Property Part 4

CONCEPT OF NUISANCE
Nuisance is anything that is harmful, anything that is annoying, or anything that offends
decency or morality or anything that hinders or impairs the use of property or any obstruction
to the free flow of passage in any public highway or street is a nuisance.

Kinds of Nuisance
In nuisance, ang importante konsepto lang naman, the kinds of nuisance.
First, into public and private nuisance.
We are classifying nuisance into public and private depending on the gravity of its effects. If the
nuisance affects a greater number of persons, it will be classified as a public nuisance.
On the other hand, if the nuisance especially affects only a particular person or group of
persons the nuisance is classified as private nuisance.
But the most important classification of nuisance at least for purposes of the bar examination is
the classification of nuisance into per se and into per accidens. From the point of view of their
susceptibility to summary abatement, a nuisance is classified either as per se or nuisance per
accidens.
What is a nuisance per se? A nuisance is classified as a nuisance per se if it is always a nuisance
under any and all conditions if it will always be in nuisance then it is classified as nuisance per
se. On the other hand, if a certain nuisance will only become a nuisance depending on the
situation to which it is to be applied depending, for example, on the location, depending on the
time. If it is not always nuisance but will only become a nuisance depending on the situation to
which it is to be applied, then it is merely a nuisance per accidens.
What is the importance of the distinction? For purposes of summary abatement, it is a basic
rule that it is only a nuisance per se that can be subjected to summary abatement without need
of judicial proceedings. On the other hand, if a nuisance is merely per accidens, not always a
nuisance but it will only become a nuisance depending on the situation to which it is to be
applied. So therefore, there is a need for a judicial determination that it is indeed nuisance and
it is only the court now which can order its abatement. A nuisance per accidens is not subject to
summary abatement. Those are the basic rules.
Now let us infuse certain complexities. In relation to the concept of nuisance, it is in relation to
the exercise of the LGU of its police power, we may encounter problem in applying the concept
of movie science if in the exercise of its police power, the LGU will cause the prohibition of a
certain act, a certain property, or a certain business by way of an ordinance and in the name of
police power. That is actually summary abatement. If the nature, if the purpose is prohibition,
that is summary abatement and the ordinance will only be valid if the property the act or the
undertaking that is prohibited is in the nature of nuisance per se. Meaning the LGU in the guise
of its exercise of police power cannot prohibit a property an undertaking or an act or a business
or enterprise without need of judicial determination if it is not a nuisance per se. Only a
nuisance per se can be the subject matter of summary abatement even if the same is in the
guise of the exercise of police power.
Let us cite examples. In one case involving the City of Manila. The City of Manila passed an
ordinance prohibiting the operation of motels and saunas in the Malate and Ermita area in
order to prevent prostitution. So the ordinance is in the exercise of the LGU’s police power but
nonetheless the ordinance prohibited the operation of motels and saunas in the Malate and
Ermita area. So that ordinance called for the closure of existing establishments which are
saunas and motels in the Malate and Ermita area. Is the ordinance valid? The prohibition of
operation of saunas and motels in the Malate and Ermita area is a summary abatement
because the effect of the ordinance is that there will be closures of those establishments
without judicial proceedings so can that be done? The Supreme Court ruled that the closure,
the prohibition of the operation of the saunas and motels in the Malate and Ermita area is in
the nature of summary abatement. Even if the ordinance is in the guise of the exercise of police
power of the state of the LGU but that cannot be validly done by the LGU by way of an
ordinance considering that motels and saunas are not nuisances per se. Only a nuisance per se
can be subjected to summary abatement but motels and saunas are legitimate businesses so in
order for them to be declared nuisance there is a need for a judicial determination that they are
indeed the nuisance and it is only the court which can order their summary abatement.
In another case, in the City of Louisiana, an ordinance was passed calling for the creation of a
centralized grand terminal just within the boundary of the city limits and that ordinance also
called for the closure of existing terminals within the city. The Supreme Court also rule in that
case that the effect of that ordinance is summary abatement of existing terminals within the
city limits and since terminals are not nuisances per se because they are legitimate business
enterprises, legitimate undertakings. The ordinance which calls for the closure of existing
terminals within the city is not a valid exercise of police power because the terminals are not
nuisances per se. So there is a need for judicial determination that they are indeed nuisance.
In a relatively recent case that happened in Pandacan, there was a socio-civic organization that
donated a basketball court though it is merely a half court to a certain barangay. But the Chief
Executive, the Brgy Captain of that barangay caused the closure of the court because allegedly
that is the source that is always the source of the breach of peace in the barangay. Aside from
ordering the closure of the court, the Chairman caused also the destruction of the basketball
court. When the Chairman was sued for violation of the Anti-Graft, it was the defense of the
Chairman that he caused the destruction of the basketball court because it was a nuisance. The
Supreme Court ruled that the destruction of the basketball court was in the nature of summary
abatement and since the basketball court was not a nuisance per se, the same cannot be validly
subjected to summary abatement.
Let us compare those cases with the case of Aquino v. Municipality of Malay, Aklan. In the case
of Aquino v. Municipality of Malay, Aklan, the Municipality declared a certain area in Boracay
no build zone. But Aquino filed for a permit for the construction of a hotel located inside the no
build zone. So, the Municipality did not act on the application of Aquino for the construction of
the hotel, but Aquino pushed through with the construction of the hotel. When the
Municipality learned of the existence of the illegal structure which was constructed without the
necessary building permit issued by the municipality, the municipal mayor ordered the
demolition of the illegal structure. But Aquino contended that the order of demolition by the
mayor is in the nature of summary abatement and that is not valid considering that the
operation of the hotel is a legitimate business which is not a nuisance per se. But the Supreme
Court ruled in that case that the illegal structure was being demolished not because it is a
nuisance but because the construction was in violation of the requirement of the National
Building Code that before a building can be constructed there must first be a building permit to
be issued by the city or municipality and the chief executive of the city or municipality, the
mayor was granted authority under the Local Government Code to cause the demolition of
illegal structure erected in violation of the provisions of the National Building Code.
So, in that case of Aquino v. Municipality of Malay, Aklan, the concept of nuisance is not
important.

