Professional Documents
Culture Documents
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
LAW ON PROPERTY
A: The law does not directly define what property is, all it Q: What is appropriation?
merely says is that all things which are or may be the object
of appropriation, then it merely classifies them as either: A: It is the act of taking a thing for one’s own use. It is
a. Real equivalent to occupation, the physical seizure of corporeal
b. Personal things which have no owner with the intention to acquire
their ownership but it is not limited to that .
Better Defintion: Property is an object or right which is
capable, is appropriated, or is susceptible of appropriation by Q: What is a thing?
man, with capacity to satisfy his wants and or needs.
A: Refers to existing objects which can be of some use to
Property does not only cover material things (solid, liquid, man.
gas) because it mentions of right.
Thing is apparently synonymous with the word property.
Q: Is air a property? Technically, thing is broader in scope for it includes both
appropriable and non-appropriable object.
A: Air per se is not a property, but if it is placed in oxygen
tanks, it now becomes property. Air becomes a property Property is always a thing, but a thing is not always a
when it comes under the control of man. property.
Q: What are the attributes of property? Q: What are the classification of things?
A: A:
1. Susceptible of appropriation 1. Res Communes- things which belong to everybdy like
2. Indivoduality or substance sunlight, moonlight, moving air, but these things do no
3. Satisfy the moral or economic needs of man qualify as properties as contemplated under Art. 414
because they are beyond human control or appropriation
Q: Are the rights under the Bill of Rights considered as 2. Res alicujus- are things which are owned by a person or
property? group of persons like house and lot, a parcel of land.
3. Res nulius- things which do not have any owner like the
A: No. Although the concept of property does not only whale, sharks, wild animals in the forest. These things are
include corporeal things, whether solid, liquid, or gas, as it qualified as property because this can be placed under
Facultad de Derecho Civil 1
UNIVERSITY OF SANTO TOMAS
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
the control of man through human occupation. Once Q: What are the classifications of property?
seized by man, it automatically belongs to him.
A:
Q: Is human body a thing while the person is alive? 1. As to mobility
A: Generally, no. However, certain body parts when severed a. Immovable or real property
from the body become property like hair, blood, etc. b. Movable or personal property
3. Acquisitive presctiption
CATEGORIES OF IMMOVABLE PROPERTIES
GOOD FAITH BAD FAITH
Movable 4 years 8 years 1. NATURE- property which cannot be moved from one
Immovable 10 years 30 years place to another. Includes such constructiibs adhered to
soil, lands, roads, mines and quarries, wells and sewers
4. Venue in Remedial Law while they form part of soils (Pars. 1 and 8) regardless of
any other consideration.
Q: May a building be mortgaged separately from the land? Ex: ceiling fan attached to ceiling
A: Yes, a building may be validly mortgaged separately from Q: Distinguish Par. 3 from Par. 4.
the land upon which it is built. While it is true that a
mortgage of a land necessarily includes, in the absence of PAR. 3 PAR. 4
stipulation, the improvements thereon, still, a building by Cannot be separated from Can be separated from the
itself may be mortgaged apart from the land on which it has the immovable without immovable without breaking
been built breaking or deterioration or deterioration
Need not be placed by the Must be placed by the owner
Steel towers constructed by the Manila Electric Company are owner1 of the immovable or his
removable and merely attached to a square metal frame by agent, express or implied
means of bolts, which when unscrewed, could easily be Real property by Real property by
dismantled and moved from place to place. Hence, not being incorporation incorporation and
adhered to the soil, they are not to be considered real destination
properties.
The fact that the machineries were bolted or cemented on
Par.2 real property mortgage does not make them ipso facto
immovable under Art. 415 par. 3&5, as the parties’ intent has
Trees by their very nature are immovable, cannot be moved to be looked into. Even if the properties appear to be
from one place to another; but if cut or uprooted it becomes immovable by nature, nothing prohibits the parties from
personal property because it ceased to be adhered to the soil. treating them as chattels to secure an obligation under the
principle of estoppel.
No matter what their size may be, trees and plants are
considered real property BY NATURE, if they are spontaneous The breakage or injury, in case of separation, must be
products of the soil; and BY INCORPORATION, if they have substantial.
been planted thru labor.
Trees and plants planted or land are owned by registered Things placed on land or building with intention to attach
owner of the land, unless the owner has recognized the them; immovables by incorporation and destination
ownership in the hands of another.
The one who placed the statue etc. must be the owner of the
STANDING CROPS (growing crops) are real property by land or building or his representative or agents (if tenant
incorporation as long as they had not been gathered yet. If attached it is personal property).
harvested then it is personal property, except in the case of
Q: What are the requisites under this paragraph?
A: Under Par. 5.
Par.5
Q: Give the exception?
Intended by the owner of the tenement for an industry or
works being carried in the land or in a building and which are A: When placed on the land or tenement by a tenant.
necessary for the pursuit of said industry or works
Q: Give the exception to the exception?
If the objects are separated, they become personal property
A: When the tenant had promised to leave the machinery on
If machinery are installed by lessee, the general rule is that the tenement at the end of the lease, or when he acted only
these are personal or movable property as an agent of the owner of the land.
EXPN: lessee agreed to give the machinery to the lessor upon Par. 6
termination of lease (considered immovable)
Animal houses, pigeon-houses, beehives, fish ponds or
Q: Under par.5, what are the requisites to be considered as breeding places of similar nature, in case their owner has
a real property? placed them or preserves them with the intention to have
them permanently attached to the land, and forming a
A: permanent part of it; the animals in these places are included
1. Machinery, etc. must be placed by the owner of the
tenement or his agent Animal houses; adhered to the soil -If purposely built to
2. The industry or works must be carried on in a building or attach to the ground, tree, wall ; owner of land intended to
piece of land be permanent.
3. Machinery, etc. must tend directly to meet the needs of
the said industry or works. The animal in the houses are considered part of the
4. They must be essential and principal elements of an immovable. If animals escaped, they ceased to be part of the
industry or works without which such industry cannot immovable.
function or carry on the industrial purpose for which it
was established. Hence, movables which are incidental Q: What are the requisites under this paragraph?
thereto cannot be considered immobilized.
a. Place by the owner or by the tenant as agent of the
owner, with the intention of permanent attachment
Cash registers, typewriters, etc. usually found and used in b. Forms permanent part of the immovable
hotels, restaurants, etc. are merely incidentals not considered
immobilized by destination, for these businesses can May be considered as real property under Art415(1) if it is a
continue or carry on their functions without these construction adhered to the soil in a permanent manner even
equipments. if not placed by the owner of the immovable. Animals in
pigeon-houses, beehives, etc. are considered real property
Steel towers are not intended for industry or works on the
land since Manila Electric Company is not engaged in an Par.7
industry or works on the land in which the steel supports or
towers are constructed. Fertilizers should be actually used on the land. If they are still
on sacks or containers, they are still movables.
Machineries of breweries used in the manufacture of liquor
and soft drinks, though movable in nature are immobilized The moment it is spread or applied directly to the soil, it is
because they are essential to said industries; but the delivery immovable by destination and incorporation. Once
trucks and adding machines which they usually own and use permeated to the soil, it cannot be removed from it without
are mere incidentals and retain their movable nature. destroying it
Par.8
Par.10 In U.S. v. Carlos, the Court convicted the accused of theft. The
RPC provides that personal property is the subject of theft.
GR.: A personal right is always regarded as personal property Electricity is a valuable article of merchandise and can be
bought and sold like any personal property.
XPN: In the cases of public works which are considered as
real property. In Laurel v. Abrogar, the Court held that gas and electrical
energy should not be equated with business or services
A person’s one-half interest in business is a personal provided by business entrepreneurs to the public.
property. Additionally, the long distance of call services of a telephone
company are not movable properies which may be the
In Presbiterio v. Fernandez, it was held that as an subject of theft.
improvement to the land, by express provision of the law,
though not physically so united, the sugar quotas are NOTE: The author, composer, partner, sculptor, and inventors
inseparable therefrom just like servitudes and other real have rights over their works. These rights are PERSONAL
rights over an immovable. PROPERTY.
Q: How do you classify objects as to their consummability? Art. 420. The following things are property of public
dominion:
A: (1) Those intended for public use, such as roads, canals,
1. Consummable property- cannot be used in a manner rivers, torrents, ports and bridges constructed by the State,
appropriate to their nature without being consumed banks, shores, roadsteads, and others of similar character;
2. Non-consummable property- one which can be used (2) Those which belong to the State, without being for public
without it being consumed, being eaten or used. use, and are intended for some public service or for the
development of the national wealth. (339a)
NOTE: The test is whether a property can be used over and
over again. If yes, it is non-consummable. Q: What are the classification of property of public
dominion?
CONSUMMABLES v. FUNGIBLES
A:
Facultad de Derecho Civil 7
UNIVERSITY OF SANTO TOMAS
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
1. Property for public use years, renewable for not more than twenty-five years, and
2. Property for public service under such terms and conditions as may provided by law. In
3. Property for the development of national wealth cases of water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of waterpower,
Q: What is a property for public use? beneficial use may be the measure and limit of the grant.
A: These are properties which can be used by like roads, Q: What are the properties of Public Dominion under
bridges, state rivers, and the like. Article420, NCC?
Q: What is the “Doctrine of Jura Regalia”? Q: Does the collection of fees for the use of public property
affect its public character?
A: All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential A: No. In Manila International Airport Authority v. CA, it was
energy, fisheries, forests or timber, wildlife, flora and fauna, held that as long as the property is intended for public use, it
and other natural resources are owned by the State. With the will remain property for public dominion notwithstanding the
exception of agricultural lands, all other natural resources fact that fees have been collected from the people. Such fees
shall not be alienated. The exploration, development, and collected will not affect the character of the property as such
utilization of natural resources shall be under the full control are only used for maintenance purposes.
and supervision of the State. The State may directly
undertake such activities, or it may enter into co-production,
joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least 60 per Art. 421. All other property of the State, which is not of the
centum of whose capital is owned by such citizens. Such character stated in the preceding article, is patrimonial
agreements may be for a period not exceeding twenty-five property. (340a)
Q: What are patrimonial property of the state? Q: What if the property is abandoned, can it be alienated
already?
A: These are properties of the state which is not intended for
public use, public service or for the development of the A: No. A formal declaration from the Executive Department
national wealth. that the property is no longer intended for public use or
public service is a condition sine qua non for it to be
These are acquired by the state in its private capacity. Hence, converted to patrimonial property.
it can be subject to prescription or appropriation and can be
an object of ordinary contracts or agreements. Q: Can the local government declare or withdraw a public
property from public use?
Q: What is the coverage of patrimonial property?
A: Generally, no. Except when the power or authority is
A: granted by law.
1. Owned by the State in a private / proprietary capacity
2. Properties of Public Dominion no longer intended for
public use or public service
Art. 423. The property of provinces, cities, and
Q: How can a property be classified as a patrimonial municipalities is divided into property for public use and
property? patrimonial property. (343)
Q: What is the coverage of patrimonial property? Local government cannot withdraw a place for public se and
declare such as patrimonial without the grant from congress.
A:
1. Owned by the State in a private / proprietary capacity Even if a public plaza is built on a private land, it shall be
2. Properties of Public Dominion no longer intended for considered as property for public use and the owner of the
public use or public service land is deemed to have waived waived his right over the land
due to the continuous enjoyment and use of such as public
Q: Can the property of public dominion intended for the plaza.
development of national wealth be converted to
patrimonial property? Classification of municipal property devoted for distinctly
governmental purposes as public, under the Law of Municipal
A: No. Only property for public dominion intended for public Corporations (Special Law) should prevail over the Civil Code
use and public service when no longer intended for that (General Law).
purpose may be converted to patrimonial property and
excluded those intended for the development of national
wealth.
CHAPTER 1
Art. 425. Property of private ownership, besides the OWNERSHIP IN GENERAL
patrimonial property of the State, provinces, cities, and
municipalities, consists of all property belonging to private Art. 427. Ownership may be exercised over things or rights.
persons, either individually or collectively. (345a) (n)
A: Only Filipino citizens can acquire alienable and disposable A: Juridical relation of a person over a thing by virtue of
public lands. which said person has the exclusive power or authority to
receive all the benefits and advantages arising from said
Q: Can alien acquire private ownership over the lands? thing, save those restricted by law or by recognized rights of
others.
A: As a general rule, aliens have no right to acquire any public
or private lands in the Philippines. However, through Bundle of rights that may be exercised over a property;
hereditary succession, an alien may acquire alienable and independent right of exclusive enjoyment and control of the
disposable land. thing for the purpose of deriving therefrom all advantages
required by the reasonable needs of the owner (holder of
Q: What is the KRIVENKO DOCTRINE? right) and the promotion of the general welfare but subject
to the restrictions imposed by law and the right of owner;
A: The capacity to acquire private lands is made dependent real right to enjoy, dispose, exclude and recover [EDER] a
on the capacity to acquire lands of public domain. thing without limit other than those required by law or
imposed by the owner himself
Under the Krivenko Doctrine, non-Filipinos cannot acquire or
hold title to private lands or to the lands of the public A thing pertaining to one person is completely subject to his
dominion except only by way of legal succession. will in everything not prohibited by law.
A:
1. Right to enjoy the property (Art428 par1, NCC) Art. 428. The owner has the right to enjoy and dispose of a
2. Right to dispose the property (Art428 par1, NCC) thing, without other limitations than those established by
3. Right to recover property from any holder or possessor law.
(Art428 par2, NCC)
4. Right to exclude any person from enjoyment and disposal The owner has also a right of action against the holder and
of the property (Art429, NCC) possessor of the thing in order to recover it. (348a)
5. Right to enclose or fence the land or tenement (Art430,
NCC) 3 RIGHTS OF OWNER:
6. Right to demand indemnity for damages suffered due to
lawful interference by a third person to avert an 1. Right to enjoy a thing
imminent danger (Art432, NCC) It is the right to collect the rents, fruits, benefits which accrue
7. Right to just compensation in case of eminent domain from a thing (jus fruendi).
(Art435, NCC)
8. Right to construct any works or make any plantations 2. Right to dispose of a things
and excavations on the surface or subsurface of the land It includes the right to sell, donate, alienate and encumber his
(Art437, NCC) property. Note that the right to destroy subject to restrictions
9. Right to hidden treasure found in the owner’s property imposed by law. Also, the right to chose not to
(Art438, NCC) destroy/dispose.
10. Right to accession (Art440, NCC)
3. Right to recover a thing
Alternative answer: Recover the possession of his property which is unlawfully
taken or withheld from him by another. This right is given
1. Jus utendi (to use) only to owner.
2. Jus fruendi (to fruits)
3. Jus dispodendi (to dispose) ACTIONS FOR RECOVERY OF POSSESSION
4. Jus vindicandi (to recover)
5. Jus abutendi (to abuse) Q: What are the actions for the recovery of possession?
6. Right to exclude
7. Right to enclose A:
A. For Real Property
Q: What are the attributes of Ownership? 1. Forcible entry or unlawful detainer
2. Accion publiciana
A: 3. Accion reinvindicatoria
1. Jus Utendi - Right to use the property without destroying
the substance B. For Personal Property
2. Jus Fruendi- Right to the fruits 1. Replevin
3. Jus Disponendi- Right to dispose or alienate
(c) Imposed by the owner Art. 429. The owner or lawful possessor of a thing has the
(d) Imposed by the grantor right to exclude any person from the enjoyment and
(e) Imposed by the constitution disposal thereof. For this purpose, he may use such force as
may be reasonably necessary to repel or prevent an actual
Q: What are the limitations on Ownership imposed by Law? or threatened unlawful physical invasion or usurpation of
his property. (n)
A:
1. Legal Easement PRINCIPLE OF SELF-HELP
2. Art25, NCC – during a period of public want or
emergency, thoughtless extravagance in expense for Q: What is the PRINCIPLE OF SELF-HELP?
pleasure or display may be stopped by order of the
courts at the instance of any government or private A: Authorizes an owner or lawful possessor of a property to
charitable institution use reasonable counter-force to prevent or stop another
3. Sec118, CA141 – Lands acquired under free patent or person from taking the former’s property. However, force
homestead cannot be subject to encumbrance or must be reasonable necessary to repel the unlawful physical
alienation within five years from the issuance of the invasion or usurpation of property. The threat is actual if
patent threatened unlawful physical invasion.
4. Legitime
5. Conflict of Private Rights (example, accession continua) Q: What are the requisites under principle of self-help?
A: The inherent power of the state exercised for the purpose A: Yes, a third person who is not a possessor may repel the
of promoting general welfare, comfort and convenience of unlawful possession on the property owned by another. In
the people by restraining and regulating liberty and property. such an event, he is acting as a negotiorum gestor, the owner
must indemnify him for injuries sustained.
Q: What is the power of eminent domain?
Q: What is the test of reasonableness?
A: The inherent power of the State that enables it to forcibly
acquire private lands intended for public use upon payment A:The reasonableness of the defensive acts resorted to by a
of just compensation to the owner. It is only applicable where possessor is determined not by what he imagined to exist but
the owner is unwilling to sell or cannot accept the purchase by the objective situation.
price can there be an expropriation. It is subject to just
compensation and due process of law.
Q: What is the power of taxation? Art. 430. Every owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead hedges,
A: Every owner may enclose or fence his land or tenement by Q: What are the requisites under this Doctrine?
means of walls, ditches, live or dead hedges or by any other
means provided that in so fencing the property, no servitude A:
or easement constituted thereon should be impaired. 1. Interference necessary to avert an imminent danger and
rd
the threatened damage to the actor or a 3 person
2. Damage to another is much greater than damage to
property
Art. 431. The owner of a thing cannot make use thereof in
such manner as to injure the rights of a third person. (n) NOTE: In case of conflict, the DOCTRINE OF STATE OF
NECESSITY will prevail, because there is no unlawful
Property owner can use his property in any manner he aggression when a person or group of persons acts pursuant
desires provided he does not injure the rights of others to the right given in a state of necessity.
DOCTRINE OF INCOMPLETE PRIVILEGE OR DOCTRINE OF Q: Differentiate the Doctrine of Self-Help from Doctrine of
STATE OF NECESSITY State of Necessity.
GR.: A person cannot interfere with the right of ownership Doctrine of Self-Help State of Necessity
with another Invoked by the owner or Availed by another person
lawful possessor in against someone else’s
XPNs: protection of his right to property for the purpose of
1. Doctrine of incomplete privilege or state of necessity prevent other persons from averting an imminent
2. Principle of the Least Evil interfering with the danger to himself or to
property another person or their
Q: What is the basis of Art. 432? property
A: The owner may resort to judicial process to recover the A: It is the power or right of the state to acquire property
property of the person. whether registered or not for public use upon payment of
just compensation.
Q: What are the requirements to prove the claim?
Q: What is expropriation?
A:
1. Proper identification of the property A: Refers to the procedure by which the property is acquired.
2. Title must be clear, strong and credible
a. If both claims are weak, the claim of the actual Q: What are the requisites of Eminent Domain?
possessor of the land will prevail because he is
the presumed owner A:
b. Where both parties are equally at fault, the (1) private property as the object of expropriation
condition of the possessor is the best (2) property is taken by the state or competent
authority
Q: Why can’t the plaintiff rely on weakness of defendant? (3) public use
(4) attended with due process
A: (5) just compensation
1. Possible that neither is the true owner, defendant-
possessor is preferred Q: What are the characteristics of the power of eminent
2. Possessor is presumed the owner domain?
3. Possessor in good faith, not required to always carry
proof of ownership A:
4. He who alleges must prove (1) inherent power of the state lodged with the
legislative
(2) superior right to acquire
(3) independent existence from the state (constitution
Art. 434. In an action to recover, the property must be merely confirms)
identified, and the plaintiff must rely on the strength of his (4) all encompassing, whenever it is needed it will be
title and not on the weakness of the defendant's claim. (n) given
Q: What are the requisites for the action to recover? Q: Who are the defendants in an expropriation case?
A: A:
1. The plaintiff must properly identified the property 1. The owners and all other persons owning, occupying or
2. The plaintiff must have better title over the defendant claiming to own the property;
3. The plaintiff must rely on the strength of his title and not 2. all those who have lawful interest in the property to be
on the weakness of defendant’s title. condemned
To identify the property, the plaintiff must establish the Q: Can the previous owner get back the property?
boundary of the land then and the established boundaries
must be exactly the same with the surveyed one. Failure to A: It depends on the tenor of the decree of expropriation
do so will justify the dismissal of action. a. Full ownership or fee simple title to the petitioner –
remains the full owner regardless of the
disappearance or cessation of the public need of the
property
Art. 435. No person shall be deprived of his property except b. Subject to a condition- it will revert to the owner
by competent authority and for public use and always upon when the purpose of the expropriation is terminated
payment of just compensation. or abandoned, the original owner of the property
would reacquire the property
Should this requirement be not first complied with, the
courts shall protect and, in a proper case, restore the owner Q: What is the formula for Just compensation?
in his possession. (349a)
A:
A: Injuries which the owner of the property subject of Q: What is police power?
expropriation had suffered by reason of the expropriation
other than the loss of the property expropriated A: The inherent power of the state exercised for the purpose
of promoting general welfare, comfort and convenience of
Q: What are consequential benefits? the people by restraining and regulating liberty and property.
A: Gains or advantages which the property owner will enjoy A: What are the requisites for exercise of police power?
by reason of the expropriation.
A:
Q: How do you determine the market value? 1. interest of the general public (public safety, health,
security)
A: Market value is fixed at as of the date of actual taking or 2. means employed is necessary
occupation of the property by the petitioner; determined at 3. due process
the time of filing of the complaint or time of taking the 4. no payment of JC unless condemnation is unjustified
property whichever transpires first (value that property will 5. owner must be indemnified
bring, one who is not obliged to sell and one who is not
obliged to sell). Q: Differentiate police power from eminent domain?
Q: What is the meaning of ‘By Chance”? Q. A scavenger found a bag filled with bank notes and cash
in a dumpsite will it be considered a hidden treasure?
A: The finder had no intention to search for the treasure.
There is no agreement between the owner of the property A. No. Bills and notes from the banks have serial numbers.
and the finder for the search of the treasure. The note’s identity can be traced easily, one of the requisites
of hidden treasure is lacking that is that the owner appears to
Q: Is a trespasser entitled to get a share? be unknown.
A: No. he cannot be allowed to benefit for his unlawful act. Q. How about the Yamashita treasure?
RA 8492 (National Museum Act of 1998) – permits are A. Under PD 172, 25% is granted to the finder and 75% will
required for the discovery / recovery of hidden treasures, belong to the State.
shipwrecks / sunken vessels recovery exclusively for materials
of cultural and historical values such as:
a. Arts
b. Archeological artifacts
c. Ecofacts
d. Relics
e. Other materials embodying the cultural and natural
heritage of the Filipino nation as well as those of
foreign origin
CHAPTER 3
DENR AO 2002-04 as amended by DENR AO 2004-2003, in RIGHT OF ACCESSION
relation to EO 35 – permits for treasures which are not of
cultural and historical value whether or not hunting is to be GENERAL PROVISIONS
conducted on private or governmental land and upon
discovery is turned over to National Museum for Art. 440. The ownership of property gives the right by
determination of whether it has cultural or historical value – accession to everything which is produced thereby, or which
if affirmative, items will be given to National Museum; if is incorporated or attached thereto, either naturally or
negative, turned over to an oversight committee of DENR artificially. (353)
Q: What is the rule regarding the sharing of the net SECTION 1. - Right of Accession with Respect to
proceeds? What is Produced by Property
A:
2. Accession natural Civil fruits are the rents of buildings, the price of leases of
i. alluvium lands and other property and the amount of perpetual or
ii. avulsion life annuities or other similar income. (355a)
iii.change of course of rivers
iv.formation of islands
b. Personal property Art. 443. He who receives the fruits has the obligation to pay
1. Adjunction or conjunction the expenses made by a third person in their production,
i. engraftment gathering, and preservation. (356)
ii.attachment
iii. weaving
iv.painting
v.writing Art. 444. Only such as are manifest or born are considered
as natural or industrial fruits.
2. Mixture
3. specification With respect to animals, it is sufficient that they are in the
womb of the mother, although unborn. (357)
Q: Is accession a mode of acquiring ownership?
Art. 448. The owner of the land on which anything has been
built, sown or planted in good faith, shall have the right to
Art. 447. The owner of the land who makes thereon,
appropriate as his own the works, sowing or planting, after
personally or through another, plantings, constructions or
payment of the indemnity provided for in Articles 546 and
works with the materials of another, shall pay their value; 548, or to oblige the one who built or planted to pay the
and, if he acted in bad faith, he shall also be obliged to the
price of the land, and the one who sowed, the proper rent.
reparation of damages. The owner of the materials shall
However, the builder or planter cannot be obliged to buy
have the right to remove them only in case he can do so the land if its value is considerably more than that of the
without injury to the work constructed, or without the building or trees. In such case, he shall pay reasonable rent,
plantings, constructions or works being destroyed.
if the owner of the land does not choose to appropriate the
However, if the landowner acted in bad faith, the owner of
building or trees after proper indemnity. The parties shall
the materials may remove them in any event, with a right to agree upon the terms of the lease and in case of
be indemnified for damages. (360a)
disagreement, the court shall fix the terms thereof. (361a)
Q: What is GOOD FAITH?
BUILDER, PLANTER, SOWER IN GOOD FAITH
A: Not aware that there exists in his title or mode of
Q: What is the rule when B/P/S is in good faith?
acquisition any flaw which invalidates it. If owner of the land
believes that he is the owner of the materials or owner of the A:
materials thought he is thought he is the owner of the land a. Land Owner may appropriate after indemnifying
B/P/S with right of retention
Q: What is BAD FAITH?
b. Oblige b/p to pay price of land and sower to pay rent
(value of the land must not be greater than value of
A: Possesses in any case contrary to the foregoing. The
accession)
landowner knows from the start that he is not the owner of
c. B/P/S will be reimbursed for necessary and useful
materials or the owner of the materials knew from the start
expenses
that his materials are used and did not oppose.
Q: What if the value of the land is greater than the value of
Note that good faith is always presumed; and upon him who
accession?
alleges bad faith on the part of the possessor rests the
burden of proof.
A: Expenses incurred for the greater utility or productivity or Art. 452. The builder, planter or sower in bad faith is
for enhancement. entitled to reimbursement for the necessary expenses of
preservation of the land. (n)
Q: What are LUXURIOUS EXPENSES?
BUILDER, PLANTER, SOWER IN BAD FAITH
A: Those which you do not need.
Q: What are the rights of a land owner when the builder,
planter, or sower is in bad faith?
Art. 453. If there was bad faith, not only on the part of the Q: What are the essential elements of accretion?
person who built, planted or sowed on the land of another,
but also on the part of the owner of such land, the rights of A:
one and the other shall be the same as though both had 1. deposit of soil or sediment be gradual and imperceptible
acted in good faith. 2. it be the result of the action of the waters of the river (or
sea, if from the sea deposit pertains to the state)
It is understood that there is bad faith on the part of the 3. the land where accretion takes place is the adjacent of
landowner whenever the act was done with his knowledge the banks of river
and without opposition on his part. (354a)
Q: Who is the Riparian owner?
A:
1. to offset his loss for possible erosion of his estate due to
Art. 455. If the materials, plants or seeds belong to a third the current of the river
person who has not acted in bad faith, the owner of the 2. to compensate for his sufferings or burdens arising from
land shall answer subsidiarily for their value and only in the the subjection of his land to encumbrances and legal
event that the one who made use of them has no property easements
with which to pay. 3. in the interest of agriculture it is more practical to give it
to one who is in best position to cultivate it
This provision shall not apply if the owner makes use of the
right granted by article 450. If the owner of the materials, Q: The general rule is that an alluvion is automatically
plants or seeds has been paid by the builder, planter or owned by the riparian owner from the moment the soil
sower, the latter may demand from the landowner the deposit can be seen. Does he have to register it?
value of the materials and labor. (365a)
A: Yes, the additional area does not automatically become
registered land. The riparian owner must register the
additional area.
