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Property Reviewer Complete
Property Reviewer Complete
Property Reviewer Complete
PROPERTY NOTES
PRELIMINARY PROVISIONS
Art 414 All things which are or may be the object of appropriation are Rights as property
considered either: “property” is sometimes used to denote the thing with respect to which
1. Immovable or real property; or legal relations between persons exist – the res over which rights
2. Movable or personal property. (particularly ownership) may be exercised – and sometimes to the rights
with respect to the thing
What’s a thing? either real or property
any object that exists and is capable of satisfying some human needs
includes both objects that are already possessed or owned and those What is a real right?
that are susceptible of appropriation Right or interest belong to a person over a specific thing
more comprehensive term (than property), as there are things which are Without a definite passive subject against whom such right may be
not susceptible of appropriation and they are not included in the concept personally enforced
of property Jus in re
The res of a real right may be
What’s property? o Personal property (as in pledge and chattel mortgage)
o Real property (easement, real mortgage)
refers to any thing which is already the object of appropriation or found o Either personal or real (as in ownership, possession, usufruct)
in the possession of man If the res of a real right is real property, the right itself is real property;
otherwise it is personal property
Requisites of property
1. Utility Classification of real rights based upon dominion
Capacity to satisfy some human wants 1. Domino pleno – powers to enjoy and to dispose are united
2. Substantivity a. Dominion, civil possession, hereditary right
Quality of having existence apart from any other thing 2. Domino menos pleno – powers to enjoy and dispose are separated
3. Appropriability a. Surface right, usufruct
Susceptibility of being possessed by man 3. Domino limitado – powers to enjoy and to dispose, though united, are
Res communes or common things are not capable of appropriation in limited
their entirety, although they may be appropriated under certain a. By a guaranty (mortgage, pledge)
conditions in a limited way, and thereby become property in law b. By a charge (easement)
o Electricity, oxygen, etc c. By a privilege (pre-emption, redemption)
Res nullius or a thing may have no owner because it has not yet been
appropriated, or because it has been lost or abandoned by the owner. it What is a personal right?
constitutes property as long as it is susceptible of being possessed for Right or power of a person
the use of man To demand from another as a definite subject
o Wild animals, hidden treasure The fulfillment of the latter’s obligation.
Things cannot be considered as property when they are not susceptible Jus in personam or jus ad rem
of appropriation because of Personal right, or right of obligation, has the following elements:
o legal impossibility (you can’t sell your body while you’re alive, 1. Active subject (person in whom the right resides)
at least not legally) or 2. Passive subject (person against whom the right is available)
o physical impossibility (you can’t own the moon, at least not yet) 3. Object or prestation or the conduct (to give, to do, or not to do)
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4. Juridical or legal tie which binds the parties to the obligation Transactions involving real property must be recorded in the Registry of
property to affect 3rd parties. Not required with personal property, except
Real Right Personal Right for chattel mortgage cases.
Definite active subject Definite active subject and a Art 415 The following are immovable property:
who has a right against all definite passive subject 1. Land, buildings, roads, and constructions of all kinds adhered to
persons generally as an the soil;
indefinite passive subject 2. Trees, plants, and growing fruits, while they are attached to the
Object is generally a Object always an incorporeal land or form an integral part of an immovable;
corporeal thing thing 3. Everything attached to an immovable in a fixed manner, in such a
Created by ‘mode’ and Created by ‘title’ way that it cannot be separated therefrom without breaking the
‘title’ material or deterioration of the object;
Extinguished by the loss Personal right survives the 4. Statues, reliefs, paintings or other objects for use or
or destruction of the thing subject matter ornamentation, placed in buildings or on lands by the owner of the
which it is exercised immovable in such a manner that it reveals the intention to attach
Directed against the Directed against a particular them permanently to the tenements;
whole world (actio in rem person (actio in personam) 5. Machinery, receptacles, instruments or implements intended by
against 3rd persons) the owner of the tenement for an industry or works which may be
carried on ina building or on a piece of land, and which tend
What’s the importance of the classification into movables or immovables? directly to meet the needs of said industry or works;
In private international law, general rule is that immovables are 6. Animal houses, pigeon-houses, beehives, fish ponds or breeding
places of similar nature, in cases their owner has placed htem or
governed by the law of the country in which they are located, whereas
preserves them with the intention to have them permanently
movables are governed by the personal law of the owner which in cases
attached to the land, and forming a permanent part of it; the
is the law of his nationality or his domicile
animals in these places are included;
In criminal law, usurpation of property can take place only with real
7. Fertilizer actually used on a piece of land;
property. On the other hand, robbery and theft can be committed only
8. Mines, quarries, and slag dumps, while the matter thereof forms
against personal property
part of the bed, and waters either running or stagnant;
In procedural law, actions concerning real property are brought in the 9. Docks and structures which, though floating, are intended by their
RTC where the property is located, whereas actions involving personal nature and object to remain at a fixed place on a river, lake, or
property are brought in the court where either the defendant or plaintiff coast;
resides. 10. Contracts for public works, and servitudes and other real rights
o Forcible entry and unlawful detainer for REAL property over immovable property.
o Replevin or manual delivery for PERSONAL
In contracts, only real property can be the subject matter of real Classes of immovable or real property (NIDA)
mortgage and antichresis, while only personal property can be the 1. By nature (cannot be carried from place to place)
subject matter of mutuum, voluntary deposit, pledge 2. By incorporation (attached to an immovable in a fixed manner to be an
In order that the donation of an immovable may be valid, it must be integral part thereof)
made in a public instrument. For movables, may be oral or in writing (if 3. By destination (placed in an immovable for the utility it gives)
more than P5000, need only to be in a private instrument) 4. By analogy (by express provision of law because it is regarded as
For prescription (4 and 8 years for movables; 10 and 30 years for united to the immovable property)
immovables)
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Mickey Ingles
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Lands, buildings, roads and constructions of all kinds Intent to attach permanently is essential – objects placed by humans
Must adhere to the soil with intention to permanent annexation lose their identity as movables
Buildings must be more or less of a permanent structure independent of
and regardless of the ownership of the land on which it is erected since Statues, reliefs, paintings, or other objects for use or ornamentation
the law makes no distinction (so possible to mortgage building even if in Immovable when:
the land of another, since it’s separate from the land o Placed on the immovable by the owner of the latter, and
Roads, whether public or private, are immovable o In such a manner that it reveals the intention to attach them
Real property treated by the parties as personal property permanently to the tenements
o A building is by itself an immovable property irrespective of Not necessarily by him personally, can be by his agent
whether or not said structure and the land on which it is adhere to If placed by a person not the owner like a lessee, the object will not
belong to the same owner attain the character of immovable unless such person acts as an agent
o A valid real estate mortgate can be constituted only on the of the owner
building erected on the land belonging to another
o The parties to a contract of chattel mortgage may, by agreement, Machinery, receptacles, instruments, or implements for an industry or works
treat as personal property that which by nature would be real Immovable only when:
property (estopped! So they can be subject to a writ of replevin o Placed by the owner of the tenement or his agent
between parties) o Industry or works must be carried on in a building or on a piece
However, the chattel mortgage is not binding on third of land
persons. o Machinery, etc must tend directly to meet the needs of the said
industry or works
Trees, plants and growing fruits Machinery which is movable in its nature only becomes immobilized
Immovable while they are: when placed in plant by the owner of the property or plant, but not when
o Attached to the land, or so placed by a tenant, a usufructuary, or any person having only a
o Form an integral part of an immovable temporary right (Davao Saw Mill v Castillo)
Once cut or uprooted, they become movable o Exception (becomes immovable):
Growing crops or fruits, or ungathered products or fruits, may be treated 1. Such person acted as the agent of the owner, or
as personal property for the purposes of attachment, execution and the 2. Lease agreement states that the machines will pass over to
chattel mortgage law (Sibal v Valdez) the lessor after the expiration of the lease agreement (US
When growing crops are sold and before they are even harvested, the Valdez case)
transaction is considered as sale of movables because it is a given that Must be essential and be principal elements of an industry or works to
they are to be gathered or harvested for delivery the business, not merely incidental to business (Mindanao Bus
Company v City Assessor)
Everything attached to an immovable in a fixed manner o Cash registers, typewriters for hotels, restaurants, theaters are
Attachment must be such that merely incidental, these businesses can continue on without
o It cannot be separated from the immovable them
o Without breaking the material, or o Machineries of breweries used in the manufacture of liquor,
o Deterioration of the object though movable by nature, are immobilized because they are
If temporarily separated, will still be regarded as immovable if there is essential to said industries
an intent to put them back (but there are different opinions to this) For purposes of taxation, it doesn’t matter who placed the machines –
the owner or mere lessee, as long as it is essential and principal
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PROPERTY NOTES
elements of an industry. The term ‘real property’ may include things Where the res of a real right is real property, the right itself is real
which should generally as personal property. It is a familiar property. So ownership is real property if the thing owned is immovable
phenomenon to see things classified as real property for purposes of o Loan is real property by analogy if secured by a real estate
taxation which on general principle might be considered personal mortgage
property. (Meralco v Central Board of Assessment Appeals – in this Where it is personal property, the right itself is personal property
case, the storage tanks were placed by Meralco, who wasn’t the owner o Exception: case of contracts for public works which are
of the land, but it was still considered immovable) considered real property
Attachment or incorporation to immovable not essential, since they
become immovable because of destination, what is essential is their
utility
CHAPTER TWO: MOVABLE PROPERTY
Animal houses, pigeon houses, beehives, fish ponds or breeding places of
similar nature Art 416 The following things are deemed to be personal property:
Considered immovable: 1. Those movables susceptible of appropriation which are not
o In case their owner has placed them or preserves them included in the preceding article;
o With the intention to have them permanently attached to the 2. Real property which by any special provision of law is considered
as personalty;
land
3. Forces of nature which are brought under control by science; and
o And forming a permanent part of it.
4. In general, all things which can be transported from place to place
o The animals in these places are included. without impairment of the real property to which they are fixed.
Must permanently form part of the land and so intended by the owner
Art 417 The following are also considered as personal property:
Fertilizers actually used on a piece of land 1. Obligations and actions which have for their object movables or
Immovable when demandable sums;
o Actually used on a piece of land 2. Shares of stock of agricultural, commercial and industrial entities,
Fertilizers kept in a barn are not immovable although they may have real estate.
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6. Shares of stock
7. Other incorporeal personal property Property is presumed to be State property in the absence of any showing to
a. Intellectual property such as copyrights, patents, etc the contrary. (Regalian Doctrine)
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There must be a law or proclamation officially classifying them Does not include all lands of government ownership but only so much of
such. said lands as are thrown open to private appropriation and settlement
4. Lands that disappeared into the sea by homestead law
5. Canals constructed on private lands of private ownership but the owner
loses his proprietary right over said canal through prescription by Government lands
allowing the public to use it for transportation Broader term
6. Foreshore lands when the sea moved toward an estate and the tide Includes not only public lands, but also…
invade it, the invaded property becomes foreshore and passes to the 1. other lands of the government already reserved or devoted to
public realm public use,
- Foreshore land is the strip of land that lies between the high and 2. or subject to private rights,
low water marks 3. and patrimonial lands
7. Lot on which stairways were built for the use of the people as
passageway to the highway Alienation of public agricultural land
Unless pubic land is shown to have been reclassified and alienated by
Roads refer to those constructed by the national government the State to a private person, it remains part of the inalienable public
Canals constructed by private persons over private lands are of private domain
ownership All other lands are presumed to belong to the State
Roadstead is a place less sheltered or enclosed than a harbor where
ships may ride at anchor Art 421 All other property of the State, which is not of the character
stated in the preceding article, is patrimonial property.
Properties of public dominion are outside of the commerce of man. Again,
their purpose is to serve the citizens. Patrimonial property
They can not be the object of appropriation either by the State or private Property of the State owned by it in its private or proprietary character
persons. Not for public use, service or development of the national
So… wealth
1. Cannot be sold, leased or be the subject of contracts May be acquired by private individuals or juridical persons through
2. Cannot be acquired by prescription, not even by municipalities as prescription; can be the object of an ordinary contract
against the State
3. Cannot be encumbered, attached, or be subject to levy and sold at Art 422 Property of public dominion, when no longer intended for
public auction. public use or for public service, shall form part of the patrimonial
4. Cannot be burdened with easements property of the State.
5. Cannot be registered under the land registration law and be the subject
of a Torrens title Property of the National Government
Inclusion of public dominion property does not confer title on the Not self-executing
registrant There must be a formal declaration by the executive (exercised by the
President) or possibly legislative department that the property is no
Public lands v Government lands longer needed for public use or for public service before the same can
Public lands be classified as patrimonial property
Lands of the public domain A positive act declaring land as alienable and disposable is required
1. Presidential proclamation or executive order
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2. Administrative action possession has been enjoyed during the period necessary to establish a
3. Investigation reports of Bureau of Lands investigators presumption of ownership.
4. Legislative act or a statute (Sec of DENR v Yap) If the property is owned by the municipality in its public and
Classification of public lands is the exclusive prerogative of the governmental capacity, the property is public and Congress has
Executive Department – courts have no authority (Sec of DENR v Yap) absolute control over it.
Abandonment cannot be inferred from non-use. (Roponggi case) If it is owned in its private or proprietary capacity, then it is patrimonial
Two requisites for judicial confirmation of imperfect or incomplete title, and Congress has no control over it. (page 63, de Leon)
under CA 141
1. open, continuous, exclusive and notorious possession and Case doctrines:
occupation of the subject land by himself or through his The use of subdivision roads by the general public does not strip it of its
predecessors-in-interest under a bona fide cliam of ownership private character.
since time immemorial or from June 12, 1945 Transfer of ownership from the subdivision owner-developer to the local
2. classification of the land as alienable and disposable land of government is not automatic but requires a positive act from the owner-
the public domain (Sec of DENR v Yap) developer before the city or municipality can acquire dominion over the
Unclassified land? Considered as forest land (Sec of DENR v Yap) subdivision roads. Until and unless the roads are donated, ownership
remains with the owner-developer. (Woodridge School, Inc v ARB
Property of Political Subdivisions Construction Co, Inc)
For provinces, cities and municipalities, the conversion must be
authorized by law Art 425 Property of private ownership, besides the patrimonial property
Municipal corporation has discretionary power to withdraw a street from of the State, provinces, cities, and municipalities, consists of all
public use and sell it. (Cebu Oxygen v Becilles) property belonging to private persons, either individually or
collectively.
Art 423 The property of provinces, cities, and municipalities is divided
into property for public use and patrimonial property. Private property
1. Belonging to private persons, either individually or collectively
Art 424 Property for public use, in the provinces, cities, and 2. Belonging to the State and any of its subdivisions which are patrimonial
municipalities, consist of the provincial roads, city streets, municipal in nature
streets, the squares, fountains, public waters, promenades, and public
works for public service paid for by said provinces, cities or There is nothing that will prohibit churches from alienating things
municipalities. classified into ‘sacred, religious, and holy.’
All other property possessed by any of them is patrimonial and shall Art 426 Whenever by provision of law, or an individual declaration, the
be governed by this Code, without prejudice to the provisions of expression “immovable things or property” or “movable things or
special laws. property” is used, it shall be deemed to include, respectively, the
things enumerated in Chapter 1 and Chapter 2.
Property of Political Subdivisions Whenever the word “muebles” or “furniture,” is used alone, it
Note that the articles speak of property for public use, indicating that shall not be deemed to include money, credits, commercial securities,
properties for public service are patrimonial. (ambulance of the local stocks and bonds, jewelry, scientific or aristic collections, books,
government) medals, arms, clothing, horses or carriages and their accessories,
Political subdivisions cannot register as their own any part of the public grains, liquids and merchandise, or other thing which do no have as
domain, unless it is first shown that a grant thereof has been made or their principal object the furnishing or ornamenting of a building,
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right of the owner to consume a thing by its use – the use that i. Instituted by person deprived of possession
extinguishes ii. Unlawful deprivation of the possession of any land or
building, by force, intimidation, threat, strategy or
Right to dispose or alienate or jus disponendi stealth
either totally (sale or donation) or partially (pledge, mortgage, etc) iii. Filed within 1 year from date of actual entry (but for
includes right not to dispose cases of stealth and strategy, from date of knowledge
duty of vendor to transfer ownership of actual knowledge)
o vendor must be the owner or authorized to sell thing iv. At the MTC where property is located
o sufficient that he be the owner at the time of the delivery of the
thing sold Unlawful detainer
only the absolute owner can pledge or mortgage one’s property Requisites:
i. Instituted by landlord, vendor, vendee or other person
Right to recover possession and/or ownership or jus vindicandi against who the possession of any land or building is
unlawfully withheld
true owner must resort to judicial process for the recovery of the
ii. Unlawful possession after the expiration or
property
termination of the right to hold possession (by virtue
he cannot take the law into his own hands
of contract, etc)
iii. Filed within 1 year from date of last demand to vacate
Actions available to recover possession and/or ownership
iv. at the MTC where property is located
For unlawful detainer, it is essential that the plaintiff’s supposed acts of
1. Recovery of personal property: Remedy of Replevin or manual delivery
tolerance must have been present right from the start of the possession
of personal property
which is later sought to be recovered (Valdez, jr v CA)
Requisites (Rule 60, Rules of Court):
Only issue involved in both is mere physical or material possession
Applicant must show by his own affidavit or that of some other person
who personally knows the facts: (possession de facto), not juridical or civil possession (possession de
i. That the applicant is the owner of the property jure)
claimed, particularly describing it, OR is entitled to the Plaintiff need only to allege and prove prior possession de facto and
possession thereof undue deprivation thereof
ii. That the property is wrongfully detained by the It’s a quieting process
adverse party, alleging the cause of detention thereof Summary in nature (to solve the problem quickly and to protect the
according to the best of his knowledge, information rights of the possessor)
and belief Difference between the two is the time when possession became
Applicant has burden of proving his ownership or right of unlawful – forcible entry: time of entry; unlawful detainer: possession at
possession over the property in question first was legal, then became illegal
Both a principal remedy (regain possession) and a provisional If complaint fails to aver facts constitutive of forcible entry or unlawful
remedy (allow the plaintiff to retain the thing wrongfully detainer as when it does not state how entry was effected or how and
detained by another pendente lite) when the dispossession started, the remedy should either be accion
2. Recovery of real property: publiciana or an accion reinvindicatoria (Valdez, jr v CA)
Forcible entry and unlawful detainer (accion interdictal) o Must be apparent in the face of the complaint (Sarmiento v
Forcible entry CA)
Requisites: Jurisdictional facts – what does a plaintiff have to allege?
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General rule: Court should not by means of a preliminary injunction Where the actual possessor of the property who is admittedly the
transfer property in litigation from the possession of one party to owner, seeks protection from repeated or further intrusions into his
another. property.
In order that a preliminary injunction may be granted at any time after o Even if it turns out that he isn’t the owner, he may still avail of
the commencement of the action and before judgment: the equitable remedy of injunction to protect his possession.
Requisites: When there is a clear finding of right of ownership and possession of a
i. there must exist a clear and positive right over the land in favor of the party who claims the subject property in possession
property in question which should be judicially protected of another is the undisputed owner as where the property is covered by
through the writ; and a Torrens title pointing to the party as the owner. (Of course, check the
ii. the acts against which the injunction is to be directed are issuance of the title if it was in bad faith)
violative of such right When urgency, expediency and necessity require immediate
What if there is someone actually possessing the property sought to possession as where material and irreparable injury will be done which
recover? cannot be compensated by damages.
o Person not ordinarily allowed to avail of remedy of preliminary
preventive or mandatory injunction but must bring the Writ of possession as a remedy
necessary action for the recovery of possession. Writ of possession is an order whereby a sheriff is commanded to place
Injunctive relief will not be granted to take property out of the a person in possession of a real or personal property, such as when a
possession or control of one party and place it in that of another whose property is extrajudicially foreclosed.
title… Improper to eject another from possession, unless sought in connection
o Has not been clearly established, or with a:
o Who did not have such possession or control at the inception 1. Land registration proceeding
of the case 2. Foreclosure of mortgage, provided, that no third person has
Proper function is to maintain the status quo intervened (PNB v CA – in this case, a third person was
Injunction cannot be a substitute for other suits for recovery of occupying the lot subject to the writ. The SC held that the an
possession, hence, its denial will not bar the institution of the more ex-parte petition for issuance of a possessory writ is not the
appropriate remedy judicial process referred to in Art 433);
Why? Well, a writ of injunction is an equitable relief; determination of 3. Execution sales
title is a legal remedy – that’s why
Limitations on the right of ownership
When can injunction be allowed? Limited by
In actions for forcible entry, the dispossessed plaintiff may file, within ten 1. by the State’s power to tax, police power, and eminent domain
days from filing of the complaint, a motion for a writ of preliminary 2. those imposed by law such as legal easement
mandatory injunction to restore him in possession. 3. those imposed by the owner himself, such as voluntary
o The court MAY grant In order to prevent the defendant from easement
4. those imposed by the grantor of the property on the grantee
committing further acts of dispossession during the pendency
5. those arising from conflicts of private rights which take place in
of the case
accession continua
o Issue of ownership may not be put in issue
6. prohibition against the acquisition of private lands by aliens
Ejectment cases where the appeal is taken, the lessor is given the same
remedy granted above. Art 429 The owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal thereof. For this
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purpose, he may use such force as ay be reasonably necessary to ii. imminent danger or threatening damage must be much greater
repel or prevent an actual or threatened unlawful physical invasion or than the damage arising to the owner of the property
usurpation of his property.
Art 433 Actual possession under claim of ownership raises a
Principle of self-help disputable presumption of ownership. The true owner must resort to
Requisites: judicial process for the recovery of the property.
i. Person defending must be the owner or lawful possessor
ii. Use of reasonable force Applies to both immovable and movable property
iii. Only be exercised at the time of an actual or threatened Requisites to raise the disputable presumption of ownership:
dispossession (no delay) i. Actual (physical or material) possession of the property
iv. Actual or threatened physical invasion or usurpation which is ii. Possession must be under claim of ownership
unlawful
Judicial process contemplated
Read with Art 19 of the Civil Code. Means ejectment suit or reinvidicatory action
Ex-parte petition for issuance of a possessory writ is not a judicial
Art 430 Every owner may enclose or fence his land or tenements by process, as it is non-litigious (PNB v CA)
means of walls, ditches, live or dead hedges, or by any other means
without detriment to servitudes constituted thereon. Art 434 In an action to recover, the property must be identified, and the
plaintiff must rely on the strength of his title and not on the weakness
Right to enclose or fence of the defendant’s claim.
Limited by existing servitudes imposed on the land or tenement
Requisites:
Art 431 The owner of a thing cannot make use thereof in such manner i. Person who claims that he has a better right to the property must
as to injure the rights of a third person. satisfactorily prove both ownership and identity
ii. Burden of proof lies on the party who substantially asserts the
Art 432 The owner of a thing has no right to prohibit the interference of affirmative of an issue
another with the same, if the interference is necessary to avert an iii. Reliance on strength of evidence and not upon the weakness of the
imminent danger and the threatened damage, compared to the damage opposing party
arising to the owner from the from the interference, is much greater.
The owner may demand from the person benefited indemnity for the Party who desires to recover must fix the identity of the land claimed by
damage to him. describing the location, area and boundaries thereof
o If a party fails to identify sufficiently and satisfactorily the land
State of necessity which he claims as his own, his action must necessarily fail
General rule: a person cannot interfere with the right of ownership of another o While the identity of the property must be established, it is not
Exception: State of necessity, but of course, civil indemnification can be necessary for the plaintiff to establish the precise location and
asked for extent of the lands claimed or occupied by the defendant
General rule: where there is a conflict between the area and boundaries
Requisites: of a land, the latter prevails.
i. interference is necessary to avert an imminent danger and the o An area delimited by boundaries properly identifies a parcel of
threatened damage to actor or a third person (but the damage
land
must be proportionate and reasonable)
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Exception: where the boundaries relied upon do not identify the iii. Owner paid just compensation
land beyond doubt iv. Requirement of due process of law must be observed
o In such cases where there appears to be an overlapping of
boundaries, the actual size of the property gains importance. Should the requirements be not first complied with, restore the property to
his possession.
Equiponderance of evidence? Rule for defendant. But can be lost by estoppel or acquiescence
Evidence to prove ownership Art 436 When any property is condemned or seized by competent
1. A Torrens title authority in the interest of health, safety or security, the owner thereof
2. Title from the Spanish government shall not be entitled to compensation, unless he can show that such
3. Patent duly registered in the Registry of Property condemnation or seizure is unjustified.
4. Deed of sale
5. Operating a business for nine years in defendant’s own name, without Condemnation or seizure of property in exercise of police power
protest of plaintiff Relates to use and enjoyment not ownership of property
6. Occupation of a building for a long time without payment of rent No taking of property involved
7. Letter in which defendant recognized the ownership of the property by Persons affected not entitled to financial compensation
the plaintiff (estoppel)
8. Open, continuous, exclusive, adverse and notorious actual possession Art 437 The owner of a parcel of land is the owner of its surface and of
and occupation of parcels of land everything under it, and he can construct thereon any works or make
any plantations and excavations which he may deem proper, without
Indicia of claim of ownership detriment to servitudes and subject to special laws and ordinances. He
1. Tax declarations and tax receipts – only prima facie evidence of cannot complain of the reasonable requirements of aerial navigation.
ownership or possession; but they are good indicia of possession in the
concept of owner Surface rights of a landowner
Right of the owner of a parcel of land to construct any works or make any
Conclusiveness of certificates of title plantations and excavations on his land is subject to: (SLERRt)
Indicates true and legal ownership of a private land and should be 1. Special laws
accorded great weight as against tax declarations 2. Local ordinances
o but is not conclusive if the land had already been previously 3. Existing servitudes or easements
registered 4. Reasonable requirements of aerial navigation
5. Rights of third persons
Art 435 No person shall be deprived of the property except by
competent authority and for public use and always upon payment of Limitations imposed by special laws
just compensation. Includes the regalian doctrine
Should this requirement be not first complied with, the courts shall Ownership of said land does not give him the right to extract or utilize
protect, and in a proper case, restore the owner in his possession. the said minerals without the permission of the State to which said
minerals belong
Power of eminent domain o For the loss sustained by such owner, he is entitled to just
Requisites: compensation under mining laws or expropriation proceedings
i. Taking must be done by competent authority
ii. Must be for public use
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Art 438 Hidden treasure belongs to the owner of the land, building, or improvements upon a thing the principal for the latter’s
other property on which it is found. includes building, planting and embellishment, better use or
Nevertheless, when the discovery is made on the property of sowing completion
another, or of the state or any of its sub-divisions, and by chance, one- alluvion, avulsion, change of necessary to principal thing
half thereof shall be allowed to the finder. If the finder is a trespasser, course of rivers, formation of
eh shall not be entitled to any share of the treasure. islands example: key of a house, bow of a
If the things found be of interest to science or the arts, the not necessary to the principal violin
State may acquire them at their just price, which shall be divided in thing
conformity with the rule stated.
Art 439 By treasure is understood, for legal purposes, any hidden and Accession, not a mode of acquiring ownership
unknown deposit of money, jewelry, or other precious objects, the Merely a consequence of ownership
lawful ownership of which does not appear. Exercise of the right of ownership
Since the law itself gives the right, accession may, IN A SENSE, be
Requisites:
considered as a mode of acquiring property under the law
i. Deposit of money, jewelry or other precious objects
ii. Hidden and unknown
Kinds of accession
iii. Lawful ownership of which does not appear
1. Accession discreta
Extension of the right of ownership of a person to the products of a
thing which belongs to such a person
CHAPTER TWO: RIGHT OF ACCESSION Includes natural, industrial, and civil fruits (Art 441)
GENERAL PROVISIONS 2. Accession continua
SECTION I – RIGHT OF ACCESSION WITH RESPECT TO Extension of the right of ownership to that which is incorporated or
WHAT IS PRODUCED BY PROPERTY attached to a thing which belongs to such person
May take place:
Art 440 The ownership of property gives the right by accession to With respect to real property
everything which is produced thereby, or which is incorporated or Accession industrial (building, planting, sowing); or
attached thereto, either naturally or artificially. Accession natural (alluvion, avulsion, change of river
course, and formation of islands)
Accession defined With respect to personal property
Accession is the right of the owner of a thing, real or personal, to become Conjunction (attachment, engraftment)
the owner of everything which is: Commixtion or confusion
1. produced thereby, Specification
2. incorporated
3. attached thereto, Art 441 To the owner belongs:
either naturally or artificially. o The natural fruits;
o The industrial fruits;
Accession Accessory
o The civil fruits.
fruits of, additions to, things joined to, included with Art 441 refers to accession discreta
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1. Rents of buildings
Right of owner to the fruits 2. Prices of leases (rents) of lands and other property (including movables)
General rule: All fruits belong to the owner of a thing. 3. Amount of perpetual or life annuities or other similar income
Exception: A person, other than the owner of a property, owns the fruits
thereof: Art 443 He who receives the fruits has the obligation to pay the
1. possession in good faith by another (possessor entitled to the fruits expenses made by a third person in their production, gathering, and
received before possession is legally interrupted) preservation.
2. usufruct (usufructuary entitled to all the fruits of the property on usufruct)
3. lease of rural lands (lessee gets fruits, lessor gets rents) Art 443 applies when:
4. pledge (pledgee gets fruits, etc but with the obligation to compensate 1. Owner of property recovers the property from a possessor and the
what he receives with those which are owing him) possessor has not yet received the fruits although they may have
5. antichresis (creditor acquires the fruits of his debtor’s immovable, but already been gathered or harvested; or
with the obligation to apply them first to the interest and then to the 2. The possessor has already received the fruits but is ordered to
principal amount of the credit) return the same to the owner
Art 442 Natural fruits are the spontaneous products of the soil, and the In both cases, the owner is obliged to reimburse the previous possessor for
young and other products of animals. the expenses incurred by the latter.
Industrial fruits are those produced by lands of any kind
through cultivation or labor. What if the possessor is in bad faith?
Civil fruits are the rents of buildings, the price of leases of The owner cannot excuse himself from his obligation by alleging bad
lands and other property and the amount of perpetual or life annuities faith on the part of the possessor because the law makes no distinction
or other similar income.
When does good faith/bad faith come into play?
Natural fruits When the goods have yet to be gathered.
Two kinds: Under 449, a BPS in bad faith has no right of reimbursement for
1. Spontaneous products of the soil (not through human cultivation or expenses, nor to the fruits. Only for the necessary expenses of
labor), and preservation of land.
2. Young and other products of animals (chicks, eggs, wool, milk)
What if the expenses exceed the fruits?
The second kind is considered as natural fruits whatever care or The owner must pay the expenses just the same because the law
management, scientific or otherwise, may have been given by man makes no distinction
since the law makes no distinction. But keep in mind that the owner only pays for the expenses for
Puppies, while cute, bred by a professional breeder are still production, gathering and preservation – not improvement.
natural fruits
Art 444 Only such as are manifest or born are considered as natural or
Industrial fruits industrial fruits.
Those products which are borne through the cultivation or labor of With respect to animals, it is sufficient that they are in the
humans womb of the mother, although unborn.
Usually cultivated for a purpose
When natural fruits and industrial fruits deemed to exist
Civil fruits
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1. Plants which produce only one crop and then perish (rice, corn, sugar): Exception: Art 120 of the Family Code
from the time the seedlings appear from the ground
2. Plants and trees which live for years and give periodic fruits (mangoes, Definitions:
oranges, epols): deemed existing until they actually appear on the 1. Building – generic term for all architectural work with roof built for the
plants or trees purpose of being used as man’s dwelling, or for offices, clubs, theaters,
3. Animals: beginning of the maximum ordinary period of gestation (when etc.
there can be no doubt that they are already in the womb of the mum) 2. Repairs – putting of something back into the condition in which it was
4. Fowls: the fact of appearance of chicks should retroact to the beginning originally in (not an improvement)
of incubation
Art 445 Whatever is built, planted or sown on the land of another and
the improvements or repairs made thereon, belong to the owner of the
SECTION II – RIGHT OF ACCESSION WITH RESPECT TO land, subject to the provisions of the following articles.
IMMOVABLE PROPERTY Owner of land must be known for this article to apply
Section 2 deals with one kind of accession continua, that of immovables. It Art 446 All works, sowing, and planting are presumed made by the
comprehends accession industrial (445-456) and accession natural (457- owner and at his expense, unless the contrary is proved.
465).
Certain basic principles must be kept in mind: Disputable presumptions as to improvements:
1. Accession follows the principal 1. The works, sowing, and planting were made by the owner. and
Owner of the principal acquires the ownership of the accession 2. They were made at the owner’s expense.
2. Incorporation or union must be intimate
Removal or separation cannot be effected without substantial injury He who alleges the contrary of these presumptions has the burden of proof.
to either or both
3. Effect of good faith and bad faith Art 447 The owner of the land who makes thereon, personally or
Good faith exonerates a person from punitive liability but bad faith through another, paintings, constructions or works with the materials
may give rise to dire consequences of another, shall pay their value; and if he acted in bad faith, he shall
General rule: person who acts in bad faith has no rights also be obliged to the reparation of damages. The owner of the
Exception: person who is in good faith or bad faith is entitled to materials shall have the right to remove them only incase he can do so
reimbursement for necessary expenses or preservation (452) as without injury to the work constructed, or without the plantings,
well as expenses for cultivation, gathering and preservation (443) constructions or works being destroyed. However, if the landowner
4. Effect of both parties in bad faith acted in bad faith, the owner of the materials may remove them in any
Bad faith of one neutralizes bad faith of the other event, with a right to be indemnified for damages.
Neither party may demand as a matter of right the removal of the
improvements against the will of the other for such right is available Applies when the owner of the property uses the materials of another.
only to a party in good faith where the other is in bad faith
5. Unjust enrichment Landowner-Builder/Planter/Sower Owner of Materials
Good faith Good faith
General rule on accession industrial LO-BPS can acquire the materials Entitled to full payment for value of
Art 445 and 446 give the general rule that the accessory follows the provided there is full payment materials, or
principal. May remove materials provided
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there is no substantial injury to work Art 451 In case of the two preceding articles, the landowner is entitled
done to damages from the builder, planter or sower.
Bad faith Good faith
Acquire the materials provided he Entitled to full payment for value of Art 452 The builder, planter or sower in bad faith is entitled to
pays full payment plus damages materials plus damages, or reimbursement for the necessary expenses of preservation of the land.
Remove materials even if there will
be substantial injury to work done Art 453 If there was bad faith, not only on the part of the person who
plus damages built, planted or sowed on the land of another, but also on the part of
Good faith Bad faith the owner of such land, the rights of one and the other shall be the
Acquire materials without paying for Loses materials without indemnity same as though both had acted in bad faith.
the value thereof and entitled to and will be liable for damages due to It is understood that there is bad faith on the part of the
damages due to defects or inferior defects or inferior quality of materials landowner whenever the act was done with his knowledge and without
quality of materials opposition on his part.
Bad faith Bad faith
Same as when both are in good Art 454 When the landowner acted in bad faith and the builder, planter
faith. or sower proceeded in good faith, the provisions of article 447 shall
apply.
Art 448 The owner of the land on which anything has been built, sown What’s good faith?
or planted in good faith, shall have the right to appropriate as his own Consists in the:
the works, sowing or planting, after payment of the indemnity provided 1. Honest belief that the land he is building, planting, sowing on is his or
for in articles 546 and 548, or to oblige the one who built or planted to that by some title, he has a right to build, plant, sow on it; and
pay the price of the land, and the one who sowed, the proper rent. 2. Ignorance of any defect or flaw in his title
However, the builder or planter cannot be obliged to buy the land if its
value is considerably more than that that of the building or trees. In Abrenica definition: State of mind at the time he built the improvements
such case, he shall pay reasonable rent, if the owner of the land does (Pleasantville case)
not choose to appropriate the building or trees after proper indemnity.
