same quantity and branching from or near the ground
quality, or pay their current price at the
time the usufruct ceases. Art. 576. If in consequence of a calamity or
extraordinary event, the trees or shrubs
What are the rights and obligations of the shall have disappeared in such
usufructuary with respect to consummable considerable number that it would not be
things? possible or it would be too burdensome to
The usufructuary shall have the right to replace them, the usufructuary may leave
make use of the consummable thing. At the the dead, fallen or uprooted trunks at the
termination of the usufruct, he must: disposal of the owner, and demand that
1. pay its appraised value the latter remove them and clear the land.
2. if no appraisal:
a. return the same quantity and quality *If the act of replacement is ONLY slightly
b. pay its current price at such termination burdensome the usufructuary is OBLIGED to
make replacement

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Art. 577. The usufructuary of woodland He regains only his usufruct over the
may enjoy all the benefits which it may property.
produce according to its nature. *Another impractical provision
If the woodland is a copse or consists of
timber for building, the usufructuary may Art. 579. The usufructuary may make on
do such ordinary cutting or felling as the the property held in usufruct such useful
owner was in the habit of doing, and in improvements or expenses for mere
default of this, he may do so in accordance pleasure as he may deem proper, provided
with the custom of the place, as to the he does not alter its form or substance; but
manner, amount and season. he shall have no right to be indemnified
In any case the felling or cutting of trees therefor. He may, however, remove such
shall be made in such manner as not to improvements, should it be possible to do
prejudice the preservation of the land. so without damage to the property.
In nurseries, the usufructuary may make
the necessary thinnings in order that the *The usufructuary, if he so desires, may
remaining trees may properly grow. introduce useful or luxurious improvements
With the exception of the provisions of the as he may deem proper on the property in
preceding paragraphs, the usufructuary usufruct. However, he is PROHIBITED from
cannot cut down trees unless it be to altering the form and substance of the
restore or improve some of the things in property. Thus, a usufrctuary cannot
usufruct, and in such case shall first inform convert a fishpond into a swimming pool.
the owner of the necessity for the work. The form and substance will be altered.

Is the usufructuary entitled to indemnity for


*This provision is inoperative since it is the expenses he had incurred in the making
impractical in the Philippines. of their improvements?
GENERAL RULE: No.
Art. 578. The usufructuary of an action to EXCEPTION:| He may remove the
recover real property or a real right, or any improvements, even against the will of the
movable property, has the right to bring owner, if no damage would be caused to
the action and to oblige the owner thereof the property in usufruct.
to give him the authority for this purpose
and to furnish him whatever proof he may Can a usufruct be compelled to remove the
have. If in consequence of the improvements?
enforcement of the action he acquires the No. It is discretionary on the part of the
thing claimed, the usufruct shall be limited usufructuary.
to the fruits, the dominion remaining with
the owner. In case it cannot be removed with damage,
What is the effectof favorable judgment? is the usufructuary entitled to refund?
If the usufructuary recovered the property, No. He may set-off the value of the
he does not become the owner thereof. The improvements against the amount of the
naked ownership still belongs to the owner. damage he had caused the property.

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Art. 580. The usufructuary may set off the usufruct of the part allotted to the co-
improvements he may have made on the owner shall belong to the usufructuary.
property against any damage to the same. Usufructuary assumes rights of co-owner
*Set-off has the effect of compensation with respect to:
a. administration of the property
How is set-off done? b. collection of fruits and interests
The usufructuary must inform the owner of
the desire for set-off and prove that the *No authority to sell or alienate any real
improvements are of greater value than the right over the undivided property,for such
damage. exercise is an act of ownership unless
authorized by the co-owner concerned. The
What if the the value of the improvements ownership of the portion involved is not
is greater than the damage (cannot be transferred to the usufructuary.
removed without injury)?
The excess will not be refunded to the *Upon partition of the property, usufruct
usufructuary in the absence of contrary continues on the part of the property which
stipulation for that, in effect, will be was alloted to the co-owner who
entitling the usufructuary with refund in constituted the usufruct.
cash which is not authorized.
CHAPTER 3
What is the rule if it could be removed OBLIGATIONS OF THE USUFRUCTUARY
without damage?
By agreement, settle the difference Art. 583. The usufructuary, before entering
upon the enjoyment of the property, is
Art. 581. The owner of property the obliged:
usufruct of which is held by another, may (1) To make, after notice to the
alienate it, but he cannot alter its form or owner or his legitimate
substance, or do anything thereon which representative, an inventory of all
may be prejudicial to the usufructuary. the property, which shall contain an
appraisal of the movables and a
*Naked owner is NOT precluded from description of the condition of the
alienating the usufruct of the property immovables;
RESTRICTIONS: he cannot alter or change (2) To give security, binding himself
the form or substance of the property or do to fulfill the obligations imposed
anything which will prejudice of the upon him in accordance with this
usufructuary. Chapter.
Art. 582. The usufructuary of a part of a
thing held in common shall exercise all the What are the usufructuary's obligations?
rights pertaining to the owner thereof with 1. Make an inventory of all the property
respect to the administration and the containing the appraised value, descriptions
collection of fruits or interest. Should the of their condition
co-ownership cease by reason of the 2. Give security as an assurance that he will
division of the thing held in common, the fulfill his obligations as usufructuary

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*The conditions are not necessary for the amount as court may determine,but not
commencement of the right of the less than 10% of the value of the property
usufrcutuary. However, it shall be done or income to guarantee preforamnce of the
before the usufrctuary enters upon the duties prescribed for general guardians
possession and enjoyment of a property
Art. 585. The usufructuary, whatever may
To whom shall expenses for the be the title of the usufruct, may be
preparation of inventory be borne? excused from the obligation of making an
Usufructuary, he is the one obliged to make inventory or of giving security, when no
an accounting. one will be injured thereby.

What may be the forms of a security? Obligation to make an inventory and to give
It may be a pledge, mortgage of a property, security is excused when no one will be
personal or surety bond, cash money. adversely affected.
Example: Usufruct over a periodical pension
What is the purpose of giving security?
To insure faithful compliance
Art. 586. Should the usufructuary fail to
What are the situations where giving of give security in the cases in which he is
security is not required? bound to give it, the owner may demand
1. Express stipulation that the immovables be placed under
2. Waiver by naked owner administration, that the movables be sold,
3. Nobody will be injured by lack of security that the public bonds, instruments of
4. Donor has reserved this obligation to credit payable to order or to bearer be
himself. It is an act of ingratitude for the converted into registered certificates or
donee to require the donor to put up a deposited in a bank or public institution,
security bond. and that the capital or sums in cash and
the proceeds of the sale of the movable
Art. 584. The provisions of No. 2 of the property be invested in safe securities.
preceding article shall not apply to the The interest on the proceeds of the sale of
donor who has reserved the usufruct of the movables and that on public securities
the property donated, or to the parents and bonds, and the proceeds of the
who are usufructuaries of their children's property placed under administration,
property, except when the parents shall belong to the usufructuary.
contract a second marriage. Furthermore, the owner may, if he so
prefers, until the usufructuary gives
Aticle 226 of the Family Code, the parents security or is excused from so doing, retain
will exercise joint legal guardianship over in his possession the property in usufruct
the property of their minor childrent as administrator, subject to the obligation
WITHOUT need of court appointment. And to deliver to the usufructuary the net
they are required to put a bond if the value proceeds thereof, after deducting the sums
of the propery or annual income exceeds which may be agreed upon or judicially
P50,000.00. The bond may be in such allowed him for such administration.

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value, he may demand their delivery to


CONSEQUENCES OF FAILURE TO GIVE him upon his giving security for the
SECURITY WHEN REQUIRED: payment of the legal interest on their
NAKED OWNER MAY: appraised value.
1. demand that immovables be placed
under his administration
2. demand that movables be sold; public What is a promise under oath or causion
bonds, instruments be converted into juratoria?
registered certificates or deposited in the It is a sworn undertaking by the
bank or public institution, and that capital usufructuary to TAKE GOOD CARE of the
or sums in cash and the proceeds of the property iun usufruct and to return it at the
movable propery be invested in securities. termination of the usfruct. It is based on
3. retain the property if he so desires necessity and resorted to when the
usufructuary is poor and cannot afford to
USUFRUCTUARY MAY: give the required security.
3. The usufructuary is entitled to interests
on the proceeds of the sale of movables When is judicial intervention required?
and on proceeds of the property placed When the usufructuary has not been
under the management of the naked owner excused by the naked owner. He has to file
4. Usufructuary cannot enter into a petition to court seeking the delivery of
possession of the property the property including the accessories if
5. Usufructuary cannot collect credits that any, which are necessary for its normal
had matured enjoyment, or even tolls and implements
7. Usufruct is NOT extinguished by failure to needed by the usufructuary in his industry
give securitry or work.

What if the property has artistic or


Art. 587. If the usufructuary who has not sentimental value?
given security claims, by virtue of a The owner has the discretion to sell it or
promise under oath, the delivery of the not. If not, he may demand their delivery to
furniture necessary for his use, and that he him, sunject to his giving a security or bond
and his family be allowed to live in a house for payment of the legal interest based on
included in the usufruct, the court may their appraised value.
grant this petition, after due consideration
of the facts of the case. Art. 588. After the security has been given
The same rule shall be observed with by the usufructuary, he shall have a right
respect to implements, tools and other to all the proceeds and benefits from the
movable property necessary for an day on which, in accordance with the title
industry or vocation in which he is constituting the usufruct, he should have
engaged. commenced to receive them.
If the owner does not wish that certain
articles be sold because of their artistic
worth or because they have a sentimental

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What is the effect of giving the security? Should the herd or flock perish in part, also
The usufructuary shall have a right to all by accident and without the fault of the
proceeds and benefits as of the date he is usufructuary, the usufruct shall continue
was supposed to have received them. It on the part saved.
retroacts to the day when the usufructuary Should the usufruct be on sterile animals,
should have commenced receiving them. it shall be considered, with respect to its
effects, as though constituted on fungible
things.
Art. 589. The usufructuary shall take care *Judge Quiambao made a reminder to
of the things given in usufruct as a good study it for the sake of multiple choice
father of a family.
Herd – number of animals kept, feeding, ot
Art. 590. A usufructuary who alienates or travelling together
leases his right of usufruct shall answer for Livestock – mammalian animals
any damage which the things in usufruct Poultry – avian animals which are
may suffer through the fault or negligence domesticated and kept or raised in
of the person who substitutes him. backyards or farms

How is diligence of a good father of a *The usufruct on a flock or herd


family exercised? presupposes the presence of a big number
of animals
1. By making ordinary repairs for
preservation *There shall only be an obligation to replace
2. By notifying the owner of the dead animals if only SOME of it died.
urgency of extraordinary repairs
3. By being cautious in the person to USUFRUCTUARY’S OBLIGATION TO
whom he would lease, alienate or REPLACEMENT IF CAUSES ARE:
sub-usufruct his usufructuary rights
1. Natural
Art. 591. If the usufruct be constituted on a 2. Due to rapacity of beasts of prey
flock or herd of livestock, the usufructuary
shall be obliged to replace with the young The replacement shall consist the young of
thereof the animals that die each year these animals. In case there are more
from natural causes, or are lost due to the young animals than those to be replaced,
rapacity of beasts of prey. the excess will pertain to the usufructuary.
If the animals on which the usufruct is
constituted should all perish, without the *No obligation if all animals died due to
fault of the usufructuary, on account of cases such as:
some contagious disease or any other 1. Contagious disease
uncommon event, the usufructuary shall 2. Uncommon event without the fault of
fulfill his obligation by delivering to the the usufructuary
owner the remains which may have been The latter must deliver the remains
saved from the misfortune. (carcasses) which had been saved, to the
naked owner.

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What is meant by extraordinary repairs?


*If by reason of accident and without the These are repairs needed to restore to its
fault of the usufructuary, some animals good condition a thing or property which
died, the usufruct shall continue on the has deteriorated by reason of exceptional
surviving animals circumstances.

USUFRUCT OVER STERILE ANIMALS = How about extraordinary repairs?


USUFRUCT OVER FUNGIBLE THINGS It shall be done at the expense of the owner
after the usufructuary notifies the owner of
Art. 592. The usufructuary is obliged to the needed repairs when it is urgent. NOTE:
make the ordinary repairs needed by the No need of notification if not urgent.
thing given in usufruct.
By ordinary repairs are understood such as Art. 594. If the owner should make the
are required by the wear and tear due to extraordinary repairs, he shall have a right
the natural use of the thing and are to demand of the usufructuary the legal
indispensable for its preservation. Should interest on the amount expended for the
the usufructuary fail to make them after time that the usufruct lasts.
demand by the owner, the latter may
make them at the expense of the Should he not make them when they are
usufructuary. indispensable for the preservation of the
Art. 593. Extraordinary repairs shall be at thing, the usufructuary may make them;
the expense of the owner. The but he shall have a right to demand of the
usufructuary is obliged to notify the owner owner, at the termination of the usufruct,
when the need for such repairs is urgent. the increase in value which the immovable
may have acquired by reason of the
What is the meaning of ordinary repairs? repairs.
These are repairs needed due to the wear
and tear suffered by the property through What is the right of the naked owner when
the natural use thereof and are he makes extraordinary repairs?
indispensable for its preservation. The naked owner can charge the
usufructuary for legal interest on the
What if usufructuary denies to make amount spent, until the usufruct expires.
repairs? Legal interest would be 6% per annum.
The naked owner can make the repairs
subject to reimbursement from the What is the right if the usufructuary paid
usufructuary. for the extraordinary expenses?
He may demand from the owner the
resulting increase in the value of the
Up to what extent is the liability of the property by reason of the repairs done.
usufructuary? It may be determined by a comparison of
Only the ordinary repairs needed DURING the past and present value.
the existence of the usufruct.
Art. 595. The owner may construct any
works and make any improvements of

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which the immovable in usufruct is interest on the taxes paid by the owner,
susceptible, or make new plantings UNLESS there is a contrary stipulation.,
thereon if it be rural, provided that such What if the usufructuary advanced the
acts do not cause a diminution in the value payment, when is he entitled to
of the usufruct or prejudice the right of the reimbursement?
usufructuary. General Rule: Reimbursement without
*applies only to immovable properties interest at the time of the termination of
the usufruct.
What are the restrictions as to the right of Exception: if payment was done by the
theo owner in making constructions or immediate deduction of the amount of the
new plantings? tax against the share of the usufructuary on
The value of the property shall not diminish the fruits, reimbursement shall be made
and the rights of the usufructuary shall not IMMEDIATELY.
be prejudiced.

Art. 596. The payment of annual charges Art. 598. If the usufruct be constituted on
and taxes and of those considered as a lien the whole of a patrimony, and if at the
on the fruits, shall be at the expense of the time of its constitution the owner has
usufructuary for all the time that the debts, the provisions of Articles 758 and
usufruct lasts. 759 relating to donations shall be applied,
both with respect to the maintenance of
*The usufructuary shall be liable for the the usufruct and to the obligation of the
annual charges and taxes on the fruits usufructuary to pay such debts.
during the duration o f the usufruct.
*Real property tax shall be paid by the The same rule shall be applied in case the
owner. owner is obliged, at the time the usufruct
is constituted, to make periodical
payments, even if there should be no
Art. 597. The taxes which, during the known capital.
usufruct, may be imposed directly on the What are the rules when the usufruct
capital, shall be at the expense of the comprehends the whole of a patrimony of
owner. thw naked owner and the latter has
indebtedness?
If the latter has paid them, the 1. If there is an agreement that the
usufructuary shall pay him the proper usufructuary will pay, he is bound by
interest on the sums which may have been the prestation. However, if there is
paid in that character; and, if the said sums no amount fixed, it cannot exceed
have been advanced by the usufructuary, the value of the usufruct.
he shall recover the amount thereof at the 2. If there is no agreement to pay for
termination of the usufruct. the obligation, the usufructuary shall
*Since the property and its fruits are being only be liable to pay for it if the
enjoyed by the usufrcutuary, the law directs usufruct was done in fraud of
him to contribute in the form of legal creditors.

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What is meant by “in fraud of creditors?” Art. 600. The usufructuary of a mortgaged
This is the presumption when during the immovable shall not be obliged to pay the
time of the execution of the usufruct, the debt for the security of which the
owner did not reserve sufficient property mortgage was constituted.
with which to pay his debts.
*The usufructuary may be liable for Should the immovable be attached or sold
damages when proven to be acting in bad judicially for the payment of the debt, the
faith. owner shall be liable to the usufructuary
for whatever the latter may lose by reason
thereof.
Art. 599. The usufructuary may claim any
matured credits which form a part of the Is the usufructuary obliged to pay the
usufruct if he has given or gives the proper mortgage obligations of the naked owner?
security. If he has been excused from No. In fact, if it be levied or attached in a
giving security or has been able to give it, public auction, the naked owner shall pay
or if that given is not sufficient, he shall damages to the usufructuary.
need the authorization of the owner, or of
the court in default thereof, to collect such How may a naked owner be excused from
credits. liability?
If he can able to give a substitute usufruct
The usufructuary who has given security over another equivalent property or if he is
may use the capital he has collected in any able to pay an amount in settlement of the
manner he may deem proper. The loss suffered by the usufructuary or by
usufructuary who has not given security another satisfactory means of settlement.
shall invest the said capital at interest
upon agreement with the owner; in Can a usufruct be mortgaged?
default of such agreement, with judicial Yes. The responsibility is upon the
authorization; and, in every case, with usufructuary who mortgaged it.
security sufficient to preserve the integrity
of the capital in usufruct. Art. 601. The usufructuary shall be obliged
to notify the owner of any act of a third
When is a usufructuary allowed to collect person, of which he may have knowledge,
demandable credits like rental dues? that may be prejudicial to the rights of
If he gave proper security or bond. If not, he ownership, and he shall be liable should he
needs either authorization from the owner not do so, for damages, as if they had been
or in default thereof, a judicial authorization caused through his own fault.
*The usufructuary has a DUTY to notify the
*The credit collected pertains to the owner naked owner if there is any prejudicial act
but subject to the use of the usufructuary done by third person adversely affecting the
*The security required must be in all cases ownership of the naked owner.
sufficient to preserve the integrity of the Failure to do so would be tantamount to
capital in usufruct the usufructuary himself having the done

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the damages, in case any have been *It is the death of the usufructuary NOT the
incurred. owner since his heirs shall respect the
usufruct despite death of owner.
Art. 602. The expenses, costs and liabilities
in suits brought with regard to the usufruct 2. Expiration of the period – only
shall be borne by the usufructuary. applicable to resolutory conditions
3. Merger – naked owner and usufruct
*It is the usufructuary’s responsibility to concur in the same person
pay expenses, costs and liabilities in suits 4. Renunciation – if usufructuary
because he is the one affected by it. waives or renounces his right, may
be done implicitly or explithcitly.
CHAPTER 4 This does not need the consent of
EXTINGUISHMENT OF USUFRUCT the owner and no formalities are
needed
Art. 603. Usufruct is extinguished: How may a waiver be valid?
(1) By the death of the Requisites:
usufructuary, unless a contrary a. Waiving party must have the right
intention clearly appears; he is waiving
(2) By the expiration of the period b. He must have full capacity to make
for which it was constituted, or by the waiver
the fulfillment of any resolutory c. Must be clear and unequivocal
condition provided in the title d. Must NOT be contrary to law, public
creating the usufruct; order, public policy, morals or good
(3) By merger of the usufruct and customs or prejudicial to a third
ownership in the same person; person with a right recognized by
(4) By renunciation of the law
usufructuary;
(5) By the total loss of the thing in 5. Total loss of the thing
usufruct; Loss – includes the physical destruction
(6) By the termination of the right of the thing; its rendition outside the
of the person constituting the commerce of man; total abandonment;
usufruct; recovery is impossible; expropriation by
authorities
(7) By prescription. *If the usufructuary assumed the
liability for the loss, he shall pay
CAUSES FOR EXTINGUISHMENT OF damages.
USUFRUCT:
1. General Rule: death of the 6. Termination of right of the person
usufructuary constituting the usufruct – one
Exception: clear agreement to reason may be that the naked
continue despite death owner is not the real owner which
Usufruct in favour of several follows that the real owner evicted
persons, it shall be extinguished only
upon the death of the last survivor

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the owner terminating the usufruct extended indefinitely. A need for imposing
as well a limitation should therefore be proper.
*The usufructuary cannot have a better *article is inapplicable to testamentary trust
right or right higher than that of the
source Art. 606. A usufruct granted for the time
that may elapse before a third person
7. Prescription – if a third person attains a certain age, shall subsist for the
acquired the usufruct by continuous number of years specified, even if the third
use, the usufruct ceases. If what the person should die before the period
person has acquired is the expires, unless such usufruct has been
ownership, it is also terminated. expressly granted only in consideration of
*Mere non-use does not terminate the the existence of such person.
usufruct, unless it is tantamount to
renunciation Example:
“A”, the owner of a building with income,
OTHER CAUSES OF TERMINATION: constituted a usufruct in favour of “B”, until
1. Annulment of title “C”, the granddaughter of “A”, who is 10
2. Expropriation years old shall have become of legal age.
3. Mutual withdrawal by parties The usufruct will be for a period of 8 years.
4. Legal causes If “C” would die before becoming 18, the
5. Abandonment of juridical entity usufruct will continue until the complete
period of 8 years shall have elapsed.
Art. 604. If the thing given in usufruct EXCEPTION: If the usufruct had been
should be lost only in part, the right shall constituted only in CONSIDERATION of the
continue on the remaining part. survival or existence of the third person the
*The partial loss of the thing does not affect usufruct terminates upon the death of the
the rights of the usufructuary said person. Thus, if the usufruct was
created in favour of “B” only for “B” to
Art. 605. Usufruct cannot be constituted in support “C”, upon the death of the latter,
favor of a town, corporation, or the usufruct is extinguished.
association for more than fifty years. If it
has been constituted, and before the
expiration of such period the town is Art. 607. If the usufruct is constituted on
abandoned, or the corporation or immovable property of which a building
association is dissolved, the usufruct shall forms part, and the latter should be
be extinguished by reason thereof. destroyed in any manner whatsoever, the
usufructuary shall have a right to make use
What is the reason for not allowing of the land and the materials.
usufructuary beyond 50 years?
Since a usufruct is meant only a lifetime The same rule shall be applied if the
grant. Unlike a natural person, a usufruct is constituted on a building only
corporation or association’s lifetime may be and the same should be destroyed. But in
such a case, if the owner should wish to
construct another building, he shall have a

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right to occupy the land and to make use What if the owner does not construct a
of the materials, being obliged to pay to new building and period of usufruct have
the usufructuary, during the continuance not yet expired?
of the usufruct, the interest upon the sum Interest on sum of value of building remains
equivalent to the value of the land and of of ruin and the land will be given a right to
the materials. usufruct