Art. 456. In the cases regulated in the preceding articles,
Q: What is the effect of failure to register?
good faith does not necessarily exclude negligence, which
gives right to damages under article 2176. (n)
A: Failure to register the acquired alluvial deposit by
accretion subjects such accretion to acquisition thru
prescription by third persons.
Art. 457. To the owners of lands adjoining the banks of Q: What is the rule regarding the land caused by special
rivers belong the accretion which they gradually receive works (e.g. dikes) expressly intended by him to bring about
from the effects of the current of the waters. (336) accretion (e.g. for reclamation purposes) and not to protect
his property from destructive force of the water of the
ACCRETION river?
Note that when the sea moves towards the estate and the
tide invades it, the same becomes a foreshore land which
consequently becomes part of the public domain.
Art. 460. Trees uprooted and carried away by the current of
the waters belong to the owner of the land upon which they
may be cast, if the owners do not claim them within six
Art. 459. Whenever the current of a river, creek or torrent months. If such owners claim them, they shall pay the
segregates from an estate on its bank a known portion of expenses incurred in gathering them or putting them in a
land and transfers it to another estate, the owner of the safe place. (369a)
land to which the segregated portion belonged retains the
ownership of it, provided that he removes the same within
two years. (368a)
Trees uprooted are movable and must be claimed within 6
months. The claim does not require actual recovery, so even
after 6 months they may claim but not beyond 4 years
AVULSION OR DELAYED ACCESSION
Q: What is the basis of 4 years?
Q: What is Avulsion?
A: It is the prescriptive period for acquiring movables.
A: Transfer of known portion of land from one tenement to
another by the force of the current. The portion of land must
be such that it can be identified as coming from definite
tenement. Art. 461. River beds which are abandoned through the
natural change in the course of the waters ipso facto belong
Note that the owner of the land which had segregated to the owners whose lands are occupied by the new course
retains his ownership over the land provided he removes the in proportion to the area lost. However, the owners of the
same from where it was annexed within two years from the lands adjoining the old bed shall have the right to acquire
time it was segregated from its source and annexed to the same by paying the value thereof, which value shall not
another tenement. exceed the value of the area occupied by the new bed.
(370a)
Even if claim was made in 2 years, but he still failed to
remove it, he can no longer remove it after the lapse of 2 The owner of the invaded lad becomes the owner of the old
years – claim is not equal to removal (actual/ physical). It is river bed in proportion to the area lost. The automatic
only possible if there is an agreement to pay the other ownership is granted by law.
riparian owner the segregated portion; otherwise there must
be physical and actual removal. However, this article does not apply if the river has breached
out and created a new course without abandoning the
Q: Differentiate alluvium and avulsion? original river bed. Dried up river for lack of flowing waters are
It does not apply to cases where the river simply dries up A: It is the process by virtue of which 2 movable things
because there are no persons whose lands are occupied by belonging to different owners are, without bad faith, united
the waters of the river. in such a way that they form a single object and each of
things united.
Nevertheless, in case the thing united for the use, a. delivery of a thing similar in kind and value and in all
embellishment or perfection of the other, is much more other respects
precious than the principal thing, the owner of the former b. payments of the price as appraised by experts in
may demand its separation, even though the thing to which case the parties cannot stipulate on the price
it has been incorporated may suffer some injury. (378)
If the one who has acted in bad faith is the owner of the Accession by Mixture
principal thing, the owner of the accessory thing shall have a
right to choose between the former paying him its value or Q: What do you mean by confusio?
that the thing belonging to him be separated, even though
for this purpose it be necessary to destroy the principal A: Confusio results when liquids belonging to different
thing; and in both cases, furthermore, there shall be owners got mixed by agreement or by chance.
indemnity for damages.
Q: What do you mean by commixtio?
If either one of the owners has made the incorporation with
the knowledge and without the objection of the other, their A: It results when solid matters are mixed by agreement or by
respective rights shall be determined as though both acted chance:
in good faith. (379a)
1. By agreement- parties may stipulate on the terms and
Applicable Rules conditions and shall be governed by the laws on
obligations and contracts;
a. Owner of ACCESSORY made the incorporation in BF shall 2. Proportionate ownership- when the things mixed or
lose the thing incorporated and have the obligation to confused are not separable without injury, each owner
indemnify the owner of the principal thing for damages shall have the right to the resulting thing proportionate
he may have suffered; to the VALUE of the thing he owns; and
b. Owner of PRINICPAL in BF: owner of the accessory shall 3. By will of the parties- state of co-ownership is created if
have the right to choose between the former paying him mixture is created by chance.
its value or the thing belonging to him be separated,
even if it is necessary to destroy the principal either way Mixture by negligence: co-ownership; damages for the
there will be indemnity for damages; and negligent acts (culpa aquilana)
c. Either the owner of principal or accessory made the
incorporation with the knowledge of the other and Negligence is not equal to BF
raising no objection, both of them shall be regarded
acting in good faith.
Art. 473. If by the will of only one owner, but in good faith,
two things of the same or different kinds are mixed or
Art. 471. Whenever the owner of the material employed confused, the rights of the owners shall be determined by
without his consent has a right to an indemnity, he may the provisions of the preceding article.
demand that this consist in the delivery of a thing equal in
kind and value, and in all other respects, to that employed, If the one who caused the mixture or confusion acted in bad
or else in the price thereof, according to expert appraisal. faith, he shall lose the thing belonging to him thus mixed or
(380) confused, besides being obliged to pay indemnity for the
Rules applicable A:
a. Commixtion – mixture of solids
1. By WILL of ONLY ONE OWNER, but in GF = rights of the b. Confusion – mixture of liquids
owners determined by Provisions of preceding article
(proportion to value/ co-ownership); and Q: What are the rules applicable to determine ownership?
2. One who cause confusion or mixture in BF = shall LOSE
the thing belonging to him plus obligated to pay damages A:
caused to the owner of the other thing
a. By will of both owners or by accident: each owner
Rules on Who is Entitled acquires an interest in portion to the value of his material
b. By one owner in good faith: apply rule (a)
a. Adjunction in Good faith by either owner: c. By one owner in bad faith:
i. He loses his rights to his materials
GR.: Accessory follows the principal ii. He is liable for damages
XPN: If accessory is much precious than the principal, the
owner of the accessory may demand the separation even
if the principal may suffer injury
Art. 474. One who in good faith employs the material of
b. Adjunction in bad faith by the owner of the principal: another in whole or in part in order to make a thing of a
different kind, shall appropriate the thing thus transformed
Option of owner of accessory as his own, indemnifying the owner of the material for its
value.
i. To recover the value plus damages
ii. To demand separation plus damages If the material is more precious than the transformed thing
or is of more value, its owner may, at his option,
c. Adjunction in bad faith by the owner of the accessory: appropriate the new thing to himself, after first paying
indemnity for the value of the work, or demand indemnity
i. He loses the accessory for the material.
ii. He is liable for damages
If in the making of the thing bad faith intervened, the owner
Q. When is separation of things allowed? of the material shall have the right to appropriate the work
to himself without paying anything to the maker, or to
A. Article 469 (WAB) demand of the latter that he indemnify him for the value of
the material and the damages he may have suffered.
1. Separation without injury; However, the owner of the material cannot appropriate the
2. Accessory is more precious than the principal; and work in case the value of the latter, for artistic or scientific
3. Owner of the principal acted in bad faith reasons, is considerably more than that of the material.
(383a)
Q. How is indemnity made?
Rules applicable
A.
G.R.: The accessory follows the principal but the cost will
1. Delivery of a thing equal in kind and value; or depend on the good faitg or bad faith.
2. Payment of its price including the sentimental value.
The OM can appropriate the new thing subject to c. Owner of material in bad faith
payment of the value of the work or demand indemnity
for the material with damages. CHAPTER 3
QUIETING OF TITLE (n)
(2) When MAKER is in BF:
Q: Discuss the remedy of queting title to land.
a. OM can appropriate the work without paying for the
labor or industry exerted A: It is an equitable remedy; a proceeding in equity, the
b. OM may demand for indemnity of the materials plus purpose of which is the declaration of the invalidity of a claim
damages on a title or the invalidity of an interest in property adverse to
that of to the plaintiff. It is the remedy for removal of cloud
OM cannot appropriate the work is the value is more or doubt or uncertainty with respect to title to real property.
than the value of material. (due to artistic or scientific
importance of work) Q: Discuss the nature of the action.
a. Owner of principal (worker) in good faith; Q: What are the requisites for this remedy to apply?
Q: What is the effect of the absence of such title or interest? In an action for quieting of title, plaintiff need not be in
possession of the property – if plaintiff is in possession of the
A: It would warrant the dismissal of the case. property, action is imprescriptible since possession is a
continuing right as is the right to defend such possession;
(2) Documents owner of real property in possession has a continuing right to
(3) There is nothing wrong in the document on its face/ it is invoke a court of equity to remove a cloud that is a
valid; but in reality there may be evidence outside of the continuing menace to his title.
4 corners of the document (extrinsic evidence) which
may declare it null and void; and However, if he is not in possession, the prescriptive period is
(4) Must be valid on its face, need evidence to prove its as follows:
invalidity; prejudicial to plaintiff’s title.
(1) ordinary prescriptive period of 10years;
REQUISITES (2) extraordinary prescriptive period of 30years
1. Legal or equitable title to or interest in the real property NOTE: Where the TCT is null and void, there can be no cloud
subject of the action; over the title.
2. Cloud on title to real property or any interest therein;
and Even if pleading filed is for “Annulment of Title and/or
3. Deed, claim, encumbrance or proceeding claimed to be Reconveyance” but plaintiff is in actual possession, claiming
casting cloud on his title must be shown to be in fact lawful ownership and seeking to remove a cloud, it will be
invalid or inoperative despite its prima facie appearance considered as an action for quieting of title as the allegations,
of validity or legal efficacy not the caption of the pleading, determines the nature of the
action.
Q: Distinguish between legal title and equitable title.
Q: Under what cases does this remedy not apply?
A:
A:
LEGAL TITLE EQUITABLE TITLE
Refers to full or naked Refers to beneficial interest 1. To questions involving interpretation of documents;
ownership registered; in the property and the legal 2. To mere written or oral assertions of claims, EXCEPT:
title of which belongs to a. If made in a legal proceeding
another b. If it is being asserted that the instrument or
entry in plaintiff’s favor is not what it purports
Q: What is a cloud on Title? to be
3. To boundary disputes;
A: It refers to semblance of title which appears in some legal 4. To deed by strangers to the title UNLESS purporting
form but which is in fact unfounded. to convey the property of the plaintiff;
5. To instruments invalid on their face; and
Q: What are the sources of cloud in one’s title? 6. Where the validity of the instrument involves pure
question of law
A:
Q: What is the test to determine if the action to quiet title is
a. Instrument-contract, deed of conveyance, mortgage, proper?
assignment, waiver;
b. Records, claim, encumbrance – attachment, liens, A: The test is the presence of any evidence which is outside of
inscription, adverse claim, lis pendens on a title; and the document itself.
c. Any proceedings like extrajudicial partition.
An ejectment is a quieting process but not one for
determining ownership:
Facultad de Derecho Civil 30
UNIVERSITY OF SANTO TOMAS
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
4. prescription
Plaintiff in possession: File an action to remove cloud, but
cannot file for ejectment because he is already in possession Art. 481. The procedure for the quieting of title or the
removal of a cloud therefrom shall be governed by such
Plaintiff not in possession: Remove cloud plus ejectment for rules of court as the Supreme Court shall promulgated.
the one in possession; action to recover possession –
incidental to action to quiet title
CHAPTER 4
Art. 476. Whenever there is a cloud on title to real property RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING
or any interest therein, by reason of any instrument, record,
claim, encumbrance or proceeding which is apparently valid Art. 482. If a building, wall, column, or any other
or effective but is in truth and in fact invalid, ineffective, construction is in danger of falling, the owner shall be
voidable, or unenforceable, and may be prejudicial to said obliged to demolish it or to execute the necessary work in
title, an action may be brought to remove such cloud or to order to prevent it from falling.
quiet the title. If the proprietor does not comply with this obligation, the
administrative authorities may order the demolition of the
An action may also be brought to prevent a cloud from structure at the expense of the owner, or take measures to
being cast upon title to real property or any interest therein. insure public safety. (389a)
Art. 477. The plaintiff must have legal or equitable title to, Art. 483. Whenever a large tree threatens to fall in such a
or interest in the real property which is the subject matter way as to cause damage to the land or tenement of another
of the action. He need not be in possession of said property. or to travelers over a public or private road, the owner of
the tree shall be obliged to fell and remove it; and should he
Art. 478. There may also be an action to quiet title or not do so, it shall be done at his expense by order of the
remove a cloud therefrom when the contract, instrument or administrative authorities. (390a)
other obligation has been extinguished or has terminated,
or has been barred by extinctive prescription.
Art. 479. The plaintiff must return to the defendant all Title III. - CO-OWNERSHIP
benefits he may have received from the latter, or reimburse
him for expenses that may have redounded to the plaintiff's Art. 484. There is co-ownership whenever the ownership of
benefit. an undivided thing or right belongs to different persons.
NOTE: He who comes to court for equity must do equity. In default of contracts, or of special provisions, co-
Thus, there must be restoration of benefits. If the plaintiff ownership shall be governed by the provisions of this Title.
wins the case, he is obliged to restor to the defendants all (392)
benefits he received from the later. Yet, if he lost, there is no
obligation to restore. Q: What is co-ownership?
Art. 480. The principles of the general law on the quieting of A: It is the state where an undivided thing or right belongs to
title are hereby adopted insofar as they are not in conflict 2 or more persons.
with this Code.
It is the ownership of 2 or more persons over a thing or right
Q: In case of conflict, which law shall prevail? which had not been physically divided between or by and
among them.
A: The Civil Code will prevail over the general law. only in the
absence of a provision in the CC will the general law be It is the right of common dominion which two or more
applied. persons have in a spiritual part of a thing, not materially or
physically divided.
Q: Under what cases will the general law apply?
Q: What are the requisites of co-ownership?
A: Accoridng to Anglo-American Law:
A:
1. Laches;
2. Estoppel; 1. plurality of subjects (different owners)- at least 2 or
3. Res judicata more persons;
A: Co-ownership may arise from different causes. For NOTE: Joint tenancy is not allowed in the Philippines, it
orderliness the law specifies the rules to govern in the impairs legitimes, because when a joint tenant dies, his share
following manner: does not go to his estate but to other surviving tenants; such
will be a betrayal of trust.
a. by contracts;
b. by special provision of law; and Co-ownership is not limited to corporeal things
c. by the provisions of the civil code.
It is explicit from the provision of Art. 484 that co-ownership
Dual Nature of Co-ownership can exist in transmissible rights.
1. Ownership over the ideal share – full ownership over the Thus, it was held that when the lessee died, his leasehold
ideal share although portion is unidentified rights descended upon his children who now own the rights
2. Co-owners exercise joint ownership over the whole – in co-ownership.
observance of mutual respect between co-owners
CO-OWNERSHIP v. JOINT TENANCY
The exercise of the right of legal redemption presupposes the
existence of co-ownership at the time the conveyance is Q: Distinguish between co-ownership and joint tenancy.
made by the co-owner and when it is demanded by the other
co-owner or co-owners; Property already partitioned A:
judicially or extrajudicially where portion belonging to co- Co-ownership Joint ownership
owners has been identified and localized, right of redemption (Tenancy in common) (Joint tenancy)
cannot be invoked. Each co-owner is owner of Each joint owner owns the
his own ideal share. whole thing.
GR: Co-owners cannot claim a definite portion. Each co-owner may dispose Joint owner must obtain the
of his undivided share consent of all the rest to
XPN: Transferees of an undivided portion of the land allowed WITHOUT the other co- dispose of his share.
a co-owner to occupy a definite portion and has not owners consent.
disturbed the same for a period too long to be ignored – Upon the death of a co- Upon the death of a joint
possessor is in a better condition or right (potior est conditio owner, his ideal share goes owner, his share goes to the
possidentis) to his heirs. other joint owners by
accretion.
Q: What are the different sources of co-ownership?
In case of a minor who is a The legal diability of one joint
co-owner, this does not owner benefits the others;
A:
benefit the others for the prescription will not run
purpose of prescription; it against them.
1. Contract-voluntary agreement of the parties; e.g.
continues to run against.
Art. 492(2) of the NCC with respect to the agreement Them.
not to divide a thing for a period not exceeding 10
years and Art. 658 of NCC with respect to easement
Q: Distinguish beteween co-ownership and partnership.
of party wall;
2. Law- e.g. commixtion, confusion, Article 147 of the
A:
Family Code;easement of party walls (Art. 668) or
Co-ownership Partnership (Ordinary)
absolute community of property between spouses
(Art. 88 or 90 of the Family Code); Can exist without a Requires the existence of
contract contracts
3. Occupancy- e.g. when 2 persons catch a wild animal
or fish in the open sea or gather forest products; Art. No legal/juridical personality With legal personality
438(2) of the NCC with respect to hidden treasure; distinct from the co-owners
4. Testamentary disposition or donation inter vivos- Created by contract, will, etc. Created by contract only
e.g. where the testator or donor prohibits partition Prurpose: Common/ Purpose: Profit
Collective enjoyment of the
Facultad de Derecho Civil 32
UNIVERSITY OF SANTO TOMAS
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
thing owned in common 1. Portions belonging to the co-ownership are equal unless
In general, agreement to No term limit set by law. the contrary is proved
exist for more than 10 years 2. Co-owners have different shares, participation in the
is void with respect to the Reason: it will eventually benefits and charges arising from the co-ownership shall
exces years be extinguished – by death be proportional to their respective INTERESTS.
of one of the partners or by
agreement of the partners Art. 485. The share of the co-owners, in the benefits as well
No mutual representation There is mutual as in the charges, shall be proportional to their respective
representation by parties interests. Any stipulation in a contract to the contrary shall
Not dissolved by the death, Dissolved by death or be void.
incapacity of a co-owner incapacity of a partner
A co-owner can dispose of A partner cannot be The portions belonging to the co-owners in the co-
his shgare without the substituted without the ownership shall be presumed equal, unless the contrary is
consent of the other co- consent of the others proved. (393a)
owners
Profits of a co-owner depend Profits may be stipulated Rights of each co-owner as to the thimg owned in common
on his proportinate share upon (e.g. profit-sharing
agreements) 1. To share in the benefits in proportion to his interest,
Co-owner does not represent Partner usually represnets provided the charges are borne in the same proportion.
the co-ownership the partnrships and binds the
partnership a. Contrary stipulation is void as the same is contrary to
the essence of co-ownership;
b. Presumption is what portions are equal unless
Q: Distinguish between co-ownership and conjugal
contrary is proved.
partnership of gains?
Q: State the presumption on the extent of a co-ownership.
A:
A: The law presumes that the portions belonging to co-
Co-ownership Conjugal Partnership of
owners are equal unless the contrary is proved.
Gains
Ordinary contractual Special partnership which
If they have different shares then their participation in the
relationship arises from marriage and
benefits and charges shall be propotional to their respective
agreed upon only before
interest.
marriage
More than 2 persons can Only 2 parties Q: What is the effect of accretion on the property under co-
establish co-ownership onwership?
Sex of parties is immaterial Sex is material; only a man
and woman A: If the property is increased through accretion, the co-
Share is proportionate to Generally, a share of 50/50 owners wuill share proportionately.
interest of parties unless a different percentage
has been agreed upon Q: State the execpttion to Art. 485.
Civil Code Family Code
A: GR: When contribnutions can be established. Their shares
Q: What are the means by which co-ownership is shal be in proportion to their contributions.
extinguished?
EXC: Art. 147 of the FC: Property regimes of unions wothout
A: mariages—A paretner who didi not actually contribute
financially in the acquisition of a property shall be deemd to
1. Consolidation or merger in one co-owner; have constributed jointly and shall receive 50/50 share, if she
2. Acquisitive prescription in favor of a third person or a co- took charge of the care and maintenance of the Family and
owner who repudiates the co-ownership; household.
3. Loss or destruction of property co-owned;
4. Termination of the periodagreed upon by the co-owners; NOTE: There is no co-ownership when rge house and lot
5. Expropriation; and belong to different owners.
6. Judicial or extra-judicial partition.
NOTE:
Q: Does each owner have the right to use the entire A. No. Any of the co-owners can demand partition at any
property? given time.
EJECTMENT
GR: Any co-owner may institute action (in Ejectment) - Remedy of a co-owner who does not want to contribute
includes suit of forcible entry (detentacion) or unlawful
detainer (desahuico) and all kinds of actions for the recovery Art. 489. Repairs for preservation may be made at the will of
of possession (including accion publiciana and reinvidicatory one of the co-owners, but he must, if practicable, first notify
actions) his co-owners of the necessity for such repairs. Expenses to
improve or embellish the thing shall be decided upon by a
XPN: If action is for the benefit of the plaintiff alone, who majority as determined in Article 492. (n)
claims to be the sole owner and entitled to the possession
thereof, other co-owners (indispensable parties) must be Each co-owner has the right to demand contribution from
impleaded. other co-owners for any and all expenses he incurred for the
purpose of preserving the thing or right owned in common.
Action is available even against a co-owner who takes Accordingly, the opposition of other co-owners for making
exclusive possession and asserts exclusive ownership of the necessary repairs does not deprive the co-owner who made
property - the court cannot, in the action filed by a co-owner the advances from demanding contributions from the other
against another co-owner proceed with the actual co-owners as repairs for preservation may be made at the will
partitioning of the co-owned property (extra-judicial partition of only one of the co-owners.
is still necessary to effect physical division).
Q: What if the co-owner failed to comply with the notice
Art. 488. Each co-owner shall have a right to compel the requirement?
other co-owners to contribute to the expenses of
preservation of the thing or right owned in common and to A: Failure does not deprive the co-owner of his right to
the taxes. Any one of the latter may exempt himself from recover the proportionate shares of the other co-owners in
this obligation by renouncing so much of his undivided the expenses; however, the co-owner has the burden of
interest as may be equivalent to his share of the expenses proving the necessity of the repairs and the reasonableness
and taxes. No such waiver shall be made if it is prejudicial to of the expenses.
the co-ownership. (395a)
Q: Why are useful expenses not subject to reimbursement?
4. To compel other co=owners to contribute to expenses
for preservation of the thing or right in common and as A: It is an act of alteration.
to taxes.
Q: What is the rule in case of opposition to repairs?
NOTE:This article refers only to necessary expenses. Useful
expenses and expenses for luxury are not covered. A: If there is opposition and he still proceeded, he is taking
the risk of repairing without reimbursing. Yet, if no repairs are
Acts of preservation may be made at the will of one of the co- done due to the opposition and the property is ruined or
owners, but he must, if practicable, first notify the others if diminished value, oppositors could be liable for damages.
the necessity of such repairs.
Renunciation
GR: A co-owner has the option not to contribute by
renouncing his undivided interest equal to the amount of An option that belongs to a co-owner who may be compelled
contribution. to contribute to the expenses incurred for the purpose of
preserving the property owned in common (Special form of
XPN: If the waiver or renunciation is prejudicial to the co- payment – dation in payment).
ownership.
Q: May a co-owner be compelled to renounce?
Renuniciation is in effect a dacion en pago (dation in
payment) since there is a change of the object of the A: A Co-owner cannot be compelled to renounce – if co-
obligation (sum of money to interest in the co-ownership). owner refuses to pay his share of expenses, the remedy is to
Thus, the consent of the other co-owners is necessary. file an action for collection of sum of money.
A co-owner who does not want to contribute may EXEMPT 1. Manner of contribution specified in the title of
himself by RENOUNCING SO MUCH of his undivided interest ownership;
as may be the equivalent to his share of the expenses for 2. Agreement of parties; and
preservation and taxes. 3. In the absence of agreement – Art490:
Q: What should be the form of necessary? a. Main and party walls, roof and other things used in
common shall be preserved at the expense of all the
A: It must be express renunciation. owners in proportion to the value of the story
belonging to each;
Improvements b. Floor of entrance, front door, common yard and
sanitary works common to all, shall be maintained at
Q: What are improvements? the expense of all owners pro rata;
c. Each owner shall bear the cost of maintaining the
A: They are valuable additions or betterment to enhance the floor of his story; and
value or the convenience of the property. They are designed d. Stairs from the entrance to the first story – all
for the comfort of the occupants/ owners pro rata (except owner of ground floor;
reason: no need for him to use the stairs)
To improve means to add something new and good to the Stairs from the first to second story – expense of all
thing which enhances its value. except the owner of ground floor and first floor.
(1) The main and party walls, the roof and the other things A: It is an interest in real property consisting of a separate
used in common, shall be preserved at the expense of all the interest in a unit in a residential, industrial or commercial
owners in proportion to the value of the story belonging to building and an undivided interest in common directly or
each; indirectly, in the land on which it is located and in other
(2) Each owner shall bear the cost of maintaining the floor of common areas of the building.
his story; the floor of the entrance, front door, common
yard and sanitary works common to all, shall be maintained Q: What are common areas?
at the expense of all the owners pro rata;
(3) The stairs from the entrance to the first story shall be A: They refer to the entire project excepting all units
maintained at the expense of all the owners pro rata, with separately granted or held or reserved.
A: It is part of condominium project intended for any type of Notice of assessment of condominium is to be registered with
independent use or ownership, including one or more rooms the Registry of Deeds of the city or province where such
or spaces located in one or more floors in a building or condominium is located.
buildings and such accessories as may be appended thereto.
Lien is superior to all other liens registered subsequent to the
Nature of ownership in condominium projects registration of notice of assessment EXCEPT real property tax
lien.
1. Condominium unit is owned separately and
individually by the unit owner
2. Land and common areas – co-owned
Reason: Unit owner will become part of the Art. 492. For the administration and better enjoyment of the
association (pays association dues) thing owned in common, the resolutions of the majority of
the co-owners shall be binding.
a. Land and common areas are held by owners of
the separate units as co-owners – co-owners There shall be no majority unless the resolution is approved
with respect to the undivided interest in the by the co-owners who represent the controlling interest in
land and common areas the object of the co-ownership.
b. Land and other common areas are held by the
condominium corporation – owners of the Should there be no majority, or should the resolution of the
individual units are automatically considered majority be seriously prejudicial to those interested in the
members or shareholders of the corporation property owned in common, the court, at the instance of an
(reason: undivided interest in the common areas interested party, shall order such measures as it may deem
or the shareholding in the common areas is proper, including the appointment of an administrator.
inseparable from the unit to which it is only an
appurtenant) Whenever a part of the thing belongs exclusively to one of
the co-owners, and the remainder is owned in common, the
Rules on expenses on common areas preceding provision shall apply only to the part owned in
common. (398)
Owner of project is required by law, prior to conveyance of
any condominium to register a declaration of restrictions Acts requiring Unanimous Consent
relating to such project (restrictions is considered a lien upon
each condominium in the project and shall inure to and bind Q: What are the acts requiring unanimous consent?
all condominium owners in the project).
A:
Restrictions may be:
1. Encumbrance as co-owners will be prejudiced; e.g.
1. For maintenance of insurance policies insuring mortgage and foreclosure;
condominium owners against loss by fire, casualty, 2. Disposition as no one may dispose a thing which he does
liability, workmen’s compensation and other not own; and
insurable risks and for bonding of the members of 3. Acts of alteration.
any management body;
2. Provisions for maintenance, utility, gardening and Q: Distinguish between acts of alteration and acts of
other services benefitting the common areas, for the administration?
employment of personnel necessary for the
operation of the building and legal, accounting and A:
other professional and technical services;
3. For purchase of materials, supplies and the like Acts of Alteration Acts of Administration
needed by the common areas;
4. For payment of taxes and special assessments which Act by virtue of which a co- Improvement or
would be a lien upon the entire project or common owner, in opposition to the embellishment of the thing
areas and for the discharge of any encumbrance
express agreement, if there is owned in common for the
levied against the entire project or the common
areas; and any, or in default thereof, to purpose of better enjoyment
the tacit agreement of all the (IME):
Acts made without the Q: What is the liability of a co-owner for alteration made
consent of all co-owners are Reason for majority consent: without the majority consent?
illegal and invalid; No alienation
A: The co-owner who makes the alteration without the
Remedy: express or implied consent of all co-owners shall:
6. To protect against acts of majority which are prejudicial Q: What is the effect of sale of conjugal property without
to the minority the consent of the other spouse?
