mickey ingles (ateneo) - property reviewer

8/12/2019 Mickey Ingles (Ateneo) - Property Reviewer

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+ Ad Majorem Dei Gloriam

PROPERTY NOTES

PRELIMINARY PROVISIONSArt 414 All things which are or may e the o!ect o" a##ro#riation areconsi$ere$ either%

1& Immo'ale or real #ro#erty( or

)& Mo'ale or #ersonal #ro#erty&

What’s a thing?

• any object that exists and is capable of satisfying some human needs

• includes both objects that are already possessed or owned and those

that are susceptible of appropriation

• more comprehensie term !than property"# as there are things which are

not susceptible of appropriation and they are not included in the conceptof property

What’s property?

• refers to any thing which is already the object of appropriation or found

in the possession of man

$e%uisites of property&' (tility

• )apacity to satisfy some human wants

*' ubstantiity

• ,uality of haing existence apart from any other thing

-' Appropriability

• usceptibility of being possessed by man

• Res communes or common things are not capable of appropriation in

their entirety# although they may be appropriated under certainconditions in a limited way# and thereby become property in law

o .lectricity# oxygen# etc

• Res nullius or a thing may hae no owner because it has not yet been

appropriated# or because it has been lost or abandoned by the owner' itconstitutes property as long as it is susceptible of being possessed forthe use of man

o Wild animals# hidden treasure

• /hings cannot be considered as property when they are not susceptible

of appropriation because ofo legal impossibility !you can’t sell your body while you’re alive,

at least not legally) oro physical impossibility !you can’t own the moon, at least not yet)

$ights as property

• 0property1 is sometimes used to denote the thing with respect to which

legal relations between persons exist 2 the res oer which rights

!particularly ownership" may be exercised 2 and sometimes to the rightswith respect to the thing

• either real or property

What is a real right?

• $ight or interest belong to a person oer a specific thing

• Without a definite passie subject against whom such right may be

personally enforced

• Jus in re

• /he res of a real right may be

o 3ersonal property !as in pledge and chattel mortgage"

o $eal property !easement# real mortgage"

o .ither personal or real !as in ownership# possession# usufruct"

• 4f the res of a real right is real property# the right itself is real property5

otherwise it is personal property

)lassification of real rights based upon dominion&' Domino pleno 2 powers to enjoy and to dispose are united

a' Dominion# ciil possession# hereditary right*' Domino menos pleno 2 powers to enjoy and dispose are separated

a' urface right# usufruct-' Domino limitado 2 powers to enjoy and to dispose# though united# are

limiteda' 6y a guaranty !mortgage# pledge"b' 6y a charge !easement"c' 6y a priilege !pre7emption# redemption"

What is a personal right?

• $ight or power of a person

• /o demand from another as a definite subject

• /he fulfillment of the latter’s obligation'

• Jus in personam or jus ad rem

• 3ersonal right# or right of obligation# has the following elements8

&' Actie subject !person in whom the right resides"*' 3assie subject !person against whom the right is aailable"

Mic9ey 4ngles Ateneo :aw *;&*:ibrat8 <o stamping please=

1




PROPERTY NOTES

-' >bject or prestation or the conduct !to gie# to do# or not to do"' @uridical or legal tie which binds the parties to the obligation

$eal $ight

• Definite actie subjectwho has a right against allpersons generally as anindefinite passie subject

• >bject is generally a

corporeal thing

• )reated by mode’ and

title’

• .xtinguished by the loss

or destruction of the thingwhich it is exercised

• Directed against the

whole world !actio in rem

against -rd persons"

3ersonal $ight

• Definite actie subject and adefinite passie subject

• >bject always an incorporeal

thing

• )reated by title’

• 3ersonal right suries the

subject matter

• Directed against a particular

person !actio in personam"

What’s the importance of the classification into moables or immoables?

• 4n priate international law# general rule is that immoables are

goerned by the law of the country in which they are located# whereasmoables are goerned by the personal law of the owner which in casesis the law of his nationality or his domicile

• 4n criminal law# usurpation of property can ta9e place only with real

property' >n the other hand# robbery and theft can be committed onlyagainst personal property

• 4n procedural law# actions concerning real property are brought in the

$/) where the property is located# whereas actions inoling personalproperty are brought in the court where either the defendant or plaintiffresides'

o Borcible entry and unlawful detainer for $.A: property

o $eplein or manual deliery for 3.$><A:

• 4n contracts# only real property can be the subject matter of real

mortgage and antichresis# while only personal property can be thesubject matter of mutuum# oluntary deposit# pledge

• 4n order that the donation of an immoable may be alid# it must be

made in a public instrument' Bor moables# may be oral or in writing !ifmore than 3C;;;# need only to be in a priate instrument"

• Bor prescription ! and years for moables5 &; and -; years for

immoables"

• /ransactions inoling real property must be recorded in the $egistry of

property to affect -rd parties' <ot re%uired with personal property# except

for chattel mortgage cases'Art 41* The "ollowing are immo'ale #ro#erty%1& Lan$+ ,il$ings+ roa$s+ an$ constr,ctions o" all -in$s a$here$ to

the soil()& Trees+ #lants+ an$ growing "r,its+ while they are attache$ to the

lan$ or "orm an integral #art o" an immo'ale(.& E'erything attache$ to an immo'ale in a "i/e$ manner+ in s,ch a

way that it cannot e se#arate$ there"rom witho,t rea-ing thematerial or $eterioration o" the o!ect(

4& Stat,es+ relie"s+ #aintings or other o!ects "or ,se orornamentation+ #lace$ in ,il$ings or on lan$s y the owner o" theimmo'ale in s,ch a manner that it re'eals the intention to attachthem #ermanently to the tenements(

*& Machinery+ rece#tacles+ instr,ments or im#lements inten$e$ y theowner o" the tenement "or an in$,stry or wor-s which may ecarrie$ on ina ,il$ing or on a #iece o" lan$+ an$ which ten$$irectly to meet the nee$s o" sai$ in$,stry or wor-s(

0& Animal ho,ses+ #igeonho,ses+ eehi'es+ "ish #on$s or ree$ing#laces o" similar nat,re+ in cases their owner has #lace$ htem or#reser'es them with the intention to ha'e them #ermanentlyattache$ to the lan$+ an$ "orming a #ermanent #art o" it( theanimals in these #laces are incl,$e$(

2& 3ertilier act,ally ,se$ on a #iece o" lan$(5& Mines+ 6,arries+ an$ slag $,m#s+ while the matter thereo" "orms

#art o" the e$+ an$ waters either r,nning or stagnant(7& 8oc-s an$ str,ct,res which+ tho,gh "loating+ are inten$e$ y their

nat,re an$ o!ect to remain at a "i/e$ #lace on a ri'er+ la-e+ or

coast(19& :ontracts "or #,lic wor-s+ an$ ser'it,$es an$ other real rights

o'er immo'ale #ro#erty&

)lasses of immoable or real property !<4DA"&' 6y nature !cannot be carried from place to place"*' 6y incorporation !attached to an immoable in a fixed manner to be an

integral part thereof"-' 6y destination !placed in an immoable for the utility it gies"


2




PROPERTY NOTES

' 6y analogy !by express proision of law because it is regarded as unitedto the immoable property"

:ands# buildings# roads and constructions of all 9inds

•Must adhere to the soil

• 6uildings must be more or less of a permanent structure independent of

and regardless of the ownership of the land on which it is erected sincethe law ma9es no distinction !so possible to mortgage building een if inthe land of another# since it’s separate from the land

• $oads# whether public or priate# are immoable

• $eal property treated by the parties as personal property

o A building is by itself an immoable property irrespectie of

whether or not said structure and the land on which it is adhere tobelong to the same owner

o A alid real estate mortgate can be constituted only on the

building erected on the land belonging to another o /he parties to a contract of chattel mortgage may# by agreement#

treat as personal property that which by nature would be realproperty !estopped= o they can be subject to a writ of repleinbetween parties"

Eoweer# the chattel mortgage is not binding on third

persons'

/rees# plants and growing fruits

• 4mmoable while they are8

o Attached to the land# or

o Borm an integral part of an immoable

• >nce cut or uprooted# they become moable

• Growing crops or fruits# or ungathered products or fruits# may be treated

as personal property for the purposes of attachment# execution and thechattel mortgage law !ibal Falde"

• When growing crops are sold and before they are een harested# the

transaction is considered as sale of moables because it is a gien thatthey are to be gathered or harested for deliery

.erything attached to an immoable in a fixed manner

• Attachment must be such that

o 4t cannot be separated from the immoable

o Without brea9ing the material# or

o Deterioration of the object

• 4f temporarily separated# will still be regarded as immoable if there is an

intent to put them bac9 !but there are different opinions to this"

• 4ntent to attach permanently is essential 2 objects placed by humans

with intention to permanent annexation lose their identity as moables

tatues# reliefs# paintings# or other objects for use or ornamentation

• 4mmoable when8

o 3laced on the immoable by the owner of the latter# and

o 4n such a manner that it reeals the intention to attach them

permanently to the tenements

• <ot necessarily by him personally# can be by his agent

• 4f placed by a person not the owner li9e a lessee# the object will not

attain the character of immoable unless such person acts as an agentof the owner

Machinery# receptacles# instruments# or implements for an industry or wor9s

• 4mmoable only when8o 3laced by the owner of the tenement or his agent

o 4ndustry or wor9s must be carried on in a building or on a piece

of lando Machinery# etc must tend directly to meet the needs of the said

industry or wor9s

• Machinery which is moable in its nature only becomes immobilied

when placed in plant by the owner of the property or plant# but not whenso placed by a tenant# a usufructuary# or any person haing only atemporary right !Davao Saw Mill v Castillo)

o .xception !becomes immoable"8

&' uch person acted as the agent of the owner# or*' :ease agreement states that the machines will pass oer tothe lessor after the expiration of the lease agreement !S!alde" case"

• Must be essential and be principal elements of an industry or wor9s to

the business# not merely incidental to business !Mindanao #usCompany v City $ssessor "

o )ash registers# typewriters for hotels# restaurants# theaters are

merely incidental# these businesses can continue on withoutthem


3




PROPERTY NOTES

o Machineries of breweries used in the manufacture of li%uor#

though moable by nature# are immobilied because they areessential to said industries

• Bor purposes of taxation# it doesn’t matter who placed the machines 2

the owner or mere lessee# as long as it is essential and principalelements of an industry' /he term real property’ may include thingswhich should generally as personal property' 4t is a familiar phenomenonto see things classified as real property for purposes of taxation whichon general principle might be considered personal property' !Meralco vCentral #oard o% $ssessment $ppeals & in this case, the storage tan'swere placed by Meralco, who wasn’t the owner o% the land, but it wasstill considered immovable)

• Attachment or incorporation to immoable not essential# since they

become immoable because of destination# what is essential is theirutility

Animal houses# pigeon houses# beehies# fish ponds or breeding places of

similar nature• )onsidered immoable8

o 4n case their owner has placed them or preseres them

o With the intention to hae them permanently attached to the

lando And forming a permanent part of it'

o /he animals in these places are included'

• Must permanently form part of the land and so intended by the owner

Bertiliers actually used on a piece of land

• 4mmoable when

o Actually used on a piece of land

• Bertiliers 9ept in a barn are not immoable

Mines# %uarries and slag dumps

• 4mmoable when

o While the matter thereof forms part of the bed

o Meaning# the matter thereof remains unseered from the soil

• Waters# either running or stagnant# are classified as immoables

Doc9s and structures# though f loating

• 4mmoable if

o 4ntended by their nature and object

o /o remain at a fixed place on

o A rier# la9e or coasts

)ontracts for public wor9s and seritudes and other real rights oerimmoables

• Where the res of a real right is real property# the right itself is real

property' o ownership is real property if the thing owned is immoableo :oan is real property by analogy if secured by a real estate

mortgage

• Where it is personal property# the right itself is personal property

o .xception8 case of contracts for public wor9s which are

considered real property

•

:;APTER T<O% MOVA=LE PROPERTY

Art 410 The "ollowing things are $eeme$ to e #ersonal #ro#erty%1& Those mo'ales s,sce#tile o" a##ro#riation which are not

incl,$e$ in the #rece$ing article()& Real #ro#erty which y any s#ecial #ro'ision o" law is consi$ere$

as #ersonalty(.& 3orces o" nat,re which are ro,ght ,n$er control y science( an$4& In general+ all things which can e trans#orte$ "rom #lace to #lace

witho,t im#airment o" the real #ro#erty to which they are "i/e$&

Art 412 The "ollowing are also consi$ere$ as #ersonal #ro#erty%1& Oligations an$ actions which ha'e "or their o!ect mo'ales or$eman$ale s,ms()& Shares o" stoc- o" agric,lt,ral+ commercial an$ in$,strial entities+

altho,gh they may ha'e real estate&

)lasses of moable or personal property&' 3roperty not included in Art &C*' )onsidered personal property by special proision of law-' Borces of nature brought under control by science' 4n general# all moable things

a' Whether the property can be transported or carriedfrom place to place5


4




PROPERTY NOTES

b' Whether such change of lacation can be madewithout injuring the immoable to which the objectmay be attached# and

c' Whether the object does not fall within any one of the

cases in Art &CC' >bligations and actions !personal rights# they haing a definitepassie subject"

H' hares of stoc9I' >ther incorporeal personal property

a' 4ntellectual property such as copyrights# patents# etc

Art 415 Mo'ale #ro#erty is either cons,male or noncons,male& Tothe "irst class elong those mo'ales which cannot e ,se$ in amanner a##ro#riate to their nat,re witho,t their eing cons,me$( tothe secon$ class elong all the others&

4mportance of classification8

• )onsumable goods cannot be the subject matter of a commodatum

!unless for mere exhibition"

• 4n a mutuum# the subject matter is money or other consumable thing

)onsumable

• Depends on nature of thing itself

• )an’t be used in a manner appropriate to their nature without being

consumed

Bungible

• Depends on the intention or purpose of the parties

• )an be substitute by another thing of the same 9ind# %uantity and %uality

•

Money# while characteried as a moable# is generic and fungible' !#(v *ranco)

:;APTER T;REE% PROPERTY IN RELATION TO <;OM IT=ELON>S

Art 417 Pro#erty is either o" #,lic $ominion or o" #ri'ate ownershi#

3roperty is either of

&' 3ublic dominion or property owned by the tate !or its subdiisions" inits public or soereign capacity and intended for public use and not forthe use of the tate as a juridical person

*' 3riate ownership or property owned by8

a' /he state in its priate capacity5 9nown as patrimonial propertyb' 3riate persons# either indiidually or collectiely

3roperty is presumed to be tate property in the absence of any showing tothe contrary' !$egalian Doctrine"

What’s dominion?&' <ot owned by the tate but simply under its jurisdiction and

administration for the collectie enjoyment of all the people of the tate*' 3urpose is to sere the citiens# not the tate as juridical person-' $ises from the fact that the tate is the juridical representatie of the

social group

Art 4)9 The "ollowing things are #ro#erty o" #,lic $ominion%1& Those inten$e$ "or #,lic ,se+ s,ch as roa$s+ canals+ ri'ers+

torrents+ #orts an$ ri$ges constr,cte$ y the States+ an-sshores+ roa$stea$s an$ others o" similar character

)& Those which elong to the State+ witho,t eing "or #,lic ,se+an$ are inten$e$ "or some #,lic ser'ice or "or the$e'elo#ment o" the national wealth

/hree 9inds of public dominion property&' 4ntended for public use

• )an be used by eerybody

*' <ot for public use but intended for some specific public serice

• >nly be used by duly authoried people# such as goernment

buildings# etc

-' 4ntended for the deelopment of national wealth# een if not employedfor public use or serice

• Minerals# coal# oil# forests

)harging of fees to the public does not affect the public character of the roador its character as property for public use'

What are other property of similar character to those intended for public use?&' 3ublic streams# rier channels# rier beds# etc*' Accretions to the shores of the sea


5




PROPERTY NOTES

-' ubmerged lands or lands reclaimed from the sea by the goernment

• Mere reclamation of certain foreshore land does not conert these

inalienable natural resources of the state into alienable ordisposable lands of the public domain'

• /here must be a law or proclamation officially classifying themsuch'

' :ands that disappeared into the seaC' )anals constructed on priate lands of priate ownership but the owner

loses his proprietary right oer said canal through prescription byallowing the public to use it for transportation

H' Boreshore lands when the sea moed toward an estate and the tideinade it# the inaded property becomes foreshore and passes to thepublic realm7 Boreshore land is the strip of land that lies between the high and

low water mar9sI' :ot on which stairways were built for the use of the people as

passageway to the highway

• $oads refer to those constructed by the national goernment

• )anals constructed by priate persons oer priate lands are of priate

ownership

• $oadstead is a place less sheltered or enclosed than a harbor where

ships may ride at anchor

3roperties of public dominion are outside of the commerce of man' Again#their purpose is to sere the citiens'/hey can not be the object of appropriation either by the tate or priatepersons'oJ&' )annot be sold# leased or be the subject of contracts

*' )annot be ac%uired by prescription# not een by municipalities asagainst the tate-' )annot be encumbered# attached# or be subject to ley and sold at

public auction'' )annot be burdened with easementsC' )annot be registered under the land registration law and be the subject

of a /orrens title

• 4nclusion of public dominion property does not confer title on the

registrant

3ublic lands Goernment lands3ublic lands

• :ands of the public domain

• Does not include all lands of goernment ownership but only so much of

said lands as are thrown open to priate appropriation and settlementby homestead law

Goernment lands

• 6roader term

• 4ncludes not only public lands# but alsoJ

&' other lands of the goernment already resered or deoted topublic use#

*' or subject to priate rights#-' and patrimonial lands

Alienation of public agricultural land

• (nless pubic land is shown to hae been reclassified and alienated by

the tate to a priate person# it remains part of the inalienable publicdomain

• All other lands are presumed to belong to the tate

Art 4)1 All other #ro#erty o" the State+ which is not o" the characterstate$ in the #rece$ing article+ is #atrimonial #ro#erty&

3atrimonial property

• 3roperty of the tate owned by it in its priate or proprietary character

• <ot for public use# serice or deelopment of the national

wealth

• May be ac%uired by priate indiiduals or juridical persons through

prescription5 can be the object of an ordinary contract

Art 4)) Pro#erty o" #,lic $ominion+ when no longer inten$e$ "or#,lic ,se or "or #,lic ser'ice+ shall "orm #art o" the #atrimonial#ro#erty o" the State&

3roperty of the <ational Goernment

• <ot self7executing

• /here must be a formal declaration by the executie !exercised by the

3resident" or possibly legislatie department that the property is no


6




PROPERTY NOTES

longer needed for public use or for public serice before the same canbe classified as patrimonial property

• A positie act declaring land as alienable and disposable is re%uired

&' 3residential proclamation or executie order

*' Administratie action-' 4nestigation reports of 6ureau of :ands inestigators' :egislatie act or a statute !Sec o% D+R v -ap"

• )lassification of public lands is the exclusie prerogatie of the

.xecutie Department 2 courts hae no authority !Sec o% D+R v -ap)

• Abandonment cannot be inferred from non7use' !Roponggi case)

• /wo re%uisites for judicial confirmation of imperfect or incomplete title#

under )A &&./ open# continuous# exclusie and notorious possession and

occupation of the subject land by himself or through hispredecessors7in7interest under a bona fide cliam of ownershipsince time immemorial or from @une &*# &KC

0/ classification of the land as alienable and disposable land of

the public domain !Sec o% D+R v -ap)• (nclassified land? )onsidered as forest land !Sec o% D+R v -ap)

3roperty of 3olitical ubdiisions

• Bor proinces# cities and municipalities# the conersion must be

authoried by law

• Municipal corporation has discretionary power to withdraw a street from

public use and sell it' !Cebu 12ygen v #ecilles"

Art 4). The #ro#erty o" #ro'inces+ cities+ an$ m,nici#alities is $i'i$e$into #ro#erty "or #,lic ,se an$ #atrimonial #ro#erty&

Art 4)4 Pro#erty "or #,lic ,se+ in the #ro'inces+ cities+ an$

m,nici#alities+ consist o" the #ro'incial roa$s+ city streets+ m,nici#alstreets+ the s6,ares+ "o,ntains+ #,lic waters+ #romena$es+ an$ #,licwor-s "or #,lic ser'ice #ai$ "or y sai$ #ro'inces+ cities orm,nici#alities&

All other #ro#erty #ossesse$ y any o" them is #atrimonial an$ shall ego'erne$ y this :o$e+ witho,t #re!,$ice to the #ro'isions o" s#eciallaws&

3roperty of 3olitical ubdiisions

• <ote that the articles spea9 of property for public use# indicating that

properties for public serice are patrimonial' !ambulance of the localgoernment"

• 3olitical subdiisions cannot register as their own any part of the public

domain# unless it is first shown that a grant thereof has been made orpossession has been enjoyed during the period necessary to establish apresumption of ownership'

• 4f the property is owned by the municipality in its public and

goernmental capacity# the property is public and )ongress hasabsolute control oer it'

• 4f it is owned in its priate or proprietary capacity# then it is patrimonial

and )ongress has no control oer it' !page H-# de :eon"

)ase doctrines8

• /he use of subdiision roads by the general public does not strip it of its

priate character'

• /ransfer of ownership from the subdiision owner7deeloper to the local

goernment is not automatic but re%uires a positie act from the owner7deeloper before the city or municipality can ac%uire dominion oer thesubdiision roads' (ntil and unless the roads are donated# ownershipremains with the owner7deeloper' !3oodridge School, nc v $R#Construction Co, nc)

Art 4)* Pro#erty o" #ri'ate ownershi#+ esi$es the #atrimonial #ro#ertyo" the State+ #ro'inces+ cities+ an$ m,nici#alities+ consists o" all#ro#erty elonging to #ri'ate #ersons+ either in$i'i$,ally orcollecti'ely&

3riate property&' 6elonging to priate persons# either indiidually or collectiely

*' 6elonging to the tate and any of its subdiisions which are patrimonialin nature

• /here is nothing that will prohibit churches from alienating things

classified into sacred# religious# and holy'’

Art 4)0 <hene'er y #ro'ision o" law+ or an in$i'i$,al $eclaration+ thee/#ression ?immo'ale things or #ro#erty@ or ?mo'ale things or#ro#erty@ is ,se$+ it shall e $eeme$ to incl,$e+ res#ecti'ely+ thethings en,merate$ in :ha#ter 1 an$ :ha#ter )&


7




PROPERTY NOTES

<hene'er the wor$ ?muebles” or ?",rnit,re+@ is ,se$ alone+ itshall not e $eeme$ to incl,$e money+ cre$its+ commercial sec,rities+stoc-s an$ on$s+ !ewelry+ scienti"ic or aristic collections+ oo-s+me$als+ arms+ clothing+ horses or carriages an$ their accessories+

grains+ li6,i$s an$ merchan$ise+ or other thing which $o no ha'e astheir #rinci#al o!ect the ",rnishing or ornamenting o" a ,il$ing+e/ce#t where "rom the conte/t o" the law+ or o" the in$i'i$,al$eclaration+ the contrary clearly a##ears&

TITLE II O<NERS;IP:;APTER ONE% O<NERS;IP IN >ENERAL

Art 4)2 Ownershi# may e e/ercise o'er things or rights

>wnership is theJ

• 4ndependent right of a person to the exclusie enjoyment and control of

a thing

• 4ncluding its disposition and recoery subject only to therestrictions or limitations established by law and the rights ofothers

6eneficial >wnership

• >wnership recognied by law and capable of being enforced in court

• $ight to enjoyment in one person# legal title is in another

<a9ed >wnership

• .njoyment of all the benefits and priileges of ownership

>wnership may be exercised oer things or rights&' /hing 2 usually refers to corporeal property

*' $ights 2 whether real or personal# res of rights may be corporeal orincorporeal

Art 4)5 The owner has the right to en!oy an$ $is#ose o" a thing+witho,t other limitations than those estalishe$ y law&The owner has also a right o" action against the hol$er an$ #ossessoro" a thing in or$er to reco'er it&

/he seen jus7es&' 3ossidendi

*' (tendi-' Bruendi' AccessionisC' Abutendi

H' DisponendiI' Findicandi

$ight to possess or jus possidendi

• right to hold a thing or enjoy a right !Art C*-"

• may be exercised in one’s own name or in that of another

&' $ight to use not necessarily included

• May be in the concept of an owner or a mere holder with the

ownership pertaining to another

• $ight to possess does not always include the right to use

*' @udgment of ownership may not include possession

• 3erson may be declared owner but he may not be entitled to

possession which may be in the hands of another such as a tenant

• 6ut= /his doctrine may be ino9ed only where the actual possessorhas some rights which must be respected

-' Where claim to possession based on claim of ownership

• Where the ownership of a property was decided in a judgment# the

deliery of possession should be considered included in thedecision where the defeated party’s claim to the possession isbased on his claim of ownership

' Duty of endor to delier possession of thing sold

• )ontract of sale# endor bound not only to transfer ownership# but

also delier

• )onsidered deliered only when endee has control and

possession

$ight to use and enjoy or jus utendi• necessarily includes the right to transform and the right to exclude any

person from the enjoyment and disposal thereof

• he may use such force as may be reasonably necessary to repel or

preent an actual or threatened unlawful physical inasion or usurpation!Art *K"

• he may enclose or fence his property !Art -;"

• limited because he cannot ma9e use of such property in a manner to

injure the rights of a third person


8




PROPERTY NOTES

$ight to receie the fruits and accessories or jus %ruendi and accessionis

• ownership gies the right by accession to eerything which is produced

thereby !see art ;"

$ight to consume or jus abutendi

• right of the owner to consume a thing by its use 2 the use that

extinguishes

$ight to dispose or alienate or jus disponendi

• either totally !sale or donation" or partially !pledge# mortgage# etc"

• includes right not to dispose

• duty of endor to transfer ownership

o endor must be the owner or authoried to sell thing

o sufficient that he be the owner at the time of the deliery of the

thing sold

• only the absolute owner can pledge or mortgage one’s property

$ight to recoer possession andLor ownership or jus vindicandi

• true owner must resort to judicial process for the recoery of the

property

• he cannot ta9e the law into his own hands

Actions aailable to recoer possession andLor ownership

&' $ecoery of personal property8 $emedy of $eplein or manual delieryof personal property$e%uisites !$ule H;# $ules of )ourt"8 Applicant must show by his own affidait or that of some other personwho personally 9nows the facts8

i' /hat the applicant is the owner of the propertyclaimed# particularly describing it# >$ is entitled to thepossession thereof

ii' /hat the property is wrongfully detained by theaderse party# alleging the cause of detention thereofaccording to the best of his 9nowledge# informationand belief

• Applicant has burden of proing his ownership or right of

possession oer the property in %uestion

• 6oth a principal remedy !regain possession" and a proisional

remedy !allow the plaintiff to retain the thing wrongfullydetained by another pendente lite"

*' $ecoery of real property8

Borcible entry and unlawful detainer !accion interdictal)• Borcible entry

$e%uisites8i' 4nstituted by person depried of possessionii' (nlawful depriation of the possession of any land or

building# by force# intimidation# threat# strategy orstealth

iii' Biled within & year from date of actual entry !but forcases of stealth and strategy# from date of 9nowledgeof actual 9nowledge"

i' At the M/) where property is located

• (nlawful detainer

$e%uisites8i' 4nstituted by landlord# endor# endee or other personagainst who the possession of any land or building isunlawfully withheld

ii' (nlawful possession after the expiration ortermination of the right to hold possession !by irtue of contract# etc"

iii' Biled within & year from date of last demand to acatei' at the M/) where property is located

• Bor unlawful detainer# it is essential that the plaintiff’s supposed acts of

tolerance must hae been present right from the start of the possessionwhich is later sought to be recoered !Falde# jr )A"

• >nly issue inoled in both is mere physical or material possession

!possession de %acto"# not juridical or ciil possession !possession de jure"

• 3laintiff need only to allege and proe prior possession de facto and

undue depriation thereof

• 4t’s a %uieting process

• ummary in nature !to sole the problem %uic9ly and to protect the

rights of the possessor"

• Difference between the two is the time when possession became

unlawful 2 forcible entry8 time of entry5 unlawful detainer8 possession atfirst was legal# then became illegal


9




PROPERTY NOTES

• 4f complaint fails to aer facts constitutie of forcible entry or unlawful

detainer as when it does not state how entry was effected or how andwhen the dispossession started# the remedy should either be accion publiciana or an accion reinvindicatoria !Falde# jr )A"

o Must be apparent in the face of the complaint !armiento )A"

• @urisdictional facts 2 what does a plaintiff hae to allege?

o Bor unlawful detainer

i' 3laintiff’s right oer property !describing the property"ii' 3rior lawful possession

i' 4f by tolerance# acts of tolerance must hae beenpresent right from the start of the possession

ii' 4f by lease# contractual agreement must be showniii' 6ecame unlawful !by termination of lease contract or non7

payment of rents"i' .xtrajudicial demand to acate

i' 4f by non7payment# demand letter to 3A $.</ and

FA)A/. premises !bar %uestion"' Within one year from last demand

• )an the M/) rule on the issue of ownership in an ejectment case? es=

6ut only proisionally'

• /he primal rule is that the principal issue must be that of

possession# and that ownership is merely ancillary# in which casethe issue of ownership may be resoled but only for the purpose ofdetermining the issue of possession'

• 4t must sufficiently appear from the allegations in the complaint that

what the plaintiff really and primarily see9s is the restoration ofpossession'

• 4nferior court cannot adjudicate on the nature of ownership where

the relationship of lessor and lessee has been sufficientlyestablished in the ejectment case# unless it is sufficientlyestablished that there has been a subse%uent change in ortermination of the relationship between the parties'

• /he rule in forcible entry cases# but not in those for unlawful

detainer# is that a party who can proe prior possession can recoer such possession een against the owner himself' Ee has thesecurity that entitles him to remain on the property until he islawfully ejected by a person haing a better right through an accion publiciana or accion reinvindicatoria

• Where the %uestion of how has prior possession hinges on the

%uestion of who the real owner of the disputed portion is# theinferior court may resole the issue of ownership and ma9e adeclaration as to the owner' 6ut# it is merely proisional# and does

not bar nor prejudice an action between the same parties inolingthe title to the land' !Asis Asis Fda de Guearra# *;;"

3lenary action to recoer possession !accion publiciana)$e%uisites8

i' Must be within a period of ten years otherwise the realright of possession is lost

ii' >ne who claims to hae a better right must proe not onlyhis right but also the identity of the property claimed

iii' Biled in the $/) where the property is located

• 4ssue inoled is possession de jure of realty independently of title !as

compared to interdictal, possession de %acto"

• @udgment rendered here is conclusie only on the %uestion of

possession# not that of ownership• @urisdictional facts?

&' $ight of plaintiff oer property*' 3eriod to bring interdictal has expired-' Don’t 9now na'

Action to recoer possession based on ownership !accion reivindicatoria)$e%uisites8

i' $ight of plaintiff oer propertyii' Biled at the $/) where the property is located

• ee9s recoery of possession based on ownership# with claim of title

• 4ssue inoled is ownership which ordinarily includes possession#

although a person may be declared owner but he may not be entitled topossession because the possessor has some rights which must berespected

• Action for reconeyance 2 prescribes in &; years from the point of the

registration of the deed or the date of issuance of the certificate of title!chec9 boo9="5 years in cases of fraud counted therefrom on date ofissuance of the certificate of title oer the property

o Action for reconeyance based on fraud and where plaintiff is

in possession of the property subject of the acts does notprescribe' !:eyson 6ontuyan"


10




PROPERTY NOTES

o <68 hould not hae passed to a third person'

All three actions are actions in personam'

4njunction as a remedy for recoery of possession• 4njunction is a judicial process whereby a person is re%uired to do or

refrain from doing a particular thing'

• >eneral r,le8 )ourt should not by means of a preliminary injunction

transfer property in litigation from the possession of one party toanother'

• 4n order that a preliminary injunction may be granted at any time after

the commencement of the action and before judgment8$e%uisites8

i' there must exist a clear and positie right oer the propertyin %uestion which should be judicially protected throughthe writ5 and

ii' the acts against which the injunction is to be directed are

iolatie of such right• What if there is someone actually possessing the property sought to

recoer?o 3erson not ordinarily allowed to aail of remedy of preliminary

preentie or mandatory injunction but must bring thenecessary action for the recoery of possession'

• 4njunctie relief will not be granted to ta9e property out of the possession

or control of one party and place it in that of another whose titleJo Eas not been clearly established# or

o Who did not hae such possession or control at the inception

of the case

• 3roper function is to maintain the status %uo

• 4njunction cannot be a substitute for other suits for recoery of

possession# hence# its denial will not bar the institution of the moreappropriate remedy

• Why? Well# a writ of injunction is an e%uitable relief5 determination of

title is a legal remedy 2 that’s why

When can injunction be allowed?

• 4n actions for forcible entry# the dispossessed plaintiff may file# within ten

days from filing of the complaint# a motion for a writ of preliminarymandatory injunction to restore him in possession'

o /he court MA grant 4n order to preent the defendant from

committing further acts of dispossession during the pendencyof the case

o 4ssue of ownership may not be put in issue

• .jectment cases where the appeal is ta9en# the lessor is gien the sameremedy granted aboe'

• Where the actual possessor of the property who is admittedly the owner#

see9s protection from repeated or further intrusions into his property'o .en if it turns out that he isn’t the owner# he may still aail of

the e%uitable remedy of injunction to protect his possession'

• When there is a clear finding of right of ownership and possession of a

land in faor of the party who claims the subject property in possessionof another is the undisputed owner as where the property is coered bya /orrens title pointing to the party as the owner' !>f course# chec9 theissuance of the title if it was in bad faith"

• When urgency# expediency and necessity re%uire immediate possession

as where material and irreparable injury will be done which cannot be

compensated by damages'

Writ of possession as a remedy

• Writ of possession is an order whereby a sheriff is commanded to place

a person in possession of a real or personal property# such as when aproperty is extrajudicially foreclosed'

• 4mproper to eject another from possession# unless sought in connection

with a81& :and registration proceeding)& Boreclosure of mortgage+ proided# that no third person has

interened !3<6 )A 2 in this case# a third person wasoccupying the lot subject to the writ' /he ) held that the anex7parte petition for issuance of a possessory writ is not the

judicial process referred to in Art --"5.& .xecution sales

:imitations on the right of ownership:imited by

./ by the tate’s power to tax# police power# and eminent domain0/ those imposed by law such as legal easement4/ those imposed by the owner himself# such as oluntary

easement5/ those imposed by the grantor of the property on the grantee


11




PROPERTY NOTES

6/ those arising from conflicts of priate rights which ta9e place inaccession continua

7/ prohibition against the ac%uisition of priate lands by aliens

Art 4)7 The owner or law",l #ossessor o" a thing has the right toe/cl,$e any #erson "rom the en!oyment an$ $is#osal thereo"& 3or this#,r#ose+ he may ,se s,ch "orce as ay e reasonaly necessary tore#el or #re'ent an act,al or threatene$ ,nlaw",l #hysical in'asion or,s,r#ation o" his #ro#erty&

3rinciple of self7help$e%uisites8i' 3erson defending must be the owner or lawful possessor ii' (se of reasonable forceiii' >nly be exercised at the time of an actual or threatened

dispossession !no delay"i' Actual or threatened physical inasion or usurpation which is

unlawful

$ead with Art &K of the )iil )ode'

Art 4.9 E'ery owner may enclose or "ence his lan$ or tenements ymeans o" walls+ $itches+ li'e or $ea$ he$ges+ or y any other meanswitho,t $etriment to ser'it,$es constit,te$ thereon&

$ight to enclose or fence

• :imited by existing seritudes imposed on the land or tenement

Art 4.1 The owner o" a thing cannot ma-e ,se thereo" in s,ch manneras to in!,re the rights o" a thir$ #erson&

Art 4.) The owner o" a thing has no right to #rohiit the inter"erence o"another with the same+ i" the inter"erence is necessary to a'ert animminent $anger an$ the threatene$ $amage+ com#are$ to the $amagearising to the owner "rom the "rom the inter"erence+ is m,ch greater&The owner may $eman$ "rom the #erson ene"ite$ in$emnity "or the$amage to him&

tate of necessityGeneral rule8 a person cannot interfere with the right of ownership of another

.xception8 tate of necessity# but of course# ciil indemnification can beas9ed for

$e%uisites8

i' interference is necessary to aert an imminent danger and thethreatened damage to actor or a third person !but the damagemust be proportionate and reasonable"

ii' imminent danger or threatening damage must be much greater than the damage arising to the owner of the property

Art 4.. Act,al #ossession ,n$er claim o" ownershi# raises a$is#,tale #res,m#tion o" ownershi#& The tr,e owner m,st resort to !,$icial #rocess "or the reco'ery o" the #ro#erty&

• Applies to both immoable and moable property

$e%uisites to raise the disputable presumption of ownership8i' Actual !physical or material" possession of the propertyii' 3ossession must be under claim of ownership

@udicial process contemplated

• Means ejectment suit or reinidicatory action

• +28parte petition for issuance of a possessory writ is not a judicial

process# as it is non7litigious !3<6 )A"

Art 4.4 In an action to reco'er+ the #ro#erty m,st e i$enti"ie$+ an$ the#lainti"" m,st rely on the strength o" his title an$ not on the wea-nesso" the $e"en$antBs claim&

$e%uisites8i' 3erson who claims that he has a better right to the property must

satisfactorily proe both ownership and identity

ii' 6urden of proof lies on the party who substantially asserts theaffirmatie of an issue

iii' $eliance on strength of eidence and not upon the wea9ness of theopposing party

• 3arty who desires to recoer must fix the identity of the land claimed by

describing the location# area and boundaries thereof o 4f a party fails to identify sufficiently and satisfactorily the land

which he claims as his own# his action must necessarily fail


12




PROPERTY NOTES

o While the identity of the property must be established# it is not

necessary for the plaintiff to establish the precise location andextent of the lands claimed or occupied by the defendant

• General rule8 where there is a conflict between the area and boundaries

of a land# the latter preails'o An area delimited by boundaries properly identifies a parcel of

land.xception8 where the boundaries relied upon do not identify theland beyond doubto 4n such cases where there appears to be an oerlapping of

boundaries# the actual sie of the property gains importance'

.%uiponderance of eidence? $ule for defendant'

.idence to proe ownership&' A /orrens title*' /itle from the panish goernment

-' 3atent duly registered in the $egistry of 3roperty' Deed of saleC' >perating a business for nine years in defendant’s own name# without

protest of plaintiff H' >ccupation of a building for a long time without payment of rentI' :etter in which defendant recognied the ownership of the property by

the plaintiff !estoppel"' >pen# continuous# exclusie# aderse and notorious actual possession

and occupation of parcels of land

4ndicia of claim of ownership&' /ax declarations and tax receipts 2 only prima facie eidence of

ownership or possession5 but they are good indicia of possession in theconcept of owner

)onclusieness of certificates of title

• 4ndicates true and legal ownership of a priate land and should be

accorded great weight as against tax declarationso but is not conclusie if the land had already been preiously

registered

Art 4.* No #erson shall e $e#ri'e$ o" the #ro#erty e/ce#t ycom#etent a,thority an$ "or #,lic ,se an$ always ,#on #ayment o" !,st com#ensation&

Sho,l$ this re6,irement e not "irst com#lie$ with+ the co,rts shall#rotect+ an$ in a #ro#er case+ restore the owner in his #ossession&

3ower of eminent domain

$e%uisites8i' /a9ing must be done by competent authorityii' Must be for public useiii' >wner paid just compensationi' $e%uirement of due process of law must be obsered

hould the re%uirements be not first complied with# restore the property tohis possession'

• 6ut can be lost by estoppel or ac%uiescence

Art 4.0 <hen any #ro#erty is con$emne$ or seie$ y com#etenta,thority in the interest o" health+ sa"ety or sec,rity+ the owner thereo"shall not e entitle$ to com#ensation+ ,nless he can show that s,chcon$emnation or sei,re is ,n!,sti"ie$&

)ondemnation or seiure of property in exercise of police power

• $elates to use and enjoyment not ownership of property

• <o ta9ing of property inoled

• 3ersons affected not entitled to financial compensation

Art 4.2 The owner o" a #arcel o" lan$ is the owner o" its s,r"ace an$ o"e'erything ,n$er it+ an$ he can constr,ct thereon any wor-s or ma-eany #lantations an$ e/ca'ations which he may $eem #ro#er+ witho,t$etriment to ser'it,$es an$ s,!ect to s#ecial laws an$ or$inances& ;ecannot com#lain o" the reasonale re6,irements o" aerial na'igation&

urface rights of a landowner

$ight of the owner of a parcel of land to construct any wor9s or ma9e anyplantations and excaations on his land is subject to8 !:.$$t"&' pecial laws*' :ocal ordinances-' .xisting seritudes or easements' $easonable re%uirements of aerial naigationC' $ights of third persons

:imitations imposed by special laws

• 4ncludes the regalian doctrine


13




PROPERTY NOTES

• >wnership of said land does not gie him the right to extract or utilie

the said minerals without the permission of the tate to which saidminerals belong

o Bor the loss sustained by such owner# he is entitled to just

compensation under mining laws or expropriation proceedings

Art 4.5 ;i$$en treas,re elongs to the owner o" the lan$+ ,il$ing+ orother #ro#erty on which it is "o,n$&

Ne'ertheless+ when the $isco'ery is ma$e on the #ro#erty o"another+ or o" the state or any o" its s,$i'isions+ an$ y chance+ onehal" thereo" shall e allowe$ to the "in$er& I" the "in$er is a tres#asser+eh shall not e entitle$ to any share o" the treas,re&

I" the things "o,n$ e o" interest to science or the arts+ theState may ac6,ire them at their !,st #rice+ which shall e $i'i$e$ incon"ormity with the r,le state$&

Art 4.7 =y treas,re is ,n$erstoo$+ "or legal #,r#oses+ any hi$$en an$,n-nown $e#osit o" money+ !ewelry+ or other #recio,s o!ects+ thelaw",l ownershi# o" which $oes not a##ear&

$e%uisites8i' Deposit of money# jewelry or other precious objectsii' Eidden and un9nowniii' :awful ownership of which does not appear

:;APTER T<O% RI>;T O3 A::ESSION>ENERAL PROVISIONSSE:TION I RI>;T O3 A::ESSION <IT; RESPE:T TO<;AT IS PRO8C:E8 =Y PROPERTY

Art 449 The ownershi# o" #ro#erty gi'es the right y accession toe'erything which is #ro$,ce$ therey+ or which is incor#orate$ orattache$ thereto+ either nat,rally or arti"icially&

Accession defined Accession is the right of the owner of a thing# real or personal# to become theowner of eerything which is8

&' produced thereby#*' incorporated

-' attached thereto#either naturally or artificially'

Accession Accessory

• fruits of# additions to#

improements upon a thing

• includes building# planting and

sowing

• alluion# aulsion# change of

course of riers# formation ofislands

• not necessary to the principal

thing

• things joined to# included with

the principal for the latter’sembellishment# better use orcompletion

• necessary to principal thing

example8 9ey of a house# bow of aiolin

Accession# not a mode of ac%uiring ownership

• Merely a conse%uence of ownership• .xercise of the right of ownership

• ince the law itself gies the right# accession may# 4< A .<.# be

considered as a mode of ac%uiring property under the law

Ninds of accession./ $ccession discreta

• .xtension of the right of ownership of a person to the products of a

thing which belongs to such a person

• 4ncludes natural# industrial# and ciil fruits !Art &"

0/ $ccession continua

• .xtension of the right of ownership to that which is incorporated or

attached to a thing which belongs to such person

• May ta9e place8

• With respect to real property

• Accession industrial !building# planting# sowing"5 or

• Accession natural !alluion# aulsion# change of rier

course# and formation of islands"

• With respect to personal property

• )onjunction !attachment# engraftment"

• )ommixtion or confusion

• pecification


14




PROPERTY NOTES

Art 441 To the owner elongs%o The nat,ral "r,its(

o The in$,strial "r,its(

o The ci'il "r,its&

Art & refers to accession discreta

$ight of owner to the fruitsGeneral rule8 All fruits belong to the owner of a thing'.xception8 A person# other than the owner of a property# owns the fruitsthereof8&' possession in good faith by another !possessor entitled to the fruits

receied before possession is legally interrupted"*' usufruct !usufructuary entitled to all the fruits of the property on usufruct"-' lease of rural lands !lessee gets fruits# lessor gets rents"' pledge !pledgee gets fruits# etc but with the obligation to compensate

what he receies with those which are owing him"C' antichresis !creditor ac%uires the fruits of his debtor’s immoable# but

with the obligation to apply them first to the interest and then to theprincipal amount of the credit"

Art 44) Nat,ral "r,its are the s#ontaneo,s #ro$,cts o" the soil+ an$ theyo,ng an$ other #ro$,cts o" animals&

In$,strial "r,its are those #ro$,ce$ y lan$s o" any -in$thro,gh c,lti'ation or laor&

:i'il "r,its are the rents o" ,il$ings+ the #rice o" leases o"lan$s an$ other #ro#erty an$ the amo,nt o" #er#et,al or li"e ann,itiesor other similar income&

<atural fruits

/wo 9inds8&' pontaneous products of the soil !not through human cultiation or

labor"# and*' oung and other products of animals !chic9s# eggs# wool# mil9"

• /he second 9ind is considered as natural fruits whateer care or

management# scientific or otherwise# may hae been gien by mansince the law ma9es no distinction'

• 3uppies# while cute# bred by a professional breeder are still

natural fruits

4ndustrial fruits

• /hose products which are borne through the cultiation or labor of

humans

•

(sually cultiated for a purpose

)iil fruits&' $ents of buildings*' 3rices of leases !rents" of lands and other property !including moables"-' Amount of perpetual or life annuities or other similar income

Art 44. ;e who recei'es the "r,its has the oligation to #ay thee/#enses ma$e y a thir$ #erson in their #ro$,ction+ gathering+ an$#reser'ation&

Art - applies when8&' >wner of property recoers the property from a possessor and the

possessor has not yet receied the fruits although they may haealready been gathered or harested5 or

*' /he possessor has already receied the fruits but is ordered toreturn the same to the owner

4n both cases# the owner is obliged to reimburse the preious possessor forthe expenses incurred by the latter'

What if the possessor is in bad faith?

• /he owner cannot excuse himself f rom his obligation by alleging bad

faith on the part of the possessor because the law ma9es no distinction

When does good faithLbad faith come into play?

• When the goods hae yet to be gathered'

• (nder K# a 63 in bad faith has no right of reimbursement forexpenses# nor to the fruits' >nly for the necessary expenses ofpreseration of land'

What if the expenses exceed the fruits?

• /he owner must pay the expenses just the same because the law

ma9es no distinction

• 6ut 9eep in mind that the owner only pays for the expenses for

production# gathering and preseration 2 not improement'


15




PROPERTY NOTES

Art 444 Only s,ch as are mani"est or orn are consi$ere$ as nat,ral orin$,strial "r,its&

<ith res#ect to animals+ it is s,""icient that they are in the

wom o" the mother+ altho,gh ,norn&

When natural fruits and industrial fruits deemed to exist&' 3lants which produce only one crop and then perish !rice# corn# sugar"8

from the time the seedlings appear from the ground*' 3lants and trees which lie for years and gie periodic fruits !mangoes#

oranges# epols"8 deemed existing until they actually appear on theplants or trees

-' Animals8 beginning of the maximum ordinary period of gestation !whenthere can be no doubt that they are already in the womb of the mum"

' Bowls8 the fact of appearance of chic9s should retroact to the beginningof incubation

SE:TION II RI>;T O3 A::ESSION <IT; RESPE:T TOIMMOVA=LE PROPERTY

ection * deals with one 9ind of accession continua# that of immoables' 4tcomprehends accession industrial !C7CH" and accession natural !CI7HC"')ertain basic principles must be 9ept in mind8&' Accession follows the principal

• >wner of the principal ac%uires the ownership of the accession

*' 4ncorporation or union must be intimate

• $emoal or separation cannot be effected without substantial injury

to either or both

-' .ffect of good faith and bad faith• Good faith exonerates a person from punitie liability but bad faith

may gie rise to dire conse%uences

• General rule8 person who acts in bad faith has no rights

• .xception8 person who is in good faith or bad faith is entitled to

reimbursement for necessary expenses or preseration !C*" aswell as expenses for cultiation# gathering and preseration !-"

' .ffect of both parties in bad faith

• 6ad faith of one neutralies bad faith of the other

• <either party may demand as a matter of right the remoal of the

improements against the will of the other for such right is aailableonly to a party in good faith where the other is in bad faith

C' (njust enrichment

General rule on accession industrial Art C and H gie the general rule that the accessory follows theprincipal'.xception8 Art &*; of the Bamily )ode

Definitions8&' 6uilding 2 generic term for all architectural wor9 with roof built for the

purpose of being used as man’s dwelling# or for offices# clubs# theaters#etc'

*' $epairs 2 putting of something bac9 into the condition in which it wasoriginally in !not an improement"

Art 44* <hate'er is ,ilt+ #lante$ or sown on the lan$ o" another an$

the im#ro'ements or re#airs ma$e thereon+ elong to the owner o" thelan$+ s,!ect to the #ro'isions o" the "ollowing articles&

• >wner of land must be 9nown for this article to apply

Art 440 All wor-s+ sowing+ an$ #lanting are #res,me$ ma$e y theowner an$ at his e/#ense+ ,nless the contrary is #ro'e$&

Disputable presumptions as to improements8&' /he wor9s# sowing# and planting were made by the owner' and*' /hey were made at the owner’s expense'

Ee who alleges the contrary of these presumptions has the burden of proof'

Art 442 The owner o" the lan$ who ma-es thereon+ #ersonally orthro,gh another+ #aintings+ constr,ctions or wor-s with the materialso" another+ shall #ay their 'al,e( an$ i" he acte$ in a$ "aith+ he shallalso e olige$ to the re#aration o" $amages& The owner o" thematerials shall ha'e the right to remo'e them only incase he can $o sowitho,t in!,ry to the wor- constr,cte$+ or witho,t the #lantings+constr,ctions or wor-s eing $estroye$& ;owe'er+ i" the lan$owneracte$ in a$ "aith+ the owner o" the materials may remo'e them in anye'ent+ with a right to e in$emni"ie$ "or $amages&


16




PROPERTY NOTES

Applies when the owner of the property uses the materials of another'

:andowner76uilderL3lanterLower >wner of Materials

Good faith Good faith:>763 can ac%uire the materialsproided there is full payment

.ntitled to full payment for alue ofmaterials# or May remoe materials proidedthere is no substantial injury to wor9done

6ad faith Good faith Ac%uire the materials proided hepays full payment plus damages

.ntitled to full payment for alue ofmaterials plus damages# or $emoe materials een if there willbe substantial injury to wor9 doneplus damages

Good faith 6ad faith

Ac%uire materials without paying forthe alue thereof and entitled todamages due to defects or inferior%uality of materials

:oses materials without indemnityand will be liable for damages due todefects or inferior %uality of materials

6ad faith 6ad faith

ame as when both are in goodfaith'

Art 445 The owner o" the lan$ on which anything has een ,ilt+ sownor #lante$ in goo$ "aith+ shall ha'e the right to a##ro#riate as his ownthe wor-s+ sowing or #lanting+ a"ter #ayment o" the in$emnity #ro'i$e$"or in articles *40 an$ *45+ or to olige the one who ,ilt or #lante$ to#ay the #rice o" the lan$+ an$ the one who sowe$+ the #ro#er rent&;owe'er+ the ,il$er or #lanter cannot e olige$ to ,y the lan$ i" its'al,e is consi$eraly more than that that o" the ,il$ing or trees& Ins,ch case+ he shall #ay reasonale rent+ i" the owner o" the lan$ $oesnot choose to a##ro#riate the ,il$ing or trees a"ter #ro#er in$emnity&The #arties shall agree ,#on the terms o" the lease an$ in case o"$isagreement+ the co,rt shall "i/ the terms thereo"&

Art 447 ;e who ,il$s+ #lants or sows in a$ "aith on the lan$ o"another+ loses what is ,ilt+ #lante$ or sown witho,t right to in$emnity&

Art 4*9 The owner o" the lan$ on which anything has een ,ilt+#lante$ or sown in a$ "aith may $eman$ the $emolition o" the wor-+ or that the #lanting or sowing e remo'e$+ in or$er to re#lace things in

their "ormer con$ition at the e/#ense o" the #erson who ,ilt+ #lante$or sowe$( or he may com#el the ,il$er or #lanter to #ay the #rice o"the lan$+ an$ the sower the #ro#er rent&

Art 4*1 In case o" the two #rece$ing articles+ the lan$owner is entitle$to $amages "rom the ,il$er+ #lanter or sower&

Art 4*) The ,il$er+ #lanter or sower in a$ "aith is entitle$ toreim,rsement "or the necessary e/#enses o" #reser'ation o" the lan$&

Art 4*. I" there was a$ "aith+ not only on the #art o" the #erson who,ilt+ #lante$ or sowe$ on the lan$ o" another+ ,t also on the #art o"the owner o" s,ch lan$+ the rights o" one an$ the other shall e thesame as tho,gh oth ha$ acte$ in a$ "aith&

It is ,n$erstoo$ that there is a$ "aith on the #art o" thelan$owner whene'er the act was $one with his -nowle$ge an$ witho,to##osition on his #art&

Art 4*4 <hen the lan$owner acte$ in a$ "aith an$ the ,il$er+ #lanteror sower #rocee$e$ in goo$ "aith+ the #ro'isions o" article 442 shalla##ly&

What’s good faith?)onsists in the8&' Eonest belief that the land he is building# planting# sowing on is his or

that by some title# he has a right to build# plant# sow on it5 and*' 4gnorance of any defect or flaw in his title

Abrenica definition8 tate of mind at the time he built the improements!3leasantille case"

(sually# it applies to building# planting# sowing in the concept of ownership'6ut the upreme )ourt has expanded its coerage to&' )ases wherein a builder had constructed improements with the

consent of the owner *' 6uilders in good faith who relied on the consent of another whom they

hae mista9enly belieed to be the owner of the land


17




PROPERTY NOTES

-' /o children who built improement on a land belonging to their parentswith their parents consent !Macasaet case"

:andowner 6uilderLplanterLsower Good faith Good faith

>ption &8 3urchase whateer hasbeen built# planted# or sown afterpaying indemnity which includesnecessary# useful and luxuriousexpenses !if he wishes toappropriate the luxurious expenses"

3rohibited from offsetting orcompensating the necessary anduseful expense with the fruitsreceied by the 63 in good faith!<uguid case"

$eceie indemnity for necessary#useful and luxurious expenses!depends on landowner" with right of retention oer the land withoutobligation to pay rent until fullpayment of indemnity

$emoe useful improementproided it does not cause any injury!part of right of retention"

4f :> does not appropriate luxurious

improements# 63 can remoe thesame proided there is no injury tothe principal thing !land or building"

$ight of retention only applies when:> chooses to appropriate !but doesnot apply if property of publicdominion"

>ption *8 /o oblige the 63 to buy theland or the to pay the proper rentunless the alue of the land isconsiderably more than that of thebuilding or trees

/o purchase land at fair mar9et alueat time of payment when alue is notconsiderably more than that of thebuilding or trees

/o pay rent until the purchase hasbeen made !/echnogas case"

4f 63 cannot pay purchase price ofthe land# :> can re%uire 63 toremoe whateer has been built#planted# or sown'

4f the alue of the land isconsiderably more than that of the

building or trees# 63 cannot becompelled to buy the land' 4n suchcase# 63 will pay reasonable rent if :> does not choose option &'

4f 63 cannot pay the rent# :> caneject 63 from the land'

Good faith 6ad Baith

>ption &8 /o ac%uire whateer hasbeen built# planted or sown withoutpaying indemnity except necessaryexpenses for preseration of landand luxurious expenses !should :>want to ac%uire luxuriousimproement" plus damages

:oses whateer has been built#planted or sown without indemnityand liable to pay damages

.ntitled to reimbursement fornecessary expenses for preserationof land but no right to retention

.ntitled to reimbursement for usefulexpenses but cannot remoe useful

improements een if remoal willnot cause injury

<ot entitled to luxurious expensesexcept when :> wants to ac%uire!alue of which will be the one at thetime :> enters into possession"

.ntitled to remoe luxuriousimproements if it will not causeinjury and :> does not want toac%uire them

>ption *8 /o oblige 63 to buy land or

to pay proper rent plus damages

>bliged to pay for land or proper rent

and pay damages>ption -8 /o compel 63 to remoeor demolish wor9 done plusdamages

>bliged to remoe or demolish wor9done at his expense and paydamages

6ad Baith Good Baith

Ac%uire whateer has been built#planted or sown by paying indemnityplus damages

4f :> ac%uires whateer has beenbuilt# planted or sown# 63 must beindemnified the alue thereof plusdamages


18




PROPERTY NOTES

4f :> does not ac%uire# 63 cannotinsist on purchasing land

63 can remoe whateer has been

built# planted or sown regardless ofwhether or not it will cause injury andwill be entitled to damages

6ad Baith 6ad Baith

6oth in good faith

<ecessary expenses

• Made for the preseration of the thing# or

• /hose which see9 to preent the waste# deterioration# or loss of the

thing

(seful expenses• .xpenses which add alue to a thing or

• Augment is income

When does good faith cease?

