de Leon Reviewer

Notes on

Property Kathryn TITLE I. – CLASSIFICATION OF

PROPERTY PRELIMINARY PROVISIONS

What is property?All things which are or may be the object of appropriation are considered property (Article 414).

As a subject in a law course, property is that branch of civil law which classified and defines the different kinds of appropriable objects, provides for their acquisition and loss, and in general, treats of the nature and consequences of real rights.

What are the characteristics of property?a. Utility – Capability of the thing to satisfy moral or economic wants

and human needs;b. Susceptibility – Independent existence;c. Appropriability – Susceptible to ownership.

How is thing distinguished from property?Thing is broader in scope for it includes both appropriable and non-appropriable objects.

As to their nature, what are the classifications of things?1. Res Nullius – things belonging to no one because they have not been

appropriated (like fish still swimming in the ocean), or because they have been abandoned (res derelictae) by the owner with the intention of no longer owning them. Other examples include wild animals (ferae naturae), wild birds, and pebbles lying on the sea shore.

2. Res Communes – those owned by everybody in that their use and enjoyments are given to all of mankind. Examples are the air we breathe, the wind, sunlight, and starlight.

3. Res Alicujus – objects which are owned privately, either collective or individual capacity.

How is property classified according to its nature and according to its ownership?According to its nature, property may be either:

1. Immovable or real property (Article 414);2. Movable or personal property (Article 414)

According to its ownership, it may either be:1. Of public ownership (Article 419); or2. Of private ownership (Article 419).

What is the importance of classification of property into immovables and movables?

1. formalities2. prescription3. to bind third persons

CHAPTER 1 – IMMOVABLE PROPERTY

What are the immovable properties enumerated by law? (Article 415)1. Land, buildings, roads and construction of all kinds adhered to the soil;

2. Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable;

Notes on

Property Kathryn 3. Everything attached to an immovable in a fixed manner, in such a way

that it cannot be separated therefrom without breaking the material or deterioration of the object;

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

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

6. Animal houses, pigeon – houses, beehives, fishponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included;

7. Fertilizer actually used on a piece of land;8. Mines, quarries, and slag dumps, while the matter thereof forms part of

the bed, and waters either running or stagnant;9. Docks and structures which, though floating, are intended by their nature

and object to remain in a fixed place on a river, lake or coast;10. Contracts of public works, and servitudes and other real rights over

immovable property.

What are the different classes of immovables?1. Immovable by nature, or those which cannot be moved from place to

place, such as those mentioned in Nos. 1 and 8 in Article 415 (trees, if they are spontaneous products of the soil; lands, roads, mines and quarries as well as sewers, regardless of any consideration);

2. Immovable by incorporation, or those which are attached to an immovable in such a manner as to form an integral part thereof, such as those mentioned in Nos.1 (buildings and other structures adhered to the soil except land and roads), 2, (if they were planted through labor), 3 and 4 of Article 415 (those attached to an immovable in a fixed manner, irrespective of ownership thereof);

3. Immovable by destination, or those which are placed in an immovable for the use, ornamentation, exploitation or perfection of such immovable, such as those mentioned in Nos. 4,5,6,7 and 9 of Article 415 (and machineries and other implements);

4. Immovable by analogy, or those which are considered immovables by operation of law, such as those mentioned in No. 10 of Article 415 (real rights over immovable).

Are uprooted trees immovable property?Uprooted trees are personal, except uprooted timber if the land is timber land.

What is the difference between paragraphs 3 and 4?Paragraph 3:

1. It cannot be separated from immovable without breaking or deterioration;

2. It need not be placed by the owner;3. It s real property by incorporation.

Paragraph 4:1. It can be separated from immovable without breaking or

deterioration;2. It must be placed by the owner, or by his agent, express or implied;3. It is real property by incorporation and destination.

Notes on

Property Kathryn A leased a building to B for a term of ten years. B established a shoe factory in the building and as a result he installed certain machineries therein. Are such machineries movables or immovables?

The machineries are movables. In order that the machineries can be classified as immovables within the meaning of Article 415 of the Civil Code, it is essential that the following requisites must concur:

1. The placing must be made by the owner of the tenement, his agent or duly authorized legal representative;

2. The industry or works must be carried on in the building or on the land;3. The machines, etc. must tend directly to meet the needs of said industry or

works;4. The machines must be essential and principal elements in the industry,

and not merely incidental.

What is the exception to paragraph 5?When placed on the land or tenement by a tenant? (Davao Sawmill vs. Castillo, 61 Phil. 709).

What is the exception to the exception?When the tenant had promised to leave the machinery on the tenement at the end of the lease, or when he acted as agent of the owner of the land. (Valdez vs. Central Altagracia, Inc., 225 U.S. 58).

May a building be considered a personal property?Yes, if there is a stipulation as when it is used as security in the payment of an obligation where a chattel mortgage is executed over it (Navarro vs. Central Altagracia, Inc. 225 U.S. 58). It may also be considered personal property if the building is bought for purposes of demolishing the same. In this case, the materials resulting from the demolition are being bought. Likewise, structures which are mere superimposition on the land, like barong- barong are not immovables.

A is the owner of a painting. He lent it to B who attached the same on the wall of his house to beautify it at its blessing with the obligation to return it within two days after the house blessing. Is the painting immovable?

No, it is movable due to the lack of intent to attach it permanently.

CHAPTER 2 – MOVABLE PROPERTY

What are the movable properties under the law? (Articles 416 and 417)

The following are deemed to be personal property:1. Those movables susceptible of appropriation which are not included in the

preceding article;2. Real property which by any special provisions of law is considered as

personalty;3. Forces of nature which are brought under the control by science;4. In general, all things which can be transported from place to place without

impairment of the real property to which they are fixed; and also5. Obligations and actions which have for their object movables or

demandable sums; and6. Shares of stock of agriculture, commercial and industrial entities, although

they may have real estate.

What are the tests to determine whether property is movable or immovable?

Notes on

Property Kathryn 1. If the property is capable of being carried from place to place (test by description).

Notes on

Property Kathryn 2. If such change in location can be made without injuring the real property

to which it may in the meantime be attached (test by description).3. If finally, the object is not one of those enumerated or included in Article

415 (test by exclusion).

What are the classifications of movable property according to its nature?Movable property is either;

A. (According to their nature) [Article 418]:1. Consumable– those which cannot be used in a manner appropriate to

their nature without their being consumed;2. Non- consumable – any other kind of movable property. (Article 418)

B. According to the intention of the parties (as to their possibility of being substituted by others of the same kind and quality):1. Fungible – can be replaced by an equal quality;2. Non-fungible – cannot be replaced, the identical object must be

returned.

CHAPTER 3 - PROPERTY IN RELATION TO THE PERSON TO WHOM IT BELONGS

How is property classified according to ownership? (Article 419)1. Of public dominion (dominio publico); or2. Of private ownership ( propriedad privado)

How may the State own property?Regarding the state, it may own properties both in its public capacity (properties of public dominion) and in its private capacity (patrimonial property)

How are properties of political subdivision classified?

1. Properties of public use – They cannot be alienated, and may not be acquired by prescription;

2. Patrimonial property – They may be alienated and acquired by prescription.

What are properties of public dominion? (Article 420)

1. Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the state, banks, shores, roadsteads, and others of similar character [may be used by anybody] (Article 420, No. 1).

2. Property for public use, in the provinces, cities, and municipalities, such as provincial roads, city streets, municipal streets, squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities, or municipalities (Article 420, par. 1).

3. Those intended for the development of national wealth – such as those which belong to the state, without being for public use, and are intended for some public service or for the development of the national wealth [like our natural resources] (Article 420, No. 2).

4. Those intended for public service such as the national government buildings, army rifles, army vessels.

What are the characteristics of property of public dominion?

1. They are outside the commerce of men;

Notes on

Property Kathryn 2. They cannot be appropriated;3. They cannot be alienated;4. They cannot be acquired by prescription;

Notes on

Property Kathryn 5. They cannot be subject to attachment or execution;6. They cannot be registered under the Land Registration Law and be the

subject of a Torrens Title;7. In general, they can be used by everybody; and8. They may be either real or personal property.

A portion of the town plaza of a municipality was leased to ABC Enterprises. Is the contract valid?No, because it forms part of the properties for public use of provinces, cities or municipalities. The town plaza is outside the commerce of men. (Villanueva vs. Castaneda, L-61311, September 21, 1987)

What is the Regalian Doctrine?It is the doctrine, which reserves to the State the full ownership of all natural resources or natural wealth that may be found in bowels of the earth.

May the Roponggi property in Japan be sold?No, because the said property is a property of the State intended for public use or public service (Article 420, Laurel vs. Garcia).

What are the patrimonial properties of the state or of provinces, cities and municipalities?

1. Those property of the state which are not intended for public use, or for public service, or for the development of the national wealth, as well as those property of provinces, cities and municipalities which are intended for public use are patrimonial. (Article 424)

2. The wealth owned by the state in its private character as distinguished from its public capacity.

3. Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the state. (Article 422)

May the patrimonial property of the State be acquired by prescription?They may be acquired by private individuals or corporations thru prescription.

What is meant by property of private ownership?Property of private ownership, besides patrimonial property of the state, provinces, cities and municipalities, consists of all property belonging to private persons, either individually or collectively (Article 425).

TITLE II. – OWNERSHIP CHAPTER 1 - OWNERSHIP IN GENERAL

What is ownership?Ownership is the independent and general right of a person to control a thing particularly in his possession, enjoyment, disposition, and recovery, subject to no restrictions except those imposed by the state or private persons, without prejudice to the provisions of law.How may ownership be exercised?Ownership may be exercised over things or rights. (Article 427)

What are the kinds of ownership?1. Full ownership – this includes all the rights of an owner;2. Naked ownership – this is ownership where the right to the use and the

fruits has been denied (as when the usufruct thereof has been granted to another).

3. Sole ownership – where the ownership is vested in only one person;4. Co-ownership – where the ownership is vested in two or more owners.

Notes on

Property Kathryn

What are the traditional attributes or elements of ownership?1. The right to enjoy which includes:

a. Jus utendi, or the right to use;b. Jus fruendi, or the right to enjoy the fruits;c. Jus Abutendi, or the right to consume the thing by its use;d. Jus possidendi or right to possess

2. The right to dispose (jus dispodendi), or the right to alienate, encumber, transform, or even to destroy the property.

3. The right to exclude others.

4. The right to vindicate (jus vindicandi), or the right of action available to the owner to recover the property against the holder or possessor. (Article 428).

What does the right to the fruits include?1. Natural;2. Industrial; and3. Civil

What are the limitations upon the right of ownership?

1. General limitations imposed by the State for its benefit, such as the power of eminent domain, the police power, and the power of taxation;

2. Specific limitations imposed by law, such as legal servitudes;3. Limitations imposed by the party transmitting the property either by

contract or by will; (Those given by the person (grantor) who gave the thing to its present owner.)

4. Limitations imposed by the owner himself, such as voluntary servitudes, mortgages, pledges, and lease rights; and

5. Inherent limitations arising from conflict with other rights, such as those caused by contiguity of property.

6. The constitutional prohibition regarding acquisition of real estate by aliens.

What is the doctrine of self help?The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonable necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. (Article 429)

When is force in defense of property justified? (Article 429)

1. Force must be employed by the owner or lawful possessor of the property;

2. There must be actual or threatened physical invasion or usurpation of the property;

3. The invasion or usurpation must be unlawful;4. The force employed must be reasonably necessary to repel the

invasion or usurpation.

What is the limitation of an owner in fencing or enclosing his land tenement? Every owner may enclose or fence his land or tenements by means of walls, ditches, live or dead hedges, or by any other means without detriment to servitudes constituted thereon. (Article 430)

What is the limitation of an owner in using his property?

Notes on

Property Kathryn The owner of a thing cannot make use thereof in such a manner as to injure the rights of a third person. (Article 431)

This is one of the fundamental bases of police power, and constitutes a just restriction on the right of ownership.

What is the doctrine of state of necessity? (Article 432)The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. The owner may demand from the person benefited indemnity for the damage to him.

What is the doctrine of incomplete privilege?The owner cannot refuse interference by another if such interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference is much greater.

What are the two disputable presumptions of ownership? (Article 433)

1. There must be actual possession; and2. There must be claim of ownership.

This applied to both immovable and movable property.

What are the requisites in an action to recover property? (Article 434)

1. The property must be identified;2. The plaintiff must rely on the strength of his title and not on the weakness

of the defendant’s claim.

What are the evidences which may be presented by the plaintiff to show his ownership?

1. Torrens certificate;2. Titles granted by the Spanish Government, like those effected by royal

cedula;3. Long and actual possession;4. Occupation of a building for a long time without paying rentals therefor.5. Testimony of adverse and exclusive possession of ownership corroborated

by tax declaration of properties, payment of taxes, and deeds of mortgage.

What are the essential requisites of eminent domain? (Article 148)1. Taking by competent authority;2. Observance of due process of law;3. Taking for public use;4. Payment of just compensation.

When can the State seize or condemn property? (Article 436)When it is for the interest of health, safety or security. In such a case, the owner thereof shall not be entitled to compensation, unless he can show that such condemnation or seizure is justified.

What is the basis of power of the State to seize and condemn properties of private ownership?The basis is police power of the State.

May the State abate nuisances?A State, in the exercise of police power, may abate nuisances.

What are the kinds of nuisances that may be abated by the State?

Notes on

Property Kathryn 1. Public nuisance – that which affects a community or a considerable

number of persons (Article 695);2. Private nuisance – that which is not public (Article 695);3. Nuisance per se – that which is a nuisance under all circumstances;4. Nuisance per accidens – that which us a nuisance only under certain

circumstances, like a factory, situated in a residential district.

A is the owner of a parcel of land consisting of ten hectares. What right does A have on the same?He can make constructions, works, plantations and excavations. (Article 437)

Is the right of A in the problem above absolute? Why?No, because it is subject to certain restrictions or limitations like servitudes, special laws, ordinances, requirements of aerial navigation and the principle of human relations. He cannot complain of the reasonable requirements of aerial navigation (Article 437).

What is the extent of the right of ownership of the owner of a parcel of land?The owner of a parcel of land is the owner of its surface and of everything under it. (Article 437)

Does it mean that if the owner of the land is the owner of everything under it, he is the owner of the minerals found in the land? Why?No, because ownership of minerals is reserved in favor of the state even if the land is a private land. In fact, he has no right to extract the minerals without the permission of the state.

What is hidden treasure?By treasure is understood, for legal purposes, any hidden or unknown deposit of money, jewelry, or other precious objects, the lawful ownership does not appear (Article 439).

To whom does hidden treasure which is discovered belong?Hidden treasure belongs to the owner of the land, building or other property on which it is found.

Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions, and by chance, one half thereof shall be allowed to the finder. If the finder is a trespasser, he shall not be entitled to any share of the treasure.

If the things found be of interest to science or the arts, the State may acquire them at their just price, which shall be divided in conformity with the rule stated. (Article 438)

X found a hidden treasure inside the land of Y. How will the treasure be divided if X is a usufructuary of the land; lessee; farmer; laborer hired to look for it?If X is a usufructuary, or lessee, or farmer, he is entitled to ½ of the hidden treasure because they are considered as strangers to the land.

If X is a laborer intended to look for it, he is entitled to his wage or salary only.

Suppose X in the problem above has an instrument to look for a hidden treasure, can he still be considered a finder by chance? Why?Yes, Spanish commentators on the Civil Code tend to tell us that “by chance” means there should be no purpose or intention to look for it.

Notes on

Property Kathryn The better rule, however, is that “by chance” means “good luck”, whether there was a deliberated search or not for the treasure, but no prior agreement as to how it is to be

Notes on

Property Kathryn divided. One who intentionally looks for it is embraced because if he does not ask for permission, he is a trespasser.

In order that the rule regarding the discovery of hidden treasures by a stranger on property belonging to another may be applied, what requisites must concur?

1. The treasure must consist of money, jewelry or other precious objects;2. It must be hidden and unknown;3. Its lawful ownership does not appear;4. The discovery must be made by chance; and5. The discoverer must be a stranger and not a trespasser.

CHAPTER 2. – RIGHT OF ACCESSION GENERAL PROVISIONS

Define accession.Accession may be defined as the right pertaining to the owner of a thing over everything which is produced thereby, or which is attached thereto, either naturally or artificially (Article 440).

Is accession a mode of acquiring ownership?From the very definition itself, it is clear that it is not a mode of acquiring ownership; it is merely a consequence of the right of ownership. Furthermore, under Article 712 of the Civil Code which enumerates the different modes of acquiring ownership or other real rights, accession is not included.

What are the different kinds of accession?1. Accession discreta (to the fruits)

1) Natural fruits;2) Industrial fruits; and3) Civil fruits

2. Accession continua (attachment or incorporation)1) With reference to real property

a. Accession industriala) Building;b) Planting; andc) Sowing

b. Accession naturala) Alluviumb) Avulsion;c) Change of course of rivers; andd) Formation of Islands

2) With reference to personal propertya. Adjunction or conjunction

a) Inclusion (engraftment);b) Soldadura (attachment);c) Tejido (weaving);d) Pintura (painting);e) Escritura (writing)

Notes on

b. Mixture (confusion – liquids; conmixtion – solids)c. Specification

SECTION 1. – RIGHT OF ACCESSION WITH RESPECT TO WHAT IS PRODUCED BY PROPERTY (ACCESSION DISCRETA)

What is accession discreta?It is the right to the ownership of the fruits produced by one’s property.

What are the kinds of fruits which belong to an owner?To the owner belongs:

1. The natural fruits – spontaneous products of the soil, the young and other products of animals;

2. The industrial fruits – Those produced by lands of any kind through cultivation and labor;

3. The civil fruits – Rent of buildings, price of leases of lands, etc. (Article 441).

Is the rule of accession discreta – that to the owner of the things belong the natural, industrial and civil fruits absolute in character?No, it is subject to the following exception:

1. If the thing is in the possession of a possessor in good faith in which case such possessor is entitled to the fruits (Article 544);

2. If the thing is subject to a usufruct in which case the usufructuary is entitled to the fruits (Article 566);

3. If the thing is leased, in which case the lessee is entitled to the fruits of the thing, although such lessee must pay the owner rentals which are in the nature of civil fruits (Article 1654);

4. If the thing is in the possession of an antichretic creditor in which case such creditor is entitled to the fruits with the obligation of applying them to the interest and principal (Article 2132). [Antichresis is a contract by virtue of which the creditor acquires the right to receive the fruits of an immovable of his debtor, with the obligation to apply them to the payment of interest, if owing, and thereafter to the principal of his credit.]

What is the meaning of natural, industrial and civil fruits?Natural fruits are the spontaneous products of the soil, and the young and other products of animals.

Industrial fruits are those produced by lands of any kind through cultivation or labor.

Civil fruits are the rents of buildings, the price of leases of lands and other property and the amount of perpetual or life annuities or other similar incomes (Article 442).

To whom does the offspring of animals belong when the male and female belong to different owners? (p. 204)Applying the principle of partus sequitur ventrem, the offspring belongs to the owner of the female (Article 441. No. 1)

A leased a female animal from B. During the period of the lease, the animal produced sibling. Who owns the young?A owns the young, because the contract of lease is onerous. It should also be observed that by virtue of the contract of lease, the general rule that the owner of the female is also the owner of the young must give way.

Notes on

Suppose that A was merely given the animal by way of commodatum (gratuitous borrowing), who is the owner of the young?The owner of the female retains ownership in view of the gratuitous contract.

What is the duty of the recipient of fruits to third persons who incurred expenses in their production, gathering and preservation?He who receives the fruits has the obligation to pay the expenses made by a third person in their production, gathering and preservation (Article 443).

Note that the fruits referred to here are gathered fruits. Owner should pay for the expenses of cultivation, gathering and preservation irrespective of good faith or bad faith to prevent unjust enrichment.

The rule is different with respect to ungathered fruits. When the possession is interrupted and in bad faith, no reimbursement is due (Article 449 pursuant to the principle of accession continua).

Applications:

A is the owner of a piece of land upon fruits were grown, raised, harvested andgathered by B in bad faith. Who should be considered the owner of the fruits?A should be considered the owner of the fruits since he is the owner of the land, and B is a planter in bad faith but must reimburse B for the expenses for production, gathering and preservation. The reason for reimbursing B even though he is in bad faith, is to that were it not necessary cultivation expenses, there would not be any fruits grown at all, or left or preserved. Thus Article 443 is merely in consonance with the principle that no one may enrich himself unjustly at another’s expense.

Is Article 443 applicable if the planter is in good faith?Article 443 does not apply when the planter is in good faith, because in this case, he is entitled to the fruits already received, hence there is no necessity of reimbursing him (See Article 544)

What is the characteristic of the expenses referred to in Article 443?1. They must have been used for production, gathering, or preservation,

and not for the improvement of the property;2. They must have been necessary, and not luxurious or excessive. They

must be commensurate with those ordinarily necessitated by the product.

What are considered natural or industrial fruits?Only such as are manifest or born are considered as natural or industrial fruits.

With respect to animals, it is sufficient that they are in the womb of the mother, although unborn (Article 444).

How are the rules for civil fruits distinguished from natural and industrial fruits? Civil fruits accrue daily (Article 554) and are therefore considered in the category of personal property; natural and industrial fruits, while still growing, are real property;

1. Civil fruits can be pro-rated; natural and industrial fruits ordinary cannot.

SECTION 2. – RIGHT OF ACCESSION WITH RESPECT TO IMMOVABLE

PROPERTY

To whom does accession continua (accession industrial) belong?

Notes on

Whatever is built, planted or sown on the land of another and the improvements or repairs made thereon, belong to the owner of the land, subject to the provisions of the following articles (article 445).

What are the basic principles in accession industrial?1. If removal can be achieved without destruction, rules on accession

are inapplicable;2. The accessory follows the principal;3. The principles of unjust enrichment are generally applicable;4. As against a person in good faith, one who is in bad faith not only

loses his rights but may be held liable for damages.

What are the two disputable presumptions if there are works, sowing, and planting on a land?

All works, sowing, and planting are presumed (1) to be made by the owner and (2) at his expense, unless the contrary is proved (Article 446).