A co-owner has absolute ownership over his undivided share A: It shall be void. The Conjugal Partnership of Gains under
in the common property. Thus, he can alienate his share to the FC is governed suppletorily only by the rules on
third persons even without the consent of other co-owners; partnership.
may validly lease his undivided interest to a third party
independently of other co-owners Q: What is the effect of sale of community property without
the consent of the other spouse?
Ideal share of co-owner in common not in whole property A: It is void. The absolute community is a form of co-
ownership but Art. 493 does not apply; prior to the
A co-owner has full ownership of his share, fruits & benefits; liquidation of the absolute community, the interest of each
thus, he May alienate, assign, or mortgage, substitute spouse is inchoate, a mere expectancy which constitute
another person in enjoyment of his share, except when neither legal nor equitable estate and does not ripen into title
personal rights are involved (undivided interest). until it appears that there are assets in the community as a
result of the liquidation and settlement.
Mortgage of a common property
Legal Redemption
A co- owner does not lose his part ownership of a co-owned
property where his share is mortgaged by another co-owner Legal Redemption – may be exercised by two or more co-
without former’s knowledge and consent: owners in proportion to the share they respectively have. The
reason for allowing redemption is to minimize co-ownership
1. Share can be attached even if it has not been by reducing the number of participants until the community
concretely determined; is done away with.
2. Not allowed to sell a determinate part because his
right is only a quota or an ideal portion within any Q: What are the requisites for legal redemption?
physical adjudication; and
3. A co-owner of a thing may exercise the RIGHT OF A:
REDEMPTION in case the shares of all the other co-
rd
owners or any of them are sold to a 3 person; if 1. There is co-ownership;
price of alienation is grossly excessive, the 2. One of the co-owners sold his right to a stranger (not
redemption shall pay only a reasonable one a co-owner);
3. Sale is before the partition of the co-owned
Q: What is the effect of alienation or mortgage of undivided property;
share? 4. Right of redemption must be exercised within
30days from knowledge; and
A: The transferee steps into the shoes of the transferor as co- 5. Vendee must be reimbursed for the price of the sale
owner.
Right is granted not only to the co-owner but also to all those
GR: Alienation of entire co-owned property – sale will affect who subsequently acquires their respective shares while the
the portion owned by the co-owner only (reason: nemo dat community subsists. A co-owner has the right of redemption
quod non habet – no one can give what he does not have). not a right of pre-emption to purchase the shares of his co-
Accordingly, the remedy is an action for the partition of the owners.
property under Rule 69 of the Revised Rules of Court.
A donor or testator may prohibit partition for a period A: It is the segregation or division of a property in common to
which shall not exceed twenty years. those to whom it belongs in parts.
Neither shall there be any partition when it is prohibited by It is the right to demand at anytime the partition or
law. segregation of his share in the thing owned in common.
No prescription shall run in favor of a co-owner or co-heir GR: A co-owner cannot acquire exclusive ownership over a
against his co-owners or co-heirs so long as he expressly or common property thru prescription as a co-owner stands as a
impliedly recognizes the co-ownership. (400a) trustee for other co-owners.
Action to request partition will not prescribe as long as the Legal Effects of Partition
co-ownership exists.
1. Co-ownership is terminated; Co-owners are the absolute
GR: No prescription shall run in favor of a co-owner or co-heir and exclusive owners of the share allotted to him –
against his co-owners or co-heirs so long as he expressly or deemed in exclusive possession of the portion allotted
impliedly recognizes the co-ownership. Accoridngly, the even during the entire period that the co-ownership
posession of co-owner is not adverse to the other co-owners. lasted
2. Cannot prejudice the rights of third persons who shall
XPN: If the co-owner repudiates co-ownership. In such case, retain the rights of mortgage, servitude, or any other real
prescription begins to run from the time of repudiation. rights belonging to them before the division was made
3. Personal rights pertaining to third persons against
Q: Cite examples of acts of repudiation. ownership shall also remain in force
4. Mutual accounting shall be rendered by the co-owners
A: with regard to:
a. Benefits and expenses and each co-owner shall pay for
1. Filing of an action to quiet title or recovery of damages cause by reason of his negligence or fraud
ownership;
Q: Will prescription lie? Art. 497. The creditors or assignees of the co-owners may
take part in the division of the thing owned in common and
A: object to its being effected without their concurrence. But
they cannot impugn any partition already executed, unless
GR: prescription does not lie (reason: co-ownership is a form there has been fraud, or in case it was made
of trust and every co-owner is a trustee for the others – notwithstanding a formal opposition presented to prevent
relationship of co-owners is fiduciary in character and it, without prejudice to the right of the debtor or assignor to
attribute; no prescription so long as co-owner expressly or maintain its validity. (403)
impliedly recognized co-ownership).
1. creditors are allowed because they take part in the
XPN: When co-ownership repudiated. partition because they own part of the interests of the
co-owner who made the assignment or alienation
Q: What are the requisites for repudiation? 2. if assignor has fully assigned all his interest in the
community property, he has no more right to intervene
A: in the petition; the assignee will have the right because
1. Co-owner has performed unequivocal acts of repudiation he is the new co-owner
amounting to an ouster of the other co-owners (ex. [1]
(1) there has been fraud perpetrated Art. 501. Every co-owner shall, after partition, be liable for
(2) it was made despite formal opposition thereto defects of title and quality of the portion assigned to each of
the other co-owners. (n)
NOTE: The law does not require co-owners to notify
creditors/ assignees about the partition, prudence dictate After partition, if there are still benefits and expenses
that they be notified. incurred, which had not been settled in the partition
agreement; co-owners shall remain liable therefore and shall
Partition shall not prejudice third persons who shall retain the have mutual obligations:
rights of:
1. account for benefits received
a. mortgage; 2. reimburse expenses incurred by others which are legally
b. servitude; and reimbursable
c. any other real rights belonging to them before 3. indemnify other co-owners for the damages suffered by
partition. them due to the negligence or fraud of the indemnifying
co-owner
8. To exercise legal redemption 4. to warrant defects of title and quality of the portions
assigned to each of them
The co-owner may redeem the shares of all or any other co-
rd
owner if sold to 3 persons.
If the price of the alienation is grossly Title IV. - SOME SPECIAL PROPERTIES
Q: It is said that community property is essentially Art. 502. The following are of public dominion:
indivisible, therefore, what are the remedies of co-owners?
(1) Rivers and their natural beds;
A: (2) Continuous or intermittent waters of springs and brooks
1. Agree on the allotment of entire property to one of them running in their natural beds and the beds themselves;
who in turn will indemnify the others for their respective (3) Waters rising continuously or intermittently on lands of
interests public dominion;
2. Property shall be sold and proceeds distributed to co- (4) Lakes and lagoons formed by Nature on public lands, and
owners their beds;
(5) Rain waters running through ravines or sand beds, which
NOTE: What is prohibited in art 495 and 498 is only PHYSICAL are also of public dominion;
DIVISION, the PROCEEDS can BE DIVIDED. (6) Subterranean waters on public lands;
(7) Waters found within the zone of operation of public
Art. 499. The partition of a thing owned in common shall not works, even if constructed by a contractor;
prejudice third persons, who shall retain the rights of (8) Waters rising continuously or intermittently on lands
mortgage, servitude or any other real rights belonging to belonging to private persons, to the State, to a province, or
Art. 505. Every concession for the use of waters is Art. 515. The owner of a piece of land on which there are
understood to be without prejudice to third persons. (410) defensive works to check waters, or on which, due to a
change of their course, it may be necessary to reconstruct
Art. 506. The right to make use of public waters is such works, shall be obliged, at his election, either to make
extinguished by the lapse of the concession and by non-user the necessary repairs or construction himself, or to permit
for five years. (411a) them to be done, without damage to him, by the owners of
the lands which suffer or are clearly exposed to suffer
SECTION 3. - The Use of Waters of Private Ownership injury. (420)
Art. 507. The owner of a piece of land on which a spring or Art. 516. The provisions of the preceding article are
brook rises, be it continuous or intermittent, may use its applicable to the case in which it may be necessary to clear
waters while they run through the same, but after the a piece of land of matter, whose accumulation or fall may
waters leave the land they shall become public, and their obstruct the course of the waters, to the damage or peril of
use shall be governed by the Special Law of Waters of third persons. (421)
August 3, 1866, and by the Irrigation Law. (412a)
Art. 517. All the owners who participate in the benefits
arising from the works referred to in the two preceding
A: It refers to water above and under the grounds, in the APPROPRIATION OF WATERS
atmosphere, and of the sea within the territorial jurisdiction
of the Philippines. Q: What is appropriation?
Pertinent Provisions A: It is the acquisition of rights over the use of waters or the
taking or diverting of waters from a natural source in the
DECLARATION OF OBJECTIVES AND PRINCIPLES manner and for any purpose allowed by law.
The objectives of this Code are: Q: What are the purposes by which water may be
appropriated?
GR: The State, for reasons of public policy, may declare A: Beneficial use of water is the utilization of water in the
waters not previously appropriated, in whole or in part, right amount during the period that the water is needed for
exempt from appropriation for any or all purposes and, producing the benefits for which the water is appropriated.
thereupon, such waters may not be appropriated for those
purposes. Q: Who will prescribe the standards for “beneficial use”?
Temporary permits may be issued for the appropriation and use of water XPN: in cases of emergency to save life or property, the
for short periods under special circumstances. construction or repair of the following works shall be
undertaken only after the plans and specifications therefor,
CHAPTER IV as may be required by the Council, are approved by the
UTILIZATION OF WATERS proper government agency; dams for the diversion or storage
of water; structures for the use of water power, installations
Article 32. The utilization of subterranean or ground water shall be
for the utilization of subterranean or ground water and other
coordinated with that of surface waters such as rivers, streams, springs and
lakes, so that a superior right in one not adversely affected by an inferior structures for utilization of water resources.
right in the other.
For this purpose the Council shall promulgate rules and regulations Q: How should water drainage be constructed from a higher
and declare the existence of control areas for the coordinated
to a lower land?
development, protection, and utilization of subterranean or ground water
and surface waters.
Control area is an area of land where subterranean or ground water A: When artificial means are employed to drain water from
and surface water are so interrelated that withdrawal and use in one higher to lower land, the owner of the higher land shall select
similarly affects the other. The boundary of a control area may be altered
the routes and methods of drainage that will cause the
from time to time, as circumstances warrant.
minimum damage to the lower lands, subject to the
Article 33. Water contained in open canals, aqueducts or reservoirs of requirements of just compensation.
private persons may be used by any person for domestic purpose or for
watering plants as long as the water is withdrawn by manual methods Article 47. When the use, conveyance or storage of waters results in
without checking the stream or damaging the canal, aqueduct or reservoir; damage to another, the person responsible for the damage shall pay
Provided, That this right may be restricted by the owner should it result in compensation.
loss or injury to him.
Article 48. When a water resources project interferes with the access of
Article 34. A water permittee or appropriator may use any watercourse to landowner to a portion of his property or with the conveyance of irrigation
convey water to another point in the watercourse for the purpose stated in or drainage water, the person or agency constructing the project shall bear
a permit and such water may be diverted or recaptured at that point by the cost of construction and maintenance of the bridges, flumes and other
said permittee in the same amount less allowance for normal losses in structures necessary for maintaining access, irrigation, or drainage, in
transit. addition to paying compensation for land and incidental damages.
Article 35. Works for the storage, diversion, distribution and utilization of
water resources shall contain adequate provision for the prevention and CHAPTER V
control of diseases that may be induced or spread by such works when CONTROL OF WATERS
required by the Council.
Article 53. To promote the best interest and the coordinated protection of
Q: State the rule as to the reuse of water waste. flood plain lands, the Secretary of Public Works, Transportation and
Communications may declare flood control areas and promulgate
guidelines for governing flood plain management plans in these areas.
A: When the reuse of waste water is feasible, it shall be
limited as much as possible, to such uses other than direct Article 54. In declared flood control areas, rules and regulations may be
human consumption. No person or agency shall distribute promulgated to prohibit or control activities that may damage or cause
deterioration or lakes and dikes, obstruct the flow of water, change the
such water for public consumption until it is demonstrated
natural flow of the river, increase flood losses or aggravate flood problems.
that such consumption will not adversely affect the health
and safety of the public. Article 55. The government may construct necessary flood control
structures in declared flood control areas, and for this purpose it shall have
Article 37. In the construction and operation of hydraulic works, due a legal easement as wide as may be needed along and adjacent to the river
consideration shall be given to the preservation of scenic places and bank and outside of the bed or channel of the river.
historical relics and, in addition to the provisions of existing laws, no works
that would required the destruction or removal of such places or relics shall Article 56. River beds, sand bars and tidal flats may not be cultivated except
be undertaken without showing that the distribution or removal is upon prior permission from the Secretary of the Department of Public
necessary and unaviodable. Works, Transportation and Communication and such permission shall not
be granted where such cultivation obstructs the flow of water or increase
flood levels so as to cause damage to other areas.
Q: Who has the authority to construct dams, bridges or
other structures across of which may interfere with the flow Article 57. Any person may erect levees or revetments to protect his
of navigable or floatable waterways? property from flood, encroachment by the river or change in the course of
the river, provided that such constructions does not cause damage to the
property of another.
A:
Article 63. The operator of a dam for the storage of water may be required Article 74. Swamps and marshes which are owned by the State and which
to employ an engineer possessing qualifications prescribed for the proper primary value for waterfowl propagation or other wildlife purposes may be
operations, maintenance and administration of the dam. reserved and protected from drainage operation and development.
Article 64. The Council shall approve the manner, location, depth, and Article 75. No person shall, without prior permission from the National
spacing in which borings for subterranean or ground water may be made, Pollution Control Commission, build any works that may produce
determine the requirements for the registration of every boring or dangerous or noxious substances or perform any act which may result in
alteration to existing borings as well as other control measures for the the introduction of sewage, industrial waste, or any pollutant into any
exploitation of subterranean or ground water resources, and in source of water supply.
coordination with the Professional Regulation Commission prescribe the
qualifications of those who would drill such borings. Water pollution is the impairment of the quality of water beyond a certain
No person shall drill a well without prior permission from the Council. standard. This standard may vary according to the use of the water and
shall be set by the National Pollution Control Commission.
Article 65. Water from one river basin may be transferred to another river
basin only with approval of the Council. In considering any request for such Article 76. The establishment of cemeteries and waste disposal areas that
transfer, the Council shall take into account the full costs of the transfer, may affect the source of a water supply or a reservoir for domestic or
the benefits that would accrue to the basin of origin without the transfer, municipal use shall be subject to the rules and regulations promulgated by
the benefits would accrue to the receiving basin on account of the transfer, the Department of Health.
alternative schemes for supplying water to the receiving basin, and other
relevant factors. Article 77. Tailings from mining operations and sediments from placer
mining shall not be dumped into rivers and waterways without prior
permission from the Council upon recommendation by the National
CHAPTER VI
Pollution Control Commission.
CONSERVATION AND PROTECTION OF WATERS AND
WATERSHEDS AND RELATED LAND RESOURCES Article 78. The application of agricultural fertilizers and pesticides may be
prohibited or regulated by the National Pollution Control Commission in
Article 66. After due notice and hearing when warranted by circumstances, the areas where such application may cause pollution of a source of water
minimum stream flows for rivers and streams, and minimum water levels supply.
for lakes may be established by the Council under such conditions as may
be necessary for the protection of the environment, control of pollution, CHAPTER VII
navigation, prevention of salt damage, and general public use.
ADMINISTRATION OF WATERS AND ENFORCEMENT OF THE
Article 67. Any watershed or any area of land adjacent to any surface water PROVISIONS OF THIS CODE
or overlying any ground water may declared by the Department of Natural
Resources as protected area Rules and regulations may be promulgated by Article 79. The Administration and enforcement of the provisions of this
such Department to prohibit or control such activities by the owners or Code, including the granting of permits and the imposition of penalties for
Facultad de Derecho Civil 47
UNIVERSITY OF SANTO TOMAS
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
administrative violations hereof, are hereby vested in the Council, and
except in regard to those functions which under this Code are specifically Article 88. The Council shall have original jurisdiction over all disputes to
conferred upon other agencies of the government, the Council is hereby relating to appropriation, utilization, exploitation, development, control,
empowered to make all decisions and determinations provided for in this conservation and protection of waters within the meaning and context of
Code. the provisions of this Code.
Article 80. The Council may deputize any official or agency of the The decisions of the Council on water rights controversies shall be
government to perform any of its specific functions or activities. immediately executory and the enforcement thereof may be suspended
only when a bond, in a amount fixed by the Council to answer for damages
Article 81. The Council shall provide a continuing program for data occasioned by the suspension or stay of execution, shall have been filed by
collection, research and manpower development needed for the the appealing party, unless the suspension is virtue of an order of a
appropriation, utilization, exploitation, conservation, and protection of the competent court.
water resources of the country.
All dispute shall be decided within sixty (60) days after the parties submit
Article 82. In the implementation of the provisions of this code, the Council the same for decision or resolution.
shall promulgate the necessary rules and regulations which may provide for
penalties consisting of a fine not exceeding One Thousand Pesos The Council shall have the power to issue writs of execution and enforce its
(P1,000.00) and/or suspension or revocation of the water permit or other decisions with the assistance of local or national police agencies.
right to the use of water. Violations of such rules and regulations may be
administratively dealt with by the Council. Article 89. The decisions of the Council on water rights controversies may
be appealed to the Court of First Instance of the province where the subject
Such rules and regulations prescribed by any government agency that matter of the controversy is situated within fifteen (15) days from the date
pertain to the utilization, exploitation, development, control, conservation, the party appealing receives a copy of the decision, on any of the following
or protection of water resources shall, if the Council so requires, be subject grounds; (1) grave abuse of discretion; (2) question of law; and (3)
to its approval. questions of fact and law.
Article 84. The Council and other agencies authorized to enforce this Code
are empowered to enter upon private lands, with previous notice to the
owner, for the purpose of conducting surveys and hydrologic
investigations, and to perform such other acts as are necessary in carrying
out their functions including the power to exercise the right of eminent
domain.
CHAPTER 2
Article 85. No program or project involving the appropriation, utilization,
exploitation, development, control, conservation, or protection of water
MINERALS
resources may be undertaken without prior approval of the Council, except
those which the Council may, in its discretion, exempt. Art. 519. Mining claims and rights and other matters
concerning minerals and mineral lands are governed by
The Council may require consultation with the public prior to the
implementation of certain water resources development projects.
special laws. (427a)
Article 86. When plans and specifications of a hydraulic structure are Q: What are the governing laws for the mineral resources of
submitted for approval, the government agency whose functions embrace the country?
the type of project for which the structure is intended, shall review the
plans and specifications and recommended to the Council proper action
thereon and the latter shall approve the same only when they are A:
inconformity with the requirements of this Code and the rules and 1. RA7942 – Philippine Mining Act of 1995
regulations promulgated by the Council. Notwithstanding such approval, Section 2 – “All mineral resources in public and private
neither the engineer who drew up the plans and specifications of the
hydraulic structure, nor the constructor who built it, shall be relieved of his
lands within the territory and exclusive economic zone of
liability for damages in case of failure thereof by reason of defect in plans the Republic of Philippines are owned by the State”
and specifications, or failure due to defect in construction, within ten (10) 2. RA7076 – People’s Small-Scale Mining Act of 1991
years from the completion of the structure.
Any action recover such damages must be brought within five (5) years
Q: What are minerals?
following such failure.
A: It cover all inorganic substances found in nature, whether
Article 87. The Council or its duly authorized representatives, in the solid, liquid, gaseous r any intermediate state, with the
exercise of its power to investigate and decide cases brought to its
cognizance, shall have the power to administer oaths, compel the
exception of the soil which supports organic life and of
attendance of witnesses by subpoena and the production of relevant ordinary earth, gravel, sand and stone which are used for
documents by subpoena duces tecum. building or construction purposes
Non-compliance of violation of such orders or subpoena and subpoena
duces tecum shall be punished in the same manner as indirect contempt of
Q: What are mineral lands?
an inferior court upon application by the aggrieved party with the proper
Court of First Instance in accordance with the provisions of Rules 71 of the
Rules of the Court.
Q: State the rule on Ownership of Mineral lands and Q: What is a collective mark?
minerals?
A: Any visible sign designated as such in the application for
A: All mineral lands of public domain and all belong to state. registration and capable of distinguishing the origin or any
The disposition, exploitation, development or utilization shall other common characteristic, including the quality of the
be limited to citizens of Philippines, corporation at least 60% goods or services of different enterprises which use the sign
of capital is owned by citizens. under the control of the registered owner of the collective
mark.
Q: What is the Regalian doctrine in relation to the mineral
resources? Q: What is trade name?
A: All minerals belong to the state whether the land covered A: The name of designation identifying or distinguishing an
by torrens system and whether or not it is privately owned. enterprise.
Ownership of mines does not depend upon the ownership of
soil in this country Q: What is the function of a trademark?
Q: What is trade mark of trade name? Q: Discuss the doctrine of secondary meaning.
A: TRADE-MARK of TRADE NAME is a duly registered in the A: Word or phrase originally incapable of exclusive
proper government bureau or office. It pertains to person, appropriation with reference to an article on the market,
corporation or firm registering the same, subject to because geographically or otherwise descriptive, might
provisions of special laws. nevertheless have been used so long and so exclusively by
one producer with reference to his article, that in that trade
Q: What is the effect of registration in the Bureau of and to that branch of the purchasing public, the word or
Trademark? phrase has come to mean that the articles was his product.
The word or phrase should acquire a secondary meaning as to
A: Duly registered in the bureau of trademark under the be exclusively associated with its products and business.
intellectual property office, it shall pertain in ownership to
the person or juridical entity which registered it. Ex. Vigan longganisa cannot be patented, it must be Mang
Ed’s vigan longganisa
Q: What is a mark?
Q: What is the test of dominancy?
A: Any visible sign capable of distinguishing the goods (trade
mark) or services (service mark) of an enterprise and shall A: If the competing trade mark contains the main or essential
include a stamped or marked container of goods. or dominant features of another, and confusion deception is
likely to result infringement.
A: Reputation for competence, honesty and fair dealing. Lure Viewpoints of possession
of a product and place of business arising from name,
reputation, quality and general atmosphere of the business Q: What are the viewpoints of possession?
house.
A:
Q: Is goodwill a real or personal property? a. INCIDENTAL to OWNERSHIP -If you own it, automatically
you have the RIGHT TO POSSESSION
A: It is a special personal property. It is inseparable from the Ex: I own a house, I am entitled to possess it
business to which it is adhering. But, it is transferable with b. INDEPENDENT from OWNERSHIP-Independent and
the right to use the name of the business under which it is separate from ownership. For instance, a lessee of a
conducted. property who is not the owner has a RIGHT OF
POSSESSION to the property for the period of the lease
provided
Ex: I am renting a house, I am entitled to possess it.
Degrees of possession
NOTE: Only things and rights which are susceptible of being 4. Possession WITH JUST TITLE FROM REAL OWNER- Perfect
appropriated may be the object of possession (Art. 530) possession. This is the possession that springs from
ownership
Concept of Possession:
Mere possession cannot defeat the title of a holder of a
1. Implies relation between a person and things registered Torrens Title to real property (Eduarte v. CA)
Kinds of possession NOTE: The owner can subject the property to his own will. He
can dispose the same. On the other hand, a mere possessor
Q: What are the kinds of possession? has limited rights over property. As a matter of fact, he
cannot dispose.
A:
(1) According to name used Art. 525. The possession of things or rights may be had in
a. In own name one of two concepts: either in the concept of owner, or in
b. Name of another
Concepts of possession Art. 527. Good faith is always presumed, and upon him who
alleges bad faith on the part of a possessor rests the burden
Things or rights may be possessed in of proof. (434)
CONCEPT OF AN OWNER -Possession of the possessor Art. 528. Possession acquired in good faith does not lose this
proceeds from the person’s belief or pretension that he is the character except in the case and from the moment facts
owner of the thing as manifested by certain acts of ownership exist which show that the possessor is not unaware that he
and the public believes he is the owner. May ripen into possesses the thing improperly or wrongfully. (435a)
ownership through acquisitive prescription. So long as a
person claims ownership of the property and does not Art. 529. It is presumed that possession continues to be
acknowledge in another a superior right, he is a possessor in enjoyed in the same character in which it was acquired, until
the concept of an owner, even a possessor in bad faith is the contrary is proved. (436)
entitled to acquire ownership of a property by virtue of
extraordinary prescription Possessor in good faith and possessor in bad faith
CONCEPT OF A HOLDER -Possession of the possessor does Q: Who is a possessor in good faith?
not arise from any belief or conviction that he is the owner of
the thing, because the possessor acknowledges the A: He is one who is not aware of any existing flaw or defect in
ownership of thing by another person. his title or mode of acquisition, which flaw or defect renders
it invalid.
NOTE: Lessee, usufructuary, etc. are considered as possessor
in the concept of a holder with respect to the thing itself but Q: What are the requisites to be considered as possessor in
considered in the concept of the owner with respect to their good faith?
right
A:
Where a lease agreement, whether express or implied, is 1. Possessor has a title or mode of acquisition
subsequently entered into by the mortgagor and the 2. Flaw or defect in title or mode which invalidates it
mortgagee after the expiration of the redemption period and 3. Possessor is unaware of the flaw or defect, or believes
the consolidation of title in the name of the latter, a case for that the thing belongs to him
ejectment or unlawful detainer, not a motion for a writ of
possession, is the proper remedy in order to evict from the A person who has no title or mode of acquisition but whose
questioned premises a mortgagor turned lessee. A lessee is a occupation of the land of another is by reason of the latter’s
legitimate possessor of the subject properties and could not tolerance or permission cannot be considered a possessor or
be deprived of its lawful possession by a writ of possession. builder in good faith.
(Bukidnon Doctors’ Hospital, Inc. v. MBTC)
Q: What do you mean by mistake upon a doubtful or
EFFECTS OF POSSESSION IN CONCEPT OF OWNER difficult question of law may be the basis of good faith?
Q: What are the effects of possession in concept of owner? A: It refers to the honest error in the application of the law or
in the interpretation of doubtful or conflicting legal provisions
A: or doctrines and not to ignorance of the law.
1. Exercise acts of ownership as if he is the owner
2. Bring action for protection Q: Are possessors in the concept of a holder considered
3. Ask for registration of his possession possessors in good faith?
4. Entitled to just compensation
5. Can avail of acquisitive prescription A: Possessors in the concept of a holder are not possessors in
good faith. Possessor in good faith presupposes ownership in
Art. 526. He is deemed a possessor in good faith who is not another.
aware that there exists in his title or mode of acquisition
any flaw which invalidates it. Q: Who is a possessor in bad faith?
He is deemed a possessor in bad faith who possesses in any A: He is one who is aware of the flaw or defect in his title or
case contrary to the foregoing. mode of acquisition which renders it invalid.
Q: Is bad faith transmissible? Art. 530. Only things and rights which are susceptible of
being appropriated may be the object of possession. (437)
A: Bad Faith is not transmissible from a person to another,
even an heir is not affected by bad faith of the deceased Q: What are the 2 Kinds of possessor?
predecessor
A:
NOTE: 1. Public – possessor is the government
General Rule: Art3, NCC – Ignorance of the law excuses no 2. Private – private person or entity
one from compliance therewith.
