PROPERTY

  All things which are, or may be the object of appropriation

  Requisites: (USA)

1.    utility

2.    substantivity or individuality

3.    appropriability

I.

A. IMMOVABLE PROPERTIES

1.    land, buildings, roads and constructions of all kinds adhered to the soil;

2.    trees, plants and growing fruits, while they are attached to the land or form an integral part of
an immovable;

3.    everything attached to an immovable in a fixed manner in such a way that it cannot be

separated therefrom without breaking the material or deterioration of the object;

4.    statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on
lands by the owner of the immovable in such a manner that it reveals the intention to attach them
permanently to the tenements;

5.    machinery, receptacles, instruments or implements intended by the owner of the tenement for
an industry or works which may be carried on in a building or on a piece of land, and which tend
directly to meet the needs of the said industry or works;

Requisites:

1. made by owner
2. industry or works carried on building or on land
3. machines, etc must tend directly to meet needs of the industry or works
4. machines, etc. must be essential and principal elements of the industry.

6.    animal houses, pigeon-houses,

7.    beehives, fishponds or breeding places of similar nature, in case their owner has placed or
preserved them, with the intention to have them permanently attached to the land, and forming a
permanent part of it; the animals in those places are included;

8.    fertilizer actually used on a piece of land;

9.    mines, quarries and slag dumps, while the matter thereof forms part of the bed, and waters
either running or stagnant;

10.  docks and structures which, though floating, are intended by their nature and object to remain
at a fixed place on a river, lake or coast; and

11.  contracts for public works, and servitudes and other real rights over immovable property

 Categories: (NIDA)

1. Real by nature – it cannot be carried from place to place (pars. 1 & 8, Art. 415, Civil Code)
2. Real by incorporation – attached to an immovable in a fixed manner to be an integral part
thereof (pars. 1-3 Art. 415, Civil Code)
3. Real by destination – placed in a n immovable for the utility it gives to the activity carried
thereon (pars. 4-7 and 9 Art. 415, Civil Code)
4. By analogy it is so classified by express provision of law (par. 10, Art. 415, Civil Code)
 

B.MOVABLE PROPERTIES

1.    those movables susceptible of appropriation which are not included in the preceding article;

2.    real property which by any special provision of law is considered as personalty;

3.    forces of nature which are brought under control of science;

4.    in general, all things which can be transported from place to place without impairment of the
real property to which they are fixed;

5.    obligations and actions which have for their object movables or demandable sums; and

6.    shares of stock of agricultural, commercial and industrial entities, although they have real
estate.

TESTS:

a)    By exclusion:  movables are everything not included in Art. 415.

b)    By description: an object is movable if it possesses:

1)    Ability to change location

2)    Without substantial injury to the immovable to which it is attached.

Important Doctrines/principles on immovable and movable properties:

a)    A Building is an immovable even if not erected by the owner of the land.  The only criterion is
union or incorporation with the soil.  (Ladera vs. Hodges, 48 O.G. 4374).

b)    Parties to a contract may by agreement treat as personal properties that which by nature would
be real property; and it is a familiar phenomenon to see things classes as real property for purposes
of taxation which on general principle might be considered personal property (Standard Oil Co. vs.
Jaranillo, 44 Phil 631).

c)     For purposes of attachment and execution and for purposes of the Chattel Mortgage Law,
ungathered products have the nature of personal property. (Sibal vs. Valdez, 50 Phil, 512).

d)    The human body, whether alive or dead, is neither real nor personal property, for it is not even
property at all, in that it generally cannot be appropriated.  Under certain conditions, the body of
a person or parts thereof may be subject matter of a transaction. (See RA No. 349, RA No. 7170, RA
No. 7719).

e)    What is the effect of temporary separation of movables from the immovables to which they
have been attached?

2 Views:

1)        They continue to be regarded as immovables.

2)        Fact of separation determines the condition of the objects thus recovering their
condition as movables. 

* the latter view is supported by Paras and Tolentino who maintains that the failure of the codifiers
to reproduce the provision of the partidas on the matter is an indication that they did not intend
the rule to continue.

f)  A building that is to be sold or mortgaged and which would be immediately demolished may be
considered personal property and the sale or mortgage thereof would be a sale of chattel, or a chattel
mortgage respectively, for the true object of the contract would be the materials.
 

II.

A.    PROPERTY OF PUBLIC DOMINION

  Concept: It is not owned by the state but pertains to the state, which, as territorial sovereign
exercises certain juridical prerogatives over such property.  The ownership of such properties is in
the social group, whether national, provincial or municipal.

  Purpose: To serve the citizens and not the state as a juridical person.

  Kinds:

1. Those intended for public use

2. Those which are not for public use but intended for public service
3. Those intended for the development of the national wealth

  CHARACTERISTICS:

1. Outside the commerce of man

2. Inalienable.  But when no longer needed for public use or service, may be declared patrimonial
property.  In Laurel vs. Garcia (187 SCRA 797), the Supreme Court held that “whether or not
the Roppongi and related properties will eventually be sold is a policy determination where
both the President and Congress must concur”.

3. Cannot be acquired by prescription

4. Not subject to attachment or execution
5. Cannot be burdened with easements

NOTE: They cannot be registered under the land registration law and be the subject of a Torrens title.
The character of public property is not affected by possession or even a Torrens Title in favor of
private persons. (Palanca vs. Commonwealth, 69 Phil. 449). 

B. PATRIMONIAL PROPERTY OF THE STATE

  Property of the State owned by it in its private or proprietary capacity.

  the state has the same rights over this kind of property  as a private individual in relation to his
own private property

C. PROPERTY OF LOCAL GOVERNMENT UNITS (LGUs)

1.    Property for public use – consist of roads, streets, squares, fountains, public waters,
promenades and public works for public service paid for by the LGUs

2.    Patrimonial Property – all other property possessed by LGUs without prejudice to provisions of
special laws

NOTE: In the case of Province of Zamboanga Del Norte vs. City of Zamboanga, the Supreme Court
categorically stated that “this court is not inclined to hold that municipal property held and devoted to
public service is in the same category as ordinary private property.  The classification of municipal
property devoted for distinctly governmental purposes as public should prevail over the Civil Code in
this particular case”.  Here, the Law of Municipal Corporations was considered as a special law in the
context of Article 424 of the NCC.

D.    PROPERTY OF PRIVATE OWNERSHIP

   refers to all property belonging to private persons either individually or collectively and
those belonging to the State and any of its political subdivisions which are patrimonial in
nature
  Muebles or furniture generally has for its principal object the furnishing or ornamenting of a
building.  Note that there are exceptions to this definition and are generally not included as
furniture unless the law or the individual’s declaration include them.

OWNERSHIP

  The right to enjoy, dispose, and recover a thing without further limitations than those
established by law or the will of the owner.

  Rights included:

     1.  Right to enjoy: (PUFA)

a)    to possess (jus possidendi)

b)    to use (jus utendi)

c)     to the fruits (jus fruendi) and accessions

d)    to abuse (jus abutendi)

2. Right to dispose: (DATE)

a)    to destroy

b)    to alienate

c)     to transform

d)    to encumber

3. Right to vindicate: (RP)

a)    pursuit

b)    recovery

4. Right to exclude: (ER)

a)    to enclose, fence and delimit

b)    to repel intrusions even with force

  Characteristics: (EGEIP)

1.    Ownership is Elastic – power/s may be reduced and thereafter automatically recovered upon
the cessation of the limiting rights.

2.    General – the right to make use of all the possibilities or utility of the thing owned, except
those attached to other real rights existing thereon.

3.    Exclusive – there can only be one ownership over a thing at a time.  There may be two or more
owners but ONLY ONE ownership.

4.    Independence – It exists without necessity of any other right

5.    Perpetuity – ownership lasts as long as the thing exists.  It cannot be extinguished by non user
but only by adverse possession.