Rules: Owner of Materials If both in good faith:

1. LO

2. OM

a. shall pay their value

a. right to remove them without injury to the work constructed3. If LO in bad faith

a. pay the value plus damagesb. OM can remove whether or not it destroys the work, with

damages

Builder, sower and planter1. If both in good faith

a. LO has right to appropriate after paying necessary and other expenses; OR

b. To oblige the BP to pay the price and the S to pay rentc. But, the second option is not available if the value of the land

is higher than the building or trees. In such case, pay rent it the owner does not choose to appropriate

2. If BPS in bad faith

a. BPS loses everything but necessary expenses are reimbursedb. LO may:

b.1 demand demolition at expense of BPS;b.2 OR compel BP to pay the price of the land and S the proper rent

b.3 any option entitles him to damages

3. If LO in bad faith

a. pay value plus damagesb. remove even if it destroys, with damages

If the materials belonged to third person, LO subsidiarily liable

Outline of accession industrial

Notes on

O - Owner of landB - BuilderM - Owner of materials

1. Article 447 1

a. OB – in good faithM – in good

faith

(a) OB - right of appropriation(b) M - 1. right of reimbursement

2. limited right of removal

b. OB – in bad faith M – in good faith

(a) OB- no right(b)M- 1. right of reimbursement plus damages

2. absolute right of removal plus damages

2. Article 448 2

O - in good faith BM - in good faith

a. O –

1) right of appropriation2) right to demand price of land or rent

b. BM –

1) right of reimbursement of necessary and useful expenses if O elects first option

2) right of retention if O elects first option

3. Articles 449-452 3

1 Article 447. The owner of the land who makes thereon, personally or through another, plantings, constructions or works with the materials of another, shall pay their value; and if he acted in bad faith, he shall also be obliged to the reparation of damages. The owner of the materials shall have the right to remove them only in case he can do so without injury to the work constructed, or without the plantings, constructions or works being destroyed. However, if the landowner acted in bad faith, the owner of the materials may remove them in any event, with a right to be indemnified for damages.

2 Article 448. The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in Articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such a case, he shall be pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree the terms of the lease and in case of disagreement, the court shall fix the terms thereof.

Notes on

O - in good faith BM - in bad faith

(a) O –

1) Right of appropriation plus damages2) Right to demand removal or demolition plus damages3) Right to demand price of land or rent plus damages

(b) BM - no right except reimbursement of necessary expenses for preservation of land.

4. Article 453 4

O - in bad faith BM - in bad faith

(same as Article 448)

5. Article 454 5

O - in bad faith BM - in good faith

(same as Article 447)

6. Article 455 6

a. O - in good or bad faith B - in good or bad faith

3 Article 449. He who builds, plants or sows in bad faith on the land of another, loses what is built, planted or sown without right to indemnity.

Article 450. The owner of the land on which anything has been built, planted or sown in bad faith may demand the demolition of the work, or that the planting or sowing be removed, in order to replace things in their former condition at the expenses of the person who built, planted or sowed; or he may compel the builder or planter to pay the price of the land, and the sower the proper rent.

Article 451. In the cases of the two preceding articles, the landowner is entitled to damages from the builder, planter or sower.

Article 452. The builder, planter or sower in bad faith is entitled to reimbursement for the necessary expenses of preservation of the land.

4 Article 453. If there was bad faith, not only on the part of the person who built, planted or sowed on the land of another, but also on the part of the owner of such land, the rights of one and the other shall be the same as though both acted in good faith.

It is understood that there is bad faith on the part of the landowner whenever the act was done with his knowledge and without opposition on his part.

5 Article 454. When the landowner acted in bad faith and the builder, planter or sower proceeded in good faith, the provisions of Article 447 shall apply.

6 Article 455. If the materials, plants or seeds belong to a third person who has not acted in bad faith, the owner of the land shall answer subsidiarily for their value and only in the event that the one who made use of them has no property with which to pay.

Notes on

This provision shall not apply if the owner makes use of the right granted by Article

450. If the owner of the materials, plants and seeds has been paid by the builder, planter or sower, the latter may demand from the landowner the value of the materials and labor.

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(a) First determine the rights of O and B(b) Then M can hold B primarily liable and O subsidiarily liable,

except under Article 450.

b. O - in good or bad faith B - in good or bad faith M - in bad faith

(a) First determine the rights of O and B(b) Then with respect to M, apply Articles 449-452 since B

shall be considered agent of M.

A” plants, in bad faith, on his on land, palay seeds belonging to “B”. What are the rights and obligations of the parties?

“A” shall pay to “B” the value of the palay seeds and, at the same time, indemnify him for any damage which he may have suffered. “B” on the other hand, may choose between demanding from “A” the payment of the value of the palay seeds plus damages or the removal of the palay seeds with or without injury to the planting, plus damages (Article 447).

Suppose that in the above problem, “A” had acted in good faith, what are the rights and obligations of the parties?

“A” shall pay “B” the value of the palay seeds. “B” on the other hand, may choose between demanding from “A” the payment of the value of the palay seeds or the removal of such palay seeds, provided that it can be done without the planting being destroyed.

X built a house on the land of Y in good faith. What are the rights of the parties?

The rights of the owner of the land are:

He can appropriate the house upon payment of indemnity. The phrase “upon payment of indemnity” means that X has the right to retain the house for as long as Y has not yet paid the indemnity; or

He has the right to sell the land of the builder in good faith. He can compel the builder to buy the land, unless the value of the land is considerably more than the value of the building. If so, then the builder must pay rent.

The right of the builder is to ask for indemnity if the landowner opts to appropriate the house. The reason for this is that the appropriation without compensation would amount to solution indebiti. Anyway, X is in good faith.

In the problem above, can Y file a suit for ejectment and pray for demolition upon knowing that X built his house on his land?

No, he has yet to make a choice. If he has not yet done so, he cannot ask for ejectment of X. But if he opted to sell the land where the value of the same is not considerably more than the value of the house, and the builder does not pay the land, then X can be ejected (Ignacio vs. Hilario, 76 Phil. 605). If he cannot pay, he should not be allowed to continue using the land (Tayag vs. Yuseco, Apruil 16, 1959).

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Suppose that the owner of the land should avail himself of the second remedy provided for in Article 448 of the Civil Code – compelling the builder in good faith to pay the value of the land – but such builder fails to pay, does he become automatically the owner of the builder?

Under Articles 448 and 546 of the Civil Code, the owner of the land has the right to choose between appropriating the building by reimbursing the builder the value thereof or compelling the builder to pay for his land. Even this second right cannot be exercised if the value of the land is considerably more than that of the building. In addition to the right of the builder to be paid the value of his improvement, Article 546 gives him the corollary right of retention of the property until he is indemnified by the owner of the land. There is nothing in the language of these two articles which would justify the conclusion that upon the failure of the builder to pay the value of the land, when such is demanded by the landowner, the latter becomes automatically the owner of the improvement under Article 445 (Filipinas Colleges, Inc, vs. Timbang, G.R. Nos. L-12812- 12813, Sept. 29, 1959).

What then is the remedy left to the owner of the land if the builder fails to

pay?

While the Civil Code is silent on this point, guidance may be derived from decisions of the Supreme Court, thus: (1) In Miranda vs. Fadullan, 51 O.G 6226, the Supreme Court said that the parties may decide to leave things as they are and assume the relation of lessor and lessee, and should they disagree as the amount of rental they can go to the court to have the amount fixed. (2) Should the parties not agree to assume the relation of lessor and lessee, another remedy is suggested in Iganacio vs. Hilario 76 Phil. 605, wherein the Supreme Court ruled that the owner of the land is entitled to have the improvement removed when after having chosen to sell his land the builder in good faith fails to pay for the same. (3) A further remedy is indicated in Bernardo vs. Bataclan, 66 Phil. 590, where the Supreme Court approved the sale of the land and improvement in the public auction applying the proceeds thereof first to the payment of the value of the land and the excess, if any, to be delivered to the owner of the house in payment thereof (Filipinas Colleges, Inc. vs. Timbang, supra).

X owns a parcel of land. Y built a house on it. The land is worth P1 Million. The house is worth P300, 000.00. Y is a builder in good faith. Can X compel Y to buy the land? Why?

No, because the value of the land is considerably more than the value of the building.

In this case, the remedy is forced lease (Article 448).

If the landowner chooses to appropriate the building, can the builder ask the owner of the land to sell it instead? Why?

No, because the option to appropriate the building or sell the land belongs to the landowner. The only right of the builder in good faith is the right of reimbursement, not to compel the owner of the land to sell (Quemuel vs. Olaes, 1 SCRA 1159). The option is not to buy but to sell. The option is given to the landowner because his right is older; and because of the principle of accession, he is entitled to the thing attached to his land.

May a lessee be a builder in good faith?

No. In Frederico Geminiano, et al., G.R. No. 120303, July 24, 1996, it was held that lessees are not builders in good faith. They came into possession of the lot by virtue of a contract. They are then estopped to deny their landlord’s

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title, or to assert a better title not

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only in themselves, but also in some third person while they remain in possession of the leased premises and until they surrender possession t the landlord.

Can the owner of the land remove the constructions?

Since removal is not one of the remedies bestowed upon him by law, it would be available only if and when he chooses to compel the builder to buy the land at a reasonable price, but if the latter does not do so, his options are limited to (1) appropriating the building after payment of proper indemnity; or (2) obliging the latter to buy the lot occupied by the structure. He cannot exercise a remedy of his own liking (Tecnogas Phils. vs. CA, G.R. No. 108894, February 10, 1997).

What are the rights, of any of a builder in bad faith?

As a rule, he has no right. But he is entitled to reimbursement for necessary expenses for the preservation of the land, not the value of the building (Article 452). The reason for this rule is, after all, the owner would have borne the same expenses of preservation of the land.

What are the rights of the owner of the land in case there is a builder in bad faith?

1. To appropriate the building without payment of indemnity plus damages. In this case, the builder is like a donor;

2. He can demand the demolition of the house plus damages;3. He can compel the builder to buy the land even if the value is

considerably more than the value of the building plus damages (Article 450 and 451).

May a builder in good faith retain possession of the land and the building in case the landowner appropriates the building but has not yet paid its value? How about if the builder is a lessee?

Yes. The builder in good faith can retain possession of the land and the building if the landowner has not yet paid the value of the improvement. This is so because of his being a builder in good faith.

If it is a lessee, then the right of retention is not available because he is not a possessor in good faith.

A is the owner of the land and B is the builder, C , third person, had furnished materials in the construction of the building, there is still a balance of P8, 200 which has not yet been paid to him by B. Suppose that, instead of availing himself of any of the three remedies specified above, the owner of the land chose to seek recovery by asking for a writ of execution, and subsequently, properties of the builder including the house are levied upon and sold at public auction with the owner for the land as highest bidder, what is the effect upon the rights of the parties?

Such a remedy will prejudice the owner of the land. When there is a claim of a third party to the proceeds of the sale superior to the claim of the owner of the land, the execution creditor, as successful bidder, must pay his bid in cash as a condition precedent to the issuance to him of the certificate of sale, in the instant case, a third party has an unsatisfied claim of P8, 200 against the builder which constitute a lien on the building as specifically provided in Article 2252 of the Civil Code. As such, it is superior to the claim of the owner of the lad

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insofar as the proceeds of the sale of said building are concerned.

Notes on

Hence, the owner f the land as successful bidder must pay in cash the amount of his bid. As a matter of fact, such remedy will now result in the continuation of the involuntary partnership between the owner of the land and the builder, because the proceeds of the same, in effect, will now constitute a partial payment of the value of the land (Filipinas Colleges, Inc. vs. Timbang, supra).

A and B unknowingly built a portion of their house on a lot belonging to X and Y. Subsequently, the latter brought an action for recovery of the lot, including a portion upon which a part of the house is built. The trial court, after trial, ordered the former to vacate the land and to pay a monthly rental of P10,000 form the filing of the complaint until they vacate the same. Is the decision correct?

In Grana and Toralba vs. Court of Appeals, G.R. No. L-12486, August 31, 1960, it was held that A and B are in good faith; consequently under Article 448 of the Civil Code, A and B has the choice of either appropriating the portion of the house of A and B which is on their land upon payment of the proper indemnity, or selling to A and B that part of the land on which the improvement stands. However, it would be impractical for them to choose the first alternative for the whole building might be rendered useless. The more workable solution is for them to sell to A and B the part of their land on which the house is built. Of course, this is not possible if the value of the land is considerably more than that of the house. If such be the case, then A and B must pay reasonable rent. The parties must come to an agreement as to the conditions of the lease, and should fail to do so, then the court shall fix the same. (Article 448, Civil Code). In this connection, the trial court erred in ordering A and B to pay a monthly rental of P10, 000 from the date of the filing of the complaint until they vacate the land. A builder in good faith may not be required to pay the rental. This is so because he has a right to retain the land on which he has built in good faith until he is reimbursed the expenses incurred by him.

“A” built a garage on a lot adjoining his property knowing it to belong to “B.” “B”, who was aware thereof, offered no objection. What are the rights and obligations of the parties?

Since both “A” and “B” had acted on bad faith (Article 453, par 1,CC). Consequently, “B” shall have the right to appropriate the garage as his own, after payment of necessary and useful expenses to “A” t in accordance with Articles 546 and 548 of the Civil Code, or to oblige “A” to pay the price of the land. It must be noted, however, that “A” cannot be obliged to buy the land if its value is considerably more than that of the garage. In such case, he shall merely pay reasonable rent, if “B” does not choose to appropriate the garage. (Article 448, CC).

If a certain person builds, plants or sows in bad faith on land belonging to another, who is in good faith, what are the rights and obligations of the parties?

In such case, the owner of the land may either:

1. Appropriate whatever has been built, planted or sown without indemnifying the builder, planter, sower for the value of the materials (Article 449,CC); or

2. Demand the demolition of the works or the removal of the building, planting or sowing, in order to restore things to their former condition at the expense of the builder, planter or sower (Article 450,CC); or

3. Compel the builder or planter to pay the price of the land, and the sower the proper rent (Article 450, CC).

Notes on

Whatever options he may choose, he can also recover damages from such builder, planter or sower (Article 451, CC).

The builder, the planter or sower, on the other hand, has no right whatsoever except the right to be reimbursed for necessary expenses which he may have incurred for the preservation of the land (Article 452, CC).

What is meant by good faith and bad faith in accession?

As applied to the builder, planter or sower, good faith consists in ignorance of the ownership of another, while bad faith consists in the knowledge of such ownership. In other words, there is good faith if he is not aware that there is a flaw or defect in his title or mode of acquisition which invalidates it, while there is bad faith if he is aware of such flaw or defect (Article 526).

As applied either to the owner of the land or to the owner of the materials, good faith consists in the ignorance of the acts of the builder, planter or sower, or if he was aware of such acts, there was opposition on his part, while bad faith consists in knowledge of such acts and without opposition on his part (Article 453, par. 2).

May good faith co-exist with negligence?

Good faith does not necessarily exclude negligence, which gives right to damages under Article 2176 (Article 456).

ACCESSION NATURAL

Who owns the accretion gradually received by a land from the effects of the current of waters?

To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the river (Article 457).

What are the forms of accession natural?

1. Alluvium (Article 457);2. Avulsion (Article 459);3. Change of course of rivers (Articles 461 – 462); and4. Formation of islands (Articles 464 – 465).

What is alluvium?

Alluvium (or alluvio) is the soil deposited or added to (accretion) the lands adjoining the banks of rivers, gradually received as an effect of the current of the waters. By law, the accretion is owned by the owner of the estate fronting the river bank (riparian owner).

Differentiate between alluvium and accretion.

Although often used synonymously in connection with Article 457, there are technical differences between alluvium and accretion:

1. Accretion is the process whereby the soil is deposited, while alluvium is the soil deposited on the estate fronting the river bank; the owner of such estate is the riparian owner;

Notes on

2. Accretion is a broader term because alluvium, strictly speaking, applies only to the soil deposited on river banks. It is possible that a soil deposit be made also on the banks of lakes. In this case, although it is an accretion, it is not called alluvium, although the rule as to ownership is the same.

What are the essential requisites of alluvium?

1. The deposit should be gradual and imperceptible (as a process);2. The cause is the current of the river (and not due to works expressly

designed for the purpose);3. The current must be that of a river (if a lake, the Spanish Law on Waters

must apply; if the sea, the deposit belongs to the State);4. The river must continue to exist (otherwise, if the river disappears,

Articles 461 and not Article 457 should apply);5. The increase must be comparatively little, and not, for example, such as

would increase the area of the riparian owner by over one hundred fifty percent).What should the riparian owner do so that the accretion will belong to him?

It is not necessary that the riparian owner should make an express act of possession, the accession being automatically his the moment the soil deposit can be seen.

Why does the law vest automatically the ownership of the alluvium to the riparian owner? (What are the reasons why alluvium is granted to the riparian owner?)

a. To compensate him for the loss he may suffer due to erosion or the destructive force of the water and danger from floods;

b. To compensate him because the property is subject to encumbrances and legal easements;

c. The interests of agriculture require that the soil be given to the person who is in the best position to cultivate the same;

d. Since after all, it cannot be said with certainty from whom the soil came, it may just as well be logically given to him who can best utilize the property.

A house near a river was enclosed by a high wall which protected the estate. Should alluvium immediately outside the wall belong to the owner of the house?

No, the alluvium here does not belong to the owner of the house or land because the reason why alluvium is allowed by law does not exist here. The presence of the wall hardly makes possible any loss from the waters that the estate may suffer. Hence, the alluvium cannot be given to the owner of the estate.

Is it required that the riparian owner to perform an act of possession to become the owner of the alluvial deposit?

If the riparian owner has title to the land, does that cover the alluvial deposit? Why?

No, because there is a specific technical description of the land. There must first be an independent application for registration of the land. (Grande vs. CA, June 30, 1962)

May the alluvial deposits be lost by prescription in favor of another?

Notes on

Reasons.

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Yes, because if it is not covered by a Torrens title. It can be lost by prescription after 30 years. (Maximo Jagualing, ibid.)

X bought the land of Y in installment basis payable in 5 years. Suppose there is an alluvial deposit, who owns the same? Why?

X, because he need not completely pay the land. Equitable and beneficial title is enough. (Director of Lands vs. Rizal, Dec. 29, 1950)

The northeast portion of the land of X is bounded by the Manila Bay. If there is an accretion formed, who owns the accretion? Why?

The accretion belongs to the State, because it is an accretion on a sea bank, Manila Bay being an inlet or an arm of the sea. (Heirs of Emiliano Navarro vs. IAC, G.R. No. 68166, Feb. 12, 1997)

How about if the land adjoins the Laguna De Bay? Who owns the accretion?

It belongs to the owner of the land adjoining it because Laguna De Bay is a lake, the accretion on which belongs to the owner of the land contiguous thereto. (Emiliano Navarro, ibid)

What is a bay?

It is an opening into the land where the water is shut in all sides except at the entrance; an inlet of the sea, distinct from a river, a bending or curbing of the shore of the sea or of lake. (Emiliano Navarro, ibid)

If a public service construction is made on a river bank, is the owner of the land be considered a riparian owner? Who will own the accretion?

If a public service construction, like a railroad or a road, is made on a river bank, it is evident that he owner of the land can no longer be considered a riparian owner. Therefore, it is the government or the railroad company which will own the accretion. Here, the strip of land used is no longer the property of the former riparian owner.

If instead of a public construction, there is only an easement for the benefit of navigation, floatage, fishing and salvage; will the riparian owner have a right over the accretion?

If instead of a public service construction, there is only an easement for the benefit of navigation, floatage, fishing and salvage, the right of the riparian owner to the accretion subsists, because in easements, the owner of the servient estate does not lose his ownership over the portion occupied. It is believed that this principle remains even if under the new civil Code, the last paragraph of Article 638 states “If it is necessary for such purpose to occupy land of private ownership, the proper indemnity shall first be paid.” Payment of the indemnity does not extinguish ownership over the land.

If a pond or a lagoon is dried up because of the natural decrease of the waters, does the owner of the estate adjoining the said pond or lagoon acquire the land left dry?

The owners of estates adjoining ponds or lagoons do not acquire the land left dry by the natural decrease of the waters, or lose that inundated by them in extraordinary floods (Article 458).

Notes on

Define avulsion

It is the process whereby the current of a river, creek, or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate.

Who owns a known portion of a parcel of land segregated from the land of another?

Whenever the current of a river, creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains the ownership of it, provided he removes the same within two years (Article 459).

Distinguish between alluvium and avulsion.

ALLUVIUM

AVULSIONThe deposit of the soil here is

gradual.Sudden or abrupt process may be seen.The soil cannot be identified. Identifiable or verifiable.

It belongs to owner of property to which it is attached.

It belongs to owner from whose property it was detached.

Supposed the detached portion is placed on top and not merely alongside or adjacent to another’s land, will Article 459 apply?

In avulsion, it is essential that the detached portion be known or identifiable. Therefore, mere placing on top will not make the article inapplicable as long as identification is still possible. But if because of some force, say, continuous rain, the two have so mixed with each other that identification cannot take place, the article should not apply. In this case, the principles of conmixtion or confusion should, it is believed, apply.

Suppose the detached portion is not attached to another’s land but simply is in the middle of the river, what rule applies?

Ownership still remains with the person from whom whose land it had been detached as in Article 463.

What is the rule on uprooted trees?

Trees uprooted and carried away by the current of the waters belong to the owner of the land upon which they may be cast, if the owners do not claim them within six months. If such owners claim them, they shall pay the expenses incurred in gathering them or putting them in a safe place (Article 460).

What if the trees have been transplanted, will Article 460 still apply?

Ownership still pertains to the person who lost the trees provided that the claim was made properly.

What is the effect if a claim has been made within the six month-period but the trees were not removed, can an action still be filed afterwards for the recovery of the trees?

Yes, provided the action is brought within the period set by law for prescription of movable property.

Notes on

Who owns an abandoned river bed?

River beds which are abandoned through the natural change in the course of the waters ipso facto belong to the owners whose lands are occupied by the new course in proportion to the area lost. However, the owners of the lands adjoining the old bed shall have the right to acquire the same by paying the value thereof, which value shall not exceed the value of the area occupied by the new bed (Article 461).

What requisites must concur in order that Article 461 (change or river bed) to apply?

1. The change must be sudden in order that the old river bed may be identified;

2. The changing of the course must be more or less permanent, and not temporary over-flooding of another’s land;

3. The change of the river bed must be a natural one, caused by natural forces and not by artificial means;

4. There must be a definite abandonment by the government. (The government must not take steps to bring the river to its old bed);

5. The river must continue to exist, that is, it must not completely dry up or disappear (as the river bed would belong to public dominion).

The estates of A and B face each other and adjoin a river. Later, the river bed was abandoned because of the natural change if its courses. A new river bed was formed in the land of C. Who owns the abandoned river bed?

C owns the entire abandoned river bed to compensate him for the loss of the land now occupied by the new river bed.

NOTE: “In proportion to the area lost” has no application if only one owner has lost; here, he gets the entire abandoned river bed. The “proportion” applies when there are two or more owners who have lost a portion of their lots; in this case, the entire abandoned bed will go to them proportionately, that is, in proportion to the area each has lost.

Under Article 461, a river bed abandoned through natural changes ipso facto belongs to the owners of lands through which the new river traverses. Suppose the change was man-made, is the rule applicable?

