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PROPERTY anticipation.

The law already anticipates they subsequently becoming

movable. So even before they are gathered, there is already
ART. 415 mobilization by anticipation and they can be the subject of a chattel

industry is carried on in this building where the repair shop is located. - Forces of nature which are brought under control by science:
The transportation business is carried on outside, not here. The repair nuclear power, wind power, electricity.
equipment is not immobilized but remained personal property. - Shares of stock in any corporation MOVABLE. Regardless
that the corporation which the shares are held has real property
or even when all of the assets of corporations consist of real
Can the parties agree that certain machinery which has been installed
by the owner of the tenement for the industry or works which will be CLASSIFICATION OF PROPERTY OF PUBLIC DOMINION or
carried on and which tend the need of such industry works? Can the PRIVATE OWNERSHIP
owner of such machinery and a creditor agree to treat this machinery
as personal property? Subject them to chattel mortgage? ART. 420

- YES. Principle of Estoppel would apply. Although the PUBLIC DOMINION: THOSE intended for public use, public service,
machinery inside the building and installed by the owner and or for the development of the national wealth.
they tend to meet directly the needs of industry / works which
may be carried on in that building, if the parties agree to treat - Public use (roads, street, parks).
the machinery as chattel and enter into a chattel mortgage, - Court: if it is open indiscriminately to the public, open for
neither of the will be permitted to question the validity of chattel everyone. Anyone can go there and use it (streets).
mortgage later on the ground that the subject was actually real

PAR. 6: if there is a pigeon house, permanently attached to the land, 1) The made the subject matter of contracts.
the pigeons in the pigeon house are also considered real property. Of 2) Sold.
course, pigeons sometimes fly around. 3) Leased.
4) Acquired by prescription.
- Or in the case of fish ponds, the bangus (immovable even 5) Attached and sold to public auction to satisfy any judgment.
swimming around). 6) Burdened by an easement.
- For purposes of sale, however, they are considered movable 7) Register or title them under your name under torrens title
property. system. If title is issued covering property of public dominion
o So if you enter a contract of sale for the bangus on your not a valid title.
fish pond, that is not a sale of real property. It is a sale
- If you donate the bangus to someone, it is a donation of
personal property. 1) Patrimonial Property: just like ordinary property, they can be
subject of contracts.
PAR. 7: Insecticides same rules should apply. 2) Property of Public Dominion: as long as it remains such is
subject to special rules.
PAR. 8: the waters referred to are natural waters. - Is it possible to convert property of public dominion to
patrimonial property? YES.
- So if you have several drums of water in your yard because - Will a mere fact of property of public dominion is no
water in your area is scarce not covered by PAR. 8. longer actually being used for public use or no longer
- Water in rivers, lagoons, lakes. actually being devoted for public service, will that
automatically convert from public dominion into
PAR. 9: patrimonial property? NO.
- A barge in a fixed place (real property even if its floating): as - There must be a formal declaration (by the executive or
long as it is at a fixed place. the legislative) in the case of national government
- NAPOCOR and other private companies have these power property. Otherwise, it will remain property of public
barges (dock along shore, port supply electricity to island dominion.
provinces): they remain there for a considerable period of time - Property of political subdivisions: conversion must be
REAL PROPERTY. authorized by law.
- Floating restaurants but remains at a fixed place REAL.
- BUT if it is actually a boat which take on passenger, and goes
on a cruise on Manila Bay, while cruising around, dinner is ROPONGGI CASES
served MOVABLE.
- Involving the property of Philippines located in Japan, which
PAR 10: are given to us by way of reparation by the Japanese as part of
Reparations Agreement. They were originally intended for the
ART. 416 417 use of our Embassy, but never used for that purpose. After long
period of time, there was an attempt to sell the properties.
Certain real property, by special provision of law are also considered - SC: The mere fact that the properties in Japan have not been
as PERSONAL PROPERTY. actually used for their original purpose doesnt automatically
convert the property into patrimonial property.
- Example: growing crops: under certain provision of law are - Still part of the public domain and consequently not available
movable/personal, CHATTEL MORTGAGE LAW, provision on for private appropriation or ownership until theres a formal
sales. declaration on the part of government to withdraw it from being
- Abandonment cannot be inferred. It must be definite.
SIBAL VS. VALDEZ: While they are still growing, its a mobilization by

- On the part of Local Government Entities (like the State):
properties are subdivided into properties for public use and CHAVEZ VS PEA: There was this agreement between the Public
patrimonial property. Estates Authority and Amari. Amari would reclaim certain submerged
lands, as payment, it would be paid with reclaimed lands.
PUBLIC USE: it must be open indiscriminately to the public.
- SC ruled: with respect to the reclaimed lands on Freedom
- In some cases, however, the SC in determining whether Island (157 hectares) which are covered by titles under PEA,
properties of a government unit should be considered as public they are ALIENABLE lands of public domain.
or patrimonial, the SC has opted to apply the special laws - But they may only be LEASED NOT SOLD to private
governing municipal corporations. corporations.
- They may be sold to Filipino Citizens.
- SUBMERGED AREAS: inalienable, outside the commerce of
ZAMBOANGA: we cannot possibly decide this case strictly along the - Only after the PEA reclaimed them may the government re-
lines and parameters set by the Civil Code in determining what classify them as alienable and disposable lands, if no longer
properties are for public use and what properties are private. This needed for public service.
involves creation of a new government, carved out of former political - The transfer of submerged land into Amari = VOID, since the
unit. Constitution prohibits the alienation of our National Resources
other than the agricultural land of the public domain.
- In this case, and in other cases involving local government, the - There are many separate opinions on that case, but stick to the
SC instead considered the USE of the property. main decision.
- Whether it is for governmental purposes or not.
- As long as the property was used for governmental purposes, it
was considered property for public use / public property. OWNERSHIP: traditional attributes (Rights of an owner):

1) Right to USE.
2) Right to THE FRUITS.
SALAS VS JARENCIO: In the absence of clear evidence as to the 3) Right to CONSUME the thing but its use: does not mean right
source of the funds used in acquiring the property which was currently to abuse.
being held by the local government unit, the presumption is that the 4) Right to DISPOSE.
property / land came from the state. 5) Right to VINDICATE/RECOVER.

- So if a LGU has a property = no clear showing of funds used or LIMITATION ON THE RIGHTS OF OWNERSHIP:
as to how it acquired the property= presumption is the land
came from the state and LGU is holding merely in TRUST for - Comes from the State (Inherent powers of government: police
the state, for the benefit of inhabitants of the locality. power, eminent domain, taxation).
- If that is so, it cant be considered as patrimonial property; they - Imposed by specific provision of law (provisions of the CC
will still be public property. regarding easements).
- National Legislative is deemed to have absolute control over - Imposed by person transmitting property (if I am donating
this property. property to you, I may impose, in the Deed of Donation, certain
limitation on your use of the property, for example).

- In some cases decided by the SC, it has been made clear that ART.429
LGUs cant enter into contracts and cant validly authorize by
means of ordinance, the awarding of contracts in a certain DOCTRINE OF SELF-HELP: an owner or lawful possessor is allowed
streets in favor of private individuals for purposes of having a by law the use of such force as may be reasonably necessary to repel
flee market there. or prevent an ACTUAL or THREATENED unlawful deprivation or
- As long as the streets remain the street, its for public use and physical invasion or usurpation of his property.
therefore, it is beyond the power of local government unit to
deal with by means of contracts. - Only reasonable force should be used.
- The doctrine can be invoked only at the time when there is
ACTUAL or THREATENED unlawful physical invasion, NOT
There is a case: LGU enters into a contract. A certain street was THEREAFTER.
converted into a flea market. The ordinance authorized it. - If property has already been taken by 3 rd person, you are NOT
ALLOWED to use force to get it back. You must invoke the aid
- SC ruled: IT CANT BE. of judicial authorities.
- What is quite clear from these cases is that while even under
Local Government code, LGUs unit are allowed to withdraw
certain streets when no longer necessary, to withdraw from GERMAN MANAGEMENT& SERVICE INCORPORATED: here was a
public use. land owner, he wanted to develop his property, he executed a power of
- They cant have their cake and eat it to. They cannot convert it attorney in favor of German Management service to develop such
without actually withdrawing it from public use. They will still property. German Management went to the property and discovered
maintain it as a street and at the same time operate it as a flea that certain individuals are occupying and cultivating the property. So
market cannot be done. German Management used physical force to oust these occupants
- Di pwede yan. As long as they are not withdrawn from public who are cultivating portions of the property. Later on they invoked the
use, they remain property of public use and you cant at the doctrine of self-help.
same time enter into contracts with private individuals who
intend to operate flee market. Kung gusto niyong iwithdraw, - SC ruled: NOT PROPER, because it is not disputed that when
iwithdraw niyo. That street will cease to be a street; only after they tried to enter property, those occupants were already
that can you deal with it as patrimonial property, but not while it there, they had been cultivating land for some time.
is a street. - A party in peaceable, quiet possession shall not be turned out
by a strong hand, violence or terror, according to the Court.
ACTUAL and THREATENED dispossession. When possession

already lost, the owner must resort to judicial process for the - The view has been advanced, to which I agree, that negligence
recovery of his property. He cannot take the law into his own on the part of the person interfering has not preclude resort to
hands. the rule.

If for example, while I was using my CAR, another vehicle owned and
ART.430 driven by X (recklessly slammed into a Meralco post), started to burn.

The owner of the property has the right to enclose property with a - Under this article, Mr.X (even though negligent in driving his
fence, a wall, or any other means. car) would have the right to interfere with my property if I
happen to have a fire extinguisher, I dont have a right to
prohibit the interference to use the fire extinguisher. His
CUSTODIO VS CA negligence doesnt preclude him from invoking the rule under
Art. 432.
- There was a property owned by a person. There was no fence - Obviously, any possible damage of my fire extinguisher is
around his property so some of his neighbors were passing lesser than the damage which would result to the burning of his
through his land to reach the public road. Later on, the property car.
owner decided to enclose it with a fence. Consequently, - The requirements of this article are ment.
neighbor cant pass through his land and had to take another
route to reach the public street. They filed a case for damages.
- SC ruled: Damnum absque injurie. ART.433
- The property owner is simply exercising a right explicitly
granted to him by law: the right to enclose his property with a Actual possession under claim of ownership raises a disputable
fence. In a meantime, great inconvenience was caused to his presumption of ownership. The true owner must resort to judicial
neighbors, but these neighbors have no legal right to claim process for the recovery of the property.
damages. Its just too bad.
- When the case was decided, there was no EASEMENT YET. It ART.434
was only after the case was decided that the Court said an
easement should be created and SC ruled that they should pay Action to recover requisites:
- As long as theres no easement yet, you have perfect right to 1) Property must be identified.
enclose your property with a fence. 2) Plaintiff must rely on the strength of his title and not on the
weakness of the defendants claim he who alleges, has the
burden of proof.

ART.431 ART.435

A property owner has the jus utendi, the right to use his property Reinstatement of Constitutional Law: one of the inherent powers of the
should be exercised in such a way as not to injure others. state.

- But the right to use ones property must be exercised in such a - Power of eminent domain: property may be taken for public use
way as not to injure others. as long as there is payment of just compensation.
- Use your own as not to injure others.

