Atty

PROPERTY NOTES

Donation:

See Republic Act No. 7170 (Amended by 7885)

See PD 957

Reconstitution of Land Titles:

See Republic Act 6732

Urban Lands:

See Republic Act 7279 (Sec 3-f-u) (Sec 7)

Foreign Investors Private lands:

See Republic Act 7652

Right of Way, etc:

See Republic Act 8974

NOTES:

Article 415

Numbers 1 and 2 may be referred to as immovable property by their very nature;

Number 3 is immovable property by incorporation;

Numbers 4 to 9 may be called as immovable property by destination;

Number 10 may be termed immovable property by analogy.

Property of public dominion are outside the commerce of men; they are not subject to attachment; they cannot be appropriated and alienated;

Public land is so much of the national domain under the legislative power of the Congress as has been subjected to private right or devoted to public use. It is held equivalent to public domain and does not, by any means, include all lands of Government ownership, but only so much of said lands thrown open to private appropriation and settlement by homestead and other like general terms

Patrimonial property of the state is one owned by the state as if it were owned by an individual so that the state has, over such property, the same rights and powers subject to certain rules, as that of an individual over his own property.

Patrimonial property of the State is within the commerce of men. It may be acquired by prescription. Only property of public domain may not be appropriated or alienated and/or acquired by prescription. The patrimonial property of the State may be termed as property privately owned by the State.

Property of public dominion is converted into patrimonial property of the State by legislative enactment or declaration; it is up to the courts to determine whether there was proper conversion.

Importance of classifying real/personal properties:

In criminal law, see Articles 293, 308, 312 of the Revised Penal Code

Venue of legal actions

Prescription ( real property involves longer period

Contracts ( certain requirements on real property or real rights may not be present in a situation affecting personal property.

Accession a manner of acquiring the property of a thing which becomes united with that which a person already possesses. The doctrine of property arising from accession is grounded on the rights of the occupancy. It is said to be of six kinds in the Roman law:

1. That which assigns to the owner of a thing its products, as the fruits of trees and the spring of animals.

2. That which makes a man the owner of a thing which is made of anothers property, upon payment of the value of the material taken. As where wine, bread, or oil is made up of anothers grapes or olives.

3. That which gives the owner of the land new land formed by gradual deposit. (accretion, alluvion)

4. That which gives the owner of a thing the property in what is added to it by way of adorning or completing it.

5. That which gives islands formed in a stream to the owner of the adjacent lands on either side.

6. That which gives a person the property in things added to his own so that they cannot be separated without damage.

Accession the right to all which ones own property produces, whether that property be movable or immovable , and the right to that which is united to it by accessory, either naturally or artificially.

- Every building is an accession to the ground upon which it stands; and the owner of the ground, if liable at all, is only liable to the owner of the materials for the value of them. And the same rule holds where trees, vines, vegetables, or fruits are planted or sown in the ground of another.

- If the materials of one person are united by labor to the materials of another, so as to form a single article, the property in the joint product is, in the absence of any agreement, in the owner of the principal part of the materials by accession

- The tree belongs to the owner of the land on which the root is, and its fruit is to the owner of the tree (although limbs overhang a neighbors land)

- Where, by agreement, an article is manufactured for another, the property in the article, while making and when finished, vests in him who furnished the whole or the principal part of the materials; and the maker, if he did not furnish the same, has simply a lien upon the article for his pay.

- The increase of an animal, as a general thing, belongs to the owner of the dam or mother; but if it be lent to another, the person who thus becomes the temporary proprietor will be entitled to its increase [see Putnam v. Wyley, 5 Am. Dec. 345; see also Allen v. Delano, 92 Am. Dec. 573; 17 L.R.A. 81]

Read: Baker v. Neisch (45 N.W. 685); Wooden Ware Co. v. U.S. (27 L. Ed. 230); Curtis v. Groat (5 Am. Dec. 204); Snyder v. Vaux (21 Am. Dec. 466); Goddard v. Windell, (52 N.W. 1124)

Real Rights rights of a person which are enforceable against all or the whole world;

Personal Rights rights of a person enforceable against definite passive subjects for the fulfillment of prestations which may be obligations to give, to do or not to do.

The object of real right is a specific, corporal thing while the object of personal right consists in the act or prestation of a particular obligor or debtor. Real right is enforceable against all while personal right is enforceable against definite person or persons. Real right is more or less permanent while personal right is merely temporary. The destruction of the object in real right extinguishes the right while the personal right may survive the things destruction because the object of personal right is prestation.

The traditional rights included in ownership are the right to use; the right to enjoy; the right to dispose; the right to abuse; the right to recover; the right to possess.

Limitations on ownershipfixed by the Constitution, by statute, or by voluntary acts like limitations fixed in contracts and wills.

Rights incident to ownership: Arts. 428, 429, 430, 431, 435, 436, 437, 438, 440, 441, 476-481.

A judgment for ownership does not necessarily include possession (Jabor v. Alo, L-5094, Aug 7 1952)

Actions for recovery of property:

Action to eject (Rule 70) (Art. 539) , Accion publiciana, Accion reivindicatoria, Replevin, Etc.

While accession discreta refers to a persons right (as owner) over the fruits produced by his property, this rule is not absolute. There are certain cases where the fruits of the property belong not to the owner. Thus, a possessor of a property in good faith may claim the fruits of such property (see Art. 544). A usufructuary is entitled to the fruits of the property held in usufruct (see Art. 566). So also, in antichresis, the creditor may in the proper case, appropriate the fruits of the security.

Accession Continua is a form of accession where the property of one person is incorporated in that of another. The basic principles or characteristics that underlie accession continua are the following:

1. Accessory follows the principal;

2. The nature of the incorporation is in such a way that separation would injure or destroy either or both of the properties incorporated;

3. No punitive liability shall be suffered by the person who acts in good faith;

4. The person who acts in bad faith is punished by, among others, requiring him to pay damages.

Read: Miranda v. Fadullon (51 O.G. 5778); Tufexis v. Chunaco (CA, 36 O.G. 2455); Atkins Kroll & Co. v. Domingo (46 Phil 362); San Diego v. Montesa (L-177985, Sept 29 1962); Mendoza v. De Guzman (52 Phil 164); Ignacio v. Hilario (43 O.G. 140); Bernardo v. Bataclan (66 Phil 598); Filipinas College Inc v. Timbang (L-12812, Sept 20 1959); Grana v. CA (L-12486, Aug 31 1960); Gongon v. Tiango (CA, 36 O.G. 822); Montinola v. Bantug (71 Phil 449); Alburo v. Villanueva (7 Phil 277); De Guzman v. Rivera (4 Phil 60); Tayag v. Yuseco (L-14043, Apr 16 1959); Quemel v. Olais (L-11084, Apr 29 1961)

Article 448 is not applicable in the following instances:

in cases of co-ownership

in cases of usufruct

in cases of lease already/previously agreed upon

in case a person who owns a house and lot sells only the lot but not the house

in relations between private persons and a sovereign belligerent

constructions made exclusively for prosecuting a war

when key parties concerned agree on terms and conditions not contemplated by Art. 448, the requirements of the Article not being mandatory.

If by the labor of one man, the property has been converted into a thing of different species, so that its identity is destroyed, the original owner can only recover the value of the property in its unconverted state, and the article itself will belong to the person who wrought the conversion, if he wrought it believing the material to be his own. But if there be a mere change of form or value, which does not destroy the identity of the materials, the original owner may still reclaim them or recover their value as thus improved. So, if the change had been wrought by a willful trespasses, or by one who knew that the materials were not his own; in such case, however radical the change may have been, the owner may reclaim them, or recover their value in their new shape.

Every building is an accessory to the soil, and is therefore real estate; it belongs to the owner of the soil; but a building placed on anothers land by his permission is the personal estate of the builder.

Adjunction the attachment or union permanently of a thing belonging to one person to that belonging to another. This union may be caused by inclusion, as if one mans diamond be set in anothers right; by soldering, as if ones guard be soldered on anothers sword; by sewing, as by employing the silk of one to make the coat of another; by construction, as by building on anothers land; by writing, as when one writes on anothers parchment; or by painting, as when one paints a picture on anothers canvas.

In these cases, as a general rule, the accessory follows the principal; hence, those things which are attached to the things of another become the property of the latter. The only exception which the Civilists made was in the case of a picture, which although an accession, drew to itself the canvas, on account of the importance which was attached to it.