• Brom the moment defects in the title are made 9nown to the possessor

by extraneous eidence or by suit for recoery of the property by thetrue owner

What happens if good faith ceases? !$osales case"

• :> can ac%uire improements built 3$4>$ to the notice to 63 !when

good faith ceased"# and indemnify 63 of current mar9et alue at t ime

of payment• :> entitled to rent from the time 63 good faith ceased

When will these rules not apply?&' When other proisions of law goern !agency# co7ownership# lease#

usufruct"*' 4mproement constructed on one’s own land subse%uently sold !person

constructs a house on his own land and later sold land to another" 6ut# the proision on indemnity in may be applied by analogy

where the owner7builder later lost ownership of the land by irtue of

a court judgment# considering that the primary intent of is toaoid a state of forced co7ownership especially where the parties inthe main agree that and CH are applicable and indemnity forthe improements may be paid although they differ as to basis ofthe indemnity 7 whut?= !3ecson )A"

-' 6uilder is a belligerent occupant' )onstructions not in the nature of buildingsC' 3roperty of public domain

Art 4** I" the materials+ #lants or see$s elong to a thir$ #erson whohas not acte$ in a$ "aith+ the owner o" the lan$ shall answers,si$iarily "or their 'al,e an$ only in the e'ent that the one who ma$e,se o" them has no #ro#erty with which to #ay&

This #ro'ision shall not a##ly i" the owner ma-es ,se o" theright grante$ y Article 4*9& I" the owner o" the materials+ #lants orsee$s has een #ai$ y the ,il$er+ #lanter or sower+ the latter may$eman$ "rom the lan$owner the 'al,e o" the materials an$ laor&

:andowner 6uilderL3lanterLower >wner of the MaterialsGood Baith Good Baith Good Baith

>ption &8 /o ac%uirewhateer has beenbuilt# planted or sownproided there ispayment of indemnity!which includes alueof what has been built#planter or sown plusalue of materialsused"

/o receie indemnityfrom :> with right ofretention oer land untilfull payment

/o receie indemnityfrom 63 who isprimarily liable formaterials5 if 63 isinsolent# to proceedagainst :> who issubsidiarily liable withno right of retention

>ption *8 /o oblige 63

to buy land or to payrent unless alue ofland is considerablymore than that ofbuilding or trees

/o buy land or to pay

proper rent

/o receie indemnity

from 63 only !:> isnot subsidiarily liable"with right of retentionuntil full payment5 or

/o remoe materials ifthere will be no injuryon building or trees andwill hae material lienagainst 63 for


19




PROPERTY NOTES

payment of materialsGood Baith Good Baith 6ad Baith

ame Whateer is the choiceof :># the >M8

&' loses the materials infaor of the 63 and*' will hae no right toreceie indemnity from63 nor :>

Good Baith 6ad Baith 6ad Baith

>ption &8 /o ac%uirewhateer has beenbuilt# planted or sownwithout payingindemnity except fornecessary expensesfor preseration of landand luxurious expenses

!should :> want toac%uire luxuriousimproements" plusdamages

63 loses what hasbeen built# planted orsown plus liable fordamages but is entitledto be indemnified fornecessary expensesand luxurious expenses!should :> want to

ac%uire luxuriousimproements" and hasno right of remoaleen if remoal will notcause damage

!ince both 63 and>M are in bad faith#treat them both as ifthey are in good faith'"

Whateer is the choiceof the :># >M has rightto receie indemnity for

alue of materials from63 only !:> has nosubsidiary liability foralue of materialsbecause >M isconsidered in goodfaith only insofar as63 is concerned"

>M has no right toremoe materials eenif there will be no injuryor damage

>ption *8 /o oblige 63to buy the land or topay proper rent plusdamages

/o buy the land or payproper rent and liableto pay damages to :>

>M has right ofremoal proided therewill be no injury ordamage

>ption -8 /o oblige 63to demolish or remoewhat has been built#planted or sown plusdamages

/o demolish or remoewhat has been built#planted or sown andliable for damages

:iable to pay damagesdue to defects orinferior %uality ofmaterials

6ad Baith Good Baith Good Baith

/o ac%uire what hasbeen built# planted orsown by payingindemnity plus liable to

pay damages

/o receie indemnityfrom :> plus damages

/> receie indemnity of materials principallyfrom 63 and in case63 is insolent#

subsidiarily from :>6ad Baith Good Baith 6ad Baith

ame ame <o right to receieindemnity for alue ofmaterials from 63 nor :> !who ends upowning buildings ortrees"

Art 4*0 In the cases reg,late$ in the #rece$ing articles+ goo$ "aith $oesnot necessarily e/cl,$e negligence+ which gi'es right to $amages,n$er article )120&

Art 4*2 To the owners o" the lan$s a$!oining the an-s o" ri'ers elong

the accretion which they gra$,ally recei'e "rom the e""ects o" thec,rrent o" the waters&

Article treats of alluion# a form of accession natural'

Alluion isJ

• Accretion which the ban9s of riers gradually receie from the effects of

the current of the waters and

• Which belong to the owners of lands adjoining the said ban9s

• $iparian owners are owners of lands adjoining the ban9s of riers'

• :ittoral owners are the owners of lands bordering the shore of the sea or

la9e or other tidal waters

Distinguished from accretion

• Alluion is applied to the deposit of soil or to the soil itself

• Accretion is the act or process by which a riparian land gradually and

imperceptiely receies addition made by the water to which the land iscontiguous

$e%uisites


20




PROPERTY NOTES

i' Deposit or accumulation of soil or sediment must be gradual andimperceptie

ii' Accretion results from the effects or action of the current of waters ofthe rier !exclusie wor9 of nature"

iii' :and where accretion ta9es place must be adjacent to the ban9 of arier

4nstances when alluion D>. <>/ ta9e place1. Accretion because of sudden and forceful action li9e that of flooding2. Accretion caused by human interention !would still be part of public

domain 2 Fda de <aerno )A"3. Accretion caused by action of Manila 6ay !since Manila 6ay is not a

rier# it’s part of the sea"4. Accretion on the ban9 of a la9e !li9e :aguna de 6ay" hae been held to

belong to the owners of the lands to which they are added

.lements of rier and their ownership A rier is a compound concept consisting of three elements8

&' $unning waters*' /he bed-' /he ban9s

• ince a rier is a compound concept# it should hae only one nature 2 it

should either be totally public or completely priate' And since riers#whether naigable or not# are of public dominion !Art *;"# it is implicitthat all the three component elements be the same nature also'

$easons for alluion&' )ompensate the riparian owner for the danger of loss that he

suffers because of the location of his land*' )ompensate him for the encumbrances and arious 9inds of

easements to which his property is subject-' 3romote the interests of agriculture for the riparian owner it in thebest position to utilie the accretion

Accretions affecting lands registered under the /orrens systemn case o% diminution o% area

• $egistration does not protect the riparian owner against diminution of

the area of his land through gradual changes in the course of theadjoining stream

• Accretions which the ban9s of riers may gradually receie from the

effect of the current become the property of the owners of the ban9sn case o% increase o% area

• Although alluion is automatically owned by the riparian owner# it does

not automatically become registered land# just because the lot whichreceies such accretion is coered by a /orrens title

• o# alluial deposit ac%uired by a riparian owner of registered land by

accretion may be subjected to ac%uisition through prescription by a thirdperson# by failure of such owner to register such accretion within theprescribed period

Art 4*5 The owners o" estates a$!oining #on$s or lagoons $o notac6,ire the lan$ le"t $ry y the nat,ral $ecrease o" the waters+ or lostthat in,n$ate$ y them in e/traor$inary "loo$s&

• $efers only to ponds and lagoons

o <o application when the estate adjoins a cree9# stream# rier or

la9eo

Bor purposes of alluion# la9es are of the same category ofcree9s# streams and riers

• 3ond

o a body of stagnant water without an outlet

o larger than a puddle and smaller than a la9e

• :agoon

o small la9e# ordinarily of f resh water#

o and not ery deep# fed by floods

o the hollow bed of which is bounded by eleations of land

• :a9e

o 6ody of water formed in depressions of the earth

o >rdinarily fresh water

o )oming from riers# broo9s or springs

o )onnected with the sea by them

o Eence# :aguna de 6ay is a la9e

Art 4*7 <hene'er the c,rrent o" a ri'er+ cree- or torrent segregates"rom an estate on its an- a -nown #ortion o" lan$ an$ trans"ers it toanother estate+ the owner o" the lan$ to which the segregate$ #ortionelonge$ retains the ownershi# o" it+ #ro'i$e$ that he remo'es thesame within two years&


21




PROPERTY NOTES

Aulsion isJ

• Also 9nown as %orce o% river

• Defined as the accretion which ta9es place when the current of a rier#

cree9 or torrent segregates from an estate on its ban9 a 9nown portionand transfers it to another estate

• 4n which case# the owner of the estate to which the segregated portion

belonged# retains the ownership thereof

• Also refers to the segregation or transfer itself of a 9nown portion of land

to another by the force of the current

Alluion Aulsion

• Deposit of soil is gradual

• Deposit of soil belongs to the

owner of the property where thesame was deposited

• /he soil cannot be identified

• Deposit is sudden or abrupt

• /he owner of the property from

which a part was detachedretains the ownership thereof

• Detached portion can be

identified

• Where there had been accretions to the land adjacent to the ban9 of a

rier# the riparian owner does not lose the ownership of such accretionseen if they are separated by aulsion from the land by the suddenchange of the course of the rier

$e%uisitesi' egregation and transfer must be caused by the current of a rier#

cree9 or torrentii' egregation and transfer must be sudden or abruptiii' 3ortion of land transported must be 9nown or identifiable

• .en if the detached portion be placed on top of another land instead ofbeing adjoined to it# Art CK still applies as long as it can be identified ascoming form the estate from which it was detached

• 4f only soil is remoed by water and spread oer another’s land such

that no 9nown portion can be said to exist which can be remoed# thereis no aulsion

• )urrent

o )ontinuous moement of a body of water# often horiontal# in a

certain direction

• $ier

o <atural surface stream of water of considerable olume

o 3ermanent or seasonal flow

o .mptying into an ocean# la9e or other body of water

• )ree9o mall islet extending further into land

o <atural stream of water normally smaller than and ofter

tributary to a rier

• /orrent

o Fiolent stream of water

o A flooded rier or one suddenly raised by a heay rain and

descending a steep inclineo $aging flood or rushing stream of water

What if a portion of land is transferred# but not by a current of water# but by alandslide?

• ou can apply Art CK# by analogy'

$emoe it within two years

• /he former owner preserers his ownership of the segregated portion

proided he remoes !not merely claims" the same within the period of *years

• 4t would seem that his failure to do so would hae the effect of

automatically transferring ownership oer it to the owner of the otherestate

• :aw doesn’t ma9e a distinction between priate land and land of the

public domain

• Why two years?

o egregated portion is usually ery small and it is thus useless

to the original owner o imilar to uprooted trees !but there# H months"

o 4f the owner of the separated portion retains his ownership

without any %ualification# he would hae a right to enter theother estate at any time# which wouldn’t be conenient to theother estate

o After a long period# the detached potion may become

permanently attached to the new land so it’ll be hard to remoe


22




PROPERTY NOTES

Art 409 Trees ,#roote$ an$ carrie$ away y the c,rrent o" the waterselong to the owner o" the lan$ ,#on which they may e cast+ i" theowners $o not claim them within 0 months& I" s,ch owners claim them+they shall #ay the e/#enses inc,rre$ in gathering them or #,tting themin a sa"e #lace&

• Applies only to uprooted trees

• 4f a 9nown portion of land with trees standing thereon is carried away by

the current to another land# Art CK goerns

• /he original owner claiming the trees is liable to pay the expenses

incurred by the owner of the land upon which they hae been cast ingathering them or putting them in a safe place

• )laim must be done in H months

o 4f not# the trees will belong to the owner of the land where the

trees hae been cast too ix months is a condition precedent and not a prescription

period

o After a claim is made within H months an action may bebrought within the period proided by law for prescription ofmoables

<68 Bor trees# you need only ):A4M within the period' Bor land !Art CK"#you hae to $.M>F. them within * years

Art 401 Ri'er e$s which are aan$one$ thro,gh the nat,ral change inthe co,rse o" the waters i#so "acto elong to the owners whose lan$sare occ,#ie$ y the new co,rse in #ro#ortion to the area lost& ;owe'er+the owners o" the lan$s a$!oining the ol$ e$ shall ha'e the right toac6,ire the same y #aying the 'al,e thereo"+ which 'al,e shall note/cee$ the 'al,e o" the area occ,#ie$ y the new e$&

$ier beds abandoned through natural change in the course of waters

• /hey belong to owners occupied by the new course of the rier

o 4n proportion to the area lost !if only one owner lost a portion of

his land# the entire old bed should belong to him' 4f more thantwo# then in proportion to the area lost"

• $bandoned9 /he words may be construed to mean that where there is

abandonment by the goernment oer the old bed# the owner of theinaded land automatically ac%uires ownership of the same without any

formal act on his part' !$emember that riers are property of publicdominion"

o /he change in the course of the rier does not ipso %acto result

in the abandonment of the rier but must be the reason for itsabandonment# in other words# the rier is abandoned becauseof or through the natural change of the water

• /he owners of land adjoining the old bed are gien the preferential right

to ac%uire the old bed by paying the alue thereof o /he indemnification shall not exceed the alue of the area

occupied by the new bed !in case of disagreement# bring thecase to court'"

$e%uisitesi' /here must be a natural change in the course of the waters of the

rier ii' )hange must be abrupt or sudden

<68 :aw spea9s of change of rier course' 4f a rier simply dries up or

disappears# the bed left dry will belong to public dominion !Art C;*"

Art 40) <hene'er a ri'er+ changing its co,rse y nat,ral ca,ses+ o#ensa new e$ thro,gh a #ri'ate estate+ this e$ shall ecome o" #,lic$ominion&

<68 /his article tal9s of the new rierbed' Art H& tal9ed about the oldrierbed'

• /he bed of a public rier or stream is of public ownership !Art C;*"

• 4f the rier changes its course and opens a new bed# this bed becomes

of public dominion een if its on priate property

• @ust as the old had bed had been of public dominion before theabandonment# the new rierbed shall li9ewise be of public dominion

• <o distinction whether a rier is naigable or floatable or not

Art 40. <hene'er a c,rrent o" a ri'er $i'i$es itsel" into ranches+lea'ing a #iece o" lan$ or #art thereo" isolate$+ the owner o" the lan$retains his ownershi#& ;e also retains it i" a #ortion o" lan$ is se#arate$"rom the estate y the c,rrent&


23




PROPERTY NOTES

<68 /his article does not refer to the formation of islands through accretion!that’s in Art H and HC"'

/his article refers to the formation of an island caused by a rier diidingitself into branches resulting in8

&' /he isolation of a piece of land or part thereof# or *' /he separation of a portion of land from an estate by the current !see

Art CK"

• /he owner preseres his ownership of the isolated or separated

property

Art 404 Islan$s which may e "orme$ on the seas within the !,ris$ictiono" the Phili##ines+ on la-es+ an$ on na'igale or "loatale ri'ers elongto the State&

Art 40* Islan$s which thro,gh s,ccessi'e acc,m,lation o" all,'ial$e#osits are "orme$ in nonna'igale an$ non"loatale ri'ers+ elong

to the owners o" the margins or an-s nearest to each o" them+ or tothe owners o" oth margins i" the islan$ is in the mi$$le o" the ri'er+ inwhich case it shall e $i'i$e$ longit,$inally in hal'es& I" a single islan$th,s "orme$ e more $istant "rom one margin than "rom the other+ theowner o" the nearer margin shall e the sole owner thereo"&

$ules of ownership of islands form through alluion

&' An island belongs to the tate as part of its patrimonial property if it isformed8

a/ >n the seas within the jurisdiction of the 3hilippinesb/ >n la9esc/ >n naigable or floatable riers

*' 4f it is formed in non7naigable and non7floatable riers8a/ 4t belongs to the nearest riparian owner or owner of the margin

or ban9 nearest to it as he is considered in the best position tocultiate and deelop the island ! in other words, sa pina'amalapit na may ari ng lupa)

b/ 4f it is in the middle of the rier# the island is diidedlongtitudinally in hales

c/ 4f the island formed is longer than the property of the riparianowner# the latter is deemed ipso jure to be the owner of that

portion which corresponds to the length of that portion of hisproperty along the margin of the r ier

d/ 4f a new island is formed between an existing island and anopposite ban9# the owner of the older island is considered ariparian owner together with the owner of the land adjoining theban9 for the purpose of determining ownership of the island

o Ee must of course register the land# else it be subject to

aderse possession of another

• <aigable rier

o >ne which forms in its ordinary condition by itself or by uniting

with other waters a continuous highway oer which commerceis or may be carried on

o /est8 whether it is naigable in fact# if it is used or susceptible

of being used as a highway of commerce# for trade and traelin the usual and ordinary modes

o A naigable rier is one that is 0floatable1# that is# a rier

admitting floatsi' Eence# a floatable stream is a naigable stream

!Macatangay ecretary of 3ublic Wor9s 2 in thiscase# natangay si Macatangay/ :ehehe; "

SE:TION T;REE RI>;T O3 A::ESSION <IT;RESPE:T TO MOVA=LE PROPERTY

Art 400 <hene'er two mo'ale things elonging to $i""erent ownersare+ witho,t a$ "aith+ ,nite$ in s,ch a way that they "orm a singleo!ect+ the owner o" the #rinci#al thing ac6,ires the accessory+in$emni"ying the "ormer owner thereo" "or its 'al,e&

Adjunction isJ

• /he union of two moable things belonging to different owners

• 4n such a way that they form a single object

• 6ut one of the component things preseres its alue

)haracteristics of adjunction4n order that adjunction may ta9e place# it is necessary that8&' /here are two moables belonging to different owners*' /hey are united in such a way that they form a single object5 and


24




PROPERTY NOTES

-' /hey are so inseparable that their separation would impair their natureor result in substantial injury to either

• 4n determining the right of the parties in adjunction# regard is had only to

the things joined and not to the persons'• 6ut where there is a mere change of form or alue which does not

destroy the identity of the component parts# the original owners maydemand their separation !Art HK"

Ninds of adjunction&' inclusion or engraftment !such as when a diamond is set on a gold ring"*' soldering or soldadura !when led is united or fused to an object made of

lead"a' ferrumincaion !if both the accessory and principal are of the

same metal"b' plumbatura !if they are of different metals"

-' writing or escritua !when a person writes on paper belonging to another"' painting or pintura !when a person pains on canas of another"

C' weaing or tejido !when threads belonging to different owners are usedin ma9ing textile"

Art 402 The #rinci#al thing+ as etween two things incor#orate$+ is$eeme$ to e that to which the other has een ,nite$ as an ornament+or "or its ,se or #er"ection&

Art 405 I" it cannot e $etermine$ y the r,le gi'en in the #rece$ingarticle which o" the two things incor#orate$ is the #rinci#al one+ thething o" the greater 'al,e shall e so consi$ere$+ an$ as etween twothings o" e6,al 'al,e+ that o" greater 'ol,me&

In #ainting an$ sc,l#t,re+ writings+ #rinte$ matter+ engra'ingan$ lithogra#hs+ the oar$+ metal+ stone+ can'as+ #a#er or #archmentshall e $eeme$ the accessory thing&

/ests to determine the principal in adjunction4n the order of application# the principal is that8

&' /o which the other !accessory" has been united as an ornament orfor its use or perfection' !rule of importance and purpose"

*' >f greater alue# if they are of une%ual alues5-' >f greater olume# if they are of an e%ual alue5' /hat of greater merits ta9ing into consideration all the pertinent

legal proisions !see Art IC" applicable as well as the comparatiemerits# utility and olume of their respectie things

• /he special rule regarding paintings# etc is based on the

consideration that what is painted is of greater alue that the boardor canas inasmuch as the exceptions mentioned are specified# its

proision can not be applied by analogy to cases of adjunction ofsimilar nature which are deemed excluded' !ee Art HI and H"

Art 407 <hene'er the things ,nite$ can e se#arate$ witho,t in!,ry+their res#ecti'e owners may $eman$ their se#aration&

Ne'ertheless+ in case the thing ,nite$ "or the ,se+emellishment or #er"ect o" the other+ is m,ch more #recio,s than the#rinci#al thing+ the owner o" the "ormer may $eman$ its se#aration+e'en tho,gh the thing to which is has een incor#orate$ may s,""ersome in!,ry&

When separation of things united are allowed&' Wheneer the separation can be done without injury*' When the accessory much more precious# the owner of the accessory

may demand its separation een though the principal thing may suffersome injury

• >wner who made or caused the union or incorporation shall bear

the expenses for separation-' When principal acted in bad faith# owner of accessory may separate

een if the principal thing be destroyed

Art 429 <hene'er the owner o" the accessory thing has ma$e theincor#oration in a$ "aith+ he shall lose the thing incor#orate$ an$shall ha'e the oligation to in$emni"y the owner o" the #rinci#al thing"or the $amages he may ha'e s,""ere$&

I" the one who has acte$ in a$ "aith is the owner o" the#rinci#al thing+ the owner o" the accessory thing shall ha'e a right to

choose etween the "ormer #aying him its 'al,e or that the thingelonging to him e se#arate$+ e'en tho,gh "or this #,r#ose it enecessary to $estroy the #rinci#al thing( an$ in oth cases+",rthermore+ there shall e in$emnity "or $amages&

I" either one o" the owners has ma$e the incor#oration with the-nowle$ge an$ witho,t the o!ection o" the other+ their res#ecti'erights shall e $etermine$ as tho,gh oth acte$ in goo$ "aith&

A8DCN:TION !accessory follows principal"

$ights of >wner of 3rincipal $ights of >wner of Accessory


25




PROPERTY NOTES

Good Baith Good Baith Ac%uires the accessory#indemnifying the owner of the aluethereof

.xcept8 When alue of accessory ismuch more precious than theprincipal thing !HK"

.xcept8 When still separable# maydemand separation !no adjunctionanyway"

:oses the accessory but has a rightto indemnity for the alue of theaccessory

Eas a right to demand separationeen if it causes injury to theprincipal thing !HK"

May demand separation !HK!

Good faith 6ad faith Ac%uires the accessory and has aright to indemnity for damages hemay hae suffered

:oses the thing and has liability fordamages

6ad faith Good faith

3ays for the accessory plus

damages

eparate thing een if it is destroyedplus pay damages

>ption &8 Demand the owner of the

principal to pay for the alue of theaccessory plus damages

>ption *8 Demand separation een if it causes the destruction of theprincipal thing plus damages

6ad Baith 6ad Baith

As if both are in good faith

Art 421 <hene'er the owner o" the material em#loye$ witho,t hisconsent has a right to in$emnity+ he may $eman$ that this consist inthe $eli'ery o" a thing e6,al in -in$ an$ 'al,e+ an$ in all other res#ects+to that em#loye$+ or else in the #rice thereo"+ accor$ing to e/#ert

a##raisal&Art 42) i" y the will o" their owners two things o" the same or $i""erent-in$s are mi/e$+ or i" the mi/t,re occ,rs y chance+ an$ in the lattercase the things are not se#arale witho,t in!,ry+ each owner shallac6,ire a right #ro#ortional to the #art elonging to him+ earing inmin$ the 'al,e o" things mi/e$ or con",se$&Art 42. i" y the will o" only one owner+ ,t in goo$ "aith+ two things o"the same or $i""erent -in$s are mi/e$ or con",se$+ the rights o" theowners shall e $etermine$ y the #ro'isions o" the #rece$ing article&

I" y the one who ca,se$ the mi/t,re or con",sion acte$ in a$"aith+ he shall lose the thing elonging to him th,s mi/e$ or con",se$+esi$es eing olige$ to #ay in$emnity "or the $amages ca,se$ to theowner o" the thing with which his own was mi/e$

Definition of mixture

• /a9es place when two or more things belonging to different owners are

mixed or combined

• With the respectie identities of the component parts destroyed or lost

• /wo 9inds

o )ommixtion !for solids"

o )onfusion !for li%uids"

$ules goerning mixture !co7ownership"&' 4f the mixture by will of owners# their rights shall be goerned by their

stipulations' 4n the absence of any stipulation# each owner ac%uires aright or interest in the mixture in proportion to the alue of his materialsas in co7ownership'

MITCRE>wner who caused mixture >wner of the thing mixed into

Good faith or by chance Good faith or by chance

.ach owner ac%uires a rightproportional to the part belonging tohim# bearing in mind the alue of the

things mixed or confused

.ach owner ac%uires a rightproportional to the part belonging tohim# bearing in mind the alue of the

things mixed or confused

6ad faith Good faith:oses the thing mixed or confusedplus liable to pay damages

Ac%uires the thing mixed plusentitled to damages

Art 424 One who in goo$ "aith em#loys the material o" another in wholeor in #art in or$er to ma-e thing o" a $i""erent -in$+ shall a##ro#riatethe thing th,s trans"orme$ as his own+ in$emni"ying the owner o" thematerial "or its 'al,e&

I" the material is more #recio,s than the trans"orme$ thing oris o" more 'al,e+ its owner+ may+ at his o#tion+ a##ro#riate the newthing to himsel"+ a"ter "irst #aying in$emnity "or the 'al,e o" the thing+or $eman$ in$emnity "or the material&


26




PROPERTY NOTES

I" in the ma-ing o" the thing a$ "aith inter'ene$+ the owner o"the material shall ha'e the right to a##ro#riate the wor- to himsel"witho,t #aying anything to the ma-er+ or to $eman$ o" the latter that hein$emni"y him "or the 'al,e o" the material an$ the $amages he mayha'e s,""ere$& ;owe'er+ the owner o" the material cannot a##ro#riatethe wor- in case the 'al,e o" the latter+ "or artistic or scienti"ic reasons+is consi$eraly more than that o" the material&

Definition of specification

• /a9es place wheneer the wor9 of a person is done on the material of

another

• uch material# in a conse%uence of the wor9 itself# undergoing a

transformation'

• 4mparting of a new form to the material belong to another# or ma9ing of

the material of another into a different 9indo Blour made into bread# grapes into wine# clay into bric9s# loe

into hate !jo9e' (ute', ang boring ng (roperty/ % you’ve made it this %ar, good %or you; "

SPE:I3I:ATION !accessory follows principal"

>wner of material 6uilder

Good faith Good faith

$ight to indemnification for the alueof the material'

+2cept 8 Material more precious thantransformed thing'

>ption &8 Appropriate the new thing

to himself# indemnifying the builderfor his wor9'

>ption *8 Demand indemnity for thematerial'

hall appropriate the thing thustransformed as his own#indemnifying the owner of thematerial for its alue'

/o be indemnified'

Appropriate the same after indemnityfor material'

Good faith 6ad faith>ption &8 Appropriate the wor9 tohimself without paying indemnity'!Damages also?"

:oses his wor9' <o right toindemnity'

+2cept 8 When for artistic or scientificreasons# the thing has a alueconsiderably higher than thematerial' /he owner of the materialcannot appropriate the wor9'

>ption *8 Demand indemnity formaterial plus damages'

3ay for the materials and damages'

Must pay indemnity and damages'

Art 42* In the #rece$ing articles+ sentimental 'al,e shall e $,lya##reciate$&

Adjunction# mixture and specification distinguished

Adjunction Mixture pecification

At least two things At least two things May be only one ting

whose form is changed)omponent parts retainor presere their nature

/hings mixed may ormay not retain theirrespectie originalnature

)omponent parts retainor presere their nature

Accessory followsprincipal

)o7ownership results Accessory followsprincipal

:;APTER T;REE% FCIETIN> O3 TITLE

ART 420 <hene'er there is a clo,$ on title to real #ro#erty or anyinterest therein+ y reason o" any instr,ment+ recor$+ claim+enc,mrance or #rocee$ing which is a##arently 'ali$ or e""ecti'e ,t it

is in tr,th an$ in "act in'ali$+ ine""ecti'e+ 'oi$ale or ,nen"orceale+an$ may e #re!,$icial to sai$ title+ an action may e ro,ght toremo'e s,ch clo$ or to 6,iet the title&

An action may also e ro,ght to #re'ent a clo,$ "rom eingcast ,#on title to real #ro#erty or any interest therein&

/itle to real property refers to that upon which ownership is based'3laintiff in action for %uiet title dies# should it be dismissed? <o' 4t’s a %uasi inrem suit'Defendant’s defenses8 prescription# lac9 of jurisdiction of court


27




PROPERTY NOTES

)loud on title

• emblance of title# either legal or e%uitable# or a claim or a right in real

property# appearing in some legal from# but which is in fact# inalid orwhich would be ine%uitable to enforce

• $e%uisites

i' 4nstrument# record# claim# encumbrance or proceeding which isapparently alid or effectie#

ii' uch instrument is in truth and in fact# inalid# ineffectie#oidable or unenforceable# or has been extinguished orterminated# or has been barred by extinctie prescription

iii' uch instrument may be prejudicial to said title

Action to %uiet title

• $e%uisites8

i. 3laintiff or complainant has a legal or an e%uitable title to# orinterest in the real property subject of the action

ii. /he deed# claim or proceeding claimed to be casting cloud onhis title must be shown to be# in fact# inalid or inoperatiedespite its prima facie appearance of alidity or legal efficacy

Action to %uiet title Action to remoe a cloud on title

• 3urpose to put an end to

troublesome litigation in respectto the property inoled

• $emedial action inoling a

present aderse claim

• &st paragraph of Art IH

• $emoal of a possible

foundation for a future hostileclaim

• 3reentie action to preent a

future cloud on the title

• *nd paragraph of Art IH

• An action to %uiet title includes an action to remoe a cloud of title'

<ature of action

• <uasi in rem

• @udgment is conclusie only between the parties

• /he res# the subject7matter of the controersy# is within the court’s

jurisdiction# and it is because of that circumstance that the court is ableto adjudicate

• <ot essential that the court ac%uire jurisdiction of the person of the

defendant

6enefits from allowing actions

• /as9 of court is to determine the respectie rights of the parties so that

the complainant and those claiming under him may foreer free fromany danger of hostile claim !$umarate case"

•

Affords prompt and ade%uate method to remoe cloud on title• 3romotes improement of property

/o what 9ind of property does this action apply?

• $eal property# which may refer to either the title or only an interest

therein !usufruct# seritude# lease record# etc"

• <ot to personal property

o 6ut# they may be applied to personalty under exceptional

circumstances with respect to certain types of property which parta9e of the nature of real property !essels# motor

ehicles# certificates of stoc9s"# or treated to some extent as realty because of

registration re%uirements for ownership or

transactions affecting them !chattel mortgage"

3rescriptibility of action&' 4f plaintiff in possession# it does not prescribe' An action to %uiet title

brought by a person who is in possession of the property isimprescriptible'

*' 4f plaintiff not in possession# he must ino9e his remedy within theproper prescriptie period' /en years if in good faith# -; years if in badfaith'

Art 422 The #lainti"" m,st ha'e legal or e6,itale title to+ or interest inthe real #ro#erty which is the s,!ect matter o" the action& ;e nee$ note in #ossession o" sai$ #ro#erty&

/itle and possession of the plaintiff

• 3laintiff must hae a legal or e%uitable title or an interest in the real

property which is the subject matter of the actiono :egal title may consist in full ownership or in na9ed ownership

o 4f plaintiff has beneficial interest in the property !such as a

beneficiary in a trust"# he has beneficial titleo 4nterest in property is any interest short of ownership# li9e the

interest of a mortgagee or a usufructuary


28




PROPERTY NOTES

• 4f plaintiff is not in possession# he may also bring one of the three

actions mentioned in addition to the action to %uiet title

• 4n order to afford complete relief to the parties in action to %uiet title# the

court# without thereby conerting the action from %uieting of title into

accion publiciana, may determine#8o 4ncidentally the ownership#

o /he stats of the legal title to the property

o $ight to the possession thereof

Art 425 There may also e an action to 6,iet title or remo'e a clo,$there"rom when the contract+ instr,ment or other oligation has eene/ting,ishe$ or has terminate$+ or has een arre$ y e/tincti'e#rescri#tion&

/wo cases when action allowed An action to %uiet title may be maintained8&' When the contract# instrument# or other obligation has been

extinguished or terminated !right of the defendant has beenextinguished by the happening of a condition subse%uent"

*' When the contract# instrument or other obligation has been barred byextinctie prescription !as where plaintiff has possess in bad faith theproperty publicly# adersely and uninterruptedly for -; years"

Art 427 The #lainti"" m,st ret,rn to the $e"en$ant all ene"its he mayha'e recei'e$ "rom the latter+ or reim,rse him "or e/#enses that mayha'e re$o,n$e$ to the #lainti""Bs ene"it&

>bligation of plaintiff to return or reimburse

• /he purpose of the action to %uiet title is solely

o to remoe the cloud on the plaintiff’s title or

o to preent a cloud from being cast upon his title# and not to

obtain any other benefit• 3laintiff is bound to return to the defendant all the benefits he may hae

receied form the latter or reimburse him for the expenses incurred onthe property which has redounded to the plaintiff’s benefit !less ofcourse# any damage which he suffered by reason of the defendant"

Art 459 The #rinci#les o" the general law on the 6,ieting o" title areherey a$o#te$ inso"ar as they are not in con"lict with this :o$e&

Art 451 The #roce$,re "or 6,ieting o" title or the remo'al o" a clo,$there"rom shall e go'erne$ y s,ch r,les o" co,rt as the S,#reme:o,rt shall #rom,lgate&

:;APTER 3OCR% RCINOCS =CIL8IN>S AN TREES IN8AN>ER O3 3ALLIN>

Art 45) I" a ,il$ing+ wall+ col,mn or any other constr,ction is in$anger o" "alling+ the owner shall e olige$ to $emolish it or toe/ec,te the necessary wor- in or$er to #re'ent it "rom "alling&

I" the #ro#rietor $oes not com#ly with this oligation+ thea$ministrati'e a,thorities may or$er the $emolition o" the str,ct,re atthe e/#ense o" the owner+ or ta-e meas,res to ins,re #,lic sa"ety&

• 4f a building# wall# column or other construction is in danger of falling# the

owner has the duty to either8o Demolish it# or

o $epair it'• 4n case he doesn’t# the administratie authorities# in the exercise of

police power# may order the demolition of the structure# or ta9emeasures to insure public safety

• $ecognition of the limitation of the owner’s rights in the use and

enjoyment of his propertyo Sic utere tuo ut alienum non laedas/ 2 (se your property as

not to injure others

Art 45. <hene'er a large tree threatens to "all in s,ch a way as toca,se $amage to the lan$ or tenement o" another or to tra'elers o'er a#,lic or #ri'ate roa$+ the owner o" the tree shall e olige$ to "ell an$remo'e it( an$ sho,l$ he not $o so+ it shall e $one at his e/#ense y

or$er o" the a$ministrati'e a,thorities&

• >wner of the tree may be compelled to fell and remoe a threatening

tree# and should he fail to do so# the wor9 shall be ordered done at hisexpenses by the administratie authorities

TITLE III :OO<NERS;IP


29




PROPERTY NOTES

ART 454 There is coownershi# whene'er the ownershi# o" an,n$i'i$e$ thing or right elongs to $i""erent #erson&

In $e"a,lt o" contracts+ or o" s#ecial #ro'isions+ coownershi#shall e go'erne$ y the #ro'isions o" this Title&

What is co7ownership?• As a manifestation of ownership# it is that form of ownership which

exists wheneer an undiided thing or right belongs to different persons

• As a right# it has been defined as the right of common dominion which

two or more persons hae in a spiritual or ideal part of a thing which isnot materially or physically diided

$e%uisitesi. 3lurality of ownersii. >bject of ownership must be an undiided thing or rightiii. .ach co7owners’ right must be limited only to his ideal share of the

physical whole

)haracteristics of co7ownership&' /wo or more co7owners*' ingle object which is not materially or physically diided# oer which

and his ideals share of the whole# each co7owner exercises ownership#together with the co7owners

-' <o mutual representation by the co7owners' .xists for the common enjoyment of the co7ownersC' <o distinct legal personalityH' Goerned first by the contract of parties

a' otherwise# by special legal proisionsb' in default of such proisions# by this /itle

>wnership of a co7owner

•>wnership of whole and oer his ali%uot share

• .ach owner is at the same time absolute owner of his own ideal but

definite share which determines his rights and obligations in the co7ownership

• .ery co7owner# jointly with the other co7owners# is the owner

i' of the whole# and oer the whole he exercises the right ofdominion# and

ii' he is at the same time the owner of an ali%uot portion which istruly abstract because until diision is effected such portion isnot concretely determined

Disputed portions owned already concretely determined

• <o co7ownership when the different portions owned by different people

are already concretely determined and separately identifiable# een ifnot yet technically described

• .xample8 When northern half of land belongs to buyer# southern

half belongs to seller

ources of co7ownership&' )ontract !two persons share in paying purchase price"*' :aw !easement in party walls# absolute community of property"-' uccession !in the case of heirs of undiided property"' /estamentary disposition or donation inter ios !testator prohibits

partition of the property"C' Bortuitous eent or by chance !commixtion or confusion by accident"H' >ccupancy !two fol9s catch a wild animal in the jungles of 6orneo"

)o7ownership @oint >wnership

• .ach co7owner# together withthe others# is the owner of thewhole undiided thing or rightbut at the same time of his ownideal part thereof

• )an dispose of his share

without the consent of the other

• uriors are subrogated to the

rights of the deceasedimmediately upon the death ofthe latter

• Disability of a co7owner does

not inure to the benefit of theothers

• <o abstract share ownership bythe co7owners# the right of the joint tenants being inseparable

• <ot permitted to dispose of his

share or interest in the propertywithout the consent of others

• 4f joint tenant dies# his

ownership dies with him

• Disability of a joint tenant inures

to the benefit of the others forpurposes of prescription

)o7ownership 3artnership

• May be created without

formalities of a contract

• <o juridical or legal personality

• 3urpose is collectie enjoyment

of the thing

• )an be created only by a

contract# express or implied

• Distinct juridical personality

• 3urpose to obtain profits

Mic9ey 4ngles

Ateneo :aw *;&*:ibrat8 <o stamping please=

30




PROPERTY NOTES

• )o7owner can dispose of his

share without the consent of theothers# transferee automaticallybecoming a co7owner

•

<o mutual representation• Distribution of profits must be

proportional to the respectieinterests of the co7owners

• <ot dissoled by death

• Agreement to 9eep the thing

undiided for a period of morethan ten years is oid !althoughit may be extended by a newagreement"

• (nless authoried# a partner

cannot dispose and substituteanother partner in his place

• 3artner can generally bind the

partnership• Distribution of profits is subject

to stipulation of the partners

• Dissoled by death or incapacity

• /here may be agreement as to

any definite term without limitset by law

)o7ownership .asement

• .ach co7owner has a right of

dominion oer the wholeproperty and oer his undiidedshare

• $ight of ownership rests solely

on each and eery co7owneroer a single object

• 3recisely a limitation on the right

of dominion

• $ight of dominion is in faor of

one or more persons and oertwo or more different things

)ase doctrines

• /he property regime of parties to a bigamous marriage is goerned by

Art & of the Bamily )ode which proides that all properties ac%uiredby the parties out of their actual joint contribution of money# property# orindustry shall be goerned by the rules on co7ownership' 4f there is nocontribution from either or both of the spouses# there can be no co7

ownership' !Acre utti99i 7 aw yeah# what a name'"

Art 45* The share o" the coowners+ in the ene"its as well as in thecharges+ shall e #ro#ortional to their res#ecti'e interests& Anysti#,lation in a contract to the contrary shall e 'oi$&

The #ortions elonging to the coowners in the coownershi#shall e #res,me$ e6,al+ ,nless the contrary is #ro'e$&

3resumption8 3roportional to their respectie interestsDoes not apply to co7ownership based on will or by donation'

Art 450 Each coowner may ,se the thing owne$ in common+ #ro'i$e$he $oes so in accor$ance with the #,r#ose "or which it is inten$e$ an$in s,ch a way as not to in!,re the interest o" the coownershi# or#re'ent the other coowners "rom ,sing it accor$ing to their rights& The#,r#ose o" the coownershi# may e change$ y agreement+ e/#ressor im#lie$&

:imitations on co7owner’s right to use&' Must be n accordance with the purpose for which the co7ownership is

intended

• $esort to the agreement

• 4n absence thereof# it is to be understood that the thing is

intended for that use for which it is ordinarily adapted accordingto its nature

• )o7owners are free to change the purpose of the co7ownership

by agreement# express or impliedo Eoweer# mere tolerance does not change purpose

*' Must not injure the interest of the co7ownership-' Must not preent the co7owners from using it according to their rights

Art 452 Anyone o" the coowners may ring an action in e!ectment&

Action in ejectment

• Any co7owner can bring# in behalf of himself# and the other co7owners

an action in ejectment affecting the co7ownershipo Borcible entry# unlawful detainer# recoery of possession#

recoery of ownership

• May be brought against strangers and een against a co7owner

o >nly purpose of an action against a co7owner who ta9es

exclusie possession and asserts exclusie ownership of theproperty is to obtain recognition of the co7ownership

• An aderse decision in the action is not necessarily res judicata with

respect to the other co7owners not being parties to the actiono .xception8 where it appears that the action was instituted in

their behalf with their express or implied consent# or o /he rights in the co7ownership are deried from the title of their

predecessors7in7interest found by the court to be inalid orinexistent

Mic9ey 4ngles


31




PROPERTY NOTES

Art 455 Each coowner shall ha'e a right to com#el the other coowners to contri,te to the e/#enses o" #reser'ation o" the thing orright owne$ in common an$ to the ta/es& Anyone o" the latter maye/em#t himsel" "rom this oligation y reno,ncing so m,ch o" his,n$i'i$e$ interest as may e e6,i'alent to his share o" the e/#enses

an$ ta/es& No s,ch wai'er shall e ma$e i" it is #re!,$icial to the coownershi#&

>bligation to contribute to expenses of preseration and to taxes

• /he expenses of preseration of the thing or right owned in common

and the amount of taxes due thereon should be borne by all

• A co7owner who adanced them has a right to demand reimbursement

from the others in proportion to their respectie interests in the co7ownership

• $efers only to necessary expenses

• (seful expenses are not coered# unless such were incurred with the

consent of the others

• .xpenses for pure luxury are not also refundable# not being for

preseration

$enunciation by a co7owner of his share in the co7ownership

• $enunciation need not be total

• /he co7owner need only renounce or gie up in faor of the other co7

owners so much of this undiided share as may be e%uialent to hisshare of expenses and taxes

• .xample?

Art 457 Re#airs "or #reser'ation may e ma$e at the will o" one o" oneo" the coowners+ ,t he m,st+ i" #racticale+ "irst noti"y his coownerso" the necessity "or s,ch re#airs& E/#enses to im#ro'e or emellish thething shall e $eci$e$ ,#on y a ma!ority as $etermine$ in Article 47)&

<ecessity for agreement on expenses

• Acts or decisions affecting the ting owned in common may be grouped

intoo Acts of preseration !Art K"

o Acts of administration !Art K*"

o Acts of alteration !Art K&"

• $epairs for preseration

o A co7owner has the right to compel the other co7owners to

contribute to the expenses of preseration# maintenance ornecessary repairs of the thing or right owned in common# andto the taxes# een if incurred without the 9nowledge of otherco7owners or prior notice to them# in iew of the nature ofexpenses

o )o7owner must# if practicable# first notify the co7owners of the

necessity for the repairs 4f impracticable or where the repairs are ery urgent

and the other co7owners are in remote places andcannot be reached# the notice may be dispensed with

o /he lac9 of notice# een if practicable# would not exempt the

other co7owners from the obligation to contribute to theexpenses' 6ut the co7owner who adanced them has theburden of proing that they were properly incurred'

Art 479 <hene'er the $i""erent stories o" a ho,se elong to $i""erentowners+ i" the titles o" ownershi# $o not s#eci"y the terms ,n$er which

they sho,l$ contri,te to the necessary e/#enses an$ there e/ists noagreement on the s,!ect+ the "ollowing r,les%

1& the main an$ #arty walls+ the roo"s an$ the other things ,se$in common+ shall e #reser'e$ at the e/#ense o" all theowners in #ro#ortion to the 'al,e o" the story elonging toeach(

)& Each owner shall ear the cost o" maintaining the "loor o" hisstory( the "loor o" the entrance+ "ront $oor+ common yar$ an$sanitary wor-s common to all shall e maintaine$ at thee/#ense o" all the owners #ro rata(

.& The stairs "rom the entrance to the "irst story shall emaintaine$ at the e/#ense o" all the owners #ro rata+ with thee/ce#tion o" the owner o" the gro,n$ "loor( the stairs "rom the

"irst to the secon$ story shall e #reser'e$ at the e/#ense o"all+ e/ce#t the owner o" the gro,n$ "loor an$ the owner o" the"irst story( an$ so on s,ccessi'ely&

• Applies if the titles of ownership do not specify the terms thereof or there

exists no agreement on the subject

Art 471 None o" the coowners shall witho,t the consent o" the others+ma-e alterations in the thing owne$ in common+ e'en tho,gh ene"its"or all wo,l$ res,lt there"rom& ;owe'er+ i" the withhol$ing o" the

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PROPERTY NOTES

consent y one or more ot the coowners is clearly #re!,$icial to thecommon interest+ the co,rts may a""or$ a$e6,ate relie"&

<ecessity of consent of other co7owners for alterations

• Alteration contemplates a change made by a co7owner in the thing

owned in common which inoles8o )hange of the thing from the state or essence in which the

others beliee it should remain5 or o Withdrawal of the thing from the use to which they wish it to be

intended5 or o Any other transformation which prejudices the condition or

substance of the thing or its enjoyment by the others'

• Alteration is not limited to material or physical changes

o 4ncludes any act of ownership by which a real right or

encumbrance is imposed on the common property# such asseritude# registered lease# lease of real property for more thanone year# mortgage# pledge

• <68 (nanimous consent of all the co7owners# not a mere majority# is

necessary een if the alteration would proe beneficial becausealteration is an act of ownership and not of mere administration

o )onsent may be expressed or implied

• :iability for alteration8 the co7owner who ma9es such alteration without

the express or implied consent of the other co7owners acts in bad faithbecause he does so as if he were the sole owner

o Ee loses what he has spent

o >bliged to demolish the improements done# and

o :iable to pay for loses and damages the community property or

the other co7owners may hae suffered

Art 47) 3or the a$ministration an$ etter en!oyment o" the thing owne$

in common+ the resol,tions o" the ma!ority o" the coowners shall ein$ing&There shall e no ma!ority ,nless the resol,tion is a##ro'e$

y the coowners who re#resent the controlling interest in the o!ect o" the coownershi#&

Sho,l$ there e no ma!ority+ or sho,l$ the resol,tion o" thema!ority e serio,sly #re!,$icial to those intereste$ in the #ro#ertyowne$ in common+ the co,rt+ at the instance o" an intereste$ #arty+shall or$er s,ch meas,res as it may $eem #ro#er+ incl,$ing thea##ointment o" an a$ministrator&

<hene'er a #art o" the thing elongs e/cl,si'ely to one o" thecoowners+ an$ the remain$er is owne$ in common+ the #rece$ing#ro'isions shall a##ly only to the #art owne$ in common&

$ules for acts of administration and better enjoyment

• Acts of management of the common property

• /hey contemplate acts or decisions for the common benefit of all the co7

owners and not for the benefit of only one or some of them

• While alteration is more or less permanent# acts of administration hae

transitory effects and hae for their purpose the preseration#preparation and better enjoyment of the thing and which do not affect itsessence# nature or substance

• <68 Majority rule preails'

o /he majority consists of co7owners who represent the

controlling interest in the object of the co7ownership'o /he majority li9ewise decides the expenses to improe or

embellish the common property' <otice must be gien to the

minority unless it is impracticable to do so'• 4f there is no majority or the resolution of the majority is seriously

prejudicial to the interests of the other co7owners# the court# at theinstance of an interested party# may ta9e such measures as it maydeem proper

o .xamples of prejudicial acts8

$esolution calls for a substantial change of the thing

Authories leases# loans# and other contracts without

the necessary security (pholds the continued employment of an

administrator who is guilt of fraud or negligence in hismanagement

Art 47. Each coowner shall ha'e the ",ll ownershi# o" his #art an$ o"the "r,its an$ ene"its #ertaining thereto+ an$ he may there"orealienate+ assign or mortgage it+ an$ e'en s,stit,te another #erson inits en!oyment+ e/ce#t when #ersonal rights are in'ol'e$& =,t the e""ecto" the alienation or the mortgage+ with res#ect to the coowners shalle limite$ to the #ortion which may e allotte$ to him in the $i'ision,#on the termination o" the coownershi#&

$ights of each co7owner

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PROPERTY NOTES

&' Bull ownership of his part# that is# his undiided interest or share in thecommon property

*' Bull ownership of the fruits and benefits pertaining thereto-' May alienate# assign or mortgage his ideal interest or share

independently of the other co7owners

' May een substitute another person in the enjoyment of his part# exceptwhen personal rights are inoled

• A co7owner is gien the legal right of redemption in case the shares of

all the other co7owners or any of them are sold to a third person !not aco7owner"&

o Earry# $on and <eille were co7owners of a parcel of land'

Earry sold his share to Draco' $on and <eille may redeemthe share from Angel' 4f only $on exercises the right# he shallpay only a reasonable price' ubject to reimbursement from<eille# as it is a preseration expense'

o 4f they both want to exercise the right# they may only do so in

proportion to the share they may respectiely hae in the thing

owned in common'

• A co7owner may exempt himself from the obligation to contribute to the

expenses of preseration of the thing or right owned in common and tothe taxes by renouncing so much of his interest as may be e%uialent tohis share of the expenses and taxes

ale or mortgage of common property

• (ndiided portion

o A co7owner is free to dispose of his pro indiiso share and of

the fruits and other benefits arising from that share but thetransferee does not ac%uire an specific or determinate physicalportion of the whole# his right being limited to the portion which

may be allotted to him upon the partition of the property• Definite portion

1 Art &H*; A co7owner of a thing may exercise the right of redemption in case the

shares of all the other co7owners or of any of them# are sold to a third person' 4f theprice of the alienation is grossly excessie# the redepmtioner shall pay only areasonable one'hould two or more co7owners desire to exercise the right of redemption they mayonly do so in proportion to the share they may respectiely hae in the thing owned incommon'

o /he fact that a deed of sale appears to coney a definite or

segregated portion of the property under co7ownership that isstill undiided does not per se render the sale a nullity

o /he sale is alid subject only to the condition that the interests

ac%uired by the endee must be limited to the part that may beassigned to the co7owner7endor in the diision upon thetermination of the co7ownership

o /he sale affects only his proportionate or abstract share in the

property owned in common# subject to the results of thepartition# but not those of the other co7owners who did notconsent to the sale

o /here may be a alid sale of a definite portion of the property

co7owned een before actual partition where the rule ofestoppel apples !co7owners didn’t object when seller pointed aportion out to a potential buyer"

• Whole property

o .en if a co7owner sells the whole property as his own# or

without the consent of ther other co7owners# the sale is alidonly insofar as his ideal %uota is concerned unless the sale isauthoried by the other co7owners

o A sale of the entire property by one co7owner will only transfer

the rights of said co7owner to the buyer# thereby ma9ing thebuyer a co7owner of the property

o $ecourse of co7owners when their consent was not secured8

action for partition

Where personal rights are inoled

• A co7owner may substitute another in the enjoyment of his undiided

interest in the co7ownership except when personal rights are inoled

• 3ersonal right 2 a right which cannot be transferred because it affects

the personal relations of the co7owners with one another

Art 474 No coowner shall e olige$ to remain in the coownershi#&Each coowner may $eman$ at any time the #artition o" the thingowne$ in common+ inso"ar as his share is concerne$&

Ne'ertheless+ an agreement to -ee# the thing ,n$i'i$e$ "or acertain #erio$ o" time+ not e/cee$ing ten years+ shall e 'ali$& Thisterms may e e/ten$e$ y a new agreement&

A $onor or testator may #rohiit #artition "or a #erio$ whichshall not e/cee$ twenty years&

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PROPERTY NOTES

Neither shall there e any #artition when it is #rohiite$ y law&No #rescri#tion shall r,n in "a'or o" coowner or coheir

against his coowners or coheirs so long as he e/#ressly or im#lie$lyrecognies the coownershi#&

/ermination of co7ownership• )o7ownership may be terminated in different ways# as follows

&' )onsolidation or merger in only one of the co7owners of all theinterests of the others5

