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Syllabus Property Discussion Guide PDF
Syllabus Property Discussion Guide PDF
atty.erwin.tiamson
I. INTRODUCTION
A. What is Property?
1. In General Term
2. Property is a system of managing resources
a) Capitalism
b) Socialism
c) Tragedy of the Commons
3. Property is an entitlement to resources protected by legal institutions.
4. Purpose of Properties
a) Management of Resources
b) Set of Incentives to People
c) Facilitates Contracts
d) Individual Autonomy
e) Preserves liberty
5. Issues and Concerns
a) Divides the world into parcels
b) Monopoly
c) Commodification of values
d) Promotes inequality
B. Theories on Property
1. Protect First Possession
2. Promote Labor
3. Utilitarian / Economic Theory
4. Promote Democracy
5. Personhood
C. Legal Theories
1. Natural Law
2. Property as Law of Things
3. Legal Positivism
4. Right to Exclude
5. Bundle of Rights
D. Property under the Civil Code
1. Rights Over Things
a) Things and Property Distinguish
b) Rights as Property
2. Kinds of Property
a) As to Ownership
(1) Common/Res Nullious
(2) Public Dominion
(3)Private Property
b) As to Physical Characteristics
(1)Immovable Property (Real Property)
(a)Enumeration of Immovable Property (Art. 415, NCC)
(b) Classes of Immovable Property
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d) Copyright Infringement
3. Patent
a) Objective
b) Utilitarian Mandate
c) What can be patented
d) Elements
e) Patents Infringement
4. Trademarks
a) Objective
b) Trademark Infringement
V. DERIVATIVE MODES OF ACQUIRING OWNERSHIP
A. Right to Transfer
B. Kinds of Transfers
1. Transfer of Ownership
a) Sale/Barter/Exchange
b) Donation
c) Succession
2. Constitution of Rights
a) Lease
b) Usufruct
C. Donation
1. Concept
2. Kinds
a) Simple
b) Remuneratory
c) Conditional
d) Onerous
e) Intervivos and Mortis Causa
3. Essential Elements of Donation
4. Capacity
5. Void Donations
6. Formalities
7. Effects of Donations and Limitations
8. Revocation and Reduction of Donations
D. Lease
1. Concept
2. Distinguished from Sale and Usufruct
3. Obligation of Lessor
4. Obligation of Lessee
5. Assignment of Lease
6. Sale of Lease property
7. Termination
8. RA No. 7652
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9. Rent Control Acts (Batas Pambansa Blg. 877 and Republic Act Nos. 6643,
6828, 7644, 8437, 9161, 9341 and 9653)
E. Usufruct
1. Concept
2. Rights and Obligation of the Owner
3. Rights of the Usufructuary
4. Obligation of the Usufructuary
5. Extinguishment of Usufruct
VI.INTERFERENCE TO PROPERTY (Trespass and Nuisance)
A. Distinguish Trespass from Nuisance
B. Trespass
C. Concept:
1. Causes of Action
2. Remedies in Trespass in Real Properties
a) Self Help (Art. 429, NCC)
b) Criminal Prosecution
c) Civil Action for recovery of Possession
(1)Forceable Entry and Unlawful Detainer
(2)Accin Publiciana
(3)Civil Action Recovery of Ownership and Possession
(4)Writ of Possession
3. In Personal Property
a) Self Help (Art. 429, NCC)
b) Criminal Prosecution
c) Replevin
D. Nuisance
1. Concept
2. Nuisance according to the object or objects that it affects (Art. 695, NCC)
a) Public Nuisance
b) Private Nuisance
3. Nature
a) Nuisance per se
b) Nuisance per incidens
4. Easement against nuisance
5. Remedies
a) Prosecution under the Penal Code
b) Civil Action
c) Abatement of Public Nuisance without judicial proceeding
(1)District Health Office determines whether or not abatement without
judicial proceedings is the best remedy against a public nuisance
(Art. 702, NCC).
(2)By Private Persons (Art. 704, NCC)
(3)Private Nuisance by Private Persons (Art. 706)
d) Torts
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(1)Concept of Tort
(2)Private Nuisance as Tort
VII. LIMITATIONS OF OWNERSHIP
A. Injurious Use
B. Easements and Servitudes
1. In General
a) Definitions:
(1)Dominant Estate
(2)Servient Estate
b) Kinds of Easements
(1)Continuous or Discontinuous
(2)Apparent or Non-apparent
(3)Positive or Negative
(4)Legal and Voluntary
(5)Legal and Private Easements
c) Modes of Acquiring Easements
(1)By Prescription
(2)By Title
d) Rights and Obligations (Article 627-630, NCC)
(1)Dominant Estate
(2)Servient Estate
e) Extinguishment of Easements
f) Special Law: Presidential Decree No. 1096 (National Building Code of
the Philippines)
2. Easement of Right of Way
a) Articles 649 to 657 of the Civil Code
b) Definition - The right to pass through property owned by another. ROW
can be established by contract, by longstanding use or by law.
c) Compulsory Right of Way
d) Executive Order No. 621, s. 1980 (Amended EO 113, s. 1955)
3. Easement of Party Wall (Art. 658-666, NCC)
a) The easement of party wall shall be governed by the provisions of this
Title, by the local ordinances and customs insofar as they do not
conflict with the same, and by the rules of co- ownership (Art. 658,
NCC).
b) Presumption
c) Renunciation
d) Repairs
e) Use
4. Easement of Light and View
a) Right to Light:
b) Covered by Articles 667-673 of the NCC
(1)General Rule (Art. 667, NCC)
(2)Two Meter Rule
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I. INTRODUCTION
A. What is Property?
1. In General - Property is a general term for the rules that govern people's access
to and control of things like land, natural resources, the means of production,
manufactured goods, including texts, ideas, inventions, and other intellectual
products.
2. Property is also a system of managing resources:
a) Capitalism
(1) Pre-eminence of private ownership;
(2) Citizens have private property;
(3) Market forces decides what is best to do with resources;
(4) Market economy.
b) Communism/Socialism -
(1) Preeminence of state ownership;
(2) Citizens have limited property, the state owned most of the resources
(Super Regalian Doctrine)
(3) The state decides what is best to do with resources;
(4) Planned economy
c) Tragedy of the Commons1 - a situation where there is no property rights;
what there is there is a shared resource system (common ownership) where
individual users acting independently according to their own self-interest
behave contrary to the common good of all users by depleting that resource
through their collective action.
3. Property is an entitlement to resources protected by legal institutions.
a) Property delineates the rights that people have to control and derive value
from resources in the world.
b) Any society with an interest in avoiding conflict between its member
regarding access and control to resources needs a system of rules.
c) Without rules, cooperation, production, and exchange are virtually
impossible, or possible only in the fearful and truncated forms we see in
black markets.
d) It includes legally enforceable claims to non-tangible or non-object
resources.
4. Purpose of Properties
a) Institution of property provides for an effective way of managing societys
resources. - Decentralisation in the management of resources and permits
owners-managers to specialise in developing the knowledge and skill
pertinent to their particular resources.
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2 Howard Gensler, Property Law as an Optimal Economic Foundation, 35 Washburn L.J. 50, 51-52
(1995)
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54 Henry E. Smith, The Language of Property: Form, Context, and Audience, 55 STAN. L. REV.
1105, 114857 (2003).
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the court, which will, after providing to all interested claimants the
required notice and opportunity to be heard, make a definitive
adjudication of who owns the thing.
(4) Property as Notice - Property law comes in a standard set of forms and
serves as notice to everyone, depending on the physical nature and
character, and location of the property on how to behave. The in rem
aspect of property gives information to large and indefinite audience on
how to interact with each other with regard to the thing.
c) Legal Positivism
(1) Property laws delineate the rights people have to control and derive value
from resources in the world. For legal scholars, we use property to refer
to entitlements to resources protected by formal legal institutions. The
theory that legal rules are valid only because they are enacted by existing
political authority or accepted as binding in a given society not because
they are grounded in morality or in natural law.
(a) Property laws tell us what is mine and what is not mine. It is reserved
for a legally protected entitlement.
(b) A thing is not property in the legal sense unless its holder could
vindicate his/her rights in the court of laws.
(c) Property rights are defined by the State
(2) Property rights are not absolute - Much of property law is devoted to
reconciling disputes between different owners or between an owner and
the community.
(3) Property rights evolve as law changes - A core value of our property
system is stability of title - the concept that property rights should be
certain and predictable. But the nature and scope of property do evolve
slowly over time, as chasing economic, technological and social
conditions gradually reshape the law. i.e. traditional notion that a land
owner held title to all the airspace above her land - the invention of
airplane ended the traditional notion.
