property reviewer

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PROPERTY Requisites: (USA) (a) Utitlity (b) Substantivity (c) Appropriability or susceptibility to appropriation Classification: According to Mobility (1) Immovables or real (Art. 415) a) immovables by nature (pars 1 and 8) – those which cannot be moved from place to place i. Land, buildings, roads and constructions of all kinds adhered to the soil ii. Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant b) immovables by incorporation (pars 2, 3, 7) – those which are essentially movables but are attached to an immovable i. Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable ii. Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object iii. Fertilizer actually used on a piece of land c) immovables by destination (pars 4, 5, 6, 9)– those which are essentially movables but by the purpose for which they have been placed in an immovable i. Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements ii. Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works iii. Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included iv. Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast d) immovables by analogy or by law (par. 10) i. Contracts for public works, and servitudes and other real rights over immovable property (2) Movables –(Art. 416 to 417) a) Those movables susceptible to appropriation which are not included in the preceding article b) Real property which by any special provision of law is considered as personal property c) Forces of nature which brought under control by science; and in general, all things which can be transported from place to place without impairment of the real property to which they are fixed d) Obligations and actions which have for their object movables of demandable sums and e) Shares of stock of agricultural, commercial and industrial entities although they may have real estate. Notes: Separate treatment by the parties of a building from the land on which it stands does not change the immovable character. The fact that parties seem to have dealt with it separate and apart from the land in no wise changed its character as real property. (Leung Yee v. Strong Machinery) Buildings being immovable by nature, the ownership of the land on which they are erected cannot change their nature as immovable property When trees and plants are cut or uprooted, they become movables When ungathered fruits are sold, there is a sale of movables. Immovable condition of machineries depends upon their being destined for use in the industry or work in the tenement. Where chattel mortgage is constituted on machinery permanently attached to the ground, machinery is personal property and mortgage is not null and void, regardless of who owns the land. (Makati Leasing and Finance Corp v. Wearever Textile Mills) Intellectual property or the right of the author, artist or inventor over his work is personal property. Obligations under Article 418 refer to credits such as bonds. Half-interest in a business is personal property capable of appropriation and may be subject to mortgage (Strochercker v. Ramirez) Cases Machinery which is movable in its nature only becomes immobilized when placed in a plant by the owner of a property or plant but not when placed by a tenant, usufructuary etc. unless acting as an agent of the owner. (Davao Sawmill v. Castillo)

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Page 1: Property Reviewer

PROPERTY Requisites: (USA)

(a) Utitlity (b) Substantivity (c) Appropriability or susceptibility to

appropriation Classification: According to Mobility (1) Immovables or real (Art. 415) a) immovables by nature (pars 1 and 8) –

those which cannot be moved from place to place i. Land, buildings, roads and

constructions of all kinds adhered to the soil

ii. Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant

b) immovables by incorporation (pars 2, 3, 7)

– those which are essentially movables but are attached to an immovable i. Trees, plants, and growing fruits, while

they are attached to the land or form an integral part of an immovable

ii. Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object

iii. Fertilizer actually used on a piece of land

c) immovables by destination (pars 4, 5, 6,

9)– those which are essentially movables but by the purpose for which they have been placed in an immovable i. Statues, reliefs, paintings or other

objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements

ii. Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works

iii. Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them

permanently attached to the land, and forming a permanent part of it; the animals in these places are included

iv. Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast

d) immovables by analogy or by law (par. 10)

i. Contracts for public works, and servitudes and other real rights over immovable property

(2) Movables –(Art. 416 to 417) a) Those movables susceptible to

appropriation which are not included in the preceding article

b) Real property which by any special provision of law is considered as personal property

c) Forces of nature which brought under control by science; and in general, all things which can be transported from place to place without impairment of the real property to which they are fixed

d) Obligations and actions which have for their object movables of demandable sums and

e) Shares of stock of agricultural, commercial and industrial entities although they may have real estate.

Notes: • Separate treatment by the parties of a

building from the land on which it stands does not change the immovable character. The fact that parties seem to have dealt with it separate and apart from the land in no wise changed its character as real property. (Leung Yee v. Strong Machinery)

• Buildings being immovable by nature, the ownership of the land on which they are erected cannot change their nature as

immovable property • When trees and plants are cut or uprooted,

they become movables • When ungathered fruits are sold, there is a

sale of movables. • Immovable condition of machineries

depends upon their being destined for use in the industry or work in the tenement.

• Where chattel mortgage is constituted on machinery permanently attached to the ground, machinery is personal property and mortgage is not null and void, regardless of who owns the land. (Makati Leasing and Finance Corp v. Wearever Textile Mills)

• Intellectual property or the right of the author, artist or inventor over his work is personal property.

• Obligations under Article 418 refer to credits such as bonds.

• Half-interest in a business is personal property capable of appropriation and may be subject to mortgage (Strochercker v. Ramirez)

Cases Machinery which is movable in its nature only becomes immobilized when placed in a plant by the owner of a property or plant but not when placed by a tenant, usufructuary etc. unless acting as an agent of the owner. (Davao Sawmill v. Castillo)

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While generally, real estate connotes the land and the building constructed thereon, it is obvious that the inclusion of the building, separate and distinct from the land, in the enumeration of what may constitute real properties (Art 415, par 1 NCC) could mean only one thing – that a building is by itself an immovable property. In view of any specific provision to the contrary, a building is an immovable property, irrespective of whether or not said structure and the land on which it is adhered belong to the same owner. (Lopez v.

Orosa) Since only personal properties could be the subject of a chattel mortgage, the execution and registration of the chattel mortgage and the foreclosure of the house are null and void. (Associated Insurance & Surety Co. v. Iya) It is undeniable that the parties to a contract may by agreement treat as personal property that which by its nature would be real property, as long as no interest of third parties may be prejudiced thereby. (Makati Leasing and Finance Corp. v. Wearever Textile Mills) Importance and Significance of Classification of Property (a) Criminal law

Usurpation of property can take place only with respect to real property. On the other hand, robbery and theft can be committed

only against personal property.

(b) Form of contracts involving movables or immovables Only real property can be the subject matter of real property and antichresis, while only personal property can be the subject matter of simple loan or mutuum, voluntary deposit, pledge and chattel mortgage.

(c) Prescription The determination of the prescriptive period

depends on whether the property is real or personal. Ownership over immovables is acquired by prescription, although there is bad faith in 30 years (Art. 1137), whereas the period is only 8 years in case of movables.

(d) Venue

In private international law, the general law is that immovables are governed by the law of the country in which they are located,

whereas movables are governed by the personal law of the owner which in some case is the law of his nationality and in other cases, the law of his domicile.

(e) Taxation

The classification of property into realty or personalty is different for t taxation purposes. The NCC only supplements the Tax Code. Differences between Real Rights and Personal Rights Kinds of rights considered as property (a) Real (jus in re)—power belonging to a

person over a specific thing. It gives direct and immediate juridical power over a thing susceptible of being exercised against a

determinate person and the whole world. (b) Right of obligation or Personal (jus ad

rem)—rights belonging to one person to demand of another as a definite passive subject, the fulfillment of a prestation to give, to do, or not to do.

Real rights arises from (OPLUMEPARP)

1. Ownership 6)Easement 2. Possession 7) Pledge 3. Lease 8) Antichresis 4. Usufruct 9) Redemption 5. Mortgage 10)

Preemption

Real Rights Personal Rights (1) One definite active

subject and the rest

of the world as passive

(2) Object is a corporeal thing.

(3) Real right affects the thing directly.

(4) The creation of the

juridical relation is by mode and title.

(5) Extinguished by the

loss or destruction of the thing.

(6) Gives rise to real actions against 3rd persons

(1) There is a definite active

and passive object.

(2) Object is an intangible thing.

(3) Personal affects the thing directly through the prestation of the debtor.

(4) Creation of the juridical title is by title alone.

(5) Not extinguished by the loss or destruction of the thing.

(6) Produces only personal actions against definite debtor.

Classification of Movables (a) Consumables – Those whose use

according to their nature destroys the substance of the thing or causes their loss to the owner.

(b) Non-consumable Classification According to Ownership a) Public Dominion

i. intended for public use

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ii. intended for public service of state, provinces, cities & municipalities

Characteristics: i. outside the commerce of men – cannot

be alienated or leased ii. cannot be acquired by private individual

through prescription iii. not subject to attachment & execution iv. cannot be burdened by voluntary

easement

b) Private Ownership –

i. patrimonial property of state, provinces, cities, municipalities -exist for attaining economic ends of

state -property of public dominion when no longer intended for public use/service – declared patrimonial

ii. property belonging to private persons –

individually or collectively

Cases Reclaimed land is public property. In case of gradual erosion by the ebb and flow of the tide, private property may become property of the public domain, where it appears that the owner abandoned it or permitted it to be destroyed. When they stay in that condition until reclaimed by filling in done by the government, they continue to be government property after reclaiming. Immediate possession by the former owner does not confer on him ownership of the

lots, because, as they were converted into property of the public domain, no private person could acquire title except in the form and manner established by law. (Government of the Philippine Islands v. Cabangis) The sale to private parties of a public road which has been validly closed by the city government is valid. Art 422 of the Civil Code expressly provides that “property of public dominion, when no longer intended for public use of for public service, shall form part of the patrimonial property of the State.” (Cebu Oxygen and Acetylene v. Bercilles) The attachment of the municipal trucks, police cars, police station and market stalls is void because the properties levied upon are exempt from execution. It is generally held that property owned by a municipality, where NOT used for a public purpose but for quasi-private purposes, is subject to execution on a judgment against a municipality, and may be sold.

However, property for public use of the municipality is not within the commerce of man so long as it is used by the public and, consequently, said property is also inalienable. Property, real and personal, held by municipalities in trust for the benefit of their inhabitants, and used for public purposes, is

exempt from execution. (Vda. De Tantoco v. Municipal Council of Iloilo) In the absence of a deed or title to any land claimed by the City as its own, showing that it was acquired with its private or corporate funds, the presumption is that such land came from the State upon the creation of the municipality. Such property is held in trust for the benefit of its inhabitants, whether it be for governmental or proprietary purpose. (Salas v. Jarencio)

Public funds are held in trust for the people, intended and used for the accomplishment of the purposes for which municipal corporations are created, and that to subject said properties and public funds to executions would materially impede, even defeat, and in some instances, destroy such purpose. (Municipality of San Miguel v. Fernandez) There are 2 norms of classification of property. Art. 423 and 424 CC provide that except for property for public use and public works for public service paid for by provinces, cities or municipalities, “All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws.” Under this, all but 2 of the properties would be patrimonial properties of the former province. Under the law on Municipal Corporations, however, to be considered public property, it is enough that property be held and devoted for governmental

purposes. Using this, 26 of the lots are patrimonial. (Province of Zamboanga del Norte v. City of Zamboanga) The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by the certificates of title in the name of PEA, are alienable lands of the public domain. PEA may lease these lands to private corporations but may not sell or transfer ownership of these lands to private corporations. PEA may only sell these lands to Philippine citizens, subject to the ownership limitations in the 1987 Constitution and existing laws. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural resources of the public domain until classified as alienable or disposable land open to disposition and declared no longer needed for public service. The government can make such classification and declaration only after PEA has reclaimed these submerged areas. Only then can these

lands qualify as agricultural lands of the public domain, which are the only natural resources the government can alienate. In their present state, the 592.15 hectares of submerged areas are inalienable and outside the commerce of man. (Chavez v. PEA)

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OWNERSHIP • Independent and general right of a person to

control a thing particularly in his possession, enjoyment, disposition, and recovery, subject to no restrictions except those imposed by the state or private persons, without prejudice to the provisions of the law.

• Power of a person over a thing for purposes recognized by law & within the limits established by law

Attributes of Ownership (1) Jus possidendi- right to possess (2) Jus Utendi (right to use)—right to enjoy by

receiving the thing that it produces. (3) Jus abutendi—right to enjoy by consuming

the thing by its use (4) Jus Disponendi—the right to dispose or the

power of the owner to alienate, encumber, transform, and even destroy the thing owned. - Includes right no to dispose - This right is reserved exclusively to the owner - This right can be partial if it can be divided. It can also be temporary as in the case of lease or pledge.

(4) Jus Fruendi – right to receive fruits (5) Jus Vindicandi—right to exclude from the

possession of the thing owned by any other person to whom the ownership has not transmitted such thing, by the proper action for restitution, with the fruits, accessions, and indemnification for

damages.

Actions for possession:

1. movable – replevin (return of a movable) 2. immovable –

a) forcible entry – used by person deprived of possession through Force, Intimidation, Strategy, Threat or Stealth (FISTS)

b) unlawful detainer – used by lessor/person having legal right over property when lessee/person withholding property refuses to surrender possession of property after expiration of lease/right to hold property (physical possession, 1 year from the last date of demand to vacate the premises)

c) accion publiciana – plenary action to recover possession when owner is dispossessed by any other means than the grounds for instituting a Forcible Entry and Unlawful Detainer case.

d) accion reinvindicatoria – recovery of dominion of property as owner; main issue is ownership not merely possession.

e) Writ of Possession -- the original

registered owner in the Torrens System, is entitled to a writ of

possession not only against the parties who appear and answer in the land registration proceedings, but also against all those who, having been served with process, do not appear or answer.

f) Writ of injunction • Not a proper remedy for the recovery

of possession UNLESS plaintiff is admittedly the owner of the property and is in possession of it.

• May be used to prevent or restrain acts of trespass or illegal interference by others of his possession of the property.

• In actions of FE, the plaintiff within 10 days from the filing of the complaint, may file a motion for a Writ of Preliminary Mandatory Injunction to restore him in possession (mandatory) and prevent further acts of dispossession (injunction).

(6) Right to Exclude: Doctrine of Self-Help Doctrine of self-help authorizes the lawful possessor to use reasonable force to prevent a threatened unlawful invasion or usurpation of the property. Elements:

a) Person exercising rights is owner or lawful possessor

b) There is actual or threatened unlawful physical invasion of his property (not available to squatters)

c) Use force as may be reasonably necessary to repel or prevent it -Available only when possession has not yet been lost, if already lost – resort to judicial process -May be exercised by 3rd person – negotiorum gestio

(7) Right to Enclose or Fence without detriment

to servitudes constituted thereon. • A person cannot enclose his tenement and

construct a fish pond that will obstruct the natural flow of waters from the upper tenements to the injury of the owners of such tenements. (Lunod v. Meneses)

(8) Right to Receive Just Compensation in case

of Expropriation (9) Right to Space and Subsoil

• The right of the owner extends to the space and subsoil as far as necessary for his practical interests or to the point where it is possible to assert his dominion and there is

the possibility of obtaining some enjoyment or benefit. Beyond these limits, he would have no legal interests.

(10) Right to Hidden Treasure (if found on his property)

a) hidden and unknown movables consist of money or precious objects

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b) owner is unknown c) If treasure is found by a stranger by

chance –½ belongs to finder; the finder must not be trespasser be entitled to a share.

• Discovery by chance When there is no purpose or intent to look for the treasure.

(12) Right to accession Notes

• Requisites in an action to recover (a) Identity of the property (b) Strength of plaintiff’s title/ Better Title • Plaintiff must depend on the strength of

his own title and not on the weakness of the title of the other.

• One year after a decree of registration under the Torrens System, the title becomes perfect and indefeasible.

• Ownership and title to land duly recorded cannot be overcome by gratuitous titles such as inheritance or donation or mere tax declarations.

• Tax declarations are strong evidence of ownership where accompanied by possession for period sufficient for prescription.

• Titles from the Spanish government have been held sufficient basis to prove ownership. Composition titles—proof of exclusive

ownership

Possessory information title—only prima facie evidence and rebuttable.

Cases Art. 433 of the NCC provides: “Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for recovery of the property.” Under Art. 538 NCC, the present possessor is to be preferred in cases where there are conflicting claims. Since defendants are presently in possession of the property, they enjoy the presumption of ownership in their favor which has not been successfully rebutted by evidence. (Perez v. Mendoza)

Ownership, which had been judicially confirmed by the CFI in a proceeding in rem could not be defeated by the claim of the adverse party based on a mere unnotarized affidavit. The Original Certificate of Titles has become indefeasible and incontrovertible. As to the

unnotarized affidavit, it failed to identify the properties involved; it is not a sufficient basis or support for the alleged partition. (Dizon v. CA)

Limitation of Real Right of Ownership (1) For the benefit of the state and for public

interest (Police power, eminent domain, taxation)

(i) Expropriation for public use (ii) Military requisitions (iii) Zonification laws (iv) Public or government monopolies (v) Law on water and mines (vi) Public health and safety (vii) Public easements

(2) Legal servitudes and Voluntary Servitudes (3) Limitations imposed by party transmitting

property (i) Either by contract or last will or

donations (ii) Stipulation on inalienability

(4) True Owner Must Resort to Judicial Process (5) Sic Utere Tuo Ut Alienum Non Laedas—it is

unlawful to exercise the right of ownership in such a manner as to have no other effect than to injure a third person without benefit to the owner.

(a) Act in State of Necessity • The law permits the injury or

destruction of things belonging to others provided this is necessary to avert a greater danger or dangers.

• Different from concept of self-help; the purpose is to protect the actor himself or another person at the expense of the owner of the property who has no part in the state of necessity.

(b) Liability of Proprietors under Article

2191, NCC

(c) Fortified places or Fortresses- must comply with conditions under special laws and regulations

(d) Easement of Aqueduct- must observe proper distances and prevent damage to neighboring tenements

(e) Planting of Trees (f) Easement of light and view (g) Easement of right of way (h) Easement of Passage of Water from

Upper to Lower Tenements (i) Easement of Drainage (j) Easement of aqueduct (k) Lateral and Sub-adjacent Support

ACCESSION

• The right by virtue of which the owner of a

thing becomes the owner of everything that it may produce or which may be inseparably united or incorporated thereto, either naturally or artificially.

• Based on principles of justice, necessity and utility

General Principles of Accession (1) Accessory follows the principal (accesio

cedit principal) (2) No unjust enrichment (Art. 443) (3) All works, sowing, and planting are

presumed made by the owner and at his

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expense, unless the contrary is proved (Art. 446)

(4) Accessory incorporated to principal such that it cannot be separated without injury to work constructed or destruction to plantings or construction of works.

(5) Bad faith involves liability for damages and other dire consequences

(6) Bad faith of one party neutralizes bad faith of the other (Art. 453).

(7) Ownership of fruits belong to the principal

thing; Exceptions: (i) possession in good faith – possessor is

entitled to fruits (ii) in usufruct – usufructuary is entitled to

fruits (iii) in lease – lessee is entitled to fruits (iv) in antichresis – antichretic creditor is

entitled to fruits

Kinds of Accession

(1) Accession discreta – the right pertaining to the owner of a thing over everything produced thereby:

(a) Natural fruits, or spontaneous products of the soil, and the young and other products of animals (Art. 442)

(b) Industrial fruits, or those produced by lands of any kinds through cultivation or labor (Art. 442)

(c) Civil fruits, or rents of buildings, the

price of leases of and other property and the amount of perpetual or life annuities or other similar income (Art. 442)

• A dividend, whether in the form of cash

or stock, is income or fruit and consequently should go to the usufructuary, rather than the owner of the shares of stock in usufruct. Dividend is declared only out of the profits of a corporation and not out of its capital. (Bachrach vs. Seifert).

• A bonus paid by the mortgage-debtor

to another who had mortgaged his land to secure the payment of the debtor’s obligation to a bank is not a civil fruit of the mortgaged property. It is not income delivered from the property but a compensation granted for the risk assumed by the owner of the property. (Bachrach vs. Talisay-Silay)

(2) Accession Continua – the right pertaining to the owner of a thing over everything that is incorporated or attached thereto, either naturally or artificially.

(a) With regard to immovable property (a.1) Accession industrial (BPS)

(i) Building, (ii) Planting, or (iii) Sowing (Arts. 445-455)

(a.2) Accession natural (FACA)

(i) Alluvium (ii) Avulsion (iii) Change in the course of river (iv) Formation of islands

(b) With regard to movable property (ACS) (b.1) Adjunction or conjunction

(i) inclusio or engraftment

(ii) soldadura or attachment

(a) ferruminatio – objects are of the same metal

(b) plumbatura – objects are diff. metals

(iii) tejido or weaving

(iv) pintura or painting

(v) escritura or writing

(b.2) Commixtion or confusion

(b.3) Specification

Notes:

Accession Industrial

• Art. 446 establishes 2 disputable presumptions regarding BPS:

(a) The works etc. were made by the owner

(b) They were made at the owner’s expense

Exception: When contrary is proven

Right of owner of materials (OM)

1. Right to be indemnified or paid of value of property by owner of land

2. Right to remove materials if he can do so w/o injury to work constructed if owner has not paid

3. Right to damages and demolition even if with injury to work if owner of land is in bad faith

1st Case:

Landowner (LO) is BPS using materials of another

• Good Faith OM—lies in ignorance of BPS’ acts

BPS/LO—belief that the materials belong to him and who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it

Note: his negligence may subject him to liability for damages

• Bad Faith

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OM—allowing the use of the materials without protest

BPS/LO—knowledge of lack of title and the absence of permission of the owner of the material to pay their value

Landowner and BPS

Owner of Material

Good faith

1. Right to acquire the improvements after paying the value of materials

Bad faith

1. Acquire BPS after paying its value and paying indemnity for damages (Art. 447) but subject to OM’s right to remove

Good faith

1. Right to acquire the improvements without paying indemnity

2. Right to acquire indemnity for damages if there are hidden defects known to OM

Bad faith

(Same as though acted in good faith under Art. 453)

Good faith

1. Limited right of removal if there would be no injury to work constructed, or without plantings or constructions being destroyed (Art. 447)

2. Right to receive payment for value of materials

Good faith

1. Right to receive payment for value of materials

2. Absolute right of removal of the work constructed in any event

Right to be indemnified for damages

Bad faith

1. Lose materials without right to indemnity

Bad faith

(Same as though acted in good faith under Art. 453)

2ND Case:

BPS builds, plants, or sows on another’s land using his own materials

• Good faith OM/BPS—lies in belief that the land belongs to him, and his ignorance of any defect or flaw in his title.