*' Destruction or loss of the property co7owned-' Ac%uisitie prescription in faor of a third person# or a co7owner

who repudiates the co7ownership' 3artition# judicial or extrajudicialC' /ermination of the period agreed upon or imposed by the donor or

testator# or of the period allowed by lawH' ale by the co7owners of the thing to a third person and the

distribution of its proceeds among them

$ight of a co7owner to demand partition• 3artition is the diision between two or more persons of real or personal

property which they own in common so that each may enjoy andpossess his sole estate to the exclusion of and without interference fromthe others

• )o7owner ahs the right to demand at any time partition of the thing

owner in common# insofar as his share is concerned for 0no co7ownershall be obliged to remain in the co7ownership1

• Action to demand partition is imprescriptible or cannot be barred by

laches# absent a clear repudiation of the co7ownership by a co7ownerclearly communicated to the other co7owners

• /he actual possession and enjoyment of seeral portions of the

common property by some of the co7owners does not of itself proide

proof that the property has already been partitioned and co7ownershipterminated'

o A co7owner cannot# without the conformity of the other co7

owners or judicial decree of partition# adjudicate to himself infee simple a determinate portion of the property owned incommon as his share theirein# to the exclusion of the others

.xceptions to the right to demand partition

&' When the co7owners hae agreed to 9eep the thing undiided for acertain period of time# not exceeding ten years

o 3eriod stipulated exceeds ten years would be oid insofar as

the excess is concerned*' When the partition is prohibited by donor or testator for a certain period

not exceeding twenty years-' When the partition is prohibited by law

o )onjugal property# etc

' When partition would render the thing unsericeable for the use forwhich it is intended

C' When another co7owner has possessed the property as exclusie owner and for a period sufficient to ac%uire it by prescription

3rescription in faor of or against a co7owner

• 3rescription does not run in faor or against a co7owner or co7heir

• )o7ownership is a form of a trust# with each owner being a trustee for

each other'

• Where# howeer# a co7owner or co7heir repudiates the co7ownership#

prescription begins to run from the time of repudiation !re%uisites"i' Ee had performed une%uiocal acts of repudiation of the co7

ownership amounting to an ouster of the beneficiary or theother co7owners

ii' uch positie acts of repudiation hae been made 9nown tothe beneficiary or other co7owners

iii' .idence thereon is clear# complete and conclusie in order toestablish prescription without any shadow of doubt5 and

i' 3ossession is open# continuous# exclusie and notorious

.xamples of specific acts which are considered as acts of repudiation

• Biling by a trustee of an action in court against the trustor to %uiet title to

property

• Action for reconeyance of land based on implied or constructie trust• )ancellation of title in the name of the apparent beneficiaries and

application for a new certificate of title in his !administratorLtrustee"name

Art 47* Notwithstan$ing the #ro'isions o" the #rece$ing article+ the coowners cannot $eman$ a #hysical $i'ision o" the thing owne$ incommon+ when to $o so wo,l$ ren$er it ,nser'iceale "or the ,se "or

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PROPERTY NOTES

which it is inten$e$& =,t the coownershi# may e terminate$ inaccor$ance with Article 475&

Art 470 Partition may e ma$e y agreement etween the #arties or y !,$icial #rocee$ings& Partition shall e go'erne$ y the R,les o" :o,rt

inso"ar as they are consistent with this :o$e&

3urpose and effect of partition

• 3artition has for its purpose the separation# diision and assignment of

the thing held in common among those to whom it may belong'

• After partition# the portion belonging to each co7owner has been

identified and localied# so that co7ownership# in its real sense# nolonger exists

Action for partition

• /wo phases8

o Determine whether there is indeed a co7ownership

o Determine how the property is to be diided

• /he issue of ownership or co7ownership must first be soled in order to

effect a partition of properties

• An action for partition will not lie if the claimant has no rightful interest

oer the subject property

Eow partition effected

• May be effected extrajudicially pursuant to an agreement

• May be effected judicially by judicial proceedings under $ule HK of the

$ules of )ourto An action for partition is in the nature of an action =uasi in rem

Application of the tatute of Brauds

•

/he tatute of Brauds does not apply to partition because it is not legallydeemed a coneyance or a sale of property resulting in change ofownership but simply a segregation and designation of that part of theproperty which belongs to each of the co7owners

• >ral partition is alid and enforceable where no third persons are

inoledo 4n cases of oral partition# the actual possession of one of the

property is eidence that there was indeed oral partition'o 4n an oral partition under which the parties went into

possession# exercises acts of ownership# or otherwise partly

performed the partition agreement# e%uity will confirm suchpartition and in a proper case# decree title in accordance withthe possession in seeralty

Art 472 The cre$itors or assignees o" the coowners may ta-e #art in

the $i'ision o" the thing owne$ in common an$ o!ect to its einge""ecte$ witho,t their conc,rrence& =,t they cannot im#,gn any#artition alrea$y e/ec,te$+ ,nless there has een "ra,$+ or in case itwas ma$e notwithstan$ing a "ormal o##osition #resente$ to #re'ent it+witho,t #re!,$ice to the right o" the $etor or assignor to maintain its'ali$ity&

• /he law does not expressly re%uire that preious notice of the proposed

partition be gien to the creditors and assignees' 6ut as they aregranted the right to participate in the partition# they hae also the right tobe notified thereof' 4n the absence of notice# the partition will not bebinding on them'

• $ules8

o 4f no notice is gien# the creditors or assignees may %uestionthe partition already made5

o 4f notice is gien# it is their duty to appear and ma9e 9nown

their position5 they may concur with the proposed partition orobject to it5 and

o /hey cannot impugn a partition already executed or

implemented unless8 /here has been fraud# whether or not notice was

gien# and whether or not formal opposition waspresented# or

/he partition was made notwithstanding that formal

opposition was presented to preent it# een if therehas been no fraud'

• Debtor or assignor has always the right to show the alidity of thepartition'

Art 475 <hene'er the thing is essentially in$i'isile an$ the coownerscannot agree that it e allotte$ to one o" them who shall in$emni"y theothers+ it shall e sol$ an$ its #rocee$s $istri,te$&

• Although the thing cannot be physically diided# the co7ownership may

neertheless be terminated in accordance with the aboe proision

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PROPERTY NOTES

pursuant to the rule in Art K by adjudication of the thing to one of theco7owners who shall indemnify the others or by its sale with theproceeds thereof diided among the co7owners

• ale may be priate# public# and purchases may be a co7owner or a

third person

• Art K applies when8

o /hing indiisible

o )o7owners can’t agree that it be allotted to one of them# who

shall indemnify the otherso o# ibenta na lang;

Art 477 The #artition o" a thing owne$ in common shall not #re!,$icethir$ #ersons who shall retain the rights o" mortgage+ ser'it,$e+ or anyother real rights elonging to them e"ore the $i'ision was ma$e&Personal rights #ertaining to thir$ #ersons against the coownershi#shall also remain in "orce+ notwithstan$ing the #artition&

• /hird persons# refer to all those with real rights# such as mortgage and

seritude oer the thing owned in common or with personal rightsagainst the co7owners who had no participation whateer in the partition

Art *99 C#on #artition+ there shall e a m,t,al acco,nting "or ene"itsrecei'e$ an$ reim,rsements "or e/#enses ma$e& Li-ewise+ each coowner shall #ay "or $amages ca,se$ y reason o" his negligence or"ra,$&

Art *91 E'ery coowner shall+ a"ter #artition+ e liale "or $e"ects o" titlean$ 6,ality o" the #ortion assigne$ to each o" the other coowners&

What are the obligations of the co7owners upon partition? !A$4W"&' Mutual accounting for the benefits receied !because the fruits and

other benefits of the thing belong to all the co7owners"*' Mutual reimbursement for expenses !necessary expenses# taxes# etc"-' 4ndemnity for damages caused by reason of negligence or fraud' $eciprocal warranty for defects of title or %uality of the portion assigned

to a co7owner !land allotted to a co7owner belongs to a third party# or theproperty is of inferior %uality"

a' Atty Abrenica said that in practice# the remedy in this situationis to diide the remaining property and just gie it to the oneprejudiced

T;E :ON8OMINICM A:T• A condominium is an

o 4nterest in real property consisting of

A separate interest in a unit in a residential# industrial#

or commercial building# and An undiided interest in common directly or indirectly

in the land on which it is located and in other commonareas of the building'

• /wo important documents8 Master Deed and Declaration of $estrictions

• Boreigners can own up to ;O of the entire condominium corporation

!so if the condominium has &;; units# foreigners can own up to ; units"

• 03roject1 means the entire parcel of real property diided or to be

diided in condominiums# including all structures thereon

• 0)ommon areas1 !meaning the entire project excepting all units

separately granted or held or resered" are owned by the condominiumcorporation

• 03riate units1 !meaning the a part of the condo project intended for any

type of independent use or ownership" are owned by the unit ownerso (nit owners are shareholders in the condominium

o 4f you sell your unit to someone else# you lose your status as a

shareholder in the condominium corporation

• )ondominium )ertificate of /itle is what’s gien !as opposed to a >)/

or /)/"

TITLE V POSSESSION:;APTER ONEPOSSESSION AN8 T;E GIN8S T;EREO3

Art *). Possession is the hol$ing o" a thing or the en!oyment o" a right&

)oncept of possession

• As a distinct legal concept# possession is the holding of a thing or the

enjoyment of a right with the intention to possess in one’s own right

>wnership and possession distinguished

• /here is ownership when a thing pertaining to one person is completely

subjected to his will in a manner not prohibited by law and consistentwith the rights of others' 4t confers certain right to the owner !right to

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PROPERTY NOTES

enjoy the thing owned and the right to exclude other persons frompossession thereof"

• >n the other hand# possession is defined as the holding of a thing or the

enjoyment of a right' /o possess means to actually and physicallyoccupy a thing with or without a right'

• 3ossession may be in the concept of an owner or in the concept of a

holder'

• A person may be declared owner but he may not be entitled to

possession' !As in when the possession is in the hands of a tenant"

• A judgment for ownership does not necessarily include possession as a

necessary incident'

• @ust as possession is not a definite proof of ownership# neither is non7

possession inconsistent with ownership'

What are the elements of possession?&' Eolding or control of a thing or right

• 3ossession always implies the element of corpus or occupation#

whether in one’s own name or another !except in cases in Art C-I"• 4n other words# there must be possession in fact

*' With intention to possess

• the intention and the will to possess are inferred f rom the fact that

the thing is under the control of the alleged possessor# howeer# theexistence of the animus possidendi is always subject tocontradiction !when in fact the person does not in fact exercisesuch power of control and does not intend to do so"

• 4nsane and demented persons cannot ac%uire possession as they

are incapable of understanding their actions# therefore# the animus possidendi cannot be present

-' 4n one’s own right

• 3ossession may be in one’s own name or that of another’s !by

himself or by an agent"• 4n the first case# the possession may be in the concept of owner or

in the concept of a holder of a thing with ownership pertaining toanother

• 4n the second case# the possession is exercised by the owner or

holder thru his agent

• 4n both cases# the possession of the owner or holder is by irtue of

his right as such owner or holder

What are the relations created by possession?

• 3ossession is characteried by two relations8

&' 3ossessor’s relation to the property itself 2 this assumes that thepossessor exercises some degree of control more or less effectieoer the object'

*' 3ossessor’s relation to the world 2 aside from the power of controloer the object# the possessor must also hae the ability to excludeothers from his possession' A customer who holds and examines apiece of jewelry in the presence of the seller may be said to haeonly custody# not possession# of the jewelry'

Borms or degrees of possession&' 3ossession without any title whateer

• Mere holding or possession without any right or title at all# such as

that of a thief or s%uatter *' 3ossession with a juridical title

• 3redicated on a juridical relation existing between the possessor

and the owner !or one acting in his behalf" of the thing but not in the

concept of owner# such as that of a lessee# usufructuary# depositary#agent# etc

-' 3ossession with a just title

• 3ossession of an aderse claimant whose title is sufficient to

transfer ownership but is defectie# such as when the seller is notthe true owner or could not transmit his rights thereto to thepossessor who acted in good faith

' 3ossession with a title in fee simple

• 3ossession deried from the right of dominion or possession of an

owner' /his is the highest degree of possession'

<ature of possession&' As an act

• imply the holding of a thing or the enjoyment of a right with theintention to possess in one’s own right

*' As a fact

• When there is holding or enjoyment# then possession exists as a

fact' 4t is the state or condition of a person haing property underhis control# with or without right

-' As a right

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PROPERTY NOTES

• $efers to the right of a person to that holding or enjoyment to the

exclusion of all others haing better right than the possessor' 4t maybe8

o Jus possidendi, or right to possession which is incidental

to and included in the right of ownership5 or o Jus possessionis or right o% possession independent of

and apart from the right of ownership'

3ossession as a fact&' /he face of possession gies rise to certain rights and presumptions'

• /hus a person has a right to be respected in his possession# and

should he be disturbed therein# he shall be protected or restored tosaid possession'

• A possessor has in his faor the presumption that his possession is

lawful 2 that he is the owner or has been gien the right ofpossession by the owner' Ee who would disturb a possessor mustshow either ownership or a better possessory right'

*' 3ossession is not a definitie proof of ownership nor is non7possession

inconsistent therewith' 3ossession# howeer# may create ownershipeither by occupation or by ac%uisitie prescription'

)lasses of possession&' 3ossession in one’s own name or in the name of another !Art C*"*' 3ossession in the concept of owner or possession in the concept of

holder !Art C*C"# and-' 3ossession in good faith or possession in bad faith !Art C*H"

.xtent of possession&' Actual possession

• >ccupancy in fact of the whole or at least substantially the whole'

With land# it consists in the manifestation of acts of dominion oer it

of such a nature as a party would naturally exercise oer hisproperty'

• :iterally# to possess means to actually and physically occupy a

thing with or without a right'*' )onstructie possession

• >ccupancy of part in the name of the whole under such

circumstances that the law extends the occupancy to thepossession of the whole'

Doctrine of constructie possession

• 3ossession in the eyes of the law does not mean that a man has to

hae his feet on eery s%uare meter of ground before it can be said thathe is in possession'

• /he general rule is that the possession and cultiation of a portion of a

tract of land under claim of ownership of all is constructie possession of all'

o /here are %ualifications to this rule# and one of them is that

relating to the sie of the tract in controersy with reference tothe portion actually in possession of the claimant'

Art *)4 Possession may e e/ercise$ in oneBs own name or in that o"another&

<ame under which possession may be exercised

• An owner or a holder may exercise his possession in his own name or

through another'

• 4n the same way# possession may be ac%uired by the same person who

is to enjoy it or by one acting for another !Art C-*"&' 4n one’s own name

o When in one’s own name# the fact of possession and the right

to such possession are found in the same person# such as theactual possession of an owner or a lessor of land'

*' 4n the name of another o When possession is in the name of another# the one in actual

possession is without any right of his own# but is merely aninstrument of another in the exercise of the latter’s possession#such as possession of an agent# serant or guard' 3ossessionin another’s name may be8

Foluntary# when exercised by irtue of an agreement#

or

<ecessary or legal# when exercised by irtue of law#such as the possession in behalf of incapacitatedpersons'

3hysical or material# when the possessor is a mere

custodian of the property and has no independentright or title to retain or possess the same as againstthe owner !li9e the possession of money receied bya teller for the ban9"# or

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PROPERTY NOTES

@uridical# when the possession gies the transferee a

right oer the thing which the transferee may set upagainst the owner# such as the possession of anagent who receies the proceeds of sales of goodsdeliered to him in agency by his principal'

)ase doctrines

• 4n the grammatical sense# to possess means to hae# to actually and

physically occupy a thing# with or without a right' /wo things areparamount in possession 2

o there must be occupancy# apprehension or ta9ing# and

o there must be intent to possess !animus possidendi "' !u

3acleb"

• 3ossession always includes the idea of occupation' 4t is not necessary

that the person in possession should himself be the occupant' /heoccupancy can be held by another in his name' without occupancy#there is no possession' !u 3acleb"

Art *)* The #ossession o" things or rights may e ha$ in one o" twoconce#ts% either in the conce#t o" owner+ or in that o" the hol$er o" thething or right to -ee# or en!oy it+ the ownershi# #ertaining to another#erson&

)oncept in which possession may be had

• )oncept# as contemplated in the proision# does not mean the opinion#

attitude or belief of the possessor# but of the others# generally in iew ofthe circumstances which precede and accompany the possession'

• /hus# possession in the concept of owner is distinguished from

possession in good faith'

• /his 9ind of possession is also referred as to aderse possession that

may ripen into ownership under Article C;'• 3ossession may be had in one of two concepts8

./ 3ossession in the concept of owner !en concepto de dueno)

• /his ta9es place when the possessor# by his actions# is

considered or is belieed by other people as the owner#regardless of the good or bad faith of the possession'

• 4t is possession under a claim of ownership or title by one who

is the owner himself or one who is not the owner but claims tobe and acts as the owner'

0/ 3ossession in the concept of holder

• /his ta9es place when the possessor of a thing or right holds it

merely to 9eep or enjoy it# the ownership pertaining to anotherperson'

• 4t is possession not under a claim of ownership# the possessor

ac9nowledging in another a superior right which he beliees tobe of ownership# whether this be true or not# or his belief beright or wrong'

• A person may be a lessor although he is not the owner of the

property leased' 4n lease# only the temporary use andenjoyment# not the ownership of the property is transferred'

3ossession in concept of both owner and holder or in neither

• 4t is possible that a person may exercise possession both in the concept

of owner and in the concept of holder'

• A distinction must be borne in mind between possession of the thing

itself and possession of the right to 9eep or enjoy the thing'o $ights are possessed in the concept of owner' /hus# the

lessee possesses the thing leased in the concept of holder#and the right of lease in the concept of owner'

• /he agent# parent and other legal representaties possess neither in the

concept of owner nor holder' /hey possess in the name of another'

)ase doctrines

• 3ossession is8

o open when it is patent# isible# apparent# notorious and not

clandestine'o continuous when uninterrupted# unbro9en and not intermittent

or occasional'o exclusie when the aderse possessor can show exclusie

dominion oer the land and an appropriation of it to his ownuse and benefito notorious when it is so conspicuous that it is generally 9nown

and tal9ed off by the public or the people in the neighborhood'

• (se of land is aderse when it is open and notorious' !$epublic

4mperial )redit )orporation"

• While a tax declaration by itself is not sufficient to proe ownership# it

may sere as sufficient basis for inferring possession' !$ep 4))"

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PROPERTY NOTES

• /ax declarations and receipts can only be the basis of a claim of

ownership through prescription when coupled with proof of actualpossession' !Eeirs of )abal )abal"

• Eoweer# tax declarations and receipts are not conclusie eidence of

ownership' At most# they constitute mere prima facie proof of ownershipor possession of the property for which the taxes hae been paid' 4n theabsence of actual public and aderse possession# the declaration of theland for tax purposes does not proe ownership' !)e%uena 6olante"

Art *)0 ;e is $eeme$ a #ossessor in goo$ "aith who is not aware thatthere e/ists in his title or mo$e o" ac6,isition any "law whichin'ali$ates it&

;e is $eeme$ a #ossessor in a$ "aith who #ossesses in anycase contrary to the "oregoing&

Mista-e ,#on a $o,t",l or $i""ic,lt 6,estion o" law may e theasis o" goo$ "aith&

Define possessor in good faith and in bad faith

• A possessor in good faith !#uena %e) is one who is not aware that thereexists in his title or mode of ac%uisition any flaw which inalidates it'

• A possessor in bad faith !mala %e) is one who possesses in any case

contrary to the foregoing5 he is aware that there exists in his title ormode of ac%uisition a f law which inalidates it'

• /his article presupposes that the there exists a flaw in the title or mode

of ac%uisition of the possessor who is either aware or not aware of it'

• 4f there is no flaw# there can be no issue regarding good or bad faith'

• Good faith is always presumed# and upon him who alleges bad faith on

the part of the possessor rests the burden of proof'

• /he distinction is importance principally in connection with the receipt of

fruits and the payment of expenses and improements and theac%uisition of ownership by prescription'

• /he distinction is immaterial in the exercise of the right to recoer under

Article C-K which spea9s of eery possessor'

• /he good or bad faith is necessarily personal to the possessor but in the

case of a principal and any person represented by another# the good orbad faith of the agent or legal rep will benefit or prejudice him for whomhe acts'

$e%uisites for possession in good faith or bad faith&' /he possessor has a title or mode of ac%uisition5 !Art I&*"

*' /here is a flaw or defect in said title or mode5 and-' /he possessor is unaware or aware of the flaw or defect or beliees that

the thing belongs or does not belong to him'

• A possessor in good faith becomes a possessor in bad faith from the

moment he becomes aware that what he beliees to be true is not so'

• 4f the flaw is in the title of the possessor’s predecessor# and affects his

own title# the flaw exists in his own title unless he can sustain his ownindependent of that of his predecessor'

)oncept of good faith

• Good faith or the lac9 of it is a %uestion of intention# but in ascertaining

the intention# the courts are necessarily controlled by the eidence as tothe conduct and outward acts by which alone the inward motie may bedetermined'

• Good faith or the want of it# is not a isible# tangible fact that can be

seen or touched but rather a state or condition of mind which can onlybe ascertained by actual or fancied to9ens or signs'

• /he essence of bona %ides or good faith lies in8

o /he honest belief in the alidity of one’s right#

o ignorance of a superior claim# and

o absence of intention to oerreach another# or to defraud or to

see9 an unconscionable adantage' !also the doctrine of Eeirsof )abal"

• Good faith must rest on a colorable right in the possessor beyond a

mere stubborn belief in one’s title'

• >ne is considered a possessor in good faith if he is not aware that there

exists in his title or mode of ac%uisition any flaw which inalidates it'

• 6asically# it’s honesty of intention and absence of malice'

)oncept of bad faith

•

4t is the opposite of good faith'• 4t imputes a dishonest purpose to do wrong or cause damage'

• 4t contemplates a state of mind affirmatiely operating with furtie design

or some motie of self7interest of ill7will for ulterior purposes'

Mista9e upon a doubtful or difficult %uestion of law

• /he phrase 0mista9e upon a doubtful or difficult %uestion of law1 refers

to the honest error in the application of the law or interpretation ofdoubtful or conflicting legal proisions or doctrines'

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PROPERTY NOTES

• 4t is different from 0ignorance of the law'1

• Manresa says that gross and inexcusable ignorance of the law may not

be the basis of good faith# but excusable ignorance may be such basis if it is based upon ignorance'

• Dean )apistrano says that excusable ignorance as a basis of good faith

was rejected by the )ode )ommission'

)ase doctrines

• /he possessor with a /orrens /itle who is not aware of any flaw in his

title which inalidates it is considered a possessor in good faith and hispossession does not lose this character except in the case and from themoment his /orrens /itle is declared null and oid by final judgment ofthe )ourts' !Dion $odrigue"

• /he defense of haing purchased the property in good faith may be

aailed of only where registered land is inoled and the buyer hadrelied in good faith on the clear title of the registered owner' !Daclag Macahilig"

Art *)2 >oo$ "aith is always #res,me$+ an$ ,#on him who allege$ a$"aith on the #art o" a #ossessor rests the ,r$en o" #roo"&

3resumption of good faith

• /his article establishes the presumption of good faith5 it does not say

that good faith exists# but that it is presumed'

• /he presumption is just because possession is the outward sign of

ownership' 4t is to be presumed that the right of the possessor is well7founded'

• .ery person is presumed to be honest until the contrary is shown'

• 6ut note that for the purposes of prescription# just title must be proed5 it

is neer presumed'

Art *)5 Possession ac6,ire$ in goo$ "aith $oes not lose this charactere/ce#t in the case an$ "rom the moment "acts e/ist which show thatthe #ossessor is not ,naware that he #ossesses the thing im#ro#erlyor wrong",lly&

)essation of good faith during possession

• 3ossession which begins in good faith is presumed to continue in good

faith until the possessor ac%uires 9nowledge of facts showing a defector wea9ness in his title'

• /he law spea9s of 0facts1 in place of the word 0acts1# the former being

broader than the latter' /hus# it is immaterial whether the 0facts1 f romwhich bad faith can be deduced inole acts of the possessor himself or of some other person or any extraneous eidence' 6ut the existence ofthe facts mentioned in the article must be proed'

• 6ad faith begins or good faith is interrupted from the time the possessor

becomes aware 0that the he possesses the thing improperly orwrongfully#1 not f rom the time possession was ac%uired'

• 4n the absence of other facts showing the possessor’s 9nowledge of

defect in his title# good faith is interrupted from the receipt or serice of judicial summons'

o Brom the serice of judicial summons# there exists an act which

the possessor 9nows that his right is not secure# that someonedisputes it# and that he may yet lose it5 and if the court ordersthat restitution be made# that time determines all the legal

conse%uences of the interruption# the time when thepossession in good faith ceases to be so before the law'

o /he filing of a case alleging bad faith on the part of a endee

gies cause or cessation of good faith'

)ase doctrines

• When a contract of sale is oid# the possessor is entitled to 9eep the

fruits during the period for which it held the property in good faith# whichgood faith ceases when an action to recoer possession of the propertyis filed against him and he is sered summons therefor' !D63 )A"

Art *)7 It is #res,me$ that #ossession contin,es to e en!oye$ in thesame character in which it was ac6,ire$+ ,ntil the contrary is #ro'en&

)ontinuity of the character of the possession

• /he character or possession !good faith or bad faith" is presumed to

continue until the contrary is proed

• <o one can# by his sole will nor by the mere lapse of time# change the

cause of his possession'

3resumption on the continuance of possession

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PROPERTY NOTES

• /here are other presumption aside from Articles C*I and C*K affecting

possession# namely8&' (ninterrupted possession of hereditary property !Art C--"*' 3ossession with just title !Art C&"-' 3ossession of moables with real property !Art C*"

' .xclusie possession of common property !Art C-"C' )ontinuous possession !Art C"H' (ninterrupted possession !Art CH&"# andI' 3ossession during interening period !Art &&-"

)ase doctrines

• 3ossession# to constitute the foundation of a prescriptie right# must be

possession under a claim of title# that is# it must be aderse' !6ogo7Medellin )A"

• An ac9nowledgment of the easement is an admission that the property

belongs to another' 4t gies the holder of the easement an incorporealinterest on the land but grants no title thereto' !6ogo )A"

• Mere material possession of land is not aderse possession as against

the owner and is insufficient to est title# unless such possession isaccompanied by the intent to possess as an owner' !6ogo )A"

Art *.9 Only things an$ rights which are s,sce#tile o" einga##ro#riate$ may e the o!ect o" #ossession&

>bject of possession

• /o be the object of possession# the thing or right must be susceptible of

being appropriated'

• /here are more things susceptible of appropriation than there are things

within the commerce of men !i'e' those that can be ac%uired byprescription"'

o With respect to res nullius !property without owner"# they canbe possessed because theya re capable of being appropriatedbut hey cannot be ac%uired by prescription which presupposesprior ownership in another' Bor as long as a thing is res nullius#it is not within the commerce of men'

o 3roperty of public dominion cannot also be the object of

prescription' /he same is true of common things but both maybe the object of possession'

:;APTER )A:FCISITION O3 POSSESSION

Art& *.1& Possession is ac6,ire$ y the material occ,#ation o" a thingor the e/ercise o" a right+ or y the "act that it is s,!ect to the action o" o,r will+ or y the #ro#er acts an$ legal "ormalities estalishe$ "orac6,iring s,ch right& H4.5a

Ways of ac%uiring possession

• /o be considered in possession# one need not hae actual or physical

occupation of a thing all times' /here are three ways of ac%uiringpossession# namely8&' 6y the material occupation or exercise of a right5*' 6y the subjection of the thing or right to our will5 and-' 6y proper acts and legal formalities established for ac%uiring such

right of possession'

•

/he modes of ac%uiring ownership can be seen in Article I&*'

Material occupation or exercise of right&' With respect to things 2 the law re%uires material occupation as one of

the modes of ac%uiring possession'*' With respect to rights 2 since rights are intangible and cannot logically

be occupied# what is ac%uired is the exercise of a right' Bor example#possession of a seritude of way# which is a right# is ac%uired by theexercise of the right !by passing oer the serient land"

Material occupation by deliery

• /he material occupation of a thing as a means of ac%uiring possession

may ta9e place by actual or constructie deliery' )onstructie delieryincludes81& >radicion brevi manu which ta9es place when one already in

possession of a thing by a title other than ownership continues topossess the same under a new title# that of ownership'

)& >radicion constitutum possessorium which happens when theowner continues in possession of the property alienated not asowner but in some other capacity# such as that of lessee# pledgee#or depositary'

ubject of the action of will

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PROPERTY NOTES

• /he second method of ac%uisition is so broad in scope that it practically

coers all means of ac%uiring possession'

• What the law contemplates is a distinct cause of ac%uiring possession

and not merely an effect'

• 4t refers more to the right of possession than to possession as a fact'

• .xamples of which are these 9inds of constructie deliery8

&' >radicion longa manu# which is effected by the mere consent oragreement of the parties# as when the endor merely points to thething sold

*' >radicion simbolica# which is effected by deliering an object suchas a 9ey where the thing sold is stored or 9ept

3roper acts and legal formalities

• /his last method of ac%uiring possession refers to ac%uisition by irtue

of a just title such as when property is transmitted by succession#donation# contract# or execution of a public instrument# or whenpossession is gien by the sheriff to the highest bidder at a publicauction# or pursuant to a writ of execution'

• (nless there is a stipulation to the contrary# the execution of a sale thru

a public instrument shall be e%uialent to the deliery of the thing' 6utthere is no deliery notwithstanding the execution of the instrument#where the purchaser cannot hae the enjoyment and ma9e use of thething sold because such enjoyment and use are opposed or preentedby another'

• (nder Article C-# possession as a fact cannot be recognied at the

same time in two different personalities except in the cases of co7possession

• A sale with pacto de retro transfers the legal title to the endee# and in

the absence of an agreement to the contrary# carries with it the right tothe possession of the property sold'

)ase doctrines• 3ossession alone is not sufficient to ac%uire title to alienable lands of

the public domain because the law re%uires possession A<Doccupation'

• 3ossession is broader than occupation because it includes constructie

possession' When the lad adds the word occupation# it see9s to delimitthe all encompassing effect of constructie possession' >ne’spossession must not be a mere fiction' Acutla possession of a landconsists in the manifestation of acts of dominion oer it of such a nature

as a party would naturally exercise oer his own property' !>ng $epublic"

• 3ossession cannot be ac%uired through force or iolence' /o all intents

and purposes# a possessor# een if physically ousted# is still deemed thelegal possessor' !)e%uena 6olante"

Art& *.)& Possession may e ac6,ire$ y the same #erson who is toen!oy it+ y his legal re#resentati'e+ y his agent+ or y any #ersonwitho,t any #ower whate'er% ,t in the last case+ the #ossession shallnot e consi$ere$ as ac6,ire$ ,ntil the #erson in whose name the acto" #ossession was e/ec,te$ has rati"ie$ the same+ witho,t #re!,$ice tothe !,ri$ical conse6,ences o" negotior,m gestio in a #ro#er case&H4.7a

6y whom possession ac%uired

• 3ossession may be ac%uired8

&' 3ersonally or by the same person who is to enjoy it5*' /hru an authoried person or by his legal representatie or by his

agent# and-' /hru an unauthoried person or by any person without any power

or authority whateer'

Ac%uisition of possession through another

• 3ossession ac%uired by a person personally or thru another may be

exercised by him in his own name or in that of another' 6ut minors andother incapacitated persons need the assistance of their legalrepresentaties to exercise the rights arising from possession'

• 4f a person authoried to ac%uired possession for another acted beyond

his powers# the principal is not bound unless the latter ratifies the act ofac%uisition'

• /he exception is when a person oluntarily manages the property or

business of another' 4n such case# the stranger’s !gestor’s" possessionta9es effect een without ratification by the owner of the property orbusiness'

)ase doctrines

Art& *..& The #ossession o" here$itary #ro#erty is $eeme$ transmitte$to the heir witho,t interr,#tion an$ "rom the moment o" the $eath o" the$ece$ent+ in case the inheritance is acce#te$&

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PROPERTY NOTES

One who 'ali$ly reno,nces an inheritance is $eeme$ ne'er toha'e #ossesse$ the same& H449

Ac%uisition of possession through succession

• /he rights to the succession are transmitted from the moment of the

death of the decedent'• Brom that moment# each of his heirs becomes the undiided owner of

the whole estate left with respect to that portion which might beadjudicated to him'

• /he inheritance may be accepted or repudiated'

• /here is no doubt that an heir can sell whateer right# interest or

participation he may hae in the property under administration# subjectto the result of said administration'

• 4n case the inheritance is accepted# the possession of the hereditary

property is deemed transmitted by operation of law to the heir withoutinterruption and from the moment of death of the decedent'

• 4n this inheritance is alidly renounced# the heir is deemed neer to

hae possessed the same'

• ee boo9 for examples'

Art& *.4& On who s,ccee$s y here$itary title shall not s,""er theconse6,ences o" the wrong",l #ossession o" the $ece$ent+ i" it is notshown that he was aware o" the "laws a""ecting it( ,t the e""ects o"#ossession in goo$ "aith shall not ene"it him e/ce#t "rom the $ate o"the $eath o" the $ece$ent& H44)

.ffects of bad faith of decedent on heir

• 4f the decedent was in bad faith# the heir shall not suffer the

conse%uences of the wrongful possession of the latter because bad faithis personal to the decedent and is not deemed transmitted to the heirs'

• /he heir suffers the conse%uences of such possession only from the

moment he becomes aware of the flaws affecting the decedent’s title'

• ee boo9 again for examples'

)ase doctrines

• A possessor in bad faith should not prejudice his successors7in7interest'

6ad faith is personal and intransmissible' !.scritor 4A)"Art& *.*& Minors an$ inca#acitate$ #ersons may ac6,ire the#ossession o" things( ,t they nee$ the assistance o" their legal

re#resentati'es in or$er to e/ercise the rights which "rom the#ossession arise in their "a'or& H44.

Ac%uisition and exercise of rights of possession by minors and incapacitatedpersons

• /he persons referred to in the proision are unemancipated minors andother persons who hae no capacity to act li9e spendthrifts# deaf7muteswho cannot read and write# those under ciil interdiction# etc'

• /hings here are limited to corporeal things only'

• /his article refers principally but not exclusiely to material occupation'

• 4ncapacitated persons may ac%uire property or rights by prescription

either personally or through their parents# guardians or legal reps' >ncepossession of a thing is ac%uired by such persons# there is born theright of possession' 4n the exercise of this right# they need theassistance of their legal reps'

Art& *.0& In no case may #ossession e ac6,ire$ thro,gh "orce orintimi$ation as long as there is a #ossessor who o!ects thereto& ;e

who elie'es that he has an action or a right to $e#ri'e another o" thehol$ing o" a thing+ m,st in'o-e the ai$ o" the com#etent co,rt+ i" thehol$er sho,l$ re",se to $eli'er the thing& H441a

$ecourse to the courts

• .ery possessor has a right to be respected in his possession' /he

lawful possessor may use such force as may be reasonably necessaryto repel or preent inasion or usurpation of his property'

• /his article applies to one who beliees himself the owner of real

property' 4f he ta9es justice into his own hands# he is a mere intruder5and he can be compelled to return the property in an action for forcibleentry and must suffer the necessary and natural conse%uences of hislawlessness'

• A party who can proe prior possession# whateer may be the characterof the possession# has the security that entitles him to recoer suchpossession or to remain on the property een against the owner himselfuntil he is lawfully ejected by accion publiciana or accion reivindicatoria/

Art& *.2& Acts merely tolerate$+ an$ those e/ec,te$ clan$estinely an$witho,t the -nowle$ge o" the #ossessor o" a thing+ or y 'iolence+ $onot a""ect #ossession& H444

Mic9ey 4ngles


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PROPERTY NOTES

Acts which do not gie rise to possession

• /he acts mentioned do not affect possession# i'e' the person in

possession does not lose the same nor does the person who results tothem ac%uire it' 4n other words# the true possessor is deemed to haeenjoyed uninterrupted possession'

o Borce or intimidation 2 as long as there is a possessor whoobjects thereto# such as by suit of forcible entry' /he rule doesnot apply if the possessor ma9es no objection# withdraws hisobjection or ta9es no action whatsoeer after initially objectingto the depriation'

o Acts executed clandestinely and without the 9nowledge of the

possessor 2 which mean that the acts are not public andun9nown to the possessor or owner'

o Acts merely tolerated 2 which do not refer to all 9inds of

tolerance on the part of the owner or possessor in iew of theuse of the word merely’5 it means permission# express or tacit#by irtue of which the acts of possession are performed'Eence# it is simply a %uestion of whether permission was gien

or not'• 3ossession of another by mere tolerance is not aderse and no matter

how long continued# cannot ripen to ownership by prescription'

• /he mere silence or failure to ta9e any action will not be construed as

abandonment of rights on the part of the real possessor' 4t is# of course#for the courts to decide whether there has been an abandonment or not'

• 3ossession by tolerance is lawful but becomes illegal when# upon

demand to acate by the legal owner# the possessor refuses to complywith such demand'

Art& *.5& Possession as a "act cannot e recognie$ at the same time intwo $i""erent #ersonalities e/ce#t in the cases o" co#ossession&Sho,l$ a 6,estion arise regar$ing the "act o" #ossession+ the #resent

#ossessor shall e #re"erre$( i" there are two #ossessors+ the onelonger in #ossession( i" the $ates o" the #ossession are the same+ theone who #resents a title( an$ i" all these con$itions are e6,al+ the thingshall e #lace$ in !,$icial $e#osit #en$ing $etermination o" its#ossession or ownershi# thro,gh #ro#er #rocee$ings& H44*

3ossession as a fact at the same time in two different personsalities

• /he word 0personalities1 is not synonymous to 0persons'1 Bor example#

in co7ownership# there are two or more persons# but there is only onepersonality'

• 3ossession as a fact may exist at the same time in two or more distinct

personalities# but as a general rule# the law will recognie only one asthe actual or real possessor'

• /he exception is proided in the cases of co7possession# such as co7

ownership# where the property is possessed at the same time incommon by the co7owners also5 and possession where the property ispossessed at the same time by two persons# one in the concept ofowner and the other# in the concept of holder'

• 4n co7possession# there is no conflict of interests of claims among the

parties'

3reference of possession

• Article C- applies whether the property is real or personal' 4n case a

dispute arises regarding the fact of possession# the order of preferenceis as follows8

&' /he present or actual possessor shall be preferred*' 4f there are two possessors# the longer in possession5-' 4f the dates of possession are the same# the possessor with a title5

i'e' right or document eidencing his right to support hispossession5 and

' 4f all the aboe are e%ual# the fact of possession shall be judiciallydetermined# and in the meantime# the thing shall be placed in judicial deposit'

:;APTER .E33E:TS O3 POSSESSION

Art *.7 E'ery #ossessor has a right to e res#ecte$ in his #ossessionan$ sho,l$ he e $ist,re$ therein he shall e #rotecte$ in or restore$to sai$ #ossession y the means estalishe$ y the laws an$ the R,leso" :o,rt&

A #ossessor $e#ri'e$ o" his #ossession thro,gh "orcile entrymay within ten $ays "rom the "iling o" the com#laint #resent a motion tosec,re "rom the com#etent co,rt+ in the action "or "orcile entry+ a writo" #reliminary man$atory in!,nction to restore him in his #ossession&

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PROPERTY NOTES

The co,rt shall $eci$e the motion within thirty $ays "rom the "il ingthereo"&

$ights of eery possessor

.ery possessor# whether in the concept of owner of in the concept ofholder# is gien the following rights8

&' $ight to be respected in his possession5*' $ight to be protected in or restored to said possession by legal means

should he be disturbed therein5 and-' $ight to secure from a competent court in an action for forcible entry the

proper writ to restore him in his possession !Art *"

• /he mere possession of a thing is sufficient to insure respect to the

possessor while no other person appears to show and proe a betterright'

• /o all intents and purposes# a possessor een if physically ousted as

through force and iolence# is still deemed the legal possessor'

/he fact# howeer# that a person was neer in prior physical possession of aland is of no moment where he has a /orrens /itle oer the property as priorphysical possession is necessary only in forcible entry cases'

$easons for protection&' /o aid criminal law !by presering the peace' >rder is best secured by

protecting a possessor and leaing the true owner to see9 his remedy ina court of law"

*' As part of the law of tort !these rights of action are gien in respect ofthe immediate and present iolation of the rights of the possessorindependently of his rights of property"

-' As part of the law of property !law does not always 9nown that thepossession in %uestion is unlawful' 4t would be unjust to cast on eeryman whose possession is disturbed the burden of proing a flawlesstitle"

$emedies of persons depried of possession !see discussions in Art *"&' forcible entry or unlawful detainer *' accion publiciana-' accion reiindicatoria' replein or manual deliery of personal property

• 4n forcible entry and unlawful detainer cases# subject to some

exceptions# the immediate execution of the judgment in faor of theplaintiff is a matter of right and mandatory'

• )onsidering that the only issue in ejectment is that of rightful

possession# damages that could be recoered are those which theplaintiff could hae sustained as a mere possessor# or those caused bythe loss of the use and occupation of the property# and not the damageswhich he may hae suffered but which hae no direct relation to his lossof material possession'

4ssuance of a writ of preliminary mandatory injunction

• 4n forcible entry actions# the plaintiff must present within ten days from

the filing of the complaint a motion to secure from the competent court#a writ of preliminary mandatory injunction to restore him in hispossession

• 4n unlawful detainer cases where an appeal is ta9en# the motion shall be

filed within ten days from the time the appeal is perfected# if the high

court is satisfied that the lessee’s appeal is friolous or dilatory# or thelessor’s appeal is prima facie meritorious'

• 4n an appeal from a lower court in an ejectment case# the issue of

ownership should not be deled into# for an ejectment action lies eenagainst the owner of a property'

3rior peaceful possession of plaintiff re%uired in forcible entry action

• Where a dispute oer possession arises between two persons# the

person first haing actual possession# as between them# is the one whois entitled to maintain the action for forcible entry'

• /he main issue is possession de %acto# independently of any claim of

ownership or possession de jure that either party may set forth in hispleadings# and an appeal does not operate to change the nature of the

original action• .en a mere applicant of public land who is in occupation and in

peaceful possession thereof can file an action for forcible entry

• ,uestion of ownership is unessential and should be raised by the

defendant in an appropriate actiono @udgment rendered in an action for forcible entry shall not bar

an action between the same parties respecting the title to theland or building

Mic9ey 4ngles


47




PROPERTY NOTES

o /he court has competence to resole the issue of ownership

but only to determine the issue of priority of possession# as itsdecision does not bind the title or affect the ownership of theproperty inoled !any pronouncement on ownership isproisional"

• /he purpose of the law is to protect the person who has actualpossession

• /he plaintiff in an action for forcible entry and detainer cannot succeed

when it appears that# as between himself and the defendant# the latterhad possession antedating his own5 and to ascertain this# it is proper toloo9 on to the situation as it existed before the first act of spoliationoccurred

• :egal right of prior possessor is not an issue

o 4f the plaintiff can proe prior possession# he may recoer

possession een against the owner himself'o 4f he can’t proe prior possession# he has no right of action

een if he should be the owner himself'

• 4n case of controerted right# the law re%uires the parties to presere the

status %uo until one or the other of them sees fit to ino9e the decisionof a court upon the %uestion of possession andLor possession

• A forcible entry or unlawful detainer is not suspended# abated# barred or

affected by actions filed in the $/) which do not inole physical or de%acto possession

)onditions under which action for forcible entry will lie

• Wrongful entrance by one not in possession

o /he trespasser does not hae to institute a state of war' /he

act of going on the property and excluding the lawful possessor therefrom necessarily implies the exertion of force oer theproperty# and this is all that is necessary' (nder the law#entering upon the premises by strategy or stealth is e%ually as

obnoxious as entering by force'o /he words 0by force# intimidation# threat# etc1 include eery

situation or condition under which one person can wrongfullyenter upon real property to exclude another# who has priorpossession therefrom' !6anes case"

• Wrongful exclusion of prior possessor

o /he foundation of the action is really the forcible exclusion of

the original possessor by a person who has entered withoutright'

Art *49 Only the #ossession ac6,ire$ an$ en!oye$ in the conce#t o"owner can ser'e as a title "or ac6,iring $ominion&

3ossession as basis for ac%uiring ownership

3ossession ac%uired and enjoyed in the concept of owner may ripen intoownership by means of prescription'

&' As holder

• )annot be the basis of prescription

• o with possession ac%uired through force or intimidation !Art C-H"#

merely tolerated or which is not public and is un9nown to thepresent possessor !Art C-I"

*' As e%uitable mortgage

• )onstructie possession oer the land cannot ripen into ownership

as it cannot be said to hae been ac%uired and enjoyed in theconcept of owner

-' As claimant under a possessory information title !meh"

' As claimant under a certificate of title• Mere possession cannot defeat the title of a holder of a registered

/orrens title to real property

• 6ut the true owner of the property may be defeated by an innocent

purchaser for alue notwithstanding the fraud employed by theseller !forger" in securing his title

• Generally# a forged deed is a nullity and coneys no title' Eoweer#

there are instances when such a document may become the root of a alid title' As when the certificate of title was already transferredfrom the name of the true owner to the forger# and while it remainedthat way# the land was subse%uently sold to an innocent purchaserfor alue !land titles="

C' As possessor of forest land !not possible="

• Mere tax declarations of ownership do not est or proe ownership of

the property in the declarant nor are een sufficient to sustain a claim for possession oer a land# in the absence of actual possession of thesame'

• /hey are merely an indicum of a claim of ownership

• <eertheless# they are good indicia of possession in the concept of

owner

Mic9ey 4ngles


48




PROPERTY NOTES

• 3ayment of realty tax coupled with actual possession in the concept of

owner is one of the most persuasie and positie indicia# which showsthe will or desire of a person to possess with claim of ownership or toobtain title to the land or property

)ase doctrine• 4n order than an action for recoery of possession may prosper# it is

indispensable that he who brings the action fully proes not only hisownership but also the identity of the property claimed# by describing thelocation# area and boundaries thereof' 4nsufficient identification of theportion of land claimed in absolute ownership cannot ripen intoownership' !erina )aballero"

Art *41 A #ossessor in the conce#t o" owner has in his "a'or the legal#res,m#tion that he #ossesses with a !,st title an$ he cannot eolige$ to show or #ro'e it&

3ossessor in concept of owner presumed with just title

• Just title does not always mean a document or a written instrument• >itle is that upon which ownership is based

• Actual or constructie possession under claim of ownership raises the

disputable presumption of ownership' 4n other words# a possession ispresumed ownership until the contrary is shown'

• A possessor is presumed to hae a just title# and he cannot be obliged

to show or proe it'o $eason? /o protect the owner from inconenience# otherwise#

he will always hae to carry his titles under his arms to showthem to whoeer who wants to see it

• <68 3resumption of just title does not apply in ac%uisitie prescription'

Aderse possessor must proe his just title'

6urden of proing just title• /he onus probandi is on the plaintiff who see9s the recoery of property

• A person who is not# in fact# in possession cannot ac%uire a prescriptie

right to a land by the mere assertion of a right therein' Where thepossessor is really the owner# the fact that a third person %uestions hisright does not impair said right'

• An owner and possessor whose title is true and alid cannot be re%uired

to show that his possession is or has been aderse as against a newclaimant who has neither title nor possession'

What are the different 9inds of title?&' >itulo verdadero y valido or true and alid

• /his is the title presumed in this proision

• ufficient to transfer ownership without need of possessing the

property for the period necessary for ac%uiring title by prescription*' >itulo justo or just title

• Bor the purposes of prescription# there is just t itleJ

o When the aderse claimant came into possession of the

property through one of the modes recognied by law for theac%uisition of ownership or other real rights#

o but the grantor was not the owner or could not transmit any

right

• Bor prescription# just title must be proed# it is neer presumed'

• 4t must be remembered that the burden of proing the status of a

purchaser in good faith lies upon him who asserts that status' 4t isnot sufficient to ino9e the ordinary presumption of good faith# thatis# that eeryone is presumed to hae acted in good faith# since thegood faith that is here essential is integral with the ery status thatmust be established' !Aguirre )A"

-' >itulo colorado or colorable title

• >ne which a person has when he buys a thing in good faith# from

one who is not the owner but whom he beliees to be the owner

• /he just title re%uired for ac%uisitie prescription is titulo Colorado

' >itulo putativo or putatie title

• >ne which a person beliees he has title but in fact he has not

because there was no mode of ac%uiring ownership

• As when one is in possession of a thing in the mista9en belief that it

had been be%ueathed to him

3hat’s the di%%erence between titulo Colorado and titulo verdadero y valido94n Colorado, there is a need for prescription to transfer ownership' 4n trueand alid title# there is no need for prescription# ownership is transferredonce the mode of transfer has been perfected' !6e it by sale# donation#succession# etc"'

)ase doctrine

Mic9ey 4ngles


49




PROPERTY NOTES

• 4n order that a co7owner’s possession may be deemed aderse to the

cestui =ue trusti or the other co7owners# the following elements mustconcur8&' /hat he has perfomrmed une%uiocal acts of repudiation amounting

to an ouster of the beneficiary or the other co7owners

*' /hat such positie acts of repudiation hae been made 9nown tothe beneficiary or the other co7owners

-' /hat the eidence thereon must be clear and conincing !Aguirre )A"

Art *4) The #ossession o" real #ro#erty #res,mes that o" mo'alestherein+ so long as it is not shown or #ro'e$ that they sho,l$ ee/cl,$e$&

3ossession of real property presumed to include moables

• Article C* refers to material possession only of things# not rights

• 3ossession may be in the concept of owner# of holder# in one’s own

name or in another’s# or in good faith or in bad faith

• 4t is normal that moables which are found in an immoable belong to

the possessor of the latter • 4f the building is occupied by the lessee# we can suppose the same with

respect to him because in this case# the possessor is the lessee

• Again# this is a mere presumption'

Art *4. Each one o" the #artici#ants o" a thing #ossesse$ in commonshall e $eeme$ to ha'e e/cl,si'ely #ossesse$ the #art which may eallotte$ to him ,#on the $i'ision thereo"+ "or the entire #erio$ $,ringwhich the co#ossession laste$& Interr,#tion in the #ossession o" thewhole or a #art o" a thing #ossesse$ in common shall e to the#re!,$ice o" all the #ossessors& ;owe'er+ in case o" ci'il interr,#tion+the R,les o" :o,rt shall a##ly&

.xclusie possession of preious co7owner deemed continuous• Article C- spea9s of co7possession of a thing# not of co7ownership

• <eertheless# its principle is applicable to co7possession of a real right

• )o7possession can be oer a thing or a right

• All participants of a thing possessed in common constitute only one

personality and the personality ceases when there is a partition'

• Brom that moment of cessation# the personality of each participant

begins'

• .ach co7possessor is deemed !not merely presumed=" to hae

possessed exclusiely and continuously during the period of co7possession the part assigned to him in the diision'

• /he effects of the diision retroact to the commencement of the co7

possession'

• 6ut the diision shall be without prejudice to the rights of creditors'

Earry# $on# and Eermione hae been co7possessors in the concept ofowners of a &C hectare parcel of land until they diided the property e%uallyon the th year' 4f on the th year after the diision# Draco claims ownership of the portion allotted to Earry# Earry can assert title by ac%uisitie prescriptionthrough possession for &; years# for he is deemed to hae possessed hisportion exclusiely and continuously for a period of &* years'

4nterruption in possession of the thing

• 6oth the benefits and the prejudices that might hae ta9en place during

the co7possession shall attach to each of the co7participants

• 3rescription obtained by a co7possessor shall benefit the others

• 4nterruption in the possession of the whole or part of a thing shall be tothe prejudice of all the possessors'

• 3ossession is interrupted for purposes of prescription either

o <aturally !when through any cause it should cease for more

than & year"o )iilly !when the interruption is produced by judicial summons

to the possessor" 4n ciil interruption# only those possessors sered with

judicial summons are affected' Bor ciil interruption to ta9e place# the possessor must

hae receied judicial summons' When will summons not be deemed to hae been

issued and shall not gie rise to interruption?&' 4f it should be oid for lac9 of legal solemnities# or *' 4f the plaintiff should desist from the complaint or

should all the proceedings to lapse# or -' 4f the possessor should be absoled from the

complaint' A notice for aderse claim does <>/ interrupt

prescription !Eeirs of Aradon7)risologo $anon"

• 4nterruption must refer to the whole thing itself or part of it and not to a

part or right of a co7possessor'

Mic9ey 4ngles


50




PROPERTY NOTES

• 4n a co7possession# there is only one thing and many possessors' 4f the

right of a co7possessor is contested# he alone shall be prejudiced'

• With respect to the thing# the prejudice shall be against all'

Art *44 A #ossessor in goo$ "aith is entitle$ to the "r,its recei'e$

e"ore the #ossession is legally interr,#te$&Nat,ral an$ in$,strial "r,its are consi$ere$ recei'e$ "rom the

time they are gathere$ or se'ere$&:i'il "r,its are $eeme$ to accr,e $aily an$ elong to the

#ossessor in goo$ "aith in that #ro#ortion&

Art *4* I" at the time the goo$ "aith ceases+ there sho,l$ e any nat,ralor in$,strial "r,its+ the #ossessor shall ha'e a right to a #art o" thee/#enses o" c,lti'ation+ an$ to a #art o" the net har'est+ oth in#ro#ortion to the time o" #ossession&

The charges shall e $i'i$e$ on the same asis y the two#ossessors&

The owner o" the thing may+ sho,l$ he so $esire+ gi'e the

#ossessor in goo$ "aith the right to "inish the c,lti'ation an$ gatheringo" the growing "r,its+ as an in$emnity "or his #art o" the e/#enses o"c,lti'ation an$ the net #rocee$s( the #ossessor in goo$ "aith who "orany reason whate'er sho,l$ re",se to acce#t this concession+ shalllose the right to e in$emni"ie$ in any other manner&

• /he fruits of a thing generally belong to the owner !Art &" but a

possessor in good faith is entitled to the fruits receied until good faithceases and bad faith begins'

• :egal interruption of possession in good faith ta9es place upon serice

of judicial summons to the possessor'o All fruits that the possessor may receie from the time that he

is summoned# or when he answers the complaint# must be

deliered or paid by him to the owner or lawful possessor'• Wheneer there is cessation of good faith in the eyes of the law#

whether by reason of the filing of a complaint or not# possession in goodfaith should be deemed legally interrupted from such cessation and notmerely from the serice of judicial summons'

• When the owner or possessor with a better right comes along# when he

becomes aware that what he had ta9en for granted is at least doubtful#and when he learns the grounds in support of the aderse claim# goodfaith ceases'

• 3ossessor in bad faith is not entitled to the fruits' Ee has the duty to

reimburse the fruits receied including that which the legitimatepossessor could hae receied'

• /he right of the possessor in good faith is limited to the fruits# referring

to natural# industrial and ciil fruits !Art &"' >ther things !building"

belong to the owner of the land'

When fruits considered receied&' Bor natural and industrial fruits 2 from the time they are gathered or

seered' Bruits gathered before legal interruption belong to thepossessor in good faith'

*' Bor ciil fruits 2 their accrual# not their actual receipt# shall determinewhen they are considered receied at the time the good faith is legallyinterrupted' /hey are deemed to accrue daily and belong to thepossessor in good faith in that proportion'

Ninds of Bruits 3ossessor in GoodBaith

3ossessor in 6ad Baith

&' )iil fruits .ntitled to fruits fromstart of possessionuntil legal interruption

<ot entitled to fruits'

Must pay damages asrental from timepossession started untilpossession is finallydefeated

*' <aturalL4ndustrialBruits

a' Gathered $ight to retain fruits Must account for fruitsand return alue of8fruits actually receied#and fruits which thelegal possessor couldhae receied with duecare and diligence'

Must pay damages asreasonable rent for theterm of possession'

6ut entitled to

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PROPERTY NOTES

b' 3ending >wner has * options8

Birst8 3ro7rating!based on period ofpossession" betweenpossessor and ownerof8 expenses# netharest and charges

econd8 /o allowpossessor to stay inpossession until after

all fruits are gathered!which shall sere asthe indemnity forexpenses"

necessary expensesfor preseration#cultiation# andgathering of fruits'

<o rights# not eenreimbursement ofexpenses for cultiation!because by right ofaccession# all fruitsbelong to ownerwithout need to payindemnity"

Must pay damages asreasonable rent for theterm of possession

3roportionate diision of fruits and expenses

• Art CC does not apply when the possessor is in bad faith# the fruits are

ciil# or the fruits are natural or industrial but they hae been gathered or seered when good faith ceases

• A possessor in bad faith has no right whatsoeer to the fruits# gathered

or pending# except only necessary expenses for gathered fruit !Art -#K"' ince ciil fruits are produced day by day# Art CC does not applyto them'

• 4n the case of fruits already gathered at the time good faith ceases# it is Art C that is applicable'

• 4f there are pending natural and industrial fruits at the time good faith

ceases# the two possessors shall share in the expense of cultiation andthe charges !expenses made not on the property itself but on account of it# such as taxes# interest on mortgages" in proportion to the time ofpossession'

• /hey will also share on the fruits in proportion to the time of possession

as well'

• What if there are no fruits or the fruits are less than expenses?

o 4f there is no net harest because there are no fruits or the

fruits are less than the expenses# art CC won’t apply' 4f thefruits are merely insufficient# the same should be diided inproportion to their respectie expenses'

o <o fruits? .ach should bear his own expenses subject to theright of the possessor in good faith to be refunded fornecessary expenses under Art CH# unless the owner of newpossessor exercises his option referred to aboe'

Art *40 Necessary e/#enses shall e re",n$e$ to e'ery #ossessor( ,tonly the #ossessor in goo$ "aith may retain the thing ,ntil he hasreim,rse$ there"ore&

Cse",l e/#enses shall e re",n$e$ only to the #ossessor ingoo$ "aith with the same retention+ the #erson who has $e"eate$ him inthe #ossession ha'ing the o#tion o" re",n$ing the amo,nt o" thee/#enses or o" #aying the increase in 'al,e which the thing may ha'eac6,ire$ y reason thereo"&

Art *42 I" the ,se",l im#ro'ements can e remo'e$ witho,t $amage tothe #rinci#al thing+ the #ossessor in goo$ "aith may remo'e them+,nless the #erson who reco'ers the #ossession e/ercises the o#tion,n$er #aragra#h ) o" the #rece$ing article&

Art *45 E/#enses "or #,re l,/,ry or mere #leas,re shall not ere",n$e$ to the #ossessor in goo$ "aith( ,t he may remo'e theornaments with which he has emellishe$ the #rinci#al thing i" its,""ers no in!,ry therey+ an$ i" his s,ccessor in the #ossession $oesnot #re"er to re",n$ the amo,nt e/#en$e$&

Art *47 The #ossessor in a$ "aith shall reim,rse the "r,its recei'e$an$ those which the legitimate #ossessor co,l$ ha'e recei'e$+ an$shall ha'e a right only to the e/#enses mentione$ in #aragra#h 1 o"Article *40 an$ in Article 44.& The e/#enses inc,rre$ in im#ro'ements"or #,re l,/,ry or mere #leas,re shall not e re",n$e$ to the#ossessor in a$ "aith+ ,t he may remo'e the o!ects "or which s,che/#enses ha'e een inc,rre$+ #ro'i$e$ that the thing s,""ers no in!,rytherey+ an$ that the law",l #ossessor $oes not #re"er to retain themy #aying the 'al,e they may ha'e at the time he enters into#ossession&

Mic9ey 4ngles


52

+




PROPERTY NOTES

.xpenses 3ossessor in GoodBaith

3ossessor in 6ad Baith

<ecessary .xpenses .ntitled toreimbursement$ight of retention

pending fullreimbursements

.ntitled toreimbursement<o right of retention5

must acate property!recourse is to filecollection case":iable for damages asreasonable rent forperiod of possession

(seful expenses >wner has * options8

>ption &8reimbursement ofeither !a" amount spentor !b" increase in aluewith right of retention

with full payment'

>ption *8 /o allowpossessor to remoeproided no substantialdamage or injury iscaused

<o rights

:uxurious expenses >wner has * options8

>ption &8 to allowpossessor to remoeornaments if theprincipal suffers noinjury

>ption *8 to retain theornament by refundingthe amount spent forthe ornament

>wner has * options8

>ption &8 to allowpossessor to remoeornaments if theprincipal suffers noinjury

>ption *8 to retain theornament by refundingthe alue of theornament at the timeowner enters intopossession !whichmeans depreciatedalue"

DeteriorationLloss <o liabil ity unless dueto fraudulent intent ornegligence afterserice of judicialsummons

Always liable whetherbefore or after sericeof judicial summons#for any cause# eenfortuitous eent'

• <ecessary expenses are made for the preseration of the thing of those

which see9 to preent the waste# deterioration# or loss of the thing5 orthose without which the thing would deteriorate or be lost'

• (seful expenses are expenses which add alue to a thing# or augment

its income'

• :uxurious expenses are expenses not necessary for the preseration of

a thing nor do they increase its productiity although they add alue tothe thing# but are incurred merely to embellish the thing and for theconenience or enjoyment of particular possessors'

)ase doctrine• A possessor in bad faith is entitled to be reimbursed for her expenses in

restoring a house to its original condition after it had been partlydamaged by fire# because such expenses are necessary# and underCH# are to be refunded een to possessors in bad faith'

• A builder in bad faith# under K# is not entitled to reimbursement' 6ut

K is a rule of accession# which is not applicable where a new housewas not built on the land of another but only repairs were made on ahouse that had been partly destroyed by fire' /his latter case comesunder CH which proides for the refund of necessary expenses to eerypossessor' !)osio 3alileo"

Art& **9& The costs o" litigation o'er the #ro#erty shall e orne y

e'ery #ossessor& Hn

Art& **1& Im#ro'ements ca,se$ y nat,re or time shall always ins,re tothe ene"it o" the #erson who has s,ccee$e$ in reco'ering #ossession&H4*0

4mproements caused by nature or time

Mic9ey 4ngles


53



+




PROPERTY NOTES

• /he intention to abandon implies a departure# with the aowed intent of

neer returning# resuming or claiming the right and the interest that haebeen abandoned' !)astellano Brancisco"

Assignment?