Avulsion the removal of a considerable quantity of soil from the land of one man and its deposit upon or annexation to the land of another, suddenly and by the perceptible action of water. [In such case, the property belongs to the first owner.]

The owner acquires ownership over an accretion received by his land from the effects of the waters, by virtue of the fact of addition and he need not file an action to possess such addition.

Lands added to the shores by accretions and alluvial deposits are owner by the state. The said lands, until a formal declaration on the part of the government to the effect that they are no longer needed for coast service, for public use or for special industries, continue to be part of public domain, not available for private appropriation or ownership.

Accretion takes place even if the adjoining land is not titled under the Torrens System.

Land acquired by accretion will not become automatically registered under the Torrens System if such accretion took place on a registered land. Ownership of a piece of land is one thing, and registration under the Torrens System of that ownership is quite another.

Read: Guison v. City of Manila (40 O.G. 3835); Pascual v. Angeles (13 Phil 441); Zapata v. Director of Lands (L-17646, Oct 30 1962); Roxas v, Tuazon (9 Phil 408); Ignacio v. Director of Lands (L-11958, May 30 1960); Payatas Estate v. Tuazon (53 Phil 55); Jinzon v. Rama (CA, 2 O.G. 307), Grande v. CA (L-17652, June 30 1962); Cortes v. City of Manila (10 Phil 567); Government v. Colegio de San Jose (53 Phil 423); Hodges v. Garcia (L-12730, Aug 22 1960); Caas v, Tuazon, et.al. (5 Phil 688); Villanueva v. Claustro (23 Phil 54); Bautista v. Director of Lands (GR No. 8433-R, Nov 29, 1955)

Requisites of Co-ownership:

Plurality of subjects

Unity of object (absence of division)

Proportionate shares of such subjects

How created:

By Contracts

By Law

By Will

By Chance (as confusion or commixtion)

Kinds:

Ordinary (where right of partition exists)

Compulsory (no right of partition exists)

Legal (created by law)

Contractual (created by contract)

Universal (over universal things as among co-heirs in inheritance)

Singular or particular (over a particular or specific things)

Incidental (if it exists independent of the will of the parties)

Characteristics:

The co-owners share in the property, although definite in amount or size, is not physically and actually identified, it being merely an ideal;

A co-owners share is absolutely owned by him and he may dispose of it as he pleases

In regard to the use, enjoyment and preservation of the property, the co-owners observe mutual respect

Distinguished from Ordinary Partnership:

Co-ownership is created not only by agreement of the parties but also by law and other means while partnership is created only by agreement of the parties;

The purpose of partnership is primarily for profit while the purpose of co-ownership is principally common enjoyment of the property owned in common

A co-owner may ordinarily sell to a third person his interest in the co-ownership without the consent of the other co-owners while a partner may not tell sell his interest in the partnership without the consent of his co-partners.

Co-ownership is not a juridical person while a partnership has its own juridical personality;

Death of a co-owner does not dissolve the co-ownership while the death of a partner dissolves the partnership.

Distinguished from Joint Tenancy:

Disability in joint tenancy inures to the benefit of the others; which is not true in co-ownership

In case of death of a joint tenant, the survivor is subrogated to the rights of the decedent, which is not true in co-ownership where the death of a co-owner transfers his share to the heirs.

A joint tenant may transfer or dispose of his share only with the consent of the others; but no such consent is required in co-ownership.

Cases when co-owned property cannot be partitioned:

in conjugal partnership (so long as it validly exists)

in the case of a party wall

READ:

Tagarco v. Garcia (61 Phil 5)

Tarnate v. Tarnate (46 OG 4397)

Lavadia v. Cosme (73 Phil 196)

Pardell v. Bartolome (23 Phil 450)

Hibbard v. Estate of Mc Elroy (25 Phil 164)

Alcala v. Pabalan (19 Phil 520)

Ramirez v. Bautista (14 Phil 528)

Lopez v. Ilustre (5 Phil 567)

Cadag v. Trinanes, CA (40 OG Supp 4, 324)

Santos v. BPI (58 Phil 784)

Laws Governing Wates

Philippine Constitution

Spanish Law of Waters (August 3, 1866)

Irrigation Law (Act 2152, as amended)

Water Paver Act (Act 4062)

Civil Code of the Philippines

Water Code

Water Course:

The flow or movement of the water in rivers, creeks and other streams

A stream of water flowing in a definite channel having a bed and sides or banks and discharging itself into some other stream or body of water

The essential characteristic of a water-course are a channel consisting of a well-defined bed and banks, and a current of water

The bed, which is a definite and commonly a permanent channel, is the characteristic which distinguishes the water of a river from mere surface drainage flowing without definite course or certain limits, and from water percolating through the strata of the earth. The banks of a water-course are the elevations which confine the waters to their natural channel when they rise. The water of a water-course must have a current. The flow of the water must usually be in one direction, and by a regular channel having both a source and a mouth.

The controlling distinction between a water-course and a pond or lake is that in the former case, the water has a natural motion or a current, while in the latter water is, in its natural state, substantially at rest. And this is so independently of the size of the one or of the other.

In the absence of a permanent source of supply, there can be no water-course in its legal sense.

Waters:

Water is a movable, wandering thing, and must of necessity continue to be common by the law of nature; no one has any property in the water itself, except in that particular portion which might have abstracted from the stream and of which he had the possession; flowing water is publici juris, not in the sense that it is bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only, but each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it. [see US v. Inu Co., 156 Fed 123]

By the modern rule, the right of the riparian owner in the water is usufructuray, and consists not so much in the fluid itself as in its uses. The law does not recognize a riparian property right in the corpus of the water; the riparian proprietor does not run the water. He has the right only to enjoy the advantage of a responsible use of the stream as it flows through the land, subject to a like right belonging to all other riparian properties. Water when reduced to possession is property, and it may be bought and sold and have a market value; but it must be in actual possession, subject to control and management.

The most essential element of an appropriation of water is application to a beneficial purpose.

The right of a riparian proprietor or a non-navigable stream to the use of its ordinary flow of water, undiminished by an unreasonable use by an upper proprietor, is not an easement or appurtenance, but is inseperably annexed to the soil and is part and parcel of the land itself.

One who diverts water from a flowing stream for a beneficial purpose may have the use of it so long as he conforms to the law regulating such matters.

Riparian owners may not divert or sell running water for general use, and are limited in their own use of it to ordinary purposes incident to the enjoyment of the riparian land, and in exceptional cases to extraordinary uses upon the land itself, if such use does not unreasonably decrease the quantity of the water or impair its quality.

Dams:

A riparian owner may construct a dam; it is not per se an improper structure as to lower owners; but a dam may not be construed of such a height that it will back the water upon the lands of others.

As against the rights of the upper proprietor, the owner of the servient estate cannot obstruct surface water when it has found its way to and is running in a natural drainage channel or depression.

The owner of land cannot collect the water in an artificial channel or volume and pour it upon the land of another to his injury; he cannot interfere with the flow of surface water in a natural channel; where water has been accustomed to gather and flow along in a well-defined channel where by frequent running it has worn or cut into the soil, it may not be obstructed to the injury of the dominant tenant.

Rivers;

Natural streams of water flowing betwixt banks or walls in a bed of considerable depth and width, being so called whether their currents set always one way or flow and reflow with the tide.

At common law, the bed or soil of all rivers subject to the ebb and flow of the tide, to the extent of such ebb and flow, belongs to the crown (State); the ownership of the crown extends to the high-water mark.

See Ensminger v. People (95 Am Dec 495)

Public rivers are divided into navigable and non-navigable; the distinction being that the former flow and reflow with the tide, while the latter do not.

The State has the right to improve all navigable rivers, and to regulate them by lawful enactment for the public good; any obstruction of them without legislative authority is a nuisance, and any persons having occasion to use the river may abate the same, or if injured thereby, may receive his damages from its author.

Shore:

Land on the side of the sea, a lake or a river. Strictly speaking, when the water does not ebb and flow in a river, there is no shore.

On a navigable river, it is the ground lying between ordinary high and low water mark. Shore and shore line, when used in rules for the division of accretions upon rivers, mean the margin of the river or the waters edge.

Lake:

A body of water surrounded by land, or not forming part of the ocean, and occupying a depression below the ordinary drainage level of the region.

