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same value and of similar conditions, or to pay the usufructuary the
legal interest on the amount of the indemnity for the whole period of
the usufruct. If the owner chooses the latter alternative, he shall give
security for the payment of the interest. (519)
Art. 610. A usufruct is not extinguished by bad use of the thing in
usufruct; but if the abuse should cause considerable injury to the
owner, the latter may demand that the thing be delivered to him,
binding himself to pay annually to the usufructuary the net proceeds of
the same, after deducting the expenses and the compensation which
may be allowed him for its administration. (520)
Expropriation of thing in usufruct
The expropriation of the thing does not extinguish the usufruct.
Article 609 allows the substitution of the thing by an equivalent thing.
If the thing in usufruct is expropriated for public use, the naked owner is
given the option:
o to replace it with another thing of the same value and of
similar conditions, or
o to pay to the usufructuary the legal interest on the amount of
indemnity for the whole period of the usufruct.
In the latter case, the owner shall give security for the
payment of the interest.
Effect of bad use
Bad use of the thing in usufruct does not extinguish the right of the
usufructuary whether there is security or not. The usufruct continues.
But if the bad use causes considerable injury to the owner, not to the
thing itself, the owner is given the right to demand that the thing be
delivered to him, binding himself to pay annually to the usufructuary the
net proceeds of the same, after deducting the expenses and the
compensation which may be allowed him for its administration.
This is true where the usufructuary has not given any security or the
security given is insufficient especially if the owner has no property.
The second part of the provision can hardly apply where there is
sufficient security for no considerable injury could possible be caused
to the owner.
Art. 611. A usufruct constituted in favor of several persons living at the
time of its constitution shall not be extinguished until death of the last
survivor. (521)
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Usufruct in favor of several persons
Usufruct is extinguished by the death of the usufructuary unless a
contrary intention appears.
The usufruct is not extinguished until the death of the last survivor. As
the usufruct continues, the rights of any usufructuary who dies shall
accrue to the surviving usufructuaries.
o The only exception is when the title constituting the usufruct
provides otherwise as where the usufruct is constituted in a list
and will and testament and the testator makes a contrary
provision.
Art. 612. Upon the termination of the usufruct, the thing in usufruct
shall be delivered to the owner, without prejudice to the right of
retention pertaining to the usufructuary or his heirs for taxes and
extraordinary expenses which should be reimbursed. After the delivery
has been made, the security or mortgage shall be cancelled. (522a)
Obligation of usufructuary to return the thing upon termination of the usufruct
Upon the termination of the usufruct, it is the duty of the usufructuary to
return the property to the naked owner.
The usufructuary is expressly granted the right of retention until he is
reimbursed for the amount of taxes levied on the capital and for the
increase in value caused by extraordinary repairs.
He has no right to reimbursement for useful improvements.
TITLE VII EASEMENTS OR SERVITUDES
CHAPTER ONE
EASEMENTS IN GENERAL
SECTION ONE DIFFERENT KINDS OF EASEMENTS
Art. 613. An easement or servitude is an encumbrance imposed upon
an immovable for the benefit of another immovable belonging to a
different owner.
The immovable in favor of which the easement is established
is called the dominant estate; that which is subject thereto, the servient
estate. (530)
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Easement or servitude defined

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

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of the servient estate property 5. As to the duty of servient owner

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

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Apparent easements are those which are made known and are
continually kept in view by external signs that reveal the use and
enjoyment of the same.
Nonapparent easements are those which show no external
indication of their existence. (532)
Continuous and discontinuous easements
For an easement to be continuous, it is not necessary that the use be
incessant; it is sufficient that the use may be so.
o Examples are the right to support a beam on another s wall
which really exists continuously and the right of aqueduct
which may be used only on certain days depending on the
need for water but which is continuous since its use does not
depend upon the intervention of man.
An example of discontinuous servitude is the right of way which is used
at intervals because it is physically impossible that man shall continually
poass over the way.
The easement itself, whether continuous or discontinuous, exists
continuously whether it is being used or not, but its exercise may be
continuous or discontinuous, or there may be no exercise at all.
The distinction lies in the fact that in continuous easements, the
exercise or enjoyment can be had without the intervention of man while
in discontinuous easements, such exercise or enjoyment requires the
intervention of man.
