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Ad Majorem Dei Gloriam


PROPERTY NOTES
PRELIMINARY PROVISIONS
Art 414 All things which are or may e the o!ect o" a##ro#riation are
consi$ere$ either%
1& Immo'ale or real #ro#erty( or
)& Mo'ale or #ersonal #ro#erty&
Whats a thing?
any object that exists and is capable of satisfying some human needs
includes both objects that are already possessed or owned and those
that are susceptible of appropriation
more comprehensie term !than property"# as there are things which are
not susceptible of appropriation and they are not included in the concept
of property
Whats property?
refers to any thing which is already the object of appropriation or found
in the possession of man

$e%uisites of property
&' (tility
)apacity to satisfy some human wants
*' +ubstantiity
,uality of haing existence apart from any other thing
-' Appropriability
+usceptibility of being possessed by man
Res communes or common things are not capable of appropriation in
their entirety# although they may be appropriated under certain
conditions in a limited way# and thereby become property in law
o .lectricity# oxygen# etc
Res nullius or a thing may hae no owner because it has not yet been
appropriated# or because it has been lost or abandoned by the owner' it
constitutes property as long as it is susceptible of being possessed for
the use of man
o Wild animals# hidden treasure
/hings cannot be considered as property when they are not susceptible
of appropriation because of
o legal impossibility !you cant sell your body while youre alive,
at least not legally) or
o physical impossibility !you cant own the moon, at least not yet)
$ights as property
0property1 is sometimes used to denote the thing with respect to which
legal relations between persons exist 2 the res oer which rights
!particularly ownership" may be exercised 2 and sometimes to the rights
with respect to the thing
either real or property
What is a real right?
$ight or interest belong to a person oer a specific thing
Without a definite passie subject against whom such right may be
personally enforced
Jus in re
/he res of a real right may be
o 3ersonal property !as in pledge and chattel mortgage"
o $eal property !easement# real mortgage"
o .ither personal or real !as in ownership# possession# usufruct"
4f the res of a real right is real property# the right itself is real property5
otherwise it is personal property
)lassification of real rights based upon dominion
&' Domino pleno 2 powers to enjoy and to dispose are united
a' Dominion# ciil possession# hereditary right
*' Domino menos pleno 2 powers to enjoy and dispose are separated
a' +urface right# usufruct
-' Domino limitado 2 powers to enjoy and to dispose# though united# are
limited
a' 6y a guaranty !mortgage# pledge"
b' 6y a charge !easement"
c' 6y a priilege !pre7emption# redemption"
What is a personal right?
$ight or power of a person
/o demand from another as a definite subject
/he fulfillment of the latters obligation'
Jus in personam or jus ad rem
3ersonal right# or right of obligation# has the following elements8
&' Actie subject !person in whom the right resides"
*' 3assie subject !person against whom the right is aailable"
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Ad Majorem Dei Gloriam
PROPERTY NOTES
-' ?bject or prestation or the conduct !to gie# to do# or not to do"
@' Auridical or legal tie which binds the parties to the obligation
$eal $ight
Definite actie subject
who has a right against all
persons generally as an
indefinite passie subject
?bject is generally a
corporeal thing
)reated by Bmode and
Btitle
.xtinguished by the loss
or destruction of the thing
which it is exercised
Directed against the
whole world !actio in rem
against -
rd
persons"
3ersonal $ight
Definite actie subject and a
definite passie subject
?bject always an incorporeal
thing
)reated by Btitle
3ersonal right suries the
subject matter
Directed against a particular
person !actio in personam"
Whats the importance of the classification into moables or immoables?
4n priate international law# general rule is that immoables are
goerned by the law of the country in which they are located# whereas
moables are goerned by the personal law of the owner which in cases
is the law of his nationality or his domicile
4n criminal law# usurpation of property can ta9e place only with real
property' ?n the other hand# robbery and theft can be committed only
against personal property
4n procedural law# actions concerning real property are brought in the
$/) where the property is located# whereas actions inoling personal
property are brought in the court where either the defendant or plaintiff
resides'
o Corcible entry and unlawful detainer for $.A: property
o $eplein or manual deliery for 3.$+?=A:
4n contracts# only real property can be the subject matter of real
mortgage and antichresis# while only personal property can be the
subject matter of mutuum# oluntary deposit# pledge
4n order that the donation of an immoable may be alid# it must be
made in a public instrument' Cor moables# may be oral or in writing !if
more than 3<;;;# need only to be in a priate instrument"
Cor prescription !@ and D years for moables5 &; and -; years for
immoables"
/ransactions inoling real property must be recorded in the $egistry of
property to affect -
rd
parties' =ot re%uired with personal property# except
for chattel mortgage cases'
Art 41* The "ollowing are immo'ale #ro#erty%
1& Lan$+ ,il$ings+ roa$s+ an$ constr,ctions o" all -in$s a$here$ to
the soil(
)& Trees+ #lants+ an$ growing "r,its+ while they are attache$ to the
lan$ or "orm an integral #art o" an immo'ale(
.& E'erything attache$ to an immo'ale in a "i/e$ manner+ in s,ch a
way that it cannot e se#arate$ there"rom witho,t rea-ing the
material or $eterioration o" the o!ect(
4& Stat,es+ relie"s+ #aintings or other o!ects "or ,se or
ornamentation+ #lace$ in ,il$ings or on lan$s y the owner o" the
immo'ale in s,ch a manner that it re'eals the intention to attach
them #ermanently to the tenements(
*& Machinery+ rece#tacles+ instr,ments or im#lements inten$e$ y the
owner o" the tenement "or an in$,stry or wor-s which may e
carrie$ on ina ,il$ing or on a #iece o" lan$+ an$ which ten$
$irectly to meet the nee$s o" sai$ in$,stry or wor-s(
0& Animal ho,ses+ #igeon1ho,ses+ eehi'es+ "ish #on$s or ree$ing
#laces o" similar nat,re+ in cases their owner has #lace$ htem or
#reser'es them with the intention to ha'e them #ermanently
attache$ to the lan$+ an$ "orming a #ermanent #art o" it( the
animals in these #laces are incl,$e$(
2& 3ertili4er act,ally ,se$ on a #iece o" lan$(
5& Mines+ 6,arries+ an$ slag $,m#s+ while the matter thereo" "orms
#art o" the e$+ an$ waters either r,nning or stagnant(
7& 8oc-s an$ str,ct,res which+ tho,gh "loating+ are inten$e$ y their
nat,re an$ o!ect to remain at a "i/e$ #lace on a ri'er+ la-e+ or
coast(
19& :ontracts "or #,lic wor-s+ an$ ser'it,$es an$ other real rights
o'er immo'ale #ro#erty&
)lasses of immoable or real property !=4DA"
&' 6y nature !cannot be carried from place to place"
*' 6y incorporation !attached to an immoable in a fixed manner to be an
integral part thereof"
-' 6y destination !placed in an immoable for the utility it gies"
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PROPERTY NOTES
@' 6y analogy !by express proision of law because it is regarded as
united to the immoable property"
:ands# buildings# roads and constructions of all 9inds
Must adhere to the soil
6uildings 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
the law ma9es no distinction !so possible to mortgage building een if in
the land of another# since its separate from the land
$oads# whether public or priate# are immoable
$eal property treated by the parties as personal property
o A building is by itself an immoable property irrespectie of
whether or not said structure and the land on which it is adhere to
belong to the same owner
o A alid real estate mortgate can be constituted only on the
building erected on the land belonging to another
o /he parties to a contract of chattel mortgage may# by agreement#
treat as personal property that which by nature would be real
property !estopped> +o they can be subject to a writ of replein
between parties"
Eoweer# the chattel mortgage is not binding on third
persons'
/rees# plants and growing fruits
4mmoable while they are8
o Attached to the land# or
o Corm an integral part of an immoable
?nce cut or uprooted# they become moable
Growing crops or fruits# or ungathered products or fruits# may be treated
as personal property for the purposes of attachment# execution and the
chattel mortgage law !+ibal FaldeG"
When growing crops are sold and before they are een harested# the
transaction is considered as sale of moables because it is a gien that
they are to be gathered or harested for deliery
.erything attached to an immoable in a fixed manner
Attachment must be such that
o 4t cannot be separated from the immoable
o Without brea9ing the material# or
o Deterioration of the object
4f temporarily separated# will still be regarded as immoable if there is
an intent to put them bac9 !but there are different opinions to this"
4ntent to attach permanently is essential 2 objects placed by humans
with intention to permanent annexation lose their identity as moables
+tatues# reliefs# paintings# or other objects for use or ornamentation
4mmoable when8
o 3laced on the immoable by the owner of the latter# and
o 4n such a manner that it reeals the intention to attach them
permanently to the tenements
=ot necessarily by him personally# can be by his agent
4f placed by a person not the owner li9e a lessee# the object will not
attain the character of immoable unless such person acts as an agent
of the owner
Machinery# receptacles# instruments# or implements for an industry or wor9s
4mmoable only when8
o 3laced by the owner of the tenement or his agent
o 4ndustry or wor9s must be carried on in a building or on a piece
of land
o Machinery# etc must tend directly to meet the needs of the said
industry or wor9s
Machinery which is moable in its nature only becomes immobiliGed
when placed in plant by the owner of the property or plant# but not when
so placed by a tenant# a usufructuary# or any person haing only a
temporary right !Davao Saw Mill v Castillo)
o .xception !becomes immoable"8
&' +uch person acted as the agent of the owner# or
*' :ease agreement states that the machines will pass oer to
the lessor after the expiration of the lease agreement !S
!alde" case"
Must be essential and be principal elements of an industry or wor9s to
the business# not merely incidental to business !Mindanao #us
Company v City $ssessor"
o )ash registers# typewriters for hotels# restaurants# theaters are
merely incidental# these businesses can continue on without
them
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PROPERTY NOTES
o Machineries of breweries used in the manufacture of li%uor#
though moable by nature# are immobiliGed because they are
essential to said industries
Cor purposes of taxation# it doesnt matter who placed the machines 2
the owner or mere lessee# as long as it is essential and principal
elements of an industry' /he term Breal property may include things
which should generally as personal property' 4t is a familiar
phenomenon to see things classified as real property for purposes of
taxation which on general principle might be considered personal
property' !Meralco v Central #oard o% $ssessment $ppeals & in this
case, the storage tan's were placed by Meralco, who wasnt the owner
o% the land, but it was still considered immovable)
Attachment or incorporation to immoable not essential# since they
become immoable because of destination# what is essential is their
utility
Animal houses# pigeon houses# beehies# fish ponds or breeding places of
similar nature
)onsidered immoable8
o 4n case their owner has placed them or preseres them
o With the intention to hae them permanently attached to the
land
o And forming a permanent part of it'
o /he animals in these places are included'
Must permanently form part of the land and so intended by the owner
CertiliGers actually used on a piece of land
4mmoable when
o Actually used on a piece of land
CertiliGers 9ept in a barn are not immoable
Mines# %uarries and slag dumps
4mmoable when
o While the matter thereof forms part of the bed
o Meaning# the matter thereof remains unseered from the soil
Waters# either running or stagnant# are classified as immoables
Doc9s and structures# though floating
4mmoable if
o 4ntended by their nature and object
o /o remain at a fixed place on
o A rier# la9e or coasts
)ontracts for public wor9s and seritudes and other real rights oer
immoables
Where the res of a real right is real property# the right itself is real
property' +o ownership is real property if the thing owned is immoable
o :oan is real property by analogy if secured by a real estate
mortgage
Where it is personal property# the right itself is personal property
o .xception8 case of contracts for public wor9s which are
considered real property

:;APTER T<O% MOVA=LE PROPERTY


Art 410 The "ollowing things are $eeme$ to e #ersonal #ro#erty%
1& Those mo'ales s,sce#tile o" a##ro#riation which are not
incl,$e$ in the #rece$ing article(
)& Real #ro#erty which y any s#ecial #ro'ision o" law is consi$ere$
as #ersonalty(
.& 3orces o" nat,re which are ro,ght ,n$er control y science( an$
4& In general+ all things which can e trans#orte$ "rom #lace to #lace
witho,t im#airment o" the real #ro#erty to which they are "i/e$&
Art 412 The "ollowing are also consi$ere$ as #ersonal #ro#erty%
1& Oligations an$ actions which ha'e "or their o!ect mo'ales or
$eman$ale s,ms(
)& Shares o" stoc- o" agric,lt,ral+ commercial an$ in$,strial entities+
altho,gh they may ha'e real estate&
)lasses of moable or personal property
&' 3roperty not included in Art @&<
*' )onsidered personal property by special proision of law
-' Corces of nature brought under control by science
@' 4n general# all moable things
a' Whether the property can be transported or carried
from place to place5
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PROPERTY NOTES
b' Whether such change of lacation can be made
without injuring the immoable to which the object
may be attached# and
c' Whether the object does not fall within any one of the
cases in Art @&<
<' ?bligations and actions !personal rights# they haing a definite
passie subject"
H' +hares of stoc9
I' ?ther incorporeal personal property
a' 4ntellectual property such as copyrights# patents# etc
Art 415 Mo'ale #ro#erty is either cons,male or non1cons,male& To
the "irst class elong those mo'ales which cannot e ,se$ in a
manner a##ro#riate to their nat,re witho,t their eing cons,me$( to
the secon$ class elong all the others&
4mportance of classification8
)onsumable goods cannot be the subject matter of a commodatum
!unless for mere exhibition"
4n a mutuum# the subject matter is money or other consumable thing
)onsumable
Depends on nature of thing itself
)ant be used in a manner appropriate to their nature without being
consumed
Cungible
Depends on the intention or purpose of the parties
)an be substitute by another thing of the same 9ind# %uantity and
%uality
Money# while characteriGed as a moable# is generic and fungible' !#()
v *ranco)
:;APTER T;REE% PROPERTY IN RELATION TO <;OM IT
=ELON>S
Art 417 Pro#erty is either o" #,lic $ominion or o" #ri'ate ownershi#
3roperty is either of
&' 3ublic dominion or property owned by the +tate !or its subdiisions" in
its public or soereign capacity and intended for public use and not for
the use of the +tate as a juridical person
*' 3riate ownership or property owned by8
a' /he state in its priate capacity5 9nown as patrimonial property
b' 3riate persons# either indiidually or collectiely
3roperty is presumed to be +tate property in the absence of any showing to
the contrary' !$egalian Doctrine"
Whats dominion?
&' =ot owned by the +tate but simply under its jurisdiction and
administration for the collectie enjoyment of all the people of the +tate
*' 3urpose is to sere the citiGens# not the +tate as juridical person
-' $ises from the fact that the +tate is the juridical representatie of the
social group
Art 4)9 The "ollowing things are #ro#erty o" #,lic $ominion%
1& Those inten$e$ "or #,lic ,se+ s,ch as roa$s+ canals+ ri'ers+
torrents+ #orts an$ ri$ges constr,cte$ y the States+ an-s
shores+ roa$stea$s an$ others o" similar character
)& Those which elong to the State+ witho,t eing "or #,lic ,se+
an$ are inten$e$ "or some #,lic ser'ice or "or the
$e'elo#ment o" the national wealth
/hree 9inds of public dominion property
&' 4ntended for public use
)an be used by eerybody
*' =ot for public use but intended for some specific public serice
?nly be used by duly authoriGed people# such as goernment
buildings# etc
-' 4ntended for the deelopment of national wealth# een if not employed
for public use or serice
Minerals# coal# oil# forests
)harging of fees to the public does not affect the public character of the road
or its character as property for public use'
What are other property of similar character to those intended for public
use?
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PROPERTY NOTES
&' 3ublic streams# rier channels# rier beds# etc
*' Accretions to the shores of the sea
-' +ubmerged lands or lands reclaimed from the sea by the goernment
Mere reclamation of certain foreshore land does not conert these
inalienable natural resources of the state into alienable or
disposable lands of the public domain'
/here must be a law or proclamation officially classifying them
such'
@' :ands that disappeared into the sea
<' )anals constructed on priate lands of priate ownership but the owner
loses his proprietary right oer said canal through prescription by
allowing the public to use it for transportation
H' Coreshore lands when the sea moed toward an estate and the tide
inade it# the inaded property becomes foreshore and passes to the
public realm
7 Coreshore land is the strip of land that lies between the high and
low water mar9s
I' :ot on which stairways were built for the use of the people as
passageway to the highway
$oads refer to those constructed by the national goernment
)anals constructed by priate persons oer priate lands are of priate
ownership
$oadstead is a place less sheltered or enclosed than a harbor where
ships may ride at anchor
3roperties of public dominion are outside of the commerce of man' Again#
their purpose is to sere the citiGens'
/hey can not be the object of appropriation either by the +tate or priate
persons'
+oJ
&' )annot be sold# leased or be the subject of contracts
*' )annot be ac%uired by prescription# not een by municipalities as
against the +tate
-' )annot be encumbered# attached# or be subject to ley and sold at
public auction'
@' )annot be burdened with easements
<' )annot be registered under the land registration law and be the subject
of a /orrens title
4nclusion of public dominion property does not confer title on the
registrant
3ublic lands Goernment lands
3ublic lands
:ands of the public domain
Does not include all lands of goernment ownership but only so much of
said lands as are thrown open to priate appropriation and settlement
by homestead law
Goernment lands
6roader term
4ncludes not only public lands# but alsoJ
&' other lands of the goernment already resered or deoted to
public use#
*' or subject to priate rights#
-' and patrimonial lands
Alienation of public agricultural land
(nless pubic land is shown to hae been reclassified and alienated by
the +tate to a priate person# it remains part of the inalienable public
domain
All other lands are presumed to belong to the +tate
Art 4)1 All other #ro#erty o" the State+ which is not o" the character
state$ in the #rece$ing article+ is #atrimonial #ro#erty&
3atrimonial property
3roperty of the +tate owned by it in its priate or proprietary character
=ot for public use# serice or deelopment of the national
wealth
May be ac%uired by priate indiiduals or juridical persons through
prescription5 can be the object of an ordinary contract
Art 4)) Pro#erty o" #,lic $ominion+ when no longer inten$e$ "or
#,lic ,se or "or #,lic ser'ice+ shall "orm #art o" the #atrimonial
#ro#erty o" the State&
3roperty of the =ational Goernment
=ot self7executing
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/here must be a formal declaration by the executie !exercised by the
3resident" or possibly legislatie department that the property is no
longer needed for public use or for public serice before the same can
be classified as patrimonial property
A positie act declaring land as alienable and disposable is re%uired
&' 3residential proclamation or executie order
*' Administratie action
-' 4nestigation reports of 6ureau of :ands inestigators
@' :egislatie act or a statute !Sec o% D+,R v -ap"
)lassification of public lands is the exclusie prerogatie of the
.xecutie Department 2 courts hae no authority !Sec o% D+,R v -ap)
Abandonment cannot be inferred from non7use' !Roponggi case)
/wo re%uisites for judicial confirmation of imperfect or incomplete title#
under )A &@&
./ open# continuous# exclusie and notorious possession and
occupation of the subject land by himself or through his
predecessors7in7interest under a bona fide cliam of ownership
since time immemorial or from Aune &*# &K@<
0/ classification of the land as alienable and disposable land of
the public domain !Sec o% D+,R v -ap)
(nclassified land? )onsidered as forest land !Sec o% D+,R v -ap)
3roperty of 3olitical +ubdiisions
Cor proinces# cities and municipalities# the conersion must be
authoriGed by law
Municipal corporation has discretionary power to withdraw a street from
public use and sell it' !Cebu 12ygen v #ecilles"
Art 4). The #ro#erty o" #ro'inces+ cities+ an$ m,nici#alities is $i'i$e$
into #ro#erty "or #,lic ,se an$ #atrimonial #ro#erty&
Art 4)4 Pro#erty "or #,lic ,se+ in the #ro'inces+ cities+ an$
m,nici#alities+ consist o" the #ro'incial roa$s+ city streets+ m,nici#al
streets+ the s6,ares+ "o,ntains+ #,lic waters+ #romena$es+ an$ #,lic
wor-s "or #,lic ser'ice #ai$ "or y sai$ #ro'inces+ cities or
m,nici#alities&
All other #ro#erty #ossesse$ y any o" them is #atrimonial an$ shall
e go'erne$ y this :o$e+ witho,t #re!,$ice to the #ro'isions o"
s#ecial laws&
3roperty of 3olitical +ubdiisions
=ote that the articles spea9 of property for public use# indicating that
properties for public serice are patrimonial' !ambulance of the local
goernment"
3olitical subdiisions cannot register as their own any part of the public
domain# unless it is first shown that a grant thereof has been made or
possession has been enjoyed during the period necessary to establish a
presumption of ownership'
4f the property is owned by the municipality in its public and
goernmental capacity# the property is public and )ongress has
absolute control oer it'
4f it is owned in its priate or proprietary capacity# then it is patrimonial
and )ongress has no control oer it' !page H-# de :eon"
)ase doctrines8
/he use of subdiision roads by the general public does not strip it of its
priate character'
/ransfer of ownership from the subdiision owner7deeloper to the local
goernment is not automatic but re%uires a positie act from the owner7
deeloper before the city or municipality can ac%uire dominion oer the
subdiision roads' (ntil and unless the roads are donated# ownership
remains with the owner7deeloper' !3oodridge School, )nc v $R#
Construction Co, )nc)
Art 4)* Pro#erty o" #ri'ate ownershi#+ esi$es the #atrimonial #ro#erty
o" the State+ #ro'inces+ cities+ an$ m,nici#alities+ consists o" all
#ro#erty elonging to #ri'ate #ersons+ either in$i'i$,ally or
collecti'ely&
3riate property
&' 6elonging to priate persons# either indiidually or collectiely
*' 6elonging to the +tate and any of its subdiisions which are patrimonial
in nature
/here is nothing that will prohibit churches from alienating things
classified into Bsacred# religious# and holy'
Art 4)0 <hene'er y #ro'ision o" law+ or an in$i'i$,al $eclaration+ the
e/#ression ?immo'ale things or #ro#erty@ or ?mo'ale things or
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#ro#erty@ is ,se$+ it shall e $eeme$ to incl,$e+ res#ecti'ely+ the
things en,merate$ in :ha#ter 1 an$ :ha#ter )&
<hene'er the wor$ ?muebles or ?",rnit,re+@ is ,se$ alone+ it
shall not e $eeme$ to incl,$e money+ cre$its+ commercial sec,rities+
stoc-s an$ on$s+ !ewelry+ scienti"ic or aristic collections+ oo-s+
me$als+ arms+ clothing+ horses or carriages an$ their accessories+
grains+ li6,i$s an$ merchan$ise+ or other thing which $o no ha'e as
their #rinci#al o!ect the ",rnishing or ornamenting o" a ,il$ing+
e/ce#t where "rom the conte/t o" the law+ or o" the in$i'i$,al
$eclaration+ the contrary clearly a##ears&
TITLE II A O<NERS;IP
:;APTER ONE% O<NERS;IP IN >ENERAL

