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PROPERTY REVIEWER Part 10 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. 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. 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. Art. 691. In order to impose an easement on an undivided tenement, or piece of land, the consent of all the coowners 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 coowners separately from the others shall bind the grantor and his successors not to prevent the exercise of the right granted. 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. 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. Who may establish them: The OWNER possessing capacity to ENCUMBER property may constitute voluntary servitudes. (Art. 688) The usufructuary, and even the possessor in good faith, does not have the right to do so because the creation of a servitude is a disposition of part of the right of ownership, and no one but an owner may do this. A general capacity to contract is not sufficient. If there are various owners, ALL must CONSENT, but consent once given is irrevocable. (Art. 690 and 691) Hence, their consent need not be simultaneous. In whose favor they are established: (a) Praedial Servitudes For the owner of the dominant estate For any other person having any juridical relation with the dominant estate, if the owner ratifies it. However, the resolution of Direccion General de Ultramar, Feb. 18, 1893, laid down the rule that they may be 145

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established only in favor of the owner. (b)Personal Servitudes For anyone capacitated to accept In case of property under usufruct The usufructuary must not be prejudiced (Art 689) Rights and Obligations These are determined by the (1) Title, and (2) Possession (in case of prescription enlarging or diminishing the initial voluntary easement) (Art. 692) Where the owner bound himself to pay for the maintenance or do some service he may abandon his tenement and relieve himself of his obligation (Art. 693) Q: Should he abandon all the property? A: (JBL) Yes, because it is a personal obligation; but the owner may dispose of a portion before abandonment. This servitude burdens the whole: est tota in toto, et tota in qualibet parte (Tolentino): The abandonment referred in Art. 693 does not necessarily mean that of the entire servient tenement. The owner may opt to alienate only that part of the servient tenement. But if the servitude affects the entire servient tenement, the abandonment must be total. To produce the transmission of ownership over the tenement abandoned, the abandonment must be made in the proper juridical form required for the transmission of the ownership of immovable property. _________________________________________

Part 11 NUISANCE
Art. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property. To constitute a nuisance there must be an arbitrary or abusive use of property or disregard of commonly accepted standards set by society Most of the provisions were adopted form the California Civil Code except Arts 700702 Concept of Nuisance

The term nuisance is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent or unlawful personal conduct, working an obstruction or injury to a right of another, or of the public, producing such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage. Distinguished from Trespass NUISANCEit may consist of injury to realty or 146

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interference with its use or enjoyment, WITHOUT ENTRY upon it; TRESPASS- unauthorized ENTRY NUISANCEconsists of a use of ones property in such a manner as to cause injury to the property or right or interest of another, and generally results from the commission of an act beyond the limits of the property affected; TRESPPASS-direct infringement of anothers right of property NUISANCEinjury is consequential; TRESPASSinjury is immediate Distinguished from Negligence REASONABL ENESS is differently determined in the two actions: (1) NUISANCE- whether the defendants use of his property was unreasonable as to plaintiff, without regard to foreseeability of injury (2) NEGLIGENCE- whether it was unreasonable for the defendant to act as he did in view of the threatened danger or harm to one in plaintiffs position BASIS OF LIABILITY- to render a person liable either on the theory of nuisance or negligence, there must be some BREACH OF DUTY on his part (1) NUISANCE- liable for the resulting injury to others regardless of the degree of care or skill exercised to avoid such injury (2) NEGLIGENCE- based on a want of proper care APPLICATIO N (1) NUISANCE- ordinarily apply where the cause of action is for continuing harm caused by continuing or recurrent acts which cause discomfort or annoyance to plaintiff in the use of his property (2) NEGLIGENCE- ordinarily apply where the cause of action is for harm resulting from one act which created an unreasonable risk of injury Injury to Health The pollution of air so far as is reasonably necessary to the enjoyment of life and indispensable to the progress of society is NOT ACTIONABLE. BUT this right of pollution must not be exercised in an UNREASONABLE manner so as to inflict injury upon another unnecessarily Thus smoke, dust, noxious fumes and gases, or stenches or smells may constitute a nuisance under some circumstances. Dangerous to Safety ORDINARLY regarded as a NUISANCE e.g. the manufacture, storing, or keeping of explosive substances in large quantities in the vicinity of dwelling houses or places of business Annoyance to Senses Noise may constitute nuisance when it is of such character as to be of actual discomfort to persons of ordinary sensibilities e.g. noise of animals kept in residential neighborhood, slaughter houses located within 250 feet from ones dwelling Criterion of Annoyance In respect to those things which are nuisance because of the annoyance and discomfort they produce, they are to be judged by the effect they are calculated to produce upon ordinary 147