(4) Property is closely related to rule of law. 6
d) Right to Exclude
(1) William Blackstone7 - the sole and despotic dominion which one man
claims and exercises over the external things of the world, in total
exclusion of the right of any other individual in the universe.
(2) Arguably one of the most significant and essential elements in defining
our understanding of what constitutes property. Historically, the right to
exclude concerns the relationship between people with respect to things,
such that the so-called owner can exclude others from certain activities
or permit others to engage in those activities and in either case secure
6Henry E. Smith, Property, Equity, and the Rule of Law, June 14, 2013; accessed: http://
www.law.harvard.edu/programs/about/privatelaw/related-content/2013-working-paper-series/
smith_property-equity-and-the-rule-of-law_6-14-13.pdf
7 William Blackstone, Commentary on the Laws of England,
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assistance of the law in carrying out this decision. But, from a present-
day perspective, the right has evolved beyond the legal constructs of
traditional property law to also encompass legal entitlements and benefits
possessed by one person over another irrespective of the legal
relationship between such person and the thing in which the right is
claimed.
(3) Primacy of the Right to Exclude 8 -
(a) Give someone the right to exclude others from a valued resource and
you give them property. Deny someone the exclusion right and they
do not have property.
(b) If one starts with the right to exclude, it is possible to derive most of
the other attributes commonly associated with property through the
addition of relatively minor clarifications about the domain of the
exclusion right. On the other hand, if one starts with any other
attribute of property, one cannot derive the right to exclude by
extending the domain of that other attribute; rather, one must add the
right to exclude as an additional premise.
(c) The right to use is an important attribute of property closely
associated with the right to exclude. At its core, the gatekeeper right is
the right to determine the use of resources, by exercising the power of
exclusion and inclusion. But the right to exclude cannot be derived
from the right to use.
(d) To determine whether or not someone who has the right to transfer
resources also has a general right to exclude others from the
resources, we need to know additional information about the scope of
their powers, specifically, whether they are owners. The right to
transfer, by itself, cannot lead us to this further information about
which incidents of property the transferor enjoys.
(4) Exception to the Right to Exclude
(a) Necessity
(b) Custom
(c) Public Accommodation Laws
(d) Anti-discriminatory Laws
e) Bundle of Rights
(1) Property as Bundle of Rights
(a) This school of thought denies the existence of any essential core tot
he concept of property. Rather, property is jest a word denoting a
bundle of rights or more metaphorically, a bundle of stick - in which
each individual stick (whether it be a right or privilege) can be added
or removed without necessarily changing the characterization of the
bundle as property.
8 Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. (1998)
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(b) The Legal Realist movement that started in the 1920 advance this
alternative view in order to debunk the notion of property as a natural
high protected by the Constitution against fundamental reform.
(c) Trinity of Rights - to exclude, to use and to transfer defines the core
property.
(d) The law shifted from giving the owner dictatorial control over who and
what to exclude or include, and instead seeks to prescribe rules about
permissible and impermissible uses that constrain all relevantly
situated owners. Exclusion shoes off into governance.
(2) Perspective and Analysis9 - At least since Blackstone, property rights
discourses has been plagued by absolutism, the notion that the right of
property should be defined as the sole and despotic dominion over the
res, to the total exclusion of the right of any other individual in the
universe. Property professors and courts generally refer to the collection
of rights that private property owners enjoy vis-a-vis other landowners
and the public as a bundle of sticks in an attempt to render rather
abstract concepts more concrete. The prevailing metaphor, however,
lends itself to a formalistic, absolutist conception of these interests,
implying that the stick, such as the right to devise or the right to convey,
are things therefore the composition of the bundle must be an
immutable and essential state of affairs. In contrast, many scholars insist
that property rights are neither static nor absolute. The recognition of
private property interest involves tradeoffs with community values and
egalitarian goals; therefore the exact composition of the bundle of sticks
must be recognized as a mediation between these interests. Moreover,
the palace struck is always tentative, subject to constant re-evaluation in
the light of current needs and norms.
(3) Countryside and Rights of Way Act (England and Wales) - Many
landowners in the United Kingdom have, in the past, strongly defended
their property rights. Even uncultivated and unenclosed land was formerly
heavily protected in some areas, mostly to preserve the land owner's
hunting or fishing rights. This in turn left the general public with little
access to natural areas. The Act implements the so-called "right to
roam" (also known as jus spatiandi) long sought by the Ramblers'
Association and its predecessors, on certain upland and uncultivated
areas of England and Wales. The act refers to areas of mountain, moor,
heath and down in addition to registered common land; not all
uncultivated land is covered. The Ramblers' Association works to
increase the rights of walkers in the United Kingdom and has been a
driving force behind the recent legislation increasing the public's access
to the wilderness.
D. Property under the Civil Code
1. Property as part of Civil Law
a) Family Relations
b) Obligations and Contracts
9 Sparkling and Coletta, Property - A Contemporary Approach, 2nd Edition, West (2012), p. 65-66
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c) Succession
d) Agency
e) Law of Torts
f) Property law
2. Rights Over Things
a) Things and Property Distinguish
b) Rights as Property
(1) Real Rights
(2) Personal Rights
(3) Distinctions
3. Kinds of Property
a) As to Ownership
(1) Common/Res Nullious
(2) Public Dominion
(a) Property intended for public use (Art. 420, par. 1, NCC)
(b) Property for public service (Art. 420, par. 2, NCC)
(c) Property for the development of national wealth (Art. 420, par. 2,
NCC)
(d) Patrimonial property (Art. 421, NCC)
(3) Private Property
(a) All properties belonging to private persons either individually or
collectively (Art. 425, NCC)
i) Sole ownership
ii) Co-ownership (Simple, Partnerships, Corporations, and other
forms of multiple ownership)
b) As to Physical Characteristics
(1) Immovable Property (Real Property)
(a) Enumeration of Immovable Property (Art. 415, NCC)
(b) Classes of Immovable Property
i) Immovable by nature - paragraphs 1 and 8
ii) Immovable by incorporation - paragraphs 2,3,4, and 6
iii) Immovable by destination - paragraphs 4,5,6,7 and 9
iv) Immovable by analogy or by law - paragraph 10
(c) Extent of Ownership (Art. 437, NCC)
i) Includes the surface and everything under it and he can construct
thereon any works or make any plantations and exceptions which
he may deem proper, without detriment to servitudes and subject
to special laws and ordinances. He cannot complain of the
reasonable requirement of aerial navigation.
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II. OWNERSHIP
A. What is Ownership
1. The delineation of ownership is as old as human written records. Ownership is a
Biblical Concept: The Mosaic laws as described in the Ten Commandments or
the laws on takings in Exodus 22:1-15, as well as the host of other Levitical laws
throughout the first five books of the Old Testament, are all attempts to legally
define ownership.
2. In the words of Blackstone (English Jurist): The third absolute right; inherent in
every Englishman, is that of property: which consists in the free use, enjoyment
and disposal of all his acquisitions, without any control or diminution, save only
by the laws of the land.
3. Property signifies that dominion or indefinite right of user, control and disposition
which one may lawfully exercise over particular things or objects (63 Am Jur 2d).
4. Property is composed of certain constituent elements, namely:
a) Exclusivity - the right of the owner to exclude others from enjoying a
particular thing or resource; and
b) Autonomy - the right of use, enjoyment and disposal of the particular subject
of property subject only to certain limitations provided by law.
B. Acquisition and Loss of Ownership
1. How acquired:
a) Ownership is acquired by occupation and intellectual creation or transmitted
by law, by donation, by estate and intestate succession, in consequence of
certain contracts - by tradition and by prescription (Art. 712, NCC.).
b) Ownership can also be acquired under the principle of accession (Art. 440
and 441, NCC).
c) Ownership can also be acquired by acquisitive prescription through adverse
possession (Title V, NCC).
d) Mode of Acquiring Ownership
(1) Is the specific cause which gives rise which gives rise to ownership;
(2) Ownership is a result of the presence of a special condition of things, of
the aptitude of persons, and of compliance with the conditions
established by law.
(3) Title and Ownership
(a) Is the juridical act which give the name to the acquisition of
ownership.
(b) By title, a juridical act has been performed but actual ownership is not
transferred until the property is delivered and the purchaser has taken
possession of the thing as in Sale.