USUFRUCT IS CONSTITUTED ON Destruction by naked owner: he is liable


IMMOVABLE PROPERTY OF WHICH A Fault of usufructuary: amount of building +
BUILDING FORMS PART AND LATTER BE damages, it may including moral and
DESTROYED: exemplary
1. Usufruct is both over land and
building *In case money is awarded, like a war
- Usufruct on land continues damage payment, and it is not used for the
because land is not loss, but on establishment of a new building, the
building loss (assumption of total usufructuary is entitled to 6% legal interest
loss) of the payment from the time payment was
- Usufructuary can use the land received until the death of the said
and materials saved from the usufructuary
building
- If owner wants to rebuild the
building, but usufructuary Art. 608. If the usufructuary shares with
refuses, the latter prevails the owner the insurance of the tenement
because he has the usufruct over given in usufruct, the former shall, in case
the land until the period expires of loss, continue in the enjoyment of the
2. Usufruct is building only new building, should one be constructed,
- Usufruct on building or shall receive the interest on the
extinguished (totally destroyed) insurance indemnity if the owner does not
- Usufructuary can make use of wish to rebuild.
the materials saved
- Owner has preferential right to Should the usufructuary have refused to
use the land and the materials contribute to the insurance, the owner
with obligation to pay the insuring the tenement alone, the latter
usufructuary during the shall receive the full amount of the
continuance of the usufructuary, insurance indemnity in case of loss, saving
the interest upon the sum always the right granted to the
equivalent to the value of the usufructuary in the preceding article.
land and materials SHARING IN THE INSURANCE EXPENSES:
*right to construct new building is given to - 50/50
the owner - If both pays, usufructuary will be
given the right to enjoy the new
building if one is reconstructed,
or to receive interest on the
insurance indemnity

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- Naked owner: if usufructuary *If the owner does not comply in whole, he
refused to share in insurance must put up a bond or security
expenses and the owner spent
alone; the owner alone is Art. 610. A usufruct is not extinguished by
entitled to indemnity in case of bad use of the thing in usufruct; but if the
loss of building abuse should cause considerable injury to
BASIS OF SHARING: proportional bases on the owner, the latter may demand that the
insurable interest; extent of prejudicial thing be delivered to him, binding himself
damage by loss or injury of property to pay annually to the usufructuary the net
OWNER: extent of injury/ damage if proceeds of the same, after deducting the
building is destroyed expenses and the compensation which
USUFRUCTUARY: fruits, harvest; if rented – may be allowed him for its administration.
based on rentals
The interest of the insurance proceeds to REMEDY IN CASE ABUSES OF
which the usufructuary is entitled should USUFRUCTUARY CAUSING CONSIDERABLE
likewise be based on insurable interest INJURY TO OWNER:
*Usufructuary can enjoy without the -If due to the abuses of the usufructuary on
obligation to pay for the excess spent the property, the usufructuary on the
*If naked owner spent larger amount than property in usufruct, the owner suffers
insurance proceeds, cannot recover interest considerable damages or injuries, he may
from usufructuary for use of tenement compel the usufructuary to deliver the thing
to him to be able to maintain it and protect
Art. 609. Should the thing in usufruct be it from destruction or loss
expropriated for public use, the owner -If usufructuary denies the owner’s claim of
shall be obliged either to replace it with considerable injury, court shall determine
another thing of the same value and of the issue based on preponderance of
similar conditions, or to pay the evidence
usufructuary the legal interest on the
amount of the indemnity for the whole BAD USE OF PROPERTY BY
period of the usufruct. If the owner USUFRUCTUARY:
chooses the latter alternative, he shall give -not a ground for extinguishment
security for the payment of the interest. - BUT gives the owner the right to demand
What are the obligations of the naked the delivery and administration of property
owner if the thing in usufruct be in usufruct when abuse is considerably
expropriated? prejudicial to the owner
1. Replace the thing expropriated with 1. injure the thing itself
another of the same value or similar 2. bad use will injure rights of naked owner
conditions
2. Pay the usufructuary legal interest *The owner cannot alienate right to
on the amount of indemnity for the usufruct while property is under
whole period of the usufruct, and administration
not just for the unexpired period

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- during administration, the naked owner is 1. He may retain property if:


not authorized to sell, encumber or a. He had advance payment of
mortagae the property held in usufruct taxes on capital
- it is advisable that the usufructuary shall b. He had incurred expenses for
register his usufructuary rightrs with the extraordinary repairs
proper Registry of Property, it shall warn 2. Right to remove improvements
third persons provide no damage shall be incurred
- any third person who deals on the 3. If he caused damage, and value not
property is bound to respect it settled, he may set off the
improvements against the damage.
Art. 611. A usufruct constituted in favor of 4. After delivery of the object in
several persons living at the time of its usufruct, the security must be
constitution shall not be extinguished until cancelled
death of the last survivor.
CONSTITUTION OF USUFRUCT IN FAVOR
OF SEVERAL PERSONS:
-Usufruct to several persons simultaneously
or successively, death of one of them does
not necessarily extinguish the usufructuary
because usufruct shall subsist with respect
to surviving usufructuaries
- death of last survivor will terminate unless
contrary intention appears

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.
OBLIGATIONS AND RIGHTS OF
USUFRUCTUARY UPON TERMINATION OF
THE USUFRUCT:
OBLIGATIONS:
1. Upon the termination of the
usufruct, the usufructuary shall
return the thing to the owner
2. He shall pay for damages suffered by
the property due to his own fault
RIGHTS:

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Title VII. - EASEMENTS OF SERVITUDES hand, or to a personal easement


upon the other hand
CHAPTER 1 NOTE: Easement used in Civil code is
EASEMENTS IN GENERAL equivalent to servitude

SECTION 1. - Different Kinds of Easements What is a dominant estate?


It is the immovable for which the easement
Art. 613. An easement or servitude is an was established
encumbrance imposed upon an immovable
for the benefit of another immovable What is a servient estate?
belonging to a different owner. It is the immovable which provides for the
benefit or service
The immovable in favor of which the
easement is established is called the *No easement may NOT be made on one’s
dominant estate; that which is subject own land
thereto, the servient estate.
What is an easement? LEASE DISTINGUISHED FROM EASEMENT:
It is a real right, constituted on another’s
property, corporeal and immovable 1. Lease is a real right only when the
whereby the owner of the latter must lease exceeds one year while
refrain from doing or allowing somebody easement is always a real right
else to do something on his property, for regardless if predial or personal
the benefit of another or his tenement. 2. In lease, there is rightful and limited
use AND possession WITHOUT
It is an encumbrance imposed upon an ownership while in easement, there
immovable for the benefit of another is rightful limited use without both
immovable belonging to a different owner possession and ownership
(real or predial easement). It may also be 3. Lease may involve real or personal
for the benefit of the community (personal property while easement can only
easements). refer to immovables

EASEMENT DISTINGUISHED FROM *Where the easement may be established


SERVITUDE: on any of several tenements surrounding
1. Easement is the name used in the dominant estate, the one where they
common law countries; servitude, in way is SHORTEST and will cause the LEAST
civil law countries damage should be chosen. However, if
2. Easement is broader than servitude these two circumstances do not concur in a
3. Easement is only one form of single tenement, the way which cause least
servitude damage should be used, even if not the
4. Easement is always predial or real shortest.
while a servitude refers to a predial
or real easement upon the one

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Art. 614. Servitudes may also be *No possession


established for the benefit of a *The exercise is naturally restricted by the
community, or of one or more persons to needs of the dominant estate or of its
whom the encumbered estate does not owner, such needs being dependent upon
belong. the progress of civilization
What are the kinds of easements?
1. Real or predial easement – for the *Easements, being abnormal restriction on
benefit of another immovable. ownership, are NOT presumed, but may be
2. Personal easement – for the benefit IMPOSED by law
of the community
In a right of way for the community, the *It is inherent, indivisible, intransmissible
owner cannot, however, capriciously and perpetual
exclude a particular person from using it
*No easement on personal property
PERSONAL EASEMENT DISTINGUISHED
FROM USUFRUCT: SOME EASEMENTS:
1. A personal easement cannot be 1. A dam supplying water confers a
alienated while a usufruct can be benefit, and if there is an easement,
alienated the dam cannot be destroyed
2. In personal easement, the use is 2. There is an easement when
specifically designated while in someone is granted the right to
usufruct, the use has a broader maintain wires across a parcel of
scope, all possible uses land belonging to another

CHARACTERISTICS OF EASEMENT:
1. Real right – therefore an action in Art. 615. Easements may be continuous or
rem is possible against the discontinuous, apparent or nonapparent.
possessor of the servient estate Continuous easements are those the use of
2. Imposable only on another’s which is or may be incessant, without the
property intervention of any act of man.
3. In jus re aliena – a real right may be Discontinuous easements are those which
alienated although the naked are used at intervals and depend upon the
ownership is maintained acts of man.
4. Limitation or encumbrance on the Apparent easements are those which are
servient estate for another’s benefit made known and are continually kept in
*It is essential that there be benefit view by external signs that reveal the use
otherwise no easement and enjoyment of the same.

*It is not essential that benefit be exercised. Nonapparent easements are those which
What is vital is that it can be exercised. show no external indication of their
existence.
*It is not essential that the benefit be very
great

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Art. 616. Easements are also positive or b. Discontinuos – used at intervals and
negative. depend upon the acts of man
Example: easement of right of way,
A positive easement is one which imposes because it can be exercised only if a
upon the owner of the servient estate the man passes or puts his feet over
obligation of allowing something to be somebody else’s land
done or of doing it himself, and a negative
easement, that which prohibits the owner 3. According to whether or not
of the servient estate from doing existence is indicated:
something which he could lawfully do if a. Apparent – made known and
the easement did not exist. continually kept in view by external
CLASSIFICATION OF EASEMENTS: sign that reveal the use and
1. According to party given the benefit: enjoyment of the same, right of way
a. Real or predial – for the benefit of when there is an alley or a
another immovable property permanent path; dam; window in a
belonging to a different owner party wall
Example: easement of water where *The mark or sign need not be seen but
lower estates are obliged to allow should be susceptible of being seen
water naturally descending from *The easement of aqueduct is always
upper estates to flow in them apparent, whether seen or not
Personal – for the benefit of the
community b. Non – apparent – show no external
Example: easement of right of way indication of their existence. In
for the passage of livestock or right general, negative easements,
of way for community easements of not building to more
2. According to the manner of exercise: than a certain height, easement of
a. Continuous – their use is incessant, lateral and subjacent support;
or may be incessant, without easement of intermediate distances.
intervention or any act of man Also a right of way if there is no
Example: easement of drainage, the visible path or alley.
right to support beam on another’s 4. According to the purpose of the
wall easement or the nature of the
*Easement of aqueduct is considered limitation:
continuous eventhough the flow of water a. Positive (sufferance or intrusion)
be not continuous – owner of the servient estate is
obliged to allow something to be
Is the easement of light and view a done on his property or to do it
continuous or discontinuous easement? himself. Easement of light and
It is continous, for indeed while all view in a party wall, right of way,
easements require human actions for duty to cut off tree branches
establishment, not all require human extending to the neighboring
actions for exercise. estates

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b. Negative (abstention or *When there is an easement for the benefit


restriction) – owner of the of the community, the owner can close, if
servient estate is PROHIBITED to he wants to, but he cannot, as long as it is
do something which he could open, discriminate against, one person and
lawfully do were it not for the still allow the others
existence of the easement.
Easement of light and view when *An opening or window in one’s own wall
the window or opening is on which does not extend over another’s
owns wall or estate property can be a basis of a negative
5. According to the right given: easement of light and view for here, the
a. Partial use – ex. Right of way neighboring owner may later on be
b. Getting of specific material – ex. prevented from obstructing the light and
Easement of drawing water view by the construction of an
c. Right to participate in ownership overshadowing building on his own land, a
– ex. Easement of party wall thing which he can lawfully construct were
d. Right to impede or prevent the it not for the existence of the easement
neighboring estate from
performing a specifica act of Art. 617. Easements are inseparable from
ownership. Easement of the estate to which they actively or
intermediate distances as when passively belong.
the servient estate cannot plant What is meant by the term inseparable?
trees without observing It indicated that the independently of the
distances immovable to which it is attached,
6. According to source or origin: easements do not exist.
a. Voluntary – constituted by will
or agreement of parties or by *Easements are mere accessories, hence
testator cannot be alienated, sold or donated
*Even if a voluntary easement be by independently of the real property to which
grant, it becomes a legal easement they are attached
or an easement by necessity, it is
still a propriety right, which *Alienations of tenements carries with it
continues even if the necessity has alienation of the easement
ended
b. Legal – those constituted by law *Registration of the dominant estate under
for public use or private interest the Torrens system without the registration
Examples: waters, right of way, of the easements in its favour does not
party wall, light and view, drainage extinguish easements; but registration of
of buildings, intermediate distances, the servient estate without the easements
against nuisances, lateral and burdening it extinguishes the easements.
subjacent support Actual knowledge of the easement is
c. Mixed – created partly by binding upon third persons.
agreement and partly by law
*Right of way may be legal or voluntary

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General Rule: Easements shall continue to *When the court says than an easement
subsist and shall be held to pass with the exists, it is NOT creating one, it merely
title of ownership until rescinded or declares the existence of an easement.
extinguished by virtue of the registration of There is no such thing as judicial easements.
the servient esates without including the
easements SECTION 2. - Modes of Acquiring
Easements
Exception: the grantee or transferee of the
servient estate actually knew of the
existence of the unrecorded easement and Art. 620. Continuous and apparent
there is already and understanding or easements are acquired either by virtue of
stipulation that the easement a title or by prescription of ten years.

Title – juridical act giving rise to an


Art. 618. Easements are indivisible. If the easement like by law, donation, contract
servient estate is divided between two or and will
more persons, the easement is not Prescription – continuous adverse
modified, and each of them must bear it possession or exercise of the easement for
on the part which corresponds to him. a period of 10 years. Good faith of just title
is not required. It is a special kind of
If it is the dominant estate that is divided prescription as the ordinary rules of
between two or more persons, each of prescription as a mode of acquiring
them may use the easement in its entirety, ownership do not apply.
without changing the place of its use, or
making it more burdensome in any other *Other than continuous and apparent
way. easements, it may only be acquired by title

*The division of estate does not divide the *Intestate succession does not create
easement, which continuous to be easement, for no act is involved. It merely
complete un that each dominant estates, transmits an easement already made
but only on the part corresponding to each
of them. *Prescription irrespective of good faith or
Example: bad faith
Estate A, the dominant estate, is divided
into three, with owners, X, Y, Z having *The government cannot compel PLDT to
determinate parts thereof. Each of the enter into a contract with it (re-
three may use the easement of the right of interconnection of the government
way for example, provided the burden is telephone system with PLDT) – for freedom
not increased. of stipulation is of the essence of our
Art. 619. Easements are established either contractual system; BUT the Republic may
by law or by the will of the owners. The in its exercise of the sovereign power of
former are called legal and the latter eminent domain, may REQUIRE the PLDT to
voluntary easements. permit interconnection between the
government telephone system and that of

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the PLDT, as the needs of the government *The notarial prohibition makes the non-
service may require, subject to just apparent, apparent
compensation. Normally, ownership of the *Oral prohibition is not sufficient
expropriated property would result, but Examples:
there is no reason why eminent domain 1. A and B are neighbours and they
cannot be used to merely impose a burden own a party wall with an opening or
or encumbrance upon the condemned window made on 2002. B can close
property. It is unquestionable that real it anytime before 2012. Because if
property may thru expropriation, be by that time the window is still
subjected to the easement of right of way. open, A has already acquired the
It is for the benefit of the public. easement of light and view by
prescription of 10 years, counted
Art. 621. In order to acquire by from the opening of the window
prescription the easements referred to in since this is a POSITIVE EASEMENT.
the preceding article, the time of 2. A and B are neighbours. On his
possession shall be computed thus: in building’s wall , A opened a window
positive easements, from the day on which beneath the ceiling joists to admit
the owner of the dominant estate, or the light in 2002. Even after 10 years
person who may have made use of the (2012), B may still obstruct the light
easement, commenced to exercise it upon by constructing on his own lot a
the servient estate; and in negative building higher than A’s unless A
easements, from the day on which the makes a notarial prohibition
owner of the dominant estate forbade, by prohibiting B from making
an instrument acknowledged before a obstruction. If in 2002, A makes the
notary public, the owner of the servient prohibition B may still make the
estate, from executing an act which would obstruction in 2009 because it is
be lawful without the easement. (538a) within the 10 year period allowed by
law. After 2012, B may no longer
COMPUTATION OF THE PERIOD: obstruct. A window opened on one’s
1. Positive easements – possession own wall and which DOES NOT
shall be counted from the date the extend over the negighbor’s land
owner of the dominant estate or the may give rise to a NEGATIVE
user began to exercise it upon the easement, since the neighbour may
servient estate be prohibited to do an act which
2. Negative easements – possession should be lawful to do if easement
shall e counted from the date the does not exist.
owner of the dominant estate had
forbidden by “notarial prohibition,” Is the easement of light and view positive
the owner of the servient estate or negative?
from executing the act which will It depends. If it is made on one’s OWN wall
impede the rising of the easement – and does not extend on neighbor’s land, the
which act could be lawfully done easement is negative. If it is made on one’s
were it not for the easement own wall which extends over the

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neighboring land or if made on a party wall,


the easement is an act of suffereance or Art. 624. The existence of an apparent sign
allowance, the easement is positive. of easement between two estates,
established or maintained by the owner of
May an easement of right of way be both, shall be considered, should either of
acquired by prescription? them be alienated, as a title in order that
No because it is discontinuous or the easement may continue actively and
intermittent. passively, unless, at the time the
ownership of the two estates is divided,
Why negative easements can be acquired the contrary should be provided in the title
by prescription despite the fact that they of conveyance of either of them, or the
are non-apparent: sign aforesaid should be removed before
Not because there are visible signs of their the execution of the deed. This provision
existence but because of the making of shall also apply in case of the division of a
notarial prohibition makes it apparent. thing owned in common by two or more
persons.
Art. 622. Continuous nonapparent
easements, and discontinuous ones, APPLICABILITY OF THIS ARTICLE:
whether apparent or not, may be acquired a. Whether only one or both estates
only by virtue of a title. are alienated
b. Even if there be only one estate but
EASEMENTS THAT MAY BE ACQUIRED BY there are two portions thereof, as
TITLE: long as later on there is a division of
1. Continuous non-apparent – because the ownership of said portion
they are not public c. Even in the case of division of
2. Discontinuous apparent – because common property, though this is not
possession is NOT uninterrupted alienation
3. Discontinuous non-apparent –
because it is neither public nor Example: “A” owns 2 adjacent lots (Lot 1
uninterrupted and Lot 2) covering by two certificates of
titles. Lot 1 is abutting the highway and Lot
Art. 623. The absence of a document or 2 is behind Lot 1. There exists a cemented
proof showing the origin of an easement road in Lot 1 which is being used as the
which cannot be acquired by prescription passageway in going to and from the
may be cured by a deed of recognition by interior lot.
the owner of the servient estate or by a “A” donated Lot 1 to “B” and sold it to “C”
final judgment. These alienations of the two lots to
different persons will have the effect of
*Court’s decision is merely declaratory creating an easement of right of way in
*As long as the existence of a voluntary favour of Lot 2 provided the road still exists
easement can be proved by court, it is at the time of the donation and sale, and no
immaterial that there is no document contrary stipulation has been provided in
evidencing the existence of the easement the deeds of donation and sale

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*Before alienation, there is no true *Allowing friends to pass by a right of way


easement would be considered burdensome
*There arises an easement if the sign
continuous to remain unless there is a If the right of way refers to the passage of
contrary agreement a certain number of vehicles, can the
*There is no true easement if sign is dominant estate increase the number of
removed said vehicles?
Check doctrines on Amor vs Florentino and No. It constitutes an increase in burden or a
Valisno vs Adriano different form of exercising the easement.
Example: A owns Estate 1 and Estate 2 and
there exists a road or passageway allowing What is easement in gross or easement
passage from Estate 1 thru Estate 2. If apurtenent?
Estate `` is sold to B, and Estate 2 is sold to These are easements without dominant
C, the easement exists if the road still exists, estates. They are purely personal interests
unless the contrary has been provided in in the land of another but, nevertherlss, are
the deed of conveyance of either of them considered real property
*If deed is silent, the easement still exists
unless sign be removed. SECTION 3. - Rights and Obligations
of the Owners of the Dominant and
Art. 625. Upon the establishment of an Servient Estates
easement, all the rights necessary for its
use are considered granted. (542) Art. 627. The owner of the dominant
*There is always an implied grant of all estate may make, at his own expense, on
rights including repair, maintenance, the servient state any works necessary for
accessory easement such as the right of the use and preservation of the servitude,
way when the easement is for the drawing but without altering it or rendering it more
of water burdensome.

*To bind third persons, voluntary For this purpose he shall notify the owner
easements must be registered of the servient estate, and shall choose the
most convenient time and manner so as to
Art. 626. The owner of the dominant cause the least inconvenience to the
estate cannot use the easement except for owner of the servient estate. (543a)
the benefit of the immovable originally
contemplated. Neither can he exercise the Art. 628. Should there be several dominant
easement in any other manner than that estates, the owners of all of them shall be
previously established. obliged to contribute to the expenses
referred to in the preceding article, in
Example: If Estate A has a right of way over proportion to the benefits which each may
Estate B, it does not necessarily follow that derive from the work. Any one who does
Estate C (even if also owned by Estate A) not wish to contribute may exempt himself
has a right of way over Esate B. by renouncing the easement for the
benefit of the others.