No riparian owner could acquire title to the bed of any lake however small.

Read: Hardin v Jordan (35 L.Ed 428), Stuart v. Greanyea (117 NW 655), State v. Narrows Island Club (5 SE 411), Olson v. Huntamer (61 NW 479)

Island:

When new islands arise in the open sea, they belong to the first occupant; but when they are newly formed so near the shore as to be within the boundary of some state, they belong to that state.

Island which arise in rivers when in the middle of the stream belong in equal parts to the riparian proprietors; when they arise mostly on one side, they belong to the riparian owners up to the middle of the stream.

Read: Cooley v. Golden (23 SW 100), Glassell v Hansen (67 Pac 964)

Navigable Waters:

Those waters which afford a channel for useful commerce.

The test by which the character of a stream as public or private is determined, is its navigability in fact.

The term navigable, at common law, is only applied to the sea, to arms of the sea, and to rivers which flow and reflow with the tide, in other words, to tide-waters, the bed or soil of which is the property of the crown (State); all other waters are, in this sense, unnavigable, and are, prima facie, strictly private property. [see Com v. Charleston, 11 Am Dec 161]

There can be no prescription right to maintain or continue an obstruction to the navigation of a public stream.

Every structure in the water of a navigable river is subordinate to the right of the navigation and must be removed, even if the owner sustains a loss thereby.

All rivers which are found of sufficient capacity to float the products of the mines, the forests, or the tillage of the country through which they flow, to market, or which are capable of use for the floating of vessels, boats, rafts or logs, are subject to the free and unobstructed navigation of the public, independent of usage or of legislation.

Fee Simple it is the largest possible estate which a man can have, being an absolute estate. It is where lands are given to a man and to his heirs absolutely, without and end or limitation put to his estate.

Fee Tail an inheritable estate which can descend to certain classes of heirs only. It is necessary that they should be heirs of the body of the ancestor, and these are proper words of limitation. An estate-tail may be general (limited to the heirs of the body merely) or special (limited to a special class of such heirs, e.g. heirs male or heirs female, or those begotten of a certain wife named.)

POSSESSION

Elements:

The thing or corpus

Intention to possess the property (animus possidendi)

Forms:

Possession based on absolute ownership or valid title

Possession based on just title (good faith)

Possession not in the concept of owner but based on a juridical title (lessee)

Possession without any right (thief)

Characteristics:

Possession is characterized by a relation of power or control, more or less effective, by a person over a thing without resolving the question of ownership.

Acquisition:

By the material occupation of a thing

By the exercise of a right

By the fact that it is subject to the action of our will

By proper acts and legal formalities established for acquiring property

Miscellaneous:

It is the detention or enjoyment of a thing which a man holds or exercises by himself, or by another who keeps or exercises it in his name

It expresses the closest relation that can exist between a corporeal thing and the person who possesses it, implying an actual, physical contact, as b sitting or standing upon a thing.

Actual possession exists where the thing is in the immediate occupancy of the party

Constructive possession is that which exists in contemplation of law, without actual personal occupation.

Possession is the occupation of anything with the intention of exercising the rights of ownership with respect to it. Natural possession implies more physical contact with a thing, apart from all attempted exercise of rights with respect to it. The lower degree of control was known to the later civilists as Detention.

In order to complete a possession, two things are required: that there be an occupancy, apprehension, or taking; that the taking be with an intent to possess; hence, persons who have no legal wills, as children and idiots, cannot possess or acquire possession. But an infant of sufficient understanding ma lawfully acquire the possession of a thing.

An owner in possession is protected against disturbance; the rights of an owner out of possession are obscure and weak; it is so with regard to chattels.

For many purposes, the true owner of goods is the person, and the only person, entitled to immediate possession.

Legal possession does not necessarily coincide either with actual physical control or with the right to possess, and it need not have a rightful origin.

Possession is to be protected because a man by taking possession of an object has brought it within the sphere of his will; he has extended his personality into or over that object.

Rights of ownership are substantially the same as those incident to possession The owner is allowed to exclude all and is accountable to no one; the possessor is allowed to exclude all but one and is accountable to no one but him.

Failure to take possession is sometimes considered a badge of fraud, in the transfer of personal property.

Possession of real property will be presumed to accompany ownership until the contrary is proved; and constructive possession consequent upon legal ownership is sufficient as against mere trespassers.

Long continued possession and use of real property creates a presumption of lawful origin; and this presumption need not rest upon belief that a conveyance was in point of fact executed.

When it is not based on legal right, but secured by violence and maintained with force and arms, possession cannot furnish the basis of a right.

A very high degree of legal protection is accorded to one lawfully in possession and, whether its origin is rightful or not, a stranger cannot be heard in opposition to it. The true owner may be heard, but an intruder never.

The true limits of the bare possessors right to recover damages for interference with his possession are:

If the defendant cannot show who the true owner is, the bare possessor may recover the same measure of damages as if he were the true owner, whether he is liable over to the owner or not.

Where the true owner is shown, the bare possessor cannot recover the value of the goods taken or the diminution in their value, or for injury, unless he is liable over to the owner.

Whether the true owner be shown or not, the possessor may recover damages for the taking or trespass, nominal or substantial, as the taking, is or is not attended with aggravation.

Trespass:

Any unauthorized entry upon the realty of another to the damage thereof

Where the rightful owner of land, entitled to the immediate possession, attempts to recover it, he is not liable in a civil action of trespass for assault upon a trespasser, if he used no more force than was necessary for the expulsion of the intruder.

Usurpation:

The unlawful assumption of the use of property which belongs to another; an interruption or the disturbing of a man in his right and possession.

Common Law Principles:

Possession in fact is such actual exclusive control as the nature of the thing admits;

Possession in law, the right which is protected by possessory remedies, generally follows possession in fact, but does not necessarily cease when possession in fact ceases.

Possession in law continues until determined in some way which the law definitely recognizes, beyond the mere absence or failure of a continuing intent to possess.

Possession in law is a commencement of title; in other words, the possessor can deal with the thing as an owner against all persons not having a better title and this protection extends to person deriving title from him in good faith.

When possession in fact is so contested that no one can be said to have actual effective control, possession in law follows the better title.

In Louisiana:

CIVIL possession exists when a person ceases to reside in a house or on the land which he occupied, or to detain the movable which he possessed, but without intending to abandon the possession. It is the detention of a thing by virtue of a just title and under the conviction of possessing as owner.

NATURAL possession is that by which a man detains a thing corporeal, as, by occupying a house, cultivating ground, or retaining a movable in his possession.

Natural possession is also defined to be the corporeal detention of a thing which we possess as belong to us, without any title to that possession, or with a title which is void.

Possession applies properly only to corporeal things, movables and immovables. The possession of incorporeal rights, such as servitudes, and other rights of that nature, is only a quasi-possession, and is exercised by species of possession of which these rights are susceptible.

Possession may be enjoyed by the proprietor of the thing or by another for him

To acquire possession of a property, two things are requisite: the intention of possessing as owner; and the corporeal possession of the thing.

Possession is lost with or without the consent of the possessor. It is lost with his consent when he transfers the possession to another with the intention to divest himself of it; when he does some act which manifests his intention of abandoning possession.

A possessor of an estate loses the possession against his consent when another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from re-entering; when the possessor of an estate allows it to be usurped and held for a year, without during that time having done any act of possession or interfered with the usurpers possession.

Occupancy:

The taking possession of those things corporeal which are without, with an intention of appropriating them to ones own use.

A mode of acquiring property by which a thing which belongs to nobody becomes the property of the person who took possession of it with the intention of acquiring a right of ownership in it.

To constitute occupancy, there must be a taking of a thing corporeal, belonging to nobody, with the intention of becoming the owner of it.

A right by occupancy attaches in the finder of lost goods unreclaimed by the owner; in the captor of beasts ferae naturae, so long as he retains possession; the owner of lands by accession, and the owner of goods acquired by confusion.

Occupant one who has the actual use or possession of a thing.

ADVERSE POSSESSION:

The enjoyment of land, or such estate as lies in grant under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion or color of right on the part of the possessor.

A prescriptive title rests upon a different principle from that of a title arising under the state of limitations. Prescription operates as evidence of a grant and confers a positive title. The statute of limitations operates not so much to confer positive title on the occupant, as to bar the remedy. Hence, it is said to be properly called a negative prescription.