All things which are outside the commerce of man and those
Exception: Possessor’s mistake upon a doubtful or difficult which, by reason of physical impossibility cannot be
subjected to human control, may not be the object of
question of law may serve as the basis of his good faith.
possession
Petitioner is not conversant with the laws because he is not a
Servitudes such as discontinuous easements or non-apparent
lawyer. He proceeded on the well-grounded belief that he
easements are not susceptible of possession since they are
was not violating the prohibition regarding the alienation of
not susceptible of continuous exercise.
the land. (Kasilag v. Roque, 69 Phil 217)
Examples of things and rights which may not be the object
Q: Which is presumed, good faith or bad faith?
of appropriation:
A: Good faith is always presumed
1. Res Communes due to depth, distance or immensity
– sun, stars, moon, ocean
Q: When will the possession in good faith cease?
2. Forces of nature in diffused state unless brought
under human control through science
A: Possession in good faith ceases from the moment defects
3. Property of public dominion
in the title are made known to the possessors by extraneous
4. Discontinuous servitudes
evidence or by suit for recovery by the true owner.
5. Non-apparent servitudes
Rights of the possessor
Q: What are the modes of acquiring possession? Q: What are the 2 Forms of Constructive Delivery involved in
Material Occupation?
A:
1. Material occupation of a thing or the exercise of a right A:
2. By subjecting the thing or right to the action of our will 1. Tradicion brevi manu
3. By proper acts and legal formalities established for the 2. Tradicion constitutum possessorium
acquisition of such right
Q: Which of the modes is an original mode of acquisition? Q: What is tradicion brevi manu?
A: Material occupation of a thing or the exercise of a right A: Possessor who is possessing the thing by a title other than
ownership, continues to possess it under a new title, now of
Q: Which of the modes is considered derivative? ownership.
Q: What are the requisites for acquiring possession? Q: What is the Doctrine of constructive possession?
Q: Differentiate Occupation under Art. 531 and occupation Q: What are the requisites?
under Art. 712.
A:
A: 1. Possessor was in actual possession of a portion or part of
the property
2. Claiming ownership of the whole area
3. Remainder of the area must not be in the adverse
possession of another person
Occupation under Art531 Occupation under Art712 4. Area claimed must be reasonable
Mode of acquiring Mode of acquiring
possession ownership NOTE: Mere planting of a sign or symbol of possession cannot
Applies whether or not Applies only where the justify a Magellan-like claim of dominion over an immense
the property is with an property is without an tract of territory. Application of the doctrine of constructive
owner or not owner possession shall depend, among others, to the size of the
There must be intent to There must be intent to tract in controversy with reference to the portion actually in
possess own or appropriate the possession of the claimant (Lasam v. Director of Lands,
A parcel of land may be A parcel of land cannot 1938, 65 Phil 367)
the object of possession be the object of
occupation The mere fact of declaring uncultivated land for taxation
purposes and visiting it every once in a while, as was done by
Q: What is material occupation? the alleged possessor does not constitute acts of possession
(Ramirez v. Director of Lands, 1934, 60 Phil 114)
A: Actual physical possession or material apprehension
However, if the principal ratified it, possession shall be Q: Is capacity to act necessary for the acquisition of
considered acquired only upon ratification. possession?
Possession is deemed transmitted from the moment of death Q: What are the modes where possession can’t be acquired?
of the decedent and without interruption:
A:
1. If the heir accepts the inheritance- retroactive effect 1. Use of force/intimidation or by violence as long as
from date of death; and there is a possessor who objects thereto;
2. If the heir repudiates- he never possessed the 2. Acts executed clandestinely and without knowledge
inheritance; other legal heirs is in possession or if of the possessor which means that:
none, the state. -acts are not public and unknown to the owner or
possessor.
Art. 534. On who succeeds by hereditary title shall not suffer 3. Stealth; and
the consequences of the wrongful possession of the 4. Acts merely tolerated (permissive use) such as when
decedent, if it is not shown that he was aware of the flaws possession is allowed by the owner not by reason of
affecting it; but the effects of possession in good faith shall duty or obligation but by the impulse of sense of
not benefit him except from the date of the death of the neighborliness or good familiarity with persons.
decedent. (442)
That petitioners illegally entered into and occupied the
GR: The heir will not suffer the consequences of the wrongful property in question, respondents had no right to take the
act of the decedent. law into their own hands and summarily or forcibly eject the
occupants therefrom. The rule of law does not allow the
XPN: Except if it shown that he was aware of the flaws or mighty and privileged to take the law into their own hands to
defects in the possession of his predecessor in interest. enforce their alleged rights. They should go to court and seek
judicial vindication. (Heirs of Pedro Laurora v. Sterling
Q: What is the rationale behind the rule? Technopark III, et al., G.R. No. 146815, April 9, 2003)
A: Bad faith is intransmissible because it is a state of mind Q: What are the acts which do not affect possession?
personal to the person who acted.
A: These acts do not affect possession:
Existence of bad faith on the part of the possessor does not
prejudice his successors-in-interest – bad faith is not 1. Abandonment: no longer interested in possessing,
transmissible from one person to another, not even to an waiver;
heir. Accordingly, only personal knowledge of the flaw in 2. Action for ejectment – unlaqful detainer and
one’s title or mode of acquisition can make him a possessor forcible entry;
in bad faith. Consequently, the effects of possession in good 3. criminal action : trespassing; and
faith shall not benefit the heir except from the date of the 4. possession of squatters : mere tolerance; does not
death of the decedent. affect possession, owner is not ousted of his
property.
Art. 535. Minors and incapacitated persons may acquire the
possession of things; but they need the assistance of their Q: What are the distinctions between abandonment and
legal representatives in order to exercise the rights which tolerance?
from the possession arise in their favor. (443)
A:
Art. 536. In no case may possession be acquired through Abandonment Tolerance
force or intimidation as long as there is a possessor who No longer interested in Allowed by owner by sense
objects thereto. He who believes that he has an action or a possessing, waiver. of neighborliness or good
right to deprive another of the holding of a thing, must familiarity with persons
invoke the aid of the competent court, if the holder should
refuse to deliver the thing. (441a) Recognize and assert right
1. Present or actual possessor shall be preferred; Only the possession acquired and enjoyed in the concept of
2. If there are 2 possessors, the one longer in possession is owner can serve as a title for acquiring dominion.
preferred;
3. If the dates of possession are the same, the one who Mere tax declarations do not vest or prove ownership of the
presents a title; and property in the declarant. Yet, it is also undeniable that the
4. If all of the above are equal, the fact of possession shall payment of realty tax coupled with actual possession in the
be judicially determined, and in the mean time, the thing concept of owner is a positive indication of ownership.
shall be placed in judicial deposit.
PRELIMINARY MANDATORY INJUNCTION
Art. 538 settles only question of possession and such
possession is different from ownership. Q: What is a writ of preliminary mandatory injunction?
Possession may be enjoyed by 2 or more possessors: co- A: It is a writ directing a person to do an act, commanding to
possession, consent of owner give back the land or to respect the possession. It is an
incidental remedy.
Possession as a fact cannot be recognized at the same time in
two different personalities except in the case of co- A provisional remedy granted at any stage of an action prior
possession to judgment or final order, commanding or requiring the
performance of a particular act. Its purpose is to prevent
NOTE: As between lessee and one who was allowed by the further dispossession. This applies to actions for forcible entry
owner to enter the land and construct a house, lessee will be and unlawful detainer.
sustained.
PRELIMINARY PROHIBITORY INJUNCTION
1. Personal property- 4 years in good faith and 8 years Q: What are the presumptions created by law in favor of the
in case of bad faith; possessor?
2. Realty- 10 years for good faith (ordinary
prescription) and 30 years in bad faith (extra- A:
ordinary prescription). 1. Presumption on the continuance of possession;
2. Uninterrupted possession of hereditary property;
Just title 3. Possession with just title;
4. Possession of movables with real property;
Not limited to documents which are sufficient to transfer 5. Exclusive possession of common property;
ownership. It can cover other acts, even verbal acts which are 6. Continuous possession; and
legally sufficient to transmit ownership of property of real 7. Uninterrupted possession.
right:
Q: When is the presumption that a possessor has a just title
i. PERFECT (Just title in possession) – true and valid applicable?
title sufficient to transfer ownership; Titulo Verdadero y
valido A: It only applies when 2 requisites are present:
ii. IMPERFECT (Just title in prescription) – COLORABLE
TITLE: although there is a mode of transferring ownership, 1. He must be in possession; and
nonetheless the grantor is not the owner; must be proved; 2. The possession must be in the concept of an owner
titulo Colorado. and not a mere holder.
PUTATIVE TITLE (Titulo Putativo) Q: What are the reasons for the presumption?
JUST TITLE IN POSSESSION JUST TITLE IN PRESCRIPTION A: When the subject matter is undivided and there are two or
Presumed Must be proved more possessors.
Just title here means titulo Just title means titulo
vardadero y valido (true and colorado (mere colorable In case of partition, each co-possessor shall be deemed to
valid title sufficient to title) have exclusively possessed the part which may be allotted to
transfer ownership him for the entire period that the state of co-possession
lasted.
Art. 542. The possession of real property presumes that of
the movables therein, so long as it is not shown or proved Any interruption in the possession of the whole or part of the
that they should be excluded. (449) thing possessed in common shall be to the prejudice of all the
co-possessors.
Q: What are the effects of Possession in the Concept of
Owner? Upon the partition of the property in common, each one of
the co-owners shall be deemed in possession of that portion
A: allotted upon him from the time partition is made for the
1. Raises a disputable presumption of ownership; entire period the co-possession lasted.
2. Disputable presumption that the possessor has just
title and he cannot be obliged to show it; and This is relevant in computation for purposes of acquisitive
3. Can ripen into ownership through acquisitive prescription.
prescription subject to additional requirements
under Art1118, NCC LEGAL/ CIVIL INTERRUPTION
Q: What is just title? Interruption can include losing the property. It is produced by
judicial summons.
A: Just tile is that which is legally sufficient to transfer
ownership of the thing or the real right to which it relates and Q: What do you mean by judicial summons?
may be proved orally by witnesses as well as through written
documents or evidences. A: It is the service of a copy of a complaint upon the
defendant together with the order of the court requiring the
Article 1131. For the purposes of prescription, just title must latter to answer within a certain period of time, failing in
be proved; it is never presumed. which, default order may be issued; issued so that the court
will acquire jurisdiction over the person of the defendant.
Acquisitive Prescription
Q: When will judicial summons not give rise to interruption?
1. Possession of real property presumes that movables
found therein are possessed by occupying the real A:
property (disputable presumption); 1. When the same is void for lack of legal solemnities;
2. Can be rebutted by evidence e.g. lessee can prove he 2. Plaintiff should desist from the complaint or should allow
owns appliances in the leased apartment; and the proceedings to lapse; and
3. Only movables and immovables – doesn’t include rights, 3. Possessor should be absolved from the complaint.
only corporeal things.
The owner of the thing may, should he so desire, give the GR: Rules are not applicable to trees (reason, accession
possessor in good faith the right to finish the cultivation and industrial applies taking into consideration, good faith and
gathering of the growing fruits, as an indemnity for his part bad faith).
of the expenses of cultivation and the net proceeds; the
possessor in good faith who for any reason whatever should XPN: Trees are being exploited for an industry = industrial
refuse to accept this concession, shall lose the right to be fruits.
indemnified in any other manner. (452a)
Possessor in Bad Faith
GR: Fruits belong to the owner.
XPN: Possessors have a right over the fruits (good faith or bad As to the fruits already received
faith).
The possessor in this case shall not be entitled to fruits. Also,
Possessor in Good Faith he must reimburse owner for fruits actually received. Yet he
has a right to recover expenses for the production, gathering
As to the fruits already received and preservation of the fruits (necessary expenses for
preservation of the land or thing) upon the owner’s receipt of
Possessor is entitled to fruits received by him before his reimbursement.
possession is legally interrupted.
As to the pending fruits
GR: Interruption of possession must be through legal means.
Article 449. He who builds, plants or sows in bad faith on
XPN: Possessor in good faith becomes a possessor in bad the land of another, loses what is built, planted or sown
faith from knowledge that he possesses the thing improperly without right to indemnity.
or wrongly.
He is not entitled to reimbursement of expenses incurred
Q: What is the reckoning point as to the time the fruits are but is entitled to recover necessary expenses. With respect
considered as having been received? to trees, rules on accession industrial apply.
The net harvest shall be proportionately divided between Useful expenses shall only be refunded to possessor in GF.
spenders in accordance with length of possession. The owner Note that, the luxurious expenses shall not be included.
may allow possessor to finish cultivation / gathering and if
refused, the latter shall lose his right to be indemnified. Summary of rules
A: If a person is the present possessor of a property and it is A: Relinquishment of possession in favor of a definite or
established that he had possessed it before, it is presumed specified transferee.
that he was also in possession during the interval period.
Q: What is the rule with respect to the assignor?
Q: When is this principle relevant?
A: Assignor must be in the concept of owner and has capacity
A: It is relevant in cases involving acquisitive prescription to alienate.
Art. 555. A possessor may lose his possession: NOTE: In this case, both possession de facto and de jure are
lost and no action for recovery will be allowed
(1) By the abandonment of the thing;
(2) By an assignment made to another either by onerous or 3.DESTRUCTION or TOTAL LOSS of the thing or because it
gratuitous title; goes out of commerce.
(3) By the destruction or total loss of the thing, or because it
goes out of commerce; Q: When is a property considered lost?
(4) By the possession of another, subject to the provisions of
Article 537, if the new possession has lasted longer than one A: A property is considered lost when it is destroyed
year. But the real right of possession is not lost till after the physically such as when it got totally burned or dismantled to
lapse of ten years. (460a) the extent that it becomes useless and unserviceable.
Q: May real property be abandoned? A: Although the property remains physically intact, it cannot
be recovered anymore.
A: Only personal property may be abandoned, does not apply
to land . Q: What are the 2 kinds of loss?
Art. 556. The possession of movables is not deemed lost so Q: What is the principle of irrenvidicability?
long as they remain under the control of the possessor, even
though for the time being he may not know their A: It contemplates of a situation where personal property is
whereabouts. (461) in the possession of one who acquires and holds in good
faith. The true owner cannot recover possession of movable
Q: What does the law contemplate by the word “control”? acquired in good faith is equivalent to title.
A: Juridical control or right that the movable remains in the Q: What is the exception to this rule?
possessor’s patrimony
A: Except when owner lost it or illegally deprives
Art. 557. The possession of immovables and of real rights is
not deemed lost, or transferred for purposes of prescription Q: What is then the duty of the finder?
to the prejudice of third persons, except in accordance with
the provisions of the Mortgage Law and the Land A:
Registration laws. (462a) a. If owner known, the finder must return
b. If unknown, the finder must deposit the movable with
Art. 558. Acts relating to possession, executed or agreed to the mayor of the city or municipality where the thing was
by one who possesses a thing belonging to another as a found. The mayor is bound to make a public
mere holder to enjoy or keep it, in any character, do not announcement for 2 consecutive weeks. Where no
bind or prejudice the owner, unless he gave said holder owner appears after 6months, the thing will be given to
express authority to do such acts, or ratifies them the finder (if owner claims, reward of 1/10 of the sum or
subsequently. (463) price of thing found must be given to the finder).
Possessor of a property belonging to another and who holds Q: What if the finder does not deposit the thing?
it merely for the purpose of enjoying or keeping it, had placed
the property into the possession of another in any character, A: If finder or third person who acquired the thing
the owner is not bound thereby. subsequent to finder does not deposit the thing, he may be
penalized for the crime of theft. In such case, owner may
Owner can recover possession from subsequent possessor recover without paying indemnity.
except if the owner expressly authorized the holder to do so
or if he ratifies the acts of the holder. NOTE: General Rule: Owner may recover the thing without
paying indemnity
Art. 559. The possession of movable property acquired in Exception: Possessor acquired the property through public
good faith is equivalent to a title. Nevertheless, one who has sale (owner must reimburse the price paid)
lost any movable or has been unlawfully deprived thereof
may recover it from the person in possession of the same.
Q: The owner who lost the thing or was unlawfully deprived
If the possessor of a movable lost or which the owner has cannot recover in what instances?
been unlawfully deprived, has acquired it in good faith at a
public sale, the owner cannot obtain its return without A:
reimbursing the price paid therefor. (464a) 1. Possessor acquired the thing at the merchant’s store or
fairs or markets
Q: What is Title? 2. Possessor acquired the thing by sale under statutory
power of sale or under the order of a court of competent
A: Juridical act which transfers ownership, not a document jurisdiction
Art. 560. Wild animals are possessed only while they are Title VI. - USUFRUCT
under one's control; domesticated or tamed animals are
considered domestic or tame if they retain the habit of CHAPTER 1
returning to the premises of the possessor. (465) USUFRUCT IN GENERAL
Kinds of Animals Art. 562. Usufruct gives a right to enjoy the property of
another with the obligation of preserving its form and
Q: What are the kinds of animals? substance, unless the title constituting it or the law
otherwise provides. (467)
A:
1. Wild – characterized by natural freedom. They are Usufruct in General
possessed only while they are under one’s control. Once
natural freedom is regained, they immediately regain Q: What is usufruct?
their status of res nullius and may be acquired through
occupation. A: It is the right of a person (usufructuary), to enjoy the
property of another (owner) with obligation to returning it at
2. Domesticated or tamed – formerly wild but which have the designated time and preserving its form and substance.
been subdued and retained the habit of returning to the
premises of the possessor or owner. Once they lose the It is a real right vested in a person called a usufructuary,
habit of returning to the premises of the possessor, they whereby he has the right to enjoy the property, including the
become res nullius. fruits, of another called the naked owner, with the obligation
of returning it a designated time and preserving its form and
substance, unless the title constituting it or law provides
otherwise.
Note that in case of domesticated animals, possessor has 20
days counted from occupation by another to reclaim the Extent of usufruct
animal/s.
It is the right to enjoy the property of another temporarily,
3. Domestic or tame – born or reared under the control and including both the jus utendi (right to use) and the jus
care of man. Owner can recover them from present fruendi (right to the fruits).
possessors without need of indemnity. They are not
subject to occupation unless there has been Requisites of a usfruct
abandonment but may be acquired through acquisitive
prescription (4years if good faith). Q: What are the requisites of a usufruct?
It may be constituted on real or personal property, A: It is to preserve the form and substance of the property.
consumable or not, tangible or not, the ownership of which is
vested in another and such right may be enforced against the Q: What do you mean by preservation?
whole world.
A: It means that the property must be used according to its
According to Dean Pineda, it must be duly annotated at the purpose.
back of the title to bind third persons. Otherwise, an innocent
purchaser may acquire the usufruct to the prejudice of the Q: Is a usufruct in favor of an alien or foreigner valid?
usufructuary. Yet, according to Dean Villanueva, it is a real
right whether registered or not. A: Yes. It is valid because title is not vested in the
usufructuary.
It is a real right because it attaches to the property itself and
may be imposed upon whoever subsequently own the right Q: How is usufruct created?
with respect to the property.
A: It is created by:
Besides a usufruct may be constituted either on immovable
and movable properties and as such not all property are 1. Law;
registered. 2. Last will; or
3. Prescription
For convenience it must be registered.
Q: What are the other duties of the usufructuary?
Temporary duration
A:
Even if constituted during the entire life of the usufructuary,
it remains temporary because there is a limit to its life. 1. Duty to make ordinary repairs; and
2. Duty to pay for annual charges, taxes, liens on fruits
Purpose of property during usufruct.
The purpose of a usufruct is to enjoy the benefits and derive Q: Who is a naked owner?
advantages from the object as a consequence of normal use.
A: He is a remainder man, what remains is his right to abuse,
Q: What are the natural characteristics of usufruct? subject to the rights of usufructuary.
A: Those which even if not stipulated are deemed attached to USUFRUCT DISTINGUISHED
the usufruct because they are provided by law. Example: The
obligation to preserve absent any stipulation to the contrary. Since usufruct and its incidents and conditions are so
Once there is a stipulation such stipulation is an incidental. complicated, Filipinos are more inclined in entering into less
complicated contracts such as lease, commodatum, and
Q: What is the rationale of the obligation to preserve the easements.
substance and form?
Q: Distinguish usufruct from ownership?
A:
1. Prevent extraordinary exploitation; A: Ownership has for its attributed the right to enjoy (jus
2. Prevent abuse of property; and utendi, jus fruendi, and jus abutendi), then right to dispose
Q: What are the different kinds of usufruct? a. Over things-if it involves tangible property;
b. Over rights- if it involves intangible property as rights
A: are, but the rights must not be strictly personal or
intransmissible; thus the right to receive support
1. As to comprehensiveness over the fruits; cannot be the subject matter of usufruct.
a. Total-if it covers all the fruits derived; and A usufruct constituted over a right is of the same nature as
b. Partial-if it covers only particular fruits generated. the very right burdened by it.
Example: In a coconut planattion only the leaves are
covered to be used in the manufucture of brook 6. As to preservation of the substance and form of the
sticks not including the fruits. object; and
Art. 863- Both transferor and transferee must be alive or at GR: No form is required. An oral usufruct may even be
least be conceived at the time of the death of the testator. constituted.
Q: What primarily governs the rights and obligations of the XPN: If he is the finder.
usufructuary?
DIVIDENDS
A: The title constituting the usufruct, in default the provisions
of the NCC. Whether in cash or stock are considered civil fruits which
belong to the usufructuary, taking into consideration that a
Q: What if there is conflict between what is provided in the stock dividend and cash dividend can only be declared out of
will and the codal provisions regarding the right granted to a the profits of a corporation.
usufruct?
Q: If dividends are declared from “capital stocks” are they
A: The former will prevail unless the disposition contradicts fruits that are covered by a usufruct?
the mandatory provisions of the NCC.
A: No, it is prohibited by law to declare dividends from capital
The rights and obligations are those provided in contract or stocks. Besides, such declaration is not an earning because it
provision of the will. is not declared out of the profits of a corporation.
In cases of hidden treasure, the usufructuary is considered as Art. 567. Natural or industrial fruits growing at the time the
usufruct begins, belong to the usufructuary.
a stranger. The treasure therefore is not considered as a fruit.
Hence, it is the naked owner who is entitled to the share. If Those growing at the time the usufruct terminates, belong
the usufructuary found it, he shall be entitled to ½ share (as a to the owner.
stranger). However, if a third person found it, the naked
owner is entitled to ½ share. In the preceding cases, the usufructuary, at the beginning of
the usufruct, has no obligation to refund to the owner any
expenses incurred; but the owner shall be obliged to
reimburse at the termination of the usufruct, from the
proceeds of the growing fruits, the ordinary expenses of
CHAPTER 2
cultivation, for seed, and other similar expenses incurred by
RIGHTS OF THE USUFRUCTUARY
the usufructuary.
Q: In general, what are the rights of a usufructuary?
The provisions of this article shall not prejudice the rights of
third persons, acquired either at the beginning or at the
A:
termination of the usufruct. (472)
1. Rights over the fruits;
Rule on ownership of natural and industrial fruits
2. Rights of possession and enjoyment of the property;
3. Lease of the property;
Generally, whateevr is gathered or collected belongs to the
4. Sale or alteration of usufructuary rights.
usufructuary during the usufruct.
Art. 566. The usufructuary shall be entitled to all the
natural, industrial and civil fruits of the property in usufruct.
Facultad de Derecho Civil 69
UNIVERSITY OF SANTO TOMAS
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
Rights of usufructuary to pending natural and industrial
fruits A: If the period of lease is longer than the period of usufruct,
lease will terminate upon termination of usufruct.
1. Fruits growing at the beginning of usufruct- belong to Accordingly, the usufructuary cannot lease or alienate
the usufructuary, who is not bound to refund to the beyond such period. Also, usufructuary has the choice as to
owner the expenses of cultivation and production as the who will rent the property, consent is only required if it is
owner has already taken into consideration value of longer than the usufruct.
fruits in fixing the price/ cause for the usufruct.
Note: If the period of lease is longer than the period of
2. Fruits growing to the termination of usufruct- belong to usufruct, the usufructuary of his heirs and successors shall
the owner but he is bound to reimburse the usufructuary receive only the rents up to the end of the usufruct while the
the ordinary cultivation expenses (including those rentals for the rest of the duration of the lease shall pertain
pertaining to seeds) (Art. 545) out of the fruits received to the owner.
(Art. 443). In other words, the reimbursement shall be
taken from the proceeds of the growing fruits. Art. 569. Civil fruits are deemed to accrue daily, and belong
to the usufructuary in proportion to the time the usufruct
Note: If near the time of termination fruits are already may last. (474)
mature and ready for gathering, but were not gathered due
to the malice and bad faith of the owner before the usufruct Q: State the rule on civil fruits.
end, the fruits nevertheless shall pertain to the usufructuary
by applying the general principles of fairness. A: Civil fruits are deemed to accrue daily; they belong to the
usufructuary in proportion to the time the usufruct may last.
Right of Innocent Third persons
Art. 570. Whenever a usufruct is constituted on the right to
Thus, thus Article shall not prejudice the rights of third receive a rent or periodical pension, whether in money or in
persons, acquired either at the beginning or at the fruits, or in the interest on bonds or securities payable to
termination of the usufruct. bearer, each payment due shall be considered as the
proceeds or fruits of such right.
If trees, plants, or crops had been planted by innocent third
person or possessor in good faith, the expenses and charges Whenever it consists in the enjoyment of benefits accruing
incurred thereof shall be pro-rated between the planter and from a participation in any industrial or commercial
the usufructuary (Art. 545, Dean Pineda). However, it seems enterprise, the date of the distribution of which is not fixed,
that this article should apply (Art. 443, Sen. Tolentino). such benefits shall have the same character.
Note: According to Judge Quiambao, Art. 545 is used to In either case they shall be distributed as civil fruits, and
determine who are entitled to the fruits and Art 443 is use to shall be applied in the manner prescribed in the preceding
determine who should be obliged to pay the charges. article. (475)
Art. 568. If the usufructuary has leased the lands or Usufruct on the right to receive rents or periodical pension
tenements given in usufruct, and the usufruct should expire
before the termination of the lease, he or his heirs and Each payment shall be considered as the proceeds or the
successors shall receive only the proportionate share of the fruits of such right.
rent that must be paid by the lessee. (473)
This rule applies whether payment is in money, in fruits, in
Q: May the usufructuary lease the property held by him? interest on bonds or securities payable to bearer.
A: Usufructuary may lease only if the title constituting the Usufruct in the enjoyment of benefits accruing from a
usufruct does not prohibit the usufructuary from leasing. participation in any industrial or commercial enterprise
If he leases the property he has the: Each payment shall be considered as the proceeds or the
fruits of such right.
a. Right to choose the tenant; and
b. Right to eject the tenant if he violates the lease The benefits shall be considered as civil fruits and shall be
contract. distributed.
Q: What if the period of lease I longer than the period of A problem by Justice Paras
usufruct?
A: It is unfair to give the heir of the usufructuary 80 M for the NOTE: The usufructuary may possess and enjoy the thing in
nd rd
2 and 3 year profits and only 30 million to the naked usufruct, either
owner. If this were so, we would be applying the rule for
industrial or natural fruits, not civil fruits. It is indeed unfair
a. Personally, or
because business is expected to have ist ups and downs.
Thus, considering that the usufruct was supposed to last for b. Through another, unless there is a contrary
10 years (though it lasted only for 5 years), it is fairer to give stipulation.
half of the total profits to the heirs of the usufructaury and to
the naked owner. Q: Who should bring action against a usurper, the naked
owner or the usufructuary?
The rule is so similar if no profits were realized during the first
5 years and was only 7, and the profits came only in the next
A: Naked owner can bring action against usurper of the
5 years.
property; it is him who has the cause of action. The
The rules are subject to stipulation of the parties. usufructuary can only do so if authorized.