• Assignment is understood to mean the complete transmission of thething or right to another by any lawful manner'

• 4t may be onerous or by gratuitous title'

• /he effect is that he who was the owner or possessor is no longer so'

• Abandonment is always gratuitous'

Destruction# total loss# or withdrawal from commerce

• Destruction or total loss coers not only that which is caused oluntarily

or intentionally but also that which is caused by accident'

• A thing is lost when it perishes# or goes out of commerce# or disappears#

etc' !Art &&K"

3ossession of another for more than one year

• /his refers to possession de %acto !as a fact or material possession" and

not de jure !legal right or real right of possession"

• After one year# the former possessor can no longer bring any action for

forcible entry or unlawful detainer'

• 3ossession by mere tolerance een for oer a year does not affect

possession de %acto'

• After &; years# the possessor or owner may bring an accion publiciana

or reivindicatoria to recoer possession de jure unless he is barred byprescription'

$ecoery by lawful owner or possessor

• 3ossession may also be lost when it is recoered from the person in

possession by the lawful owner in a reiindicatory action or by the lawfulpossessor in an action to recoer the better right of possession'

Art& **0& The #ossession o" mo'ales is not $eeme$ lost so long asthey remain ,n$er the control o" the #ossessor+ e'en tho,gh "or thetime eing he may not -now their whereao,ts& H401

:oss of possession of moables

• /he possession of moables shall be deemed lost when they cease to

be under the control of the possessor either becaue8o /hey hae come into the possession of a third person5 or

o Although# they hae not been ta9en by another#

/he possessor has completely no idea of their

whereabouts or location !the pet rat has been missingfor sometime5 or

.en if 9nown# they cannot be recoered# whether as

a matter of fact !an unopened box of pastillas hasbeen dropped in a deep la9e" or of law !a moablelost by prescription"'

• 3ossession is not lost by the mere fact that the possessor does not

9now for the time being the precise whereabout of a specific moablewhen he has not gien up all hope of finding it !li9e a ring misplaced orlost in particular icinity"' 4n this case# the possessor has not lost hislegal right to the object'

o Ee retains his juridical control of the thing which remains in his

patrimony'

Art& **2& The #ossession o" immo'ales an$ o" real rights is not$eeme$ lost+ or trans"erre$ "or #,r#oses o" #rescri#tion to the#re!,$ice o" thir$ #ersons+ e/ce#t in accor$ance with the #ro'isions o"the Mortgage Law an$ the Lan$ Registration laws& H40)a

:oss of possession of immoables and real rights with respect to thirdpersons

• /hird persons are not prejudiced except in accordance with the

proisions of the mortgage law and the registration law'

• Against a recorded title# ordinary prescription of ownership or real rights

shall not ta9e place to the prejudice of a third person# except in irtue ofanother title also recorded and the time shall begin to run from the

recording of the latter'

Art& **5& Acts relating to #ossession+ e/ec,te$ or agree$ to y one who#ossesses a thing elonging to another as a mere hol$er to en!oy or-ee# it+ in any character+ $o not in$ or #re!,$ice the owner+ ,nless hega'e sai$ hol$er e/#ress a,thority to $o s,ch acts+ or rati"ies thems,se6,ently& H40.

3ossessory acts of a mere holder

Mic9ey 4ngles


55

+




PROPERTY NOTES

• /he possessor referred to in this article is the same possessor

mentioned in Article C*C'

• Acts relating to possession of a mere holder do not bind or prejudice the

possessor in the concept of owner unless said acts were preiouslyauthoried or subse%uently ratified by the latter'

• 3ossession may be ac%uired for another by a stranger proided therebe subse%uent ratification' !Art C-*"

Art& **7& The #ossession o" mo'ale #ro#erty ac6,ire$ in goo$ "aith ise6,i'alent to a title& Ne'ertheless+ one who has lost any mo'ale orhas een ,nlaw",lly $e#ri'e$ thereo" may reco'er it "rom the #erson in#ossession o" the same&

I" the #ossessor o" a mo'ale lost or which the owner haseen ,nlaw",lly $e#ri'e$+ has ac6,ire$ it in goo$ "aith at a #,lic sale+the owner cannot otain its ret,rn witho,t reim,rsing the #rice #ai$there"or& H404a

$ight of possessor who ac%uires moable claimed by another

• 4f the possession of a moable property who ac%uired in bad faith# noright thereto is ac%uired by the possessor' /he property may berecoered by the true owner or possessor without reimbursement'

• 4f the ac%uisition was in good faith# here are the rules8

o 3ossession in good faith of a moable is presumed ownership' 4t is

e%uialent to title' /his is 9nown as the doctrine of irrreindicability'<o further proof is necessary'

o /he possessor’s title# howeer# is not absolute' 4t is e%uialent to

title but is not t itle itself' 4t is merely presumptie because it can bedefeated by the true owner'

• /hese are the two exceptions to the general rule of irreindicability' An

owner can recoer in these two instances8&' When one has lost the moable# or

*' When one has been unlawfully depried'• Ee may recoer without reimbursement' 6ut if the thing was

sold at a public sale# the owner must reimburse the buyer'

• /hese are the exceptions to the exceptions' .en when an owner has

lost or has been unlawfully depried# he still cannot recoer in theseinstances8

&' When the sale is made at merchant’s stores# fairs or mar9ets'*' When the owner of the moable is# by his conduct# precluded

from denying the seller’s authority to sell5

-' Where the law enables the apparent owner to dispose of themoables as if he were the true owner thereof

' Where the sale is sanctioned by statutory or judicial authorityC' Where the seller has a oidable title which has not been

aoided at the time of the sale to the buyer in good faith for

alue and without notice of the seller’s defect of title!remember ):F="

H' Where recoery is no longer possible because of prescriptionI' Where the possessor becomes the owner of the thing in

accordance with the principle of f inder’s 9eepers

)ase doctrines

• <on7payment does not oid a sale' 4t is perfected upon the meeting of

the minds' Eence# ownership shall pass from the endor to the endeeupon the actual or constructie deliery of the thing sold' 4t does notconstitute unlawful depriation of personal property' 4t is a mere oidablesale# and unless it is aoided before the execution of the second sale#then the second sale is alid' !.D)A antos"

•

3urchaser in good faith of a chattel or moable property is entitled to berespected and protected in his possession as if he were the true ownerthereof until a competent court rules otherwise' 4n the meantime# as thetrue owner# the possessor in good faith cannot be compelled tosurrender possession nor to be re%uired to institute an action for therecoery of the chattel' !.du Gome"

• A third party who ac%uired in good faith a stolen ehicle and registered it

in his own name cannot lawfully refuse to return it to the true owner andinsist upon reimbursement before deliery' !Anar apdiangco 2stealing e=uals unlaw%ul deprivation"

• /he owner of a ring pledged to a pawnshop by one to whom he has

entrusted it to be sold on commission can recoer it from the pawnshop'!Dion untay"

Art& *09& <il$ animals are #ossesse$ only while they are ,n$er oneJscontrol( $omesticate$ or tame$ animals are consi$ere$ $omestic ortame i" they retain the hait o" ret,rning to the #remises o" the#ossessor& H40*

3ossession of animals

• Animals may be8

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&' Wild or animals liing in a state of nature independently of andwithout the aid and care of man !great white shar9# ornatewobbegong# brailian slug"

*' Domesticated or tamed# or animals which are wild or saage bynature but hae been subdued and made use of by man and

become accustomed to lie in a tamed condition !tiger ni )hait"-' Domestic or tame# or any of the arious animals which lie and are

born and reared# under the control and care of man# lac9ing theinstinct to roam freely !dog# cat# carabao# cow"

• Wild animals may be the object of hunting' /hey are possessed only if

they are under one’s control' 3ossession of wild animals are lost whenthey regain their freedom or come under another’s control'

• Domesticated animals are possessed if they habitually return to the

premises of the possessor'

Art& *01& One who reco'ers+ accor$ing to law+ #ossession ,n!,stly lost+shall e $eeme$ "or all #,r#oses which may re$o,n$ to his ene"it+ toha'e en!oye$ it witho,t interr,#tion& H400

• /his article applies to both possession in good faith as well as to

possession in bad faith# but only if beneficial to the possessor !li9e forpurposes of prescription"

• /he recoery of possession must be according to law 2 through legal

means5 otherwise# the benefit of continuous and uninterruptedpossession during the interening period cannot be ino9ed'

TITLE VI CSC3RC:T:;APTER ONE% CSC3RC:T IN >ENERAL

Art& *0)& Cs,"r,ct gi'es a right to en!oy the #ro#erty o" another with theoligation o" #reser'ing its "orm an$ s,stance+ ,nless the title

constit,ting it or the law otherwise #ro'i$es& H402

What is usufruct?./ A right to enjoy the property of another with the obligation of presering

its form and substance0/ $ight to enjoy the property of another temporarily# including both the jus

utendi and jus %ruendi # with the owner retaining the jus disponendi4/ 4n essence# usufruct is nothing else but simply allowing one to enjoy

another’s propery

What are the characteristics of usufruct?&' 4t is a real right of use and enjoyment# !whether registered or not in the

$egistry of 3roperty' $egistering will affect and bind third persons"*' >f /emporary duration5

-' /ransmissible5 and' May be constituted on real or personal property# consumable or non7

consumable# tangible or intangible# the ownership of which is ested inanother

• A person cannot create a usufruct oer his own property and at the

same time retain ownership of the same

• A usufruct is essentially jus in re aliena# and to be a usufructuary of

one’s own property is in law a contradiction in terms and a conceptualabsurdity

• /he essential re%uisite of usufruct is the right to enjoy the property of

another

• /he usufructuary is entitled to all the fruits of the property with the

obligation to presere its form and substance• Eoweer# the obligation of the usufructuary to presere is only

accidental for the law or the will of the parties may modify or eeneliminate it

• /wo classifications based on whether or not impairment of object is

allowed8&' <ormal# perfect or regular 2 inoles non7consumable things

which the usufructuary can enjoy without altering the form orsubstance# through they may detoriorate or diminish by time or byuse

*' Abnormal# imperfect# irregular or %uasi7usufruct 2 inoles thingswhich would be useless to the usufructuary unless they areconsumed or expended# such as money# grain# li%uors# etc

(sufruct :ease<ature of right $eal 3ersonal

)reator of right >wner of agent May not be the owner

>rigin May be by law# bycontract# by will oftestator# or byprescription

6y contract

.xtent of enjoyment All the fruits and all the )ertain uses only

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uses and benefits of theentire property!generally"

!those stipulated"

)ause More or less passieowner who allows the

usufructuary to enjoythe object

Actie owner or lessorwho ma9es the lessee

enjoy

$epairs and taxes (sufructuary to pay :essee not generallyunder the obligation topay taxes or underta9erepairs

Art& *0.& Cs,"r,ct is constit,te$ y law+ y the will o" #ri'ate #ersonse/#resse$ in acts inter 'i'os or in a last will an$ testament+ an$ y#rescri#tion& H405)reation of usufruct

(sufruct may e classified according to how it is created into8&' :egal# or that created or declared by law*' Foluntary# or that created by will of the parties !an act inter ios or an

act mortis causa"-' Mixed or that ac%uired by prescription

Art& *04& Cs,"r,ct may e constit,te$ on the whole or a #art o" the"r,its o" the thing+ in "a'or o" one more #ersons+ sim,ltaneo,sly ors,ccessi'ely+ an$ in e'ery case "rom or to a certain $ay+ #,rely orcon$itionally& It may also e constit,te$ on a right+ #ro'i$e$ it is notstrictly #ersonal or intransmissile& H407

Ninds of usufruct defined(sufruct may be

&' As to extent of objecta' /otal !constituted on the whole of a thing"b' 3artial !constituted only on a part of a thing"

*' As to number of beneficiariesa' imple !only one"b' Multiple !seeral usufructuaries"

i' imultaneous# or i i' uccessie

-' As to effectiity or extinguishment

a' 3ureb' With a term !may be suspensie or resolutory"c' )onditional !may be suspensie or resolutory"

' As to subject matter a' >er things !tangible property"

b' >er rights !intangible property which are notintransmissible"

Art& *0*& The rights an$ oligations o" the ,s,"r,ct,ary shall e those#ro'i$e$ in the title constit,ting the ,s,"r,ct( in $e"a,lt o" s,ch ti tle+ or in case it is $e"icient+ the #ro'isions containe$ in the two "ollowing:ha#ters shall e oser'e$& H429

• 4n case of conflict between the will of the person creating the usufruct

and the )iil code# the former preails'

:;APTER T<ORI>;TS O3 T;E CSC3RC:TCARY

Art& *00& The ,s,"r,ct,ary shall e entitle$ to all the nat,ral+ in$,strialan$ ci'il "r,its o" the #ro#erty in ,s,"r,ct& <ith res#ect to hi$$entreas,re which may e "o,n$ on the lan$ or tenement+ he shall econsi$ere$ a stranger& H421

)lassifications of the rights of the usufructuary&' As to the thing and its fruits

a' /o receie the fruits of the property in usufruct and half ofthe hidden treasure he accidentally finds on the property

b' /o enjoy any increase which the thing in usufruct mayac%uire through accession

c' /o personally enjoy the thing in usufruct or lease it toanother

d' /o ma9e on the property in usufruct such improements or expenses he may deem property and to remoe theimproements proided no damage is caused to theproperty

e' /o set7off the improements he may hae made on theproperty against any damage to the same

f' /o retain the thing until he is reimbursed for adances forextraordinary expenses and taxes on the capital

*' As to the usufruct itself

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a' /o alienate !or mortgage" the right of usufruct exceptparental usufruct

b' 4n a usufruct to recoer property or a real right# to bring theaction and to oblige the owner thereof to gie him properauthority and necessary proof# and

c' 4n a usufruct of part of a common property# to exercise allthe rights pertaining to the co7owner with respect to theadministration and collection of fruits or interests from theproperty

-' As to adances and damagesa' /o be reimbursed for indispensable extraordinary repairs

made by him in an amount e%ual to the increase in aluewhich the property may hae ac%uired by reason of suchrepairs

b' /o be reimbursed for taxes on the capital adanced byhim# and

c' /o be indemnified for damages caused to him by thena9ed owner'

• /he usufructuary is gien the right to enjoy the property in usufruct and

he is entitled to the f ruits' /he usufructuary has the right to receie allthe fruits except8

a' where the usufruct is constituted only on a part of the fruitsof a thing or

b' where there is an agreement to the contrary'

• /he na9ed owner retains and can exercise all the rights as owner oer

the property limited only by the right of enjoyment of the usufructuary'

• 3roducts which when ta9en from the property diminishes its substance

are not to be treated as fruits' /hey form part of the capital and belongto the na9ed owner# and not to the usufructuary in the absence of acontrary intent between the parties'

• /he usufructuary is not entitled to any hidden treasure because it’s not

considered as fruits’' Eoweer# as a stranger# he is entitled to P if he isthe finder'

Art& *02& Nat,ral or in$,strial "r,its growing at the time the ,s,"r,ctegins+ elong to the ,s,"r,ct,ary&

Those growing at the time the ,s,"r,ct terminates+ elong tothe owner&

In the #rece$ing cases+ the ,s,"r,ct,ary+ at the eginning o"the ,s,"r,ct+ has no oligation to re",n$ to the owner any e/#enses

inc,rre$( ,t the owner shall e olige$ to reim,rse at the terminationo" the ,s,"r,ct+ "rom the #rocee$s o" the growing "r,its+ the or$inarye/#enses o" c,lti'ation+ "or see$+ an$ other similar e/#enses inc,rre$y the ,s,"r,ct,ary&

The #ro'isions o" this article shall not #re!,$ice the rights o"

thir$ #ersons+ ac6,ire$ either at the eginning or at the termination o"the ,s,"r,ct& H42)

$ight of the usufructuary to pending natural and industrial fruits/his article does not apply to ciil fruits'

• Bor fruits growing at the beginning of usufruct# they belong to the

usufructuary who is not bound to refund to the owner the expenses ofcultiation and production incurred'

o Eoweer# in case the expenses were incurred by innocent third

persons# the usufructuary under Art -# pursuant to the lastparagraph of Art CHI# has the obligation to pay the expensesmade'

•

Bor fruits growing at the termination of the usufruct# they belong to theowner but he is bound to reimburse the usufructuary the ordinarycultiation expenses out of the fruits receied'

• Manresa opines that if at the termination of the usufruct# force majeure

should preent the usufructuary from gathering the fruits# said fruits shallbelong to him and not the na9ed owner'

Art& *05& I" the ,s,"r,ct,ary has lease$ the lan$s or tenements gi'en in,s,"r,ct+ an$ the ,s,"r,ct sho,l$ e/#ire e"ore the termination o" thelease+ he or his heirs an$ s,ccessors shall recei'e only the#ro#ortionate share o" the rent that m,st e #ai$ y the lessee& H42.

Art& *07& :i'il "r,its are $eeme$ to accr,e $aily+ an$ elong to the,s,"r,ct,ary in #ro#ortion to the time the ,s,"r,ct may last& H424

:ease by the usufrucutary

• /he usufructuary may lease the property in usufruct to another'

• 4f the usufrcut should expire before the termination of the lease# the

usufructuary or his heirs and successors are entitled only to the rentscorresponding to the duration of the usufruct' /he rents for theremaining period of the lease belong to the owner'

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Art& *29& <hene'er a ,s,"r,ct is constit,te$ on the right to recei'e arent or #erio$ical #ension+ whether in money or in "r,its+ or in theinterest on on$s or sec,rities #ayale to earer+ each #ayment $,eshall e consi$ere$ as the #rocee$s or "r,its o" s,ch right&

<hene'er it consists in the en!oyment o" ene"its accr,ing

"rom a #artici#ation in any in$,strial or commercial enter#rise+ the $ateo" the $istri,tion o" which is not "i/e$+ s,ch ene"its shall ha'e thesame character&

In either case they shall e $istri,te$ as ci'il "r,its+ an$ shalle a##lie$ in the manner #rescrie$ in the #rece$ing article& H42*

(sufruct constituted on certain rights

• .ery benefit or payment shall be considered and distributed as ciil

fruit of such right'

• 3ayment and benefits that accrue after the termination of the usufruct

belong to the owner'

• /he date when the benefits accrue determines whether they should

belong to the usufructuary or to the owner' Art CI; applies whether or

not the date of distribution of benefits is fixed'

)ase doctrine

• A stoc9 diidend is considered ciil fruit and belongs to the usufructuary'

!6achrach eifert"

Art& *21& The ,s,"r,ct,ary shall ha'e the right to en!oy any increasewhich the thing in ,s,"r,ct may ac6,ire thro,gh accession+ theser'it,$es estalishe$ in its "a'or+ an$+ in general+ all the ene"itsinherent therein& H427

.xtent of rights of usufructuary

•

/he usufructuary is generally entitled to all the benefits that the thing inusufruct can gie including any increase by accession and seritudesestablished in his faor'

• $eason is that usufruct coers the entire jus %ruendi and jus utendi/

Art& *2)& The ,s,"r,ct,ary may #ersonally en!oy the thing in ,s,"r,ct+lease it to another+ or alienate his right o" ,s,"r,ct+ e'en y agrat,ito,s title( ,t all the contracts he may enter into as s,ch

,s,"r,ct,ary shall terminate ,#on the e/#iration o" the ,s,"r,ct+ sa'ingleases o" r,ral lan$s+ which shall e consi$ere$ as s,sisting $,ringthe agric,lt,ral year& H459

/ransactions by the usufructuary

• with respect to the thing in usufruct# he may lease it een without theowner’s consent but not being the owner# the usufructuary cannotalienate# pledge or mortgage the thing itself' Ee may sell future cropssubject to the rule that those ungathered at the time when the usufructterminates belong to the owner'

• when the things gien in usufruct cannot be used without being

consumed or were appraised when deliered# the usufructuary maydispose of them'

• With respect to the right of usufruct# since the usufructuary is the owner

of the right itselt# he may alienate# pledge or mortgage it# een bygratuitous title'

o 6ut the legal usufruct of the parent oer his or her

unemancipated children cannot be alienated# pledged# or

mortgaged for the right is personal and intransmissibleburdened as it is by important obligations of the parent for thebenefit of the children'

o A usufruct gien in consideration of the person of the

usufructuary to last during his lifetime is also personal# andtherefore# intransmissible'

o As a rule# all contracts entered into by the usufructuary shall

terminate upon the expiration of the usufruct or earlier# exceptrural leases which continue during the agricultural year'

)ase doctrine

• A usufructuary of rents# as a corollary to the right to all the rents# to

choose the tenant# and to f ix the amount of the rent# necessarily has the

right to choose himself as the tenant# proided that the obligations hehas assumed towards the owner of the property are fulfilled' !Babie Daid"

Art& *2.& <hene'er the ,s,"r,ct incl,$es things which+ witho,t eingcons,me$+ gra$,ally $eteriorate thro,gh wear an$ tear+ the,s,"r,ct,ary shall ha'e the right to ma-e ,se thereo" in accor$ancewith the #,r#ose "or which they are inten$e$+ an$ shall not e olige$to ret,rn them at the termination o" the ,s,"r,ct e/ce#t in their

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con$ition at that time( ,t he shall e olige$ to in$emni"y the owner"or any $eterioration they may ha'e s,""ere$ y reason o" his "ra,$ ornegligence& H451

(sufruct on things which gradually deteriorate

• /his article gies an instance of abnormal usufruct because in theenjoyment of the property the usufructuary cannot presere its form orsubstance'

• Eere the thing gradually deteriorates through wear and tear or normal

use'

• /he usufructuary is not responsible for the deterioration due to wear and

tear nor is he re%uired to ma9e any repairs to restore it to its formalcondition' Ee needs only to return the thing at the termination of theusufruct in the condition it may be at that time'

• /he usufructuary is liable for damage suffered by the thing by reason of

his fraud or negligence although such liability may be set7off against theimproements he may hae made on the property'

• /he usufructuary does not answer for deterioration due to a fortuitous

eent' Ee is# howeer# obligated to ma9e the ordinary repairs needed bythe thing'

Art& *24& <hene'er the ,s,"r,ct incl,$es things which cannot e ,se$witho,t eing cons,me$+ the ,s,"r,ct,ary shall ha'e the right to ma-e,se o" them ,n$er the oligation o" #aying their a##raise$ 'al,e at thetermination o" the ,s,"r,ct+ i" they were a##raise$ when $eli'ere$& Incase they were not a##raise$+ he shall ha'e the right to ret,rn at thesame 6,antity an$ 6,ality+ or #ay their c,rrent #rice at the time the,s,"r,ct ceases& H45)

(sufruct on consumable things

• /his is another instance of abnormal usufruct because the thing in

usufruct cannot be used without being consumed# li9e money !but that’sreally a simple loan# where the usufructuary can deal with the money asowner'"

• /he usufructuary shall hae the right to ma9e use of the consumable

thing'

• At the termination of the usufruct# he must8

&' 3ay its appraised aluel or *' 4f there was no appraisal made# either8a' $eturn the same %uantity and %uality# or

b' 3ay its current price at such termination'

Art& *2*& The ,s,"r,ct,ary o" "r,itearing trees an$ shr,s may ma-e,se o" the $ea$ tr,n-s+ an$ e'en o" those c,t o"" or ,#roote$ yacci$ent+ ,n$er the oligation to re#lace them with new #lants& H45.a

Art& *20& I" in conse6,ence o" a calamity or e/traor$inary e'ent+ thetrees or shr,s shall ha'e $isa##eare$ in s,ch consi$erale n,merthat it wo,l$ not e #ossile or it wo,l$ e too ,r$ensome to re#lacethem+ the ,s,"r,ct,ary may lea'e the $ea$+ "allen or ,#roote$ tr,n-s atthe $is#osal o" the owner+ an$ $eman$ that the latter remo'e them an$clear the lan$& H454a

(sufruct on fruit7bearing trees and shrubs

• /he usufructuary is gien the right to ma9e use of dead trun9s and

those cut7off or uprooted by accident but he must place them with newplants because he has the obligation to presere the form or substanceof the property in usufruct'

•

>f course# the usufructuary has no obligation to replace with new plants#the dead trees or shrubs already existing at the beginning of theusufruct'

• (nder article CIH# the usufructuary is not responsible for dead# fallen or

uprooted trun9s caused by calamity or extra7ordinary eents' 4f it wouldnot be possible or be too burdensome to replace them# he may demandthat the owner remoe them and clear the land' Ee may use the trun9sbut he is re%uired to replace them with new plants under Article CIC'

• 4f replacing the trun9s could not be too burdensome# the usufructuary

must replace them# whether or not he ma9es use of them'

Art& *22& The ,s,"r,ct,ary o" woo$lan$ may en!oy all the ene"itswhich it may #ro$,ce accor$ing to its nat,re&

I" the woo$lan$ is a co#se or consists o" timer "or ,il$ing+the ,s,"r,ct,ary may $o s,ch or$inary c,tting or "elling as the ownerwas in the hait o" $oing+ an$ in $e"a,lt o" this+ he may $o so inaccor$ance with the c,stom o" the #lace+ as to the manner+ amo,nt an$season&

In any case the "elling or c,tting o" trees shall e ma$e in s,chmanner as not to #re!,$ice the #reser'ation o" the lan$&

In n,rseries+ the ,s,"r,ct,ary may ma-e the necessarythinnings in or$er that the remaining trees may #ro#erly grow&

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PROPERTY NOTES

<ith the e/ce#tion o" the #ro'isions o" the #rece$ing#aragra#hs+ the ,s,"r,ct,ary cannot c,t $own trees ,nless it e torestore or im#ro'e some o" the things in ,s,"r,ct+ an$ in s,ch caseshall "irst in"orm the owner o" the necessity "or the wor-& H45*

(sufruct on woodland and nurseries• /he woodland may be a copse or may consist of timber for building'

• /he usufructuary may fell or cut trees as the owner was in the habit of

doing or in accordance with the customs of the place as to manner#amount and season' 4n any case# he must not prejudice thepreseration of the land'

• /he usufructuary cannot cut down trees other than as mentioned aboe

unless it be for repair or improement of the things in usufruct but insuch case# the owner must be informed of the necessity for the wor9'

• 4n nurseries# the usufructuary may ma9e the necessary thinnings in

order that the remaining trees may properly grow'

Art& *25& The ,s,"r,ct,ary o" an action to reco'er real #ro#erty or a real

right+ or any mo'ale #ro#erty+ has the right to ring the action an$ toolige the owner thereo" to gi'e him the a,thority "or this #,r#ose an$to ",rnish him whate'er #roo" he may ha'e& I" in conse6,ence o" theen"orcement o" the action he ac6,ires the thing claime$+ the ,s,"r,ctshall e limite$ to the "r,its+ the $ominion remaining with the owner&H450

(sufruct of judicial action to recoer

• /his article applies if the purpose of the action is to recoer real property

or personal property or real right oer real or personal property

• /he action may be instituted in the name of the usufructuary !s an

agent who institutes the action in the name of the principal"

• /he usufructuary may oblige the owner to gie him the necessary

authority to bring the action• 4n case of faorable judgment# the usufruct shall be limited to the fruits#

with the na9ed ownership belonging to the owner' With the terminationof the case# the usufruct of the action comes to an end'

Art& *27& The ,s,"r,ct,ary may ma-e on the #ro#erty hel$ in ,s,"r,cts,ch ,se",l im#ro'ements or e/#enses "or mere #leas,re as he may$eem #ro#er+ #ro'i$e$ he $oes not alter its "orm or s,stance( ,t he

shall ha'e no right to e in$emni"ie$ there"or& ;e may+ howe'er+remo'e s,ch im#ro'ements+ sho,l$ it e #ossile to $o so witho,t$amage to the #ro#erty& H452

What happens when a usufructuary ma9es useful or luxurious expenses?

•/he usufructuary has the right to ma9e improements# useful orluxurious# as he may deem proper'

• What are the rules?

&' Ee must not alter the form or substance of the property#*' Ee may remoe the improements only if it is possible to do so

without damage to the property-' Ee has no right to be indemnified for the improements if he does

not exercise his right to remoeo Ee cannot ino9e the rights of a possessor in good faith in

the concept of owner ' 4f the improements cannot be remoed without damage# he may

set7off the same against any damage caused by him to the property!Art C;"

C' 4f the usufructuary does not wish to exercise his right of remoal#the owner cannot compel him to remoe the improementsH' 4f the usufructuary wishes to exercise his right of remoal# the

owner cannot preent him by offering to reimburse himI' /he usufructuary’s right to remoe the improements includes the

right to destroy them proided no damage is caused to the property' /he right to remoe is enforceable only against the owner# but not

against a purchaser in good faith to whom a clean title has beenissued

o $ight to remoe the improements should be annotated on

the certificate of title# so that it can be enforced againstthird parties

)ase doctrines

• 6y express proision of law# the usufructuaries do not hae the right to

reimbursement for improements they may hae introduced on theproperty' 4f the rule on reimbursement or indemnity were otherwise# thenthe usufructuary might improe the owner out of his property' !Moralidad 3ernes"

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Art& *59& The ,s,"r,ct,ary may set o"" the im#ro'ements he may ha'ema$e on the #ro#erty against any $amage to the same& H455

$ight to set7off improements

• /his article presupposes that

o the improements hae increased the alue of the propertyand

o the damage to the same was caused through the fault of the

usufructuary'

• 4f the damage exceeds the alue of the improements# the usufructuary

is liable for the difference as indemnity

• 4f the alue of the improements exceeds the damage# he may remoe

the portion of the improements representing the excess in alue if thiscan be done without injury to the property# otherwise# the excess inalue accrues to the owner'

Art& *51& The owner o" #ro#erty the ,s,"r,ct o" which is hel$ yanother+ may alienate it+ ,t he cannot alter its "orm or s,stance+ or

$o anything thereon which may e #re!,$icial to the ,s,"r,ct,ary& H457

$ights and obligations of the na9ed owner

• /he na9ed owner may alienate the property in usufruct because the title

!dominium directum) remains ested in him'

• Ee may construct wor9s# ma9e improements# or ma9e new plantings

on the property in usufruct'

• /he alienation by the na9ed owner cannot affect the usufruct which is

registered or 9nown to the transferee'

• /he na9ed owner# howeer# cannot8

o alter the form or substance of the property# or

o do anything thereon which may cause a diminution in the alue

of the usufruct# oro be prejudicial to the rights of the usufructuary#

otherwise# he shall be liable for damages'

• /he na9ed owner must8

o $espect leases of rural lands by the usufructuary for the

balance of the agricultural year !Art CI*"o $eimburse him for adances made for extraordinary repairs

!Art CK"# ando $eimburse him for taxes on the capital !Art CKI"

Art& *5)& The ,s,"r,ct,ary o" a #art o" a thing hel$ in common shalle/ercise all the rights #ertaining to the owner thereo" with res#ect tothe a$ministration an$ the collection o" "r,its or interest& Sho,l$ the

coownershi# cease y reason o" the $i'ision o" the thing hel$ incommon+ the ,s,"r,ct o" the #art allotte$ to the coowner shall elongto the ,s,"r,ct,ary& H479

(sufruct of part of common property

• 4n case a co7owner gies the usufruct of his share to a person# the

usufructuary shall exercise all the rights pertaining to the co7ownerregarding the administration and the collection of the fruits or interestfrom the property

• /he usufructuary shall be bound by the partition made by the owners of

the undiided property although he too9 no part in the partition but thena9ed owner to whom the part held in usufruct has been allotted mustrespect the usufruct'

)ase doctrine

• A partition made by the owners of land is binding upon a person who

has a usufructuary right in an undiided part of the land# although thelatter too9 no part in the partition of the property'

• /he right of the usufructuary is not affected by the diision but it is

limited to the fruits of the said part allotted to the co7owner' !3ichay ,uerol"

:;APTER .O=LI>ATIONS O3 T;E CSC3RC:TCARY

Art& *5.& The ,s,"r,ct,ary+ e"ore entering ,#on the en!oyment o" the

#ro#erty+ is olige$%H1 To ma-e+ a"ter notice to the owner or his legitimate re#resentati'e+an in'entory o" all the #ro#erty+ which shall contain an a##raisal o" themo'ales an$ a $escri#tion o" the con$ition o" the immo'ales(H) To gi'e sec,rity+ in$ing himsel" to ",l"ill the oligations im#ose$,#on him in accor$ance with this :ha#ter& H471

)lassifications of obligations of the usufructuary&' /hose be%ore the usufruct begins

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63





PROPERTY NOTES

a' Ma9e an inentory of the property# which shall contain anappraisal of the moables and a description of theimmoables

b' Gie security*' /hose during the usufruct

a' /a9e care of the property !Art CK"b' /o replace with the young thereof animals that die or arelost in certain cases when the usufruct is constituted onfloc9 or herd of liestoc9 !Art CK&"

c' /o ma9e ordinary repairs !Art CK*# par &"d' /o notify the owner of urgent extraordinary repairs !Art

CK-"e' /o permit wor9s and improements by the na9ed owner

not prejudicial to the usufruct !Art CKC"f' /o pay annual taxes and charges on the fruits !Art CKH"g' /o pay interest on taxes on capital paid by the na9ed

owner !Art CKI"h' /o pay debts when the usufruct is constituted on the whole

of a patrimony !Art CK"i' /o secure the na9ed owner’s or court’s approal to collect

credits in certain cases !Art CKK" j' /o notify the owner of any prejudicial act committed by

third persons !Art H;&"9' /o pay for court expenses and costs regarding usufruct

!Art H;*"-' /hose at the termination of the usufruct

a' /o return the thing in usufruct to the na9ed owner unlessthere is a right of retention !Art H&*"

b' /o pay legal interest for the time that the usufruct lasts# onthe amount spent by the owner for extraordinary repairs!Art CK" and the proper interest on the sums paid astaxes by the owner !Art CKI"# and

c' /o indemnify the na9ed owner for any losses due to hisnegligence or of his transferees' !Art CK7CK;"

>bligation to ma9e an inentory&' 3reious notice to be gien'

• 4n the ma9ing of the inentory# the concurrence of the na9ed owner

is not re%uired'

• <ote that the law says legitimate’# not legal representatie

*' .xpenses of inentory

• 6orne by the usufructuary

-' Borm of inentory

• Article C- does not proide for the form of inentory' 4t may be

contained in a priate document'

• Eoweer# a public instrument is necessary to affect third personswhen there are immoables'

' )ontents of inentory

• /he inentory shall contain

o an itemied list and

o an appraisal of the moables and

o description of the condition of the immoables'

• /he moables must be appraised because they are subject to

greater danger of loss and deterioration'

• 6oth 9inds must be properly identified'

Bailure to ma9e an inentory? (sufruct not extinguished# maybe owner candemand it'

Are there instances where obligation to ma9e inentory is excused? es'ee Art CC'

>bligation to gie security

• /he purpose of giing security is to insure the fulfillment by the

usufructuary of the obligations imposed upon him

• :aw does not specify the 9ind of security that should be gien

Bailure to gie security? ee Art CH'

Art& *54& The #ro'isions o" No& ) o" the #rece$ing article shall not a##lyto the $onor who has reser'e$ the ,s,"r,ct o" the #ro#erty $onate$+ or

to the #arents who are ,s,"r,ct,aries o" their chil$renJs #ro#erty+e/ce#t when the #arents contract a secon$ marriage& H47)a

When obligation to gie security not applicable

• /his article contains the legal exceptions to the obligation of the

usufructuary to gie security in two cases8o /o the donor who has resered the usufruct of the property

donated

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64





PROPERTY NOTES

o /o the parents who are usufructuaries of their children’s

parents# except when the parents contract a second marriage

Art& *5*& The ,s,"r,ct,ary+ whate'er may e the title o" the ,s,"r,ct+may e e/c,se$ "rom the oligation o" ma-ing an in'entory or o" gi'ing

sec,rity+ when no one will e in!,re$ therey& H47.

When obligation to ma9e inentory or to gie security excused

• /he usufructuary may be excused from the obligation in the following

cases8&' Where the na9ed owner renounces or waies his right to the

inentory or security*' Where the title constituting the usufruct reliees the usufructuary

from the obligation5o 4s fre%uently true in usufructs constituted by a last will and

testament or by a deed of donation in iew of the trustwhich the testator or donor has in the usufructuary

-' Where the usufructuary as9s that he be exempted from the

obligation and no one will be injured thereby'o /he usufructuary may apply to the courts for relief in case

the na9ed owner refuses to grant the exemption where# for example# the usufruct is oer the right to receie a periodicincome or pension

Art& *50& Sho,l$ the ,s,"r,ct,ary "ail to gi'e sec,rity in the cases inwhich he is o,n$ to gi'e it+ the owner may $eman$ that theimmo'ales e #lace$ ,n$er a$ministration+ that the mo'ales e sol$+that the #,lic on$s+ instr,ments o" cre$it #ayale to or$er or toearer e con'erte$ into registere$ certi"icates or $e#osite$ in a an-or #,lic instit,tion+ an$ that the ca#ital or s,ms in cash an$ the#rocee$s o" the sale o" the mo'ale #ro#erty e in'este$ in sa"esec,rities&

The interest on the #rocee$s o" the sale o" the mo'ales an$that on #,lic sec,rities an$ on$s+ an$ the #rocee$s o" the #ro#erty#lace$ ,n$er a$ministration+ shall elong to the ,s,"r,ct,ary&

3,rthermore+ the owner may+ i" he so #re"ers+ ,ntil the,s,"r,ct,ary gi'es sec,rity or is e/c,se$ "rom so $oing+ retain in his#ossession the #ro#erty in ,s,"r,ct as a$ministrator+ s,!ect to theoligation to $eli'er to the ,s,"r,ct,ary the net #rocee$s thereo"+ a"ter$e$,cting the s,ms which may e agree$ ,#on or !,$icially allowe$him "or s,ch a$ministration& H474

.ffects of failure to gie security# when re%uired

• >n rights of owners8 Where the obligation to gie security or to file a

bond is not excused or exempted# the failure of the usufructuary tocomply with the same entitle the na9ed owner for his protection

o to demand that immoables be placed under administration orreceiership#

o moables be sold#

o instruments of credit be registered or deposited in a ban9 or

public institutiono capital or sums in cash and the proceeds of the sale of the

moable be inested in safe securities'

• >n rights of usufructuary8 (ntil he gies the proper security# the

usufructuary cannot enter upon the possession and enjoyment of theproperty' Ee may not collect any matured credits nor inest capital inusufruct without the consent of the owner or judicial authoriation'

• /he failure to gie security does not extinguish the right of usufruct'

Eence# the usufructuary may alienate his right to the usufruct

• /his article only spea9s of security !it would seem that the failure of theusufructuary to ma9e an inentory# when not excused# does not haethe same effect as when security is not gien'"

Art& *52& I" the ,s,"r,ct,ary who has not gi'en sec,rity claims+ y'irt,e o" a #romise ,n$er oath+ the $eli'ery o" the ",rnit,re necessary"or his ,se+ an$ that he an$ his "amily e allowe$ to li'e in a ho,seincl,$e$ in the ,s,"r,ct+ the co,rt may grant this #etition+ a"ter $,econsi$eration o" the "acts o" the case&

The same r,le shall e oser'e$ with res#ect to im#lements+tools an$ other mo'ale #ro#erty necessary "or an in$,stry or 'ocationin which he is engage$&

I" the owner $oes not wish that certain articles e sol$

eca,se o" their artistic worth or eca,se they ha'e a sentimental'al,e+ he may $eman$ their $eli'ery to him ,#on his gi'ing sec,rity "or the #ayment o" the legal interest on their a##raise$ 'al,e& H47*

worn underta9ing in lieu of security !caucion juratoria"

• /his article applies when the usufructuary who is under obligation to

gie security cannot afford to do so and no one is willing to gie securityfor them


65




j

PROPERTY NOTES

• Bor humanitarian considerations# the court may allow the usufructuary to

enjoy the property upon ta9ing an oath to ta9e care of the property andretain it until the termination of the usufruct in lieu of giing the security

• /he usufructuary must first as9 the na9ed owner to grant him the rights

mentioned# and should the latter refuse# he may resort to the courts

• Articles with artistic or sentimental alue may not be sold' /he owner

may demand their deliery to him if he gies security to the usufructuaryfor the payment of the legal interest on their appraised alue'

Art& *55& A"ter the sec,rity has een gi'en y the ,s,"r,ct,ary+ he shallha'e a right to all the #rocee$s an$ ene"its "rom the $ay on which+ inaccor$ance with the title constit,ting the ,s,"r,ct+ he sho,l$ ha'ecommence$ to recei'e them& H470

$etroactie effect of giing security

• /his article applies where the usufructuary who is re%uired to gie

security gies the security after the commencement of the usufruct

• Bailure to gie the needed security may deprie the usufructuary of theright to enjoy the possession of the property in usufruct

• Eoweer# once the security is gie# he is entitled to all the proceeds and

benefits of the usufruct accruing from the day on which he should haecommenced to receie them# from the day the usufruct commencedaccording to its title'

Art& *57& The ,s,"r,ct,ary shall ta-e care o" the things gi'en in,s,"r,ct as a goo$ "ather o" a "amily& H472

>bligation to ta9e care of the property

• 4ncludes the ma9ing of ordinary repairs needed by thing gien in

usufruct

•)are re%uired is that of a good father of a family !ordinary diligence"

• 6ut diligence should not be less than that re%uired by the circumstances

• (sufructuary is liable for damages suffered by the property due to his

fault and negligence

Art& *79& A ,s,"r,ct,ary who alienates or leases his right o" ,s,"r,ctshall answer "or any $amage which the things in ,s,"r,ct may s,""erthro,gh the "a,lt or negligence o" the #erson who s,stit,tes him&H475

:iability for fault or negligence of substitute

• /he usufructuary may alienate or lease his right

• Eoweer# he shall be liable to the owner for any damage which the

property in usufruct may suffer through the fault or negligence !also

fraud or willful acts" of the substitute without prejudice to his right ofaction against the latter

Art& *71& I" the ,s,"r,ct e constit,te$ on a "loc- or her$ o" li'estoc-+the ,s,"r,ct,ary shall e olige$ to re#lace with the yo,ng thereo" theanimals that $ie each year "rom nat,ral ca,ses+ or are lost $,e to thera#acity o" easts o" #rey&

I" the animals on which the ,s,"r,ct is constit,te$ sho,l$ all#erish+ witho,t the "a,lt o" the ,s,"r,ct,ary+ on acco,nt o" somecontagio,s $isease or any other ,ncommon e'ent+ the ,s,"r,ct,aryshall ",l"ill his oligation y $eli'ering to the owner the remains whichmay ha'e een sa'e$ "rom the mis"ort,ne&

Sho,l$ the her$ or "loc- #erish in #art+ also y acci$ent an$

witho,t the "a,lt o" the ,s,"r,ct,ary+ the ,s,"r,ct shall contin,e on the#art sa'e$&Sho,l$ the ,s,"r,ct e on sterile animals+ it shall e consi$ere$+ withres#ect to its e""ects+ as tho,gh constit,te$ on ",ngile things& H477a

(sufruct on a floc9 or herd of liestoc9

• /he usufructuary has the duty to ma9e replacement although the death

of the animals is due to natural causes' 6ut the replacement is to bemade only from the young produced so that if there are no young or thenumber of the young is less than that of the animals that died# theusufructuary has no duty to replace or to fill up the difference'

• <o duty to replace proided the usufructuary is without fault !* nd and -rd

paragraphs"' .en if the partial loss is due to the fault of theusufructuary# the usufruct continues with the remainder' 6ad use doesnot extinguish the usufruct !Art H;-"# but the owner may bring thenecessary action for the protection of his rights'

• 4f the animals are sterile# and they cannot be replaced by the young

thereof# the usufruct shall be treated as constituted on fungible things' 4nsuch case Art CI applies'

Art& *7)& The ,s,"r,ct,ary is olige$ to ma-e the or$inary re#airsnee$e$ y the thing gi'en in ,s,"r,ct&


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PROPERTY NOTES

=y or$inary re#airs are ,n$erstoo$ s,ch as are re6,ire$ y thewear an$ tear $,e to the nat,ral ,se o" the thing an$ are in$is#ensale"or its #reser'ation& Sho,l$ the ,s,"r,ct,ary "ail to ma-e them a"ter$eman$ y the owner+ the latter may ma-e them at the e/#ense o" the,s,"r,ct,ary& H*99

>bligation to ma9e ordinary repairs

• /he usufructuary is bound to ma9e the repairs referred to without the

necessity of demand from the owner o /he owner may ma9e them at the expense of the usufructuary#

only should the latter fail to ma9e them after demand has beenmade upon him'

o /he defects re%uiring ordinary repairs must hae occurred

during the usufruct# whether with or without the fault of theusufructuary'

• /he usufructuary is not liable for deterioration resulting from wear and

tear not due to his fraud or negligence# unless the deterioration couldhae been preented or arrested by ordinary repairs and he failed to

ma9e them without alid reason'

Art& *7.& E/traor$inary re#airs shall e at the e/#ense o" the owner&The ,s,"r,ct,ary is olige$ to noti"y the owner when the nee$ "or s,chre#airs is ,rgent& H*91Art& *74& I" the owner sho,l$ ma-e the e/traor$inary re#airs+ he shallha'e a right to $eman$ o" the ,s,"r,ct,ary the legal interest on theamo,nt e/#en$e$ "or the time that the ,s,"r,ct lasts&Sho,l$ he not ma-e them when they are in$is#ensale "or the#reser'ation o" the thing+ the ,s,"r,ct,ary may ma-e them( ,t heshall ha'e a right to $eman$ o" the owner+ at the termination o" the,s,"r,ct+ the increase in 'al,e which the immo'ale may ha'eac6,ire$ y reason o" the re#airs& H*9)a

Duty of owner to pay for extraordinary repairs• :aw does not impose an obligation on the na9ed owner or the

usufructuary to ma9e extraordinary repairs on the property in usufruct' 4tis optional for them to ma9e sure repairs or not'

• 3ayment for extraordinary repairs8

o /hose re%uired by the wear and tear due to the natural use of

the thing but not indispensable for its preseration >$ thosere%uired by the deterioration of or damage the thing caused by

the exceptional circumstances but not indispensable for itspreseration8

/he owner cannot be compelled to ma9e them' 4f he

should ma9e them# they shall be at his expense sincethey are made on his property but he shall a right to

demand of the usufructuary who is benefited by therepairs# legal interest on the amount expended duringthe duration of the usufruct'

/he usufructuary may ma9e them but he is not

entitled to indemnity because they are not needed forthe preseration of the thing'

o /hose re%uired by the deterioration of or damage to the thing

caused by exceptional circumstances and are indispensablefor its preseration8

4t is also optional upon the owner or the usufructuary

to ma9e the repairs or not' 4f the owner should ma9ethe repairs# they shall be at his expense'

4f made by the usufructuary# he shall hae the right to

demand of the owner the payment of the increase inalue of the immoable by reason of the repairs at thetermination of the usufruct proided the following arepresent8

• Ee notified the owner of the urgency of the

repairs

• /he owner failed to ma9e the repairs

• /he repair is necessary for the preseration

of the property

• /he usufructuary has the right of retention een after the termination of

the usufruct until he is reimbursed for the increase in alue of theproperty caused by extraordinary repairs for preseration !Art H&*"

o 4ncrease in alue is the difference between the alue of the

property before the repairs were made and the alue after therepairs were completed

Art& *7*& The owner may constr,ct any wor-s an$ ma-e anyim#ro'ements o" which the immo'ale in ,s,"r,ct is s,sce#tile+ orma-e new #lantings thereon i" it e r,ral+ #ro'i$e$ that s,ch acts $onot ca,se a $imin,tion in the 'al,e o" the ,s,"r,ct or #re!,$ice theright o" the ,s,"r,ct,ary& H*9.