The statute of limitations is the source of title by adverse possession; it is held to be not grounded upon the presumption of a grant; but is the fiat of the legislative cutting off the right to maintain suit, and is for the interest of the stability of titles. It protects the disseisor in his possession not out of regard to the merits of his title, but because the real owner has acquiesced in his possession. It must be complied with in every substantial particular.

A mere possession, without color or claim of an adverse title, will not enable one in an action of right to avail himself of the state of limitations.

The terms color of title and claim of title are not synonymous. To constitute the former, there must be a paper title, but the latter may rest wholly in parol. The claim of right may be made inferentially by unequivocal acts of ownership, as by visible, hostile, exclusive and continuous appropriation of the land. It need not be a valid claim, so long as it is made and relied on by the person in possession; and where all the other elements of an adverse possession have concurrently and persistently existed for the statutory time, color of title has been usually held not essential.

The intention must be manifest; it guides the entry and fixes its character. Possession taken under claim of title shows such intention. But if by mistake one oversteps his bounds and encroaches upon his neighbors lands, not knowing the true line and intending to claim no more than he really is entitled to possess, his possession is not adverse, and will not give him title no matter how long he actually holds it. (see Shirley v Whitlow, 97 S.W. 444) In such a case, the intent to claim title exists only upon the condition that his belief as to his boundary is true. The intention is not absolute, but provisional, and the possession is not adverse. (see Preble v Railroad Co., 27 Atl. 149)

When a boundary line between adjoining landowners is perpetually in dispute, and neither has actual occupation to any definite line, there is no adverse possession beyond its true line; nor will the enroachment of one in the erection of his building on neighboring property through mistake constitute such a possession as will ripen into title by the lapse of time; nor where a deed, by mistake, covered land not intended to be conveyed.

Where one enters into possession of real property by permission of the owner, without any tenancy whatever being created, except at sufferance, possession being given as a mere matter of favor, he can never acquire title by adverse possession, no matter how long continued against the true owner thereof, unless there is a clear, positive, unequivocal disclaimer and disavowal of the owners title and an assertion by the occupant of a title in hostility thereto, notice thereof being brought home to the landowners.

The adverse possession must be actual, continued, visible, notorious, distinct and hostile. It is founded in trespass and disseisin, an ouster and continued exclusion of the true owner for the period prescribed by the statute.

Where a co-tenant asserts possession under a deed purporting to convey the whole title, he will be deemed to have ousted his co-tenant.

The registration of a deed purporting to vest title to the entire tract of land in the grantee is notice to the co-tenant of an adverse holding.

One claiming by adverse possession cannot avail himself of the previous possession of another person with whose title he is no way connected.

There can be no adverse possession between husband and wife while the marital relation continues to exist.

When trust property is taken possession of by a trustee, it is the possession of the cestiu que trust and cannot be adverse until the trust is disavowed, to the knowledge of the cestui que trust.

The possession of the tenant becomes adverse where, to the knowledge of the landlord, the tenant disclaims the tenancy, and sets up a title adverse to the landlord.

The title by adverse possession for such a period as required by statute to bar an action, is a fee-simple title, and is as effective as any otherwise acquired.

Where there has been severance of the title to the surface and that to the minerals beneath it, adverse possession of the surface will not affect the title to the minerals.

USUFRUCT:

The right of enjoying a thing the property of which is vested in another, and to draw from the same all the profit, utility and advantage which it may produce, provided it be without altering the substance of the thing.

Perfect usufruct is of things which the usufructuary can enjoy without altering their substance, though their substance may be diminished or deteriorated naturally by time or by the use to which they are applied; as, a house, a piece of land, animals, furniture and other movable effects.

Imperfect or quasi-usufruct is of things which would be useless to the usufructuary if he did not consume and expend them or change the substance of them; as, money, grain, liquors. In this case, the alteration may take place.

Duties of the usufructuary:

To make an inventory of the things subject to the usufruct, n the presence f those having an interest in them;

To give security for their restitution when the usufruct shall be at an end;

To take good care of the things subject to the usufruct;

Article 559 has to be considered in relation to Articles 1132 and 1505

Article 1505: (1) and (2) true owner can recover property provided he reimburses the present possessor; (3) true owner cannot recover anymore.

Where sold by one who is not the owner, sale no good; exceptions: estoppel; also, sale valid when (1) and (2) apply, subject to recovery by owner who shall reimburse; also, sale void when 3 applies; no recovery.

Article 559 speaks of public sale. (recover, with reimbursement) Article 1132 speaks of prescription. Re: personal property. Article 1505 speaks of purchase in a merchants store, or in fairs or markets.

POSSESSION

(Philippine Rulings):

Possession should not be disturbed unless by judicial order

Trespasser is not protected by law

Possession of land cannot be dissociated from possession of buildings

A possessor cannot be ousted except through judicial action

Public land applicant already in possession prior to award is entitled to possessory action

Actual possession though not founded upon claim of ownership is entitled to protection of the law

Only actual possessor may bring action of forcible entry

Symbolic tradition is equivalent to physical possession

Possession of a part is constructive possession of the whole

Possession in good faith is entitled to reimbursement of his necessary and useful expenses

Possessor in good faith is entitled to his fruits

Bad faith is not transmissible from one possession to another

A right of retention arises only when the necessary expenses incurred by the possessor in good faith and not refunded to him

A legitimate possessor is entitled to reimbursement for necessary expenses and expenses for preservation

Transferee of a mortgage is not a possessor in good faith

Possessor in good faith is not liable for payment of damages

Rule on possession in good faith is not applicable to that of a mere lessee

Possession of anothers property is presumed to be in good faith; burden of proof is on party alleging bad faith

Possession in good faith of chattel is equivalent to a title

Possessor in good faith of improvements has right to buy land on which improvements were built

Possessor in good faith has right to indemnity for necessary and useful expenses

Improvements on property introduced by possessor in good faith shall not be removed where great expenses would be incurred

Possession in good faith is not a good defense in accion reivindicatoria

Bad faith is not presumed

Bad faith possessor is entitled to reimbursement of expenses incurred in production, gathering and preservation of crops

Person who acquires possession of land through fraud cannot acquire title over improvements thereon

Possessor in bad faith loses improvements and is liable for fruits gathered

Improvements made by possessor only during trial are deemed to have been made in bad faith

Possessor in bad faith is not entitled to reimbursement for useful expenses

Abandonment of property arises only when hope of recovery and intent to return are given up

Possession of co-owner is generally not adverse against his co-owners

Donee signing deed of sale by donor to third person as witness is estopped to claim adverse possession thereof

Prescription may be acquired in whatever way adverse possession may have been commenced

Adverse possession is a sufficient title for registration where government does not intervene

Possession of co-owner by mere tolerance does not give rise to acquisitive prescription

Possession not in the concept of an owner is not adverse possession

Actual possession of entire land is not necessary; constructive possession is enough

If occupant possessed land under same color of title derived from registered owner, his possession may ripen into ownership

Possession of lessee is possession of landlord

Tenants possession cannot be the basis of acquisitive prescription

Possessor of stolen goods must explain such possession

The possessor of stolen property is presumed to be the author of the stealing and this presumption stands in the absence of satisfactory explanation as to his possession

Only a person who has lost his personal property or was illegally deprived thereof may recover the same from any one possession it; in other words, the point to be determined in suits for the recovery of personal property is not whether the possessor has or has not a good and indefeasible title; but whether the one who desires to recover it is the former owner and either has lost it or has been illegally deprived thereof.