Yes, even if the change was man-made, the rule in Article 461 applies. In Baes vs. CA, G.R. No. 108065, July 6, 1993, if the riparian owner is entitled to compensation for the damage to or loss of his property due to natural causes, there is all the more reason to compensate him when the change in the course of the river is effected through artificial means.

Who owns new river bed which is formed by natural causes on a private estate?

Whenever a river, changing its course by natural causes, opens a new bed through a private estate, this bed shall become of public dominion (Article 462).

The estate of A adjoins a river. Subsequently, the current of the river divides itself into branches affecting A’ property. Who owns the isolated piece of land or the island in the middle of the divided river?

Notes on

Whenever the current of a river divides itself into branches, leaving a piece of land or part thereof isolated, the owner of the land retains his ownership. He also retains it if a portion of land is separated from the estate by the current (Article 463).

Who owns islands formed by unidentifiable accumulated deposits?

It depends.

1. If formed on the sea –

Within the territorial waters or maritime zone or jurisdiction of the Philippines– State (Article 464). This is patrimonial property.

Outside of our territorial jurisdiction – the first country to effectively occupy the same.

2. If formed on lakes, or navigable or floatable rivers – the State. This is also patrimonial property.

3. If formed on non-navigable or non-floatable rivers –

If nearer in margin to one bank, owner of nearer margin is sole owner (Article 465).

Non – navigable – opposite of the above.

What is the rule to follow if a new island is formed between the older island and the bank?

In this case, the owner of the older island is considered a riparian owner, and if the new island is nearer in margin to the older island, the owner of the older island should be considered also the owner of the new island.

SECTION 3. – THE RIGHT OF ACCESSION WITH RESPECT TO MOVABLE PROPERTY

What are the types of accession with respect to movable property?

1) Adjunction;2) Mixture (conmixtion or confusion); and3) Specification.

What is adjunction?

It is the process by virtue of which two movable things belonging to different owners are united in such a way that they form a single object.

What are the different kinds of adjunction?

1) Inclusion (Example: sapphire set on a ring);2) Soldering (Example: joining legs made of lead to a body also made of lead);3) Escritura (or writing);4) Pintura (or painting); and5) Weaving

What is the rule in case of adjunction?

Notes on

Whenever two movable things belonging to different owners are, without bad faith, united in such a way that they form a single object, the owner of the principal thing acquires the accessory, indemnifying the owner thereof for its value (Article 466).

When is a thing considered a principal and when is it considered an accessory? What are the tests?

1) The principal thing, as between two things incorporated, is deemed to be that to which the other has been united as an ornament, or for its use or perfection (Article 467).

2) If it cannot be determined by the foregoing rule which of the two things incorporated is the principal one, the thing of greater value shall be so considered (Article 468);

3) If both things have equal value, the principal is that of the greater volume (Article 468);

4) In painting and sculpture, writings, printed matter, engraving and lithographs, the board, metal, stone, canvas, paper or parchment shall be deemed the accessory thing (Article 468).

What is the rule when there can be separation of the things without injury?

Whenever the things united can be separated without injury, their respective owners may demand their separation (Article 469, par. 1).

What is the rule if the accessory is more precious than the principal?

In case the thing united for the use, embellishment or perfection of the other, is much more precious than the principal thing, the owner of the former may demand its separation, even though the thing to which it has been incorporated may suffer some injury (Article 469, par. 2).

What is the rule if the owner of the accessory is in bad faith?

Whenever the owner of the accessory thing has made the incorporation in bad faith, he shall lose the thing incorporated and shall have the obligation to indemnify the owner of the principal thing for the damage he may have suffered (Article 470, par. 1).

What is the rule the owner of the principal thing acted in bad faith?

If the one who has acted in bad faith is the owner of the principal thing, the owner of the accessory thing shall have the right to choose between the former paying him its value or that the thing belonging to him be separated, even though, for this purpose it be necessary to destroy the principal thing; and in both cases, furthermore, there shall be indemnity for damages (Article 470, par. 1).

What is the rule if both acted in bad faith?

If either one of the owners has made the incorporation with the knowledge and without the objection of the other, their respective rights shall be determined as though both acted in good faith (Article 470, par. 3).

What is the rule if the consent of the owner of the materials has not been obtained?

Notes on

Whenever the owner of the materials employed without his consent has a right to an indemnity, he may demand that this consist in the delivery of a thing equal in kind and value, and in all other respects, to that employed, or else in the price thereof, according to expert appraisal (Article 471). Sentimental value must also be considered (Article 475).

What is mixture?

It is the combination or union of materials where the respective identities of the component elements are lost.

What are the two kinds of mixture?

1) Conmixtion – solids are mixed;2) Confusion – liquids are mixed.

What are the rules in case of mixture?

1) If the mixture is caused by the owner in good faith, or by the will of both owners, or by chance (accident), or by a common agent, then co-ownership results, each owner acquiring an interest or right proportional to the value of his materials (Article 472);

2) If the mixture is made by one owner in bad faith, then he loses his material in favor of the other; and he is liable for damages (Article 473, par. 2);

3) If both are in bad faith, they are considered to have acted in good faith;4) If by the will of only one owner, but in good faith, each owner acquiring

an interest or right proportional to the value of his materials (Article 473, par. 1) [Same as Article 472]

5) If the mixture was caused by the negligence of one of the parties, the party negligent is liable for culpa aquiliana and should indemnify for damages (Article 2176). [Note that good faith does not necessarily exclude negligence (Article 456).

What is specification?

Specification is the giving of a new form to another’s material through the application of labor where labor becomes the principal. The material undergoes a transformation or change of identity.

What are the rules in specification (Article 474)?

a) If the worker (principal) is in good faith:

1) He appropriates the new thing;2) But he must indemnify for the materials

Exception: If the material (accessory) is more precious than the new thing or is more valuable, the owner of the material has an option:

1) To get the new thing but he pays for the work; or

2) To demand indemnity for the material.

b) If the worker is in bad faith, the owner of the material has an option:1) To appropriate the work without paying for the

labor; or2) To demand indemnity for the material plus

damages.

Notes on

Exception: The option of appropriation is not available if the value of the resultant work is more valuable for artistic or scientific reasons

Distinguish specification from mixture and adjunction.

Adjunction Mixture

SpecificationInvolves at least

two thingsInvolves at least

two thingsMay involve only one thing (may be more) but form is changed

As a rule,accessory follows

principal

As a rule, co-ownership results

As a rule,accessory follows

the principalThe things joined retain their nature

The things mixed or confused may either retain or lose their respective identities

The new object retains or preserves the nature of the original object

CHAPTER 3. – QUIETING OF TITLE

What are the requisites in order that an action may be brought to remove the cloud or to quiet the title to real property or any interest therein?

An action may be brought to remove the cloud or to quiet the title to real property or nay interest therein if the following requisites are present:

1) The plaintiff must have a legal or equitable title to, or interest in the real property which is the subject matter of the action (Article 477);

2) There must be a cloud on such title (Article 476);3) Such cloud must be due to some instrument, record, claim, encumbrance

or proceeding which is apparently valid or effective but in truth and in fact invalid, ineffective, voidable or unenforceable, and is prejudicial to the plaintiff’s title (Article 476);

4) When the contract, instrument or other obligation has been extinguished or has terminated, or has been barred by extinctive prescription (Article 478);

5) The plaintiff must return to the defendant all benefits he may have received from the latter, or reimburse him for expenses that may have redounded to his benefit (Article 479).

What are the kinds of action referred to in Article 476?

1. Remedial – an action to remove the cloud or to quiet title.2. Preventive – an action to prevent a future cloud or doubt – action que

timet.

What are the reasons for allowing the action to quiet title?

1) The prevention of eventual litigation;2) The protection of the true title and possession; and3) The promotion of right and justice.

What is the nature of the action to quiet title?

Notes on

The action is one ‘in personam’ and not ‘in rem’, therefore, the result is not binding upon the whole world. It is enforceable only against the defeated party, or privies. However, technically, the action is really quasi in rem, since it is an action in personam concerning real property.

May there be an action to quiet title in personal properties?

No, because the law says “real property or any interest therein.” But by analogy, the same principle should apply to personal property, particularly vessels, which although movable, partake of the nature of real property.

Does the action to quiet title prescribe?

It depends.

1) If the plaintiff is in possession of the property, the action does not prescribe.

2) If the plaintiff is not in possession of the property, the action may prescribe. (10 or 30 years) Moreover, even if the action is brought within the period of limitations, it may be barred by laches where there is no excuse offered for the failure to assert title sooner.

What are the differences in effects when the plaintiff is in or out of possession?

1. If plaintiff is in possession:

1) Period may not prescribe;2) Only right is to remove or prevent cloud.

2. If plaintiff is out of possession:

1) Period prescribes;2) Aside from being given the right to remove or prevent cloud, he may also

bring the ordinary actions of ejectment, publiciana or reinvidicatoria within the proper prescriptive period.

In case of conflict between the Civil Code and the principles of the general law on the subject, which should prevail?

The Civil Code should prevail.

CHAPTER 4 RUINOUS BUILDINGS AND TREES IN

DANGER OF FALLING

Notes on

What is the rule in case of building etc. in danger of falling?

1) The owner thereof is obliged to demolish it or execute the necessary work in order to prevent it from falling (Article 482, Par. 1);

2) If the proprietor does not comply with this obligation, the administrative authorities may order the demolition of the structures at the expense of the owner, or take measures to insure public safety (Article 482, par. 2);

3) If the construction or structures fall, the owner would be liable for damages (Art. 2190).

What is the rule with respect to large trees about to fall?

1) The owner of the tree is obliged to fell and remove it;2) If he should not do so, it shall be done at his expense by order of the

administrative authorities.

TITLE III. CO- OWNERSHIP

Define co-ownership.

It is that state where an undivided thing or right belongs to two or more persons.

What governs co-ownership?

a. Contractsb. Special legal provisionsc. Provisions of the Title on Co-ownership

What are the sources of co-ownership? (How does it arise?)

1) By law – like party walls, party ditches, etc.;2) By contract;3) By chance like commixtion, confusion, hidden treasure;4) By occupation or occupancy; and5) By succession or will.

Distinguish tenancy in common from joint tenancy.

TENANCY IN COMMON (CO-OWNERSHIP)

JOINT TENANCY

1. This involves a physical whole. But there is an ideal (abstract) division; each co-owner being the owner of his own ideal share.

1. This also involves a physical whole. But there is no ideal division; each and all of them own the whole thing.

2. Each co-owner may dispose of his ideal or undivided share (without boundaries) without the other’s consent.

2. Each co-owner may not dispose of his own share without the consent of all the rest, because he really has no ideal share.

3. If a co-owner dies, his share goes to his own heirs.

3. If a joint-tenant dies, his share goes by accretion to the other joint-tenants by virtue of their survivorship or jus accrecendi.

4. If a co-owner is a minor, this does not

4. If one joint-tenant is under a legal

Notes on

benefit the others for the purpose of prescription, and prescription therefore runs against them.disability (like minority), this benefits the other against whom prescription will not run.

What are the characteristics of co-ownership?

1. There must be more than one subject or owner;2. There is one physical whole divided into ideal (undivided) shares;3. Each ideal share is definite in amount, but not physically segregated

from the rest;4. Regarding the physical whole, each co-owners must respect each other

in the common use, enjoyment, or preservation of the physical whole;5. Regarding the ideal share, each co-owner holds almost absolute

control over the same;6. It is not a juridical person; and7. A co-owner is in a sense a trustee for the other co-owners.

Distinguish co-ownership from an ordinary partnership.

CO-OWNERSHP ORDINARY PARTNERSHIP1. No legal personality. 1. Has legal or juridical personality.2. Created by contract or by other things.

2. Created by contract only, express or implied.

3. Purpose is for collective enjoyment.

3. Purpose is profit.4. Agreement for it to exist is valid only for 10 years.

4. There is no term limit set by law.

5. As a rule, there is nomutual representation.

5. As a rule, there ismutual representation.

6. Not dissolved by death or incapacity of co-owner

6. Is dissolved by the death or incapacity of a partner.

7. Can dispose of his share without consent of others

7. Cannot substitute another as partner in his place without the consent of the others.

8. Profits must always dependon proportionate shares.

8. Profits may be stipulated upon.

Distinguish co-ownership from conjugal partnership.

CO-OWNERSHIP CONJUGAL PARTNERSHIP1. May arise by an ordinary contract.

1. Arises only because of the marriage contract.

2. Sex of the co-owners is immaterial.

2. One must be male, the other female.3. Co-owners may be 2 or more. 3. Conjugal owners are always two.

4. Profits are proportional interest.

to respective

4. Profits are generally 50-50 unless a contrary stipulation is in a marriage settlement.

5. Death of one does not dissolve the co- ownership.

5. Death of either husband or wife dissolves the conjugal partnership.

6. Generally all the co-owners administer.

6.

Generally,

the husband

is the

7. Co-ownership is discouraged. 7. Encouraged by law to provide for better family solidarity.

What are the requisites of co-ownership?

Notes on

a.) Plurality of subjects;b.) Unity of object (material division)c.) Recognition of the ideal or intellectual shares of the co-owners,

which determine their rights and obligation.

How do you determine the share of the co-owners in the benefits and charges arising from the co-ownership?

They shall be proportional to their respective interests and any stipulation in a contract to the contrary shall be void (Article 485).

Consequently, in order to determine the share of the co-owners in the benefits and charges, we must first determine the respective interest in the co-ownership. Under the law, such interests are presumed equal, unless the contrary is proved (Article 285, par 2).

What are the limitations upon the right of a co-owner to use the thing owned in common?

The thing must be used only

a) In accordance with the purpose for which it is intended;b) In such a way as not to injure the interest of the co-

ownership; andc) In such a way as not to prevent the other co-owners from

using it according to their rights (Article 486).

X, Y and Z are the co-owners of a house being rented by A. May X alone sue A for ejectment? Why?

Yes, because anyone of the co-owners may bring an action in ejectment. The reason for the rule is that an action instituted by one is really in behalf of all (Article 487).

What are the actions covered by the term ejectment?

1. Forcible entry2. Unlawful detainer3. Accion publiciana4. Accion reindivicatoria5. Quieting of title6. Replevin

A, B and C are co-owners of an agricultural land. A is the administrator of the property. He wants to convert it to a subdivision. What requirement is necessary before he can do so and before he can recover expenses?

In order that a can make alterations, there must be unanimous consent of all the co- owners, unless there is a judicial order obtained to the contrary. Unanimous consent may be given impliedly. But for the one making alterations to recover expenses, express consent must be given (Javier vs. Javier, 6 Phil. 493).

What is the right of a co-owner as to the expenses for preservation of the property owned in common?

Notes on

He has the right to compel the others to share in the expenses of preservation, even if incurred without prior notification to them, since the expenses are necessary (Article 488), but he notify if practicable (Article 489).

How may a co-owner exempt himself from this obligation?

By renouncing so much of his undivided share as may be equivalent to his share of the expenses and taxes. No waiver shall be made if it is prejudicial to the co-ownership (Article 488).

What does the renouncing require?

1) If the renouncing is in favor of the creditor, said creditor must give his consent;

2) If the renouncing is in favor of the other co-owners, a novation would result, necessitating the consent of said co-owners and the creditor.

What does the reimbursement cover?Only necessary expenses like those for the preservation of the property

and not for useful improvements, even if the value of the property is thereby increased, the purpose of the co-ownership not being for profit.

What are the rights of a co-owner regarding his ideal share?

1) Full ownership of his part and share of fruits or benefits;2) The right to alienate, assign or mortgage his share;3) The right to substitute another in his enjoyment, except when personal

rights are involved (Article 493);4) He right to exempt himself from necessary expenses or taxes by

renouncing part of his interest in the co-ownership. (Art. 488)

X and Y are the co-owners of a two-storey house. The lower portion is for rent, while the upper portion is for dwelling purposes. X uses one room upstairs. Can Y collect her ½ share of the rental from X?

No rent can be demanded for X because he is exercising his right of co-ownership. Y can use a part of the upper floor also. Under the law, each co-owner may use the thing owned in common provided that:

a) He does so in accordance with the purpose it is intended for;

b) He does not injure the intention of the co-ownership;c) He does not prevent other co-owners from using it

according to their rights (Article 486).

X is a co-owner of a real property with Y and Z. The said property was sold to A with a right to repurchase. Only X exercised the right to repurchase and obtained a title over the property. Did his act of repurchase terminate the co- ownership?

No, and it did not give him title to the entire land subject of co-ownership. The right of repurchase may be exercised by a co-owner with respect to his share. When he acquired the whole property, he merely acquired the right to be reimbursed for the amount equivalent to the shares of Y and Z. (Paulmitan vs. CA, GR No 61584, Nov. 25, 1992)

X, Y and Z are co-owners of a parcel of land. X was able to register the land under his name. What is the effect of the registration under his name?

Notes on

He does not acquire exclusive ownership over the property (Ceniza vs. CA, L-46345, Jan. 30, 1990). The registration merely created a trust in favor of his

co-owner (Article 1452).

X, Y and Z are co-owners of a real property, which was mortgaged to A. X, redeemed it during the period of redemption with his personal funds. Did X become the sole owners of the property, thereby terminating the co-ownership?

No, because the redemption did not vest X the sole ownership over the said property but inured to the benefit of all co-owners. Redemption is not a mode of terminating a co- ownership (Mariano vs. CA, GR No. 101522, May 28, 1993).

X, Y and Z are co-owners of a parcel of land. X sells his aliquot part of the property without the consent of the other. Is the sale valid?

Yes, it is valid because the right of alienation is one of his rights over the ideal share in the co-ownership.

If X sells the whole property without the consent of the others, is the sale

valid?

The sale is valid only insofar as his share is concerned. A person cannot sell that which he does not own.

How do you consider the possession by a co-owner of the property subject of co-ownership?

It is like that of a trustee and shall not be regarded as adverse to the co-owners, but In fact beneficial to all of them. Acts, which may be considered adverse to strangers, may not be adverse insofar as co-owners are concerned (Salvador vs. CA, GR No. 109910, April 5, 1995).

What are the rules in perpendicular co-ownership?

1. Proportionate contribution is required for the preservation of:

1. The main walls;2. The party walls;3. The roof;4. The other things used in common.

2. Each floor owner must bear the expenses of his floor;3. Stairs are to be maintained from story to story, by the users.

What are the acts of administration or management?

1. That do not involve an alteration;2. Those that may be renewed form time to time;3. Those which have transitory effects, that is, do not bind the co-ownership

for a long time in the future;4. Those, which even if called alteration, do not affect the substance or

nature of the thing; and5. Those for the common benefit of all the co-owners and not for only one or

some of them.

Notes on

What are the limitations on the right of the financial majority?

1. Although they can approve resolutions for administration and better enjoyment, still before a decision is made, there should first be a notice to the minority so that they can be heard;

2. The majority would be justified in proceeding only when the urgency of the case and the difficulty of meeting with them render impracticable the giving of such notice;

3. The minority may appeal to the court against the decision of the majority, when for example–

a) There is no real majority (Article 492);b) The resolution is seriously prejudicial to the rights of an individual

co-owner (Article 492);c) When the majority refuse to correct abuse of administration

or maladministration.

What is meant by acts of administration and acts of alteration? Distinguish one from the other.

Acts of administration are those which refer to the enjoyment, exploitation and alteration of the thing which do not affect its substance or form, while acts of alteration are those by virtue of which the co-owner, in opposition to the express or tacit agreement of all the co-owners, and in violation of their will, changes the thing from the state in which the others believe it should remain, or withdraws it from the use to which they believe it is intended.

Consequently, acts of administration are transitory in character, while acts of alteration are more permanent. The former do not affect the substance or form of the thing, while the latter relate to the right of the co-owner, the former require the consent or resolution of the majority of the co-owners, while the latter require the consent of all.

Distinguish between the right of a co-owner to make repairs for the preservation of the property owned in common, to perform acts of administration, and to perform acts of ownership or alteration.

1) With regard to acts of preservation: - Repairs for preservation may be made at the will of one of the co-owners, but he must, if practicable, first notify the other co- owners of the necessity for such repairs (Article 489);

2) With regard to acts of administration: - Acts of administration can be performed only with the concurrence of the majority of the co-owners (Article 492);

3) With regard to acts of alteration: - Acts of alteration can be performed only with the concurrence of the other owners. (Art. 491)

How do you determine the majority of the co-owners?

To constitute a majority, the co-owners who represent the controlling interest in the object of the community property must approve the resolution (Article 492, par. 2);

What is the effect if a co-owner desirers to make an improvement on the property, but he cannot secure the consent of the majority?

Should there be no majority, or should the resolution of the majority be seriously prejudicial to those interested in the property owned in common, the court, at the instance of an interested party, shall order such measures, as it

Notes on

may deem proper, including the appointment of the administrator (Article 492, 2nd paragraph).

Notes on

Who has the right of administration of the property owned in common?

The management of the property owned in common lies, in the first place, in the co- owners themselves. In this management, the majority of interests control, and their decisions are binding upon the minority. In such case, the powers and duties of such administrators shall be governed by the rules on agency. Should there be no majority, or should the resolution of the majority be seriously prejudicial to those interested in the property owned in common, the court, at the instance of the interested party, may order the appointment of an administrator.

Is the lease of the community property an act of administration or act of ownership or alteration?

Lease of personal property is a mere act of administration, and therefore, requires the resolution of the majority of the co-owners. However, lease of real property may be an act of administration or an act of alteration depending upon the circumstances of each particular case:

1) If the lease is recorded in the Registry of Property, whatever may be the duration thereof, it is an act of ownership, and therefore, requires the unanimous consent of all the co-owners, since under the law, a special of power of attorney is required (Article 1647);

2) If the lease thereof is more than one year, it is also act of ownership, and therefore, requires the unanimous consent of the co-owners, since again, under the law, a special power of attorney is required (Article 1878);

3) If the lease, however, is not recorded in the Registry of Property and the duration thereof is only one year or less, it is an act of administration and therefore, merely requires the resolution of the majority of the co-owners.

In Article 491, it requires unanimous consent for alterations. May the consent be given impliedly?

Yes, but only for the purpose of making the alteration legal. Thus of a co-owner knows that a house is being constructed on land owned in common but offers no objection thereto, he cannot demand the demolition of the building. But implied or tacit consent is not enough to make the other co-owners liable for the expenses for the construction of the house. To recover a share of the expenses, the express consent of the others would be needed.

A, B, and C are co-owners of an agricultural land. A is the administrator of the property. He wants to convert it to a subdivision. What requirement is necessary before he can do so and before he can recover expenses? Explain.

In order that A can make alterations, there must be unanimous consent of all the co- owners, unless there is a judicial order obtained to the contrary. Unanimous consent may be given impliedly. But for one making alterations to recover expenses, express consent must be given (Javier vs. Javier, 9 Phil. 493).