In both easements, the benefit and burden exists from the moment the
easements are created.
Case doctrine
Easements are either continuous or discontinuous according to the
manner they are exercisd, not according to the presence of apparent
signs or physical indications of the existence of such easements. Thus,
an easement is continuous if its use is, or may be, incessant without the
intervention of any act of man, like the easement of drainage; and it is
discontinuous if it is used at intervals and depends on the act of man,
like the easement of right of way. (Bogo-Medellin v CA)
Apparent and non-apparent easements
For an apparent easement, it is not necessary that its sign be seen; it is
sufficient if it may be seen or known on inspection.
o The sign or signs may be encountered in the dominant or
servient estate, according to the circumstances.
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An example of a non-apparent easement is a right of way when there is
no indication of its existence.
A right of way is apparent when there is a visible road or path to show
its exercise.
In general, negative easements are non-apparent.
Art. 616. Easements are also positive or negative.
A positive easement is one which imposes upon the owner of
the servient estate the obligation of allowing something to be done or
of doing it himself, and a negative easement, that which prohibits the
owner of the servient estate from doing something which he could
lawfully do if the easement did not exist. (533)
Positive and negative easements
A positive easement is one which imposes upon the owner of the
servient estate the obligation of allowing something to be done or of
doing it himself.
o Example: the easement of which the right of way which
imposes upon the owner of the servient estate the duty to allow
the use of said way.
A negative easement is that which prohibits the owner of the servient
estate from doing something which he could lawfully do if the easement
did not exist.
o Example: easement of light and view whereby the owner of the
servient estate is prohibited from obstructing the passage of
light. It may also be positive depending upon the manner by
which it is exercised.
When the opening or window is made on another s wall (wall of servient
estate) or on a party wall, the easement acquired is positive because
the owner of the wall allows the servitude to burden his wall.
If the window is through one s own wall (wall of the dominant estate)
which does not extend over another s property (servient estate), the
easement is negative.
Case doctrines
Restrictive covenants are not, strictly speaking synonymous with
easements, but a case of servitudes or burdens, sometimes
characterized to be negative easements or reciprocal negative
easements. Negative easement is the most common easement created
by covenant or agreement whose effect is to preclude the owner of the
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land from doing an act, which, if no easement existed, he would be
entitled to do. (Fajardo v Freedom to Build)
Courts generally view restrictive covenants with disfavor, but still sustain
them where the covenants are reasonable, not contrary to law, or not in
restraint of trade. If the covenant aims to promote aesthetics, health,
and privacy or to prevent overcrowding, then the covenant must be
sustained.
A suit for equitable enforcement of a restrictive covenant can only be
made by one for whose benefit it is intended. It is thus not normally
enforceable by one who has no right nor interest in the land for the
benefit of which the restriction has been imposed. Thus, developer of a
subdivision can enforce restrictions, even as against remote grantees of
lots, only if he retains part of the land. (Fajardo v Freedom)
Art. 617. Easements are inseparable from the estate to which they
actively or passively belong. (534)
Quality of inherence or inseparability
Servitudes are inseparable from the estate to which they actively or
passively belong, being accessory things whose very existence
depends upon the principal thing (immovable).
Hence, they are intransmissible in the sense that they cannot be
alienated or mortgaged independently of the estate.
An easement cannot be the object of usufruct because it has no
existence independent of the immovable to which it attaches.
If the dominant estate is alienated, such alienation carries with it also
the easements established in its favor even if they are not annotated as
an encumbrance on the certificate of title.
An easement is extinguished or cut-off, however, by the registration of
the servient estate under the Torrens system without the easement
being annotated on the corresponding certificate of title. A registered
owner or subsequent purchaser of registered land holds his certificate of
title free from all encumbrances except only those noted in said
certificate and the statutory liens.
o But if the existence of an easement was known to the
transferee or grantee of the servient estate, such knowledge is
equivalent to registration.
Case doctrines
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Ateneo Law 2012, updated: May 15, 2012
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A vendee on real property on which a servitude or an easement of right
of way exists does not acquire the right to close that servitude to
prevent the neighboring estates from using it. (Solid Manila v Bio Hong)
Art. 618. Easements are indivisible. If the servient estate is divided
between two or more persons, the easement is not modified, and each
of them must bear it on the part which corresponds to him.