The parties shall agree upon the terms of the lease and in case of Usually, it applies to building, planting, sowing in the concept of ownership.
disagreement, the court shall fix the terms thereof. But the Supreme Court has expanded its coverage to
1. Cases wherein a builder had constructed improvements with the
Art 449 He who builds, plants or sows in bad faith on the land of consent of the owner
another, loses what is built, planted or sown without right to indemnity. 2. Builders in good faith who relied on the consent of another whom they
have mistakenly believed to be the owner of the land
Art 450 The owner of the land on which anything has been built, 3. To children who built improvement on a land belonging to their parents
planted or sown in bad faith may demand the demolition of the work, or with their parents consent (Macasaet case)
that the planting or sowing be removed, in order to replace things in
their former condition at the expense of the person who built, planted
or sowed; or he may compel the builder or planter to pay the price of Landowner Builder/planter/sower
the land, and the sower the proper rent. Good faith Good faith
Option 1: Purchase whatever has Receive indemnity for necessary,
been built, planted, or sown after useful and luxurious expenses
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paying indemnity which includes (depends on landowner) with right of Note: Rental period of sower is only
necessary, useful and luxurious retention over the land without until he gathers what he sowed. He
expenses (if he wishes to obligation to pay rent until full doesn’t have the remedy of removal.
appropriate the luxurious expenses) payment of indemnity (Sarmiento)
Good faith Bad Faith
Prohibited from offsetting or Remove useful improvement Option 1: To acquire whatever has Loses whatever has been built,
compensating the necessary and provided it does not cause any injury been built, planted or sown without planted or sown without indemnity
useful expense with the fruits (part of right of retention) paying indemnity except necessary and liable to pay damages
received by the BP in good faith expenses for preservation of land
(Nuguid case) If LO does not appropriate luxurious and luxurious expenses (should LO Entitled to reimbursement for
improvements, BPS can remove the want to acquire luxurious necessary expenses for preservation
same provided there is no injury to improvement) plus damages of land but no right to retention (and
the principal thing (land or building) also 443)
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whether or not it will cause injury 2. Improvement constructed on one’s own land subsequently sold (person
and will be entitled to damages constructs a house on his own land and later sold land to another)
But, the provision on indemnity in 448 may be applied by analogy
If LO acquires whatever has been where the owner-builder later lost ownership of the land by virtue of
built, planted or sown, BPS must be a court judgment, considering that the primary intent of 448 is to
indemnified the value thereof plus avoid a state of forced co-ownership especially where the parties in
damages the main agree that 448 and 546 are applicable and indemnity for
the improvements may be paid although they differ as to basis of
If LO does not acquire, BPS cannot the indemnity - whut?! (Pecson v CA)
insist on purchasing land 3. Builder is a belligerent occupant
4. Constructions not in the nature of buildings
5. Property of public domain
Bad Faith Bad Faith
Both in good faith Art 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
Necessary expenses use of them has no property with which to pay.
Made for the preservation of the thing, or This provision shall not apply if the owner makes use of the
Those which seek to prevent the waste, deterioration, or loss of the right granted by Article 450. If the owner of the materials, plants or
thing seeds has been paid by the builder, planter or sower, the latter may
demand from the land-owner the value of the materials and labor.
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there will be no injury what has been built, planted or sown and inferior quality of
on building or trees and planted or sown plus liable for damages materials
will have material lien damages
against BPS for Bad Faith Good Faith Good Faith
payment of materials To acquire what has To receive indemnity TO receive indemnity
Good Faith Good Faith Bad Faith been built, planted or from LO plus damages of materials principally
Same Whatever is the choice sown by paying from BPS and in case
of LO, the OM: indemnity plus liable to BPS is insolvent,
1. loses the materials in pay damages subsidiarily from LO
favor of the BPS and Bad Faith Good Faith Bad Faith
2. will have no right to Same Same No right to receive
receive indemnity from indemnity for value of
BPS nor LO materials from BPS nor
Good Faith Bad Faith Bad Faith LO (who ends up
Option 1: To acquire BPS loses what has (Since both BPS and owning buildings or
whatever has been been built, planted or OM are in bad faith, trees)
built, planted or sown sown plus liable for treat them both as if If OM in bad faith, he doesn’t get anything (unless BPS in bad faith as
without paying damages but is entitled they are in good faith.) well)
indemnity except for to be indemnified for
necessary expenses necessary expenses Whatever is the choice Art 456 In the cases regulated in the preceding articles, good faith does
for preservation of land and luxurious expenses of the LO, OM has right not necessarily exclude negligence, which gives right to damages
and luxurious expenses (should LO want to to receive indemnity for under article 2176.
(should LO want to acquire luxurious value of materials from
acquire luxurious improvements) and has BPS only (LO has no Art 457 To the owners of the lands adjoining the banks of rivers belong
improvements) plus no right of removal subsidiary liability for the accretion which they gradually receive from the effects of the
damages even if removal will not value of materials current of the waters.
cause damage because OM is
considered in good Article treats of alluvion, a form of accession natural.
faith only insofar as
BPS is concerned) Alluvion is…
Accretion which the banks of rivers gradually receive from the effects of
OM has no right to the current of the waters and
remove materials even Which belong to the owners of lands adjoining the said banks
if there will be no injury
or damage Riparian owners are owners of lands adjoining the banks of rivers.
Option 2: To oblige BP To buy the land or pay Get indemnification Littoral owners are the owners of lands bordering the shore of the sea or
to buy the land or S to proper rent and liable from the BPS lake or other tidal waters
pay proper rent plus to pay damages to LO
damages Distinguished from accretion
Option 3: To oblige BP To demolish or remove Liable to pay damages Alluvion is applied to the deposit of soil or to the soil itself
to demolish or remove what has been built, due to defects or
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Accretion is the act or process by which a riparian land gradually and In case of diminution of area
imperceptively receives addition made by the water to which the land is Registration does not protect the riparian owner against diminution of
contiguous the area of his land through gradual changes in the course of the
adjoining stream
Requisites Accretions which the banks of rivers may gradually receive from the
i. Deposit or accumulation of soil or sediment must be gradual and effect of the current become the property of the owners of the banks
imperceptive In case of increase of area
ii. Accretion results from the effects or action of the current of waters of Although alluvion is automatically owned by the riparian owner, it does
the river (exclusive work of nature) not automatically become registered land, just because the lot which
iii. Land where accretion takes place must be adjacent to the bank of a receives such accretion is covered by a Torrens title
river So, alluvial deposit acquired by a riparian owner of registered land by
accretion may be subjected to acquisition through prescription by a third
Instances when alluvion DOES NOT take place person, by failure of such owner to register such accretion within the
1. Accretion because of sudden and forceful action like that of flooding prescribed period
2. Accretion caused by human intervention (would still be part of public
domain – Vda de Nazerno v CA) Art 458 The owners of estates adjoining ponds or lagoons do not
3. Accretion caused by action of Manila Bay (since Manila Bay is not a acquire the land left dry by the natural decrease of the waters, or lost
river, it’s part of the sea) that inundated by them in extraordinary floods.
4. Accretion on the bank of a lake (like Laguna de Bay) have been held to Refers only to ponds and lagoons
belong to the owners of the lands to which they are added o No application when the estate adjoins a creek, stream, river or
lake
Elements of river and their ownership o For purposes of alluvion, lakes are of the same category of
A river is a compound concept consisting of three elements: creeks, streams and rivers
1. Running waters
Pond
2. The bed
o a body of stagnant water without an outlet
3. The banks
o larger than a puddle and smaller than a lake
Since a river is a compound concept, it should have only one nature – it Lagoon
should either be totally public or completely private. And since rivers, o small lake, ordinarily of fresh water,
whether navigable or not, are of public dominion (Art 420), it is implicit o and not very deep, fed by floods
that all the three component elements be the same nature also. o the hollow bed of which is bounded by elevations of land
Lake
Reasons for alluvion o Body of water formed in depressions of the earth
1. Compensate the riparian owner for the danger of loss that he o Ordinarily fresh water
suffers because of the location of his land o Coming from rivers, brooks or springs
2. Compensate him for the encumbrances and various kinds of o Connected with the sea by them
easements to which his property is subject o Hence, Laguna de Bay is a lake
3. Promote the interests of agriculture for the riparian owner it in the
best position to utilize the accretion
Art 459 Whenever the current of a river, creek or torrent segregates
Accretions affecting lands registered under the Torrens system from an estate on its bank a known portion of land and transfers it to
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another estate, the owner of the land to which the segregated portion o Continuous movement of a body of water, often horizontal, in a
belonged retains the ownership of it, provided that he removes the certain direction
same within two years. River
o Natural surface stream of water of considerable volume
Avulsion is… o Permanent or seasonal flow
Also known as force of river o Emptying into an ocean, lake or other body of water
Defined as the accretion which takes place when the current of a river, Creek
creek or torrent segregates from an estate on its bank a known portion o Small islet extending further into land
and transfers it to another estate o Natural stream of water normally smaller than and ofter
In which case, the owner of the estate to which the segregated portion tributary to a river
belonged, retains the ownership thereof
Torrent
Also refers to the segregation or transfer itself of a known portion of land o Violent stream of water
to another by the force of the current
o A flooded river or one suddenly raised by a heavy rain and
descending a steep incline
Alluvion Avulsion
o Raging flood or rushing stream of water
Deposit of soil is gradual Deposit is sudden or abrupt
Deposit of soil belongs to the The owner of the property from What if a portion of land is transferred, but not by a current of water, but by a
owner of the property where the which a part was detached landslide?
same was deposited retains the ownership thereof
You can apply Art 459, by analogy.
The soil cannot be identified Detached portion can be
identified Remove it within two years
The former owner preservers his ownership of the segregated portion
Where there had been accretions to the land adjacent to the bank of a provided he removes (not merely claims) the same within the period of 2
river, the riparian owner does not lose the ownership of such accretions years
even if they are separated by avulsion from the land by the sudden It would seem that his failure to do so would have the effect of
change of the course of the river automatically transferring ownership over it to the owner of the other
estate
Requisites
Law doesn’t make a distinction between private land and land of the
i. Segregation and transfer must be caused by the current of a river,
public domain
creek or torrent
Why two years?
ii. Segregation and transfer must be sudden or abrupt
o Segregated portion is usually very small and it is thus useless
iii. Portion of land transported must be known or identifiable
to the original owner
Even if the detached portion be placed on top of another land instead of o Similar to uprooted trees (but there, 6 months)
being adjoined to it, Art 459 still applies as long as it can be identified as o If the owner of the separated portion retains his ownership
coming form the estate from which it was detached without any qualification, he would have a right to enter the
If only soil is removed by water and spread over another’s land such other estate at any time, which wouldn’t be convenient to the
that no known portion can be said to exist which can be removed, there other estate
is no avulsion o After a long period, the detached potion may become
Current permanently attached to the new land so it’ll be hard to remove
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Art 460 Trees uprooted and carried away by the current of the waters formal act on his part. (Remember that rivers are property of public
belong to the owner of the land upon which they may be cast, if the dominion)
owners do not claim them within 6 months. If such owners claim them, o The change in the course of the river does not ipso facto result
they shall pay the expenses incurred in gathering them or putting them in the abandonment of the river but must be the reason for its
in a safe place. abandonment, in other words, the river is abandoned because
of or through the natural change of the water
Applies only to uprooted trees The owners of land adjoining the old bed are given the preferential right
If a known portion of land with trees standing thereon is carried away by to acquire the old bed by paying the value thereof
the current to another land, Art 459 governs o The indemnification shall not exceed the value of the area
The original owner claiming the trees is liable to pay the expenses occupied by the new bed (in case of disagreement, bring the
incurred by the owner of the land upon which they have been cast in case to court.)
gathering them or putting them in a safe place
Claim must be done in 6 months Requisites
o If not, the trees will belong to the owner of the land where the i. There must be a natural change in the course of the waters of the
trees have been cast to river
o Six months is a condition precedent and not a prescription ii. Change must be abrupt or sudden
period
o After a claim is made within 6 months an action may be NB: Law speaks of change of river course. If a river simply dries up or
brought within the period provided by law for prescription of disappears, the bed left dry will belong to public dominion (Art 502)
movables
NB: For trees, you need only CLAIM within the period. For land (Art 459), Art 462 Whenever a river, changing its course by natural causes, opens
you have to REMOVE them within 2 years a new bed through a private estate, this bed shall become of public
dominion.
Art 461 River beds which are abandoned through the natural change in NB: This article talks of the new riverbed. Art 461 talked about the old
the course of the waters ipso facto belong to the owners whose lands riverbed.
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 The bed of a public river or stream is of public ownership (Art 502)
right to acquire the same by paying the value thereof, which value shall If the river changes its course and opens a new bed, this bed becomes
not exceed the value of the area occupied by the new bed. of public dominion even if its on private property
Just as the old had bed had been of public dominion before the
River beds abandoned through natural change in the course of waters abandonment, the new riverbed shall likewise be of public dominion
They belong to owners occupied by the new course of the river No distinction whether a river is navigable or floatable or not
o In proportion to the area lost (if only one owner lost a portion of
his land, the entire old bed should belong to him. If more than Art 463 Whenever a current of a river divides itself into branches,
two, then in proportion to the area lost) leaving a piece of land or part thereof isolated, the owner of the land
Abandoned? The words may be construed to mean that where there is retains his ownership. He also retains it if a portion of land is separated
abandonment by the government over the old bed, the owner of the from the estate by the current.
invaded land automatically acquires ownership of the same without any
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NB: This article does not refer to the formation of islands through accretion portion which corresponds to the length of that portion of his
(that’s in Art 464 and 465). property along the margin of the river
d. If a new island is formed between an existing island and an
This article refers to the formation of an island caused by a river dividing opposite bank, the owner of the older island is considered a
itself into branches resulting in: riparian owner together with the owner of the land adjoining the
1. The isolation of a piece of land or part thereof, or bank for the purpose of determining ownership of the island
2. The separation of a portion of land from an estate by the current (see
Art 459) o He must of course register the land, else it be subject to
adverse possession of another
The owner preserves his ownership of the isolated or separated
property Navigable river
o One which forms in its ordinary condition by itself or by uniting
Art 464 Islands which may be formed on the seas within the with other waters a continuous highway over which commerce
jurisdiction of the Philippines, on lakes, and on navigable or floatable is or may be carried on
rivers belong to the State. o Test: whether it is navigable in fact, if it is used or susceptible
of being used as a highway of commerce, for trade and travel
Art 465 Islands which through successive accumulation of alluvial in the usual and ordinary modes
deposits are formed in non-navigable and non-floatable rivers, belong o A navigable river is one that is “floatable”, that is, a river
to the owners of the margins or banks nearest to each of them, or to admitting floats
the owners of both margins if the island is in the middle of the river, in i. Hence, a floatable stream is a navigable stream
which case it shall be divided longitudinally in halves. If a single island (Macatangay v Secretary of Public Works – in this
thus formed be more distant from one margin than from the other, the case, natangay si Macatangay. Hehehe!)
owner of the nearer margin shall be the sole owner thereof.
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3. They are so inseparable that their separation would impair their nature
or result in substantial injury to either The special rule regarding paintings, etc is based on the
consideration that what is painted is of greater value that the board
In determining the right of the parties in adjunction, regard is had only to or canvas inasmuch as the exceptions mentioned are specified, its
the things joined and not to the persons. provision can not be applied by analogy to cases of adjunction of
But where there is a mere change of form or value which does not similar nature which are deemed excluded. (See Art 467 and 468)
destroy the identity of the component parts, the original owners may
demand their separation (Art 469) Art 469 Whenever the things united can be separated without injury,
their respective owners may demand their separation.
Kinds of adjunction Nevertheless, in case the thing united for the use,
1. inclusion or engraftment (such as when a diamond is set on a gold ring) embellishment or perfect of the other, is much more precious than the
2. soldering or soldadura (when led is united or fused to an object made of principal thing, the owner of the former may demand its separation,
lead) even though the thing to which is has been incorporated may suffer
a. ferrumincaion (if both the accessory and principal are of the some injury.
same metal)
b. plumbatura (if they are of different metals) When separation of things united are allowed
3. writing or escritua (when a person writes on paper belonging to another) 1. Whenever the separation can be done without injury
4. painting or pintura (when a person pains on canvas of another) 2. When the accessory much more precious, the owner of the accessory
5. weaving or tejido (when threads belonging to different owners are used may demand its separation even though the principal thing may suffer
in making textile) some injury
Art 467 The principal thing, as between two things incorporated, is Owner who made or caused the union or incorporation shall bear
deemed to be that to which the other has been united as an ornament, the expenses for separation
or for its use or perfection. 3. When principal acted in bad faith, owner of accessory may separate
even if the principal thing be destroyed
Art 468 If it cannot be determined by the rule given in the preceding
article which of the two things incorporated is the principal one, the Art 470 Whenever the owner of the accessory thing has made the
thing of the greater value shall be so considered, and as between two incorporation in bad faith, he shall lose the thing incorporated and
things of equal value, that of greater volume. shall have the obligation to indemnify the owner of the principal thing
In painting and sculpture, writings, printed matter, engraving for the damages he may have suffered.
and lithographs, the board, metal, stone, canvas, paper or parchment If the one who has acted in bad faith is the owner of the
shall be deemed the accessory thing. principal thing, the owner of the accessory thing shall have a right to
choose between the former paying him its value or that the thing
Tests to determine the principal in adjunction belonging to him be separated, even though for this purpose it be
In the order of application, the principal is that: necessary to destroy the principal thing; and in both cases,
1. To which the other (accessory) has been united as an ornament or furthermore, there shall be indemnity for damages.
for its use or perfection. (rule of importance and purpose) If either one of the owners has made the incorporation with the
2. Of greater value, if they are of unequal values; knowledge and without the objection of the other, their respective
3. Of greater volume, if they are of an equal value; rights shall be determined as though both acted in good faith.
4. That of greater merits taking into consideration all the pertinent
legal provisions (see Art 475) applicable as well as the comparative ADJUNCTION (accessory follows principal)
merits, utility and volume of their respective things Rights of Owner of Principal Rights of Owner of Accessory
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Good Faith Good Faith If by the one who caused the mixture or confusion acted in
Acquires the accessory, Loses the accessory but has a right bad faith, he shall lose the thing belonging to him thus mixed or
indemnifying the owner of the value to indemnity for the value of the confused, besides being obliged to pay indemnity for the damages
thereof accessory caused to the owner of the thing with which his own was mixed
Except: When value of accessory is Has a right to demand separation Definition of mixture
much more precious than the even if it causes injury to the Takes place when two or more things belonging to different owners are
principal thing (469) principal thing (469) mixed or combined
With the respective identities of the component parts destroyed or lost
Except: When still separable, may May demand separation (469( Two kinds
demand separation (no adjunction o Commixtion (for solids)
anyway) o Confusion (for liquids)
Good faith Bad faith
Acquires the accessory and has a Loses the thing and has liability for Rules governing mixture (co-ownership)
right to indemnity for damages he damages 1. If the mixture by will of owners, their rights shall be governed by their
may have suffered stipulations. In the absence of any stipulation, each owner acquires a
Bad faith Good faith right or interest in the mixture in proportion to the value of his materials
Pays for the accessory plus Option 1: Demand the owner of the as in co-ownership.
damages principal to pay for the value of the MIXTURE
accessory plus damages Owner who caused mixture Owner of the thing mixed into
Good faith or by chance Good faith or by chance
Separate thing even if it is destroyed Option 2: Demand separation even if
plus pay damages it causes the destruction of the Each owner acquires a right Each owner acquires a right
principal thing plus damages proportional to the part belonging to proportional to the part belonging to
Bad Faith Bad Faith him, bearing in mind the value of the him, bearing in mind the value of the
As if both are in good faith things mixed or confused things mixed or confused
Bad faith Good faith
Art 471 Whenever the owner of the material employed without his Loses the thing mixed or confused Acquires the thing mixed plus
consent has a right to indemnity, he may demand that this consist in plus liable to pay damages entitled to damages
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. Art 474 One who in good faith employs the material of another in whole
Art 472 if by the will of their owners two things of the same or different or in part in order to make thing of a different kind, shall appropriate
kinds are mixed, or if the mixture occurs by chance, and in the latter the thing thus transformed as his own, indemnifying the owner of the
case the things are not separable without injury, each owner shall material for its value.
acquire a right proportional to the part belonging to him, bearing in If the material is more precious than the transformed thing or
mind the value of things mixed or confused. is of more value, its owner, may, at his option, appropriate the new
Art 473 if by the will of only one owner, but in good faith, two things of thing to himself, after first paying indemnity for the value of the thing,
the same or different kinds are mixed or confused, the rights of the or demand indemnity for the material.
owners shall be determined by the provisions of the preceding article. If in the making of the thing bad faith intervened, the owner of
the material shall have the right to appropriate the work to himself
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without paying anything to the maker, or to demand of the latter that he considerably higher than the
indemnify him for the value of the material and the damages he may material. The owner of the material
have suffered. However, the owner of the material cannot appropriate cannot appropriate the work.
the work in case the value of the latter, for artistic or scientific reasons,
is considerably more than that of the material. Option 2: Demand indemnity for Must pay indemnity and damages.
material plus damages.
Definition of specification
Takes place whenever the work of a person is done on the material of
another Art 475 In the preceding articles, sentimental value shall be duly
Such material, in a consequence of the work itself, undergoing a appreciated.
transformation.
Imparting of a new form to the material belong to another, or making of Adjunction, mixture and specification distinguished
the material of another into a different kind Adjunction Mixture Specification
o Flour made into bread, grapes into wine, clay into bricks, love At least two things At least two things May be only one ting
into hate (joke. Putek, ang boring ng Property. If you’ve made it whose form is changed
this far, good for you!) Component parts retain Things mixed may or Component parts retain
or preserve their nature may not retain their or preserve their nature
SPECIFICATION (accessory follows principal) respective original
Owner of material Builder nature
Good faith Good faith Accessory follows Co-ownership results Accessory follows
Right to indemnification for the value Shall appropriate the thing thus principal principal
of the material. transformed as his own,
indemnifying the owner of the
material for its value. CHAPTER THREE: QUIETING OF TITLE
Except: Material more precious than ART 476 Whenever there is a cloud on title to real property or any
transformed thing. interest therein, by reason of any instrument, record, claim,
encumbrance or proceeding which is apparently valid or effective but it
Option 1: Appropriate the new thing To be indemnified. is in truth and in fact invalid, ineffective, voidable or unenforceable,
to himself, indemnifying the builder and may be prejudicial to said title, an action may be brought to
for his work. remove such clod or to quiet the title.
An action may also be brought to prevent a cloud from being
Option 2: Demand indemnity for the Appropriate the same after cast upon title to real property or any interest therein.
material. indemnity for material.
Good faith Bad faith Title to real property refers to that upon which ownership is based.
Option 1: Appropriate the work to Loses his work. No right to Plaintiff in action for quiet title dies, should it be dismissed? No. It’s a quasi
himself without paying indemnity. indemnity. in rem suit.
(Damages also?) Defendant’s defenses: prescription, lack of jurisdiction of court
Except: When for artistic or scientific Pay for the materials and damages. Cloud on title
reasons, the thing has a value
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Semblance of title, either legal or equitable, or a claim or a right in real Task of court is to determine the respective rights of the parties so that
property, appearing in some legal from, but which is in fact, invalid or the complainant and those claiming under him may forever free from
which would be inequitable to enforce any danger of hostile claim (Rumarate case)
Requisites Affords prompt and adequate method to remove cloud on title
i. Instrument, record, claim, encumbrance or proceeding which is Promotes improvement of property
apparently valid or effective,
ii. Such instrument is in truth and in fact, invalid, ineffective, To what kind of property does this action apply?
voidable or unenforceable, or has been extinguished or Real property, which may refer to either the title or only an interest
terminated, or has been barred by extinctive prescription therein (usufruct, servitude, lease record, etc)
iii. Such instrument may be prejudicial to said title Not to personal property
o But, they may be applied to personalty under exceptional
Action to quiet title circumstances with respect to certain types of property which
Requisites: partake of the nature of real property (vessels, motor
i. Plaintiff or complainant has a legal or an equitable title to, or vehicles, certificates of stocks), or
interest in the real property subject of the action treated to some extent as realty because of
ii. The deed, claim or proceeding claimed to be casting cloud on registration requirements for ownership or
his title must be shown to be, in fact, invalid or inoperative transactions affecting them (chattel mortgage)
despite its prima facie appearance of validity or legal efficacy
Prescriptibility of action
Action to quiet title Action to remove a cloud on title 1. If plaintiff in possession, it does not prescribe. An action to quiet title
Purpose to put an end to Removal of a possible brought by a person who is in possession of the property is
troublesome litigation in respect foundation for a future hostile imprescriptible.
to the property involved claim 2. If plaintiff not in possession, he must invoke his remedy within the
Remedial action involving a Preventive action to prevent a proper prescriptive period. Ten years if in good faith, 30 years if in bad
present adverse claim future cloud on the title faith.
1st paragraph of Art 476 2nd paragraph of Art 476
Art 477 The plaintiff must have legal or equitable title to, or interest in
An action to quiet title includes an action to remove a cloud of title. the real property which is the subject matter of the action. He need not
be in possession of said property.
Nature of action
Quasi in rem Title and possession of the plaintiff
Judgment is conclusive only between the parties Plaintiff must have a legal or equitable title or an interest in the real
The res, the subject-matter of the controversy, is within the court’s property which is the subject matter of the action
jurisdiction, and it is because of that circumstance that the court is able o Legal title may consist in full ownership or in naked ownership
to adjudicate o If plaintiff has beneficial interest in the property (such as a
Not essential that the court acquire jurisdiction of the person of the beneficiary in a trust), he has beneficial title
defendant o Interest in property is any interest short of ownership, like the
interest of a mortgagee or a usufructuary
Benefits from allowing actions If plaintiff is not in possession, he may also bring one of the three
actions mentioned in addition to the action to quiet title
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In order to afford complete relief to the parties in action to quiet title, the
court, without thereby converting the action from quieting of title into CHAPTER FOUR: RUINOUS BUILDINGS AN TREES IN
accion publiciana, may determine,: DANGER OF FALLING
o Incidentally the ownership,
o The stats of the legal title to the property
Art 482 If a building, wall, column or any other construction is in
o Right to the possession thereof
danger of falling, the owner shall be obliged to demolish it or to
execute the necessary work in order to prevent it from falling.
Art 478 There may also be an action to quiet title or remove a cloud If the proprietor does not comply with this obligation, the
therefrom when the contract, instrument or other obligation has been administrative authorities may order the demolition of the structure at
extinguished or has terminated, or has been barred by extinctive the expense of the owner, or take measures to insure public safety.
prescription.
If a building, wall, column or other construction is in danger of falling, the
Two cases when action allowed owner has the duty to either:
An action to quiet title may be maintained: o Demolish it, or
1. When the contract, instrument, or other obligation has been
o Repair it.
extinguished or terminated (right of the defendant has been
extinguished by the happening of a condition subsequent) In case he doesn’t, the administrative authorities, in the exercise of
2. When the contract, instrument or other obligation has been barred by police power, may order the demolition of the structure, or take
extinctive prescription (as where plaintiff has possess in bad faith the measures to insure public safety
property publicly, adversely and uninterruptedly for 30 years) Recognition of the limitation of the owner’s rights in the use and
enjoyment of his property
Art 479 The plaintiff must return to the defendant all benefits he may o Sic utere tuo ut alienum non laedas. – Use your property as
have received from the latter, or reimburse him for expenses that may not to injure others
have redounded to the plaintiff’s benefit.
Art 483 Whenever a large tree threatens to fall in such a way as to
Obligation of plaintiff to return or reimburse cause damage to the land or tenement of another or to travelers over a
The purpose of the action to quiet title is solely public or private road, the owner of the tree shall be obliged to fell and
o to remove the cloud on the plaintiff’s title or remove it; and should he not do so, it shall be done at his expense by
o to prevent a cloud from being cast upon his title, and not to order of the administrative authorities.
obtain any other benefit
Plaintiff is bound to return to the defendant all the benefits he may have Owner of the tree may be compelled to fell and remove a threatening
received form the latter or reimburse him for the expenses incurred on tree, and should he fail to do so, the work shall be ordered done at his
the property which has redounded to the plaintiff’s benefit (less of expenses by the administrative authorities
course, any damage which he suffered by reason of the defendant)
TITLE III – CO-OWNERSHIP
Art 480 The principles of the general law on the quieting of title are
hereby adopted insofar as they are not in conflict with this Code. ART 484 There is co-ownership whenever the ownership of an
undivided thing or right belongs to different person.
Art 481 The procedure for quieting of title or the removal of a cloud In default of contracts, or of special provisions, co-ownership
therefrom shall be governed by such rules of court as the Supreme shall be governed by the provisions of this Title.
Court shall promulgate.
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What is co-ownership? Example: When northern half of land belongs to buyer, southern
As a manifestation of ownership, it is that form of ownership which half belongs to seller
exists whenever an undivided thing or right belongs to different persons
As a right, it has been defined as the right of common dominion which Sources of co-ownership
two or more persons have in a spiritual or ideal part of a thing which is 1. Contract (two persons share in paying purchase price)
not materially or physically divided 2. Law (easement in party walls, absolute community of property)
3. Succession (in the case of heirs of undivided property)
Requisites 4. Testamentary disposition or donation inter vivos (testator prohibits
i. Plurality of owners partition of the property)
ii. Object of ownership must be an undivided thing or right 5. Fortuitous event or by chance (commixtion or confusion by accident)
iii. Each co-owners’ right must be limited only to his ideal share of the 6. Occupancy (two folks catch a wild animal in the jungles of Borneo)
physical whole
Co-ownership Joint Ownership
Characteristics of co-ownership Each co-owner, together with No abstract share ownership by
1. Two or more co-owners the others, is the owner of the the co-owners, the right of the
2. Single object which is not materially or physically divided, over which whole undivided thing or right joint tenants being inseparable
and his ideals share of the whole, each co-owner exercises ownership, but at the same time of his own
together with the co-owners ideal part thereof
3. No mutual representation by the co-owners Can dispose of his share Not permitted to dispose of his
4. Exists for the common enjoyment of the co-owners without the consent of the other share or interest in the property
5. No distinct legal personality without the consent of others
6. Governed first by the contract of parties Survivors are subrogated to the If joint tenant dies, his
a. otherwise, by special legal provisions rights of the deceased ownership dies with him
b. in default of such provisions, by this Title immediately upon the death of
the latter
Ownership of a co-owner Disability of a co-owner does Disability of a joint tenant inures
Ownership of whole and over his aliquot share not inure to the benefit of the to the benefit of the others for
Each owner is at the same time absolute owner of his own ideal but others purposes of prescription
definite share which determines his rights and obligations in the co-
ownership Co-ownership Partnership
Every co-owner, jointly with the other co-owners, is the owner May be created without Can be created only by a
i. of the whole, and over the whole he exercises the right of formalities of a contract contract, express or implied
dominion, and No juridical or legal personality Distinct juridical personality
ii. he is at the same time the owner of an aliquot portion which is Purpose is collective enjoyment Purpose to obtain profits
truly abstract because until division is effected such portion is of the thing
not concretely determined
Co-owner can dispose of his Unless authorized, a partner
share without the consent of the cannot dispose and substitute
Disputed portions owned already concretely determined
others, transferee automatically another partner in his place
No co-ownership when the different portions owned by different people
becoming a co-owner Partner can generally bind the
are already concretely determined and separately identifiable, even if
No mutual representation partnership
not yet technically described
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Distribution of profits must be Distribution of profits is subject purpose of the co-ownership may be changed by agreement, express
proportional to the respective to stipulation of the partners or implied.
interests of the co-owners
Not dissolved by death Dissolved by death or incapacity Limitations on co-owner’s right to use
Agreement to keep the thing 1. Must be n accordance with the purpose for which the co-ownership is
undivided for a period of more There may be agreement as to intended
than ten years is void (although any definite term without limit Resort to the agreement
it may be extended by a new set by law In absence thereof, it is to be understood that the thing is
agreement) intended for that use for which it is ordinarily adapted
according to its nature
Co-ownership Easement Co-owners are free to change the purpose of the co-ownership
Each co-owner has a right of Precisely a limitation on the right by agreement, express or implied
dominion over the whole of dominion o However, mere tolerance does not change purpose
property and over his undivided 2. Must not injure the interest of the co-ownership
share 3. Must not prevent the co-owners from using it according to their rights
Right of ownership rests solely Right of dominion is in favor of
on each and every co-owner one or more persons and over Art 487 Anyone of the co-owners may bring an action in ejectment.
over a single object two or more different things
Action in ejectment
Case doctrines Any co-owner can bring, in behalf of himself, and the other co-owners
The property regime of parties to a bigamous marriage is governed by an action in ejectment affecting the co-ownership
Art 148 of the Family Code which provides that all properties acquired o Forcible entry, unlawful detainer, recovery of possession,
by the parties out of their actual joint contribution of money, property, or recovery of ownership
industry shall be governed by the rules on co-ownership. If there is no May be brought against strangers and even against a co-owner
contribution from either or both of the spouses, there can be no co- o Only purpose of an action against a co-owner who takes
ownership. (Acre v Yuttikki - aw yeah, what a name.) exclusive possession and asserts exclusive ownership of the
property is to obtain recognition of the co-ownership
Art 485 The share of the co-owners, in the benefits as well as in the An adverse decision in the action is not necessarily res judicata with
charges, shall be proportional to their respective interests. Any respect to the other co-owners not being parties to the action
stipulation in a contract to the contrary shall be void. o Exception: where it appears that the action was instituted in
The portions belonging to the co-owners in the co-ownership their behalf with their express or implied consent, or
shall be presumed equal, unless the contrary is proved. o The rights in the co-ownership are derived from the title of their
predecessors-in-interest found by the court to be invalid or
Presumption: Proportional to their respective interests inexistent
Does not apply to co-ownership based on will or by donation.
Art 488 Each co-owner shall have a right to compel the other co-
Art 486 Each co-owner may use the thing owned in common, provided owners to contribute to the expenses of preservation of the thing or
he does so in accordance with the purpose for which it is intended and right owned in common and to the taxes. Anyone of the latter may
in such a way as not to injure the interest of the co-ownership or exempt himself from this obligation by renouncing so much of his
prevent the other co-owners from using it according to their rights. The undivided interest as may be equivalent to his share of the expenses
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and taxes. No such waiver shall be made if it is prejudicial to the co- o Co-owner must, if practicable, first notify the co-owners of the
ownership. necessity for the repairs
If impracticable or where the repairs are very urgent
Obligation to contribute to expenses of preservation and to taxes and the other co-owners are in remote places and
The expenses of preservation of the thing or right owned in common cannot be reached, the notice may be dispensed with
and the amount of taxes due thereon should be borne by all o The lack of notice, even if practicable, would not exempt the
A co-owner who advanced them has a right to demand reimbursement other co-owners from the obligation to contribute to the
from the others in proportion to their respective interests in the co- expenses. But the co-owner who advanced them has the
ownership burden of proving that they were properly incurred.
Refers only to necessary expenses
Useful expenses are not covered, unless such were incurred with the Art 490 Whenever the different stories of a house belong to different
consent of the others owners, if the titles of ownership do not specify the terms under which
Expenses for pure luxury are not also refundable, not being for they should contribute to the necessary expenses and there exists no
preservation agreement on the subject, the following rules:
1. the main and party walls, the roofs and the other things used
Renunciation by a co-owner of his share in the co-ownership in common, shall be preserved at the expense of all the
Renunciation need not be total owners in proportion to the value of the story belonging to
The co-owner need only renounce or give up in favor of the other co- each;
owners so much of this undivided share as may be equivalent to his 2. Each owner shall bear the cost of maintaining the floor of his
share of expenses and taxes story; the floor of the entrance, front door, common yard and
Example? sanitary works common to all shall be maintained at the
expense of all the owners pro rata;
Art 489 Repairs for preservation may be made at the will of one of one 3. The stairs from the entrance to the first story shall be
of the co-owners, but he must, if practicable, first notify his co-owners maintained at the expense of all the owners pro rata, with the
of the necessity for such repairs. Expenses to improve or embellish the exception of the owner of the ground floor; the stairs from the
thing shall be decided upon by a majority as determined in Article 492. first to the second story shall be preserved at the expense of
all, except the owner of the ground floor and the owner of the
Necessity for agreement on expenses first story; and so on successively.