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people under normal circumstances, NOT BY THEIR EFFECT UPON THE OVER-SENSITIVE The standard as to the effect of an alleged nuisance must be the man of normal nervous sensibility and ordinary mode of living Shocking to Decency As a general rule, a building or other premises may become a nuisance by being used for the purpose either of lewdness or of assignation or prostitution. Art. 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition. Classification of Nuisance NATURE1. Nuisan ce Per Se or at Law 2. Nuisan ce Per Accidens or in Fact SCOPE OF THEIR INJURIOUS EFFECTS1. Public 2. Privat e 3. Mixed Nuisance Per Se (Nuisance at Law) It is an act, occupation, or structure which is a nuisance at all times and under any circumstances, REGARDLESS OF LOCATION OR SURROUNDINGS. e.g. house of ill-fame (irrespective of where it is located or how it was conducted) Nuisance Per Accidens (Nuisance in Fact) One that becomes a nuisance by reason of circumstances and surroundings It is not a nuisance by its nature but it may become so by reason of the locality, surrounding, or the manner in which it is conducted. e.g. slaughter house Distinction Between Per Se and Per Accidens Not in the remedy but in the proof of it PER SE- the wrong is established by proof of the mere act; PER ACCIDENS- by proof of the act and consequences Must be ascertained by judicial determination Public Nuisance The doing of or the failure to do something, that injuriously affects the safety, health, or morals of the public It causes hurt, inconvenience, or injury to the public, generally, or to such part of the public as necessarily comes in contact it public nuisance=common nuisance It is a direct encroachment upon public rights or property which results injuriously to the public e.g. squatters Private Nuisance One which violates only private rights and produces damages to but one or a few persons 148

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Many cases have extended the scope of a private nuisance as to include only annoyance not only in relation to lands and tenements by also to persons nuisance per se are responsible for its effect without limitation of conditions or of time. It is the GENERAL RULE that the occupier of land is liable for all nuisances that occur while he is in possession of the land, whether created by himself or by a licensee or by someone else who is on the land with his consent and knowledge. Liability of Transferees To render him liable, he must knowingly continue the nuisance, and generally, he is not liable for continuing it in its original form, unless he has been notified of its existence and requested to remove it, or has actual knowledge that it is a nuisance and injurious to the rights of others. Possessor must have notice of a nuisance created prior to the time he acquired his title before an action can be maintained against him for its abatement or for damages.

Distinction Between Public and Private Nuisances PUBLIC NUISANCE- affects the public at large; PRIVATE NUISANCE- affects the individual or a limited number of individuals only TEST- not the number of persons annoyed, BUT the POSSIBILITY of annoyance to the public by the invasion of its rights- THE FACT THAT IT IS IN A PUBLIC PLACE AND ANNOYING TO ALL WHO COME WITHIN ITS SPHERE Art. 696. Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefor in the same manner as the one who created it. Liability of Creator of Nuisance Generally speaking, he who creates a nuisance is liable for the resulting damages and, ordinarily, his liability continues as long as the nuisance continues. There must be a BREACH OF some DUTY on the part of a person sought to be held liable for damages resulting from a nuisance before an action will lie against him. He whose duty is to abate a nuisance should answer fro the consequences resulting from its continuance No one is to be held liable for a nuisance which he cannot himself physically abate All parties to the creation or maintenance of a

Nature of Liability

All persons who join or participate in the creation or maintenance of a nuisance are liable SOLIDARILY. BUT if two or more persons who create or maintain a private nuisance act entirely independent of one another, each is liable only so far as his acts contribute to the injury. Art. 697. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. 149

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Art. 698. Lapse of time cannot legalize any nuisance, whether public or private. No Prescription The creation and maintenance of a public nuisance is punishable criminally hence, the element of criminality, which characterizes the acts of creating the nuisance, should prevent the acquisition of a right to maintain it. Art. 699. The remedies against a public nuisance are: (1) A prosecution under the Penal Code or any local ordinance: or (2) A civil action; or (3) Abatement, without judicial proceedings. Criminal Prosecution Only for a public nuisance, and not for a private nuisance Criminal intent may be immaterial Persons Liable Can only be held liable when the nuisance complained of is the natural and direct result of his ones own act A person cannot be held criminally responsible for a nuisance on his property, if it does not proximately result from some act or omission of his own with respect to such property Judgment With Abatement Besides being sentenced to the penalty, may also be ordered to abate the nuisance Labnotes Q: Prescriptive Period for Judicial Abatement? A: NONE Art. 1143. The following rights, among others specified elsewhere in this Code, are not extinguished by prescription: (1) To demand a right of way, regulated in Article 649; (2) To bring an action to abate a public or private nuisance. Extrajudicial Abatement

In the exercise of the POLICE POWER, the State may authorize its officers summarily to abate public nuisances without resort to legal proceedings and without notice or hearing RIGHT is NOT ABSOLUTE, right is based upon necessity The means employed must not be unduly oppressive on individuals, and no more injury must be done to the property or rights of individuals than is necessary to accomplish the abatement It has be held, however, that the declare their property and the activities conducted therein a nuisance, and order their prevention and abatement WITHOUT giving the owners a HEARING, would be a VIOLATION of their right to DUE PROCESS Owner of the property taken is not entitled to compensation