Private deed of sale without possession cannot be a basis of acquisition of ownership

Possession may be interrupted either naturally or civilly

Action for ownership includes that of possession

Void donation may be the basis of adverse possession

Stealing presupposes unlawful possession

Sublessee has less right of possession than the lessee

In action to recover possession of land, plaintiff must clearly identify the land claimed

Writ of possession cannot be secured by mere motion

In ejectment cases, physical possession is the only issue; prior possession by plaintiff is essential

Owner is entitled to recover possession from possessor by mere tolerance

Administrator has right to the possession of all properties of the estate as long as it is necessary to pay debts

Good faith notwithstanding, no one may acquire for himself stolen property in any manner other than that provided by law

The ring in question having been acquired at a private sale, the lawful owner is not under any obligation to reimburse the possessor the amount paid by the latter in acquiring it

Notarial deed of sale is equivalent to delivery of legal possession of lots sold

Adverse possession of alluvion to registered land may ripen into ownership

Land involved in cadastral proceedings cannot be acquired by adverse possession

Possession by mere tolerance cannot ripen into ownership

No adverse possession of registered land

Present possessor, who shows possession at some previous time, is presumed to have held possession during the intermediate period

Action to recover possession of registered land is imprescriptible

Squatters on registered land acquire no possessory right

Claim of prior possessor cannot prevail over the right of a registered owner; possession by tolerance is not a license to stay indefinitely

Torrens Title is a conclusive evidence of the right of possession

Possession begun in good faith presumed to continue in that character

Possession in good faith is interrupted by court summons

No good faith in possessing registered land

A usurper cannot be a possessor in good faith

Rights acquired by long possession cannot be defeated by subsequent declaration that land is a timberland

One who purchases land from a person other than the registered owner is not a possessor in good faith

Good faith ceases when possessor becomes aware in the defect in his title

Possessor in good faith is not obliged to pay rentals; he has a right to receive the fruits

Squatters are not possessors or builders in good faith

One who is aware that he is not the owner cannot be a possessor in good faith

Possessor in bad faith must account for the fruits received by him

After demand to vacate, defendants became possessors in bad faith and theyre liable for rentals

Prescription or adverse possession cannot be set up against a registered owner

Usufructuary cannot sell naked title

A possessor is not required to have his feet on every square meter of ground

Reasonable force against invasion of actual possession is sanctioned by the New Civil Code and the RPC

Occupancy of building implies tenancy or possession of land on which it is constructed

Lessee, who introduces useful improvements, cannot claim reimbursement or retention, like a possessor in good faith

Possessor in good faith becomes in bad faith from the time he becomes aware of the flaw in his title

Lessee cannot be a builder in good faith on leased lot

Occupants in good faith have the right to retain the property until they are reimbursed of the necessary expenses made on the land

Possessor in good faith is not required to make reimbursements for fruits received

Lessees are not considered possessors in good faith for purposes of recovery of the value of improvement made on the property

Temporary absence from residence not to be construed as abandonment of possession

One claiming adverse possession must execute decisive and unequivocal acts amounting to an ouster of others

Read: Arcenna v Raymundo (19 Phil 47); Dizon v Suntay (47 SCRA 160); Aznar v Yapdiangco (13 SCRA 485); Cruz v Pahati (98 Phil 788); US v Sotelo (28 Phil 147); Del Rosario v Lucena (8 Phil 535)

Owner has better right as against innocent third property over possession of personal property

FOR FINALS:

EASEMENT:

A right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner.

A privilege which the owner of an adjacent tenement has of another, existing in respect of their several tenements, by which that owner against those tenement the privilege exists is obliged to suffer or not to do something or in regard to use his land for the advantage of him in whose land the privilege exists.

Although the terms are sometimes used as if controvertible, properly speaking, easement refers to the right enjoyed by one and servitude, the burden imposed upon the other.

In interest in land created by grant or agreement, express or implied, which confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another.

The land against which the privilege exists is called the SERVIENT tenement; its proprietor, the servient owner; he in whose favor it exists, the dominant owner; his land, the DOMINANT tenement. And, as these rights are not personal and do not change with persons who may own the respective estates, it is very common to personify the estates as themselves owning or enjoying the easements.

The distinction between an ordinary easement and an easement in gross is that in the former there is and in the latter there is not a dominant tenement.

The essential qualities of easements:

easements are incorporeal

they are imposed upon corporeal property

they confer no right to participation in the profits arising from it

they must be imposed for the benefit of corporeal or incorporeal hereditaments, and are usually imposed for the benefit of corporeal.

there must be two distinct tenements the dominant, to which the right belongs; and the servient, upon which the obligation is imposed.

the cause must be perpetual

Easements in gross are personal, are not assignable and will not pass by a deed of conveyance; they are not inheritable.

Continuous easements are those of which the enjoyment is, or may be, continual, without the necessity of any actual interference by man; discontinuous are those, the enjoyment of which can be had only by the interference of man.

Easements are as various as the exigencies of domestic convenience or the purpose to which buildings and lands may be applied.

All easements must originate in a grant or agreement, express or implied, of the owner of the servient tenement. The evidence of their existence, by the common law, may be by proof of the agreements itself, or by prescription, requiring an uninterrupted enjoyment immemorially to the extent of the easement claimed, from which a grant is implied.

Rea: Mead v Anderson (19 Pac 708); Kinney v Hooker (26 Ate 690); Dixon v Schermeier (42 Pac 1091); Miller v Hoeschler (105 N.W. 790)

Easements are extinguished:

by release

by merger

by necessity or abandonment

by non-user

The destruction of an easement of a private right of way for public purposes is a taking of the property of the dominant owner for which he must be compensated.

Prescription does not run against the exercise of a servitude in favor of one who resisted and prevented its exercise (Sarpy v Hymel, 4 South 439.) Mere non-user must be accompanied by adverse use of the servient estate (Welsh v Taylor, 31 N.E. 896). One cannot acquire a prescriptive right over his own lands or the lands of another which he occupies as a tenant (Vossen v Dautel, 22 S.W. 734)

SERVITUDE:

The subjection of one person to another person, or of a person to a thing, or of a thing to a person, or of a thing to a thing.

A right which subjects a land or tenement to some service for the use of another kind or tenement which belongs to another master

A mixed servitude is one which arises in consequence of the natural condition or situation of the soil.

A personal servitude is the right of requiring of another what he is bound to do or not to do; this right arises from all kinds of contracts or quasi-contracts.

A real of praedial servitude is a charge laid on an estate for the use and utility of another estate belong to another proprietor. When used without any adjunct, the word servitude means a real or praedial servitude. Real servitudes are divided into rural and urban.

Rural servitudes are those which are due by an estate to another estate, such as the right of passage over the serving estate, or that which owes the servitude, or to draw water from it, or to water cattle there or to take coal, lime and wood from it, and the like.

Urban servitudes are those which are established over a building for the convenience of another, such as the right of resting the joints in the wall of the serving building, of opening windows which overlook the serving estates, and the like.

In common law, the use of the word servitude is as correlative of easement; where one person has an easement which creates a burden upon the property of another, the latter is said to be burdened with servitude. All servitudes are stereotyped and cannot be varied at the pleasure of the parties. (see Merson v Safe Deposit Co., 57 Atl. 569)

WAY:

A right of way is the privilege which an individual or a particular description of individuals, as the inhabitants of a village or the owners or occupiers of certain farms, have of going over anothers ground. It is an incorporeal hereditament of a real nature, entirely different from a common highway.

A right to pass over anothers land more or less frequently according to the nature of the use to be made of the easement, and how frequently is immaterial, provided it occurred as often as the claimant had occasion or chose to pass.

A right of way may arise: by prescription and immemorial usage, or by an interrupted enjoyment under a claim of right; by grant; as where the owner grants to another the liberty of passing over his land; by necessity; as where a man purchases land accessibly only over land of the vendor, or sells, reserving land accessible only over the land of the vendee, he shall have a way of necessity over the land which gives access to his purchase or reservation; and this may exist even after the vendor has conveyed his land to a third person; but a way of necessity is not created by the fact that a road over grantors land would be of less distance to a highway than a road already established; the necessity must be absolute, not a mere convenience; and when it ceases then the way ceases with it; by implication (see Rightsell v Hale, 18 S.W. 245); by reservation expressly made in the grant of the land over which it is claimed; by custom; as where navigators have a right of this nature to tow along the banks of navigable rivers with horses; by acts of legislature; through a private way cannot be so laid out without the consent of the owner of the land over which it is to pass.

A right of way may be either a right in gross, which is a purely personal right incommunicable to another, or a right appendant or annexed to an estate, and which it is appurtenant; a right of way appurtenant to land is appurtenant to all and every part of the land, and if such land be divided and conveyed in separate parcels, a right of way passes to each of the grantees; a way is never presumed to be in gross when it can be construed to be appurtenant to land; where a way appurtenant to land granted is not located by the grant, the parties may locate it by parol agreement at any point on the premises over which the right is granted.

Ways may be abandoned by agreement, by evident intention, or by long non-used. Where a way of necessity once existed it will be presumed to exist until some fact is shown establishing non-existence.