Art. 571. The usufructuary shall have the right to enjoy any Aspects of usufruct
increase which the thing in usufruct may acquire through
accession, the servitudes established in its favor, and, in
Q: What are the 2 aspects of usufruct?
general, all the benefits inherent therein. (479)
GR: Usufructuary shall enjoy all benefits inherent in the A: General Rule: the lease executed by the usufructuary
property as the essence of usufruct is the full enjoyment of should terminate at the end of the usufruct or earlier.
jus fruendi (fruits), jus utendi (use).
Except: in case of rural lands where the lease continues for
Art. 572. The usufructuary may personally enjoy the thing in the remainder of the Agricultural year.
usufruct, lease it to another, or alienate his right of usufruct,
even by a gratuitous title; but all the contracts he may enter Q: What happens when the period is beyond the period of
into as such usufructuary shall terminate upon the usufruct?
expiration of the usufruct, saving leases of rural lands, which
shall be considered as subsisting during the agricultural A: The usufructuary may enter into a contract where the
year. (480) period of lease is beyond the period. However, once the
usufruct terminates, the lease should terminate too. At the
Limitations to usufructuary rights option of the owner.
NOTE: There should be a stipulation of the parties allowing Q: What is a consumable property?
the usufructuary to alienate such property then the same is
valid. A: Those which could not be enjoyed without being
consumed, hence could not be returned because form and
Q: Can you constitute a usufruct on an encumbered or substance are not preserved.
mortgaged land?
The usufructuary must pay appraised vaule if they were
A: Yes, this is because the mortgage remains inactive until the appraised when delivered.
bebt is not paid and the mortgage is not for the purpose of
limiting the use of the fruits. If there is no appraisal:
a. he must return the same quantity and quality or
NOTE: Alienation of the usufructuary rights does not involve b. pay current price.
the property itself. When the usufruct terminates, the
transferee has no more right to the property. In addition, This is considered as Imperfect/ Abnormal Usufruct.
usufructuary may also be liable to the naked owner for the Quasi-usufruct is akin to a mutuum or simple loan.
damage caused by the transferee (Art. 590).
Q: Can money be the subject of usufruct?
Art. 573. Whenever the usufruct includes things which,
without being consumed, gradually deteriorate through A: Yes, money can be the subject. The subject is equivalent
wear and tear, the usufructuary shall have the right to make sum or value not the thing itself.
use thereof in accordance with the purpose for which they
are intended, and shall not be obliged to return them at the Q: What will govern the parties?
termination of the usufruct except in their condition at that
time; but he shall be obliged to indemnify the owner for any A:
deterioration they may have suffered by reason of his fraud 1. Title governing it/ stipulations
or negligence. (481)
2. Provision of NCC
Usufruct over non-consumable things which gradually
deteriorate Q: In case of conflict, what shall govern?
The usufruct has the right to use in accordance withb the A: In case of conflict, the stipulations will prevail, the
purpose they intended. provision will only apply in default of provision or stipulations
are contrary to law.
Special usufruct on fruit-bearing trees and shrub Because of thee Regalian Doctrine, only the State may
constitute a usufruct over the woodlands, provided that there
The usufructuary may use dead trunks and those cut-off or was a law allowing such usufruct (Declaration of re-
uprooted by accident, which include force majeure and fo classification).
Because of the obligation to preserve, the usufructuary A timber license is generally required if one desires to gather
cannot cut off the trees. However, if the purpose of the forest products.
usufruct as appearing in the title establishing it is precisely to
make use of its branches and trunks of the trees for special Art. 578. The usufructuary of an action to recover real
purposes, he may cut them off subject to the obligation of property or a real right, or any movable property, has the
replacing them with young trees or new plants. right to bring the action and to oblige the owner thereof to
give him the authority for this purpose and to furnish him
This article cannot apply when the trees are not fruit bearing whatever proof he may have. If in consequence of the
and if the object of the usufruct is not limited to the fruits of enforcement of the action he acquires the thing claimed, the
such trees. usufruct shall be limited to the fruits, the dominion
remaining with the owner. (486)
Q: What are shrubs?
Impractical Usufruct
A: They are woody perennial plants smaller than trees usually
having permanent stems branching from the ground. The Philippine legal system is replete with other modes of
prosecuting cases in behalf of the real party in interest.
Art. 576. If in consequence of a calamity or extraordinary
event, the trees or shrubs shall have disappeared in such If the usufructuary recovered the property he does not
considerable number that it would not be possible or it become the owner thereof. Ownership still belongs to the
would be too burdensome to replace them, the naked owner. Usufruct regains only his usufruct over the
usufructuary may leave the dead, fallen or uprooted trunks property. The usufructuary therefore is entitled to fruits and
at the disposal of the owner, and demand that the latter usufruct over the property.
remove them and clear the land. (484a)
The action may be prosecuted in the name of the
If the object of the replacemet is only slightly burdensome, usufructuary because he is a proper party in interest in case
the usufructuary is obliged to make the replacement. the action is for ejectment as the only issue in such case is
possession. There no need to include the name of the naked
Art. 577. The usufructuary of woodland may enjoy all the owner. Nonetheless, in all other cases, he may file in the
benefits which it may produce according to its nature. name of naked owner or usufructuary. Hence, an action to
recover land may be filed by usufructuary with authority of
If the woodland is a copse or consists of timber for building, naked owner
the usufructuary may do such ordinary cutting or felling as
the owner was in the habit of doing, and in default of this, Usufruct of an action to recover property
he may do so in accordance with the custom of the place, as
to the manner, amount and season. The usufructuary has the right to bring the action and oblige
the owner to give him authority to file action for the purpose
In any case the felling or cutting of trees shall be made in and furnish him proof (Special power of attorney).
such manner as not to prejudice the preservation of the
land. Art. 579. The usufructuary may make on the property held
in usufruct such useful improvements or expenses for mere
In nurseries, the usufructuary may make the necessary pleasure as he may deem proper, provided he does not alter
thinnings in order that the remaining trees may properly its form or substance; but he shall have no right to be
grow. indemnified therefor. He may, however, remove such
improvements, should it be possible to do so without
With the exception of the provisions of the preceding damage to the property. (487)
paragraphs, the usufructuary cannot cut down trees unless
1. Unless there is an express prohibition, the usufructuary Q: What if the damage exceeds the value of the
may construct and make improvements on the property improvements?
as he may deem proper.
2. Limitation: provided he does not alter its form and A: In such case, the usufructuary shall be liable for the
substance; difference as indemnity.
3. Removal: usufructuary may generally remove provided
no injury is made on the principal even against the will of But if the improvements are more than the damage, there is
the naked owner. If he has chosen not to remove he no refund as to the excess.
cannot be compelled to remove them; and
4. Indemnity: No right to be indemnified if the Damage to property
improvements cannot be removed. He may however set-
off the value of the improvements against the amount of If Value of improvement is greater than damage caused, the
damage he had caused to the property. excess will not be refunded to the usufructuary, in the
absence of contrary stipulation (owner not required to pay
Improvements may be registered for the protection of the the amount). There is no indemnity for improvements.
usufructuary
If the improvements could be removed without damage to
If the right of the usufructuary to remove improvements is property, parties may agree to settle the difference.
not registered, an innocent purchaser for value of the
property is not bound to respect the right. Yet, if Value of damage exceeds value of improvement,
difference will be paid by usufructuary as indemnity.
Note: Registration shall be done in the registration
proceedings of the land in usufruct and not independently. Formula
Q: What is the purpose of these requirements? Q: What should be the form of the inventory?
A: To ensure the return of the property in the condition that A: No particular form of inventory is provided for by law,
it was given as usufruct, except in cases of: except when real property wherein the inventory must be in
a. Quasi-usufruct public instrument.
Q: What are the consequences of failure to give security Furthermore, the owner may, if he so prefers, until the
when it is required? usufructuary gives security or is excused from so doing,
retain in his possession the property in usufruct as
A: administrator, subject to the obligation to deliver to the
1. Naked owner may demand that immovables be placed usufructuary the net proceeds thereof, after deducting the
under his administration sums which may be agreed upon or judicially allowed him
2. Demand that the movables be sold ; public bond, for such administration. (494)
instruments of credit payable to order or to bearer be
Q: In the above mentioned instances, may the naked owner Q: In case of causion juratoria, may the usufruct lease the
retain the property? property?
A: Yes, if he so desires with the obligatiob to turn-over to the A: He cannot lease the property, because it means he does
usufructuary the income of fruits of the property after not need it.
deducting the expenses of administration.
NOTE: Delivery of property does not amount to waiver to ask
NOTE: The usufructuary cannot collect credits that had for security afterwards , it is a potestative right, he can still
matured. He cannot enter into possessoon of the property demand for a security
and he cannot mortgage it.
If owner does not want to sell certain artistic article with
Art. 587. If the usufructuary who has not given security sentimental value, he may demand their delivery to him,
claims, by virtue of a promise under oath, the delivery of the subject to his giving a security bond for the payment of legal
furniture necessary for his use, and that he and his family be interest based on appraised value.
allowed to live in a house included in the usufruct, the court
may grant this petition, after due consideration of the facts Art. 588. After the security has been given by the
of the case. usufructuary, he shall have a right to all the proceeds and
benefits from the day on which, in accordance with the title
The same rule shall be observed with respect to constituting the usufruct, he should have commenced to
implements, tools and other movable property necessary receive them. (496)
for an industry or vocation in which he is engaged.
When appropriate security has been given, usufructuary shall
If the owner does not wish that certain articles be sold have a right to all the proceeds and benefits as of the date he
because of their artistic worth or because they have a was supposed to have received them. This retroacts to the
sentimental value, he may demand their delivery to him day when usufructuary should have commenced receiving
upon his giving security for the payment of the legal interest them
on their appraised value. (495)
Art. 589. The usufructuary shall take care of the things
Promise under oath or CAUSION JURATORIA given in usufruct as a good father of a family. (497)
A: A sworn undertaking by the uusfructuary to take good care Q: What degree of diligence is required from the
of property in usufruct and return it upon termination. It usufructuary?
serves as a substitute for the security or bond.
A: The usufructuary has the obligation to take care of things
Q: What are the requisites for a causion juratoria? with diligence of a good father.
Q: What if the property is damaged? Q: Why is there a duty to replace notwithstanding the fact
that such occurrence is a fortuitous event?
A: Damage to property caused through the negligence of
property is demandable right away. The naked owner need A: Because such loss is more or less expected and is natural
not wait for the termination of the usufruct to bring the
proper action. Q: To whom the remains of dead animals pertain?
A: Number of animals kept, feeding or travelling together; if Q: What will consist of the replacement?
one kind (flock)
A: Replacement will consist of young of these animals. If
Q: What is livestock? young animals are more than that to be replaced, excess will
pertain to usufructuary. If there is no young and animals died,
A: Mammalian animals and poultry, the avian animals which there is no liability.
are domesticated and kept or raised in backyards or farms.
Hence if 15 cattle died but only 3 were produced, only 3 must
Art. 590. A usufructuary who alienates or leases his right of be replaced.
usufruct shall answer for any damage which the things in
usufruct may suffer through the fault or negligence of the If 15 died and 15 were produced but only 12 remains because
person who substitutes him. (498) 3 were sold, the usufructuary must still replace the 3, even in
cash, otherwise, he could by his overt act defeat the law.
Usufructuary is liable for damages caused by the lessee;
because he has the choice as to who will rent. Although the law says “each year,” this does not mean that
the computation must be done yearly.
Thus, while the substitute answers to the usufructuary, the
usufructuary is liable to the naked owner. Q: When is there no obligation to make replacement?
Art. 591. If the usufruct be constituted on a flock or herd of A: If all animals had perished:
livestock, the usufructuary shall be obliged to replace with 1. If there is a total loss of animals because of contagious
the young thereof the animals that die each year from diseases or other common event. Provided, that the
natural causes, or are lost due to the rapacity of beasts of usufructuary has no fault
prey. 2. If there is partial loss under the same conditions
If the animals on which the usufruct is constituted should all Since no obligations to replace, it follows even all should
perish, without the fault of the usufructuary, on account of perish, the remains must be delivered to the owner.
Q: What if the partial loss is because of the usufructuary’s Q: May the usufructuary be exempted from doing repairs?
fault, does the usufruct continue on the remainder?
A:
A: Manresa says yes because bad use or abuse does not a. if he is not at fault- yes, but he must surrender the fruits
extinguish the usufruct without prejudice however to the received
right of the naked owner to demand administration by him. b. If he was at fault- no, he is liable in addition to cost of
repairs for damages
Q: What is the rule in case of sterile animals?
NOTE: If the property deteriorates even if repairs was made,
A: Since there are no young which could be produced and the owner is burdened, because usufructuary has already
used as replacement, the rule on usufruct over fungibles done his job
applies.
Art. 593. Extraordinary repairs shall be at the expense of the
Art. 592. The usufructuary is obliged to make the ordinary owner. The usufructuary is obliged to notify the owner
repairs needed by the thing given in usufruct. when the need for such repairs is urgent. (501)
By ordinary repairs are understood such as are required by Art. 594. If the owner should make the extraordinary
the wear and tear due to the natural use of the thing and repairs, he shall have a right to demand of the usufructuary
are indispensable for its preservation. Should the the legal interest on the amount expended for the time that
usufructuary fail to make them after demand by the owner, the usufruct lasts.
the latter may make them at the expense of the
usufructuary. (500) Should he not make them when they are indispensable for
the preservation of the thing, the usufructuary may make
them; but he shall have a right to demand of the owner, at
the termination of the usufruct, the increase in value which
the immovable may have acquired by reason of the repairs.
Ordinary repairs (502a)
A: Repairs needed due to wear and tear suffered by the Q: What are extra-ordinary repairs?
property thru natural use and indispensable for preservation
(both). A: Repairs needed to restore to its good condition a thing or
property which has deteriorated by reason of exceptional
Q: What are the requisites for it to be considered as circumstances whether or nor they are essential to its
ordinary repairs? preservation or those caused by the natural use of the
property but not necessary for its preservation.
A:
a. They are required by normal or natural use Q: Who shall shoulder theses expenses?
b. They are needed for preservation
c. They must have occurred during the usufruct A: At the expense of the owner. But it is the duty of the
d. They must have happened with or without the fault of usufructuary to notify the owner of such needed repairs
the usufructuary. when the same is urgent. If not urgent, there is no duty to
make the notification
Q: During what period is the usufructuary liable?
Q: Can the usufructuary compel the owner to make extra-
A: The usufructuary is liable only for ordinary repairs during ordinary repairs?
the usufruct, thus, those existing at the time the usufruct is
entered into pertains to the owner. A: The usufructuary cannot compel the owner to make
extraordinary repairs. Also, the owner cannot compel the
Q: What if the usufructuary refuses to do the repairs? usufructuary to make repairs, if owner did not execute except
when the provision of title constituting the usufruct so
provided.
Increase in value= value after improvement minus value Rules when taxes are paid by the parties
before improvement
Q: What are the rules when taxes are paid by the parties?
If the usufructuary made the extraordinary repairs which are
indispensable for the preservation of property; he may A:
demand from the owner the resulting increase in the value of 1. If paid by the naked owner- the usufructuary shall pay
the property by reason of repairs done him the proper interest (legal interest or otherwise) on
the sums which may have been paid in that character.
Art. 595. The owner may construct any works and make any The reason is that usufructuary is still enjoying the
improvements of which the immovable in usufruct is property and has been benefited.
susceptible, or make new plantings thereon if it be rural, 2. If advanced by the usufructuary- he shall recover the
provided that such acts do not cause a diminution in the amount thereof at the time termination of the usufruct
value of the usufruct or prejudice the right of the provided they are voluntary if usufructuary was forced to
usufructuary. (503) pay, reimbursement should be made immediately.
Collection Matured Credits Q: What is the liability of the naked owner if the immovable
is attached or is judicially sold?
Q: Can the usufructuary collect demandable credits?
A: If the immovable be attached or sold judicially for the
A: Usufructuary is allowed to collect demandable credits payment of the debt, he owner shall be liable to the
which form part of the usufruct like rentals due but he could usufrheuctuary for whatever the latter may lose or suffer by
not claim such credit if he had not given prior security or reason thereof.
bond.
Q: How is the liability of the naked owner extinguished?
Accordingly, if he usufructuary has given security, collection
can be done without the consent of the naked owner or the A: The naked owner may:
approval of the court. But if the usufructuary has not given
security, or when he is excused, or when there is only caucion a. Constitute a usufruct over an equivalent estate;
juratoria, collection and investment can only be done with b. Payment of a periodical pension; and
the consent or authorization of the naked owner and in c. In any other similar way.
default, the approval of the court.
Q: What is the rule if the usufruct is a universal one?
Ownership of the credit collected
A: If the usufruct is universal and some of which are
If credit is collected, ownership belongs to the naked owner, mortgaged, the more applicable article is Art. 598 with
because matured credit contemplated by the article is that reference to Art. 7598 and 759.
which forms part of the usufruct. But it is subject to the use
of the usufructuary. Thus, the latter will only enjoy the
interest or the civil fruits. Mortgaging of the usufructuary rights
Q: What is the effect of failure to collect due to Since the right is distinct from the thing in usufruct, it may be
usufructuary’s fault or negligence? mortgaged by the usufructuary not the naked owner. In such
a case, it is the usufructuary who should pay his debt. Hence
A: The usufructuary shall be liable if the credit that has the usufructuary may mortgage the usufruct but not the
matured (due and demandable) is not collected through his property.
fault or negligence. However, if the cause if the failure was
the lack of consent of the owner or approval of the court he is Pledge of a movable
not liable, provided the lack or delay of approval was not
attributable to him. Art. 600 also applies, by analogy, to pledge of a movable,
provided that the movable is in the usufructuary’s possession
Q: May the usufructuary invest the money? since the law on pledge provides that it is essential that the
thing pledges be placed in the possession of the creditor or a
A: Yes but if there’s no security there must be an third person by common agreement.
authorization from the owner or from the court.
Q: What are the requisites before a usufruct over a pledged
Art. 600. The usufructuary of a mortgaged immovable shall movable may be constituted?
not be obliged to pay the debt for the security of which the
mortgage was constituted. A:
Should the immovable be attached or sold judicially for the 1. Consent of the pledgee and the pledgor must be
payment of the debt, the owner shall be liable to the reached because there could be a conflict where the
usufructuary for whatever the latter may lose by reason nature of the usufruct entitles the usufructuary to
thereof. (509) the fruits and the nature of the pledge where the
pledgee is entitled to the fruits; and
Extinguishment of usufruct
Art. 602. The expenses, costs and liabilities in suits brought
with regard to the usufruct shall be borne by the Death of the usufructuary, unless contrary intention appears
usufructuary. (512)
GR: Deathextinguishes usufruct.
Q: When does this article apply?
XPN:
A: This article particularly applies only when the usufructuary
has lost the case in a usufruct of an action to recover. a. In the case of multiple uusufruct-death of the last
surviving usufructuary ends the usufruct;
It is applicable only to litigations involving the usufruct b. If there is a period fixed basded pn a number of
directly affecting the rights of the usufructuary. years to elapse before a person would reach a
certain age; and
If litigation involves the defense of the naked ownership it is
chargeable to the naked owner. XPN: Usufruct constituted as upport
1. Right to Usufruct: usufructuary bears costs; and Q: What is the rationale behind such rule?
2. Object held in usufruct: costs borne by naked
owner. A: Usufruct is constituted essentially as a lifetim benefit for
the usufructuary or in consideration of his person.
Q: What is the remedy or indemnity in case of foreclosure of
the property? Q: What is the effect of death of the naked owner?
A: It is a future event which must necessarily come although A: Yes. But if the usufruct is universal, waiver must be as a
it may not be known when. whole.
Q: What is a condition? Merger of the usufruct and ownership in the same person
A: It is an uncertain event which may or may not happen. Q: How does merger take place?
Note: This article applies when the period agreed upon for A: This takes place when the rights of usufruct and ownership
the lifetime of the usufruct has already expired or when the are aqcuired by one and the same person (Art. 1275) who
resolutory condition imposed already fulfilled. becomes the absolute owner thereof either through sale or
succession.
Renunciation of the usufructuary
Total loss of the thing
Q: Who makes the renunciation?
The loss must be total. If the loss is only partial, the usufruct
A: it is made by the usufructuary since he is the one who has continues with the remaining part.
the right he is the only when capable of waiving such right.
Q: What are the instances of total loss?
Q: In what form should the renunciation be made?
A:
A: Since it partakes of a condonation or donation, it can be
made expressly or impliedly, as long as it is done clearly. 1. out of commerce of man;
2. physical total destruction; and
If it is done expressly, it must comply with the forms of 3. Expropriation (legal loss).
donation.
Q: Under what instance is partial loss deemed total?
Q: Is the renunciation an assignment of right?
A: In case of partial loss, the usufruct continues provided that
A: No. It is really abandonment by the usufructuary of his benefit may still be obtained (art 604) but if the purpose will
right and does not require the consent of the naked owner not be obtained it will be deemed as total loss.
but is subject to the rights of the creditors. The creditors can
rescind such renuniation to the extent of their cerdits if done
in fraud of creditors.
Q:What are the other causes of extinguishment of the XPN: Expressly granted only in consideration of the existence
usufruct? of such person; usufruct terminates upon death of the said
person
A:
Example: If Andres gave Boni the land in usufruct to support
1. Annulment; Shine. Shine’s death extinguishes the usufructuary
2. Rescission;
3. Mutual withdrawal; Art. 607. If the usufruct is constituted on immovable
4. Legal causes like a minor attaining the age of property of which a building forms part, and the latter
majority in the case of parental usufruct; and should be destroyed in any manner whatsoever, the
5. Expropriation usufructuary shall have a right to make use of the land and
the materials.
Art. 604. If the thing given in usufruct should be lost only in
part, the right shall continue on the remaining part. (514) The same rule shall be applied if the usufruct is constituted
on a building only and the same should be destroyed. But in
Art. 605. Usufruct cannot be constituted in favor of a town, such a case, if the owner should wish to construct another
corporation, or association for more than fifty years. If it has building, he shall have a right to occupy the land and to
been constituted, and before the expiration of such period make use of the materials, being obliged to pay to the
the town is abandoned, or the corporation or association is usufructuary, during the continuance of the usufruct, the
dissolved, the usufruct shall be extinguished by reason interest upon the sum equivalent to the value of the land
thereof. (515a) and of the materials. (517)
Q: What is the rule regarding usufruct in favor of juridical Usufruct is Constituted on Immovable property of which a
entities? building forms part and latter should be destroyed
A: Lifetime of usufruct cannot exceed 50 yrs. to conform with 1. Usufruct is both over the land and building
the ordinary maximum lifetime of corporations under
corporation law. a. Usufruct on the land continues because land is not lost,
but on building terminated (assumption of total loss)
NOTE: If town is abandoned or corporation is dissolved b. Usufructuary can use the land and materials saved from
before the expiration of the term, usufruct is terminated and building
reverts to the owner resulting in latter’s full ownership c. If owner wants to rebuild the bldg, but usufructuary
refuses, the latter prevails because he has the usufruct
over the land until period expired
Testamentary trust is not restricted by Art 605 2. Usufruct is constituted on building only
A testamentary trust for the establishment of a high school in a. Usufruct on building extinguished (totally destroyed)
a town with the governor of the province as the trustee and b. Usufructuary can make use of materials saved
the town’s people as the beneficiary is not restricted by c. Owner has preferential right to use the land and the
Art.605. said trust can continue to serve purpose of the materials with obligation to pay the usufructuary during
testamentary disposition of the testator. the continuance of the usufructuary, the interest upon
the sum equivalent to the value of the land and materials
Art. 606. A usufruct granted for the time that may elapse d. The naked owner has the preferential right to use the
before a third person attains a certain age, shall subsist for land. Thus, if the naked owner would like to rebuild, but
the number of years specified, even if the third person the usufructuary refuses, the naked owner will prevail.
should die before the period expires, unless such usufruct
Q: Can the usufructuary be compelled to build? A: If usufructuary denies the owner’s claim of considerable
injury, court shall determine the issue of preponderance of
A: No because the insurance company indemnity will be evidence
much less than the cost of the building
Q: Again, what is the effect of bad use of property by
Art. 609. Should the thing in usufruct be expropriated for usufructuary?
public use, the owner shall be obliged either to replace it
with another thing of the same value and of similar A: Bad use is not cause for extinguishment but gives the
conditions, or to pay the usufructuary the legal interest on owner the right to demand the delivery and administration of
the amount of the indemnity for the whole period of the property in usufruct when abuse is considerably prejudicial to
usufruct. If the owner chooses the latter alternative, he shall the owner.
give security for the payment of the interest. (519)
NOTE: Owner cannot alienate right to usufruct while property
Rules in cases of expropriation is under administration. During administration for and in
behalf, the owner is not authorized to sell, alienate because
1. If naked owner alone received the indemnity this right pertains to usufructuary.
a. To replace with equivalent value
b. To pay to the usufructuary legal interest on the just
compensation received It is advisable that the usufructuary should register his
usufructuary rights with proper Registry of Property, if it is a
rd rd
2. If both received separate indemnities really to warn 3 persons of existence. Any 3 person who
deals on the property is bound to respect the recorded
In such case, each owns the indemnity given to him in usufruct.
proportion to their interest in the property
Art. 611. A usufruct constituted in favor of several persons
3. If usufructuary alone received indemnity living at the time of its constitution shall not be
extinguished until death of the last survivor. (521)
Paras: He must give it to the naked owner and compel the
latter to return either the interest or to replace the property. Rules in case of multiple usufruct
He may even deduct the interest himself.
If simultaneous If successive
Art. 610. A usufruct is not extinguished by bad use of the All donees must be alive or at If created by donation:
thing in usufruct; but if the abuse should cause considerable least conceived at the time of Art.756-all donees must be
injury to the owner, the latter may demand that the thing constitution alive or at least be conceived
be delivered to him, binding himself to pay annually to the at the time of the perfection
usufructuary the net proceeds of the same, after deducting Death of the last survivor of donation
the expenses and the compensation which may be allowed among others terminates the
him for its administration. (520) usufruct
If usufruct is testamentary,
Remedy in case abuses of usufructuary causing considerable the Rules on Fidei Commisary
injury to owner substitution under Art. 863
and Art. 869 shall be applied:
1. If due to the abuse or abuses of the usufructuary on the Art. 863- both the transferor
property in usufruct, the owner suffers considerable and transferee must be alive
damages or injuries, he may compel the usufructuary to or at least be conceived at
deliver the thing to him to be able to maintain it and the time of death of the
protect it from destruction or loss testator
2. If due to the abuse or abuses of the usufructuary on the
property in usufruct, but the owner does not suffer Art. 869- applies where the
considerable damages or injuries, usufruct continues and testator leaves to a person
the naked owner cannot demand administration by the whole or part of the
himself. inheritance and to another
the usufruct. If he leaves the
usufruct to various persons
Art. 612. Upon the termination of the usufruct, the thing in Q: What is easement?
usufruct shall be delivered to the owner, without prejudice
to the right of retention pertaining to the usufructuary or his A: An encumbrance imposed upon an immovable for the
heirs for taxes and extraordinary expenses which should be benefit of another immovable belonging to a different owner
reimbursed. After the delivery has been made, the security or for the benefit of a community or one or more persons to
or mortgage shall be cancelled. (522a) whom the encumbered estate does not blong by virtue of
which the owner is obliged to abstain from doing so or to
permit a certain thing to be done on his estate.
Usufruct v. easement
A:
A:It refers to the immovable for which the easement was Discontinuous easements are those which are used at
established and the one who enjoys the benefits of the intervals and depend upon the acts of man.
easement.
Apparent easements are those which are made known and
Q: What is a servient estate? are continually kept in view by external signs that reveal the
use and enjoyment of the same.