LO—ignorance of the BPS’ acts, or belief that the BPS has the right to construct, plant or sow

• Bad faith OM/BPS—lies in his knowledge of his lack of title and absence of permission of the LO

LO—knowledge of BPS’ lack of right to construct, plant or sow

(1) Option is given to Landowner

(2) Right of LO to remove or demolish improvement

• LO cannot refuse to exercise his right of choice and compel the BPS to remove or demolish the improvement. He is entitled to such removal only when after having chosen to sell his land, the other party fails to pay for the same.

(3) Right of LO to require payment for value of the land

• The purpose of the exception (if the value of land is considerably more than that of the building or trees) is to prevent injustice. It is considered inequitable in such case to compel the BP to pay for the price of the land.

• A “forced lease” is created b/w the parties if the LO does not choose to appropriate

the improvement after the proper indemnity.

• As to when the land’s value is “considerably more” than that of the improvement will have to be determined by the court taking into consideration the circumstances of each particular case.

(5) Cases not covered

• Art. 448 does not apply which are governed by other provisions of law: (a) co-ownership (b) usufruct (c) agency (d) lease

• Where there is a contractual relation existing between the LO and the BPS, their stipulations govern.

Landowner BPS and Owner of Material

Good faith

Good faith

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LO has option to:

a) Acquire the improvement after paying indemnity which may be the:

- original cost of improvement or

- increase in

value of the whole brought about by the improvement

b) Sell the land to the BP pr collect rent from sower unless:

- value of land is more than the thing built, planted or sown

- BP shall pay rent fixed by parties or by the court in case of disagreement

Note: LO can be forced to choose under pain of direct contempt or court can choose for him

Good faith

1. LO has right to collect damages in any case and option to:

a) Acquire improvements without paying indemnity if the improvements are still standing on the land

b) Sell the land to BP or collect rent from the sower unless the value of the improvements in which case there will be a forced lease

c) Order demolition of improvements or restoration of land to its former condition at the BPS’ expense.

2. LO must pay for necessary expenses for

preservation.

BPS has right to retain the land until the payment of indemnity (right of retention)

Note: During this period BPS is not required to pay rent

Bad faith

1. Pay damages to LO

2. BPS lose materials without right to indemnity

3. No right to refuse to buy the land

Bad faith

1. LO must indemnify BPS for the improvements and pay damages as if he himself did the BPS

2. LO has no option to sell the land and caanot compel BPS to

buy the land unless BPS agrees to

Bad faith

(Same as though acted in good faith under Art. 453)

4. Recover necessary expenses for

preservation of land.

Good faith

BPS has right to:

a) be indemnified for damages

b) remove all improvements in any event

Bad faith

(Same as though acted in good faith under Art. 453)

3rd Case:

BPS builds. Plants, or sows on another’s

land with materials owned by third person

(1) Liability of LO

• He shall be subsidiarily liable for the value of the materials if the following requisites are present: (a) The OM has not acted in bad faith (b) The BPS has no property with which to

pay; and (c) LO appropriates the accession to

himself

(2) Right of BPS who pays OM

• If BPS pays the OM, the former may seek reimbursement from the LO for the value of the materials and labor to prevent unjust enrichment of the LO at the expense of the BPS. This is true if:

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(a) The BPS acted in good faith; and (b) The LO appropriates the improvement

Landowner BPS OM

Good faith

1. Right to acquire improvements

and pay indemnity to BPS; subsidiarily liable to OM

2. Has option to:

a) Sell land to BP except if the value of the land is considerably more

b) Rent to sower

Good faith

1. Right to acquire improvements and pay indemnity to BPS

2. Has option

to:

a) Sell land to BP except if the value of the land is considerably more

b) Rent to sower

3. Without subsidiary liability for cost of materials

Good faith

1. LO has right to collect damages in any case and option to:

a) Acquire

improvements w/o paying

Good faith

1. Right of retention until necessary

and useful expenses are paid

2. Pay value of materials to OM

Good faith

1. Right of retention until necessary and useful expenses are paid

2. Keep BPS without indemnity to OM and collect damages from him.

Good faith

1. Collect value of materials

primarily from BPS and subsidiarily liable for LO if BPS insolvent

2. Limited right of removal

Bad faith

1. Lose the materials without right to indemnity

2. Must pay

for damages to BPS

for indemnity; or

b) Demolition or restoration; or

c) Sell to BP, or to rent to sower

2. Pay

necessary expense to BPS

Bad faith

(Same as when all acted in good faith under Art. 453)

Bad faith

1. Acquire improvement after paying indemnity and damages to BPS unless latter decides to remove improvements

2. Subsidiarily liable to OM

for value of materials

Bad faith

1. Acquire improvements after indemnity; subsidiraily liable to OM for value of materials

2. Has option to:

a) Sell the land to BP except if the value of the land is considerably more

b) Rent to sower

Bad faith

1. Recover necessary expenses for preservation of land from LO unless LO sells land

Bad faith

(Same as when all acted in good faith under Art. 453)

Good faith

1. May remove improvements

2. Be indemnified

for damages in any event

Bad faith

1. Right of retention until necessary expenses are paid

2. Pay value

Bad faith

1. Recover value from BPS (as if both are in good faith)

2. If BPS acquires improvement, remove

materials if feasible w/o injury

3. No action against LO but liable to LO for damages

Bad faith

(Same as when all acted in good faith under Art 453)

Good faith

1. Remove materials if possible w/o injury

2. Collect

value of materials from BPS; subsidiarily from LO

Good faith

1. Collect value of materials primarily from BPS and subsidiarily from LO

2. Collect damages from BPS

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Good faith

1. Acquire improvement after paying indemnity; subsidiarily liable to OM

2. LO has option to:

a) Sell land to BP except if value of land is considerably more

b) Rent to sower

Bad faith

1. Acquire improvements and pay indemnity and damages to BPS unless latter decides to remove materials

of materials to OM and pay him damages

Bad faith

1. Right of retention until necessary expenses are paid

2. Pay value of materials to OM

3. Pay damages to OM

Good faith

1. Receive

indemnity for damages

2. Absolute right of removal of improvements in any event

3. If BPS acquires improvements, remove materials in any event

Good faith

1. Collect value of materials primarily from BPS and subsidiarily from LO

2. Collect damages from BPS

3. If BPS acquires improvements, absolute right of removal in any event

Bad faith

1. No right to indemnity

2. Loses right to material

Cases:

When, in the face of a conflict between the rights of an owner and a builder, sower, planter in good faith, the owner opts to sell the land to the BPS who is subsequently unable to pay, the BPS loses his right of retention. A forced co-ownership occurs when the BPS has acted in good faith . It is the owner of the land who is allowed to exercise the option because his right is older and because, by the principle of accession, he is entitled to the ownership of the

accessory thing. When the BPS failed to pay for the land, he lost his right of retention. (Bernardo vs. Baticlan)

Since the option to remove or demolish improvement is given to the LO and it is limited to paying for the improvement or selling his land to the BPS, he cannot refuse to exercise his right of choice and compel the builder to remove or demolish the improvement. He is entitled to such removal only when after choosing to sell his land, the other party fails to pay for the same. (Ignacio vs Hilario)

The owner of a building erected in good faith on a land owned by another is entitled to retain possession of the land until he is paid the value of the building. An order by a court compelling a builder in good faith to remove is building from land belonging to another who chooses neither to pay for such building nor sell the land is null and void for being offensive to Art. 448. (Sarmiento v. Agana)

In Depra vs Dumlao, the SC laid down the guidelines for enforcement of rights under Art. 448 and 546

1. TC must determine the fair price of the land, expenses for improvement and increase in value of land due to improvements.

2. TC must grant period where:

a) landowner must exercise option

b) parties must pay in accord with the option chosen

c) builder can refuse to offer to sell if value of land is greater than the value of improvements

d) if the situation is that of (c), the parties can agree upon the terms of the lease. If there are

no agreements, the TC must fix the terms.

While a possessor in good faith may retain the property until he is reimbursed for necessary and useful expenses, all the fruits he receives from the moment his good faith ceases must be deferred or paid by him to the LO. He may, however, secure the reimbursement of his expenses by using the fruits to pay it off (deduct the value of the fruits he receives from the time his good faith ceases from the reimbursement due him). (Ortiz vs Kayanan)

A BPS in good faith does not lose its rights under Art. 448 merely because of the fact that some years after acquiring the property in good faith, it learned about and aptly recognized the right of the LO to a portion of the land occupied by the building. The supervening awareness does not prejudice its right to claim the status of a builder in good faith. (Tecnogas Phil. Manufacturing Corp. vs CA)

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The BPS in good faith should not pay rentals to the LO spouses. The spouses, having opted to appropriate the improvement on the lot, have to reimburse the BPS of the cost of construction of the building (in accordance with Art 546). The BPS has the right to retain the improvements until he is reimbursed. An implied tenancy or possession in fact is created pending the payment of the corresponding indemnity. (Pecson v CA)

Good faith consists in the belief of the builder

that the land he is building on is his and he is ignorant of any defect or flaw in his title. And as good faith is presumed, the LO has the burden of proving bad faith on the part of the BPS. (Pleasantville Dev’t. Corp. v CA) Art 448 applies only in cases where a person constructs a building on the land of another in good or bad faith, as the case may be. It does not apply to a case where a person constructs a building on his own land (like in this case), for then there can be no question as to good or bad faith of the builder. (Coleongco v Regalado) The rule of Art. 453 of the Civil Code invoked by the BPS can not be applied to the instant case for the reason that the improvements in question were made on the premises only after the LO had tried to recover the land in question from him, and even during the pendency of this action in the court below. After the BPS had refused to restore the land to the LO, to the

extent that the latter even had to resort to the present action to recover his property, the BPS could no longer be regarded as having impliedly assented or conformed to the improvements thereafter made by appellant on the premises. (Felices v. Iriola) ACCESSION NATURAL

(2) Accession natural – may be in the form of either:

(i) Alluvium – the accretion which lands adjoining the banks or rivers, lakes, creeks or torrents gradually receive from the

Requisites of alluvium:

(a) The accretion must be gradual

(b) The cause of the accretion must be the current of the water

(c) The land where the accretion takes place must be adjacent to the banks of the rivers

(d) Alluvium must be natural

*riparian owner – owner of the land fronting such riverbanks

The alluvium, by mandate of Art. 457, is automatically owned by the riparian owner from the moment the soil deposit can be seen but is not automatically registered property, hence, subject to acquisition through prescription by 3rd persons. (Grande vs CA)

(ii) Avulsion – the accretion which takes place whenever the current of a river, lake, creek or torrent segregates from an estate on its bank a known portion

of land and transfers it to another estate (Art. 459)

Distinguished from Alluvium

Alluvium Avulsion

1. Deposit of soil is gradual

2. Deposit of the soil belongs to the owner of the property where the same was deposited

3. The soil cannot be identified

1. Deposit of soil is sudden or abrupt

2. The owner of the property from which a part was detached retains the ownership thereof (2 yrs)

3. The detached portion can be identified

Requisites of Avulsion

(a) The segregation and transfer must be

caused by the current of a river, creek or torrent.

(b) The segregation and transfer must be sudden or abrupt

(c) The portion of land transported must be known and identifiable

Rights of the riparian owner

• Removal within 2 years • The former owner preserves his ownership

of the segregated portion provided he removes (not merely claims) the same within the period of 2 yrs.

• Art. 460 applies only to uprooted trees. If a known portion of land with trees standing thereon is carried away by the current to another land, Art. 459 governs.

(iii) Change of river beds

– that which takes place when a river bed is abandoned through the natural change in the course of the waters (Art. 461)

Requisites for the application of Art. 461:

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(a) There must be a change in the natural course of the waters of the river.

(b) The change must be abrupt or sudden.

Right of owner of land occupied by new river course

1. Right to old bed ipso facto in proportion to area lost

2. Owner of adjoining land to old bed shall have right to acquire the same by paying its value – value not to exceed

the value of area occupied by new bed 3. Formation of island in non-navigable

river a) owner of margin nearest to islands

formed – if nearest to it b) owner of both margins – if island is

in the middle (divided into halves longitudinally)

(iv) Formation of islands either on the seas within the jurisdiction of the Philippines.

On lakes, and on navigable or floatable rivers (Art. 464) or non-navigable and non-

floatable rivers (Art. 465).

(1) Ownership of islands formed through alluvion

(a) If formed:

(a.1) on the seas within Phil. jurisdiction

(a.2) on lakes, and

(a.3) on navigable or floatable waters, the island belongs to the State

(b) If formed in non-navigable and non-floatable rivers:

(b.1) it belongs to the nearest riparian owner or owner of the margin or bank nearest to it as he is considered in the best position to cultivate and develop the island

(b.2) it is divided longitudinally in halves, if it is in the middle of the river

(c) Concept of navigable river

• A navigable river is one which forms in its ordinary condition by itself or by uniting with other waters a continuous highway over with other waters a continuous highway over which commerce is or may be carried on.

Test: A river is navigable if it is used or susceptible of being used, in its ordinary condition, as a highway of commerce, that is,

for trade and travel in the usual and ordinary modes.

Accession Continua-Movable property:

(1) Adjunction or Conjunction – that which takes place whenever movable things belonging to different owners are united in such a way that they cannot be separated without injury, thereby forming a single object (Art. 466)

Kinds of adjunction:

(a) inclusio or engraftment

(b) soldadura or attachment

ferruminatio – objects are of the same metal

plumbatura – objects are diff. metals

(c) tejido or weaving

(d) pintura or painting

(e) escritura or writing

Ownership of new object formed by adjunction

(a) If the union took place without bad faith, the owner of the principal thing acquires the accessory, with the obligation to indemnify the former owner of the accessory for its value in its uncontroverted state.

(b) If the union took place in bad faith, Art. 470 applies.

TEST to determine principal in adjunction:

• In order of application, the principal is that: (a) To which the other (accessory) has

seen united as an ornament or for its use or perfection (Art. 467)- INTENT

(b) Of greater value, if they are unequal values-VALUE

(c) Of greater volume, if they are of an equal value (Art. 468)-VOLUME

(d) That of greater merits taking into consideration all the pertinent legal provision applicable as well as the comparative, merits, utility and volume of their respective things.

Where adjunction involves 3 or more things

• Art. 466 should be applied in an equitable manner. The principal should be determined and distinguished from the

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others which would be considered the accessories.

Rights: 1. If both are in good faith – owner of

principal acquired the accessory with indemnification

2. If both are in good faith – may separate them if no injury will be caused; if value of accessory is greater than principal, owner of accessory may

demand separation even if damages will be caused to the principal (expenses to be borne by one who caused the conjunction)

3. If owner of accessory is in bad faith –

owner of accessory with damages to principal

4. If owner of principal is in bad faith – owner of accessory shall have option of principal paying value of accessory or removal of accessory despite destruction of principal

5. Owner of accessory or principal has right to indemnity when thing adjuncts w/o his consent – may demand that a thing equal is kind, value and price

(2) Specification – that which takes place whenever a person imparts a new form to materials belonging to another person (Art. 474).

Rights 1. If person who made the transformation

is in good faith - he shall appropriate the thing transformed as his own with indemnity to owner of material for its value

2. If material is more precious than transformed thing – owner of material may appropriate the new thing to himself after indemnity paid to labor or demand indemnity for materials

3. If person who made the transformation is in bad faith, owner of material shall appropriate the work to himself w/o paying maker or demand indemnity for value of materials & damages

4. If transformed thing is more valuable than material, owner of material cannot appropriate

(3) Commixtion or confusion – that which takes place whenever there is a mixture of things solid or liquid belonging to different owners, the mixture of solids being called commixtion, while

that of liquids, confusion (Art. 472).

Rights

1. If both owners are in good faith – Each owner shall acquire a right proportional

to the part belonging to him (vis-a-vis the value of the things mixed or confused)

2. If one owner is in bad faith – he shall lose the thing belonging to him plus indemnity for damages caused to owner of other thing mixed with his thing

3. If both in bad faith no cause of action against each other

QUIETING OF TITLE

• An action to quiet title to property or to

remove a cloud thereon is a remedy or form of proceeding originating in equity jurisprudence, which has for its purpose an adjudication that a claim of title or an interest in property, adverse to that of complainant, is invalid, so that the complainant and those claiming under him may be forever free from any danger of the hostile claim.

Requisites

(1) There is a cloud on title to real property or any interest to real property (Art. 476)

(2) Plaintiff has legal or equitable title to or interest in the subject/real property.

(3) Instrument, record, claim, encumbrance or proceeding must be valid and binding on its face but in truth and in fact invalid, ineffective, voidable or unenforceable; contract upon which defendant relies has been extinguished or terminated, or has prescribed (4) Plaintiff must return benefits received

from the defendant. Differences between action to quiet title,

action to remove a cloud, and action to prevent a cloud

• An action to quiet title, strictly considered,

is substantially an action to put an end to vexatious litigation in respect to the property involved.

• An action to remove a cloud is intended to procure the cancellation, delivery of,

release of an instrument, encumbrance, or claim constituting a claim on plaintiff’s title, and which may be used to injure or vex him in the enjoyment of his title.

• In an action to quiet title, the plaintiff asserts his own estate and declares generally that the defendant claims some estate in the land, without defining it, and avers that the claim is without foundation.

• In a suit to remove a cloud, plaintiff not only declares his own title, but also avers the source and nature of defendant’s claim, points out its defect, and prays that it be declared void.

• In an action to prevent a cloud, relief is granted if the threatened or anticipated

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cloud is one which if it existed, would be removed by suit to quiet title.

Prescription of action—Imprescriptible if

plaintiff is in possession; if not, prescribes within period for filing accion publiciana, accion reivindicatoria.

Notes: An action for reconveyance:

a) Prescribes in 10 years if the plaintiff is NOT in possession of the property and

if the action for reconveyance is based on an implied or constructive trust. The point of reference is the date of registration of the deed or the date of the issuance of the certificate of title over the property.

b) Is IMPRESCRIPTIBLE if the person claiming to be an owner is in actual possession of the property. Here, the right to seek reconveyance in effect seeks to quiet title. (Olviga v. CA)

It is not necessary that the vendee has an absolute title. An equitable title is sufficient to clothe him with personality to bring an action to quiet title. (Pingol v. CA)

What plaintiff imagined as clouds cast on his title were PR’s alleged acts of physical intrusion and not. an instrument, record, claim, encumbrance or proceeding which constitutes or casts a cloud, doubt, question or shadow upon the owner’s title or interest in real property. Clearly, the acts alleged may be considered grounds for an action for forcible entry but definitely not one for quieting of title. (Titong v. CA)

RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING Liability for damages:

1. collapse – engineer, architect or contractor

2. collapse resulting from total or partial damage; no repair made – owner; state may compel him to demolish or make necessary work to prevent if from falling

3. if no action – done by government at expense of owner

CO-OWNERSHIP

CO-OWNERSHIP—right to common dominion which two or more persons have in a spiritual part (or ideal portion) or a thing which is not materially or physically divided. Characteristics of Co-ownership (1) plurality of owners, but only one real right

of ownership

(2) unity of material of the object of ownership (3) recognition of ideal shares or aliquot (4) absolute control of each co-owner over his

ideal share, not over specific portions of the property

(5) There is a mutual respect among co-owners in regard to the use, enjoyment, and preservation of the property owned in common.

Differences between co-ownership and

joint tenancy

Co-ownership Joint Ownership

Tenancy in Common, Ownership in Common, Co-dominium

Joint tenancy, Tenancy in common, Notion of “all-for one, one-for-all”

Civil law origin Common Law/ Anglo-American origin

Each co-owner owner of his ideal share

Each joint owner, the surviving joint owners are subrogated in his rights by accretion

Each co-owner may dispose of his

undivided share without the other’s consent.

Joint owner must obtain the consent of

all the rest to dispose of his share.

In case there is a co-owner who is a minor, minority as a defense against prescription is exclusive to him.

The defense of one joint owner can be used as a defense by all joint owners.

Differences between partnership and co-ownership

Ordinary Partnership

Co-ownership

With legal/juridical

personality distinct from its members

No legal personality

distinct from its members

Created only by agreement or contract to that effect

created by “LAW FOCUS” [Law, Fortuitous Event, Occupancy, Contract, Succession]

Purpose is to obtain profit

Purpose is collective enjoyment and to maintain the unity and preservation of the things owned in common.

No term set limit set by law

As a rule, an agreement to keep the ownership for more than 10 years is void.

Creditors of individual partners cannot attach and sell on execution the shares of partners in the partnership

Creditors of a co-owner can attach his shares in the co-owners and sold on execution

Can be extinguished by the death or incapacity of one

Death or incapacity of a co-owner does not affect existence of a

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party co-ownership

There is mutual representation of the parties

A special authority is needed for such representation.

A partner cannot transfer his rights to a

3rd person without the consent of the others

A co-owner can freely dispose of his share

without need to ask the consent of the other co-owners.

Distribution of profits can be stipulated upon (profit-sharing)

Profits of a co-owner depend on his proportionate share; profit-sharing is invariable (Art. 485) not subject to stipulation

Sources of co-ownership (1) Law

(a) Cohabitation (i) Between man and woman

capacitated to marry each other. (Art 147, FC)

(ii) Between man and woman not capacitated to marry each other

(Art. 148, FC)

(b) Absolute community property (Art. 90, FC)

(c) two or more persons purchase property and by common consent legal title is taken in the name of one of them for the benefit of all, an implied trust is created in favor of the others in proportion to each to interest of each. (Art. 1452)

(d) Succession

(i) Intestate succession—w here there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debt of the deceased (1078)

(ii) Testate—if property is given to two or more heirs by the testator

An instance is when a person A dies intestate and the properties are

left undivided to several heirs, such heirs are co-owners of the inheritance. If one of the heirs dies, his heirs will in turn be co-owners of the surviving heirs of A.