A person cannot acquire a prescriptive right of way over his own lands, or the lands of another which he occupies as tenent; and where one has uninterruptedly used a way over anothers land for the necessary length of time to establish an easement by adverse user, it will be presumed that the user was adverse, and under claim of title, and the burden is on one claiming that it was by virtue of a license to prove that fact.

The owner of a right of way may disturb the soil to pave and repair it. But a way granted for one purpose cannot be used for another.

STREET:

A public thoroughfare or highway in a city or village; a street is not an easement, but a dedication to the public of the occupation of the surface for passing and repassing.

A street, besides it use as a highway for travel, may be used for the accommodation of drains, sewers, aqueducts, water and gaspipes, lines of telegraph, and for other purposes conducive to the general police, sanitary and business interests of a city. Its use belongs, from side to side and end to end, to the public. Streets and squares are for the public use at large.

A street may be used by individuals for the loading and unloading of carriages, for the temporary deposit of movables or of materials and scaffoldings for buildings and repairing, provided such use shall not unreasonably abridge or incommode its primary use for travel.

An encroachment upon a street, the dedication and acceptance of which is established, is nothing more or less than a nuisance, which cannot be aided by lapse of time.

HIGHWAY:

A passage, road or street which every citizen has a right to use

A public right of way over a highway is not an easement, for there is no dominant tenement, and the public are incapable of taking a grant from any one. A private right of way is wholly distinct from a public right of way; it can be exercised only by the occupier of the dominant tenement and his family.

Any act of obstruction which incommodes or impedes the lawful use of a highway by the public, such as arises from unloading carriages, putting up buildings, etc., is a common law nuisance.

Equity will take jurisdiction of a civil action to abate and enjoin the maintenance of an obstruction to a highway which is a public nuisance.

THOROUGHFARE:

A street of way opening at both ends into another street or public highway, so that one can go through and get out of it without returning. It differs from a cul de sac, which is open only at one end.

SIDEWALK:

That part of a public street or highway designed for the use of pedestrians

Generally the sidewalk is included with the gutters and roadway in the general term street.

A municipal corporation which permits a walk to be used for public travel is liable for an injury wrongfully caused by an obstruction thereon, no matter how the walk came into existence.

The remedy for an injury resulting from a defective sidewalk is exclusively against the city, and its liability cannot be avoided by the existence of any ordinance on the subject.

Unguarded holes, pits or excavations are obstructions; in order to hold the city liable for negligence in permitting an obstruction, it must have notice, but this may be constructive thought the lapse of sufficient time for the presumption of notice to arise.

A citizen owes the city the duty to use his senses, and not to run into obstructions with which he is familiar and which he might avoid by exercise of ordinary care.

Even if the city was negligent, a person injured by a defective sidewalk cannot recover unless he show himself in the exercise of due care; and if the accident occurred by reason of the plaintiffs being intoxicated, he cannot recover.

A law requiring the abutting owners to keep sidewalks in repair is a duty cast directly upon the property owner and is in the nature of a police regulation. (see Wilkinsburg Bor v Home for Aged Women, 18 Atl. 937, 6 L.R.A. 531)

During building operations, materials may be placed in the street.

Dominicum That of which one has the lordship or ownership; that which remains under the lord is immediate charge and control.

Dominion ownership or right to property; sovereignty or lordship.

Dominium perfect and complete property or ownership in a thing; its elements are: the right to use, the right to enjoy, and the right to dispose of the thing, to the exclusion of every other person.

Dominium Directum legal ownership; ownership as distinguished from enjoyment

Dominium Utile the beneficial ownership; the use of the property.

Dominus the lord or master; the owner; the owner or proprietor of a thing, as distinguished from him who uses it merely; a master or principal, as distinguished from an agent or attorney.

DRAIN:

To conduct water from one place to another, for the purpose of drying the former

Drainage the right of draining water through another mans land; this is an easement or servitude acquired by grant or prescription.

A state may provide for the construction of canals for drainage marshy and malarious districts, and of leaves to prevent inundations; Hagar v Reclamation Dist, 111 U.S. 701; the expenses of such works may be charged against parties especially benefitted and may be made a lien upon their property.

ANCIENT LIGHTS:

Windows or openings which have remained in the same place and condition twenty years or more; in England, a right to unobstructed light and air through such openings is secured by mere user for that length of time.

One is entitled to as much light as his building may ordinarily require for habitation or business.

To constitute alienable actionable deprivation of light, it is not enough that there be less light than before; there must be a substantial deprivation of light, enough to render occupation uncomfortable according to ordinary notions of mankind.

In England, the obstruction of ancient lights remains a question of nuisance or no nuisance, and the test now is, not how much light has been taken, and whether that is enough materially to lessen the enjoyment and use of the house which the owner previously had, but how much light is left, and whether that is enough for the comfortable use and enjoyment of the house according to the ordinary requirements of mankind.

In the USA, such right is not acquired without an express grant. (The British doctrine is said not be suited to the conditions of a growing country.)

One who claims that the land adjoining his shall remain unimproved shall show an express grant or covenant. There can be no such easement by implication over adjoining unimproved land of the grantor.

As between landlord and tenant, it is held that a lease of a tenement carries with it an implied grant of the right to light and air from the adjoining land of the landlord where the situation and habitual use of the demised tenement are such that the right is essential to its beneficial enjoyment.

See: Janes v Jenkins (6 Am. Rep. 300, 16 Am. L. Rev. 628)

NUISANCE:

That class of wrongs that arises from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or to the right of another, or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage.

A private nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. It produces damage to but one or a few persons, and cannot be said to be public.

A public of common nuisance is such an inconvenience or troublesome offense as annoys the whole community in general and not merely some particular person. It produces no special injury to one more than another of the people.

A mixed nuisance is on which, while producing injury to the public at large, does some special damage to some individual or class of individuals.

It is difficult to say what degree of annoyance constitutes a nuisance. If a thing is calculated to interfere with the comfortable enjoyment of a mans house, it is a nuisance; in relation to offensive trades, it seems that when such a trade renders the enjoyment of life and property uncomfortable, it is a nuisance.

A thing may be a nuisance in one place which is not so in another; therefore, the situation or locality of the nuisance must be considered.

Every citizen holds his property subject to the implied obligation that he will use it in such way as not to prevent others from enjoying the use of their property.

To constitute a public nuisance, there must be such a number of persons annoyed that the offense can no longer be considered a private nuisance.

One who has been divested of littoral rights cannot maintain a suit to enjoin obstructions to his access to navigable waters in front of his land under the rule that individuals are not entitled to redress against a public nuisance. (see McCloskey v Coast Co., 160 Fed 794)

Private nuisances may be to corporeal inheritances or to incorporeal hereditaments.

Any annoyance arising from odors, smoke, unhealthy exhalations, noise, interference with water power, etc., etc., whereby a man is prevented from fully enjoying his own property, may be ranked as a private nuisance.

Remedies:

- by an action for the damages done, by the owner, in the case of a private nuisance; or by an party suffering special damage, in the case of a public nuisance;

- by injunction;

- by indictment for a public nuisance

A private individual cannot abate a nuisance in a public highway, unless it does him special injury, and then only so far as is necessary to the exercise of his right of passing along the highway.

Every continuance of a nuisance or recurrence of the injury is an additional nuisance forming in itself the subject-matter of the new action.

Equity will consider the comparative injury which will result from the granting or refusing of an injunction, and it will not be granted where it will be inequitable and oppressive, as where it would cause a large loss to defendant and others, while the injury, if it is refused, would be comparatively slight and can be compensated by damages.

DONATION

Kinds of Donation

1. Inter vivos

2. Mortis Causa

3. Simple

4. Remunerative

5. Onerous

6. Modal

7. Conditional

(See:

Bonsato v. CA, 60 O.G 3568

Manalo v. De Mesa, 29 Phils 495

Carla v. Dela Steamship, 51 O.G. 755

Di Siok Jian v. Sy Lioc Suy, 43 Phils. 562

Liguez v. CA, L-11240, Dec 18, 1957

Guzman c. Ibea, 67 Phils 633

Cario v. Abaya, 70 Phils 182

Laureta v. Mata, 44 Phils 668

A gift;

Transfer of the title to property to one who receives it without paying for it

Act by which the owner of a thing voluntarily transfers the title and possession of it from himself to another person, without any consideration

A donation is never perfected until it has been accepted; for an acceptance is requisite to make the donation complete

INTERVIVOS

A contract which takes place by the mutual consent of the giver, who divests himself of the thing given in order to transmit the title of it to the donee, gratuitously, and the donee who accepts and acquires the legal title to it.