EASEMENT and SERVITUES

Let us discuss the concept of easement.
Easement and servitudes are referring to the same concept but viewed from different
perspectives. From the point of view of the right, the concept is referred to as easement. So
easement is the right that is being enjoyed over the servient estate. But viewed from the point
of view of encumbrance or obligation imposed, the concept is referred to as servitude. So,
servitude is the encumbrance that is imposed upon the servient estate.
In easement or servitude, there is always an immovable property which bears the burden or the
encumbrance and we refer to that immovable property as the servient estate. So, from the
point of view of easement, easement is meant is a right that is being exercised over an
immovable property which we call the servient estate. From the point of view servitude,
servitude is the encumbrance imposed upon an immovable property which we refer to as the
servient estate.
Easement or servitude is merely an encumbrance. It does not affect the ownership of the
property of the servient estate; it does not affect the ownership of the owner of the servient
estate. The owner of the servient estate will remain to be the owner of the property. If the
transaction will call for the acquisition of the property by the one who will be using the
easement, in reality that is no longer an easement, that is purchase and sale because the buyer
will be acquiring ownership over the property. Para maging easement yan, it must only involve
a limited use of that property without acquiring ownership. There will only be a limited.
Easement will only grant a right of limited use over the servient estate but without the right of
possession. Right of limited use lang but without possession. That is the concept of easement
and servitude.
In easement, the servient estate must always be an immovable property. But the use of the
term immovable property as the subject matter of easement does not refer to the term
immovable property as defined in Article as numerated in Article 415. The use of the term
immovable property as the subject matter of easement is not being used in its technical sense
instead the use of that term is ordinary or vulgar sense. So therefore only those properties
which cannot be moved from one place to another which are truly immovable can be the
subject matter of easement.
For example, you will notice only lands, roads, buildings and waters can be the subject matter
of easement. But not an immovable property by destination, by incorporation, or by analogy.
Once upon a time there was a question in the bar examination, can you have an easement over
an easement? Anong ibig sabihin ng tanong? Since an easement is a real property in itself, we
have discussed that at the start of the lecture, in paragraph 10 Article 415. Easement or
servitude is classified as the real property. Since easement in itself is a real property, can it be a
subject matter of an easement? Pwede ba yung servient estate mo ay easement? No, because
the use of the word easement as the subject matter of easement is not used in its technical
sense. So, it will not include involves by analogy. Instead the use of the term immovable
property, as the subject matter of easement, it is being used in its ordinary or vulgar sense. So,
ang pwede lang maging servient estate lands, roads, buildings, waters.
In easement, it is necessary that the property, the servient estate must belong to someone else.
You cannot have an easement over your own property. That is a basic principle. You are using
your property not as an encumbrance. You are using your property in the exercise of the right
of ownership. So, when we talk of easement, the servient estate must necessarily belong to
someone else. So, if the owner of the dominant estate, we later on acquire ownership over the
servient estate, the easement is necessarily extinguished because you cannot have an
easement over your own property. In the same way, if you are admitting that you are using the
property only as an easement that is an admission that the property does not belong to you
instead it belongs to someone else.
In the case of Bogo-Medellin Milling Co., Inc., v COURT OF APPEALS, Bogo-Medellin which was a
sugar central milling corporation was making use of a parcel of land as the central road right of
way for about 26 years. Bogo-Medellin had been declaring that parcel of land as a central road
right of way in the tax declaration. On the 26 th year a cadastral survey was made in the area and
it was only during the cadastral survey that Bogo-Medellin claimed to be the owner of that
parcel of land. In the 32nd year an accion reinvindicatoria was filed against Bogo-Medellin for
the recovery of the possession of the land. Ang depensa ng Bogo-Medellin that property can no
longer be recovered from Bogo-Medellin because Bogo-Medellin had full ready acquired
ownership over that property by way of a acquisitive prescription. Is the contention of Bogo-
Medellin tenable? In order for a parcel of land can be acquired by way of acquisitive
prescription, one of the requirements must be that the possession during the 30-year period