Acts or decisions affecting the ting owned in common may be grouped
into Applies if the titles of ownership do not specify the terms thereof or
o Acts of preservation (Art 489) there exists no agreement on the subject
o Acts of administration (Art 492)
Art 491 None of the co-owners shall without the consent of the others,
o Acts of alteration (Art 491)
make alterations in the thing owned in common, even though benefits
Repairs for preservation for all would result therefrom. However, if the withholding of the
o A co-owner has the right to compel the other co-owners to consent by one or more ot the co-owners is clearly prejudicial to the
contribute to the expenses of preservation, maintenance or common interest, the courts may afford adequate relief.
necessary repairs of the thing or right owned in common, and
to the taxes, even if incurred without the knowledge of other Necessity of consent of other co-owners for alterations
co-owners or prior notice to them, in view of the nature of Alteration contemplates a change made by a co-owner in the thing
expenses owned in common which involves:
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o Change of the thing from the state or essence in which the They contemplate acts or decisions for the common benefit of all the co-
others believe it should remain; or owners and not for the benefit of only one or some of them
o Withdrawal of the thing from the use to which they wish it to be While alteration is more or less permanent, acts of administration have
intended; or transitory effects and have for their purpose the preservation,
o Any other transformation which prejudices the condition or preparation and better enjoyment of the thing and which do not affect its
substance of the thing or its enjoyment by the others. essence, nature or substance
Alteration is not limited to material or physical changes NB: Majority rule prevails.
o Includes any act of ownership by which a real right or o The majority consists of co-owners who represent the
encumbrance is imposed on the common property, such as controlling interest in the object of the co-ownership.
servitude, registered lease, lease of real property for more than o The majority likewise decides the expenses to improve or
one year, mortgage, pledge embellish the common property. Notice must be given to the
NB: Unanimous consent of all the co-owners, not a mere majority, is minority unless it is impracticable to do so.
necessary even if the alteration would prove beneficial because If there is no majority or the resolution of the majority is seriously
alteration is an act of ownership and not of mere administration prejudicial to the interests of the other co-owners, the court, at the
o Consent may be expressed or implied instance of an interested party, may take such measures as it may
Liability for alteration: the co-owner who makes such alteration without deem proper
the express or implied consent of the other co-owners acts in bad faith o Examples of prejudicial acts:
because he does so as if he were the sole owner Resolution calls for a substantial change of the thing
o He loses what he has spent Authorizes leases, loans, and other contracts without
o Obliged to demolish the improvements done, and the necessary security
o Liable to pay for loses and damages the community property or Upholds the continued employment of an
the other co-owners may have suffered administrator who is guilt of fraud or negligence in his
management
Art 492 For the administration and better enjoyment of the thing owned
in common, the resolutions of the majority of the co-owners shall be Art 493 Each co-owner shall have the full ownership of his part and of
binding. the fruits and benefits pertaining thereto, and he may therefore
There shall be no majority unless the resolution is approved alienate, assign or mortgage it, and even substitute another person in
by the co-owners who represent the controlling interest in the object of its enjoyment, except when personal rights are involved. But the effect
the co-ownership. of the alienation or the mortgage, with respect to the co-owners shall
Should there be no majority, or should the resolution of the be limited to the portion which may be allotted to him in the division
majority be seriously prejudicial to those interested in the property upon the termination of the co-ownership.
owned in common, the court, at the instance of an interested party,
shall order such measures as it may deem proper, including the Rights of each co-owner
appointment of an administrator. 1. Full ownership of his part, that is, his undivided interest or share in the
Whenever a part of the thing belongs exclusively to one of the common property
co-owners, and the remainder is owned in common, the preceding 2. Full ownership of the fruits and benefits pertaining thereto
provisions shall apply only to the part owned in common. 3. May alienate, assign or mortgage his ideal interest or share
independently of the other co-owners
Rules for acts of administration and better enjoyment 4. May even substitute another person in the enjoyment of his part, except
Acts of management of the common property when personal rights are involved
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A co-owner is given the legal right of redemption in case the shares of o The sale affects only his proportionate or abstract share in the
all the other co-owners or any of them are sold to a third person (not a property owned in common, subject to the results of the
co-owner)1 partition, but not those of the other co-owners who did not
o Harry, Ron and Neville were co-owners of a parcel of land. consent to the sale
Harry sold his share to Draco. Ron and Neville may redeem o There may be a valid sale of a definite portion of the property
the share from Angel. If only Ron exercises the right, he shall co-owned even before actual partition where the rule of
pay only a reasonable price. Subject to reimbursement from estoppel apples (co-owners didn’t object when seller pointed a
Neville, as it is a preservation expense. portion out to a potential buyer)
o If they both want to exercise the right, they may only do so in Whole property
proportion to the share they may respectively have in the thing o Even if a co-owner sells the whole property as his own, or
owned in common. without the consent of ther other co-owners, the sale is valid
only insofar as his ideal quota is concerned unless the sale is
A co-owner may exempt himself from the obligation to contribute to the authorized by the other co-owners
expenses of preservation of the thing or right owned in common and to o A sale of the entire property by one co-owner will only transfer
the taxes by renouncing so much of his interest as may be equivalent to the rights of said co-owner to the buyer, thereby making the
his share of the expenses and taxes buyer a co-owner of the property
o Recourse of co-owners when their consent was not secured:
Sale or mortgage of common property action for partition
Undivided portion
o A co-owner is free to dispose of his pro indiviso share and of Where personal rights are involved
the fruits and other benefits arising from that share but the A co-owner may substitute another in the enjoyment of his undivided
transferee does not acquire an specific or determinate physical interest in the co-ownership except when personal rights are involved
portion of the whole, his right being limited to the portion which Personal right – a right which cannot be transferred because it affects
may be allotted to him upon the partition of the property the personal relations of the co-owners with one another
Definite portion
o The fact that a deed of sale appears to convey a definite or Art 494 No co-owner shall be obliged to remain in the co-ownership.
segregated portion of the property under co-ownership that is Each co-owner may demand at any time the partition of the thing
still undivided does not per se render the sale a nullity owned in common, insofar as his share is concerned.
o The sale is valid subject only to the condition that the interests Nevertheless, an agreement to keep the thing undivided for a
acquired by the vendee must be limited to the part that may be certain period of time, not exceeding ten years, shall be valid. This
assigned to the co-owner-vendor in the division upon the terms may be extended by a new agreement.
termination of the co-ownership A donor or testator may prohibit partition for a period which
shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by
1 law.
Art 1620 A co-owner of a thing may exercise the right of redemption in case the No prescription shall run in favor of co-owner or co-heir
shares of all the other co-owners or of any of them, are sold to a third person. If the against his co-owners or co-heirs so long as he expressly or impliedly
price of the alienation is grossly excessive, the redepmtioner shall pay only a recognizes the co-ownership.
reasonable one.
Should two or more co-owners desire to exercise the right of redemption they may
only do so in proportion to the share they may respectively have in the thing owned in Termination of co-ownership
common. Co-ownership may be terminated in different ways, as follows
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1. Consolidation or merger in only one of the co-owners of all the 4. When partition would render the thing unserviceable for the use for
interests of the others; which it is intended
2. Destruction or loss of the property co-owned 5. When another co-owner has possessed the property as exclusive owner
3. Acquisitive prescription in favor of a third person, or a co-owner and for a period sufficient to acquire it by prescription
who repudiates the co-ownership
4. Partition, judicial or extrajudicial Prescription in favor of or against a co-owner
5. Termination of the period agreed upon or imposed by the donor or Prescription does not run in favor or against a co-owner or co-heir
testator, or of the period allowed by law Co-ownership is a form of a trust, with each owner being a trustee for
6. Sale by the co-owners of the thing to a third person and the each other.
distribution of its proceeds among them Where, however, a co-owner or co-heir repudiates the co-ownership,
prescription begins to run from the time of repudiation (requisites)
Right of a co-owner to demand partition i. He had performed unequivocal acts of repudiation of the co-
Partition is the division between two or more persons of real or personal ownership amounting to an ouster of the beneficiary or the
property which they own in common so that each may enjoy and other co-owners
possess his sole estate to the exclusion of and without interference from ii. Such positive acts of repudiation have been made known to
the others the beneficiary or other co-owners
Co-owner ahs the right to demand at any time partition of the thing iii. Evidence thereon is clear, complete and conclusive in order to
owner in common, insofar as his share is concerned for “no co-owner establish prescription without any shadow of doubt; and
shall be obliged to remain in the co-ownership” iv. Possession is open, continuous, exclusive and notorious
Action to demand partition is imprescriptible or cannot be barred by
laches, absent a clear repudiation of the co-ownership by a co-owner Examples of specific acts which are considered as acts of repudiation
clearly communicated to the other co-owners Filing by a trustee of an action in court against the trustor to quiet title to
The actual possession and enjoyment of several portions of the property
common property by some of the co-owners does not of itself provide Action for reconveyance of land based on implied or constructive trust
proof that the property has already been partitioned and co-ownership Cancellation of title in the name of the apparent beneficiaries and
terminated. application for a new certificate of title in his (administrator/trustee)
o A co-owner cannot, without the conformity of the other co- name
owners or judicial decree of partition, adjudicate to himself in
fee simple a determinate portion of the property owned in Art 495 Notwithstanding the provisions of the preceding article, the co-
common as his share theirein, to the exclusion of the others owners cannot demand a physical division of the thing owned in
common, when to do so would render it unserviceable for the use for
Exceptions to the right to demand partition which it is intended. But the co-ownership may be terminated in
1. When the co-owners have agreed to keep the thing undivided for a accordance with Article 498.
certain period of time, not exceeding ten years
o Period stipulated exceeds ten years would be void insofar as Art 496 Partition may be made by agreement between the parties or by
the excess is concerned judicial proceedings. Partition shall be governed by the Rules of Court
2. When the partition is prohibited by donor or testator for a certain period insofar as they are consistent with this Code.
not exceeding twenty years
3. When the partition is prohibited by law Purpose and effect of partition
o Conjugal property, etc Partition has for its purpose the separation, division and assignment of
the thing held in common among those to whom it may belong.
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After partition, the portion belonging to each co-owner has been without prejudice to the right of the debtor or assignor to maintain its
identified and localized, so that co-ownership, in its real sense, no validity.
longer exists
The law does not expressly require that previous notice of the proposed
Action for partition partition be given to the creditors and assignees. But as they are
Two phases: granted the right to participate in the partition, they have also the right to
o Determine whether there is indeed a co-ownership be notified thereof. In the absence of notice, the partition will not be
o Determine how the property is to be divided binding on them.
The issue of ownership or co-ownership must first be solved in order to Rules:
effect a partition of properties o If no notice is given, the creditors or assignees may question
An action for partition will not lie if the claimant has no rightful interest the partition already made;
over the subject property o If notice is given, it is their duty to appear and make known
their position; they may concur with the proposed partition or
How partition effected object to it; and
May be effected extrajudicially pursuant to an agreement o They cannot impugn a partition already executed or
May be effected judicially by judicial proceedings under Rule 69 of the implemented unless:
Rules of Court There has been fraud, whether or not notice was
o An action for partition is in the nature of an action quasi in rem given, and whether or not formal opposition was
presented, or
Application of the Statute of Frauds The partition was made notwithstanding that formal
The Statute of Frauds does not apply to partition because it is not opposition was presented to prevent it, even if there
legally deemed a conveyance or a sale of property resulting in change has been no fraud.
of ownership but simply a segregation and designation of that part of the Debtor or assignor has always the right to show the validity of the
property which belongs to each of the co-owners partition.
Oral partition is valid and enforceable where no third persons are
involved Art 498 Whenever the thing is essentially indivisible and the co-owners
o In cases of oral partition, the actual possession of one of the cannot agree that it be allotted to one of them who shall indemnify the
property is evidence that there was indeed oral partition. others, it shall be sold and its proceeds distributed.
o In an oral partition under which the parties went into
Although the thing cannot be physically divided, the co-ownership may
possession, exercises acts of ownership, or otherwise partly
performed the partition agreement, equity will confirm such nevertheless be terminated in accordance with the above provision
partition and in a proper case, decree title in accordance with pursuant to the rule in Art 494 by adjudication of the thing to one of the
the possession in severalty co-owners who shall indemnify the others or by its sale with the
proceeds thereof divided among the co-owners
Art 497 The creditors or assignees of the co-owners may take part in Sale may be private, public, and purchases may be a co-owner or a
the division of the thing owned in common and object to its being third person
effected without their concurrence. But they cannot impugn any Art 498 applies when:
partition already executed, unless there has been fraud, or in case it o Thing indivisible
was made notwithstanding a formal opposition presented to prevent it, o Co-owners can’t agree that it be allotted to one of them, who
shall indemnify the others
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o So, ibenta na lang! Foreigners can own up to 40% of the entire condominium corporation
(so if the condominium has 100 units, foreigners can own up to 40 units)
Art 499 The partition of a thing owned in common shall not prejudice “Project” means the entire parcel of real property divided or to be
third persons who shall retain the rights of mortgage, servitude, or any divided in condominiums, including all structures thereon
other real rights belonging to them before the division was made. “Common areas” (meaning the entire project excepting all units
Personal rights pertaining to third persons against the co-ownership separately granted or held or reserved) are owned by the condominium
shall also remain in force, notwithstanding the partition. corporation
“Private units” (meaning the a part of the condo project intended for any
Third persons, refer to all those with real rights, such as mortgage and type of independent use or ownership) are owned by the unit owners
servitude over the thing owned in common or with personal rights o Unit owners are shareholders in the condominium
against the co-owners who had no participation whatever in the partition o If you sell your unit to someone else, you lose your status as a
shareholder in the condominium corporation
Art 500 Upon partition, there shall be a mutual accounting for benefits Condominium Certificate of Title is what’s given (as opposed to a OCT
received and reimbursements for expenses made. Likewise, each co- or TCT)
owner shall pay for damages caused by reason of his negligence or
fraud.
TITLE V – POSSESSION
Art 501 Every co-owner shall, after partition, be liable for defects of title CHAPTER ONE
and quality of the portion assigned to each of the other co-owners. POSSESSION AND THE KINDS THEREOF
What are the obligations of the co-owners upon partition? (ARIW) Art 523 Possession is the holding of a thing or the enjoyment of a right.
1. Mutual accounting for the benefits received (because the fruits and
other benefits of the thing belong to all the co-owners) Concept of possession
2. Mutual reimbursement for expenses (necessary expenses, taxes, etc) As a distinct legal concept, possession is the holding of a thing or the
3. Indemnity for damages caused by reason of negligence or fraud enjoyment of a right with the intention to possess in one’s own right
4. Reciprocal warranty for defects of title or quality of the portion assigned
to a co-owner (land allotted to a co-owner belongs to a third party, or the Ownership and possession distinguished
property is of inferior quality) There is ownership when a thing pertaining to one person is completely
a. Atty Abrenica said that in practice, the remedy in this situation subjected to his will in a manner not prohibited by law and consistent
is to divide the remaining property and just give it to the one with the rights of others. It confers certain right to the owner (right to
prejudiced enjoy the thing owned and the right to exclude other persons from
possession thereof)
THE CONDOMINIUM ACT On the other hand, possession is defined as the holding of a thing or the
A condominium is an enjoyment of a right. To possess means to actually and physically
o Interest in real property consisting of occupy a thing with or without a right.
A separate interest in a unit in a residential, industrial, Possession may be in the concept of an owner or in the concept of a
or commercial building, and holder.
An undivided interest in common directly or indirectly A person may be declared owner but he may not be entitled to
in the land on which it is located and in other common possession. (As in when the possession is in the hands of a tenant)
areas of the building.
Two important documents: Master Deed and Declaration of Restrictions
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A possessor has in his favor the presumption that his possession is Name under which possession may be exercised
lawful – that he is the owner or has been given the right of An owner or a holder may exercise his possession in his own name or
possession by the owner. He who would disturb a possessor must through another.
show either ownership or a better possessory right. In the same way, possession may be acquired by the same person who
2. Possession is not a definitive proof of ownership nor is non-possession is to enjoy it or by one acting for another (Art 532)
inconsistent therewith. Possession, however, may create ownership 1. In one’s own name
either by occupation or by acquisitive prescription. o When in one’s own name, the fact of possession and the right
to such possession are found in the same person, such as the
Classes of possession actual possession of an owner or a lessor of land.
1. Possession in one’s own name or in the name of another (Art 524) 2. In the name of another
2. Possession in the concept of owner or possession in the concept of o When possession is in the name of another, the one in actual
holder (Art 525), and possession is without any right of his own, but is merely an
3. Possession in good faith or possession in bad faith (Art 526) instrument of another in the exercise of the latter’s possession,
such as possession of an agent, servant or guard. Possession
Extent of possession in another’s name may be:
1. Actual possession Voluntary, when exercised by virtue of an agreement,
Occupancy in fact of the whole or at least substantially the whole. or
With land, it consists in the manifestation of acts of dominion over it Necessary or legal, when exercised by virtue of law,
of such a nature as a party would naturally exercise over his such as the possession in behalf of incapacitated
property. persons.
Literally, to possess means to actually and physically occupy a Physical or material, when the possessor is a mere
thing with or without a right. custodian of the property and has no independent
2. Constructive possession right or title to retain or possess the same as against
Occupancy of part in the name of the whole under such the owner (like the possession of money received by
circumstances that the law extends the occupancy to the a teller for the bank), or
possession of the whole. Juridical, when the possession gives the transferee a
Doctrine of constructive possession right over the thing which the transferee may set up
Possession in the eyes of the law does not mean that a man has to against the owner, such as the possession of an
have his feet on every square meter of ground before it can be said that agent who receives the proceeds of sales of goods
he is in possession. delivered to him in agency by his principal.
The general rule is that the possession and cultivation of a portion of a
tract of land under claim of ownership of all is constructive possession Case doctrines
of all. In the grammatical sense, to possess means to have, to actually and
o There are qualifications to this rule, and one of them is that physically occupy a thing, with or without a right. Two things are
relating to the size of the tract in controversy with reference to paramount in possession –
the portion actually in possession of the claimant. o there must be occupancy, apprehension or taking, and
o there must be intent to possess (animus possidendi). (Yu v
Pacleb)
Art 524 Possession may be exercised in one’s own name or in that of Possession always includes the idea of occupation. It is not necessary
another. that the person in possession should himself be the occupant. The
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occupancy can be held by another in his name. without occupancy, A distinction must be borne in mind between possession of the thing
there is no possession. (Yu v Pacleb) itself and possession of the right to keep or enjoy the thing.
o Rights are possessed in the concept of owner. Thus, the
lessee possesses the thing leased in the concept of holder,
Art 525 The possession of things or rights may be had in one of two and the right of lease in the concept of owner.
concepts: either in the concept of owner, or in that of the holder of the The agent, parent and other legal representatives possess neither in the
thing or right to keep or enjoy it, the ownership pertaining to another concept of owner nor holder. They possess in the name of another.
person.
Case doctrines
Concept in which possession may be had Possession is:
Concept, as contemplated in the provision, does not mean the opinion, o open when it is patent, visible, apparent, notorious and not
attitude or belief of the possessor, but of the others, generally in view of clandestine.
the circumstances which precede and accompany the possession. o continuous when uninterrupted, unbroken and not intermittent
Thus, possession in the concept of owner is distinguished from or occasional.
possession in good faith. o exclusive when the adverse possessor can show exclusive
This kind of possession is also referred as to adverse possession that dominion over the land and an appropriation of it to his own
may ripen into ownership under Article 540. use and benefit
Possession may be had in one of two concepts: o notorious when it is so conspicuous that it is generally known
1. Possession in the concept of owner (en concepto de dueno) and talked off by the public or the people in the neighborhood.
This takes place when the possessor, by his actions, is Use of land is adverse when it is open and notorious. (Republic v
considered or is believed by other people as the owner, Imperial Credit Corporation)
regardless of the good or bad faith of the possession. While a tax declaration by itself is not sufficient to prove ownership, it
It is possession under a claim of ownership or title by one who may serve as sufficient basis for inferring possession. (Rep v ICC)
is the owner himself or one who is not the owner but claims to Tax declarations and receipts can only be the basis of a claim of
be and acts as the owner. ownership through prescription when coupled with proof of actual
2. Possession in the concept of holder possession. (Heirs of Cabal v Cabal)
This takes place when the possessor of a thing or right holds it However, tax declarations and receipts are not conclusive evidence of
merely to keep or enjoy it, the ownership pertaining to another ownership. At most, they constitute mere prima facie proof of ownership
person. or possession of the property for which the taxes have been paid. In the
It is possession not under a claim of ownership, the possessor absence of actual public and adverse possession, the declaration of the
acknowledging in another a superior right which he believes to land for tax purposes does not prove ownership. (Cequena v Bolante)
be of ownership, whether this be true or not, or his belief be
right or wrong. Art 526 He is deemed a possessor in good faith who is not aware that
A person may be a lessor although he is not the owner of the there exists in his title or mode of acquisition any flaw which
property leased. In lease, only the temporary use and invalidates it.
enjoyment, not the ownership of the property is transferred. He is deemed a possessor in bad faith who possesses in any
case contrary to the foregoing.
Possession in concept of both owner and holder or in neither Mistake upon a doubtful or difficult question of law may be the
It is possible that a person may exercise possession both in the concept basis of good faith.
of owner and in the concept of holder.
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Define possessor in good faith and in bad faith The essence of bona fides or good faith lies in:
A possessor in good faith (Buena fe) is one who is not aware that there o The honest belief in the validity of one’s right,
exists in his title or mode of acquisition any flaw which invalidates it. o ignorance of a superior claim, and
A possessor in bad faith (mala fe) is one who possesses in any case o absence of intention to overreach another, or to defraud or to
contrary to the foregoing; he is aware that there exists in his title or seek an unconscionable advantage. (also the doctrine of Heirs
mode of acquisition a flaw which invalidates it. of Cabal)
This article presupposes that the there exists a flaw in the title or mode Good faith must rest on a colorable right in the possessor beyond a
of acquisition of the possessor who is either aware or not aware of it. mere stubborn belief in one’s title.
If there is no flaw, there can be no issue regarding good or bad faith. One is considered a possessor in good faith if he is not aware that there
Good faith is always presumed, and upon him who alleges bad faith on exists in his title or mode of acquisition any flaw which invalidates it.
the part of the possessor rests the burden of proof. Basically, it’s honesty of intention and absence of malice.
The distinction is importance principally in connection with the receipt of
fruits and the payment of expenses and improvements and the Concept of bad faith
acquisition of ownership by prescription. It is the opposite of good faith.
The distinction is immaterial in the exercise of the right to recover under It imputes a dishonest purpose to do wrong or cause damage.
Article 539 which speaks of every possessor. It contemplates a state of mind affirmatively operating with furtive design
The good or bad faith is necessarily personal to the possessor but in the or some motive of self-interest of ill-will for ulterior purposes.
case of a principal and any person represented by another, the good or
bad faith of the agent or legal rep will benefit or prejudice him for whom Mistake upon a doubtful or difficult question of law
he acts. The phrase “mistake upon a doubtful or difficult question of law” refers
to the honest error in the application of the law or interpretation of
Requisites for possession in good faith or bad faith doubtful or conflicting legal provisions or doctrines.
1. The possessor has a title or mode of acquisition; (Art 712) It is different from “ignorance of the law.”
2. There is a flaw or defect in said title or mode; and Manresa says that gross and inexcusable ignorance of the law may not
3. The possessor is unaware or aware of the flaw or defect or believes that be the basis of good faith, but excusable ignorance may be such basis if
the thing belongs or does not belong to him. it is based upon ignorance.
A possessor in good faith becomes a possessor in bad faith from the Dean Capistrano says that excusable ignorance as a basis of good faith
moment he becomes aware that what he believes to be true is not so. was rejected by the Code Commission.
If the flaw is in the title of the possessor’s predecessor, and affects his
own title, the flaw exists in his own title unless he can sustain his own Case doctrines
independent of that of his predecessor. The possessor with a Torrens Title who is not aware of any flaw in his
title which invalidates it is considered a possessor in good faith and his
Concept of good faith possession does not lose this character except in the case and from the
Good faith or the lack of it is a question of intention, but in ascertaining moment his Torrens Title is declared null and void by final judgment of
the intention, the courts are necessarily controlled by the evidence as to the Courts. (Dizon v Rodriguez)
the conduct and outward acts by which alone the inward motive may be The defense of having purchased the property in good faith may be
determined. availed of only where registered land is involved and the buyer had
Good faith or the want of it, is not a visible, tangible fact that can be relied in good faith on the clear title of the registered owner. (Daclag v
seen or touched but rather a state or condition of mind which can only Macahilig)
be ascertained by actual or fancied tokens or signs.
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Art 530 Only things and rights which are susceptible of being 2. With respect to rights – since rights are intangible and cannot logically
appropriated may be the object of possession. be occupied, what is acquired is the exercise of a right. For example,
possession of a servitude of way, which is a right, is acquired by the
Object of possession exercise of the right (by passing over the servient land)
To be the object of possession, the thing or right must be susceptible of
being appropriated. Material occupation by delivery
There are more things susceptible of appropriation than there are things The material occupation of a thing as a means of acquiring possession
within the commerce of men (i.e. those that can be acquired by may take place by actual or constructive delivery. Constructive delivery
prescription). includes:
o With respect to res nullius (property without owner), they can 1. Tradicion brevi manu which takes place when one already in
be possessed because theya re capable of being appropriated possession of a thing by a title other than ownership continues to
but hey cannot be acquired by prescription which presupposes possess the same under a new title, that of ownership.
prior ownership in another. For as long as a thing is res nullius, 2. Tradicion constitutum possessorium which happens when the
it is not within the commerce of men. owner continues in possession of the property alienated not as
o Property of public dominion cannot also be the object of owner but in some other capacity, such as that of lessee, pledgee,
prescription. The same is true of common things but both may or depositary.
be the object of possession.
Subject of the action of will
The second method of acquisition is so broad in scope that it practically
CHAPTER 2 covers all means of acquiring possession.
What the law contemplates is a distinct cause of acquiring possession
ACQUISITION OF POSSESSION and not merely an effect.
It refers more to the right of possession than to possession as a fact.
Art. 531. Possession is acquired by the material occupation of a thing
or the exercise of a right, or by the fact that it is subject to the action of Examples of which are these kinds of constructive delivery:
our will, or by the proper acts and legal formalities established for 1. Tradicion longa manu, which is effected by the mere consent or
acquiring such right. (438a) agreement of the parties, as when the vendor merely points to the
thing sold
Ways of acquiring possession 2. Tradicion simbolica, which is effected by delivering an object such
as a key where the thing sold is stored or kept
To be considered in possession, one need not have actual or physical
occupation of a thing all times. There are three ways of acquiring
Proper acts and legal formalities
possession, namely:
1. By the material occupation or exercise of a right; This last method of acquiring possession refers to acquisition by virtue
2. By the subjection of the thing or right to our will; and of a just title such as when property is transmitted by succession,
3. By proper acts and legal formalities established for acquiring such donation, contract, or execution of a public instrument, or when
right of possession. possession is given by the sheriff to the highest bidder at a public
auction, or pursuant to a writ of execution.
The modes of acquiring ownership can be seen in Article 712.
Unless there is a stipulation to the contrary, the execution of a sale thru
Material occupation or exercise of right a public instrument shall be equivalent to the delivery of the thing. But
1. With respect to things – the law requires material occupation as one of there is no delivery notwithstanding the execution of the instrument,
the modes of acquiring possession. where the purchaser cannot have the enjoyment and make use of the
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thing sold because such enjoyment and use are opposed or prevented Possession acquired by a person personally or thru another may be
by another. exercised by him in his own name or in that of another. But minors and
Under Article 538, possession as a fact cannot be recognized at the other incapacitated persons need the assistance of their legal
same time in two different personalities except in the cases of co- representatives to exercise the rights arising from possession.
possession If a person authorized to acquired possession for another acted beyond
A sale with pacto de retro transfers the legal title to the vendee, and in his powers, the principal is not bound unless the latter ratifies the act of
the absence of an agreement to the contrary, carries with it the right to acquisition.
the possession of the property sold. The exception is when a person voluntarily manages the property or
business of another. In such case, the stranger’s (gestor’s) possession
Case doctrines takes effect even without ratification by the owner of the property or
Possession alone is not sufficient to acquire title to alienable lands of business.
the public domain because the law requires possession AND
occupation. Case doctrines
Possession is broader than occupation because it includes constructive
possession. When the lad adds the word occupation, it seeks to delimit Art. 533. The possession of hereditary property is deemed transmitted
the all encompassing effect of constructive possession. One’s to the heir without interruption and from the moment of the death of
possession must not be a mere fiction. Acutla possession of a land the decedent, in case the inheritance is accepted.
consists in the manifestation of acts of dominion over it of such a nature One who validly renounces an inheritance is deemed never to
as a party would naturally exercise over his own property. (Ong v have possessed the same. (440)
Republic)
Possession cannot be acquired through force or violence. To all intents Acquisition of possession through succession
and purposes, a possessor, even if physically ousted, is still deemed the The rights to the succession are transmitted from the moment of the
legal possessor. (Cequena v Bolante) death of the decedent.
From that moment, each of his heirs becomes the undivided owner of
Art. 532. Possession may be acquired by the same person who is to the whole estate left with respect to that portion which might be
enjoy it, by his legal representative, by his agent, or by any person adjudicated to him.
without any power whatever: but in the last case, the possession shall The inheritance may be accepted or repudiated.
not be considered as acquired until the person in whose name the act There is no doubt that an heir can sell whatever right, interest or
of possession was executed has ratified the same, without prejudice to participation he may have in the property under administration, subject
the juridical consequences of negotiorum gestio in a proper case. to the result of said administration.
(439a) In case the inheritance is accepted, the possession of the hereditary
property is deemed transmitted by operation of law to the heir without
By whom possession acquired interruption and from the moment of death of the decedent.
Possession may be acquired: In this inheritance is validly renounced, the heir is deemed never to
1. Personally or by the same person who is to enjoy it; have possessed the same.
2. Thru an authorized person or by his legal representative or by his See book for examples.
agent, and
3. Thru an unauthorized person or by any person without any power Art. 534. On who succeeds by hereditary title shall not suffer the
or authority whatever. consequences of the wrongful possession of the decedent, if it is not
shown that he was aware of the flaws affecting it; but the effects of
Acquisition of possession through another
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possession in good faith shall not benefit him except from the date of Every possessor has a right to be respected in his possession. The
the death of the decedent. (442) lawful possessor may use such force as may be reasonably necessary
to repel or prevent invasion or usurpation of his property.
Effects of bad faith of decedent on heir This article applies to one who believes himself the owner of real
If the decedent was in bad faith, the heir shall not suffer the property. If he takes justice into his own hands, he is a mere intruder;
consequences of the wrongful possession of the latter because bad and he can be compelled to return the property in an action for forcible
faith is personal to the decedent and is not deemed transmitted to the entry and must suffer the necessary and natural consequences of his
heirs. lawlessness.
The heir suffers the consequences of such possession only from the A party who can prove prior possession, whatever may be the character
moment he becomes aware of the flaws affecting the decedent’s title. of the possession, has the security that entitles him to recover such
See book again for examples. possession or to remain on the property even against the owner himself
until he is lawfully ejected by accion publiciana or accion reivindicatoria.
Case doctrines
A possessor in bad faith should not prejudice his successors-in-interest. Art. 537. Acts merely tolerated, and those executed clandestinely and
Bad faith is personal and intransmissible. (Escritor v IAC) without the knowledge of the possessor of a thing, or by violence, do
Art. 535. Minors and incapacitated persons may acquire the not affect possession. (444)
possession of things; but they need the assistance of their legal
representatives in order to exercise the rights which from the Acts which do not give rise to possession
possession arise in their favor. (443) The acts mentioned do not affect possession, i.e. the person in
possession does not lose the same nor does the person who results to
Acquisition and exercise of rights of possession by minors and incapacitated them acquire it. In other words, the true possessor is deemed to have
persons enjoyed uninterrupted possession.
The persons referred to in the provision are unemancipated minors and o Force or intimidation – as long as there is a possessor who
other persons who have no capacity to act like spendthrifts, deaf-mutes objects thereto, such as by suit of forcible entry. The rule does
who cannot read and write, those under civil interdiction, etc. not apply if the possessor makes no objection, withdraws his
Things here are limited to corporeal things only. objection or takes no action whatsoever after initially objecting
This article refers principally but not exclusively to material occupation. to the deprivation.
Incapacitated persons may acquire property or rights by prescription o Acts executed clandestinely and without the knowledge of the
either personally or through their parents, guardians or legal reps. Once possessor – which mean that the acts are not public and
possession of a thing is acquired by such persons, there is born the unknown to the possessor or owner.
right of possession. In the exercise of this right, they need the o Acts merely tolerated – which do not refer to all kinds of
assistance of their legal reps. tolerance on the part of the owner or possessor in view of the
use of the word ‘merely’; it means permission, express or tacit,
Art. 536. In no case may possession be acquired through force or by virtue of which the acts of possession are performed.
intimidation as long as there is a possessor who objects thereto. He Hence, it is simply a question of whether permission was given
who believes that he has an action or a right to deprive another of the or not.
holding of a thing, must invoke the aid of the competent court, if the Possession of another by mere tolerance is not adverse and no matter
holder should refuse to deliver the thing. (441a) how long continued, cannot ripen to ownership by prescription.
The mere silence or failure to take any action will not be construed as
Recourse to the courts abandonment of rights on the part of the real possessor. It is, of course,
for the courts to decide whether there has been an abandonment or not.
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2. As part of the law of tort (these rights of action are given in respect of The main issue is possession de facto, independently of any claim of
the immediate and present violation of the rights of the possessor ownership or possession de jure that either party may set forth in his
independently of his rights of property) pleadings, and an appeal does not operate to change the nature of the
3. As part of the law of property (law does not always known that the original action
possession in question is unlawful. It would be unjust to cast on every Even a mere applicant of public land who is in occupation and in
man whose possession is disturbed the burden of proving a flawless peaceful possession thereof can file an action for forcible entry
title) Question of ownership is unessential and should be raised by the
defendant in an appropriate action
Remedies of persons deprived of possession (see discussions in Art 428) o Judgment rendered in an action for forcible entry shall not bar
1. forcible entry or unlawful detainer an action between the same parties respecting the title to the
2. accion publiciana land or building
3. accion reivindicatoria o The court has competence to resolve the issue of ownership
4. replevin or manual delivery of personal property but only to determine the issue of priority of possession, as its
decision does not bind the title or affect the ownership of the
In forcible entry and unlawful detainer cases, subject to some property involved (any pronouncement on ownership is
exceptions, the immediate execution of the judgment in favor of the provisional)
plaintiff is a matter of right and mandatory. The purpose of the law is to protect the person who has actual
Considering that the only issue in ejectment is that of rightful possession
possession, damages that could be recovered are those which the The plaintiff in an action for forcible entry and detainer cannot succeed
plaintiff could have sustained as a mere possessor, or those caused by when it appears that, as between himself and the defendant, the latter
the loss of the use and occupation of the property, and not the damages had possession antedating his own; and to ascertain this, it is proper to
which he may have suffered but which have no direct relation to his loss look on to the situation as it existed before the first act of spoliation
of material possession. occurred
Legal right of prior possessor is not an issue
Issuance of a writ of preliminary mandatory injunction o If the plaintiff can prove prior possession, he may recover
In forcible entry actions, the plaintiff must present within ten days from
possession even against the owner himself.
the filing of the complaint a motion to secure from the competent court, o If he can’t prove prior possession, he has no right of action
a writ of preliminary mandatory injunction to restore him in his
even if he should be the owner himself.
possession
In case of controverted right, the law requires the parties to preserve the
In unlawful detainer cases where an appeal is taken, the motion shall be
status quo until one or the other of them sees fit to invoke the decision
filed within ten days from the time the appeal is perfected, if the high
of a court upon the question of possession and/or possession
court is satisfied that the lessee’s appeal is frivolous or dilatory, or the
A forcible entry or unlawful detainer is not suspended, abated, barred or
lessor’s appeal is prima facie meritorious.
affected by actions filed in the RTC which do not involve physical or de
In an appeal from a lower court in an ejectment case, the issue of
facto possession
ownership should not be delved into, for an ejectment action lies even
against the owner of a property.
Conditions under which action for forcible entry will lie
Prior peaceful possession of plaintiff required in forcible entry action Wrongful entrance by one not in possession
o The trespasser does not have to institute a state of war. The
Where a dispute over possession arises between two persons, the
person first having actual possession, as between them, is the one who act of going on the property and excluding the lawful possessor
is entitled to maintain the action for forcible entry. therefrom necessarily implies the exertion of force over the
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property, and this is all that is necessary. Under the law, 5. As possessor of forest land (not possible!)
entering upon the premises by strategy or stealth is equally as
obnoxious as entering by force. Mere tax declarations of ownership do not vest or prove ownership of
o The words “by force, intimidation, threat, etc” include every the property in the declarant nor are even sufficient to sustain a claim
situation or condition under which one person can wrongfully for possession over a land, in the absence of actual possession of the
enter upon real property to exclude another, who has prior same.
possession therefrom. (Banes case) They are merely an indicum of a claim of ownership
Wrongful exclusion of prior possessor Nevertheless, they are good indicia of possession in the concept of
o The foundation of the action is really the forcible exclusion of owner
the original possessor by a person who has entered without Payment of realty tax coupled with actual possession in the concept of
right. owner is one of the most persuasive and positive indicia, which shows
the will or desire of a person to possess with claim of ownership or to
Art 540 Only the possession acquired and enjoyed in the concept of obtain title to the land or property
owner can serve as a title for acquiring dominion.
Case doctrine
Possession as basis for acquiring ownership In order than an action for recovery of possession may prosper, it is
Possession acquired and enjoyed in the concept of owner may ripen into indispensable that he who brings the action fully proves not only his
ownership by means of prescription. ownership but also the identity of the property claimed, by describing
the location, area and boundaries thereof. Insufficient identification of
1. As holder the portion of land claimed in absolute ownership cannot ripen into
Cannot be the basis of prescription ownership. (Serina v Caballero)
So with possession acquired through force or intimidation (Art 536),
merely tolerated or which is not public and is unknown to the Art 541 A possessor in the concept of owner has in his favor the legal
present possessor (Art 537) presumption that he possesses with a just title and he cannot be
2. As equitable mortgage obliged to show or prove it.
Constructive possession over the land cannot ripen into ownership
as it cannot be said to have been acquired and enjoyed in the Possessor in concept of owner presumed with just title
concept of owner Just title does not always mean a document or a written instrument
3. As claimant under a possessory information title (meh) Title is that upon which ownership is based
4. As claimant under a certificate of title Actual or constructive possession under claim of ownership raises the
Mere possession cannot defeat the title of a holder of a registered disputable presumption of ownership. In other words, a possession is
Torrens title to real property presumed ownership until the contrary is shown.