Art 4)2 Ownershi# may e e/ercise o'er things or rights
?wnership is theJ
4ndependent right of a person to the exclusie enjoyment and control of
a thing
4ncluding its disposition and recoery subject only to the
restrictions or limitations established by law and the rights of
others
6eneficial ?wnership
?wnership recogniGed by law and capable of being enforced in court
$ight to enjoyment in one person# legal title is in another
=a9ed ?wnership
.njoyment of all the benefits and priileges of ownership
?wnership may be exercised oer things or rights
&' /hing 2 usually refers to corporeal property
*' $ights 2 whether real or personal# res of rights may be corporeal or
incorporeal
Art 4)5 The owner has the right to en!oy an$ $is#ose o" a thing+
witho,t other limitations than those estalishe$ y law&
The owner has also a right o" action against the hol$er an$ #ossessor
o" a thing in or$er to reco'er it&
/he seen jus7es
&' 3ossidendi
*' (tendi
-' Cruendi
@' Accessionis
<' Abutendi
H' Disponendi
I' Findicandi
$ight to possess or jus possidendi
right to hold a thing or enjoy a right !Art <*-"
may be exercised in ones own name or in that of another
&' $ight to use not necessarily included
May be in the concept of an owner or a mere holder with the
ownership pertaining to another
$ight to possess does not always include the right to use
*' Audgment of ownership may not include possession
3erson may be declared owner but he may not be entitled to
possession which may be in the hands of another such as a tenant
6ut> /his doctrine may be ino9ed only where the actual possessor
has some rights which must be respected
-' Where claim to possession based on claim of ownership
Where the ownership of a property was decided in a judgment# the
deliery of possession should be considered included in the
decision where the defeated partys claim to the possession is
based on his claim of ownership
@' Duty of endor to delier possession of thing sold
)ontract of sale# endor bound not only to transfer ownership# but
also delier
)onsidered deliered only when endee has control and
possession
$ight to use and enjoy or jus utendi
necessarily includes the right to transform and the right to exclude any
person from the enjoyment and disposal thereof
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he may use such force as may be reasonably necessary to repel or
preent an actual or threatened unlawful physical inasion or usurpation
!Art @*K"
he may enclose or fence his property !Art @-;"
limited because he cannot ma9e use of such property in a manner to
injure the rights of a third person
$ight to receie the fruits and accessories or jus %ruendi and accessionis
ownership gies the right by accession to eerything which is produced
thereby !see art @@;"
$ight to consume or jus abutendi
right of the owner to consume a thing by its use 2 the use that
extinguishes
$ight to dispose or alienate or jus disponendi
either totally !sale or donation" or partially !pledge# mortgage# etc"
includes right not to dispose
duty of endor to transfer ownership
o endor must be the owner or authoriGed to sell thing
o sufficient that he be the owner at the time of the deliery of the
thing sold
only the absolute owner can pledge or mortgage ones property
$ight to recoer possession andLor ownership or jus vindicandi
true owner must resort to judicial process for the recoery of the
property
he cannot ta9e the law into his own hands
Actions aailable to recoer possession andLor ownership
&' $ecoery of personal property8 $emedy of $eplein or manual deliery
of personal property
$e%uisites !$ule H;# $ules of )ourt"8
Applicant must show by his own affidait or that of some other person
who personally 9nows the facts8
i' /hat the applicant is the owner of the property
claimed# particularly describing it# ?$ is entitled to the
possession thereof
ii' /hat the property is wrongfully detained by the
aderse party# alleging the cause of detention thereof
according to the best of his 9nowledge# information
and belief
Applicant has burden of proing his ownership or right of
possession oer the property in %uestion
6oth a principal remedy !regain possession" and a proisional
remedy !allow the plaintiff to retain the thing wrongfully
detained by another pendente lite"
*' $ecoery of real property8
Corcible entry and unlawful detainer ! accion interdictal)
Corcible entry
$e%uisites8
i' 4nstituted by person depried of possession
ii' (nlawful depriation of the possession of any land or
building# by force# intimidation# threat# strategy or
stealth
iii' Ciled within & year from date of actual entry !but for
cases of stealth and strategy# from date of 9nowledge
of actual 9nowledge"
i' At the M/) where property is located
(nlawful detainer
$e%uisites8
i' 4nstituted by landlord# endor# endee or other person
against who the possession of any land or building is
unlawfully withheld
ii' (nlawful possession after the expiration or
termination of the right to hold possession !by irtue
of contract# etc"
iii' Ciled within & year from date of last demand to acate
i' at the M/) where property is located
Cor unlawful detainer# it is essential that the plaintiffs supposed acts of
tolerance must hae been present right from the start of the possession
which is later sought to be recoered !FaldeG# jr )A"
?nly issue inoled in both is mere physical or material possession
!possession de %acto"# not juridical or ciil possession !possession de
jure"
3laintiff need only to allege and proe prior possession de facto and
undue depriation thereof
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4ts a %uieting process
+ummary in nature !to sole the problem %uic9ly and to protect the
rights of the possessor"
Difference between the two is the time when possession became
unlawful 2 forcible entry8 time of entry5 unlawful detainer8 possession at
first was legal# then became illegal
4f complaint fails to aer facts constitutie of forcible entry or unlawful
detainer as when it does not state how entry was effected or how and
when the dispossession started# the remedy should either be accion
publiciana or an accion reinvindicatoria !FaldeG# jr )A"
o Must be apparent in the face of the complaint !+armiento
)A"
Aurisdictional facts 2 what does a plaintiff hae to allege?
o Cor unlawful detainer
i' 3laintiffs right oer property !describing the property"
ii' 3rior lawful possession
i' 4f by tolerance# acts of tolerance must hae been
present right from the start of the possession
ii' 4f by lease# contractual agreement must be shown
iii' 6ecame unlawful !by termination of lease contract or non7
payment of rents"
i' .xtrajudicial demand to acate
i' 4f by non7payment# demand letter to 3AM $.=/+ and
FA)A/. premises !bar %uestion"
' Within one year from last demand
)an the M/) rule on the issue of ownership in an ejectment case? Mes>
6ut only proisionally'
/he primal rule is that the principal issue must be that of
possession# and that ownership is merely ancillary# in which case
the issue of ownership may be resoled but only for the purpose of
determining the issue of possession'
4t must sufficiently appear from the allegations in the complaint that
what the plaintiff really and primarily see9s is the restoration of
possession'
4nferior court cannot adjudicate on the nature of ownership where
the relationship of lessor and lessee has been sufficiently
established in the ejectment case# unless it is sufficiently
established that there has been a subse%uent change in or
termination of the relationship between the parties'
/he rule in forcible entry cases# but not in those for unlawful
detainer# is that a party who can proe prior possession can recoer
such possession een against the owner himself' Ee has the
security that entitles him to remain on the property until he is
lawfully ejected by a person haing a better right through an accion
publiciana or accion reinvindicatoria
Where the %uestion of how has prior possession hinges on the
%uestion of who the real owner of the disputed portion is# the
inferior court may resole the issue of ownership and ma9e a
declaration as to the owner' 6ut# it is merely proisional# and does
not bar nor prejudice an action between the same parties inoling
the title to the land' !Asis Asis Fda de Guearra# *;;D"
3lenary action to recoer possession ! accion publiciana)
$e%uisites8
i' Must be within a period of ten years otherwise the real
right of possession is lost
ii' ?ne who claims to hae a better right must proe not only
his right but also the identity of the property claimed
iii' Ciled in the $/) where the property is located
4ssue inoled is possession de jure of realty independently of title !as
compared to interdictal, possession de %acto"
Audgment rendered here is conclusie only on the %uestion of
possession# not that of ownership
Aurisdictional facts?
&' $ight of plaintiff oer property
*' 3eriod to bring interdictal has expired
-' Dont 9now na'
Action to recoer possession based on ownership ! accion reivindicatoria)
$e%uisites8
i' $ight of plaintiff oer property
ii' Ciled at the $/) where the property is located
+ee9s recoery of possession based on ownership# with claim of title
4ssue inoled is ownership which ordinarily includes possession#
although a person may be declared owner but he may not be entitled to
possession because the possessor has some rights which must be
respected
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Action for reconeyance 2 prescribes in &; years from the point of the
registration of the deed or the date of issuance of the certificate of title
!chec9 boo9>"5 @ years in cases of fraud counted therefrom on date of
issuance of the certificate of title oer the property
o Action for reconeyance based on fraud and where plaintiff is
in possession of the property subject of the acts does not
prescribe' !:eyson 6ontuyan"
o =68 +hould not hae passed to a third person'
All three actions are actions in personam'
4njunction as a remedy for recoery of possession
4njunction is a judicial process whereby a person is re%uired to do or
refrain from doing a particular thing'
>eneral r,le8 )ourt should not by means of a preliminary injunction
transfer property in litigation from the possession of one party to
another'
4n order that a preliminary injunction may be granted at any time after
the commencement of the action and before judgment8
$e%uisites8
i' there must exist a clear and positie right oer the
property in %uestion which should be judicially protected
through the writ5 and
ii' the acts against which the injunction is to be directed are
iolatie of such right
What if there is someone actually possessing the property sought to
recoer?
o 3erson not ordinarily allowed to aail of remedy of preliminary
preentie or mandatory injunction but must bring the
necessary action for the recoery of possession'
4njunctie relief will not be granted to ta9e property out of the
possession or control of one party and place it in that of another whose
titleJ
o Eas not been clearly established# or
o Who did not hae such possession or control at the inception
of the case
3roper function is to maintain the status %uo
4njunction cannot be a substitute for other suits for recoery of
possession# hence# its denial will not bar the institution of the more
appropriate remedy
Why? Well# a writ of injunction is an e%uitable relief5 determination of
title is a legal remedy 2 thats why
When can injunction be allowed?
4n actions for forcible entry# the dispossessed plaintiff may file# within ten
days from filing of the complaint# a motion for a writ of preliminary
mandatory injunction to restore him in possession'
o /he court MAM grant 4n order to preent the defendant from
committing further acts of dispossession during the pendency
of the case
o 4ssue of ownership may not be put in issue
.jectment cases where the appeal is ta9en# the lessor is gien the same
remedy granted aboe'
Where the actual possessor of the property who is admittedly the
owner# see9s protection from repeated or further intrusions into his
property'
o .en if it turns out that he isnt the owner# he may still aail of
the e%uitable remedy of injunction to protect his possession'
When there is a clear finding of right of ownership and possession of a
land in faor of the party who claims the subject property in possession
of another is the undisputed owner as where the property is coered by
a /orrens title pointing to the party as the owner' !?f course# chec9 the
issuance of the title if it was in bad faith"
When urgency# expediency and necessity re%uire immediate possession
as where material and irreparable injury will be done which cannot be
compensated by damages'
Writ of possession as a remedy
Writ of possession is an order whereby a sheriff is commanded to place
a person in possession of a real or personal property# such as when a
property is extrajudicially foreclosed'
4mproper to eject another from possession# unless sought in connection
with a8
1& :and registration proceeding
)& Coreclosure of mortgage+ proided# that no third person has
interened !3=6 )A 2 in this case# a third person was
occupying the lot subject to the writ' /he +) held that the an
ex7parte petition for issuance of a possessory writ is not the
judicial process referred to in Art @--"5
.& .xecution sales
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:imitations on the right of ownership
:imited by
./ by the +tates power to tax# police power# and eminent domain
0/ those imposed by law such as legal easement
4/ those imposed by the owner himself# such as oluntary
easement
5/ those imposed by the grantor of the property on the grantee
6/ those arising from conflicts of priate rights which ta9e place in
accession continua
7/ prohibition against the ac%uisition of priate lands by aliens
Art 4)7 The owner or law",l #ossessor o" a thing has the right to
e/cl,$e any #erson "rom the en!oyment an$ $is#osal thereo"& 3or this
#,r#ose+ he may ,se s,ch "orce as ay e reasonaly necessary to
re#el or #re'ent an act,al or threatene$ ,nlaw",l #hysical in'asion or
,s,r#ation o" his #ro#erty&
3rinciple of self7help
$e%uisites8
i' 3erson defending must be the owner or lawful possessor
ii' (se of reasonable force
iii' ?nly be exercised at the time of an actual or threatened
dispossession !no delay"
i' Actual or threatened physical inasion or usurpation which is
unlawful
$ead with Art &K of the )iil )ode'
Art 4.9 E'ery owner may enclose or "ence his lan$ or tenements y
means o" walls+ $itches+ li'e or $ea$ he$ges+ or y any other means
witho,t $etriment to ser'it,$es constit,te$ thereon&
$ight to enclose or fence
:imited by existing seritudes imposed on the land or tenement
Art 4.1 The owner o" a thing cannot ma-e ,se thereo" in s,ch manner
as to in!,re the rights o" a thir$ #erson&
Art 4.) The owner o" a thing has no right to #rohiit the inter"erence o"
another with the same+ i" the inter"erence is necessary to a'ert an
imminent $anger an$ the threatene$ $amage+ com#are$ to the $amage
arising to the owner "rom the "rom the inter"erence+ is m,ch greater&
The owner may $eman$ "rom the #erson ene"ite$ in$emnity "or the
$amage to him&
+tate of necessity
General rule8 a person cannot interfere with the right of ownership of another
.xception8 +tate of necessity# but of course# ciil indemnification can be
as9ed for
$e%uisites8
i' interference is necessary to aert an imminent danger and the
threatened damage to actor or a third person !but the damage
must be proportionate and reasonable"
ii' imminent danger or threatening damage must be much greater
than the damage arising to the owner of the property
Art 4.. Act,al #ossession ,n$er claim o" ownershi# raises a
$is#,tale #res,m#tion o" ownershi#& The tr,e owner m,st resort to
!,$icial #rocess "or the reco'ery o" the #ro#erty&
Applies to both immoable and moable property
$e%uisites to raise the disputable presumption of ownership8
i' Actual !physical or material" possession of the property
ii' 3ossession must be under claim of ownership
Audicial process contemplated
Means ejectment suit or reinidicatory action
+28parte petition for issuance of a possessory writ is not a judicial
process# as it is non7litigious !3=6 )A"
Art 4.4 In an action to reco'er+ the #ro#erty m,st e i$enti"ie$+ an$ the
#lainti"" m,st rely on the strength o" his title an$ not on the wea-ness
o" the $e"en$antBs claim&
$e%uisites8
i' 3erson who claims that he has a better right to the property must
satisfactorily proe both ownership and identity
ii' 6urden of proof lies on the party who substantially asserts the
affirmatie of an issue
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iii' $eliance on strength of eidence and not upon the wea9ness of the
opposing party
3arty who desires to recoer must fix the identity of the land claimed by
describing the location# area and boundaries thereof
o 4f a party fails to identify sufficiently and satisfactorily the land
which he claims as his own# his action must necessarily fail
o While the identity of the property must be established# it is not
necessary for the plaintiff to establish the precise location and
extent of the lands claimed or occupied by the defendant
General rule8 where there is a conflict between the area and boundaries
of a land# the latter preails'
o An area delimited by boundaries properly identifies a parcel of
land
.xception8 where the boundaries relied upon do not identify the
land beyond doubt
o 4n such cases where there appears to be an oerlapping of
boundaries# the actual siGe of the property gains importance'
.%uiponderance of eidence? $ule for defendant'
.idence to proe ownership
&' A /orrens title
*' /itle from the +panish goernment
-' 3atent duly registered in the $egistry of 3roperty
@' Deed of sale
<' ?perating a business for nine years in defendants own name# without
protest of plaintiff
H' ?ccupation of a building for a long time without payment of rent
I' :etter in which defendant recogniGed the ownership of the property by
the plaintiff !estoppel"
D' ?pen# continuous# exclusie# aderse and notorious actual possession
and occupation of parcels of land
4ndicia of claim of ownership
&' /ax declarations and tax receipts 2 only prima facie eidence of
ownership or possession5 but they are good indicia of possession in the
concept of owner
)onclusieness of certificates of title
4ndicates true and legal ownership of a priate land and should be
accorded great weight as against tax declarations
o but is not conclusie if the land had already been preiously
registered
Art 4.* No #erson shall e $e#ri'e$ o" the #ro#erty e/ce#t y
com#etent a,thority an$ "or #,lic ,se an$ always ,#on #ayment o"
!,st com#ensation&
Sho,l$ this re6,irement e not "irst com#lie$ with+ the co,rts shall
#rotect+ an$ in a #ro#er case+ restore the owner in his #ossession&
3ower of eminent domain
$e%uisites8
i' /a9ing must be done by competent authority
ii' Must be for public use
iii' ?wner paid just compensation
i' $e%uirement of due process of law must be obsered
+hould the re%uirements be not first complied with# restore the property to
his possession'
6ut can be lost by estoppel or ac%uiescence
Art 4.0 <hen any #ro#erty is con$emne$ or sei4e$ y com#etent
a,thority in the interest o" health+ sa"ety or sec,rity+ the owner thereo"
shall not e entitle$ to com#ensation+ ,nless he can show that s,ch
con$emnation or sei4,re is ,n!,sti"ie$&
)ondemnation or seiGure of property in exercise of police power
$elates to use and enjoyment not ownership of property
=o ta9ing of property inoled
3ersons affected not entitled to financial compensation
Art 4.2 The owner o" a #arcel o" lan$ is the owner o" its s,r"ace an$ o"
e'erything ,n$er it+ an$ he can constr,ct thereon any wor-s or ma-e
any #lantations an$ e/ca'ations which he may $eem #ro#er+ witho,t
$etriment to ser'it,$es an$ s,!ect to s#ecial laws an$ or$inances& ;e
cannot com#lain o" the reasonale re6,irements o" aerial na'igation&
+urface rights of a landowner
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$ight of the owner of a parcel of land to construct any wor9s or ma9e any
plantations and excaations on his land is subject to8 !+:.$$t"
&' +pecial laws
*' :ocal ordinances
-' .xisting seritudes or easements
@' $easonable re%uirements of aerial naigation
<' $ights of third persons
:imitations imposed by special laws
4ncludes the regalian doctrine
?wnership of said land does not gie him the right to extract or utiliGe
the said minerals without the permission of the +tate to which said
minerals belong
o Cor the loss sustained by such owner# he is entitled to just
compensation under mining laws or expropriation proceedings
Art 4.5 ;i$$en treas,re elongs to the owner o" the lan$+ ,il$ing+ or
other #ro#erty on which it is "o,n$&
Ne'ertheless+ when the $isco'ery is ma$e on the #ro#erty o"
another+ or o" the state or any o" its s,1$i'isions+ an$ y chance+ one1
hal" thereo" shall e allowe$ to the "in$er& I" the "in$er is a tres#asser+
eh shall not e entitle$ to any share o" the treas,re&
I" the things "o,n$ e o" interest to science or the arts+ the
State may ac6,ire them at their !,st #rice+ which shall e $i'i$e$ in
con"ormity with the r,le state$&
Art 4.7 =y treas,re is ,n$erstoo$+ "or legal #,r#oses+ any hi$$en an$
,n-nown $e#osit o" money+ !ewelry+ or other #recio,s o!ects+ the
law",l ownershi# o" which $oes not a##ear&
$e%uisites8
i' Deposit of money# jewelry or other precious objects
ii' Eidden and un9nown
iii' :awful ownership of which does not appear
:;APTER T<O% RI>;T O3 A::ESSION
>ENERAL PROVISIONS
SE:TION I A RI>;T O3 A::ESSION <IT; RESPE:T TO
<;AT IS PRO8C:E8 =Y PROPERTY
Art 449 The ownershi# o" #ro#erty gi'es the right y accession to
e'erything which is #ro$,ce$ therey+ or which is incor#orate$ or
attache$ thereto+ either nat,rally or arti"icially&
Accession defined
Accession is the right of the owner of a thing# real or personal# to become
the owner of eerything which is8
&' produced thereby#
*' incorporated
-' attached thereto#
either naturally or artificially'
Accession Accessory
fruits of# additions to#
improements upon a thing
includes building# planting and
sowing
alluion# aulsion# change of
course of riers# formation of
islands
not necessary to the principal
thing
things joined to# included with
the principal for the latters
embellishment# better use or
completion
necessary to principal thing
example8 9ey of a house# bow of a
iolin
Accession# not a mode of ac%uiring ownership
Merely a conse%uence of ownership
.xercise of the right of ownership
+ince the law itself gies the right# accession may# 4= A +.=+.# be
considered as a mode of ac%uiring property under the law
Ninds of accession
./ $ccession discreta
.xtension of the right of ownership of a person to the products of a
thing which belongs to such a person
4ncludes natural# industrial# and ciil fruits !Art @@&"
0/ $ccession continua
.xtension of the right of ownership to that which is incorporated or
attached to a thing which belongs to such person
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May ta9e place8
With respect to real property
Accession industrial !building# planting# sowing"5 or
Accession natural !alluion# aulsion# change of rier
course# and formation of islands"
With respect to personal property
)onjunction !attachment# engraftment"
)ommixtion or confusion
+pecification
Art 441 To the owner elongs%
o The nat,ral "r,its(
o The in$,strial "r,its(
o The ci'il "r,its&
Art @@& refers to accession discreta
$ight of owner to the fruits
General rule8 All fruits belong to the owner of a thing'
.xception8 A person# other than the owner of a property# owns the fruits
thereof8
&' possession in good faith by another !possessor entitled to the fruits
receied before possession is legally interrupted"
*' usufruct !usufructuary entitled to all the fruits of the property on usufruct"
-' lease of rural lands !lessee gets fruits# lessor gets rents"
@' pledge !pledgee gets fruits# etc but with the obligation to compensate
what he receies with those which are owing him"
<' antichresis !creditor ac%uires the fruits of his debtors immoable# but
with the obligation to apply them first to the interest and then to the
principal amount of the credit"
Art 44) Nat,ral "r,its are the s#ontaneo,s #ro$,cts o" the soil+ an$ the
yo,ng an$ other #ro$,cts o" animals&
In$,strial "r,its are those #ro$,ce$ y lan$s o" any -in$
thro,gh c,lti'ation or laor&
:i'il "r,its are the rents o" ,il$ings+ the #rice o" leases o"
lan$s an$ other #ro#erty an$ the amo,nt o" #er#et,al or li"e ann,ities
or other similar income&
=atural fruits
/wo 9inds8
&' +pontaneous products of the soil !not through human cultiation or
labor"# and
*' Moung and other products of animals !chic9s# eggs# wool# mil9"
/he second 9ind is considered as natural fruits whateer care or
management# scientific or otherwise# may hae been gien by man
since the law ma9es no distinction'
3uppies# while cute# bred by a professional breeder are still
natural fruits
4ndustrial fruits
/hose products which are borne through the cultiation or labor of
humans
(sually cultiated for a purpose
)iil fruits
&' $ents of buildings
*' 3rices of leases !rents" of lands and other property !including moables"
-' Amount of perpetual or life annuities or other similar income
Art 44. ;e who recei'es the "r,its has the oligation to #ay the
e/#enses ma$e y a thir$ #erson in their #ro$,ction+ gathering+ an$
#reser'ation&
Art @@- applies when8
&' ?wner of property recoers the property from a possessor and the
possessor has not yet receied the fruits although they may hae
already been gathered or harested5 or
*' /he possessor has already receied the fruits but is ordered to
return the same to the owner
4n both cases# the owner is obliged to reimburse the preious possessor for
the expenses incurred by the latter'
What if the possessor is in bad faith?
/he owner cannot excuse himself from his obligation by alleging bad
faith on the part of the possessor because the law ma9es no distinction
When does good faithLbad faith come into play?
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When the goods hae yet to be gathered'
(nder @@K# a 63+ in bad faith has no right of reimbursement for
expenses# nor to the fruits' ?nly for the necessary expenses of
preseration of land'
What if the expenses exceed the fruits?
/he owner must pay the expenses just the same because the law
ma9es no distinction
6ut 9eep in mind that the owner only pays for the expenses for
production# gathering and preseration 2 not improement'
Art 444 Only s,ch as are mani"est or orn are consi$ere$ as nat,ral or
in$,strial "r,its&
<ith res#ect to animals+ it is s,""icient that they are in the
wom o" the mother+ altho,gh ,norn&
When natural fruits and industrial fruits deemed to exist
&' 3lants which produce only one crop and then perish !rice# corn# sugar"8
from the time the seedlings appear from the ground
*' 3lants and trees which lie for years and gie periodic fruits !mangoes#
oranges# epols"8 deemed existing until they actually appear on the
plants or trees
-' Animals8 beginning of the maximum ordinary period of gestation !when
there can be no doubt that they are already in the womb of the mum"
@' Cowls8 the fact of appearance of chic9s should retroact to the beginning
of incubation
SE:TION II A RI>;T O3 A::ESSION <IT; RESPE:T TO
IMMOVA=LE PROPERTY
+ection * deals with one 9ind of accession continua# that of immoables' 4t
comprehends accession industrial !@@<7@<H" and accession natural !@<I7
@H<"'
)ertain basic principles must be 9ept in mind8
&' Accession follows the principal
?wner of the principal ac%uires the ownership of the accession
*' 4ncorporation or union must be intimate
$emoal or separation cannot be effected without substantial injury
to either or both
-' .ffect of good faith and bad faith
Good faith exonerates a person from punitie liability but bad faith
may gie rise to dire conse%uences
General rule8 person who acts in bad faith has no rights
.xception8 person who is in good faith or bad faith is entitled to
reimbursement for necessary expenses or preseration !@<*" as
well as expenses for cultiation# gathering and preseration !@@-"
@' .ffect of both parties in bad faith
6ad faith of one neutraliGes bad faith of the other
=either party may demand as a matter of right the remoal of the
improements against the will of the other for such right is aailable
only to a party in good faith where the other is in bad faith
<' (njust enrichment
General rule on accession industrial
Art @@< and @@H gie the general rule that the accessory follows the
principal'
.xception8 Art &*; of the Camily )ode
Definitions8
&' 6uilding 2 generic term for all architectural wor9 with roof built for the
purpose of being used as mans dwelling# or for offices# clubs# theaters#
etc'
*' $epairs 2 putting of something bac9 into the condition in which it was
originally in !not an improement"
Art 44* <hate'er is ,ilt+ #lante$ or sown on the lan$ o" another an$
the im#ro'ements or re#airs ma$e thereon+ elong to the owner o" the
lan$+ s,!ect to the #ro'isions o" the "ollowing articles&
?wner of land must be 9nown for this article to apply
Art 440 All wor-s+ sowing+ an$ #lanting are #res,me$ ma$e y the
owner an$ at his e/#ense+ ,nless the contrary is #ro'e$&
Disputable presumptions as to improements8
&' /he wor9s# sowing# and planting were made by the owner' and
*' /hey were made at the owners expense'
Ee who alleges the contrary of these presumptions has the burden of proof'
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Art 442 The owner o" the lan$ who ma-es thereon+ #ersonally or
thro,gh another+ #aintings+ constr,ctions or wor-s with the materials
o" another+ shall #ay their 'al,e( an$ i" he acte$ in a$ "aith+ he shall
also e olige$ to the re#aration o" $amages& The owner o" the
materials shall ha'e the right to remo'e them only incase he can $o so
witho,t in!,ry to the wor- constr,cte$+ or witho,t the #lantings+
constr,ctions or wor-s eing $estroye$& ;owe'er+ i" the lan$owner
acte$ in a$ "aith+ the owner o" the materials may remo'e them in any
e'ent+ with a right to e in$emni"ie$ "or $amages&
Applies when the owner of the property uses the materials of another'
:andowner76uilderL3lanterL+ower ?wner of Materials
Good faith Good faith
:?763+ can ac%uire the materials
proided there is full payment
.ntitled to full payment for alue of
materials# or
May remoe materials proided
there is no substantial injury to wor9
done
6ad faith Good faith
Ac%uire the materials proided he
pays full payment plus damages
.ntitled to full payment for alue of
materials plus damages# or
$emoe materials een if there will
be substantial injury to wor9 done
plus damages
Good faith 6ad faith
Ac%uire materials without paying for
the alue thereof and entitled to
damages due to defects or inferior
%uality of materials
:oses materials without indemnity
and will be liable for damages due to
defects or inferior %uality of materials
6ad faith 6ad faith
+ame as when both are in good
faith'
Art 445 The owner o" the lan$ on which anything has een ,ilt+ sown
or #lante$ in goo$ "aith+ shall ha'e the right to a##ro#riate as his own
the wor-s+ sowing or #lanting+ a"ter #ayment o" the in$emnity #ro'i$e$
"or in articles *40 an$ *45+ or to olige the one who ,ilt or #lante$ to
#ay the #rice o" the lan$+ an$ the one who sowe$+ the #ro#er rent&
;owe'er+ the ,il$er or #lanter cannot e olige$ to ,y the lan$ i" its
'al,e is consi$eraly more than that that o" the ,il$ing or trees& In
s,ch case+ he shall #ay reasonale rent+ i" the owner o" the lan$ $oes
not choose to a##ro#riate the ,il$ing or trees a"ter #ro#er in$emnity&
The #arties shall agree ,#on the terms o" the lease an$ in case o"
$isagreement+ the co,rt shall "i/ the terms thereo"&
Art 447 ;e who ,il$s+ #lants or sows in a$ "aith on the lan$ o"
another+ loses what is ,ilt+ #lante$ or sown witho,t right to in$emnity&
Art 4*9 The owner o" the lan$ on which anything has een ,ilt+
#lante$ or sown in a$ "aith may $eman$ the $emolition o" the wor-+ or
that the #lanting or sowing e remo'e$+ in or$er to re#lace things in
their "ormer con$ition at the e/#ense o" the #erson who ,ilt+ #lante$
or sowe$( or he may com#el the ,il$er or #lanter to #ay the #rice o"
the lan$+ an$ the sower the #ro#er rent&
Art 4*1 In case o" the two #rece$ing articles+ the lan$owner is entitle$
to $amages "rom the ,il$er+ #lanter or sower&
Art 4*) The ,il$er+ #lanter or sower in a$ "aith is entitle$ to
reim,rsement "or the necessary e/#enses o" #reser'ation o" the lan$&
Art 4*. I" there was a$ "aith+ not only on the #art o" the #erson who
,ilt+ #lante$ or sowe$ on the lan$ o" another+ ,t also on the #art o"
the owner o" s,ch lan$+ the rights o" one an$ the other shall e the
same as tho,gh oth ha$ acte$ in a$ "aith&
It is ,n$erstoo$ that there is a$ "aith on the #art o" the
lan$owner whene'er the act was $one with his -nowle$ge an$ witho,t
o##osition on his #art&
Art 4*4 <hen the lan$owner acte$ in a$ "aith an$ the ,il$er+ #lanter
or sower #rocee$e$ in goo$ "aith+ the #ro'isions o" article 442 shall
a##ly&
Whats good faith?
)onsists in the8
&' Eonest belief that the land he is building# planting# sowing on is his or
that by some title# he has a right to build# plant# sow on it5 and
*' 4gnorance of any defect or flaw in his title
Mic9ey 4ngles
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PROPERTY NOTES
Abrenica definition8 +tate of mind at the time he built the improements
!3leasantille case"
(sually# it applies to building# planting# sowing in the concept of ownership'
6ut the +upreme )ourt has expanded its coerage to
&' )ases wherein a builder had constructed improements with the
consent of the owner
*' 6uilders in good faith who relied on the consent of another whom they
hae mista9enly belieed to be the owner of the land
-' /o children who built improement on a land belonging to their parents
with their parents consent !Macasaet case"
:andowner 6uilderLplanterLsower
Good faith Good faith
?ption &8 3urchase whateer has
been built# planted# or sown after
paying indemnity which includes
necessary# useful and luxurious
expenses !if he wishes to
appropriate the luxurious expenses"
3rohibited from offsetting or
compensating the necessary and
useful expense with the fruits
receied by the 63 in good faith
!=uguid case"
$eceie indemnity for necessary#
useful and luxurious expenses
!depends on landowner" with right of
retention oer the land without
obligation to pay rent until full
payment of indemnity
$emoe useful improement
proided it does not cause any injury
!part of right of retention"
4f :? does not appropriate luxurious
improements# 63+ can remoe the
same proided there is no injury to
the principal thing !land or building"
$ight of retention only applies when
:? chooses to appropriate !but does
not apply if property of public
dominion"
?ption *8 /o oblige the 63 to buy the
land or the + to pay the proper rent
unless the alue of the land is
considerably more than that of the
building or trees
/o purchase land at fair mar9et alue
at time of payment when alue is not
considerably more than that of the
building or trees
/o pay rent until the purchase has
:egal implication of planter sower8
?wner cant compel sower to buy#
only rent'
been made !/echnogas case"
4f 63 cannot pay purchase price of
the land# :? can re%uire 63 to
remoe whateer has been built#
planted# or sown'
4f the alue of the land is
considerably more than that of the
building or trees# 63 cannot be
compelled to buy the land' 4n such
case# 63 will pay reasonable rent if
:? does not choose option &'
4f 63+ cannot pay the rent# :? can
eject 63+ from the land'
=ote8 $ental period of sower is only
until he gathers what he sowed' Ee
doesnt hae the remedy of remoal'
!+armiento"
Good faith 6ad Caith
?ption &8 /o ac%uire whateer has
been built# planted or sown without
paying indemnity except necessary
expenses for preseration of land
and luxurious expenses !should :?
want to ac%uire luxurious
improement" plus damages
:oses whateer has been built#
planted or sown without indemnity
and liable to pay damages
.ntitled to reimbursement for
necessary expenses for preseration
of land but no right to retention !and
also @@-"
=?/ .ntitled to reimbursement for
useful expenses and cannot remoe
useful improements een if remoal
will not cause injury !MW++ case"
=ot entitled to luxurious expenses
except when :? wants to ac%uire
!alue of which will be the one at the
time :? enters into possession"
Mic9ey 4ngles
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PROPERTY NOTES
.ntitled to remoe luxurious
improements if it will not cause
injury and :? does not want to
ac%uire them' 4f it will cause injury
and :? doesnt want to ac%uire# he
gets it for free !Dean Del"
?ption *8 /o oblige 63 to buy land or
+ to pay proper rent plus damages#
regardless of aluation
?bliged to pay for land or proper rent
and pay damages
?ption -8 /o compel 63+ to remoe
or demolish wor9 done plus
damages
?bliged to remoe or demolish wor9
done at his expense and pay
damages
6ad Caith Good Caith
Ac%uire whateer has been built#
planted or sown by paying indemnity
plus damages
6all is in the court of the 63+'
63+ can remoe whateer has been
built# planted or sown regardless of
whether or not it will cause injury and
will be entitled to damages
4f :? ac%uires whateer has been
built# planted or sown# 63+ must be
indemnified the alue thereof plus
damages
4f :? does not ac%uire# 63+ cannot
insist on purchasing land
6ad Caith 6ad Caith
6oth in good faith
=ecessary expenses
Made for the preseration of the thing# or
/hose which see9 to preent the waste# deterioration# or loss of the
thing
(seful expenses
.xpenses which add alue to a thing or
Augment is income
When does good faith cease?
Crom the moment defects in the title are made 9nown to the possessor
by extraneous eidence or by suit for recoery of the property by the
true owner
What happens if good faith ceases? !$osales case"
:? can ac%uire improements built 3$4?$ to the notice to 63+ !when
good faith ceased"# and indemnify 63+ of current mar9et alue at time
of payment
:? entitled to rent from the time 63+ good faith ceased
When will these rules not apply?
&' When other proisions of law goern !agency# co7ownership# lease#
usufruct"
*' 4mproement constructed on ones own land subse%uently sold !person
constructs a house on his own land and later sold land to another"
6ut# the proision on indemnity in @@D may be applied by analogy
where the owner7builder later lost ownership of the land by irtue of
a court judgment# considering that the primary intent of @@D is to
aoid a state of forced co7ownership especially where the parties in
the main agree that @@D and <@H are applicable and indemnity for
the improements may be paid although they differ as to basis of
the indemnity 7 whut?> !3ecson )A"
-' 6uilder is a belligerent occupant
@' )onstructions not in the nature of buildings
<' 3roperty of public domain
Art 4** I" the materials+ #lants or see$s elong to a thir$ #erson who
has not acte$ in a$ "aith+ the owner o" the lan$ shall answer
s,si$iarily "or their 'al,e an$ only in the e'ent that the one who ma$e
,se o" them has no #ro#erty with which to #ay&
This #ro'ision shall not a##ly i" the owner ma-es ,se o" the
right grante$ y Article 4*9& I" the owner o" the materials+ #lants or
see$s has een #ai$ y the ,il$er+ #lanter or sower+ the latter may
$eman$ "rom the lan$1owner the 'al,e o" the materials an$ laor&
Mic9ey 4ngles
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Ad Majorem Dei Gloriam
PROPERTY NOTES
:andowner 6uilderL3lanterL+ower ?wner of the Materials
Good Caith Good Caith Good Caith
?ption &8 /o ac%uire
whateer has been
built# planted or sown
proided there is
payment of indemnity
!which includes alue
of what has been built#
planter or sown plus
alue of materials
used"
/o receie indemnity
from :? with right of
retention oer land until
full payment
/o receie indemnity
from 63+ who is
primarily liable for
materials5 if 63+ is
insolent# to proceed
against :? who is
subsidiarily liable with
no right of retention
?ption *8 /o oblige 63
to buy land or + to pay
rent unless alue of
land is considerably
more than that of
building or trees
/o buy land or to pay
proper rent
/o receie indemnity
from 63+ only !:? is
not subsidiarily liable"
with right of retention
until full payment5 or
/o remoe materials if
there will be no injury
on building or trees and
will hae material lien
against 63+ for
payment of materials
Good Caith Good Caith 6ad Caith
+ame Whateer is the choice
of :?# the ?M8
&' loses the materials in
faor of the 63+ and
*' will hae no right to
receie indemnity from
63+ nor :?
Good Caith 6ad Caith 6ad Caith
?ption &8 /o ac%uire
whateer has been
built# planted or sown
without paying
indemnity except for
necessary expenses
for preseration of land
and luxurious expenses
63+ loses what has
been built# planted or
sown plus liable for
damages but is entitled
to be indemnified for
necessary expenses
and luxurious expenses
!should :? want to
!+ince both 63+ and
?M are in bad faith#
treat them both as if
they are in good faith'"
Whateer is the choice
of the :?# ?M has right
to receie indemnity for
!should :? want to
ac%uire luxurious
improements" plus
damages
ac%uire luxurious
improements" and has
no right of remoal
een if remoal will not
cause damage
alue of materials from
63+ only !:? has no
subsidiary liability for
alue of materials
because ?M is
considered in good
faith only insofar as
63+ is concerned"
?M has no right to
remoe materials een
if there will be no injury
or damage
?ption *8 /o oblige 63
to buy the land or + to
pay proper rent plus
damages
/o buy the land or pay
proper rent and liable
to pay damages to :?
Get indemnification
from the 63+
?ption -8 /o oblige 63
to demolish or remoe
what has been built#
planted or sown plus
damages
/o demolish or remoe
what has been built#
planted or sown and
liable for damages
:iable to pay damages
due to defects or
inferior %uality of
materials
6ad Caith Good Caith Good Caith
/o ac%uire what has
been built# planted or
sown by paying
indemnity plus liable to
pay damages
/o receie indemnity
from :? plus damages
/? receie indemnity of
materials principally
from 63+ and in case
63+ is insolent#
subsidiarily from :?
6ad Caith Good Caith 6ad Caith
+ame +ame =o right to receie
indemnity for alue of
materials from 63+ nor
:? !who ends up
owning buildings or
trees"
4f ?M in bad faith# he doesnt get anything !unless 63+ in bad faith as
well"
Art 4*0 In the cases reg,late$ in the #rece$ing articles+ goo$ "aith $oes
not necessarily e/cl,$e negligence+ which gi'es right to $amages
,n$er article )120&
Mic9ey 4ngles
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Art 4*2 To the owners o" the lan$s a$!oining the an-s o" ri'ers elong
the accretion which they gra$,ally recei'e "rom the e""ects o" the
c,rrent o" the waters&
Article treats of alluion# a form of accession natural'
Alluion isJ
Accretion which the ban9s of riers gradually receie from the effects of
the current of the waters and
Which belong to the owners of lands adjoining the said ban9s
$iparian owners are owners of lands adjoining the ban9s of riers'
:ittoral owners are the owners of lands bordering the shore of the sea or
la9e or other tidal waters
Distinguished from accretion
Alluion is applied to the deposit of soil or to the soil itself
Accretion is the act or process by which a riparian land gradually and
imperceptiely receies addition made by the water to which the land is
contiguous
$e%uisites
i' Deposit or accumulation of soil or sediment must be gradual and
imperceptie
ii' Accretion results from the effects or action of the current of waters of
the rier !exclusie wor9 of nature"
iii' :and where accretion ta9es place must be adjacent to the ban9 of a
rier
4nstances when alluion D?.+ =?/ ta9e place
1. Accretion because of sudden and forceful action li9e that of flooding
2. Accretion caused by human interention !would still be part of public
domain 2 Fda de =aGerno )A"
3. Accretion caused by action of Manila 6ay !since Manila 6ay is not a
rier# its part of the sea"
4. Accretion on the ban9 of a la9e !li9e :aguna de 6ay" hae been held to
belong to the owners of the lands to which they are added
.lements of rier and their ownership
A rier is a compound concept consisting of three elements8
&' $unning waters
*' /he bed
-' /he ban9s
+ince a rier is a compound concept# it should hae only one nature 2 it
should either be totally public or completely priate' And since riers#
whether naigable or not# are of public dominion !Art @*;"# it is implicit
that all the three component elements be the same nature also'
$easons for alluion
&' )ompensate the riparian owner for the danger of loss that he
suffers because of the location of his land
*' )ompensate him for the encumbrances and arious 9inds of
easements to which his property is subject
-' 3romote the interests of agriculture for the riparian owner it in the
best position to utiliGe the accretion
Accretions affecting lands registered under the /orrens system
)n case o% diminution o% area
$egistration does not protect the riparian owner against diminution of
the area of his land through gradual changes in the course of the
adjoining stream
Accretions which the ban9s of riers may gradually receie from the
effect of the current become the property of the owners of the ban9s
)n case o% increase o% area
Although alluion is automatically owned by the riparian owner# it does
not automatically become registered land# just because the lot which
receies such accretion is coered by a /orrens title
+o# alluial deposit ac%uired by a riparian owner of registered land by
accretion may be subjected to ac%uisition through prescription by a third
person# by failure of such owner to register such accretion within the
prescribed period
Art 4*5 The owners o" estates a$!oining #on$s or lagoons $o not
ac6,ire the lan$ le"t $ry y the nat,ral $ecrease o" the waters+ or lost
that in,n$ate$ y them in e/traor$inary "loo$s&
$efers only to ponds and lagoons
o =o application when the estate adjoins a cree9# stream# rier or
la9e
Mic9ey 4ngles
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PROPERTY NOTES
o Cor purposes of alluion# la9es are of the same category of
cree9s# streams and riers
3ond
o a body of stagnant water without an outlet
o larger than a puddle and smaller than a la9e
:agoon
o small la9e# ordinarily of fresh water#
o and not ery deep# fed by floods
o the hollow bed of which is bounded by eleations of land
:a9e
o 6ody of water formed in depressions of the earth
o ?rdinarily fresh water
o )oming from riers# broo9s or springs
o )onnected with the sea by them
o Eence# :aguna de 6ay is a la9e
Art 4*7 <hene'er the c,rrent o" a ri'er+ cree- or torrent segregates
"rom an estate on its an- a -nown #ortion o" lan$ an$ trans"ers it to
another estate+ the owner o" the lan$ to which the segregate$ #ortion
elonge$ retains the ownershi# o" it+ #ro'i$e$ that he remo'es the
same within two years&
Aulsion isJ
Also 9nown as %orce o% river
Defined as the accretion which ta9es place when the current of a rier#
cree9 or torrent segregates from an estate on its ban9 a 9nown portion
and transfers it to another estate
4n which case# the owner of the estate to which the segregated portion
belonged# retains the ownership thereof
Also refers to the segregation or transfer itself of a 9nown portion of land
to another by the force of the current
Alluion Aulsion
Deposit of soil is gradual
Deposit of soil belongs to the
owner of the property where the
same was deposited
/he soil cannot be identified
Deposit is sudden or abrupt
/he owner of the property from
which a part was detached
retains the ownership thereof
Detached portion can be
identified
Where there had been accretions to the land adjacent to the ban9 of a
rier# the riparian owner does not lose the ownership of such accretions
een if they are separated by aulsion from the land by the sudden
change of the course of the rier
$e%uisites
i' +egregation and transfer must be caused by the current of a rier#
cree9 or torrent
ii' +egregation and transfer must be sudden or abrupt
iii' 3ortion of land transported must be 9nown or identifiable
.en if the detached portion be placed on top of another land instead of
being adjoined to it# Art @<K still applies as long as it can be identified as
coming form the estate from which it was detached
4f only soil is remoed by water and spread oer anothers land such
that no 9nown portion can be said to exist which can be remoed# there
is no aulsion
)urrent
o )ontinuous moement of a body of water# often horiGontal# in a
certain direction
$ier
o =atural surface stream of water of considerable olume
o 3ermanent or seasonal flow
o .mptying into an ocean# la9e or other body of water
)ree9
o +mall islet extending further into land
o =atural stream of water normally smaller than and ofter
tributary to a rier
/orrent
o Fiolent stream of water
o A flooded rier or one suddenly raised by a heay rain and
descending a steep incline
o $aging flood or rushing stream of water
What if a portion of land is transferred# but not by a current of water# but by a
landslide?
Mou can apply Art @<K# by analogy'
Mic9ey 4ngles
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PROPERTY NOTES
$emoe it within two years
/he former owner preserers his ownership of the segregated portion
proided he remoes !not merely claims" the same within the period of *
years
4t would seem that his failure to do so would hae the effect of
automatically transferring ownership oer it to the owner of the other
estate
:aw doesnt ma9e a distinction between priate land and land of the
public domain
Why two years?
o +egregated portion is usually ery small and it is thus useless
to the original owner
o +imilar to uprooted trees !but there# H months"
o 4f the owner of the separated portion retains his ownership
without any %ualification# he would hae a right to enter the
other estate at any time# which wouldnt be conenient to the
other estate
o After a long period# the detached potion may become
permanently attached to the new land so itll be hard to remoe
Art 409 Trees ,#roote$ an$ carrie$ away y the c,rrent o" the waters
elong to the owner o" the lan$ ,#on which they may e cast+ i" the
owners $o not claim them within 0 months& I" s,ch owners claim them+
they shall #ay the e/#enses inc,rre$ in gathering them or #,tting them
in a sa"e #lace&
Applies only to uprooted trees
4f a 9nown portion of land with trees standing thereon is carried away by
the current to another land# Art @<K goerns
/he original owner claiming the trees is liable to pay the expenses
incurred by the owner of the land upon which they hae been cast in
gathering them or putting them in a safe place
)laim must be done in H months
o 4f not# the trees will belong to the owner of the land where the
trees hae been cast to
o +ix months is a condition precedent and not a prescription
period
o After a claim is made within H months an action may be
brought within the period proided by law for prescription of
moables
=68 Cor trees# you need only ):A4M within the period' Cor land !Art @<K"#
you hae to $.M?F. them within * years
Art 401 Ri'er e$s which are aan$one$ thro,gh the nat,ral change in
the co,rse o" the waters i#so "acto elong to the owners whose lan$s
are occ,#ie$ y the new co,rse in #ro#ortion to the area lost&
;owe'er+ the owners o" the lan$s a$!oining the ol$ e$ shall ha'e the
right to ac6,ire the same y #aying the 'al,e thereo"+ which 'al,e shall
not e/cee$ the 'al,e o" the area occ,#ie$ y the new e$&
$ier beds abandoned through natural change in the course of waters
/hey belong to owners occupied by the new course of the rier
o 4n proportion to the area lost !if only one owner lost a portion of
his land# the entire old bed should belong to him' 4f more than
two# then in proportion to the area lost"
$bandoned9 /he words may be construed to mean that where there is
abandonment by the goernment oer the old bed# the owner of the
inaded land automatically ac%uires ownership of the same without any
formal act on his part' !$emember that riers are property of public
dominion"
o /he change in the course of the rier does not ipso %acto result
in the abandonment of the rier but must be the reason for its
abandonment# in other words# the rier is abandoned because
of or through the natural change of the water
/he owners of land adjoining the old bed are gien the preferential right
to ac%uire the old bed by paying the alue thereof
o /he indemnification shall not exceed the alue of the area
occupied by the new bed !in case of disagreement# bring the
case to court'"
$e%uisites
i' /here must be a natural change in the course of the waters of the
rier
ii' )hange must be abrupt or sudden
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=68 :aw spea9s of change of rier course' 4f a rier simply dries up or
disappears# the bed left dry will belong to public dominion !Art <;*"
Art 40) <hene'er a ri'er+ changing its co,rse y nat,ral ca,ses+ o#ens
a new e$ thro,gh a #ri'ate estate+ this e$ shall ecome o" #,lic
$ominion&
=68 /his article tal9s of the new rierbed' Art @H& tal9ed about the old
rierbed'
/he bed of a public rier or stream is of public ownership !Art <;*"
4f the rier changes its course and opens a new bed# this bed becomes
of public dominion een if its on priate property
Aust as the old had bed had been of public dominion before the
abandonment# the new rierbed shall li9ewise be of public dominion
=o distinction whether a rier is naigable or floatable or not
Art 40. <hene'er a c,rrent o" a ri'er $i'i$es itsel" into ranches+
lea'ing a #iece o" lan$ or #art thereo" isolate$+ the owner o" the lan$
retains his ownershi#& ;e also retains it i" a #ortion o" lan$ is se#arate$
"rom the estate y the c,rrent&
=68 /his article does not refer to the formation of islands through accretion
!thats in Art @H@ and @H<"'
/his article refers to the formation of an island caused by a rier diiding
itself into branches resulting in8
&' /he isolation of a piece of land or part thereof# or
*' /he separation of a portion of land from an estate by the current !see
Art @<K"
/he owner preseres his ownership of the isolated or separated
property
Art 404 Islan$s which may e "orme$ on the seas within the
!,ris$iction o" the Phili##ines+ on la-es+ an$ on na'igale or "loatale
ri'ers elong to the State&
Art 40* Islan$s which thro,gh s,ccessi'e acc,m,lation o" all,'ial
$e#osits are "orme$ in non1na'igale an$ non1"loatale ri'ers+ elong
to the owners o" the margins or an-s nearest to each o" them+ or to
the owners o" oth margins i" the islan$ is in the mi$$le o" the ri'er+ in
which case it shall e $i'i$e$ longit,$inally in hal'es& I" a single islan$
th,s "orme$ e more $istant "rom one margin than "rom the other+ the
owner o" the nearer margin shall e the sole owner thereo"&
$ules of ownership of islands form through alluion
&' An island belongs to the +tate as part of its patrimonial property if it is
formed8
a/ ?n the seas within the jurisdiction of the 3hilippines
b/ ?n la9es
c/ ?n naigable or floatable riers
*' 4f it is formed in non7naigable and non7floatable riers8
a/ 4t belongs to the nearest riparian owner or owner of the margin
or ban9 nearest to it as he is considered in the best position to
cultiate and deelop the island !in other words, sa
pina'amalapit na may ari ng lupa)
b/ 4f it is in the middle of the rier# the island is diided
longtitudinally in hales
c/ 4f the island formed is longer than the property of the riparian
owner# the latter is deemed ipso jure to be the owner of that
portion which corresponds to the length of that portion of his
property along the margin of the rier
d/ 4f a new island is formed between an existing island and an
opposite ban9# the owner of the older island is considered a
riparian owner together with the owner of the land adjoining the
ban9 for the purpose of determining ownership of the island
o Ee must of course register the land# else it be subject to
aderse possession of another
=aigable rier
o ?ne which forms in its ordinary condition by itself or by uniting
with other waters a continuous highway oer which commerce
is or may be carried on
o /est8 whether it is naigable in fact# if it is used or susceptible
of being used as a highway of commerce# for trade and trael
in the usual and ordinary modes
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o A naigable rier is one that is 0floatable1# that is# a rier
admitting floats
i' Eence# a floatable stream is a naigable stream
!Macatangay +ecretary of 3ublic Wor9s 2 in this
case# natangay si Macatangay/ :ehehe;"
SE:TION T;REE A RI>;T O3 A::ESSION <IT;
RESPE:T TO MOVA=LE PROPERTY
Art 400 <hene'er two mo'ale things elonging to $i""erent owners
are+ witho,t a$ "aith+ ,nite$ in s,ch a way that they "orm a single
o!ect+ the owner o" the #rinci#al thing ac6,ires the accessory+
in$emni"ying the "ormer owner thereo" "or its 'al,e&
Adjunction isJ
/he union of two moable things belonging to different owners
4n such a way that they form a single object
6ut one of the component things preseres its alue
)haracteristics of adjunction
4n order that adjunction may ta9e place# it is necessary that8
&' /here are two moables belonging to different owners
*' /hey are united in such a way that they form a single object5 and
-' /hey are so inseparable that their separation would impair their nature
or result in substantial injury to either
4n determining the right of the parties in adjunction# regard is had only to
the things joined and not to the persons'
6ut where there is a mere change of form or alue which does not
destroy the identity of the component parts# the original owners may
demand their separation !Art @HK"
Ninds of adjunction
&' inclusion or engraftment !such as when a diamond is set on a gold ring"
*' soldering or soldadura !when led is united or fused to an object made of
lead"
a' ferrumincaion !if both the accessory and principal are of the
same metal"
b' plumbatura !if they are of different metals"
-' writing or escritua !when a person writes on paper belonging to another"
@' painting or pintura !when a person pains on canas of another"
<' weaing or tejido !when threads belonging to different owners are used
in ma9ing textile"
Art 402 The #rinci#al thing+ as etween two things incor#orate$+ is
$eeme$ to e that to which the other has een ,nite$ as an ornament+
or "or its ,se or #er"ection&
Art 405 I" it cannot e $etermine$ y the r,le gi'en in the #rece$ing
article which o" the two things incor#orate$ is the #rinci#al one+ the
thing o" the greater 'al,e shall e so consi$ere$+ an$ as etween two
things o" e6,al 'al,e+ that o" greater 'ol,me&
In #ainting an$ sc,l#t,re+ writings+ #rinte$ matter+ engra'ing
an$ lithogra#hs+ the oar$+ metal+ stone+ can'as+ #a#er or #archment
shall e $eeme$ the accessory thing&
/ests to determine the principal in adjunction
4n the order of application# the principal is that8
&' /o which the other !accessory" has been united as an ornament or
for its use or perfection' !rule of importance and purpose"
*' ?f greater alue# if they are of une%ual alues5
-' ?f greater olume# if they are of an e%ual alue5
@' /hat of greater merits ta9ing into consideration all the pertinent
legal proisions !see Art @I<" applicable as well as the comparatie
merits# utility and olume of their respectie things
/he special rule regarding paintings# etc is based on the
consideration that what is painted is of greater alue that the board
or canas inasmuch as the exceptions mentioned are specified# its
proision can not be applied by analogy to cases of adjunction of
similar nature which are deemed excluded' !+ee Art @HI and @HD"
Art 407 <hene'er the things ,nite$ can e se#arate$ witho,t in!,ry+
their res#ecti'e owners may $eman$ their se#aration&
Ne'ertheless+ in case the thing ,nite$ "or the ,se+
emellishment or #er"ect o" the other+ is m,ch more #recio,s than the
#rinci#al thing+ the owner o" the "ormer may $eman$ its se#aration+
e'en tho,gh the thing to which is has een incor#orate$ may s,""er
some in!,ry&
When separation of things united are allowed
&' Wheneer the separation can be done without injury
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*' When the accessory much more precious# the owner of the accessory
may demand its separation een though the principal thing may suffer
some injury
?wner who made or caused the union or incorporation shall bear
the expenses for separation
-' When principal acted in bad faith# owner of accessory may separate
een if the principal thing be destroyed
Art 429 <hene'er the owner o" the accessory thing has ma$e the
incor#oration in a$ "aith+ he shall lose the thing incor#orate$ an$
shall ha'e the oligation to in$emni"y the owner o" the #rinci#al thing
"or the $amages he may ha'e s,""ere$&
I" the one who has acte$ in a$ "aith is the owner o" the
#rinci#al thing+ the owner o" the accessory thing shall ha'e a right to
choose etween the "ormer #aying him its 'al,e or that the thing
elonging to him e se#arate$+ e'en tho,gh "or this #,r#ose it e
necessary to $estroy the #rinci#al thing( an$ in oth cases+
",rthermore+ there shall e in$emnity "or $amages&
I" either one o" the owners has ma$e the incor#oration with the
-nowle$ge an$ witho,t the o!ection o" the other+ their res#ecti'e
rights shall e $etermine$ as tho,gh oth acte$ in goo$ "aith&
A8DCN:TION !accessory follows principal"
$ights of ?wner of 3rincipal $ights of ?wner of Accessory
Good Caith Good Caith
Ac%uires the accessory#
indemnifying the owner of the alue
thereof
.xcept8 When alue of accessory is
much more precious than the
principal thing !@HK"
.xcept8 When still separable# may
demand separation !no adjunction
anyway"
:oses the accessory but has a right
to indemnity for the alue of the
accessory
Eas a right to demand separation
een if it causes injury to the
principal thing !@HK"
May demand separation !@HK!
Good faith 6ad faith
Ac%uires the accessory and has a
right to indemnity for damages he
may hae suffered
:oses the thing and has liability for
damages
6ad faith Good faith
3ays for the accessory plus
damages
+eparate thing een if it is destroyed
plus pay damages
?ption &8 Demand the owner of the
principal to pay for the alue of the
accessory plus damages
?ption *8 Demand separation een if
it causes the destruction of the
principal thing plus damages
6ad Caith 6ad Caith
As if both are in good faith
Art 421 <hene'er the owner o" the material em#loye$ witho,t his
consent has a right to in$emnity+ he may $eman$ that this consist in
the $eli'ery o" a thing e6,al in -in$ an$ 'al,e+ an$ in all other res#ects+
to that em#loye$+ or else in the #rice thereo"+ accor$ing to e/#ert
a##raisal&
Art 42) i" y the will o" their owners two things o" the same or $i""erent
-in$s are mi/e$+ or i" the mi/t,re occ,rs y chance+ an$ in the latter
case the things are not se#arale witho,t in!,ry+ each owner shall
ac6,ire a right #ro#ortional to the #art elonging to him+ earing in
min$ the 'al,e o" things mi/e$ or con",se$&
Art 42. i" y the will o" only one owner+ ,t in goo$ "aith+ two things o"
the same or $i""erent -in$s are mi/e$ or con",se$+ the rights o" the
owners shall e $etermine$ y the #ro'isions o" the #rece$ing article&
I" y the one who ca,se$ the mi/t,re or con",sion acte$ in
a$ "aith+ he shall lose the thing elonging to him th,s mi/e$ or
con",se$+ esi$es eing olige$ to #ay in$emnity "or the $amages
ca,se$ to the owner o" the thing with which his own was mi/e$
Definition of mixture
/a9es place when two or more things belonging to different owners are
mixed or combined
With the respectie identities of the component parts destroyed or lost
/wo 9inds
o )ommixtion !for solids"
o )onfusion !for li%uids"
$ules goerning mixture !co7ownership"
&' 4f the mixture by will of owners# their rights shall be goerned by their
stipulations' 4n the absence of any stipulation# each owner ac%uires a
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right or interest in the mixture in proportion to the alue of his materials
as in co7ownership'
MIETCRE
?wner who caused mixture ?wner of the thing mixed into
Good faith or by chance Good faith or by chance
.ach owner ac%uires a right
proportional to the part belonging to
him# bearing in mind the alue of the
things mixed or confused
.ach owner ac%uires a right
proportional to the part belonging to
him# bearing in mind the alue of the
things mixed or confused
6ad faith Good faith
:oses the thing mixed or confused
plus liable to pay damages
Ac%uires the thing mixed plus
entitled to damages
Art 424 One who in goo$ "aith em#loys the material o" another in whole
or in #art in or$er to ma-e thing o" a $i""erent -in$+ shall a##ro#riate
the thing th,s trans"orme$ as his own+ in$emni"ying the owner o" the
material "or its 'al,e&
I" the material is more #recio,s than the trans"orme$ thing or
is o" more 'al,e+ its owner+ may+ at his o#tion+ a##ro#riate the new
thing to himsel"+ a"ter "irst #aying in$emnity "or the 'al,e o" the thing+
or $eman$ in$emnity "or the material&
I" in the ma-ing o" the thing a$ "aith inter'ene$+ the owner o"
the material shall ha'e the right to a##ro#riate the wor- to himsel"
witho,t #aying anything to the ma-er+ or to $eman$ o" the latter that he
in$emni"y him "or the 'al,e o" the material an$ the $amages he may
ha'e s,""ere$& ;owe'er+ the owner o" the material cannot a##ro#riate
the wor- in case the 'al,e o" the latter+ "or artistic or scienti"ic reasons+
is consi$eraly more than that o" the material&
Definition of specification
/a9es place wheneer the wor9 of a person is done on the material of
another
+uch material# in a conse%uence of the wor9 itself# undergoing a
transformation'
4mparting of a new form to the material belong to another# or ma9ing of
the material of another into a different 9ind
o Clour made into bread# grapes into wine# clay into bric9s# loe
into hate !jo9e' (ute', ang boring ng (roperty/ )% youve made it
this %ar, good %or you;"
SPE:I3I:ATION !accessory follows principal"
?wner of material 6uilder
Good faith Good faith
$ight to indemnification for the alue
of the material'
+2cept8 Material more precious than
transformed thing'
?ption &8 Appropriate the new thing
to himself# indemnifying the builder
for his wor9'
?ption *8 Demand indemnity for the
material'
+hall appropriate the thing thus
transformed as his own#
indemnifying the owner of the
material for its alue'
/o be indemnified'
Appropriate the same after indemnity
for material'
Good faith 6ad faith
?ption &8 Appropriate the wor9 to
himself without paying indemnity'
!Damages also?"
+2cept8 When for artistic or scientific
reasons# the thing has a alue
considerably higher than the
material' /he owner of the material
cannot appropriate the wor9'
?ption *8 Demand indemnity for
material plus damages'
:oses his wor9' =o right to
indemnity'
3ay for the materials and damages'
Must pay indemnity and damages'
Art 42* In the #rece$ing articles+ sentimental 'al,e shall e $,ly
a##reciate$&
Adjunction# mixture and specification distinguished
Adjunction Mixture +pecification
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At least two things At least two things May be only one ting
whose form is changed
)omponent parts retain
or presere their nature
/hings mixed may or
may not retain their
respectie original
nature
)omponent parts retain
or presere their nature
Accessory follows
principal
)o7ownership results Accessory follows
principal
:;APTER T;REE% FCIETIN> O3 TITLE
ART 420 <hene'er there is a clo,$ on title to real #ro#erty or any
interest therein+ y reason o" any instr,ment+ recor$+ claim+
enc,mrance or #rocee$ing which is a##arently 'ali$ or e""ecti'e ,t it
is in tr,th an$ in "act in'ali$+ ine""ecti'e+ 'oi$ale or ,nen"orceale+
an$ may e #re!,$icial to sai$ title+ an action may e ro,ght to
remo'e s,ch clo$ or to 6,iet the title&
An action may also e ro,ght to #re'ent a clo,$ "rom eing
cast ,#on title to real #ro#erty or any interest therein&
/itle to real property refers to that upon which ownership is based'
3laintiff in action for %uiet title dies# should it be dismissed? =o' 4ts a %uasi in
rem suit'
Defendants defenses8 prescription# lac9 of jurisdiction of court
)loud on title
+emblance of title# either legal or e%uitable# or a claim or a right in real
property# appearing in some legal from# but which is in fact# inalid or
which would be ine%uitable to enforce
$e%uisites
i' 4nstrument# record# claim# encumbrance or proceeding which is
apparently alid or effectie#
ii' +uch instrument is in truth and in fact# inalid# ineffectie#
oidable or unenforceable# or has been extinguished or
terminated# or has been barred by extinctie prescription
iii' +uch instrument may be prejudicial to said title
Action to %uiet title
$e%uisites8
i. 3laintiff or complainant has a legal or an e%uitable title to# or
interest in the real property subject of the action
ii. /he deed# claim or proceeding claimed to be casting cloud on
his title must be shown to be# in fact# inalid or inoperatie
despite its prima facie appearance of alidity or legal efficacy
Action to %uiet title Actio ,uia /imet
3urpose to put an end to
troublesome litigation in respect
to the property inoled
$emedial action inoling a
present aderse claim
&
st
paragraph of Art @IH
$emoal of a possible
foundation for a future hostile
claim
3reentie action to preent a
future cloud on the title
*
nd
paragraph of Art @IH
An action to %uiet title includes an action to remoe a cloud of title'
=ature of action
<uasi in rem
Audgment is conclusie only between the parties
/he res# the subject7matter of the controersy# is within the courts
jurisdiction# and it is because of that circumstance that the court is able
to adjudicate
=ot essential that the court ac%uire jurisdiction of the person of the
defendant
6enefits from allowing actions
/as9 of court is to determine the respectie rights of the parties so that
the complainant and those claiming under him may foreer free from
any danger of hostile claim !$umarate case"
Affords prompt and ade%uate method to remoe cloud on title
3romotes improement of property
/o what 9ind of property does this action apply?
$eal property# which may refer to either the title or only an interest
therein !usufruct# seritude# lease record# etc"
=ot to personal property
o 6ut# they may be applied to personalty under exceptional
circumstances with respect to certain types of property which
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parta9e of the nature of real property !essels# motor
ehicles# certificates of stoc9s"# or
treated to some extent as realty because of
registration re%uirements for ownership or
transactions affecting them !chattel mortgage"
3rescriptibility of action
&' 4f plaintiff in possession# it does not prescribe' An action to %uiet title
brought by a person who is in possession of the property is
imprescriptible'
*' 4f plaintiff not in possession# he must ino9e his remedy within the
proper prescriptie period' /en years if in good faith# -; years if in bad
faith'
Art 422 The #lainti"" m,st ha'e legal or e6,itale title to+ or interest in
the real #ro#erty which is the s,!ect matter o" the action& ;e nee$ not
e in #ossession o" sai$ #ro#erty&
/itle and possession of the plaintiff
3laintiff must hae a legal or e%uitable title or an interest in the real
property which is the subject matter of the action
o :egal title may consist in full ownership or in na9ed ownership
o 4f plaintiff has beneficial interest in the property !such as a
beneficiary in a trust"# he has beneficial title
o 4nterest in property is any interest short of ownership# li9e the
interest of a mortgagee or a usufructuary
4f plaintiff is not in possession# he may also bring one of the three
actions mentioned in addition to the action to %uiet title
4n order to afford complete relief to the parties in action to %uiet title# the
court# without thereby conerting the action from %uieting of title into
accion publiciana, may determine#8
o 4ncidentally the ownership#
o /he stats of the legal title to the property
o $ight to the possession thereof
Art 425 There may also e an action to 6,iet title or remo'e a clo,$
there"rom when the contract+ instr,ment or other oligation has een
e/ting,ishe$ or has terminate$+ or has een arre$ y e/tincti'e
#rescri#tion&
/wo cases when action allowed
An action to %uiet title may be maintained8
&' When the contract# instrument# or other obligation has been
extinguished or terminated !right of the defendant has been
extinguished by the happening of a condition subse%uent"
*' When the contract# instrument or other obligation has been barred by
extinctie prescription !as where plaintiff has possess in bad faith the
property publicly# adersely and uninterruptedly for -; years"
Art 427 The #lainti"" m,st ret,rn to the $e"en$ant all ene"its he may
ha'e recei'e$ "rom the latter+ or reim,rse him "or e/#enses that may
ha'e re$o,n$e$ to the #lainti""Bs ene"it&
?bligation of plaintiff to return or reimburse
/he purpose of the action to %uiet title is solely
o to remoe the cloud on the plaintiffs title or
o to preent a cloud from being cast upon his title# and not to
obtain any other benefit
3laintiff is bound to return to the defendant all the benefits he may hae
receied form the latter or reimburse him for the expenses incurred on
the property which has redounded to the plaintiffs benefit !less of
course# any damage which he suffered by reason of the defendant"
Art 459 The #rinci#les o" the general law on the 6,ieting o" title are
herey a$o#te$ inso"ar as they are not in con"lict with this :o$e&
Art 451 The #roce$,re "or 6,ieting o" title or the remo'al o" a clo,$
there"rom shall e go'erne$ y s,ch r,les o" co,rt as the S,#reme
:o,rt shall #rom,lgate&
:;APTER 3OCR% RCINOCS =CIL8IN>S AN TREES IN
8AN>ER O3 3ALLIN>
Art 45) I" a ,il$ing+ wall+ col,mn or any other constr,ction is in
$anger o" "alling+ the owner shall e olige$ to $emolish it or to
e/ec,te the necessary wor- in or$er to #re'ent it "rom "alling&
I" the #ro#rietor $oes not com#ly with this oligation+ the
a$ministrati'e a,thorities may or$er the $emolition o" the str,ct,re at
the e/#ense o" the owner+ or ta-e meas,res to ins,re #,lic sa"ety&
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4f a building# wall# column or other construction is in danger of falling# the
owner has the duty to either8
o Demolish it# or
o $epair it'
4n case he doesnt# the administratie authorities# in the exercise of
police power# may order the demolition of the structure# or ta9e
measures to insure public safety
$ecognition of the limitation of the owners rights in the use and
enjoyment of his property
o Sic utere tuo ut alienum non laedas/ 2 (se your property as
not to injure others
Art 45. <hene'er a large tree threatens to "all in s,ch a way as to
ca,se $amage to the lan$ or tenement o" another or to tra'elers o'er a
#,lic or #ri'ate roa$+ the owner o" the tree shall e olige$ to "ell an$
remo'e it( an$ sho,l$ he not $o so+ it shall e $one at his e/#ense y
or$er o" the a$ministrati'e a,thorities&
?wner of the tree may be compelled to fell and remoe a threatening
tree# and should he fail to do so# the wor9 shall be ordered done at his
expenses by the administratie authorities
TITLE III A :O1O<NERS;IP
ART 454 There is co1ownershi# whene'er the ownershi# o" an
,n$i'i$e$ thing or right elongs to $i""erent #erson&
In $e"a,lt o" contracts+ or o" s#ecial #ro'isions+ co1ownershi#
shall e go'erne$ y the #ro'isions o" this Title&
What is co7ownership?
As a manifestation of ownership# it is that form of ownership which
exists wheneer an undiided thing or right belongs to different persons
As a right# it has been defined as the right of common dominion which
two or more persons hae in a spiritual or ideal part of a thing which is
not materially or physically diided
$e%uisites
i. 3lurality of owners
ii. ?bject of ownership must be an undiided thing or right
iii. .ach co7owners right must be limited only to his ideal share of the
physical whole
)haracteristics of co7ownership
&' /wo or more co7owners
*' +ingle object which is not materially or physically diided# oer which
and his ideals share of the whole# each co7owner exercises ownership#
together with the co7owners
-' =o mutual representation by the co7owners
@' .xists for the common enjoyment of the co7owners
<' =o distinct legal personality
H' Goerned first by the contract of parties
a' otherwise# by special legal proisions
b' in default of such proisions# by this /itle
?wnership of a co7owner
?wnership of whole and oer his ali%uot share
.ach owner is at the same time absolute owner of his own ideal but
definite share which determines his rights and obligations in the co7
ownership
.ery co7owner# jointly with the other co7owners# is the owner
i' of the whole# and oer the whole he exercises the right of
dominion# and
ii' he is at the same time the owner of an ali%uot portion which is
truly abstract because until diision is effected such portion is
not concretely determined
Disputed portions owned already concretely determined
=o co7ownership when the different portions owned by different people
are already concretely determined and separately identifiable# een if
not yet technically described
.xample8 When northern half of land belongs to buyer# southern
half belongs to seller
+ources of co7ownership
&' )ontract !two persons share in paying purchase price"
*' :aw !easement in party walls# absolute community of property"
-' +uccession !in the case of heirs of undiided property"
@' /estamentary disposition or donation inter ios !testator prohibits
partition of the property"
<' Cortuitous eent or by chance !commixtion or confusion by accident"
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H' ?ccupancy !two fol9s catch a wild animal in the jungles of 6orneo"
)o7ownership Aoint ?wnership
.ach co7owner# together with
the others# is the owner of the
whole undiided thing or right
but at the same time of his own
ideal part thereof
)an dispose of his share
without the consent of the other
+uriors are subrogated to the
rights of the deceased
immediately upon the death of
the latter
Disability of a co7owner does
not inure to the benefit of the
others
=o abstract share ownership by
the co7owners# the right of the
joint tenants being inseparable
=ot permitted to dispose of his
share or interest in the property
without the consent of others
4f joint tenant dies# his
ownership dies with him
Disability of a joint tenant inures
to the benefit of the others for
purposes of prescription