  Limitations:
 1.    General limitations imposed by the State for its benefit

2.    Specific limitations imposed by law

3.    Limitations imposed by the party transmitting the property either by contract or by will

4.    Limitations imposed by the owner himself

5.    Inherent limitations arising from conflict with other rights

De Facto case of Eminent Domain

  expropriation resulting from the actions of nature as in one case where land becomes part of
one sea.  The owner loses his property in favor of the state without any compensation.

Principle of Self-Help

  right of the owner or lawful possessor to exclude any person from the enjoyment and disposal of
the property by the use of such force as may be necessary to repel or prevent actual or threatened
unlawful physical invasion or usurpation of his property.

  Requisites: (RONA)

1.    reasonable force

2.    owner or lawful possessor is the person who will exercise

3.    no delay in one’s exercise

4.    actual or threatened physical invasion or usurpation

RGENERAL RULE: A person cannot interfere with the right of ownership of another.

REXCEPTION: Doctrine of Incomplete Privilege or State of Necessity (Article 432)

  Requisites: (ID)

1.    Interference necessary

2.    Damage to another much greater than damage to property

LEGAL REMEDIES TO RECOVER POSSESSION OF ONE’S PROPERTY

1.    Personal property: Replevin

  REPLEVIN - remedy when the complaint prays for the recovery of the possession of personal
property.

2.    Real Property:

a. ACCION INTERDICTAL

  Nature: summary action to recover physical or material possession only.  It consists of the

summary actions of:

1.    Forcible entry

  Action for recovery of material possession of real property when a person originally in
possession was deprived thereof by force, intimidation, strategy, threat or stealth
 2.    Unlawful Detainer

  Action for recovery of possession of any land or building by landlord, vendor, vendee, or
other person against whom the possession of the same was unlawfully withheld after the
expiration or termination of the right to hold possession, by virtue of any contract.

Forcible Entry Unlawful

Detainer
As to  when possession became
unlawful
Possession of the Possession is
defendant is inceptively lawful
unlawful from the but becomes illegal
beginning as he from the time
acquires defendant
possession by unlawfully
Force, withholds
intimidation, possession after
strategy, threat the expiration or
or stealth termination of his
right thereto.
As to the necessity of demand
No previous Demand is
demand for the jurisdictional if the
defendant to ground is non-
vacate is payment of rentals
necessary or failure to
comply with the
lease contract

 
As to necessity of proof of prior
physical possession
Plaintiff must Plaintiff need not
prove that he was have been in prior
in prior physical physical possession
possession of the
premises until he
was deprived
thereof by the
defendant
As to when the 1 year period is counted
from
1 year period is 1 year period is
generally counted counted from the
from the date of date of last
actual entry on demand or last
the land letter of demand

           

b. ACCION PUBLICIANA

  Nature: Ordinary civil proceeding to recover the better right of possession, except in cases
of forcible entry and unlawful detainer.  The involved is not possession de facto but possession
de jure.

c. ACCION REIVINDICATORIA

  Nature:  action to recover real property based on ownership.  Here, the object is the
recovery of the dominion over the property as owner.

  Requisites:

1.    Identity of the Property

2.    Plaintiff’s title to the property

Surface Rights
   The owner of parcel of land is the owner of its surface and everything under it.

  The economic utility which such space or subsoil offers to the owner of the surface sets the limit
of the owner’s right to the same.

HIDDEN TREASURE

  Definition: any hidden or unknown deposit of money, jewelry or other precious objects, the
lawful ownership of which does not appear.

RGENERAL RULE: It belongs to the owner of the land, building or other property on which it is found.

REXCEPTIONS: The finder is entitled to ½ provided:

1.    Discovery was made on the property of another, or of the state or any of its political
subdivisions;

2.    The finding was made by chance;

3.    The finder is not a co-owner of the property where it is found;

4.    The finder is not a trespasser;

5.    The finder is not an agent of the landowner;

6.    The finder is not married under the absolute community or the conjugal partnership system
(otherwise his share belongs to the community).

ACCESSION

  The right by virtue of which the owner of a thing becomes the owner of everything that it may
produce or which may be inseparably united or incorporated thereto, either naturally or
artificially.

  Classifications:

1. Accession Discreta – the right pertaining to the owner of a thing over everything produced thereby

Kinds of Fruits

1. natural fruits – spontaneous products of the soil and the young and other products of animals
2. industrial fruits – those produced by lands of any kind through cultivation or labor
3. civil fruits – rents of buildings, price of leases or lands and the amount of perpetual or life
annuities or other similar income

GENERAL RULE: To the owner belongs the natural, industrial, and civil fruits.

EXCEPTIONS: If the thing is: (PULA)

a)    in possession of a possessor in good faith;

b)    subject to a usufruct;

c)     leased or pledged; or

d)    in possession of an antichretic creditor

 
2. Accession Continua – the right pertaining to the owner of a thing over everything that is incorporated
or attached thereto either naturally or artificially; by external forces. 

a.     With respect to real property

i.    accession industrial

  building, planting or sowing

ii.   accession natural

  alluvium, avulsion, change of river course, and formation of islands

b.     With respect to personal property

 i.    adjunction or conjuction

 ii.   commixtion or confusion

 iii   specification

Basic Principles: (GONE BAD)

1.    He who is in good faith may be held responsible but will not be penalized.

2.    To the owner of a thing belongs the extension or increase of such thing.

3.    Bad faith of one party neutralizes the bad faith of the other.

4.    There should be no unjust enrichment at the expense of others.

5.    Bad faith involves liability for damages.

6.    Accessory follows the principal.

7.    Accession exists only if the incorporation is such that separation would either
seriously damage the thing or diminish its value.

Right of Accession with respect to Immovable Property

NOTE:  See TABLES

  Important Doctrines/Principles:

a)    Under Art 448, the landowner may not refuse both to pay for the building and to sell the land
and instead seek to compel the owner of the building to remove the building from the land. He is
entitled to such removal ONLY when, after having chosen to sell the land, the other party fails to
pay for said land. (Ignacio vs. Hilario, 76 Phil. 605)

b)    Should no other arrangement be agreed upon, the owner of the land does not automatically
become the owner of the improvement. (Filipinas Colleges, Inc. vs. Timbang, 106 Phil. 247)

c)     Article 448 is not applicable where a person constructs a house on his own land and then sells
the land, not the building. (Coleongco vs. Regalado, 27 Phil 387)

d)     Article 448 does not apply to cases which are governed by other provisions of law such as co-
ownership, usufruct, agency, lease.

e)     The provision on indemnity in Art. 448 may be applied by analogy considering that the primary
intent of the law is to avoid a state of forced co-ownership especially where the parties in the main
agree that Articles 448 and 546 are applicable and indemnity for the improvements may be paid
although they differ as to the basis of the indemnity. (Pecson vs. CA 244 SCRA 407).
 

ACCESSION NATURAL

1.    Alluvion or alluvium – increment which lands abutting rivers gradually receive as a result of
the current of the waters.

  Concept: it is the gradual deposit of sediment by the natural action of a current of fresh
water (not sea water, the original identity of the deposit being lost.

  Requisites:

a)    the deposit be gradual and imperceptible

b)    that it be made through the effects of the current of the water

c)     that the land where accretion takes place is adjacent to the banks of the river.

NOTES:

 The owners of the lands adjoining the banks of the river (riparian lands) shall own the accretion
which they gradually receive.

 Accretion operates ipso jure. However, the additional area is not covered by a Torrens title and
the riparian owner must register the additional area.

  Doctrines:

a)    Where the deposit is by sea water, it belongs to the state

b)    A gradual change of bed is also governed by the rules of  alluvium (Canas vs. Tuason 5 Phil.
689)

2.    Avulsion – the transfer of a 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 a
definite tenement.

  Requisites:

a)    The segregation and transfer must be caused by the current of a river, creek or torrent.

b)    The segregation and transfer must be sudden or abrupt

c)     The portion of land transported must be known or identified

NOTES:

 The owner must remove the transported portion within two years to retain ownership

 In case of uprooted trees, the owner retains ownership if he makes a claim within 6 months. 
This refers only to uprooted trees and does not include trees which remain planted on a known
portion of land carried by the force of the waters.  In this latter case, the trees are regarded as
accessions of the land through gradual changes in the course of adjoining stream. (Payatas vs.
Tuazon)

 Registration under the Torrens system does not protect the riparian owner against diminution of
the area of his land through gradual changes in the course of adjoining stream ( Payatas vs.
Tuazon).