A: It is the property subject of an easment, the property
which provides for the benifits. Nonapparent easements are those which show no external
indication of their existence. (532)
Art. 614. Servitudes may also be established for the benefit
of a community, or of one or more persons to whom the Art. 616. Easements are also positive or negative.
encumbered estate does not belong. (531)
A positive easement is one which imposes upon the owner
Q: What is a personal easement? of the servient estate the obligation of allowing something
to be done or of doing it himself, and a negative easement,
A: They are those established for the benefit of persons that which prohibits the owner of the servient estate from
without a dominant immovable estate. It cannot be doing something which he could lawfully do if the easement
transmitted as oppose to real easement. This is also called as did not exist. (533)
easement in gross.
CLASSIFICATION OF EASEMENTS
Characteristics of easement
Q: What are the different classification of easements?
Q: What are the different characteristics of easement?
A:
A:
1. According to party given the benefit;
1. A real right but which will affect third persons only
when registered; a. Real
4. According to purpose of the easement or nature of According to purpose of the easement or nature of
limitation; limitation
a. Positive 1. Positive
b. Negative
Q: What are the obligations of the owner of the servient
5. According to right given; and estate in positive easements?
a. Partial use A:
b. Getting of specific materials a. To allow something to be done in his property;
b. To do it himself.
6. According to source or origin
They are also termed as servitudes of sufferance or intrusion
a. Legal or service because something is done on the servient estate.
b. Voluntary
c. Mixed 2. Negative- here the owner of the servient estate is
prohibited to do something which he could lawfully do
According to party given the benefit were it not for the easement.
1. Real-constituted for the benefit of another immovable They are also called as servitudes of absention or limitation
belonging to a different owner; or restriction.
2. Personal-established for the benefit of one or more
persons or of a community without a dominant According to right given
immovable estate.
1. Partial use
According to the manner they are exercised 2. Getting of specific materials
3. Right to participate in ownership
1. Continuous 4. Right to impede or prevent the neighboring estate
from performing a specific act of ownership.
For an easment to be continuous, it does not require that
they be incessant, it is enough that the use may be incessant. According to source or origin
2. Discontinuous 1. Legal
2. Voluntary
While both continuous and discontinuous easement, as 3. Mixed
easement may be continuous (permanent), their exercise
may be continuous or discontinuous. Example: Right of way. Art. 617. Easements are inseparable from the estate to
which they actively or passively belong. (534)
Q: Is the easement of light and view continuous or a
discontinuous easement? Thus, it can’t be mortgaged. It has an independent juridical
existence because it is a real right.
A: While it is true that to construct a window is an act of man,
still once constructed, the easement remains. Hence, we can Art. 618. Easements are indivisible. If the servient estate is
say that the easement of light and view is a continuous not a divided between two or more persons, the easement is not
disconinuous easement. For indeed while all easements
SECTION 2. - Modes of Acquiring Easements Continuous an apparent easements may either be postive or
negative depending on whether sufferance or abstention is to
Art. 620. Continuous and apparent easements are acquired be made.
either by virtue of a title or by prescription of ten years.
(537a) Q: May the easement of right of way be acquired by
prescription?
Q: How are easements acquired?
A: No because it is disontinuous or intermittent. The
A: limitation on the servient owner’s right of ownership exists,
only when the dominant owner actually crosses or passes
1. If continous and apparent they may be acquired by over the servient estate. Prescription requires that the
title or by prescription; possession be continuous or uninterrupted since the
2. If continuous and non-apparent only by title dominant owner cannot be continually crossing the servient
3. If discontinuous and apparent only by title estate but can do so only at intervals. The easement is
4. If discontinuous and non-apparent only by title. necessarily discontinuous in nature.
The easements under Art. 622 may be acquired by title but Note: Voluntary easements must be registered to bind third
not by prescription because their possession or exercise is persons while legal easements need not be registered.
either not public or it is public but not continuous or
uninterrupted Art. 626. The owner of the dominant estate cannot use the
easement except for the benefit of the immovable originally
Acquisition of easement of right of way by contemplated. Neither can he exercise the easement in any
prescription: other manner than that previously established. (n)
The easement cannot be acquired by prescription, but if the The easement is for the exclsuive benefit of the dominant
greater right of ownership of the property can be acquired by estate originally contemplated and cannot be extended to
prescription, there seems to be no reason why the right of other estates owned by the dominant estate.
way which is a mere encumberance on the property cannot
be similarly acquired. The manner of exercise of the easement cannot be modified
to prevent increase in the burden of the easement to the
Art. 623. The absence of a document or proof showing the servient estate.
origin of an easement which cannot be acquired by
prescription may be cured by a deed of recognition by the If the easement is established in a general manner:it can be
owner of the servient estate or by a final judgment. (540a) used to suit the reasonable needs of the dominant estate.
Art. 625. Upon the establishment of an easement, all the Q: What are the rights of dominant owner?
rights necessary for its use are considered granted. (542)
A:
Q: What is the effect of the principal easement to the 1. to exercise all the rights necessary for the use of the
secondary easements? easement;
2. to make on the servient estate all the works necessary
A: It shall terminate all secondary and accessory easements. for the use an preservation of the servitude;
Rights of the servient owner Q: If the easement is in favor of several dominant estates,
who shall shoulder the expenses?
Q: What are the rights of servient owner?
A: If the easement is in favor of several dominant estates, all
A: the owners shall share the expenses in proportion to their
1. to retain the ownership of the portion of the estate on respective interests.
which the easement is established;
2. to make use of the easement, unless there is an Q: What is the presumption as to benefits?
agreement to the contrary;
3. to change the place or manner of the use of the A: The benefits shall be presumed equal in the absence of any
easement provided it be equally convenient agreement or proof to the contrary.
Obligations of the servient owner Q: May an owner exempt himself from contributing for
expenses?
Q: What are the obligations of servient owner?
A: An owner may exempt himself from contributing to the
A: expenses by renouncing the easement in favor of the others.
1. he cannot impair the use of the easement; Q: Is the servient owner obliged to contribute for expenses?
2. he must contribute to the necessary expenses in case he
uses the easement, unless there is an agreement to the A: The servient owner shall also be obliged to contribute to
contrary the expenses except when there is a stipulation to the
contrary, should he make use of the easement in any manner
Rights of dominant owner to make the necessary works whatsoever. If he bound himself to bear the cost of the work,
he may free himself from the obligation by renouncing his
The rights granted by art. 627 is subject to the following property to the dominant owner
conditions:
Art. 629. The owner of the servient estate cannot impair, in
1. the works which shall be at his expense, are necessary any manner whatsoever, the use of the servitude.
for the use and preservation of the servitude;
2. they do not alter or render the servitude more Nevertheless, if by reason of the place originally assigned, or
burdensome; of the manner established for the use of the easement, the
3. the dominant owner, before making the works, must same should become very inconvenient to the owner of the
notify the servient owner; servient estate, or should prevent him from making any
4. they shall be done at the most convenient time and important works, repairs or improvements thereon, it may
manner so as to cause the least inconvenience to the be changed at his expense, provided he offers another place
servient owner
Facultad de Derecho Civil 94
UNIVERSITY OF SANTO TOMAS
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
or manner equally convenient and in such a way that no (6) By the redemption agreed upon between the owners of
injury is caused thereby to the owner of the dominant the dominant and servient estates. (546a)
estate or to those who may have a right to the use of the
easement. (545) MODES OF EXTINGUISHMENT OF
EASEMENTS
NOTE: The servient owner must abstain from constructing
works or performing any act which will impair, in any manner Q: What are the modes of extinguishment of easements?
whatsoever, the use of the servitude
A:
Right of servient owner to change place or manner of 1. by merger;
easement 2. by non – user for ten years;
3. impossibility of use;
Q: What are the requisites for the exercise of the rights of a 4. by renunciation;
servient owner to change place or manner of easement? 5. by redemption;
6. other causes
A:
1. the place and manner has become very inconvenient to Merger
him from making important works thereon;
2. he offers another place or manner equally convenient; It is enough that the merger be with respect to the portion of
3. no injury is caused by the change to the dominant owner the tenement that is affected by the servitude, or the part for
or to whoever may have a right to use the easement the benefit of which it was established.
Art. 630. The owner of the servient estate retains the Where the merger is temporary or under resolutory
ownership of the portion on which the easement is condition, there is at most a suspension, but nit an
established, and may use the same in such a manner as not extinguishment of the servitude.
to affect the exercise of the easement. (n)
Non- use
NOTE: The servient owner preserves his dominion over the
portion of his estate on which the easement is established; Non-use must be due to voluntary abstentation by the
dominant owner, and not to fortuitous event, because the
He may use the easement subject to the condition that he basis of this cause of extinguishment is a presumptive
does not impair the rights of the dominant owner. renunciation.
Impossibility of use
SECTION 4. - Modes of Extinguishment of Easements The impossibility of use only suspends the servitude until
such time when it can be used again.
Art. 631. Easements are extinguished:
Art. 632. The form or manner of using the easement may
(1) By merger in the same person of the ownership of the prescribe as the easement itself, and in the same way.
dominant and servient estates; (547a)
(2) By nonuser for ten years; with respect to discontinuous
easements, this period shall be computed from the day on Prescription of form or manner of using easement
which they ceased to be used; and, with respect to
continuous easements, from the day on which an act The form or manner of using the easement is different from
contrary to the same took place; the easement itself or the right to exercise it. Both may be
(3) When either or both of the estates fall into such lost by prescription. The mode of the servitude is accidental;
condition that the easement cannot be used; but it shall hence, it does not affect the servitude itself while the
revive if the subsequent condition of the estates or either of servitude is used in one form or another.
them should again permit its use, unless when the use
becomes possible, sufficient time for prescription has Art. 633. If the dominant estate belongs to several persons
elapsed, in accordance with the provisions of the preceding in common, the use of the easement by any one of them
number; prevents prescription with respect to the others. (548)
(4) By the expiration of the term or the fulfillment of the
condition, if the easement is temporary or conditional; Where dominant estate owned in common
(5) By the renunciation of the owner of the dominant estate;
Art. 634. Easements imposed by law have for their object SECTION 2. - Easements Relating to Waters
either public use or the interest of private persons. (549)
Art. 637. Lower estates are obliged to receive the waters
Q: What are legal easements? which naturally and without the intervention of man
descend from the higher estates, as well as the stones or
A: They are easements imposed by law which have for their earth which they carry with them.
object either public use or the interest of private persons. The owner of the lower estate cannot construct works
which will impede this easement; neither can the owner of
Q: What are the kinds of legal easements? the higher estate make works which will increase the
burden. (552)
A:
Repealed by Art. 50 (Water Code):
1. Public legal easement-those for public use;
2. Private legal easement-those for private interest. Article 50. Lower estates are obliged to receive the
waters which naturally and without the intervention of man
Q: What are the different legal easements under the Code? flow from the higher estate, as well as the stone or earth
which they carry with them.
A:
The owner of the lower estate can not construct works
1. Easements relating to waters; which will impede this natural flow, unless he provides an
2. Right of way; alternative method of drainage; neither can the owner of
3. Party wall; the higher estate make works which will increase this
4. Light and view; natural flow.
5. Drainage;
6. Intermidiate distances; Legal easements relating to waters
7. Easement against nuisance; and
8. Lateral and subjacent support. 1. natural drainage;
2. drainage of buildings;
Art. 635. All matters concerning easements established for 3. easement on riparian banks for navigation;
public or communal use shall be governed by the special 4. easement of a dam;
laws and regulations relating thereto, and, in the absence 5. easement for drawing waters or for watering animals
thereof, by the provisions of this Title. (550) 6. easement of aqueduct;
7. easement for the construction of a stop clock or sluice
Art. 636. Easements established by law in the interest of gate
private persons or for private use shall be governed by the
provisions of this Title, without prejudice to the provisions Q: What is a natural drainage of water?
of general or local laws and ordinances for the general
welfare. A: It is a legal easement of natural drainage of lands where
the lower estate as the servient estate would have to receive
These easements may be modified by agreement of the the natural flow of water from the higher estates.
interested parties, whenever the law does not prohibit it or
no injury is suffered by a third person. (551a) Q: What lower estates are obliged to receive?
Duties of the Servient estate (lower estate) A: No since the law is silent and under the law on obligations
and contracts well settled is the rule that obligations arising
The servient estate is obliged to receive the waters naturally from laws cannot be presumed.
and without interventio of man flow from higher estates and
the stone and earth they carry with them Art. 638. The banks of rivers and streams, even in case they
are of private ownership, are subject throughout their entire
Because of this obligation, he cannot construct works that length and within a zone of three meters along their
will impede the easement; or will divert the flow of waters margins, to the easement of public use in the general
and burden other tenements without providing an alternative interest of navigation, floatage, fishing and salvage.
route of drainage.
Estates adjoining the banks of navigable or floatable rivers
Should he cause an obstruction, as when he builds a dike, the are, furthermore, subject to the easement of towpath for
easement may be extinguished by non-user and barred by the exclusive service of river navigation and floatage.
prescription if the action to destroy the dike is brought only
after more than 10 years. If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
Duties of the dominant estate (higher estate)
Repealed by:
He cannot make works which will increase the burden such as
increasing the velocity or speed of the descent. However,he Art. 51 (Water Code)
allowed to make construction beneficial to the servient
estate, such as works designed to prevent or minimize Article 51. The banks of rivers and streams and the shores of
erosion. the seas and lakes throughout their entire length and within a
zone of three (3) meters in urban areas, twenty (20) meters in
If the flow of water is natural and without human agricultural areas and forty (40) meters in forest areas, along
intervention then indemnity is not required under the article their margins are subject to the easement of public use in the
as long as the conditions are complied with. However, if the interest of recreation, navigation, floatage, fishing and
flow of water is the result of overflow from artificial dams or salvage. No person shall be allowed to stay in this zone longer
works done by man and damage is caused, the owner of the than what is necessary for recreation, navigation, floatage,
servient estate shall be entitled to indemnity. fishing or salvage or to build structures of any kind.
Q: May the owner of the servient estate be compelled to Easement of Riparian banks
remove the obstruction caused by the accumulation of the
stones, earth and dirt carried by the water? Q: What are easements of riparian banks?
A: According to De Buen, the owner may be required to A: It is an easement on a riparian property, banks of rivers,
remove the obstruction or allow the owner of the dominant and streams of public use in the interest of fishing, floatage,
estate to remove it, should he refuse he may be held liable and interest of recreation, navigation and salvage
for damages.
1. easement of public use on riparian banks; banks of
According to Sen. Tolentino, since the owner of the servient rivers, streams, shores of seas and lakes (whether
estate is only ibliged to receive the waters thay naturally bank be private or public, whether the river be
flow, he cannot be obliged to clear such course; but he must navigable or not)
allow the owner of the servient estata to remove it. a. fishing,
b. floatage,
NOTE: There is no burden if for other purposes A: It would be deemed as if he has taken the law into his own
hands. Such action would amount to taking of property
Urban areas 3 meters without due process and the dam may be considered as a
Agricultural areas 20 meters private nuisance and it may be demolished.
Forest areas 40 meters
Art. 640. Compulsory easements for drawing water or for
2. easement of tow path on banks of navigable and watering animals can be imposed only for reasons of public
floatable rivers use in favor of a town or village, after payment of the
proper indemnity. (555)
For animals 2 meters
For pedestrians 1 meter Art. 641. Easements for drawing water and for watering
animals carry with them the obligation of the owners of the
Payment of indemnity servient estates to allow passage to persons and animals to
the place where such easements are to be used, and the
There can only be an indemnity if the land is a private one. indemnity shall include this service. (556)
Otherwise, if it is a public land, no right exists. If it is of
private ownership, the proper indemnity shall first be paid NOTE: This includes the accessory easement of passage or
before it is occupied. right of way of persons and animals to the place where the
easement is to be used.
NOTE: This article does not apply to canals.
Q: What are the easements covered by the article?
Art. 639. Whenever for the diversion or taking of water from
a river or brook, or for the use of any other continuous or A:
discontinuous stream, it should be necessary to build a dam, 1. for drawing of animals
and the person who is to construct it is not the owner of the 2. for watering of animals
banks, or lands which must support it, he may establish the 3. easement of right of way
easement of abutment of a dam, after payment of the
proper indemnity. (554) Q: What are the requisites?
A: The right to make water flow thru intervening estates in The purpose should be indicated to determine sufficiency.
order that one may make use of said waters. The purpose may be for anything so long as it is lawful.
This is the right arising from a forced easement by virtue of Sufficiency is a relative term and must not be construed very
which the owner of an estate who desires to avail himself of literally.
water for the use of said estate may make such waters pass
thru the intermediate estate with the obligation of Proposed right of way is the most convenient and
indemnifying the owner of the same and also the owner of the least onerous
the estate to which the water may filter or flow.
The shotest distance is not necessarily that contemplated by
NOTE: The existence of right of way does not include the law.
easement of aqueduct.
Indemnity to the owner of the servient estate
Examples:
1. construction of open canal provided it is not dangerous Owners of the intervening land and owners of lower estates
and not very deep upon which waters may filter or descend.
2. construction of covered or closed canal
3. constructiin with tubes or pipes Q: How is the amount determined?
Q: How would you characterize easement of aqueduct? A: The amount usually depends on the duration and
inconvenience caused.
A: It is considered as continuous and apparent. It is
considered as continuous even though the flow of water may Cannot be imposed on existing building, courtyards,
not be continuous. annexes, out-houses, orchard, or gardens
A: Yes, provided the following are present: Should this easement be established in such a manner that
a. no damage is caused to the aqueduct its use may be continuous for all the needs of the dominant
b. repairs and cleaning do not become impossible estate, establishing a permanent passage, the indemnity
shall consist of the value of the land occupied and the
He can also construct works he may deem necessary to amount of the damage caused to the servient estate.
prevent damage to himself provided he does not impede or
impair the use of the easement; otherwise he shall be liable In case the right of way is limited to the necessary passage
for damages. for the cultivation of the estate surrounded by others and
for the gathering of its crops through the servient estate
Art. 647. One who for the purpose of irrigating or improving without a permanent way, the indemnity shall consist in the
his estate, has to construct a stop lock or sluice gate in the payment of the damage caused by such encumbrance.
bed of the stream from which the water is to be taken, may
demand that the owners of the banks permit its This easement is not compulsory if the isolation of the
construction, after payment of damages, including those immovable is due to the proprietor's own acts. (564a)
caused by the new easement to such owners and to the
other irrigators. (562) Concepts of right of way
Construction of stop lock or sluice gate Q: What are the 2 concepts of right of way?
Requisites for the easement of right of way NOTE: The isolation must not be due to the claimant’s own
act
Q: What are the requisites for this easement?
Ex: When he built enclosing walls
A:
1. The easement must be established at the point least Payment of indemnity
Prejudicial to the servient estate;
2. Claimant must be an Owner of enclosed immovable If the passage is continuous and permanent, the indemnity
or with real right; consists of the value of the land occupied plus the amount of
3. There must be no adequate Outlet to a public damages caused to the servient estate.
highway;
4. The right of way must be absolutely Necessary not If it is temporary, the indemnity consits of the payment of the
mere convenience; damage caused to the servient estate.
5. The isolation must not be Due to the claimant’s own
act; and The use before indemnity is not allowed.
6. There must be payment of proper Indemnity.
Q: Who should be the claimant of the right? In as much as an easement is legal or compulsory (there
being no access in the highway), not a mere voluntary
A: The claimant must be an owner of enclosed immovable or easement. Its existence does not depend on the consent of
with real right to cultivate and use the immovable. the powers.
Q: May a lessee demand such right? Where the certificate of title does not state that the
boundaries thereof have been determined, the only servitude
A: A lessee cannot demand such right unless the lease is which a privaye property is required to recognize in favor of
registered. The lessee should ask the lessor to demand the the government under Sec. 39 of PD.1529 is the easement of
easement from adjoining estates. a public highway, private highway established by law or any
governmental canal or lateral thereof. But in this case, it is
NOTE: The property must be surrounded by immovable necessary that the easement should have been previously
owned by others and there must be no adequate outlet to a established by law which implies that the same should have
public highway. been preexisting at the time of registration in order that the
owner may be compelled to respect it.
Q: Explain: “The right of way must be absolutely necessary.”
Where the easement is not pre-existing and it is soyght to be
A: The owner must show that there is a real, not fictituous or imposed after the land has been registered, proper
artificial necessity for the normal enjoyment of the property. expropriation proceedings should be had and just
Mere convenience is not enough to serve as basis for an compensation paid to the registered owner thereof.
easement of right of way.
Q: May the easement of right of way be acquired by
Q: What if the property is not the shortest way and will not prescription?
cause the least damage to the servient estate?
A: According to Sen. Tolentino, if the right of way is
A: The way which will cause the least damage should be used permanent and has an apparent sign it can be acquired by
even if it will not be the shortest. prescription. Since the land on which the servitude is situated
is susceptible of acquisition by prescritpion why can’t a
The easement of right of way shall be established at the point servitude which is less than ownership.
least prejudicial to the servient estate and where the distance
from the dominant estate to a public highway is the shortest. While others like Justice Paras and JBL Reyes believes that it
In case of conflict, the criterion of least prejudice prevails cannot because it is discontinuous or intermittent. The
over the criterion of shortest distance limitation on the servient owner’s right of ownership exists
only when the dominant owner actually crosses or passes
Q: What does “least prejudicial” mean in determining the
over the servient estate. Prescription requires that the
right of way?
possession be continuous or uninterrupted since the
A: It means it is the shortest way and the one which will dominant owner cannot be continually crossing the servient
cause the least damage to the property to the servient estate estate, but can do so only at intervals.
in favor of the dominant estate.
2. Public- one available to the general public. Art. 652. Whenever a piece of land acquired by sale,
exchange or partition, is surrounded by other estates of the
Proper indemnity vendor, exchanger, or co-owner, he shall be obliged to grant
a right of way without indemnity.
1. If the passege is permanent, that is, its use is
continuous for all the needs of the dominant estate, In case of a simple donation, the donor shall be indemnified
the indemnity is the equivalent of the value of the by the donee for the establishment of the right of way.
land occupied plus the amount of damage caused; (567a)
2. If the passaage is temporary, the use is only for a
certain period of time like: Rules when the land acquired is isolated
a. Limited passage necessary for cultivation; and 1. The isolation was due to the estate of the grantor (seller,
b. Passage of construction materials exchanger, or previous co-owner), he shall be obliged to
grant a right of way without indemnity; and
The indemnity shall consist of the amount of damages 2. However, if the act is simple donation, the donee is
caused. obliged to pay indemnity to the donor for the
establishment of easement of right of way.
Art. 650. The easement of right of way shall be established
at the point least prejudicial to the servient estate, and, Q: What is the reason behind the rule?
insofar as consistent with this rule, where the distance from
the dominant estate to a public highway may be the A: Since the transfer of land was by virtue of the liberality of
shortest. (565) the donor, it would be an abuse of enerosity to require the
donor to grant a right of way without indemnity.
Least prejudice v. shortest distance
Art. 653. In the case of the preceding article, if it is the land
Where the easement may be established on any several of the grantor that becomes isolated, he may demand a
tenements surrounding the dominant estate: right of way after paying a indemnity. However, the donor
shall not be liable for indemnity. (n)
1. The one where the way is the shortest; and
2. The one which will cause the least damage should be Rules when the land of the grantor become isolated
chosen.
1. The grantor may demand a right of way after paying the
But if the 2 circumstances do not concur in a single tenement, proper indemnity; and
the way which shall cause the least prejudice should be used, 2. If the grantor is a donor, he shall not be liable for
even if it will not be the shortest. indemnity. In this case, the liberality must be
reciprocated with liberality.
The criterion of least preejudice must prevail over the
criterion of shortest distance. Nature of easement under Art. 652 and 653
Art. 651. The width of the easement of right of way shall be The easements created are in a sense a voluntary easement
that which is sufficient for the needs of the dominant estate, because its proximate cause of creation is by the will of the
and may accordingly be changed from time to time. (566a) parties in view of the contract entered into. It is of course
compulsory in the sense that it hs to be granted, generally
Width of the pathway without indemnity.
The width of the pathway must be enough for the needs of Q: Andrew sold to Ben a parcel of land isolated by another
the dominant estate and may be accordingly changed from several estates owned by Andrew. Andrew gave an outlet
time to time as the needs of the dominant owner may change thru estate 1 without indemnity since the purchase price
but always subject to the rule that the rights of the servient presumably already included the right of easement. Later
owner are not abused. the outlet thru estate 1 became useless because the
Art. 654. If the right of way is permanent, the necessary A: No, extinguishement can only be effected upon the
repairs shall be made by the owner of the dominant estate. demand of the owner of the servient estate.
A proportionate share of the taxes shall be reimbursed by
said owner to the proprietor of the servient estate. (n) Return of the indemnity
Responsibility for repairs and taxes 1. If the right of way is permanent-upon the extinguishemnt
of the servitude, the owner of the servient estate is
This article applies only in case of permanent easement. obliged to return the amount of indemnity without
interest; and
Q: Who is liable for necessary repairs? 2. If the right of way is temporary-there is no need of
returning the indemnity. The indemnity paid has the
A: Owner is liable. nature of rentals in a lease contract which need not be
returned after the termination of the leaese.
Q: Who shall pay for the taxes?
Art. 656. If it be indispensable for the construction, repair,
A:Proportioanate share of the taxes shall be reimbursed by improvement, alteration or beautification of a building, to
the owner to the proprietor of the servent estate. carry materials through the estate of another, or to raise
therein scaffolding or other objects necessary for the work,
Q: What do you mean by “proportionate share”? the owner of such estate shall be obliged to permit the act,
after receiving payment of the proper indemnity for the
A: According to Dean Pineda, it shall be corresponding to the damage caused him. (569a)
area of the right of way which could be mathematically
computed by dividing the amount of the tax by the number of Temporary Easement of right of way
square hectares used as right of way.
Q: What does the word “owner” contemplate?
Art. 655. If the right of way granted to a surrounded estate
ceases to be necessary because its owner has joined it to A: “Owner” comprehends the usufructuary who may make
another abutting on a public road, the owner of the servient use of the right granted.
estate may demand that the easement be extinguished,
returning what he may have received by way of indemnity. Q: What do you mean by “improvement”?
The interest on the indemnity shall be deemed to be in
payment of rent for the use of the easement. A: “Improvement”, alteration or beautification are added to
make the rule comprehensive.
The same rule shall be applied in case a new road is opened
giving access to the isolated estate. Q: What does “indispensable” mean?
In both cases, the public highway must substantially meet A: “Indispensable” should not be construed in its literal
the needs of the dominant estate in order that the meaning. It is sufficient that great convenience, difficulty or
easement may be extinguished. (568a) expense would be encountered.
This article applies only to legal or compulsory right of way. It Art. 657. Easements of the right of way for the passage of
does not apply to voluntary easement because the existence livestock known as animal path, animal trail or any other,
of such easement is not affected by the existence of another and those for watering places, resting places and animal
outlet but the contract between the parties. folds, shall be governed by the ordinances and regulations
relating thereto, and, in the absence thereof, by the usages
Q: What extinguishes the easement of right of way? and customs of the place.
A: A common wall which separates two estates, built by Note: If the signs are contradictory, they cancel each other.
common agreement at the dividing line such that it occupies
a portion of both estates on equal parts. Art. 660. It is understood that there is an exterior sign,
contrary to the easement of party wall:
Q: Which is the servient estate?
(1) Whenever in the dividing wall of buildings there is a
A: The party wall itself is the servient estate. window or opening;
(2) Whenever the dividing wall is, on one side, straight and
Party wall v. Co-ownership plumb on all its facement, and on the other, it has similar
The article mentions some exterior signs rebutting the Art. 663. If the owner of a building, supported by a party
presumption of a party wall. wall desires to demolish the building, he may also renounce
his part-ownership of the wall, but the cost of all repairs and
The wall becomes the exclusive property of the owner of the work necessary to prevent any damage which the
estate which has in its favor the presumption based on any of demolition may cause to the party wall, on this occasion
the exterior signs. only, shall be borne by him. (576)
A: The enumeration is merely illustrative and not exclusive. A: “On this occasion only” means that his liability for damages
is limited to those damages suffered simulateneously, during,
Q: What if there are external signs indicating ownership on or immediately after, and by reason of the demolition.
both sides of wall?
