PROPERTY

Finals Reviewer

CHAPTER 1 Art. 614. Servitudes may also be established for the benefit of
EASEMENTS IN GENERAL a community, or of one or more persons to whom the
encumbered estate does not belong. (531)
Easement vs. Servitude
EASEMENT SERVITUDE Personal Easement vs. Usufructuary
Name used in common law Used in civil law countries PERSONAL EASEMENT USUFRUCTUARY
countries Cannot be alienated Generally can be alienated
One form of servitude Broader concept The use is specifically The use has a broader scope,
Always predial or real (in favor Refers to a predial or real designated and in general comprehends
of another realty) easement upon one hand, or to ALL the possible uses of the
a personal easement upon the thing
other hand
Art. 615. Easements may be continuous or discontinuous,
Note: as used in the Civil Code, however, easement is equivalent apparent or nonapparent.
to servitude. Continuous easements are those the use of which is or may
be incessant, without the intervention of any act of man.
Easement vs. Lease Discontinuous easements are those which are used at
EASEMENT LEASE intervals and depend upon the acts of man.
Real right only when it is Always a real right (whether Apparent easements are those which are made known and
registered or when lease of real real or personal easement) are continually kept in view by external signs that reveal the
property exceeds one year use and enjoyment of the same.
There is rightful and limited use There is rightful limited use Nonapparent easements are those which show no external
and possession WITHOUT WITHOUT ownership or indication of their existence. (532)
ownership possession
Continuous - those the use of which is or may be incessant,
May involve real or personal Refer only to immovalbes
without the intervention of any act of man
property
Discontinuous – those which are used at intervals and depend
upon the acts of man
Q: what is the effect of acknowledgment of Easement?
Apparent – those which are made known and are continually kept
A: it is an admission that the property belongs to another.
in view by external signs that reveal the use and enjoyment of the
same
SECTION 1. - Different Kinds of Easements
Non-apparent – those which show no external indication of their
existance
Art. 613. An easement or servitude is an encumbrance
imposed upon an immovable for the benefit of another
Continuous and Discontinuous Easement:
immovable belonging to a different owner.
1. The distinction refers only to the EXERCISE of the servitude
The immovable in favor of which the easement is established
and not THE ESSENCE, because servitude exist continuously,
is called the dominant estate; that which is subject thereto,
whether it is being used or not e.g. right of aqueduct, right to
the servient estate. (530)
support a beam on another’s wall.
2. Discontinuous Easements e.g. right of way, the very exercise of
EASEMENT/SERVITUDE – real right constituted on the corporeal
the servitude depends upon the act of man in passing over
immovable property of another, by virtue of w/c the owner of the
another’s property.
latter has to refrain from doing or to allow that someone do
something on his property, for the benefit of another Art. 616. Easements are also positive or negative.
thing/person. A positive easement is one which imposes upon the owner of
*a limitation of ownership and a restriction on the enjoyment of the servient estate the obligation of allowing something to be
one’s own property.
done or of doing it himself, and a negative easement, that
which prohibits the owner of the servient estate from doing
CHARACTERISTICS something which he could lawfully do if the easement did not
1. Real right exist. (533)
2. Imposed only on the property of another
3. Produces a limitation on ownership but the ownership of Art. 617. Easements are inseparable from the estate to which
the servient tenement is unimpaired [it must give some they actively or passively belong. (534)
positive enjoyment/benefit to the dominant tenement]
4. Inseparable from the tenements to w/c it is
CONSEQUENCES OF INSEPARABILITY
actively/passively attached
1. Easement cannot be sold or donated or mortgage
5. Can only exist between neighboring tenements
independently of the immovable to which they are
attached (once easement is granted, it means such
Dominant Estate – the immovable in favor of which the easement
easement refers to a particular parcel of land.
is established
2. Registration of the dominant estate under the Torrens
Servient Estate – that which is subject thereto (ex. Where the
system without the registration of the voluntary
right of way is constituted)
easement in its favor, does not extinguish the
easement; but such registration is necessary for the
Note: where the easement may be established on any of several
servient estate. Actual knowledge of third persons is
tenements surrounding the dominant estate, the one where the
equivalent to registration in that if they have actual
way is SHORTEST and will cause the LEAST damage should be knowledge of the existence of the easement, they are
chosen. However, if these two circumstances do not concur in a bound by the same, even though NO REGISTRATION
single tenement, the way which will cause the least damage has been made
should be used, even if it will not be the shortest (Almendras vs.
CA) Note: Easements shall continue to subsist and shall be held to
pass with the title of ownership until RESCINDED or