But the true owner of the property may be defeated by an innocent A possessor is presumed to have a just title, and he cannot be obliged
purchaser for value notwithstanding the fraud employed by the to show or prove it.
seller (forger) in securing his title o Reason? To protect the owner from inconvenience, otherwise,
Generally, a forged deed is a nullity and conveys no title. However, he will always have to carry his titles under his arms to show
there are instances when such a document may become the root of them to whoever who wants to see it
a valid title. As when the certificate of title was already transferred NB: Presumption of just title does not apply in acquisitive prescription.
from the name of the true owner to the forger, and while it remained Adverse possessor must prove his just title.
that way, the land was subsequently sold to an innocent purchaser
for value (land titles!)
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Burden of proving just title What’s the difference between titulo Colorado and titulo verdadero y valido?
The onus probandi is on the plaintiff who seeks the recovery of property In Colorado, there is a need for prescription to transfer ownership. In true
A person who is not, in fact, in possession cannot acquire a prescriptive and valid title, there is no need for prescription, ownership is transferred
right to a land by the mere assertion of a right therein. Where the once the mode of transfer has been perfected. (Be it by sale, donation,
possessor is really the owner, the fact that a third person questions his succession, etc).
right does not impair said right.
An owner and possessor whose title is true and valid cannot be required
to show that his possession is or has been adverse as against a new Case doctrine
claimant who has neither title nor possession. In order that a co-owner’s possession may be deemed adverse to the
cestui que trusti or the other co-owners, the following elements must
What are the different kinds of title? concur:
1. Titulo verdadero y valido or true and valid 1. That he has perfomrmed unequivocal acts of repudiation amounting
This is the title presumed in this provision to an ouster of the beneficiary or the other co-owners
Sufficient to transfer ownership without need of possessing the 2. That such positive acts of repudiation have been made known to
property for the period necessary for acquiring title by prescription the beneficiary or the other co-owners
2. Titulo justo or just title 3. That the evidence thereon must be clear and convincing (Aguirre v
For the purposes of prescription, there is just title… CA)
o When the adverse claimant came into possession of the Art 542 The possession of real property presumes that of movables
property through one of the modes recognized by law for the therein, so long as it is not shown or proved that they should be
acquisition of ownership or other real rights, excluded.
o but the grantor was not the owner or could not transmit any
Possession of real property presumed to include movables
right
Article 542 refers to material possession only of things, not rights
For prescription, just title must be proved, it is never presumed.
Possession may be in the concept of owner, of holder, in one’s own
It must be remembered that the burden of proving the status of a
name or in another’s, or in good faith or in bad faith
purchaser in good faith lies upon him who asserts that status. It is
It is normal that movables which are found in an immovable belong to
not sufficient to invoke the ordinary presumption of good faith, that
is, that everyone is presumed to have acted in good faith, since the the possessor of the latter
good faith that is here essential is integral with the very status that If the building is occupied by the lessee, we can suppose the same with
must be established. (Aguirre v CA) respect to him because in this case, the possessor is the lessee
3. Titulo colorado or colorable title Again, this is a mere presumption.
One which a person has when he buys a thing in good faith, from
one who is not the owner but whom he believes to be the owner Art 543 Each one of the participants of a thing possessed in common
The just title required for acquisitive prescription is titulo Colorado shall be deemed to have exclusively possessed the part which may be
4. Titulo putativo or putative title allotted to him upon the division thereof, for the entire period during
which the co-possession lasted. Interruption in the possession of the
One which a person believes he has title but in fact he has not
whole or a part of a thing possessed in common shall be to the
because there was no mode of acquiring ownership
prejudice of all the possessors. However, in case of civil interruption,
As when one is in possession of a thing in the mistaken belief that it the Rules of Court shall apply.
had been bequeathed to him
Exclusive possession of previous co-owner deemed continuous
Article 543 speaks of co-possession of a thing, not of co-ownership
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Nevertheless, its principle is applicable to co-possession of a real right 3. If the possessor should be absolved from the
Co-possession can be over a thing or a right complaint.
All participants of a thing possessed in common constitute only one A notice for adverse claim does NOT interrupt
personality and the personality ceases when there is a partition. prescription (Heirs of Arzadon-Crisologo v Ranon)
From that moment of cessation, the personality of each participant Interruption must refer to the whole thing itself or part of it and not to a
begins. part or right of a co-possessor.
Each co-possessor is deemed (not merely presumed!) to have In a co-possession, there is only one thing and many possessors. If the
possessed exclusively and continuously during the period of co- right of a co-possessor is contested, he alone shall be prejudiced.
possession the part assigned to him in the division. With respect to the thing, the prejudice shall be against all.
The effects of the division retroact to the commencement of the co-
possession. Art 544 A possessor in good faith is entitled to the fruits received
But the division shall be without prejudice to the rights of creditors. before the possession is legally interrupted.
Natural and industrial fruits are considered received from the
Harry, Ron, and Hermione have been co-possessors in the concept of time they are gathered or severed.
owners of a 15 hectare parcel of land until they divided the property equally Civil fruits are deemed to accrue daily and belong to the
on the 8th year. If on the 4th year after the division, Draco claims ownership of possessor in good faith in that proportion.
the portion allotted to Harry, Harry can assert title by acquisitive prescription
through possession for 10 years, for he is deemed to have possessed his Art 545 If at the time the good faith ceases, there should be any natural
portion exclusively and continuously for a period of 12 years. 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
Interruption in possession of the thing proportion to the time of possession.
Both the benefits and the prejudices that might have taken place during The charges shall be divided on the same basis by the two
the co-possession shall attach to each of the co-participants possessors.
Prescription obtained by a co-possessor shall benefit the others The owner of the thing may, should he so desire, give the
possessor in good faith the right to finish the cultivation and gathering
Interruption in the possession of the whole or part of a thing shall be to
of the growing fruits, as an indemnity for his part of the expenses of
the prejudice of all the possessors.
cultivation and the net proceeds; the possessor in good faith who for
Possession is interrupted for purposes of prescription either
any reason whatever should refuse to accept this concession, shall
o Naturally (when through any cause it should cease for more
lose the right to be indemnified in any other manner.
than 1 year)
o Civilly (when the interruption is produced by judicial summons
The fruits of a thing generally belong to the owner (Art 441) but a
to the possessor) possessor in good faith is entitled to the fruits received until good faith
In civil interruption, only those possessors served with ceases and bad faith begins.
judicial summons are affected. Legal interruption of possession in good faith takes place upon service
For civil interruption to take place, the possessor must
of judicial summons to the possessor.
have received judicial summons. o All fruits that the possessor may receive from the time that he
When will summons not be deemed to have been
is summoned, or when he answers the complaint, must be
issued and shall not give rise to interruption?
delivered or paid by him to the owner or lawful possessor.
1. If it should be void for lack of legal solemnities, or
2. If the plaintiff should desist from the complaint or Whenever there is cessation of good faith in the eyes of the law,
should all the proceedings to lapse, or whether by reason of the filing of a complaint or not, possession in good
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faith should be deemed legally interrupted from such cessation and not
merely from the service of judicial summons. Must pay damages as
When the owner or possessor with a better right comes along, when he reasonable rent for the
becomes aware that what he had taken for granted is at least doubtful, term of possession.
and when he learns the grounds in support of the adverse claim, good
faith ceases. But entitled to
Possessor in bad faith is not entitled to the fruits. He has the duty to necessary expenses
reimburse the fruits received including that which the legitimate for preservation,
possessor could have received. cultivation, and
The right of the possessor in good faith is limited to the fruits, referring gathering of fruits.
to natural, industrial and civil fruits (Art 441). Other things (building)
belong to the owner of the land. b. Pending Owner has 2 options:
No rights, not even
When fruits considered received First: Pro-rating reimbursement of
1. For natural and industrial fruits – from the time they are gathered or (based on period of expenses for
severed. Fruits gathered before legal interruption belong to the possession) between cultivation (because by
possessor in good faith. possessor and owner right of accession, all
2. For civil fruits – their accrual, not their actual receipt, shall determine of: expenses, net fruits belong to owner
when they are considered received at the time the good faith is legally harvest and charges without need to pay
interrupted. They are deemed to accrue daily and belong to the indemnity)
possessor in good faith in that proportion.
Second: To allow Must pay damages as
Kinds of Fruits Possessor in Good Possessor in Bad Faith possessor to stay in reasonable rent for the
Faith possession until after term of possession
1. Civil fruits Entitled to fruits from Not entitled to fruits. all fruits are gathered
start of possession (which shall serve as
until legal interruption Must pay damages as the indemnity for
rental from time expenses)
possession started
until possession is Proportionate division of fruits and expenses
finally defeated Art 545 does not apply when the possessor is in bad faith, the fruits are
2. Natural/Industrial civil, or the fruits are natural or industrial but they have been gathered or
Fruits severed when good faith ceases
A possessor in bad faith has no right whatsoever to the fruits, gathered
a. Gathered Right to retain fruits Must account for fruits or pending, except only necessary expenses for gathered fruit (Art 443,
and return value of: 449). Since civil fruits are produced day by day, Art 545 does not apply
fruits actually received, to them.
and fruits which the In the case of fruits already gathered at the time good faith ceases, it is
legal possessor could Art 544 that is applicable.
have received with due If there are pending natural and industrial fruits at the time good faith
care and diligence. ceases, the two possessors shall share in the expense of cultivation and
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the charges (expenses made not on the property itself but on account of expenses have been incurred, provided that the thing suffers no injury
it, such as taxes, interest on mortgages) in proportion to the time of thereby, and that the lawful possessor does not prefer to retain them
possession. by paying the value they may have at the time he enters into
They will also share on the fruits in proportion to the time of possession possession.
as well.
What if there are no fruits or the fruits are less than expenses? Expenses Possessor in Good Possessor in Bad Faith
o If there is no net harvest because there are no fruits or the Faith
fruits are less than the expenses, art 545 won’t apply. If the Necessary Expenses Entitled to Entitled to
fruits are merely insufficient, the same should be divided in reimbursement reimbursement
proportion to their respective expenses. Right of retention No right of retention;
o No fruits? Each should bear his own expenses subject to the pending full must vacate property
right of the possessor in good faith to be refunded for reimbursements (recourse is to file
necessary expenses under Art 546, unless the owner of new collection case)
possessor exercises his option referred to above. Liable for damages as
reasonable rent for
Art 546 Necessary expenses shall be refunded to every possessor; but period of possession
only the possessor in good faith may retain the thing until he has Useful expenses Owner has 2 options: No rights
reimbursed therefore.
Useful expenses shall be refunded only to the possessor in Option 1:
good faith with the same retention, the person who has defeated him in reimbursement of
the possession having the option of refunding the amount of the either (a) amount spent
expenses or of paying the increase in value which the thing may have or (b) increase in value
acquired by reason thereof. with right of retention
with full payment.
Art 547 If the useful improvements can be removed without damage to
the principal thing, the possessor in good faith may remove them, Option 2: To allow
unless the person who recovers the possession exercises the option possessor to remove
under paragraph 2 of the preceding article. provided no substantial
damage or injury is
Art 548 Expenses for pure luxury or mere pleasure shall not be caused
refunded to the possessor in good faith; but he may remove the Luxurious expenses Owner has 2 options: Owner has 2 options:
ornaments with which he has embellished the principal thing if it
suffers no injury thereby, and if his successor in the possession does Option 1: to allow Option 1: to allow
not prefer to refund the amount expended. possessor to remove possessor to remove
ornaments if the ornaments if the
Art 549 The possessor in bad faith shall reimburse the fruits received principal suffers no principal suffers no
and those which the legitimate possessor could have received, and injury injury
shall have a right only to the expenses mentioned in paragraph 1 of
Article 546 and in Article 443. The expenses incurred in improvements Option 2: to retain the Option 2: to retain the
for pure luxury or mere pleasure shall not be refunded to the ornament by refunding ornament by refunding
possessor in bad faith, but he may remove the objects for which such the amount spent for the value of the
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1. By the abandonment of the thing; The intention to abandon implies a departure, with the avowed intent of
2. By an assignment made to another either by onerous or never returning, resuming or claiming the right and the interest that have
gratuitous title; been abandoned. (Castellano v Francisco)
3. By the destruction or total loss of the thing, or because it goes
out of commerce; Assignment?
4. By the possession of another, subject to the provisions of Assignment is understood to mean the complete transmission of the
Article 537, if the new possession has lasted longer than one thing or right to another by any lawful manner.
year. But the real right of possession is not lost till after the It may be onerous or by gratuitous title.
lapse of ten years. (460a) The effect is that he who was the owner or possessor is no longer so.
Abandonment is always gratuitous.
Modes of losing possession
This provision applies to both real and personal property except no. 4 Destruction, total loss, or withdrawal from commerce
which obviously refers only to personal property (obvious raw eh, sabi ni Destruction or total loss covers not only that which is caused voluntarily
de Leon. Yabang naman niya). The next article is expressly made or intentionally but also that which is caused by accident.
applicable only to movables. A thing is lost when it perishes, or goes out of commerce, or disappears,
etc. (Art 1189)
What is abandonment?
Abandonment is the voluntary renunciation of all rights which a person Possession of another for more than one year
has over a thing thereby allowing a third person to acquire ownership or This refers to possession de facto (as a fact or material possession) and
possession thereof by means of occupancy. not de jure (legal right or real right of possession)
The abandoner may be the owner or a mere possessor but the latter After one year, the former possessor can no longer bring any action for
obviously cannot abandon ownership which belongs to another. forcible entry or unlawful detainer.
(obviously raw!)
Possession by mere tolerance even for over a year does not affect
Since abandonment involves the renunciation of a property right, the possession de facto.
abandoner must have a right to the thing possessed and the legal
After 10 years, the possessor or owner may bring an accion publiciana
capacity to renounce it.
or reivindicatoria to recover possession de jure unless he is barred by
An owner of property cannot be held to have abandoned the same until prescription.
at least he has some knowledge of the loss of its possession or of the
thing, and a thing cannot be considered abandoned under the law until Recovery by lawful owner or possessor
the spes recuperandi (hope of recovery) is gone and the animus
Possession may also be lost when it is recovered from the person in
revertendi (intention to return) is finally given up.
possession by the lawful owner in a reivindicatory action or by the lawful
By voluntary abandonment, a thing becomes without a owner or possessor in an action to recover the better right of possession.
possessor and is converted into res nullius and may thus be acquired by
a third person by occupation. Art. 556. The possession of movables is not deemed lost so long as
Abandonment which converts the thing into res nullius can hardly apply they remain under the control of the possessor, even though for the
to land. time being he may not know their whereabouts. (461)
Castellano v Francisco stated that abandonment requires:
1. A clear and absolute intention to renounce a right or a claim or to Loss of possession of movables
abandon a right or property, and The possession of movables shall be deemed lost when they cease to
2. An external act by which that intention is expressed or carried into be under the control of the possessor either becaue:
effect.
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o They have come into the possession of a third person; or Acts relating to possession of a mere holder do not bind or prejudice the
o Although, they have not been taken by another, possessor in the concept of owner unless said acts were previously
The possessor has completely no idea of their authorized or subsequently ratified by the latter.
whereabouts or location (the pet rat has been missing Possession may be acquired for another by a stranger provided there
for sometime; or be subsequent ratification. (Art 532)
Even if known, they cannot be recovered, whether as
a matter of fact (an unopened box of pastillas has Art. 559. The possession of movable property acquired in good faith is
been dropped in a deep lake) or of law (a movable equivalent to a title. Nevertheless, one who has lost any movable or
lost by prescription). has been unlawfully deprived thereof may recover it from the person in
Possession is not lost by the mere fact that the possessor does not possession of the same.
know for the time being the precise whereabout of a specific movable If the possessor of a movable lost or which the owner has
when he has not given up all hope of finding it (like a ring misplaced or been unlawfully deprived, has acquired it in good faith at a public sale,
lost in particular vicinity). In this case, the possessor has not lost his the owner cannot obtain its return without reimbursing the price paid
legal right to the object. therefor. (464a)
o He retains his juridical control of the thing which remains in his
patrimony. Right of possessor who acquires movable claimed by another
If the possession of a movable property who acquired in bad faith, no
Art. 557. The possession of immovables and of real rights is not right thereto is acquired by the possessor. The property may be
deemed lost, or transferred for purposes of prescription to the recovered by the true owner or possessor without reimbursement.
prejudice of third persons, except in accordance with the provisions of If the acquisition was in good faith, here are the rules:
the Mortgage Law and the Land Registration laws. (462a) o Possession in good faith of a movable is presumed ownership. It is
equivalent to title. This is known as the doctrine of irrrevindicability.
Loss of possession of immovables and real rights with respect to third No further proof is necessary.
persons o The possessor’s title, however, is not absolute. It is equivalent to
Third persons are not prejudiced except in accordance with the title but is not title itself. It is merely presumptive because it can be
provisions of the mortgage law and the registration law. defeated by the true owner.
Against a recorded title, ordinary prescription of ownership or real rights These are the two exceptions to the general rule of irrevindicability. An
shall not take place to the prejudice of a third person, except in virtue of owner can recover in these two instances:
another title also recorded and the time shall begin to run from the 1. When one has lost the movable, or
recording of the latter. 2. When one has been unlawfully deprived.
He may recover without reimbursement. But if the thing was
Art. 558. Acts relating to possession, executed or agreed to by one sold at a public sale, the owner must reimburse the buyer.
who possesses a thing belonging to another as a mere holder to enjoy These are the exceptions to the exceptions. Even when an owner has
or keep it, in any character, do not bind or prejudice the owner, unless lost or has been unlawfully deprived, he still cannot recover in these
he gave said holder express authority to do such acts, or ratifies them instances:
subsequently. (463) 1. When the sale is made at merchant’s stores, fairs or markets.
2. When the owner of the movable is, by his conduct, precluded
Possessory acts of a mere holder from denying the seller’s authority to sell;
The possessor referred to in this article is the same possessor 3. Where the law enables the apparent owner to dispose of the
mentioned in Article 525. movables as if he were the true owner thereof
4. Where the sale is sanctioned by statutory or judicial authority
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5. Where the seller has a voidable title which has not been 2. Domesticated or tamed, or animals which are wild or savage by
avoided at the time of the sale to the buyer in good faith for nature but have been subdued and made use of by man and
value and without notice of the seller’s defect of title become accustomed to live in a tamed condition (tiger ni Chavit)
(remember CLV!) 3. Domestic or tame, or any of the various animals which live and are
6. Where recovery is no longer possible because of prescription born and reared, under the control and care of man, lacking the
7. Where the possessor becomes the owner of the thing in instinct to roam freely (dog, cat, carabao, cow)
accordance with the principle of finder’s keepers Wild animals may be the object of hunting. They are possessed only if
they are under one’s control. Possession of wild animals are lost when
Case doctrines they regain their freedom or come under another’s control.
Non-payment does not void a sale. It is perfected upon the meeting of Domesticated animals are possessed if they habitually return to the
the minds. Hence, ownership shall pass from the vendor to the vendee premises of the possessor.
upon the actual or constructive delivery of the thing sold. It does not
constitute unlawful deprivation of personal property. It is a mere Art. 561. One who recovers, according to law, possession unjustly lost,
voidable sale, and unless it is avoided before the execution of the shall be deemed for all purposes which may redound to his benefit, to
second sale, then the second sale is valid. (EDCA v Santos) have enjoyed it without interruption. (466)
Purchaser in good faith of a chattel or movable property is entitled to be
respected and protected in his possession as if he were the true owner This article applies to both possession in good faith as well as to
thereof until a competent court rules otherwise. In the meantime, as the possession in bad faith, but only if beneficial to the possessor (like for
true owner, the possessor in good faith cannot be compelled to purposes of prescription)
surrender possession nor to be required to institute an action for the The recovery of possession must be according to law – through legal
recovery of the chattel. (Edu v Gomez) means; otherwise, the benefit of continuous and uninterrupted
A third party who acquired in good faith a stolen vehicle and registered it possession during the intervening period cannot be invoked.
in his own name cannot lawfully refuse to return it to the true owner and
insist upon reimbursement before delivery. (Aznar v Yapdiangco – TITLE VI - USUFRUCT
stealing equals unlawful deprivation)
The owner of a ring pledged to a pawnshop by one to whom he has CHAPTER ONE: USUFRUCT IN GENERAL
entrusted it to be sold on commission can recover it from the pawnshop.
(Dizon v Suntay) Art. 562. 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. (467)
Art. 560. Wild animals are possessed only while they are under one's
control; domesticated or tamed animals are considered domestic or What is usufruct?
tame if they retain the habit of returning to the premises of the 1. A right to enjoy the property of another with the obligation of preserving
possessor. (465) its form and substance
2. Right to enjoy the property of another temporarily, including both the jus
Possession of animals utendi and jus fruendi, with the owner retaining the jus disponendi
Animals may be: 3. In essence, usufruct is nothing else but simply allowing one to enjoy
1. Wild or animals living in a state of nature independently of and another’s propery
without the aid and care of man (great white shark, ornate
wobbegong, brazilian slug) What are the characteristics of usufruct?
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1. It is a real right of use and enjoyment, (whether registered or not in the Cause More or less passive Active owner or lessor
Registry of Property. Registering will affect and bind third persons) owner who allows the who makes the lessee
2. Of Temporary duration; usufructuary to enjoy enjoy
3. Transmissible; and the object
4. May be constituted on real or personal property, consumable or non- Repairs and taxes Usufructuary to pay Lessee not generally
consumable, tangible or intangible, the ownership of which is vested in under the obligation to
another pay taxes or undertake
repairs
A person cannot create a usufruct over his own property and at the
same time retain ownership of the same
A usufruct is essentially jus in re aliena, and to be a usufructuary of
one’s own property is in law a contradiction in terms and a conceptual Art. 563. Usufruct is constituted by law, by the will of private persons
absurdity expressed in acts inter vivos or in a last will and testament, and by
The essential requisite of usufruct is the right to enjoy the property of prescription. (468)
another Creation of usufruct
The usufructuary is entitled to all the fruits of the property with the Usufruct may e classified according to how it is created into:
obligation to preserve its form and substance 1. Legal, or that created or declared by law
However, the obligation of the usufructuary to preserve is only 2. Voluntary, or that created by will of the parties (an act inter vivos or an
accidental for the law or the will of the parties may modify or even act mortis causa)
eliminate it 3. Mixed or that acquired by prescription
Two classifications based on whether or not impairment of object is
allowed: Art. 564. Usufruct may be constituted on the whole or a part of the
1. Normal, perfect or regular – invovlves non-consumable things fruits of the thing, in favor of one more persons, simultaneously or
which the usufructuary can enjoy without altering the form or successively, and in every case from or to a certain day, purely or
substance, through they may detoriorate or diminish by time or by conditionally. It may also be constituted on a right, provided it is not
use strictly personal or intransmissible. (469)
2. Abnormal, imperfect, irregular or quasi-usufruct – involves things
which would be useless to the usufructuary unless they are Kinds of usufruct defined
consumed or expended, such as money, grain, liquors, etc Usufruct may be
1. As to extent of object
Usufruct Lease a. Total (constituted on the whole of a thing)
Nature of right Real Personal b. Partial (constituted only on a part of a thing)
Creator of right Owner of agent May not be the owner 2. As to number of beneficiaries
a. Simple (only one)
Origin May be by law, by By contract
b. Multiple (several usufructuaries)
contract, by will of
i. Simultaneous, or
testator, or by
ii. Successive
prescription
3. As to effectivity or extinguishment
Extent of enjoyment All the fruits and all the Certain uses only
a. Pure
uses and benefits of the (those stipulated)
b. With a term (may be suspensive or resolutory)
entire property
c. Conditional (may be suspensive or resolutory)
(generally)
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the ordinary expenses of cultivation, for seed, and other similar interest on bonds or securities payable to bearer, each payment due
expenses incurred by the usufructuary. shall be considered as the proceeds or fruits of such right.
The provisions of this article shall not prejudice the rights of Whenever it consists in the enjoyment of benefits accruing
third persons, acquired either at the beginning or at the termination of from a participation in any industrial or commercial enterprise, the date
the usufruct. (472) of the distribution of which is not fixed, such benefits shall have the
same character.
Right of the usufructuary to pending natural and industrial fruits In either case they shall be distributed as civil fruits, and shall
This article does not apply to civil fruits. be applied in the manner prescribed in the preceding article. (475)
For fruits growing at the beginning of usufruct, they belong to the Usufruct constituted on certain rights
usufructuary who is not bound to refund to the owner the expenses of Every benefit or payment shall be considered and distributed as civil
cultivation and production incurred. fruit of such right.
o However, in case the expenses were incurred by innocent third Payment and benefits that accrue after the termination of the usufruct
persons, the usufructuary under Art 443, pursuant to the last belong to the owner.
paragraph of Art 567, has the obligation to pay the expenses The date when the benefits accrue determines whether they should
made. belong to the usufructuary or to the owner. Art 570 applies whether or
For fruits growing at the termination of the usufruct, they belong to the not the date of distribution of benefits is fixed.
owner but he is bound to reimburse the usufructuary the ordinary
cultivation expenses out of the fruits received. Case doctrine
Manresa opines that if at the termination of the usufruct, force majeure A stock dividend is considered civil fruit and belongs to the usufructuary.
should prevent the usufructuary from gathering the fruits, said fruits (Bachrach v Seifert)
shall belong to him and not the naked owner.
Art. 568. If the usufructuary has leased the lands or tenements given in Art. 571. The usufructuary shall have the right to enjoy any increase
usufruct, and the usufruct should expire before the termination of the which the thing in usufruct may acquire through accession, the
lease, he or his heirs and successors shall receive only the servitudes established in its favor, and, in general, all the benefits
proportionate share of the rent that must be paid by the lessee. (473) inherent therein. (479)
Art. 569. Civil fruits are deemed to accrue daily, and belong to the Extent of rights of usufructuary
usufructuary in proportion to the time the usufruct may last. (474) The usufructuary is generally entitled to all the benefits that the thing in
usufruct can give including any increase by accession and servitudes
Lease by the usufrucutary established in his favor.
The usufructuary may lease the property in usufruct to another. Reason is that usufruct covers the entire jus fruendi and jus utendi.
If the usufrcut should expire before the termination of the lease, the
usufructuary or his heirs and successors are entitled only to the rents
corresponding to the duration of the usufruct. The rents for the Art. 572. The usufructuary may personally enjoy the thing in usufruct,
remaining period of the lease belong to the owner. lease it to another, or alienate his right of usufruct, even by a
gratuitous title; but all the contracts he may enter into as such
Art. 570. Whenever a usufruct is constituted on the right to receive a usufructuary shall terminate upon the expiration of the usufruct,
rent or periodical pension, whether in money or in fruits, or in the saving leases of rural lands, which shall be considered as subsisting
during the agricultural year. (480)
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What are the rules? o the damage to the same was caused through the fault of the
1. He must not alter the form or substance of the property, usufructuary.
2. He may remove the improvements only if it is possible to do so If the damage exceeds the value of the improvements, the usufructuary
without damage to the property is liable for the difference as indemnity
3. He has no right to be indemnified for the improvements if he does If the value of the improvements exceeds the damage, he may remove
not exercise his right to remove the portion of the improvements representing the excess in value if this
o He cannot invoke the rights of a possessor in good faith in can be done without injury to the property, otherwise, the excess in
the concept of owner value accrues to the owner.
4. If the improvements cannot be removed without damage, he may
set-off the same against any damage caused by him to the property Art. 581. The owner of property the usufruct of which is held by
(Art 580) another, may alienate it, but he cannot alter its form or substance, or
5. If the usufructuary does not wish to exercise his right of removal, do anything thereon which may be prejudicial to the usufructuary.
the owner cannot compel him to remove the improvements (489)
6. If the usufructuary wishes to exercise his right of removal, the
owner cannot prevent him by offering to reimburse him Rights and obligations of the naked owner
7. The usufructuary’s right to remove the improvements includes the The naked owner may alienate the property in usufruct because the title
right to destroy them provided no damage is caused to the property (dominium directum) remains vested in him.
8. The right to remove is enforceable only against the owner, but not He may construct works, make improvements, or make new plantings
against a purchaser in good faith to whom a clean title has been on the property in usufruct.
issued The alienation by the naked owner cannot affect the usufruct which is
o Right to remove the improvements should be annotated registered or known to the transferee.
on the certificate of title, so that it can be enforced against The naked owner, however, cannot:
third parties o alter the form or substance of the property, or
o do anything thereon which may cause a diminution in the value
Case doctrines of the usufruct, or
By express provision of law, the usufructuaries do not have the right to o be prejudicial to the rights of the usufructuary,
reimbursement for improvements they may have introduced on the otherwise, he shall be liable for damages.
property. If the rule on reimbursement or indemnity were otherwise, then
The naked owner must:
the usufructuary might improve the owner out of his property. (Moralidad
o Respect leases of rural lands by the usufructuary for the
v Pernes)
balance of the agricultural year (Art 572)
o Reimburse him for advances made for extraordinary repairs
(Art 594), and
Art. 580. The usufructuary may set off the improvements he may have o Reimburse him for taxes on the capital (Art 597)
made on the property against any damage to the same. (488)
Right to set-off improvements Art. 582. The usufructuary of a part of a thing held in common shall
This article presupposes that exercise all the rights pertaining to the owner thereof with respect to
o the improvements have increased the value of the property the administration and the collection of fruits or interest. Should the
and co-ownership cease by reason of the division of the thing held in
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common, the usufruct of the part allotted to the co-owner shall belong b. To replace with the young thereof animals that die or are
to the usufructuary. (490) lost in certain cases when the usufruct is constituted on
flock or herd of livestock (Art 591)
Usufruct of part of common property c. To make ordinary repairs (Art 592, par 1)
In case a co-owner gives the usufruct of his share to a person, the d. To notify the owner of urgent extraordinary repairs (Art
usufructuary shall exercise all the rights pertaining to the co-owner 593)
regarding the administration and the collection of the fruits or interest e. To permit works and improvements by the naked owner
from the property not prejudicial to the usufruct (Art 595)
The usufructuary shall be bound by the partition made by the owners of f. To pay annual taxes and charges on the fruits (Art 596)
the undivided property although he took no part in the partition but the g. To pay interest on taxes on capital paid by the naked
naked owner to whom the part held in usufruct has been allotted must owner (Art 597)
respect the usufruct. h. To pay debts when the usufruct is constituted on the
whole of a patrimony (Art 598)
Case doctrine i. To secure the naked owner’s or court’s approval to collect
A partition made by the owners of land is binding upon a person who credits in certain cases (Art 599)
has a usufructuary right in an undivided part of the land, although the j. To notify the owner of any prejudicial act committed by
latter took no part in the partition of the property. third persons (Art 601)
The right of the usufructuary is not affected by the division but it is k. To pay for court expenses and costs regarding usufruct
limited to the fruits of the said part allotted to the co-owner. (Pichay v (Art 602)
Querol) 3. Those at the termination of the usufruct
a. To return the thing in usufruct to the naked owner unless
there is a right of retention (Art 612)
CHAPTER 3
b. To pay legal interest for the time that the usufruct lasts, on
OBLIGATIONS OF THE USUFRUCTUARY the amount spent by the owner for extraordinary repairs
(Art 594) and the proper interest on the sums paid as
Art. 583. The usufructuary, before entering upon the enjoyment of the taxes by the owner (Art 597), and
property, is obliged: c. To indemnify the naked owner for any losses due to his
(1) To make, after notice to the owner or his legitimate representative, negligence or of his transferees. (Art 589-590)
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 Obligation to make an inventory
upon him in accordance with this Chapter. (491) 1. Previous notice to be given.
In the making of the inventory, the concurrence of the naked owner
Classifications of obligations of the usufructuary is not required.
1. Those before the usufruct begins Note that the law says ‘legitimate’, not legal representative
a. Make an inventory of the property, which shall contain an 2. Expenses of inventory
appraisal of the movables and a description of the
Borne by the usufructuary
immovables
3. Form of inventory
b. Give security
Article 583 does not provide for the form of inventory. It may be
2. Those during the usufruct
contained in a private document.
a. Take care of the property (Art 589)
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o to demand that immovables be placed under administration or Articles with artistic or sentimental value may not be sold. The owner
receivership, may demand their delivery to him if he gives security to the usufructuary
o movables be sold, for the payment of the legal interest on their appraised value.
o instruments of credit be registered or deposited in a bank or
public institution Art. 588. After the security has been given by the usufructuary, he shall
o capital or sums in cash and the proceeds of the sale of the have a right to all the proceeds and benefits from the day on which, in
movable be invested in safe securities. accordance with the title constituting the usufruct, he should have
On rights of usufructuary: Until he gives the proper security, the commenced to receive them. (496)
usufructuary cannot enter upon the possession and enjoyment of the
property. He may not collect any matured credits nor invest capital in Retroactive effect of giving security
usufruct without the consent of the owner or judicial authorization. This article applies where the usufructuary who is required to give
The failure to give security does not extinguish the right of usufruct. security gives the security after the commencement of the usufruct
Hence, the usufructuary may alienate his right to the usufruct Failure to give the needed security may deprive the usufructuary of the
This article only speaks of security (it would seem that the failure of the right to enjoy the possession of the property in usufruct
usufructuary to make an inventory, when not excused, does not have However, once the security is give, he is entitled to all the proceeds and
the same effect as when security is not given.) benefits of the usufruct accruing from the day on which he should have
commenced to receive them, from the day the usufruct commenced
Art. 587. If the usufructuary who has not given security claims, by according to its title.
virtue of a promise under oath, the delivery of the furniture necessary
for his use, and that he and his family be allowed to live in a house Art. 589. The usufructuary shall take care of the things given in
included in the usufruct, the court may grant this petition, after due usufruct as a good father of a family. (497)
consideration of the facts of the case.
The same rule shall be observed with respect to implements, Obligation to take care of the property
tools and other movable property necessary for an industry or Includes the making of ordinary repairs needed by thing given in
vocation in which he is engaged. usufruct
If the owner does not wish that certain articles be sold Care required is that of a good father of a family (ordinary diligence)
because of their artistic worth or because they have a sentimental But diligence should not be less than that required by the circumstances
value, he may demand their delivery to him upon his giving security for Usufructuary is liable for damages suffered by the property due to his
the payment of the legal interest on their appraised value. (495) fault and negligence
Sworn undertaking in lieu of security (caucion juratoria) Art. 590. A usufructuary who alienates or leases his right of usufruct
This article applies when the usufructuary who is under obligation to shall answer for any damage which the things in usufruct may suffer
give security cannot afford to do so and no one is willing to give security through the fault or negligence of the person who substitutes him.
for them (498)
For humanitarian considerations, the court may allow the usufructuary
to enjoy the property upon taking an oath to take care of the property Liability for fault or negligence of substitute
and retain it until the termination of the usufruct in lieu of giving the The usufructuary may alienate or lease his right
security However, he shall be liable to the owner for any damage which the
The usufructuary must first ask the naked owner to grant him the rights property in usufruct may suffer through the fault or negligence (also
mentioned, and should the latter refuse, he may resort to the courts fraud or willful acts) of the substitute without prejudice to his right of
action against the latter
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The usufructuary may make them but he is not The owner may even alienate his property or make changes thereon as
entitled to indemnity because they are not needed for long as he doesn’t impair the right of the usufructuary.
the preservation of the thing.
o Those required by the deterioration of or damage to the thing Case doctrine
caused by exceptional circumstances and are indispensable In a case where the usufruct was over the land, and the owner built
for its preservation: buildings on the land, and the usufructuary was demanding the rents of
It is also optional upon the owner or the usufructuary the buildings as part of the usufruct, the Court held that the usufructuary
to make the repairs or not. If the owner should make was not entitled to the rents of the building. The usufructuary’s
the repairs, they shall be at his expense. argument that Article 571 was applicable (right to enjoy any increase by
If made by the usufructuary, he shall have the right to accession) was wrong because such accession is limited to buildings
demand of the owner the payment of the increase in erected on the land of another and does not contemplate a situation
value of the immovable by reason of the repairs at the where the owner himself erected the buildings. (Gaboya v Cui)
termination of the usufruct provided the following are However, the usufructuary was entitled to reasonable rental for the
present: portion of the land occupied by the building because the construction of
He notified the owner of the urgency of the the building had reduced the area of the land and to that extent
repairs diminished the value of the usufruct. However, like said above, since the
The owner failed to make the repairs usufruct was reserved over the land alone, the usufructuary was not
The repair is necessary for the preservation entitled to the rents of the building itslef.
of the property
The usufructuary has the right of retention even after the termination of Art. 596. The payment of annual charges and taxes and of those
the usufruct until he is reimbursed for the increase in value of the considered as a lien on the fruits, shall be at the expense of the
property caused by extraordinary repairs for preservation (Art 612) usufructuary for all the time that the usufruct lasts. (504)
o Increase in value is the difference between the value of the
property before the repairs were made and the value after the Art. 597. The taxes which, during the usufruct, may be imposed directly
repairs were completed on the capital, shall be at the expense of the owner.