In one case, there were two adjoining properties. The owner of the Police power: the moment the state/government exercises it, then
higher property built certain artificial bodies of water: artificial lakes, property rights must necessarily yield.
water pots, etc. Unfortunately, during inclement/bad weather, some of
these constructions were washed away and they fell to the adjoining - If property was taken, damaged or destroyed as a
lower estate. consequence in the exercise of Police Power, there is no right
to any indemnity. The only possible indemnity you get is the
- SC ruled: DISMISSED. feeling of satisfaction that somehow you have contributed to
- The case should be reinstated. Applying Art.431, while you the common good.
have the right to use your property, you have to use use your
own as not to injure others. ART.437
- Obviously, the Court considered the construction of artificial
bodies of water on the higher estate as something which The owner of the property is the owner not only on its surface but of
causes, during bad weather, some damage or prejudice to the everything under it.
adjoining lower estate.
- Of course, that doesnt necessarily mean that everything to be
taken under it should be literally construed.
- Exception: if there are minerals, they do not belong to you. That
ART.432 belongs to the State (Regalian Doctrine).
- Up to what depth that a person can be the owner on what is
EMERGENCY DOCTRINE/RULE beneath your land? Does that extend up to the middle of the
earth? RULE OF THUMB: it extends up to such depth that you
- If you are the owner of a thing, you have no right to prohibit the can still make use of it.
interference of another person with your property as long as
the interference is necessary to prevent an imminent danger
and as long as the threatened damage or injury is greater MPC VS IBRAHIM
(much greater) than the damage which would arise to you from
the interference with your property. - In this case, it would seem that it is quite deep, as far as the
view of the SC.
- Here was a property owner, unknown to him, the MPC

constructed a tunnel passing beneath his land because this produced by that property, or which is incorporated by that property, or
happened somewhere in Mindanao. MPC is drawing water attached, either naturally or artificially.
from Agos River, one of the big rivers there.
- - The owner has the right by accession to everything produced,
So the property owner was not aware of the tunnel underneath incorporated or attached to that property.
his land, constructed by the MPC. It was only much later when
ACCESSION DISCRETA: right given to the owner to everything which
is produced by that property.
ART.438 - Subdivided into the 3 types of fruits which can be possibly
HIDDEN TREASURE: what is a TREASURE? It is any hidden and 1) NATURAL FRUITS: spontaneous products of the soil,
unknown deposit of money, jewelry, or other precious objects, the as well as the young or other products of animals.
lawful owner of which does not appear (unknown owner; hindi alam o Ex. Animal manure, mushrooms not cultivated
kung sino may ari). usually after thunderstorm (some of these are
- If you see your neighbor digging a hole on a parcel of land near 2) INDUSTRIAL FRUITS: produced by lands thru human
your house and hiding a jar full of jewelry = NOT HIDDEN labor and cultivation.
TREASURE. Alam mo kung sino ang nagbaon. o Ex. Mushroom produced/cultured in a farm.
- The lawful ownership must not appear. 3) CIVIL FRUITS: rents, price of leases of lands and other
- The law enumerates money, jewelry, or other precious objects property, life annuities and other similar income.
(applying ejusdem generis rule, that should be limited to things
of similar nature). ACCESSION CONTINUA: the right given to the owner to everything
- Therefore, this does not include minerals or oil = NOT hidden which is incorporated or attached to his property either naturally or
treasure (owned by the state). artificially.
- RULE: Hidden treasure belongs to the owner of land, building,
or other property in which it is found. WITH REGARD TO IMMOVABLE PROPERTY:
o If it is found by another person (somebody other than the
owner of the land) by chance = to owner & to 1) ACCESSION INDUSTRIAL (sub-classification of Accession
finder rule (50-50). Continua): building, planting, sowing.
o If found by a trespasser, he is NOT entitled to the rule 2) ACCESSION NATURAL: alluvium, avulsion (due to risk
or any share. exposed, they have right to recover-w/in 2 years), change of
- The law requires that the finding must be by CHANCE = river bed, formation of islands.
traditional meaning ascribed to this phrase is that the finding is
not intended / totally unexpected. The finding was not looking WITH REGARD TO PERSONAL OR MOVABLE PROPERTY:
for the treasure. adjunction/conjunction, commixtion/confusion, specification.

ART. 443
Supposing that a man has been given the usufruct of a parcel of land,
by his friend. And so he stayed there on that land, and one day there is To the owner belongs all of the fruits.
an old man who gave him what appears to be an old map (treasure
buried by pirates a long time ago), And so this usufructuary, believing - Dont forget however the rule in ART.443: he who receives the
what was told to him by the old man, digs at the precise spot indicated fruits has the obligation to reimburse the expenses made by
in that map. And true enough he finds hidden treasure. Will he be another person in their production, gathering and preservation.
entitled to the hidden treasure? Will his finding be considered as a - NOTE: the law doesnt distinguish between people in good faith
finding by chance? or persons in bad faith, IT APPLIES TO EVERYONE.
- You might be in bad faith = but as long as you spent for
- If you go by the traditional view, then it would seem that he gathering, production and preservation of fruits, the owner who
does not fall in this category, because he intentionally looked is able to get back possession is obligated under ART.443 to
for the treasure. reimburse for the expenses incurred for the production,
- But I think this logic and good sense in the view advanced by gathering and preservation.
other. According to them, when the law says by chance, that - ART.443 will not apply if fruits are not yet gathered. So if the
should be interpreted to mean by STROKE of GOOD fruits are still ungathered = art.443 NOT applicable.
FORTUNE. - Consequently, if you happen to be in bad faith and not yet
- A lot of people had been engaged in the search for the gathered fruits when lawful owner possessor recovers the
Yamashita Treasure (many books had been written for the property form you Art.443 not applicable = you simply lose all
search of this treasure): many have tried but never located. So of these ungathered fruits.
even if you look for the treasure, there is no guaranty that youll o Applying the rules in: possessor, planters, sowers in BF.
find one, even if you have a map.
- So if you do find one = finding is by a stroke of GOOD o He who is in Bad faith loses everything he built, planted
FORTUNE (in that sense, a finding by chance). or sown.
- If the finder was precisely employed by the owner of the land to
look for treasure there, the finder will not be entitled to any ART.445
share under ART. 438. His remuneration will depend on the
contract for the work he would be undertaken (share/direct It tells us when these rules on Accession with respect to immovable
compensation for the work which would be undertaken). property will apply or when it would not.

- Whatever is built, planted, or sown on land of another together

ACCESSION with improvements and repairs thereon shall belong to owner
ART. 440 of land.
- If I built, planted, or sown on my own land = no question
General Rule: if you are the owner of the property by right of because I am the owner.
accession, you are also entitled, you also own everything which is - You apply these rules is something is built, planted, or sown on
the land of another.
ART. 446 o He cant however avail the option if the value of land is
considerably more than the value of the building or
Everything all works of sowing & planting presumed is made by owner planting.
and at his expense. o Considerably more: if the value of land and value of
building or planting are more or less the same. or if the
- Disputable Presumption, but a presumption just the same. difference of value is not too much, then the land owner
is not precluded of availing of that option.
ART. 447 o Difference of land should be considerable more that the
value of building, or planting.
SCENARIO: Here is a land owner and he decides to build on his o They can simply enter into lease agreement, and if they
property using materials of another person. didnt agree to the terms of lease, the court shall fix the
terms thereof, according to ART. 448.
- I have a parcel of land. I built a house there, or any other thing,
but I used your materials. DISTINGUISH PLANTER AND SOWER
- Of course, there are always TWO possibilities.


If I thought that I had the right to If I knew that you were the owner Obviously, parehong nagtatanim yan.
use those materials. If I thought I of those materials and despite
owned them. that knowledge, I still used them.
Something that will last for years If what you actually sow is
and continue producing fruits year something which will not produce
MY OBLIGATION: I should pay If I am in bad faith, then I have to after year, without having to re- fruits for a long period of time
their value but I cannot be held pay the value of the materials, plant then, then you are a planter (example: rice, you have to sow
for damages. plus damages (to penalize me for (example: mango tree, coconut rice again; BANANAS, as you
my bad faith). tree). have to cut down the trunk).

THE RIGHTS OF THE OWNER OF THE MATERIALS: remove Land owner has the right to appropriate, but he has to pay proper
materials if possible to do so without injury to the work constructed. indemnity.

- In GF Limited removal of material: if possible to remove - What is the indemnity? Supposing that the builder spent 500k
materials without injury it means that its not the case of real when he built at the time when land owner exercises his option
attachment. to appropriate, the building was already worth 5M. What is the
- If B: remove materials in any case (land owner) aside your right amount which will constitute proper indemnity?
to damages. o SC deiced: the market value at the time when the
indemnity is to be paid, although 500k was spent, since
Art.448 at the time when the property is to be paid is worth 5M,
it is 5M which is to be paid by Land owner to the
The law contemplates a land owner and somebody builds, plants or builder.
sows on his land/property: - If land owner decides to appropriate, he has to pay indemnity
and prior to the payment of the proper indemnity to the builder,
1. We have to determine whether builder, planter or sower is in the builder has the RIGHT OF RETENTION.
good faith or bad faith. - If you are the land owner, Im the builder, and we are both in
2. Determine also whether the land owner if he is in good faith or good faith. You informed me that your option is to appropriate
bad faith. the building, so the price of indemnity is 10M. Prior to your
o Where will be the land owner be in bad faith? If he knew payment 10M to me, I have the right to retain the building and
that somebody is building on his property and he to continue occupying your land right of retention given by
allowed the building to continue. Sige lang, magtayo ka law to me.
dyan. Tapos ka after a while. - PURPOSE OF RIGHT OF RETENTION: to ensure that I will be
o In good faith if he doesnt knew that somebody is paid the proper indemnity due to me.
building on his land. - Supposing that during this period of retention, while you have
not yet paid me the indemnity, naghahanap ka pa ng pera
BUILDER, PLANTER OR SOWER: would be in good faith if he is not pambayad sa akin, the building is lost (fortuitous event).
aware of any defect or flaw in his title or mode of acquisition. o Net effect: Sorry na lang ako. Builder loses the right of
retention because you are not obligated as land owner
- The builder thinks he owns that lands or he thought that she to pay for buildings or improvements which have
has legal rights to build thereon. already ceased to exist.
- If he was aware that he had no legal right to build on the - During period of retention, can the land owner demand from
property, but he build, planted the same in bad faith. the builder the payment of rent? NO, as long as the builder has
the right of retention brought about by the exercise of the land
RIGHTS WHEN BOTH THE LAND OWNER AND BUILDER ARE IN owner to appropriate, he is not compelled to pay rent.
GOOD FAITH o Why? Because if he would be required to pay rent, that
will damage/ injure/negate his security for the payment
1) Landowner: can appropriate what has been built, planted or of indemnity.
sown on his land. Of course, he has to pay proper indemnity to - Supposing that the building I constructed in good faith in your
land is producing fruits. Lets assume that portions of the
the planter, builder or sower.
2) In case of building and planting, the land owner also has option building is being leased or rented out by me to 3rd persons who
of selling the land occupied by the building or planting to the is paying me rent during period when builder has right of
builder or planter. retention.

o Who is entitled to the renters being paid by rentals? Can to exercise his option and simply ask for the removal of what in
renters be offset with indemnity due to me? good faith has been built or planted on his land.
- The options are limited to those on ART.448.