 
 Alluvium Avulsion
1. gradual and 1. sudden or
imperceptible abrupt process
2. soil cannot be 2. identifiable and
identified verifiable
3. belongs to the 3. belongs to the
owner of the owner from whose
property to which property it was
it is attached detached
4. merely an 4. detachment fol-
attach-ment lowed by
attachment

3.    Change of course of rivers

  Requisites:

a)    There must be a natural change in the course of the waters of the river

b)    The change must be abrupt or sudden

NOTES:

 Once the river bed has been abandoned, the owners of the invaded land become owners of the
abandoned bed to the extent provided by this article. No positive act is needed on their part, as it
is subject thereto ipso jure from the moment the mode of acquisition becomes evident.

 It does not apply to cases where the river simply dries up because there are no persons whose
lands are occupied by the waters of the river.

4.    Formation of Islands 

  RULES ON OWNERSHIP

a.     If formed by the sea:

1)    within territorial waters - State

2)    outside territorial waters – to the first occupant

b. If formed in lakes, or navigable or floatable rivers - State

c. If formed on non-navigable or non-floatable rivers:

1)    if nearer to one margin or bank – to the nearer reparian owner

2)    if equidistant from both banks- to the reparian owners, by halves.

NOTE: There is no accession when islands are formed by the branching of a river; the owner retains
ownership of the isolated piece of land.

Right of Accession with respect to movable property

  Basic Principle:  Accession exists only if separation is not feasible.  Otherwise, separation may
be demanded.

  KINDS (accession continua as to movables):

1. Adjunction

  the union of two things belonging to different owners, in such a manner that they cannot be
separated without injury, thereby forming a single object.
   Requisites

a)     the two things must belong to different owners

b)     that they form a single object, or that their separation would impair their nature

  Kinds:

a.   inclusion or engraftment

b.   soldadura or soldering

c.   escritura or writing

d.   pintura or painting

e.   tejido or weaving

  Tests to determine principal:

a.     the “rule of importance and purpose

b.    that of greater value

c.     that of greater volume

d.     that of greater merits

  Rules:

a)    Adjunction in good faith by either owner:

GENERAL RULE: accessory follows the principal.

EXCEPTIONS if the accessory is much more precious than the principal, the owner of the accessory
may demand the separation even if the principal suffers some injury

b)    Adjunction in bad faith by the owner of the principal

  option of the owner of the accessory:

i)      to recover the value plus damages

ii)     to demand separation plus damages

c)     Adjunction in bad faith by the owner of the accessory

i)      he loses the accessory

ii)     he is liable for damages

  When separation of things allowed:

a.    separation without injury

b.    accessory is more precious than the principal

c.     owner of the principal acted in bad faith

2.  Mixture

  Union of materials where the components lose their identity.

  Kinds:

a.     Commixtion – mixture of solids

 b.    Confusion – mixture of liquids

  Rules:

a.     By the will of both owners or by accident: each owner acquires an interest in proportion to
the value of his material

b.    By one owner in good faith: apply rule(a)

c.     By one owner in bad faith:

i)      he loses all his rights to his own material

ii)     he is liable for damages

3.     Specification

  It is the transformation of another’s material by the application of labor.  The material becomes
a thing of different kind.

  Labor is the principal

  Rules:

a)    Owner of the principal (worker) in good faith:

i)      maker acquires the new thing

ii)     he must indemnify the owner of the material

EXCEPTION:  if the material is more valuable than the resulting thing, the owner of the
material has the option:

1)    to acquire the work,   indemnifying for the labor, or

2)    to demand indemnity for the material

b)    owner of the principal (worker) in bad faith: the owner of the material has the option:

i)    to acquire the result without indemnity

ii)   to demand indemnity for the material plus damages

c)     Owner of the material in bad faith

i)    he loses the material

ii)   he is liable for damages

Adjunction Mixture Specification

1. Involves Involves at May involve
at least 2 least 2 one thing (or
things things more)  but
form is
changed
2. Accessory Co- Accessory
follows the ownership follows the
principal results principal
3. Things Things The new
joined retain mixed or object retains
their nature confused or preserves
may either the nature of
 retain or the original
lose their object.
respective
natures

QUIETING OF TITLE

  It is an equitable action in rem to determine the condition of the ownership or the rights to
immovable property, and remove doubts thereon.

  Requisites:

1.    plaintiff must have a legal or equitable title to, or interest in the real property which is the
subject matter of the action;

2.    there must be a cloud in such title;

3.    such cloud must be due to some instrument, record, claim, encumbrance or proceeding which
is apparently valid but is in truth invalid, ineffective, voidable or unenforceable, and is prejudicial
to the plaintiff’s title; and

4.    plaintiff must return to the defendant all benefits he may have received from the latter, or
reimburse him for expenses that may have redounded to his benefit.

  Prescriptive Period:

1.    plaintiff in possession – imprescriptible

2.    plaintiff not in possession – 10 (ordinary) or 30 years (extraordinary)

Action to quiet
Action to
title
remove a cloud
on title
    PURPOSE
to put an end to to remove a
troublesome possible foundation
litigation in for a future hostile
respect to the claim
property involved
NATURE OF THE ACTION
remedial action Preventive action
involving a present to prevent a future
adverse claim cloud on the title

  The action to quiet title does not apply:

a)    to questions involving interpretation of documents

b)    to mere written or oral assertions of claims; EXCEPT:

i)      if made in a legal proceeding

ii)     if it is being asserted that the instrument or entry in plaintiff’s favor is not what it
purports to be

c)     to boundary disputes

 d)    to deeds by strangers to the title UNLESS purporting to convey the property of the plaintiff

e)    to instruments invalid on their face

f)     where the validity of the instrument involves pure questions of law

Ruinous Buildings and Trees in Danger of Falling:

 As to buildings – the owners is obliged to demolish or execute necessary work to prevent the
building from falling.  Should he fail to do so, the authorities shall order its demolition at the
expense of the owner, or take measures to insure public safety.

 The complainant must show that his property is adjacent to the dangerous construction, or must
have to pass by necessity in the immediate vicinity.

 The owner is responsible for damages to others due to lack of necessary repairs.  However, if the
damage is caused by defects in the construction, then the builder is responsible for the damages.

CO-OWNERSHIP

  Definition:  the right of common dominion which two or more persons have in a spiritual part of
a thing which is not physically divided.

  Concept:  co-ownership exists where the ownership of a thing physically undivided pertains to
more than one person.

  Characteristics:

a)    plurality of subjects (the co-owners)

b)    there is a single object which is not materially divided

c)     there is no mutual representation by the co-owners

d)    it exist for the common enjoyment of the co-owners

e)    it has no distinct legal personality

f)     it is governed first of all by the contract of the parties; otherwise, by special legal
provisions, and in default of such provisions, by the provisions of Title III on co-ownership

  Sources:

1.    Law

2.    Contract

3.    Chance

4.    Occupation

5.    Succession

6.    Testamentary disposition or donation inter vivos

 

Co-ownership Partnership
1. Can be created 1. Can be created
without the only by contract,
formalities of a express or implied
contract
2. Has no juridical or 2. Has juridical
legal personality personality distinct
from the partners
3. Purpose is 3. Purpose is to
collective enjoyment obtain profits
of the thing
4. Co-owner can 4. A partner, unless
dispose of his shares authorized cannot
without the consent dispose of his share
of the others with and substitute
the another as a partner
in his place
transferee
automatically
becoming a co-owner
5. There is no mutual 5. A partner can
representation generally bind the
partnership
6. Distribution of 6. Distribution of
profits must be profits is subject to
proportional to the the stipulation of the
respective interests parties
of the co-owners
7. A co-ownership is 7. Death or
not dissolved by the incapacity dissolves
death or incapacity  the partnership
of a co-owner
8. no public 8. May be made in
instrument needed any form except
even if real property when real property is
is the object of the contributed
co-ownership
9. An agreement to 9. There may be
keep the thing agreement as to a
undivided for a definite term without
period of more than limit set by law
10 years is void

  Rules:

1.    Rights of each co-owner as to the thing owned in common: USBRAP-LDP

a)    To use the thing owned in common

  Limitations:

i)      use according to the purpose for which it was intended

ii)     interest of the co-ownership must not be prejudiced

iii)    other co-owners must not be prevented from using it according  to their own rights

b)    To share in the benefits and charges in proportion to the interest of each. 