What is the number of co-owners who must consent?

1) Repairs, ejectment action – one (Article 489);2) Alteration or acts of ownership – all (Article 491);3) All others, like useful improvements, luxurious embellishments,

administration and better enjoyment – financial majority (not numerical) (Article 492 and 489).

Notes on

Can a co-owner go ahead with necessary repairs even against the opposition of all the rest?

Yes, because the negligence of the others should not prejudice him. He may advance the funds and recover for the others later. If he has no money, then he may contract with the repairmen and all the other co-owners will be liable proportionately to the creditors.

The law says a co-owner must if practicable first notify his co-owners for repairs for preservation. Suppose though it was practicable to do so, no notification was made, would the rest still be liable?

Yes, since the repairs were essential, in fact, even if the rest would object, the repairs can go on just the same. Though the others may insist for a lesser price.

What are the effects of illegal alteration?

1) The co-owner responsible may lose what he has spent;2) Demolition can be compelled;3) He would be liable for losses and damages;4) But whatever benefits the co-ownership derives will belong to it;5) In case a house is constructed on common land, all the co-owners will be

entitled to a proportionate share of the rent.

May prescription run against a co-owner?

As a rule, no, as long as the co-ownership is expressly or impliedly recognized.

The exception is when there is repudiation, provided that the following requisites are present:

1) He must make known to the other that he is repudiating the co-ownership and claiming complete ownership of the entire property;

2) Evidence of repudiation and knowledge of others is clear and convincing;3) There is open, continuous, adverse possession for a period of time required

by law;4) The period of prescription shall start to run only from such repudiation of

co- ownership.

When may a co-owner demand partition in so far as his share of the property owned in common is concerned?

Anytime because he is not obliged to remain in the co-ownership.

Does the right to demand partition prescribe?

No, as long as the co-ownership remains.

In a co-ownership, under what circumstances may a co-owner not demand partition?

1) When there is an agreement, but the period should not exceed 10 years;2) When the testator prohibits it, but the period shall be limited to 20 years;3) When it is prohibited by law (as in a conjugal partnership or absolute

community of property except in case of legal separation);4) When partition renders the object unserviceable;

Notes on

5) When the legal nature of the property does not allow the partition of the object, like a party wall (Articles 494 and 495).

A, B, and C agreed that there should be no partition till A gets married. At the end of 10 years, A has not married yet. Does the co-ownership remain?

No, it should be considered ended already, otherwise the law would be indirectly violated.

Supposed A got married at the end of 5 years, should the co-ownership already be considered ended?

Yes, since the resolutory condition has arrived.

What are the rights of creditors or assignees or with respect to the partition of property held in common?

1) They may take part in the division of the thing owned in common;2) Object to its being effected without their concurrence;3) But they cannot impugn any partition already executed, unless there has

been (1) fraud, or (2) in case it was made notwithstanding a formal opposition presented to prevent it. (Without prejudice to the right of the debtor or assignor to maintain its validity).What is the rule if the object is essentially indivisible?

1) Give the whole to one co-owner who will indemnify the rest;2) If this cannot be agreed, there must be a public sale and its proceeds

distributed among them.

What is the limitation of partition? (Protection of third person’s rights)

The partition of a thing owned in common shall not prejudice third persons, who shall retain the rights of mortgage, servitude, or any other real rights belonging to them before the partition was made. Their personal rights shall also remain in force.

Can a co-owner sell a particular portion of the co-ownership before partition?

No, he has no right to sell by metes and bounds of the property owned in common. A co-owner can only dispose of his undivided interest or share.

How may co-ownership be terminated?

1) Judicial partition;2) Extra-judicial partition;3) When by prescription, one co-owner has acquired the whole property by

adverse possession;4) When a stranger acquires by prescription the thing owned in common;5) Merger in one co-owner;6) Loss or destruction of the thing;7) By expropriation.

What are the effects of partition? (What must be done after partition?)

1) Mutual accounting for benefits received (Article 500);

Notes on

2) Mutual reimbursement for expenses (Article 500);3) Indemnity for damages in case of negligence or fraud (Article 500);4) Reciprocal warranty for (1) defects of title or eviction and (2) quality for

hidden defects (Article 501);5) Each former co-owner is deemed to have had exclusive possession of that

part allotted to him for the entire period during which the co-possession lasted (Article 543);

6) Partition confers upon each, the exclusive title over his respective share.

A and B were co-owners. They partitioned their land. Later, C was able to prove that he really owned the lot belonging to B. Should B alone bear the loss?

No, both A and B must bear the loss in that A must give half of his portion to B because there is a reciprocal or mutual warranty against eviction.

TITLE V. – POSSESSION

CHAPTER 1

POSSESION AND THE KINDS THEREOF

Define possession.

Possession is the holding of a thing or the enjoyment of a right (Article 523), either by material occupation or by the fact of subjecting the thing or right to the action of our will.

What are the viewpoints of possession?

a. Right to possession (jus possidendi) – This is a right or incident of ownership;

b. Right of possession (jus possessionis) – This is an independent right of itself, independent of ownership.

Distinguish between jus possessionis and jus possidendi.

Jus possessionis is the right of possession of a thing or right independent of the right of ownership, while jus possidendi is the right to the possession of a thing or right as a consequence of ownership.

What are the degrees of possession?

1) Mere holding or having, without any right whatsoever.2) Possession with a juridical title, but not that of an owner.3) Possession with a just title, but not from the true owner.4) Possession with a title of dominion, that is, with a just title from the owner.

What are the requisites or elements of possession?

1) There must be a holding or control of a thing or a right (corpus);2) There must be a deliberate intention to possess (animus possidendi);3) The possession must be by virtue of one’s own right.

What are the classes of possession?

Notes on

1) In one’s own name or that of another (Article 524);2) In the concept of an owner or in the concept of a holder (Article 525);3) In good faith (bona fide) or in bad faith (mala fide).

When does possession in another’s name arise?

1) Voluntary – as when an agent possesses for the principal.2) Necessary – as when a mother possesses for a child still in the maternal

womb.3) Unauthorized.

What is meant by possessor in good faith and possessor in bad faith?

He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it.

He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing.

Mistakes upon a doubtful or difficult question of law may be the basis of good faith (Article 526).

What requisites must concur in order that one may be classified as a possessor in good faith?

1) The possessor should have acquired the thing through some title or by some mode of acquisition recognized by law;

2) There must be a flaw or defect in such title or mode of acquisition;3) The possessor should not be aware of such flaw or defect.

What are the requisites for possession in bad faith?

1) The possessor should have acquired the thing through some title or by some mode of acquisition required by law;

2) There must be a flaw or defect in such title or mode of acquisition;3) The possessor should be aware of such flaw.

What is the effect on mistake on a doubtful or difficult question of law?

Mistake upon a doubtful or difficult question of law, provided that such ignorance is not gross and therefore inexcusable, may be the basis of good faith.

When does possession in good faith lose this character?

1) Possession in good faith loses this character from the moment facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully (Article 528);

2) If there are no facts, which the interruption of good faith may be determined, and an action is filed to recover possession, good faith ceases from the moment the possessor receives the judicial summons to appear at the trial (Article 528);

3) Even before judicial summons when a letter is received informing him of the ownership (Ortiz vs. Fuentebella, 27 Phil, 537; Wong vs. Carpio, G.R. No. 50264, October 21, 1991).

Notes on

What are the presumptions regarding possession under the Civil Code?

Notes on

1) Presumption of good faith – good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof (Article 527);

2) Continuity of character of possession – It is presumed that possession continues to be enjoyed in the same character in which it was acquired, until the contrary is proved (Article 529);

3) Non-interruption of possession – The possession of hereditary property is deemed transmitted to the heir without interruption, and from the moment of the death of the decedent, in case the inheritance is accepted. On who validly renounces an inheritance is deemed never to have possessed the same (Article 530);

4) Presumption of just title – A possessor in the concept of owner has in his favor the legal presumption that he possesses with just title, and he cannot be obliged to show or prove it (Article 541);

5) Non-interruption of possession of property unjustly lost but legally recovered. – One who recovers possession unjustly lost, shall be deemed for all purposes which may redound to his benefit, to have enjoyed it without interruption (Article 561);

6) Possession during intervening period – It is presumed, that the present possessor who was also the possessor at a previous time, has continued to be in possession during the intervening time, unless there is proof to the contrary (Article 1138 [2]);

7) Possession of movables with real property – The possession of real property presumes that of the movables therein, so long as it is not shown or proved that they should be excluded (Article 542);

8) Exclusive possession of common property – Each one of the participants of a thing possessed in common shall be deemed to have exclusively possessed the part which may be allotted to him upon the division thereof, for the entire period during which the co-possession lasted (Article 543).

What may be possessed?

Only those things and rights, which are susceptible of being appropriated, may be the object of possession (Article 530).

What properties may not be appropriated?

1) Property of public dominion;2) Res communes;3) Easements;4) Things specifically prohibited by law.

What is res nullius? Can they be possessed?

They are abandoned or ownerless properties. They may be possessed, but cannot be acquired by prescription because prescription presupposes prior ownership in another. However, they may be acquired by occupation.

CHAPTER 2. - ACQUISITION OF POSSESSION

How is possession acquired?

a. The material occupation of a thing or the exercise of a right (Article 531) [quasi-possession].

This also includes:

Notes on

a) constitutom possessorium – when a person who possessed property as an owner, now possesses it in some other capacity, as that of lessee or depositary; and

b) tradition brevi manu – this exists when a person who possessed property not as an owner (like a lessee), now possess it as an owner.

b. By the fact that it is subject to the action of our will (Article 531).

This includes:

a) tradition longa manu – by mere agreement; andb) traditio simbolica – by the delivery of keys.

c. By constructive possession or proper acts and legal formalities established for acquiring such right (Article 531), such as succession, donation, execution of public instruments; or thru the possession by a sheriff by virtue of a court order.

What are the essential requirements for possession?

1) The corpus, or the thing physically detained;2) The animus or the intent to possess, whether evidenced expressly or impliedly.

How is possession acquired from the viewpoint of who possess?

1) Personal;2) Thru an authorized person, or agent or legal representative;3) Thru an unauthorized person, but only if subsequently ratified (Article 532).

What are the essential requisites of the following?

1) For personal acquisition:

1. Intent to possess2. Capacity to possess3. Object must be capable of being possessed

2) Thru an authorized person:

1. Intent to possess for principal (not for agent)2. Authority or capacity to possess (for another)

3. Principal has intent and capacity to possess.

3) Thru an unauthorized person (as in negotiorum gestio):

1. Intent to possess for another (the “principal”)2. Capacity of “principal” to possess3. Ratification by “principal” (It has retroactive effect)

What is negotiorium gestio?

Article 2144. Whoever voluntarily takes charge of the agency or management of the business or property of another without any power from the latter, is obliged to continue the

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same until the termination of the affair and its incidents, or to require the person concerned to substitute him, if the owner is in a position to do so.

What are the instances where the juridical relation does not arise in

negotiorum gestio?

1. When the property or business is not neglected or abandoned;2. If in fact the manager has been tacitly authorized by the owner;

X is the heir of Y who died on December 10, 1992. He accepted his inheritance from his father on June 21, 1993. From what time should his possession be reckoned with?

It should be computed from the moment of the death of Y, because the possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of death of the decedent, in case the inheritance is accepted (Article 533).

Suppose X repudiates the inheritance, is he presumed to have been in possession of the property?

No, because one who validly renounces an inheritance is deemed never to have possessed the same (Article 533, last sentence).

X has been in possession of a property in bad faith. After his death, y, his daughter continued possessing the property. Will the bad faith of X be suffered by Y?

No, as a rule, because one who succeeds by hereditary title does not suffer the consequences of the wrongful possession of the decedent, if shown that he is in good faith, but the effects of possession in good faith shall not benefit him except from the date of death of the decedent (Article 534). In Escritor vs. IAC, November 12, 1987, it was held that the reason for Article 534 is that bad faith is not transmissible to the heirs unless they know the flaw in one’s title.

How may minors and incapacitated persons acquire the possession of things?

Minors and incapacitated persons may acquire the possession of things; but they need the assistance of their legal representatives in order to exercise the rights from which the possession arise in their favor (Article 535).

A has been in possession in good faith of a parcel of land for a period of 4 years. Upon death, B, his son, continued possessing the land. How many years more should B possess the land in order that he may be the owner?

Six (6) years. Under the law, possession of hereditary property is deemed transmitted to the heir without interruption and upon the moment of death of the decedent if inheritance is accepted. In the case, it was accepted since he continued possessing the land. This is so because B’s possession is tacked to the possession of his father, A. In the computation of the time necessary for prescription, the present possessor may complete the period for prescription by tacking his possession to that of his grantor or predecessor-in-interest.

What is the principle of tacking of possession?

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It is the principle where in computing the time necessary for prescription, the present possessor may complete the period necessary for prescription by adding his possession to that of his grantor or predecessor in interest (Article 1138, par. 1)

May possession acquired through force, violence or tolerance ripen into ownership?

No. Article 536 provides that in no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing, must invoke the aid of the competent court, if the holder should refuse to deliver the thing.

Likewise, Article 537 provides that acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession.

What are the remedies which are available to a possessor in order to protect his possession?

1. With regard to immovable property:

1) Action for forcible entry and unlawful detainer – action to recover material possession of the property, and which must be instituted with one year from the time the cause of action accrues in the MTC.

2) Accion publiciana – the plenary action to recover the possession of the property, and which must be instituted with 10 years after the possession has been lost in the proper RTC

3) Accion reinvidicatoria – An action to recover possession of the property based on ownership, and must be instituted with 10 or 30 years, as the case may be, after the owner has been deprived of his property in the proper RTC.

2. With regard to movable property:

Action for replevin which is an action for the manual delivery of personal property.

What is the general rule regarding possession as a fact (Article 538)?

Possession as a fact cannot be recognized at the same time in two different personalities.

Exception:

a) co-possessors;b) Possession in different concepts or different degrees.

What are the rules in case of conflict of possession?

Possession as a fact cannot be recognized at the same time in two different personalities except in the case of co-possession. Should a question arise regarding the fact of possession:

1. Present possessor is preferred;2. If both are in possession, the one longer in possession shall be preferred;

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3. If possession started at the same time, the one with a title is preferred;

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4. If both have a title, the court will determine (Article 538).

CHAPTER 3. – EFFECTS OF POSSESSION

What are the three general rights of a possessor?

a. The right to be respected in his possession;b. The protection in said right or restoration to said possession thru legal means;c. The writ of preliminary mandatory injunction.

When may possession serve as a title for acquiring dominion over the

thing?

Only possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion (Article 540).

Outline of the effects of possession in good faith and bad faith:

A. FRUITS RECEIVED:

1. Possessor in good faith is entitled to fruits received while his possession is still in good faith (Article 544); 7

2. Possessor in bad faith shall reimburse the fruits received or which the legitimate possessor could have received, subject to Article 443. (Article 549).

B. PENDING FRUITS:

1. Possessor in good faith and legitimate possessor shall be liable for expenses of cultivation and shall share in net harvest in proportion to the time of their possession (Article 545, par. 1); 8

2. Possessor in bad faith shall have not any right.

C. CHARGES:

Possessor, whether in good faith or bad faith, and legitimate possessor shall share charges in proportion to the time of their possession (Article 545, par. 1).

7 Article 544. A possessor in good faith is entitled to the fruits received before the possession is legally interrupted.

Natural and industrial fruits are considered received from the time they are gathered or severed.

Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion.

8 Article 545. If at the time the good faith ceases, there should be any natural or industrial fruits, the possessor shall have a right to a part of the expenses of cultivation and to a part of the net harvest, both in proportion to the time of the possession.

The charges shall be divided on the same basis by the two possessors.The owner of the thing may, should he so desire, give the possessor in

good faith the right to finish the cultivation and gathering of the growing fruits, as an indemnity for his part of the expenses of cultivation and the net proceeds; the possessor in good faith who for any reason whatsoever should effuse to accept this concession, shall lose the right to be indemnified in any other manner.

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D. EXPENSES:

1. Necessary expenses -

a. Rights of a possessor in good faith (Article 546, par. 1): 9

(a) Right of reimbursement;(b) Right of retention.

b. Right of possessor in bad faith: Right of reimbursed only.

2. Useful expenses -

a. Rights of possessor in good faith:

(1) Right of reimbursement;(2) Right of retention (Article 546, par. 2);(3) Limited right of removal (Article 547). 10

b. Right of possessor in bad faith: None.3. Ornamental expenses -

a. Right of possessor in good faith: Limited right of removal (Article 548); 11

b. Right of possessor in bad faith: Limited right of removal (Article 549);12

E. DETERIORATION OR LOSS:

1. Possessor in good faith – No liability, unless due to his fault or negligence after he had become a possessor in bad faith (Article 552);

2. Possessor in bad faith – Always liable, whether due to his fault or negligence or due to fortuitous event (Article 552);

9 Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor.

Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof.

10 Article 547. If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them, unless the person who recovers the possession exercises the option under paragraph 2 of the preceding article.

11 Article 548. Expenses for purer luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expended.

12 Article 549. The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have receive, and shall have a right only to the expenses mentioned in paragraph 1 of Article 546 and in Article 443. The expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded to the possessor in bad faith; but he may remove the objects for which such expenses have been incurred, provided that the thing suffers no injury thereby, and that the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession

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If the possessor is ousted from his possession by the true owner of the property, what are the rights of the two parties with respect to the fruits received or harvested by the possessor?

The rights of the two parties shall depend upon the character of the possession of the possessor.

1. If the possessor was in good faith, he is entitled to all of the fruits received before his possession was illegally interrupted. Natural and industrial fruits are considered received from the time they are gathered or severed, while civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion (Article 544). The true owner of the property on the other hand, shall be entitled to the fruits received by the possessor after the latter’s possession was illegally interrupted by the service of judicial summons.

2. If the possessor was in bad faith, he shall reimburse not only the fruits which he had received, but also those which the true owner could have received with the exercise of due diligence (Article 549, 1st sentence), after deducting expenses which he might have incurred in their production, gathering and harvesting (Articles 549, 443).

In the problem above, what are the rights of the two parties with respect to pending natural and industrial fruits?

The rights of the two parties shall depend upon the character of the possession of the possessor.

1. If the possessor was in good faith, then both parties shall share in the expenses of cultivation as well as in the net harvest in proportion to the time of their respective possession. The owner, should he so desire, may give the possessor in good faith the right to finish the cultivation and gathering of the growing fruits as an indemnity for his part of the expenses of cultivation and the net harvest. If the possessor in good faith for any reason whatsoever should refuse to accept this concession, he shall lose his right to be indemnified in any other manner (Article 545).

2. If the possessor was in bad faith, the true owner shall be entitled to all the pending fruits in accordance with the principle of accession (Article 449), as well as damages (Article 451).

Under the problems above, what are the rights of the two parties with respect to taxes on the property and other charges?

Taxes and other charges shall be divided between the possessor and the owner in proportion to the time of their respective possession, irrespective of the good faith or bad faith of the former (Article 455, par. 2)

Who shall bear the cost of litigation over the property?

The costs of litigation over the property shall be borne by every possessor (Article

550).

To whom shall improvements caused by nature or time inure?

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

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Who shall be liable for loss or deterioration of the thing possessed?

A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except in cases in which it is proved that he has acted with fraudulent intent or negligence, after the judicial summons.

A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by a fortuitous event (Article 552).

What is the rule as to improvements which have ceased to exist?One who recovers possession shall not be obliged to pay for

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

What is meant by (1) necessary expenses, (2) useful expenses, and (3) ornamental expenses or expenses for pure luxury?

1. Necessary expenses are those which are for the preservation of the thing.

2. Useful expenses are those which are incurred for the greater productivity or utility of the thing.

3. Expenses for pure luxury are those which are incurred for the convenience and enjoyment of the possessor, but which do not affect the existence, productivity or utility of the thing itself.

Under the problems above, what are the rights of the two parties with respect to (1) necessary expenses? (2) useful expenses? (3) expenses for luxury?

The rights of the two parties with respect to such expenses shall depend upon the character of the possession of the possessor.

a) Necessary expenses –

(1) If the possessor was in good faith, he shall have the right to demand from the owner reimbursement of all necessary expenses. In addition, he shall also have the right to retain the thing until he has been reimbursed therfore (Article 546, par. 1).

(2) If the possessor was in bad faith, he shall have only the right to demand from the owner reimbursement of all necessary expenses without any right of retention (Article 546, par.1)

b) Useful expenses –

(1) If the possessor was in good faith, the owner or legitimate possessor shall have the option of reimbursing to such possessor the amount of all useful expenses or of paying the increase in value which the thing may have acquired by reason thereof. If the owner chooses the first option, the possessor may retain the thing until he has been reimbursed therefore (Article 546, par. 2). If the owner does not avail himself of either option, the initiative passes to the possessor, in which case such possessor shall have the option of demanding from the owner reimbursement of all useful expenses with the accessory right of retention (Article 546, par.2) or of removing the useful improvements, provided that such removal can be made without damage to the principal thing (Article 547).

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(2) If the possessor was in bad faith, he shall not have any right whatsoever. Consequently, the owner shall be entitled to all of the useful improvements without obligation on his part.

c) Expenses for pure luxury –

As far as ornamental expenses or expenses for pure luxury are concerned, the possessor is entitled to only right – a limited right to remove the ornaments with which he has embellished the principal thing.

(1) If such possessor was in good faith, he may remove the ornaments, provided that the principal thing suffers no injury thereby, and that the owner or legitimate possessor does not prefer to retain such ornaments by reimbursing to the possessor the amount expended (Article 548).

(2) If the possessor was in bad faith, he may remove the ornaments, provided that the principal thing suffers no injury thereby, and that the owner does not prefer to retain such ornaments by reimbursing to the possessor the value they may have at the time he enters into possession (Article 549)

When is possession of movables and immovables deemed lost or not lost?

The possession of movable is not deemed lost so long as they remain under the control of the possessor, even though for the time being he may not know their whereabouts (Article 556).

The possession of immovables and of real rights is not deemed lost, or transferred for purposes of prescription to the prejudice of third persons, except in accordance with the provisions of the Mortgage Law and the Land Registration Laws (Article 557).

Can the true owner recover a movable thing from a possessor who is in possession of such thing in a concept of an owner?

It depends:

1. If the possessor acquired the thing in bad faith, the true owner can recover without any obligation whatsoever.

2. If he acquired it in good faith, the true owner cannot recover it because possession of a movable acquired in good faith is equivalent to a title (Article 559, par. 1). This is nevertheless subject to the following exceptions:

a. If the true owner has lost the movableb. If such owner has been unlawfully deprived thereof.