1|Page
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
 PROPERTY
Finals Reviewer
EXTINGUISHED by virtue of the REGISTRATION OF THE
SERVIENT ESTATE, or in any other manner.
Art. 618. Easements are indivisible. If the servient estate is
divided between two or more persons, the easement is not
modified, and each of them must bear it on the part which
corresponds to him.
If it is the dominant estate that is divided between two or
more persons, each of them may use the easement in its
entirety, without changing the place of its use, or making it
more burdensome in any other way. (535)
Easements are indivisible:
If the servient estate is partitioned, the servitude continues upon
the portions upon which it was originally exercised.
If the dominant estate is divided into parts, there arise as many
new dominant tenements as there are parts, each owner
exercising the rights of the owner of a dominant tenement.
Art. 619. Easements are established either by law or by the
will of the owners. The former are called legal and the latter
voluntary easements. (536)
Easements are established either by law or by the will of
the owners.
Called LEGAL and VOLUNTARY easements
NO JUDICIAL EASEMENT:
Courts cannot create easement. They can only declare the
existence of one, if it exists, but cannot constitute it when none
existed before. They may only apply the law providing for legal
easements, or declare the existence of those created by the will of
the owners.
SECTION 2. - Modes of Acquiring Easements
Art. 620. Continuous and apparent easements are acquired
either by virtue of a title or by prescription of ten
years. (537a)
TITLE means the juridical acts which give rise to the servitude
e.g. law, donation, contracts, and wills. (Intestate succession
does NOT create an easement, for no act is involved)
Note: if easements are not both continuous and apparent, it can
only be acquired by TITLE (Article 622)
PRESCRIPTION:
Special Case of Prescription (10 years). It DOES NOT
REQUIRE good faith or just title. The general rules for acquisitive
prescription of ownership and other real rights do not apply to it.
BUT ADVERSE POSSESSION or EXERCISE OF THE EASEMENT
must be present.
Art. 621. In order to acquire by prescription the easements
referred to in the preceding article, the time of possession
shall be computed thus: in positive easements, from the day
on which the owner of the dominant estate, or the person
who may have made use of the easement, commenced to
exercise it upon the servient estate; and in negative
easements, from the day on which the owner of the dominant
estate forbade, by an instrument acknowledged before a
notary public, the owner of the servient estate, from
executing an act which would be lawful without the
easement. (538a)
HOW TO COMPUTE PRESCRIPTION:
POSITIVE EASEMENTS:
In positive easements, from the day on which the owner of the
dominant estate, or the person who may have made use of the
easement, commenced to exercise it upon the servient estate
NEGATIVE EASEMENTS:
2|Page
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
In negative easements, from the day on which the owner of the
dominant estate forbade, by an instrument acknowledged before
a notary public, the owner of the servient estate, from executing
an act which would be lawful without the easement. (E.G.
prohibition to build a building of higher elevation.)
[Examples provided: page 662 of PARAS]
Note: for negative easement, an oral prohibition is NOT sufficient,
nether was a mere private writing.
Q: who makes the notarial prohibition or who should commence
the exercise of the easement?
A: the dominant estate or anyone who desired to establish the
easement
CAN A RIGHT OF WAY BE ACQUIRED BY PRESCRIPTION?
NO.
1. Being an apparent but discontinuous easement, it cannot be
acquired by prescription.
BOGO-MEDELLIN MILLING CO., INC., VS.CA
“Under civil law and its jurisprudence, easements are either
continuous or discontinuous according to the manner they are
exercised, NOT ACCORDING TO THE PRESENCE OF APPARENT
SIGNS OR PHYSICAL INDICATIONS OF THE EXISTENCE OF SUCH
EASEMENTS. Thus, an easement is continuous if its use is, or may
be, incessant without the intervention of any act of man, like the
easement of drainage; and it is discontinuous if it is used at
intervals and depends on the act of man, like the easement of
right of way.”
“ITS USE OF THE RIGHT OF WAY, HOWEVER LONG, NEVER
RESULTED IN ITS ACQUISITION OF THE EASEMENT BECAUSE,
UNDER ARTICLE 622, THE DISCONTINUOUS EASEMENT OF A
RAILROAD RIGHT OF WAY CAN ONLY BE ACQUIRED BY TITLE
AND NOT BY PRESCRIPTION.”
Note: for purposes of prescription, there are negative easement
that may indeed be considered “apparent”, not because there are
visible signs of their existence but because of the making of a
notarial prohibition. The notarial prohibition makes apparent what
really is non-apparent
Art. 622. Continuous nonapparent easements, and
discontinuous ones, whether apparent or not, may be
acquired only by virtue of a title. (539)
Art. 623. The absence of a document or proof showing the
origin of an easement which cannot be acquired by
prescription may be cured by a deed of recognition by the
owner of the servient estate or by a final judgment. (540a)
This article refers only to the following easements:
o Continuous non-apparent
o Discontinuous easements (whether apparent or not)
Proof of said easements may be:
o By deed of recognition by the SERVIENT owner
o Final judgment (court’s declaration)
Art. 624. The existence of an apparent sign of easement
between two estates, established or maintained by the owner
of both, shall be considered, should either of them be
alienated, as a title in order that the easement may continue
actively and passively, unless, at the time the ownership of
the two estates is divided, the contrary should be provided in
the title of conveyance of either of them, or the sign aforesaid
should be removed before the execution of the deed. This
provision shall also apply in case of the division of a thing
owned in common by two or more persons. (541a)
Article speaks of APPARENT VISIBLE easements
Sign of easement refers to an OUTWARD INDICATION that the
easement exists
 PROPERTY
Finals Reviewer
When either of the estates are alienated, these signs are
considered a title in order that the easement may continue
actively and passively, unless the contrary should be provided in
the title of conveyance of either estates, or the sign aforesaid
should be removed before the execution of the deed.
Rules (summary outline)
a. Before alienation, there is no true easement
b. After alienation
a. There arises an easement IF the sign continues
to remain there UNLESS there is a contrary
agreement
b. There is no Easement if the sign is REMOVED
or if there is an agreement to this effect
Note: the article does not apply in case both estates or both
portions are alienated to the SAME owner, for then there would be
no true easement unless there is a further alienation, this time, to
DIFFERENT owners.
Art. 625. Upon the establishment of an easement, all the
rights necessary for its use are considered granted. (542)
Necessary rights include repair, maintenance, accessory easement
Art. 626. The owner of the dominant estate cannot use the
easement except for the benefit of the immovable originally
contemplated. Neither can he exercise the easement in any
other manner than that previously established. (n)
This article was made precisely to PREVENT an increase in the
burden or a different form of exercising the easement
SECTION 3. - Rights and Obligations
of the Owners of the Dominant and Servient Estates
Art. 627. The owner of the dominant estate may make, at his
own expense, on the servient state any works necessary for
the use and preservation of the servitude, but without
altering it or rendering it more burdensome.
For this purpose he shall notify the owner of the servient
estate, and shall choose the most convenient time and
manner so as to cause the least inconvenience to the owner
of the servient estate. (543a)
Art. 628. Should there be several dominant estates, the
owners of all of them shall be obliged to contribute to the
expenses referred to in the preceding article, in proportion
to the benefits which each may derive from the work. Any
one who does not wish to contribute may exempt himself by
renouncing the easement for the benefit of the others.
If the owner of the servient estate should make use of the
easement in any manner whatsoever, he shall also be obliged
to contribute to the expenses in the proportion stated, saving
an agreement to the contrary. (544)
Art. 629. The owner of the servient estate cannot impair, in
any manner whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned, or
of the manner established for the use of the easement, the
same should become very inconvenient to the owner of the
servient estate, or should prevent him from making any
important works, repairs or improvements thereon, it may
be changed at his expense, provided he offers another place
or manner equally convenient and in such a way that no
injury is caused thereby to the owner of the dominant estate
or to those who may have a right to the use of the
easement. (545)
Art. 630. The owner of the servient estate retains the
ownership of the portion on which the easement is
established, and may use the same in such a manner as not to
affect the exercise of the easement. (n)
3|Page
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
Rights of the Dominant Estate
1. To exercise the easement and all necessary rights for its
use including accessory easement (art. 625)
2. To make on the serivent estate all works necessary for
the USE and PRESERVATION of the servitude, BUT (art.
627)
1. Must be at his own expense
2. He must NOTIFY the servient owner
3. Select convenient time and manner
4. He must NOT alter the easement NOR render it
MORE BURDENSOME
3. To ask for a MANDATORY INJUNCTION to prevent
impairment or obstruction in the exercise of the
easement
4. To RENOUNCE totally the easement if he desires
exemption from the contribution to expenses (art. 628)
Obligations of the Dominant Estate
a. He cannot alter the easement (art. 627)
b. He cannot make it more burdensome (art. 627)
1. Thus he cannot use the easement except for
movable originally contemplated (art. 626)
2. In the easement of right of way, he cannot
increase the agreed width of the path, nor
deposit soil or materials outside of the
boundaries agreed upon
c. If there are several dominant estates, each must
contribute for the expenses in proportion to the
BENEFITS received by each estate (not value of estate)
Rights of the Servient Estate
a. To retain ownership and possession of the portion of his
land affected by the easement (art. 630) even if
indemnity for the right is given, unless contrary is
stipulated
b. To make USE of the easement, unless deprived by
stipulation (art. 630)
c. To CHANGE THE LOCATION OF A VERY INCONVENIENT
EASEMENT provided that an equally convenient
substituted is made, without injury to the dominant
estate (art. 629)
Obligations of the Servient Estate
a. He cannot impair the use of the easement (art. 629)
b. He must contribute to the expenses in case he uses the
easement, unless there is a contrary stipulation (art.
628)
c. In case of impairment, to restore conditions to the
status quo at his expense plus damages
d. To pay for the expenses incurred for the change of
location or form of the easement (art. 629)
SECTION 4. - Modes of Extinguishment of Easements
Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the
dominant and servient estates;
(2) By nonuser for ten years; with respect to discontinuous
easements, this period shall be computed from the day on
which they ceased to be used; and, with respect to
continuous easements, from the day on which an act
contrary to the same took place;
(3) When either or both of the estates fall into such condition
that the easement cannot be used; but it shall revive if the
subsequent condition of the estates or either of them should
again permit its use, unless when the use becomes possible,
sufficient time for prescription has elapsed, in accordance
with the provisions of the preceding number;
(4) By the expiration of the term or the fulfillment of the
condition, if the easement is temporary or conditional;
(5) By the renunciation of the owner of the dominant estate;
 PROPERTY
Finals Reviewer
(6) By the redemption agreed upon between the owners of
the dominant and servient estates.(546a)
Easements are extinguished by:
Merger
- Merger must be absolute, complete and not temporary
- Note that in a pacto de retro sale, the merger is merely
temporary thus will not extinguish the easement
Non-user for 10 years
o Non-user refers to an easement that has once been used
because one cannot discontinue using what one has
never used
o Note: the right to claim or exercise some legal
easements never prescribe, since they are founded on
necessity
o Use by at least one co-owner of the dominant estate of
the easement PREVENTS prescription as to the other
inasmuch as an easement is indivisible
o From what time to compute?
 if a discontinuous easement - from the time it
ceased to be used
 if a continuous easement – from the day on
which an act contrary to the same took place
Bad Condition of the Tenement or Impossibility of Use
o This merely SUSPENDS (unless extinguishment is
caused by the necessary period for non-user) since
POSSIBILITY OF USE REVIVES the easement
Expiration of the Term or Fulfillment of the Condition
o Easement is temporary or conditional
Renunciation (Waiver) by the Owner of the Dominant
Estate
o Renunciation must be express, clear, and specific
(particularly true for discontinuous easements)
Redemption Agreed Upon between owners of the estates
o This is voluntary redemption, existing because of an
express stipulation
o Stipulation may provide conditions under which the
easement would be extinguished
[other causes for extinguishment of easement not expressly
mentioned in the code: page 681 of PARAS]
Art. 632. The form or manner of using the easement may
prescribe as the easement itself, and in the same way. (547a)
Art. 633. If the dominant estate belongs to several persons in
common, the use of the easement by any one of them
prevents prescription with respect to the others. (548)
VILLARICO V SARMIENTO
A lot on which stairways were built for the use of the people as
passageway to the highway is property of public dominion. Public
use is “use is not confined to privileged individuals, but is open to
the indefinite public.”
Property of public dominion is outside the commerce of men and
hence cannot be burdened by any voluntary easement.
JABONETE V MONTEVERDE
Under the order, the right of way granted was expressly limited to
the plaintiffs and their “family, friends, drivers, servants and
jeeps.” The right acquired by plaintiffs, therefore, was a personal
servitude that inures to the benefit of whoever owns the dominant
estate. Hence, the refusal of the defendants to extend the said
easement to the plaintiffs’ successor-in –interest was not a
defiance of the court order, since they had no right thereunder.
ALCANTARA V RETA, JR.
Petitioner Roble was allowed to construct his house on the land
because it would facilitate his gathering of tuba.
4|Page
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
Where a person is allowed to construct his house on the land of
another to facilitate his gathering of fruits, this would be in the
nature of a personal easement under Art. 61 of the NCC.
NORTH NEGROS SUGAR V HIDALGO
This case is a case of easement of way voluntarily constituted IFO
a community. There is nothing in the constitution of this
easement in violation of law or public order, except perhaps that
the right to open roads and charge passage fees therefor is the
State’s by right of sovereignty and may not be taken over by a
private individual without the requisite permit. This, however,
would affect the right of the plaintiff to charge tolls, but not that
of the defendant or of any other person to make use of the
easement.
The cases of Roman Catholic Archbishop of Manila v Roxas and
Cuayong v Benedicto are not controlling in this case. Here, the
defendant’s contention is, that while the road in question remains
open to the public, he has a right to its use upon paying the
passage fees required by the plaintiff. Indeed, the latter may not
close it at its pleasure, as no period has been fixed when the
easement was voluntarily constituted, but while the road is
thrown open, the plaintiff may not capriciously exclude the
defendant from its use.
VALISNO V ADRIANO
Existence of an apparent sign of easement between 2 estates,
maintained by the owner of both, shall be considered as title
unless otherwise at the time the ownership of the 2 estates is
divided, the contrary should be provided in the title of conveyance
of either of them or the sign aforesaid should be removed before
execution of the deed. Hence, the existence of the irrigation canal
on defendant’s land for the passage of water from the Pampanga
River to Honorata’s land prior to and at the time of the sale of her
land to the plaintiff was equivalent to a title for the vendee of the
land to continue using it.
TANEDO V BERNAD
The alienation of the dominant and servient estates to different
persons is not one of the grounds for the extinguishment of an
easement. On the contrary, the use of the easement is continued
by operation of law.
Absent a statement abolishing or extinguishing the easement of
drainage the use of the septic tank is continued by operation of
law. The new owners of the servient estate cannot impair the use
f the servitude.
No statement abolishing or extinguishing the easement of
drainage was mentioned in the deed f sale nor did Cardenas stop
the use of the drain pipe and septic tank by the occupants before
he sold said lot to Tanedo. Hence, the use of the septic tank
continued by operation of law. Accordingly, new owners of the
servient estate cannot impair in any manner the use of the
servitude.
VALDERRAMA V NORTH NEGROS SUGAR CO.
In a contract establishing an easement of way IFO a sugar
company for the construction of a railroad for the transportation
of sugar cane from the servient estates to the mill of said
company, it is contrary to the nature of the contract to pretend
that only sugar cane grown in the servient estates can be
transported on said railroad, because it is a well-settled rule that
things serve their owner by reason of ownership and not by
reason of easement. That is to say, that an easement having been
established IFO the sugar company, the owners of the servient
estates cannot limit its use to the transportation of their cane,
there being no express stipulation to that effect, for then there
 PROPERTY
Finals Reviewer
would be no need of the easement, since they could use their
estates as owners thereof.
The prohibition of the law against alteration of easement, making
it more burdensome, is not violated by causing to pass thereon
wagons carrying goods pertaining to persons who are not the
owners of the servient estates and at all times the person entitled
to the easement may please for in such a case the easement
continues to be the same. Said legal prohibition has reference to
that case wherein extending the line or repairing or using the
same, a larger area of land is occupied, or excavations or
materials deposited outside of the area occupied by the
easement.
GOLDCREST REALTY CORP. V CYPRESS GARDENS
CONDOMINIUM CORP.
The owner of the dominant estate cannot violate any of the
following prescribed restrictions on its rights on the servient
estate, to wit: (1) it can only exercise rights necessary for the use
of the easement; (2) it cannot use the easement except for the
benefit of the immovable originally contemplated; (3) it cannot
exercise the easement in any other manner that that previously
established; (4) it cannot construct anything on it which is not
necessary for the use and preservation of the easement; (5) it
cannot alter or make the easement more burdensome; (6) it must
notify the servient estate owner of its intention to make necessary
works on the servient estate, and (7) it should choose the most
convenient time and manner to build said works so as to cause
the least convenience to the owner of the servient estate. Any
violation of the above constitutes impairment of the easement.
SOLID MANILA V BIO HONG TRADING
Servitudes are merely accessories to the tenements of which they
form part, and even if they are possessed of a separate juridical
existence, they cannot be alienated from the tenement or
mortgaged separately.
The vendee of real property in which a servitude or easement
exists, did not acquire the right to close that servitude or put up
obstructions thereon, to prevent the public from using it.
CHAPTER 2
LEGAL EASEMENTS
SECTION 1. - General Provisions
Art. 634. Easements imposed by law have for their object
either public use or the interest of private persons. (549)
o Legal Easements Defines: imposed by law and which
have for their object either
 Public use
 Or the interest of private persons
Different Legal Easements:
1. Easement Relating to waters
2. Right of way
3. Party wall
4. Light and View
5. Drainage
6. Intermediate Distances
7. Easement against nuisance
8. Lateral and Subjacent Support
Art. 635. All matters concerning easements established for
public or communal use shall be governed by the special laws
and regulations relating thereto, and, in the absence thereof,
by the provisions of this Title. (550)
Art. 636. Easements established by law in the interest of
private persons or for private use shall be governed by the
5|Page
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
provisions of this Title, without prejudice to the provisions of
general or local laws and ordinances for the general welfare.
These easements may be modified by agreement of the
interested parties, whenever the law does not prohibit it or
no injury is suffered by a third person. (551a)
o Provides for how legal easements for Private Interests
are governed:
a. Agreement of interested parties
b. In default of a, general or local laws and ordinances
for the general welfare
c. In default of b, the Civil Code
SECTION 2. - Easements Relating to Waters
Art. 637. Lower estates are obliged to receive the waters
which naturally and without the intervention of man descend
from the higher estates, as well as the stones or earth which
they carry with them.
The owner of the lower estate cannot construct works which
will impede this easement; neither can the owner of the
higher estate make works which will increase the
burden. (552)
What Lower Estates are Obliged to Receive
1. water which naturally and without the intervention of
man descends from the higher estates
2. the stones and earth carried by the waters
Q: what is the duty of the Servient Estate?
A: the owner cannot construct works that would impede the
easement nor can he enclose his land by diteches or fences which
would impede the flow. But he may REGULATE and CONTROL the
descent of the water
Duties of the Dominant Estate
a. he cannot make works which will increase the burden
b. but he may construct works preventing erosion
c. if descending waters are result of artificial development
pr proceed from industrial establishment the owner of
the lower estate shall be entitled to compensation for his
loss or damage
Note: Article 637 does not speak of any indemnity.
Art. 638. The banks of rivers and streams, even in case they
are of private ownership, are subject throughout their entire
length and within a zone of three meters along their margins,
to the easement of public use in the general interest of
navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable rivers
are, furthermore, subject to the easement of towpath for the
exclusive service of river navigation and floatage.
If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
The Easements allowed:
o On banks of rivers (whether private or public; whether
navigable or not), a public easemtn for:
a. Navigation
b. Floatage
c. Fishing
d. Salvage
o On banks of navigable or floatable rivers; also
the easement of TOP PATH – for the exclusive
service of river navigation and floatage
Payment of Indemnity
- If the land be f public ownership – no indemnity
- If the land be of private ownership – indemnity
Width of Zone Burdened
 PROPERTY
Finals Reviewer
o 3 meters along the river margins, for navigation,
floatage, fishing, salvage
o Tow paths: 2 meter for animals; 1 meter for pedestrians
Art. 639. Whenever for the diversion or taking of water from
a river or brook, or for the use of any other continuous or
discontinuous stream, it should be necessary to build a dam,
and the person who is to construct it is not the owner of the
banks, or lands which must support it, he may establish the
easement of abutment of a dam, after payment of the proper
indemnity. (554)
Art. 640. Compulsory easements for drawing water or for
watering animals can be imposed only for reasons of public
use in favor of a town or village, after payment of the proper
indemnity. (555)
Easements for Drawing Water or for Watering Animals:
o Can be imposed only for reasons of PUBLIC USE
o They must be in favor of a TOWN or VILLAGE
o Proper indemnity must be made
Art. 641. Easements for drawing water and for watering
animals carry with them the obligation of the owners of the
servient estates to allow passage to persons and animals to
the place where such easements are to be used, and the
indemnity shall include this service. (556)
Art. 642. Any person who may wish to use upon his own
estate any water of which he can dispose shall have the right
to make it flow through the intervening estates, with the
obligation to indemnify their owners, as well as the owners
of the lower estates upon which the waters may filter or
descend. (557)
Art. 643. One desiring to make use of the right granted in the
preceding article is obliged:
(1) To prove that he can dispose of the water and that it is
sufficient for the use for which it is intended;
(2) To show that the proposed right of way is the most
convenient and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the
manner determined by the laws and regulations. (558)
Provides for the 4 requisites for the Legal Easements of Aqueduct:
a. To prove that he can dispose of the water and
b. that it is sufficient for the use for which it is intended;
c. To show that the proposed right of way is the most
convenient and the least onerous to third persons;
d. To indemnify the owner of the servient estate in the
manner determined by the laws and regulations.
Art. 644. The easement of aqueduct for private interest
cannot be imposed on buildings, courtyards, annexes, or
outhouses, or on orchards or gardens already existing. (559)
Art. 645. The easement of aqueduct does not prevent the
owner of the servient estate from closing or fencing it, or
from building over the aqueduct in such manner as not to
cause the latter any damage, or render necessary repairs and
cleanings impossible. (560)
Art. 646. For legal purposes, the easement of aqueduct shall
be considered as continuous and apparent, even though the
flow of the water may not be continuous, or its use depends
upon the needs of the dominant estate, or upon a schedule of
alternate days or hours. (561)
Art. 647. One who for the purpose of irrigating or improving
his estate, has to construct a stop lock or sluice gate in the
bed of the stream from which the water is to be taken, may
demand that the owners of the banks permit its construction,
6|Page
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
after payment of damages, including those caused by the new
easement to such owners and to the other irrigators. (562)
Requisites:
o Purpose must be for irrigation or improvement
o The construction must be on the estate of another
o Damages must be paid
o Third person should not be prejudiced
Art. 648. The establishment, extent, form and conditions of
the servitudes of waters, to which this section refers, shall be
governed by the special laws relating thereto insofar as no
provision therefor is made in this Code. (563a)
SECTION 3. - Easement of Right of Way
EASEMENT OF RIGHT OF WAY is the easement or privilege by
which one person or a particular class of persons is allowed to
pass over another’s land, usually thru one particular path or line
Art. 649. The owner, or any person who by virtue of a real
right may cultivate or use any immovable, which is
surrounded by other immovables pertaining to other
persons and without adequate outlet to a public highway, is
entitled to demand a right of way through the neighboring
estates, after payment of the proper indemnity.
Should this easement be established in such a manner that
its use may be continuous for all the needs of the dominant
estate, establishing a permanent passage, the indemnity shall
consist of the value of the land occupied and the amount of
the damage caused to the servient estate.
In case the right of way is limited to the necessary passage
for the cultivation of the estate surrounded by others and for
the gathering of its crops through the servient estate without
a permanent way, the indemnity shall consist in the payment
of the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts. (564a)
Not only the owner of the dominant estate may demand the right
of way but also all persons who by virtue of a real right may
cultivate and use the tenement.
*Lessee cannot demand this right - his action is against the lessor
who is bound to maintain him in the enjoyment of the property.
REQUISITES:
1. Dominant estate is surrounded by other immovables and
has no adequate outlet to a public highway
2. Payment of proper indemnity
3. Isolation not due to acts of proprietor of dominant estate
4. ROW claimed is at the point least prejudicial to the
servient estate and distance from the dominant estate to
the public highway is the shortest
There must be real, not a fictitious or artificial necessity – MERE
INCONVENIENCE for the dominant estate is nor enough.
BUT if access to the highway is difficult or dangerous to use or
grossly insufficient – ROW may be asked [i.e. access is thru
dangerous waterway or a steep cliff/incline]
ROW must be sufficient for the purpose and needs of the
dominant owner.
There is no alienation even with payment of the value of the land.
RAMOS V GATCHALIAN REALTY
"MERE CONVENIENCE for the dominant estate is NOT ENOUGH to
serve as its basis. To justify the imposition of this servitude, there
must be a real, not a fictitious or artificial, necessity for it."
The Proper Indemnity
 PROPERTY
Finals Reviewer
1. If passage is permanent, pay the value of land occupied
by the path plus damages
2. If temporary, pay for the damages caused
Art. 650. The easement of right of way shall be established at
the point least prejudicial to the servient estate, and, insofar
as consistent with this rule, where the distance from the
dominant estate to a public highway may be the
shortest. (565)
LEAST PREJUDICIAL > SHORTEST DISTANCE
Art. 651. The width of the easement of right of way shall be
that which is sufficient for the needs of the dominant estate,
and may accordingly be changed from time to time. (566a)
it is the needs the of the dominant estate which determine the
width of the passage.
Art. 652. Whenever a piece of land acquired by sale,
exchange or partition, is surrounded by other estates of the
vendor, exchanger, or co-owner, he shall be obliged to grant
a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified
by the donee for the establishment of the right of way. (567a)
Provides for the rule if land of Vendor (exchanger or co-owner or
donor) is ISOLATED from the HIGHWAY – shall be obliged to grant
right of way to buyer (etc.) without indemnity
In case of a simple donation, the donor shall be indemnified by
the done for the establishment of the right of way
Art. 653. In the case of the preceding article, if it is the land
of the grantor that becomes isolated, he may demand a right
of way after paying a indemnity. However, the donor shall
not be liable for indemnity. (n)
Rules of 652 and 653 consolidated:
a. If the ENCLOSING estate is that of the grantor (but NOT
DONOR), the grantee does not pay indemnity for the
easement
b. If the ENCLOSED estate is that of the grantor (but NOT
DONOR), the grantor must pay indemnity
Art. 654. If the right of way is permanent, the necessary
repairs shall be made by the owner of the dominant estate. A
proportionate share of the taxes shall be reimbursed by said
owner to the proprietor of the servient estate. (n)
Provides for the rules of ownership of, and repairs and Taxes on,
the path:
o Even though permanent, the path belongs to the servient
estate, and he pays ALL the taxes
o BUT the dominant estate:
 Should pay for repairs
 Should pay proportionate share of taxes to the servient
estate (“proportionate” means the WHOLE tax for the
whole estate)
Art. 655. If the right of way granted to a surrounded estate
ceases to be necessary because its owner has joined it to
another abutting on a public road, the owner of the servient
estate may demand that the easement be extinguished,
returning what he may have received by way of indemnity.
The interest on the indemnity shall be deemed to be in
payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened
giving access to the isolated estate.
In both cases, the public highway must substantially meet the
needs of the dominant estate in order that the easement may
be extinguished. (568a)
7|Page
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
Provides for causes for extinguishment of the Easement of Right
of way:
o Opening of a new road
o Joining the dominant estate to another (that is the latter
becomes also the property of the dominant owner) which
abuts, and therefore has access to the public highway.
But the new access must be adequate and convenient
This article applied only to the LEGAL or COMPULSORY easement
of right of way, NOT to a voluntary one.
Note: the extinguishment is NOT automatic. Servient owner MAY
demand. If he chooses not to demand, the easement remains and
he has no duty to refund the indemnity
Extinguishment is not ipso jure – owner of the servient estate
must ask for such extinguishment.
*return of the indemnity is conditioned on extinguishment.
Art. 656. If it be indispensable for the construction, repair,
improvement, alteration or beautification of a building, to
carry materials through the estate of another, or to raise
therein scaffolding or other objects necessary for the work,
the owner of such estate shall be obliged to permit the act,
after receiving payment of the proper indemnity for the
damage caused him. (569a)
This may be demanded by the owner and the usufructuary.
Article speaks of temporary easement of right of way
Proper indemnity is nonetheless proper
The term Indispensable is not to be construed literally – the
causing of great inconvenience is sufficient
Art. 657. Easements of the right of way for the passage of
livestock known as animal path, animal trail or any other,
and those for watering places, resting places and animal
folds, shall be governed by the ordinances and regulations
relating thereto, and, in the absence thereof, by the usages
and customs of the place.
Without prejudice to rights legally acquired, the animal path
shall not exceed in any case the width of 75 meters, and the
animal trail that of 37 meters and 50 centimeters.
Whenever it is necessary to establish a compulsory easement
of the right of way or for a watering place for animals, the
provisions of this Section and those of Articles 640 and 641
shall be observed. In this case the width shall not exceed 10
meters. (570a)
Article speaks of right of way for the Passage of livestock
Maximum Width:
o Animal path – 75 meters
o Animal trail – 37 meters and 50 centimeters
o Cattle – 10 meters (unless vested rights had
been acquired to a greater width
Note: Cross reference this article to Articles 640 and 641
SECTION 4. - Easement of Party Wall
Art. 658. The easement of party wall shall be governed by the
provisions of this Title, by the local ordinances and customs
insofar as they do not conflict with the same, and by the rules
of co-ownership. (571a)
Party Wall defined
- This is a wall at the dividing line of estates
Q: Is such easement a case of Co-ownership or a real Easement?
A: Easement [ Manresa, De Diego, Castan, and Ricci]; Co-
Ownership [ Sanchez Roman, Valverde, etc]
This co-ownership is a special class in itself [ as shown by the
following: 1) co-ownership is indivisible 2) part pertaining to the
co-owner can be materially designated 3) rights of a co-owner
 PROPERTY
Finals Reviewer
greater than those of an ordinary co-owner, such as with respect
to increasing the height of the wall] . This is a kind of
COMPULSORY KIND OF CO-OWNERSHIP.
It is a servitude because, in an ordinary co-ownership [ none of
the co-owners may do anything on the common property for his
own exclusive benefit, but in a party wall, there is no limitation
upon the juridical action of the owners].
Art. 659. The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign, or proof to
the contrary:
(1) In dividing walls of adjoining buildings up to the point of
common elevation;
(2) In dividing walls of gardens or yards situated in cities,
towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural lands. (572)
Art. 660. It is understood that there is an exterior sign,
contrary to the easement of party wall:
(1) Whenever in the dividing wall of buildings there is a
window or opening;
(2) Whenever the dividing wall is, on one side, straight and
plumb on all its facement, and on the other, it has similar
conditions on the upper part, but the lower part slants or
projects outward;
(3) Whenever the entire wall is built within the boundaries of
one of the estates;
(4) Whenever the dividing wall bears the burden of the
binding beams, floors and roof frame of one of the buildings,
but not those of the others;
(5) Whenever the dividing wall between courtyards, gardens,
and tenements is constructed in such a way that the coping
sheds the water upon only one of the estates;
(6) Whenever the dividing wall, being built of masonry, has
stepping stones, which at certain intervals project from the
surface on one side only, but not on the other;
(7) Whenever lands inclosed by fences or live hedges adjoin
others which are not inclosed.
In all these cases, the ownership of the walls, fences or
hedges shall be deemed to belong exclusively to the owner of
the property or tenement which has in its favor the
presumption based on any one of these signs. (573)
The enumeration in this article is not exclusive but merely
illustrative – the courts should have ample discretion to
appreciate the value of external sigs according to circumstances.
When there is a CONTRADICTION between the external sign and a
title to the wall, the TITLE MUST PREVAIL.
Art. 661. Ditches or drains opened between two estates are
also presumed as common to both, if there is no title or sign
showing the contrary.
There is a sign contrary to the part-ownership whenever the
earth or dirt removed to open the ditch or to clean it is only
on one side thereof, in which case the ownership of the ditch
shall belong exclusively to the owner of the land having this
exterior sign in its favor. (574)
The presumption of party wall applies to ditches and drains
opened between 2 estates
However, such presumption is rebuttable
Art. 662. The cost of repairs and construction of party walls
and the maintenance of fences, live hedges, ditches, and
drains owned in common, shall be borne by all the owners of
the lands or tenements having the party wall in their favor, in
proportion to the right of each.
Nevertheless, any owner may exempt himself from
contributing to this charge by renouncing his part-
ownership, except when the party wall supports a building
belonging to him. (575)
8|Page
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
Cost of repairs, cannot be imposed on all the co-owners of the
party wall when the defects were occasioned by only one owner
[i.e. where defect on one side is caused by animals kept therein it
is unfair to make the owner of the other tenement pay part of
cost].
Renunciation by a part owner is subject to the implied condition
that the co-owner in whose favor the abandonment is made shall
bear the charges of repairing and preserving the wall.
Renunciation cannot be resorted to by a co-owner to escape
liability for damages occasioned by his own fault.
Note: Renunciation of the share of one owner in the party wall
may be made, UNLESS:
a. The repair had already been contracted for and made
b. He still uses the wall
Requisites for the Renunciation of the Share
a. Must be total or complete
b. Must be made voluntary and with full knowledge of the
facts
c. Must be made before the expenses are incurred
d. Is made with the implied condition that the other owner
should make or pay for the repairs
e. Must be of both the share in the wall and the share in
the land, for the wall cannot be used without the land
Art. 663. If the owner of a building, supported by a party wall
desires to demolish the building, he may also renounce his
part-ownership of the wall, but the cost of all repairs and
work necessary to prevent any damage which the demolition
may cause to the party wall, on this occasion only, shall be
borne by him. (576)
Liability of the owner who demolishes his building is limited to the
damages which are simultaneous to or are occasioned
immediately by the demolition [Sanchez Roman].
Art. 664. Every owner may increase the height of the party
wall, doing at his own expense and paying for any damage
which may be caused by the work, even though such damage
be temporary.
The expenses of maintaining the wall in the part newly raised
or deepened at its foundation shall also be paid for by him;
and, in addition, the indemnity for the increased expenses
which may be necessary for the preservation of the party wall
by reason of the greater height or depth which has been given
it.
If the party wall cannot bear the increased height, the owner
desiring to raise it shall be obliged to reconstruct it at his
own expense and, if for this purpose it be necessary to make
it thicker, he shall give the space required from his own
land. (577)
Person rebuilding a common wall must exercise such reasonable
care as will render the inconvenience and loss to his neighbor as
small as practicable.
*adjoining owner is bound to bear the inconvenience and injury
caused by the work, without compensation, so far as they are
inseparable from the exercise of the right.
Article deals with the right to INCREASE the height of the party
wall. He who desires this:
a. Must do so at his own expense
b. Must pay the necessary damages caused, even if the
damage be temporary
c. Must bear the costs of maintenance of the portion
added
d. Must pay for the increased cost of preservation
e. Must reconstruct if original wall cannot bear the
increased height
 PROPERTY
Finals Reviewer
f. Must give the additional space (land) necessary, if
wall is to be thickened
Note: the one who desires for such will be the EXCLUSIVE owner
of the ADDITIONS unless article 665 is availed of.
Art. 665. The other owners who have not contributed in
giving increased height, depth or thickness to the wall may,
nevertheless, acquire the right of part-ownership therein, by
paying proportionally the value of the work at the time of the
acquisition and of the land used for its increased
thickness. (578a)
Provides for how the other owners may acquire part-ownership in
the additions:
The value of the additions at the time of acquisition by the
others (not at the time of construction) should be paid.
Art. 666. Every part-owner of a party wall may use it in
proportion to the right he may have in the co-ownership,
without interfering with the common and respective uses by
the other co-owners.(579a)
Each part owner can use the party wall only in proportion to his
interest [if x has 1/3 and Y has 2/3, interest in the PW, X can
insert beams in the wall up to 1/3 thickness and Y up to 2/3].
*this corresponds to the extent of liability for repairs and
construction in Art. 662
SECTION 5. - Easement of Light and View
Easement of Light “jus luminum” [e.g. Art. 669. When the
distances in Article 670 are not observed, the owner of a wall
which is not party wall, adjoining a tenement or piece of land
belonging to another, can make in it openings to admit light at
the height of the ceiling joist or immediately under the ceiling,
and of the size of thirty centimeters square, and, in every case,
with an iron grating imbedded in the wall and with a wire screen]
Easement of View “servidumbre prospectus” [e.g. as in the case
of full or regular windows overlooking adjoining estate.] “altius
non tollendi”- easement not to build higher for the purpose of
obstruction.
Art. 667. No part-owner may, without the consent of the
others, open through the party wall any window or aperture
of any kind. (580)
A part owner is not allowed, w/out the consent of the others, to
open a window or other aperture in the party wall [it would be an
invasion of the right of the other part owners, inasmuch as each
owner is entitled only to a proportional use of the party wall].
Note: Co-owner can close, UNLESS a sufficient time
prescription has elapsed.
Art. 668. The period of prescription for the acquisition of an
easement of light and view shall be counted:
(1) From the time of the opening of the window, if it is
through a party wall; or
(2) From the time of the formal prohibition upon the
proprietor of the adjoining land or tenement, if the window
is through a wall on the dominant estate. (n)
OPENING IN ONE’S OWN WALL – negative easement; requires
notarial prohibition for prescription to run
*owner of the servient estate is under no obligation whatsoever to
allow anything to be done on his tenement nor to do anything
there himself but is simply restrained from doing anything
thereon w/c my tend to cut off the light from the dominant estate.
9|Page
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
*balconies/projections OVER the adjoining tenement -- considered
positive easement.
Q: When “positive”?
A: Positive- When opening is made on another’s wall, or on a
party wall, the servitude acquired is POSITIVE, because the
owner or owners of such wall permits the encumbrance to burden
his or their wall.
Q: When “negative”?
A: Negative- when the openings are made in one’s own wall [
when a person makes openings on his own wall to admit light
below the ceiling joists [any of the parallel beams of wood, metal,
or concrete that support a floor, roof, or ceiling ], and he acquires
a servitude to admit such light, the servitude is a negative one-
because it imposes upon the owner of the adjacent estate
the obligation NOT TO CONSTRUCT on his land in such
manner as to obstruct the light.]
Art. 669. When the distances in Article 670 are not observed,
the owner of a wall which is not party wall, adjoining a
tenement or piece of land belonging to another, can make in
it openings to admit light at the height of the ceiling joints or
immediately under the ceiling, and of the size of thirty
centimeters square, and, in every case, with an iron grating
imbedded in the wall and with a wire screen.
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made can close
them should he acquire part-ownership thereof, if there be
no stipulation to the contrary.
He can also obstruct them by constructing a building on his
land or by raising a wall thereon contiguous to that having
such openings, unless an easement of light has been
acquired. (581a)
If owner makes openings upon his wall in a manner contrary to
the requirements of this article, the adjacent owner can compel
him to:
a. Close the opening or
b. Comply w/ the requirements of this article
*if 10 years after making the opening, the adjacent owner does