NOTE: Any stipulation to the contrary is void.

c)     To the benefits of prescription: prescription by one co-owner benefits all.

d)    Repairs and taxes: to compel the others to share in the expenses of preservation even if
incurred without prior notice.

NOTE: The co-owner being compelled may exempt himself from the payment of taxes and expenses
by renouncing his share equivalent to such taxes and expenses.  The value of the property at the
time of the renunciation will be the basis of the portion to be renounced.

e)    Alterations:  to oppose alterations made without the consent of all, even if beneficial.
 NOTES:

 Alteration is an act by virtue of which a co-owner changes the thing from the state in which
the others believe it should remain, or withdraws it from the use to which they desire it to be
intended.

  Expenses to improve or embellish are decided by the majority

f)     To protest against seriously prejudicial decisions of the majority

g)    Legal redemption: to be exercised within 30 days from written notice of sale of an

undivided share of another co-owner to a stranger

h)    To defend the co-ownership’s interest in court

i)      To demand partition at any time

  Partition is the division between 2 or more persons of real or personal property which they
own in common so that each may enjoy and possess his sole estate to the exclusion of and
without interference from others

GENERAL RULE: Partition is demandable by any of the co-owners as a matter of right at any

time.

EXCEPTIONS:

1)    When there is a stipulation against it; but not to exceed 10 years.

2)    When the condition of indivision is imposed by the donor or testator; but not to exceed
20 years.

3)    When the legal nature of the community prevents partition.

4)    When partition would render the thing unserviceable.

5)    When partition is prohibited by law

6)    When another co-owner has possessed the property as exclusive owner for a period
sufficient to acquire it by prescription.

2.    The following questions are governed by the majority of interests:

a)    Management

  Minority may appeal to the court against the majority’s decision if the same is seriously
prejudicial.

b)    Enjoyment

c)     Improvement or embellishment

3.    Rights as to the ideal share of each co-owner:

a)    Each has full ownership of his part and of his share of the fruits and benefits

b)    Right to substitute another person its enjoyment, EXCEPT when personal rights are involved

c)     Right to alienate, dispose or encumber

d)    Right to renounce part of his interest to reimburse necessary expenses incurred by another co-
owner

e)    Transactions entered into by each co-owner only affect his ideal share.

EXTINGUISHMENT OF CO-OWNERSHIP (CALSTEP)
 1.    consolidation or merger in one co-owner

2.    acquisitive prescription in favor of a third person or a co-owner who repudiates the co-
ownership

3.    loss or destruction of property co-owned

4.    sale of property co-owned

5.    termination of period agreed upon by the co-owners

6.    expropriation

7.    judicial or extra-judicial partition

CONDOMINIUM ACT (R.A. NO. 4726)

CONDOMINIUM

  an interest in real property consisting of a separate interest in a unit in a residential, industrial
or commercial building and an undivided interest in common, directly or indirectly, in the land on
which it is located and in other common areas of the building.

  Any transfer or conveyance of a unit or an apartment, office or store or other space therein,
shall include transfer or conveyance of the undivided interest in the common areas or, in a proper
case, the membership or shareholdings in the condominium corporation: provided, however, that
where the common areas in the condominium project are held by the owners of separate units as
co-owners thereof, no condominium unit therein shall be conveyed or transferred to persons other
than Filipino citizens or corporations at least 60% of the capital stock of which belong to Filipino
citizens, except in cases of hereditary succession.

GENERAL RULE: Common areas shall remain undivided, and there shall be no judicial partition
thereof:

EXCEPTIONS:

1.    When the project has not been rebuilt or repaired substantially to its state prior to its damage
or destruction 3 years after damage or destruction which rendered a material part thereof unfit for
use;

2.    When damage or destruction has rendered ½ or more of the units untenantable and that the
condominium owners holding more than 30% interest in the common areas are opposed to
restoration of the projects;

3.    When the project has been in existence for more than 50 years, that it is obsolete and
uneconomic, and the condominium owners holding in aggregate more than 50% interest in the
common areas are opposed to restoration, remodeling or modernizing;

4.    When the project or a material part thereof has been condemned or expropriated and the
project is no longer viable, or that the condominium owners holding in aggregate more than 70%
interest in the common areas are opposed to the continuation of the condominium regime;

5.    When conditions for partition by sale set forth in the declaration of restrictions duly registered
have been met.

WATERS

  Classification

a)    Waters public per se (water is the principal; the bed follows the character of the water (See
Arts. 502 [1] and 502 [2])

b)    Waters public or private according to their bed (water is accessory to bed)

c)     Waters public by special provision

 

POSSESSION

  Concept: the material holding or control of a thing or the enjoyment of a right.

  Requisites:

1.    occupancy, apprehension, or taking

2.    deliberate intention to possess

3.    by virtue of ones own right

  Degrees:

1.    possession without any title whatsoever

2.    possession with juridical title

3.    possession with just title sufficient to transfer ownership

4.    possession with a title in fee simple

  Classes:

a)     In one’s own name – where possessor claims the thing for himself

b)    In the name of another – for whom the thing is held by the possessor

c)     In the concept of owner – possessor of the thing or right , by his actions, is considered or is
believed by other people as the owner, regardless of the good or bad faith of the possessor

d)    In the concept of holder – possessor holds it merely to keep or enjoy it, the ownership
pertaining to another person; possessor acknowledges in another a superior right which he believes
to be ownership.

NOTE:  None of these holders assert a claim of ownership in himself over the thing but they may be
considered as possessors in the concept of owner, or under claim of ownership, with respect to the
right they respectively exercise over the thing.

e)    In good faith – possessor is not aware that there is in his title or mode of acquisition a defect
that invalidates it

  Requisites:

1.    Ostensible title or mode of acquisition

2.    Vice or defect in the title

3.    Possessor is ignorant of the vice or defect and must have an honest belief that the thing
belongs to him

NOTE:  Gross and inexcusable ignorance of the law may not be the basis of good faith, but possible,
excusable ignorance may be such basis. (Kasilag vs Roque, 69 PHIL 217)

f)      In bad faith – possessor is aware of the invalidating defect in his own title.

NOTES:

 Only personal knowledge of the flaw in one’s title or mode of acquisition can make him a
possessor in bad faith.  It is not transmissible even to an heir.
  Possession in good faith ceases from the moment defects in his title are made known to the
possessor.  This interruption of good faith may take place at the date of summons or that of the
answer if the date of summons does not appear.  However, there is a contrary view that the date
of summons may be insufficient to convince the possessor that his title is defective.