67




PROPERTY NOTES

)onstruction# improements and plantings by owner

• /he owner has the right to do the wor9s mentioned proided the alue

of the usufruct is not prejudiced

• Any increase in the alue of the usufruct due to the improements will

inure to the benefit of the usufructuary for he is entitled to the use and

fruits of the property• /he owner has no right to demand legal interest on his expenses

because they were oluntarily incurred by him

• /he owner may een alienate his property or ma9e changes thereon as

long as he doesn’t impair the right of the usufructuary'

)ase doctrine

• 4n a case where the usufruct was oer the land# and the owner built

buildings on the land# and the usufructuary was demanding the rents ofthe buildings as part of the usufruct# the )ourt held that the usufructuarywas not entitled to the rents of the building' /he usufructuary’s argumentthat Article CI& was applicable !right to enjoy any increase byaccession" was wrong because such accession is limited to buildings

erected on the land of another and does not contemplate a situationwhere the owner himself erected the buildings' !Gaboya )ui"

• Eoweer# the usufructuary was entitled to reasonable rental for the

portion of the land occupied by the building because the construction ofthe building had reduced the area of the land and to that extentdiminished the alue of the usufruct' Eoweer# li9e said aboe# since theusufruct was resered oer the land alone# the usufructuary was notentitled to the rents of the building itslef'

Art& *70& The #ayment o" ann,al charges an$ ta/es an$ o" thoseconsi$ere$ as a lien on the "r,its+ shall e at the e/#ense o" the,s,"r,ct,ary "or all the time that the ,s,"r,ct lasts& H*94

Art& *72& The ta/es which+ $,ring the ,s,"r,ct+ may e im#ose$ $irectlyon the ca#ital+ shall e at the e/#ense o" the owner&I" the latter has #ai$ them+ the ,s,"r,ct,ary shall #ay him the #ro#erinterest on the s,ms which may ha'e een #ai$ in that character( an$+i" the sai$ s,ms ha'e een a$'ance$ y the ,s,"r,ct,ary+ he shallreco'er the amo,nt thereo" at the termination o" the ,s,"r,ct& H*9*

:iability for charges and taxes

• (sufructuary must pay the annual charges and taxes which are

imposed# and# therefore# are a lien upon the fruits during the term of theusufruct'

• Are real property taxes imposed on the fruits or on the capital? >n the

capital'

• /axies leied on the capital must be paid by the na9ed owner but he hasright to demand from the usufructuary the proper interest on the sumspaid'

• 4f the taxes were adanced oluntarily by the usufructuary he is entitled

to be reimbursed therefor at the termination of the usufruct with the rightof retention until paid'

Art& *75& I" the ,s,"r,ct e constit,te$ on the whole o" a #atrimony+ an$i" at the time o" its constit,tion the owner has $ets+ the #ro'isions o"Articles 2*5 an$ 2*7 relating to $onations shall e a##lie$+ oth withres#ect to the maintenance o" the ,s,"r,ct an$ to the oligation o" the,s,"r,ct,ary to #ay s,ch $ets&The same r,le shall e a##lie$ in case the owner is olige$+ at the time

the ,s,"r,ct is constit,te$+ to ma-e #erio$ical #ayments+ e'en i" theresho,l$ e no -nown ca#ital& H*90

Where usufruct coners entire patrimony

• Art CK applies to a

o uniersal usufruct or one which coers the entire patrimony of

the owner# ando at the time of its constitution# by donation or any other acts

inter ios# he has debts# whether secured or unsecured# or isbound to ma9e periodical payments een if# in the latter case#there should be no 9nown capital

• /he liability of the usufructuary for the debts of the na9ed owner is the

same as that of the donee under IC and ICK

o when there is a stipulation for the payment by the usufructuaryof the debts of the owner# the former is liable only for the debtscontracted by the latter before the constitution of the usufruct

o in the absence of stipulation# the usufructuary shall be

responsible only when the usufruct was created in fraud ofcreditors

Art& *77& The ,s,"r,ct,ary may claim any mat,re$ cre$its which "orm a#art o" the ,s,"r,ct i" he has gi'en or gi'es the #ro#er sec,rity& I" he


68




PROPERTY NOTES

has een e/c,se$ "rom gi'ing sec,rity or has een ale to gi'e it+ or i"that gi'en is not s,""icient+ he shall nee$ the a,thoriation o" theowner+ or o" the co,rt in $e"a,lt thereo"+ to collect s,ch cre$its&

The ,s,"r,ct,ary who has gi'en sec,rity may ,se the ca#italhe has collecte$ in any manner he may $eem #ro#er& The ,s,"r,ct,ary

who has not gi'en sec,rity shall in'est the sai$ ca#ital at interest ,#onagreement with the owner( in $e"a,lt o" s,ch agreement+ with !,$iciala,thoriation( an$+ in e'ery case+ with sec,rity s,""icient to #reser'ethe integrity o" the ca#ital in ,s,"r,ct& H*92

(sufruct of matured credits

• if the usufructuary has gien sufficient security# he may claim matured

credits forming part of the usufruct# collect them# and use and inest#with or without interest# the capital he has collected# in any manner hemay deem proper

• if he

o has <>/ gien security# or

o that gien is not sufficient# or

o

he has been excused f rom giing security# he may collect the credits and inest the capital which

must be at interest# with the consent of the na9edowner or approal of the court'

/he credits which constitute the capital belong to the

na9ed owner but the usufructuary has the right to useand inest them# and to receie the interest therefrom'

• 4n eery case# the inestment of the capital must be with sufficient

security to presere its integrity

Art& 099& The ,s,"r,ct,ary o" a mortgage$ immo'ale shall not eolige$ to #ay the $et "or the sec,rity o" which the mortgage wasconstit,te$&

Sho,l$ the immo'ale e attache$ or sol$ !,$icially "or the#ayment o" the $et+ the owner shall e liale to the ,s,"r,ct,ary "orwhate'er the latter may lose y reason thereo"& H*97

(sufruct of mortgaged immoables

• /he usufruct is particular# constituted by will or by acts inter ios#

whether by onerous or gratuitous title

• 4f the usufruct is uniersal# the liability of the usufructuary to pay for the

mortgage is goerned by Art CK'

• /he owner may alidly mortgage the property in faor of a third person'

/he debt must be paid by the owner'

• /he usufructuary may mortgage his right of usufruct which is a real right

Art& 091& The ,s,"r,ct,ary shall e olige$ to noti"y the owner o" any

act o" a thir$ #erson+ o" which he may ha'e -nowle$ge+ that may e#re!,$icial to the rights o" ownershi#+ an$ he shall e liale sho,l$ henot $o so+ "or $amages+ as i" they ha$ een ca,se$ thro,gh his own"a,lt& H*11

>bligation to notify owner of prejudicial acts by third persons

• Art H;& spea9s of any act which may be prejudicial to the rights of

ownership’# not merely of the na9ed ownership’

• A usufructuary has the duty to protect the owner’s interest

• Eoweer# where the act affects possession# although this is in the

usufructuary# he should notify the owner because the latter has aninterest in defending it'

• /he usufructuary is also obliged to notify the owner before ma9ing an

inentory of the property and of the need of urgent repairs'

)ase doctrine

• A usufructuary has the duty to protect the owner’s interests 2 a usufruct

gies a right to enjoy the property of another with the obligation ofpresering its form and substance# unless the title constituting it or thelaw otherwise proides' !<EA )A"

Art& 09)& The e/#enses+ costs an$ liailities in s,its ro,ght withregar$ to the ,s,"r,ct shall e orne y the ,s,"r,ct,ary& H*1)

>bligation to pay for judicial expenses and cost

• ince they are in connection with litigation oer possession affecting the

rights of the usufructuary# it is just that they are borne by him'• 4f the litigation inoles only the na9ed ownership# the owner should

assume them'

:;APTER 4ETIN>CIS;MENT O3 CSC3RC:T

Art& 09.& Cs,"r,ct is e/ting,ishe$%


69




PROPERTY NOTES

H1 =y the $eath o" the ,s,"r,ct,ary+ ,nless a contraryintention clearly a##ears(

H) =y the e/#iration o" the #erio$ "or which it was constit,te$+or y the ",l"illment o" any resol,tory con$ition #ro'i$e$ in the titlecreating the ,s,"r,ct(

H. =y merger o" the ,s,"r,ct an$ ownershi# in the same#erson(H4 =y ren,nciation o" the ,s,"r,ct,ary(H* =y the total loss o" the thing in ,s,"r,ct(H0 =y the termination o" the right o" the #erson constit,ting

the ,s,"r,ct(H2 =y #rescri#tion& H*1.a

Eow is a usufruct extinguished?&' Death of the usufructuary !unless contrary intention clearly appears"*' .xpiration of period or fulfillment of condition-' 6y merger of the usufruct and ownership in the same person' 6y renunciation of the usufructuaryC' 6y the total loss of the thing

H' /ermination of right of owner !refers to the right of the personconstituting the usufruct# not to a condition imposed upon the usufructitself"

I' 6y prescription !ac%uisitie prescription by the use of a third person# notthe use by the usufructuary"

' >ther causes !annulment or rescission of the contract"

)ase doctrines

• Although the owner expressly authoried the usufructuaries to occupy a

portion of her property 0as long as they li9e1# the usufruct may beconsidered terminated by other modes or instances of extinguishment#such as the fulfillment of any resolutory condition proided in thedocument creating the usufruct' !Moralidad pouses 3erne"

• /he -;7year limitation on usufruct under the >ld panish )iil )odedoes not apply to trusts' !3alad Goernor of ,ueon 3roince"

Art& 094& I" the thing gi'en in ,s,"r,ct sho,l$ e lost only in #art+ theright shall contin,e on the remaining #art& H*14

• /o extinguish a usufruct# the loss must be total# except as proided in Art

H;I to H;K

• 4f the loss in only partial# the usufruct continues with the remaining part'

6ut if the partial loss may be so important as to be considered total loss#the courts shall determine'

Art& 09*& Cs,"r,ct cannot e constit,te$ in "a'or o" a town+ cor#oration+

or association "or more than "i"ty years& I" it has een constit,te$+ an$e"ore the e/#iration o" s,ch #erio$ the town is aan$one$+ or thecor#oration or association is $issol'e$+ the ,s,"r,ct shall ee/ting,ishe$ y reason thereo"& H*1*a

• /he ordinary life of a corporation is C; years' (nli9e a natural person# a

corporation or association may be extended indefinitely' 3ublic policyfrowns upon perpetual usufruct'

• /he fifty7year limitation does not apply to trusts'

Art& 090& A ,s,"r,ct grante$ "or the time that may ela#se e"ore a thir$#erson attains a certain age+ shall s,sist "or the n,mer o" yearss#eci"ie$+ e'en i" the thir$ #erson sho,l$ $ie e"ore the #erio$ e/#ires+

,nless s,ch ,s,"r,ct has een e/#ressly grante$ only in consi$erationo" the e/istence o" s,ch #erson& H*10

• .xception here is when the usufruct has been expressly granted only in

consideration of the existence of the third person

Art& 092& I" the ,s,"r,ct is constit,te$ on immo'ale #ro#erty o" whicha ,il$ing "orms #art+ an$ the latter sho,l$ e $estroye$ in any manner whatsoe'er+ the ,s,"r,ct,ary shall ha'e a right to ma-e ,se o" the lan$an$ the materials&

The same r,le shall e a##lie$ i" the ,s,"r,ct is constit,te$ ona ,il$ing only an$ the same sho,l$ e $estroye$& =,t in s,ch a case+i" the owner sho,l$ wish to constr,ct another ,il$ing+ he shall ha'e aright to occ,#y the lan$ an$ to ma-e ,se o" the materials+ eingolige$ to #ay to the ,s,"r,ct,ary+ $,ring the contin,ance o" the,s,"r,ct+ the interest ,#on the s,m e6,i'alent to the 'al,e o" the lan$an$ o" the materials& H*12

Where usufruct of land and building# and building destroyed

• /he destruction of the building terminates the usufruct on the building

but no the usufruct on the land


70




PROPERTY NOTES

• /he usufructuary is still entitled to use the land and in place of the

building# the materials thereof' !3artial loss"

• /he usufructuary can insist on the use of the land and the materials for

the remainder of the term of the usufruct as the right is granted him bylaw as against the wish of the owner to construct another building' While

the usufruct on a building does not expressly include the land on whichit is constructed# the land should be deemed included# for while therecan be land without a building# there can be no building without land'

• /he na9ed owner shall pay legal interest on insurance receied if it has

not been used in the construction of another building during the wholeperiod of the usufruct' 6ut he may# if he desires# reliee himself of thisencumbrance by turning oer the money to the usufructuary so that hemay use it subject to the obligation to return the amount to the na9edowner after his death as proided in article H&*'

Where usufruct on building only and it is destroyed

• ame rule applies although the usufruct does not coer the land for the

simple reason that the use of the building necessarily inoles the use

of the land• 6ut# the owner is gien the preferential right to construct another

building# occupy the land and ma9e use of the material een against theobjection of the usufructuary

• /he only right of the usufructuary is to receie during the continuance of

the usufruct# legal interest on the alue of the land of the materials'

)ase doctrines

• A life usufruct constituted on the rentals of the %incas situadas located at

a certain place includes the rentals both on the building and the land onwhich it is erected# because the building can not exist without the land'Eence# the usufruct is not extinguished by the destruction of thebuilding# for under the law usufruct is extinguished only by the total loss

of the thing subject of the encumbrance' !Fda de Albar )arandang"

Art& 095& I" the ,s,"r,ct,ary shares with the owner the ins,rance o" thetenement gi'en in ,s,"r,ct+ the "ormer shall+ in case o" loss+ contin,ein the en!oyment o" the new ,il$ing+ sho,l$ one e constr,cte$+ orshall recei'e the interest on the ins,rance in$emnity i" the owner $oesnot wish to re,il$&

Sho,l$ the ,s,"r,ct,ary ha'e re",se$ to contri,te to theins,rance+ the owner ins,ring the tenement alone+ the latter shall

recei'e the ",ll amo,nt o" the ins,rance in$emnity in case o" loss+sa'ing always the right grante$ to the ,s,"r,ct,ary in the #rece$ingarticle& H*15a

3ayment of cost of insurance

•

<either the owners nor the usufructuary is under obligation to insure theproperty in usufruct' hould they do so# and 2

o /he usufructuary shares with the owner in insuring the

property# the usufructuary shall continue to enjoy the newbuilding to be constructed# or if the owner does not wish torebuild# the usufructuary shall receie the legal interest on theinsurance proceeds which will go to the owner'

o /he usufructuary refuses to contribute to the insurance# and so

the owner pays it alone# the owner gets the full insuranceindemnity in case of loss# the right of the usufructuary beinglimited to the legal interest on the alue of the land and of thematerials'

• /he article is silent where the usufructuary alone pays the insurance# or

where both share in the payment thereof# as to the proportion of theircontribution to the insurance'

Art& 097& Sho,l$ the thing in ,s,"r,ct e e/#ro#riate$ "or #,lic ,se+the owner shall e olige$ either to re#lace it with another thing o" thesame 'al,e an$ o" similar con$itions+ or to #ay the ,s,"r,ct,ary thelegal interest on the amo,nt o" the in$emnity "or the whole #erio$ o"the ,s,"r,ct& I" the owner chooses the latter alternati'e+ he shall gi'esec,rity "or the #ayment o" the interest& H*17

Art& 019& A ,s,"r,ct is not e/ting,ishe$ y a$ ,se o" the thing in,s,"r,ct( ,t i" the a,se sho,l$ ca,se consi$erale in!,ry to theowner+ the latter may $eman$ that the thing e $eli'ere$ to him+in$ing himsel" to #ay ann,ally to the ,s,"r,ct,ary the net #rocee$s o"

the same+ a"ter $e$,cting the e/#enses an$ the com#ensation whichmay e allowe$ him "or its a$ministration& H*)9

.xpropriation of thing in usufruct

• /he expropriation of the thing does not extinguish the usufruct'

• Article H;K allows the substitution of the thing by an e%uialent thing'

• 4f the thing in usufruct is expropriated for public use# the na9ed owner is

gien the option8


71




PROPERTY NOTES

o to replace it with another thing of the same alue and of similar

conditions# oro to pay to the usufructuary the legal interest on the amount of

indemnity for the whole period of the usufruct' 4n the latter case# the owner shall gie security for the

payment of the interest'

.ffect of bad use

• 6ad use of the thing in usufruct does not extinguish the right of the

usufructuary whether there is security or not' /he usufruct continues'

• 6ut if the bad use causes considerable injury to the owner# not to the

thing itself# the owner is gien the right to demand that the thing bedeliered to him# binding himself to pay annually to the usufructuary thenet proceeds of the same# after deducting the expenses and thecompensation which may be allowed him for its administration'

• /his is true where the usufructuary has not gien any security or the

security gien is insufficient especially if the owner has no property'

• /he second part of the proision can hardly apply where there is

sufficient security for 0no considerable injury1 could possible be causedto the owner'

Art& 011& A ,s,"r,ct constit,te$ in "a'or o" se'eral #ersons li'ing at thetime o" its constit,tion shall not e e/ting,ishe$ ,ntil $eath o" the lasts,r'i'or& H*)1

(sufruct in faor of seeral persons

• (sufruct is extinguished by the death of the usufructuary unless a

contrary intention appears'

• /he usufruct is not extinguished until the death of the last surior' As

the usufruct continues# the rights of any usufructuary who dies shallaccrue to the suriing usufructuaries'

o /he only exception is when the title constituting the usufructproides otherwise as where the usufruct is constituted in a listand will and testament and the testator ma9es a contraryproision'

Art& 01)& C#on the termination o" the ,s,"r,ct+ the thing in ,s,"r,ctshall e $eli'ere$ to the owner+ witho,t #re!,$ice to the right o"retention #ertaining to the ,s,"r,ct,ary or his heirs "or ta/es an$

e/traor$inary e/#enses which sho,l$ e reim,rse$& A"ter the $eli'eryhas een ma$e+ the sec,rity or mortgage shall e cancelle$& H*))a

>bligation of usufructuary to return the thing upon termination of the usufruct

• (pon the termination of the usufruct# it is the duty of the usufructuary to

return the property to the na9ed owner'• /he usufructuary is expressly granted the right of retention until he is

reimbursed for the amount of taxes leied on the capital and for theincrease in alue caused by extraordinary repairs'

• Ee has no right to reimbursement for useful improements'

TITLE VII EASEMENTS OR SERVITC8ES:;APTER ONEEASEMENTS IN >ENERAL

.)/4>< ><. 2 D4BB.$.</ N4<D >B .A.M.</

Art& 01.& An easement or ser'it,$e is an enc,mrance im#ose$ ,#onan immo'ale "or the ene"it o" another immo'ale elonging to a$i""erent owner&

The immo'ale in "a'or o" which the easement is estalishe$is calle$ the $ominant estate( that which is s,!ect thereto+ the ser'ientestate& H*.9

.asement or seritude defined

• .asement or seritude has been defined as a 0real right constituted on

another’s property# corporeal and immoable# by irtue of which theowner of the same has to abstain from doing or to allow somebody elseto do something on his property for the benefit of another thing orperson'1

• /he definition in this article is not complete# being limited to real

easement'

• 4n iew of the next article which refers to personal easement# the term

may be defined as an encumbrance imposed upon an immoable forthe benefit of another immoable belonging to a different owner or forthe benefit of a community or one or more persons to whom theencumbered estate does not belong by irtue of which the owner is


72




PROPERTY NOTES

obliged to abstain from doing or to permit a certain thing to be done onhis estate !whew'"

.asement and seritude distinguished&' 4t is said that easement refers to the right enjoyed by one# and seritude#

the burden imposed upon another'*' /he two terms are used synonymously in the )iil )ode although it ismore partial to easement'

)haracteristics of easement&' 4t is a real right but will affect third persons only when duly registered5*' 4t is enjoyed oer another immoable# neer on one’s own property5-' 4t inoles two neighboring estates# the dominant to which a right

belongs and the serient upon which an obligation rests5' 4t is inseparable from the estate to which it is attached and# therefore#

cannot be alienated independently of the estate !Art H&I"C' 4t is indiisible for it is not affected by the diision of the estate between

two or more persons !Art H&"H' 4t is a right limited by the needs of the dominant owner or estate# without

possession5I' 4t cannot consist in the doing of an act unless the act is accessory in

relation to a real easement5 and' 4t is a limitation on the serient owner’s rights of ownership for the

benefit of the dominant owner5 and therefore# it is not presumed'

• .asement gies the holder an incorporeal right on the land but grants

no title thereto' /herefore# an ac9nowledgment of the easement is anadmission that the property belongs to another'

.asement established only on immoable

• .asements cannot be imposed on personal property but only on

immoable !which must be understood in its common and not in its legal

sense"'• What the law treats of are not immoables as defined by the )iil )ode

but only those which are so by their nature !are really incapable of beingmoed" such as lands# roads# buildings# and constructions adhering tothe soil'

<ature of benefit to dominant estate

• .asement can exist only when the serient and dominant estates

belong to different owners'

• /here can be no easement without a burden on an estate for the benefit

of another immoable belonging to a different owner or of a person orgroup of persons'

• /he dominant estate cannot be the serient estate at the same time'

• 4t is not essential that the benefit be ery great# it being sufficient that

there is a determinate use or utility in faor of a dominant estate oer anestate belonging to another'

• /he important thing is that it exists and can be exercised'

• >n the other hand# the benefit should not be so great as to be

inconsistent with the general right of ownership of a person# amountingto a ta9ing of his property'

.asement :ease

$eal right# whether registered or not#and whether it is real or personal

$eal right only when it is registered#or when its subject is real propertyand the duration exceeds one year

4mposed only on real property May inole real or personal property

:imited right to the use of real

property of another but without theright of possession !0without anyexclusie possession or occupation1"

:imited right to both the possession

and use of another’s property!0exclusie possession1"

.asement (sufruct4mposed only on real property May inole real or personal

property

:imited to a particular or specific useof the serient estate

4ncludes all the uses and fruits of theproperty

<on7possessory right oer animmoable

$ight of possession in an immoableor moable

<ot extinguished by the death of thedominant owner

As a rule# extinguished by the deathof the usufructuary

• 6oth usufruct and easement are real rights# whether registered or not#and are transmissible'

)ase doctrines

• /he power of eminent omain encompasses not only the ta9ing of title to

and possession of the expropriated property but li9ewise coers eenthe imposition of a mere burden upon the owner of the condemnedproperty' Where the nature of the easement practically depries theowners of the property’s normal beneficial use# notwithstanding the fact


73




PROPERTY NOTES

that the expropriator only occupies the sub7terrain portion# it is liable topay not merely an easement fee but rather the full compensation forland' !<3) 4brahim"

Art& 014& Ser'it,$es may also e estalishe$ "or the ene"it o" a

comm,nity+ or o" one or more #ersons to whom the enc,mere$ estate$oes not elong& H*.1

)lassifications of easement&' As to recipient of benefit

a' $eal 2 when the easement is in faor of anotherimmoable !Art H&-"5 or

b' 3ersonal 2 when it is in faor of a community or of onemore persons !Art H&"' /hus# it maybe public or priate'

*' As to its sourcea' Foluntary 2 when the easement is established by the will

or agreement of the parties or by a testator !Art H&K"5b' :egal 2 when it is imposed by law either for public use or

in the interest of priate persons !Art H-I7HI"5 or

c' Mixed 2 when it is created partly by will or agreement andpartly by law'

-' As to its exercisea' )ontinuous 2 see Article H&C5 or b' Discontinuous

' As to whether or not its existence is indicateda' Apparent5 orb' <on7apparent

C' As to the duty of serient owner a' 3ositie 2 see Article H&H5 or b' negatie

$eal and personal seritudes

•

A seritude may be established for the benefit8&' of a particular estate and conse%uently# for its owner5 !real or

predial "*' of a person or group of persons without being the owner or owners

of a dominant estate' !personal"

• (nli9e a real easement# personal easement does not re%uire two

immoables' An example of a personal easement is a right of waygranted to certain persons and their family# friends# serants# and jeeps'/he seritude is for the benefit alone of the persons enumerated and

not a predial seritude that inures to the benefit of whoeer owns thedominant estate' Eence# the owner of the serient estate may refuse toextend the said easement to the successors7in7interest of the personsfor whose benefit the seritude exists' !@abonete Monteerde"

3ublic and priate easements• 3ersonal easements may be8

&' 3ublic# if it is ested in the public at large or in some class ofindeterminate indiiduals !li9e the right of the public to a highwayoer a land of priate ownership"

*' 3riate# if it is ested in a determinate indiidual or certain persons!li9e a right of way ested in the owner of one parcel of land oer anadjoining parcel of land"

)ase doctrines

• When a person is allowed to construct his house on the land of another

to facilitate his gathering of fruits# this would be in the nature of apersonal easement under Article H&' !Alcantara $eta"

Art& 01*& Easements may e contin,o,s or $iscontin,o,s+ a##arent ornona##arent&

:ontin,o,s easements are those the ,se o" which is or may eincessant+ witho,t the inter'ention o" any act o" man&

8iscontin,o,s easements are those which are ,se$ atinter'als an$ $e#en$ ,#on the acts o" man&

A##arent easements are those which are ma$e -nown an$ arecontin,ally -e#t in 'iew y e/ternal signs that re'eal the ,se an$en!oyment o" the same&

Nona##arent easements are those which show no e/ternalin$ication o" their e/istence& H*.)

)ontinuous and discontinuous easements

• Bor an easement to be continuous# it is not necessary that the use beincessant5 it is sufficient that the use may be so'

o .xamples are the right to support a beam on another’s wall

which really exists continuously and the right of a%ueductwhich may be used only on certain days depending on theneed for water but which is continuous since its use does notdepend upon the interention of man'


74




PROPERTY NOTES

• An example of discontinuous seritude is the right of way which is used

at interals because it is physically impossible that man shall continuallypoass oer the way'

• /he easement itself# whether continuous or discontinuous# exists

continuously whether it is being used or not# but its exercise may be

continuous or discontinuous# or there may be no exercise at all'• /he distinction lies in the fact that in continuous easements# the

exercise or enjoyment can be had without the interention of man whilein discontinuous easements# such exercise or enjoyment re%uires theinterention of man'

• 4n both easements# the benefit and burden exists from the moment the

easements are created')ase doctrine

• .asements are either continuous or discontinuous according to the

manner they are exercisd# not according to the presence of apparentsigns or physical indications of the existence of such easements' /hus#an easement is continuous if its use is# or may be# incessant without theinterention of any act of man# li9e the easement of drainage5 and it is

discontinuous if it is used at interals and depends on the act of man#li9e the easement of right of way' !6ogo7Medellin )A"

Apparent and non7apparent easements

• Bor an apparent easement# it is not necessary that its sign be seen5 it is

sufficient if it may be seen or 9nown on inspection'o /he sign or signs may be encountered in the dominant or

serient estate# according to the circumstances'

• An example of a non7apparent easement is a right of way when there is

no indication of its existence'

• A right of way is apparent when there is a isible road or path to show its

exercise'

• 4n general# negatie easements are non7apparent'

Art& 010& Easements are also #ositi'e or negati'e&A #ositi'e easement is one which im#oses ,#on the owner o"

the ser'ient estate the oligation o" allowing something to e $one oro" $oing it himsel"+ an$ a negati'e easement+ that which #rohiits theowner o" the ser'ient estate "rom $oing something which he co,l$law",lly $o i" the easement $i$ not e/ist& H*..

3ositie and negatie easements

• A positie easement is one which imposes upon the owner of the

serient estate the obligation of allowing something to be done or ofdoing it himself'

o .xample8 the easement of which the right of way which

imposes upon the owner of the serient estate the duty to allow

the use of said way'• A negatie easement is that which prohibits the owner of the serient

estate from doing something which he could lawfully do if the easementdid not exist'

o .xample8 easement of light and iew whereby the owner of the

serient estate is prohibited from obstructing the passage oflight' 4t may also be positie depending upon the manner bywhich it is exercised'

• When the opening or window is made on another’s wall !wall of serient

estate" or on a party wall# the easement ac%uired is positie becausethe owner of the wall allows the seritude to burden his wall'

• 4f the window is through one’s own wall !wall of the dominant estate"

which does not extend oer another’s property !serient estate"# the

easement is negatie'

)ase doctrines

• $estrictie coenants are not# strictly spea9ing synonymous with

easements# but a case of seritudes or burdens# sometimescharacteried to be negatie easements or reciprocal negatieeasements' <egatie easement is the most common easement createdby coenant or agreement whose effect is to preclude the owner of theland from doing an act# which# if no easement existed# he would beentitled to do' !Bajardo Breedom to 6uild"

• )ourts generally iew restrictie coenants with disfaor# but still sustain

them where the coenants are reasonable# not contrary to law# or not inrestraint of trade' 4f the coenant aims to promote aesthetics# health#

and priacy or to preent oercrowding# then the coenant must besustained'

• A suit for e%uitable enforcement of a restrictie coenant can only be

made by one for whose benefit it is intended' 4t is thus not normallyenforceable by one who has no right nor interest in the land for thebenefit of which the restriction has been imposed' /hus# deeloper of asubdiision can enforce restrictions# een as against remote grantees of lots# only if he retains part of the land' !Bajardo Breedom"

Mic9ey 4ngles Ateneo :aw *;&*

:ibrat8 <o stamping please=

75




PROPERTY NOTES

Art& 012& Easements are inse#arale "rom the estate to which theyacti'ely or #assi'ely elong& H*.4

,uality of inherence or inseparability

•

eritudes are inseparable from the estate to which they actiely orpassiely belong# being accessory things whose ery existencedepends upon the principal thing !immoable"'

• Eence# they are intransmissible in the sense that they cannot be

alienated or mortgaged independently of the estate'

• An easement cannot be the object of usufruct because it has no

existence independent of the immoable to which it attaches'

• 4f the dominant estate is alienated# such alienation carries with it also

the easements established in its faor een if they are not annotated asan encumbrance on the certificate of title'

• An easement is extinguished or cut7off# howeer# by the registration of

the serient estate under the /orrens system without the easementbeing annotated on the corresponding certificate of title' A registered

owner or subse%uent purchaser of registered land holds his certificate of title free from all encumbrances except only those noted in saidcertificate and the statutory liens'

o 6ut if the existence of an easement was 9nown to the

transferee or grantee of the serient estate# such 9nowledge ise%uialent to registration'

)ase doctrines

• A endee on real property on which a seritude or an easement of right

of way exists does not ac%uire the right to close that seritude to preentthe neighboring estates from using it' !olid Manila 6io Eong"

Art& 015& Easements are in$i'isile& I" the ser'ient estate is $i'i$e$

etween two or more #ersons+ the easement is not mo$i"ie$+ an$ eacho" them m,st ear it on the #art which corres#on$s to him&I" it is the $ominant estate that is $i'i$e$ etween two or more

#ersons+ each o" them may ,se the easement in its entirety+ witho,tchanging the #lace o" its ,se+ or ma-ing it more ,r$ensome in anyother way& H*.*

,uality of indiisibility

• .asement as a right is indiisible'

• Accordingly# the partition between two or more persons of either the

serient or dominant estate does not affect the existence of theseritude which continues in its entirety'

• 4f the serient estate is diided# each new owner must bear the

easement but only with respect to the part corresponding to him'

• 4f the dominant estate is diided# each owner can exercise the wholeeasement oer each of the serient estates subject to the condition thatthe place of easement shall not be changed and the easement shall notbe more burdensome'

o A person entitled to a right of way may do whateer is

necessary to ma9e it conenient for his use but he cannotdeiate therefrom' /he easement is not considered made moreburdensome by the mere increase in the owners of thedominant estates'

Art& 017& Easements are estalishe$ either y law or y the will o" theowners& The "ormer are calle$ legal an$ the latter 'ol,ntary easements&H*.0

:egal and oluntary easements

• /his article gies the two 9inds of easements according to source'

• /he courts cannot impose or constitute any seritude where none

existed'

• /hey can only declare its existence if in reality it exists by law or by the

will of the owners'

• /here are no judicial easements'

• Foluntary easements must be recorded in the $egistry of 3roperty in

order not to prejudice third persons'

.)/4>< /W> 7 M>D. >B A),(4$4<G .A.M.</

Art& 0)9& :ontin,o,s an$ a##arent easements are ac6,ire$ either y'irt,e o" a title or y #rescri#tion o" ten years& H*.2a

Modes of ac%uiring easements&' 6y title' All easements'

a' )ontinuous and apparent easements !Art H*;"b' )ontinuous and non7apparent easements !Art H**"c' Discontinuous easements# whether apparent or non7

apparent



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PROPERTY NOTES

*' 6y prescription of ten years 2 only continuous and apparent easements-' 6y deed of recognition !Art H*-"' 6y final judgmentC' 6y apparent sign established by the owner of two adjoining estates !Art

H*"

Ac%uisition by title or prescription

• >nly continuous and apparent easements may be ac%uired either by

irtue of a title or by prescription in &; years'

• 6y title# it refers to the juridical act which gies birth to the easement#

such as law# donation# contract and will of the testator'

• /his article fixes ten years as the period of prescription# regardless of

good faith or bad faith of the possessor and whether or not he has justtitle'

• /he general rules on prescription do not apply# the only re%uirement

being that there be aderse possession of the easement for ten years'

)ase doctrines

•

3rescription as a mode of ac%uisition re%uires the existence of thefollowing8*' )apacity to ac%uire by prescription-' /hing capable of ac%uisition by prescription' 3ossession of the thing under certain conditions

• (nder claim of title !en concepto de dueno"

• 3ossession not merely tolerated by owner

C' :apse of time proided by law !<ational 3ower )orp )ampos"

Art& 0)1& In or$er to ac6,ire y #rescri#tion the easements re"erre$ toin the #rece$ing article+ the time o" #ossession shall e com#,te$th,s% in #ositi'e easements+ "rom the $ay on which the owner o" the

$ominant estate+ or the #erson who may ha'e ma$e ,se o" theeasement+ commence$ to e/ercise it ,#on the ser'ient estate( an$ innegati'e easements+ "rom the $ay on which the owner o" the $ominantestate "ora$e+ y an instr,ment ac-nowle$ge$ e"ore a notary #,lic+the owner o" the ser'ient estate+ "rom e/ec,ting an act which wo,l$ elaw",l witho,t the easement& H*.5a

)omputation of the prescriptie period

• 4f the easement is positie# the period is counted from the day on which

the owner of the dominant estate began to exercise ito Brom the day a window was built in a party wall

• 4f the easement is negatie# from the day on which a notarial prohibition

was made on the serient estate

• (nder article H**# non7apparent easements may not be ac%uired byprescription' <egatie easements are essentially non7apparent'Eoweer# article H*& proides the prescriptie period for negatieeasements' /he notarial prohibition may be ta9en as ma9ing theeasement apparent# and therefore# prescriptible'

)omputation in case of easement of light and iew

• 4f made on one’s own wall and the wall does not extend oer the

property of another# the easement is negatie because the owner ismerely exercising his inherent right of dominion and not an easement'

o /he serient owner cannot close it up5 otherwise he will be

liable for trespass'o 6ut the negatie easement is not automatically ested' /he

owner must ma9e the prohibition re%uired upon the proprietorof the adjoining land or tenement to preent him fromobstructing the light and iew'

o 4f the latter consents to such prohibition and the period fixed by

law expires# the easement will be ac%uired by prescription'/here is no true easement for as long as the right to prohibit itsexercise exists'

• 4f made through a party wall or on one’s own wall which extends oer

the neighboring estate# the easement ac%uired is positie because theowner of the latter estate who has a right to close it up allows anencumbrance on the property'

o /he period of prescription shall be counted from the time of the

opening of the window'

Art& 0))& :ontin,o,s nona##arent easements+ an$ $iscontin,o,sones+ whether a##arent or not+ may e ac6,ire$ only y 'irt,e o" a tit le&H*.7

Ac%uisition only by title

• )ontinuous and apparent easements are the only easements that can

be ac%uired by prescription because they are the only ones the



77




PROPERTY NOTES

possession of which fulfills two important re%uisites re%uired by law forprescription 2 possession be public and continuous'

• /he easements mentioned in Art H** may be ac%uired by title# not by

prescription because their possession or exercise is either not public!non7apparent" such as easement of lateral and subjacent support# or it

is public but not continuous or uninterrupted !discontinuous"# li9e a rightof way if there is a isible path'

• Eoweer# for legal purposes# the easement of a%ueduct shall be

considered as continuous and apparent# although it is not really so'

Art& 0).& The asence o" a $oc,ment or #roo" showing the origin o" aneasement which cannot e ac6,ire$ y #rescri#tion may e c,re$ y a$ee$ o" recognition y the owner o" the ser'ient estate or y a "inal !,$gment& H*49a

Art& 0)4& The e/istence o" an a##arent sign o" easement etween twoestates+ estalishe$ or maintaine$ y the owner o" oth+ shall econsi$ere$+ sho,l$ either o" them e alienate$+ as a title in or$er thatthe easement may contin,e acti'ely an$ #assi'ely+ ,nless+ at the timethe ownershi# o" the two estates is $i'i$e$+ the contrary sho,l$ e#ro'i$e$ in the title o" con'eyance o" either o" them+ or the signa"oresai$ sho,l$ e remo'e$ e"ore the e/ec,tion o" the $ee$& This#ro'ision shall also a##ly in case o" the $i'ision o" a thing owne$ incommon y two or more #ersons& H*41a

Alienation by same owner of two estates with sign of existence of seritude

• /his contemplates a situation where two estates between which there

exists an apparent sign !li9e a window or road" of an easement belongto the same owner'

• What the law re%uires is that the sign indicates the existence of a

seritude although there is no true seritude there being only one owner

• 4n case the owner alienates either of them or both with the result that the

ownership thereof is diided# the easement shall 0continue1 unless thecontrary has been stipulated in the title of coneyance of either of themor the sign remoed before the execution of the deed

o /he existence of the apparent sign is e%uialent to a title if no

objection has been made by the serient owner for an impliedcontract that the easement should be constituted is deemed toexist between the new owners

o /he dominant owner can oppose the owner of the serient

estate from doing anything which would be inconsistent withhis obligation to respect the easement

4f the lots are owned by two different owners# a

notarial prohibition should be effected !Atty Abrenica"

•

/his article applies in case of the diision of a common property by theco7owners as the effect is the same as an alienation# or there is onlyone estate and a part thereof is alienated'

• /his article is not applicable in case the two estates or portions of the

same estate remain or continue to be in the same owner after alienationor partition

)ase doctrine

• Where two adjoining estates were formerly owner by just one person

who introduced improements on both# such that the wall of the houseconstructed on the first estate extends to the wall of the camarin on thesecond estate5 and at the time of the sale of the first estate# thereexisted on the wall of the house# doors and windows !which sere as

passages for light and iew"# there being no proision in the deed ofsale that the easement of light and iew will not be established# the caseis coered by H*'

• /he existence of doors and windows on the aforesaid wall of the house

is e%uialent to a title that characteries its existence'

• 6ut while the law declares that the easement is to 0continue1# the

easement actually arises for the first time only upon alienation ofanother estate# inasmuch as before that time there is no easement tospea9 of# there being but one owner of both estates' !Gargantos /ananon"

Art& 0)*& C#on the estalishment o" an easement+ all the rightsnecessary "or its ,se are consi$ere$ grante$& H*4)

$ights granted by easement

• All easements carry with them all the rights necessary for their use and

exercise

• ince these accessory rights or accessory easements exist solely by

irtue of and for the use of the seritude which can be considered as theprincipal one# they cease upon the termination of the seritude



78




PROPERTY NOTES

Art& 0)0& The owner o" the $ominant estate cannot ,se the easemente/ce#t "or the ene"it o" the immo'ale originally contem#late$&Neither can he e/ercise the easement in any other manner than that#re'io,sly estalishe$& Hn

4mmoable to be benefited by easement# and manner of its exercise

• /he rule in the first sentence is just because if the owner of the

dominant estate is allowed to use the seritude for the benefit of otheradjoining lands subse%uently ac%uired# or for others# that would ma9ethe easement more onerous and beyond the intention of the parties

• 4f the easement has been constituted in general terms# only the rights

which are reasonably necessary and conenient for the usecontemplated and would case the least burden to the serient estate aregranted'

• Where the purpose of the easement or the manner of its exercise is

defined by the title creating it# the exercise of the easement must beconsistent with such purpose or manner

.)/4>< /E$.. 2 $4GE/ A<D >6:4GA/4>< >B /E.>W<.$ >B /E. D>M4<A</ A<D .$F4.</ ./A/. Art& 0)2& The owner o" the $ominant estate may ma-e+ at his owne/#ense+ on the ser'ient state any wor-s necessary "or the ,se an$#reser'ation o" the ser'it,$e+ ,t witho,t altering it or ren$ering itmore ,r$ensome&3or this #,r#ose he shall noti"y the owner o" the ser'ient estate+ an$shall choose the most con'enient time an$ manner so as to ca,se theleast incon'enience to the owner o" the ser'ient estate& H*4.a

What are the rights of the dominant owner?&' .xercise all the rights necessary for the use of the easement*' Ma9e on the serient estate all wor9s necessary for the use and

preseration of the seritude-' $enounce the easement if he desires to exempt himself from the

contribution to necessary expenses' As9 for mandatory injunction to preent impairment of his of the

easement

What are the obligations of the dominant owner?&' )annot alter the easement or render it more burdensome

*' <otify the serient owner of wor9s necessary for the use andpreseration of the seritude

-' )hoose the most conenient time and manner in ma9ing the necessarywor9s as to cause the least inconenience to the serient owner

' )ontribute to the necessary expenses if there are seeral dominantestates in proportion to the benefits deried from the wor9s

What are the rights of the serient owner?&' $etain the ownership of the portion of the estate on which the easement

is established*' Ma9e use of the easement# unless there is an agreement to the contrary-' )hange the place or manner of the use of the easement# proided it be

e%ually conenient

What are the obligations of the serient owner?&' )annot impair the use of the easement*' )ontribute to the necessary expenses in case he uses the easement#

unless there is an agreement to the contrary

$ight of the dominant owner to ma9e necessary wor9s• $ight granted by H*I is subject to the following conditions8

&' Wor9s shall be at his expense and are necessary for the use andpreseration of the seritude

*' /hey do not alter or render the seritude more burdensome5-' /he dominant owner# before ma9ing the wor9s# must notify the

serient owner# and' /hey shall be done at the most conenient time and manner as to

cause the lease inconenience to the serient owner

)ase doctrine

• !Goldcrest )ypress Gardens"

Art& 0)5& Sho,l$ there e se'eral $ominant estates+ the owners o" all o"them shall e olige$ to contri,te to the e/#enses re"erre$ to in the#rece$ing article+ in #ro#ortion to the ene"its which each may $eri'e"rom the wor-& Any one who $oes not wish to contri,te may e/em#thimsel" y reno,ncing the easement "or the ene"it o" the others&

I" the owner o" the ser'ient estate sho,l$ ma-e ,se o" theeasement in any manner whatsoe'er+ he shall also e olige$ tocontri,te to the e/#enses in the #ro#ortion state$+ sa'ing anagreement to the contrary& H*44



79




PROPERTY NOTES

>bligation to contribute to expenses of necessary wor9s/his article contemplates seeral dominant estates'

• All the owners shall share the expenses in proportion to the benefits

deried by each estate from the wor9s and not in proportion to their

respectie interests' /he benefits shall be presumed e%ual in theabsence of any agreement or proof to the contrary' /he easement ofright of way ordinarily gies the same benefit

• An owner may exempt himself from contributing to the expenses by

renouncing the easement in faor of the others'

• What about the serient owner? Well# he shall be obliged to contribute

to the expense except when there is a stipulation to the contrary# shouldhe ma9e use of the easement in any manner whatsoeer' 4f he boundhimself to bear the cost of the wor9# he may free himself form theobligation by renouncing his property to the dominant owner !Art HK-"

Art& 0)7& The owner o" the ser'ient estate cannot im#air+ in any mannerwhatsoe'er+ the ,se o" the ser'it,$e&

Ne'ertheless+ i" y reason o" the #lace originally assigne$+ oro" the manner estalishe$ "or the ,se o" the easement+ the samesho,l$ ecome 'ery incon'enient to the owner o" the ser'ient estate+or sho,l$ #re'ent him "rom ma-ing any im#ortant wor-s+ re#airs orim#ro'ements thereon+ it may e change$ at his e/#ense+ #ro'i$e$ heo""ers another #lace or manner e6,ally con'enient an$ in s,ch a waythat no in!,ry is ca,se$ therey to the owner o" the $ominant estate orto those who may ha'e a right to the ,se o" the easement& H*4*

>bligation of serient owner not to impair seritude

• /he serient owner may abstain from constructing wor9s or performing

any act which will impair# in any manner whatsoeer# the use of theseritude'

• An injunction lies at the instance of the dominant owner to prohibit the

serient owner from impairing the use of the seritude

$ight of serient owner to change place or manner of easement

• While the serient estate cannot impair the use of the seritude# he may

change at his expense the place or manner for its use proided thefollowing re%uisites are present8&' /he place or manner has become ery inconenient to him or

preents him from ma9ing important wor9s thereon5

*' Ee offers another place or manner e%ually conenient5 and-' <o injury is caused by the chance to the dominant owner or to

whoeer may hae a right to the use of the easement'

Art& 0.9& The owner o" the ser'ient estate retains the ownershi# o" the#ortion on which the easement is estalishe$+ an$ may ,se the same ins,ch a manner as not to a""ect the e/ercise o" the easement& Hn

$ight of serient owner to use easement

• /he serient owner preseres his dominion oer the portion of his estate

on which the easement is established

• /his is true although the indemnity consists of the alue of the land

occupied and the amount of the damage to the serient estate !Art HK"

• Ee may use the easement subject to the condition that he does not

impair the rights of the dominant owner'

)ase doctrine

• When the trial court found that the person’s right to continue to use the

septic tan9 ceased upon the subdiision of the land and its subse%uentsale to different owners who do not hae the same interest# theupreme )ourt said that this is contrary to law' !/anedo 6ernad"

.)/4>< B>($ 2 M>D. >B .Q/4<G(4EM.</ >B.A.M.</

Art& 0.1& Easements are e/ting,ishe$%H1 =y merger in the same #erson o" the ownershi# o" the

$ominant an$ ser'ient estates(H) =y non,ser "or ten years( with res#ect to $iscontin,o,s

easements+ this #erio$ shall e com#,te$ "rom the $ay on which theycease$ to e ,se$( an$+ with res#ect to contin,o,s easements+ "rom

the $ay on which an act contrary to the same too- #lace(H. <hen either or oth o" the estates "all into s,ch con$itionthat the easement cannot e ,se$( ,t it shall re'i'e i" the s,se6,entcon$ition o" the estates or either o" them sho,l$ again #ermit its ,se+,nless when the ,se ecomes #ossile+ s,""icient time "or #rescri#tionhas ela#se$+ in accor$ance with the #ro'isions o" the #rece$ingn,mer(

H4 =y the e/#iration o" the term or the ",l"illment o" thecon$ition+ i" the easement is tem#orary or con$itional(



80




PROPERTY NOTES

H* =y the ren,nciation o" the owner o" the $ominant estate(H0 =y the re$em#tion agree$ ,#on etween the owners o" the

$ominant an$ ser'ient estates& H*40a

What are the modes of extinguishment of easements?&' 6y merger

• 4t is not necessary that it be with respect to the full extent of the

tenement but only with respect to that part affected by the seritudeor that part for the benefit of which the seritude was established

• /he merger must be absolute and complete in one and the same

person and not by irtue of other real rights less than full ownership'!where the merger is temporary# as when it is subject to a resolutorycondition# there is only a suspension but not an extinguishment ofthe seritude'"

• 4f the serient owner becomes a co7owner of the dominant estate#

there is no merger for he has ac%uired only a part interest therein'

• 4f the dominant sells a retro the whole immoable to the serient#

the easement is not extinguished but only suspended' /he

seritude is reied when the dominant redeems the property'• What if the dominant sells absolutely to the seritude# buys it bac9#

then sells it to a third person' /here is no reial here because itwas already unconditionally extinguished by the sale of the propertyto the serient' 6ut if the sale to serient by dominant wasrescinded or annulled# there is no extinguishment by merger'

*' 6y non7user for ten years

• /his mode is applicable only to easements that hae been in use

and later abandoned# for one cannot discontinue using what onehas neer used

• ome legal easements !natural drainage" may be extinguished by

non7user# but only with respect to the actual form or manner inwhich they had been exercised# and the right or the power to claim

the exercise of legal easements does not prescribe# as occursespecially in the case of the right of way and easement ofa%ueduct' !Brancisco 3ae"

• 4f the easement is discontinuous !right of way"# the period of ten

years shall be computed from the day it ceased to be used'

• 4f continuous !natural drainage"# from the day on which an act

contrary to the same too9 place !li9e construction of a dam whichbloc9s natural drainage"

• /he non7use must be oluntary on the part of the dominant owner

and not due to fortuitous eents beyond his control unless the non7use is due to the impossibility of use under no -

• What’s the basis? Well# it’s presumptie renunciation'

o o# the proof of non7user must be undubitable particularly

where the easement is perpetual in character because ofits annotation in the /orrens title' /hus# the mere non7useof a passageway by the dominant owner who has gaineddirect access to another way does not extinguish theeasement of right of way' 4n the absence of any eidencethat could point to mutual agreement to the discontinuanceof the easement annotated on the title# its continuedexistence must be upheld

• /he use by a co7owner of the dominant estate benefits all the other

co7owners and preents prescription as to them'-' 4mpossibility of use

• When the condition of either or both of the estates which ma9es

impossible the use of the easement is irreparable# whether caused

by fortuitous eents or not# the seritude is absolutely extinguishedo >therwise# the impossibility of use merely suspends the

seritude until such time when it can be used again

' 6y expiration of term or fulfillment of resolutory conditionC' 6y renunciation

• /he renunciation or waier must be specific# clear and express'

• /his is particularly true for discontinuous easements such as right

of way'

• /he waier must be at least such as may be obiously gathered

from positie acts 2 if not formal and solemn' /he mere refrainingfrom claiming the right# without any positie acts imply a real waier#is not sufficient for the purpose although it may constitute non7use'

A clear case of implied waier is the act of coering up a window bythe dominant owner and yet this act does not ipso %acto extinguishthe easement# but only seres to ma9e the starting point forprescription' !Brancisco 3ae"

• Where the easement is in faor of a particular group of persons# the

oluntary renunciation thereof by some of them will not affect theright of the others'

H' 6y redemption



81


PROPERTY NOTES



PROPERTY NOTES

• it must be by irtue of an agreement between the owners of the

dominant and serient estates under which the seritude would beextinguished

I' 6y other causes

• Annulment# rescission# abandonment# etc

•

$egistration of the serient estate under the /orrens system withoutthe easement being annotated in the title

ome case doctrines

• Alienation of the dominant and serient estates to different persons is

not one of the grounds for extinguishment of the easement' !/anedo 6ernad"

• Absent a statement abolishing or extinguishing the easement# then the

easement is continued by operation of law' !/anedo 6ernad"

• An easement is perpetual in character when it is annotated on all the

transfer certificates of title issued' ince there is no eidence that wouldpoint to a mutual agreement between any of the parties with respect tothe discontinuance or obliteration of the easement annotated on the

titles# the continued existence of the easement must be upheld andrespected' !6enedicto )A"

• <68 When the easement is a legal easement# it need not be annotated

in the title' A legal easement is one mandated by law# constituted forpublic use or for priate interest and becomes a continuing propertyright' 4t is inseparable from the estate to which it belongs' o# there’s noneed to annotate in the title' !Fillanuea Felasco"

• A oluntary easement of right of way# li9e any other contract# could be

extinguished only by mutual agreement or by renunciation of the ownerof the dominant estate' As it is li9e any other contract# it is generallyeffectie between the parties# their heirs and assigns# except in casewhere the rights and obligations arising from the contract are nottransmissible by their nature# or by stipulation# or by proision of law'

!(nisource )hung# *;;K"• 4f there are easement or other rights appurtenant to a parcel of

registered land which for any reason hae failed to be registered# sucheasement or rights shall remain so appurtenant notwithstanding suchfailure# and shall be held to pass with the land until cut off orextinguished by the registration of the serient estate or in any othermanner' An easement is cut off or extinguished by the registration of theserient estate under the /orrens system without the easement being

annotated on the corresponding certificate of title# pursuant to ec -K of Act KH !3urugganan 3aredes"

o .Q).3/4><8 When the person who registers the serient

estate has A)/(A: 9nowledge that an easement exists'!>ne can’t rely on the face of the title if one has actual9nowledge of facts which should compel him to do furtherinestigation"

Art& 0.)& The "orm or manner o" ,sing the easement may #rescrie asthe easement itsel"+ an$ in the same way& H*42a

3rescription of form or manner of using easement

• /he form or manner !or mode" of using the easement is different from

the easement itself or the right to exercise it

• 6oth may be lost by prescription

• ome legal easements# howeer# do not prescribe but the form or

manner of using all easements including legal easements may be lost or ac%uired by prescription

Art& 0..& I" the $ominant estate elongs to se'eral #ersons in common+the ,se o" the easement y any one o" them #re'ents #rescri#tion withres#ect to the others& H*45

Where dominant estate owned in common

• .asements are indiisible

• Eence# the use by a co7owner inures to the benefit of all the other co7

owners and preents prescription as to shares of the latter

• 4n other words# the use by a co7owner is deemed to be used by each

and all the co7owners

:;APTER )

LE>AL EASEMENTS .)/4>< ><. 2 G.<.$A: 3$>F44>< Art& 0.4& Easements im#ose$ y law ha'e "or their o!ect either #,lic,se or the interest o" #ri'ate #ersons& H*47

What is legal easement?



