02 property

PROPERTY CIVIL LAW

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Property

TABLE OF CONTENTSI. Classification 36II. Ownership 41III. Accession 42IV. Quieting of Title 48V. Ruinous Buildings and Tress in Danger of Falling 49VI. Co-Ownership 49VII. Condominium Law (Act. No. 4726) 55VIII. Possession 57IX. Usufruct 63X. Easements 65XI. Legal Easements 70XII. Voluntary Easements 77XIII. Nuisance 78XIV. Registry of Property 80XV. Different Modes of Acquiring Ownership 80XVI. Prescription 81XVII. Tradition 82XVIII. Lease 83XIX. Donation 89


PROPERTY CIVIL LAW

PROPERTYI. CLASSIFICATION

CLASSIFICATION as to mobilityArt. 414 (1) Immovable or real property(2) Movable or personal property

Art. 415. Immovables : MADAM’S CFLAT1. Land, buildings, roads,constructions adhered to soil;;

2. Trees, plants, growing fruits--attached to land/form integralpart of immovable

3. Everything attached toimmovable in fixed manner--cannot be separated withoutbreaking / deterioration

4. Statues, reliefs, paintings,objects for ornamentation inbuildings / on landsa. by the owner ofimmovable

b. manner reveals intentionto attachpermanently

5. Machinery, receptacles,instruments, implementsintended by owner for an

industry;; works whichmay be carried on inbuilding or on a piece of land,and tend directly to meet theneeds of industry or works

6. (6) Animal houses, pigeon-houses, beehives, fish ponds,breeding places in case

owner placed / preservesthem with intention to bepermanently attached to land,AND form permanent part of it--animals are included

7. Fertilizer actually used on a pieceof land

8. Mines, quarries, slag dumps,while matter their matter formspart of the bed, and watersrunning or stagnant

9. Docks and structures which,though floating, are intended bytheir nature and object to remainat a fixed place on a river, lake,or coast;;

10.Contracts for public works, andservitudes and other realrights over immovable

property.

Classification:1. immovables by nature - (1) and (8)2. immovables by incorporation- (2) (3)(7)

3. immovables by destination- (4) (5)(6) (9) and object to remain at a fixedplace on a river, lake, or coast4. immovables by analogy or by law-(10)

Art. 416. Personal Property(Movables):FLONTS(1)Those movables susceptible ofappropriation Not included in thepreceding article;;(2)Real property which by law isconsidered as personal property;;(3)Forces of nature which are broughtunder control by science;;(4) all things which can be transportedfrom place to place without impairmentof the real property to which theyare fixed.

Machinery which is movable innature only becomes immobilizedwhen placed in a plant by the ownerof a property or plant, NOT whenplaced by a tenant, usufructuary etc.unless acting as an agent of theowner.(Davao Sawmill v. Castillo, 1935)….a building is an immovableproperty, irrespective of whether ornot said structure and the land onwhich it is adhered belong to thesame owner. (Lopez v. Orosa)Since only personal properties couldbe the subject of a chattel mortgage,the execution and registration of thechattel mortgage and the foreclosureof the house are null and void.(Associated Insurance & SuretyCo. v. Iya 1958 )It is undeniable that parties to acontract may treat as personalproperty that which by nature wouldbe real property;; and for purposes oftaxation, what is naturally personalproperty may be classed as realproperty. If the properties subject tothe chattel mortgage are indeed notpersonal properties, the mortgagewould be ineffective as against thirdparties, but this is for the courts todetermine and not by the register ofdeeds. (Standard Oil vs. Jaramillo1923)Re: building under chattel mortgage-- separate treatment by the partiesof a building from the land on whichit stands does not change theimmovable character. An inscriptionof a deed of sale of real property inthe chattel mortgage registry cannotbe given the legal effect of aninscription in the registry of real

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property. (Leung Yee v. StrongMachinery, 1981)Where chattel mortgage isconstituted on machinerypermanently attached to the ground,machinery is personal property andmortgage is not null and void,regardless of who owns the land. Itis undeniable that the parties to acontract may by agreement treat aspersonal property that which by itsnature would be real property, aslong as no interest of third partiesmay be prejudiced thereby. (MakatiLeasing and Finance Corp v.Wearever Textile Mills 1983)

Differences between Real Rights andPersonal Rights

Kinds of rights considered as property(a) Real (jus in re)—power belonging toa person over a specific thing. Itgives direct and immediate juridicalpower over a thing susceptible ofbeing exercised against adeterminate person and the wholeworld.

(b) Right of obligation or Personal (jusad rem)—rights belonging to oneperson to demand of another as adefinite passive subject, thefulfillment of a prestation to give, todo, or not to do.

Real rights arises from(OPLUMEPARP)

1. Ownership2. Possession3. Lease4. Usufruct5. Mortgage6. Easement7. Pledge8. Antichresis9. Redemption10. Preemption

Real Rights Personal Rights(1) One definiteactive subjectand the rest ofthe world aspassive

(2) Object is acorporeal thing.

(3) Real right affectsthe thingdirectly.

(4) The creation ofthe juridicalrelation is by

(1) There is adefinite activeand passiveobject.

(2) Object is anintangiblething.

(3) Personalaffects thething directlythrough theprestation ofthe debtor.

(4) Creation ofthe juridicaltitle is by title

mode and title.

(5) Extinguished bythe loss ordestruction ofthe thing.

(6) Gives rise to realactions against3rd persons

alone.(5) Notextinguishedby the loss ordestruction ofthe thing.

(6) Producesonly personalactions againstdefinitedebtor.

Classification of Movables

(a) Consumables – includes thosemovables which cannot be used in amanner appropriate to their naturewithout their being consumed

(b) Non-consumable- includes allothers

Classification According toOwnership

a) Public Dominion 420i. intended for public useii. intended for public service of state,provinces, cities & municipalities

Characteristics:i. outside the commerce of menii. cannot be acquired throughprescription

iii. not subject to attachment &execution

iv. cannot be burdened by voluntaryeasement

* Art. 424. Property for public use, inthe provinces, cities, and municipalities,consist of: (RSS FW P3)Roads, Streets, Squares, Fountains,Public Waters, Promenades, PublicWorks for public service paid for by thelocal governmentAll other property possessed by any ofthem is patrimonial.

b) Private Ownership – 421i. patrimonial property of state,provinces, cities, municipalities-exist for attaining economic endsof state-property of public dominion whenno longer intended for publicuse/service – declared patrimonial

ii. property belonging to privatepersons – individually orcollectively


PROPERTY CIVIL LAW

CasesChurches and other consecratedobjects are outside the commerce ofman (Barlin vs. Ramirez, 1907)Reclaimed land is public property. Incase of gradual erosion by the ebband flow of the tide, private propertymay become property of the publicdomain, where it appears that theowner abandoned it or permitted itto be destroyed. When they stay inthat condition until reclaimed byfilling in done by the government,they continue to be governmentproperty after reclaiming. Immediatepossession by the former owner doesnot confer on him ownership of thelots, because, as they wereconverted into property of the publicdomain, no private person couldacquire title except in the form andmanner established by law.(Government of the PhilippineIslands v. Cabangis)

The sale to private parties of a publicroad which has been validly closedby the city government is valid. Basis: Art 422 CC (Cebu Oxygen andAcetylene v. Bercilles, 1975)The attachment of the municipaltrucks, police cars, police station andmarket stalls is void because theproperties levied upon are exemptfrom execution. Property for publicuse of the municipality is not withinthe commerce of man so long as it isused by the public. (Vda. DeTantoco vs. Municipal Council ofIloilo)Under the law on MunicipalCorporations, however, to beconsidered public property, it isenough that property be held anddevoted for governmental purposes.(Province of Zamboanga delNorte v. City of Zamboanga,1967)

ACTIONS FOR THE RECOVERY OF IMMOVABLEPROPERTY

FORCIBLE ENTRY ORUNLAWFULDETAINER

PLENARY ACTIONTO RECOVERPOSSESSION(ACCIONPUBLICIANA)

ACTION TO RECOVERPOSSESSION BASED ONOWNERSHIP(ACCIONREINVINDICATORIA)

FORCIBLE ENTRYUNLAWFUL ENTRY

Possession unlawfulfrom time of entry.Prior physicalpossession isINDISPENSABLE.Decision here is resjudicata only as topossession.PRESCRIPTIVE PERIOD1 year period startsfrom last demand tovacate.Possession was lawfulat first but laterbecame illegal, i.e.defendant withholdspossession afterexpiration of his right.Prior physicalpossession is NOTREQUIRED.

A civil proceeding torecover the betterright of possessionexcept in cases offorcibleentry/unlawfuldetainer.Also used to refer toan ejectment suitfiled after theexpiration of 1 yearfrom the unlawfulwithholding ofpossession of therealty.

An action to seek therecovery of ownership,necessarily including thejus utendi and jus fruendi.

PROPERTY CIVIL LAW


WHENAPPLICABLE

1. Whendispossession isby any meansother than thosementioned inSEC 1 RULE 70RoC

2. When, althoughany of thespecialcircumstances ispresent, wherethe 1 yearprescriptiveperiod forbringing anaction for forcibleentry or unlawfuldetainer hasexpired

ISSUE Physical/materialpossession (possessionde facto) (i.e. NOT civilpossession orpossession de jure,which arises from theownership or is one ofthe attributes ofownership), of which aperson 1) has beendeprived or 2) againstwhom it has beenwithheld by any of themeans/circumstancesmentioned in RULE 70

Possession de jureof realtyindependent of thetitle and restitutionof possession.This action is distinctand different froman action forrecovery of title orownership.A judgmentrendered here isconclusive only as tothe question ofpossession, but notas to the question ofownership.

Ownership, recovery of thedominion over the propertyas owner.If the issue of possessionhas already been decided,this is the only action thatcan be filed.

WHO MAYINSTITUTE

1. A person deprivedof the possession ofany land or buildingby force,intimidation, threat,strategy, or stealth(forcible entry underRULE 70) ;;

2. A landlord, vendor,vendee, or otherperson againstwhom thepossession of anyland or building isunlawfully withheldafter the expiration/termination of theright to holdpossession by virtueof any contract,express or implied(unlawful detainer);;or

3. The legalrepresentatives/assigns of any suchlandlord, vendor,

An owner who isdispossessed bymeans other thanthose mentioned inRULE 70 RoC, orwhen the possessionof land is due totolerance of theowner.It is not necessaryto wait until theexpiration of 1 yearbeforecommencement ofaction.It can also be filedafter the expirationof the 1 year periodif no action forforcible entry orunlawful detainerhas been filed duringthat time, otherwise,barred.

Legal owner or one withthe better right over theproperty.In an action forreconveyance, what issought is the transfer ofthe property which hasbeen wrongfully/erroneously registered inanother person’s name, to:1) its rightful and legalowner;; or 2) to one withthe better right


PROPERTY CIVIL LAW

vendee or otherperson

WHAT HASTO BEALLEGED

1. Prior possession defacto

2. Undue deprivationthereof

When the complaintfails to aver actsconstitutive of forcibleentry/unlawful detainer(how he wasdispossessed), theremedy should beeither accion publicianaor accionreinvindicatoria.In an ejectment suit,issue of ownership canbe passed upon by thecourt only bydetermining the issueof possession de facto.An action for ejectmentis merely a quietingprocess. If plaintiff hasin his favor priority intime, he has thesecurity that entitleshim to remain in theproperty (even againstthe owner himself) untilhe is lawfully ejected bya person having abetter right by anaccion publiciana oraccion reinvindicatoria.

For an action toreconveyance to prosper,the property should nothave passed into the handsof an innocent purchaserfor value.

WHEREFILED

MTCSummary In nature—these cases involve adisturbance of socialorder which must beabated as promptly aspossible without anyundue reliance ontechnical andprocedural rules

RTCPrescriptive Periods:1. 4 years—if based onfraud from date ofissuance ofcertificate of titleover property

2. 10 years—if basedon implied orconstructive trust

3. Imprescriptible—when plaintiff is inpossession ofproperty

4. 30 years (withoutprejudice to what isestablished for theacquisition ofownership and otherreal rights byprescription-ART1141)—if realactions overimmovables

PROPERTY CIVIL LAW


II. OWNERSHIP

Art. 427. Ownership may be exercisedover things or rights.

Ownership is subject to restrictionsimposed by:1. LAW and2. RIGHTS of others

Attributes of Ownership (UFADVPA)1. Jus possidendi- right to possess2. Jus Utendi (right to use)—right toenjoy by receiving the thing thatit produces.

3. Jus abutendi—right to enjoy byconsuming the thing by its use

4. Jus Disponendi—the right todispose or encumber, transform,and even destroy the thingowned.

5. Jus Fruendi – right to receivefruits

6. Jus vindicandi—right to excludefrom the possession of the thingowned by any other person towhom the ownership has nottransmitted such thing, by theproper action for restitution, withthe fruits, accessions, andindemnification for damages.

7. jus accessionis- right to theaccessories

Other specific rights: (HARJEES)8. Right to Exclude: Doctrine of Self-Help (429)Elements:a) Person exercising rights is owneror lawful possessor

b) There is actual or threatenedunlawful physical invasion of hisproperty (not available tosquatters)

c) Use force as may be reasonablynecessary to repel or prevent it-Available only when possessionhas not yet been lost, if alreadylost – resort to judicial process-May be exercised by 3rd person –negotiorum gestio- Art. 431. cannot make use

thereof in such manner as to injure therights of a third person.9. Right to Enclose or Fence withoutdetriment to servitudes constitutedthereon (430)A person cannot enclose his tenementand construct a fish pond that willobstruct the natural flow of waters fromthe upper tenements to the injury of the

owners of such tenements. (Lunod v.Meneses)10.Right to Receive Just Compensationin case of Expropriation (435)exception 436: when any property iscondemned or seized by competentauthority in the interest of health, safetyor security11. Right to Space and SubsoilThe right of the owner extends to thespace and subsoil as far as necessary forhis practical interests or to the pointwhere it is possible to assert hisdominion and there is the possibility ofobtaining some enjoyment or benefit.Beyond these limits, he would have nolegal interests.12. Right to Hidden Treasure (if foundon his property)a) hidden and unknown movablesconsist of money or preciousobjects

b) owner is unknownc) If treasure is found by a strangerby chance –½ belongs to finder;;the finder must not be trespasserbe entitled to a share.

Discovery by chanceWhen there is no purpose or intentto look for the treasure.

13. Right to accession14. Right to recovery or possession/ownership

Actions for possession:1. movable – replevin (return of amovable)2. immovable –a) forcible entryb) unlawful detainerc) accion publicianad) accion reinvindicatoriae) Writ of Possession -- the originalregistered owner is entitled to awrit of possession against theparties who appear and answer inthe land registration proceedingsand against all those who, havingbeen served with process, do notappear or answer.

f) Writ of injunctionMay be used to prevent orrestrain acts of trespass or illegalinterference by others of hispossession of the property.

Requisites in an action to recover(a) Identity of the property(b) Strength of plaintiff’s title/ Better

Title

Limitation of Real Right ofOwnership(1) For the benefit of the state and forpublic interest (Police power,eminent domain, taxation)


PROPERTY CIVIL LAW

(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 VoluntaryServitudes(3) Limitations imposed by partytransmitting property(i) Either by contract or last will ordonations

(ii) Stipulation on inalienability

(4) True Owner Must Resort to JudicialProcess(5) It is unlawful to exercise the right ofownership in such a manner as to haveno other effect than to injure a thirdperson without benefit to the owner.

(a) Act in State of NecessityThe law permits the injury ordestruction of things belonging toothers provided this is necessaryto avert a greater danger ordangers.Different from concept of self-help;; the purpose is to protectthe actor himself or anotherperson at the expense of theowner of the property who has nopart in the state of necessity.

(b) Liability of Proprietors underArticle 2191, for damagegscaused by exposion of machinery,

excessive smoke, falling of trees,emanations from canals

(c) Fortified places or Fortresses-must comply with special lawsand regulations

(d) Easement of Aqueduct- mustobserve proper distances andprevent damage to neighboringtenements

(e) Planting of Trees(f) Easements(g) Lateral and Sub-adjacentSupport

- Cannot commit crime in theexercise of ownership (Peoplevs Segovia, 1958)

- Can file action for recovery ofpossession even if one has neverpossessed the land;; action isplenary action for recovery ofpossession (De La Paz vs.Panis, 1995)

III. ACCESSION

Art. 440. The ownership of propertygives the right by accession toeverything which is produced thereby, orwhich is incorporated or attachedthereto, either naturally or artificially.

General Principles of Accession(1) Accessory follows the principal(2) No unjust enrichment (Art. 443)(3) All works, sowing, and plantingare presumed made by owner & athis expense, unless otherwise proved(Art. 446)

(4) Accessory incorporated toprincipal such that it cannot beseparated without injury to workconstructed or destruction toplantings or construction of works.

(5) Bad faith involves liability fordamages

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

(7) Ownership of fruits belong to theprincipal thing;; Exceptions: (PULA)(i) possession in good faith isentitled to fruits

(ii) usufructuary is entitled to fruits(iii) lessee is entitled to fruits(iv) antichretic creditor is entitled tofruits

Kinds of Accession

(1) Accession discreta – the rightpertaining to the owner of a thingover everything produced thereby:

(a) Natural fruits, or spontaneousproducts of the soil, and theyoung and other products ofanimals (Art. 442)

(b) Industrial fruits, or thoseproduced by lands of any kindsthrough cultivation or labor (Art.442)

(c) Civil fruits, or rents of buildings,the price of leases of and otherproperty and the amount ofperpetual or life annuities orother similar income (Art. 442)

A dividend, whether in cash orstock, is income or fruit andconsequently should go to theusufructuary, rather than theowner of the shares of stock.Dividend is declared only out ofthe profits of a corporation andnot out of its capital. (Bachrachvs. Seifert).

PROPERTY CIVIL LAW


A bonus paid by the mortgage-debtor to another who hadmortgaged his land to secure thepayment of the debtor’sobligation to a bank is not a civilfruit of the mortgaged property.It is not income delivered fromthe property but a compensationgranted for the risk assumed bythe owner of the property.(Bachrach vs. Talisay-Silay)

(2) Accession Continua – the rightpertaining to the owner of a thingover everything that is incorporatedor attached thereto, either naturallyor artificially.