not object, he is barred from demanding closure BUT no
easement of light and view is acquired since w/out formal notarial
prohibition he does not incur the obligation not to construct an
obstruction to the light and view of the other.
Restrictions Provided:
o Maximum size – 30 cm square
o There must be an iron grating imbedded in the wall
o There must be a wire screen
o The opening must be at the height of the ceiling joists or
immediately under the ceiling
Note: such restrictions should be complied for every opening
for When the distances are as given in Article 670, bigger or regular
windows may be opened without the restrictions given above.
Art. 670. No windows, apertures, balconies, or other similar
projections which afford a direct view upon or towards an
adjoining land or tenement can be made, without leaving a
distance of two meters between the wall in which they are
made and such contiguous property.
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of
sixty centimeters.
The nonobservance of these distances does not give rise to
prescription. (582a)
Mere opening of windows in violation of the present article does
not give rise to the easement of light and view by prescription.
 PROPERTY
Finals Reviewer
Art. 671. The distance referred to in the preceding article
shall be measured in cases of direct views from the outer line
of the wall when the openings do not project, from the outer
line of the latter when they do, and in cases of oblique view
from the dividing line between the two properties. (583)
Note: It is permissible to build even up to the boundary line
provided that NO regular windows are opened (restricted windows
are allowed).
This article also applies to terraces, if there are railings, but NOT
if there are no railings.
Art. 672. The provisions of Article 670 are not applicable to
buildings separated by a public way or alley, which is not less
than three meters wide, subject to special regulations and
local ordinances.(584a)
Art. 673. Whenever by any title a right has been acquired to
have direct views, balconies or belvederes overlooking an
adjoining property, the owner of the servient estate cannot
build thereon at less than a distance of three meters to be
measured in the manner provided in Article 671. Any
stipulation permitting distances less than those prescribed in
Article 670 is void. (585a)
The acquisition of this servitude may be through contract,
testament, or prescription.
The manner in which the servitude is to be exercised may be
stipulated by the parties whenever the servitude is created by
contract.
SECTION 6. - Drainage of Buildings
Art. 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the rain
water shall fall on his own land or on a street or public place,
and not on the land of his neighbor, even though the adjacent
land may belong to two or more persons, one of whom is the
owner of the roof. Even if it should fall on his own land, the
owner shall be obliged to collect the water in such a way as
not to cause damage to the adjacent land or tenement. (586a)
Provides for the Restrictions with Respect to the Easement of
Drainage of Buildings:
a. A person should let rain water FALL on his own land, and
not on the adjacent land, even if he a co-owner of the
latter
b. Rain water must be COLLECTED, instead of just being
allowed to drift to the adjacent or lower land
Art. 675. The owner of a tenement or a piece of land, subject
to the easement of receiving water falling from roofs, may
build in such manner as to receive the water upon his own
roof or give it another outlet in accordance with local
ordinances or customs, and in such a way as not to cause any
nuisance or damage whatever to the dominant estate. (587)
Art. 676. Whenever the yard or court of a house is
surrounded by other houses, and it is not possible to give an
outlet through the house itself to the rain water collected
thereon, the establishment of an easement of drainage can be
demanded, giving an outlet to the water at the point of the
contiguous lands or tenements where its egress may be
easiest, and establishing a conduit for the drainage in such
manner as to cause the least damage to the servient estate,
after payment of the property indemnity. (583)
Conditions
a. Because of enclosure, there is no adequate outlet for the
rain water
b. The outlet must be at the point of easiest egress
c. Least possible damage
10 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
d. Payment of proper indemnity
SECTION 7. - Intermediate Distances
and Works for Certain Constructions and Plantings
Art. 677. No constructions can be built or plantings made
near fortified places or fortresses without compliance with
the conditions required in special laws, ordinances, and
regulations relating thereto. (589)
Art. 678. No person shall build any aqueduct, well, sewer,
furnace, forge, chimney, stable, depository of corrosive
substances, machinery, or factory which by reason of its
nature or products is dangerous or noxious, without
observing the distances prescribed by the regulations and
customs of the place, and without making the necessary
protective works, subject, in regard to the manner thereof, to
the conditions prescribed by such regulations. These
prohibitions cannot be altered or renounced by stipulation
on the part of the adjoining proprietors.
In the absence of regulations, such precautions shall be
taken as may be considered necessary, in order to avoid any
damage to the neighboring lands or tenements. (590a)
In constructions of aqueduct, wells, sewers, etc. – follow the
distances prescribed by the regulations (ordinances) and customs,
if there be any, otherwise take precautions.
There can be no waiver or alterations by stipulations with regards
to the prohibitions (Reason: public safety)
Art. 679. No trees shall be planted near a tenement or piece
of land belonging to another except at the distance
authorized by the ordinances or customs of the place, and, in
the absence thereof, at a distance of at least two meters from
the dividing line of the estates if tall trees are planted and at
a distance of at least fifty centimeters if shrubs or small trees
are planted.
Every landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or
tenement be uprooted.
The provisions of this article also apply to trees which have
grown spontaneously. (591a)
Provides for Rules with Respect to the Planting of Trees:
o Regarding distances – follow ordinances, then customs.
In the absence of both, the following distances must be
observed (minimum):
 Tall trees – 2 meters from boundary line to center of the
tree
 Small trees or shrubs – 50 cm…
Remedy for Violation – demand uprooting of the tree or shrub
Art. 680. If the branches of any tree should extend over a
neighboring estate, tenement, garden or yard, the owner of
the latter shall have the right to demand that they be cut off
insofar as they may spread over his property, and, if it be the
roots of a neighboring tree which should penetrate into the
land of another, the latter may cut them off himself within
his property. (592)
As to ROOTS - owner of the neighboring tenement can cut without
necessity of notice to owner of the trees.
As to BRANCHES – necessary to ask the owner to cut, if he does
not do so voluntarily, court may authorize the same.
Rules of Prescription:
o Of the right to demand the cutting off of the branches – this
does not prescribe if tolerated by invaded owner; if demand
is made, prescription runs from the date of said demand
o Of the right to cut off the roots – this is imprescriptible
unless a notarial prohibition is made
 PROPERTY
Finals Reviewer
Art. 681. Fruits naturally falling upon adjacent land belong to
the owner of said land. (n)
Fruits falling ON THE LAND OF THE NEIGHBOR BELONG TO HIM
by principle of accession.
If the fruits FALL ON AN IMMOVABLE FOR PUBLIC USE, they are
not considered as fruits of these immovables hence they belong to
the OWNER OF THE TREE.
If fruit is still HANG on the branch – still belongs to the OWNER
OF THE TREE.
SECTION 8. - Easement Against Nuisance (n)
Art. 682. Every building or piece of land is subject to the
easement which prohibits the proprietor or possessor from
committing nuisance through noise, jarring, offensive odor,
smoke, heat, dust, water, glare and other causes.
Art. 683. Subject to zoning, health, police and other laws and
regulations, factories and shops may be maintained provided
the least possible annoyance is caused to the neighborhood.
Q: Who is servient in an easement against nuisance?
A: The proprietor or possessor of the building or piece of land,
who commits the nuisance thru noise, jarring, offensive odor, etc.
is servient in an easement against nuisance; in another sense, the
building or the land itself is the servient estate, since the
easement is inherent in every building or land
Q: who is dominant in an easement against nusance?
A: the general public, or anybody injured by the nuisance
Q: what are the rights of the dominant estate?
A:
1. If the nuisance is a public nuisance the remedies are:
i. A prosecution under the Penal Code or any local
ordinance
ii. A civil action
iii. Abatement, without judicial proceedings
2. If the nuisance is a private nuisance, the remedies are:
i. A civil action
ii. Abatement without judicial proceedings
SECTION 9. - Lateral and Subjacent Support (n)
Sec. 684. No proprietor shall make such excavations upon
his land as to deprive any adjacent land or building of
sufficient lateral or subjacent support.
Art. 685. Any stipulation or testamentary provision allowing
excavations that cause danger to an adjacent land or building
shall be void.
LATERAL
Owner of a piece of land has a right to excavate on his own land,
up to the boundary line of the building land.
Easement of lateral support prevents him from excavating so
close to the adjoining land as to deprive it of its natural support
and cause it go collapse by reason of its own weight or by the
action of the elements.
Excavator is an “adjoining owner” w/in the meaning of the rule if
his excavation results in a slide in the plaintiff’s property.
A person excavating on his land instead of observing a sufficient
distance to permit the necessary lateral support of adjoining land,
may support the later artificially [as long as it can sufficiently
support and maintain the adjoining land in its proper position].
SUBJACENT SUPPORT
Imposes upon the owners of rights below the surface the duty to
refrain from removing such sufficient support which will protect
11 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
the surface from subsidence or sinking and keep it securely at its
original and natural level [excavator not required to provide for
consequences of convulsions of nature i.e. earthquakes].
REMEDIES
1. Action for Damages
2. Injunction
Art. 685. Any stipulation or testamentary provision allowing
excavations that cause danger to an adjacent land or building
shall be void.
Waiver for the protection afforded to lands/buildings by the
easements of lateral and subjacent support is considered contraty
to public policy – it may endanger not only property but also
human life.
Reason for the article: a person is protected even against his own
folly, in the interest of public safety
Art. 686. The legal easement of lateral and subjacent support
is not only for buildings standing at the time the excavations
are made but also for constructions that may be erected.
Art. 687. Any proprietor intending to make any excavation
contemplated in the three preceding articles shall notify all
owners of adjacent lands.
Purpose of notice is to ENABLE THE ADJOINING OWNERS TO
TAKE THE NECESSARY PRECAUTIONS to protect their lands and
the buildings thereon.
Where the PLANS of the person making the excavation are
CHANGED so as to render the WORK MORE DANGEROUS to the
adjoining premises, NOTICE OF SUCH CHANGE must be given to
the adjoining owner.
Where the adjoining owner is occupying his lot and is aware of the
situation from the progress of the work, notice of the excavation
need not be given to him.
Although NOTICE HAS ALREADY BEEN GIVEN, EXCAVATOR IS
STILL BOUND to exercise REASONABLE CARE AND SKILL in
excavating on his land so as not to cause damage to the
neighboring party.
VILLANUEVA V VELASCO
A legal easement is one mandated by law, constituted for public
use or for private interest and becomes a continuing property
right.
COSTABELLA CORP. V CA
An easement of right of way is discontinuous and as such cannot
e acquired by prescription.
The burden of proving the existence of the pre-requisites to
validly claim a compulsory right of way lies on the owner of the
dominant estate.
QUIMEN V CA
Where the easement may be established on any off several
tenements surrounding the dominant estate, the one where the
way is shortest and will cause the least damage should be chosen
but if these two circumstances do not concur in a single
tenement, the way which will cause the least damage should be
used, even if it will not be the shortest – the criterion of least
prejudices to the servient estate must prevail over the criterion of
shortest distance.
As between a right of way that would demolish a store of strong
materials to provide egress to a public highway, and another right
of way which although longer will only require an avocado tree to
be cut down, the second alternative should be preferred.
 PROPERTY
Finals Reviewer
VALDEZ V TABISULA
An easement or servitude is a real right constituted on another’s
property, corporeal and immovable, by virtue of which the owner
of the same has to abstain from doing or to allow somebody else
to do something on his property for the benefit of another thing or
person.
A document stipulating a voluntary easement must be recorded in
the Registry of Property in order not to prejudice 3rd persons.
NAPOCOR V SUAREZ
The nature and the effect of the installation of power lines, the
limitations on the use of the land for an indefinite period would
deprive respondent of normal use of the property. For this reason,
the latter is entitled to payment of a just compensation, which
must neither be more nor less than the monetary equivalent of
the land.
ENCARNACION V CA
It is the needs of the dominant property which ultimately
determine the width of the passage and these needs may vary
from time to time.
When petitioner started out as a plant nursery operator, he and
his family could easily make do with a few pushcarts to tow the
plants to the national highway. But the business grew and with it
the need for the use of modern means of conveyance or
transport. Manual hauling of plants and garden soil and use of
pushcarts have become extremely cumbersome and physically
taxing. To force petitioner to leave his jeepney in the highway,
exposed to the elements and to the risk of theft simply because it
could not pass through the improvised pathway, is sheer
pigheadedness on the part of the servient estate and can only be
counter-productive for all the people concerned. Petitioner should
not be denied a passageway wide enough to accommodate his
jeepney since that is a reasonable and necessary aspect of the
plant nursery business.
CHAPTER 3
VOLUNTARY EASEMENTS
Art. 688. Every owner of a tenement or piece of land may
establish thereon the easements which he may deem
suitable, and in the manner and form which he may deem
best, provided he does not contravene the laws, public policy
or public order. (594)
Only the owner can constitute a servitude over his property
[usufructuary and possessor in GF does not]
*creation of a servitude is a disposition of part of the right of
ownership
BUT they can constitute a servitude which will terminate upon the
expiration of their usufruct or possession [personal right].
Q: what kinds of voluntary easements that may be established?
A: Easements established may be PREDIAL (for the benefit of an
estate) or PERSONAL
Q: Who may establish the voluntary easement?
A: Only the OWNER or someone else, IN THE NAME OF AND WITH
THE AUTHORITY of the owner – for this is an act of ownership.
Note: in case of personal easement, any person with legal
capacity to accept may acquire the easement in his favor
Art. 689. The owner of a tenement or piece of land, the
usufruct of which belongs to another, may impose thereon,
without the consent of the usufructuary, any servitudes
which will not injure the right of usufruct. (595)
12 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
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)
Q: when should consent be given?
A: The consent need not be given simultaneously; they can be
given successively
Note [Last Paragraph]: Once a co-owner gives his consent, he
cannot later on revoke his consent except when the consent had
been vitiated.
*It is not necessary for him to give his consent anew when the
other co-owners later give their consent.
Art. 692. The title and, in a proper case, the possession of an
easement acquired by prescription shall determine the rights
of the dominant estate and the obligations of the servient
estate. In default thereof, the easement shall be governed by
such provisions of this Title as are applicable thereto. (598)
Governing Rules for Voluntary Easements:
o If created by TITLE (contract, will, etc.), the title governs.
Civil code is suppletory.
o If created by PRESCRIPTION, the form and manner in which
it had been acquired. CC suppletory.
o If created by prescription in a proper case (contract initially,
but form and manner may have been extended or
decreased by prescription), the way the easement has been
possessed that is the manner and form of possession. CC
suppletory
Art. 693. If the owner of the servient estate should have
bound himself, upon the establishment of the easement, to
bear the cost of the work required for the use and
preservation thereof, he may free himself from this
obligation by renouncing his property to the owner of the
dominant estate.(599)
Owner of servient estate may abandon that part of the servient
tenement which is affected by the exercise of the servitude and
keep the rest thereof [if servitude affects entire servient tenement
abandonment must be total].
Q: how is renunciation made?
A: must comply with the proper juridical form for the transmission
of the ownership of real property. Implied or tacit abandonment
cannot be allowed.
Title VIII - NUISANCE
Article 694
- A nuisance is any act, omission, establishment,
business, condition of property, or anything else
which:
1. Injures or endangers the health or safety of
others; or (ex. House in danger of falling)
2. Annoys or offends the senses; or (ex. Too much horn
blowing)
3. Shocks, defies or disregards decency or morality;
or (ex. Burlesque performance)
 PROPERTY
Finals Reviewer
4. Obstructs or interferes with the free passage of
any public highway or street, or any body of
water; or (ex. Houses constructed on public streets,
market stalls on a public plaza)
5. Hinders or impairs the use of property. (ex. Illegal
construction on another’s land)
Aspect of Nuisance
At present, nuisance may be used to refer either to the
HARM CAUSED or THAT WHICH CAUSES THE HARM (incident
human conduct, physical condition of a thing), or both
Nuisance Distinguished from Negligence and from Trespass
a. From NEGLIGENCE – Negligence is penalized because of
lack of proper care; but a nuisance is wrong, not
because of the presence or absence of care, but because
of the injury caused
b. From TRESPASS – In trespass, there is entry into
another’s property; this is not necessarily so in
nuisance. In trespass, the injury is direct and
immediate; in nuisance, it is only consequential
Article 695
- 2 types of Nuisance: public or private
A public nuisance affects a community or neighborhood or
any considerable number of persons, although the extent
of the annoyance, danger or damage upon individuals may
be unequal.
A private nuisance is one that is not included in the
foregoing definition.
New Classification of Nuisance
a. Accdg. to relief (whether given or not)
i. Actionable
ii. Non actionable
b. Accdg. to manner of relief
i. Those abatable by crim. and civil actions
ii. Those abatable only by civil actions
iii. Those abatable judicially
iv. Those abatable extrajudicially
c. Accdg. to the Civil Code
i. Public (common)
ii. Private (ex. An illegally constructed
partially resting on another’s estate)
 Doctrine of Attractive Nuisance:
- Dangerous instrumentality or appliance which is likely
to attract children at play.
- One who maintains on his estate or premises an
attractive nuisance without exercising due care to
prevent children from playing therewith or resorting
thereto, is liable to a child of tender years who is injured
thereby, even if the child is technically a trespasser in
the premises.
- Basis of Liability – the attractiveness is an invitation to
children. Safeguards to prevent danger must therefore
be set up.
- Note: swimming pool or water tank is not an attractive
nuissance
HIDALGO ENTERPRISES INC. VS. GUILLERMO BALANDAN
”Nature has created streams, lakes and pools which attract
children. Lurking in their waters is always the danger of drowning.
Against this danger children are early instructed so that they are
sufficiently presumed to know the danger; AND IF THE OWNER OF
PRIVATE PROPERTY CREATES AN ARTIFICIAL POOL ON HIS OWN
PROPERTY, MERELY DUPLICATING THE WORK OF NATURE
WITHOUT ADDING ANY NEW DANGER, . . . (he) is not liable
because of having created an `attractive nuisance.”
13 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
ESTATE OF GREGORIA FRANCISCO VS. CA
Respondents can not seek cover under the general welfare clause
authorizing the abatement of nuisances without judicial
proceedings. That tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity
(Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of
copra in the quonset building is a legitimate business. By its
nature, it can not be said to be injurious to rights of property, of
health or of comfort of the community. If it be a nuisance per
accidens it may be so proven in a hearing conducted for that
purpose.
Article 696
- Provides for the instance when successor to the property
may be held liable:
o The successor, to be held liable, must
knowingly fail or refuse to abate the nuisance
Liability of two or more persons responsible for a Nuisance
If there was common design or interest, the liability is
SOLIDARY.
Note: if a person sets up a nuisance on his land, then leases the
property to another, he cannot escape liability. Moreover,
continuation of the nuisance after the lease becomes effective
likewise makes the lessor liable. The lessee will be liable only
when he knowingly allows its existence. The same is true with a
purchaser
Article 697
- The remedies of ABATEMENT and DAMAGES are
CUMULATIVE - both may be demanded
Article 698
- Lapse of time cannot legalize any nuisance,
whether public or private.
- The action to abate a public or private nuisance is not
extinguished by prescription (Art. 1143(2))
- Exception: Art. 698 and 1143 do NOT apply to
easements which are extinguished by obstruction and
non-user for ten years. (Art. 631 must be regarded as
an exception to the general rule in Art. 698)
Article 699
dam - The remedies against a public nuisance are:
1. A prosecution under the Penal Code or any local
ordinance: or
2. A civil action; or
3. Abatement, without judicial proceedings.
Article 700
- The district health officer shall take care that one
or all of the remedies against a public nuisance are
availed of.
Article 701
- If a civil action is brought by reason of the
maintenance of a public nuisance, such action
shall be commenced by the city or municipal
mayor.
Article 702
- The district health officer shall determine whether
or not abatement, without judicial proceedings, is
the best remedy against a public nuisance.
Article 703
- Ordinarily, it is the mayor who must bring the civil
action to abate a public nuisance
- But a private individual can also do so, if the public
nuisance is SPECIALLY INJURIOUS to himself
 PROPERTY
Finals Reviewer