If it is the dominant estate that is divided between two or more
persons, each of them may use the easement in its entirety, without
changing the place of its use, or making it more burdensome in any
other way. (535)
Quality of indivisibility
Easement as a right is indivisible.
Accordingly, the partition between two or more persons of either the
servient or dominant estate does not affect the existence of the
servitude which continues in its entirety.
If the servient estate is divided, each new owner must bear the
easement but only with respect to the part corresponding to him.
If the dominant estate is divided, each owner can exercise the whole
easement over each of the servient estates subject to the condition that
the place of easement shall not be changed and the easement shall not
be more burdensome.
o A person entitled to a right of way may do whatever is
necessary to make it convenient for his use but he cannot
deviate therefrom. The easement is not considered made more
burdensome by the mere increase in the owners of the
dominant estates.
Art. 619. Easements are established either by law or by the will of the
owners. The former are called legal and the latter voluntary easements.
(536)
Legal and voluntary easements
This article gives the two kinds of easements according to source.
The courts cannot impose or constitute any servitude where none
existed.
They can only declare its existence if in reality it exists by law or by the
will of the owners.
There are no judicial easements.
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Voluntary easements must be recorded in the Registry of Property in

order not to prejudice third persons.


SECTION TWO - MODES OF ACQUIRING EASEMENTS
Art. 620. Continuous and apparent easements are acquired either by
virtue of a title or by prescription of ten years. (537a)
Modes of acquiring easements
1. By title. All easements.
a. Continuous and apparent easements (Art 620)
b. Continuous and non-apparent easements (Art 622)
c. Discontinuous easements, whether apparent or non-
apparent
2. By prescription of ten years only continuous and apparent easements
3. By deed of recognition (Art 623)
4. By final judgment
5. By apparent sign established by the owner of two adjoining estates (Art
624)
Acquisition by title or prescription
Only continuous and apparent easements may be acquired either by
virtue of a title or by prescription in 10 years.
By title, it refers to the juridical act which gives birth to the easement,
such as law, donation, contract and will of the testator.
This article fixes ten years as the period of prescription, regardless of
good faith or bad faith of the possessor and whether or not he has just
title.
The general rules on prescription do not apply, the only requirement
being that there be adverse possession of the easement for ten years.
Case doctrines
Prescription as a mode of acquisition requires the existence of the
following:
2. Capacity to acquire by prescription
3. Thing capable of acquisition by prescription
4. Possession of the thing under certain conditions
Under claim of title (en concepto de dueno)
Possession not merely tolerated by owner
5. Lapse of time provided by law (National Power Corp v Campos)
Art. 621. In order to acquire by prescription the easements referred to
in the preceding article, the time of possession shall be computed
thus: in positive easements, from the day on which the owner of the
dominant estate, or the person who may have made use of the
easement, commenced to exercise it upon the servient estate; and in
negative easements, from the day on which the owner of the dominant
estate forbade, by an instrument acknowledged before a notary public,
the owner of the servient estate, from executing an act which would be
lawful without the easement. (538a)
Computation of the prescriptive period
If the easement is positive, the period is counted from the day on which
the owner of the dominant estate began to exercise it
o From the day a window was built in a party wall
If the easement is negative, from the day on which a notarial prohibition
was made on the servient estate
Under article 622, non-apparent easements may not be acquired by
prescription. Negative easements are essentially non-apparent.
However, article 621 provides the prescriptive period for negative
easements. The notarial prohibition may be taken as making the
easement apparent, and therefore, prescriptible.
Computation in case of easement of light and view
If made on one s own wall and the wall does not extend over the
property of another, the easement is negative because the owner is
merely exercising his inherent right of dominion and not an easement.
o The servient owner cannot close it up; otherwise he will be
liable for trespass.
o But the negative easement is not automatically vested. The
owner must make the prohibition required upon the proprietor
of the adjoining land or tenement to prevent him from
obstructing the light and view.
o If the latter consents to such prohibition and the period fixed by
law expires, the easement will be acquired by prescription.
There is no true easement for as long as the right to prohibit its
exercise exists.
If made through a party wall or on one s own wall which extends over
the neighboring estate, the easement acquired is positive because the
owner of the latter estate who has a right to close it up allows an
encumbrance on the property.