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d. Must not alter the easement nor


If the owner of the servient estate should render it more burdensome
make use of the easement in any manner 3. To ask for a mandatory injunction to
whatsoever, he shall also be obliged to prevent impairment or obstruction
contribute to the expenses in the in the exercise of the easement as
proportion stated, saving an agreement to when the owner of the servient
the contrary. (544) estate obstructs the right of way by
building wall or fence
Art. 629. The owner of the servient estate 4. To renounce totally the easement if
cannot impair, in any manner whatsoever, he desires exemption from
the use of the servitude. contribution to expenses
Nevertheless, if by reason of the place OBLIGATIONS OF THE DOMINANT ESTATE:
originally assigned, or of the manner 1. He cannot alter the easement
established for the use of the easement, 2. He cannot make it more
the same should become very burdensome
inconvenient to the owner of the servient a. Thus he cannot use the
estate, or should prevent him from making easement except for movable
any important works, repairs or originally contemplated
improvements thereon, it may be changed b. In the easement of right of way,
at his expense, provided he offers another he cannot increase the agreed
place or manner equally convenient and in width or path, nor deposit soil or
such a way that no injury is caused thereby materials outside of the
to the owner of the dominant estate or to boundaries agreed upon
those who may have a right to the use of 3. If there be several dominant estates,
the easement. (545) each must contribute to necessary
repairs and expenses in proportion
Art. 630. The owner of the servient estate to the benefits receives by each
retains the ownership of the portion on estate. In the absence of proof, it is
which the easement is established, and presumed to be equal.
may use the same in such a manner as not 4.
to affect the exercise of the easement. RIGHTS OF SERVIENT ESTATE:
1. To retain ownership and possession
RIGHTS OF THE DOMINANT ESTATE: of the portion of the land affected
1. To exercise the easement and all by the easement even if indemnity
necessary rights for its use including for the right of way is given unless
accessory easements the contrary has been stipulated
2. To make on the servient estate all 2. To make use of the easement,
works necessary for the use and unless deprived by stipulation
preservation, BUT- provided that the exercise of the
a. Must be at his own expense easement is not adversely affected
b. Must notify servient owner and provided further that he
c. Select convenient time and contributes to the expenses in
manner

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proportion to the benefits received, unless when the use becomes


unless there is a contrary stipulation possible, sufficient time for
3. To change the location of a very prescription has elapsed, in
inconvenient easement provided accordance with the provisions of
than an equally convenient the preceding number;
substitute is made without injury to (4) By the expiration of the term or
the dominant estate the fulfillment of the condition, if
the easement is temporary or
OBLIGATION OF THE SERVIENT ESTATE: conditional;
1. Cannot impair the use of the (5) By the renunciation of the
easement owner of the dominant estate;
2. Must contribute to the expenses in (6) By the redemption agreed upon
case he uses the easement, unless between the owners of the
there is a contrary stipulation dominant and servient estates.
3. In case of impairment, to restore the
conditions to the status quo at his MODES OF EXTINGUISHING EASEMENTS:
expense plus damages. In case of 1. Merger – it must be absolute,
obstruction, he may be restrained complete, not temporary. Thus if the
by injunction owner of the servient estate buys
4. To pay for the expenses incurred for the whole portion affected, the
the change of location or form of merger is complete and the
the easement easement is extinguished.
When the estate is sold subject to a
SECTION 4. - Modes of Extinguishment of pacto de retro, the easement is not
Easements extinguished. The merger is only
Art. 631. Easements are extinguished: temporary because there can be a
(1) By merger in the same person of redemption period. It becomes
the ownership of the dominant and absolute only if the redemption
servient estates; period lapses without any
(2) By nonuser for ten years; with redemption having been made by
respect to discontinuous the seller
easements, this period shall be 2. Non-use for 10 years – presupposes
computed from the day on which that the easement had been used
they ceased to be used; and, with before but it was abandoned later
respect to continuous easements, for 10 years. If there are several
from the day on which an act dominant owners, use of one
contrary to the same took place; prevents prescription
(3) When either or both of the
estates fall into such condition that How is prescription computed?
the easement cannot be used; but If it is a discontinuous easement, from the
it shall revive if the subsequent time it ceased to be used. If it is a
condition of the estates or either of continuous easement, from the date an act
them should again permit its use, contrary to the easement has taken place.

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*The proof must be indubitable extinguishes the easement, if the


3. Bad condition of the tenement or servient owner makes a demand for
impossibility of use – this merely suspend such extinguishment
unless extinguishment is caused by the Art. 632. The form or manner of using the
necessary period for non-use since easement may prescribe as the easement
possibility of use revives the easement itself, and in the same way.
Example: A right of way was thickly covered
by laharincluding the entire tenement on *The easement may itself prescribe
which it is imposed. The easement is
extinguished *The form or manner of using may also
prescribe in the same manner as the
If the servient estate is flooded, the easement itself
easement of right of way cannot serve its
purpose. After the recessionof the flood, it *Some legal easements do not prescribe
can be used again, unless prescription sets like servitude of natural drainage, but the
in manner and form of using them may
3. Expiration of the term or fulfilment prescribe, as in the case of an easement of
of the condition right of way
Example: The easement will be effective
until the death of the dominant owner. *Form or manner AND easement itself are
Upon the latter’s death, the easement is distinct
extinguished
4. Renunciation – it must be express, CAN A RIGHT OF WAY BE ACQUIRED BY
clear and specific. This is particularly PRESCRIPTION?
true for discontinuous easements. It JQ’s opinion: No but the portion itself can
must be done in a public instrument be acquired by third person ONLY.
5. Redemption – agreement between
the owners of the dominant and
servient estate whereby the servient Art. 633. If the dominant estate belongs to
owner is given the right to redeem several persons in common, the use of the
the easement, and he redeems it by easement by any one of them prevents
paying agreed sum. prescription with respect to the others.
6.
OTHER GROUNDS: *The non-use of other co-owners cannot
1. Expropriation give rise to prescription, even with respect
2. Permanent impossibility to make to their own shares
use of easement
3. Annullment, recission, cancellation
of title
4. Abandonment of the servient estate
5. In the case of legal easement of
right of way, the opening of an
aqueduct outlet to the highway

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CHAPTER 2
LEGAL EASEMENTS Art. 636. Easements established by law in
the interest of private persons or for
SECTION 1. - General Provisions private use shall be governed by the
provisions of this Title, without prejudice
Art. 634. Easements imposed by law have to the provisions of general or local laws
for their object either public use or the and ordinances for the general welfare.
interest of private persons. These easements may be modified by
agreement of the interested parties,
whenever the law does not prohibit it or
WHAT IS A LEGAL EASEMENT? no injury is suffered by a third person.
These are easements imposed by law, and
which have for their object either for public HOW LEGAL EASEMENTS FOR PRIVATE
use or the interest of private persons INTERESTS ARE GOVERNED:
1. Agreement of interested parties
KINDS OF LEGAL EASEMENTS: provided not prohibited by law nor
1. Public use – for the benefit of the prejudicial to a third person
community 2. In default, general or local law and
2. Private use – for the benefit of ordinances for the general welfare
private persons 3. In default, Civil Code

WHAT ARE THE DIFFERENT LEGAL


EASEMENTS? SECTION 2. - Easements Relating to Waters
1. Easement relating to water
2. Right of way Art. 637. Lower estates are obliged to
3. Party wall receive the waters which naturally and
4. Light and view without the intervention of man descend
5. Drainage from the higher estates, as well as the
6. Intermediate distances stones or earth which they carry with
7. Easement against nuisance them.
8. Lateral and subjacent support The owner of the lower estate cannot
construct works which will impede this
Art. 635. All matters concerning easements easement; neither can the owner of the
established for public or communal use higher estate make works which will
shall be governed by the special laws and increase the burden. REPEALED
regulations relating thereto, and, in the
absence thereof, by the provisions of this The repealing law provides:
Title.
Art. 50 Lower estates are obliged to receive
HOW ARE PUBLIC OR COMMUNAL the waters which naturally and without the
EASEMENTS GOVERNED? intervention of man flow from the higher
First by special laws and regulations then estates, as well as the stone or earth which
the Civil Code in a suppletory effect. they carry with them.

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The owner of the lower estate cannot *There will be no indemnity if the
construct works which will impede this conditions laid down in law had been
natural flow, unless he provides an complied with by the dominant estates.
alternative method of drainage, neither can
the owner of the higher estate make works Art. 638. The banks of rivers and streams,
which will increase their natural flow. even in case they are of private ownership,
are subject throughout their entire length
*By way of exception, the servient estate and within a zone of three meters along
may now construct works which may their margins, to the easement of public
obstruct the natural flow of the waters as use in the general interest of navigation,
long as an alternative drainage has been floatage, fishing and salvage.
provided. Estates adjoining the banks of navigable or
floatable rivers are, furthermore, subject
*Lower estates – servient to the easement of towpath for the
*Higher estates – dominant exclusive service of river navigation and
floatage.
OBLIGATIONS OF THE SERVIENT ESTATE: If it be necessary for such purpose to
1. Constructions of works that will occupy lands of private ownership, the
impede the easement or which will proper indemnity shall first be paid.
divert the flow of the waters and REPEALED
burden any tenement
2. Enclosure of the land by ditches and The repealing law provides:
fences to impede the flow of the Art 51. The banks of rivers and streams and
waters the shores of the seas and lakes throughout
their entire length and within a zone of 3
OBLIGATIONS OF THE DOMINANT meters in urban areas, 20 meters in forest
ESTATES: areas, along margins are subject to the
1. Cannot use the construction of easement of public use in the interest of
works which will intensify the recreation, navigation, floatage, fishing and
burden on the servient estate. salvage. No person shall be allowed to stay
However, they are allowed to in the zone longer than what is necessary
construct works that will be for recreation, navigation, floatage, fishing
beneficial to the servient estates or salvage or to build structures of any kind
such as works to prevent the erosion (PD 1067)
of the land
Easement covered –
2. They must compensate the owners 1. Easement of public use in the
of the servient estate if the waters interest of recreation
are the result of an overflow from 2. Navigation
irrigation dams, or the result of 3. Floatage
artificial descent done by man and 4. Fishing
damages caused by reason thereof 5. Salvage

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Width of zone of banks of rivers, streams, Art. 640. Compulsory easements for
shores of seas and lakes subject to drawing water or for watering animals can
easements be imposed only for reasons of public use
1. Urban areas – 3m in favor of a town or village, after payment
2. Agricultural areas – 20m of the proper indemnity.
3. Forest areas – 40m

Art. 639. Whenever for the diversion or EASEMENTS FOR DRAWING WATER OR
taking of water from a river or brook, or FOR WATERING ANIMALS:
for the use of any other continuous or 1. They can be imposed only for public
discontinuous stream, it should be use
necessary to build a dam, and the person 2. They must be in favour of a town or
who is to construct it is not the owner of village
the banks, or lands which must support it, 3. Proper indemnity must be paid
he may establish the easement of *It presupposes the availability of water
abutment of a dam, after payment of the within the property of the servient estate
proper indemnity. which is needed for the use of the
community or for the bathing of their
Example: animals like carabaos, cattle, etc. In favour
A wants to get water from a river, but to do of a town or village.
so, he has to construct a dam on B’s land. A
must first ask B’s permission or else request Art. 641. Easements for drawing water and
for an administrative investigation to find for watering animals carry with them the
out whether the building of the dam is obligation of the owners of the servient
essential or not. If neither permission nor estates to allow passage to persons and
investigation is present, and a dam is animals to the place where such
constructed, what would be the easements are to be used, and the
consequences of A’s action? indemnity shall include this service.
a. It is as if A had taken the law into
the hands, for in the absence of B’s *The principal easements covered are the
permission, the government should easements for drawing water and watering
have first investigated. animals but there is also an accessory
b. Since A’s action amounted to the easement here combined with the first,
taking of the property without due namely, the easement of the right of way
process of law, the dam or
construction can be considered a REQUIREMENT FOR SUCH AN EASEMENT
private nuisance, and B cannot be TO EXIST:
restrained if he desires to demolish 1. Must be for public use
same 2. Must be in favour of a town or
*Indemnity is required village
3. The right must be sought not by one
*Permit from appropriate authority needed individual, but by town or village,
thru legal representation

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4. There must be payment for proper (1) To prove that he can dispose of
indemnity the water and that it is sufficient
5. The right of way is only for a for the use for which it is intended;
maximum width of 10 meters (2) To show that the proposed right
of way is the most convenient and
Art. 642. Any person who may wish to use the least onerous to third persons;
upon his own estate any water of which he (3) To indemnify the owner of the
can dispose shall have the right to make it servient estate in the manner
flow through the intervening estates, with determined by the laws and
the obligation to indemnify their owners, regulations.
as well as the owners of the lower estates
upon which the waters may filter or OBLIGATIONS OF THE OWNER OF THE
descend. DOMINANT ESTATE:
1. He can dispose of the water
What is an aqueduct? 2. Water is sufficient for the intended
It is a conduit or artificial channel for use
conducting water from a distance 3. The proposed right of way where
the water will pass through is the
What is meant by easement of aqueduct? most convenient and least onerous
It is a right to make one’s water tun and to the servient estates
flow through intervening estates for his 4. The indemnity is paid
own use. However, he is obliged to pay
indemnity to the owners of the intervening *Easement of right of way does not
estates and to all other owners of the lower necessarily include easement of aqueduct.
estates where the water may descend Hence, it is not to be presumed that when
through someone is granted the right of way, he
may dig trenches and lay pipelines for
REQUISITES: conducting water to his tenement
1. Rights of disposal
2. Indemnity Art. 644. The easement of aqueduct for
3. Least injurious and most convenient private interest cannot be imposed on
buildings, courtyards, annexes, or
WHAT IS THE NATURE OF AQUEDUCT? outhouses, or on orchards or gardens
It is continuous and apparent. already existing.

MAY IT BE ACQUIRED THROUGH *when an easement of aqueduct will be


PRESCRIPTION? allowed to burdent the said properties,
No, water is owned by the state. It is only there will be an invasion of the privacy of
CA for legal purposes. the premises of the owners thereof.
However, if the easement of aqueduct is for
Art. 643. One desiring to make use of the the benefit of the public or community, it
right granted in the preceding article is can be imposed on the properties.
obliged:

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b. The water is sufficient for the


Art. 645. The easement of aqueduct does use indicated for which it is
not prevent the owner of the servient intended
estate from closing or fencing it, or from c. Proposed course is the most
building over the aqueduct in such manner convenient and least onerous to
as not to cause the latter any damage, or third persons and the servient
render necessary repairs and cleanings estate
impossible. d. The proper administrative
permission is obtained
RIGHT TO CLOSE OR FENCE OR TO BUILD
STRUCTURES: POSSIBLE WAYS OF MAKING EFFECTIVE
a. No damage is caused to the THE EASEMENT:
aqueduct 1. Construction of an open canal (not
b. Repairs and cleaning of the dangerous nor very deep)
aqueduct shall not be rendered 2. Construction of a covered or closed
canal (if so required by the legal
Art. 646. For legal purposes the easement authorities to lessen danger)
of aqueduct shall be considered as 3. Construction of tubes or pipes (Law
continuous and apparent, even though the of waters
flow of the water may not be continuous,
or its use depends upon the needs of the OBLIGATION OF DOMINANT OWNER:
dominant estate, or upon a schedule of 1. To keep the aqueduct in proper use
alternate days or hours. (561) or care
2. To keep on hands necessary
*Easement of right of way does not always materials for its use
include easement of aqueduct
PRESERVATION OF RIGHT OF SERVIENT
*The right to dig trenches and lay pipelines ESTATE TO FENCE:
for conducting of water not included in a The servient owner may still enclose or
contract granting a right of way fence the servient estate, or even build over
the aqueduct, so long as:
a. No damage is caused
REQUISITES TO ACQUIRE THE EASEMENT: b. Or repairs and cleanings become
1. Indemnity must be paid. Amount impossible
depends on DURATION and
inconvenience caused PARTICULAR CHARACTERISTICS OF THE
2. If for private interest, the easement EASEMENT:
cannot be imposed on EXISTING It is continuous and apparent for LEGAL
buildings, courtyards, annexes, out- PURPOSES.
houses, orchards, or gardens
3. Proof: Art. 647. One who for the purpose of
a. That he can dispose irrigating or improving his estate, has to
construct a stop lock or sluice gate in the

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bed of the stream from which the water is Should this easement be established in
to be taken, may demand that the owners such a manner that its use may be
of the banks permit its construction, after continuous for all the needs of the
payment of damages, including those dominant estate, establishing a permanent
caused by the new easement to such passage, the indemnity shall consist of the
owners and to the other irrigators. (562) value of the land occupied and the amount

CONSTRUCTION OF A STOP LOCK OR WHAT IS EASEMENT OF RIGHT OF WAY?


SLUICE GATE: It is an easement or privilege by which one
1. Purpose must be for irrigation or person or a particular class of persons is
improvement allowed to pass over another’s land, usually
2. The construction must be on the thru one particular path or line. The term
estate of another right of way upon the other hand, may refer
3. Damages must be paid either to the easement itself, or simply, to
4. Third persons should not be the strip of land over which passage can be
prejudiced done.

Art. 648. The establishment, extent, form REQUISITES FOR THE EASEMENT: (must
and conditions of the servitudes of waters, strictly be complied with)
to which this section refers, shall be 1. The property is surrounded by other
governed by the special laws relating estates
thereto insofar as no provision therefor is 2. There is no adequate outlet to the
made in this Code. (563a) public highway. If outlet is thru the
water, like a river or sea, under the
*Civil Code provisions on Easements of Spanish law, the easement cannot
Waters prevail over Special Laws be demanded for there exists an
adequate outlet
*Special laws referred to includes the 3. There must be payment of the
Spanish law of waters, irrigation law as proper indemnity
amended 4. It must be established at the point
least prejudicial to the servient
SECTION 3. - Easement of Right of Way estate.
5. The isolation must not be due to the
Art. 649. The owner, or any person who by proprietor’s own acts
virtue of a real right may cultivate or use 6. Demandable only by the owner or
any immovable, which is surrounded by one with a real right like a
other immovables pertaining to other usufructuary
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.

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WHAT IF ISOLATION WAS DUE TO THE 2. Publlic


DOMINANT ESTATE, CAN HE STILL EASEMENT IN FAVOR OF THE
DEMAND FOR RIGHT OF WAY? GOVERNMENT:
No. It is self-inflicted. Right of way is The only easement which a private owner is
compulsory but if it is due to the acts of required to recognize in favour of the
dominant estate, it becomes voluntary. government is the easement of a “public
highway, way, private way established by
*Existence of an easement is not dependent law or any government or lateral thereof,”
on the consent of the owners because it is a where the certificate of title does not state
legal easement. that the boundaries thereof have been
determined. But even in the case, it is
IS IT ONLY THE OWNER OF THE DOMINANT necessary that the easement should have
ESTATE WHICH CAN DEMAND EASEMENT? been previously established by law, which
No. Also the usufructuary. implies that the same should have been
pre-existing at the time of the registration
MAY A LESSEE DEMAND A RIGHT OF WAY? of the land in order that the registered
No, it is a personal right. If he wants to, he owner may be compelled to respect it.
should ask the lessor if he has a real where the easement is not pre-existing and
necessity. is sought to be imposed only after the land
has been registered under the Land
*The burden of proving the existence of the Registration Act, proper expropriation
prerequisites to validly claim a compulsory proceedings, should be had, and just
right of way lies on the owner of the compensation paid to to the registered
dominant estate owner thereof. For, it is elementary that the
public use may not be imposed on private
PROPER INDEMNITY: property without expropriation proceedings
a. If the passage is permanent, pay the and payment of just compensation made to
value of land occupied by the path the owner.
plus damages. (Upon extinction of
the easement, the indemnity is Art. 650. The easement of right of way
returned without interest, for the shall be established at the point least
interest is considered rent) prejudicial to the servient estate, and,
b. If temporary, pay for the damages insofar as consistent with this rule, where
caused. (It is temporary when, for the distance from the dominant estate to a
example, the estate is not being public highway may be the shortest. (565)
cultivated whole year round, and
when harvesting is only once in a Art. 651. The width of the easement of
while, or when the carrying of right of way shall be that which is
materials is needed to improve a sufficient for the needs of the dominant
building estate, and may accordingly be changed
from time to time. (566a)
CLASSIFICATION OF RIGHT OF WAY:
1. Private

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WIDTH OF PATH: the donor shall not be liable for indemnity.


1. The width may be modified from (n)
time to time depending upon the
reasonable needs of the dominant
estate RULE IF GRANTOR’S OR GRANTEE’S LAND
2. Nowadays, the use of automobiles is IS ENCLOSED OR ISOLATED:
a vital necessity, hence, the pathway 1. If the ENCLOSING estate is that of
should be sufficient for this the grantor, the grantee does not
pay indemnity for the easement
Art. 652. Whenever a piece of land 2. If the ENCLOSED estate id that of the
acquired by sale, exchange or partition, is grantor, the grantor must pay
surrounded by other estates of the vendor, indemnity
exchanger, or co-owner, he shall be
obliged to grant a right of way without NATURE OF THE EASEMENT:
indemnity. The easement in 652 and 653 is in a sense
In case of a simple donation, the donor of a voluntary easement. It is of course
shall be indemnified by the donee for the compulsory in the sense that is has to be
establishment of the right of way. (567a) granted, generally without the payment of
indemnity.
GRANTING OF RIGHT OF WAY, WITHOUT
INDEMNITY: SPECIAL PROBLEMS:
When the vendor sells a parcel of 1. A sold to B a parcel of land
land and this land is surrounded by other surrounded by other estates. A gave
estates of said vendor and is without access B and outlet thru Estate 1 without
to a public highway, the vendor is obliged to indemnity since the purchase price
grant a right of way with demanding an presumably already included the
indemnity. right to the easement. Later, the
This rule equally applies to an outlet thru Estate 1 became useless
exchange of property, or partition of because the highway to which it led
property, or partition of property in co- was closed. If B demands another
ownership. The exchange, or the co-owner outlet, is he allowed to get one? If
shall have the same obligation as the so, must he pay indemnity?
vendor. ANS: Yes, he can demand another outlet
However, if the juridical act is simple under Art 649 (and must therefore pay).
donation, the donee is obliged to pay He cannot take advantage of Art 652
indemnity to the donor for the because after all, the outlet had already
establishment of the easement of right of been granted once, that is, when the
way. sale was made. This time, the necessity
arises not because of the sale, but
Art. 653. In the case of the preceding because of necessity itself.
article, if it is the land of the grantor that
becomes isolated, he may demand a right 2. A ones 2 estates. He sold the first
of way after paying a indemnity. However, (having access to the highway) to B.