Redemption done by one of the co-owners/heirs will benefit his other co-owner heirs despite the fact that they did not contribute to the redemption money.

(e) Donation • donation to several persons jointly, it is

understood to be in equal shares • no rights of accretion unless the donor

otherwise provides

• but if donation is made to husband and wife jointly, there shall be a right of accretion, unless contrary so provide.

(f) Chance – commixtion in good faith

(Art. 472, NCC) (g) Hidden treasure – co-ownership

between finder and owner (h) Easement of a party wall (i) Occupation – Harvesting and fishing

• The ambergris caught by the hunters

was undivided common property of the plaintiffs and one of the defendants. This common ownership was acquired by occupancy. The action for recovery pertaining to each co-owner, derived from the right of ownership inherent in the co-ownership can be exercised not only against strangers, but against the co-owners themselves when the latter performs with respect to the thing held in common acts for their exclusive benefit, or for exclusive ownership, or which are prejudicial to, and in violation of the right of the community. (Punsalan et al. v. Boon Liat et al.)

(j) Condominium law Sec. 6(c) of RA 4726 – unless otherwise provided, common areas are held in common by the holders of the units in equal shares, one for each unit.

(2) Contract (a) Two or more persons agree to create a

co-ownership—maximum of ten years (494, 2

nd par), extendable by a new agreement. Example: When two parties agree to purchase a piece of land, each one paying a part of the purchase price, on the condition that they are to divide the land equally between them. Parties may also become co-owners of a particular business when no partnership having a distinct juridical existence is formed between them.

(b) Universal Partnership

(i) Of all present properties (Art. 1778-1779, NCC)

(ii) Of profits (Art. 1780, NCC)

(c) Associations and Societies, whose articles are kept secret wherein anyone of the members may contact in his own name with third persons (no juridical

personality) Rights of each co-owner as to the thing owned in common. USE the COP’s LP (1)Use thing; (2) Share benefits (3)Ejectment suit

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(4)Compel to contribute (5)Object to alteration; (6)Protect against prejudice (7)Exercise legal redemption; (8)ask for partition] (1) To use the thing according to its

purpose intended (may be altered by agreement, express or implied; provided: (a) without injury or prejudice to interest

of co-ownership; and (b) without preventing the use of other co-

owners (Art. 486) • Any act against the collective interest s an

act against ownership and the remedies available to owners in general may by used by the co-owners.

Each co-owner of realty held pro-indiviso exercises his rights over the whole property may use and enjoy the same with no other limitation than that he shall not injure the interests of his co-owners, for the reason that, until a division be made, the respective part of each holder can not be determined and every one of the co-owners exercises together with his other co-participants, joint ownership over the pro- indiviso property, in addition to his use and enjoyment of the same. (Pardell v. Bartolome) (2) To share in the benefits in proportion

to his interest, provided the charges are borne by each in the same

proportion (Art. 485)

A contrary stipulation is void. Portions are presumed equal unless contrary is proved. Accretion added to any portion of land co-owned becomes part of the property in co-ownership and should be divided according to each co-owners proportionate share. (3) Any one of the co-owner may bring an

action in ejectment (Art. 487) • A co-owner ma bring such action without

necessity of bringin all the other co-owners as co-plaintiffs because the suit is deemed to be for the benefit of all.

• Action will not prosper if the action is for the benefit of himself only and not for the co-ownership.

• When the action is brought by one co-owner for the benefit of all, a favorable decision will benefit everyone but an adverse decision will not affect them if they are not parties in the case or they did not give their consent to the action.

(4) To compel other co-owner to

contribute to expenses for preservation of the thing or right owned in common and to taxes (Art. 488)

• Co-owners’ option not to contribute by

waiving his undivided interest equal to

amount of contribution (except if waiver is prejudicial to co-ownership)

Necessary expenses • taxes and expenses for the preservation of

the thing which is not made would endanger the existence of the thing or reduce its value or productivity

• Does not include those that merely produce benefits for the owner, or merely for luxury, embellishment or pleasure.

Useful expenses • they increase the income of the thing

owned in common for the benefit of all the co-owners.

• not covered as one of them cannot incur such expenses without the consent of the others and then charge them to pay their shares later. (a) Remedy against defaulting co-owner—

action to compel him to contribute such share. He cannot be compelled to renounce his share as such option is at his own discretion.

• Co-owner has option not to contribute by

waiving his undivided interest equal to amount of contribution (unless waiver is prejudicial to co-ownership)

• Requisites before repairs for preservation, embellishment, or improvements may be made a) if practicable, notice to co-owners

b) majority decision, as provided under Article 492

• A co-owner alone can advance expenses for preservation of the property even without prior consent of others; he is entitled to be reimbursed for the amount he spent for necessary expenses.

• Will of one of the co-owners is sufficient authority to undertake expenses for preservation. He can proceed with the repairs for preservation despite opposition of the others.

• Consent of majority required only in case where the expenses are for the improvement or embellishment of the thing or for administration and better enjoyment of the thing.

• Consent of all is needed only in acts of ownership.

• Effect of failure to notify co-owners: (a) Failure to give notice even if it was

practicable to do so does not deprive the co-owner his right to be reimbursed the proportionate share of the other in

the expenses. (b) The effect of such omission is that he is

given the burden of proving the necessity of such repairs and the reasonableness of the expense.

(c) He will not be fully reimbursed if the others can prove that had he notified them, they could have hired the

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services of another contractor who would charge less than the people whom he contracted or that they know of a store that sells the needed material at a cheaper price. The difference will be borne by him.

(5) To oppose any act or alteration; remedy of other co-owner in case of alteration. • Alteration

The act by virtue of which a co-owner - changes the thing from the state in

which the others believe it should remain or

- Withdraws it form the use to which they are desired to be intended in opposition to the common agreement, if there is any, or in absence of a common agreement, to the tacit agreement of all the co-owners, and violating their will

• Acts of alteration requires the consent of

ALL the co-owners if it changes the essence or nature of the thing (present article refers to this) because it is an act of ownership.

• Consent of all is needed in order to impose a voluntary easement on the property they co-own.

• Acts of alteration that does not change the essence or nature of the thing requires only the agreement of the majority because it is merely an act of administration.

- but if withholding of consent by any one of the co-owners is clearly prejudicial to the common interest, courts may afford adequate relief (Art. 491, CC)

• Administration and better enjoyment – acts

or decisions for the common benefit of all and not for the benefit of only one or some of them.

• Characteristics: (a) they refer to the enjoyment and

preservation of the thing (b) they have transitory effects

Acts of Alteration/Acts of

Ownership

Acts of Administration

• Relates to the use, substance or form

of the thing • Have a more

permanent result • Consent of all is

necessary • Contrary to the

co-ownership agreement

• Also for the better enjoyment of the

property • Effects are of

transitory character • Consent of the

financial majority will be binding

• Does not give rise to a real right over the thing owned in common.

Effects of acts of alteration and remedies of non-consenting co-owner :

(a) Co-owner who made alterations may lose whatever he has spent as he will not be reimbursed

(b) He may be ordered to demolish or remove the alteration at his expense

(c) He will be liable for damages and other losses

(d) Co-ownership will benefit from the alteration if other co-owners decide to contribute to the expenses by

reimbursing him (ratification) (e) If a house is built in a common lot, the

co-owners are entitled to the proportionate share of the rent.

Q: Can a mere majority of the co-owners lease

real property for any length of time? A: Old Civil Code rule:

• Lease for not more than 6 years is just an act of administration.

• Lease for more than 6 years is an act of ownership.

New Civil Code rule: • Lease becomes an act of ownership and

ceases to be an act of administration if: (1) It is recorded in the Registry o

Property; and (2) It is for more than 1 year

• Registration makes the lease binding on third persons (Art. 1648, NCC) Special powers is the criterion for determining whether the act is legally one of strict

ownership. (6) To protect against acts of majority

which are prejudicial to minority (Art. 492, Par. 3)

• Who may manage property? a) The co-owners themselves

Court cannot appoint an administrator to manage a property co-owned when the co-owners want to handle the management. In this management, the majority of the of interest control and their decisions are binding upon the minority. Majority may only proceed to act without notice to the minority if the circumstances warrant urgency.

b) An administrator who may or may not be a co-owner delegated by the co-owners An administrator cannot, without the unanimous consent of all the co-owners, compromise on, donate, cede, alienate, mortgage, or encumber in any manner the common property.

• The majority is not the majority in number

but rather pertains to the majority in interest or the financial majority. The majority required should be construed to be an absolute majority or more than one-half of the value of the thing.

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• When are acts seriously prejudicial? • So serious and affects the interest

of the co-owners in the community • Such that will cause injuries

enough to justify the intervention of the court

Example: (1) When the resolution calls for a

• substantial change or alteration of the common property

• or of the use to which it has been dedicated by agreement or by its

nature. (2) When the resolution

• goes beyond the limits of mere administration, or

• invades the proprietary rights of the co-owners, in violation of Art. 491 (prohibiting against acts of alteration)

(3) When the majority leases, loans, or other contracts without security, exposing the thing to serious danger to the prejudice of the other co-owners.

(4) When the majority refuse to dismiss an administrator who is guilty of fraud or negligence in his management, or does not have the respectability, aptitude, and solvency required of persons holding such position.

(5) When resolution, if carried out, would cause serious injury to the thing itself, such as an agreement not to borrow money under reasonable terms when it is necessary for urgent repairs for preservation, or for the payment of taxes.

Remedies of the minority If the acts of the majority prejudice the minority, the latter may ask for injunction or at worse, a partition.

(7) To exercise legal redemption (Art.

1620, 1623) • The right of redemption of co-owners

excludes that of adjoining owners. • The period of redemption starts to run from

the WRITTEN notification. However, there is an exceptional case- when there is actual knowledge (Alonzo v. IAC)

Q: Can redemption money be made equal or

less than what was paid by third persons? A: Yes, it can be lower if the price of sale is

grossly excessive, such as when the co-owner didn’t want other co-owners to redeem. However, generally it is of the equal amount.

Cases: Redemption of the property by a co-owner does not vest in him sole ownership over said property but will inure to the benefit of all co-owners. Redemption is not a mode of termination of relationship. (Mariano v CA)

By the very nature of the right of "legal redemption", a co-owner's right to redeem is invoked only after the shares of the other co-owners are sold to a third party or stranger to the co-ownership. But in the case at bar, at the time petitioners filed their complaint for injunction and damages against private respondents, no sale of the latter's pro-indiviso shares to a third party had yet been made. The law does not prohibit a co-owner from selling, alienating or mortgaging his ideal share

in the property held in common. The law merely provides that the alienation or mortgage shall be limited only to the portion of the property which may be allotted to him upon termination of the co-ownership and, as earlier discussed, that the remaining co-owners have the right to redeem, within a specified period, the shares which may have been sold to the third party. [Articles 1620 and 1623] (Reyes vs. Judge Concepcion) Halili has no right to invoke legal redemption under Art 1621 since such article presupposes that the land sought to be redeemed is rural. Under Art. 1621, both lands—that sought to be redeemed and the adjacent lot belonging to the person exercising the right of redemption—must be rural. If one or both are urban, the right cannot be invoked. (Halili v. CA) Art. 1623 requires that the written notification should come from the vendor or prospective vendor, not from any other person. It is the

notification from the seller, which can remove all doubts as to the fact of the sale, its perfection, and its validity, for in a contract of sale, the seller is in the best position to confirm whether consent to the essential obligation of selling the property and transferring ownership thereof to the vendee has been given. (Francisco v. Boiser) The written notice of sale is mandatory for the tolling of the 30-day redemption period. Notwithstanding actual knowledge of a co-owner, the latter is still entitled to a written notice from the selling co-owner in order to remove all uncertainties about the sale, its terms and conditions, as well as its efficacy and status. (Verdad v CA) The validity of a title depends on the buyer’s knowledge, actual or constructive, of a prior sale. While there is no direct proof that the second vendees actually knew of the sale to the first vendees, they are deemed to have constructive knowledge thereof by virtue of their relationship to the vendors.

A third person, within the meaning of Art. 1620 of the Civil Code (on the right of legal redemption of a co-owner) is anyone who is not a co-owner. Art. 1623, requiring the vendor of the property to give a written notice of sale to the other co-owners, had been rendered inutile by the fact that the first vendees took

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possession of the property immediately after the execution of the deed of sale in their favor and continue to possess the same. Since the fact of possession by the first vendees had not been questioned by any of the co-owners, the latter may be deemed to have knowledge of the sale. (Pilapil v CA) (8) To ask for partition (Art. 494) • A co-owner can always ask for a partition.

There is no prescriptive period. Exceptions:

(i) when there is a stipulation against it (not beyond 10 years)

(ii) when condition of indivision is imposed by transferor (donor or testator) not exceed 20 years (Art. 494)

(iii) when legal nature of community prevents partition (e.g. party wall)

(iv) when partition is generally prohibited by law

(v) when partition would render the thing unserviceable, or the thing in common is essentially indivisible - no physical partition but thing

maybe sold and co-owners shall divide the proceeds (495, 498)

(vi) acquisitive prescription has set in facor of a stranger to co-ownership or in favor of co-owner.

Either co-owner may demand the sale of the house and lot at any time and the other cannot object to such demand. Thereafter the proceeds of the sale shall be divided equally according to

their respective interests. S, being a co-owner, has the right use the house and lot without paying any compensation to petitioner, as he may use the property owned in common as long as it is in accordance with the purpose for which it is intended and in a manner not injurious to the interest of the co-owners. (Aguilar v. CA)

Implications of co-owners’ right over his

ideal share

• No individual or co-owner can claim title to any definite part or portion of the thing co-owned.

• All the co-owner has is an ideal abstract, quota or proportionate share in the entire land or thing.

• All that he can sell or freely dispose is his undivided interest but he cannot sell or alienate a concrete, specific or definite part of the thing owned in common because his right over the thing is represented by a quota or ideal

portion without any physical adjudication.

(1) Co-owner has the right

(a) To share in the fruits and benefits (b) To alienate, mortgage, or encumber

and dispose off his ideal share subject

to other co-owner right of legal redemption.

(c) To substitute another person in the enjoyment of the thing. (Art. 493)

(d) To renounce part of his interest to reimburse necessary expenses incurred by another co-owner (Art. 488)

(2) Effect of transaction by each co-owner

(a) Limited to his share in the partition (b) Transferee does not acquire any

specific portion of the whole property

until partition (c) Creditors of co-owners may intervene

in the partition to attack the same if prejudicial (Art. 499), except that creditors cannot ask for rescission even if not notified in the absence of fraud (Art. 497) ask for rescission even if notified.

Cases: Unless the partition is effected, each heir cannot claim ownership over the definite portion and cannot dispose. Upon death of a person, each of his heirs becomes the undivided owner of the whole estate. He cannot alienate a specific part of the thing in common to the exclusion of other co-owners because his right over the thing is represented by an ideal portion. Co-owner cannot adjudicate to himself a definite portion owned in common until partition by agreement or by judicial decree. Before partition, co-heir can only sell his successional rights. (Carvajal v CA)

After his wife’s death, the husband became entitled to ½ of the entire property, with only ½ belonging to the heirs. They hold the property as co-owners. (Pamplona v Moreto) Art 493 of the NCC allows the alienation of the co-owner of his part in the co-ownership. The effect of such alienation or mortgage shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership In short, a co-owner can enter into a contract of lease insofar as to his interest. Therefore, he can also cancel such lease without the consent from the other co-owner. (Castro v. Atienza) Difference of Co-ownership vs. Conjugal Partnership

Co-ownership Conjugal Partnership

• May be created by an ordinary contract

• Sex of co-owners is immaterial (kaya kahit bading…)

• There may be 2 or more co-owners

• Profits are proportional to

• Created only by reason of marriage

• Parties thereto are on male and one female

• There are only 2 conjugal owners

• Profits are divided equally, unless there is a contrary stipulation in a

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respective interests

• Death of a co-owner does not dissolve the co-ownership

• Generally co-owners administer

• Co-ownership is discouraged by

law

marriage settlement

• Death of a spouse dissolves the CPG

• Encourage by law for family solidarity.

Special Rules on ownership of different stories of a house as differentiated from the provisions in the Condominium Law (Act No. 4726)

Concept of condominium • Exclusive interest in units plus undivided

interest in common areas. • Partly co-ownership, partly under individual

separate ownership • Each unit belongs separately to one or

more persons • The land and the common areas are of

common use by the different owners and are under co-ownership either as contemplated by the Civil Code or through a corporation.

• Not governed by co-ownership as provided

for in the Civil Code. • External surfaces are common areas • Beams and posts are common areas • Easement, unless the master deed says

otherwise, is an exclusive easement. • Interest in the common areas will depend

on interest in the condo • Important documents in buying a condo

unit (i) deed of sale (ii) enabling or master deed (iii) declaration of restrictions

Sec. 9 The owner of a project shall, prior to the conveyance of any condominium therein, register a declaration of restrictions relating to such project, which restrictions shall constitute

a lien upon each condominium in the project and shall insure to and bind all condominium owners in the project. Such liens, unless otherwise provided, may be enforced by any condominium owner in the project or by the management body of such project. The Register of Deeds shall enter and annotate the declaration of restrictions upon the certificate of title covering the land included within the project, if the land is patented or register under the land included within the project, if the land is patented or registered under the Land Registration or Cadastral Acts.

• Method of taxation

Sec. 25. Whenever real property has been divided into condominiums, each condominium separately owned shall be separately assessed, for purposes of real property taxation and other tax purposes to the owners thereof and the tax on each such condominium shall constitute a

lien solely thereon.

• Pzrtition of Common Areas

Sec.7. Except as provided in the following section, the common areas shall remain undivided, and there shall be no judicial partition thereof.

(a) Who manages the condominium?

(i) condominium corporation (preferred by law) – co-terminous with the existence of the condominium

(ii) co-ownership (iii) association of owners

Rights and Obligations of Condominium

owner What are the incidents of a condominium

grant? (a) The boundary of the unit grant

(i) the interior surfaces of the perimeter walls, floors, ceilings, windows, and doors

(ii) those which are not part of the unit bearing walls, columns, floors, roofs, foundations, and other common structural elements of the building; lobbies, stairways,

hallways, and other areas of common use, elevator equipment and shafts, central heating, central refrigeration, and central air-conditioning equipment, reservoirs, tanks, pumps, and other central services and faicilities, pipes, ducts, flues, chutes, conduits, wires and other utility installations, wherever located, except the outlets thereof when located within the unit.

(b) Exclusive easement for the use of the air space encompassed by the boundaries of th unit

(i) as it exists at any particular time (ii) as the unit may lawfully be altered

or reconstructed from time to time (iii) such easement shall be

automatically terminated in any air space upon destruction of the units to render it untenable

(c) Unless otherwise provided, the common areas are held in common by

the holders of units, in equal shares, one for each unit

(d) a non-exclusive easement for ingress, egress, and support through the common areas are subject to such easements

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(e) Each condominium unit owner shall have the exclusive right to paint, repaint, tile, wax, paper, or otherwise refinish and decorate the inner surfaces of the walls, ceilings, floors, windows, and doors, bounding his own unit

(f) Each condominium owner shall have the exclusive right to mortgage, pledge, encumber his condominium and to have the same appraised independently of the other condominiums but any obligation

incurred by such condominium owner is personal to him.

(g) Each condominium owner has also the absolute right to sell or dispose of his condominium unless the master deed contains a requirement that the property be first offered to the condominium owners within a reasonable period of time before the same is offered to outside parties.

Case

Section 5 of the Condominium Act expressly provides that the shareholding in the Condominium Corporation will be conveyed only in a proper case. Not every purchaser of a condominium unit is a shareholder of the condominium corporation. The Condominium Act leaves to the Master Deed the determination of when the shareholding will be transferred to the purchaser of a unit, as clearly provided in the deed in this case. Ownership of

a unit, therefore, is a condition sine qua non to being a shareholder in the condominium corporation By necessary implication, the "separate interest" in a condominium, which entitles the holder to become automatically a share holder in the condominium corporation, as provided in Section 2 of the Condominium Act, can be no other than ownership of a unit. The private respondents, consequently, who have not fully paid the purchase price of their units and are not owners of their units nor members or shareholders of the petitioner condominium corporation. (Sunset View Condominium v Judge Campos) Extinguishment of Co-Ownership (1) Total destruction of the thing (2) Merger of all the interest in one person (3) Acquisitive prescription

(a) By a third person (b) By one co-owner against the other co-

owners

Requisites: (i) Unequivocal acts of repudiation of

the rights of the other co-owners (acts amounting to ouster of other co-owners)

(ii) Open and adverse possession, not mere silent possession for the

required period of extraordinary acquisitive prescription.

(iii) Presumption is that possession of a co-owner is not adverse.

(4) Partition or division • A division between two or more persons of

real or personal property which they own as co-partners, joins tenants or tenants in common, effected by the setting apart of such interests so that they may enjoy and possess it in severallity.

(a) Right to ask for partition at any time

except: (i) When there is a stipulation against it.

(must not be over 10 years) (ii) When condition of indivision is imposed

by transferor (donor or testator) must not exceed 20 years – Art. 494

(iii) When the legal nature of community prevents partition. (e.g., party wall)

(iv) When partition is generally prohibited by law e.g. ACP

(v) When partition would render the thing unserviceable but the thing may be sold and the co-owners divide the proceeds (Art. 494)

• Action for partition will fail if acquisitive

prescription has set in. (b) Effect of partition

• Partition shall not prejudice third persons

who do not intervene in the partition • After partition, there should be mutual

accounting of benefits, reimbursements, payment of damages due to negligence or fraud, liability for defects of title and quality of portion assigned to each

• Part allotted to a co-owner at partition will be deemed to be possessed by such co-owner from the time the co-ownership commenced.

• Heir is exclusive owner of property adjudicated to him.

