You are on page 1of 128

+

Ad Majorem Dei Gloriam

PROPERTY NOTES

PRELIMINARY PROVISIONS Res alicujus: belonging to someone can be owned privately (in an individual or collective
Art 414 All things which are or may be the object of appropriation are capacity) may be tangible or intangible
considered either: Rights as property
1. Immovable or real property; or property is sometimes used to denote the thing with respect to which
2. Movable or personal property. legal relations between persons exist the res over which rights
(particularly ownership) may be exercised and sometimes to the rights
Whats a thing? with respect to the thing
any object that exists and is capable of satisfying some human needs either real or property
includes both objects that are already possessed or owned and those
that are susceptible of appropriation What is a real right?
more comprehensive term (than property), as there are things which are Right or interest belong to a person over a specific thing
not susceptible of appropriation and they are not included in the concept Without a definite passive subject against whom such right may be
of property personally enforced
Jus in re
Whats property? The res of a real right may be
refers to any thing which is already the object of appropriation or found o Personal property (as in pledge and chattel mortgage)
in the possession of man o Real property (easement, real mortgage)
o Either personal or real (as in ownership, possession, usufruct)
Requisites of property If the res of a real right is real property, the right itself is real property;
1. Utility otherwise it is personal property
Capacity to satisfy some human wants
2. Substantivity Classification of real rights based upon dominion
Quality of having existence apart from any other thing 1. Domino pleno powers to enjoy and to dispose are united
3. Appropriability a. Dominion, civil possession, hereditary right
Susceptibility of being possessed by man 2. Domino menos pleno powers to enjoy and dispose are separated
Res communes or common things are not capable of appropriation in a. Surface right, usufruct
their entirety, although they may be appropriated under certain 3. Domino limitado powers to enjoy and to dispose, though united, are
conditions in a limited way, and thereby become property in law limited
Electricity, oxygen, etc a. By a guaranty (mortgage, pledge)
Res nullius or a thing may have no owner because it has not yet been b. By a charge (easement)
appropriated, or because it has been lost or abandoned by the owner. it c. By a privilege (pre-emption, redemption)
constitutes property as long as it is susceptible of being possessed for
the use of man What is a personal right?
Wild animals, hidden treasure Right or power of a person
Things cannot be considered as property when they are not susceptible To demand from another as a definite subject
of appropriation because of The fulfillment of the latters obligation.
legal impossibility (you cant sell your body while youre alive, Jus in personam or jus ad rem
at least not legally) or Personal right, or right of obligation, has the following elements:
physical impossibility (you cant own the moon, at least not yet) 1. Active subject (person in whom the right resides)
2. Passive subject (person against whom the right is available)

1
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

3. Object or prestation or the conduct (to give, to do, or not to do) For prescription (4 and 8 years for movables; 10 and 30 years for
4. Juridical or legal tie which binds the parties to the obligation immovables)
Transactions involving real property must be recorded in the Registry of
Real Right Personal Right property to affect 3rd parties. Not required with personal property, except
Definite active subject Definite active subject and a for chattel mortgage cases.
who has a right against all definite passive subject Art 415 The following are immovable property:
persons generally as an 1. Land, buildings, roads, and constructions of all kinds adhered to
indefinite passive subject the soil;
Object is generally a Object always an incorporeal 2. Trees, plants, and growing fruits, while they are attached to the
corporeal thing thing land or form an integral part of an immovable;
Created by mode and Created by title 3. Everything attached to an immovable in a fixed manner, in such a
title way that it cannot be separated therefrom without breaking the
Extinguished by the loss Personal right survives the material or deterioration of the object;
or destruction of the thing subject matter 4. Statues, reliefs, paintings or other objects for use or
which it is exercised ornamentation, placed in buildings or on lands by the owner of the
Directed against the Directed against a particular immovable in such a manner that it reveals the intention to attach
whole world (actio in rem person (actio in personam) them permanently to the tenements;
against 3rd persons) 5. Machinery, receptacles, instruments or implements intended by the
owner of the tenement for an industry or works which may be
Whats the importance of the classification into movables or immovables? carried on ina building or on a piece of land, and which tend
In private international law, general rule is that immovables are directly to meet the needs of said industry or works;
governed by the law of the country in which they are located, whereas 6. Animal houses, pigeon-houses, beehives, fish ponds or breeding
movables are governed by the personal law of the owner which in cases places of similar nature, in cases their owner has placed htem or
is the law of his nationality or his domicile preserves them with the intention to have them permanently
In criminal law, usurpation of property can take place only with real attached to the land, and forming a permanent part of it; the
animals in these places are included;
property. On the other hand, robbery and theft can be committed only
7. Fertilizer actually used on a piece of land;
against personal property
8. Mines, quarries, and slag dumps, while the matter thereof forms
In procedural law, actions concerning real property are brought in the
part of the bed, and waters either running or stagnant;
RTC where the property is located, whereas actions involving personal
9. Docks and structures which, though floating, are intended by their
property are brought in the court where either the defendant or plaintiff
nature and object to remain at a fixed place on a river, lake, or
resides.
coast;
o Forcible entry and unlawful detainer for REAL property
10. Contracts for public works, and servitudes and other real rights
o Replevin or manual delivery for PERSONAL over immovable property.
In contracts, only real property can be the subject matter of real
mortgage and antichresis, while only personal property can be the Classes of immovable or real property (NIDA)
subject matter of mutuum, voluntary deposit, pledge 1. By nature (cannot be carried from place to place)
In order that the donation of an immovable may be valid, it must be 2. By incorporation (attached to an immovable in a fixed manner to be an
made in a public instrument. For movables, may be oral or in writing (if integral part thereof)
more than P5000, need only to be in a private instrument) 3. By destination (placed in an immovable for the utility it gives)

2
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

4. By analogy (by express provision of law because it is regarded as If temporarily separated, will still be regarded as immovable if there is
united to the immovable property) an intent to put them back (but there are different opinions to this)
Intent to attach permanently is essential objects placed by humans
Lands, buildings, roads and constructions of all kinds with intention to permanent annexation lose their identity as movables
Must adhere to the soil
Buildings must be more or less of a permanent structure independent of Statues, reliefs, paintings, or other objects for use or ornamentation
and regardless of the ownership of the land on which it is erected since Immovable when:
the law makes no distinction (so possible to mortgage building even if in o Placed on the immovable by the owner of the latter, and
the land of another, since its separate from the land o In such a manner that it reveals the intention to attach them
Roads, whether public or private, are immovable permanently to the tenements
Real property treated by the parties as personal property Not necessarily by him personally, can be by his agent
o A building is by itself an immovable property irrespective of If placed by a person not the owner like a lessee, the object will not
whether or not said structure and the land on which it is adhere to attain the character of immovable unless such person acts as an agent
belong to the same owner of the owner
o A valid real estate mortgate can be constituted only on the
building erected on the land belonging to another Machinery, receptacles, instruments, or implements for an industry or works
o The parties to a contract of chattel mortgage may, by agreement, Immovable only when:
treat as personal property that which by nature would be real o Placed by the owner of the tenement or his agent
property (estopped! So they can be subject to a writ of replevin o Industry or works must be carried on in a building or on a piece
between parties) of land
However, the chattel mortgage is not binding on third o Machinery, etc must tend directly to meet the needs of the said
persons. industry or works
Machinery which is movable in its nature only becomes immobilized
Trees, plants and growing fruits when placed in plant by the owner of the property or plant, but not when
Immovable while they are: so placed by a tenant, a usufructuary, or any person having only a
o Attached to the land, or temporary right (Davao Saw Mill v Castillo)
o Form an integral part of an immovable o Exception (becomes immovable):
Once cut or uprooted, they become movable 1. Such person acted as the agent of the owner, or
Growing crops or fruits, or ungathered products or fruits, may be treated 2. Lease agreement states that the machines will pass over to
as personal property for the purposes of attachment, execution and the the lessor after the expiration of the lease agreement (US
chattel mortgage law (Sibal v Valdez) Valdez case)
When growing crops are sold and before they are even harvested, the Must be essential and be principal elements of an industry or works to
transaction is considered as sale of movables because it is a given that the business, not merely incidental to business (Mindanao Bus
they are to be gathered or harvested for delivery Company v City Assessor)
o Cash registers, typewriters for hotels, restaurants, theaters are
Everything attached to an immovable in a fixed manner merely incidental, these businesses can continue on without
Attachment must be such that them
o It cannot be separated from the immovable o Machineries of breweries used in the manufacture of liquor,
o Without breaking the material, or though movable by nature, are immobilized because they are
o Deterioration of the object essential to said industries

3
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

For purposes of taxation, it doesnt matter who placed the machines Contracts for public works and servitudes and other real rights over
the owner or mere lessee, as long as it is essential and principal immovables
elements of an industry. The term real property may include things Where the res of a real right is real property, the right itself is real
which should generally as personal property. It is a familiar property. So ownership is real property if the thing owned is immovable
phenomenon to see things classified as real property for purposes of o Loan is real property by analogy if secured by a real estate
taxation which on general principle might be considered personal mortgage
property. (Meralco v Central Board of Assessment Appeals in this Where it is personal property, the right itself is personal property
case, the storage tanks were placed by Meralco, who wasnt the owner o Exception: case of contracts for public works which are
of the land, but it was still considered immovable) considered real property
Attachment or incorporation to immovable not essential, since they
become immovable because of destination, what is essential is their
utility
CHAPTER TWO: MOVABLE PROPERTY
Animal houses, pigeon houses, beehives, fish ponds or breeding places of
similar nature Art 416 The following things are deemed to be personal property:
Considered immovable: 1. Those movables susceptible of appropriation which are not
o In case their owner has placed them or preserves them included in the preceding article;
2. Real property which by any special provision of law is considered
o With the intention to have them permanently attached to the
as personalty;
land
3. Forces of nature which are brought under control by science; and
o And forming a permanent part of it.
4. In general, all things which can be transported from place to place
o The animals in these places are included. without impairment of the real property to which they are fixed.
Must permanently form part of the land and so intended by the owner
Art 417 The following are also considered as personal property:
Fertilizers actually used on a piece of land 1. Obligations and actions which have for their object movables or
Immovable when demandable sums;
o Actually used on a piece of land 2. Shares of stock of agricultural, commercial and industrial entities,
Fertilizers kept in a barn are not immovable although they may have real estate.

Mines, quarries and slag dumps Classes of movable or personal property


Immovable when 1. Property not included in Art 415
o While the matter thereof forms part of the bed 2. Considered personal property by special provision of law
o Meaning, the matter thereof remains unsevered from the soil 3. Forces of nature brought under control by science
Waters, either running or stagnant, are classified as immovables 4. In general, all movable things
a. Whether the property can be transported or carried
Docks and structures, though floating from place to place;
Immovable if b. Whether such change of lacation can be made
o Intended by their nature and object without injuring the immovable to which the object
o To remain at a fixed place on may be attached, and
c. Whether the object does not fall within any one of the
o A river, lake or coasts
cases in Art 415

4
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

5. Obligations and actions (personal rights, they having a definite a. The state in its private capacity; known as patrimonial property
passive subject) b. Private persons, either individually or collectively
6. Shares of stock
7. Other incorporeal personal property Property is presumed to be State property in the absence of any showing to
a. Intellectual property such as copyrights, patents, etc the contrary. (Regalian Doctrine)

Art 418 Movable property is either consumable or non-consumable. To Whats dominion?


the first class belong those movables which cannot be used in a 1. Not owned by the State but simply under its jurisdiction and
manner appropriate to their nature without their being consumed; to administration for the collective enjoyment of all the people of the State
the second class belong all the others. 2. Purpose is to serve the citizens, not the State as juridical person
3. Rises from the fact that the State is the juridical representative of the
Importance of classification: social group
Consumable goods cannot be the subject matter of a commodatum
(unless for mere exhibition) Art 420 The following things are property of public dominion:
In a mutuum, the subject matter is money or other consumable thing 1. Those intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the States, banks
Consumable shores, roadsteads and others of similar character
Depends on nature of thing itself 2. Those which belong to the State, without being for public use,
Cant be used in a manner appropriate to their nature without being and are intended for some public service or for the
consumed development of the national wealth

Fungible Three kinds of public dominion property


Depends on the intention or purpose of the parties 1. Intended for public use
Can be substitute by another thing of the same kind, quantity and Can be used by everybody
quality 2. Not for public use but intended for some specific public service
Only be used by duly authorized people, such as government
Money, while characterized as a movable, is generic and fungible. (BPI buildings, etc
v Franco) 3. Intended for the development of national wealth, even if not employed
for public use or service
Minerals, coal, oil, forests
CHAPTER THREE: PROPERTY IN RELATION TO WHOM IT
Charging of fees to the public does not affect the public character of the road
BELONGS or its character as property for public use.
Art 419 Property is either of public dominion or of private ownership What are other property of similar character to those intended for public
use?
Property is either of 1. Public streams, river channels, river beds, etc
1. Public dominion or property owned by the State (or its subdivisions) in 2. Accretions to the shores of the sea
its public or sovereign capacity and intended for public use and not for 3. Submerged lands or lands reclaimed from the sea by the government
the use of the State as a juridical person
2. Private ownership or property owned by:

5
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Mere reclamation of certain foreshore land does not convert these Lands of the public domain
inalienable natural resources of the state into alienable or Does not include all lands of government ownership but only so much of
disposable lands of the public domain. said lands as are thrown open to private appropriation and settlement
There must be a law or proclamation officially classifying them by homestead law
such.
4. Lands that disappeared into the sea Government lands
5. Canals constructed on private lands of private ownership but the owner Broader term
loses his proprietary right over said canal through prescription by Includes not only public lands, but also
allowing the public to use it for transportation 1. other lands of the government already reserved or devoted to
6. Foreshore lands when the sea moved toward an estate and the tide public use,
invade it, the invaded property becomes foreshore and passes to the 2. or subject to private rights,
public realm 3. and patrimonial lands
- Foreshore land is the strip of land that lies between the high and
low water marks Alienation of public agricultural land
7. Lot on which stairways were built for the use of the people as Unless pubic land is shown to have been reclassified and alienated by
passageway to the highway the State to a private person, it remains part of the inalienable public
domain
Roads refer to those constructed by the national government All other lands are presumed to belong to the State
Canals constructed by private persons over private lands are of private
ownership Art 421 All other property of the State, which is not of the character
Roadstead is a place less sheltered or enclosed than a harbor where stated in the preceding article, is patrimonial property.
ships may ride at anchor
Patrimonial property
Properties of public dominion are outside of the commerce of man. Again, Property of the State owned by it in its private or proprietary character
their purpose is to serve the citizens. Not for public use, service or development of the national
They can not be the object of appropriation either by the State or private wealth
persons. May be acquired by private individuals or juridical persons through
So prescription; can be the object of an ordinary contract
1. Cannot be sold, leased or be the subject of contracts
2. Cannot be acquired by prescription, not even by municipalities as Art 422 Property of public dominion, when no longer intended for
against the State public use or for public service, shall form part of the patrimonial
3. Cannot be encumbered, attached, or be subject to levy and sold at property of the State.
public auction.
4. Cannot be burdened with easements Property of the National Government
5. Cannot be registered under the land registration law and be the subject Not self-executing
of a Torrens title There must be a formal declaration by the executive (exercised by the
Inclusion of public dominion property does not confer title on the President) or possibly legislative department that the property is no
registrant longer needed for public use or for public service before the same can
be classified as patrimonial property
Public lands v Government lands A positive act declaring land as alienable and disposable is required
Public lands

6
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

1. Presidential proclamation or executive order Political subdivisions cannot register as their own any part of the public
2. Administrative action domain, unless it is first shown that a grant thereof has been made or
3. Investigation reports of Bureau of Lands investigators possession has been enjoyed during the period necessary to establish a
4. Legislative act or a statute (Sec of DENR v Yap) presumption of ownership.
Classification of public lands is the exclusive prerogative of the If the property is owned by the municipality in its public and
Executive Department courts have no authority (Sec of DENR v Yap) governmental capacity, the property is public and Congress has
Abandonment cannot be inferred from non-use. (Roponggi case) absolute control over it.
Two requisites for judicial confirmation of imperfect or incomplete title, If it is owned in its private or proprietary capacity, then it is patrimonial
under CA 141 and Congress has no control over it. (page 63, de Leon)
1. open, continuous, exclusive and notorious possession and
occupation of the subject land by himself or through his Case doctrines:
predecessors-in-interest under a bona fide cliam of ownership The use of subdivision roads by the general public does not strip it of its
since time immemorial or from June 12, 1945 private character.
2. classification of the land as alienable and disposable land of Transfer of ownership from the subdivision owner-developer to the local
the public domain (Sec of DENR v Yap) government is not automatic but requires a positive act from the owner-
Unclassified land? Considered as forest land (Sec of DENR v Yap) developer before the city or municipality can acquire dominion over the
subdivision roads. Until and unless the roads are donated, ownership
Property of Political Subdivisions remains with the owner-developer. (Woodridge School, Inc v ARB
For provinces, cities and municipalities, the conversion must be Construction Co, Inc)
authorized by law
Municipal corporation has discretionary power to withdraw a street from Art 425 Property of private ownership, besides the patrimonial property
public use and sell it. (Cebu Oxygen v Becilles) of the State, provinces, cities, and municipalities, consists of all
property belonging to private persons, either individually or
Art 423 The property of provinces, cities, and municipalities is divided collectively.
into property for public use and patrimonial property.
Private property
Art 424 Property for public use, in the provinces, cities, and 1. Belonging to private persons, either individually or collectively
municipalities, consist of the provincial roads, city streets, municipal 2. Belonging to the State and any of its subdivisions which are patrimonial
streets, the squares, fountains, public waters, promenades, and public in nature
works for public service paid for by said provinces, cities or
municipalities. There is nothing that will prohibit churches from alienating things
classified into sacred, religious, and holy.
All other property possessed by any of them is patrimonial and shall
be governed by this Code, without prejudice to the provisions of Art 426 Whenever by provision of law, or an individual declaration, the
special laws. expression immovable things or property or movable things or
property is used, it shall be deemed to include, respectively, the
Property of Political Subdivisions things enumerated in Chapter 1 and Chapter 2.
Note that the articles speak of property for public use, indicating that Whenever the word muebles or furniture, is used alone, it
properties for public service are patrimonial. (ambulance of the local shall not be deemed to include money, credits, commercial securities,
government) stocks and bonds, jewelry, scientific or aristic collections, books,
medals, arms, clothing, horses or carriages and their accessories,

7
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

grains, liquids and merchandise, or other thing which do no have as 6. Disponendi


their principal object the furnishing or ornamenting of a building, 7. Vindicandi
except where from the context of the law, or of the individual
declaration, the contrary clearly appears. Right to possess or jus possidendi
right to hold a thing or enjoy a right (Art 523)
TITLE II OWNERSHIP may be exercised in ones own name or in that of another
CHAPTER ONE: OWNERSHIP IN GENERAL 1. Right to use not necessarily included
May be in the concept of an owner or a mere holder with the
Art 427 Ownership may be exercise over things or rights ownership pertaining to another
Right to possess does not always include the right to use
Ownership is the 2. Judgment of ownership may not include possession
Independent right of a person to the exclusive enjoyment and control of Person may be declared owner but he may not be entitled to
a thing possession which may be in the hands of another such as a tenant
Including its disposition and recovery subject only to the But! This doctrine may be invoked only where the actual possessor
restrictions or limitations established by law and the rights of has some rights which must be respected
others 3. Where claim to possession based on claim of ownership
Where the ownership of a property was decided in a judgment, the
Beneficial Ownership delivery of possession should be considered included in the
Ownership recognized by law and capable of being enforced in court decision where the defeated partys claim to the possession is
Right to enjoyment in one person, legal title is in another based on his claim of ownership
4. Duty of vendor to deliver possession of thing sold
Naked Ownership Contract of sale, vendor bound not only to transfer ownership, but
Enjoyment of all the benefits and privileges of ownership also deliver
Considered delivered only when vendee has control and
Ownership may be exercised over things or rights possession
1. Thing usually refers to corporeal property
2. Rights whether real or personal, res of rights may be corporeal or Right to use and enjoy or jus utendi
incorporeal necessarily includes the right to transform and the right to exclude any
person from the enjoyment and disposal thereof
Art 428 The owner has the right to enjoy and dispose of a thing, he may use such force as may be reasonably necessary to repel or
without other limitations than those established by law. prevent an actual or threatened unlawful physical invasion or usurpation
The owner has also a right of action against the holder and possessor (Art 429)
of a thing in order to recover it. he may enclose or fence his property (Art 430)
limited because he cannot make use of such property in a manner to
The seven jus-es injure the rights of a third person
1. Possidendi
2. Utendi Right to receive the fruits and accessories or jus fruendi and accessionis
3. Fruendi ownership gives the right by accession to everything which is produced
4. Accessionis thereby (see art 440)
5. Abutendi

8
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Right to consume or jus abutendi Requisites:


right of the owner to consume a thing by its use the use that i. Instituted by person deprived of possession
extinguishes ii. Unlawful deprivation of the possession of any land or
building, by force, intimidation, threat, strategy or
Right to dispose or alienate or jus disponendi stealth
either totally (sale or donation) or partially (pledge, mortgage, etc) iii. Filed within 1 year from date of actual entry (but for
includes right not to dispose cases of stealth and strategy, from date of knowledge
duty of vendor to transfer ownership of actual knowledge)
o vendor must be the owner or authorized to sell thing iv. At the MTC where property is located
o sufficient that he be the owner at the time of the delivery of the
thing sold Unlawful detainer
only the absolute owner can pledge or mortgage ones property Requisites:
i. Instituted by landlord, vendor, vendee or other person
Right to recover possession and/or ownership or jus vindicandi against who the possession of any land or building is
unlawfully withheld
true owner must resort to judicial process for the recovery of the
ii. Unlawful possession after the expiration or
property
termination of the right to hold possession (by virtue
he cannot take the law into his own hands
of contract, etc)
iii. Filed within 1 year from date of last demand to vacate
Actions available to recover possession and/or ownership iv. at the MTC where property is located
For unlawful detainer, it is essential that the plaintiffs supposed acts of
1. Recovery of personal property: Remedy of Replevin or manual delivery
tolerance must have been present right from the start of the possession
of personal property
which is later sought to be recovered (Valdez, jr v CA)
Requisites (Rule 60, Rules of Court):
Only issue involved in both is mere physical or material possession
Applicant must show by his own affidavit or that of some other person
who personally knows the facts: (possession de facto), not juridical or civil possession (possession de
i. That the applicant is the owner of the property jure)
claimed, particularly describing it, OR is entitled to the Plaintiff need only to allege and prove prior possession de facto and
possession thereof undue deprivation thereof
ii. That the property is wrongfully detained by the Its a quieting process
adverse party, alleging the cause of detention thereof Summary in nature (to solve the problem quickly and to protect the
according to the best of his knowledge, information rights of the possessor)
and belief Difference between the two is the time when possession became
Applicant has burden of proving his ownership or right of unlawful forcible entry: time of entry; unlawful detainer: possession at
possession over the property in question first was legal, then became illegal
Both a principal remedy (regain possession) and a provisional If complaint fails to aver facts constitutive of forcible entry or unlawful
remedy (allow the plaintiff to retain the thing wrongfully detainer as when it does not state how entry was effected or how and
detained by another pendente lite) when the dispossession started, the remedy should either be accion
2. Recovery of real property: publiciana or an accion reinvindicatoria (Valdez, jr v CA)
Forcible entry and unlawful detainer (accion interdictal) o Must be apparent in the face of the complaint (Sarmiento v
Forcible entry CA)
Jurisdictional facts what does a plaintiff have to allege?

9
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

o For unlawful detainer Requisites:


i. Plaintiffs right over property (describing the property) i. Must be within a period of ten years otherwise the real
ii. Prior lawful possession right of possession is lost
i. If by tolerance, acts of tolerance must have been ii. One who claims to have a better right must prove not only
present right from the start of the possession his right but also the identity of the property claimed
ii. If by lease, contractual agreement must be shown iii. Filed in the RTC where the property is located
iii. Became unlawful (by termination of lease contract or non- Issue involved is possession de jure of realty independently of title (as
payment of rents) compared to interdictal, possession de facto)
iv. Extrajudicial demand to vacate Judgment rendered here is conclusive only on the question of
i. If by non-payment, demand letter to PAY RENTS and possession, not that of ownership
VACATE premises (bar question) Jurisdictional facts?
v. Within one year from last demand 1. Right of plaintiff over property
2. Period to bring interdictal has expired
Can the MTC rule on the issue of ownership in an ejectment case? Yes! 3. Dont know na.
But only provisionally.
The primal rule is that the principal issue must be that of Action to recover possession based on ownership (accion reivindicatoria)
possession, and that ownership is merely ancillary, in which case Requisites:
the issue of ownership may be resolved but only for the purpose of i. Right of plaintiff over property
determining the issue of possession. ii. Filed at the RTC where the property is located
It must sufficiently appear from the allegations in the complaint that
what the plaintiff really and primarily seeks is the restoration of Seeks recovery of possession based on ownership, with claim of title
possession. Issue involved is ownership which ordinarily includes possession,
Inferior court cannot adjudicate on the nature of ownership where although a person may be declared owner but he may not be entitled to
the relationship of lessor and lessee has been sufficiently possession because the possessor has some rights which must be
established in the ejectment case, unless it is sufficiently respected
established that there has been a subsequent change in or Action for reconveyance prescribes in 10 years from the point of the
termination of the relationship between the parties. registration of the deed or the date of issuance of the certificate of title
The rule in forcible entry cases, but not in those for unlawful (check book!); 4 years in cases of fraud counted therefrom on date of
detainer, is that a party who can prove prior possession can recover issuance of the certificate of title over the property
such possession even against the owner himself. He has the o Action for reconveyance based on fraud and where plaintiff is
security that entitles him to remain on the property until he is in possession of the property subject of the acts does not
lawfully ejected by a person having a better right through an accion prescribe. (Leyson v Bontuyan)
publiciana or accion reinvindicatoria o NB: Should not have passed to a third person.
Where the question of how has prior possession hinges on the
question of who the real owner of the disputed portion is, the All three actions are actions in personam.
inferior court may resolve the issue of ownership and make a
declaration as to the owner. But, it is merely provisional, and does Injunction as a remedy for recovery of possession
not bar nor prejudice an action between the same parties involving Injunction is a judicial process whereby a person is required to do or
the title to the land. (Asis v Asis Vda de Guevarra, 2008) refrain from doing a particular thing.

Plenary action to recover possession (accion publiciana)

10
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

General rule: Court should not by means of a preliminary injunction Where the actual possessor of the property who is admittedly the
transfer property in litigation from the possession of one party to owner, seeks protection from repeated or further intrusions into his
another. property.
In order that a preliminary injunction may be granted at any time after o Even if it turns out that he isnt the owner, he may still avail of
the commencement of the action and before judgment: the equitable remedy of injunction to protect his possession.
Requisites: When there is a clear finding of right of ownership and possession of a
i. there must exist a clear and positive right over the land in favor of the party who claims the subject property in possession
property in question which should be judicially protected of another is the undisputed owner as where the property is covered by
through the writ; and a Torrens title pointing to the party as the owner. (Of course, check the
ii. the acts against which the injunction is to be directed are issuance of the title if it was in bad faith)
violative of such right When urgency, expediency and necessity require immediate possession
What if there is someone actually possessing the property sought to as where material and irreparable injury will be done which cannot be
recover? compensated by damages.
o Person not ordinarily allowed to avail of remedy of preliminary
preventive or mandatory injunction but must bring the Writ of possession as a remedy
necessary action for the recovery of possession. Writ of possession is an order whereby a sheriff is commanded to place
Injunctive relief will not be granted to take property out of the a person in possession of a real or personal property, such as when a
possession or control of one party and place it in that of another whose property is extrajudicially foreclosed.
title Improper to eject another from possession, unless sought in connection
o Has not been clearly established, or with a:
o Who did not have such possession or control at the inception 1. Land registration proceeding
of the case 2. Foreclosure of mortgage, provided, that no third person has
Proper function is to maintain the status quo intervened (PNB v CA in this case, a third person was
Injunction cannot be a substitute for other suits for recovery of occupying the lot subject to the writ. The SC held that the an
possession, hence, its denial will not bar the institution of the more ex-parte petition for issuance of a possessory writ is not the
appropriate remedy judicial process referred to in Art 433);
Why? Well, a writ of injunction is an equitable relief; determination of 3. Execution sales
title is a legal remedy thats why
Limitations on the right of ownership
When can injunction be allowed? Limited by
In actions for forcible entry, the dispossessed plaintiff may file, within ten 1. by the States power to tax, police power, and eminent domain
days from filing of the complaint, a motion for a writ of preliminary 2. those imposed by law such as legal easement
mandatory injunction to restore him in possession. 3. those imposed by the owner himself, such as voluntary
o The court MAY grant In order to prevent the defendant from easement
4. those imposed by the grantor of the property on the grantee
committing further acts of dispossession during the pendency
5. those arising from conflicts of private rights which take place in
of the case
accession continua
o Issue of ownership may not be put in issue
6. prohibition against the acquisition of private lands by aliens
Ejectment cases where the appeal is taken, the lessor is given the same
remedy granted above. Art 429 The owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal thereof. For this

11
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

purpose, he may use such force as ay be reasonably necessary to ii. imminent danger or threatening damage must be much greater
repel or prevent an actual or threatened unlawful physical invasion or than the damage arising to the owner of the property
usurpation of his property.
Art 433 Actual possession under claim of ownership raises a
Principle of self-help disputable presumption of ownership. The true owner must resort to
Requisites: judicial process for the recovery of the property.
i. Person defending must be the owner or lawful possessor
ii. Use of reasonable force Applies to both immovable and movable property
iii. Only be exercised at the time of an actual or threatened Requisites to raise the disputable presumption of ownership:
dispossession (no delay) i. Actual (physical or material) possession of the property
iv. Actual or threatened physical invasion or usurpation which is ii. Possession must be under claim of ownership
unlawful
Judicial process contemplated
Read with Art 19 of the Civil Code. Means ejectment suit or reinvidicatory action
Ex-parte petition for issuance of a possessory writ is not a judicial
Art 430 Every owner may enclose or fence his land or tenements by process, as it is non-litigious (PNB v CA)
means of walls, ditches, live or dead hedges, or by any other means
without detriment to servitudes constituted thereon. Art 434 In an action to recover, the property must be identified, and the
plaintiff must rely on the strength of his title and not on the weakness
Right to enclose or fence of the defendants claim.
Limited by existing servitudes imposed on the land or tenement
Requisites:
Art 431 The owner of a thing cannot make use thereof in such manner i. Person who claims that he has a better right to the property must
as to injure the rights of a third person. satisfactorily prove both ownership and identity
ii. Burden of proof lies on the party who substantially asserts the
Art 432 The owner of a thing has no right to prohibit the interference of affirmative of an issue
another with the same, if the interference is necessary to avert an iii. Reliance on strength of evidence and not upon the weakness of the
imminent danger and the threatened damage, compared to the damage opposing party
arising to the owner from the from the interference, is much greater.
The owner may demand from the person benefited indemnity for the Party who desires to recover must fix the identity of the land claimed by
damage to him. describing the location, area and boundaries thereof
o If a party fails to identify sufficiently and satisfactorily the land
State of necessity which he claims as his own, his action must necessarily fail
General rule: a person cannot interfere with the right of ownership of another o While the identity of the property must be established, it is not
Exception: State of necessity, but of course, civil indemnification can be necessary for the plaintiff to establish the precise location and
asked for extent of the lands claimed or occupied by the defendant
General rule: where there is a conflict between the area and boundaries
Requisites: of a land, the latter prevails.
i. interference is necessary to avert an imminent danger and the o An area delimited by boundaries properly identifies a parcel of
threatened damage to actor or a third person (but the damage
land
must be proportionate and reasonable)

12
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Exception: where the boundaries relied upon do not identify the iii. Owner paid just compensation
land beyond doubt iv. Requirement of due process of law must be observed
o In such cases where there appears to be an overlapping of
boundaries, the actual size of the property gains importance. Should the requirements be not first complied with, restore the property to
his possession.
Equiponderance of evidence? Rule for defendant. But can be lost by estoppel or acquiescence

Evidence to prove ownership Art 436 When any property is condemned or seized by competent
1. A Torrens title authority in the interest of health, safety or security, the owner thereof
2. Title from the Spanish government shall not be entitled to compensation, unless he can show that such
3. Patent duly registered in the Registry of Property condemnation or seizure is unjustified.
4. Deed of sale
5. Operating a business for nine years in defendants own name, without Condemnation or seizure of property in exercise of police power
protest of plaintiff Relates to use and enjoyment not ownership of property
6. Occupation of a building for a long time without payment of rent No taking of property involved
7. Letter in which defendant recognized the ownership of the property by Persons affected not entitled to financial compensation
the plaintiff (estoppel)
8. Open, continuous, exclusive, adverse and notorious actual possession Art 437 The owner of a parcel of land is the owner of its surface and of
and occupation of parcels of land everything under it, and he can construct thereon any works or make
any plantations and excavations which he may deem proper, without
Indicia of claim of ownership detriment to servitudes and subject to special laws and ordinances. He
1. Tax declarations and tax receipts only prima facie evidence of cannot complain of the reasonable requirements of aerial navigation.
ownership or possession; but they are good indicia of possession in the
concept of owner Surface rights of a landowner
Right of the owner of a parcel of land to construct any works or make any
Conclusiveness of certificates of title plantations and excavations on his land is subject to: (SLERRt)
Indicates true and legal ownership of a private land and should be 1. Special laws
accorded great weight as against tax declarations 2. Local ordinances
o but is not conclusive if the land had already been previously 3. Existing servitudes or easements
registered 4. Reasonable requirements of aerial navigation
5. Rights of third persons
Art 435 No person shall be deprived of the property except by
competent authority and for public use and always upon payment of Limitations imposed by special laws
just compensation. Includes the regalian doctrine
Should this requirement be not first complied with, the courts shall Ownership of said land does not give him the right to extract or utilize
protect, and in a proper case, restore the owner in his possession. the said minerals without the permission of the State to which said
minerals belong
Power of eminent domain o For the loss sustained by such owner, he is entitled to just
Requisites: compensation under mining laws or expropriation proceedings
i. Taking must be done by competent authority
ii. Must be for public use

13
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Art 438 Hidden treasure belongs to the owner of the land, building, or improvements upon a thing the principal for the latters
other property on which it is found. includes building, planting and embellishment, better use or
Nevertheless, when the discovery is made on the property of sowing completion
another, or of the state or any of its sub-divisions, and by chance, one- alluvion, avulsion, change of necessary to principal thing
half thereof shall be allowed to the finder. If the finder is a trespasser, course of rivers, formation of
eh shall not be entitled to any share of the treasure. islands example: key of a house, bow of a
If the things found be of interest to science or the arts, the not necessary to the principal violin
State may acquire them at their just price, which shall be divided in thing
conformity with the rule stated.

Art 439 By treasure is understood, for legal purposes, any hidden and Accession, not a mode of acquiring ownership
unknown deposit of money, jewelry, or other precious objects, the Merely a consequence of ownership
lawful ownership of which does not appear. Exercise of the right of ownership
Since the law itself gives the right, accession may, IN A SENSE, be
Requisites:
considered as a mode of acquiring property under the law
i. Deposit of money, jewelry or other precious objects
ii. Hidden and unknown
Kinds of accession
iii. Lawful ownership of which does not appear
1. Accession discreta
Extension of the right of ownership of a person to the products of a
thing which belongs to such a person
CHAPTER TWO: RIGHT OF ACCESSION Includes natural, industrial, and civil fruits (Art 441)
GENERAL PROVISIONS 2. Accession continua
SECTION I RIGHT OF ACCESSION WITH RESPECT TO Extension of the right of ownership to that which is incorporated or
WHAT IS PRODUCED BY PROPERTY attached to a thing which belongs to such person
May take place:
Art 440 The ownership of property gives the right by accession to With respect to real property
everything which is produced thereby, or which is incorporated or Accession industrial (building, planting, sowing); or
attached thereto, either naturally or artificially. Accession natural (alluvion, avulsion, change of river
course, and formation of islands)
Accession defined With respect to personal property
Accession is the right of the owner of a thing, real or personal, to become Conjunction (attachment, engraftment)
the owner of everything which is: Commixtion or confusion
1. produced thereby, Specification
2. incorporated
3. attached thereto, Art 441 To the owner belongs:
either naturally or artificially. The natural fruits;
The industrial fruits;
Accession Accessory
The civil fruits.
fruits of, additions to, things joined to, included with Art 441 refers to accession discreta

14
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

1. Rents of buildings
Right of owner to the fruits 2. Prices of leases (rents) of lands and other property (including movables)
General rule: All fruits belong to the owner of a thing. 3. Amount of perpetual or life annuities or other similar income
Exception: A person, other than the owner of a property, owns the fruits
thereof: Art 443 He who receives the fruits has the obligation to pay the
1. possession in good faith by another (possessor entitled to the fruits expenses made by a third person in their production, gathering, and
received before possession is legally interrupted) preservation.
2. usufruct (usufructuary entitled to all the fruits of the property on usufruct)
3. lease of rural lands (lessee gets fruits, lessor gets rents) Art 443 applies when:
4. pledge (pledgee gets fruits, etc but with the obligation to compensate 1. Owner of property recovers the property from a possessor and the
what he receives with those which are owing him) possessor has not yet received the fruits although they may have
5. antichresis (creditor acquires the fruits of his debtors immovable, but already been gathered or harvested; or
with the obligation to apply them first to the interest and then to the 2. The possessor has already received the fruits but is ordered to
principal amount of the credit) return the same to the owner

Art 442 Natural fruits are the spontaneous products of the soil, and the In both cases, the owner is obliged to reimburse the previous possessor for
young and other products of animals. the expenses incurred by the latter.
Industrial fruits are those produced by lands of any kind
through cultivation or labor. What if the possessor is in bad faith?
Civil fruits are the rents of buildings, the price of leases of The owner cannot excuse himself from his obligation by alleging bad
lands and other property and the amount of perpetual or life annuities faith on the part of the possessor because the law makes no distinction
or other similar income.
When does good faith/bad faith come into play?
Natural fruits When the goods have yet to be gathered.
Two kinds: Under 449, a BPS in bad faith has no right of reimbursement for
1. Spontaneous products of the soil (not through human cultivation or expenses, nor to the fruits. Only for the necessary expenses of
labor), and preservation of land.
2. Young and other products of animals (chicks, eggs, wool, milk)
What if the expenses exceed the fruits?
The second kind is considered as natural fruits whatever care or The owner must pay the expenses just the same because the law
management, scientific or otherwise, may have been given by man makes no distinction
since the law makes no distinction. But keep in mind that the owner only pays for the expenses for
Puppies, while cute, bred by a professional breeder are still production, gathering and preservation not improvement.
natural fruits
Art 444 Only such as are manifest or born are considered as natural or
Industrial fruits industrial fruits.
Those products which are borne through the cultivation or labor of With respect to animals, it is sufficient that they are in the
humans womb of the mother, although unborn.
Usually cultivated for a purpose
When natural fruits and industrial fruits deemed to exist
Civil fruits

15
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

1. Plants which produce only one crop and then perish (rice, corn, sugar): Exception: Art 120 of the Family Code
from the time the seedlings appear from the ground
2. Plants and trees which live for years and give periodic fruits (mangoes, Definitions:
oranges, epols): deemed existing until they actually appear on the 1. Building generic term for all architectural work with roof built for the
plants or trees purpose of being used as mans dwelling, or for offices, clubs, theaters,
3. Animals: beginning of the maximum ordinary period of gestation (when etc.
there can be no doubt that they are already in the womb of the mum) 2. Repairs putting of something back into the condition in which it was
4. Fowls: the fact of appearance of chicks should retroact to the beginning originally in (not an improvement)
of incubation
Art 445 Whatever is built, planted or sown on the land of another and
the improvements or repairs made thereon, belong to the owner of the
SECTION II RIGHT OF ACCESSION WITH RESPECT TO land, subject to the provisions of the following articles.
IMMOVABLE PROPERTY Owner of land must be known for this article to apply
Section 2 deals with one kind of accession continua, that of immovables. It Art 446 All works, sowing, and planting are presumed made by the
comprehends accession industrial (445-456) and accession natural (457- owner and at his expense, unless the contrary is proved.
465).
Certain basic principles must be kept in mind: Disputable presumptions as to improvements:
1. Accession follows the principal 1. The works, sowing, and planting were made by the owner. and
Owner of the principal acquires the ownership of the accession 2. They were made at the owners expense.
2. Incorporation or union must be intimate
Removal or separation cannot be effected without substantial injury He who alleges the contrary of these presumptions has the burden of proof.
to either or both
3. Effect of good faith and bad faith Art 447 The owner of the land who makes thereon, personally or
Good faith exonerates a person from punitive liability but bad faith through another, paintings, constructions or works with the materials
may give rise to dire consequences of another, shall pay their value; and if he acted in bad faith, he shall
General rule: person who acts in bad faith has no rights also be obliged to the reparation of damages. The owner of the
Exception: person who is in good faith or bad faith is entitled to materials shall have the right to remove them only incase he can do so
reimbursement for necessary expenses or preservation (452) as without injury to the work constructed, or without the plantings,
well as expenses for cultivation, gathering and preservation (443) constructions or works being destroyed. However, if the landowner
4. Effect of both parties in bad faith acted in bad faith, the owner of the materials may remove them in any
Bad faith of one neutralizes bad faith of the other event, with a right to be indemnified for damages.
Neither party may demand as a matter of right the removal of the
improvements against the will of the other for such right is available Applies when the owner of the property uses the materials of another.
only to a party in good faith where the other is in bad faith
5. Unjust enrichment Landowner-Builder/Planter/Sower Owner of Materials
Good faith Good faith
General rule on accession industrial LO-BPS can acquire the materials Entitled to full payment for value of
Art 445 and 446 give the general rule that the accessory follows the provided there is full payment materials, or
principal. May remove materials provided

16
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

there is no substantial injury to work Art 451 In case of the two preceding articles, the landowner is entitled
done to damages from the builder, planter or sower.
Bad faith Good faith
Acquire the materials provided he Entitled to full payment for value of Art 452 The builder, planter or sower in bad faith is entitled to
pays full payment plus damages materials plus damages, or reimbursement for the necessary expenses of preservation of the land.
Remove materials even if there will
be substantial injury to work done Art 453 If there was bad faith, not only on the part of the person who
plus damages built, planted or sowed on the land of another, but also on the part of
Good faith Bad faith the owner of such land, the rights of one and the other shall be the
Acquire materials without paying for Loses materials without indemnity same as though both had acted in bad faith.
the value thereof and entitled to and will be liable for damages due to It is understood that there is bad faith on the part of the
damages due to defects or inferior defects or inferior quality of materials landowner whenever the act was done with his knowledge and without
quality of materials opposition on his part.
Bad faith Bad faith
Same as when both are in good Art 454 When the landowner acted in bad faith and the builder, planter
faith. or sower proceeded in good faith, the provisions of article 447 shall
apply.

Art 448 The owner of the land on which anything has been built, sown Whats good faith?
or planted in good faith, shall have the right to appropriate as his own Consists in the:
the works, sowing or planting, after payment of the indemnity provided 1. Honest belief that the land he is building, planting, sowing on is his or
for in articles 546 and 548, or to oblige the one who built or planted to that by some title, he has a right to build, plant, sow on it; and
pay the price of the land, and the one who sowed, the proper rent. 2. Ignorance of any defect or flaw in his title
However, the builder or planter cannot be obliged to buy the land if its
value is considerably more than that that of the building or trees. In Abrenica definition: State of mind at the time he built the improvements
such case, he shall pay reasonable rent, if the owner of the land does (Pleasantville case)
not choose to appropriate the building or trees after proper indemnity.
The parties shall agree upon the terms of the lease and in case of Usually, it applies to building, planting, sowing in the concept of ownership.
disagreement, the court shall fix the terms thereof. But the Supreme Court has expanded its coverage to
1. Cases wherein a builder had constructed improvements with the
Art 449 He who builds, plants or sows in bad faith on the land of consent of the owner
another, loses what is built, planted or sown without right to indemnity. 2. Builders in good faith who relied on the consent of another whom they
have mistakenly believed to be the owner of the land
Art 450 The owner of the land on which anything has been built, 3. To children who built improvement on a land belonging to their parents
planted or sown in bad faith may demand the demolition of the work, or with their parents consent (Macasaet case)
that the planting or sowing be removed, in order to replace things in
their former condition at the expense of the person who built, planted
or sowed; or he may compel the builder or planter to pay the price of Landowner Builder/planter/sower
the land, and the sower the proper rent. Good faith Good faith
Option 1: Purchase whatever has Receive indemnity for necessary,
been built, planted, or sown after useful and luxurious expenses

17
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

paying indemnity which includes (depends on landowner) with right of Option 1: To acquire whatever has Loses whatever has been built,
necessary, useful and luxurious retention over the land without been built, planted or sown without planted or sown without indemnity
expenses (if he wishes to obligation to pay rent until full paying indemnity except necessary and liable to pay damages
appropriate the luxurious expenses) payment of indemnity expenses for preservation of land
and luxurious expenses (should LO Entitled to reimbursement for
Prohibited from offsetting or Remove useful improvement want to acquire luxurious necessary expenses for preservation
compensating the necessary and provided it does not cause any injury improvement) plus damages of land but no right to retention
useful expense with the fruits (part of right of retention)
received by the BP in good faith Entitled to reimbursement for useful
(Nuguid case) If LO does not appropriate luxurious expenses but cannot remove useful
improvements, BPS can remove the improvements even if removal will
same provided there is no injury to not cause injury
the principal thing (land or building)
Not entitled to luxurious expenses
Right of retention only applies when except when LO wants to acquire
LO chooses to appropriate (but does (value of which will be the one at the
not apply if property of public time LO enters into possession)
dominion)
Option 2: To oblige the BP to buy the To purchase land at fair market value Entitled to remove luxurious
land or the S to pay the proper rent at time of payment when value is not improvements if it will not cause
unless the value of the land is considerably more than that of the injury and LO does not want to
considerably more than that of the building or trees acquire them
building or trees Option 2: To oblige BP to buy land or Obliged to pay for land or proper rent
To pay rent until the purchase has S to pay proper rent plus damages and pay damages
been made (Technogas case) Option 3: To compel BPS to remove Obliged to remove or demolish work
or demolish work done plus done at his expense and pay
If BPS cannot pay purchase price of damages damages
the land, LO can require BPS to Bad Faith Good Faith
remove whatever has been built, Acquire whatever has been built, If LO acquires whatever has been
planted, or sown. planted or sown by paying indemnity built, planted or sown, BPS must be
plus damages indemnified the value thereof plus
If the value of the land is damages
considerably more than that of the
building or trees, BPS cannot be If LO does not acquire, BPS cannot
compelled to buy the land. In such insist on purchasing land
case, BPS will pay reasonable rent if
LO does not choose option 1. BPS can remove whatever has been
built, planted or sown regardless of
If BPS cannot pay the rent, LO can whether or not it will cause injury and
eject BPS from the land. will be entitled to damages
Good faith Bad Faith Bad Faith Bad Faith

18
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Both in good faith Art 455 If the materials, plants or seeds belong to a third person who
has not acted in bad faith, the owner of the land shall answer
subsidiarily for their value and only in the event that the one who made
Necessary expenses use of them has no property with which to pay.
Made for the preservation of the thing, or This provision shall not apply if the owner makes use of the
Those which seek to prevent the waste, deterioration, or loss of the right granted by Article 450. If the owner of the materials, plants or
thing seeds has been paid by the builder, planter or sower, the latter may
demand from the land-owner the value of the materials and labor.