Q: what is the Nature of the Action? 5. Tradition, as a consequence of certain contracts (as
A: the action may be for INJUNCTION, ABATEMENT or for when sold sugar has been delivered)
DAMAGES
Mode (the process of acquiring or transferring ownership) vs. Title
Article 704 (gives a juridical justification for a mode)
- Any private person may abate a public nuisance MODE TITLE
which is specially injurious to him by removing, or Proximate cause Remote cause
if necessary, by destroying the thing which The true cause (or process) The justification for the process
constitutes the same, without committing a breach Directly produces a real right Serves merely to give an
of the peace, or doing unnecessary injury. But it is opportunity for the existence of
necessary: a real right; meantime, only a
1. That demand be first made upon the owner or personal right exists
possessor of the property to abate the nuisance;
2. That such demand has been rejected;
MODE AND TITLE:
3. That the abatement be approved by the district
Mode is the specific cause which produces dominion
health officer and executed with the assistance of
and other real rights as a result of the co-existence of special
the local police; and
status of things, capacity and intention of persons and fulfillment
4. That the value of the destruction does not exceed
of the requisites of law.
three thousand pesos.
Note: there are four requisites
Title is every juridical rights which gives a means to the
acquisition of real rights but which in itself is insufficient.
Article 705
- The remedies against a private nuisance are:
Illustration:
1. A civil action; or
Title is the remote cause, and mode the proximate cause of the
2. Abatement, without judicial proceedings.
acquisition. (e.g. Contract of sale is the title, tradition is the
mode.
Note: Criminal prosecution is not mentioned. However, if indeed a
Ownership is not transferred by contract of sale but by tradition
crime has been committed, criminal prosecution can proceed
Modes of Extinguishing Ownership
Defenses
a. Absolute extinguishment
a. Estoppels, public necessity
1. Physical loss or destruction
b. The non-existence of the nuisance
2. Legal loss or destruction
c. Impossibility of abatement
b. Relative
1. Law
Article 706
2. Succession
- Any person injured by a private nuisance may
3. Tradition
abate it by removing, or if necessary, by
4. Donation
destroying the thing which constitutes the
5. Abandonment
nuisance, without committing a breach of the
6. Destruction of the prior title or right
peace or doing unnecessary injury. However, it is
7. Prescription
indispensable that the procedure for extrajudicial
abatement of a public nuisance by a private person
Title 1 – Occupation
be followed.
Article 713
Article 707
- Occupation Defined: the acquisition of ownership by
- A private person or a public official extrajudicially
seizing CORPOREAL THIGNS that have no owner, made
abating a nuisance shall be liable for damages:
with the intention of acquiring them, and
1. If he causes unnecessary injury; or
ACCOMPLISHED ACCORDIGN TO LEGAL RULES
2. If an alleged nuisance is later declared by the
courts to be not a real nuisance.
Essential Requisites for Occupation
a. There must be a seizure or apprehension
Note: person liable for damages may be a private person or a
b. The property seized must be corporeal personal property
public official.
c. The property seized must be susceptible of appropriation
d. There must be the intent to appropriate
Title IX – REGISTRY OF PROPERTY
e. The requisites or conditions of the law must be complied with
BOOK III – DIFFERENT MODES OF ACQUIRIGN
OWNERSHIP
Article 714
- The ownership of a piece of land cannot be
Article 712
acquired by occupation
- Mode of Acquiring Ownership
- The reason for the article is the fact that “when the land
a. Original Modes (independent of any pre-existing or
is without owner, it pertains to the State”
proceeding title or right of another):
- Note however that while land cannot be acquired by
1. Occupation (ex. Hunting, fishing, hidden treasure,
occupation, it may be acquired by prescription
abandoned movables)
2. Creation or work (ex. Copyrights, patented inventions,
Occupation vs. Prescription
trademarks, letters)
OCCUPATION PRESCRIPTION
b. Derivative Modes (somebody else was the owner before):
1. Succession - inheritance Original mode – no owner Derivative mode – somebody
2. Donation else was owner
3. Prescription Shorter period of possession Generally, longer period of
4. Law (ex. Accession, fruits naturally falling on adjacent possession
land)
14 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
 PROPERTY
Finals Reviewer