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o The period of prescription shall be counted from the time of the
opening of the window.
Art. 622. Continuous non-apparent easements, and discontinuous
ones, whether apparent or not, may be acquired only by virtue of a title.
(539)
Acquisition only by title
Continuous and apparent easements are the only easements that can
be acquired by prescription because they are the only ones the
possession of which fulfills two important requisites required by law for
prescription possession be public and continuous.
The easements mentioned in Art 622 may be acquired by title, not by
prescription because their possession or exercise is either not public
(non-apparent) such as easement of lateral and subjacent support, or it
is public but not continuous or uninterrupted (discontinuous), like a right
of way if there is a visible path.
However, for legal purposes, the easement of aqueduct shall be
considered as continuous and apparent, although it is not really so.
Art. 623. The absence of a document or proof showing the origin of an
easement which cannot be acquired by prescription may be cured by a
deed of recognition by the owner of the servient estate or by a final
judgment. (540a)
Art. 624. The existence of an apparent sign of easement between two
estates, established or maintained by the owner of both, shall be
considered, should either of them be alienated, as a title in order that
the easement may continue actively and passively, unless, at the time
the ownership of the two estates is divided, the contrary should be
provided in the title of conveyance of either of them, or the sign
aforesaid should be removed before the execution of the deed. This
provision shall also apply in case of the division of a thing owned in
common by two or more persons. (541a)
Alienation by same owner of two estates with sign of existence of servitude
This contemplates a situation where two estates between which there
exists an apparent sign (like a window or road) of an easement belong
to the same owner.
What the law requires is that the sign indicates the existence of a
servitude although there is no true servitude there being only one owner
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In case the owner alienates either of them or both with the result that
the ownership thereof is divided, the easement shall continue unless
the contrary has been stipulated in the title of conveyance of either of
them or the sign removed before the execution of the deed
o The existence of the apparent sign is equivalent to a title if no
objection has been made by the servient owner for an implied
contract that the easement should be constituted is deemed to
exist between the new owners
o The dominant owner can oppose the owner of the servient
estate from doing anything which would be inconsistent with
his obligation to respect the easement
If the lots are owned by two different owners, a
notarial prohibition should be effected (Atty Abrenica)
This article applies in case of the division of a common property by the
co-owners as the effect is the same as an alienation, or there is only
one estate and a part thereof is alienated.
This article is not applicable in case the two estates or portions of the
same estate remain or continue to be in the same owner after alienation
or partition
Case doctrine
Where two adjoining estates were formerly owner by just one person
who introduced improvements on both, such that the wall of the house
constructed on the first estate extends to the wall of the camarin on the
second estate; and at the time of the sale of the first estate, there
existed on the wall of the house, doors and windows (which serve as
passages for light and view), there being no provision in the deed of
sale that the easement of light and view will not be established, the case
is covered by 624.
The existence of doors and windows on the aforesaid wall of the house
is equivalent to a title that characterizes its existence.
But while the law declares that the easement is to continue , the
easement actually arises for the first time only upon alienation of
another estate, inasmuch as before that time there is no easement to
speak of, there being but one owner of both estates. (Gargantos v Tan
Yanon)
Art. 625. Upon the establishment of an easement, all the rights
necessary for its use are considered granted. (542)
Rights granted by easement
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All easements carry with them all the rights necessary for their use and
exercise
Since these accessory rights or accessory easements exist solely by
virtue of and for the use of the servitude which can be considered as the
principal one, they cease upon the termination of the servitude
Art. 626. The owner of the dominant estate cannot use the easement
except for the benefit of the immovable originally contemplated.
Neither can he exercise the easement in any other manner than that
previously established. (n) 
 4. Contribute to the necessary expenses if there are several dominant
Immovable to be benefited by easement, and manner of its exercise
The rule in the first sentence is just because if the owner of the
dominant estate is allowed to use the servitude for the benefit of other
adjoining lands subsequently acquired, or for others, that would make
the easement more onerous and beyond the intention of the parties
If the easement has been constituted in general terms, only the rights
which are reasonably necessary and convenient for the use
contemplated and would case the least burden to the servient estate are
granted.