  Presumptions in favor of possessor:

1.    of good faith

2.    of continuity of initial good faith

3.    of enjoyment in the same character in which possession was acquired until the contrary is
proved

4.    of non-interruption in favor of the present possessor

5.    of continuous possession by the one who recovers possession of which he was wrongfully
deprived

6.    of extension of possession of real property to all movables contained therein

  Object of possession:

GENERAL RULE: All things and rights susceptible of being appropriated

EXCEPTIONS:

1.    Res communes

2.    Property of public dominion

3.    Discontinuous servitudes

4.    Non-apparent servitudes

Acquisition of possession:

  Manner

1.    Material occupancy of the thing

2.    Subjection to the action of our will

3.    Proper acts and legal formalities established for acquiring such right.

Conflicts between several claimants:

GENERAL RULE:  Possession cannot be recognized in two different personalities except in case of co-
possession when there is no conflict

  Criteria in case of dispute:

1.    present/actual possessor shall be preferred

2.    if there are two possessors, the one longer in possession

3.    if the dates of possession are the same, the one with a title

4.    if all the above are equal, the fact of possession shall be judicially determined, and in the
meantime, the thing shall be placed in judicial deposit

 
Subject Possessor in Possessor in
good faith bad faith
a.  Fruits a. to possessor a. to owner  
gathered
   
b. b. not b. reimbursed
Cultivation reimbursed to to possessor
Expenses of possessor
gathered
fruits
c. Fruits c. prorated c. to owner
pending and according to
charges time
d. d. indemnity d. no
Production pro rata to indemnity
expenses of possessor
pending (owner’s
fruits option)

i. in money,
or

ii. by
allowing full
cultivation
and
gathering of
all fruits
e. Necessary e. reimbursed e. reimbursed
expenses to possessor; to possessor;
retention no retention
f.. Useful f. reimbursed f. no
expenses to possessor reimbursement
(owner’s
option)

  i. initial cost

  ii. plus value

 may remove
if no
reimburse-
ment, and no
damage is
caused to the
principal by
the removal
g. Ornamen- g. reimburse- g. owner’s
tal expenses ment at option:
owner’s
option:   i. removal, or

  i. removal if   ii. value at

no injury, or time of
recovery
  ii. cost
without
removal
h. Taxes and h. taxes and h. taxes and
charges charges charges

  i. on   i. charged to   i. charged to
capital owner owner

    ii. charged to   ii. charged to

possessor owner
  ii. on fruits
 iii. prorated   iii. to owner
 

  iii. charges
i. Improve- i. no i. no
ments no reimburse- reimburse-
longer ment ment
existing
j. Liability j. only if j. liable in
for acting with every case
accidental fraudulent
 loss or intent or
deterioratio negligence,
n after summons
k. Improve- k. to owner k. to owner
ments due or lawful or lawful
to time or possessor possessor
nature

Possession of movables

  Possession of movables in good faith is equivalent to title.

  Requisites:

a)    possession is in good faith

b)    the owner has voluntarily parted with the possession of the thing

c)     possessor is in the concept of owner

One who has lost or has been unlawfully deprived of it , may recover it from whomsoever
possesses it, ordinarily, without reimbursement.

  Doctrines:

a)     owner of the thing must prove (1)   ownership of the thing and (2) loss or unlawful deprivation;
or bad faith of the possessor

b)     Where the owner acts negligently or voluntarily parts with the thing owned, he cannot recover
it from the possessor

c)     The owner may recover the movable in case of loss or involuntary deprivation; but must
reimburse the price paid if possessor acquired the thing in good faith and at a public sale.

Loss of possession:

1.    By the will of the possessor

a)    Abandonment

b)    Transfer or conveyance

2.    Against the will of the possessor

a)    Eminent domain

b)    Acquisitive prescription

c)     Judicial decree in favor of better right

d)    Possession of another for more than one year

NOTE: this refers to possession de facto where the possessor loses the right to a summary action;
but he may still bring action publiciana or reivindicatoria

e)    By reason of the object

  i. destruction or total loss of the things

  ii. withdrawal from commerce

 
USUFRUCT

  gives a right to enjoy the property of another with the obligation of preserving its form and
substance, unless the title constituting it or the law otherwise provides.

  Characteristics:

a.    Real right

b.    Of temporary duration

c.     To derive all advantages from the thing due to normal exploitation

d.    may be constituted on real or personal property, consumable or non-consumable, tangible

or intangible, the ownership of which is vested in another

e.    transmissible

GENERAL RULE: Usufructuary is bound to preserve the form and substance of the thing in usufruct.

EXCEPTION: Abnormal usufruct whereby the law or the will of the parties may allow the modification
of the substance of the thing.

Usufruct Lease
1. Always a real 1.Generally a
right personal right
2. Person creating 2. Lessor may not
the usufruct should be the owner
be the owner or his
duly authorized
agent
3. May be created 3.Generally created
by law, by contract, by contract
by will of the
testator, or by
prescription
4. As a rule, 4.Lease generally
usufruct covers all refers to uses only
the fruits and all
the uses and
benefits of the
entire property
5. Involves a more 5. Lease involves a
or less passive more active owner
owner who allows or lessor who makes
the usufructuary to the lessee to enjoy
enjoy the object
given in usufruct
6. Pays for ordinary 6.Lessee is not
repairs and taxes on generally under
the fruits obligation to
undertake repairs
or pay taxes

Special Usufructs

a)    of pension or income (Art 570)

b)    of property owned in common (Art. 582)

c)     of cattle (livestock) (Art. 591)

d)    on vineyards and woodlands (Art. 575-576)

e)    on a right of action (Art. 578)

f)     on mortgaged property (Art. 600)

 g)    over the entire patrimony (Art. 598)

h)    over things which gradually deteriorate (Art. 573)

i)      of consumable property (Art 574)

Rights of the Usufructuary

1.     As to the thing and its fruits

a.    To receive and benefit from the fruits

b.    To enjoy any increase through accessions and servitudes

c.     To the half of the hidden treasure he accidentally finds

d.    To lease the thing, generally, for the same or shorter period as the usufruct.

e.    To improve the thing without altering its form and substance

f.     Right to set-off the improvements he may have made on the property against any damage
to the same

g.    To retain the thing until he is reimbursed for advances for extraordinary expenses and taxes
on the capital

h.    To collect reimbursements from the owner for indispensable extraordinary repairs, taxes on
the capital he advanced, and damages caused to him.

9. To remove improvements made by him if the same will not injure the property

2.     As to the usufruct itself

a.    To mortgage the right of usufruct except parental usufruct

b.    To alienate the usufruct

Obligations of the usufructuary:

1.    Before  exercising the usufruct:

a.    To make an inventory of the property

b.    To give a bond, EXCEPT

1)    when no prejudice would result

2)    when the usufruct is reserved by the   donor or parents

3)    in cases of caucion juratoria where the usufructuary, being unable to file the required
bond or security, files a verified petition in the proper court asking for the delivery of the
house and furniture necessary for himself and his family without any bond or security.

  takes an oath to take care of the things and restore them

  property cannot be alienated or encumbered or leased because this would mean

that the usufructuary does not need it.

NOTE: Effects of failure to post bond:

1.    owner shall have the following options:

 a.    receivership of realty, sale of movables, deposit of securities, or investment of money;
OR

b.    retention of the property as administrator

2.    the net product shall be delivered to the usufructuary

3.    usufructuary cannot collect credits due or make investments of the capital without the
consent of the owner or of the court until the bond is given.

2.    During the usufruct:

a.    To take care of the property

b.    To replace with the young thereof animals that die or are lost in certain cases when the
usufruct is constituted on flock or herd of livestock

c.    To make ordinary repairs

d.    To notify the owner of urgent extra-ordinary repairs

e.    To permit works and improvements by the naked owner not prejudicial to the usufruct

f.     To pay annual taxes and charges on the fruits

g.    To pay interest on taxes on capital paid by the naked owner

h.    To pay debts when the usufruct is constituted on the whole patrimony

i.      To secure the naked owner’s or court’s approval to collect credits in certain cases

j.      To notify the owner of any prejudicial act committed by third persons

k.    To pay for court expenses and costs regarding usufruct.

3.    At the termination of the usufruct:

1. To return the thing in usufruct to the owner unless there is a right of retention
2. To pay legal interest on the amount spent by the owner for extraordinary repairs or taxes on
the capital
3. To indemnify the owner for any losses due to his negligence or of his transferees

Extinguishment of Usufruct: (PT2DERM)

1.    Prescription

2.    Termination of right of the person constituting the usufruct

3.    Total loss of the thing

4.    Death of the usufructuary, unless contrary intention appears

5.    Expiration of the period or fulfillment of the resolutory condition

6.    Renunciation of the usufructuary

7.    Merger of the usufruct and ownership in the same person

EASEMENT OR SERVITUDE

  Encumbrance imposed upon an immovable for the benefit of a community or one or more
persons or for the benefit of another immovable belonging to a different owner.
 