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a) Over Things
b) Over Rights
2. Right to Exclude (Exclusionary Right)
a) Under the Civil Code
(1) Right to Exclude under the Civil Code (Art. 429, NCC)
(a) The owner or lawful possessor of a thing has the right to exclude any
person from the enjoyment and disposal of the thing.
(2) Right of Enclosure and Fences (Art. 430)
(a) Subject to servitudes and easements
(3) Self-Help
(a) Exception
i) Lawful Interference in cases of acts of necessities Art. 432, NCC
ii) Compensate affected owner for damages
(4) Resort to judicial process if possession is loss
(a) Art. 428, par. 2, NCC - The owner has a right of action against the
holder and possessor of the thing in order to recover it.
(b) Art. 433, NCC - Actual possession under a claim of ownership raises
a disputable presumption of ownership. Th true owner must resort to
judicial process in order to recover it.
b) Right to Use
(1) General Statement under Art. 428 of the Civil Code
(a) Par. (1) The owner has the right to enjoy things thing without other
limitations.
(b) Right to its Product or Increase
i) It carries with it the right to its product
ii) It carries with it the right to its increase
(c) Exceptions:
i) Limitation set by law
ii) Injurious Use - The owner of the thing cannot make use it in such
a manner as to injure the rights of a third person (Article 431, NCC
c) Right to Transfer
(1) Sometimes called alienability; as a general rule, any owner may freely
alienable his property to anyone but the scope of this right is sometimes
limited for reasons of public policy.
(2) The right of an owner to alienate or dispose his property in any lawful
manner
(3) Must comply with the mode appropriate appropriate to the kind of
property in order to be effectual.
(4) Art. 428 of the New Civil Code
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(a) The owner has the right to dispose property subject to limitations
established by law
(5) Kinds of Transfers
(a) Assignment of ownership
(b) Assignment of use only
d) Right to Vindicate
(a) Includes the right to protect and defend such possession against the
intrusion or trespass of others which may include self-help; and
(b) Right to judicial relief
e) Presumptions
(1) The law favours actual possessors (Article 433 of the Civil Code)
(2) Rule on accession favours the dominant property
f) Limitations
(1) An owner may put his property to any use not unlawful, however absolute
and unqualified may be his title, an owner holds the property under the
implied liability that his use of it shall not be injurious to the equal
enjoyment of others having an equal right to the enjoyment of their
property of others nor injurious to the rights of the community. a claim of
restrictions and limitation in the use of such property must be clearly and
indubitable established
(2) Governmental control and regulate properties to secure the general
safety, the public welfare and the peace, good order and morals of the
community. This does not confer power to control rights which are purely
and exclusively private, but it does authorise the establishment of laws
requiring each citizen so to conduct himself and use his own property as
not unnecessarily to injure another. The state may provide regulations as
to the acquisition, enjoyment and disposition of property and may even
take private property for a public purpose, subject to the right of the
individual to just compensation.
(3) Constitutional Limitations
(a) 1987 Constitution, Article XII, National Economy and Patrimony
(b) Use of Property Has a Social Function - The use of property bears a
social function, and all economic agents shall contribute to the
common good. Individuals and private groups, including corporations,
cooperatives and similar collected organisations, shall have the right
to own, establish and operate economic enterprises, however, this is
subject to the duty of the State to promote distributive justice and to
intervene when the common good so demand.
(c) Distributive Justice (Article XIII, Social Justice and Human Rights)
i) The use of property is subject to the duty of the state to promote
distributive justice.
ii) Enhance the right of people to human dignity, reduce social,
economic, and political inequalities and remove cultural inequities
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III. Possession
A. In General
1. Concept
a) The control or occupancy of a property by a person. Depending on how and
when it is used, the term possession has a variety of possible meanings. As
a result, possession, or lack of possession, is often the subject of
controversy in civil cases involving real and personal property. The idea of
possession is as old as the related concepts of private property and
ownership. Our modern possession laws originated in the ancient Roman
doctrines of possessio.
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(3) Any of the usual outward marks of ownership may suffice as possession
in the absence of manifest power in someone else.
3. How is Possession Exercise
a) Possession can be exercise in ones own name or in that of another (Art.
524)
b) Possession of a thing as an owner
c) Possession of a thing by reason of a right to hold, keep or enjoy without
being an owner; See Art. 559
B. Acquisition of Possession
1. How possession is acquired (Art. 531, NCC)
a) Material Occupation
b) Exercise of a Right
c) Control over thing/right that are subject to the action of our will (Art. 560,
NCC)
d) Constructive Delivery
(1) Tradicion brevi-manu
(2) Constitutum Possessorium
(3) Tradicion simbolica
(4) Tradition longa manu
e) Juridical Acts or by operation of law
2. Who can acquire possession
a) By the same person who is to enjoy it (Art. 532, NCC)
b) By his legal representatives, agent or any other person if ratified; in case of
minors/incapacitated persons, they need the assistance of their legal
representatives
c) By operations of law (Art. 534, NCC) as in the case of hereditary title -
transmission from the moment of death
d) Possession cannot be acquire through force or intimidation as long as there
is a possessor who objects to it (Art. 536, NCC; but see the doctrine of Self-
Help)
e) Acts merely tolerated and those executed clandestinely and without
knowledge or by violence do not affect possession (Art. 537, NCC)
f) Possession of movables in good faith is equivalent to a title, however, the
person who was unlawfully deprive may recover it (Art. 559, NCC); there
must be reimbursement in case of acquisition in public sale.
g) Possession as a fact cannot be recognized at the same time in two different
personalities except in co-possession (Art. 538, NCC)
(1) Present possessor is preferred
(2) The one longer in possession is preferred in case there are two
possessors
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(3) The one who presents a title is preferred in case of the date of possess
are the same.
C. Effects of Possession
1. Possession is respected and will be restored if disturbed, writ of ejectment may
be issued (Art. 539, NCC)
2. Presumptions of Ownership in favor of Actual Possessors
a) Just title - if possession is in the concept of an owner; possessor cannot be
obliged to show or prove it. (Art. 541, NCC)
b) A possessor who shows possession at some previous time is presumed to
have held possession also during the intermediate period in the absence of
proof to the contrary. (Art. 459, NCC)
c) Possession of real properties presumes possession of movables (Art. 542,
NCC)
3. Rules in common possession (Art. 534, NCC)
a) Allocation after division is presumed to have been possessed during the
entire duration of co-possession
b) Interruption of possession prejudices all the possessors
c) In case of Civil Interruption, the Rules of Court applies
D. Loss of Possession
1. General Rule (Art. 544, NCC)
a) By abandonment of the thing
b) By assignment made to another either by onerous or gratuitous title
c) By destruction or total loss of the thing or because it goes out of commerce
d) By the possession of another
(1) One year
(2) Ten years - real right of possession is lost
(3) Prescription on immovables is subject to land registration laws
2. Presumption
a) Movables are not deemed lost as long as they remain under the control of
the possessor even thought the time being he ay not know its whereabout.
E. Adverse Possession
1. Definition - The enjoyment of property with a claim of right when the enjoyment
is opposed to another persons claim. Simply put, adverse possession is
possession without authority and adverse to the interest of the lawful possessor.
Adverse possession can ripen into ownership when it is continuous, exclusive,
hostile, open, notorious and within the statutory period for acquisitive
prescription.
Adverse possession can either be in good faith or in bad faith.
2. Possession in Good Faith
a) Definition
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(1) A Possessor in good faith is a possessor who is not aware that there
exists in his title or mode of acquisition any flaw which invalidates it;
(2) Mistakes as to question of law may be a basis of good faith (Art. 526,
NCC);
(3) Good faith is presumed and bad faith has to be proved (Art. 527, NCC);
and
(4) Good faith is lost upon knowledge of the facts (Art. 528, NCC)
b) Effects of Possession in Good Faith
(1) On the Fruits
(a) Entitled to the fruits before possession is legally interrupted
(b) Right to his proportional share in case of natural and industrial fruits in
case of interruption
(2) Refund
(a) For necessary expenses with right of retention until reimbursement
(Art. 546, par. 1, NCC)
(b) For useful expenses with right of retention - owner has the option to
refund or to pay increase in value (Art. 546 par. 2, NCC)
(c) For expenses for pure luxury or mere pleasure (Art. 548, NCC)
(3) Removal
(a) Of useful improvements if it can be done without damage or refund
(Art. 547, NCC); and
(b) Of ornaments for embellishment if it suffers no injury and if owner
does not prefer to refund (Art. 548, NCC)
(4) Liability
(a) Not liable for the deterioration or loss except if there is fraudulent
intent or negligence after judicial summons
3. Possession in Bad Faith
a) Definition
(1) A possessor in bad faith is a possessor who is is aware, has knowledge
or has actual notice of any flaw in his title
b) Effects of Possession in Bad Faith
(1) On the Fruits
(a) Obligation to reimburse the owner/legitimate possessor the fruits
received
(2) Refund
(a) For necessary expenses only without right of retention (Art. 546 and
549, NCC)
c) Removal
(1) Of improvement for pure luxury or please if no injury is cause and the
lawful possessor does not prefer to retina the by paying its value (Art.