• Co-owners reciprocally bound to each other for warranty of title and quality of part given to each (hidden defect) after partition.

• Under Art. 1093, obligation of warranty is proportionate to respective hereditary shares; insolvency of one makes the others liable subject to reimbursement (joint liability).

(c) Right of Creditors of individual Co-owners

Art. 497

• All creditors, whether secured or privileged, and those of any category under title of alienation, exchange, donation, assignment, or other obligation of a real or personal nature,

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must be considered to intervene in the partition of the common property.

• They must have become creditors during the co-ownership

• Co-owner debtors have the duty to notify the creditors of the partition

• Absence of notice makes partition not binding on them.

• They can contest such partition if they formulate a formal opposition thereto. Assignee – a transferee of a part of the interest of the co-owner because if a

sale or assignment is total, the assignee or the buyer should have been subrogated in the place of the vendor or assignor, who should be excluded from the co-ownership, and the assignee or the buyer will intervene in his own right in partition.

(d) Procedure for Partition (Rule 69, Rules

of Court) (1) Partition may be made:

(a) Orally • Valid and enforceable among

the parties. • Statute of frauds does not

operate for partition is not a conveyance of property but merely a segregation and designation of that part of the property which belongs to the co-owners.

(b) In writing • Court will just confirm such

written agreement.

(2) Rules of Court does not preclude amicable settlement between parties.

(3) Two principal issues in an action

for partition: (a) plaintiff is indeed a co-owner

of the property (b) how the property is to be

divided between plaintiff and defendants.

• If property is found to be incapable of being divided without great prejudice to the interest of each party, the court may order such property be assigned to one co-owner subject to the condition that he will pay the other co-owners of the value of their interests as deemed by the commissioners.

• The sale may be made privately or publicly and third persons may

become purchasers.

POSSESSION

Definition and Concept

(1) Possession is the holding of a thing of the enjoyment (exercise) of a right, whether by material occupation (de facto possession) or by the fact that the thing or the right is subjected to the action of our will.

(2) It is a real right independent of and apart from ownership.

Essential requisites of possession (1) Holding or control of a thing or right

(corpus) consists of either: (a) the material or physical possession

(b) subject action of our will- exercise of a right (c) constructive possession

• doctrine of constructive possession applies

when the possession is under title calling for the whole, i.e., possession of a part is possession of the whole.

• Constructive possession a) tradicion brevi manu (one who possess

a thing short of title of owner – lease ); b) tradicion constitutum possesorium

(owner alienates thing but continues to possess – depositary, pledgee, tenant)

(2) Intention to possess (animus possidendi) • it is a state of mind whereby the possessor

intends to exercise and does exercise a right of possession, whether or not such right is legal

• intention may be inferred from the fact that the thing in question is under the power and control of the possessor

• may be rebutted by contrary evidence, e.g., stolen property is placed in a man’s house without his knowledge.

Cases: The occupancy of a part of the land with an instrument giving color of title is sufficient to give title to the entire tract of land. The general rule is that the possession and cultivation of a portion of a tract of land under a claim of ownership of all is a constructive possession of all, IF the remainder is not in the adverse possession of another. Possession in the eyes of the law does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession. (Ramos v. Director of Lands) The rule on constructive possession does not apply when the major portion of the disputed property has been in the adverse possession of homesteaders and their heirs. It is still part of the public domain until the patents are issued. (Director v. CA)

Degrees of holding of possession (1) Mere holding or possession without title

whatsoever and in violation of the right of the owner.

• applies to both movables and immovables

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• both the possessor and the public know that the possession is wrongful

• e.g., possession of a thief or a usurper of the land

• there can be no acquisitive prescription of movables under the NCC (Art. 1133)

(2) Possession with juridical title but not that of ownership. • peaceably acquired • this will never ripen interesting full

ownership as long as there is no

repudiation of concept under which the property is held, i.e., from holder to that of owner (if such repudiation is made known to the owner, then extraordinary prescription of 30 yrs will apply)

• e.g., possession by tenant, depositary, agent, bailee, trustee, lessee, antichretic creditor

• even actual owner may be prevented by law from taking possession

• a depositary bank is not a possessor in this degree, since a deposit is actually a loan to the bank

(3) Possession with just title or title sufficient

to transfer ownership, but not from the true owner

• title— deed of sale or contract of sale • possession of a vendee from vendor who

pretends to be the owner, i.e., innocent buyer of stolen goods

• good faith of buyer = just title

• if in good faith, extraordinary prescription of 30 years will apply

• this degree of possession ripens interesting full ownership by lapse of time

(4) Possession with just title from the true owner • possession springs from ownership • the delivery of possession transfers

wnership and strictly speaking, it is the jus possidendi that is transferred (right to possess which is an incident of ownership)

Cases of possession (1) Possession for oneself, or possession

exercised in one’s own name and possession in the name of another.

• rights of possession may be exercised through agents (a) necessary— exercised on behalf of the

conceived child, of juridical persons, of persons not sui juris, and of the conjugal partnership

(b) voluntary— in cases of agents or administrators appointed by the owner or possessor

(2) Possession in the concept of an owner and

possession in the concept of a holder with the ownership belonging to another

In the Concept of a Holder • such possessor acknowledges in

another a superior right which he believes to be ownership, whether his belief be right or wrong

• tenant possesses the thing leased as holder (but he possesses the lease right as owner)

• same with usufructuary and borrower of the thing loaned in commodatum

In the Concept of Owner

• such possessor may be the owner himself or one who claims to be so

• concept is opinion, not of the possessor himself but of others

• not possessors in this concept: lessee on the land, a mere casual cultivator and administrator, and one who is aware of the adjudication of land to another

• only this class of possession can serve as title for acquiring dominion

• good faith or bad faith is immaterial

except for purposes of prescription (GF: 10 yrs; BF: 30 yrs)

Effects of possession in the concept of an owner:

(1) possession may be lapsed of time ripen into full ownership, subject to certain exceptions

(2) presumption of just title and cannot be obliged to show or prove

it Exception: for purpose of prescription in Art 1131.

(3) possessor can bring all actions an owner can bring to protect his possession, except accion reivindicatoria

(4) may employ self-help (Art 429) (5) can ask for the inscription of his

possession in the registry of property

(6) has right to the fruits and reimbursement for expenses (assuming he is a possessor in GF)

(7) upon recovering possession from unlawful deprivers, can demand fruits and damages

(8) generally, he can do on the things possessed everything an owner is authorized to do until he is ousted by one who has a better right (e.g., he can exercise right of pre-emption, he is entitled to indemnity in case of expropriation)

(9) possession in GF and possession in

BF

(3) Possession in good faith and possession in bad faith

• possession in good faith ceases from the

moment defects in the title are made known to the possessor

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• when an action is filed to recover possession, good faith ceases from the date of the summons to appear at the trial

• possessor in GF: unaware that there exists a flaw which invalidates his acquisition of the thing

• GF consists in the possessor’s belief that the person from whom he receive a thing was the owner of the same and could convey his title

• GF is always presumed, and he who alleges BF on the part of the possessor has the

burden of proving his allegation • belief of the possessor that he is the legal

owner must be based on some title or mode of acquisition, i.e., sale, donation, inheritance

• error in the application of the law, in the legal solutions that arise form such application, in the appreciation of the legal consequences of certain acts, and in the interpretation of doubtful provisions or doctrines, may properly serve as the basis of GF- mistake upon a doubtful or difficult question of law as a basis of good faith [Art 526 (3)]

• possessor in Bad Faith: knows that his title

is defective Case A person is deemed a possessor in BF when he knows that there is a flaw in his title or in the manner of acquisition by which it is invalidated. Gross and inexcusable ignorance of the law may not be the basis of good faith, but possible, excusable ignorance may be such basis. Kasilag is not conversant with the laws because he is not a lawyer. It can be concluded therefore that Kasilag’s ignorance of Sec 116 is excusable and may be a basis of good faith. (Kasilag v Rodriguez) Subjects of possession • All rights and things susceptible of

appropriation • Things which cannot be possessed:

(1) property of public dominion (2) res communes (3) easements (discontinuous or non-apparent) (4) things specifically prohibited by law

• res nullius (abandoned or ownerless property)– may be possessed but cannot be acquired by prescription

Acquisition of Possession (1) Ways of acquiring possession

(a) Material occupation of the thing • occupation is used in the general sense,

i.e., a means of acquiring possession of things, not of rights

• kind of possession acquired is only the fact of possession, not the legal right of possession

(i) Doctrine of constructive possession • no actual possession but subject to

control • possession of a portion of a parcel

of land under the claim of ownership or title is constructive possession of the entire parcel of land, unless a portion thereof is

adversely possessed by another (Ramos v Dir of Lands)

(ii) Includes constructive delivery

(equal to material occupation in cases where occupation is essential to the acquisition of prescription)

traditio brevi manu • one who possesses a thing by

title other than ownership continues to possess the same but under a new title, that of ownership

traditio constitutum possessorium • owner alienates the thing, but

continues to possess the same but as that of depositary, pledge, or tenant

(b) subjection to the action of our will

• different from and independent of juridical acts and legal formalities

as it refers more to the right of possession that to possession as a fact

(i) traditio simbolica -- effected by delivering some object or symbol, placing under the thing under the control of the transferee, such as the keys to the warehouse containing the goods delivered [Art 1498 (2)]

(ii) traditio longa manu – effected by the transferor pointing out to the transferee the things which are being transacted

(c) proper acts and legal formalities

• refers to the acquisition of possession by sufficient title, whether inter vivos or mortis causa, or lucrative or onerous

• e.g., donations, succession, contracts, judicial writs of possession, writs of execution of judgments, and registration of

public instruments Case: There was a perfect contract of pledge and the depositary was placed in the possession of the goods after the symbolic transfer by means of delivery to him of the keys to the warehouse

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where the goods were kept. (Banco Espanol Filipino v. Peterson) (2) By whom possession may be acquired

(a) by same person Elements of personal acquisition

• must have the capacity to acquire possession

• must have the intent to possess

• possibility to acquire possession must be present

(b) by his legal representative Requisites:

• representative or agent has the intention to acquire the thing or exercise the right for another, and not for himself

• person for whom the thing has been acquired or right exercised, has the intention of possessing such thing or exercising such right

(c) by his agent (d) by any person without any power

whatsoever but subject to ratification, without prejudice to proper case of negotiorum gestio

• owner is liable for obligations

incurred in his interest, and shall reimburse the officious manager for

necessary and useful expenses and damages which the latter may have suffered

• ratification by the person for whom the thing was acquired will retroact to the time of apprehension by the gestor

(e) Qualifiedly, minors and incapacitated

persons • “incapacitated”— insane, lunatics,

deaf-mutes who do not know how to read and write, spendthrifts, and those under civil interdiction

• refers only to possession of things, not of rights, and to acquisition of possession by material occupation

(3) What do not affect possession (a) acts merely tolerated

• acts merely tolerated are those which by reason of neighborliness or familiarity, the owner of the property allows his neighbor or

another person to do on the property

• there is a thin dividing line between tolerance and abandonment of rights; it is for the courts to determine

(b) acts executed clandestinely AND without knowledge of the possessor

• acts must not only be clandestine but must also be unknown to the owner

(c) acts by violence as long as the

possessor objects thereto (i.e., he files a case)

• person seeking to get possession

should never take the law into his

own hands, but must invoke the aid of competent courts

• when a person is in possession of land and has maintained that possession for years, he cannot be forcibly dispossessed thereof.

Cases If owner of a tract of land, to accommodate the public, permits them to cross his property, it is not his intention to divest himself of ownership or to establish an easement. Such possession is not affected by acts of possessory character which are merely tolerated. (Cuaycong v Benedicto) As a squatter, she has no possessory rights over the disputed lot. The State’s solicitude from the destitutes and the have-nots does not mean that it should tolerate usurpations pf property, public or private. (Astudillo v PHHC)

Possession by tolerance is lawful, but this becomes illegal when, upon demand to vacate by the owner, the possessor refuses to comply with such demand. A possessor by mere tolerance is necessarily bound by an implied promise to vacate upon demand. (Peran v CFI)

(4) Rules to solve conflict of possession General Rule: Possession cannot be recognized in two different personalities Exception: in cases of co-possession by co-possessors without conflict claims or interest. • In case of conflict of possession, the

following order of preference must be followed: (1) present possessor or actual possessor (2) if 2 or more possessors, the one longer

in possession (3) if dates of possession are the same, the

one who presents a title

(4) if all the condition are equal, the thing shall be placed in judicial deposit pending determination of possession or ownership through proper proceedings

• Preference in case of conflict of ownership (double sales)

(1) for immovable property

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(a) first who registered his right in GF in the

Registry of Property (b) if no registration, first who possessed in GF (c) if no possession, one who presents the oldest title (2) for movable property: first who possessed in GF Effects of Possession

(1) In general, every possessor has a right to

be respected in his possession; if disturbed therein, possessor has right to be protected in or restored to said possession

(a) action to recover possession

(i) summary proceedings – forcible

entry and unlawful detainer. Plaintiff may ask for writ of preliminary mandatory injunction may be asked. Within 10 days from filing of complaint in forcible entry - the same writ is available in unlawful detainer actions upon appeal (Art 1674)

• The acquirer and possessor in good

faith of a chattel or movable property is entitled to be respected and protected in his possession as if he were the true

owner, until a competent court rules otherwise. Such possession in good faith is equivalent to title and every possessor has a right to be respected in his possession (Arts 539 and 559). (Yu v Honrado)

(ii) accion publiciana (based on

superior right of possession, not of

ownership) • action for recovery of real property

upn mere allegation and proof of a better right without the need of showing title

• issue: POSSESSION only • no need to wait for the expiration

of 1 yr. before bringing such action; if no action for forcible entry and unlawful detainer within 1 yr, this action may still be brought

(iii) accion reivindicatoria (recovery of ownership) • action setting up not only the right

of possession, but also of title and ownership

• action in case of refusal of a party to deliver possession of property due to an adverse claim of ownership

(iv) action for replevin – for recovery of movable property

(b) Possessor can employ self-help (2) Entitlement to fruits – possessor in GF/ BF • Possessor in GF is entitled to the fruits

received before the possession is legally interrupted. The law limits the right though only to the fruits of the thing and therefore he has no rights to the objects which do not constitute fruits, e.g., tress in the orchard

• Possessor in BF has no right to receive any fruits. Those already gathered and existing will have to be returned; with respect to those lost, consumed, or which could have been received, he must pay the value. But the possessor in BF does not have to pay interest on the value of fruits he has to pay, because such amount is unliquidated.

(3) Reimbursement for expenses

Possessor in GF Possessor in BF entitled to reimbursement for (1) necessary and

(2) useful expenses, with the right to retain the thing until he has been reimbursed

entitled to reimbursement for necessary expenses,

but NOT for useful expenses. Also has NO right of retention over the thing

Useful expenses— reimbursement will be based either on: (1) the amount of expenses; or (2) on the increase in the value which the thing may have acquired by reason of such improvement

Useful improvements— General Rule: can be removed without

damage to the principal thing, possessor in GF may remove them Exception: if the owner wants to keep the improvements

Expense for pure luxury— will not be refunded but may be removed if : (1) it can be removed without injury to the thing or (2) if the owner does

has same rights with possessor in GF

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not prefer to refund the amount

(4) Possession of movable acquired in GF (in concept of an owner) is equivalent to title • possessor has actual title which is

defeasible only by true owner • one who has lost a movable or has been

unlawfully deprived thereof may recover it without reimbursement, except if possessor acquired it at a public sale

• 3 requisites to make possession of movable equivalent to a title: (1) that the possession is in GF (2) that the owner has voluntarily parted

with the possession of the thing (3) that the possession is in the concept of

an owner Presumptions in favor of the possessor (1) Of good faith until the contrary is proved • only a presumption juris tantum • it is presumed that the right of the

possessor is well-founded, since the possession is the outward sign of ownership

• declaration of nullity of a title does not imply that it was acquired in BF

• presumption of GF is not immediately changed into BF in the basis of constructive

notice of registration proceedings (2) Of continutity of initial GF in which

possession was commenced or possession in GF does not lose its character Exception: in the case and from the moment the possessor became aware or is not unaware of improper or wrongful possession.

• there is GF until defects in the title are made known to the possessor by extraneous evidence or by suit from recovery by the true owner— usually from the time of service of summons

Good faith ceases when they were served with summons to answer the complaint. As possessors in bad faith from the service of the summons, they shall reimburse the fruits received. (Cordero v Cabral)

(3) Of enjoyment of possession in the same character in which was acquired until the contrary is proved. (4) Of non-interruption of possession in

favor of present possessor who proves possession at a previous time until the contrary is proved.

2 Kinds of Interruption (1) Natural (Art 1122)—if interruption is for

more than 1 year . BUT it is not

natural interruption if a third person is possessing the property for the owner. However, if he is possessing it for himself, then there is natural interruption

(2) Civil (Art 1123)— will start from the service of summons but the proper action must be the one filed

• in case of natural interruption, the old possession loses all its juridical effects and therefore cannot be tacked to the new possession for purposes of prescription

• in case of civil interruption, if possession is recovered, it can be connected to the time that has elapsed as if it were continuous and can be counted in favor of prescription

(5) Of continuous possession or non-

interruption of possession of which he was wrongfully deprived for all purposes favorable to him

• applies to both possessors in BF and GF,

but only insofar as it redounds to their benefit

• GF possessor is deemed in continuous possession for purposes of prescription

• BF possessor is not obliged to return fruits which might have been received during the time that he was not in possession because to consider him in continuous possession would be prejudicial to him

• recovery of possession must be according to the law, i.e., through the use of proper actions or with the aid of the competent

authority (6) Other presumptions with respect to specific

property rights

(i) Of extension of possession of real property to all movables contained therein so long as it is not shown that they should be excluded (Art. 426)

(ii) Non-interruption of possession of hereditary property (Art. 533, Art. 1078)

(iii) Of just title in favor of possessor in concept of owner, subject to Art. 1141

• possession is prima facie presumed ownership, unless the contrary is proved

• just title—that which is legally sufficient to transfer the ownership or the real right to which it relates

• just title does not always consist in documents. It may be proved by testimonies of witnesses

Loss of Possession (1) Abandonment—voluntary renunciation of all rights which a person may have in the thing, with the intent to lose such thing

• to be effective:

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(1) necessary that it be made by a possessor in the concept of owner; and

(2) must clearly appear that the spes recuprandi is gone and the animus revertendi be finally given up

• by virtue of abandonment, the thing is left without owner or possessor

(2) Assignment—complete transmission of

ownership rights to another person, gratuitously or onerously

(3) Destruction—must be total, otherwise,

partial loss will result in loss of possession in the lost part only

(4) Possession of another—the possession that is lost here refers only to possession as a fact (de facto), not the legal right of possession (de jure) • after 1 year, the actions forcible entry

and unlawful detainer can no longer be brought. But the accion publiciana may still be instituted to recover possession de jure

• the possession that is lost, i.e., possession de facto, is also the possession that the new possessor acquires

• real right of possession is lost only after 10 years

NOTE: all the other 3 cases of loss of possession (abandonment, assignment, destruction) refer to loss of possession de

jure (real right of possession) and therefore cannot be recovered anymore by any action. • third parties relying on the Registry of

Property are privileged to consider the registered possessors or owners as still such in spite of loss

Rules for Loss of Movables General Rule: possession of personal property acquired in GF = title therefore the true owner cannot recover it

Exception: if the true owner (1) lost the movable or (2) has been unlawfully deprived

In either of these, he may recover the personal property not only from the finder but also from those who may have acquired it in GF form such finder or thief, without paying for any indemnity except if possessor acquired it in public sale (here, the possessor in GF is entitled to reimbursement).

• Public sale—is one where there has been a public notice of the sale, in which anybody has a right to bid and offer to buy

• Requisites for Title: (1) that the possession is in GF

(2) that the owner has voluntarily parted with the possession of the thing

(3) that the possessor is in the concept of an owner

• Wild animals are possessed only while they are under one's control; domesticated or tamed animals are considered domestic or tame if they retain the habit of returning to the premises of the possessor. (Art. 560)

(5) Reivindication—the most natural mode of

losing possession, i.e., recovery or reivindication of the thing by the lawful owner

Effects of Possession in Good Faith or Bad

Faith

Good Faith Bad Faith

Fruits received

Entitled to the fruits while possession is in GF and before legal interruption (Art 544)

Must reimburse fruits received or fruits which legitimate possessor could have received (549); Entitled to expenses for

production, gathering, and preservation

Pending Fruits

Entitled to a part of the expenses of cultivation and a part of the network harvest, both proportion to the time of possession (545) Owner may indemnify or allow possessor in GF to finish cultivation and

the fruits will be indemnified for his cultivation (545) If possessor refuses concession, no indemnity (545)

Charges Must share with the legitimate

Same as with GF

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possessor, in proportion to the time of possession

Necessary Expenses

Right of reimbursement and retention in the

meantime (545)

Reimbursement only

Useful Expenses

Owner’s option to reimburse him either for expenses or for increase in value (546) Retention prior to reimbursement (546) Limited right of removal (but should not damage principal and owner does not exercise option of

payment of expenses or increase in value) (547)

No right to reimbursement. He also cannot remove improvements even he can do so without injury to the principal thing

Ornamental Expenses

Limited right of removal as above (548)

Limited right of removal (no injury to thing and lawful possessor does not retain by paying for them) (548)

Deterioration or Loss

No liability unless due to fraud or negligence after becoming in BF

Liable WoN due to his fault, negligence, fortuitous event

Costs of Litigation

Bears cost Bears cost

Effects of Recovery of Possession

• Improvements caused by nature or time shall always insure to the benefit of the person who has succeeded in recovering possession. (Art. 551).