Where the purpose of the easement or the manner of its exercise is
defined by the title creating it, the exercise of the easement must be
consistent with such purpose or manner
SECTION THREE RIGHTS AND OBLIGATIONS OF THE
OWNERS OF THE DOMINANT AND SERVIENT ESTATES
Art. 627. The owner of the dominant estate may make, at his own
expense, on the servient state any works necessary for the use and
preservation of the servitude, but without altering it or rendering it
more burdensome.
For this purpose he shall notify the owner of the servient estate, and
shall choose the most convenient time and manner so as to cause the
least inconvenience to the owner of the servient estate. (543a)
What are the rights of the dominant owner?
1. Exercise all the rights necessary for the use of the easement
2. Make on the servient estate all works necessary for the use and
preservation of the servitude
3. Renounce the easement if he desires to exempt himself from the
contribution to necessary expenses
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4. Ask for mandatory injunction to prevent impairment of his of the
easement
What are the obligations of the dominant owner?
1. Cannot alter 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
estates in proportion to the benefits derived from the works
What are the rights of the servient owner?
1. Retain the ownership of the portion of the estate on which the easement
is established
2. Make use of the easement, unless there is an agreement to the contrary
3. Change the place or manner of the use of the easement, provided it be
equally convenient
What are the obligations of the servient owner?
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
Right of the dominant owner to make necessary works
Right granted by 627 is subject to the following conditions:
1. Works shall be at his expense and are necessary for the use and
preservation of the servitude
2. They do not alter or render the servitude more burdensome;
3. The dominant owner, before making the works, must notify the
servient owner, and
4. They shall be done at the most convenient time and manner as to
cause the lease inconvenience to the servient owner
Case doctrine
(Goldcrest v Cypress Gardens)
Art. 628. Should there be several dominant estates, the owners of all of
them shall be obliged to contribute to the expenses referred to in the
preceding article, in proportion to the benefits which each may derive
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from the work. Any one who does not wish to contribute may exempt
himself by renouncing the easement for the benefit of the others.
If the owner of the servient estate should make use of the
easement in any manner whatsoever, he shall also be obliged to
contribute to the expenses in the proportion stated, saving an
agreement to the contrary. (544)
Obligation to contribute to expenses of necessary works
This article contemplates several dominant estates.
All the owners shall share the expenses in proportion to the benefits
derived by each estate from the works and not in proportion to their
respective interests. The benefits shall be presumed equal in the
absence of any agreement or proof to the contrary. The easement of
right of way ordinarily gives the same benefit
An owner may exempt himself from contributing to the expenses by
renouncing the easement in favor of the others.
What about the servient owner? Well, he shall be obliged to contribute
to the expense except when there is a stipulation to the contrary, should
he make use of the easement in any manner whatsoever. If he bound
himself to bear the cost of the work, he may free himself form the
obligation by renouncing his property to the dominant owner (Art 693)
Art. 629. The owner of the servient estate cannot impair, in any manner
whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned, or
of the manner established for the use of the easement, the same
should become very inconvenient to the owner of the servient estate,
or should prevent him from making any important works, repairs or
improvements thereon, it may be changed at his expense, provided he
offers another place or manner equally convenient and in such a way
that no injury is caused thereby to the owner of the dominant estate or
to those who may have a right to the use of the easement. (545)
Obligation of servient owner not to impair servitude
The servient owner may abstain from constructing works or performing
any act which will impair, in any manner whatsoever, the use of the
servitude.
An injunction lies at the instance of the dominant owner to prohibit the
servient owner from impairing the use of the servitude
Right of servient owner to change place or manner of easement
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Ateneo Law 2012, updated: May 15, 2012
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While the servient estate cannot impair the use of the servitude, he may
change at his expense the place or manner for its use provided the
following requisites are present:
1. The place or manner has become very inconvenient to him or
prevents him from making important works thereon;
2. He offers another place or manner equally convenient; and
3. No injury is caused by the chance to the dominant owner or to
whoever may have a right to the use of the easement.
Art. 630. The owner of the servient estate retains the ownership of the
portion on which the easement is established, and may use the same
in such a manner as not to affect the exercise of the easement. (n) 

Right of servient owner to use easement
The servient owner preserves his dominion over the portion of his estate
on which the easement is established
This is true although the indemnity consists of the value of the land
occupied and the amount of the damage to the servient estate (Art 649)
He may use the easement subject to the condition that he does not
impair the rights of the dominant owner.