(a) With regard to immovableproperty(a.1) Accession industrial

(BPS)

(i) Building,(ii) Planting, or(iii) Sowing (Arts. 445-456)

(a.2) Accession natural (FACA)

(i) Alluvium(ii) Avulsion(iii)Change in the course ofriver

(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 – objectsare of the same metal

(b) plumbatura – objectsare diff. metals

(iii) tejido or weaving

(iv)pintura or painting

(v) escritura or writing

(b.2) Commixtion or confusion

(b.3) Specification

Accession Industrial

Art. 446 establishes 2 disputablepresumptions regarding BPS:

(a) The works etc. were made by theowner

(b) They were made at the owner’sexpense

Exception: When contrary is proven

Right of owner of materials (OM)

1. Right to be indemnified or paid ofvalue of property by owner ofland

2. Right to remove materials if hecan do so w/o injury to workconstructed if owner has not paid

3. Right to damages and demolitioneven if with injury to work ifowner of land is in bad faith

BUILDING, PLANTING, SOWING

a) BPS / Land-owner +Owner of Materials 447

- Land-owner GF: tookmaterials with noknowledge that itbelonged to a 3rd

person- Land-owner BF: tookmaterials knowing fullywell that it belonged toa 3rd person

- Owner of Materials GF:demanded payment /no idea of taking

- Owner of Materials BF:regardless


PROPERTY CIVIL LAW

Land-owner / BPS (by himself or thruanother)

Owner of Materials

GF: pay value of materials and own thething built

GF: right to be paid value of materialsMay remove materials if can be separatedwithout injury (no accession) but accessionprevails (hence, most likely only get paid)

BF: pay value of materials + damagesGF: right to be paid value of materials +indemnity or remove materials even withdamage + indemnity

GF: pay value of materials regardless ofbf/gf of OMAnother view: 449 by analogy, noreimbursement

BF: right to be paid value of materialsAnother view: 449 by analogy, loses rightto materials, no reimbursement

BF: (both considered good faith) BF: (both considered good faith)

a) BPS / Owner of Materials + Land-owner

- Land-owner GF: no knowledge of illegal BPS- Land-owner BF: has knowledge of illegal BPS and does not oppose it453 (2)

- BPS/OM GF: s/he does not know that he built on another’s land- BPS/OM BF: has knowledge that he had no right to build, plant or sow

Land-owner BPS / Owner of Materials

GF: options1. Appropriate works, sowing or planting+ pay indemnity

2. Oblige BP to pay price of land (or payrent if land value > building and trees)or Sower to pay rent

Rent – fixed by agreement of parties;; ifnot, by court 448

GF

GF: options1. Appropriate without indemnity 4492. Compel removal without indemnity atBPS’s expense 450

3. Compel BP to pay price of land (noconditions) and Sower, the proper rent450

Whichever option chosen, entitled toreceive damages 451

BF: loses what is built, planted or sown,with no right to indemnity 449Still entitled to reimbursement fornecessary expenses of preservation of theland 452Whichever option chosen, must pay LOdamages 451

BF: 447 by analogy 454Pay value of materials + damages

GF: options (447 by analogy – 454)1. Remove works, sowing or planting evenwith damage

2. Force payment of indemnity

BF: (both considered GF) BF: (both considered GF) 453 (1)

b) BPS + Land-owner + Owner of Materials 455

PROPERTY CIVIL LAW


Land-ownerBPS OM

GFGF (GF) GF

LO appropriates and pays indemnity: OM can proceed against LO only after BPSrefuses/cannot pay, OM cannot removeLO sells land to BPS: OM can only proceed against BPSGF BF (GF) GFLO compels demolition: OM cannot claim from LO, BPS solely liableLO appropriates and pays indemnity: OM can proceed against LO only after BPSrefuses/cannot pay, OM cannot removeLO sells land to BPS: OM can only proceed against BPS

BFGF (GF) GF

BPS removes even with damage: OM can only go after BPSBPS forces LO to pay indemnity: OM can’t demand removal/return but OM can proceedagainst BPS and subsidiarily, the LOBF BF (GF)

GFSimilar to GF-GF-(GF)-GFLO appropriates and pays indemnity: OM can proceed against LO only after BPSrefuses/cannot pay, OM cannot remove

LO sells land to BPS: OM can only proceed against BPSGF GF (BF)

GF

LO appropriates and pays indemnity: OM can proceed against LO only after BPSrefuses/cannot pay, OM cannot removeLO sells land to BPS: OM can either ask BPS for indemnity + damages or removematerial even with damageGF BF (BF)

GF

LO compels demolition: OM can compel return of material by removing even withdamage + damages or OM can ask for indemnity + damagesLO appropriates: OM can’t remove because right of removal applies only to BPS in BF,LO can’t be prejudiced;; OM only entitled to the value of materials (indemnity) +damages from LOLO sells land to BPS: OM can compel removal (straightforward 447) or ask BPS forindemnity + damagesBF GF (BF)

GF

BPS removes even with damage: OM can either compel BPS to pay indemnity or toreturn materials, in both cases + damagesBPS forces LO payment of indemnity: OM can’t demand removal/return but OM canproceed against BPS and subsidiarily, the LOBF BF (BF)

GF

Similar to GF-GF-(BF)-GF

LO appropriates and pays indemnity: OM can proceed against LO only after BPSrefuses/cannot pay, OM cannot removeLO sells land to BPS: OM can either ask BPS for indemnity + damages or removematerial even with damage


PROPERTY CIVIL LAW

Cases:

A forced co-ownership occurs when theBPS has acted in good faith. Owner of theland ihas the right of retention (to pay)because his right is older and because, bythe principle of accession, he is entitled tothe ownership of the accessory thing.(Bernardo vs. Baticlan)

Since the option to remove or demolishimprovement is given to the LO and it islimited to paying for the improvement orselling his land to the BPS, he cannotrefuse to exercise his right of choice andcompel the builder to remove or demolishthe improvement. He is entitled to suchremoval only when after choosing to sellhis land, the other party fails to pay forthe same. (Ignacio vs Hilario)

An order by a court compelling a builder ingood faith to remove is building from landbelonging to another who chooses neitherto pay for such building nor sell the land isnull and void for being offensive to Art.448. (Sarmiento v. Agana)

While a possessor in good faith may retainthe property until he is reimbursed fornecessary and useful expenses, all thefruits he receives from the moment hisgood faith ceases must be deferred orpaid by him to the LO. He may, however,secure the reimbursement of his expensesby using the fruits to pay it off (deduct thevalue of the fruits he receives from thetime his good faith ceases from thereimbursement due him). (Ortiz vsKayanan)

A BPS in good faith does not lose hisrights under Art. 448 merely because ofthe fact that some years after acquiringthe property in good faith, helearnedabout and aptly recognized the right ofthe LO to a portion of the land occupiedby the building. The superveningawareness does not prejudice its right toclaim the status of a builder in good faith.(Tecnogas Phil. Manufacturing Corp.vs CA)

The BPS in good faith should not payrentals to the LO spouses. The spouses,having opted to appropriate theimprovement on the lot, have toreimburse the BPS of the cost ofconstruction of the building (in accordancewith Art 546). The BPS has the right toretain the improvements until he isreimbursed. An implied tenancy orpossession in fact is created pending thepayment of the corresponding indemnity.(Pecson v CA)

Good faith consists in the belief of thebuilder that the land he is building on is

his and he is ignorant of any defect orflaw in his title. And as good faith ispresumed, the LO has the burden ofproving bad faith on the part of the BPS.(Pleasantville Dev’t. Corp. v CA, 1996)

After the BPS had refused to restore theland to the LO, to the extent that thelatter even had to resort to the presentaction to recover his property, the LOcould no longer be regarded as havingimpliedly assented or conformed to theimprovements thereafter made byappellant on the premises. (Felices v.Iriola)

(2) Accession in Natural

(i) Alluvium 457 – the accretionwhich lands adjoining the banks orrivers, lakes, creeks or torrentsgradually receive from the

Requisites of alluvium: (CANG)

(a) The accretion must be gradual

(b) The cause must be thecurrent of the water

(c) The land where theaccretion takes place must beadjacent to the banks

(d) must be natural

*riparian owner – owner of the landfronting such riverbanks

The alluvium, though automatically ownedby the riparian owner from the momentthe soil deposit can be seen, is notautomatically registered property, since itis subject to acquisition throughprescription by 3rd persons. (Grande vsCA)

(ii) Avulsion 459– takes placewhenever the current of a river,lake, creek or torrent segregatesfrom an estate on its bank a knownportion of land and transfers it toanother estate

Distinguished from Alluvium

Alluvium Avulsion

1. Deposit of soil isgradual

2. Deposit of thesoil belongs to theowner of theproperty where thesame was deposited

3. The soil cannotbe identified

1. Deposit of soil issudden or abrupt

2. The owner of theproperty from whicha part was detachedretains theownership thereof(2 yrs)

3. The detachedportion can beidentified

PROPERTY CIVIL LAW


Requisites of Avulsion (SIC)

(a) The segregation and transfer iscaused by current of water

(b) The segregation and transfer mustbe sudden or abrupt

(c) The portion of landtransported must be known andidentifiable

Rights of the riparian owner

Removal within 2 yearsThe former owner preserves hisownership of the segregated portionprovided he removes (not merelyclaims) the same within the period of2 yrs.Art. 460 applies only to uprootedtrees. If a known portion of land withtrees standing thereon is carried awayby the current to another land, Art.459 governs.

(iii) Change of river beds

– that which takes place when a riverbed is abandoned through thenatural change in the course of thewaters (Art. 461)

Requisites for the application of Art.461:

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

(b) The change must be abruptor sudden.

Right of owner of land occupied bynew river course

1. Right to old bed ipso facto inproportion to area lost

2. Owner of adjoining land to old bedshall have right to acquire thesame by paying its value – valuenot to exceed the value of areaoccupied by new bed

3. Formation of island in non-navigable rivera) owner of margin nearest toislands formed – if nearest to it

b) owner of both margins – ifisland is in the middle (dividedinto halves longitudinally)

(iv) Formation of islandseither on the seas within thejurisdiction of the Philippines.

On lakes, and on navigable orfloatable rivers (Art. 464) or non-navigable and non-floatable rivers(Art. 465).

(1) Ownership of islands formed throughalluvion

(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 andnon-floatable rivers:

(b.1) it belongs to the nearest riparianowner or owner of the margin orbank nearest to it as he isconsidered in the best position tocultivate and develop the island

(b.2) it is divided longitudinally inhalves, if it is in the middle of theriver

(c) Concept of navigable river

A navigable river is one whichforms in its ordinary condition byitself or by uniting with otherwaters a continuous highway overwith other waters a continuoushighway over which commerce isor may be carried on.

Test: A river is navigable if it is used orsusceptible of being used, in its ordinarycondition, as a highway of commerce, thatis, for trade and travel in the usual andordinary modes.

Accession Continua-Movable property:

(1) Adjunction or Conjunction – thatwhich takes place whenever movablethings belonging to different ownersare united in such a way that theycannot be separated without injury,thereby forming a single object (Art.466)

Ownership of new object formed byadjunction

Owner of Principal OPOwner of Accessory OA

(a) union in Good Faith OP acquiresaccessory, AND pays OA for itsvalue in uncontroverted state.

(b) union in Bad Faith


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-if OA incorporated in BF1. lose the thing and2. indemnify OP for

damages-if OP acted in BF

1. OA has right to choose-payment of value-separation (even if

destroys principal)2. OA indemnified

(c) If OP or OA made theincorporation with the knowledgeand without the objection of theother, their respective rights shallbe determined as though bothacted in good faith.

(d) if involves 3 things Art. 466should be applied in an equitablemanner. The principal should bedetermined and distinguished fromthe others which would beconsidered the accessories.

TEST to determine principal inadjunction:

In order of application, the principal isthat:(a) To which the other (accessory) hasseen united as an ornament or forits use or perfection (Art. 467)-INTENT

(a) Of greater value, if they areunequal values-VALUE

(a) Of greater volume, if they are of anequal value (Art. 468)-VOLUME

(a) That of greater merits taking intoconsideration all the pertinent legalprovision applicable as well as thecomparative, merits, utility andvolume of their respective things.

(3) Specification – that which takes placewhenever a person imparts a newform to materials belonging to anotherperson (Art. 474).

Ownership of the new object inspecification

Person who made Transformation PTOwner of Material OM

(a) If PT is in Good Faith, he shall1. appropriate thing transformedas his own2. indemnify owner of material

BUT If material is more precious thantransformed thing OM may1. appropriate new thing to himself

and indemnify labor OR2. demand indemnity for

materials

(b) If PT is in Bad Faith,1. OM shall appropriate work to

himselfWithout paying maker OR

2. demand indemnity for value ofmaterial & damages

BUT If transformed thing is morevaluable than material, owner ofmaterial cannot appropriate

(3) Commixtion or confusion – that whichtakes place whenever there is a mixture ofthings solid or liquid belonging to differentowners, the mixture of solids being calledcommixtion, while that of liquids,confusion (Art. 472).

Rights1. If both owners are in good faith –Each owner shall acquire a rightproportional to the part belongingto him (vis-a-vis the value of thethings mixed or confused)

2. If one owner is in bad faith – heshall lose the thing belonging tohim plus indemnity for damagescaused to owner of other thingmixed with his thing

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

IV. QUIETING OF TITLE

It is a remedy or form of proceedingoriginating in equity jurisprudence, whichhas for its purpose an adjudication that aclaim of title or an interest in property,adverse to that of complainant, is invalid,so that the complainant and thoseclaiming under him may be forever freefrom any danger of the hostile claim.

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

(2) Plaintiff has legal or equitable titleto or interest in the subject/realproperty.

(3) Instrument, record, claim,encumbrance or proceeding must be validand binding on its face but in truth andin fact invalid, ineffective, voidable orunenforceable;; contract upon whichdefendant relies has been extinguished orterminated, or has prescribed(4) Plaintiff must return benefitsreceived from the defendant.

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Differences between action to quiet title, action to remove a cloud, and action toprevent a Cloud

QUIET TITLE REMOVE CLOUD PREVENT CLOUDPurpose is to put to an endto vexatious troublesomelitigation over the propertyinvolved

Intended to procure thecancellation;; delivery;; releaseof an instrument, encumbranceor claim, which constitutes aclaim in plaintiff’s title, andwhich may be used to injure orto vex him in his enjoyment ofhis title.

Removal of a possiblefoundation for a futurehostile claim.

Remedial action: involving apresent adverse claim

Preventive action: removes cloudwhich may be used for futureactions

Preventive action: to preventa future cloud on the title

Plaintiff asserts his ownestate and declaresgenerally that thedefendant claims someestate on the land, withoutdefining it and avers thatthe claim is withoutfoundation and calls on thedefendant to set forth thenature of his claim fordetermination

Declares his own title and alsoavers he source and nature ofthe defendant’s claim, pointsout its defects and prays it bedeclared void

Filed against people who haveclaims;; claims are moregeneral in nature

Filed against defendant whoasserts claims based on an invalidinstrument (but not apparent)

Prescription of action—Imprescriptibleif plaintiff is in possession;; if not,prescribes within period for filing accionpubliciana, accion reivindicatoria.

Notes:An action for reconveyance:

a) Prescribes in 10 years if theplaintiff is NOT in possession ofthe property and if the action forreconveyance is based on animplied or constructive trust. Thepoint of reference is the date ofregistration of the deed or thedate of the issuance of thecertificate of title over theproperty.

b) Is IMPRESCRIPTIBLE if theperson claiming to be an owner isin actual possession of theproperty. Here, the right to seekreconveyance in effect seeks toquiet title. (Olviga v. CA)

It is not necessary that thevendee has an absolute title. Anequitable title is sufficient toclothe him with personality tobring an action to quiet title.(Pingol v. CA)

What plaintiff imagined as cloudscast on his title were PR’s allegedacts of physical intrusion and not.an instrument, record, claim,encumbrance or proceeding

which constitutes or casts acloud, doubt, question or shadowupon the owner’s title or interestin real property. Clearly, the actsalleged may be consideredgrounds for an action for forcibleentry but definitely not one forquieting of title. (Titong v. CA)

V. RUINOUS BUILDINGS ANDTREES IN DANGER OF FALLING

Liability for damages:1. collapse – engineer, architect orcontractor

2. collapse resulting from total orpartial damage;; no repair made –owner;; state may compel him todemolish or make necessary workto prevent if from falling

3. if no action – done bygovernment at expense of owner

VI. CO-OWNERSHIP

Art. 484. There is co-ownershipwhenever the ownership of an undividedthing or right belongs to differentpersons.


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Characteristics of Co-ownership(PUSAM)(1) plurality of owners, but only onereal right of ownership

(2) unity of material of the object ofownership(3) recognition of ideal shares or aliquot(4) absolute control of each co-ownerover his ideal share, not over specificportions of the property

(5) mutual respect among co-owners inregard to the use, enjoyment, andpreservation of the property ownedin common.

Differences between co-ownershipand joint tenancy

Co-ownership Joint OwnershipTenancy inCommon,Ownership inCommon, Co-dominium

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

Civil law origin Common Law/Anglo-Americanorigin

Each co-ownerowner of his idealshare

Each joint owner,the surviving jointowners aresubrogated in hisrights by accretion

Each co-ownermay dispose of hisundivided sharewithout the other’sconsent.

Joint owner mustobtain the consentof all the rest todispose of hisshare.

In case there is aco-owner who is aminor, minority asa defense againstprescription isexclusive to him.

The defense of onejoint owner can beused as a defenseby all joint owners.

Differences between partnershipand co-ownership

OrdinaryPartnership

Co-ownership

With legal/juridicalpersonality distinctfrom its members

No legalpersonality distinctfrom its members

Created only byagreement orcontract to thateffect

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

Purpose is toobtain profit

Purpose iscollectiveenjoyment and tomaintain the unityand preservation ofthe things owned in

common.No term set limitset by law

As a rule, anagreement to keepthe ownership formore than 10 yearsis void.

Creditors ofindividual partnerscannot attach andsell on executionthe shares ofpartners in thepartnership

Creditors of a co-owner can attachhis shares in theco-owners and soldon execution

Can beextinguished bythe death orincapacity of oneparty

Death or incapacityof a co-owner doesnot affect existenceof a co-ownership

There is mutualrepresentation ofthe parties

A special authorityis needed for suchrepresentation.

A partner cannottransfer his rightsto a 3rd personwithout theconsent of theothers

A co-owner canfreely dispose ofhis share withoutneed to ask theconsent of theother co-owners.

Distribution ofprofits can bestipulated upon(profit-sharing)

Profits of a co-owner depend onhis proportionateshare;; profit-sharing isinvariable (Art.485) not subject tostipulation

Sources of co-ownership

(1) Law(a) Cohabitation(i) Between man and womancapacitated to marry eachother. (Art 147, FC)

(ii) Between man and woman notcapacitated to marry eachother (Art. 148, FC)

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

(c) two or more persons purchaseproperty and by common consentlegal title is taken in the name ofone of them for the benefit of all,an implied trust is created infavor of the others in proportionto each to interest of each. (Art.1452)

(d) Succession(i) Intestate succession (1078)(ii) Testate—if property is givento two or more heirs by thetestator

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Redemption done by one ofthe co-owners/heirs will benefithis other co-owner heirs despitethe fact that they did notcontribute to the redemptionmoney.

(e) Donationdonation to several personsjointly, it is understood to be inequal sharesno rights of accretion unless thedonor otherwise providesbut if donation is made tohusband and wife jointly, thereshall be a right of accretion,unless contrary so provide.

(f) Chance – commixtion in goodfaith (Art. 472, NCC)

(g) Hidden treasure – co-ownershipbetween finder and owner

(h) Easement of a party wall(i) Occupation – Harvesting andfishing

(Punsalan et al. v. Boon Liatet al.)(j) Condominium lawSec. 6(c) of RA 4726 – unlessotherwise provided, common areasare held in common by the holders ofthe units in equal shares, one foreach unit.

(2)Contract(a) Two or more persons agree tocreate a co-ownership—maximumof ten years (494, 2nd par),extendable by a new agreement.

(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 secretwherein anyone of the membersmay contact in his own namewith third persons (no juridicalpersonality)

Rights of each co-owner as to thething owned in common: FRomCUERPO

(1) proportionate Fruits and benefits(485)(2) Repairs for preservation (489-490)(3) Compel contribution (488)(4) Use according to purpose intended(486)(5) bring an action for Ejectment (487)(6) legal Redemption (1620)(7) demand Partition and terminate co-

ownership (494-496;; 498)

(8) full Ownership of proportion (493)

(1)Right to share in the fruits andbenefits in proportion to hisinterest

PROVIDED the charges are borne byeach in the same proportionA contrary stipulation is VOID.Portions are presumed equal unlesscontrary is proved.Accretion added to any portion ofland co-owned becomes part of theproperty in co-ownership and shouldbe divided according to each co-owners proportionate share.