• improvements—include all the natural accessions referred to in Arts 457 to 465, and all those which do not depend upon the will of the possessor (e.g., increase in the value caused by widening of streets, construction of road, etc)

• One who recovers possession shall not be obliged to pay for improvements

which have ceased to exist at the time he takes possession of the thing. (Art. 553)

• the improvements having ceased to exist, the lawful possessor cannot benefit from them.

• BUT remember: necessary expenses are not considered as improvements therefore the lawful possessor or owner has to pay for them even if the object for which they were incurred no longer exist

EASEMENTS

Easement – is a real right which burdens a thing with a prestation consisting of determinate servitudes for the exclusive enjoyment of a person who is not its owner or of a tenement belonging to another. - the real right immovable by nature by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something in his property for the benefit of

another thing or person Essential Features of Easements or Real

Servitudes (1) It is a real right. It gives rise to an action in

rem or real action against any possessor of the servient estate.

(2) It is a right enjoyed over another property (jus in re aliena). It cannot exist in one’s own property (nulli res sua servit). Servient and dominant estates have to belong to different persons.

(3) It is a right constituted over an immovable by nature not over movables.

(4) It limits the servient owner’s right of ownership or the benefit of the dominant estate. But servient tenement remains unimpaired. Being an abnormal limitation of ownership, it cannot be presumed.

(5) It creates a relation between tenements. (6) It can exist only between neighboring

tenements. It can’t be created on another

servitude. (7) It cannot consist in requiring the owner of

the servient estate to do an act unless the act is accessory to a praedial servitude (obligation propter rem).

(8) It may consist in requiring the owner of the dominant estate demanding that the owner of the servient estate refrain from doing something (servitus in non faciendo), or that the latter permit that something be done over the servient property (servitus in patendo) but not in the right to demand that the owner of the servient estate do something (servitus in faciendo) except if such act is an accessory obligation to a praedial servitude.

(9) It is inherent or inseparable from estate to which they actively or passively belong.

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• Servitudes cannot exist without tenements.

They are merely accessory or a quality of tenements. This doesn’t mean they don’t have juridical existence of their own.

• Inherence refers only to that portion of the tenement affected by it. Portion not affected can be alienated without the servitude.

• Contract of transmission of easement by owner of the dominant estate may constitute a renunciation or

extinguishments of easement (10) It is intransmissible, cannot be

alienated separately from the tenement. It can’t be the object of mortgage and exists even if not annotated as an encumbrance on Torrens title.

(11) It is indivisible. Indivisibility relates only to

the portion of tenement affected by the servitudes. If the dominant estate is divided into parts, there arise as many new dominant tenements as there are parts.

(12) It has permanence. Once it attaches whether used or not, it continues and may be used anytime.

Classification of Servitudes (1) As to recipient of benefits

(a) Real or praedial servitude – Servitude exists for the benefit of a particular tenement

(b) Personal servitude – Servitude exists for the benefit of persons without a dominant tenement. It pertains to a person or a group of persons and not to any owner of a tenement. It

(2) As to its exercise and as indication of

its existence (Continuous/Discontinuous)

• Easements may be continuous or discontinuous, apparent or non-apparent..

• Continuous easements are those the use if which is or may be incessant, without the intervention of any act of man.

• Discontinuous easements are those which are used at intervals and depend upon the acts of man.

• Apparent easements are those which are made known and which are continually kept in view by external signs that reveal the use and enjoyment of the same.

• Non-apparent easements are those which show no external indication of their existence.

(3) By the object of the obligation imposed

(Positive/Negative) • A positive easement is one which

imposes upon the owner of the servient

estate the obligation of allowing something to be done or doing it himself

• A negative easement, that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist.

• Easement of light and view is negative when the openings are made in one’s own wall. It imposes upon the owner of the adjacent tenement the obligation

not to construct on his own land in such manner as to obstruct the light.

• When opening is made on another’s wall or on part wall, servitude is positive because the owner or owners permit the encumbrance to burden his wall.

• It is also positive if the opening is made in one’s own wall and there are balconies extending over the tenement of another.

• Essential duty of the servient owner is negative. A duty to do in his part is at most an accessory or subsidiary obligation.

(4) As to cause or origin

• Legal-created by law • Voluntary-created by the will of the

parties General Rules Relating to Servitudes

(1) No one can have a servitude over his own property (nulli res sua servit)

(2) A servitude cannot consist in doing (servitus in faciendo consistere nequit)

(3) There cannot be a servitude over another servitude (servitus servitudes nequit)

(4) A servitude must be exercised civiliter, in a way least burdensome to the owner of the land.

(5) A servitude must have a perpetual cause.

Modes of Acquiring Easements (1) By title

• A juridical act which gives rise to the servitude such as the law (e.g. donation, contracts and wills)

• If easement has been acquired but no proof of existence is available, and easement is one that cannot be acquired by prescription, then:

a) May be cured by deed of recognition by

owner of servient estate b) By final judgment c) Existence of an apparent sign considered a

title • Discontinuous easement can only be

acquired by title and not by prescription.

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• The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, as the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the

execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons. (Art. 624.)

Cases The road is clearly a servitude voluntarily constituted in favor of the community under Art. 531. Having been devoted by NNSC to the use of the public in general, the road is charged with public interest. And while so devoted. NNSC may not establish discriminatory exceptions against any private persons. (North Negros Sugar Co. vs Hidalgo) Since the construction of the church, there had been a side door in the wall through which the worshippers attending mass enter and leave, passing and entering the land in question. As this use of the land has been continuous, it is evident that the church has acquired a right to such use by prescription, in view of the time

that has elapsed since the church was built and dedicated to religious worship, during which period the Municipality has not prohibited the passage over the land by persons who attend services held by the church. (Municipality of Dumangas vs Bishop of Jaro)

Easement of light and view go together. Acquisition of easements is by title or by prescription. The visible and permanent sign of an easement is the title that characterizes its existence. Existence of the apparent sign had the same effect as a title of acquisition of the easement of the light and view upon death of original owner. (Amor vs. Florentino) (2) By prescription

• Continuous and apparent easements may be acquired by prescription.

• Under Article 621, the time for reckoning prescription:

a) Positive easements- from the day on which the owner of the dominant

estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate

b) Negative easements- from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before e notary public, the owner of the servient estate, from

executing an act which would be lawful without the easement.

• Prescription does not require good

faith or just title. General rules for acquisitive prescription of ownership and other real rights do not apply to it. There must however be adverse possession or exercise of the easement.

Cases

An easement of a right of way cannot be acquired through prescription. Possession of a right consists in the enjoyment of that right (Art. 423) and to enjoy a right is to exercise it. it follows that the possession (enjoyment or exercise) of a right of way is intermittent and discontinuous. From this premise, it is inevitable to conclude, with that such easement can not be acquired by acquisitive prescription (adverse possession) because the latter requires that the possession be continuous or uninterrupted (Art. 1118). (Ronquillo v Roco)

Rights and Obligations of Owners of Dominant and Servient Estates

(1) Rights of the dominant estate

(a) To use the easement (Art.626) and exercise all rights necessary for the use (Art. 627)

(b) To use at his expense all necessary works for the use and preservation of the easement. (Art. 627)

(c) In a right of way, to ask for change in width of easement sufficient for needs of dominant estate.

Such right of way may be demanded when there is absolutely no access or even when there is one, it is difficult or grossly insufficient. Art. 651 also provides that “the width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time.” (Encarnacion v CA)

(2) Obligations of dominant estate

(a) To use easement for the benefit of immovable and in the manner originally established. (Art. 626)

(b) To notify owner of the servient estate before making repairs in manner inconvenient to servient estate. (Art. 627)

(c) Not to alter easement or render it

burdensome. (d) If there are several dominant estates

unless he renounces his interest: to contribute the expenses of works necessary for use and preservation servitude. (Art. 628)

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• Owner of dominant estate has the right to use accessory servitudes or those necessary for the use of other servitudes regarded as principals ones.

• When easement has been established in a general way, without any specific purpose, it can be used for all the needs of the dominant estate may be adopted to any new modification in the tenement itself.

• Works must be executed in the manner of least inconvenience to the servient who cannot recover indemnity for the inevitable

damages that may be suffered by the servient owner.

• If dominant owner violates restrictions, he can be compelled to restore the things their original condition and to pay indemnity for the damages.

• If dominant tenement is alienated, transferee can be required to restore things their original condition but he cannot be required to pay indemnity because this is a personal liability of the former owner.

(3) Rights of the servient estate

(a) To retain ownership and use of his property (Art 630)

(b) To change the place and manner of the use of the easement

(4) Obligations of the servient estate (a) Not to impair the use of the easement.

(Art. 629) (b) To contribute proportionately to

expenses to use the easement [Art 628(2)]

• Owner of servient tenement must abstain from anything that will render the use of the easement more inconvenient to the owner of the dominant estate.

• If owner of the servient estate performs act or constructs works impairing the use of the servitude, the owner of the dominant tenement may ask for the destruction of such works and restoration of things to their condition before the impairment with indemnity for damages suffered. Injunction may also obtained in order to restrain the

owner of servient tenement. Modes of Extinguishment of Easements (1) Merger – must be absolute, perfect and

definite, not merely temporary. • If cause for cessation of merger is inherent

like nullity or rescission, easement is reestablished. If extrinsic, there is no revival.

• When owner of the servient estate buys dominant estate, easement is extinguished but if he sells one of the estates later, easement is not reestablished.

(2) Non- user for 10 years

(a) Computation of period

(1) Discontinuous easements: counted from the day they ceased to be used

(2) Continuous easements: counted from the day an act adverse to the exercise took place

(b) Use by a co- owner of the dominant

estate bars prescription with respect to others.( Art 633)

(c) Servitudes not yet exercised cannot be extinguished by non-user.

• Non – user must be due to abstention by dominant owner and not to fortuitous event. If dominant estate is used in common, exercise of the easement of one of the co – owner inures to the benefit of all others and preserves the easement which is indivisible.

• Servitudes not yet exercised cannot be extinguished by non – user.

(3) Impossibility of use • When either or both of the estates fall into

such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number;

• This mode arises from the condition of the tenements and only suspends the servitude

unlit such time when it can be used again. • 10 years cap for suspension, otherwise,

extinguished by prescription as previously provided. Eg. Flooding of servient tenement over which a right of way exists.

(4) Expiration of term or fulfillment of

resolutory condition By the expiration of the term or the fulfillment

of the condition, if the easement is temporary or conditional;

(5) Renunciation of owner of the dominant

estate Fact that owners of the dominant estate

refrained from claiming the servitude without any positive act to imply a real waiver or renunciation does not bring the case within the provisions of this article.

Occurs only in voluntary easements.

(6) Redemption agreed upon between the owners.

• By the redemption agreed upon between

the owners of the dominant and servient estates. -Voluntary

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-Stipulated conditions, which extinguish easements.

(7) Other causes not mentioned

(a) Annulment or rescission or cancellation of the title constituting the easement.

(b) Termination of the right of grantor to create the easement ( e.g. redemption of the property sold a retro because of the exercise of the right of conventional redemption ( Art. 1618)

(c) Abandonment of the servient estate

(d) Eminent domain – i.e. expropriation of the servient estate or dominant estate

(e) Special cause of extinction of legal right of way, the opening of an adequate outlet to the highway extinguishes the easement, if servient owner makes a demand for such extinguishment.(Art. 655)

(f) Registration of the servient estate as FREE, that is, although the servient estate was registered under the Torrens system, the easement thereon was not there is a stipulation or actual knowledge of the easement on the part the transferee.

(g) Permanent impossibility to make use of the easement.

Legal Easements (1) Laws Governing Legal Easements

(a) Public Easements (1) Special laws and regulations

relating (2) Chapter 2, Title VIII, Book II of the

New Civil Code

(b) Private legal easements (1) By agreement of the interested

parties whenever the law does not prohibit it and no injury is suffered by a third person.

(2) Chapter 2, Title VII, Book II of the New Civil Code

(2) Private Legal Easements provided for by the New Civil Code

(a) Those established for the use of water

or easements relating waters (Arts. 637 – 648) (1) Natural drainage of waters with

stones or earth carried with them • This is a natural servitude and exists only

with respect to waters which form in upper tenements and flow to the lower tenements by force of nature and not by those caused by acts of man.

• Owner of tenements cannot construct works

to increase the burden of this servitude. • Owner of the lower tenements cannot make

works which impede the servitude. But he can construct work necessary to prevent damage to himself provided it does not impede the natural servitude and he does

not cause damage to other tenements by accumulation of the waters.

• Rain water from roofs of buildings and water from houses can not be made to fall directly on lower tenements. They must be received on one’s own land.

• It is the duty of the owner of the building to direct the rainwater to a public place or to establish an easement of passage of water through a neighboring tenement.

Case

The dikes are continuous easements since it does depend upon the act of man, but is due to gravity. Being such, it is subject to the extinction to the non-user (20 years in the Old Code and 10 years in the New Code). Since, it was admittedly built in 1937 or 1938, the action is barred by prescription. (Ongsiaco v. Ongsiaco)

(2) Easements on lands along riverbanks

• For public use: Three meter zone along

margins for navigation, floatage, fishing and salvage.

• If navigable – Towpath easement for navigation and floatage

• If private land – expropriate, since it is for private use.

(3) Abutment of Land

• Non – owner builder of the dam pay owner

of land for the abutment of the land. • abutment – part of dam that extends to the

riverbank or dam • if no easement previously established, and

the dam floods the land – injured owner or his representative can remove it as private nuisance.

(4) Aqueduct

Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through the intervening estates, with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend. (Art. 642.) Obligation of the dominant estate: (1) To prove that he can dispose of the water and that it is sufficient for the use for which it is intended; (2) To show that the proposed right of way is the most convenient and the least onerous to

third persons; (3) To indemnify the owner of the servient estate in the manner determined by the laws and regulations. • The easement of aqueduct for private

interest cannot be imposed on buildings,

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courtyards, annexes, or outhouses, or on orchards or gardens already existing.

• The easement of aqueduct does not prevent the owner of the servient estate from closing or fencing it, or from building over the aqueduct in such manner as not to cause the latter any damage, or render necessary repairs and cleanings impossible.

• For legal purposes, the easement of aqueduct shall be considered as continuous and apparent, even though the flow of the water may not be continuous, or its use

depends upon the needs of the dominant estate, or upon a schedule of alternate days or hours.

(5) Drawing waters and watering

materials Compulsory easements for drawing water or for watering animals can be imposed only for reasons of public use in favor of a town or village, after payment of the proper indemnity. (Art. 640) Easements for drawing water and for watering animals carry with them the obligation of the owners of the servient estates to allow passage to persons and animals to the place where such easements are to be used, and the indemnity shall include this service. (Art. 641)

Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for watering places,

resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by the usages and customs of the place. (Art. 657) • Without prejudice to rights legally acquired,

the animal path shall not exceed in any case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters.

• Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this Section and those of Articles 640 and 641 shall be observed. In this case the width shall not exceed 10 meters.

(6) Stop lock and sluice gate

Art. 647. One who for the purpose of irrigating or improving his estate, has to construct a stop lock or sluice gate in the bed of the stream from

which the water is to be taken, may demand that the owners of the banks permit its construction, after payment of damages, including those caused by the new easement to such owners and to the other irrigators.

(b) Easement of right of way

• Requisites before demanding a right of way (Articles 649-650) (a) owner, or anyone with a real right to

cultivate, or use immovable (b) not due to acts of the proprietor of the

dominant estate (c) surrounded by immovables belonging

to others, without adequate outlet to public highway

i. absolutely no access ii. difficult or dangerous to use

(d) right of way claimed is the least

prejudicial to the servient estate (e) payment of the proper indemnity

(i) permanent passage – value of the land (ii) without permanent passage –

payment of damages • To justify the imposition of this servitude,

there must be a real necessity for it. Mere convenience is not enough. Even when there is a necessity, if it can be satisfied without imposing the servitude, servitude should not be imposed.

• Owner can not by his own act isolate his property from the public highway and then claim an easement of way through an adjacent estate.

• Access to highway may be demanded: (a) when there is absolutely no access

to a public highway (b) when even if there is one, it is

difficult or dangerous to use or is grossly insufficient

• When the want of an access to a public highway is due to acts imputable to the owner as when he constructs buildings or grants concessions to others obstructing the old way, the law prevents him from obtaining a legal servitude of right of way.

• The outlet has to be sufficient for the purpose and needs of the dominant owner although it need not be public.

• Whether a right of way is reasonable and necessary depends upon the circumstances of each particular case. Servitude must meet the requirements of and be of beneficial use to the dominant estate. But this is subject to the limitation that the usefulness of the servient estate is not unreasonably impaired.

• Payment of the value of the land for permanent use of easement does not mean an alienation of the land occupied.

• Criterion of the least prejudice to the servient estate must prevail over the criterion of the shortest distance. (Quimen v. Quimen)

• Where there are several tenements surrounding the dominant estate and the easement may be established on any of them, the one where the way is the shortest and will cause the least damage should be chosen. But if these two requirements do not concur, the way which will cause the least damage should be

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chosen even if not the shortest. If conditions of the various tenements are the same, all adjoining owners should be cited and experts utilized.

• Before judicial decision, establishment of any road would constitute an invasion of the land with all consequences resulting from such transgression.

• It is the needs of the dominant estate which determines the width of the passage. Servitude may thus be modified after it has already been established.

Whenever a piece of land acquired by sale, exchange or partition, is surrounded by other estates of the vendor, exchanger, or co-owner, he shall be obliged to grant a right of way without indemnity. In case of a simple donation, the donor shall be indemnified by the donee for the establishment of the right of way. (Art. 652) • Servitude without indemnity is considered

as a tacit condition of the sale, exchange or partition, but not implied in a simple donation because the grantor receives nothing from the grantee.

• When the right of way originally established without indemnity should disappear or become useless, a legal servitude may be demanded with the payment of the indemnity.

• On the other hand, if grantor/ exchanger/ vendor ‘s property becomes isolated, he

must pay indemnity. Art. 654. If the right of way is permanent, the necessary repairs shall be made by the owner of the dominant estate. A proportionate share of the taxes shall be reimbursed by said owner to the proprietor of the servient estate. • Obligations of praedium dominans;

necessary repairs, proportionate share of taxes.

Art. 655. If the right of way granted to a surrounded estate ceases to be necessary because its owner has joined it to another abutting on a public road, the owner of the servient estate may demand that the easement be extinguished, returning what he may have received by way of indemnity. The interest on the indemnity shall be deemed to be in payment of rent for the use of the easement. The same rule shall be applied in case a new road is opened giving access to the isolated estate.

In both cases, the public highway must substantially meet the needs of the dominant estate in order that the easement may be extinguished. • Extinguishment Not Ipso Jure – (only)

owners of the servient estate has to ask for it and return indemnity.

• Owner of the dominant estate may not ask for the return of the indemnity unless servient owner asks for the extinguishment.

• Offset interest of the indemnity with rentals of the land.

Art. 656. If it be indispensable for the construction, repair, improvement, alteration or beautification of a building, to carry materials through the estate of another, or to raise therein scaffolding or other objects necessary for the work, the owner of such estate shall be

obliged to permit the act, after receiving payment of the proper indemnity for the damage caused him. • This may be demanded by owner and

usufructuary. • Word indispensable should not be

understood as indicating that it would be impossible to construct or repair the building. It is enough that it would be extremely difficult to do so without the easement.

Animal Path • Without prejudice to rights legally acquired,

the animal path shall not exceed in any case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters.

• Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this Section and those of

articles 640 and 641 shall be observed. In this case the width shall not exceed 10 meters.(570a)

Cases A voluntary easement of right of way could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements, not voluntary easements. (La Vista v. CA) An easement of right of way can be established through continued use. This doctrine was enunciated in Ronquillo v Roco which held that an easement of right of way is discontinuous in nature since the dominant estate cannot be continually crossing the servient estate but can do so only at intervals. (Vda. de Baltazar v CA) The use of the road lots by the Llenados during

the month of March was by mere tolerance of Floro pending the negotiation of the terms & conditions of the right of way. Although such use was in anticipation of a voluntary easement, no such contract was validly entered into by reason of the failure of the parties to agree on its terms & conditions. The burden of proving the existence of the prerequisites to validly

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claim a compulsory right of way lies on the owner of the dominant estate. (Floro v Llenado)

(c) Easement of party wall

Art. 658. The easement of party wall shall be governed by the provisions of this Title, by the local ordinances and customs insofar as they do not conflict with the same, and by the rules of co-ownership

• Party wall is a co-ownership in a special

class by itself: (1) It is indivisible. (2) The part pertaining to each co-owner

can be materially designated. (3) Rights of a co-owner of a party wall are

greater than those of an ordinary co-owner and with respect to increasing the height of the wall.

• Wall may be owned in common by the adjoining owners either form its construction or by a subsequent act. Each owner can insert the beams of his building in the wall to the extent of its entire thickness.

• A party wall is one which is built by common agreement by getting land from the adjoining tenements in equal parts. Each owner may use the wall but only to the extent of one-half of its thickness.

Art. 659. The existence of an easement of

party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary: (1) In dividing walls of adjoining buildings up to the point of common elevation; (2) In dividing walls of gardens or yards situated in cities, towns, or in rural communities; (3) In fences, walls and live hedges dividing rural lands. • There is presumption juris tantum. Co-

ownership must be accepted unless the contrary appears from the title showing that the entire wall belongs exclusively to one of the property owners or unless there is an exterior sign to destroy such presumption.