Art. 664. Every owner may increase the height of the party
A: If the external signs indicate ownership on both sides of wall, doing at his own expense and paying for any damage
the wall, attention should be directed to the comparative which may be caused by the work, even though such
quality or importance, rather than to the number of signs. damage be temporary.
Q: What if there is conflict between an external sign and The expenses of maintaining the wall in the part newly
title to the wall? raised or deepened at its foundation shall also be paid for by
him; and, in addition, the indemnity for the increased
A: When there is a contradiction between an external sign expenses which may be necessary for the preservation of
and a title to the wall, the title must prevail. the party wall by reason of the greater height or depth
which has been given it.
Art. 662. The cost of repairs and construction of party walls
and the maintenance of fences, live hedges, ditches, and
Increasing the height of party wall A: It is so because such an act would imply the exercise of the
right of ownership by the use of the entire thickness of the
Q: What are the requisites so that the owner may increase wall; it would be an invasion of the right of the other part
the height of party wall? owners, inasmuch as each owner is entitled only to a
proportional use of the party wall.
A:
Q: What is an easement of light?
1. he must do so at his own expense;
2. he must pay any damage caused thereby even if the A: It is the right to admit light from the neighboring estate by
damage is temporary; virtue of the opening of a window or the making of certain
3. he must bear the cost of maintaining the portion openings.
added; and
4. he must pay the increased cost of preservation of Q: What is an easement of view?
the wall.
A: It is the right to make openings or windows, to enjoy the
He shall be obliged to reconstruct the wall at his expense if view through the estate of another and the power to prevent
necessary for the wall to bear the increased height and if all constructions or works which would obstruct such view or
additional thickness is required, he shall provide the space make the same difficult; it necessarily includes the easement
therefore from his own land. of light.
A person building a common wall must exercise such Q: Is it possible to have light only without view?
reasonable care as will render the inconvenience and loss to
his neighbor as small as practicable. A: Yes.
The additional thickness of the new wall must be placed on A window or opening in the dividing wall of buildings is an
the land of the person building it, but the foundation may exterior sign which rebuts the presumption that the wall is a
extend equally on each side from the center of the wall. party wall; one part owner may not, therefore, make any
window or opening of any kind thru a party wall without the
Art. 665. The other owners who have not contributed in consent of others.
giving increased height, depth or thickness to the wall may,
nevertheless, acquire the right of part-ownership therein, by Art. 668. The period of prescription for the acquisition of an
paying proportionally the value of the work at the time of easement of light and view shall be counted:
the acquisition and of the land used for its increased
thickness. (578a) (1) From the time of the opening of the window, if it is
through a party wall; or
Art. 666. Every part-owner of a party wall may use it in (2) From the time of the formal prohibition upon the
proportion to the right he may have in the co-ownership, proprietor of the adjoining land or tenement, if the
without interfering with the common and respective uses by window is through a wall on the dominant estate. (n)
the other co-owners. (579a)
PRESCRIPTIVE PERIOD FOR ACQUISITION OF EASEMENT OF
Each part-owner can use the party wall only in proportion to LIGHT AND VIEW
his interest. The extent of the right to use is thus made to
correspond to the extent of liability for repairs and Positive easement
construction provided for in Art. 662.
It is made thru a party wall or even if made on one’s own
wall, if the window is on a balcony or projection extending
over the property. A party wall is not for the opening of
SECTION 5. - Easement of Light and View windows; its purpose is to support the buildings of the part –
owners. When a window is opened through a party wall, an
apparent and continuous easement is created from the time
Under Article 668 par.1, the adjoining owner can order the The openings allowed by this article are for the purpose of
window closed within ten years from the time of the opening admitting light; hence they can be made only in the walls of
of the window. buildings.
If the window is made through a wall on the dominant A: It is the part of the construction which covers the room
Estate in such a case, the ten year prescriptive period under it and certainly forms one of the essential parts of
commences from the time of the formal prohibition upon the every story of the building having several floors.
adjoining owner.
Q: What are joists?
The “formal prohibition” must be an instrument
acknowledged before a notary public. A: A horizontal timber that are placed upon the tops of the
uprights; beams; restrictions.
Art. 669. When the distances in Article 670 are not
observed, the owner of a wall which is not party wall, Art. 670. No windows, apertures, balconies, or other similar
adjoining a tenement or piece of land belonging to another, projections which afford a direct view upon or towards an
can make in it openings to admit light at the height of the adjoining land or tenement can be made, without leaving a
ceiling joints or immediately under the ceiling, and of the distance of two meters between the wall in which they are
size of thirty centimeters square, and, in every case, with an made and such contiguous property.
iron grating imbedded in the wall and with a wire screen.
Neither can side or oblique views upon or towards such
Nevertheless, the owner of the tenement or property conterminous property be had, unless there be a distance of
adjoining the wall in which the openings are made can close sixty centimeters.
them should he acquire part-ownership thereof, if there be
no stipulation to the contrary. The nonobservance of these distances does not give rise to
prescription. (582a)
He can also obstruct them by constructing a building on his
land or by raising a wall thereon contiguous to that having Art. 671. The distance referred to in the preceding article
such openings, unless an easement of light has been shall be measured in cases of direct views from the outer
acquired. (581a) line of the wall when the openings do not project, from the
outer line of the latter when they do, and in cases of oblique
OPENINGS AT HEIGHT OF CEILING JOISTS TO ADMIT LIGHT view from the dividing line between the two properties.
(583)
If the wall is not a party wall, the owner may make an
opening for the purpose of admitting light and air, but not for Art. 672. The provisions of Article 670 are not applicable to
view. buildings separated by a public way or alley, which is not
less than three meters wide, subject to special regulations
and local ordinances. (584a)
Q: What are the restrictions for making an opening for light
and air? DIRECT AND OBLIQUE VIEWS
1. the size must not exceed 30 centimeter square; A: It is that which is obtained from a wall parallel to the
2. the opening must be at the height of the ceiling boundary line, such that from the opening in such wall it is
joists or immediately under the ceiling; possible to see the adjoining tenement without the necessity
3. there must be an iron grating imbedded in the wall; of putting out or turning one's head side.
4. there must be a wire screen
Q: What is an oblique view?
If the wall becomes a party wall – a part owner can order the
closure of the opening because no part – owner may make an A: It is obtained from a wall at an angle with the boundary
opening through a party wall without the consent of the line; in order to see the adjoining tenement, it is necessary to
others; it can also obstruct the opening unless an easement turn one's head to the left or to the right.
An owner can build within the minimum distance or even up SECTION 6. - Drainage of Buildings
to the dividing line provided no window is opened as
provided in Art. 669. Art. 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the rain
Prescription may still be acquired as a negative easement water shall fall on his own land or on a street or public
after ten years fromthe time of notarial prohibition. place, and not on the land of his neighbor, even though the
adjacent land may belong to two or more persons, one of
whom is the owner of the roof. Even if it should fall on his
own land, the owner shall be obliged to collect the water in
WHERE BUILDINGS SEPARATED BY A PUBLIC WAY such a way as not to cause damage to the adjacent land or
OR ALLEY tenement. (586a)
The distance provided in Art. 670 is not compulsory where EASEMENT OF DRAINAGE OF BUILDINGS
there is a public way or alley provided that it is not less than
three meters wide, the minimum width is necessary for the Q: What is an easement of drainage of buildings?
sake of privacy and safety.
A: It is the right to divert or empty the rain waters from one’s
Note: The width of the alley is subject to special regulations own roof or shed to the neighbor’s estate either drop by drop
and ordinances. or through conduits.
A private alley opened to the use of the general public falls The article does not really create servitude it merely regulates
within the provision of Art. 672. the use of one’s own property by imposing on him the
obligation to collect its rain water so as not to cause damage
Art. 673. Whenever by any title a right has been acquired to to his neighbors, even if he be a co –owner of the latter. It
have direct views, balconies or belvederes overlooking an provides an exception to art. 637 which obliges lower estates
adjoining property, the owner of the servient estate cannot to receive the waters which naturally flow from higher
build thereon at less than a distance of three meters to be estates.
measured in the manner provided in Article 671. Any
stipulation permitting distances less than those prescribed Note: This article does not establish servitude but merely
in Article 670 is void. (585a) regulates the use of one's property.
WHERE EASEMENT OF DIRECT VIEW HAS BEEN Art. 675. The owner of a tenement or a piece of land,
ACQUIRED subject to the easement of receiving water falling from
roofs, may build in such manner as to receive the water
EASEMENT TO RECEIVE FALLING RAIN Art. 679. No trees shall be planted near a tenement or piece
WATERS of land belonging to another except at the distance
authorized by the ordinances or customs of the place, and,
The article deals not with a legal or compulsory easement, in the absence thereof, at a distance of at least two meters
but with a voluntary easement to receive rain water falling from the dividing line of the estates if tall trees are planted
from the roof of an adjoining building. It is an application of and at a distance of at least fifty centimeters if shrubs or
Art. 629. small trees are planted.
Art. 676. Whenever the yard or court of a house is Every landowner shall have the right to demand that trees
surrounded by other houses, and it is not possible to give an hereafter planted at a shorter distance from his land or
outlet through the house itself to the rain water collected tenement be uprooted.
thereon, the establishment of an easement of drainage can
be demanded, giving an outlet to the water at the point of The provisions of this article also apply to trees which have
the contiguous lands or tenements where its egress may be grown spontaneously. (591a)
easiest, and establishing a conduit for the drainage in such
manner as to cause the least damage to the servient estate, CONSTRUCTION AND PLANTINGS NEAR
after payment of the property indemnity. (583) FORTIFIED PLACES
EASEMENT GIVING OUTLET TO RAIN WATER WHERE HOUSE This article establishes an easement in favor of the State. The
SURROUNDED BY OTHER HOUSES general prohibition is dictated by the demands of national
security.
Q: What are the conditions for this easement?
CONSTRUCTION OF AQUEDUCT, WELL, SEWER. ETC.
A:
1. There must be no adequate outlet to the rain water Such constructions must comply with the distances
because the yard or court of a house is surrounded by prescribed by local regulations and customs of the place;
other houses;
2. The outlet to the water must be at the point where The owner must take necessary protective works or other
egress is easiest, and establishing a conduit for drainage; neighboring estates.
and
3. There must be payment of proper indemnity. The prohibitions in the article cannot be altered or renounced
by stipulations because they involve considerations of public
policy and general welfare.
Art. 678. No person shall build any aqueduct, well, sewer, Q: What is the purpose of Art. 679?
furnace, forge, chimney, stable, depository of corrosive
substances, machinery, or factory which by reason of its A: The purpose of this article is to prevent the plantings from
nature or products is dangerous or noxious, without encroaching into the neighboring tenements.
observing the distances prescribed by the regulations and
customs of the place, and without making the necessary Art. 680. If the branches of any tree should extend over a
protective works, subject, in regard to the manner thereof, neighboring estate, tenement, garden or yard, the owner of
to the conditions prescribed by such regulations. These the latter shall have the right to demand that they be cut off
prohibitions cannot be altered or renounced by stipulation insofar as they may spread over his property, and, if it be
on the part of the adjoining proprietors. the roots of a neighboring tree which should penetrate into
Q: Can the adjoining estate cut the roots and the branches Q: Is an easement against nuisance a positive or negative
without the consent of the owner of the tree? one?
A: Right to cut roots can be exercised without notice to the A: The Civil Code considers the easement against nuisance as
owner of the trees. But as to the branches, it is necessary to negative because the proprietor or possessor is prohibited to
ask that they be cut, and if the owner of the tree does not do do something which he could lawfully do were it not for the
so voluntarily, the court may authorize the neighboring existence of the easement. However, a nuisance involves any
owner to cut them. act or omission which is unlawful.
Q: Does this right prescribe? The above articles are more of a restriction on the right of
ownership than a true easement.
A: The right to cut does not prescribe so long as the owner
tolerates the branches and roots invading his tenement. But Q: What is a nuisance?
the moment the owner of the tenement demanded that the
branches be cut off and the owner of the tree refuses to do A: It is a class of wrongs which arise from unreasonable,
so, the prescription starts to run. unwarranted, or unlawful use by a person of his own
property, and which produces such material annoyance,
Art. 681. Fruits naturally falling upon adjacent land belong inconvenience, discomfort or harm that the law will presume
to the owner of said land. (n) a consequent damage.
Q: What is the basis of this article? The easement against nuisance is not an easement at all but a
restriction upon the ownership and not every limitation on
A: This is based on the principle of accession. the right of ownership is an easement.
A:
Art. 687. Any proprietor intending to make any excavation A: it is voluntary when it is established by the will of the
contemplated in the three preceding articles shall notify all owners.
owners of adjacent lands.
Q: Who may constitute voluntary easements?
Q: State the purpose of notice?
A: The owner possessing capacity to encumber property may
A: It is to enable the adjoining owners to take the necessary constitute voluntary servitude. If there are various owners, all
precautions to protect their lands and the building thereon. must consent; but consent once given is not revocable.
Although the person making the excavation has given notice, Art. 689. The owner of a tenement or piece of land, the
he is bound nevertheless to exercise reasonable care and skill usufruct of which belongs to another, may impose thereon,
in excavating on his land so as not to cause damage to the without the consent of the usufructuary, any servitudes
neighboring property. which will not injure the right of usufruct. (595)
The giving of the notice is just an additional precaution; it Where the property held in usufruct
does not have the force and effect of a substitute for and
does not absolve the excavator from the duty to exercise Q: May the owner of a property in usufruct may create
reasonable care to avoid injury to neighboring buildings. easements thereon without the consent of the
usufructuary?
Q: Is the notice required mandatory?
A: The owner of a property in usufruct may create easements
A: Yes except where there is actual knowledge of the thereon without the consent of the usufructuary provided
proposed excavation. the rights of the latter are not impaired.
PROPRIETOR PROHIBITED FROM MAKING Art. 690. Whenever the naked ownership of a tenement or
DANGEROUS EXCAVATIONS piece of land belongs to one person and the beneficial
ownership to another, no perpetual voluntary easement
Q: Does the limitation extend to future constructions?
Creation of perpetual voluntary easement A: In order to produce the transmission of ownership over
the tenement abandoned, the abandonment or transfer must
Consent of both the naked owner and the beneficial owner is be made in the proper juridical form required for the
necessary transmission of ownership of immovable property.
Art. 691. In order to impose an easement on an undivided The article applies only where the owner of the servient
tenement, or piece of land, the consent of all the co-owners estate bound himself to bear the cost of the work required
shall be required. for the use and preservation of the easement.
He is bound to fulfill the obligation he has contracted. He may
The consent given by some only, must be held in abeyance free himself from obligation by renouncing or abandoning his
until the last one of all the co-owners shall have expressed property to the dominant owner.
his conformity.
In any case, it cannot be tacit or implied, it must follow the
But the consent given by one of the co-owners separately form required by law for the transmission of ownership of
from the others shall bind the grantor and his successors not real property
to prevent the exercise of the right granted. (597a)
Art. 693. If the owner of the servient estate should have NOTE: Art. 596 gives the statutory definition of nuisance in
bound himself, upon the establishment of the easement, to terms of that which causes the harm or damage, and not of
bear the cost of the work required for the use and the harm or damage caused.
preservation thereof, he may free himself from this
obligation by renouncing his property to the owner of the Q: Is negligence an ingredient for a nuisance?
dominant estate. (599)
A: Negligence is not an essential ingredient of nuisance but to
Where the servient owner bound himself to bear cost of be liable for nuisance, there must be resulting injury to
maintenance of easement another in the enjoyment of his legal rights.
The annoyance shall be judged by the effect they produce Q: What are the kinds of nuisance?
upon ordinary persons under normal circumstances, not by
their effect upon the over sensitive, the fastidious or the A:
discriminating.
1. According to the number of persons affected:
Neither they will be judged by their effect upon those who
are abnormally indiferent to such things nor those who have a. Public (or common) nuisance – is one which affects the
become accustomed and learned to endure them without community or neighborhood or considerable number of
any inconvenience. persons
b. Private nuisance – is one which affects an individual or few
Ex: pumping station which rendered a house uninhabitable persons only.
because of the noise produced.
2.Other classification of nuisance:
Shocks, defies or disregards decency or morality
Q: What is the doctrine of attractive nuisance? Nuisance per se Nuisance per accidens
an act, occupation, or an act, occupation, or
A: One who maintains on his premises dangerous structure which is a nuisance structure, not a nuisance per
instrumentalities or appliances of a character likely to attract at all times and under any se, but which may become a
children in play, and who fails to exercise ordinary care to circumstances, nuisance by reason of
prevent children from playing therewith or resorting thereto, regardless of location or circumstances, location, or
is liable to a child of tender years who is injured thereby, surroundings. surroundings
even if the child is technically a trespasser in the premises. A nuisance because of its
inherent qualities, productive
Q: What are the elements of attractive nuisance? of injury or dangerous to life
or property without regard
A: to circumstance
1. It must be attractive As a matter of law As a matter of fact
2. Dangerous to children of tender years. Need only be proved in any Depends upon its location
locality and surroundings, the
Q: In what instance this doctrine not applicable? manner of its conduct or
other circumstances
A: The doctrine is generally not applicable to bodies of water, May be summarily abated May be abated only with
artificial as well as natural in the absence of some unusual under the law of necessity reasonable notice to the
condition or artificial feature other than the mere water and person alleged to be
its location. maintaining or doing such
nuisance
Q: What is the basis of this doctrine?
Private v. Public nuisance
A: The attractiveness is an invitation to children. This serves
as a safeguard to prevent danger. PRIVATE PUBLIC
One which violates only the doing of or the failure to
Q: Is a swimming pool an attractive nuisance? private rights and produces do something that injuriously
damage to but one or few affects safety, health, or
A: persons, and cannot be said morals of the public, or
to be works some substantial
GR: A swimming pool or water tank is not an attractive public annoyance, inconvenience,
nuisance, for while it is attractive, it is merely an imitation of or injury to the public
the work of nature. Hence, if small children are drowned in Affects the individual or a affects the public at large or
an attractive water tank of another, the owner is not liable limited number of individuals such of them as may come in
even if there be no guards in the premises. only contact with it
actionable, either for their indictable
XPN: Swimming pools with dangerous slides
abatement
or for damages, or both
Art. 695. Nuisance is either public or private. A public
nuisance affects a community or neighborhood or any
Q: May a nuisance be both public and private?
considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be
A: Yes, it is called mixed nuisance.
unequal. A private nuisance is one that is not included in the
foregoing definition.
Ex: A house washed on to a street railway track: private
nuisance to the railway company and a public nuisance
Old classification:
because it obstructs the street.
Facultad de Derecho Civil 114
UNIVERSITY OF SANTO TOMAS
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
Abatement and recovery of damages
Q: Can a lawful business be a nuisance?
The action to abate and the action to recover damages are
A: It may or may not be a nuisance depending upon the distinct remedies either or both of which the plaintiff may
particular circumstances in each case. If the conduct of the pursue at his election.
business or even its existence causes grave inconvennience
and discomfort to others, it is a nuisance. The owner of property abated as a nuisance is not entitled to
compensation unless he can show that the abatement is
Art. 696. Every successive owner or possessor of property unjustified.
who fails or refuses to abate a nuisance in that property
started by a former owner or possessor is liable therefor in Art. 698. Lapse of time cannot legalize any nuisance,
the same manner as the one who created it. whether public or private.
GR: Only the creator of a nuisance is liable for the damage GR: the right to bring an action to abate a public or private
resulting therefrom. nuisance is not extinguished by prescription.
However, since the injurious effect of a nuisance is a XPN: under the special rule of Art. 613 (2) which expressly
continuing one, every successive owner or possessor of prescribes that easements are extinguished by
property constituting a nuisance who fails or refuses to abate obstruction and non – user for ten years.
it, or permits its continuation has the same liablity as the one
who created it. Art. 699. The remedies against a public nuisance are:
Q: What should be done to render the person liable? (1) A prosecution under the Penal Code or any local
ordinance: or
A: To render him liable, it is necessary that he has actual (2) A civil action; or
knowledge of the existence of the nuisance and that it is (3) Abatement, without judicial proceedings.
within his power to abate the same.
Q: What are the remedies againts nuisance?
Q: What is the rule if there is a concurrent of act or
community of action? A:
A: It is valid in the exercise of police power. It is based on ROLE OF DISTRICT HEALTH OFFICER AND OTHERS WITH
necessity which must be present to justify its exercise. RESPECT TO PUBLIC NUISANCE
If property is destroyed or taken as a nuisance, the owner is The district health officer is charged with the duty to see to it
not entitled to compensation. And the municipality, officer or that one or all of the remedies against a public nuisance are
person destroying it is not liable for damages. availed of; He shall determine whether the third remedy is
the best remedy against a public nuisance.
Q: Under what instance can extra-judicial abatement be
applied? The remedy must be availed of only with the intervention of
the district health officer.
A: It can only be applied if what is abated is a nuisance per se
and NOT nuisance per accidens. Q: What is the effect of failure to comply with Art. 720? Is
that a ground for the award for damages?
Art. 700. The district health officer shall take care that one
or all of the remedies against a public nuisance are availed A: No.
of.
Note: Art. 702 does not empower the district officer to abate
Art. 701. If a civil action is brought by reason of the a public nuisance to the exclusion of all other authorities.
maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor. Q: How to commence the action?
Art. 702. The district health officer shall determine whether A: The action must be commenced by the city or municipal
or not abatement, without judicial proceedings, is the best mayor; but a private person may also file an action if the
remedy against a public nuisance. public nuisance is especially injurious to him.
Ordinarily, the mayor is directed by law to commence the civil RIGHT OF PRIVATE PERSON TO FILE AN ACTION ON
action to eliminate a public nuisance. By way of exception, a ACCOUNT OF A PUBLIC NUISANCE
private person is authorized to file a suit to abate a public
nuisance, provided that he has suffered a particular harm or A private person may also file a civil action if the public
injury and such harm is different from the harm caused to the nuisance is especially injurious to him. Accordingly, such
public it should be “specifically injurious to him.” nuisance becomes to him a private nuisance affecting him in
a special way different from that sustained by the public in
In such case, the nuisance is treated as private nuisance. general.
A: Yes, there is a necessity of giving notice to such person in A person who consented, permitted, acquiscence in the
order to enable him to abate the nuisance himself. construction of a building and aware of the purposes for
which it was established, is estopped from asserting that the
Q: What are the requisites for the extra-judicial abatement structure is a nuisance against him.
of public nuisance?
Art. 706. Any person injured by a private nuisance may
A: abate it by removing, or if necessary, by destroying the thing
which constitutes the nuisance, without committing a
1. Must be specifically injurious to the person affected; breach of the peace or doing unnecessary injury. However,
2. No breach of peace or unnecessary injury must be it is indispensable that the procedure for extrajudicial
committed; abatement of a public nuisance by a private person be
3. Demand have been first made upon the owner or followed.
possessor of the property to abate the nuisance;
4. It may be exercised only in cases of urgent or REMEDIES AGAINST A PRIVATE NUISANCE
extreme necessity;
5. The summary abatement should be resorted to The remedies provided for in the article are the same as the
within a reasonable time; remedies against a public nuisance except for the absence of
6. After knowledge of the nuisance is acquired; the first remedy of criminal prosecution.
7. Reasonable notice of intention to abate the nuisance
must be given to the owner;
8. Demand has been rejected;
9. Means employed must be reasonable;
10. Abatement must be approved by the district health
officer and executed with the assistance of the local Right to damages
police;
11. Property must not be destroyed unless it is really This remedy includes the reparation for past injuries and not
necessary to do so; an authority to continue the wrong.
12. Rights must always be exercised with the assistance
of the local police; and
13. Value of destruction does not exceed P3000.00.
Available defenses Art. 708. The Registry of Property has for its object the
inscription or annotation of acts and contracts relating to
a. Public necessity- under the pressure of public the ownership and other rights over immovable property.
necessity what would otherwise constitute a (605)
nuisance may be inflicted upon certain members of
the community; Q: What is the Registry of Property or Register of Deeds?
b. Estoppel;
c. Impossibility of abatement; and A: It is the agency of government stationed in every province
d. Non-existence of the nuisance. or cities headed by a register of deeds under the supervision
of the Land Registration Authority and the Department of
Q: Is legal title necessary to enable to maintain a suit? Justce.
A: Ownership of the legal title is not necessary to enable one It is the public repository of records of public documents
to maintain a suit to prevent a threatened nuisance which affecting the title to lands in the provinces or city where the
would disturb him in the peaceable use and possession of lands are located.
property on which he resides.
Q: What do you mean by registration?
Art. 707. A private person or a public official extrajudicially
abating a nuisance shall be liable for damages: A: It means the entry made in a book or public registry of
deeds.
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by the courts to Q: What is the purpose of registration?
be not a real nuisance.
A: The purpose of registration is merely to notify and protect
LIABILITY FOR DAMAGES IN CASE OF the interests of strangers to a given transaction, who may be
EXTRAJUDICIAL ABATEMENT OF NUISANCE ignorant thereof, and the non-registration of the deed
evidencing such transaction does not relieve the parties
The article provides for two grounds to hold a private or thereto of their obligations thereunder.
public official extrajudicially abating a nuisance liable for
damages Registration is useless when what is registered is insufficient
to grant such right as in the case of fictitious or simulated
Q: What is the purpose of this article? sale.
A: It serves the dual purpose of providing a sort of deterrent NOTE: Register may refer to:
against the improvident or unreasonable resort to the a. the act of recording or annotating
remedy by unscrupulous parties and at the same time affords b. the book of registry
the victim a civil remedy to recover damages without c. the office concerned
prejudice to such other remedies granted by law. d. the official concerned
A: The amount of damages will depend on the evidence of A: It is the inscription and annotation of acts and contracts
the property owner or possessor of the thing. relating to the ownership and other rights over immovable
property.
Q: What are the remedies available?
Proceedings for registration of lands are IN REM
A: He may go to court for the determination of the status of
the property. He may ask for the following: A proceeding in rem dealing with a tangible res may be
a. Replevin instituted and carried to judgment without personal service
b. injunction (sale, destruction) upon claimants within the State or notice by name to those
c. recover proceeds outside of it, and not encounter any provision of either
d. damages constitution. Jurisdiction is secured by the power of the court
over the res.
A: It is equivalent to registration it binds such person to the A: It is an all inclusive term. It covers every person whose
act. purpose of examinaion of a recorded act or transaction is not
unlawful or arises from a sheer idle curiosity.
Q: In case of conflict between an unrecorded Deed of Sale of
prior date and a recorded Real Estate Mortgage of the latter NOTE: Interested parties may secure upon payment of the
date, which shall prevail? required fee, certified true copies of titles and other records
in the registry.
A: The unrecorded Deed of Sale.
The register or his representative may also be subpoenad to
Effects of registration appear and testify in court and bring certain titles and other
related documents.
Q: What are the effects of registration?
Art. 711. For determining what titles are subject to
A: inscription or annotation, as well as the form, effects, and
1. operates as constructive notice; cancellation of inscriptions and annotations, the manner of
2. does not validate or cure defective instrument; keeping the books in the Registry, and the value of the
3. cannot bind property where it is legally ineffective; entries contained in said books, the provisions of the
4. does not vest title Mortgage Law, the Land Registration Act, and other special
laws shall govern. (608a)
Effect of lack of registration
“Other special laws” may include special laws governing the
Q: What is the effect of lack of registration? registration of movable property in a registry office
Ownership and other real rights over property are acquired A: It is the power of a person to obtain certain financial or
and transmitted by law, by donation, by estate and economic advantages over a specific thing; a power
intestate succession, and in consequence of certain enforceable against the whole world whether or not he
contracts, by tradition. possesses the thing.
They may also be acquired by means of prescription. (609a) Q: What is a personal right (Jus in personam)?