must be in the concept of an owner. Was the possession of Bogo-Medellin of that property is in
the concept of an owner? After the cadastral survey, on the 26 th year going to the 32nd year, yes
its possession was in the concept of an owner because it claimed to be the owner during the
cadastral survey but that was not sufficient for purposes of prescription. During the first 26
years, Bogo-Medellin had been declaring that parcel of land as a central road right of way. So,
Bogo-Medellin was acknowledging that it is using that property as an easement so that is an
admission by Bogo-Medellin that the property belongs to someone else and not to Bogo-
Medellin. Because you cannot have an easement over your own property.
From the point of view of the recipient of the benefit, an easement is classified either as a real
easement or a personal easement. The easement is real if the beneficiary is another estate
which we refer to as the dominant estate. And again, if the easement is in favor of another
estate which we call dominant estate, the easement is a real one. So, it is in real easement were
there exist two estates: one is servient, the one it is the estate that is subjected to the burden
or encumbrance; on the other hand, the dominant estate is the beneficiary it is the estate that
exercises the right over the servient estate. On the other hand, if the recipient of the
beneficiary is a person, a specific person or group of persons, or a community who are not
required to own an estate, the easement is classified as personal easement. So sa personal
easement, we cannot have an easement without a servient estate because an easement is
necessarily, it is a right that is being exercised over an immovable property which we call
servient estate. From the point of view of servitude, servitude is an encumbrance that is
imposed over an immovable property which we refer to as the servient estate. So, in any kind
of easement, whether real or personal, lagging may servient, but in personal easement there is
no dominant estate because the beneficiary is not another estate but a person or group of
persons.
From the point of view of the manner of exercise of the easement, an easement is either
continuous or discontinuous. An easement is continuous if the easement is susceptible of
continuous use without need of any act of man. Example, in easement of light and view, there
is a window, there is an opening. That window or opening is susceptible of continuous use,
reception of light without the need of act of man. So, the easement of light and view is always a
continuous easement. On the other hand, if the easement is not susceptible of continuous use
without the action of man, meaning it will need an act of man for its use. Yan ang tinatawag
nating discontinuous easement. An example of a discontinuous easement is a right of way.
Tandaan na natin a right of way is always a discontinuous easement. Nagagamit lang yan
kapag nakatapak ang paa mo sa lupa.
Let us go to another classification of easement.
As to whether or not, there are external signs indicating an easement. An easement is either
apparent (obvious, halata) or non-apparent (hindi obvious, hindi halata). The easement is
apparent or obvious if there are external signs indicating the existence of easement. For
example, the easement of light or view, if there is a window, the window is an external sign of
the easement of light and view. On the other hand, a non-apparent easement, there may exist
an easement but there is no external sign indicating that there is an easement. For example, an
easement of not blocking someone else’s view, that is also an easement. There is an easement
which is in the negative form but there are no signs indicating that that easement exists. In
easement of right of way pwede maging apparent yan, pwede maging non-apparent. If there is
a road, and that’s road is cemented, paved, klarong may daan, or there is a pathway, may
hawan, yung hawan na yun, that is a pathway. That is an external sign of an existence of an
easement of right of way. On the other hand, an easement of right of way may possibly exists
even if there is no pathway, in which case, the easement is a non-apparent.
What is the importance of these classifications of easement – continuous, discontinuous;
apparent, non-apparent? For purposes of acquisition of easement, so punta tayo dun. How is an
easement acquired? Dalawa lang ang paraan.
There are two ways of acquiring easement.
1. Either by way of title or
2. by way of prescription
When we talk of title will include contracts or modes of acquisitions such as donation, law,
succession) On the other hand prescription is simply concerned with lapse of time.
All easement whatever may be its kind can be acquired by way of title but not all easement can
be acquired by way of prescription. The only easement that may be acquired by way of
prescription is if the easement is both continuous and apparent. Dapat pareho yung masatisfy.
The easement is continuous and at the same time it is apparent that is the only time that it may
be acquired by lapse of time or by way of prescription.
Can you acquire an easement of right of way by way of prescription? No, because easement of