(2)Right to make repairs forpreservation

Necessary expenses- taxes and expenses for thepreservation of the thing which ifnot made would endanger theexistence of the thing or reduceits value or productivity

- may be incurred upon the will of1 co-owner, but if practicable, hemust give reasonable notice tothe other co-owners

Useful expenses- increase the income of the thingowned in common for the benefitof all the co-owners

- a lone co-owner cannot incursuch expenses without theconsent of the others and thenask reimbursement (resolution ofmajority as per Art. 492)

- Effect of failure to notify co-owners even if it was practicableto do so: does not deprive co-owner of right to reimbursement.He is merely given the burden toprove the necessity of suchrepairs. He will not be fullyreimbursed if others can provethat i.e., could have hired acontractor who would charge less

(3)Right to compel the other co-owner to contribute

For:1. expenses for preservation2. taxesBUT co-owner has option not tocontribute by renouncing so much ofhis undivided interest equal to theamount of contribution EXCEPT ifwaiver is prejudicial to co-ownership


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(4)Right to use the thing accordingto its intended purpose

may be altered by agreement,express or implied, provided:- without injury or prejudice tointerest of co-ownership;; and

- without preventing the use ofother co-owners

Any act against the collectiveinterest is an act against ownershipand the remedies available to ownersin general may by used by the co-owner

(5)Right of to bring an action inejectment

no need to implead all the other co-owners as co-plaintiffs because thesuit is deemed to be for the benefitof all: a favorable decision willbenefit everyone but an adversedecision will not affect them if theyare not parties in the case or theydid not give their consent to theactionBUT action will not prosper if theaction is for the benefit of himselfonly and not for the co-ownershipFor title to prescribe in favor of theco-owner, however, there must be aclear showing that he has repudiatedthe claims of the other co-ownersand that they have beencategorically advised of the exclusiveclaim he is making to the property inquestion. Only then will the period ofprescription being to run. (Cortes v.Oliva)

(6)Right to exercise legalredemption

Redemption of the property by a co-owner does not vest in him soleownership over said property but willinure to the benefit of all co-owners.Redemption is not a mode oftermination of relationship.(Mariano v CA)

By the very nature of the right of"legal redemption", a co-owner'sright to redeem is invoked only afterthe shares of the other co-ownersare sold to a third party or strangerto the co-ownership. The law doesnot prohibit a co-owner from selling,alienating or mortgaging his idealshare in the property held incommon. The law merely providesthat the alienation or mortgage shallbe limited only to the portion of theproperty which may be allotted to

him upon termination of the co-ownership and, as earlier discussed,that the remaining co-owners havethe right to redeem, within aspecified period, the shares whichmay have been sold to the thirdparty (Reyes vs. JudgeConcepcion)

Art 1621 presupposes that the landsought to be redeemed is rural. Bothlands—that sought to be redeemedand the adjacent lot belonging to theperson exercising the right ofredemption—must be rural. If one orboth are urban, the right cannot beinvoked. (Halili v. CA, 1998)

Art. 1623 requires that the writtennotification should come from thevendor or prospective vendor, notfrom any other person. It is thenotification from the seller, whichcan remove all doubts as to the factof the sale, its perfection, and itsvalidity, for in a contract of sale, theseller is in the best position toconfirm whether consent to theessential obligation of selling theproperty and transferring ownershipthereof to the vendee has beengiven. (Francisco v. Boiser)

The written notice of sale ismandatory for the tolling of the 30-day redemption period,notwithstanding actual knowledge ofa co-owner. (Verdad v CA, 1996)

A third person, within the meaning ofArt. 1620 of the Civil Code (on theright of legal redemption of a co-owner) is anyone who is not a co-owner. (Pilapil v CA)

(7)Right to ask for partition

PARTITION: a division between twoor more persons of real or personalproperty which they own as co-partners, joins tenants or tenants incommon, effected by the settingapart of such interests so that theymay enjoy and possess it inseveralty.

Gen rule: A co-owner can always askfor a partition. There is noprescriptive period.Exceptions: (PUI SCAN)1. when partition is generallyProhibited by law

2. when partition would render thething Unserviceable, or the thing

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in common is essentiallyIndivisible- no physical partition but thingmaybe sold and co-ownersshall divide the proceeds

3. when there is a Stipulationagainst it (not beyond 10 years)

4. when Condition of indivision isimposed by transferor (donor ortestator) not exceed 20 years

5. Acquisitive prescription has set infacor of a stranger to co-ownership or in favor of co-owner.

6. when legal Nature of communityprevents partition (e.g. partywall)

Either co-owner may demand thesale of the house and lot at any timeand the other cannot object to suchdemand. Thereafter the proceeds ofthe sale shall be divided equallyaccording to their respectiveinterests. (Aguilar v. CA)

Effects of partition:1. It shall NOT prejudice thirdpersons who did not intervene inthe partition

2. There should be mutualaccounting of benefits,reimbursements, payment ofdamages due to negligence orfraud, liability for defects of titleand quality of portion assigned toeach

3. The part allotted to a co-owner atpartition will be deemed to bepossessed by such co-owner fromthe time the co-ownershipcommenced.

4. Heir is exclusive owner ofproperty adjudicated to him.

5. Co-owners reciprocally bound toeach other for warranty of titleand quality of part given to each(hidden defect) after partition.

6. Under Art. 1093, obligation ofwarranty is proportionate torespective hereditary shares;;insolvency of one makes theothers liable subject toreimbursement (joint liability)

(8)Right to full ownership ofproportion

All that he can sell or freely disposeis his undivided interest but hecannot sell or alienate a concrete,specific or definite part of the thingowned in common because his rightover the thing is represented by a

quota or ideal portion without anyphysical adjudication.

Co-owner can substitute anotherperson in the enjoyment of the thing

Effect of transaction by each co-owner:1. Limited to his share in thepartition

2. Transferee does not acquire anyspecific portion of the wholeproperty until partition

3. Creditors of co-owners mayintervene in the partition toattack the same if prejudicial(Art. 499), except that creditorscannot ask for rescission even ifnot notified in the absence offraud (Art. 497)

Unless the partition is effected, eachheir cannot claim ownership over thedefinite portion and cannot disposeof the same. Co-heir can only sell hissuccessional rights. (Carvajal v CA)

Art 493 of the NCC allows thealienation of the co-owner of his partin the co-ownership. The effect ofsuch alienation or mortgage shall belimited to the portion which may beallotted to him in the division uponthe termination of the co-ownershipIn short, a co-owner can enter into acontract of lease insofar as to hisinterest. Therefore, he can alsocancel such lease without theconsent from the other co-owner.(Castro v. Atienza)

Duties and Limits to Rights of Co-owners

1. pay for charges (485)2. not to make alterations (491)after partition…3. mutually account (500)4. liability for defects in title and

quantity (501)Duty not to make alterations

Alteration: act by virtue of which a co-owner

changes the thing from the statein which the others believe itshould remain orwithdraws it from the use towhich they are desired to beintended in opposition to thecommon or tacit agreement

Consent of ALL the co-owners is requiredif it changes the essence or nature of thething (present article refers to this)because it is an act of ownership.Acts of alteration that do not change theessence or nature of the thing requires


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only the agreement of the majoritybecause it is merely an act ofadministration.- but if withholding of consent byany one of the co-owners isclearly prejudicial to the commoninterest, courts may affordadequate relief (491)

Acts ofAlteration/Actsof Ownership

Acts ofAdministration

Relates to the use,substance or formof the thing

Also for the betterenjoyment of theproperty

Have a morepermanent result

Effects are oftransitorycharacter

Consent of all isnecessary

Consent of thefinancial majoritywill be binding

Contrary to the co-ownershipagreement

Does not give riseto a real right overthe thing owned incommon.

Effects of acts of alteration andremedies of non-consenting co-owner :(a) Co-owner who made alterationsmay lose whatever he has spentas he will not be reimbursed

(b) He may be ordered to demolishor remove the alteration at hisexpense

(c) He will be liable for damages andother losses

(d) Co-ownership will benefit fromthe alteration if other co-ownersdecide to contribute to theexpenses by reimbursing him(ratification)

(e) If a house is built in a commonlot, the co-owners are entitled tothe proportionate share of therent.

Lease becomes an act of ownership if:(1) It is recorded in the Registryof Property

(2) It is for more than 1 year

Management of Property

Who may manage:a) The co-owners themselvesCourt cannot appoint anadministrator to manage a propertyco-owned when the co-owners wantto handle the management. In thismanagement, the “majority” control

and their decisions are binding uponthe minority. Majority may onlyproceed to act without notice to theminority if the circumstances warranturgency.

b) An administrator who may or maynot be a co-owner delegated by theco-ownersAn administrator cannot, without theunanimous consent of all the co-owners, compromise on, donate,cede, alienate, mortgage, orencumber in any manner thecommon property.

The majority refers to the majority ininterest or the financial majority. (50%+ 1)

When are acts seriously prejudicial?So serious and affects theinterest of the co-owners in thecommunitySuch that will cause injuriesenough to justify the interventionof the court

Examples:(1) When the resolution calls for asubstantial change or alteration ofthe common property or of the useto which it has been dedicated by

agreement or by its nature(2) When the resolution goes beyondthe limits of mere administration, orinvades the proprietary rights of theco-owners, in violation of Art. 491(prohibiting against acts ofalteration)(3) When the majority leases, loans,or other contracts without security,exposing the thing to serious dangerto the prejudice of the other co-owners.(4) When the majority refuse todismiss an administrator who isguilty of fraud or negligence in hismanagement, or does not have therespectability, aptitude, and solvencyrequired of persons holding suchposition.(5) When resolution, if carried out,would cause serious injury to thething itself, such as an agreementnot to borrow money underreasonable terms when it isnecessary for urgent repairs forpreservation, or for the payment oftaxes.

Remedies of the minorityIf the acts of the majority prejudicethe minority, the latter may ask forinjunction or at worse, a partition.

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Extinguishment of Co-Ownership

(1) Total destruction of the thing(2) Merger of all the interest in oneperson(3) Acquisitive prescription(a) By a third person(b) By one co-owner against the

other co-ownersRequisites:(i) Unequivocal acts ofrepudiation of the rights ofthe other co-owners (actsamounting to ouster of otherco-owners)

(ii) Open and adverse possession,not mere silent possession forthe required period ofextraordinary acquisitiveprescription.

(iii)Presumption is thatpossession of a co-owner isnot adverse.

(4) Partition or division(a) Right of Creditors of individualCo-owners Art. 497All creditors must be consideredto intervene in the partition ofthe common property.They must have become creditorsduring the co-ownershipCo-owner debtors have the dutyto notify the creditors of thepartitionOtherwise partition not bindingon themThey can contest such partition ifthey formulate a formalopposition thereto.

(b) Partition may be made:(ii.) OrallyValid and enforceableamong the parties.Statute of frauds does notoperate for partition is nota conveyance of propertybut merely a segregationand designation of thatpart of the property whichbelongs to the co-owners.

(ii.) In writing(a) Court will justconfirm suchwritten agreement.

(a) Rules of Court does notpreclude amicable settlementbetween parties.

(b) Two principal issues in anaction for partition:

(b) plaintiff is indeed aco-owner of theproperty

(c) how the property isto be dividedbetween plaintiffand defendants.

If property cannot be dividedwithout great prejudice, thecourt may order suchproperty be assigned to oneco-owner. Such co- ownerwill pay the others the valueof their interests.

VII. CONDOMINIUM LAW (ACT NO.4726)

Concept of condominiumExclusive interest in units plusundivided interest in common areas.Partly co-ownership, partly underindividual separate ownershipEach unit belongs separately to oneor more personsThe land and the common areas areof common use by the differentowners and are under co-ownershipeither as contemplated by the CivilCode or through a corporation.Not governed by co-ownership asprovided for in the Civil Code.External surfaces are common areasBeams and posts are common areasEasement, unless the master deedsays otherwise, is an exclusiveeasement.Interest in the common areas willdepend on interest in the condoImportant documents in buying acondo 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 anycondominium therein, register adeclaration of restrictions relating tosuch project, which restrictions shallconstitute a lien upon each condominiumin the project and shall insure to andbind all condominium owners in theproject. Such liens, unless otherwiseprovided, may be enforced by anycondominium owner in the project or bythe management body of such project.The Register of Deeds shall enter andannotate the declaration of restrictionsupon the certificate of title covering theland included within the project, if theland is patented or register under theland included within the project, if the


PROPERTY CIVIL LAW

land is patented or registered under theLand Registration or Cadastral Acts.

Method of taxation

Sec. 25. Whenever real property hasbeen divided into condominiums, eachcondominium separately owned shall beseparately assessed, for purposes of realproperty taxation and other taxpurposes to the owners thereof and thetax on each such condominium shallconstitute a lien solely thereon.

Partition of Common AreasSec.7. Except as provided in thefollowing section, the common areasshall remain undivided, and there shallbe no judicial partition thereof.

(b) Who manages the condominium?(i) condominium corporation(preferred by law) – co-terminous with the existenceof the condominium

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

Rights and Obligations ofCondominium ownerWhat are the incidents of acondominium grant?(a) The boundary of the unit grant(i) the interior surfaces of theperimeter walls, floors,ceilings, windows, and doors

(ii) those which are not part ofthe unit bearing walls,columns, floors, roofs,foundations, and othercommon structural elementsof the building;; lobbies,stairways, hallways, and otherareas of common use,elevator equipment andshafts, central heating,central refrigeration, andcentral air-conditioningequipment, reservoirs, tanks,pumps, and other centralservices and faicilities, pipes,ducts, flues, chutes, conduits,wires and other utilityinstallations, whereverlocated, except the outletsthereof when located withinthe unit.

(b) Exclusive easement for the use ofthe air space encompassed bythe boundaries of th unit(i) as it exists at any particulartime

(ii) as the unit may lawfully bealtered or reconstructed fromtime to time

(iii)such easement shall beautomatically terminated inany air space upondestruction of the units torender it untenable

(c) Unless otherwise provided, thecommon areas are held incommon by the holders of units,in equal shares, one for each unit

(d) a non-exclusive ease ment foringress, egress, and supportthrough the common areas aresubject to such easements

(e) Each condominium unit ownershall have the exclusive right topaint, repaint, tile, wax, paper, orotherwise refinish and decoratethe inner surfaces of the walls,ceilings, floors, windows, anddoors, bounding his own unit

(f) Each condominium owner shallhave the exclusive right tomortgage, pledge, encumber hiscondominium and to have thesame appraised independently ofthe other condominiums but anyobligation incurred by suchcondominium owner is personalto him.

(g) Each condominium owner hasalso the absolute right to sell ordispose of his condominiumunless the master deed containsa requirement that the propertybe first offered to thecondominium owners within areasonable period of time beforethe same is offered to outsideparties.

Case

Ownership of a unit, therefore, is acondition sine qua non to being ashareholder in the condominiumcorporation By necessary implication,the "separate interest" in acondominium, which entitles the holderto become automatically a share holderin the condominium corporation, asprovided in Section 2 of theCondominium Act, can be no other thanownership of a unit. (Sunset ViewCondominium v Judge Campos)

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VIII. POSSESSION

Definition and Concept(1) Possession is the holding of a thingof the enjoyment (exercise) of aright (523), whether by materialoccupation (de facto possession) orby the fact that the thing or the rightis subjected to the action of our will.

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

Essential requisites of possession(1) Holding or control of a thing or right(corpus) consists of either:(a) the material or physicalpossession(b) subject action of our will-exercise of a right(c) constructive possession

doctrine of constructive possessionapplies when the possession is undertitle calling for the whole, i.e.,possession of a part is possession ofthe whole.Constructive possessiona) tradicion brevi manu (one whopossess a thing short of title ofowner – lease );;

b) tradicion constitutumpossesorium (owner alienatesthing but continues to possess –depositary, pledgee, tenant)

(2) Intention to possess (animuspossidendi)it is a state of mind whereby thepossessor intends to exercise anddoes exercise a right of possession,whether or not such right is legalintention may be inferred from thefact that the thing in question isunder the power and control of thepossessormay be rebutted by contraryevidence

Cases:The general rule is that the possessionand cultivation of a portion of a tract ofland under a claim of ownership of all isa constructive possession of all, IF theremainder is not in the adversepossession of another. Possession in theeyes of the law does not mean that aman has to have his feet on everysquare meter of ground before it can besaid that he is in possession. (Ramosv. Director of Lands)

The rule on constructive possession doesnot apply when the major portion of thedisputed property has been in theadverse possession of homesteaders and

their heirs. It is still part of the publicdomain until the patents are issued.(Director v. CA)

Degrees of holding of possession

(1) Mere holding or possession withouttitle whatsoever and in violation ofthe right of the owner.applies to both movables andimmovablesboth the possessor and the publicknow that the possession is wrongfulthere can be no acquisitiveprescription of movables under theNCC (Art. 1133)

(2) Possession with juridical title butnot that of ownership.peaceably acquiredthis will never ripen into fullownership as long as there is norepudiation of concept under whichthe property is held (if suchrepudiation is made known to theowner, then extraordinaryprescription of 30 yrs will apply)e.g., possession by tenant,depositary, agent, bailee, trustee,lessee, antichretic creditoreven actual owner may be preventedby law from taking possessiona depositary bank is not a possessorin this degree, since a deposit isactually a loan to the bank

(3) Possession with just title or titlesufficient to transfer ownership, butnot from the true ownertitle— deed of sale or contract of salepossession of a vendee from vendorwho pretends to be the owner, i.e.,innocent buyer of stolen goodsgood faith of buyer = just titleif in good faith, extraordinaryprescription of 30 years will applythis degree of possession ripensinteresting full ownership by lapse oftime

(4) Possession with just title from thetrue owner

Transfer of possession transfersownership! (possession as anincident of ownership)

Cases of possession

(1) Possession for oneself, orpossession exercised in one’s ownname and possession in the name ofanother.rights of possession may beexercised through agents


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(a) necessary— exercised on behalfof the conceived child, of juridicalpersons, of persons not sui juris,and of the conjugal partnership

(b) voluntary— in cases of agents oradministrators appointed by theowner or possessor

(2) Possession in the concept of anowner and possession in the conceptof a holder with the ownershipbelonging to another

In the Concept of a Holdersuch possessor acknowledges inanother a superior right whichhe believes to be ownership,whether his belief be right orwronge.g. tenant, usufructuary, andborrower

In the Concept of Ownersuch possessor may be the ownerhimself or one who claims to besoonly this class of possession canserve as title for acquiringdominiongood faith or bad faith isimmaterial except for purposes ofprescription (GF: 10 yrs;; BF: 30yrs)

Effects of possession in the conceptof an owner:(1) possession may by lapse oftime ripen into full ownership,subject to certain exceptions

(2) presumption of just title andcannot be obliged to show orprove it Exception: forpurpose of prescription in Art1131.