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Later, he sold the second (without In both cases, the public highway must
access) to C. So that C can gain substantially meet the needs of the
access, he must pass thru B’s land. dominant estate in order that the
Does C have to pay indemnity to B? easement may be extinguished. (568a)
ANS: It is submitted that the answer is YES,
because after all, B did not sell the land to CAUSES FOR EXTINGUISHMENT OF THE
C, and clearly ART 652 cannot apply despite EASEMENT OF RIGHT OF WAY:
a decision contrary by the Spanish Supreme 1. Opening of new road
Court, which ruled A should take care of the 2. Joining the dominant estate to
indemnity . another (that is the latter becomes
also the property of the dominant
Art. 654. If the right of way is permanent, owner) which abuts, and therefore
the necessary repairs shall be made by the has access to the public highway. Ut
owner of the dominant estate. A the new access must be adequate
proportionate share of the taxes shall be and convenient.
reimbursed by said owner to the
proprietor of the servient estate. (n) EXTINGUISHMENT IS NOT AUTOMATIC:
The extinguishment is not automatic,
OWNERSHIP OF, AND REPAIRS AND TAXES because the law provides that the serivent
ON, PATH: owner “may demand” It follows that if he
1. Even though permanent, the path chooses not to demand, the easement
belongs to the servient estate, and remains and he has no duty to refund the
he pays ALL the taxes indemnity.
2. BUT the dominant estate:
a. Should pay for repairs NON-APPLICABILITY OF THE ARTICLE TO A
b. Should pay proportionate shares VOLUNTARY EASEMENT: Not applicable to
of taxes to the estate a voluntary one
(“proportionate” means the
WHOLE tax for the whole estate) NO RETURN OF INDEMNITY IN CASE OF
TEMPORARY EASEMENT – If the easement is
Art. 655. If the right of way granted to a temporary, the indemnity does not have to be
surrounded estate ceases to be necessary returned since the damage had already been
because its owner has joined it to another caused.
abutting on a public road, the owner of the
CAUSES FOR EXTINGUISHNG A LEGAL OR
servient estate may demand that the
COMPULSORY RIGHT OF WAY:
easement be ext,inguished, returning what
1. When the dominant estate is joined to
he may have received by way of another estate which is abutting a
indemnity. The interest on the indemnity public road, the access being adequate
shall be deemed to be in payment of rent and convenient
for the use of the easement. 2. When a new road is opened giving
The same rule shall be applied in case a access to the isolated estate
new road is opened giving access to the
isolated estate. *No interest due on return of indemnity

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RETURN OF INDEMNITY, WHEN NOT animal trail that of 37 meters and 50


REQUIRED – when the easement is not centimeters.
permanent but only temporary, upon its Whenever it is necessary to establish a
extinction, there is no indemnity to reimburse. compulsory easement of the right of way
The damage had already been done. The
or for a watering place for animals, the
indemnity paid has the nature of rentals in a
provisions of this Section and those of
lease contract which do not need to be
returned after the termination of the lease. This Articles 640 and 641 shall be observed. In
is but fair. this case the width shall not exceed 10
meters. (570a)
Art. 656. If it be indispensable for the
construction, repair, improvement, EASEMENT OF RIGHT OF WAY FOR THE
alteration or beautification of a building, PASSAGE OF LIVESTOCK – servidumbres
to carry materials through the estate of pecurias
another, or to raise therein scaffolding or
other objects necessary for the work, the WIDTH (MAXIMUM):
owner of such estate shall be obliged to 1. Animal path – 75 meters
permit the act, after receiving payment of 2. Animal trail – 37 meters and 50
the proper indemnity for the damage centimeters
caused him. (569a) 3. Cattle – 10 meters (unless proper to
the Old Civil Code, vested rights had
TEMPORARY EASEMENT OF RIGHT OF been acquired to a greater width)
WAY:
1. The easement here is necessarily CROSS-REFERENCE:
only TEMPORARILY, nonetheless 640 and 640 relate to:
proper indemnity must be given 1. Indemnity payment
2. “Indispensable” is not to be 2. The fact that the easement for
construed literally. The causing of drawing water or for watering
great inconvenience is sufficient animals can be imposed only for
3. The owner (or usufructuary) can reasons of public use in favour of
make use of 656 town or village

Art. 657. Easements of the right of way for SECTION 4. - Easement of Party Wall
the passage of livestock known as animal
path, animal trail or any other, and those Art. 658. The easement of party wall shall
for watering places, resting places and be governed by the provisions of this Title,
animal folds, shall be governed by the by the local ordinances and customs
ordinances and regulations relating insofar as they do not conflict with the
thereto, and, in the absence thereof, by same, and by the rules of co-ownership.
the usages and customs of the place. (571a)
Without prejudice to rights legally
acquired, the animal path shall not exceed *The easement of party wall is also called
in any case the width of 75 meters, and the servidumbre de medianera

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WHAT IS A PARTY WALL? (1) In dividing walls of adjoining


It is a wall erected on the line between two buildings up to the point of
adjoining properties belonging to different common elevation;
persons, for the use of both estates. In (2) In dividing walls of gardens or
genereal, by statute such wall must be built yards situated in cities, towns, or in
equally on both properties at the genereal rural communities;
expense of the owners; but, if only one (3) In fences, walls and live hedges
owner wishes to use it, he shall build at his dividing rural lands. (572)
own expense, the other party paying half of
its value when in the future he makes use of
it. Co-ownership governs the wall, hence EXISTENCE OF EASEMENT OF PARTY WALL,
the party wall is necessarily a common wall. PRESUMED:
However, not all common walls are party 1. In dividing walls of adjoiingn
walls. For example, a handball wall owned buildings up to the point of common
by two brothers, on their common lot is a elevation
common wall, but is not a party wall 2. In dividing walls of gardens or yards
situated in cities, towns, or in rural
IS THE EASEMENT OF PARTY WALL REALLY communities
AN EASEMENT OR IS IT A CASE OF CO- 3. In fences, walls and living hedges
OWNESRSHIP? dividing rural lands
It is a compulsory kind of co-
ownership (FORGED INDIVISION) where HOW PRESUMPTION THAT A WALL IS A
the shares of each owner cannot be PARTY WALL MAY BE REBUTTED:
separated physically (otherwise the wall The presumption is rebutted by:
would be destroyed), although said shares 1. Title to the contrary
may in a sense be materially pointed out. 2. Exterior signs to the contrary
(Thus, each co-owner owns the half nearest 3. Proof to the contrary
to him)
It is a special kind of forced co- CONFLICT BETWEEN A TITLE AND AN
ownership EXTERIOR SIGN - TITLE PREVAILS

RULES THAT GOVERN EASEMENT OF PARTY Art. 660. It is understood that there is an
WALL: exterior sign, contrary to the easement of
1. Civil code on easement party wall:
2. Local ordinances and customs (1) Whenever in the dividing wall of
3. Civil code on co-ownership buildings there is a window or
opening;
Art. 659. The existence of an easement of (2) Whenever the dividing wall is,
party wall is presumed, unless there is a on one side, straight and plumb on
title, or exterior sign, or proof to the all its facement, and on the other, it
contrary: has similar conditions on the upper
part, but the lower part slants or
projects outward;

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(3) Whenever the entire wall is built


within the boundaries of one of the *The seven enumerated signs are not
estates; limitative
(4) Whenever the dividing wall
bears the burden of the binding Art. 661. Ditches or drains opened
beams, floors and roof frame of one between two estates are also presumed as
of the buildings, but not those of common to both, if there is no title or sign
the others; showing the contrary.
(5) Whenever the dividing wall There is a sign contrary to the part-
between courtyards, gardens, and ownership whenever the earth or dirt
tenements is constructed in such a removed to open the ditch or to clean it is
way that the coping sheds the only on one side thereof, in which case the
water upon only one of the estates; ownership of the ditch shall belong
(6) Whenever the dividing wall, exclusively to the owner of the land having
being built of masonry, has this exterior sign in its favor. (574)
stepping stones, which at certain
intervals project from the surface PARTY DITCHES OR DRAINS – the
on one side only, but not on the presumption of party wall applies to ditches
other; and drains opened between two estates
(7) Whenever lands inclosed by
fences or live hedges adjoin others REBUTTABLE PRESUMPTION – the
which are not inclosed. presumption is also rebuttable (juris
In all these cases, the ownership of the tantum) Thus if a deposit of dirt is on one
walls, fences or hedges shall be deemed to side alone, the owner of that side is
belong exclusively to the owner of the considered the owner of the ditch
property or tenement which has in its Note: some scrupulous persons however
favor the presumption based on any one of deposit dirt voluntarily not on their side,
these signs. (573) but on the opposite side of ditch

EXTERIOR SIGNS NEGATIVING THE *If there are party walls there are also
EXISTENCE OF A PARTY WALL – the article common ditches or drains. When theses
enumerated the exterior signs rebutting the ditches or drains are located between the
presumption of there being an easement of two estates belonging to different owners,
party wall (thus, instead of a party wall we they are presumed to be common, unless
have a wall exclusively owned by a single there is a title or sign to the contrary. If with
owner) title, belongs to the owner. If no title,
determined by presence of exterior signs
CONFLICTING EXTERIOR SIGNS:
If one owner has signs in his favour, and Art. 662. The cost of repairs and
some against him, they generally cancel construction of party walls and the
each other, unless it can be shown from the maintenance of fences, live hedges,
purpose of the wall that it had been made ditches, and drains owned in common,
for the exclusive benefit of one shall be borne by all the owners of the

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lands or tenements having the party wall land. However, the wall is to be
in their favor, in proportion to the right of removed to some other place, there
each. need not be renunciation of the land
Nevertheless, any owner may exempt originally used
himself from contributing to this charge by
renouncing his part-ownership, except
when the party wall supports a building Art. 663. If the owner of a building,
belonging to him. (575) supported by a party wall desires to
demolish the building, he may also
*Proportionate contribution to repairs and renounce his part-ownership of the wall,
construction but the cost of all repairs and work
necessary to prevent any damage which
WHEN RENUNCIATION CAN BE MADE: the demolition may cause to the party
It can be made, UNLESS: wall, on this occasion only, shall be borne
1. The repair had already been by him. (576)
contracted for and made (for here,
he would still be liable to the *Indemnification must be made for
repairer) damages (simultaneous damages or those
2. He still uses the wall (as when it incurred immediately after and because of,
supports his building) (If building the demolition, not those which may occur
demolished, renunciation can be later on.
made

REQUISITES FOR THE RENUNCIATION OF Art. 664. Every owner may increase the
THE SHARES: height of the party wall, doing at his own
1. Renunciation must be TOTAL expense and paying for any damage which
2. It must be made voluntarily may be caused by the work, even though
3. Must be made before expenses are such damage be temporary.
incurred
4. Made with the implied condition The expenses of maintaining the wall in
that the owner should pay for the the part newly raised or deepened at its
repairs. Thus if repairs are not foundation shall also be paid for by him;
made, it is as if no renunciation had and, in addition, the indemnity for the
been done, and the co-ownership increased expenses which may be
remains. Thus also if the neglect to necessary for the preservation of the party
make the repairs makes the wall dall wall by reason of the greater height or
co-ownership remains with the depth which has been given it.
felled or destroyed wall, each owner
being entitled to his share of If the party wall cannot bear the increased
materials height, the owner desiring to raise it shall
5. Must be of both the share in the be obliged to reconstruct it at his own
wall and the share in the land, for expense and, if for this purpose it be
the wall cannot be used without the necessary to make it thicker, he shall give

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the space required from his own land. FOR EXAMPLE, A PAID THE INCREASED
(577) HEIGHT OF B, WOULD HE HAVE THE RIGHT
TO THE INCREASED WALL?
INCREASING THE HEIGHT OF A PARTY Yes since he paid for it.
WALL:
1. Must do so at his own expense SECTION 5. - Easement of Light and View
2. Must pay necessary damages
caused, even if the damage be Art. 667. No part-owner may, without the
temporary consent of the others, open through the
3. Must bear the costs of maintenance party wall any window or aperture of any
of the portion ADDED kind. (580)
4. Must pay for the increased cost of
preservation EASEMENT OF LIGHT – jus luminum (as in
5. Must reconstruct if original wall the case of small windows not more than
cannot bear the increased height 30cm square, at the height of the ceiling
6. Must give additional space joist, the purpose of which is to admit light
necessary, if wall is to be thickened but not view

*He will hoever be the EXCLUSIVE OWNER EASEMENT OF VIEW – servidumbre


of the ADDITIONS prospectus as in the case of full or regular
windows overlooking the adjoining estate.
Art. 665. The other owners who have not Easement of light is automatically included.
contributed in giving increased height,
depth or thickness to the wall may, Is LV a continuous easement?
nevertheless, acquire the right of part- as in the case of full or regular windows
ownership therein, by paying overlooking the adjoining estate. Easement
proportionally the value of the work at the of light is automatically included.
time of the acquisition and of the land
used for its increased thickness. (578a) Is LV a continuous easement?
Art. 666. Every part-owner of a party wall Yes. It may be acquired by prescription.
may use it in proportion to the right he
may have in the co-ownership, without PROHIBITION TO MAKE AN OPENING THRU
interfering with the common and THE PARTY WALL:
respective uses by the other co-owners. EXAMPLE: A and B are co-owners of a party
(579a) wall. A can not make an opening on the wall
without the permission of B. If A were
WHICH IS THE DOMINANT AND THE allowd to do this (without B’s consent),
SERVIENT OWNER? there is a distinct possibility that A will later
They are both dominant and servient claim the whole wall as his is view of the
owners. exterior sign. Moreover, it is as if A were
allowed to use the WHOLE thickness of the
wall.

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SUPPOSE IN THE EXAMPLE, A MAKES party wall on December 9, 2002. In


OPENING WITHOUT B’S CONSENT, WHAT 2003, may B still close the opening?
WILL BE B’S RIGHT? Yes, for no easement has yet
B can order that the opening be closed been acquired by A.
unless of course a sufficient time for b. In the preceeding example, can B
prescription has elapsed – 10 years from close the window on December 10,
the opening of the window 2012?
No more, for more than 10
Art. 668. The period of prescription for the years have elapsed; and A has
acquisition of an easement of light and already acquired the easement
view shall be counted: c. A and B are adjoining owners. In
(1) From the time of the opening of 2002, A made an opening in his own
the window, if it is through a party wall. In 2007, A makes a formal
wall; or notarial demand on B prohibiting
(2) From the time of the formal him to obstruct the view. In 2013,
prohibition upon the proprietor of may B still setup an obstruction?
the adjoining land or tenement, if Yes, because although more
the window is through a wall on the than 10 years had elapsed since the
dominant estate. (n) opening of the window, still less
than 10 years have elapsed since the
POSITIVE EASEMENT – if the window is thru notarial prohibition. Remember that
a party wall. Therefore, the prescription A is trying to obtain is a negative
commences from the time the window is easement. Indeed no true easement
opened has yet been acquired. No existe
*Mere opening of the window does not verdadera servidumbre existe el
create the easement; it is only when after a derecho de impeder su uso – there is
sufficient lapse of time the window still no true servitude or easement so
remains open, that the easement of light long as the right to prevent its use
and view is created exists.
*extending on the adjoining land
Art. 669. When the distances in Article 670
NEGATIVE EASEMENT – if the window is are not observed, the owner of a wall
thru one’s own wall of the dominant estate. which is not party wall, adjoining a
Therefore, the time for the period of tenement or piece of land belonging to
prescription should begin from the time of another, can make in it openings to admit
notarial prohibition upon the adjoining light at the height of the ceiling joints or
owner. A public instrument which conforms immediately under the ceiling, and of the
to form and substance. size of thirty centimeters square, and, in
every case, with an iron grating imbedded
ILLUSTRATIVE PROBLEMS: in the wall and with a wire screen.
a. A and B own a party wall. A, without Nevertheless, the owner of the tenement
B’s consent, made an opening in the or property adjoining the wall in which the
openings are made can close them should

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he acquire part-ownership thereof, if there b. If the wall becomes a PARTY WALL,


be no stipulation to the contrary. he can close the window, unless
He can also obstruct them by constructing there is a stipulation to the contrary
a building on his land or by raising a wall
thereon contiguous to that having such *May be acquired by prescription
openings, unless an easement of light has
been acquired. (581a) Art. 670. No windows, apertures,
balconies, or other similar projections
REGULAR – light and view which afford a direct view upon or towards
IRREGULAR – light only an adjoining land or tenement can be
made, without leaving a distance of two
meters between the wall in which they are
RESTRICTED WINDOWS – for light not view made and such contiguous property.
Neither can side or oblique views upon or
RESTRICTION THEMSELVES: towards such conterminous property be
1. Maximum sie – 30cm square had, unless there be a distance of sixty
2. There must be an iron grating centimeters.
imbedded in the wall The nonobservance of these distances
3. There must be a wire screen does not give rise to prescription. (582a)
4. The opening must be at the height
of the ceiling joists or immediately Art. 671. The distance referred to in the
under the ceiling preceding article shall be measured in
cases of direct views from the outer line of
RULE WHEN PROPER DISTANCES ARE the wall when the openings do not project,
OBSERVED - When the distances are as from the outer line of the latter when they
given in Art 670, bigger or regular windows do, and in cases of oblique view from the
may be opened without the restrictions dividing line between the two properties.
given above. (583)

SANCTIONS IN CASE OF VIOLATIONS – A RULES FOR REGULAR WINDOWS:


HAS MADE RESTRICTED WINDOWS ON HIS a. Art 670 and 671 deal with regular,
OWN WALL FOR LIGHT. WHAT CAN THE full windows (as distinguished from
ADJOINING OR ABUTTING OWNER DO? restricted windows referred to in Art
a. He can obstruct the light 669)
1. By constructing a higher building b. Regular windows can be opened
on his own land provided that the proper distances
2. Or by raising a blocking wall (in are followed
both cases he cannot make the
obstruction if the easement of PROPER DISTANCES:
light has been acquired – 10 a. For windows having direct (face to
years after notarial prohibition face) views, observe at least 2
meters distance between the wall

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having the windows and the prescribe? Certainly not, although the
boundary line contrary view has been expressed by a
b. For windows having side or oblique member of the Code Commission, who has
views, (that is, one must turn his opined that the ruling in Soriano, is wrong
head to the right or left to view the and precisely to reverse said rule is the
adjoining land), observe a distance purpose of the sentence, the non-
of atleast 60cm between the observance of the distances does not give
boundary line and nearest edge of rise to prescription.
the window
NOTE: The distance is shorter for RULE AS TO TERRACES:
oblique or sideviews because of the Art 670 applies to terraces, if there are
difficulty of overlooking. railings (since railings are protection to
viewers), but not if there are no railings
BUILDING RIGHT ON BOUNDARY LINE: (since the lack of protection makes difficult
It is permissible to build even up to the their use as windows)
boundary line provided that NO regular
windows are opened WHEN ARTICLE DOES NOT APPLY: does not
apply to the case in 672.
PROBLEMS:
1. On his wall, one meter away from Art. 672. The provisions of Article 670 are
the boundary line, A opened regular not applicable to buildings separated by a
windows with direct views. May A public way or alley, which is not less than
be ordered to close them, at any three meters wide, subject to special
time? regulations and local ordinances. (584a)
ANSWER: A may be ordered to close Art. 673. Whenever by any title a right has
them, provided that the adjoining been acquired to have direct views,
owner makes the demand for the balconies or belvederes overlooking an
closure within the period of 10 years adjoining property, the owner of the
from the opening of the window, servient estate cannot build thereon at less
otherwise his right of closure will be than a distance of three meters to be
deemed prescribed. measured in the manner provided in
Article 671. Any stipulation permitting
WHAT IS MEANT BY NON OBSERVANCE OF distances less than those prescribed in
THESE DISTANCES DOES NOT GIVE RISE TO Article 670 is void. (585a)
PRESCRIPTION?
This merely means that the mere non- JQ’S OPINION: It includes water tank
observance of theses distances does not BELVERDES – Italian, Fairview, veranda
five rise to prescription because the thing is
a negative easement, a notarial prohibition If the distance is less than 3 meters – void
is still required before the period of More than 3 meters – valid
prescription will commence to run. Does
the clause mean that the right to demand RULE WHEN A RIGHT HAS BEEN ACQUIRED
the closure of violating windows never TO HAVE A DIRECT VIEW:

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it is a true servitude unlike 669 and 670 *Even without the easement, we still have
which do not really refer to easements the obligation for the rainwater to fall on
since both owners are prohibited. our own land

EXAMPLES: RESTRICTIONS WITH RESPECT TO


A and B are adoining owners. By virtue of a EASEMENT OF DRAINAGE OF BUILDINGS:
contract, B agreed to give A an easement of 1. A person should let rain water FALL
view over his (B’s) land. In the absence of on his own land, and not on the
any stipulation about DISTANCE, B (the adjacent land, even if he be the co-
servient owner) cannot construct a building owner of the latter
on his own land at less a distance of 3m 2. Rain water must be COLLECTED
from the boundary line (computed instead of being allowed to drift to
according to 671). However, the distance the adjacent of lower land
may be increased or decreased provided
that the MINIMUM distances, prescribed in EMILIO V PAREDES:
670 are observed. The same may be said of FACTS: When the lot of Emilio was
an easement of view acquired by registered under the Torrens system, there
prescription. was an express recognition in the Decree of
Registration that Emilio’s lot was subject to
APPLICABILITY OF 673 TO EASEMENTS an easemtn of drainage over a portion of
OBTAINED UNDER 624. said lot 8 ½ meters long, and one meter
Article 673 even when the easement has wide so that rain water coming from the
been acquired under 624. Thus if an estate roof of a building to be constructed on the
has an easement of light and view under adjoining lot would fall into the land of
624, the neighbour cannot construct on his Emilio. The easement was thus in favor of
lot unless he observes the 3m rule. the adjoining lot belonging to Paredes.
Later, Paredes constructed a building with a
SECTION 6. - Drainage of Buildings roof protruding over the lot of Emilio.