549, NCC)
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d) Liability
(1) Liable for losses including fortuitous events
4. Rule upon Recovery of Possession by the Lawful Possessor
a) Improvements caused by nature or time always insure to the benefit of the
person who succeeded in recovering possession (Art. 551, NCC); and
b) Nor is he obliged to pay for improvements which have cease to exist at the
time he takes possession of the thing (Art. 553, NCC)
c) Recovery of possession unjustly lost - possessor deemed to have
uninterrupted possession.
5. Acquisitive Prescription by Adverse Possession
a) Concept
The most controversial doctrine in property law. Title by adverse possession
is like title by theft or robbery, a primitive way of acquiring land without
paying for it.
The acquisition of land under the doctrine of acquisitive prescription by
adverse possession is recognized in all the civil and common law
jurisdictions. Proof of good faith on the part of the possessor of the land will
significantly reduce the limitation period in some jurisdictions (France, Spain
and the Philippines); in other jurisdictions evidence of good faith is not a
relevant consideration (Hungary, Germany and Massachusetts/US).
A significant difference in the application of adverse possession arises where
states have adopted a system of land registration. Where land is registered,
some states have abolished the capacity to acquire land by prescription (In
Philippines, lands registered under the Torrens System10 is not subject to
prescription) while retaining the right in respect of unregistered land. This
difference reflects the policy that the uncertainty of ascertaining ownership is
eliminated by a system of registration so that the rationale for the doctrine of
adverse possession is thereby weakened. Most states do, however, maintain
the doctrine of adverse possession in respect of registered land (United
Kingdom, Australia, United States and New Zealand) and courts continue to
recognize the public policy value of extinguishing title to registered property
after a certain period. 11
b) Justification in recognizing adverse possession
(1) Preventing frivolous claims - in effect, it is a special statue of limitations
for recovering possession of land by preventing stale and frivolous claims
by providing occupant with security of tenure.
(2) Correcting title defects - lengthy possession is treated as proof of title;
solves problems of longtime errors
(3) Encouraging development - transfers ownership from idle owners to
industrious squatters
(4) Protecting personhood - A thing which you have enjoyed and used as
your own for a long time, .. takes root in your being and cannot be torn
away without your resenting the act. 12
c) Elements
(1) Actual Possession - the claimant must physically use the land in the
same manner that a reasonable owner would, given its character,
location, and nature.
(2) Exclusive Possession - the claimants possession cannot be shared
with the owner or with the public in general.
(3) Open and Notorious Possession - the claimants possession must be
visible and obvious, so that if the owner made a reasonable inspection of
the land, he would become aware of the adverse claim.
(4) Adverse and Hostile Possession - the claimants possession must be
in against that of the owner. (See acts merely tolerated)
(5) Continuous Possession - the claimants possession must be as
continuous as a reasonable owners would be, given the character,
location, and nature of the land.
(6) Under a claim of title - Intention to acquire or to appropriate
(7) Within the Statutory Period - within the period given by the law for the
perfection of the title.
(a) Real Property
i) In Good Faith
ii) In Bad Faith
(b) Personal Property
i) In Good Faith
ii) In Bad Faith
d) Proving Adverse Possession
(1) Tacking of Possession - there is tacking of possession if the successive
occupants are in privity with each other. It is the joining of consecutive
period of possession by different persons to treat period as one
continuous period to establish continuous adverse possession for the
purpose of completing the statutory period provided by law to acquire
ownership of the thing possessed.
(2) Tolling of Possession - there is tolling of possession when the law
interrupts the running of the statue of limitations in certain situations as
when the lawful owner of the thing files an action in court to recover
possession the thing lost.
e) Acquisitive Prescription
(1) Acquisition of ownership by the adverse possessor of the thing
possessed.
12 Oliver Wendell Holmes, Jr. The Path of the Law, 10 Harv. L. Rev. 457 (1897)
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(a) Possession acquired and enjoyed in the concept of owner can serve
as a title for acquiring dominion (Art. 540, NCC)
(b) Adverse possessor acquires title to the land after a period of time set
by the law. Judicial action is not necessary for an adverse possessor
to obtain title; title is acquired by operations of law.
(c) Adverse possession claims normally arise in two (2) procedural
situations: the adverse possessor brings an action or raises the
doctrine as a defence to an owners lawsuit to recover possession.
(2) Prescription does not apply on registered lands - The possession of
immovables and other real rights is not deemed lost, or transferred for
purposes of prescription to the prejudice of third persons, except in
accordance with the provisions of the Mortgage Law and the Land
Registration laws. (Art. 557, NCC)
(a) Presidential Decree No. 1529 (Property Registration Decree).
i) Section 47. Registered land not subject to prescriptions. No title to
registered land in derogation o nth tile of the registered owner
shall be acquired by prescription or adverse possession.
(b) The Spanish Mortgage Law or Ley Hipoticaria was discontinued
under PD No. 1529, Section 3 and all Spanish titles were considered
as unregistered lands.
(c) Torrens Title System in the Philippines was introduced under Act No.
496 or the Land Registration Act in 1902.
A. Occupation
1. Definition
a) Things appropriable by nature which are without an owner are acquired by
occupation (Article 713, NCC)
b) But land cannot be acquired by occupation (Article 714, NCC).
2. Conditions for Acquisition:
a) Physical object;
b) Actual possession or control;
c) Intention to and capacity to acquire
d) Specific Resources: wild animals, hidden treasure and abandoned
movables.
e) Res nulius
(1) Includes domesticated animals that returned to the wild (20 days to
reclaim, otherwise it shall be considered as res nullius);
3. Special Rules:
a) Bees (right to pursue, 2 days);
b) Pigeons and fish (enticement rule);
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c) Hidden treasure (Art. 438, NCC); Finder must return (1/10 reward) or he is
liable for theft under RPC Article 308, Par. (1); and
d) Abandoned property becomes res nullius.
4. Republic Act No. 9147 (Wildlife Resources Conservation Act and
Protections Act)
a) State Policy
(1) Implements the policy of the State to Conserve the countrys wildlife
resources and their habitats for sustainability
(2) Objectives: Conserve, protect, regulate the collection and trade, pursue
commitment to international conventions, and to initiate scientific studies
on the conservation and protection of wildlife.
b) Illegal Acts:
(1) Section 27 enumerates the illegal acts;
(2) Killing, destroying, and injuring wildlife species;
(3) Damaging critical habitats;
(4) Introduction, reintroduction or restocking of wildlife resources;
(5) Collecting, hunting, possessing, trading, and transporting of wildlife and
their by products/derivative including active nests, nest trees, host plants
and the like; and
(6) Other similar acts
c) Subject to exceptions:
(1) Section 7 and Section 27 (paragraph a, subparagraph i to v)
(2) Use by indigenous people
(3) In accordance with customs and practices traditionally observed,
accepted and recognized including killing and destroying if part of
religious rituals of established indigenous peoples community; exception:
does not cover threatened species
d) Wildlife Permits issued by the DENR:
(1) Wildlife farm or culture;
(2) Wildlife collectors permit;
(3) Gratuitous permit;
(4) Local Transport Permit; and
(5) Export/Import/Re-export permit.
5. Roman Law Concepts:
a) res nullius (nobodys property / property without an owner) - a thing that
belong to no one. Res nullius is a Latin term derived from Roman law
whereby res (an object in the legal sense, anything that can be owned, even
a slave, but not a subject in law such as a citizen) is not yet the object of
rights of any specific subject. Such items are considered ownerless property
and are usually free to be owned. Examples of res nullius in the Civil Code
are wild animals and abandoned property. Thing completely lost or
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abandoned is res nullius, and therefore belonged to the first taker or the first
person to occupy/take control of the thing.
b) spes recuperandi (hope of recovery) - The hope of recovery or recapture; the
chance of retaking property which prevents the captors from acquiring
complete ownership of the property until they have definitely precluded it by
effectual measures.
c) animus revertendi (intent to return) - the intention to return; livestock remains
the property of the owner although they are not within the immediate control
of the owner. The concept was originally created to protect the rights of
livestock holders that had free ranging animals. Without the recognition of
animus revertendi, any animal that strayed away from the owner's property
onto public land could be killed and taken without any compensation to the
original caretaker. It takes a lot of time and effort to raise and feed a beast.