)o7ownership 3artnership
May be created without
formalities of a contract
=o juridical or legal personality
3urpose is collectie enjoyment
of the thing
)o7owner can dispose of his
share without the consent of the
others# transferee automatically
becoming a co7owner
=o mutual representation
Distribution of profits must be
proportional to the respectie
interests of the co7owners
=ot dissoled by death
Agreement to 9eep the thing
undiided for a period of more
than ten years is oid !although
it may be extended by a new
agreement"
)an be created only by a
contract# express or implied
Distinct juridical personality
3urpose to obtain profits
(nless authoriGed# a partner
cannot dispose and substitute
another partner in his place
3artner can generally bind the
partnership
Distribution of profits is subject
to stipulation of the partners
Dissoled by death or incapacity
/here may be agreement as to
any definite term without limit
set by law
)o7ownership .asement
.ach co7owner has a right of
dominion oer the whole
property and oer his undiided
share
$ight of ownership rests solely
on each and eery co7owner
oer a single object
3recisely a limitation on the right
of dominion
$ight of dominion is in faor of
one or more persons and oer
two or more different things
)ase doctrines
/he property regime of parties to a bigamous marriage is goerned by
Art &@D of the Camily )ode which proides that all properties ac%uired
by the parties out of their actual joint contribution of money# property# or
industry shall be goerned by the rules on co7ownership' 4f there is no
contribution from either or both of the spouses# there can be no co7
ownership' !Acre Mutti99i 7 aw yeah# what a name'"
Art 45* The share o" the co1owners+ in the ene"its as well as in the
charges+ shall e #ro#ortional to their res#ecti'e interests& Any
sti#,lation in a contract to the contrary shall e 'oi$&
The #ortions elonging to the co1owners in the co1ownershi#
shall e #res,me$ e6,al+ ,nless the contrary is #ro'e$&
3resumption8 3roportional to their respectie interests
Does not apply to co7ownership based on will or by donation'
Art 450 Each co1owner may ,se the thing owne$ in common+ #ro'i$e$
he $oes so in accor$ance with the #,r#ose "or which it is inten$e$ an$
in s,ch a way as not to in!,re the interest o" the co1ownershi# or
#re'ent the other co1owners "rom ,sing it accor$ing to their rights& The
#,r#ose o" the co1ownershi# may e change$ y agreement+ e/#ress
or im#lie$&
:imitations on co7owners right to use
&' Must be n accordance with the purpose for which the co7ownership is
intended
$esort to the agreement
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4n absence thereof# it is to be understood that the thing is
intended for that use for which it is ordinarily adapted
according to its nature
)o7owners are free to change the purpose of the co7ownership
by agreement# express or implied
o Eoweer# mere tolerance does not change purpose
*' Must not injure the interest of the co7ownership
-' Must not preent the co7owners from using it according to their rights
Art 452 Anyone o" the co1owners may ring an action in e!ectment&
Action in ejectment
Any co7owner can bring# in behalf of himself# and the other co7owners
an action in ejectment affecting the co7ownership
o Corcible entry# unlawful detainer# recoery of possession#
recoery of ownership
May be brought against strangers and een against a co7owner
o ?nly purpose of an action against a co7owner who ta9es
exclusie possession and asserts exclusie ownership of the
property is to obtain recognition of the co7ownership
An aderse decision in the action is not necessarily res judicata with
respect to the other co7owners not being parties to the action
o .xception8 where it appears that the action was instituted in
their behalf with their express or implied consent# or
o /he rights in the co7ownership are deried from the title of their
predecessors7in7interest found by the court to be inalid or
inexistent
Art 455 Each co1owner shall ha'e a right to com#el the other co1
owners to contri,te to the e/#enses o" #reser'ation o" the thing or
right owne$ in common an$ to the ta/es& Anyone o" the latter may
e/em#t himsel" "rom this oligation y reno,ncing so m,ch o" his
,n$i'i$e$ interest as may e e6,i'alent to his share o" the e/#enses
an$ ta/es& No s,ch wai'er shall e ma$e i" it is #re!,$icial to the co1
ownershi#&
?bligation to contribute to expenses of preseration and to taxes
/he expenses of preseration of the thing or right owned in common
and the amount of taxes due thereon should be borne by all
A co7owner who adanced them has a right to demand reimbursement
from the others in proportion to their respectie interests in the co7
ownership
$efers only to necessary expenses
(seful expenses are not coered# unless such were incurred with the
consent of the others
.xpenses for pure luxury are not also refundable# not being for
preseration
$enunciation by a co7owner of his share in the co7ownership
$enunciation need not be total
/he co7owner need only renounce or gie up in faor of the other co7
owners so much of this undiided share as may be e%uialent to his
share of expenses and taxes
.xample?
Art 457 Re#airs "or #reser'ation may e ma$e at the will o" one o" one
o" the co1owners+ ,t he m,st+ i" #racticale+ "irst noti"y his co1owners
o" the necessity "or s,ch re#airs& E/#enses to im#ro'e or emellish the
thing shall e $eci$e$ ,#on y a ma!ority as $etermine$ in Article 47)&
=ecessity for agreement on expenses
Acts or decisions affecting the ting owned in common may be grouped
into
o Acts of preseration !Art @DK"
o Acts of administration !Art @K*"
o Acts of alteration !Art @K&"
$epairs for preseration
o A co7owner has the right to compel the other co7owners to
contribute to the expenses of preseration# maintenance or
necessary repairs of the thing or right owned in common# and
to the taxes# een if incurred without the 9nowledge of other
co7owners or prior notice to them# in iew of the nature of
expenses
o )o7owner must# if practicable# first notify the co7owners of the
necessity for the repairs
4f impracticable or where the repairs are ery urgent
and the other co7owners are in remote places and
cannot be reached# the notice may be dispensed with
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o /he lac9 of notice# een if practicable# would not exempt the
other co7owners from the obligation to contribute to the
expenses' 6ut the co7owner who adanced them has the
burden of proing that they were properly incurred'
Art 479 <hene'er the $i""erent stories o" a ho,se elong to $i""erent
owners+ i" the titles o" ownershi# $o not s#eci"y the terms ,n$er which
they sho,l$ contri,te to the necessary e/#enses an$ there e/ists no
agreement on the s,!ect+ the "ollowing r,les%
1& the main an$ #arty walls+ the roo"s an$ the other things ,se$
in common+ shall e #reser'e$ at the e/#ense o" all the
owners in #ro#ortion to the 'al,e o" the story elonging to
each(
)& Each owner shall ear the cost o" maintaining the "loor o" his
story( the "loor o" the entrance+ "ront $oor+ common yar$ an$
sanitary wor-s common to all shall e maintaine$ at the
e/#ense o" all the owners #ro rata(
.& The stairs "rom the entrance to the "irst story shall e
maintaine$ at the e/#ense o" all the owners #ro rata+ with the
e/ce#tion o" the owner o" the gro,n$ "loor( the stairs "rom the
"irst to the secon$ story shall e #reser'e$ at the e/#ense o"
all+ e/ce#t the owner o" the gro,n$ "loor an$ the owner o" the
"irst story( an$ so on s,ccessi'ely&
Applies if the titles of ownership do not specify the terms thereof or
there exists no agreement on the subject
Art 471 None o" the co1owners shall witho,t the consent o" the others+
ma-e alterations in the thing owne$ in common+ e'en tho,gh ene"its
"or all wo,l$ res,lt there"rom& ;owe'er+ i" the withhol$ing o" the
consent y one or more ot the co1owners is clearly #re!,$icial to the
common interest+ the co,rts may a""or$ a$e6,ate relie"&
=ecessity of consent of other co7owners for alterations
Alteration contemplates a change made by a co7owner in the thing
owned in common which inoles8
o )hange of the thing from the state or essence in which the
others beliee it should remain5 or
o Withdrawal of the thing from the use to which they wish it to be
intended5 or
o Any other transformation which prejudices the condition or
substance of the thing or its enjoyment by the others'
Alteration is not limited to material or physical changes
o 4ncludes any act of ownership by which a real right or
encumbrance is imposed on the common property# such as
seritude# registered lease# lease of real property for more than
one year# mortgage# pledge
=68 (nanimous consent of all the co7owners# not a mere majority# is
necessary een if the alteration would proe beneficial because
alteration is an act of ownership and not of mere administration
o )onsent may be expressed or implied
:iability for alteration8 the co7owner who ma9es such alteration without
the express or implied consent of the other co7owners acts in bad faith
because he does so as if he were the sole owner
o Ee loses what he has spent
o ?bliged to demolish the improements done# and
o :iable to pay for loses and damages the community property or
the other co7owners may hae suffered
Art 47) 3or the a$ministration an$ etter en!oyment o" the thing owne$
in common+ the resol,tions o" the ma!ority o" the co1owners shall e
in$ing&
There shall e no ma!ority ,nless the resol,tion is a##ro'e$
y the co1owners who re#resent the controlling interest in the o!ect o"
the co1ownershi#&
Sho,l$ there e no ma!ority+ or sho,l$ the resol,tion o" the
ma!ority e serio,sly #re!,$icial to those intereste$ in the #ro#erty
owne$ in common+ the co,rt+ at the instance o" an intereste$ #arty+
shall or$er s,ch meas,res as it may $eem #ro#er+ incl,$ing the
a##ointment o" an a$ministrator&
<hene'er a #art o" the thing elongs e/cl,si'ely to one o" the
co1owners+ an$ the remain$er is owne$ in common+ the #rece$ing
#ro'isions shall a##ly only to the #art owne$ in common&
$ules for acts of administration and better enjoyment
Acts of management of the common property
/hey contemplate acts or decisions for the common benefit of all the co7
owners and not for the benefit of only one or some of them
While alteration is more or less permanent# acts of administration hae
transitory effects and hae for their purpose the preseration#
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preparation and better enjoyment of the thing and which do not affect its
essence# nature or substance
=68 Majority rule preails'
o /he majority consists of co7owners who represent the
controlling interest in the object of the co7ownership'
o /he majority li9ewise decides the expenses to improe or
embellish the common property' =otice must be gien to the
minority unless it is impracticable to do so'
4f there is no majority or the resolution of the majority is seriously
prejudicial to the interests of the other co7owners# the court# at the
instance of an interested party# may ta9e such measures as it may
deem proper
o .xamples of prejudicial acts8
$esolution calls for a substantial change of the thing
AuthoriGes leases# loans# and other contracts without
the necessary security
(pholds the continued employment of an
administrator who is guilt of fraud or negligence in his
management
Art 47. Each co1owner shall ha'e the ",ll ownershi# o" his #art an$ o"
the "r,its an$ ene"its #ertaining thereto+ an$ he may there"ore
alienate+ assign or mortgage it+ an$ e'en s,stit,te another #erson in
its en!oyment+ e/ce#t when #ersonal rights are in'ol'e$& =,t the e""ect
o" the alienation or the mortgage+ with res#ect to the co1owners shall
e limite$ to the #ortion which may e allotte$ to him in the $i'ision
,#on the termination o" the co1ownershi#&
$ights of each co7owner
&' Cull ownership of his part# that is# his undiided interest or share in the
common property
*' Cull ownership of the fruits and benefits pertaining thereto
-' May alienate# assign or mortgage his ideal interest or share
independently of the other co7owners
@' May een substitute another person in the enjoyment of his part# except
when personal rights are inoled
A co7owner is gien the legal right of redemption in case the shares of
all the other co7owners or any of them are sold to a third person !not a
co7owner"
&
o Earry# $on and =eille were co7owners of a parcel of land'
Earry sold his share to Draco' $on and =eille may redeem
the share from Angel' 4f only $on exercises the right# he shall
pay only a reasonable price' +ubject to reimbursement from
=eille# as it is a preseration expense'
o 4f they both want to exercise the right# they may only do so in
proportion to the share they may respectiely hae in the thing
owned in common'
A co7owner may exempt himself from the obligation to contribute to the
expenses of preseration of the thing or right owned in common and to
the taxes by renouncing so much of his interest as may be e%uialent to
his share of the expenses and taxes
+ale or mortgage of common property
(ndiided portion
o A co7owner is free to dispose of his pro indiiso share and of
the fruits and other benefits arising from that share but the
transferee does not ac%uire an specific or determinate physical
portion of the whole# his right being limited to the portion which
may be allotted to him upon the partition of the property
Definite portion
o /he fact that a deed of sale appears to coney a definite or
segregated portion of the property under co7ownership that is
still undiided does not per se render the sale a nullity
o /he sale is alid subject only to the condition that the interests
ac%uired by the endee must be limited to the part that may be
assigned to the co7owner7endor in the diision upon the
termination of the co7ownership
1
Art &H*; A co7owner of a thing may exercise the right of redemption in case the
shares of all the other co7owners or of any of them# are sold to a third person' 4f the
price of the alienation is grossly excessie# the redepmtioner shall pay only a
reasonable one'
+hould two or more co7owners desire to exercise the right of redemption they may
only do so in proportion to the share they may respectiely hae in the thing owned in
common'
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o /he sale affects only his proportionate or abstract share in the
property owned in common# subject to the results of the
partition# but not those of the other co7owners who did not
consent to the sale
o /here may be a alid sale of a definite portion of the property
co7owned een before actual partition where the rule of
estoppel apples !co7owners didnt object when seller pointed a
portion out to a potential buyer"
Whole property
o .en if a co7owner sells the whole property as his own# or
without the consent of ther other co7owners# the sale is alid
only insofar as his ideal %uota is concerned unless the sale is
authoriGed by the other co7owners
o A sale of the entire property by one co7owner will only transfer
the rights of said co7owner to the buyer# thereby ma9ing the
buyer a co7owner of the property
o $ecourse of co7owners when their consent was not secured8
action for partition
Where personal rights are inoled
A co7owner may substitute another in the enjoyment of his undiided
interest in the co7ownership except when personal rights are inoled
3ersonal right 2 a right which cannot be transferred because it affects
the personal relations of the co7owners with one another
Art 474 No co1owner shall e olige$ to remain in the co1ownershi#&
Each co1owner may $eman$ at any time the #artition o" the thing
owne$ in common+ inso"ar as his share is concerne$&
Ne'ertheless+ an agreement to -ee# the thing ,n$i'i$e$ "or a
certain #erio$ o" time+ not e/cee$ing ten years+ shall e 'ali$& This
terms may e e/ten$e$ y a new agreement&
A $onor or testator may #rohiit #artition "or a #erio$ which
shall not e/cee$ twenty years&
Neither shall there e any #artition when it is #rohiite$ y
law&
No #rescri#tion shall r,n in "a'or o" co1owner or co1heir
against his co1owners or co1heirs so long as he e/#ressly or im#lie$ly
recogni4es the co1ownershi#&
/ermination of co7ownership
)o7ownership may be terminated in different ways# as follows
&' )onsolidation or merger in only one of the co7owners of all the
interests of the others5
*' Destruction or loss of the property co7owned
-' Ac%uisitie prescription in faor of a third person# or a co7owner
who repudiates the co7ownership
@' 3artition# judicial or extrajudicial
<' /ermination of the period agreed upon or imposed by the donor or
testator# or of the period allowed by law
H' +ale by the co7owners of the thing to a third person and the
distribution of its proceeds among them
$ight of a co7owner to demand partition
3artition is the diision between two or more persons of real or personal
property which they own in common so that each may enjoy and
possess his sole estate to the exclusion of and without interference from
the others
)o7owner ahs the right to demand at any time partition of the thing
owner in common# insofar as his share is concerned for 0no co7owner
shall be obliged to remain in the co7ownership1
Action to demand partition is imprescriptible or cannot be barred by
laches# absent a clear repudiation of the co7ownership by a co7owner
clearly communicated to the other co7owners
/he actual possession and enjoyment of seeral portions of the
common property by some of the co7owners does not of itself proide
proof that the property has already been partitioned and co7ownership
terminated'
o A co7owner cannot# without the conformity of the other co7
owners or judicial decree of partition# adjudicate to himself in
fee simple a determinate portion of the property owned in
common as his share theirein# to the exclusion of the others
.xceptions to the right to demand partition
&' When the co7owners hae agreed to 9eep the thing undiided for a
certain period of time# not exceeding ten years
o 3eriod stipulated exceeds ten years would be oid insofar as
the excess is concerned
*' When the partition is prohibited by donor or testator for a certain period
not exceeding twenty years
-' When the partition is prohibited by law
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o )onjugal property# etc
@' When partition would render the thing unsericeable for the use for
which it is intended
<' When another co7owner has possessed the property as exclusie owner
and for a period sufficient to ac%uire it by prescription
3rescription in faor of or against a co7owner
3rescription does not run in faor or against a co7owner or co7heir
)o7ownership is a form of a trust# with each owner being a trustee for
each other'
Where# howeer# a co7owner or co7heir repudiates the co7ownership#
prescription begins to run from the time of repudiation !re%uisites"
i' Ee had performed une%uiocal acts of repudiation of the co7
ownership amounting to an ouster of the beneficiary or the
other co7owners
ii' +uch positie acts of repudiation hae been made 9nown to
the beneficiary or other co7owners
iii' .idence thereon is clear# complete and conclusie in order to
establish prescription without any shadow of doubt5 and
i' 3ossession is open# continuous# exclusie and notorious
.xamples of specific acts which are considered as acts of repudiation
Ciling by a trustee of an action in court against the trustor to %uiet title to
property
Action for reconeyance of land based on implied or constructie trust
)ancellation of title in the name of the apparent beneficiaries and
application for a new certificate of title in his !administratorLtrustee"
name
Art 47* Notwithstan$ing the #ro'isions o" the #rece$ing article+ the co1
owners cannot $eman$ a #hysical $i'ision o" the thing owne$ in
common+ when to $o so wo,l$ ren$er it ,nser'iceale "or the ,se "or
which it is inten$e$& =,t the co1ownershi# may e terminate$ in
accor$ance with Article 475&
Art 470 Partition may e ma$e y agreement etween the #arties or y
!,$icial #rocee$ings& Partition shall e go'erne$ y the R,les o" :o,rt
inso"ar as they are consistent with this :o$e&
3urpose and effect of partition
3artition has for its purpose the separation# diision and assignment of
the thing held in common among those to whom it may belong'
After partition# the portion belonging to each co7owner has been
identified and localiGed# so that co7ownership# in its real sense# no
longer exists
Action for partition
/wo phases8
o Determine whether there is indeed a co7ownership
o Determine how the property is to be diided
/he issue of ownership or co7ownership must first be soled in order to
effect a partition of properties
An action for partition will not lie if the claimant has no rightful interest
oer the subject property
Eow partition effected
May be effected extrajudicially pursuant to an agreement
May be effected judicially by judicial proceedings under $ule HK of the
$ules of )ourt
o An action for partition is in the nature of an action =uasi in rem
Application of the +tatute of Crauds
/he +tatute of Crauds does not apply to partition because it is not
legally deemed a coneyance or a sale of property resulting in change
of ownership but simply a segregation and designation of that part of the
property which belongs to each of the co7owners
?ral partition is alid and enforceable where no third persons are
inoled
o 4n cases of oral partition# the actual possession of one of the
property is eidence that there was indeed oral partition'
o 4n an oral partition under which the parties went into
possession# exercises acts of ownership# or otherwise partly
performed the partition agreement# e%uity will confirm such
partition and in a proper case# decree title in accordance with
the possession in seeralty
Art 472 The cre$itors or assignees o" the co1owners may ta-e #art in
the $i'ision o" the thing owne$ in common an$ o!ect to its eing
e""ecte$ witho,t their conc,rrence& =,t they cannot im#,gn any
#artition alrea$y e/ec,te$+ ,nless there has een "ra,$+ or in case it
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was ma$e notwithstan$ing a "ormal o##osition #resente$ to #re'ent it+
witho,t #re!,$ice to the right o" the $etor or assignor to maintain its
'ali$ity&
/he law does not expressly re%uire that preious notice of the proposed
partition be gien to the creditors and assignees' 6ut as they are
granted the right to participate in the partition# they hae also the right to
be notified thereof' 4n the absence of notice# the partition will not be
binding on them'
$ules8
o 4f no notice is gien# the creditors or assignees may %uestion
the partition already made5
o 4f notice is gien# it is their duty to appear and ma9e 9nown
their position5 they may concur with the proposed partition or
object to it5 and
o /hey cannot impugn a partition already executed or
implemented unless8
/here has been fraud# whether or not notice was
gien# and whether or not formal opposition was
presented# or
/he partition was made notwithstanding that formal
opposition was presented to preent it# een if there
has been no fraud'
Debtor or assignor has always the right to show the alidity of the
partition'
Art 475 <hene'er the thing is essentially in$i'isile an$ the co1owners
cannot agree that it e allotte$ to one o" them who shall in$emni"y the
others+ it shall e sol$ an$ its #rocee$s $istri,te$&
Although the thing cannot be physically diided# the co7ownership may
neertheless be terminated in accordance with the aboe proision
pursuant to the rule in Art @K@ by adjudication of the thing to one of the
co7owners who shall indemnify the others or by its sale with the
proceeds thereof diided among the co7owners
+ale may be priate# public# and purchases may be a co7owner or a
third person
Art @KD applies when8
o /hing indiisible
o )o7owners cant agree that it be allotted to one of them# who
shall indemnify the others
o +o# ibenta na lang;
Art 477 The #artition o" a thing owne$ in common shall not #re!,$ice
thir$ #ersons who shall retain the rights o" mortgage+ ser'it,$e+ or any
other real rights elonging to them e"ore the $i'ision was ma$e&
Personal rights #ertaining to thir$ #ersons against the co1ownershi#
shall also remain in "orce+ notwithstan$ing the #artition&
/hird persons# refer to all those with real rights# such as mortgage and
seritude oer the thing owned in common or with personal rights
against the co7owners who had no participation whateer in the partition
Art *99 C#on #artition+ there shall e a m,t,al acco,nting "or ene"its
recei'e$ an$ reim,rsements "or e/#enses ma$e& Li-ewise+ each co1
owner shall #ay "or $amages ca,se$ y reason o" his negligence or
"ra,$&
Art *91 E'ery co1owner shall+ a"ter #artition+ e liale "or $e"ects o" title
an$ 6,ality o" the #ortion assigne$ to each o" the other co1owners&
What are the obligations of the co7owners upon partition? !A$4W"
&' Mutual accounting for the benefits receied !because the fruits and
other benefits of the thing belong to all the co7owners"
*' Mutual reimbursement for expenses !necessary expenses# taxes# etc"
-' 4ndemnity for damages caused by reason of negligence or fraud
@' $eciprocal warranty for defects of title or %uality of the portion assigned
to a co7owner !land allotted to a co7owner belongs to a third party# or the
property is of inferior %uality"
a' Atty Abrenica said that in practice# the remedy in this situation
is to diide the remaining property and just gie it to the one
prejudiced
T;E :ON8OMINICM A:T
A condominium is an
o 4nterest in real property consisting of
A separate interest in a unit in a residential# industrial#
or commercial building# and
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An undiided interest in common directly or indirectly
in the land on which it is located and in other common
areas of the building'
/wo important documents8 Master Deed and Declaration of $estrictions
Coreigners can own up to @;O of the entire condominium corporation
!so if the condominium has &;; units# foreigners can own up to @; units"
03roject1 means the entire parcel of real property diided or to be
diided in condominiums# including all structures thereon
0)ommon areas1 !meaning the entire project excepting all units
separately granted or held or resered" are owned by the condominium
corporation
03riate units1 !meaning the a part of the condo project intended for any
type of independent use or ownership" are owned by the unit owners
o (nit owners are shareholders in the condominium
o 4f you sell your unit to someone else# you lose your status as a
shareholder in the condominium corporation
)ondominium )ertificate of /itle is whats gien !as opposed to a ?)/
or /)/"
TITLE V A POSSESSION
:;APTER ONE
POSSESSION AN8 T;E GIN8S T;EREO3
Art *). Possession is the hol$ing o" a thing or the en!oyment o" a right&
)oncept of possession
As a distinct legal concept# possession is the holding of a thing or the
enjoyment of a right with the intention to possess in ones own right
?wnership and possession distinguished
/here is ownership when a thing pertaining to one person is completely
subjected to his will in a manner not prohibited by law and consistent
with the rights of others' 4t confers certain right to the owner !right to
enjoy the thing owned and the right to exclude other persons from
possession thereof"
?n the other hand# possession is defined as the holding of a thing or the
enjoyment of a right' /o possess means to actually and physically
occupy a thing with or without a right'
3ossession may be in the concept of an owner or in the concept of a
holder'
A person may be declared owner but he may not be entitled to
possession' !As in when the possession is in the hands of a tenant"
A judgment for ownership does not necessarily include possession as a
necessary incident'
Aust as possession is not a definite proof of ownership# neither is non7
possession inconsistent with ownership'
What are the elements of possession?
&' Eolding or control of a thing or right
3ossession always implies the element of corpus or occupation#
whether in ones own name or another !except in cases in Art <-I"
4n other words# there must be possession in fact
*' With intention to possess
the intention and the will to possess are inferred from the fact that
the thing is under the control of the alleged possessor# howeer# the
existence of the animus possidendi is always subject to
contradiction !when in fact the person does not in fact exercise
such power of control and does not intend to do so"
4nsane and demented persons cannot ac%uire possession as they
are incapable of understanding their actions# therefore# the animus
possidendi cannot be present
-' 4n ones own right
3ossession may be in ones own name or that of anothers !by
himself or by an agent"
4n the first case# the possession may be in the concept of owner or
in the concept of a holder of a thing with ownership pertaining to
another
4n the second case# the possession is exercised by the owner or
holder thru his agent
4n both cases# the possession of the owner or holder is by irtue of
his right as such owner or holder
What are the relations created by possession?
3ossession is characteriGed by two relations8
&' 3ossessors relation to the property itself 2 this assumes that the
possessor exercises some degree of control more or less effectie
oer the object'
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*' 3ossessors relation to the world 2 aside from the power of control
oer the object# the possessor must also hae the ability to exclude
others from his possession' A customer who holds and examines a
piece of jewelry in the presence of the seller may be said to hae
only custody# not possession# of the jewelry'
Corms or degrees of possession
&' 3ossession without any title whateer
Mere holding or possession without any right or title at all# such as
that of a thief or s%uatter
*' 3ossession with a juridical title
3redicated on a juridical relation existing between the possessor
and the owner !or one acting in his behalf" of the thing but not in the
concept of owner# such as that of a lessee# usufructuary# depositary#
agent# etc
-' 3ossession with a just title
3ossession of an aderse claimant whose title is sufficient to
transfer ownership but is defectie# such as when the seller is not
the true owner or could not transmit his rights thereto to the
possessor who acted in good faith
@' 3ossession with a title in fee simple
3ossession deried from the right of dominion or possession of an
owner' /his is the highest degree of possession'
=ature of possession
&' As an act
+imply the holding of a thing or the enjoyment of a right with the
intention to possess in ones own right
*' As a fact
When there is holding or enjoyment# then possession exists as a
fact' 4t is the state or condition of a person haing property under
his control# with or without right
-' As a right
$efers to the right of a person to that holding or enjoyment to the
exclusion of all others haing better right than the possessor' 4t may
be8
o Jus possidendi, or right to possession which is incidental
to and included in the right of ownership5 or
o Jus possessionis or right o% possession independent of
and apart from the right of ownership'
3ossession as a fact
&' /he face of possession gies rise to certain rights and presumptions'
/hus a person has a right to be respected in his possession# and
should he be disturbed therein# he shall be protected or restored to
said possession'
A possessor has in his faor the presumption that his possession is
lawful 2 that he is the owner or has been gien the right of
possession by the owner' Ee who would disturb a possessor must
show either ownership or a better possessory right'
*' 3ossession is not a definitie proof of ownership nor is non7possession
inconsistent therewith' 3ossession# howeer# may create ownership
either by occupation or by ac%uisitie prescription'
)lasses of possession
&' 3ossession in ones own name or in the name of another !Art <*@"
*' 3ossession in the concept of owner or possession in the concept of
holder !Art <*<"# and
-' 3ossession in good faith or possession in bad faith !Art <*H"
.xtent of possession
&' Actual possession
?ccupancy in fact of the whole or at least substantially the whole'
With land# it consists in the manifestation of acts of dominion oer it
of such a nature as a party would naturally exercise oer his
property'
:iterally# to possess means to actually and physically occupy a
thing with or without a right'
*' )onstructie possession
?ccupancy of part in the name of the whole under such
circumstances that the law extends the occupancy to the
possession of the whole'
Doctrine of constructie possession
3ossession in the eyes of the law does not mean that a man has to
hae his feet on eery s%uare meter of ground before it can be said that
he is in possession'
/he general rule is that the possession and cultiation of a portion of a
tract of land under claim of ownership of all is constructie possession
of all'
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o /here are %ualifications to this rule# and one of them is that
relating to the siGe of the tract in controersy with reference to
the portion actually in possession of the claimant'
Art *)4 Possession may e e/ercise$ in oneBs own name or in that o"
another&
=ame under which possession may be exercised
An owner or a holder may exercise his possession in his own name or
through another'
4n the same way# possession may be ac%uired by the same person who
is to enjoy it or by one acting for another !Art <-*"
&' 4n ones own name
o When in ones own name# the fact of possession and the right
to such possession are found in the same person# such as the
actual possession of an owner or a lessor of land'
*' 4n the name of another
o When possession is in the name of another# the one in actual
possession is without any right of his own# but is merely an
instrument of another in the exercise of the latters possession#
such as possession of an agent# serant or guard' 3ossession
in anothers name may be8
Foluntary# when exercised by irtue of an agreement#
or
=ecessary or legal# when exercised by irtue of law#
such as the possession in behalf of incapacitated
persons'
3hysical or material# when the possessor is a mere
custodian of the property and has no independent
right or title to retain or possess the same as against
the owner !li9e the possession of money receied by
a teller for the ban9"# or
Auridical# when the possession gies the transferee a
right oer the thing which the transferee may set up
against the owner# such as the possession of an
agent who receies the proceeds of sales of goods
deliered to him in agency by his principal'
)ase doctrines
4n the grammatical sense# to possess means to hae# to actually and
physically occupy a thing# with or without a right' /wo things are
paramount in possession 2
o there must be occupancy# apprehension or ta9ing# and
o there must be intent to possess !animus possidendi"' !Mu
3acleb"
3ossession always includes the idea of occupation' 4t is not necessary
that the person in possession should himself be the occupant' /he
occupancy can be held by another in his name' without occupancy#
there is no possession' !Mu 3acleb"
Art *)* The #ossession o" things or rights may e ha$ in one o" two
conce#ts% either in the conce#t o" owner+ or in that o" the hol$er o" the
thing or right to -ee# or en!oy it+ the ownershi# #ertaining to another
#erson&
)oncept in which possession may be had
)oncept# as contemplated in the proision# does not mean the opinion#
attitude or belief of the possessor# but of the others# generally in iew of
the circumstances which precede and accompany the possession'
/hus# possession in the concept of owner is distinguished from
possession in good faith'
/his 9ind of possession is also referred as to aderse possession that
may ripen into ownership under Article <@;'
3ossession may be had in one of two concepts8
./ 3ossession in the concept of owner !en concepto de dueno)
/his ta9es place when the possessor# by his actions# is
considered or is belieed by other people as the owner#
regardless of the good or bad faith of the possession'
4t is possession under a claim of ownership or title by one who
is the owner himself or one who is not the owner but claims to
be and acts as the owner'
0/ 3ossession in the concept of holder
/his ta9es place when the possessor of a thing or right holds it
merely to 9eep or enjoy it# the ownership pertaining to another
person'
4t is possession not under a claim of ownership# the possessor
ac9nowledging in another a superior right which he beliees to
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be of ownership# whether this be true or not# or his belief be
right or wrong'
A person may be a lessor although he is not the owner of the
property leased' 4n lease# only the temporary use and
enjoyment# not the ownership of the property is transferred'
3ossession in concept of both owner and holder or in neither
4t is possible that a person may exercise possession both in the concept
of owner and in the concept of holder'
A distinction must be borne in mind between possession of the thing
itself and possession of the right to 9eep or enjoy the thing'
o $ights are possessed in the concept of owner' /hus# the
lessee possesses the thing leased in the concept of holder#
and the right of lease in the concept of owner'
/he agent# parent and other legal representaties possess neither in the
concept of owner nor holder' /hey possess in the name of another'
)ase doctrines
3ossession is8
o open when it is patent# isible# apparent# notorious and not
clandestine'
o continuous when uninterrupted# unbro9en and not intermittent
or occasional'
o exclusie when the aderse possessor can show exclusie
dominion oer the land and an appropriation of it to his own
use and benefit
o notorious when it is so conspicuous that it is generally 9nown
and tal9ed off by the public or the people in the neighborhood'
(se of land is aderse when it is open and notorious' !$epublic
4mperial )redit )orporation"
While a tax declaration by itself is not sufficient to proe ownership# it
may sere as sufficient basis for inferring possession' !$ep 4))"
/ax declarations and receipts can only be the basis of a claim of
ownership through prescription when coupled with proof of actual
possession' !Eeirs of )abal )abal"
Eoweer# tax declarations and receipts are not conclusie eidence of
ownership' At most# they constitute mere prima facie proof of ownership
or possession of the property for which the taxes hae been paid' 4n the
absence of actual public and aderse possession# the declaration of the
land for tax purposes does not proe ownership' !)e%uena 6olante"
Art *)0 ;e is $eeme$ a #ossessor in goo$ "aith who is not aware that
there e/ists in his title or mo$e o" ac6,isition any "law which
in'ali$ates it&
;e is $eeme$ a #ossessor in a$ "aith who #ossesses in any
case contrary to the "oregoing&
Mista-e ,#on a $o,t",l or $i""ic,lt 6,estion o" law may e the
asis o" goo$ "aith&
Define possessor in good faith and in bad faith
A possessor in good faith !#uena %e) is one who is not aware that there
exists in his title or mode of ac%uisition any flaw which inalidates it'
A possessor in bad faith !mala %e) is one who possesses in any case
contrary to the foregoing5 he is aware that there exists in his title or
mode of ac%uisition a flaw which inalidates it'
/his article presupposes that the there exists a flaw in the title or mode
of ac%uisition of the possessor who is either aware or not aware of it'
4f there is no flaw# there can be no issue regarding good or bad faith'
Good faith is always presumed# and upon him who alleges bad faith on
the part of the possessor rests the burden of proof'
/he distinction is importance principally in connection with the receipt of
fruits and the payment of expenses and improements and the
ac%uisition of ownership by prescription'
/he distinction is immaterial in the exercise of the right to recoer under
Article <-K which spea9s of eery possessor'
/he good or bad faith is necessarily personal to the possessor but in the
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
he acts'
$e%uisites for possession in good faith or bad faith
&' /he possessor has a title or mode of ac%uisition5 !Art I&*"
*' /here is a flaw or defect in said title or mode5 and
-' /he possessor is unaware or aware of the flaw or defect or beliees that
the thing belongs or does not belong to him'
A possessor in good faith becomes a possessor in bad faith from the
moment he becomes aware that what he beliees to be true is not so'
4f the flaw is in the title of the possessors predecessor# and affects his
own title# the flaw exists in his own title unless he can sustain his own
independent of that of his predecessor'
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)oncept of good faith
Good faith or the lac9 of it is a %uestion of intention# but in ascertaining
the intention# the courts are necessarily controlled by the eidence as to
the conduct and outward acts by which alone the inward motie may be
determined'
Good faith or the want of it# is not a isible# tangible fact that can be
seen or touched but rather a state or condition of mind which can only
be ascertained by actual or fancied to9ens or signs'
/he essence of bona %ides or good faith lies in8
o /he honest belief in the alidity of ones right#
o ignorance of a superior claim# and
o absence of intention to oerreach another# or to defraud or to
see9 an unconscionable adantage' !also the doctrine of Eeirs
of )abal"
Good faith must rest on a colorable right in the possessor beyond a
mere stubborn belief in ones title'
?ne is considered a possessor in good faith if he is not aware that there
exists in his title or mode of ac%uisition any flaw which inalidates it'
6asically# its honesty of intention and absence of malice'
)oncept of bad faith
4t is the opposite of good faith'
4t imputes a dishonest purpose to do wrong or cause damage'
4t contemplates a state of mind affirmatiely operating with furtie design
or some motie of self7interest of ill7will for ulterior purposes'
Mista9e upon a doubtful or difficult %uestion of law
/he phrase 0mista9e upon a doubtful or difficult %uestion of law1 refers
to the honest error in the application of the law or interpretation of
doubtful or conflicting legal proisions or doctrines'
4t is different from 0ignorance of the law'1
Manresa says that gross and inexcusable ignorance of the law may not
be the basis of good faith# but excusable ignorance may be such basis if
it is based upon ignorance'
Dean )apistrano says that excusable ignorance as a basis of good faith
was rejected by the )ode )ommission'
)ase doctrines
/he possessor with a /orrens /itle who is not aware of any flaw in his
title which inalidates it is considered a possessor in good faith and his
possession does not lose this character except in the case and from the
moment his /orrens /itle is declared null and oid by final judgment of
the )ourts' !DiGon $odrigueG"
/he defense of haing purchased the property in good faith may be
aailed of only where registered land is inoled and the buyer had
relied in good faith on the clear title of the registered owner' !Daclag
Macahilig"
Art *)2 >oo$ "aith is always #res,me$+ an$ ,#on him who allege$ a$
"aith on the #art o" a #ossessor rests the ,r$en o" #roo"&
3resumption of good faith
/his article establishes the presumption of good faith5 it does not say
that good faith exists# but that it is presumed'
/he presumption is just because possession is the outward sign of
ownership' 4t is to be presumed that the right of the possessor is well7
founded'
.ery person is presumed to be honest until the contrary is shown'
6ut note that for the purposes of prescription# just title must be proed5 it
is neer presumed'
Art *)5 Possession ac6,ire$ in goo$ "aith $oes not lose this character
e/ce#t in the case an$ "rom the moment "acts e/ist which show that
the #ossessor is not ,naware that he #ossesses the thing im#ro#erly
or wrong",lly&
)essation of good faith during possession
3ossession which begins in good faith is presumed to continue in good
faith until the possessor ac%uires 9nowledge of facts showing a defect
or wea9ness in his title'
/he law spea9s of 0facts1 in place of the word 0acts1# the former being
broader than the latter' /hus# it is immaterial whether the 0facts1 from
which bad faith can be deduced inole acts of the possessor himself or
of some other person or any extraneous eidence' 6ut the existence of
the facts mentioned in the article must be proed'
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6ad faith begins or good faith is interrupted from the time the possessor
becomes aware 0that the he possesses the thing improperly or
wrongfully#1 not from the time possession was ac%uired'
4n the absence of other facts showing the possessors 9nowledge of
defect in his title# good faith is interrupted from the receipt or serice of
judicial summons'
o Crom the serice of judicial summons# there exists an act
which the possessor 9nows that his right is not secure# that
someone disputes it# and that he may yet lose it5 and if the
court orders that restitution be made# that time determines all
the legal conse%uences of the interruption# the time when the
possession in good faith ceases to be so before the law'
o /he filing of a case alleging bad faith on the part of a endee
gies cause or cessation of good faith'
)ase doctrines
When a contract of sale is oid# the possessor is entitled to 9eep the
fruits during the period for which it held the property in good faith# which
good faith ceases when an action to recoer possession of the property
is filed against him and he is sered summons therefor' !D63 )A"
Art *)7 It is #res,me$ that #ossession contin,es to e en!oye$ in the
same character in which it was ac6,ire$+ ,ntil the contrary is #ro'en&
)ontinuity of the character of the possession
/he character or possession !good faith or bad faith" is presumed to
continue until the contrary is proed
=o one can# by his sole will nor by the mere lapse of time# change the
cause of his possession'
3resumption on the continuance of possession
/here are other presumption aside from Articles <*I and <*K affecting
possession# namely8
&' (ninterrupted possession of hereditary property !Art <--"
*' 3ossession with just title !Art <@&"
-' 3ossession of moables with real property !Art <@*"
@' .xclusie possession of common property !Art <@-"
<' )ontinuous possession !Art <@@"
H' (ninterrupted possession !Art <H&"# and
I' 3ossession during interening period !Art &&-D"
)ase doctrines
3ossession# to constitute the foundation of a prescriptie right# must be
possession under a claim of title# that is# it must be aderse' !6ogo7
Medellin )A"
An ac9nowledgment of the easement is an admission that the property
belongs to another' 4t gies the holder of the easement an incorporeal
interest on the land but grants no title thereto' !6ogo )A"
Mere material possession of land is not aderse possession as against
the owner and is insufficient to est title# unless such possession is
accompanied by the intent to possess as an owner' !6ogo )A"
Art *.9 Only things an$ rights which are s,sce#tile o" eing
a##ro#riate$ may e the o!ect o" #ossession&
?bject of possession
/o be the object of possession# the thing or right must be susceptible of
being appropriated'
/here are more things susceptible of appropriation than there are things
within the commerce of men !i'e' those that can be ac%uired by
prescription"'
o With respect to res nullius !property without owner"# they can
be possessed because theya re capable of being appropriated
but hey cannot be ac%uired by prescription which presupposes
prior ownership in another' Cor as long as a thing is res nullius#
it is not within the commerce of men'
o 3roperty of public dominion cannot also be the object of
prescription' /he same is true of common things but both may
be the object of possession'
:;APTER )
A:FCISITION O3 POSSESSION

Art& *.1& Possession is ac6,ire$ y the material occ,#ation o" a thing
or the e/ercise o" a right+ or y the "act that it is s,!ect to the action o"
o,r will+ or y the #ro#er acts an$ legal "ormalities estalishe$ "or
ac6,iring s,ch right& H4.5aI
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Ways of ac%uiring possession
/o be considered in possession# one need not hae actual or physical
occupation of a thing all times' /here are three ways of ac%uiring
possession# namely8
&' 6y the material occupation or exercise of a right5
*' 6y the subjection of the thing or right to our will5 and
-' 6y proper acts and legal formalities established for ac%uiring such
right of possession'
/he modes of ac%uiring ownership can be seen in Article I&*'
Material occupation or exercise of right
&' With respect to things 2 the law re%uires material occupation as one of
the modes of ac%uiring possession'
*' With respect to rights 2 since rights are intangible and cannot logically
be occupied# what is ac%uired is the exercise of a right' Cor example#
possession of a seritude of way# which is a right# is ac%uired by the
exercise of the right !by passing oer the serient land"
Material occupation by deliery
/he material occupation of a thing as a means of ac%uiring possession
may ta9e place by actual or constructie deliery' )onstructie deliery
includes8
1& >radicion brevi manu which ta9es place when one already in
possession of a thing by a title other than ownership continues to
possess the same under a new title# that of ownership'
)& >radicion constitutum possessorium which happens when the
owner continues in possession of the property alienated not as
owner but in some other capacity# such as that of lessee# pledgee#
or depositary'
+ubject of the action of will
/he second method of ac%uisition is so broad in scope that it practically
coers all means of ac%uiring possession'
What the law contemplates is a distinct cause of ac%uiring possession
and not merely an effect'
4t refers more to the right of possession than to possession as a fact'
.xamples of which are these 9inds of constructie deliery8
&' >radicion longa manu# which is effected by the mere consent or
agreement of the parties# as when the endor merely points to the
thing sold
*' >radicion simbolica# which is effected by deliering an object such
as a 9ey where the thing sold is stored or 9ept
3roper acts and legal formalities
/his last method of ac%uiring possession refers to ac%uisition by irtue
of a just title such as when property is transmitted by succession#
donation# contract# or execution of a public instrument# or when
possession is gien by the sheriff to the highest bidder at a public
auction# or pursuant to a writ of execution'
(nless there is a stipulation to the contrary# the execution of a sale thru
a public instrument shall be e%uialent to the deliery of the thing' 6ut
there is no deliery notwithstanding the execution of the instrument#
where the purchaser cannot hae the enjoyment and ma9e use of the
thing sold because such enjoyment and use are opposed or preented
by another'
(nder Article <-D# possession as a fact cannot be recogniGed at the
same time in two different personalities except in the cases of co7
possession
A sale with pacto de retro transfers the legal title to the endee# and in
the absence of an agreement to the contrary# carries with it the right to
the possession of the property sold'
)ase doctrines
3ossession alone is not sufficient to ac%uire title to alienable lands of
the public domain because the law re%uires possession A=D
occupation'
3ossession is broader than occupation because it includes constructie
possession' When the lad adds the word occupation# it see9s to delimit
the all encompassing effect of constructie possession' ?nes
possession must not be a mere fiction' Acutla possession of a land
consists in the manifestation of acts of dominion oer it of such a nature
as a party would naturally exercise oer his own property' !?ng
$epublic"
3ossession cannot be ac%uired through force or iolence' /o all intents
and purposes# a possessor# een if physically ousted# is still deemed the
legal possessor' !)e%uena 6olante"