MORTIS CAUSA

A gift under apprehension of death; as when anything is given upon condition that if the donor dies:

the donee shall possess it absolutely, or

return it if the donor should survive or should repent of having made the gift, or

if the donee should die before the donor.

Differs from a legacy, inasmuch as it does not require proof in the court of probate; and no assent is required from the executor to perfect the donees title.

Differs from a gift intervivos because it is ambulatory and revocable during the donors life, and because it is liable for his debts.

Read: Sheedy v. Roach, 26 Am. Rep. 680 and Williams v. Guile, 22 N.E 1071

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Where actual manual tradition cannot be made, either from their nature or situation at the time in such cases the delivery may be constructive; technically, there must be an acceptance by the donee as well as delivery by the donor; bit this is a matter of slight practical importance, for where the gift is beneficial to the donee, an acceptance will be presumed.

Donation of real property must be in a public instrument

Donation in Private Instrument cannot prevail over sale in public document.

Oral donation may be basis of ownership

Verbal donation may constitute legal basis for adverse possession

Invalid donation may give rise to prescription

Void donation may serve as basis of acquisitive prescription

Oral donation of a real property is void.

A deed of donation that does not identify the land donated is of no effect.

Assignment of a real property which partakes of the nature of donation must be in public instrument and accepted in writing.

Attorney-in-fact of donor is not incapacitated as donee

Incapacities applicable to donations are similar to those testamentary succession.

Acceptance of donation is essential to its validity

No formal notice of acceptance is necessary when donor has confirmed acceptance in open court.

The strict requirement of formal notice is rational only where the donor does not avow receipt thereof or the receipt of the notice is open to doubt.

Acceptance of donation indicates it was intended to be donation inter vivos.

Donation without acceptance is not valid

Donation to church may be accepted by parish priest.

Donation transfers title upon acceptance with all the requisite formalities

Mayor may accept donation to a municipal corporation.

Grandmother may accept pure donation for grandchild although she was not legal guardian.

Conditions in a donation are binding on donees

Where the right to dispose of property was reserved by donor, donation is revocable

Reservation by donor of possession and usufruct of the property is not incompatible with transfer of naked ownership.

Retention of ownership and title by grantor is incompatible with donation inter vivos of such title.

Donee has burden of proving onerous donation

Only onerous donations are governed by law of contracts

Donation in consideration of services rendered and to be rendered by donee is onerous (to be governed by law on contracts)

Donation propter nuptias must be in public instrument (i.e real property)

Donation propert nuptias in private instrument is valid

Donation given to future spouse is not donation propter nuptias.

Donations to forced heirs are subject to collation

Obligation to collate donation does not prescribe during life of donor.

INOFFICIOUS DONATION

Creditors cannot ask for reduction of inofficious donation.

Forced heirs are entitled to have inofficious donation set aside.

Collation of donation may be threshed out in settlement of estate of deceased donor

Donation is inofficious when donor has no other property than that donated

REVOCATION

Courts alone can declare revocation of donation.

Revocation of donation must be with donees consent or by judicial decree.

Action for revocation of donation may be brought by donor even after donees death

Donation may be revoked only on grounds provided by law.

Subsequent disposition of property by donor does not revoke prior donation thereof.

Judicial sanction is necessary for revocation of donation with onerous cause.

Positive proof of non-compliance with conditions is needed to revoke donation

When terms of donation have been substantially complied with, reversion does not lie.

Heirs of donor cannot have better right than predecessor to assail donation made by the latter.

Title to property must revert to donor before latters heirs can sue to recover it as inheritance.

Donor cannot ask for annulment of donation tainted by immoral cause.

Donation is not revocable by donors unilateral act.

Action to revoke donation for breach of condition is intransmissible and prescribes after then years (Ongsiaco v. Ongsiaco, No. L-7510, March 30, 1957)

Prescription of action to revoke donation begins upon commission of breach by donee.

Action for revocation should be filed within 4 years from non-compliance with conditions. ( Nagrampa v. Nagrampa, L-15434, Oct. 31, 1960)

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Donations mortis cause should be executed with the formalities of a will.

Legal heirs, who are not forced heirs, cannot question decedents donations inter vivos.

Irrevocability is a characteristic of donation inter vivos.

Donee who accepts donation is estopped to deny donors ownership.

Donation from husband to wife is illegal.

Lack of description of donated property is curable by extrinsic evidence.

Inscription of donation in the registry does not affect right of adverse claimant.

Donation founded upon immoral consideration is void.

Donation of conjugal properties affects only the donors half interest therein.

Unregistered deed of donation cannot affect third persons.

Mere trustee of property cannot donate it.

Husbands donation of conjugal property is not void in its entirety.

Donation does not require tradition to complete transfer of ownership.

In pari delicto rule does not apply to a donee who is a minor.

Donation between spouses during marriage is ineffective.

Future inheritance of child is not an adverse claim that may be annotated in the title of property donated to another child.

Services between spouses are not contemplated in remunerative or onerous donations

Property donated to wife by her parents is paraphernal property and, hence, does not answer for obligations of husband.

Acceptance of donation of realty should be in a public instrument.

When donation to religious organization is exempt from taxation [ see R.A No. 1916]

Consent of donee is needed for revocation of accepted donation.

Right of action to annul inofficious donation inter vivos accrues after donors death.

Revocation of conditional donation should be made judicially.

Filipino mother and her illegitimate children by a foreigner are qualified to be donees of latters real properties.

Donations made for services rendered are remunerative or compensatory in nature rather than onerous and are in praesenti rather than in future.

Verbal donation of land is not effective to transfer title, but it may explain adverse possession.

Inoperative donation does not bar other heirs from asking for partition.

A donation, whether it be remuneratory or simple, is taxable.

Whatever was given to the service of God became incapable of private ownership; and that when property was given for a particular object such as a church, a hospital, a convent, a community, etc. and the object failed, the property did not revert to the donor, or his heirs, but devolved to the crown, the church, or other convent or community, unless the donation contained an express condition in writing to the contrary [see Roman Catholic Church v. Santos, 7 Phil. 67]

Onerous donation inter vivos partakes of the nature of a contract.

Donation propter nuptias may be subject of reduction at the instance of the donor during his lifetime.

Will cannot revoke donation by reason of marriage. (see Deogracias v. Rosario et al. CA G.R No. 28262-12, July 18, 1966)

Donation in money need not be in writing (if delivery is simultaneously made)

Inofficious donations is subject to reduction upon the death of the donor.

Acknowledgment in deed of sake whereby vendees-donees and vendor-donor admitted the instrument as their free and voluntary act and deed is sufficient acceptance by donees of the donation under Article 749 of the Civil Code.

If a donation is a joint one to both donees, one could not accept independently of his co-donee, for there is no accretion among donees unless expressly so provided, or unless they be husband and wife.

So long as the donation inter vivos has not been judicially declared void, the properties donated are of the absolute ownership of the donee.

Only in an ordinary civil action may it be determined whether the donation was valid and whether the subject property does not now form part of the estate subject to disposition.

Ban on donations between spouses during the marriage applies to a common law relationship

An onerous donation need not be executed in a public document; private writing is sufficient.

Validity of donation can be litigated only in an appropriate action thereof.

Donation of personal property worth over P5,00 must be in writing.

Donees acceptance of donation of real estate must be made during the lifetime of the donor.

There could be no valid donation of the free position of the testators estate where the properties being donated are not specifically described.

Property donated inter vivos is subject to collation after donor is death, whether the donation was made to a compulsory heir or a stranger.

Read: Vda de Tupas v. RTC of N.O Pn XLIII 144 SCRA 622

Fact that donation is irrevocable does not necessarily exempt the donated properties from collation as required under Article 1061 Civil Code.

A co-owner cannot donate specific lot by metes and bounds but only an aliquot part of the whole properties under co-ownership.

Article 764 does not apply to onerous donations in view of Article 733, which provides that onerous donations are governed by the law on contracts.