By recognizing that the caretaker has rights, it promotes the care and
feeding of animals, especially for human consumption, creates incentive to
produce by eliminating the free rider problem.
d) animus recuperandi (intent to recover) - the owner who lost possession has
not given up hope in recovering the property.
B. Accession
1. General rule:
a) The law assigned ownership of things produced to the owner of the principal
(Art. 440 and 441, NCC)
(1) Natural
(2) Industrial
(3) Civil
b) The law presumed that the accessory thing belongs to owner of the principal
(1) The possession of real property presumes that of the movables therein,
soloing as it is not shown that they should be excluded (Art. 542, NCC)
(2) The possession of movable is not deemed lost so long as hey remain
under he control of the possessor even though for the time being he may
not know their whereabouts (Art. 556, NCC)
c) Types of Accession
(1) Accession discreta- right of the owner pertaining to the fruits
(2) Accession continua - right of the owner pertaining to things attached or
incorporated
2. Rule on Accession in Immovable Property
a) General rule
(1) All that is built, planted or sown on the land is pressed to belongs to the
land owner (Art. 445, NCC) unless the contrary is proved (Art. 446, NCC)
(2) Drift woods belongs to the owner of the land unless claimed with
payment for expenses in the gathering and preservation
(3) Accretion on river banks under Art. 457, NCC belongs to the owner but
does not include accretion on lakes
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(2) When the accessory is more valuable than the principal, the owner may
demand separation even if there would be injury.
(3) If the things are mixed (no principal/accessory), proportional division
bearing in mind the value of the things mixed. (Art. 472, NCC)
d) Rule on Acquisition if there is Bad Faith (Art. 470, NCC)
(1) Owner of Accessory in Bad Faith - owner of the accessory loose the thing
without indemnity
(2) Owner of Principal in Bad Faith - owner of accessory may choose
reimbursement with damages or separation with damages.
(3) If both are in Bad Faith, rule is Art. 466, NCC
e) In case of Bad Faith in mixture/confusion
(1) Owner in BF loosed his property with indemnity (Art. 473, NCC)
f) Rule on owners of materials
(1) The maker in Bad Faith, owner of the material shall have the right to
appropriate the work without payment or demand value of the material
with damages
(2) Ownership of Materials Used
(a) In consensual contracts, payment of the materials
(b) If the material was use without consent, indemnity and delivery of a
thing equal in kind or value or price according to expert appraisal.
(Art. 471, NCC)
(c) Labor/Craft in good faith - craftsman acquires the materials with with
indemnity for the value of the materials, if the material is more
valuable than the finish goods, owner pays for the value of the work or
demand indemnity for the material (Art. 476, NCC)
g) Rules on Third Persons
(1) Reimbursement under Art. 443 - if the owner receives a fruit, he should
pay third persons who incur expenses in its production, gathering and
preservation.
C. Intellectual Creation
1. General Principles:
a) Properties that are created by the human mind;
b) Creation are transformed into physical objects:
(1) Physical copy of the book or in the case of songs and music the copy of
the recording is owned by the buying public;
(2) Many can use it without interfering with each others use. It is a public
good or a good that can be consumed without reducing any other
persons consumption of it. However, the intellectual content of the
created object is owned by the author or the creator; and
(3) Authors and inventors are given an incentive by giving a limited
monopoly on writings and inventions.
c) Three (3) types of Intellectual Creation:
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(1) Inventors are obliged to reveal how he made the invention so that others
may improve it
d) What can be patented
(1) There are four (4) categories of inventions to qualify for a patent; any
process, machine, manufacture, or composition of matter. Abstract
concept, mathematical algorithms, scientific principles and physical
phenomena cannot be patented.
e) Elements
(1) Utility - useful invention, benefit to human
(2) Novelty - new invention; prior arts examination
(3) Non-obviousness - obvious to persons with ordinary skills
(4) Enablement - description in details to enable a person skilled in the art to
which it pertains to make use of the same.
f) Patents Infringement - to prevail in a patent infringement action, the plaintiff
must show either:
(1) Literal infringement; or
(2) Infringement under the doctrine of equivalents.
4. Trademarks
a) Objective
(1) While copyrights and patent law seek to encourage creative efforts, the
goals of trademark are different. Its goal is to protect consumer form
being deceived inter purchasing shoddy goods and services
b) Trademark Infringement - to prevail in a trademark infringement action, the
plaintiff must prove:
(1) Plaintiff is holding a valid trademark with priority over the defendants
mark;
(2) the defendants mark is likely to cause confusion or deceive consumers;
or
(3) Defendant may be liable for trademark dilution if his conduct blurs or
tarnished the plaintiff.s famous mark.
(a) Priest who heard the confession of the donor during his last illness
(b) Relatives of such prints within the 4th degree, the church, order, etc.
of such priests.
(c) Guardians before the final account of guardianship have been
approved except if the guardian is an ascendant, descendant, siblings
or spouse;
(d) Physicians, medical attendants, etc.
(e) Unworthiness is not included since knowledge of this fact constitutes
a pardon. If the cause of unworthiness occurs after the donation, the
same cannot be revoke because donation inter vivos is revoked only
for causes under Art. 760, 764 and 765 of the NCC.
5. Void Donations
a) Between persons who are guilty of adultery or concubinage at the time of the
donation;
b) Made to a public officer or his wife, descendants and ascendants, in
consideration of his office.
c) Applicable to insurance as well
6. Formalities
a) Public Instrument
b) Acceptance, Notification and Ratification
7. Effects of Donations and Limitations
a) Present Properties
b) Future Properties
c) Inofficious Donations
d) On Debts and Usufruct
8. Revocation and Reduction of Donations
a) Coverage
b) Extent
c) Prescription of Action
D. Lease
1. Concept
2. Distinguished from Sale
3. Distinguished from Usufruct
4. Assignment of Lease
5. Obligation of Lessor
6. Obligation of Lessee
a) Payment
b) Increase and Decrease
c) Failure to Pay
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d) Diligence in use
e) Breach of Duty
f) Remedies
(1) Ejectment
(2) Recession of Contract
(3) Recovery of Damages
g) Tacit Renewal
7. Sale of Lease Property
8. Termination
9. Republic Act No. 7652 An Act Allowing Long-Term Lease of Private Lands by
Foreign Investors
a) Know as Investors Lease Act
b) Meaning of Investing in the Philippines - Making an equity investment in the
Philippines through actual remittance of foreign exchange or transfer of
assets, whether in the form of capital goods, patents, formulae, or other
technological rights or processes, upon registration with the SEC
c) Coverage - any foreign investor investing in the Philippines shall be allowed
to lease private lands solely for the purpose of the investment comprising of
such an area reasonably required by the business for a period not exceeding
fifty (50) years, renewable once for a period of not more than twenty-five (25)
years and subject to the provision of the CARL and LGC.
d) Termination
(1) Withdrawal of the approved investment;
(2) Termination by the Secretary of Trade and Industry if the investment
project is not initiated within three (3) years;
(3) Abandonment of the investment project within the lease period;
(4) Failure to pay for three (3) consecutive months coupled with non-
operation for the same period is considered as abandonment; and
(5) End of the lease period:
(a) Renewable upon mutual agreement of the party and upon showing
that the investment has made social and economic contribution to the
country
10. Batas Pambansa Blg. 877 and Republic Act Nos. 6643, 6828, 7644, 8437,
9161, 9341 and 9653 (Rent Control Acts)
a) Intention is to protect housing tenants in the lower income brackets from
unreasonable rent increases.
b) Limit of Increase of rent
c) Covers residential unit which refers to an appartment, house and/or land on
which anothers dwell is located and used for residential purpose and shall
include not only buildings parts or units used sold as dwelling places,
boarding house, dormitories, rooms and bedspaces offered for rent by their
owners, except motels, motel rooms, hotels, hotels rooms, but also those
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used for home industries, retail stores or other business purposes if the
owner and his family actually live therein and use it principally for dwelling
purposes
d) Lapsed
E. Usufruct
1. Definition:
a) Usufruct gives a right to enjoy the property of another with the obligation of
preserving its form and substance, unless the title constituting it or the law
otherwise provides (Art. 562, NCC). It is constituted by law, by the will of
private persons in acts inter-vivos or mortis cause and by prescription (Art.
563, NCC). The rights and obligation of the usufuctuary are provided in the
title or in case of deficiency by the code (Art. 565, NCC).