Art& *.)& Possession may e ac6,ire$ y the same #erson who is to
en!oy it+ y his legal re#resentati'e+ y his agent+ or y any #erson
witho,t any #ower whate'er% ,t in the last case+ the #ossession shall
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not e consi$ere$ as ac6,ire$ ,ntil the #erson in whose name the act
o" #ossession was e/ec,te$ has rati"ie$ the same+ witho,t #re!,$ice to
the !,ri$ical conse6,ences o" negotior,m gestio in a #ro#er case&
H4.7aI
6y whom possession ac%uired
3ossession may be ac%uired8
&' 3ersonally or by the same person who is to enjoy it5
*' /hru an authoriGed person or by his legal representatie or by his
agent# and
-' /hru an unauthoriGed person or by any person without any power
or authority whateer'
Ac%uisition of possession through another
3ossession ac%uired by a person personally or thru another may be
exercised by him in his own name or in that of another' 6ut minors and
other incapacitated persons need the assistance of their legal
representaties to exercise the rights arising from possession'
4f a person authoriGed to ac%uired possession for another acted beyond
his powers# the principal is not bound unless the latter ratifies the act of
ac%uisition'
/he exception is when a person oluntarily manages the property or
business of another' 4n such case# the strangers !gestors" possession
ta9es effect een without ratification by the owner of the property or
business'
)ase doctrines
Art& *..& The #ossession o" here$itary #ro#erty is $eeme$ transmitte$
to the heir witho,t interr,#tion an$ "rom the moment o" the $eath o"
the $ece$ent+ in case the inheritance is acce#te$&
One who 'ali$ly reno,nces an inheritance is $eeme$ ne'er to
ha'e #ossesse$ the same& H449I
Ac%uisition of possession through succession
/he rights to the succession are transmitted from the moment of the
death of the decedent'
Crom that moment# each of his heirs becomes the undiided owner of
the whole estate left with respect to that portion which might be
adjudicated to him'
/he inheritance may be accepted or repudiated'
/here is no doubt that an heir can sell whateer right# interest or
participation he may hae in the property under administration# subject
to the result of said administration'
4n case the inheritance is accepted# the possession of the hereditary
property is deemed transmitted by operation of law to the heir without
interruption and from the moment of death of the decedent'
4n this inheritance is alidly renounced# the heir is deemed neer to
hae possessed the same'
+ee boo9 for examples'
Art& *.4& On who s,ccee$s y here$itary title shall not s,""er the
conse6,ences o" the wrong",l #ossession o" the $ece$ent+ i" it is not
shown that he was aware o" the "laws a""ecting it( ,t the e""ects o"
#ossession in goo$ "aith shall not ene"it him e/ce#t "rom the $ate o"
the $eath o" the $ece$ent& H44)I
.ffects of bad faith of decedent on heir
4f the decedent was in bad faith# the heir shall not suffer the
conse%uences of the wrongful possession of the latter because bad
faith is personal to the decedent and is not deemed transmitted to the
heirs'
/he heir suffers the conse%uences of such possession only from the
moment he becomes aware of the flaws affecting the decedents title'
+ee boo9 again for examples'
)ase doctrines
A possessor in bad faith should not prejudice his successors7in7interest'
6ad faith is personal and intransmissible' !.scritor 4A)"
Art& *.*& Minors an$ inca#acitate$ #ersons may ac6,ire the
#ossession o" things( ,t they nee$ the assistance o" their legal
re#resentati'es in or$er to e/ercise the rights which "rom the
#ossession arise in their "a'or& H44.I
Ac%uisition and exercise of rights of possession by minors and incapacitated
persons
/he persons referred to in the proision are unemancipated minors and
other persons who hae no capacity to act li9e spendthrifts# deaf7mutes
who cannot read and write# those under ciil interdiction# etc'
/hings here are limited to corporeal things only'
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/his article refers principally but not exclusiely to material occupation'
4ncapacitated persons may ac%uire property or rights by prescription
either personally or through their parents# guardians or legal reps' ?nce
possession of a thing is ac%uired by such persons# there is born the
right of possession' 4n the exercise of this right# they need the
assistance of their legal reps'
Art& *.0& In no case may #ossession e ac6,ire$ thro,gh "orce or
intimi$ation as long as there is a #ossessor who o!ects thereto& ;e
who elie'es that he has an action or a right to $e#ri'e another o" the
hol$ing o" a thing+ m,st in'o-e the ai$ o" the com#etent co,rt+ i" the
hol$er sho,l$ re",se to $eli'er the thing& H441aI
$ecourse to the courts
.ery possessor has a right to be respected in his possession' /he
lawful possessor may use such force as may be reasonably necessary
to repel or preent inasion or usurpation of his property'
/his article applies to one who beliees himself the owner of real
property' 4f he ta9es justice into his own hands# he is a mere intruder5
and he can be compelled to return the property in an action for forcible
entry and must suffer the necessary and natural conse%uences of his
lawlessness'
A party who can proe prior possession# whateer may be the character
of the possession# has the security that entitles him to recoer such
possession or to remain on the property een against the owner himself
until he is lawfully ejected by accion publiciana or accion reivindicatoria/
Art& *.2& Acts merely tolerate$+ an$ those e/ec,te$ clan$estinely an$
witho,t the -nowle$ge o" the #ossessor o" a thing+ or y 'iolence+ $o
not a""ect #ossession& H444I
Acts which do not gie rise to possession
/he acts mentioned do not affect possession# i'e' the person in
possession does not lose the same nor does the person who results to
them ac%uire it' 4n other words# the true possessor is deemed to hae
enjoyed uninterrupted possession'
o Corce or intimidation 2 as long as there is a possessor who
objects thereto# such as by suit of forcible entry' /he rule does
not apply if the possessor ma9es no objection# withdraws his
objection or ta9es no action whatsoeer after initially objecting
to the depriation'
o Acts executed clandestinely and without the 9nowledge of the
possessor 2 which mean that the acts are not public and
un9nown to the possessor or owner'
o Acts merely tolerated 2 which do not refer to all 9inds of
tolerance on the part of the owner or possessor in iew of the
use of the word Bmerely5 it means permission# express or tacit#
by irtue of which the acts of possession are performed'
Eence# it is simply a %uestion of whether permission was gien
or not'
3ossession of another by mere tolerance is not aderse and no matter
how long continued# cannot ripen to ownership by prescription'
/he mere silence or failure to ta9e any action will not be construed as
abandonment of rights on the part of the real possessor' 4t is# of course#
for the courts to decide whether there has been an abandonment or not'
3ossession by tolerance is lawful but becomes illegal when# upon
demand to acate by the legal owner# the possessor refuses to comply
with such demand'
Art& *.5& Possession as a "act cannot e recogni4e$ at the same time in
two $i""erent #ersonalities e/ce#t in the cases o" co1#ossession&
Sho,l$ a 6,estion arise regar$ing the "act o" #ossession+ the #resent
#ossessor shall e #re"erre$( i" there are two #ossessors+ the one
longer in #ossession( i" the $ates o" the #ossession are the same+ the
one who #resents a title( an$ i" all these con$itions are e6,al+ the thing
shall e #lace$ in !,$icial $e#osit #en$ing $etermination o" its
#ossession or ownershi# thro,gh #ro#er #rocee$ings& H44*I
3ossession as a fact at the same time in two different personsalities
/he word 0personalities1 is not synonymous to 0persons'1 Cor example#
in co7ownership# there are two or more persons# but there is only one
personality'
3ossession as a fact may exist at the same time in two or more distinct
personalities# but as a general rule# the law will recogniGe only one as
the actual or real possessor'
/he exception is proided in the cases of co7possession# such as co7
ownership# where the property is possessed at the same time in
common by the co7owners also5 and possession where the property is
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possessed at the same time by two persons# one in the concept of
owner and the other# in the concept of holder'
4n co7possession# there is no conflict of interests of claims among the
parties'
3reference of possession
Article <-D applies whether the property is real or personal' 4n case a
dispute arises regarding the fact of possession# the order of preference
is as follows8
&' /he present or actual possessor shall be preferred
*' 4f there are two possessors# the longer in possession5
-' 4f the dates of possession are the same# the possessor with a title5
i'e' right or document eidencing his right to support his
possession5 and
@' 4f all the aboe are e%ual# the fact of possession shall be judicially
determined# and in the meantime# the thing shall be placed in
judicial deposit'
:;APTER .
E33E:TS O3 POSSESSION
Art *.7 E'ery #ossessor has a right to e res#ecte$ in his #ossession
an$ sho,l$ he e $ist,re$ therein he shall e #rotecte$ in or restore$
to sai$ #ossession y the means estalishe$ y the laws an$ the R,les
o" :o,rt&
A #ossessor $e#ri'e$ o" his #ossession thro,gh "orcile entry
may within ten $ays "rom the "iling o" the com#laint #resent a motion
to sec,re "rom the com#etent co,rt+ in the action "or "orcile entry+ a
writ o" #reliminary man$atory in!,nction to restore him in his
#ossession& The co,rt shall $eci$e the motion within thirty $ays "rom
the "iling thereo"&
$ights of eery possessor
.ery possessor# whether in the concept of owner of in the concept of
holder# is gien the following rights8
&' $ight to be respected in his possession5
*' $ight to be protected in or restored to said possession by legal means
should he be disturbed therein5 and
-' $ight to secure from a competent court in an action for forcible entry the
proper writ to restore him in his possession !Art @*D"
/he mere possession of a thing is sufficient to insure respect to the
possessor while no other person appears to show and proe a better
right'
/o all intents and purposes# a possessor een if physically ousted as
through force and iolence# is still deemed the legal possessor'
/he fact# howeer# that a person was neer in prior physical possession of a
land is of no moment where he has a /orrens /itle oer the property as prior
physical possession is necessary only in forcible entry cases'
$easons for protection
&' /o aid criminal law !by presering the peace' ?rder is best secured by
protecting a possessor and leaing the true owner to see9 his remedy in
a court of law"
*' As part of the law of tort !these rights of action are gien in respect of
the immediate and present iolation of the rights of the possessor
independently of his rights of property"
-' As part of the law of property !law does not always 9nown that the
possession in %uestion is unlawful' 4t would be unjust to cast on eery
man whose possession is disturbed the burden of proing a flawless
title"
$emedies of persons depried of possession !see discussions in Art @*D"
&' forcible entry or unlawful detainer
*' accion publiciana
-' accion reiindicatoria
@' replein or manual deliery of personal property
4n forcible entry and unlawful detainer cases# subject to some
exceptions# the immediate execution of the judgment in faor of the
plaintiff is a matter of right and mandatory'
)onsidering that the only issue in ejectment is that of rightful
possession# damages that could be recoered are those which the
plaintiff could hae sustained as a mere possessor# or those caused by
the loss of the use and occupation of the property# and not the damages
which he may hae suffered but which hae no direct relation to his loss
of material possession'
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4ssuance of a writ of preliminary mandatory injunction
4n forcible entry actions# the plaintiff must present within ten days from
the filing of the complaint a motion to secure from the competent court#
a writ of preliminary mandatory injunction to restore him in his
possession
4n unlawful detainer cases where an appeal is ta9en# the motion shall be
filed within ten days from the time the appeal is perfected# if the high
court is satisfied that the lessees appeal is friolous or dilatory# or the
lessors appeal is prima facie meritorious'
4n an appeal from a lower court in an ejectment case# the issue of
ownership should not be deled into# for an ejectment action lies een
against the owner of a property'
3rior peaceful possession of plaintiff re%uired in forcible entry action
Where a dispute oer possession arises between two persons# the
person first haing actual possession# as between them# is the one who
is entitled to maintain the action for forcible entry'
/he main issue is possession de %acto# independently of any claim of
ownership or possession de jure that either party may set forth in his
pleadings# and an appeal does not operate to change the nature of the
original action
.en a mere applicant of public land who is in occupation and in
peaceful possession thereof can file an action for forcible entry
,uestion of ownership is unessential and should be raised by the
defendant in an appropriate action
o Audgment rendered in an action for forcible entry shall not bar
an action between the same parties respecting the title to the
land or building
o /he court has competence to resole the issue of ownership
but only to determine the issue of priority of possession# as its
decision does not bind the title or affect the ownership of the
property inoled !any pronouncement on ownership is
proisional"
/he purpose of the law is to protect the person who has actual
possession
/he plaintiff in an action for forcible entry and detainer cannot succeed
when it appears that# as between himself and the defendant# the latter
had possession antedating his own5 and to ascertain this# it is proper to
loo9 on to the situation as it existed before the first act of spoliation
occurred
:egal right of prior possessor is not an issue
o 4f the plaintiff can proe prior possession# he may recoer
possession een against the owner himself'
o 4f he cant proe prior possession# he has no right of action
een if he should be the owner himself'
4n case of controerted right# the law re%uires the parties to presere the
status %uo until one or the other of them sees fit to ino9e the decision
of a court upon the %uestion of possession andLor possession
A forcible entry or unlawful detainer is not suspended# abated# barred or
affected by actions filed in the $/) which do not inole physical or de
%acto possession
)onditions under which action for forcible entry will lie
Wrongful entrance by one not in possession
o /he trespasser does not hae to institute a state of war' /he
act of going on the property and excluding the lawful possessor
therefrom necessarily implies the exertion of force oer the
property# and this is all that is necessary' (nder the law#
entering upon the premises by strategy or stealth is e%ually as
obnoxious as entering by force'
o /he words 0by force# intimidation# threat# etc1 include eery
situation or condition under which one person can wrongfully
enter upon real property to exclude another# who has prior
possession therefrom' !6anes case"
Wrongful exclusion of prior possessor
o /he foundation of the action is really the forcible exclusion of
the original possessor by a person who has entered without
right'
Art *49 Only the #ossession ac6,ire$ an$ en!oye$ in the conce#t o"
owner can ser'e as a title "or ac6,iring $ominion&
3ossession as basis for ac%uiring ownership
3ossession ac%uired and enjoyed in the concept of owner may ripen into
ownership by means of prescription'
&' As holder
)annot be the basis of prescription
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+o with possession ac%uired through force or intimidation !Art <-H"#
merely tolerated or which is not public and is un9nown to the
present possessor !Art <-I"
*' As e%uitable mortgage
)onstructie possession oer the land cannot ripen into ownership
as it cannot be said to hae been ac%uired and enjoyed in the
concept of owner
-' As claimant under a possessory information title !meh"
@' As claimant under a certificate of title
Mere possession cannot defeat the title of a holder of a registered
/orrens title to real property
6ut the true owner of the property may be defeated by an innocent
purchaser for alue notwithstanding the fraud employed by the
seller !forger" in securing his title
Generally# a forged deed is a nullity and coneys no title' Eoweer#
there are instances when such a document may become the root of
a alid title' As when the certificate of title was already transferred
from the name of the true owner to the forger# and while it remained
that way# the land was subse%uently sold to an innocent purchaser
for alue !land titles>"
<' As possessor of forest land !not possible>"
Mere tax declarations of ownership do not est or proe ownership of
the property in the declarant nor are een sufficient to sustain a claim
for possession oer a land# in the absence of actual possession of the
same'
/hey are merely an indicum of a claim of ownership
=eertheless# they are good indicia of possession in the concept of
owner
3ayment of realty tax coupled with actual possession in the concept of
owner is one of the most persuasie and positie indicia# which shows
the will or desire of a person to possess with claim of ownership or to
obtain title to the land or property
)ase doctrine
4n order than an action for recoery of possession may prosper# it is
indispensable that he who brings the action fully proes not only his
ownership but also the identity of the property claimed# by describing
the location# area and boundaries thereof' 4nsufficient identification of
the portion of land claimed in absolute ownership cannot ripen into
ownership' !+erina )aballero"
Art *41 A #ossessor in the conce#t o" owner has in his "a'or the legal
#res,m#tion that he #ossesses with a !,st title an$ he cannot e
olige$ to show or #ro'e it&
3ossessor in concept of owner presumed with just title
Just title does not always mean a document or a written instrument
>itle is that upon which ownership is based
Actual or constructie possession under claim of ownership raises the
disputable presumption of ownership' 4n other words# a possession is
presumed ownership until the contrary is shown'
A possessor is presumed to hae a just title# and he cannot be obliged
to show or proe it'
o $eason? /o protect the owner from inconenience# otherwise#
he will always hae to carry his titles under his arms to show
them to whoeer who wants to see it
=68 3resumption of just title does not apply in ac%uisitie prescription'
Aderse possessor must proe his just title'
6urden of proing just title
/he onus probandi is on the plaintiff who see9s the recoery of property
A person who is not# in fact# in possession cannot ac%uire a prescriptie
right to a land by the mere assertion of a right therein' Where the
possessor is really the owner# the fact that a third person %uestions his
right does not impair said right'
An owner and possessor whose title is true and alid cannot be re%uired
to show that his possession is or has been aderse as against a new
claimant who has neither title nor possession'
What are the different 9inds of title?
&' >itulo verdadero y valido or true and alid
/his is the title presumed in this proision
+ufficient to transfer ownership without need of possessing the
property for the period necessary for ac%uiring title by prescription
*' >itulo justo or just title
Cor the purposes of prescription# there is just titleJ
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o When the aderse claimant came into possession of the
property through one of the modes recogniGed by law for the
ac%uisition of ownership or other real rights#
o but the grantor was not the owner or could not transmit any
right
Cor prescription# just title must be proed# it is neer presumed'
4t must be remembered that the burden of proing the status of a
purchaser in good faith lies upon him who asserts that status' 4t is
not sufficient to ino9e the ordinary presumption of good faith# that
is# that eeryone is presumed to hae acted in good faith# since the
good faith that is here essential is integral with the ery status that
must be established' !Aguirre )A"
-' >itulo colorado or colorable title
?ne which a person has when he buys a thing in good faith# from
one who is not the owner but whom he beliees to be the owner
/he just title re%uired for ac%uisitie prescription is titulo Colorado
@' >itulo putativo or putatie title
?ne which a person beliees he has title but in fact he has not
because there was no mode of ac%uiring ownership
As when one is in possession of a thing in the mista9en belief that it
had been be%ueathed to him
3hats the di%%erence between titulo Colorado and titulo verdadero y valido9
4n Colorado, there is a need for prescription to transfer ownership' 4n true
and alid title# there is no need for prescription# ownership is transferred
once the mode of transfer has been perfected' !6e it by sale# donation#
succession# etc"'
)ase doctrine
4n order that a co7owners possession may be deemed aderse to the
cestui =ue trusti or the other co7owners# the following elements must
concur8
&' /hat he has perfomrmed une%uiocal acts of repudiation amounting
to an ouster of the beneficiary or the other co7owners
*' /hat such positie acts of repudiation hae been made 9nown to
the beneficiary or the other co7owners
-' /hat the eidence thereon must be clear and conincing !Aguirre
)A"
Art *4) The #ossession o" real #ro#erty #res,mes that o" mo'ales
therein+ so long as it is not shown or #ro'e$ that they sho,l$ e
e/cl,$e$&
3ossession of real property presumed to include moables
Article <@* refers to material possession only of things# not rights
3ossession may be in the concept of owner# of holder# in ones own
name or in anothers# or in good faith or in bad faith
4t is normal that moables which are found in an immoable belong to
the possessor of the latter
4f the building is occupied by the lessee# we can suppose the same with
respect to him because in this case# the possessor is the lessee
Again# this is a mere presumption'
Art *4. Each one o" the #artici#ants o" a thing #ossesse$ in common
shall e $eeme$ to ha'e e/cl,si'ely #ossesse$ the #art which may e
allotte$ to him ,#on the $i'ision thereo"+ "or the entire #erio$ $,ring
which the co1#ossession laste$& Interr,#tion in the #ossession o" the
whole or a #art o" a thing #ossesse$ in common shall e to the
#re!,$ice o" all the #ossessors& ;owe'er+ in case o" ci'il interr,#tion+
the R,les o" :o,rt shall a##ly&
.xclusie possession of preious co7owner deemed continuous
Article <@- spea9s of co7possession of a thing# not of co7ownership
=eertheless# its principle is applicable to co7possession of a real right
)o7possession can be oer a thing or a right
All participants of a thing possessed in common constitute only one
personality and the personality ceases when there is a partition'
Crom that moment of cessation# the personality of each participant
begins'
.ach co7possessor is deemed !not merely presumed>" to hae
possessed exclusiely and continuously during the period of co7
possession the part assigned to him in the diision'
/he effects of the diision retroact to the commencement of the co7
possession'
6ut the diision shall be without prejudice to the rights of creditors'
Earry# $on# and Eermione hae been co7possessors in the concept of
owners of a &< hectare parcel of land until they diided the property e%ually
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on the D
th
year' 4f on the @
th
year after the diision# Draco claims ownership of
the portion allotted to Earry# Earry can assert title by ac%uisitie prescription
through possession for &; years# for he is deemed to hae possessed his
portion exclusiely and continuously for a period of &* years'
4nterruption in possession of the thing
6oth the benefits and the prejudices that might hae ta9en place during
the co7possession shall attach to each of the co7participants
3rescription obtained by a co7possessor shall benefit the others
4nterruption in the possession of the whole or part of a thing shall be to
the prejudice of all the possessors'
3ossession is interrupted for purposes of prescription either
o =aturally !when through any cause it should cease for more
than & year"
o )iilly !when the interruption is produced by judicial summons
to the possessor"
4n ciil interruption# only those possessors sered with
judicial summons are affected'
Cor ciil interruption to ta9e place# the possessor must
hae receied judicial summons'
When will summons not be deemed to hae been
issued and shall not gie rise to interruption?
&' 4f it should be oid for lac9 of legal solemnities# or
*' 4f the plaintiff should desist from the complaint or
should all the proceedings to lapse# or
-' 4f the possessor should be absoled from the
complaint'
A notice for aderse claim does =?/ interrupt
prescription !Eeirs of ArGadon7)risologo $anon"
4nterruption must refer to the whole thing itself or part of it and not to a
part or right of a co7possessor'
4n a co7possession# there is only one thing and many possessors' 4f the
right of a co7possessor is contested# he alone shall be prejudiced'
With respect to the thing# the prejudice shall be against all'
Art *44 A #ossessor in goo$ "aith is entitle$ to the "r,its recei'e$
e"ore the #ossession is legally interr,#te$&
Nat,ral an$ in$,strial "r,its are consi$ere$ recei'e$ "rom the
time they are gathere$ or se'ere$&
:i'il "r,its are $eeme$ to accr,e $aily an$ elong to the
#ossessor in goo$ "aith in that #ro#ortion&
Art *4* I" at the time the goo$ "aith ceases+ there sho,l$ e any nat,ral
or in$,strial "r,its+ the #ossessor shall ha'e a right to a #art o" the
e/#enses o" c,lti'ation+ an$ to a #art o" the net har'est+ oth in
#ro#ortion to the time o" #ossession&
The charges shall e $i'i$e$ on the same asis y the two
#ossessors&
The owner o" the thing may+ sho,l$ he so $esire+ gi'e the
#ossessor in goo$ "aith the right to "inish the c,lti'ation an$ gathering
o" the growing "r,its+ as an in$emnity "or his #art o" the e/#enses o"
c,lti'ation an$ the net #rocee$s( the #ossessor in goo$ "aith who "or
any reason whate'er sho,l$ re",se to acce#t this concession+ shall
lose the right to e in$emni"ie$ in any other manner&
/he fruits of a thing generally belong to the owner !Art @@&" but a
possessor in good faith is entitled to the fruits receied until good faith
ceases and bad faith begins'
:egal interruption of possession in good faith ta9es place upon serice
of judicial summons to the possessor'
o All fruits that the possessor may receie from the time that he
is summoned# or when he answers the complaint# must be
deliered or paid by him to the owner or lawful possessor'
Wheneer there is cessation of good faith in the eyes of the law#
whether by reason of the filing of a complaint or not# possession in good
faith should be deemed legally interrupted from such cessation and not
merely from the serice of judicial summons'
When the owner or possessor with a better right comes along# when he
becomes aware that what he had ta9en for granted is at least doubtful#
and when he learns the grounds in support of the aderse claim# good
faith ceases'
3ossessor in bad faith is not entitled to the fruits' Ee has the duty to
reimburse the fruits receied including that which the legitimate
possessor could hae receied'
/he right of the possessor in good faith is limited to the fruits# referring
to natural# industrial and ciil fruits !Art @@&"' ?ther things !building"
belong to the owner of the land'
When fruits considered receied
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&' Cor natural and industrial fruits 2 from the time they are gathered or
seered' Cruits gathered before legal interruption belong to the
possessor in good faith'
*' Cor ciil fruits 2 their accrual# not their actual receipt# shall determine
when they are considered receied at the time the good faith is legally
interrupted' /hey are deemed to accrue daily and belong to the
possessor in good faith in that proportion'
Ninds of Cruits 3ossessor in Good
Caith
3ossessor in 6ad Caith
&' )iil fruits .ntitled to fruits from
start of possession
until legal interruption
=ot entitled to fruits'
Must pay damages as
rental from time
possession started until
possession is finally
defeated
*' =aturalL4ndustrial
Cruits
a' Gathered
b' 3ending
$ight to retain fruits
?wner has * options8
Cirst8 3ro7rating
Must account for fruits
and return alue of8
fruits actually receied#
and fruits which the
legal possessor could
hae receied with due
care and diligence'
Must pay damages as
reasonable rent for the
term of possession'
6ut entitled to
necessary expenses
for preseration#
cultiation# and
gathering of fruits'
=o rights# not een
reimbursement of
!based on period of
possession" between
possessor and owner
of8 expenses# net
harest and charges
+econd8 /o allow
possessor to stay in
possession until after
all fruits are gathered
!which shall sere as
the indemnity for
expenses"
expenses for cultiation
!because by right of
accession# all fruits
belong to owner
without need to pay
indemnity"
Must pay damages as
reasonable rent for the
term of possession
3roportionate diision of fruits and expenses
Art <@< does not apply when the possessor is in bad faith# the fruits are
ciil# or the fruits are natural or industrial but they hae been gathered or
seered when good faith ceases
A possessor in bad faith has no right whatsoeer to the fruits# gathered
or pending# except only necessary expenses for gathered fruit !Art @@-#
@@K"' +ince ciil fruits are produced day by day# Art <@< does not apply
to them'
4n the case of fruits already gathered at the time good faith ceases# it is
Art <@@ that is applicable'
4f there are pending natural and industrial fruits at the time good faith
ceases# the two possessors shall share in the expense of cultiation and
the charges !expenses made not on the property itself but on account of
it# such as taxes# interest on mortgages" in proportion to the time of
possession'
/hey will also share on the fruits in proportion to the time of possession
as well'
What if there are no fruits or the fruits are less than expenses?
o 4f there is no net harest because there are no fruits or the
fruits are less than the expenses# art <@< wont apply' 4f the
fruits are merely insufficient# the same should be diided in
proportion to their respectie expenses'
o =o fruits? .ach should bear his own expenses subject to the
right of the possessor in good faith to be refunded for
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necessary expenses under Art <@H# unless the owner of new
possessor exercises his option referred to aboe'
Art *40 Necessary e/#enses shall e re",n$e$ to e'ery #ossessor( ,t
only the #ossessor in goo$ "aith may retain the thing ,ntil he has
reim,rse$ there"ore&
Cse",l e/#enses shall e re",n$e$ only to the #ossessor in
goo$ "aith with the same retention+ the #erson who has $e"eate$ him in
the #ossession ha'ing the o#tion o" re",n$ing the amo,nt o" the
e/#enses or o" #aying the increase in 'al,e which the thing may ha'e
ac6,ire$ y reason thereo"&
Art *42 I" the ,se",l im#ro'ements can e remo'e$ witho,t $amage to
the #rinci#al thing+ the #ossessor in goo$ "aith may remo'e them+
,nless the #erson who reco'ers the #ossession e/ercises the o#tion
,n$er #aragra#h ) o" the #rece$ing article&
Art *45 E/#enses "or #,re l,/,ry or mere #leas,re shall not e
re",n$e$ to the #ossessor in goo$ "aith( ,t he may remo'e the
ornaments with which he has emellishe$ the #rinci#al thing i" it
s,""ers no in!,ry therey+ an$ i" his s,ccessor in the #ossession $oes
not #re"er to re",n$ the amo,nt e/#en$e$&
Art *47 The #ossessor in a$ "aith shall reim,rse the "r,its recei'e$
an$ those which the legitimate #ossessor co,l$ ha'e recei'e$+ an$
shall ha'e a right only to the e/#enses mentione$ in #aragra#h 1 o"
Article *40 an$ in Article 44.& The e/#enses inc,rre$ in im#ro'ements
"or #,re l,/,ry or mere #leas,re shall not e re",n$e$ to the
#ossessor in a$ "aith+ ,t he may remo'e the o!ects "or which s,ch
e/#enses ha'e een inc,rre$+ #ro'i$e$ that the thing s,""ers no in!,ry
therey+ an$ that the law",l #ossessor $oes not #re"er to retain them
y #aying the 'al,e they may ha'e at the time he enters into
#ossession&
.xpenses 3ossessor in Good
Caith
3ossessor in 6ad Caith
=ecessary .xpenses .ntitled to
reimbursement
$ight of retention
pending full
reimbursements
.ntitled to
reimbursement
=o right of retention5
must acate property
!recourse is to file
collection case"
:iable for damages as
reasonable rent for
period of possession
(seful expenses ?wner has * options8
?ption &8
reimbursement of
either !a" amount spent
or !b" increase in alue
with right of retention
with full payment'
?ption *8 /o allow
possessor to remoe
proided no substantial
damage or injury is
caused
=o rights
:uxurious expenses ?wner has * options8
?ption &8 to allow
possessor to remoe
ornaments if the
principal suffers no
injury
?ption *8 to retain the
ornament by refunding
the amount spent for
the ornament
?wner has * options8
?ption &8 to allow
possessor to remoe
ornaments if the
principal suffers no
injury
?ption *8 to retain the
ornament by refunding
the alue of the
ornament at the time
owner enters into
possession !which
means depreciated
alue"
DeteriorationLloss =o liability unless due
to fraudulent intent or
negligence after
serice of judicial
summons
Always liable whether
before or after serice
of judicial summons#
for any cause# een
fortuitous eent
!ensurer of the
property"'
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=ecessary expenses are made for the preseration of the thing of those
which see9 to preent the waste# deterioration# or loss of the thing5 or
those without which the thing would deteriorate or be lost'
(seful expenses are expenses which add alue to a thing# or augment
its income'
:uxurious expenses are expenses not necessary for the preseration of
a thing nor do they increase its productiity although they add alue to
the thing# but are incurred merely to embellish the thing and for the
conenience or enjoyment of particular possessors'
)ase doctrine
A possessor in bad faith is entitled to be reimbursed for her expenses in
restoring a house to its original condition after it had been partly
damaged by fire# because such expenses are necessary# and under
<@H# are to be refunded een to possessors in bad faith'
A builder in bad faith# under @@K# is not entitled to reimbursement' 6ut
@@K is a rule of accession# which is not applicable where a new house
was not built on the land of another but only repairs were made on a
house that had been partly destroyed by fire' /his latter case comes
under <@H which proides for the refund of necessary expenses to eery
possessor' !)osio 3alileo"
Art& **9& The costs o" litigation o'er the #ro#erty shall e orne y
e'ery #ossessor& HnI
Art& **1& Im#ro'ements ca,se$ y nat,re or time shall always ins,re to
the ene"it o" the #erson who has s,ccee$e$ in reco'ering
#ossession& H4*0I
4mproements caused by nature or time
Article <<& coers all the natural accessions mentioned in Articles @<I
to @H< which must follow the ownership of the principal thing# and
generally# all improements that are not due to the will of the possessor'
/he former possessor got the benefits from the property during his
possession' 4t is but just that the improements mentioned which ta9e
place after the possession is recoered inure to the owner or lawful
possessor' Eence# he should not pay for them'
Art& **)& A #ossessor in goo$ "aith shall not e liale "or the
$eterioration or loss o" the thing #ossesse$+ e/ce#t in cases in which it
is #ro'e$ that he has acte$ with "ra,$,lent intent or negligence+ a"ter
the !,$icial s,mmons&
A #ossessor in a$ "aith shall e liale "or $eterioration or loss
in e'ery case+ e'en i" ca,se$ y a "ort,ito,s e'ent& H4*2aI
Art& **.& One who reco'ers #ossession shall not e olige$ to #ay "or
im#ro'ements which ha'e cease$ to e/ist at the time he ta-es
#ossession o" the thing& H4*5I
4mproements which hae ceased to exist
/he improements referred to were enjoyed by the possessor alone'
Eaing ceased to exist# the owner or lawful possessor who came too
late cannot benefit from them' 6ut he is liable for necessary expenses
een if the thing for which they were incurred no longer exists'
=ecessary expenses are not considered improements'
Art& **4& A #resent #ossessor who shows his #ossession at some
#re'io,s time+ is #res,me$ to ha'e hel$ #ossession also $,ring the
interme$iate #erio$+ in the asence o" #roo" to the contrary& H4*7I
3resumption of possession during interening period
/his article contemplates a situation where a present possessor is able
to proe his possession of a property at a prior period but not his
possession during the interening period'
Ee is presumed to hae possessed the property continuously without
interruption# unless the contrary is proed'
/he presumption is useful for purposes of prescription'
Art& ***& A #ossessor may lose his #ossession%
1& =y the aan$onment o" the thing(
)& =y an assignment ma$e to another either y onero,s or
grat,ito,s title(
.& =y the $estr,ction or total loss o" the thing+ or eca,se it goes
o,t o" commerce(
4& =y the #ossession o" another+ s,!ect to the #ro'isions o"
Article *.2+ i" the new #ossession has laste$ longer than one
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year& =,t the real right o" #ossession is not lost till a"ter the
la#se o" ten years& H409aI
Modes of losing possession
/his proision applies to both real and personal property except no' @
which obiously refers only to personal property !obvious raw eh, sabi
ni de ?eon/ -abang naman niya"/ /he next article is expressly made
applicable only to moables'
What is abandonment?
Abandonment is the oluntary renunciation of all rights which a person
has oer a thing thereby allowing a third person to ac%uire ownership or
possession thereof by means of occupancy'
/he abandoner may be the owner or a mere possessor but the latter
obiously cannot abandon ownership which belongs to another'
!obviously raw;"
+ince abandonment inoles the renunciation of a property right# the
abandoner must hae a right to the thing possessed and the legal
capacity to renounce it'
An owner of property cannot be held to hae abandoned the same until
at least he has some 9nowledge of the loss of its possession or of the
thing# and a thing cannot be considered abandoned under the law until
the spes recuperandi !hope of recoery" is gone and the animus
revertendi !intention to return" is finally gien up'
6y oluntary abandonment# a thing becomes without a owner or
possessor and is conerted into res nullius and may thus be ac%uired by
a third person by occupation'
Abandonment which conerts the thing into res nullius can hardly apply
to land'
)astellano Crancisco stated that abandonment re%uires8
&' A clear and absolute intention to renounce a right or a claim or to
abandon a right or property# and
*' An external act by which that intention is expressed or carried into
effect'
/he intention to abandon implies a departure# with the aowed intent of
neer returning# resuming or claiming the right and the interest that hae
been abandoned' !)astellano Crancisco"
Assignment?
Assignment is understood to mean the complete transmission of the
thing or right to another by any lawful manner'
4t may be onerous or by gratuitous title'
/he effect is that he who was the owner or possessor is no longer so'
Abandonment is always gratuitous'
Destruction# total loss# or withdrawal from commerce
Destruction or total loss coers not only that which is caused oluntarily
or intentionally but also that which is caused by accident'
A thing is lost when it perishes# or goes out of commerce# or disappears#
etc' !Art &&DK"
3ossession of another for more than one year
/his refers to possession de %acto !as a fact or material possession" and
not de jure !legal right or real right of possession"
After one year# the former possessor can no longer bring any action for
forcible entry or unlawful detainer'
3ossession by mere tolerance een for oer a year does not affect
possession de %acto'
After &; years# the possessor or owner may bring an accion publiciana
or reivindicatoria to recoer possession de jure unless he is barred by
prescription'
$ecoery by lawful owner or possessor
3ossession may also be lost when it is recoered from the person in
possession by the lawful owner in a reiindicatory action or by the lawful
possessor in an action to recoer the better right of possession'
Art& **0& The #ossession o" mo'ales is not $eeme$ lost so long as
they remain ,n$er the control o" the #ossessor+ e'en tho,gh "or the
time eing he may not -now their whereao,ts& H401I
:oss of possession of moables
/he possession of moables shall be deemed lost when they cease to
be under the control of the possessor either becaue8
o /hey hae come into the possession of a third person5 or
o Although# they hae not been ta9en by another#
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/he possessor has completely no idea of their
whereabouts or location !the pet rat has been missing
for sometime5 or
.en if 9nown# they cannot be recoered# whether as
a matter of fact !an unopened box of pastillas has
been dropped in a deep la9e" or of law !a moable
lost by prescription"'
3ossession is not lost by the mere fact that the possessor does not
9now for the time being the precise whereabout of a specific moable
when he has not gien up all hope of finding it !li9e a ring misplaced or
lost in particular icinity"' 4n this case# the possessor has not lost his
legal right to the object'
o Ee retains his juridical control of the thing which remains in his
patrimony'
Art& **2& The #ossession o" immo'ales an$ o" real rights is not
$eeme$ lost+ or trans"erre$ "or #,r#oses o" #rescri#tion to the
#re!,$ice o" thir$ #ersons+ e/ce#t in accor$ance with the #ro'isions o"
the Mortgage Law an$ the Lan$ Registration laws& H40)aI
:oss of possession of immoables and real rights with respect to third
persons
/hird persons are not prejudiced except in accordance with the
proisions of the mortgage law and the registration law'
Against a recorded title# ordinary prescription of ownership or real rights
shall not ta9e place to the prejudice of a third person# except in irtue of
another title also recorded and the time shall begin to run from the
recording of the latter'
Art& **5& Acts relating to #ossession+ e/ec,te$ or agree$ to y one who
#ossesses a thing elonging to another as a mere hol$er to en!oy or
-ee# it+ in any character+ $o not in$ or #re!,$ice the owner+ ,nless he
ga'e sai$ hol$er e/#ress a,thority to $o s,ch acts+ or rati"ies them
s,se6,ently& H40.I
3ossessory acts of a mere holder
/he possessor referred to in this article is the same possessor
mentioned in Article <*<'
Acts relating to possession of a mere holder do not bind or prejudice the
possessor in the concept of owner unless said acts were preiously
authoriGed or subse%uently ratified by the latter'
3ossession may be ac%uired for another by a stranger proided there
be subse%uent ratification' !Art <-*"
Art& **7& The #ossession o" mo'ale #ro#erty ac6,ire$ in goo$ "aith is
e6,i'alent to a title& Ne'ertheless+ one who has lost any mo'ale or
has een ,nlaw",lly $e#ri'e$ thereo" may reco'er it "rom the #erson in
#ossession o" the same&
I" the #ossessor o" a mo'ale lost or which the owner has
een ,nlaw",lly $e#ri'e$+ has ac6,ire$ it in goo$ "aith at a #,lic sale+
the owner cannot otain its ret,rn witho,t reim,rsing the #rice #ai$
there"or& H404aI
$ight of possessor who ac%uires moable claimed by another
4f the possession of a moable property who ac%uired in bad faith# no
right thereto is ac%uired by the possessor' /he property may be
recoered by the true owner or possessor without reimbursement'
4f the ac%uisition was in good faith# here are the rules8
o 3ossession in good faith of a moable is presumed ownership' 4t is
e%uialent to title' /his is 9nown as the doctrine of irrreindicability'
=o further proof is necessary'
o /he possessors title# howeer# is not absolute' 4t is e%uialent to
title but is not title itself' 4t is merely presumptie because it can be
defeated by the true owner'
/hese are the two exceptions to the general rule of irreindicability' An
owner can recoer in these two instances8
&' When one has lost the moable# or
*' When one has been unlawfully depried'
Ee may recoer without reimbursement' 6ut if the thing was
sold at a public sale# the owner must reimburse the buyer'
/hese are the exceptions to the exceptions' .en when an owner has
lost or has been unlawfully depried# he still cannot recoer in these
instances8
&' When the sale is made at merchants stores# fairs or mar9ets'
*' When the owner of the moable is# by his conduct# precluded
from denying the sellers authority to sell5
-' Where the law enables the apparent owner to dispose of the
moables as if he were the true owner thereof
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@' Where the sale is sanctioned by statutory or judicial authority
<' Where the seller has a oidable title which has not been
aoided at the time of the sale to the buyer in good faith for
alue and without notice of the sellers defect of title
!remember ):F>"
H' Where recoery is no longer possible because of prescription
I' Where the possessor becomes the owner of the thing in
accordance with the principle of finders 9eepers
)ase doctrines
=on7payment does not oid a sale' 4t is perfected upon the meeting of
the minds' Eence# ownership shall pass from the endor to the endee
upon the actual or constructie deliery of the thing sold' 4t does not
constitute unlawful depriation of personal property' 4t is a mere
oidable sale# and unless it is aoided before the execution of the
second sale# then the second sale is alid' !.D)A +antos"
3urchaser in good faith of a chattel or moable property is entitled to be
respected and protected in his possession as if he were the true owner
thereof until a competent court rules otherwise' 4n the meantime# as the
true owner# the possessor in good faith cannot be compelled to
surrender possession nor to be re%uired to institute an action for the
recoery of the chattel' !.du GomeG"
A third party who ac%uired in good faith a stolen ehicle and registered it
in his own name cannot lawfully refuse to return it to the true owner and
insist upon reimbursement before deliery' !AGnar Mapdiangco 2
stealing e=uals unlaw%ul deprivation"
/he owner of a ring pledged to a pawnshop by one to whom he has
entrusted it to be sold on commission can recoer it from the pawnshop'
!DiGon +untay"
Art& *09& <il$ animals are #ossesse$ only while they are ,n$er oneJs
control( $omesticate$ or tame$ animals are consi$ere$ $omestic or
tame i" they retain the hait o" ret,rning to the #remises o" the
#ossessor& H40*I
3ossession of animals
Animals may be8
&' Wild or animals liing in a state of nature independently of and
without the aid and care of man !great white shar9# ornate
wobbegong# braGilian slug"
*' Domesticated or tamed# or animals which are wild or saage by
nature but hae been subdued and made use of by man and
become accustomed to lie in a tamed condition !tiger ni )hait"
-' Domestic or tame# or any of the arious animals which lie and are
born and reared# under the control and care of man# lac9ing the
instinct to roam freely !dog# cat# carabao# cow"
Wild animals may be the object of hunting' /hey are possessed only if
they are under ones control' 3ossession of wild animals are lost when
they regain their freedom or come under anothers control'
Domesticated animals are possessed if they habitually return to the
premises of the possessor'
Art& *01& One who reco'ers+ accor$ing to law+ #ossession ,n!,stly lost+
shall e $eeme$ "or all #,r#oses which may re$o,n$ to his ene"it+ to
ha'e en!oye$ it witho,t interr,#tion& H400I
/his article applies to both possession in good faith as well as to
possession in bad faith# but only if beneficial to the possessor !li9e for
purposes of prescription"
/he recoery of possession must be according to law 2 through legal
means5 otherwise# the benefit of continuous and uninterrupted
possession during the interening period cannot be ino9ed'
TITLE VI 1 CSC3RC:T
:;APTER ONE% CSC3RC:T IN >ENERAL
Art& *0)& Cs,"r,ct gi'es a right to en!oy the #ro#erty o" another with the
oligation o" #reser'ing its "orm an$ s,stance+ ,nless the title
constit,ting it or the law otherwise #ro'i$es& H402I
What is usufruct?
./ A right to enjoy the property of another with the obligation of presering
its form and substance
0/ $ight to enjoy the property of another temporarily# including both the jus
utendi and jus %ruendi# with the owner retaining the jus disponendi
4/ 4n essence# usufruct is nothing else but simply allowing one to enjoy
anothers propery
What are the characteristics of usufruct?
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&' 4t is a real right of use and enjoyment# !whether registered or not in the
$egistry of 3roperty' $egistering will affect and bind third persons"
*' ?f /emporary duration5
-' /ransmissible5 and
@' May be constituted on real or personal property# consumable or non7
consumable# tangible or intangible# the ownership of which is ested in
another
A person cannot create a usufruct oer 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
ones own property is in law a contradiction in terms and a conceptual
absurdity
/he essential re%uisite of usufruct is the right to enjoy the property of
another
/he usufructuary is entitled to all the fruits of the property with the
obligation to presere its form and substance
Eoweer# the obligation of the usufructuary to presere is only
accidental for the law or the will of the parties may modify or een
eliminate it
/wo classifications based on whether or not impairment of object is
allowed8
&' =ormal# perfect or regular 2 inoles non7consumable things which
the usufructuary can enjoy without altering the form or substance#
through they may deteriorate or diminish by time or by use
*' Abnormal# imperfect# irregular or %uasi7usufruct 2 inoles things
which would be useless to the usufructuary unless they are
consumed or expended# such as money# grain# li%uors# etc
(sufruct :ease
=ature of right $eal 3ersonal
)reator of right ?wner or agent May not be the owner
?rigin May be by law# by
contract# by will of
testator# or by
prescription
6y contract
.xtent of enjoyment All the fruits and all the
uses and benefits of the
entire property
!generally"
)ertain uses only
!those stipulated"
)ause More or less passie
owner who allows the
usufructuary to enjoy
the object
Actie owner or lessor
who ma9es the lessee
enjoy
$epairs and taxes (sufructuary to pay :essee not generally
under the obligation to
pay taxes or underta9e
repairs
Art& *0.& Cs,"r,ct is constit,te$ y law+ y the will o" #ri'ate #ersons
e/#resse$ in acts inter 'i'os or in a last will an$ testament+ an$ y
#rescri#tion& H405I
)reation of usufruct
(sufruct may e classified according to how it is created into8
&' :egal# or that created or declared by law
*' Foluntary# or that created by will of the parties !an act inter ios or an
act mortis causa"
-' Mixed or that ac%uired by prescription
Art& *04& Cs,"r,ct may e constit,te$ on the whole or a #art o" the
"r,its o" the thing+ in "a'or o" one more #ersons+ sim,ltaneo,sly or
s,ccessi'ely+ an$ in e'ery case "rom or to a certain $ay+ #,rely or
con$itionally& It may also e constit,te$ on a right+ #ro'i$e$ it is not
strictly #ersonal or intransmissile& H407I
Ninds of usufruct defined
(sufruct may be
&' As to extent of object
a' /otal !constituted on the whole of a thing"
b' 3artial !constituted only on a part of a thing"
*' As to number of beneficiaries
a' +imple !only one"
b' Multiple !seeral usufructuaries"
i' +imultaneous# or
ii' +uccessie
-' As to effectiity or extinguishment
a' 3ure
b' With a term !may be suspensie or resolutory"
c' )onditional !may be suspensie or resolutory"
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@' As to subject matter
a' ?er things !tangible property"
b' ?er rights !intangible property which are not
intransmissible"
Art& *0*& The rights an$ oligations o" the ,s,"r,ct,ary shall e those
#ro'i$e$ in the title constit,ting the ,s,"r,ct( in $e"a,lt o" s,ch title+ or
in case it is $e"icient+ the #ro'isions containe$ in the two "ollowing
:ha#ters shall e oser'e$& H429I
4n case of conflict between the will of the person creating the usufruct
and the )iil code# the former preails'
:;APTER T<O
RI>;TS O3 T;E CSC3RC:TCARY
Art& *00& The ,s,"r,ct,ary shall e entitle$ to all the nat,ral+ in$,strial
an$ ci'il "r,its o" the #ro#erty in ,s,"r,ct& <ith res#ect to hi$$en
treas,re which may e "o,n$ on the lan$ or tenement+ he shall e
consi$ere$ a stranger& H421I
)lassifications of the rights of the usufructuary
&' As to the thing and its fruits
a' /o receie the fruits of the property in usufruct and half of
the hidden treasure he accidentally finds on the property
b' /o enjoy any increase which the thing in usufruct may
ac%uire through accession
c' /o personally enjoy the thing in usufruct or lease it to
another
d' /o ma9e on the property in usufruct such improements or
expenses he may deem property and to remoe the
improements proided no damage is caused to the
property
e' /o set7off the improements he may hae made on the
property against any damage to the same
f' /o retain the thing until he is reimbursed for adances for
extraordinary expenses and taxes on the capital
*' As to the usufruct itself
a' /o alienate !or mortgage" the right of usufruct except
parental usufruct
b' 4n a usufruct to recoer property or a real right# to bring the
action and to oblige the owner thereof to gie him proper
authority and necessary proof# and
c' 4n a usufruct of part of a common property# to exercise all
the rights pertaining to the co7owner with respect to the
administration and collection of fruits or interests from the
property
-' As to adances and damages
a' /o be reimbursed for indispensable extraordinary repairs
made by him in an amount e%ual to the increase in alue
which the property may hae ac%uired by reason of such
repairs
b' /o be reimbursed for taxes on the capital adanced by
him# and
c' /o be indemnified for damages caused to him by the
na9ed owner'
/he usufructuary is gien the right to enjoy the property in usufruct and
he is entitled to the fruits' /he usufructuary has the right to receie all
the fruits except8
a' where the usufruct is constituted only on a part of the fruits
of a thing or
b' where there is an agreement to the contrary'
/he na9ed owner retains and can exercise all the rights as owner oer
the property limited only by the right of enjoyment of the usufructuary'
3roducts which when ta9en from the property diminishes its substance
are not to be treated as fruits' /hey form part of the capital and belong
to the na9ed owner# and not to the usufructuary in the absence of a
contrary intent between the parties'
/he usufructuary is not entitled to any hidden treasure because its not
considered as Bfruits' Eoweer# as a stranger# he is entitled to P if he is
the finder'
Art& *02& Nat,ral or in$,strial "r,its growing at the time the ,s,"r,ct
egins+ elong to the ,s,"r,ct,ary&
Those growing at the time the ,s,"r,ct terminates+ elong to
the owner&
In the #rece$ing cases+ the ,s,"r,ct,ary+ at the eginning o"
the ,s,"r,ct+ has no oligation to re",n$ to the owner any e/#enses
inc,rre$( ,t the owner shall e olige$ to reim,rse at the
termination o" the ,s,"r,ct+ "rom the #rocee$s o" the growing "r,its+
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the or$inary e/#enses o" c,lti'ation+ "or see$+ an$ other similar
e/#enses inc,rre$ y the ,s,"r,ct,ary&
The #ro'isions o" this article shall not #re!,$ice the rights o"
thir$ #ersons+ ac6,ire$ either at the eginning or at the termination o"
the ,s,"r,ct& H42)I
$ight of the usufructuary to pending natural and industrial fruits
/his article does not apply to ciil fruits'
Cor fruits growing at the beginning of usufruct# they belong to the
usufructuary who is not bound to refund to the owner the expenses of
cultiation and production incurred'
o Eoweer# in case the expenses were incurred by innocent third
persons# the usufructuary under Art @@-# pursuant to the last
paragraph of Art <HI# has the obligation to pay the expenses
made'
Cor fruits growing at the termination of the usufruct# they belong to the
owner but he is bound to reimburse the usufructuary the ordinary
cultiation expenses out of the fruits receied'
Manresa opines that if at the termination of the usufruct# force majeure
should preent the usufructuary from gathering the fruits# said fruits
shall belong to him and not the na9ed owner'
Art& *05& I" the ,s,"r,ct,ary has lease$ the lan$s or tenements gi'en in
,s,"r,ct+ an$ the ,s,"r,ct sho,l$ e/#ire e"ore the termination o" the
lease+ he or his heirs an$ s,ccessors shall recei'e only the
#ro#ortionate share o" the rent that m,st e #ai$ y the lessee& H42.I
Art& *07& :i'il "r,its are $eeme$ to accr,e $aily+ an$ elong to the
,s,"r,ct,ary in #ro#ortion to the time the ,s,"r,ct may last& H424I
:ease by the usufrucutary
/he usufructuary may lease the property in usufruct to another'
4f 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' /he rents for the
remaining period of the lease belong to the owner'
Art& *29& <hene'er a ,s,"r,ct is constit,te$ on the right to recei'e a
rent or #erio$ical #ension+ whether in money or in "r,its+ or in the
interest on on$s or sec,rities #ayale to earer+ each #ayment $,e
shall e consi$ere$ as the #rocee$s or "r,its o" s,ch right&
<hene'er it consists in the en!oyment o" ene"its accr,ing
"rom a #artici#ation in any in$,strial or commercial enter#rise+ the $ate
o" the $istri,tion o" which is not "i/e$+ s,ch ene"its shall ha'e the
same character&
In either case they shall e $istri,te$ as ci'il "r,its+ an$ shall
e a##lie$ in the manner #rescrie$ in the #rece$ing article& H42*I
(sufruct constituted on certain rights
.ery benefit or payment shall be considered and distributed as ciil
fruit of such right'
3ayment and benefits that accrue after the termination of the usufruct
belong to the owner'
/he date when the benefits accrue determines whether they should
belong to the usufructuary or to the owner' Art <I; applies whether or
not the date of distribution of benefits is fixed'
)ase doctrine
A stoc9 diidend is considered ciil fruit and belongs to the usufructuary'
!6achrach +eifert"
Art& *21& The ,s,"r,ct,ary shall ha'e the right to en!oy any increase
which the thing in ,s,"r,ct may ac6,ire thro,gh accession+ the
ser'it,$es estalishe$ in its "a'or+ an$+ in general+ all the ene"its
inherent therein& H427I
.xtent of rights of usufructuary
/he usufructuary is generally entitled to all the benefits that the thing in
usufruct can gie including any increase by accession and seritudes
established in his faor'
$eason is that usufruct coers the entire jus %ruendi and jus utendi/
Art& *2)& The ,s,"r,ct,ary may #ersonally en!oy the thing in ,s,"r,ct+
lease it to another+ or alienate his right o" ,s,"r,ct+ e'en y a
grat,ito,s title( ,t all the contracts he may enter into as s,ch
,s,"r,ct,ary shall terminate ,#on the e/#iration o" the ,s,"r,ct+
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sa'ing leases o" r,ral lan$s+ which shall e consi$ere$ as s,sisting
$,ring the agric,lt,ral year& H459I
/ransactions by the usufructuary
with respect to the thing in usufruct# he may lease it een without the
owners consent but not being the owner# the usufructuary cannot
alienate# pledge or mortgage the thing itself' Ee may sell future crops
subject to the rule that those ungathered at the time when the usufruct
terminates belong to the owner'
when the things gien in usufruct cannot be used without being
consumed or were appraised when deliered# the usufructuary may
dispose of them'
With respect to the right of usufruct# since the usufructuary is the owner
of the right itselt# he may alienate# pledge or mortgage it# een by
gratuitous title'
o 6ut the legal usufruct of the parent oer his or her
unemancipated children cannot be alienated# pledged# or
mortgaged for the right is personal and intransmissible
burdened as it is by important obligations of the parent for the
benefit of the children'
o A usufruct gien in consideration of the person of the
usufructuary to last during his lifetime is also personal# and
therefore# intransmissible'
o As a rule# all contracts entered into by the usufructuary shall
terminate upon the expiration of the usufruct or earlier# except
rural leases which continue during the agricultural year'
)ase doctrine
A usufructuary of rents# as a corollary to the right to all the rents# to
choose the tenant# and to fix the amount of the rent# necessarily has the
right to choose himself as the tenant# proided that the obligations he
has assumed towards the owner of the property are fulfilled' !Cabie
Daid"
Art& *2.& <hene'er the ,s,"r,ct incl,$es things which+ witho,t eing
cons,me$+ gra$,ally $eteriorate thro,gh wear an$ tear+ the
,s,"r,ct,ary shall ha'e the right to ma-e ,se thereo" in accor$ance
with the #,r#ose "or which they are inten$e$+ an$ shall not e olige$
to ret,rn them at the termination o" the ,s,"r,ct e/ce#t in their
con$ition at that time( ,t he shall e olige$ to in$emni"y the owner
"or any $eterioration they may ha'e s,""ere$ y reason o" his "ra,$ or
negligence& H451I
(sufruct on things which gradually deteriorate
/his article gies an instance of abnormal usufruct because in the
enjoyment of the property the usufructuary cannot presere its form or
substance'
Eere the thing gradually deteriorates through wear and tear or normal
use'
/he usufructuary is not responsible for the deterioration due to wear and
tear nor is he re%uired to ma9e any repairs to restore it to its formal
condition' Ee needs only to return the thing at the termination of the
usufruct in the condition it may be at that time'
/he usufructuary is liable for damage suffered by the thing by reason of
his fraud or negligence although such liability may be set7off against the
improements he may hae made on the property'
/he usufructuary does not answer for deterioration due to a fortuitous
eent' Ee is# howeer# obligated to ma9e the ordinary repairs needed by
the thing'
Art& *24& <hene'er the ,s,"r,ct incl,$es things which cannot e ,se$
witho,t eing cons,me$+ the ,s,"r,ct,ary shall ha'e the right to ma-e
,se o" them ,n$er the oligation o" #aying their a##raise$ 'al,e at the
termination o" the ,s,"r,ct+ i" they were a##raise$ when $eli'ere$& In
case they were not a##raise$+ he shall ha'e the right to ret,rn at the
same 6,antity an$ 6,ality+ or #ay their c,rrent #rice at the time the
,s,"r,ct ceases& H45)I
(sufruct on consumable things
/his is another instance of abnormal usufruct because the thing in
usufruct cannot be used without being consumed# li9e money !but thats
really a simple loan# where the usufructuary can deal with the money as
owner'"
/he usufructuary shall hae the right to ma9e use of the consumable
thing'
At the termination of the usufruct# he must8
&' 3ay its appraised aluel or
*' 4f there was no appraisal made# either8
a' $eturn the same %uantity and %uality# or
b' 3ay its current price at such termination'
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Art& *2*& The ,s,"r,ct,ary o" "r,it1earing trees an$ shr,s may ma-e
,se o" the $ea$ tr,n-s+ an$ e'en o" those c,t o"" or ,#roote$ y
acci$ent+ ,n$er the oligation to re#lace them with new #lants& H45.aI
Art& *20& I" in conse6,ence o" a calamity or e/traor$inary e'ent+ the
trees or shr,s shall ha'e $isa##eare$ in s,ch consi$erale n,mer
that it wo,l$ not e #ossile or it wo,l$ e too ,r$ensome to re#lace
them+ the ,s,"r,ct,ary may lea'e the $ea$+ "allen or ,#roote$ tr,n-s at
the $is#osal o" the owner+ an$ $eman$ that the latter remo'e them an$
clear the lan$& H454aI
(sufruct on fruit7bearing trees and shrubs
/he usufructuary is gien the right to ma9e use of dead trun9s and
those cut7off or uprooted by accident but he must place them with new
plants because he has the obligation to presere the form or substance
of the property in usufruct'
?f course# the usufructuary has no obligation to replace with new plants#
the dead trees or shrubs already existing at the beginning of the
usufruct'
(nder article <IH# the usufructuary is not responsible for dead# fallen or
uprooted trun9s caused by calamity or extra7ordinary eents' 4f it would
not be possible or be too burdensome to replace them# he may demand
that the owner remoe them and clear the land' Ee may use the trun9s
but he is re%uired to replace them with new plants under Article <I<'
4f replacing the trun9s could not be too burdensome# the usufructuary
must replace them# whether or not he ma9es use of them'
Art& *22& The ,s,"r,ct,ary o" woo$lan$ may en!oy all the ene"its
which it may #ro$,ce accor$ing to its nat,re&
I" the woo$lan$ is a co#se or consists o" timer "or ,il$ing+
the ,s,"r,ct,ary may $o s,ch or$inary c,tting or "elling as the owner
was in the hait o" $oing+ an$ in $e"a,lt o" this+ he may $o so in
accor$ance with the c,stom o" the #lace+ as to the manner+ amo,nt
an$ season&
In any case the "elling or c,tting o" trees shall e ma$e in s,ch
manner as not to #re!,$ice the #reser'ation o" the lan$&
In n,rseries+ the ,s,"r,ct,ary may ma-e the necessary
thinnings in or$er that the remaining trees may #ro#erly grow&
<ith the e/ce#tion o" the #ro'isions o" the #rece$ing
#aragra#hs+ the ,s,"r,ct,ary cannot c,t $own trees ,nless it e to
restore or im#ro'e some o" the things in ,s,"r,ct+ an$ in s,ch case
shall "irst in"orm the owner o" the necessity "or the wor-& H45*I
(sufruct on woodland and nurseries
/he woodland may be a copse or may consist of timber for building'
/he usufructuary may fell or cut trees as the owner was in the habit of
doing or in accordance with the customs of the place as to manner#
amount and season' 4n any case# he must not prejudice the
preseration of the land'
/he usufructuary cannot cut down trees other than as mentioned aboe
unless it be for repair or improement of the things in usufruct but in
such case# the owner must be informed of the necessity for the wor9'
4n nurseries# the usufructuary may ma9e the necessary thinnings in
order that the remaining trees may properly grow'
Art& *25& The ,s,"r,ct,ary o" an action to reco'er real #ro#erty or a real
right+ or any mo'ale #ro#erty+ has the right to ring the action an$ to
olige the owner thereo" to gi'e him the a,thority "or this #,r#ose an$
to ",rnish him whate'er #roo" he may ha'e& I" in conse6,ence o" the
en"orcement o" the action he ac6,ires the thing claime$+ the ,s,"r,ct
shall e limite$ to the "r,its+ the $ominion remaining with the owner&
H450I
(sufruct of judicial action to recoer
/his article applies if the purpose of the action is to recoer real property
or personal property or real right oer real or personal property
/he action may be instituted in the name of the usufructuary !s an
agent who institutes the action in the name of the principal"
/he usufructuary may oblige the owner to gie him the necessary
authority to bring the action
4n case of faorable judgment# the usufruct shall be limited to the fruits#
with the na9ed ownership belonging to the owner' With the termination
of the case# the usufruct of the action comes to an end'
Art& *27& The ,s,"r,ct,ary may ma-e on the #ro#erty hel$ in ,s,"r,ct
s,ch ,se",l im#ro'ements or e/#enses "or mere #leas,re as he may
$eem #ro#er+ #ro'i$e$ he $oes not alter its "orm or s,stance( ,t he
shall ha'e no right to e in$emni"ie$ there"or& ;e may+ howe'er+
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remo'e s,ch im#ro'ements+ sho,l$ it e #ossile to $o so witho,t
$amage to the #ro#erty& H452I
What happens when a usufructuary ma9es useful or luxurious expenses?
/he usufructuary has the right to ma9e improements# useful or
luxurious# as he may deem proper'
What are the rules?
&' Ee must not alter the form or substance of the property#
*' Ee may remoe the improements only if it is possible to do so
without damage to the property
-' Ee has no right to be indemnified for the improements if he does
not exercise his right to remoe
o Ee cannot ino9e the rights of a possessor in good faith in
the concept of owner
@' 4f the improements cannot be remoed without damage# he may
set7off the same against any damage caused by him to the property
!Art <D;"
<' 4f the usufructuary does not wish to exercise his right of remoal#
the owner cannot compel him to remoe the improements
H' 4f the usufructuary wishes to exercise his right of remoal# the
owner cannot preent him by offering to reimburse him
I' /he usufructuarys right to remoe the improements includes the
right to destroy them proided no damage is caused to the property
D' /he right to remoe is enforceable only against the owner# but not
against a purchaser in good faith to whom a clean title has been
issued
o $ight to remoe the improements should be annotated
on the certificate of title# so that it can be enforced against
third parties
)ase doctrines
6y express proision of law# the usufructuaries do not hae the right to
reimbursement for improements they may hae introduced on the
property' 4f the rule on reimbursement or indemnity were otherwise# then
the usufructuary might improe the owner out of his property' !Moralidad
3ernes"
Art& *59& The ,s,"r,ct,ary may set o"" the im#ro'ements he may ha'e
ma$e on the #ro#erty against any $amage to the same& H455I
$ight to set7off improements
/his article presupposes that
o the improements hae increased the alue of the property
and
o the damage to the same was caused through the fault of the
usufructuary'
4f the damage exceeds the alue of the improements# the usufructuary
is liable for the difference as indemnity
4f the alue of the improements exceeds the damage# he may remoe
the portion of the improements representing the excess in alue if this
can be done without injury to the property# otherwise# the excess in
alue accrues to the owner'
Art& *51& The owner o" #ro#erty the ,s,"r,ct o" which is hel$ y
another+ may alienate it+ ,t he cannot alter its "orm or s,stance+ or
$o anything thereon which may e #re!,$icial to the ,s,"r,ct,ary& H457I
$ights and obligations of the na9ed owner
/he na9ed owner may alienate the property in usufruct because the title
!dominium directum) remains ested in him'
Ee may construct wor9s# ma9e improements# or ma9e new plantings
on the property in usufruct'
/he alienation by the na9ed owner cannot affect the usufruct which is
registered or 9nown to the transferee'
/he na9ed owner# howeer# cannot8
o alter the form or substance of the property# or
o do anything thereon which may cause a diminution in the alue
of the usufruct# or
o be prejudicial to the rights of the usufructuary#
otherwise# he shall be liable for damages'
/he na9ed owner must8
o $espect leases of rural lands by the usufructuary for the
balance of the agricultural year !Art <I*"
o $eimburse him for adances made for extraordinary repairs
!Art <K@"# and
o $eimburse him for taxes on the capital !Art <KI"
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Art& *5)& The ,s,"r,ct,ary o" a #art o" a thing hel$ in common shall
e/ercise all the rights #ertaining to the owner thereo" with res#ect to
the a$ministration an$ the collection o" "r,its or interest& Sho,l$ the
co1ownershi# cease y reason o" the $i'ision o" the thing hel$ in
common+ the ,s,"r,ct o" the #art allotte$ to the co1owner shall elong
to the ,s,"r,ct,ary& H479I
(sufruct of part of common property
4n case a co7owner gies the usufruct of his share to a person# the
usufructuary shall exercise all the rights pertaining to the co7owner
regarding the administration and the collection of the fruits or interest
from the property
/he usufructuary shall be bound by the partition made by the owners of
the undiided property although he too9 no part in the partition but the
na9ed owner to whom the part held in usufruct has been allotted must
respect the usufruct'
)ase doctrine
A partition made by the owners of land is binding upon a person who
has a usufructuary right in an undiided part of the land# although the
latter too9 no part in the partition of the property'
/he right of the usufructuary is not affected by the diision but it is
limited to the fruits of the said part allotted to the co7owner' !3ichay
,uerol"
:;APTER .
O=LI>ATIONS O3 T;E CSC3RC:TCARY
Art& *5.& The ,s,"r,ct,ary+ e"ore entering ,#on the en!oyment o" the
#ro#erty+ is olige$%
H1I To ma-e+ a"ter notice to the owner or his legitimate re#resentati'e+
an in'entory o" all the #ro#erty+ which shall contain an a##raisal o" the
mo'ales an$ a $escri#tion o" the con$ition o" the immo'ales(
H)I To gi'e sec,rity+ in$ing himsel" to ",l"ill the oligations im#ose$
,#on him in accor$ance with this :ha#ter& H471I
)lassifications of obligations of the usufructuary
&' /hose be%ore the usufruct begins
a' Ma9e an inentory of the property# which shall contain an
appraisal of the moables and a description of the
immoables
b' Gie security
*' /hose during the usufruct
a' /a9e care of the property !Art <DK"
b' /o replace with the young thereof animals that die or are
lost in certain cases when the usufruct is constituted on
floc9 or herd of liestoc9 !Art <K&"
c' /o ma9e ordinary repairs !Art <K*# par &"
d' /o notify the owner of urgent extraordinary repairs !Art
<K-"
e' /o permit wor9s and improements by the na9ed owner
not prejudicial to the usufruct !Art <K<"
f' /o pay annual taxes and charges on the fruits !Art <KH"
g' /o pay interest on taxes on capital paid by the na9ed
owner !Art <KI"
h' /o pay debts when the usufruct is constituted on the whole
of a patrimony !Art <KD"
i' /o secure the na9ed owners or courts approal to collect
credits in certain cases !Art <KK"
j' /o notify the owner of any prejudicial act committed by
third persons !Art H;&"
9' /o pay for court expenses and costs regarding usufruct
!Art H;*"
-' /hose at the termination of the usufruct
a' /o return the thing in usufruct to the na9ed owner unless
there is a right of retention !Art H&*"
b' /o pay legal interest for the time that the usufruct lasts# on
the amount spent by the owner for extraordinary repairs
!Art <K@" and the proper interest on the sums paid as
taxes by the owner !Art <KI"# and
c' /o indemnify the na9ed owner for any losses due to his
negligence or of his transferees' !Art <DK7<K;"
?bligation to ma9e an inentory
&' 3reious notice to be gien'
4n the ma9ing of the inentory# the concurrence of the na9ed owner
is not re%uired'
=ote that the law says Blegitimate# not legal representatie
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*' .xpenses of inentory
6orne by the usufructuary
-' Corm of inentory
Article <D- does not proide for the form of inentory' 4t may be
contained in a priate document'
Eoweer# a public instrument is necessary to affect third persons
when there are immoables'
@' )ontents of inentory
/he inentory shall contain
o an itemiGed list and
o an appraisal of the moables and
o description of the condition of the immoables'
/he moables must be appraised because they are subject to
greater danger of loss and deterioration'
6oth 9inds must be properly identified'
Cailure to ma9e an inentory? (sufruct not extinguished# maybe owner can
demand it'
Are there instances where obligation to ma9e inentory is excused? Mes'
+ee Art <D<'
?bligation to gie security
/he purpose of giing security is to insure the fulfillment by the
usufructuary of the obligations imposed upon him
:aw does not specify the 9ind of security that should be gien
Cailure to gie security? +ee Art <DH'
Art& *54& The #ro'isions o" No& ) o" the #rece$ing article shall not a##ly
to the $onor who has reser'e$ the ,s,"r,ct o" the #ro#erty $onate$+ or
to the #arents who are ,s,"r,ct,aries o" their chil$renJs #ro#erty+
e/ce#t when the #arents contract a secon$ marriage& H47)aI
When obligation to gie security not applicable
/his article contains the legal exceptions to the obligation of the
usufructuary to gie security in two cases8
o /o the donor who has resered the usufruct of the property
donated
o /o the parents who are usufructuaries of their childrens
parents# except when the parents contract a second marriage
Art& *5*& The ,s,"r,ct,ary+ whate'er may e the title o" the ,s,"r,ct+
may e e/c,se$ "rom the oligation o" ma-ing an in'entory or o"
gi'ing sec,rity+ when no one will e in!,re$ therey& H47.I
When obligation to ma9e inentory or to gie security excused
/he usufructuary may be excused from the obligation in the following
cases8
&' Where the na9ed owner renounces or waies his right to the
inentory or security
*' Where the title constituting the usufruct reliees the usufructuary
from the obligation5
o 4s fre%uently true in usufructs constituted by a last will and
testament or by a deed of donation in iew of the trust
which the testator or donor has in the usufructuary
-' Where the usufructuary as9s that he be exempted from the
obligation and no one will be injured thereby'
o /he usufructuary may apply to the courts for relief in case
the na9ed owner refuses to grant the exemption where# for
example# the usufruct is oer the right to receie a periodic
income or pension
Art& *50& Sho,l$ the ,s,"r,ct,ary "ail to gi'e sec,rity in the cases in
which he is o,n$ to gi'e it+ the owner may $eman$ that the
immo'ales e #lace$ ,n$er a$ministration+ that the mo'ales e
sol$+ that the #,lic on$s+ instr,ments o" cre$it #ayale to or$er or to
earer e con'erte$ into registere$ certi"icates or $e#osite$ in a an-
or #,lic instit,tion+ an$ that the ca#ital or s,ms in cash an$ the
#rocee$s o" the sale o" the mo'ale #ro#erty e in'este$ in sa"e
sec,rities&
The interest on the #rocee$s o" the sale o" the mo'ales an$
that on #,lic sec,rities an$ on$s+ an$ the #rocee$s o" the #ro#erty
#lace$ ,n$er a$ministration+ shall elong to the ,s,"r,ct,ary&
3,rthermore+ the owner may+ i" he so #re"ers+ ,ntil the
,s,"r,ct,ary gi'es sec,rity or is e/c,se$ "rom so $oing+ retain in his
#ossession the #ro#erty in ,s,"r,ct as a$ministrator+ s,!ect to the
oligation to $eli'er to the ,s,"r,ct,ary the net #rocee$s thereo"+ a"ter
$e$,cting the s,ms which may e agree$ ,#on or !,$icially allowe$
him "or s,ch a$ministration& H474I
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.ffects of failure to gie security# when re%uired
?n rights of owners8 Where the obligation to gie security or to file a
bond is not excused or exempted# the failure of the usufructuary to
comply with the same entitle the na9ed owner for his protection
o to demand that immoables be placed under administration or
receiership#
o moables be sold#
o instruments of credit be registered or deposited in a ban9 or
public institution
o capital or sums in cash and the proceeds of the sale of the
moable be inested in safe securities'
?n rights of usufructuary8 (ntil he gies the proper security# the
usufructuary cannot enter upon the possession and enjoyment of the
property' Ee may not collect any matured credits nor inest capital in
usufruct without the consent of the owner or judicial authoriGation'
/he failure to gie security does not extinguish the right of usufruct'
Eence# the usufructuary may alienate his right to the usufruct
/his article only spea9s of security !it would seem that the failure of the
usufructuary to ma9e an inentory# when not excused# does not hae
the same effect as when security is not gien'"
Art& *52& I" the ,s,"r,ct,ary who has not gi'en sec,rity claims+ y
'irt,e o" a #romise ,n$er oath+ the $eli'ery o" the ",rnit,re necessary
"or his ,se+ an$ that he an$ his "amily e allowe$ to li'e in a ho,se
incl,$e$ in the ,s,"r,ct+ the co,rt may grant this #etition+ a"ter $,e
consi$eration o" the "acts o" the case&
The same r,le shall e oser'e$ with res#ect to im#lements+
tools an$ other mo'ale #ro#erty necessary "or an in$,stry or
'ocation in which he is engage$&
I" the owner $oes not wish that certain articles e sol$
eca,se o" their artistic worth or eca,se they ha'e a sentimental
'al,e+ he may $eman$ their $eli'ery to him ,#on his gi'ing sec,rity "or
the #ayment o" the legal interest on their a##raise$ 'al,e& H47*I
+worn underta9ing in lieu of security ! caucion juratoria "
/his article applies when the usufructuary who is under obligation to
gie security cannot afford to do so and no one is willing to gie security
for them
Cor humanitarian considerations# the court may allow the usufructuary
to enjoy the property upon ta9ing an oath to ta9e care of the property
and retain it until the termination of the usufruct in lieu of giing the
security
/he usufructuary must first as9 the na9ed owner to grant him the rights
mentioned# and should the latter refuse# he may resort to the courts
Articles with artistic or sentimental alue may not be sold' /he owner
may demand their deliery to him if he gies security to the usufructuary
for the payment of the legal interest on their appraised alue'
Art& *55& A"ter the sec,rity has een gi'en y the ,s,"r,ct,ary+ he shall
ha'e a right to all the #rocee$s an$ ene"its "rom the $ay on which+ in
accor$ance with the title constit,ting the ,s,"r,ct+ he sho,l$ ha'e
commence$ to recei'e them& H470I
$etroactie effect of giing security
/his article applies where the usufructuary who is re%uired to gie
security gies the security after the commencement of the usufruct
Cailure to gie the needed security may deprie the usufructuary of the
right to enjoy the possession of the property in usufruct
Eoweer# once the security is gie# he is entitled to all the proceeds and
benefits of the usufruct accruing from the day on which he should hae
commenced to receie them# from the day the usufruct commenced
according to its title'
Art& *57& The ,s,"r,ct,ary shall ta-e care o" the things gi'en in
,s,"r,ct as a goo$ "ather o" a "amily& H472I
?bligation to ta9e care of the property
4ncludes the ma9ing of ordinary repairs needed by thing gien in
usufruct
)are re%uired is that of a good father of a family !ordinary diligence"
6ut diligence should not be less than that re%uired by the circumstances
(sufructuary is liable for damages suffered by the property due to his
fault and negligence
Art& *79& A ,s,"r,ct,ary who alienates or leases his right o" ,s,"r,ct
shall answer "or any $amage which the things in ,s,"r,ct may s,""er
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thro,gh the "a,lt or negligence o" the #erson who s,stit,tes him&
H475I
:iability for fault or negligence of substitute
/he usufructuary may alienate or lease his right
Eoweer# he shall be liable to the owner for any damage which the
property in usufruct may suffer through the fault or negligence !also
fraud or willful acts" of the substitute without prejudice to his right of
action against the latter
Art& *71& I" the ,s,"r,ct e constit,te$ on a "loc- or her$ o" li'estoc-+
the ,s,"r,ct,ary shall e olige$ to re#lace with the yo,ng thereo" the
animals that $ie each year "rom nat,ral ca,ses+ or are lost $,e to the
ra#acity o" easts o" #rey&
I" the animals on which the ,s,"r,ct is constit,te$ sho,l$ all
#erish+ witho,t the "a,lt o" the ,s,"r,ct,ary+ on acco,nt o" some
contagio,s $isease or any other ,ncommon e'ent+ the ,s,"r,ct,ary
shall ",l"ill his oligation y $eli'ering to the owner the remains which
may ha'e een sa'e$ "rom the mis"ort,ne&
Sho,l$ the her$ or "loc- #erish in #art+ also y acci$ent an$
witho,t the "a,lt o" the ,s,"r,ct,ary+ the ,s,"r,ct shall contin,e on the
#art sa'e$&
Sho,l$ the ,s,"r,ct e on sterile animals+ it shall e consi$ere$+ with
res#ect to its e""ects+ as tho,gh constit,te$ on ",ngile things& H477aI
(sufruct on a floc9 or herd of liestoc9
/he usufructuary has the duty to ma9e replacement although the death
of the animals is due to natural causes' 6ut the replacement is to be
made only from the young produced so that if there are no young or the
number of the young is less than that of the animals that died# the
usufructuary has no duty to replace or to fill up the difference'
=o duty to replace proided the usufructuary is without fault !*
nd
and -
rd