Article 715 2. Remuneratory (first kind)- to reward past services e.g.

- The right to hunt and to fish is regulated by special
laws
Article 716
- Speaks of Domesticated animals
- Domesticated animals may be acquired by occupation
(20 days) unless a claim has been made for them
donation who saved life of his son)
3. Remuneratory (second kind)- to reward future services
4. Onerous- there are burdens, charges, or future service.
This is govern by the rules of contracts and thus it is not
essential to have a public instrument.
(Other types of classifications: see page 880 of PARAS)

Article 717 Article 727

- Pigeons and fish which from their respective
breeding places pass to another pertaining to a
different owner shall belong to the latter, provided
they have not been enticed by some article of
fraud.
- EFFECT OF ILLEGAL OR IMPOSSIBLE CONDITIONS
Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not
imposed. (THIS ONLY APPLIES IF THE DONATION IS
PURELY GRATUITOUS)

Article 718 FOR ONEROUS DONATIONS, THE RULE IN OBLIGATIONS AND

- He who by chance discovers hidden treasure in
another's property shall have the right granted
him in article 438 of this Code.
Article 719
- Whoever finds a movable, which is not treasure,
must return it to its previous possessor. If the
latter is unknown, the finder shall immediately
deposit it with the mayor of the city or
municipality where the finding has taken place.
The finding shall be publicly announced by the
mayor for two consecutive weeks in the way he
deems best.
If the movable cannot be kept without
deterioration, or without expenses which
considerably diminish its value, it shall be sold at
public auction eight days after the publication.
Six months from the publication having elapsed
without the owner having appeared, the thing
found, or its value, shall be awarded to the finder.
The finder and the owner shall be obliged, as the
case may be, to reimburse the expenses.
Article 720
- If the owner should appear in time, he shall be
obliged to pay, as a reward to the finder, one-
tenth of the sum or of the price of the thing found.
CONTRACTS APPLIES
 i.e. Rule in contracts [ which is applicable in a case of
“onerous donation”]:
 Art. 1183. Impossible conditions, those contrary to good
customs or public policy and those prohibited by law
shall annul the obligation which depends upon them. If
the obligation is divisible, that part thereof which is not
affected by the impossible or unlawful condition shall be
valid.
Validity of conditions in an “onerous donation”:
ROMAN CATHOLIC ARCHBISHOP OF MANILA ET.AL. VS. CA
The deed of donation allegedly provides that the donee shall not
dispose or sell the property within a period of one hundred (100)
years from the execution of the deed of donation, otherwise a
violation of such condition would render ipso facto null and void
the deed of donation and the property would revert to the estate
of the donors.
HELD:
The cause of action of private respondents is based on the
alleged breach by petitioners of the resolutory condition in the
deed of donation that the property donated should not be sold
within a period of one hundred (100) years from the date of
execution of the deed of donation. Said condition, in our opinion,
constitutes an undue restriction on the rights arising from
ownership of petitioners and is, therefore, contrary to public
policy.
Article 728
- DONATION MORTIS CAUSA:

Title III – Donation Donations which are to take effect upon the death of
the donor partake of the nature of testamentary
Chapter 1 provisions, and shall be governed by the rules established
Nature of Donations in the Title on Succession

Article 725 AUSTRIA-MAGATV CA

- Donation is an act of liberality whereby a person
disposes gratuitously of a thing or right in favor of
another, who accepts it.
- Donation is really a contract (but does not ordinarily
require delivery or tradition, before ownership can be
transferred
[INTER-VIVOS DONATION]
Deed of Donation provides:
Ibinibigay ko at ipinagkakaloob ng ganap at hindi mababawi sa
naulit na apat na anak ko at sa kanilang mga tagapagmana, ang
aking lupang residential o tirahan sampu ng aking bahay nakatirik
doon xxx. (emphasis supplied)

Essential Characteristics of True Donations (Inter Vivos) This is a clear expression of the irrevocability of the conveyance.
a. Consent, subject matter, cause The irrevocability of the donation is a characteristic of a
b. The necessary form donation inter vivos. By the words “hindi mababawi”, the donor
c. Consent or acceptance by done during donor’s lifetime expressly renounced the right to freely dispose of the house and
d. Irrevocability lot in question. The right to dispose of a property is a right
e. Intent to benefit the done essential to full ownership. Hence, ownership of the house and lot
f. Resultant decrease in the assets or patrimony of the was already with the donees even during the donor’s lifetime.
donor
On the issue of effect of prohibition to alienate:
Article 726 “On the other hand, the prohibition to encumber,
- Classification of Donations: alienate or sell the property during the lifetime of the donor is a
1. Simple- cause is pure liberality recognition of the ownership over the house and lot in issue of the
15 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
 PROPERTY
Finals Reviewer

donees for only in the concept of an owner can one encumber or
dispose a property.”
CHARACTERISTICS OF A MORTIS CAUSA DONATION:
 BONSATO VS. COURT OF APPEALS [ G.R. No. L-6600
July 30, 1954 ], the characteristics of donation mortis
causa are as follows:
1. It conveys no title or ownership to the transferee
before the death of the transferor; or, what
amounts to the same thing, that the TRANSFEROR
SHOULD RETAIN THE OWNERSHIP (FULL OR
NAKED) AND CONTROL OF THE PROPERTY WHILE
ALIVE;
2. That BEFORE HIS DEATH, the TRANSFER SHOULD
BE REVOCABLE BY THE TRANSFEROR AT WILL, ad
nutum; but revocability may be provided for
indirectly by means of a reserved power in the
donor to dispose of the properties conveyed;
3. That the TRANSFER SHOULD BE VOID IF THE
TRANSFEROR SHOULD SURVIVE THE TRANSFEREE.
Article 729
- When the donor intends that the donation shall
take effect during the lifetime of the donor, though
the property shall not be delivered till after the
donor's death, this shall be a donation inter vivos.
The fruits of the property from the time of the
acceptance of the donation, shall pertain to the
donee, unless the donor provides otherwise
- Express acceptance is NOT necessary for the validity of
donations proper nuptias; implied acceptance is
sufficient
Note: 728 and 729 deal with the classification of donations,
viewed form the time they become effective.
- When a person donates something, subject to the
resolutory condition of the donor's survival, there
is a donation inter vivos.
Example: A was about to undergo an operation. He donated to B
a parcel of land subject to the condition that if A survives the
operation, B’s ownership over the land would terminate, and the
same would revert to A. This is a donation inter vivos, not mortis
causa.
Article 732
- Donations which are to take effect inter vivos shall
be governed by the general provisions on
contracts and obligations in all that is not
determined in this Title.
Article 733
- Donations with an onerous cause shall be
governed by the rules on contracts and
remuneratory donations by the provisions of the
present Title as regards that portion which
exceeds the value of the burden imposed.
Article 734
- PERFECTION OF DONATION:
The donation is perfected from the moment the
donor knows of the acceptance by the donee.
Note: if there is no acceptance, the donation will be null and void.
Acceptance must be made during the lifetime of the donor and of
the donee
PAJARILLO et.al. vs. INTERMEDIATE APPELLATE COURT
FACTS:
Donation that is involved is that from a mother to a daughter.