If the latter has paid them, the usufructuary shall pay him the proper
Art. 595. The owner may construct any works and make any interest on the sums which may have been paid in that character; and,
improvements of which the immovable in usufruct is susceptible, or if the said sums have been advanced by the usufructuary, he shall
make new plantings thereon if it be rural, provided that such acts do recover the amount thereof at the termination of the usufruct. (505)
not cause a diminution in the value of the usufruct or prejudice the
right of the usufructuary. (503) Liability for charges and taxes
Usufructuary must pay the annual charges and taxes which are
Construction, improvements and plantings by owner imposed, and, therefore, are a lien upon the fruits during the term of the
The owner has the right to do the works mentioned provided the value usufruct.
of the usufruct is not prejudiced Are real property taxes imposed on the fruits or on the capital? On the
Any increase in the value of the usufruct due to the improvements will capital.
inure to the benefit of the usufructuary for he is entitled to the use and Taxies levied on the capital must be paid by the naked owner but he
fruits of the property has right to demand from the usufructuary the proper interest on the
The owner has no right to demand legal interest on his expenses sums paid.
because they were voluntarily incurred by him
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Obligation to notify owner of prejudicial acts by third persons (7) By prescription. (513a)
Art 601 speaks of any act which may be prejudicial to the ‘rights of
ownership’, not merely of the ‘naked ownership’ How is a usufruct extinguished?
A usufructuary has the duty to protect the owner’s interest 1. Death of the usufructuary (unless contrary intention clearly appears)
However, where the act affects possession, although this is in the 2. Expiration of period or fulfillment of condition
usufructuary, he should notify the owner because the latter has an 3. By merger of the usufruct and ownership in the same person
interest in defending it. 4. By renunciation of the usufructuary
The usufructuary is also obliged to notify the owner before making an 5. By the total loss of the thing
inventory of the property and of the need of urgent repairs. 6. Termination of right of owner (refers to the right of the person
constituting the usufruct, not to a condition imposed upon the usufruct
Case doctrine itself)
A usufructuary has the duty to protect the owner’s interests – a usufruct 7. By prescription (acquisitive prescription by the use of a third person, not
gives a right to enjoy the property of another with the obligation of the use by the usufructuary)
preserving its form and substance, unless the title constituting it or the 8. Other causes (annulment or rescission of the contract)
law otherwise provides. (NHA v CA)
Case doctrines
Art. 602. The expenses, costs and liabilities in suits brought with Although the owner expressly authorized the usufructuaries to occupy a
regard to the usufruct shall be borne by the usufructuary. (512) portion of her property “as long as they like”, the usufruct may be
considered terminated by other modes or instances of extinguishment,
Obligation to pay for judicial expenses and cost such as the fulfillment of any resolutory condition provided in the
Since they are in connection with litigation over possession affecting the document creating the usufruct. (Moralidad v Spouses Pernez)
rights of the usufructuary, it is just that they are borne by him. The 30-year limitation on usufruct under the Old Spanish Civil Code
If the litigation involves only the naked ownership, the owner should does not apply to trusts. (Palad v Governor of Quezon Province)
assume them.
Art. 604. If the thing given in usufruct should be lost only in part, the
right shall continue on the remaining part. (514)
CHAPTER 4
EXTINGUISHMENT OF USUFRUCT To extinguish a usufruct, the loss must be total, except as provided in
Art 607 to 609
Art. 603. Usufruct is extinguished: If the loss in only partial, the usufruct continues with the remaining part.
(1) By the death of the usufructuary, unless a contrary But if the partial loss may be so important as to be considered total loss,
intention clearly appears; the courts shall determine.
(2) By the expiration of the period for which it was constituted,
or by the fulfillment of any resolutory condition provided in the title Art. 605. Usufruct cannot be constituted in favor of a town, corporation,
creating the usufruct; or association for more than fifty years. If it has been constituted, and
(3) By merger of the usufruct and ownership in the same before the expiration of such period the town is abandoned, or the
person; corporation or association is dissolved, the usufruct shall be
(4) By renunciation of the usufructuary; extinguished by reason thereof. (515a)
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting
the usufruct;
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The ordinary life of a corporation is 50 years. Unlike a natural person, a may use it subject to the obligation to return the amount to the naked
corporation or association may be extended indefinitely. Public policy owner after his death as provided in article 612.
frowns upon perpetual usufruct.
The fifty-year limitation does not apply to trusts. Where usufruct on building only and it is destroyed
Same rule applies although the usufruct does not cover the land for the
Art. 606. A usufruct granted for the time that may elapse before a third simple reason that the use of the building necessarily involves the use
person attains a certain age, shall subsist for the number of years of the land
specified, even if the third person should die before the period expires, But, the owner is given the preferential right to construct another
unless such usufruct has been expressly granted only in consideration building, occupy the land and make use of the material even against the
of the existence of such person. (516) objection of the usufructuary
The only right of the usufructuary is to receive during the continuance of
Exception here is when the usufruct has been expressly granted only in the usufruct, legal interest on the value of the land of the materials.
consideration of the existence of the third person
Case doctrines
Art. 607. If the usufruct is constituted on immovable property of which A life usufruct constituted on the rentals of the fincas situadas located at
a building forms part, and the latter should be destroyed in any manner a certain place includes the rentals both on the building and the land on
whatsoever, the usufructuary shall have a right to make use of the land which it is erected, because the building can not exist without the land.
and the materials. Hence, the usufruct is not extinguished by the destruction of the
The same rule shall be applied if the usufruct is constituted on building, for under the law usufruct is extinguished only by the total loss
a building only and the same should be destroyed. But in such a case, of the thing subject of the encumbrance. (Vda de Albar v Carandang)
if the owner should wish to construct another building, he shall have a
right to occupy the land and to make use of the materials, being Art. 608. If the usufructuary shares with the owner the insurance of the
obliged to pay to the usufructuary, during the continuance of the tenement given in usufruct, the former shall, in case of loss, continue
usufruct, the interest upon the sum equivalent to the value of the land in the enjoyment of the new building, should one be constructed, or
and of the materials. (517) shall receive the interest on the insurance indemnity if the owner does
not wish to rebuild.
Where usufruct of land and building, and building destroyed Should the usufructuary have refused to contribute to the
The destruction of the building terminates the usufruct on the building insurance, the owner insuring the tenement alone, the latter shall
but no the usufruct on the land receive the full amount of the insurance indemnity in case of loss,
The usufructuary is still entitled to use the land and in place of the saving always the right granted to the usufructuary in the preceding
building, the materials thereof. (Partial loss) article. (518a)
The usufructuary can insist on the use of the land and the materials for
the remainder of the term of the usufruct as the right is granted him by Payment of cost of insurance
law as against the wish of the owner to construct another building. While Neither the owners nor the usufructuary is under obligation to insure the
the usufruct on a building does not expressly include the land on which property in usufruct. Should they do so, and –
it is constructed, the land should be deemed included, for while there o The usufructuary shares with the owner in insuring the
can be land without a building, there can be no building without land. property, the usufructuary shall continue to enjoy the new
The naked owner shall pay legal interest on insurance received if it has building to be constructed, or if the owner does not wish to
not been used in the construction of another building during the whole rebuild, the usufructuary shall receive the legal interest on the
period of the usufruct. But he may, if he desires, relieve himself of this insurance proceeds which will go to the owner.
encumbrance by turning over the money to the usufructuary so that he
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o The usufructuary refuses to contribute to the insurance, and so net proceeds of the same, after deducting the expenses and the
the owner pays it alone, the owner gets the full insurance compensation which may be allowed him for its administration.
indemnity in case of loss, the right of the usufructuary being This is true where the usufructuary has not given any security or the
limited to the legal interest on the value of the land and of the security given is insufficient especially if the owner has no property.
materials. The second part of the provision can hardly apply where there is
The article is silent where the usufructuary alone pays the insurance, or sufficient security for “no considerable injury” could possible be caused
where both share in the payment thereof, as to the proportion of their to the owner.
contribution to the insurance.
Art. 611. A usufruct constituted in favor of several persons living at the
Art. 609. Should the thing in usufruct be expropriated for public use, time of its constitution shall not be extinguished until death of the last
the owner shall be obliged either to replace it with another thing of the survivor. (521)
same value and of similar conditions, or to pay the usufructuary the
legal interest on the amount of the indemnity for the whole period of Usufruct in favor of several persons
the usufruct. If the owner chooses the latter alternative, he shall give Usufruct is extinguished by the death of the usufructuary unless a
security for the payment of the interest. (519) contrary intention appears.
The usufruct is not extinguished until the death of the last survivor. As
Art. 610. A usufruct is not extinguished by bad use of the thing in the usufruct continues, the rights of any usufructuary who dies shall
usufruct; but if the abuse should cause considerable injury to the accrue to the surviving usufructuaries.
owner, the latter may demand that the thing be delivered to him, o The only exception is when the title constituting the usufruct
binding himself to pay annually to the usufructuary the net proceeds of provides otherwise as where the usufruct is constituted in a list
the same, after deducting the expenses and the compensation which and will and testament and the testator makes a contrary
may be allowed him for its administration. (520) provision.
Expropriation of thing in usufruct Art. 612. Upon the termination of the usufruct, the thing in usufruct
The expropriation of the thing does not extinguish the usufruct. shall be delivered to the owner, without prejudice to the right of
Article 609 allows the substitution of the thing by an equivalent thing. retention pertaining to the usufructuary or his heirs for taxes and
If the thing in usufruct is expropriated for public use, the naked owner is extraordinary expenses which should be reimbursed. After the delivery
given the option: has been made, the security or mortgage shall be cancelled. (522a)
o to replace it with another thing of the same value and of
similar conditions, or Obligation of usufructuary to return the thing upon termination of the usufruct
o to pay to the usufructuary the legal interest on the amount of Upon the termination of the usufruct, it is the duty of the usufructuary to
indemnity for the whole period of the usufruct. return the property to the naked owner.
In the latter case, the owner shall give security for the The usufructuary is expressly granted the right of retention until he is
payment of the interest. reimbursed for the amount of taxes levied on the capital and for the
increase in value caused by extraordinary repairs.
Effect of bad use He has no right to reimbursement for useful improvements.
Bad use of the thing in usufruct does not extinguish the right of the
usufructuary whether there is security or not. The usufruct continues.
But if the bad use causes considerable injury to the owner, not to the
thing itself, the owner is given the right to demand that the thing be TITLE VII – EASEMENTS OR SERVITUDES
delivered to him, binding himself to pay annually to the usufructuary the CHAPTER ONE
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EASEMENTS IN GENERAL 5. It is indivisible for it is not affected by the division of the estate between
two or more persons (Art 618)
SECTION ONE – DIFFERENT KINDS OF EASEMENTS 6. It is a right limited by the needs of the dominant owner or estate, without
possession;
Art. 613. An easement or servitude is an encumbrance imposed upon 7. It cannot consist in the doing of an act unless the act is accessory in
an immovable for the benefit of another immovable belonging to a relation to a real easement; and
different owner. 8. It is a limitation on the servient owner’s rights of ownership for the
The immovable in favor of which the easement is established benefit of the dominant owner; and therefore, it is not presumed.
is called the dominant estate; that which is subject thereto, the servient
estate. (530) Easement gives the holder an incorporeal right on the land but grants
no title thereto. Therefore, an acknowledgment of the easement is an
Easement or servitude defined admission that the property belongs to another.
Easement or servitude has been defined as a “real right constituted on
another’s property, corporeal and immovable, by virtue of which the Easement established only on immovable
owner of the same has to abstain from doing or to allow somebody else Easements cannot be imposed on personal property but only on
to do something on his property for the benefit of another thing or immovable (which must be understood in its common and not in its legal
person.” sense).
The definition in this article is not complete, being limited to real What the law treats of are not immovables as defined by the Civil Code
easement. but only those which are so by their nature (are really incapable of being
In view of the next article which refers to personal easement, the term moved) such as lands, roads, buildings, and constructions adhering to
may be defined as an encumbrance imposed upon an immovable for the soil.
the benefit of another immovable belonging to a different owner or for
the benefit of a community or one or more persons to whom the Nature of benefit to dominant estate
encumbered estate does not belong by virtue of which the owner is Easement can exist only when the servient and dominant estates
obliged to abstain from doing or to permit a certain thing to be done on belong to different owners.
his estate (whew.) There can be no easement without a burden on an estate for the benefit
of another immovable belonging to a different owner or of a person or
Easement and servitude distinguished group of persons.
1. It is said that easement refers to the right enjoyed by one, and The dominant estate cannot be the servient estate at the same time.
servitude, the burden imposed upon another. It is not essential that the benefit be very great, it being sufficient that
2. The two terms are used synonymously in the Civil Code although it is there is a determinate use or utility in favor of a dominant estate over an
more partial to easement. estate belonging to another.
The important thing is that it exists and can be exercised.
Characteristics of easement On the other hand, the benefit should not be so great as to be
1. It is a real right but will affect third persons only when duly registered; inconsistent with the general right of ownership of a person, amounting
2. It is enjoyed over another immovable, never on one’s own property; to a taking of his property.
3. It involves two neighboring estates, the dominant to which a right
belongs and the servient upon which an obligation rests;
Easement Lease
4. It is inseparable from the estate to which it is attached and, therefore,
Real right, whether registered or not, Real right only when it is registered,
cannot be alienated independently of the estate (Art 617)
and whether it is real or personal or when its subject is real property
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and the duration exceeds one year a. Voluntary – when the easement is established by the will
Imposed only on real property May involve real or personal or agreement of the parties or by a testator (Art 619);
property b. Legal – when it is imposed by law either for public use or
Limited right to the use of real Limited right to both the possession in the interest of private persons (Art 637-687); or
property of another but without the and use of another’s property c. Mixed – when it is created partly by will or agreement and
right of possession (“without any (“exclusive possession”) partly by law.
exclusive possession or occupation”) 3. As to its exercise
a. Continuous – see Article 615; or
Easement Usufruct b. Discontinuous
Imposed only on real property May involve real or personal 4. As to whether or not its existence is indicated
property a. Apparent; or
Limited to a particular or specific use Includes all the uses and fruits of the b. Non-apparent
of the servient estate property 5. As to the duty of servient owner
Non-possessory right over an Right of possession in an immovable a. Positive – see Article 616; or
immovable or movable b. negative
Not extinguished by the death of the As a rule, extinguished by the death
Real and personal servitudes
dominant owner of the usufructuary
A servitude may be established for the benefit:
Both usufruct and easement are real rights, whether registered or not,
1. of a particular estate and consequently, for its owner; (real or
and are transmissible.
predial)
2. of a person or group of persons without being the owner or owners
Case doctrines
of a dominant estate. (personal)
The power of eminent omain encompasses not only the taking of title to
Unlike a real easement, personal easement does not require two
and possession of the expropriated property but likewise covers even
immovables. An example of a personal easement is a right of way
the imposition of a mere burden upon the owner of the condemned
granted to certain persons and their family, friends, servants, and jeeps.
property. Where the nature of the easement practically deprives the
The servitude is for the benefit alone of the persons enumerated and
owners of the property’s normal beneficial use, notwithstanding the fact
not a predial servitude that inures to the benefit of whoever owns the
that the expropriator only occupies the sub-terrain portion, it is liable to
dominant estate. Hence, the owner of the servient estate may refuse to
pay not merely an easement fee but rather the full compensation for
extend the said easement to the successors-in-interest of the persons
land. (NPC v Ibrahim)
for whose benefit the servitude exists. (Jabonete v Monteverde)
Art. 614. Servitudes may also be established for the benefit of a
Public and private easements
community, or of one or more persons to whom the encumbered estate
does not belong. (531) Personal easements may be:
1. Public, if it is vested in the public at large or in some class of
Classifications of easement indeterminate individuals (like the right of the public to a highway
1. As to recipient of benefit over a land of private ownership)
a. Real – when the easement is in favor of another 2. Private, if it is vested in a determinate individual or certain persons
immovable (Art 613); or (like a right of way vested in the owner of one parcel of land over an
b. Personal – when it is in favor of a community or of one adjoining parcel of land)
more persons (Art 614). Thus, it maybe public or private.
2. As to its source Case doctrines
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When a person is allowed to construct his house on the land of another intervention of any act of man, like the easement of drainage; and it is
to facilitate his gathering of fruits, this would be in the nature of a discontinuous if it is used at intervals and depends on the act of man,
personal easement under Article 614. (Alcantara v Reta) like the easement of right of way. (Bogo-Medellin v CA)
Art. 615. Easements may be continuous or discontinuous, apparent or Apparent and non-apparent easements
non-apparent. For an apparent easement, it is not necessary that its sign be seen; it is
Continuous easements are those the use of which is or may be sufficient if it may be seen or known on inspection.
incessant, without the intervention of any act of man. o The sign or signs may be encountered in the dominant or
Discontinuous easements are those which are used at servient estate, according to the circumstances.
intervals and depend upon the acts of man. An example of a non-apparent easement is a right of way when there is
Apparent easements are those which are made known and are no indication of its existence.
continually kept in view by external signs that reveal the use and A right of way is apparent when there is a visible road or path to show
enjoyment of the same. its exercise.
Nonapparent easements are those which show no external In general, negative easements are non-apparent.
indication of their existence. (532)
Art. 616. Easements are also positive or negative.
Continuous and discontinuous easements A positive easement is one which imposes upon the owner of
For an easement to be continuous, it is not necessary that the use be the servient estate the obligation of allowing something to be done or
incessant; it is sufficient that the use may be so. of doing it himself, and a negative easement, that which prohibits the
o Examples are the right to support a beam on another’s wall owner of the servient estate from doing something which he could
which really exists continuously and the right of aqueduct lawfully do if the easement did not exist. (533)
which may be used only on certain days depending on the
need for water but which is continuous since its use does not Positive and negative easements
depend upon the intervention of man. A positive easement is one which imposes upon the owner of the
An example of discontinuous servitude is the right of way which is used servient estate the obligation of allowing something to be done or of
at intervals because it is physically impossible that man shall continually doing it himself.
poass over the way. o Example: the easement of which the right of way which
The easement itself, whether continuous or discontinuous, exists imposes upon the owner of the servient estate the duty to allow
continuously whether it is being used or not, but its exercise may be the use of said way.
continuous or discontinuous, or there may be no exercise at all. A negative easement is that which prohibits the owner of the servient
The distinction lies in the fact that in continuous easements, the estate from doing something which he could lawfully do if the easement
exercise or enjoyment can be had without the intervention of man while did not exist.
in discontinuous easements, such exercise or enjoyment requires the o Example: easement of light and view whereby the owner of the
intervention of man. servient estate is prohibited from obstructing the passage of
In both easements, the benefit and burden exists from the moment the light. It may also be positive depending upon the manner by
easements are created. which it is exercised.
Case doctrine When the opening or window is made on another’s wall (wall of servient
Easements are either continuous or discontinuous according to the estate) or on a party wall, the easement acquired is positive because
manner they are exercisd, not according to the presence of apparent the owner of the wall allows the servitude to burden his wall.
signs or physical indications of the existence of such easements. Thus,
an easement is continuous if its use is, or may be, incessant without the
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If the window is through one’s own wall (wall of the dominant estate) being annotated on the corresponding certificate of title. A registered
which does not extend over another’s property (servient estate), the owner or subsequent purchaser of registered land holds his certificate of
easement is negative. title free from all encumbrances except only those noted in said
certificate and the statutory liens.
Case doctrines o But if the existence of an easement was known to the
Restrictive covenants are not, strictly speaking synonymous with transferee or grantee of the servient estate, such knowledge is
easements, but a case of servitudes or burdens, sometimes equivalent to registration.
characterized to be negative easements or reciprocal negative
easements. Negative easement is the most common easement created Case doctrines
by covenant or agreement whose effect is to preclude the owner of the A vendee on real property on which a servitude or an easement of right
land from doing an act, which, if no easement existed, he would be of way exists does not acquire the right to close that servitude to
entitled to do. (Fajardo v Freedom to Build) prevent the neighboring estates from using it. (Solid Manila v Bio Hong)
Courts generally view restrictive covenants with disfavor, but still sustain
them where the covenants are reasonable, not contrary to law, or not in Art. 618. Easements are indivisible. If the servient estate is divided
restraint of trade. If the covenant aims to promote aesthetics, health, between two or more persons, the easement is not modified, and each
and privacy or to prevent overcrowding, then the covenant must be of them must bear it on the part which corresponds to him.
sustained. If it is the dominant estate that is divided between two or more
A suit for equitable enforcement of a restrictive covenant can only be persons, each of them may use the easement in its entirety, without
made by one for whose benefit it is intended. It is thus not normally changing the place of its use, or making it more burdensome in any
enforceable by one who has no right nor interest in the land for the other way. (535)
benefit of which the restriction has been imposed. Thus, developer of a
subdivision can enforce restrictions, even as against remote grantees of Quality of indivisibility
lots, only if he retains part of the land. (Fajardo v Freedom) Easement as a right is indivisible.
Accordingly, the partition between two or more persons of either the
servient or dominant estate does not affect the existence of the
Art. 617. Easements are inseparable from the estate to which they servitude which continues in its entirety.
actively or passively belong. (534) If the servient estate is divided, each new owner must bear the
easement but only with respect to the part corresponding to him.
Quality of inherence or inseparability If the dominant estate is divided, each owner can exercise the whole
Servitudes are inseparable from the estate to which they actively or easement over each of the servient estates subject to the condition that
passively belong, being accessory things whose very existence the place of easement shall not be changed and the easement shall not
depends upon the principal thing (immovable). be more burdensome.
Hence, they are intransmissible in the sense that they cannot be o A person entitled to a right of way may do whatever is
alienated or mortgaged independently of the estate. necessary to make it convenient for his use but he cannot
An easement cannot be the object of usufruct because it has no deviate therefrom. The easement is not considered made more
existence independent of the immovable to which it attaches. burdensome by the mere increase in the owners of the
If the dominant estate is alienated, such alienation carries with it also dominant estates.
the easements established in its favor even if they are not annotated as
an encumbrance on the certificate of title. Art. 619. Easements are established either by law or by the will of the
An easement is extinguished or cut-off, however, by the registration of owners. The former are called legal and the latter voluntary easements.
the servient estate under the Torrens system without the easement (536)
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of the adjoining land or tenement to prevent him from aforesaid should be removed before the execution of the deed. This
obstructing the light and view. provision shall also apply in case of the division of a thing owned in
o If the latter consents to such prohibition and the period fixed by common by two or more persons. (541a)
law expires, the easement will be acquired by prescription.
There is no true easement for as long as the right to prohibit its Alienation by same owner of two estates with sign of existence of servitude
exercise exists. This contemplates a situation where two estates between which there
If made through a party wall or on one’s own wall which extends over exists an apparent sign (like a window or road) of an easement belong
the neighboring estate, the easement acquired is positive because the to the same owner.
owner of the latter estate who has a right to close it up allows an What the law requires is that the sign indicates the existence of a
encumbrance on the property. servitude although there is no true servitude there being only one owner
o The period of prescription shall be counted from the time of the In case the owner alienates either of them or both with the result that
opening of the window. the ownership thereof is divided, the easement shall “continue” unless
the contrary has been stipulated in the title of conveyance of either of
Art. 622. Continuous non-apparent easements, and discontinuous them or the sign removed before the execution of the deed
ones, whether apparent or not, may be acquired only by virtue of a title. o The existence of the apparent sign is equivalent to a title if no
(539) objection has been made by the servient owner for an implied
contract that the easement should be constituted is deemed to
Acquisition only by title exist between the new owners
Continuous and apparent easements are the only easements that can o The dominant owner can oppose the owner of the servient
be acquired by prescription because they are the only ones the estate from doing anything which would be inconsistent with
possession of which fulfills two important requisites required by law for his obligation to respect the easement
prescription – possession be public and continuous. If the lots are owned by two different owners, a
The easements mentioned in Art 622 may be acquired by title, not by notarial prohibition should be effected (Atty Abrenica)
prescription because their possession or exercise is either not public This article applies in case of the division of a common property by the
(non-apparent) such as easement of lateral and subjacent support, or it co-owners as the effect is the same as an alienation, or there is only
is public but not continuous or uninterrupted (discontinuous), like a right one estate and a part thereof is alienated.
of way if there is a visible path. This article is not applicable in case the two estates or portions of the
However, for legal purposes, the easement of aqueduct shall be same estate remain or continue to be in the same owner after alienation
considered as continuous and apparent, although it is not really so. or partition
Art. 623. The absence of a document or proof showing the origin of an Case doctrine
easement which cannot be acquired by prescription may be cured by a Where two adjoining estates were formerly owner by just one person
deed of recognition by the owner of the servient estate or by a final who introduced improvements on both, such that the wall of the house
judgment. (540a) constructed on the first estate extends to the wall of the camarin on the
second estate; and at the time of the sale of the first estate, there
Art. 624. The existence of an apparent sign of easement between two existed on the wall of the house, doors and windows (which serve as
estates, established or maintained by the owner of both, shall be passages for light and view), there being no provision in the deed of
considered, should either of them be alienated, as a title in order that sale that the easement of light and view will not be established, the case
the easement may continue actively and passively, unless, at the time is covered by 624.
the ownership of the two estates is divided, the contrary should be The existence of doors and windows on the aforesaid wall of the house
provided in the title of conveyance of either of them, or the sign is equivalent to a title that characterizes its existence.
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But while the law declares that the easement is to “continue”, the preservation of the servitude, but without altering it or rendering it
easement actually arises for the first time only upon alienation of more burdensome.
another estate, inasmuch as before that time there is no easement to For this purpose he shall notify the owner of the servient estate, and
speak of, there being but one owner of both estates. (Gargantos v Tan shall choose the most convenient time and manner so as to cause the
Yanon) least inconvenience to the owner of the servient estate. (543a)
Art. 625. Upon the establishment of an easement, all the rights What are the rights of the dominant owner?
necessary for its use are considered granted. (542) 1. Exercise all the rights necessary for the use of the easement
2. Make on the servient estate all works necessary for the use and
Rights granted by easement preservation of the servitude
All easements carry with them all the rights necessary for their use and 3. Renounce the easement if he desires to exempt himself from the
exercise contribution to necessary expenses
Since these accessory rights or accessory easements exist solely by 4. Ask for mandatory injunction to prevent impairment of his of the
virtue of and for the use of the servitude which can be considered as the easement
principal one, they cease upon the termination of the servitude
What are the obligations of the dominant owner?
Art. 626. The owner of the dominant estate cannot use the easement 1. Cannot alter the easement or render it more burdensome
except for the benefit of the immovable originally contemplated. 2. Notify the servient owner of works necessary for the use and
Neither can he exercise the easement in any other manner than that preservation of the servitude
previously established. (n) 3. Choose the most convenient time and manner in making the necessary
works as to cause the least inconvenience to the servient owner
Immovable to be benefited by easement, and manner of its exercise 4. Contribute to the necessary expenses if there are several dominant
The rule in the first sentence is just because if the owner of the estates in proportion to the benefits derived from the works
dominant estate is allowed to use the servitude for the benefit of other
adjoining lands subsequently acquired, or for others, that would make What are the rights of the servient owner?
the easement more onerous and beyond the intention of the parties 1. Retain the ownership of the portion of the estate on which the easement
If the easement has been constituted in general terms, only the rights is established
which are reasonably necessary and convenient for the use 2. Make use of the easement, unless there is an agreement to the contrary
contemplated and would case the least burden to the servient estate are 3. Change the place or manner of the use of the easement, provided it be
granted. equally convenient
Where the purpose of the easement or the manner of its exercise is
defined by the title creating it, the exercise of the easement must be What are the obligations of the servient owner?
consistent with such purpose or manner 1. Cannot impair the use of the easement
2. Contribute to the necessary expenses in case he uses the easement,
unless there is an agreement to the contrary
SECTION THREE – RIGHTS AND OBLIGATIONS OF THE
OWNERS OF THE DOMINANT AND SERVIENT ESTATES Right of the dominant owner to make necessary works
Right granted by 627 is subject to the following conditions:
Art. 627. The owner of the dominant estate may make, at his own 1. Works shall be at his expense and are necessary for the use and
expense, on the servient state any works necessary for the use and preservation of the servitude
2. They do not alter or render the servitude more burdensome;
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3. The dominant owner, before making the works, must notify the that no injury is caused thereby to the owner of the dominant estate or
servient owner, and to those who may have a right to the use of the easement. (545)
4. They shall be done at the most convenient time and manner as to
cause the lease inconvenience to the servient owner Obligation of servient owner not to impair servitude
The servient owner may abstain from constructing works or performing
Case doctrine any act which will impair, in any manner whatsoever, the use of the
(Goldcrest v Cypress Gardens) servitude.
An injunction lies at the instance of the dominant owner to prohibit the
Art. 628. Should there be several dominant estates, the owners of all of servient owner from impairing the use of the servitude
them shall be obliged to contribute to the expenses referred to in the
preceding article, in proportion to the benefits which each may derive Right of servient owner to change place or manner of easement
from the work. Any one who does not wish to contribute may exempt While the servient estate cannot impair the use of the servitude, he may
himself by renouncing the easement for the benefit of the others. change at his expense the place or manner for its use provided the
If the owner of the servient estate should make use of the following requisites are present:
easement in any manner whatsoever, he shall also be obliged to 1. The place or manner has become very inconvenient to him or
contribute to the expenses in the proportion stated, saving an prevents him from making important works thereon;
agreement to the contrary. (544) 2. He offers another place or manner equally convenient; and
3. No injury is caused by the chance to the dominant owner or to
Obligation to contribute to expenses of necessary works whoever may have a right to the use of the easement.
This article contemplates several dominant estates.
All the owners shall share the expenses in proportion to the benefits Art. 630. The owner of the servient estate retains the ownership of the
derived by each estate from the works and not in proportion to their portion on which the easement is established, and may use the same
respective interests. The benefits shall be presumed equal in the in such a manner as not to affect the exercise of the easement. (n)
absence of any agreement or proof to the contrary. The easement of
right of way ordinarily gives the same benefit Right of servient owner to use easement
An owner may exempt himself from contributing to the expenses by The servient owner preserves his dominion over the portion of his estate
renouncing the easement in favor of the others. on which the easement is established
What about the servient owner? Well, he shall be obliged to contribute This is true although the indemnity consists of the value of the land
to the expense except when there is a stipulation to the contrary, should occupied and the amount of the damage to the servient estate (Art 649)
he make use of the easement in any manner whatsoever. If he bound He may use the easement subject to the condition that he does not
himself to bear the cost of the work, he may free himself form the impair the rights of the dominant owner.
obligation by renouncing his property to the dominant owner (Art 693)
Case doctrine
Art. 629. The owner of the servient estate cannot impair, in any manner When the trial court found that the person’s right to continue to use the
whatsoever, the use of the servitude. septic tank ceased upon the subdivision of the land and its subsequent
Nevertheless, if by reason of the place originally assigned, or sale to different owners who do not have the same interest, the
of the manner established for the use of the easement, the same Supreme Court said that this is contrary to law. (Tanedo v Bernad)
should become very inconvenient to the owner of the servient estate,
or should prevent him from making any important works, repairs or SECTION FOUR – MODES OF EXTINGUISHMENT OF
improvements thereon, it may be changed at his expense, provided he
offers another place or manner equally convenient and in such a way EASEMENTS
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This is particularly true for discontinuous easements such as right A voluntary easement of right of way, like any other contract, could be
of way. extinguished only by mutual agreement or by renunciation of the owner
The waiver must be at least such as may be obviously gathered of the dominant estate. As it is like any other contract, it is generally
from positive acts – if not formal and solemn. The mere refraining effective between the parties, their heirs and assigns, except in case
from claiming the right, without any positive acts imply a real where the rights and obligations arising from the contract are not
waiver, is not sufficient for the purpose although it may constitute transmissible by their nature, or by stipulation, or by provision of law.
non-use. A clear case of implied waiver is the act of covering up a (Unisource v Chung, 2009)
window by the dominant owner and yet this act does not ipso facto If there are easement or other rights appurtenant to a parcel of
extinguish the easement, but only serves to make the starting point registered land which for any reason have failed to be registered, such
for prescription. (Francisco v Paez) easement or rights shall remain so appurtenant notwithstanding such
Where the easement is in favor of a particular group of persons, the failure, and shall be held to pass with the land until cut off or
voluntary renunciation thereof by some of them will not affect the extinguished by the registration of the servient estate or in any other
right of the others. manner. An easement is cut off or extinguished by the registration of the
6. By redemption servient estate under the Torrens system without the easement being
it must be by virtue of an agreement between the owners of the annotated on the corresponding certificate of title, pursuant to Sec 39 of
dominant and servient estates under which the servitude would be Act 496 (Purugganan v Paredes)
extinguished o EXCEPTION: When the person who registers the servient
7. By other causes estate has ACTUAL knowledge that an easement exists.
Annulment, rescission, abandonment, etc (One can’t rely on the face of the title if one has actual
Registration of the servient estate under the Torrens system knowledge of facts which should compel him to do further
without the easement being annotated in the title investigation)
Some case doctrines Art. 632. The form or manner of using the easement may prescribe as
Alienation of the dominant and servient estates to different persons is the easement itself, and in the same way. (547a)
not one of the grounds for extinguishment of the easement. (Tanedo v
Bernad) Prescription of form or manner of using easement
Absent a statement abolishing or extinguishing the easement, then the The form or manner (or mode) of using the easement is different from
easement is continued by operation of law. (Tanedo v Bernad) the easement itself or the right to exercise it
An easement is perpetual in character when it is annotated on all the Both may be lost by prescription
transfer certificates of title issued. Since there is no evidence that would Some legal easements, however, do not prescribe but the form or
point to a mutual agreement between any of the parties with respect to manner of using all easements including legal easements may be lost or
the discontinuance or obliteration of the easement annotated on the acquired by prescription
titles, the continued existence of the easement must be upheld and
respected. (Benedicto v CA) Art. 633. If the dominant estate belongs to several persons in common,
NB: When the easement is a legal easement, it need not be annotated the use of the easement by any one of them prevents prescription with
in the title. A legal easement is one mandated by law, constituted for respect to the others. (548)
public use or for private interest and becomes a continuing property
right. It is inseparable from the estate to which it belongs. So, there’s no Where dominant estate owned in common
need to annotate in the title. (Villanueva v Velasco) Easements are indivisible
Hence, the use by a co-owner inures to the benefit of all the other co-
owners and prevents prescription as to shares of the latter
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In other words, the use by a co-owner is deemed to be used by each Art. 636. Easements established by law in the interest of private
and all the co-owners persons or for private use shall be governed by the provisions of this
Title, without prejudice to the provisions of general or local laws and
CHAPTER 2 ordinances for the general welfare.
These easements may be modified by agreement of the
LEGAL EASEMENTS interested parties, whenever the law does not prohibit it or no injury is
suffered by a third person. (551a)
SECTION ONE – GENERAL PROVISIONS
Governing laws
Art. 634. Easements imposed by law have for their object either public 1. Public legal easements – they are governed primarily by the special
use or the interest of private persons. (549) laws and regulations relating thereto, and by the Civil Code (634-687),
inclusive.
What is legal easement? 2. Private legal easements
Legal easements are easements imposed or mandated by law, and a. By agreement of the interested parties provided it is not
which have for their object: prohibited by law or injurious to a third person
o either public use or b. In the absence of agreement, by the provisions of general
o the interest of private properties and local laws and ordinances for the general welfare; and
They become a continuing property right c. In default of a and b, by articles 634 to 687, inclusive of
the Civil Code.
Kinds of legal easements
1. Public legal easements or those for public or communal use Case doctrine
2. Private legal easements or those for the interest of private persons or Where the land was originally public land, and awarded by free patent
for private use, which include those relating to with a reservation for a legal easement of a right-of-way in favor of the
a. Waters government, just compensation need not be paid for the taking of a part
b. Right of way thereof for public use as an easement of a right of way, unlike if the land
c. Party wall were originally private property. (NIA v CA)
d. Light and view
e. Drainage SECTION TWO – EASEMENTS RELATING TO WATERS
f. Intermediate distances
g. Against nuisance Art. 637. Lower estates are obliged to receive the waters which
h. Lateral and subject support naturally and without the intervention of man descend from the higher
estates, as well as the stones or earth which they carry with them.