paragraphs"' .en if the partial loss is due to the fault of the
usufructuary# the usufruct continues with the remainder' 6ad use does
not extinguish the usufruct !Art H;-"# but the owner may bring the
necessary action for the protection of his rights'
4f the animals are sterile# and they cannot be replaced by the young
thereof# the usufruct shall be treated as constituted on fungible things' 4n
such case Art <I@ applies'
Art& *7)& The ,s,"r,ct,ary is olige$ to ma-e the or$inary re#airs
nee$e$ y the thing gi'en in ,s,"r,ct&
=y or$inary re#airs are ,n$erstoo$ s,ch as are re6,ire$ y
the wear an$ tear $,e to the nat,ral ,se o" the thing an$ are
in$is#ensale "or its #reser'ation& Sho,l$ the ,s,"r,ct,ary "ail to ma-e
them a"ter $eman$ y the owner+ the latter may ma-e them at the
e/#ense o" the ,s,"r,ct,ary& H*99I
?bligation to ma9e ordinary repairs
/he usufructuary is bound to ma9e the repairs referred to without the
necessity of demand from the owner
o /he owner may ma9e them at the expense of the usufructuary#
only should the latter fail to ma9e them after demand has been
made upon him'
o /he defects re%uiring ordinary repairs must hae occurred
during the usufruct# whether with or without the fault of the
usufructuary'
/he usufructuary is not liable for deterioration resulting from wear and
tear not due to his fraud or negligence# unless the deterioration could
hae been preented or arrested by ordinary repairs and he failed to
ma9e them without alid reason'
Art& *7.& E/traor$inary re#airs shall e at the e/#ense o" the owner&
The ,s,"r,ct,ary is olige$ to noti"y the owner when the nee$ "or s,ch
re#airs is ,rgent& H*91I
Art& *74& I" the owner sho,l$ ma-e the e/traor$inary re#airs+ he shall
ha'e a right to $eman$ o" the ,s,"r,ct,ary the legal interest on the
amo,nt e/#en$e$ "or the time that the ,s,"r,ct lasts&
Sho,l$ he not ma-e them when they are in$is#ensale "or the
#reser'ation o" the thing+ the ,s,"r,ct,ary may ma-e them( ,t he
shall ha'e a right to $eman$ o" the owner+ at the termination o" the
,s,"r,ct+ the increase in 'al,e which the immo'ale may ha'e
ac6,ire$ y reason o" the re#airs& H*9)aI
Duty of owner to pay for extraordinary repairs
:aw does not impose an obligation on the na9ed owner or the
usufructuary to ma9e extraordinary repairs on the property in usufruct' 4t
is optional for them to ma9e sure repairs or not'
3ayment for extraordinary repairs8
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o /hose re%uired by the wear and tear due to the natural use of
the thing but not indispensable for its preseration ?$ those
re%uired by the deterioration of or damage the thing caused by
the exceptional circumstances but not indispensable for its
preseration8
/he owner cannot be compelled to ma9e them' 4f he
should ma9e them# they shall be at his expense since
they are made on his property but he shall a right to
demand of the usufructuary who is benefited by the
repairs# legal interest on the amount expended during
the duration of the usufruct'
/he usufructuary may ma9e them but he is not
entitled to indemnity because they are not needed for
the preseration of the thing'
o /hose re%uired by the deterioration of or damage to the thing
caused by exceptional circumstances and are indispensable
for its preseration8
4t is also optional upon the owner or the usufructuary
to ma9e the repairs or not' 4f the owner should ma9e
the repairs# they shall be at his expense'
4f made by the usufructuary# he shall hae the right to
demand of the owner the payment of the increase in
alue of the immoable by reason of the repairs at the
termination of the usufruct proided the following are
present8
Ee notified the owner of the urgency of the
repairs
/he owner failed to ma9e the repairs
/he repair is necessary for the preseration
of the property
/he usufructuary has the right of retention een after the termination of
the usufruct until he is reimbursed for the increase in alue of the
property caused by extraordinary repairs for preseration !Art H&*"
o 4ncrease in alue is the difference between the alue of the
property before the repairs were made and the alue after the
repairs were completed
Art& *7*& The owner may constr,ct any wor-s an$ ma-e any
im#ro'ements o" which the immo'ale in ,s,"r,ct is s,sce#tile+ or
ma-e new #lantings thereon i" it e r,ral+ #ro'i$e$ that s,ch acts $o
not ca,se a $imin,tion in the 'al,e o" the ,s,"r,ct or #re!,$ice the
right o" the ,s,"r,ct,ary& H*9.I
)onstruction# improements and plantings by owner
/he owner has the right to do the wor9s mentioned proided the alue
of the usufruct is not prejudiced
Any increase in the alue of the usufruct due to the improements will
inure to the benefit of the usufructuary for he is entitled to the use and
fruits of the property
/he owner has no right to demand legal interest on his expenses
because they were oluntarily incurred by him
/he owner may een alienate his property or ma9e changes thereon as
long as he doesnt impair the right of the usufructuary'
)ase doctrine
4n a case where the usufruct was oer the land# and the owner built
buildings on the land# and the usufructuary was demanding the rents of
the buildings as part of the usufruct# the )ourt held that the usufructuary
was not entitled to the rents of the building' /he usufructuarys argument
that Article <I& was applicable !right to enjoy any increase by
accession" was wrong because such accession is limited to buildings
erected on the land of another and does not contemplate a situation
where the owner himself erected the buildings' !Gaboya )ui"
Eoweer# the usufructuary was entitled to reasonable rental for the
portion of the land occupied by the building because the construction of
the building had reduced the area of the land and to that extent
diminished the alue of the usufruct' Eoweer# li9e said aboe# since the
usufruct was resered oer the land alone# the usufructuary was not
entitled to the rents of the building itslef'
Art& *70& The #ayment o" ann,al charges an$ ta/es an$ o" those
consi$ere$ as a lien on the "r,its+ shall e at the e/#ense o" the
,s,"r,ct,ary "or all the time that the ,s,"r,ct lasts& H*94I
Art& *72& The ta/es which+ $,ring the ,s,"r,ct+ may e im#ose$ $irectly
on the ca#ital+ shall e at the e/#ense o" the owner&
I" the latter has #ai$ them+ the ,s,"r,ct,ary shall #ay him the #ro#er
interest on the s,ms which may ha'e een #ai$ in that character( an$+
i" the sai$ s,ms ha'e een a$'ance$ y the ,s,"r,ct,ary+ he shall
reco'er the amo,nt thereo" at the termination o" the ,s,"r,ct& H*9*I
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:iability for charges and taxes
(sufructuary must pay the annual charges and taxes which are
imposed# and# therefore# are a lien upon the fruits during the term of the
usufruct'
Are real property taxes imposed on the fruits or on the capital? ?n the
capital'
/axies leied on the capital must be paid by the na9ed owner but he has
right to demand from the usufructuary the proper interest on the sums
paid'
4f the taxes were adanced oluntarily by the usufructuary he is entitled
to be reimbursed therefor at the termination of the usufruct with the right
of retention until paid'
Art& *75& I" the ,s,"r,ct e constit,te$ on the whole o" a #atrimony+ an$
i" at the time o" its constit,tion the owner has $ets+ the #ro'isions o"
Articles 2*5 an$ 2*7 relating to $onations shall e a##lie$+ oth with
res#ect to the maintenance o" the ,s,"r,ct an$ to the oligation o" the
,s,"r,ct,ary to #ay s,ch $ets&
The same r,le shall e a##lie$ in case the owner is olige$+ at the time
the ,s,"r,ct is constit,te$+ to ma-e #erio$ical #ayments+ e'en i" there
sho,l$ e no -nown ca#ital& H*90I
Where usufruct coners entire patrimony
Art <KD applies to a
o uniersal usufruct or one which coers the entire patrimony of
the owner# and
o at the time of its constitution# by donation or any other acts
inter ios# he has debts# whether secured or unsecured# or is
bound to ma9e periodical payments een if# in the latter case#
there should be no 9nown capital
/he liability of the usufructuary for the debts of the na9ed owner is the
same as that of the donee under I<D and I<K
o when there is a stipulation for the payment by the usufructuary
of the debts of the owner# the former is liable only for the debts
contracted by the latter before the constitution of the usufruct
o in the absence of stipulation# the usufructuary shall be
responsible only when the usufruct was created in fraud of
creditors
Art& *77& The ,s,"r,ct,ary may claim any mat,re$ cre$its which "orm a
#art o" the ,s,"r,ct i" he has gi'en or gi'es the #ro#er sec,rity& I" he
has een e/c,se$ "rom gi'ing sec,rity or has een ale to gi'e it+ or i"
that gi'en is not s,""icient+ he shall nee$ the a,thori4ation o" the
owner+ or o" the co,rt in $e"a,lt thereo"+ to collect s,ch cre$its&
The ,s,"r,ct,ary who has gi'en sec,rity may ,se the ca#ital
he has collecte$ in any manner he may $eem #ro#er& The ,s,"r,ct,ary
who has not gi'en sec,rity shall in'est the sai$ ca#ital at interest ,#on
agreement with the owner( in $e"a,lt o" s,ch agreement+ with !,$icial
a,thori4ation( an$+ in e'ery case+ with sec,rity s,""icient to #reser'e
the integrity o" the ca#ital in ,s,"r,ct& H*92I
(sufruct of matured credits
if the usufructuary has gien sufficient security# he may claim matured
credits forming part of the usufruct# collect them# and use and inest#
with or without interest# the capital he has collected# in any manner he
may deem proper
if he
o has =?/ gien security# or
o that gien is not sufficient# or
o he has been excused from giing security#
he may collect the credits and inest the capital which
must be at interest# with the consent of the na9ed
owner or approal of the court'
/he credits which constitute the capital belong to the
na9ed owner but the usufructuary has the right to use
and inest them# and to receie the interest therefrom'
4n eery case# the inestment of the capital must be with sufficient
security to presere its integrity
Art& 099& The ,s,"r,ct,ary o" a mortgage$ immo'ale shall not e
olige$ to #ay the $et "or the sec,rity o" which the mortgage was
constit,te$&
Sho,l$ the immo'ale e attache$ or sol$ !,$icially "or the
#ayment o" the $et+ the owner shall e liale to the ,s,"r,ct,ary "or
whate'er the latter may lose y reason thereo"& H*97I
(sufruct of mortgaged immoables
/he usufruct is particular# constituted by will or by acts inter ios#
whether by onerous or gratuitous title
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4f the usufruct is uniersal# the liability of the usufructuary to pay for the
mortgage is goerned by Art <KD'
/he owner may alidly mortgage the property in faor of a third person'
/he debt must be paid by the owner'
/he usufructuary may mortgage his right of usufruct which is a real right
Art& 091& The ,s,"r,ct,ary shall e olige$ to noti"y the owner o" any
act o" a thir$ #erson+ o" which he may ha'e -nowle$ge+ that may e
#re!,$icial to the rights o" ownershi#+ an$ he shall e liale sho,l$ he
not $o so+ "or $amages+ as i" they ha$ een ca,se$ thro,gh his own
"a,lt& H*11I
?bligation to notify owner of prejudicial acts by third persons
Art H;& spea9s of any act which may be prejudicial to the Brights of
ownership# not merely of the Bna9ed ownership
A usufructuary has the duty to protect the owners interest
Eoweer# where the act affects possession# although this is in the
usufructuary# he should notify the owner because the latter has an
interest in defending it'
/he usufructuary is also obliged to notify the owner before ma9ing an
inentory of the property and of the need of urgent repairs'
)ase doctrine
A usufructuary has the duty to protect the owners interests 2 a usufruct
gies a right to enjoy the property of another with the obligation of
presering its form and substance# unless the title constituting it or the
law otherwise proides' !=EA )A"
Art& 09)& The e/#enses+ costs an$ liailities in s,its ro,ght with
regar$ to the ,s,"r,ct shall e orne y the ,s,"r,ct,ary& H*1)I
?bligation to pay for judicial expenses and cost
+ince they are in connection with litigation oer possession affecting the
rights of the usufructuary# it is just that they are borne by him'
4f the litigation inoles only the na9ed ownership# the owner should
assume them'
:;APTER 4
EETIN>CIS;MENT O3 CSC3RC:T
Art& 09.& Cs,"r,ct is e/ting,ishe$%
H1I =y the $eath o" the ,s,"r,ct,ary+ ,nless a contrary
intention clearly a##ears(
H)I =y the e/#iration o" the #erio$ "or which it was constit,te$+
or y the ",l"illment o" any resol,tory con$ition #ro'i$e$ in the title
creating the ,s,"r,ct(
H.I =y merger o" the ,s,"r,ct an$ ownershi# in the same
#erson(
H4I =y ren,nciation o" the ,s,"r,ct,ary(
H*I =y the total loss o" the thing in ,s,"r,ct(
H0I =y the termination o" the right o" the #erson constit,ting
the ,s,"r,ct(
H2I =y #rescri#tion& H*1.aI
Eow is a usufruct extinguished?
&' Death of the usufructuary !unless contrary intention clearly appears"
*' .xpiration of period or fulfillment of condition
-' 6y merger of the usufruct and ownership in the same person
@' 6y renunciation of the usufructuary
<' 6y the total loss of the thing
H' /ermination of right of owner !refers to the right of the person
constituting the usufruct# not to a condition imposed upon the usufruct
itself"
I' 6y prescription !ac%uisitie prescription by the use of a third person# not
the use by the usufructuary"
D' ?ther causes !annulment or rescission of the contract"
)ase doctrines
Although the owner expressly authoriGed the usufructuaries to occupy a
portion of her property 0as long as they li9e1# the usufruct may be
considered terminated by other modes or instances of extinguishment#
such as the fulfillment of any resolutory condition proided in the
document creating the usufruct' !Moralidad +pouses 3erneG"
/he -;7year limitation on usufruct under the ?ld +panish )iil )ode
does not apply to trusts' !3alad Goernor of ,ueGon 3roince"
Art& 094& I" the thing gi'en in ,s,"r,ct sho,l$ e lost only in #art+ the
right shall contin,e on the remaining #art& H*14I
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/o extinguish a usufruct# the loss must be total# except as proided in
Art H;I to H;K
4f the loss in only partial# the usufruct continues with the remaining part'
6ut if the partial loss may be so important as to be considered total loss#
the courts shall determine'
Art& 09*& Cs,"r,ct cannot e constit,te$ in "a'or o" a town+ cor#oration+
or association "or more than "i"ty years& I" it has een constit,te$+ an$
e"ore the e/#iration o" s,ch #erio$ the town is aan$one$+ or the
cor#oration or association is $issol'e$+ the ,s,"r,ct shall e
e/ting,ishe$ y reason thereo"& H*1*aI
/he ordinary life of a corporation is <; years' (nli9e a natural person# a
corporation or association may be extended indefinitely' 3ublic policy
frowns upon perpetual usufruct'
/he fifty7year limitation does not apply to trusts'
Art& 090& A ,s,"r,ct grante$ "or the time that may ela#se e"ore a thir$
#erson attains a certain age+ shall s,sist "or the n,mer o" years
s#eci"ie$+ e'en i" the thir$ #erson sho,l$ $ie e"ore the #erio$ e/#ires+
,nless s,ch ,s,"r,ct has een e/#ressly grante$ only in consi$eration
o" the e/istence o" s,ch #erson& H*10I
.xception here is when the usufruct has been expressly granted only in
consideration of the existence of the third person
Art& 092& I" the ,s,"r,ct is constit,te$ on immo'ale #ro#erty o" which
a ,il$ing "orms #art+ an$ the latter sho,l$ e $estroye$ in any manner
whatsoe'er+ the ,s,"r,ct,ary shall ha'e a right to ma-e ,se o" the lan$
an$ the materials&
The same r,le shall e a##lie$ i" the ,s,"r,ct is constit,te$ on
a ,il$ing only an$ the same sho,l$ e $estroye$& =,t in s,ch a case+
i" the owner sho,l$ wish to constr,ct another ,il$ing+ he shall ha'e a
right to occ,#y the lan$ an$ to ma-e ,se o" the materials+ eing
olige$ to #ay to the ,s,"r,ct,ary+ $,ring the contin,ance o" the
,s,"r,ct+ the interest ,#on the s,m e6,i'alent to the 'al,e o" the lan$
an$ o" the materials& H*12I
Where usufruct of land and building# and building destroyed
/he destruction of the building terminates the usufruct on the building
but no the usufruct on the land
/he usufructuary is still entitled to use the land and in place of the
building# the materials thereof' !3artial loss"
/he 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
law as against the wish of the owner to construct another building' While
the usufruct on a building does not expressly include the land on which
it is constructed# the land should be deemed included# for while there
can be land without a building# there can be no building without land'
/he na9ed owner shall pay legal interest on insurance receied if it has
not been used in the construction of another building during the whole
period of the usufruct' 6ut he may# if he desires# reliee himself of this
encumbrance by turning oer the money to the usufructuary so that he
may use it subject to the obligation to return the amount to the na9ed
owner after his death as proided in article H&*'
Where usufruct on building only and it is destroyed
+ame rule applies although the usufruct does not coer the land for the
simple reason that the use of the building necessarily inoles the use
of the land
6ut# the owner is gien the preferential right to construct another
building# occupy the land and ma9e use of the material een against the
objection of the usufructuary
/he only right of the usufructuary is to receie during the continuance of
the usufruct# legal interest on the alue of the land of the materials'
)ase doctrines
A life usufruct constituted on the rentals of the %incas situadas located at
a certain place includes the rentals both on the building and the land on
which it is erected# because the building can not exist without the land'
Eence# the usufruct is not extinguished by the destruction of the
building# for under the law usufruct is extinguished only by the total loss
of the thing subject of the encumbrance' !Fda de Albar )arandang"
Art& 095& I" the ,s,"r,ct,ary shares with the owner the ins,rance o" the
tenement gi'en in ,s,"r,ct+ the "ormer shall+ in case o" loss+ contin,e
in the en!oyment o" the new ,il$ing+ sho,l$ one e constr,cte$+ or
shall recei'e the interest on the ins,rance in$emnity i" the owner $oes
not wish to re,il$&
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Sho,l$ the ,s,"r,ct,ary ha'e re",se$ to contri,te to the
ins,rance+ the owner ins,ring the tenement alone+ the latter shall
recei'e the ",ll amo,nt o" the ins,rance in$emnity in case o" loss+
sa'ing always the right grante$ to the ,s,"r,ct,ary in the #rece$ing
article& H*15aI
3ayment of cost of insurance
=either the owners nor the usufructuary is under obligation to insure the
property in usufruct' +hould they do so# and 2
o /he usufructuary shares with the owner in insuring the
property# the usufructuary shall continue to enjoy the new
building to be constructed# or if the owner does not wish to
rebuild# the usufructuary shall receie the legal interest on the
insurance proceeds which will go to the owner'
o /he usufructuary refuses to contribute to the insurance# and so
the owner pays it alone# the owner gets the full insurance
indemnity in case of loss# the right of the usufructuary being
limited to the legal interest on the alue of the land and of the
materials'
/he article is silent where the usufructuary alone pays the insurance# or
where both share in the payment thereof# as to the proportion of their
contribution to the insurance'
Art& 097& Sho,l$ the thing in ,s,"r,ct e e/#ro#riate$ "or #,lic ,se+
the owner shall e olige$ either to re#lace it with another thing o" the
same 'al,e an$ o" similar con$itions+ or to #ay the ,s,"r,ct,ary the
legal interest on the amo,nt o" the in$emnity "or the whole #erio$ o"
the ,s,"r,ct& I" the owner chooses the latter alternati'e+ he shall gi'e
sec,rity "or the #ayment o" the interest& H*17I
Art& 019& A ,s,"r,ct is not e/ting,ishe$ y a$ ,se o" the thing in
,s,"r,ct( ,t i" the a,se sho,l$ ca,se consi$erale in!,ry to the
owner+ the latter may $eman$ that the thing e $eli'ere$ to him+
in$ing himsel" to #ay ann,ally to the ,s,"r,ct,ary the net #rocee$s o"
the same+ a"ter $e$,cting the e/#enses an$ the com#ensation which
may e allowe$ him "or its a$ministration& H*)9I
.xpropriation of thing in usufruct
/he expropriation of the thing does not extinguish the usufruct'
Article H;K allows the substitution of the thing by an e%uialent thing'
4f the thing in usufruct is expropriated for public use# the na9ed owner is
gien the option8
o to replace it with another thing of the same alue and of
similar conditions# or
o to pay to the usufructuary the legal interest on the amount of
indemnity for the whole period of the usufruct'
4n the latter case# the owner shall gie security for the
payment of the interest'
.ffect of bad use
6ad use of the thing in usufruct does not extinguish the right of the
usufructuary whether there is security or not' /he usufruct continues'
6ut if the bad use causes considerable injury to the owner# not to the
thing itself# the owner is gien the right to demand that the thing be
deliered to him# binding himself to pay annually to the usufructuary the
net proceeds of the same# after deducting the expenses and the
compensation which may be allowed him for its administration'
/his is true where the usufructuary has not gien any security or the
security gien is insufficient especially if the owner has no property'
/he second part of the proision can hardly apply where there is
sufficient security for 0no considerable injury1 could possible be caused
to the owner'
Art& 011& A ,s,"r,ct constit,te$ in "a'or o" se'eral #ersons li'ing at the
time o" its constit,tion shall not e e/ting,ishe$ ,ntil $eath o" the last
s,r'i'or& H*)1I
(sufruct in faor of seeral persons
(sufruct is extinguished by the death of the usufructuary unless a
contrary intention appears'
/he usufruct is not extinguished until the death of the last surior' As
the usufruct continues# the rights of any usufructuary who dies shall
accrue to the suriing usufructuaries'
o /he only exception is when the title constituting the usufruct
proides otherwise as where the usufruct is constituted in a list
and will and testament and the testator ma9es a contrary
proision'
Art& 01)& C#on the termination o" the ,s,"r,ct+ the thing in ,s,"r,ct
shall e $eli'ere$ to the owner+ witho,t #re!,$ice to the right o"
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retention #ertaining to the ,s,"r,ct,ary or his heirs "or ta/es an$
e/traor$inary e/#enses which sho,l$ e reim,rse$& A"ter the $eli'ery
has een ma$e+ the sec,rity or mortgage shall e cancelle$& H*))aI
?bligation of usufructuary to return the thing upon termination of the usufruct
(pon the termination of the usufruct# it is the duty of the usufructuary to
return the property to the na9ed owner'
/he usufructuary is expressly granted the right of retention until he is
reimbursed for the amount of taxes leied on the capital and for the
increase in alue caused by extraordinary repairs'
Ee has no right to reimbursement for useful improements'
TITLE VII A EASEMENTS OR SERVITC8ES
:;APTER ONE
EASEMENTS IN >ENERAL
+.)/4?= ?=. 2 D4CC.$.=/ N4=D+ ?C .A+.M.=/+
Art& 01.& An easement or ser'it,$e is an enc,mrance im#ose$ ,#on
an immo'ale "or the ene"it o" another immo'ale elonging to a
$i""erent owner&
The immo'ale in "a'or o" which the easement is estalishe$
is calle$ the $ominant estate( that which is s,!ect thereto+ the ser'ient
estate& H*.9I
.asement or seritude defined
.asement or seritude has been defined as a 0real right constituted on
anothers property# corporeal and immoable# by irtue of which the
owner of the same has to abstain from doing or to allow somebody else
to do something on his property for the benefit of another thing or
person'1
/he definition in this article is not complete# being limited to real
easement'
4n iew of the next article which refers to personal easement# the term
may be defined as an encumbrance imposed upon an immoable for
the benefit of another immoable belonging to a different owner or for
the benefit of a community or one or more persons to whom the
encumbered estate does not belong by irtue of which the owner is
obliged to abstain from doing or to permit a certain thing to be done on
his estate !whew'"
.asement and seritude distinguished
&' 4t is said that easement refers to the right enjoyed by one# and
seritude# the burden imposed upon another'
*' /he two terms are used synonymously in the )iil )ode although it is
more partial to easement'
)haracteristics of easement
&' 4t is a real right but will affect third persons only when duly registered5
*' 4t is enjoyed oer another immoable# neer on ones own property5
-' 4t inoles two neighboring estates# the dominant to which a right
belongs and the serient upon which an obligation rests5
@' 4t is inseparable from the estate to which it is attached and# therefore#
cannot be alienated independently of the estate !Art H&I"
<' 4t is indiisible for it is not affected by the diision of the estate between
two or more persons !Art H&D"
H' 4t is a right limited by the needs of the dominant owner or estate# without
possession5
I' 4t cannot consist in the doing of an act unless the act is accessory in
relation to a real easement5 and
D' 4t is a limitation on the serient owners rights of ownership for the
benefit of the dominant owner5 and therefore# it is not presumed'
.asement gies the holder an incorporeal right on the land but grants
no title thereto' /herefore# an ac9nowledgment of the easement is an
admission that the property belongs to another'
.asement established only on immoable
.asements cannot be imposed on personal property but only on
immoable !which must be understood in its common and not in its legal
sense"'
What the law treats of are not immoables as defined by the )iil )ode
but only those which are so by their nature !are really incapable of being
moed" such as lands# roads# buildings# and constructions adhering to
the soil'
=ature of benefit to dominant estate
.asement can exist only when the serient and dominant estates
belong to different owners'
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/here can be no easement without a burden on an estate for the benefit
of another immoable belonging to a different owner or of a person or
group of persons'
/he dominant estate cannot be the serient estate at the same time'
4t is not essential that the benefit be ery great# it being sufficient that
there is a determinate use or utility in faor of a dominant estate oer an
estate belonging to another'
/he important thing is that it exists and can be exercised'
?n the other hand# the benefit should not be so great as to be
inconsistent with the general right of ownership of a person# amounting
to a ta9ing of his property'
.asement :ease
$eal right# whether registered or not#
and whether it is real or personal
$eal right only when it is registered#
or when its subject is real property
and the duration exceeds one year
4mposed only on real property May inole real or personal property
:imited right to the use of real
property of another but without the
right of possession !0without any
exclusie possession or occupation1"
:imited right to both the possession
and use of anothers property
!0exclusie possession1"
.asement (sufruct
4mposed only on real property May inole real or personal
property
:imited to a particular or specific use
of the serient estate
4ncludes all the uses and fruits of the
property
=on7possessory right oer an
immoable
$ight of possession in an immoable
or moable
=ot extinguished by the death of the
dominant owner
As a rule# extinguished by the death
of the usufructuary
6oth usufruct and easement are real rights# whether registered or not#
and are transmissible'
)ase doctrines
/he power of eminent omain encompasses not only the ta9ing of title to
and possession of the expropriated property but li9ewise coers een
the imposition of a mere burden upon the owner of the condemned
property' Where the nature of the easement practically depries the
owners of the propertys normal beneficial use# notwithstanding the fact
that the expropriator only occupies the sub7terrain portion# it is liable to
pay not merely an easement fee but rather the full compensation for
land' !=3) 4brahim"
Art& 014& Ser'it,$es may also e estalishe$ "or the ene"it o" a
comm,nity+ or o" one or more #ersons to whom the enc,mere$ estate
$oes not elong& H*.1I
)lassifications of easement
&' As to recipient of benefit
a' $eal 2 when the easement is in faor of another
immoable !Art H&-"5 or
b' 3ersonal 2 when it is in faor of a community or of one
more persons !Art H&@"' /hus# it maybe public or priate'
*' As to its source
a' Foluntary 2 when the easement is established by the will
or agreement of the parties or by a testator !Art H&K"5
b' :egal 2 when it is imposed by law either for public use or
in the interest of priate persons !Art H-I7HDI"5 or
c' Mixed 2 when it is created partly by will or agreement and
partly by law'
-' As to its exercise
a' )ontinuous 2 see Article H&<5 or
b' Discontinuous
@' As to whether or not its existence is indicated
a' Apparent5 or
b' =on7apparent
<' As to the duty of serient owner
a' 3ositie 2 see Article H&H5 or
b' negatie
$eal and personal seritudes
A seritude may be established for the benefit8
&' of a particular estate and conse%uently# for its owner5 !real or
predial"
*' of a person or group of persons without being the owner or owners
of a dominant estate' !personal"
(nli9e a real easement# personal easement does not re%uire two
immoables' An example of a personal easement is a right of way
granted to certain persons and their family# friends# serants# and jeeps'
/he seritude is for the benefit alone of the persons enumerated and
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not a predial seritude that inures to the benefit of whoeer owns the
dominant estate' Eence# the owner of the serient estate may refuse to
extend the said easement to the successors7in7interest of the persons
for whose benefit the seritude exists' !Aabonete Monteerde"
3ublic and priate easements
3ersonal easements may be8
&' 3ublic# if it is ested in the public at large or in some class of
indeterminate indiiduals !li9e the right of the public to a highway
oer a land of priate ownership"
*' 3riate# if it is ested in a determinate indiidual or certain persons
!li9e a right of way ested in the owner of one parcel of land oer an
adjoining parcel of land"
)ase doctrines
When a person is allowed to construct his house on the land of another
to facilitate his gathering of fruits# this would be in the nature of a
personal easement under Article H&@' !Alcantara $eta"
Art& 01*& Easements may e contin,o,s or $iscontin,o,s+ a##arent or
non1a##arent&
:ontin,o,s easements are those the ,se o" which is or may e
incessant+ witho,t the inter'ention o" any act o" man&
8iscontin,o,s easements are those which are ,se$ at
inter'als an$ $e#en$ ,#on the acts o" man&
A##arent easements are those which are ma$e -nown an$ are
contin,ally -e#t in 'iew y e/ternal signs that re'eal the ,se an$
en!oyment o" the same&
Nona##arent easements are those which show no e/ternal
in$ication o" their e/istence& H*.)I
)ontinuous and discontinuous easements
Cor an easement to be continuous# it is not necessary that the use be
incessant5 it is sufficient that the use may be so'
o .xamples are the right to support a beam on anothers wall
which really exists continuously and the right of a%ueduct
which may be used only on certain days depending on the
need for water but which is continuous since its use does not
depend upon the interention of man'
An example of discontinuous seritude is the right of way which is used
at interals because it is physically impossible that man shall continually
poass oer the way'
/he easement itself# whether continuous or discontinuous# exists
continuously whether it is being used or not# but its exercise may be
continuous or discontinuous# or there may be no exercise at all'
/he distinction lies in the fact that in continuous easements# the
exercise or enjoyment can be had without the interention of man while
in discontinuous easements# such exercise or enjoyment re%uires the
interention of man'
4n both easements# the benefit and burden exists from the moment the
easements are created'
)ase doctrine
.asements are either continuous or discontinuous according to the
manner they are exercisd# not according to the presence of apparent
signs or physical indications of the existence of such easements' /hus#
an easement is continuous if its use is# or may be# incessant without the
interention of any act of man# li9e the easement of drainage5 and it is
discontinuous if it is used at interals and depends on the act of man#
li9e the easement of right of way' !6ogo7Medellin )A"
Apparent and non7apparent easements
Cor an apparent easement# it is not necessary that its sign be seen5 it is
sufficient if it may be seen or 9nown on inspection'
o /he sign or signs may be encountered in the dominant or
serient estate# according to the circumstances'
An example of a non7apparent easement is a right of way when there is
no indication of its existence'
A right of way is apparent when there is a isible road or path to show
its exercise'
4n general# negatie easements are non7apparent'
Art& 010& Easements are also #ositi'e or negati'e&
A #ositi'e easement is one which im#oses ,#on the owner o"
the ser'ient estate the oligation o" allowing something to e $one or
o" $oing it himsel"+ an$ a negati'e easement+ that which #rohiits the
owner o" the ser'ient estate "rom $oing something which he co,l$
law",lly $o i" the easement $i$ not e/ist& H*..I
3ositie and negatie easements
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A positie easement is one which imposes upon the owner of the
serient estate the obligation of allowing something to be done or of
doing it himself'
o .xample8 the easement of which the right of way which
imposes upon the owner of the serient estate the duty to allow
the use of said way'
A negatie easement is that which prohibits the owner of the serient
estate from doing something which he could lawfully do if the easement
did not exist'
o .xample8 easement of light and iew whereby the owner of the
serient estate is prohibited from obstructing the passage of
light' 4t may also be positie depending upon the manner by
which it is exercised'
When the opening or window is made on anothers wall !wall of serient
estate" or on a party wall# the easement ac%uired is positie because
the owner of the wall allows the seritude to burden his wall'
4f the window is through ones own wall !wall of the dominant estate"
which does not extend oer anothers property !serient estate"# the
easement is negatie'
)ase doctrines
$estrictie coenants are not# strictly spea9ing synonymous with
easements# but a case of seritudes or burdens# sometimes
characteriGed to be negatie easements or reciprocal negatie
easements' =egatie easement is the most common easement created
by coenant or agreement whose effect is to preclude the owner of the
land from doing an act# which# if no easement existed# he would be
entitled to do' !Cajardo Creedom to 6uild"
)ourts generally iew restrictie coenants with disfaor# but still sustain
them where the coenants are reasonable# not contrary to law# or not in
restraint of trade' 4f the coenant aims to promote aesthetics# health#
and priacy or to preent oercrowding# then the coenant must be
sustained'
A suit for e%uitable enforcement of a restrictie coenant can only be
made by one for whose benefit it is intended' 4t is thus not normally
enforceable by one who has no right nor interest in the land for the
benefit of which the restriction has been imposed' /hus# deeloper of a
subdiision can enforce restrictions# een as against remote grantees of
lots# only if he retains part of the land' !Cajardo Creedom"
Art& 012& Easements are inse#arale "rom the estate to which they
acti'ely or #assi'ely elong& H*.4I
,uality of inherence or inseparability
+eritudes are inseparable from the estate to which they actiely or
passiely belong# being accessory things whose ery existence
depends upon the principal thing !immoable"'
Eence# they are intransmissible in the sense that they cannot be
alienated or mortgaged independently of the estate'
An easement cannot be the object of usufruct because it has no
existence independent of the immoable to which it attaches'
4f the dominant estate is alienated# such alienation carries with it also
the easements established in its faor een if they are not annotated as
an encumbrance on the certificate of title'
An easement is extinguished or cut7off# howeer# by the registration of
the serient estate under the /orrens system without the easement
being annotated on the corresponding certificate of title' A registered
owner or subse%uent purchaser of registered land holds his certificate of
title free from all encumbrances except only those noted in said
certificate and the statutory liens'
o 6ut if the existence of an easement was 9nown to the
transferee or grantee of the serient estate# such 9nowledge is
e%uialent to registration'
)ase doctrines
A endee on real property on which a seritude or an easement of right
of way exists does not ac%uire the right to close that seritude to
preent the neighboring estates from using it' !+olid Manila 6io Eong"
Art& 015& Easements are in$i'isile& I" the ser'ient estate is $i'i$e$
etween two or more #ersons+ the easement is not mo$i"ie$+ an$ each
o" them m,st ear it on the #art which corres#on$s to him&
I" it is the $ominant estate that is $i'i$e$ etween two or more
#ersons+ each o" them may ,se the easement in its entirety+ witho,t
changing the #lace o" its ,se+ or ma-ing it more ,r$ensome in any
other way& H*.*I
,uality of indiisibility
.asement as a right is indiisible'
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Accordingly# the partition between two or more persons of either the
serient or dominant estate does not affect the existence of the
seritude which continues in its entirety'
4f the serient estate is diided# each new owner must bear the
easement but only with respect to the part corresponding to him'
4f the dominant estate is diided# each owner can exercise the whole
easement oer each of the serient estates subject to the condition that
the place of easement shall not be changed and the easement shall not
be more burdensome'
o A person entitled to a right of way may do whateer is
necessary to ma9e it conenient for his use but he cannot
deiate therefrom' /he easement is not considered made more
burdensome by the mere increase in the owners of the
dominant estates'
Art& 017& Easements are estalishe$ either y law or y the will o" the
owners& The "ormer are calle$ legal an$ the latter 'ol,ntary easements&
H*.0I
:egal and oluntary easements
/his article gies the two 9inds of easements according to source'
/he courts cannot impose or constitute any seritude where none
existed'
/hey can only declare its existence if in reality it exists by law or by the
will of the owners'
/here are no judicial easements'
Foluntary easements must be recorded in the $egistry of 3roperty in
order not to prejudice third persons'

+.)/4?= /W? 7 M?D.+ ?C A),(4$4=G .A+.M.=/+

Art& 0)9& :ontin,o,s an$ a##arent easements are ac6,ire$ either y
'irt,e o" a title or y #rescri#tion o" ten years& H*.2aI
Modes of ac%uiring easements
&' 6y title' All easements'
a' )ontinuous and apparent easements !Art H*;"
b' )ontinuous and non7apparent easements !Art H**"
c' Discontinuous easements# whether apparent or non7
apparent
*' 6y prescription of ten years 2 only continuous and apparent easements
-' 6y deed of recognition !Art H*-"
@' 6y final judgment
<' 6y apparent sign established by the owner of two adjoining estates !Art
H*@"
Ac%uisition by title or prescription
?nly continuous and apparent easements may be ac%uired either by
irtue of a title or by prescription in &; years'
6y title# it refers to the juridical act which gies birth to the easement#
such as law# donation# contract and will of the testator'
/his article fixes ten years as the period of prescription# regardless of
good faith or bad faith of the possessor and whether or not he has just
title'
/he general rules on prescription do not apply# the only re%uirement
being that there be aderse possession of the easement for ten years'
)ase doctrines
3rescription as a mode of ac%uisition re%uires the existence of the
following8
*' )apacity to ac%uire by prescription
-' /hing capable of ac%uisition by prescription
@' 3ossession of the thing under certain conditions
(nder claim of title !en concepto de dueno"
3ossession not merely tolerated by owner
<' :apse of time proided by law !=ational 3ower )orp )ampos"
Art& 0)1& In or$er to ac6,ire y #rescri#tion the easements re"erre$ to
in the #rece$ing article+ the time o" #ossession shall e com#,te$
th,s% in #ositi'e easements+ "rom the $ay on which the owner o" the
$ominant estate+ or the #erson who may ha'e ma$e ,se o" the
easement+ commence$ to e/ercise it ,#on the ser'ient estate( an$ in
negati'e easements+ "rom the $ay on which the owner o" the $ominant
estate "ora$e+ y an instr,ment ac-nowle$ge$ e"ore a notary #,lic+
the owner o" the ser'ient estate+ "rom e/ec,ting an act which wo,l$ e
law",l witho,t the easement& H*.5aI
)omputation of the prescriptie period
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4f the easement is positie# the period is counted from the day on which
the owner of the dominant estate began to exercise it
o Crom the day a window was built in a party wall
4f the easement is negatie# from the day on which a notarial prohibition
was made on the serient estate
(nder article H**# non7apparent easements may not be ac%uired by
prescription' =egatie easements are essentially non7apparent'
Eoweer# article H*& proides the prescriptie period for negatie
easements' /he notarial prohibition may be ta9en as ma9ing the
easement apparent# and therefore# prescriptible'
)omputation in case of easement of light and iew
4f made on ones own wall and the wall does not extend oer the
property of another# the easement is negatie because the owner is
merely exercising his inherent right of dominion and not an easement'
o /he serient owner cannot close it up5 otherwise he will be
liable for trespass'
o 6ut the negatie easement is not automatically ested' /he
owner must ma9e the prohibition re%uired upon the proprietor
of the adjoining land or tenement to preent him from
obstructing the light and iew'
o 4f the latter consents to such prohibition and the period fixed by
law expires# the easement will be ac%uired by prescription'
/here is no true easement for as long as the right to prohibit its
exercise exists'
4f made through a party wall or on ones own wall which extends oer
the neighboring estate# the easement ac%uired is positie because the
owner of the latter estate who has a right to close it up allows an
encumbrance on the property'
o /he period of prescription shall be counted from the time of the
opening of the window'
Art& 0))& :ontin,o,s non1a##arent easements+ an$ $iscontin,o,s
ones+ whether a##arent or not+ may e ac6,ire$ only y 'irt,e o" a title&
H*.7I
Ac%uisition only by title
)ontinuous and apparent easements are the only easements that can
be ac%uired by prescription because they are the only ones the
possession of which fulfills two important re%uisites re%uired by law for
prescription 2 possession be public and continuous'
/he easements mentioned in Art H** may be ac%uired by title# not by
prescription because their possession or exercise is either not public
!non7apparent" such as easement of lateral and subjacent support# or it
is public but not continuous or uninterrupted !discontinuous"# li9e a right
of way if there is a isible path'
Eoweer# for legal purposes# the easement of a%ueduct shall be
considered as continuous and apparent# although it is not really so'
Art& 0).& The asence o" a $oc,ment or #roo" showing the origin o" an
easement which cannot e ac6,ire$ y #rescri#tion may e c,re$ y a
$ee$ o" recognition y the owner o" the ser'ient estate or y a "inal
!,$gment& H*49aI
Art& 0)4& The e/istence o" an a##arent sign o" easement etween two
estates+ estalishe$ or maintaine$ y the owner o" oth+ shall e
consi$ere$+ sho,l$ either o" them e alienate$+ as a title in or$er that
the easement may contin,e acti'ely an$ #assi'ely+ ,nless+ at the time
the ownershi# o" the two estates is $i'i$e$+ the contrary sho,l$ e
#ro'i$e$ in the title o" con'eyance o" either o" them+ or the sign
a"oresai$ sho,l$ e remo'e$ e"ore the e/ec,tion o" the $ee$& This
#ro'ision shall also a##ly in case o" the $i'ision o" a thing owne$ in
common y two or more #ersons& H*41aI
Alienation by same owner of two estates with sign of existence of seritude
/his contemplates a situation where two estates between which there
exists an apparent sign !li9e a window or road" of an easement belong
to the same owner'
What the law re%uires is that the sign indicates the existence of a
seritude although there is no true seritude there being only one owner
4n case the owner alienates either of them or both with the result that
the ownership thereof is diided# the easement shall 0continue1 unless
the contrary has been stipulated in the title of coneyance of either of
them or the sign remoed before the execution of the deed
o /he existence of the apparent sign is e%uialent to a title if no
objection has been made by the serient owner for an implied
contract that the easement should be constituted is deemed to
exist between the new owners
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o /he dominant owner can oppose the owner of the serient
estate from doing anything which would be inconsistent with
his obligation to respect the easement
4f the lots are owned by two different owners# a
notarial prohibition should be effected !Atty Abrenica"
/his article applies in case of the diision of a common property by the
co7owners as the effect is the same as an alienation# or there is only
one estate and a part thereof is alienated'
/his article is not applicable in case the two estates or portions of the
same estate remain or continue to be in the same owner after alienation
or partition
)ase doctrine
Where two adjoining estates were formerly owner by just one person
who introduced improements on both# such that the wall of the house
constructed on the first estate extends to the wall of the camarin on the
second estate5 and at the time of the sale of the first estate# there
existed on the wall of the house# doors and windows !which sere as
passages for light and iew"# there being no proision in the deed of
sale that the easement of light and iew will not be established# the case
is coered by H*@'
/he existence of doors and windows on the aforesaid wall of the house
is e%uialent to a title that characteriGes its existence'
6ut while the law declares that the easement is to 0continue1# the
easement actually arises for the first time only upon alienation of
another estate# inasmuch as before that time there is no easement to
spea9 of# there being but one owner of both estates' !Gargantos /an
Manon"
Art& 0)*& C#on the estalishment o" an easement+ all the rights
necessary "or its ,se are consi$ere$ grante$& H*4)I
$ights granted by easement
All easements carry with them all the rights necessary for their use and
exercise
+ince these accessory rights or accessory easements exist solely by
irtue of and for the use of the seritude which can be considered as the
principal one# they cease upon the termination of the seritude
Art& 0)0& The owner o" the $ominant estate cannot ,se the easement
e/ce#t "or the ene"it o" the immo'ale originally contem#late$&
Neither can he e/ercise the easement in any other manner than that
#re'io,sly estalishe$& HnI
4mmoable to be benefited by easement# and manner of its exercise
/he rule in the first sentence is just because if the owner of the
dominant estate is allowed to use the seritude for the benefit of other
adjoining lands subse%uently ac%uired# or for others# that would ma9e
the easement more onerous and beyond the intention of the parties
4f the easement has been constituted in general terms# only the rights
which are reasonably necessary and conenient for the use
contemplated and would case the least burden to the serient estate are
granted'
Where the purpose of the easement or the manner of its exercise is
defined by the title creating it# the exercise of the easement must be
consistent with such purpose or manner
+.)/4?= /E$.. 2 $4GE/+ A=D ?6:4GA/4?=+ ?C /E.
?W=.$+ ?C /E. D?M4=A=/ A=D +.$F4.=/ .+/A/.+

Art& 0)2& The owner o" the $ominant estate may ma-e+ at his own
e/#ense+ on the ser'ient state any wor-s necessary "or the ,se an$
#reser'ation o" the ser'it,$e+ ,t witho,t altering it or ren$ering it
more ,r$ensome&
3or this #,r#ose he shall noti"y the owner o" the ser'ient estate+ an$
shall choose the most con'enient time an$ manner so as to ca,se the
least incon'enience to the owner o" the ser'ient estate& H*4.aI
What are the rights of the dominant owner?
&' .xercise all the rights necessary for the use of the easement
*' Ma9e on the serient estate all wor9s necessary for the use and
preseration of the seritude
-' $enounce the easement if he desires to exempt himself from the
contribution to necessary expenses
@' As9 for mandatory injunction to preent impairment of his of the
easement
What are the obligations of the dominant owner?
&' )annot alter the easement or render it more burdensome
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*' =otify the serient owner of wor9s necessary for the use and
preseration of the seritude
-' )hoose the most conenient time and manner in ma9ing the necessary
wor9s as to cause the least inconenience to the serient owner
@' )ontribute to the necessary expenses if there are seeral dominant
estates in proportion to the benefits deried from the wor9s
What are the rights of the serient owner?
&' $etain the ownership of the portion of the estate on which the easement
is established
*' Ma9e use of the easement# unless there is an agreement to the contrary
-' )hange the place or manner of the use of the easement# proided it be
e%ually conenient
What are the obligations of the serient owner?
&' )annot impair the use of the easement
*' )ontribute to the necessary expenses in case he uses the easement#
unless there is an agreement to the contrary
$ight of the dominant owner to ma9e necessary wor9s
$ight granted by H*I is subject to the following conditions8
&' Wor9s shall be at his expense and are necessary for the use and
preseration of the seritude
*' /hey do not alter or render the seritude more burdensome5
-' /he dominant owner# before ma9ing the wor9s# must notify the
serient owner# and
@' /hey shall be done at the most conenient time and manner as to
cause the lease inconenience to the serient owner
)ase doctrine
!Goldcrest )ypress Gardens"
Art& 0)5& Sho,l$ there e se'eral $ominant estates+ the owners o" all o"
them shall e olige$ to contri,te to the e/#enses re"erre$ to in the
#rece$ing article+ in #ro#ortion to the ene"its which each may $eri'e
"rom the wor-& Any one who $oes not wish to contri,te may e/em#t
himsel" y reno,ncing the easement "or the ene"it o" the others&
I" the owner o" the ser'ient estate sho,l$ ma-e ,se o" the
easement in any manner whatsoe'er+ he shall also e olige$ to
contri,te to the e/#enses in the #ro#ortion state$+ sa'ing an
agreement to the contrary& H*44I
?bligation to contribute to expenses of necessary wor9s
/his article contemplates seeral dominant estates'
All the owners shall share the expenses in proportion to the benefits
deried by each estate from the wor9s and not in proportion to their
respectie interests' /he benefits shall be presumed e%ual in the
absence of any agreement or proof to the contrary' /he easement of
right of way ordinarily gies the same benefit
An owner may exempt himself from contributing to the expenses by
renouncing the easement in faor of the others'
What about the serient owner? Well# he shall be obliged to contribute
to the expense except when there is a stipulation to the contrary# should
he ma9e use of the easement in any manner whatsoeer' 4f he bound
himself to bear the cost of the wor9# he may free himself form the
obligation by renouncing his property to the dominant owner !Art HK-"
Art& 0)7& The owner o" the ser'ient estate cannot im#air+ in any manner
whatsoe'er+ the ,se o" the ser'it,$e&
Ne'ertheless+ i" y reason o" the #lace originally assigne$+ or
o" the manner estalishe$ "or the ,se o" the easement+ the same
sho,l$ ecome 'ery incon'enient to the owner o" the ser'ient estate+
or sho,l$ #re'ent him "rom ma-ing any im#ortant wor-s+ re#airs or
im#ro'ements thereon+ it may e change$ at his e/#ense+ #ro'i$e$ he
o""ers another #lace or manner e6,ally con'enient an$ in s,ch a way
that no in!,ry is ca,se$ therey to the owner o" the $ominant estate or
to those who may ha'e a right to the ,se o" the easement& H*4*I
?bligation of serient owner not to impair seritude
/he serient owner may abstain from constructing wor9s or performing
any act which will impair# in any manner whatsoeer# the use of the
seritude'
An injunction lies at the instance of the dominant owner to prohibit the
serient owner from impairing the use of the seritude
$ight of serient owner to change place or manner of easement
While the serient estate cannot impair the use of the seritude# he may
change at his expense the place or manner for its use proided the
following re%uisites are present8
&' /he place or manner has become ery inconenient to him or
preents him from ma9ing important wor9s thereon5
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*' Ee offers another place or manner e%ually conenient5 and
-' =o injury is caused by the chance to the dominant owner or to
whoeer may hae a right to the use of the easement'
Art& 0.9& The owner o" the ser'ient estate retains the ownershi# o" the
#ortion on which the easement is estalishe$+ an$ may ,se the same
in s,ch a manner as not to a""ect the e/ercise o" the easement& HnI
$ight of serient owner to use easement
/he serient owner preseres his dominion oer the portion of his estate
on which the easement is established
/his is true although the indemnity consists of the alue of the land
occupied and the amount of the damage to the serient estate !Art H@K"
Ee may use the easement subject to the condition that he does not
impair the rights of the dominant owner'
)ase doctrine
When the trial court found that the persons right to continue to use the
septic tan9 ceased upon the subdiision of the land and its subse%uent
sale to different owners who do not hae the same interest# the
+upreme )ourt said that this is contrary to law' !/anedo 6ernad"
+.)/4?= C?($ 2 M?D.+ ?C .Q/4=G(4+EM.=/ ?C
.A+.M.=/+
Art& 0.1& Easements are e/ting,ishe$%
H1I =y merger in the same #erson o" the ownershi# o" the
$ominant an$ ser'ient estates(
H)I =y non,ser "or ten years( with res#ect to $iscontin,o,s
easements+ this #erio$ shall e com#,te$ "rom the $ay on which they
cease$ to e ,se$( an$+ with res#ect to contin,o,s easements+ "rom
the $ay on which an act contrary to the same too- #lace(
H.I <hen either or oth o" the estates "all into s,ch con$ition
that the easement cannot e ,se$( ,t it shall re'i'e i" the s,se6,ent
con$ition o" the estates or either o" them sho,l$ again #ermit its ,se+
,nless when the ,se ecomes #ossile+ s,""icient time "or #rescri#tion
has ela#se$+ in accor$ance with the #ro'isions o" the #rece$ing
n,mer(
H4I =y the e/#iration o" the term or the ",l"illment o" the
con$ition+ i" the easement is tem#orary or con$itional(
H*I =y the ren,nciation o" the owner o" the $ominant estate(
H0I =y the re$em#tion agree$ ,#on etween the owners o" the
$ominant an$ ser'ient estates& H*40aI
What are the modes of extinguishment of easements?
&' 6y merger
4t is not necessary that it be with respect to the full extent of the
tenement but only with respect to that part affected by the seritude
or that part for the benefit of which the seritude was established
/he merger must be absolute and complete in one and the same
person and not by irtue of other real rights less than full
ownership' !where the merger is temporary# as when it is subject to
a resolutory condition# there is only a suspension but not an
extinguishment of the seritude'"
4f the serient owner becomes a co7owner of the dominant estate#
there is no merger for he has ac%uired only a part interest therein'
4f the dominant sells a retro the whole immoable to the serient#
the easement is not extinguished but only suspended' /he
seritude is reied when the dominant redeems the property'
What if the dominant sells absolutely to the seritude# buys it bac9#
then sells it to a third person' /here is no reial here because it
was already unconditionally extinguished by the sale of the property
to the serient' 6ut if the sale to serient by dominant was
rescinded or annulled# there is no extinguishment by merger'
*' 6y non7user for ten years
/his mode is applicable only to easements that hae been in use
and later abandoned# for one cannot discontinue using what one
has neer used
+ome legal easements !natural drainage" may be extinguished by
non7user# but only with respect to the actual form or manner in
which they had been exercised# and the right or the power to claim
the exercise of legal easements does not prescribe# as occurs
especially in the case of the right of way and easement of
a%ueduct' !Crancisco 3aeG"
4f the easement is discontinuous !right of way"# the period of ten
years shall be computed from the day it ceased to be used'
4f continuous !natural drainage"# from the day on which an act
contrary to the same too9 place !li9e construction of a dam which
bloc9s natural drainage"
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/he non7use must be oluntary on the part of the dominant owner
and not due to fortuitous eents beyond his control unless the non7
use is due to the impossibility of use under no -
Whats the basis? Well# its presumptie renunciation'
o +o# the proof of non7user must be undubitable particularly
where the easement is perpetual in character because of
its annotation in the /orrens title' /hus# the mere non7use
of a passageway by the dominant owner who has gained
direct access to another way does not extinguish the
easement of right of way' 4n the absence of any eidence
that could point to mutual agreement to the discontinuance
of the easement annotated on the title# its continued
existence must be upheld
/he use by a co7owner of the dominant estate benefits all the other
co7owners and preents prescription as to them'
-' 4mpossibility of use
When the condition of either or both of the estates which ma9es
impossible the use of the easement is irreparable# whether caused
by fortuitous eents or not# the seritude is absolutely extinguished
o ?therwise# the impossibility of use merely suspends the
seritude until such time when it can be used again
@' 6y expiration of term or fulfillment of resolutory condition
<' 6y renunciation
/he renunciation or waier must be specific# clear and express'
/his is particularly true for discontinuous easements such as right
of way'
/he waier must be at least such as may be obiously gathered
from positie acts 2 if not formal and solemn' /he mere refraining
from claiming the right# without any positie acts imply a real
waier# is not sufficient for the purpose although it may constitute
non7use' A clear case of implied waier is the act of coering up a
window by the dominant owner and yet this act does not ipso %acto
extinguish the easement# but only seres to ma9e the starting point
for prescription' !Crancisco 3aeG"
Where the easement is in faor of a particular group of persons# the
oluntary renunciation thereof by some of them will not affect the
right of the others'
H' 6y redemption
it must be by irtue of an agreement between the owners of the
dominant and serient estates under which the seritude would be
extinguished
I' 6y other causes
Annulment# rescission# abandonment# etc
$egistration of the serient estate under the /orrens system without
the easement being annotated in the title
+ome case doctrines
Alienation of the dominant and serient estates to different persons is
not one of the grounds for extinguishment of the easement' !/anedo
6ernad"
Absent a statement abolishing or extinguishing the easement# then the
easement is continued by operation of law' !/anedo 6ernad"
An easement is perpetual in character when it is annotated on all the
transfer certificates of title issued' +ince there is no eidence that would
point to a mutual agreement between any of the parties with respect to
the discontinuance or obliteration of the easement annotated on the
titles# the continued existence of the easement must be upheld and
respected' !6enedicto )A"
=68 When the easement is a legal easement# it need not be annotated
in the title' A legal easement is one mandated by law# constituted for
public use or for priate interest and becomes a continuing property
right' 4t is inseparable from the estate to which it belongs' +o# theres no
need to annotate in the title' !Fillanuea Felasco"
A oluntary easement of right of way# li9e any other contract# could be
extinguished only by mutual agreement or by renunciation of the owner
of the dominant estate' As it is li9e any other contract# it is generally
effectie between the parties# their heirs and assigns# except in case
where the rights and obligations arising from the contract are not
transmissible by their nature# or by stipulation# or by proision of law'
!(nisource )hung# *;;K"
4f there are easement or other rights appurtenant to a parcel of
registered land which for any reason hae failed to be registered# such
easement or rights shall remain so appurtenant notwithstanding such
failure# and shall be held to pass with the land until cut off or
extinguished by the registration of the serient estate or in any other
manner' An easement is cut off or extinguished by the registration of the
serient estate under the /orrens system without the easement being
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annotated on the corresponding certificate of title# pursuant to +ec -K of
Act @KH !3urugganan 3aredes"
o .Q).3/4?=8 When the person who registers the serient
estate has A)/(A: 9nowledge that an easement exists'
!?ne cant rely on the face of the title if one has actual
9nowledge of facts which should compel him to do further
inestigation"
Art& 0.)& The "orm or manner o" ,sing the easement may #rescrie as
the easement itsel"+ an$ in the same way& H*42aI
3rescription of form or manner of using easement
/he form or manner !or mode" of using the easement is different from
the easement itself or the right to exercise it
6oth may be lost by prescription
+ome legal easements# howeer# do not prescribe but the form or
manner of using all easements including legal easements may be lost or
ac%uired by prescription
Art& 0..& I" the $ominant estate elongs to se'eral #ersons in common+
the ,se o" the easement y any one o" them #re'ents #rescri#tion with
res#ect to the others& H*45I
Where dominant estate owned in common
.asements are indiisible
Eence# the use by a co7owner inures to the benefit of all the other co7
owners and preents prescription as to shares of the latter
4n other words# the use by a co7owner is deemed to be used by each
and all the co7owners
:;APTER )
LE>AL EASEMENTS