In such cases, the true owner can recover the movable from anyone without any obligations whatsoever, except:

The possessor has acquired the movable in good faith at a public sale, in which case the owner cannot recover it without reimbursing the price paid therefor (Article 559, par. 1).

What are the different instances where the owner of a movable who has lost it or who has been unduly deprived thereof can no longer recover it from the possessor?

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1. If recovery is no longer possible because of prescription (Article 1132);2. If the possessor had acquired the thing from a person whose authority

to sell the owner is by his conduct precluded from denying (Article 1505, par. 1);

3. If the possessor had acquired the thing from a merchant’s store or in fairs or markets, in accordance with the Code of Commerce and special laws. (Article 1505, No. 3);

4. If the thing is a negotiable instrument or a negotiable document of title and the possessor is a purchaser in good faith and for value. (Section 57, Act No. 2031, Article 1518);

5. If the possessor is now the owner of the thing in accordance with the principle of finder keepers recognized in Article 719.

What are the rules as to recovery or non-recovery?

a. Owner may recover without reimbursement:

1. From possessor in bad faith;2. From possessor in good faith if owner had lost the property or has been

unlawfully deprived of it.

b. Owner may recover but should reimburse:

1. If possessor acquired the object in good faith at a public sale or auction.

c. Owner cannot recover, even if he offers to reimburse (whether or not the owner had lost or been unlawfully deprived):

1. If possessor had acquired it in good faith by purchase from a merchant’s store, or in fairs, or markets;

2. If owner is by his conduct precluded from denying the seller’s authority to sell (estoppel);

3. If possessor had obtained the goods because he was an innocent purchaser for value and holder of a negotiable document of title to the goods.

X owns a diamond ring which was stolen by her maid who sold it to Y, a friend of X. X saw the ring in Y’s possession. Can he recover it?

Yes, under the law, one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same (Article 559).

Within what period should X file the action to recover it?

Eight (8) years. Under Article 1140, actions to recover movables shall prescribe eight years from the time the possession thereof was lost.

Suppose Y acquired it from a public sale or a merchant’s store, can X recover it?

Yes, provided that he complies with the requisite that he should reimburse the price paid by the possessor. Under the law, if the possessor of a movable lost or of which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor (Article 559).

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The same is true if the object was acquired from a merchant’s store or in fairs or markets (Article 1505 [3]).

What is meant by the phrase “unlawfully deprived” under Article 559 of the Civil Code?

The term or phrase “unlawfully deprived” extends to all cases where there has been no valid transmission of ownership, including a depositary or a lessee who has sold the same (Ledesma vs. Ca, G.R. No. 86051, September 1, 1992).

If a person issues a check in payment of an obligation and the check bounces, is the other party considered unlawfully deprived such that he can recover the object he delivered?

He is not considered unlawfully deprived within the meaning of the law. In Ledesma vs. CA, G.R. No. 86051, September 1, 1992, it was held that there was a perfected unconditional contract of sale between the seller and the buyer. The former voluntarily caused the transfer. Title thereto was acquired. The subsequent dishonor of the check merely amounted to a failure of consideration which does not render the contract of sale void, but merely allows the prejudiced party to sue for specific performance or rescission of the contract and to prosecute the impostor for estafa under Article 315 of the Revised Penal Code.

What are the rules as to possession of animals (Article 560)?

1. Possession of wild animals is lost when they are under another’s control or under no one’s control;

2. Possession of domesticated or tamed animals:

a. The possessor does no lose possession of them, as long as habitually they return to the possessor’s premises.

b. Possession of them is lost if the aforementioned habit has ceased. But insofar as ownership is concerned, Article 716 provides that the owner thereof may claim them within 20 days to be counted from their occupation by another person.

What are the presumptions in favor of the possessor under the chapter?

1. Article 541 – Possessor has just title2. Article 542 – Possession of movables found in an immovable3. Article 543 – Exclusive possession by a previous co-owner4. Article 554 – Possession during the intervening period5. Article 561 – Lawful recovery of possession that has been unjustly lost

When may possession be lost?

1. By the abandonment of the thing;2. By an assignment made to another either by onerous or gratuitous title;3. By the destruction or total loss of the thing, or because it goes out of

commerce;4. By the possession of another, subject to the provisions of Article 537, if

the new possession has lasted longer than one year. But the real right of possession is not lost till after the lapse of ten years.

What is the prescription period of movables?

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1. Action to recover fact of possession – 1 year (Article 555)2. Action to recover movables – 8 years (Article 1140)3. Ownership of movables – 4 years if in good faith, 8 years if in bad faith

(Article 1132)4. Movable possessed through crime – none (can never prescribe (Article

1133)

TITLE VI. – USUFRUCT

CHAPTER 1 USUFRUCT IN

GENERAL

What is usufruct?

Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides (Article 562).

The combination of jus utendi and fruendi is called usufruct.

What are the characteristics or elements of usufruct?

1) Essential characteristics:

a. It is a real right, whether registered in the Registry of Property or not;

b. It is of a temporary nature or duration;c. Its purpose is to enjoy the benefits and derive all advantages from

the object as a consequence of normal use or exploitation.

2) Natural characteristic:The obligation to preserve its form and substance.

What may be the objects of usufruct?

a. It may be real or personal property;b. It may be sterile or productive;c. It may be created over a right.

What are the rights of action available to a usufructuary?

a) The action to protect the usufruct itself;b) The action to protect the exercise of the usufruct.

How may a usufruct be constituted?

Usufruct is constituted:

a) By law (legal);b) By the will of private persons expressed in acts inter vivos or in a last

will and testament (voluntary); andc) By prescription (mixed).

Why is registration of usufruct over real property

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necessary?

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A usufruct over real property, being a real right, must be duly registered in order to bind innocent third parties (Article 709).

How is usufruct classified (Article 564)?

a) According to quantity or extent of fruits or object:

(1) As to fruits – total or partial;(2) As to objects – universal, if over the entire patrimony (Article 598);

or singular, if only individual things are included.

b) As to the number of persons enjoying the right:

(1) Simple – if only one usufructuary enjoys;(2) Multiple – if several usufructuaries enjoy:

a. Simultaneous;b. Successive.

c) As to the quality or kind of objects involved:

(1) Usufruct over rights;(2) Usufruct over things:

a. Normal usufruct – this involves non-consumable things where the form and substance are preserved;

b. Abnormal usufruct – this involves consumable property (also called quasi- usufruct).

d) According to terms or conditions:

(1) Pure usufruct – no term or condition;(2) With a term or period:

a. Ex die – from a certain day;b. In diem – up to a certain day; andc. Ex die in diem – from a certain day up to a certain day

(3) With a condition

What are the conditions required if the usufruct is created by donation or by testamentary succession?

(1) If the usufruct is created by donation, all the donees must be alive, or at least already conceived, at the time of the perfection of the donation (Article 756);

(2) In the case of testamentary succession, there must only be two successive usufructuaries; and both must be alive or at least conceived at the time of the testator’s death (Articles 863 and 869).

What are the rules governing a usufruct?

1. First, the agreement of the parties or the title giving the usufruct;2. Second, in case of deficiency, apply the Civil Code (Article 565);

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3. In case of conflict between the rights granted a usufructuary by virtue of a will, and codal provisions, the former, unless repugnant to the mandatory provisions of the Civil Code, should prevail.

CHAPTER 2 RIGHTS OF THE USUFRUCTUARY

Who shall be entitled to all the fruits of the property in usufruct?

a) The usufructuary shall be entitled to all the fruits, natural, industrial and civil fruits of the property in usufruct;

b) With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger (Article 576)

What are the rules with regard to pending natural or industrial fruits?

a) Natural or industrial fruits growing at the time the usufruct begins, belong to the usufructuary;

b) Those growing at the time the usufruct terminates, belong to the owner (Article 567, pars. 1 & 2)

c) In both cases, the usufructuary, at the beginning of the usufruct, has no obligation to refund to the owner any expenses incurred; but the owner shall be obliged to reimburse at the termination of the usufruct, from the proceeds of the growing fruits, the ordinary expenses of cultivation, for seed, and other similar expenses incurred by the usufructuary (Article 567, par. 3);

d) These provisions shall not prejudice the rights of third persons, acquired either at the beginning or at the termination of the usufruct (Article 567, par. 4);

e) There can be no pending civil fruits or rents for they accrue daily (Article 569).

What is the rule if the usufructuary has leased the lands or tenements given in usufruct?

If the usufructuary has leased the lands or tenements given in usufruct, and the usufruct should expire before the termination of the lease, his or her heirs and successors shall receive only the proportionate share of the rents that must be paid by the lessees (Article 568); [meaning the remaining period of the lease not anymore covered by the usufruct belongs to the naked owner].

What are the rules with regard to civil fruits?

1. Civil fruits are deemed to accrue daily;2. Civil fruits belong to the usufructuary in proportion to the time the

usufruct may last (Article 569);3. Whenever the usufruct is constituted on the right to receive rent or

periodical pension, whether in money or in fruits, or in the interest on bonds or securities payable to bearer, each payment due shall be considered as the proceeds of fruits of such right (Article 570, par. 1); and they shall be distributed as civil fruits, and shall be applied in proportion to the time the usufruct may last; (Articles 570, par. 3 and 569);

4. Whenever usufruct consists in the enjoyment of benefits accruing from a participation in any industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character (Article 570, par. 2); and they shall be distributed as civil

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fruits, and shall be

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applied in proportion to the time the usufruct may last; (Articles 570, par. 3 and 569);

Who is entitled to the enjoyment of the increases in the thing held in usufruct?

The usufructuary shall have the right to enjoy any increase which the thing in usufruct may acquire through:

i. Accession;ii. Servitudes established in its favor; andiii. All the benefits inherent in the property (Article 571).

What are the rights of the usufructuary to the thing held in usufruct and to the usufructuary right (Article 572)?

i. He may personally enjoy the thing;ii. He may lease the thing to another;iii. He may alienate his right of usufruct, even by a gratuitous title; Provided:

All the contracts he may enter into as such usufructuary shall terminate upon the expiration of the usufruct;

Except:

Leases of rural lands, which shall be considered as subsisting during the agricultural

year.

What usufructuary rights that cannot be alienated?

i. Those that are purely personal usufructs;ii. Those which are subject to caucion juratoria under Article 587;iii. Legal usufructs such as the usufruct which parents have over the property of

their unemancipated children, because of their nature.

What is abnormal usufruct?

It is the usufruct over things which without being consumed, gradually deteriorate through wear and tear (Article 573), or those which cannot be used without being consumed (Article 574). The usufructuary does not have the obligation of preserving the form and substance of the property which is the object of the usufruct.

A delivered to B a brand new Toyota Corolla for the latter’s use for a period of five months. Is B liable of the car’s ordinary wear and tear?

No, because whenever the usufruct includes things which, without being consumed, generally deteriorate through wear and tear:

(1) The usufructuary shall have the right to make use of the thing in accordance with the purpose for which they are intended;

(2) He shall not be obliged to return them at the termination of the usufruct except in their condition at that time;

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(3) But he shall be obliged to indemnify the owner for any deterioration they may have suffered by reason of his fraud or negligence (Article 573).

X gave Y the usufruct of 100 cavans of rice for the use of his family. State the obligation of Y upon the termination of the usufruct.

Whenever the usufruct includes things which cannot be used without being consumed:

(1) The usufructuary shall have the right to make use of them under the obligation of paying their appraised value at the termination of the usufruct, if they were appraised when delivered;

(2) In case they were not appraised, he shall have the right to return the same quantity and quality, or pay their current price at the time the usufruct ceases (Article 574).

May money be the object of a usufruct?

Yes, Article 574 applies.

What are the kinds of special usufructs?

iv. Of fruit bearing trees and shrubs (Artucle 575); 13

v. Of periodic pension, income, dividends (Article 570); 14

vi. Of woodland (Article 577); 15

vii. Of right of action to recover real property, real right or movable property (Article 578); 16

13 Article 575. The usufructuary of fruit – bearing trees and shrubs may make use of the dead trunks, and even of those cut off or uprooted by accident, under the obligation to replace them with new plants.

14 Article 570. Whenever a usufruct is constituted on the right to receive a rent or periodic pension, whether in money or in fruits, or in the interest on bonds or securities payable to bearer, each payment due shall be considered as the proceeds or fruits of such right.

Whenever it consists in the enjoyment of benefits accruing from a participation in any industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character.

In either case they shall be distributed as civil fruits, and shall be applied in the manner prescribed in the preceding article.

15 Article 577. The usufructuary of woodland may enjoy all the benefits it may produce according to its nature.

If the woodland is a copse or consists of timber for building, the usufructuary may do such ordinary cutting or felling as the owner was in the habit of doing. And in default of this, he may do so in accordance with the customs of the place, as to the manner, amount and season.

In any case the felling or cutting of trees shall be made in such manner as not to prejudice the preservation of the land.

In nurseries, the usufructuary may make the necessary thinnings in order that the remaining trees may properly grow.

With the exception of the provisions of the preceding paragraphs, the usufructuary cannot cut down trees unless it be to restore or improve some of the things in usufruct, and in such case he shall first inform the owner of the necessity for the work.

16 Article 578. The usufructuary of an action to recover real property or real a real right, or movable property, has the right to bring the action and to oblige the owner thereof

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viii. Of part of property owned in common (Article 582); 17

ix. Of the entire patrimony of a person (Article 598); 18

x. On mortgaged immovable (Article 600); 19

xi. On a flock or herd of livestock (Article 591). 20

What are the rights of a usufructuary of fruit bearing trees and shrubs?

a. The usufructuary can make use of the dead trunks, and even those cut off or uprooted by accident;

b. But he has the obligation to replace them with new plants (Article 575);

c. If in consequence of a calamity or extraordinary event, the trees or shrubs shall have disappeared in such considerable number that it would not be possible to replace them, the usufructuary may leave the dead, fallen or uprooted trunks at the disposal of the owner, and demand that the latter remove them and clear the land (Article 576).

If the usufructuary incurs necessary, useful and ornamental expenses, what are his rights?

(1) The usufructuary shall have the right to demand reimbursement from the owner of all necessary expenses which he might have incurred for the preservation of the property (Article 546);

(2) This right, however, is not available to him with regard to useful and ornamental expenses, but he may remove the improvements provided that it is possible to do so without damage to the property (Article 579);

(3) In addition, he may set off such improvements against any damage to the same (Article 580).

to give him the authority for this purpose and to furnish him whatever proof he may have. If in consequence of the enforcement of the action he acquires the thing claimed, the usufruct shall be limited to the fruits, the dominion remaining with the owner.

17 Article 582. The usufructuary of a part of a thing held in common shall exercise all the rights pertaining to the owner thereof with respect to the administration and the collection of fruits or interest. Should the co-ownership cease by reason of the division of the thing held in common, the usufructuary of the part allotted to the co-owner shall belong to the usufructuary.

18 Article 598. If the usufruct be constituted on the whole patrimony, and if at the same time of its constitution the owner has debts, the provisions of Article 758 and 759 relating to donations shall be applied, both with respect to the maintenance of the usufruct and to the obligation of the usufructuary to pay such debts.

19 Article 600. The usufructuary of a mortgaged immovable shall be obliged to pay the debt for the security of which the mortgage was constituted.

Should the immovable be attached or sold judicially for the payment of the debt, the owner shall be liable to the usufructuary for whatever the latter may lose by reason thereof.

20 Article 591. If the usufruct be constituted on a flock or herd of livestock, the usufructuary shall be obliged to replace with the young thereof the animals that die each year from natural causes, or are lost due to the rapacity of beasts of prey.

If the animals on which the usufruct is constituted should all perish, without the fault of the usufructuary, on account of some contagious disease or any other uncommon event, the usufructuary shall fulfill his obligation by delivering to the owner the remains which may have been saved from the misfortune.

Should the herd or flock perish in part, also by accident and without the

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fault of the usufructuary, the usufruct shall continue on the part saved.Should the usufruct be on sterile animals, it shall be considered, with

respect to its effect, as though constituted on fungible things.

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CHAPTER 3. OBLIGATIONS OF THE USUFRUCTUARY

What are the obligations of the usufructuary before entering upon the enjoyment of the property?

(1) To make, after notice to the owner or his legitimate representative, an inventory of all the property, which shall contain an appraisal of the movables and a description of the condition of the immovables;

(2) To give security, binding himself to fulfill the obligations imposed upon him (Article 583).

In usufructs, who is responsible for repairs and taxes?

(1) In the case of repairs, it depends:

a) For ordinary repairs, or those required by the natural use of the thing and are indispensable for its preservation – the usufructuary is responsible;

b) For extra-ordinary repairs, or those which are neither required by the wear and tear due to the natural use of the thing nor are indispensable for its preservation – the naked owner is responsible (Articles 592, 593)

(2) In case of taxes, it depends:

a) For those imposed upon or which constitute a lien on the fruits – the usufructuary is responsible;

b) For those imposed directly upon the thing or capital itself – the naked owner is responsible (Articles 596, 597)

X donated a real property to Y, who accepted it. He however reserved the right of usufruct. Is he required to make an inventory or to give security?

No, because under the law, the requirements of giving security and making an inventory do not apply to the donor of a property who reserved the right of usufruct (Article 584).

X and Y are married. They have children A, B, and C. Y died, hence X married Z. A, B, and C are still minors but were the recipients of a donation from F, the father of X. Is X required to make an inventory and give security considering that he would be a usufructuary of said property?

Yes, because he contracted a second marriage as provided under Article 584.

CHAPTER 4. EXTINGUISHMENT OF USUFRUCT

What are the modes of extinguishing usufructs?

(1) By the death of the usufructuary, unless a contrary intention clearly appears;

(2) By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct;

(3) By merger of the usufruct and ownership in the same person;

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(4) By renunciation of the usufructuary;(5) By the total loss of the thing in usufruct;(6) By the termination of the right of the person constituting the usufruct;

and

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(7) By prescription (Article 603).

X was granted a usufruct over a parcel of land with a building constructed thereon. The building was totally destroyed. State the rights of the usufructuary.

The rights of the usufructuary are:

1. He has the right to make use of the land and the materials;2. If the owner of the land should wish to construct another building, he

shall have a right to occupy the land and make use of the materials, but is obliged to pay the usufructuary, during the continuance of the usufruct, the interest upon the sum equivalent to the value of the land and of the materials (Article 607).

A was given a usufruct over a building. He shares in the payment of the insurance over the building with the owner. In case of loss of the building, what are his rights?

His rights are:

1. He shall continue to enjoy the new building if the owner should construct one; or

2. He shall receive the interest on the insurance indemnity if the owner does not wish to rebuild (Article 608).

Suppose the usufructuary refused to contribute to the insurance over the building, state the rules.

The owner shall receive the full amount of the insurance indemnity in case of loss, should the usufructuary have refused to contribute to the insurance, the owner insuring the tenement alone, the latter shall receive the full amount of the insurance indemnity in case of loss, saving always the right granted to the usufructuary in the preceding article (Article 608, par. 2).

State the rules if the thing in usufruct is expropriated for public use.

In such a case, the owner shall be obliged to replace it with another thing of the same value and of similar condition or to pay the usufructuary the legal interest on the amount of the indemnity for the whole period of the usufruct. If the owner chooses the latter alternative, he shall give security for the payment of the interest (Article 609).

Is the bad use of the thing in usufruct a ground to extinguish the right?

No, under Article 610.

What is the right of the owner if there is bad use of the thing by the usufructuary?

If the abuse should cause considerable injury to the owner, the latter may demand that the thing be delivered to him, binding himself to pay annually to the usfructuary the net proceeds of the same, after deducting the expenses and the compensation which may be allowed him for its administration (Article 610).

A, B, and C were given the usufruct of a parcel of land by X. A and B died, leaving C alone. What is the effect of A and B’s death on the usufruct?

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Nothing. Under the law, a usufruct constituted in favor of several persons living at the time of its constitution shall not be extinguished until the death of the last survivor (Article 611).

Upon the termination of the usufruct, what must be done to the thing held in usufruct?

Upon the termination of the usufruct, the thing in usufruct shall be delivered to the owner, without prejudice to the right pertaining to the usufructuary or his heirs for taxes and extraordinary expenses which should be reimbursed. After the delivery has been made, the security or mortgage shall be cancelled (Article 612).

TITLE VII. EASEMENTS AND SERVITUDES

Chapter 1. EASEMENTS IN GENERAL

Section 1. DIFFERENT KINDS OF EASEMENTS

Define easement or servitude.

An easement or servitude is an encumbrance imposed upon an immovable for the benefit of a community or one or more persons (personal easements [Article 614]) or for the benefit of another immovable belonging to a different owner (real or predial easement [Article 613]).

Who are the parties to an easement?

Dominant estate – the immovable in favor of which the easement is established.

Servient estate – that which is subject thereto (Par. 2, Article 613).

Distinguish easement from servitude.

Easements is the name used in common law countries; servitude, in civil law countries.

An easement under common law is only one form of servitude (servitus), the latter term being broader.

An easement under common law is always predial or real (in favor of realty); servitude refers to a predial or real easement upon the one hand, or to a personal easement upon the other hand.

Note: As used in the Civil Code, however, easement is equivalent to servitude. Term “easement” was used instead of “servitude” because the former is better known in the Philippines and because it is the accepted term in the English language, the Civil Code having been written in English.

What are the characteristics of easement?

It is a real right – therefore an action in rem is possible against the possessor of the servient estate.

It is imposable only on another’s property – hence, there can be no true easement on one’s own property; thus merger in the same of the ownership of the dominant estate extinguishes the easement.

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It is alienable – a jus in re aliena (a real right that may be alienated although the naked ownership (nuda proprietas) is maintained.

It is a limitation or encumbrance on the servient estate for another’s benefit.

There is inherence (or inseparability), from the estate to which it belongs (Article 617).

It is indivisible (even if the tenement be divided) [Article 618]. It is intransmissible (unless the tenement affected be also transmitted or

alienated). It is perpetual (as long as the dominant and/or the servient estate exists

unless sooner extinguished by the causes enumerated by law.What is the nature of an easement?

By its very nature, an easement involves an abnormal restriction on property rights of the servient owner and is regarded as a charge or encumbrance on the servient estate, thus, easements are not presumed but maybe imposed by law. It is incumbent upon the owner of the dominant estate to establish by clear and convincing evidence the presence of all the precondition before his claim for easement of right of way may be granted. If it cannot be proven, it cannot be granted. (Cristobal vs. CA, G.R. No. 125339, June 22, 1998).

Can there be easement on personal property?

There can be no easement imposed on personal property; only immovables (not as defined by the Code, but those which really cannot be moved) may be burdened with easements. Such immovables include lands, buildings, roads.

What are the different classes of easements?

As to recipient of benefit – Real, when the easement is in favor of another immovable, or personal, when it is in favor of a community, or one or more persons to who the encumbered estate does not belong (Articles 613, 614).