  Concept:  it is a real right, constituted on the corporeal immovable property of another, by

virtue of which the owner of the latter has to refrain from doing or must allow something to be
done on his property, for the benefit of another person or tenement.

  Characteristics:

a)    It is a real right but will affect third persons only when duly registered

b)    It is enjoyed over another immovable, never on one’s own property

c)     It involves two neighboring estates (in case of real easements)

d)    It is inseparable from the estate to which it is attached, and, therefore, cannot be alienated
independently of the estate

e)    It is indivisible for it is not affected by the division of the estate between two or more persons

f)     It is a right limited by the needs of the dominant owner or estate, without possession

g)    It cannot consist in the doing of an act unless the act is accessory in relation to a real easement

h)    It is a limitation on the servient owner’s rights of ownership for the benefit of the dominant
owner; and, therefore, it is not presumed

  Classification:

1.    As to its exercise:

a)Continuous Easements – those the use of which is, or may be, incessant without the
intervention of any act of man

b) Discontinuous Easements – those which are used at intervals and depend upon the acts of
man

2.    As to the indication of their existence:

a)    Apparent Easements – those which are made known and are continually kept in view by
external signs that reveal the use and enjoyment of the same

b)    Non-apparent Easements – those which show no external indication of their existence

3.    As to duty of servient owner

a)     Positive – the servient owner must allow something to be done in his property or do it
himself.  These are called servitudes of intrusion and or/service”

b)     Negative – the servient owner must refrain from doing something which he could lawfully
do if the easement did not exist

         

Easement Lease
1. Real right, Real right only when
whether registered it is registered, or
or not when its subject
matter is real
property and the
duration exceeds
one year
2. Imposed only on May involve either
real property real or personal
 3. There is a limited Limited right to
right to the use of both the possession
real property of and use of another’s
another but without property
the right of
possession

Easement Usufruct
1. Imposed only on May involve either
real property real or personal
property
2. Limited to Includes all the uses
particular or and the fruits of the
specific use of the property
servient estate
3. A non-possessory Involves a right of
right over an possession in an
immovable immovable or
immovable
4. Not extinguished Extinguished by the
by the death of the death of the
dominant owner usufructuary

  Modes of Acquisition: (PDFAT)

1. by prescription of 10 years (continuous and apparent easements)

2. by deed of recognition
3. by final judgment
4. by apparent sign established by the owner of two adjoining estates
5. by title

Dominant Owner

  Rights

1. To exercise all the rights necessary for the use of the easement
2. To make on the servient estate all the works necessary for the use and preservation of the
servitude
3. To renounce the easement if he desires to exempt himself from contribution to necessary
expenses
4. To ask for mandatory injunction to prevent impairment of his use of the easement

  Obligations:

1. Cannot  render the easement or render it more burdensome

2. Notify the servient owner of works necessary for the use and preservation of the servitude
3. Choose the most convenient time and manner in making the necessary works as to cause the
least inconvenience to the servient owner
4. Contribute to the necessary expenses if there are several dominant estates

Servient Owner

  Rights:

1. To retain ownership and possession of the servient estate

2. To make use of the easement, unless there is agreement to the contrary
3. To change the place or manner of the easement, provided it be equally convenient

  Obligations:
 1. Cannot impair the use of the easement
2. Contribute to the necessary expenses in case he uses the easement, unless there is an
agreement to the contrary

Extinguishment of Easements:

(REMAIN BREW)

1. Redemption agreed upon
2. Expiration of the term or fulfillment of the resolutory condition
3. Merger of ownership of the dominant and servient estate
4. Annulment of the title to the servitude
5. Permanent Impossibility to use the easement
6. Non-user for 10 years

a.    discontinuous: counted from the day they ceased to be used

b.    continuous: counted from the day an act adverse to the exercise takes place

7. Bad condition - when either or both estates fall into such a condition that the easement could
not be used
8. Resolution of the right to create the servitude, i.e. in case of pacto de retro, when the
property is redeemed
9. Expropriation of the servient estate
10. Waiver by the dominant owner

EASEMENT FOR WATERING CATTLE

 This is really a combined easement for drawing of water and right of way

  Requisites:

a)    must be imposed for reasons of public use

b)    must be in favor of a town or village

c)     indemnity must be paid

 EASEMENT OF AQUEDUCT

  The right arising from a forced easement by virtue of which the owner of an estate who desires
to avail himself of water for the use of said estate may make such waters pass through the
intermediate estate with the obligation of indemnifying the owner of the same and also the owner
of the estate to which the water may filter or flow.

  Character:  apparent and continuous

  Requisites:

a)    dominant owner must prove that he has the capacity to dispose of the water

b)    that the water is sufficient for the intended use

c)     that the course is most convenient, and least onerous to the 3 rd person

d)    payment of indemnity

RIGHT OF WAY

  The right granted to the owner of an estate which is surrounded by other estates belonging to
other persons and without an adequate outlet to a public highway to demand that he be allowed a
passageway throughout such neighboring estates after payment of proper indemnity
   Requisites:

1. Claimant must be an owner of enclosed immovable or one with real right

2. There must be no adequate outlet to a public highway
3. Right of way must be absolutely necessary
4. Isolation must not be due to the claimant’s own act
5. Easement must be established at the point least prejudicial to the servient estate
6. Payment of proper indemnity

  it is the needs of the dominant property which ultimately determine the width of the passage,
and these needs may vary from time to time (Encarnacion vs. CA, 195 SCRA 72).

  Special cause of extinction:  the opening of a public road, or joining the dominant tenement to
another with exit on a public road.

NOTE: the extinction in NOT automatic. There must be a demand for extinction coupled with
tender of indemnity by the servient owner.

PARTY WALL

  a common wall which separates 2 estates  built by common agreement at the dividing line such
that it occupies a portion of both estates on equal parts.

Party Wall Co-ownership

1. Shares of parties Shares of the co-
cannot be owners can be
physically divided and
segregated but they separated
can be physically physically but
identified before such
division, a co-owner
cannot point to any
definite portion of
the property as
belonging to him
2. No limitation as None of the co-
to use of the party owners may use the
wall for exclusive community
benefit of a party property for his
exclusive benefit
3. Owner may free Partial renunciation
himself from is allowed
contributing to the
cost of repairs and
construction of a
party wall by
renouncing all his
rights thereto

  Presumptions of existence (juris tantum):

1. in adjoining walls of buildings, up to common elevation

2. in dividing walls of gardens and yards (urban)
3. in dividing fences, walls and live hedges of rural tenements
4. in ditches or drains between tenements

  Rebuttal of presumption:

1. title
2. by contrary proof:
3. by signs contrary to the existence of the servitude (Arts. 660 & 661)

NOTE: if the signs are contradictory, they cancel each other

 
   Rights of part owners:

1. to make use of the wall in proportion to their respective interests, resting buildings on it or
inserting beams up to one-half of the wall’s thickness
2. to increase the height of the wall

a.    at his expense

b.    upon payment of proper indemnity

c.     to acquire half interest in any increase of thickness or height, paying a proportionate
share in the cost of the work and of the land covered by the increase

  Obligations of each part-owners:

1. to contribute proportionately to the repair and maintenance unless he renounces his part-
ownership
2. if one part owner raises  the height of the wall, he must:

a.    bear the cost of maintenance of the additions

b.    bear the increased expenses of preservation

c.     bear the cost of construction

d.    give additional land, if necessary, to thicken the wall

LIGHT AND VIEW

1.    Easement of Light (jus luminum) - right to admit light from the neighboring estate by virtue of
the opening of a window or the making of certain openings.