Art. 700. The district health officer shall take care that one or all of the remedies against a public nuisance are availed of. Art. 701. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be commenced by the city or municipal mayor. Art. 702. The district health officer shall determine whether or not abatement, 150

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without judicial proceedings, is the best remedy against a public nuisance. Art. 703. A private person may file an action on account of a public nuisance, if it is specially injurious to himself. Special Injury to Individual GENERAL RULE: a public nuisance gives no right of action to any individual but must be abated by a proceeding instituted in the name of the State EXCEPTION: an individual who suffered some special damage by reason of a public nuisance, different from that sustained by the general public, may maintain a suit in equity for an injunction to abate it, or an action for damages A public nuisance falls within the scope of criminal law, except under certain conditions which makes it a tort as well. These circumstances exist when an individual has suffered particular harm from the nuisance, in which case it is treated as a private nuisance with respect to such persons. In other words, a public nuisance is not actionable by an individual unless and until it becomes as to him, a private nuisance; i.e., until he suffers some special and definite harm. Art. 704. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary: (1) That demand be first made upon the owner or possessor of the property to abate the nuisance; (2) That such demand has been rejected; (3) That the abatement be approved by the district health officer and executed with the assistance of the local police; and (4) That the value of the destruction does not exceed three thousand pesos. Right of Individual to Abate a Public Nuisance REQUISITES: 1. Must be exercised only in cases of urgent or extreme necessity 2. Nuisan ce must be actually existing at the time when abatement is undertaken 3. The summary abatement should be resorted to within a reasonable time after knowledge of the nuisance is acquired or should have been acquired by the person entitled to abate 4. Must give a reasonable notice of his intention; the code expressly mentions that a demand must be made 5. The means employed must be reasonable 6. The abatement must be approved by the district health officer 7. The property must not be destroyed unless it is absolutely necessary to do so; the civil code, however, provides a limitation, that the value of destruction shall not exceed three thousand pesos 8. The right must always be exercised 151

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with the assistance of the local police Art. 705. The remedies against a private nuisance are: (1) A civil action; or (2) Abatement, without judicial proceedings. Right to Damages A person may maintain an action at law for damages caused by a nuisance The payment of damages is generally a mere reparation for past injuries, and not an authority to continue the wrong. If the nuisance is temporary or recurrent in character, each repetition of it gives rise to a new cause of action, and successive actions will lie Defenses to Action The defendant in an action for damages by reason of a nuisance may set up the following defenses: o Publi c Necessity- Private interest must yield to the public good o Estop pel-One who voluntarily places himself in a situation whereby he suffers an injury will not be heard to say that his damage is due to a nuisance maintained by another. Art. 706. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private person be followed. Who may sue on Private Nuisances Possession alone of real estate is sufficient to sustain an action to recover damages for the maintenance of a nuisance upon adjoining property in such manner as to injure the enjoyment of the former Ownership of the legal title is not necessary Art. 707. A private person or a public official extrajudicially abating a nuisance shall be liable for damages: (1) If he causes unnecessary injury; or (2) If an alleged nuisance is later declared by the courts to be not a real nuisance. Remedies of Property Owner A person whose property is seized or destroyed as a nuisance may resort to the courts for the purpose of determining whether or not it was in fact a nuisance He may bring an action for replevin, or enjoin its sale and damages if it is has been sold; or action to enjoin private parties from proceeding to abate a supposed nuisance _________________________________________

Part 12 REGISTRY OF PROPERTY


Art. 708. The Registry of Property has for its object the inscription or annotation of acts and contracts relating to the ownership and other rights over immovable property. 152

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Concept A register signifies the act of annotation, and includes the book of memorandum where this notation is made; by extension is also means the office where these annotations are made The Registry of Real Property may be defined as a public center where the true condition of real estate is made clear by registering all transferable title of ownership and of real rights which affect it and even where the capacity of free disposition on the part of an individual is modified Purposes of the Principle of Publicity To give notice of the true status of the property To record transmissions and modifications of real rights To prevent fraud To guarantee the effectivity of rights Art. 709. The titles of ownership, or of other rights over immovable property, which are not duly inscribed or annotated in the Registry of Property shall not prejudice third persons. Who are third persons A person who has actual knowledge may be bound without registration The owner is not a third person within the meaning of this principle

Art. 710. The books in the Registry of Property shall be public for those who have a known interest in ascertaining the status of the immovables or real rights annotated or inscribed therein. The word public is a comprehensive, allinclusive term. Properly construed, it embraces every person. The interest need not be of a pecuniary character.

Art. 711. For determining what titles are subject to inscription or annotation, as well as the form, effects, and cancellation of inscriptions and annotations, the manner of keeping the books in the Registry, and the value of the entries contained in said books, the provisions of the Mortgage Law, the Land Registration Act, and other special laws shall govern.

Where the law speaks of prejudice to a third person, it refers to one who has not participated in the act or contract that was registered Where the law states that a third person cannot be prejudiced, it refers to one who bases his right on a registered title

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