As to source – Legal, if established by law, or voluntary, if established by the will of the owners (Article 619); and mixed, if created partly by agreement and partly by law. Legal easements, on the other hand, have for their object either pubic use or the interest of private persons (Article 634).

As to its exercise – Continuous or discontinuous, apparent or non-apparent; positive or negative.

Continuous easements are those the use of which are or may be incessant, without intervention of any act of man (Article 615, par 1).

Discontinuous easements are those which are used at intervals and depend upon the acts of man (Article 615, par. 3).

Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same (Article 615, par. 3).

Non-apparent easements are those which show no external indication of their existence (Article 615, par. 4).

Positive easements are those which impose upon the owner of the servient estate the obligation of allowing something to be done or doing it himself (Article 615).

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Negative easements are those which prohibit the owner of the servient estate from doing something which he could lawfully do if the easement did not exist (Article 615).

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Section 2. MODES OF ACQUIRING EASEMENTS

How are easements acquired?

Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years (Article 620), while continuous and non-apparent easements and discontinuous easements, whether apparent or non-apparent, can only be acquired by virtue of a title (Article 622).

What does the term title mean?Title does not necessarily mean a document. It means a juridical act or

law sufficient to create an encumbrance (like law donation, will, contract)

Can an easement of right of way be acquired by prescription?

No, because it is discontinuous in character, and under the law, only those which are both apparent and continuous can be acquired by prescription.

How shall the period of possession be computed in order that an easement may be acquired by prescription?

In order to acquire an easement by prescription, the time of possession shall be computed as follows:

In positive easements – from the day on which the owner of the dominant estate, or the person who may have use of the easement, commenced to exercise it upon the servient estate.

In negative easements – from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement (Article 621).

Who makes the notarial prohibition or who should commence the exercise of the easement?

The dominant estate, through its owner or usufructuary or possessor or legal representative; in other words, any one who desires to establish the easement.

A and B are neighbors. They own a party wall. A makes an opening or window in the party wall in 2005. When can B close the opening?

B can close it at anytime before 2015 because if by that time the window is still open, A has already acquired the easement of light and view by prescription of 10 years, counted from the opening of the windows since this is a positive easement (Article 668, par. 1). A window on a party wall is something allowed by a co-owner to be done on his own property (owned in common) and may therefore give rise to a positive easement or easement of sufferance.

A and B are neighbors. On his building’s wall, A opened a window beneath the ceiling joists to admit light in 2005. In 2015, can B still obstruct the light by constructing on his own lot a building higher than A’s?

Yes, unless A makes a notarial prohibition prohibiting B from making the obstruction.

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If in 2005, A makes the prohibition, may B still make the obstruction in

2012?

Yes, because it is only in 2015 (ten years after the notarial prohibition) when A may be said to have acquired this negative easement of light and view. After 2015, B may no longer obstruct.

Is the easement of light and view positive or negative?It depends.

If made on one’s own wall and the wall does not extend over the neighbor’s land, the easement is negative (because he only does an act of ownership, and to create an easement, a prohibition is required.

If made on one’s own wall which extends over the neighboring land (invading its atmospheric area), or if made on a party wall, the easement is created because of an act of sufferance or allowance, thus the easement is positive.

How may the absence of proof showing the origin of continuous non- apparent and discontinuous easements be cured?

It can be cured by a deed of recognition by the owner of the servient estate or by a final judgment (Article 623).

What are the rules on easements that apparently exist should they be alienated?

Before the alienation, there is no true easement. After alienation:

1. There arises an easement if the sign continues to remain there unless there is a contrary agreement. (The continuance of the sign is the title). (Though the law says “continues”, in reality, the easement arises for the first time, because before the alienation, no true easement existed).

2. There is no easement if the sign is removed or if there is an agreement to this effect (Article 625).

What is the effect of the establishment of an easement?

Upon the establishment of an easement, all the rights necessary for its use are considered granted.

What is the requisite in order that a voluntary easement may affect third persons?

To prejudice third persons, voluntary easements must be registered. (Registration is not generally not essential for legal easements since this exists as a matter of law and necessity.

What are the limitations upon the right of the owner of the dominant estate to exercise the easement once it is acquired?

The limitations are as follows:

First that the owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated; and

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Second, he cannot exercise it in another manner other than that previously established (Article 626).

A was exclusively allowed by B to pass through his land. After a while, A invited others to pass through or use the easement. Can B prohibit the act of the others? Why?

Yes, because to allow others to pass or cross through B’s estate would increase the burden. An easement shall be used only for the benefit of the immovable originally contemplated and in the manner previously established (Article 626).

Section 3.

RIGHTS AND OBLIGATIONS OF THE OWNERS OF THE DOMINANT AND

SERVIENT ESTATES

What are the rights of the dominant estate?

To exercise the easement and all necessary rights for its use including accessory easements (Article 625).

To make on the servient estate all works necessary for the use and preservation of the servitude, but:

A. This must be done at his own expense;B. He must notify the servient estate;C. He must select convenient time and manner; andD. He must not alter the easement nor render it more burdensome

(Article 627).

To ask for a mandatory injunction to prevent impairment or obstruction in the exercise of the easement when the owner of the servient estate obstructs the right of way by building a wall or fence.

To renounce totally (for an easement is indivisible) the easement if he desires exemption from contribution to expenses (Article 628).

What are the obligations of the dominant estate?

He cannot alter the easement (Article 627). He cannot make it more burdensome (Article 627).

A. Thus he cannot use the easement except for movable originally contemplated (Article 626);

B. In the easement of right of way, he cannot increase the agreed width of the path, nor deposit soil or materials outside of the boundaries agreed upon (for these acts would increase the burden), but he may allow others to use the path (this really does not increase the burden) except if the contrary has been stipulated.

If there be several dominant estates, each must contribute to necessary repairs and expenses in proportion to the benefits received by each estate (and not in proportion to the value of each estate). (In the absence of proof, we should presume the benefits to be equal).

Regarding the making of repairs, he cannot use the easement except for movable originally contemplated (Article 626).

Notes on

What are the rights of the servient estate?

To retain ownership and possession of the portion of his land affected by the easement (Article 630) even if indemnity is given (as in the case of easement of right of way) (Article 649), unless the contrary has been stipulated.

To make use of the easement, unless deprived by stipulation provided that the exercise of the easement is not adversely affected (Article 630) and provided further that he contributes to the expenses in proportion to benefits received, unless there is a contrary stipulation (Article 628, par. 2)

To change the location of a very inconvenient easement provided that an equally convenient substitute is made, without injury to the dominant estate (Article 629, par. 2)

What are the obligations of the servient estate?

He cannot impair the use of the easement (Article 629, par. 1). He must contribute to the expenses in case he uses the easement, unless

there is a contrary stipulation (Article 628, par. 2). In case of impairment, to restore conditions to the status quo at his

expense plus damages. To pay for the expenses incurred for the change of location or form part of

the easement (in proper case) (Article 629, par. 2).Section 4

MODES OF EXTINGUISHMENT OF EASEMENTS

What are the modes of extinguishing easements?

Easements are extinguished:

(1) By merger in the same person of the ownership of the dominant and servient estates;(2) By nonuser for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place;(3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number;(4) By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional;(5) By the renunciation of the owner of the dominant estate;(6) By the redemption agreed upon between the owners of the dominant and servient estates (Article 631).

What are the other grounds for extinguishment of easement?

The modes of extinguishing easements enumerated in Article 631 are not limitative.

There are other grounds not mentioned therein, such as:

a) Expropriation of the servient estate;b) Permanent impossibility to make use of the easement;

or permanent inutility of the easement;c) Annulment, rescission, or cancellation of the title

that constituted the easement;

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d) Abandonment of the servient estate;

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e) Resolution of the grantor to create the easement;f) Registration of the servient estate as Free, that is, the

easement was not registered on the title;g) In the case of a legal easement of right of way, the

opening of an adequate outlet to the highway extinguishes the easement, if the servient owner makes a demand for such extinguishment.

How does the use of easement prescribe?

The form or manner of using the easement may prescribe as the easement itself, and in the same way (Article 632).

The prescription refers to (a) the form and manner of using the easement, and (b) the easement itself. They prescribe in the same way, meaning possession or use of ten years. On the other hand, easement may be extinguished by non-user for ten years (Article 631, par. 2).

Would the non-user by some co-owners of the dominant estate result in prescription?

If the dominant estate belongs to several persons in common, the use of the easement by any one of them prevents prescription with respect to the others (Article 633).

The non-use by some will not result in partial extinguishment because of the indivisibility of the easement (Article 618)

Chapter 2 LEGAL EASEMENTS

Section 1 GENERAL PROVISIONS

What are legal easements?

They are easements imposed by law, and which have for their object either for public use or the interest of private persons (Article 634).

An easement is an encumbrance imposed upon an immovable for the benefit of a community or one or more persons, or for the benefit of another immovable owned by another person.

If an easement is imposed by law, it is known as legal easement. When it is constituted by the agreement of the owners of the dominant estate and the servient estate or by will, it is known as voluntary easement (Articles 688-693). When it is partly constituted by agreement and partly by law, it is known as a mixed easement.

What are the kinds of legal easements?

There are eight (8) legal easements under the Civil Code:

Easements relating to waters (Articles 637-648); Right of way (Articles 649-657); Party wall (Articles 658-666); Light and view (Articles 667-673); Drainage (Articles 674-676)

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Intermediate distances (Articles 677-681); Easements against nuisance (Articles 682-683); Lateral and subjacent support (Articles 684-687)

What governs legal easements for private persons or private use?

Easements established by law in the interest of private persons or for private use shall be governed by:

The provisions of Title VII (Easements or Servitudes). This is without prejudice to the provisions of general or local laws and ordinances for the general welfare. The latter prevails over the Civil Code in case of conflict as long as the aim of the local laws and ordinances is the general welfare of the public or community;

Agreements of the interested parties, if they had so desired to modify the easements, and the modification is not prohibited by law, or no injury will be suffered by a third person (Article 636).

Section 2EASEMENTS RELATING TO WATERS

What are the kinds of legal easements relating to waters?

Natural drainage of lands (Article 50 of the Water Code, amending Article 637 of the Civil Code);

Natural drainage of buildings (Article 674); Easements of riparian banks of navigation, floatage, fishing, salvage

(Article 51 of the Water Code, amending Article 638 of the Civil Code);

Easement of a dam (Articles 639, 647); Easement for drawing water or for watering animals (Articles 640-

641); Easement of aqueduct (Articles 643-646); Easement for the construction of a stop lock or sluice gate (Article

647).

What are the obligations of the servient estate (legal easement for natural drainage of lands)? 21

21 Article 637 (Repealed). The repealing law provides:

Article 50. Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stones or earth which they carry with them.

The owner of the lower estate cannot construct works which will impede this natural flow, unless he provides an alternative method of drainage; neither can the owner of the higher estate make works which will increase their natural flow (P.D. No. 1067, Water Code) (Source: Article 637 with an amendment. By way of exception, the servient estate may now construct works which may obstruct the natural flow of the waters as long as an alternative drainage has been provided.)

Article 637. Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stones or earth which they carry with them.

The owner of the lower estate cannot construct works which will impede this easement; neither can the owner of the higher estate make works which will

Notes on

increase the

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The servient estates, which are the lower estates have the obligation to receive not only the waters that naturally flow from the dominant estates (higher estates), but also the stones and soils flowing with them. Waters collected artificially in reservoirs or private dams are not included because in such cases the element of human intervention is present. Servient estates can refuse to accept such waters and the elements which the waters carry.

By reason of the obligation to receive the waters together with the stones and soils naturally flowing form the higher estates, the servient estates cannot do any of the following:

Construction of works that will impede the easement or which will divert the flow of the waters and burden any tenement without providing for an alternative route of drainage.

Enclosure of the land by ditches and fences to impede the flow of the waters (Lunod vs. Meneses, 11 Phil. 128). However, in Ongsiaco vs. Ongsiaco, 101 Phil. 1196, the easement was held to have been extinguished for non-user, when the dominant estate failed to file an action to demolish the dike within ten years.

What are the obligations of the dominant estates?

The owner of the dominant estates cannot cause the construction of works which will intensify the burden of the servient estates such as increasing the velocity or speed of the descent. They are, however, allowed to construct works that will be beneficial to the servient estates, such as works designed to prevent erosion of the land.

They must compensate the owners of the servient estates if the waters are the result of an overflow from irrigation dams, or the result of artificial descent done by man and damages caused by reason thereof.

There will be no indemnity if the conditions laid down in the law had been complied with by the dominant estate.

What are the easements covered on riparian banks? 22

burden.22 Article 638 has been repealed by Article 51 of PD 1067 (Water Code)

Article 51. The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a zone of three (3) meters in urban areas, twenty(20) meters in agricultural areas and forty (40) meters in forest areas, along their margins, are subject to the easement of public use in the interest of recreation, navigation, floatage, fishing and salvage. No person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any kind.

Article 638. The banks of rivers and streams, even in case they are of private ownership, are subject throughout their entire length and within a zone of three meters along their margins, to the easement of public use in the general interest of navigation, floatage, fishing and salvage.

Estates adjoining the banks of navigable or floatable rivers are, furthermore, subject to the easement of towpath for the exclusive service of river navigation and floatage.

If it be necessary for such purpose to occupy lands of private ownership, the proper indemnity shall first be paid.

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Easement of public use in the interest of recreation; Navigation; Floatage; Fishing; Salvage

What is the width of zone subject to easements on banks of rivers, streams, shores of seas and lakes?

Urban areas – 3 meters; Agricultural areas – 20 meters; Forest areas – 40 meters;

The above measurements follow the entire length of the rivers, streams, shores, seas and lakes along their margins.

The construction of any structures of any kind on the zones is prohibited. And the length of stay on the areas cannot be longer than what is necessary for the purpose indicated.

What is easement of abutment of a dam?

Whenever for the diversion or taking of water from a river or brook, or for the use of any other continuous or discontinuous stream, it should be necessary to build a dam, and the person who is to construct it is not the owner of the banks, or lands which must support it, he may establish the easement of abutment of a dam, after payment of the proper indemnity (Article 639).

If the dam is constructed without permission of the owner of the land where it was constructed, the latter can have it demolished as a nuisance (Solis vs. Pujeda, 42 Phil. 687).

What are compulsory easements for drawing water or for watering animals?

Compulsory easements for drawing water or for watering animals can be imposed only for reasons of public use in favor of a town or village, after payment of the proper indemnity (Article 640).

These two easements can be imposed only for reasons of public use and not for the private use of one or a few persons. The easements which are compulsory are allowed only in favor of a town or village. A town refers to a municipality. A village refers to a barrio or barangay, or to a well populated community. The reason of the law is the facilitation of the establishments of rural towns and barrios by the convenience of access to water needed.

What are the easements (and obligations) imposed on the servient estate for drawing water and for watering animals?

Easements for drawing water and for watering animals carry with them the obligation of the owners of the servient estates to allow passage to persons and animals to the place where such easements are to be used, and the indemnity shall include this service (Artic le 641).

The width of the implied right of way cannot exceed ten (10) meters (Article 657, last

par.).

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What is easement of aqueduct?

Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through the intervening estates, with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend (Article 642).

Definition of aqueduct – An aqueduct is a conduit or artificial channel for conducting water from a distance. The Article speaks of a compulsory easement of aqueduct.

What are the obligations of the owner of the dominant estate who exercises the right of easement of aqueduct?

One desiring to make use of the right granted in the preceding article is obliged:

(1) To prove that he can dispose of the water and that it is sufficient for the use for which it is intended;

(2) To show that the proposed right of way is the most convenient and the least onerous to third persons;

(3) To indemnify the owner of the servient estate in the manner determined by the laws and regulations (Article 643).

The absence of any one of these requirements will prevent the imposition of the easement of aqueduct on the intervening estates.

Note that the existence of an easement of right of way does not necessarily include the easement of aqueduct.

What are the restrictions on easement of aqueduct if the same is for private interest only?

The easement of aqueduct for private interest cannot be imposed on buildings, courtyards, annexes, or outhouses, or on orchards or gardens already existing (Article 644).

If an easement of aqueduct will be allowed to burden the said properties, there will be an invasion of the privacy of the premises of the owners thereof. However, if the easement of aqueduct is for the benefit of the public use or community, it can be imposed on the said enumerated properties. Public interest prevails over private interest.

What are the rights of the servient estate despite the existence of easement of aqueduct?

The easement of aqueduct does not prevent the owner of the servient estate from (1) closing or fencing it, or (2) from building over the aqueduct; provided that (10 no damage is caused to the aqueduct; or, repairs and cleanings of the aqueduct shall not be rendered impossible (Article 645).

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

For legal purposes, how is easement of aqueduct considered?

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

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the needs of the dominant estate, or upon a schedule of alternate days or hours (Article 646).

As such, the easement may be acquired by title or by prescription of ten years (Article 620).

Note: Since under the Water Code (Articles 5 and 6), all waters belong to the State, an easement of aqueduct could no longer be acquired by prescription, unless the waters involved take the nature of patrimonial property of the State.

What are the requirements for the establishment of stop lock or sluice gate in the bed of a stream?

One who for the purpose of irrigating or improving his estate, has to construct a stop lock or sluice gate in the bed of the stream from which the water is to be taken, may demand that the owners of the banks permit its construction, after payment of damages, including those caused by the new easement to such owners and to the other irrigators (Article 647).

What is the prevailing law on waters? 23

The establishment, extent, form and conditions of easements of water not expressly determined by the provisions of this code (PD 1067, Water Code) shall be governed by the provisions of the Civil Code (Article 52, PD 1067).

The Water Code (PD 1067) is now the main special law involving waters. In case of conflict between the Water Code and the Civil Code, the Water Code shall prevail being the latter in point of time. However, the Civil Code shall remain the prevailing law in case of conflict on the following matters:

Establishment of easement of waters; Extent of easement of waters; Form of easement of waters; Conditions of easement of waters

- provided these matters have not been expressly determined by the Water Code.

Section 3 EASEMENT OF RIGHT OF WAY

What is easement of right of way?

It is an easement or privilege by which one person or a particular class of persons is allowed to pass over another’s land, usually thru one particular path or line. The term ‘right of way’, upon the other hand, may refer either to the easement itself, or simply, to the strip of land over which passage can be done.

23 Article 648 has been repealed by Article 52 of PD 1067.

Article 648. The establishment, extent, form and conditions of the servitudes of waters, to which this section refers, shall be governed by the special laws relating thereto insofar as no provision therefor is made in this Code.

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What are the requisites for easement of right of way?

(1) That the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1);

(2) After payment of proper indemnity (Art. 649, par. 1);(3) That the isolation was not due to acts of the proprietor of the dominant

estate (Art. 649, last par.); and,(4) That the right of way claimed is at the point least prejudicial to the

servient estate; and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest (Art. 650). 24

Notes:- The burden of providing the existence of the prerequisites to

validly claim a compulsory right of way lies on the owner of the dominant estate. 25

- In order to justify the imposition of the servitude of right of way, there must be a real, not a fictitious or artificial necessity for it. Mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement. Even in the face of a necessity, if it can be satisfied without imposing the servitude, the same should not be imposed. This easement can also be established for the benefit of a tenement with an inadequate outlet, but not when the outlet is merely inconvenient.26

- In the case of Ramos v. Gatchalian, G.R. No. 75905, October 12, 1987, 154 SCRA 703, the Supreme Court denied access to Sucat Road through Gatchalian Avenue in view of the fact that petitioner had a road right of way provided by the Sobrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its subdivision plan for the buyers of its lots, notwithstanding that said lot was still undeveloped and inconvenient to petitioner. Even if Ramos, the petitioner therein, had "to pass through other lots belonging to other owners, which are grassy and cogonal, as temporary ingress/egress with great inconvenience particularly due to flood and mud," the Court did not allow the easement because it would run counter to existing jurisprudence that mere convenience for the dominant estate does not suffice to serve as basis for the servitude. This ruling was reiterated in Rivera v. Intermediate Appellate Court, G.R. No. 74249, January 20, 1989, 169 SCRA 307, 313 and Constabella Corporation v. Court of Appeals, G.R. No. 80511, January 25, 1991, 193 SCRA 333, 339.

- Legal easement does not depend upon the consent of the servient owner or owners.

- Generally, an easement of right of way is compulsory. However, by way of exception, if the isolation of the immovable is due to the acts of the owner of the immovable (supposed dominant estate), the easement is not compulsory. There is no legal obligation on the part of the servient estate to grant right of way.

- If the outlet to a highway is through water, like river, lake or sea, and the same is not dangerous to cross nor do they pose grave inconvenience, the

24

Simeon Floro vs. Orlando A. Llenado, G.R. No. 75723, June 2, 1995.25 Simeon Floro vs. Orlando A. Llenado, Supra.26 Ibid.

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right of way should not be granted. If the waterway is too expensive, it is as if there is no available outlet to the highway. In which case, the right of way is grantable.

How shall the indemnity to be paid by the owner of the dominant estate to the owner of the servient estate be assessed?

- If the passage is permanent, pay the value of land occupied by the path plus damages. Upon extinction of the easement, the indemnity is returned without interest, for the interest is considered rent (Article 655).

- If temporary, pay for the damages caused. It is temporary when, for example, the estate is not being cultivated the whole year round, and when harvesting is only once in a while (Article 649, 3rd

par.), or when the carrying of materials is needed to improve a building (Article 656).

What are the two different instances where indemnity is not required?

Whenever a piece of land acquired by sale, exchange or partition, is surrounded by other estates of the vendor, exchanger, or co-owner, he shall be obliged to grant a right of way without indemnity.

In case of a simple donation, the donor shall be indemnified by the donee for the establishment of the right of way (Article 652).

What is the rule if the grantor’s or grantee’s land is enclosed?

In the case of the preceding article, if it is the land of the grantor that becomes isolated, he may demand a right of way after paying a indemnity. However, the donor shall not be liable for indemnity (Article 653).

Example:

X sold a parcel of land to Y, but it is surrounded by X’s land. What is the right of Y? He can demand a right of way without indemnity.

Suppose the property given to Y was donated, will your answer be the same? No, because in this case, the donor shall be indemnified.

Who bears the expenses for taxes, and repairs of the right of way?

- Even though permanent, the path belongs to the servient estate, and he pays all the taxes.

- But the dominant estate should pay for the repairs and should pay for the proportionate share of taxes to the servient estate. Proportionate means the whole tax for the whole estate (Article 654).

What is the effect upon the right of way if the owner of the dominant estate has joined his estate to another abutting on a public road, or if a new road is opened giving it access?

The easement is extinguished provided that the servient estate demands and so long as the public highway substantially meets the needs of the dominant estate, and provided he returns what he may have received by way of indemnity. The interest on the indemnity shall be deemed to be in payment of rent for the use of the easement.