82


PROPERTY NOTES



PROPERTY NOTES

• :egal easements are easements imposed or mandated by law# and

which hae for their object8o either public use or

o the interest of priate properties

• /hey become a continuing property right

Ninds of legal easements&' 3ublic legal easements or those for public or communal use*' 3riate legal easements or those for the interest of priate persons or

for priate use# which include those relating toa' Watersb' $ight of wayc' 3arty walld' :ight and iewe' Drainagef' 4ntermediate distancesg' Against nuisanceh' :ateral and subject support

)ase doctrine

• ee Fillanuea Felasco cited in Art H-&

Art& 0.*& All matters concerning easements estalishe$ "or #,lic orcomm,nal ,se shall e go'erne$ y the s#ecial laws an$ reg,lationsrelating thereto+ an$+ in the asence thereo"+ y the #ro'isions o" thisTitle& H**9

Art& 0.0& Easements estalishe$ y law in the interest o" #ri'ate#ersons or "or #ri'ate ,se shall e go'erne$ y the #ro'isions o" thisTitle+ witho,t #re!,$ice to the #ro'isions o" general or local laws an$or$inances "or the general wel"are&

These easements may e mo$i"ie$ y agreement o" theintereste$ #arties+ whene'er the law $oes not #rohiit it or no in!,ry iss,""ere$ y a thir$ #erson& H**1a Goerning laws&' 3ublic legal easements 2 they are goerned primarily by the special

laws and regulations relating thereto# and by the )iil )ode !H-7HI"#inclusie'

*' 3riate legal easements

a' 6y agreement of the interested parties proided it is notprohibited by law or injurious to a third person

b' 4n the absence of agreement# by the proisions of generaland local laws and ordinances for the general welfare5 and

c' 4n default of a and b# by articles H- to HI# inclusie ofthe )iil )ode'

)ase doctrine

• Where the land was originally public land# and awarded by free patent

with a reseration for a legal easement of a right7of7way in faor of thegoernment# just compensation need not be paid for the ta9ing of a partthereof for public use as an easement of a right of way# unli9e if the landwere originally priate property' !<4A )A"

.)/4>< /W> 2 .A.M.</ $.:A/4<G /> WA/.$ Art& 0.2& Lower estates are olige$ to recei'e the waters whichnat,rally an$ witho,t the inter'ention o" man $escen$ "rom the higherestates+ as well as the stones or earth which they carry with them&

The owner o" the lower estate cannot constr,ct wor-s whichwill im#e$e this easement( neither can the owner o" the higher estatema-e wor-s which will increase the ,r$en& H**)

:egal easements relating to waters&' <atural drainage !H-I"*' Drainage of buildings !HI"-' .asement on riparian ban9s for naigation# floatage# fishing# salage#

and towpath !H-"' .asement of a dam !H-K# HI"C' .asement for drawing water or for watering animals !H;7H&"H' .asement of a%ueduct !H*7HH"I' .asement for the construction of a stop loc9 or sluice gate !HI"

<atural drainage of lands

• /his article imposes a natural easement upon the lower estates which

are obliged to receie the waters which naturally and without theinterention of man descend from the higher estates# as well as thestones or earth carried by the waters'

• /his easement is a continuous one and may be extinguished by non7

user for the period of &; years re%uired by law' /hus# if a di9e was



83


PROPERTY NOTES



PROPERTY NOTES

constructed by the serient owner !an act contrary to the easement"# theaction to destroy the di9e is barred if brought only after & years'

• Duty of serient owner 2 the owner of the lower estate cannot construct

wor9s which will impede this easement# such as walls# ditches orfences# or a dam which bloc9s the natural flow of the waters' /he

dominant owner may demand their remoal or destruction and recoerdamages' /he serient owner may construct wor9s to regulate the flowof waters# but not those which will impede the easement'

• Duty of dominant owner 2 the owner of the higher tenement cannot

ma9e wor9s which will increase the burden' 4f the waters are the resultof artificial deelopment# or are the oerflow from irrigation dams# orproceed from industrial establishments recently set up# the owner of thelower estate shall be entitled to compensation for his loss or damage'

o 6ut the dominant owner is not prohibited from cultiating

his land or constructing wor9s to regulate the descent ofthe waters to preent erosion to his land and as long as hedoes not impede the natural flow of the waters andincrease the burden of the lower estate# he is not liable fordamages'

$emember $emman )A? /he case with the pig shit? 4t also said that taxreturns per se could not reflect the total amount of damages suffered by aparty# as income losses from a portion of his property could be offset by anyprofit deried from the rest of said property or from other sources of income'

Art& 0.5& The an-s o" ri'ers an$ streams+ e'en in case they are o"#ri'ate ownershi#+ are s,!ect thro,gho,t their entire length an$ withina one o" three meters along their margins+ to the easement o" #,lic,se in the general interest o" na'igation+ "loatage+ "ishing an$ sal'age&

Estates a$!oining the an-s o" na'igale or "loatale ri'ersare+ ",rthermore+ s,!ect to the easement o" tow#ath "or the e/cl,si'eser'ice o" ri'er na'igation an$ "loatage&

I" it e necessary "or s,ch #,r#ose to occ,#y lan$s o" #ri'ateownershi#+ the #ro#er in$emnity shall "irst e #ai$& H**.a

3ublic easements on ban9s of rier

• 6an9s of riers and streams# whether they are of public or priate

ownership# are subject to easement of public use for8&' <aigation*' Bloatage-' Bishing

' alageC' With respect to estates adjourning ban9s of naigable riers# also to

easement of towpath'

• 4f the land is of public ownership# there is no indemnity5 if of priate

ownership# the proper indemnity shall first be paid before it may be

occupied' $iparian owners cannot be re%uired to subject their propertyto the easement for the benefit of the public without prior indemnity'

• /he width of the one subject to the easement is - meters throughout

the entire length of the ban9 along its margin'

• /he easement established by Article H- does not apply to canals or

esteros'

Art& 0.7& <hene'er "or the $i'ersion or ta-ing o" water "rom a ri'er orroo-+ or "or the ,se o" any other contin,o,s or $iscontin,o,s stream+it sho,l$ e necessary to ,il$ a $am+ an$ the #erson who is toconstr,ct it is not the owner o" the an-s+ or lan$s which m,st s,##ortit+ he may estalish the easement o" a,tment o" a $am+ a"ter #aymento" the #ro#er in$emnity& H**4

Abutment of buttress of a dam

• A person who needs to build a dam to diert or ta9e water from a rier or

broo9 but is not the owner of the ban9s or lands which must support thedam# may be allowed the easement of abutment or buttress of a dam!estribo de presa"

• Ee must see9 the permission of the owner# and in case of the latter’s

refustal# he must secure authority from the proper administratie agencywhich will conduct the necessary inestigation in which all interestedparties are gien opportunity to be heard' 4n establishing the easement#the proper indemnity must be paid'

• Where the construction of a dam is unauthoried# the same can be

considered a priate nuisance and may be lawfully destroyed orremoed by the injured landowner or by any persona acting under hisdirections'

)ase doctrine

• An easement of buttress can be imposed by administratie authority

with respect to land lying adjacent to public or priate waters5 but insuch case it is re%uired that an inestigation of record shall be madebefore the easement of buttress is decreed' /he ma9ing of the



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PROPERTY NOTES

inestigation of record is an essential prere%uisite to the exercise of thepower' !olis 3ujeda"

Art& 049& :om#,lsory easements "or $rawing water or "or wateringanimals can e im#ose$ only "or reasons o" #,lic ,se in "a'or o" atown or 'illage+ a"ter #ayment o" the #ro#er in$emnity& H***

Art& 041& Easements "or $rawing water an$ "or watering animals carrywith them the oligation o" the owners o" the ser'ient estates to allow#assage to #ersons an$ animals to the #lace where s,ch easementsare to e ,se$+ an$ the in$emnity shall incl,$e this ser'ice& H**0

Drawing water or watering animals

• /his is a personal easement which includes the accessory easement of

passage or right of way of persons and animals to the place where theeasement is to be used'

• $e%uisites are8

&' Must be imposed for reasons of public use5*' Must be in faor of a town or illage5 and

-' Must be payment of proper indemnity'

Art& 04)& Any #erson who may wish to ,se ,#on his own estate anywater o" which he can $is#ose shall ha'e the right to ma-e it "lowthro,gh the inter'ening estates+ with the oligation to in$emni"y theirowners+ as well as the owners o" the lower estates ,#on which thewaters may "ilter or $escen$& H**2

Art& 04.& One $esiring to ma-e ,se o" the right grante$ in the #rece$ingarticle is olige$%

H1 To #ro'e that he can $is#ose o" the water an$ that it iss,""icient "or the ,se "or which it is inten$e$(

H) To show that the #ro#ose$ right o" way is the mostcon'enient an$ the least onero,s to thir$ #ersons(

H. To in$emni"y the owner o" the ser'ient estate in the manner $etermine$ y the laws an$ reg,lations& H**5

Art& 044& The easement o" a6,e$,ct "or #ri'ate interest cannot eim#ose$ on ,il$ings+ co,rtyar$s+ anne/es+ or o,tho,ses+ or onorchar$s or gar$ens alrea$y e/isting& H**7

.asement of a%ueductJ what is it?=

• .asement of a%ueduct is the right arising from a forced easement by

irtue of which the owner of an estate who desires to aail himself ofwater for the use of said estate may ma9e such waters pass through theintermediate estate with the obligation of indemnifying the owner of thesame and also the owner of the estate to which the water may filter orflow'

• /he easement is proided in Article H*' 4t gies the right to ma9e water

flow through or under interening or lower estates'

$e%uisites?/he person desiring to ma9e use of the easement must8&' 3roe that he has the capacity to dispose of the water5*' 3roe that the water is sufficient for the use intended5-' how that the proposed right of way is the most conenient and the

least onerous to third persons5 and' 3ay indemnity to the owner of the serient estate'

• 6ut where the number of years that hae elapsed since the

easement had first come into existence and the subse%uentchanges in ownership of lots inoled would ma9e it impossibleto present proof of indemnity to the owner of the serientestate# this re%uisite has been deemed to be complied with'!alaar Gutierre"

• /he easement cannot be imposed oer buildings# courtyards# annexes

or gardens if the easement is for priate interest'

)ase doctrines

• /he panish :aw of Waters allows the creation of a compulsory

easement of a%ueduct for the purpose of establishing or extending anirrigation system# and there is nothing to the contrary in the )iil )ode'

• /he registration of the serient lot without the corresponding registration

of the easement of a%ueduct on the title cannot summarily terminate it-; years thereafter where the original registered owner of the serientlot allowed the easement to continue in spite of such non7registration'

• /he least that can be said is that he either recognied its existence as a

compulsory seritude on his estate or oluntarily agreed to itsestablishment and continuance' And subse%uent purchasers of theserient estate cannot capitalie on the absence of annotation on thetitle where they are aware of the existence of the easement and li9ewise



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PROPERTY NOTES

allowed it to continue for *H years after they ac%uired title' !alaar Gutierre"

Art& 04*& The easement o" a6,e$,ct $oes not #re'ent the owner o" theser'ient estate "rom closing or "encing it+ or "rom ,il$ing o'er thea6,e$,ct in s,ch manner as not to ca,se the latter any $amage+ orren$er necessary re#airs an$ cleanings im#ossile& H*09

$ight of owner of serient estate

• /he serient owner may close or fence his estate# or build oer the

a%ueduct so long as no damage is caused to the a%ueduct or thenecessary repairs and cleaning of the same are not renderedimpossible'

• Ee can construct wor9s he may deem necessary to preent damage to

himself proided he does not impede or impair# in any mannerwhatsoeer# the use of the easement 2 just li9e the owner of the lowerestate on which an easement of natural drainage has been established'4f he does impair# the dominant owner may as9 for the remoal ordestruction of such wor9s with a right to indemnity for damages'

Art& 040& 3or legal #,r#oses+ the easement o" a6,e$,ct shall econsi$ere$ as contin,o,s an$ a##arent+ e'en tho,gh the "low o" thewater may not e contin,o,s+ or its ,se $e#en$s ,#on the nee$s o" the$ominant estate+ or ,#on a sche$,le o" alternate $ays or ho,rs& H*01

.asement considered as continuous and apparent

• Bor legal purposes# the easement is considered continuous and

apparent and therefore# may be susceptible of ac%uisitie prescription'

Art& 042& One who "or the #,r#ose o" irrigating or im#ro'ing his estate+has to constr,ct a sto# loc- or sl,ice gate in the e$ o" the stream"rom which the water is to e ta-en+ may $eman$ that the owners o" the

an-s #ermit its constr,ction+ a"ter #ayment o" $amages+ incl,$ingthose ca,se$ y the new easement to s,ch owners an$ to the otherirrigators& H*0)

)onstruction of a stop loc9 or sluice gate

• 4n Article H-K# the purpose of building a dam is to diert water from a

rier or broo9' Eere# the purpose of the construction is to ta9e water forirrigation# or to improe an estate'

• 4n both cases# the construction is on the estate of another and proper

indemnity has to be paid' Burthermore# no damage must be caused tothird persons'

Art& 045& The estalishment+ e/tent+ "orm an$ con$itions o" theser'it,$es o" waters+ to which this section re"ers+ shall e go'erne$ ythe s#ecial laws relating thereto inso"ar as no #ro'ision there"or isma$e in this :o$e& H*0.a

.)/4>< /E$.. 2 .A.M.</ >B $4GE/ >B WA Art& 047& The owner+ or any #erson who y 'irt,e o" a real right mayc,lti'ate or ,se any immo'ale+ which is s,rro,n$e$ y otherimmo'ales #ertaining to other #ersons an$ witho,t a$e6,ate o,tlet toa #,lic highway+ is entitle$ to $eman$ a right o" way thro,gh theneighoring estates+ a"ter #ayment o" the #ro#er in$emnity&

Sho,l$ this easement e estalishe$ in s,ch a manner that its,se may e contin,o,s "or all the nee$s o" the $ominant estate+estalishing a #ermanent #assage+ the in$emnity shall consist o" the'al,e o" the lan$ occ,#ie$ an$ the amo,nt o" the $amage ca,se$ to

the ser'ient estate&In case the right o" way is limite$ to the necessary #assage "or

the c,lti'ation o" the estate s,rro,n$e$ y others an$ "or the gatheringo" its cro#s thro,gh the ser'ient estate witho,t a #ermanent way+ thein$emnity shall consist in the #ayment o" the $amage ca,se$ y s,chenc,mrance&

This easement is not com#,lsory i" the isolation o" theimmo'ale is $,e to the #ro#rietorJs own acts& H*04a

Art& 0*9& The easement o" right o" way shall e estalishe$ at the #ointleast #re!,$icial to the ser'ient estate+ an$+ inso"ar as consistent withthis r,le+ where the $istance "rom the $ominant estate to a #,lichighway may e the shortest& H*0*

.asement of right of wayJ D.B4<.D=

• .asement of right of way is the right granted by law to the owner of an

estate which is surrounded by other estates belonging to other personsand without an ade%uate outlet to a public highway to demand that hebe allowed a passageway throughout such neighboring estates afterpayment of the proper indemnity'

$e%uisites of the easment !based on de :eon"



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PROPERTY NOTES

&' )laimant must be an owner of enclosed immoable or one with realright

*' <o ade%uate outlet to a public highway-' $ight of way must be absolutely necessary' /he isolation must not be due to the claimant’s own actC' /he easement must be established at the point least prejudicialH' /here must be payment of proper indemnity

)laimant must be an owner of enclosed immoable or one with real right

• <ot only the owner but any person who by irtue of a real right may

cultiate or use an immoable# may demand a right of way' Ausufructuary may demand a right of way'&' A mortgagee is not entitled to demand because it is necessary that

the land be cultiated or used by irtue of a right li9e that of ausufruct

*' A mere lessee cannot demand the legal seritude of way becausehis action is against the lessor who is bound to maintain him in theenjoyment of the lease' Eoweer# if the lessee registers the lease in

the $egistry of 3roperty# it becomes a real right# and the lesseewould then be entitled to demand the right of way'

<o ade%uate outlet to a public highway

• )oers cases when there is absolutely no outlet or access# or een

when there is one# the same is not ade%uate !li9e when it’s dangerous#ery costly# etc"

• /he owner of the serient estate cannot obstruct the use of the

easement if the proposed new location for it is farther and is not asconenient'

$ight of way must be absolutely necessary

• /he right cannot be claimed merely for the conenience of the owner of

the enclosed estate'• >wner must show that the compulsory easement is absolutely

necessary for the normal enjoyment of his property' .en if necessarybut it can be satisfied without imposing the seritude# the same shouldnot be imposed'

• /he easement can be established for the benefit of a tenement with an

inade%uate outlet# but not when the outlet is merely inconenient'

4solation must not be due to the claimant’s own act

• 4f he constructs a permanent structure and effectiely bloc9s himself out

from the pubic highway# then he is stupid and he will not be granted aneasement'

/he easement must be established at the point least prejudicial to theserient estate

• /he shortest is not always the least prejudicial'

• /he criterion of least prejudicial shall be obsered although the distance

may not be the shortest or is een the longest'

• 4n other words# this is the /./ 7 the one where the way is shortest and

will cause the least damage should be chosen'o 6ut if these two circumstances do not concur in a single

tenement# the way which will cause the least damage shouldbe used# een if it would not be the shortest'

6etween a right of way that will demolish a house and

another one which will merely cut down a tree !yet is alonger route to the highway"# the latter shall preail'

•

/he rule is different in eminent domain proceedings wherein the granteeof the power of eminent domain can choose as he pleases# as long as itis not capricious and wantonly injurious'

3roper indemnity

• /he right can be ac%uired only after the proper indemnity has been paid'

• 4f the passage is of continuous and permanent nature !continuous for all

the needs of the dominant estate"# the indemnity consists of the alue of the land occupied plus amount of damages caused to the serientestate5 and

• 4f it is temporary !limited to the necessary passage for the cultiation of

the enclosed estate and for the gathering of its crops through theserient estate"# indemnity consists in the payment of the damage

caused to the serient estate'• .en if the easement is for a laudable purpose# there is still a need for

compensation'

• 6(/J

o Where the land was originally public land# and awarded by free

patent and was registered with an >)/ and /)/ with areseration for a legal easement of a right7of7way in faor ofthe goernment# just compensation need not be paid for theta9ing of a part thereof for public use as an easement of a right



87


PROPERTY NOTES



PROPERTY NOTES

of way# unli9e if the land were originally priate property' !<4A )A"

What are the 9inds of easements of right of way?&' 3riate# when it is established in faor of a priate person# such as the

right granted in Article HK5 or *' 3ublic# when it is aailable in faor of the community or the public at

large'

Ac%uisition and extinguishment by prescription

• /he easement of right of way# being discontinuous# cannot be ac%uired

ny prescription' 4t may be apparent# but it is not a continuous easement'

• De :eon gies some reasons why the easement of right of way should

be considered as continuous in page ; of his boo9'

)ase doctrines

• $e%uisites of the easement !based on Falde /abisula5 :ee#

Fillanuea5 etc"&' )laimant must be an owner of enclosed immoable or one with real

right*' 3roperty is surrounded by other immoables and has no ade%uate

outlet to a public highway-' 3roper indemnity must be paid' /he isolation is not the result of the owner of the dominant estate’s

own actsC' /he right of way claimed is at the least prejudicial to the serient

estateH' /o the extent consistent with the foregoing rule# the distance from

the dominant estate to a public highway may be the shortest'

• /he onus of proing the existence of these re%uisites lies on the owner

of the dominant estate'

• $e%uisites na naman; !based on Mejorada Fertudao"

&' /he estate is surrounded by other immoables and is withoutade%uate outlet to a public highway5

*' After payment of the proper indemnity-' /he isolation was not due to the proprietor’s acts5 and' /he right of way claimed is at a point least prejudicial to the serient

estate'

• >ne whose land is enclosed by the lands of others at one ac%uires the

right to demand an easement of way to the nearest street or road# but

his failure to do so does not constitute a renunciation of his right nordoes the right to demand such easement prescribe under Article H-&'/he right to demand a right of way is imprescriptible' !Brancisco 3ae"

Art& 0*1& The wi$th o" the easement o" right o" way shall e that whichis s,""icient "or the nee$s o" the $ominant estate+ an$ may accor$inglye change$ "rom time to time& H*00a

Width of the passage

• 4t is the needs of the dominant property which ultimately determine the

width of the passage# and these needs may ary from time to t ime'

• /he easement established may thus be changed or modified from time

to time as the subse%uent needs of the dominant estate may demand'

Art& 0*)& <hene'er a #iece o" lan$ ac6,ire$ y sale+ e/change or#artition+ is s,rro,n$e$ y other estates o" the 'en$or+ e/changer+ orcoowner+ he shall e olige$ to grant a right o" way witho,t in$emnity&

In case o" a sim#le $onation+ the $onor shall e in$emni"ie$ y

the $onee "or the estalishment o" the right o" way& H*02a

Art& 0*.& In the case o" the #rece$ing article+ i" it is the lan$ o" thegrantor that ecomes isolate$+ he may $eman$ a right o" way a"ter#aying a in$emnity& ;owe'er+ the $onor shall not e liale "orin$emnity& Hn

Where land of transferor or transferee enclosed

• /hese two articles are exceptions to the re%uirement in Article HK

regarding the payment of indemnity'

• 4f the land transferred is surrounded by other estates of the endor#

exchanger or co7owner# the transferee is not obliged to pay indemnityfor the easement as the consideration for the transfer is presumed to

include the easement without the indemnity'o 4f the right of way becomes useless for some reason or

another# it is no longer than transferor’s fault' Apply Article H*'o Article HC* is not applicable in case of simple donation

because the donor receies nothing for his property'

• 4f it is the land of the grantor that becomes isolated# he may demand a

right of way but shall be obliged to pay indemnity unless the purchaseragreed to grant right without indemnity'



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o /he donor shall not be liable for indemnity as it is considered a

tacit condition of the donation'

Art& 0*4& I" the right o" way is #ermanent+ the necessary re#airs shall ema$e y the owner o" the $ominant estate& A #ro#ortionate share o" theta/es shall e reim,rse$ y sai$ owner to the #ro#rietor o" theser'ient estate& Hn

$esponsibility for repairs and taxes

• /his applies if the right of way is permanent'

• /he serient owner retains ownership of the passageway5 hence# he

pays all the taxes'

• /he dominant owner is liable for the necessary repairs and the

proportionate share of the taxes paid by the serient owner# meaningthe amount of taxes corresponding to the portion on which theeasement is established'

Art& 0**& I" the right o" way grante$ to a s,rro,n$e$ estate ceases to enecessary eca,se its owner has !oine$ it to another a,tting on a#,lic roa$+ the owner o" the ser'ient estate may $eman$ that theeasement e e/ting,ishe$+ ret,rning what he may ha'e recei'e$ yway o" in$emnity& The interest on the in$emnity shall e $eeme$ to ein #ayment o" rent "or the ,se o" the easement&

The same r,le shall e a##lie$ in case a new roa$ is o#ene$gi'ing access to the isolate$ estate&

In oth cases+ the #,lic highway m,st s,stantially meet thenee$s o" the $ominant estate in or$er that the easement may ee/ting,ishe$& H*05a

.xtinguishment of compulsory easement of right of way

• /his applies to compulsory easement of right of way'

• /he two causes of extinguishment are8

&' /he joining of the isolated estate to another abutting a public road#and

*' >pening a new road which gies access to the estate'

• /he new outlet must be ade%uate'

• /he extinguishment is not automatic because the law says that the

owner of the serient estate may demand that the easement beextinguished# if he so desires' o# the dominant owner cannot as9 for

the return of the indemnity# if the serient owner chooses to allow thecontinuation of the easement'

• /he serient owner is not liable to pay interest on the indemnity as the

interest is deemed to be payment for the use of the easement'

Art& 0*0& I" it e in$is#ensale "or the constr,ction+ re#air+im#ro'ement+ alteration or ea,ti"ication o" a ,il$ing+ to carrymaterials thro,gh the estate o" another+ or to raise therein sca""ol$ingor other o!ects necessary "or the wor-+ the owner o" s,ch estate shalle olige$ to #ermit the act+ a"ter recei'ing #ayment o" the #ro#erin$emnity "or the $amage ca,se$ him& H*07a

/emporary easement of right of way

• /his applies to a right of way which is essentially temporary or transitory'

• 4t is sufficient that great inconenience# difficulty# or expense would be

encountered if the easement was not granted'

• /emporary easement is allowed only after the payment of the proper

indemnity'

)ase doctrine

• /he installation of electric power lines is a permanent easement not

coered by Article HCH' Article HCH deals only with the temporaryeasement of passage' !3reysler# @r )A"

Art& 0*2& Easements o" the right o" way "or the #assage o" li'estoc--nown as animal #ath+ animal trail or any other+ an$ those "or watering#laces+ resting #laces an$ animal "ol$s+ shall e go'erne$ y theor$inances an$ reg,lations relating thereto+ an$+ in the asencethereo"+ y the ,sages an$ c,stoms o" the #lace&

<itho,t #re!,$ice to rights legally ac6,ire$+ the animal #athshall not e/cee$ in any case the wi$th o" 2* meters+ an$ the animal trailthat o" .2 meters an$ *9 centimeters&

<hene'er it is necessary to estalish a com#,lsory easemento" the right o" way or "or a watering #lace "or animals+ the #ro'isions o" this Section an$ those o" Articles 049 an$ 041 shall e oser'e$& In thiscase the wi$th shall not e/cee$ 19 meters& H*29a

$ight of way for the passage of liestoc9# watering places

• /he easements shall be goerned by the ordinances# regulations# and in

their absence# usages and customs of the place'



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• Animal path max width8 IC meters

• Animal trail max width8 -I'C meters

• Bor drawing waters and for watering animals max width8 &; meters

o 4n the last case# they can be imposed only for reasons of public

use in faor of a town or barrio and only after payment of the

proper indemnity'

SE:TION 3OCR EASEMENT O3 PARTY <ALL Art& 0*5& The easement o" #arty wall shall e go'erne$ y the#ro'isions o" this Title+ y the local or$inances an$ c,stoms inso"ar asthey $o not con"lict with the same+ an$ y the r,les o" coownershi#&H*21a

What’s an easement of party wall?

• 4t refers to all those mass of rights and obligations emanating from the

existence and common enjoyment of wall# fence# enclosures or hedges#by the owners of adjacent buildings and estates separated by such

objects'

What is a party wall# what is its nature?

• A party wall is a common wall which separates two estates# built by

common agreement at the diiding line such that it occupies a portion of both estates on e%ual parts'

• 4t is a 9ind of forced co7ownership in which the parties are prt7owners'

• .ach owner owns part of the wall but it cannot be separated from the

other portions belonging to the others'

• An owner may use a party wall to the extent of the P portion on his

property' <ot all common walls or walls in co7ownership are party walls'!A wall built on a co7owned lot is a common wall# not a party wall'"

3arty Wall )o7ownership/he shares of the co7owners cannotbe physically segregated but theycan be physically identified'

hares of the co7owners can bediided or separated physically'6efore such diision# a co7ownercannot point to any definite portion of the property as belonging to him'

<o such limitation <one of the co7owners may use thecommunity property for his exclusiebenefit

Any owner may free himself fromcontributing to the cost of repairsand construction of a party wall byrenouncing all his rights thereto'

3artial renunciation is allowed

Art& 0*7& The e/istence o" an easement o" #arty wall is #res,me$+,nless there is a title+ or e/terior sign+ or #roo" to the contrary%

H1 In $i'i$ing walls o" a$!oining ,il$ings ,# to the #oint o"common ele'ation(

H) In $i'i$ing walls o" gar$ens or yar$s sit,ate$ in cities+towns+ or in r,ral comm,nities(

H. In "ences+ walls an$ li'e he$ges $i'i$ing r,ral lan$s& H*2)

When is the existence of a party wall presumed?&' 4n diiding walls of adjoining buildings up to the point of common

eleation5*' 4n diiding walls of gardens or yards situated in cities# towns# or in rural

communities5 or

-' 4n fences# walls and lie hedges diiding rural lands'

• /he legal presumption is juris tantum5 it may be rebutted by a title or

exterior sign or any other proof showing that the entire wall incontroersy belongs exclusiely to one of the adjoining property owners'

)ase doctrine

• A wall separating two adjoining buildings# built on the land on which one

of these buildings stands# is not a party wall when there is a drain alongits top to carry away the water from the roof and eaes of the buildingbelonging to the owner of the land on which the wall is erected5 and alsowhen a part of the wall is coered by the roof of the said building# theconstruction of which demonstrates that the wall belongs exclusiely to

the owner of the building of which it forms part' !:ao Eeirs of Alburo"

Art& 009& It is ,n$erstoo$ that there is an e/terior sign+ contrary to theeasement o" #arty wall%

H1 <hene'er in the $i'i$ing wall o" ,il$ings there is awin$ow or o#ening(

H) <hene'er the $i'i$ing wall is+ on one si$e+ straight an$#l,m on all its "acement+ an$ on the other+ it has similar con$itions onthe ,##er #art+ ,t the lower #art slants or #ro!ects o,twar$(



90


PROPERTY NOTES



H. <hene'er the entire wall is ,ilt within the o,n$aries o"one o" the estates(

H4 <hene'er the $i'i$ing wall ears the ,r$en o" the in$ingeams+ "loors an$ roo" "rame o" one o" the ,il$ings+ ,t not those o"the others(

H* <hene'er the $i'i$ing wall etween co,rtyar$s+ gar$ens+

an$ tenements is constr,cte$ in s,ch a way that the co#ing she$s thewater ,#on only one o" the estates(

H0 <hene'er the $i'i$ing wall+ eing ,ilt o" masonry+ hasste##ing stones+ which at certain inter'als #ro!ect "rom the s,r"ace onone si$e only+ ,t not on the other(

H2 <hene'er lan$s inclose$ y "ences or li'e he$ges a$!oinothers which are not inclose$&

In all these cases+ the ownershi# o" the walls+ "ences orhe$ges shall e $eeme$ to elong e/cl,si'ely to the owner o" the#ro#erty or tenement which has in its "a'or the #res,m#tion ase$ onany one o" these signs& H*2.

.xterior signs rebutting presumption

• /his article mentions some exterior signs rebutting the presumption of aparty wall' /he wall becomes the exclusie property of the owner of theestate which has in its faor the presumption based on any of the aboeexterior signs'

• /he enumeration is merely illustratie# and is not exclusie'

• /he exterior signs may contradict each other' 4n such case# the court

shall decide the matter ta9ing into consideration all the circumstances'o 6ut in case of conflict between a title eidencing ownership to a

wall and an exterior sign# the former must preail# for the lattermerely gies rise to an inference of ownership'

Art& 001& 8itches or $rains o#ene$ etween two estates are also#res,me$ as common to oth+ i" there is no title or sign showing the

contrary&There is a sign contrary to the #artownershi# whene'er the

earth or $irt remo'e$ to o#en the $itch or to clean it is only on one si$ethereo"+ in which case the ownershi# o" the $itch shall elonge/cl,si'ely to the owner o" the lan$ ha'ing this e/terior sign in its"a'or& H*24

6itches or drains between two estates !hehe"

• /he deposit of earth or debris on one side alone is an exterior sign that

the owner of that side is the owner of the ditch or the drain'

• Again# this is rebuttable'

Art& 00)& The cost o" re#airs an$ constr,ction o" #arty walls an$ themaintenance o" "ences+ li'e he$ges+ $itches+ an$ $rains owne$ incommon+ shall e orne y all the owners o" the lan$s or tenementsha'ing the #arty wall in their "a'or+ in #ro#ortion to the right o" each&

Ne'ertheless+ any owner may e/em#t himsel" "romcontri,ting to this charge y reno,ncing his #artownershi#+ e/ce#twhen the #arty wall s,##orts a ,il$ing elonging to him& H*2*

)ontribution to cost of repairs and construction of party walls

• /he part7owners of the party wall shall contribute to the cost in the

proportion to their respectie interests'o 6ut if the cause of the repairs is due to the fault of just one#

then he alone shall bear the costs'

• Any owner may free himself from contributing to the charge by

renouncing his rights in the party wall unless it actually supports hisbuilding'

• /he renunciation will include the land on which the party wall is

constructed'

Art& 00.& I" the owner o" a ,il$ing+ s,##orte$ y a #arty wall $esires to$emolish the ,il$ing+ he may also reno,nce his #artownershi# o" thewall+ ,t the cost o" all re#airs an$ wor- necessary to #re'ent any$amage which the $emolition may ca,se to the #arty wall+ on thisoccasion only+ shall e orne y him& H*20

Demolish that building= Demolish=

• An owner may also renounce his part ownership of a party wall if he

desires to demolish his building supported by the wall'• Ee shall bear all the expenses of repairs and wor9 necessary to preent

any damage which the demolition may cause to the party wall'

Art& 004& E'ery owner may increase the height o" the #arty wall+ $oingat his own e/#ense an$ #aying "or any $amage which may e ca,se$y the wor-+ e'en tho,gh s,ch $amage e tem#orary&



91


PROPERTY NOTES



The e/#enses o" maintaining the wall in the #art newly raise$or $ee#ene$ at its "o,n$ation shall also e #ai$ "or y him( an$+ ina$$ition+ the in$emnity "or the increase$ e/#enses which may enecessary "or the #reser'ation o" the #arty wall y reason o" thegreater height or $e#th which has een gi'en it&

I" the #arty wall cannot ear the increase$ height+ the owner

$esiring to raise it shall e olige$ to reconstr,ct it at his own e/#ensean$+ i" "or this #,r#ose it e necessary to ma-e it thic-er+ he shall gi'ethe s#ace re6,ire$ "rom his own lan$& H*22

Art& 00*& The other owners who ha'e not contri,te$ in gi'ingincrease$ height+ $e#th or thic-ness to the wall may+ ne'ertheless+ac6,ire the right o" #artownershi# therein+ y #aying #ro#ortionallythe 'al,e o" the wor- at the time o" the ac6,isition an$ o" the lan$ ,se$"or its increase$ thic-ness& H*25a

4ncrease the height of party wall=

• An owner is gien the right to increase the height of a party wall subject

to the following conditions8

&' Ee must do so at his own expense5*' Ee must pay for any damage which may be caused thereby een if

damage is temporary5-' Ee must bear the cost of maintaining the portion added5 and' Ee must pay the increased cost of preseration of the wall'

• Ee shall be obliged to reconstruct the wall at his expense if it is

necessary so that the wall can bear the increased height# and ifadditional thic9ness is re%uired# he shall proide the space thereforefrom his own land'

• /he other owners cannot object to the wor9 as long as the aboe

conditions are complied with'

• /he owner who ma9es the addition ac%uires ownership unless the other

owners pay proportionately the alue of the wor9 at the time of the

ac%uisition !not the construction" and of the land used for the wall’sincreased thic9ness'

Art& 000& E'ery #artowner o" a #arty wall may ,se it in #ro#ortion to theright he may ha'e in the coownershi#+ witho,t inter"ering with thecommon an$ res#ecti'e ,ses y the other coowners& H*27a

3roportional use of party wall

• 4f /weet owns *L- of the party wall and 3lur9 owns &L-# /weet may use

the wall !li9e inserting a beam" up to *L- of its thic9ness# and 3lur9 cando the same up to &L-'

SE:TION 3IVE EASEMENT O3 LI>;T AN8 VIE<

Art& 002& No #artowner may+ witho,t the consent o" the others+ o#enthro,gh the #arty wall any win$ow or a#ert,re o" any -in$& H*59

WEA/ 4 A< .A.M.</ >B :4GE/?=?=

• .asement of light ! jus luminum) is the right to admit light from the

neighboring estate by irtue of the opening of a window or the ma9ing of certain openings'

WEA/ 4 A< .A.M.</ >B F4.W?=?=

• .asement of iew ! jus prospectus" is the right to ma9e openings or

windows# to enjoy the iew through the estate of another and the powerto preent all constructions or wor9s which would obstruct such iew orma9e the same difficult'

• 4t necessarily includes the easement of light'

Ma9ing of opening through a party wall

• A part7owner cannot exercise an act which implies full ownership of the

wall by ma9ing use of all its thic9ness'

• $emember# a window in the diiding wall of buildings is an exterior sign

which rebuts the presumption that the wall is a party wall' >ne part7owner may not# therefore# ma9e any window or opening of any 9ind thrua party wall without the consent of the others'

Art& 005& The #erio$ o" #rescri#tion "or the ac6,isition o" an easemento" light an$ 'iew shall e co,nte$%

H1 3rom the time o" the o#ening o" the win$ow+ i" it is thro,gha #arty wall( or

H) 3rom the time o" the "ormal #rohiition ,#on the #ro#rietoro" the a$!oining lan$ or tenement+ i" the win$ow is thro,gh a wall onthe $ominant estate& Hn

3rescriptie period for ac%uisition of easement of light and iew

• /he easement of light and iew is either positie or negatie'

• When is it positie?



92


PROPERTY NOTES



o 4t is considered positie if made through a party wall or een if

made on one’s own wall# if the window is on a balcony orprojection extending oer the adjoining property'

o When a window is opened through a party wall# an apparent

and continuous easement is created from the time of suchopening' 6ut there is no true easement as long as the right topreent its use exists'

o /he adjoining owner can order the window closed within &;

years from the time of the opening of the window'

• When is it negatie?

o 4t is considered negatie if the window is made through a wall

on the dominant estate'o /he &;7year period of prescription commences from the time of

the formal prohibition !instrument ac9nowledged by a notarypublic" upon the adjoining owner'

o 6efore the expiration of the prescriptie period# the window

exists by mere tolerance of the adjoining owner who alwaysretains the right to hae it closed or to build an obstruction#although the opening was made more than &; years after hedecided to exercise his right'

/he opening by Qyal was made in &KK; but he made

a formal notarial demand prohibiting eeyoo toobstruct the iew only in &KK# eeyoo may stilldemand the closure of the window in *;;&'

)ase doctrines

• When the construction of windows and balconies does not constitute an

actual inasion of the rights of another# but is a lawful exercise of aninherent right# the easement of light and iew is negatie' !Babie :ichauco"

• When a window is opened in a party wall# the express or implied

consent of the part owner affords a basis for the ac%uisition of aprescriptie title'

• When a window is opened in the wall of a neighbor# prescription

commences to run from the date of the opening of the windows andripens into title when the specified time has elapsed without opoositionon the part of the owner of the wall' !)ortes u /ibo"

•

Art& 007& <hen the $istances in Article 029 are not oser'e$+ the ownero" a wall which is not #arty wall+ a$!oining a tenement or #iece o" lan$elonging to another+ can ma-e in it o#enings to a$mit light at theheight o" the ceiling !oints or imme$iately ,n$er the ceiling+ an$ o" thesie o" thirty centimeters s6,are+ an$+ in e'ery case+ with an irongrating ime$$e$ in the wall an$ with a wire screen&

Ne'ertheless+ the owner o" the tenement or #ro#erty a$!oiningthe wall in which the o#enings are ma$e can close them sho,l$ heac6,ire #artownershi# thereo"+ i" there e no sti#,lation to thecontrary&

;e can also ostr,ct them y constr,cting a ,il$ing on hislan$ or y raising a wall thereon contig,o,s to that ha'ing s,cho#enings+ ,nless an easement o" light has een ac6,ire$& H*51a

>penings at height of ceiling joists to admit light

• When the wall is not a party wall# the owner may ma9e an opening for

the purpose of admitting light and air# but not for iew' /he restrictionsare the following8&' /he sie must not exceed -; cm s%uare5

*' /he opening must be at the height of the ceiling joists orimmediately under the ceiling5

-' /here must be an iron grating imbedded in the wall5 and' /here must be a wire screen'

• When the wall becomes a party wall# a part7owner can order the closure

of the opening because no part7owner may ma9e an opening through aparty wall without the consent of the others' 4t can also obstruct theopening unless an easement of light has been ac%uired by prescription#in which case the serient owner may not impair the easement'

)ase doctrine

• 4f a house consists of more than one story# each story may hae the

same openings which are proided by law for one house' /he purpose

of the law is to proide light to the rooms and it is eident that the roomsof the lower stories hae a much need for light as those of the top story'!)hoco antamaria""

• When the house has been built# with two meters of the diiding line !Art

HI;"# no other windows than those proided in this article may beopened in its walls' !ae Bigueras"

Art& 029& No win$ows+ a#ert,res+ alconies+ or other similar #ro!ectionswhich a""or$ a $irect 'iew ,#on or towar$s an a$!oining lan$ or



93


PROPERTY NOTES



tenement can e ma$e+ witho,t lea'ing a $istance o" two metersetween the wall in which they are ma$e an$ s,ch contig,o,s#ro#erty&

Neither can si$e or oli6,e 'iews ,#on or towar$s s,chcontermino,s #ro#erty e ha$+ ,nless there e a $istance o" si/tycentimeters&

The nonoser'ance o" these $istances $oes not gi'e rise to#rescri#tion& H*5)a

Art& 021& The $istance re"erre$ to in the #rece$ing article shall emeas,re$ in cases o" $irect 'iews "rom the o,ter line o" the wall whenthe o#enings $o not #ro!ect+ "rom the o,ter line o" the latter when they$o+ an$ in cases o" oli6,e 'iew "rom the $i'i$ing line etween the two#ro#erties& H*5.

Direct and obli%ue iews

• Article IH; re%uires a distance of8

o Bor direct iew# * meters

o Bor obli%ue iew# H; cm

• Article IH& proides the manner of measuring the distance'o Bor direct iew 2 from the outer line of the wall when the

openings do not project5 from the outer line of the openingswhen they do project

o Bor obli%ue iew 2 from the diiding line

• An owner can build within the minimum distance or een up to the

diiding line proided no window is opened except as proided in ArticleHHK'

• When windows are opened# without obsering the re%uired legal

distances# the adjoining owner has a right to hae them closed'

• /he non7obserance of the distances does not gie rise to prescription'

o /he mere opening of the windows in iolation of Article II;

does not gie rise to the seritude by prescription'o 4t’s a negatie easement because the window is through a wall

of the dominant estate and so prescription may still be ac%uiredafter &; years from the time of notarial prohibition'

Art& 02)& The #ro'isions o" Article 029 are not a##licale to ,il$ingsse#arate$ y a #,lic way or alley+ which is not less than three meterswi$e+ s,!ect to s#ecial reg,lations an$ local or$inances& H*54a

Where buildings separated by a public way or alley

• /he distance in HI; is not compulsory where there is a public way or

alley proided that it is not less than - meters wide'

)ase doctrine

• A priate alley opened to the use of the general public falls within the

proision of Article HI*'

Art& 02.& <hene'er y any title a right has een ac6,ire$ to ha'e $irect'iews+ alconies or el'e$eres o'erloo-ing an a$!oining #ro#erty+ theowner o" the ser'ient estate cannot ,il$ thereon at less than a$istance o" three meters to e meas,re$ in the manner #ro'i$e$ inArticle 021& Any sti#,lation #ermitting $istances less than those#rescrie$ in Article 029 is 'oi$& H*5*a

Where easement of direct iew has been ac%uired

• /he word 0title1 as used in Article HI- refers to any of the modes of

ac%uiring easements !contract# will# donation or prescription"'

• Wheneer the easement of direct iew has been ac%uired by such title#

there is created a true easement# the owner of the serient estatecannot build thereon at less than a distance of - meters from theboundary line'

• /he distance may be increased or decreased by stipulation of the

parties proided that in case of decrease# the minimum distance of *meters or H; cm in HI; must be obsered' 4f not# then it’s oid'

SE:TION SI 8RAINA>E O3 =CIL8IN>S Art& 024& The owner o" a ,il$ing shall e olige$ to constr,ct its roo"or co'ering in s,ch manner that the rain water shall "all on his ownlan$ or on a street or #,lic #lace+ an$ not on the lan$ o" his neighor+

e'en tho,gh the a$!acent lan$ may elong to two or more #ersons+ oneo" whom is the owner o" the roo"& E'en i" it sho,l$ "all on his own lan$+the owner shall e olige$ to collect the water in s,ch a way as not toca,se $amage to the a$!acent lan$ or tenement& H*50a

What is an easement of drainage of buildings?



94


PROPERTY NOTES



• .asement of drainage of buildings is the right to diert or empty the rain

waters from the one’s own roof or shed to the neighbor’s estate eitherdrop by drop or through conduits'

$ainwater not to fall on land of another

• /his article does not really create a seritude# it merely regulates the

use of one’s own property by imposing on him the obligation to collectits rain waters so as not to cause damage to his neighbors# een if hebe a co7owner of the latter'

• 4t’s an exemption to Article H-I which obliges lower estates to receie

the waters which naturally flow from higher estates'

Art& 02*& The owner o" a tenement or a #iece o" lan$+ s,!ect to theeasement o" recei'ing water "alling "rom roo"s+ may ,il$ in s,chmanner as to recei'e the water ,#on his own roo" or gi'e it anothero,tlet in accor$ance with local or$inances or c,stoms+ an$ in s,ch away as not to ca,se any n,isance or $amage whate'er to the $ominantestate& H*52

.asement to receie falling rainwater • /his article deals not with a legal or compulsory easement but with a

oluntary easement to receie rain water falling from the roof of anadjoining building'

• 4t is an application of Article H*K'

Art& 020& <hene'er the yar$ or co,rt o" a ho,se is s,rro,n$e$ y otherho,ses+ an$ it is not #ossile to gi'e an o,tlet thro,gh the ho,se itsel"to the rain water collecte$ thereon+ the estalishment o" an easemento" $rainage can e $eman$e$+ gi'ing an o,tlet to the water at the #ointo" the contig,o,s lan$s or tenements where its egress may e easiest+an$ estalishing a con$,it "or the $rainage in s,ch manner as to ca,sethe least $amage to the ser'ient estate+ a"ter #ayment o" the #ro#erty

in$emnity& H*5.

.asement giing outlet to rainwater where house surrounded by otherhouses

• /he legal easement of drainage may be demanded subject to the

following conditions8&' /here must be no ade%uate outlet to the rainwater because the

yard or court of a house is surrounded by other houses5

*' /he outlet to the water must be at the point where egress is easiest#and establishing a conduit for drainage5 and

-' /here must be payment of proper indemnity'

SE:TION 2& INTERME8IATE 8ISTAN:ES AN8 <ORGS

3OR :ERTAIN :ONSTRC:TIONS AN8 PLANTIN>S Art& 022& No constr,ctions can e ,ilt or #lantings ma$e near "orti"ie$#laces or "ortresses witho,t com#liance with the con$itions re6,ire$ ins#ecial laws+ or$inances+ an$ reg,lations relating thereto& H*57

)onstructions and plantings near fortified places

• /his article establishes an easement in faor of the tate'

Art& 025& No #erson shall ,il$ any a6,e$,ct+ well+ sewer+ ",rnace+"orge+ chimney+ stale+ $e#ository o" corrosi'e s,stances+ machinery+or "actory which y reason o" its nat,re or #ro$,cts is $angero,s orno/io,s+ witho,t oser'ing the $istances #rescrie$ y the reg,lationsan$ c,stoms o" the #lace+ an$ witho,t ma-ing the necessary #rotecti'ewor-s+ s,!ect+ in regar$ to the manner thereo"+ to the con$itions#rescrie$ y s,ch reg,lations& These #rohiitions cannot e altere$or reno,nce$ y sti#,lation on the #art o" the a$!oining #ro#rietors&

In the asence o" reg,lations+ s,ch #reca,tions shall e ta-enas may e consi$ere$ necessary+ in or$er to a'oi$ any $amage to theneighoring lan$s or tenements& H*79a

)onstruction of a%ueduct# well# sewer# etc

• )onstructions which by reason of their nature or products are

dangerous or noxious must comply with the distances prescribed bylocal regulations and customs of the place' <ecessary protectie wor9smust also be builtLdone by the owner to aoid damage to neighbors'

• /he prohibitions cannot be altered by stipulations because of the

underlying public policy of safety'• Whut up# ang layo mo na; @o go go;

Art& 027& No trees shall e #lante$ near a tenement or #iece o" lan$elonging to another e/ce#t at the $istance a,thorie$ y theor$inances or c,stoms o" the #lace+ an$+ in the asence thereo"+ at a$istance o" at least two meters "rom the $i'i$ing line o" the estates i"



95


PROPERTY NOTES



tall trees are #lante$ an$ at a $istance o" at least "i"ty centimeters i"shr,s or small trees are #lante$&

E'ery lan$owner shall ha'e the right to $eman$ that treesherea"ter #lante$ at a shorter $istance "rom his lan$ or tenement e,#roote$&

The #ro'isions o" this article also a##ly to trees which ha'e

grown s#ontaneo,sly& H*71a

3lanting of trees !wow="

• /his article establishes a negatie easement'

• 4t proides the minimum distance of trees and shrubs from the boundary

line'

• /hey shall be regulated first by local ordinances5 and then by the

customs of the place5 and in default of both# this interesting article'

• 4n case of iolation# a landowner shall hae the right to demand the

uprooting of the tree or shrub een if it has grown spontaneously'

Art& 059& I" the ranches o" any tree sho,l$ e/ten$ o'er a neighoringestate+ tenement+ gar$en or yar$+ the owner o" the latter shall ha'e theright to $eman$ that they e c,t o"" inso"ar as they may s#rea$ o'erhis #ro#erty+ an$+ i" it e the roots o" a neighoring tree which sho,l$#enetrate into the lan$ o" another+ the latter may c,t them o"" himsel"within his #ro#erty& H*7)

4ntrusions of branches or roots into neighboring estates

• 4n case of branches# the adjoining owner must first demand that they be

cut7off by the tree owner insofar as they spread oer the former’sproperty' 4f the tree owner refuses# he may as9 authority from the court'

• As to the roots# he may cut them off himself if they penetrate into his

land without the necessity of giing notice to the tree owner# because#by right of accession# he has ac%uired ownership oer them' 4t actuallyconstitutes a direct inasion on his land !grabe naman'"

Art& 051& 3r,its nat,rally "alling ,#on a$!acent lan$ elong to the owner o" sai$ lan$& Hn

Aung mahulog yung mangga ni Jhunjhun sa lote 'o, a'in na ba yungmangga9

• es' 6ut the falling must occur naturally' o 4 hae no right to pic9 fruits

still on branches that extend oer my land'

• /his is not based on occupation nor accession# but by operation of law'

SE:TION 5& EASEMENT A>AINST NCISAN:E Art& 05)& E'ery ,il$ing or #iece o" lan$ is s,!ect to the easement

which #rohiits the #ro#rietor or #ossessor "rom committing n,isancethro,gh noise+ !arring+ o""ensi'e o$or+ smo-e+ heat+ $,st+ water+ glarean$ other ca,ses&

Art& 05.& S,!ect to oning+ health+ #olice an$ other laws an$reg,lations+ "actories an$ sho#s may e maintaine$ #ro'i$e$ the least#ossile annoyance is ca,se$ to the neighorhoo$&

• /he )ode considers the easement against nuisance as negatie

because the proprietor or possessor is prohibited to do something whichhe could lawfully do were it not for the existence of the easement'Eoweer# a nuisance inoles any act of ormission which is unlawful'o# these two articles are more of a restriction on the right of ownershipthan a true easement'

SE:TION 7& Lateral an$ S,!acent S,##ort Hn Art& 054& No #ro#rietor shall ma-e s,ch e/ca'ations ,#on his lan$ as to$e#ri'e any a$!acent lan$ or ,il$ing o" s,""icient lateral or s,!acents,##ort&

Art& 05*& Any sti#,lation or testamentary #ro'ision allowinge/ca'ations that ca,se $anger to an a$!acent lan$ or ,il$ing shall e'oi$&

Art& 050& The legal easement o" lateral an$ s,!acent s,##ort is notonly "or ,il$ings stan$ing at the time the e/ca'ations are ma$e ,t

also "or constr,ctions that may e erecte$&

Art& 052& Any #ro#rietor inten$ing to ma-e any e/ca'ationcontem#late$ in the three #rece$ing articles shall noti"y all owners o"a$!acent lan$s&

3roprietor prohibited from ma9ing dangerous excaations

• upport is lateral when the supported and the supporting lands are

diided by a ertical plane'



96


PROPERTY NOTES



• upport is subjacent when the supported land is aboe and the

supporting land is beneath it'

• An owner# by irtue of his surface right# may ma9e excaations on his

land# but his right is subject to the limitation in Article H that he shallnot deprie any adjacent land or building of sufficient lateral or subjacentsupport'

• Any stipulation or testamentary proision allowing excaations that

iolate Article H is oid' /he limitation applies not only to existingbuildings but also to future constructions'

• /he notice re%uired in Article HI is mandatory except where there is

actual 9nowledge of the proposed excaation'

• /he adjacent owner is entitled to injunctie relief and to damages for

iolation of the proisions'

:;APTER .VOLCNTARY EASEMENTS Art& 055& E'ery owner o" a tenement or #iece o" lan$ may estalish

thereon the easements which he may $eem s,itale+ an$ in the manner an$ "orm which he may $eem est+ #ro'i$e$ he $oes not contra'enethe laws+ #,lic #olicy or #,lic or$er& H*74

>wner of land may constitute easement

• ince easement inoles an act of strict dominium# only the owner or at

least one acting in his name and under his authority# may establish aoluntary easement'

• Eoweer# a beneficial owner may establish a temporary easement

consistent with his right as such and subject to termination upon theextinguishment of the usufruct'

Foluntary easements not contractual

•

Foluntary easements are not contractual in nature# they constitute theact of the owner'

Art& 057& The owner o" a tenement or #iece o" lan$+ the ,s,"r,ct o"which elongs to another+ may im#ose thereon+ witho,t the consent o"the ,s,"r,ct,ary+ any ser'it,$es which will not in!,re the right o",s,"r,ct& H*7*

Where property held in usufruct

• /he owner of property in usufruct may create easements thereon

without the consent of the usufructuary proided the rights of the latterare not impaired'

Art& 079& <hene'er the na-e$ ownershi# o" a tenement or #iece o" lan$elongs to one #erson an$ the ene"icial ownershi# to another+ no#er#et,al 'ol,ntary easement may e estalishe$ thereon witho,t theconsent o" oth owners& H*70

)reation of perpetual oluntary easement

• A usufructuary may impose on the estate held in usufruct a temporary

easement'

• Where the na9ed ownership and the beneficial ownership of the estate

belong to different persons# and the easement is perpetual !permanentright of way# etc"# the consent of both the na9ed owner and thebeneficial owner is re%uired'

Art& 071& In or$er to im#ose an easement on an ,n$i'i$e$ tenement+ or

#iece o" lan$+ the consent o" all the coowners shall e re6,ire$&The consent gi'en y some only+ m,st e hel$ in aeyance

,ntil the last one o" all the coowners shall ha'e e/#resse$ hiscon"ormity&

=,t the consent gi'en y one o" the coowners se#arately "romthe others shall in$ the grantor an$ his s,ccessors not to #re'ent thee/ercise o" the right grante$& H*72a

4mposition of easement on undiided property

• /he creation of a oluntary easement on property owned in common

re%uires the unanimous consent of all the co7owners# because itinoles an act of alteration and not merely an alienation of an idealshare of a co7owner'

• /he consent may be gien separately or successiely'• >nce consent is gien by a co7owner# the same is binding upon him and

his successors unless his consent was itiated'

• After the consent of the last of all of the co7owners has been secured# it

is not necessary for him to gie again his consent'

Art& 07)& The title an$+ in a #ro#er case+ the #ossession o" an easementac6,ire$ y #rescri#tion shall $etermine the rights o" the $ominant



97


PROPERTY NOTES



estate an$ the oligations o" the ser'ient estate& In $e"a,lt thereo"+ theeasement shall e go'erne$ y s,ch #ro'isions o" this Title as area##licale thereto& H*75

$ules goerning oluntary easementsJano nga ba9&' 4f created by title# such as contract# will# etc# then by such title5

*' 4f created by prescription# by the form and manner of possession of theeasement !see Art H-*"5 and

-' 4n default of the aboe# by the proisions of the )iil )ode on easement'

Art& 07.& I" the owner o" the ser'ient estate sho,l$ ha'e o,n$ himsel"+,#on the estalishment o" the easement+ to ear the cost o" the wor-re6,ire$ "or the ,se an$ #reser'ation thereo"+ he may "ree himsel" "romthis oligation y reno,ncing his #ro#erty to the owner o" the$ominant estate& H*77

Where serient owner bound himself to bear cost of maintenance ofeasement

• /his article applies only where the owner of the serient estate bound

himself to bear the cost of the wor9 re%uired for the use andpreseration of the easement

• Ee is bound to fulfill the obligation he has contracted in the same way

that such an owner# should he ma9e use of the easement# is bound tocontribute to the wor9s necessary for the use and preseration of theseritude'

• /he serient owner may f ree himself from his obligation by renouncing

or abandoning his property to the dominant owner'o /he renunciation need not be oer the whole serient

tenement# but only on the portion thereof affected by theeasement !right o% way, etc "' howeer# if the easement affectsthe entire serient estate !li'e natural drainage"# then therenunciation must be total'

o 4n any case# it cannot be tacit or implied5 it must follow the formre%uired by law for transmission of ownership of real property'

TITLE EI>;TNCISAN:E

Art& 074& A n,isance is any act+ omission+ estalishment+ ,siness+con$ition o" #ro#erty+ or anything else which%

H1 In!,res or en$angers the health or sa"ety o" others( orH) Annoys or o""en$s the senses( orH. Shoc-s+ $e"ies or $isregar$s $ecency or morality( orH4 Ostr,cts or inter"eres with the "ree #assage o" any #,lic

highway or street+ or any o$y o" water( orH* ;in$ers or im#airs the ,se o" #ro#erty&

What is the statutory definition of nuisance?