Art. 674. The owner of a building shall be ISSUE: Did Paredes hav a right to construct
obliged to construct its roof or covering in a building with a roof protruding over
such manner that the rain water shall fall Emilio’s lot in the dimensions mentioned in
on his own land or on a street or public the Decree of Registration
place, and not on the land of his neighbor,
even though the adjacent land may belong HELD: No, Paredes had no such right to
to two or more persons, one of whom is construct a protruding roof. The
the owner of the roof. Even if it should fall encumbrance is not the roof itself but the
on his own land, the owner shall be falling of the rainwater inside Emilio’s land.
obliged to collect the water in such a way The distances prescribed in the Decree
as not to cause damage to the adjacent therefore did not refer to the protrusion of
land or tenement. (586a) the width and length of the roof, but to the
distance of the rainwater falling on the

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adjacent lot. The roof of Paredes must the house itself to the rain water collected
therefore be reconstructed. thereon, the establishment of an easement
of drainage can be demanded, giving an
NOT REALLY AN EASEMENT: outlet to the water at the point of the
Article 674 does not really create an contiguous lands or tenements where its
easement, for it merely regulates the use of egress may be easiest, and establishing a
a person’s property insofar as rainwater is conduit for the drainage in such manner as
concerned to cause the least damage to the servient
estate, after payment of the property
Art. 675. The owner of a tenement or a indemnity. (583)
piece of land, subject to the easement of
receiving water falling from roofs, may OUTLET OF RAIN WATER THROUGH A
build in such manner as to receive the SURROUNDING HOUSES
water upon his own roof or give it another This is similar to the compulsory easement
outlet in accordance with local ordinances of right of way
or customs, and in such a way as not to
cause any nuisance or damage whatever to CONDITIONS:
the dominant estate. (587) 1. Because of enclosure, there is no
adequate outlet for rain water
WHAT IF AN WATER CANNOT BE 2. The outlet must be at the point of
CONTAINED, WHAT WILL YOU DO? easiest egress (going out)
Have an outlet. 3. Least possible damage
4. Payment of proper indemnity
IF IT TRAVERSE ON ANOTHER ESTATE?
It is allowed via demand and to pay for SECTION 7. - Intermediate Distances
indemnity and should be done as the least and Works for Certain Constructions and
prejudicial to the servient estate. Plantings

*If it is imputable to one owner, it is not a Art. 677. No constructions can be built or
legal easement anymore but a voluntary plantings made near fortified places or
one fortresses without compliance with the
conditions required in special laws,
RULE WHEN A TENEMENT OR LAND IS ordinances, and regulations relating
SUBJECT TO THE EASEMENT OF RECEIVING thereto. (589)
WATER FALLING FROM ROOFS
The easement referred to in Art 676 may be FORTIFIED PLACES – place established by
complied with by following art 675. the government for security purposes

This article may also apply to easements EXAMPLES:


Malacanang, Fort Santiago, Fort Magsaysay,
Art. 676. Whenever the yard or court of a Camp Aguinaldo, Airport, Palace
house is surrounded by other houses, and
it is not possible to give an outlet through

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REMEDY OF 677: Government should come by the ordinances or customs of the place,
up with laws and regulations in matters and, in the absence thereof, at a distance
pertaining to fortresses of at least two meters from the dividing
line of the estates if tall trees are planted
Art. 678. No person shall build any and at a distance of at least fifty
aqueduct, well, sewer, furnace, forge, centimeters if shrubs or small trees are
chimney, stable, depository of corrosive planted.
substances, machinery, or factory which by Every landowner shall have the right to
reason of its nature or products is demand that trees hereafter planted at a
dangerous or noxious, without observing shorter distance from his land or tenement
the distances prescribed by the regulations be uprooted.
and customs of the place, and without The provisions of this article also apply to
making the necessary protective works, trees which have grown spontaneously.
subject, in regard to the manner thereof, (591a)
to the conditions prescribed by such
regulations. These prohibitions cannot be *Easement because they prohibit property
altered or renounced by stipulation on the owners (limitation)
part of the adjoining proprietors.
In the absence of regulations, such RULES WITH RESPECT TO THE PLANTING
precautions shall be taken as may be OF TREES:
considered necessary, in order to avoid Regarding distances, follow ordinances then
any damage to the neighboring lands or customs. If neither, distances must be
tenements. (590a) observed:
1. Tall trees – 2 meters from boundary
*Environmental laws and precautionary line to center of the tree
measures 2. Small trees or shrubs – 50cm from
boundary line to center of tree or
CONSTRUCTION OF AQUEDUCT, WELLS shrub
SEWERS, ETC
Follow the distances prescribed by the REMEDY FOR VIOLATION – demand
regulations and customs, if there be any, uprooting of the tree or shrub
otherwise take precautions
Art. 680. If the branches of any tree should
NO WAIVER – no waiver or alteration by extend over a neighboring estate,
stipulation is allowed, REASON: public tenement, garden or yard, the owner of
safety the latter shall have the right to demand
that they be cut off insofar as they may
LIABILITY FOR DAMAGES – in case of spread over his property, and, if it be the
violation, liable for damages roots of a neighboring tree which should
penetrate into the land of another, the
Art. 679. No trees shall be planted near a latter may cut them off himself within his
tenement or piece of land belonging to property. (592)
another except at the distance authorized

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RULES REGARDING INTRUSIONS OR B. IN THE SAME CASE, BECAUSE OF


EXTENSIONS OF BRANCHES AND ROOTS: QUARELL BETWEEN A AND B,
1. Branches – adjacent owner has the UNRELATED TO TREES, B CUTS OFF
right to DEMAND that they be cut THE BRANCES IN SO FAR AS THEY
off EXTEND TO HIS LAND, DOES A HAV
2. Roots – he may CUT them off A RIGHT OF ACTION AGAINST B?
himself B is liable for cutting off the
branches. What he should have
PRESCRIPTION: done was to make a demand and
1. Of the right to demand the cutting not just take the law into his own
off of the branches – this does NOT hands. Demand first.
prescribe if tolerated by the owner;
if the demand is made, prescriptions C. WOULD YOUR ANSWER BE
runs from the date of said demand DIFFERENT IF, INSTEAD OF CUTTING
2. Of the right to cut off the roots – OFF THE PROTRUDING BRANCHES,
this is imprescriptible unless a B HAD CUT OFF THE ROOTS OF THE
notarial prohibition is made TREES WHICH PENETRATED INTO HI
SLAND, WITH THE SAME RESULT
RIGHT OF THE OWNER OF THE TREE: The THAT THE TREE STOPPED BEARING
owner of the tree even if the branches and FRUITS? EXPLAIN.
roots have invaded the adjacent land can In the case of the roots, B had the
cut down the tree himself for he owns the right to cut them since it is on his
tree own land.

Art. 681. Fruits naturally falling upon SECTION 8. - Easement Against Nuisance
adjacent land belong to the owner of said (n)
land. (n)
Art. 682. Every building or piece of land is
*NATURALLY falling, not by acts of man subject to the easement which prohibits
*Mode of acquisition by operation of law the proprietor or possessor from
EXAMPLES: committing nuisance through noise,
X IS THE OWNER OF A GROVE OF MANGO jarring, offensive odor, smoke, heat, dust,
TREES, SOME OF THE BRANCHES IF WHICH water, glare and other causes.
EXTEND OVER THE LAND OF B.
REASON FOR PROHIBITING A NUISANCE: A
A. DOES B HAVE THE RIGHT TO nuisance, among others, annoys or offends
GATHER THE MANGO FRUITS ON the senses and it should therefore be
THE BRANCHES THAT EXTEND OVER prohibited
THE LAND OF B.
No, B has a right to the fruits that SERVIENT AND DOMINANT ESTATES?
have NOT YET naturally fallen on his The proprietor or possessor of the building
land or piece of land, who commits the nuisance
thru noise, jarring, offensive odor, etc is

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SERVIENT in an easement against nuisance; any adjacent land or building of sufficient


in another sense, the building or land itself lateral or subjacent support.
is the SERVIENT ESTATE, since the easement
is inherent in every building or land. *Not limited to owner

WHO IS THE DOMINANT IN AN EASEMENT *Support is lateral when both land


AGAINST NUISANCE? supported and supporting land are on the
The general public or anybody injured by SAME PLANE
the nuisance.
*Subjaent land abover supporting land –
WHAT ARE THE RIGHTS OF THE DOMINANT SUBJACENT LAND
ESTATE?
If the nuisance is a public nuisance, the THE EASEMENT OF LATERAL AND
remedies are: SUBJACETN SUPPORT IS NOT A TRUE
a. A prosecution under the Penal Code EASEMENT – it is again doubtful whether
b. Civil action the easement for lateral or subjacent
c. Abatement, without judicial support are true easements for, while they
proceedings are restrictions on ownership, still even
If the nuisance is a private nuisance, the without a prohibition by the dominant
remedies are: estate, the elimination of such support
a. Civil action would be unlawful.
b. Abatement without judicial
proceedings WHAT IS THE OBLIGATION OF THE OWNER
OF THE ESTATE?
Art. 683. Subject to zoning, health, police Send notices to all owners, neighbours, to
and other laws and regulations, factories protect themselves. If it does not agree,
and shops may be maintained provided injunction.
the least possible annoyance is caused to
the neighborhood. REMEDIES FOR INFRACTION – damages

*This is a misplaced provision EXAMPLE:


1. Of lateral support: While a person
*Even glare is a nuisance, halogen light is a may excavate on his own land, he
nuisance cannot do so if by such action,
adjacent buildings would collapse or
SECTION 9. - Lateral and Subjacent Support adjacent lands crumble.
(n) 2. Of subjacent support: A owns a
parcel of land with a hous, but
*Prohibition against excavations underneath, the soil is being used by
B in connection with a tunnel. B
Sec. 684. No proprietor shall make such must not undermine the support of
excavations upon his land as to deprive the house by building the tunnel
very close underneath the house.

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WHAT KIND OF EASEMENT MAY CAUSE


INJURY TO USUFRUCTUARY?
Art. 685. Any stipulation or testamentary Impositipon of perpetual or permanent
provision allowing excavations that cause easement
danger to an adjacent land or building shall
be void. WHAT ARE THE LIMITATIONS OF
VOLUNTARY EASEMENTS?
REASON: A person is protected even 1. Not prejudicial
against his own folly, in the interest of 2. Not contrary to public morals, order,
public safety policy, etc

Art. 686. The legal easement of lateral and CONSENT ON LEGAL EASEMENT IS NOT
subjacent support is not only for buildings REQUIRED BECAUSE IT IS IMPOSED BY
standing at the time the excavations are LAW.
made but also for constructions that may
be erected. CHAPTER 3
VOLUNTARY EASEMENTS
*Prophetic, futuristic
Art. 688. Every owner of a tenement or
Art. 687. Any proprietor intending to make piece of land may establish thereon the
any excavation contemplated in the three easements which he may deem suitable,
preceding articles shall notify all owners of and in the manner and form which he may
adjacent lands. deem best, provided he does not
contravene the laws, public policy or public
NOTIFICATION RE INTENDED order. (594)
EXCAVATIONS:
a. Notice is not required, if there is *VOLUNTARY EASEMENT – established by
actual knowledge of the excavation.. agreement of the parties, may be done only
otherwise, notice is mandatory by the owner or with authority from the
b. Even if there be notice, the owner. It is an act of ownership.
excavation should not deprive other
owners of lateral or subjacent WHO ACTS FOR THE DOMINANT ESTATE?
support. This is true even if the The person to act for the dominant estate
other consent. must be the OWNER or somebody else, in
c. Notice is required to enable the name and with authority of the
adjoining owners to take proper OWNER.
precautions
Art. 689. The owner of a tenement or piece
MAY A USUFRUCTUARY OR A POSSESSOR of land, the usufruct of which belongs to
IN GOOD FAITH MAKE EASEMENT? another, may impose thereon, without the
No. consent of the usufructuary, any
servitudes which will not injure the right of
usufruct. (595)

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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 may be established thereon
without the consent of both owners. (596)
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)
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)

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.

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NUISANCE Injures or endangers the health or safety of


others.
Art. 694. A nuisance is any act, omission, Example:
establishment, business, condition of property, Safety:
or anything else which: Manhole
Firework factories
(1) Injures or endangers the health or safety Dangerous excavations
of others; or Health:
(2) Annoys or offends the senses; or Factory of rugby
(3) Shocks, defies or disregards decency or Shabu laboratory
morality; or - Is considered nuisance because its
(4) Obstructs or interferes with the free existence, the use of such would
passage of any public highway or street, or any endanger the life of other people
body of water; or
(5) Hinders or impairs the use of property. Annoys or offends the senses
What is the test: In order to be considered as a
---------------------------------------------------------------- nuisance which causes annoyance or offense to
DIFFERENTIATE TRESPASS FROM NUISANCE senses, the effect produced to a person is under
*In Trespass, there is an entry to one’s property normal circumstances and condition and not
that impairs the use of the property while in by their effect upon over-sensitive reactions.
Nuisance, entry to one’s property is not
necessary because it is the use of one’s Example:
property which cause injury to another Cooking of “tuyo” in a squatters area and in an
property. In trespass, the injury is immediate exclusive subdivision. Which is considered a
and direct while in nuisance, the injury is nuisance?
consequential. Under the circumstances, the cooking
---------------------------------------------------------------- of tuyo in an exclusive subdivision may be
considered a nuisance considering the course of
lifestyle established in such place in distinction
with the cooking in the squatters area as they
WHAT ARE THE CAUSES OR SOURCES OF are already immune to it.
NUISANCE?
(1) Injures or endangers the health or safety of In fine, to consider it as annoying or offending
others; or to senses, it is made dependent upon the
(2) Annoys or offends the senses; or normal condition and circumstances of the
(3) Shocks, defies or disregards decency or people experiencing it.
morality; or
(4) Obstructs or interferes with the free *Bumbay smell, still falls on annoying but you
passage of any public highway or street, or any cannot abate the person. Hehe.
body of water; or
(5) Hinders or impairs the use of property. *Noise
Test: it must be deafening, loud and excessive
which would produce actual physical discomfort
Etymology of nuisance: and annoyance to a person of ordinary
Derived from the French word nuire or Latin sensibilities, rendering adjacent property less
word nocumentum, which means to harm or to comfortable and valuable.
injure.

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PROPERTY REVIEWER

"strikes at the personal liberty of the individual


guaranteed and jealously guarded by the
Constitution." To be candid about it, the oft-
Shocks, defies or disregards decency or quoted American maxim that "you cannot
morality legislate morality" is ultimately illegitimate as a
matter of law, since as explained by Calabresi,
Decency and Morality that phrase is more accurately interpreted as
DECENCY is propriety of behavior or demeanor meaning that efforts to legislate morality will
shown by respect and compliance with fail if they are widely at variance with public
recognized notions of modesty and delicacy. attitudes about right and wrong.
MORALITY is the observance of what is right
and the avoidance of what is evil. Even as the implementation of moral norms
remains an indispensable complement to
ARE MOTELS PER SE NUISANCE? governance, that prerogative is hardly absolute,
Generally, motels are not nuisance but if they especially in the face of the norms of due
are conducted in manner contrary to public process of liberty. And while the tension may
policy or it go beyond the limitations of law, often be left to the courts to relieve, it is
they will be regarded as nuisance. possible for the government to avoid the
constitutional conflict by employing more
Classmates, Pegasus, not nuisance because they judicious, less drastic means to promote
are legal but it is only their front. morality.

Case: WE CANNOT LEGISLATE MORALITY.


WHITE LIGHT CORPORATION, TITANIUM
CORPORATION and STA. MESA TOURIST & Obstructs or interferes with the free passage
DEVELOPMENT CORPORATION, Petitioners, of any public highway or street, or any body of
vs. water.
CITY OF MANILA, represented by DE CASTRO, *Water – is always owned by the State
MAYOR ALFREDO S. LIM, Respondent.
Example:
FACTS: City Mayor Alfredo Lim signed into a law Sidewalk vendor- obstruct passageway
an ordinance which prohibits short time for pedestrian
admission in hotels, motels, lodging houses,
pension houses and similar establishments in Squatters on estero- obstruct the
the City of Manila. The petitioner filed a passageway of water
complaint contending that the ordinance
directly affects their business interests as Billboards- 2 point of views
operators of drive-in-hotels and motels in Adverstisers: not a nuisance
Manila. Being such, it must be declared invalid Under the Building Code: it must not
an unconstitutional as it constitute an invalid cause a hindrance
exercise of police power. Pink urinals are also nuisance
Terminals
ISSUE: WON the ordinace is a valid exercise of
police power Hinders or impairs the use of property.
(PRIVATE PROPERTY)
HELD: The ordinance is NOT valid. The SC
upheld the decision of the RTC. The ordinance

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----------------------------------------------------------------
DISTINCTION BETWEEN PARAGRAPH 4 AND 5: Kinds of Nuisance According to its nature:
Paragraph 4 includes public highways and 1. Nuisance Per Se (Nuisance at law)- the
bodies of waters owned by the State. Paragraph kind of nuisance which is always a
5 are properties owned by private individual. nuisance. By its nature it is always a
---------------------------------------------------------------- nuisance at all times and under any
circumstances regardless of location or
*Procession or parade Is NOT a nuisance but if surroundings.
they are disturbing, yes. 2. Nuisance Per Accidens (Nuisance in
fact) - the kind of nuisance by reason of
*Greetings of government official – depends location, surrounding or in the manner
upon normal circumstances, generally NOT. it is conducted or managed.

*Internet café with cybersex, nuisance HOW WOULD YOU KNOW IF IT IS A PUBLIC OR
PRIVATE NUISANCE?
Art. 695. Nuisance is either public or private. If it affects public place even if it is less in
A public nuisance affects a community or number
neighborhood or any considerable number of
persons, although the extent of the *Lawful business may become a nuisance.
annoyance, danger or damage upon Plastic factory in residential area. Nuisance.
individuals may be unequal. A private nuisance
is one that is not included in the foregoing
definition.

----------------------------------------------------------------
KINDS OF NUISANCE ACCORDING TO THEIR Distinguish Nuisance per se from nuisance
SCOPE OF INJURY: accidens:
1. Public Nuisance (common) - is one
which affects a community or Nuisance per se is considered a nuisance on the
neighborhood or considerable number basis of its nature. It is at all times considered as
of persons. such regardless of the location, manner it is
2. Private Nuisance- is one which affects conducted or managed or its surrounding. On
an individual or few persons only the other hand, nuisance per accidens is a
nuisance that is initially not considered as a
IS THE NUMBER OF PERSONS AFFECTED THE nuisance, but because of its location, manner it
BASIS OF CLASSIFYING THE NUISANCE AS was conducted or its surrounding
PUBLIC OR PRIVATE? circumstances, it is classified as a nuisance.
To qualify whether it is a public or private ----------------------------------------------------------------
nuisance is to consider the over-all effect of the
nuisance in the community. Being so, it Example:
categorically means that even if the nuisance House of Prostitution: Nuisance Per se
may seem to effect only one person but if any - Regardless of its location, it is a
person who will come to the place will be nuisance per se because at all times, it
adversely affected, it is a public nuisance not a shocks, defies or disregard decency and
private one, notwithstanding the effect of it to morality.
only one person.

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Piggery: the person mainting the supposed nuisance


When located in a residential house, it is a that it is a nuisance and affect other person or
nuisance per accidens because it is unusual to property and to decide whether it is a nuisance
put up a piggery in a residential house as it will or not is to be placed under the proper
annoy sense but if located in a province away authority.
from a populated place is not a nuisance.
Can a lawful business be a nuisance?
What kind of nuisance is subject to summary Yes. Whether a lawful business may be
abatement? considered as a nuisance or not is dependent on
*summary abatement means no judicial the surrounding circumstances. If the conduct
proceeding of the business causes grave inconveniences
Only nuisance per se may be summarily abated and discomfort to others, then it is a nuisance
because its effect is immediate and the safety and must be abated regardless of its legality.
of the person or property is immediately
affected. What is the Attractive Nuisance Doctrine:
Only nuisance per se – based on One who maintains on his estate or premise an
necessity attractive nuisance without exercising due care
to prevent children from playing therewith or
*Nuisance per accidens – notice and hearing resorting thereto is liable to a child of tender
years who is injured even if the child is
HOW WOULD YOU KNOW IF IT IS A NUISANCE technically trespasser in the premises.
PER SE OR ACCIDENS?
Proof or evidence of existence *an ATTRACTIVE NUISANCE is any dangerous
instrumentality which is likely to attract children
How is nuisance accidens abated? at play
Unlike nuisance per se which may be summarily
abated, of the nuisance is classified as nuisance EXAMPLES:
per accidens may only be abated following the 1. Electricfan
principle of due process. There must be a 2. Switch
reasonable notice to the person alleged to be 3. Sand
maintaining or doing it and a hearing before a 4. Lumber
tribunal.
WHAT IS THE REASON FOR THIS DOCTRINE?
Why is it that only Nuisance per se can be Attracts or entices the kid to approach and play
summarily abated when both nuisance per se PER SE – res ipso loquitor
and nuisance per accidens affect or impair the
use of property and safety of person?
This is so because, the nuisance per se is NOTE: IN OUR JURISDICTION, BODIES OF
considered nuisance at all times and need not WATER ARE NOT CONSIDERED NUISANCE.
to consider its location, manner it was
conducted or its surrounding circumstances and WHAT IS THE LIABILITY OF THE ONE WHO
to under go the twin process of due process will MADE THE NUISANCE?
just put the person or property more in danger, Liable for any resulting damages. Lessee
while nuisance per accidens are just maintained it, he is also solidarilty liable.
accidentally considered as nuisance because of
its location, manner it was conducted or
managed that is why it is imperative to inform CASE:

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HIDALGO ENTERPRISES, INC., petitioner, vs. negligence precluding recovery, because they
GUILLERMO BALANDAN, ANSELMA ANILA and left for Manila on that unlucky day leaving their
THE COURT OF APPEALS, respondents. son under the care of no responsible individual -
needs no further discussion.
FACTS: Hidalgo Enterprises, Inc. "was the owner
of an ice-plant factory in the City of San Pablo, The doctrine may be stated, in short, as follows:
Laguna, in whose premises were installed two One who maintains on his premises dangerous
tanks full of water, nine feet deep, for cooling instrumentalities or appliances of a character
purposes of its engine. While the factory likely to attract children in play, and who fails to
compound was surrounded with fence, the exercise ordinary care to prevent children from
tanks themselves were not provided with any playing therewith or resorting thereto, is liable
kind of fence or top covers. to a child of tender years who is injured
thereby, even if the child is technically a
Mario Balandan, a boy barely 8 years old, while trespasser in the premises.
playing with and in company of other boys of
his age, entered the factory premises through The principal reason for the doctrine is that the
the gate, to take a bath in one of said tanks; and condition or appliance in question although its
while thus bathing, Mario sank to the bottom of danger is apparent to those of age, is so
the tank, only to be fished out later, already a enticing or alluring to children of tender years
cadaver, having died of `asphyxia secondary to as to induce them to approach, get on or use it,
drowning. and this attractiveness is an implied invitation
to such children.
The parents of the son sought for damages.
Now, is a swimming pool or water tank an
ISSUE: WON the tanks maintained is an instrumentality or appliance likely to attract
attractive nuisance little children in play? In other words is the body
of water an attractive nuisance? The great
HELD: "Nature has created streams, lakes and majority of American decisions say no.
pools which attract children. Lurking in their
waters is always the danger of drowning. "The attractive nuisance doctrine generally is
Against this danger children are early instructed not applicable to bodies of water, artificial as
so that they are sufficiently presumed to know well as natural, in the absence of some unusual
the danger; and if the owner of private property condition or artificial feature other than the
creates an artificial pool on his own property, mere water and its location."
merely duplicating the work of nature without
adding any new danger, . . . (he) is not liable Art. 696. Every successive owner or possessor
because of having created an `attractive of property who fails or refuses to abate a
nuisance.' Anderson vs. Reith-Riley Const. Co., nuisance in that property started by a former
N. E., 2nd, 184, 185; 184, 185; 112 Ind. App., owner or possessor is liable therefor in the
170. same manner as the one who created it.