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Causes for extinguishment of the easement of right of way:

- Opening of a new road (Article 655, par. 2);- Joining the dominant estate to another (that is the latter becomes

also the property of the dominant owner) which abuts, and therefore has access to the public highway (Article 655, par. 1) But the new access must be adequate and convenient.

Notes:

- Extinguishment is not automatic, because the law says that the servient owner “may demand”. It follows that if he chooses not to demand, the easement remains and he has not duty to refund the indemnity.

- The Article applies only to the legal or compulsory easement of right of way, not to a voluntary one.

What are the maximum widths for easement of way for the passage of livestock?

- Animal path – 75 meters;- Animal trail – 37 meters and 50 centimeters;- Cattle – 10 meters (unless prior to the old Civil Code, vested rights

had been acquired to a greater width)

What are the requisites for easement of right of way for the passage of livestock?

- Payment of indemnity;- The easement can be imposed only for reasons of public use in

favor of a town or village (Articles 640 and 641)

Section 4 EASEMENT OF PARTY WALL

What is a party wall?

This is a wall at the dividing line of estates. Co-ownership governs the wall, hence the party wall is necessarily a common wall.

What are the rules that govern easement of party wall?

- Provisions of the Civil Code on Title VII (Easements and Servitudes);- Local ordinances and customs which do not conflict with the

provisions of the Civil Code on Title VII;- Provisions of the Civil Code in Co-ownership (Articles 484 to 501)

When is an easement of a party wall presumed to exist?

The existence of an easement of party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary:

(1) In dividing walls of adjoining buildings up to the point of common elevation;

(2) In dividing walls of gardens or yards situated in cities, towns, or in rural communities;(3) In fences, walls and live hedges dividing rural lands (Article 659).

How may the presumption rebutted?

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- Title to the contrary;- Exterior signs to the contrary;- Proof to the contrary.

What is the rule in case of conflict between a title and exterior sign?

A title conferring (expressly) ownership in one owner prevails over a mere exterior sign (from which, there is merely an inference).

What are exterior signs negativing the existence of a party wall?It is understood that there is an exterior sign, contrary to the easement of party wall:

(1) Whenever in the dividing wall of buildings there is a window or opening;

(2) Whenever the dividing wall is, on one side, straight and plumb on all its facement, and on the other, it has similar conditions on the upper part, but the lower part slants or projects outward;

(3) Whenever the entire wall is built within the boundaries of one of the estates;

(4) Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others;

(5) Whenever the dividing wall between courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only one of the estates;

(6) Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other;

(7) Whenever lands inclosed by fences or live hedges adjoin others which are not inclosed.

In all these cases, the ownership of the walls, fences or hedges shall be deemed to belong exclusively to the owner of the property or tenement which has in its favor the presumption based on any one of these signs (Article 660).

What is the (rebuttable) presumption as to ditches or drains?

Ditches or drains opened between two estates are also presumed as common to both, if there is no title or sign showing the contrary.

There is a sign contrary to the part-ownership whenever the earth or dirt removed to open the ditch or to clean it is only on one side thereof, in which case the ownership of the ditch shall belong exclusively to the owner of the land having this exterior sign in its favor (Article 661).

Who bears the cost of repairs on and construction of the party wall?The cost of repairs and construction of party walls and the maintenance of

fences, live hedges, ditches, and drains owned in common, shall be borne by all the owners of the lands or tenements having the party wall in their favor, in proportion to the right of each (Article 622, par. 1).

How may the co-owner exempt himself from contributing to this charge?Nevertheless, any owner may exempt himself from contributing to this

charge by renouncing his part-ownership, except when the party wall supports a building belonging to him (Article 662).

What are the requisites for the renunciation of the share?

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- It must be total or complete (not partial) (The rule is different in ordinary co- ownership where partial renunciation is allowed);

- It must be made voluntarily and with full knowledge of the facts;- It must be made before the expenses are incurred;- It is made with the implied condition that the other owner should

make or pay for the repairs;- It must be of both the share in the wall and the share in the land,

for the wall cannot be used without the land.

What is the rule if the owner of a building supported by a party wall desires to demolish the building?

If the owner of a building, supported by a party wall desires to demolish the building, he may also renounce his part-ownership of the wall, but the cost of all repairs and work necessary to prevent any damage which the demolition may cause to the party wall, on this occasion only, shall be borne by him (Artic le 663).

May an owner increase the height of a party wall?

Every owner may increase the height of the party wall, provided that:

- He does so at his own expense;- He pays for any damage which may be caused by the work, even

though such damage be temporary;- He bears the expenses of maintaining the wall in the part newly

raised or deepened at its foundation shall also be paid for by him;- He pays for the indemnity for the increased expenses which may

be necessary for the preservation of the party wall by reason of the greater height or depth which has been given it;

- If the party wall cannot bear the increased height, the owner desiring to raise it shall be obliged to reconstruct it at his own expense;

- If for this purpose it be necessary to make it thicker, he shall give the space required from his own land (Article 664).

of.

He will however be the exclusive owner of the additions unless Article 665 is availed

How may the other owners acquire part-ownership in the additions?The other owners who have not contributed in giving increased height, depth or

thickness to the wall may, nevertheless, acquire the right of part-ownership therein, by paying proportionally the value

of the work at the time of the acquisition and of the land used for its increased thickness (Article 665).

What is the right of every part-owner of a party wall as to its use?

Every part-owner of a party wall may use it in proportion to the right he may have in the co-ownership, without interfering with the common and respective uses by the other co- owners (Article 666).

Section 5 EASEMENT OF LIGHT AND VIEW

What is the prohibition on part-owners on

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party walls?

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No part-owner may, without the consent of the others, open through the party wall any window or aperture of any kind (Article 667)

An opening in a party wall up to the point of common elevation is an exterior sign contradicting the existence of an easement of party wall (Article 660, par. 1). This means that the wall is exclusively owned by the person favored by the presence of exterior sign.

How shall the period of prescription for the acquisition of an easement of light and view be counted?

The period of prescription for the acquisition of an easement of light and view shall be counted:

(1) From the time of the opening of the window, if it is through a party wall; or

(2) From the time of the formal prohibition upon the proprietor of the adjoining land or tenement, if the window is through a wall on the dominant estate (Article 668).

When is an easement of light and view positive and when is it negative?

- Positive – if the window is thru a party wall (Article 668, par. 1). Therefore, the period of prescription commences from the time the window is opened. (The mere opening of the window does not create an easement; it is only after a sufficient lapse of time the window still remains open, that the easement of light and view is created (Article 668, par. 1).

- Negative – if the window is thru one’s own wall, that is, thru a wall of the dominant estate (Article 668, par. 2). Therefore, the time for the period of prescription should begin from the time of notarial prohibition upon the adjoining owner.

Exception: Although the window is on the wall of the dominant estates till the easement of light and view would be positive if the window is on the balcony or extension extending over the land of the servient estate. In such case, there is no need of notarial prohibition.

What are restricted windows?

When the distances in article 670 are not observed, the owner of a wall which is not party wall, adjoining a tenement or piece of land belonging to another, can make in it openings to admit light, provided that:

- The opening must be at the height of the ceiling joints or immediately under the ceiling

- The maximum size is 30 centimeters square (not more than 30 cm length or width)

- It must be with an iron grating imbedded in the wall;- It must be with a wire screen (Article 669).

Nevertheless, the owner of the tenement or property adjoining the wall in which the openings are made can close them should he acquire part-ownership thereof, if there be no stipulation to the contrary.

What are the sanctions for violations?

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The adjoining owner can compel the dominant owner to close the opening, or to comply with the requirements. If the servient owner has not protested for ten years from the opening of the apertures, his action to compel for closure is deemed prescribed.

However, this does not mean that the servient owner could not construct a building on his own land which will obstruct the light and view of the dominant owner. The easement is negative, there is need of notarial prohibition unto the servient owner.

If none had been made, or if one had been made but the required 10 year period for prescription had not elapsed, the servient owner can obstruct the light and view of the dominant owner by:

- constructing a building on his land, or- raising a wall thereon contiguous to the wall of the dominant

owners. (Article 669, last par).

However, the servient owner cannot obstruct the opening for light, if an easement of light had already been acquired by the dominant owner through (a) prescription or (b) by stipulation occasioned by the acquisition of part-ownership of the wall by the sevient owner (Article 669, par. 2).

If the owner of a building would like to have a window or balcony which will either give him a direct or oblique view over an adjoining tenement, what distance must be observed?

No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards an adjoining land or tenement can be made, without leaving a distance of two meters between the wall in which they are made and such contiguous property.

Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of sixty centimeters.

The nonobservance of these distances does not give rise to prescription (Article 670).

Article 670 applies only to windows, apertures, balconies or other similar projections affording a direct view upon the adjoining land or tenement. The required minimum distances of these structures to the boundary line is 2 meters if the view is direct and 60 meters of the view is oblique.

What are the distinctions between the openings in Article 669 and those in Article 670?

The openings in Article 669 are irregular windows and smaller in size and they are intended purely for admission of light; while the openings in Article 670 are regular windows and are intended both for light and view.

How shall the distances in Article 670 be measured in cases of direct and oblique views?

The distances referred to in the preceding article shall be measured in cases of direct views from the outer line of the wall when the openings do not project, from the outer line of the latter when they do, and in cases of oblique view from the dividing line between the two properties (Article 671).

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How is direct view distinguished from oblique view?

- Direct view is the gaining of direct sight from an opening in a wall parallel to the boundary line without having to extend out or turn one’s head to see the adjoining tenement. Here, there is an effortless act of seeing the parallel tenement.

However, it is not necessary always that the wall sustaining the opening and the dividing line be exactly and geometrically parallel.

- Oblique or side view is the gaining of sight of other tenement from an opening made at an angle with the boundary line, such that to be able to see the adjoining tenement, there is a necessity for putting out or turning one’s head either to the lefty or to the right.

What is the rule when the buildings are separated by a public way or alley?

The provisions of article 670 are not applicable to buildings separated by a public way or alley, which is not less than three meters wide, subject to special regulations and local ordinances (Article 672).

There must be a minimum distance of 3 meters.

Suppose that an easement of light and view has been acquired, what is the distance which must be observed by the owner of the servient estate if he desires to construct a house on his own property?

Whenever by any title a right has been acquired to have direct views, balconies or belvederes overlooking an adjoining property, the owner of the servient estate cannot build thereon at less than a distance of three meters to be measured in the manner provided in article 671. Any stipulation permitting distances less than those prescribed in article 670 is void (Article 673).

The article refers to the acquisition of easement of restraint prohibiting the servient owner from building any structure on his land at a distance of less than 3 meters measured from the boundary line of the two estates. This is true servitude.

The acquisition is by title which means by agreement, donation, will or prescription. What has been acquired by title is a right (a) to have direct views; (b) to have and maintain balconies; or (c) belvederes overlooking the adjoining tenement.

SECTION 6 DRAINAGE OF BUILDINGS

What are the restrictions of the servient owner with respect to easement of drainage of buildings?

The owner of a building shall be obliged:

- To construct its roof or covering in such manner that the rain water shall fall on his own land or on a street or public place, and not on the land of his neighbor, even though the adjacent land may belong to two or more persons, one of whom is the owner of the roof.

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- Even if it should fall on his own land, the owner shall be obliged to collect the water in such a way as not to cause damage to the adjacent land or tenement (Article 674).

What are the restrictions, if any, of the dominant owner?

The dominant owner, who has on his favor an easement of drainage constituted on a specified area of the servient estate for the drainage of rain water, is not allowed to construct a building with a roof protruding over the stipulated area subject of the easement (Purugganan vs. Paredes, 69 SCRA 69).

Note that this Article is not really create an easement as it merely regulates use of a person’s property insofar as rain water is concerned.

What is the obligation of the servient owner with respect to the easement of receiving water falling from roofs?

The servient owner should provide an outlet for the passage of falling water to a public street or in accordance with the regulations to local ordinances or customs to prevent damage to the dominant estate (Article 675).

This applies to places where buildings are constructed on mountainous or elevated areas and the roofings of these existing buildings are of different heights. Those in the lower areas may be receiving in their roofs rain water coming or falling form neighboring roofs.

What is the rule if a yard or court of a house is surrounded by other houses and there is no outlet for the drainage of rain water collected therein?

The owner of said property can demand the establishment of an easement of drainage from the neighboring estates:

- To give an outlet to the water at the point of the contiguous lands or tenements where its egress may be easiest, and

- To establish a conduit for the drainage

Before these can be demanded, the following conditions must be present:

- The outlet must be at the point of easiest egress;- It must cause the least damage to the servient estate;- There must be payment of the proper indemnity.

The easement referred to in this Article (which is compulsory after payment of indemnity) may be complied with by following Article 675.

SECTION 7INTERMEDIATE DISTANCES AND WORKS FOR CERTAIN

CONSTRUCTIONS AND PLANTINGS

What are the limitations with regard to constructions near fortified places?

No constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions required in special laws, ordinances, and regulations relating thereto (Article 677).

Notes on

A fortress is a military structure of the State against foreign aggression. For reasons of public security and safety, the law prohibits the construction of buildings, the planting of trees, shrubs, etc. near these fortresses. The panoramic vision of guards should not be obstructed or blocked with any standing objects.

What are the prescribed distances in the construction of any aqueduct, well, sewer, furnaces, forge, chimney, stable, depository corrosive substances, machinery or factory which by its nature or products is dangerous or noxious?

- The distances prescribed by the regulations and customs of the place must be observed.

- The adjoining proprietors cannot stipulate with the builder or maker that they are renouncing or waiving any objection to the illegal constructions. Such stipulation is void for being against public policy, for the State is under obligation to promote and maintain the general welfare of the people.

- If there are no regulations or customs in the place that could be applied, necessary precautions should be taken by the builder or maker to prevent any damage to the neighboring lands or tenement (Article 678)

- Illegal structures can be ordered demolished and the one who caused their establishment could be liable for damages.

What are the distances to be observed in the planting of trees?

- If there are ordinances or customs: Follow the distance authorized by the ordinances in the locality; if there are none, follow the generally accepted customs in the place.

- If there are no ordinances or customs: When tall trees are planted – at least 2 meters from the

dividing line of the two estates measured to the center of the tree.

When small trees or shrubs are planted – at least 50 centimeters from the dividing line of the two estates measured to the center of the tree (Article 679)

What is the remedy in case of violation?

In case of violation of the law, ordinances or customs, the neighboring land owners can demand the removal of the trees illegally planted. This remedy also apples to tree which have grown spontaneously, that is, without any though of planting them in the tenement of the servient owner (Article 679, par. 3).

What are the rights of the owner of the neighboring estate to over- extending tree branches or roots?

- If the branches of any tree should extend over a neighboring estate, tenement, garden or yard, the owner of the latter shall have the right to demand that they be cut off insofar as they may spread over his property;

- If it be the roots of a neighboring tree which should penetrate into the land of another, the latter may cut them off himself within his property (Article 680). The justification for this is that by accession, he became the owner of the roots and as owner, he has the right to destroy them.

- The branches and roots of trees which have intruded into the boundaries of the adjacent tenements can be cut down by the owner of said trees even if the comforting shade enjoyed by the adjacent tenement would be done away with. This is his indisputable right being the owner thereof (Crudo vs. Mancilla, et

Notes on

al., 37 O.G. No. 104, p. 2089).

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What is the rule as to falling fruits?

When the branches of a fruit bearing tree extend over the tenement of a neighbor, fruits naturally falling upon adjacent land belong to the owner of said land (Article 681).

The falling of the fruits must not be induced such as by forceful shaking of the tree or its branches, or by the use of gathering poles or sticks. Such act will

constitute theft of fruits.

When still hanging, the fruits belong to the owner of the tree. But once they naturally fall on the ground of the neighboring tenement, they pertain to the latter. The mode of acquisition by the neighbor is by law (Article 712).

SECTION 8 EASEMENT AGAINST NUISANCE

What is easement against nuisance?

Every building or piece of land is subject to the easement which prohibits the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes (Article 682).

Who are servient and dominant in an easement against nuisance?

The proprietor or possessor of the building or piece of land, who commits the nuisance through noise, jarring, offensive odor, etc. is the servient in an easement against nuisance; in another sense, the building or the land itself is the servient estate, since the easement is inherent in every building or land.

The dominant is the general public, or anybody injured by the nuisance.

What are the restrictions on establishment of factories and shops?

Industrial factories and commercial shops may be established subject to regulation

on:

- zoning,- health,- police, and- other laws and regulations,- the least possible annoyance caused to the neighborhood (Article

683).

SECTION 9LATERAL AND SUBJACENT SUPPORT

What is easement on lateral and subjacent support?

No proprietor shall make such excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support (Article 684).

What lateral and subjacent supports?

Notes on

Lateral support – this is the support on the vertical side of a land, the removal of which may cause the land to crumble or slide. If there is a building on the land, the lateral pressure on the land becomes greater. The removal of the lateral support of the land where a building stands may trigger the weakening of the foundation and cause the collapse of the building.

Subjacent support – this is the horizontal support underneath a land or building the removal of which may cause the sinking or crumbling of the land or building.

What are the remedies of the adjacent owner?

The remedies of the adjoining owners against dangerous excavations are:

- Injunction before the excavation had been consummated; and- Claim for damages for the injuries sustained.

What is the effect of owner’s consent to excavations dangerous to adjacent land or building?

Any stipulation or testamentary provision allowing excavations that cause danger to an adjacent land or building shall be void (Article 685).

What is the extent of the legal easement of lateral and subjacent support?

The legal easement of lateral and subjacent support is not only for buildings standing at the time the excavations are made but also for constructions that may be erected (Article 686).

What is the requirement before a proprietor can make any excavation?

Any proprietor intending to make any excavation contemplated in the three preceding articles shall notify all owners of adjacent lands (Article 687).

It must be noted that the giving of notice to the adjacent owners is merely an additional precaution. It is not a substitute for one’s duty to exercise reasonable care to avoid injury to the adjacent lands or buildings.

CHAPTER 3 VOLUNTARY EASEMENTS

What are the restrictions of an owner’s right to constitute easement?

Every owner of a tenement or piece of land may establish thereon the easements which he may deem suitable, and in the manner and form which he may deem best, provided he does not contravene the laws, public policy or public order (Article 688).

What is perdial servitude?

This servitude is a charge laid on the estate for the use and utility of another estate belonging to another owner; a charge on one estate for the stipulated benefit of another estate; the benefit must be attributed to any person who may own the dominant estate at any time.

Notes on

In voluntary easements, who acts for the dominant estate?

- Only the owner or someone else, in the name of and with the authority of the owner, may establish a voluntary predial servitude on his estate, for this is an act of ownership.

- In case the property is subject to a usufruct, to create a permanent or perpetual voluntary easement, the owner needs the consent of the usufructuary because the latter has a real right over the property which is entitled to respect.

- If the title of one who constituted the servitude is annulled, the servitude is extinguished because only an owner can create a servitude on a property.

- If the title is subject to a resolutory condition, and the condition us fulfilled, the servitude is extinguished.

- If the servitude is created by the usufructuary or by a possessor in good faith, the servitude is terminated when the usufruct or possession is terminated. In such a case, what was actually granted is just a personal right.

Can a servitude co-exist with a subsisting usufruct?

When the usufruct of a piece of land is contracted to another person, the owner of the land may impose servitudes thereon, even without the consent of the usufructuary, provided the servitude ill not affect or prejudice the usufruct (Article 689).

What is the limitation on usufruct with regard to voluntary easement?

If the easement is perpetual, the consent of the naked owner as well as the usufructuary must be obtained (Article 690).

However, the rule is different when the easement is legal. Its imposition does not depend upon the consent of the co-owners. It is the law which imposes it because of necessity.

What is the requirement to constitute a voluntary easement on a property owned in common?

In order to impose an easement on an undivided tenement, or piece of land, it is required that there must be consent of all the co-owners.

However,

- The consent need not be simultaneously as the law provides that the consent already given by some will be held in abeyance until the last one of all the co-owners shall have expressed his conformity.

- The consent given by one of the co-owners separately from the others shall bind the grantor and his successors not to prevent the exercise of the right granted (Article 691).

- Once the consent of a co-owner is given, he cannot withdraw it anymore, unless the consent is vitiated. His successors cannot revoke the consent already given.

- During the time that the other co-owners have not yet given their consent to the constitution of the easement, the consent previously given by a co- owner will stand as a continuing consent. He need not give another consent, when all the others had finally given theirs.

Notes on

What are the rules which determine the rights of the dominant estate and obligations of the servient estate?

The relationship of the dominant estate and the servient estate insofar as their rights and obligations are concerned are governed:

- By title (e.g. contract, will) which constituted the easement;- By the manner and form of possession, if the easement was

acquired by prescription;- In default thereof, the easement shall be governed by the Civil

Code provisions as are applicable thereto (Article 692).

The Civil Code will only apply suppletorily. However, in the absence of the two above, the Civil Code shall apply primarily.

If the owner of the servient estate should have bound himself to bear the cost of the work required for the use and preservation thereof, how may he free himself from this obligation?

He may free himself from this obligation by renouncing his property to the owner of the dominant estate (Article 693).

If the easement affects the entire servient tenement, the renunciation or abandonment must be total.

BOOK IIIDifferent Modes of Acquiring Ownership

INTRODUCTION

Ownership

Ownership is acquired by 1) occupation and by 2) intellectual creation.

Ownership and other real rights over property are also acquired and transmitted by

3) law, 4) donation, 5) testate and intestate succession, 6) prescription and 7) in consequence of certain contracts, tradition (Article 712).

The first three are original and the last four are derivative.

Theory of mode and title

Mode is a way or process of acquiring or transferring ownership; while title refers to the juridical act or deed which is not sufficient by itself to transfer ownership but it provides a juridical justification for the effectuation of a mode. Consequently, mode directly produces a real right, while title serves only to produce a means or occasion for its acquisition. In other words, mode is the cause, while title is the means.

Thus, if a seller sells his car to a buyer, the sale is the title while the delivery (tradition) is the mode which makes the buyer the owner of the ring. A title merely creates a personal right which could real right if followed with delivery. 27

27 Note that in the law on succession, the title is also the mode. Hereditary rights are transferred from the moment of death of the decedent (Article 777). Delivery (tradition) is

Notes on

Occupation

Mode

Seizure

Title

Property seized iswithout a known owner

Intellectual creation Emergence or discovery

Originality or novelty

Law Force of law Concurrence prerequisite conditions

of

Donation Formalities/delivery Agreement of parties

Succession Death Law or willTradition Delivery Agreement of the parties

Prescription Lapse ofprescribed

periodPossession in the concept of an owner

MODES

I. Occupation

Occupation is a mode of acquiring ownership by 1) the seizure of 2) corporeal things

3) which do not do not have an owner [res nullius] 4) with the intention of acquiring them 5) in accordance with the rules prescribed by law.