+.)/4?= ?=. 2 G.=.$A: 3$?F4+4?=+

Art& 0.4& Easements im#ose$ y law ha'e "or their o!ect either #,lic
,se or the interest o" #ri'ate #ersons& H*47I
What is legal easement?
:egal easements are easements imposed or mandated by law# and
which hae for their object8
o either public use or
o the interest of priate properties
/hey become a continuing property right
Ninds of legal easements
&' 3ublic legal easements or those for public or communal use
*' 3riate legal easements or those for the interest of priate persons or
for priate use# which include those relating to
a' Waters
b' $ight of way
c' 3arty wall
d' :ight and iew
e' Drainage
f' 4ntermediate distances
g' Against nuisance
h' :ateral and subject support
)ase doctrine
+ee Fillanuea Felasco cited in Art H-&
Art& 0.*& All matters concerning easements estalishe$ "or #,lic or
comm,nal ,se shall e go'erne$ y the s#ecial laws an$ reg,lations
relating thereto+ an$+ in the asence thereo"+ y the #ro'isions o" this
Title& H**9I
Art& 0.0& Easements estalishe$ y law in the interest o" #ri'ate
#ersons or "or #ri'ate ,se shall e go'erne$ y the #ro'isions o" this
Title+ witho,t #re!,$ice to the #ro'isions o" general or local laws an$
or$inances "or the general wel"are&
These easements may e mo$i"ie$ y agreement o" the
intereste$ #arties+ whene'er the law $oes not #rohiit it or no in!,ry is
s,""ere$ y a thir$ #erson& H**1aI

Goerning laws
&' 3ublic legal easements 2 they are goerned primarily by the special
laws and regulations relating thereto# and by the )iil )ode !H-@7HDI"#
inclusie'
*' 3riate legal easements
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a' 6y agreement of the interested parties proided it is not
prohibited by law or injurious to a third person
b' 4n the absence of agreement# by the proisions of general
and local laws and ordinances for the general welfare5 and
c' 4n default of a and b# by articles H-@ to HDI# inclusie of
the )iil )ode'
)ase doctrine
Where the land was originally public land# and awarded by free patent
with a reseration for a legal easement of a right7of7way in faor of the
goernment# just compensation need not be paid for the ta9ing of a part
thereof for public use as an easement of a right of way# unli9e if the land
were originally priate property' !=4A )A"

+.)/4?= /W? 2 .A+.M.=/+ $.:A/4=G /? WA/.$+

Art& 0.2& Lower estates are olige$ to recei'e the waters which
nat,rally an$ witho,t the inter'ention o" man $escen$ "rom the higher
estates+ as well as the stones or earth which they carry with them&
The owner o" the lower estate cannot constr,ct wor-s which
will im#e$e this easement( neither can the owner o" the higher estate
ma-e wor-s which will increase the ,r$en& H**)I
:egal easements relating to waters
&' =atural drainage !H-I"
*' Drainage of buildings !HI@"
-' .asement on riparian ban9s for naigation# floatage# fishing# salage#
and towpath !H-D"
@' .asement of a dam !H-K# H@I"
<' .asement for drawing water or for watering animals !H@;7H@&"
H' .asement of a%ueduct !H@*7H@H"
I' .asement for the construction of a stop loc9 or sluice gate !H@I"
=atural drainage of lands
/his article imposes a natural easement upon the lower estates which
are obliged to receie the waters which naturally and without the
interention of man descend from the higher estates# as well as the
stones or earth carried by the waters'
/his easement is a continuous one and may be extinguished by non7
user for the period of &; years re%uired by law' /hus# if a di9e was
constructed by the serient owner !an act contrary to the easement"# the
action to destroy the di9e is barred if brought only after & years'
Duty of serient owner 2 the owner of the lower estate cannot construct
wor9s which will impede this easement# such as walls# ditches or
fences# or a dam which bloc9s the natural flow of the waters' /he
dominant owner may demand their remoal or destruction and recoer
damages' /he serient owner may construct wor9s to regulate the flow
of waters# but not those which will impede the easement'
Duty of dominant owner 2 the owner of the higher tenement cannot
ma9e wor9s which will increase the burden' 4f the waters are the result
of artificial deelopment# or are the oerflow from irrigation dams# or
proceed from industrial establishments recently set up# the owner of the
lower estate shall be entitled to compensation for his loss or damage'
o 6ut the dominant owner is not prohibited from cultiating
his land or constructing wor9s to regulate the descent of
the waters to preent erosion to his land and as long as he
does not impede the natural flow of the waters and
increase the burden of the lower estate# he is not liable for
damages'
$emember $emman )A? /he case with the pig shit? 4t also said that tax
returns per se could not reflect the total amount of damages suffered by a
party# as income losses from a portion of his property could be offset by any
profit deried from the rest of said property or from other sources of income'
Art& 0.5& The an-s o" ri'ers an$ streams+ e'en in case they are o"
#ri'ate ownershi#+ are s,!ect thro,gho,t their entire length an$ within
a 4one o" three meters along their margins+ to the easement o" #,lic
,se in the general interest o" na'igation+ "loatage+ "ishing an$ sal'age&
Estates a$!oining the an-s o" na'igale or "loatale ri'ers
are+ ",rthermore+ s,!ect to the easement o" tow#ath "or the e/cl,si'e
ser'ice o" ri'er na'igation an$ "loatage&
I" it e necessary "or s,ch #,r#ose to occ,#y lan$s o" #ri'ate
ownershi#+ the #ro#er in$emnity shall "irst e #ai$& H**.aI
3ublic easements on ban9s of rier
6an9s of riers and streams# whether they are of public or priate
ownership# are subject to easement of public use for8
&' =aigation
*' Cloatage
-' Cishing
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@' +alage
<' With respect to estates adjourning ban9s of naigable riers# also to
easement of towpath'
4f the land is of public ownership# there is no indemnity5 if of priate
ownership# the proper indemnity shall first be paid before it may be
occupied' $iparian owners cannot be re%uired to subject their property
to the easement for the benefit of the public without prior indemnity'
/he width of the Gone subject to the easement is - meters throughout
the entire length of the ban9 along its margin'
/he easement established by Article H-D does not apply to canals or
esteros'
Art& 0.7& <hene'er "or the $i'ersion or ta-ing o" water "rom a ri'er or
roo-+ or "or the ,se o" any other contin,o,s or $iscontin,o,s stream+
it sho,l$ e necessary to ,il$ a $am+ an$ the #erson who is to
constr,ct it is not the owner o" the an-s+ or lan$s which m,st s,##ort
it+ he may estalish the easement o" a,tment o" a $am+ a"ter #ayment
o" the #ro#er in$emnity& H**4I
Abutment of buttress of a dam
A person who needs to build a dam to diert or ta9e water from a rier
or broo9 but is not the owner of the ban9s or lands which must support
the dam# may be allowed the easement of abutment or buttress of a
dam !estribo de presa"
Ee must see9 the permission of the owner# and in case of the latters
refustal# he must secure authority from the proper administratie agency
which will conduct the necessary inestigation in which all interested
parties are gien opportunity to be heard' 4n establishing the easement#
the proper indemnity must be paid'
Where the construction of a dam is unauthoriGed# the same can be
considered a priate nuisance and may be lawfully destroyed or
remoed by the injured landowner or by any persona acting under his
directions'
)ase doctrine
An easement of buttress can be imposed by administratie authority
with respect to land lying adjacent to public or priate waters5 but in
such case it is re%uired that an inestigation of record shall be made
before the easement of buttress is decreed' /he ma9ing of the
inestigation of record is an essential prere%uisite to the exercise of the
power' !+olis 3ujeda"
Art& 049& :om#,lsory easements "or $rawing water or "or watering
animals can e im#ose$ only "or reasons o" #,lic ,se in "a'or o" a
town or 'illage+ a"ter #ayment o" the #ro#er in$emnity& H***I
Art& 041& Easements "or $rawing water an$ "or watering animals carry
with them the oligation o" the owners o" the ser'ient estates to allow
#assage to #ersons an$ animals to the #lace where s,ch easements
are to e ,se$+ an$ the in$emnity shall incl,$e this ser'ice& H**0I
Drawing water or watering animals
/his is a personal easement which includes the accessory easement of
passage or right of way of persons and animals to the place where the
easement is to be used'
$e%uisites are8
&' Must be imposed for reasons of public use5
*' Must be in faor of a town or illage5 and
-' Must be payment of proper indemnity'
Art& 04)& Any #erson who may wish to ,se ,#on his own estate any
water o" which he can $is#ose shall ha'e the right to ma-e it "low
thro,gh the inter'ening estates+ with the oligation to in$emni"y their
owners+ as well as the owners o" the lower estates ,#on which the
waters may "ilter or $escen$& H**2I
Art& 04.& One $esiring to ma-e ,se o" the right grante$ in the #rece$ing
article is olige$%
H1I To #ro'e that he can $is#ose o" the water an$ that it is
s,""icient "or the ,se "or which it is inten$e$(
H)I To show that the #ro#ose$ right o" way is the most
con'enient an$ the least onero,s to thir$ #ersons(
H.I To in$emni"y the owner o" the ser'ient estate in the manner
$etermine$ y the laws an$ reg,lations& H**5I
Art& 044& The easement o" a6,e$,ct "or #ri'ate interest cannot e
im#ose$ on ,il$ings+ co,rtyar$s+ anne/es+ or o,tho,ses+ or on
orchar$s or gar$ens alrea$y e/isting& H**7I
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.asement of a%ueductJ what is it?>
.asement of a%ueduct is the right arising from a forced easement by
irtue of which the owner of an estate who desires to aail himself of
water for the use of said estate may ma9e such waters pass through the
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
flow'
/he easement is proided in Article H@*' 4t gies the right to ma9e water
flow through or under interening or lower estates'
$e%uisites?
/he person desiring to ma9e use of the easement must8
&' 3roe that he has the capacity to dispose of the water5
*' 3roe that the water is sufficient for the use intended5
-' +how that the proposed right of way is the most conenient and the
least onerous to third persons5 and
@' 3ay indemnity to the owner of the serient estate'
6ut where the number of years that hae elapsed since the
easement had first come into existence and the subse%uent
changes in ownership of lots inoled would ma9e it impossible
to present proof of indemnity to the owner of the serient
estate# this re%uisite has been deemed to be complied with'
!+alaGar GutierreG"
/he easement cannot be imposed oer buildings# courtyards# annexes
or gardens if the easement is for priate interest'
)ase doctrines
/he +panish :aw of Waters allows the creation of a compulsory
easement of a%ueduct for the purpose of establishing or extending an
irrigation system# and there is nothing to the contrary in the )iil )ode'
/he registration of the serient lot without the corresponding registration
of the easement of a%ueduct on the title cannot summarily terminate it
-; years thereafter where the original registered owner of the serient
lot allowed the easement to continue in spite of such non7registration'
/he least that can be said is that he either recogniGed its existence as a
compulsory seritude on his estate or oluntarily agreed to its
establishment and continuance' And subse%uent purchasers of the
serient estate cannot capitaliGe on the absence of annotation on the
title where they are aware of the existence of the easement and li9ewise
allowed it to continue for *H years after they ac%uired title' !+alaGar
GutierreG"
Art& 04*& The easement o" a6,e$,ct $oes not #re'ent the owner o" the
ser'ient estate "rom closing or "encing it+ or "rom ,il$ing o'er the
a6,e$,ct in s,ch manner as not to ca,se the latter any $amage+ or
ren$er necessary re#airs an$ cleanings im#ossile& H*09I
$ight of owner of serient estate
/he serient owner may close or fence his estate# or build oer the
a%ueduct so long as no damage is caused to the a%ueduct or the
necessary repairs and cleaning of the same are not rendered
impossible'
Ee can construct wor9s he may deem necessary to preent damage to
himself proided he does not impede or impair# in any manner
whatsoeer# the use of the easement 2 just li9e the owner of the lower
estate on which an easement of natural drainage has been established'
4f he does impair# the dominant owner may as9 for the remoal or
destruction of such wor9s with a right to indemnity for damages'
Art& 040& 3or legal #,r#oses+ the easement o" a6,e$,ct shall e
consi$ere$ as contin,o,s an$ a##arent+ e'en tho,gh the "low o" the
water may not e contin,o,s+ or its ,se $e#en$s ,#on the nee$s o" the
$ominant estate+ or ,#on a sche$,le o" alternate $ays or ho,rs& H*01I
.asement considered as continuous and apparent
Cor legal purposes# the easement is considered continuous and
apparent and therefore# may be susceptible of ac%uisitie prescription'
Art& 042& One who "or the #,r#ose o" irrigating or im#ro'ing his estate+
has to constr,ct a sto# loc- or sl,ice gate in the e$ o" the stream
"rom which the water is to e ta-en+ may $eman$ that the owners o"
the an-s #ermit its constr,ction+ a"ter #ayment o" $amages+ incl,$ing
those ca,se$ y the new easement to s,ch owners an$ to the other
irrigators& H*0)I
)onstruction of a stop loc9 or sluice gate
4n Article H-K# the purpose of building a dam is to diert water from a
rier or broo9' Eere# the purpose of the construction is to ta9e water for
irrigation# or to improe an estate'
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4n both cases# the construction is on the estate of another and proper
indemnity has to be paid' Curthermore# no damage must be caused to
third persons'
Art& 045& The estalishment+ e/tent+ "orm an$ con$itions o" the
ser'it,$es o" waters+ to which this section re"ers+ shall e go'erne$ y
the s#ecial laws relating thereto inso"ar as no #ro'ision there"or is
ma$e in this :o$e& H*0.aI
+.)/4?= /E$.. 2 .A+.M.=/ ?C $4GE/ ?C WAM

Art& 047& The owner+ or any #erson who y 'irt,e o" a real right may
c,lti'ate or ,se any immo'ale+ which is s,rro,n$e$ y other
immo'ales #ertaining to other #ersons an$ witho,t a$e6,ate o,tlet to
a #,lic highway+ is entitle$ to $eman$ a right o" way thro,gh the
neighoring estates+ a"ter #ayment o" the #ro#er in$emnity&
Sho,l$ this easement e estalishe$ in s,ch a manner that its
,se may e contin,o,s "or all the nee$s o" the $ominant estate+
estalishing a #ermanent #assage+ the in$emnity shall consist o" the
'al,e o" the lan$ occ,#ie$ an$ the amo,nt o" the $amage ca,se$ to
the ser'ient estate&
In case the right o" way is limite$ to the necessary #assage "or
the c,lti'ation o" the estate s,rro,n$e$ y others an$ "or the gathering
o" its cro#s thro,gh the ser'ient estate witho,t a #ermanent way+ the
in$emnity shall consist in the #ayment o" the $amage ca,se$ y s,ch
enc,mrance&
This easement is not com#,lsory i" the isolation o" the
immo'ale is $,e to the #ro#rietorJs own acts& H*04aI
Art& 0*9& The easement o" right o" way shall e estalishe$ at the #oint
least #re!,$icial to the ser'ient estate+ an$+ inso"ar as consistent with
this r,le+ where the $istance "rom the $ominant estate to a #,lic
highway may e the shortest& H*0*I
.asement of right of wayJ D.C4=.D>
.asement of right of way is the right granted by law to the owner of an
estate which is surrounded by other estates belonging to other persons
and without an ade%uate outlet to a public highway to demand that he
be allowed a passageway throughout such neighboring estates after
payment of the proper indemnity'
$e%uisites of the easment !based on de :eon"
&' )laimant must be an owner of enclosed immoable or one with real
right
*' =o ade%uate outlet to a public highway
-' $ight of way must be absolutely necessary
@' /he isolation must not be due to the claimants own act
<' /he easement must be established at the point least prejudicial
H' /here must be payment of proper indemnity
)laimant must be an owner of enclosed immoable or one with real right
=ot only the owner but any person who by irtue of a real right may
cultiate or use an immoable# may demand a right of way' A
usufructuary may demand a right of way'
&' A mortgagee is not entitled to demand because it is necessary that
the land be cultiated or used by irtue of a right li9e that of a
usufruct
*' A mere lessee cannot demand the legal seritude of way because
his action is against the lessor who is bound to maintain him in the
enjoyment of the lease' Eoweer# if the lessee registers the lease in
the $egistry of 3roperty# it becomes a real right# and the lessee
would then be entitled to demand the right of way'
=o ade%uate outlet to a public highway
)oers cases when there is absolutely no outlet or access# or een
when there is one# the same is not ade%uate !li9e when its dangerous#
ery costly# etc"
/he owner of the serient estate cannot obstruct the use of the
easement if the proposed new location for it is farther and is not as
conenient'
$ight of way must be absolutely necessary
/he right cannot be claimed merely for the conenience of the owner of
the enclosed estate'
?wner must show that the compulsory easement is absolutely
necessary for the normal enjoyment of his property' .en if necessary
but it can be satisfied without imposing the seritude# the same should
not be imposed'
/he easement can be established for the benefit of a tenement with an
inade%uate outlet# but not when the outlet is merely inconenient'
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4solation must not be due to the claimants own act
4f he constructs a permanent structure and effectiely bloc9s himself out
from the pubic highway# then he is stupid and he will not be granted an
easement'
/he easement must be established at the point least prejudicial to the
serient estate
/he shortest is not always the least prejudicial'
/he criterion of least prejudicial shall be obsered although the distance
may not be the shortest or is een the longest'
4n other words# this is the /.+/ 7 the one where the way is shortest and
will cause the least damage should be chosen'
o 6ut if these two circumstances do not concur in a single
tenement# the way which will cause the least damage should
be used# een if it would not be the shortest'
6etween a right of way that will demolish a house and
another one which will merely cut down a tree !yet is
a longer route to the highway"# the latter shall preail'
/he rule is different in eminent domain proceedings wherein the grantee
of the power of eminent domain can choose as he pleases# as long as it
is not capricious and wantonly injurious'
3roper indemnity
/he right can be ac%uired only after the proper indemnity has been paid'
4f the passage is of continuous and permanent nature !continuous for all
the needs of the dominant estate"# the indemnity consists of the alue of
the land occupied plus amount of damages caused to the serient
estate5 and
4f it is temporary !limited to the necessary passage for the cultiation of
the enclosed estate and for the gathering of its crops through the
serient estate"# indemnity consists in the payment of the damage
caused to the serient estate'
.en if the easement is for a laudable purpose# there is still a need for
compensation'
6(/J
o Where the land was originally public land# and awarded by free
patent and was registered with an ?)/ and /)/ with a
reseration for a legal easement of a right7of7way in faor of
the goernment# just compensation need not be paid for the
ta9ing of a part thereof for public use as an easement of a right
of way# unli9e if the land were originally priate property' !=4A
)A"
What are the 9inds of easements of right of way?
&' 3riate# when it is established in faor of a priate person# such as the
right granted in Article H@K5 or
*' 3ublic# when it is aailable in faor of the community or the public at
large'
Ac%uisition and extinguishment by prescription
/he easement of right of way# being discontinuous# cannot be ac%uired
ny prescription' 4t may be apparent# but it is not a continuous easement'
De :eon gies some reasons why the easement of right of way should
be considered as continuous in page @D; of his boo9'
)ase doctrines
$e%uisites of the easement !based on FaldeG /abisula5 :ee#
Fillanuea5 etc"
&' )laimant must be an owner of enclosed immoable or one with real
right
*' 3roperty is surrounded by other immoables and has no ade%uate
outlet to a public highway
-' 3roper indemnity must be paid
@' /he isolation is not the result of the owner of the dominant estates
own acts
<' /he right of way claimed is at the least prejudicial to the serient
estate
H' /o the extent consistent with the foregoing rule# the distance from
the dominant estate to a public highway may be the shortest'
/he onus of proing the existence of these re%uisites lies on the owner
of the dominant estate'
$e%uisites na naman; !based on Mejorada FertudaGo"
&' /he estate is surrounded by other immoables and is without
ade%uate outlet to a public highway5
*' After payment of the proper indemnity
-' /he isolation was not due to the proprietors acts5 and
@' /he right of way claimed is at a point least prejudicial to the serient
estate'
?ne whose land is enclosed by the lands of others at one ac%uires the
right to demand an easement of way to the nearest street or road# but
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his failure to do so does not constitute a renunciation of his right nor
does the right to demand such easement prescribe under Article H-&'
/he right to demand a right of way is imprescriptible' !Crancisco 3aeG"
Art& 0*1& The wi$th o" the easement o" right o" way shall e that which
is s,""icient "or the nee$s o" the $ominant estate+ an$ may accor$ingly
e change$ "rom time to time& H*00aI
Width of the passage
4t is the needs of the dominant property which ultimately determine the
width of the passage# and these needs may ary from time to time'
/he easement established may thus be changed or modified from time
to time as the subse%uent needs of the dominant estate may demand'
Art& 0*)& <hene'er a #iece o" lan$ ac6,ire$ y sale+ e/change or
#artition+ is s,rro,n$e$ y other estates o" the 'en$or+ e/changer+ or
co1owner+ he shall e olige$ to grant a right o" way witho,t in$emnity&
In case o" a sim#le $onation+ the $onor shall e in$emni"ie$ y
the $onee "or the estalishment o" the right o" way& H*02aI
Art& 0*.& In the case o" the #rece$ing article+ i" it is the lan$ o" the
grantor that ecomes isolate$+ he may $eman$ a right o" way a"ter
#aying a in$emnity& ;owe'er+ the $onor shall not e liale "or
in$emnity& HnI
Where land of transferor or transferee enclosed
/hese two articles are exceptions to the re%uirement in Article H@K
regarding the payment of indemnity'
4f the land transferred is surrounded by other estates of the endor#
exchanger or co7owner# the transferee is not obliged to pay indemnity
for the easement as the consideration for the transfer is presumed to
include the easement without the indemnity'
o 4f the right of way becomes useless for some reason or
another# it is no longer than transferors fault' Apply Article H@*'
o Article H<* is not applicable in case of simple donation
because the donor receies nothing for his property'
4f it is the land of the grantor that becomes isolated# he may demand a
right of way but shall be obliged to pay indemnity unless the purchaser
agreed to grant right without indemnity'
o /he donor shall not be liable for indemnity as it is considered a
tacit condition of the donation'
Art& 0*4& I" the right o" way is #ermanent+ the necessary re#airs shall e
ma$e y the owner o" the $ominant estate& A #ro#ortionate share o" the
ta/es shall e reim,rse$ y sai$ owner to the #ro#rietor o" the
ser'ient estate& HnI
$esponsibility for repairs and taxes
/his applies if the right of way is permanent'
/he serient owner retains ownership of the passageway5 hence# he
pays all the taxes'
/he dominant owner is liable for the necessary repairs and the
proportionate share of the taxes paid by the serient owner# meaning
the amount of taxes corresponding to the portion on which the
easement is established'
Art& 0**& I" the right o" way grante$ to a s,rro,n$e$ estate ceases to e
necessary eca,se its owner has !oine$ it to another a,tting on a
#,lic roa$+ the owner o" the ser'ient estate may $eman$ that the
easement e e/ting,ishe$+ ret,rning what he may ha'e recei'e$ y
way o" in$emnity& The interest on the in$emnity shall e $eeme$ to e
in #ayment o" rent "or the ,se o" the easement&
The same r,le shall e a##lie$ in case a new roa$ is o#ene$
gi'ing access to the isolate$ estate&
In oth cases+ the #,lic highway m,st s,stantially meet the
nee$s o" the $ominant estate in or$er that the easement may e
e/ting,ishe$& H*05aI
.xtinguishment of compulsory easement of right of way
/his applies to compulsory easement of right of way'
/he two causes of extinguishment are8
&' /he joining of the isolated estate to another abutting a public road#
and
*' ?pening a new road which gies access to the estate'
/he new outlet must be ade%uate'
/he extinguishment is not automatic because the law says that the
owner of the serient estate may demand that the easement be
extinguished# if he so desires' +o# the dominant owner cannot as9 for
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the return of the indemnity# if the serient owner chooses to allow the
continuation of the easement'
/he serient owner is not liable to pay interest on the indemnity as the
interest is deemed to be payment for the use of the easement'
Art& 0*0& I" it e in$is#ensale "or the constr,ction+ re#air+
im#ro'ement+ alteration or ea,ti"ication o" a ,il$ing+ to carry
materials thro,gh the estate o" another+ or to raise therein sca""ol$ing
or other o!ects necessary "or the wor-+ the owner o" s,ch estate shall
e olige$ to #ermit the act+ a"ter recei'ing #ayment o" the #ro#er
in$emnity "or the $amage ca,se$ him& H*07aI
/emporary easement of right of way
/his applies to a right of way which is essentially temporary or
transitory'
4t is sufficient that great inconenience# difficulty# or expense would be
encountered if the easement was not granted'
/emporary easement is allowed only after the payment of the proper
indemnity'
)ase doctrine
/he installation of electric power lines is a permanent easement not
coered by Article H<H' Article H<H deals only with the temporary
easement of passage' !3reysler# Ar )A"
Art& 0*2& Easements o" the right o" way "or the #assage o" li'estoc-
-nown as animal #ath+ animal trail or any other+ an$ those "or watering
#laces+ resting #laces an$ animal "ol$s+ shall e go'erne$ y the
or$inances an$ reg,lations relating thereto+ an$+ in the asence
thereo"+ y the ,sages an$ c,stoms o" the #lace&
<itho,t #re!,$ice to rights legally ac6,ire$+ the animal #ath
shall not e/cee$ in any case the wi$th o" 2* meters+ an$ the animal trail
that o" .2 meters an$ *9 centimeters&
<hene'er it is necessary to estalish a com#,lsory easement
o" the right o" way or "or a watering #lace "or animals+ the #ro'isions o"
this Section an$ those o" Articles 049 an$ 041 shall e oser'e$& In this
case the wi$th shall not e/cee$ 19 meters& H*29aI
$ight of way for the passage of liestoc9# watering places
/he easements shall be goerned by the ordinances# regulations# and in
their absence# usages and customs of the place'
Animal path max width8 I< meters
Animal trail max width8 -I'< meters
Cor drawing waters and for watering animals max width8 &; meters
o 4n the last case# they can be imposed only for reasons of public
use in faor of a town or barrio and only after payment of the
proper indemnity'
SE:TION 3OCR A EASEMENT O3 PARTY <ALL

Art& 0*5& The easement o" #arty wall shall e go'erne$ y the
#ro'isions o" this Title+ y the local or$inances an$ c,stoms inso"ar as
they $o not con"lict with the same+ an$ y the r,les o" co1ownershi#&
H*21aI
Whats an easement of party wall?
4t refers to all those mass of rights and obligations emanating from the
existence and common enjoyment of wall# fence# enclosures or hedges#
by the owners of adjacent buildings and estates separated by such
objects'
What is a party wall# what is its nature?
A party wall is a common wall which separates two estates# built by
common agreement at the diiding line such that it occupies a portion of
both estates on e%ual parts'
4t is a 9ind of forced co7ownership in which the parties are prt7owners'
.ach owner owns part of the wall but it cannot be separated from the
other portions belonging to the others'
An owner may use a party wall to the extent of the P portion on his
property' =ot all common walls or walls in co7ownership are party walls'
!A wall built on a co7owned lot is a common wall# not a party wall'"
3arty Wall )o7ownership
/he shares of the co7owners cannot
be physically segregated but they
can be physically identified'
+hares of the co7owners can be
diided or separated physically'
6efore such diision# a co7owner
cannot point to any definite portion of
the property as belonging to him'
=o such limitation =one of the co7owners may use the
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community property for his exclusie
benefit
Any owner may free himself from
contributing to the cost of repairs
and construction of a party wall by
renouncing all his rights thereto'
3artial renunciation is allowed

Art& 0*7& The e/istence o" an easement o" #arty wall is #res,me$+
,nless there is a title+ or e/terior sign+ or #roo" to the contrary%
H1I In $i'i$ing walls o" a$!oining ,il$ings ,# to the #oint o"
common ele'ation(
H)I In $i'i$ing walls o" gar$ens or yar$s sit,ate$ in cities+
towns+ or in r,ral comm,nities(
H.I In "ences+ walls an$ li'e he$ges $i'i$ing r,ral lan$s& H*2)I
When is the existence of a party wall presumed?
&' 4n diiding walls of adjoining buildings up to the point of common
eleation5
*' 4n diiding walls of gardens or yards situated in cities# towns# or in rural
communities5 or
-' 4n fences# walls and lie hedges diiding rural lands'
/he legal presumption is juris tantum5 it may be rebutted by a title or
exterior sign or any other proof showing that the entire wall in
controersy belongs exclusiely to one of the adjoining property owners'
)ase doctrine
A wall separating two adjoining buildings# built on the land on which one
of these buildings stands# is not a party wall when there is a drain along
its top to carry away the water from the roof and eaes of the building
belonging to the owner of the land on which the wall is erected5 and also
when a part of the wall is coered by the roof of the said building# the
construction of which demonstrates that the wall belongs exclusiely to
the owner of the building of which it forms part' !:ao Eeirs of Alburo"
Art& 009& It is ,n$erstoo$ that there is an e/terior sign+ contrary to the
easement o" #arty wall%
H1I <hene'er in the $i'i$ing wall o" ,il$ings there is a
win$ow or o#ening(
H)I <hene'er the $i'i$ing wall is+ on one si$e+ straight an$
#l,m on all its "acement+ an$ on the other+ it has similar con$itions on
the ,##er #art+ ,t the lower #art slants or #ro!ects o,twar$(
H.I <hene'er the entire wall is ,ilt within the o,n$aries o"
one o" the estates(
H4I <hene'er the $i'i$ing wall ears the ,r$en o" the in$ing
eams+ "loors an$ roo" "rame o" one o" the ,il$ings+ ,t not those o"
the others(
H*I <hene'er the $i'i$ing wall etween co,rtyar$s+ gar$ens+
an$ tenements is constr,cte$ in s,ch a way that the co#ing she$s the
water ,#on only one o" the estates(
H0I <hene'er the $i'i$ing wall+ eing ,ilt o" masonry+ has
ste##ing stones+ which at certain inter'als #ro!ect "rom the s,r"ace on
one si$e only+ ,t not on the other(
H2I <hene'er lan$s inclose$ y "ences or li'e he$ges a$!oin
others which are not inclose$&
In all these cases+ the ownershi# o" the walls+ "ences or
he$ges shall e $eeme$ to elong e/cl,si'ely to the owner o" the
#ro#erty or tenement which has in its "a'or the #res,m#tion ase$ on
any one o" these signs& H*2.I
.xterior signs rebutting presumption
/his article mentions some exterior signs rebutting the presumption of a
party wall' /he wall becomes the exclusie property of the owner of the
estate which has in its faor the presumption based on any of the aboe
exterior signs'
/he enumeration is merely illustratie# and is not exclusie'
/he exterior signs may contradict each other' 4n such case# the court
shall decide the matter ta9ing into consideration all the circumstances'
o 6ut in case of conflict between a title eidencing ownership to
a wall and an exterior sign# the former must preail# for the
latter merely gies rise to an inference of ownership'
Art& 001& 8itches or $rains o#ene$ etween two estates are also
#res,me$ as common to oth+ i" there is no title or sign showing the
contrary&
There is a sign contrary to the #art1ownershi# whene'er the
earth or $irt remo'e$ to o#en the $itch or to clean it is only on one si$e
thereo"+ in which case the ownershi# o" the $itch shall elong
e/cl,si'ely to the owner o" the lan$ ha'ing this e/terior sign in its
"a'or& H*24I
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6itches or drains between two estates !hehe"
/he deposit of earth or debris on one side alone is an exterior sign that
the owner of that side is the owner of the ditch or the drain'
Again# this is rebuttable'
Art& 00)& The cost o" re#airs an$ constr,ction o" #arty walls an$ the
maintenance o" "ences+ li'e he$ges+ $itches+ an$ $rains owne$ in
common+ shall e orne y all the owners o" the lan$s or tenements
ha'ing the #arty wall in their "a'or+ in #ro#ortion to the right o" each&
Ne'ertheless+ any owner may e/em#t himsel" "rom
contri,ting to this charge y reno,ncing his #art1ownershi#+ e/ce#t
when the #arty wall s,##orts a ,il$ing elonging to him& H*2*I
)ontribution to cost of repairs and construction of party walls
/he part7owners of the party wall shall contribute to the cost in the
proportion to their respectie interests'
o 6ut if the cause of the repairs is due to the fault of just one#
then he alone shall bear the costs'
Any owner may free himself from contributing to the charge by
renouncing his rights in the party wall unless it actually supports his
building'
/he renunciation will include the land on which the party wall is
constructed'
Art& 00.& I" the owner o" a ,il$ing+ s,##orte$ y a #arty wall $esires to
$emolish the ,il$ing+ he may also reno,nce his #art1ownershi# o" the
wall+ ,t the cost o" all re#airs an$ wor- necessary to #re'ent any
$amage which the $emolition may ca,se to the #arty wall+ on this
occasion only+ shall e orne y him& H*20I
Demolish that building> Demolish>
An owner may also renounce his part ownership of a party wall if he
desires to demolish his building supported by the wall'
Ee shall bear all the expenses of repairs and wor9 necessary to preent
any damage which the demolition may cause to the party wall'
Art& 004& E'ery owner may increase the height o" the #arty wall+ $oing
at his own e/#ense an$ #aying "or any $amage which may e ca,se$
y the wor-+ e'en tho,gh s,ch $amage e tem#orary&
The e/#enses o" maintaining the wall in the #art newly raise$
or $ee#ene$ at its "o,n$ation shall also e #ai$ "or y him( an$+ in
a$$ition+ the in$emnity "or the increase$ e/#enses which may e
necessary "or the #reser'ation o" the #arty wall y reason o" the
greater height or $e#th which has een gi'en it&
I" the #arty wall cannot ear the increase$ height+ the owner
$esiring to raise it shall e olige$ to reconstr,ct it at his own e/#ense
an$+ i" "or this #,r#ose it e necessary to ma-e it thic-er+ he shall gi'e
the s#ace re6,ire$ "rom his own lan$& H*22I
Art& 00*& The other owners who ha'e not contri,te$ in gi'ing
increase$ height+ $e#th or thic-ness to the wall may+ ne'ertheless+
ac6,ire the right o" #art1ownershi# therein+ y #aying #ro#ortionally
the 'al,e o" the wor- at the time o" the ac6,isition an$ o" the lan$ ,se$
"or its increase$ thic-ness& H*25aI
4ncrease the height of party wall>
An owner is gien the right to increase the height of a party wall subject
to the following conditions8
&' Ee must do so at his own expense5
*' Ee must pay for any damage which may be caused thereby een if
damage is temporary5
-' Ee must bear the cost of maintaining the portion added5 and
@' Ee must pay the increased cost of preseration of the wall'
Ee shall be obliged to reconstruct the wall at his expense if it is
necessary so that the wall can bear the increased height# and if
additional thic9ness is re%uired# he shall proide the space therefore
from his own land'
/he other owners cannot object to the wor9 as long as the aboe
conditions are complied with'
/he owner who ma9es the addition ac%uires ownership unless the other
owners pay proportionately the alue of the wor9 at the time of the
ac%uisition !not the construction" and of the land used for the walls
increased thic9ness'
Art& 000& E'ery #art1owner o" a #arty wall may ,se it in #ro#ortion to
the right he may ha'e in the co1ownershi#+ witho,t inter"ering with the
common an$ res#ecti'e ,ses y the other co1owners& H*27aI
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3roportional use of party wall
4f /weet owns *L- of the party wall and 3lur9 owns &L-# /weet may use
the wall !li9e inserting a beam" up to *L- of its thic9ness# and 3lur9 can
do the same up to &L-'
SE:TION 3IVE A EASEMENT O3 LI>;T AN8 VIE<

Art& 002& No #art1owner may+ witho,t the consent o" the others+ o#en
thro,gh the #arty wall any win$ow or a#ert,re o" any -in$& H*59I
WEA/ 4+ A= .A+.M.=/ ?C :4GE/?>?>
.asement of light !jus luminum) is the right to admit light from the
neighboring estate by irtue of the opening of a window or the ma9ing of
certain openings'
WEA/ 4+ A= .A+.M.=/ ?C F4.W?>?>
.asement of iew !jus prospectus" is the right to ma9e openings or
windows# to enjoy the iew through the estate of another and the power
to preent all constructions or wor9s which would obstruct such iew or
ma9e the same difficult'
4t necessarily includes the easement of light'
Ma9ing of opening through a party wall
A part7owner cannot exercise an act which implies full ownership of the
wall by ma9ing use of all its thic9ness'
$emember# a window in the diiding wall of buildings is an exterior sign
which rebuts the presumption that the wall is a party wall' ?ne part7
owner may not# therefore# ma9e any window or opening of any 9ind thru
a party wall without the consent of the others'
Art& 005& The #erio$ o" #rescri#tion "or the ac6,isition o" an easement
o" light an$ 'iew shall e co,nte$%
H1I 3rom the time o" the o#ening o" the win$ow+ i" it is thro,gh
a #arty wall( or
H)I 3rom the time o" the "ormal #rohiition ,#on the #ro#rietor
o" the a$!oining lan$ or tenement+ i" the win$ow is thro,gh a wall on
the $ominant estate& HnI
3rescriptie period for ac%uisition of easement of light and iew
/he easement of light and iew is either positie or negatie'
When is it positie?
o 4t is considered positie if made through a party wall or een if
made on ones own wall# if the window is on a balcony or
projection extending oer the adjoining property'
o When a window is opened through a party wall# an apparent
and continuous easement is created from the time of such
opening' 6ut there is no true easement as long as the right to
preent its use exists'
o /he adjoining owner can order the window closed within &;
years from the time of the opening of the window'
When is it negatie?
o 4t is considered negatie if the window is made through a wall
on the dominant estate'
o /he &;7year period of prescription commences from the time of
the formal prohibition !instrument ac9nowledged by a notary
public" upon the adjoining owner'
o 6efore the expiration of the prescriptie period# the window
exists by mere tolerance of the adjoining owner who always
retains the right to hae it closed or to build an obstruction#
although the opening was made more than &; years after he
decided to exercise his right'
/he opening by QyGal was made in &KK; but he made
a formal notarial demand prohibiting Meeyoo to
obstruct the iew only in &KK@# Meeyoo may still
demand the closure of the window in *;;&'
)ase doctrines
When the construction of windows and balconies does not constitute an
actual inasion of the rights of another# but is a lawful exercise of an
inherent right# the easement of light and iew is negatie' !Cabie
:ichauco"
When a window is opened in a party wall# the express or implied
consent of the part owner affords a basis for the ac%uisition of a
prescriptie title'
When a window is opened in the wall of a neighbor# prescription
commences to run from the date of the opening of the windows and
ripens into title when the specified time has elapsed without opoosition
on the part of the owner of the wall' !)ortes Mu /ibo"

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Art& 007& <hen the $istances in Article 029 are not oser'e$+ the owner
o" a wall which is not #arty wall+ a$!oining a tenement or #iece o" lan$
elonging to another+ can ma-e in it o#enings to a$mit light at the
height o" the ceiling !oints or imme$iately ,n$er the ceiling+ an$ o" the
si4e o" thirty centimeters s6,are+ an$+ in e'ery case+ with an iron
grating ime$$e$ in the wall an$ with a wire screen&
Ne'ertheless+ the owner o" the tenement or #ro#erty a$!oining
the wall in which the o#enings are ma$e can close them sho,l$ he
ac6,ire #art1ownershi# thereo"+ i" there e no sti#,lation to the
contrary&
;e can also ostr,ct them y constr,cting a ,il$ing on his
lan$ or y raising a wall thereon contig,o,s to that ha'ing s,ch
o#enings+ ,nless an easement o" light has een ac6,ire$& H*51aI
?penings at height of ceiling joists to admit light
When the wall is not a party wall# the owner may ma9e an opening for
the purpose of admitting light and air# but not for iew' /he restrictions
are the following8
&' /he siGe must not exceed -; cm s%uare5
*' /he opening must be at the height of the ceiling joists or
immediately under the ceiling5
-' /here must be an iron grating imbedded in the wall5 and
@' /here must be a wire screen'
When the wall becomes a party wall# a part7owner can order the closure
of the opening because no part7owner may ma9e an opening through a
party wall without the consent of the others' 4t can also obstruct the
opening unless an easement of light has been ac%uired by prescription#
in which case the serient owner may not impair the easement'
)ase doctrine
4f a house consists of more than one story# each story may hae the
same openings which are proided by law for one house' /he purpose
of the law is to proide light to the rooms and it is eident that the rooms
of the lower stories hae a much need for light as those of the top story'
!)hoco +antamaria""
When the house has been built# with two meters of the diiding line !Art
HI;"# no other windows than those proided in this article may be
opened in its walls' !+aeG Cigueras"
Art& 029& No win$ows+ a#ert,res+ alconies+ or other similar #ro!ections
which a""or$ a $irect 'iew ,#on or towar$s an a$!oining lan$ or
tenement can e ma$e+ witho,t lea'ing a $istance o" two meters
etween the wall in which they are ma$e an$ s,ch contig,o,s
#ro#erty&
Neither can si$e or oli6,e 'iews ,#on or towar$s s,ch
contermino,s #ro#erty e ha$+ ,nless there e a $istance o" si/ty
centimeters&
The nonoser'ance o" these $istances $oes not gi'e rise to
#rescri#tion& H*5)aI
Art& 021& The $istance re"erre$ to in the #rece$ing article shall e
meas,re$ in cases o" $irect 'iews "rom the o,ter line o" the wall when
the o#enings $o not #ro!ect+ "rom the o,ter line o" the latter when they
$o+ an$ in cases o" oli6,e 'iew "rom the $i'i$ing line etween the two
#ro#erties& H*5.I
Direct and obli%ue iews
Article IH; re%uires a distance of8
o Cor direct iew# * meters
o Cor obli%ue iew# H; cm
Article IH& proides the manner of measuring the distance'
o Cor direct iew 2 from the outer line of the wall when the
openings do not project5 from the outer line of the openings
when they do project
o Cor obli%ue iew 2 from the diiding line
An owner can build within the minimum distance or een up to the
diiding line proided no window is opened except as proided in Article
HHK'
When windows are opened# without obsering the re%uired legal
distances# the adjoining owner has a right to hae them closed'
/he non7obserance of the distances does not gie rise to prescription'
o /he mere opening of the windows in iolation of Article II;
does not gie rise to the seritude by prescription'
o 4ts a negatie easement because the window is through a wall
of the dominant estate and so prescription may still be
ac%uired after &; years from the time of notarial prohibition'
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Art& 02)& The #ro'isions o" Article 029 are not a##licale to ,il$ings
se#arate$ y a #,lic way or alley+ which is not less than three meters
wi$e+ s,!ect to s#ecial reg,lations an$ local or$inances& H*54aI
Where buildings separated by a public way or alley
/he distance in HI; is not compulsory where there is a public way or
alley proided that it is not less than - meters wide'
)ase doctrine
A priate alley opened to the use of the general public falls within the
proision of Article HI*'
Art& 02.& <hene'er y any title a right has een ac6,ire$ to ha'e $irect
'iews+ alconies or el'e$eres o'erloo-ing an a$!oining #ro#erty+ the
owner o" the ser'ient estate cannot ,il$ thereon at less than a
$istance o" three meters to e meas,re$ in the manner #ro'i$e$ in
Article 021& Any sti#,lation #ermitting $istances less than those
#rescrie$ in Article 029 is 'oi$& H*5*aI
Where easement of direct iew has been ac%uired
/he word 0title1 as used in Article HI- refers to any of the modes of
ac%uiring easements !contract# will# donation or prescription"'
Wheneer the easement of direct iew has been ac%uired by such title#
there is created a true easement# the owner of the serient estate
cannot build thereon at less than a distance of - meters from the
boundary line'
/he distance may be increased or decreased by stipulation of the
parties proided that in case of decrease# the minimum distance of *
meters or H; cm in HI; must be obsered' 4f not# then its oid'

SE:TION SIE A 8RAINA>E O3 =CIL8IN>S

Art& 024& The owner o" a ,il$ing shall e olige$ to constr,ct its roo"
or co'ering in s,ch manner that the rain water shall "all on his own
lan$ or on a street or #,lic #lace+ an$ not on the lan$ o" his neighor+
e'en tho,gh the a$!acent lan$ may elong to two or more #ersons+ one
o" whom is the owner o" the roo"& E'en i" it sho,l$ "all on his own lan$+
the owner shall e olige$ to collect the water in s,ch a way as not to
ca,se $amage to the a$!acent lan$ or tenement& H*50aI
What is an easement of drainage of buildings?
.asement of drainage of buildings is the right to diert or empty the rain
waters from the ones own roof or shed to the neighbors estate either
drop by drop or through conduits'
$ainwater not to fall on land of another
/his article does not really create a seritude# it merely regulates the
use of ones own property by imposing on him the obligation to collect
its rain waters so as not to cause damage to his neighbors# een if he
be a co7owner of the latter'
4ts an exemption to Article H-I which obliges lower estates to receie
the waters which naturally flow from higher estates'
Art& 02*& The owner o" a tenement or a #iece o" lan$+ s,!ect to the
easement o" recei'ing water "alling "rom roo"s+ may ,il$ in s,ch
manner as to recei'e the water ,#on his own roo" or gi'e it another
o,tlet in accor$ance with local or$inances or c,stoms+ an$ in s,ch a
way as not to ca,se any n,isance or $amage whate'er to the $ominant
estate& H*52I
.asement to receie falling rainwater
/his article deals not with a legal or compulsory easement but with a
oluntary easement to receie rain water falling from the roof of an
adjoining building'
4t is an application of Article H*K'
Art& 020& <hene'er the yar$ or co,rt o" a ho,se is s,rro,n$e$ y other
ho,ses+ an$ it is not #ossile to gi'e an o,tlet thro,gh the ho,se itsel"
to the rain water collecte$ thereon+ the estalishment o" an easement
o" $rainage can e $eman$e$+ gi'ing an o,tlet to the water at the #oint
o" the contig,o,s lan$s or tenements where its egress may e easiest+
an$ estalishing a con$,it "or the $rainage in s,ch manner as to ca,se
the least $amage to the ser'ient estate+ a"ter #ayment o" the #ro#erty
in$emnity& H*5.I
.asement giing outlet to rainwater where house surrounded by other
houses
/he legal easement of drainage may be demanded subject to the
following conditions8
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&' /here must be no ade%uate outlet to the rainwater because the
yard or court of a house is surrounded by other houses5
*' /he outlet to the water must be at the point where egress is
easiest# and establishing a conduit for drainage5 and
-' /here must be payment of proper indemnity'
SE:TION 2& A INTERME8IATE 8ISTAN:ES AN8 <ORGS
3OR :ERTAIN :ONSTRC:TIONS AN8 PLANTIN>S

Art& 022& No constr,ctions can e ,ilt or #lantings ma$e near "orti"ie$
#laces or "ortresses witho,t com#liance with the con$itions re6,ire$ in
s#ecial laws+ or$inances+ an$ reg,lations relating thereto& H*57I
)onstructions and plantings near fortified places
/his article establishes an easement in faor of the +tate'
Art& 025& No #erson shall ,il$ any a6,e$,ct+ well+ sewer+ ",rnace+
"orge+ chimney+ stale+ $e#ository o" corrosi'e s,stances+ machinery+
or "actory which y reason o" its nat,re or #ro$,cts is $angero,s or
no/io,s+ witho,t oser'ing the $istances #rescrie$ y the reg,lations
an$ c,stoms o" the #lace+ an$ witho,t ma-ing the necessary #rotecti'e
wor-s+ s,!ect+ in regar$ to the manner thereo"+ to the con$itions
#rescrie$ y s,ch reg,lations& These #rohiitions cannot e altere$
or reno,nce$ y sti#,lation on the #art o" the a$!oining #ro#rietors&
In the asence o" reg,lations+ s,ch #reca,tions shall e ta-en
as may e consi$ere$ necessary+ in or$er to a'oi$ any $amage to the
neighoring lan$s or tenements& H*79aI
)onstruction of a%ueduct# well# sewer# etc
)onstructions which by reason of their nature or products are
dangerous or noxious must comply with the distances prescribed by
local regulations and customs of the place' =ecessary protectie wor9s
must also be builtLdone by the owner to aoid damage to neighbors'
/he prohibitions cannot be altered by stipulations because of the
underlying public policy of safety'
Whut up# ang layo mo na; @o go go;
Art& 027& No trees shall e #lante$ near a tenement or #iece o" lan$
elonging to another e/ce#t at the $istance a,thori4e$ y the
or$inances or c,stoms o" the #lace+ an$+ in the asence thereo"+ at a
$istance o" at least two meters "rom the $i'i$ing line o" the estates i"
tall trees are #lante$ an$ at a $istance o" at least "i"ty centimeters i"
shr,s or small trees are #lante$&
E'ery lan$owner shall ha'e the right to $eman$ that trees
herea"ter #lante$ at a shorter $istance "rom his lan$ or tenement e
,#roote$&
The #ro'isions o" this article also a##ly to trees which ha'e
grown s#ontaneo,sly& H*71aI
3lanting of trees !wow>"
/his article establishes a negatie easement'
4t proides the minimum distance of trees and shrubs from the boundary
line'
/hey shall be regulated first by local ordinances5 and then by the
customs of the place5 and in default of both# this interesting article'
4n case of iolation# a landowner shall hae the right to demand the
uprooting of the tree or shrub een if it has grown spontaneously'
Art& 059& I" the ranches o" any tree sho,l$ e/ten$ o'er a neighoring
estate+ tenement+ gar$en or yar$+ the owner o" the latter shall ha'e the
right to $eman$ that they e c,t o"" inso"ar as they may s#rea$ o'er
his #ro#erty+ an$+ i" it e the roots o" a neighoring tree which sho,l$
#enetrate into the lan$ o" another+ the latter may c,t them o"" himsel"
within his #ro#erty& H*7)I
4ntrusions of branches or roots into neighboring estates
4n case of branches# the adjoining owner must first demand that they be
cut7off by the tree owner insofar as they spread oer the formers
property' 4f the tree owner refuses# he may as9 authority from the court'
As to the roots# he may cut them off himself if they penetrate into his
land without the necessity of giing notice to the tree owner# because#
by right of accession# he has ac%uired ownership oer them' 4t actually
constitutes a direct inasion on his land !grabe naman'"
Art& 051& 3r,its nat,rally "alling ,#on a$!acent lan$ elong to the owner
o" sai$ lan$& HnI
Aung mahulog yung mangga ni Jhunjhun sa lote 'o, a'in na ba yung
mangga9
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Mes' 6ut the falling must occur naturally' +o 4 hae no right to pic9 fruits
still on branches that extend oer my land'
/his is not based on occupation nor accession# but by operation of law'
SE:TION 5& A EASEMENT A>AINST NCISAN:E

Art& 05)& E'ery ,il$ing or #iece o" lan$ is s,!ect to the easement
which #rohiits the #ro#rietor or #ossessor "rom committing n,isance
thro,gh noise+ !arring+ o""ensi'e o$or+ smo-e+ heat+ $,st+ water+ glare
an$ other ca,ses&
Art& 05.& S,!ect to 4oning+ health+ #olice an$ other laws an$
reg,lations+ "actories an$ sho#s may e maintaine$ #ro'i$e$ the least
#ossile annoyance is ca,se$ to the neighorhoo$&
/he )ode considers the easement against nuisance as negatie
because the proprietor or possessor is prohibited to do something which
he could lawfully do were it not for the existence of the easement'
Eoweer# a nuisance inoles any act of ormission which is unlawful'
+o# these two articles are more of a restriction on the right of ownership
than a true easement'
SE:TION 7& 1 Lateral an$ S,!acent S,##ort HnI

Art& 054& No #ro#rietor shall ma-e s,ch e/ca'ations ,#on his lan$ as
to $e#ri'e any a$!acent lan$ or ,il$ing o" s,""icient lateral or
s,!acent s,##ort&
Art& 05*& Any sti#,lation or testamentary #ro'ision allowing
e/ca'ations that ca,se $anger to an a$!acent lan$ or ,il$ing shall e
'oi$&
Art& 050& The legal easement o" lateral an$ s,!acent s,##ort is not
only "or ,il$ings stan$ing at the time the e/ca'ations are ma$e ,t
also "or constr,ctions that may e erecte$&
Art& 052& Any #ro#rietor inten$ing to ma-e any e/ca'ation
contem#late$ in the three #rece$ing articles shall noti"y all owners o"
a$!acent lan$s&
3roprietor prohibited from ma9ing dangerous excaations
+upport is lateral when the supported and the supporting lands are
diided by a ertical plane'
+upport is subjacent when the supported land is aboe and the
supporting land is beneath it'
An owner# by irtue of his surface right# may ma9e excaations on his
land# but his right is subject to the limitation in Article HD@ that he shall
not deprie any adjacent land or building of sufficient lateral or
subjacent support'
Any stipulation or testamentary proision allowing excaations that
iolate Article HD@ is oid' /he limitation applies not only to existing
buildings but also to future constructions'
/he notice re%uired in Article HDI is mandatory except where there is
actual 9nowledge of the proposed excaation'
/he adjacent owner is entitled to injunctie relief and to damages for
iolation of the proisions'
:;APTER .
VOLCNTARY EASEMENTS