right of way is always a discontinuous easement. Therefore, it can only be acquired by way of
title.
 On the other hand, an easement of light and view, there is a window, there is an opening. Sabi
natin kanina, that is a continuous easement and at the same time that is an apparent
easement. So therefore, an easement of light and view can be acquired by way of prescription.
If the easement is both continuous and apparent in which case it may be acquired by way of
prescription, how long is the prescriptive period? 10 years.
When does the 10-year period commenced to run? It will depend on whether the easement is
positive or negative.
Ano ba yung tinatawag nating positive easement? If the obligation of the owner of the servient
estate is simply to permit that something be done on his property that is a positive easement.
Example, an easement of right of way. The obligation of the owner of the servient estate is
simply to allow passage on his property. So again if the obligation of the servient estate is
simply to allow that something be done on the property the easement is positive.
On the other hand the easement is negative if the servient estate the owner of the servient
estate is prohibited from executing or making an act on his property that he could lawfully do
had there been no easement then the easement is negative. Example, if the owner of the
servant estate is prohibited from making any construction that will block someone else’s light
and view, that is a negative easement.
If the instrument is positive, the 10-year period commences to run on the day that the
easement was exercised. On the other hand, if the easement is negative, that will require an act
of prohibiting the owner of the servient estate from making an act or executing an act on his
property. So dapat merong prohibition and it is necessary that such prohibition must be
embodied in a notarial document. So, it is only after furnishing a copy of that prohibition
embodied in a notarial document that the 10-year period will commence to run.
Let us give an example. (May demonstration ng papel haha)
If there are two estates separated by a wall this is the wall and this wall was constructed on my
property I am the owner of this parcel of land and this this is my wall. I constructed this wall on
my property. If I will make an opening on my wall bubutasan ko ang wall ko. For purposes of
light and view, am I creating an easement? No, because this is my wall I am not creating an
easement in relation to my wall because you cannot have an easement over your own property.
This is it this is simply an exercise of my right of ownership. But in relation to this opening, I can
create an easement if the burden will be imposed upon the property of my neighbor. As we
have stated earlier in easement, the encumbrance must be imposed upon the immovable
property of another person.
How can I create an easement in relation to this opening with respect to the property of my
neighbor? If I will prohibit my neighbor from making any construction on his property that will
block my light and view so that is a negative easement. It will require an execution of a notarial
document prohibiting my neighbor from blocking my light and view. Upon furnishing a copy of
that notarial document to my neighbor, the 10-year period will now commence to run. If on the
second year, my neighbor made a construction on his property. He created a wall on his
property blocking my light and view, can I complain? Can I require him to undo what he had
done? The answer is no because I have not yet acquired an easement over the property of my
neighbor. An easement will only be acquired after the lapse of 10 years from the time that I
furnish my neighbor a copy of that notarial document. So if after 10 years, on the 11th year can
I complain now? Yes, because after 10 years I have already acquired an easement of light and
view and my neighbor can no longer make any construction on his property that will block my
light and view.
On the other hand, if this is the property of my neighbor, this time this is the wall of my
neighbor, the wall was constructed on his property. And, I made an opening on the wall of my
neighbor, for purposes of light and view, am I creating an easement? Now, the answer is yes
because the burden is imposed upon the property of someone else. The obligation, this is now
a positive easement. The obligation of my neighbor is simply to allow this opening to allow this
opening for purposes of light and view. So, that is now a positive easement, so the 10-year
period will commence to run on the day that the easement was exercised and that is on the day
that this opening was made. Dun tatakbo yung 10 year period. If on the second year, my
neighbor decided to close this opening by cementing it, do I have a reason to complain? No,
because I have not yet acquired an easement by way of prescription. But if he will be closing
that opening after 10 years, nung 11th year niya pa lang naisipang isarado yun, can I now
complain? Yes because after 10 years from the time that I made this opening, I now acquired an
easement of light and view.