Art. 660. It is understood that there is an exterior sign, contrary to the easement of party wall: (1) Whenever in the dividing wall of buildings there is a window or opening;

(2) Whenever the dividing wall is, on one side, straight and plumb on all its facement, and on the other, it has similar conditions on the upper part Art. 657. Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for watering places, resting places and animal folds, shall be governed by the ordinances and regulations

relating thereto, and, in the absence thereof, by the usages and customs of the place. Without prejudice to rights legally acquired, the animal path shall not exceed in any case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters. Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this Section and those of Articles 640 and 641 shall be observed. In this case the width shall not exceed 10 meters. (570a), but the lower

part slants or projects outward; (3) Whenever the entire wall is built within the boundaries of one of the estates; (4) Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others; (5) Whenever the dividing wall between courtyards, gardens and tenements is constructed in such a way that the coping sheds the water upon only one of the estates; (6) Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other; (7) Whenever lands inclosed by fences or live hedges adjoin others which are not inclosed. In all these cases, the ownership of the walls, fences or hedges shall be deemed to belong exclusively to the owner of the property or tenement which has in its favor the presumption on any one of these signs. (573)

Art. 661. Ditches or drains opened between two estates are also presumed as common to both, if there is no title or sign showing the contrary. There is a sign contrary to the part-ownership whenever the earth or dirt removed to open the ditch or to clean it is only on one side thereof, in which case the ownership of the ditch shall belong exclusively to the owner of the land having this exterior sign in its favor. Art. 662. The cost of repairs and construction of party walls and the maintenance of fences, live hedges, ditches, and drains owned in common, shall be borne by all the owners of the lands or tenements having the party wall in their favor, in proportion to the right of each. Nevertheless, any owner may exempt himself from contributing to this charge by renouncing his part-ownership, except when the party wall supports a building belonging to him.

Art. 663. If the owner of a building, supported by a party wall desires to demolish the building, he may also renounce his part-ownership of the wall, but the cost of all repairs and work necessary to prevent any damage which the demolition may cause to the party wall, on this occasion only, shall be borne by him.

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Art. 664. Every owner may increase the height of the party wall, doing at his own expense and paying for any damage which may be caused by the work, even though such damage be temporary. The expenses of maintaining the wall in the part newly raised or deepened at its foundation shall also be paid for by him; and, in addition, the indemnity for the increased expenses which may be necessary for the preservation of the party wall by reason of the greater height or

depth which has been given it. If the party wall cannot bear the increased height, the owner desiring to raise it shall be obliged to reconstruct it at his own expense and, if for this purpose it be necessary to make it thicker, he shall give the space required from his own land. Art. 665. The other owners who have not contributed in giving increased height, depth or thickness to the wall may, nevertheless, acquire the right of part-ownership therein, by paying proportionally the value of the work at the time of the acquisition and of the land used for its increased thickness. Art. 666. Every part-owner of a party wall may use it in proportion to the right he may have in the co-ownership, without interfering with the common and respective uses by the other co-owners. • Each part-owner can use the party wall only

in proportion to his interest

(d) Easement of Light and View Art. 667. No part-owner may, without the consent of the others, open through the party wall any window or aperture of any kind. • Such act would imply the exercise of the

right of ownership by the use of the entire thickness of the wall. It would be an invasion of the right of the other part owners.

Art. 668. The period of prescription for the acquisition of an easement of light and view shall be counted: (1) From the time of the opening of the window, if it is through a party wall; or (2) From the time of the formal prohibition upon the proprietor of the adjoining land or tenement, if the window is through a wall on the dominant estate.

Art. 669. When the distances in Article 670 are not observed, the owner of a wall which is not party wall, adjoining a tenement or piece of land belonging to another, can make in it openings to admit light at the height of the ceiling joints or immediately under the ceiling, and of the size of thirty centimeters square,

and, in every case, with an iron grating imbedded in the wall and with a wire screen. Nevertheless, the owner of the tenement or property adjoining the wall in which the openings are made can close them should he acquire part-ownership thereof, if there be no stipulation to the contrary. He can also obstruct them by constructing a building on his land or by raising a wall thereon contiguous to that having such openings, unless an easement of light has been acquired.

• Openings allowed are for the purpose of admitting light. They can be made only in the walls of buildings and not in the walls separating gardens or yards because they have no need for such openings

• The period to require the closing of the illegal opening begins to run from the moment such opening is made. But it is only the action to compel the closure which prescribes

• Although action to compel the closing has prescribed, this does not mean servitude has been acquired by person who opened them. Servitude is negative and period for acquisitive prescription will begin to run only from the time that the owner asserting the servitude has forbidden the owner of adjoining tenement from doing something he latter could lawfully do without the servitude.

Art. 670. No windows, apertures, balconies, or other similar projections which afford a direct

view upon or towards an adjoining land or tenement can be made, without leaving a distance of two meters between the wall in which they are made and such contiguous property. Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of sixty centimeters. The nonobservance of these distances does not give rise to prescription. • Direct View— that which is obtained from a

wall parallel to the boundary line, such that from the opening in such wall, it is possible to see the adjoining tenement without the necessity of putting out or turning one’s head

• Side or oblique view—that which is obtained from a wall a an angle with the boundary line such that in order to see the adjoining tenement, it is necessary to put out or turn one’s head to the left or to the right

• Mere opening of windows in violation of the present article does not give rise to the

easement of light and view by prescription. Art. 672. The provisions of Article 670 are not applicable to buildings separated by a public way or alley, which is not less than three meters wide, subject to special regulations and local ordinances.

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Art. 673. Whenever by any title a right has been acquired to have direct views, balconies or belvederes overlooking an adjoining property, the owner of the servient estate cannot build thereon at less than a distance of three meters to be measured in the manner provided in Article 671. Any stipulation permitting distances less than those prescribed in Article 670 is void. Art. 673. Whenever by any title a right has been acquired to have direct views, balconies or belvederes overlooking an adjoining property, the owner of the servient estate cannot build

thereon at less than a distance of three meters to be measured in the manner provided in Article 671. Any stipulation permitting distances less than those prescribed in Article 670 is void. • This article refers to a true servitude.

Acquisition may be through contact, testament, or prescription. Distance may be increased by stipulation of the parties. It may also be extended by prescription.

(e) Drainage of Buildings

Art. 674. The owner of a building shall be obliged to construct its roof or covering in such manner that the rain water shall fall on his own land or on a street or public place, and not on the land of his neighbor, even though the adjacent land may belong to two or more persons, one of whom is the owner of the roof. Even if it should fall on his own land, the owner shall be obliged to collect the water in such a way as not to cause damage to the adjacent

land or tenement. • Falling water is res nullius and has no

owner. Every owner of a house or building would have aright to dispose of it in any manner even to the prejudice of neighbors had it not been for the provisions in this Code

• Last sentence is an exception to Art 637 which requires lower tenements to receive water flowing naturally from higher tenements.

Art. 675. The owner of a tenement or a piece of land, subject to the easement of receiving water falling from roofs, may build in such manner as to receive the water upon his own roof or give it another outlet in accordance with local ordinances or customs, and in such a way as not to cause any nuisance or damage whatever to the dominant estate. • Receive water through

(1) another roof

(2) another outlet • In accordance with local ordinances or

customs • Not a nuisance to the dominant estate Art. 676. Whenever the yard or court of a house is surrounded by other houses, and it is not possible to give an outlet through the house

itself to the rain water collected thereon, the establishment of an easement of drainage can be demanded, giving an outlet to the water at the point of the contiguous lands or tenements where its egress may be easiest, and establishing a conduit for the drainage in such manner as to cause the least damage to the servient estate, after payment of the property indemnity.

(f) Intermediate Distances and

Works for Certain Constructions and Plantings

Art. 677. No constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions required in special laws, ordinances, and regulations relating thereto. Art. 678. No person shall build any aqueduct, well, sewer, furnace, forge, chimney, stable, depository of corrosive substances, machinery, or factory which by reason of its nature or products is dangerous or noxious, without observing the distances prescribed by the regulations and customs of the place, and without making the necessary protective works, subject, in regard to the manner thereof, to the conditions prescribed by such regulations. These prohibitions cannot be altered or renounced by stipulation on the part of the adjoining proprietors. In the absence of regulations, such precautions

shall be taken as may be considered necessary, in order to avoid any damage to the neighboring lands or tenements. Art. 679. No trees shall be planted near a tenement or piece of land belonging to another except at the distance authorized by the ordinances or customs of the place, and, in the absence thereof, at a distance of at least two meters from the dividing line of the estates if tall trees are planted and at a distance of at least fifty centimeters if shrubs or small trees are planted. Every landowner shall have the right to demand that trees hereafter planted at a shorter distance from his land or tenement be uprooted. The provisions of this article also apply to trees which have grown spontaneously. (591a) Art. 680. If the branches of any tree should extend over a neighboring estate, tenement, garden or yard, the owner of the latter shall

have the right to demand that they be cut off insofar as they may spread over his property, and, if it be the roots of a neighboring tree which should penetrate into the land of another, the latter may cut them off himself within his property.

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• Owner of the neighboring tenement can cut the roots without necessity of notice to the owner of the trees. But as to the branches, it is necessary to as that they be cut.

Art. 681. Fruits naturally falling upon adjacent land belong to the owner of said land.

(g) Easement against Nuisance

Art. 682. Every building or piece of land is subject to the easement which prohibits the

proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes. Art. 683. Subject to zoning, health, police and other laws and regulations, factories and shops may be maintained provided the least possible annoyance is caused to the neighborhood. Nuisance—that class of wrongs which arise from unreasonable, unwarranted, or unlawful use by a person of his own property and which produces material annoyance, inconvenience, discomfort, or harm that the law will presume a consequent damage. • Whether the effects of the use of one’s

property constitutes a nuisance depends upon the circumstances. Their penetration into another tenement in a limited measure is permissible. Even if these effects cause material injury, they would constitute a

nuisance if they result from the utilization of a tenement in a manner which is usual or current in the locality.

(h) Easement of Lateral and Subjacent Support

Art. 684. No proprietor shall make such excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support. • Owner has a right to excavate on his own

land up to the boundary line of the building land. This easement prevents him from excavating so close as to deprive the adjoining estate of its natural support and cause it to crumble.

• Person excavating instead of observing a sufficient distance to permit necessary lateral support of adjoining land may support the latter artificially of any material provided it is sufficient support

• There are cases where surface belongs to one person and substrata may belong to or be lawfully used by others. This is where easement of subjacent support exists. Owners of rights below the surface may excavate but this imposes upon them the duty to refrain from removing such

sufficient support which will protect the surface from subsiding

Remedies for violation: (1) Action for damages (2) Injunction • Action may be maintained against anyone

who causes the injury whether he is the owner or not. Contractor is liable jointly with the owner of the land. It is the person who made the excavation which causes the injury and not the person in possession

when the injury occurs, who is liable for damages.

Art. 685. Any stipulation or testamentary provision allowing excavations that cause danger to an adjacent land or building shall be void. Art. 686. The legal easement of lateral and subjacent support is not only for buildings standing at the time the excavations are made but also for constructions that may be erected. Art. 687. Any proprietor intending to make any excavation contemplated in the three preceding articles shall notify all owners of adjacent lands. • Notice enables the adjoining owner to take

the necessary precautions to protect their lands and buildings. It must be sufficient to inform the nature and the extent of the proposed excavation.

• Although person making the excavation has

given notice, he is bound to exercise reasonable care and skill so as not to cause damage.

VOLUNTARY EASEMENTS

Art. 688. Every owner of a tenement or piece of land may establish thereon the easements which he may deem suitable, and in the manner and form which he may deem best, provided he does not contravene the laws, public policy or public order. Art. 689. The owner of a tenement or piece of

land, the usufruct of which belongs to another, may impose thereon, without the consent of the usufructuary, any servitudes which will not injure the right of usufruct. Art. 690. Whenever the naked ownership of a tenement or piece of land belongs to one person and the beneficial ownership to another, no perpetual voluntary easement may be established thereon without the consent of both owners. Art. 691. In order to impose an easement on an undivided tenement, or piece of land, the consent of all the co-owners shall be required.

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The consent given by some only, must be held in abeyance until the last one of all the co-owners shall have expressed his conformity. But the consent given by one of the co-owners separately from the others shall bind the grantor and his successors not to prevent the exercise of the right granted. Art. 692. The title and, in a proper case, the possession of an easement acquired by prescription shall determine the rights of the

dominant estate and the obligations of the servient estate. In default thereof, the easement shall be governed by such provisions of this Title as are applicable thereto. Art. 693. If the owner of the servient estate should have bound himself, upon the establishment of the easement, to bear the cost of the work required for the use and preservation thereof, he may free himself from this obligation by renouncing his property to the owner of the dominant estate. Who may establish them: • The OWNER possessing capacity to

ENCUMBER property may constitute voluntary servitudes. (Art. 688)

• The usufructuary, and even the possessor in good faith, does not have the right to do so because the creation of a servitude is a disposition of part of the right of ownership, and no one but an owner may do this.

• A general capacity to contract is not sufficient.

• If there are various owners, ALL must CONSENT, but consent once given is irrevocable. (Art. 690 and 691)

• Hence, their consent need not be simultaneous.

In whose favor they are established: (a) Praedial Servitudes

• For the owner of the dominant estate • For any other person having any

juridical relation with the dominant estate, if the owner ratifies it.

(b) Personal Servitudes • For anyone capacitated to accept

In case of property under usufruct • The usufructuary must not be prejudiced

(Art 689) Rights and Obligations • These are determined by the—

(1) Title, and

(2) Possession (in case of prescription enlarging or diminishing the initial voluntary easement) (Art. 692)

• Where the owner bound himself to pay for the maintenance or do some service he may abandon his tenement and relieve himself of his obligation (Art. 693)

• To produce the transmission of ownership over the tenement abandoned, the abandonment must be made in the proper juridical form required for the transmission of the ownership of immovable property.

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NUISANCE Art. 694. A nuisance is any act, omission,

establishment, business, condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property. • To constitute a nuisance there must be an

arbitrary or abusive use of property or disregard of commonly accepted standards set by society

Classification of Nuisance Nature

1. Nuisance Per Se or at Law 2. Nuisance Per Accidens or in Fact

Scope Of Their Injurious Effects

1. Public 2. Private 3. Mixed

Nuisance Per Se (Nuisance at Law) • It is an act, occupation, or structure which is

a nuisance at all times and under any circumstances, REGARDLESS OF LOCATION OR SURROUNDINGS.

Nuisance Per Accidens (Nuisance in Fact) • One that becomes a nuisance by reason of

circumstances and surroundings • e.g. slaughter house Public Nuisance • It causes hurt, inconvenience, or injury to the

public, generally, or to such part of the public as necessarily comes in contact it

• public nuisance=common nuisance • It is a direct encroachment upon public rights

or property which results injuriously to the public

Private Nuisance • One which violates only private rights and

produces damages to but one or a few persons

Attractive Nuisance dangerous instrumentalities or appliances of a character likely to attract children in play, the

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owner of which, who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. (Hidalgo v Balandan) - The attractive nuisance doctrine generally is

not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location.

Distinction Between Public and Private Nuisances Test- not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights- the fact that it is in a public place and annoying to all who come within its sphere Liability of Creator of Nuisance • General Rule: he who creates a nuisance is

liable for the resulting damages and, ordinarily, his liability continues as long as the nuisance continues.

• He whose duty is to abate a nuisance should answer for the consequences resulting from its continuance

• No one is to be held liable for a nuisance which he cannot himself physically abate

• All parties to the creation or maintenance of a nuisance per se are responsible for its effect

without limitation of conditions or of time. Liability of Transferees • To render him liable, he must knowingly

continue the nuisance, and generally, he is not liable for continuing it in its original form, unless he has been notified of its existence and requested to remove it, or has actual knowledge that it is a nuisance and injurious to the rights of others.

Nature of Liability • All persons who join or participate in the

creation or maintenance of a nuisance are liable solidarily

Art. 697. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. Art. 698. Lapse of time cannot legalize any nuisance, whether public or private. No Prescription

• The creation and maintenance of a public nuisance is punishable criminally hence, the element of criminality, which characterizes the acts of creating the nuisance, should prevent the acquisition of a right to maintain it.

Art. 699. The remedies against a public nuisance are: (1) A prosecution under the Penal Code or any local ordinance: or (2) A civil action; or (3) Abatement, without judicial proceedings. Criminal Prosecution • Only for a public nuisance, and not for a

private nuisance • Criminal intent may be immaterial

Judgment With Abatement Extrajudicial Abatement • In the exercise of the POLICE POWER, the

State may authorize its officers summarily to abate public nuisances without resort to legal proceedings and without notice or hearing

Art. 700. The district health officer shall take care that one or all of the remedies against a public nuisance are availed of. Art. 701. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be commenced by the city or municipal mayor. Art. 702. The district health officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against a public nuisance.

Art. 703. A private person may file an action on account of a public nuisance, if it is specially injurious to himself. Special Injury to Individual • GENERAL RULE: a public nuisance gives no

right of action to any individual but must be abated by a proceeding instituted in the name of the State

• EXCEPTION: an individual who suffered some special damage by reason of a public nuisance, different from that sustained by the general public, may maintain a suit in equity for an injunction to abate it, or an action for damages

• In other words, a public nuisance is not actionable by an individual unless and until it becomes as to him, a private nuisance; i.e., until he suffers some special and definite harm.

Art. 704. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying

the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary: (1) That demand be first made upon the owner or possessor of the property to abate the nuisance; (2) That such demand has been rejected;

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(3) That the abatement be approved by the district health officer and executed with the assistance of the local police; and (4) That the value of the destruction does not exceed three thousand pesos. Right of Individual to Abate a Public Nuisance Requisites

1. Must be exercised only in cases of urgent or extreme necessity

2. Nuisance must be actually existing at the

time when abatement is undertaken 3. The summary abatement should be

resorted to within a reasonable time after knowledge of the nuisance is acquired or should have been acquired by the person entitled to abate

4. Must give a reasonable notice of his intention; the code expressly mentions that a demand must be made

5. The means employed must be reasonable 6. The abatement must be approved by the

district health officer 7. The property must not be destroyed

unless it is absolutely necessary to do so; the civil code, however, provides a limitation, that the value of destruction shall not exceed three thousand pesos

8. The right must always be exercised with the assistance of the local police

Art. 705. The remedies against a private nuisance are: (1) A civil action; or

(2) Abatement, without judicial proceedings. Right to Damages • A person may maintain an action at law for

damages caused by a nuisance • The payment of damages is generally a mere

reparation for past injuries, and not an authority to continue the wrong.

• If the nuisance is temporary or recurrent in character, each repetition of it gives rise to a new cause of action, and successive actions will lie

Defenses to Action • The defendant in an action for damages by

reason of a nuisance may set up the following defenses:

• Public Necessity- Private interest must yield to the public good

• Estoppel-One who voluntarily places himself in a situation whereby he suffers an injury will not be heard to say that his damage is due to a nuisance maintained by another.

Art. 706. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private person be followed.

Who may sue on Private Nuisances • Possession alone of real estate is sufficient to

sustain an action to recover damages for the maintenance of a nuisance upon adjoining property in such manner as to injure the enjoyment of the former

• Ownership of the legal title is not necessary Art. 707. A private person or a public official extrajudicially abating a nuisance shall be liable for damages:

(1) If he causes unnecessary injury; or (2) If an alleged nuisance is later declared by the courts to be not a real nuisance. Remedies of Property Owner • A person whose property is seized or

destroyed as a nuisance may resort to the courts for the purpose of determining whether or not it was in fact a nuisance

• He may bring an action for replevin, or enjoin its sale and damages if it is has been sold; or action to enjoin private parties from proceeding to abate a supposed nuisance

__________________________________ REGISTRY OF PROPERTY

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

• A register signifies the act of annotation, and includes the book of memorandum where this notation is made; by extension is also means the office where these annotations are made

• The Registry of Real Property may be defined as a public center where the true condition of real estate is made clear by registering all transferable title of ownership and of real rights which affect it and even where the capacity of free disposition on the part of an individual is modified

Purposes of the Principle of Publicity • To give notice of the true status of the

property • To record transmissions and modifications of

real rights • To prevent fraud • To guarantee the effectivity of rights Art. 709. The titles of ownership, or of other rights over immovable property, which are not duly inscribed or annotated in the Registry of Property shall not prejudice third persons.

Who are third persons • Where the law speaks of “prejudice to a third

person,” it refers to one who has not participated in the act or contract that was registered

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• Where the law states that a “third person cannot be prejudiced,” it refers to one who bases his right on a registered title

• A person who has actual knowledge may be

bound without registration • The owner is not a “third person” within the

meaning of this principle Art. 710. The books in the Registry of Property shall be public for those who have a known interest in ascertaining the status of the

immovables or real rights annotated or inscribed therein. • The word “public” is a comprehensive, all-

inclusive term. Properly construed, it embraces every person. The interest need not be of a pecuniary character.

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

DIFFERENT MODES OF ACQUIRING

OWNERSHIP TITLE - the remote cause of acquisition Every juridical right which gives a means to the acquisition of real rights but which in itself is insufficient MODE- the proximate cause of acquisition The specific cause which produces dominion and other real rights as a result of the co-existence of special status of things, capacity, and intention of persons and fulfillment of the requisites of law Modes of acquiring ownership

1) Occupation 2) Intellectual Creation

3) Donation 4) Prescription 5) Succession 6) Tradition

OCCUPATION

There should be a corporeal thing (tangible) which must have a “corpus” (body) & that thing should have no owner There must be actual occupancy; thing must be subjected to one’s control/disposition There must e an intention to occupy

Accomplished according to legal rules What are the things susceptible to occupation?