Case doctrine The owner of the lower estate cannot construct works which
See Villanueva v Velasco cited in Art 631 will impede this easement; neither can the owner of the higher estate
make works which will increase the burden. (552)
Art. 635. All matters concerning easements established for public or Legal easements relating to waters
communal use shall be governed by the special laws and regulations 1. Natural drainage (637)
relating thereto, and, in the absence thereof, by the provisions of this 2. Drainage of buildings (674)
Title. (550) 3. Easement on riparian banks for navigation, floatage, fishing, salvage,
and towpath (638)
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4. Easement of a dam (639, 647) Estates adjoining the banks of navigable or floatable rivers
5. Easement for drawing water or for watering animals (640-641) are, furthermore, subject to the easement of towpath for the exclusive
6. Easement of aqueduct (642-646) service of river navigation and floatage.
7. Easement for the construction of a stop lock or sluice gate (647) If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
Natural drainage of lands
This article imposes a natural easement upon the lower estates which Public easements on banks of river
are obliged to receive the waters which naturally and without the Banks of rivers and streams, whether they are of public or private
intervention of man descend from the higher estates, as well as the ownership, are subject to easement of public use for:
stones or earth carried by the waters. 1. Navigation
This easement is a continuous one and may be extinguished by non- 2. Floatage
user for the period of 10 years required by law. Thus, if a dike was 3. Fishing
constructed by the servient owner (an act contrary to the easement), the 4. Salvage
action to destroy the dike is barred if brought only after 1 years. 5. With respect to estates adjourning banks of navigable rivers, also to
Duty of servient owner – the owner of the lower estate cannot construct easement of towpath.
works which will impede this easement, such as walls, ditches or If the land is of public ownership, there is no indemnity; if of private
fences, or a dam which blocks the natural flow of the waters. The ownership, the proper indemnity shall first be paid before it may be
dominant owner may demand their removal or destruction and recover occupied. Riparian owners cannot be required to subject their property
damages. The servient owner may construct works to regulate the flow to the easement for the benefit of the public without prior indemnity.
of waters, but not those which will impede the easement. The width of the zone subject to the easement is 3 meters throughout
Duty of dominant owner – the owner of the higher tenement cannot the entire length of the bank along its margin.
make works which will increase the burden. If the waters are the result The easement established by Article 638 does not apply to canals or
of artificial development, or are the overflow from irrigation dams, or esteros.
proceed from industrial establishments recently set up, the owner of the
lower estate shall be entitled to compensation for his loss or damage. Art. 639. Whenever for the diversion or taking of water from a river or
o But the dominant owner is not prohibited from cultivating brook, or for the use of any other continuous or discontinuous stream,
his land or constructing works to regulate the descent of it should be necessary to build a dam, and the person who is to
the waters to prevent erosion to his land and as long as he construct it is not the owner of the banks, or lands which must support
does not impede the natural flow of the waters and it, he may establish the easement of abutment of a dam, after payment
increase the burden of the lower estate, he is not liable for of the proper indemnity. (554)
damages.
Abutment of buttress of a dam
Remember Remman v CA? The case with the pig shit? It also said that tax A person who needs to build a dam to divert or take water from a river
returns per se could not reflect the total amount of damages suffered by a or brook but is not the owner of the banks or lands which must support
party, as income losses from a portion of his property could be offset by any the dam, may be allowed the easement of abutment or buttress of a
profit derived from the rest of said property or from other sources of income. dam (estribo de presa)
He must seek the permission of the owner, and in case of the latter’s
Art. 638. The banks of rivers and streams, even in case they are of refustal, he must secure authority from the proper administrative agency
private ownership, are subject throughout their entire length and within which will conduct the necessary investigation in which all interested
a zone of three meters along their margins, to the easement of public parties are given opportunity to be heard. In establishing the easement,
use in the general interest of navigation, floatage, fishing and salvage. the proper indemnity must be paid.
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Where the construction of a dam is unauthorized, the same can be (1) To prove that he can dispose of the water and that it is
considered a private nuisance and may be lawfully destroyed or sufficient for the use for which it is intended;
removed by the injured landowner or by any persona acting under his (2) To show that the proposed right of way is the most
directions. convenient and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner
Case doctrine determined by the laws and regulations. (558)
An easement of buttress can be imposed by administrative authority
with respect to land lying adjacent to public or private waters; but in Art. 644. The easement of aqueduct for private interest cannot be
such case it is required that an investigation of record shall be made imposed on buildings, courtyards, annexes, or outhouses, or on
before the easement of buttress is decreed. The making of the orchards or gardens already existing. (559)
investigation of record is an essential prerequisite to the exercise of the
power. (Solis v Pujeda) Easement of aqueduct… what is it?!
Easement of aqueduct is the right arising from a forced easement by
Art. 640. Compulsory easements for drawing water or for watering virtue of which the owner of an estate who desires to avail himself of
animals can be imposed only for reasons of public use in favor of a water for the use of said estate may make such waters pass through the
town or village, after payment of the proper indemnity. (555) intermediate estate with the obligation of indemnifying the owner of the
same and also the owner of the estate to which the water may filter or
Art. 641. Easements for drawing water and for watering animals carry flow.
with them the obligation of the owners of the servient estates to allow The easement is provided in Article 642. It gives the right to make water
passage to persons and animals to the place where such easements flow through or under intervening or lower estates.
are to be used, and the indemnity shall include this service. (556)
Requisites?
Drawing water or watering animals The person desiring to make use of the easement must:
This is a personal easement which includes the accessory easement of 1. Prove that he has the capacity to dispose of the water;
passage or right of way of persons and animals to the place where the 2. Prove that the water is sufficient for the use intended;
easement is to be used. 3. Show that the proposed right of way is the most convenient and the
Requisites are: least onerous to third persons; and
1. Must be imposed for reasons of public use; 4. Pay indemnity to the owner of the servient estate.
2. Must be in favor of a town or village; and But where the number of years that have elapsed since the
3. Must be payment of proper indemnity. easement had first come into existence and the subsequent
changes in ownership of lots involved would make it impossible
to present proof of indemnity to the owner of the servient
Art. 642. Any person who may wish to use upon his own estate any estate, this requisite has been deemed to be complied with.
water of which he can dispose shall have the right to make it flow (Salazar v Gutierrez)
through the intervening estates, with the obligation to indemnify their
owners, as well as the owners of the lower estates upon which the The easement cannot be imposed over buildings, courtyards, annexes
waters may filter or descend. (557) or gardens if the easement is for private interest.
Art. 643. One desiring to make use of the right granted in the preceding Case doctrines
article is obliged:
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The Spanish Law of Waters allows the creation of a compulsory Art. 647. One who for the purpose of irrigating or improving his estate,
easement of aqueduct for the purpose of establishing or extending an has to construct a stop lock or sluice gate in the bed of the stream
irrigation system, and there is nothing to the contrary in the Civil Code. from which the water is to be taken, may demand that the owners of
The registration of the servient lot without the corresponding registration the banks permit its construction, after payment of damages, including
of the easement of aqueduct on the title cannot summarily terminate it those caused by the new easement to such owners and to the other
30 years thereafter where the original registered owner of the servient irrigators. (562)
lot allowed the easement to continue in spite of such non-registration.
The least that can be said is that he either recognized its existence as a Construction of a stop lock or sluice gate
compulsory servitude on his estate or voluntarily agreed to its In Article 639, the purpose of building a dam is to divert water from a
establishment and continuance. And subsequent purchasers of the river or brook. Here, the purpose of the construction is to take water for
servient estate cannot capitalize on the absence of annotation on the irrigation, or to improve an estate.
title where they are aware of the existence of the easement and likewise In both cases, the construction is on the estate of another and proper
allowed it to continue for 26 years after they acquired title. (Salazar v indemnity has to be paid. Furthermore, no damage must be caused to
Gutierrez) third persons.
Art. 645. The easement of aqueduct does not prevent the owner of the Art. 648. The establishment, extent, form and conditions of the
servient estate from closing or fencing it, or from building over the servitudes of waters, to which this section refers, shall be governed by
aqueduct in such manner as not to cause the latter any damage, or the special laws relating thereto insofar as no provision therefor is
render necessary repairs and cleanings impossible. (560) made in this Code. (563a)
SECTION THREE – EASEMENT OF RIGHT OF WAY
Right of owner of servient estate
The servient owner may close or fence his estate, or build over the Art. 649. The owner, or any person who by virtue of a real right may
aqueduct so long as no damage is caused to the aqueduct or the cultivate or use any immovable, which is surrounded by other
necessary repairs and cleaning of the same are not rendered immovables pertaining to other persons and without adequate outlet to
impossible. a public highway, is entitled to demand a right of way through the
He can construct works he may deem necessary to prevent damage to neighboring estates, after payment of the proper indemnity.
himself provided he does not impede or impair, in any manner Should this easement be established in such a manner that its
whatsoever, the use of the easement – just like the owner of the lower use may be continuous for all the needs of the dominant estate,
estate on which an easement of natural drainage has been established. establishing a permanent passage, the indemnity shall consist of the
If he does impair, the dominant owner may ask for the removal or value of the land occupied and the amount of the damage caused to
destruction of such works with a right to indemnity for damages. the servient estate.
In case the right of way is limited to the necessary passage for
Art. 646. For legal purposes, the easement of aqueduct shall be the cultivation of the estate surrounded by others and for the gathering
considered as continuous and apparent, even though the flow of the of its crops through the servient estate without a permanent way, the
water may not be continuous, or its use depends upon the needs of the indemnity shall consist in the payment of the damage caused by such
dominant estate, or upon a schedule of alternate days or hours. (561) encumbrance.
This easement is not compulsory if the isolation of the
Easement considered as continuous and apparent immovable is due to the proprietor's own acts. (564a)
For legal purposes, the easement is considered continuous and
apparent and therefore, may be susceptible of acquisitive prescription. Art. 650. The easement of right of way shall be established at the point
least prejudicial to the servient estate, and, insofar as consistent with
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this rule, where the distance from the dominant estate to a public Right of way must be absolutely necessary
highway may be the shortest. (565) The right cannot be claimed merely for the convenience of the owner of
the enclosed estate.
Easement of right of way… DEFINED! Owner must show that the compulsory easement is absolutely
Easement of right of way is the right granted by law to the owner of an necessary for the normal enjoyment of his property. Even if necessary
estate which is surrounded by other estates belonging to other persons but it can be satisfied without imposing the servitude, the same should
and without an adequate outlet to a public highway to demand that he not be imposed.
be allowed a passageway throughout such neighboring estates after The easement can be established for the benefit of a tenement with an
payment of the proper indemnity. inadequate outlet, but not when the outlet is merely inconvenient.
Requisites of the easment (based on de Leon) Isolation must not be due to the claimant’s own act
1. Claimant must be an owner of enclosed immovable or one with real If he constructs a permanent structure and effectively blocks himself out
right from the pubic highway, then he is stupid and he will not be granted an
2. No adequate outlet to a public highway easement.
3. Right of way must be absolutely necessary
4. The isolation must not be due to the claimant’s own act The easement must be established at the point least prejudicial to the
5. The easement must be established at the point least prejudicial servient estate
6. There must be payment of proper indemnity The shortest is not always the least prejudicial.
The criterion of least prejudicial shall be observed although the distance
may not be the shortest or is even the longest.
Claimant must be an owner of enclosed immovable or one with real right In other words, this is the TEST - the one where the way is shortest and
Not only the owner but any person who by virtue of a real right may will cause the least damage should be chosen.
cultivate or use an immovable, may demand a right of way. A o But if these two circumstances do not concur in a single
usufructuary may demand a right of way. tenement, the way which will cause the least damage should
1. A mortgagee is not entitled to demand because it is necessary that be used, even if it would not be the shortest.
the land be cultivated or used by virtue of a right like that of a Between a right of way that will demolish a house and
usufruct another one which will merely cut down a tree (yet is
2. A mere lessee cannot demand the legal servitude of way because a longer route to the highway), the latter shall prevail.
his action is against the lessor who is bound to maintain him in the
The rule is different in eminent domain proceedings wherein the grantee
enjoyment of the lease. However, if the lessee registers the lease in
of the power of eminent domain can choose as he pleases, as long as it
the Registry of Property, it becomes a real right, and the lessee
is not capricious and wantonly injurious.
would then be entitled to demand the right of way.
Proper indemnity
No adequate outlet to a public highway
The right can be acquired only after the proper indemnity has been paid.
Covers cases when there is absolutely no outlet or access, or even
If the passage is of continuous and permanent nature (continuous for all
when there is one, the same is not adequate (like when it’s dangerous,
the needs of the dominant estate), the indemnity consists of the value of
very costly, etc)
the land occupied plus amount of damages caused to the servient
The owner of the servient estate cannot obstruct the use of the
estate; and
easement if the proposed new location for it is farther and is not as
If it is temporary (limited to the necessary passage for the cultivation of
convenient.
the enclosed estate and for the gathering of its crops through the
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servient estate), indemnity consists in the payment of the damage Requisites na naman! (based on Mejorada v Vertudazo)
caused to the servient estate. 1. The estate is surrounded by other immovables and is without
Even if the easement is for a laudable purpose, there is still a need for adequate outlet to a public highway;
compensation. 2. After payment of the proper indemnity
BUT… 3. The isolation was not due to the proprietor’s acts; and
o Where the land was originally public land, and awarded by free 4. The right of way claimed is at a point least prejudicial to the servient
patent and was registered with an OCT and TCT with a estate.
reservation for a legal easement of a right-of-way in favor of One whose land is enclosed by the lands of others at one acquires the
the government, just compensation need not be paid for the right to demand an easement of way to the nearest street or road, but
taking of a part thereof for public use as an easement of a right his failure to do so does not constitute a renunciation of his right nor
of way, unlike if the land were originally private property. (NIA v does the right to demand such easement prescribe under Article 631.
CA) The right to demand a right of way is imprescriptible. (Francisco v Paez)
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for the easement as the consideration for the transfer is presumed to 1. The joining of the isolated estate to another abutting a public road,
include the easement without the indemnity. and
o If the right of way becomes useless for some reason or 2. Opening a new road which gives access to the estate.
another, it is no longer than transferor’s fault. Apply Article 642. The new outlet must be adequate.
o Article 652 is not applicable in case of simple donation The extinguishment is not automatic because the law says that the
because the donor receives nothing for his property. owner of the servient estate may demand that the easement be
If it is the land of the grantor that becomes isolated, he may demand a extinguished, if he so desires. So, the dominant owner cannot ask for
right of way but shall be obliged to pay indemnity unless the purchaser the return of the indemnity, if the servient owner chooses to allow the
agreed to grant right without indemnity. continuation of the easement.
o The donor shall not be liable for indemnity as it is considered a The servient owner is not liable to pay interest on the indemnity as the
tacit condition of the donation. interest is deemed to be payment for the use of the easement.
Art. 654. If the right of way is permanent, the necessary repairs shall be Art. 656. If it be indispensable for the construction, repair,
made by the owner of the dominant estate. A proportionate share of improvement, alteration or beautification of a building, to carry
the taxes shall be reimbursed by said owner to the proprietor of the materials through the estate of another, or to raise therein scaffolding
servient estate. (n) or other objects necessary for the work, the owner of such estate shall
be obliged to permit the act, after receiving payment of the proper
Responsibility for repairs and taxes indemnity for the damage caused him. (569a)
This applies if the right of way is permanent.
The servient owner retains ownership of the passageway; hence, he Temporary easement of right of way
pays all the taxes. This applies to a right of way which is essentially temporary or
The dominant owner is liable for the necessary repairs and the transitory.
proportionate share of the taxes paid by the servient owner, meaning It is sufficient that great inconvenience, difficulty, or expense would be
the amount of taxes corresponding to the portion on which the encountered if the easement was not granted.
easement is established. Temporary easement is allowed only after the payment of the proper
indemnity.
Art. 655. If the right of way granted to a surrounded estate ceases to be
necessary because its owner has joined it to another abutting on a Case doctrine
public road, the owner of the servient estate may demand that the The installation of electric power lines is a permanent easement not
easement be extinguished, returning what he may have received by covered by Article 656. Article 656 deals only with the temporary
way of indemnity. The interest on the indemnity shall be deemed to be easement of passage. (Preysler, Jr v CA)
in payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened Art. 657. Easements of the right of way for the passage of livestock
giving access to the isolated estate. known as animal path, animal trail or any other, and those for watering
In both cases, the public highway must substantially meet the places, resting places and animal folds, shall be governed by the
needs of the dominant estate in order that the easement may be ordinances and regulations relating thereto, and, in the absence
extinguished. (568a) thereof, by the usages and customs of the place.
Without prejudice to rights legally acquired, the animal path
Extinguishment of compulsory easement of right of way shall not exceed in any case the width of 75 meters, and the animal trail
This applies to compulsory easement of right of way. that of 37 meters and 50 centimeters.
The two causes of extinguishment are:
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Whenever it is necessary to establish a compulsory easement The shares of the co-owners cannot Shares of the co-owners can be
of the right of way or for a watering place for animals, the provisions of be physically segregated but they divided or separated physically.
this Section and those of Articles 640 and 641 shall be observed. In can be physically identified. Before such division, a co-owner
this case the width shall not exceed 10 meters. (570a) cannot point to any definite portion
of the property as belonging to him.
Right of way for the passage of livestock, watering places No such limitation None of the co-owners may use the
The easements shall be governed by the ordinances, regulations, and in community property for his exclusive
their absence, usages and customs of the place. benefit
Animal path max width: 75 meters Any owner may free himself from Partial renunciation is allowed
Animal trail max width: 37.5 meters contributing to the cost of repairs
For drawing waters and for watering animals max width: 10 meters and construction of a party wall by
o In the last case, they can be imposed only for reasons of public renouncing all his rights thereto.
use in favor of a town or barrio and only after payment of the
proper indemnity.
Art. 659. The existence of an easement of party wall is presumed,
SECTION FOUR – EASEMENT OF PARTY WALL 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
Art. 658. The easement of party wall shall be governed by the common elevation;
provisions of this Title, by the local ordinances and customs insofar as (2) In dividing walls of gardens or yards situated in cities,
they do not conflict with the same, and by the rules of co-ownership. towns, or in rural communities;
(571a) (3) In fences, walls and live hedges dividing rural lands. (572)
What’s an easement of party wall? When is the existence of a party wall presumed?
1. In dividing walls of adjoining buildings up to the point of common
It refers to all those mass of rights and obligations emanating from the
elevation;
existence and common enjoyment of wall, fence, enclosures or hedges,
2. In dividing walls of gardens or yards situated in cities, towns, or in rural
by the owners of adjacent buildings and estates separated by such
communities; or
objects.
3. In fences, walls and live hedges dividing rural lands.
What is a party wall, what is its nature?
The legal presumption is juris tantum; it may be rebutted by a title or
A party wall is a common wall which separates two estates, built by
exterior sign or any other proof showing that the entire wall in
common agreement at the dividing line such that it occupies a portion of
controversy belongs exclusively to one of the adjoining property owners.
both estates on equal parts.
It is a kind of forced co-ownership in which the parties are prt-owners.
Case doctrine
Each owner owns part of the wall but it cannot be separated from the
A wall separating two adjoining buildings, built on the land on which one
other portions belonging to the others.
of these buildings stands, is not a party wall when there is a drain along
An owner may use a party wall to the extent of the ½ portion on his its top to carry away the water from the roof and eaves of the building
property. Not all common walls or walls in co-ownership are party walls. belonging to the owner of the land on which the wall is erected; and also
(A wall built on a co-owned lot is a common wall, not a party wall.) when a part of the wall is covered by the roof of the said building, the
construction of which demonstrates that the wall belongs exclusively to
Party Wall Co-ownership the owner of the building of which it forms part. (Lao v Heirs of Alburo)
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He shall bear all the expenses of repairs and work necessary to prevent Art. 666. Every part-owner of a party wall may use it in proportion to
any damage which the demolition may cause to the party wall. the right he may have in the co-ownership, without interfering with the
common and respective uses by the other co-owners. (579a)
Art. 664. Every owner may increase the height of the party wall, doing
at his own expense and paying for any damage which may be caused Proportional use of party wall
by the work, even though such damage be temporary. If Tweet owns 2/3 of the party wall and Plurk owns 1/3, Tweet may use
The expenses of maintaining the wall in the part newly raised the wall (like inserting a beam) up to 2/3 of its thickness, and Plurk can
or deepened at its foundation shall also be paid for by him; and, in do the same up to 1/3.
addition, the indemnity for the increased expenses which may be
necessary for the preservation of the party wall by reason of the SECTION FIVE – EASEMENT OF LIGHT AND VIEW
greater height or depth which has been given it.
If the party wall cannot bear the increased height, the owner Art. 667. No part-owner may, without the consent of the others, open
desiring to raise it shall be obliged to reconstruct it at his own expense through the party wall any window or aperture of any kind. (580)
and, if for this purpose it be necessary to make it thicker, he shall give
the space required from his own land. (577) WHAT IS AN EASEMENT OF LIGHT?!?!
Easement of light (jus luminum) is the right to admit light from the
Art. 665. The other owners who have not contributed in giving neighboring estate by virtue of the opening of a window or the making of
increased height, depth or thickness to the wall may, nevertheless, certain openings.
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 WHAT IS AN EASEMENT OF VIEW?!?!
for its increased thickness. (578a) Easement of view (jus prospectus) is the right to make openings or
windows, to enjoy the view through the estate of another and the power
Increase the height of party wall! to prevent all constructions or works which would obstruct such view or
An owner is given the right to increase the height of a party wall subject make the same difficult.
to the following conditions: It necessarily includes the easement of light.
1. He must do so at his own expense;
2. He must pay for any damage which may be caused thereby even if Making of opening through a party wall
damage is temporary; A part-owner cannot exercise an act which implies full ownership of the
3. He must bear the cost of maintaining the portion added; and wall by making use of all its thickness.
4. He must pay the increased cost of preservation of the wall.
Remember, a window in the dividing wall of buildings is an exterior sign
He shall be obliged to reconstruct the wall at his expense if it is which rebuts the presumption that the wall is a party wall. One part-
necessary so that the wall can bear the increased height, and if owner may not, therefore, make any window or opening of any kind thru
additional thickness is required, he shall provide the space therefore a party wall without the consent of the others.
from his own land.
The other owners cannot object to the work as long as the above Art. 668. The period of prescription for the acquisition of an easement
conditions are complied with. of light and view shall be counted:
The owner who makes the addition acquires ownership unless the other (1) From the time of the opening of the window, if it is through
owners pay proportionately the value of the work at the time of the a party wall; or
acquisition (not the construction) and of the land used for the wall’s (2) From the time of the formal prohibition upon the proprietor
increased thickness. of the adjoining land or tenement, if the window is through a wall on
the dominant estate. (n)
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ripens into title when the specified time has elapsed without opoosition
Prescriptive period for acquisition of easement of light and view on the part of the owner of the wall. (Cortes v Yu Tibo)
The easement of light and view is either positive or negative.
When is it positive?
o It is considered positive if made through a party wall or even if Art. 669. When the distances in Article 670 are not observed, the owner
made on one’s own wall, if the window is on a balcony or of a wall which is not party wall, adjoining a tenement or piece of land
projection extending over the adjoining property. belonging to another, can make in it openings to admit light at the
o When a window is opened through a party wall, an apparent height of the ceiling joints or immediately under the ceiling, and of the
and continuous easement is created from the time of such size of thirty centimeters square, and, in every case, with an iron
opening. But there is no true easement as long as the right to grating imbedded in the wall and with a wire screen.
prevent its use exists. Nevertheless, the owner of the tenement or property adjoining
o The adjoining owner can order the window closed within 10 the wall in which the openings are made can close them should he
years from the time of the opening of the window. acquire part-ownership thereof, if there be no stipulation to the
When is it negative? contrary.
o It is considered negative if the window is made through a wall He can also obstruct them by constructing a building on his
land or by raising a wall thereon contiguous to that having such
on the dominant estate.
openings, unless an easement of light has been acquired. (581a)
o The 10-year period of prescription commences from the time of
the formal prohibition (instrument acknowledged by a notary
Openings at height of ceiling joists to admit light
public) upon the adjoining owner.
When the wall is not a party wall, the owner may make an opening for
o Before the expiration of the prescriptive period, the window
the purpose of admitting light and air, but not for view. The restrictions
exists by mere tolerance of the adjoining owner who always
are the following:
retains the right to have it closed or to build an obstruction,
1. The size must not exceed 30 cm square;
although the opening was made more than 10 years after he
2. The opening must be at the height of the ceiling joists or
decided to exercise his right.
immediately under the ceiling;
The opening by Xyzal was made in 1990 but he made
3. There must be an iron grating imbedded in the wall; and
a formal notarial demand prohibiting Yeeyoo to
4. There must be a wire screen.
obstruct the view only in 1994, Yeeyoo may still
When the wall becomes a party wall, a part-owner can order the closure
demand the closure of the window in 2001.
of the opening because no part-owner may make an opening through a
party wall without the consent of the others. It can also obstruct the
Case doctrines
opening unless an easement of light has been acquired by prescription,
When the construction of windows and balconies does not constitute an
in which case the servient owner may not impair the easement.
actual invasion of the rights of another, but is a lawful exercise of an
inherent right, the easement of light and view is negative. (Fabie v
Case doctrine
Lichauco)
If a house consists of more than one story, each story may have the
When a window is opened in a party wall, the express or implied
same openings which are provided by law for one house. The purpose
consent of the part owner affords a basis for the acquisition of a
of the law is to provide light to the rooms and it is evident that the rooms
prescriptive title.
of the lower stories have a much need for light as those of the top story.
When a window is opened in the wall of a neighbor, prescription (Choco v Santamaria))
commences to run from the date of the opening of the windows and
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When the house has been built, with two meters of the dividing line (Art o It’s a negative easement because the window is through a wall
670), no other windows than those provided in this article may be of the dominant estate and so prescription may still be
opened in its walls. (Saez v Figueras) acquired after 10 years from the time of notarial prohibition.
Art. 670. No windows, apertures, balconies, or other similar projections Art. 672. The provisions of Article 670 are not applicable to buildings
which afford a direct view upon or towards an adjoining land or separated by a public way or alley, which is not less than three meters
tenement can be made, without leaving a distance of two meters wide, subject to special regulations and local ordinances. (584a)
between the wall in which they are made and such contiguous
property. Where buildings separated by a public way or alley
Neither can side or oblique views upon or towards such The distance in 670 is not compulsory where there is a public way or
conterminous property be had, unless there be a distance of sixty alley provided that it is not less than 3 meters wide.
centimeters.
The nonobservance of these distances does not give rise to Case doctrine
prescription. (582a) A private alley opened to the use of the general public falls within the
provision of Article 672.
Art. 671. The distance referred to in the preceding article shall be
measured in cases of direct views from the outer line of the wall when Art. 673. Whenever by any title a right has been acquired to have direct
the openings do not project, from the outer line of the latter when they views, balconies or belvederes overlooking an adjoining property, the
do, and in cases of oblique view from the dividing line between the two owner of the servient estate cannot build thereon at less than a
properties. (583) distance of three meters to be measured in the manner provided in
Article 671. Any stipulation permitting distances less than those
Direct and oblique views prescribed in Article 670 is void. (585a)
Article 760 requires a distance of:
o For direct view, 2 meters Where easement of direct view has been acquired
o For oblique view, 60 cm The word “title” as used in Article 673 refers to any of the modes of
Article 761 provides the manner of measuring the distance. acquiring easements (contract, will, donation or prescription).
o For direct view – from the outer line of the wall when the Whenever the easement of direct view has been acquired by such title,
openings do not project; from the outer line of the openings there is created a true easement, the owner of the servient estate
when they do project cannot build thereon at less than a distance of 3 meters from the
o For oblique view – from the dividing line boundary line.
An owner can build within the minimum distance or even up to the The distance may be increased or decreased by stipulation of the
dividing line provided no window is opened except as provided in Article parties provided that in case of decrease, the minimum distance of 2
669. meters or 60 cm in 670 must be observed. If not, then it’s void.
When windows are opened, without observing the required legal
distances, the adjoining owner has a right to have them closed.
The non-observance of the distances does not give rise to prescription. SECTION SIX – DRAINAGE OF BUILDINGS
o The mere opening of the windows in violation of Article 770
does not give rise to the servitude by prescription. Art. 674. The owner of a building shall be obliged to construct its roof
or covering in such manner that the rain water shall fall on his own
land or on a street or public place, and not on the land of his neighbor,
even though the adjacent land may belong to two or more persons, one
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of whom is the owner of the roof. Even if it should fall on his own land, The legal easement of drainage may be demanded subject to the
the owner shall be obliged to collect the water in such a way as not to following conditions:
cause damage to the adjacent land or tenement. (586a) 1. There must be no adequate outlet to the rainwater because the
yard or court of a house is surrounded by other houses;
What is an easement of drainage of buildings? 2. The outlet to the water must be at the point where egress is
Easement of drainage of buildings is the right to divert or empty the rain easiest, and establishing a conduit for drainage; and
waters from the one’s own roof or shed to the neighbor’s estate either 3. There must be payment of proper indemnity.
drop by drop or through conduits.
SECTION 7. – INTERMEDIATE DISTANCES AND WORKS
Rainwater not to fall on land of another FOR CERTAIN CONSTRUCTIONS AND PLANTINGS
This article does not really create a servitude, it merely regulates the
use of one’s own property by imposing on him the obligation to collect Art. 677. No constructions can be built or plantings made near fortified
its rain waters so as not to cause damage to his neighbors, even if he places or fortresses without compliance with the conditions required in
be a co-owner of the latter. special laws, ordinances, and regulations relating thereto. (589)
It’s an exemption to Article 637 which obliges lower estates to receive
the waters which naturally flow from higher estates. Constructions and plantings near fortified places
This article establishes an easement in favor of the State.
Art. 675. The owner of a tenement or a piece of land, subject to the
easement of receiving water falling from roofs, may build in such Art. 678. No person shall build any aqueduct, well, sewer, furnace,
manner as to receive the water upon his own roof or give it another forge, chimney, stable, depository of corrosive substances, machinery,
outlet in accordance with local ordinances or customs, and in such a or factory which by reason of its nature or products is dangerous or
way as not to cause any nuisance or damage whatever to the dominant noxious, without observing the distances prescribed by the regulations
estate. (587) and customs of the place, and without making the necessary protective
works, subject, in regard to the manner thereof, to the conditions
Easement to receive falling rainwater prescribed by such regulations. These prohibitions cannot be altered
This article deals not with a legal or compulsory easement but with a or renounced by stipulation on the part of the adjoining proprietors.
voluntary easement to receive rain water falling from the roof of an In the absence of regulations, such precautions shall be taken
adjoining building. as may be considered necessary, in order to avoid any damage to the
It is an application of Article 629. neighboring lands or tenements. (590a)
Art. 676. Whenever the yard or court of a house is surrounded by other Construction of aqueduct, well, sewer, etc
houses, and it is not possible to give an outlet through the house itself Constructions which by reason of their nature or products are
to the rain water collected thereon, the establishment of an easement dangerous or noxious must comply with the distances prescribed by
of drainage can be demanded, giving an outlet to the water at the point local regulations and customs of the place. Necessary protective works
of the contiguous lands or tenements where its egress may be easiest, must also be built/done by the owner to avoid damage to neighbors.
and establishing a conduit for the drainage in such manner as to cause The prohibitions cannot be altered by stipulations because of the
the least damage to the servient estate, after payment of the property underlying public policy of safety.
indemnity. (583) Whut up, ang layo mo na! Go go go!
Easement giving outlet to rainwater where house surrounded by other
houses
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Art. 679. No trees shall be planted near a tenement or piece of land Kung mahulog yung mangga ni Jhunjhun sa lote ko, akin na ba yung
belonging to another except at the distance authorized by the mangga?
ordinances or customs of the place, and, in the absence thereof, at a Yes. But the falling must occur naturally. So I have no right to pick fruits
distance of at least two meters from the dividing line of the estates if still on branches that extend over my land.
tall trees are planted and at a distance of at least fifty centimeters if This is not based on occupation nor accession, but by operation of law.
shrubs or small trees are planted.
Every landowner shall have the right to demand that trees SECTION 8. – EASEMENT AGAINST NUISANCE
hereafter planted at a shorter distance from his land or tenement be
uprooted. Art. 682. Every building or piece of land is subject to the easement
The provisions of this article also apply to trees which have which prohibits the proprietor or possessor from committing nuisance
grown spontaneously. (591a) through noise, jarring, offensive odor, smoke, heat, dust, water, glare
and other causes.
Planting of trees (wow!)
This article establishes a negative easement. Art. 683. Subject to zoning, health, police and other laws and
It provides the minimum distance of trees and shrubs from the boundary regulations, factories and shops may be maintained provided the least
line. possible annoyance is caused to the neighborhood.
They shall be regulated first by local ordinances; and then by the
customs of the place; and in default of both, this interesting article. The Code considers the easement against nuisance as negative
In case of violation, a landowner shall have the right to demand the because the proprietor or possessor is prohibited to do something which
uprooting of the tree or shrub even if it has grown spontaneously. he could lawfully do were it not for the existence of the easement.
However, a nuisance involves any act of ormission which is unlawful.
Art. 680. If the branches of any tree should extend over a neighboring So, these two articles are more of a restriction on the right of ownership
estate, tenement, garden or yard, the owner of the latter shall have the than a true easement.
right to demand that they be cut off insofar as they may spread over
his property, and, if it be the roots of a neighboring tree which should SECTION 9. - Lateral and Subjacent Support (n)
penetrate into the land of another, the latter may cut them off himself
within his property. (592) Art. 684. No proprietor shall make such excavations upon his land as
to deprive any adjacent land or building of sufficient lateral or
Intrusions of branches or roots into neighboring estates subjacent support.
In case of branches, the adjoining owner must first demand that they be
cut-off by the tree owner insofar as they spread over the former’s Art. 685. Any stipulation or testamentary provision allowing
property. If the tree owner refuses, he may ask authority from the court. excavations that cause danger to an adjacent land or building shall be
As to the roots, he may cut them off himself if they penetrate into his void.
land without the necessity of giving notice to the tree owner, because,
by right of accession, he has acquired ownership over them. It actually Art. 686. The legal easement of lateral and subjacent support is not
constitutes a direct invasion on his land (grabe naman.) only for buildings standing at the time the excavations are made but
also for constructions that may be erected.
Art. 681. Fruits naturally falling upon adjacent land belong to the owner
of said land. (n) Art. 687. Any proprietor intending to make any excavation
contemplated in the three preceding articles shall notify all owners of
adjacent lands.
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the usufructuary, any servitudes which will not injure the right of
Proprietor prohibited from making dangerous excavations usufruct. (595)
Support is lateral when the supported and the supporting lands are
divided by a vertical plane. Where property held in usufruct
Support is subjacent when the supported land is above and the The owner of property in usufruct may create easements thereon
supporting land is beneath it. without the consent of the usufructuary provided the rights of the latter
An owner, by virtue of his surface right, may make excavations on his are not impaired.
land, but his right is subject to the limitation in Article 684 that he shall
not deprive any adjacent land or building of sufficient lateral or Art. 690. Whenever the naked ownership of a tenement or piece of land
subjacent support. belongs to one person and the beneficial ownership to another, no
Any stipulation or testamentary provision allowing excavations that perpetual voluntary easement may be established thereon without the
violate Article 684 is void. The limitation applies not only to existing consent of both owners. (596)
buildings but also to future constructions.
The notice required in Article 687 is mandatory except where there is Creation of perpetual voluntary easement
actual knowledge of the proposed excavation. A usufructuary may impose on the estate held in usufruct a temporary
The adjacent owner is entitled to injunctive relief and to damages for easement.
violation of the provisions. Where the naked ownership and the beneficial ownership of the estate
belong to different persons, and the easement is perpetual (permanent
CHAPTER 3 right of way, etc), the consent of both the naked owner and the
beneficial owner is required.
VOLUNTARY EASEMENTS
Art. 688. Every owner of a tenement or piece of land may establish Art. 691. In order to impose an easement on an undivided tenement, or
thereon the easements which he may deem suitable, and in the manner piece of land, the consent of all the co-owners shall be required.
and form which he may deem best, provided he does not contravene The consent given by some only, must be held in abeyance
the laws, public policy or public order. (594) until the last one of all the co-owners shall have expressed his
conformity.
Owner of land may constitute easement But the consent given by one of the co-owners separately from
Since easement involves an act of strict dominium, only the owner or at the others shall bind the grantor and his successors not to prevent the
least one acting in his name and under his authority, may establish a exercise of the right granted. (597a)
voluntary easement.
However, a beneficial owner may establish a temporary easement Imposition of easement on undivided property
consistent with his right as such and subject to termination upon the The creation of a voluntary easement on property owned in common
extinguishment of the usufruct. requires the unanimous consent of all the co-owners, because it
involves an act of alteration and not merely an alienation of an ideal
Voluntary easements not contractual share of a co-owner.
Voluntary easements are not contractual in nature, they constitute the The consent may be given separately or successively.
act of the owner. Once consent is given by a co-owner, the same is binding upon him and
his successors unless his consent was vitiated.
Art. 689. The owner of a tenement or piece of land, the usufruct of After the consent of the last of all of the co-owners has been secured, it
which belongs to another, may impose thereon, without the consent of is not necessary for him to give again his consent.