ORTIZ VS CAYANAN: involves a possessor in good faith, some

improvements for which he was entitled to indemnity. There was right Supposing that the land owner avails or elects the option of selling his
of retention because the indemnity has not been paid. During the land and the value of land is not considerably more than that of the
period when he had the right of retention, a detour was constructed building. The builder, however, is NOT ABLE TO PAY (insolvent) for the
thru the property. One highway was being constructed / repaired by the land.
government. In the meantime, vehicles had to take the detour thru
property and tolls were collected (which was under right of retention). - SC HELD: If this is the case, the LO can ask for the removal of
the building.
- Can the tolls collected by the possessor who had the right of - If having opted to sell his land, not considerably more than
retention (can the tolls he collected compensate with the value of building, and the builder not able to pay then that is a
indemnity) that is due to him? YES. situation when the land owner can actually ask for the removal
- The right of retention is not merely a security, but rather a way of property or building.
for the extinguishment of the obligation to pay indemnity.


PECSON: here, the SC said NO. If the fruits are collected by builder in
good faith during his period of exercising his right of retention, this 1) Simply enter into a lease.
fruits/rentals cant be compensated with the indemnity due him 2) Land owner can ask for removal
because he is the one entitled as a consequence of his right of 3) Land owner can ask for the sale of both the land and the
retention to the possession and tenancy of the property. building, the proceeds will first applied to the value of land. The
rest or the excess will be delivered to the owner of the house or
- He is also entitled to these fruits, so that there could be no building.
compensation between the fruits and the indemnity for the
simple reason that they are both due to him. They are both
belong to him. PROBLEM: prior to the time that the land owner exercises his right of
- Under the law in possession, the moment the builder becomes option of either appropriation or sale (prior to his moment of decision),
aware that he is not really the owner of the property, that there the builder has been of course occupying the land of the land owner,
is a defect in the mode or title of acquisition, then strictly Can he be required to pay rent for his occupancy during that period
speaking, he is no longer in good faith and from that moment prior to the exercise by the land owner of his option? YES. He should
on, under the law on possession, he is not entitled to the fruits. be

- The moment the land owner exercises his option to

appropriate, there arises the right of retention on the part of the
BETTER VIEW (PERSONAL): he will still be entitled, as long as he builder.
built in good faith. He should not be deprived of rights pertaining to - From that moment, he cant be compelled to pay rent.
builder in good faith, one which is the right of retention even if - If LO opts instead of appropriation his option is SALE of the
considerably, at some point, he is aware theres a defect or flaw in the land to the builder, can rent be demanded for the meantime?
tile of his acquisition. YES.
o Rent will have to be paid until such time when the land is
- He continues it; right of retention necessarily implies tenancy in fact acquired by the builder.
and continued possession. As such he is still entitled still to the o If builder acquires the land, the builder becomes the
fruits and there is no compensation between the fruits and the owner already and he simply doesnt have to pay rent
amount of indemnity due to him. anymore.

These rules in accession on immovable property would not apply to a

THE OPTION IS GIVEN TO LAND OWNER, NOT TO THE BUILDER: situation where it is the land owner himself who builds or plants on his
it is the land owner who decides whether he appropriates what has property, because under the law, on the land of another.
been built or planted, or whether he will ask the builder or planter to
buy the land. - Now, having said that, it follows therefore that if a co-owner of
the property, builds, or plants on the property under co-
- Builder cant compel the land owner to simply sell the land ownership, these rules would not apply because the co-owner
therein or at least the portion thereof to buy his building. is the owner of ideal aliquot (fractional) share of the whole.
- He cant do that because the OPTION is NOT given to the - Under the rule on co-ownership, the co-owner has the right to
builder, but to the landowner by law. use the property under co-ownership as long as he doesnt
prevent the co-owners from similarly using it.
- If something is built by a co-owner, these rules are not
DUPRA VS DUMLAO: why is the option given by the law to the available.
landowner? Because the right of the landowner is all there. It is - HOWEVER, if co-ownership has already been terminated by a
because he is the landowner. partition of the property, and after the partition, it is discovered
that one of the co-owner (previous co-ownership) has built on a
part of the property which was later on adjudicated to another
co-owner, then the rules under ART.448 should apply. Pwede.
- Co-owner who had earlier built on the property under co-
- Can LO simply refuse either of the options under ART. 448?
ownership but a portion of whose building is discovered to
encroach upon the part adjudicated in the partition to the other
- Sabi niya, ayaw ko nyan building mo.Pangit yang bahay mo: no co-owner will have the rights of a builder in good faith.
appropriation, not to sell the land. In short, he simply tells the
o We are the two co-owners, and I built a building on that
builder, lumayas ka, tanggalin mo building mo dyan dahil di mo piece of land. Later on, we agree to partition the
lupa yan. Can the land owner do that? NO. He cant just refuse

property. After partition, my building occupies some building on the land of another. A lot will depend on whether the
parts allotted to you under our agreement, then ART. builder or owner are in good faith or bad faith, assuming they
448 will be applied. I will be considered as builder in are both in good faith and material owner are in good faith.
Good Faith w/ the same rights under ART.448. o Rights (owner of materials): can recover the value of
materials from the builder who used it but the land
The claim of good faith may be made by a successor in interest of the owner can be held subsidiariliy liable for the value of
original builder. materials, in case the builder is unable to pay the owner
of materials their value.
- Example: a certain land with a building standing thereon was o If however, builder is in bad faith, and consequently the
purchased by a buyer. Later on, upon the survey of the land, it land owner demands removal or demolition of building,
was discovered that a portion of a building encroached upon remember that the land owner has no subsidiary
the adjacent property. liability. REASON: in accession, he who benefits from
o SC held: YES, the buyer can invoke good faith. Art.448 the accession must pay for it (underlying principle).
can apply. o Kung sino ang nakinabang sa accession, dpaat
- Example: There was a couple who bought a land from a magbayad.
subdivision. When the couple decided to construct a house, o If land owner decides to appropriate the building- there
and they asked the representative of the subdivision owner. is subsidiary liability on his part in case the builder is
They constructed a house, and it was discovered that the lot insolvent.
was not theirs (nagkamali ng turo ng lote sa kanila). Can they o If land owner decides to ask for removal or destruction
invoke the rights of builders in good faith? YES. Even if the of the building. He doesnt (LO) benefit from the
property involved is registered property. accession, thats why theres no subsidiary liability on
o Both properties have titles: can you still invoke builder the part of the land owner.
in good faith if property is covered with Torrens Title? o If property is sold by the land owner pending payment
YES. Because if you are just an ordinary person, you of indemnity of the builder? IT DEPENDS.
are not expected, unless you happen to be an expert in a. If in the contract of sale between the LO and 3 rd
surveying, to know the precise boundaries. Even if your person, the land owner was already paid not
property is covered by Torrens title. (UNLESS youre a just the value of the land but the value of the
SURVEYOR- an expert in that field). Anong malay building as well, then the land owner must pay
natin. the value of building (the proper indemnity to
o Though now we have GPS. But the rule still applies (in the builder).
good faith). b. If LO was not paid the value of the building,
- The case is different when, for example, I built on a land in then he doesnt benefit to the building. It would
Manila, when the owner scolded me, I just said sorry, thought I be the buyer who will pay because the buyer
have no title whatever. My property is in QC. I dont have was the one benefited.
property in Manila. Can I claim Good Faith? NO. Mere
assertion that I thought I have legal rights to build on the NOTE: he who benefits from the accession must be the one who will
property is obviously a vagrant assertion because it has NO pay for it.

Supposing that the builder is in bad faith, he loses everything and ART.457
becomes liable for damages.
ALLUVION: if you are the owner of a land adjoining the bank of a river,
- Land owner can demand that you buy his land, regardless of and due to the natural action of the water over a period of time,
the value, NO restriction needed (that it should be considerably deposits of river silt are left there by the water such that the area of
more, etc). your land gradually increased year after year, you are the owner of that
o If the building built was worth P1M and the land is worth additional area.
P5M, pwede ka.
- You can be compelled to buy his land. Pasaway ka. Kasalanan - Our ownership is automatic, as long as everything happens
mo. natural. You did not construct a basin, or something. As long as
- The land owner can demand the right of removal. Lumayas ka there is no human intervention.
sa lupa ko. - The additional area brought about by alluvion automatically
- You have NO RIGHT whatsoever, EXCEPT recovery of belongs to the land owner of that land by the banks of the river.
necessary expenses for the preservation of the property. - It (additional area) is not however automatically registered or
o WHY? The land owner himself would have also incurred covered, or protected by the Torrens title of the land owner. He
necessary expenses even if Builder is the one who is in has to register it on his name.
possession of property. - And if prior to his registration of that additional area, a third
o Fairness and basic justice. person succeeds in occupying that area, claiming at as his
own, satisfies the requisite for acquisitive prescription, tapos.
ALL FRUITS BELONG TO THE PROPERTY OF THE OWNER. That third person would have acquired ownership of that area.
- The increase in the area must be exclusively due to nature.
There must be absolutely no human intervention. Otherwise,
Old case of Giving Bonus: certain land owner was asked by that is not alluvion.
certain land company to mortgage their property to secure for the loan. - Insofar as areas bordering lakes are concerned, like Laguna de
And for the risk you are going to take, we will give you certain bonuses. bay. It is not a bay, it is a lake. Lakes are large bodies of water,
Pumayag (nag-mortgage ka). Binigyan ng bonuses. Are these which usually have a connection to a river.
bonuses, FRUITS? NO, because they are not produced by the land. o If there are additional areas brought about by the action
Not even civil fruits. of the water, or whatever, to whom will they belong?
They would belong to the owners of the adjacent lands,
applying the Spanish Law of waters.
- If you own a parcel of land, lets say in La Union, and through
Supposing that the land owner and the builder are in bad faith, they are the action of the sea, your land gradually increased in area sa
both considered to have acted in GF. So apply ART.448. may tabing dagat. Who will own the additional area? That
belongs to the State.
- Supposing that the builder used the materials of a 3rd person in o Alluvion is applicable to RIVERS or LAKES. It does not
include the shores of the seas.
USUFRUCT: basic idea property is given to a person, is given the - If there are any ACCESSIONS:
right to use and enjoy the property with the basic obligation of
preserving its form and substance.
For example, the property under usufruct happens to be a parcel of
- You try to remember at least a few of the distinctions between land. Its located along the banks of a river and in the course of time,
USUFRUCT and LEASE. the area increased because of ALLUVION.

- The usufructuary has the right to make use of the additional

- That is part of his right under ART. 571.

Always a REAL RIGHT. Not always a real right. It

becomes a REAL RIGHT only if - The usufructuary may decide to personally use the things,
the period is more than one year personally enjoy it, or he may allow another person to enjoy the
or if it is registered. thing under usufruct.
o All contracts entered into by the usufructuary with third
persons are CO-TERMINOUS with the usufruct, with
Can be only created by a person It can be created by somebody the exception of LEASE OF RURAL LANDS, which
who owns the property. who is not actually the owner of shall be deemed to continue up to the end of the
the property (the lessee may agricultural year.
actually sublease the property). o PURPOSE: to allow the lessee who may be cultivating
the land to continue with the production and gathering.

MATTER OF ITS CREATION: Generally, the only possible Usufruct imposes upon the usufructuary of preserving the form and
There are various ways of source of lease is the substance of the thing.
creating a usufruct: CONTRACT Between the parties.
EXCEPT in the case of IMPLIED - BUT the law allows the grant of a usufruct over the entire
1. By the law itself. NEW LEASE, or in the case of patrimony of a person.
2. By the will of a testator. FORCE LEASE (ART. 448). o And when that happens, chances are in that patrimony,
there will be some properties which by their very nature
- If the value of the land is will deteriorate or will be impaired due to ordinary wear
considerably more, then the and tear.
value of the building the
landowner cannot compel or
ask the builder to buy. They Supposing that what was given by way of usufruct is property which
must just enter into a gradually deteriorated through ordinary use, ordinary wear and tear,
FORCED LEASE. like a car.