Therefore, as petitioner's tanks are not What is the duty of the subsequent owner or
classified as attractive nuisance, the question possessor of a property causing nuisance?
whether the petitioner had taken reasonable When there is a nuisance on a property created
precautions becomes immaterial. And the other or caused by the former owner or possessor,
issue submitted by petitioner - that the parents the subsequent owner or possessor, who having
of the boy were guilty of contributory

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full knowledge of the existence of the nuisance private nuisance is not extinguished by
must remove the nuisance. prescription, prescription will not lie for the
maintenance of nuisance.
Note:
G.R. :the liability of the creator and the one who *Abatement of nuisance does NOT prescribe.
maintains it is solidary You can still file.
XPN: if the parties acted independently of one
another without any concerted activity action
or common design, each one is liable only for What are the remedies against public
his individual act which contributed to the nuisance?
injury.
Art. 699. The remedies against a public
What is the effect if the nuisance is not nuisance are:
removed?
The creator or the one who knowingly (1) A prosecution under the Penal Code or
maintains it will be liable for damages and may any local ordinance: or
be held criminally liable. (2) A civil action; or
(3) Abatement, without judicial proceedings.
What is the rule in case of a lessee and
purchaser?
They may only be held liable if they knowingly Note:
maintain the nuisance on the property leased or Only PUBLIC NUISANCE, offenses against the
bought. State, may be the subject of a criminal
prosecution which may be authorized under a
Art. 697. The abatement of a nuisance does penal or an ordinance of a city or municipality.
not preclude the right of any person injured to
recover damages for its past existence.
What are the requisite for Extra Judicial
Can the action for abatement and damages be Abatement of Nuisance:
both sought? 1.there must be a necessity to justify the
Yes, the remedies of abatement and damages abatement.
are cumulative, that is, both may be demanded. 2.it must be exercised reasonably and
If the nuisance had already been abated and no efficiently.
longer exists, the aggrieved person may still
pursue a civil action for damages for the injuries
suffered during the existence of the nuisance. Note:
Under the RPC, there is no specific provision
Art. 698. Lapse of time cannot legalize any defining nuisance as a crime, but criminal action
nuisance, whether public or may be resort to because of the effects brought
private. by the nuisance, to wit:
- Alarms and scandals
CAN A NUISANCE BE LEGALIZED BY LAPSE OF - Malicious mischief
TIME? - Obscene publication
No. Lapse of time cannot legalize a nuisance, - Illegal discharge of firearms
whether public or private. Nuisances have the - Vagrancy and prostitution
element of criminality which cannot be - Unjust vexation
tolerated by law. An action to abate a public or

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Is the owner of the nuisance property entitled judicial proceedings, is the best remedy against
to compensation? a public nuisance.
NO. the owner of the property which is abated
by destruction is not entitled to property. The *Police power is the basis of the abatement. It
reasons are clear. The destruction of the should be reasonably done.
property is anchored to police power and not to
power of eminent domain. The purpose of
destruction is not for public use but for public Who shall file a civil action against public
safety. Accordingly, the law does not grant an nuisance?
favor to a person maintaining a nuisance which When the nuisance is public in character
affect the safety or use of property of others. affecting the community, it is the mayor or the
governor as the case may be who is required to
VIOLATION OF GARBAGE LAWS – commence an action against a public nuisance.
Environmental laws *Jurisdiction of abatement of nuisance
is lodge in the RTC
Art. 700. The district health officer shall take
care that one or all of the remedies against a Note:
public nuisance are availed of. Whether it is the district health officer or the
city engineer who shall determine the best
What is the duty of District Health officer? remedy depends on the kind of nuisance. That
It is the duty of the district health officer to take is to say, if the nuisance concerns cinstruction,
care that one or all of the remedies against the proper official is he City Engineer.
public nuisance are availed of.
Art. 703. A private person may file an action
Is the rule absolute? on account of a public nuisance, if it is specially
No. cases like illegal constructions or houses on injurious to himself.
public streets, the proper official is the City
Engineer. EXAMPLE: oil spill

What if the District Health Officer or the City Art. 704. Any private person may abate a
Engineer, as the case may be is not consulted public nuisance which is specially injurious to
prior to the abatement, is the person doing the him by removing, or if necessary, by destroying
abatement liable? the thing which constitutes the same, without
No. The person doing so is not necessarily committing a breach of the peace, or doing
liable. They would only be held liable for unnecessary injury. But it is necessary:
damages if later on it will be declared that what
is sought to be a nuisance is not a nuisance at (1) That demand be first made upon the
all. owner or possessor of the property to abate
the nuisance;
Art. 701. If a civil action is brought by reason (2) That such demand has been rejected;
of the maintenance of a public nuisance, such (3) That the abatement be approved by the
action shall be commenced by the city or district health officer and executed with the
municipal mayor. assistance of the local police; and
(4) That the value of the destruction does not
Art. 702. The district health officer shall exceed three thousand pesos.
determine whether or not abatement, without

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May a private person file an action against (4) That the value of the destruction does not
public nuisance? exceed three thousand pesos.
Yes. Generally, an action against public nuisance
in order to prosper must be commenced by the What are the other restriction in allowing a
city mayor or governor as the case may be. private individual file an action against public
However, the rule is not absolute. Being that so, nuisance?
the law allows the private individual to 1. The right to abate a public nuisance
commence an action against a public nuisance if must be resorted to only in case of
the private person has sustained a special and extreme necessity.
definite harm from a public nuisance. This 2. The right must ne exercise within a
means that it is specially injurious to him, reasonable time after the special injury
subject to the following conditions: or arm had been suffered.
(1) That demand be first made upon the 3. The means employed must be
owner or possessor of the property to abate the reasonable.
nuisance; 4. The property must not be destroyed
(2) That such demand has been rejected; unless necessary to eliminate the
(3) That the abatement be approved by the nuisance.
district health officer and executed with the
assistance of the local police; and *Ownership is NOT required for you to sue
(4) That the value of the destruction does not nuisance.
exceed three thousand pesos.

What is the nature of action? What are the remedies against private
The action to be filed may be for injunction, nuisance?
abatement or for damages.
*Subject to the condition that he must Art. 705. The remedies against a private
show special damage to himself nuisance are:

What is the procedure of Abatement of a (1) A civil action; or


public nuisance? (2) Abatement, without judicial proceedings.
A private person may file an action for the
abatement of the nuisance without judicial
proceedings by: What are the defenses available or applicable
1. Removing the thing which in private nuisance?
constitutes the nuisance; or 1. estoppel, public necessity
2. Destroying the thing when 2. non-existence of nuisance
necessary without disturbing the 3. impossibility of batement
peace of the community, or doing
unnecessary injury. Art. 706. Any person injured by a private
After complying with the following rules: nuisance may abate it by removing, or if
(1) That demand be first made upon the necessary, by destroying the thing which
owner or possessor of the property to abate the constitutes the nuisance, without committing a
nuisance; breach of the peace or doing unnecessary
(2) That such demand has been rejected; injury. However, it is indispensable that the
(3) That the abatement be approved by the procedure for extrajudicial abatement of a
district health officer and executed with the public nuisance by a private person be
assistance of the local police; and followed.

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2. file an action for injunction or


Art. 707. A private person or a public official prohibition with preliminary injunction
extrajudicially abating a nuisance shall be against the person threatening the
liable for damages: abatement to restrain them from
proceeding with the intended
(1) If he causes unnecessary injury; or abatement; or
(2) If an alleged nuisance is later declared by 3. a file a case of replevin if the property
the courts to be not a real nuisance. was seized; or
4. sought for damages if the property is
destroyed or sold.

How is private nuisance abated?


Any person injured by a private nuisance may REGISTRY OF PROPERTY
abate it by removing, or if necessary, by
destroying the thing which constitutes the Art. 708. The Registry of Property has for its
nuisance, without committing a breach of the object the inscription or annotation of acts and
peace or doing unnecessary injury after contracts relating to the ownership and other
complying with the following rules: rights over immovable property.
(1) That demand be first made upon the
owner or possessor of the property to abate the What is register?
nuisance; 1. The act of recording or annotating;
(2) That such demand has been rejected; 2. The book of registry;
(3) That the abatement be approved by the 3. The office concerned; or
district health officer and executed with the 4. The official concerned
assistance of the local police; and
(4) That the value of the destruction does not REGISTRY – repository of public records. Only
exceed three thousand pesos. immovables and real right may be recorded.

When does a person who did the abatement What are the purposes of registration?
liable? 1. To give notice to the whole world about
Generally, a person causing for the extra judicial the true status of real property, and of
abatement of nuisance is not liable except: existing real rights.
1. if they caused unnecessary injury to 2. To bind third persons who may come
the property of the owner or and transact contracts on the property.
possessor; or 3. To prevent the perpetrations of frauds
2. if the alleged nuisance is judicially by plugging loopholes which could
declared not a real nuisance. facilitate the unlawful transfers of
property.
What are the remedies of the owner of
property destroyed? What are the objects of Registry of Property?
If the property owner believes that his property The object of property is the inscription or
is not a nuisance, he may: annotation of acts and contracts relating to the
1. go to court for the determination of the ownership and other rights, mortgages,
status of the property as to whether it contracts of lease of realty for more than one
is a nuisance or not; year; deed of donation of realty, levy on
attachment of lands, levy on execution of lands.

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*the proceedings for registration of lands are in


rem.

Art. 709. The titles of ownership, or of other


rights over immovable property, which are not
duly inscribed or annotated in the Registry of
Property shall not prejudice third persons.

*third person refers to persons who are not


parties to the act, contract, or deed registered.

If there is a conflict between an unrecorded


deed of sale of prior date and a recorded real
estate mortgage of latter date, which one DIFFERENT MODES OF ACQUIRING
prevails? OWNERSHIP
Although the deed of sale is not registered, it
will prevail over the registered real estate Art. 712. Ownership is acquired by
mortgage. This is so because the original owner occupation and by intellectual creation.
had already parted with his ownership over the Ownership and other real rights over property
property and therefore he no longer have the are acquired and transmitted by law, by
right of ownership and free disposal over it so donation, by estate and intestate succession,
as to be able to mortgage it. and in consequence of certain contracts, by
tradition.
Art. 710. The books in the Registry of They may also be acquired by means of
Property shall be public for those who have a prescription.
known interest in ascertaining the status of the
immovables or real rights annotated or
inscribed therein. (607) What are the modes of acquiring ownership?
1. Original mode: are those which do not
Art. 711. For determining what titles are arise or depend upon any pre-existing
subject to inscription or annotation, as well as right or title of another person.
the form, effects, and cancellation of a. Occupation
inscriptions and annotations, the manner of b. Intellectual creation
keeping the books in the Registry, and the c. Prescription
value of the entries contained in said books,
the provisions of the Mortgage Law, the Land 2. Derivative mode: are those which arise
Registration Act, and other special laws shall or depend upon pre-existing or
govern. preceding right or title of another
person.
a. Law
b. Donation
c. Succession
d. Tradition
e. Contracts

----------------------------------------------------------------

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Distinguish mode from title.


Mode is the process of acquiring or transferring
ownership while Title is the juridical justification Classification of real rights in the Civil Code:
for a mode. The cause in mode is proximate 1. Complete control and enjoyment:
while in title is remote. Mode directly produces a. Ownership
real right while title serves merely to give an b. Co-ownership
opportunity for the existence of a real right, c. Possession
thus only personal right is produced.
---------------------------------------------------------------- 2. Incomplete control and enjoyment:
a. Lease of real property
Is registration a mode of acquiring ownership? b. Usufruct
No. Registration merely confirms the existence c. Easements
of one’s ownership over a property with notice
to the whole world. Registration does not vest 3. Real rights of security or guaranty:
title. It is merely an evidence of such title over a a. Real estate mortgage
particular property. b. Chattel mortgage
c. Pledge
IS THERE INSTANCES WHEN TITLE BECOMES d. Antichresis
MODE?
Intestate succession. 4. Real rights of Re-acquisition of
property:
MODE VS TITLE: a. Pre-emption
Mode is the process of acquiring or transferring b. Redemption
ownership while title is the juridical
justification. Mode is the proximate cause while
in title, it is only the remote cause. Mode is a
real right while title is only a personal right.

How is real right over property acquired? Can a land be acquired through occupation?
Real rights over property can be acquired by Never.
derivative modes of acquiring ownership. They
could not be acquired by occupation and Tradition as a mode of acquiring ownership:
intellectual creation because these latter modes Tradition is a legal delivery. It has a cause which
are original in nature and do not depend on is the title by reason of which the delivery is
pre-existing titles. made.

----------------------------------------------------------------
Distinguish real right from personal right. Classes of tradition:
A real right is the power of the person to obtain 1. Real or actual tradition: the actual
certain financial or economic advantages over a delivery of the thing from the hand of
specific thing, a power enforceable against the the grantor to the hand of the grantee if
whole world, whether or not he possess the the thing is a personality. If the thing is
thing. On the other hand, personal right is the a realty, it is manifested by certain
power belonging to a person to demand from possessory acts executed by the
another the fulfillment of a prestation to give, grantee with the consent of the grantor
to do or not to do. such as by taking over the property; by
---------------------------------------------------------------- entering it and occupying it.

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2. Constructive tradition: the delivery is 4. Abandonment


representative or symbolical in essence. 5. Loss
a. Tradicion symbolica- delivery of 6. Expropriation
certain symbols or things 7. Law
representing the thing being
delivered such as keys or titles
b. Tradicion instrumental- delivery of
the instrument of conveyance to OCCUPATION
the grantee by the grantor
c. Tradicion longa manu- by pointing Art. 713. Things appropriable by nature
of thing within sight which are without an owner, such as animals
d. Tradicion brevi manu- by grantee’s that are the object of hunting and fishing,
continuation of his possession over hidden treasure and abandoned movables, are
the thing delivered but now under a acquired by occupation.
title of ownership
e. Tradicion constitutum OCCUPATION IS THE OPPOSITE OF
possessorium- it consists in the ABANDONMENT.
owner;s continuous possession of
the property he had sold to another
person and his present possession Occupation is the taking of possession of a
is no longer as an owner corporeal thing which is a res nullius by a
f. Tradicion by operation of law- person through material apprehension thereof
delivery of the thing by operation of and with the intention to appropriate it as his
law such as in intestate succession own.
g. Quasi tradicion-delivery of
incorporeal property When is a thing considered abandoned?
A thing is considered abandoned when the spes
recuperandi (hope nor expectancy to recover) is
gone and the animo revertendi (the intention of
Requisites to make constructive delivery returning) had been given up by the owner.
effective:
1. The vendor or grantor must have the Note: lost things or taken by force are not ipso
control over the property sold or facto converted into res nullius, and it may thus
alienated at the moment of sale or be recovered from whoever has it unless said
alienation to the vendee or grantee possessor can show he has acquired it by any of
2. There must be an intention to deliver modes of acquiring ownership
ownership.
3. The purchaser must have enjoyment WILL YOU CONSIDER HIDDEN TREASURE RES
and material tenancy of the thing and NULLIUS?
make use of himself or through a No. although it is hidden treasure, it ONLY
representative. refers to those that it found in places with NO
owner.

HOW OWNERSHIP LOST?


1. Contracts ESSENTIAL REQUISITES FOR OCCUPATION:
2. Alienation 1. There must be a seizure or
3. Tradition apprehension;

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2. The property seized must be corporeal


personal property; 1995 – 2005? WHEN DID A ACQUIRE THE
3. The property seized must be PROPERTY? In 1995, retroactive effect.
susceptible of appropriation;
4. There must be intent to appropriate;
5. The requisites or conditions of the law Art. 715. The right to hunt and to fish is
must be complied with. regulated by special laws.

---------------------------------------------------------------- *municipality has the power to issue, and


Distinguish occupation from possession: enforce, ordinances respecting fisheries
Occupation can only apply to property without
owner but possession can apply to properties Special laws on hunting and fishing:
whether with or without owner. Occupation 1. Hunting Act No. 2590- for the
confers ownership while possession by itself preservation of certain animals,
does not confer ownership. There can be no declaring some seasons closed and
occupation without ownership but there can be others open for hunting and regulating
possession without ownership. for issuances of license to hunt.
---------------------------------------------------------------- 2. Fisheries Act 4003 as amended by CA
116 and 471 and RA 659
Land with no private owner belongs to the 3. Act 1499 as amended by Act 1685
State. which prohibit the use of explosives in
fishing
Art. 714. The ownership of a piece of land
cannot be acquired by occupation. Art. 716. The owner of a swarm of bees shall
have a right to pursue them to another's land,
Can the land be acquired by occupation? indemnifying the possessor of the latter for the
No. occupation, as one of the mode of acquiring damage. If the owner has not pursued the
ownership is done over properties which are res swarm, or ceases to do so within two
nullius or objects that has no owner. A land not consecutive days, the possessor of the land
owned by a private owner is reverted back to may occupy or retain the same. The owner of
the State, thus, it has its owner and never domesticated animals may also claim them
classified as res nullius. within twenty days to be counted from their
occupation by another person. This period
How can land be acquired? having expired, they shall pertain to him who
While land cannot be acquired by occupation, it has caught and kept them.
may be acquired by prescription.
Rule:
The owner of said swarm of bees should pursue
How can acquisitive prescription ripen into them within two consecutive days. In failing to
ownership? do so, the owner of the land where they strayed
1. Possession must be in the concept of an may retain them as his own.
owner *acquisition of ownership by law
2. Public
3. Peaceful For strayed domesticated animals:
4. Uninterrupted The owner may still claim them from the captor
5. Bona fide claim of ownership within twenty days reckoned from the date of
occupation by the captor.

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Six months from the publication having


Art. 717. Pigeons and fish which from their elapsed without the owner having appeared,
respective breeding places pass to another the thing found, or its value, shall be awarded
pertaining to a different owner shall belong to to the finder. The finder and the owner shall
the latter, provided they have not been be obliged, as the case may be, to reimburse
enticed by some article of fraud. the expenses.

Rule: *Previous possessor sufficient


The law provides that the pigeons and fishes
shall pertain to the owner of the ponds or When is the thing considered lost?
breeding places where they have wandered. A thing is lost when it is previously under the
XPN: when the fish has been enticed by lawful possession and control of a person but is
some artifice or fraud, the law provides now without any possessor, however it is not an
that they remain the property of the abandoned property.
owner and the person who enticed
them, being in bad faith, will lose his Duty of the finder:
own fish. When a person found a lost thing, it is his duty
to return it to its lawful owner or lawful
Art. 718. He who by chance discovers hidden possessor. If the lawful owner or possessor is
treasure in another's property shall have the unknown or cannot be located, he shall deposit
right granted him in article 438 of this Code. the lost thing found to the mayor of the city or
municipality where the finding has taken place.
Is hidden treasure res nullius?
If found in the land which has an owner, it is not Duty of the mayor:
considered as a res nullius. The mayor in turn must publicly announce the
finding of the property appropriately describing
*ownership of hidden treasure is acquired by the list thing for the purpose of inviting the
law. attention of the previous owner or possessor or
the public about the finding.
Art. 719. Whoever finds a movable, which is
not treasure, must return it to its previous When sale of the lost thing at public auction
possessor. If the latter is unknown, the finder authorized?
shall immediately deposit it with the mayor of Generally, when a thing is deposited in the
the city or municipality where the finding has municipality or city where its finding has taken
taken place. place, it must be kept until its lawful owner or
possessor claim it within the period allowed by
The finding shall be publicly announced by the the law, except when the movable cannot be
mayor for two consecutive weeks in the way kept for long without deterioration or without
he deems best. incurring substantial expenses for its safe-
keeping, the lost thing may be sold publicly.
If the movable cannot be kept without
deterioration, or without expenses which When is the lost thing awarded to the finder?
considerably diminish its value, it shall be sold The lost thing will be awarded to the finder if
at public auction eight days after the after six months from the time of publication,
publication. the previous lawful owner or possessor did not
claim it.

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Art. 722. The author and the composer,


What is the consequence if the finder did not mentioned in Nos. 1 and 2 of the preceding
do his duty prescribed by the law with regard article, shall have the ownership of their
to the lost thing? creations even before the publication of the
He may be held criminally liable for the crime of same. Once their works are published, their
theft. rights are governed by the Copyright laws.

Art. 720. If the owner should appear in time, The painter, sculptor or other artist shall have
he shall be obliged to pay, as a reward to the dominion over the product of his art even
finder, one-tenth of the sum or of the price of before it is copyrighted.
the thing found.
The scientist or technologist has the ownership
What are the duty of the owner who appear in of his discovery or invention even before it is
time and claim the lost thing? patented.
The owner has the following duty:
1. To give reward to the finder one-tenth Rule in ownership of intellectual property:
of the sum or value of the thing. 1. The author and the composer are
2. To reimburse the finder the expenses already the owner of their creation
incurred by the finder in locating him or even before the publication.
in preserving the lost thing of there is
any. Purpose of copyright: if the author or
3. To reimburse the expenses for publisher intends to publish his work;
publication, if there was a public also others may acquire their works of
auction sale not patented or copyrighted

INTELLECTUAL CREATION *mere circulation among friends is not


considered as publication
Art. 721. By intellectual creation, the
following persons acquire ownership: 2. The painter, sculptor or other artist is
also recognized as the owner of their
(1) The author with regard to his literary, works even before it is copyrighted.
dramatic, historical, legal, philosophical,
scientific or other work; 3. Same rule applies in case of scientist or
(2) The composer; as to his musical technologist.
composition;
(3) The painter, sculptor, or other artist, with Rule when employee is the creator:
respect to the product of his art;
(4) The scientist or technologist or any other The ownership of the work will pertain to the
person with regard to his discovery or employee if he created the work not as a result
invention. of his duty even done during working hours. But
if he is hired to do such, the ownership will
*under the NCC, intellectual creation is now a pertain to the employer.
mode of acquisition of ownership over the
works of those enumerated in art 721

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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.

Dual interest in letters:


Thoughts and ideas- owned by the writer and
can be published by him even without the
consent of the receipent.

The letter itself-owned by the recipient.

Can the recipient publish or disseminate the


letter?
Generally, the recipient’s ownership over the
letter is restricted. Under the law, he cannot
publish or disseminate the letter without the
consent of the writer. However, he may do so if
through the court order, the publication is
necessary for public safety or when the public
interest necessitates its publication or
dissemination.

Publication includes reading it to others.


E-mail?
Text messages? Yes. Ephemeral evidence.
XPN: Court order

Art. 724. Special laws govern copyright and


patent.