ACQUISITION OF EASEMENT BY WAY OF OPERATION OF LAW

Let us talk of article 624 which speaks of acquisition of easement by way of operation of law.
What are the requirements in order for an easement be acquired by way of operation of law?
1. The ownership of that property must belong to one person, single person or pwedeng
co-ownership basta ang ownership is not yet divided.
Example, this parcel of land is owned by A. So, the ownership is not yet divided. So,
while the property is not yet divided, there exist an external sign of easement had the
ownership been divided.
Anong ibig sabihin? (Demo ulit sa papel) Dito sa kabilang side, sa gawi dito may bahay,
at yung bahay nay un may bintana, fronting this side, so dapat yung opening nay an ay
easement of light and view kung yung kabilang parte ng lupa belongs to someone else,
kaya lang at that time, when the window was constructed, the ownership has not yet
been divided. But nonetheless, there exists an external sign, easement sana yun, kung
ang ownership has been divided.
2. The ownership over that property has been subjected to division.
Anong ibig sabihin? Maari yung gawi dito ibinenta nya sa iba, binenta nya kay X, yung
gawi dito kay Y. If upon the division of the ownership, the window, the external sign of
the existence of the easement was still there, existing at the time the ownership was
divided nung nagkaroon ng bentahan andun pa rin ang bintana and at the Deed of Sale,
in the instrument dividing the ownership, nothing has been said in relation of the
window hindi pinasara, consequences of all of those requirements upon the division of
the ownership an easement of light and view will be acquired by this portion over that
 portion (demonstrating using the paper, yung kabilaan ng paper) by way of operation of
law.
Kaya importante ‘to kapag bibili tayo ng lupa. Meron bang external signs of easement. Anong
effect nun?
If an easement of light and view is created by operation of law in favor of this estate as the
dominant estate, and this estate is the servient, the owner of this estate cannot make any
construction that will block the easement of light and view. That is Article 624 of the Civil Code.

VOLUNTARY EASEMENT and COMPULSORY EASEMENT

If the easement is constituted by reason of the will of the owner of the servient estate, if the
owner of the servient estate voluntarily creates an easement on his property, either by way of
contract of by way donation, or by way of succession, yun ang tinatawag nating voluntary
easement.
In voluntary easement, in order for the easement to attach to the property, para maging real
right ang easement, it is necessary that it is the owner of the servient estate who must
constitute, who must create an easement. For example, right of way. In order for an easement
of right of way to be created that will bind the servient estate, take note that the easement is a
real right, in easement, the obligation attaches not only upon the person of the owner of the
servient estate but the obligation attaches on the property itself. The obligation attaches on the
servient estate itself. So kahit magpalit ng ownership ng servient estate, the easement will
continue. At kahit na magpalit ng ownership ang dominant estate, the easement will continue.
The easement is in favor of the dominant estate, not in favor of the owner of the dominant
estate. And the obligation is imposed on the estate itself.
In order for the easement, for example right of way, to attach to the servient estate itself, it is
necessary that the voluntary easement must be constituted, must be created by the will of the
owner of the servient estate. If the right of way was constituted, created only by reason of a
mere lessee, the obligation attaches only upon the person of the lessee such that upon the
expiration of the contract of lease, the grant of the right of way is likewise terminated. Because
the obligation does not attach upon the property itself. Ulitin natin. In order for the obligation
in voluntary easement, in order for the obligation to attach upon the property itself, para
maging real right yun it is necessary that it must be the owner of the servient estate himself.
If the owner of the servient estate does not willingly, voluntarily grant an easement over his
property ang tanong may another estate or may another person compel the owner of the
servient estate to grant an easement? If an easement can be compelled upon, if the grant of an
easement can be compelled upon, yun yung tinatawag natin compulsory or legal easement.
For example, in a right of way. Kung ayaw magbigay ng right away voluntarily, may the owner
of the servient estate be compelled to grant a right of way? In order for an easement to be
granted compulsorily, there are requisites to be followed.
IMPORTANT EXAMPLES OF LEGAL OR COMPULSORY EASEMENTS
Let us discuss three important examples of legal or compulsory easement.
Starting with easement of drainage of waters. A legal easement of drainage of waters will exist
if there are two estates and one is higher and the other one is lower. Under the principle of
easement of drainage of waters, the lower estate has the obligation of receiving the waters and
the dirt that are naturally flowing from the higher estate going down to the lower estate. So,
the lower estate cannot make any construction that will impede the natural flow of waters or
dirt coming from the higher estate. On the part of the higher estate, it cannot, on the other
hand make any construction that will make burdensome the obligation of the lower estate.
Such kind of easement is continuous, and it is apparent.
Another example of legal or compulsory easement is what we refer to as an easement for
public use that kind of easement exists in bodies of water in rivers, creeks, streams, lakes, sea.
Within 3 meters if the body of water is located in an urban area, there is a three-meter strip
from the banks or from the shore and the purpose of the three meters strip is for recreation,
for purposes of navigation, salvage, etc. so the public has the right to make use of that piece of
property, yung three meters strip but without right of possession. The public cannot occupy
that piece of property. That piece of property remains to be a property of public dominion.
If the body of water is located in an agricultural area, the easement is 20 meters. If the same is
located in an in a forest area, the easement is 40 meters. So again, that easement is for
purposes of public use, for recreation, floatage, salvage etc but without the right to take
possession of that property, that property remains to be property of public dominion.
Let us discuss the more important example of compulsory easement which is the compulsory
grant of right of way. In order for a right of way to be granted compulsorily, the following four
requirements must be satisfied:
1. The dominant estate must be isolated meaning the dominant estate must be
surrounded by other immovables in such a way that it has no adequate outlet going to a
public highway. That is what we mean by isolation. The test in determining whether the
grant of compulsory right of way is proper is inadequacy of outlet going to a public
highway. The test is not inconvenience of the dominant estate. So, if the dominant
estate has an adequate outlet going to a public highway even if that right of way, even if
that outlet prove to be inconvenient on the part of the dominant estate, the dominant
estate is not entitled to a compulsory grant of right of way.
2. The isolation must not be attributable to any act of the owner of the dominant estate.
So for example, if the owner of the dominant estate closes its outlet going to a public
highway because that outlet proved to be inconvenient and he wants to be granted
another outlet which to him will be more convenient. His isolation was brought about by
his own fault. So therefore, the dominant estate is not entitled to a grant of component
of compulsory right of way.
 3. There must be payment of proper indemnity.
4. As to where the easement must be established, kung may ibang alternative, the
easement or the right of way should be established at that point to be least prejudicial
to the servient estate. That is the only test kalimutan niyo na yung shortest. The only
test kung saan yung right of way as to where the right of way should be established, it
must be at that point which is least prejudicial. So, if there are two alternatives one
shorter but will require that the destruction of a concrete fence and the other one
longer but it will require no mere passage through bigger lots. This route is the least
prejudicial to the servient estate so the easement must be established here. As to the
width of the right of way, that will depend on the requirement of the dominant estate.
If a new highway will be opened, will that result to the extinguishment of the easement of right
of way? The same will only result to the extinguishment of a compulsory easement but not a
voluntary one.