  Requisites:

1. opening must not be greater than 30 centimeters squared, made on the ceiling or on the wall;
and
2. there must be an iron grating

2.    Easement of view (jus prospectus) – the right to make openings or windows, to enjoy the view
through the estate of another and the power to prevent all constructions or work which would
obstruct such view or make the same difficult. It necessarily includes easement of light

Restrictions on openings in one’s own wall when contiguous (less than 2m) to another’s tenement:

1.    it cannot exceed 1 foot sq. (30 cm each side)

2.    openings must be at the height of the joists, near the ceiling (Choco vs. Santamaria, 21 Phil
132)

3.    the abutting owner may:

a.    close the openings if the wall becomes a party wall

b.    block the light by building or erecting his own wall unless a servitude is acquired by
title or prescription

c.     ask for the reduction of the opening to the proper size

Restrictions as to views

1.    Direct views: the distance of 2 METERS between the wall and the boundary must be observed
 2.    Oblique views: (walls perpendicular or at an angle to the boundary line) must not be less than
60cm from the boundary line to the nearest edge of the window

NOTE: Any stipulation permitting lesser distances is void.

Modes of acquisition

1.    by title

2.    by prescription

1. positive – counted from the time of the opening of the window, if it is through a party wall
2. negative – counted from the formal prohibition on the servient owner.

NOTE: mere non-observance of distances prescribed by Art. 670 without formal prohibition, does not
give rise to prescription             

VOLUNTARY EASEMENTS

  Constituted by the will of the parties or of a testator.

  The owner possessing capacity to encumber property may constitute voluntary servitude.  If
there are various owners, ALL must consent; but consent once given is not revocable

  Voluntary easements are established in favor of:

1. predial servitudes:

a.    for the owner of the dominant estate

b.    for any other person having any juridical     relation with the dominant estate, if the
owner ratifies it.

2. personal servitudes: for anyone capacitated to accept.

NUISANCE

  Any act, omission, establishment, business or condition of property or anything else

which: (ISAHO)

1. Injures/endangers the health or safety of others;

2. Shocks, defies or disregards decency or morality;
3. Annoys or offends the senses;
4. Hinders or impairs the use of property; or
5. Obstructs or interferes with the free passage to any public highway or street, or body of water.

  Classes:

1. Per se – nuisance at all times and under all circumstances regardless of location and
surrounding.
2. Per accidens – nuisance by reason of circumstances, location, or surroundings.
3. Public – affects the community or a considerable number of persons.
4. Private – affects only a person or a small number of persons.

Doctrine of Attractive Nuisance:

  One who maintains on his premises dangerous instrumentalities or appliances of a character

likely to attract children in play and who fails to exercise ordinary care to prevent children from
playing therewith or resorting thereto is liable to a child of tender years who is injured thereby,
even if the child is technically a trespasser in the premises.

 
Remedies against public nuisance: (PCE)

1. Prosecution under the RPC or local ordinance

2. Civil Action
3. Extrajudicial Abatement

Remedies against private nuisance: (CE)

1. Civil Action
2. Extrajudicial Abatement

Extrajudicial Abatement

  Requisites:

1. nuisance must be specially injurious to the person affected;

2. no breach of peace or unnecessary injury must be committed;
3. prior demand;
4. prior demand has been rejected;
5. approval by district health officer and assistance of local police; and
6. value of destruction does not exceed P3,000.

THEORY OF MODE AND TITLE

  MODE is the specific cause which gives rise to them, as the result of the presence of a special
condition of things, of the aptitude and intent of persons, and of compliance with the conditions
established by law. This is the proximate cause of the acquisition.

  TITLE is the juridical justification for the acquisition or a transfer of ownership or other real
right.  This is the remote cause of the acquisition.

DIFFERENT MODES (and TITLES) of ACQUIRING OWNERSHIP

Modes of Titles of
acquiring acquiring
ownership ownership
  A. Original Modes
1. Occupation 1. Condition of
being without
known owner
2. Work which 2. Creation,
includes discovery or
Intellectual invention
creation
B. Derivative modes
3. Law 3. Existence of
required
 conditions
4.  Tradition 4.  Contract of the
parties
5.  Donation 5.  Contract of the
parties
6.  Prescription 6.  Possession in
the concept of
owner
7. Succession 7. Death

OCCUPATION

  a mode of acquiring ownership by the seizure of things corporeal which have no owner, with the
intention of acquiring them, and according the rules laid down by law.

  Requisites:

1. there must be seizure of a thing

2. the thing seized must be corporeal personal property
3. the thing must be susceptible of appropriation by nature
4. the thing must be without an owner
5. there must be an intention to appropriate

  Specific instances:

1. hunting and fishing

2. finding of movables which do not have an owner
3. finding of abandoned movables
4. finding of hidden treasure

5. catching of swarm of bees that has escaped from its owner, under certain conditions
6. catching of domesticated animals that have escaped from their owners, under certain
conditions
7. catching of pigeons without fraud or artifice
8. transfer of fish to another breeding place without fraud or artifice

TRADITION/DELIVERY

  a mode of acquiring ownership as a consequence of certain contracts, by virtue of which, the
object is placed in the control and possession of the transferee, actually or constructively.

  Kinds:

1. Real Tradition - actual delivery

2. Constructive Tradition

a.    traditio symbolica – parties make use of a token or symbol to represent the thing
delivered
 b.    traditio longa manu – by  mere consent of the parties if the thing sold cannot be
transferred to the possession of the vendee at the time of the sale

c.     traditio brevi manu – when the vendee already has possession of the thing sold by
virtue of another title

d.    traditio constitutum possessorium – when the vendor continues in possession of the

thing sold not as owner but in some other capacity

3.  Quasi-tradition – exercise of the right of the grantee with the consent of the grantor

4. Tradicion por ministerio de la ley – delivery by operation of law

6. Tradition by public instrument

  Requisites:

1. right transmitted should have previously existed in the patrimony of the grantor

2. transmission should be by just title

3. grantor and grantee should have intention and capacity to transmit and acquire
4. transmission should be manifested by some act which should be physical, symbolical or legal

DONATION

  an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another
who accepts it

  Requisites: CIDA

1. donor must have capacity to make the donation

2. he must have donative intent (animus donandi)
3. there must be delivery
4. donee must accept or consent to the donation

  Essential features/elements of a true donation:

a)    Alienation of property by the donor during his lifetime, which is accepted

b)    Irrevocability by the donor

c)     Intention to benefit the donee (animus donandi)

d)    Consequent impoverishment of the donor (diminution of his assets)

  Classification:

1.    As to effectivity:

1. inter vivos
2. mortis causa
3. propter nuptias

2.    As to perfection/extinguishment:

1. pure
2. with a condition
 3. with a term

3.    As to consideration:

1. simple - gratuitous
2. remuneratory or compensatory – made on account of donee’s merits
3. modal – imposes upon the donee a burden which is less than the value of the thing donated

Donation Inter Donation Mortis

Vivos Causa
1. Takes effect Takes effect upon
independently of the death of the
the donor’s death donor

 
2. Title conveyed Title conveyed upon
to the donee donor’s death
before the donor’s
death  
3. Valid if donor Void if donor survives
survives donee donee
4. Generally irrevo- Always revocable
cable during
donor’s lifetime  
5. Must comply Must comply with the
with the formalities required
formalities by law for the
required by Arts. execution
748 and 749 of the
Code Of wills

Donations prohibited by law:

1.    Made by persons guilty of adultery or concubinage at the time of donation;

2.    Made between persons found guilty of the same criminal offense in consideration thereof;

3.    Made to a public officer or his/her spouse, descendants or ascendants in consideration of

his/her office;

4.    Made to the priest who heard the confession of the donor during the latter’s last illness, or the
minister of the gospel who extended spiritual aid to him during the same period;

5.    Made to relatives of such priest, etc. within the 4 th degree, or to the church to which such
priest belongs;

6.    Made by a ward to the guardian before the approval of accounts;

7.    Made to an attesting witness to the execution of donation, if there is any, or to the spouse,
parents, or children, or anyone claiming under them.