- If the usufruct is for 5 years, after 5 years, iba na yung kotseng

RIGHTS OF A USUFRUCTUARY: yan. Ordinary use of the car will result in the ordinary wear and
1) You can use the property. - Can the usufructuary use the property? YES. Pwede pa din.
2) You are entitled to all of the fruits, whether natural industrial or - What would be his obligation? He is simply obligated to return
civil fruits. the thing IN THE CONDITION IN WHICH IT MAY BE at the
3) Supposing there are hidden treasures there, insofar as that is time of termination of the usufruct.
concerned, the law says the usufructuary is considered a - Of course, if the thing suffered damage or injury due to his
STRANGER. fraud or negligence, he is obligated to indemnify.
o If somebody finds the hidden treasure, then the o If it is ordinary wear and tear, NO OBLIGATION. He
usufructuary DOES not get any share of t. simply has to return the thing in the condition which it
o If it is the usufructuary himself who finds the hidden may be found at the termination of the usufruct.
treasure, then he may be entitled to of the hidden
treasure and the other half will go to the naked owner of
the property.
Can there be usufruct on CONSUMABLE THINGS?
Remember the provisions of the law regarding GROWING or
PENDING FRUITS: - Those which cannot be used in the manner appropriate to their
nature without them being consumed or used up.
- Those fruits which are growing or pending at the - Can there be a usufruct on MONEY? Or RICE? YES, BUT
commencement of the usufruct, will belong to the these are what are sometimes called ABNORMAL usufructs on
USUFRUCTUARY. consumables, or quasi-usufructs.
o Does he have to refund to the naked owner the expenses - BUT I think the BETTER VIEW is as pointed out by some
incurred so far? THERE IS NO NEED TO REFUND commentators: if the object of a usufruct is consumable, in
THE EXPENSES. effect, what you have is a SIMPLE LOAN.
- Those growing or pending fruits at the time of the END or o So what will be the obligation of the usufructuary? So he
termination of the usufruct, will of course belong to the naked uses and consumes, then he simply has the right to
owner. return the or pay their appraised value at the time of
o While the law says that they will belong to the naked termination of the usufruct, IF they were appraised.
owner, the naked owner has to REIMBURSE the o If they were not appraised, he will have the obligation of
usufructuary the expenses incurred by the latter. returning the same quantity and quality. OR pay their
o Or cultivation, seeds and other similar expenses. current value.
- If the property under usufruct is TENANTABLE (pwedeng irent That is one of the advantages of appraisal. At
out or ilease sa tenant), it is the usufructuary, NOT the naked least you only have to return the appraised
owner, who has the right to determine who will be the tenant of value if they were appraised.
the property.

Usufruct on FRUIT-BEARING TREES: the usufructuary cannot cut sale of the movables be invested in safe
down the trees, but he is allowed to use the trees which have been securities.
uprooted by accident (dead trunks) he can use them but he has the The usufructuary, of course, will be
obligation to replace. entitled to the interest on these SALES
of the movables, and the other proceeds
of the property under administration.
- He has the obligation to replace with new plants.
- EXAMPLE: santol, manga or star apple.
CAUCION JURATORIA: sometimes, it may happen that the
If there is something EXTRAORDINARY which happens, and the trees usufructuary is given the usufruct of certain properties (house,
have been uprooted or disappeared in such extraordinary number, that furniture, equipment and tools), per walang wala. He does not have
it would be impossible or too burdensome to replace them, the money to get the necessary security.
usufructuary may simply demand from the naked owner to clear the
land so that he can continue using the land, OR if he wants, he can - In that case, he may petition the court to allow him to make use
use them, but if he does, he will have the obligation to replace them of the house so that he and his family can live there, that he be
with NEW trees, pursuant to ART. 575. allowed to use the furniture, that the tools and implements of a
trade be given to him so he can use it. So that he can earn
Usufruct over WOOD LAND: the usufructuary is allowed to make as money.
ordinary felling and cutting as the owner was in the habit of doing, OR - That may be granted by the Court upon the promise of the
in accordance with the customs of the place. usufructuary UNDER OATH (that he needs the property, that
he will take care of the property) as required by law.
- REMEMBER: coconut land is not woodland.
o So hindi pwede magputol ng puno ng niyog ang
A usufructuary, of course, is obliged to take care of the thing WITH
Supposing the usufructuary introduces USEFUL IMPROVEMENTS, or - Supposing he fails in that obligation: he abuses the thing, he
improvements for MERE PLEASURE / ornamental improvements on misuses the things under usufruct. Will that cost the termination
the property over usufruct. Can he do it? of the usufruct?
o NO.
- YES, as long as he does not alter the form or substance of the o REMEDY OF THE OWNER: the owner may simply ask
thing under usufruct. that administration be given to him, pursuant to the
- Can he demand reimbursement for the expenses he incurred? provisions of ART. 610.
NO. He cannot claim reimbursement for the expenses he
incurred for useful or ornamental improvements. If the usufruct is constituted on a HERD of livestock, the law says he is
o BUT, he can set off the value of these improvements obligated to replace with the young thereof those which are lost due to
against any possible liability for damages which he may natural causes or due to the rapacity of beasts of prey
have inured. (mandaranmbong? Mga hayop na mabagsik).

Supposing that the usufruct is constituted on STERILE animals (mga

OBLIGATIONS OF THE USUFRUCTUARY: hayop na baog; di pwedeng manganak).
- At the START of the usufructuary, his TWO BASIC - What is the obligation of the usufructuary?
OBLIGATIONS: o Considered as if the usufruct was constituted on
1) He must submit an inventory of the things under fungibles.
usufruct. o In other words, the usufructuary has the obligation to
o WHEN NOT REQUIRED: when no one will be pay their appraised value if they were appraised, or if
injured, provided the naked owner consents to not, he has the obligation to replace them with the
the non-submission of the inventory, in case the same quantity and quality.
naked owner waives the requirement for an o OR pay their current value at the time of the termination
inventory, or if here is such a provision in a will of the usufruct.
where the usufruct was created by will, or in the - A good example of a sterile animal would be a MULE (an
contract creating the usufruct. animal to carry things or cargo yung mga panahon ng cowbow
2) He must also give a sufficient security to guarantee at indian).
his compliance with his obligations as a usufructuary. o You produce a mule by crossbreeding a male donkey
REQUIRED: when no one will be injured, when o That is sterile.
there is express waiver from the naked owner, if
the usufructuary happens to be the donor of the Who is responsible for REPAIRS?
thing (sakanya nangyari, binigay niya, but he
reserves the usufruct of the property). - Distinguish between ORDINARY and EXTRAORDINARY
o In case of caucion juratoria, the promise under REPAIRS.
oath. If there is a caucion juratoria, the
usufructuary is also not required to furnish a
o What will be the LEGAL CONSEQUENCE if there
is FAILURE to provide security? We have the
provisions of ART. 586. The responsibility of the All other repairs.
In that case, the naked owner may usufructuary. He is obliged to
demand that the immovable be placed
under administration, that the movables make these repairs. EXAMPLE: due to wear and tear,
be sold. That the public bonds, but not indispensable for the
instruments or credit be converted into When considered as one: if it is preservation of the thing.
registered securities or certificates, and due to wear and tear AND it is
that the cash and the proceeds of the indispensable for the preservation Shall be, according to the law, at

of the thing. the expense of the naked owner.
But the naked owner, take note, If A gives B a usufruct over a parcel of land and during the existence of
REQUISITES: is NOT obliged to make the the usufruct, As rights are declared by final judgment of a court to be
extraordinary repairs. null and void. A is not really the owner.
1) Must be due to wear and
tear. - Then, that is an example of a situation where the usufruct will
2) Must be indispensable for be terminated by the termination of the rights of the person
the preservation of the thing. constituting the usufruct.

Supposing the naked owners makes the extraordinary repairs. He 5) RENUNCIATION on the part of the usufructuary.
spends for them. What right would he have? o Does a renunciation require the consent of the naked
owner? The better view is that NO. He does not.
- Under the law, he would have the right to demand from the
usufructuary INTEREST (legal interest) on the amount he spent If the loss is not total but PARTIAL, needless to state, the usufruct
for those repairs for the duration of the usufruct. CONTINUES on the part of the thing has not been lost.
- He can demand legal interest.
- Supposing the repair is extraordinary indispensable for - In the case of MULTIPLE USUFRUCTS, it is only upon the
preservation but not caused by ordinary wear and tear. death of the LAST usufructuary that the usufruct is terminated.
o EXAMPLE: the property under the usufruct is a house.
There was strong typhoon and the roof was blown Supposing that the usufruct is granted for the number of years that
away. would elapse before a person would reach a certain age:
o That is not due to ordinary wear and tear but that repair is
indispensable for the preservation of the property.
o Let us further assume that the naked owner does not Let us say A gave B a usufruct today until X reaches the age of 40.
make that extraordinary repair. And X is only 30 years old today.

In that case, since it is indispensable for the
preservation of the thing, the usufructuary may
make extraordinary repair. - So the usufruct is supposed to last for how long? 10 years.

What would be his rights, if the usufructuary, - Supposing X dies after 5 years. Will the usufruct terminate?
under those circumstances, makes the extra o NO. It continues until the year when he is supposed to
ordinary repair, then he may DEMAND from the reach 40, after ten years.
naked owner at termination of the usufruct the o UNLESS the usufruct was granted only in consideration
increase in value which the thing may have of the existence of X, in which case, it would terminate
acquired as a consequence of the repair. upon the death of X.
ANNUAL CHARGES AND TAXES which are considered lien on the
fruits charged to the usufructuary. ART. 607: take note.
- REAL PROPERTY TAX on the land under usufruct, that should - TWO SITUATIONS contemplated here:
be paid by the NAKED OWNER, not by the usufructuary.
1) Usufruct is constituted on both the land and the
If the usufruct is constituted on the whole patrimony of a person, and o The building is destroyed. Whats the
the naked owner happens to have unpaid debts, is there an obligation consequence?
on the part of the usufructuary to attend those debts?
The usufruct over the land continues.
o Usufructuary has the right to continue using the
1) If there is no order from the owner to pay the debts, there is NO land he has the right to make use of the
OBLIGATION on the part f the usufructuary to pay those debts. materials.
o EXCEPT if the usufruct was constituted in fraud of o If the naked owner wants to rebuild, his decision
creditors. is subject to the concurrence/consent of the
2) If there is an order from the naked owner for the usufructuary to usufructuary because his usufruct is over both
pay the naked owners debt, it is understood that he is land and the building.
OBLIGATED to pay the debts EXISTING at the time the 2) If the usufruct is constituted on the building ONLY, not
usufruct was constituted. expressly covering the land, and the building is
o Only pre-existing debts must be paid. destroyed, then the usufruct on the building ends.
o Applying the provisions of ARTs. 758 and 759. o But the usufructuary can still make use of the
HOW USUFRUCT IS DISTINGUISHED: take note of the provisions of o The usufructuary is also entitled to the continuous
ART. 603. use of the land because although the land was
not express included in the usufruct the
1) The DEATH of the usufructuary generally terminates the usufruct was given only over the building of
usufruct. course, a building cannot be floating on thin air.

o What about the death of the naked owner? It DOES NOT So when he was granted the usufruct of
the land, necessarily, kasama din dun
terminate the usufruct. ung pinagkakatayuan nun.