(3) possessor can bring allactions an owner can bring toprotect his possession, exceptaccion reivindicatoria

(4) may employ self-help (Art429)

(5) can ask for the inscription ofhis possession in the registryof property

(6) has right to the fruits andreimbursement for expenses(assuming he is a possessorin GF)

(7) upon recovering possessionfrom unlawful deprivers, candemand fruits and damages

(8) generally, he can doeverything an owner isauthorized to do until he isousted by one who has a

better right (e.g.,preemption)

(9) possession in GF andpossession in BF

(3) Possession in good faith andpossession in bad faith

possession in good faith ceases fromthe moment defects in the title aremade known to the possessorwhen an action is filed to recoverpossession, good faith ceases fromthe date of the summons to appearat the trialGF consists in the possessor’s beliefthat the person from whom hereceive a thing was the owner of thesame and could convey his titleGF is always presumedbelief that one is the legal ownermust be based on some title or modeof acquisition, i.e., sale, donation,inheritanceerror in the application of the law, inthe legal solutions that arise formsuch application, in the appreciationof the legal consequences of certainacts, and in the interpretation ofdoubtful provisions or doctrines, mayproperly serve as the basis of GF-mistake upon a doubtful or difficultquestion of law as a basis of goodfaith [Art 526 (3)]

Subjects of possessionAll rights and things susceptible ofappropriationThings which cannot be possessed:(1) property of public dominion(2) res communes(3) easements (discontinuous ornon-apparent)(4) things specifically prohibited bylawres nullius (abandoned or ownerlessproperty)– may be possessed butcannot be acquired by prescription

Acquisition of Possession

(1) Ways of acquiring possession(a) Material occupation of the thingoccupation is used in the generalsense, i.e., a means of acquiringpossession of things, not of rightskind of possession acquired isonly the fact of possession, notthe legal right of possession

(i) Doctrine of constructivepossession(ii) Includes constructivedelivery (equal to materialoccupation in cases where

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occupation is essential to theacquisition of prescription)

traditio brevi manuone who possesses a thingby title other thanownership continues topossess the same butunder a new title, that ofownership

traditio constitutumpossessoriumowner alienates the thing,but continues to possessthe same but as that ofdepositary, pledge, ortenant

(b) subjection to the action of ourwilldifferent from andindependent of juridical actsand legal formalities as itrefers more to the right ofpossession that to possessionas a fact

(i) traditio simbolica --effected by delivering someobject or symbol, placingunder the thing under thecontrol of the transferee, suchas the keys to the warehousecontaining the goodsdelivered [Art 1498 (2)]

(ii) traditio longa manu –effected by the transferorpointing out to the transfereethe things which are beingtransacted

(c) proper acts and legal formalitiesrefers to the acquisition ofpossession by sufficient title,whether inter vivos or mortiscausa, or lucrative or onerouse.g., donations, succession,contracts, judicial writs ofpossession, writs of executionof judgments, and registrationof public instruments

There was a perfect contract of pledgeand the depositary was placed in thepossession of the goods after thesymbolic transfer by means of deliveryto him of the keys to the warehousewhere the goods were kept. (BancoEspanol Filipino v. Peterson)

(2) By whom possession may beacquired

(a) by same personElements of personal acquisition

must have the capacity toacquire possessionmust have the intent topossesspossibility to acquirepossession must be present

(b) by his legal representativeRequisites:

representative or agent hasthe intention to acquire thething or exercise the right foranother, and not for himselfperson for whom the thinghas been acquired or rightexercised, has the intention ofpossessing such thing orexercising such right

(c) by his agent(d) by any person without anypower whatsoever but subject toratification, without prejudice toproper case of negotiorum gestio

(e) Qualifiedly, minors andincapacitated personsrefers only to possession ofthings, not of rights, and toacquisition of possession bymaterial occupation

(3) What do not affect possession(a) acts merely tolerated(b) acts executed clandestinely ANDwithout knowledge of owner

(c) acts by violence as long as thepossessor objects thereto (i.e.,he files a case)

If owner of a tract of land, toaccommodate the public, permits themto cross his property, it is not hisintention to divest himself of ownershipor to establish an easement. Suchpossession is not affected by acts ofpossessory character which are merelytolerated. (Cuaycong v Benedicto)

As a squatter, she has no possessoryrights over the disputed lot. The State’ssolicitude from the destitutes and thehave-nots does not mean that it shouldtolerate usurpations pf property, publicor private. (Astudillo v PHHC)

A possessor by mere tolerance isnecessarily bound by an implied promiseto vacate upon demand. (Peran v CFI)


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(4) Rules to solve conflict ofpossession

In case of conflict of possession, thefollowing order of preference must befollowed:(1) present possessor or actual

possessor(2) if 2 or more possessors, the onelonger in possession

(3) if dates of possession are thesame, the one who presents atitle

(4) if all the condition are equal, thething shall be placed in judicialdeposit pending determination ofpossession or ownership throughproper proceedings

Preference in case of conflict ofownership (double sales)(1) for immovable property

(a) first who registered his rightin GF in the Registry ofProperty

(b) if no registration, first whopossessed in GF

(c) if no possession, one whopresents the oldest title

(2) for movable property: first whopossessed in GF

Effects of Possession

(1) In general, every possessor has aright tobe respected in his possession;; ifdisturbed therein, possessor hasright to be protected in or restored tosaid possession (539)(a) action to recover possession(i) summary proceedings –forcible entry and unlawfuldetainer. Plaintiff may ask forwrit of preliminary mandatoryinjunction may be asked.Within 10 days from filing ofcomplaint in forcible entry- the same writ is available inunlawful detainer actionsupon appeal (Art 1674)

The acquirer and possessor ingood faith of a chattel or movableproperty is entitled to berespected and protected in hispossession as if he were the trueowner, until a competent courtrules otherwise. Such possessionin good faith is equivalent to titleand every possessor has a rightto be respected in his possession(Arts 539 and 559). (Yu vHonrado)

(ii) accion publiciana (based onsuperior right of possession, notof ownership)(iii)accion reivindicatoria

(recoveryof

ownership)(iv) action for replevin – forrecovery of movable property

(b) Possessor can employ self-help

(2) Entitlement to fruits – possessor inGF/ BFPossessor in GF is entitled to thefruits received before the possessionis legally interrupted.Possessor in BF has no right toreceive any fruits. Those alreadygathered and existing will have to bereturned;; with respect to those lost,consumed, or which could have beenreceived, he must pay the value.But the possessor in BF does nothave to pay interest on the value offruits he has to pay, because suchamount is unliquidated.

(3) Reimbursement for expenses (SeeTable below(4) Possession of movable acquired inGF (in concept of an owner) isequivalent to titleone who has lost a movable or hasbeen unlawfully deprived thereofmay recover it withoutreimbursement, except if possessoracquired it at a public sale (559)3 requisites to make possession ofmovable equivalent to a title:(1) that the possession is in GF(2) that the owner has voluntarilyparted with the possession of thething

(3) that the possession is in theconcept of an owner

Presumptions in favor of thepossessor

(1) Of good faith until the contrary isproved (Sideco vs. Pascua)(2) Of continutity of initial GF inwhich possession was commenced orpossession in GF does not lose itscharacterException: in the case and from themoment the possessor became aware oris not unaware of improper or wrongfulpossession.(3) Of enjoyment of possession inthe same character in which wasacquired until the contrary is proved.

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(4) Of non-interruption ofpossession in favor of presentpossessor who proves possession at aprevious time until the contrary isproved. (554, 1120-1124)

2 Kinds of Interruption(1) Natural (Art 1122)—ifinterruption is for more than 1year.

(2) Civil (Art 1123)— will start fromthe service of summons but theproper action must be filed

in case of natural interruption, theold possession loses all its juridicaleffects and therefore cannot betacked to the new possession forpurposes of prescriptionin case of civil interruption, ifpossession is recovered, it can beconnected to the time that haselapsed as if it were continuous andcan be counted in favor ofprescription

(5) Of exclusive possession ofproperty allotted to a participant in athing possessed in common for theentire period during which co-possession lasted;;

(6) Of continuous possession or non-interruption of possession of whichhe was wrongfully deprived for allpurposes favorable to him (561)(7) Other presumptions with respect tospecific property rights(i) Of extension of possession of realproperty to all movablescontained therein so long as it isnot shown that they should beexcluded (Art. 426)

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

(iii)Of just title in favor of possessorin concept of owner, subject toArt. 1141

Loss of Possession

(1) Abandonment(2) Assignment—WON gratuitously oronerously

(3) Destruction—must be total/goesout of commerce

(4) Possession of another—thepossession that is lost here refersonly to possession as a fact (defacto), not the legal right ofpossession (de jure)

NOTE: all the other 3 cases of loss ofpossession (abandonment, assignment,destruction) refer to loss of possessionde jure (real right of possession) and

therefore cannot be recovered anymoreby any action.

Rules for Loss of MovablesGeneral Rule: possession of personalproperty acquired in GF = title thereforethe true owner cannot recover it

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

deprivedIn either of these, he may recover thepersonal property not only from thefinder but also from those who mayhave acquired it in GF from such finderor thief, without paying for anyindemnity except if possessor acquired itin public sale but the possessor in GF isentitled to reimbursement.

Wild animals are possessed only whilethey are under one's control;;domesticated or tamed animals areconsidered domestic or tame if theyretain the habit of returning to thepremises of the possessor. (Art. 560)

(5) Reivindication—the most naturalmode of losing possession, i.e.,recovery or reivindication of thething by the lawful owner


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Effects of Possession in Good Faith or Bad FaithGood Faith Bad Faith

Fruitsreceived

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

Must reimburse fruits received orfruits which legitimate possessorcould have received (549);;

Entitled to expenses for production,gathering, and preservation

PendingFruits

Entitled to a part of the expenses ofcultivation and a part of the networkharvest, both proportion to the time ofpossession (545)

Owner may indemnify or allowpossessor in GF to finish cultivationand the fruits will be indemnified forhis cultivation (545)

If possessor refuses concession, noindemnity (545)

Charges Must share with the legitimatepossessor, in proportion to the time ofpossession

Same as with GF

NecessaryExpenses

Right of reimbursement and retentionin the meantime (545)

Reimbursement only

UsefulExpenses

Owner’s option to reimburse himeither for expenses or for increase invalue (546)

Retention prior to reimbursement(546)

Limited right of removal (but shouldnot damage principal and owner doesnot exercise option of payment ofexpenses or increase in value) (547)

No right to reimbursement. He alsocannot remove improvements evenhe can do so without injury to theprincipal thing

OrnamentalExpenses

Limited right of removal as above(548)

Limited right of removal (no injury tothing and lawful possessor does notretain by paying for them) (548)

Deteriorationor Loss

No liability unless due to fraud ornegligence after becoming in BF

Liable WoN due to his fault,negligence, fortuitous event

Costs ofLitigation

Bears cost Bears cost

Effects of Recovery of PossessionImprovements caused by nature ortime shall always insure to thebenefit of the person who hassucceeded in recoveringpossession. (Art. 551).One who recovers possession shallnot be obliged to pay forimprovements which have ceasedto exist at the time he takespossession of the thing. (Art. 553)necessary expenses: lawfulpossessor or owner has to pay forthem even if the object for whichthey were incurred no longer exist

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IX. USUFRUCT

DefinitionUSUFRUCT is a real right which gives theusufructuary- a right to enjoy the property ofanother

- with the obligation of preservingits form and substance, unlessthe title constituting it or the lawotherwise provides. (Art.562)

Characteristics1. real right of use and enjoymentof property owned by another

2. of a temporary duration3. transmissible4. may be constituted on real orpersonal property, on tangiblesor intangibles

Rights of Usufructuary:

A. As to the thing and its fruits1. right to possess and enjoy thething itself, its fruits andaccessions (566-567)

2. right to lease the thing (572)3. right to improve the thing

Right to possess and enjoy the thingitself, its fruits and accessionsFruits belong to the usufructuaryexcept when they diminish thesubstance of the thing (e.g.,minerals in quarries), in which casethey will belong to the usufruct onlywhen the owner has dedicated theproperty to the exploitation of suchproducts.Dividends from shares are fruits.Rights may be transferred, assigned,or otherwise disposed of by theusufructuary;;As to hidden treasure, usufructuaryis a stranger, so no right to itFruits pending at the beginning ofthe usufruct belong to theusufructuary, with no obligation torefund the expenses of the owner.But, if expenses for production wereincurred by third persons, they mustbe reimbursed.Fruits growing at the time of thetermination of the usufruct belong tothe owner, but the usufructuarymust be reimbursed from theproceeds of such fruits for hisproduction expenses.

Right to lease the thingeven without consent of ownerBUT no alienation, mortgage, pledge

Lease by the owner before the startof the usufruct is not extinguished bysuch usufruct.Usufructuary will be liable to theowner for damages caused by thefault or negligence of the transfereeor lessee.General rule: Lease by the usufructshould terminated at the end of theusufruct or earlier.Exception: leases of rural lands,in which case the lease continuesfor the remainder of theagricultural year

Right to improve the thingUseful improvements or expensesonlyNo alteration of form and substanceUsufructuary may removeimprovements only if it is possiblewithout damaging the property.The owner cannot compel theusufructuary to remove theimprovements. BUT If the

usufructuary does not remove, hehas no right to be indemnified.Registry of improvements isnecessary to protect theusufructuary against third personsregarding the improvements.If improvements cannot be removed,such may be used to offset anydamage caused by the usufructuaryto the property.

B. As to the usufructuary right itself1. Right to alienate

EXCEPT in purely personalones or when the titleconstituting the usufructprohibits the same.Examples:- Legal usufruct ofparents (Art. 226 FC)

- Usufruct granted theusufructuary inconsideration of hisperson

- Usufruct acquiredthrough caucionjuratoria

Sale by the usufructuaryFuture crop may be sold;; but suchsale will be void if not ratified by theowner. It’s a sale of property notbelonging to the usufructuary andthose gathered at the termination ofthe usufruct belonging to the owner.If things are consumable or wereappraised when delivered, theusufructuary can dispose of them.


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Rights of the naked owner1. At the beginning of the usufruct

all obligations of the usufructuaryat the beginning of the usufruct

2. During the usufructretains title to the thing andimprove itmay alienate the property

3. At the termination or end of theusufruct

recover property from theusufructuary in the samepreserved form and substancewith room for ordinary wear andtear subject to ordinary repairs

Obligations of the UsufructuaryThese requirements are conditionsmerely to the entry upon thepossession and enjoyment of theproperty.

A. At the beginning of the usufruct orbefore the exercise of the right ofthe usufruct1. To make an inventory EXCEPTwhenNo one will be injuredtherebyTitle constituting usufructexcused the making ofinventoryTitle constituting usufructalready makes an inventory

2. To give a bond for the faithfulperformance of duties asusufructuary EXCEPT whenNo prejudice would resultUsufruct is reserved by donorTitle constituting usufructexcused usufructuaryCaucion juratoria: a swornundertaking wherein theusufructuary claims that he isin dire need of the house andthe implements/furniture andasks that he be allowed toenjoy the same even withoutgiving the required security

B. During the usufruct1. To take care of the things like agood father of the family

bad use of the thing will notextinguish the usufructOwner becomes entitled todelivery and administration ofthe thing should theabuse cause substantial

injury to the owner2. To undertake Ordinary Repairs

for the preservationif not repairs made byusufructuary, even after the

demand by the owner, thelatter may pay for the repairs,with right of reimbursementfrom the usufructuary

3. To Notify the Owner of Need toUndertake Extra-Ordinary RepairsThose caused by exceptionalcircumstances, WON they arenecessary for the preservationof the thingThose caused by the naturaluse of the thing, but are notnecessary for its preservationNaked owner obliged toundertake them but whenmade by the owner,usufructuary pays legalinterest on the amount whileusufruct lastsNaked owner cannot becompelled to undertake extra-ordinary repairsIf indispensable and ownerfails to undertakeextraordinary repairs- may bemade by the usufructuary

4. To notify owner of any actdetrimental to ownership

OR ELSE, usufructuary will beliable for damage and hecannot make extraordinaryrepairs

5. To shoulder costs of litigationregarding the usufruct

6. To answer for the fault of alienee,lessee, or agent of theusufructuary

Causes of extinguishment ofUsufruct (Art.603) DERM PLT1. Death of the usufructuary, unlessa contrary intention clearlyappears;;

2. Expiration of the period for whichit was constituted, or by thefulfillment of any resolutorycondition provided in the titlecreating the usufruct;;

3. Renunciation of the usufructuary;;4. Merger of the usufruct andownership in the same person;;

5. Prescription;;6. Total Loss of the thing inusufruct;;

7. Termination of the right of theperson constituting the usufruct

Special Cases of Usufruct

1. over a pension or periodical income(570)2. of property owned in common (582)3. of head of cattle (591)4. over deteriorable property (578)

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5. over vineyards and woodlands (575-576)6. on mortgaged property (600)7. over entire patrimony (598)8. over consumable property (574)

quasi-usufructmay be on consumables, e.g.,food, but must be replaced withequal quantity if not appraised,must be considered as on theirvaluemay also be on non-consumablesthat gradually deteriorate by use,e,g,, furniture or car in reality,the usufruct is converted into asimple loan not upon consumablethings themselves which aredelivered to the

usufructuary, but upon thesum representing their value orupon a quantity of things of thesame kind and quality theusufructuary, in effect, becomesthe owner of the things inusufruct, while the grantorbecomes a mere creditor entitledto the return of the value or ofthe things of the same quantityand quality

X. EASEMENTS

Art. 613. “Easement or Servitude”:encumbrance imposed upon animmovable for the benefit of anotherimmovable belonging to a differentowner...“Dominant estate”: the immovable infavor of which the easement isestablished“Servient estate”: the immovablewhich is the subject of the easement.

Art. 614. “Personal Easements”:established for the benefit of acommunity, or of one or more personsto whom the encumbered estate doesnot belong.- real right or encumbrance imposed onan immovable for the benefit of anotherimmovable belonging to a differentowner or for the benefit of a communityor one or more persons to whom theencumbered estate does not belong bywhich the owner is obliged to abstainfrom doing or to permit a certain thingto be done on his estate.

Easements cannot be established onpersonal propertyBurden should not be so great as toamount to a taking of his property

It is not essential that the benefit begreat. It is sufficient that there is adeterminate use or utility in favor ofa dominant estate.Not necessary that the right acquiredunder the servitude be exercised.Servitudes can’t be established onthings which are outside thecommerce of man. Such things areinalienable. Imposition of anencumbrance would constitute analienation.Servitudes cannot be created onproperty of public dominion.

Easement v. LeaseEASEMENT LEASEReal right WONregistered, WONreal or personal

Real right onlywhen it isregistered, orwhen its subjectmatter is realproperty and theduration exceeds 1year.

Imposed only onreal property

May involve eitherreal or personalproperty

Limited right to theuse of realproperty ofanother, withoutright of possession.

Limited right toboth thepossession and useof another’sproperty.

Easement v. UsufructEASEMENT USUFRUCTImposed only onreal property.

May involve eitherreal or personalproperty.

Limited to aparticular orspecific use of theservient estate.

Includes all theuses and fruits ofthe property.

Non-possessoryright over animmovable

Involves right ofpossession in animmovable ormovable.

Not extinguishedby death of thedominant owner.

As a rule,extinguished bythe death of theusufructuary.

Essential Features of Easements orReal Servitudes (RAIL-IRI-NA-RIP)

(1) It is a real right. It gives rise to anaction in rem or real action againstany possessor of the servient estate.

(2) It is a right enjoyed over anotherproperty (jus in re aliena). It cannotexist in one’s own property (nulli ressua servit). Servient and dominant


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estates have to belong to differentpersons.

(3) It is a right constituted over animmovable by nature not overmovables.

(4) It limits the servient owner’sright of ownership or the benefit ofthe dominant estate. But servienttenement remains unimpaired. Beingan abnormal limitation of ownership,it cannot be presumed.

(5) It creates a relation betweentenements.

(6) It can exist only betweenneighboring tenements. It can’t becreated on another servitude.

(7) It cannot consist in requiring theowner of the servient estate to do anact unless the act is accessory to apraedial servitude (obligation propterrem).

(8) It may consist in requiring theowner of the dominant estatedemanding that the owner of theservient estate refrain from doingsomething (servitus in non faciendo),or that the latter permit thatsomething be done over the servientproperty (servitus in patendo) butnot in the right to demand that theowner of the servient estate dosomething (servitus in faciendo)except if such act is an accessoryobligation to a praedial servitude.

(9) It is inherent or inseparable fromestate to which they actively orpassively belong. (Art. 617)

Servitudes cannot exist withouttenements. They are merelyaccessory. This doesn’t mean theydon’t have juridical existence of theirown. (Solid Manila vs. Bio Hong)Inherence refers only to that portionof the tenement affected by it.Portion not affected can be alienatedwithout the servitude.Contract of transmission of easementby owner of the dominant estatemay constitute a renunciation orextinguishments of easement

(10) It is intransmissible, cannot bealienated separately from thetenement. It can’t be the object ofmortgage and exists even if notannotated.

(11) It is indivisible. (618)(12) It has permanence.

Classification

Astorecepientofbenefit

Real/Predial

In favor ofanotherimmovable(Art.613)

Personal

In favor of acommunity orof 1 or morepersons, maybe public orprivate(Art.614)

i. Public:vested in thepublic atlarge or insome class ofindeterminateindividuals

ii. Private:vested in adeterminateindividual orcertainpersons

Astoitssource

Voluntary

Established by willoragreement of theparties orby atestator(Art.619)

Legal

Imposed by laweitherforpublicuse orin theinterestofprivatepersons(Art.619)

Mixed

Createdpartlyby willoragree-mentandpartlyby law

Astoitsexercise

Continuous

Use of whichis or may beincessant,without theinterventionof any act ofman.(Art.615)

Discontinous

Used atintervals anddepend uponacts of men(Art.615)

AstoWONitsexistenceis

indicated

Apparent

Made knownand arecontinuallykept in viewby externalsigns thatreveal theuse andenjoyment ofthe same(Art.615)

Non-apparent

Show noexternalindication oftheirexistence(Art.615)

* In general,negativeeasementsare non-apparent.