Useful expenses Landowner Builder/Planter/Sower Owner of the Materials


Expenses which add value to a thing or Good Faith Good Faith Good Faith
Augment is income Option 1: To acquire To receive indemnity To receive indemnity
whatever has been from LO with right of from BPS who is
built, planted or sown retention over land until primarily liable for
When does good faith cease? provided there is full payment materials; if BPS is
From the moment defects in the title are made known to the possessor payment of indemnity insolvent, to proceed
by extraneous evidence or by suit for recovery of the property by the (which includes value against LO who is
true owner of what has been built, subsidiarily liable with
planter or sown plus no right of retention
What happens if good faith ceases? (Rosales case) value of materials
LO can acquire improvements built PRIOR to the notice to BPS (when used)
good faith ceased), and indemnify BPS of current market value at time Option 2: To oblige BP To buy land or to pay To receive indemnity
of payment to buy land or S to pay proper rent from BPS only (LO is
LO entitled to rent from the time BPS good faith ceased rent unless value of not subsidiarily liable)
land is considerably with right of retention
When will these rules not apply? more than that of until full payment; or
1. When other provisions of law govern (agency, co-ownership, lease, building or trees
usufruct) To remove materials if
2. Improvement constructed on ones own land subsequently sold (person there will be no injury
constructs a house on his own land and later sold land to another) on building or trees and
But, the provision on indemnity in 448 may be applied by analogy will have material lien
where the owner-builder later lost ownership of the land by virtue of against BPS for
a court judgment, considering that the primary intent of 448 is to payment of materials
avoid a state of forced co-ownership especially where the parties in Good Faith Good Faith Bad Faith
the main agree that 448 and 546 are applicable and indemnity for Same Whatever is the choice
the improvements may be paid although they differ as to basis of of LO, the OM:
the indemnity - whut?! (Pecson v CA) 1. loses the materials in
3. Builder is a belligerent occupant favor of the BPS and
4. Constructions not in the nature of buildings 2. will have no right to
5. Property of public domain receive indemnity from
BPS nor LO

19
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Good Faith Bad Faith Bad Faith LO (who ends up


Option 1: To acquire BPS loses what has (Since both BPS and owning buildings or
whatever has been been built, planted or OM are in bad faith, trees)
built, planted or sown sown plus liable for treat them both as if
without paying damages but is entitled they are in good faith.) Art 456 In the cases regulated in the preceding articles, good faith does
indemnity except for to be indemnified for not necessarily exclude negligence, which gives right to damages
necessary expenses necessary expenses Whatever is the choice under article 2176.
for preservation of land and luxurious expenses of the LO, OM has right
and luxurious expenses (should LO want to to receive indemnity for Art 457 To the owners of the lands adjoining the banks of rivers belong
(should LO want to acquire luxurious value of materials from the accretion which they gradually receive from the effects of the
acquire luxurious improvements) and has BPS only (LO has no current of the waters.
improvements) plus no right of removal subsidiary liability for
damages even if removal will not value of materials Article treats of alluvion, a form of accession natural.
cause damage because OM is
considered in good Alluvion is
faith only insofar as Accretion which the banks of rivers gradually receive from the effects of
BPS is concerned) the current of the waters and
Which belong to the owners of lands adjoining the said banks
OM has no right to
remove materials even Riparian owners are owners of lands adjoining the banks of rivers.
if there will be no injury Littoral owners are the owners of lands bordering the shore of the sea or
or damage lake or other tidal waters
Option 2: To oblige BP To buy the land or pay OM has right of
to buy the land or S to proper rent and liable removal provided there Distinguished from accretion
pay proper rent plus to pay damages to LO will be no injury or Alluvion is applied to the deposit of soil or to the soil itself
damages damage Accretion is the act or process by which a riparian land gradually and
Option 3: To oblige BP To demolish or remove Liable to pay damages imperceptively receives addition made by the water to which the land is
to demolish or remove what has been built, due to defects or contiguous
what has been built, planted or sown and inferior quality of
planted or sown plus liable for damages materials Requisites
damages i. Deposit or accumulation of soil or sediment must be gradual and
Bad Faith Good Faith Good Faith imperceptive
To acquire what has To receive indemnity TO receive indemnity of ii. Accretion results from the effects or action of the current of waters of
been built, planted or from LO plus damages materials principally the river (exclusive work of nature)
sown by paying from BPS and in case iii. Land where accretion takes place must be adjacent to the bank of a
indemnity plus liable to BPS is insolvent, river
pay damages subsidiarily from LO
Bad Faith Good Faith Bad Faith Instances when alluvion DOES NOT take place
Same Same No right to receive 1. Accretion because of sudden and forceful action like that of flooding
indemnity for value of 2. Accretion caused by human intervention (would still be part of public
materials from BPS nor domain Vda de Nazerno v CA)

20
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

3. Accretion caused by action of Manila Bay (since Manila Bay is not a Art 458 The owners of estates adjoining ponds or lagoons do not
river, its part of the sea) acquire the land left dry by the natural decrease of the waters, or lost
4. Accretion on the bank of a lake (like Laguna de Bay) have been held to that inundated by them in extraordinary floods.
belong to the owners of the lands to which they are added Refers only to ponds and lagoons
o No application when the estate adjoins a creek, stream, river or
Elements of river and their ownership lake
A river is a compound concept consisting of three elements: o For purposes of alluvion, lakes are of the same category of
1. Running waters creeks, streams and rivers
2. The bed Pond
3. The banks o a body of stagnant water without an outlet
o larger than a puddle and smaller than a lake
Since a river is a compound concept, it should have only one nature it Lagoon
should either be totally public or completely private. And since rivers, o small lake, ordinarily of fresh water,
whether navigable or not, are of public dominion (Art 420), it is implicit
o and not very deep, fed by floods
that all the three component elements be the same nature also.
o the hollow bed of which is bounded by elevations of land
Reasons for alluvion Lake
1. Compensate the riparian owner for the danger of loss that he o Body of water formed in depressions of the earth
suffers because of the location of his land o Ordinarily fresh water
2. Compensate him for the encumbrances and various kinds of o Coming from rivers, brooks or springs
easements to which his property is subject o Connected with the sea by them
3. Promote the interests of agriculture for the riparian owner it in the o Hence, Laguna de Bay is a lake
best position to utilize the accretion

Accretions affecting lands registered under the Torrens system Art 459 Whenever the current of a river, creek or torrent segregates
In case of diminution of area from an estate on its bank a known portion of land and transfers it to
Registration does not protect the riparian owner against diminution of another estate, the owner of the land to which the segregated portion
the area of his land through gradual changes in the course of the belonged retains the ownership of it, provided that he removes the
adjoining stream same within two years.
Accretions which the banks of rivers may gradually receive from the
effect of the current become the property of the owners of the banks Avulsion is
In case of increase of area Also known as force of river
Although alluvion is automatically owned by the riparian owner, it does Defined as the accretion which takes place when the current of a river,
not automatically become registered land, just because the lot which creek or torrent segregates from an estate on its bank a known portion
receives such accretion is covered by a Torrens title and transfers it to another estate
So, alluvial deposit acquired by a riparian owner of registered land by In which case, the owner of the estate to which the segregated portion
accretion may be subjected to acquisition through prescription by a third belonged, retains the ownership thereof
person, by failure of such owner to register such accretion within the Also refers to the segregation or transfer itself of a known portion of land
prescribed period to another by the force of the current

Alluvion Avulsion

21
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Deposit of soil is gradual Deposit is sudden or abrupt


Deposit of soil belongs to the The owner of the property from What if a portion of land is transferred, but not by a current of water, but by a
owner of the property where the which a part was detached landslide?
same was deposited retains the ownership thereof You can apply Art 459, by analogy.
The soil cannot be identified Detached portion can be
identified Remove it within two years
The former owner preservers his ownership of the segregated portion
Where there had been accretions to the land adjacent to the bank of a provided he removes (not merely claims) the same within the period of 2
river, the riparian owner does not lose the ownership of such accretions years
even if they are separated by avulsion from the land by the sudden It would seem that his failure to do so would have the effect of
change of the course of the river automatically transferring ownership over it to the owner of the other
estate
Requisites Law doesnt make a distinction between private land and land of the
i. Segregation and transfer must be caused by the current of a river, public domain
creek or torrent Why two years?
ii. Segregation and transfer must be sudden or abrupt o Segregated portion is usually very small and it is thus useless
iii. Portion of land transported must be known or identifiable to the original owner
o Similar to uprooted trees (but there, 6 months)
Even if the detached portion be placed on top of another land instead of o If the owner of the separated portion retains his ownership
being adjoined to it, Art 459 still applies as long as it can be identified as without any qualification, he would have a right to enter the
coming form the estate from which it was detached other estate at any time, which wouldnt be convenient to the
If only soil is removed by water and spread over anothers land such other estate
that no known portion can be said to exist which can be removed, there o After a long period, the detached potion may become
is no avulsion permanently attached to the new land so itll be hard to remove
Current
o Continuous movement of a body of water, often horizontal, in a Art 460 Trees uprooted and carried away by the current of the waters
certain direction belong to the owner of the land upon which they may be cast, if the
River owners do not claim them within 6 months. If such owners claim them,
o Natural surface stream of water of considerable volume they shall pay the expenses incurred in gathering them or putting them
o Permanent or seasonal flow in a safe place.
o Emptying into an ocean, lake or other body of water
Creek Applies only to uprooted trees
o Small islet extending further into land If a known portion of land with trees standing thereon is carried away by
o Natural stream of water normally smaller than and ofter the current to another land, Art 459 governs
tributary to a river The original owner claiming the trees is liable to pay the expenses
Torrent incurred by the owner of the land upon which they have been cast in
o Violent stream of water gathering them or putting them in a safe place
o A flooded river or one suddenly raised by a heavy rain and Claim must be done in 6 months
o If not, the trees will belong to the owner of the land where the
descending a steep incline
o Raging flood or rushing stream of water trees have been cast to

22
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

o Six months is a condition precedent and not a prescription


period NB: Law speaks of change of river course. If a river simply dries up or
o After a claim is made within 6 months an action may be disappears, the bed left dry will belong to public dominion (Art 502)
brought within the period provided by law for prescription of
movables
Art 462 Whenever a river, changing its course by natural causes, opens
NB: For trees, you need only CLAIM within the period. For land (Art 459), a new bed through a private estate, this bed shall become of public
you have to REMOVE them within 2 years dominion.

NB: This article talks of the new riverbed. Art 461 talked about the old
Art 461 River beds which are abandoned through the natural change in riverbed.
the course of the waters ipso facto belong to the owners whose lands
are occupied by the new course in proportion to the area lost. The bed of a public river or stream is of public ownership (Art 502)
However, the owners of the lands adjoining the old bed shall have the If the river changes its course and opens a new bed, this bed becomes
right to acquire the same by paying the value thereof, which value shall of public dominion even if its on private property
not exceed the value of the area occupied by the new bed. Just as the old had bed had been of public dominion before the
abandonment, the new riverbed shall likewise be of public dominion
River beds abandoned through natural change in the course of waters No distinction whether a river is navigable or floatable or not
They belong to owners occupied by the new course of the river
o In proportion to the area lost (if only one owner lost a portion of Art 463 Whenever a current of a river divides itself into branches,
his land, the entire old bed should belong to him. If more than leaving a piece of land or part thereof isolated, the owner of the land
two, then in proportion to the area lost) retains his ownership. He also retains it if a portion of land is separated
Abandoned? The words may be construed to mean that where there is from the estate by the current.
abandonment by the government over the old bed, the owner of the
invaded land automatically acquires ownership of the same without any NB: This article does not refer to the formation of islands through accretion
formal act on his part. (Remember that rivers are property of public (thats in Art 464 and 465).
dominion)
o The change in the course of the river does not ipso facto result This article refers to the formation of an island caused by a river dividing
in the abandonment of the river but must be the reason for its itself into branches resulting in:
abandonment, in other words, the river is abandoned because 1. The isolation of a piece of land or part thereof, or
of or through the natural change of the water 2. The separation of a portion of land from an estate by the current (see
The owners of land adjoining the old bed are given the preferential right Art 459)
to acquire the old bed by paying the value thereof
o The indemnification shall not exceed the value of the area The owner preserves his ownership of the isolated or separated
occupied by the new bed (in case of disagreement, bring the property
case to court.)
Art 464 Islands which may be formed on the seas within the
Requisites jurisdiction of the Philippines, on lakes, and on navigable or floatable
i. There must be a natural change in the course of the waters of the rivers belong to the State.
river
ii. Change must be abrupt or sudden

23
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Art 465 Islands which through successive accumulation of alluvial o Test: whether it is navigable in fact, if it is used or susceptible
deposits are formed in non-navigable and non-floatable rivers, belong of being used as a highway of commerce, for trade and travel
to the owners of the margins or banks nearest to each of them, or to in the usual and ordinary modes
the owners of both margins if the island is in the middle of the river, in o A navigable river is one that is floatable, that is, a river
which case it shall be divided longitudinally in halves. If a single island admitting floats
thus formed be more distant from one margin than from the other, the i. Hence, a floatable stream is a navigable stream
owner of the nearer margin shall be the sole owner thereof. (Macatangay v Secretary of Public Works in this
case, natangay si Macatangay. Hehehe!)
Rules of ownership of islands form through alluvion
SECTION THREE RIGHT OF ACCESSION WITH
1. An island belongs to the State as part of its patrimonial property if it is
formed:
RESPECT TO MOVABLE PROPERTY
a. On the seas within the jurisdiction of the Philippines
b. On lakes Art 466 Whenever two movable things belonging to different owners
c. On navigable or floatable rivers are, without bad faith, united in such a way that they form a single
object, the owner of the principal thing acquires the accessory,
2. If it is formed in non-navigable and non-floatable rivers: indemnifying the former owner thereof for its value.
a. It belongs to the nearest riparian owner or owner of the margin
or bank nearest to it as he is considered in the best position to Adjunction is
cultivate and develop the island (in other words, sa The union of two movable things belonging to different owners
pinakamalapit na may ari ng lupa) In such a way that they form a single object
b. If it is in the middle of the river, the island is divided But one of the component things preserves its value
longtitudinally in halves
c. If the island formed is longer than the property of the riparian Characteristics of adjunction
owner, the latter is deemed ipso jure to be the owner of that In order that adjunction may take place, it is necessary that:
portion which corresponds to the length of that portion of his 1. There are two movables belonging to different owners
property along the margin of the river 2. They are united in such a way that they form a single object; and
d. If a new island is formed between an existing island and an 3. They are so inseparable that their separation would impair their nature
opposite bank, the owner of the older island is considered a or result in substantial injury to either
riparian owner together with the owner of the land adjoining the
bank for the purpose of determining ownership of the island In determining the right of the parties in adjunction, regard is had only to
the things joined and not to the persons.
o He must of course register the land, else it be subject to But where there is a mere change of form or value which does not
adverse possession of another destroy the identity of the component parts, the original owners may
demand their separation (Art 469)
Navigable river
o One which forms in its ordinary condition by itself or by uniting Kinds of adjunction
with other waters a continuous highway over which commerce 1. inclusion or engraftment (such as when a diamond is set on a gold ring)
is or may be carried on 2. soldering or soldadura (when led is united or fused to an object made of
lead)

24
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

a. ferrumincaion (if both the accessory and principal are of the even though the thing to which is has been incorporated may suffer
same metal) some injury.
b. plumbatura (if they are of different metals)
3. writing or escritua (when a person writes on paper belonging to another) When separation of things united are allowed
4. painting or pintura (when a person pains on canvas of another) 1. Whenever the separation can be done without injury
5. weaving or tejido (when threads belonging to different owners are used 2. When the accessory much more precious, the owner of the accessory
in making textile) may demand its separation even though the principal thing may suffer
Art 467 The principal thing, as between two things incorporated, is some injury
deemed to be that to which the other has been united as an ornament, Owner who made or caused the union or incorporation shall bear
or for its use or perfection. the expenses for separation
3. When principal acted in bad faith, owner of accessory may separate
Art 468 If it cannot be determined by the rule given in the preceding even if the principal thing be destroyed
article which of the two things incorporated is the principal one, the
thing of the greater value shall be so considered, and as between two Art 470 Whenever the owner of the accessory thing has made the
things of equal value, that of greater volume. incorporation in bad faith, he shall lose the thing incorporated and
In painting and sculpture, writings, printed matter, engraving shall have the obligation to indemnify the owner of the principal thing
and lithographs, the board, metal, stone, canvas, paper or parchment for the damages he may have suffered.
shall be deemed the accessory thing. If the one who has acted in bad faith is the owner of the
principal thing, the owner of the accessory thing shall have a right to
Tests to determine the principal in adjunction choose between the former paying him its value or that the thing
In the order of application, the principal is that: belonging to him be separated, even though for this purpose it be
1. To which the other (accessory) has been united as an ornament or necessary to destroy the principal thing; and in both cases,
for its use or perfection. (rule of importance and purpose) furthermore, there shall be indemnity for damages.
2. Of greater value, if they are of unequal values; If either one of the owners has made the incorporation with the
3. Of greater volume, if they are of an equal value; knowledge and without the objection of the other, their respective
4. That of greater merits taking into consideration all the pertinent rights shall be determined as though both acted in good faith.
legal provisions (see Art 475) applicable as well as the comparative
merits, utility and volume of their respective things ADJUNCTION (accessory follows principal)
Rights of Owner of Principal Rights of Owner of Accessory
The special rule regarding paintings, etc is based on the Good Faith Good Faith
consideration that what is painted is of greater value that the board Acquires the accessory, Loses the accessory but has a right
or canvas inasmuch as the exceptions mentioned are specified, its indemnifying the owner of the value to indemnity for the value of the
provision can not be applied by analogy to cases of adjunction of thereof accessory
similar nature which are deemed excluded. (See Art 467 and 468)
Except: When value of accessory is Has a right to demand separation
Art 469 Whenever the things united can be separated without injury, much more precious than the even if it causes injury to the
their respective owners may demand their separation. principal thing (469) principal thing (469)
Nevertheless, in case the thing united for the use,
embellishment or perfect of the other, is much more precious than the Except: When still separable, may May demand separation (469(
principal thing, the owner of the former may demand its separation, demand separation (no adjunction
anyway)

25
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Good faith Bad faith Rules governing mixture (co-ownership)


Acquires the accessory and has a Loses the thing and has liability for 1. If the mixture by will of owners, their rights shall be governed by their
right to indemnity for damages he damages stipulations. In the absence of any stipulation, each owner acquires a
may have suffered right or interest in the mixture in proportion to the value of his materials
Bad faith Good faith as in co-ownership.
Pays for the accessory plus Option 1: Demand the owner of the MIXTURE
damages principal to pay for the value of the Owner who caused mixture Owner of the thing mixed into
accessory plus damages Good faith or by chance Good faith or by chance

Separate thing even if it is destroyed Option 2: Demand separation even if Each owner acquires a right Each owner acquires a right
plus pay damages it causes the destruction of the proportional to the part belonging to proportional to the part belonging to
principal thing plus damages him, bearing in mind the value of the him, bearing in mind the value of the
Bad Faith Bad Faith things mixed or confused things mixed or confused
As if both are in good faith Bad faith Good faith
Loses the thing mixed or confused Acquires the thing mixed plus
Art 471 Whenever the owner of the material employed without his plus liable to pay damages entitled to damages
consent has a right to indemnity, he may demand that this consist in
the delivery of a thing equal in kind and value, and in all other respects,
to that employed, or else in the price thereof, according to expert Art 474 One who in good faith employs the material of another in whole
appraisal. or in part in order to make thing of a different kind, shall appropriate
Art 472 if by the will of their owners two things of the same or different the thing thus transformed as his own, indemnifying the owner of the
kinds are mixed, or if the mixture occurs by chance, and in the latter material for its value.
case the things are not separable without injury, each owner shall If the material is more precious than the transformed thing or
acquire a right proportional to the part belonging to him, bearing in is of more value, its owner, may, at his option, appropriate the new
mind the value of things mixed or confused. thing to himself, after first paying indemnity for the value of the thing,
Art 473 if by the will of only one owner, but in good faith, two things of or demand indemnity for the material.
the same or different kinds are mixed or confused, the rights of the If in the making of the thing bad faith intervened, the owner of
owners shall be determined by the provisions of the preceding article. the material shall have the right to appropriate the work to himself
If by the one who caused the mixture or confusion acted in without paying anything to the maker, or to demand of the latter that he
bad faith, he shall lose the thing belonging to him thus mixed or indemnify him for the value of the material and the damages he may
confused, besides being obliged to pay indemnity for the damages have suffered. However, the owner of the material cannot appropriate
caused to the owner of the thing with which his own was mixed the work in case the value of the latter, for artistic or scientific reasons,
is considerably more than that of the material.
Definition of mixture
Takes place when two or more things belonging to different owners are Definition of specification
mixed or combined Takes place whenever the work of a person is done on the material of
With the respective identities of the component parts destroyed or lost another
Two kinds Such material, in a consequence of the work itself, undergoing a
o Commixtion (for solids) transformation.
o Confusion (for liquids) Imparting of a new form to the material belong to another, or making of
the material of another into a different kind

26
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

o Flour made into bread, grapes into wine, clay into bricks, love Adjunction, mixture and specification distinguished
into hate (joke. Putek, ang boring ng Property. If youve made it Adjunction Mixture Specification
this far, good for you!)
At least two things At least two things May be only one ting
whose form is changed
SPECIFICATION (accessory follows Component parts retain Things mixed may or Component parts retain
principal) or preserve their nature may not retain their or preserve their nature
Owner of material Builder respective original
Good faith Good faith nature
Right to indemnification for the value Shall appropriate the thing thus Accessory follows Co-ownership results Accessory follows
of the material. transformed as his own, principal principal
indemnifying the owner of the
material for its value. CHAPTER THREE: QUIETING OF TITLE
Except: Material more precious than
ART 476 Whenever there is a cloud on title to real property or any
transformed thing.
interest therein, by reason of any instrument, record, claim,
encumbrance or proceeding which is apparently valid or effective but it
Option 1: Appropriate the new thing To be indemnified.
is in truth and in fact invalid, ineffective, voidable or unenforceable,
to himself, indemnifying the builder
and may be prejudicial to said title, an action may be brought to
for his work.
remove such clod or to quiet the title.
An action may also be brought to prevent a cloud from being
Option 2: Demand indemnity for the Appropriate the same after indemnity
cast upon title to real property or any interest therein.
material. for material.
Good faith Bad faith Title to real property refers to that upon which ownership is based.
Option 1: Appropriate the work to Loses his work. No right to Plaintiff in action for quiet title dies, should it be dismissed? No. Its a quasi in
himself without paying indemnity. indemnity. rem suit.
(Damages also?) Defendants defenses: prescription, lack of jurisdiction of court
Except: When for artistic or scientific Pay for the materials and damages. Cloud on title
reasons, the thing has a value Semblance of title, either legal or equitable, or a claim or a right in real
considerably higher than the property, appearing in some legal from, but which is in fact, invalid or
material. The owner of the material which would be inequitable to enforce
cannot appropriate the work.
Requisites
i. Instrument, record, claim, encumbrance or proceeding which is
Option 2: Demand indemnity for Must pay indemnity and damages.
apparently valid or effective,
material plus damages.
ii. Such instrument is in truth and in fact, invalid, ineffective,
voidable or unenforceable, or has been extinguished or
terminated, or has been barred by extinctive prescription
Art 475 In the preceding articles, sentimental value shall be duly
iii. Such instrument may be prejudicial to said title
appreciated.
Action to quiet title

27
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Requisites: partake of the nature of real property (vessels, motor


i. Plaintiff or complainant has a legal or an equitable title to, or vehicles, certificates of stocks), or
interest in the real property subject of the action treated to some extent as realty because of
ii. The deed, claim or proceeding claimed to be casting cloud on registration requirements for ownership or
his title must be shown to be, in fact, invalid or inoperative transactions affecting them (chattel mortgage)
despite its prima facie appearance of validity or legal efficacy
Prescriptibility of action
Action to quiet title Action to remove a cloud on title 1. If plaintiff in possession, it does not prescribe. An action to quiet title
Purpose to put an end to Removal of a possible brought by a person who is in possession of the property is
troublesome litigation in respect foundation for a future hostile imprescriptible.
to the property involved claim 2. If plaintiff not in possession, he must invoke his remedy within the
Remedial action involving a Preventive action to prevent a proper prescriptive period. Ten years if in good faith, 30 years if in bad
present adverse claim future cloud on the title faith.
1st paragraph of Art 476 2nd paragraph of Art 476
Art 477 The plaintiff must have legal or equitable title to, or interest in
the real property which is the subject matter of the action. He need not
An action to quiet title includes an action to remove a cloud of title.
be in possession of said property.
Nature of action
Title and possession of the plaintiff
Quasi in rem
Plaintiff must have a legal or equitable title or an interest in the real
Judgment is conclusive only between the parties
property which is the subject matter of the action
The res, the subject-matter of the controversy, is within the courts o Legal title may consist in full ownership or in naked ownership
jurisdiction, and it is because of that circumstance that the court is able
o If plaintiff has beneficial interest in the property (such as a
to adjudicate
beneficiary in a trust), he has beneficial title
Not essential that the court acquire jurisdiction of the person of the
o Interest in property is any interest short of ownership, like the
defendant
interest of a mortgagee or a usufructuary
Benefits from allowing actions If plaintiff is not in possession, he may also bring one of the three
actions mentioned in addition to the action to quiet title
Task of court is to determine the respective rights of the parties so that
the complainant and those claiming under him may forever free from In order to afford complete relief to the parties in action to quiet title, the
any danger of hostile claim (Rumarate case) court, without thereby converting the action from quieting of title into
accion publiciana, may determine,:
Affords prompt and adequate method to remove cloud on title
o Incidentally the ownership,
Promotes improvement of property
o The stats of the legal title to the property
To what kind of property does this action apply? o Right to the possession thereof
Real property, which may refer to either the title or only an interest
therein (usufruct, servitude, lease record, etc) Art 478 There may also be an action to quiet title or remove a cloud
Not to personal property therefrom when the contract, instrument or other obligation has been
extinguished or has terminated, or has been barred by extinctive
o But, they may be applied to personalty under exceptional
prescription.
circumstances with respect to certain types of property which
Two cases when action allowed

28
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

An action to quiet title may be maintained: If a building, wall, column or other construction is in danger of falling, the
1. When the contract, instrument, or other obligation has been owner has the duty to either:
extinguished or terminated (right of the defendant has been o Demolish it, or
extinguished by the happening of a condition subsequent) o Repair it.
2. When the contract, instrument or other obligation has been barred by In case he doesnt, the administrative authorities, in the exercise of
extinctive prescription (as where plaintiff has possess in bad faith the police power, may order the demolition of the structure, or take
property publicly, adversely and uninterruptedly for 30 years) measures to insure public safety
Recognition of the limitation of the owners rights in the use and
Art 479 The plaintiff must return to the defendant all benefits he may enjoyment of his property
have received from the latter, or reimburse him for expenses that may o Sic utere tuo ut alienum non laedas. Use your property as
have redounded to the plaintiffs benefit. not to injure others
Obligation of plaintiff to return or reimburse Art 483 Whenever a large tree threatens to fall in such a way as to
The purpose of the action to quiet title is solely cause damage to the land or tenement of another or to travelers over a
o to remove the cloud on the plaintiffs title or public or private road, the owner of the tree shall be obliged to fell and
o to prevent a cloud from being cast upon his title, and not to remove it; and should he not do so, it shall be done at his expense by
obtain any other benefit order of the administrative authorities.
Plaintiff is bound to return to the defendant all the benefits he may have
received form the latter or reimburse him for the expenses incurred on Owner of the tree may be compelled to fell and remove a threatening
the property which has redounded to the plaintiffs benefit (less of tree, and should he fail to do so, the work shall be ordered done at his
course, any damage which he suffered by reason of the defendant) expenses by the administrative authorities

Art 480 The principles of the general law on the quieting of title are TITLE III CO-OWNERSHIP
hereby adopted insofar as they are not in conflict with this Code.

Art 481 The procedure for quieting of title or the removal of a cloud ART 484 There is co-ownership whenever the ownership of an
therefrom shall be governed by such rules of court as the Supreme undivided thing or right belongs to different person.
Court shall promulgate. In default of contracts, or of special provisions, co-ownership
shall be governed by the provisions of this Title.
CHAPTER FOUR: RUINOUS BUILDINGS AN TREES IN What is co-ownership?
DANGER OF FALLING As a manifestation of ownership, it is that form of ownership which
exists whenever an undivided thing or right belongs to different persons
Art 482 If a building, wall, column or any other construction is in As a right, it has been defined as the right of common dominion which
danger of falling, the owner shall be obliged to demolish it or to two or more persons have in a spiritual or ideal part of a thing which is
execute the necessary work in order to prevent it from falling. not materially or physically divided
If the proprietor does not comply with this obligation, the
administrative authorities may order the demolition of the structure at Requisites
the expense of the owner, or take measures to insure public safety. i. Plurality of owners
ii. Object of ownership must be an undivided thing or right

29
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

iii. Each co-owners right must be limited only to his ideal share of the 6. Occupancy (two folks catch a wild animal in the jungles of Borneo)
physical whole
Co-ownership Joint Ownership
Characteristics of co-ownership Each co-owner, together with No abstract share ownership by
1. Two or more co-owners the others, is the owner of the the co-owners, the right of the
2. Single object which is not materially or physically divided, over which whole undivided thing or right joint tenants being inseparable
and his ideals share of the whole, each co-owner exercises ownership, but at the same time of his own
together with the co-owners ideal part thereof
3. No mutual representation by the co-owners Can dispose of his share Not permitted to dispose of his
4. Exists for the common enjoyment of the co-owners without the consent of the other share or interest in the property
5. No distinct legal personality without the consent of others
6. Governed first by the contract of parties Survivors are subrogated to the If joint tenant dies, his
a. otherwise, by special legal provisions rights of the deceased ownership dies with him
b. in default of such provisions, by this Title immediately upon the death of
the latter
Ownership of a co-owner Disability of a co-owner does Disability of a joint tenant inures
Ownership of whole and over his aliquot share not inure to the benefit of the to the benefit of the others for
Each owner is at the same time absolute owner of his own ideal but others purposes of prescription
definite share which determines his rights and obligations in the co-
ownership
Every co-owner, jointly with the other co-owners, is the owner Co-ownership Partnership
i. of the whole, and over the whole he exercises the right of May be created without Can be created only by a
dominion, and formalities of a contract contract, express or implied
ii. he is at the same time the owner of an aliquot portion which is No juridical or legal personality Distinct juridical personality
truly abstract because until division is effected such portion is Purpose is collective enjoyment Purpose to obtain profits
not concretely determined of the thing
Co-owner can dispose of his Unless authorized, a partner
Disputed portions owned already concretely determined share without the consent of the cannot dispose and substitute
No co-ownership when the different portions owned by different people others, transferee automatically another partner in his place
are already concretely determined and separately identifiable, even if becoming a co-owner Partner can generally bind the
not yet technically described No mutual representation partnership
Example: When northern half of land belongs to buyer, southern Distribution of profits must be Distribution of profits is subject
half belongs to seller proportional to the respective to stipulation of the partners
interests of the co-owners
Sources of co-ownership Not dissolved by death Dissolved by death or incapacity
1. Contract (two persons share in paying purchase price) Agreement to keep the thing
2. Law (easement in party walls, absolute community of property) undivided for a period of more There may be agreement as to
3. Succession (in the case of heirs of undivided property) than ten years is void (although any definite term without limit
4. Testamentary disposition or donation inter vivos (testator prohibits it may be extended by a new set by law
partition of the property) agreement)
5. Fortuitous event or by chance (commixtion or confusion by accident)

30
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Co-ownership Easement Co-owners are free to change the purpose of the co-ownership
Each co-owner has a right of Precisely a limitation on the right by agreement, express or implied
dominion over the whole of dominion o However, mere tolerance does not change purpose
property and over his undivided 2. Must not injure the interest of the co-ownership
share 3. Must not prevent the co-owners from using it according to their rights
Right of ownership rests solely Right of dominion is in favor of
on each and every co-owner one or more persons and over Art 487 Anyone of the co-owners may bring an action in ejectment.
over a single object two or more different things
Action in ejectment
Case doctrines Any co-owner can bring, in behalf of himself, and the other co-owners
The property regime of parties to a bigamous marriage is governed by an action in ejectment affecting the co-ownership
Art 148 of the Family Code which provides that all properties acquired o Forcible entry, unlawful detainer, recovery of possession,
by the parties out of their actual joint contribution of money, property, or recovery of ownership
industry shall be governed by the rules on co-ownership. If there is no May be brought against strangers and even against a co-owner
contribution from either or both of the spouses, there can be no co- o Only purpose of an action against a co-owner who takes
ownership. (Acre v Yuttikki - aw yeah, what a name.) exclusive possession and asserts exclusive ownership of the
property is to obtain recognition of the co-ownership
Art 485 The share of the co-owners, in the benefits as well as in the An adverse decision in the action is not necessarily res judicata with
charges, shall be proportional to their respective interests. Any respect to the other co-owners not being parties to the action
stipulation in a contract to the contrary shall be void. o Exception: where it appears that the action was instituted in
The portions belonging to the co-owners in the co-ownership their behalf with their express or implied consent, or
shall be presumed equal, unless the contrary is proved. o The rights in the co-ownership are derived from the title of their
predecessors-in-interest found by the court to be invalid or
Presumption: Proportional to their respective interests inexistent
Does not apply to co-ownership based on will or by donation.
Art 488 Each co-owner shall have a right to compel the other co-
Art 486 Each co-owner may use the thing owned in common, provided owners to contribute to the expenses of preservation of the thing or
he does so in accordance with the purpose for which it is intended and right owned in common and to the taxes. Anyone of the latter may
in such a way as not to injure the interest of the co-ownership or exempt himself from this obligation by renouncing so much of his
prevent the other co-owners from using it according to their rights. The undivided interest as may be equivalent to his share of the expenses
purpose of the co-ownership may be changed by agreement, express and taxes. No such waiver shall be made if it is prejudicial to the co-
or implied. ownership.
Limitations on co-owners right to use Obligation to contribute to expenses of preservation and to taxes
1. Must be n accordance with the purpose for which the co-ownership is The expenses of preservation of the thing or right owned in common
intended and the amount of taxes due thereon should be borne by all
Resort to the agreement A co-owner who advanced them has a right to demand reimbursement
In absence thereof, it is to be understood that the thing is from the others in proportion to their respective interests in the co-
intended for that use for which it is ordinarily adapted ownership
according to its nature Refers only to necessary expenses

31
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Useful expenses are not covered, unless such were incurred with the Art 490 Whenever the different stories of a house belong to different
consent of the others owners, if the titles of ownership do not specify the terms under which
Expenses for pure luxury are not also refundable, not being for they should contribute to the necessary expenses and there exists no
preservation agreement on the subject, the following rules:
1. the main and party walls, the roofs and the other things used
Renunciation by a co-owner of his share in the co-ownership in common, shall be preserved at the expense of all the
Renunciation need not be total owners in proportion to the value of the story belonging to
The co-owner need only renounce or give up in favor of the other co- each;
owners so much of this undivided share as may be equivalent to his 2. Each owner shall bear the cost of maintaining the floor of his
share of expenses and taxes story; the floor of the entrance, front door, common yard and
Example? sanitary works common to all shall be maintained at the
expense of all the owners pro rata;
Art 489 Repairs for preservation may be made at the will of one of one 3. The stairs from the entrance to the first story shall be
of the co-owners, but he must, if practicable, first notify his co-owners maintained at the expense of all the owners pro rata, with the
of the necessity for such repairs. Expenses to improve or embellish the exception of the owner of the ground floor; the stairs from the
thing shall be decided upon by a majority as determined in Article 492. first to the second story shall be preserved at the expense of
all, except the owner of the ground floor and the owner of the
Necessity for agreement on expenses first story; and so on successively.
Acts or decisions affecting the ting owned in common may be grouped
into Applies if the titles of ownership do not specify the terms thereof or
o Acts of preservation (Art 489) there exists no agreement on the subject
o Acts of administration (Art 492)
Art 491 None of the co-owners shall without the consent of the others,
o Acts of alteration (Art 491)
make alterations in the thing owned in common, even though benefits
Repairs for preservation for all would result therefrom. However, if the withholding of the
o A co-owner has the right to compel the other co-owners to consent by one or more ot the co-owners is clearly prejudicial to the
contribute to the expenses of preservation, maintenance or common interest, the courts may afford adequate relief.
necessary repairs of the thing or right owned in common, and
to the taxes, even if incurred without the knowledge of other Necessity of consent of other co-owners for alterations
co-owners or prior notice to them, in view of the nature of Alteration contemplates a change made by a co-owner in the thing
expenses owned in common which involves:
o Co-owner must, if practicable, first notify the co-owners of the o Change of the thing from the state or essence in which the
necessity for the repairs others believe it should remain; or
If impracticable or where the repairs are very urgent o Withdrawal of the thing from the use to which they wish it to be
and the other co-owners are in remote places and intended; or
cannot be reached, the notice may be dispensed with o Any other transformation which prejudices the condition or
o The lack of notice, even if practicable, would not exempt the
substance of the thing or its enjoyment by the others.
other co-owners from the obligation to contribute to the
Alteration is not limited to material or physical changes
expenses. But the co-owner who advanced them has the
o Includes any act of ownership by which a real right or
burden of proving that they were properly incurred.
encumbrance is imposed on the common property, such as

32
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

servitude, registered lease, lease of real property for more than o The majority likewise decides the expenses to improve or
one year, mortgage, pledge embellish the common property. Notice must be given to the
NB: Unanimous consent of all the co-owners, not a mere majority, is minority unless it is impracticable to do so.
necessary even if the alteration would prove beneficial because If there is no majority or the resolution of the majority is seriously
alteration is an act of ownership and not of mere administration prejudicial to the interests of the other co-owners, the court, at the
o Consent may be expressed or implied instance of an interested party, may take such measures as it may
Liability for alteration: the co-owner who makes such alteration without deem proper
the express or implied consent of the other co-owners acts in bad faith o Examples of prejudicial acts:
because he does so as if he were the sole owner Resolution calls for a substantial change of the thing
o He loses what he has spent Authorizes leases, loans, and other contracts without
o Obliged to demolish the improvements done, and the necessary security
o Liable to pay for loses and damages the community property or Upholds the continued employment of an
the other co-owners may have suffered administrator who is guilt of fraud or negligence in his
management
Art 492 For the administration and better enjoyment of the thing owned
in common, the resolutions of the majority of the co-owners shall be Art 493 Each co-owner shall have the full ownership of his part and of
binding. the fruits and benefits pertaining thereto, and he may therefore
There shall be no majority unless the resolution is approved alienate, assign or mortgage it, and even substitute another person in
by the co-owners who represent the controlling interest in the object of its enjoyment, except when personal rights are involved. But the effect
the co-ownership. of the alienation or the mortgage, with respect to the co-owners shall
Should there be no majority, or should the resolution of the be limited to the portion which may be allotted to him in the division
majority be seriously prejudicial to those interested in the property upon the termination of the co-ownership.
owned in common, the court, at the instance of an interested party,
shall order such measures as it may deem proper, including the Rights of each co-owner
appointment of an administrator. 1. Full ownership of his part, that is, his undivided interest or share in the
Whenever a part of the thing belongs exclusively to one of the common property
co-owners, and the remainder is owned in common, the preceding 2. Full ownership of the fruits and benefits pertaining thereto
provisions shall apply only to the part owned in common. 3. May alienate, assign or mortgage his ideal interest or share
independently of the other co-owners
Rules for acts of administration and better enjoyment 4. May even substitute another person in the enjoyment of his part, except
Acts of management of the common property when personal rights are involved
They contemplate acts or decisions for the common benefit of all the co-
owners and not for the benefit of only one or some of them A co-owner is given the legal right of redemption in case the shares of
While alteration is more or less permanent, acts of administration have all the other co-owners or any of them are sold to a third person (not a
transitory effects and have for their purpose the preservation, co-owner)1
preparation and better enjoyment of the thing and which do not affect its 1
Art 1620 A co-owner of a thing may exercise the right of redemption in case the
essence, nature or substance
shares of all the other co-owners or of any of them, are sold to a third person. If the
NB: Majority rule prevails. price of the alienation is grossly excessive, the redepmtioner shall pay only a
o The majority consists of co-owners who represent the reasonable one.
controlling interest in the object of the co-ownership. Should two or more co-owners desire to exercise the right of redemption they may
only do so in proportion to the share they may respectively have in the thing owned in

33
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

o Harry, Ron and Neville were co-owners of a parcel of land. o Even if a co-owner sells the whole property as his own, or
Harry sold his share to Draco. Ron and Neville may redeem without the consent of ther other co-owners, the sale is valid
the share from Angel. If only Ron exercises the right, he shall only insofar as his ideal quota is concerned unless the sale is
pay only a reasonable price. Subject to reimbursement from authorized by the other co-owners
Neville, as it is a preservation expense. o A sale of the entire property by one co-owner will only transfer
o If they both want to exercise the right, they may only do so in the rights of said co-owner to the buyer, thereby making the
proportion to the share they may respectively have in the thing buyer a co-owner of the property
owned in common. o Recourse of co-owners when their consent was not secured:
action for partition
A co-owner may exempt himself from the obligation to contribute to the
expenses of preservation of the thing or right owned in common and to Where personal rights are involved
the taxes by renouncing so much of his interest as may be equivalent to A co-owner may substitute another in the enjoyment of his undivided
his share of the expenses and taxes interest in the co-ownership except when personal rights are involved
Personal right a right which cannot be transferred because it affects
Sale or mortgage of common property the personal relations of the co-owners with one another
Undivided portion
o A co-owner is free to dispose of his pro indiviso share and of Art 494 No co-owner shall be obliged to remain in the co-ownership.
the fruits and other benefits arising from that share but the Each co-owner may demand at any time the partition of the thing
transferee does not acquire an specific or determinate physical owned in common, insofar as his share is concerned.
portion of the whole, his right being limited to the portion which Nevertheless, an agreement to keep the thing undivided for a
may be allotted to him upon the partition of the property certain period of time, not exceeding ten years, shall be valid. This
Definite portion terms may be extended by a new agreement.
o The fact that a deed of sale appears to convey a definite or A donor or testator may prohibit partition for a period which
segregated portion of the property under co-ownership that is shall not exceed twenty years.
still undivided does not per se render the sale a nullity Neither shall there be any partition when it is prohibited by
o The sale is valid subject only to the condition that the interests law.
acquired by the vendee must be limited to the part that may be No prescription shall run in favor of co-owner or co-heir
assigned to the co-owner-vendor in the division upon the against his co-owners or co-heirs so long as he expressly or impliedly
termination of the co-ownership recognizes the co-ownership.
o The sale affects only his proportionate or abstract share in the
property owned in common, subject to the results of the Termination of co-ownership
partition, but not those of the other co-owners who did not Co-ownership may be terminated in different ways, as follows
consent to the sale 1. Consolidation or merger in only one of the co-owners of all the
o There may be a valid sale of a definite portion of the property interests of the others;
co-owned even before actual partition where the rule of 2. Destruction or loss of the property co-owned
estoppel apples (co-owners didnt object when seller pointed a 3. Acquisitive prescription in favor of a third person, or a co-owner
portion out to a potential buyer) who repudiates the co-ownership
Whole property 4. Partition, judicial or extrajudicial
5. Termination of the period agreed upon or imposed by the donor or
testator, or of the period allowed by law
common.