Inter Vivos vs. Mortis Causa Donation was accepted by Salud Suterio in a separate public
INTER VIVOS MORTIS CAUSA instrument, but the acceptance WAS NOT NOTED in both
Takes effect during the lifetime Takes effect after the death of instruments, meaning, the extra-judicial partition [ where the
of the donor the donor donation was made] and in the instrument of acceptance, as
Must follow the formalities of Must follow the formalities of required by the Civil Code.
donations wills or codicils (holographic or THE PURPOSE OF THE FORMAL REQUIREMENT IS TO INSURE
notarial) THAT THE ACCEPTANCE OF THE DONATION IS DULY
Cannot be revoked except for Can be revoked at any time COMMUNICATED TO THE DONOR. IN THE CASE AT BAR, IT IS
grounds provided for by law and for any reason while the NOT EVEN SUGGESTED THAT JUANA WAS UNAWARE OF THE
donor is still alive ACCEPTANCE FOR SHE IN FACT CONFIRMED IT LATER AND
REQUESTED THAT THE DONATED LAND BE NOT REGISTERED
In case of impairment of the In case the legitime is
DURING HER LIFETIME BY SALUD. 13 Given this significant
legitime, donations inter vivos impaired, such are reduced
evidence, the Court cannot in conscience declare the donation
are preferred to donations ahead of donations inter vivos,
ineffective because there is no notation in the extrajudicial
mortis causa the latter being preferred
settlement of the donee's acceptance. That would be placing too
The right of disposition is The right of disposition is not
much stress on mere form over substance.
completely transferred to the transferred to the done while
done the donor is still alive
Chapter 2
Acceptance by done must be Acceptance by done mortis Person Who May Give or Receive a Donation
during lifetime of donor causa can only be done after
the donor’s death; any prior Article 735
acceptance is immaterial or - It is not enough that a person be capacitated to
void contract; he must also have capacity to dispose
(sample of donations: read page 885-886 of PARAS)
Note: in donations made by an incapacitated person, it is
Article 730 submitted that following the laws in contracts, said donations
- The fixing of an event or the imposition of a should be merely considered voidable. The same is applied in case
suspensive condition, which may take place there was vitiated consent
beyond the natural expectation of life of the donor,
does not destroy the nature of the act as a Article 736
donation inter vivos, unless a contrary intention - Guardians and Trustees cannot donate the
appears. property entrusted to them
- They are allowed to donate their own properties but not
Article 731 those entrusted to them
- This article apples only to simple donations or gifts of
pure beneficence
16 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
 PROPERTY
Finals Reviewer
Article 737
- The donor’s capacity shall be determined as of the
time of the making of the donation
- Simple means that at the time the donation is perfected,
both the donor and the done must be capacitated
Article 738
- All those who are not specially disqualified by law
therefor may accept donations.
- Both natural and juridical persons may become donees
- Note however that a donation of real property cannot be
given to an alien religious organizations until 60% of its
capital stock is owned by Filipinos or unless the
controlling membership is in the hands of Filipinos
- An attorney-in-fact of the donor is NOT INCAPACITATED
as a done. His incapacity to purchase the property which
he had been authorized to sell does NOT disqualify him
as a done
Article 739
- The following donations shall be void: (By reason of
public policy or of moral consideration)
1. Those made between persons who were guilty of
adultery or concubinage at the time of the
donation; (guilt may be proved by mere preponderance
of evidence; donation is considered valid except if the
consideration thereof is the commission of the act)
2. Those made between persons found guilty of the
same criminal offense, in consideration thereof; (it
is imperative that there is a criminal conviction; it does
not matter whether the donation was made before or
after the commission of the offense)
Q: is a donation made to prevent the commission of a
crime void, voidable, or valid?
A:it is submitted that under general principles the
donation should be considered valid because the
purpose is laudable
3. Those made to a public officer or his wife,
descedants and ascendants, by reason of his
office. (purpose: is to prevent bribery; this provision
does not prevent the public office from becoming a
donor
In the case referred to in No. 1, the action for
declaration of nullity may be brought by the
spouse of the donor or donee; and the guilt of the
donor and donee may be proved by preponderance
of evidence in the same action. (n)
Article 740
- Incapacity to succeed by will shall be applicable to
donations inter vivos
- Who are Incapacitated to Inherit:
o Absolute incapacity – where in no case can
there be transmission of the inheritance
o Relative incapacity – where under certain
conditions, a particular person cannot inherit
from a particular decedent
- This article speaks of the UNWORTHINESS of the done
Note: this article does not refer to persons incapacitate to
PURCHASE
Article 741
- Minors and others who cannot enter into a
contract may become donees but acceptance shall
be done through their parents or legal
representatives
17 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
Q: May minors accept by themselves?
A: It depends.
If the donation is SIMPLE – yes, because after all this is
for the benefit of the child. The exception is when WRITTEN
acceptance of the donation is required. In such a case, the
parents or legal representatives must intervene
If the donation is ONEROUS or CONDITIONAL – because
here some burden is imposed on the child, the parents or legal
representatives must intervene (if minor alone accepts – it is
merely VOIDABLE)
Note: If the value of the donation in favor of the child exceeds
5,000, the parents or legal representatives by themselves cannot
accept the donation. They should ask court approval otherwise, it
is as if there has been no acceptance
Article 742
- Donations made to conceived and unborn children
may be accepted by those persons who would
legally represent them if they were already born.
- Donation here refers to both simple and onerous, except
that in the case of the latter, if it turns out that the
onerous donation proves unfavorable to the child, it is as
if the conceived child possessed no juridical personality
Requisites for the Article to Apply
a. The child be born alive later
b. Or that the child, after being born alive, should live for
at least 24 hours, otherwise the donation is null and
void
Article 743
- Donations made to incapacitated persons shall be
void, though simulated under the guise of another
contract or through a person who is interposed
- The term INCAPACITATED in this article DOES NOT refer
to minors or those who are insane, but to those who are
not allowed to become donees (ex. Guilty of adultery)
Article 744
- Article refers to Donation to the same object to two or
more different donees – cross reference to Article 1544
(Double Sale) – same applicable rule
- This article does not apply to instances where there is a
donation and also a sale
Article 745
- Provides that Formalities of acceptance should be
present, otherwise donation is void
- Thru whom acceptance may be made (two kinds of
authorized persons):
o One with a special power
o One with a general or sufficient power
- Donee may accept PERSONALLY
Q: In the case of an onerous donation, if an agent or
administrator without authority from the principal, accepts the
donation in behalf of the principal, would the donation be valid,
rescindable, voidable, unenforceable, or void?
A: since an onerous donation is a contract, the rules on contracts
must be followed. Hence, the onerous donation entered into is an
unauthorized contract, more specifically an unenforceable
contract. (Art. 1403 No.1)
- This article also applies to the GIVING on the part of the
Donor
Note: the authorization should be in a PUBLIC INSTRUMENT
conformably with Art. 1358. It should be noted that special power
of attorney is needed when an inheritance is to be accepted (art.
1878 No. 13) – Manresa
 PROPERTY
Finals Reviewer
Article 746
- Acceptance must be made during the lifetime of
the donor and of the done
- Applicable to donations inter vivos and onerous
donations
Note however, in donations mortis causa, the acceptance of the
donee must be made only after the donor’s death. Nevertheless,
the acceptance may be made expressly or impliedly by the
donee’s heirs for as long as he did not predecease the donor.
Article 747
- Person (duly authorized) who accept donations in
representation of others who may not do so by
themselves, shall be obliged to make the
notification and notation of which Article 749
speaks
- Notification and notation, in the proper cases, are
essential for the perfection of the donation
Article 748
- DONATION OF A MOVABLE:
The donation of a movable may be made orally or
in writing.
An oral donation requires the simultaneous
delivery of the thing or of the document representing the
right donated.
If the value of the personal property donated
exceeds five thousand pesos, the donation and the
acceptance shall be made in writing, otherwise, the
donation shall be void.
- Absence of these formalities will result to the nullity of
the donation
Outline of Rule
o If the value of the donated movable is more than P5,000
o Should always be in WRITING. Acceptance
must also be in writing
o If the value is P5,000 or less
o Can be made orally (but here there must be):
i. Simultaneous deliver of thing
ii. Simultaneous deliver of the document
represent the right donated
(Acceptance may be oral or written, express or
implied)
o Can be made in writing
Note: acceptance may be oral
Article 749
o In order that the donation of an immovable may
be valid, it must be made in a public document,
specifying therein the property donated and the
value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of
donation or in a separate public document, but it
shall not take effect unless it is done during the
lifetime of the donor.
If the acceptance is made in a separate
instrument, the donor shall be notified thereof in
an authentic form, and this step shall be noted in
both instruments.
o Without the formalities, the donation of realty is NULL
and VOID. this is because a donation of real proper is a
SOLEMN contract
Outline of Formalities for Donations of Real Property
a. If the deed of donation and the acceptance are in the
SAME instrument:
1. The instrument must be a PUBLIC DOCUMENT
18 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
2. The document must specify the property
donated and the charges, if any
b. If the deed of donation and the acceptance are NOT in
the same instrument:
1. The donation must be in a public instrument or
document
2. The document must specify the property
donated and the charges, if any.
3. The acceptance in a separate instrument must
be in a PUBLIC INSTRUMETN
4. The donor shall be NOTIFIED in authentic form
of the fact that acceptance is being made or
has been made in a separate public instrument
5. The fact that there has been a notification
must be noted in both instruments
Note: if the notification and the notation are not
complied with, the donation is VOID. However, it
should be understood that the donor may waive the
necessity of a formal notice or notification
Remember: the registration in the Registry of Property of the
donation of real property is NOT NEEDED for the validity between
the parties and their assigns; the registration is only useful for
binding third parties.
Q: what are the effects if the donation is only in a private
instrument?
A:
1. Donation is null and void unless it be a donation propter
nuptias
2. Neither party may compel the other to execute a public
instrument because Art. 1367 does not apply
3. Cannot really be ratified
Remember: a valid donation of real property in a public
instrument transfers not only OWNERSHIP but also POSSESSION
because the execution of such instrument is one form of delivery
unless there is a contrary intention.
QUILALA VS. GLICERIA ALCANTARA
FACTS:
The acknowledgement only contains the name of the donor to be
the only one who appeared before the Notary Public. There was
no mention of the donee. But in the Deed of Donation itself, there
appears a stipulation that the “donee hereby receives and accepts
the gift and donation made in her favor by the donor….”
HELD:
IN THE SAME VEIN, THE LACK OF AN ACKNOWLEDGMENT BY THE
DONEE BEFORE THE NOTARY PUBLIC DOES NOT ALSO RENDER
THE DONATION NULL AND VOID. The instrument should be
treated in its entirety. It cannot be considered a private
document in part and a public document in another part. THE
FACT THAT IT WAS ACKNOWLEDGED BEFORE A NOTARY PUBLIC
CONVERTS THE DEED OF DONATION IN ITS ENTIRETY A PUBLIC
INSTRUMENT. THE FACT THAT THE DONEE WAS NOT
MENTIONED BY THE NOTARY PUBLIC IN THE ACKNOWLEDGMENT
IS OF NO MOMENT.
VOID DONATION may be basis for title through
ACQUISITIVE PRESCRIPTION
CALICDAN vs. CENDANA
FACTS:
The donation involved a 760 sq.m. parcel of land in Mangaldan,
Pangasinan executed by Fermina Calicdan ( in 1947) in favor of
Silverio Cendana. This is a suit for recovery instituted by Soledad
Calicdan, one of the children of Fermina.
The donation was found to be the exclusive property of Fermina’s
husband, Sixto, being an inheritance from the latter’s parents.
HELD:
 PROPERTY
Finals Reviewer
Although the DONATION IS VOID FOR HAVING BEEN EXECUTED
BY ONE WHO IS NOT THE OWNER, considering that it was
established that respondent Silverio Cendana has been in
possession of the land for 45 years already he has acquired title
to it by acquisitive prescription.
Chapter 3
Effect of Donations and Limitations Thereon
Article 750
o The donation may comprehend all the present
property of the donor, or part thereof, provided he
reserves, in full ownership or in usufruct,
sufficient means for the support of himself, and of
all relatives who, at the time of the acceptance of
the donation, are by law entitled to be supported
by the donor. Without such reservation, the
donation shall be reduced on petition of any
person affected.
o The sufficiency can be determined by the court in
accordance with prudence and the exercise of
reasonable discretion
o An excessive donation under this article is not void, but
merely REDUCIBLE to the extent support of the relatives
is impaired
o Relatives refer to the relatives at the time of the
KNOWLEDGE OF THE ACCEPTANCE
Note: donor must also reserve enough of his property to pay off
his debts contracted before the donation, otherwise there is a
PRESUMPTION that the donation was made to defraud creditors.
Donations not included under the Article
a. The onerous donation
b. Donation mortis causa – for donation takes effect only
upon the donor’s death
c. Donations propter nuptias – these are never reducible
Article 751
o GR: Simply means that future inheritance cannot be the
object of a donation.
o Donation of a future property should be considered NULL
and VOID
o EXC: Contractual Succession – occurs when in a
marriage settlement, the would-be spouses are allowed
to donate mortis causa to each other “future property”
to the extent permitted under the rules of testamentary
succession
Article 752
o Provides for the limitation on the giver
o A person may not give by donation more than what he
can give by will; a person may not receive by way of
donation more than what the giver may give by virtue of
a will
Q: to whom does the limitation apply?
A: only to persons who have COMPULSORY HEIRS at the time of
the former’s death
Prescriptive Period
The action to revoke or reduce the inofficious donation
must be brought by the donor’s compulsory heirs, WITHIN FIVE
(5) YEARS after the donor’s death. (Art. 1149)
Article 753
o Presumption when donation is made to several persons:
equal shares and there shall be no right of accretion
among them, unless the donor has otherwise provided
o Rule stated above does not apply to donation made to
husband and wife jointly (there shall be accretion)
19 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
Instances when Accretion is proper:
1. In case of predecease *done dying ahead of donor
before perfection)
2. In case of incapacity of done
3. In case of refusal or repudiation by done
Article 754
o The donee is subrogated to all the rights and
actions which in case of eviction would pertain to
the donor. The latter, on the other hand, is not
obliged to warrant the things donated, save when
the donation is onerous, in which case the donor
shall be liable for eviction to the concurrence of
the burden.
The donor shall also be liable for eviction or
hidden defects in case of bad faith on his part.
o When warranty Exists:
o If donor is in bad faith
o If donation is ONEROUS – up to amount of
burden
o If warranty is spressly made
o If donation is PROPTER NUPTIAS unless the
contrary is stipulated
Article 755
o This article speaks of a donation with a RESERVATION to
dispose of party of the object donated
Article 756
o The ownership of property may also be donated to
one person and the usufruct to another or others,
provided all the donees are living (includes
conceived children provided that they are later born) at
the time of the donation
Note: the usufruct of real property, being real property by itself
should be donated in the form prescribed for real properties
Article 757
o article refers to CONVENTIONAL REVERSION of
donations
Note: it is alright to provide for reversion within a shorter period,
say 5 or 10 years
Article 758
o this article deals with a donation where it is stipulated
that the done should pay the donor’s debts
o Rules:
o Pay only for prior debts not those contracted
after the donation had been made, unless
there is a stipulation to this effect
o Pay only for debts up to the value of the
property donated unless the contrary is
stipulated or intended
Article 759
o This article apples when there is no stipulation that the
done would pay the donor’s debts:
o GR: done is not required to pay
o EXC: when the donation is made in fraud of
creditors (at the time donation was made)
Q: what is the remedy of the creditors?
A: donations made in fraud of creditors may be rescinded by said
defrauded creditors up to the extent of their credits.
Chapter 4
Revocation and Reduction of Donations
 PROPERTY
Finals Reviewer
Article 760
o Every donation inter vivos, made by a person
having no children or descendants, legitimate or
legitimated by subsequent marriage, or
illegitimate, may be revoked or reduced as
provided in the next article, by the happening of
any of these events:
(1) If the donor, after the donation, should have
legitimate or legitimated or illegitimate children,
even though they be posthumous;
(2) If the child of the donor, whom the latter
believed to be dead when he made the donation,
should turn out to be living;
(3) If the donor subsequently adopt a minor child.
B-A-R (birth, adoption, reappearance)
o Two kinds of inofficious donations:
o Those referred to in article 760 and 761 –
where the donor at the time of donation either
had no children or though he had no more
o Those referred to in Articles 771 and 752 –
where the donor had at least one child already
at the time he made the donation
o This article only applies to donations inter vivos
Note: while 760 seeks to proptect the PRESUMPTIVE or expected
LEGITIME, 771 seeks to protect the ACTUAL legitime
Article 761
o In the cases referred to in the preceding article,
the donation shall be revoked or reduced insofar
as it exceeds the portion that may be freely
disposed of by will, taking into account the whole
estate of the donor at the time of the birth,
appearance or adoption of a child.
o The value of the estate (hereditary) is: the value at the
birth, appearance, or adoption PLUS the value of the
donation at the time donation was made
Article 762
Q: what does the DONEE must do if the donation is reduced?
A:
o If the property is still with him, return the property
o If it has been sold, give the value to the donor (price of
the sale)
o If it has been mortgaged, donor may pay off the debt,
but he can recover reimbursement from done
o If it cannot be returned, return its value at time of
perfection of donation
Article 763
o Provides for the prescription of Action for Revocation or
Reduction: (4 YEARS)
o If donation was made when there was no child,
it is the birth of the first child that counts.
o First child refers to first LEGITIMATE child
o Mere birth of a natural child is not a ground; it
is the recognition that is the ground for
reduction. Therefore the period of 4 years
should start from the time of such recognition
or acknowledgment
o In the case of LEGITIMATED children, the
period must be counted from the time of
ligitimation
20 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
Q: what happens if the legitimate child dies before the action to
reduce is judicially commenced, what happens to the donation?
A: it is believed that the donation should remain valid.
Article 764
o The donation shall be revoked at the instance of
the donor, when the donee fails to comply with
any of the conditions which the former imposed
upon the latter.
In this case, the property donated shall be
returned to the donor, the alienations made by the
donee and the mortgages imposed thereon by him
being void, with the limitations established, with
regard to third persons, by the Mortgage Law and
the Land Registration Laws.
This action shall prescribe after four years from
the noncompliance with the condition, may be
transmitted to the heirs of the donor, and may be
exercised against the donee's heirs.
o Article 764 is a clear case not only of revocation but also
a RESOLUTION, because under Article 1191, non-
compliance of conditions can be considered a resolutory
condition
Note: donor may not revoke donation by his own UNILATERAL
act. A court action is essential, if the done refuses to return the
property voluntarily
Q: Within what period must the conditions be performed?
A: if there is a period given, such period is controlling unless
extended by court. IF there is no period, the courts must fix a
reasonable term.
ROMAN CATHOLIC ARCHBISHOP OF MANILA ET.AL. VS. CA
HELD:
Although it is true that under Article 764 of the Civil Code an
action for the revocation of a donation must be brought within
four (4) years from the non-compliance of the conditions of the
donation, the same is not applicable in the case at bar. THE DEED
OF DONATION INVOLVED HEREIN EXPRESSLY PROVIDES FOR
AUTOMATIC REVERSION OF THE PROPERTY DONATED IN CASE
OF VIOLATION OF THE CONDITION THEREIN, HENCE A JUDICIAL
DECLARATION REVOKING THE SAME IS NOT NECESSARY.
WHEN A DEED OF DONATION, AS IN THIS CASE, EXPRESSLY
PROVIDES FOR AUTOMATIC REVOCATION AND REVERSION OF
THE PROPERTY DONATED, THE RULES ON CONTRACT AND THE
GENERAL RULES ON PRESCRIPTION SHOULD APPLY, AND NOT
ARTICLE 764 OF THE CIVIL CODE.
PRESCRIPTIVE PERIOD TO FILE ACTION TO REDUCE ON THE
GROUND OF IMPAIRMENT OF LEGITIME
“Under Article 1144 of the Civil Code, actions upon an
obligation created by law must be brought within ten years from
the time the right of action accrues. THUS, THE TEN-YEAR
PRESCRIPTIVE PERIOD APPLIES TO THE OBLIGATION TO REDUCE
INOFFICIOUS DONATIONS, REQUIRED UNDER ARTICLE 771 OF
THE CIVIL CODE, TO THE EXTENT THAT THEY IMPAIR THE
LEGITIME OF COMPULSORY HEIRS.”
( Eloy Imperial vs. CA et.al. GR.112483 Oct. 8, 1999
From when shall the ten-year period be reckoned? The case of
Mateo vs. Lagua, 29 SCRA 864, which involved the reduction for
inofficiousness of a donation propter nuptias, recognized that the
cause of action to enforce a legitime accrues upon the death of
the donor-decedent. Clearly so, since it is only then that the net
estate may be ascertained and on which basis, the legitimes may
be determined.
 PROPERTY
Finals Reviewer