MODES OF ACQUISITION OF OWNERSHIP

Let us go to acquisition of ownership. There are 7 modes of acquiring ownership (OLDTIPS)
1. Occupation
2. Law (by operation of law)
3. Donation
4. Tradition or delivery
5. Intellectual creation
6. Prescription (acquisitive)
7. Succession

OCCUPATION
What is occupation as a mode of acquiring ownership?
Occupation will involve the seizure of a corporeal movable. So, occupation as a mode of
acquiring ownership, it is only applicable to movable. And the movable must be a corporeal
movable. So, in occupation it will involve the seizure of a corporeal movable which does not
have an owner. It must be a res nullius. And following the rules provided for by law.
For example, in the case of a lost movable. In order for an ownership of a lost movable to be
acquired. The rules provided for by the law must be followed. Meaning the finding of the lost
movable must be deposited of Office of the Mayor and it is only after the expiration of 6
months from publication of the notice of the finding that ownership be acquired by the finder
by way of occupation.
In finding of hidden treasure, ownership is acquired by way of occupation. In hunting and
fishing, ownership is acquired by occupation. But it is necessary that the movable property
must be res nullius.
Abandoned Property
When is a property considered abandoned? When will it become res nullius? Two requisites
must be satisfied in order for the property to become, to be declared abandoned, therefore, it
will become res nullius, if two requisites will be satisfied:
1. The hope of recovery is already given up and
2. The intent to recover must no longer be existing
The spes recuperandi and the animus revertendi must be both given up. If not, the property is
not considered abandoned. Therefore, it does not become res nullius.
As to wild animals, under the Civil Code, there are 3 kinds of animals:
1. Wild
2. Domesticated or tamed or
3. Domestic
An animal is wild if it is found in its natural state of freedom. In order of ownership to be
acquired as to wild animals, it will require a seizure of that animal. So, a wild animal is
considered under the possession of one if he was able to subdue the wild animal. But once the
animal will be able to free itself, it will again regain its status to be naturally free, res nullius
again.
Ano naman yung tinatawag natin domesticated or tamed? That animal is used to be wild but it
learned the habit of returning to the abode of the possessor. In the case of a domesticated
animal, if the present possessor lost possession over a domesticated animal and it is now under
the possession of someone else, he has a period of 20 days within which to recover the
possession of a domesticated animal.
On the other hand, if the animal has been raised by man it was never wild but raised by man
from birth, that is a domestic animal. And in relation to a domestic animal, the 20-day period
does not apply. Instead, it will be treated as movable property. It is our rules on loss movables
that will be applicable to a domestic animal.

INTELLECTUAL CREATION
Let us talk of intellectual creation.
Intellectual creation is the mode of acquiring of ownership over something that has been
created by way of composition (songs), by way of inventions etc.
Ownership is immediately acquired from the moment of creation. But acquisition of ownership
is different from its protection subsequent publication.
For example, if a composer wrote and composed a song, he became the owner of that song
from the moment of creation. As the owner of his creation, he has the right of exclusive
enjoyment over his creation. He may choose to share it to the public or he may choose not to
share it to the public. But once he decides to share it to the public, for example, pinarinig nya
sa social media, he will lose the right the subsequent publications over his work. If the same
was not placed under the protection of intellectual property law, so iba naman yung konsepto
ng protection under the IP law. That will govern the subsequent publication of the work. Yung
initial publication that belongs to the owner. But yung subsequent publication wala na syang
control over it unless he placed the same under the protection of our IP law.