34
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

6. Sale by the co-owners of the thing to a third person and the Where, however, a co-owner or co-heir repudiates the co-ownership,
distribution of its proceeds among them prescription begins to run from the time of repudiation (requisites)
i. He had performed unequivocal acts of repudiation of the co-
Right of a co-owner to demand partition ownership amounting to an ouster of the beneficiary or the
Partition is the division between two or more persons of real or personal other co-owners
property which they own in common so that each may enjoy and ii. Such positive acts of repudiation have been made known to
possess his sole estate to the exclusion of and without interference from the beneficiary or other co-owners
the others iii. Evidence thereon is clear, complete and conclusive in order to
Co-owner ahs the right to demand at any time partition of the thing establish prescription without any shadow of doubt; and
owner in common, insofar as his share is concerned for no co-owner iv. Possession is open, continuous, exclusive and notorious
shall be obliged to remain in the co-ownership
Action to demand partition is imprescriptible or cannot be barred by Examples of specific acts which are considered as acts of repudiation
laches, absent a clear repudiation of the co-ownership by a co-owner Filing by a trustee of an action in court against the trustor to quiet title to
clearly communicated to the other co-owners property
The actual possession and enjoyment of several portions of the Action for reconveyance of land based on implied or constructive trust
common property by some of the co-owners does not of itself provide Cancellation of title in the name of the apparent beneficiaries and
proof that the property has already been partitioned and co-ownership application for a new certificate of title in his (administrator/trustee)
terminated. name
o A co-owner cannot, without the conformity of the other co-
owners or judicial decree of partition, adjudicate to himself in Art 495 Notwithstanding the provisions of the preceding article, the co-
fee simple a determinate portion of the property owned in owners cannot demand a physical division of the thing owned in
common as his share theirein, to the exclusion of the others common, when to do so would render it unserviceable for the use for
which it is intended. But the co-ownership may be terminated in
Exceptions to the right to demand partition accordance with Article 498.
1. When the co-owners have agreed to keep the thing undivided for a
certain period of time, not exceeding ten years Art 496 Partition may be made by agreement between the parties or by
o Period stipulated exceeds ten years would be void insofar as judicial proceedings. Partition shall be governed by the Rules of Court
the excess is concerned insofar as they are consistent with this Code.
2. When the partition is prohibited by donor or testator for a certain period
not exceeding twenty years Purpose and effect of partition
3. When the partition is prohibited by law Partition has for its purpose the separation, division and assignment of
o Conjugal property, etc the thing held in common among those to whom it may belong.
4. When partition would render the thing unserviceable for the use for After partition, the portion belonging to each co-owner has been
which it is intended identified and localized, so that co-ownership, in its real sense, no
5. When another co-owner has possessed the property as exclusive owner longer exists
and for a period sufficient to acquire it by prescription
Action for partition
Prescription in favor of or against a co-owner Two phases:
Prescription does not run in favor or against a co-owner or co-heir o Determine whether there is indeed a co-ownership
Co-ownership is a form of a trust, with each owner being a trustee for o Determine how the property is to be divided
each other.

35
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

The issue of ownership or co-ownership must first be solved in order to o If no notice is given, the creditors or assignees may question
effect a partition of properties the partition already made;
An action for partition will not lie if the claimant has no rightful interest o If notice is given, it is their duty to appear and make known
over the subject property their position; they may concur with the proposed partition or
object to it; and
How partition effected o They cannot impugn a partition already executed or
May be effected extrajudicially pursuant to an agreement implemented unless:
May be effected judicially by judicial proceedings under Rule 69 of the There has been fraud, whether or not notice was
Rules of Court given, and whether or not formal opposition was
o An action for partition is in the nature of an action quasi in rem presented, or
The partition was made notwithstanding that formal
Application of the Statute of Frauds opposition was presented to prevent it, even if there
The Statute of Frauds does not apply to partition because it is not has been no fraud.
legally deemed a conveyance or a sale of property resulting in change Debtor or assignor has always the right to show the validity of the
of ownership but simply a segregation and designation of that part of the partition.
property which belongs to each of the co-owners
Oral partition is valid and enforceable where no third persons are Art 498 Whenever the thing is essentially indivisible and the co-owners
involved cannot agree that it be allotted to one of them who shall indemnify the
o In cases of oral partition, the actual possession of one of the others, it shall be sold and its proceeds distributed.
property is evidence that there was indeed oral partition.
o In an oral partition under which the parties went into Although the thing cannot be physically divided, the co-ownership may
possession, exercises acts of ownership, or otherwise partly nevertheless be terminated in accordance with the above provision
performed the partition agreement, equity will confirm such pursuant to the rule in Art 494 by adjudication of the thing to one of the
partition and in a proper case, decree title in accordance with co-owners who shall indemnify the others or by its sale with the
the possession in severalty proceeds thereof divided among the co-owners
Sale may be private, public, and purchases may be a co-owner or a
Art 497 The creditors or assignees of the co-owners may take part in third person
the division of the thing owned in common and object to its being Art 498 applies when:
effected without their concurrence. But they cannot impugn any o Thing indivisible
partition already executed, unless there has been fraud, or in case it o Co-owners cant agree that it be allotted to one of them, who
was made notwithstanding a formal opposition presented to prevent it, shall indemnify the others
without prejudice to the right of the debtor or assignor to maintain its o So, ibenta na lang!
validity.
Art 499 The partition of a thing owned in common shall not prejudice
The law does not expressly require that previous notice of the proposed third persons who shall retain the rights of mortgage, servitude, or any
partition be given to the creditors and assignees. But as they are other real rights belonging to them before the division was made.
granted the right to participate in the partition, they have also the right to Personal rights pertaining to third persons against the co-ownership
be notified thereof. In the absence of notice, the partition will not be shall also remain in force, notwithstanding the partition.
binding on them.
Rules:

36
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Third persons, refer to all those with real rights, such as mortgage and Private units (meaning the a part of the condo project intended for any
servitude over the thing owned in common or with personal rights type of independent use or ownership) are owned by the unit owners
against the co-owners who had no participation whatever in the partition o Unit owners are shareholders in the condominium
o If you sell your unit to someone else, you lose your status as a
Art 500 Upon partition, there shall be a mutual accounting for benefits shareholder in the condominium corporation
received and reimbursements for expenses made. Likewise, each co- Condominium Certificate of Title is whats given (as opposed to a OCT
owner shall pay for damages caused by reason of his negligence or or TCT)
fraud.
TITLE V POSSESSION
Art 501 Every co-owner shall, after partition, be liable for defects of title
and quality of the portion assigned to each of the other co-owners. CHAPTER ONE
POSSESSION AND THE KINDS THEREOF
What are the obligations of the co-owners upon partition? (ARIW)
1. Mutual accounting for the benefits received (because the fruits and Art 523 Possession is the holding of a thing or the enjoyment of a right.
other benefits of the thing belong to all the co-owners)
2. Mutual reimbursement for expenses (necessary expenses, taxes, etc) Concept of possession
3. Indemnity for damages caused by reason of negligence or fraud As a distinct legal concept, possession is the holding of a thing or the
4. Reciprocal warranty for defects of title or quality of the portion assigned enjoyment of a right with the intention to possess in ones own right
to a co-owner (land allotted to a co-owner belongs to a third party, or the
property is of inferior quality) Ownership and possession distinguished
a. Atty Abrenica said that in practice, the remedy in this situation There is ownership when a thing pertaining to one person is completely
is to divide the remaining property and just give it to the one subjected to his will in a manner not prohibited by law and consistent
prejudiced with the rights of others. It confers certain right to the owner (right to
enjoy the thing owned and the right to exclude other persons from
THE CONDOMINIUM ACT possession thereof)
A condominium is an On the other hand, possession is defined as the holding of a thing or the
o Interest in real property consisting of enjoyment of a right. To possess means to actually and physically
A separate interest in a unit in a residential, industrial, occupy a thing with or without a right.
or commercial building, and Possession may be in the concept of an owner or in the concept of a
An undivided interest in common directly or indirectly holder.
in the land on which it is located and in other common A person may be declared owner but he may not be entitled to
areas of the building. possession. (As in when the possession is in the hands of a tenant)
Two important documents: Master Deed and Declaration of Restrictions A judgment for ownership does not necessarily include possession as a
Foreigners can own up to 40% of the entire condominium corporation necessary incident.
(so if the condominium has 100 units, foreigners can own up to 40 units) Just as possession is not a definite proof of ownership, neither is non-
Project means the entire parcel of real property divided or to be possession inconsistent with ownership.
divided in condominiums, including all structures thereon
Common areas (meaning the entire project excepting all units What are the elements of possession?
separately granted or held or reserved) are owned by the condominium 1. Holding or control of a thing or right
corporation Possession always implies the element of corpus or occupation,
whether in ones own name or another (except in cases in Art 537)

37
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

In other words, there must be possession in fact 3. Possession with a just title
2. With intention to possess Possession of an adverse claimant whose title is sufficient to
the intention and the will to possess are inferred from the fact that transfer ownership but is defective, such as when the seller is not
the thing is under the control of the alleged possessor, however, the the true owner or could not transmit his rights thereto to the
existence of the animus possidendi is always subject to possessor who acted in good faith
contradiction (when in fact the person does not in fact exercise 4. Possession with a title in fee simple
such power of control and does not intend to do so) Possession derived from the right of dominion or possession of an
Insane and demented persons cannot acquire possession as they owner. This is the highest degree of possession.
are incapable of understanding their actions, therefore, the animus
possidendi cannot be present Nature of possession
3. In ones own right 1. As an act
Possession may be in ones own name or that of anothers (by Simply the holding of a thing or the enjoyment of a right with the
himself or by an agent) intention to possess in ones own right
In the first case, the possession may be in the concept of owner or 2. As a fact
in the concept of a holder of a thing with ownership pertaining to When there is holding or enjoyment, then possession exists as a
another fact. It is the state or condition of a person having property under
In the second case, the possession is exercised by the owner or his control, with or without right
holder thru his agent 3. As a right
In both cases, the possession of the owner or holder is by virtue of Refers to the right of a person to that holding or enjoyment to the
his right as such owner or holder exclusion of all others having better right than the possessor. It may
be:
What are the relations created by possession? o Jus possidendi, or right to possession which is incidental
Possession is characterized by two relations: to and included in the right of ownership; or
1. Possessors relation to the property itself this assumes that the o Jus possessionis or right of possession independent of
possessor exercises some degree of control more or less effective and apart from the right of ownership.
over the object.
2. Possessors relation to the world aside from the power of control Possession as a fact
over the object, the possessor must also have the ability to exclude 1. The face of possession gives rise to certain rights and presumptions.
others from his possession. A customer who holds and examines a Thus a person has a right to be respected in his possession, and
piece of jewelry in the presence of the seller may be said to have should he be disturbed therein, he shall be protected or restored to
only custody, not possession, of the jewelry. said possession.
A possessor has in his favor the presumption that his possession is
Forms or degrees of possession lawful that he is the owner or has been given the right of
1. Possession without any title whatever possession by the owner. He who would disturb a possessor must
Mere holding or possession without any right or title at all, such as show either ownership or a better possessory right.
that of a thief or squatter 2. Possession is not a definitive proof of ownership nor is non-possession
2. Possession with a juridical title inconsistent therewith. Possession, however, may create ownership
Predicated on a juridical relation existing between the possessor either by occupation or by acquisitive prescription.
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, Classes of possession
agent, etc 1. Possession in ones own name or in the name of another (Art 524)

38
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

2. Possession in the concept of owner or possession in the concept of o When possession is in the name of another, the one in actual
holder (Art 525), and possession is without any right of his own, but is merely an
3. Possession in good faith or possession in bad faith (Art 526) instrument of another in the exercise of the latters possession,
such as possession of an agent, servant or guard. Possession
Extent of possession in anothers name may be:
1. Actual possession Voluntary, when exercised by virtue of an agreement,
Occupancy in fact of the whole or at least substantially the whole. or
With land, it consists in the manifestation of acts of dominion over it Necessary or legal, when exercised by virtue of law,
of such a nature as a party would naturally exercise over his such as the possession in behalf of incapacitated
property. persons.
Literally, to possess means to actually and physically occupy a Physical or material, when the possessor is a mere
thing with or without a right. custodian of the property and has no independent
2. Constructive possession right or title to retain or possess the same as against
Occupancy of part in the name of the whole under such the owner (like the possession of money received by
circumstances that the law extends the occupancy to the a teller for the bank), or
possession of the whole. Juridical, when the possession gives the transferee a
Doctrine of constructive possession right over the thing which the transferee may set up
Possession in the eyes of the law does not mean that a man has to against the owner, such as the possession of an
have his feet on every square meter of ground before it can be said that agent who receives the proceeds of sales of goods
he is in possession. delivered to him in agency by his principal.
The general rule is that the possession and cultivation of a portion of a
tract of land under claim of ownership of all is constructive possession Case doctrines
of all. In the grammatical sense, to possess means to have, to actually and
o There are qualifications to this rule, and one of them is that physically occupy a thing, with or without a right. Two things are
relating to the size of the tract in controversy with reference to paramount in possession
the portion actually in possession of the claimant. o there must be occupancy, apprehension or taking, and
o there must be intent to possess (animus possidendi). (Yu v
Pacleb)
Art 524 Possession may be exercised in ones own name or in that of Possession always includes the idea of occupation. It is not necessary
another. that the person in possession should himself be the occupant. The
occupancy can be held by another in his name. without occupancy,
Name under which possession may be exercised there is no possession. (Yu v Pacleb)
An owner or a holder may exercise his possession in his own name or
through another.
In the same way, possession may be acquired by the same person who Art 525 The possession of things or rights may be had in one of two
is to enjoy it or by one acting for another (Art 532) concepts: either in the concept of owner, or in that of the holder of the
1. In ones own name thing or right to keep or enjoy it, the ownership pertaining to another
o When in ones own name, the fact of possession and the right person.
to such possession are found in the same person, such as the
actual possession of an owner or a lessor of land. Concept in which possession may be had
2. In the name of another

39
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Concept, as contemplated in the provision, does not mean the opinion, o open when it is patent, visible, apparent, notorious and not
attitude or belief of the possessor, but of the others, generally in view of clandestine.
the circumstances which precede and accompany the possession. o continuous when uninterrupted, unbroken and not intermittent
Thus, possession in the concept of owner is distinguished from or occasional.
possession in good faith. o exclusive when the adverse possessor can show exclusive
This kind of possession is also referred as to adverse possession that dominion over the land and an appropriation of it to his own
may ripen into ownership under Article 540. use and benefit
Possession may be had in one of two concepts: o notorious when it is so conspicuous that it is generally known
1. Possession in the concept of owner (en concepto de dueno) and talked off by the public or the people in the neighborhood.
This takes place when the possessor, by his actions, is Use of land is adverse when it is open and notorious. (Republic v
considered or is believed by other people as the owner, Imperial Credit Corporation)
regardless of the good or bad faith of the possession. While a tax declaration by itself is not sufficient to prove ownership, it
It is possession under a claim of ownership or title by one who may serve as sufficient basis for inferring possession. (Rep v ICC)
is the owner himself or one who is not the owner but claims to Tax declarations and receipts can only be the basis of a claim of
be and acts as the owner. ownership through prescription when coupled with proof of actual
2. Possession in the concept of holder possession. (Heirs of Cabal v Cabal)
This takes place when the possessor of a thing or right holds it However, tax declarations and receipts are not conclusive evidence of
merely to keep or enjoy it, the ownership pertaining to another ownership. At most, they constitute mere prima facie proof of ownership
person. or possession of the property for which the taxes have been paid. In the
It is possession not under a claim of ownership, the possessor absence of actual public and adverse possession, the declaration of the
acknowledging in another a superior right which he believes to land for tax purposes does not prove ownership. (Cequena v Bolante)
be of ownership, whether this be true or not, or his belief be
right or wrong. Art 526 He is deemed a possessor in good faith who is not aware that
A person may be a lessor although he is not the owner of the there exists in his title or mode of acquisition any flaw which
property leased. In lease, only the temporary use and invalidates it.
enjoyment, not the ownership of the property is transferred. He is deemed a possessor in bad faith who possesses in any
case contrary to the foregoing.
Possession in concept of both owner and holder or in neither Mistake upon a doubtful or difficult question of law may be the
It is possible that a person may exercise possession both in the concept basis of good faith.
of owner and in the concept of holder.
A distinction must be borne in mind between possession of the thing Define possessor in good faith and in bad faith
itself and possession of the right to keep or enjoy the thing. A possessor in good faith (Buena fe) is one who is not aware that there
o Rights are possessed in the concept of owner. Thus, the exists in his title or mode of acquisition any flaw which invalidates it.
lessee possesses the thing leased in the concept of holder, A possessor in bad faith (mala fe) is one who possesses in any case
and the right of lease in the concept of owner. contrary to the foregoing; he is aware that there exists in his title or
The agent, parent and other legal representatives possess neither in the mode of acquisition a flaw which invalidates it.
concept of owner nor holder. They possess in the name of another. This article presupposes that the there exists a flaw in the title or mode
of acquisition of the possessor who is either aware or not aware of it.
Case doctrines If there is no flaw, there can be no issue regarding good or bad faith.
Possession is:

40
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Good faith is always presumed, and upon him who alleges bad faith on One is considered a possessor in good faith if he is not aware that there
the part of the possessor rests the burden of proof. exists in his title or mode of acquisition any flaw which invalidates it.
The distinction is importance principally in connection with the receipt of Basically, its honesty of intention and absence of malice.
fruits and the payment of expenses and improvements and the
acquisition of ownership by prescription. Concept of bad faith
The distinction is immaterial in the exercise of the right to recover under It is the opposite of good faith.
Article 539 which speaks of every possessor. It imputes a dishonest purpose to do wrong or cause damage.
The good or bad faith is necessarily personal to the possessor but in the It contemplates a state of mind affirmatively operating with furtive design
case of a principal and any person represented by another, the good or or some motive of self-interest of ill-will for ulterior purposes.
bad faith of the agent or legal rep will benefit or prejudice him for whom
he acts. Mistake upon a doubtful or difficult question of law
The phrase mistake upon a doubtful or difficult question of law refers
Requisites for possession in good faith or bad faith to the honest error in the application of the law or interpretation of
1. The possessor has a title or mode of acquisition; (Art 712) doubtful or conflicting legal provisions or doctrines.
2. There is a flaw or defect in said title or mode; and It is different from ignorance of the law.
3. The possessor is unaware or aware of the flaw or defect or believes that Manresa says that gross and inexcusable ignorance of the law may not
the thing belongs or does not belong to him. be the basis of good faith, but excusable ignorance may be such basis if
A possessor in good faith becomes a possessor in bad faith from the it is based upon ignorance.
moment he becomes aware that what he believes to be true is not so. Dean Capistrano says that excusable ignorance as a basis of good faith
If the flaw is in the title of the possessors predecessor, and affects his was rejected by the Code Commission.
own title, the flaw exists in his own title unless he can sustain his own
independent of that of his predecessor. Case doctrines
The possessor with a Torrens Title who is not aware of any flaw in his
Concept of good faith title which invalidates it is considered a possessor in good faith and his
Good faith or the lack of it is a question of intention, but in ascertaining possession does not lose this character except in the case and from the
the intention, the courts are necessarily controlled by the evidence as to moment his Torrens Title is declared null and void by final judgment of
the conduct and outward acts by which alone the inward motive may be the Courts. (Dizon v Rodriguez)
determined. The defense of having purchased the property in good faith may be
Good faith or the want of it, is not a visible, tangible fact that can be availed of only where registered land is involved and the buyer had
seen or touched but rather a state or condition of mind which can only relied in good faith on the clear title of the registered owner. (Daclag v
be ascertained by actual or fancied tokens or signs. Macahilig)
The essence of bona fides or good faith lies in:
o The honest belief in the validity of ones right,
o ignorance of a superior claim, and Art 527 Good faith is always presumed, and upon him who alleged bad
o absence of intention to overreach another, or to defraud or to faith on the part of a possessor rests the burden of proof.
seek an unconscionable advantage. (also the doctrine of Heirs
of Cabal) Presumption of good faith
Good faith must rest on a colorable right in the possessor beyond a This article establishes the presumption of good faith; it does not say
mere stubborn belief in ones title. that good faith exists, but that it is presumed.

41
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

The presumption is just because possession is the outward sign of


ownership. It is to be presumed that the right of the possessor is well- Art 529 It is presumed that possession continues to be enjoyed in the
founded. same character in which it was acquired, until the contrary is proven.
Every person is presumed to be honest until the contrary is shown.
But note that for the purposes of prescription, just title must be proved; it Continuity of the character of the possession
is never presumed. The character or possession (good faith or bad faith) is presumed to
continue until the contrary is proved
Art 528 Possession acquired in good faith does not lose this character No one can, by his sole will nor by the mere lapse of time, change the
except in the case and from the moment facts exist which show that cause of his possession.
the possessor is not unaware that he possesses the thing improperly
or wrongfully. Presumption on the continuance of possession
There are other presumption aside from Articles 527 and 529 affecting
Cessation of good faith during possession possession, namely:
Possession which begins in good faith is presumed to continue in good 1. Uninterrupted possession of hereditary property (Art 533)
faith until the possessor acquires knowledge of facts showing a defect 2. Possession with just title (Art 541)
or weakness in his title. 3. Possession of movables with real property (Art 542)
The law speaks of facts in place of the word acts, the former being 4. Exclusive possession of common property (Art 543)
broader than the latter. Thus, it is immaterial whether the facts from 5. Continuous possession (Art 544)
which bad faith can be deduced involve acts of the possessor himself or 6. Uninterrupted possession (Art 561), and
of some other person or any extraneous evidence. But the existence of 7. Possession during intervening period (Art 1138)
the facts mentioned in the article must be proved.
Bad faith begins or good faith is interrupted from the time the possessor Case doctrines
becomes aware that the he possesses the thing improperly or Possession, to constitute the foundation of a prescriptive right, must be
wrongfully, not from the time possession was acquired. possession under a claim of title, that is, it must be adverse. (Bogo-
In the absence of other facts showing the possessors knowledge of Medellin v CA)
defect in his title, good faith is interrupted from the receipt or service of An acknowledgment of the easement is an admission that the property
judicial summons. belongs to another. It gives the holder of the easement an incorporeal
o From the service of judicial summons, there exists an act interest on the land but grants no title thereto. (Bogo v CA)
which the possessor knows that his right is not secure, that Mere material possession of land is not adverse possession as against
someone disputes it, and that he may yet lose it; and if the the owner and is insufficient to vest title, unless such possession is
court orders that restitution be made, that time determines all accompanied by the intent to possess as an owner. (Bogo v CA)
the legal consequences of the interruption, the time when the
possession in good faith ceases to be so before the law.
o The filing of a case alleging bad faith on the part of a vendee Art 530 Only things and rights which are susceptible of being
gives cause or cessation of good faith. appropriated may be the object of possession.

Case doctrines Object of possession


When a contract of sale is void, the possessor is entitled to keep the To be the object of possession, the thing or right must be susceptible of
fruits during the period for which it held the property in good faith, which being appropriated.
good faith ceases when an action to recover possession of the property
is filed against him and he is served summons therefor. (DBP v CA)

42
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

There are more things susceptible of appropriation than there are things The material occupation of a thing as a means of acquiring possession
within the commerce of men (i.e. those that can be acquired by may take place by actual or constructive delivery. Constructive delivery
prescription). includes:
o With respect to res nullius (property without owner), they can 1. Tradicion brevi manu which takes place when one already in
be possessed because theya re capable of being appropriated possession of a thing by a title other than ownership continues to
but hey cannot be acquired by prescription which presupposes possess the same under a new title, that of ownership.
prior ownership in another. For as long as a thing is res nullius, 2. Tradicion constitutum possessorium which happens when the
it is not within the commerce of men. owner continues in possession of the property alienated not as
o Property of public dominion cannot also be the object of owner but in some other capacity, such as that of lessee, pledgee,
prescription. The same is true of common things but both may or depositary.
be the object of possession.
Subject of the action of will
The second method of acquisition is so broad in scope that it practically
CHAPTER 2 covers all means of acquiring possession.
ACQUISITION OF POSSESSION What the law contemplates is a distinct cause of acquiring possession
and not merely an effect.
Art. 531. Possession is acquired by the material occupation of a thing It refers more to the right of possession than to possession as a fact.
or the exercise of a right, or by the fact that it is subject to the action of Examples of which are these kinds of constructive delivery:
our will, or by the proper acts and legal formalities established for 1. Tradicion longa manu, which is effected by the mere consent or
acquiring such right. (438a) agreement of the parties, as when the vendor merely points to the
thing sold
Ways of acquiring possession 2. Tradicion simbolica, which is effected by delivering an object such
To be considered in possession, one need not have actual or physical as a key where the thing sold is stored or kept
occupation of a thing all times. There are three ways of acquiring
possession, namely: Proper acts and legal formalities
1. By the material occupation or exercise of a right; This last method of acquiring possession refers to acquisition by virtue
2. By the subjection of the thing or right to our will; and of a just title such as when property is transmitted by succession,
3. By proper acts and legal formalities established for acquiring such donation, contract, or execution of a public instrument, or when
right of possession. possession is given by the sheriff to the highest bidder at a public
The modes of acquiring ownership can be seen in Article 712. auction, or pursuant to a writ of execution.
Unless there is a stipulation to the contrary, the execution of a sale thru
Material occupation or exercise of right a public instrument shall be equivalent to the delivery of the thing. But
1. With respect to things the law requires material occupation as one of there is no delivery notwithstanding the execution of the instrument,
the modes of acquiring possession. where the purchaser cannot have the enjoyment and make use of the
2. With respect to rights since rights are intangible and cannot logically thing sold because such enjoyment and use are opposed or prevented
be occupied, what is acquired is the exercise of a right. For example, by another.
possession of a servitude of way, which is a right, is acquired by the Under Article 538, possession as a fact cannot be recognized at the
exercise of the right (by passing over the servient land) same time in two different personalities except in the cases of co-
possession
Material occupation by delivery

43
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

A sale with pacto de retro transfers the legal title to the vendee, and in If a person authorized to acquired possession for another acted beyond
the absence of an agreement to the contrary, carries with it the right to his powers, the principal is not bound unless the latter ratifies the act of
the possession of the property sold. acquisition.
The exception is when a person voluntarily manages the property or
Case doctrines business of another. In such case, the strangers (gestors) possession
Possession alone is not sufficient to acquire title to alienable lands of takes effect even without ratification by the owner of the property or
the public domain because the law requires possession AND business.
occupation.
Possession is broader than occupation because it includes constructive Case doctrines
possession. When the lad adds the word occupation, it seeks to delimit
the all encompassing effect of constructive possession. Ones Art. 533. The possession of hereditary property is deemed transmitted
possession must not be a mere fiction. Acutla possession of a land to the heir without interruption and from the moment of the death of
consists in the manifestation of acts of dominion over it of such a nature the decedent, in case the inheritance is accepted.
as a party would naturally exercise over his own property. (Ong v One who validly renounces an inheritance is deemed never to
Republic) have possessed the same. (440)
Possession cannot be acquired through force or violence. To all intents
and purposes, a possessor, even if physically ousted, is still deemed the Acquisition of possession through succession
legal possessor. (Cequena v Bolante) The rights to the succession are transmitted from the moment of the
death of the decedent.
Art. 532. Possession may be acquired by the same person who is to From that moment, each of his heirs becomes the undivided owner of
enjoy it, by his legal representative, by his agent, or by any person the whole estate left with respect to that portion which might be
without any power whatever: but in the last case, the possession shall adjudicated to him.
not be considered as acquired until the person in whose name the act The inheritance may be accepted or repudiated.
of possession was executed has ratified the same, without prejudice to There is no doubt that an heir can sell whatever right, interest or
the juridical consequences of negotiorum gestio in a proper case. participation he may have in the property under administration, subject
(439a) to the result of said administration.
In case the inheritance is accepted, the possession of the hereditary
By whom possession acquired property is deemed transmitted by operation of law to the heir without
Possession may be acquired: interruption and from the moment of death of the decedent.
1. Personally or by the same person who is to enjoy it; In this inheritance is validly renounced, the heir is deemed never to
2. Thru an authorized person or by his legal representative or by his have possessed the same.
agent, and See book for examples.
3. Thru an unauthorized person or by any person without any power
or authority whatever. Art. 534. On who succeeds by hereditary title shall not suffer the
consequences of the wrongful possession of the decedent, if it is not
Acquisition of possession through another shown that he was aware of the flaws affecting it; but the effects of
Possession acquired by a person personally or thru another may be possession in good faith shall not benefit him except from the date of
exercised by him in his own name or in that of another. But minors and the death of the decedent. (442)
other incapacitated persons need the assistance of their legal
representatives to exercise the rights arising from possession. Effects of bad faith of decedent on heir

44
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

If the decedent was in bad faith, the heir shall not suffer the and he can be compelled to return the property in an action for forcible
consequences of the wrongful possession of the latter because bad entry and must suffer the necessary and natural consequences of his
faith is personal to the decedent and is not deemed transmitted to the lawlessness.
heirs. A party who can prove prior possession, whatever may be the character
The heir suffers the consequences of such possession only from the of the possession, has the security that entitles him to recover such
moment he becomes aware of the flaws affecting the decedents title. possession or to remain on the property even against the owner himself
See book again for examples. until he is lawfully ejected by accion publiciana or accion reivindicatoria.

Case doctrines Art. 537. Acts merely tolerated, and those executed clandestinely and
A possessor in bad faith should not prejudice his successors-in-interest. without the knowledge of the possessor of a thing, or by violence, do
Bad faith is personal and intransmissible. (Escritor v IAC) not affect possession. (444)
Art. 535. Minors and incapacitated persons may acquire the
possession of things; but they need the assistance of their legal Acts which do not give rise to possession
representatives in order to exercise the rights which from the The acts mentioned do not affect possession, i.e. the person in
possession arise in their favor. (443) possession does not lose the same nor does the person who results to
them acquire it. In other words, the true possessor is deemed to have
Acquisition and exercise of rights of possession by minors and incapacitated enjoyed uninterrupted possession.
persons o Force or intimidation as long as there is a possessor who
The persons referred to in the provision are unemancipated minors and objects thereto, such as by suit of forcible entry. The rule does
other persons who have no capacity to act like spendthrifts, deaf-mutes not apply if the possessor makes no objection, withdraws his
who cannot read and write, those under civil interdiction, etc. objection or takes no action whatsoever after initially objecting
Things here are limited to corporeal things only. to the deprivation.
This article refers principally but not exclusively to material occupation. o Acts executed clandestinely and without the knowledge of the
Incapacitated persons may acquire property or rights by prescription possessor which mean that the acts are not public and
either personally or through their parents, guardians or legal reps. Once unknown to the possessor or owner.
possession of a thing is acquired by such persons, there is born the o Acts merely tolerated which do not refer to all kinds of
right of possession. In the exercise of this right, they need the tolerance on the part of the owner or possessor in view of the
assistance of their legal reps. use of the word merely; it means permission, express or tacit,
by virtue of which the acts of possession are performed.
Art. 536. In no case may possession be acquired through force or Hence, it is simply a question of whether permission was given
intimidation as long as there is a possessor who objects thereto. He or not.
who believes that he has an action or a right to deprive another of the Possession of another by mere tolerance is not adverse and no matter
holding of a thing, must invoke the aid of the competent court, if the how long continued, cannot ripen to ownership by prescription.
holder should refuse to deliver the thing. (441a) The mere silence or failure to take any action will not be construed as
abandonment of rights on the part of the real possessor. It is, of course,
Recourse to the courts for the courts to decide whether there has been an abandonment or not.
Every possessor has a right to be respected in his possession. The Possession by tolerance is lawful but becomes illegal when, upon
lawful possessor may use such force as may be reasonably necessary demand to vacate by the legal owner, the possessor refuses to comply
to repel or prevent invasion or usurpation of his property. with such demand.
This article applies to one who believes himself the owner of real
property. If he takes justice into his own hands, he is a mere intruder;

45
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Art. 538. Possession as a fact cannot be recognized at the same time in


two different personalities except in the cases of co-possession. Art 539 Every possessor has a right to be respected in his possession
Should a question arise regarding the fact of possession, the present and should he be disturbed therein he shall be protected in or restored
possessor shall be preferred; if there are two possessors, the one to said possession by the means established by the laws and the Rules
longer in possession; if the dates of the possession are the same, the of Court.
one who presents a title; and if all these conditions are equal, the thing A possessor deprived of his possession through forcible entry
shall be placed in judicial deposit pending determination of its may within ten days from the filing of the complaint present a motion
possession or ownership through proper proceedings. (445) to secure from the competent court, in the action for forcible entry, a
writ of preliminary mandatory injunction to restore him in his
Possession as a fact at the same time in two different personsalities possession. The court shall decide the motion within thirty days from
The word personalities is not synonymous to persons. For example, the filing thereof.
in co-ownership, there are two or more persons, but there is only one
personality. Rights of every possessor
Possession as a fact may exist at the same time in two or more distinct
personalities, but as a general rule, the law will recognize only one as Every possessor, whether in the concept of owner of in the concept of
the actual or real possessor. holder, is given the following rights:
The exception is provided in the cases of co-possession, such as co-
ownership, where the property is possessed at the same time in 1. Right to be respected in his possession;
common by the co-owners also; and possession where the property is 2. Right to be protected in or restored to said possession by legal means
possessed at the same time by two persons, one in the concept of should he be disturbed therein; and
owner and the other, in the concept of holder. 3. Right to secure from a competent court in an action for forcible entry the
In co-possession, there is no conflict of interests of claims among the proper writ to restore him in his possession (Art 428)
parties.
The mere possession of a thing is sufficient to insure respect to the
Preference of possession possessor while no other person appears to show and prove a better
Article 538 applies whether the property is real or personal. In case a right.
dispute arises regarding the fact of possession, the order of preference To all intents and purposes, a possessor even if physically ousted as
is as follows: through force and violence, is still deemed the legal possessor.
1. The present or actual possessor shall be preferred
2. If there are two possessors, the longer in possession; The fact, however, that a person was never in prior physical possession of a
3. If the dates of possession are the same, the possessor with a title; land is of no moment where he has a Torrens Title over the property as prior
i.e. right or document evidencing his right to support his physical possession is necessary only in forcible entry cases.
possession; and
4. If all the above are equal, the fact of possession shall be judicially Reasons for protection
determined, and in the meantime, the thing shall be placed in 1. To aid criminal law (by preserving the peace. Order is best secured by
judicial deposit. protecting a possessor and leaving the true owner to seek his remedy in
a court of law)
2. As part of the law of tort (these rights of action are given in respect of
CHAPTER 3 the immediate and present violation of the rights of the possessor
independently of his rights of property)
EFFECTS OF POSSESSION

46
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

3. As part of the law of property (law does not always known that the pleadings, and an appeal does not operate to change the nature of the
possession in question is unlawful. It would be unjust to cast on every original action
man whose possession is disturbed the burden of proving a flawless Even a mere applicant of public land who is in occupation and in
title) peaceful possession thereof can file an action for forcible entry
Question of ownership is unessential and should be raised by the
Remedies of persons deprived of possession (see discussions in Art 428) defendant in an appropriate action
1. forcible entry or unlawful detainer o Judgment rendered in an action for forcible entry shall not bar
2. accion publiciana an action between the same parties respecting the title to the
3. accion reivindicatoria land or building
4. replevin or manual delivery of personal property o The court has competence to resolve the issue of ownership
but only to determine the issue of priority of possession, as its
In forcible entry and unlawful detainer cases, subject to some decision does not bind the title or affect the ownership of the
exceptions, the immediate execution of the judgment in favor of the property involved (any pronouncement on ownership is
plaintiff is a matter of right and mandatory. provisional)
Considering that the only issue in ejectment is that of rightful The purpose of the law is to protect the person who has actual
possession, damages that could be recovered are those which the possession
plaintiff could have sustained as a mere possessor, or those caused by The plaintiff in an action for forcible entry and detainer cannot succeed
the loss of the use and occupation of the property, and not the damages when it appears that, as between himself and the defendant, the latter
which he may have suffered but which have no direct relation to his loss had possession antedating his own; and to ascertain this, it is proper to
of material possession. look on to the situation as it existed before the first act of spoliation
occurred
Issuance of a writ of preliminary mandatory injunction Legal right of prior possessor is not an issue
In forcible entry actions, the plaintiff must present within ten days from o If the plaintiff can prove prior possession, he may recover
the filing of the complaint a motion to secure from the competent court, possession even against the owner himself.
a writ of preliminary mandatory injunction to restore him in his o If he cant prove prior possession, he has no right of action
possession
even if he should be the owner himself.
In unlawful detainer cases where an appeal is taken, the motion shall be
In case of controverted right, the law requires the parties to preserve the
filed within ten days from the time the appeal is perfected, if the high
status quo until one or the other of them sees fit to invoke the decision
court is satisfied that the lessees appeal is frivolous or dilatory, or the
of a court upon the question of possession and/or possession
lessors appeal is prima facie meritorious.
A forcible entry or unlawful detainer is not suspended, abated, barred or
In an appeal from a lower court in an ejectment case, the issue of
affected by actions filed in the RTC which do not involve physical or de
ownership should not be delved into, for an ejectment action lies even
facto possession
against the owner of a property.
Conditions under which action for forcible entry will lie
Prior peaceful possession of plaintiff required in forcible entry action
Wrongful entrance by one not in possession
Where a dispute over possession arises between two persons, the
o The trespasser does not have to institute a state of war. The
person first having actual possession, as between them, is the one who
act of going on the property and excluding the lawful possessor
is entitled to maintain the action for forcible entry.
therefrom necessarily implies the exertion of force over the
The main issue is possession de facto, independently of any claim of
property, and this is all that is necessary. Under the law,
ownership or possession de jure that either party may set forth in his

47
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

entering upon the premises by strategy or stealth is equally as


obnoxious as entering by force. Mere tax declarations of ownership do not vest or prove ownership of
o The words by force, intimidation, threat, etc include every the property in the declarant nor are even sufficient to sustain a claim
situation or condition under which one person can wrongfully for possession over a land, in the absence of actual possession of the
enter upon real property to exclude another, who has prior same.
possession therefrom. (Banes case) They are merely an indicum of a claim of ownership
Wrongful exclusion of prior possessor Nevertheless, they are good indicia of possession in the concept of
o The foundation of the action is really the forcible exclusion of owner
the original possessor by a person who has entered without Payment of realty tax coupled with actual possession in the concept of
right. owner is one of the most persuasive and positive indicia, which shows
the will or desire of a person to possess with claim of ownership or to
Art 540 Only the possession acquired and enjoyed in the concept of obtain title to the land or property
owner can serve as a title for acquiring dominion.
Case doctrine
Possession as basis for acquiring ownership In order than an action for recovery of possession may prosper, it is
Possession acquired and enjoyed in the concept of owner may ripen into indispensable that he who brings the action fully proves not only his
ownership by means of prescription. ownership but also the identity of the property claimed, by describing
the location, area and boundaries thereof. Insufficient identification of
1. As holder the portion of land claimed in absolute ownership cannot ripen into
Cannot be the basis of prescription ownership. (Serina v Caballero)
So with possession acquired through force or intimidation (Art 536),
merely tolerated or which is not public and is unknown to the Art 541 A possessor in the concept of owner has in his favor the legal
present possessor (Art 537) presumption that he possesses with a just title and he cannot be
2. As equitable mortgage obliged to show or prove it.
Constructive possession over the land cannot ripen into ownership
as it cannot be said to have been acquired and enjoyed in the Possessor in concept of owner presumed with just title
concept of owner Just title does not always mean a document or a written instrument
3. As claimant under a possessory information title (meh) Title is that upon which ownership is based
4. As claimant under a certificate of title Actual or constructive possession under claim of ownership raises the
Mere possession cannot defeat the title of a holder of a registered disputable presumption of ownership. In other words, a possession is
Torrens title to real property presumed ownership until the contrary is shown.
But the true owner of the property may be defeated by an innocent A possessor is presumed to have a just title, and he cannot be obliged
purchaser for value notwithstanding the fraud employed by the to show or prove it.
seller (forger) in securing his title o Reason? To protect the owner from inconvenience, otherwise,
Generally, a forged deed is a nullity and conveys no title. However, he will always have to carry his titles under his arms to show
there are instances when such a document may become the root of them to whoever who wants to see it
a valid title. As when the certificate of title was already transferred NB: Presumption of just title does not apply in acquisitive prescription.
from the name of the true owner to the forger, and while it remained Adverse possessor must prove his just title.
that way, the land was subsequently sold to an innocent purchaser
for value (land titles!) Burden of proving just title
5. As possessor of forest land (not possible!)

48
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

The onus probandi is on the plaintiff who seeks the recovery of property and valid title, there is no need for prescription, ownership is transferred
A person who is not, in fact, in possession cannot acquire a prescriptive once the mode of transfer has been perfected. (Be it by sale, donation,
right to a land by the mere assertion of a right therein. Where the succession, etc).
possessor is really the owner, the fact that a third person questions his
right does not impair said right.
An owner and possessor whose title is true and valid cannot be required Case doctrine
to show that his possession is or has been adverse as against a new In order that a co-owners possession may be deemed adverse to the
claimant who has neither title nor possession. cestui que trusti or the other co-owners, the following elements must
concur:
What are the different kinds of title? 1. That he has perfomrmed unequivocal acts of repudiation amounting
1. Titulo verdadero y valido or true and valid to an ouster of the beneficiary or the other co-owners
This is the title presumed in this provision 2. That such positive acts of repudiation have been made known to
Sufficient to transfer ownership without need of possessing the the beneficiary or the other co-owners
property for the period necessary for acquiring title by prescription 3. That the evidence thereon must be clear and convincing (Aguirre v
2. Titulo justo or just title CA)
For the purposes of prescription, there is just title Art 542 The possession of real property presumes that of movables
o When the adverse claimant came into possession of the therein, so long as it is not shown or proved that they should be
property through one of the modes recognized by law for the excluded.
acquisition of ownership or other real rights,
o but the grantor was not the owner or could not transmit any Possession of real property presumed to include movables
Article 542 refers to material possession only of things, not rights
right
For prescription, just title must be proved, it is never presumed. Possession may be in the concept of owner, of holder, in ones own
name or in anothers, or in good faith or in bad faith
It must be remembered that the burden of proving the status of a
It is normal that movables which are found in an immovable belong to
purchaser in good faith lies upon him who asserts that status. It is
not sufficient to invoke the ordinary presumption of good faith, that the possessor of the latter
is, that everyone is presumed to have acted in good faith, since the If the building is occupied by the lessee, we can suppose the same with
good faith that is here essential is integral with the very status that respect to him because in this case, the possessor is the lessee
must be established. (Aguirre v CA) Again, this is a mere presumption.
3. Titulo colorado or colorable title
One which a person has when he buys a thing in good faith, from Art 543 Each one of the participants of a thing possessed in common
one who is not the owner but whom he believes to be the owner shall be deemed to have exclusively possessed the part which may be
The just title required for acquisitive prescription is titulo Colorado allotted to him upon the division thereof, for the entire period during
4. Titulo putativo or putative title which the co-possession lasted. Interruption in the possession of the
whole or a part of a thing possessed in common shall be to the
One which a person believes he has title but in fact he has not
prejudice of all the possessors. However, in case of civil interruption,
because there was no mode of acquiring ownership
the Rules of Court shall apply.
As when one is in possession of a thing in the mistaken belief that it
had been bequeathed to him Exclusive possession of previous co-owner deemed continuous
Article 543 speaks of co-possession of a thing, not of co-ownership
Whats the difference between titulo Colorado and titulo verdadero y valido?
Nevertheless, its principle is applicable to co-possession of a real right
In Colorado, there is a need for prescription to transfer ownership. In true
Co-possession can be over a thing or a right

49
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

All participants of a thing possessed in common constitute only one A notice for adverse claim does NOT interrupt
personality and the personality ceases when there is a partition. prescription (Heirs of Arzadon-Crisologo v Ranon)
From that moment of cessation, the personality of each participant Interruption must refer to the whole thing itself or part of it and not to a
begins. part or right of a co-possessor.
Each co-possessor is deemed (not merely presumed!) to have In a co-possession, there is only one thing and many possessors. If the
possessed exclusively and continuously during the period of co- right of a co-possessor is contested, he alone shall be prejudiced.
possession the part assigned to him in the division. With respect to the thing, the prejudice shall be against all.
The effects of the division retroact to the commencement of the co-
possession. Art 544 A possessor in good faith is entitled to the fruits received
But the division shall be without prejudice to the rights of creditors. before the possession is legally interrupted.
Natural and industrial fruits are considered received from the
Harry, Ron, and Hermione have been co-possessors in the concept of time they are gathered or severed.
owners of a 15 hectare parcel of land until they divided the property equally Civil fruits are deemed to accrue daily and belong to the
on the 8th year. If on the 4th year after the division, Draco claims ownership of possessor in good faith in that proportion.
the portion allotted to Harry, Harry can assert title by acquisitive prescription
through possession for 10 years, for he is deemed to have possessed his Art 545 If at the time the good faith ceases, there should be any natural
portion exclusively and continuously for a period of 12 years. or industrial fruits, the possessor shall have a right to a part of the
expenses of cultivation, and to a part of the net harvest, both in
Interruption in possession of the thing proportion to the time of possession.
Both the benefits and the prejudices that might have taken place during The charges shall be divided on the same basis by the two
the co-possession shall attach to each of the co-participants possessors.
Prescription obtained by a co-possessor shall benefit the others The owner of the thing may, should he so desire, give the
Interruption in the possession of the whole or part of a thing shall be to possessor in good faith the right to finish the cultivation and gathering
the prejudice of all the possessors. of the growing fruits, as an indemnity for his part of the expenses of
Possession is interrupted for purposes of prescription either cultivation and the net proceeds; the possessor in good faith who for
o Naturally (when through any cause it should cease for more any reason whatever should refuse to accept this concession, shall
lose the right to be indemnified in any other manner.
than 1 year)
o Civilly (when the interruption is produced by judicial summons
The fruits of a thing generally belong to the owner (Art 441) but a
to the possessor)
possessor in good faith is entitled to the fruits received until good faith
In civil interruption, only those possessors served with
ceases and bad faith begins.
judicial summons are affected.
Legal interruption of possession in good faith takes place upon service
For civil interruption to take place, the possessor must
have received judicial summons. of judicial summons to the possessor.
When will summons not be deemed to have been o All fruits that the possessor may receive from the time that he
issued and shall not give rise to interruption? is summoned, or when he answers the complaint, must be
1. If it should be void for lack of legal solemnities, or delivered or paid by him to the owner or lawful possessor.
2. If the plaintiff should desist from the complaint or Whenever there is cessation of good faith in the eyes of the law,
should all the proceedings to lapse, or whether by reason of the filing of a complaint or not, possession in good
3. If the possessor should be absolved from the faith should be deemed legally interrupted from such cessation and not
complaint. merely from the service of judicial summons.