• <uisance is used to refer either to the harm caused or that which

causes harm# or both

• <egligence is not an essential ingredient of a nuisance but to be liable

for a nuisance# there must be resulting injury to another in theenjoyment of his legal rights'

• Anything which8 !4A>E"

&' 4njures or endangers the health or safety of others*' Annoys or offends the senses-' hoc9s# defies or disregards decency or morality

' >bstructs or interferes with the free passage of any public highwayor street# or any body of water

C' Einders or impairs the use of property'

Distinguish nuisance from trespass

• <uisance consists of a use of one’s own property in such a manner as

to cause injury to the property or other right or interest of another# andgenerally results from the commission of an act beyond the limits of theproperty affected

• /respass is a direct infringement of another’s right of property

• Where there is no actual physical inasion of the plaintiff’s property# the

cause of action is for nuisance rather than trespass' An encroachmentupon the space about another’s land but not upon the land itself is a

nuisance# and not a trespass'• 4n trespass# the injury is direct and immediate5 in nuisance# it is

conse%uential'

Distinguish nuisance from negligence<uisance <egligence

6asis ofbreach of duty

$egardless of thedegree of care or s9ill

Want of care



98


PROPERTY NOTES



Fiolation of An absolute duty# thedoing of an act which iswrongful in itself

A relatie duty# the failure to usethe degree of care re%uiredunder particular circumstancesin connection with an act oromission which is not of itselfwrongful

• Where the damage is the necessary conse%uence of what thedefendant is doing# or is incident to the business itself or the manner inwhich it is conducted# the law of negligence has no application# and thelaw of nuisance applies'

• 4n fine# nuisance is wrongful in itself because of the injury caused

regardless of the presence or absence of care# while negligence createsliability because of want of proper care resulting to another’s injury'

)ase doctrines

• <oise becomes actionable only when it passes the limits of reasonable

adjustment to the conditions of the locality and of the needs of thema9er to the needs of the listener' 4njury to a particular person in apeculiar position will not render the noise an actionable nuisance 2 in

the condition of present liing# noise seems inseparable from theconduct of many necessary occupations'

• /he test to determine noise as nuisance is whether rights of property#

health or comfort are so injuriously affected by the noise that thesufferer is subjected to a loss which goes beyond the reasonable limitimposed upon him by the condition of liing'

• /he determining factor when noise alone is the cause of complaint is not

its intensity or olume# but it is that the noise is of such character as toproduce actual physical discomfort and annoyance to a person ofordinary sensibilities# rendering adjacent property less comfortable andaluable' !A) .nterprises Brabelle"

• A negligent or intentional act may constitute a nuisance' Where# after

complaint and notice of damage# the defendant continues to offend and

refuses to correct or discontinue the nuisance# it is intentional'

Art& 07*& N,isance is either #,lic or #ri'ate& A #,lic n,isance a""ectsa comm,nity or neighorhoo$ or any consi$erale n,mer o" #ersons+altho,gh the e/tent o" the annoyance+ $anger or $amage ,#onin$i'i$,als may e ,ne6,al& A #ri'ate n,isance is one that is notincl,$e$ in the "oregoing $e"inition&

What is a public nuisance?

• A public nuisance has been defined as

o the doing of or the failure to do something that injuriously

affects safety# health or morals of the public# or o wor9s some substantial annoyance# inconenience# or injury to

the public'

What is a priate nuisance?

• A priate nuisance has been defined as one which iolates only priate

rights and produces damage to but one or a few personas# and cannotbe said to be public'

3ublic 3riate

Affects 3ublic at large# or such ofthem as may come incontact with it

/he indiidual or a limitednumber of indiiduals only

$emedies 4ndictable Actionable# either for theirabatement or for damages#or both

• A nuisance may be both public and priate in character' Eence# there

are mixed nuisances' 4t may iolate public rights to the injury of many#while producing special injury to priate rights to any extent beyond theinjury to the public'

What is a nuisance per se?

• uisance per se is an act# occupation# or structure which

un%uestionably is a nuisance at all times and under any circumstances#regardless of location or surroundings'

• 4t is that which affects the immediate safety of persons and property'

!/elmo 6ustamante"

• 4t is a nuisance of itself because of its inherent %ualities# productie of

injury or dangerous to life or property without regard to circumstance'

• .xample8 A house of prostitution'

What is a nuisance per accidens?

• 4t is an act# occupation# or structure# not a nuisance per se# but which

may become a nuisance by reason of circumstances# location# orsurroundings'

• .xample8 raising of pigs in a house within city limits'

<uisance per se <uisance per accidens



99


PROPERTY NOTES



4n terms ofproof

/he thing becomes anuisance as a matter oflaw4ts existence need only beproed in any locatlity#without showing specific

damages# and the right torelief is established byaerment and proof of themere act'

Depends upon its location andsurroundings# the manner ofits conduct or othercircumstances'3roof of the act and itsconse%uences is necessary'

4t must be shown by eidenceto be a nuisance under thelaw'

4n terms ofaction

May be summarily abatedunder the undefined law ofnecessity

.en the municipalauthorities# under their powerto declare and abatenuisances# would not hae theright to compel the abatementof a particular thing or act as anuisance without reasonablenotice to the person alleged tobe maintaining or doing the

same at the time and place ofhearing before a tribunalwhether such a thingconstitutes a nuisance

)ase doctrines

• /he operation of bus terminals is a legitimate business which# by itself#

cannot be said to be injurious to the rights of property# health# or comfortof the community' (nless a thing is nuisance per se# it may not beabated ia an ordinance# without judicial proceedings' !:ucena @A):iner"

• /he abatement of a nuisance without judicial proceedings is possible

only if it is a nuisance per se' A gas station is not a nuisance per se or

one affecting the immediate safety of persons and property' Eence# itcannot be closed down or transferred summarily to another location'!3arayno @oellanos"

• 4njury must not be merely perceied# but must be factual' !3arayno"

What is the doctrine of attractie nuisance?

• >ne who maintains on his premises dangerous instrumentalities or

appliances of a character li9ely to attract children in play# and who fails

to exercise ordinary care to preent children from playing therewith orresorting thereto# is liable to a child of tender years who is injuredthereby# een if the child is technically a trespasser in the premises'

• /he reason is that the condition or appliance in %uestion although its

danger is apparent# is so enticing to children of tender years as toinduce them to approach or use it'

• /he attractieness is an implied initation to such children

• .Q).3/4><8 is not applicable to bodies of water# artificial or natural in

the absence of some unusual condition or artificial feature other thanthe mere water and its location'

o A swimming pool is not a nuisance'

o A tan9 of water from an ice plant is not a nuisance as well'

!Eidalgo case"o What if @ollibee is in the middle of the swimming pool?=

.xercise due diligence' >anggalin yung bubuyog na

yan;

Art& 070& E'ery s,ccessi'e owner or #ossessor o" #ro#erty who "ails orre",ses to aate a n,isance in that #ro#erty starte$ y a "ormer owneror #ossessor is liale there"or in the same manner as the one whocreate$ it&

• Generally# only the creator of a nuisance is liable for the damge resulting

therefrom'

• Eoweer# since the injurious effect of a nuisance is a continuing one#

eery successie owner or possessor of property constituting anuisance who fails or refuses to abate it# has the same liability as theoriginal owner'

• 6ut of course# the new owenr must hae actual 9nowledge of the

nuisance'

Art& 072& The aatement o" a n,isance $oes not #recl,$e the right o"any #erson in!,re$ to reco'er $amages "or its #ast e/istence&

Are the remedies exclusie?

• <o'

• /he action to abate nuisance and the action to recoer damages are

distinct remedies either or both of which the plaintiff may pursue at hiselection'

• /he two remedies are concurrent and not exclusie'



100


PROPERTY NOTES



• /he owner of property abated as a nuisance is not entitled to

compensation unless he can show that the abatement is unjustified'

Art& 075& La#se o" time cannot legalie any n,isance+ whether #,lic or#ri'ate&

• General rule8 /he right to bring an action to abate a public or priatenuisance is not extinguished by prescription' :apse of time cannot berelied upon to legalie a nuisance# whether public or priate'

• .xception8 ee Art H-& !*" which expressly prescribes that easements

are extinguished by obstruction and non7use for ten years' !chec9boo9#3CC"

Art& 077& The reme$ies against a #,lic n,isance are%H1 A #rosec,tion ,n$er the Penal :o$e or any local or$inance% orH) A ci'il action( orH. Aatement+ witho,t !,$icial #rocee$ings&

What are the remedies against a public nuisance?

&' 3rosecution under the 3enal )ode or any local ordinance*' A ciil action-' Abatement# without judicial proceedings'

• /hese are not exclusie but cumulatie'

• All of them may be aailed of by public officers# and the last two# by

priate persons# if the nuisance is especially injurious to the latter'

Abatement without judicial proceedings

• /he summary abatement of nuisance without judicial proceedings is

recognied and established een in the absence of statute on theground that the re%uirement of preliminary formal legal proceedings anda judicial trial would result in defeating the beneficial object sought to beobtained'

• 3olice power of the state includes the right to destroy or abate by asummary proceeding whateer may be regarded as a public nuisance#subject to constitutional limitations'

• 3roperty ta9en or destroyed for the purpose of abating a nuisance is not

ta9en for public use# and there is accordingly no obligation to ma9ecompensation for such ta9ing'

Art& 299& The $istrict health o""icer shall ta-e care that one or all o" thereme$ies against a #,lic n,isance are a'aile$ o"&

Art& 291& I" a ci'il action is ro,ght y reason o" the maintenance o" a#,lic n,isance+ s,ch action shall e commence$ y the city orm,nici#al mayor&

Art& 29)& The $istrict health o""icer shall $etermine whether or notaatement+ witho,t !,$icial #rocee$ings+ is the est reme$y against a#,lic n,isance&

What is the role of the district health officer and others with respect to publicnuisance?

• /he district health officer is charged with the duty to see to it that one or

all of the remedies against a public nuisance are aailed of'

• Article I;* does not empower the district health officer to abate a public

nuisance to the exclusion of all other authorities' Eis power is simply todetermine whether or not abatement# without judicial proceedings# is thebest remedy against a public nuisance'

• /he action must be commenced by the city or municipal mayor' 6ut apriate person may also file an action if the public nuisance is especiallyinjurious to him'

•

Art& 29.& A #ri'ate #erson may "ile an action on acco,nt o" a #,licn,isance+ i" it is s#ecially in!,rio,s to himsel"&

Does a priate person hae a right to file action on account of a publicnuisance?

• )ertainly=

• A priate person may also file a ciil action if the public nuisance is

especially injurious to himself' 4n other words# the nuisance becomes asto him a priate nuisance affecting him in a special way different from

that sustained by the public in general'• 4n the absence of a showing of special or unusual damages# differing

from those suffered by the general public# a cause of action does notarise in faor of a priate indiidual

• An action may be maintained by one who is not the sole or een a

peculiar sufferer# if his grieance is not common to the whole public# butis a common misfortune of a number or een a class of persons'



101


PROPERTY NOTES



Art& 294& Any #ri'ate #erson may aate a #,lic n,isance which iss#ecially in!,rio,s to him y remo'ing+ or i" necessary+ y $estroyingthe thing which constit,tes the same+ witho,t committing a reach o"the #eace+ or $oing ,nnecessary in!,ry& =,t it is necessary%H1 That $eman$ e "irst ma$e ,#on the owner or #ossessor o" the#ro#erty to aate the n,isance(

H) That s,ch $eman$ has een re!ecte$(H. That the aatement e a##ro'e$ y the $istrict health o""icer an$e/ec,te$ with the assistance o" the local #olice( an$H4 That the 'al,e o" the $estr,ction $oes not e/cee$ three tho,san$#esos&

What are the conditions for extrajudicial abatement of a public nuisance?

• /he party injured may remoe# and if necessary# destroy thing which

constitutes the nuisance without committing a breach of the peace# ordoing unnecessary damage'

• What should be done?

&' Demand be first made upon the owner or possessor of thenuisance

*' Demand must hae been rejected-' Abatement be approed by the district health officer and executed

with the assistance of the local police' /he alue of the destruction does not exceed 3-;;;'

Art& 29*& The reme$ies against a #ri'ate n,isance are%H1 A ci'il action( or H) Aatement+ witho,t !,$icial #rocee$ings&

Art& 290& Any #erson in!,re$ y a #ri'ate n,isance may aate it yremo'ing+ or i" necessary+ y $estroying the thing which constit,testhe n,isance+ witho,t committing a reach o" the #eace or $oing,nnecessary in!,ry& ;owe'er+ it is in$is#ensale that the#roce$,re "or e/tra!,$icial aatement o" a #,lic n,isance y a #ri'ate#erson e "ollowe$&

What are the remedies against a priate nuisance?&' )iil action*' Abatement# without judicial proceedings'

• 4n abating a nuisance# a person may een go to the extent of destroying

the damn thing which constitutes the nusicance proided8

a' Ee commits no breach of the peace nor causesunnecessary injury# and

b' /he procedure for extrajudicial abatement of publicnuisance prescribed in I; is complied with

Art& 292& A #ri'ate #erson or a #,lic o""icial e/tra!,$icially aating a

n,isance shall e liale "or $amages%H1 I" he ca,ses ,nnecessary in!,ry( or H) I" an allege$ n,isance is later $eclare$ y the co,rts to e not a realn,isance&

4s there liability for damages in case of extrajudicial abatement?

• eeeeeeees=

• A priate or public officer may be held liable for damages'

• /he two grounds of which are8

a' (nnecessary injuryb' /he alleged nuisance is later declared by the courts to be

not a real nuisance'

=OOG III 8I33ERENT MO8ES O3 A:FCIRIN> O<NERS;IP PRELIMINARY PROVISION Art& 21)& Ownershi# is ac6,ire$ y occ,#ation an$ y intellect,alcreation&

Ownershi# an$ other real rights o'er #ro#erty are ac6,ire$an$ transmitte$ y law+ y $onation+ y estate an$ intestates,ccession+ an$ in conse6,ence o" certain contracts+ y tra$ition&

They may also e ac6,ire$ y means o" #rescri#tion& H097a

What is mode?

• Mode is the specific cause which produces them as the result of thepresence of a special condition of things# of the capacity and intention of persons# and of the fulfillment of the re%uisites established by law'

What is title?

• /itle is the juridical act# right or condition which gies the means to their

ac%uisition but which in itself is insufficient to produce them'



102


PROPERTY NOTES



• 4n a contract of sale# the contract is the title and tradition# as a

conse%uence of sale# is the mode'

• ometimes# the mode is at the same time the title !as in with

succession"

Mode /itle

Directly and immediately produces areal right

eres merely to gie the occasionfor its ac%uisition or existence

/he cause /he means

3roximate cause $emote cause.ssence of the right which is to becreated or transmitted

/he means whereby that essence istransmitted

• )ontracts only constitute titles or rights to the transfer or ac%uisition of

ownership# while tradition or deliery is the mode of accomplishing thesame'

What are the different modes and titles of ac%uiring ownership and other realrights? !>:D/43"&' >riginal modes or those independent of any pre7existing right of another

person# namely8a' >ccupation !condition of being without 9nown owner"5 andb' Wor9 which includes intellectual creation !creation#

discoery# or inention"*' Deriatie modes or those based on a pre7existing right held by another

person# namely8a' :aw !existence of re%uired conditions"b' Donation !contract of parties"c' uccession# estate and intestate !death"d' /radition# as a conse%uence of certain contracts !contract

of the parties"# and

e' 3rescription !possession in the concept of owner"

• /he deriatie modes are modes both for the ac%uisition and

transmission of ownership and other real rights' /he transmission mayinole a right in its entirety# or only a part thereof !pledge# mortgage#usufruct"'

• $egistration is not a mode of ac%uiring ownership# and other real rights

but only a means of confirming the fact of their legal existence withnotice to the world at large'

:aw as a mode of ac%uisition?

• When the )iil )ode spea9s of law as a mode of ac%uisition# it refers to

it as a distinct mode or to those cases where the law# independent of theother modes# directly est ownership of a thing in a person once theprescribed conditions or re%uisites are present or complied with'

• .xamples8

&' Eidden treasure*' Art C-' $ier beds !Art H&"' Art HHC' Art H&H' Art &-I' Art &CH

/radition as a mode of ac%uistion

• /radition is a deriatie mode of ac%uiring ownership and other realrights by irtue of which# there being intention and capacity on the partof the grantor and grantee and the pre7existence of said rights in theestate of the grantor# they are transmitted to the grantee through a justtitle' !whut?"

• $e%uisites8

i' 3re7existence in the estate of the grantor of the right to betransmitted

ii' @ust cause or title for the transmissioniii' 4ntention on the part of the grantor to grant and on the part of

the grantee to ac%uirei' )apacity to transmit and to ac%uire' An act which gies it outward form# physically# symbolically or

legally• 3urpose8 non nudis pactis, sed traditione dominia rerum trans%eruntur/

>wnership is transferred# among other means# by tradition' /he delieryof a thing constitutes a necessary and indispensable re%uisite for thepurpose of ac%uiring the ownership of the same by irtue of a contract'

• Ninds8

a' $eal traditionb' )onstructie tradition



103


PROPERTY NOTES



i ' ymbol icii' /radition by public instrumentiii' /raditio longa manui' /radition brei manu' /radition constitutum possessorium

c' ,uasi tradition

d' /radition by operation of law

What do you actually delier?

• >wnership# possession and control of the subject matter'

What if the endor points to the endee a certain house which he alreadysold to the endee# but there are security guards roaming around the lot?

• <o tradition' !As9 @aymie $eyes'"

)ase doctrines

• A stranger to the succession of a dead person cannot conclusiely claim

ownership oer the subject lot on the sole basis of the waier documentwhich neither recites the elements of either a sale# or a donation# or any

other deriatie mode of ac%uiring ownership' !Acap )A"• An affidait not accompanied by any instrument showing the sale

between a purported endor and endee is not a basis of ownership'!Eeirs of dela )ru Eeirs of ,uintos"

• Bor lands of public domain# in order to ac%uire it by prescription# there

must be a declaration of the tate that it’s alienable and disposable and a positie act that states that it is no longer needed for public use' >nlyat that point will the counting for prescription start' !Eeirs of Malabanan"

TITLE ONE O::CPATION Art& 21.& Things a##ro#riale y nat,re which are witho,t an owner+s,ch as animals that are the o!ect o" h,nting an$ "ishing+ hi$$en

treas,re an$ aan$one$ mo'ales+ are ac6,ire$ y occ,#ation& H019

What is the concept of occupation?&' Defined as the appropriation of things appropriable by nature which are

without an owner'*' /he seiure of things corporeal which hae no owner with the intention

of ac%uiring the ownership thereof'

What are the re%uisites of occupation?

&' eiure of a thing*' Must be corporeal personal property-' Must be susceptible of appropriation by nature' Must be without an owner C' Must be an intention to appropriateH' $e%uisites or conditions laid down by law must be complied with

What constitutes seiure?

• 4t is sufficient that there is an act of ta9ing possession# material holding

not being essential as long as the possessor considers the thing assubjected to his control or disposition

• /he thing must be corporeal personal property without 9nown owner

!res nullius" or abandoned by the owner' res communes are notappropriable by nature'

• /he must be an intent to ac%uire ownership# otherwise# the seiure

would not be appropriation in the legal sense# but mere material holding'

>ccupation 3ossession

Mode of ac%uiring ownership Merely raises the presumption of

ownership when it is exercised in theconcept of owner

)orporeal personal property Any property

$e%uires that the object be withoutan owner

May refer to property owned bysomebody

$e%uires an intent to ac%uireownership

)oncept of mere holder

May not ta9e place without someform of possession

May exist without occupation

hort duration Generally of longer duration

6y itself# cannot lead to anothermode of ac%uisition

May lead to another mode# which isprescription

What are the ways by which occupation may be effected?&' 6y hunting and fishing*' 6y finding of moables which neer had any owner -' 6y finding of moables which hae been abandoned by the owner# and' 6y finding of hidden treasure

What about wild animals?

• /hey are possessed only while they are under one’s control'



104


PROPERTY NOTES



When is a thing abandoned# lost or ta9en by force?

• A thing is considered abandoned when the spes recuperandi

!expectation to recoer" is gone and the animo revertendi !intention tohae it returned" is finally gien up by the owner'

• A thing has been lost or ta9en by force is not ipso %acto conerted into a

res nullius so as to belong to the first person who ta9es possession ofthe same without the necessity of proing the mode of his ac%uisitionand it may thus be recoered by the original owner'

Art& 214& The ownershi# o" a #iece o" lan$ cannot e ac6,ire$ yocc,#ation& Hn

• :and is not included among things that can be the object of occupation

the reason is that when the land is without an owner# it pertains to thestate'

• 6ut# what about abandoned priate land?

Art& 21*& The right to h,nt an$ to "ish is reg,late$ y s#ecial laws& H011

Do 4 hae a right to hunt and fish?

• <o'

• trictly spea9ing# no one has a right to hunt or fish'

• /he priilege to hunt or fish# howeer# may be granted and regulated by

law'

Art& 210& The owner o" a swarm o" ees shall ha'e a right to #,rs,ethem to anotherJs lan$+ in$emni"ying the #ossessor o" the latter "or the$amage& I" the owner has not #,rs,e$ the swarm+ or ceases to $o sowithin two consec,ti'e $ays+ the #ossessor o" the lan$ may occ,#y orretain the same& The owner o" $omesticate$ animals may also claimthem within twenty $ays to e co,nte$ "rom their occ,#ation y

another #erson& This #erio$ ha'ing e/#ire$+ they shall #ertain to himwho has ca,ght an$ -e#t them& H01)a

• /his article tal9s of domesticated# not domestic animals'

• With respect to domestic animals# he can claim them een beyond

twenty days from their occupation unless there is abandonment on hispart'

• /his article does not apply to a case where a person has found a

domestic animal and 9ept it for a number of years not 9nowing its owner'

• A domesticated animal which has not strayed or been abandoned

cannot be ac%uired by occupation by a person to whose custody it wasentrusted

• /he periods of two days and twenty days are not periods of limitation#

but conditions precedent to recoery'

Art& 212& Pigeons an$ "ish which "rom their res#ecti'e ree$ing #laces#ass to another #ertaining to a $i""erent owner shall elong to thelatter+ #ro'i$e$ they ha'e not een entice$ y some article o" "ra,$&H01.a

• /his article does not refer to wild pigeons and fish in a state of liberty or

that lie naturally independent of man' /heir occupation is regulated by Art I&C'

• What is contemplated here are pigeons and fish considered as

domesticated animals subject to the control of man in priate breedingplaces'

• /he pigeons and fish must change their breeding place to another

belonging to a different owner'

• (nless enticed by some artifice or fraud# the shall belong to the owner of

the breeding place to which they shall hae transferred'

Art& 215& ;e who y chance $isco'ers hi$$en treas,re in anotherJs#ro#erty shall ha'e the right grante$ him in article 4.5 o" this :o$e&H014

Art& 217& <hoe'er "in$s a mo'ale+ which is not treas,re+ m,st ret,rn i tto its #re'io,s #ossessor& I" the latter is ,n-nown+ the "in$er shallimme$iately $e#osit it with the mayor o" the city or m,nici#ality wherethe "in$ing has ta-en #lace&

The "in$ing shall e #,licly anno,nce$ y the mayor "or twoconsec,ti'e wee-s in the way he $eems est&

I" the mo'ale cannot e -e#t witho,t $eterioration+ or witho,te/#enses which consi$eraly $iminish its 'al,e+ it shall e sol$ at#,lic a,ction eight $ays a"ter the #,lication&

Si/ months "rom the #,lication ha'ing ela#se$ witho,t theowner ha'ing a##eare$+ the thing "o,n$+ or its 'al,e+ shall e awar$e$



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PROPERTY NOTES



to the "in$er& The "in$er an$ the owner shall e olige$+ as the casemay e+ to reim,rse the e/#enses& H01*a

Art& 2)9& I" the owner sho,l$ a##ear in time+ he shall e olige$ to #ay+as a rewar$ to the "in$er+ onetenth o" the s,m or o" the #rice o" thething "o,n$& H010a

• ee codal for rules' Bairly simple'

• /his article is based on the fact that one who lost his property does not

necessarily abandon it' 4f there is no abandonment# the lost thing hasnot become res nullius/

• 3aragraph contemplates implied abandonment'

Title II& INTELLE:TCAL :REATION Art& 2)1& =y intellect,al creation+ the "ollowing #ersons ac6,ireownershi#%

H1 The a,thor with regar$ to his literary+ $ramatic+ historical+legal+ #hiloso#hical+ scienti"ic or other wor-(

H) The com#oser( as to his m,sical com#osition(H. The #ainter+ sc,l#tor+ or other artist+ with res#ect to the

#ro$,ct o" his art(H4 The scientist or technologist or any other #erson with

regar$ to his $isco'ery or in'ention& Hn

Art& 2))& The a,thor an$ the com#oser+ mentione$ in Nos& 1 an$ ) o"the #rece$ing article+ shall ha'e the ownershi# o" their creations e'ene"ore the #,lication o" the same& Once their wor-s are #,lishe$+their rights are go'erne$ y the :o#yright laws&

The #ainter+ sc,l#tor or other artist shall ha'e $ominion o'erthe #ro$,ct o" his art e'en e"ore it is co#yrighte$&

The scientist or technologist has the ownershi# o" his

$isco'ery or in'ention e'en e"ore it is #atente$& Hn

Art& 2).& Letters an$ other #ri'ate comm,nications in writing areowne$ y the #erson to whom they are a$$resse$ an$ $eli'ere$+ ,tthey cannot e #,lishe$ or $isseminate$ witho,t the consent o" thewriter or his heirs& ;owe'er+ the co,rt may a,thorie their #,licationor $issemination i" the #,lic goo$ or the interest o" !,stice sore6,ires& Hn

Art& 2)4& S#ecial laws go'ern co#yright an$ #atent& H4)7a

Title III& 8ONATION

:;APTER ONE

NATCRE O3 8ONATIONS Art& 2)*& 8onation is an act o" lierality wherey a #erson $is#osesgrat,ito,sly o" a thing or right in "a'or o" another+ who acce#ts it&H015a

)oncept of donation

• 4n its generic sense# the term donation includes all forms of gratuitous

dispositions'

• /he donation the article spea9s of and which is goerned by /itle /hree

is the donation proper or the true !or real" donation# or ordinarydonation'

What is the nature and effect of donation?• Although Art I*C defines donation as an act# it is really a contract# with

all the essential re%uisites of a contract'

• 4t falls under contracts of pure beneficence# the consideration being the

mere liberality of the benefactor'

• /he )iil )ode considers donation not among the contracts that transfer

ownership but as a particular mode of ac%uiring and transmittingownership'

• As a mode of ac%uiring ownership# donation results in an effectie

transfer of title oer the property from the moment the donor is madeaware of the acceptance by the donee# proided that the donee is notdis%ualified or prohibited by law from accepting the donation'

• >nce accepted# it is generally considered irreocable# and the donee

becomes owner of property# except8&' on account of officiousness#*' failure of the donee to comply with the charge imposed on the

donation#-' or ingratitude'

• /he effect of donation is to reduce the patrimony or asset of the donor

and to increase that of the donee' Eence# the giing of a mortgage orany other security does not constitute a donation'



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PROPERTY NOTES



$e%uisites of donation&' Donor must hae capacity to ma9e the donation of a thing or right*' Donatie intent !animus donandi " or intent to ma9e the donation out of

liberality to benefit the donee-' /here must be deliery# whether actual or constructie

' Donee must accept or consent to the donation'

• 4n certain donations# the form prescribed by law must be followed !ee

Art I7IK"

• /he subject matter of a donation may be a thing or right' A person may

be a donee although he is incapacitated to enter into a contract if he isnot specially dis%ualified by law to accept donations'

• <ot enough that the act is gratuitous# there must be an intent to benefit

the donee'

• /he acceptance or consent of the donee is re%uired because no once

can be obliged to receie a benefit against his will'

)ase doctrines

• /he essential elements of donation are as follows8o .ssential reduction of the patrimony of the donor

o 4ncrease in the patrimony of the donee

o /he intent to do an act of liberality or animus donandi !Eeirs of

Blorencio Eeirs of de :eon"

• 4n order that the donation of an immoable property may be alid# the

deed of donation must be made in a public document' /he acceptancemust be in a public document as well' !Eeirs of Blorencio"

• $egistration of the deed in the >ffice of the $D or in the Assessor’s

>ffice is not necessary for it to be considered alid and official'$egistration does not est title' /he necessity of registration comes intoplay only when the rights of third persons are affected' Burthermore# theheirs are bound by the deed of contracts executed by theirpredecessors7in7interest' !Eeirs of Blorencio"

• A %uitclaim is not a donation where those who executed the same

merely ac9nowledged the ownership of and better right oer the lot byother persons' !Eeirs of $eyes )alumpang"

• Acceptance is necessary in a donation' /his applies to all 9inds of

donations because the law does not ma9e any distinction' A donationmortis causa ta9es effect only after the death of the donor# conse%uently

it is only after the latter’s death that its acceptance maybe made' !Fita Montanano"

• 3rudent thing to do when drafting deeds of donation8 3lace an

acceptance clause' o# if court considers it inter vivos# then it wouldhae been accepted' 4f court considers it mortis causa# then the clausewould be a mere superfluity# still open to the acceptance of the donee

upon the death of the donor' !Atty Abrenica"• /he purpose of the formal re%uirement for acceptance of a donation is

to ensure that such acceptance is duly communicated to the donor' /heactual 9nowledge by the donor of the construction and existence of theschool building pursuant to the condition of the donation fulfills the legalre%uirement that the acceptance of the donation by the donee becommunicated to the donor' !$epublic ilim"

Art& 2)0& <hen a #erson gi'es to another a thing or right on acco,nt o"the latterJs merits or o" the ser'ices ren$ere$ y him to the $onor+#ro'i$e$ they $o not constit,te a $eman$ale $et+ or when the gi"tim#oses ,#on the $onee a ,r$en which is less than the 'al,e o" thething gi'en+ there is also a $onation& H017

What are the 9inds of donation?&' As to ta9ing effect8

a' 4nter ios or that which ta9es effect during the lifetime ofthe donor

b' Moris causa or that which ta9es effect upon the death ofthe donor

c' 3ropter nuptias or that by reason of marriage*' As to consideration

a' 3ure or simple5 or that the cause of which is the pureliberality of the donor in consideration of the donee’smerits

b' $emuneratory or compensatory5 or that which is gien outof gratitude on account of the serices rendered by thedonee to the donor# proided they do not constitute ademandable debt

c' Modal or that which imposes upon the donee a burden!serices to be performed in the future" less than the alueof the gift

d' >nerous or that the alue of which is considered thee%uialent of the consideration for which it is gien# or that



107


PROPERTY NOTES



made for a aluable consideration# and is thus goernedby the rules on oblicon

-' As to effectiity or extinguishmenta' 3ureb' )ondit ionalc' With a term

/ell me more about remuneratory donations

• 4n this 9ind of donation# the motiating cause is gratitude#

ac9nowledgment of a faor# a desire to repay for past serices

• A donation gien for future serices cannot be remuneratory

• 4t is necessary that the past serices do not constitute a demandable

debto A debt is demandable when it can be legally demanded or enforced

by the donee against the donor who has thus an obligation to pay it'6ut a debt that has been renounced is not a demandable debt'

What about gratuities and pensions?

• While technically a gratuity is different from a donation# in substance#

they are the same'• A gratuity is similar to a pension and is essentially remuneratie

donation'

/ell me more about modal donations

• 4n a modal donation# a burden !which is necessarily future" less than the

alue of the gift is imposed upon the donee'

• 4f the burden is considered the e%uialent of the thing or right gien#

then it’s an onerous donation'

• /he burden may consist in a real or personal charge which is capable of

being alued in terms of money'

What are donations with mixed features?• trictly spea9ing# remuneratory donations are those which are gien on

account of serices rendered by the donee to the donor'

• Modal donations are conditional only in the sense that a burden# charge#

condition or limitation is imposed y the donor but the burden is nottechnically a condition in the sense of an uncertain eent upon whichthe effectitiy or extinguishment of donation is made to depend for it is

really a mere obligation imposed by the donor upon the donee as aconsideration

• Actually# a modal donation has dual nature# it is partly onerous and

partly simple 2 the portion e%uialent to the burden is onerous and isgoerned by the rules on obligations and contracts# while the portionexceeding the alue of the burdens imposed# is simple and must follow

the form of donations'

Earry donates to $on a parcel of land worth -;; galleons* but $on has togie another parcel of land or perform some serice worth &;; galleons# thetransaction is onerous as the &;; galleons which must be in the form of acontract of barter or exchange# and simple as to the *;; galleons whichmust follow the form of donations'

)ase doctrines

• An onerous donation is that which imposes upon the donee a reciprocal

obligation# or to be precise# this is the 9ind of donation made for aaluable consideration# the cost of which is e%ual to or more than thething donated' !)@ ulo $oman )atholic 6ishop of an 3ablo"

• ince onerous donations are goerned by the rules of contracts# theprescription period is &; years !based on a written contract"# and not the7year period based on Article IH !reocation must be brought within years from the non7compliance of the conditions of the donation"' !De:una Abrigo"

• $emuneratory donation is one where the donee gies something to

reward past or future serices or because of future charges or burdens#when the alue of said serices# burdens or charges is less than thealue of the donation' !De :una 7R this definition seems wrong as itincludes future charges# which are necessarily modal"

Art& 2)2& Illegal or im#ossile con$itions in sim#le an$ rem,neratory

$onations shall e consi$ere$ as not im#ose$& Hn

What’s the effect of illegal or impossible conditions?

• (nder Article I*I# the illegal or impossible condition in a simple or

remuneratory donation would be deemed not imposed following the rule

2 As of @uly *;;H# the galleon7dollar exchange rate was &8&H'I*' 4t hasn’t gone below

&8&C eer since' Wala lang# boring ng property eh' Earry 3otter na lang'



108


PROPERTY NOTES



on testamentary dispositions' /he donation will be considered assimiple'

• 4f the donation is onerous !or modal# as to its onerous portion"# the

illegal or impossible condition shall render it oid' 6eing contractual innature# the rule applicable would be that found in Article &&- !chec9codal# if diisible# only condition will be oid"

)ase doctrine

• /he prohibition in the deed of donation against the alienation of the

property for &;; years should be declared as an illegal orimpossible condition within the contemplation of Article I*I')onse%uently# such condition shall be considered as not imposed'<o reliance may accordingly be placed on said prohibitoryparagraph in the deed of donation' !Archbishop of Manila )A"

Art& 2)5& 8onations which are to ta-e e""ect ,#on the $eath o" the $onor #arta-e o" the nat,re o" testamentary #ro'isions+ an$ shall ego'erne$ y the r,les estalishe$ in the Title on S,ccession& H0)9

Art& 2)7& <hen the $onor inten$s that the $onation shall ta-e e""ect$,ring the li"etime o" the $onor+ tho,gh the #ro#erty shall not e$eli'ere$ till a"ter the $onorJs $eath+ this shall e a $onation inter'i'os& The "r,its o" the #ro#erty "rom the time o" the acce#tance o" the$onation+ shall #ertain to the $onee+ ,nless the $onor #ro'i$esotherwise& Hn

4nter ios Mortis causa

/a9es effect during the lifetime of thedonor# independently of his death#een if the actual execution may bedeferred until said death

/a9es effect upon the death of thedonor testator# so that nothing isconeyed to or ac%uired by thedonee until said death

Made out of the donor’s pure

generosity

Made in contemplation of his death

without the intention to lose the thingor its free disposal in case of surial

Falid if the donor suries the donee Foid should the donor surie thedonee

Must follow formalities of donations Must follow formalities for the alidityof a will# otherwise oid

Accepted by the donee during hislifetime

Accepted only after the donor’sdeath

)annot be reo9ed except for Always reocable at any time and for

grounds proided by law !ee IH;#IHC"

any reason before the donor’s death!reocable ad nutum 2 at thediscretion of the grantor"

$ight to dispose of the property iscompletely coneyed to the donee

$ight is retained by the donor whilehe is still alie

ubject to donor’s tax ubject to estate tax

Designation gien to donations not conclusie

• Did the donor intend to transfer ownership of the property donated upon

the execution of the donation? 4f yes# then it is inter vivos/ 4f not# then# itis merely mortis causa'

• 0/o ta9e effect at the death of the creditor1 does not automatically ma9e

it mortis causa' uch statements must be construed with the rest of theinstrument'

Donations to be deliered after the donor’s death

• A distinction must be made between the actual donation and the

execution thereof

• /hat the donation is to hae effect during the lifetime of the donor doesnot mean that the deliery of the property must be made during his life'

• Article I*K spea9s of donations in praesenti which ta9e effect during the

lifetime of the donor but the property shall be deliered after the donor’sdeath'

• uch are inter vivos although the subject matter is not deliered at

once# or the deliery is to be made post mortem# which is a simplematter of form and does not change the nature of the act'

• /he fruits shall belong to the donee from the time of acceptance unless

otherwise proided by the donor'

4nstances

Why is it important to ma9e a distinction between inter vivos and mortiscausa9

• /he distinction between a transfer inter vivos and mortis causa is

important as the alidity or reocation of the donation depends upon itsnature'

• 4f the donation is inter vivos# it must be executed and accepted with the

formalities prescribed by Articles I and IK# except when it is onerousin which case the rules on contracts apply'



109


PROPERTY NOTES



• 4f it is mortis causa# the donation must be in the form of a will# with all

the formalities for the alidity of wills# otherwise it is oid and cannottransfer ownership' Moreoer# mortis causa can be reo9ed any timebefore the death of the donor' !Ganuelas )awed"

What clauses are found in a deed of donation?

&' Eabendum or warranty clause !wherein grantor transfersownership"

*' $edendum or reseration clause !wherein grantor reseressomething new to himself"

-' Acceptance clause

)ase doctrines

• 4t is a settled rule that the title gien to a deed of donation is not the

determinatie factor which ma9es the donation inter vivos or mortiscausa/

• 4n case of doubt# the coneyance should be deemed donation inter

vivos rather than mortis causa# in order to aoid uncertainty as to theownership of the property subject of the deed' !3uig 3enaflorida 2 but

see boo9 which cites the same case but says the opposite"• Donations inter vivos are immediately operatie# een if the actual

execution may be deferred until the death of the donor' Mortis causa#nothing is coneyed to the grantee and nothing is ac%uired by the latter#until the death of the grantor7testator# the disposition being until thenambulatory and not final' !3uig"

• Acceptance clause is a mar9 that the donation is inter vivos'

Acceptance is a re%uirement for donations inter vivos/ Donations moriscausa are not re%uired to be accepted by the donees during the donors’lifetime' !Gestopa )A"

• A limitation on the right to sell during the donors’ lifetime implied that

ownership had passed to the donees and donation was already effectieduring the donors’ lifetime' !Gestopa"

o $eiterated in Alejandro Geralde8 )ondtion that doneescannot sell during donors’ lifetime to a third person the donatedproperty implies immediate passage of ownership and#therefore donation is inter vivos/

• /he reseration of lifetime usufruct indicates that the donor intended to

transfer the na9ed ownership oer the properties# thus ma9ing it intervivos' !Gestopa"

• Bactors in determining whether a donation is one of mortis causa8

&' 4t coneys no title or ownership to the transferee before the death of the transferor5 or what amounts to the same thing# that thetransferor should retain the ownership !full or na9ed" and control ofthe property while alie5

*' /he before his death# the transfer should be reocable by thetransferor at will# ad nutum5 but reocability may be proided for

indirectly by means of a resered power in the donor to dispose ofthe properties coneyed5 and

-' /hat the transfer should be oid if the transferor should surie thetransferee !Maglasang Eeirs of )oraon )abatingan"

• >ne of the decisie characteristics of a donation mortis causa is that the

transfer should be considered oid if the donor should surie the donee!Maglasang"

• Donations mortis causa must be executed in accordance with the

re%uisites on solemnities of wills and testaments under Articles ;C and;H of the )iil )ode

Art& 2.9& The "i/ing o" an e'ent or the im#osition o" a s,s#ensi'econ$ition+ which may ta-e #lace eyon$ the nat,ral e/#ectation o" li"e

o" the $onor+ $oes not $estroy the nat,re o" the act as a $onation inter'i'os+ ,nless a contrary intention a##ears& Hn

Donation inter vivos subject to suspensie condition

• /his article contemplates a situtation where the donor intends the

donation to ta9e effect during his lifetime but he imposes suspensiecondition which may or may not ta9e place beyond his lifetime'

• /he fact that the eent happens or the condition is fulfilled after the

donor’s death does not change the nature of the act as a donation intervivos'

• /he effect of the fulfillment of the suspensie condition is retroactie to

the ma9ing of the donation'

• .Q).3/4><8 when the donor really intended that the donation should

ta9e effect after his death' /hus# mortis causa'

Art& 2.1& <hen a #erson $onates something+ s,!ect to the resol,torycon$ition o" the $onorJs s,r'i'al+ there is a $onation inter 'i'os& Hn

Donation inter ios subject to a resolutory condition



110


PROPERTY NOTES



• 4n these cases# the ownership of the donated property is immediately

transferred to the donee upon perfection of the donation onceacceptance by the donee is made 9nown to the donor'

• A donation subject to a resolutory condition ta9es effect immediately but

shall become inefficacious upon the happening of the eent whichconstitutes the condition'

• .en if the donation is subject to the resolutory condition of the donor’ssurial# the donation is still inter vivos/

o 4 will donate this land to you# but if 4 surie World War 444# 4 will

get it bac9' 4f 4 surie World War 444# the donation is rescinded'4f 4 don’t ma9e it# then it continues in effect'

Art& 2.)& 8onations which are to ta-e e""ect inter 'i'os shall ego'erne$ y the general #ro'isions on contracts an$ oligations in allthat is not $etermine$ in this Title& H0)1

Art& 2..& 8onations with an onero,s ca,se shall e go'erne$ y ther,les on contracts an$ rem,neratory $onations y the #ro'isions o"the #resent Title as regar$s that #ortion which e/cee$s the 'al,e o" the

,r$en im#ose$& H0))

$ules goerning onerous donations or onerous portions of donations

• /his article ma9es the rules of contracts directly applicable to onerous

donations and to remuneratory donations as to the onerous portionthereof

• >nerous donations are donations for a aluable consideration' /hey

include those purely onerous or those in which the consideration isconsidered the e%uialent of the property donated and the modal butonly as regards that portion thereof considered the e%uialent of thealue of the burden imposed'

• $emuneratory donations are true or simple donations because the

consideration is really the liberality of the donor since the serices

rendered by the donee do not constitute a recoerable debt' Eoweer#the special rules on reocation should not apply to the portion of thedonation e%uialent to the e%uitable alue of the serices receied bythe donor'

• /he remuneratory donations referred to in Article I-- are the modal

donations or those which impose 0upon the donee a burden which isless than the alue of the thing gien1 as regards that portion which

exceeds the alue of the burden# it shall be goerned by the proisionson donations'

• /here is no burden imposed on remuneratory donations' 4f a burden is

imposed# it becomes onerous as regards the alue of the burden'

)ase doctrines

• As onerous donations are goerned by the rules on contracts# for thereto warrant a reocation of the donation# there must be a substantialbreach of the conditions in the deed' Mere casual breaches will notwarrant reocations' !)@ ulo $) 6ishop"

• )onsidering that the donee’s acts did not detract from the ery purpose

for which the donation was made but precisely to achiee such purpose!of the donation"# a lac9 of prior written consent of the donor !which wasa condition of the donation" would only constitute casual breach of thedeed' !)@ ulo"

Art& 2.4& The $onation is #er"ecte$ "rom the moment the $onor -nowso" the acce#tance y the $onee& H0).

3erfection of donation• /here is no donation without acceptance by the donee'

• Acceptance is indispensable because nobody is obliged to receie a

benefit against his will'

• 4ts absence ma9es the donation null and oid'

• /he acceptance must be made during the lifetime of the donor and the

donee'

• 3erfection ta9es place# not from the time of acceptance by the donee#

but from the time it is made 9nown# actual or constructiely# to the donor'

• 4f the donation and acceptance are in the same public instrument#

signed by both and in the presence of witnesses# the donation isdeemed already perfected inasmuch as 9nowledge of the acceptance isestablished by the instrument itself'

• 4f acceptance was made in a separate instrument# there must be proof

that a formal notice of such acceptance was receied by the donor# andin case the donation inoles immoable property# noted in both thedeed of donation and the separate instrument embodying theacceptance' !ee Art IK"

What if there is reocation?



111


PROPERTY NOTES



• 4f the donor reo9es the donation before learning of the acceptance by

the donee# there is no donation'

• 6ut once it is perfected# it cannot be reo9ed without the consent of the

donee except8&' 4nofficiousness !Art IH;"*' Bailure of the donee to comply with the charges imposed in the

donation !Art IH"-' 4ngratitude !Art IHC"

4s registration necessary?

• As between the parties to the donation and their assigns# it is not

needed for its alidity and efficacy' !6ut it must be in a public documentfor immoables="

• 6ut for third parties to be bound# there must be registration'

)ase doctrines

• /he purpose of the formal re%uirement for acceptance of a donation is

to ensure that such acceptance is duly communicated to the donor' /heactual 9nowledge by the donor of the construction and existence of the

school building pursuant to the condition of the donation fulfills the legalre%uirement that the acceptance of the donation by the donee becommunicated to the donor' !$epublic ilim"

:;APTER )PERSONS <;O MAY >IVE OR RE:EIVE A 8ONATION Art& 2.*& All #ersons who may contract an$ $is#ose o" their #ro#ertymay ma-e a $onation& H0)4

)apacity of donor to contract and dispose of property

• /he donor must hae both the capacity to contract and the capacity to

dispose of his property in order that he may ma9e a donation'• /hose who cannot gie consent to a contract cannot be donors5 and

donation made by one who does not hae the free disposal of the thingdonated and to alienate it shall not be alid'

• 4t is possible# howeer# for a person to hae capacity to contract but not

the capacity to dispose of property'o (nder the Bamily )ode# eery donation between spouses

during the marriage shall be oid except moderate gifts on the

occasion of any family rejoicing' /he prohibition applies also topersons liing together as husband and wife without a alidmarriage# or in illicit relations'

o <either spouse may donate any community property nor

conjugal partnership property without the consent of the other#except moderate donations for charity or on occasion of family

rejoicing or family distress'

)an corporations ma9e donations?

• es' 6ut they can’t gie donations to aid any political party or candidate

or for purposes of partisan political actiity'

Who are incapacitated to donate?&' Minors*' 4nsane or demented persons-' Deaf7mutes who do not 9now how to write' )orporations !with regard to giing donations to aid any political party"C' Guardians and trustees !with regard to property entrusted to them"H' pouses !to each other# except moderate gifts"

I' A spouse !to others without the consent of the other spouse# exceptmoderate donations"

Art& 2.0& >,ar$ians an$ tr,stees cannot $onate the #ro#erty entr,ste$to them& Hn

Donation by a guardian or trustee of ward’s property

• Generally# guardians and trustees cannot be donors of their ward’s

properties for the simple reason that they are not the owners of thesame'

• .xception8 With respect to the trustee# donation is permitted

notwithstanding that the trustee receies nothing in exchange directly# if

the donation is onerous and is beneficial to the beneficiary'

Art& 2.2& The $onorJs ca#acity shall e $etermine$ as o" the time o" thema-ing o" the $onation& Hn

)apacity of donor at time of ma9ing the donation

• /he donation is perfected from the moment the donor 9nows of the

acceptance by the donee'


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PROPERTY NOTES



• Eoweer# this article seems to imply that the donor’s capacity must exist

at the time of ma9ing the donation and not from the time of 9nowledgeby the donor of the acceptance# that is# at the perfection of the act

• A juridical absurdity arises in case the donor has no capacity to act at

the time the acceptance is coneyed to him' ince legally# the donorcannot be said to hae 9nowledge of the acceptance# there can be no

perfection of the donation which presupposes a meeting of the mindsbetween the donor and the donee who are both capacitated'

• /o aoid the apparent contradiction# the phrase 0ma9ing of the donation1

should be construed to mean 0perfection of the donation1

• Eence# the donation would be alid# although the donor was insane at

the time he signs the deed of donation or informs the donee of thedonation but sane when he learns of the acceptance' /he donor mayas9 for annulment of the donation if he so desires

• /he subse%uent incapacity of the donor does not affect the alidity of

the donation' /his is similar to the rule in succession'

Art& 2.5& Al those who are not s#ecially $is6,ali"ie$ y law there"or mayacce#t $onations& H0)*

)apacity of the donee

• Generally# all persons# whether natural or artificial# may be donees'

• A donee need not be sui juris# with complete legal capacity to bind

himself by contract'

• As long as he is 0not specially dis%ualified by law1# he may accept

donations'

• o# donations may be made to8

&' 4ncapacitated persons such as minors and others who cannot enter into a contract#

*' and also to conceied and unborn children'

Art& 2.7& The "ollowing $onations shall e 'oi$%

H1 Those ma$e etween #ersons who were g,ilty o" a$,lteryor conc,inage at the time o" the $onation(

H) Those ma$e etween #ersons "o,n$ g,ilty o" the samecriminal o""ense+ in consi$eration thereo"(

H. Those ma$e to a #,lic o""icer or his wi"e+ $escen$ants an$ascen$ants+ y reason o" his o""ice&

In the case re"erre$ to in No& 1+ the action "or $eclaration o"n,llity may e ro,ght y the s#o,se o" the $onor or $onee( an$ the

g,ilt o" the $onor an$ $onee may e #ro'e$ y #re#on$erance o"e'i$ence in the same action& Hn

Donations oid on moral grounds

• /his article declares null and oid ab initio the donations referred to'

What are the different oid donations?&' 6etween persons who were guilty of adultery and concubinage at

the time of the donation*' 6etween persons found guilty of the same criminal offense# in

consideration thereof -' Made to a public officer or his wife# descendants and ascendants#

by reason of his office' 6etween spouses during the marriage# except moderate gifts which

they may gie each other on the occasion of any family rejoicing!Art I# Bamily )ode"

C' Donations of community property by a spouse without the consentof the other# except moderate donations !Art K# Bamily )ode"

H' Donations of conjugal partnership property by a spouse without the

consent of the other# except moderate donations !Art &*C# Bamily)ode"I' Donations to those proided for in Article I;# in cross reference to

Art &;*I and &;-*'' Donations accepted by agents without special authority to do so

!Art IC"K' Donations of immoables which don’t conform to the form

prescribed in Art IK

Donations between persons guilty of adultery and concubinage

• /he ciil action for declaration of nullity may be brought after the

persons inoled hae been found guilty by final judgment in a criminalproceeding of adultery or concubinage'

• 4n iew of the last paragraph# coniction for adultery or concubinage in a

criminal action is not essential'

• /he guilt of the donor and the donee may be proed by a mere

preponderance of eidence in a ciil proceeding to nullify the donation#alleging the adultery or concubinage as the cause of action for thedeclaration of nullity'

• /he donation is oid# whether made before or after the illicit relations# if

gien in consideration thereof# either as inducement or compensation'


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• What if the donation is gien in contemplation of the termination of the

relationship# is the donation still oid?o ince the purpose is praiseworthy# good for all concerned# it should

be considered alid'o /his is particularly true when the woman !donee" was a ictim of

deceit by the man'o Eoweer# where the illicit relation was oluntary# and the donation

was demanded by the woman as a price of the termination of theirrelationship# the donation is oid'

• What if the concubine did not 9now that the man she lied with was

actually married?o /hen she is not guilty of concubinage and not dis%ualified from the

donation'

Donations between persons found guilty of the same criminal offense

• /his rules presupposes prior criminal coniction in a criminal action5

hence proof of guilty by mere preponderance of eidence is notsufficient'

• /he donation here is remuneratory or onerous' 4t is oid whether made

before or after the commission of the crime if it is in considerationthereof'

• 4t is still oid although the crime is not carried out because it is based on

an unlawful cause'

Donations made to a pubic officer# by reason of his office

• 4ndirect bribery=

/he guilt need not be established by proof beyond reasonable doubt ina criminal proceeding for bribery'

• A ciil action to declare the donation oid may be maintained by the

proper party in interest'

• Donations made to persons other than those mentioned are alid#

unless# of course# they are intended for the public officer'

Art& 249& Inca#acity to s,ccee$ y will shall e a##licale to $onationsinter 'i'os& Hn

4ncapacity to succeed by will

• /his article expressly ma9es the proisions on incapacity to succeed by

will applicable to donations inter vivos

• >f course# they are also applicable to donations mortis causa which are

goerned by the law on succession

• According to Art &;*I# the following are incapable of becoming donees8

&' /he priest who heard the confession of the donor during his lastillness# or the minister of the gospel who extended spiritual aid tohim during the same period

*' /he relaties of such priest or minister of the gospel within thefourth degree# the church# order# chapter# community# organiation#or institution to which such priest or minister may belong

-' A guardian with respect to donations gien by a ward in his faorbefore the final accounts of the guardianship hae been approed#een if the donor should die after the approal thereof5neertheless# any proision made by the ward in faor of theguardian when the latter is his ascendant# descendant# brother#sister# or spouse# shall be alid

' Any physician# surgeon# nurse# health officer or druggist who too9care of the donor during his last illness

C' 4ndiiduals# associations# and corporations not permitted by law toinherit'

• According to Art &;-*# there are certain people who are deemedincapable to inherit by reason of unworthiness' /he donation made to aperson who falls under any of its proisions is alid if the donor had9nowledge of the act of unworthiness or haing 9nown it subse%uently#he should condone the same in writing' .en in the absence of pardon#the donation is not subject to reocation because donations may bereo9ed only for causes mentioned in Articles IH;# IH and IHC' o#who are these people?&' 3arents who hae abandoned their children or induced their

daughters to lead a corrupt or immoral life# or attempted againsttheir irtue5

*' Any person who has been conicted of an attempt against the life of the testator# his or her spouse# descendants# or ascendants5

-' Any person who has accused the testator of a crime for which thelaw prescribes imprisonment for six years or more# if the accusationhas been found groundless5

' Any heir of full age who# haing 9nowledge of the iolent death ofthe testator# should fail to report it to an officer of the law within amonth# unless the authorities hae already ta9en action5 thisprohibition shall not apply to cases wherein# according to law# thereis no obligation to ma9e an accusation5


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PROPERTY NOTES



C' Any person conicted of adultery or concubinage with the spouse of the testator5

H' Any person who by fraud# iolence# intimidation# or undue influenceshould cause the testator to ma9e a will or to change one alreadymade5

I' Any person who by the same means preents another from ma9ing

a will# or from reo9ing one already made# or who supplants#conceals# or alters the latterSs will5

' Any person who falsifies or forges a supposed will of the decedent'

Who are incapable of becoming donees?&' 3ersons guilty of concubinage or adultery at the time of donation !but

only between them"*' 3ersons found guilty of the same criminal offense# in consideration

thereof !but only between them"-' 3ublic officers# etc by reason of their office' /hose mentioned in Art &;*IC' /hose mentioned in Art &;-* !unworthy people"

Art& 241& Minors an$ others who cannot enter into a contract mayecome $onees ,t acce#tance shall e $one thro,gh their #arents orlegal re#resentati'es& H0)0a

>9# tell me more about donations to minors and others without capacity tocontact

• Donation re%uires acceptance by the donee'

• 4f the donee is a minor or without capacity to enter into a contract# the

acceptance must be made by the parents or legal representatie of thedonee'

• /his is especially true if the donation is onerous or imposes a charge or

burden'

• 4t is clear that the donee may not alidly accept a donation although it

imposes no burden'

• 4n any case# when a formal or written acceptance is re%uired by the

donor# such acceptance must be made by the parents or legalrepresentatie'

Art& 24)& 8onations ma$e to concei'e$ an$ ,norn chil$ren may eacce#te$ y those #ersons who wo,l$ legally re#resent them i" theywere alrea$y orn& H0)2

)an you donate to conceied and unborn children?