Case doctrine
When the trial court found that the person s right to continue to use the
septic tank ceased upon the subdivision of the land and its subsequent
sale to different owners who do not have the same interest, the
Supreme Court said that this is contrary to law. (Tanedo v Bernad)
SECTION FOUR MODES OF EXTINGUISHMENT OF
EASEMENTS
Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the
dominant and servient estates;
(2) By nonuser for ten years; with respect to discontinuous
easements, this period shall be computed from the day on which they
ceased to be used; and, with respect to continuous easements, from
the day on which an act contrary to the same took place; 

(3) When either or both of the estates fall into such condition
that the easement cannot be used; but it shall revive if the subsequent
condition of the estates or either of them should again permit its use,
unless when the use becomes possible, sufficient time for prescription
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has elapsed, in accordance with the provisions of the preceding
number;
(4) By the expiration of the term or the fulfillment of the
condition, if the easement is temporary or conditional; 
 The non-use must be voluntary on the part of the dominant owner
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of the
dominant and servient estates. (546a)
What are the modes of extinguishment of easements?
1. By merger
It is not necessary that it be with respect to the full extent of the
tenement but only with respect to that part affected by the servitude
or that part for the benefit of which the servitude was established
The merger must be absolute and complete in one and the same
person and not by virtue of other real rights less than full
ownership. (where the merger is temporary, as when it is subject to
a resolutory condition, there is only a suspension but not an
extinguishment of the servitude.)
If the servient owner becomes a co-owner of the dominant estate,
there is no merger for he has acquired only a part interest therein.
If the dominant sells a retro the whole immovable to the servient,
the easement is not extinguished but only suspended. The
servitude is revived when the dominant redeems the property.
What if the dominant sells absolutely to the servitude, buys it back,
then sells it to a third person. There is no revival here because it
was already unconditionally extinguished by the sale of the property
to the servient. But if the sale to servient by dominant was
rescinded or annulled, there is no extinguishment by merger.
2. By non-user for ten years
This mode is applicable only to easements that have been in use
and later abandoned, for one cannot discontinue using what one
has never used
Some legal easements (natural drainage) may be extinguished by
non-user, but only with respect to the actual form or manner in
which they had been exercised, and the right or the power to claim
the exercise of legal easements does not prescribe, as occurs
especially in the case of the right of way and easement of
aqueduct. (Francisco v Paez)
If the easement is discontinuous (right of way), the period of ten
years shall be computed from the day it ceased to be used.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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If continuous (natural drainage), from the day on which an act
contrary to the same took place (like construction of a dam which
blocks natural drainage)
and not due to fortuitous events beyond his control unless the non-
use is due to the impossibility of use under no 3
What s the basis? Well, it s presumptive renunciation.
o So, the proof of non-user must be undubitable particularly
where the easement is perpetual in character because of
its annotation in the Torrens title. Thus, the mere non-use
of a passageway by the dominant owner who has gained
direct access to another way does not extinguish the
easement of right of way. In the absence of any evidence
that could point to mutual agreement to the discontinuance
of the easement annotated on the title, its continued
existence must be upheld
The use by a co-owner of the dominant estate benefits all the other
co-owners and prevents prescription as to them.
3. Impossibility of use
When the condition of either or both of the estates which makes
impossible the use of the easement is irreparable, whether caused
by fortuitous events or not, the servitude is absolutely extinguished
o Otherwise, the impossibility of use merely suspends the
servitude until such time when it can be used again
4. By expiration of term or fulfillment of resolutory condition
5. By renunciation
The renunciation or waiver must be specific, clear and express.
This is particularly true for discontinuous easements such as right
of way.
The waiver must be at least such as may be obviously gathered
from positive acts if not formal and solemn. The mere refraining
from claiming the right, without any positive acts imply a real
waiver, is not sufficient for the purpose although it may constitute
non-use. A clear case of implied waiver is the act of covering up a
window by the dominant owner and yet this act does not ipso facto
extinguish the easement, but only serves to make the starting point
for prescription. (Francisco v Paez)
Where the easement is in favor of a particular group of persons, the
voluntary renunciation thereof by some of them will not affect the
right of the others.