Things that may be acquired by occupation are those appropriable by nature which are 1) without an owner, such as animals that are the object of hunting and fishing, 2) hidden treasure and 3) abandoned movables (Article 713). It cannot be asserted as a mode of acquiring ownership over a thing that is owned by another

Ownership of a piece of land cannot be acquired by occupation (Article 714) because when land is without an owner, it pertains to the State.

Animals:

1) If the animal is wild in the sense that it is in its state of natural freedom, the finder becomes the owner from the moment that he has captured it. This rule is applicable even to a wild animal which had been captured but which regained its natural freedom (Article 713).

2) If the animal is domesticated in the sense that it was originally wild but it has been captured, subdued and made use of by man so that it has formed the habit of returning to the premises of the possessor (Article 560), so long as it retains the habit of returning to such premises, the finder cannot become the owner thereof unless he complies with the formalities prescribed by law for the acquisition of ownership of ordinary personal property; but once it loses the habit of retuning to such premises, he becomes the owner thereof only if

not a condition pre-requisite to transfer ownership. Actual possession, however, may be exercised only upon actual delivery (Article 1089; 1091).

Notes on

the original owner does not claim it within 20 days to be counted from the time that it was captured (Article 716).

3) If the animal is domestic in the sense that it was born or reared under the power of man, lacking the instinct to roam freely, the person who captured the same cannot be the owner thereof unless he will comply with the formalities prescribed by law for the acquisition of ownership of ordinary personal property (Article 719).

Abandoned movables (but not lost property):

1) If the owner of the movable is known, the finder can never become the owner because under the law, he must return it to the owner.

2) If the owner is unknown, the finder shall immediately deposit the movable with the mayor of the place where the finding took place. There shall be a public announcement of the finding within two consecutive weeks. Six months from publication having elapsed without the owner having appeared, the thing found shall be awarded to the finder, after reimbursement of the expenses (Article 719).

3) If the owner should appear in time, he shall be obliged to pay the finder as a reward, one-tenth of the amount found (Article 720).

Hidden Treasures:

Hidden treasure can be acquired by occupation only if there is no known owner thereof. This is possible only if the treasure is found in places or things without owners. If the treasure is found on a land owned by somebody, the treasure will belong to the landowner (Article 438).

2. Law

Law as a mode of acquiring ownership applies in a situation where ownership is vested independently of the other modes of acquisition. This in illustrated by the following Articles:

1. Whatever is built, planted or sown on the land of another and the improvements or repairs made thereon, belong to the owner of the land (Article 445).

2. River beds which are abandoned through the natural change in the course of the waters ipso facto belong to the owners whose lands are occupied by the new course in proportion to the area lost (Article 461).

3. Islands which through successive accumulation of alluvial deposits are formed in non-navigable and non-floatable rivers, belong to the owners of the margins or banks nearest to each of them, or to the owners of both margins if the island is in the middle of the river, in which case it shall be divided longitudinally in halves. If a single island thus formed be more distant from one margin than from the other, the owner of the nearer margin shall be the sole owner thereof (Article 465).

4. Whenever two movable things belonging to different owners are, without bad faith, united in such a way that they form a single object, the owner of the principal thing acquires the accessory, indemnifying the former owner thereof for its value (Article 466).

Notes on

5. Fruits naturally falling upon adjacent land belong to the owner of said land (Article 681).

6. Where spouses, using conjugal funds cause improvements on land owned exclusively by one of them, if the improvements cost more than the land, land becomes conjugal at time of reimbursement (Article 120, Family Code).

7. When a person who is not the owner of a thing sells or alienates and delivers it, and later the seller or grantor acquires title thereto, such title passes by operation of law to the buyer or grantee (Article 1484).

8. If the property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes (Article 1456).

9. Hidden treasure belongs to the owner of the land, building, or other property on which it is found (Article 438).

3. Intellectual Creation

By intellectual creation, the following persons acquire ownership:

1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work;

2) The composer, as to his musical composition;3) The painter, sculptor, or other artist, with respect to the product of

his art;4) The scientist or technologist or any other person with regard to his

discovery or invention (Article 721).

The author and the composer, mentioned in Nos. 1 and 2 of the preceding article, shall have the ownership of their creations even before the publication of the same. Once their works are published, their rights are governed by the Copyright laws.

The painter, sculptor or other artist shall have dominion over the product of his art even before it is copyrighted.

The scientist or technologist has the ownership of his discovery or invention even before it is patented (Article 722).

Letters and other private communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However, the court may authorize their publication or dissemination if the public good or the interest of justice so requires (Article 723).

4. Tradition

Tradition, defined as legal delivery, is a derivative mode of acquiring ownership and other real rights by virtue of which (1) they are transmitted from the patrimony of the grantor, in which they had previously existed, to that of the grantee (2) by means of a just title, (3) there being both the intention and the capacity on the part of both parties. (4) The transmission should be manifested by some act which may be physical, symbolical or legal.

Ownership is not transferred by the mere perfection of the contract but by delivery which could either be actual or constructive.

Kinds of tradition recognized by the Civil Code:

Notes on

1) Real tradition – takes place by the delivery or transfer of a thing from hand o hand if it is movable, or by certain material and possessory acts of the grantee performed in the presence and with the consent of the grantor if it is immovable.

2) Constructive tradition – takes place by the delivery of a movable or immovable thing by means of acts or signs indicative thereof.

This delivery may take place in the following manner:a. Traditio symbolica – consists in the delivery of symbol representing

the thing which is delivered, such as the key to a warehouse.

b. Traditio longa manu – consists in the grantor pointing out to the grantee the thing which is delivered which at the time must be within sight.

c. Traditio brevi manu – consists when the grantee is already in possession of the thing under a title which is not of ownership, such as when the lessee purchases from the lessor the object of the lease.

d. Traditio constitutum possessorium – takes place when the grantor alienates a thing belonging to him, but continues in possession thereof under a different title, such as that of a lessee, pledge or depositary.

3) Quasi-tradicion – it consists in the delivery of incorporeal property like rights and credits done through the (a) placing titles of ownership in the hands of the grantee or his representative; or (b) by allowing the grantee to make use of the rights with the consent of the grantor (Article 1501).

4) Tradicio por minesterio de la ley – refers to delivery which takes place by operation of law such as intestate succession where inheritance is transferred upon death of the decedent.

5. Donation

Nature of Donations

Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it (Article 725).

When a person gives to another a thing or right on account of the latter's merits or of the services rendered by him to the donor, provided they do not constitute a demandable debt, 28 or when the gift imposes upon the donee a burden which is less than the value of the thing given, there is also a donation 29

(Article 726). When considered post-mortem:

1. Transferor has retained title or ownership and control of the property;2. Transferor has reserved his right to revoke at will;

28 Meaning of “not demandable debt”: that the service rendered did not create any obligation enforceable against the donor. This is remuneratory donation.29 This is modal institution where the burden my consist of a charge that is not a condition in its technical sense, but a mere obligation imposed on the donee by the donor. The mode or burden is a mere restriction on the benefit conferred upon the donee. It does not affect the right of the donee. Example: Donation of a land to the State to make it a public park.

Notes on

3. Transfer would be void if the transferor should survive the transferee.

Tests to determine whether donation is mortis causa or inter vivos:

1. If the act is one of disposition and effective independently of the donor’s death, it is a donation inter vivos.

2. If it is one of disposition but its effectivity is dependent upon the death of the donor, it is a mortis causa donation.

3. If ownership of property is reserved to the donor during his lifetime, donation ismortis causa.

4. If what is reserved is only the usufruct, it is donation inter vivos.5. When the donor reserved the right to revoke donation, it is mortis causa.6. In donation in praesanti, the donation is effective during the lifetime of the

donor but the delivery of the possession of the property shall be after the death of the donor (Article 729). Thus it is a donation inter vivos.

7. When there is doubt on the nature of the donation, the doubt should be resolved in favor of donation inter vivos, rather than mortis causa to avoid uncertainty as to the ownership pf the property subject of the deed of donation.

Kinds

1) Simple or pure (Article 725)2) Remuneratory (Article 726, 1st portion)3) Conditional (Articles 730, 731 and 764)4) Modal (Article 726, 2nd portion)5) Onerous (Article 733)

Effect of illegal or impossible conditions

If illegal or impossible conditions are imposed on a pure or remuneratory donation, they are deemed not imposed at all (Article 727). The donation remains valid without the condition. This is the same rule followed in testamentary succession because both are gratuitous modes of acquiring ownership.

However, onerous donations are not covered by the Article. They are governed by the law on contracts where the rule is that if illegal or impossible conditions are imposed on contracts, the obligation itself becomes void (Article 1183). There is an onerous donation if a burden is imposed on the donee and the burden is equivalent to the value of the thing donated or when a donation is made in settlement or payment of a demandable debt.

Perfection

Donation is perfected, not from the time of acceptance of the donation by the donee, but from the moment the donor has known that the donee has accepted the donation (Article 734).

The acceptance must be made during the lifetime of the donor and of the donee (Article 746).

Capacity to Make and Accept Donations

1) In order that a person can make a donation three requisites are necessary:

Notes on

1) He must have the capacity to enter into contracts;2) He must be able to dispose of his property; and3) He must not be prohibited or disqualified by law from making the

donation.

He must therefore have full civil capacity.

The donor's capacity shall be determined as of the time of the making of the donation (Article 737), meaning at the time of the perfection of the donation.

2) In order that a person can accept a donation only one requisite is necessary. He must not be prohibited or disqualified by law from accepting donation.

Minors and others who cannot enter into a contract 30 may become donees but acceptance shall be done through their parents or legal representatives (Article 741).

Donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born. It is however essential that (1) the conceived and unborn child at the time of the donation must be born alive and gained personality in accordance with Article 41 of the Civil Code (if the conceived child did not become a person, the donation is null and void); and (2) the donation is favorable to the child (if the donation is not favorable to the child, as when the burdens of an onerous donation are prejudicial to the child’s interest, the donation shall not be operative).

Prohibited Donations

The following donations shall be void:

1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;

2) Those made between persons found guilty of the same criminal offense, in consideration thereof;

3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office (Article 739);

4) Those made to the priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period;

5) Those made to the relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong;

6) Those made by the ward to the guardian before final account of the guardianship have been approved, unless the guardian is a spouse, ascendant, descendant, brother or sister;

7) Those made to the attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children;

8) Those made to the physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;

9) Those made to individuals, associations and corporations not permitted by law to inherit (Article 1027);

30 The term “others” refers to those who are incapacitated by reason of the restriction in their capacity to act, like the insane, imbecile and deaf-mutes. It does not refer to those incapacitated under Article 739 of the Civil Code and Article 89 of the Family Code.

Notes on

10) Those made by the spouse to each other during the marriage, or between those persons living together as husband and wife without a valid marriage (Article 87, Family Code).

Effect of donations made to incapacitated persons 31 – the donation shall be void though simulated under the guise of another contract or through a person who is interposed.

Formalities

1) If the donation is simple or remuneratory:

(1) If movable –

a) If the value of the property is worth five thousand pesos or less, there must be simultaneous delivery of the thing or the document representing the right donated to the donee (actual or constructive delivery). Oral donation is allowed here but there is no prohibition to accept the donation in writing.

b) If the value of the personal property donated exceeds five thousand pesos - the donation and the acceptance must be made in writing, although it need not be in a public instrument. Otherwise, the donation shall be void even if there is simultaneous delivery (Article 748).

(2) If immovable –

a) It must be made in a public document (notarized), specifying therein the property donated and the value of the charges which the donee must satisfy.

b) The acceptance may be made in the same deed burden of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor.

c) If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments (Article 749).

2) If the donation is conditional:

The formalities required above are applicable to that portion which exceeds the value of the burden imposed, while the formalities prescribed for the execution of ordinary contracts are applicable to that portion which is the equivalent of such burden (Article 733).

3) If the donation is onerous:

The formalities prescribed for the execution of ordinary contracts shall have to be complied (Article 733). They need not be in public instruments because they are governed by the rules of contracts (Manalo vs. De Mesa, 20 Phil. 495; Danguilan vs. IAC, 168 SCRA 22).

31 Incapacitated persons here do not refer to minors or insane or others merely suffering from restrictions in their capacity to act under Articles 38 and 39 of the Civil Code. They refer to persons expressly declared by law to be incapacitated to receive donations like those mentioned in Article 739 of the Civil Code and Article 87 of the Family Code.

Notes on

4) If the donation is by reason of marriage

settlement: The Statute of Frauds shall have

to be complied with.

5) If the donation is mortis causa:

The formalities prescribed for the execution of wills shall have to be complied with (Article 728).

Limitations

The most fundamental limitations which are imposed by law upon the extent of property which may be donated inter vivos are:

1) The donor must reserve sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor 32 (Article 750).

2) Donations cannot comprehend future property 33 (Article 751).3) No person may give or receive, by way of donation, more than he may

give or receive by will. The donation shall be inofficious in all that it may exceed this limitation (Article 752).

Effect of inofficious donations

Donations which are inofficious shall not prevent the donations from taking effect during the life of the donor, nor shall it bar the donee from appropriating the fruits (Article 771).

However, when the donor dies, the compulsory heirs whose legitime is impaired can ask for the reduction of the donation.

Reversion

The property donated may be restored or returned to the a) donor or to Reversion (restoration or return) to the donor or to his estate) may be validly established in favor of the donor or in favor of other persons; hnor his estate; or b) in favor of other persons who must be living at the time of the donation; otherwise, the reversion is void, although the donation is still valid (Article 757). The reversion is a condition established in the deed of donation.

Revocation32 A donation where the donor did not reserve property or assets for

himself in full ownership or in usufruct sufficient for his support and all relatives legally dependent upon him, is not void. It is merely reducible to the extent that the support to himself and his relatives is impaired or prejudiced.

If the donor did not reserve enough assets to pay his creditors whom he owed before the donation, the donation is presumed to be in fraud of creditors (Article 759). The creditors may rescind the donation to the extent of their credits (Article 1387). The action is known as accion pauliana.

33 Any property which the donor could not dispose of at the time of the donation is future property.

Exception to the rule that future property cannot be donated: The exception involves marriage settlements of prospective spouses wherein they are allowed to donate properties to each other to the extent permitted by law (Article 84, Family Code).

Notes on

Special modes by which donation inter vivos may be revoked:

1) Supervening birth, survival, or adoption of a child (Article 760);2) Non-fulfillment of the condition or charge imposed (Article 764);3) Acts of ingratitude of the donee (Article 765);4) Inofficious donations (Article 771);5) When the donation is in fraud of creditors and the amount of the

judgment is equal or more than the amount of the disposable free portion (Article 1387).

Reduction

Special modes by which donation inter vivos may be reduced:1) When donor did not reserve sufficient means for his support as well as for

the support of all relatives who, at the time of the donation, are by law entitled to be supported by such donor (Article 750).

2) Supervening birth, survival or adoption of a child 34 (Article 760).3) Inofficious donation (Article 771).4) When the donation is in fraud of creditors and the amount of the

judgment is equal or more than the amount of the disposable free portion (Article 1387).

Reduction or revocation under Article 760:

Extent:

1) In the cases referred to Article 760, the donation shall be revoked or reduced insofar as it exceeds the portion that may be freely disposed of by will, taking into account the whole estate of the donor at the time of the birth, appearance or adoption of a child (Article 761).

2) Upon the revocation or reduction of the donation by the birth, appearance or adoption of a child, the property affected shall be returned or its value if the donee has sold the same.

3) If the property is mortgaged, the donor may redeem the mortgage, by paying the amount guaranteed, with a right to recover the same from the donee.

4) When the property cannot be returned, it shall be estimated at what it was worth at the time of the donation (Article 762).

How reduction takes place:

From the phraseology of Article 763, a judicial action is necessary for the reduction of the donation if any of the events mentioned in Article 760 shall happen.

Prescription:

The action shall prescribe after four years from the birth of the first child, or from his legitimation, recognition or adoption, or from the judicial declaration of filiation, or from the time information was received regarding the existence of the child believed dead.

34 The limitation in Article 760 covers only the birth of a child; the discovery that a child believed to be dead is alive; and the adoption of a minor child. The descendants of these children, if any, are not included within the coverage of the Article. Their birth, emergence or adoption will not be causes for the revocation or reduction of the donation.

Notes on

In the event that two or more causes are present, the earliest among them shall be the starting point in the reckoning of the period of prescription of the action.

Transmission of right to revoke:

This action cannot be renounced, and is transmitted, upon the death of the donor, to his legitimate and illegitimate children and descendants (Article 763).

Revocation because of non-fulfillment of condition:

The donation shall be revoked at the instance of the donor, when the donee fails to comply with any of the conditions which the former imposed upon the latter.

In this case, the property donated shall be returned to the donor, the alienations made by the donee and the mortgages imposed thereon by him being void, with the limitations established, with regard to third persons, by the Mortgage Law and the Land Registration laws.

Prescription:

This action shall prescribe after four years from the noncompliance with the condition.

Transmissibility of right to revoke:

The action to revoke may be transmitted to the heirs of the donor, and may be exercised against the donee's heirs (Article 764).

Distinctions between Articles 760 (supervening birth, survival, or adoption of a child) and Article 764 (non-fulfillment of the condition or charge imposed):

Article 760 Article 7641 Applies both to

revocation or. reduction of the donation.2 The grounds are (a) birth of

a. child; (b) appearance of a child

believed dead; and (c) subsequent adoption of a minor child.

3 Mortgages executed bythe

. donee are valid.

4 The right of action cannot be

. renounced.

Applies only to revocation.

The ground is failure to comply with the condition or conditions imposed by the donor.

Alienation or mortgages executed by the donee are void, unless, the grantee is an innocent third person.Right of action can be waived or renounced there being no prohibition.

Similarities of Articles 760 and 764:

1) In both articles, if there is revocation, the donee shall return the property if it is still in his possession. If not, he must pay the value thereof.

2) Further, the right of action to revoke is transmitted to the heirs of the donor.

Notes on

3) If the donor dies in both articles, the suit for revocation may be pursued against the heirs or assigns of the donee.

Revocation because of acts of ingratitude:

Notes on

The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases:

1) If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority;

2) If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himself, his wife or children under his authority;

3) If he unduly refuses him support when the donee is legally or morally bound to give support to the donor (Article 765).

The grounds enumerated for the revocation of donations by reason of ingratitude are limitative. They are exclusive.

The general rule is that donation are revocable by reason of the ingratitude of the donee except the following donations:

1) Mortis causa donations – because these donations take effect after death of the donor. After death, the donor could no longer initiate the revocation of the donation he executed.

2) Onerous donations – because these donations are made for some considerations, hence they can not just be revoked. Such donations are not based on pure liberality.

Note: Donation proper nuptias may be revoked based on acts of ingratitude of the donee (Article 86 [6] Family Code)

Rule as to alienations and mortgages in donations judicially revoked because of ingratitude:

1) The alienations and mortgages executed by the donee before the registration with the Registry of Deeds of the pendency of the complaint (lis pendens) will be valid.

2) All alienations and mortgages executed by the donee after the registration of the lis pendens shall be void.

3) Even without registration, if the buyer or mortgagee of the property donated knew of the complaint for revocation, the sale or mortgage will be void as he acted in bad faith. His actual knowledge of the complaint is tantamount to registration

Remedy of the owner: If the property is already transferred in the name of the buyer or mortgagee, the remedy of the donor is to recover the value of the property determined as of the time of the donation (Article 767).

Things to return after revocation of donations:1) If the revocation is due to non-compliance with any condition - both

the property and the fruits shall be returned. These fruits are those acquired after the failure to comply with the condition.

2) If the revocation is due to (a) causes stated in Article 760; (b) ingratitude; and inofficious donation - only the fruits accruing from the filing of the action shall be returned.

Prescription:This action prescribes within one year, to be counted from the time the donor had knowledge of the fact and it was possible for him to bring the action (Article 769).

Notes on

Transmissibility of right to revoke:The action granted to the donor by reason of ingratitude cannot be renounced in advance.

Being purely personal in character, as a rule this action shall not be transmitted to the heirs of the donor, if the latter did not institute the case, although he could have done so, and even if he should die before the expiration of one year; neither can this action be brought against the heir of the donee, unless upon the latter's death the complaint has been filed (Article 770).

Exceptions to the first rule (where the heirs of the donor may institute the action for revocation):

1) If the action had already been brought by the donor, but he died before it could be decided;

2) If the circumstances clearly manifest that the donor desired and intended to revoke the donation, but was prevented by sickness, insanity, or even fortuitous event from bringing the action, and he died without being able to file the corresponding complaint within the one year period of prescription;

3) If the donee killed the donor or inflicted injuries causing his death;4) If the donor died without having known the act of ingratitude; and5) If the donor had already instituted criminal proceedings against the donee

but died before he could file the corresponding civil action for revocation of donation.

Exception to the second rule (where the action may be brought against the heirs of the donee): If the complaint has already been filed upon the donee’s death (Article 770).

Reduction/revocation of Inofficious donation: Prescription:

Being similar to actions for recission of rescissible contracts (Article 1390), the period of prescription for bringing the action for revocation or reduction of the donation is four years to be counted from the death of the donor.

Persons who can ask for revocation/reduction:This kind of action is pursuable only after the donor’s death (because the inofficiousness of the donation is determinable only after death of the donor). Thus, only compulsory heirs and their heirs and successors in interest may ask for the reduction or inofficious donations.

Creditors of the donor can neither ask for the reduction nor avail themselves thereof (Article 772). This does not mean however that such creditors have no right to impugn the validity of the donation. They may do so if it was entered into in fraud of them and the action for rescission is brought within the period prescribed by law (Article 1387).

Order of reduction:If, there being two or more donations, the disposable portion is not sufficient to cover all of them, those of the more recent date shall be suppressed or reduced with regard to the excess (Article 773) . In other words, the later donations must be dropped first. The earlier donations are given preference in accordance with the principle that, (1) “priority in time gives priority in rights, and (2) the irrevocability of donations inter vivos.

As exception to Article 773, there shall be no reduction in the case of certain wedding gifts made in favor of descendants by their parents or ascendants which should not exceed one-tenth of the sum of the disposable free portion (Article 1070).

Notes on

Rules as to fruits for revoked or reduced donations:

Notes on

1) If ground is under Article 760 (supervening birth, survival or adoption of a child) – the donee shall not return the fruits except from the filing of the complaint (Article 768);

2) If ground is under Article 764 (Non-fulfillment of the condition or charge imposed) – the donee shall return not only the property but also the fruits thereof which he may have received after having failed to fulfill the condition (Article 768);

3) If ground is under 771 (Inofficious donations) – while the donor lives, the donation shall take effect, and therefore, the donee shall be entitled to the fruits (Article 771)

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de Leon Reviewer

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