50
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

When the owner or possessor with a better right comes along, when he reasonable rent for the
becomes aware that what he had taken for granted is at least doubtful, term of possession.
and when he learns the grounds in support of the adverse claim, good
faith ceases. But entitled to
Possessor in bad faith is not entitled to the fruits. He has the duty to necessary expenses
reimburse the fruits received including that which the legitimate for preservation,
possessor could have received. cultivation, and
The right of the possessor in good faith is limited to the fruits, referring gathering of fruits.
to natural, industrial and civil fruits (Art 441). Other things (building)
belong to the owner of the land. b. Pending Owner has 2 options:
No rights, not even
When fruits considered received First: Pro-rating reimbursement of
1. For natural and industrial fruits from the time they are gathered or (based on period of expenses for cultivation
severed. Fruits gathered before legal interruption belong to the possession) between (because by right of
possessor in good faith. possessor and owner accession, all fruits
2. For civil fruits their accrual, not their actual receipt, shall determine of: expenses, net belong to owner
when they are considered received at the time the good faith is legally harvest and charges without need to pay
interrupted. They are deemed to accrue daily and belong to the indemnity)
possessor in good faith in that proportion.
Second: To allow Must pay damages as
Kinds of Fruits Possessor in Good Possessor in Bad Faith possessor to stay in reasonable rent for the
Faith possession until after term of possession
1. Civil fruits Entitled to fruits from Not entitled to fruits. all fruits are gathered
start of possession (which shall serve as
until legal interruption Must pay damages as the indemnity for
rental from time expenses)
possession started until
possession is finally Proportionate division of fruits and expenses
defeated Art 545 does not apply when the possessor is in bad faith, the fruits are
2. Natural/Industrial civil, or the fruits are natural or industrial but they have been gathered or
Fruits severed when good faith ceases
A possessor in bad faith has no right whatsoever to the fruits, gathered
a. Gathered Right to retain fruits Must account for fruits or pending, except only necessary expenses for gathered fruit (Art 443,
and return value of: 449). Since civil fruits are produced day by day, Art 545 does not apply
fruits actually received, to them.
and fruits which the In the case of fruits already gathered at the time good faith ceases, it is
legal possessor could Art 544 that is applicable.
have received with due If there are pending natural and industrial fruits at the time good faith
care and diligence. ceases, the two possessors shall share in the expense of cultivation and
the charges (expenses made not on the property itself but on account of
Must pay damages as

51
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

it, such as taxes, interest on mortgages) in proportion to the time of thereby, and that the lawful possessor does not prefer to retain them
possession. by paying the value they may have at the time he enters into
They will also share on the fruits in proportion to the time of possession possession.
as well.
What if there are no fruits or the fruits are less than expenses? Expenses Possessor in Good Possessor in Bad Faith
o If there is no net harvest because there are no fruits or the Faith
fruits are less than the expenses, art 545 wont apply. If the Necessary Expenses Entitled to Entitled to
fruits are merely insufficient, the same should be divided in reimbursement reimbursement
proportion to their respective expenses. Right of retention No right of retention;
o No fruits? Each should bear his own expenses subject to the pending full must vacate property
right of the possessor in good faith to be refunded for reimbursements (recourse is to file
necessary expenses under Art 546, unless the owner of new collection case)
possessor exercises his option referred to above. Liable for damages as
reasonable rent for
Art 546 Necessary expenses shall be refunded to every possessor; but period of possession
only the possessor in good faith may retain the thing until he has Useful expenses Owner has 2 options: No rights
reimbursed therefore.
Useful expenses shall be refunded only to the possessor in Option 1:
good faith with the same retention, the person who has defeated him in reimbursement of
the possession having the option of refunding the amount of the either (a) amount spent
expenses or of paying the increase in value which the thing may have or (b) increase in value
acquired by reason thereof. with right of retention
with full payment.
Art 547 If the useful improvements can be removed without damage to
the principal thing, the possessor in good faith may remove them, Option 2: To allow
unless the person who recovers the possession exercises the option possessor to remove
under paragraph 2 of the preceding article. provided no substantial
damage or injury is
Art 548 Expenses for pure luxury or mere pleasure shall not be caused
refunded to the possessor in good faith; but he may remove the Luxurious expenses Owner has 2 options: Owner has 2 options:
ornaments with which he has embellished the principal thing if it
suffers no injury thereby, and if his successor in the possession does Option 1: to allow Option 1: to allow
not prefer to refund the amount expended. possessor to remove possessor to remove
ornaments if the ornaments if the
Art 549 The possessor in bad faith shall reimburse the fruits received principal suffers no principal suffers no
and those which the legitimate possessor could have received, and injury injury
shall have a right only to the expenses mentioned in paragraph 1 of
Article 546 and in Article 443. The expenses incurred in improvements Option 2: to retain the Option 2: to retain the
for pure luxury or mere pleasure shall not be refunded to the ornament by refunding ornament by refunding
possessor in bad faith, but he may remove the objects for which such the amount spent for the value of the
expenses have been incurred, provided that the thing suffers no injury the ornament ornament at the time

52
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

owner enters into Improvements caused by nature or time


possession (which Article 551 covers all the natural accessions mentioned in Articles 457
means depreciated to 465 which must follow the ownership of the principal thing, and
value) generally, all improvements that are not due to the will of the possessor.
Deterioration/loss No liability unless due Always liable whether The former possessor got the benefits from the property during his
to fraudulent intent or before or after service possession. It is but just that the improvements mentioned which take
negligence after of judicial summons, place after the possession is recovered inure to the owner or lawful
service of judicial for any cause, even possessor. Hence, he should not pay for them.
summons fortuitous event.
Art. 552. A possessor in good faith shall not be liable for the
deterioration or loss of the thing possessed, except in cases in which it
Necessary expenses are made for the preservation of the thing of those is proved that he has acted with fraudulent intent or negligence, after
which seek to prevent the waste, deterioration, or loss of the thing; or the judicial summons.
those without which the thing would deteriorate or be lost. A possessor in bad faith shall be liable for deterioration or loss
Useful expenses are expenses which add value to a thing, or augment in every case, even if caused by a fortuitous event. (457a)
its income.
Luxurious expenses are expenses not necessary for the preservation of Art. 553. One who recovers possession shall not be obliged to pay for
a thing nor do they increase its productivity although they add value to improvements which have ceased to exist at the time he takes
the thing, but are incurred merely to embellish the thing and for the possession of the thing. (458)
convenience or enjoyment of particular possessors.
Improvements which have ceased to exist
The improvements referred to were enjoyed by the possessor alone.
Case doctrine Having ceased to exist, the owner or lawful possessor who came too
A possessor in bad faith is entitled to be reimbursed for her expenses in late cannot benefit from them. But he is liable for necessary expenses
restoring a house to its original condition after it had been partly even if the thing for which they were incurred no longer exists.
damaged by fire, because such expenses are necessary, and under Necessary expenses are not considered improvements.
546, are to be refunded even to possessors in bad faith.
A builder in bad faith, under 449, is not entitled to reimbursement. But Art. 554. A present possessor who shows his possession at some
449 is a rule of accession, which is not applicable where a new house previous time, is presumed to have held possession also during the
was not built on the land of another but only repairs were made on a intermediate period, in the absence of proof to the contrary. (459)
house that had been partly destroyed by fire. This latter case comes
under 546 which provides for the refund of necessary expenses to every Presumption of possession during intervening period
possessor. (Cosio v Palileo) This article contemplates a situation where a present possessor is able
to prove his possession of a property at a prior period but not his
Art. 550. The costs of litigation over the property shall be borne by possession during the intervening period.
every possessor. (n) He is presumed to have possessed the property continuously without
interruption, unless the contrary is proved.
Art. 551. Improvements caused by nature or time shall always insure to The presumption is useful for purposes of prescription.
the benefit of the person who has succeeded in recovering
possession. (456) Art. 555. A possessor may lose his possession:
1. By the abandonment of the thing;

53
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

2. By an assignment made to another either by onerous or The intention to abandon implies a departure, with the avowed intent of
gratuitous title; never returning, resuming or claiming the right and the interest that have
3. By the destruction or total loss of the thing, or because it goes been abandoned. (Castellano v Francisco)
out of commerce;
4. By the possession of another, subject to the provisions of Assignment?
Article 537, if the new possession has lasted longer than one Assignment is understood to mean the complete transmission of the
year. But the real right of possession is not lost till after the thing or right to another by any lawful manner.
lapse of ten years. (460a) It may be onerous or by gratuitous title.
The effect is that he who was the owner or possessor is no longer so.
Modes of losing possession Abandonment is always gratuitous.
This provision applies to both real and personal property except no. 4
which obviously refers only to personal property (obvious raw eh, sabi Destruction, total loss, or withdrawal from commerce
ni de Leon. Yabang naman niya). The next article is expressly made Destruction or total loss covers not only that which is caused voluntarily
applicable only to movables. or intentionally but also that which is caused by accident.
A thing is lost when it perishes, or goes out of commerce, or disappears,
What is abandonment? etc. (Art 1189)
Abandonment is the voluntary renunciation of all rights which a person
has over a thing thereby allowing a third person to acquire ownership or Possession of another for more than one year
possession thereof by means of occupancy. This refers to possession de facto (as a fact or material possession) and
The abandoner may be the owner or a mere possessor but the latter not de jure (legal right or real right of possession)
obviously cannot abandon ownership which belongs to another. After one year, the former possessor can no longer bring any action for
(obviously raw!) forcible entry or unlawful detainer.
Since abandonment involves the renunciation of a property right, the Possession by mere tolerance even for over a year does not affect
abandoner must have a right to the thing possessed and the legal possession de facto.
capacity to renounce it.
After 10 years, the possessor or owner may bring an accion publiciana
An owner of property cannot be held to have abandoned the same until or reivindicatoria to recover possession de jure unless he is barred by
at least he has some knowledge of the loss of its possession or of the prescription.
thing, and a thing cannot be considered abandoned under the law until
the spes recuperandi (hope of recovery) is gone and the animus Recovery by lawful owner or possessor
revertendi (intention to return) is finally given up.
Possession may also be lost when it is recovered from the person in
By voluntary abandonment, a thing becomes without a owner or possession by the lawful owner in a reivindicatory action or by the lawful
possessor and is converted into res nullius and may thus be acquired by possessor in an action to recover the better right of possession.
a third person by occupation.
Abandonment which converts the thing into res nullius can hardly apply Art. 556. The possession of movables is not deemed lost so long as
to land. they remain under the control of the possessor, even though for the
Castellano v Francisco stated that abandonment requires: time being he may not know their whereabouts. (461)
1. A clear and absolute intention to renounce a right or a claim or to
abandon a right or property, and Loss of possession of movables
2. An external act by which that intention is expressed or carried into The possession of movables shall be deemed lost when they cease to
effect. be under the control of the possessor either becaue:

54
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

o They have come into the possession of a third person; or Acts relating to possession of a mere holder do not bind or prejudice the
o Although, they have not been taken by another, possessor in the concept of owner unless said acts were previously
The possessor has completely no idea of their authorized or subsequently ratified by the latter.
whereabouts or location (the pet rat has been missing Possession may be acquired for another by a stranger provided there
for sometime; or be subsequent ratification. (Art 532)
Even if known, they cannot be recovered, whether as
a matter of fact (an unopened box of pastillas has Art. 559. The possession of movable property acquired in good faith is
been dropped in a deep lake) or of law (a movable equivalent to a title. Nevertheless, one who has lost any movable or
lost by prescription). has been unlawfully deprived thereof may recover it from the person in
Possession is not lost by the mere fact that the possessor does not possession of the same.
know for the time being the precise whereabout of a specific movable If the possessor of a movable lost or which the owner has
when he has not given up all hope of finding it (like a ring misplaced or been unlawfully deprived, has acquired it in good faith at a public sale,
lost in particular vicinity). In this case, the possessor has not lost his the owner cannot obtain its return without reimbursing the price paid
legal right to the object. therefor. (464a)
o He retains his juridical control of the thing which remains in his
patrimony. Right of possessor who acquires movable claimed by another
If the possession of a movable property who acquired in bad faith, no
Art. 557. The possession of immovables and of real rights is not right thereto is acquired by the possessor. The property may be
deemed lost, or transferred for purposes of prescription to the recovered by the true owner or possessor without reimbursement.
prejudice of third persons, except in accordance with the provisions of If the acquisition was in good faith, here are the rules:
the Mortgage Law and the Land Registration laws. (462a) o Possession in good faith of a movable is presumed ownership. It is
equivalent to title. This is known as the doctrine of irrrevindicability.
Loss of possession of immovables and real rights with respect to third No further proof is necessary.
persons o The possessors title, however, is not absolute. It is equivalent to
Third persons are not prejudiced except in accordance with the title but is not title itself. It is merely presumptive because it can be
provisions of the mortgage law and the registration law. defeated by the true owner.
Against a recorded title, ordinary prescription of ownership or real rights These are the two exceptions to the general rule of irrevindicability. An
shall not take place to the prejudice of a third person, except in virtue of owner can recover in these two instances:
another title also recorded and the time shall begin to run from the 1. When one has lost the movable, or
recording of the latter. 2. When one has been unlawfully deprived.
He may recover without reimbursement. But if the thing was
Art. 558. Acts relating to possession, executed or agreed to by one who sold at a public sale, the owner must reimburse the buyer.
possesses a thing belonging to another as a mere holder to enjoy or These are the exceptions to the exceptions. Even when an owner has
keep it, in any character, do not bind or prejudice the owner, unless he lost or has been unlawfully deprived, he still cannot recover in these
gave said holder express authority to do such acts, or ratifies them instances:
subsequently. (463) 1. When the sale is made at merchants stores, fairs or markets.
2. When the owner of the movable is, by his conduct, precluded
Possessory acts of a mere holder from denying the sellers authority to sell;
The possessor referred to in this article is the same possessor 3. Where the law enables the apparent owner to dispose of the
mentioned in Article 525. movables as if he were the true owner thereof
4. Where the sale is sanctioned by statutory or judicial authority

55
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

5. Where the seller has a voidable title which has not been 2. Domesticated or tamed, or animals which are wild or savage by
avoided at the time of the sale to the buyer in good faith for nature but have been subdued and made use of by man and
value and without notice of the sellers defect of title become accustomed to live in a tamed condition (tiger ni Chavit)
(remember CLV!) 3. Domestic or tame, or any of the various animals which live and are
6. Where recovery is no longer possible because of prescription born and reared, under the control and care of man, lacking the
7. Where the possessor becomes the owner of the thing in instinct to roam freely (dog, cat, carabao, cow)
accordance with the principle of finders keepers Wild animals may be the object of hunting. They are possessed only if
they are under ones control. Possession of wild animals are lost when
Case doctrines they regain their freedom or come under anothers control.
Non-payment does not void a sale. It is perfected upon the meeting of Domesticated animals are possessed if they habitually return to the
the minds. Hence, ownership shall pass from the vendor to the vendee premises of the possessor.
upon the actual or constructive delivery of the thing sold. It does not
constitute unlawful deprivation of personal property. It is a mere Art. 561. One who recovers, according to law, possession unjustly lost,
voidable sale, and unless it is avoided before the execution of the shall be deemed for all purposes which may redound to his benefit, to
second sale, then the second sale is valid. (EDCA v Santos) have enjoyed it without interruption. (466)
Purchaser in good faith of a chattel or movable property is entitled to be
respected and protected in his possession as if he were the true owner This article applies to both possession in good faith as well as to
thereof until a competent court rules otherwise. In the meantime, as the possession in bad faith, but only if beneficial to the possessor (like for
true owner, the possessor in good faith cannot be compelled to purposes of prescription)
surrender possession nor to be required to institute an action for the The recovery of possession must be according to law through legal
recovery of the chattel. (Edu v Gomez) means; otherwise, the benefit of continuous and uninterrupted
A third party who acquired in good faith a stolen vehicle and registered it possession during the intervening period cannot be invoked.
in his own name cannot lawfully refuse to return it to the true owner and
insist upon reimbursement before delivery. (Aznar v Yapdiangco TITLE VI - USUFRUCT
stealing equals unlawful deprivation)
The owner of a ring pledged to a pawnshop by one to whom he has CHAPTER ONE: USUFRUCT IN GENERAL
entrusted it to be sold on commission can recover it from the pawnshop.
(Dizon v Suntay) Art. 562. Usufruct gives a right to enjoy the property of another with the
obligation of preserving its form and substance, unless the title
constituting it or the law otherwise provides. (467)
Art. 560. Wild animals are possessed only while they are under one's
control; domesticated or tamed animals are considered domestic or What is usufruct?
tame if they retain the habit of returning to the premises of the 1. A right to enjoy the property of another with the obligation of preserving
possessor. (465) its form and substance
2. Right to enjoy the property of another temporarily, including both the jus
Possession of animals utendi and jus fruendi, with the owner retaining the jus disponendi
Animals may be: 3. In essence, usufruct is nothing else but simply allowing one to enjoy
1. Wild or animals living in a state of nature independently of and anothers propery
without the aid and care of man (great white shark, ornate
wobbegong, brazilian slug) What are the characteristics of usufruct?

56
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

1. It is a real right of use and enjoyment, (whether registered or not in the Cause More or less passive Active owner or lessor
Registry of Property. Registering will affect and bind third persons) owner who allows the who makes the lessee
2. Of Temporary duration; usufructuary to enjoy enjoy
3. Transmissible; and the object
4. May be constituted on real or personal property, consumable or non- Repairs and taxes Usufructuary to pay Lessee not generally
consumable, tangible or intangible, the ownership of which is vested in under the obligation to
another pay taxes or undertake
repairs
A person cannot create a usufruct over his own property and at the
same time retain ownership of the same
A usufruct is essentially jus in re aliena, and to be a usufructuary of
ones own property is in law a contradiction in terms and a conceptual Art. 563. Usufruct is constituted by law, by the will of private persons
absurdity expressed in acts inter vivos or in a last will and testament, and by
The essential requisite of usufruct is the right to enjoy the property of prescription. (468)
another Creation of usufruct
The usufructuary is entitled to all the fruits of the property with the Usufruct may e classified according to how it is created into:
obligation to preserve its form and substance 1. Legal, or that created or declared by law
However, the obligation of the usufructuary to preserve is only 2. Voluntary, or that created by will of the parties (an act inter vivos or an
accidental for the law or the will of the parties may modify or even act mortis causa)
eliminate it 3. Mixed or that acquired by prescription
Two classifications based on whether or not impairment of object is
allowed: Art. 564. Usufruct may be constituted on the whole or a part of the
1. Normal, perfect or regular invovlves non-consumable things fruits of the thing, in favor of one more persons, simultaneously or
which the usufructuary can enjoy without altering the form or successively, and in every case from or to a certain day, purely or
substance, through they may detoriorate or diminish by time or by conditionally. It may also be constituted on a right, provided it is not
use strictly personal or intransmissible. (469)
2. Abnormal, imperfect, irregular or quasi-usufruct involves things
which would be useless to the usufructuary unless they are Kinds of usufruct defined
consumed or expended, such as money, grain, liquors, etc Usufruct may be
1. As to extent of object
Usufruct Lease a. Total (constituted on the whole of a thing)
Nature of right Real Personal b. Partial (constituted only on a part of a thing)
Creator of right Owner of agent May not be the owner 2. As to number of beneficiaries
a. Simple (only one)
Origin May be by law, by By contract
b. Multiple (several usufructuaries)
contract, by will of
i. Simultaneous, or
testator, or by
ii. Successive
prescription
3. As to effectivity or extinguishment
Extent of enjoyment All the fruits and all the Certain uses only
a. Pure
uses and benefits of the (those stipulated)
b. With a term (may be suspensive or resolutory)
entire property
c. Conditional (may be suspensive or resolutory)
(generally)

57
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

4. As to subject matter b. In a usufruct to recover property or a real right, to bring the


a. Over things (tangible property) action and to oblige the owner thereof to give him proper
b. Over rights (intangible property which are not authority and necessary proof, and
intransmissible) c. In a usufruct of part of a common property, to exercise all
the rights pertaining to the co-owner with respect to the
Art. 565. The rights and obligations of the usufructuary shall be those administration and collection of fruits or interests from the
provided in the title constituting the usufruct; in default of such title, or property
in case it is deficient, the provisions contained in the two following 3. As to advances and damages
Chapters shall be observed. (470) a. To be reimbursed for indispensable extraordinary repairs
made by him in an amount equal to the increase in value
In case of conflict between the will of the person creating the usufruct which the property may have acquired by reason of such
and the Civil code, the former prevails. repairs
b. To be reimbursed for taxes on the capital advanced by
CHAPTER TWO him, and
RIGHTS OF THE USUFRUCTUARY c. To be indemnified for damages caused to him by the
naked owner.
Art. 566. The usufructuary shall be entitled to all the natural, industrial
and civil fruits of the property in usufruct. With respect to hidden The usufructuary is given the right to enjoy the property in usufruct and
treasure which may be found on the land or tenement, he shall be he is entitled to the fruits. The usufructuary has the right to receive all
considered a stranger. (471) the fruits except:
a. where the usufruct is constituted only on a part of the fruits
Classifications of the rights of the usufructuary of a thing or
1. As to the thing and its fruits b. where there is an agreement to the contrary.
a. To receive the fruits of the property in usufruct and half of The naked owner retains and can exercise all the rights as owner over
the hidden treasure he accidentally finds on the property the property limited only by the right of enjoyment of the usufructuary.
b. To enjoy any increase which the thing in usufruct may Products which when taken from the property diminishes its substance
acquire through accession are not to be treated as fruits. They form part of the capital and belong
c. To personally enjoy the thing in usufruct or lease it to to the naked owner, and not to the usufructuary in the absence of a
another contrary intent between the parties.
d. To make on the property in usufruct such improvements or The usufructuary is not entitled to any hidden treasure because its not
expenses he may deem property and to remove the considered as fruits. However, as a stranger, he is entitled to if he is
improvements provided no damage is caused to the the finder.
property
e. To set-off the improvements he may have made on the Art. 567. Natural or industrial fruits growing at the time the usufruct
property against any damage to the same begins, belong to the usufructuary.
f. To retain the thing until he is reimbursed for advances for Those growing at the time the usufruct terminates, belong to
extraordinary expenses and taxes on the capital the owner.
2. As to the usufruct itself In the preceding cases, the usufructuary, at the beginning of
a. To alienate (or mortgage) the right of usufruct except the usufruct, has no obligation to refund to the owner any expenses
parental usufruct incurred; but the owner shall be obliged to reimburse at the
termination of the usufruct, from the proceeds of the growing fruits,

58
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

the ordinary expenses of cultivation, for seed, and other similar interest on bonds or securities payable to bearer, each payment due
expenses incurred by the usufructuary. shall be considered as the proceeds or fruits of such right.
The provisions of this article shall not prejudice the rights of Whenever it consists in the enjoyment of benefits accruing
third persons, acquired either at the beginning or at the termination of from a participation in any industrial or commercial enterprise, the date
the usufruct. (472) of the distribution of which is not fixed, such benefits shall have the
same character.
Right of the usufructuary to pending natural and industrial fruits In either case they shall be distributed as civil fruits, and shall
This article does not apply to civil fruits. be applied in the manner prescribed in the preceding article. (475)

For fruits growing at the beginning of usufruct, they belong to the Usufruct constituted on certain rights
usufructuary who is not bound to refund to the owner the expenses of Every benefit or payment shall be considered and distributed as civil
cultivation and production incurred. fruit of such right.
o However, in case the expenses were incurred by innocent third Payment and benefits that accrue after the termination of the usufruct
persons, the usufructuary under Art 443, pursuant to the last belong to the owner.
paragraph of Art 567, has the obligation to pay the expenses The date when the benefits accrue determines whether they should
made. belong to the usufructuary or to the owner. Art 570 applies whether or
For fruits growing at the termination of the usufruct, they belong to the not the date of distribution of benefits is fixed.
owner but he is bound to reimburse the usufructuary the ordinary
cultivation expenses out of the fruits received. Case doctrine
Manresa opines that if at the termination of the usufruct, force majeure A stock dividend is considered civil fruit and belongs to the usufructuary.
should prevent the usufructuary from gathering the fruits, said fruits (Bachrach v Seifert)
shall belong to him and not the naked owner.

Art. 568. If the usufructuary has leased the lands or tenements given in Art. 571. The usufructuary shall have the right to enjoy any increase
usufruct, and the usufruct should expire before the termination of the which the thing in usufruct may acquire through accession, the
lease, he or his heirs and successors shall receive only the servitudes established in its favor, and, in general, all the benefits
proportionate share of the rent that must be paid by the lessee. (473) inherent therein. (479)

Art. 569. Civil fruits are deemed to accrue daily, and belong to the Extent of rights of usufructuary
usufructuary in proportion to the time the usufruct may last. (474) The usufructuary is generally entitled to all the benefits that the thing in
usufruct can give including any increase by accession and servitudes
Lease by the usufrucutary established in his favor.
The usufructuary may lease the property in usufruct to another. Reason is that usufruct covers the entire jus fruendi and jus utendi.
If the usufrcut should expire before the termination of the lease, the
usufructuary or his heirs and successors are entitled only to the rents
corresponding to the duration of the usufruct. The rents for the Art. 572. The usufructuary may personally enjoy the thing in usufruct,
remaining period of the lease belong to the owner. lease it to another, or alienate his right of usufruct, even by a
gratuitous title; but all the contracts he may enter into as such
Art. 570. Whenever a usufruct is constituted on the right to receive a usufructuary shall terminate upon the expiration of the usufruct,
rent or periodical pension, whether in money or in fruits, or in the saving leases of rural lands, which shall be considered as subsisting
during the agricultural year. (480)

59
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Usufruct on things which gradually deteriorate


Transactions by the usufructuary This article gives an instance of abnormal usufruct because in the
with respect to the thing in usufruct, he may lease it even without the enjoyment of the property the usufructuary cannot preserve its form or
owners consent but not being the owner, the usufructuary cannot substance.
alienate, pledge or mortgage the thing itself. He may sell future crops Here the thing gradually deteriorates through wear and tear or normal
subject to the rule that those ungathered at the time when the usufruct use.
terminates belong to the owner. The usufructuary is not responsible for the deterioration due to wear and
when the things given in usufruct cannot be used without being tear nor is he required to make any repairs to restore it to its formal
consumed or were appraised when delivered, the usufructuary may condition. He needs only to return the thing at the termination of the
dispose of them. usufruct in the condition it may be at that time.
With respect to the right of usufruct, since the usufructuary is the owner The usufructuary is liable for damage suffered by the thing by reason of
of the right itselt, he may alienate, pledge or mortgage it, even by his fraud or negligence although such liability may be set-off against the
gratuitous title. improvements he may have made on the property.
o But the legal usufruct of the parent over his or her The usufructuary does not answer for deterioration due to a fortuitous
unemancipated children cannot be alienated, pledged, or event. He is, however, obligated to make the ordinary repairs needed by
mortgaged for the right is personal and intransmissible the thing.
burdened as it is by important obligations of the parent for the
benefit of the children. Art. 574. Whenever the usufruct includes things which cannot be used
o A usufruct given in consideration of the person of the without being consumed, the usufructuary shall have the right to make
usufructuary to last during his lifetime is also personal, and use of them under the obligation of paying their appraised value at the
therefore, intransmissible. termination of the usufruct, if they were appraised when delivered. In
o As a rule, all contracts entered into by the usufructuary shall case they were not appraised, he shall have the right to return at the
terminate upon the expiration of the usufruct or earlier, except same quantity and quality, or pay their current price at the time the
rural leases which continue during the agricultural year. usufruct ceases. (482)

Case doctrine Usufruct on consumable things


A usufructuary of rents, as a corollary to the right to all the rents, to This is another instance of abnormal usufruct because the thing in
choose the tenant, and to fix the amount of the rent, necessarily has the usufruct cannot be used without being consumed, like money (but thats
right to choose himself as the tenant, provided that the obligations he really a simple loan, where the usufructuary can deal with the money as
has assumed towards the owner of the property are fulfilled. (Fabie v owner.)
David) The usufructuary shall have the right to make use of the consumable
thing.
Art. 573. Whenever the usufruct includes things which, without being At the termination of the usufruct, he must:
consumed, gradually deteriorate through wear and tear, the 1. Pay its appraised valuel or
usufructuary shall have the right to make use thereof in accordance 2. If there was no appraisal made, either:
with the purpose for which they are intended, and shall not be obliged a. Return the same quantity and quality, or
to return them at the termination of the usufruct except in their b. Pay its current price at such termination.
condition at that time; but he shall be obliged to indemnify the owner
for any deterioration they may have suffered by reason of his fraud or Art. 575. The usufructuary of fruit-bearing trees and shrubs may make
negligence. (481) use of the dead trunks, and even of those cut off or uprooted by
accident, under the obligation to replace them with new plants. (483a)

60
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

The woodland may be a copse or may consist of timber for building.


Art. 576. If in consequence of a calamity or extraordinary event, the The usufructuary may fell or cut trees as the owner was in the habit of
trees or shrubs shall have disappeared in such considerable number doing or in accordance with the customs of the place as to manner,
that it would not be possible or it would be too burdensome to replace amount and season. In any case, he must not prejudice the
them, the usufructuary may leave the dead, fallen or uprooted trunks at preservation of the land.
the disposal of the owner, and demand that the latter remove them and The usufructuary cannot cut down trees other than as mentioned above
clear the land. (484a) unless it be for repair or improvement of the things in usufruct but in
such case, the owner must be informed of the necessity for the work.
Usufruct on fruit-bearing trees and shrubs In nurseries, the usufructuary may make the necessary thinnings in
The usufructuary is given the right to make use of dead trunks and order that the remaining trees may properly grow.
those cut-off or uprooted by accident but he must place them with new
plants because he has the obligation to preserve the form or substance Art. 578. The usufructuary of an action to recover real property or a real
of the property in usufruct. right, or any movable property, has the right to bring the action and to
Of course, the usufructuary has no obligation to replace with new plants, oblige the owner thereof to give him the authority for this purpose and
the dead trees or shrubs already existing at the beginning of the to furnish him whatever proof he may have. If in consequence of the
usufruct. enforcement of the action he acquires the thing claimed, the usufruct
Under article 576, the usufructuary is not responsible for dead, fallen or shall be limited to the fruits, the dominion remaining with the owner.
uprooted trunks caused by calamity or extra-ordinary events. If it would (486)
not be possible or be too burdensome to replace them, he may demand
that the owner remove them and clear the land. He may use the trunks Usufruct of judicial action to recover
but he is required to replace them with new plants under Article 575. This article applies if the purpose of the action is to recover real property
If replacing the trunks could not be too burdensome, the usufructuary or personal property or real right over real or personal property
must replace them, whether or not he makes use of them. The action may be instituted in the name of the usufructuary (vs an
agent who institutes the action in the name of the principal)
Art. 577. The usufructuary of woodland may enjoy all the benefits The usufructuary may oblige the owner to give him the necessary
which it may produce according to its nature. authority to bring the action
If the woodland is a copse or consists of timber for building, In case of favorable judgment, the usufruct shall be limited to the fruits,
the usufructuary may do such ordinary cutting or felling as the owner with the naked ownership belonging to the owner. With the termination
was in the habit of doing, and in default of this, he may do so in of the case, the usufruct of the action comes to an end.
accordance with the custom of the place, as to the manner, amount
and season.
In any case the felling or cutting of trees shall be made in such Art. 579. The usufructuary may make on the property held in usufruct
manner as not to prejudice the preservation of the land. such useful improvements or expenses for mere pleasure as he may
In nurseries, the usufructuary may make the necessary deem proper, provided he does not alter its form or substance; but he
thinnings in order that the remaining trees may properly grow. shall have no right to be indemnified therefor. He may, however,
With the exception of the provisions of the preceding remove such improvements, should it be possible to do so without
paragraphs, the usufructuary cannot cut down trees unless it be to damage to the property. (487)
restore or improve some of the things in usufruct, and in such case
shall first inform the owner of the necessity for the work. (485) What happens when a usufructuary makes useful or luxurious expenses?
The usufructuary has the right to make improvements, useful or
Usufruct on woodland and nurseries luxurious, as he may deem proper.

61
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

What are the rules? o the damage to the same was caused through the fault of the
1. He must not alter the form or substance of the property, usufructuary.
2. He may remove the improvements only if it is possible to do so If the damage exceeds the value of the improvements, the usufructuary
without damage to the property is liable for the difference as indemnity
3. He has no right to be indemnified for the improvements if he does If the value of the improvements exceeds the damage, he may remove
not exercise his right to remove the portion of the improvements representing the excess in value if this
o He cannot invoke the rights of a possessor in good faith in can be done without injury to the property, otherwise, the excess in
the concept of owner value accrues to the owner.
4. If the improvements cannot be removed without damage, he may
set-off the same against any damage caused by him to the property Art. 581. The owner of property the usufruct of which is held by
(Art 580) another, may alienate it, but he cannot alter its form or substance, or
5. If the usufructuary does not wish to exercise his right of removal, do anything thereon which may be prejudicial to the usufructuary. (489)
the owner cannot compel him to remove the improvements
6. If the usufructuary wishes to exercise his right of removal, the Rights and obligations of the naked owner
owner cannot prevent him by offering to reimburse him The naked owner may alienate the property in usufruct because the title
7. The usufructuarys right to remove the improvements includes the (dominium directum) remains vested in him.
right to destroy them provided no damage is caused to the property He may construct works, make improvements, or make new plantings
8. The right to remove is enforceable only against the owner, but not on the property in usufruct.
against a purchaser in good faith to whom a clean title has been The alienation by the naked owner cannot affect the usufruct which is
issued registered or known to the transferee.
o Right to remove the improvements should be annotated The naked owner, however, cannot:
on the certificate of title, so that it can be enforced against o alter the form or substance of the property, or
third parties o do anything thereon which may cause a diminution in the value
of the usufruct, or
Case doctrines o be prejudicial to the rights of the usufructuary,
By express provision of law, the usufructuaries do not have the right to otherwise, he shall be liable for damages.
reimbursement for improvements they may have introduced on the
The naked owner must:
property. If the rule on reimbursement or indemnity were otherwise, then
o Respect leases of rural lands by the usufructuary for the
the usufructuary might improve the owner out of his property. (Moralidad
v Pernes) balance of the agricultural year (Art 572)
o Reimburse him for advances made for extraordinary repairs
(Art 594), and
o Reimburse him for taxes on the capital (Art 597)
Art. 580. The usufructuary may set off the improvements he may have
made on the property against any damage to the same. (488)
Art. 582. The usufructuary of a part of a thing held in common shall
Right to set-off improvements exercise all the rights pertaining to the owner thereof with respect to
This article presupposes that the administration and the collection of fruits or interest. Should the
o the improvements have increased the value of the property co-ownership cease by reason of the division of the thing held in
and common, the usufruct of the part allotted to the co-owner shall belong
to the usufructuary. (490)

62
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

c. To make ordinary repairs (Art 592, par 1)


Usufruct of part of common property d. To notify the owner of urgent extraordinary repairs (Art
In case a co-owner gives the usufruct of his share to a person, the 593)
usufructuary shall exercise all the rights pertaining to the co-owner e. To permit works and improvements by the naked owner
regarding the administration and the collection of the fruits or interest not prejudicial to the usufruct (Art 595)
from the property f. To pay annual taxes and charges on the fruits (Art 596)
The usufructuary shall be bound by the partition made by the owners of g. To pay interest on taxes on capital paid by the naked
the undivided property although he took no part in the partition but the owner (Art 597)
naked owner to whom the part held in usufruct has been allotted must h. To pay debts when the usufruct is constituted on the whole
respect the usufruct. of a patrimony (Art 598)
i. To secure the naked owners or courts approval to collect
Case doctrine credits in certain cases (Art 599)
A partition made by the owners of land is binding upon a person who j. To notify the owner of any prejudicial act committed by
has a usufructuary right in an undivided part of the land, although the third persons (Art 601)
latter took no part in the partition of the property. k. To pay for court expenses and costs regarding usufruct
The right of the usufructuary is not affected by the division but it is (Art 602)
limited to the fruits of the said part allotted to the co-owner. (Pichay v 3. Those at the termination of the usufruct
Querol) a. To return the thing in usufruct to the naked owner unless
there is a right of retention (Art 612)
b. To pay legal interest for the time that the usufruct lasts, on
CHAPTER 3
the amount spent by the owner for extraordinary repairs
OBLIGATIONS OF THE USUFRUCTUARY (Art 594) and the proper interest on the sums paid as
taxes by the owner (Art 597), and
Art. 583. The usufructuary, before entering upon the enjoyment of the c. To indemnify the naked owner for any losses due to his
property, is obliged: negligence or of his transferees. (Art 589-590)
(1) To make, after notice to the owner or his legitimate representative,
an inventory of all the property, which shall contain an appraisal of the
movables and a description of the condition of the immovables; Obligation to make an inventory
(2) To give security, binding himself to fulfill the obligations imposed 1. Previous notice to be given.
upon him in accordance with this Chapter. (491) In the making of the inventory, the concurrence of the naked owner
is not required.
Classifications of obligations of the usufructuary Note that the law says legitimate, not legal representative
1. Those before the usufruct begins 2. Expenses of inventory
a. Make an inventory of the property, which shall contain an
Borne by the usufructuary
appraisal of the movables and a description of the
3. Form of inventory
immovables
Article 583 does not provide for the form of inventory. It may be
b. Give security
contained in a private document.
2. Those during the usufruct
a. Take care of the property (Art 589) However, a public instrument is necessary to affect third persons
b. To replace with the young thereof animals that die or are when there are immovables.
lost in certain cases when the usufruct is constituted on 4. Contents of inventory
flock or herd of livestock (Art 591) The inventory shall contain

63
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

o an itemized list and 1. Where the naked owner renounces or waives his right to the
o an appraisal of the movables and inventory or security
o description of the condition of the immovables. 2. Where the title constituting the usufruct relieves the usufructuary
The movables must be appraised because they are subject to from the obligation;
greater danger of loss and deterioration. o Is frequently true in usufructs constituted by a last will and
Both kinds must be properly identified. testament or by a deed of donation in view of the trust
which the testator or donor has in the usufructuary
Failure to make an inventory? Usufruct not extinguished, maybe owner can 3. Where the usufructuary asks that he be exempted from the
demand it. obligation and no one will be injured thereby.
o The usufructuary may apply to the courts for relief in case
Are there instances where obligation to make inventory is excused? Yes. the naked owner refuses to grant the exemption where, for
See Art 585. example, the usufruct is over the right to receive a periodic
income or pension
Obligation to give security
The purpose of giving security is to insure the fulfillment by the Art. 586. Should the usufructuary fail to give security in the cases in
usufructuary of the obligations imposed upon him which he is bound to give it, the owner may demand that the
Law does not specify the kind of security that should be given immovables be placed under administration, that the movables be
sold, that the public bonds, instruments of credit payable to order or to
Failure to give security? See Art 586. bearer be converted into registered certificates or deposited in a bank
or public institution, and that the capital or sums in cash and the
Art. 584. The provisions of No. 2 of the preceding article shall not apply proceeds of the sale of the movable property be invested in safe
to the donor who has reserved the usufruct of the property donated, or securities.
to the parents who are usufructuaries of their children's property, The interest on the proceeds of the sale of the movables and
except when the parents contract a second marriage. (492a) that on public securities and bonds, and the proceeds of the property
placed under administration, shall belong to the usufructuary.
When obligation to give security not applicable Furthermore, the owner may, if he so prefers, until the
This article contains the legal exceptions to the obligation of the usufructuary gives security or is excused from so doing, retain in his
usufructuary to give security in two cases: possession the property in usufruct as administrator, subject to the
o To the donor who has reserved the usufruct of the property obligation to deliver to the usufructuary the net proceeds thereof, after
deducting the sums which may be agreed upon or judicially allowed
donated
him for such administration. (494)
o To the parents who are usufructuaries of their childrens
parents, except when the parents contract a second marriage Effects of failure to give security, when required
On rights of owners: Where the obligation to give security or to file a
Art. 585. The usufructuary, whatever may be the title of the usufruct,
bond is not excused or exempted, the failure of the usufructuary to
may be excused from the obligation of making an inventory or of
comply with the same entitle the naked owner for his protection
giving security, when no one will be injured thereby. (493)
o to demand that immovables be placed under administration or
When obligation to make inventory or to give security excused receivership,
o movables be sold,
The usufructuary may be excused from the obligation in the following
cases: o instruments of credit be registered or deposited in a bank or
public institution

64
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

o capital or sums in cash and the proceeds of the sale of the Art. 588. After the security has been given by the usufructuary, he shall
movable be invested in safe securities. have a right to all the proceeds and benefits from the day on which, in
On rights of usufructuary: Until he gives the proper security, the accordance with the title constituting the usufruct, he should have
usufructuary cannot enter upon the possession and enjoyment of the commenced to receive them. (496)
property. He may not collect any matured credits nor invest capital in
usufruct without the consent of the owner or judicial authorization. Retroactive effect of giving security
The failure to give security does not extinguish the right of usufruct. This article applies where the usufructuary who is required to give
Hence, the usufructuary may alienate his right to the usufruct security gives the security after the commencement of the usufruct
This article only speaks of security (it would seem that the failure of the Failure to give the needed security may deprive the usufructuary of the
usufructuary to make an inventory, when not excused, does not have right to enjoy the possession of the property in usufruct
the same effect as when security is not given.) However, once the security is give, he is entitled to all the proceeds and
benefits of the usufruct accruing from the day on which he should have
Art. 587. If the usufructuary who has not given security claims, by commenced to receive them, from the day the usufruct commenced
virtue of a promise under oath, the delivery of the furniture necessary according to its title.
for his use, and that he and his family be allowed to live in a house
included in the usufruct, the court may grant this petition, after due Art. 589. The usufructuary shall take care of the things given in
consideration of the facts of the case. usufruct as a good father of a family. (497)
The same rule shall be observed with respect to implements,
tools and other movable property necessary for an industry or Obligation to take care of the property
vocation in which he is engaged. Includes the making of ordinary repairs needed by thing given in
If the owner does not wish that certain articles be sold usufruct
because of their artistic worth or because they have a sentimental Care required is that of a good father of a family (ordinary diligence)
value, he may demand their delivery to him upon his giving security for But diligence should not be less than that required by the circumstances
the payment of the legal interest on their appraised value. (495) Usufructuary is liable for damages suffered by the property due to his
fault and negligence
Sworn undertaking in lieu of security (caucion juratoria)
This article applies when the usufructuary who is under obligation to Art. 590. A usufructuary who alienates or leases his right of usufruct
give security cannot afford to do so and no one is willing to give security shall answer for any damage which the things in usufruct may suffer
for them through the fault or negligence of the person who substitutes him.
For humanitarian considerations, the court may allow the usufructuary (498)
to enjoy the property upon taking an oath to take care of the property
and retain it until the termination of the usufruct in lieu of giving the Liability for fault or negligence of substitute
security The usufructuary may alienate or lease his right
The usufructuary must first ask the naked owner to grant him the rights However, he shall be liable to the owner for any damage which the
mentioned, and should the latter refuse, he may resort to the courts property in usufruct may suffer through the fault or negligence (also
fraud or willful acts) of the substitute without prejudice to his right of
Articles with artistic or sentimental value may not be sold. The owner action against the latter
may demand their delivery to him if he gives security to the usufructuary
for the payment of the legal interest on their appraised value. Art. 591. If the usufruct be constituted on a flock or herd of livestock,
the usufructuary shall be obliged to replace with the young thereof the

65
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

animals that die each year from natural causes, or are lost due to the o The owner may make them at the expense of the usufructuary,
rapacity of beasts of prey. only should the latter fail to make them after demand has been
If the animals on which the usufruct is constituted should all made upon him.
perish, without the fault of the usufructuary, on account of some o The defects requiring ordinary repairs must have occurred
contagious disease or any other uncommon event, the usufructuary during the usufruct, whether with or without the fault of the
shall fulfill his obligation by delivering to the owner the remains which usufructuary.
may have been saved from the misfortune. The usufructuary is not liable for deterioration resulting from wear and
Should the herd or flock perish in part, also by accident and tear not due to his fraud or negligence, unless the deterioration could
without the fault of the usufructuary, the usufruct shall continue on the have been prevented or arrested by ordinary repairs and he failed to
part saved. make them without valid reason.
Should the usufruct be on sterile animals, it shall be considered, with
respect to its effects, as though constituted on fungible things. (499a) Art. 593. Extraordinary repairs shall be at the expense of the owner.
The usufructuary is obliged to notify the owner when the need for such
Usufruct on a flock or herd of livestock repairs is urgent. (501)
The usufructuary has the duty to make replacement although the death Art. 594. If the owner should make the extraordinary repairs, he shall
of the animals is due to natural causes. But the replacement is to be have a right to demand of the usufructuary the legal interest on the
made only from the young produced so that if there are no young or the amount expended for the time that the usufruct lasts.
number of the young is less than that of the animals that died, the Should he not make them when they are indispensable for the
usufructuary has no duty to replace or to fill up the difference. preservation of the thing, the usufructuary may make them; but he
No duty to replace provided the usufructuary is without fault (2nd and 3rd shall have a right to demand of the owner, at the termination of the
paragraphs). Even if the partial loss is due to the fault of the usufruct, the increase in value which the immovable may have
usufructuary, the usufruct continues with the remainder. Bad use does acquired by reason of the repairs. (502a)
not extinguish the usufruct (Art 603), but the owner may bring the
necessary action for the protection of his rights. Duty of owner to pay for extraordinary repairs
If the animals are sterile, and they cannot be replaced by the young Law does not impose an obligation on the naked owner or the
thereof, the usufruct shall be treated as constituted on fungible things. In usufructuary to make extraordinary repairs on the property in usufruct. It
such case Art 574 applies. is optional for them to make sure repairs or not.
Payment for extraordinary repairs:
Art. 592. The usufructuary is obliged to make the ordinary repairs o Those required by the wear and tear due to the natural use of
needed by the thing given in usufruct. the thing but not indispensable for its preservation OR those
By ordinary repairs are understood such as are required by required by the deterioration of or damage the thing caused by
the wear and tear due to the natural use of the thing and are the exceptional circumstances but not indispensable for its
indispensable for its preservation. Should the usufructuary fail to make preservation:
them after demand by the owner, the latter may make them at the The owner cannot be compelled to make them. If he
expense of the usufructuary. (500) should make them, they shall be at his expense since
they are made on his property but he shall a right to
Obligation to make ordinary repairs demand of the usufructuary who is benefited by the
The usufructuary is bound to make the repairs referred to without the repairs, legal interest on the amount expended during
necessity of demand from the owner the duration of the usufruct.