• things that are w/o owner – res nullius; abandoned

• stolen property cannot be subject of occupation

• animals that are the object of hunting & fishing

Kinds of animals: a) wild – considered res nullius when not

yet captured; when captured & escaped – become res nullius again b) domesticated animals – originally wild

but have been captured & tamed; now

belong to their capturer; has habit of returning to premises of owner; becomes res nullius if they lose that habit of returning & regain their original state of freedom

c) domestic/tame animals – born & ordinarily raised under the care of people; become res nullius when abandoned by owner • hidden treasure (only when found

on things not belonging to anyone) • abandoned movables

• Animals:

a) Swarm of bees - owner shall have right to pursue

them to another’s land (owner to identify latter for damages, if any)

- land owner shall occupy/retain the bees if after 2 days, owner did not pursue the bees

b) Domesticated animals - may be redeemed within 20 days

from occupation of another person; if no redemption made, they shall pertain to the one who caught them

c) Pigeons & fish - when they go to another breeding

place, they shall be owned by the new owner provided they are not enticed

• Movables: 1) Treasure found on another’s property

- consist of (1) money, precious objects & 2) hidden & owner is unknown

- finding must be by chance in order that stranger may be entitled to ½ of the treasure

2) Movable found w/c is not treasure - must be returned to owner - if finder retains the thing found –

may be charged with theft - if owner is unknown, give to

mayor; mayor shall announce

finding of the movable for 2 weeks in way he deems best

- of owner does not appear 6 months after publication, thing found shall be awarded to finder

- if owner appears, he is obliged to pay 1/10 of value of property to finder as price

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- if movable is perishable or cannot be kept w/o deterioration or w/o expenses it shall be sold at public auction 8 days after the publication

What cannot be acquired by occupation

Ownership of a piece of land • because when a land is without an

owner, it pertains to the state • land that does not belong to anyone is

presumed to be public land • but when a property is private and it is

abandoned – can be object of occupation

INTELLECTUAL CREATION The creator of the property is exclusive owner and has the right to keep it to himself UNTIL the work is made public • When work is made public, he loses this

exclusive right unless the work is copyrighted or patented

• A creator cannot be compelled to make his work public

• RULE: “Every new and innocent product of mental labor, which has been embodied in writing, or some other material form, while it remains unpublished, is the exclusive property of its author, entitled to the same protection which the law throws around the possession and enjoyment and other kinds of property”

• When his rights are violated, he is entitled to the same remedies as the owner of any personal property may have

• The painter, sculptor or other artist shall

have dominion over the product of his art even before it is copyrighted.

• The scientist or technologist has the

ownership of his discovery or invention even before it is patented.

• Authors of literary and artistic works cannot prevent its broadcast as they have a moral and educational value but they can demand that their names be mentioned; oppose any modification; receive an equitable remuneration, and others

• A production by an employee in relation to his work is his (e.g. professor’s literary work)

• Photos taken by a photographer for his benefit and not as requested by a subject is his.

• Plans created by an architect for value for a client is owned by the client

Dual interest or property right in letters

sent by one to another person

1. Intellectual Property • Thoughts and ideas and their form of

expression contained in the letter 2. Material or Physical Thing

• The paper and the impression made thereon by the mechanical means of writing that has been employed

• Publication of a letter cannot be made without the consent of the sender unless for the public good or in the interest of justice

PRESCRIPTION It is the mode by which one acquires ownership and other real rights thru lapse of time; also a means by which one loses ownership, rights &

actions; retroactive from the moment period began to run

Kinds: 1. Acquisitive 2. Extinctive

Comparison between Acquisitive Prescription and Extinctive Prescription

Acquisitive Prescription

Extinctive Prescription

Usurpacion Prescription

It is the possessor who does the act

One looks at the neglect of the owner/ his omission

Expressly vests the property and raised a new title in the

occupant

Statute of limitation that merely bars the right of action

Important feature is the claimant in possession

Important feature is the owner out of possession

Who may acquire by prescription:

a. person who are capable of acquiring property by other legal modes

b. STATE c. minors – through guardians of

personally Against whom prescription run:

1. minors & incapacitated person who have guardians

2. absentees who have administrators 3. persons living abroad who have

administrators

4. juridical persons except the state with regard to property not patrimonial in character

5. between spouses (husband & wife) 6. between parents & children (during

minority/insanity) 7. between guardian & ward (during

guardianship) 8. between co-heirs/co-owners 9. between owner of property &

person in possession of property in concept of holder

Things subject to prescription: all things within the commerce of men

a. private property b. patrimonial property of the state

Things not subject to prescription:

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1. public domain 2. intransmissible rights (e.g. probate of a

will) 3. movables possessed through a crime 4. registered land

Renunciation of prescription:

• persons with capacity to alienate may renounce prescription already obtained but not the right to prescribe in the future

• may be express or tacit

• prescription is deemed to have been tacitly renounced; renunciation results from the acts w/c imply abandonment of right acquired

• creditors & persons interested in making prescription effective may avail themselves notwithstanding express or tacit renunciation

Prescription of Ownership & Other Real Rights

Kinds of Acquisitive prescription 1. ordinary 2. extra-ordinary

Requisites for ordinary prescription:

1. possession in good faith 2. just title 3. within time fixed by law

• 4 years for movables • 8 years for immovables

4. in concept of an owner 5. public, peaceful, uninterrupted

Requisites for extra-ordinary prescription:

1. just title is proved 2. within time fixed by law

• 10 years for movables • 30 years for immovables

3. in concept of an owner 4. public, peaceful, uninterrupted

• GOOD FAITH- Reasonable belief that person

who transferred thing is the owner & could

validly transmit ownership -Must exist throughout the entire period required for prescription

• JUST TITLE (TRUE & VALID) – must be

proved & never presumed a) Titulo Colorado - b) Titulo putativo - • title must be one which would have

been sufficient to transfer ownership if grantor had been the owner

• through one of the modes of transferring ownership but there is vice/defect in capacity of grantor to transmit ownership

• IN CONCEPT OF OWNER

• possession not by mere tolerance of owner but adverse to that of the owner

• claim that he owns the property

• PUBLIC, PEACEFUL & UNINTERRUPTED • Must be known to the owner of the

thing • Acquired & maintained w/o

violence • Uninterrupted (no act of

deprivation by others) in the

enjoyment of property Interruption a) Natural -through any cause, possession ceases for more than 1 year -if 1 year of less – as if no interruption b) Civil -produced by judicial summons; except

• void for lack of legal solemnities • plaintiff desist from complaint/allow

proceedings to lapse • possessor is absolved from complaint

i. express or tacit renunciation ii. possession in wartime

• RULES IN COMPUTATION OF PERIOD: a. Present possessor may tack his

possession to that of his grantor or predecessor in interest

b. Present possessor presumed to be in continuous possession I intervening

time unless contrary is proved c. First day excluded, last day included

Tacking Period • there must be privity between previous &

present possessor • possible when there is succession of rights • if character of possession different: predecessor in bad faith possessor in good

faith – use extraordinary prescription

Prescription of Actions

By lapse of time fixed by law • 30 years

-action over immovables from time possession is lost

• 10 years -mortgage action -upon written contract -upon obligation created by law -upon a judgement

• 8 years -action to recover movables from time possession is lost

• 6 years -upon an oral contract -upon a quasi-contract

• 5 years

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-actions where periods are not fixed by law

• 4 years -upon injury to rights of plaintiff -upon a quasi-delict

• 1 year -for forcible entry & detainer -for defamation

Rights not extinguished by prescription:

1. demand right of way 2. abate public /private nuisance

3. declare contract void 4. recover property subject to expressed

trust 5. probate of a will 6. quiet title

TRADITION Requisites:

1. Pre-existence of right in estate of grantor 2. Just cause or title for the transmission 3. Intention- of both grantor and grantee 4. Capacity- to transmit and to acquire 5. An act giving it in outward form,

physically, symbolically, or legally

Legal Maxim: “Non nudis pactis, sed tranditione, dominia rerum transferentur” (Not by mere agreement but by delivery, is ownership transferred) Kinds of Tradition: a. Real Tradition b. Constructive Tradition

i. Symbolic Delivery ii. Delivery by Public Instrument iii. Traditio Longa Manu- “long hand”;

placed in the sight of vendee so that he

can take possession of the property anytime

iv. Traditio Brevi Manu- “short hand”; transferee already in possession of the property but not as owner

v. Traditio Constitum Possessorium- owner remains in possession but not as owner e.g. lease

vi. Quasi-Tradition- subject matter: property right; e.g. right to collect credit

vii. Tradition by operation of law

SUCCESSION-testate and intestate DONATION

DONATION

Characteristics: a) Unilateral – obligation imposed on the

donor b) Consensual – perfected at time donor

knows of acceptance Requisites of Donation:

1. Reduction in patrimony of donor

2. Increase in patrimony of donee 3. Intent to do act of liberality 4. Donor must be owner of property

donated Requirements of a donation:

1. subject matter – anything of value; present property & not future, must not impair legitime

2. causa – anything to support a consideration: generosity, charity, goodwill, past service, debt

3. capacity to donate & dispose & accept donation

4. form – depends on value of donation Kinds of Donation according to

Effectivity: Acceptance

a) acceptance must be made personally or thru agent

b) donation may be made orally or in

writing • movable: i. 5,000 & below – may be oral or

written, if oral it must be with simultaneous delivery of thing/document & acceptance need not be in writing

ii. above 5,000 - must be written and accepted also in writing

• immovable - must be in a public instrument & acceptance must also be in a public instrument (in same instrument or in other instrument)

Donation Inter Vivos Donation Mortis Causa

Disposition and acceptance to take effect during lifetime of donor and donee

Disposition happens upon the death of donor

Already pertains to the donee unless there is a contrary intent

Even if there is a term of effectivity and effectivity is upon the death of the donor, still entitled to

fruits

Formalities required - follow law on donations and certain kinds of donations & law on obligations and contracts (suppletory)

Formalities required - follow law on succession to be valid, and donation must be in the form of a will

Irrevocable at the instance of the donor; may be revoked only by reasons provided by law

Revocable ad mutuum (exclusive will of donor)

Revoked only for reasons provided for by law (except onerous donations)

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• In case of doubt with regards to nature of donation: inter vivos

Badges of mortis causa:

1. Title remains with donor (full or naked ownership)& conveyed only upon death

2. Donor can revoked ad mutuum 3. Transfer is void if transferor survives

transfer Kinds of donation INTER VIVOS

1) pure/simple

2) remuneratory 3) conditional 4) onerous

Who may give donations

-All persons who may contract and dispose of their property

Who may accept donations:

1. natural & juridical persons w/c are not especially disqualified by law

2. minors & other incapacitated

a) by themselves

- if pure & simple donation

- if it does not require written acceptance b) by guardian, legal representatives if needs

written acceptance i.. natural guardian – not

more than 50,000 ii. court appointed - more than 50,000

iii. conceived & unborn child, represented by person who would have been guardian if already born

Who are disqualified to donate: 1. guardians & trustees with respect to property entrusted to them 2. husband & wife 3. between paramours/persons guilty of adultery 4. between parties guilty of same criminal offense 5. made to public officers, wife, descendant, ascendant Other persons disqualified to receive donations: 1. priest who heard confession of donor during

his last illness

2. relatives of priest within 4th degree, church,

order, community where priest belongs 3. physician, nurse, etc. who took care of

donor during his last illness 4. individuals, corporations, associations not

permitted

What may be given: • All or part of donor’s present property

provided he reserves sufficient means for the support of the ff:

• himself • relatives who by law are entitled to his

support • legitimes shall not be impaired • when w/o reservation or if inofficious,

may be reduced on petition of persons affected

• except: conditional donation & donation

mortis causa • except: future property

Double Donations Rule: Priority in time, priority in right 1. If movable – one who first take possession in good faith 2. If immovable – one who recorded in registry of property in good faith

- no inscription, one who first took possession in good faith - in absence thereof, one who can present oldest title

Revocation of Donations

- applies only to donation inter vivos - not applicable to onerous donations

• With regards to donations made by person

without children or descendants at time of donation: 1. If donor should have legitimate,

legitimated or illegitimate children 2. If child came out to be alive & not dead

contrary to belief of donor 3. If donor subsequently adopts a minor

child • Action for revocation based on failure to

comply with condition in case of conditional donations

• Action for revocation by reason of ingratitude 1. Donee commits offense against person,

honor, property of donor, spouse, children under his parental authority

2. Donee imputes to donor any criminal offense or any cat involving moral turpitude even if he should prove it unless act/crime has been committed against donee himself, spouse or children under his parental authority

3. Donee unduly refuses to give support to donor when legally or morally bound to give support to donor

Exception to rule on intransmissibility of action with regards to revocation due to ingratitude:

1. personal to the donor; general rule is heir cannot institute if donor did not institute

2. heirs can only file in the ff cases:

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a) donor has instituted proceedings but dies before bringing civil action for revocation

b) donor already instituted civil action but died, heirs can substitute

c) donee killed donor or his ingratitude caused the death of the donor

d) donor died w/o having known the ingratitude done

e) criminal action filed but abated by death

3. can only make heirs of donee liable if complaint was already filed when donee died

Inofficious donations:

1. shall be reduced with regards to the excess

2. action to reduce to be filed by heirs who have right to legitimate at time of donation

3. donees/creditors of deceased donor cannot ask for reduction of donation

4. if there are 2 or more donation: recent ones shall be suppressed

5. if 2 or more donation at same time – treated equally & reduction is pro rata but donor may impose preference which must be expressly stated in donation

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Kinds of Donation

Pure/Simple Remuneratory Conditional Onerous

a) Consideration Merits of donee

Liberality or merits of donee or burden/ charge of past services provided they do not constitute demandable debt

Valuable consideration is imposed but value is less than value of thing donated

Valuable consideration given

b) law to apply/ forms Law on donations

Law on donations Extent of burden Law on obligations imposed>oblicon excess>donation

c) form of acceptance Required

Required Required Required

d) reservation w/regards to personal support & legitime Applicable

Applicable Applicable Not Applicable

e) warranty against eviction & hidden defects In bad faith only

In bad faith only

In bad faith only

Applies

f) revocation Applicable

Applicable

Applicable

Applicable

Modes of Extinguishment

BIRTH OF CHILD NON-FULFILLMENT OF CONDITION

INGRATITUDE

Ipso jure revocation, no need for action., court decision is merely declaratory

needs court action needs court action

Extent: portion which may impair legitime of heirs

Extent: whole portion but court may rule partial revocation only

Extent: Whole portion returned

Property must be returned Property in excess Property to be returned

Alienation/mortgages done prior to recording in Register of

Deeds: If already sold or cannot be returned – the value must be returned If mortgaged – donor may redeem the mortgage with right to recover from donee

Alienations/mortgages imposed are void unless registered with Register of Deeds

Prior ones are void; demand value of property when alienated and can’t be recovered or redeemed from 3rd persons

Fruits to be returned at filing of action for revocation

Fruits to be returned at filing of complainant

Prescription of action is 4 years from birth, etc.

Prescription is 4 years from non-fulfilment

Prescription is 1 year from knowledge of fact and it was possible for him to bring action

Action cannot be renounced Action cannot be renounced in advance

Right of action transmitted to

heirs

Right of action at instance of

donor but may be transmitted to heirs

Heirs can’t file action

Action extends to donee’s heirs Action does not extend to donee’s heirs

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LEASE

General Characteristics of Every Lease (1) Temporary duration (2) Onerous (3) Price is fixed according to contract

duration Kinds of Lease

(1) Lease of things—movables and immovables

• One of the parties binds himself to give

to another the enjoyment or use of a thing for a price certain, and for a period which may be definite or indefinite; however, no lease for more than 99 years shall be valid

(2) Lease of work or contract of labor • One of the parties binds himself to

execute a piece of work or render to the other some service for a price certain, but the relation of principal and agent does not exist between them.

• Contract of labor is a contract sui generis, partaking of the nature of a partnership in which capital and the laborer have their respective shares.

(3) Lease of Services • There is no principle of representation

unlike in agency • Price exists and agency is presumed to

be gratuitous • The will of both parties is necessary for

the extinguishment of the obligation

(i)

Lease of Service

Contract for a piece of work

Manner of paying the price

The price is paid in relation to the duration of the labor or service

In proportion to the work accomplished

Existence of a relation of dependence between lessor and lessee

If the lessor workstation under the direction of the lessee, receiving instructions from him on the manner of rendering service

or labor

If the lessor works by himself, independently of the lessee, in the manner he deems most adequate for the execution of the

work

Lease of things

(1) Concept Art. 1643. In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing for a price certain, and for a period which may be definite or indefinite. However, no lease for more than ninety-nine years shall be valid.

(2) Consumable things cannot be the subject matter of lease, Except (a) consumables only for display or

advertising. (lease ad pompam et ostentationem) eg. Wedding cakes for display in Goldilocks, wine in a showcase of a store

(b) goods are accessory to an industrial establishment e.g., coal in a factory

(3) Special characteristics of lease of things;

(a) essential purpose is to transmit the use and enjoyment of a thing

(b) consensual (c) onerous

(d) price fixed in relation to period of use or enjoyment

(e) temporary

(4) Lease distinguished from sale, usufrunct, commodatum

In case of doubt-INTENTION of the parties should be the guide in determining the contract entered into.

Lease Sale

Only the use or enjoyment of the things is transferred, and only for a determinate period

Plain redundancy to fix or mention the price of the thing which is the subject-matter thereof

Price of the thing was fixed in the contract

May be in money, or in fruits, or in some other useful thing or some other prestation

Price must be in money or its equivalent

Lease Usufruct

Real right only by exception: when registered and for more than 1 year

Always a real right

Constitutor/Lessor need not be an owner e.g. sublessor, usufruct

To constitute usufruct, constitutor must be the owner

Lessor places and maintains lessee in the enjoyment of the thing

Owner merely allows usufructuary to use and enjoy the property

Use is limited to that written in the contract

Includes all possible uses and manner of enjoyment of property EXCEPT in distinction of normal or abnormal usufruct

Must be definite, otherwise court may fix the same through the proper action

Maybe for an indefinite period of time

BOTH the lessee and the usufructuary USE and ENJOY the thing.

Lease Commodatum

Consists in the cessation of the use of a thing to another but this is essentially onerous

Consists in the cessation of a thing to another but this is essentially gratuitous

BOTH consist in the cession of the use of a thing

to another

(5) Price In Lease • Price may be in money, or in fruits, or in

some other useful things. • May also be in some other prestation • When it consists in fruits or products, it

may be a determinate or fixed quantity or an aliquot part or percentage of the produce of the tenement. It may be variable at different periods within the duration of the lease.

• When the price consists of a certain percentage of the fruits obtained from the thing, the contract is to be regarded as a TENANCY CONTRACT, which is generally regarded as an important variation of the contract of lease. But is regarded as having the character more of a partnership rather than a lease.

Amount of Rent • The price of the lease, or rent, must be

serious or substantial so as not to be so insignificant to indicate an intention of liberality on the part of the owner, and to

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receive such liberality on the part of the party.

• If the parties are not able to fix the price, or the basis for its determination, the contract is ABSOLUTELY VOID. If the lessee has entered upon the possession and enjoyment of the thing, he will be liable for the damages for the occupation of the thing.

(6) Period of lease • A lease of things during the lifetime of

one of the parties is considered valid. • When the lease is for such time as the

lessor or lessee may please, it is considered as on for life, ending upon the death of the party who would have terminated the contract.

• CANNOT be perpetual- there must always be a period, which may be definite or indefinite (a) definite period-not more than 99

years. The Civil Code allows leases of property for not more than 99 years, so that a lease made for more than 99 years, shall be considered as terminated after the end of 99 years. After that period, it will be a lease for an indefinite period.

(b) indefinite period • If the period is indefinite, and the

thing leased is rural land, art.1682 shall apply; if it is urban land art.

1687 governs. • If the thing is neither rural nor urbam

land, the provisions of the two articles should be applied by analogy. (i) rural land

Art. 1682. The lease of a piece of rural land, when its duration has not been fixed, is understood to have been for all the time necessary for the gathering of the fruits which the whole estate leased may yield in one year, or which it may yield once, although two or more years have to elapse for the purpose.

(ii) urban land Art. 1687. If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even though a monthly rent is paid, and no period for

the lease has been set, the courts may fix a longer term for the lease after the lessee has occupied the premises for over one year. If the rent is weekly, the courts may likewise determine a longer period after the lessee has been in possession for over six months. In case of daily rent, the courts may also fix a longer period after the lessee has stayed in the place for over one month. Capacity of Lessee • As a rule, any person with the capacity to

enter into contracts can be a lessee. • However, those who are disqualified to buy

certain things cannot lease such things. ( ART. 1646, 1490,1491)

Contract May Be Implied • Where one has rendered services to another,

and these are accepted by the latter, in the absence of proof that the service was

rendered gratuitously, an obligation results to

pay the reasonable worth of the service rendered upon the implied contract of hiring.

• Although no fixed amount may have been determined as the consideration for the contract of hiring, the contract is nevertheless valid if the amount of the implied compensation can be determined by CUSTOM or frequent use in the place where the service was rendered.

Lease of Real Estate • Every lease of real estate may be recorded in

the Registry of Property. • Unless a lease is recorded, it shall not be

binding upon third persons. • If the lease is to be recorded in the Registry

of Property, a proper authority to constitute the same is necessary for some persons. Eg. Husband to wife’s paraphernal property; guardian to ward’s property

Purchase of Leased Land • Where a purchaser of land at the time of the

purchase has FULL KNOWLEDGE of the fact that the land has been leased to a third person and is informed of the terms of such a lease, he is BOUND to respect said lease, although it is not recorded upon the certificate of title, and it is not error to hold the lease in effect became part of the contract of sale.

(7) Assignment of lease

Art. 1649. The lessee cannot assign the lease without the consent of the lessor, unless there is

a stipulation to the contrary.

• The lessee cannot assign the lease without the consent of the lessor unless, there is a stipulation to the contrary.

• It involves the transfer of rights and obligations thus, the consent of the lessor is necessary.

• However, a mere transfer of rights of the lessee, and not of the contract itself, would not require the lessor’s consent, unless there is an express stipulation to the contrary. • The consent of the lessor would be

necessary for the validity of mortgage of a lease.

(8) Sublease

Art. 1650. When in the contract of lease of things there is no express prohibition, the lessee may sublet the thing leased, in whole or in part, without prejudice to his responsibility for the performance of the contract toward the lessor.

Assignment of lease Sublease There is a transfer to a third person of the rights and obligations arising from the lease contract

Merely another contract of lease, where the original lessee becomes in turn a lessor

A sale of the lessee’s rights, and when the lessor gives his consent, the original lessee is released

Even when the lessor consents to the sub-lease, the original lease contract subsists and is binding on the lessee

Succession by particular title to one contract of lease

Juxtaposition of 2 leases

• Effects

(1) When the lessee subleases the property in spite of a prohibition to do so, he violates the contract, and the lessor can ask for recission and damages, or damages only.