8.    Made to a physician, surgeon, nurse, health officer or druggist who took care of the donor
during his/her last illness;

9.    Made by individuals, associations or corporations not permitted by law to make donations; and

10.  Made by spouses to each other during the marriage or to persons of whom the other spouse is a
presumptive heir.

Forms of donations:

1.     Donations of movable property:

a.    With simultaneous delivery of property donated:

               i.it may be oral/written – P5,000 or less;

             ii.if value exceeds P5,000 – written in public or private document

b.    Without simultaneous delivery:

  the donation and acceptance must be written in a public or private instrument,

regardless of value

2.     Donation of immovable property:

1. must be in a public instrument specifying the property donated and the burdens assumed by
donee, regardless of value
2. acceptance must be either:

              i.        in the same instrument; or

             ii.        in
another public instrument, notified to the donor in authentic form, and noted
in both deeds

NOTE: Expression of gratitude to the donor without express acceptance was held a sufficient
acceptance (Cuevas vs Cuevas)

LIMITATIONS ON DONATION OF PROPERTY

1. Future property cannot be donated.

2. Present property that can be donated:

a)    if the donor has forced heirs: he cannot give or receive by donation more than he can give
of receive by will

b)    if the donor has no forced heirs: donation may include all present property provided he
reserves in full ownership or in usufruct:

1)    the amount necessary to support him, and

2)    those relatives entitled to support from him

3)    property sufficient to pay the donor’s debt contracted prior to the donation.

3. Donation should not prejudice creditors

4. Donee must reserve sufficient means for his support and for his relatives which are entitled to
be supported by him.

EFFECTS OF DONATION

1.    donee may demand the delivery of the thing donated

2.    donee is subrogated to the rights of the donor in the property

3.    in donations propter nuptias, the donor must release the property from encumbrances, except
servitudes

4.    donor’s warranty exists if

1. expressed
2. donation is propter nuptias
3. donation is onerous
4. donor is in bad faith

5.    when the donation is made to several donees jointly, they are entitled to equal portions,
without accretion, unless the contrary is stipulated
 

Payment of the donor’s debt by the donee

1.    If there is express stipulation: the donee is to pay only debts contracted before the donation, if
not otherwise specified; but the donee answers only up to the value of the property donated, if no
stipulation is made to the contrary

2.    If there is no stipulation: the donee is answerable for the debts of the donor only in case of
fraud against creditors.

ACTS OF INGRATITUDE

1.    If the donee should commit some offense against the person, honor or property of the donor, or
of his wife or children under his parental authority

2.    If the donee imputes to the donor any criminal offense, or any act involving moral turpitude,
even though he should prove it, unless the crime or act has been committed against the donee
himself, his wife or children under his authority

3.    Refusal to support the donor

PRESCRIPTION

  Kinds:

1.    Acquisitive prescription - one acquires ownership and other real rights through the lapse of time
in the manner and under the conditions laid down by law.

1. Ordinary acquisitive prescription: requires possession of things in good faith and with just title
for the time fixed by law
2. Extraordinary acquisitive prescription: acquisition of ownership and other real rights without 
need of title or of good faith or any other condition

  Requisites:

1)    capacity to acquire by prescription

2)    a thing capable of acquisition by prescription

3)    possession of thing under certain conditions

4)    lapse of time provided by law

2.    Extinctive Prescription – rights and actions are lost through the lapse of time in the manner
and under the conditions laid down by law.

Acquisitive Extinctive
prescription prescription
1. relationship 1. one does not look
between the to the act of the
occupant and the possessor but to the
land in terms of neglect of the
possession is capable owner
of producing legal
consequences; it is
the possessor who is
the actor
2. requires possession 2. requires inaction
by a claimant who is of the owner or
not the owner neglect of one with
a right to bring his
action
3. applicable to 3. applies to all
 ownership and other kinds of rights,
real rights whether real or
personal
4. vests ownership or 4. produces the
other real rights in extinction of rights
the occupant or bars a right of
action
5. results in the 5.  results in the loss
acquisition of of a real or personal
ownership or other right, or bars the
real rights in a person cause of action to
as well as the loss of enforce said right
said ownership or real
rights in another
 
6. can be proven 6. should be
under the general affirmatively
issue without its pleaded and proved
being affirmatively to bar the action or
pleaded claim of the adverse
party

Period of Prescription

Movables Immovables
1. Good Faith
4 years 10 years
2. Bad Faith
8 years 30 years

Rules on Computation of Period:

1.  The present possessor may complete the period necessary for prescription by tacking his
possession to that of his grantor or predecessor

2.  It is presumed that the present possessor who was also the possessor at a previous time, has
continued to be in possession during the intervening time, unless there is proof to the contrary

3.  The first day shall be excluded and the last day included

Persons Against Whom Prescription runs:

1.    Minors and other incapacitated persons who have parents, guardians or other legal
representatives

2.    Absentees who have administrators

3.    Persons living abroad who have managers or administrators

4.    Juridical persons, except the state and its subdivision

Persons against whom prescription does NOT run:

1.    Between husband and wife, even though there be separation of property agreed upon in the
marriage settlements or by judicial decree.

2.    Between parents and children, during the minority or insanity of the latter

3.    Between guardian and ward during the continuance of the guardianship

 
 

Prescriptive Actions   Prescriptive period Actions

period
       

a) Imprescriptible   to declare an g) 4 YEARS  action to revoke

inexistent or void donations due to
contract non-compliance of
conditions
  to quiet title
 action to
  to demand a rescind partition of
right of way deceased’s estate
on account of
lesion
  to bring an
action for
abatement  of  action to claim
public nuisance rescission of
contracts
  to demand
partition in co-  annulment of
ownership contracts for vice
of consent
  to enforce a
trust  actions upon a
quasi-delict
  probate of a
will  action to revoke
or reduce
donations based on
  to recover birth, appearance
possession of a or adoption of a
registered land child
under the Land
Registration Act
by the registered  actions upon an
owner injury to the rights
of the plaintiff
(not arising from
contract)
       

b) 30 YEARS  real actions h)  3 YEARS  actions under

over immovables the eight hour
(but not labor law
foreclosure)
without prejudice  actions to
to the acquisition recover losses in
of ownership or gambling
real rights by
acquisitive
prescription money claims as
a consequence of
employer-
employee
relationship

 action to
impugn legitimacy
of a child if the
husband or his
heirs reside abroad
       

c)  10 YEARS  actions upon a i)  2 YEARS  action to

written contract impugn legitimacy
of a child if the
 actions upon husband or his
an obligation heirs are not
created by law residing in the city
or municipality of
birth
 actions upon a
judgment from
the time
judgment
 becomes final

 actions among
co-heirs to
enforce warranty
against eviction in
partition

 Mortgage
action
         

d)  8 YEARS  action to j)  1 YEAR   action to

recover movables impugn legitimacy
without prejudice of a child if the
to acquisition of husband or his
title for a shorter heirs are residing
period or to the in the city or
possessors title municipality of
under Arts. 559, birth
1505 and 1133
  forcible entry
and unlawful
detainer

 Defamation

 Revocation of
donation on the
ground of 
ingratitude

 Rescission or for
damages if
immovable is sold
with an apparent
burdens or
servitude

 
         

 action for
warranty of
solvency in
assignment of
credits

 actions for loss

or damage to
goods under the
COGSA
       

e)  6 YEARS  actions upon k) 6 MONTHS  actions for

an oral (verbal) warranty against
contract hidden defects or
encumbrances over
 actions upon a the thing sold
quasi-contract
       

f)  5 YEARS  action for l) 40 DAYS  redhibitory

annulment of action based on
marriages (except faults or defects of
on the ground of animals
insanity) and for
legal separation
counted from the
occurrence of the
cause

 actions against
the co-heirs for
warranty of
solvency the
debtor in credits
assigned in
 partition

 action for the

declaration of the
incapacity of an
heir (devisee or
legatee) to
succeed)

 all other
actions whose
periods are not
fixed by law,
counted from the
time the right of
action accrues