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DONATION e.g.: A donated a parcel of land


worth 1M to B, his maid for the
Art. 725. Donation is an act of liberality services made by B to A. Is the act
whereby a person disposes gratuitously of a of A donation?
thing or right in favor of another, who accepts Qualifications must be made. If
it. what has been given by A to b is in
lieu of B’s salary, it is not a donation
DONOR – disposes in favor of another person because it is his obligation to pay B
DONEE – accepts the donation for the services made in favor to
him as his maid. But if A is regularly
Essential elements of donation: paying B and gives B a parcel of
1. The essential reduction in the asset or land, then it is a donation because
patrimony of the donor there is an act of liberality already.
2. The increase in the patrimony of the
done c. Conditional donation- is a donation
3. The intent to do an act of liberality dependent to a happening of a
future or past event unknown to
the parties
What is the significance of acceptance in e.g. A will donate to B a car if B will
donation? pass the bar exam.
Acceptance is necessary in every donation in If condi was not complied with,
order for it to become effective. Since donation void.
is an act of liberality, no one is compelled to d. Modal donation- is a donation
accept the liberality of the supposed donor. wherein a burden or charge is
It is the point where donation becomes imposed on the done which is
effective. lesser in value than the thing
donated
Classifications of donation according to its Still with burden but lesser value.
effectivity: Burden is the mode itself. If it could not
1. Donation mortis cause- is a donation be complied with, valid but revocable
which takes effect after the death of e.g. A will donate a parcel of land to
the donor B provided that B will construct a
2. Donation inter vivos- donation which school on it.
takes effect within the lifetime of the WHAT IF THE BURDEN WAS NOT COMPLIED
donor WITH, WHAT IS THE STATUS OF DONATION?
a. Simple or pure donation- donation It is valid but revocable.
without any condition imposed
e.g.: A donates a parcel of land to B. CONDITION EXTRAVAGANT BURIAL,
DONATION 10M?
b. Remuneratory condition- is one Valid.
which remunerates the past
services of the done which do not e. Onerous donation- is one made
constitute demandable debts with valuable consideration which
against the donor. Merits. is equivalent or higher than the
*this means that the donor has no value of the thing donated
obligation to the done

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e.g. A will donate to B a parcel of


land worth 1M to B and B will give A
diamond worth 1M Kinds of impossible condition:
1. Juridical impossibility- condition which
are contrary to law, moral or public
Art. 726. When a person gives to another a policy
thing or right on account of the latter's merits e.g. A will donate to B a house provided
or of the services rendered by him to the it will be used as a shabu laboratory
donor, provided they do not constitute a 2. Physical impossibility- condition which
demandable debt, or when the gift imposes contradicts the law of nature
upon the donee a burden which is less than e.g. A will donate to B a parcel of land
the value of the thing given, there is also a provided B will fly to the moon and be back
donation. tomorrow.

Kind of donations contemplated under this What is the status of the donation with illegal
Article: or impossible donation?
1. Remuneratory or compensatory If the donation is simple or remuneratory
donation: donation, the donation is still valid and will be
Remuneratory- a form of reward treated as if no condition has been imposed,
because of the past services of the done but if the condition is onerous, which is
to the donor governed by laws on contracts, the donation
*1.the donee made a past becomes void because the condition imposed is
services to the donor illegal.
2. as a form of gratitude, the
donor gives something to the *No donation on intestate succession
done which do not constitute as
a demandable debts Art. 728. Donations which are to take effect
e.g. A save the life of B, B gave 1milliion upon the death of the donor partake of the
to A nature of testamentary provisions, and shall
in the given example, the act of be governed by the rules established in the
B is an act of liberality Title on Succession.

compensatory- in recognition of merit *Donation mortis causa is governed by rules on


e.g. those donation given to Pacquio Succession therefore it must conform with the
whenever he wins a fight formalities of wills

2. Modal donation RIGHT OF DISPOSITION – transferor


XPN: death
A GAVE 10,000 WHEREIN B WORKED FOR HIM
FOR 10 YEARS, IS IT A DONATION? INTER VIVOS IS REVOCABLE IF:
It depends. If it is as a salary, it is not a 1. Inofficious
donation. If it is not given as a salary, it is a 2. Failure to comply
donation. 3. Ingratitude

Art. 727. Illegal or impossible conditions in Characteristics of Donation Mortis Causa:


simple and remuneratory donations shall be
considered as not imposed.

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1. It conveys no title or ownership to the What is the test to determine if it is donation


transferee before the death of the mortis cause or donation inter vivos?
transferor; (no title yet before death) Whether it is donation mortis cause or donation
2. That before the death of the transferor, inter vivos is dependent upon the act and the
the donation may be revocable at his effectivity of the donation. If the effectivity of
will; the donation is made dependent to the death of
3. The transfer is void if the transferor the donor then it is a donation mortis cause. If
should survive the transferee (right of the effecivity of the donation is independent of
disposition – transferor xpn:death) the death of the donor, it is donation inter
vivos.

*In donation mortis causa, the right of *when there is a doubt as to the nature of the
disposition is not transferred to the donee while donation, it is resolved in favor of donation
the donor is still alive. inter vivos

Art. 729. When the donor intends that the INTER VIVOS REVOCABLE:
donation shall take effect during the lifetime 1. Inofficious
of the donor, though the property shall not be 2. Failure to comply
delivered till after the donor's death, this shall 3. ingratitude
be a donation inter vivos. The fruits of the
property from the time of the acceptance of What is donation praesenti?
the donation, shall pertain to the donee, Donation praesenti is considered as a donation
unless the donor provides otherwise. inter vivos but the delivery of the thing to be
donated is in the future
----------------------------------------------------------------
Distinguish donation mortis causa from Ownership immediately transferred through
donation inter vivos: done but takes effect upon death. Death is
Donation MC takes effect after the death of the irrelevant.
donor while Donation IV takes effect during the
lifetime of the donor. Being so, Donation MC Death is not or relevant in transfer.
shall strictly follow the formalities of will while
Donation IV follows the formalities of donation Art. 730. The fixing of an event or the
because Donation MC is governed by provisions imposition of a suspensive condition, which
under Succession while Donation IV is governed may take place beyond the natural expectation
by rules on Donation. In donation mc of life of the donor, does not destroy the
acceptance must be made after the death of nature of the act as a donation inter vivos,
the donor while acceptance in donation IV is unless a contrary intention appears.
made during the lifetime of the donor.
Donation MC may be revoked at anytime *not descendant or death of donor
during the lifetime of the donor, but in case of
donation IV, it is generally not revocable except GR: when a suspensive condition is imposed on
in cases of inofficious donations, failure to donation inter vivos, it is not changes to
comply with the imposed condition or donation mortis cause
ingratitude. XPN: when there is a stipulation to the
---------------------------------------------------------------- contrary.

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Art. 731. When a person donates something, When the donation is an onerous one, it is
subject to the resolutory condition of the governed by the laws of contract. If the
donor's survival, there is a donation inter donation is partially onerous, the donation
vivos. equivalent to the burden is governed by the
rules on donation while the excess is governed
Rule when donation is subject to a resolutory by the laws on contracts.
condition:
Resolutory condition- is one the happening of ----------------------------------------------------------------
which terminates an obligation Distinguish onerous from remuneratory
donation:
*what is contemplated under the article is upon In onerous donation, the services of the done
the DONOR’S survival and not of the done has not yet been performed while the services
of the done in remuneratory condition is
e.g. A will give B a rolex but when A survives the already performed.
hiking to Mt. Everest, B must return the rolex. A ----------------------------------------------------------------
survived. Is there a donation?
Art. 734. The donation is perfected from the
Yes, the donation is a donation inter vivos with moment the donor knows of the acceptance
resolutory condition. by the donee.

Art. 732. Donations which are to take effect *perfection happens upon acceptance
inter vivos shall be governed by the general
provisions on contracts and obligations in all WHAT IS THE RELEVANCE OF ACCEPTANCE?
that is not determined in this Title. It is an essential requisite for the validity of
donation.
What governs donation inter vivos?
Donation inter vivos which takes effect during When is the moment of perfection of
the lifetime of the donor is governed by the donation?
provision on Donations. In case the rules on A donation is perfected from the time the
donations is insufficient, the laws on contracts donor has the knowledge of the acceptance
and obligations will apply suppletorily. made by the donee. Thus, the acceptance must
be made during the lifetime of the donor.
What rule will apply if there is illegality on
object and cause of donation? What is the status of the donation when
Object and cause are two separate elements of acceptance by done is not made?
a donation and the illegality of either element The donation is null and void.
will give rise to the application of doctrine of
pari delicto. Rule prior to knowledge of acceptance:
Before the acceptance of the done, there s no
Art. 733. Donations with an onerous cause perfection of donation yet. Otherwise put,
shall be governed by the rules on contracts and there is no donation at all, hence the donor may
remuneratory donations by the provisions of give the property to somebody else. This is so
the present Title as regards that portion which because the donor has not yet parted woth the
exceeds the value of the burden imposed. disposition of the property.

Rule: PERSONS WHO MAY GIVE OR RECEIVE A


DONATION

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Art. 735. All persons who may contract and What is the status of the donation made by the
dispose of their property may make a guardians and trustees?
donation. The donation is void because under the law
they are not allowed to donate properties
entrusted to them.
Requisites in order for a person may validly
donate: Is the rule absolute?
1. The capacity to enter contract (must be No. if the donation made by the guardian is
of legal age) with the consent of the ward and has a judicial
2. Capacity to dispose his property by acts approval and will benefit the ward, the
inter vivos donation is valid.
*in other words, the donor must have a full
capacity *Trustees may become owner by repudiation
by the trustor
Art. 737. The donor's capacity shall be
*Applicable to both natural and artificial determined as of the time of the making of the
persons. donation.

May corporations donate? When is the donor’s capacity determined?


The persons contemplated under the law, who The capacity of the donor is determined at the
may give donations are either natural or time of the making of the donation, which
juridical persons. In case of natural person, he means the time of the execution of the deed of
must have a full capacity, that is complying with donation, which must also be read at the time
the requisites provided for by the law to make a of perfection of the donation.
valid donation. In case of juridical person, it *donor’s capacity must be present at
may donate as long as it is authorized under the the time of the perfection of the
Corporation Law. donation
*Ratification may be allowed *making means at the time of
perfection
What is the status of donation made by
minors, insane, imbecile or those person with Art. 738. All those who are not specially
restricted capacity to act? disqualified by law therefor may accept
The donation is voidable because the consent of donations.
the donor is defective by reason of his
incapacity to give consent. Who are qualified to accept donations?
Generally, all persons whether natural are
WHAT IF PERSONAL PROPERTY WAS juridical, are qualified to accept donations
DONATED, WOULD IT STILL NEED TO COMPLY except those specifically disqualified by the law
WITH THE 60/40 REQUIREMENT? under Art. 739 of NCC.
No if it is provided by the charter of the
corporation.
Two kinds of disqualified donee:
Art. 736. Guardians and trustees cannot 1. Specially disqualified donee- those
donate the property entrusted to them. disqualified by law as enumerated
Reason: Because they are not the owners of the under Art. 739
property. No right to dispose.

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2. Relatively disqualified- those who are What is the status of the donation made to
disqualified under the circumstances persons enumerated under Art. 739?
provided for by Art. 1027, 1032 The donation made to persons enumerated
under Art. 739 is void from the beginning. By
Rule in giving donation to organization: reason of moral consideration, the law
Alien Organization- G.R.: cannot be a done automatically declares their nullity and need
XPN: when 60% of its not be pronounced as such by courts.
capital is owned by Filipinos
Application:
Non-Stock Organization- cannot be a donee *The donation to be void under paragraph 1, it
unless the controlling membership is in Filipino must be two person guilty of either ADULTERY
hands or CONCUBINAGE.
*The donation must be made at the time they
Filipino Organization- can be a done because it are currently having their relationship as
is controlled by Filipinos paramours.

Art. 739. The following donations shall be Situation:


void: A, a married man courted B, a GRO and donated
jewelries. Is the donation valid?
(1) Those made between persons who were Yes. The donation of A to B is valid,
guilty of adultery or concubinage at the time of notwithstanding illicit relationship between A
the donation; and B. This is so because their relationship does
not amount to adultery or concubinage
(2) Those made between persons found
guilty of the same criminal offense, in A will donate a car to B provided they will end
consideration thereof; their relationship. Is donation valid?
Yes. The donation of A to B is valid because its
(3) Those made to a public officer or his wife, purpose or consideration is not to continue an
descedants and ascendants, by reason of his immoral arrangement but precisely to put an
office. end to it.

In the case referred to in No. 1, the action for PARAGRAPH 2:


declaration of nullity may be brought by the Application: Unlike Par. 1, criminal conviction
spouse of the donor or donee; and the guilt of under Par. 2 is necessary.
the donor and donee may be proved by Qualifying condition: To be void, the donation
preponderance of evidence in the same action. must be in consideration of the crime.
Query: What if the donation is made
PARAGRAPH 1: between the convicted, is the donation
Is criminal conviction necessary in Par 1? valid but for some consideration?
No, the fact that a civil action for the Yes. Although it is made between the
declaration of nullity of donation is filed is two convicted, the donation is still valid
sufficient. notwithstanding their conviction as long
as it is not in consideration of the crime
What is the required evidence? at which they are convicted.
Preponderance of evidence only.
Can live-in partners or common law spouses
without impediments donate?

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Generally, they cannot donate with each other disqualified because the law says so. In cases of
as this will place them favorably than those who Arts. 919, 920, 921, if it is done by the parents
are married. However they may donate child or spouse, it is still within the discretion of
moderately only when the family is rejoicing. the donor to donate I to the child, parents or
spouse who did the unworthiness.
PARAGRAPH 3: ----------------------------------------------------------------
RULE:
Public officers are not allowed to receive What is the consequence of the donation?
donation, it is prohibited by law from any Art. 919, 920, 921- there must a reconciliation
person, at any event. and express pardon or forgiveness
Acts of unworthiness- express pardon and
Art. 740. Incapacity to succeed by will shall written condonation
be applicable to donations inter vivos.

*Incapacity to succeed is only applicable to Art. 919. The following shall be sufficient causes
donation inter vivos. for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has
Two kinds of person disqualified to succeed:
1. Absolutely disqualified to inherit by will: been found guilty of an attempt against
Arts. 1028, 919, 920, 921 the life of the testator, his or her
2. Relatively disqualified to inherit by will: spouse, descendants, or ascendants;
Arts. 1027, 1032 (2) When a child or descendant has
accused the testator of a crime for
*please see these Articles for guidance which the law prescribes imprisonment
for six years or more, if the accusation
*ARTS. 1027 and 1032 are relatively disqualified
because they are naturally allowed to be a done has been found groundless;
but because of the situation, they are barred (3) When a child or descendant has
from receiving donations been convicted of adultery or
concubinage with the spouse of the
What is the status of donation made by the testator;
guardians?
(4) When a child or descendant by
Whether it is void or not depends upon the
underlying circumstances. If the donation is fraud, violence, intimidation, or undue
made before the final accounting of assets, it is influence causes the testator to make a
void because as to the portion allowed to be will or to change one already made;
donated is still ideal, but if donation is made (5) A refusal without justifiable cause to
after the accounting of assets, it is valid. support the parent or ascendant who
disinherits such child or descendant;
----------------------------------------------------------------
(6) Maltreatment of the testator by
Distinguish Arts. 919, 920, 921 from Art. 1032:
While articles 919, 920 and 921 and 1032 are word or deed, by the child or
generally considered as acts of unworthiness, descendant;
under Art. 1032, the grounds are imposed by he (7) When a child or descendant leads a
law and it is automatic in a sense that if the dishonorable or disgraceful life;
done had done those enumerated, he is already

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(8) Conviction of a crime which carries of the testator, his or her descendants,
with it the penalty of civil interdiction. or ascendants;
(756, 853, 674a) (2) When the spouse has accused the
Art. 920. The following shall be sufficient causes testator of a crime for which the law
for the disinheritance of parents or ascendants, prescribes imprisonment of six years or
whether legitimate or illegitimate: more, and the accusation has been
(1) When the parents have abandoned found to be false;
their children or induced their (3) When the spouse by fraud, violence,
daughters to live a corrupt or immoral intimidation, or undue influence cause
life, or attempted against their virtue; the testator to make a will or to change
(2) When the parent or ascendant has one already made;
been convicted of an attempt against (4) When the spouse has given cause
the life of the testator, his or her for legal separation;
spouse, descendants, or ascendants; (5) When the spouse has given grounds
(3) When the parent or ascendant has for the loss of parental authority;
accused the testator of a crime for (6) Unjustifiable refusal to support the
which the law prescribes imprisonment children or the other spouse. (756, 855,
for six years or more, if the accusation 674a)
has been found to be false; Art. 1027. The following are incapable of
(4) When the parent or ascendant has succeeding:
been convicted of adultery or (1) The priest who heard the confession
concubinage with the spouse of the of the testator during his last illness, or
testator; the minister of the gospel who
(5) When the parent or ascendant by extended spiritual aid to him during the
fraud, violence, intimidation, or undue same period;
influence causes the testator to make a (2) The relatives of such priest or
will or to change one already made; minister of the gospel within the fourth
(6) The loss of parental authority for degree, the church, order, chapter,
causes specified in this Code; community, organization, or institution
(7) The refusal to support the children to which such priest or minister may
or descendants without justifiable belong;
cause; (3) A guardian with respect to
(8) An attempt by one of the parents testamentary dispositions given by a
against the life of the other, unless ward in his favor before the final
there has been a reconciliation accounts of the guardianship have been
between them. (756, 854, 674a) approved, even if the testator should
Art. 921. The following shall be sufficient causes die after the approval thereof;
for disinheriting a spouse: nevertheless, any provision made by
(1) When the spouse has been the ward in favor of the guardian when
convicted of an attempt against the life the latter is his ascendant, descendant,
brother, sister, or spouse, shall be valid;

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(4) Any attesting witness to the cause the testator to make a will or to
execution of a will, the spouse, parents, change one already made;
or children, or any one claiming under (7) Any person who by the same means
such witness, spouse, parents, or prevents another from making a will, or
children; from revoking one already made, or
(5) Any physician, surgeon, nurse, who supplants, conceals, or alters the
health officer or druggist who took care latter's will;
of the testator during his last illness; (8) Any person who falsifies or forges a
(6) Individuals, associations and supposed will of the decedent. (756,
corporations not permitted by law to 673, 674a)
inherit. (745, 752, 753, 754a)
Art. 1032. The following are incapable of
succeeding by reason of unworthiness: Unworthiness of the donee
(1) Parents who have abandoned their If the unworthiness of the donee is unknown,
the donation made to him is VOID; on the other
children or induced their daughters to
hand if the unworthiness of the donee is known
lead a corrupt or immoral life, or the donation made in favor of him is VALID.
attempted against their virtue; Reason: the donation itself is the condonation
(2) Any person who has been convicted in writing needed to make the donation valid
of an attempt against the life of the
testator, his or her spouse, Situation:
A donated to B. B attempted to kill A’s child. Is
descendants, or ascendants;
the donation valid?
(3) Any person who has accused the Yes. The donation is still valid notwithstanding
testator of a crime for which the law the unworthiness of B which was done after the
prescribes imprisonment for six years or perfection of the donation, but because of such,
more, if the accusation has been found the law provides that the donation after being
groundless; perfected and the donee became unworthy, it
(4) Any heir of full age who, having may be a ground for revocation of donation.
knowledge of the violent death of the
Art. 741. Minors and others who cannot
testator, should fail to report it to an enter into a contract may become donees but
officer of the law within a month, acceptance shall be done through their parents
unless the authorities have already or legal representatives.
taken action; this prohibition shall not
apply to cases wherein, according to What is the status of the donation made by
law, there is no obligation to make an minors, imbecile or insane?
The donation made by minors, insane or
accusation;
imbecile who has a restricted capacity is
(5) Any person convicted of adultery or voidable.
concubinage with the spouse of the
testator; May they become a donees?
(6) Any person who by fraud, violence, Yes, although they are restricted to enter into a
intimidation, or undue influence should contract, they are still qualified to be a donees
provided that the acceptance will be made by
their parents of legal representative.

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2. Incapacitated by vitiated consent: these


Art. 742. Donations made to conceived and are donations made by person with
unborn children may be accepted by those restricted capacity to enter a contract
persons who would legally represent them if - Consent are vitiated ( donations are
they were already born. merely voidable)

May a donation be made to unborn child?


Yes, provided that the following condition is Application: The donations pertained here are
met: those given to incapacitated by law to become a
1. The child will have its personality done, in which case, in the event a donation is
2. There must be acceptance on the part made in favor of them, the law provides that it
of the mother is void as distinguished with the donation made
to minor, insane or imbecile done which is
Situation: merely voidable.
B, mother of unborn child accepted the
donation but the child with intra-uterine of 7 Situation:
months died on the 10th hour, what is the status A and B were paramours convicted of adultery.
of the donation? A donated to X a land with a previous
Valid. The child already has its personality and understanding that the same thing will be
the mother has accepted the donation. donated to B. Is the donation valid?
No. the donation between A and X is void. This
What if born on the 6th month instead of the is so because the consideration made is a
7th? simulated donation. The donation is in fact
The answer will be different, in this case, the between two persons who are guilty of
donation is void because the donee did not gain adultery, which is prohibited. To otherwise
personality. grant the donation between A and X will be
against the law.
What if the donation of 100,000 is onerous is
given to an unborn child and he is born Art. 744. Donations of the same thing to two
completely with intra-uterine life of 9 months. or more different donees shall be governed by
What is the status of the donation? the provisions concerning the sale of the same
The status of the donation is inoperative. It will thing to two or more different persons.
not be effective because the rule which will be
applied is rule on contracts and not rule on Rule on double donation:
donation. The rule on double donation is the same rule in
double sale, to wit:
Art. 743. Donations made to incapacitated When the object of the donation is a movable
persons shall be void, though simulated under property: the one in possession in good faith is
the guise of another contract or through a preferred.
person who is interposed.
When the object of the donation is an
immovable, preference takes place as follow:
Two kinds of incapacitated persons in donation. Registered: the one who acquired it in good
1. Incapacitated by law: art 739, 919, 920, faith and registered it FIRST
921, (any donation under these Not registered: the one who is in possession in
provisions of law are void) good faith

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And in default: the one who could present an Why is that donation must be accepted by the
older title provided there is good faith. done or in his absence, a person authorized to
receive?
This is so because a donation is an act of
Art. 1544. If the same thing should have been liberality and it will not be effective if it is not
sold to different vendees, the ownership shall accepted by the donee in manner provided by
be transferred to the person who may have first law. without valid acceptance, the donation is
taken possession thereof in good faith, if it void.
should be movable property.
Acceptance by agent:
Should it be immovable property, the when it is a simple and onerous donation, the
ownership shall belong to the person acquiring ordinary agent or administrator cannot accept
it who in good faith first recorded it in the the donation made in favor of the done, it the
Registry of Property. donee’s behalf.
Reason: This is so because in simple
Should there be no inscription, the ownership donation, the principal may not want to accept
shall pertain to the person who in good faith it. In onerous donation, the principal may not
was first in the possession; and, in the absence want to be bound.
thereof, to the person who presents the oldest
title, provided there is good faith. (1473)

Formalities of donation:
Art. 745. The donee must accept the donation A. Movables:
personally, or through an authorized person 1. Orally- with simultaneous delivery;
with a special power for the purpose, or with a value of which is 5000 below
general and sufficient power; otherwise, the 2. Writing- exceeds in 5000
donation shall be void. Note: the law does not require it to be
in public document, it simply requires
to be in writing
Modes of acceptance of donation:
1. Personally- the done is the one who ACCEPTANCE:
accepts it Acceptance must also be writing if the
2. By legal representative provided that: donation was required in writing.
a. It has notification
b. With authority B. Immovable:
c. With sufficient power 1. Donation must be in writing
Otherwise acceptance made by a 2. Acceptance must be in writing
third person not a legal Note: Unlike when the object of
representative is void. donation is a movable, if the object of
donation is immovable, it must always
Two kinds of authorized person: be in public document otherwise, the
1. With special power donation will be void
2. With a general and sufficient power
C. Onerous donation
The formalities that must be applied
with regard to onerous donation are
those of the rules on contracts

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D. Donation Mortis cause If the value of the personal property donated


Formalities of wills exceeds five thousand pesos, the donation and
the acceptance shall be made in writing,
Art. 746. Acceptance must be made during otherwise, the donation shall be void.
the lifetime of the donor and of the donee.
Formalities of donation:
Donation inter vivos- acceptance must be made Movables:
during the lifetime of the donor, otherwise 1. Orally- with simultaneous delivery;
there is no perfection of donation value of which is 5000 below
2. Writing- exceeds in 5000
Donation mortis cause- acceptance must be Note: the law does not require it to be
made after the death of the donor in public document, it simply requires
to be in writing
Onerous donation- there must unconditional
acceptance, otherwise there is no meeting of ACCEPTANCE:
the mind, therefore no perfection of contract. Acceptance must also be writing if the
donation was required in writing.
*Again, the acceptance must be made known to
the donor, otherwise there is no perfection of *donation and acceptance of movable that is
donation. worth more than 5000 php not in writing, it is
Art. 747. Persons who accept donations in void.
representation of others who may not do so by
themselves, shall be obliged to make the Art. 749. In order that the donation of an
notification and notation of which article 749 immovable may be valid, it must be made in a
speaks. public document, specifying therein the
property donated and the value of the charges
Who should give the notification? which the donee must satisfy.
The authorized representative who accepts the
donation in behalf of the done with restricted The acceptance may be made in the same
capacity like those of the minors, insane or deed of donation or in a separate public
imbecile, must notify the donor of the document, but it shall not take effect unless it
acceptance both in the deed of donation and is done during the lifetime of the donor.
acceptance.
If the acceptance is made in a separate
What is the effect if the representative did not instrument, the donor shall be notified thereof
notify the donor? in an authentic form, and this step shall be
The donation shall not be effective as there is noted in both instruments.
no perfection of donation because the
acceptance, which is necessary to make the Formalities of Donation
donation valid, is not perfected. E. Immovable:
1. Donation must be in writing
Art. 748. The donation of a movable may be 2. Acceptance must be in writing
made orally or in writing. Note: Unlike when the object of
An oral donation requires the simultaneous donation is a movable, if the object of
delivery of the thing or of the document donation is immovable, it must always
representing the right donated.