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• The violation takes place when the lessee palces the thing at the disposal of the sublesee.

• The lessee cannot justify the breach of contract by proof that the sublessee is solvent and of good standing.

(2) When in the contract of lease, there

is no express prohibition, the lessee may sublet the thing leased, in whole or in part, without prejudice to his

responsibility for the performance of the contract toward the lessor.

(a) House Rental Law (RA 877)—there is a

presumption that there would be no sublease unless the lessor allows it

(b) obligation of sublessee to lessor Art. 1651. Without prejudice to his obligation toward the sublessor, the sublessee is bound to the lessor for all acts which refer to the use and preservation of the thing leased in the manner stipulated between the lessor and the lessee.

(i) for rents Art. 1652. The sublessee is subsidiarily liable to the lessor for any rent due from the lessee. However, the sublessee shall not be responsible beyond the amount of rent due from him, in accordance with the terms of the sublease, at the time of the extrajudicial demand by the lessor.

Payments of rent in advance by the sublessee shall be deemed not to have been made, so far as the lessor's claim is concerned, unless said payments were effected in virtue of the custom of the place.

• Subsidiarily liable to the lessor for

any rent due from the lessee • The sublessee shall not be

responsible beyond the amount of rent due from him, in accordance with the terms of the sublease, at the time of the extrajudicial demand by the lessor.

• Payment of rent in ADVANCE by the sublessee shall be deemed not to have been made, so far as the lessor’s claim is concerned, UNLESS said payments were effected by virtue of the custom of the place.

(ii) for the use and preservation of the

thing leased • Without prejudice to his obligation

toward the sublessor, the sublessee is bound to the lessor for all the acts which refer to the use and preservation of the thing leased in the manner stipulated between the lessor and the lessee.

(9) Rights and obligations of lessor and

lessee (a) obligation of lessor

Art. 1654. The lessor is obliged: (1) To deliver the thing which is the object of the contract in such a condition as to render it fit for the use intended; (2) To make on the same during the lease all the necessary repairs in order to keep it suitable for the use to which it has been devoted, unless there is a stipulation to the contrary; (3) To maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire duration of the contract.

(i) Warranty of Lessor

• The provisions governing warranty contained in the Title on Sales, shall be applicable to the contract of lease.

• IN the cases where the return of the price is required, REDUCTION shall be made in proportion to the time during which the lessee enjoyed the thing.

• Art. 1547, 1555, 1561, 1566, 1567, 1568, 1569

• A warranty is the obligation to repair or correct the error whereunder the lessee took over the property leased.

• BUT when the law declares that the lessor must warrant the thing leased, it is not to be understood that he must also indemnify the lessee. Liability for the warranty is not equivalent to liability in damages.

• The lessor is liable for the warranty of the thing leased against any hidden defects it may have, even when UNKNOWN to said lessor.

• But this liability for warranty of the thing leased does not amount to an obligation to indemnify the tenant for damages, which is only to be allowed, when there is proof that the lessor acted with fraud and in bad faith by concealing the defect and not revealing it to the lessee.

(ii) Making of Repairs

• It implies the putting of something back into the condition in which it was originally and NOT an improvement in the condition thereof by adding something new thereto

• Includes those that are necessary in order to

keep it in serviceable condition for the purpose for which it was intended

• The obligation to make repairs must be understood to apply to the restoration of property which has deteriorates from use or has been partially destroyed, without total loss of identity.

• It is the duty of the lessee to give NOTICE of the need of repairs to the lessor, and he shall be liable for the damages which by his neglect may be suffered by the owner.

• Although the lessor is bound to make the necessary repairs, whether due to lapse of time, or to the use stipulated in the leases contract, or to fortuitous event, or to the nature of the thing leased, he is NOT bound to make repairs caused by the lessee himself.

Effect of Urgent Repairs

• During the lease it should become necessary to make some urgent repairs upon the thing leased, which cannot be deferred until the termination of the lease, the lessee is obliged to tolerate the

work. • If the repair lasts for more than 40 days,

the rent shall be reduced in proportion ti the time-including the 40 days- and the part of the property of which the lessee has been deprived.

• When the work is of such a nature that the portion which the lessee and his family need for their dwelling becomes uninhabitable, he may rescind the contract if the main purpose of the lease is to provide a dwelling for the lessee.

• If after having been notified, the lessor fails to make urgent repairs, the lessee, to avoid imminent danger, may order the repairs at the lessor’s expense.

Dangerous Conditions

• If a dwelling is in such a condition that its use brings imminent and serious danger to life or health, the lessee may terminate the lease at once by notifying the lessor, even if at the time the

contract was perfected the former knew

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of the dangerous condition or waived the right to rescind the lease on account of the condition.

Alteration

Art. 1661. The lessor cannot alter the form of the thing leased in such a way as to impair the use to which the thing is devoted under the terms of the lease.

• To deliver the thing which is the object of

the contract in such a condition as to render it fit for the use intended

• To make on the same thing, during the lease, all the necessary repairs in order to keep it suitable for the use to which it has been devoted, unless there is a stipulation to the contrary.

• Must be interpreted in the light of growth of civilization and varying conditions.

(iii) Peaceful Possession • It is the duty of the lessor to place the

lessee in legal possession of the premises and to maintain him in the of the property during the entire term of the lease.

• To maintain the lessee on the peaceful and adequate enjoyment of the lessee for the entire duration of the contract.

• The non-fulfillment by the lessor of this obligation releases the lessee from the obligation to pay what is stipulated in the contract from the date he ceased to

occupy the premises. • The lessee is obliged to bring to the

knowledge of the proprietor, within the shortest possible time, every usurpation or untoward act which any third person may have committed, or may be openly preparing to carry out upon the thing leased; He shall be liable for the damages which, through his negligence, may be suffered by the proprietor.

• The lessee is obliged to bring to the knowledge of the proprietor, within the shortest possible time, every usurpation or untoward act which any third person may have committed or may be openly preparing to carry out upon the thing leased. He shall be liable for the damages which, through his negligence, any be suffered by the proprietor

• Upon the ouster of the tenant by a third person, the owner may commence summary proceedings to recover possession.

• Summary possessory action will lie

against him who disturbs another in his possession whether acting in his own behalf or under direction of another.

• The owner is entitled to defend his property from any aggression in order to prevent serious injury to his interest, which would happen if this was left to the tenant who has no interest and has no real right in the property leased.

• Whatever may be the nature of the disturbance occurring, as long as it may affect the possession or the right of the owner over the leased property, he is entitled to institute the proper action and it would be judicial absurdity to deny him such a right and trust the defense of his interests to the tenant whose obligations and rights are entirely different.

(b) obligations of lessee (Art. 1657)

(i) Pay Rent

• to pay the price of the lease according to the terms stipulated

• the obligation imposed upon the lessee to pay rent in the manner agreed upon arises only when the contract has been actually carried into effect by the delivery of the thing leased to the lessee for the purpose stipulated in the contract.

Increase and Decrease of Rent • Increase and decrease in the price of

lease shall be 10% per year, net of the

assessed violation of the property that is the subject matter of the contract.

• Rentals shall be paid not on the basis of the assessed valuation of the property on the date of the contract, but on the basis of the assessed valuation determined by the government assessors and subject to the natural fluctuations in the value of property, according to the appraisement thereof made for assessment of taxes.

Failure to Pay for Rent • For failure to pay the rent will entitle the

lessor to evict the tenant, and recover the unpaid rent, plus accrued legal interest thereon at the rate of 6% per year.

• A tenant evicted without due process of law is entitled to recover damages but such damages must be limited to the simple trespass and cannot include mesne profits.

Place and Time • Payment of rent shall be made at the

domicile of the lessee; and with respect to the time, the custom of the place shall be followed.

ii. Use the Thing Leased as a Diligent Father • To use the thing leased as a diligent

father of a family, devoting it to the use stipulated, and in the absence of stipulation, to that which may be inferred from the nature of the thing leased, according to the custom of the place.

• The lessee shall return the thing leased, upon the termination of the lease, just as he received it, save what has been lost or impaired by the lapse of time, or by the ordinary wear and tear, from an inevitable cause.

• The lessee is responsible for the deterioration of the thing leased, unless he proves that it took place without his fault.

• The lessee is liable for any deterioration caused by members of his household and by his guest and visitors.

iii. Pay Expenses for the Deed of Lease (Art. 1662-1667)

c. Right of lessee to suspend payment of rentals

Art. 1658. The lessee may suspend the payment of the rent in case the lessor fails to make the necessary repairs or to maintain the lessee in peaceful and adequate enjoyment of the property leased.

d. Right to ask for rescission

Liability for Breach of Duties

• If the lessor or lessee should not comply with the obligation set forth in ART 1654 and 1657, the aggrieved party may ask for:

(1) rescission of the contract;

(2) indemnification for damages;

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(3) only damages, allowing the contract to remain in force

• The lessor cannot be held responsible for damages from defects unknown to both parties. But the lessor who fails in the performance of his obligation must indemnify the lessee for damages occasioned thereby. The true measure of damages in such a case is the ACTUAL loss of the lessee arising from the breach of contract on the part of the lessor.

Alternative Remedies

• Performance of the contract and rescission of the lease are alternative remedies

• In either case, the aggrieved party is entitled to such damages as are appropriate as to the particular remedy chosen, but may not upon rescission of the contract recover the damages that are appropriate only where the performance is demanded.

Rescission of the Contract

• Where the plaintiff alleges and submits proof that the defendant is in possession of a parcel of land as lessee, and the latter has not paid the proper rents, he may be compelled, by reason of his inability to pay to:

(1) return the leased property; (2) the lessor has a right to rescind

the contract;

(3) recover the unpaid rents (4) eject the tenant from the land

• The execution of the deed shall be equivalent to delivery but this is a rebuttable presumption.

• If the thing leased has never been placed in possession of the lessee, he has the remedy of rescission.

Recovery of Damages

• A breach of rental contract entitles the other party to demand indemnity for damages.

Enforcement of Lease

• Where the lessor resumes possession of his leased property for its protection after the lessee has abandoned the same, the lessor has still the right to hold the lessee responsible until the termination of the lease.

• The lack of power of administration to lease the premises for a period beyond his administration, may NOT be invoked

by the lessee who has dealt with him, but only by the heirs or the new owners of the premises.

(e) Lessor not obliged to answer for

mere act of trespass by a third person

(10) Grounds for ejectment of lessee by lessor

Termination of Lease • The lease may terminate:

(1) by the expiration of the period; (2) by the total loss of the thing; (3) by the resolution of the right of the

lessor, such as when the lessor is usufruct is terminated;

(4) by the will of the purchaser or transferee of the things;

(5) by rescission due to nonperformance of the obligation of one of the parties.

• In order to retain the thing leased to the lessor, it is not enough that the lessee vacates it. It is necessary that he place the thing at the disposal of the lessor, so that the lessor can receive it without any obstacle.

Fixed Period • If the lease was made for a determinate

time, it ceases upon the day fixed, without the need of a demand.

• If at the end of the contract the lessee should continue enjoying the thing leased for fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by either party has previously given, it is understood that there is an implied new lease, not for the period of the original contract but for the time established in art. 1682(rural) and 1687(urban)

• But if the lessee continues enjoying the thing after the expiration of the contract, over the lessor’s objections, the lessee shall be subject to the responsibilities of a possessor in bad faith.

• When the parties have made no agreement and the tenant remains in possession with the acquiescence of the lessor for 15 days after the expiration of the term, the duration of the tenancy is governed by article 1682 and 1687.

• It is no excuse to remain in possession after the lease has expired, to say that the lessor owed the lessee for the value of some repairs done therein, when it appears that in the contract of lease it was stipulated that the lease should retain a certain amount from the monthly rent to reimburse himself of a liquidated amount of money spent in those repairs, and there is nothing in the record showing that the lessee had not thus reimbursed himself of the amount.

Option To Renew • Where a lease is for a stated term with

the privilege to the lessee of extending the term for another period, and contains no provision for notice to the lessor of the lessee’s election so to extend the term, the lessee is not required to give express notice to the lessor, before the expiration of the first period, of his election to extend the term.

Tacit Renewal • When the tenant, with the acquiescence

of the landlord, holds over after the expiration of the term, the tacit renewal of the lease is not for the same term as that of the original contract, but ofr the same terms as in Art. 1682 (rural) and 1687 (urban) according to the character of the property and the periods of payment of the rent.

• There can be no renewal, if the lessor, before the expiration of the term, gives the lessee a notice to vacate.

• The fifteen-day period which brings about a tacit renewal of the lease, is not applicable to successive renewals.

• In the case of IMPLIED NEW LEASE, the obligation contracted by a third person for the security of the principal contract shall lease with respect to the new lease.

Judicial Ejectment • The lessor may judicially eject the lessee

for any of the following causes:

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(1) When the period agreed upon, or that which is fixed for the duration of leases under Art 1682 (rural) and 1687(urban), has expired;

(2) Lack of payment of the price stipulated;

(3) Violation of any of the conditions agreed upon in the contract;

(4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof, or if he does

not observe due diligence in its use. • In ejectment cases where an appeal is

taken, a preliminary mandatory injunction may be granted to restore the lessor in possession by motion filed within a period of 10 days from the time the appeal is perfected.

• When the lease contract does not have a definite period, but is terminable upon 30 days notice, the lease will terminate upon the expiration of 30 days from the receipt of notice, whether the termination coincides with the rent day or not.

• The landlord has the right to increase the rent after the expiration of the stipulated period. And if no period is stipulated, in a lease of urban property, notice by the lessor of an increase in rent is equivalent to notice of termination of the original agreement.

• Default in the payment of rent authorizes the lessor judicially to dispose the lessee.

(12) Right of purchaser of leased land

Art. 1676. The purchaser of a piece of land which is under a lease that is not recorded in the Registry of Property may terminate the lease, save when there is a stipulation to the contrary in the contract of sale, or when the purchaser knows of the existence of the lease. If the buyer makes use of this right, the lessee may demand that he be allowed to gather the fruits of the harvest which corresponds to the current agricultural year and that the vendor indemnifies him for damages suffered. If the sale is fictitious, for the purpose of extinguishing the lease, the supposed vendee cannot make use of the right granted in the first paragraph of this article. The sale is presumed to be fictitious if at the time the supposed vendee demands the termination of the lease, the sale is not recorded in the Registry of Property.

Art. 1677. The purchaser in a sale with the right of redemption cannot make use of the power to eject the lessee until the end of the period for the

redemption. Sale Of Leased Property • The purchaser of a piece of land which is

under a lease that is not recorded in the Registry of Property may terminate the lease, save when there is a stipulation to the contrary in the contract of sale, or when the purchaser knows of the existence of the lease.

• If the buyer makes use of this right, the lessee may demand that he be allowed to gather the fruits of the harvest which corresponds to the current agricultural year and that the vendor indemnify him for damages suffered.

• If the sale is fictitious, for the purpose of extinguishing the lease, the supposed vendee cannot make use of the right to terminate the lease. The sale is presumed to be fictitious if at the time the supposed vendee demands the termination of the lease, the sale is not

recorded in the Registry of Deeds

• A contract of lease executed by the vendor, unless recorded, ceases to have effect when the property is sold, in the absence of a contrary agreement.

• The purchaser of real property is bit bound by an unrecorded lease thereof which is not mentioned in the deed of conveyance.

• The act of the new owner of giving notice of an increase of rent, when the existing lease is of an indefinite time, or when the original period has expired, constitutes a

notice of termination of the original lease. • If the tenant continues in possession,

without accepting the new terms proposed, he becomes obliged to pay the reasonable value of the use and occupation of the premises, and may furthermore be evicted from the property.

Effect of Actual Notice • A purchaser of land who has full

knowledge of the fact that the land has been leased to a third person and is informed of the terms of such lease at the time of the purchase is bound to respect the lease.

Right of Lessee to Fruits and Damages • The law grants the purchaser of a leased

estate the right to terminate the lease, reserving to the lessee only the right to gather the fruits of the crop corresponding to the current agricultural

year. The lessee, however, may recover his damages from the vendor, his lessor.

• This right does not extend to the gathering of fishes, which require 2 years before they are of any commercial value.

Right to Repurchase • The purchaser in a sale with the right to

redemption cannot make use of the power to eject the lessee until the end of the period of redemption.

• This rule is not applicable to a case where the vendor, on disposing of real property under right of repurchase, continues nevertheless in possession thereby by virtue of a special agreement, not as owner, but as tenant of the purchaser by the payment of rent. (constitutum possesorium)

• The rule refers to the tenant or lessee who has contracted with the vendor and who has had no relation whatsoever with the purchaser under an agreement of redemption; such tenant is a third person

with respect to said vendor and purchaser, because, if the vendor should by redemption recover the property, the lessee would again be entitled to the enjoyment of the lease.

• But when the vendor remains in possession as a tenant, and he fails to pay the agreed rent, he may be evicted by the vendee even before the period of redemption has expired.

(13) Useful improvements in good

faith made by lessee.

Indemnity For Improvements • If the lessee makes, in good faith, useful

improvements which are suitable to the use for which the lease is intended, without altering the form or substance of the property leased, the lessor upon the termination of the lease shall pay the lessee one-half of the value of the improvements at that time.

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• Should the lessor refuse to reimburse said amount, the lessee may remove the improvements, even though the principal thing may suffer damages thereby. He shall not, however, cause any more impairment upon the property leased than is necessary.

• With regard to ornamental expenses, the lessee shall not be entitled to any reimbursements, but he may remove the them, provided no damage is caused to the principal thing, and the lessor does

not choose to retain them by paying their value at the time the lease is extinguished.

(14) Special provisions for leases of

rural lands • The purpose of the property is the

controlling factor in determining whether land is rural or urban

• It is urban when the principal purpose is dwelling.

• It is rural when the principal purpose is exploitation of the soil.

SECTION 3

Special Provisions for Leases of Rural Lands Art. 1680. The lessee shall have no right to a reduction of the rent on account of the sterility of the land leased, or by reason of the loss of fruits due to ordinary fortuitous events; but he shall have such right in case of the loss of more than one-half of the fruits through extraordinary and

unforeseen fortuitous events, save always when there is a specific stipulation to the contrary. Extraordinary fortuitous events are understood to be: fire, war, pestilence, unusual flood, locusts, earthquake, or others which are uncommon, and which the contracting parties could not have reasonably foreseen. Art. 1681. Neither does the lessee have any right to a reduction of the rent if the fruits are lost after they have been separated from their stalk, root or trunk. Art. 1682. The lease of a piece of rural land, when its duration has not been fixed, is understood to have been for all the time necessary for the gathering of the fruits which the whole estate leased may yield in one year, or which it may yield once, although two or more years have to elapse for the purpose. Art. 1683. The outgoing lessee shall allow the incoming lessee or the lessor the use of the premises and other means necessary for the preparatory labor for the following year; and, reciprocally, the incoming lessee or the lessor is under obligation to permit the outgoing lessee to

do whatever may be necessary for the gathering or harvesting and utilization of the fruits, all in accordance with the custom of the place. Art. 1684. Land tenancy on shares shall be governed by special laws, the stipulations of the parties, the provisions on partnership and by the customs of the place. Art. 1685. The tenant on shares cannot be ejected except in cases specified by law.

Reduction of Rents • The lessee shall have no right to a

reduction of the rent on account of the sterility of the land leased, or by reason of the loss of the fruits due to fortuitous events; but he shall have such right in case of the loss of more than one-half of the fruits through extraordinary and unforeseen fortuitous events, unless, there is a specific stipulation to the contrary.

• Neither does the lessee have any right to a reduction of the rent if the fruits are lost after they have been separated from

their stalk, root or trunk.

Duration of Lease • The lease of a piece of rural land, when

its duration has not been fixed, is understood to have been made for all the time necessary for the gathering of the fruits which the whole estate leased may yield in one year, or which it may yield once, although two or more years may have to elapse for the purpose.

• The duration of a lease can not be affected by the more or less valuable improvements voluntarily made by the

lessee upon the property • The outgoing lessee shall allow the

incoming lessee or the lessor the use of the premises and other means necessary for the preparatory labor for the following year

• Reciprocally, the incoming lessee or lessor is under obligation to permit the outgoing lessee to do whatever may be necessary for the gathering or harvesting and utilization of the fruits, all in accordance with the custom of the place.

Land Tenancy • Land tenancy on shares shall be

governed by the following: (1) special laws, (2) stipulations of the parties, (3) provisions on partnership, (4) custom of the place

• The tenant on shares cannot be ejected except in cases specified by law (Art.

1685.) • The ejectment of tenants of agricultural

lands is governed by special laws. • Only two tenancy laws have been

passed: (1) Rice Tenancy Act (Act. 4054 as

amended by RA 34) (2) Sugar Tenancy Act (Act.4113)

• Tenancy questions on land which is neither rice nor sugar land are not within the purview of these tenancy laws.

(15) Special provisions for leases of

urban lands

SECTION 4 Special Provisions of the Lease of Urban

Lands Art. 1686. In default of a special stipulation, the custom of the place shall be observed with regard to the kind of repairs on urban property for which the lessor shall be liable. In case of doubt it is understood that the repairs are chargeable

against him. Art. 1687. If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even though a monthly rent is paid, and no period for the lease has been set, the courts may fix a longer term for the lease after the lessee has occupied the premises for over one year. If the rent is weekly, the courts may likewise determine a longer period after the lessee has been in possession for over six months. In case of daily rent, the courts may also fix a longer period after the lessee has stayed in the place for over one month. Art. 1688. When the lessor of a house, or part thereof, used as a dwelling for a family, or when the lessor of a store, or industrial establishment, also leases the furniture, the lease of the latter shall be deemed to be for the duration of the lease of the premises.