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Asto

duty

ofservient

owner

Positive

Imposes uponthe owner ofthe servientestate theobligation ofallowingsomething tobe done or ofdoing ithimself(Art.616)

Negative

Prohibits theowner of theservientestate fromdoingsomethingwhich hecould lawfullydo if theeasement didnot exist(Art.616)

General Rules Relating to Servitudes

(1) No one can have a servitude overhis own property

(2) A servitude cannot consist indoing

(3) There cannot be a servitude overanother servitude

(4) A servitude must be exercisedciviliter, in a way leastburdensome to the owner of theland.

(5) A servitude must have aperpetual cause.

Modes of Acquiring Easements

(1) By Title

a juridical actwhich gives rise tothe servitude suchas the law (e.g.donation, contractsand wills)

All easements

- continious andapparent (Art.620)

- continous andnon-apparenteasements(Art.622)

- discontinouseasements,whether apparentor non-apparent

* Discontinuouseasement can onlybe acquired by titleand not byprescription.

(2) ByPrescription of10 years

Continuous andapparenteasements(Art.620)

The time forreckoningprescription:

(a) Positiveeasements- fromthe day on whichthe owner of thedominant estate,or the person whomay have madeuse of theeasement,commenced toexercise it uponthe servient estate

(b) Negativeeasements- fromthe day on whichthe owner of thedominant estateforbade, by aninstrumentacknowledgedbefore e notarypublic, the ownerof the servientestate, fromexecuting an actwhich would belawful without theeasement.(Art.621)

* Prescription doesnot require goodfaith or just title.General rules foracquisitiveprescription ofownership andother real rights donot apply to it.

* There musthowever beadverse possessionor exercise of theeasement.

(3) By deed ofrecognition(Art.623)

If easement hasbeen acquired butno proof ofexistence isavailable, andeasement is onethat cannot beacquired byprescription

(4) By finaljudgment(Art.623)

(5) By apparentsign establishedby the owner of2 adjoiningestates.

The existence of anapparent sign ofeasement betweentwo estates,


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established ormaintained by theowner of both,shall beconsidered, shouldeither of them bealienated, as a titlein order that theeasement maycontinue activelyand passively,unless, as the timethe ownership ofthe two estates isdivided, thecontrary should beprovided in thetitle of conveyanceof either of them,or the signaforesaid should beremoved beforethe execution ofthe deed. Thisprovision shall alsoapply in case ofthe division of athing owned incommon by two ormore persons.(Art. 624.)

Cases

The road is clearly a servitudevoluntarily constituted in favor of thecommunity under Art. 531. Having beendevoted by NNSC to the use of thepublic in general, the road is chargedwith public interest. And while sodevoted. NNSC may not establishdiscriminatory exceptions against anyprivate persons. (North Negros SugarCo. vs Hidalgo)

Since the construction of the church,there had been a side door in the wallthrough which the worshippers attendingmass enter and leave, passing andentering the land in question. As this useof the land has been continuous, it isevident that the church has acquired aright to such use by prescription, in viewof the time that has elapsed since thechurch was built and dedicated toreligious worship, during which periodthe Municipality has not prohibited thepassage over the land by persons whoattend services held by the church.(Municipality of Dumangas vs Bishopof Jaro)

Easement of light and view go together.Acquisition of easements is by title or byprescription. The visible and permanentsign of an easement is the title thatcharacterizes its existence. Existence ofthe apparent sign had the same effect asa title of acquisition of the easement ofthe light and view upon death of originalowner. (Amor vs. Florentino)

An easement of a right of way cannot beacquired through prescription becausepossession of right of way is intermittentand discontinuous. Acquisitiveprescription requires that the possessionbe continuous or uninterrupted (Art.1118). (Ronquillo v Roco)

Rights and Obligations of Owners ofDominant and Servient Estates

Art. 625. Upon establishment of aneasement, all the rights necessary forits use are considered granted.

(1) Rights of the dominant estate(EWW)(a) To use the easement (Art.626)and exercise all rights necessaryfor the use (Art. 627)

(b) To use at his expense allnecessary works for the use andpreservation of the easement.(Art. 627)

(c) In a right of way, to ask forchange in width of easementsufficient for needs of dominantestate.

Such right of way may bedemanded when there isabsolutely no access or evenwhen there is one, it is difficult orgrossly insufficient. Art. 651also provides that “the width ofthe easement of right of wayshall be that which is sufficientfor the needs of the dominantestate, and may accordingly bechanged from time to time.”(Encarnacion v CA)

(2)Obligations of dominant estate(UNAC)(a) To use easement for the benefitof immovable and in the manneroriginally established. (Art. 626)

(b) To notify owner of the servientestate before making repairs inmanner inconvenient to servientestate. (Art. 627)

(c) Not to alter easement or render itburdensome.

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(d) If there are several dominantestates unless he renounces hisinterest: to contribute theexpenses of works necessary foruse and preservation servitude.(Art. 628)

Owner of dominant estate has theright to use accessory servitudes orthose necessary for the use of otherservitudes regarded as principalsones.Works must be executed in themanner of least inconvenience to theservient who cannot recoverindemnity for the inevitable damagesthat may be suffered by the servientowner.If dominant owner violatesrestrictions, he can be compelled torestore the things their originalcondition and to pay indemnity forthe damages.If dominant tenement is alienated,transferee can be required to restorethings their original condition but hecannot be required to pay indemnitybecause this is a personal liability ofthe former owner.

(3) Rights of the servient estate(RC)(a) To retain ownership and use ofhis property (Art 630)

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

(4)Obligations of the servient estate(IC)(a) Not to impair the use of theeasement. (Art. 629)

(b) To contribute proportionately toexpenses to use the easement[Art 628(2)]

Owner of servient tenement mustabstain from rendering the use of theeasement more inconvenient to theowner of the dominant estate.If owner of the servient estateperforms act or constructs worksimpairing the use of the servitude,the owner of the dominant tenementmay ask for the destruction of suchworks and restoration with damages.Injunction is another remedy.

Modes of Extinguishment ofEasements (Art.631) (MINERRO)

(1)Merger – must be absolute, perfectand definite, not merely temporary.

If cause for cessation of merger isinherent like nullity or rescission,easement is reestablished. Ifextrinsic, there is no revival.If the owner of the merged estatesells 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 theyceased to be used

(2) Continuous easements:counted from the day an actadverse to the exercise tookplace

(b) Use by a co-owner of thedominant estate bars prescriptionwith respect to others (Art.633)(c) Servitudes not yet exercisedcannot be extinguished by non-user

Non – user must be due toabstention by dominant owner andnot to fortuitous event. If dominantestate is used in common, exerciseof the easement of one of the co –owner inures to the benefit of allothers and preserves the easementwhich is indivisible.Erection of works incompatible withthe exercise of the easement ortotally obstructing the servitude,agreed to by the owner of thedominant estate, amounts to tacitrenunciation and extinguishes theservitude.Right or power to claim exercise ofthe legal servitude do not prescribe.

(3) Impossibility of use

When either or both of the estatesfall into such condition that theeasement cannot be used;; but itshall revive if the subsequentcondition of the estates or either ofthem should again permit its use,unless when the use becomespossible, sufficient time forprescription has elapsed, inaccordance with the provisions of thepreceding number;;This mode arises from the conditionof the tenements and only suspendsthe servitude unlit such time when itcan be used again.10 years cap for suspension,otherwise, extinguished byprescription as previously provided.Eg. Flooding of servient tenementover which a right of way exists.


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(4) Expiration of term or fulfillmentof resolutory condition

By the expiration of the term or thefulfillment of the condition, if theeasement is temporary orconditional;;

(5) Renunciation of owner of thedominant estate

It must be specific, clear, express.Fact that owners of the dominantestate refrained from claiming theservitude without any positive act toimply a real waiver or renunciationdoes not bring the case within theprovisions of this article.Occurs only in voluntary easements.

(6) Redemption agreed uponbetween the owners.

By the redemption agreed uponbetween the owners of the dominantand servient estates.-Voluntary-Stipulated conditions, whichextinguish easements.

(7) Other causes not mentioned(a) Annulment or rescission orcancellation of the title constitutingthe easement.

(b) Termination of the right of grantorto create the easement ( e.g.redemption of the property sold aretro because of the exercise of theright of conventional redemption (Art. 1618)

(c) Abandonment of the servientestate

(d) Eminent domain(e) Special cause of extinction of legalright of way, the opening of anadequate outlet to the highwayextinguishes the easement, ifservient owner makes a demandfor such extinguishment.(Art. 655)

(f) Registration of the servient estateas FREE

(g) Permanent impossibility to makeuse of the easement.

XI. LEGAL EASEMENTS

DEFINITIONArt. 634. Imposed or mandated by lawand which have for their object eitherpublic use or the interest of privatepersons, and thereby become acontinuing property right.

2. KINDS (as to their use or object)(1) Public legal easements – for public orcommunal use(2) Private legal easements – for theinterest of private persons or for privateuse including:

WatersRight of wayParty WallLight & ViewDrainageIntermediate DistancesAgainst NuisanceLateral & Subjacent Support

(1)Laws Governing Legal EasementsGenerally, special laws and the CCgovern easements but note thatprivate legal easements may begoverned by agreement of theinterested parties whenever the lawdoes not prohibit it and no injury issuffered by a third person.

(a) Those established for the use ofwater or easements relatingwaters (Arts. 637 – 648)(1) Natural drainage of waterswith stones or earth carriedwith them

waters which form in uppertenements and flow to the lowerones by force of nature and not bythose caused by acts of man.Owner of tenements cannotconstruct works to increase theburden of this servitude.Owner of the lower tenementscannot make works which impedethe servitude. But he can constructwork necessary to prevent damageto himself provided it does notimpede the servitude and he doesnot cause damage to othertenementsRain water from roofs of buildingsand water from houses must bereceived on one’s own land.It is the duty of the owner of thebuilding to direct the rainwater to apublic place or to establish aneasement of passage of waterthrough a neighboring tenement.

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CaseThe dikes are continuous easementssince it does depend upon the act ofman, but is due to gravity. Being such, itis subject to the extinction to the non-user (20 years in the Old Code and 10years in the New Code). (Ongsiaco v.Ongsiaco)

(2) Easements on lands alongriverbanks

For public use: 3m zone alongmargins for navigation, floatage,fishing and salvage.If navigable – Towpath easement fornavigation and floatageIf private land – expropriate, since itis for private use.

(3) Abutment of Land

Non – owner builder of the dam payowner of land for the abutment ofthe land.abutment – part of dam that extendsto the riverbank or damif no easement previouslyestablished, and the dam floods theland – injured owner or hisrepresentative can remove it asprivate nuisance.

(4) Aqueduct

Any person who may wish to use uponhis own estate any water of which hecan dispose shall have the right to makeit flow through the intervening estates,with the obligation to indemnify theirowners, as well as the owners of thelower estates upon which the watersmay filter or descend. (Art. 642.)

Obligation of the dominant estate:(1) To prove that he can dispose of thewater and that it is sufficient for the usefor which it is intended;;(2) To show that the proposed right ofway is the most convenient and leastonerous to third persons;;(3) To indemnify the owner of theservient estate

The easement of aqueduct forprivate interest cannot be imposedon buildings, courtyards, annexes, orouthouses, or on orchards or gardensalready existing.For legal purposes, the easement ofaqueduct shall be considered ascontinuous and apparent.

(5) Drawing waters andwatering materials

Compulsory easements for drawingwater or for watering animals can beimposed only for reasons of public use infavor of a town or village, after paymentof the proper indemnity. (Art. 640)

Easements for drawing water and forwatering animals carry with them theobligation of the owners of the servientestates to allow passage to persons andanimals to the place where sucheasements are to be used, and theindemnity shall include this service.(Art. 641)

Easements of the right of way for thepassage of livestock known as animalpath, animal trail or any other, andthose for watering places, resting placesand animal folds, shall be governed bythe ordinances and regulations relatingthereto, and, in the absence thereof, bythe usages and customs of the place.(Art. 657)

Without prejudice to rights legallyacquired, the animal path shall notexceed the width of 75 meters, andthe animal trail that of 37 metersand 50 centimeters.Whenever it is necessary to establisha compulsory easement of the rightof way or for a watering place foranimals, the provisions of thisSection and those of Articles 640 and641 shall be observed. In this casethe width shall not exceed 10meters.

(6) Stop lock and sluice gate

Art. 647. One who for the purpose ofirrigating or improving his estate, has toconstruct a stop lock or sluice gate inthe bed of the stream from which thewater is to be taken, may demand thatthe owners of the banks permit itsconstruction, after payment of damages,including those caused by the neweasement to such owners and to theother irrigators.

(a)Easement of right of way

Requisites before demanding a rightof way (Articles 649-650)(a) owner, or anyone with a realright to cultivate, or useimmovable

(b) not due to acts of the proprietorof the dominant estate

(c) surrounded by immovablesbelonging to others, withoutadequate outlet to public highwayi. absolutely no access


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ii. difficult or dangerous to use(d) right of way claimed is the leastprejudicial to the servient estate

(e) payment of the proper indemnity(i) permanent passage – value ofthe land(ii) without permanent passage –payment of damages

To justify the imposition of thisservitude, there must be a realnecessity for it. Mere convenience isnot enough. Even when there is anecessity, if it can be satisfiedwithout imposing the servitude,servitude should not be imposed.Owner can not by his own act isolatehis property from the public highwayand then claim an easement of waythrough an adjacent estate.Access to highway may bedemanded:(a) when there is absolutely noaccess to a public highway

(b) when even if there is one, it isdifficult or dangerous to useor is grossly insufficient

Payment of the value of the land forpermanent use of easement does notmean an alienation of the landoccupied.Criterion of the least prejudice to theservient estate must prevail over thecriterion of the shortest distance.(Quimen v. Quimen)Before judicial decision,establishment of any road wouldconstitute an invasion of the landwith all consequences resulting fromsuch transgression.It is the needs of the dominantestate which determines the width ofthe passage. Servitude may thus bemodified after it has already beenestablished.

Whenever a piece of land acquired bysale, exchange or partition, issurrounded by other estates of thevendor, exchanger, or co-owner, heshall be obliged to grant a right of waywithout indemnity.

In case of a simple donation, the donorshall be indemnified by the donee for theestablishment of the right of way. (Art.652)

Servitude without indemnity isconsidered as a tacit condition of thesale, exchange or partition, but notimplied in a simple donation.When the right of way originallyestablished without indemnity shoulddisappear or become useless, a legal

servitude may be demanded with thepayment of the indemnity.On the other hand, if grantor/exchanger/ vendor‘s propertybecomes isolated, he must payindemnity.

Art. 654. If the right of way ispermanent, the necessary repairs shallbe made by the owner of the dominantestate. A proportionate share of thetaxes shall be reimbursed by said ownerto the proprietor of the servient estate.

Obligations of praedium dominans;;necessary repairs, proportionateshare of taxes.

Art. 655. If the right of way granted toa surrounded estate ceases to benecessary because its owner has joinedit to another abutting on a public road,the owner of the servient estate maydemand that the easement beextinguished, returning what he mayhave received by way of indemnity. Theinterest on the indemnity shall bedeemed to be in payment of rent for theuse of the easement.The same rule shall be applied in

case a new road is opened giving accessto the isolated estate.In both cases, the public highway mustsubstantially meet the needs of thedominant estate in order that theeasement may be extinguished.

Extinguishment Not Ipso Jure –(only) owners of the servient estatehas to ask for it and returnindemnity.Owner of the dominant estate maynot ask for the return of theindemnity unless servient owner asksfor the extinguishment.Offset interest of the indemnity withrentals of the land.

Art. 656. If it be indispensable for theconstruction, repair, improvement,alteration or beautification of a building,to carry materials through the estate ofanother, or to raise therein scaffoldingor other objects necessary for the work,the owner of such estate shall be obligedto permit the act, after receivingpayment of the proper indemnity for thedamage caused him.

This may be demanded by owner andusufructuary.Word indispensable should not beunderstood as indicating that itwould be impossible to construct orrepair the building. It is enough that

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it would be extremely difficult to doso without the easement.

Animal PathWithout prejudice to rights legallyacquired, the animal path shall notexceed the width of 75 meters, andthe animal trail that of 37 metersand 50 centimeters.Whenever it is necessary to establisha compulsory easement of the rightof way or for a watering place foranimals, the provisions of thisSection and those of articles 640 and641 shall be observed. In this casethe width shall not exceed 10meters.(570a)

Cases

A voluntary easement of right of waycould be extinguished only by mutualagreement or by renunciation of theowner of the dominant estate. Theopening of an adequate outlet to ahighway can extinguish only legal orcompulsory easements, not voluntaryeasements. (La Vista v. CA)

An easement of right of way can beestablished through continued use.(Vda. de Baltazar v CA)

(c) Easement of party wall

Art. 658. The easement of party wallshall be governed by the provisions ofthis Title, by the local ordinances andcustoms insofar as they do not conflictwith the same, and by the rules of co-ownership

Party wall is a co-ownership in aspecial class by itself:(1) It is indivisible.(2) The part pertaining to each co-owner can be materiallydesignated.

(3) Rights of a co-owner of a partywall are greater than those of anordinary co-owner and withrespect to increasing the heightof the wall.

Wall may be owned in common bythe adjoining owners either form itsconstruction or by a subsequent act.Each owner can insert the beams ofhis building in the wall to the extentof its entire thickness.A party wall is one which is built bycommon agreement by getting landfrom the adjoining tenements inequal parts. Each owner may use thewall but only to the extent of one-half of its thickness.

Art. 659. The existence of an easementof party wall is presumed, unless thereis a title, or exterior sign, or proof to thecontrary:(1) In dividing walls of adjoiningbuildings up to the point of commonelevation;;(2) In dividing walls of gardens or yardssituated in cities, towns, or in ruralcommunities;;(3) In fences, walls and live hedgesdividing rural lands.

Co-ownership must be acceptedunless the contrary appears from thetitle showing that the entire wallbelongs exclusively to one of theproperty owners or unless there is anexterior sign to destroy suchpresumption.

Art. 660. It is understood that there isan exterior sign, contrary to theeasement of party wall:(1) Whenever in the dividing wall ofbuildings there is a window or opening;;(2) Whenever the dividing wall is, onone side, straight and plumb on all itsfacement, and on the other, it hassimilar conditions on the upper part Art.657. Easements of the right of way forthe passage of livestock known asanimal path, animal trail or any other,and those for watering places, restingplaces and animal folds, shall begoverned by the ordinances andregulations relating thereto, and, in theabsence thereof, by the usages andcustoms of the place.Without prejudice to rights legallyacquired, the animal path shall notexceed in any case the width of 75meters, and the animal trail that of 37meters and 50 centimeters.Whenever it is necessary to establish acompulsory easement of the right of wayor for a watering place for animals, theprovisions of this Section and those ofArticles 640 and 641 shall be observed.In this case the width shall not exceed10 meters. (570a), but the lower partslants or projects outward;;(3) Whenever the entire wall is builtwithin the boundaries of one of theestates;;(4) Whenever the dividing wall bears theburden of the binding beams, floors androof frame of one of the buildings, butnot those of the others;;(5) Whenever the dividing wall betweencourtyards, gardens and tenements isconstructed in such a way that thecoping sheds the water upon only one ofthe estates;;


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(6) Whenever the dividing wall, beingbuilt of masonry, has stepping stones,which at certain intervals project fromthe surface on one side only, but not onthe other;;(7) Whenever lands inclosed by fencesor live hedges adjoin others which arenot inclosed.In all these cases, the ownership of thewalls, fences or hedges shall be deemedto belong exclusively to the owner of theproperty or tenement which has in itsfavor the presumption on any one ofthese signs. (573)

Art. 661. Ditches or drains openedbetween two estates are also presumedas common to both, if there is no title orsign showing the contrary.There is a sign contrary to the part-ownership whenever the earth or dirtremoved to open the ditch or to clean itis only on one side thereof, in whichcase the ownership of the ditch shallbelong exclusively to the owner of theland having this exterior sign in itsfavor.

Art. 662. The cost of repairs andconstruction of party walls and themaintenance of fences, live hedges,ditches, and drains owned in common,shall be borne by all the owners of thelands or tenements having the party wallin their favor, in proportion to the rightof each.Nevertheless, any owner may exempthimself from contributing to this chargeby renouncing his part-ownership,except when the party wall supports abuilding belonging to him.