66
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

The usufructuary may make them but he is not The owner may even alienate his property or make changes thereon as
entitled to indemnity because they are not needed for long as he doesnt impair the right of the usufructuary.
the preservation of the thing.
o Those required by the deterioration of or damage to the thing Case doctrine
caused by exceptional circumstances and are indispensable In a case where the usufruct was over the land, and the owner built
for its preservation: buildings on the land, and the usufructuary was demanding the rents of
It is also optional upon the owner or the usufructuary the buildings as part of the usufruct, the Court held that the usufructuary
to make the repairs or not. If the owner should make was not entitled to the rents of the building. The usufructuarys argument
the repairs, they shall be at his expense. that Article 571 was applicable (right to enjoy any increase by
If made by the usufructuary, he shall have the right to accession) was wrong because such accession is limited to buildings
demand of the owner the payment of the increase in erected on the land of another and does not contemplate a situation
value of the immovable by reason of the repairs at the where the owner himself erected the buildings. (Gaboya v Cui)
termination of the usufruct provided the following are However, the usufructuary was entitled to reasonable rental for the
present: portion of the land occupied by the building because the construction of
He notified the owner of the urgency of the the building had reduced the area of the land and to that extent
repairs diminished the value of the usufruct. However, like said above, since the
The owner failed to make the repairs usufruct was reserved over the land alone, the usufructuary was not
The repair is necessary for the preservation entitled to the rents of the building itslef.
of the property
The usufructuary has the right of retention even after the termination of Art. 596. The payment of annual charges and taxes and of those
the usufruct until he is reimbursed for the increase in value of the considered as a lien on the fruits, shall be at the expense of the
property caused by extraordinary repairs for preservation (Art 612) usufructuary for all the time that the usufruct lasts. (504)
o Increase in value is the difference between the value of the
property before the repairs were made and the value after the Art. 597. The taxes which, during the usufruct, may be imposed directly
repairs were completed on the capital, shall be at the expense of the owner.
If the latter has paid them, the usufructuary shall pay him the proper
Art. 595. The owner may construct any works and make any interest on the sums which may have been paid in that character; and,
improvements of which the immovable in usufruct is susceptible, or if the said sums have been advanced by the usufructuary, he shall
make new plantings thereon if it be rural, provided that such acts do recover the amount thereof at the termination of the usufruct. (505)
not cause a diminution in the value of the usufruct or prejudice the
right of the usufructuary. (503) Liability for charges and taxes
Usufructuary must pay the annual charges and taxes which are
Construction, improvements and plantings by owner imposed, and, therefore, are a lien upon the fruits during the term of the
The owner has the right to do the works mentioned provided the value usufruct.
of the usufruct is not prejudiced Are real property taxes imposed on the fruits or on the capital? On the
Any increase in the value of the usufruct due to the improvements will capital.
inure to the benefit of the usufructuary for he is entitled to the use and Taxies levied on the capital must be paid by the naked owner but he has
fruits of the property right to demand from the usufructuary the proper interest on the sums
The owner has no right to demand legal interest on his expenses paid.
because they were voluntarily incurred by him

67
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

If the taxes were advanced voluntarily by the usufructuary he is entitled


to be reimbursed therefor at the termination of the usufruct with the right Usufruct of matured credits
of retention until paid. if the usufructuary has given sufficient security, he may claim matured
credits forming part of the usufruct, collect them, and use and invest,
Art. 598. If the usufruct be constituted on the whole of a patrimony, and with or without interest, the capital he has collected, in any manner he
if at the time of its constitution the owner has debts, the provisions of may deem proper
Articles 758 and 759 relating to donations shall be applied, both with if he
respect to the maintenance of the usufruct and to the obligation of the o has NOT given security, or
usufructuary to pay such debts. o that given is not sufficient, or
The same rule shall be applied in case the owner is obliged, at the time o he has been excused from giving security,
the usufruct is constituted, to make periodical payments, even if there he may collect the credits and invest the capital which
should be no known capital. (506) must be at interest, with the consent of the naked
owner or approval of the court.
Where usufruct convers entire patrimony The credits which constitute the capital belong to the
Art 598 applies to a naked owner but the usufructuary has the right to use
o universal usufruct or one which covers the entire patrimony of and invest them, and to receive the interest therefrom.
the owner, and In every case, the investment of the capital must be with sufficient
o at the time of its constitution, by donation or any other acts security to preserve its integrity
inter vivos, he has debts, whether secured or unsecured, or is
bound to make periodical payments even if, in the latter case, Art. 600. The usufructuary of a mortgaged immovable shall not be
there should be no known capital obliged to pay the debt for the security of which the mortgage was
The liability of the usufructuary for the debts of the naked owner is the constituted.
same as that of the donee under 758 and 759 Should the immovable be attached or sold judicially for the
o when there is a stipulation for the payment by the usufructuary payment of the debt, the owner shall be liable to the usufructuary for
of the debts of the owner, the former is liable only for the debts whatever the latter may lose by reason thereof. (509)
contracted by the latter before the constitution of the usufruct
o in the absence of stipulation, the usufructuary shall be Usufruct of mortgaged immovables
responsible only when the usufruct was created in fraud of The usufruct is particular, constituted by will or by acts inter vivos,
creditors whether by onerous or gratuitous title
If the usufruct is universal, the liability of the usufructuary to pay for the
Art. 599. The usufructuary may claim any matured credits which form a mortgage is governed by Art 598.
part of the usufruct if he has given or gives the proper security. If he The owner may validly mortgage the property in favor of a third person.
has been excused from giving security or has been able to give it, or if The debt must be paid by the owner.
that given is not sufficient, he shall need the authorization of the The usufructuary may mortgage his right of usufruct which is a real right
owner, or of the court in default thereof, to collect such credits.
The usufructuary who has given security may use the capital Art. 601. The usufructuary shall be obliged to notify the owner of any
he has collected in any manner he may deem proper. The usufructuary act of a third person, of which he may have knowledge, that may be
who has not given security shall invest the said capital at interest upon prejudicial to the rights of ownership, and he shall be liable should he
agreement with the owner; in default of such agreement, with judicial not do so, for damages, as if they had been caused through his own
authorization; and, in every case, with security sufficient to preserve fault. (511)
the integrity of the capital in usufruct. (507)

68
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Obligation to notify owner of prejudicial acts by third persons (7) By prescription. (513a)
Art 601 speaks of any act which may be prejudicial to the rights of
ownership, not merely of the naked ownership How is a usufruct extinguished?
A usufructuary has the duty to protect the owners interest 1. Death of the usufructuary (unless contrary intention clearly appears)
However, where the act affects possession, although this is in the 2. Expiration of period or fulfillment of condition
usufructuary, he should notify the owner because the latter has an 3. By merger of the usufruct and ownership in the same person
interest in defending it. 4. By renunciation of the usufructuary
The usufructuary is also obliged to notify the owner before making an 5. By the total loss of the thing
inventory of the property and of the need of urgent repairs. 6. Termination of right of owner (refers to the right of the person
constituting the usufruct, not to a condition imposed upon the usufruct
Case doctrine itself)
A usufructuary has the duty to protect the owners interests a usufruct 7. By prescription (acquisitive prescription by the use of a third person, not
gives a right to enjoy the property of another with the obligation of the use by the usufructuary)
preserving its form and substance, unless the title constituting it or the 8. Other causes (annulment or rescission of the contract)
law otherwise provides. (NHA v CA)
Case doctrines
Art. 602. The expenses, costs and liabilities in suits brought with Although the owner expressly authorized the usufructuaries to occupy a
regard to the usufruct shall be borne by the usufructuary. (512) portion of her property as long as they like, the usufruct may be
considered terminated by other modes or instances of extinguishment,
Obligation to pay for judicial expenses and cost such as the fulfillment of any resolutory condition provided in the
Since they are in connection with litigation over possession affecting the document creating the usufruct. (Moralidad v Spouses Pernez)
rights of the usufructuary, it is just that they are borne by him. The 30-year limitation on usufruct under the Old Spanish Civil Code
If the litigation involves only the naked ownership, the owner should does not apply to trusts. (Palad v Governor of Quezon Province)
assume them.
Art. 604. If the thing given in usufruct should be lost only in part, the
right shall continue on the remaining part. (514)
CHAPTER 4
EXTINGUISHMENT OF USUFRUCT To extinguish a usufruct, the loss must be total, except as provided in
Art 607 to 609
Art. 603. Usufruct is extinguished: If the loss in only partial, the usufruct continues with the remaining part.
(1) By the death of the usufructuary, unless a contrary But if the partial loss may be so important as to be considered total loss,
intention clearly appears; the courts shall determine.
(2) By the expiration of the period for which it was constituted,
or by the fulfillment of any resolutory condition provided in the title Art. 605. Usufruct cannot be constituted in favor of a town, corporation,
creating the usufruct; or association for more than fifty years. If it has been constituted, and
(3) By merger of the usufruct and ownership in the same before the expiration of such period the town is abandoned, or the
person; corporation or association is dissolved, the usufruct shall be
(4) By renunciation of the usufructuary; extinguished by reason thereof. (515a)
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting
the usufruct;

69
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

The ordinary life of a corporation is 50 years. Unlike a natural person, a may use it subject to the obligation to return the amount to the naked
corporation or association may be extended indefinitely. Public policy owner after his death as provided in article 612.
frowns upon perpetual usufruct.
The fifty-year limitation does not apply to trusts. Where usufruct on building only and it is destroyed
Same rule applies although the usufruct does not cover the land for the
Art. 606. A usufruct granted for the time that may elapse before a third simple reason that the use of the building necessarily involves the use
person attains a certain age, shall subsist for the number of years of the land
specified, even if the third person should die before the period expires, But, the owner is given the preferential right to construct another
unless such usufruct has been expressly granted only in consideration building, occupy the land and make use of the material even against the
of the existence of such person. (516) objection of the usufructuary
The only right of the usufructuary is to receive during the continuance of
Exception here is when the usufruct has been expressly granted only in the usufruct, legal interest on the value of the land of the materials.
consideration of the existence of the third person
Case doctrines
Art. 607. If the usufruct is constituted on immovable property of which A life usufruct constituted on the rentals of the fincas situadas located at
a building forms part, and the latter should be destroyed in any manner a certain place includes the rentals both on the building and the land on
whatsoever, the usufructuary shall have a right to make use of the land which it is erected, because the building can not exist without the land.
and the materials. Hence, the usufruct is not extinguished by the destruction of the
The same rule shall be applied if the usufruct is constituted on building, for under the law usufruct is extinguished only by the total loss
a building only and the same should be destroyed. But in such a case, of the thing subject of the encumbrance. (Vda de Albar v Carandang)
if the owner should wish to construct another building, he shall have a
right to occupy the land and to make use of the materials, being Art. 608. If the usufructuary shares with the owner the insurance of the
obliged to pay to the usufructuary, during the continuance of the tenement given in usufruct, the former shall, in case of loss, continue
usufruct, the interest upon the sum equivalent to the value of the land in the enjoyment of the new building, should one be constructed, or
and of the materials. (517) shall receive the interest on the insurance indemnity if the owner does
not wish to rebuild.
Where usufruct of land and building, and building destroyed Should the usufructuary have refused to contribute to the
The destruction of the building terminates the usufruct on the building insurance, the owner insuring the tenement alone, the latter shall
but no the usufruct on the land receive the full amount of the insurance indemnity in case of loss,
The usufructuary is still entitled to use the land and in place of the saving always the right granted to the usufructuary in the preceding
building, the materials thereof. (Partial loss) article. (518a)
The usufructuary can insist on the use of the land and the materials for
the remainder of the term of the usufruct as the right is granted him by Payment of cost of insurance
law as against the wish of the owner to construct another building. While Neither the owners nor the usufructuary is under obligation to insure the
the usufruct on a building does not expressly include the land on which property in usufruct. Should they do so, and
it is constructed, the land should be deemed included, for while there o The usufructuary shares with the owner in insuring the
can be land without a building, there can be no building without land. property, the usufructuary shall continue to enjoy the new
The naked owner shall pay legal interest on insurance received if it has building to be constructed, or if the owner does not wish to
not been used in the construction of another building during the whole rebuild, the usufructuary shall receive the legal interest on the
period of the usufruct. But he may, if he desires, relieve himself of this insurance proceeds which will go to the owner.
encumbrance by turning over the money to the usufructuary so that he

70
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

o The usufructuary refuses to contribute to the insurance, and so net proceeds of the same, after deducting the expenses and the
the owner pays it alone, the owner gets the full insurance compensation which may be allowed him for its administration.
indemnity in case of loss, the right of the usufructuary being This is true where the usufructuary has not given any security or the
limited to the legal interest on the value of the land and of the security given is insufficient especially if the owner has no property.
materials. The second part of the provision can hardly apply where there is
The article is silent where the usufructuary alone pays the insurance, or sufficient security for no considerable injury could possible be caused
where both share in the payment thereof, as to the proportion of their to the owner.
contribution to the insurance.
Art. 611. A usufruct constituted in favor of several persons living at the
Art. 609. Should the thing in usufruct be expropriated for public use, time of its constitution shall not be extinguished until death of the last
the owner shall be obliged either to replace it with another thing of the survivor. (521)
same value and of similar conditions, or to pay the usufructuary the
legal interest on the amount of the indemnity for the whole period of Usufruct in favor of several persons
the usufruct. If the owner chooses the latter alternative, he shall give Usufruct is extinguished by the death of the usufructuary unless a
security for the payment of the interest. (519) contrary intention appears.
The usufruct is not extinguished until the death of the last survivor. As
Art. 610. A usufruct is not extinguished by bad use of the thing in the usufruct continues, the rights of any usufructuary who dies shall
usufruct; but if the abuse should cause considerable injury to the accrue to the surviving usufructuaries.
owner, the latter may demand that the thing be delivered to him, o The only exception is when the title constituting the usufruct
binding himself to pay annually to the usufructuary the net proceeds of provides otherwise as where the usufruct is constituted in a list
the same, after deducting the expenses and the compensation which and will and testament and the testator makes a contrary
may be allowed him for its administration. (520) provision.

Expropriation of thing in usufruct Art. 612. Upon the termination of the usufruct, the thing in usufruct
The expropriation of the thing does not extinguish the usufruct. shall be delivered to the owner, without prejudice to the right of
Article 609 allows the substitution of the thing by an equivalent thing. retention pertaining to the usufructuary or his heirs for taxes and
If the thing in usufruct is expropriated for public use, the naked owner is extraordinary expenses which should be reimbursed. After the delivery
given the option: has been made, the security or mortgage shall be cancelled. (522a)
o to replace it with another thing of the same value and of
similar conditions, or Obligation of usufructuary to return the thing upon termination of the usufruct
o to pay to the usufructuary the legal interest on the amount of Upon the termination of the usufruct, it is the duty of the usufructuary to
indemnity for the whole period of the usufruct. return the property to the naked owner.
In the latter case, the owner shall give security for the The usufructuary is expressly granted the right of retention until he is
payment of the interest. reimbursed for the amount of taxes levied on the capital and for the
increase in value caused by extraordinary repairs.
Effect of bad use He has no right to reimbursement for useful improvements.
Bad use of the thing in usufruct does not extinguish the right of the
usufructuary whether there is security or not. The usufruct continues.
But if the bad use causes considerable injury to the owner, not to the
thing itself, the owner is given the right to demand that the thing be TITLE VII EASEMENTS OR SERVITUDES
delivered to him, binding himself to pay annually to the usufructuary the CHAPTER ONE

71
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

EASEMENTS IN GENERAL 5. It is indivisible for it is not affected by the division of the estate between
two or more persons (Art 618)
SECTION ONE DIFFERENT KINDS OF EASEMENTS 6. It is a right limited by the needs of the dominant owner or estate, without
possession;
Art. 613. An easement or servitude is an encumbrance imposed upon 7. It cannot consist in the doing of an act unless the act is accessory in
an immovable for the benefit of another immovable belonging to a relation to a real easement; and
different owner. 8. It is a limitation on the servient owners rights of ownership for the
The immovable in favor of which the easement is established benefit of the dominant owner; and therefore, it is not presumed.
is called the dominant estate; that which is subject thereto, the servient
estate. (530) Easement gives the holder an incorporeal right on the land but grants
no title thereto. Therefore, an acknowledgment of the easement is an
Easement or servitude defined admission that the property belongs to another.
Easement or servitude has been defined as a real right constituted on
anothers property, corporeal and immovable, by virtue of which the Easement established only on immovable
owner of the same has to abstain from doing or to allow somebody else Easements cannot be imposed on personal property but only on
to do something on his property for the benefit of another thing or immovable (which must be understood in its common and not in its legal
person. sense).
The definition in this article is not complete, being limited to real What the law treats of are not immovables as defined by the Civil Code
easement. but only those which are so by their nature (are really incapable of being
In view of the next article which refers to personal easement, the term moved) such as lands, roads, buildings, and constructions adhering to
may be defined as an encumbrance imposed upon an immovable for the soil.
the benefit of another immovable belonging to a different owner or for
the benefit of a community or one or more persons to whom the Nature of benefit to dominant estate
encumbered estate does not belong by virtue of which the owner is Easement can exist only when the servient and dominant estates
obliged to abstain from doing or to permit a certain thing to be done on belong to different owners.
his estate (whew.) There can be no easement without a burden on an estate for the benefit
of another immovable belonging to a different owner or of a person or
Easement and servitude distinguished group of persons.
1. It is said that easement refers to the right enjoyed by one, and The dominant estate cannot be the servient estate at the same time.
servitude, the burden imposed upon another. It is not essential that the benefit be very great, it being sufficient that
2. The two terms are used synonymously in the Civil Code although it is there is a determinate use or utility in favor of a dominant estate over an
more partial to easement. estate belonging to another.
The important thing is that it exists and can be exercised.
Characteristics of easement On the other hand, the benefit should not be so great as to be
1. It is a real right but will affect third persons only when duly registered; inconsistent with the general right of ownership of a person, amounting
2. It is enjoyed over another immovable, never on ones own property; to a taking of his property.
3. It involves two neighboring estates, the dominant to which a right
belongs and the servient upon which an obligation rests;
Easement Lease
4. It is inseparable from the estate to which it is attached and, therefore,
Real right, whether registered or not, Real right only when it is registered,
cannot be alienated independently of the estate (Art 617)
and whether it is real or personal or when its subject is real property

72
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

and the duration exceeds one year a. Voluntary when the easement is established by the will
Imposed only on real property May involve real or personal property or agreement of the parties or by a testator (Art 619);
Limited right to the use of real Limited right to both the possession b. Legal when it is imposed by law either for public use or
property of another but without the and use of anothers property in the interest of private persons (Art 637-687); or
right of possession (without any (exclusive possession) c. Mixed when it is created partly by will or agreement and
exclusive possession or occupation) partly by law.
3. As to its exercise
Easement Usufruct a. Continuous see Article 615; or
Imposed only on real property May involve real or personal b. Discontinuous
property 4. As to whether or not its existence is indicated
Limited to a particular or specific use Includes all the uses and fruits of the a. Apparent; or
of the servient estate property b. Non-apparent
Non-possessory right over an Right of possession in an immovable 5. As to the duty of servient owner
immovable or movable a. Positive see Article 616; or
b. negative
Not extinguished by the death of the As a rule, extinguished by the death
dominant owner of the usufructuary
Real and personal servitudes
Both usufruct and easement are real rights, whether registered or not,
A servitude may be established for the benefit:
and are transmissible.
1. of a particular estate and consequently, for its owner; (real or
predial)
Case doctrines
2. of a person or group of persons without being the owner or owners
The power of eminent omain encompasses not only the taking of title to
of a dominant estate. (personal)
and possession of the expropriated property but likewise covers even
Unlike a real easement, personal easement does not require two
the imposition of a mere burden upon the owner of the condemned
immovables. An example of a personal easement is a right of way
property. Where the nature of the easement practically deprives the
granted to certain persons and their family, friends, servants, and jeeps.
owners of the propertys normal beneficial use, notwithstanding the fact
The servitude is for the benefit alone of the persons enumerated and
that the expropriator only occupies the sub-terrain portion, it is liable to
not a predial servitude that inures to the benefit of whoever owns the
pay not merely an easement fee but rather the full compensation for
dominant estate. Hence, the owner of the servient estate may refuse to
land. (NPC v Ibrahim)
extend the said easement to the successors-in-interest of the persons
for whose benefit the servitude exists. (Jabonete v Monteverde)
Art. 614. Servitudes may also be established for the benefit of a
community, or of one or more persons to whom the encumbered estate
Public and private easements
does not belong. (531)
Personal easements may be:
Classifications of easement 1. Public, if it is vested in the public at large or in some class of
1. As to recipient of benefit indeterminate individuals (like the right of the public to a highway
a. Real when the easement is in favor of another over a land of private ownership)
immovable (Art 613); or 2. Private, if it is vested in a determinate individual or certain persons
b. Personal when it is in favor of a community or of one (like a right of way vested in the owner of one parcel of land over an
more persons (Art 614). Thus, it maybe public or private. adjoining parcel of land)
2. As to its source
Case doctrines

73
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

When a person is allowed to construct his house on the land of another intervention of any act of man, like the easement of drainage; and it is
to facilitate his gathering of fruits, this would be in the nature of a discontinuous if it is used at intervals and depends on the act of man,
personal easement under Article 614. (Alcantara v Reta) like the easement of right of way. (Bogo-Medellin v CA)

Art. 615. Easements may be continuous or discontinuous, apparent or Apparent and non-apparent easements
non-apparent. For an apparent easement, it is not necessary that its sign be seen; it is
Continuous easements are those the use of which is or may be sufficient if it may be seen or known on inspection.
incessant, without the intervention of any act of man. o The sign or signs may be encountered in the dominant or
Discontinuous easements are those which are used at servient estate, according to the circumstances.
intervals and depend upon the acts of man. An example of a non-apparent easement is a right of way when there is
Apparent easements are those which are made known and are no indication of its existence.
continually kept in view by external signs that reveal the use and A right of way is apparent when there is a visible road or path to show
enjoyment of the same. its exercise.
Nonapparent easements are those which show no external In general, negative easements are non-apparent.
indication of their existence. (532)
Art. 616. Easements are also positive or negative.
Continuous and discontinuous easements A positive easement is one which imposes upon the owner of
For an easement to be continuous, it is not necessary that the use be the servient estate the obligation of allowing something to be done or
incessant; it is sufficient that the use may be so. of doing it himself, and a negative easement, that which prohibits the
o Examples are the right to support a beam on anothers wall owner of the servient estate from doing something which he could
which really exists continuously and the right of aqueduct lawfully do if the easement did not exist. (533)
which may be used only on certain days depending on the
need for water but which is continuous since its use does not Positive and negative easements
depend upon the intervention of man. A positive easement is one which imposes upon the owner of the
An example of discontinuous servitude is the right of way which is used servient estate the obligation of allowing something to be done or of
at intervals because it is physically impossible that man shall continually doing it himself.
poass over the way. o Example: the easement of which the right of way which
The easement itself, whether continuous or discontinuous, exists imposes upon the owner of the servient estate the duty to allow
continuously whether it is being used or not, but its exercise may be the use of said way.
continuous or discontinuous, or there may be no exercise at all. A negative easement is that which prohibits the owner of the servient
The distinction lies in the fact that in continuous easements, the estate from doing something which he could lawfully do if the easement
exercise or enjoyment can be had without the intervention of man while did not exist.
in discontinuous easements, such exercise or enjoyment requires the o Example: easement of light and view whereby the owner of the
intervention of man. servient estate is prohibited from obstructing the passage of
In both easements, the benefit and burden exists from the moment the light. It may also be positive depending upon the manner by
easements are created. which it is exercised.
Case doctrine When the opening or window is made on anothers wall (wall of servient
Easements are either continuous or discontinuous according to the estate) or on a party wall, the easement acquired is positive because
manner they are exercisd, not according to the presence of apparent the owner of the wall allows the servitude to burden his wall.
signs or physical indications of the existence of such easements. Thus,
an easement is continuous if its use is, or may be, incessant without the

74
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

If the window is through ones own wall (wall of the dominant estate) being annotated on the corresponding certificate of title. A registered
which does not extend over anothers property (servient estate), the owner or subsequent purchaser of registered land holds his certificate of
easement is negative. title free from all encumbrances except only those noted in said
certificate and the statutory liens.
Case doctrines o But if the existence of an easement was known to the
Restrictive covenants are not, strictly speaking synonymous with transferee or grantee of the servient estate, such knowledge is
easements, but a case of servitudes or burdens, sometimes equivalent to registration.
characterized to be negative easements or reciprocal negative
easements. Negative easement is the most common easement created Case doctrines
by covenant or agreement whose effect is to preclude the owner of the A vendee on real property on which a servitude or an easement of right
land from doing an act, which, if no easement existed, he would be of way exists does not acquire the right to close that servitude to
entitled to do. (Fajardo v Freedom to Build) prevent the neighboring estates from using it. (Solid Manila v Bio Hong)
Courts generally view restrictive covenants with disfavor, but still sustain
them where the covenants are reasonable, not contrary to law, or not in Art. 618. Easements are indivisible. If the servient estate is divided
restraint of trade. If the covenant aims to promote aesthetics, health, between two or more persons, the easement is not modified, and each
and privacy or to prevent overcrowding, then the covenant must be of them must bear it on the part which corresponds to him.
sustained. If it is the dominant estate that is divided between two or more
A suit for equitable enforcement of a restrictive covenant can only be persons, each of them may use the easement in its entirety, without
made by one for whose benefit it is intended. It is thus not normally changing the place of its use, or making it more burdensome in any
enforceable by one who has no right nor interest in the land for the other way. (535)
benefit of which the restriction has been imposed. Thus, developer of a
subdivision can enforce restrictions, even as against remote grantees of Quality of indivisibility
lots, only if he retains part of the land. (Fajardo v Freedom) Easement as a right is indivisible.
Accordingly, the partition between two or more persons of either the
servient or dominant estate does not affect the existence of the
Art. 617. Easements are inseparable from the estate to which they servitude which continues in its entirety.
actively or passively belong. (534) If the servient estate is divided, each new owner must bear the
easement but only with respect to the part corresponding to him.
Quality of inherence or inseparability If the dominant estate is divided, each owner can exercise the whole
Servitudes are inseparable from the estate to which they actively or easement over each of the servient estates subject to the condition that
passively belong, being accessory things whose very existence the place of easement shall not be changed and the easement shall not
depends upon the principal thing (immovable). be more burdensome.
Hence, they are intransmissible in the sense that they cannot be o A person entitled to a right of way may do whatever is
alienated or mortgaged independently of the estate. necessary to make it convenient for his use but he cannot
An easement cannot be the object of usufruct because it has no deviate therefrom. The easement is not considered made more
existence independent of the immovable to which it attaches. burdensome by the mere increase in the owners of the
If the dominant estate is alienated, such alienation carries with it also dominant estates.
the easements established in its favor even if they are not annotated as
an encumbrance on the certificate of title. Art. 619. Easements are established either by law or by the will of the
An easement is extinguished or cut-off, however, by the registration of owners. The former are called legal and the latter voluntary easements.
the servient estate under the Torrens system without the easement (536)

75
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Prescription as a mode of acquisition requires the existence of the


Legal and voluntary easements following:
This article gives the two kinds of easements according to source. 2. Capacity to acquire by prescription
The courts cannot impose or constitute any servitude where none 3. Thing capable of acquisition by prescription
existed. 4. Possession of the thing under certain conditions
They can only declare its existence if in reality it exists by law or by the Under claim of title (en concepto de dueno)
will of the owners. Possession not merely tolerated by owner
There are no judicial easements. 5. Lapse of time provided by law (National Power Corp v Campos)
Voluntary easements must be recorded in the Registry of Property in
order not to prejudice third persons.
Art. 621. In order to acquire by prescription the easements referred to
SECTION TWO - MODES OF ACQUIRING EASEMENTS in the preceding article, the time of possession shall be computed
thus: in positive easements, from the day on which the owner of the
Art. 620. Continuous and apparent easements are acquired either by dominant estate, or the person who may have made use of the
virtue of a title or by prescription of ten years. (537a) easement, commenced to exercise it upon the servient estate; and in
negative easements, from the day on which the owner of the dominant
Modes of acquiring easements estate forbade, by an instrument acknowledged before a notary public,
1. By title. All easements. the owner of the servient estate, from executing an act which would be
a. Continuous and apparent easements (Art 620) lawful without the easement. (538a)
b. Continuous and non-apparent easements (Art 622)
c. Discontinuous easements, whether apparent or non- Computation of the prescriptive period
apparent If the easement is positive, the period is counted from the day on which
2. By prescription of ten years only continuous and apparent easements the owner of the dominant estate began to exercise it
3. By deed of recognition (Art 623) o From the day a window was built in a party wall
4. By final judgment If the easement is negative, from the day on which a notarial prohibition
5. By apparent sign established by the owner of two adjoining estates (Art was made on the servient estate
624) Under article 622, non-apparent easements may not be acquired by
prescription. Negative easements are essentially non-apparent.
Acquisition by title or prescription However, article 621 provides the prescriptive period for negative
Only continuous and apparent easements may be acquired either by easements. The notarial prohibition may be taken as making the
virtue of a title or by prescription in 10 years. easement apparent, and therefore, prescriptible.
By title, it refers to the juridical act which gives birth to the easement,
such as law, donation, contract and will of the testator. Computation in case of easement of light and view
This article fixes ten years as the period of prescription, regardless of If made on ones own wall and the wall does not extend over the
good faith or bad faith of the possessor and whether or not he has just property of another, the easement is negative because the owner is
title. merely exercising his inherent right of dominion and not an easement.
The general rules on prescription do not apply, the only requirement o The servient owner cannot close it up; otherwise he will be
being that there be adverse possession of the easement for ten years. liable for trespass.
o But the negative easement is not automatically vested. The
Case doctrines owner must make the prohibition required upon the proprietor

76
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

of the adjoining land or tenement to prevent him from aforesaid should be removed before the execution of the deed. This
obstructing the light and view. provision shall also apply in case of the division of a thing owned in
o If the latter consents to such prohibition and the period fixed by common by two or more persons. (541a)
law expires, the easement will be acquired by prescription.
There is no true easement for as long as the right to prohibit its Alienation by same owner of two estates with sign of existence of servitude
exercise exists. This contemplates a situation where two estates between which there
If made through a party wall or on ones own wall which extends over exists an apparent sign (like a window or road) of an easement belong
the neighboring estate, the easement acquired is positive because the to the same owner.
owner of the latter estate who has a right to close it up allows an What the law requires is that the sign indicates the existence of a
encumbrance on the property. servitude although there is no true servitude there being only one owner
o The period of prescription shall be counted from the time of the In case the owner alienates either of them or both with the result that
opening of the window. the ownership thereof is divided, the easement shall continue unless
the contrary has been stipulated in the title of conveyance of either of
Art. 622. Continuous non-apparent easements, and discontinuous them or the sign removed before the execution of the deed
ones, whether apparent or not, may be acquired only by virtue of a title. o The existence of the apparent sign is equivalent to a title if no
(539) objection has been made by the servient owner for an implied
contract that the easement should be constituted is deemed to
Acquisition only by title exist between the new owners
Continuous and apparent easements are the only easements that can o The dominant owner can oppose the owner of the servient
be acquired by prescription because they are the only ones the estate from doing anything which would be inconsistent with
possession of which fulfills two important requisites required by law for his obligation to respect the easement
prescription possession be public and continuous. If the lots are owned by two different owners, a
The easements mentioned in Art 622 may be acquired by title, not by notarial prohibition should be effected (Atty Abrenica)
prescription because their possession or exercise is either not public This article applies in case of the division of a common property by the
(non-apparent) such as easement of lateral and subjacent support, or it co-owners as the effect is the same as an alienation, or there is only
is public but not continuous or uninterrupted (discontinuous), like a right one estate and a part thereof is alienated.
of way if there is a visible path. This article is not applicable in case the two estates or portions of the
However, for legal purposes, the easement of aqueduct shall be same estate remain or continue to be in the same owner after alienation
considered as continuous and apparent, although it is not really so. or partition

Art. 623. The absence of a document or proof showing the origin of an Case doctrine
easement which cannot be acquired by prescription may be cured by a Where two adjoining estates were formerly owner by just one person
deed of recognition by the owner of the servient estate or by a final who introduced improvements on both, such that the wall of the house
judgment. (540a) constructed on the first estate extends to the wall of the camarin on the
second estate; and at the time of the sale of the first estate, there
Art. 624. The existence of an apparent sign of easement between two existed on the wall of the house, doors and windows (which serve as
estates, established or maintained by the owner of both, shall be passages for light and view), there being no provision in the deed of
considered, should either of them be alienated, as a title in order that sale that the easement of light and view will not be established, the case
the easement may continue actively and passively, unless, at the time is covered by 624.
the ownership of the two estates is divided, the contrary should be The existence of doors and windows on the aforesaid wall of the house
provided in the title of conveyance of either of them, or the sign is equivalent to a title that characterizes its existence.

77
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

But while the law declares that the easement is to continue, the preservation of the servitude, but without altering it or rendering it
easement actually arises for the first time only upon alienation of more burdensome.
another estate, inasmuch as before that time there is no easement to For this purpose he shall notify the owner of the servient estate, and
speak of, there being but one owner of both estates. (Gargantos v Tan shall choose the most convenient time and manner so as to cause the
Yanon) least inconvenience to the owner of the servient estate. (543a)

Art. 625. Upon the establishment of an easement, all the rights What are the rights of the dominant owner?
necessary for its use are considered granted. (542) 1. Exercise all the rights necessary for the use of the easement
2. Make on the servient estate all works necessary for the use and
Rights granted by easement preservation of the servitude
All easements carry with them all the rights necessary for their use and 3. Renounce the easement if he desires to exempt himself from the
exercise contribution to necessary expenses
Since these accessory rights or accessory easements exist solely by 4. Ask for mandatory injunction to prevent impairment of his of the
virtue of and for the use of the servitude which can be considered as the easement
principal one, they cease upon the termination of the servitude
What are the obligations of the dominant owner?
Art. 626. The owner of the dominant estate cannot use the easement 1. Cannot alter the easement or render it more burdensome
except for the benefit of the immovable originally contemplated. 2. Notify the servient owner of works necessary for the use and
Neither can he exercise the easement in any other manner than that preservation of the servitude
previously established. (n) 3. Choose the most convenient time and manner in making the necessary
works as to cause the least inconvenience to the servient owner
Immovable to be benefited by easement, and manner of its exercise 4. Contribute to the necessary expenses if there are several dominant
The rule in the first sentence is just because if the owner of the estates in proportion to the benefits derived from the works
dominant estate is allowed to use the servitude for the benefit of other
adjoining lands subsequently acquired, or for others, that would make What are the rights of the servient owner?
the easement more onerous and beyond the intention of the parties 1. Retain the ownership of the portion of the estate on which the easement
If the easement has been constituted in general terms, only the rights is established
which are reasonably necessary and convenient for the use 2. Make use of the easement, unless there is an agreement to the contrary
contemplated and would case the least burden to the servient estate are 3. Change the place or manner of the use of the easement, provided it be
granted. equally convenient
Where the purpose of the easement or the manner of its exercise is
defined by the title creating it, the exercise of the easement must be What are the obligations of the servient owner?
consistent with such purpose or manner 1. Cannot impair the use of the easement
2. Contribute to the necessary expenses in case he uses the easement,
unless there is an agreement to the contrary
SECTION THREE RIGHTS AND OBLIGATIONS OF THE
OWNERS OF THE DOMINANT AND SERVIENT ESTATES Right of the dominant owner to make necessary works
Right granted by 627 is subject to the following conditions:
Art. 627. The owner of the dominant estate may make, at his own 1. Works shall be at his expense and are necessary for the use and
expense, on the servient state any works necessary for the use and preservation of the servitude
2. They do not alter or render the servitude more burdensome;

78
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

3. The dominant owner, before making the works, must notify the that no injury is caused thereby to the owner of the dominant estate or
servient owner, and to those who may have a right to the use of the easement. (545)
4. They shall be done at the most convenient time and manner as to
cause the lease inconvenience to the servient owner Obligation of servient owner not to impair servitude
The servient owner may abstain from constructing works or performing
Case doctrine any act which will impair, in any manner whatsoever, the use of the
(Goldcrest v Cypress Gardens) servitude.
An injunction lies at the instance of the dominant owner to prohibit the
Art. 628. Should there be several dominant estates, the owners of all of servient owner from impairing the use of the servitude
them shall be obliged to contribute to the expenses referred to in the
preceding article, in proportion to the benefits which each may derive Right of servient owner to change place or manner of easement
from the work. Any one who does not wish to contribute may exempt While the servient estate cannot impair the use of the servitude, he may
himself by renouncing the easement for the benefit of the others. change at his expense the place or manner for its use provided the
If the owner of the servient estate should make use of the following requisites are present:
easement in any manner whatsoever, he shall also be obliged to 1. The place or manner has become very inconvenient to him or
contribute to the expenses in the proportion stated, saving an prevents him from making important works thereon;
agreement to the contrary. (544) 2. He offers another place or manner equally convenient; and
3. No injury is caused by the chance to the dominant owner or to
Obligation to contribute to expenses of necessary works whoever may have a right to the use of the easement.
This article contemplates several dominant estates.
All the owners shall share the expenses in proportion to the benefits Art. 630. The owner of the servient estate retains the ownership of the
derived by each estate from the works and not in proportion to their portion on which the easement is established, and may use the same
respective interests. The benefits shall be presumed equal in the in such a manner as not to affect the exercise of the easement. (n)
absence of any agreement or proof to the contrary. The easement of
right of way ordinarily gives the same benefit Right of servient owner to use easement
An owner may exempt himself from contributing to the expenses by The servient owner preserves his dominion over the portion of his estate
renouncing the easement in favor of the others. on which the easement is established
What about the servient owner? Well, he shall be obliged to contribute This is true although the indemnity consists of the value of the land
to the expense except when there is a stipulation to the contrary, should occupied and the amount of the damage to the servient estate (Art 649)
he make use of the easement in any manner whatsoever. If he bound He may use the easement subject to the condition that he does not
himself to bear the cost of the work, he may free himself form the impair the rights of the dominant owner.
obligation by renouncing his property to the dominant owner (Art 693)
Case doctrine
Art. 629. The owner of the servient estate cannot impair, in any manner When the trial court found that the persons right to continue to use the
whatsoever, the use of the servitude. septic tank ceased upon the subdivision of the land and its subsequent
Nevertheless, if by reason of the place originally assigned, or sale to different owners who do not have the same interest, the
of the manner established for the use of the easement, the same Supreme Court said that this is contrary to law. (Tanedo v Bernad)
should become very inconvenient to the owner of the servient estate,
or should prevent him from making any important works, repairs or SECTION FOUR MODES OF EXTINGUISHMENT OF
improvements thereon, it may be changed at his expense, provided he
offers another place or manner equally convenient and in such a way EASEMENTS

79
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

This mode is applicable only to easements that have been in use


Art. 631. Easements are extinguished: and later abandoned, for one cannot discontinue using what one
(1) By merger in the same person of the ownership of the has never used
dominant and servient estates; Some legal easements (natural drainage) may be extinguished by
(2) By nonuser for ten years; with respect to discontinuous non-user, but only with respect to the actual form or manner in
easements, this period shall be computed from the day on which they which they had been exercised, and the right or the power to claim
ceased to be used; and, with respect to continuous easements, from the exercise of legal easements does not prescribe, as occurs
the day on which an act contrary to the same took place; especially in the case of the right of way and easement of
(3) When either or both of the estates fall into such condition aqueduct. (Francisco v Paez)
that the easement cannot be used; but it shall revive if the subsequent If the easement is discontinuous (right of way), the period of ten
condition of the estates or either of them should again permit its use, years shall be computed from the day it ceased to be used.
unless when the use becomes possible, sufficient time for prescription If continuous (natural drainage), from the day on which an act
has elapsed, in accordance with the provisions of the preceding contrary to the same took place (like construction of a dam which
number; blocks natural drainage)
(4) By the expiration of the term or the fulfillment of the The non-use must be voluntary on the part of the dominant owner
condition, if the easement is temporary or conditional; and not due to fortuitous events beyond his control unless the non-
(5) By the renunciation of the owner of the dominant estate; use is due to the impossibility of use under no 3
(6) By the redemption agreed upon between the owners of the Whats the basis? Well, its presumptive renunciation.
dominant and servient estates. (546a) o So, the proof of non-user must be undubitable particularly
where the easement is perpetual in character because of
What are the modes of extinguishment of easements?
its annotation in the Torrens title. Thus, the mere non-use
1. By merger
of a passageway by the dominant owner who has gained
It is not necessary that it be with respect to the full extent of the direct access to another way does not extinguish the
tenement but only with respect to that part affected by the servitude easement of right of way. In the absence of any evidence
or that part for the benefit of which the servitude was established that could point to mutual agreement to the discontinuance
The merger must be absolute and complete in one and the same of the easement annotated on the title, its continued
person and not by virtue of other real rights less than full existence must be upheld
ownership. (where the merger is temporary, as when it is subject to The use by a co-owner of the dominant estate benefits all the other
a resolutory condition, there is only a suspension but not an co-owners and prevents prescription as to them.
extinguishment of the servitude.) 3. Impossibility of use
If the servient owner becomes a co-owner of the dominant estate, When the condition of either or both of the estates which makes
there is no merger for he has acquired only a part interest therein. impossible the use of the easement is irreparable, whether caused
If the dominant sells a retro the whole immovable to the servient, by fortuitous events or not, the servitude is absolutely extinguished
the easement is not extinguished but only suspended. The o Otherwise, the impossibility of use merely suspends the
servitude is revived when the dominant redeems the property. servitude until such time when it can be used again
What if the dominant sells absolutely to the servitude, buys it back,
then sells it to a third person. There is no revival here because it 4. By expiration of term or fulfillment of resolutory condition
was already unconditionally extinguished by the sale of the property 5. By renunciation
to the servient. But if the sale to servient by dominant was The renunciation or waiver must be specific, clear and express.
rescinded or annulled, there is no extinguishment by merger.
2. By non-user for ten years

80
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

This is particularly true for discontinuous easements such as right A voluntary easement of right of way, like any other contract, could be
of way. extinguished only by mutual agreement or by renunciation of the owner
The waiver must be at least such as may be obviously gathered of the dominant estate. As it is like any other contract, it is generally
from positive acts if not formal and solemn. The mere refraining effective between the parties, their heirs and assigns, except in case
from claiming the right, without any positive acts imply a real where the rights and obligations arising from the contract are not
waiver, is not sufficient for the purpose although it may constitute transmissible by their nature, or by stipulation, or by provision of law.
non-use. A clear case of implied waiver is the act of covering up a (Unisource v Chung, 2009)
window by the dominant owner and yet this act does not ipso facto If there are easement or other rights appurtenant to a parcel of
extinguish the easement, but only serves to make the starting point registered land which for any reason have failed to be registered, such
for prescription. (Francisco v Paez) easement or rights shall remain so appurtenant notwithstanding such
Where the easement is in favor of a particular group of persons, the failure, and shall be held to pass with the land until cut off or
voluntary renunciation thereof by some of them will not affect the extinguished by the registration of the servient estate or in any other
right of the others. manner. An easement is cut off or extinguished by the registration of the
6. By redemption servient estate under the Torrens system without the easement being
it must be by virtue of an agreement between the owners of the annotated on the corresponding certificate of title, pursuant to Sec 39 of
dominant and servient estates under which the servitude would be Act 496 (Purugganan v Paredes)
extinguished o EXCEPTION: When the person who registers the servient
7. By other causes estate has ACTUAL knowledge that an easement exists.
Annulment, rescission, abandonment, etc (One cant rely on the face of the title if one has actual
Registration of the servient estate under the Torrens system without knowledge of facts which should compel him to do further
the easement being annotated in the title investigation)

Some case doctrines Art. 632. The form or manner of using the easement may prescribe as
Alienation of the dominant and servient estates to different persons is the easement itself, and in the same way. (547a)
not one of the grounds for extinguishment of the easement. (Tanedo v
Bernad) Prescription of form or manner of using easement
Absent a statement abolishing or extinguishing the easement, then the The form or manner (or mode) of using the easement is different from
easement is continued by operation of law. (Tanedo v Bernad) the easement itself or the right to exercise it
An easement is perpetual in character when it is annotated on all the Both may be lost by prescription
transfer certificates of title issued. Since there is no evidence that would Some legal easements, however, do not prescribe but the form or
point to a mutual agreement between any of the parties with respect to manner of using all easements including legal easements may be lost or
the discontinuance or obliteration of the easement annotated on the acquired by prescription
titles, the continued existence of the easement must be upheld and
respected. (Benedicto v CA) Art. 633. If the dominant estate belongs to several persons in common,
NB: When the easement is a legal easement, it need not be annotated the use of the easement by any one of them prevents prescription with
in the title. A legal easement is one mandated by law, constituted for respect to the others. (548)
public use or for private interest and becomes a continuing property
right. It is inseparable from the estate to which it belongs. So, theres no Where dominant estate owned in common
need to annotate in the title. (Villanueva v Velasco) Easements are indivisible
Hence, the use by a co-owner inures to the benefit of all the other co-
owners and prevents prescription as to shares of the latter

81
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

In other words, the use by a co-owner is deemed to be used by each Art. 636. Easements established by law in the interest of private
and all the co-owners persons or for private use shall be governed by the provisions of this
Title, without prejudice to the provisions of general or local laws and
CHAPTER 2 ordinances for the general welfare.
These easements may be modified by agreement of the
LEGAL EASEMENTS interested parties, whenever the law does not prohibit it or no injury is
suffered by a third person. (551a)
SECTION ONE GENERAL PROVISIONS
Governing laws
Art. 634. Easements imposed by law have for their object either public 1. Public legal easements they are governed primarily by the special
use or the interest of private persons. (549) laws and regulations relating thereto, and by the Civil Code (634-687),
inclusive.
What is legal easement? 2. Private legal easements
Legal easements are easements imposed or mandated by law, and a. By agreement of the interested parties provided it is not
which have for their object: prohibited by law or injurious to a third person
o either public use or b. In the absence of agreement, by the provisions of general
o the interest of private properties and local laws and ordinances for the general welfare; and
They become a continuing property right c. In default of a and b, by articles 634 to 687, inclusive of
the Civil Code.
Kinds of legal easements
1. Public legal easements or those for public or communal use Case doctrine
2. Private legal easements or those for the interest of private persons or Where the land was originally public land, and awarded by free patent
for private use, which include those relating to with a reservation for a legal easement of a right-of-way in favor of the
a. Waters government, just compensation need not be paid for the taking of a part
b. Right of way thereof for public use as an easement of a right of way, unlike if the land
c. Party wall were originally private property. (NIA v CA)
d. Light and view
e. Drainage SECTION TWO EASEMENTS RELATING TO WATERS
f. Intermediate distances
g. Against nuisance Art. 637. Lower estates are obliged to receive the waters which
h. Lateral and subject support naturally and without the intervention of man descend from the higher
estates, as well as the stones or earth which they carry with them.
Case doctrine The owner of the lower estate cannot construct works which
See Villanueva v Velasco cited in Art 631 will impede this easement; neither can the owner of the higher estate
make works which will increase the burden. (552)

Art. 635. All matters concerning easements established for public or Legal easements relating to waters
communal use shall be governed by the special laws and regulations 1. Natural drainage (637)
relating thereto, and, in the absence thereof, by the provisions of this 2. Drainage of buildings (674)
Title. (550) 3. Easement on riparian banks for navigation, floatage, fishing, salvage,
and towpath (638)

82
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

4. Easement of a dam (639, 647) Estates adjoining the banks of navigable or floatable rivers
5. Easement for drawing water or for watering animals (640-641) are, furthermore, subject to the easement of towpath for the exclusive
6. Easement of aqueduct (642-646) service of river navigation and floatage.
7. Easement for the construction of a stop lock or sluice gate (647) If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
Natural drainage of lands
This article imposes a natural easement upon the lower estates which Public easements on banks of river
are obliged to receive the waters which naturally and without the Banks of rivers and streams, whether they are of public or private
intervention of man descend from the higher estates, as well as the ownership, are subject to easement of public use for:
stones or earth carried by the waters. 1. Navigation
This easement is a continuous one and may be extinguished by non- 2. Floatage
user for the period of 10 years required by law. Thus, if a dike was 3. Fishing
constructed by the servient owner (an act contrary to the easement), the 4. Salvage
action to destroy the dike is barred if brought only after 1 years. 5. With respect to estates adjourning banks of navigable rivers, also to
Duty of servient owner the owner of the lower estate cannot construct easement of towpath.
works which will impede this easement, such as walls, ditches or If the land is of public ownership, there is no indemnity; if of private
fences, or a dam which blocks the natural flow of the waters. The ownership, the proper indemnity shall first be paid before it may be
dominant owner may demand their removal or destruction and recover occupied. Riparian owners cannot be required to subject their property
damages. The servient owner may construct works to regulate the flow to the easement for the benefit of the public without prior indemnity.
of waters, but not those which will impede the easement. The width of the zone subject to the easement is 3 meters throughout
Duty of dominant owner the owner of the higher tenement cannot the entire length of the bank along its margin.
make works which will increase the burden. If the waters are the result The easement established by Article 638 does not apply to canals or
of artificial development, or are the overflow from irrigation dams, or esteros.
proceed from industrial establishments recently set up, the owner of the
lower estate shall be entitled to compensation for his loss or damage. Art. 639. Whenever for the diversion or taking of water from a river or
o But the dominant owner is not prohibited from cultivating brook, or for the use of any other continuous or discontinuous stream,
his land or constructing works to regulate the descent of it should be necessary to build a dam, and the person who is to
the waters to prevent erosion to his land and as long as he construct it is not the owner of the banks, or lands which must support
does not impede the natural flow of the waters and it, he may establish the easement of abutment of a dam, after payment
increase the burden of the lower estate, he is not liable for of the proper indemnity. (554)
damages.
Abutment of buttress of a dam
Remember Remman v CA? The case with the pig shit? It also said that tax A person who needs to build a dam to divert or take water from a river
returns per se could not reflect the total amount of damages suffered by a or brook but is not the owner of the banks or lands which must support
party, as income losses from a portion of his property could be offset by any the dam, may be allowed the easement of abutment or buttress of a
profit derived from the rest of said property or from other sources of income. dam (estribo de presa)
He must seek the permission of the owner, and in case of the latters
Art. 638. The banks of rivers and streams, even in case they are of refustal, he must secure authority from the proper administrative agency
private ownership, are subject throughout their entire length and within which will conduct the necessary investigation in which all interested
a zone of three meters along their margins, to the easement of public parties are given opportunity to be heard. In establishing the easement,
use in the general interest of navigation, floatage, fishing and salvage. the proper indemnity must be paid.