DONATION
There will be donation if 3 requisites will be satisfied:
1. There is an increase in the patrimony of the donee
2. There must be a corresponding decrease of the patrimony of the donor
3. There must be animus donandi or intent to donate.
A donation, generally, can be either inter vivos or mortis causa.
What is the importance of distinguishing between donation inter vivos and a donationmortis
causa?
1. That will tell us the required formalities
a. If the donation is inter vivos, it is either the formalities required under ordinary
donation embodied in 748 or 749 that will be applicable or the formalities
required under the contract if the donation is onerous.
b. If the donation is mortis causa, it is in reality a legacy or devise which must be
embodied in the form of a last will and testament in order for it to be valid.
2. As to the timing of the acceptance
a. If the donation is inter vivos, it is required to be accepted during the lifetime of
the donor because upon the death of the donor at wala pang acceptance, if the
donation is not perfected at the death of the donor, following the provisions of
1323 of the Civil Code, the death of the donor will result to the extinguishment
of the offer. It will terminate the offer so there is no more offer to be accepted at
the death of the donor. Kaya requirement yan sa donation inter vivos. That the
acceptance must be made during the lifetime of the donor.
b. If the donation is mortis causa, which is actually a last will and testament, the
acceptance can only be made after the death of the donor. Any acceptance that
made during the donor’s lifetime is not effective because prior to the donor’s
death or decedent’s death, the interest of a devisee or a legatee is merely
inchoate.
 3. As to revocability
a. If the donation is inter vivos, it is generally irrevocable. It can only be revoked for
specific grounds provided by the Civil Code.
b. If the donation is mortis causa which in reality is a will, it is essentially revocable.
So, if the donation not essentially revocable, it is donation inter vivos and not mortis
causa.

Now, when the donation is inter vivos? When it is donation mortis causa?
Ang titingnan lang natin the date of effectivity of the donation. IF the donation will become
effective during the lifetime of the donor, that is inter vivos. Even if the transfer of ownership or
the delivery of the property can only happen after the death of the donor. But if the donation
already effective during the donor’s lifetime, inter vivos. But if the donation is intended to be
effective only upon death and by reason of donor’s death that donation is mortis causa.
Importante kasi if donation inter vivos but embodied in the form of a will, walang acceptance
yun during the lifetime of the donor. In which case, that donation is not perfected and it can no
longer be accepted upon the death of the donor if it is indeed inter vivos.
On the other hand, the donation is mortis cause but nagawang inter vivos, mali yung formalities
because the formalities that should be complied are the formalities required in the execution of
a will.

DONATION INTER VIVOS

What are the different kinds of donation inter vivos?
1. Simple or pure donation – walang condition, there are no strings attached. The only reason
for the donation is the pure liberality of the donor.
2. Remuneratory donation – ang pinagkaiba nya sa simple donation, in simple donation,
there is no reason for the donation but in Remuneratory, the donation is on account of a
past service. There is a now a reason for the donation. And now, the reason is the past
service done by the donee to the donor. But that past service must not be in a nature of
demandable obligation. Otherwise, if the past service that was made by the donee to the
donor was a demandable obligation, the donation was actually a payment, in a form of
payment. So para maging remuneratory yan, the past service done by the donee to the
donor must not be in the nature of a demandable obligation. And since, the past service is
not a demandable obligation, there is no obligation to the part of the donor to make a
donation. So that donation is still out of the donor’s pure liberality, kaya lang may reason.
And that’s the reason why both, these 2 kinds of donation – pure and remuneratory are
governed by the same set of rules. The rules on ordinary donation are applicable to both.
3. Onerous – bakit may kapalit? And yung kapalit is at least equal of the donated property or
may be more than of the value of the donated property. So, the donation is not by reason
of donor’s liberality kasi may kapalit yun. That is inconsideration for another service or
another thing, the value of which is equivalent to the value of the thing donated or even
more. Kaya that is actually a contract, not a donation. That is the reason why an onerous
donation is not governed by the law on donation. Instead, it is governed by the law on
contracts.
Meron naman tayong a kind of donation, modal, where there is also a consideration in
exchange of the donation but the value of the consideration is inferior, less than the value of
the thing donated, so with respect to up to the extent of the value of the consideration that
the modal donation is onerous, in excess of that is already the liberality of the donor kaya
magiging pure nay un. So yung modal with respect to the consideration it will be governed by
the law on contracts but with respect to the excess, it will governed by the law on donation.
That being the case, ang pure at ang remuneratory. There are governed on ordinary donation.
But ang onerous, it is governed by the law on contracts. So as to formalities magkaiba, in the
pure and remuneratory donations, there are to be governed by the formalities of 748 and 749.
But in ordinary donation, it will simply follow the rule in 1356 – that a contract is obligatory in
whatever form it may have been entered into
Likewise, if an impossible condition is imposed upon termination magkaiba ang epekto. If the
donation is pure or remuneratory, governed by the law on donation ang sabi ng article 727 if
an impossible condition is imposed upon that kind of donation, the impossible condition is
simply considered not imposed. It will simply be disregarded and the donation will remain to
be valid. On the other hand, if the donation is onerous and it is subjected to an impossible
condition, the applicable law is the law on contracts so it is article 1183 that will be applicable
and in pursuant to article 1183 that donation itself will become void.