2) MERGER would also result in termination of the usufruct. It necessarily included his right to make
o If there is merger of both the usufruct and the use of the land on which the building
ownership of the same property in the same person, stands.
then the usufruct is necessarily terminated. o If the naked owner rebuilds, he has the obligation
3) TOTAL LOSS of the thing. to pay the usufructuary interest, not only on the
4) TERMIANTION to the right of the person constituting the value of the materials, but also on the value of
usufruct. the land.


Why interest, including land? Because obligation of allowing something doing something which otherwise
even if the usufruct expressly covered
only the building, it necessarily included to be done, or of doing it himself. he could lawfully do, were it not
the use of the land, for building cannot for the existence of the easement.

If the property under usufruct has been EXPROPRIATED, what will be CONTINUOUS EASEMENT: an easement of drainage, abatement of a
the legal consequence? dam, light and view.

- The naked owner has the OBLIGATION to either: - They continuous to be in use even if there is nobody making
1) Replace it with another property of the same kind and use of it. Its there so its continuous.
value, or
2) Depending upon the naked owner, he can simply pay DISCONTINUOUS EASEMENT: right of way, for it is impossible for a
the usufructuary interest on the indemnity paid to him. man to continuously walk to and fro through the right of way, 24 hours
a day/ 7 days a week.

LOCSIN VS. VALENZUELA: this was precisely the ruling of the - Its use depends upon human intervention upon the right of
Supreme Court in this case. man.

- Where the property under the usufruct was taken under PD 27 APPARENT EASEMENT: if the right of way is a PERMANENT right of
(given to the tenant). way, there is permanent road there, that is apparent.

- Abatement of a dam: you can see it.

EASEMENTS: important points to remember: - An easement of aqueduct by express legal provision is always
considered continuous and apparent.
- DISTINCTIONS between EASEMENT and LEASE: o It can be acquired by prescription.


EASEMENT LEASE TOLLENDI, if there is such an easement, you are not supposed to
build a certain height.

Always a real right. Real right only when more than - If you are the servient owner and there are people passing by
one year, registered. young property. There is nothing that will indicate that the
reason why you are not building beyond a certain point is
because there is an easement.
You can only have it with respect Including PERSONAL / movable o So it is non-apparent.
to IMMOVABLE / real property. property.
POSITIVE EASEMENT: an opening made on a party wall, an
easement of light and view through a party wall.

- VARIOUS TYPES/CLASSIFICATIONS of EASEMENTS: - Because it imposes upon the owner of the servient estate the
obligation of allowing something to be done on the servient
estate itself.
NEGATIVE EASEMENT: the easement of light and view if you make
the opening on your own wall.
- You wall facing the property of another, you make an opening,
as long as you comply with the requirements (notarial
If its use does NOT depend upon If its use depends upon the acts prohibition).
the acts of man. of man. If it is only used in o REASON: the adjacent owner, the owner of the servient
intervals. estate will be prohibited from doing something which
lawfully, he could do, were it not for the existence of the

What is that? Block your light and view.
An easement is INSEPARABLE from the estate to which it either
actively or passively belongs.
- You cannot alienate an easement separately from the estate to
which it belongs, either actively or passively.
- It is inseparable from that estate.
If there is an external sign which If there is no visible indication of
continually keeps it in view and its existence. reveals its use and
REMEMBER: only continuous and apparent easements may be
acquired by prescription.
- Discontinuous easements, or non-apparent ones can only be
acquired by title, not by prescription.
-That is the reason why an easement of right of way cannot be
When it imposes upon the owner If it prohibits and prevents the acquired by prescription, for it is DISCONTINUOUS.
of the servient estate the owner of the servient estate from

o It may sometimes be apparent, and non-apparent, but it
is ALWAYS discontinuous. - SC: if there are new sugar planters who would also want their
- Even a RAILROAD EASEMENT is still considered as sugarcane milled in that mill, then the sugar mill can also use
DISCONTINUOUS. the same right of way to transport the sugar cane.
- According to most civilists, including the members of the Code
YEARS. - Under the present article, the owner of the dominant estate
CANNOT use the easement EXCEPT for the benefit of the
- When does the period start to run? movables originally contemplated.
a. POSITIVE EASEMENTS: on the day in which the o Neither can he exercise the easement in any other
owner of the dominant estate started to exercise it upon manner than that previously established.
the servient estate. - Precisely to correct that former ruling.
o So if the opening is made on a party wall, thats a - The milling company cannot use the same right of way to
POSITIVE EASEMENT. transport the sugar cane of other additional planters who were
o From the day the opening is made, the ten-year not contemplated when the easement was earlier established.
period starts to run.
b. NEGATIVE EASEMENTS: the ten year period will start
to run only from the date when there is a NOTARIAL
o If A makes an opening in your wall facing Bs AND SERVIENT ESTATE
property, A has to serve B with the notarial
prohibition, telling him o, do not block my light - Expenses on the maintenance of the easement: borne by the
and view. Then the ten-year period will start to OWNER of the DOMINANT estate.
run. o The owner of the servient estate, if it becomes apparent
o Only then: upon service of the notarial prohibition. later on that the location or manner of use of the
easement is turning out to be very, very inconvenient to
the owner of the dominant estate, may PROPOSE
ART. 624: when there is an apparent sign of an easement between two change in the manner or location of the easement.
estates, established and maintained by the owner of both, and these o If there are several dominant estates, they will have to
two estates are disposed of, either or both of them are alienated in contribute proportionately to the maintenance of the
favor of others, and at the time of the alienation, nothing to the contrary easement.
is provided for in the contract or agreement, nor are these apparent
signs of an easement removed, then upon the alienation of either or ART. 631: MODES OF EXTINGUISHING EASEMENT:
both of the two estates, these apparent signs will be considered as
TITLE. 1) MERGER: of the ownership of the dominant and servient
- This would enable the easement to continue after the o That will result in the termination of the easement.
alienation. o The merger must be a permanent one, not simply a
- EXAMPLE: temporary merger.
o If only TEMPORARY, like when the owner of the
dominant estate sells his estate under pacto de retro to
GARGANTOS VS. TAN YANON: lot 1 and lot 2, both owned by X. On the owner of the servient estate, the easement isnt
lot 1, there is a house and there are big windows facing lot 2. Lot 1 was extinguished. It is merely SUSPENDED. Upon the
sold to A and lot 2 was sold to B. at the time of the sale, nothing was exercise of the right of repurchase, it will obviously be
said about removal or any easements, the big windows were not close, revived.
sige lang. 2) RENUNCIATION by the owner of the dominant estate.
- One year later, B is trying to build on his property. A told him I 4) If either or both of the estates fall into such condition that the
have an easement of light and view. If you want to build on easement could not be used.
your property, you have to observe 3 meters. B replied, wait, o But the easement will revive if the conditions improved,
where is your notarial prohibition? How could you possibly unless in the meantime, prescription has already set it.
acquired an easement of light and view, when you never
served any notarial prohibition in me. LEGAL EASEMENTS: easement relating to WATERS.
- Who would be correct? A, applying the provisions of ART. 624.
o The existence of those big windows is an apparent sign - Lower estates are obliged to receive the water, including the
of an easement in favor of this property. solid and other materials which naturally flow from the higher
o Since that apparent sign was not removed at the time estate.
when these properties were alienated by the former o As long as everything happens naturally; no human
owner, they will now be considered as TITLE and the intervention when it rains, then there were rocks and
easement will be allowed to continue. waters which flows to the lower estate, there is no
obligation to indemnify.
- If there is human intervention, HOWEVER, like when the owner
of the higher estate drew water from a river, uses the easement
ART. 626: new provision. of aqueduct and transport the water to his estates, uses it for
some business or industry, then the water falls to the lower
- According to most commentators, including the members of the estate there would be an obligation to pay the indemnity.
Code Commission, is intended precisely to counteract a
- Under a previous ruling of the SC: STREAMS: these had been modified by ART. 51 and 52 of the Water

VALDERAMA VS. NORTH NEGROS CENTRAL: there was a sugar - Under ART. 51, the width of the area covered by the easement
mill. It had an easement of right of way over intervening estate so that for the benefit of recreation (this is included), navigation
it could transport the sugarcane of sugar planters located farther on.

floatage, fishing and salvage, the area depends upon the If the owner of property sells it, and after the sale he realizes that he is
location. now surrounded by the property he sold, he does not have any outlet
1) URBAN AREA: width of the easement is only THREE to public highway, can he demand a right of way?
METERS. - YES. Does he have to pay indemnity? YES.
2) AGRICULTURAL AREAS: the width is much wider, - BUT if he donated it, he can simply demand the right of way.
TWENTY METERS. He does not have to pay any indemnity.
3) FOREST AREAS: the width is actually FORTY o Reason: he donated it already. When he does not have
METERS. an outlet, he should be given a free right of way.
EASEMENT OF RIGHT OF WAY: you can demand an easement of
right of way if your estate has no adequate outlet to a public street or
highway. A sold a property to B. The suddenly, B realized that such property was
surrounded by other properties belonging to A there is no outlet.
- REASON: it is surrounded by other immovable belonging to Can B demand a right of way?
other persons.
- The outlet of a public highway must be an ADEQUATE outlet. - YES. Indemnity? NO.
- Supposing it is NOT a sale. A donated property B. After the
donation, B realized that such property was surrounded by the
ENCARNACION VS. CA: SC held in this case that where the outlet to other properties belonging to A. can B demand a right of way?
a public highway is through a riverbed, a dried riverbed not o YES. Indemnity? YES, because this is a donation.
considered an adequate outlet. o You have to apply different rules to donors and sellers of
- REASON: during the rainy season, di ka makadaan dun.
Maybe during the dry season and el nino, that riverbed is dry.
But when it rains, then the outlet disappears. LEGAL CONSEQUENCE if after a right of way has been demanded
and constituted, the government demands another public road in such
a way that the servient estate now has ANOTHER direct access to a
- As long as there is an outlet, however, even if it is a very public street or road:
inconvenient outlet, like a bakobakung daan at pag maulan
maputik, and it is considered an ordeal to traverse the outlet - Is the easement over the servient estate, which was earlier
still considered an ADEQUATE outlet. created when the new road was not yet in existence, be
o You cannot demand a right of way through another automatically terminated?
estate. o NO, it will not be automatically terminated.
o Mere inconvenience does not justify the demand for a o It will only be terminated if DESIRED by the owner of the
right of way, as long as there is already an outlet. servient

The option is given to him.

If he desired to have that easement of right of
INDEMNITY TO BE PAID TO THE OWNER OF THE SERVIENT way be terminated, he will have to RETURN the
ESTATE: earlier indemnity which he had received (NO

- If PERMANENT right of way: the indemnity to be paid will have Maybe why that is one reason why the owner of
the servient estate may not want to terminate
to be the value of the land occupied by the passage + any the easement.
consequential damages.
Its not automatically terminated as it depends on the
will of the servient estate.
- If NOT a PERMAMENT road, which simply involves walking to
the property of another: indemnity will be whatever damage will o The owner of the dominate estate cannot demand the
termination of the easement.
be caused to the servient estate as the consequence of the
That option is only granted to the owner of the servient
passage. estate (ART. 655).

THROUGH THE SERVIENT ESTATE: dividing wall between two estates.