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be in public document otherwise, the The law requires that the donor makes a
donation will be void reservation for those he may be called upon to
support.
But in order to bind third person, the
donation must be registered in the What is the effect if there is no reservation?
Registry of Property. Does it affect the validity of the donation?
The donation is still valid as it is only excessive
Effects if the donation is only in Private donation. It is merely reducible to the extent
Document (not notarized) support of the relatives is impaired.
As the law requires that if the object of
donation is an immovable property, it must be Art. 751. Donations cannot comprehend
notarized, if it is otherwise made, it will be: future property.
1. Void except it is donation propter By future property is understood anything
nuptias because it is Statute of Frauds which the donor cannot dispose of at the time
which governs the donation of the donation.
2. Cannot be ratified, the remedy is to
make another donation following he Can the donor donate future property?
formalities provided by law No. the law prohibits it because future
Reason: Ratification is only made if the properties are those, which the donor cannot
donation is valid from the beginning, dispose at the time of the donation. This means
but in case the donation which is that future inheritance cannot be donated but
required to be made in public accrued inheritance can be donated. The
document is in private form, the donation will be considered void.
remedy is to make a new one and not
to ratify because it is void. XPN: The exception involves marriage
settlements of prospective spouses wherein
EFFECT OF DONATIONS AND LIMITATIONS they are allowed to donate properties to the
extent permitted by law.
Art. 750. The donations may comprehend all
the present property of the donor, or part Art. 752. The provisions of article 750
thereof, provided he reserves, in full notwithstanding, no person may give or
ownership or in usufruct, sufficient means for receive, by way of donation, more than he may
the support of himself, and of all relatives give or receive by will.
who, at the time of the acceptance of the The donation shall be inofficious in all that it
donation, are by law entitled to be supported may exceed this limitation.
by the donor. Without such reservation, the
donation shall be reduced in petition of any Application: No person may give more than
person affected. what he can give by will and at the same time,
the donee cannot receive more than what the
What are the properties covered by donation? donor could give by will.
Only present properties, which are the - The limitation given by the law with
properties which can be disposed of at the time regard to giving donation is that it must
of perfection of donation. not be more than what he can give by
will. This is to prevent the compulsory
What does the law requires when making a heirs from being prejudiced.
donation?
Illustration:

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A donate 1M to a beggar. When there are several donees and one of


them repudiates.
Applying the provision, nothing bars the donor
to give the 1M to the beggar and the beggar to Is there accretion among joint donees?
receive the 1M if there is enough for the Generally, there is none except when the donor
legtime, that part of person’s possession which has provided otherwise and those made to
he cannot freely dispose by will because it is spouses.
reserved for his compulsory heirs.
Illustration of the article:
A donated to B and C, and B refuses to accept
Art. 84. If the future spouses agree upon a the donation.
regime other than the absolute community of C will not ipso facto get the share of B
property, they cannot donate to each other in unless A, the donor has provided otherwise.
their marriage settlements more than one-fifth
of their present property. Any excess shall be A donated to B and C, who are husband and
considered void. wife. B refuses. C will get B’s share unless the
donor has provided otherwise.
Donations of future property shall be governed
by the provisions on testamentary succession What is the effect of accretion among joint
and the formalities of wills. (130a) donees?
The share is considered as co-equal, if one
repudiates or dies, it will be added to the other
What is the remedy of the heirs in case of co-donees.
inofficious donation?
The heirs who are prejudiced may file an action Art. 754. The donee is subrogated to all the
to revoke or reduce the inofficious donation, rights and actions which in case of eviction
within five years after the death of the donor. would pertain to the donor. The latter, on the
*Note: the action must be filed only other hand, is not obliged to warrant the
after the donor’s death because tha is things donated, save when the donation is
the time to determine whether the onerous, in which case the donor shall be
donation is really inofficous. liable for eviction to the concurrence of the
burden.

Art. 753. When a donation is made to several The donor shall also be liable for eviction or
persons jointly, it is understood to be in equal hidden defects in case of bad faith on his part.
shares, and there shall be no right of accretion
among them, unless the donor has otherwise What is the right of the done if he is evicted
provided. from property donated?
He is subrogated to all rights given to the donor.
The preceding paragraph shall not be
applicable to donations made to the husband What is the concept of eviction?
and wife jointly, between whom there shall be Eviction in donation is when the done is
a right of accretion, if the contrary has not deprived a part or in whole of the property
been provided by the donor. donated to him. Otherwise put, in case the
done is evicted from the property donated to
When does accretion arise in succession? him, the said done assumes all the rights and
actions available to the donor. Being so, he may

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file the necessary cases as if he is the donor Illustration:


himself. A gave in donation to B a land of fruit bearing
Illustration: trees and as stipulated from the deed of
A donated a car to B which A bought from C. donation, A reserves his right to harvest it next
the car bought from c which he donated to B season, which is on November. A died in
has defects. October. Is the donation valid?
Following the sequence, B has been Yes. The donation is valid. The perfection of the
evicted from the property donated to contract was made. But as far as the reservation
him. In this case, B assumes all the to harvest the fruits is concerned, although it is
rights of A, or he steps into the shoes of expressly reserved by the donor in the deed of
A. He has the right to sue C, the seller. donation, the fruits will still belong to the done
This is so because as done, he is because the donor died before he can exercise
subrogated from all the rights given to his right which he reserved.
A as the donor.
Art. 756. The ownership of property may also
From the given example, can B go against A, be donated to one person and the usufruct to
the donor? another or others, provided all the donees are
Generally, the donee cannot go against the living at the time of the donation.
donor. This is true in case of simple or pure
donation as the donor, by merely acting in his Is there a split donation?
liberality and in good faith, does not warrant Yes, provided that the donees must be living at
the hidden defect of donation. the time of perfection of donation.

What if the donation is onerous, to whom will Application: donation of full ownership and
the donee against? usufruct.
The done will go against the donor as far as the
consideration is concerned. What is the status of the donation if one of the
donees died and the other has accepted it?
Generally, the donor does not warrant in Inoperative as far as the donation given to the
donation, except: done who died is concerned.
1. If the donor is in bad faith;
2. If donation is onerous;
3. If donation is proper nuptias unless the Illustration:
contrary is stipulated. A donated to B the naked ownership and C the
usufruct. B died. Which donation is inoperative?
The donation given to B is inoperative. In these
Art. 755. The right to dispose of some of the case it is upon the donr if he will give the
things donated, or of some amount which shall inoperative donation to the naked owner or
be a charge thereon, may be reserved by the give it to another.
donor; but if he should die without having
made use of this right, the property or amount Art. 757. Reversion may be validly
reserved shall belong to the donee. established in favor of only the donor for any
case and circumstances, but not in favor of
Can the donor make reservations in the deed other persons unless they are all living at the
of sale? time of the donation.
Yes. The donr may reserved the disposition of
some of the property donated. Is reversion of property donated allowed?

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Yes it is allowed, however it is not automatic. XPN: if there is a stipulation that the
Illustration: future debts will also be covered.
A donated a land to B provided a school will be
constructed therein. B failed to construct the What if there is no stipulation regarding the
school. Will the land donated revert to A? debt in the deed of donation?
Yes, provided that the donor will file an action Generally, the done will make no payment of
to revert the land previously donated by him to the debt, except when the donation is made in
him. Exception to that is when the done has fraud of creditors, in which case the done will
voluntarily surrendered the property. be compelled to pay the creditor.

What is there is a stipulation in the deed of sale Art. 759. There being no stipulation regarding
that upon failure of compliance of the the payment of debts, the donee shall be
condition, it will be reverted back to a 3rd responsible therefor only when the donation
person. Is it allowed? has been made in fraud of creditors.
Yes, provided that at the 3rd person is alive at
the time of perfection of the donation. The donation is always presumed to be in
fraud of creditors, when at the time thereof
What if that 3rd person died, what is the status the donor did not reserve sufficient property
of the donation? to pay his debts prior to the donation.
The donation would still be valid, but the
stipulation made is invalid because the 3rd When is fraud of creditor presumed?
person to whom the stipulation was made in It is presumed that there is a fraud of creditor
favor of died. when the donor did not reserve sufficient
property at the time of donation for the full
Art. 758. When the donation imposes upon settlement of his debts.
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 REVOCATION AND REDUCTION OF DONATION
understood to be liable to pay only the debts
which appear to have been previously
contracted. In no case shall the donee be Art. 760. Every donation inter vivos, made by
responsible for the debts exceeding the value a person having no children or descendants,
of the property donated, unless a contrary legitimate or legitimated by subsequent
intention clearly appears. marriage, or illegitimate, may be revoked or
reduced as provided in the next article, by the
May the donor imposed the debt of donor to happening of any of these events:
done?
Yes, provided that there is a stipulation on the (1) If the donor, after the donation, should
deed of donation. have legitimate or legitimated or illegitimate
children, even though they be posthumous;
What is the extent of donee’s liability?
It shall not exceed the value donated, except (2) If the child of the donor, whom the latter
when there is a stipulation to the contrary. believed to be dead when he made the
donation, should turn out to be living;
G.R.: The debts which the donor may impose to
the done is his prior debts, that is those debts (3) If the donor subsequently adopt a minor
incurred by the donor before the donation. child.

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adoption of a child, the property affected shall


Upon the happening of this circumstances, will be returned or its value if the donee has sold
it be a cause for the reduction or revocation of the same.
the donation?
It is not automatic. It will only be a cause if the If the property is mortgaged, the donor may
donation exceeds the disposable free portion. redeem the mortgage, by paying the amount
guaranteed, with a right to recover the same
PARAGRAPH 1: BIRTH OF A CHILD from the donee.
What if the child is illegitimate? When the property cannot be returned, it shall
The recognition of the child is necessary so it be estimated at what it was worth at the time
will be a ground for the revocation of the of the donation.
donation.
What is the duty of the done if the donation os
What if the donor donated a property to B and revoked or reduced on the ground of by birth,
he knew he impregnated someone. Will it be a appearance, adoption?
ground for revocation? 1. If the property is still with him, to
No. the donor knew that he had impregnated return the property.
someone, therefore the law assumes that he 2. If the property has been sold, to give
made reservations. the value to the donor.
3. If the property has been mortgaged, the
It will be different it he is not aware about that donor may pay off the debt, but he can
fact, in which case, the danation will still be recover reimbursement from donee.
valid but it will now be a ground for reduction 4. If the property cannot be returned, to
or revocation. return its value, which is based on the
NOTE: value at the time of perfection of
AWARE: Only reduction donation.
NOT AWARE: revocation and reduce
Donor made the donation, he already has a Art. 763. The action for revocation or
child but it was only after the donation that he reduction on the grounds set forth in article
recognized the child. Is it a ground base on par 760 shall prescribe after four years from the
1? birth of the first child, or from his legitimation,
No. paragraph applies only to birth of child after recognition or adoption, or from the judicial
the donation. declaration of filiation, or from the time
information was received regarding the
*Recognition is not a ground for recognition. existence of the child believed dead.
Recognition does not affect donation.
This action cannot be renounced, and is
DISPOSABLE FREE PORTION – remaining transmitted, upon the death of the donor, to
portion after deducting the legitimes of his legitimate and illegitimate children and
compulsory heirs descendants.

FREE PORTION – Period of prescription: 4 years, depending on


the ground.
*No distinction on adopted child. Whether AS TO THE BIRTH OF CHILD: the period shall be
counted from the birth of the child; if there are
Art. 762. Upon the revocation or reduction of several children, from the birth of the first child.
the donation by the birth, appearance or NOTE: if the 4 years has lapsed from the

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birth of the first child, it is already non-compliance of the donation. The donor
prescribed and will not be revived by cannot revoke the donation by his own
subsequent birth. unilateral act even if the donee has failed to
comply with the condition. A court action is
AS TO LEGITIMATION: from the date of essential
marriage of the parent, the recognition is made
by both parents What is the status of the sale?
It is void because the donee who failed to
*Retroactive comply with the condition never became the
owner of it.
AS TO THE RECOGNITION OF ILLEGITIMATE
CHILD: from the date of recognition of the child What if it was sold to an innocent purchaser?
The donor will run after the done
AS TO ADOPTION: from the period of filing the
petition for adoption Prescriptive period: 4 years from the time of
non-compliance; may be transmitted to the
AS TO APPEARANCE OF THE CHILD BELIEVED TO heir. It is transmissible.
BE DEAD: from the time the information about
his existence was received Art. 765. The donation may also be revoked
at the instance of the donor, by reason of
Rule in case two cause occur: ingratitude in the following cases:
-the reckoning point is the period of the first
cause (1) If the donee should commit some offense
against the person, the honor or the property
Is the right of action transmissible? of the donor, or of his wife or children under
Yes, provided the donor dies with the 4-year his parental authority;
period of prescription.
(2) If the donee imputes to the donor any
criminal offense, or any act involving moral
Art. 764. The donation shall be revoked at turpitude, even though he should prove it,
the instance of the donor, when the donee unless the crime or the act has been
fails to comply with any of the conditions committed against the donee himself, his wife
which the former imposed upon the latter. or children under his authority;

In this case, the property donated shall be (3) If he unduly refuses him support when the
returned to the donor, the alienations made by donee is legally or morally bound to give
the donee and the mortgages imposed thereon support to the donor.
by him being void, with the limitations
established, with regard to third persons, by *Does not apply to suspensive condition.
the Mortgage Law and the Land Registration
laws. Are these exclusive?
Yes. Only these acts will cause the revocation of
What is the remedy of the donor when the the donation.
done failed to comply with the condition G.R.: Donation is revocable on the ground of
imposed? ingratitude of the done except in:
The remedy of the donor is to file an action for 1. donation mortis causa
the revocation of the donation on the ground of 2. onerous donation

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*If there is no reaction or act of revocation on


PARAGRAPH 1: ingratitude done, it is still a valid donation.
- Criminal conviction is not necessary Estoppel.
- It is proved by the filing of the action for
revocation (mere preponderance of Art. 767. In the case referred to in the first
evidence) paragraph of the preceding article, the donor
Illustration: shall have a right to demand from the donee
A, the donee is married to B. C donated a car to the value of property alienated which he
A. B utter libelous remark against C. Is it a cannot recover from third persons, or the sum
ground? for which the same has been mortgaged.
No, it must be committed by the donee himself.
The act of ingratitude is a personal matter The value of said property shall be fixed as of
between the donee and donor. the time of the donation.
Rule:
What if despite the act of ingratitude against Alienations and mortgages effected BEFORE the
the donor, te donor did not revoke the notation of complaint for revocation:
donation, what is the effect of that to the alienations or mortgages are valid
donation?
It is still valid, it only means the donor pardoned Alienations and mortgages made AFTER the
the donee. notation of complaint for revocation:
alienations or mortgages are void
A donated a car to B who utter a libelous
remark to A’s daughter who is 25 years old, Illustration:
married. Is it a ground? A give B a parcel of land. B sold to C. B
No. The law provides those under his parental committed an act of ingratitude to A, the donor.
authority, those who are not yet emancipated. The donor filed an action for revocation of the
donation on October 4, 2010. The sale was
PARAGRAPH 2: executed o September 30, 2010. What is the
The imputation must be against the donor, his effect of the filing of the action which is
spouse, children under his parental authority, if annotated to the Registry of Deed to the sale?
imputation is made against the donee himself The annotation for action of the revocation of
or the spouse or children of the donee, it is not donation which was made after the sale does
a ground for the revocation. not make the sale of the property donated void.

PARAGRAPH 3: What then is the remedy of the Donor?


The refusal must be unjustified, meaning it is his It is still a ground for the revocation of the
legal or moral obligation but unjustly refuse to donation, and the law grant the donor the right
comply with it. to demand from the done the value of the
property at the time of the perfection of he
Art. 766. Although the donation is revoked donee, which he can no longer recover from the
on account of ingratitude, nevertheless, the third person.
alienations and mortgages effected before the
notation of the complaint for revocation in the What if the sale is made October 10, 2010
Registry of Property shall subsist. instead of September 30, 2010?
The sale will no be void since it was made after
the annotation. The remedy of the donor is :
1. Nullification of the sale

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2. Property must be reverted back to the *Money? Fruits? Legal interest 6%


donor
Art. 770. This action shall not be transmitted
Art. 768. When the donation is revoked for to the heirs of the donor, if the latter did not
any of the causes stated in article 760, or by institute the same, although he could have
reason of ingratitude, or when it is reduced done so, and even if he should die before the
because it is inofficious, the donee shall not expiration of one year.
return the fruits except from the filing of the
complaint. Neither can this action be brought against the
heir of the donee, unless upon the latter's
What must be returned after the revocation of death the complaint has been filed.
donation? If the ground for the revocation of the donation
As to what must be returned to the donor by is because of ingratitude, the right to file an
the donee after the revocation of the donation action is intransmissible, even if the donor dies
depends upon the cause of revocation: even before the lapse of 1 year
Reason: the act of ingratitude is
FOR NON-COMPLIANCE OF THE CONDITION personal between the donor and donee
IMPOSED:
- Property XPN:
- Fruits from the time of non-compliance - if he died before the lapse of one year
of the condition without knowing the act of ingratitude
made against him
BASED ON ART 760, ACT OF INGRATITUDE OR - if the action has been brought already
INOFICIOUS: and before the case is terminated, the
- Property donor died, the heir may continue the
- Fruits from the time of filing the action case
of revocation May the action for revocation of donation be
filed against the heir of donee?
What if the donated thing is a money? No. the act of ingratitude is personal between
- The money the donee and doner, being so, it cannot be
- The fruit will be the legal interest of 6% filed against the heir of the donee. In the the
event the action has already been filed and the
Art. 769. The action granted to the donor by donee died, the heir my be substituted as
reason of ingratitude cannot be renounced in parties, but to file it originally against the heir,
advance. This action prescribes within one notwithstanding death of the donee is not
year, to be counted from the time the donor allowed.
had knowledge of the fact and it was possible
for him to bring the action. MURDER IS THE INGRATITUDE WHICH CAUSED
THE DONOR’S DEATH. CAN HIS HEIRS FILE FOR
Is there an advance renunciation? ITS REVOCATION?
None. The law allows the donor to revoke the Yes, because it is the cause of the death of the
donation he made, based on the ingratitude of donor.
the donee but he is not allowed to make a
renunciation of actions to revoke in advance. WHO WILL BE ENTITLED TO THE FRUITS OF THE
PROPERTYS IN CASE OF EXCESSIVE DONATION?
Prescriptive period on the ground of
ingratitude: 1 year

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Lifetime of donor, donee. Death of donors, heirs sufficient to cover all of them, those of the
of donors. Since revocation only takes effect more recent date shall be suppressed or
upon death of donor. reduced with regard to the excess.

Art. 771. Donations which in accordance with rule if disposable donation cannot afford 2 or
the provisions of article 752, are inofficious, more donation:
bearing in mind the estimated net value of the 1. preference is given to earlier made.; the
donor's property at the time of his death, shall latter donations must be dropped first
be reduced with regard to the excess; but this XPN: wedding gifts
reduction shall not prevent the donations from
taking effect during the life of the donor, nor 2. if the donations were perfected at the
shall it bar the donee from appropriating the same time:
fruits. - the reduction must be proportionate

For the reduction of donations the provisions Grounds for the reduction of donation:
of this Chapter and of articles 911 and 912 of 1. the donor did not leave sufficient
this Code shall govern. property for his own support and that
of his family
Art. 772. Only those who at the time of the 2. Art 760
donor's death have a right to the legitime and 3. Inofficious donation
their heirs and successors in interest may ask 4. Donation made in fraud of creditors (
for the reduction or inofficious donations. amount of judgment is less than the
disposable free portion)
Those referred to in the preceding paragraph
cannot renounce their right during the lifetime Ground for the suppression of donation:
of the donor, either by express declaration, or 1. Totally inofficious
by consenting to the donation. 2. Non-compliance of condition
3. Ingratitude of the donee
The donees, devisees and legatees, who are 4. Donation is in fraud of creditor (the
not entitled to the legitime and the creditors amount of judgment is more than the
of the deceased can neither ask for the DFP)
reduction nor avail themselves thereof.
What is the status of the inofficious donation?
It is void up to the extent of the excess.

Who has the right to file an action?


Only the compulsory heirs.

Are creditors allowed to file an action for being


excessive?
No. he can only file an action to annul the
donation on the ground that it was made with
fraud.
Prescriptive period: 4 years

Art. 773. If, there being two or more


donations, the disposable portion is not

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