2. Rights and Obligation of the Owner
a) To make any works, improvements and plantings as long as it will not
diminish the usufruct or prejudice the right of the usufructuary
b) To received the thing at the end of the Usufruct
c) Things that deteriorates - obligation to return as is
d) Consumables - pay the appraised value at the time of the usufruct or to
return the same quantity and quality or pay the current price at the time the
usufructuary ceases.
e) To transfer or alienate the thing but he cannot alter its form or substance or
do anything thereon which may be prejudicial to the usufructuary
f) To be notified of the inventory and receive security for the thing
g) To remove trees that may be left in cases of calamities
h) To administer the thing if the usufructuary fails to give security
i) To make ordinary repairs if the usufructuary refused after demand, at the
expense of the usufructuary
j) To pay for extra-ordinary repairs upon notice, right to demand legal interest
for the time the usufructuary last
k) Pay taxes on that relates directly on the capital
3. Rights of Usufructuary
a) Entitled to the fruits growing at the time the usufruct begins (See Article 588,
NCC on Security).
b) Entitled to Civil fruits - can lease the land - proportionate to the time
c) Entitled to the benefits from industrial and commercial enterprise -
proportionate
d) In Wood land - natural fruits, including ordinary cutting without prejudicing
the preservation of the land. Cannot cut down trees unless it be to restore or
improve the land and must inform the owner.
e) Entitled to transfer or alienate his right of usufructuary
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f) Entitled to Vindicate - may obliged the owner to give him authority to file
action but his right to the fruit is limited to what is adjudged to belong to the
owner
g) Entitled to Set-Off the improvements introduce against the damage
h) Collect matured credits which forms part of the usufruct if he has given
security (or upon authority of the owner or the court)
4. Obligation of the Usufructuary
a) To make an inventory, description and appraisal with notice to the owner;
b) To give security
c) Not applicable to donor and parents who are usufructuaries of the things
donated
d) If usufructuary fails to five security, the owner may demand that immovables
be put under administration,
e) Movables be sold - artistic, sentimental worth - delivery to the owner with
payment of legal interest
f) Convert public bonds, instrument of credit payable to order or bearer to
registered certificates or deposited in a bank or public institution Cash be
invested to safe securities
g) The interest of the proceeds of the sale, public securities and bonds under
administration shall belong to the usufructuary
h) The owner may act as administrator if he so prefers until the usufructuary
gives security - entitled to fees of administration, by agreement or by court
order
i) Take care of the thing as a good father to a family
j) Woodland - special rule (Article 557)
k) Flock of animals - replacement of the young of the animals that die each
year from natural causes or due to rapacity of beast, uncommon events -
deliver the remains which may have been saved from the misfortune, if it
perish in part, the usufruct shall continue on the part save
l) Ordinary repairs - usufructuarys obligation, owner may demand and may
perform repairs at the expense of the usufructuary
m) Extra-Ordinary Repairs - obliged to notify the owner when the need for such
repairs is urgent
n) Demand payment for the improvement cause by extra-ordinary repairs made
by him on the thing
o) Pay debts of the owner in case the usufruct was made in violation of the
rights of creditors though he is not obligated to pay the obligation from a
mortgage
5. Extinguishment of Usufruct
a) Death of Usufructuary
b) Expiration of the term, fulfilment of the condition
c) Merger of the usufruct and ownership
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b) Criminal Prosecution
(1) Usurpation of Real Rights under Article 312 of the RPC
(a) By means of violence against or intimidation of persons takes
possession of any real property
(b) Usurp any real rights in property belonging to another
(2) Other Form of Swindling under Article 316 of the RPC
(a) Any person who pretending to be the owner of any real property shall
convey, sell, encumber of mortgage the same
(b) Any Person who knowing that the property is encumbered shall
dispose the same although such encumbrance is not recorded
(c) Any person who sell, mortgage or encumber real property use as
surety in a bond
c) Civil Action for recovery of Possession
(1) Forceable Entry and Unlawful Detainer
(a) An action instituted by a person deprived of the possession of any
land or building by force, intimidation, threat, strategy, or stealth
(Forceable Entry) or a landlord, vendor, vendee or other person
against whom the possession of any land or building is unlawfully
withheld after the expiration of any contract, express or implied
(Unlawful Detainer).
(b) Action is instituted with the Municipal/City Trial Court
(c) Action must be instituted within one year
i) From time of unlawful deprivation
ii) Demand to vacate
(d) Relief is restitution of possession with damages and costs
(e) Procedure is covered by Rule 70 of the Rules of Court on Forceable
Entry and Unlawful Detainer
i) Summary Procedure
ii) Immediate Execution on Judgement
iii) A possessor deprived of his possession may within ten days from
filing of the complaint present a motion to secure from the court a
writ of preliminary injection to restore him in his possession. Court
must decide the motion whiting thirty (30) days. (Art. 539)
d) Accin Publiciana
(1) If cause of dispossession is not FEUD or upon expiration of one year to
commence an action for FEUD
e) Recovery of Ownership and Possession
(1) Accion Reivindicatoria
(2) The action is for recovery of ownership and not just possession
(3) The defendant claims ownership over the land such as when there is
adverse possession
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C. Nuisance
1. Concept
a) Definition: A condition, activity, or situation that interferes with the use or
enjoyment of property especially a non-transitory condition or persistent
activity that either injures the physical condition of adjacent land or interferes
with the use or with the enjoyment of another of his property.
b) Persons in possession of real property (land owners, lessors, etc.) are
entitled to the quiet enjoyment of their lands. If a neighbour interferes with
that quiet enjoyment, either by creating smells, sounds, pollution or any other
hazard that extends past the boundaries of the property, the affected party
may make a claim in nuisance.
c) Competing property uses often posed a nuisance to each other and as a
result, the cost of litigation to settle the conflict became prohibitive. As a
response, local governments started to adopt zoning ordinances or a system
of land use planning that allows only certain activities in a given location.
Zoning generally overrules nuisance.
d) Modern legislations on the environment is an adaptation of the doctrine of
nuisance to the more modern complex societies. In this new context, a
person's use of his properties may be regulated although the harmfully affect
of his actions on his neighbour is far from the traditional nuisance activities.
e) Tort arising from such acts, conditions, or failures to act when they occur
unreasonably, the main feature of which is the interest invaded is the use or
enjoyment of property rights. The tort emphasizes the harm to the plaintiff
rather than the conduct of the defendant.
f) Legally, the term nuisance is traditionally used in three ways:
(1) Describes an activity or condition that is harmful or annoying to others
(2) Describe the harm caused by the before-mentioned activity or condition
(3) Describe a legal liability that arises from the combination of the two.
2. Under the Civil Code:
a) An act, omission, establishment, business, condition of property or anything
which injures, annoys, offends, shocks, defies decency, morality, obstructs or
interferes with free passage or hinders or impairs the use of property (Art.
694, NCC)
3. Nuisance according to the object or objects that it affects (Art. 695, NCC)
a) Public Nuisance or Common Nuisance affects a community or
neighbourhood or any considerable number of persons although the extent
of annoyance or range or damage is unequal
b) Private nuisance affects only specific individuals and not the whole
community; violates only private rights
4. Nature
a) Nuisance Per Se - nuisance at all times and under any circumstances,
regardless of location or surroundings
b) Nuisance Per Incidens - nuisance by reason of the circumstance and
surroundings.
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(d) Must be made with the approval of the district health officer and with
assistance of the local police
(e) The value of the property must not exceed three thousand pesos
d) Private Nuisance by Private Persons (Art. 706)
(1) Procedure is similar to abatement of public nuisance by private person
D. Torts
1. A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or
unlawful use of one's property in a manner that substantially interferes with the
enjoyment or use of another individual's property, without an actual Trespass or
physical invasion to the land.
2. A public nuisance is a criminal wrong; it is an act or omission that obstructs,
damages, or inconveniences the rights of the community. A public nuisance
interferes with the public as a class, not merely one person or a group of
citizens. However, if the individual suffers harm that is different from that
suffered by the general public, the individual may maintain a tort action for
damages. For example, if dynamiting has thrown a large boulder onto a public
highway, those who use the highway cannot maintain a nuisance action for the
inconvenience. However, a motorist who is injured from colliding with the
boulder may bring a tort action for personal injuries.
3. Private Nuisance as Tort
a) To determine accountability for an alleged private nuisance, a court will
examine three factors:
(1) The defendant's fault - the intention or the negligence of the defendant
that interfered with the plaintiff's use and enjoyment;
(2) The degree of interference with the plaintiff's interest - The law is not
intended to remedy trifles or redress petty annoyances. The interference
with the plaintiff's interest must be substantial.