A valid donation once accepted becomes irrevocable except on account of inofficiousness, failure by the donee to comply with the charges imposed in the donation or by reason of ingratitude.

There is nothing in the law that prohibits the parties from entering into an agreement that a violation of the terms of the contract would cause its cancellation even without court intervention.

Validity of a stipulation in the deed of donation providing for the automatic reversion of the donated property to the donor upon non-compliance of the condition was upheld [ see RCA of Manila v. CA, 198 SCRA 300]; however, judicial intervention is necessary in order to determine whether or not rescission is proper.

Only the donor or his heirs have the personality to question the violation of any restriction in the deed of donation.

If there is no fulfillment or compliance with the resolutory condition, the donation may now be revoked and all the rights which the donee may have acquired under it shall be deemed lost and extinguished.

All crimes which offend the donor show ingratitude and are causes for revocation.

Section 31 of P.D 957 makes a legal obligation on the subdivision owner/developer to donate the open space for parks and playgrounds.

Usurpation is an offense against the property of the donor and considered as an act of ingratitude of a donee against the donor.

The donation is a real alienation which conveys ownership upon its acceptance, hence, any increase in value or any deterioration or loss thereof is for the account of the heir or donee.

For the presumption of fraud under Articles 759 and 1387 of the Civil Code to apply, it must be established that the donor did no leave adequate properties which creditors might have recourse for the collection of their credits existing before the execution of the donation.

Acceptance clause is a mark that the donation is inter vivos; donations mortis causa, being in the form of a will, are not required to be adequate by the donees during the donors lifetime.

Where the deed of donation fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the donor or else is not noted in the deed of donation and in the separate acceptance, the donation is null and void.

Elements of a donation are:

Reduction of the patrimony of the donor

Increase in the patrimony of the donee

The intent to do an act of liberality or animus donandi.

Donative intent is not negated by the presence of other intentions, motives or purposes, which do not contradict donative intent.

Donations, according to their purposes or causes may be categorized as

Pure or simple

Remuneratory or compensatory

Conditional or modal

Onerous

The donation is inofficious if it exceeds this limitation no person may give or receive, by way of donation, more than what he may give or receive by will.

As between the parties to the donation and their assigns, the registration of the deed of donation with the Registry of Deeds is not needed for its validity and efficacy.

PARTY WALL

A wall erected on the line between two adjoining pieces of land belonging to different persons, for the use of both properties

A structure for the common benefit and convenience of both the tenements which it separates

A wall of which the two adjoining owners are tenants in common

Each adjoining owner is possessed in severalty of his own soil up to the dividing line, and of that portion of the wall which rests upon it; but the soil of each, with the wall belonging to him, is burdened with an easement or servitude in favor of the others, to the end that it may afford a support to the wall and building of such other

Every wall and separation between two buildings is presumed to be a common or party wall if the contrary be not shown

4 different senses of the term:

A wall of which the two adjoining orders are tenants in common

A wall divided longitudinally into two strips, one belonging to each of the neighboring owners

A wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenants

A wall divided longitudinally into two moieties. Each moiety being subject to a cross-easement in favor of the owner of the other moiety

Party walls are generally regulated by statute

The law of party walls is based on the doctrine of lateral support and is a statutory extrusion of the principle to buildings. An owner of a party wall cannot extend the beams of his buildings beyond the middle of the wall.

See:

Panton vs. Holland, 8 Am. Dec. 369

Lederer & Strauss vs. C. Inc. Co., 106 N. W. 357

Brooks vs. Curtis, 10 Am. Rep. 545

Partridge vs. Gilbert, 69 Am. Dec. 632

A party wall must be built without openings; a party wall can only be built for mutual support; the principle of party wall is based upon mutual benefit, and does not extend to the interior of lots where the adjoining owner cannot be expected to build

See:

Gorham vs. Gross, 28 Am. Rep. 224

Hoffman vs. Kuhn, 34 Am. Rep. 491

Odd Fellows Assn. vs. Hegele, 32 Pac. 679

Stehr vs. Raben, 50 N. W. 327

Gibson vs. Holden, 56 Am. Rep. 146

Spaulding vs. Grundy, 104 S. W. 293

Sebald vs. Mulholland, 50 N. E. 260

Kinnear vs. Moses, 73 Pac. 380

LATERAL SUPPORT

The right of having ones land and the structures erected thereon supported by the land of a neighboring proprietor.

Each of two adjoining land-owners is entitled to the support of the others land. The right of lateral support exists only with respect to the soil in its natural condition and it is an incident to the land in that condition. (Gilmore v Driscell, 23 Am.Rep. 312)

Read: Richardson v R. Co. 60 Am. Dec. 283 and Bonquois v Monteleone, 17 South. 305

A adjacent owner may excavate his own land for such purposes as he sees fit, provided he does not dig carelessly or recklessly; and if, in so doing, the adjacent earth gives way, and the house falls by reason of the additional weight placed upon the natural soil, the owner of the house is without remedy. It was his folly to place it there. But if it shall have stood for 20 years with the knowledge of the adjacent proprietor, it acquires easement of the support in the adjacent soil But this right of a landowner to support his land against that of the adjacent owner does not extend to the support of any additional weight or structure that he may place thereon. If, therefore, a man erect a house upon his own land, so near the boundary line thereof as to be injured by the adjacent owners excavating his land in a proper maneuver, and so as not to have caused the soil of the adjacent parcel to fall if it had not been loaded with an additional weight, it would be DAMNUM ABSQUE INJURIA, - a loss for which the person so excavating would not be responsible in damages.

The unquestionable right of a land-owner to remove the earth from his own premises adjacent to anothers building is subject to the qualification that be shall use ordinary care to cause no unnecessary damage to his neighbors property in so doing.

It has been held that prior notice to the neighbor whose property may be endangered by the excavation is an essential part of the ordinary care referred to.

In many cases it is held that after notice from the owner who proposes to excavate, it is the duty of his neighbor to shore up his own building.

The owner of land cannot be deprived of his right to excavate his won land by the action of his neighbor in building at or near the boundary live, and if the conduct his operations with due care, and no right by grant or prescription has been acquired by his neighbor, he is not liable, even though the building of the latter ruined.

The American doctrine is that an easement for the support of a building cannot be acquired by prescription.

The action for a wrong is not for the excavation, the land owner does not sustain damages until there is an actual subsidence of his soil. (Kansas City NWR Co. v Schwake, 78 Pac 431)

The measure of damages in actions for removing the lateral support of anothers land is the amount required to restore the property to its former condition with as good means of lateral support, and special damages must be specially pleaded; or the diminution of the value of the land by falling, caving, or washing, as the natural result of the excavation.

Read Graves v Mattison, 32 Atl 498

The right of support is an easement which one man, either by contract or prescription, enjoys, to rest the joints or timbers of his house upon the wall of an adjoining building owned by another person. It is a right to the support of ones land so as to prevent its falling into an excavation made by the owner of adjacent lands.

This support is of two kinds, lateral and subjacent lateral support is the right of the land to be supported by the land, which lies next to it. Subjacent support is the right of land to be supported by the land, which lies under it.

HOMESTEAD

The home place, it is the home the house and the adjoining land where the head of the family dwells

Term necessarily includes the idea of residence

The homestead laws are constitutional or statutory provisions for the exemption of a certain amount or value of real estate occupied by a debtor as his homestead from a forced sale for the payment of his debts.

In some cases, restraints are placed upon the alienation by the owner of his property, and in some cases the exempt property, upon the death of the owner, descends to the heirs, free from liability for his debts.

In some states, there is money limit put to the homestead; in others a limit of the quantity of land exempted

Homesteads may be designated by one of 3 ways:

1. By a public notice of record

2. By visible occupancy and use

3. By the actual setting apart of the homestead

The right of redemption is lost by the unequivocal abandonment of the homestead by the owner, with the intention of no longer treating it as his place of residence

When the homestead character has once attached, it may persist for the benefit of a single individual, who is the sole surviving member of the family

GIFT

A voluntary conveyance or transfer of property (without consideration)

Delivery is essential; without actual possession, the title does not pass. A mere intention or naked promise to give, without some act to pass the property, is not a gift.

A gift is effectual only after the intention to make is has been accompanied by delivery of possession or some equivalent act

When the gift is perfect it is then irrevocable, unless it is prejudicial to creditors or the donor was under a legal incapacity or was circumvented by