Art& 055& E'ery owner o" a tenement or #iece o" lan$ may estalish
thereon the easements which he may $eem s,itale+ an$ in the manner
an$ "orm which he may $eem est+ #ro'i$e$ he $oes not contra'ene
the laws+ #,lic #olicy or #,lic or$er& H*74I
?wner of land may constitute easement
+ince easement inoles an act of strict dominium# only the owner or at
least one acting in his name and under his authority# may establish a
oluntary easement'
Eoweer# a beneficial owner may establish a temporary easement
consistent with his right as such and subject to termination upon the
extinguishment of the usufruct'
Foluntary easements not contractual
Foluntary easements are not contractual in nature# they constitute the
act of the owner'
Art& 057& The owner o" a tenement or #iece o" lan$+ the ,s,"r,ct o"
which elongs to another+ may im#ose thereon+ witho,t the consent o"
the ,s,"r,ct,ary+ any ser'it,$es which will not in!,re the right o"
,s,"r,ct& H*7*I
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Where property held in usufruct
/he owner of property in usufruct may create easements thereon
without the consent of the usufructuary proided the rights of the latter
are not impaired'
Art& 079& <hene'er the na-e$ ownershi# o" a tenement or #iece o" lan$
elongs to one #erson an$ the ene"icial ownershi# to another+ no
#er#et,al 'ol,ntary easement may e estalishe$ thereon witho,t the
consent o" oth owners& H*70I
)reation of perpetual oluntary easement
A usufructuary may impose on the estate held in usufruct a temporary
easement'
Where the na9ed ownership and the beneficial ownership of the estate
belong to different persons# and the easement is perpetual !permanent
right of way# etc"# the consent of both the na9ed owner and the
beneficial owner is re%uired'
Art& 071& In or$er to im#ose an easement on an ,n$i'i$e$ tenement+ or
#iece o" lan$+ the consent o" all the co1owners shall e re6,ire$&
The consent gi'en y some only+ m,st e hel$ in aeyance
,ntil the last one o" all the co1owners shall ha'e e/#resse$ his
con"ormity&
=,t the consent gi'en y one o" the co1owners se#arately "rom
the others shall in$ the grantor an$ his s,ccessors not to #re'ent the
e/ercise o" the right grante$& H*72aI
4mposition of easement on undiided property
/he creation of a oluntary easement on property owned in common
re%uires the unanimous consent of all the co7owners# because it
inoles an act of alteration and not merely an alienation of an ideal
share of a co7owner'
/he consent may be gien separately or successiely'
?nce consent is gien by a co7owner# the same is binding upon him and
his successors unless his consent was itiated'
After the consent of the last of all of the co7owners has been secured# it
is not necessary for him to gie again his consent'
Art& 07)& The title an$+ in a #ro#er case+ the #ossession o" an easement
ac6,ire$ y #rescri#tion shall $etermine the rights o" the $ominant
estate an$ the oligations o" the ser'ient estate& In $e"a,lt thereo"+ the
easement shall e go'erne$ y s,ch #ro'isions o" this Title as are
a##licale thereto& H*75I
$ules goerning oluntary easementsJ ano nga ba9
&' 4f created by title# such as contract# will# etc# then by such title5
*' 4f created by prescription# by the form and manner of possession of the
easement !see Art H-*"5 and
-' 4n default of the aboe# by the proisions of the )iil )ode on easement'
Art& 07.& I" the owner o" the ser'ient estate sho,l$ ha'e o,n$ himsel"+
,#on the estalishment o" the easement+ to ear the cost o" the wor-
re6,ire$ "or the ,se an$ #reser'ation thereo"+ he may "ree himsel" "rom
this oligation y reno,ncing his #ro#erty to the owner o" the
$ominant estate& H*77I
Where serient owner bound himself to bear cost of maintenance of
easement
/his article applies only where the owner of the serient estate bound
himself to bear the cost of the wor9 re%uired for the use and
preseration of the easement
Ee is bound to fulfill the obligation he has contracted in the same way
that such an owner# should he ma9e use of the easement# is bound to
contribute to the wor9s necessary for the use and preseration of the
seritude'
/he serient owner may free himself from his obligation by renouncing
or abandoning his property to the dominant owner'
o /he renunciation need not be oer the whole serient
tenement# but only on the portion thereof affected by the
easement !right o% way, etc"' howeer# if the easement affects
the entire serient estate !li'e natural drainage"# then the
renunciation must be total'
o 4n any case# it cannot be tacit or implied5 it must follow the form
re%uired by law for transmission of ownership of real property'
TITLE EI>;T
NCISAN:E
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Art& 074& A n,isance is any act+ omission+ estalishment+ ,siness+
con$ition o" #ro#erty+ or anything else which%
H1I In!,res or en$angers the health or sa"ety o" others( or
H)I Annoys or o""en$s the senses( or
H.I Shoc-s+ $e"ies or $isregar$s $ecency or morality( or
H4I Ostr,cts or inter"eres with the "ree #assage o" any #,lic
highway or street+ or any o$y o" water( or
H*I ;in$ers or im#airs the ,se o" #ro#erty&
What is the statutory definition of nuisance?
=uisance is used to refer either to the harm caused or that which
causes harm# or both
=egligence is not an essential ingredient of a nuisance but to be liable
for a nuisance# there must be resulting injury to another in the
enjoyment of his legal rights'
Anything which8 !4A+?E"
&' 4njures or endangers the health or safety of others
*' Annoys or offends the senses
-' +hoc9s# defies or disregards decency or morality
@' ?bstructs or interferes with the free passage of any public highway
or street# or any body of water
<' Einders or impairs the use of property'
Distinguish nuisance from trespass
=uisance consists of a use of ones own property in such a manner as
to cause injury to the property or other right or interest of another# and
generally results from the commission of an act beyond the limits of the
property affected
/respass is a direct infringement of anothers right of property
Where there is no actual physical inasion of the plaintiffs property# the
cause of action is for nuisance rather than trespass' An encroachment
upon the space about anothers land but not upon the land itself is a
nuisance# and not a trespass'
4n trespass# the injury is direct and immediate5 in nuisance# it is
conse%uential'
Distinguish nuisance from negligence
=uisance =egligence
6asis of $egardless of the Want of care
breach of duty degree of care or s9ill
Fiolation of An absolute duty# the
doing of an act which is
wrongful in itself
A relatie duty# the failure to use
the degree of care re%uired
under particular circumstances
in connection with an act or
omission which is not of itself
wrongful
Where the damage is the necessary conse%uence of what the
defendant is doing# or is incident to the business itself or the manner in
which it is conducted# the law of negligence has no application# and the
law of nuisance applies'
4n fine# nuisance is wrongful in itself because of the injury caused
regardless of the presence or absence of care# while negligence creates
liability because of want of proper care resulting to anothers injury'
)ase doctrines
=oise becomes actionable only when it passes the limits of reasonable
adjustment to the conditions of the locality and of the needs of the
ma9er to the needs of the listener' 4njury to a particular person in a
peculiar position will not render the noise an actionable nuisance 2 in
the condition of present liing# noise seems inseparable from the
conduct of many necessary occupations'
/he test to determine noise as nuisance is whether rights of property#
health or comfort are so injuriously affected by the noise that the
sufferer is subjected to a loss which goes beyond the reasonable limit
imposed upon him by the condition of liing'
/he determining factor when noise alone is the cause of complaint is
not its intensity or olume# but it is that the noise is of such character as
to produce actual physical discomfort and annoyance to a person of
ordinary sensibilities# rendering adjacent property less comfortable and
aluable' !A) .nterprises Crabelle"
A negligent or intentional act may constitute a nuisance' Where# after
complaint and notice of damage# the defendant continues to offend and
refuses to correct or discontinue the nuisance# it is intentional'
Art& 07*& N,isance is either #,lic or #ri'ate& A #,lic n,isance a""ects
a comm,nity or neighorhoo$ or any consi$erale n,mer o" #ersons+
altho,gh the e/tent o" the annoyance+ $anger or $amage ,#on
in$i'i$,als may e ,ne6,al& A #ri'ate n,isance is one that is not
incl,$e$ in the "oregoing $e"inition&
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What is a public nuisance?
A public nuisance has been defined as
o the doing of or the failure to do something that injuriously
affects safety# health or morals of the public# or
o wor9s some substantial annoyance# inconenience# or injury to
the public'
What is a priate nuisance?
A priate nuisance has been defined as one which iolates only priate
rights and produces damage to but one or a few personas# and cannot
be said to be public'
3ublic 3riate
Affects 3ublic at large# or such of
them as may come in
contact with it
/he indiidual or a limited
number of indiiduals only
$emedies 4ndictable Actionable# either for their
abatement or for damages#
or both
A nuisance may be both public and priate in character' Eence# there
are mixed nuisances' 4t may iolate public rights to the injury of many#
while producing special injury to priate rights to any extent beyond the
injury to the public'
What is a nuisance per se ?
,uisance per se is an act# occupation# or structure which
un%uestionably is a nuisance at all times and under any circumstances#
regardless of location or surroundings'
4t is that which affects the immediate safety of persons and property'
!/elmo 6ustamante"
4t is a nuisance of itself because of its inherent %ualities# productie of
injury or dangerous to life or property without regard to circumstance'
.xample8 A house of prostitution'
What is a nuisance per accidens ?
4t is an act# occupation# or structure# not a nuisance per se# but which
may become a nuisance by reason of circumstances# location# or
surroundings'
.xample8 raising of pigs in a house within city limits'
=uisance per se =uisance per accidens
4n terms of
proof
/he thing becomes a
nuisance as a matter of
law
4ts existence need only be
proed in any locatlity#
without showing specific
damages# and the right to
relief is established by
aerment and proof of the
mere act'
Depends upon its location and
surroundings# the manner of
its conduct or other
circumstances'
3roof of the act and its
conse%uences is necessary'
4t must be shown by eidence
to be a nuisance under the
law'
4n terms of
action
May be summarily abated
under the undefined law of
necessity
.en the municipal
authorities# under their power
to declare and abate
nuisances# would not hae the
right to compel the abatement
of a particular thing or act as a
nuisance without reasonable
notice to the person alleged to
be maintaining or doing the
same at the time and place of
hearing before a tribunal
whether such a thing
constitutes a nuisance
)ase doctrines
/he operation of bus terminals is a legitimate business which# by itself#
cannot be said to be injurious to the rights of property# health# or comfort
of the community' (nless a thing is nuisance per se# it may not be
abated ia an ordinance# without judicial proceedings' !:ucena AA)
:iner"
/he abatement of a nuisance without judicial proceedings is possible
only if it is a nuisance per se' A gas station is not a nuisance per se or
one affecting the immediate safety of persons and property' Eence# it
cannot be closed down or transferred summarily to another location'
!3arayno Aoellanos"
4njury must not be merely perceied# but must be factual' !3arayno"
What is the doctrine of attractie nuisance?
?ne who maintains on his premises dangerous instrumentalities or
appliances of a character li9ely to attract children in play# and who fails
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to exercise ordinary care to preent children from playing therewith or
resorting thereto# is liable to a child of tender years who is injured
thereby# een if the child is technically a trespasser in the premises'
/he reason is that the condition or appliance in %uestion although its
danger is apparent# is so enticing to children of tender years as to
induce them to approach or use it'
/he attractieness is an implied initation to such children
.Q).3/4?=8 is not applicable to bodies of water# artificial or natural in
the absence of some unusual condition or artificial feature other than
the mere water and its location'
o A swimming pool is not a nuisance'
o A tan9 of water from an ice plant is not a nuisance as well'
!Eidalgo case"
o What if Aollibee is in the middle of the swimming pool?>
.xercise due diligence' >anggalin yung bubuyog na
yan;
Art& 070& E'ery s,ccessi'e owner or #ossessor o" #ro#erty who "ails or
re",ses to aate a n,isance in that #ro#erty starte$ y a "ormer owner
or #ossessor is liale there"or in the same manner as the one who
create$ it&
Generally# only the creator of a nuisance is liable for the damge
resulting therefrom'
Eoweer# since the injurious effect of a nuisance is a continuing one#
eery successie owner or possessor of property constituting a
nuisance who fails or refuses to abate it# has the same liability as the
original owner'
6ut of course# the new owenr must hae actual 9nowledge of the
nuisance'
Art& 072& The aatement o" a n,isance $oes not #recl,$e the right o"
any #erson in!,re$ to reco'er $amages "or its #ast e/istence&
Are the remedies exclusie?
=o'
/he action to abate nuisance and the action to recoer damages are
distinct remedies either or both of which the plaintiff may pursue at his
election'
/he two remedies are concurrent and not exclusie'
/he owner of property abated as a nuisance is not entitled to
compensation unless he can show that the abatement is unjustified'
Art& 075& La#se o" time cannot legali4e any n,isance+ whether #,lic or
#ri'ate&
General rule8 /he right to bring an action to abate a public or priate
nuisance is not extinguished by prescription' :apse of time cannot be
relied upon to legaliGe a nuisance# whether public or priate'
.xception8 +ee Art H-& !*" which expressly prescribes that easements
are extinguished by obstruction and non7use for ten years' !chec9
boo9#3<<D"
Art& 077& The reme$ies against a #,lic n,isance are%
H1I A #rosec,tion ,n$er the Penal :o$e or any local or$inance% or
H)I A ci'il action( or
H.I Aatement+ witho,t !,$icial #rocee$ings&
What are the remedies against a public nuisance?
&' 3rosecution under the 3enal )ode or any local ordinance
*' A ciil action
-' Abatement# without judicial proceedings'
/hese are not exclusie but cumulatie'
All of them may be aailed of by public officers# and the last two# by
priate persons# if the nuisance is especially injurious to the latter'
Abatement without judicial proceedings
/he summary abatement of nuisance without judicial proceedings is
recogniGed and established een in the absence of statute on the
ground that the re%uirement of preliminary formal legal proceedings and
a judicial trial would result in defeating the beneficial object sought to be
obtained'
3olice power of the state includes the right to destroy or abate by a
summary proceeding whateer may be regarded as a public nuisance#
subject to constitutional limitations'
3roperty ta9en or destroyed for the purpose of abating a nuisance is not
ta9en for public use# and there is accordingly no obligation to ma9e
compensation for such ta9ing'
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Art& 299& The $istrict health o""icer shall ta-e care that one or all o" the
reme$ies against a #,lic n,isance are a'aile$ o"&
Art& 291& I" a ci'il action is ro,ght y reason o" the maintenance o" a
#,lic n,isance+ s,ch action shall e commence$ y the city or
m,nici#al mayor&
Art& 29)& The $istrict health o""icer shall $etermine whether or not
aatement+ witho,t !,$icial #rocee$ings+ is the est reme$y against a
#,lic n,isance&
What is the role of the district health officer and others with respect to public
nuisance?
/he district health officer is charged with the duty to see to it that one or
all of the remedies against a public nuisance are aailed of'
Article I;* does not empower the district health officer to abate a public
nuisance to the exclusion of all other authorities' Eis power is simply to
determine whether or not abatement# without judicial proceedings# is the
best remedy against a public nuisance'
/he action must be commenced by the city or municipal mayor' 6ut a
priate person may also file an action if the public nuisance is especially
injurious to him'

Art& 29.& A #ri'ate #erson may "ile an action on acco,nt o" a #,lic
n,isance+ i" it is s#ecially in!,rio,s to himsel"&
Does a priate person hae a right to file action on account of a public
nuisance?
)ertainly>
A priate person may also file a ciil action if the public nuisance is
especially injurious to himself' 4n other words# the nuisance becomes as
to him a priate nuisance affecting him in a special way different from
that sustained by the public in general'
4n the absence of a showing of special or unusual damages# differing
from those suffered by the general public# a cause of action does not
arise in faor of a priate indiidual
An action may be maintained by one who is not the sole or een a
peculiar sufferer# if his grieance is not common to the whole public# but
is a common misfortune of a number or een a class of persons'
Art& 294& Any #ri'ate #erson may aate a #,lic n,isance which is
s#ecially in!,rio,s to him y remo'ing+ or i" necessary+ y $estroying
the thing which constit,tes the same+ witho,t committing a reach o"
the #eace+ or $oing ,nnecessary in!,ry& =,t it is necessary%
H1I That $eman$ e "irst ma$e ,#on the owner or #ossessor o" the
#ro#erty to aate the n,isance(
H)I That s,ch $eman$ has een re!ecte$(
H.I That the aatement e a##ro'e$ y the $istrict health o""icer an$
e/ec,te$ with the assistance o" the local #olice( an$
H4I That the 'al,e o" the $estr,ction $oes not e/cee$ three tho,san$
#esos&
What are the conditions for extrajudicial abatement of a public nuisance?
/he party injured may remoe# and if necessary# destroy thing which
constitutes the nuisance without committing a breach of the peace# or
doing unnecessary damage'
What should be done?
&' Demand be first made upon the owner or possessor of the
nuisance
*' Demand must hae been rejected
-' Abatement be approed by the district health officer and executed
with the assistance of the local police
@' /he alue of the destruction does not exceed 3-;;;'
Art& 29*& The reme$ies against a #ri'ate n,isance are%
H1I A ci'il action( or
H)I Aatement+ witho,t !,$icial #rocee$ings&
Art& 290& Any #erson in!,re$ y a #ri'ate n,isance may aate it y
remo'ing+ or i" necessary+ y $estroying the thing which constit,tes
the n,isance+ witho,t committing a reach o" the #eace or $oing
,nnecessary in!,ry& ;owe'er+ it is in$is#ensale that the
#roce$,re "or e/tra!,$icial aatement o" a #,lic n,isance y a #ri'ate
#erson e "ollowe$&
What are the remedies against a priate nuisance?
&' )iil action
*' Abatement# without judicial proceedings'
4n abating a nuisance# a person may een go to the extent of destroying
the damn thing which constitutes the nusicance proided8
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a' Ee commits no breach of the peace nor causes
unnecessary injury# and
b' /he procedure for extrajudicial abatement of public
nuisance prescribed in I;@ is complied with
Art& 292& A #ri'ate #erson or a #,lic o""icial e/tra!,$icially aating a
n,isance shall e liale "or $amages%
H1I I" he ca,ses ,nnecessary in!,ry( or
H)I I" an allege$ n,isance is later $eclare$ y the co,rts to e not a real
n,isance&
4s there liability for damages in case of extrajudicial abatement?
Meeeeeeees>
A priate or public officer may be held liable for damages'
/he two grounds of which are8
a' (nnecessary injury
b' /he alleged nuisance is later declared by the courts to be
not a real nuisance'

=OOG III
8I33ERENT MO8ES O3 A:FCIRIN> O<NERS;IP

PRELIMINARY PROVISION

Art& 21)& Ownershi# is ac6,ire$ y occ,#ation an$ y intellect,al
creation&
Ownershi# an$ other real rights o'er #ro#erty are ac6,ire$
an$ transmitte$ y law+ y $onation+ y estate an$ intestate
s,ccession+ an$ in conse6,ence o" certain contracts+ y tra$ition&
They may also e ac6,ire$ y means o" #rescri#tion& H097aI
What is mode?
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
persons# and of the fulfillment of the re%uisites established by law'
What is title?
/itle is the juridical act# right or condition which gies the means to their
ac%uisition but which in itself is insufficient to produce them'
4n a contract of sale# the contract is the title and tradition# as a
conse%uence of sale# is the mode'
+ometimes# the mode is at the same time the title !as in with
succession"
Mode /itle
Directly and immediately produces a
real right
+eres merely to gie the occasion
for its ac%uisition or existence
/he cause /he means
3roximate cause $emote cause
.ssence of the right which is to be
created or transmitted
/he means whereby that essence is
transmitted
)ontracts only constitute titles or rights to the transfer or ac%uisition of
ownership# while tradition or deliery is the mode of accomplishing the
same'
What are the different modes and titles of ac%uiring ownership and other real
rights? !?:D/43+"
&' ?riginal modes or those independent of any pre7existing right of another
person# namely8
a' ?ccupation !condition of being without 9nown owner"5 and
b' Wor9 which includes intellectual creation !creation#
discoery# or inention"
*' Deriatie modes or those based on a pre7existing right held by another
person# namely8
a' :aw !existence of re%uired conditions"
b' Donation !contract of parties"
c' +uccession# estate and intestate !death"
d' /radition# as a conse%uence of certain contracts !contract
of the parties"# and
e' 3rescription !possession in the concept of owner"
/he deriatie modes are modes both for the ac%uisition and
transmission of ownership and other real rights' /he transmission may
inole a right in its entirety# or only a part thereof !pledge# mortgage#
usufruct"'
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$egistration is not a mode of ac%uiring ownership# and other real rights
but only a means of confirming the fact of their legal existence with
notice to the world at large'
:aw as a mode of ac%uisition?
When the )iil )ode spea9s of law as a mode of ac%uisition# it refers to
it as a distinct mode or to those cases where the law# independent of the
other modes# directly est ownership of a thing in a person once the
prescribed conditions or re%uisites are present or complied with'
.xamples8
&' Eidden treasure
*' Art @@<
-' $ier beds !Art @H&"
@' Art @HH
<' Art HD&
H' Art &@-@
I' Art &@<H
/radition as a mode of ac%uistion
/radition is a deriatie mode of ac%uiring ownership and other real
rights by irtue of which# there being intention and capacity on the part
of the grantor and grantee and the pre7existence of said rights in the
estate of the grantor# they are transmitted to the grantee through a just
title' !whut?"
$e%uisites8
i' 3re7existence in the estate of the grantor of the right to be
transmitted
ii' Aust cause or title for the transmission
iii' 4ntention on the part of the grantor to grant and on the part of
the grantee to ac%uire
i' )apacity to transmit and to ac%uire
' An act which gies it outward form# physically# symbolically or
legally
3urpose8 non nudis pactis, sed traditione dominia rerum trans%eruntur/
?wnership is transferred# among other means# by tradition' /he deliery
of a thing constitutes a necessary and indispensable re%uisite for the
purpose of ac%uiring the ownership of the same by irtue of a contract'
Ninds8
a' $eal tradition
b' )onstructie tradition
i' +ymbolic
ii' /radition by public instrument
iii' /raditio longa manu
i' /radition brei manu
' /radition constitutum possessorium
c' ,uasi tradition
d' /radition by operation of law
What do you actually delier?
?wnership# possession and control of the subject matter'
What if the endor points to the endee a certain house which he already
sold to the endee# but there are security guards roaming around the lot?
=o tradition' !As9 Aaymie $eyes'"
)ase doctrines
A stranger to the succession of a dead person cannot conclusiely claim
ownership oer the subject lot on the sole basis of the waier document
which neither recites the elements of either a sale# or a donation# or any
other deriatie mode of ac%uiring ownership' !Acap )A"
An affidait not accompanied by any instrument showing the sale
between a purported endor and endee is not a basis of ownership'
!Eeirs of dela )ruG Eeirs of ,uintos"
Cor lands of public domain# in order to ac%uire it by prescription# there
must be a declaration of the +tate that its alienable and disposable and
a positie act that states that it is no longer needed for public use' ?nly
at that point will the counting for prescription start' !Eeirs of Malabanan"
TITLE ONE 1 O::CPATION

Art& 21.& Things a##ro#riale y nat,re which are witho,t an owner+
s,ch as animals that are the o!ect o" h,nting an$ "ishing+ hi$$en
treas,re an$ aan$one$ mo'ales+ are ac6,ire$ y occ,#ation& H019I
What is the concept of occupation?
&' Defined as the appropriation of things appropriable by nature which are
without an owner'
*' /he seiGure of things corporeal which hae no owner with the intention
of ac%uiring the ownership thereof'
What are the re%uisites of occupation?
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&' +eiGure of a thing
*' Must be corporeal personal property
-' Must be susceptible of appropriation by nature
@' Must be without an owner
<' Must be an intention to appropriate
H' $e%uisites or conditions laid down by law must be complied with
What constitutes seiGure?
4t is sufficient that there is an act of ta9ing possession# material holding
not being essential as long as the possessor considers the thing as
subjected to his control or disposition
/he thing must be corporeal personal property without 9nown owner
!res nullius" or abandoned by the owner' res communes are not
appropriable by nature'
/he must be an intent to ac%uire ownership# otherwise# the seiGure
would not be appropriation in the legal sense# but mere material holding'
?ccupation 3ossession
Mode of ac%uiring ownership Merely raises the presumption of
ownership when it is exercised in the
concept of owner
)orporeal personal property Any property
$e%uires that the object be without
an owner
May refer to property owned by
somebody
$e%uires an intent to ac%uire
ownership
)oncept of mere holder
May not ta9e place without some
form of possession
May exist without occupation
+hort duration Generally of longer duration
6y itself# cannot lead to another
mode of ac%uisition
May lead to another mode# which is
prescription
What are the ways by which occupation may be effected?
&' 6y hunting and fishing
*' 6y finding of moables which neer had any owner
-' 6y finding of moables which hae been abandoned by the owner# and
@' 6y finding of hidden treasure
What about wild animals?
/hey are possessed only while they are under ones control'
When is a thing abandoned# lost or ta9en by force?
A thing is considered abandoned when the spes recuperandi
!expectation to recoer" is gone and the animo revertendi !intention to
hae it returned" is finally gien up by the owner'
A thing has been lost or ta9en by force is not ipso %acto conerted into a
res nullius so as to belong to the first person who ta9es possession of
the same without the necessity of proing the mode of his ac%uisition
and it may thus be recoered by the original owner'
Art& 214& The ownershi# o" a #iece o" lan$ cannot e ac6,ire$ y
occ,#ation& HnI
:and is not included among things that can be the object of occupation
the reason is that when the land is without an owner# it pertains to the
state'
6ut# what about abandoned priate land?
Art& 21*& The right to h,nt an$ to "ish is reg,late$ y s#ecial laws& H011I
Do 4 hae a right to hunt and fish?
=o'
+trictly spea9ing# no one has a right to hunt or fish'
/he priilege to hunt or fish# howeer# may be granted and regulated by
law'
Art& 210& The owner o" a swarm o" ees shall ha'e a right to #,rs,e
them to anotherJs lan$+ in$emni"ying the #ossessor o" the latter "or the
$amage& I" the owner has not #,rs,e$ the swarm+ or ceases to $o so
within two consec,ti'e $ays+ the #ossessor o" the lan$ may occ,#y or
retain the same& The owner o" $omesticate$ animals may also claim
them within twenty $ays to e co,nte$ "rom their occ,#ation y
another #erson& This #erio$ ha'ing e/#ire$+ they shall #ertain to him
who has ca,ght an$ -e#t them& H01)aI
/his article tal9s of domesticated# not domestic animals'
With respect to domestic animals# he can claim them een beyond
twenty days from their occupation unless there is abandonment on his
part'
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/his article does not apply to a case where a person has found a
domestic animal and 9ept it for a number of years not 9nowing its
owner'
A domesticated animal which has not strayed or been abandoned
cannot be ac%uired by occupation by a person to whose custody it was
entrusted
/he periods of two days and twenty days are not periods of limitation#
but conditions precedent to recoery'
Art& 212& Pigeons an$ "ish which "rom their res#ecti'e ree$ing #laces
#ass to another #ertaining to a $i""erent owner shall elong to the
latter+ #ro'i$e$ they ha'e not een entice$ y some article o" "ra,$&
H01.aI
/his article does not refer to wild pigeons and fish in a state of liberty or
that lie naturally independent of man' /heir occupation is regulated by
Art I&<'
What is contemplated here are pigeons and fish considered as
domesticated animals subject to the control of man in priate breeding
places'
/he pigeons and fish must change their breeding place to another
belonging to a different owner'
(nless enticed by some artifice or fraud# the shall belong to the owner
of the breeding place to which they shall hae transferred'
Art& 215& ;e who y chance $isco'ers hi$$en treas,re in anotherJs
#ro#erty shall ha'e the right grante$ him in article 4.5 o" this :o$e&
H014I
Art& 217& <hoe'er "in$s a mo'ale+ which is not treas,re+ m,st ret,rn it
to its #re'io,s #ossessor& I" the latter is ,n-nown+ the "in$er shall
imme$iately $e#osit it with the mayor o" the city or m,nici#ality where
the "in$ing has ta-en #lace&
The "in$ing shall e #,licly anno,nce$ y the mayor "or two
consec,ti'e wee-s in the way he $eems est&
I" the mo'ale cannot e -e#t witho,t $eterioration+ or witho,t
e/#enses which consi$eraly $iminish its 'al,e+ it shall e sol$ at
#,lic a,ction eight $ays a"ter the #,lication&
Si/ months "rom the #,lication ha'ing ela#se$ witho,t the
owner ha'ing a##eare$+ the thing "o,n$+ or its 'al,e+ shall e awar$e$
to the "in$er& The "in$er an$ the owner shall e olige$+ as the case
may e+ to reim,rse the e/#enses& H01*aI
Art& 2)9& I" the owner sho,l$ a##ear in time+ he shall e olige$ to #ay+
as a rewar$ to the "in$er+ one1tenth o" the s,m or o" the #rice o" the
thing "o,n$& H010aI

+ee codal for rules' Cairly simple'
/his article is based on the fact that one who lost his property does not
necessarily abandon it' 4f there is no abandonment# the lost thing has
not become res nullius/
3aragraph @ contemplates implied abandonment'
Title II& 1 INTELLE:TCAL :REATION

Art& 2)1& =y intellect,al creation+ the "ollowing #ersons ac6,ire
ownershi#%
H1I The a,thor with regar$ to his literary+ $ramatic+ historical+
legal+ #hiloso#hical+ scienti"ic or other wor-(
H)I The com#oser( as to his m,sical com#osition(
H.I The #ainter+ sc,l#tor+ or other artist+ with res#ect to the
#ro$,ct o" his art(
H4I The scientist or technologist or any other #erson with
regar$ to his $isco'ery or in'ention& HnI
Art& 2))& The a,thor an$ the com#oser+ mentione$ in Nos& 1 an$ ) o"
the #rece$ing article+ shall ha'e the ownershi# o" their creations e'en
e"ore the #,lication o" the same& Once their wor-s are #,lishe$+
their rights are go'erne$ y the :o#yright laws&
The #ainter+ sc,l#tor or other artist shall ha'e $ominion o'er
the #ro$,ct o" his art e'en e"ore it is co#yrighte$&
The scientist or technologist has the ownershi# o" his
$isco'ery or in'ention e'en e"ore it is #atente$& HnI
Art& 2).& Letters an$ other #ri'ate comm,nications in writing are
owne$ y the #erson to whom they are a$$resse$ an$ $eli'ere$+ ,t
they cannot e #,lishe$ or $isseminate$ witho,t the consent o" the
writer or his heirs& ;owe'er+ the co,rt may a,thori4e their #,lication
or $issemination i" the #,lic goo$ or the interest o" !,stice so
re6,ires& HnI
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Art& 2)4& S#ecial laws go'ern co#yright an$ #atent& H4)7aI
Title III& 1 8ONATION

:;APTER ONE
NATCRE O3 8ONATIONS

Art& 2)*& 8onation is an act o" lierality wherey a #erson $is#oses
grat,ito,sly o" a thing or right in "a'or o" another+ who acce#ts it&
H015aI
)oncept of donation
4n its generic sense# the term donation includes all forms of gratuitous
dispositions'
/he donation the article spea9s of and which is goerned by /itle /hree
is the donation proper or the true !or real" donation# or ordinary
donation'
What is the nature and effect of donation?
Although Art I*< defines donation as an act# it is really a contract# with
all the essential re%uisites of a contract'
4t falls under contracts of pure beneficence# the consideration being the
mere liberality of the benefactor'
/he )iil )ode considers donation not among the contracts that transfer
ownership but as a particular mode of ac%uiring and transmitting
ownership'
As a mode of ac%uiring ownership# donation results in an effectie
transfer of title oer the property from the moment the donor is made
aware of the acceptance by the donee# proided that the donee is not
dis%ualified or prohibited by law from accepting the donation'
?nce accepted# it is generally considered irreocable# and the donee
becomes owner of property# except8
&' on account of officiousness#
*' failure of the donee to comply with the charge imposed on the
donation#
-' or ingratitude'
/he effect of donation is to reduce the patrimony or asset of the donor
and to increase that of the donee' Eence# the giing of a mortgage or
any other security does not constitute a donation'
$e%uisites of donation
&' Donor must hae capacity to ma9e the donation of a thing or right
*' Donatie intent !animus donandi" or intent to ma9e the donation out of
liberality to benefit the donee
-' /here must be deliery# whether actual or constructie
@' Donee must accept or consent to the donation'
4n certain donations# the form prescribed by law must be followed !+ee
Art I@D7I@K"
/he subject matter of a donation may be a thing or right' A person may
be a donee although he is incapacitated to enter into a contract if he is
not specially dis%ualified by law to accept donations'
=ot enough that the act is gratuitous# there must be an intent to benefit
the donee'
/he acceptance or consent of the donee is re%uired because no once
can be obliged to receie a benefit against his will'
)ase doctrines
/he essential elements of donation are as follows8
o .ssential reduction of the patrimony of the donor
o 4ncrease in the patrimony of the donee
o /he intent to do an act of liberality or animus donandi !Eeirs of
Clorencio Eeirs of de :eon"
4n order that the donation of an immoable property may be alid# the
deed of donation must be made in a public document' /he acceptance
must be in a public document as well' !Eeirs of Clorencio"
$egistration of the deed in the ?ffice of the $D or in the Assessors
?ffice is not necessary for it to be considered alid and official'
$egistration does not est title' /he necessity of registration comes into
play only when the rights of third persons are affected' Curthermore# the
heirs are bound by the deed of contracts executed by their
predecessors7in7interest' !Eeirs of Clorencio"
A %uitclaim is not a donation where those who executed the same
merely ac9nowledged the ownership of and better right oer the lot by
other persons' !Eeirs of $eyes )alumpang"
Acceptance is necessary in a donation' /his applies to all 9inds of
donations because the law does not ma9e any distinction' A donation
mortis causa ta9es effect only after the death of the donor# conse%uently
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it is only after the latters death that its acceptance maybe made' !Fita
Montanano"
3rudent thing to do when drafting deeds of donation8 3lace an
acceptance clause' +o# if court considers it inter vivos# then it would
hae been accepted' 4f court considers it mortis causa# then the clause
would be a mere superfluity# still open to the acceptance of the donee
upon the death of the donor' !Atty Abrenica"
/he purpose of the formal re%uirement for acceptance of a donation is
to ensure that such acceptance is duly communicated to the donor' /he
actual 9nowledge by the donor of the construction and existence of the
school building pursuant to the condition of the donation fulfills the legal
re%uirement that the acceptance of the donation by the donee be
communicated to the donor' !$epublic +ilim"
Art& 2)0& <hen a #erson gi'es to another a thing or right on acco,nt o"
the latterJs merits or o" the ser'ices ren$ere$ y him to the $onor+
#ro'i$e$ they $o not constit,te a $eman$ale $et+ or when the gi"t
im#oses ,#on the $onee a ,r$en which is less than the 'al,e o" the
thing gi'en+ there is also a $onation& H017I
What are the 9inds of donation?
&' As to ta9ing effect8
a' 4nter ios or that which ta9es effect during the lifetime of
the donor
b' Moris causa or that which ta9es effect upon the death of
the donor
c' 3ropter nuptias or that by reason of marriage
*' As to consideration
a' 3ure or simple5 or that the cause of which is the pure
liberality of the donor in consideration of the donees
merits
b' $emuneratory or compensatory5 or that which is gien out
of gratitude on account of the serices rendered by the
donee to the donor# proided they do not constitute a
demandable debt
c' Modal or that which imposes upon the donee a burden
!serices to be performed in the future" less than the alue
of the gift
d' ?nerous or that the alue of which is considered the
e%uialent of the consideration for which it is gien# or that
made for a aluable consideration# and is thus goerned
by the rules on oblicon
-' As to effectiity or extinguishment
a' 3ure
b' )onditional
c' With a term
/ell me more about remuneratory donations
4n this 9ind of donation# the motiating cause is gratitude#
ac9nowledgment of a faor# a desire to repay for past serices
A donation gien for future serices cannot be remuneratory
4t is necessary that the past serices do not constitute a demandable
debt
o A debt is demandable when it can be legally demanded or enforced
by the donee against the donor who has thus an obligation to pay it'
6ut a debt that has been renounced is not a demandable debt'
What about gratuities and pensions?
While technically a gratuity is different from a donation# in substance#
they are the same'
A gratuity is similar to a pension and is essentially remuneratie
donation'
/ell me more about modal donations
4n a modal donation# a burden !which is necessarily future" less than the
alue of the gift is imposed upon the donee'
4f the burden is considered the e%uialent of the thing or right gien#
then its an onerous donation'
/he burden may consist in a real or personal charge which is capable of
being alued in terms of money'
What are donations with mixed features?
+trictly spea9ing# remuneratory donations are those which are gien on
account of serices rendered by the donee to the donor'
Modal donations are conditional only in the sense that a burden# charge#
condition or limitation is imposed y the donor but the burden is not
technically a condition in the sense of an uncertain eent upon which
the effectitiy or extinguishment of donation is made to depend for it is
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really a mere obligation imposed by the donor upon the donee as a
consideration
Actually# a modal donation has dual nature# it is partly onerous and
partly simple 2 the portion e%uialent to the burden is onerous and is
goerned by the rules on obligations and contracts# while the portion
exceeding the alue of the burdens imposed# is simple and must follow
the form of donations'
Earry donates to $on a parcel of land worth -;; galleons
*
but $on has to
gie another parcel of land or perform some serice worth &;; galleons# the
transaction is onerous as the &;; galleons which must be in the form of a
contract of barter or exchange# and simple as to the *;; galleons which
must follow the form of donations'
)ase doctrines
An onerous donation is that which imposes upon the donee a reciprocal
obligation# or to be precise# this is the 9ind of donation made for a
aluable consideration# the cost of which is e%ual to or more than the
thing donated' !)A Mulo $oman )atholic 6ishop of +an 3ablo"
+ince onerous donations are goerned by the rules of contracts# the
prescription period is &; years !based on a written contract"# and not the
@7year period based on Article IH@ !reocation must be brought within @
years from the non7compliance of the conditions of the donation"' !De
:una Abrigo"
$emuneratory donation is one where the donee gies something to
reward past or future serices or because of future charges or burdens#
when the alue of said serices# burdens or charges is less than the
alue of the donation' !De :una 7R this definition seems wrong as it
includes future charges# which are necessarily modal"
Art& 2)2& Illegal or im#ossile con$itions in sim#le an$ rem,neratory
$onations shall e consi$ere$ as not im#ose$& HnI
Whats the effect of illegal or impossible conditions?
(nder Article I*I# the illegal or impossible condition in a simple or
remuneratory donation would be deemed not imposed following the rule
2
As of Auly *;;H# the galleon7dollar exchange rate was &8&H'I*' 4t hasnt gone below
&8&< eer since' Wala lang# boring ng property eh' Earry 3otter na lang'
on testamentary dispositions' /he donation will be considered as
simiple'
4f the donation is onerous !or modal# as to its onerous portion"# the
illegal or impossible condition shall render it oid' 6eing contractual in
nature# the rule applicable would be that found in Article &&D- !chec9
codal# if diisible# only condition will be oid"
)ase doctrine
/he prohibition in the deed of donation against the alienation of the
property for &;; years should be declared as an illegal or
impossible condition within the contemplation of Article I*I'
)onse%uently# such condition shall be considered as not imposed'
=o reliance may accordingly be placed on said prohibitory
paragraph in the deed of donation' !Archbishop of Manila )A"
Art& 2)5& 8onations which are to ta-e e""ect ,#on the $eath o" the
$onor #arta-e o" the nat,re o" testamentary #ro'isions+ an$ shall e
go'erne$ y the r,les estalishe$ in the Title on S,ccession& H0)9I
Art& 2)7& <hen the $onor inten$s that the $onation shall ta-e e""ect
$,ring the li"etime o" the $onor+ tho,gh the #ro#erty shall not e
$eli'ere$ till a"ter the $onorJs $eath+ this shall e a $onation inter
'i'os& The "r,its o" the #ro#erty "rom the time o" the acce#tance o" the
$onation+ shall #ertain to the $onee+ ,nless the $onor #ro'i$es
otherwise& HnI
4nter ios Mortis causa
/a9es effect during the lifetime of the
donor# independently of his death#
een if the actual execution may be
deferred until said death
/a9es effect upon the death of the
donor testator# so that nothing is
coneyed to or ac%uired by the
donee until said death
Made out of the donors pure
generosity
Made in contemplation of his death
without the intention to lose the thing
or its free disposal in case of surial
Falid if the donor suries the donee Foid should the donor surie the
donee
Must follow formalities of donations Must follow formalities for the alidity
of a will# otherwise oid
Accepted by the donee during his
lifetime
Accepted only after the donors
death
)annot be reo9ed except for Always reocable at any time and for
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grounds proided by law !+ee IH;#
IH<"
any reason before the donors death
!reocable ad nutum 2 at the
discretion of the grantor"
$ight to dispose of the property is
completely coneyed to the donee
$ight is retained by the donor while
he is still alie
+ubject to donors tax +ubject to estate tax
Designation gien to donations not conclusie
Did the donor intend to transfer ownership of the property donated upon
the execution of the donation? 4f yes# then it is inter vivos/ 4f not# then# it
is merely mortis causa'
0/o ta9e effect at the death of the creditor1 does not automatically ma9e
it mortis causa' +uch statements must be construed with the rest of the
instrument'
Donations to be deliered after the donors death
A distinction must be made between the actual donation and the
execution thereof
/hat the donation is to hae effect during the lifetime of the donor does
not mean that the deliery of the property must be made during his life'
Article I*K spea9s of donations in praesenti which ta9e effect during the
lifetime of the donor but the property shall be deliered after the donors
death'
+uch are inter vivos although the subject matter is not deliered at
once# or the deliery is to be made post mortem# which is a simple
matter of form and does not change the nature of the act'
/he fruits shall belong to the donee from the time of acceptance unless
otherwise proided by the donor'
4nstances
Why is it important to ma9e a distinction between inter vivos and mortis
causa9
/he distinction between a transfer inter vivos and mortis causa is
important as the alidity or reocation of the donation depends upon its
nature'
4f the donation is inter vivos# it must be executed and accepted with the
formalities prescribed by Articles I@D and I@K# except when it is
onerous in which case the rules on contracts apply'
4f it is mortis causa# the donation must be in the form of a will# with all
the formalities for the alidity of wills# otherwise it is oid and cannot
transfer ownership' Moreoer# mortis causa can be reo9ed any time
before the death of the donor' !Ganuelas )awed"
What clauses are found in a deed of donation?
&' Eabendum or warranty clause !wherein grantor transfers
ownership"
*' $edendum or reseration clause !wherein grantor reseres
something new to himself"
-' Acceptance clause
)ase doctrines
4t is a settled rule that the title gien to a deed of donation is not the
determinatie factor which ma9es the donation inter vivos or mortis
causa/
4n case of doubt# the coneyance should be deemed donation inter
vivos rather than mortis causa# in order to aoid uncertainty as to the
ownership of the property subject of the deed' !3uig 3enaflorida 2 but
see boo9 which cites the same case but says the opposite"
Donations inter vivos are immediately operatie# een if the actual
execution may be deferred until the death of the donor' Mortis causa#
nothing is coneyed to the grantee and nothing is ac%uired by the latter#
until the death of the grantor7testator# the disposition being until then
ambulatory and not final' !3uig"
Acceptance clause is a mar9 that the donation is inter vivos'
Acceptance is a re%uirement for donations inter vivos/ Donations moris
causa are not re%uired to be accepted by the donees during the donors
lifetime' !Gestopa )A"
A limitation on the right to sell during the donors lifetime implied that
ownership had passed to the donees and donation was already
effectie during the donors lifetime' !Gestopa"
o $eiterated in Alejandro GeraldeG8 )ondtion that donees
cannot sell during donors lifetime to a third person the donated
property implies immediate passage of ownership and#
therefore donation is inter vivos/
/he reseration of lifetime usufruct indicates that the donor intended to
transfer the na9ed ownership oer the properties# thus ma9ing it inter
vivos' !Gestopa"
Cactors in determining whether a donation is one of mortis causa8
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&' 4t coneys no title or ownership to the transferee before the death of
the transferor5 or what amounts to the same thing# that the
transferor should retain the ownership !full or na9ed" and control of
the property while alie5
*' /he before his death# the transfer should be reocable by the
transferor at will# ad nutum5 but reocability may be proided for
indirectly by means of a resered power in the donor to dispose of
the properties coneyed5 and
-' /hat the transfer should be oid if the transferor should surie the
transferee !Maglasang Eeirs of )oraGon )abatingan"
?ne of the decisie characteristics of a donation mortis causa is that the
transfer should be considered oid if the donor should surie the donee
!Maglasang"
Donations mortis causa must be executed in accordance with the
re%uisites on solemnities of wills and testaments under Articles D;< and
D;H of the )iil )ode
Art& 2.9& The "i/ing o" an e'ent or the im#osition o" a s,s#ensi'e
con$ition+ which may ta-e #lace eyon$ the nat,ral e/#ectation o" li"e
o" the $onor+ $oes not $estroy the nat,re o" the act as a $onation inter
'i'os+ ,nless a contrary intention a##ears& HnI
Donation inter vivos subject to suspensie condition
/his article contemplates a situtation where the donor intends the
donation to ta9e effect during his lifetime but he imposes suspensie
condition which may or may not ta9e place beyond his lifetime'
/he fact that the eent happens or the condition is fulfilled after the
donors death does not change the nature of the act as a donation inter
vivos'
/he effect of the fulfillment of the suspensie condition is retroactie to
the ma9ing of the donation'
.Q).3/4?=8 when the donor really intended that the donation should
ta9e effect after his death' /hus# mortis causa'
Art& 2.1& <hen a #erson $onates something+ s,!ect to the resol,tory
con$ition o" the $onorJs s,r'i'al+ there is a $onation inter 'i'os& HnI
Donation inter ios subject to a resolutory condition
4n these cases# the ownership of the donated property is immediately
transferred to the donee upon perfection of the donation once
acceptance by the donee is made 9nown to the donor'
A donation subject to a resolutory condition ta9es effect immediately but
shall become inefficacious upon the happening of the eent which
constitutes the condition'
.en if the donation is subject to the resolutory condition of the donors
surial# the donation is still inter vivos/
o 4 will donate this land to you# but if 4 surie World War 444# 4 will
get it bac9' 4f 4 surie World War 444# the donation is rescinded'
4f 4 dont ma9e it# then it continues in effect'
Art& 2.)& 8onations which are to ta-e e""ect inter 'i'os shall e
go'erne$ y the general #ro'isions on contracts an$ oligations in all
that is not $etermine$ in this Title& H0)1I
Art& 2..& 8onations with an onero,s ca,se shall e go'erne$ y the
r,les on contracts an$ rem,neratory $onations y the #ro'isions o"
the #resent Title as regar$s that #ortion which e/cee$s the 'al,e o" the
,r$en im#ose$& H0))I
$ules goerning onerous donations or onerous portions of donations
/his article ma9es the rules of contracts directly applicable to onerous
donations and to remuneratory donations as to the onerous portion
thereof
?nerous donations are donations for a aluable consideration' /hey
include those purely onerous or those in which the consideration is
considered the e%uialent of the property donated and the modal but
only as regards that portion thereof considered the e%uialent of the
alue of the burden imposed'
$emuneratory donations are true or simple donations because the
consideration is really the liberality of the donor since the serices
rendered by the donee do not constitute a recoerable debt' Eoweer#
the special rules on reocation should not apply to the portion of the
donation e%uialent to the e%uitable alue of the serices receied by
the donor'
/he remuneratory donations referred to in Article I-- are the modal
donations or those which impose 0upon the donee a burden which is
less than the alue of the thing gien1 as regards that portion which
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exceeds the alue of the burden# it shall be goerned by the proisions
on donations'
/here is no burden imposed on remuneratory donations' 4f a burden is
imposed# it becomes onerous as regards the alue of the burden'
)ase doctrines
As onerous donations are goerned by the rules on contracts# for there
to warrant a reocation of the donation# there must be a substantial
breach of the conditions in the deed' Mere casual breaches will not
warrant reocations' !)A Mulo $) 6ishop"
)onsidering that the donees acts did not detract from the ery purpose
for which the donation was made but precisely to achiee such purpose
!of the donation"# a lac9 of prior written consent of the donor !which was
a condition of the donation" would only constitute casual breach of the
deed' !)A Mulo"
Art& 2.4& The $onation is #er"ecte$ "rom the moment the $onor -nows
o" the acce#tance y the $onee& H0).I
3erfection of donation
/here is no donation without acceptance by the donee'
Acceptance is indispensable because nobody is obliged to receie a
benefit against his will'
4ts absence ma9es the donation null and oid'
/he acceptance must be made during the lifetime of the donor and the
donee'
3erfection ta9es place# not from the time of acceptance by the donee#
but from the time it is made 9nown# actual or constructiely# to the
donor'
4f the donation and acceptance are in the same public instrument#
signed by both and in the presence of witnesses# the donation is
deemed already perfected inasmuch as 9nowledge of the acceptance is
established by the instrument itself'
4f acceptance was made in a separate instrument# there must be proof
that a formal notice of such acceptance was receied by the donor# and
in case the donation inoles immoable property# noted in both the
deed of donation and the separate instrument embodying the
acceptance' !+ee Art I@K"
What if there is reocation?
4f the donor reo9es the donation before learning of the acceptance by
the donee# there is no donation'
6ut once it is perfected# it cannot be reo9ed without the consent of the
donee except8
&' 4nofficiousness !Art IH;"
*' Cailure of the donee to comply with the charges imposed in the
donation !Art IH@"
-' 4ngratitude !Art IH<"
4s registration necessary?
As between the parties to the donation and their assigns# it is not
needed for its alidity and efficacy' !6ut it must be in a public document
for immoables>"
6ut for third parties to be bound# there must be registration'
)ase doctrines
/he purpose of the formal re%uirement for acceptance of a donation is
to ensure that such acceptance is duly communicated to the donor' /he
actual 9nowledge by the donor of the construction and existence of the
school building pursuant to the condition of the donation fulfills the legal
re%uirement that the acceptance of the donation by the donee be
communicated to the donor' !$epublic +ilim"
:;APTER )
PERSONS <;O MAY >IVE OR RE:EIVE A 8ONATION