- TWO FACTORS TO CONSIDER: - PRESUMPTION: that is a party wall.

a. DISTANCE - In an easement of party wall, which is the dominant estate,
b. AMOUNT OF DAMAGE OR PREJUDICE to the which is the servient estate?
servient estate. o The servient estate is the party wall itself.
- Between the two, the one which should be given preference is o The dominant estates are the two adjoining owners.
the factor of the amount of damage. - ANOTHER PRESUMPTION: whenever there is a dividing wall,
that wall is party wall UNLESS there are external signs which
would indicate that it is not actually a party wall.
In one case, a right of way had to be established through the servient o Examples: if the wall is standing exclusively, entirely on
estate. If a straight path or road will be taken to the public highway, that the lot of one of the parties not a party wall.
will involve the demolition of a sari sari store, or a building. If the right o If it is straight on one sight and plumbed(?) on another
of way will take a longer route however, it will involve the cutting down to the sight which is plumbed.
of an avocado tree. - Take note of the exterior signs contrary to the existence of a
party wall under ART. 660.
- SC: there is no other choice. We will choose the latter as it is - Who is responsible for the maintenance?
least prejudicial to cut down the tree than to demolish the o Both adjoining owners. They must contribute
building if the line will be direct. proportionately to its maintenance.
- So between distance and mount of damage, it is the amount of o Supposing one of the adjoining owners wants to
damage which is given preferential consideration in increase the height or width of the party wall, can he do
determining where the right of way will pass. it?


YES. But he would have to shoulder theEASEMENT OF LATERAL AND SUBJACENT SUPPORT: if it is on
additional expenses a taller or thicker wall and the same plane (level), it is called easement of LATERAL support.
he has to provide the addition land needed for a
thicker wall. - If one easement is BELOW, that would involve SUBJACENT
o If one of the adjacent owners wants to exempt himself support.
from contributing to the expenses of maintenance, the
law allows him to renounce his part of interest in the VOLUNTARY EASEMENTS: read the provisions.
party wall, EXCEPT when the party wall supports his
building. - If the property is under co-ownership, to impose an easement
on that property, ALL CO-OWNERS must give their consent.
EASEMENT OF LIGHT AND VIEW: - With respect to perpetual voluntary easements, if naked
ownership is vested in one person while the usufruct or
- If you make an opening on a party wall, that is a POSITIVE beneficial ownership is vested in another, you cannot impose a
EASEMENT. perpetual voluntary easement without the consent of BOTH
o Prescription starts to run from the time the opening was OWNERS.
o Your neighbor has the right to close the opening. You NUISANCE: basic concept of nuisance:
can open it again. It will be game of close-open. If he
let it open for ten years, he can no longer ask for the - It is anything, any act, condition, business, establishment
closure. You have already acquired the easement of which:
right and view through that party wall through 1) Injures or threatens the health or safety of others.
prescription. 2) A noise or offends the senses.
- If you make an opening on your own wall, in the case of 3) Shocks, defies or disregards decency or morality.
DIRECT views, you have to observe a distance of TWO 4) Obstructs or interferes with the free passage of any
METERS. street or body of water.
o Oblique view: distance is less 60 cm. 5) Hinders or impairs the use of property.
- If you do not observe these distances (ART. 670), you cannot
open regular windows or openings on your own wall. NOISE: can be a nuisance.
o If you do, your neighbor can ask for the closure of your
openings. - A thing which offends or annoys the senses is categorically a
o What if you die from the low temperature and it will be nuisance.
dark, under the provisions of ART. 669, the law allows - A HUGE BILLBOARD which portrays a naked woman in all her
you to make REGULATED openings. glory, maybe something which would qualify as a nuisance:
It must be limited in size: 30 cm2 the height something which defies, disregards decency or morality.
and length are 30 cm each. o A HOUSE OF PROSTITUTION would obvious fall
Different from 30 sq. cm. under that category.
But you cannot use it to steal the clothes na - When it comes to NOISE, as a nuisance, obviously, noise is
nakasampay of your neighbor for it can only be something which will IRRITATE most people.
placed at the height of the ceiling joist (beams o In determining whether a particular noise would justify
connecting the posts of buildings). the award of damages to a property owner who
o If there are several floors of a building, each floor has happens to reside in the vicinity, the test is NOT
ceiling joist so at each floor, you can make such whether that kind of noise will irritate a person of rather
regulated openings. sensitive nature.
o The law also requires that there should be IRON We have varying levels of tolerance in so far as
GRATINGS (rehas) embedded in the wall AND wire noise is concerned. Some people are quite
screens. sensitive so that they get very easily irritated by
So you cannot use it for stealing. any and all kinds of noise.
That is only to give you a little light and SC: we have to pay for certain things if we have
ventilation (to avoid heat stroke). to live in communities, especially urban ones. If
- If your neighbor already has acquired an easement of light and you reside in Manila, there is bound to be a
view against you, pasensiya ka, you cannot construct closer certain amount of noise thats part of what you
than THREE METERS to the boundary line. have to pay for living in an urban community.
- INTERMEDIATE DISTANCES: the law makes a distinction
between TALL trees and SMALL trees.
o You are not supposed to plant trees very close to the VELASCO VS. MANILA ELECTRIC COMPANY: there was a certain
boundary line of your property. doctor, Dr. Velasco, he was constantly irritated by a certain kind of
o TALL TREES: distance of at least TWO METERS. noise emanating from a Meralco substation, which happen to be
o SMALL TREES: FIFTY CENTIMETERS. located near his property. So he sued for damages.

ART. 680: if the branches of the tree of your neighbors extend over - SC: in determining whether there is justification / basis for the
your property, you do not have the right to cut of those branches. award of damages, what we should consider would be the
STANDARD based on an ORDINARY PERSON of ordinary
- You can just demand your neighbor to cut them. sensibilities, not what would be irritating to somebody who is
- But from the invasion is from below (roots), then you can cut very sensitive, because noise is something which we have to
them off. really accept as a part of daily living in an urban setting.
- For branches extending over your property, it does not always - At any rate, in this case, studies were conducted and even
result to damage and injury. experts were consulted, and it was established that the amount
o BENEFITS: sweet fruits on the branches extending to of noise emanating from that Meralco substation was really
your land. HIGHER than the ambient noise in that neighborhood.
o RULE: bawal pong yugyugn ung branch or sungkitin. o Justified the award of damages to Dr. Velasco.
The law only gives you the right over the fruits that fall - REMINDER: it was also in that case where the SC said the
NATURALLY. provision in the Civil Code on extra-ordinary inflation or
deflation of the currency (ART. 1250) cannot be used if the
EASEMENT OF NUISANCE: not really an easement simply a obligation does not arise from contracts.
restriction on property.
o WHY? The provision itself says currency stipulated. There was town in Bulacan engaged in the leather-tanning industry.
o So if your obligation arises NOT because of contract, There was a time na papasok ka pa lang dun, naamoy mon a ung
but in the case of quasi-delict, there is no basis for ibang amoy.
applying that provision.
o You cannot ask for the adjustment on award of - Merely a nuisance per accidens, not a nuisance per se.
damages when it took so many years before the Court
had made its decision. JUSTICE CRUZ: he could not quite reconcile to himself with the fact
o Provision is only applicable if there is a currency that when he took the bar examinations, there was a question involving
stipulated only from contracts. a patis factory. And I think the ultimate issue in that question was WON
hat patis factory was a nuisance per se or a nuisance per accidens.

- Of course his answer was based on the conclusion that such

If you construct a part of your house encroaches upon a public street was only a nuisance per accidens but it would seem that he
nuisance for it obstructs the free passage of the public street. was not given high mark with respect to that question and it
would seem that the examiner during that time thought that a
A nuisance may either be a PUBLIC NUISANCE or a PRIVATE patis factory was a nuisance per se.
NUISANCE. - Which only tells us that even bar examiners can be incorrect in
their conclusions.
- That is one reason why after the bar examinations, every year,
PUBLIC NUISANCE PRIVATE NUISANCE there are certain groups which submit suggested answers to
the Chairman, the UP Law Center and PAL do that because it
is possible that the examinations appreciation is incorrect in his
If it affects either the entire If it does not affect the public at own question.
community or a considerable large or it does not affect a
number of persons. considerable number of persons. Mere lapse of time does not legalize any nuisance.

- It does not matter that that nuisance has been going on for
many years does not become legal simply because it has

- Simply stated, if you are the owner of a property and on that REMEDIES AVAILABLE AGAINST A PUBLIC NUISANCE AND
property, you maintain a dangerous thing or equipment, which PRIVATE NUISANCE:
is liable to attract children, and you do not take necessary
precautions to prevent children, especially those of tender
years, from getting injured, you are LIABLE for damages if a PUBLIC NUISANCE PRIVATE NUISANCE
child is injured by your appliance or equipment even if
technically speaking, the child is a trespasser.
There may be prosecution under
the RPC; there may be a civil
Let us say A has in his yard a huge industrial fan because you needed action for damages; there may be
it for some centralized air conditional unit. You know when children see abatement without judicial
something rotating, they tend to touch them. proceedings.

- If a child gets injured because of that, you will be liable under RE: abatement without judicial
the doctrine of attractive nuisance even if the child was proceedings that remedy is
technically a trespasser. available only if it is a nuisance
per se. That cannot be availed of
if it is merely a nuisance per
accidens ***
HIDALGO ENTERPRISES VS. BALANDAN: a swimming pool is not
an attractive nuisance.

- REASON: a swimming pool, according to the ratio of this case, * a local government unit, by means of a resolution / ordinance,
is simply an IMMITATION of nature. ordered the transfer of a gas station from its present location to
- The owner will not be liable even if there were no guards on the somewhere else.
premises and a child of tender years should drown in that pool.
- SC: that cannot be done. Summary abatement (without judicial
proceedings) is permitted only if it is a nuisance per se, not
when it is a nuisance per accidens.
CLASSIFICATION BETWEEN NUISANCE PER SE AND NUISANCE - Obviously, we can all agree that a gasoline station is only a
PER ACCIDENS nuisance if it is situated in a place where it should not be.
o It is not a nuisance under in any or all circumstances. It
becomes a nuisance when it is situated in a residential

A nuisance will would be a It becomes a nuisance only

nuisance in any or all depending on the location or the In another case, in Lucena, the LGU tried to owner the transfer of bus
circumstances. circumstances. and jeepney terminal from its present location.

- SC: that cannot be done without proper judicial hearing.

Example: a house of prostitution. Motel, patis factory, leather-
tanning factory

occupation, by its very nature, is that the property must
The city of Manila tried to prohibit motels, bars, sauna and massage not have an owner.

parlors in the Ermita district. When it comes to land, that is not possible because of
the Regalian Doctrine.

That is the reason why the law, even
- Again, the SC said it cannot be done without proper hearing categorically in ART. 714, states that an owner
because abatement without judicial proceedings is available of a piece of land cannot be acquired by
only in the case of a nuisance per se, not when it is merely a occupation.
nuisance per accidens. 4) DONATION:
6) TRADITION / DELIVERY: as a consequence of other contracts.
NUISANCE: District Health Officer will determine, will make sure that
one of the remedies available against the public nuisance are availed You always need a mode of acquiring ownership.
- Without a mode, ownership CANNOT be considered to have
- In the case of a civil action, that should be commenced by the been vested in a person.
local mayor, city or municipal mayor. - There should always be a mode.
- The right to file an action for the abatement or for damages
based on a public nuisance if it is especially injurious to him.
o Certain requisites which must be complied with: ACAP VS. CA: someone died and his heir executed a document
1) There must first be a demand made upon the entitled declaration of heirship with a waiver of hereditary rights. In
owner of the property or the lawful possessor of that document, a third person, who was not a legal heir, was
the property in which the nuisance exists. supposedly given the properties owned by the decedent.
2) The demand must have been rejected, for if it is
favorable acted upon by the property owner, - SC: the ownership of the properties subject of that document
there would be no need for any further action. did not vest in the third person because there is not MODE of
3) The abatement must also be approved by the acquiring ownership.
District Health Officer and it must be actually - That waiver does not operate to vest ownership in the third
executed with the assistance of the local police. person.
4) The value of the destruction must not exceed - There must always be a mode of acquiring ownership,
P3K. otherwise, ownership cannot be considered vested in a person.
o Considering present value and prices, I doubt if there
would be anything which would qualify for abatement
under this provision. BAR EXAM QUESTION: how do you distinguish OCCUPATION from


That which by itself is sufficient to Provides the reason / juridical It is essential that the property There can be possession even
transfer and convey ownership or justification for a mode. for the should not have an owner. when there is an owner.
acquisition of ownership.