Art. 663. If the owner of a building,supported by a party wall desires todemolish the building, he may alsorenounce his part-ownership of the wall,but the cost of all repairs and worknecessary to prevent any damage whichthe demolition may cause to the partywall, on this occasion only, shall beborne by him.

Art. 664. Every owner may increase theheight of the party wall, doing at his ownexpense and paying for any damagewhich may be caused by the work, eventhough such damage be temporary.The expenses of maintaining the wall inthe part newly raised or deepened at itsfoundation shall also be paid for by him;;and, in addition, the indemnity for theincreased expenses which may be

necessary for the preservation of theparty wall by reason of the greaterheight or depth which has been given it.If the party wall cannot bear theincreased height, the owner desiring toraise it shall be obliged to reconstruct itat his own expense and, if for thispurpose it be necessary to make itthicker, he shall give the space requiredfrom his own land.

Art. 665. The other owners who havenot contributed in giving increasedheight, depth or thickness to the wallmay, nevertheless, acquire the right ofpart-ownership therein, by payingproportionally the value of the work atthe time of the acquisition and of theland used for its increased thickness.

Art. 666. Every part-owner of a partywall may use it in proportion to the righthe may have in the co-ownership,without interfering with the common andrespective uses by the other co-owners.

Each part-owner can use the partywall only in proportion to his interest

(d) Easement of Light and View

Art. 667. No part-owner may, withoutthe consent of the others, open throughthe party wall any window or aperture ofany kind.

Such act would imply the exercise ofthe right of ownership by the use ofthe entire thickness of the wall. Itwould be an invasion of the right ofthe other part owners.

Art. 668. The period of prescription forthe acquisition of an easement of lightand view shall be counted:(1) From the time of the opening of thewindow, if it is through a party wall;; or(2) From the time of the formalprohibition upon the proprietor of theadjoining land or tenement, if thewindow is through a wall on thedominant estate.

Art. 669. When the distances in Article670 are not observed, the owner of awall which is not party wall, adjoining atenement or piece of land belonging toanother, can make in it openings toadmit light at the height of the ceilingjoints or immediately under the ceiling,and of the size of thirty centimeterssquare, and, in every case, with an irongrating imbedded in the wall and with awire screen.

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Nevertheless, the owner of the tenementor property adjoining the wall in whichthe openings are made can close themshould he acquire part-ownershipthereof, if there be no stipulation to thecontrary.He can also obstruct them byconstructing a building on his land or byraising a wall thereon contiguous to thathaving such openings, unless aneasement of light has been acquired.

Openings allowed are for the purposeof admitting light. They can bemade only in the walls of buildingsand not in the walls separatinggardens or yards because they haveno need for such openingsThe period to require the closing ofthe illegal opening begins to run fromthe moment such opening is made.But it is only the action to compel theclosure which prescribesAlthough action to compel the closinghas prescribed, this does not meanservitude has been acquired byperson who opened them. Servitudeis negative and period for acquisitiveprescription will begin to run onlyfrom the time that the ownerasserting the servitude has forbiddenthe owner of adjoining tenementfrom doing something he latter couldlawfully do without the servitude.

Art. 670. No windows, apertures,balconies, or other similar projectionswhich afford a direct view upon ortowards an adjoining land or tenementcan be made, without leaving a distanceof two meters between the wall in whichthey are made and such contiguousproperty.Neither can side or oblique views uponor towards such conterminous propertybe had, unless there be a distance ofsixty centimeters.The nonobservance of these distancesdoes not give rise to prescription.

Direct View— that which is obtainedfrom a wall parallel to the boundaryline, such that from the opening insuch wall, it is possible to see theadjoining tenement without thenecessity of putting out or turningone’s headSide or oblique view—that which isobtained from a wall a an angle withthe boundary line such that in orderto see the adjoining tenement, it isnecessary to put out or turn one’shead to the left or to the rightMere opening of windows in violationof the present article does not give

rise to the easement of light andview by prescription.

Art. 672. The provisions of Article 670are not applicable to buildings separatedby a public way or alley, which is notless than three meters wide, subject tospecial regulations and local ordinances.

Art. 673. Whenever by any title a righthas been acquired to have direct views,balconies or belvederes overlooking anadjoining property, the owner of theservient estate cannot build thereon atless than a distance of three meters tobe measured in the manner provided inArticle 671. Any stipulation permittingdistances less than those prescribed inArticle 670 is void. Art. 673. Wheneverby any title a right has been acquired tohave direct views, balconies orbelvederes overlooking an adjoiningproperty, the owner of the servientestate cannot build thereon at less thana distance of three meters to bemeasured in the manner provided inArticle 671. Any stipulation permittingdistances less than those prescribed inArticle 670 is void.

This article refers to a true servitude.Acquisition may be through contact,testament, or prescription. Distancemay be increased by stipulation ofthe parties. It may also be extendedby prescription.

(e)Drainage of Buildings

Art. 674. The owner of a building shallbe obliged to construct its roof orcovering in such manner that the rainwater shall fall on his own land or on astreet or public place, and not on theland of his neighbor, even though theadjacent land may belong to two ormore persons, one of whom is the ownerof the roof. Even if it should fall on hisown land, the owner shall be obliged tocollect the water in such a way as not tocause damage to the adjacent land ortenement.

Falling water is res nullius and hasno owner. Every owner of a houseor building would have aright todispose of it in any manner even tothe prejudice of neighbors had it notbeen for the provisions in this CodeLast sentence is an exception to Art637 which requires lower tenementsto receive water flowing naturallyfrom higher tenements.


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Art. 675. The owner of a tenement or apiece of land, subject to the easement ofreceiving water falling from roofs, maybuild in such manner as to receive thewater upon his own roof or give itanother outlet in accordance with localordinances or customs, and in such away as not to cause any nuisance ordamage whatever to the dominantestate.

Receive water through(1) another roof(2) another outletIn accordance with local ordinancesor customsNot a nuisance to the dominantestate

Art. 676. Whenever the yard or court ofa house is surrounded by other houses,and it is not possible to give an outletthrough the house itself to the rainwater collected thereon, theestablishment of an easement ofdrainage can be demanded, giving anoutlet to the water at the point of thecontiguous lands or tenements where itsegress may be easiest, and establishinga conduit for the drainage in suchmanner as to cause the least damage tothe servient estate, after payment of theproperty indemnity.

(f) Intermediate Distancesand Works for CertainConstructions and Plantings

Art. 677. No constructions can be builtor plantings made near fortified placesor fortresses without compliance withthe conditions required in special laws,ordinances, and regulations relatingthereto.

Art. 678. No person shall build anyaqueduct, well, sewer, furnace, forge,chimney, stable, depository of corrosivesubstances, machinery, or factory whichby reason of its nature or products isdangerous or noxious, without observingthe distances prescribed by theregulations and customs of the place,and without making the necessaryprotective works, subject, in regard tothe manner thereof, to the conditionsprescribed by such regulations. Theseprohibitions cannot be altered orrenounced by stipulation on the part ofthe adjoining proprietors.In the absence of regulations, suchprecautions shall be taken as may beconsidered necessary, in order to avoid

any damage to the neighboring lands ortenements.

Art. 679. No trees shall be planted neara tenement or piece of land belonging toanother except at the distanceauthorized by the ordinances or customsof the place, and, in the absencethereof, at a distance of at least twometers from the dividing line of theestates if tall trees are planted and at adistance of at least fifty centimeters ifshrubs or small trees are planted.Every landowner shall have the right todemand that trees hereafter planted at ashorter distance from his land ortenement be uprooted.The provisions of this article also applyto trees which have grownspontaneously. (591a)

Art. 680. If the branches of any treeshould extend over a neighboring estate,tenement, garden or yard, the owner ofthe latter shall have the right to demandthat they be cut off insofar as they mayspread over his property, and, if it bethe roots of a neighboring tree whichshould penetrate into the land ofanother, the latter may cut them offhimself within his property.

Owner of the neighboring tenementcan cut the roots without necessity ofnotice to the owner of the trees. Butas to the branches, it is necessary toas that they be cut.

Art. 681. Fruits naturally falling uponadjacent land belong to the owner ofsaid land.

(g) Easement against Nuisance

Art. 682. Every building or piece of landis subject to the easement whichprohibits the proprietor or possessorfrom committing nuisance throughnoise, jarring, offensive odor, smoke,heat, dust, water, glare and othercauses.

Art. 683. Subject to zoning, health,police and other laws and regulations,factories and shops may be maintainedprovided the least possible annoyance iscaused to the neighborhood.

Nuisance—that class of wrongs whicharise from unreasonable, unwarranted,or unlawful use by a person of his ownproperty and which produces materialannoyance, inconvenience, discomfort,

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or harm that the law will presume aconsequent damage.

Whether the effects of the use ofone’s property constitutes a nuisancedepends upon the circumstances.Their penetration into anothertenement in a limited measure ispermissible. Even if these effectscause material injury, they wouldconstitute a nuisance if they resultfrom the utilization of a tenement ina manner which is usual or current inthe locality.

(h) Easement of Lateral andSubjacent Support

Art. 684. No proprietor shall make suchexcavations upon his land as to depriveany adjacent land or building ofsufficient lateral or subjacent support.

Owner has a right to excavate on hisown land up to the boundary line ofthe building land. This easementprevents him from excavating soclose as to deprive the adjoiningestate of its natural support andcause it to crumble.There are cases where surfacebelongs to one person and substratamay belong to or be lawfully used byothers. This is where easement ofsubjacent support exists. Owners ofrights below the surface mayexcavate but this imposes upon themthe duty to refrain from removingsuch sufficient support which willprotect the surface from subsiding

Remedies for violation:(1) Action for damages(2) InjunctionAction may be maintained againstanyone who causes the injurywhether he is the owner or not.Contractor is liable jointly with theowner of the land. It is the personwho made the excavation whichcauses the injury and not the personin possession when the injury occurs,who is liable for damages.

Art. 685. Any stipulation ortestamentary provision allowingexcavations that cause danger to anadjacent land or building shall be void.

Art. 686. The legal easement of lateraland subjacent support is not only forbuildings standing at the time theexcavations are made but also forconstructions that may be erected.

Art. 687. Any proprietor intending tomake any excavation contemplated inthe three preceding articles shall notifyall owners of adjacent lands.

Notice enables the adjoining ownerto take the necessary precautions toprotect their lands and buildings. Itmust be sufficient to inform thenature and the extent of theproposed excavation.

Although person making the excavationhas given notice, he is bound to exercisereasonable care and skill so as not tocause damage.

XII. VOLUNTARY EASEMENTS

Art. 688. Every owner of a tenement orpiece of land may establish thereon theeasements

which he may deem suitable, andin the manner and form which hemay deem bestprovided he does not contravenethe laws, public policy or publicorder

Art. 690. Whenever the nakedownership of a tenement or piece of landbelongs to one person and the beneficialownership to another, no perpetualvoluntary easement may be establishedthereon without the consent of bothowners.

Art. 691. In order to impose aneasement on an undivided tenement, orpiece of land, the consent of all the co-owners shall be required.

The consent given by some only, mustbe held in abeyance until the last one ofall the co-owners shall have expressedhis conformity.

But the consent given by one of the co-owners separately from the others shallbind the grantor and his successors notto prevent the exercise of the rightgranted.

Art. 693. If the owner of the servientestate should have bound himself, uponthe establishment of the easement, tobear the cost of the work required forthe use and preservation thereof, hemay free himself from this obligation byrenouncing his property to the owner ofthe dominant estate.


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Who may establish voluntaryeasements:The OWNER possessing capacity toENCUMBER property may constitutevoluntary servitudes. (Art. 688)The usufructuary, and even thepossessor in good faith, does nothave the right to do so because thecreation of a servitude is adisposition of part of the right ofownership, and no one but anowner may do this.A general capacity to contract is notsufficient.If there are various owners, ALLmust CONSENT, but consent oncegiven is irrevocable. (Art. 690 and691)Hence, their consent need not besimultaneous.

In whose favor they are established:(a)Praedial Servitudes

For the owner of the dominantestateFor any other person having anyjuridical relation with thedominant estate, if the ownerratifies it.

(b)Personal ServitudesFor anyone capacitated to accept

In case of property under usufructThe usufructuary must not beprejudiced (Art 689)

Rights and ObligationsThese are determined by the—(1) Title, and(2) Possession (in case ofprescription enlarging ordiminishing the initial voluntaryeasement) (Art. 692)

Where the owner bound himselfto pay for the maintenance or dosome service he may abandon histenement and relieve himself of hisobligation (Art. 693)

To produce the transmission ofownership over the tenementabandoned, the abandonment mustbe made in the proper juridical formrequired for the transmission of theownership of immovable property.

XIII. NUISANCE

Art. 694. A nuisance is any act,omission, establishment, business,condition of property, or anything elsewhich: (HOSDU)(1) Injures or endangers the health orsafety of others;; or

(2) Annoys or offends the senses;; or(3) Shocks, defies or disregards decencyor morality;; or(4) Obstructs or interferes with the freepassage of any public highway or street,or any body of water;; or(5) Hinders or impairs the use ofproperty.Classification of NuisanceNature1. Nuisance Per Se or at Law2. Nuisance Per Accidens or in Fact

Scope Of Their Injurious Effects1. Public2. Private3. Mixed

Nuisance Per Se (Nuisance at Law)nuisance at all times and under anycircumstances, REGARDLESS OFLOCATION OR SURROUNDINGS.

Nuisance Per Accidens (Nuisance inFact)One that becomes a nuisance byreason of circumstances andsurroundings

Public NuisanceIt causes hurt, inconvenience, or injuryto the public, generally, or to such partof the public as necessarily comes incontact itpublic nuisance=common nuisanceIt is a direct encroachment upon publicrights or property which resultsinjuriously to the public

Private NuisanceOne which violates only private rightsand produces damages to but one or afew persons

Liability of Creator of NuisanceGeneral Rule: he who creates anuisance is liable for the resultingdamages and, ordinarily, his liabilitycontinues as long as the nuisancecontinues.He whose duty is to abate a nuisanceshould answer for the consequencesresulting from its continuanceNo one is to be held liable for anuisance which he cannot himselfphysically abateAll parties to the creation ormaintenance of a nuisance per se areresponsible for its effect withoutlimitation of conditions or of time.

Liability of TransfereesTo render him liable, he mustknowingly continue the nuisance, andgenerally, he is not liable for

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continuing it in its original form, unlesshe has been notified of its existenceand requested to remove it, or hasactual knowledge that it is a nuisanceand injurious to the rights of others.Nature of liability is solidary

Art. 697. The abatement of a nuisancedoes not preclude the right of anyperson injured to recover damages forits past existence.

Art. 698. Lapse of time cannot legalizeany nuisance, whether public or private.

No PrescriptionThe creation and maintenance of apublic nuisance is punishable criminallyhence, it should prevent theacquisition of a right to maintain it.

Art. 699. The remedies against a publicnuisance are:(1) A prosecution under the Penal Codeor any local ordinance (only for publicnuisance): or(2) A civil action;; or(3) Abatement, without judicialproceedings.

Judgment With Abatement

Art. 700. The district health officer shalltake care that one or all of the remediesagainst a public nuisance are availed of.

Art. 701. If a civil action is brought byreason of the maintenance of a publicnuisance, such action shall becommenced by the city or municipalmayor.

Art. 702. The district health officer shalldetermine whether or not abatement,without judicial proceedings, is the bestremedy against a public nuisance.

Art. 703. A private person may file anaction on account of a public nuisance, ifit is specially injurious to himself.

Special Injury to IndividualGENERAL RULE: a public nuisancegives no right of action to anyindividual but must be abated by aproceeding instituted in the name ofthe StateEXCEPTION: an individual whosuffered some special damage byreason of a public nuisance, differentfrom that sustained by the generalpublic, may maintain a suit in equityfor an injunction to abate it, or anaction for damages

In other words, a public nuisance isnot actionable by an individual unlessand until it becomes as to him, aprivate nuisance;; i.e., until he sufferssome special and definite harm.

Art. 704. Any private person may abatea public nuisance which is speciallyinjurious to him by removing, or ifnecessary, by destroying the thing whichconstitutes the same, withoutcommitting a breach of the peace, ordoing unnecessary injury. But it isnecessary:(1) That demand be first made upon theowner or possessor of the property toabate the nuisance;;(2) That such demand has beenrejected;;(3) That the abatement be approved bythe district health officer and executedwith the assistance of the local police;;and(4) That the value of the destructiondoes not exceed three thousand pesos.

Right of Individual to Abate a PublicNuisanceRequisites1. Must be exercised only in casesof urgent or extreme necessity2. Nuisance must be actuallyexisting at the time whenabatement is undertaken3. The summary abatement shouldbe resorted to within a reasonabletime after knowledge of thenuisance is acquired or should havebeen acquired by the personentitled to abate4. Must give a reasonable notice ofhis intention;; a demand must bemade5. The means employed must bereasonable6. The abatement must be approvedby the district health officer7. The property must not bedestroyed unless it is absolutelynecessary to do so;; the civil code,however, provides a limitation, thatthe value of destruction shall notexceed three thousand pesos8. The right must always beexercised with the assistance of thelocal police

Art. 705. The remedies against aprivate nuisance are:(1) A civil action;; or(2) Abatement, without judicialproceedings.


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Right to DamagesA person may maintain an action atlaw for damages caused by a nuisanceThe payment of damages is generallya mere reparation for past injuries,and not an authority to continue thewrong.each repetition of it gives rise to a newcause of action

Defenses to ActionPublic NecessityEstoppel

Art. 706. Any person injured by aprivate nuisance may abate it by:

removing, orif necessary, by destroying thething which constitutes thenuisance

o without committing abreach of the peace ordoing unnecessary injury

o procedure for extrajudicialabatement of a publicnuisance by a privateperson be followed

Who may sue on Private NuisancesOwnership of the legal title is notnecessary. Even a possessor may sue

Art. 707. A private person or a publicofficial extrajudicially abating a nuisanceshall be liable for damages:

(1) If he causes unnecessary injury;; or(2) If an alleged nuisance is laterdeclared by the courts to be not a realnuisance.

Remedies of Property OwnerHe may bring an action for replevin, orenjoin its sale and damages if it is hasbeen sold;; or action to enjoin privateparties from proceeding to abate asupposed nuisanceAsk court to determine WON it isindeed a nuisance

XIV. REGISTRY OF PROPERTY

Art. 708. The Registry of Property hasfor its object the inscription orannotation of acts and contracts relatingto the ownership and other rights overimmovable property.

ConceptThe Registry of Real Property may bedefined as a public center where thetrue condition of real estate is madeclear by registering all transferable

title of ownership and of real rightswhich affect it and even where thecapacity of free disposition on the partof an individual is modified

Purposes of the Principle of PublicityTo give notice of the true status of thepropertyTo record transmissions andmodifications of real rightsTo prevent fraudTo guarantee the effectivity of rights

Art. 709. The titles of ownership, or ofother rights over immovable property,which are not duly inscribed orannotated in the Registry of Propertyshall not prejudice third persons.

Art. 710. The books in the Registry ofProperty shall be public for those whohave a known interest in ascertainingthe status of the immovables or realrights annotated or inscribed therein.

Art. 711. For determining what titlesare subject to inscription or annotation,as well as the form, effects, andcancellation of inscriptions andannotations, the manner of keeping thebooks in the Registry, and the value ofthe entries contained in said books, theprovisions of the Mortgage Law, theLand Registration Act, and other speciallaws shall govern.