(3) The reasonableness of the defendant's conduct - The law recognizes that
the activities of others must be accommodated to a certain extent,
particularly in matters of industry, commerce, or trade. The nature and
gravity of the harm is balanced against the burden of preventing the harm
and the usefulness of the conduct.
(4) The following are factors to be considered:
(a) Extent and duration of the disturbance;
(b) Nature of the harm;
(c) Social value of the plaintiff's use of his or her property or other
interest;
(d) Burden to the plaintiff in preventing the harm;
(e) Value of the defendant's conduct, in general and to the particular
community;
(f) Motivation of the defendant;
(g) Feasibility of the defendant's mitigating or preventing the harm;
(h) Locality and suitability of the uses of the land by both parties.
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E. Quieting of Title
1. An action brought to remove a cloud on title to real property by reason of any
instrument, record, claim, encumbrance or proceedings which is apparently
valid or effective but is in truth and in fact invalid, ineffective or unenforceable,
and may be prejudicial to said title. (Art. 476, NCC)
2. Legal or equitable title to or interest to real property
3. Return of all the benefits acquired by the plaintiff to the defendant (Art. 479,
NCC)
VII. LIMITATIONS OF OWNERSHIP
A. Injurious Use
1. General Rule
a) An owner cannot make use of the property in such manner as to injure the
rights of a third person.
2. On Ruinous Buildings and Trees in Danger of Falling
a) Chapter 4, Sections 482-483, NCC
b) Owner has the obligation to demolish or to execute necessary work
c) Administrative authority may order its demolition or to take measures to
insure public safety
B. Easements and Servitudes in General
1. Definitions:
a) Easement and Servitude in General
(1) An interest in land owned by another person, consisting in the right to use
or control the land, or an area above or below it, for specific limited
purpose such as to cross it for access to a public road. Unlike lease, an
easement may last forever, but it does not give the holder the right to
possess, take from, improve or sell the land.
(2) An easement or servitude is an encumbrance imposed upon an
immovable for the benefit of another immovable belonging to a different
owner. Servitudes may also be established for the benefit of a
community, or of one or more persons to whom the encumbered estate
does not belong (Articles 613, 614, 617 and 618, NCC).
(3) Easements are inseparable from the estate to which they actively or
passively belong.
(4) If the servient estate is divided between two or more persons, the
easement is not modified, and each of them must bear it on the part
which corresponds to him.
b) Dominant Estate
(1) The land benefitting from the estate is called the dominant estate
c) Servient Estate
(1) The land burdens by an easement is called servient estate
2. Kinds of Easements
a) Continuous or Discontinuous
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b) Apparent or Non-apparent
c) Positive or Negative
d) Legal and Voluntary
e) Legal and Private Easements
(1) Legal Easements: imposed by law for public use - governed by special
laws
(2) Private Easements: governed by the provisions of the Civil Code; without
prejudice to the provisions of general or local laws and ordinances for the
general welfare. These easements may be modified by agreement of the
interested parties, whenever the law does not prohibit it or no injury is
suffered by a third person
3. Modes of Acquiring Easements
a) By Prescription
(1) Continuous and apparent easements - by title or prescription of 10 years
b) By Title
(1) Continuous non-apparent and discontinuous easements - by title
4. Rights and Obligations (Article 627-630, NCC)
a) Dominant Estate
(1) The owner of the dominant estate may, upon notice to the owner of the
servant estate, make at his own expense any works necessary for the
use and preservation of the servitude, but without altering it or rendering
it more burdensome.
(2) Rules
(a) Most convenient time;
(b) Most convenient manner; and
(c) Least inconvenience
b) Servient Estate
(1) The owner of the servient estate cannot impair, in any manner
whatsoever, the use of the servitude. The owner of the servient estate
retains the ownership of the portion on which the easement is
established, and may use the same in such a manner as not to affect the
exercise of the easement.
(2) Exception - should the easement become very inconvenient to the owner
of the servient estate, it may be changed at his expense, provided he
offers another place or manner equally convenient without injuring the
dominant estates.
5. Extinguishment of Easements
a) By merger;
b) By prescription or non-user (form and manner) for ten years, however, If the
dominant estate belongs to several persons in common, the use of the
easement by any one of them prevents prescription with respect to the
others;
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(1) National roads shall have a right of way of not less than twenty (20)
meters, provided that such minimum width may be reduced at the
discretion of the Minister of Public Highways to fifteen (15) meters in
highly urbanized areas, and that a right of way of at least sixty (60)
meters shall be reserved for roads constructed through unpatented public
land and at least one hundred twenty (120) meters reserved through
naturally forested areas of aesthetic or scientific value.
(2) What is a setback
(a) Setback an offset applied and enforced over a real property, in the
form of negative easement, from property line to building line,
measured perpendicularly.
(b) Front setback provides breathing air for streets, and provisions for
future government constructions
8. Easement of Party Wall (Art. 658-666, NCC)
a) The easement of party wall shall be governed by the provisions of this Title,
by the local ordinances and customs insofar as they do not conflict with the
same, and by the rules of co- ownership (Art. 658, NCC).
b) Presumption
(1) The existence of an easement of party wall is presumed, unless there is
a title, or exterior sign, or proof to the contrary in dividing walls of
adjoining buildings up to the point of common elevation; In dividing walls
of gardens or yards situated in cities, towns, or in rural communities; and
in fences, walls and live hedges dividing rural lands.
c) Renunciation
(1) If the owner of a building, supported by a party wall desires to demolish
the building, he may also renounce his part-ownership of the wall, but the
cost of all repairs and work necessary to prevent any damage which the
demolition may cause to the party wall, on this occasion only, shall be
borne by him (Art. 663, NCC). See also repairs on party walls.
d) Repairs
(1) The cost of repairs and construction of party walls and the maintenance
of fences, live hedges, ditches, and drains owned in common, shall be
borne by all the owners of the lands or tenements having the party wall in
their favor, in proportion to the right of each. Nevertheless, any owner
may exempt himself from contributing to this charge by renouncing his
part-ownership, except when the party wall supports a building belonging
to him (Art. 662, NCC)
e) Use
(1) Every part-owner of a party wall may use it in proportion to the right he
may have in the co- ownership, without interfering with the common and
respective uses by the other co-owners (Art. 666, NCC).
9. Easement of Light and View
a) Right to Light:
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(1) Right to light is a form of easement that gives an owner of a building with
windows a right to maintain the level of illumination necessary for use in
the building.
(2) Generally a right to light refers to the right to receive sufficient light
through an opening (such as a window), allowing ordinary comfortable
use and enjoyment of a dwelling, or ordinary beneficial use and
occupation of other buildings.
(3) The levels of acceptable light have not been objectively quantified and
are instead assessed on a case by case basis by the courts. However,
sufficient light according to the ordinary notions of mankind and
tangible deprivation to a building are arguable expressions that have
earned substantial fees to the legal and surveying professions and given
rise to specialists and expert witnesses in this field.
(4) Rights to light can be the result of 'easements', or can be nuisance
issues. It is a nuisance issue if there is interference with a persons right
to enjoy his property, such interference must be unreasonable to
constitute nuisance.
b) Covered by Articles 667-673 of the NCC
(1) General Rule (Art. 667, NCC)
(a) No part-owner may, without the consent of the others, open through
the party wall any window or aperture of any kind.
(2) Two Meter Rule
(a) No windows, apertures, balconies, or other similar projections which
afford a direct view upon or towards an adjoining land or tenement
can be made, without leaving a distance of two (2) meters between
the wall in which they are made and such contiguous property.
Neither can side or oblique views upon or towards such conterminous
property be had, unless there be a distance of sixty centimeters. The
non-observance of these distances does not give rise to prescription
(Article 670, NCC).
(b) Whenever by any title a right has been acquired to have direct views,
balconies or belvederes overlooking an adjoining property, the owner
of the servient estate cannot build thereon at less than a distance of
three meters to be measured in the manner provided in article 671.
Any stipulation permitting distances less than those prescribed in
article 670 is void. (Articles 673, NCC)
(3) Exception to the Two Meter Rule
(a) When the distances in Article 670 are not observed, the owner of a
wall which is not party wall, adjoining a tenement or piece of land
belonging to another, can make in it openings to admit light at the
height of the ceiling joints or immediately under the ceiling, and of the
size of thirty centimeters square, and, in every case, with an iron
grating imbedded in the wall and with a wire screen (Article 667,
NCC).