83
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Where the construction of a dam is unauthorized, the same can be (1) To prove that he can dispose of the water and that it is
considered a private nuisance and may be lawfully destroyed or sufficient for the use for which it is intended;
removed by the injured landowner or by any persona acting under his (2) To show that the proposed right of way is the most
directions. convenient and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner
Case doctrine determined by the laws and regulations. (558)
An easement of buttress can be imposed by administrative authority
with respect to land lying adjacent to public or private waters; but in Art. 644. The easement of aqueduct for private interest cannot be
such case it is required that an investigation of record shall be made imposed on buildings, courtyards, annexes, or outhouses, or on
before the easement of buttress is decreed. The making of the orchards or gardens already existing. (559)
investigation of record is an essential prerequisite to the exercise of the
power. (Solis v Pujeda) Easement of aqueduct what is it?!
Easement of aqueduct is the right arising from a forced easement by
Art. 640. Compulsory easements for drawing water or for watering virtue of which the owner of an estate who desires to avail himself of
animals can be imposed only for reasons of public use in favor of a water for the use of said estate may make such waters pass through the
town or village, after payment of the proper indemnity. (555) intermediate estate with the obligation of indemnifying the owner of the
same and also the owner of the estate to which the water may filter or
Art. 641. Easements for drawing water and for watering animals carry flow.
with them the obligation of the owners of the servient estates to allow The easement is provided in Article 642. It gives the right to make water
passage to persons and animals to the place where such easements flow through or under intervening or lower estates.
are to be used, and the indemnity shall include this service. (556)
Requisites?
Drawing water or watering animals The person desiring to make use of the easement must:
This is a personal easement which includes the accessory easement of 1. Prove that he has the capacity to dispose of the water;
passage or right of way of persons and animals to the place where the 2. Prove that the water is sufficient for the use intended;
easement is to be used. 3. Show that the proposed right of way is the most convenient and the
Requisites are: least onerous to third persons; and
1. Must be imposed for reasons of public use; 4. Pay indemnity to the owner of the servient estate.
2. Must be in favor of a town or village; and But where the number of years that have elapsed since the
3. Must be payment of proper indemnity. easement had first come into existence and the subsequent
changes in ownership of lots involved would make it impossible
to present proof of indemnity to the owner of the servient
Art. 642. Any person who may wish to use upon his own estate any estate, this requisite has been deemed to be complied with.
water of which he can dispose shall have the right to make it flow (Salazar v Gutierrez)
through the intervening estates, with the obligation to indemnify their
owners, as well as the owners of the lower estates upon which the The easement cannot be imposed over buildings, courtyards, annexes
waters may filter or descend. (557) or gardens if the easement is for private interest.

Art. 643. One desiring to make use of the right granted in the preceding Case doctrines
article is obliged:

84
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

The Spanish Law of Waters allows the creation of a compulsory Art. 647. One who for the purpose of irrigating or improving his estate,
easement of aqueduct for the purpose of establishing or extending an has to construct a stop lock or sluice gate in the bed of the stream
irrigation system, and there is nothing to the contrary in the Civil Code. from which the water is to be taken, may demand that the owners of
The registration of the servient lot without the corresponding registration the banks permit its construction, after payment of damages, including
of the easement of aqueduct on the title cannot summarily terminate it those caused by the new easement to such owners and to the other
30 years thereafter where the original registered owner of the servient irrigators. (562)
lot allowed the easement to continue in spite of such non-registration.
The least that can be said is that he either recognized its existence as a Construction of a stop lock or sluice gate
compulsory servitude on his estate or voluntarily agreed to its In Article 639, the purpose of building a dam is to divert water from a
establishment and continuance. And subsequent purchasers of the river or brook. Here, the purpose of the construction is to take water for
servient estate cannot capitalize on the absence of annotation on the irrigation, or to improve an estate.
title where they are aware of the existence of the easement and likewise In both cases, the construction is on the estate of another and proper
allowed it to continue for 26 years after they acquired title. (Salazar v indemnity has to be paid. Furthermore, no damage must be caused to
Gutierrez) third persons.

Art. 645. The easement of aqueduct does not prevent the owner of the Art. 648. The establishment, extent, form and conditions of the
servient estate from closing or fencing it, or from building over the servitudes of waters, to which this section refers, shall be governed by
aqueduct in such manner as not to cause the latter any damage, or the special laws relating thereto insofar as no provision therefor is
render necessary repairs and cleanings impossible. (560) made in this Code. (563a)
SECTION THREE EASEMENT OF RIGHT OF WAY
Right of owner of servient estate
The servient owner may close or fence his estate, or build over the Art. 649. The owner, or any person who by virtue of a real right may
aqueduct so long as no damage is caused to the aqueduct or the cultivate or use any immovable, which is surrounded by other
necessary repairs and cleaning of the same are not rendered immovables pertaining to other persons and without adequate outlet to
impossible. a public highway, is entitled to demand a right of way through the
He can construct works he may deem necessary to prevent damage to neighboring estates, after payment of the proper indemnity.
himself provided he does not impede or impair, in any manner Should this easement be established in such a manner that its
whatsoever, the use of the easement just like the owner of the lower use may be continuous for all the needs of the dominant estate,
estate on which an easement of natural drainage has been established. establishing a permanent passage, the indemnity shall consist of the
If he does impair, the dominant owner may ask for the removal or value of the land occupied and the amount of the damage caused to
destruction of such works with a right to indemnity for damages. the servient estate.
In case the right of way is limited to the necessary passage for
Art. 646. For legal purposes, the easement of aqueduct shall be the cultivation of the estate surrounded by others and for the gathering
considered as continuous and apparent, even though the flow of the of its crops through the servient estate without a permanent way, the
water may not be continuous, or its use depends upon the needs of the indemnity shall consist in the payment of the damage caused by such
dominant estate, or upon a schedule of alternate days or hours. (561) encumbrance.
This easement is not compulsory if the isolation of the
Easement considered as continuous and apparent immovable is due to the proprietor's own acts. (564a)
For legal purposes, the easement is considered continuous and
apparent and therefore, may be susceptible of acquisitive prescription. Art. 650. The easement of right of way shall be established at the point
least prejudicial to the servient estate, and, insofar as consistent with

85
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

this rule, where the distance from the dominant estate to a public Right of way must be absolutely necessary
highway may be the shortest. (565) The right cannot be claimed merely for the convenience of the owner of
the enclosed estate.
Easement of right of way DEFINED! Owner must show that the compulsory easement is absolutely
Easement of right of way is the right granted by law to the owner of an necessary for the normal enjoyment of his property. Even if necessary
estate which is surrounded by other estates belonging to other persons but it can be satisfied without imposing the servitude, the same should
and without an adequate outlet to a public highway to demand that he not be imposed.
be allowed a passageway throughout such neighboring estates after The easement can be established for the benefit of a tenement with an
payment of the proper indemnity. inadequate outlet, but not when the outlet is merely inconvenient.

Requisites of the easment (based on de Leon) Isolation must not be due to the claimants own act
1. Claimant must be an owner of enclosed immovable or one with real If he constructs a permanent structure and effectively blocks himself out
right from the pubic highway, then he is stupid and he will not be granted an
2. No adequate outlet to a public highway easement.
3. Right of way must be absolutely necessary
4. The isolation must not be due to the claimants own act The easement must be established at the point least prejudicial to the
5. The easement must be established at the point least prejudicial servient estate
6. There must be payment of proper indemnity The shortest is not always the least prejudicial.
The criterion of least prejudicial shall be observed although the distance
may not be the shortest or is even the longest.
Claimant must be an owner of enclosed immovable or one with real right In other words, this is the TEST - the one where the way is shortest and
Not only the owner but any person who by virtue of a real right may will cause the least damage should be chosen.
cultivate or use an immovable, may demand a right of way. A o But if these two circumstances do not concur in a single
usufructuary may demand a right of way. tenement, the way which will cause the least damage should
1. A mortgagee is not entitled to demand because it is necessary that be used, even if it would not be the shortest.
the land be cultivated or used by virtue of a right like that of a Between a right of way that will demolish a house and
usufruct another one which will merely cut down a tree (yet is
2. A mere lessee cannot demand the legal servitude of way because a longer route to the highway), the latter shall prevail.
his action is against the lessor who is bound to maintain him in the
The rule is different in eminent domain proceedings wherein the grantee
enjoyment of the lease. However, if the lessee registers the lease in
of the power of eminent domain can choose as he pleases, as long as it
the Registry of Property, it becomes a real right, and the lessee
is not capricious and wantonly injurious.
would then be entitled to demand the right of way.
Proper indemnity
No adequate outlet to a public highway
The right can be acquired only after the proper indemnity has been paid.
Covers cases when there is absolutely no outlet or access, or even
If the passage is of continuous and permanent nature (continuous for all
when there is one, the same is not adequate (like when its dangerous,
the needs of the dominant estate), the indemnity consists of the value of
very costly, etc)
the land occupied plus amount of damages caused to the servient
The owner of the servient estate cannot obstruct the use of the
estate; and
easement if the proposed new location for it is farther and is not as
If it is temporary (limited to the necessary passage for the cultivation of
convenient.
the enclosed estate and for the gathering of its crops through the

86
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

servient estate), indemnity consists in the payment of the damage Requisites na naman! (based on Mejorada v Vertudazo)
caused to the servient estate. 1. The estate is surrounded by other immovables and is without
Even if the easement is for a laudable purpose, there is still a need for adequate outlet to a public highway;
compensation. 2. After payment of the proper indemnity
BUT 3. The isolation was not due to the proprietors acts; and
o Where the land was originally public land, and awarded by free 4. The right of way claimed is at a point least prejudicial to the servient
patent and was registered with an OCT and TCT with a estate.
reservation for a legal easement of a right-of-way in favor of One whose land is enclosed by the lands of others at one acquires the
the government, just compensation need not be paid for the right to demand an easement of way to the nearest street or road, but
taking of a part thereof for public use as an easement of a right his failure to do so does not constitute a renunciation of his right nor
of way, unlike if the land were originally private property. (NIA v does the right to demand such easement prescribe under Article 631.
CA) The right to demand a right of way is imprescriptible. (Francisco v Paez)

What are the kinds of easements of right of way?


1. Private, when it is established in favor of a private person, such as the Art. 651. The width of the easement of right of way shall be that which
right granted in Article 649; or is sufficient for the needs of the dominant estate, and may accordingly
2. Public, when it is available in favor of the community or the public at be changed from time to time. (566a)
large.
Width of the passage
Acquisition and extinguishment by prescription It is the needs of the dominant property which ultimately determine the
The easement of right of way, being discontinuous, cannot be acquired width of the passage, and these needs may vary from time to time.
ny prescription. It may be apparent, but it is not a continuous easement. The easement established may thus be changed or modified from time
De Leon gives some reasons why the easement of right of way should to time as the subsequent needs of the dominant estate may demand.
be considered as continuous in page 480 of his book.
Art. 652. Whenever a piece of land acquired by sale, exchange or
Case doctrines partition, is surrounded by other estates of the vendor, exchanger, or
Requisites of the easement (based on Valdez v Tabisula; Lee, co-owner, he shall be obliged to grant a right of way without indemnity.
Villanueva; etc) In case of a simple donation, the donor shall be indemnified by
1. Claimant must be an owner of enclosed immovable or one with real the donee for the establishment of the right of way. (567a)
right
2. Property is surrounded by other immovables and has no adequate Art. 653. In the case of the preceding article, if it is the land of the
outlet to a public highway grantor that becomes isolated, he may demand a right of way after
3. Proper indemnity must be paid paying a indemnity. However, the donor shall not be liable for
4. The isolation is not the result of the owner of the dominant estates indemnity. (n)
own acts
5. The right of way claimed is at the least prejudicial to the servient Where land of transferor or transferee enclosed
estate These two articles are exceptions to the requirement in Article 649
6. To the extent consistent with the foregoing rule, the distance from regarding the payment of indemnity.
the dominant estate to a public highway may be the shortest. If the land transferred is surrounded by other estates of the vendor,
The onus of proving the existence of these requisites lies on the owner exchanger or co-owner, the transferee is not obliged to pay indemnity
of the dominant estate.

87
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

for the easement as the consideration for the transfer is presumed to 1. The joining of the isolated estate to another abutting a public road,
include the easement without the indemnity. and
o If the right of way becomes useless for some reason or 2. Opening a new road which gives access to the estate.
another, it is no longer than transferors fault. Apply Article 642. The new outlet must be adequate.
o Article 652 is not applicable in case of simple donation The extinguishment is not automatic because the law says that the
because the donor receives nothing for his property. owner of the servient estate may demand that the easement be
If it is the land of the grantor that becomes isolated, he may demand a extinguished, if he so desires. So, the dominant owner cannot ask for
right of way but shall be obliged to pay indemnity unless the purchaser the return of the indemnity, if the servient owner chooses to allow the
agreed to grant right without indemnity. continuation of the easement.
o The donor shall not be liable for indemnity as it is considered a The servient owner is not liable to pay interest on the indemnity as the
tacit condition of the donation. interest is deemed to be payment for the use of the easement.

Art. 654. If the right of way is permanent, the necessary repairs shall be Art. 656. If it be indispensable for the construction, repair,
made by the owner of the dominant estate. A proportionate share of the improvement, alteration or beautification of a building, to carry
taxes shall be reimbursed by said owner to the proprietor of the materials through the estate of another, or to raise therein scaffolding
servient estate. (n) or other objects necessary for the work, the owner of such estate shall
be obliged to permit the act, after receiving payment of the proper
Responsibility for repairs and taxes indemnity for the damage caused him. (569a)
This applies if the right of way is permanent.
The servient owner retains ownership of the passageway; hence, he Temporary easement of right of way
pays all the taxes. This applies to a right of way which is essentially temporary or
The dominant owner is liable for the necessary repairs and the transitory.
proportionate share of the taxes paid by the servient owner, meaning It is sufficient that great inconvenience, difficulty, or expense would be
the amount of taxes corresponding to the portion on which the encountered if the easement was not granted.
easement is established. Temporary easement is allowed only after the payment of the proper
indemnity.
Art. 655. If the right of way granted to a surrounded estate ceases to be
necessary because its owner has joined it to another abutting on a Case doctrine
public road, the owner of the servient estate may demand that the The installation of electric power lines is a permanent easement not
easement be extinguished, returning what he may have received by covered by Article 656. Article 656 deals only with the temporary
way of indemnity. The interest on the indemnity shall be deemed to be easement of passage. (Preysler, Jr v CA)
in payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened Art. 657. Easements of the right of way for the passage of livestock
giving access to the isolated estate. known as animal path, animal trail or any other, and those for watering
In both cases, the public highway must substantially meet the places, resting places and animal folds, shall be governed by the
needs of the dominant estate in order that the easement may be ordinances and regulations relating thereto, and, in the absence
extinguished. (568a) thereof, by the usages and customs of the place.
Without prejudice to rights legally acquired, the animal path
Extinguishment of compulsory easement of right of way shall not exceed in any case the width of 75 meters, and the animal trail
This applies to compulsory easement of right of way. that of 37 meters and 50 centimeters.
The two causes of extinguishment are:

88
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Whenever it is necessary to establish a compulsory easement The shares of the co-owners cannot Shares of the co-owners can be
of the right of way or for a watering place for animals, the provisions of be physically segregated but they divided or separated physically.
this Section and those of Articles 640 and 641 shall be observed. In this can be physically identified. Before such division, a co-owner
case the width shall not exceed 10 meters. (570a) cannot point to any definite portion of
the property as belonging to him.
Right of way for the passage of livestock, watering places No such limitation None of the co-owners may use the
The easements shall be governed by the ordinances, regulations, and in community property for his exclusive
their absence, usages and customs of the place. benefit
Animal path max width: 75 meters Any owner may free himself from Partial renunciation is allowed
Animal trail max width: 37.5 meters contributing to the cost of repairs
For drawing waters and for watering animals max width: 10 meters and construction of a party wall by
o In the last case, they can be imposed only for reasons of public renouncing all his rights thereto.
use in favor of a town or barrio and only after payment of the
proper indemnity.
Art. 659. The existence of an easement of party wall is presumed,
SECTION FOUR EASEMENT OF PARTY WALL unless there is a title, or exterior sign, or proof to the contrary:
(1) In dividing walls of adjoining buildings up to the point of
Art. 658. The easement of party wall shall be governed by the common elevation;
provisions of this Title, by the local ordinances and customs insofar as (2) In dividing walls of gardens or yards situated in cities,
they do not conflict with the same, and by the rules of co-ownership. towns, or in rural communities;
(571a) (3) In fences, walls and live hedges dividing rural lands. (572)

Whats an easement of party wall? When is the existence of a party wall presumed?
1. In dividing walls of adjoining buildings up to the point of common
It refers to all those mass of rights and obligations emanating from the
elevation;
existence and common enjoyment of wall, fence, enclosures or hedges,
2. In dividing walls of gardens or yards situated in cities, towns, or in rural
by the owners of adjacent buildings and estates separated by such
communities; or
objects.
3. In fences, walls and live hedges dividing rural lands.
What is a party wall, what is its nature?
The legal presumption is juris tantum; it may be rebutted by a title or
A party wall is a common wall which separates two estates, built by
exterior sign or any other proof showing that the entire wall in
common agreement at the dividing line such that it occupies a portion of
controversy belongs exclusively to one of the adjoining property owners.
both estates on equal parts.
It is a kind of forced co-ownership in which the parties are prt-owners.
Case doctrine
Each owner owns part of the wall but it cannot be separated from the
A wall separating two adjoining buildings, built on the land on which one
other portions belonging to the others.
of these buildings stands, is not a party wall when there is a drain along
An owner may use a party wall to the extent of the portion on his its top to carry away the water from the roof and eaves of the building
property. Not all common walls or walls in co-ownership are party walls. belonging to the owner of the land on which the wall is erected; and also
(A wall built on a co-owned lot is a common wall, not a party wall.) when a part of the wall is covered by the roof of the said building, the
construction of which demonstrates that the wall belongs exclusively to
Party Wall Co-ownership the owner of the building of which it forms part. (Lao v Heirs of Alburo)

89
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

There is a sign contrary to the part-ownership whenever the


Art. 660. It is understood that there is an exterior sign, contrary to the earth or dirt removed to open the ditch or to clean it is only on one side
easement of party wall: thereof, in which case the ownership of the ditch shall belong
(1) Whenever in the dividing wall of buildings there is a exclusively to the owner of the land having this exterior sign in its
window or opening; favor. (574)
(2) Whenever the dividing wall is, on one side, straight and
plumb on all its facement, and on the other, it has similar conditions on Bitches or drains between two estates (hehe)
the upper part, but the lower part slants or projects outward; The deposit of earth or debris on one side alone is an exterior sign that
(3) Whenever the entire wall is built within the boundaries of the owner of that side is the owner of the ditch or the drain.
one of the estates; Again, this is rebuttable.
(4) Whenever the dividing wall bears the burden of the binding
beams, floors and roof frame of one of the buildings, but not those of
the others; Art. 662. The cost of repairs and construction of party walls and the
(5) Whenever the dividing wall between courtyards, gardens, maintenance of fences, live hedges, ditches, and drains owned in
and tenements is constructed in such a way that the coping sheds the common, shall be borne by all the owners of the lands or tenements
water upon only one of the estates; having the party wall in their favor, in proportion to the right of each.
(6) Whenever the dividing wall, being built of masonry, has Nevertheless, any owner may exempt himself from
stepping stones, which at certain intervals project from the surface on contributing to this charge by renouncing his part-ownership, except
one side only, but not on the other; when the party wall supports a building belonging to him. (575)
(7) Whenever lands inclosed by fences or live hedges adjoin
others which are not inclosed. Contribution to cost of repairs and construction of party walls
In all these cases, the ownership of the walls, fences or The part-owners of the party wall shall contribute to the cost in the
hedges shall be deemed to belong exclusively to the owner of the proportion to their respective interests.
property or tenement which has in its favor the presumption based on o But if the cause of the repairs is due to the fault of just one,
any one of these signs. (573) then he alone shall bear the costs.
Any owner may free himself from contributing to the charge by
Exterior signs rebutting presumption renouncing his rights in the party wall unless it actually supports his
This article mentions some exterior signs rebutting the presumption of a building.
party wall. The wall becomes the exclusive property of the owner of the The renunciation will include the land on which the party wall is
estate which has in its favor the presumption based on any of the above constructed.
exterior signs.
The enumeration is merely illustrative, and is not exclusive. Art. 663. If the owner of a building, supported by a party wall desires to
The exterior signs may contradict each other. In such case, the court demolish the building, he may also renounce his part-ownership of the
shall decide the matter taking into consideration all the circumstances. wall, but the cost of all repairs and work necessary to prevent any
o But in case of conflict between a title evidencing ownership to damage which the demolition may cause to the party wall, on this
a wall and an exterior sign, the former must prevail, for the occasion only, shall be borne by him. (576)
latter merely gives rise to an inference of ownership.
Demolish that building! Demolish!
Art. 661. Ditches or drains opened between two estates are also An owner may also renounce his part ownership of a party wall if he
presumed as common to both, if there is no title or sign showing the desires to demolish his building supported by the wall.
contrary.

90
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

He shall bear all the expenses of repairs and work necessary to prevent Art. 666. Every part-owner of a party wall may use it in proportion to
any damage which the demolition may cause to the party wall. the right he may have in the co-ownership, without interfering with the
common and respective uses by the other co-owners. (579a)
Art. 664. Every owner may increase the height of the party wall, doing
at his own expense and paying for any damage which may be caused Proportional use of party wall
by the work, even though such damage be temporary. If Tweet owns 2/3 of the party wall and Plurk owns 1/3, Tweet may use
The expenses of maintaining the wall in the part newly raised the wall (like inserting a beam) up to 2/3 of its thickness, and Plurk can
or deepened at its foundation shall also be paid for by him; and, in do the same up to 1/3.
addition, the indemnity for the increased expenses which may be
necessary for the preservation of the party wall by reason of the SECTION FIVE EASEMENT OF LIGHT AND VIEW
greater height or depth which has been given it.
If the party wall cannot bear the increased height, the owner Art. 667. No part-owner may, without the consent of the others, open
desiring to raise it shall be obliged to reconstruct it at his own expense through the party wall any window or aperture of any kind. (580)
and, if for this purpose it be necessary to make it thicker, he shall give
the space required from his own land. (577) WHAT IS AN EASEMENT OF LIGHT?!?!
Easement of light (jus luminum) is the right to admit light from the
Art. 665. The other owners who have not contributed in giving neighboring estate by virtue of the opening of a window or the making of
increased height, depth or thickness to the wall may, nevertheless, certain openings.
acquire the right of part-ownership therein, by paying proportionally
the value of the work at the time of the acquisition and of the land used WHAT IS AN EASEMENT OF VIEW?!?!
for its increased thickness. (578a) Easement of view (jus prospectus) is the right to make openings or
windows, to enjoy the view through the estate of another and the power
Increase the height of party wall! to prevent all constructions or works which would obstruct such view or
An owner is given the right to increase the height of a party wall subject make the same difficult.
to the following conditions: It necessarily includes the easement of light.
1. He must do so at his own expense;
2. He must pay for any damage which may be caused thereby even if Making of opening through a party wall
damage is temporary; A part-owner cannot exercise an act which implies full ownership of the
3. He must bear the cost of maintaining the portion added; and wall by making use of all its thickness.
4. He must pay the increased cost of preservation of the wall.
Remember, a window in the dividing wall of buildings is an exterior sign
He shall be obliged to reconstruct the wall at his expense if it is which rebuts the presumption that the wall is a party wall. One part-
necessary so that the wall can bear the increased height, and if owner may not, therefore, make any window or opening of any kind thru
additional thickness is required, he shall provide the space therefore a party wall without the consent of the others.
from his own land.
The other owners cannot object to the work as long as the above Art. 668. The period of prescription for the acquisition of an easement
conditions are complied with. of light and view shall be counted:
The owner who makes the addition acquires ownership unless the other (1) From the time of the opening of the window, if it is through
owners pay proportionately the value of the work at the time of the a party wall; or
acquisition (not the construction) and of the land used for the walls (2) From the time of the formal prohibition upon the proprietor
increased thickness. of the adjoining land or tenement, if the window is through a wall on
the dominant estate. (n)

91
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

ripens into title when the specified time has elapsed without opoosition
Prescriptive period for acquisition of easement of light and view on the part of the owner of the wall. (Cortes v Yu Tibo)
The easement of light and view is either positive or negative.
When is it positive?
o It is considered positive if made through a party wall or even if Art. 669. When the distances in Article 670 are not observed, the owner
made on ones own wall, if the window is on a balcony or of a wall which is not party wall, adjoining a tenement or piece of land
projection extending over the adjoining property. belonging to another, can make in it openings to admit light at the
o When a window is opened through a party wall, an apparent height of the ceiling joints or immediately under the ceiling, and of the
and continuous easement is created from the time of such size of thirty centimeters square, and, in every case, with an iron
opening. But there is no true easement as long as the right to grating imbedded in the wall and with a wire screen.
prevent its use exists. Nevertheless, the owner of the tenement or property adjoining
o The adjoining owner can order the window closed within 10 the wall in which the openings are made can close them should he
years from the time of the opening of the window. acquire part-ownership thereof, if there be no stipulation to the
When is it negative? contrary.
o It is considered negative if the window is made through a wall He can also obstruct them by constructing a building on his
land or by raising a wall thereon contiguous to that having such
on the dominant estate.
openings, unless an easement of light has been acquired. (581a)
o The 10-year period of prescription commences from the time of
the formal prohibition (instrument acknowledged by a notary
Openings at height of ceiling joists to admit light
public) upon the adjoining owner.
When the wall is not a party wall, the owner may make an opening for
o Before the expiration of the prescriptive period, the window
the purpose of admitting light and air, but not for view. The restrictions
exists by mere tolerance of the adjoining owner who always
are the following:
retains the right to have it closed or to build an obstruction,
1. The size must not exceed 30 cm square;
although the opening was made more than 10 years after he
2. The opening must be at the height of the ceiling joists or
decided to exercise his right.
immediately under the ceiling;
The opening by Xyzal was made in 1990 but he made
3. There must be an iron grating imbedded in the wall; and
a formal notarial demand prohibiting Yeeyoo to
4. There must be a wire screen.
obstruct the view only in 1994, Yeeyoo may still
When the wall becomes a party wall, a part-owner can order the closure
demand the closure of the window in 2001.
of the opening because no part-owner may make an opening through a
party wall without the consent of the others. It can also obstruct the
Case doctrines
opening unless an easement of light has been acquired by prescription,
When the construction of windows and balconies does not constitute an
in which case the servient owner may not impair the easement.
actual invasion of the rights of another, but is a lawful exercise of an
inherent right, the easement of light and view is negative. (Fabie v
Case doctrine
Lichauco)
If a house consists of more than one story, each story may have the
When a window is opened in a party wall, the express or implied
same openings which are provided by law for one house. The purpose
consent of the part owner affords a basis for the acquisition of a
of the law is to provide light to the rooms and it is evident that the rooms
prescriptive title.
of the lower stories have a much need for light as those of the top story.
When a window is opened in the wall of a neighbor, prescription (Choco v Santamaria))
commences to run from the date of the opening of the windows and

92
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

When the house has been built, with two meters of the dividing line (Art o Its a negative easement because the window is through a wall
670), no other windows than those provided in this article may be of the dominant estate and so prescription may still be
opened in its walls. (Saez v Figueras) acquired after 10 years from the time of notarial prohibition.

Art. 670. No windows, apertures, balconies, or other similar projections Art. 672. The provisions of Article 670 are not applicable to buildings
which afford a direct view upon or towards an adjoining land or separated by a public way or alley, which is not less than three meters
tenement can be made, without leaving a distance of two meters wide, subject to special regulations and local ordinances. (584a)
between the wall in which they are made and such contiguous
property. Where buildings separated by a public way or alley
Neither can side or oblique views upon or towards such The distance in 670 is not compulsory where there is a public way or
conterminous property be had, unless there be a distance of sixty alley provided that it is not less than 3 meters wide.
centimeters.
The nonobservance of these distances does not give rise to Case doctrine
prescription. (582a) A private alley opened to the use of the general public falls within the
provision of Article 672.
Art. 671. The distance referred to in the preceding article shall be
measured in cases of direct views from the outer line of the wall when Art. 673. Whenever by any title a right has been acquired to have direct
the openings do not project, from the outer line of the latter when they views, balconies or belvederes overlooking an adjoining property, the
do, and in cases of oblique view from the dividing line between the two owner of the servient estate cannot build thereon at less than a
properties. (583) distance of three meters to be measured in the manner provided in
Article 671. Any stipulation permitting distances less than those
Direct and oblique views prescribed in Article 670 is void. (585a)
Article 760 requires a distance of:
o For direct view, 2 meters Where easement of direct view has been acquired
o For oblique view, 60 cm The word title as used in Article 673 refers to any of the modes of
Article 761 provides the manner of measuring the distance. acquiring easements (contract, will, donation or prescription).
o For direct view from the outer line of the wall when the Whenever the easement of direct view has been acquired by such title,
openings do not project; from the outer line of the openings there is created a true easement, the owner of the servient estate
when they do project cannot build thereon at less than a distance of 3 meters from the
o For oblique view from the dividing line boundary line.
An owner can build within the minimum distance or even up to the The distance may be increased or decreased by stipulation of the
dividing line provided no window is opened except as provided in Article parties provided that in case of decrease, the minimum distance of 2
669. meters or 60 cm in 670 must be observed. If not, then its void.
When windows are opened, without observing the required legal
distances, the adjoining owner has a right to have them closed.
The non-observance of the distances does not give rise to prescription. SECTION SIX DRAINAGE OF BUILDINGS
o The mere opening of the windows in violation of Article 770
does not give rise to the servitude by prescription. Art. 674. The owner of a building shall be obliged to construct its roof
or covering in such manner that the rain water shall fall on his own
land or on a street or public place, and not on the land of his neighbor,
even though the adjacent land may belong to two or more persons, one

93
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

of whom is the owner of the roof. Even if it should fall on his own land, The legal easement of drainage may be demanded subject to the
the owner shall be obliged to collect the water in such a way as not to following conditions:
cause damage to the adjacent land or tenement. (586a) 1. There must be no adequate outlet to the rainwater because the
yard or court of a house is surrounded by other houses;
What is an easement of drainage of buildings? 2. The outlet to the water must be at the point where egress is
Easement of drainage of buildings is the right to divert or empty the rain easiest, and establishing a conduit for drainage; and
waters from the ones own roof or shed to the neighbors estate either 3. There must be payment of proper indemnity.
drop by drop or through conduits.
SECTION 7. INTERMEDIATE DISTANCES AND WORKS
Rainwater not to fall on land of another FOR CERTAIN CONSTRUCTIONS AND PLANTINGS
This article does not really create a servitude, it merely regulates the
use of ones own property by imposing on him the obligation to collect Art. 677. No constructions can be built or plantings made near fortified
its rain waters so as not to cause damage to his neighbors, even if he places or fortresses without compliance with the conditions required in
be a co-owner of the latter. special laws, ordinances, and regulations relating thereto. (589)
Its an exemption to Article 637 which obliges lower estates to receive
the waters which naturally flow from higher estates. Constructions and plantings near fortified places
This article establishes an easement in favor of the State.
Art. 675. The owner of a tenement or a piece of land, subject to the
easement of receiving water falling from roofs, may build in such Art. 678. No person shall build any aqueduct, well, sewer, furnace,
manner as to receive the water upon his own roof or give it another forge, chimney, stable, depository of corrosive substances, machinery,
outlet in accordance with local ordinances or customs, and in such a or factory which by reason of its nature or products is dangerous or
way as not to cause any nuisance or damage whatever to the dominant noxious, without observing the distances prescribed by the regulations
estate. (587) and customs of the place, and without making the necessary protective
works, subject, in regard to the manner thereof, to the conditions
Easement to receive falling rainwater prescribed by such regulations. These prohibitions cannot be altered
This article deals not with a legal or compulsory easement but with a or renounced by stipulation on the part of the adjoining proprietors.
voluntary easement to receive rain water falling from the roof of an In the absence of regulations, such precautions shall be taken
adjoining building. as may be considered necessary, in order to avoid any damage to the
It is an application of Article 629. neighboring lands or tenements. (590a)

Art. 676. Whenever the yard or court of a house is surrounded by other Construction of aqueduct, well, sewer, etc
houses, and it is not possible to give an outlet through the house itself Constructions which by reason of their nature or products are
to the rain water collected thereon, the establishment of an easement dangerous or noxious must comply with the distances prescribed by
of drainage can be demanded, giving an outlet to the water at the point local regulations and customs of the place. Necessary protective works
of the contiguous lands or tenements where its egress may be easiest, must also be built/done by the owner to avoid damage to neighbors.
and establishing a conduit for the drainage in such manner as to cause The prohibitions cannot be altered by stipulations because of the
the least damage to the servient estate, after payment of the property underlying public policy of safety.
indemnity. (583) Whut up, ang layo mo na! Go go go!
Easement giving outlet to rainwater where house surrounded by other
houses

94
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Art. 679. No trees shall be planted near a tenement or piece of land Kung mahulog yung mangga ni Jhunjhun sa lote ko, akin na ba yung
belonging to another except at the distance authorized by the mangga?
ordinances or customs of the place, and, in the absence thereof, at a Yes. But the falling must occur naturally. So I have no right to pick fruits
distance of at least two meters from the dividing line of the estates if still on branches that extend over my land.
tall trees are planted and at a distance of at least fifty centimeters if This is not based on occupation nor accession, but by operation of law.
shrubs or small trees are planted.
Every landowner shall have the right to demand that trees SECTION 8. EASEMENT AGAINST NUISANCE
hereafter planted at a shorter distance from his land or tenement be
uprooted. Art. 682. Every building or piece of land is subject to the easement
The provisions of this article also apply to trees which have which prohibits the proprietor or possessor from committing nuisance
grown spontaneously. (591a) through noise, jarring, offensive odor, smoke, heat, dust, water, glare
and other causes.
Planting of trees (wow!)
This article establishes a negative easement. Art. 683. Subject to zoning, health, police and other laws and
It provides the minimum distance of trees and shrubs from the boundary regulations, factories and shops may be maintained provided the least
line. possible annoyance is caused to the neighborhood.
They shall be regulated first by local ordinances; and then by the
customs of the place; and in default of both, this interesting article. The Code considers the easement against nuisance as negative
In case of violation, a landowner shall have the right to demand the because the proprietor or possessor is prohibited to do something which
uprooting of the tree or shrub even if it has grown spontaneously. he could lawfully do were it not for the existence of the easement.
However, a nuisance involves any act of ormission which is unlawful.
Art. 680. If the branches of any tree should extend over a neighboring So, these two articles are more of a restriction on the right of ownership
estate, tenement, garden or yard, the owner of the latter shall have the than a true easement.
right to demand that they be cut off insofar as they may spread over
his property, and, if it be the roots of a neighboring tree which should SECTION 9. - Lateral and Subjacent Support (n)
penetrate into the land of another, the latter may cut them off himself
within his property. (592) Art. 684. No proprietor shall make such excavations upon his land as
to deprive any adjacent land or building of sufficient lateral or
Intrusions of branches or roots into neighboring estates subjacent support.
In case of branches, the adjoining owner must first demand that they be
cut-off by the tree owner insofar as they spread over the formers Art. 685. Any stipulation or testamentary provision allowing
property. If the tree owner refuses, he may ask authority from the court. excavations that cause danger to an adjacent land or building shall be
As to the roots, he may cut them off himself if they penetrate into his void.
land without the necessity of giving notice to the tree owner, because,
by right of accession, he has acquired ownership over them. It actually Art. 686. The legal easement of lateral and subjacent support is not
constitutes a direct invasion on his land (grabe naman.) only for buildings standing at the time the excavations are made but
also for constructions that may be erected.
Art. 681. Fruits naturally falling upon adjacent land belong to the owner
of said land. (n) Art. 687. Any proprietor intending to make any excavation
contemplated in the three preceding articles shall notify all owners of
adjacent lands.

95
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

the usufructuary, any servitudes which will not injure the right of
Proprietor prohibited from making dangerous excavations usufruct. (595)
Support is lateral when the supported and the supporting lands are
divided by a vertical plane. Where property held in usufruct
Support is subjacent when the supported land is above and the The owner of property in usufruct may create easements thereon
supporting land is beneath it. without the consent of the usufructuary provided the rights of the latter
An owner, by virtue of his surface right, may make excavations on his are not impaired.
land, but his right is subject to the limitation in Article 684 that he shall
not deprive any adjacent land or building of sufficient lateral or Art. 690. Whenever the naked ownership of a tenement or piece of land
subjacent support. belongs to one person and the beneficial ownership to another, no
Any stipulation or testamentary provision allowing excavations that perpetual voluntary easement may be established thereon without the
violate Article 684 is void. The limitation applies not only to existing consent of both owners. (596)
buildings but also to future constructions.
The notice required in Article 687 is mandatory except where there is Creation of perpetual voluntary easement
actual knowledge of the proposed excavation. A usufructuary may impose on the estate held in usufruct a temporary
The adjacent owner is entitled to injunctive relief and to damages for easement.
violation of the provisions. Where the naked ownership and the beneficial ownership of the estate
belong to different persons, and the easement is perpetual (permanent
CHAPTER 3 right of way, etc), the consent of both the naked owner and the
beneficial owner is required.
VOLUNTARY EASEMENTS
Art. 688. Every owner of a tenement or piece of land may establish Art. 691. In order to impose an easement on an undivided tenement, or
thereon the easements which he may deem suitable, and in the manner piece of land, the consent of all the co-owners shall be required.
and form which he may deem best, provided he does not contravene The consent given by some only, must be held in abeyance
the laws, public policy or public order. (594) until the last one of all the co-owners shall have expressed his
conformity.
Owner of land may constitute easement But the consent given by one of the co-owners separately from
Since easement involves an act of strict dominium, only the owner or at the others shall bind the grantor and his successors not to prevent the
least one acting in his name and under his authority, may establish a exercise of the right granted. (597a)
voluntary easement.
However, a beneficial owner may establish a temporary easement Imposition of easement on undivided property
consistent with his right as such and subject to termination upon the The creation of a voluntary easement on property owned in common
extinguishment of the usufruct. requires the unanimous consent of all the co-owners, because it
involves an act of alteration and not merely an alienation of an ideal
Voluntary easements not contractual share of a co-owner.
Voluntary easements are not contractual in nature, they constitute the The consent may be given separately or successively.
act of the owner. Once consent is given by a co-owner, the same is binding upon him and
his successors unless his consent was vitiated.
Art. 689. The owner of a tenement or piece of land, the usufruct of After the consent of the last of all of the co-owners has been secured, it
which belongs to another, may impose thereon, without the consent of is not necessary for him to give again his consent.