• es=

• De :eon once again states the obious by saying# 0A conceied and

unborn child cannot accept a donation because it is not yet a naturalperson'1

• /he acceptance must be made by those persons who would legallyrepresent them if they were already born'

Art& 24.& 8onations ma$e to inca#acitate$ #ersons shall e 'oi$+tho,gh sim,late$ ,n$er the g,ise o" another contract or thro,gh a#erson who is inter#ose$& H0)5

Who are the incapacitated persons referred to here?

• /hey are those specially dis%ualified by law to become donees# such as

those in Articles I-K and I;'

• Donations to such persons are oid een if simulated under the guise of

another contract or through an intermediary'

Art& 244& 8onations o" the same thing to two or more $i""erent $oneesshall e go'erne$ y the #ro'isions concerning the sale o" the samething to two or more $i""erent #ersons& Hn

Donations of the same thing to different donees• /his article expressly ma9es applicable by analogy the rules on sales- of

the same thing to two ore more different endees'• Eoweer# this article has had its sure of criticism' ee boo9'

Art& 24*& The $onee m,st acce#t the $onation #ersonally+ or thro,gh ana,thorie$ #erson with a s#ecial #ower "or the #,r#ose+ or with ageneral an$ s,""icient #ower( otherwise+ the $onation shall e 'oi$&H0.9

3 0Art' &C' 4f the same thing should hae been donated to different donees# the ownership

shall be transferred to the person who may hae first ta9en possession thereof in good faith#if it should be moable p roperty' hould it be immoable property# the ownership shall belongto the person ac%uiring it who in good faith first recorded it in the $egistry of 3roperty' houldthere be no inscription# the ownership shall pertain to the person who in good faith was firstin the possession5 and# in the absence thereof# to the person who presents the oldest title#proided there is good faith'1


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PROPERTY NOTES



Who must accept the donation?&' /he donee personally# or *' An authoried person or an agent# with a special power for the

purpose# or with a general and sufficient power

4f not?

• /hen# the donation is oid'

Does the parent o% a minor need a special power %or the purpose o%accepting a donation9 3robably not# a parent is not considered an agent of aminor' /hey are considered legal guardians' !6ut 4’m not sure'"

Art& 240& Acce#tance m,st e ma$e $,ring the li"etime o" the $onor an$o" the $onee& Hn

When should acceptance be made for inter vivos?

• A donation inter vivos ta9es effect during the lifetime of the donor and

the donee# and to ta9e effect# it must be accepted by the donee'

• Eence# acceptance by the donee !or his representatie" must be made

during his lifetime and that of the donor'• .en if the donation is made during their lifetime# but the donor dies

before the acceptance is communicated to him# the donation is notperfected'

Eow about for mortis causa9

• Donations mortis causa are accepted only after the donor’s death

because they parta9e of a will# and are goerned by the rules onsuccession'

• 4f the acceptance was made before the donor’s death# the donation

mortis causa although alidly executed# cannot be gien force andeffect' uch acceptance is oid' !6ut is the donation oid? )an there bea subse%uent acceptance after the death of the donor?"

Art& 242& Persons who acce#t $onations in re#resentation o" otherswho may not $o so y themsel'es+ shall e olige$ to ma-e thenoti"ication an$ notation o" which Article 247 s#ea-s& H0.1

When does this article apply?&' When acceptance is made through the parents# legal representatie# or

authoried agent of the donee5

*' /he property donated is immoable# and-' /he acceptance is not made in the same deed of donation but in a

separate public instrument'

• /he re%uirement of notification of the donor and notation in both

instruments that such notification has been made is necessary for the

alidity and perfection of the donation'

Art& 245& The $onation o" a mo'ale may e ma$e orally or in writing&An oral $onation re6,ires the sim,ltaneo,s $eli'ery o" the

thing or o" the $oc,ment re#resenting the right $onate$&I" the 'al,e o" the #ersonal #ro#erty $onate$ e/cee$s "i'e

tho,san$ #esos+ the $onation an$ the acce#tance shall e ma$e inwriting+ otherwise+ the $onation shall e 'oi$& H0.)a

What are the rules for the formalities for donations for moables?

• When the alue of property exceeds 3C;;;# the donation and the

acceptance must always be made in writing5 otherwise the donation isoid# een if there is simultaneous deliery of the thing'o

/he donation and the acceptance need not be made in a publicinstrument# nor is it necessary that the acceptance be made in thesame deed of donation'

• When the alue of property is 3C;;; or less# it may be made orally or in

writing'o 4f made orally# there must be simultaneous deliery of the thing or of

the document representing the right donated# otherwise# thedonation is oid' /here must be acceptance which may be oral orwritten' /he receipt of the deliery by the donee constitutes impliedacceptance'

o 4f made in writing# the donation is alid although there is no

simultaneous deliery' Again# there must be acceptance which mayalso be made orally or in writing'

•

4n eery case# the acceptance of the donee must be made 9nown to thedonor for perfection of a donation to ta9e place'

Art& 247& In or$er that the $onation o" an immo'ale may e 'ali$+ itm,st e ma$e in a #,lic $oc,ment+ s#eci"ying therein the #ro#erty$onate$ an$ the 'al,e o" the charges which the $onee m,st satis"y&


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PROPERTY NOTES



The acce#tance may e ma$e in the same $ee$ o" $onation orin a se#arate #,lic $oc,ment+ ,t it shall not ta-e e""ect ,nless it is$one $,ring the li"etime o" the $onor&

I" the acce#tance is ma$e in a se#arate instr,ment+ the $onorshall e noti"ie$ thereo" in an a,thentic "orm+ an$ this ste# shall enote$ in oth instr,ments& H0..

Bormalities for donation of immoables

• /his article does not apply to onerous donations since they are

goerned by the laws of obligations and contracts

• Donation of real property# which is a solemn contract# is oid without the

formalities stated in Article IK

o# what are the rules?

• When donation and acceptance are in the same instrument# the

re%uirements are8&' /he donation must be in a public document or instrument5 and*' /he instrument must specify the property donated and the charges#

if any# which the donee must satisfy'

• When the donation and acceptance are in separate instruments# there%uirements are8&' /he donation must be in a public document or instrument5*' /he instrument must specify the property donated and the charges#

if any# which the donee must satisfy-' /he acceptance by the donee must be in a public document' 4t must be done during the lifetime of the donor C' /he donor must be notified in authentic form of the acceptance of

the donation in a separate instrument5 andH' /he fact that such notification has been made must be noted in

both instruments'o 6ut see the $ep ilim case wherein the notification was not

noted in the instrument# but still# the ) ruled that the donation

was alid'

• /he donation of real property in a priate instrument is null and oid#

and the donee may not compel the donor to execute a public instrument!&-CI" which applies only when the contract or donation is alid andenforceable' /he donation cannot be ratified'

• $egistration is not necessary for the donation to be considered alid and

effectie'

• Brom the time the public instrument of donation is simultaneously

executed and ac9nowledged by the donor and the donee# the latterac%uires the ownership of the donated property# since the execution of apublic instrument of coneyance is one of the recognied ways in whichtradition of immoable property may be made# unless the contrary isexpressed or inferable from the terms of the deed'

• /itle to immoable property does not pass from the donor to the doneeby irtue of donation until and unless it has been accepted in publicinstrument and the donor duly notified thereof'

• Where the donation is on its face absolute and unconditional# it is error

to imply that the possession or usufruct is excluded from the donation or the donation is subject to any charge or burden' /he absence in thedeed of any reseration in faor of the donor is proof that no suchreseration was eer intended considering that under the law# adonation of immoable by public instrument is re%uired to specify 0thealue of the charges1 that the donee must assume'

)ase doctrines

• /he best or primary eidence of a donation of real property is an

authentic copy of the deed of donation with all the formalities re%uiredby Article IK' When a party wants to proe the contents of adocuments# the best eidence is the original writing itself'

• 3rior to the introduction of secondary eidence# a party must establish

the existence and due execution of the instrument# after which he mustproe that the document was lost or destroyed' !D.) Del $osario"

• Where the deed of donation fails to show the acceptance# or where the

formal notice of the acceptance# made in a separate instrument is notgien to the donor or else not noted in the deed of donation and in theseparate acceptance# the donation is null and oid' !umipat 6anga"

:;APTER .E33E:T O3 8ONATIONS AN8 LIMITATIONS T;EREON Art& 2*9& The $onations may com#rehen$ all the #resent #ro#erty o" the$onor+ or #art thereo"+ #ro'i$e$ he reser'es+ in ",ll ownershi# or in,s,"r,ct+ s,""icient means "or the s,##ort o" himsel"+ an$ o" allrelati'es who+ at the time o" the acce#tance o" the $onation+ are y lawentitle$ to e s,##orte$ y the $onor& <itho,t s,ch reser'ation+ the$onation shall e re$,ce$ in #etition o" any #erson a""ecte$& H0.4a


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$eseration of sufficient means for support of donor and relaties

• A donor may donate all his present property or part thereof proided he

reseres sufficient property in ownership or in usufruct for the support of himself and of all relaties who are entitled to be supported by him atthe time of the perfection of the donation

• 3resent property means property which the donor can rightfully dispose

of at the time of the donation'o /he share in an existing inheritance is present property

although the heir has not yet entered into the possession of thesame'

• /he donation of present property without the re%uired reseration is not

null and oid in its entirety5 it is only subject to reduction by the court onpetition of the party prejudiced by the donation 2 the donor himself# anydependent relatie or creditor of the donor'

• /he limitation applies to simple# remuneratie and modal donations but

not to onerous ones which are goerned by the law on obligations andcontracts# nor to donations mortis causa for they ta9e effect only afterthe donor’s death'

• Donations propter nuptias cannot exceed more than one7fifth of the

present property of the future spouses if in their marriage settlementsexecuted before the marriage# they agree upon a regime other than theabsolute community of property'

)ase doctrines

• When the dnor stated that she would continue to retain the 0possession#

cultiation# haresting and all other rights and atrtributes of ownership1she meant only dominium utile# not the full ownership' /he words 0rightsand attributes of ownership1 should be construed ejusdem generis with

4 Art' *' Donations by reason of marriage are those which are made before its celebration# in

consideration of the same# and in faor of one or both of the future spouses' !&*H"

Art' -' /hese donations are goerned by the rules on ordinary donations established in /itle 444 of6oo9 444 of the )iil )ode# insofar as they are not modified by the following articles' !&*Ia" Art' ' 4f the future spouses agree upon a regime other than the absolute community of property#they cannot donate to each other in their marriage settlements more than one7fifth of their presentproperty' Any excess shall be considered oid'Donations of future property shall be goerned by the proisions on testamentary succession andthe formalities of wills' !&-;a" Art' C' Donations by reason of marriage of property subject to encumbrances shall be alid' 4ncase of foreclosure of the encumbrance and the property is sold for less than the total amount ofthe obligation secured# the donee shall not be liable for the deficiency' 4f the property is sold formore than the total amount of said obligation# the donee shall be entitled to the excess' !&-&a"

the preceding rights of 0possession# cultiation and haresting1expressly enumerated in the deed' !)ueas )ueas"

Art& 2*1& 8onations cannot com#rehen$ ",t,re #ro#erty&=y ",t,re #ro#erty is ,n$erstoo$ anything which the $onor

cannot $is#ose o" at the time o" the $onation& H0.*

Donation of future propertyJ 3$>E464/.D=

• Buture property is anything which the donor cannot dispose of at the

time of the donation' 4n other words# it is property that belongs to othersat the time the donation is made and it is immaterial that it maysubse%uently belong to the donor'

• <obody can dispose of that which does not belong to him' <emo emo'

• *uture inheritance cannot be donated because it is future property but

upon the death of his predecessor# the inheritance ceases to be futureand conse%uently# may be the object of donation een if the propertiesconstituting the inheritance hae not yet been deliered'

• 3roperty# the ac%uisition of which by the donor depends upon the

fulfillment of a suspensie condition# may be donated because# although

the property may be as to him still 0future property1# the effects of thefulfillment of the condition shall retroact to the day of the constitution ofthe contract'

• Another reason is that the donor by desisting to ac%uire a future

property donated would be reo9ing the donation contrary to the rulethat donations inter vivos are irreocable sae for causes proided bylaw'

)ase doctrine

• A donor cannot lawfully coney what is not his property' Where a parcel

of land was the registered property of another# and the donee failed toshow how her donor ac%uired it from the registered owner# it is held thatthe donor has no right# title or interest in said land which he could

lawfully coney'

Art& 2*)& The #ro'isions o" Article 2*9 notwithstan$ing+ no #erson maygi'e or recei'e+ y way o" $onation+ more than he may gi'e or recei'ey will&

The $onation shall e ino""icio,s in all that it may e/cee$ thislimitation& H0.0


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http://www.chanrobles.com/civilcodeofthephilippines.htm





Amount of donation limited to what donor may gie by will

• Article IC* ma9es applicable to donations the limitation on testamentary

disposition with respect to the amount thereof'

• /he limitation is really on the right of the donor to gie rather than on the

right of the donee to receie'

• A person may not donate more than he can gie by will and a personmay not receie by way of donation more than what the donor is allowedby law to gie by will5 otherwise# the donation shall be inofficious andshall be reduced with regard to the excess'

• /he limitation applies where the donor has forced or compulsory heirs'

/he purpose is not to diminish the legitimes to which they are entitled'o 6ut the limitation is enforceable only after the death of the

donor because it is only then when it can be determinedwhether or not the donation is inofficious5 by contrasting itsalue with the net alue of the estate of the donor deceased'

o /he donation is alid during the lifetime of the donor'

Art& 2*.& <hen a $onation is ma$e to se'eral #ersons !ointly+ it is

,n$erstoo$ to e in e6,al shares+ an$ there shall e no right o"accretion among them+ ,nless the $onor has otherwise #ro'i$e$&

The #rece$ing #aragra#h shall not e a##licale to $onationsma$e to the h,san$ an$ wi"e !ointly+ etween whom there shall e aright o" accretion+ i" the contrary has not een #ro'i$e$ y the $onor&H0.2

Donation to seeral donees jointly

• /he rules are as follows8

&' /he donation is understood to be in e%ual shares# unless the donorhas proided otherwise'

*' /here shall be no right of accretion among the donees# unless thedonor has otherwise proided'

-' 4f the donees are husband and wife# there shall be aright ofaccretion# if the contrary has not been proided by the donor'

• 4f there is no accretion among the donees# one cannot accept

independently for his co7donee who is not present'

Art& 2*4& The $onee is s,rogate$ to all the rights an$ actions which incase o" e'iction wo,l$ #ertain to the $onor& The latter+ on the otherhan$+ is not olige$ to warrant the things $onate$+ sa'e when the

$onation is onero,s+ in which case the $onor shall e liale "or e'ictionto the conc,rrence o" the ,r$en&

The $onor shall also e liale "or e'iction or hi$$en $e"ects incase o" a$ "aith on his #art& H0.5a

$ights and actions

• Eere are the rules8&' /he donee is subrogated to all the rights and actions which in case

of eiction would pertain to the donor *' 4f the donation is simple or remuneratie# the donor is not liable for

eiction or hidden defects# becaue the donation is gratuitous5-' .en if the donation is simple or remuneratie# the donor is liable

for eiction or hidden defects in case of bad faith on his part!'nowingly donating a chic'en with avian %lu) or warranty isexpressly stipulated5 and

' 4f the donation is onerous !modal donation# according to de :eon"#the donor is liable on his warranty but only to the extent of theburden'

Art& 2**& The right to $is#ose o" some o" the things $onate$+ or o" someamo,nt which shall e a charge thereon+ may e reser'e$ y the$onor( ,t i" he sho,l$ $ie witho,t ha'ing ma$e ,se o" this right+ the#ro#erty or amo,nt reser'e$ shall elong to the $onee& H0.7

Donation with right of donor to dispose of part of object donated# resered'

• /he donor may resere the right to dispose of some of the things or part

of the thing donated or some amount or income thereof'

• /he donation is actually conditional# and the condition is fulfilled if the

donor dies without exercising the right he resered# either by acts intervivos or mortis causa/

$on donates to Earry a house and an apartment with the proision that $oncould sell the house and gie the rents !or a portion" of the apartment for Cyears to Bran9' /he donation of the house with a reseration of the right todispose should be considered mortis causa# and therefore# must follow theformalities prescribed for ma9ing a will' /he donation of the apartment isinter vivos/

Art& 2*0& The ownershi# o" #ro#erty may also e $onate$ to one #ersonan$ the ,s,"r,ct to another or others+ #ro'i$e$ all the $onees are li'ingat the time o" the $onation& H049a


119


PROPERTY NOTES



<a9ed ownership and usufruct separately donated

• /he donor may donate separately the na9ed ownership !dominium

directum" to one person and the usufruct !dominium utile" to another'

• /o be alid# the donee must be 0liing at the time of the donation1# which

is to be understood to refer to the time of the perfection of the donation'

• A donation to a child who was not yet conceied at the time it was madeis oid'

• 4f the property donated is immoable# the formalities for donations of

real property must be complied with'

Art& 2*2& Re'ersion may e 'ali$ly estalishe$ in "a'or o" only the$onor "or any case an$ circ,mstances+ ,t not in "a'or o" other#ersons ,nless they are all li'ing at the time o" the $onation&

Any re'ersion sti#,late$ y the $onor in "a'or o" a thir$#erson in 'iolation o" what is #ro'i$e$ in the #rece$ing #aragra#h shalle 'oi$+ ,t shall not n,lli"y the $onation& H014a

Donation with proision for reersion

• /he donor may proide for reersion# whereby the property shall gobac9 to the donor or some other person'

• 4t may be alidly established for any case and circumstances'

• 4f the reision is in faor of other persons# they must be liing at the time

of the donation'

• /hus# a reersion in faor of an unconceied child is oid# but such

nullity shall not inalidate the donation' /he reersion which is merely anaccessory clause is simply disregarded'

Art& 2*5& <hen the $onation im#oses ,#on the $onee the oligation to#ay the $ets o" the $onor+ i" the cla,se $oes not contain any$eclaration to the contrary+ the "ormer is ,n$erstoo$ to e liale to #ay

only the $ets which a##ear to ha'e een #re'io,sly contracte$& In nocase shall the $onee e res#onsile "or the $ets e/cee$ing the 'al,eo" the #ro#erty $onate$+ ,nless a contrary intention clearly a##ears&H04)a

Art& 2*7& There eing no sti#,lation regar$ing the #ayment o" $ets+ the$onee shall e res#onsile there"or only when the $onation has eenma$e in "ra,$ o" cre$itors&

The $onation is always #res,me$ to e in "ra,$ o" cre$itors+when at the time thereo" the $onor $i$ not reser'e s,""icient #ro#ertyto #ay his $ets #rior to the $onation& H04.

:iability of donee to pay debts of donor

• Eere are the rules'

&' Where donor imposes obligation upon the donee8a' /he donee is liable to pay only debts preiously

contracted5b' Ee is liable for subse%uent debts only when there is a

stipulation to that effect5 andc' Ee is not liable for debts in excess of the alue of the

donation receied# unless the contrary is intended'*' Where there is no stipulation regarding the payment of debts

a' /he donee is generally not liable to pay the donor’s debts5b' Ee is responsible therefore only if the donation has been

made in fraud of creditors !which is always presumedwhen at the time of the donation the donor has not leftsufficient assets to pay his debts"

c' Ee is not liable beyond the alue of the donation receied'

• >rdinarily# the donee should not be made liable to pay the donor’s debt

beyond the alue of the thing donated'

Donation in fraud of creditors

• 3resumed in fraud when at the time thereof the donor did not resere

sufficient property to pay his debts prior to the donation'

• /he creditors of the donor at the time of the donation may exercise the

subsidiary right of rescission when they cannot in any manner collectthe claims due them !accion pauliana) unless the property donated haspassed into the hands of a third person in good faith for alue' 4n thelatter case# the donee shall answer for damages if he acted in bad faith'

)ase doctrine

• $e%uisites for an accion pauliana8

&' )redit prior to alienation# een if demandable later *' Debtor has made a subse%uent contract coneying a patrimonial

benefit to a -rd person-' /he creditor has no legal remedy to satisfy his claim' /he act being impugned is fraudulentC' /he third person who receied the property coneyed# if is by

onerous title# has been an accomplice in the fraud'


120


PROPERTY NOTES



• 6ut remember that accion pauliana is subsidiary'

:;APTER 4REVO:ATION AN8 RE8C:TION O3 8ONATIONS Art& 209& E'ery $onation inter 'i'os+ ma$e y a #erson ha'ing nochil$ren or $escen$ants+ legitimate or legitimate$ y s,se6,entmarriage+ or illegitimate+ may e re'o-e$ or re$,ce$ as #ro'i$e$ in thene/t article+ y the ha##ening o" any o" these e'ents%

H1 I" the $onor+ a"ter the $onation+ sho,l$ ha'e legitimate orlegitimate$ or illegitimate chil$ren+ e'en tho,gh they e #osth,mo,s(

H) I" the chil$ o" the $onor+ whom the latter elie'e$ to e$ea$ when he ma$e the $onation+ sho,l$ t,rn o,t to e li'ing(

H. I" the $onor s,se6,ently a$o#t a minor chil$& H044a

Grounds for reocation and reduction of donation&' $eocation affects the whole donation and is allowed during the lifetime

of the donor' /he grounds are8a' 6irth# appearance# or adoption of a child !IH;"5

b' <on7fulfillment of a resolutory condition imposed by the donor!IH"5 and

c' 4ngratitude of the donee' !IHC"*' $eduction generally affects a portion only of the donation !unless the

donee has no free portion left" and is allowed during the lifetime of thedonor or after his death' /he grounds are8

a' Bailure of the donor to resere sufficient means for support ofhimself or dependent relaties5 !IC;"

b' Bailure of the donor to resere sufficient property to pay off hisexisting debts !ICK"5

c' 4nofficiousness# that is# the donation exceeds that which thedonor can gie by will5 !IC*# II&" and

d' 6irth# appearance# or adoption of a child' !IH;"

•

A donation that has been duly perfected in accordance with law shouldstand until after its reocation should hae been as9ed and granted inthe proper proceeding'

6irth# appearance# or adoption of a child

• /his article applies to all donations inter vivos/ 4t does not apply8

a' to donations mortis causa for they are reocable at will by thedonor !testator"5

b' to onerous donations for they are really contracts5 andc' to donations propter nuptias for they are reocable only for the

causes proided in the Bamily )ode 2 see Art H of the Bam)odeC'

• 4t is applicable when the donor# at the time he made the donation# did

not hae any child or descendant or erroneously thought so5 otherwise#

Article II& in relation to Article IC* shall apply'• .ery donation is subject to reocation or reduction by the happening of

any of the eents mentioned which are in the nature of impliedresolutory conditions'

6irth of a child

• Eere# the donor had no child whether legitimate# legitimated# or

illegitimate at the time of the donation# and thereafter# a child was borneen if posthumous'

• What if the child was already conceied but not yet born# what proision

should apply# Article IH; or II&?o 4t depends'

o 4f the donor was aware of such conception# Article II&' Eence#

he cannot reo9e the donation upon the birth of the child'o 6ut# if he did not 9now of such conception when he made the

donation# the situation is similar to the appearance of anabsent child thought by the donor to be dead' Bor purposes ofthe law# he had no child'

/he rule is that a conceied child is considered born

for all purposes faorable to it' ince to consider thechild as already born would ma9e the donationirreocable and would be unfaorable to it# thesubse%uent birth of the child should reo9e or reducethe donation'

5 Art' H' A donation by reason of marriage may be reo9ed by the donor in the following cases8

!&" 4f the marriage is not celebrated or judicially declared oid ab initio except donations made inthe marriage settlements# which shall be goerned by Article &5!*" When the marriage ta9es place without the consent of the parents or guardian# as re%uired bylaw5!-" When the marriage is annulled# and the donee acted in bad faith5!" (pon legal separation# the donee being the guilty spouse5!C" 4f it is with a resolutory condition and the condition is complied with5!H" When the donee has committed an act of ingratitude as specified by the proisions of the )iil)ode on donations in general' !&-*a"


121


PROPERTY NOTES

A f hild



Appearance of a child

• 4n this case# the donor had only one child whom he belieed to hae

already died at the time of the donation'

• /he note says 0child1# so the subse%uent appearance of a descendant#

li9e a grand9id# would not reo9e the donationo 6ut the donation may be reduced under Article II& as

inofficious if it impairs the legitime of the descendant'

Adoption of a child

• /he subse%uent adoption of a minor child is also a ground for the

reocation or reduction of a donation'

• 4t’s an exception to the rule that a donation inter vivos shall be

irreocable by the donor'

• Again# the law says 0minor child15 hence the adoption of a person of

majority age although it is allowed in certain cases is not a ground under <o' -'

)ase doctrine

• $eocation upon birth of a child and return of property to donor are not

self7operatie or self7executory' /here is a need for judicial action'!>racion @uanillo"

Art& 201& In the cases re"erre$ to in the #rece$ing article+ the $onationshall e re'o-e$ or re$,ce$ inso"ar as it e/cee$s the #ortion that maye "reely $is#ose$ o" y will+ ta-ing into acco,nt the whole estate o"the $onor at the time o" the irth+ a##earance or a$o#tion o" a chil$& Hn

.xtent and basis of reocation or reduction#irth, appearance, or adoption o% a child/

• A person may not gie by way of donation more than he may gie by

will'

• /he amount subject to reocation or reduction is# therefore# the excess

oer the portion that may be freely disposed of by will'• /he basis of reocation or reduction is the alue of the whole estate of

the donor at the time of the birth# appearance# or adoption of a child#and not at the time of the death of the donor as in the case of inofficiousdonations under Article II&'

o /o the alue of the estate shall be added the alue of the

donation at the time it was made because it would hae beenstill part of the estate had not the donation been made'

• /he burden of proof is on the plaintiff7donor who must allege and

establish the re%uirements prescribed by law'n the case o% ino%%icious donations/

• What is sought to be protected by Article IH; is only the prospectie or

presumptie legitime of the child because that is the only portion whichcannot be disposed of'

• 4f the donation does not exceed the free portion at the time of the birth#appearance# or adoption# there will be no reocation or reduction but itmay still be reduced under Article II& if it cannot be coered by the freeportion computed as of the time of the donor’s death'

:et us suppose $on who was then childless# donated a property worth 3C;to .rin# a close 0friend'1 ubse%uently# a child was born to $on whose estateat the time was 3-;' Eis total estate then including the alue of the propertydonated was 3;'ince the legitime of a legitimate child is P of the estate or 3;# andtherefore# the free portion is also 3;# the donation must be reduced by 3&;'6ut if the alue of the estate was 3I;# the donation is not reo9ed orreduced because it does not exceed the free portion of 3H; T!3I; + C;"L*U'

Eoweer# should the estate of $on be less than 3C;# excluding the 3C;donation# at the time of his death !for example# 3;"# it shall be subject toreduction to the extent that it is inofficious !i'e' 3C; 2 3C T!3C;+3;L*" V3C;" under article II&'

)ase doctrines

• Donor has the burden to allege and establish the re%uirements

prescribed by law for which the annulment or reduction of the donationcan be based' !)ru )A"

Art& 20)& C#on the re'ocation or re$,ction o" the $onation y the irth+a##earance or a$o#tion o" a chil$+ the #ro#erty a""ecte$ shall eret,rne$ or its 'al,e i" the $onee has sol$ the same&

I" the #ro#erty is mortgage$+ the $onor may re$eem themortgage+ y #aying the amo,nt g,arantee$+ with a right to reco'er thesame "rom the $onee&

<hen the #ro#erty cannot e ret,rne$+ it shall e estimate$ atwhat it was worth at the time o" the $onation& H04*a

>bligation of donee upon reocation or reduction

• 4n case of reocation or reduction under Article IH;# the obligation of the

donee depends upon the situation of the property donated'


122


PROPERTY NOTES

4f th t ff t d i till i hi i h t t B th ti i f ti i d di th



o 4f the property affected is still in his possession# he must return

the same'o 4f he has sold the property# he must gie its alue'

o 4f the property has been mortgaged by him# and the donor

redeemed the mortgage# he must reimburse the donor'o 4f the property cannot be returned# as when it ahs been lost or

destroyed# he must return its alue at the time of the perfectionof the donation'

• 4t is presumed that the price at which the property is sold is its alue'

o 4f the price is less than its actual alue# the donee is not liable

for the difference absent proof of bad faith'o When the property cannot be returned# its alue shall be

determined not as of the time of the loss but as of the time ofthe donation'

Art& 20.& The action "or re'ocation or re$,ction on the gro,n$s set"orth in article 209 shall #rescrie a"ter "o,r years "rom the irth o" the"irst chil$+ or "rom his legitimation+ recognition or a$o#tion+ or "rom the !,$icial $eclaration o" "iliation+ or "rom the time in"ormation was

recei'e$ regar$ing the e/istence o" the chil$ elie'e$ $ea$&This action cannot e reno,nce$+ an$ is transmitte$+ ,#on the

$eath o" the $onor+ to his legitimate an$ illegitimate chil$ren an$$escen$ants& H040a

3rescription of action for reocation or reduction

• /he donation is reo9ed ipso jure by operation of law# by the happening

of any of the eents mentioned in Article IH;'o Eence# it is not really essential that an action be brought to

reo9e the donation'o 6(/# the reocation is not self7operatie or self7executory'

• 4f the donee should refuse to comply with his obligation under Article

IH*# resort to judicial action is necessary under Article IH-' 6ut since it

is the law itself that declares the reocation# the action is strictly not anaction to reo9e but one to hae the court expressly declare thereocation which has already ta9en place by operation of law'

• /he period within which to bring the action is years' /he time to start

counting depends upon the cause8o 6irth of the first child5

o Brom time of legitimation# recognition or adoption5 or

o Brom judicial declaration of filiation

o Brom the time information was receied regarding the

existence of the child belieed dead' <ot from the actual appearance of the absent child'

• 4f the donor dies within the period# the action is transmitted to his

legitimate and illegitimate children and descendants !not the spouse orascendants of the donor"'

• 4n case more than one cause or ground for reocation or reductionconcur# the period of prescription must run from the earliest cause'

• $eduction of a donation upon the allegation of impairment of legitime is

not controlled by a particular prescriptie period for which reason theperiod shall be goerned under the ordinary rules of prescription' (nder Article &&# the action must be brought within &; years from the timethe right of action accrues# which is the death of the donor'

• /he action cannot be waied' !)ompare to the next article="

Art& 204& The $onation shall e re'o-e$ at the instance o" the $onor+when the $onee "ails to com#ly with any o" the con$itions which the"ormer im#ose$ ,#on the latter&

In this case+ the #ro#erty $onate$ shall e ret,rne$ to the

$onor+ the alienations ma$e y the $onee an$ the mortgages im#ose$thereon y him eing 'oi$+ with the limitations estalishe$+ with regar$to thir$ #ersons+ y the Mortgage Law an$ the Lan$ Registration Laws&

This action shall #rescrie a"ter "o,r years "rom thenoncom#liance with the con$ition+ may e transmitte$ to the heirs o"the $onor+ an$ may e e/ercise$ against the $oneeJs heirs& H042a

Bailure to comply with conditions

• A donation may be reo9ed in case of failure of the donee to comply

with 0any of the conditions1 imposed by the donor upon him'

• /he word 0conditions1 actually refers to obligations# charges# or burdens

imposed by the donor5 it may also refer to a resolutory condition' Eence#what is contemplated are onerous or modal donations'

• >f course# it implies that there is an existing donation'• /he condition must be fulfilled within the period fixed by the donor'

o <o period? /he court shall determine such period as may hae

been contemplated by the donor'

• 4n case the donee fails to comply# the property donated reerts to the

donor# along with the fruits of the property which the donee may haereceied after haing failed to fulfill the condition'


123


PROPERTY NOTES

4f th t h b li t d t d th li ti 4f th i f lfill t ith th l t diti th d ti



• 4f the property has been alienated or mortgaged# the alienation or

mortgage shall be oid (6@.)/ to the rights of innocent third personsunder registration laws who may hae ta9en the property donatedwithout notice of the condition imposed' !3ublic policy baby="

• 4n case of non7fulfillment by the donee of any of the conditions imposed

by the donor# the donation shall be reo9ed at the instance of the donor'

o 6ut# the donor may instead file for an action of specificperformance to compel the donee to comply with theconditions'

• /he action must be brought within years from the non7compliance with

the condition 2 it can only be brought by the donor or his heirs againstthe donee’s heirs !compare to Articles IHK and II;"'

• /he death of the donor or the donee does not bar the action to reo9e

for failure of the donee to comply with the conditions# proided theprescriptie period has not yet expired'

• (nli9e the action for reocation or reduction under Article IH-# the action

may be waied because the condition is purely contractual in nature'

4s court action necessary?

• 4n any case# a court action is necessary if the donee refuses to returnthe property or to comply with the conditions'

• /he deed of donation# howeer# may proide that iolation of any of its

conditions shall cause the automatic rescission of the contract' 4n suchcase# upon the iolation# the donation is automatically reo9ed# withoutneed of a judicial declaration'

o .xcept where the donee denies the donor’s right to rescind# in

which case# judicial interention is necessary to determinewhether or not the rescission is proper'

• 4n the absence of an agreement in the donation proiding of an

automatic rescission# a judicial declaration reo9ing said donation will benecessary'

)ase doctrines• When land is donated on seeral express conditions# acceptance by the

donee will be understood to include all of the conditions not umista9ablyrejected' !6arreto Manila"

• When the donee has entered into possession of the property# effect will

be gien to the donation according to the terms of the offer andacceptance# although the formal deed has not been executed' !6arreto"

• 4f there is no fulfillment with the resolutory condition# the donation may

now be reo9ed and all rights which the donee may hae ac%uiredunder it shall be deemed lost and extinguished' !)entral 3hil (niersity )A"

• Article IH does not apply to onerous donations because onerous

donations are goerned by the rules of )ontracts' Eence# the

prescription period is &; years# not years' !De :una Abrigo"o While courts are gien the power to fix the duration when the

condition is to be fulfilled when none is gien# if the facts showthat a reasonable period has already been allowed the doneeto aail of the opportunity to comply with the condition# then thecourts will no longer gie the donee a period' !)entral 3hil (ni"

o /he legal possibility of bringing the action begins with the

expiration of a reasonable opportunity of the donee to fulfillwhat has been charged upon it by the donor' !ec of .ducation Eeirs of Dulay"

• <othing in law prohibits parties from entering into an agreement that

iolation of the terms of the contract would cause cancellation thereofeen without court interention'

o 4n cases li9e these# judicial interention is necessary not forpurposes of obtaining a judicial declaration rescinding acontract already deemed rescinded but in order to determinewhether or not the rescission was proper' !De :una"

• When the deed of donation expressly proides for automatic rescission

and reersion of the property donated# the rules on contract and thegeneral rules on prescription should apply# not IH' !$oman )atholic Archbishop of Manila )A"

o A donor cannot reo9e the donation on the grounds for non7

compliance of an impossible condition' !Archbishop of Manila )A"

• A declaration of petitoner’s absolute ownership appears legally possible

only when the deed of donation is contextually declared peremptorily

reo9ed' !Dolar 6arangay :ublub"• /he act of selling property to a -rd party cannot be considered as a alid

act of reocation of the deed of donation for the reason that a formalcase to reo9e the donation must be filed which spea9s of an action thathas a prescriptie period of years from non7compliance with thecondition' 4n this case# there was no proision of automatic rescission#thus placing the case within the ambit of Article IH' !Austria7Magat )A"


124


PROPERTY NOTES

• When the donation is onerous and does not fix a period to comply with o /he exception is when the crime has been committed against



• When the donation is onerous and does not fix a period to comply with

the condition# the courts should fix a period to uphold the greatestreciprocity of rights' 4f it is gratuitous# then they should not# to uphold theleast reciprocity of rights and interests'

• 4t’s important to determine whether or not the donation is onerous or not

so that we 9now what law to apply'

Art& 20*& The $onation may also e re'o-e$ at the instance o" the$onor+ y reason o" ingratit,$e in the "ollowing cases%

H1 I" the $onee sho,l$ commit some o""ense against the#erson+ the honor or the #ro#erty o" the $onor+ or o" his wi"e orchil$ren ,n$er his #arental a,thority(

H) I" the $onee im#,tes to the $onor any criminal o""ense+ orany act in'ol'ing moral t,r#it,$e+ e'en tho,gh he sho,l$ #ro'e it+,nless the crime or the act has een committe$ against the $oneehimsel"+ his wi"e or chil$ren ,n$er his a,thority(

H. I" he ,n$,ly re",ses him s,##ort when the $onee is legallyor morally o,n$ to gi'e s,##ort to the $onor& H045a

$eocation by reason of ingratitude of the donee• Article IHC does not apply to donations mortis causa and onerous

donations'

• A donation propter nuptiasmay be reo9ed by the donor when the

donee has committed an act of ingratitude as specified in Article IHC'

• /he enumeration is exclusie and cannot be enlarged'

• /he act of ingratitude must hae been committed by the donee himself

because the duty of gratitude is personal' An act imputable to thehusband or wife or the hot mistress of the donee is not a ground forreocation'

>ffense against the donor# etc

• )riminal coniction is not needed' 4t is sufficient that the offense be

proed by mere preponderance of eidence in the action for reocation'• 4f the offense is committed against a child who is no longer under

parental authority# the donation cannot be reo9ed'

4mputation to donor of any criminal offense# etc

• 4t is immaterial that the donee can proe his accusation or substantiate

his testimony against the donor'

o /he exception is when the crime has been committed against

the donee himself# his wife or children under his parentalauthority'

o /he act inoling moral turpitude may not amount to a crime'

$efusal to support the donor

• /here are two re%uisites8&' /he refusal to support the donor must be undue# that is#

without just reason5 and*' /he donee must be legally or morally bound to support the

donor'

• <ote that ingratitude extends beyond failure to do a legal duty to support

and includes a moral duty to help' !donee is a friend who is pennilessand as9s for help# and the donor shuns her away li9e a scorned loer'"

)ase doctrine

• All crimes which offend the donor show ingratitude and are causes for

reocation' Any crime under the $eised 3enal )ode is one inolingmoral turpitude' !pouses $omulo )A"

Art& 200& Altho,gh the $onation is re'o-e$ on acco,nt o" ingratit,$e+ne'ertheless+ the alienations an$ mortgages e""ecte$ e"ore thenotation o" the com#laint "or re'ocation in the Registry o" Pro#ertyshall s,sist&

Later ones shall e 'oi$& H047

Art& 202& In the case re"erre$ to in the "irst #aragra#h o" the #rece$ingarticle+ the $onor shall ha'e a right to $eman$ "rom the $onee the 'al,eo" #ro#erty alienate$ which he cannot reco'er "rom thir$ #ersons+ orthe s,m "or which the same has een mortgage$&

The 'al,e o" sai$ #ro#erty shall e "i/e$ as o" the time o" the$onation& H0*9

.ffect of reocation on prior alienations and mortgages% by non8compliance

• 4n case of reocation of a donation by non7compliance by the donee

with any of the conditions imposed# alienations and mortgages made bythe donee are oid# subject only to the rights of innocent third persons'/he donor can recoer from the donee8


125


PROPERTY NOTES

o >nly the alue of the property donated at the time of the perfection o 4f the cause is8



o >nly the alue of the property donated at the time of the perfection

of the donation# >$o /he sum for which it was mortgaged'

$ecoery cannot be had against the third person unless he acted in badfaith as when had actual 9nowledge of the cause for reocation or the filingof the action'

% by reason o% ingratitude

• 4f the reocation is by reason of ingratitude# the alienations and

mortgages made by the donee before the complaint for reocation isannotated in the $egistry of 3roperty shall subsist or are alid' :ateralienations and mortgages shall be oid'

• /he donor can recoer the property from the transferee or

mortgagee'

/he donation of land by $on to .rin was made on @uly &;' .rin sold the landto /ara on @uly *;' /he act of ingratitude was done on @uly -;' /he complaintfor reocation was annotated on August &;' /hus# the sale to /ara is alid#and the remedy of $on is to recoer from .ric the alue of the land at the

time of the donation'

4f the sale was made after August &;# the sale is oid and $on can recoerthe land from /ara'

4f the act of ingratitude was committed on @uly *;# the sale on @uly -; andthe complaint which was filed on @uly *C and was annotated on @uly -&# butat the time of the sale /ara was aware of the act of ingratitude committed by.rin# or the pending action by $on# the sale should not be considered alidbecause /ara acted in bad faith# and so $on can recoer the land f rom her'

Art& 205& <hen the $onation is re'o-e$ "or any o" the ca,ses state$ inArticle 209+ or y reason o" ingratit,$e+ or when it is re$,ce$ eca,se itis ino""icio,s+ the $onee shall not ret,rn the "r,its e/ce#t "rom the "iling

o" the com#laint&I" the re'ocation is ase$ ,#on noncom#liance with any o" the

con$itions im#ose$ in the $onation+ the $onee shall ret,rn not only the#ro#erty ,t also the "r,its thereo" which he may ha'e recei'e$ a"terha'ing "aile$ to ",l"ill the con$ition& H0*1

$eturn by donee of the f ruits of property donated

• /he rules depend upon the cause of reocation or reduction

o 4f the cause is8

the birth# appearance or adoption of a child# or

ingratitude# or

inofficiousness of the donation !because the donor did not

resere sufficient means for support"# or he donated more than he could gie by will# then

only the fruits accruing from the f iling of thecomplaint need be returned'

4t can be implied that the donation remains alid

up to the time of the filing of the complaint'

• 4f the cause is the non7fulfillment of any of the conditions imposed in the

donation# the fruits must be returned from the time of the breach of thecondition' /he donation shall also return the property donated'

• 4n case of inofficious donation which exceeds the free disposal by will#

the donation ta9es effect during the lifetime of the donor# the doneeappropriates the fruits# and the reduction may be as9ed only after thedonor’s death'

Art& 207& The action grante$ to the $onor y reason o" ingratit,$e

cannot e reno,nce$ in a$'ance& This action #rescries within oneyear+ to e co,nte$ "rom the time the $onor ha$ -nowle$ge o" the "actan$ it was #ossile "or him to ring the action& H0*)

$enunciation and prescriptie period of action by reason of ingratitude

• /he action granted to the donor for reocation by reason of ingratitude#

li9e the action based on the birth# appearance# or adoption of a childcannot be renounced in adance'

• What the law prohibits is waier# prior to the commission of the act of

ingratitude'

• A past ingratitude can be the subject of a alid renunciation because the

renunciation can be considered as an act of magnanimity on the part ofthe donor'

• /he action prescribesJ&' Within one year from the time the donor had 9nowledge of the

act of ingratitude A<D*' 4t was possible for him to bring the action'

• /o bar the action# the donee must show proof that the one7year period

has expired and it was possible for the donor to institute the said actionwithin the same period'


126


PROPERTY NOTES

Art 229 This action shall not e transmitte$ to the heirs o" the $onor i" 3or the re$,ction o" $onations the #ro'isions o" this :ha#ter



Art& 229& This action shall not e transmitte$ to the heirs o" the $onor+ i" the latter $i$ not instit,te the same+ altho,gh he co,l$ ha'e $one so+an$ e'en i" he sho,l$ $ie e"ore the e/#iration o" one year&

Neither can this action e ro,ght against the heir o" the$onee+ ,nless ,#on the latterJs $eath the com#laint has een "ile$&H0*.

/ransmission of action for reocation

• General rule8 /he action to reo9e a donation by reason of ingratitude is

purely personal to the donor and cannot# as a rule# be transmitted to theheirs'

• /his is unli9e the action for reocation based on the birth# appearance or

adoption of a child and the action based on non7compliance with thecondition of a donation'

• Eoweer# the particular circumstances of the case should be ta9en into

account to determine whether it was possible to bring the action' Eence#the following exceptions wherein the heirs of the donors can as9 for thereocation8

&' 4f the donee 9illed the donor# or

*' 4f the donor dies without haing 9nown of the act of ingratitude#or -' 4f a criminal case against the donee was instituted by the

donor# but the donor dies before he could bring the ciil actionfor reocation5 or

' 4f the action for reocation has already been filed by the donorbefore his death'

Action against heirs of donee

• /he heirs of the donee are not held responsible for the acts of their

predecessor7donee' /he act of ingratitude' !>he sins o% the %ather arenot the sins o% the sonB although, there are some instances where werepeat the mista'es o% our parents/ @eneral rule9 ?earn/)

• 6ut if the donor has already filed the complaint before the donee’s

death# the suit may be continued against his heirs'

Art& 221& 8onations which in accor$ance with the #ro'isions o" Article2*)+ are ino""icio,s+ earing in min$ the estimate$ net 'al,e o" the$onorJs #ro#erty at the time o" his $eath+ shall e re$,ce$ with regar$to the e/cess( ,t this re$,ction shall not #re'ent the $onations "romta-ing e""ect $,ring the li"e o" the $onor+ nor shall it ar the $onee "roma##ro#riating the "r,its&

3or the re$,ction o" $onations the #ro'isions o" this :ha#teran$ o" Articles 711 an$ 71) o" this :o$e shall go'ern& H0*4

$eduction of inofficious donations

• Donations which are inofficious because they are more than what the

donor can gie by will shall be reduced with regard to the excess upon

the death of the donor# after determining the net alue of the estate'• /hus# it follows that the donation is effectie during the lifetime of the

donor and so# the donee# as owner of the property donated alsobecomes owner of the fruits# although the donation should appearinofficious'

• Bor donations propter nuptias# they may be reduced for being

inofficious' 6eing liberalities# they remain subject to reduction forinofficiousness upon the donor’s death# if they should infringe thelegitime of a forced heir'

• /he action to reduce the inofficious donation must be brought within C

years from the time of the donor’s death'

• Bor reduction of donations# the following articles# %uoted below shall

goern8

Art' K&&' After the legitime has been determined in accordance with the threepreceding articles# the reduction shall be made as follows8!&" Donations shall be respected as long as the legitime can be coered#reducing or annulling# if necessary# the deises or legacies made in the will5!*" /he reduction of the deises or legacies shall be pro rata# without anydistinction whateer' 4f the testator has directed that a certain deise orlegacy be paid in preference to others# it shall not suffer any reduction untilthe latter hae been applied in full to the payment of the legitime'!-" 4f the deise or legacy consists of a usufruct or life annuity# whose aluemay be considered greater than that of the disposable portion# thecompulsory heirs may choose between complying with the testamentaryproision and deliering to the deisee or legatee the part of the inheritance

of which the testator could freely dispose' !*;a" Art' K&*' 4f the deise subject to reduction should consist of real property#which cannot be coneniently diided# it shall go to the deisee if thereduction does not absorb one7half of its alue5 and in a contrary case# to thecompulsory heirs5 but the former and the latter shall reimburse each other incash for what respectiely belongs to them'


127


PROPERTY NOTES

/he deisee who is entitled to a legitime may retain the entire property $eduction where there are two or more donations



/he deisee who is entitled to a legitime may retain the entire property#proided its alue does not exceed that of the disposable portion and of theshare pertaining to him as legitime' !*&"

Art& 22)& Only those who at the time o" the $onorJs $eath ha'e a right tothe legitime an$ their heirs an$ s,ccessors in interest may as- "or the

re$,ction or ino""icio,s $onations&Those re"erre$ to in the #rece$ing #aragra#h cannot reno,nce

their right $,ring the li"etime o" the $onor+ either y e/#ress$eclaration+ or y consenting to the $onation&

The $onees+ $e'isees an$ legatees+ who are not entitle$ to thelegitime an$ the cre$itors o" the $ecease$ can neither as- "or there$,ction nor a'ail themsel'es thereo"& H0**a

3ersons entitled to as9 for reductionJ who are they?

• Bor the reduction of inofficious donations#

&' those who at the time of the donor’s death hae a right to thelegitime# and

*' their heirs# and

-' succesors in interest'• /he donor is not included# patay na siya eh/ /he inofficiousness can

only be determined after his death'

Who may not as9 for reduction?&' /he donees# or *' /he deisees# or-' /he legatees# who are not entitled to the legitime'' )reditors of the deceased' !/he remedy of creditors is to file a claim

against the estate of the deceased# but not against the owners of thedonated property'"

$enunciation of right to as9 for reductionJ can it be done?

• /he right to as9 for the renunciation of inofficious donations cannot be

renounced during the lifetime of the donor# ether by express declarationor by consenting to the donation'

22.& I"+ there eing two or more $onations+ the $is#osale #ortion isnot s,""icient to co'er all o" them+ those o" the more recent $ate shalle s,##resse$ or re$,ce$ with regar$ to the e/cess& H0*0

$eduction where there are two or more donations

• /he subse%uent donations shall first be reduced and only if they are not

sufficient to coer the disposable portion should the earlier ones bereduced also with regard to the excess'

• 4f the two donations were perfected at the same time# the reduction

should be proportionate unless otherwise proided by the donor'

$ules on reocationJ )EA$/.D=

REVO:ATION+ase$ onK

6irth#appearance# or adoption of a

child

<on7compliancewith condition or

conditions

4ngratitude

/ime of action Within yearsfrom birth of firstchild# or Brom hislegitimation# or Adoption# or

Brom the judicialdeclaration offiliation# or Brom receipt orinfo regardingthe existence ofthe childbelieed dead

Within yearsfrom non7compliance withthe condition

6ut if it’s an

onerousdonation# within&; years fromnon7compliancewith thecondition

Within & yearfrom the timethe donor had9nowledge ofthe fact of theingratitude

/ransmissibility of action

/ransmitted tochildren anddescendants ofthe donor uponhis death

May betransmitted tothe donor’s heirsand may beexercisedagainst the

donee’s heirs

Generally# theaction is nottransmitted tothe heirs of thedonor nor canthe action be

filed against theheirs of thedonee

.ffect ofreocation

3roperty affectedshall bereturned# or itsalue if thedonee has sold

3ropertydonated shall bereturned to thedonor and thealienations and

3ropertydonated shall bereturned butalienations andmortgage


128


PROPERTY NOTES

the same or mortgages are effected before /ransmissibility <ot /ransmitted to ame as in /ransmitted



the same# or /he donor mayredeem themortgage on theproperty# with aright to recoer

the property

mortgages areoid subject tothe rights ofinnocent -rd persons

effected beforethe notation ofthe complaint for reocation in the$egistry of3roperty shall

subsist:iability for fruits Donee shallreturn the fruitsaccruing fromthe filing of thecomplaint

Donee shallreturn the fruitswhich he mayhae receieda%ter haingfailed to fulfillthe condition

ame as in firstcolumn

$ules on reductionJ )EA$/.D=

RE8C:TION+ase$ onK

Bailure of thedonor to

reseresufficientmeans for support

4nofficiousnessfor being in

excess of whatthe donor cangie by will

6irth#appearance

# or adoption of a child

Braudagainst

creditors

/ime of action Any time bythe donor orby therelatiesentitled tosupportduring thelifetime ofthe donor

Within &;years !antos Alana case#based on&&"

Within C yearsafter the deathof the donor !if propternuptias#according toboo9"

ame as infirst column

/he actionforrescissionmust bebroughtwithin years fromtheperfectionof thedonation# or at thelatest# fromthe time thecreditor had9nowledgeof thedonation

/ransmissibilityof action

<ottransmissibleas the dutyto giesupport andthe right to

receie arepersonal innature

/ransmitted tothe donor’sheirs as thedonation shallbe reduced asregards the

excess at timeof the donor’sdeath


/ransmittedto thecreditor’sheirs orsuccessors7in7interest

.ffect ofreocation

$educed tothe extentnecessary toproidesupport

/a9es effectduring thelifetime of thedonor subjectto reductiononly upon hisdeath withregard to theexcess


3ropertyaffectedshall bereturned bythe doneefor thebenefit ofthe creditorsubject tothe rights of innocent

thirdpersons

:iability forfruits

Donee isentitled tothe fruits asowner of thepropertydonated

Doneeappropriatesthe fruits asowner of theproperty

Donee# asowner#appropriates the fruitsof theproperty notaffected bythereduction#but withregard to

the excess#he shall beliable onlyfor the fruitsfrom thefiling of thecomplaint

Bruits of thepropertyaffectedshall alsobereturned' 4ncase thedoneeacted inbad faithand it

should beimpossiblefor him toreturn# thenindemnifythe donor’screditor fordamages'


129


PROPERTY NOTES



:appy the man who %inds wisdom, the man who gains understanding;88(roverbs 4.4

>hus you may wal' in the way o% good men, and 'eep to the paths o% the just/ *or the upright will dwell in the land, the honest will remain in it #ut the

wic'ed will be cut o%% %rom the land, the %aithless will be rooted out o% it/88(roverbs 00E800

mickey ingles (ateneo) - property reviewer

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