Art& 2.*& All #ersons who may contract an$ $is#ose o" their #ro#erty
may ma-e a $onation& H0)4I
)apacity of donor to contract and dispose of property
/he donor must hae both the capacity to contract and the capacity to
dispose of his property in order that he may ma9e a donation'
/hose who cannot gie consent to a contract cannot be donors5 and
donation made by one who does not hae the free disposal of the thing
donated and to alienate it shall not be alid'
4t is possible# howeer# for a person to hae capacity to contract but not
the capacity to dispose of property'
o (nder the Camily )ode# eery donation between spouses
during the marriage shall be oid except moderate gifts on the
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occasion of any family rejoicing' /he prohibition applies also to
persons liing together as husband and wife without a alid
marriage# or in illicit relations'
o =either spouse may donate any community property nor
conjugal partnership property without the consent of the other#
except moderate donations for charity or on occasion of family
rejoicing or family distress'
)an corporations ma9e donations?
Mes' 6ut they cant gie donations to aid any political party or candidate
or for purposes of partisan political actiity'
Who are incapacitated to donate?
&' Minors
*' 4nsane or demented persons
-' Deaf7mutes who do not 9now how to write
@' )orporations !with regard to giing donations to aid any political party"
<' Guardians and trustees !with regard to property entrusted to them"
H' +pouses !to each other# except moderate gifts"
I' A spouse !to others without the consent of the other spouse# except
moderate donations"
Art& 2.0& >,ar$ians an$ tr,stees cannot $onate the #ro#erty entr,ste$
to them& HnI
Donation by a guardian or trustee of wards property
Generally# guardians and trustees cannot be donors of their wards
properties for the simple reason that they are not the owners of the
same'
.xception8 With respect to the trustee# donation is permitted
notwithstanding that the trustee receies nothing in exchange directly# if
the donation is onerous and is beneficial to the beneficiary'
Art& 2.2& The $onorJs ca#acity shall e $etermine$ as o" the time o" the
ma-ing o" the $onation& HnI
)apacity of donor at time of ma9ing the donation
/he donation is perfected from the moment the donor 9nows of the
acceptance by the donee'
Eoweer# this article seems to imply that the donors capacity must exist
at the time of ma9ing the donation and not from the time of 9nowledge
by the donor of the acceptance# that is# at the perfection of the act
A juridical absurdity arises in case the donor has no capacity to act at
the time the acceptance is coneyed to him' +ince legally# the donor
cannot be said to hae 9nowledge of the acceptance# there can be no
perfection of the donation which presupposes a meeting of the minds
between the donor and the donee who are both capacitated'
/o aoid the apparent contradiction# the phrase 0ma9ing of the donation1
should be construed to mean 0perfection of the donation1
Eence# the donation would be alid# although the donor was insane at
the time he signs the deed of donation or informs the donee of the
donation but sane when he learns of the acceptance' /he donor may
as9 for annulment of the donation if he so desires
/he subse%uent incapacity of the donor does not affect the alidity of
the donation' /his is similar to the rule in succession'
Art& 2.5& Al those who are not s#ecially $is6,ali"ie$ y law there"or
may acce#t $onations& H0)*I
)apacity of the donee
Generally# all persons# whether natural or artificial# may be donees'
A donee need not be sui juris# with complete legal capacity to bind
himself by contract'
As long as he is 0not specially dis%ualified by law1# he may accept
donations'
+o# donations may be made to8
&' 4ncapacitated persons such as minors and others who cannot
enter into a contract#
*' and also to conceied and unborn children'
Art& 2.7& The "ollowing $onations shall e 'oi$%
H1I Those ma$e etween #ersons who were g,ilty o" a$,ltery
or conc,inage at the time o" the $onation(
H)I Those ma$e etween #ersons "o,n$ g,ilty o" the same
criminal o""ense+ in consi$eration thereo"(
H.I Those ma$e to a #,lic o""icer or his wi"e+ $escen$ants an$
ascen$ants+ y reason o" his o""ice&
In the case re"erre$ to in No& 1+ the action "or $eclaration o"
n,llity may e ro,ght y the s#o,se o" the $onor or $onee( an$ the
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g,ilt o" the $onor an$ $onee may e #ro'e$ y #re#on$erance o"
e'i$ence in the same action& HnI
Donations oid on moral grounds
/his article declares null and oid ab initio the donations referred to'
What are the different oid donations?
&' 6etween persons who were guilty of adultery and concubinage at
the time of the donation
*' 6etween persons found guilty of the same criminal offense# in
consideration thereof
-' Made to a public officer or his wife# descendants and ascendants#
by reason of his office
@' 6etween spouses during the marriage# except moderate gifts which
they may gie each other on the occasion of any family rejoicing
!Art DI# Camily )ode"
<' Donations of community property by a spouse without the consent
of the other# except moderate donations !Art KD# Camily )ode"
H' Donations of conjugal partnership property by a spouse without the
consent of the other# except moderate donations !Art &*<# Camily
)ode"
I' Donations to those proided for in Article I@;# in cross reference to
Art &;*I and &;-*'
D' Donations accepted by agents without special authority to do so
!Art I@<"
K' Donations of immoables which dont conform to the form
prescribed in Art I@K
Donations between persons guilty of adultery and concubinage
/he ciil action for declaration of nullity may be brought after the
persons inoled hae been found guilty by final judgment in a criminal
proceeding of adultery or concubinage'
4n iew of the last paragraph# coniction for adultery or concubinage in a
criminal action is not essential'
/he guilt of the donor and the donee may be proed by a mere
preponderance of eidence in a ciil proceeding to nullify the donation#
alleging the adultery or concubinage as the cause of action for the
declaration of nullity'
/he donation is oid# whether made before or after the illicit relations# if
gien in consideration thereof# either as inducement or compensation'
What if the donation is gien in contemplation of the termination of the
relationship# is the donation still oid?
o +ince the purpose is praiseworthy# good for all concerned# it should
be considered alid'
o /his is particularly true when the woman !donee" was a ictim of
deceit by the man'
o Eoweer# where the illicit relation was oluntary# and the donation
was demanded by the woman as a price of the termination of their
relationship# the donation is oid'
What if the concubine did not 9now that the man she lied with was
actually married?
o /hen she is not guilty of concubinage and not dis%ualified from the
donation'
Donations between persons found guilty of the same criminal offense
/his rules presupposes prior criminal coniction in a criminal action5
hence proof of guilty by mere preponderance of eidence is not
sufficient'
/he donation here is remuneratory or onerous' 4t is oid whether made
before or after the commission of the crime if it is in consideration
thereof'
4t is still oid although the crime is not carried out because it is based on
an unlawful cause'
Donations made to a pubic officer# by reason of his office
4ndirect bribery>
/he guilt need not be established by proof beyond reasonable doubt in
a criminal proceeding for bribery'
A ciil action to declare the donation oid may be maintained by the
proper party in interest'
Donations made to persons other than those mentioned are alid#
unless# of course# they are intended for the public officer'
Art& 249& Inca#acity to s,ccee$ y will shall e a##licale to $onations
inter 'i'os& HnI
4ncapacity to succeed by will
/his article expressly ma9es the proisions on incapacity to succeed by
will applicable to donations inter vivos
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?f course# they are also applicable to donations mortis causa which are
goerned by the law on succession
According to Art &;*I# the following are incapable of becoming donees8
&' /he priest who heard the confession of the donor during his last
illness# or the minister of the gospel who extended spiritual aid to
him during the same period
*' /he relaties of such priest or minister of the gospel within the
fourth degree# the church# order# chapter# community# organiGation#
or institution to which such priest or minister may belong
-' A guardian with respect to donations gien by a ward in his faor
before the final accounts of the guardianship hae been approed#
een if the donor should die after the approal thereof5
neertheless# any proision made by the ward in faor of the
guardian when the latter is his ascendant# descendant# brother#
sister# or spouse# shall be alid
@' Any physician# surgeon# nurse# health officer or druggist who too9
care of the donor during his last illness
<' 4ndiiduals# associations# and corporations not permitted by law to
inherit'
According to Art &;-*# there are certain people who are deemed
incapable to inherit by reason of unworthiness' /he donation made to a
person who falls under any of its proisions is alid if the donor had
9nowledge of the act of unworthiness or haing 9nown it subse%uently#
he should condone the same in writing' .en in the absence of pardon#
the donation is not subject to reocation because donations may be
reo9ed only for causes mentioned in Articles IH;# IH@ and IH<' +o#
who are these people?
&' 3arents who hae abandoned their children or induced their
daughters to lead a corrupt or immoral life# or attempted against
their irtue5
*' Any person who has been conicted of an attempt against the life
of the testator# his or her spouse# descendants# or ascendants5
-' Any person who has accused the testator of a crime for which the
law prescribes imprisonment for six years or more# if the accusation
has been found groundless5
@' Any heir of full age who# haing 9nowledge of the iolent death of
the testator# should fail to report it to an officer of the law within a
month# unless the authorities hae already ta9en action5 this
prohibition shall not apply to cases wherein# according to law# there
is no obligation to ma9e an accusation5
<' Any person conicted of adultery or concubinage with the spouse of
the testator5
H' Any person who by fraud# iolence# intimidation# or undue influence
should cause the testator to ma9e a will or to change one already
made5
I' Any person who by the same means preents another from ma9ing
a will# or from reo9ing one already made# or who supplants#
conceals# or alters the latterSs will5
D' Any person who falsifies or forges a supposed will of the decedent'
Who are incapable of becoming donees?
&' 3ersons guilty of concubinage or adultery at the time of donation !but
only between them"
*' 3ersons found guilty of the same criminal offense# in consideration
thereof !but only between them"
-' 3ublic officers# etc by reason of their office
@' /hose mentioned in Art &;*I
<' /hose mentioned in Art &;-* !unworthy people"
Art& 241& Minors an$ others who cannot enter into a contract may
ecome $onees ,t acce#tance shall e $one thro,gh their #arents or
legal re#resentati'es& H0)0aI
?9# tell me more about donations to minors and others without capacity to
contact
Donation re%uires acceptance by the donee'
4f the donee is a minor or without capacity to enter into a contract# the
acceptance must be made by the parents or legal representatie of the
donee'
/his is especially true if the donation is onerous or imposes a charge or
burden'
4t is clear that the donee may not alidly accept a donation although it
imposes no burden'
4n any case# when a formal or written acceptance is re%uired by the
donor# such acceptance must be made by the parents or legal
representatie'
Art& 24)& 8onations ma$e to concei'e$ an$ ,norn chil$ren may e
acce#te$ y those #ersons who wo,l$ legally re#resent them i" they
were alrea$y orn& H0)2I
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PROPERTY NOTES
)an you donate to conceied and unborn children?
Mes>
De :eon once again states the obious by saying# 0A conceied and
unborn child cannot accept a donation because it is not yet a natural
person'1
/he acceptance must be made by those persons who would legally
represent them if they were already born'
Art& 24.& 8onations ma$e to inca#acitate$ #ersons shall e 'oi$+
tho,gh sim,late$ ,n$er the g,ise o" another contract or thro,gh a
#erson who is inter#ose$& H0)5I
Who are the incapacitated persons referred to here?
/hey are those specially dis%ualified by law to become donees# such as
those in Articles I-K and I@;'
Donations to such persons are oid een if simulated under the guise of
another contract or through an intermediary'
Art& 244& 8onations o" the same thing to two or more $i""erent $onees
shall e go'erne$ y the #ro'isions concerning the sale o" the same
thing to two or more $i""erent #ersons& HnI
Donations of the same thing to different donees
/his article expressly ma9es applicable by analogy the rules on sales
-

of the same thing to two ore more different endees'
Eoweer# this article has had its sure of criticism' +ee boo9'
Art& 24*& The $onee m,st acce#t the $onation #ersonally+ or thro,gh an
a,thori4e$ #erson with a s#ecial #ower "or the #,r#ose+ or with a
general an$ s,""icient #ower( otherwise+ the $onation shall e 'oi$&
H0.9I
3
0Art' &<@@' 4f the same thing should hae been donated to different donees# the ownership
shall be transferred to the person who may hae first ta9en possession thereof in good faith#
if it should be moable property' +hould it be immoable property# the ownership shall belong
to the person ac%uiring it who in good faith first recorded it in the $egistry of 3roperty' +hould
there be no inscription# the ownership shall pertain to the person who in good faith was first
in the possession5 and# in the absence thereof# to the person who presents the oldest title#
proided there is good faith'1
Who must accept the donation?
&' /he donee personally# or
*' An authoriGed person or an agent# with a special power for the
purpose# or with a general and sufficient power
4f not?
/hen# the donation is oid'
Does the parent o% a minor need a special power %or the purpose o%
accepting a donation9 3robably not# a parent is not considered an agent of a
minor' /hey are considered legal guardians' !6ut 4m not sure'"
Art& 240& Acce#tance m,st e ma$e $,ring the li"etime o" the $onor an$
o" the $onee& HnI
When should acceptance be made for inter vivos ?
A donation inter vivos ta9es effect during the lifetime of the donor and
the donee# and to ta9e effect# it must be accepted by the donee'
Eence# acceptance by the donee !or his representatie" must be made
during his lifetime and that of the donor'
.en if the donation is made during their lifetime# but the donor dies
before the acceptance is communicated to him# the donation is not
perfected'
Eow about for mortis causa9
Donations mortis causa are accepted only after the donors death
because they parta9e of a will# and are goerned by the rules on
succession'
4f the acceptance was made before the donors death# the donation
mortis causa although alidly executed# cannot be gien force and
effect' +uch acceptance is oid' !6ut is the donation oid? )an there be
a subse%uent acceptance after the death of the donor?"
Art& 242& Persons who acce#t $onations in re#resentation o" others
who may not $o so y themsel'es+ shall e olige$ to ma-e the
noti"ication an$ notation o" which Article 247 s#ea-s& H0.1I
When does this article apply?
&' When acceptance is made through the parents# legal representatie# or
authoriGed agent of the donee5
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*' /he property donated is immoable# and
-' /he acceptance is not made in the same deed of donation but in a
separate public instrument'
/he re%uirement of notification of the donor and notation in both
instruments that such notification has been made is necessary for the
alidity and perfection of the donation'
Art& 245& The $onation o" a mo'ale may e ma$e orally or in writing&
An oral $onation re6,ires the sim,ltaneo,s $eli'ery o" the
thing or o" the $oc,ment re#resenting the right $onate$&
I" the 'al,e o" the #ersonal #ro#erty $onate$ e/cee$s "i'e
tho,san$ #esos+ the $onation an$ the acce#tance shall e ma$e in
writing+ otherwise+ the $onation shall e 'oi$& H0.)aI
What are the rules for the formalities for donations for moables?
When the alue of property exceeds 3<;;;# the donation and the
acceptance must always be made in writing5 otherwise the donation is
oid# een if there is simultaneous deliery of the thing'
o /he donation and the acceptance need not be made in a public
instrument# nor is it necessary that the acceptance be made in the
same deed of donation'
When the alue of property is 3<;;; or less# it may be made orally or in
writing'
o 4f made orally# there must be simultaneous deliery of the thing or
of the document representing the right donated# otherwise# the
donation is oid' /here must be acceptance which may be oral or
written' /he receipt of the deliery by the donee constitutes implied
acceptance'
o 4f made in writing# the donation is alid although there is no
simultaneous deliery' Again# there must be acceptance which may
also be made orally or in writing'
4n eery case# the acceptance of the donee must be made 9nown to the
donor for perfection of a donation to ta9e place'
Art& 247& In or$er that the $onation o" an immo'ale may e 'ali$+ it
m,st e ma$e in a #,lic $oc,ment+ s#eci"ying therein the #ro#erty
$onate$ an$ the 'al,e o" the charges which the $onee m,st satis"y&
The acce#tance may e ma$e in the same $ee$ o" $onation or
in a se#arate #,lic $oc,ment+ ,t it shall not ta-e e""ect ,nless it is
$one $,ring the li"etime o" the $onor&
I" the acce#tance is ma$e in a se#arate instr,ment+ the $onor
shall e noti"ie$ thereo" in an a,thentic "orm+ an$ this ste# shall e
note$ in oth instr,ments& H0..I
Cormalities for donation of immoables
/his article does not apply to onerous donations since they are
goerned by the laws of obligations and contracts
Donation of real property# which is a solemn contract# is oid without the
formalities stated in Article I@K
+o# what are the rules?
When donation and acceptance are in the same instrument# the
re%uirements are8
&' /he donation must be in a public document or instrument5 and
*' /he instrument must specify the property donated and the charges#
if any# which the donee must satisfy'
When the donation and acceptance are in separate instruments# the
re%uirements are8
&' /he donation must be in a public document or instrument5
*' /he instrument must specify the property donated and the charges#
if any# which the donee must satisfy
-' /he acceptance by the donee must be in a public document
@' 4t must be done during the lifetime of the donor
<' /he donor must be notified in authentic form of the acceptance of
the donation in a separate instrument5 and
H' /he fact that such notification has been made must be noted in
both instruments'
o 6ut see the $ep +ilim case wherein the notification was not
noted in the instrument# but still# the +) ruled that the donation
was alid'
/he donation of real property in a priate instrument is null and oid#
and the donee may not compel the donor to execute a public instrument
!&-<I" which applies only when the contract or donation is alid and
enforceable' /he donation cannot be ratified'
$egistration is not necessary for the donation to be considered alid
and effectie'
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Crom the time the public instrument of donation is simultaneously
executed and ac9nowledged by the donor and the donee# the latter
ac%uires the ownership of the donated property# since the execution of a
public instrument of coneyance is one of the recogniGed ways in which
tradition of immoable property may be made# unless the contrary is
expressed or inferable from the terms of the deed'
/itle to immoable property does not pass from the donor to the donee
by irtue of donation until and unless it has been accepted in public
instrument and the donor duly notified thereof'
Where the donation is on its face absolute and unconditional# it is error
to imply that the possession or usufruct is excluded from the donation or
the donation is subject to any charge or burden' /he absence in the
deed of any reseration in faor of the donor is proof that no such
reseration was eer intended considering that under the law# a
donation of immoable by public instrument is re%uired to specify 0the
alue of the charges1 that the donee must assume'
)ase doctrines
/he best or primary eidence of a donation of real property is an
authentic copy of the deed of donation with all the formalities re%uired
by Article I@K' When a party wants to proe the contents of a
documents# the best eidence is the original writing itself'
3rior to the introduction of secondary eidence# a party must establish
the existence and due execution of the instrument# after which he must
proe that the document was lost or destroyed' !D.)+ Del $osario"
Where the deed of donation fails to show the acceptance# or where the
formal notice of the acceptance# made in a separate instrument is not
gien to the donor or else not noted in the deed of donation and in the
separate acceptance# the donation is null and oid' !+umipat 6anga"
:;APTER .
E33E:T O3 8ONATIONS AN8 LIMITATIONS T;EREON

Art& 2*9& The $onations may com#rehen$ all the #resent #ro#erty o"
the $onor+ or #art thereo"+ #ro'i$e$ he reser'es+ in ",ll ownershi# or in
,s,"r,ct+ s,""icient means "or the s,##ort o" himsel"+ an$ o" all
relati'es who+ at the time o" the acce#tance o" the $onation+ are y law
entitle$ to e s,##orte$ y the $onor& <itho,t s,ch reser'ation+ the
$onation shall e re$,ce$ in #etition o" any #erson a""ecte$& H0.4aI
$eseration of sufficient means for support of donor and relaties
A donor may donate all his present property or part thereof proided he
reseres sufficient property in ownership or in usufruct for the support of
himself and of all relaties who are entitled to be supported by him at
the time of the perfection of the donation
3resent property means property which the donor can rightfully dispose
of at the time of the donation'
o /he share in an existing inheritance is present property
although the heir has not yet entered into the possession of the
same'
/he donation of present property without the re%uired reseration is not
null and oid in its entirety5 it is only subject to reduction by the court on
petition of the party prejudiced by the donation 2 the donor himself# any
dependent relatie or creditor of the donor'
/he limitation applies to simple# remuneratie and modal donations but
not to onerous ones which are goerned by the law on obligations and
contracts# nor to donations mortis causa for they ta9e effect only after
the donors death'
Donations propter nuptias cannot exceed more than one7fifth of the
present property of the future spouses if in their marriage settlements
executed before the marriage# they agree upon a regime other than the
absolute community of property'
@
)ase doctrines
When the dnor stated that she would continue to retain the 0possession#
cultiation# haresting and all other rights and atrtributes of ownership1
she meant only dominium utile# not the full ownership' /he words 0rights
and attributes of ownership1 should be construed ejusdem generis with
4
Art' D*' Donations by reason of marriage are those which are made before its celebration# in
consideration of the same# and in faor of one or both of the future spouses' !&*H"
Art' D-' /hese donations are goerned by the rules on ordinary donations established in /itle 444 of
6oo9 444 of the )iil )ode# insofar as they are not modified by the following articles' !&*Ia"
Art' D@' 4f the future spouses agree upon a regime other than the absolute community of property#
they cannot donate to each other in their marriage settlements more than one7fifth of their present
property' Any excess shall be considered oid'
Donations of future property shall be goerned by the proisions on testamentary succession and
the formalities of wills' !&-;a"
Art' D<' Donations by reason of marriage of property subject to encumbrances shall be alid' 4n
case of foreclosure of the encumbrance and the property is sold for less than the total amount of
the obligation secured# the donee shall not be liable for the deficiency' 4f the property is sold for
more than the total amount of said obligation# the donee shall be entitled to the excess' !&-&a"
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the preceding rights of 0possession# cultiation and haresting1
expressly enumerated in the deed' !)ueas )ueas"
Art& 2*1& 8onations cannot com#rehen$ ",t,re #ro#erty&
=y ",t,re #ro#erty is ,n$erstoo$ anything which the $onor
cannot $is#ose o" at the time o" the $onation& H0.*I
Donation of future propertyJ 3$?E464/.D>
Cuture property is anything which the donor cannot dispose of at the
time of the donation' 4n other words# it is property that belongs to others
at the time the donation is made and it is immaterial that it may
subse%uently belong to the donor'
=obody can dispose of that which does not belong to him' =emo emo'
*uture inheritance cannot be donated because it is future property but
upon the death of his predecessor# the inheritance ceases to be future
and conse%uently# may be the object of donation een if the properties
constituting the inheritance hae not yet been deliered'
3roperty# the ac%uisition of which by the donor depends upon the
fulfillment of a suspensie condition# may be donated because# although
the property may be as to him still 0future property1# the effects of the
fulfillment of the condition shall retroact to the day of the constitution of
the contract'
Another reason is that the donor by desisting to ac%uire a future
property donated would be reo9ing the donation contrary to the rule
that donations inter vivos are irreocable sae for causes proided by
law'
)ase doctrine
A donor cannot lawfully coney what is not his property' Where a parcel
of land was the registered property of another# and the donee failed to
show how her donor ac%uired it from the registered owner# it is held that
the donor has no right# title or interest in said land which he could
lawfully coney'
Art& 2*)& The #ro'isions o" Article 2*9 notwithstan$ing+ no #erson may
gi'e or recei'e+ y way o" $onation+ more than he may gi'e or recei'e
y will&
The $onation shall e ino""icio,s in all that it may e/cee$ this
limitation& H0.0I
Amount of donation limited to what donor may gie by will
Article I<* ma9es applicable to donations the limitation on testamentary
disposition with respect to the amount thereof'
/he limitation is really on the right of the donor to gie rather than on the
right of the donee to receie'
A person may not donate more than he can gie by will and a person
may not receie by way of donation more than what the donor is
allowed by law to gie by will5 otherwise# the donation shall be
inofficious and shall be reduced with regard to the excess'
/he limitation applies where the donor has forced or compulsory heirs'
/he purpose is not to diminish the legitimes to which they are entitled'
o 6ut the limitation is enforceable only after the death of the
donor because it is only then when it can be determined
whether or not the donation is inofficious5 by contrasting its
alue with the net alue of the estate of the donor deceased'
o /he donation is alid during the lifetime of the donor'
Art& 2*.& <hen a $onation is ma$e to se'eral #ersons !ointly+ it is
,n$erstoo$ to e in e6,al shares+ an$ there shall e no right o"
accretion among them+ ,nless the $onor has otherwise #ro'i$e$&
The #rece$ing #aragra#h shall not e a##licale to $onations
ma$e to the h,san$ an$ wi"e !ointly+ etween whom there shall e a
right o" accretion+ i" the contrary has not een #ro'i$e$ y the $onor&
H0.2I
Donation to seeral donees jointly
/he rules are as follows8
&' /he donation is understood to be in e%ual shares# unless the donor
has proided otherwise'
*' /here shall be no right of accretion among the donees# unless the
donor has otherwise proided'
-' 4f the donees are husband and wife# there shall be aright of
accretion# if the contrary has not been proided by the donor'
4f there is no accretion among the donees# one cannot accept
independently for his co7donee who is not present'
Art& 2*4& The $onee is s,rogate$ to all the rights an$ actions which in
case o" e'iction wo,l$ #ertain to the $onor& The latter+ on the other
han$+ is not olige$ to warrant the things $onate$+ sa'e when the
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$onation is onero,s+ in which case the $onor shall e liale "or
e'iction to the conc,rrence o" the ,r$en&
The $onor shall also e liale "or e'iction or hi$$en $e"ects in
case o" a$ "aith on his #art& H0.5aI
$ights and actions
Eere are the rules8
&' /he donee is subrogated to all the rights and actions which in case
of eiction would pertain to the donor
*' 4f the donation is simple or remuneratie# the donor is not liable for
eiction or hidden defects# becaue the donation is gratuitous5
-' .en if the donation is simple or remuneratie# the donor is liable
for eiction or hidden defects in case of bad faith on his part
!'nowingly donating a chic'en with avian %lu) or warranty is
expressly stipulated5 and
@' 4f the donation is onerous !modal donation# according to de :eon"#
the donor is liable on his warranty but only to the extent of the
burden'
Art& 2**& The right to $is#ose o" some o" the things $onate$+ or o"
some amo,nt which shall e a charge thereon+ may e reser'e$ y the
$onor( ,t i" he sho,l$ $ie witho,t ha'ing ma$e ,se o" this right+ the
#ro#erty or amo,nt reser'e$ shall elong to the $onee& H0.7I
Donation with right of donor to dispose of part of object donated# resered'
/he donor may resere the right to dispose of some of the things or part
of the thing donated or some amount or income thereof'
/he donation is actually conditional# and the condition is fulfilled if the
donor dies without exercising the right he resered# either by acts inter
vivos or mortis causa/
$on donates to Earry a house and an apartment with the proision that $on
could sell the house and gie the rents !or a portion" of the apartment for <
years to Cran9' /he donation of the house with a reseration of the right to
dispose should be considered mortis causa# and therefore# must follow the
formalities prescribed for ma9ing a will' /he donation of the apartment is
inter vivos/
Art& 2*0& The ownershi# o" #ro#erty may also e $onate$ to one #erson
an$ the ,s,"r,ct to another or others+ #ro'i$e$ all the $onees are
li'ing at the time o" the $onation& H049aI
=a9ed ownership and usufruct separately donated
/he donor may donate separately the na9ed ownership !dominium
directum" to one person and the usufruct !dominium utile" to another'
/o be alid# the donee must be 0liing at the time of the donation1# which
is to be understood to refer to the time of the perfection of the donation'
A donation to a child who was not yet conceied at the time it was made
is oid'
4f the property donated is immoable# the formalities for donations of
real property must be complied with'
Art& 2*2& Re'ersion may e 'ali$ly estalishe$ in "a'or o" only the
$onor "or any case an$ circ,mstances+ ,t not in "a'or o" other
#ersons ,nless they are all li'ing at the time o" the $onation&
Any re'ersion sti#,late$ y the $onor in "a'or o" a thir$
#erson in 'iolation o" what is #ro'i$e$ in the #rece$ing #aragra#h
shall e 'oi$+ ,t shall not n,lli"y the $onation& H014aI
Donation with proision for reersion
/he donor may proide for reersion# whereby the property shall go
bac9 to the donor or some other person'
4t may be alidly established for any case and circumstances'
4f the reision is in faor of other persons# they must be liing at the time
of the donation'
/hus# a reersion in faor of an unconceied child is oid# but such
nullity shall not inalidate the donation' /he reersion which is merely
an accessory clause is simply disregarded'
Art& 2*5& <hen the $onation im#oses ,#on the $onee the oligation to
#ay the $ets o" the $onor+ i" the cla,se $oes not contain any
$eclaration to the contrary+ the "ormer is ,n$erstoo$ to e liale to #ay
only the $ets which a##ear to ha'e een #re'io,sly contracte$& In no
case shall the $onee e res#onsile "or the $ets e/cee$ing the 'al,e
o" the #ro#erty $onate$+ ,nless a contrary intention clearly a##ears&
H04)aI
Art& 2*7& There eing no sti#,lation regar$ing the #ayment o" $ets+
the $onee shall e res#onsile there"or only when the $onation has
een ma$e in "ra,$ o" cre$itors&
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PROPERTY NOTES
The $onation is always #res,me$ to e in "ra,$ o" cre$itors+
when at the time thereo" the $onor $i$ not reser'e s,""icient #ro#erty
to #ay his $ets #rior to the $onation& H04.I
:iability of donee to pay debts of donor
Eere are the rules'
&' Where donor imposes obligation upon the donee8
a' /he donee is liable to pay only debts preiously
contracted5
b' Ee is liable for subse%uent debts only when there is a
stipulation to that effect5 and
c' Ee is not liable for debts in excess of the alue of the
donation receied# unless the contrary is intended'
*' Where there is no stipulation regarding the payment of debts
a' /he donee is generally not liable to pay the donors debts5
b' Ee is responsible therefore only if the donation has been
made in fraud of creditors !which is always presumed
when at the time of the donation the donor has not left
sufficient assets to pay his debts"
c' Ee is not liable beyond the alue of the donation receied'
?rdinarily# the donee should not be made liable to pay the donors debt
beyond the alue of the thing donated'
Donation in fraud of creditors
3resumed in fraud when at the time thereof the donor did not resere
sufficient property to pay his debts prior to the donation'
/he 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
passed into the hands of a third person in good faith for alue' 4n the
latter case# the donee shall answer for damages if he acted in bad faith'
)ase doctrine
$e%uisites for an accion pauliana8
&' )redit prior to alienation# een if demandable later
*' Debtor has made a subse%uent contract coneying a patrimonial
benefit to a -
rd
person
-' /he creditor has no legal remedy to satisfy his claim
@' /he act being impugned is fraudulent
<' /he third person who receied the property coneyed# if is by
onerous title# has been an accomplice in the fraud'
6ut remember that accion pauliana is subsidiary'

:;APTER 4
REVO:ATION AN8 RE8C:TION O3 8ONATIONS

Art& 209& E'ery $onation inter 'i'os+ ma$e y a #erson ha'ing no
chil$ren or $escen$ants+ legitimate or legitimate$ y s,se6,ent
marriage+ or illegitimate+ may e re'o-e$ or re$,ce$ as #ro'i$e$ in the
ne/t article+ y the ha##ening o" any o" these e'ents%
H1I I" the $onor+ a"ter the $onation+ sho,l$ ha'e legitimate or
legitimate$ or illegitimate chil$ren+ e'en tho,gh they e #osth,mo,s(
H)I I" the chil$ o" the $onor+ whom the latter elie'e$ to e
$ea$ when he ma$e the $onation+ sho,l$ t,rn o,t to e li'ing(
H.I I" the $onor s,se6,ently a$o#t a minor chil$& H044aI
Grounds for reocation and reduction of donation
&' $eocation affects the whole donation and is allowed during the lifetime
of the donor' /he grounds are8
a' 6irth# appearance# or adoption of a child !IH;"5
b' =on7fulfillment of a resolutory condition imposed by the donor
!IH@"5 and
c' 4ngratitude of the donee' !IH<"
*' $eduction generally affects a portion only of the donation !unless the
donee has no free portion left" and is allowed during the lifetime of the
donor or after his death' /he grounds are8
a' Cailure of the donor to resere sufficient means for support of
himself or dependent relaties5 !I<;"
b' Cailure of the donor to resere sufficient property to pay off his
existing debts !I<K"5
c' 4nofficiousness# that is# the donation exceeds that which the
donor can gie by will5 !I<*# II&" and
d' 6irth# appearance# or adoption of a child' !IH;"
A donation that has been duly perfected in accordance with law should
stand until after its reocation should hae been as9ed and granted in
the proper proceeding'
6irth# appearance# or adoption of a child
/his article applies to all donations inter vivos/ 4t does not apply8
a' to donations mortis causa for they are reocable at will by the
donor !testator"5
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PROPERTY NOTES
b' to onerous donations for they are really contracts5 and
c' to donations propter nuptias for they are reocable only for the
causes proided in the Camily )ode 2 see Art DH of the Cam
)ode
<
'
4t is applicable when the donor# at the time he made the donation# did
not hae any child or descendant or erroneously thought so5 otherwise#
Article II& in relation to Article I<* shall apply'
.ery donation is subject to reocation or reduction by the happening of
any of the eents mentioned which are in the nature of implied
resolutory conditions'
6irth of a child
Eere# the donor had no child whether legitimate# legitimated# or
illegitimate at the time of the donation# and thereafter# a child was born
een if posthumous'
What if the child was already conceied but not yet born# what proision
should apply# Article IH; or II&?
o 4t depends'
o 4f the donor was aware of such conception# Article II&' Eence#
he cannot reo9e the donation upon the birth of the child'
o 6ut# if he did not 9now of such conception when he made the
donation# the situation is similar to the appearance of an
absent child thought by the donor to be dead' Cor purposes of
the law# he had no child'
/he rule is that a conceied child is considered born
for all purposes faorable to it' +ince to consider the
child as already born would ma9e the donation
irreocable and would be unfaorable to it# the
subse%uent birth of the child should reo9e or reduce
the donation'
5
Art' DH' A donation by reason of marriage may be reo9ed by the donor in the following cases8
!&" 4f the marriage is not celebrated or judicially declared oid ab initio except donations made in
the marriage settlements# which shall be goerned by Article D&5
!*" When the marriage ta9es place without the consent of the parents or guardian# as re%uired by
law5
!-" When the marriage is annulled# and the donee acted in bad faith5
!@" (pon legal separation# the donee being the guilty spouse5
!<" 4f it is with a resolutory condition and the condition is complied with5
!H" When the donee has committed an act of ingratitude as specified by the proisions of the )iil
)ode on donations in general' !&-*a"
Appearance of a child
4n this case# the donor had only one child whom he belieed to hae
already died at the time of the donation'
/he note says 0child1# so the subse%uent appearance of a descendant#
li9e a grand9id# would not reo9e the donation
o 6ut the donation may be reduced under Article II& as
inofficious if it impairs the legitime of the descendant'
Adoption of a child
/he subse%uent adoption of a minor child is also a ground for the
reocation or reduction of a donation'
4ts an exception to the rule that a donation inter vivos shall be
irreocable by the donor'
Again# the law says 0minor child15 hence the adoption of a person of
majority age although it is allowed in certain cases is not a ground under
=o' -'
)ase doctrine
$eocation upon birth of a child and return of property to donor are not
self7operatie or self7executory' /here is a need for judicial action'
!?racion Auanillo"
Art& 201& In the cases re"erre$ to in the #rece$ing article+ the $onation
shall e re'o-e$ or re$,ce$ inso"ar as it e/cee$s the #ortion that may
e "reely $is#ose$ o" y will+ ta-ing into acco,nt the whole estate o"
the $onor at the time o" the irth+ a##earance or a$o#tion o" a chil$& HnI
.xtent and basis of reocation or reduction
#irth, appearance, or adoption o% a child/
A person may not gie by way of donation more than he may gie by
will'
/he amount subject to reocation or reduction is# therefore# the excess
oer the portion that may be freely disposed of by will'
/he basis of reocation or reduction is the alue of the whole estate of
the donor at the time of the birth# appearance# or adoption of a child#
and not at the time of the death of the donor as in the case of inofficious
donations under Article II&'
o /o the alue of the estate shall be added the alue of the
donation at the time it was made because it would hae been
still part of the estate had not the donation been made'
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/he burden of proof is on the plaintiff7donor who must allege and
establish the re%uirements prescribed by law'
)n the case o% ino%%icious donations/
What is sought to be protected by Article IH; is only the prospectie or
presumptie legitime of the child because that is the only portion which
cannot be disposed of'
4f the donation does not exceed the free portion at the time of the birth#
appearance# or adoption# there will be no reocation or reduction but it
may still be reduced under Article II& if it cannot be coered by the free
portion computed as of the time of the donors death'
:et us suppose $on who was then childless# donated a property worth 3<;
to .rin# a close 0friend'1 +ubse%uently# a child was born to $on whose estate
at the time was 3-;' Eis total estate then including the alue of the property
donated was 3D;'
+ince the legitime of a legitimate child is P of the estate or 3@;# and
therefore# the free portion is also 3@;# the donation must be reduced by 3&;'
6ut if the alue of the estate was 3I;# the donation is not reo9ed or
reduced because it does not exceed the free portion of 3H; T!3I; + <;"L*U'
Eoweer# should the estate of $on be less than 3<;# excluding the 3<;
donation# at the time of his death !for example# 3@;"# it shall be subject to
reduction to the extent that it is inofficious !i'e' 3<; 2 3@< T!3<;+3@;L*" V
3<;" under article II&'
)ase doctrines
Donor has the burden to allege and establish the re%uirements
prescribed by law for which the annulment or reduction of the donation
can be based' !)ruG )A"
Art& 20)& C#on the re'ocation or re$,ction o" the $onation y the irth+
a##earance or a$o#tion o" a chil$+ the #ro#erty a""ecte$ shall e
ret,rne$ or its 'al,e i" the $onee has sol$ the same&
I" the #ro#erty is mortgage$+ the $onor may re$eem the
mortgage+ y #aying the amo,nt g,arantee$+ with a right to reco'er the
same "rom the $onee&
<hen the #ro#erty cannot e ret,rne$+ it shall e estimate$ at
what it was worth at the time o" the $onation& H04*aI
?bligation of donee upon reocation or reduction
4n case of reocation or reduction under Article IH;# the obligation of the
donee depends upon the situation of the property donated'
o 4f the property affected is still in his possession# he must return
the same'
o 4f he has sold the property# he must gie its alue'
o 4f the property has been mortgaged by him# and the donor
redeemed the mortgage# he must reimburse the donor'
o 4f the property cannot be returned# as when it ahs been lost or
destroyed# he must return its alue at the time of the perfection
of the donation'
4t is presumed that the price at which the property is sold is its alue'
o 4f the price is less than its actual alue# the donee is not liable
for the difference absent proof of bad faith'
o When the property cannot be returned# its alue shall be
determined not as of the time of the loss but as of the time of
the donation'
Art& 20.& The action "or re'ocation or re$,ction on the gro,n$s set
"orth in article 209 shall #rescrie a"ter "o,r years "rom the irth o" the
"irst chil$+ or "rom his legitimation+ recognition or a$o#tion+ or "rom the
!,$icial $eclaration o" "iliation+ or "rom the time in"ormation was
recei'e$ regar$ing the e/istence o" the chil$ elie'e$ $ea$&
This action cannot e reno,nce$+ an$ is transmitte$+ ,#on the
$eath o" the $onor+ to his legitimate an$ illegitimate chil$ren an$
$escen$ants& H040aI
3rescription of action for reocation or reduction
/he donation is reo9ed ipso jure by operation of law# by the happening
of any of the eents mentioned in Article IH;'
o Eence# it is not really essential that an action be brought to
reo9e the donation'
o 6(/# the reocation is not self7operatie or self7executory'
4f the donee should refuse to comply with his obligation under Article
IH*# resort to judicial action is necessary under Article IH-' 6ut since it
is the law itself that declares the reocation# the action is strictly not an
action to reo9e but one to hae the court expressly declare the
reocation which has already ta9en place by operation of law'
/he period within which to bring the action is @ years' /he time to start
counting depends upon the cause8
o 6irth of the first child5
o Crom time of legitimation# recognition or adoption5 or
o Crom judicial declaration of filiation
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o Crom the time information was receied regarding the
existence of the child belieed dead'
=ot from the actual appearance of the absent child'
4f the donor dies within the period# the action is transmitted to his
legitimate and illegitimate children and descendants !not the spouse or
ascendants of the donor"'
4n case more than one cause or ground for reocation or reduction
concur# the period of prescription must run from the earliest cause'
$eduction of a donation upon the allegation of impairment of legitime is
not controlled by a particular prescriptie period for which reason the
period shall be goerned under the ordinary rules of prescription' (nder
Article &&@@# the action must be brought within &; years from the time
the right of action accrues# which is the death of the donor'
/he action cannot be waied' !)ompare to the next article>"
Art& 204& The $onation shall e re'o-e$ at the instance o" the $onor+
when the $onee "ails to com#ly with any o" the con$itions which the
"ormer im#ose$ ,#on the latter&
In this case+ the #ro#erty $onate$ shall e ret,rne$ to the
$onor+ the alienations ma$e y the $onee an$ the mortgages im#ose$
thereon y him eing 'oi$+ with the limitations estalishe$+ with regar$
to thir$ #ersons+ y the Mortgage Law an$ the Lan$ Registration Laws&
This action shall #rescrie a"ter "o,r years "rom the
noncom#liance with the con$ition+ may e transmitte$ to the heirs o"
the $onor+ an$ may e e/ercise$ against the $oneeJs heirs& H042aI
Cailure to comply with conditions
A donation may be reo9ed in case of failure of the donee to comply
with 0any of the conditions1 imposed by the donor upon him'
/he word 0conditions1 actually refers to obligations# charges# or burdens
imposed by the donor5 it may also refer to a resolutory condition' Eence#
what is contemplated are onerous or modal donations'
?f course# it implies that there is an existing donation'
/he condition must be fulfilled within the period fixed by the donor'
o =o period? /he court shall determine such period as may hae
been contemplated by the donor'
4n case the donee fails to comply# the property donated reerts to the
donor# along with the fruits of the property which the donee may hae
receied after haing failed to fulfill the condition'
4f the property has been alienated or mortgaged# the alienation or
mortgage shall be oid +(6A.)/ to the rights of innocent third persons
under registration laws who may hae ta9en the property donated
without notice of the condition imposed' !3ublic policy baby>"
4n case of non7fulfillment by the donee of any of the conditions imposed
by the donor# the donation shall be reo9ed at the instance of the donor'
o 6ut# the donor may instead file for an action of specific
performance to compel the donee to comply with the
conditions'
/he action must be brought within @ years from the non7compliance with
the condition 2 it can only be brought by the donor or his heirs against
the donees heirs !compare to Articles IHK and II;"'
/he death of the donor or the donee does not bar the action to reo9e
for failure of the donee to comply with the conditions# proided the
prescriptie period has not yet expired'
(nli9e the action for reocation or reduction under Article IH-# the action
may be waied because the condition is purely contractual in nature'
4s court action necessary?
4n any case# a court action is necessary if the donee refuses to return
the property or to comply with the conditions'
/he deed of donation# howeer# may proide that iolation of any of its
conditions shall cause the automatic rescission of the contract' 4n such
case# upon the iolation# the donation is automatically reo9ed# without
need of a judicial declaration'
o .xcept where the donee denies the donors right to rescind# in
which case# judicial interention is necessary to determine
whether or not the rescission is proper'
4n the absence of an agreement in the donation proiding of an
automatic rescission# a judicial declaration reo9ing said donation will
be necessary'
)ase doctrines
When land is donated on seeral express conditions# acceptance by the
donee will be understood to include all of the conditions not umista9ably
rejected' !6arreto Manila"
When the donee has entered into possession of the property# effect will
be gien to the donation according to the terms of the offer and
acceptance# although the formal deed has not been executed' !6arreto"
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4f there is no fulfillment with the resolutory condition# the donation may
now be reo9ed and all rights which the donee may hae ac%uired
under it shall be deemed lost and extinguished' !)entral 3hil (niersity
)A"
Article IH@ does not apply to onerous donations because onerous
donations are goerned by the rules of )ontracts' Eence# the
prescription period is &; years# not @ years' !De :una Abrigo"
o While courts are gien the power to fix the duration when the
condition is to be fulfilled when none is gien# if the facts show
that a reasonable period has already been allowed the donee
to aail of the opportunity to comply with the condition# then the
courts will no longer gie the donee a period' !)entral 3hil (ni"
o /he legal possibility of bringing the action begins with the
expiration of a reasonable opportunity of the donee to fulfill
what has been charged upon it by the donor' !+ec of .ducation
Eeirs of Dulay"
=othing in law prohibits parties from entering into an agreement that
iolation of the terms of the contract would cause cancellation thereof
een without court interention'
o 4n cases li9e these# judicial interention is necessary not for
purposes of obtaining a judicial declaration rescinding a
contract already deemed rescinded but in order to determine
whether or not the rescission was proper' !De :una"
When the deed of donation expressly proides for automatic rescission
and reersion of the property donated# the rules on contract and the
general rules on prescription should apply# not IH@' !$oman )atholic
Archbishop of Manila )A"
o A donor cannot reo9e the donation on the grounds for non7
compliance of an impossible condition' !Archbishop of Manila
)A"
A declaration of petitoners absolute ownership appears legally possible
only when the deed of donation is contextually declared peremptorily
reo9ed' !Dolar 6arangay :ublub"
/he act of selling property to a -
rd
party cannot be considered as a alid
act of reocation of the deed of donation for the reason that a formal
case to reo9e the donation must be filed which spea9s of an action that
has a prescriptie period of @ years from non7compliance with the
condition' 4n this case# there was no proision of automatic rescission#
thus placing the case within the ambit of Article IH@' !Austria7Magat
)A"
When the donation is onerous and does not fix a period to comply with
the condition# the courts should fix a period to uphold the greatest
reciprocity of rights' 4f it is gratuitous# then they should not# to uphold the
least reciprocity of rights and interests'
4ts important to determine whether or not the donation is onerous or not
so that we 9now what law to apply'
Art& 20*& The $onation may also e re'o-e$ at the instance o" the
$onor+ y reason o" ingratit,$e in the "ollowing cases%
H1I I" the $onee sho,l$ commit some o""ense against the
#erson+ the honor or the #ro#erty o" the $onor+ or o" his wi"e or
chil$ren ,n$er his #arental a,thority(
H)I I" the $onee im#,tes to the $onor any criminal o""ense+ or
any act in'ol'ing moral t,r#it,$e+ e'en tho,gh he sho,l$ #ro'e it+
,nless the crime or the act has een committe$ against the $onee
himsel"+ his wi"e or chil$ren ,n$er his a,thority(
H.I I" he ,n$,ly re",ses him s,##ort when the $onee is legally
or morally o,n$ to gi'e s,##ort to the $onor& H045aI
$eocation by reason of ingratitude of the donee
Article IH< does not apply to donations mortis causa and onerous
donations'
A donation propter nuptias may be reo9ed by the donor when the
donee has committed an act of ingratitude as specified in Article IH<'
/he enumeration is exclusie and cannot be enlarged'
/he act of ingratitude must hae been committed by the donee himself
because the duty of gratitude is personal' An act imputable to the
husband or wife or the hot mistress of the donee is not a ground for
reocation'
?ffense against the donor# etc
)riminal coniction is not needed' 4t is sufficient that the offense be
proed by mere preponderance of eidence in the action for reocation'
4f the offense is committed against a child who is no longer under
parental authority# the donation cannot be reo9ed'
4mputation to donor of any criminal offense# etc
4t is immaterial that the donee can proe his accusation or substantiate
his testimony against the donor'
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o /he exception is when the crime has been committed against
the donee himself# his wife or children under his parental
authority'
o /he act inoling moral turpitude may not amount to a crime'
$efusal to support the donor
/here are two re%uisites8
&' /he refusal to support the donor must be undue# that is#
without just reason5 and
*' /he donee must be legally or morally bound to support the
donor'
=ote 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
and as9s for help# and the donor shuns her away li9e a scorned loer'"
)ase doctrine
All crimes which offend the donor show ingratitude and are causes for
reocation' Any crime under the $eised 3enal )ode is one inoling
moral turpitude' !+pouses $omulo )A"
Art& 200& Altho,gh the $onation is re'o-e$ on acco,nt o" ingratit,$e+
ne'ertheless+ the alienations an$ mortgages e""ecte$ e"ore the
notation o" the com#laint "or re'ocation in the Registry o" Pro#erty
shall s,sist&
Later ones shall e 'oi$& H047I
Art& 202& In the case re"erre$ to in the "irst #aragra#h o" the #rece$ing
article+ the $onor shall ha'e a right to $eman$ "rom the $onee the
'al,e o" #ro#erty alienate$ which he cannot reco'er "rom thir$
#ersons+ or the s,m "or which the same has een mortgage$&
The 'al,e o" sai$ #ro#erty shall e "i/e$ as o" the time o" the
$onation& H0*9I
.ffect of reocation on prior alienations and mortgages
)% by non8compliance
4n case of reocation of a donation by non7compliance by the donee
with any of the conditions imposed# alienations and mortgages made by
the donee are oid# subject only to the rights of innocent third persons'
/he donor can recoer from the donee8
o ?nly the alue of the property donated at the time of the perfection
of the donation# ?$
o /he sum for which it was mortgaged'
$ecoery cannot be had against the third person unless he acted in bad
faith as when had actual 9nowledge of the cause for reocation or the filing
of the action'
)% by reason o% ingratitude
4f the reocation is by reason of ingratitude# the alienations and
mortgages made by the donee before the complaint for reocation is
annotated in the $egistry of 3roperty shall subsist or are alid' :ater
alienations and mortgages shall be oid'
/he donor can recoer the property from the transferee or
mortgagee'
/he donation of land by $on to .rin was made on Auly &;' .rin sold the land
to /ara on Auly *;' /he act of ingratitude was done on Auly -;' /he
complaint for reocation was annotated on August &;' /hus# the sale to /ara
is alid# and the remedy of $on is to recoer from .ric the alue of the land
at the time of the donation'
4f the sale was made after August &;# the sale is oid and $on can recoer
the land from /ara'
4f the act of ingratitude was committed on Auly *;# the sale on Auly -; and
the complaint which was filed on Auly *< and was annotated on Auly -&# but
at the time of the sale /ara was aware of the act of ingratitude committed by
.rin# or the pending action by $on# the sale should not be considered alid
because /ara acted in bad faith# and so $on can recoer the land from her'
Art& 205& <hen the $onation is re'o-e$ "or any o" the ca,ses state$ in
Article 209+ or y reason o" ingratit,$e+ or when it is re$,ce$ eca,se
it is ino""icio,s+ the $onee shall not ret,rn the "r,its e/ce#t "rom the
"iling o" the com#laint&
I" the re'ocation is ase$ ,#on noncom#liance with any o" the
con$itions im#ose$ in the $onation+ the $onee shall ret,rn not only the
#ro#erty ,t also the "r,its thereo" which he may ha'e recei'e$ a"ter
ha'ing "aile$ to ",l"ill the con$ition& H0*1I
$eturn by donee of the fruits of property donated
/he rules depend upon the cause of reocation or reduction
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o 4f the cause is8
the birth# appearance or adoption of a child# or
ingratitude# or
inofficiousness of the donation !because the donor did not
resere sufficient means for support"# or
he donated more than he could gie by will# then
only the fruits accruing from the filing of the
complaint need be returned'
4t can be implied that the donation remains alid
up to the time of the filing of the complaint'
4f the cause is the non7fulfillment of any of the conditions imposed in the
donation# the fruits must be returned from the time of the breach of the
condition' /he donation shall also return the property donated'
4n case of inofficious donation which exceeds the free disposal by will#
the donation ta9es effect during the lifetime of the donor# the donee
appropriates the fruits# and the reduction may be as9ed only after the
donors death'
Art& 207& The action grante$ to the $onor y reason o" ingratit,$e
cannot e reno,nce$ in a$'ance& This action #rescries within one
year+ to e co,nte$ "rom the time the $onor ha$ -nowle$ge o" the "act
an$ it was #ossile "or him to ring the action& H0*)I
$enunciation and prescriptie period of action by reason of ingratitude
/he action granted to the donor for reocation by reason of ingratitude#
li9e the action based on the birth# appearance# or adoption of a child
cannot be renounced in adance'
What the law prohibits is waier# prior to the commission of the act of
ingratitude'
A past ingratitude can be the subject of a alid renunciation because the
renunciation can be considered as an act of magnanimity on the part of
the donor'
/he action prescribesJ
&' Within one year from the time the donor had 9nowledge of the
act of ingratitude A=D
*' 4t was possible for him to bring the action'
/o bar the action# the donee must show proof that the one7year period
has expired and it was possible for the donor to institute the said action
within the same period'
Art& 229& This action shall not e transmitte$ to the heirs o" the $onor+ i"
the latter $i$ not instit,te the same+ altho,gh he co,l$ ha'e $one so+
an$ e'en i" he sho,l$ $ie e"ore the e/#iration o" one year&
Neither can this action e ro,ght against the heir o" the
$onee+ ,nless ,#on the latterJs $eath the com#laint has een "ile$&
H0*.I
/ransmission of action for reocation
General rule8 /he action to reo9e a donation by reason of ingratitude is
purely personal to the donor and cannot# as a rule# be transmitted to the
heirs'
/his is unli9e the action for reocation based on the birth# appearance
or adoption of a child and the action based on non7compliance with the
condition of a donation'
Eoweer# the particular circumstances of the case should be ta9en into
account to determine whether it was possible to bring the action' Eence#
the following exceptions wherein the heirs of the donors can as9 for the
reocation8
&' 4f the donee 9illed the donor# or
*' 4f the donor dies without haing 9nown of the act of ingratitude#
or
-' 4f a criminal case against the donee was instituted by the
donor# but the donor dies before he could bring the ciil action
for reocation5 or
@' 4f the action for reocation has already been filed by the donor
before his death'
Action against heirs of donee
/he heirs of the donee are not held responsible for the acts of their
predecessor7donee' /he act of ingratitude' !>he sins o% the %ather are
not the sins o% the sonB although, there are some instances where we
repeat the mista'es o% our parents/ @eneral rule9 ?earn/)
6ut if the donor has already filed the complaint before the donees
death# the suit may be continued against his heirs'
Art& 221& 8onations which in accor$ance with the #ro'isions o" Article
2*)+ are ino""icio,s+ earing in min$ the estimate$ net 'al,e o" the
$onorJs #ro#erty at the time o" his $eath+ shall e re$,ce$ with regar$
to the e/cess( ,t this re$,ction shall not #re'ent the $onations "rom
ta-ing e""ect $,ring the li"e o" the $onor+ nor shall it ar the $onee "rom
a##ro#riating the "r,its&
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3or the re$,ction o" $onations the #ro'isions o" this :ha#ter
an$ o" Articles 711 an$ 71) o" this :o$e shall go'ern& H0*4I
$eduction of inofficious donations
Donations which are inofficious because they are more than what the
donor can gie by will shall be reduced with regard to the excess upon
the death of the donor# after determining the net alue of the estate'
/hus# it follows that the donation is effectie during the lifetime of the
donor and so# the donee# as owner of the property donated also
becomes owner of the fruits# although the donation should appear
inofficious'
Cor donations propter nuptias# they may be reduced for being
inofficious' 6eing liberalities# they remain subject to reduction for
inofficiousness upon the donors death# if they should infringe the
legitime of a forced heir'
/he action to reduce the inofficious donation must be brought within <
years from the time of the donors death'
Cor reduction of donations# the following articles# %uoted below shall
goern8
Art' K&&' After the legitime has been determined in accordance with the three
preceding articles# the reduction shall be made as follows8
!&" Donations shall be respected as long as the legitime can be coered#
reducing or annulling# if necessary# the deises or legacies made in the will5
!*" /he reduction of the deises or legacies shall be pro rata# without any
distinction whateer' 4f the testator has directed that a certain deise or
legacy be paid in preference to others# it shall not suffer any reduction until
the latter hae been applied in full to the payment of the legitime'
!-" 4f the deise or legacy consists of a usufruct or life annuity# whose alue
may be considered greater than that of the disposable portion# the
compulsory heirs may choose between complying with the testamentary
proision and deliering to the deisee or legatee the part of the inheritance
of which the testator could freely dispose' !D*;a"
Art' K&*' 4f the deise subject to reduction should consist of real property#
which cannot be coneniently diided# it shall go to the deisee if the
reduction does not absorb one7half of its alue5 and in a contrary case# to the
compulsory heirs5 but the former and the latter shall reimburse each other in
cash for what respectiely belongs to them'
/he deisee who is entitled to a legitime may retain the entire property#
proided its alue does not exceed that of the disposable portion and of the
share pertaining to him as legitime' !D*&"
Art& 22)& Only those who at the time o" the $onorJs $eath ha'e a right to
the legitime an$ their heirs an$ s,ccessors in interest may as- "or the
re$,ction or ino""icio,s $onations&
Those re"erre$ to in the #rece$ing #aragra#h cannot reno,nce
their right $,ring the li"etime o" the $onor+ either y e/#ress
$eclaration+ or y consenting to the $onation&
The $onees+ $e'isees an$ legatees+ who are not entitle$ to the
legitime an$ the cre$itors o" the $ecease$ can neither as- "or the
re$,ction nor a'ail themsel'es thereo"& H0**aI
3ersons entitled to as9 for reductionJ who are they?
Cor the reduction of inofficious donations#
&' those who at the time of the donors death hae a right to the
legitime# and
*' their heirs# and
-' succesors in interest'
/he donor is not included# patay na siya eh/ /he inofficiousness can
only be determined after his death'
Who may not as9 for reduction?
&' /he donees# or
*' /he deisees# or
-' /he legatees# who are not entitled to the legitime'
@' )reditors of the deceased' !/he remedy of creditors is to file a claim
against the estate of the deceased# but not against the owners of the
donated property'"
$enunciation of right to as9 for reductionJ can it be done?
/he right to as9 for the renunciation of inofficious donations cannot be
renounced during the lifetime of the donor# ether by express declaration
or by consenting to the donation'
22.& I"+ there eing two or more $onations+ the $is#osale #ortion is
not s,""icient to co'er all o" them+ those o" the more recent $ate shall
e s,##resse$ or re$,ce$ with regar$ to the e/cess& H0*0I
Mic9ey 4ngles
Ateneo :aw *;&*# updated8 May &<# *;&*
:ibrat8 =o stamping please>
128
+
Ad Majorem Dei Gloriam
PROPERTY NOTES
$eduction where there are two or more donations
/he subse%uent donations shall first be reduced and only if they are not
sufficient to coer the disposable portion should the earlier ones be
reduced also with regard to the excess'
4f the two donations were perfected at the same time# the reduction
should be proportionate unless otherwise proided by the donor'
$ules on reocationJ )EA$/.D>
REVO:ATION+
ase$ onK
6irth#
appearance# or
adoption of a
child
=on7compliance
with condition or
conditions
4ngratitude
/ime of action Within @ years
from birth of first
child# or
Crom his
legitimation# or
Adoption# or
Crom the judicial
declaration of
filiation# or
Crom receipt or
info regarding
the existence of
the child
belieed dead
Within @ years
from non7
compliance with
the condition
6ut if its an
onerous
donation# within
&; years from
non7compliance
with the
condition
Within & year
from the time
the donor had
9nowledge of
the fact of the
ingratitude
/ransmissibility of
action
/ransmitted to
children and
descendants of
the donor upon
his death
May be
transmitted to
the donors heirs
and may be
exercised
against the
donees heirs
Generally# the
action is not
transmitted to
the heirs of the
donor nor can
the action be
filed against the
heirs of the
donee
.ffect of
reocation
3roperty affected
shall be
returned# or its
alue if the
donee has sold
3roperty
donated shall be
returned to the
donor and the
alienations and
3roperty
donated shall be
returned but
alienations and
mortgage
the same# or
/he donor may
redeem the
mortgage on the
property# with a
right to recoer
the property
mortgages are
oid subject to
the rights of
innocent -
rd

persons
effected before
the notation of
the complaint for
reocation in the
$egistry of
3roperty shall
subsist
:iability for fruits Donee shall
return the fruits
accruing from
the filing of the
complaint
Donee shall
return the fruits
which he may
hae receied
a%ter haing
failed to fulfill
the condition
+ame as in first
column
$ules on reductionJ )EA$/.D>
RE8C:TION+
ase$ onK
Cailure of
the donor to
resere
sufficient
means for
support
4nofficiousnes
s for being in
excess of
what the
donor can
gie by will
6irth#
appearance
# or
adoption of
a child
Craud
against
creditors
/ime of action Any time by
the donor or
by the
relaties
entitled to
support
during the
lifetime of
the donor
Within &;
years !+antos
Alana case#
based on
&&@@"
Within < years
after the
death of the
donor !if
propter
nuptias#
according to
boo9"
+ame as in
first column
/he action
for
rescission
must be
brought
within @
years from
the
perfection
of the
donation#
or at the
latest# from
the time
the creditor
had
9nowledge
of the
Mic9ey 4ngles
Ateneo :aw *;&*# updated8 May &<# *;&*
:ibrat8 =o stamping please>
129
+
Ad Majorem Dei Gloriam
PROPERTY NOTES
donation
/ransmissibilit
y of action
=ot
transmissibl
e as the
duty to gie
support and
the right to
receie are
personal in
nature
/ransmitted to
the donors
heirs as the
donation shall
be reduced as
regards the
excess at time
of the donors
death
+ame as in
first column
/ransmitte
d to the
creditors
heirs or
successors
7in7interest
.ffect of
reocation
$educed to
the extent
necessary
to proide
support
/a9es effect
during the
lifetime of the
donor subject
to reduction
only upon his
death with
regard to the
excess
+ame as in
first column
3roperty
affected
shall be
returned by
the donee
for the
benefit of
the creditor
subject to
the rights
of innocent
third
persons
:iability for
fruits
Donee is
entitled to
the fruits as
owner of the
property
donated
Donee
appropriates
the fruits as
owner of the
property
Donee# as
owner#
appropriate
s the fruits
of the
property not
affected by
the
reduction#
but with
regard to
the excess#
he shall be
liable only
for the fruits
from the
filing of the
complaint
Cruits of
the
property
affected
shall also
be
returned' 4n
case the
donee
acted in
bad faith
and it
should be
impossible
for him to
return# then
indemnify
the donors
creditor for
damages'
:appy the man who %inds wisdom, the man who gains understanding;88
(roverbs 4C.4
>hus you may wal' in the way o% good men, and 'eep to the paths o% the
just/ *or the upright will dwell in the land, the honest will remain in itD #ut the
wic'ed will be cut o%% %rom the land, the %aithless will be rooted out o% it/88
(roverbs 0C0E800
Mic9ey 4ngles
Ateneo :aw *;&*# updated8 May &<# *;&*
:ibrat8 =o stamping please>
130