PERFECTION OF DONATION
Let us talk of the perfection of a donation.
A donation is also a contract so following the rules on contracts, a donation is perfected upon
the meeting of the offer and the acceptance. However, there are formalities required in
donation. If the donation will involve personal property, the value of which exceeds 5000 pesos
as to the offer of donation and the acceptance of the donation, they are required to be in
writing. Otherwise, the donation is void.
If the donation will involve real property, the offer of the donation must be in a public
instrument as well as acceptance. Otherwise, donation is void. In the donation of RP, the
acceptance can be made in the same instrument or in a public instrument. But if the
acceptance made in a public instrument, there is a requirement that the donor must be
notified that the done is accepting the donation in a separate public instrument. In such
notification must be noted in both instruments of donation and acceptance.
Are the requirements of notice and notation mandatory? Ang sabi ng Korte Suprema, in the
absence of proof that donor had actual knowledge of the acceptance, the requirement of
notice and notation will become mandatory in the absence of which the donation will become
void. On the other hand, if there is proof that the donor was aware of the acceptance that
requirement of notice and notation can be relaxed. In which case, its absence will not affect
the validity of donation.

TRANSFER OF OWNERSHIP IN DONATION

But donation is also a mode of acquiring and transmitting ownership while it is a contract, in
donation, since it is a mode in itself, it is not delivery that will transfer the ownership to the
donee. Instead, upon the perfection of the donation, ownership is immediately transferred to
the donee even if there has been no delivery yet.
That is the reason why in a donation it is a requirement that the donor must be the owner of
the thing donated at the time of the perfection of the donation. If the donor is not the owner
of the thing donated at the time of the perfection of the donation, that donation involves a
donation of future property which is not allowed in Article 751 in Civil Code.
A donation of future property is void. Because at that time of the transaction, the object or the
cause does not exist.

REVOCABILITY OF THE DONATION

As a general rule, a donation inter vivos, once it is made, it is generally irrevocable. It may only
be revoked for grounds provided for under the Civil Code.
What are those grounds?
1. Subsequent appearance of a child. If the situation was that at the time of making of the
donation, the donor had no child, whether legitimate, illegitimate or adopted, or he had a
child but he though his child was already dead. And upon making of the donation, he had a
child donation, whether legitimate, illegitimate or adopted or the child he believed to be
dead turned out to be alive. That is a ground for reduction or revocation of a donation.
 Up to what extent will the donation be reduced or revoked? At that time of the appearance
of the child, we will be considering the estate of the donor at that time. Taking into account
the estate of the donor at the time of the appearance of the child, we will be determining
the presumptive, the provisional legitime of the child who appeared. If the donation will
impair the presumptive legitime of the child, the donation will be reduced or revoked up to
the extent it impaired the provisional legitime of the child who appeared.
But in determining the provisional legitime of the donor, we will be taking in consideration
the value of his properties at the time of the appearance of the child. So, buhay pareho sila
nun. That is different from inofficious donation.

2. If the donation is inofficious. What do we mean of inofficious donation? If the donation of

the donor will impair the legitime of the donor’s compulsory heirs, the donation may either
be reduced or revoked up to the extent that it had impaired the legitimes of the
compulsory heirs. This time we will be considering the estate of the donor at the time of his
death.
3. If the donee committed an act of ingratitude provided by law.
4. If a condition was imposed upon the donation and the donee failed to comply with such
condition. According to the Supreme Court, the term condition in Article 764 does not refer
to an unforeseen, to a future and uncertain event. Instead, it refers to obligation or burden
imposed upon the donee. And that will make the donation onerous. So therefore, the
prescriptive period for the revocation of that onerous donation will follow the general rule
on prescription and that period is 10 years if the donation is in writing. On the other hand,
if the parties provided for an automatic revocation of the donation, that agreement
according to the court is valid.