96
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

NUISANCE
Art. 692. The title and, in a proper case, the possession of an easement
acquired by prescription shall determine the rights of the dominant Art. 694. A nuisance is any act, omission, establishment, business,
estate and the obligations of the servient estate. In default thereof, the condition of property, or anything else which:
easement shall be governed by such provisions of this Title as are (1) Injures or endangers the health or safety of others; or
applicable thereto. (598) (2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
Rules governing voluntary easementsano nga ba? (4) Obstructs or interferes with the free passage of any public
1. If created by title, such as contract, will, etc, then by such title; highway or street, or any body of water; or
2. If created by prescription, by the form and manner of possession of the (5) Hinders or impairs the use of property.
easement (see Art 632); and
3. In default of the above, by the provisions of the Civil Code on easement. What is the statutory definition of nuisance?
Nuisance is used to refer either to the harm caused or that which
Art. 693. If the owner of the servient estate should have bound himself, causes harm, or both
upon the establishment of the easement, to bear the cost of the work Negligence is not an essential ingredient of a nuisance but to be liable
required for the use and preservation thereof, he may free himself from for a nuisance, there must be resulting injury to another in the
this obligation by renouncing his property to the owner of the enjoyment of his legal rights.
dominant estate. (599) Anything which: (IASOH)
1. Injures or endangers the health or safety of others
Where servient owner bound himself to bear cost of maintenance of 2. Annoys or offends the senses
easement 3. Shocks, defies or disregards decency or morality
This article applies only where the owner of the servient estate bound 4. Obstructs or interferes with the free passage of any public highway
himself to bear the cost of the work required for the use and or street, or any body of water
preservation of the easement 5. Hinders or impairs the use of property.
He is bound to fulfill the obligation he has contracted in the same way
that such an owner, should he make use of the easement, is bound to Distinguish nuisance from trespass
contribute to the works necessary for the use and preservation of the Nuisance consists of a use of ones own property in such a manner as
servitude. to cause injury to the property or other right or interest of another, and
The servient owner may free himself from his obligation by renouncing generally results from the commission of an act beyond the limits of the
or abandoning his property to the dominant owner. property affected
o The renunciation need not be over the whole servient Trespass is a direct infringement of anothers right of property
tenement, but only on the portion thereof affected by the Where there is no actual physical invasion of the plaintiffs property, the
easement (right of way, etc). however, if the easement affects cause of action is for nuisance rather than trespass. An encroachment
the entire servient estate (like natural drainage), then the upon the space about anothers land but not upon the land itself is a
renunciation must be total. nuisance, and not a trespass.
o In any case, it cannot be tacit or implied; it must follow the form In trespass, the injury is direct and immediate; in nuisance, it is
required by law for transmission of ownership of real property. consequential.

Distinguish nuisance from negligence


TITLE EIGHT Nuisance Negligence

97
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Basis of Regardless of the Want of care


breach of duty degree of care or skill What is a public nuisance?
Violation of An absolute duty, the A relative duty, the failure to use A public nuisance has been defined as
doing of an act which is the degree of care required o the doing of or the failure to do something that injuriously
wrongful in itself under particular circumstances affects safety, health or morals of the public, or
in connection with an act or o works some substantial annoyance, inconvenience, or injury to
omission which is not of itself the public.
wrongful
Where the damage is the necessary consequence of what the What is a private nuisance?
defendant is doing, or is incident to the business itself or the manner in A private nuisance has been defined as one which violates
which it is conducted, the law of negligence has no application, and the
law of nuisance applies. only private rights and produces damage to but one or a
In fine, nuisance is wrongful in itself because of the injury caused few personas, and cannot be said to be public.
regardless of the presence or absence of care, while negligence creates Public Private
liability because of want of proper care resulting to anothers injury. Affects Public at large, or such of The individual or a limited
them as may come in number of individuals only
Case doctrines contact with it
Noise becomes actionable only when it passes the limits of reasonable Remedies Indictable Actionable, either for their
adjustment to the conditions of the locality and of the needs of the abatement or for damages,
maker to the needs of the listener. Injury to a particular person in a or both
peculiar position will not render the noise an actionable nuisance in A nuisance may be both public and private in character. Hence, there
the condition of present living, noise seems inseparable from the are mixed nuisances. It may violate public rights to the injury of many,
conduct of many necessary occupations. while producing special injury to private rights to any extent beyond the
The test to determine noise as nuisance is whether rights of property, injury to the public.
health or comfort are so injuriously affected by the noise that the
sufferer is subjected to a loss which goes beyond the reasonable limit What is a nuisance per se?
imposed upon him by the condition of living. Nuisance per se is an act, occupation, or structure which
The determining factor when noise alone is the cause of complaint is unquestionably is a nuisance at all times and under any circumstances,
not its intensity or volume, but it is that the noise is of such character as regardless of location or surroundings.
to produce actual physical discomfort and annoyance to a person of It is that which affects the immediate safety of persons and property.
ordinary sensibilities, rendering adjacent property less comfortable and (Telmo v Bustamante)
valuable. (AC Enterprises v Frabelle) It is a nuisance of itself because of its inherent qualities, productive of
A negligent or intentional act may constitute a nuisance. Where, after injury or dangerous to life or property without regard to circumstance.
complaint and notice of damage, the defendant continues to offend and Example: A house of prostitution.
refuses to correct or discontinue the nuisance, it is intentional.
What is a nuisance per accidens?
Art. 695. Nuisance is either public or private. A public nuisance affects It is an act, occupation, or structure, not a nuisance per se, but which
a community or neighborhood or any considerable number of persons, may become a nuisance by reason of circumstances, location, or
although the extent of the annoyance, danger or damage upon surroundings.
individuals may be unequal. A private nuisance is one that is not Example: raising of pigs in a house within city limits.
included in the foregoing definition.

98
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

One who maintains on his premises dangerous instrumentalities or


Nuisance per se Nuisance per accidens appliances of a character likely to attract children in play, and who fails
In terms of The thing becomes a Depends upon its location and to exercise ordinary care to prevent children from playing therewith or
proof nuisance as a matter of surroundings, the manner of resorting thereto, is liable to a child of tender years who is injured
law its conduct or other thereby, even if the child is technically a trespasser in the premises.
Its existence need only be circumstances. The reason is that the condition or appliance in question although its
proved in any locatlity, Proof of the act and its danger is apparent, is so enticing to children of tender years as to
without showing specific consequences is necessary. induce them to approach or use it.
damages, and the right to It must be shown by evidence The attractiveness is an implied invitation to such children
relief is established by to be a nuisance under the EXCEPTION: is not applicable to bodies of water, artificial or natural in
averment and proof of the law. the absence of some unusual condition or artificial feature other than
mere act. the mere water and its location.
In terms of May be summarily abated Even the municipal o A swimming pool is not a nuisance.
action under the undefined law of authorities, under their power o A tank of water from an ice plant is not a nuisance as well.
necessity to declare and abate (Hidalgo case)
nuisances, would not have the o What if Jollibee is in the middle of the swimming pool?!
right to compel the abatement Exercise due diligence. Tanggalin yung bubuyog na
of a particular thing or act as a yan!
nuisance without reasonable
notice to the person alleged to Art. 696. Every successive owner or possessor of property who fails or
be maintaining or doing the refuses to abate a nuisance in that property started by a former owner
same at the time and place of or possessor is liable therefor in the same manner as the one who
hearing before a tribunal created it.
whether such a thing
constitutes a nuisance Generally, only the creator of a nuisance is liable for the damge
resulting therefrom.
Case doctrines However, since the injurious effect of a nuisance is a continuing one,
The operation of bus terminals is a legitimate business which, by itself, every successive owner or possessor of property constituting a
cannot be said to be injurious to the rights of property, health, or comfort nuisance who fails or refuses to abate it, has the same liability as the
of the community. Unless a thing is nuisance per se, it may not be original owner.
abated via an ordinance, without judicial proceedings. (Lucena v JAC But of course, the new owenr must have actual knowledge of the
Liner)
nuisance.
The 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 Art. 697. The abatement of a nuisance does not preclude the right of
one affecting the immediate safety of persons and property. Hence, it any person injured to recover damages for its past existence.
cannot be closed down or transferred summarily to another location.
(Parayno v Jovellanos) Are the remedies exclusive?
Injury must not be merely perceived, but must be factual. (Parayno) No.
What is the doctrine of attractive nuisance?

99
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

The action to abate nuisance and the action to recover damages are Property taken or destroyed for the purpose of abating a nuisance is not
distinct remedies either or both of which the plaintiff may pursue at his taken for public use, and there is accordingly no obligation to make
election. compensation for such taking.
The two remedies are concurrent and not exclusive.
The owner of property abated as a nuisance is not entitled to Art. 700. The district health officer shall take care that one or all of the
compensation unless he can show that the abatement is unjustified. remedies against a public nuisance are availed of.

Art. 698. Lapse of time cannot legalize any nuisance, whether public or Art. 701. If a civil action is brought by reason of the maintenance of a
private. public nuisance, such action shall be commenced by the city or
municipal mayor.
General rule: The right to bring an action to abate a public or private
nuisance is not extinguished by prescription. Lapse of time cannot be Art. 702. The district health officer shall determine whether or not
relied upon to legalize a nuisance, whether public or private. abatement, without judicial proceedings, is the best remedy against a
Exception: See Art 631 (2) which expressly prescribes that easements public nuisance.
are extinguished by obstruction and non-use for ten years. (check
book,P558) What is the role of the district health officer and others with respect to public
nuisance?
Art. 699. The remedies against a public nuisance are: The district health officer is charged with the duty to see to it that one or
(1) A prosecution under the Penal Code or any local ordinance: or all of the remedies against a public nuisance are availed of.
(2) A civil action; or Article 702 does not empower the district health officer to abate a public
(3) Abatement, without judicial proceedings. nuisance to the exclusion of all other authorities. His power is simply to
determine whether or not abatement, without judicial proceedings, is the
What are the remedies against a public nuisance? best remedy against a public nuisance.
1. Prosecution under the Penal Code or any local ordinance The action must be commenced by the city or municipal mayor. But a
2. A civil action private person may also file an action if the public nuisance is especially
3. Abatement, without judicial proceedings. injurious to him.
These are not exclusive but cumulative.
All of them may be availed of by public officers, and the last two, by Art. 703. A private person may file an action on account of a public
private persons, if the nuisance is especially injurious to the latter. nuisance, if it is specially injurious to himself.

Abatement without judicial proceedings Does a private person have a right to file action on account of a public
The summary abatement of nuisance without judicial proceedings is nuisance?
recognized and established even in the absence of statute on the Certainly!
ground that the requirement of preliminary formal legal proceedings and A private person may also file a civil action if the public nuisance is
a judicial trial would result in defeating the beneficial object sought to be especially injurious to himself. In other words, the nuisance becomes as
obtained. to him a private nuisance affecting him in a special way different from
Police power of the state includes the right to destroy or abate by a that sustained by the public in general.
summary proceeding whatever may be regarded as a public nuisance, In the absence of a showing of special or unusual damages, differing
subject to constitutional limitations. from those suffered by the general public, a cause of action does not
arise in favor of a private individual

100
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

An action may be maintained by one who is not the sole or even a 2. Abatement, without judicial proceedings.
peculiar sufferer, if his grievance is not common to the whole public, but
is a common misfortune of a number or even a class of persons. In abating a nuisance, a person may even go to the extent of destroying
the damn thing which constitutes the nusicance provided:
Art. 704. Any private person may abate a public nuisance which is a. He commits no breach of the peace nor causes
specially injurious to him by removing, or if necessary, by destroying unnecessary injury, and
the thing which constitutes the same, without committing a breach of b. The procedure for extrajudicial abatement of public
the peace, or doing unnecessary injury. But it is necessary: nuisance prescribed in 704 is complied with
(1) That demand be first made upon the owner or possessor of the
property to abate the nuisance; Art. 707. A private person or a public official extrajudicially abating a
(2) That such demand has been rejected; nuisance shall be liable for damages:
(3) That the abatement be approved by the district health officer and (1) If he causes unnecessary injury; or
executed with the assistance of the local police; and (2) If an alleged nuisance is later declared by the courts to be not a real
(4) That the value of the destruction does not exceed three thousand nuisance.
pesos.
Is there liability for damages in case of extrajudicial abatement?
What are the conditions for extrajudicial abatement of a public nuisance? Yeeeeeeees!
The party injured may remove, and if necessary, destroy thing which A private or public officer may be held liable for damages.
constitutes the nuisance without committing a breach of the peace, or The two grounds of which are:
doing unnecessary damage. a. Unnecessary injury
What should be done? b. The alleged nuisance is later declared by the courts to be
1. Demand be first made upon the owner or possessor of the not a real nuisance.
nuisance
2. Demand must have been rejected BOOK III
3. Abatement be approved by the district health officer and executed
DIFFERENT MODES OF ACQUIRING OWNERSHIP
with the assistance of the local police
4. The value of the destruction does not exceed P3000.
PRELIMINARY PROVISION
Art. 705. The remedies against a private nuisance are:
Art. 712. Ownership is acquired by occupation and by intellectual
(1) A civil action; or
creation.
(2) Abatement, without judicial proceedings.
Ownership and other real rights over property are acquired
and transmitted by law, by donation, by estate and intestate
Art. 706. Any person injured by a private nuisance may abate it by
succession, and in consequence of certain contracts, by tradition.
removing, or if necessary, by destroying the thing which constitutes
They may also be acquired by means of prescription. (609a)
the nuisance, without committing a breach of the peace or doing
unnecessary injury. However, it is indispensable that the
What is mode?
procedure for extrajudicial abatement of a public nuisance by a private
person be followed. Mode is the specific cause which produces them as the result of the
presence of a special condition of things, of the capacity and intention of
What are the remedies against a private nuisance? persons, and of the fulfillment of the requisites established by law.
1. Civil action

101
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

What is title? involve a right in its entirety, or only a part thereof (pledge, mortgage,
Title is the juridical act, right or condition which gives the means to their usufruct).
acquisition but which in itself is insufficient to produce them. Registration is not a mode of acquiring ownership, and other real rights
but only a means of confirming the fact of their legal existence with
notice to the world at large.
In a contract of sale, the contract is the title and tradition, as a
consequence of sale, is the mode. Law as a mode of acquisition?
Sometimes, the mode is at the same time the title (as in with When the Civil Code speaks of law as a mode of acquisition, it refers to
succession) it as a distinct mode or to those cases where the law, independent of the
other modes, directly vest ownership of a thing in a person once the
Mode Title prescribed conditions or requisites are present or complied with.
Directly and immediately produces a Serves merely to give the occasion Examples:
real right for its acquisition or existence 1. Hidden treasure
The cause The means 2. Art 445
Proximate cause Remote cause 3. River beds (Art 461)
Essence of the right which is to be The means whereby that essence is 4. Art 466
created or transmitted transmitted 5. Art 681
6. Art 1434
Contracts only constitute titles or rights to the transfer or acquisition of 7. Art 1456
ownership, while tradition or delivery is the mode of accomplishing the
same. Tradition as a mode of acquistion
Tradition is a derivative mode of acquiring ownership and other real
What are the different modes and titles of acquiring ownership and other real rights by virtue of which, there being intention and capacity on the part
rights? (OLDTIPS) of the grantor and grantee and the pre-existence of said rights in the
1. Original modes or those independent of any pre-existing right of another estate of the grantor, they are transmitted to the grantee through a just
person, namely: title. (whut?)
a. Occupation (condition of being without known owner); and Requisites:
b. Work which includes intellectual creation (creation, i. Pre-existence in the estate of the grantor of the right to be
discovery, or invention) transmitted
2. Derivative modes or those based on a pre-existing right held by another ii. Just cause or title for the transmission
person, namely: iii. Intention on the part of the grantor to grant and on the part of
a. Law (existence of required conditions) the grantee to acquire
b. Donation (contract of parties) iv. Capacity to transmit and to acquire
c. Succession, estate and intestate (death) v. An act which gives it outward form, physically, symbolically or
d. Tradition, as a consequence of certain contracts (contract legally
of the parties), and Purpose: non nudis pactis, sed traditione dominia rerum transferuntur.
e. Prescription (possession in the concept of owner) Ownership is transferred, among other means, by tradition. The delivery
of a thing constitutes a necessary and indispensable requisite for the
The derivative modes are modes both for the acquisition and purpose of acquiring the ownership of the same by virtue of a contract.
transmission of ownership and other real rights. The transmission may Kinds:
a. Real tradition

102
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

b. Constructive tradition What are the requisites of occupation?


i. Symbolic 1. Seizure of a thing
ii. Tradition by public instrument 2. Must be corporeal personal property
iii. Traditio longa manu 3. Must be susceptible of appropriation by nature
iv. Tradition brevi manu 4. Must be without an owner
v. Tradition constitutum possessorium 5. Must be an intention to appropriate
c. Quasi tradition 6. Requisites or conditions laid down by law must be complied with
d. Tradition by operation of law
What constitutes seizure?
What do you actually deliver? It is sufficient that there is an act of taking possession, material holding
Ownership, possession and control of the subject matter. not being essential as long as the possessor considers the thing as
subjected to his control or disposition
What if the vendor points to the vendee a certain house which he already The thing must be corporeal personal property without known owner
sold to the vendee, but there are security guards roaming around the lot? (res nullius) or abandoned by the owner. res communes are not
No tradition. (Ask Jaymie Reyes.) appropriable by nature.
The must be an intent to acquire ownership, otherwise, the seizure
Case doctrines would not be appropriation in the legal sense, but mere material holding.
A stranger to the succession of a dead person cannot conclusively claim
ownership over the subject lot on the sole basis of the waiver document Occupation Possession
which neither recites the elements of either a sale, or a donation, or any Mode of acquiring ownership Merely raises the presumption of
other derivative mode of acquiring ownership. (Acap v CA) ownership when it is exercised in the
An affidavit not accompanied by any instrument showing the sale concept of owner
between a purported vendor and vendee is not a basis of ownership. Corporeal personal property Any property
(Heirs of dela Cruz v Heirs of Quintos) Requires that the object be without May refer to property owned by
For lands of public domain, in order to acquire it by prescription, there an owner somebody
must be a declaration of the State that its alienable and disposable and Requires an intent to acquire Concept of mere holder
a positive act that states that it is no longer needed for public use. Only ownership
at that point will the counting for prescription start. (Heirs of Malabanan) May not take place without some May exist without occupation
form of possession
TITLE ONE - OCCUPATION Short duration Generally of longer duration
By itself, cannot lead to another May lead to another mode, which is
Art. 713. Things appropriable by nature which are without an owner, mode of acquisition prescription
such as animals that are the object of hunting and fishing, hidden
treasure and abandoned movables, are acquired by occupation. (610) What are the ways by which occupation may be effected?
1. By hunting and fishing
What is the concept of occupation? 2. By finding of movables which never had any owner
1. Defined as the appropriation of things appropriable by nature which are 3. By finding of movables which have been abandoned by the owner, and
without an owner. 4. By finding of hidden treasure
2. The seizure of things corporeal which have no owner with the intention
of acquiring the ownership thereof. What about wild animals?
They are possessed only while they are under ones control.

103
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

This article does not apply to a case where a person has found a
When is a thing abandoned, lost or taken by force? domestic animal and kept it for a number of years not knowing its
A thing is considered abandoned when the spes recuperandi owner.
(expectation to recover) is gone and the animo revertendi (intention to A domesticated animal which has not strayed or been abandoned
have it returned) is finally given up by the owner. cannot be acquired by occupation by a person to whose custody it was
A thing has been lost or taken by force is not ipso facto converted into a entrusted
res nullius so as to belong to the first person who takes possession of The periods of two days and twenty days are not periods of limitation,
the same without the necessity of proving the mode of his acquisition but conditions precedent to recovery.
and it may thus be recovered by the original owner.
Art. 717. Pigeons and fish which from their respective breeding places
Art. 714. The ownership of a piece of land cannot be acquired by pass to another pertaining to a different owner shall belong to the
occupation. (n) latter, provided they have not been enticed by some article of fraud.
(613a)
Land 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 This article does not refer to wild pigeons and fish in a state of liberty or
state. that live naturally independent of man. Their occupation is regulated by
But, what about abandoned private land? Art 715.
What is contemplated here are pigeons and fish considered as
Art. 715. The right to hunt and to fish is regulated by special laws. (611) domesticated animals subject to the control of man in private breeding
places.
Do I have a right to hunt and fish? The pigeons and fish must change their breeding place to another
No. belonging to a different owner.
Strictly speaking, no one has a right to hunt or fish. Unless enticed by some artifice or fraud, the shall belong to the owner
The privilege to hunt or fish, however, may be granted and regulated by of the breeding place to which they shall have transferred.
law.
Art. 718. He who by chance discovers hidden treasure in another's
Art. 716. The owner of a swarm of bees shall have a right to pursue property shall have the right granted him in article 438 of this Code.
them to another's land, indemnifying the possessor of the latter for the (614)
damage. If the owner has not pursued the swarm, or ceases to do so
within two consecutive days, the possessor of the land may occupy or Art. 719. Whoever finds a movable, which is not treasure, must return it
retain the same. The owner of domesticated animals may also claim to its previous possessor. If the latter is unknown, the finder shall
them within twenty days to be counted from their occupation by immediately deposit it with the mayor of the city or municipality where
another person. This period having expired, they shall pertain to him the finding has taken place.
who has caught and kept them. (612a) The finding shall be publicly announced by the mayor for two
consecutive weeks in the way he deems best.
This article talks of domesticated, not domestic animals. If the movable cannot be kept without deterioration, or without
With respect to domestic animals, he can claim them even beyond expenses which considerably diminish its value, it shall be sold at
twenty days from their occupation unless there is abandonment on his public auction eight days after the publication.
part. Six months from the publication having elapsed without the
owner having appeared, the thing found, or its value, shall be awarded

104
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

to the finder. The finder and the owner shall be obliged, as the case Art. 724. Special laws govern copyright and patent. (429a)
may be, to reimburse the expenses. (615a)
Title III. - DONATION
Art. 720. If the owner should appear in time, he shall be obliged to pay,
as a reward to the finder, one-tenth of the sum or of the price of the CHAPTER ONE
thing found. (616a)
NATURE OF DONATIONS
See codal for rules. Fairly simple.
Art. 725. Donation is an act of liberality whereby a person disposes
This article is based on the fact that one who lost his property does not
gratuitously of a thing or right in favor of another, who accepts it.
necessarily abandon it. If there is no abandonment, the lost thing has
(618a)
not become res nullius.
Paragraph 4 contemplates implied abandonment.
Concept of donation
In its generic sense, the term donation includes all forms of gratuitous
Title II. - INTELLECTUAL CREATION
dispositions.
Art. 721. By intellectual creation, the following persons acquire The donation the article speaks of and which is governed by Title Three
ownership: is the donation proper or the true (or real) donation, or ordinary
(1) The author with regard to his literary, dramatic, historical, donation.
legal, philosophical, scientific or other work;
(2) The composer; as to his musical composition; What is the nature and effect of donation?
(3) The painter, sculptor, or other artist, with respect to the Although Art 725 defines donation as an act, it is really a contract, with
product of his art; all the essential requisites of a contract.
(4) The scientist or technologist or any other person with It falls under contracts of pure beneficence, the consideration being the
regard to his discovery or invention. (n) mere liberality of the benefactor.
The Civil Code considers donation not among the contracts that transfer
Art. 722. The author and the composer, mentioned in Nos. 1 and 2 of ownership but as a particular mode of acquiring and transmitting
the preceding article, shall have the ownership of their creations even ownership.
before the publication of the same. Once their works are published, As a mode of acquiring ownership, donation results in an effective
their rights are governed by the Copyright laws. transfer of title over the property from the moment the donor is made
The painter, sculptor or other artist shall have dominion over aware of the acceptance by the donee, provided that the donee is not
the product of his art even before it is copyrighted. disqualified or prohibited by law from accepting the donation.
The scientist or technologist has the ownership of his Once accepted, it is generally considered irrevocable, and the donee
discovery or invention even before it is patented. (n) becomes owner of property, except:
1. on account of officiousness,
Art. 723. Letters and other private communications in writing are 2. failure of the donee to comply with the charge imposed on the
owned by the person to whom they are addressed and delivered, but donation,
they cannot be published or disseminated without the consent of the 3. or ingratitude.
writer or his heirs. However, the court may authorize their publication The effect of donation is to reduce the patrimony or asset of the donor
or dissemination if the public good or the interest of justice so and to increase that of the donee. Hence, the giving of a mortgage or
requires. (n) any other security does not constitute a donation.

105
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Requisites of donation Prudent thing to do when drafting deeds of donation: Place an


1. Donor must have capacity to make the donation of a thing or right acceptance clause. So, if court considers it inter vivos, then it would
2. Donative intent (animus donandi) or intent to make the donation out of have been accepted. If court considers it mortis causa, then the clause
liberality to benefit the donee would be a mere superfluity, still open to the acceptance of the donee
3. There must be delivery, whether actual or constructive upon the death of the donor. (Atty Abrenica)
4. Donee must accept or consent to the donation. The purpose of the formal requirement for acceptance of a donation is
to ensure that such acceptance is duly communicated to the donor. The
In certain donations, the form prescribed by law must be followed (See actual knowledge by the donor of the construction and existence of the
Art 748-749) school building pursuant to the condition of the donation fulfills the legal
The subject matter of a donation may be a thing or right. A person may requirement that the acceptance of the donation by the donee be
be a donee although he is incapacitated to enter into a contract if he is communicated to the donor. (Republic v Silim)
not specially disqualified by law to accept donations.
Not enough that the act is gratuitous, there must be an intent to benefit Art. 726. When a person gives to another a thing or right on account of
the donee. the latter's merits or of the services rendered by him to the donor,
The acceptance or consent of the donee is required because no once provided they do not constitute a demandable debt, or when the gift
can be obliged to receive a benefit against his will. imposes upon the donee a burden which is less than the value of the
thing given, there is also a donation. (619)
Case doctrines
The essential elements of donation are as follows: What are the kinds of donation?
o Essential reduction of the patrimony of the donor 1. As to taking effect:
o Increase in the patrimony of the donee a. Inter vivos or that which takes effect during the lifetime of
o The intent to do an act of liberality or animus donandi (Heirs of the donor
b. Moris causa or that which takes effect upon the death of
Florencio v Heirs of de Leon)
the donor
In order that the donation of an immovable property may be valid, the
c. Propter nuptias or that by reason of marriage
deed of donation must be made in a public document. The acceptance
2. As to consideration
must be in a public document as well. (Heirs of Florencio)
a. Pure or simple; or that the cause of which is the pure
Registration of the deed in the Office of the RD or in the Assessors liberality of the donor in consideration of the donees
Office is not necessary for it to be considered valid and official. merits
Registration does not vest title. The necessity of registration comes into b. Remuneratory or compensatory; or that which is given out
play only when the rights of third persons are affected. Furthermore, the of gratitude on account of the services rendered by the
heirs are bound by the deed of contracts executed by their donee to the donor, provided they do not constitute a
predecessors-in-interest. (Heirs of Florencio) demandable debt
A quitclaim is not a donation where those who executed the same c. Modal or that which imposes upon the donee a burden
merely acknowledged the ownership of and better right over the lot by (services to be performed in the future) less than the value
other persons. (Heirs of Reyes v Calumpang) of the gift
Acceptance is necessary in a donation. This applies to all kinds of d. Onerous or that the value of which is considered the
donations because the law does not make any distinction. A donation equivalent of the consideration for which it is given, or that
mortis causa takes effect only after the death of the donor, consequently made for a valuable consideration, and is thus governed
it is only after the latters death that its acceptance maybe made. (Vita v by the rules on oblicon
Montanano) 3. As to effectivity or extinguishment

106
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

a. Pure governed by the rules on obligations and contracts, while the portion
b. Conditional exceeding the value of the burdens imposed, is simple and must follow
c. With a term the form of donations.

Tell me more about remuneratory donations Harry donates to Ron a parcel of land worth 300 galleons2 but Ron has to
In this kind of donation, the motivating cause is gratitude, give another parcel of land or perform some service worth 100 galleons, the
acknowledgment of a favor, a desire to repay for past services transaction is onerous as the 100 galleons which must be in the form of a
A donation given for future services cannot be remuneratory contract of barter or exchange, and simple as to the 200 galleons which
It is necessary that the past services do not constitute a demandable must follow the form of donations.
debt
o A debt is demandable when it can be legally demanded or enforced Case doctrines
by the donee against the donor who has thus an obligation to pay it. An onerous donation is that which imposes upon the donee a reciprocal
But a debt that has been renounced is not a demandable debt. obligation, or to be precise, this is the kind of donation made for a
valuable consideration, the cost of which is equal to or more than the
What about gratuities and pensions? thing donated. (CJ Yulo v Roman Catholic Bishop of San Pablo)
While technically a gratuity is different from a donation, in substance, Since onerous donations are governed by the rules of contracts, the
they are the same. prescription period is 10 years (based on a written contract), and not the
A gratuity is similar to a pension and is essentially remunerative 4-year period based on Article 764 (revocation must be brought within 4
donation. years from the non-compliance of the conditions of the donation). (De
Luna v Abrigo)
Remuneratory donation is one where the donee gives something to
Tell me more about modal donations reward past or future services or because of future charges or burdens,
In a modal donation, a burden (which is necessarily future) less than the when the value of said services, burdens or charges is less than the
value of the gift is imposed upon the donee. value of the donation. (De Luna -> this definition seems wrong as it
If the burden is considered the equivalent of the thing or right given, includes future charges, which are necessarily modal)
then its an onerous donation.
The burden may consist in a real or personal charge which is capable of
being valued in terms of money. Art. 727. Illegal or impossible conditions in simple and remuneratory
donations shall be considered as not imposed. (n)
What are donations with mixed features?
Whats the effect of illegal or impossible conditions?
Strictly speaking, remuneratory donations are those which are given on
account of services rendered by the donee to the donor. Under Article 727, the illegal or impossible condition in a simple or
remuneratory donation would be deemed not imposed following the rule
Modal donations are conditional only in the sense that a burden, charge,
on testamentary dispositions. The donation will be considered as
condition or limitation is imposed y the donor but the burden is not
simiple.
technically a condition in the sense of an uncertain event upon which
the effectitivy or extinguishment of donation is made to depend for it is If the donation is onerous (or modal, as to its onerous portion), the
really a mere obligation imposed by the donor upon the donee as a illegal or impossible condition shall render it void. Being contractual in
consideration
Actually, a modal donation has dual nature, it is partly onerous and
2
partly simple the portion equivalent to the burden is onerous and is As of July 2006, the galleon-dollar exchange rate was 1:16.72. It hasnt gone below
1:15 ever since. Wala lang, boring ng property eh. Harry Potter na lang.

107
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

nature, the rule applicable would be that found in Article 1183 (check completely conveyed to the donee he is still alive
codal, if divisible, only condition will be void) Subject to donors tax Subject to estate tax

Case doctrine
The prohibition in the deed of donation against the alienation of the Designation given to donations not conclusive
property for 100 years should be declared as an illegal or Did the donor intend to transfer ownership of the property donated upon
impossible condition within the contemplation of Article 727. the execution of the donation? If yes, then it is inter vivos. If not, then, it
Consequently, such condition shall be considered as not imposed. is merely mortis causa.
No reliance may accordingly be placed on said prohibitory To take effect at the death of the creditor does not automatically make
paragraph in the deed of donation. (Archbishop of Manila v CA) it mortis causa. Such statements must be construed with the rest of the
instrument.
Art. 728. Donations which are to take effect upon the death of the
donor partake of the nature of testamentary provisions, and shall be Donations to be delivered after the donors death
governed by the rules established in the Title on Succession. (620) A distinction must be made between the actual donation and the
execution thereof
Art. 729. When the donor intends that the donation shall take effect That the donation is to have effect during the lifetime of the donor does
during the lifetime of the donor, though the property shall not be not mean that the delivery of the property must be made during his life.
delivered till after the donor's death, this shall be a donation inter Article 729 speaks of donations in praesenti which take effect during the
vivos. The fruits of the property from the time of the acceptance of the lifetime of the donor but the property shall be delivered after the donors
donation, shall pertain to the donee, unless the donor provides death.
otherwise. (n)
Such are inter vivos although the subject matter is not delivered at
once, or the delivery is to be made post mortem, which is a simple
Inter vivos Mortis causa matter of form and does not change the nature of the act.
Takes effect during the lifetime of the Takes effect upon the death of the
The fruits shall belong to the donee from the time of acceptance unless
donor, independently of his death, donor testator, so that nothing is
otherwise provided by the donor.
even if the actual execution may be conveyed to or acquired by the
deferred until said death donee until said death
Instances
Made out of the donors pure Made in contemplation of his death
generosity without the intention to lose the thing Why is it important to make a distinction between inter vivos and mortis
or its free disposal in case of survival causa?
Valid if the donor survives the donee Void should the donor survive the The distinction between a transfer inter vivos and mortis causa is
donee important as the validity or revocation of the donation depends upon its
Must follow formalities of donations Must follow formalities for the validity nature.
of a will, otherwise void If the donation is inter vivos, it must be executed and accepted with the
Accepted by the donee during his Accepted only after the donors formalities prescribed by Articles 748 and 749, except when it is
lifetime death onerous in which case the rules on contracts apply.
Cannot be revoked except for Always revocable at any time and for If it is mortis causa, the donation must be in the form of a will, with all
grounds provided by law (See 760, any reason before the donors death the formalities for the validity of wills, otherwise it is void and cannot
765) (revocable ad nutum at the transfer ownership. Moreover, mortis causa can be revoked any time
discretion of the grantor) before the death of the donor. (Ganuelas v Cawed)
Right to dispose of the property is Right is retained by the donor while

108
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

2. The before his death, the transfer should be revocable by the


What clauses are found in a deed of donation? transferor at will, ad nutum; but revocability may be provided for
1. Habendum or warranty clause (wherein grantor transfers indirectly by means of a reserved power in the donor to dispose of
ownership) the properties conveyed; and
2. Redendum or reservation clause (wherein grantor reserves 3. That the transfer should be void if the transferor should survive the
something new to himself) transferee (Maglasang v Heirs of Corazon Cabatingan)
3. Acceptance clause One of the decisive characteristics of a donation mortis causa is that the
transfer should be considered void if the donor should survive the donee
Case doctrines (Maglasang)
It is a settled rule that the title given to a deed of donation is not the Donations mortis causa must be executed in accordance with the
determinative factor which makes the donation inter vivos or mortis requisites on solemnities of wills and testaments under Articles 805 and
causa. 806 of the Civil Code
In case of doubt, the conveyance should be deemed donation inter
vivos rather than mortis causa, in order to avoid uncertainty as to the Art. 730. The fixing of an event or the imposition of a suspensive
ownership of the property subject of the deed. (Puig v Penaflorida but condition, which may take place beyond the natural expectation of life
see book which cites the same case but says the opposite) of the donor, does not destroy the nature of the act as a donation inter
Donations inter vivos are immediately operative, even if the actual vivos, unless a contrary intention appears. (n)
execution may be deferred until the death of the donor. Mortis causa,
nothing is conveyed to the grantee and nothing is acquired by the latter, Donation inter vivos subject to suspensive condition
until the death of the grantor-testator, the disposition being until then This article contemplates a situtation where the donor intends the
ambulatory and not final. (Puig) donation to take effect during his lifetime but he imposes suspensive
Acceptance clause is a mark that the donation is inter vivos. condition which may or may not take place beyond his lifetime.
Acceptance is a requirement for donations inter vivos. Donations moris The fact that the event happens or the condition is fulfilled after the
causa are not required to be accepted by the donees during the donors donors death does not change the nature of the act as a donation inter
lifetime. (Gestopa v CA) vivos.
A limitation on the right to sell during the donors lifetime implied that The effect of the fulfillment of the suspensvie condition is retroactive to
ownership had passed to the donees and donation was already the making of the donation.
effective during the donors lifetime. (Gestopa) EXCEPTION: when the donor really intended that the donation should
o Reiterated in Alejandro v Geraldez: Condtion that donees take effect after his death. Thus, mortis causa.
cannot sell during donors lifetime to a third person the donated
property implies immediate passage of ownership and, Art. 731. When a person donates something, subject to the resolutory
therefore donation is inter vivos. condition of the donor's survival, there is a donation inter vivos. (n)
The reservation of lifetime usufruct indicates that the donor intended to
transfer the naked ownership over the properties, thus making it inter Donation inter vivos subject to a resolutory condition
vivos. (Gestopa) In these cases, the ownership of the donated property is immediately
Factors in determining whether a donation is one of mortis causa: transferred to the donee upon perfection of the donation once
1. It conveys no title or ownership to the transferee before the death of acceptance by the donee is made known to the donor.
the transferor; or what amounts to the same thing, that the A donation subject to a resolutory condition takes effect immediately but
transferor should retain the ownership (full or naked) and control of shall become inefficacious upon the happening of the event which
the property while alive; constitutes the condition.

109
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Even if the donation is subject to the resolutory condition of the donors breach of the conditions in the deed. Mere casual breaches will not
survival, the donation is still inter vivos. warrant revocations. (CJ Yulo v RC Bishop)
o I will donate this land to you, but if I survive World War III, I will Considering that the donees acts did not detract from the very purpose
get it back. If I survive World War III, the donation is rescinded. for which the donation was made but precisely to achieve such purpose
If I dont make it, then it continues in effect. (of the donation), a lack of prior written consent of the donor (which was
a condition of the donation) would only constitute casual breach of the
Art. 732. Donations which are to take effect inter vivos shall be deed. (CJ Yulo)
governed by the general provisions on contracts and obligations in all
that is not determined in this Title. (621) Art. 734. The donation is perfected from the moment the donor knows
of the acceptance by the donee. (623)
Art. 733. Donations with an onerous cause shall be governed by the
rules on contracts and remuneratory donations by the provisions of Perfection of donation
the present Title as regards that portion which exceeds the value of the There is no donation without acceptance by the donee.
burden imposed. (622) Acceptance is indispensable because nobody is obliged to receive a
benefit against his will.
Rules governing onerous donations or onerous portions of donations Its absence makes the donation null and void.
This article makes the rules of contracts directly applicable to onerous The acceptance must be made during the lifetime of the donor and the
donations and to remuneratory donations as to the onerous portion donee.
thereof Perfection takes place, not from the time of acceptance by the donee,
Onerous donations are donations for a valuable consideration. They but from the time it is made known, actual or constructively, to the
include those purely onerous or those in which the consideration is donor.
considered the equivalent of the property donated and the modal but If the donation and acceptance are in the same public instrument,
only as regards that portion thereof considered the equivalent of the signed by both and in the presence of witnesses, the donation is
value of the burden imposed. deemed already perfected inasmuch as knowledge of the acceptance is
Remuneratory donations are true or simple donations because the established by the instrument itself.
consideration is really the liberality of the donor since the services If acceptance was made in a separate instrument, there must be proof
rendered by the donee do not constitute a recoverable debt. However, that a formal notice of such acceptance was received by the donor, and
the special rules on revocation should not apply to the portion of the in case the donation involves immovable property, noted in both the
donation equivalent to the equitable value of the services received by deed of donation and the separate instrument embodying the
the donor. acceptance. (See Art 749)
The remuneratory donations referred to in Article 733 are the modal
donations or those which impose upon the donee a burden which is What if there is revocation?
less than the value of the thing given as regards that portion which If the donor revokes the donation before learning of the acceptance by
exceeds the value of the burden, it shall be governed by the provisions the donee, there is no donation.
on donations. But once it is perfected, it cannot be revoked without the consent of the
There is no burden imposed on remuneratory donations. If a burden is donee except:
imposed, it becomes onerous as regards the value of the burden. 1. Inofficiousness (Art 760)
2. Failure of the donee to comply with the charges imposed in the
Case doctrines donation (Art 764)
As onerous donations are governed by the rules on contracts, for there 3. Ingratitude (Art 765)
to warrant a revocation of the donation, there must be a substantial

110
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Is registration necessary? Yes. But they cant give donations to aid any political party or candidate
As between the parties to the donation and their assigns, it is not or for purposes of partisan political activity.
needed for its validity and efficacy. (But it must be in a public document
for immovables!) Who are incapacitated to donate?
But for third parties to be bound, there must be registration. 1. Minors
2. Insane or demented persons
Case doctrines 3. Deaf-mutes who do not know how to write
The purpose of the formal requirement for acceptance of a donation is 4. Corporations (with regard to giving donations to aid any political party)
to ensure that such acceptance is duly communicated to the donor. The 5. Guardians and trustees (with regard to property entrusted to them)
actual knowledge by the donor of the construction and existence of the 6. Spouses (to each other, except moderate gifts)
school building pursuant to the condition of the donation fulfills the legal 7. A spouse (to others without the consent of the other spouse, except
requirement that the acceptance of the donation by the donee be moderate donations)
communicated to the donor. (Republic v Silim)

Art. 736. Guardians and trustees cannot donate the property entrusted
CHAPTER 2 to them. (n)
PERSONS WHO MAY GIVE OR RECEIVE A DONATION
Donation by a guardian or trustee of wards property
Art. 735. All persons who may contract and dispose of their property Generally, guardians and trustees cannot be donors of their wards
may make a donation. (624) properties for the simple reason that they are not the owners of the
same.
Capacity of donor to contract and dispose of property Exception: With respect to the trustee, donation is permitted
The donor must have both the capacity to contract and the capacity to notwithstanding that the trustee receives nothing in exchange directly, if
dispose of his property in order that he may make a donation. the donation is onerous and is beneficial to the beneficiary.
Those who cannot give consent to a contract cannot be donors; and
donation made by one who does not have the free disposal of the thing Art. 737. The donor's capacity shall be determined as of the time of the
donated and to alienate it shall not be valid. making of the donation. (n)
It is possible, however, for a person to have capacity to contract but not
the capacity to dispose of property. Capacity of donor at time of making the donation
o Under the Family Code, every donation between spouses The donation is perfected from the moment the donor knows of the
during the marriage shall be void except moderate gifts on the acceptance by the donee.
occasion of any family rejoicing. The prohibition applies also to However, this article seems to imply that the donors capacity must exist
persons living together as husband and wife without a valid at the time of making the donation and not from the time of knowledge
marriage, or in illicit relations. by the donor of the acceptance, that is, at the perfection of the act
o Neither spouse may donate any community property nor A juridical absurdity arises in case the donor has no capacity to act at
conjugal partnership property without the consent of the other, the time the acceptance is conveyed to him. Since legally, the donor
except moderate donations for charity or on occasion of family cannot be said to have knowledge of the acceptance, there can be no
rejoicing or family distress. perfection of the donation which presupposes a meeting of the minds
between the donor and the donee who are both capacitated.
Can corporations make donations? To avoid the apparent contradiction, the phrase making of the donation
should be construed to mean perfection of the donation

111
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Hence, the donation would be valid, although the donor was insane at 3. Made to a public officer or his wife, descendants and ascendants,
the time he signs the deed of donation or informs the donee of the by reason of his office
donation but sane when he learns of the acceptance. The donor may 4. Between spouses during the marriage, except moderate gifts which
ask for annulment of the donation if he so desires they may give each other on the occasion of any family rejoicing
The subsequent incapacity of the donor does not affect the validity of (Art 87, Family Code)
the donation. This is similar to the rule in succession. 5. Donations of community property by a spouse without the consent
of the other, except moderate donations (Art 98, Family Code)
Art. 738. Al those who are not specially disqualified by law therefor 6. Donations of conjugal partnership property by a spouse without the
may accept donations. (625) consent of the other, except moderate donations (Art 125, Family
Code)
Capacity of the donee 7. Donations to those provided for in Article 740, in cross reference to
Generally, all persons, whether natural or artificial, may be donees. Art 1027 and 1032.
A donee need not be sui juris, with complete legal capacity to bind 8. Donations accepted by agents without special authority to do so
himself by contract. (Art 745)
As long as he is not specially disqualified by law, he may accept 9. Donations of immovables which dont conform to the form
donations. prescribed in Art 749
So, donations may be made to:
1. Incapacitated persons such as minors and others who cannot Donations between persons guilty of adultery and concubinage
enter into a contract, The civil action for declaration of nullity may be brought after the
2. and also to conceived and unborn children. persons involved have been found guilty by final judgment in a criminal
proceeding of adultery or concubinage.
Art. 739. The following donations shall be void: In view of the last paragraph, conviction for adultery or concubinage in a
(1) Those made between persons who were guilty of adultery criminal action is not essential.
or concubinage at the time of the donation; The guilt of the donor and the donee may be proved by a mere
(2) Those made between persons found guilty of the same preponderance of evidence in a civil proceeding to nullify the donation,
criminal offense, in consideration thereof; alleging the adultery or concubinage as the cause of action for the
(3) Those made to a public officer or his wife, descendants and declaration of nullity.
ascendants, by reason of his office. The donation is void, whether made before or after the illicit relations, if
In the case referred to in No. 1, the action for declaration of given in consideration thereof, either as inducement or compensation.
nullity may be brought by the spouse of the donor or donee; and the What if the donation is given in contemplation of the termination of the
guilt of the donor and donee may be proved by preponderance of relationship, is the donation still void?
evidence in the same action. (n) o Since the purpose is praiseworthy, good for all concerned, it should
be considered valid.
Donations void on moral grounds o This is particularly true when the woman (donee) was a victim of
This article declares null and void ab initio the donations referred to. deceit by the man.
o However, where the illicit relation was voluntary, and the donation
What are the different void donations? was demanded by the woman as a price of the termination of their
1. Between persons who were guilty of adultery and concubinage at relationship, the donation is void.
the time of the donation What if the concubine did not know that the man she lived with was
2. Between persons found guilty of the same criminal offense, in actually married?
consideration thereof

112
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

o Then she is not guilty of concubinage and not disqualified from the guardian when the latter is his ascendant, descendant, brother,
donation. sister, or spouse, shall be valid
4. Any physician, surgeon, nurse, health officer or druggist who took
Donations between persons found guilty of the same criminal offense care of the donor during his last illness
This rules presupposes prior criminal conviction in a criminal action; 5. Individuals, associations, and corporations not permitted by law to
hence proof of guilty by mere preponderance of evidence is not inherit.
sufficient. According to Art 1032, there are certain people who are deemed
The donation here is remuneratory or onerous. It is void whether made incapable to inherit by reason of unworthiness. The donation made to a
before or after the commission of the crime if it is in consideration person who falls under any of its provisions is valid if the donor had
thereof. knowledge of the act of unworthiness or having known it subsequently,
It is still void although the crime is not carried out because it is based on he should condone the same in writing. Even in the absence of pardon,
an unlawful cause. the donation is not subject to revocation because donations may be
revoked only for causes mentioned in Articles 760, 764 and 765. So,
Donations made to a pubic officer, by reason of his office who are these people?
Indirect bribery! 1. Parents who have abandoned their children or induced their
The guilt need not be established by proof beyond reasonable doubt in daughters to lead a corrupt or immoral life, or attempted against
a criminal proceeding for bribery. their virtue;
A civil action to declare the donation void may be maintained by the 2. Any person who has been convicted of an attempt against the life
proper party in interest. of the testator, his or her spouse, descendants, or ascendants;
Donations made to persons other than those mentioned are valid, 3. Any person who has accused the testator of a crime for which the
unless, of course, they are intended for the public officer. law prescribes imprisonment for six years or more, if the accusation
has been found groundless;
Art. 740. Incapacity to succeed by will shall be applicable to donations 4. Any heir of full age who, having knowledge of the violent death of
inter vivos. (n) the testator, should fail to report it to an officer of the law within a
month, unless the authorities have already taken action; this
Incapacity to succeed by will prohibition shall not apply to cases wherein, according to law, there
is no obligation to make an accusation;
This article expressly makes the provisions on incapacity to succeed by
5. Any person convicted of adultery or concubinage with the spouse of
will applicable to donations inter vivos
the testator;
Of course, they are also applicable to donations mortis causa which are
6. Any person who by fraud, violence, intimidation, or undue influence
governed by the law on succession
should cause the testator to make a will or to change one already
According to Art 1027, the following are incapable of becoming donees: made;
1. The priest who heard the confession of the donor during his last 7. Any person who by the same means prevents another from making
illness, or the minister of the gospel who extended spiritual aid to a will, or from revoking one already made, or who supplants,
him during the same period conceals, or alters the latter's will;
2. The relatives of such priest or minister of the gospel within the 8. Any person who falsifies or forges a supposed will of the decedent.
fourth degree, the church, order, chapter, community, organization,
or institution to which such priest or minister may belong Who are incapable of becoming donees?
3. A guardian with respect to donations given by a ward in his favor 1. Persons guilty of concubinage or adultery at the time of donation (but
before the final accounts of the guardianship have been approved, only between them)
even if the donor should die after the approval thereof;
nevertheless, any provision made by the ward in favor of the

113
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

2. Persons found guilty of the same criminal offense, in consideration Who are the incapacitated persons referred to here?
thereof (but only between them) They are those specially disqualified by law to become donees, such as
3. Public officers, etc by reason of their office those in Articles 739 and 740.
4. Those mentioned in Art 1027 Donations to such persons are void even if simulated under the guise of
5. Those mentioned in Art 1032 (unworthy people) another contract or through an intermediary.