Applies only to movables. Whether movable or immovable,

that would apply.
A sells his car to B. the title is the contract of sale.

- What would effectively transfer and convey ownership to B is Mode of acquiring ownership. By itself does not operate to vest
not the contract of sale but the DELIVERY of the car. ownership on the possessor.
- UNLESS and until there has been delivery, ownership would
not have been transferred and conveyed.

ART. 716: spoke of swarms of bees.

- If you happen to be engaged in the production of honey, so you
1) PRESCRIPTION own bees, and they transferred to the neighboring estate, you
2) LAW itself: separate mode of acquiring ownership. have the right to pursue them.
o Where if you are the owner of the parcel of land, that - That is hard to image: going after the bees, as usually, the bees
the fruit tree of your neighbor has some branches go after you :P
hanging over your property, the fruits which naturally - TWO DAYS ONLY: if you do not pursue them for two
fall would belong to you. consecutive days, then they belong to the owner of the land to

It is the law itself which is the mode of acquiring which they have transferred.
- RE: domesticated animals.
o Change of riverbed: if the river changes its course, the o Period: TWENTY DAYS.
abandoned bed ipso facto belongs to the owner of the o If you do not claim them within this period, they would
land which is now occupied by the new bed. belong to the one who has caught them.
3) OCCUPATION: when it comes to occupation, this would apply - Applies only to DOMESTICATED ANIMALS.
only to movables.
o Only movables can be acquired by occupation.
o When it comes to immovable (land), that cannot be
acquired by occupation because one of the requisites of

ART. 725: DONATION: an act of liberality whereby a person disposes
DOMESTICATED ANIMALS DOMESTIC ANIMALS gratuitously of a thing or right in favor of another who accepts it.

- The Code defines it as an ACT.

Subject to this provision. Dogs, cats: not subject to that o If you look at donations, however, it might be more
provision *** accurate to consider it not just as an act, but as a

REASON: because it does not just require the
act and consent of the donor, it always requires
* when you have a dog, even if they are in possession of another for the acceptance of the done.

more than 20 days, you can still claim your dog back, unless you have Without an acceptance, you do not have a valid
already abandoned your dog. - Only an owner of property can donate it.
o A non-owner cannot donate.
ART. 717: SPECIAL RULE FOR PIGEONS AND FISH: if they o If property is donated by somebody who is not the
transferred to another estate, provided they have not been lured by owner of the property, that is not a valid donation,
some artifice or fraud, they would belong to the owner of that other although of course, that may provide the basis for the
estate. acquisition of ownership not through donation, but
through prescription later on.
- When you owner a property, then there came a strong typhoon - Acceptance is necessary.
and the milk fish of your neighboring fish pond ended up in o Without it, there can be no valid donation.
your property, then you own them. Praise the lord. o Whether the donation is mortis causa or inter vivos, the
acceptance is required.
THE RULE OF FINDERS KEEPERS UNDER ART. 719 and 720 o If the donation is a donation mortis causa, the
acceptance can only be made AFTER the death of the
- If you find movable property which is not a treasure, and you donor.

know who the owner or lawful possessor is, you are obligated An acceptance of a mortis causa donation
before the death of the donor would be clearly
to RETURN it. premature.
o There was an elementary student who was late for class - FOUR PRINCIPAL TYPES OF DONATIONS according to one
one day and the teacher asked him why he was late. classification (based on the PURPOSE or CAUSE):
The student replied that there was a man who lost his 1) PURE or SIMPLE DONATION: a donation which is
P500 and he was looking for it. He was late, not essentially and exclusively gratuitous in character.
because he helped the man look for his money, but o No conditions.
because he stepped on the P500 and was waiting for o Not intended to remunerate another person. o
the man to leave. Simply born out of the generosity of the donor.
o RULE: you are supposed to return to the lawful owner or 2) REMUNERATORY or COMPENSATORY DONATION:
possessor. this is intended to remunerate or compensate another
- In this connection, you have a provision in the RPC, ART. 308, person or the donee for PAST services, which,
you are guilty of theft if you do not give that property to the however, do not constitute demandable debts.
lawful possessor or the proper authorities under ART. 719. o You have a classmate who has always been
- REQUIREMENT: to deliver it to the local mayor. helping you study for your daily recitations,
o The mayor is obliged under this provision to publish the whenever you are reciting, nasa likod mo yan
finding of that movable for two consecutive weeks in bubulong bulong ng tamang sagot, etc., if you
any way he deems best (post notices in the bulletin donate later on in life to your classmate of yours
board in the city hall). when you became a millionaire, hat will fall
o If the property is of such nature that it would deteriorate under this category.
or it would necessitate incurring expenses just to keep o REASON: it is intended to somehow recompense
it, which would diminish the value, the law allows the your classmate for past services which do not
sale of the property after eight days from the publication constitute demandable debts.
of the notice. 3) MODAL or CONDITIONAL DONATION: made in
o EXAMPLE: property found is 1 gallon of ice cream consideration of FUTURE services or the donor
you cannot even wait for eight days as it would imposes certain conditions or charges where the value
deteriorate. of the property donated is more than the charges
- SIX MONTHS from publication, that is the period given to the imposed by the donor.
owner to appear and to claim it.
o REASON: if the value of the property donated is
o If he does not appear, then the property would belong
equal to less than the amount of charges
to the FINDER.
imposed by the donor, then it would fall under
o If the owner however appears, there is an
the fourth category.
4) ONEROUS DONATION: important legal consequence
value of the property to the finder.
this donation is not in reality an act of generosity.
o Consequently, it will be governed not by the law
INTELLECTUAL CREATION: rule with respect to letters (ART. 723)
on donations, but by the law on contracts.
who has ownership? The ADDRESSEE (the person to whom these o If the amount / the value of the property donated
letters were addressed and delivered). is equal to or even less than the amount of
charges or the value of the conditions imposed
- BUT, they cannot just be published without the consent of the by the donor.
writer of the letter or his heirs. o If that happens, you apply the law on contracts,
- The Courts may authorize the publication if the same is rather than the law on donations.
necessary for the public good or in the interest of justice. - CLASSIFICATION BETWEEN DONATIONS INTER VIVOS
- The addressee or the recipient of the letter cannot just publish AND DONATIONS MORTIS CAUSA
o That affords a degree of protection for people who are
fond of writing love notes and love letters.
o Di siya pwedeng ibuking without his consent.

o TESTAMENTARY DISPOSITION: impossible or illegal
DONATION MORTIS CAUSA DONATION INTER VIVOS conditions are simply ignored. They do not affect the
validity of the donation.
o The rule is different in the case of obligations: if an
The form prescribed for WILLS. obligation I made to depend upon an impossible or
You can only have a valid illegal condition, not just the condition but the obligation
donation mortis causa if you itself is rendered invalid.
execute a valid last will and o REASON FOR DIFFERENCE: donations and
testament. testamentary dispositions are principal based on the
generosity and the liberality of the donor.

To take effect only AFTER the To take effect during the lifetime
death of the donor. of the donor. In one case, this involved the Roman Catholic Archbishop of Manila. A
property was donated and the condition was that the property shall not
be alienated for 100 years.
The donor, in the deed of The donor reserves the usufruct
donation prohibited the of the property (I donate this - Considered as ILLEGAL condition by the SC.
registration of the donation before property to X but I hereby reserve - An unwarranted and undue restriction on the rights of
his death. the usufruct of this property which ownership.
I am donating until I die).

- The property has already WHEN A DONATION IS PERFECTED: a donation is perfected from
been donated. Its only the the moment the donor knows of the acceptance by the donee.
usufruct which is retained
by the donor. But - In this connection, under ART. 732, the donors capacity shall
ownership would have be determined at the time of the making of the donation.
already been transferred. o When is the donation deemed made? When is this
moment called that making of the donation?

It is at the moment when the donation is
The donor says in the deed of SC: the donor granted the donee PERFECTED.

donation: I am donating this a limited right to dispose (the That moment of perfection at the moment that
property but I hereby reserve the donee may dispose of the the donor KNOWS of the acceptance of the
right to revoke this donation any donated properties only if it is donee and therefore, the donor must have
time before my death. necessary to raise funds for my capacity at that time.
support). o If the donor makes or signs the deed of donation, when
- As long as there is a he was insane (incapacitated), the donation was sent to
reservation on the part of the the donee who in due time decides to accept it in the
donor of the right to revoke, proper form and the acceptance is sent back to the
due to any cause, any time donor, and when the acceptance was delivered to the
before his death *** donor, he was already sane. Is there a valid donation?
If we apply this provision literally, it would seem
that YES, there is a valid donation because the
In one case, in the deed of The document is titled as a capacity of the donor is determined as of the
donation, the donor prohibited the donation mortis causa, and it is time of making of the donation (refers to the
donee from disposing of the clear in the deed of donation that moment of perfection, which is that moment
donated property within 10 years it is being made for services when the donor has knowledge of the
from the death of the donor ( rendered and still being rendered acceptance by the donee).

but for a period of ten years by the donee, and it is provided But what about the donor? If you happen to be
counted from the time of my that the donee shall take the donor in that case, syempre you were crazy;
death, you cannot dispose of possession only after the death of you did not know what you were doing. Then
these properties). the donor. one day you became sane and the acceptances
arrived. Do you think it will be fair in so far as
you are concerned, to be left of any possible
in one case, the donor said in the In one case the donor made a remedies?
deed of donation: the properties warranty. He warranted that I dont think so.
cannot be disposed of in any way nobody will disturb the donee or The donor should be allowed to
without my consent. question the donees right question the validity of the donation.
because the warranty made by After all, he was not capacitated when
the donor implied the title to the he signed the donation.
property has already been As a matter of fact, I think we can even
CONVEYED. find guidance in the provisions of ART.
1323, under the general rules in
contracts: an offer becomes ineffective
upon the death, insanity, insolvency or
* JUSTICE JBL REYES: that is one of the characteristics of a civil interdiction of either party before
donation mortis causa. If the donation is revocable at will, any time acceptance is conveyed.
before the death of the donor, that is one of the distinguishing marks of Under that provision, even assuming the
a donation mortis causa. both parties were capacitated, but after
the offer was made, either one of them
The donor is allowed to impose CONDITIONS to which the donation becomes dead or insane, or is placed
would be subject. under civil interdiction or becomes
insolvent, automatically the offer
- If it imposes impossible or illegal conditions, these are not becomes effective.
considered imposed.

It think we can apply the principle even writing). Otherwise, if the the acceptance must be noted in
in the case of donations. donation or the acceptance is not both instruments and the donor
With more reason if at the time the offer in writing and the value of the must be notified thereof in an
of donation was made, the donor was personal property exceeds authentic form.
already insane. P5000, the donation is VOID.