(b) Separated by public highway or alley - not applicable to buildings
separated by a public way or alley, which is not less than three meters
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danger to an adjacent land or building shall be void. Article 686. The legal
easement of lateral and subjacent support is not only for buildings
standing at the time the excavations are made but also for constructions
that may be erected. Article 687. Any proprietor intending to make any
excavation contemplated in the three preceding articles shall notify all
owners of adjacent lands (Article 684 - 687, NCC).
e) Excavation under PD No. 1096
(1) Section 1202, P.D. 1096 - Excavation, Foundation, and Retaining Walls
(a) Subject to the provisions of Articles 684 to 686 of the Civil Code of the
Philippines on lateral and subjacent support, the design and quality of
materials used structurally in excavation, footings, and in foundations
shall conform to accepted engineering practice.
14. Easement relating to waters
a) Characterization of Water
(1) Diffuse surface water
(a) Common enemy rule - water is common enemy to all so everyone has
a right to get rid of it in any manner they see fit. The shortcoming of
this approach is the failure to consider the consequences when
neighboring land owners are looking out for their personal interest to
the detriment of the others.
(b) Civil law rule - adopted by Civil Law countries; an individual can get
rid of the water in a manner that is in accord with the natural flow of
the water. This approach favors the upstream land owners at the
expense of the downstream.
(c) Reasonable use - determines where the water should go based upon
what would be reasonable for the ordinary person under the
circumstance. The approach, while providing the greatest flexibility,
provides the greatest uncertainty.
(2) Naturally flowing water
(a) Prior appropriation theory - Whoever takes the water first has superior
rights to the water.
(b) Natural flow theory - rights to the water are dependent on the waters
natural flow not being disturbed. Favors the upstart owners in a
potential unfair manner.
(c) Reasonable use - determined on a case to case basis looking at what
is reasonable under the circumstance.
(3) Percolating water
(a) Definition - Percolating waters are those which ooze, seep, or filter
through the soil beneath the surface, without a defined channel, or in
a course that is unknown and not discoverable from surface
indications without excavation for that purpose.
(b) Absolute theory - property owner has an absolute ownership of any
water that percolates through their land. May be unduly prejudicial to
neighboring landowners.
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(c) Co-relative rights theory - rights to percolating water are based on the
amount of surface water owned. This does not consider the need or
reward the effort and ingenuity it may take to remove the water.
(d) Reasonable use theory - uses the reasonable person standard to
determine the rights of the rival claimants to the percolating water.
b) Articles 637-648 of the NCC
(1) General Rule
(a) Lower estates are obliged to receive the waters which naturally and
without the intervention of man descend from the higher estates, as
well as the stones or earth which they carry with them. The owner of
the lower estate cannot construct works which will impede this
easement; neither can the owner of the higher estate make works
which will increase the burden.
(2) Easement of Aqueduct
(a) Any person who may wish to use upon his own estate any water of
which he can dispose shall have the right to make it flow through the
intervening estates, with the obligation to indemnify their owners, as
well as the owners of the lower estates upon which the waters may
filter or descend. (Article 642, NCC)
(b) For legal purposes, the easement of aqueduct shall be considered as
continuous and apparent, even though the flow of the water may not
be continuous, or its use depends upon the needs of the dominant
estate, or upon a schedule of alternate days or hours, (Article 646,
NCC)
(c) One who for the purpose of irrigating or improving his estate, has to
construct a stop lock or sluice gate in the bed of the stream from
which the water is to be taken, may demand that the owners of the
banks permit its construction, after payment of damages, including
those caused by the new easement to such owners and to the other
irrigators, (Article 647)
(d) Conditions: One desiring to make use of Easement of Aqueduct is
obliged:
i) To prove that he can dispose of the water and that it is sufficient
for the use for which it is intended;
ii) To show that the proposed right of way is the most convenient and
the least onerous to third persons;
iii) To indemnify the owner of the servient estate in the manner
determined by the laws and regulations. (Article 643, NCC)
(e) Limitations:
i) Article 644. The easement of aqueduct for private interest cannot
be imposed on buildings, courtyards, annexes, or outhouses, or on
orchards or gardens already existing. (559)
ii) Article 645. The easement of aqueduct does not prevent the
owner of the servient estate from closing or fencing it, or from
building over the aqueduct in such manner as not to cause the
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(c) Criticism of zoning laws comes from those who see the restrictions as
a violation of property rights. It has been argued that local zoning
authorities can too easily strip property owners of their right to
unencumbered use of their land.
(d) Criticized as a means to promote social and economic segregation
through exclusion. These exclusionary zoning measures artificially
maintain high housing costs through various land-use regulations
such as maximum density requirements. Thus, lower income groups
deemed undesirable are effectively excluded from the given
community. i.e. gated subdivisions vs. slums
(e) In the American South, zoning was introduced as an explicit
mechanism for enforcing racial segregation of communities.
(f) Work against economic efficiency and hinder development in a free
economy. Poor zoning restriction are claimed to hinder the optimal
efficient usage of a given area.
(2) Land Use Regulation - Public regulations of the use and development of
land that generally focuses on four aspects of land use, namely:
(a) The type of use, such as whether it will be used for agricultural,
commercial, industrial, or residential purposes;
(b) The density of use, manifested in concerns over the height, with, bulk
or environmental impacts of the physical structure of the land;
(c) The aesthetic impact of the use, which may include the design and
placement of the structure of the land; and
(d) The effect of the particular use of the land on the cultural and social
values of the community
(3) Zoning - describes the control, usually by local authority, of the use of
land and of the buildings and improvements thereon. Areas of land are
divided by appropriate authorities into zones within which various uses
are permitted. It is a tool in land use planing.
(4) Terms
(a) Non-Conforming Uses - use that is impermissible under current
zoning restrictions but the is allowed because the use existed lawfully
before the restriction took effect.
(b) Amortisation
(c) Zoning Amendments
(d) Zoning Variance - A license or official authorization to depart form a
zoning law.
(e) Special Exceptions - An allowance in a zoning ordinance for special
use that are considered essential and are not fundamentally
incompatible with the original zoning regulation.
(f) Spot Zoning - Zoning a particular piece of land without regard for the
zoning of the larger area surrounding the land.
(g) Private Zoning - The use of restrictive covenants in private agreement
to restrict the use and occupancy of real property. Private zoning often
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d) Regulatory Taking
(1) Conventional taking applies only when government physically seized
private property
(2) If it merely regulates the use of property under the police power to
prevent harm to the public, no taking occurred.
(3) But a regulation might restrict an owners right to such extent that it
becomes the functional equivalent of a seizure. So, when is the line
between an appropriate regulation and a regulatory taking?
3. Taxation
a) The theorem states that if trade in an externality is possible and there are
sufficiently low transaction costs, bargaining will lead to an efficient outcome
regardless of the initial allocation of property. In practice, obstacles to
bargaining or poorly defined property rights can prevent Coasian bargaining.
b) Meaning of Transaction Cost - any direct costs, as well as any concomitant
inefficiencies in production or misallocation that resulted from them. When
property rights are protected and maintained in any context, transaction
costs exist. In economics and related disciplines, a transaction cost is a cost
incurred in making an economic exchange. In the neoclassical approach,
enforcement-type costs within firms are not transaction costs. Transaction
costs consist of those costs that occur between firms or individuals from the
process of market exchange.
c) If transaction costs are prohibitively high then property rights will neither be
established nor maintained and property rights will be zero. The reverse,
however, is not necessarily true. If property rights are complete in some
situation, there are two possibilities, either transaction costs are zero, or
costs may have been incurred to guarantee the property rights simply
because the benefits of doing so exceed the costs - in which case
transaction costs are positive. Further, when property rights are zero,
transaction costs could also be zero. For example, if a property right could
never be established, despite the resources devoted towards such a goal, no
one would bother making any expenditures towards establishing property
rights and the good would remain unowned. For example, there are no
property rights over the planet Venus and no efforts have been made to
establish any.
D. Covenants, Conditions and Restrictions
1. Also known as private land use restriction
2. Historically, land use was viewed primarily as a private matter and not a public
concern. But under some circumstance, an owners plan might conflict with a
core policy embodied in a private land use restriction.
a) A real covenant is a promise concerning the use of land that benefits and
burdens the original owners and their successors.
b) In the Philippines, these restrictions is usually annotated in the certificate of
title to land and is considered as a burden. The annotation serves as a
notice to the buyer of the existence of the restriction and his/her acquiesce to
it when he/she buys the land.
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