Art. 744. Donations of the same thing to two or more different donees
Art. 741. Minors and others who cannot enter into a contract may shall be governed by the provisions concerning the sale of the same
become donees but acceptance shall be done through their parents or thing to two or more different persons. (n)
legal representatives. (626a)
Donations of the same thing to different donees
Ok, tell me more about donations to minors and others without capacity to This article expressly makes applicable by analogy the rules on sales3
contact of the same thing to two ore more different vendees.
Donation requires acceptance by the donee. However, this article has had its sure of criticism. See book.
If the donee is a minor or without capacity to enter into a contract, the
acceptance must be made by the parents or legal representative of the Art. 745. The donee must accept the donation personally, or through an
donee. authorized person with a special power for the purpose, or with a
This is especially true if the donation is onerous or imposes a charge or general and sufficient power; otherwise, the donation shall be void.
burden. (630)
It is clear that the donee may not validly accept a donation although it
imposes no burden. Who must accept the donation?
In any case, when a formal or written acceptance is required by the 1. The donee personally, or
donor, such acceptance must be made by the parents or legal 2. An authorized person or an agent, with a special power for the
representative. purpose, or with a general and sufficient power

Art. 742. Donations made to conceived and unborn children may be If not?
accepted by those persons who would legally represent them if they Then, the donation is void.
were already born. (627)
Does the parent of a minor need a special power for the purpose of
Can you donate to conceived and unborn children? accepting a donation? Probably not, a parent is not considered an agent of a
Yes! minor. They are considered legal guardians. (But Im not sure.)
De Leon once again states the obvious by saying, A conceived and
unborn child cannot accept a donation because it is not yet a natural Art. 746. Acceptance must be made during the lifetime of the donor and
person. of the donee. (n)
The acceptance must be made by those persons who would legally 3
represent them if they were already born. Art. 1544. If the same thing should have been donated to different donees, the ownership
shall be transferred to the person who may have first taken possession thereof in good faith,
if it should be movable property. Should it be immovable property, the ownership shall belong
Art. 743. Donations made to incapacitated persons shall be void, to the person acquiring it who in good faith first recorded it in the Registry of Property. Should
though simulated under the guise of another contract or through a there be no inscription, the ownership shall pertain to the person who in good faith was first
person who is interposed. (628) in the possession; and, in the absence thereof, to the person who presents the oldest title,
provided there is good faith.

114
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

What are the rules for the formalities for donations for movables?
When should acceptance be made for inter vivos? When the value of property exceeds P5000, the donation and the
A donation inter vivos takes effect during the lifetime of the donor and acceptance must always be made in writing; otherwise the donation is
the donee, and to take effect, it must be accepted by the donee. void, even if there is simultaneous delivery of the thing.
Hence, acceptance by the donee (or his representative) must be made o The donation and the acceptance need not be made in a public
during his lifetime and that of the donor. instrument, nor is it necessary that the acceptance be made in the
Even if the donation is made during their lifetime, but the donor dies same deed of donation.
before the acceptance is communicated to him, the donation is not When the value of property is P5000 or less, it may be made orally or in
perfected. writing.
o If made orally, there must be simultaneous delivery of the thing or
How about for mortis causa? of the document representing the right donated, otherwise, the
Donations mortis causa are accepted only after the donors death donation is void. There must be acceptance which may be oral or
because they partake of a will, and are governed by the rules on written. The receipt of the delivery by the donee constitutes implied
succession. acceptance.
If the acceptance was made before the donors death, the donation o If made in writing, the donation is valid although there is no
mortis causa although validly executed, cannot be given force and simultaneous delivery. Again, there must be acceptance which may
effect. Such acceptance is void. (But is the donation void? Can there be also be made orally or in writing.
a subsequent acceptance after the death of the donor?) In every case, the acceptance of the donee must be made known to the
donor for perfection of a donation to take place.
Art. 747. Persons who accept donations in representation of others
who may not do so by themselves, shall be obliged to make the Art. 749. In order that the donation of an immovable may be valid, it
notification and notation of which Article 749 speaks. (631) must be made in a public document, specifying therein the property
donated and the value of the charges which the donee must satisfy.
When does this article apply? The acceptance may be made in the same deed of donation or
1. When acceptance is made through the parents, legal representative, or in a separate public document, but it shall not take effect unless it is
authorized agent of the donee; done during the lifetime of the donor.
2. The property donated is immovable, and If the acceptance is made in a separate instrument, the donor
3. The acceptance is not made in the same deed of donation but in a shall be notified thereof in an authentic form, and this step shall be
separate public instrument. noted in both instruments. (633)

The requirement of notification of the donor and notation in both Formalities for donation of immovables
instruments that such notification has been made is necessary for the This article does not apply to onerous donations since they are
validity and perfection of the donation. governed by the laws of obligations and contracts
Donation of real property, which is a solemn contract, is void without the
Art. 748. The donation of a movable may be made orally or in writing. formalities stated in Article 749
An oral donation requires the simultaneous delivery of the
thing or of the document representing the right donated. So, what are the rules?
If the value of the personal property donated exceeds five When donation and acceptance are in the same instrument, the
thousand pesos, the donation and the acceptance shall be made in requirements are:
writing, otherwise, the donation shall be void. (632a) 1. The donation must be in a public document or instrument; and

115
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

2. The instrument must specify the property donated and the charges, The best or primary evidence of a donation of real property is an
if any, which the donee must satisfy. authentic copy of the deed of donation with all the formalities required
When the donation and acceptance are in separate instruments, the by Article 749. When a party wants to prove the contents of a
requirements are: documents, the best evidence is the original writing itself.
1. The donation must be in a public document or instrument; Prior to the introduction of secondary evidence, a party must establish
2. The instrument must specify the property donated and the charges, the existence and due execution of the instrument, after which he must
if any, which the donee must satisfy prove that the document was lost or destroyed. (DECS v Del Rosario)
3. The acceptance by the donee must be in a public document Where the deed of donation fails to show the acceptance, or where the
4. It must be done during the lifetime of the donor formal notice of the acceptance, made in a separate instrument is not
5. The donor must be notified in authentic form of the acceptance of given to the donor or else not noted in the deed of donation and in the
the donation in a separate instrument; and separate acceptance, the donation is null and void. (Sumipat v Banga)
6. The fact that such notification has been made must be noted in
both instruments. CHAPTER 3
o But see the Rep v Silim case wherein the notification was not
EFFECT OF DONATIONS AND LIMITATIONS THEREON
noted in the instrument, but still, the SC ruled that the donation
was valid.
Art. 750. The donations may comprehend all the present property of
the donor, or part thereof, provided he reserves, in full ownership or in
The donation of real property in a private instrument is null and void,
usufruct, sufficient means for the support of himself, and of all
and the donee may not compel the donor to execute a public instrument relatives who, at the time of the acceptance of the donation, are by law
(1357) which applies only when the contract or donation is valid and entitled to be supported by the donor. Without such reservation, the
enforceable. The donation cannot be ratified. donation shall be reduced in petition of any person affected. (634a)
Registration is not necessary for the donation to be considered valid
and effective. Reservation of sufficient means for support of donor and relatives
From the time the public instrument of donation is simultaneously A donor may donate all his present property or part thereof provided he
executed and acknowledged by the donor and the donee, the latter reserves sufficient property in ownership or in usufruct for the support of
acquires the ownership of the donated property, since the execution of a himself and of all relatives who are entitled to be supported by him at
public instrument of conveyance is one of the recognized ways in which the time of the perfection of the donation
tradition of immovable property may be made, unless the contrary is Present property means property which the donor can rightfully dispose
expressed or inferable from the terms of the deed. of at the time of the donation.
Title to immovable property does not pass from the donor to the donee o The share in an existing inheritance is present property
by virtue of donation until and unless it has been accepted in public
although the heir has not yet entered into the possession of the
instrument and the donor duly notified thereof.
same.
Where the donation is on its face absolute and unconditional, it is error
The donation of present property without the required reservation is not
to imply that the possession or usufruct is excluded from the donation or
null and void in its entirety; it is only subject to reduction by the court on
the donation is subject to any charge or burden. The absence in the
petition of the party prejudiced by the donation the donor himself, any
deed of any reservation in favor of the donor is proof that no such
dependent relative or creditor of the donor.
reservation was ever intended considering that under the law, a
The limitation applies to simple, remunerative and modal donations but
donation of immovable by public instrument is required to specify the
not to onerous ones which are governed by the law on obligations and
value of the charges that the donee must assume.
contracts, nor to donations mortis causa for they take effect only after
the donors death.
Case doctrines

116
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

Donations propter nuptias cannot exceed more than one-fifth of the fulfillment of the condition shall retroact to the day of the constitution of
present property of the future spouses if in their marriage settlements the contract.
executed before the marriage, they agree upon a regime other than the Another reason is that the donor by desisting to acquire a future
absolute community of property.4 property donated would be revoking the donation contrary to the rule
that donations inter vivos are irrevocable save for causes provided by
Case doctrines law.
When the dnor stated that she would continue to retain the possession,
cultivation, harvesting and all other rights and atrtributes of ownership Case doctrine
she meant only dominium utile, not the full ownership. The words rights A donor cannot lawfully convey what is not his property. Where a parcel
and attributes of ownership should be construed ejusdem generis with of land was the registered property of another, and the donee failed to
the preceding rights of possession, cultivation and harvesting show how her donor acquired it from the registered owner, it is held that
expressly enumerated in the deed. (Cuevas v Cuevas) the donor has no right, title or interest in said land which he could
lawfully convey.
Art. 751. Donations cannot comprehend future property.
By future property is understood anything which the donor
cannot dispose of at the time of the donation. (635) Art. 752. The provisions of Article 750 notwithstanding, no person may
give or receive, by way of donation, more than he may give or receive
Donation of future property PROHIBITED! by will.
Future property is anything which the donor cannot dispose of at the The donation shall be inofficious in all that it may exceed this
time of the donation. In other words, it is property that belongs to others limitation. (636)
at the time the donation is made and it is immaterial that it may
subsequently belong to the donor. Amount of donation limited to what donor may give by will
Nobody can dispose of that which does not belong to him. Nemo emo. Article 752 makes applicable to donations the limitation on testamentary
Future inheritance cannot be donated because it is future property but disposition with respect to the amount thereof.
upon the death of his predecessor, the inheritance ceases to be future The limitation is really on the right of the donor to give rather than on the
and consequently, may be the object of donation even if the properties right of the donee to receive.
constituting the inheritance have not yet been delivered. A person may not donate more than he can give by will and a person
Property, the acquisition of which by the donor depends upon the may not receive by way of donation more than what the donor is
fulfillment of a suspensive condition, may be donated because, although allowed by law to give by will; otherwise, the donation shall be
the property may be as to him still future property, the effects of the inofficious and shall be reduced with regard to the excess.
The limitation applies where the donor has forced or compulsory heirs.
4
Art. 82. Donations by reason of marriage are those which are made before its celebration, in The purpose is not to diminish the legitimes to which they are entitled.
consideration of the same, and in favor of one or both of the future spouses. (126) o But the limitation is enforceable only after the death of the
Art. 83. These donations are governed by the rules on ordinary donations established in Title III of
Book III of the Civil Code, insofar as they are not modified by the following articles. (127a) donor because it is only then when it can be determined
Art. 84. If the future spouses agree upon a regime other than the absolute community of property, whether or not the donation is inofficious; by contrasting its
they cannot donate to each other in their marriage settlements more than one-fifth of their present value with the net value of the estate of the donor deceased.
property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary succession and
o The donation is valid during the lifetime of the donor.
the formalities of wills. (130a)
Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In Art. 753. When a donation is made to several persons jointly, it is
case of foreclosure of the encumbrance and the property is sold for less than the total amount of understood to be in equal shares, and there shall be no right of
the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for
more than the total amount of said obligation, the donee shall be entitled to the excess. (131a) accretion among them, unless the donor has otherwise provided.

117
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

The preceding paragraph shall not be applicable to donations donor; but if he should die without having made use of this right, the
made to the husband and wife jointly, between whom there shall be a property or amount reserved shall belong to the donee. (639)
right of accretion, if the contrary has not been provided by the donor.
(637) Donation with right of donor to dispose of part of object donated, reserved.
The donor may reserve the right to dispose of some of the things or part
Donation to several donees jointly of the thing donated or some amount or income thereof.
The rules are as follows: The donation is actually conditional, and the condition is fulfilled if the
1. The donation is understood to be in equal shares, unless the donor donor dies without exercising the right he reserved, either by acts inter
has provided otherwise. vivos or mortis causa.
2. There shall be no right of accretion among the donees, unless the
donor has otherwise provided. Ron donates to Harry a house and an apartment with the provision that Ron
3. If the donees are husband and wife, there shall be aright of could sell the house and give the rents (or a portion) of the apartment for 5
accretion, if the contrary has not been provided by the donor. years to Frank. The donation of the house with a reservation of the right to
If there is no accretion among the donees, one cannot accept dispose should be considered mortis causa, and therefore, must follow the
independently for his co-donee who is not present. formalities prescribed for making a will. The donation of the apartment is
inter vivos.
Art. 754. The donee is subrogated to all the rights and actions which in
case of eviction would pertain to the donor. The latter, on the other Art. 756. The ownership of property may also be donated to one person
hand, is not obliged to warrant the things donated, save when the and the usufruct to another or others, provided all the donees are
donation is onerous, in which case the donor shall be liable for living at the time of the donation. (640a)
eviction to the concurrence of the burden.
The donor shall also be liable for eviction or hidden defects in Naked ownership and usufruct separately donated
case of bad faith on his part. (638a) The donor may donate separately the naked ownership (dominium
directum) to one person and the usufruct (dominium utile) to another.
Rights and actions To be valid, the donee must be living at the time of the donation, which
Here are the rules: is to be understood to refer to the time of the perfection of the donation.
1. The donee is subrogated to all the rights and actions which in case A donation to a child who was not yet conceived at the time it was made
of eviction would pertain to the donor is void.
2. If the donation is simple or remunerative, the donor is not liable for If the property donated is immovable, the formalities for donations of
eviction or hidden defects, becaue the donation is gratuitous; real property must be complied with.
3. Even if the donation is simple or remunerative, the donor is liable
for eviction or hidden defects in case of bad faith on his part Art. 757. Reversion may be validly established in favor of only the
(knowingly donating a chicken with avian flu) or warranty is donor for any case and circumstances, but not in favor of other
expressly stipulated; and persons unless they are all living at the time of the donation.
4. If the donation is onerous (modal donation, according to de Leon), Any reversion stipulated by the donor in favor of a third
the donor is liable on his warranty but only to the extent of the person in violation of what is provided in the preceding paragraph
burden. shall be void, but shall not nullify the donation. (614a)

Art. 755. The right to dispose of some of the things donated, or of Donation with provision for reversion
some amount which shall be a charge thereon, may be reserved by the The donor may provide for reversion, whereby the property shall go
back to the donor or some other person.

118
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

It may be validly established for any case and circumstances.


If the revision is in favor of other persons, they must be living at the time Donation in fraud of creditors
of the donation. Presumed in fraud when at the time thereof the donor did not reserve
Thus, a reversion in favor of an unconceived child is void, but such sufficient property to pay his debts prior to the donation.
nullity shall not invalidate the donation. The reversion which is merely The creditors of the donor at the time of the donation may exercise the
an accessory clause is simply disregarded. 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 value. In the
Art. 758. When the donation imposes upon the donee the obligation to latter case, the donee shall answer for damages if he acted in bad faith.
pay the debts of the donor, if the clause does not contain any
declaration to the contrary, the former is understood to be liable to pay Case doctrine
only the debts which appear to have been previously contracted. In no Requisites for an accion pauliana:
case shall the donee be responsible for the debts exceeding the value 1. Credit prior to alienation, even if demandable later
of the property donated, unless a contrary intention clearly appears. 2. Debtor has made a subsequent contract conveying a patrimonial
(642a) benefit to a 3rd person
3. The creditor has no legal remedy to satisfy his claim
Art. 759. There being no stipulation regarding the payment of debts, 4. The act being impugned is fraudulent
the donee shall be responsible therefor only when the donation has 5. The third person who received the property conveyed, if is by
been made in fraud of creditors. onerous title, has been an accomplice in the fraud.
The donation is always presumed to be in fraud of creditors, But remember that accion pauliana is subsidiary.
when at the time thereof the donor did not reserve sufficient property
to pay his debts prior to the donation. (643) CHAPTER 4
REVOCATION AND REDUCTION OF DONATIONS
Liability of donee to pay debts of donor
Here are the rules.
Art. 760. Every donation inter vivos, made by a person having no
1. Where donor imposes obligation upon the donee:
children or descendants, legitimate or legitimated by subsequent
a. The donee is liable to pay only debts previously
marriage, or illegitimate, may be revoked or reduced as provided in the
contracted;
next article, by the happening of any of these events:
b. He is liable for subsequent debts only when there is a
(1) If the donor, after the donation, should have legitimate or
stipulation to that effect; and
legitimated or illegitimate children, even though they be posthumous;
c. He is not liable for debts in excess of the value of the
(2) If the child of the donor, whom the latter believed to be
donation received, unless the contrary is intended.
dead when he made the donation, should turn out to be living;
2. Where there is no stipulation regarding the payment of debts
(3) If the donor subsequently adopt a minor child. (644a)
a. The donee is generally not liable to pay the donors debts;
b. He is responsible therefore only if the donation has been
Grounds for revocation and reduction of donation
made in fraud of creditors (which is always presumed
1. Revocation affects the whole donation and is allowed during the lifetime
when at the time of the donation the donor has not left
of the donor. The grounds are:
sufficient assets to pay his debts)
a. Birth, appearance, or adoption of a child (760);
c. He is not liable beyond the value of the donation received.
b. Non-fulfillment of a resolutory condition imposed by the donor
Ordinarily, the donee should not be made liable to pay the donors debt (764); and
beyond the value of the thing donated. c. Ingratitude of the donee. (765)

119
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

2. Reduction generally affects a portion only of the donation (unless the Here, the donor had no child whether legitimate, legitimated, or
donee has no free portion left) and is allowed during the lifetime of the illegitimate at the time of the donation, and thereafter, a child was born
donor or after his death. The grounds are: even if posthumous.
a. Failure of the donor to reserve sufficient means for support of What if the child was already conceived but not yet born, what provision
himself or dependent relatives; (750) should apply, Article 760 or 771?
b. Failure of the donor to reserve sufficient property to pay off his o It depends.
existing debts (759); o If the donor was aware of such conception, Article 771. Hence,
c. Inofficiousness, that is, the donation exceeds that which the he cannot revoke the donation upon the birth of the child.
donor can give by will; (752, 771) and o But, if he did not know of such conception when he made the
d. Birth, appearance, or adoption of a child. (760) donation, the situation is similar to the appearance of an
A donation that has been duly perfected in accordance with law should absent child thought by the donor to be dead. For purposes of
stand until after its revocation should have been asked and granted in the law, he had no child.
the proper proceeding. The rule is that a conceived child is considered born
for all purposes favorable to it. Since to consider the
Birth, appearance, or adoption of a child child as already born would make the donation
This article applies to all donations inter vivos. It does not apply: irrevocable and would be unfavorable to it, the
a. to donations mortis causa for they are revocable at will by the subsequent birth of the child should revoke or reduce
donor (testator); the donation.
b. to onerous donations for they are really contracts; and
c. to donations propter nuptias for they are revocable only for the Appearance of a child
causes provided in the Family Code see Art 86 of the Fam In this case, the donor had only one child whom he believed to have
Code5. already died at the time of the donation.
It is applicable when the donor, at the time he made the donation, did The note says child, so the subsequent appearance of a descendant,
not have any child or descendant or erroneously thought so; otherwise, like a grandkid, would not revoke the donation
Article 771 in relation to Article 752 shall apply. o But the donation may be reduced under Article 771 as
Every donation is subject to revocation or reduction by the happening of inofficious if it impairs the legitime of the descendant.
any of the events mentioned which are in the nature of implied
resolutory conditions. Adoption of a child
The subsequent adoption of a minor child is also a ground for the
Birth of a child revocation or reduction of a donation.
Its an exception to the rule that a donation inter vivos shall be
irrevocable by the donor.
Again, the law says minor child; hence the adoption of a person of
5
Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases: majority age although it is allowed in certain cases is not a ground under
(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in No. 3.
the marriage settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian, as required by
law; Case doctrine
(3) When the marriage is annulled, and the donee acted in bad faith; Revocation upon birth of a child and return of property to donor are not
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
self-operative or self-executory. There is a need for judicial action.
(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil (Oracion v Juanillo)
Code on donations in general. (132a)

120
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

reduction to the extent that it is inofficious (i.e. P50 P45 [(P50+P40/2) =


Art. 761. In the cases referred to in the preceding article, the donation P50) under article 771.
shall be revoked or reduced insofar as it exceeds the portion that may
be freely disposed of by will, taking into account the whole estate of Case doctrines
the donor at the time of the birth, appearance or adoption of a child. (n) Donor has the burden to allege and establish the requirements
prescribed by law for which the annulment or reduction of the donation
Extent and basis of revocation or reduction can be based. (Cruz v CA)
Birth, appearance, or adoption of a child.
A person may not give by way of donation more than he may give by Art. 762. Upon the revocation or reduction of the donation by the birth,
will. appearance or adoption of a child, the property affected shall be
The amount subject to revocation or reduction is, therefore, the excess returned or its value if the donee has sold the same.
over the portion that may be freely disposed of by will. If the property is mortgaged, the donor may redeem the
The basis of revocation or reduction is the value of the whole estate of mortgage, by paying the amount guaranteed, with a right to recover the
the donor at the time of the birth, appearance, or adoption of a child, same from the donee.
and not at the time of the death of the donor as in the case of inofficious When the property cannot be returned, it shall be estimated at
donations under Article 771. what it was worth at the time of the donation. (645a)
o To the value of the estate shall be added the value of the
donation at the time it was made because it would have been Obligation of donee upon revocation or reduction
still part of the estate had not the donation been made. In case of revocation or reduction under Article 760, the obligation of the
The burden of proof is on the plaintiff-donor who must allege and donee depends upon the situation of the property donated.
establish the requirements prescribed by law. o If the property affected is still in his possession, he must return
In the case of inofficious donations. the same.
What is sought to be protected by Article 760 is only the prospective or o If he has sold the property, he must give its value.
presumptive legitime of the child because that is the only portion which o If the property has been mortgaged by him, and the donor
cannot be disposed of. redeemed the mortgage, he must reimburse the donor.
If the donation does not exceed the free portion at the time of the birth, o If the property cannot be returned, as when it ahs been lost or
appearance, or adoption, there will be no revocation or reduction but it destroyed, he must return its value at the time of the perfection
may still be reduced under Article 771 if it cannot be covered by the free of the donation.
portion computed as of the time of the donors death. It is presumed that the price at which the property is sold is its value.
o If the price is less than its actual value, the donee is not liable
Let us suppose Ron who was then childless, donated a property worth P50 for the difference absent proof of bad faith.
to Erin, a close friend. Subsequently, a child was born to Ron whose estate o When the property cannot be returned, its value shall be
at the time was P30. His total estate then including the value of the property determined not as of the time of the loss but as of the time of
donated was P80. the donation.
Since the legitime of a legitimate child is of the estate or P40, and
therefore, the free portion is also P40, the donation must be reduced by P10. Art. 763. The action for revocation or reduction on the grounds set
But if the value of the estate was P70, the donation is not revoked or forth in article 760 shall prescribe after four years from the birth of the
reduced because it does not exceed the free portion of P60 [(P70 + 50)/2]. first child, or from his legitimation, recognition or adoption, or from the
However, should the estate of Ron be less than P50, excluding the P50 judicial declaration of filiation, or from the time information was
donation, at the time of his death (for example, P40), it shall be subject to received regarding the existence of the child believed dead.

121
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

This action cannot be renounced, and is transmitted, upon the thereon by him being void, with the limitations established, with regard
death of the donor, to his legitimate and illegitimate children and to third persons, by the Mortgage Law and the Land Registration Laws.
descendants. (646a) This action shall prescribe after four years from the
noncompliance with the condition, may be transmitted to the heirs of
Prescription of action for revocation or reduction the donor, and may be exercised against the donee's heirs. (647a)
The donation is revoked ipso jure by operation of law, by the happening
of any of the events mentioned in Article 760. Failure to comply with conditions
o Hence, it is not really essential that an action be brought to A donation may be revoked in case of failure of the donee to comply
revoke the donation. with any of the conditions imposed by the donor upon him.
o BUT, the revocation is not self-operative or self-executory. The word conditions actually refers to obligations, charges, or burdens
If the donee should refuse to comply with his obligation under Article imposed by the donor; it may also refer to a resolutory condition. Hence,
762, resort to judicial action is necessary under Article 763. But since it what is contemplated are onerous or modal donations.
is the law itself that declares the revocation, the action is strictly not an Of course, it implies that there is an existing donation.
action to revoke but one to have the court expressly declare the The condition must be fulfilled within the period fixed by the donor.
revocation which has already taken place by operation of law. o No period? The court shall determine such period as may have
The period within which to bring the action is 4 years. The time to start been contemplated by the donor.
counting depends upon the cause: In case the donee fails to comply, the property donated reverts to the
o Birth of the first child; donor, along with the fruits of the property which the donee may have
o From time of legitimation, recognition or adoption; or received after having failed to fulfill the condition.
o From judicial declaration of filiation If the property has been alienated or mortgaged, the alienation or
o From the time information was received regarding the mortgage shall be void SUBJECT to the rights of innocent third persons
existence of the child believed dead. under registration laws who may have taken the property donated
Not from the actual appearance of the absent child. without notice of the condition imposed. (Public policy baby!)
If the donor dies within the period, the action is transmitted to his In case of non-fulfillment by the donee of any of the conditions imposed
legitimate and illegitimate children and descendants (not the spouse or by the donor, the donation shall be revoked at the instance of the donor.
ascendants of the donor). o But, the donor may instead file for an action of specific
In case more than one cause or ground for revocation or reduction performance to compel the donee to comply with the
concur, the period of prescription must run from the earliest cause. conditions.
Reduction of a donation upon the allegation of impairment of legitime is The action must be brought within 4 years from the non-compliance with
not controlled by a particular prescriptive period for which reason the the condition it can only be brought by the donor or his heirs against
period shall be governed under the ordinary rules of prescription. Under the donees heirs (compare to Articles 769 and 770).
Article 1144, the action must be brought within 10 years from the time The death of the donor or the donee does not bar the action to revoke
the right of action accrues, which is the death of the donor. for failure of the donee to comply with the conditions, provided the
The action cannot be waived. (Compare to the next article!) prescriptive period has not yet expired.
Unlike the action for revocation or reduction under Article 763, the action
Art. 764. The donation shall be revoked at the instance of the donor, may be waived because the condition is purely contractual in nature.
when the donee fails to comply with any of the conditions which the
former imposed upon the latter. Is court action necessary?
In this case, the property donated shall be returned to the In any case, a court action is necessary if the donee refuses to return
donor, the alienations made by the donee and the mortgages imposed the property or to comply with the conditions.

122
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

The deed of donation, however, may provide that violation of any of its contract already deemed rescinded but in order to determine
conditions shall cause the automatic rescission of the contract. In such whether or not the rescission was proper. (De Luna)
case, upon the violation, the donation is automatically revoked, without When the deed of donation expressly provides for automatic rescission
need of a judicial declaration. and reversion of the property donated, the rules on contract and the
o Except where the donee denies the donors right to rescind, in general rules on prescription should apply, not 764. (Roman Catholic
which case, judicial intervention is necessary to determine Archbishop of Manila v CA)
whether or not the rescission is proper. o A donor cannot revoke the donation on the grounds for non-
In the absence of an agreement in the donation providing of an compliance of an impossible condition. (Archbishop of Manila v
automatic rescission, a judicial declaration revoking said donation will CA)
be necessary. A declaration of petitoners absolute ownership appears legally possible
only when the deed of donation is contextually declared peremptorily
Case doctrines revoked. (Dolar v Barangay Lublub)
When land is donated on several express conditions, acceptance by the The act of selling property to a 3rd party cannot be considered as a valid
donee will be understood to include all of the conditions not umistakably act of revocation of the deed of donation for the reason that a formal
rejected. (Barreto v Manila) case to revoke the donation must be filed which speaks of an action that
When the donee has entered into possession of the property, effect will has a prescriptive period of 4 years from non-compliance with the
be given to the donation according to the terms of the offer and condition. In this case, there was no provision of automatic rescission,
acceptance, although the formal deed has not been executed. (Barreto) thus placing the case within the ambit of Article 764. (Austria-Magat v
If there is no fulfillment with the resolutory condition, the donation may CA)
now be revoked and all rights which the donee may have acquired When the donation is onerous and does not fix a period to comply with
under it shall be deemed lost and extinguished. (Central Phil University the condition, the courts should fix a period to uphold the greatest
v CA) reciprocity of rights. If it is gratuitous, then they should not, to uphold the
Article 764 does not apply to onerous donations because onerous least reciprocity of rights and interests.
donations are governed by the rules of Contracts. Hence, the Its important to determine whether or not the donation is onerous or not
prescription period is 10 years, not 4 years. (De Luna v Abrigo) so that we know what law to apply.
o While courts are given the power to fix the duration when the
condition is to be fulfilled when none is given, if the facts show Art. 765. The donation may also be revoked at the instance of the
that a reasonable period has already been allowed the donee donor, by reason of ingratitude in the following cases:
to avail of the opportunity to comply with the condition, then the (1) If the donee should commit some offense against the
courts will no longer give the donee a period. (Central Phil Uni) person, the honor or the property of the donor, or of his wife or
o The legal possibility of bringing the action begins with the children under his parental authority;
expiration of a reasonable opportunity of the donee to fulfill (2) If the donee imputes to the donor any criminal offense, or
what has been charged upon it by the donor. (Sec of Education any act involving moral turpitude, even though he should prove it,
v Heirs of Dulay) unless the crime or the act has been committed against the donee
Nothing in law prohibits parties from entering into an agreement that himself, his wife or children under his authority;
violation of the terms of the contract would cause cancellation thereof (3) If he unduly refuses him support when the donee is legally
even without court intervention. or morally bound to give support to the donor. (648a)
o In cases like these, judicial intervention is necessary not for
purposes of obtaining a judicial declaration rescinding a Revocation by reason of ingratitude of the donee
Article 765 does not apply to donations mortis causa and onerous
donations.

123
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

A donation propter nuptias may be revoked by the donor when the notation of the complaint for revocation in the Registry of Property
donee has committed an act of ingratitude as specified in Article 765. shall subsist.
The enumeration is exclusive and cannot be enlarged. Later ones shall be void. (649)
The act of ingratitude must have been committed by the donee himself
because the duty of gratitude is personal. An act imputable to the Art. 767. In the case referred to in the first paragraph of the preceding
husband or wife or the hot mistress of the donee is not a ground for article, the donor shall have a right to demand from the donee the
revocation. value of property alienated which he cannot recover from third
persons, or the sum for which the same has been mortgaged.
Offense against the donor, etc The value of said property shall be fixed as of the time of the
Criminal conviction is not needed. It is sufficient that the offense be donation. (650)
proved by mere preponderance of evidence in the action for revocation.
If the offense is committed against a child who is no longer under Effect of revocation on prior alienations and mortgages
parental authority, the donation cannot be revoked. If by non-compliance
In case of revocation of a donation by non-compliance by the donee
Imputation to donor of any criminal offense, etc with any of the conditions imposed, alienations and mortgages made by
It is immaterial that the donee can prove his accusation or substantiate the donee are void, subject only to the rights of innocent third persons.
his testimony against the donor. The donor can recover from the donee:
o The exception is when the crime has been committed against o Only the value of the property donated at the time of the perfection
the donee himself, his wife or children under his parental of the donation, OR
authority. o The sum for which it was mortgaged.
o The act involving moral turpitude may not amount to a crime. Recovery cannot be had against the third person unless he acted in bad
faith as when had actual knowledge of the cause for revocation or the filing
Refusal to support the donor of the action.
There are two requisites:
1. The refusal to support the donor must be undue, that is, If by reason of ingratitude
without just reason; and If the revocation is by reason of ingratitude, the alienations and
2. The donee must be legally or morally bound to support the mortgages made by the donee before the complaint for revocation is
donor. annotated in the Registry of Property shall subsist or are valid. Later
Note that ingratitude extends beyond failure to do a legal duty to support alienations and mortgages shall be void.
and includes a moral duty to help. (donee is a friend who is penniless The donor can recover the property from the transferee or
and asks for help, and the donor shuns her away like a scorned lover.) mortgagee.

Case doctrine The donation of land by Ron to Erin was made on July 10. Erin sold the land
All crimes which offend the donor show ingratitude and are causes for to Tara on July 20. The act of ingratitude was done on July 30. The
revocation. Any crime under the Revised Penal Code is one involving complaint for revocation was annotated on August 10. Thus, the sale to Tara
moral turpitude. (Spouses Romulo v CA) is valid, and the remedy of Ron is to recover from Eric the value of the land
at the time of the donation.
Art. 766. Although the donation is revoked on account of ingratitude,
nevertheless, the alienations and mortgages effected before the If the sale was made after August 10, the sale is void and Ron can recover
the land from Tara.

124
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

If the act of ingratitude was committed on July 20, the sale on July 30 and The action granted to the donor for revocation by reason of ingratitude,
the complaint which was filed on July 25 and was annotated on July 31, but like the action based on the birth, appearance, or adoption of a child
at the time of the sale Tara was aware of the act of ingratitude committed by cannot be renounced in advance.
Erin, or the pending action by Ron, the sale should not be considered valid What the law prohibits is waiver, prior to the commission of the act of
because Tara acted in bad faith, and so Ron can recover the land from her. ingratitude.
A past ingratitude can be the subject of a valid renunciation because the
Art. 768. When the donation is revoked for any of the causes stated in renunciation can be considered as an act of magnanimity on the part of
Article 760, or by reason of ingratitude, or when it is reduced because the donor.
it is inofficious, the donee shall not return the fruits except from the The action prescribes
filing of the complaint. 1. Within one year from the time the donor had knowledge of the
If the revocation is based upon noncompliance with any of the act of ingratitude AND
conditions imposed in the donation, the donee shall return not only the 2. It was possible for him to bring the action.
property but also the fruits thereof which he may have received after To bar the action, the donee must show proof that the one-year period
having failed to fulfill the condition. (651) has expired and it was possible for the donor to institute the said action
within the same period.
Return by donee of the fruits of property donated
The rules depend upon the cause of revocation or reduction Art. 770. This action shall not be transmitted to the heirs of the donor, if
o If the cause is: the latter did not institute the same, although he could have done so,
the birth, appearance or adoption of a child, or and even if he should die before the expiration of one year.
ingratitude, or Neither can this action be brought against the heir of the
inofficiousness of the donation (because the donor did not donee, unless upon the latter's death the complaint has been filed.
reserve sufficient means for support), or (653)
he donated more than he could give by will, then
only the fruits accruing from the filing of the Transmission of action for revocation
complaint need be returned. General rule: The action to revoke a donation by reason of ingratitude is
It can be implied that the donation remains valid purely personal to the donor and cannot, as a rule, be transmitted to the
up to the time of the filing of the complaint. heirs.
If the cause is the non-fulfillment of any of the conditions imposed in the This is unlike the action for revocation based on the birth, appearance
donation, the fruits must be returned from the time of the breach of the or adoption of a child and the action based on non-compliance with the
condition. The donation shall also return the property donated. condition of a donation.
In case of inofficious donation which exceeds the free disposal by will, However, the particular circumstances of the case should be taken into
the donation takes effect during the lifetime of the donor, the donee account to determine whether it was possible to bring the action. Hence,
appropriates the fruits, and the reduction may be asked only after the the following exceptions wherein the heirs of the donors can ask for the
donors death. revocation:
1. If the donee killed the donor, or
Art. 769. The action granted to the donor by reason of ingratitude 2. If the donor dies without having known of the act of ingratitude,
cannot be renounced in advance. This action prescribes within one or
year, to be counted from the time the donor had knowledge of the fact 3. If a criminal case against the donee was instituted by the
and it was possible for him to bring the action. (652) donor, but the donor dies before he could bring the civil action
for revocation; or
Renunciation and prescriptive period of action by reason of ingratitude

125
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

4. If the action for revocation has already been filed by the donor (1) Donations shall be respected as long as the legitime can be covered,
before his death. reducing or annulling, if necessary, the devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata, without any
Action against heirs of donee distinction whatever. If the testator has directed that a certain devise or
The heirs of the donee are not held responsible for the acts of their legacy be paid in preference to others, it shall not suffer any reduction until
predecessor-donee. The act of ingratitude. (The sins of the father are the latter have been applied in full to the payment of the legitime.
not the sins of the son although, there are some instances where we (3) If the devise or legacy consists of a usufruct or life annuity, whose value
repeat the mistakes of our parents. General rule? Learn.) may be considered greater than that of the disposable portion, the
But if the donor has already filed the complaint before the donees compulsory heirs may choose between complying with the testamentary
death, the suit may be continued against his heirs. provision and delivering to the devisee or legatee the part of the inheritance
of which the testator could freely dispose. (820a)
Art. 771. Donations which in accordance with the provisions of Article Art. 912. If the devise subject to reduction should consist of real property,
752, are inofficious, bearing in mind the estimated net value of the which cannot be conveniently divided, it shall go to the devisee if the
donor's property at the time of his death, shall be reduced with regard reduction does not absorb one-half of its value; and in a contrary case, to the
to the excess; but this reduction shall not prevent the donations from compulsory heirs; but the former and the latter shall reimburse each other in
taking effect during the life of the donor, nor shall it bar the donee from cash for what respectively belongs to them.
appropriating the fruits. The devisee who is entitled to a legitime may retain the entire property,
For the reduction of donations the provisions of this Chapter provided its value does not exceed that of the disposable portion and of the
and of Articles 911 and 912 of this Code shall govern. (654) share pertaining to him as legitime. (821)

Reduction of inofficious donations Art. 772. Only those who at the time of the donor's death have a right to
Donations which are inofficious because they are more than what the the legitime and their heirs and successors in interest may ask for the
donor can give by will shall be reduced with regard to the excess upon reduction or inofficious donations.
the death of the donor, after determining the net value of the estate. Those referred to in the preceding paragraph cannot renounce
Thus, it follows that the donation is effective during the lifetime of the their right during the lifetime of the donor, either by express
donor and so, the donee, as owner of the property donated also declaration, or by consenting to the donation.
becomes owner of the fruits, although the donation should appear The donees, devisees and legatees, who are not entitled to the
inofficious. legitime and the creditors of the deceased can neither ask for the
For donations propter nuptias, they may be reduced for being reduction nor avail themselves thereof. (655a)
inofficious. Being liberalities, they remain subject to reduction for
inofficiousness upon the donors death, if they should infringe the Persons entitled to ask for reduction who are they?
legitime of a forced heir. For the reduction of inofficious donations,
The action to reduce the inofficious donation must be brought within 5 1. those who at the time of the donors death have a right to the
years from the time of the donors death. legitime, and
For reduction of donations, the following articles, quoted below shall 2. their heirs, and
govern: 3. succesors in interest.
The donor is not included, patay na siya eh. The inofficiousness can
Art. 911. After the legitime has been determined in accordance with the three only be determined after his death.
preceding articles, the reduction shall be made as follows:
Who may not ask for reduction?
1. The donees, or

126
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

2. The devisees, or believed dead


3. The legatees, who are not entitled to the legitime. Transmissibility of Transmitted to May be Generally, the
4. Creditors of the deceased. (The remedy of creditors is to file a claim action children and transmitted to action is not
against the estate of the deceased, but not against the owners of the descendants of the donors heirs transmitted to
donated property.) the donor upon and may be the heirs of the
his death exercised donor nor can
Renunciation of right to ask for reduction can it be done? against the the action be
The right to ask for the renunciation of inofficious donations cannot be donees heirs filed against the
renounced during the lifetime of the donor, ether by express declaration heirs of the
or by consenting to the donation. donee
Effect of Property affected Property Property
773. If, there being two or more donations, the disposable portion is revocation shall be donated shall be donated shall be
not sufficient to cover all of them, those of the more recent date shall returned, or its returned to the returned but
be suppressed or reduced with regard to the excess. (656) value if the donor and the alienations and
donee has sold alienations and mortgage
Reduction where there are two or more donations the same, or mortgages are effected before
The subsequent donations shall first be reduced and only if they are not The donor may void subject to the notation of
sufficient to cover the disposable portion should the earlier ones be redeem the the rights of the complaint for
reduced also with regard to the excess. mortgage on the innocent 3rd revocation in the
If the two donations were perfected at the same time, the reduction property, with a persons Registry of
should be proportionate unless otherwise provided by the donor. right to recover Property shall
the property subsist
Rules on revocation CHARTED! Liability for fruits Donee shall Donee shall Same as in first
return the fruits return the fruits column
REVOCATION, Birth, Non-compliance Ingratitude accruing from which he may
based on appearance, or with condition or the filing of the have received
adoption of a conditions complaint after having
child failed to fulfill
Time of action Within 4 years Within 4 years Within 1 year the condition
from birth of first from non- from the time
child, or compliance with the donor had Rules on reduction CHARTED!
From his the condition knowledge of
legitimation, or the fact of the REDUCTION, Failure of the Inofficiousness Birth, Fraud
Adoption, or But if its an ingratitude based on donor to for being in appearance against
From the judicial onerous reserve excess of what , or creditors
declaration of donation, within sufficient the donor can adoption of
filiation, or 10 years from means for give by will a child
From receipt or non-compliance support
info regarding with the Time of action Any time by Within 10 Same as in The action
the existence of condition the donor or years (Santos first column for
the child by the v Alana case, rescission

127
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!
+
Ad Majorem Dei Gloriam

PROPERTY NOTES

relatives based on must be property property of the be


entitled to 1144) brought donated property not returned. In
support within 4 affected by case the
during the Within 5 years years from the donee
lifetime of after the death the reduction, acted in
the donor of the donor (if perfection but with bad faith
propter of the regard to and it
nuptias, donation, or the excess, should be
according to at the he shall be impossible
book) latest, from liable only for him to
the time the for the fruits return, then
creditor had from the indemnify
knowledge filing of the the donors
of the complaint creditor for
donation damages.
Transmissibility Not Transmitted to Same as in Transmitted
of action transmissible the donors first column to the Happy the man who finds wisdom, the man who gains understanding!--
as the duty heirs as the creditors Proverbs 3:13
to give donation shall heirs or
support and be reduced as successors- Thus you may walk in the way of good men, and keep to the paths of the
the right to regards the in-interest just. For the upright will dwell in the land, the honest will remain in it; But the
receive are excess at time wicked will be cut off from the land, the faithless will be rooted out of it.--
personal in of the donors Proverbs 2:20-22
nature death
Effect of Reduced to Takes effect Same as in Property
revocation the extent during the first column affected
necessary to lifetime of the shall be
provide donor subject returned by
support to reduction the donee
only upon his for the
death with benefit of
regard to the the creditor
excess subject to
the rights of
innocent
third
persons
Liability for Donee is Donee Donee, as Fruits of the
fruits entitled to appropriates owner, property
the fruits as the fruits as appropriate affected
owner of the owner of the s the fruits shall also

128
Mickey Ingles
Ateneo Law 2012
Librat: No stamping please!