XV. DIFFERENT MODES OFACQUIRING OWNERSHIP

TITLE - the remote cause ofacquisitionEvery juridical right which gives a meansto the acquisition or real rights butwhich in itself is insufficient

MODE- the proximate cause ofacquisitionThe specific cause which producesdominion and other real rights as aresult of the co-existence of specialstatus of things, capacity, and intentionof persons and fulfillment of therequisites of law

Modes of acquiring ownership(POSTDI)1) Occupation2) Intellectual Creation3) Donation4) Prescription5) Succession6) Tradition

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XVI. PRESCRIPTION

It is the mode by which oneacquires ownership and other real rightsthru lapse of time;; also a means bywhich one loses ownership, rights &actions;; retroactive from the momentperiod began to runKinds:1. Acquisitive1. Extinctive

Comparison between AcquisitivePrescription and Extinctive PrescriptionAcquisitivePrescription

ExtinctivePrescription

Usurpacion PrescriptionIt is the possessorwho does the act

One looks at theneglect of theowner/ hisomission

Expressly vests theproperty andraised a new titlein the occupant

Statute oflimitation thatmerely bars theright of action

Important featureis the claimant inpossession

Important featureis the owner out ofpossession

Who may acquire by prescription:a. person who are capable ofacquiring property by other legalmodes

b. STATEc. minors – through guardians ofpersonally

Against whom prescription run:1. minors & incapacitated person

who have guardians2. absentees who have

administrators3. persons living abroad who

have administrators4. juridical persons except the

state with regards to propertynot patrimonial in character

5. between husbands & wife6. between parents & children

(during minority/insanity)7. between guardian & ward

(during guardianship)8. between co-heirs/co-owners9. between owner of property &

person in possession ofproperty in concept of holder

Things subject to prescription: all thingswithin the commerce of mena. private propertyb. patrimonial property of the state

Things not subject to prescription:1. public domain2. in transmissible rights3. movables possessed through acrime

4. registered land

Renunciation of prescription:persons with capacity to alienatemay renounce prescriptionalready obtained but not the rightto prescribe in the futuremay be express or tacitprescription is deemed to havebeen tacitly renounced;;renunciation results from the actsw/c imply abandonment of rightacquiredcreditors & persons interested inmaking prescription effective mayavail themselves notwithstandingexpress or tacit renunciation

Prescription Of Ownership & OtherReal Rights

Kinds of Acquisitive prescription1. ordinary2. extra-ordinary

Requisites for ordinary prescription:1. possession in good faith2. just title3. within time fixed by law

4 years for movables8 years for immovables

4. in concept of an owner5. public, peaceful, uninterrupted

Requisites for extra-ordinaryprescription:1. just title is proved2. within time fixed by law

10 years for movables30 years for immovables

3. in concept of an owner4. public, peaceful, uninterrupted

GOOD FAITH- Reasonable belief thatperson who transferred thing is theowner & could validly transmitownership-Must exist throughout the entireperiod required for prescription

JUST TITLE (TRUE & VALID) –must be proved & neverpresumeda) Titulo Colorado -b) Titulo putativo -title must be one which wouldhave been sufficient to


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transfer ownership if grantorhad been the ownerthrough one of the modes oftransferring ownership butthere is vice/defect incapacity of grantor totransmit ownership

IN CONCEPT OF OWNERpossession not by meretolerance of owner butadverse to that of the ownerclaim that he owns theproperty

PUBLIC, PEACEFUL &UNINTERRUPTEDMust be known to the ownerof the thingAcquired & maintained w/oviolenceUninterrupted (no act ofdeprivation by others) in theenjoyment of property

Interruptiona) Natural-through any cause, possession ceasesfor 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 solemnitiesplaintiff desist fromcomplaint/allow proceedings tolapsepossessor is absolved fromcomplainti. express or tacit

renunciationii. possession in wartime

RULES IN COMPUTATION OFPERIOD:

a. Present possessor may tack hispossession to that of his grantoror predecessor in interest

b. Present possessor presumed tobe in continuous possession Iintervening time unless contraryis proved

c. First day excluded, last dayincluded

Tacking Periodthere must be privity betweenprevious & present possessorpossible when there is succession ofrightsif character of possession different:predecessor in bad faith possessorin good faith – use extraordinaryprescription

Prescription of ActionsBy lapse of time fixed by law

30 years-action over immovables fromtime possession is lost10 years-mortgage action-upon written contract-upon obligation created by law-upon a judgement8 years-action to recover movables fromtime possession is lost6 years-upon an oral contract-upon a quasi-contract5 years-actions if periods are not fixed

by law4 years-upon injury to rights of plaintiff-upon a quasi-delict1 year-for forcible entry & detainer-for defamation

Rights not extinguished byprescription:1. demand right of way2. abate public /private nuisance3. declare contract void4. recover property subject toexpressed trust

5. probate of a will6. quiet title

XVII. TRADITIONRequisites:1. Pre-existence of right in estate ofgrantor

2. Just cause or title for thetransmission

3. Intention- of both grantor andgrantee

4. Capacity- to transmit and toacquire

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 Traditionb. Constructive Traditioni. Symbolic Deliveryii. Delivery by Public Instrumentiii. Traditio Longa Manu- “longhand”;; placed in the sight of

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vendee so that he can takepossession of the propertyanytime

iv. Traditio Brevi Manu- “shorthand”;; transferee already inpossession of the property butnot as owner

v. Traditio ConstitumPossessorium- owner remainsin possession but not as ownere.g. lease

vi. Quasi-Tradition- subjectmatter: property right;; e.g. rightto collect credit

vii. Tradition by operation of law

XVIII. LEASE

General Characteristics of EveryLease(1) Temporary duration(2) Onerous(3) Price is fixed according tocontract duration

Kinds of Lease(1) Lease of things—movables andimmovablesno lease for more than 99 yearsshall be valid

(2) Lease of work or contract oflabor

no relation of principal and agentdoes not exist between them.

(3) Lease of Servicesno principle of representationunlike in agencyThe will of both parties isnecessary for the extinguishmentof the obligation

(i)Lease ofService

Contract fora piece ofwork

Manner ofpaying theprice

The price ispaid inrelation totheduration ofthe labor orservice

In proportionto the workaccomplished

Existenceof arelation ofdependence betweenlessor andlessee

If the lessorworkstationunder thedirection ofthe lessee,receivinginstructionsfrom himon themanner ofrendering

If the lessorworks byhimself,independentlyof the lessee,in the mannerhe deemsmostadequate forthe executionof the work

service orlabor

Lease of things(1) Concept

Art. 1643. In the lease of things, one ofthe parties binds himself to give toanother the enjoyment or use of a thingfor a price certain, and for a periodwhich may be definite or indefinite.However, no lease for more than ninety-nine years shall be valid.

(2) Consumable things cannot be thesubject matter of lease, Except(a) consumables only for displayor advertising. eg. Weddingcakes for display inGoldilocks, wine in ashowcase of a store

(b) goods are accessory to anindustrial establishment e.g.,coal in a factory

(3) Special characteristics of lease ofthings;;(a) essential purpose is totransmit the use andenjoyment of a thing

(b) consensual(c) onerous(d) price fixed in relation toperiod of use or enjoyment

(e) temporary

(4) Lease distinguished from sale,usufrunct, commodatum

In case of doubt-INTENTION of theparties should be the guide in determiningthe contract entered into.Lease Sale

Only the use orenjoyment of thethings istransferred, andonly for adeterminate period

Plain redundancy tofix or mention theprice of the thingwhich is the subject-matter thereof

Price of the thingwas fixed in thecontract

May be in money, orin fruits, or in someother useful thing orsome otherprestation

Price must be inmoney or itsequivalent

Lease Usufruct


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Real right only byexception: whenregistered and formore than 1 year

Always a real right

Constitutor/Lessorneed not be anowner e.g.sublessor,usufruct

To constituteusufruct, constitutormust be the owner

Lessor places andmaintains lesseein the enjoymentof the thing

Owner merely allowsusufructuary to useand enjoy theproperty

Use is limited tothat written in thecontract

Includes all possibleuses and manner ofenjoyment ofproperty EXCEPT indistinction of normalor abnormal usufruct

Must be definite,otherwise courtmay fix the samethrough theproper action

Maybe for anindefinite period oftime

BOTH the lessee and the usufructuaryUSE and ENJOY the thing.

Lease CommodatumConsists in thecessation of the useof a thing toanother but this isessentially onerous

Consists in thecessation of a thingto another but thisis essentiallygratuitous

BOTH consist in the cession of the use ofa thing to another

(5) Price In LeasePrice may be in money, or infruits, or in some other usefulthings;; some other prestationTENANCY CONTRACT- when theprice consists of a certainpercentage of the fruits obtainedfrom the thing. But is regarded ashaving the character more of apartnership rather than a lease.

Amount of RentIf the parties are not able to fixthe price, or the basis for itsdetermination, the contract isABSOLUTELY VOID. If the lesseehas entered upon the possessionand enjoyment of the thing, hewill be liable for the damages forthe occupation of the thing.

(6) Period of leaseWhen the lease is for such timeas the lessor or lessee mayplease, it is considered as on forlife, ending upon the death of theparty who would have terminatedthe contract.

CANNOT be perpetual- theremust always be a period, whichmay be definite or indefiniteIf the period is indefinite, and thething leased is rural land,art.1682 shall apply;; if it is urbanland art. 1687 governs.If the thing is neither rural norurban land, the provisions of thetwo articles should be applied byanalogy.

(i) rural land

Art. 1682. The lease of a piece of ruralland, when its duration has not beenfixed, is understood to have been for allthe time necessary for the gathering ofthe fruits which the whole estate leasedmay yield in one year, or which it mayyield once, although two or more yearshave to elapse for the purpose.

(ii) urban land

Art. 1687. If the period for the leasehas not been fixed, it is understood tobe from year to year, if the rent agreedupon is annual;; from month to month, ifit is monthly;; from week to week, if therent is weekly;; and from day to day, ifthe rent is to be paid daily.

Rent Courts can fix a longer termmonthly lessee occupied premises for

more than a year

weekly lessee has been in possessionfor over six months

Daily lessee has stayed in the placefor over one month

Capacity of LesseeThose who are disqualified to buy certainthings cannot lease such things. (ART.1646, 1490,1491)

Lease of Real EstateEvery lease of real estate may berecorded in the Registry of Property tobe binding upon 3rd persons.

Purchase of Leased LandWhere a purchaser of land at thetime of the purchase has FULLKNOWLEDGE of the fact that the landhas been leased to a third person, heis BOUND to respect said lease,although it is not recorded upon thecertificate of title.

(7) Assignment of leaseArt. 1649. The lessee cannot assign thelease without the consent of the lessor,

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unless there is a stipulation to thecontrary.

However, a mere transfer ofrights of the lessee, and not ofthe contract itself, would notrequire the lessor’s consent,unless there is an expressstipulation to the contrary.

(8) Sublease

Art. 1650. When in the contract of leaseof things there is no express prohibition,the lessee may sublet the thing leased,in whole or in part, without prejudice tohis responsibility for the performance ofthe contract toward the lessor.

Assignment oflease

Sublease

There is a transferto a third person ofthe rights andobligations arisingfrom the leasecontract

Merely anothercontract of lease,where the originallessee becomes inturn a lessor

A sale of thelessee’s rights, andwhen the lessorgives his consent,the original lesseeis released

Even when thelessor consents tothe sub-lease, theoriginal leasecontract subsistsand is binding onthe lessee

Succession byparticular title toone contract oflease

Juxtaposition of 2leases

Effects(1) Remedy when property issubleased despite prohibition:recission and damages, ordamages only.

(2) When in the contract of lease,there is no expressprohibition, the lessee maysublet the thing leased, inwhole or in part, withoutprejudice to his responsibilityfor the performance of thecontract toward the lessor.

(a) House Rental Law (RA 877)—there is a presumption that therewould be no sublease unless thelessor allows it

(b) obligation of sublessee to lessor

Art. 1651. Without prejudice to hisobligation toward the sublessor, thesublessee is bound to the lessor for allacts which refer to the use and

preservation of the thing leased in themanner stipulated between the lessorand the lessee.

(i) for rents

Art. 1652. The sublessee is subsidiarilyliable to the lessor for lessee’s rent butnot responsible beyond the amount ofrent due from him at the time of theextrajudicial demand by the lessor.Payments of rent in advance by thesublessee shall be deemed not to havebeen made, so far as the lessor's claimis concerned, unless said payments wereeffected in virtue of the custom of theplace.

(ii) for the use and preservationof the thing leased

Without prejudice to his obligationtoward the sublessor, thesublessee is bound to the lessor forall the acts which refer to the useand preservation of the thingleased in the manner stipulatedbetween the lessor and the lessee.

(9) Rights and obligations of lessorand 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 conditionas to render it fit for the use intended;;(2) To make on the same during the

lease all the necessary repairs in orderto keep it suitable for the use to which ithas been devoted, unless there is astipulation to the contrary;;(3) To maintain the lessee in the

peaceful and adequate enjoyment of thelease for the entire duration of thecontract.

(i) Warranty of LessorIN the cases where the return ofthe price is required, REDUCTIONshall be made in proportion to thetime during which the lesseeenjoyed the thing.Art. 1547, 1555, 1561, 1566,1567, 1568, 1569Liability for the warranty is notequivalent to liability in damages.The lessor is liable for the warrantyof the thing leased against anyhidden defects it may have, evenwhen UNKNOWN to said lessor.But this liability for warranty of thething leased does not amount to anobligation to indemnify the tenantfor damages, which is only to be


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allowed, when lessor acted withfraud and in bad faith byconcealing the defect and notrevealing it to the lessee.

(ii) Making of RepairsIt implies the putting of somethingback into the condition in which itwas originally and NOT animprovementIt is the duty of the lessee to giveNOTICE of the need of repairs to thelessor, and he shall be liable for thedamages which by his neglect maybe suffered by the owner.Lessor is NOT bound to make repairscaused by the lessee himself.

Effect of Urgent RepairsDuring the lease it shouldbecome necessary to make someurgent repairs upon the thingleased, which cannot be deferreduntil the termination of the lease,the lessee is obliged to toleratethe work.If the repair lasts for more than40 days, the rent shall bereduced in proportion to thetime-including the 40 days- andthe part of the property of whichthe lessee has been deprived.When the work is of such anature that the portion which thelessee and his family need fortheir dwelling becomesuninhabitable, he may rescindthe contract if the main purposeof the lease is to provide adwelling for the lessee.If after having been notified, thelessor fails to make urgentrepairs, the lessee, to avoidimminent danger, may order therepairs at the lessor’s expense.

Dangerous ConditionsThe lessee may terminate thelease at once by notifying thelessor, even if at the time thecontract was perfected theformer knew of the dangerouscondition or waived the right torescind the lease on account ofthe condition.

Alteration

Art. 1661. The lessor cannot alter theform of the thing leased in such a wayas to impair the use to which the thing isdevoted under the terms of the lease.

(iii) Peaceful Possession

To maintain the lessee on thepeaceful and adequate enjoymentof the lessee for the entireduration of the contract.Failure to do so releases thelessee from the obligation to paywhat is stipulated in the contractfrom the date he ceased tooccupy the premises.

(b) obligations of lessee (Art.1657)

(i) Pay Rentarises only when the contract hasbeen actually carried into effectby the delivery of the thingleased to the lessee for thepurpose stipulated in thecontract.

Increase and Decrease of RentIncrease and decrease in theprice of lease shall be 10% peryear, net of the assessedviolation of the property

Failure to Pay for RentEviction, recover the unpaid rent,plus accrued legal interestthereon at the rate of 6% peryear.

Place and TimePayment of rent shall be made atthe domicile of the lessee;; andwith respect to the time, thecustom of the place shall befollowed.

ii. Use the Thing Leased as aDiligent FatherStandard: diligent father of afamily, in the absence ofstipulation, to that which may beinferred from the nature of thething leased, according to thecustom of the place.The lessee is responsible for thedeterioration of the thing leased,unless he proves that it tookplace without his fault.The lessee is liable for anydeterioration caused by membersof his household and by his guestand visitors.

iii. Pay Expenses for the Deed ofLease (Art. 1662-1667)

c. Right of lessee to suspendpayment of rentals

Art. 1658. The lessee may suspend thepayment of the rent in case the lessorfails to make the necessary repairs or to

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maintain the lessee in peaceful andadequate enjoyment of the propertyleased.

d. Right to ask for rescission

Liability for Breach of DutiesIf the lessor or lessee should notcomply with the obligation setforth in ART 1654 and 1657, theaggrieved party may ask for:(1) rescission of the contract;;(2) indemnification for

damages;;(3) only damages,allowing the contract toremain in force

The lessor cannot be heldresponsible for damages fromdefects unknown to both parties.

Alternative RemediesPerformance of the contract andrescissionIn either case, the aggrievedparty is entitled to such damagesbut may not upon rescission ofthe contract recover the damagesthat are appropriate only wherethe performance is demanded.

Rescission of the ContractWhere the plaintiff alleges andsubmits proof that the defendantis in possession of a parcel ofland as lessee, and the latter hasnot paid the proper rents, he maybe compelled, by reason of hisinability to pay to:(1) return the leasedproperty;;

(2) the lessor has aright to rescind thecontract;;

(3) recover the unpaidrents

(4) eject the tenantfrom the landThe execution of the deed shallbe equivalent to delivery but thisis a rebuttable presumption.If the thing leased has neverbeen placed in possession of thelessee, he has the remedy ofrescission.

Enforcement of LeaseWhere the lessor resumespossession of his leased propertyfor its protection after the lesseehas abandoned the same, thelessor has still the right to holdthe lessee responsible until thetermination of the lease.

(e) Lessor not obliged to answerfor mere act of trespass by athird person

(10) Grounds for ejectment oflessee by lessor

Termination of Lease(1) by the expiration of theperiod;;

(2) by the total loss of thething;;

(3) by the resolution of the rightof thelessor, such as when thelessor is usufruct isterminated;;

(4) by the will of the purchaser ortransferee of the things;;

(5) by rescission due tononperformance of theobligation of one of theparties.

PeriodIf at the end of the contract thelessee should continue enjoyingthe thing leased for fifteen dayswith the acquiescence of thelessor, and unless a notice to thecontrary by either party haspreviously given, it is understoodthat there is an implied newlease, not for the period of theoriginal contract but for the timeestablished in art. 1682(rural)and 1687(urban)When the parties have made noagreement and the tenantremains in possession with theacquiescence of the lessor for 15days after the expiration of theterm, the duration of the tenancyis governed by article 1682 and1687.

Tacit RenewalThe fifteen-day period whichbrings about a tacit renewal ofthe lease, is not applicable tosuccessive renewals.

Judicial EjectmentThe lessor may judicially ejectthe lessee for any of the followingcauses:(1) When the period agreedupon, or that which is fixedfor the duration of leasesunder Art 1682 (rural) and1687(urban), has expired;;


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(2) Lack of payment of the pricestipulated;;

(3) Violation of any of theconditions agreed upon in thecontract;;

(4) When the lessee devotes thething leased to any use orservice not stipulated whichcauses the deteriorationthereof, or if he does notobserve due diligence in itsuse.

When the lease contract does nothave a definite period, but isterminable upon 30 days notice,the lease will terminate upon theexpiration of 30 days from thereceipt of notice, whether thetermination coincides with therent day or not.The landlord has the right toincrease the rent after theexpiration of the stipulatedperiod. And if no period isstipulated, in a lease of urbanproperty, notice by the lessor ofan increase in rent is equivalentto notice of termination of theoriginal agreement.

(12) Right of purchaser ofleased land

Art. 1676. The purchaser of a piece ofland which is under a lease that is notrecorded in the Registry of Property mayterminate the lease, save when there isa stipulation to the contrary in thecontract of sale, or when the purchaserknows of the existence of the lease.If the buyer makes use of this right,

the lessee may demand that he beallowed to gather the fruits of theharvest which corresponds to the currentagricultural year and that the vendorindemnifies him for damages suffered.If the sale is fictitious, for the

purpose of extinguishing the lease, thesupposed vendee cannot make use ofthe right granted in the first paragraphof this article. The sale is presumed tobe fictitious if at the time the supposedvendee demands the termination of thelease, the sale is not recorded in theRegistry of Property.

Art. 1677. The purchaser in a sale withthe right of redemption cannot make useof the power to eject the lessee until theend of the period for the redemption.