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NUISANCE
Art. 692. The title and, in a proper case, the possession of an easement
acquired by prescription shall determine the rights of the dominant Art. 694. A nuisance is any act, omission, establishment, business,
estate and the obligations of the servient estate. In default thereof, the condition of property, or anything else which:
easement shall be governed by such provisions of this Title as are (1) Injures or endangers the health or safety of others; or
applicable thereto. (598) (2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
Rules governing voluntary easements…ano nga ba? (4) Obstructs or interferes with the free passage of any public
1. If created by title, such as contract, will, etc, then by such title; highway or street, or any body of water; or
2. If created by prescription, by the form and manner of possession of the (5) Hinders or impairs the use of property.
easement (see Art 632); and
3. In default of the above, by the provisions of the Civil Code on easement. What is the statutory definition of nuisance?
Nuisance is used to refer either to the harm caused or that which
Art. 693. If the owner of the servient estate should have bound himself, causes harm, or both
upon the establishment of the easement, to bear the cost of the work Negligence is not an essential ingredient of a nuisance but to be liable
required for the use and preservation thereof, he may free himself from for a nuisance, there must be resulting injury to another in the
this obligation by renouncing his property to the owner of the enjoyment of his legal rights.
dominant estate. (599) Anything which: (IASOH)
1. Injures or endangers the health or safety of others
Where servient owner bound himself to bear cost of maintenance of 2. Annoys or offends the senses
easement 3. Shocks, defies or disregards decency or morality
This article applies only where the owner of the servient estate bound 4. Obstructs or interferes with the free passage of any public highway
himself to bear the cost of the work required for the use and or street, or any body of water
preservation of the easement 5. Hinders or impairs the use of property.
He is bound to fulfill the obligation he has contracted in the same way
that such an owner, should he make use of the easement, is bound to Distinguish nuisance from trespass
contribute to the works necessary for the use and preservation of the Nuisance consists of a use of one’s own property in such a manner as
servitude. to cause injury to the property or other right or interest of another, and
The servient owner may free himself from his obligation by renouncing generally results from the commission of an act beyond the limits of the
or abandoning his property to the dominant owner. property affected
o The renunciation need not be over the whole servient Trespass is a direct infringement of another’s right of property
tenement, but only on the portion thereof affected by the Where there is no actual physical invasion of the plaintiff’s property, the
easement (right of way, etc). however, if the easement affects cause of action is for nuisance rather than trespass. An encroachment
the entire servient estate (like natural drainage), then the upon the space about another’s land but not upon the land itself is a
renunciation must be total. nuisance, and not a trespass.
o In any case, it cannot be tacit or implied; it must follow the form In trespass, the injury is direct and immediate; in nuisance, it is
required by law for transmission of ownership of real property. consequential.
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Nuisance per se Nuisance per accidens to exercise ordinary care to prevent children from playing therewith or
In terms of The thing becomes a Depends upon its location and resorting thereto, is liable to a child of tender years who is injured
proof nuisance as a matter of surroundings, the manner of thereby, even if the child is technically a trespasser in the premises.
law its conduct or other The reason is that the condition or appliance in question although its
Its existence need only be circumstances. danger is apparent, is so enticing to children of tender years as to
proved in any locatlity, Proof of the act and its induce them to approach or use it.
without showing specific consequences is necessary. The attractiveness is an implied invitation to such children
damages, and the right to It must be shown by evidence EXCEPTION: is not applicable to bodies of water, artificial or natural in
relief is established by to be a nuisance under the the absence of some unusual condition or artificial feature other than
averment and proof of the law. the mere water and its location.
mere act. o A swimming pool is not a nuisance.
In terms of May be summarily abated Even the municipal o A tank of water from an ice plant is not a nuisance as well.
action under the undefined law of authorities, under their power (Hidalgo case)
necessity to declare and abate o What if Jollibee is in the middle of the swimming pool?!
nuisances, would not have the Exercise due diligence. Tanggalin yung bubuyog na
right to compel the abatement yan!
of a particular thing or act as a
nuisance without reasonable Art. 696. Every successive owner or possessor of property who fails or
notice to the person alleged to refuses to abate a nuisance in that property started by a former owner
be maintaining or doing the or possessor is liable therefor in the same manner as the one who
same at the time and place of created it.
hearing before a tribunal
whether such a thing Generally, only the creator of a nuisance is liable for the damge
constitutes a nuisance resulting therefrom.
However, since the injurious effect of a nuisance is a continuing one,
Case doctrines every successive owner or possessor of property constituting a
The operation of bus terminals is a legitimate business which, by itself, nuisance who fails or refuses to abate it, has the same liability as the
cannot be said to be injurious to the rights of property, health, or comfort original owner.
of the community. Unless a thing is nuisance per se, it may not be But of course, the new owenr must have actual knowledge of the
abated via an ordinance, without judicial proceedings. (Lucena v JAC nuisance.
Liner)
The abatement of a nuisance without judicial proceedings is possible Art. 697. The abatement of a nuisance does not preclude the right of
only if it is a nuisance per se. A gas station is not a nuisance per se or any person injured to recover damages for its past existence.
one affecting the immediate safety of persons and property. Hence, it
cannot be closed down or transferred summarily to another location. Are the remedies exclusive?
(Parayno v Jovellanos) No.
Injury must not be merely perceived, but must be factual. (Parayno) The action to abate nuisance and the action to recover damages are
distinct remedies either or both of which the plaintiff may pursue at his
What is the doctrine of attractive nuisance? election.
One who maintains on his premises dangerous instrumentalities or The two remedies are concurrent and not exclusive.
appliances of a character likely to attract children in play, and who fails
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the thing which constitutes the same, without committing a breach of b. The procedure for extrajudicial abatement of public
the peace, or doing unnecessary injury. But it is necessary: nuisance prescribed in 704 is complied with
(1) That demand be first made upon the owner or possessor of the
property to abate the nuisance; Art. 707. A private person or a public official extrajudicially abating a
(2) That such demand has been rejected; nuisance shall be liable for damages:
(3) That the abatement be approved by the district health officer and (1) If he causes unnecessary injury; or
executed with the assistance of the local police; and (2) If an alleged nuisance is later declared by the courts to be not a real
(4) That the value of the destruction does not exceed three thousand nuisance.
pesos.
Is there liability for damages in case of extrajudicial abatement?
What are the conditions for extrajudicial abatement of a public nuisance? Yeeeeeeees!
The party injured may remove, and if necessary, destroy thing which A private or public officer may be held liable for damages.
constitutes the nuisance without committing a breach of the peace, or The two grounds of which are:
doing unnecessary damage. a. Unnecessary injury
What should be done? b. The alleged nuisance is later declared by the courts to be
1. Demand be first made upon the owner or possessor of the not a real nuisance.
nuisance
2. Demand must have been rejected BOOK III
3. Abatement be approved by the district health officer and executed
DIFFERENT MODES OF ACQUIRING OWNERSHIP
with the assistance of the local police
4. The value of the destruction does not exceed P3000.
PRELIMINARY PROVISION
Art. 705. The remedies against a private nuisance are:
Art. 712. Ownership is acquired by occupation and by intellectual
(1) A civil action; or
creation.
(2) Abatement, without judicial proceedings.
Ownership and other real rights over property are acquired
and transmitted by law, by donation, by estate and intestate
Art. 706. Any person injured by a private nuisance may abate it by
succession, and in consequence of certain contracts, by tradition.
removing, or if necessary, by destroying the thing which constitutes
They may also be acquired by means of prescription. (609a)
the nuisance, without committing a breach of the peace or doing
unnecessary injury. However, it is indispensable that the
What is mode?
procedure for extrajudicial abatement of a public nuisance by a private
person be followed. Mode is the specific cause which produces them as the result of the
presence of a special condition of things, of the capacity and intention of
What are the remedies against a private nuisance? persons, and of the fulfillment of the requisites established by law.
1. Civil action
2. Abatement, without judicial proceedings. What is title?
Title is the juridical act, right or condition which gives the means to their
In abating a nuisance, a person may even go to the extent of destroying acquisition but which in itself is insufficient to produce them.
the damn thing which constitutes the nusicance provided:
a. He commits no breach of the peace nor causes
unnecessary injury, and
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In a contract of sale, the contract is the title and tradition, as a Law as a mode of acquisition?
consequence of sale, is the mode. When the Civil Code speaks of law as a mode of acquisition, it refers to
Sometimes, the mode is at the same time the title (as in with it as a distinct mode or to those cases where the law, independent of
succession) the other modes, directly vest ownership of a thing in a person once the
prescribed conditions or requisites are present or complied with.
Mode Title Examples:
Directly and immediately produces a Serves merely to give the occasion 1. Hidden treasure
real right for its acquisition or existence 2. Art 445
The cause The means 3. River beds (Art 461)
Proximate cause Remote cause 4. Art 466
Essence of the right which is to be The means whereby that essence is 5. Art 681
created or transmitted transmitted 6. Art 1434
7. Art 1456
Contracts only constitute titles or rights to the transfer or acquisition of
ownership, while tradition or delivery is the mode of accomplishing the Tradition as a mode of acquistion
same. Tradition is a derivative mode of acquiring ownership and other real
rights by virtue of which, there being intention and capacity on the part
What are the different modes and titles of acquiring ownership and other real of the grantor and grantee and the pre-existence of said rights in the
rights? (OLDTIPS) estate of the grantor, they are transmitted to the grantee through a just
1. Original modes or those independent of any pre-existing right of another title. (whut?)
person, namely: Requisites:
a. Occupation (condition of being without known owner); and i. Pre-existence in the estate of the grantor of the right to be
b. Work which includes intellectual creation (creation, transmitted
discovery, or invention) ii. Just cause or title for the transmission
2. Derivative modes or those based on a pre-existing right held by another iii. Intention on the part of the grantor to grant and on the part of
person, namely: the grantee to acquire
a. Law (existence of required conditions) iv. Capacity to transmit and to acquire
b. Donation (contract of parties) v. An act which gives it outward form, physically, symbolically or
c. Succession, estate and intestate (death) legally
d. Tradition, as a consequence of certain contracts (contract Purpose: non nudis pactis, sed traditione dominia rerum transferuntur.
of the parties), and Ownership is transferred, among other means, by tradition. The delivery
e. Prescription (possession in the concept of owner) of a thing constitutes a necessary and indispensable requisite for the
purpose of acquiring the ownership of the same by virtue of a contract.
The derivative modes are modes both for the acquisition and Kinds:
transmission of ownership and other real rights. The transmission may a. Real tradition
involve a right in its entirety, or only a part thereof (pledge, mortgage, b. Constructive tradition
usufruct). i. Symbolic
Registration is not a mode of acquiring ownership, and other real rights ii. Tradition by public instrument
but only a means of confirming the fact of their legal existence with iii. Traditio longa manu
notice to the world at large. iv. Tradition brevi manu
v. Tradition constitutum possessorium
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c. Quasi tradition 6. Requisites or conditions laid down by law must be complied with
d. Tradition by operation of law
What constitutes seizure?
What do you actually deliver? It is sufficient that there is an act of taking possession, material holding
Ownership, possession and control of the subject matter. not being essential as long as the possessor considers the thing as
subjected to his control or disposition
What if the vendor points to the vendee a certain house which he already The thing must be corporeal personal property without known owner
sold to the vendee, but there are security guards roaming around the lot? (res nullius) or abandoned by the owner. res communes are not
No tradition. (Ask Jaymie Reyes.) appropriable by nature.
The must be an intent to acquire ownership, otherwise, the seizure
Case doctrines would not be appropriation in the legal sense, but mere material holding.
A stranger to the succession of a dead person cannot conclusively claim
ownership over the subject lot on the sole basis of the waiver document Occupation Possession
which neither recites the elements of either a sale, or a donation, or any Mode of acquiring ownership Merely raises the presumption of
other derivative mode of acquiring ownership. (Acap v CA) ownership when it is exercised in the
An affidavit not accompanied by any instrument showing the sale concept of owner
between a purported vendor and vendee is not a basis of ownership. Corporeal personal property Any property
(Heirs of dela Cruz v Heirs of Quintos) Requires that the object be without May refer to property owned by
For lands of public domain, in order to acquire it by prescription, there an owner somebody
must be a declaration of the State that it’s alienable and disposable and Requires an intent to acquire Concept of mere holder
a positive act that states that it is no longer needed for public use. Only ownership
at that point will the counting for prescription start. (Heirs of Malabanan) May not take place without some May exist without occupation
form of possession
TITLE ONE - OCCUPATION Short duration Generally of longer duration
By itself, cannot lead to another May lead to another mode, which is
Art. 713. Things appropriable by nature which are without an owner, mode of acquisition prescription
such as animals that are the object of hunting and fishing, hidden
treasure and abandoned movables, are acquired by occupation. (610) What are the ways by which occupation may be effected?
1. By hunting and fishing
What is the concept of occupation? 2. By finding of movables which never had any owner
1. Defined as the appropriation of things appropriable by nature which are 3. By finding of movables which have been abandoned by the owner, and
without an owner. 4. By finding of hidden treasure
2. The seizure of things corporeal which have no owner with the intention
of acquiring the ownership thereof. What about wild animals?
They are possessed only while they are under one’s control.
What are the requisites of occupation?
1. Seizure of a thing When is a thing abandoned, lost or taken by force?
2. Must be corporeal personal property A thing is considered abandoned when the spes recuperandi
3. Must be susceptible of appropriation by nature (expectation to recover) is gone and the animo revertendi (intention to
4. Must be without an owner have it returned) is finally given up by the owner.
5. Must be an intention to appropriate
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A thing has been lost or taken by force is not ipso facto converted into a The periods of two days and twenty days are not periods of limitation,
res nullius so as to belong to the first person who takes possession of but conditions precedent to recovery.
the same without the necessity of proving the mode of his acquisition
and it may thus be recovered by the original owner. Art. 717. Pigeons and fish which from their respective breeding places
pass to another pertaining to a different owner shall belong to the
Art. 714. The ownership of a piece of land cannot be acquired by latter, provided they have not been enticed by some article of fraud.
occupation. (n) (613a)
Land is not included among things that can be the object of occupation This article does not refer to wild pigeons and fish in a state of liberty or
the reason is that when the land is without an owner, it pertains to the that live naturally independent of man. Their occupation is regulated by
state. Art 715.
But, what about abandoned private land? What is contemplated here are pigeons and fish considered as
domesticated animals subject to the control of man in private breeding
Art. 715. The right to hunt and to fish is regulated by special laws. (611) places.
The pigeons and fish must change their breeding place to another
Do I have a right to hunt and fish? belonging to a different owner.
No. Unless enticed by some artifice or fraud, the shall belong to the owner
Strictly speaking, no one has a right to hunt or fish. of the breeding place to which they shall have transferred.
The privilege to hunt or fish, however, may be granted and regulated by
law. Art. 718. He who by chance discovers hidden treasure in another's
property shall have the right granted him in article 438 of this Code.
Art. 716. The owner of a swarm of bees shall have a right to pursue (614)
them to another's land, indemnifying the possessor of the latter for the
damage. If the owner has not pursued the swarm, or ceases to do so Art. 719. Whoever finds a movable, which is not treasure, must return it
within two consecutive days, the possessor of the land may occupy or to its previous possessor. If the latter is unknown, the finder shall
retain the same. The owner of domesticated animals may also claim immediately deposit it with the mayor of the city or municipality where
them within twenty days to be counted from their occupation by the finding has taken place.
another person. This period having expired, they shall pertain to him The finding shall be publicly announced by the mayor for two
who has caught and kept them. (612a) consecutive weeks in the way he deems best.
If the movable cannot be kept without deterioration, or without
This article talks of domesticated, not domestic animals. expenses which considerably diminish its value, it shall be sold at
With respect to domestic animals, he can claim them even beyond public auction eight days after the publication.
twenty days from their occupation unless there is abandonment on his Six months from the publication having elapsed without the
part. owner having appeared, the thing found, or its value, shall be awarded
This article does not apply to a case where a person has found a to the finder. The finder and the owner shall be obliged, as the case
domestic animal and kept it for a number of years not knowing its may be, to reimburse the expenses. (615a)
owner.
A domesticated animal which has not strayed or been abandoned Art. 720. If the owner should appear in time, he shall be obliged to pay,
cannot be acquired by occupation by a person to whose custody it was as a reward to the finder, one-tenth of the sum or of the price of the
entrusted thing found. (616a)
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In certain donations, the form prescribed by law must be followed (See actual knowledge by the donor of the construction and existence of the
Art 748-749) school building pursuant to the condition of the donation fulfills the legal
The subject matter of a donation may be a thing or right. A person may requirement that the acceptance of the donation by the donee be
be a donee although he is incapacitated to enter into a contract if he is communicated to the donor. (Republic v Silim)
not specially disqualified by law to accept donations.
Not enough that the act is gratuitous, there must be an intent to benefit Art. 726. When a person gives to another a thing or right on account of
the donee. the latter's merits or of the services rendered by him to the donor,
The acceptance or consent of the donee is required because no once provided they do not constitute a demandable debt, or when the gift
can be obliged to receive a benefit against his will. imposes upon the donee a burden which is less than the value of the
thing given, there is also a donation. (619)
Case doctrines
The essential elements of donation are as follows: What are the kinds of donation?
o Essential reduction of the patrimony of the donor 1. As to taking effect:
o Increase in the patrimony of the donee a. Inter vivos or that which takes effect during the lifetime of
the donor
o The intent to do an act of liberality or animus donandi (Heirs of
b. Moris causa or that which takes effect upon the death of
Florencio v Heirs of de Leon) the donor
In order that the donation of an immovable property may be valid, the c. Propter nuptias or that by reason of marriage
deed of donation must be made in a public document. The acceptance 2. As to consideration
must be in a public document as well. (Heirs of Florencio) a. Pure or simple; or that the cause of which is the pure
Registration of the deed in the Office of the RD or in the Assessor’s liberality of the donor in consideration of the donee’s
Office is not necessary for it to be considered valid and official. merits
Registration does not vest title. The necessity of registration comes into b. Remuneratory or compensatory; or that which is given out
play only when the rights of third persons are affected. Furthermore, the of gratitude on account of the services rendered by the
heirs are bound by the deed of contracts executed by their donee to the donor, provided they do not constitute a
predecessors-in-interest. (Heirs of Florencio) demandable debt
A quitclaim is not a donation where those who executed the same c. Modal or that which imposes upon the donee a burden
merely acknowledged the ownership of and better right over the lot by (services to be performed in the future) less than the value
other persons. (Heirs of Reyes v Calumpang) of the gift
Acceptance is necessary in a donation. This applies to all kinds of d. Onerous or that the value of which is considered the
donations because the law does not make any distinction. A donation equivalent of the consideration for which it is given, or that
mortis causa takes effect only after the death of the donor, consequently made for a valuable consideration, and is thus governed
it is only after the latter’s death that its acceptance maybe made. (Vita v by the rules on oblicon
Montanano) 3. As to effectivity or extinguishment
Prudent thing to do when drafting deeds of donation: Place an a. Pure
acceptance clause. So, if court considers it inter vivos, then it would b. Conditional
have been accepted. If court considers it mortis causa, then the clause c. With a term
would be a mere superfluity, still open to the acceptance of the donee
upon the death of the donor. (Atty Abrenica) Tell me more about remuneratory donations
The purpose of the formal requirement for acceptance of a donation is In this kind of donation, the motivating cause is gratitude,
to ensure that such acceptance is duly communicated to the donor. The acknowledgment of a favor, a desire to repay for past services
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A donation given for future services cannot be remuneratory Harry donates to Ron a parcel of land worth 300 galleons2 but Ron has to
It is necessary that the past services do not constitute a demandable give another parcel of land or perform some service worth 100 galleons, the
debt transaction is onerous as the 100 galleons which must be in the form of a
o A debt is demandable when it can be legally demanded or enforced contract of barter or exchange, and simple as to the 200 galleons which
by the donee against the donor who has thus an obligation to pay it. must follow the form of donations.
But a debt that has been renounced is not a demandable debt.
Case doctrines
What about gratuities and pensions? An onerous donation is that which imposes upon the donee a reciprocal
While technically a gratuity is different from a donation, in substance, obligation, or to be precise, this is the kind of donation made for a
they are the same. valuable consideration, the cost of which is equal to or more than the
A gratuity is similar to a pension and is essentially remunerative thing donated. (CJ Yulo v Roman Catholic Bishop of San Pablo)
donation. Since onerous donations are governed by the rules of contracts, the
prescription period is 10 years (based on a written contract), and not the
4-year period based on Article 764 (revocation must be brought within 4
Tell me more about modal donations years from the non-compliance of the conditions of the donation). (De
In a modal donation, a burden (which is necessarily future) less than the Luna v Abrigo)
value of the gift is imposed upon the donee. Remuneratory donation is one where the donee gives something to
If the burden is considered the equivalent of the thing or right given, reward past or future services or because of future charges or burdens,
then it’s an onerous donation. when the value of said services, burdens or charges is less than the
The burden may consist in a real or personal charge which is capable of value of the donation. (De Luna -> this definition seems wrong as it
being valued in terms of money. includes future charges, which are necessarily modal)
2
As of July 2006, the galleon-dollar exchange rate was 1:16.72. It hasn’t gone below
1:15 ever since. Wala lang, boring ng property eh. Harry Potter na lang.
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The prohibition in the deed of donation against the alienation of the Designation given to donations not conclusive
property for 100 years should be declared as an illegal or Did the donor intend to transfer ownership of the property donated upon
impossible condition within the contemplation of Article 727. the execution of the donation? If yes, then it is inter vivos. If not, then, it
Consequently, such condition shall be considered as not imposed. is merely mortis causa.
No reliance may accordingly be placed on said prohibitory “To take effect at the death of the creditor” does not automatically make
paragraph in the deed of donation. (Archbishop of Manila v CA) it mortis causa. Such statements must be construed with the rest of the
instrument.
Art. 728. Donations which are to take effect upon the death of the
donor partake of the nature of testamentary provisions, and shall be Donations to be delivered after the donor’s death
governed by the rules established in the Title on Succession. (620) A distinction must be made between the actual donation and the
execution thereof
Art. 729. When the donor intends that the donation shall take effect That the donation is to have effect during the lifetime of the donor does
during the lifetime of the donor, though the property shall not be not mean that the delivery of the property must be made during his life.
delivered till after the donor's death, this shall be a donation inter Article 729 speaks of donations in praesenti which take effect during the
vivos. The fruits of the property from the time of the acceptance of the lifetime of the donor but the property shall be delivered after the donor’s
donation, shall pertain to the donee, unless the donor provides death.
otherwise. (n) Such are inter vivos although the subject matter is not delivered at
once, or the delivery is to be made post mortem, which is a simple
Inter vivos Mortis causa matter of form and does not change the nature of the act.
Takes effect during the lifetime of Takes effect upon the death of the The fruits shall belong to the donee from the time of acceptance unless
the donor, independently of his donor testator, so that nothing is otherwise provided by the donor.
death, even if the actual execution conveyed to or acquired by the
may be deferred until said death donee until said death Instances
Made out of the donor’s pure Made in contemplation of his death
generosity without the intention to lose the thing Why is it important to make a distinction between inter vivos and mortis
or its free disposal in case of survival causa?
Valid if the donor survives the donee Void should the donor survive the The distinction between a transfer inter vivos and mortis causa is
donee important as the validity or revocation of the donation depends upon its
Must follow formalities of donations Must follow formalities for the validity nature.
of a will, otherwise void If the donation is inter vivos, it must be executed and accepted with the
Accepted by the donee during his Accepted only after the donor’s formalities prescribed by Articles 748 and 749, except when it is
lifetime death onerous in which case the rules on contracts apply.
Cannot be revoked except for Always revocable at any time and for If it is mortis causa, the donation must be in the form of a will, with all
grounds provided by law (See 760, any reason before the donor’s death the formalities for the validity of wills, otherwise it is void and cannot
765) (revocable ad nutum – at the transfer ownership. Moreover, mortis causa can be revoked any time
discretion of the grantor) before the death of the donor. (Ganuelas v Cawed)
Right to dispose of the property is Right is retained by the donor while
completely conveyed to the donee he is still alive What clauses are found in a deed of donation?
Subject to donor’s tax Subject to estate tax 1. Habendum or warranty clause (wherein grantor transfers
ownership)
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2. Redendum or reservation clause (wherein grantor reserves 3. That the transfer should be void if the transferor should survive the
something new to himself) transferee (Maglasang v Heirs of Corazon Cabatingan)
3. Acceptance clause One of the decisive characteristics of a donation mortis causa is that the
transfer should be considered void if the donor should survive the donee
Case doctrines (Maglasang)
It is a settled rule that the title given to a deed of donation is not the Donations mortis causa must be executed in accordance with the
determinative factor which makes the donation inter vivos or mortis requisites on solemnities of wills and testaments under Articles 805 and
causa. 806 of the Civil Code
In case of doubt, the conveyance should be deemed donation inter
vivos rather than mortis causa, in order to avoid uncertainty as to the Art. 730. The fixing of an event or the imposition of a suspensive
ownership of the property subject of the deed. (Puig v Penaflorida – but condition, which may take place beyond the natural expectation of life
see book which cites the same case but says the opposite) of the donor, does not destroy the nature of the act as a donation inter
Donations inter vivos are immediately operative, even if the actual vivos, unless a contrary intention appears. (n)
execution may be deferred until the death of the donor. Mortis causa,
nothing is conveyed to the grantee and nothing is acquired by the latter, Donation inter vivos subject to suspensive condition
until the death of the grantor-testator, the disposition being until then This article contemplates a situtation where the donor intends the
ambulatory and not final. (Puig) donation to take effect during his lifetime but he imposes suspensive
Acceptance clause is a mark that the donation is inter vivos. condition which may or may not take place beyond his lifetime.
Acceptance is a requirement for donations inter vivos. Donations moris The fact that the event happens or the condition is fulfilled after the
causa are not required to be accepted by the donees during the donors’ donor’s death does not change the nature of the act as a donation inter
lifetime. (Gestopa v CA) vivos.
A limitation on the right to sell during the donors’ lifetime implied that The effect of the fulfillment of the suspensvie condition is retroactive to
ownership had passed to the donees and donation was already the making of the donation.
effective during the donors’ lifetime. (Gestopa) EXCEPTION: when the donor really intended that the donation should
o Reiterated in Alejandro v Geraldez: Condtion that donees take effect after his death. Thus, mortis causa.
cannot sell during donors’ lifetime to a third person the donated
property implies immediate passage of ownership and, Art. 731. When a person donates something, subject to the resolutory
therefore donation is inter vivos. condition of the donor's survival, there is a donation inter vivos. (n)
The reservation of lifetime usufruct indicates that the donor intended to
transfer the naked ownership over the properties, thus making it inter Donation inter vivos subject to a resolutory condition
vivos. (Gestopa) In these cases, the ownership of the donated property is immediately
Factors in determining whether a donation is one of mortis causa: transferred to the donee upon perfection of the donation once
1. It conveys no title or ownership to the transferee before the death of acceptance by the donee is made known to the donor.
the transferor; or what amounts to the same thing, that the A donation subject to a resolutory condition takes effect immediately but
transferor should retain the ownership (full or naked) and control of shall become inefficacious upon the happening of the event which
the property while alive; constitutes the condition.
2. The before his death, the transfer should be revocable by the Even if the donation is subject to the resolutory condition of the donor’s
transferor at will, ad nutum; but revocability may be provided for survival, the donation is still inter vivos.
indirectly by means of a reserved power in the donor to dispose of o I will donate this land to you, but if I survive World War III, I will
the properties conveyed; and get it back. If I survive World War III, the donation is rescinded.
If I don’t make it, then it continues in effect.
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But for third parties to be bound, there must be registration. 2. Insane or demented persons
3. Deaf-mutes who do not know how to write
Case doctrines 4. Corporations (with regard to giving donations to aid any political party)
The purpose of the formal requirement for acceptance of a donation is 5. Guardians and trustees (with regard to property entrusted to them)
to ensure that such acceptance is duly communicated to the donor. The 6. Spouses (to each other, except moderate gifts)
actual knowledge by the donor of the construction and existence of the 7. A spouse (to others without the consent of the other spouse, except
school building pursuant to the condition of the donation fulfills the legal moderate donations)
requirement that the acceptance of the donation by the donee be
communicated to the donor. (Republic v Silim)
Art. 736. Guardians and trustees cannot donate the property entrusted
to them. (n)
CHAPTER 2
PERSONS WHO MAY GIVE OR RECEIVE A DONATION Donation by a guardian or trustee of ward’s property
Generally, guardians and trustees cannot be donors of their ward’s
Art. 735. All persons who may contract and dispose of their property properties for the simple reason that they are not the owners of the
may make a donation. (624) same.
Exception: With respect to the trustee, donation is permitted
Capacity of donor to contract and dispose of property notwithstanding that the trustee receives nothing in exchange directly, if
The donor must have both the capacity to contract and the capacity to the donation is onerous and is beneficial to the beneficiary.
dispose of his property in order that he may make a donation.
Those who cannot give consent to a contract cannot be donors; and Art. 737. The donor's capacity shall be determined as of the time of the
donation made by one who does not have the free disposal of the thing making of the donation. (n)
donated and to alienate it shall not be valid.
It is possible, however, for a person to have capacity to contract but not Capacity of donor at time of making the donation
the capacity to dispose of property. The donation is perfected from the moment the donor knows of the
o Under the Family Code, every donation between spouses acceptance by the donee.
during the marriage shall be void except moderate gifts on the However, this article seems to imply that the donor’s capacity must exist
occasion of any family rejoicing. The prohibition applies also to at the time of making the donation and not from the time of knowledge
persons living together as husband and wife without a valid by the donor of the acceptance, that is, at the perfection of the act
marriage, or in illicit relations. A juridical absurdity arises in case the donor has no capacity to act at
o Neither spouse may donate any community property nor the time the acceptance is conveyed to him. Since legally, the donor
conjugal partnership property without the consent of the other, cannot be said to have knowledge of the acceptance, there can be no
except moderate donations for charity or on occasion of family perfection of the donation which presupposes a meeting of the minds
rejoicing or family distress. between the donor and the donee who are both capacitated.
To avoid the apparent contradiction, the phrase “making of the
Can corporations make donations? donation” should be construed to mean “perfection of the donation”
Yes. But they can’t give donations to aid any political party or candidate Hence, the donation would be valid, although the donor was insane at
or for purposes of partisan political activity. the time he signs the deed of donation or informs the donee of the
donation but sane when he learns of the acceptance. The donor may
Who are incapacitated to donate? ask for annulment of the donation if he so desires
1. Minors
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The subsequent incapacity of the donor does not affect the validity of 4. Between spouses during the marriage, except moderate gifts which
the donation. This is similar to the rule in succession. they may give each other on the occasion of any family rejoicing
(Art 87, Family Code)
Art. 738. Al those who are not specially disqualified by law therefor 5. Donations of community property by a spouse without the consent
may accept donations. (625) of the other, except moderate donations (Art 98, Family Code)
6. Donations of conjugal partnership property by a spouse without the
Capacity of the donee consent of the other, except moderate donations (Art 125, Family
Generally, all persons, whether natural or artificial, may be donees. Code)
A donee need not be sui juris, with complete legal capacity to bind 7. Donations to those provided for in Article 740, in cross reference to
himself by contract. Art 1027 and 1032.
As long as he is “not specially disqualified by law”, he may accept 8. Donations accepted by agents without special authority to do so
donations. (Art 745)
So, donations may be made to: 9. Donations of immovables which don’t conform to the form
1. Incapacitated persons such as minors and others who cannot prescribed in Art 749
enter into a contract,
2. and also to conceived and unborn children. Donations between persons guilty of adultery and concubinage
The civil action for declaration of nullity may be brought after the
Art. 739. The following donations shall be void: persons involved have been found guilty by final judgment in a criminal
(1) Those made between persons who were guilty of adultery proceeding of adultery or concubinage.
or concubinage at the time of the donation; In view of the last paragraph, conviction for adultery or concubinage in a
(2) Those made between persons found guilty of the same criminal action is not essential.
criminal offense, in consideration thereof; The guilt of the donor and the donee may be proved by a mere
(3) Those made to a public officer or his wife, descendants and preponderance of evidence in a civil proceeding to nullify the donation,
ascendants, by reason of his office. alleging the adultery or concubinage as the cause of action for the
In the case referred to in No. 1, the action for declaration of declaration of nullity.
nullity may be brought by the spouse of the donor or donee; and the The donation is void, whether made before or after the illicit relations, if
guilt of the donor and donee may be proved by preponderance of given in consideration thereof, either as inducement or compensation.
evidence in the same action. (n) What if the donation is given in contemplation of the termination of the
relationship, is the donation still void?
Donations void on moral grounds o Since the purpose is praiseworthy, good for all concerned, it should
This article declares null and void ab initio the donations referred to. be considered valid.
o This is particularly true when the woman (donee) was a victim of
What are the different void donations? deceit by the man.
1. Between persons who were guilty of adultery and concubinage at o However, where the illicit relation was voluntary, and the donation
the time of the donation was demanded by the woman as a price of the termination of their
2. Between persons found guilty of the same criminal offense, in relationship, the donation is void.
consideration thereof What if the concubine did not know that the man she lived with was
3. Made to a public officer or his wife, descendants and ascendants, actually married?
by reason of his office o Then she is not guilty of concubinage and not disqualified from the
donation.
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Donations between persons found guilty of the same criminal offense 4. Any physician, surgeon, nurse, health officer or druggist who took
This rules presupposes prior criminal conviction in a criminal action; care of the donor during his last illness
hence proof of guilty by mere preponderance of evidence is not 5. Individuals, associations, and corporations not permitted by law to
sufficient. inherit.
The donation here is remuneratory or onerous. It is void whether made According to Art 1032, there are certain people who are deemed
before or after the commission of the crime if it is in consideration incapable to inherit by reason of unworthiness. The donation made to a
thereof. person who falls under any of its provisions is valid if the donor had
It is still void although the crime is not carried out because it is based on knowledge of the act of unworthiness or having known it subsequently,
an unlawful cause. he should condone the same in writing. Even in the absence of pardon,
the donation is not subject to revocation because donations may be
Donations made to a pubic officer, by reason of his office revoked only for causes mentioned in Articles 760, 764 and 765. So,
Indirect bribery! who are these people?
The guilt need not be established by proof beyond reasonable doubt in 1. Parents who have abandoned their children or induced their
a criminal proceeding for bribery. daughters to lead a corrupt or immoral life, or attempted against
A civil action to declare the donation void may be maintained by the their virtue;
proper party in interest. 2. Any person who has been convicted of an attempt against the life
Donations made to persons other than those mentioned are valid, of the testator, his or her spouse, descendants, or ascendants;
unless, of course, they are intended for the public officer. 3. Any person who has accused the testator of a crime for which the
law prescribes imprisonment for six years or more, if the accusation
Art. 740. Incapacity to succeed by will shall be applicable to donations has been found groundless;
inter vivos. (n) 4. Any heir of full age who, having knowledge of the violent death of
the testator, should fail to report it to an officer of the law within a
Incapacity to succeed by will month, unless the authorities have already taken action; this
This article expressly makes the provisions on incapacity to succeed by prohibition shall not apply to cases wherein, according to law, there
will applicable to donations inter vivos is no obligation to make an accusation;
5. Any person convicted of adultery or concubinage with the spouse of
Of course, they are also applicable to donations mortis causa which are
the testator;
governed by the law on succession
6. Any person who by fraud, violence, intimidation, or undue influence
According to Art 1027, the following are incapable of becoming donees:
should cause the testator to make a will or to change one already
1. The priest who heard the confession of the donor during his last
made;
illness, or the minister of the gospel who extended spiritual aid to
7. Any person who by the same means prevents another from making
him during the same period
a will, or from revoking one already made, or who supplants,
2. The relatives of such priest or minister of the gospel within the
conceals, or alters the latter's will;
fourth degree, the church, order, chapter, community, organization,
8. Any person who falsifies or forges a supposed will of the decedent.
or institution to which such priest or minister may belong
3. A guardian with respect to donations given by a ward in his favor
Who are incapable of becoming donees?
before the final accounts of the guardianship have been approved,
1. Persons guilty of concubinage or adultery at the time of donation (but
even if the donor should die after the approval thereof;
only between them)
nevertheless, any provision made by the ward in favor of the
2. Persons found guilty of the same criminal offense, in consideration
guardian when the latter is his ascendant, descendant, brother,
thereof (but only between them)
sister, or spouse, shall be valid
3. Public officers, etc by reason of their office
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4. Those mentioned in Art 1027 Donations to such persons are void even if simulated under the guise of
5. Those mentioned in Art 1032 (unworthy people) another contract or through an intermediary.
Art. 744. Donations of the same thing to two or more different donees
Art. 741. Minors and others who cannot enter into a contract may shall be governed by the provisions concerning the sale of the same
become donees but acceptance shall be done through their parents or thing to two or more different persons. (n)
legal representatives. (626a)
Donations of the same thing to different donees
Ok, tell me more about donations to minors and others without capacity to This article expressly makes applicable by analogy the rules on sales3
contact of the same thing to two ore more different vendees.