1) Those made between persons who are guilty of adultery or PAJARILLO VS. IAC: however, in one case, the SC, speaking through
concubinage at the time of the donation. Justice Cruz refused to strictly apply ART. 749.
2) Those which are made between persons found guilty of the
same criminal offense, where the donation was made in - There was a donation involving real property and the
consideration of the said offense. acceptance was made in a separate instrument. Unfortunately,
3) Those made in favor of public officers, or their spouses, the law requires that if the acceptance is made in a separate
ascendants and descendants. instrument, the donor must be notified thereof in authenticated
o The law says wife. What if husband? form and that step must be noted in both instruments.
o The word wife should be understood to mean wise. - In this case, there was a failure to NOTE that step in both
o DEAN: this provision is useless because who will agree instruments that the donor had been notified an authentic form
to receive a bribe in the form of a donation (with paper (notice through authentic form constancia autentica).
trail and everything). - The SC refused to apply strictly the provisions of this article
because according to them, if the provision will be applied
MINORS/PERSONS WHO CANNOT ENTER CONTRACTS: may be strictly, it would result in injustice and it will result in a distortion
the donees in donations but the acceptance should be done through of the intention of the donor.
their legal representatives.

- Even unborn but conceived children can already be donees. WHAT MAY BE DONATED: everything you own, as long as you
o Those who are still in the womb are already deemed reserve either in usufruct or in full ownership sufficient property for your
born for civil purposes beneficial to them under the own support as well as for the support of people legally entitled to get
provisions of the Civil Code. support from you (general limitation).
ART. 744: the rule on DOUBLE DONATIONS. - If you do not observe that limitation, you donated everything
without such reservation, the donation may be REDUCED on
- If the same properties donated to two different persons, the rule petition of any of the persons affected.
on DOUBLE SALES will apply. - A donation cannot comprehend FUTURE property.
- There is something wrong with this provision. o A property is future property if the donor cannot dispose
o REASON: it seems that the codifiers forgot that of it at the time of making the donation.
donation by itself is a distinct mode of acquiring - Is there a right of accretion in donation?
ownership. o GENERAL RULE: no accretion if there are several
o EXCEPTION: if the donees are spouses, unless
A donated property to B and later on A donated the same property to otherwise provided by the donor.
C. o There is accretion in donation under the same
consequences as testamentary succession
- It is obvious that if the first donation is valid, A ceases to be the (repudiation, refusal to accept, incapacity or pre-
owner of the property. deceased).
- It is already owned by B, the donee.
- If A donates the same property to C, then the second donation, In the case of REVERSION (ART. 757): may be validly established in
without question, is obviously invalid because only the owner of favor of the donor in any case and circumstances.
the property can donate it.
- For any case or circumstances, pwede basta the reversion is in
favor of the donor.
The acceptance must be made by the donee himself or by a person - If it is in favor of other persons, it can only be validly made if
who is properly authorized to accept, otherwise, the donation is void. the persons are living at the time of the donation.
- If the provision on reversion is invalid it does not comply with
- With respect to donation inter vivos, the acceptance must be the requirements of this article only the provision on reversion
made DURING THE LIFETIME of the donor and of the donee. is voided.
o The donation remains valid.

A donated a property to B, but A provided for reversion in the deed of

PERSONAL PROPERTY REAL PROPERTY donation upon the death of B, the property will revert to me.

- That is valid, because A is the donor.

Even an ORAL donation is valid Regardless of the value (the real - If A said, upon the death of B, the property donated will go to
and requires the simultaneous property donated may be worth the first born child of my brother, Jose.
delivery. only P200), you always need a o At the time of the donation, Jose still doesnt have a son.
If the value of the personal donation of real property. o That is not a valid reversion because at the time of the
property donated however donation, the intended recipient in case of reversion is
exceeds P5000, for the donation The acceptance must be made not yet living.
to be valid, the donation, as well either in the same instrument or in o But in that case, there would still be a valid donation.
as the acceptance, must be in a separate instrument. Only the provision on reversion is considered void.
WRITING (kahit sa kapirasong
papel lang, as long as it is in If made in a separate instrument,

Is the donee obligated to pay the debts of the donor? NO.

- If there is no order from the donor for the donee to pay the SC ruled in one case: the four year prescriptive period from an action
debts of the donor, the donee is not obligated to pay the debts for revocation of the donation, based on non-compliance with a
of the donor. condition under ART. 764, that four-year prescriptive period does not
- If the donation is made in fraud of creditors, the regardless of apply if there is a stipulation on automatic revocation.
whether there is an order or not, the property donated can be
made liable for the payment of the debts in favor of the - The four years will apply if there is NO STIPULATION on
defrauded creditors. automatic revocation.
- In case of donations of fraud of creditors, the good faith of the
donee will not protect him.
o Even if the donee is in good faith, that will not protect
him. ROMAN CATHOLIC BISHOP OF SAN PABLO: there was, if you look
o The creditors would have the right to proceed against the at the facts, no strict compliance with the conditions and yet the SC did
property donated. not allow revocation.
o REASON: unlike in the case of transfers by onerous title,
in the case of a donation, it is purely gratuitous. Wala - There a parcel of land was donated to the diocese. The
naman nawala sa donee. He only gave his acceptance. condition of the donation was that parcel of land was to be
So even if he is in good faith, that will not protect him if used for a home for the aged.
the transfer is by gratuitous title. - The bishop later on realized before the home for the aged
- If there is an order to pay, the debts of the donor: the donee is could be put up, that the property donated was not suitable for
hereby ordered to pay my debts. a home for the aged because the adjoining areas were being
o That applies to only PRE-EXISTING DEBTS of the donor. converted to an industrial zone.
o It will not cover debts which are incurred by the donor o If you put a home for the aged there, surrounded by
after the donation. industries, then lalong iikli buhay ng mga nilagay mo
ART. 760: REVOCATION: situations when a donation may be revoked o The place must be peaceful, serene, has fresh air not
or reduced (BAR): right in the middle of the industrial zone.
- So instead of using the property for the home for the aged, the
1) BIRTH: if at the time of the donation, the donor did not have bishop decided to put up that home for the aged somewhere
any children or descendants, the law says the donation may be else and the property was instead leased to a third person.
revoked or reduced if subsequently he should have children. - There was an action for the revocation of the donation on the
2) ADOPTION: or in case he adopts a minor child. round of non-compliance.
3) RE-APPEARANCE: or if a child which he thought was dead - SC: if you look at it, the bishop was really trying to comply to
turn out to be living. the condition, the best way he could so this action for
revocation will not prosper.
and reduction.

- It will be revoked or reduced only to the extent that it is In another case: a parcel of land was donated to a certain school with
inofficious. the condition that the land would be used exclusively for school
- It will be inofficious only if it exceeds the so-called free portion buildings.
of the persons estate; if it will impair the legitime, taking into
account the estate of the testator at the time of the birth, - The problem is that here was a certain type of school building
appearance or adoption of the child. that the government said itself that the building cannot be built
- NOTE: the provisions, the revocation or reduction of the there.
donation, do not happen automatically. o They needed at least one-hectare.
o There must be a corresponding case filed for the - So the property was exchanged with another property and
revocation or reduction of the donation. there, the school building was built.
o And in connecting with ART. 761, note that in one case, - There was an attempt to revoke the donation but the SC said,
the SC categorically said: there would be no revocation, again, what was done was precisely in accordance with the
no reduction of the donation even in case of birth, general purpose of the donation.
adoption or reappearance if there is no allegation and
proof in the complaint that the legitime has been

The ultimate basis of ART. 760 is impairment of
legitime. What we can possibly glean for this cases: aslong as the action taken,

If there is no impairment (not alleged or not
established and proved), then there is no basis while not strictly speaking is a literal compliance with the condition, as
for the revocation or reduction of a donation. long as the purpose is maintained, the objective is maintained, that will
- The action cannot be renounced and it is transmitted upon the not be considered a sufficient basis for revoking the donation.
death of the donor to his legitimate and illegitimate children and

ART. 464: revocation is based on NON-FULFILLMENT OF A CENTRAL PHILIPPINE UNIVERSITY: property was donated to that
CONDITION. university, with the condition that the university should put up a medical
school in honor of the donor.
- If the donee does not comply with them, the donation may be
revoked at the instance of the donor. - Around 50 years later, the heirs of the donor filed an action to
- Prescriptive period: FOUR YEARS from the time of the non- revoke the donation because of the non-compliance of the
compliance with the condition. condition.
- The action is transmitted to the heirs of the donor and may be - SC: walang duda, more than enough time has passed. Almost
exercised even against the heirs of the donee. half a century has passed and the condition has remained
o There is therefore any judicial obstacle for the revocation
of the donation.


- DISSENTING (DAVIDE): there should have been a time set yan so it is inofficious up to the extent of P50K.
first for compliance, though the majority said wala yan. It must be reduced to P50K.
G must return to the estate P50K, and such will
be given to A and B to satisfy their legitimes.
INSTANCES WHEN A DONATION MAY BE REVOKED DUE TO o Supposing that you are the one to whom this P800K is
INGRATITUDE: owed, can you not run after these properties? NO.
You can only run after the donated properties of
1) If the donee commits n offense against the person, honor or the donor if they were made in fraud of
property of the donor, or of his [spouse] or children under his creditors.
parental authority. X was still rich when he made those donations.
2) If the donee imputes to the donor any criminal offense or any Moreover, there is a prescriptive period of
act involving moral turpitude, even if he should prove it, unless FOUR YEARS.
the crime or the act was committed against the donee himself, So creditors cannot run after these properties.
[spouse] or children under parental authority. - Collation is only for the benefit of compulsory heirs and one to
3) If the donee, without justifying cause, refuses to support the protect their legitimes.
donor when he is legally or morally obligated to give such


- It must be the donee himself who has committed these acts.

- If these acts were committed by the wife of the donee, that is
not included.

If the action is based on INGRATITUDE, it cannot be renounced in


- It prescribed within a short period of ONE YEAR counted from

the time that the donor has knowledge of the act of ingratitude
as long as at that time, it was possible for him to institute the

ART. 770: Because of its highly personal nature. The action cannot be
transmitted to the heirs of the donor.

- Even if the donor should die within the prescriptive period of

one year.
- It cannot also be instated against the heirs of the donee.
- If prior to the death of the donee, the case has already been
filed by the donor, it will continue.

ART. 771 773: involve COLLATION.

- When a person dies, all gratuitous dispositions during his

lifetime will be added or collated to his estate.
- If they exceed the free portion, they would be reduced.
o PURPOSE: to protect the legitime of compulsory heirs.
- Only for the benefit of compulsory heirs and cannot be invoked
by persons who are not entitled to any legitime.

ILLUSTRATION: X has two children, A and B. In 1975, he donated a

parcel of land to his friend, F, worth P40K at that time. In 1988, X made
another donation to his other friend, G, worth P60K. During those
times, X was a multi-millionaire but when he died in 2005, his gross
estate was only P100K and he had debts of P800K.

- So he has more debts that estate.

- Will A and B inherit anything? YES, because of COLLATION. o
They are compulsory heirs entitled to a legitime so we
have to collate P40K and P60K = P100K.
o P100K will be the basis for determining the legitime of A
and B (1/2 portion) = P50K.
o They are entitled to a legitime of P25K each.
o The other P50K is the FREE PORTION.
o A donation is considered inofficious if it exceeds the free
portion. There are two donations (1975, 1988) and
between the two of them, if the free portion is not
sufficient to cover all donation, preference is given to
the earlier donation simply because priority in time is
priority in right. So in imputing these two donations,
uunahin natin ung P40K and kasya siya sa P50 na free
The next one if P60K and obviously, di kakasya