Sale Of Leased PropertyThe purchaser which is under alease that is not recorded in theRegistry of Property may

terminate the lease except whenthe contract provided otherwiseor purchaser is aware of lease.If the buyer makes use of thisright, the lessee may demandthat he be allowed to gather thefruits of the harvest whichcorresponds to the currentagricultural year and that thevendor indemnify him fordamages suffered. This right doesnot extend to the gathering offishes, which require 2 yearsbefore they are of anycommercial value.The act of the new owner ofgiving notice of an increase ofrent, when the existing lease is ofan indefinite time, or when theoriginal period has expired,constitutes a notice oftermination of the original lease.

Right to RepurchaseThe purchaser in a sale with theright to redemption cannot makeuse of the power to eject thelessee until the end of the periodof redemption.But when the vendor remains inpossession as a tenant, and hefails to pay the agreed rent, hemay be evicted by the vendeeeven before the period ofredemption has expired.

(13) Useful improvements ingood faith made by lessee.

Indemnity For ImprovementsIf the lessee makes, in goodfaith, useful improvements thelessor upon the termination ofthe lease shall pay the lesseeone-half of the value of theimprovements at that time.

(14) Special provisions forleases of rural landsIt is urban when the principalpurpose is dwelling.It is rural when the principalpurpose is exploitation of the soil.

PROPERTY CIVIL LAW


XIX. DONATION

Characteristics:a) Unilateral – obligation imposed onthe donor

b) Consensual – perfected at time donorknows of acceptance

Requisites of Donation:(1) Consent and capacity of parties(2) Animus donandi (causa)(3) Delivery of thing donated(4) Form as prescribed by law

There must be impoverishment in factof donor’s patrimony and enrichment onpart of donee.

Requirements of a donation:1. subject matter – anything ofvalue;; present property & notfuture, must not impair legitime

2. causa – anything to support aconsideration: generosity,charity, goodwill, past service,debt

3. capacity to donate & dispose &accept donation

4. form – depends on value ofdonation

Kinds of Donation

A. As to its taking effect1. Inter Vivos (729, 730, 731)2. Donation mortis causa (728)3. Propter nuptias (Art. 82, 87Family Code)

o Nature of a donation is not made todepend by the title given by thedonor but by what is expressed.

o To determine whether mortis causaor inter vivos, nature of act, whetherit is disposition or execution, iscontrolling.

Inter vivosIn doubt, conveyance should bedeemed a donation inter vivos toavoid uncertainty as to theownership of the property.Where the ownership andpossession as well asadministration were turned overto the donee but right to reapand dispose of the fruits wasdeferred until after donor’sdeath, donation is inter vivosGeneral rule: Donation inter vivosis irrevocable EXCEPT:1. During the subsequent birthof the donor’s children

2. Failure of donee to complywhich conditions imposed

3. Ingratitude of donee;; and4. Reduction of the donation byreason of inofficiousness

Donation mortis causaA donation mortis causa not inthe form of a will is not valid anddoes not transmit any right.If the donor reserves the right todispose of all the propertiespurportedly donated, there is nodonation inter vivos but mortiscausa.

What rulesgovern

Intention of the parties prevail

ASTOWHENTHEYTAKEEFFECT

Intervivos –take effectduring thelifetime ofthe donor

Governed by therules oncontracts andobligations withregard toportions notprovided in thetitle ondonations ART732

if the intention is to make the donation effectiveduring the donor’s lifetime:ART 729: even if the thing donated is deliveredonly at the time of the donor’s death, it is intervivos and the fruits of the thing belongs to thedonee unless the donor provides otherwiseART 730: even if there is a fixing of an event orthe imposition of a suspensive condition whichmay take place beyond the natural expectationof the life of the donorART 731: If the resolutory condition is thedonor’s survival (i.e. if donor does not die, thedonation already effective shall terminate)

Mortiscausa –take effectupon thedeath ofthe donor

They partake ofthe nature iftestamentaryprovisions andare governed bythe rules onSuccession ART728


PROPERTY CIVIL LAW

B. As to Cause or Consideration1. Simple (Art.725)2. Remuneratory (Art.726)3. Onerous (Art.733)

(See Table in the appendix)

C. As to its Effectivity orExtinguishment1. Pure2. Conditional (730, 731)—donationis not carried out until the day comesbut it produces effects

With a term – He who donates with aterm has already disposed of thething donated and cannot revoke itnor can he dispose the thing in favorof another unless the donorpostpones execution and reservesthe right to revoke

Perfection of Donationpresumes a demandable juridicalrelation. The donor can no longerwithdraw and he can be compelled tocomply.Acceptance is necessary becausenobody is obliged to receive a benefitagainst his will.

When the donation and the acceptanceare in the same instrument, signedby both donor and donee, donationis perfected.After perfection, donation can only berevoked by the consent of the doneeor by judicial decree especially whenthe donation is onerous.

Mere declaration of an intention withoutintent to transfer is not a donationeven if accepted.

DONATION OF MOVABLES;; ART 748

Oral In writingValue of the thingdonated < or =P5,000

Value of thething donated> P5,000;;otherwise, void

Requiressimultaneousdelivery of thething or thedocument whichrepresents thething

WHEN PERFECTED: ACCEPTANCE BYTHE DONEE: GENERALLY

ART 734: Donation is perfected at themoment the donor knows of thedonee’s acceptanceWHO MAYACCEPT:

ART 745: Only thesepersons may accept;;otherwise, void1) donee personally2) authorized personwith a specialpower for thepurpose or with ageneral sufficientpower

WHEN TOACCEPT

ART 746: During lifetimeof donor and donee

DONATION OF IMMOVABLES:DONATION AND ACCEPTANCE

FORM OFDONATION

Public document

CONTENTSOFDONATION

Property donated isspecified and the value ofthe charges which thedonee must satisfy

FORM OFACCEPTANCE

Same deed of donationor in a separate publicdocument;; if separate,the donor shall benotified in an authenticform and this shall benoted in bothinstruments

WHEN TOACCEPT

During lifetime of donor

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DONOR DONEE

WHOARE

ALLOWE

D

ART 735: All persons who may contractand dispose of their propertyART 736: Donor’s capacity determinedat the time of the making of thedonation

ART 738;; All those not speciallydisqualified by law

WHOARENOTALLOWED

ART 736: Guardians and trustees withrespect to the property entrusted tothemART 739: Void donations:1) those made between persons guilty of adultery or concubinage at the timeof the donation (the declaration of nullity may be brought by the spouse ofthe donor or donee and only preponderance of evidence is needed)

2) those found guilty of the same criminal offense inconsideration thereofART 739 (3): public officer or his wife,descendants and ascendants by reasonof his officeART 740: Those who cannot succeed bywill cannot be doneesART 743: Donations made toincapacitated persons are void althoughmade under the quise of anothercontract

WITH

QUALIFICATI

ONS

ART 741: Minors may become doneesbut acceptance must be made throughtheir parents or legal representativeART 742: Donations made to unbornchildren may be accepted by personswho would legally represent them ifthey were already born

Who may receive?e. All those who are not speciallydisqualified by law – e.g.husband and wife duringmarriage, not propter nuptias

f. Even if incapacitated – e.g.minors, insane, etc. (acceptancemade through parents or legalguardian);; conceived and unborn(acceptance made through legalrepresentatives if they wereborn)

Capacity required is for dispositioninter vivos and not mortis causa. Bothcapacity to contract and the capacity todispose of property must exist in orderto have capacity to donate.Capacity to accept is also governed byrules on succession

Other persons disqualified to receivedonations:1. priest who heard confession of donorduring his last illness

2. relatives of priest within 4th degree,church, order, community wherepriest belongs

3. physician, nurse, etc. who took careof donor during his last illness

4. individuals, corporations,associations not permitted

5. Art. 2012 “Any person who isforbidden from receiving a donationunder Art. 739 cannot be namedbeneficiary of a life insurance policyby the person who cannot make adonation to him.”

Double DonationsApply double sales to double donations

Who may accept (Art. 745, 747)- donee personally or through

authorizedperson- representatives of incapacitatedmust make notification andnotation

If the donor dies before he learns of theacceptance, the donation does not takeeffect, even if the acceptance is madeduring the lifetime of the donor.

Form of Donations

(a) Personal property (Art. 748)

Document of donation need not be publicinstrument. When donation does notexceed P5,000, it may be made orally orin writing. If made orally, there must besimultaneous delivery. If no


PROPERTY CIVIL LAW

simultaneous delivery, donation is voidunless it is made in writing.

The law does not require that when thedonation is made in writing theacceptance should also be in writing (ifvalue does not exceed P5,000).

(b) Real property (Art. 749)

Art. 1357 is not applicable. Doneecannot bring an action to compel thedonor to execute a public instrument ofdonation. That article is applicable onlyto contracts which validly exist andcannot be held applicable to a casewhere the form is required in order tomake it valid.

Where the donor executed privateinstruments of donation and after hisdeath his only heir executed a publicinstrument ratifying the donation, suchpublic instrument cannot be consideredas having retroactively perfected thegift. It might serve as a quitclaim on thepart of the heir who is estopped fromasserting any right to the properties.

If the instrument of donation has beenrecorded in the registry of property, theinstrument that shows the acceptanceshould also be recorded.

If acceptance has been made but beforethe donor has been notified, the donordies, the donation is not perfected. Ifthe donor’s heirs ratify the donation and

the donee or his heirs accept, thedonation subsists but in reality it is anew and valid one.

While a donation of immovable propertynot made in a public instrument is noteffective as a transfer of title, it is acircumstance which may explain theadverse and exclusive character of thepossession of the intended donee andsuch possession may ripen intoownership by prescription.

Rules in Art. 748 and 749 notapplicable to:i. onerous donationsii. modal donationsiii. mortis causa donationsiv. donations propter nuptias

What may be given:All or part of donor’s presentproperty provided he reservessufficient means for the supportof the ff:himselfrelatives who by law are entitledto his supportlegitimes shall not be impairedwhen w/o reservation or ifinofficious, may be reduced onpetition of persons affectedexcept: conditional donation &donation mortis causaexcept: future property (Osoriovs. Osorio)

PROPERTY CIVIL LAW


WHAT MAY BE DONATEDART 750

All present property of thedonor or part thereof

LIMITATION: he reserves infull ownership or in usufruct,sufficient means for hissupport and of all relativeswho at the time ofacceptance of the donationare by law entitled to besupportedEFFECT OF NONRESERVATION: reduction ofthe donation

WHAT MAY NOT BEDONATED:

ART 751;; Donations cannotcomprehend future property;;those which the donor cannotdispose of at the time of thedonationART 752: No person may giveor receive by way of donationmore than what he may giveor receive by willEFFECT OF EXCESS:inofficious

DONATIONS MADETOSEVERAL PERSONSJOINTLY

ART 753: No accretion (i.e.one donee does not get theshare of the other doneeswho did not accept)

EXCEPTION: those given tohusband and wife exceptwhen the donor otherwiseprovides

WHAT THE DONEEACQUIRES WITH THETHING

ART 754: to be subrogated toall the rights and actions thatwould pertain to the donor incase of eviction

OBLIGATIONS OF THEDONOR

ART 754: No obligation towarrant

EXCEPT: when donation isonerousEFFECT: if the donor shall beliableThis also applies in case ofbad faith on his part withregard to hidden defects

WHAT MAY BE RESERVEDBY THE DONOR

ART 755: Right to disposemay be reserved

If donor dies withoutexercising this right, theportion reserved shall belongto the donee

USUFRUCT vs. OWNERSHIP ART 757: The ownership ofthe property may be donatedto one person and theusufruct to another

REVERSION ART 758: The donor mayprovide that the property willgo back to him or to anotherperson for any case orcircumstances

LIMITATION: The thirdperson should be living at thetime of the donationOTHERWISE: reversion isvoid but obligations subsists

OBLIGATION OF DONEE TOPAY DONOR’S DEBTS

ART 758: If the donationimposes this obligation on thedonee, only those debtspreviously contracted shall bepaid by said donee and in nocase shall he be responsiblefor debts exceeding the valueof the thing donated

EXCEPT: When contraryintention appears

IN FRAUD OF CREDITORS ART 759: If there is nostipulation for the donee topay debts, he shall only beresponsible when thedonation was made in fraudof creditors

PRESUMPTION that donationin fraud of creditors: when atthe time of donation, thedonor did not reservesufficient property to pay hisdebts prior to the donation


PROPERTY CIVIL LAW

In General(1) Donee may demand actualdelivery of the thing donated.

(2) Donee is subrogated to rights ofdonor in the propertydonated.

(3) Donor not obligated to warrantthings donated, except inonerous donations in which case,donor is liable for evictionup to the extent of the burden.

(4) Donor is liable for eviction orhidden defects in case of badfaith on his part.

Donations propter nuptias of propertysubject to encumbrances are valid.

Art. 85 FC-Effect of foreclosure-Donations by reason of marriage ofproperty subject to encumbrances shallbe valid. In case of foreclosure of theencumbrance and the property is soldfor less than the amount of theobligation secured, the donee shall notbe liable for the deficiency. If theproperty is sold than the total amount ofsaid obligation, the donee shall beentitled to the excess.

Donation to several donees jointly—noright of accretion Except1. donation provides otherwise2. donation to husband and wifejointly with right of accretion (jusaccrescendi), unless the donorprovides otherwise.

Special Provisions(1) Reservation by donor of power todispose (in whole or in part) or toencumber property donated.(755)

(2) Donation of naked ownership toone donee and usufruct toanother. (756)

(3) Conventional reversion in favor ofdonor or other person. (757)

(4) Payment of donor’s debt (758)(a) If expressly stipulated-doneeto pay debts contractedbefore the donation, unlessspecified otherwise, but in nocase shall the donee beresponsible for debtsexceeding value of propertydonated, unless clearlyintended

(b) If there is no stipulation-donee answerable only fordonor’s debt only in case ofdonation in fraud of creditors.Liability of the donee for thedebts of the donor should be

considered as limited to the valueof the thing donated.Creditors may demand therescission of the donation. If thecredits exceed the value of theproperty, the donee cannot beheld liable for such excess.If the donee has alienated theproperty to one who acquired it ingood and he is unable to returnit, he will be held liable indamages but the damages cannotexceed the value of the propertyitself.

Donations of Future Property (751)

Future property includes all propertythat belongs to others at the time thedonation is made, although it may ormay not later belong to the donor.BUT these can be donated:

1. properties to which the donorhas a RIGHT, although thedelivery of such properties to himmay be fixed for a future date2. those properties which pertainto him CONDITIONALLY, and will

become his upon the happening ofa suspensive condition.

Properties of an existing INHERITANCEcannot be considered future property ofthe heirs after the death of thepredecessor, because the rights of theheirs are acquired on the moment ofdeath, even if the delivery to them ofthe property may be delayed.

Revocation of Donations- applies only to donation inter vivos- not applicable to onerous donations

With regards to donations made byperson without children ordescendants at time of donation:1. If donor should have legitimate,legitimated or illegitimatechildren

2. If child came out to be alive & notdead contrary to belief of donor

3. If donor subsequently adopts aminor child

Action for revocation based on failureto comply with condition in case ofconditional donationsAction for revocation by reason ofingratitude1. Donee commits offense againstperson, honor, property of donor,spouse, children under hisparental authority

PROPERTY CIVIL LAW


2. Donee imputes to donor anycriminal offense or any catinvolving moral turpitude even ifhe should prove it unlessact/crime has been committedagainst donee himself, spouse orchildren under his parentalauthority

3. Donee unduly refuses to givesupport to donor when legally ormorally bound to give support todonor

Exception to rule onintransmissibility of action withregards to revocation due toingratitude:1. personal to the donor;; generalrule is heir cannot institute ifdonor did not institute

2. heirs can only file in the ff cases:a) donor has institutedproceedings but diesbefore bringing civil actionfor revocation

b) donor already institutedcivil action but died, heirscan substitute

c) donee killed donor or hisingratitude caused thedeath of the donor

d) donor died w/o havingknown the ingratitudedone

e) criminal action filed butabated by death

3. can only make heirs of doneeliable if complaint was alreadyfiled when donee died

Inofficious donations:1. shall be reduced with regards tothe excess

2. action to reduce to be filed byheirs who have right to legitimateat time of donation

3. donees/creditors of deceaseddonor cannot ask for reduction ofdonation

4. if there are 2 or more donation:recent ones shall be suppressed

5. if 2 or more donation at sametime – treated equally &reduction is pro rata but donormay impose preference whichmust be expressly stated indonation

KINDS OF DONATIONPure/Simple Remuneratory Conditional Onerous

a) ConsiderationMerits of donee

Liberality or merits ofdonee or burden/charge of pastservices provided theydo not constitutedemandable debt

Valuableconsideration isimposed but valueis less than value ofthing donated

Valuable considerationgiven

b) law to apply/formsLaw on donations

Law on donations Extent of burden Law on obligationsimposed>obliconexcess>donation

c) form ofacceptance

Required

Required Required Required

d) reservationw/regards topersonal support& legitimeApplicable

Applicable Applicable Not Applicable

e) warrantyagainst eviction& hidden defectsIn bad faith only In bad faith only In bad faith only Appliesf) revocationApplicable Applicable Applicable Applicableg) effect ofimpossible/illegal conditionsconsidered notwritten

considered not written considered notwritten

Obligation nullified


PROPERTY CIVIL LAW

MODES OF EXTINGUISHMENTBIRTH OF CHILD NON-FULFILLMENT OF

CONDITIONINGRATITUDE

Ipso jure revocation, noneed for action., courtdecision is merelydeclaratory

needs court action needs court action

Extent: portion which mayimpair legitime of heirs

Extent: whole portion butcourt may rule partialrevocation only

Extent: Whole portion returned

Property must be returned Property in excess Property to be returnedAlienation/mortgages doneprior to recording inRegister of Deeds:If already sold or cannotbe returned – the valuemust be returnedIf mortgaged – donor mayredeem the mortgage withright to recover fromdonee

Alienations/mortgagesimposed are void unlessregistered with Register ofDeeds

Prior ones are void;; demand valueof property when alienated andcan’t be recovered or redeemedfrom 3rd persons

Fruits to be returned at filingof action for revocation

Fruits to be returned at filingof complainant

Prescription of action is 4years from birth, etc.

Prescription is 4 years fromnon-fulfilment

Prescription is 1 year from knowledgeof fact and it was possible for him tobring action

Action cannot be renounced Action cannot be renouncedin advance

Right of action transmitted toheirs

Right of action at instance ofdonor but may be transmittedto heirs

Heirs can’t file action

Action extends to donee’sheirs

Action does not extend todonee’s heirs

PROPERTY CIVIL LAW


REVOCATION/ REDUCTION OF DONATIONBASIS TIME OF

ACTIONTRANSMISSIBILITY EFFECT LIABILITY

(FRUITS)Birth,appearance,adoption

Within 4 yearsfrom birth,legitimationand adoption

Transmitted tochildren anddescendants upondeath of donor

Propertyreturned/value (ifsold)/redeemmortgagewith right torecover

Fruits returnedfrom the filing ofthe complaint

Non compliancewith condition

Within 4 yearsfrom noncompliance

May be transmitted todonor’s heirs andmay be exercisedagainst donee’s heirs

Propertyreturned,alienationsandmortgagesvoid subjectto rights ofthird personin good faith

Fruits receivedafter havingfailed to fulfillconditionreturned

Ingratitude Within 1 yearafterknowledge ofthe fact

Generally nottransmitted to heirsof donor/donee

Propertyreturned butalienationsandmortgageseffectedbefore thenotation ofthecompliant forrevocation inthe registryof propertysubsist

Fruits returnedfrom the filing ofthe complaint

Failure toreserve sufficientmeans forsupport

At any time bythe donor orrelativesentitled tosupport

Not transmissible Reduced tothe extentnecessary toprovidesupport

Donee entitled

Inofficiousnessfor being inexcess of whatthe donor cangive by will

Within 5 yearsfrom death ofdonor

Transmitted todonor’s heirs

Donationtakes effecton thelifetime ofdonor.Reductiononly upon hisdeath withregard to theexcess

Donee entitled

Fraud againstcreditors

Rescissionwithin 4 yearsfrom theperfection ofdonation/knowledge ofthe donation

Transmitted tocreditor’s heirs orsuccessors in interest

Returned forthe benefit ofcreditor whobroughtaction

Fruits returned/if impossibleindemnifycreditor fordamages

02 property

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