Q: What are the different modes of acquiring other real Tradition alone does not confer ownership but a
rights? consequence of contract comleted by tradition or delivery.
Q: Is registration a mode of acquirng ownership? Q: What are the requisites for a constructive delivery?
Art. 445- improvements on the land of another; A: It is a mode of acquiring ownership and other real rights
Art. 447-alluvium; through the mere lapse of time and under conditions laid
Art. 461- abandoned river beds; and down by law.
Art. 681-falling fruits into the tenement of another.
TRADITION
A:
1. Animals that are the object of hunting and fishing
Title I. - OCCUPATION 2. Hidden treasures-only if there is no known owner
thereof. This is possible only if there is no known owner
Art. 713. Things appropriable by nature which are without thereof. This is possible only if the treasure is founding
an owner, such as animals that are the object of hunting and places or things without owners.
fishing, hidden treasure and abandoned movables, are 3. Abandoned movbles- a thing is abandoned when:
acquired by occupation. (610) a. The expectation to recover is gone (spes
recuperandi)
Q: What is occupation? b. The intent to return or have it returned is given up
(spes rivertandi)
A: Acquisition of ownership by seizing corporeal things that
have no owner, made with the intention of aquiring them, Art. 714. The ownership of a piece of land cannot be
and accomplished according to legal rules (Sanchez Roman). acquired by occupation. (n)
It is a unilateral act through the material apprehension of a
thing which is limited to those without an owner. Q: What is the reason for this?
Q: What are the requisites of occupation? A: When the land is without an owner, it pertains to the State
following the Regalian Doctrine.
A:
Q: What is the rule as to abandoned land?
1. There must be Seizure of a thing,
The special law which regulates hunting to protect animal life Art. 718. He who by chance discovers hidden treasure in
are Act No. 2590 as amended by Act. No. 3770, Act. No. 4003 another's property shall have the right granted him in article
and C.A. No. 491. 438 of this Code. (614)
On the other hand, the special Law governing fishing is P.D. Q: What is the rule as regards the finder when 2 or more
No. 704 otherwise known as the Fisheries Decree of 1975. strangers are involved?
Hunting and fishing may be regulated by a municipal A: The one who actually struck the thing (ground or anything)
corporation or local government unit under a provision of law or found the spot, whilch exposed the treasure to view is the
or authority granted by Congress, being in this case a finder.
delegation of the State’s authority to the corporation.
The discovery of the hidden treasure must be by chance-
there must be no deliberate inrtention or design to search for
Art. 716. The owner of a swarm of bees shall have a right to the treasure.
pursue them to another's land, indemnifying the possessor
of the latter for the damage. If the owner has not pursued Q: What is the rule if the finder is given an express
the swarm, or ceases to do so within two consecutive days, permission by the owner to search?
the possessor of the land may occupy or retain the same.
The owner of domesticated animals may also claim them A: The finder is not entitled to the shre in the treasure unless
within twenty days to be counted from their occupation by the parties so stipulated.
another person. This period having expired, they shall
pertain to him who has caught and kept them. (612a)
If the movable cannot be kept without deterioration, or Q: What if the owner has appeared?
without expenses which considerably diminish its value, it
shall be sold at public auction eight days after the A: The finder shall receive the award under Art. 720 which is
publication. 1/10 of the sum price of the thing found.
Six months from the publication having elapsed without the Q: What is the consequence of violating the article?
owner having appeared, the thing found, or its value, shall
be awarded to the finder. The finder and the owner shall be A: The finder shall be guilty of the crime of theft.
obliged, as the case may be, to reimburse the expenses.
(615a) The obligation to return is not limited to the first finder, it
extends to the successor who has knowledge of the finding.
Q: What is a lost thing?
Art. 720. If the owner should appear in time, he shall be
A:It is the one previously under the lawful possession and obliged to pay, as a reward to the finder, one-tenth of the
control of a person but is now without any possessor. sum or of the price of the thing found. (616a)
However, it is not abondoned property.
Q: What is the obligation of the owner who appeared?
Finder’s keeper law (U.S.)
A:
The finding of the movable may be by chance or by search as
the law did not make any distintion, unlike in hidden 1. To give reward to the finder-amounting to the 1/10
treasure. of the sum or value of the thing;
Art. 721. By intellectual creation, the following persons Title III. - DONATION
acquire ownership:
CHAPTER 1
(1) The author with regard to his literary, dramatic, NATURE OF DONATIONS
historical, legal, philosophical, scientific or other work;
(2) The composer; as to his musical composition; Art. 725. Donation is an act of liberality whereby a person
(3) The painter, sculptor, or other artist, with respect to the disposes gratuitously of a thing or right in favor of another,
product of his art; who accepts it. (618a)
(4) The scientist or technologist or any other person with
regard to his discovery or invention. (n) Q: How is donation perfected?
State policy A: It is perfected from the moment the donor knows of the
acceptance by the donee (Article 734). Once a donation is
Section 13. The State shall protect and secure the exclusive accepted, it cannot be revoked without the consent of the
rights of scientists, inventors, artists, and other gifted donee except on grounds provided by law.
citizens to their intellectual property and creations,
particularly when beneficial to the people, for such period Q: What are the requisites for a valid donation?
as may be provided by law. (Sec. 13, Art XIV, The 1987
Constitution) A:
Art. 722. The author and the composer, mentioned in Nos. 1 1. Donor must have the capacity to make the donation;
and 2 of the preceding article, shall have the ownership of 2. He must have donative intent (animus donandi);
their creations even before the publication of the same. 3. There must be delivery in certain cases;
Once their works are published, their rights are governed by 4. Donee must accept or consent to the donation during
the Copyright laws. the lifetime of the donor and of the donee in case of
donation inter vivos; whereas in case of donation mortis
The painter, sculptor or other artist shall have dominion causa, acceptance is made after donor’s death because
over the product of his art even before it is copyrighted. they partake of a will.
Dual interests or property rights in the letter: A: The donee may not want to accept the donor’s liberality or
if the donation is onerous, he may not agree with the burden
1. Intellectual property , consisting of thoughts and the imposed.
ideas and their form of expression contained in the
letter; Q: What is the effect of donation made to an unborn child?
2. The material or physical thing, which is the paper and the
impression made thereon by the mechanical means of
writing that has been employed.
Art. 729. When the donor intends that the donation shall
take effect during the lifetime of the donor, though the
property shall not be delivered till after the donor's death,
this shall be a donation inter vivos. The fruits of the
property from the time of the acceptance of the donation,
shall pertain to the donee, unless the donor provides
otherwise. (n) DONATION INTER VIVOS SUBJECT TO A
RESOLUTORY CONDITON
Inter vivos v. Mortis causa
A donation subject to a resolutory condition takes effect
INTER VIVOS MORTIS CAUSA immediately but shall become inefficacious upon the
Takes effect independently Takes effect upon death of happening of the event which constitutes the condition.
of the donor’s death donor
Title conveyed to the donee Title conveyed upon donor’s Even if the donation is subject to the resolutory condition of
before donor’s death death the donor’s survival, the donation is still inter vivos.
Generally irrevocable during Always revocable
donor’s lifetime Art. 732. Donations which are to take effect inter vivos shall
Must comply with the Must comply with the be governed by the general provisions on contracts and
formalities required by Arts. formalities required by law obligations in all that is not determined in this Title. (621)
748 and 749 of the Code for the execution of wills
Acceptance during donor’s Acceptance should ne made Donations inter vivos are donations of property that are not
lifetime after donor’s death mortis causa. They include the simple, remunerative, modal
Donor’s tax is payable Estate tax is payable and onerous, whether or not subject to any condition or
term.
In case of doubt the conveyance shall be deemed an inter
vivos rather than mortis causa, in order to avoid uncertainty Art. 733. Donations with an onerous cause shall be
as to the ownership of the property subject of a deed. governed by the rules on contracts and remuneratory
donations by the provisions of the present Title as regards
The nature of donation is not determined by the title given to that portion which exceeds the value of the burden
it by the donor but by what is expressed therein. imposed. (622)
Art. 730. The fixing of an event or the imposition of a RULES GOVERNING ONEROUS DONATIONS OR
suspensive condition, which may take place beyond the ONEROUS PORTIONS OF DONATIONS
natural expectation of life of the donor, does not destroy
the nature of the act as a donation inter vivos, unless a 1. Alienations by onerous title such as sale, may be
contrary intention appears. (n) considered a donation to the extent that the value of the
thing sold exceeds the price paid;
DONATION INTER VIVOS SUBJECT TO 2. The article makes the rules of contract directly applicable
SUSPENSIVE CONDITION to onerous donations and remuneratory donations as to the
onerous portions therof;
The article contemplates a situation where the donor intends 3. The remuneratory donations referred to by the article are
the donation to take effect during his lifetime but he imposes the modal donations or those which impose “upon the donee
a suspensive condition which may or may not take place a burden which is less than the value of the thing given”; as
beyond his lifetime. regards that portion which exceeds the value of the burden, it
shall be governed by the provisions on donations;
Art. 734. The donation is perfected from the moment the Q: May an unborn child be a donee? A donor?
donor knows of the acceptance by the donee. (623)
A: An unborn child may be a donee but not a donor.
PERFECTION OF DONATION
As a donee, donations made to conceived and unborn
1. Necessity of acceptance- must be made during the lifetime children may be accepted by those persons who would legally
of the donor; represent them if they were already born.
2. Notice of acceptance – perfection takes place, not from the
time of acceptance by the donee but from the time it is made NOTE: If the conceived child did not become a person, the
known, actually or constructively, to the donor; donation is null and void. An unborn child cannot be a donor
3. Revocation before perfection – once it is perfected it because it is essential for a person to be able to make a
cannot be revoked without the consent of the donee except donation, he must have full civil capacity.
on grounds provided by law;
4. If the donor revokes the donation before learning of the Art. 736. Guardians and trustees cannot donate the
acceptance by the donee, there is no donation. property entrusted to them. (n)
Art. 735. All persons who may contract and dispose of their Guardians and trustees cannot be donors of their ward’s
property may make a donation. (624) properties for the simple reason that they are not the owners
of the same.
Q: What are the requirements to be a donor?
2. Where donation is onerous:
A: The article requires that the donor must have both the:
a. capacity to contract and; The prohibition, however, is not absolute; with respect to the
b. the capacity to dispose of his property in order that trustee, donation is permitted notwithstanding that the
he may make a donation trustee receives nothing in exchange directly, if the donation
is onerous and is beneficial to the benefiaciary,
Q: What is the reason for this?
Art. 737. The donor's capacity shall be determined as of the
A: Donation inter vivos are contractual in nature and are time of the making of the donation. (n)
mode of alienation of property. Moreover, it is a mode of
alienation of property. Q: When is the possession of capacity to contract by the
donor determined?
Q: Explain the concept of capacity under this article.
A: His capacity shall be determined as of the time of the
A: Capacity shall be determined as of the time of the making making of donation. (Art. 737, NCC)
of donation. Making of donation shall be construed to mean Note: Making of donation shall be construed to mean
perfection. perfection.
Q: What is the rule with regard the done? Art. 738. All those who are not specially disqualified by law
therefor may accept donations. (625)
A: All those who are not specially disqualified by law
therefore may accept donations. NOTE: A donee need not be sui juris, with complete legal
capacity to bind himself by contract. As long as he is not
specially disqualified by law, he may accept donations
Art. 739. The following donations shall be void: (8) Conviction of a crime which carries with it the penalty of civil
interdiction. (756, 853, 674a)
(1) Those made between persons who were guilty of Art. 920. The following shall be sufficient causes for the disinheritance of
adultery or concubinage at the time of the donation; parents or ascendants, whether legitimate or illegitimate:
(2) Those made between persons found guilty of the same
(1) When the parents have abandoned their children or induced their
criminal offense, in consideration thereof;
daughters to live a corrupt or immoral life, or attempted against their
(3) Those made to a public officer or his wife, descedants virtue;
and ascendants, by reason of his office.
(2) When the parent or ascendant has been convicted of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants;
In the case referred to in No. 1, the action for declaration of
nullity may be brought by the spouse of the donor or donee; (3) When the parent or ascendant has accused the testator of a crime for
and the guilt of the donor and donee may be proved by which the law prescribes imprisonment for six years or more, if the
preponderance of evidence in the same action. (n) accusation has been found to be false;
Q: What is the reason for this disqualifications? (5) When the parent or ascendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change one already
made;
A: The article is based on considerations of morality and
public policy. The prohibitions mentioned in the article apply (6) The loss of parental authority for causes specified in this Code;
to testamentary provisions and to life insurance.
(7) The refusal to support the children or descendants without justifiable
cause;
NOTE: The term wife in the 3rd paragraph shall be
interpreted to mean spouse so as to include the husband. (8) An attempt by one of the parents against the life of the other, unless
there has been a reconciliation between them. (756, 854, 674a)
Art. 2012 provides that “any person who is forbidden from
Art. 921. The following shall be sufficient causes for disinheriting a spouse:
receiving any donation under Art. 739 cannot be named (1) When the spouse has been convicted of an attempt against the life of
beneficiary of a life insurance policy by the person who the testator, his or her descendants, or ascendants;
cannot make any donation to him, according to said article.”
(2) When the spouse has accused the testator of a crime for which the law
prescribes imprisonment of six years or more, and the accusation has been
Art. 740. Incapacity to succeed by will shall be applicable to found to be false;
donations inter vivos. (n)
(3) When the spouse by fraud, violence, intimidation, or undue influence
cause the testator to make a will or to change one already made;
ABSOLUTE DISQUALIFICATION
(4) When the spouse has given cause for legal separation;
Art. 1028. The prohibitions mentioned in article 739, concerning donations
inter vivos shall apply to testamentary provisions. (n) (5) When the spouse has given grounds for the loss of parental authority;
Art. 919. The following shall be sufficient causes for the disinheritance of (6) Unjustifiable refusal to support the children or the other spouse. (756,
children and descendants, legitimate as well as illegitimate: 855, 674a)
Art. 919.
(1) When a child or descendant has been found guilty of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants;
RELATIVE INCAPACITY
(2) When a child or descendant has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if the Art. 1027. The following are incapable of succeeding:
accusation has been found groundless;
(1) The priest who heard the confession of the testator during his last
(3) When a child or descendant has been convicted of adultery or illness, or the minister of the gospel who extended spiritual aid to him
concubinage with the spouse of the testator; during the same period;
(4) When a child or descendant by fraud, violence, intimidation, or undue (2) The relatives of such priest or minister of the gospel within the fourth
influence causes the testator to make a will or to change one already made; degree, the church, order, chapter, community, organization, or institution
to which such priest or minister may belong;
(5) A refusal without justifiable cause to support the parent or ascendant
who disinherits such child or descendant; (3) A guardian with respect to testamentary dispositions given by a ward in
his favor before the final accounts of the guardianship have been approved,
even if the testator should die after the approval thereof; nevertheless, any
Art. 1033. The cause of unworthiness shall be without effect if the testator Art. 744. Donations of the same thing to two or more
had knowledge thereof at the time he made the will, or if, having known of
different donees shall be governed by the provisions
them subsequently, he should condone them in writing. (757a)
concerning the sale of the same thing to two or more
Art. 741. Minors and others who cannot enter into a contract may become different persons. (n)
donees but acceptance shall be done through their parents or legal
representatives. (626a)
DONATIONS OF THE SAME THING TO
DIFFERENT DONEES
DONATIONS TO MINORS AND OTHERS WITHOUT “DOUBLE DONATION”
CAPACITY TO CONTRACT
The article expressly makes applicable by analogy the rules on
The article does not make any distinction. If the reason for sales of the same thing to two or more different vendees.
requiring acceptance through the parents or legal
representative is the lack of capacity of the donee to give Like in instances of double sale, Article 1544 applies in case of
consent, it is clear that the donee may not validly accept a double donation.
donation although it imposes no burden.
Q: When is there double donation?
In any case, when a formal or written acceptance is required
by the donor, such acceptance must be made by the parents A: When the same thing has been donated to two or more
or legal representative. persons.
1. First to register in good faith The requirement of notification of the donor and notation in
2. No inscription, first to possess in good faith both instruments that such notification has been made is
3. No inscription & no possession in good faith – necessary for the validity and perfection of the donation.
Person who presents oldest title in good faith
Art. 748. The donation of a movable may be made orally or
Justice Vitug & Dean Navarro: This provision is problematic in writing.
as the Civil Code Commission failed to remember that
donation is different form sale. And that the attempt to An oral donation requires the simultaneous delivery of the
donate the property for the second time around, the donor thing or of the document representing the right donated.
would have no right to effect donation as he is no longer the
owner of the property. If the value of the personal property donated exceeds five
thousand pesos, the donation and the acceptance shall be
Art. 745. The donee must accept the donation personally, or made in writing, otherwise, the donation shall be void.
through an authorized person with a special power for the (632a)
purpose, or with a general and sufficient power; otherwise,
the donation shall be void. (630) FORMALITIES FOR DONATION OF
MOVABLES
2. donation and acceptance are in separate Q: What is the standing of the donation where the donor did
instruments not reserved property or assets for himself sufficient for his
support and all his relatives legally dependent upon him?
a. must be in a public instrument or document;
b. the instrument must specify the property donated A: It is valid. It is merely reducible to the extent that the
and the charges, if any, which the donee must support to himself and his relatives is impaired or prejudiced.
satisfy;
c. the acceptance by the donee must be in a public Q: What do you mean by “present property”?
document;
d. it must be done during the lifetime of the donor; A: “Present property” means property which the donor can
e. the donor must be notified in authentic form of the rightfully dispose at the time of the donation.
acceptance of the donation in a separate
instrument; Q: What are the exceptions to this?
f. the fact that such notification has been made must
be noted in both instruments A:
1. donation mortis causa,
2. donation propter nuptias, and
3. onerous donations
CHAPTER 3
EFFECT OF DONATIONS AND LIMITATIONS THEREON Q: May future properties be donated?
Art. 750. The donations may comprehend all the present A: No. The donor is not yet the owner of said property. A
property of the donor, or part thereof, provided he reserves, person cannot give what he does not own.
in full ownership or in usufruct, sufficient means for the
support of himself, and of all relatives who, at the time of NOTE: Future inheritance is future property, but not all future
the acceptance of the donation, are by law entitled to be property is future inheritance. Future inheritance like future
supported by the donor. Without such reservation, the property cannot be disposed of by donation. However,
donation shall be reduced in petition of any person affected. accrued inheritance, even if not yet delivered, may be
(634a) alienated by the heir because hereditary rights are
transmitted from the moment of the death of the decedent.
Art. 751. Donations cannot comprehend future property. (Art. 777, NCC)
By future property is understood anything which the donor Q: What do you mean by relatives?
cannot dispose of at the time of the donation. (635)
A: The law states relatives at the time of the acceptance but
Art. 752. The provisions of Article 750 notwithstanding, no this really refers to relatives at the time knowledge of the
person may give or receive, by way of donation, more than acceptance for before such knowledge, there has been no
he may give or receive by will. perfection as yet of the donation.
Art. 756. The ownership of property may also be donated to 2. where there is no stipulation regarding the payment of
one person and the usufruct to another or others, provided debts:
all the donees are living at the time of the donation. (640a)
The donee is generally not liable to pay the donor’s debts. He
When one person receives the usufruct, it is understood that is responsible therefor only if the donation has been made in
the other donee receives only the naked ownership, not the fraud of creditors which is always presumed when, at the
full ownership. time of the donation, the donor has not left sufficient assets
to pay his debts.
Art. 757. Reversion may be validly established in favor of
only the donor for any case and circumstances, but not in He is not liable beyond the value of the donation received.
favor of other persons unless they are all living at the time
of the donation.
Art. 759. There being no stipulation regarding the payment A: This article applies to all donation inter vivos and not to
of debts, the donee shall be responsible therefor only when mortis causa.
the donation has been made in fraud of creditors.
Q: What is the reason for this article?
The donation is always presumed to be in fraud of creditors,
when at the time thereof the donor did not reserve A: The reason for the article is that the law presumes that the
sufficient property to pay his debts prior to the donation. donor would not have made the donation if he had or knew
(643) he had a child who would naturally be entitled to his affection
and property.
LIABILITY OF DONEE TO PAY DEBTS OF DONOR
The donation cannot be revoked when the child was already
Q: What are the rules provided under Arts. 758 and 759? conceived at the time of the donation, only if the donor was
aware of the conception of his child.
A:
Q: Does this article cover descendants also?
1. where donor imposes obligation upon the donee:
A: The article covers only the appearance of children and not
The donee is liable to pay only debts previously contracted. the descendants. However, although the donation will not be
He is liable for subsequent debts only when there is a revoked, it may be declared inofficious if it impairs the
stipulation to that effect. He is not liable for debts in excess of legitime of the descendant.
Art. 763. The action for revocation or reduction on the In case more than one cause or ground for revocation or
grounds set forth in article 760 shall prescribe after four reduction concur, the period of prescription must run from
years from the birth of the first child, or from his the earliest cause.
legitimation, recognition or adoption, or from the judicial
declaration of filiation, or from the time information was Art. 764. The donation shall be revoked at the instance of
received regarding the existence of the child believed dead. the donor, when the donee fails to comply with any of the
conditions which the former imposed upon the latter.
This action cannot be renounced, and is transmitted, upon
the death of the donor, to his legitimate and illegitimate In this case, the property donated shall be returned to the
children and descendants. (646a) donor, the alienations made by the donee and the
mortgages imposed thereon by him being void, with the
PRESCRIPTION OF ACTION FOR REVOCATION OR limitations established, with regard to third persons, by the
REDUCTION Mortgage Law and the Land Registration Laws.
The donation is revoked ipso jure by operation of law, “by the This action shall prescribe after four years from the
happening” of any of the events mentioned in article 760. noncompliance with the condition, may be transmitted to
the heirs of the donor, and may be exercised against the
Q: Within what period should the action be brought? donee's heirs. (647a)
A: The period to bring an action is four years, and the day FAILURE TO COMPLY WITH CONDITIONS
from which the period shall begin to run depends upon the
cause for the revocation or reduction; Q: What is a condition?
Q: What if the donor dies within the period of prescription? A: Condition actually refers to the obligations, charges, or
burdens imposed by the donor for his benefit or that of a
A: If the donor dies within the period of prescription, the third person.
action is transmitted to his legitimate and illegitimate
children and descendants. What is contemplated is an onerous or modal donation. It
may also refer to a resolutory condition, but not to a
NOTE: The surviving spouse and the ascendants of the donor suspensive condition because if the condition is not fulfilled,
are not included. If subsequent to the donation, more than the donation never becomes effective.
one child was born, the period of prescription is counted
from the birth of the first child. With respect to legitimation, NOTE: Revocation implies that there is an existing donation.
the period of prescription must be counted from the time of
the legitimation (from the celebration of the subsequent The condition must be fulfilled within the period fixed by the
marriage, whether or not the child is recognized by the donor.
parents).
Q: What if the donation does not fix a period?
Q: What is the period of prescription in case of adopted
children? A: If the donation does not fix a period, the court shall
determine such period as may under the circumstances have
A: With respect to adopted children, the period of been probably contemplated by the donor.
prescription runs from the date the judgment of the court
approving the adoption becomes final. Q: What if there was non-fulfillment of the condition?
Q: What is the period of prescription in case of judicial A: In case of non- fulfillment, the property donated reverts to
declaration of filiation? the donor.
A: With respect to judicial declaration of filiation, the period a. Failure of the donee to comply with any condition
of prescription must run from the date when the judgment imposed by the donor will not affect third persons.
declaring filiation becomes final.
NOTE: The donor may file action for specific performance. Art. 766. Although the donation is revoked on account of
ingratitude, nevertheless, the alienations and mortgages
The article is not applicable to onerous donations which are effected before the notation of the complaint for revocation
also governed by the general rules on prescription. in the Registry of Property shall subsist.
Q: Who has the burden of proof in showing that the donee Later ones shall be void. (649)
failed to comply with the obligation?
EFFECT OF REVOCATION ON PRIOR
A: The presumption is that the done has complied with his ALIENATIONS AND MORTGAGES
obligation under the deed of donation. Donor has the burden
of proof that the donee failed to comply with his obligation. In case of revocation of a donation by non – compliance by
the done with any of the conditions imposed by the donor,
NOTE: Unlike the action for revocation or reduction, there is alienations and mortgages made by the donee are void,
no prohibition in art. 764 against the renunciation of the subject only to the rights of innocent third persons.
action by the donor because the condition is purely
contractual in nature. The action may be waived. If the revocation is by reason of ingratitude, the alienations
and mortgages made by the done before the complaint for
The death of the donor or the donee does not bar the action revocation is annotated in the Registry of Property shall
to revoke for failure of the donee to comply with any of the subsist or are valid, later alienations and mortgages shall be
conditions imposed by the donor, provided the prescriptive void.
period has not yet expired.
Art. 767. In the case referred to in the first paragraph of the
Unlike the action under arts. 769 and 770, the action under preceding article, the donor shall have a right to demand
art. 764 is transmissible in favor of the donor’s heirs and from the donee the value of property alienated which he
against the donee’s heirs because the right granted is not cannot recover from third persons, or the sum for which the
personal to the donor nor is the liability of the donee same has been mortgaged.
personal to him.
The value of said property shall be fixed as of the time of
Art. 765. The donation may also be revoked at the instance the donation. (650)
of the donor, by reason of ingratitude in the following cases:
If the property has been lost or deteriorated thru any cause
(1) If the donee should commit some offense against the including a fortuitous event, the donee should respond with
person, the honor or the property of the donor, or of his damages, because as owner, he is supposed to bear the loss
wife or children under his parental authority; or deterioration (res perit domino).
(2) If the donee imputes to the donor any criminal offense,
or any act involving moral turpitude, even though he should Art. 768. When the donation is revoked for any of the
prove it, unless the crime or the act has been committed causes stated in Article 760, or by reason of ingratitude, or
against the donee himself, his wife or children under his when it is reduced because it is inofficious, the donee shall
authority; not return the fruits except from the filing of the complaint.
(3) If he unduly refuses him support when the donee is If the revocation is based upon noncompliance with any of
legally or morally bound to give support to the donor. (648a) the conditions imposed in the donation, the donee shall
return not only the property but also the fruits thereof
REVOCATION BY REASON OF INGRATITUDE which he may have received after having failed to fulfill the
OF THE DONEE condition. (651)
The article does not apply to donations mortis causa and RETURN NY DONEE OF THE FRUITS OR PROPERTY
onerous donations. DONATED
A donation propter nuptias may be revoked by the donor Rules depend upon the causes of revocation or reduction:
when the donee has committed an act of ingratitude. 1. If the cause is the birth, appearance, or adoption of a
child or ingratitude, or inofficiousness of the donation
because the donor did not reserve sufficient means for
Neither can this action be brought against the heir of the Resume of rules on reduction
donee, unless upon the latter's death the complaint has
been filed. (653) GROUNDS PRESCRIPTIO TRANSMISSIBILIT EFFECT OF LIABILITY
N OF ACTION Y OF ACTION REVOCATIO FOR FRUITS
N
Failure of the the action action not donation is the donee is
donor to may be transmissible as reduced to entitled to
reserve brought at the duty to give the the
sufficient any time by support and extent fruits of the
means for the donor or the right to necessary to owner of
support by the receive are provide the
TRANSMISSION OF ACTION FOR REVOCATION relatives personal in nature support property
entitled to (art. 195 Family donated
support Code);
General Rule: The action to revoke a donation by reason of during the
ingratitude is purely personal to the donor and cannot, as a lifetime of the
donor
rule, be transmitted to the heirs. Inofficiousnes 5 years action is donation donee
s transmitted takes effect appropriate
Exceptions: to the donor’s during the s the
heirs as the lifetime of fruits as
1. if the donee killed the donor, the latter’s heirs can ask for donation shall be the donor owner of
revocation; reduced as regard subject to the
the excess at the reduction property
2. the heirs may also do so if the donor dies without having time of only upon
known of the act of ingratitude; the donor’s death his death
with regard
to