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Outline Usufruct and Easement
Outline Usufruct and Easement
USUFRUCT
A.
Usufruct is a real right, temporary in character that authorizes the holder to enjoy all the
advantages derived from a normal exploitation of anothers property, according to its destination
or purpose, and imposes and obligation of restoring at the time specified, either the thing itself or
its equivalent.
B.
C.
D.
E.
Historical considerations
Characteristics of Usufruct
Usufruct distinguished from lease; from servitude
Classes of Usufruct
1.
By origin:
a. Voluntary
b. Legal Art. 321 C.C.; Effect of Art. 226, Family Code
c. Mixed
2.
3.
4.
5.
F.
Rights
a. Right to possess and enjoy the thing itself, its fruits and accessions
- Fruit consist of natural, industrial and civil fruits.
- As to hidden treasure, usufructuary isconsidered a stranger (Art. 566; 436)
- Fruits pending at the beginning of usufruct (Art. 567)
- Civil fruits (Art. 569, 588)
b. Right to lease the thing (Art. 572)
- Limitations
- Liability of usufructuary lessor (Art. 590)
- Exceptions to right of leasing the thing
c.
Right to mortgage
Right to alienate the usufruct, except in purely personal usufructs, or when title
constituting it prohibits the same.
H.
1.
2.
Obligations of Usufructuary
1. At the beginning of usufruct or before exercising the usufruct
A. to make inventory (Art. 583)
1. Requisites of Inventory
i. Immovable described
ii. Movable appraised
2. Exception to requirement of inventory
i. No one will be injured thereby (Art. 585)
ii. Title constituting usufruct excused the making of inventory
iii. Title constituting usufruct already makes an inventory
I.
J.
of
4.
5.
6.
7.
8.
9.
K.
2.
time that may elapse before a third person attains a certain age, even if the
latter dies before period expires
unless granted only in consideration of his existence Art. 606
3.
4.
Renunciation of usufruct
a.
5.
Limitations
Must be express
If made in fraud of creditors, waiver may be
rescinded by them through action under Art. 1381
b.
b.
under
6.
7.
Prescription
Cases covered: If third party acquires ownership of thing or
property in usufruct or right of ownership lost through prescription or right
of usufruct not began within prescriptive period, or if there is a tacit
abandonment or non-user of thing held in usufruct for required period.
8.
VII.
A.
Definition Easement or real servitudes is a real which burden a thing with a
presentation consisting of determinate servitudes for the exclusive enjoyment of a person who is
not the owner or of a tenement belonging to another, or it is the real right immovable by nature
i.e. land and buildings, by virtue of which the owner of the same has to abstain from doing or to
B.
1.
It is a real, i.e., it gives an action in rem or real action against any possessor of
servient estate.
2.
3.
4.
It limits the servient owners right of ownership for the benefit of the dominant
estate. Right of limited use, but no right to posses servient estate, Being an
abnormal limitation of ownership, it cannot be presumed.
5.
6.
It cannot consist in requiring the owner of the servient estate to do an act,
(servitus in faciendo consistere nequit) unless the act is accessory to a praedial servitude
(obligation propter rem)
7.
Generally, it may consist in the owner of the dominant estate demanding that the
owner of the servient estate refrain from doing something (servitus in non faciendo), or that the
latter permit that something be done over the servient property (servitus in patendo), but not the
right to demand that the owner of the servient estate do something (servitus in faciendo) except if
such obligation to a praedial sevitude (obligation propter rem).
8.
It is inherently or inseparable from estate to which they actively or passively
belong (Art. 617)
9.
It is intransmissible, i.e., it cannot be alienated separately from the tenement
affected, or benefited.
10.
11.
It has permanence, i.e., once it attaches, whether used or not, it continues and may
be used at anytime.
C.
Classification of Servitudes
1.
As to recipient of benefits:
a.
b.
Real or Praedial
Personal (Art. 614)
2.
As to origin:
a.Legal whether for public use or for the interest of private persons (Art. 634)
b.
Voluntary
3.
4.
5.
Positive
Negative (prescription start to run from service of notarial prohibition)
E.
Apparent
Non-apparent
D.
Continuous
Discontinuous
No one can have a servitude over his own property (nulli res sua servit)
A servitude cannot consist in doing (servitus in faciendo consistere nequit)
There cannot be a servitude over another servitude (Servitus servitutes esse nbon
potest)
A servitude must be exercised in a way least burdensome to the owner of the land.
A servitude must have a perpetual cause.
By title-juridical act which give rise to the servitude, i.e. law donations, contracts
or wills.
a.
If easement has been acquired but no proof of existence of easement
available, and easement is one that cannot be acquired by prescription then
1. May be cured by deed of recognition by owner of servient estate, or
2. By final judgment
3. Existence of an apparent sign considered a title (Art. 624)
2.
F.
1.
2.
To use the easement for benefit of immovable and in the manner originally
established (Art. 626)
b.
c.
renounces his
3.
4.
b.
To change the place and manner of use the easement (Art. 629, par. 2)
G.
3.
4.
5.
6.
7.
(2)
continuous easements: counted from the day an act adverse to the exercise
took place.
b.
c.
H.
Legal Easements
1.
b.
2.
1.
2.
637-648)
Those established for the use of water or easements relating to waters (Art.
1)
2)
3)
4)
5)
6)
b.
c.
d.
e.
f.
The easement of distance for certain constructions and plantings (Art. 677-681)
g.
h.