Donation requires acceptance by the donee. However, this article has had its sure of criticism. See book.
If the donee is a minor or without capacity to enter into a contract, the
acceptance must be made by the parents or legal representative of the Art. 745. The donee must accept the donation personally, or through an
donee. authorized person with a special power for the purpose, or with a
This is especially true if the donation is onerous or imposes a charge or general and sufficient power; otherwise, the donation shall be void.
burden. (630)
It is clear that the donee may not validly accept a donation although it
imposes no burden. Who must accept the donation?
In any case, when a formal or written acceptance is required by the 1. The donee personally, or
donor, such acceptance must be made by the parents or legal 2. An authorized person or an agent, with a special power for the
representative. purpose, or with a general and sufficient power
Art. 742. Donations made to conceived and unborn children may be If not?
accepted by those persons who would legally represent them if they Then, the donation is void.
were already born. (627)
Does the parent of a minor need a special power for the purpose of
Can you donate to conceived and unborn children? accepting a donation? Probably not, a parent is not considered an agent of a
Yes! minor. They are considered legal guardians. (But I’m not sure.)
De Leon once again states the obvious by saying, “A conceived and
unborn child cannot accept a donation because it is not yet a natural Art. 746. Acceptance must be made during the lifetime of the donor and
person.” of the donee. (n)
The acceptance must be made by those persons who would legally
represent them if they were already born. When should acceptance be made for inter vivos?
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A donation inter vivos takes effect during the lifetime of the donor and When the value of property exceeds P5000, the donation and the
the donee, and to take effect, it must be accepted by the donee. acceptance must always be made in writing; otherwise the donation is
Hence, acceptance by the donee (or his representative) must be made void, even if there is simultaneous delivery of the thing.
during his lifetime and that of the donor. o The donation and the acceptance need not be made in a public
Even if the donation is made during their lifetime, but the donor dies instrument, nor is it necessary that the acceptance be made in the
before the acceptance is communicated to him, the donation is not same deed of donation.
perfected. When the value of property is P5000 or less, it may be made orally or in
writing.
How about for mortis causa? o If made orally, there must be simultaneous delivery of the thing or
Donations mortis causa are accepted only after the donor’s death of the document representing the right donated, otherwise, the
because they partake of a will, and are governed by the rules on donation is void. There must be acceptance which may be oral or
succession. written. The receipt of the delivery by the donee constitutes implied
If the acceptance was made before the donor’s death, the donation acceptance.
mortis causa although validly executed, cannot be given force and o If made in writing, the donation is valid although there is no
effect. Such acceptance is void. (But is the donation void? Can there be simultaneous delivery. Again, there must be acceptance which may
a subsequent acceptance after the death of the donor?) also be made orally or in writing.
In every case, the acceptance of the donee must be made known to the
Art. 747. Persons who accept donations in representation of others donor for perfection of a donation to take place.
who may not do so by themselves, shall be obliged to make the
notification and notation of which Article 749 speaks. (631) Art. 749. In order that the donation of an immovable may be valid, it
must be made in a public document, specifying therein the property
When does this article apply? donated and the value of the charges which the donee must satisfy.
1. When acceptance is made through the parents, legal representative, or The acceptance may be made in the same deed of donation or
authorized agent of the donee; in a separate public document, but it shall not take effect unless it is
2. The property donated is immovable, and done during the lifetime of the donor.
3. The acceptance is not made in the same deed of donation but in a If the acceptance is made in a separate instrument, the donor
separate public instrument. shall be notified thereof in an authentic form, and this step shall be
noted in both instruments. (633)
The requirement of notification of the donor and notation in both
instruments that such notification has been made is necessary for the Formalities for donation of immovables
validity and perfection of the donation. This article does not apply to onerous donations since they are
governed by the laws of obligations and contracts
Art. 748. The donation of a movable may be made orally or in writing. Donation of real property, which is a solemn contract, is void without the
An oral donation requires the simultaneous delivery of the formalities stated in Article 749
thing or of the document representing the right donated.
If the value of the personal property donated exceeds five So, what are the rules?
thousand pesos, the donation and the acceptance shall be made in When donation and acceptance are in the same instrument, the
writing, otherwise, the donation shall be void. (632a) requirements are:
1. The donation must be in a public document or instrument; and
What are the rules for the formalities for donations for movables? 2. The instrument must specify the property donated and the charges,
if any, which the donee must satisfy.
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When the donation and acceptance are in separate instruments, the by Article 749. When a party wants to prove the contents of a
requirements are: documents, the best evidence is the original writing itself.
1. The donation must be in a public document or instrument; Prior to the introduction of secondary evidence, a party must establish
2. The instrument must specify the property donated and the charges, the existence and due execution of the instrument, after which he must
if any, which the donee must satisfy prove that the document was lost or destroyed. (DECS v Del Rosario)
3. The acceptance by the donee must be in a public document Where the deed of donation fails to show the acceptance, or where the
4. It must be done during the lifetime of the donor formal notice of the acceptance, made in a separate instrument is not
5. The donor must be notified in authentic form of the acceptance of given to the donor or else not noted in the deed of donation and in the
the donation in a separate instrument; and separate acceptance, the donation is null and void. (Sumipat v Banga)
6. The fact that such notification has been made must be noted in
both instruments. CHAPTER 3
o But see the Rep v Silim case wherein the notification was not
EFFECT OF DONATIONS AND LIMITATIONS THEREON
noted in the instrument, but still, the SC ruled that the donation
was valid. Art. 750. The donations may comprehend all the present property of
the donor, or part thereof, provided he reserves, in full ownership or in
The donation of real property in a private instrument is null and void, usufruct, sufficient means for the support of himself, and of all
and the donee may not compel the donor to execute a public instrument relatives who, at the time of the acceptance of the donation, are by law
(1357) which applies only when the contract or donation is valid and entitled to be supported by the donor. Without such reservation, the
enforceable. The donation cannot be ratified. donation shall be reduced in petition of any person affected. (634a)
Registration is not necessary for the donation to be considered valid
and effective. Reservation of sufficient means for support of donor and relatives
From the time the public instrument of donation is simultaneously A donor may donate all his present property or part thereof provided he
executed and acknowledged by the donor and the donee, the latter reserves sufficient property in ownership or in usufruct for the support of
acquires the ownership of the donated property, since the execution of a himself and of all relatives who are entitled to be supported by him at
public instrument of conveyance is one of the recognized ways in which the time of the perfection of the donation
tradition of immovable property may be made, unless the contrary is Present property means property which the donor can rightfully dispose
expressed or inferable from the terms of the deed. of at the time of the donation.
Title to immovable property does not pass from the donor to the donee o The share in an existing inheritance is present property
by virtue of donation until and unless it has been accepted in public although the heir has not yet entered into the possession of the
instrument and the donor duly notified thereof. same.
Where the donation is on its face absolute and unconditional, it is error The donation of present property without the required reservation is not
to imply that the possession or usufruct is excluded from the donation or null and void in its entirety; it is only subject to reduction by the court on
the donation is subject to any charge or burden. The absence in the petition of the party prejudiced by the donation – the donor himself, any
deed of any reservation in favor of the donor is proof that no such dependent relative or creditor of the donor.
reservation was ever intended considering that under the law, a The limitation applies to simple, remunerative and modal donations but
donation of immovable by public instrument is required to specify “the
not to onerous ones which are governed by the law on obligations and
value of the charges” that the donee must assume.
contracts, nor to donations mortis causa for they take effect only after
the donor’s death.
Case doctrines
Donations propter nuptias cannot exceed more than one-fifth of the
The best or primary evidence of a donation of real property is an
present property of the future spouses if in their marriage settlements
authentic copy of the deed of donation with all the formalities required
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executed before the marriage, they agree upon a regime other than the Another reason is that the donor by desisting to acquire a future
absolute community of property.4 property donated would be revoking the donation contrary to the rule
that donations inter vivos are irrevocable save for causes provided by
Case doctrines law.
When the dnor stated that she would continue to retain the “possession,
cultivation, harvesting and all other rights and atrtributes of ownership” Case doctrine
she meant only dominium utile, not the full ownership. The words “rights A donor cannot lawfully convey what is not his property. Where a parcel
and attributes of ownership” should be construed ejusdem generis with of land was the registered property of another, and the donee failed to
the preceding rights of “possession, cultivation and harvesting” show how her donor acquired it from the registered owner, it is held that
expressly enumerated in the deed. (Cuevas v Cuevas) the donor has no right, title or interest in said land which he could
lawfully convey.
Art. 751. Donations cannot comprehend future property.
By future property is understood anything which the donor
cannot dispose of at the time of the donation. (635) Art. 752. The provisions of Article 750 notwithstanding, no person may
give or receive, by way of donation, more than he may give or receive
Donation of future property… PROHIBITED! by will.
Future property is anything which the donor cannot dispose of at the The donation shall be inofficious in all that it may exceed this
time of the donation. In other words, it is property that belongs to others limitation. (636)
at the time the donation is made and it is immaterial that it may
subsequently belong to the donor. Amount of donation limited to what donor may give by will
Nobody can dispose of that which does not belong to him. Nemo emo. Article 752 makes applicable to donations the limitation on testamentary
Future inheritance cannot be donated because it is future property but disposition with respect to the amount thereof.
upon the death of his predecessor, the inheritance ceases to be future The limitation is really on the right of the donor to give rather than on the
and consequently, may be the object of donation even if the properties right of the donee to receive.
constituting the inheritance have not yet been delivered. A person may not donate more than he can give by will and a person
Property, the acquisition of which by the donor depends upon the may not receive by way of donation more than what the donor is
fulfillment of a suspensive condition, may be donated because, although allowed by law to give by will; otherwise, the donation shall be
the property may be as to him still “future property”, the effects of the inofficious and shall be reduced with regard to the excess.
fulfillment of the condition shall retroact to the day of the constitution of The limitation applies where the donor has forced or compulsory heirs.
the contract. The purpose is not to diminish the legitimes to which they are entitled.
o But the limitation is enforceable only after the death of the
4
Art. 82. Donations by reason of marriage are those which are made before its celebration, in donor because it is only then when it can be determined
consideration of the same, and in favor of one or both of the future spouses. (126) whether or not the donation is inofficious; by contrasting its
Art. 83. These donations are governed by the rules on ordinary donations established in Title III of
Book III of the Civil Code, insofar as they are not modified by the following articles. (127a) value with the net value of the estate of the donor deceased.
Art. 84. If the future spouses agree upon a regime other than the absolute community of property, o The donation is valid during the lifetime of the donor.
they cannot donate to each other in their marriage settlements more than one-fifth of their present
property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary succession and Art. 753. When a donation is made to several persons jointly, it is
the formalities of wills. (130a) understood to be in equal shares, and there shall be no right of
Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In accretion among them, unless the donor has otherwise provided.
case of foreclosure of the encumbrance and the property is sold for less than the total amount of The preceding paragraph shall not be applicable to donations
the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for
more than the total amount of said obligation, the donee shall be entitled to the excess. (131a) made to the husband and wife jointly, between whom there shall be a
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right of accretion, if the contrary has not been provided by the donor. Donation with right of donor to dispose of part of object donated, reserved.
(637) The donor may reserve the right to dispose of some of the things or part
of the thing donated or some amount or income thereof.
Donation to several donees jointly The donation is actually conditional, and the condition is fulfilled if the
The rules are as follows: donor dies without exercising the right he reserved, either by acts inter
1. The donation is understood to be in equal shares, unless the donor vivos or mortis causa.
has provided otherwise.
2. There shall be no right of accretion among the donees, unless the Ron donates to Harry a house and an apartment with the provision that Ron
donor has otherwise provided. could sell the house and give the rents (or a portion) of the apartment for 5
3. If the donees are husband and wife, there shall be aright of years to Frank. The donation of the house with a reservation of the right to
accretion, if the contrary has not been provided by the donor. dispose should be considered mortis causa, and therefore, must follow the
If there is no accretion among the donees, one cannot accept formalities prescribed for making a will. The donation of the apartment is
independently for his co-donee who is not present. inter vivos.
Art. 754. The donee is subrogated to all the rights and actions which in Art. 756. The ownership of property may also be donated to one person
case of eviction would pertain to the donor. The latter, on the other and the usufruct to another or others, provided all the donees are
hand, is not obliged to warrant the things donated, save when the living at the time of the donation. (640a)
donation is onerous, in which case the donor shall be liable for
eviction to the concurrence of the burden. Naked ownership and usufruct separately donated
The donor shall also be liable for eviction or hidden defects in The donor may donate separately the naked ownership (dominium
case of bad faith on his part. (638a) directum) to one person and the usufruct (dominium utile) to another.
To be valid, the donee must be “living at the time of the donation”, which
Rights and actions is to be understood to refer to the time of the perfection of the donation.
Here are the rules: A donation to a child who was not yet conceived at the time it was made
1. The donee is subrogated to all the rights and actions which in case is void.
of eviction would pertain to the donor If the property donated is immovable, the formalities for donations of
2. If the donation is simple or remunerative, the donor is not liable for real property must be complied with.
eviction or hidden defects, becaue the donation is gratuitous;
3. Even if the donation is simple or remunerative, the donor is liable Art. 757. Reversion may be validly established in favor of only the
for eviction or hidden defects in case of bad faith on his part donor for any case and circumstances, but not in favor of other
(knowingly donating a chicken with avian flu) or warranty is persons unless they are all living at the time of the donation.
expressly stipulated; and Any reversion stipulated by the donor in favor of a third
4. If the donation is onerous (modal donation, according to de Leon), person in violation of what is provided in the preceding paragraph
the donor is liable on his warranty but only to the extent of the shall be void, but shall not nullify the donation. (614a)
burden.
Donation with provision for reversion
Art. 755. The right to dispose of some of the things donated, or of The donor may provide for reversion, whereby the property shall go
some amount which shall be a charge thereon, may be reserved by the back to the donor or some other person.
donor; but if he should die without having made use of this right, the It may be validly established for any case and circumstances.
property or amount reserved shall belong to the donee. (639) If the revision is in favor of other persons, they must be living at the time
of the donation.
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Thus, a reversion in favor of an unconceived child is void, but such Presumed in fraud when at the time thereof the donor did not reserve
nullity shall not invalidate the donation. The reversion which is merely sufficient property to pay his debts prior to the donation.
an accessory clause is simply disregarded. The creditors of the donor at the time of the donation may exercise the
subsidiary right of rescission when they cannot in any manner collect
the claims due them (accion pauliana) unless the property donated has
Art. 758. When the donation imposes upon the donee the obligation to passed into the hands of a third person in good faith for value. In the
pay the debts of the donor, if the clause does not contain any latter case, the donee shall answer for damages if he acted in bad faith.
declaration to the contrary, the former is understood to be liable to pay
only the debts which appear to have been previously contracted. In no Case doctrine
case shall the donee be responsible for the debts exceeding the value Requisites for an accion pauliana:
of the property donated, unless a contrary intention clearly appears. 1. Credit prior to alienation, even if demandable later
(642a) 2. Debtor has made a subsequent contract conveying a patrimonial
benefit to a 3rd person
Art. 759. There being no stipulation regarding the payment of debts, 3. The creditor has no legal remedy to satisfy his claim
the donee shall be responsible therefor only when the donation has 4. The act being impugned is fraudulent
been made in fraud of creditors. 5. The third person who received the property conveyed, if is by
The donation is always presumed to be in fraud of creditors, onerous title, has been an accomplice in the fraud.
when at the time thereof the donor did not reserve sufficient property But remember that accion pauliana is subsidiary.
to pay his debts prior to the donation. (643)
CHAPTER 4
Liability of donee to pay debts of donor
Here are the rules.
REVOCATION AND REDUCTION OF DONATIONS
1. Where donor imposes obligation upon the donee:
a. The donee is liable to pay only debts previously Art. 760. Every donation inter vivos, made by a person having no
contracted; children or descendants, legitimate or legitimated by subsequent
b. He is liable for subsequent debts only when there is a marriage, or illegitimate, may be revoked or reduced as provided in the
stipulation to that effect; and next article, by the happening of any of these events:
c. He is not liable for debts in excess of the value of the (1) If the donor, after the donation, should have legitimate or
donation received, unless the contrary is intended. legitimated or illegitimate children, even though they be posthumous;
2. Where there is no stipulation regarding the payment of debts (2) If the child of the donor, whom the latter believed to be
a. The donee is generally not liable to pay the donor’s debts; dead when he made the donation, should turn out to be living;
b. He is responsible therefore only if the donation has been (3) If the donor subsequently adopt a minor child. (644a)
made in fraud of creditors (which is always presumed
when at the time of the donation the donor has not left Grounds for revocation and reduction of donation
sufficient assets to pay his debts) 1. Revocation affects the whole donation and is allowed during the lifetime
c. He is not liable beyond the value of the donation received. of the donor. The grounds are:
a. Birth, appearance, or adoption of a child (760);
Ordinarily, the donee should not be made liable to pay the donor’s debt
b. Non-fulfillment of a resolutory condition imposed by the donor
beyond the value of the thing donated.
(764); and
c. Ingratitude of the donee. (765)
Donation in fraud of creditors
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2. Reduction generally affects a portion only of the donation (unless the Here, the donor had no child whether legitimate, legitimated, or
donee has no free portion left) and is allowed during the lifetime of the illegitimate at the time of the donation, and thereafter, a child was born
donor or after his death. The grounds are: even if posthumous.
a. Failure of the donor to reserve sufficient means for support of What if the child was already conceived but not yet born, what provision
himself or dependent relatives; (750) should apply, Article 760 or 771?
b. Failure of the donor to reserve sufficient property to pay off his o It depends.
existing debts (759); o If the donor was aware of such conception, Article 771. Hence,
c. Inofficiousness, that is, the donation exceeds that which the he cannot revoke the donation upon the birth of the child.
donor can give by will; (752, 771) and o But, if he did not know of such conception when he made the
d. Birth, appearance, or adoption of a child. (760) donation, the situation is similar to the appearance of an
A donation that has been duly perfected in accordance with law should absent child thought by the donor to be dead. For purposes of
stand until after its revocation should have been asked and granted in the law, he had no child.
the proper proceeding. The rule is that a conceived child is considered born
for all purposes favorable to it. Since to consider the
Birth, appearance, or adoption of a child child as already born would make the donation
This article applies to all donations inter vivos. It does not apply: irrevocable and would be unfavorable to it, the
a. to donations mortis causa for they are revocable at will by the subsequent birth of the child should revoke or reduce
donor (testator); the donation.
b. to onerous donations for they are really contracts; and
c. to donations propter nuptias for they are revocable only for the Appearance of a child
causes provided in the Family Code – see Art 86 of the Fam In this case, the donor had only one child whom he believed to have
Code5. already died at the time of the donation.
It is applicable when the donor, at the time he made the donation, did The note says “child”, so the subsequent appearance of a descendant,
not have any child or descendant or erroneously thought so; otherwise, like a grandkid, would not revoke the donation
Article 771 in relation to Article 752 shall apply. o But the donation may be reduced under Article 771 as
Every donation is subject to revocation or reduction by the happening of inofficious if it impairs the legitime of the descendant.
any of the events mentioned which are in the nature of implied
resolutory conditions. Adoption of a child
The subsequent adoption of a minor child is also a ground for the
Birth of a child revocation or reduction of a donation.
It’s an exception to the rule that a donation inter vivos shall be
irrevocable by the donor.
Again, the law says “minor child”; hence the adoption of a person of
5
Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases: majority age although it is allowed in certain cases is not a ground under
(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in No. 3.
the marriage settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian, as required by
law; Case doctrine
(3) When the marriage is annulled, and the donee acted in bad faith; Revocation upon birth of a child and return of property to donor are not
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
self-operative or self-executory. There is a need for judicial action.
(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil (Oracion v Juanillo)
Code on donations in general. (132a)
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This action cannot be renounced, and is transmitted, upon the thereon by him being void, with the limitations established, with regard
death of the donor, to his legitimate and illegitimate children and to third persons, by the Mortgage Law and the Land Registration Laws.
descendants. (646a) This action shall prescribe after four years from the
noncompliance with the condition, may be transmitted to the heirs of
Prescription of action for revocation or reduction the donor, and may be exercised against the donee's heirs. (647a)
The donation is revoked ipso jure by operation of law, by the happening
of any of the events mentioned in Article 760. Failure to comply with conditions
o Hence, it is not really essential that an action be brought to A donation may be revoked in case of failure of the donee to comply
revoke the donation. with “any of the conditions” imposed by the donor upon him.
o BUT, the revocation is not self-operative or self-executory. The word “conditions” actually refers to obligations, charges, or burdens
If the donee should refuse to comply with his obligation under Article imposed by the donor; it may also refer to a resolutory condition. Hence,
762, resort to judicial action is necessary under Article 763. But since it what is contemplated are onerous or modal donations.
is the law itself that declares the revocation, the action is strictly not an Of course, it implies that there is an existing donation.
action to revoke but one to have the court expressly declare the The condition must be fulfilled within the period fixed by the donor.
revocation which has already taken place by operation of law. o No period? The court shall determine such period as may have
The period within which to bring the action is 4 years. The time to start been contemplated by the donor.
counting depends upon the cause: In case the donee fails to comply, the property donated reverts to the
o Birth of the first child; donor, along with the fruits of the property which the donee may have
o From time of legitimation, recognition or adoption; or received after having failed to fulfill the condition.
o From judicial declaration of filiation If the property has been alienated or mortgaged, the alienation or
o From the time information was received regarding the mortgage shall be void SUBJECT to the rights of innocent third persons
existence of the child believed dead. under registration laws who may have taken the property donated
Not from the actual appearance of the absent child. without notice of the condition imposed. (Public policy baby!)
If the donor dies within the period, the action is transmitted to his In case of non-fulfillment by the donee of any of the conditions imposed
legitimate and illegitimate children and descendants (not the spouse or by the donor, the donation shall be revoked at the instance of the donor.
ascendants of the donor). o But, the donor may instead file for an action of specific
In case more than one cause or ground for revocation or reduction performance to compel the donee to comply with the
concur, the period of prescription must run from the earliest cause. conditions.
Reduction of a donation upon the allegation of impairment of legitime is The action must be brought within 4 years from the non-compliance with
not controlled by a particular prescriptive period for which reason the the condition – it can only be brought by the donor or his heirs against
period shall be governed under the ordinary rules of prescription. Under the donee’s heirs (compare to Articles 769 and 770).
Article 1144, the action must be brought within 10 years from the time The death of the donor or the donee does not bar the action to revoke
the right of action accrues, which is the death of the donor. for failure of the donee to comply with the conditions, provided the
The action cannot be waived. (Compare to the next article!) prescriptive period has not yet expired.
Unlike the action for revocation or reduction under Article 763, the
Art. 764. The donation shall be revoked at the instance of the donor, action may be waived because the condition is purely contractual in
when the donee fails to comply with any of the conditions which the nature.
former imposed upon the latter.
In this case, the property donated shall be returned to the Is court action necessary?
donor, the alienations made by the donee and the mortgages imposed
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In any case, a court action is necessary if the donee refuses to return o In cases like these, judicial intervention is necessary not for
the property or to comply with the conditions. purposes of obtaining a judicial declaration rescinding a
The deed of donation, however, may provide that violation of any of its contract already deemed rescinded but in order to determine
conditions shall cause the automatic rescission of the contract. In such whether or not the rescission was proper. (De Luna)
case, upon the violation, the donation is automatically revoked, without When the deed of donation expressly provides for automatic rescission
need of a judicial declaration. and reversion of the property donated, the rules on contract and the
o Except where the donee denies the donor’s right to rescind, in general rules on prescription should apply, not 764. (Roman Catholic
which case, judicial intervention is necessary to determine Archbishop of Manila v CA)
whether or not the rescission is proper. o A donor cannot revoke the donation on the grounds for non-
In the absence of an agreement in the donation providing of an compliance of an impossible condition. (Archbishop of Manila v
automatic rescission, a judicial declaration revoking said donation will CA)
be necessary. A declaration of petitoner’s absolute ownership appears legally possible
only when the deed of donation is contextually declared peremptorily
Case doctrines revoked. (Dolar v Barangay Lublub)
When land is donated on several express conditions, acceptance by the The act of selling property to a 3rd party cannot be considered as a valid
donee will be understood to include all of the conditions not umistakably act of revocation of the deed of donation for the reason that a formal
rejected. (Barreto v Manila) case to revoke the donation must be filed which speaks of an action that
When the donee has entered into possession of the property, effect will has a prescriptive period of 4 years from non-compliance with the
be given to the donation according to the terms of the offer and condition. In this case, there was no provision of automatic rescission,
acceptance, although the formal deed has not been executed. (Barreto) thus placing the case within the ambit of Article 764. (Austria-Magat v
If there is no fulfillment with the resolutory condition, the donation may CA)
now be revoked and all rights which the donee may have acquired When the donation is onerous and does not fix a period to comply with
under it shall be deemed lost and extinguished. (Central Phil University the condition, the courts should fix a period to uphold the greatest
v CA) reciprocity of rights. If it is gratuitous, then they should not, to uphold the
Article 764 does not apply to onerous donations because onerous least reciprocity of rights and interests.
donations are governed by the rules of Contracts. Hence, the It’s important to determine whether or not the donation is onerous or not
prescription period is 10 years, not 4 years. (De Luna v Abrigo) so that we know what law to apply.
o While courts are given the power to fix the duration when the
condition is to be fulfilled when none is given, if the facts show Art. 765. The donation may also be revoked at the instance of the
that a reasonable period has already been allowed the donee donor, by reason of ingratitude in the following cases:
to avail of the opportunity to comply with the condition, then the (1) If the donee should commit some offense against the
courts will no longer give the donee a period. (Central Phil Uni) person, the honor or the property of the donor, or of his wife or
o The legal possibility of bringing the action begins with the children under his parental authority;
expiration of a reasonable opportunity of the donee to fulfill (2) If the donee imputes to the donor any criminal offense, or
what has been charged upon it by the donor. (Sec of Education any act involving moral turpitude, even though he should prove it,
v Heirs of Dulay) unless the crime or the act has been committed against the donee
Nothing in law prohibits parties from entering into an agreement that himself, his wife or children under his authority;
violation of the terms of the contract would cause cancellation thereof (3) If he unduly refuses him support when the donee is legally
even without court intervention. or morally bound to give support to the donor. (648a)
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Article 765 does not apply to donations mortis causa and onerous Art. 766. Although the donation is revoked on account of ingratitude,
donations. nevertheless, the alienations and mortgages effected before the
A donation propter nuptias may be revoked by the donor when the notation of the complaint for revocation in the Registry of Property
donee has committed an act of ingratitude as specified in Article 765. shall subsist.
The enumeration is exclusive and cannot be enlarged. Later ones shall be void. (649)
The act of ingratitude must have been committed by the donee himself
because the duty of gratitude is personal. An act imputable to the Art. 767. In the case referred to in the first paragraph of the preceding
husband or wife or the hot mistress of the donee is not a ground for article, the donor shall have a right to demand from the donee the
revocation. value of property alienated which he cannot recover from third
persons, or the sum for which the same has been mortgaged.
Offense against the donor, etc The value of said property shall be fixed as of the time of the
Criminal conviction is not needed. It is sufficient that the offense be donation. (650)
proved by mere preponderance of evidence in the action for revocation.
If the offense is committed against a child who is no longer under Effect of revocation on prior alienations and mortgages
parental authority, the donation cannot be revoked. If by non-compliance
In case of revocation of a donation by non-compliance by the donee
Imputation to donor of any criminal offense, etc with any of the conditions imposed, alienations and mortgages made by
It is immaterial that the donee can prove his accusation or substantiate the donee are void, subject only to the rights of innocent third persons.
his testimony against the donor. The donor can recover from the donee:
o The exception is when the crime has been committed against o Only the value of the property donated at the time of the perfection
the donee himself, his wife or children under his parental of the donation, OR
authority. o The sum for which it was mortgaged.
o The act involving moral turpitude may not amount to a crime. Recovery cannot be had against the third person unless he acted in bad
faith as when had actual knowledge of the cause for revocation or the filing
Refusal to support the donor of the action.
There are two requisites:
If by reason of ingratitude
1. The refusal to support the donor must be undue, that is,
without just reason; and If the revocation is by reason of ingratitude, the alienations and
2. The donee must be legally or morally bound to support the mortgages made by the donee before the complaint for revocation is
donor. annotated in the Registry of Property shall subsist or are valid. Later
alienations and mortgages shall be void.
Note that ingratitude extends beyond failure to do a legal duty to support
and includes a moral duty to help. (donee is a friend who is penniless The donor can recover the property from the transferee or
and asks for help, and the donor shuns her away like a scorned lover.) mortgagee.
Case doctrine The donation of land by Ron to Erin was made on July 10. Erin sold the land
to Tara on July 20. The act of ingratitude was done on July 30. The
All crimes which offend the donor show ingratitude and are causes for
complaint for revocation was annotated on August 10. Thus, the sale to Tara
revocation. Any crime under the Revised Penal Code is one involving
is valid, and the remedy of Ron is to recover from Eric the value of the land
moral turpitude. (Spouses Romulo v CA)
at the time of the donation.
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If the sale was made after August 10, the sale is void and Ron can recover year, to be counted from the time the donor had knowledge of the fact
the land from Tara. and it was possible for him to bring the action. (652)
If the act of ingratitude was committed on July 20, the sale on July 30 and Renunciation and prescriptive period of action by reason of ingratitude
the complaint which was filed on July 25 and was annotated on July 31, but The action granted to the donor for revocation by reason of ingratitude,
at the time of the sale Tara was aware of the act of ingratitude committed by like the action based on the birth, appearance, or adoption of a child
Erin, or the pending action by Ron, the sale should not be considered valid cannot be renounced in advance.
because Tara acted in bad faith, and so Ron can recover the land from her. What the law prohibits is waiver, prior to the commission of the act of
ingratitude.
Art. 768. When the donation is revoked for any of the causes stated in A past ingratitude can be the subject of a valid renunciation because the
Article 760, or by reason of ingratitude, or when it is reduced because renunciation can be considered as an act of magnanimity on the part of
it is inofficious, the donee shall not return the fruits except from the the donor.
filing of the complaint. The action prescribes…
If the revocation is based upon noncompliance with any of the 1. Within one year from the time the donor had knowledge of the
conditions imposed in the donation, the donee shall return not only the act of ingratitude AND
property but also the fruits thereof which he may have received after 2. It was possible for him to bring the action.
having failed to fulfill the condition. (651) To bar the action, the donee must show proof that the one-year period
has expired and it was possible for the donor to institute the said action
Return by donee of the fruits of property donated within the same period.
The rules depend upon the cause of revocation or reduction
o If the cause is: Art. 770. This action shall not be transmitted to the heirs of the donor,
the birth, appearance or adoption of a child, or if the latter did not institute the same, although he could have done so,
ingratitude, or and even if he should die before the expiration of one year.
inofficiousness of the donation (because the donor did not Neither can this action be brought against the heir of the
reserve sufficient means for support), or donee, unless upon the latter's death the complaint has been filed.
he donated more than he could give by will, then (653)
only the fruits accruing from the filing of the
complaint need be returned. Transmission of action for revocation
It can be implied that the donation remains valid General rule: The action to revoke a donation by reason of ingratitude is
up to the time of the filing of the complaint. purely personal to the donor and cannot, as a rule, be transmitted to the
If the cause is the non-fulfillment of any of the conditions imposed in the heirs.
donation, the fruits must be returned from the time of the breach of the This is unlike the action for revocation based on the birth, appearance
condition. The donation shall also return the property donated. or adoption of a child and the action based on non-compliance with the
In case of inofficious donation which exceeds the free disposal by will, condition of a donation.
the donation takes effect during the lifetime of the donor, the donee However, the particular circumstances of the case should be taken into
appropriates the fruits, and the reduction may be asked only after the account to determine whether it was possible to bring the action. Hence,
donor’s death. the following exceptions wherein the heirs of the donors can ask for the
revocation:
Art. 769. The action granted to the donor by reason of ingratitude 1. If the donee killed the donor, or
cannot be renounced in advance. This action prescribes within one 2. If the donor dies without having known of the act of ingratitude,
or
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3. If a criminal case against the donee was instituted by the Art. 911. After the legitime has been determined in accordance with the
donor, but the donor dies before he could bring the civil action three preceding articles, the reduction shall be made as follows:
for revocation; or (1) Donations shall be respected as long as the legitime can be covered,
4. If the action for revocation has already been filed by the donor reducing or annulling, if necessary, the devises or legacies made in the will;
before his death. (2) The reduction of the devises or legacies shall be pro rata, without any
distinction whatever. If the testator has directed that a certain devise or
Action against heirs of donee legacy be paid in preference to others, it shall not suffer any reduction until
The heirs of the donee are not held responsible for the acts of their the latter have been applied in full to the payment of the legitime.
predecessor-donee. The act of ingratitude. (The sins of the father are (3) If the devise or legacy consists of a usufruct or life annuity, whose value
not the sins of the son… although, there are some instances where we may be considered greater than that of the disposable portion, the
repeat the mistakes of our parents. General rule? Learn.) compulsory heirs may choose between complying with the testamentary
But if the donor has already filed the complaint before the donee’s provision and delivering to the devisee or legatee the part of the inheritance
death, the suit may be continued against his heirs. of which the testator could freely dispose. (820a)
Art. 912. If the devise subject to reduction should consist of real property,
Art. 771. Donations which in accordance with the provisions of Article which cannot be conveniently divided, it shall go to the devisee if the
752, are inofficious, bearing in mind the estimated net value of the reduction does not absorb one-half of its value; and in a contrary case, to the
donor's property at the time of his death, shall be reduced with regard compulsory heirs; but the former and the latter shall reimburse each other in
to the excess; but this reduction shall not prevent the donations from cash for what respectively belongs to them.
taking effect during the life of the donor, nor shall it bar the donee from The devisee who is entitled to a legitime may retain the entire property,
appropriating the fruits. provided its value does not exceed that of the disposable portion and of the
For the reduction of donations the provisions of this Chapter share pertaining to him as legitime. (821)
and of Articles 911 and 912 of this Code shall govern. (654)
Art. 772. Only those who at the time of the donor's death have a right to
Reduction of inofficious donations the legitime and their heirs and successors in interest may ask for the
Donations which are inofficious because they are more than what the reduction or inofficious donations.
donor can give by will shall be reduced with regard to the excess upon Those referred to in the preceding paragraph cannot renounce
the death of the donor, after determining the net value of the estate. their right during the lifetime of the donor, either by express
Thus, it follows that the donation is effective during the lifetime of the declaration, or by consenting to the donation.
donor and so, the donee, as owner of the property donated also The donees, devisees and legatees, who are not entitled to the
becomes owner of the fruits, although the donation should appear legitime and the creditors of the deceased can neither ask for the
inofficious. reduction nor avail themselves thereof. (655a)
For donations propter nuptias, they may be reduced for being
inofficious. Being liberalities, they remain subject to reduction for Persons entitled to ask for reduction… who are they?
inofficiousness upon the donor’s death, if they should infringe the For the reduction of inofficious donations,
legitime of a forced heir. 1. those who at the time of the donor’s death have a right to the
The action to reduce the inofficious donation must be brought within 5 legitime, and
years from the time of the donor’s death. 2. their heirs, and
For reduction of donations, the following articles, quoted below shall 3. succesors in interest.
govern: The donor is not included, patay na siya eh. The inofficiousness can
only be determined after his death.
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PROPERTY NOTES
the donor or years (Santos first column for fruits entitled to appropriates owner, the
by the v Alana case, rescission the fruits as the fruits as appropriate property
relatives based on must be owner of the owner of the s the fruits affected
entitled to 1144) brought property property of the shall also
support within 4 donated property not be
during the Within 5 years years from affected by returned. In
lifetime of after the the the case the
the donor death of the perfection reduction, donee
donor (if of the but with acted in
propter donation, regard to bad faith
nuptias, or at the the excess, and it
according to latest, from he shall be should be
book) the time liable only impossible
the creditor for the fruits for him to
had from the return, then
knowledge filing of the indemnify
of the complaint the donor’s
donation creditor for
Transmissibilit Not Transmitted to Same as in Transmitte damages.
y of action transmissibl the donor’s first column d to the
e as the heirs as the creditor’s Happy the man who finds wisdom, the man who gains understanding!--
duty to give donation shall heirs or Proverbs 3:13
support and be reduced as successors
the right to regards the -in-interest Thus you may walk in the way of good men, and keep to the paths of the
receive are excess at time just. For the upright will dwell in the land, the honest will remain in it; But the
personal in of the donor’s wicked will be cut off from the land, the faithless will be rooted out of it.--
nature death Proverbs 2:20-22
Effect of Reduced to Takes effect Same as in Property
revocation the extent during the first column affected
necessary lifetime of the shall be
to provide donor subject returned by
support to reduction the donee
only upon his for the
death with benefit of
regard to the the creditor
excess subject to
the rights
of innocent
third
persons
Liability for Donee is Donee Donee, as Fruits of
128
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!