Note: the right to revoke is transmissible to the donor’s heirs. But
if the heirs cannot agree whether to revoke or not, the following
rule should be applied:
o If the property donated is divisible, each heir can ask
the revocation of his own aliquot share
o If the object is essentially indivisible, each may ask for
the cash value of the his share
Note: action to revoke is WAIVABLE by the donor or his
successor-in-interest
Article 765
- The donation may also be revoked at the instance
of the donor, by reason of ingratitude in the
following cases:
(1) If the donee should commit some offense
against the person, the honor or the property of
the donor, or of his wife or children under his
parental authority;
(2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude, even
though he should prove it, unless the crime or the
act has been committed against the donee himself,
his wife or children under his authority;
(3) If he unduly refuses him support when the
donee is legally or morally bound to give support
to the donor.
from the time the donor had knowledge of the fact
and it was possible for him to bring the action.
Prescriptive Person – within 1 YEAR
Article 770
- This action shall not be transmitted to the heirs of
the donor, if the latter did not institute the same,
although he could have done so, and even if he
should die before the expiration of one year.
Neither can this action be brought against the heir
of the donee, unless upon the latter's death the
complaint has been filed.
Article 771
- Provides for Rules Re Inofficious Donations:
o Value of the estate is that which it had, not at
the time for donation, but at the time of the
donor’s death
o Inofficious donations may NOT be reduced
Some Implication Form the Transfer of Ownership
1. Donee gets the fruits
2. Donee can take advantage of natural or artificial
incorporation or attachments
3. The done bears the loss in case of destruction or
deterioration

Article 772
- Reason: One who has been the object of generosity - Provides for persons who can ask for the reduction of
must not turn ungrateful. Gratitude here is a MORAL as inoffious donation:
well as a LEGAL duty o Compulsory heirs of the donor
- The acts of ingratitude in this article are purely o The heirs and successors-in –interest of the
PERSONAL and EXCLUSIVE above mentioned compulsory hers)

[examples are provided for in page 950-951 of PARAS] Prescriptive Period

Article 766
- Although the donation is revoked on account of
ingratitude, nevertheless, the alienations and
mortgages effected before the notation of the
complaint for revocation in the Registry of
Property shall subsist.
The action to reduce must be brought within 5 YEARS
from the time of the donor’s death
Article 773
- Means that preference is given to earlier donations.
Therefore, if, it’s essential to reduce, the subsequent
one must first be reduced

Later ones shall be void. Revocation vs. Reduction

REVOCATION REDUCTION
Article 767
This is total regardless of Only PARTIAL, and apples only
- This article apples when:
whether the legitime has been when the legitime has been
o Recovery cannot be had from third persons
impaired or not impaired. Thus, the legitime
because they are innocent
must always be preserved
o Or when the property has been mortgaged
As a rule, for the benefit of the As a rule, for the benefit of the
donor heirs of the donor, since their
Article 768
- Contemplates on what fruits must be returned when the legitimes are supposed to be
donation is recovered: preserved
 The fruits accruing from the time other action As a rule, for the benefits of
filed must be returned if the ground is: the heirs of the donor
 B-A-R
 Inofficiousness of the donation Grounds for Revocation
 Ingratitude 1. Fulfillment of a resolutory conditions or charges
 The fruits received must be returned if the 2. Ingratitude
ground is non-compliance
Note: if the property was MONEY, fruit thereof shall be the legal Grounds for Reduction
rate interest 1. B-A-R
2. Inofficiousness
Article 769 3. Sufficient property is left for support of the donor
- The action granted to the donor by reason of 4. If made in fraud of creditors
ingratitude cannot be renounced in advance. This
action prescribes within one year, to be counted

21 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT
 PROPERTY
Finals Reviewer

(read page 962 of PARAS – void, ineffective, or unperfected oOo END oOo
donations)

DE LUNA V ABRIGO Goodspeed to all 2nd years…

Article764 of the NCC does not apply to onerous donations in view

of the specific provision of Article 733 providing that onerous
donations are governed by the rules on Contracts. Hence, action
for revocation must be brought not within 4 years from non-
compliance of the conditions of the donation but 10 years as the
rule on contracts provide.

HEIRS OF SALUD DIZON SALAMAT V TAMAYO

A transfer of real property from one person to another cannot

take effect as a donation unless embodied in a public document.

Assuming that Agustin really made the donation to respondent,

albeit orally, respondent cannot still claim ownership over the
property. While it is true that a void donation may be the basis of
ownership which may ripen into title by prescription, it is well-
settled that possession, to constitute the foundation of a
prescriptive right, must be adverse and under a claim of title.

CONCEPCION V CONCEPCION

It is the body of the document that and the statements contained

therein, and not the title, that should be considered in
ascertaining the intention of the donor.

Even when the donor calls the donation mortis cause instead of
inter vivos, even if he says it is to take effect after his death,
when from the body of the instrument or donation it is to be
gathered that the main consideration of the donation is not the
death of the donor but rather services rendered to him by the
donee or his affection for the latter, then the donation should be
considered as inter vivos, and when duly accepted, it transfers
title immediately to the donee, and the condition that the
donation is to take effect only after the death of the donor should
be interpreted as meaning that the possession and enjoyment of
the fruits of the property donated should take place only after the
donor’s death.

MAGLASANG V HEIRS OF CORAZON CABATINGAN

In the present case, the nature of the donations as mortis

causa is confirmed by the fact that the donations do not contain
any clear provision that intends to pass proprietary rights to
petitioners prior to Cabatingan's death.14 The phrase "to become
effective upon the death of the DONOR" admits of no other
interpretation but that Cabatingan did not intend to transfer the
ownership of the properties to petitioners during her lifetime.

We apply the above rulings to the present case. The herein

subject deeds expressly provide that the donation shall be
rescinded in case petitioners predecease Conchita Cabatingan. As
stated in Reyes v. Mosqueda,20 one of the decisive characteristics
of a donation mortis causa is that the transfer should be
considered void if the donor should survive the donee. This is
exactly what Cabatingan provided for in her donations. If she
really intended that the donation should take effect during her
lifetime and that the ownership of the properties donated be
transferred to the donee or independently of, and not by reason
of her death, she would have not expressed such proviso in the
subject deeds.

Considering that the disputed donations are donations mortis

causa, the same partake of the nature of testamentary
provisions21 and as such, said deeds must be executed in
accordance with the requisites on solemnities of wills and
testaments under Articles 805 and 806 of the Civil Code.

22 | P a g e
By Angel Fernandez & RJ Martinez
II – LLB, USC – College of Law Cases based on PROPERTY Syllabus for AY2010-2011 & Comments on Books of Tolentino & Paras and Atty. Gravador’s (old) PPT