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6. By redemption
it must be by virtue of an agreement between the owners of the
dominant and servient estates under which the servitude would be
extinguished
7. By other causes
Annulment, rescission, abandonment, etc
Registration of the servient estate under the Torrens system
without the easement being annotated in the title
Some case doctrines
Alienation of the dominant and servient estates to different persons is
not one of the grounds for extinguishment of the easement. (Tanedo v
Bernad)
Absent a statement abolishing or extinguishing the easement, then the
easement is continued by operation of law. (Tanedo v Bernad)
An easement is perpetual in character when it is annotated on all the
transfer certificates of title issued. Since there is no evidence that would
point to a mutual agreement between any of the parties with respect to
the discontinuance or obliteration of the easement annotated on the
titles, the continued existence of the easement must be upheld and
respected. (Benedicto v CA)
NB: When the easement is a legal easement, it need not be annotated
in the title. A legal easement is one mandated by law, constituted for
public use or for private interest and becomes a continuing property
right. It is inseparable from the estate to which it belongs. So, there s no
need to annotate in the title. (Villanueva v Velasco)
A voluntary easement of right of way, like any other contract, could be
extinguished only by mutual agreement or by renunciation of the owner
of the dominant estate. As it is like any other contract, it is generally
effective between the parties, their heirs and assigns, except in case
where the rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation, or by provision of law.
(Unisource v Chung, 2009)
If there are easement or other rights appurtenant to a parcel of
registered land which for any reason have failed to be registered, such
easement or rights shall remain so appurtenant notwithstanding such
failure, and shall be held to pass with the land until cut off or
extinguished by the registration of the servient estate or in any other
manner. An easement is cut off or extinguished by the registration of the
servient estate under the Torrens system without the easement being
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
annotated on the corresponding certificate of title, pursuant to Sec 39 of
Act 496 (Purugganan v Paredes)
o EXCEPTION: When the person who registers the servient
estate has ACTUAL knowledge that an easement exists.
(One can t rely on the face of the title if one has actual
knowledge of facts which should compel him to do further
investigation)
Art. 632. The form or manner of using the easement may prescribe as
the easement itself, and in the same way. (547a)
Prescription of form or manner of using easement
The form or manner (or mode) of using the easement is different from
the easement itself or the right to exercise it
Both may be lost by prescription
Some legal easements, however, do not prescribe but the form or
manner of using all easements including legal easements may be lost or
acquired by prescription
Art. 633. If the dominant estate belongs to several persons in common,
the use of the easement by any one of them prevents prescription with
respect to the others. (548)
Where dominant estate owned in common
Easements are indivisible
Hence, the use by a co-owner inures to the benefit of all the other co-
owners and prevents prescription as to shares of the latter
In other words, the use by a co-owner is deemed to be used by each
and all the co-owners

CHAPTER 2
LEGAL EASEMENTS
SECTION ONE GENERAL PROVISIONS
Art. 634. Easements imposed by law have for their object either public
use or the interest of private persons. (549)
What is legal easement?
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PROPERTY NOTES

Legal easements are easements imposed or mandated by law, and a. By agreement of the interested parties provided it is not
which have for their object: prohibited by law or injurious to a third person
o either public use or b. In the absence of agreement, by the provisions of general
o the interest of private properties and local laws and ordinances for the general welfare; and
They become a continuing property right c. In default of a and b, by articles 634 to 687, inclusive of
the Civil Code.
Kinds of legal easements
1. Public legal easements or those for public or communal use Case doctrine
2. Private legal easements or those for the interest of private persons or Where the land was originally public land, and awarded by free patent
for private use, which include those relating to with a reservation for a legal easement of a right-of-way in favor of the
a. Waters government, just compensation need not be paid for the taking of a part
b. Right of way thereof for public use as an easement of a right of way, unlike if the land
c. Party wall were originally private property. (NIA v CA)
d. Light and view
e. Drainage SECTION TWO EASEMENTS RELATING TO WATERS
f. Intermediate distances
g. Against nuisance Art. 637. Lower estates are obliged to receive the waters which
h. Lateral and subject support naturally and without the intervention of man descend from the higher
estates, as well as the stones or earth which they carry with them.
Case doctrine The owner of the lower estate cannot construct works which
See Villanueva v Velasco cited in Art 631 will impede this easement; neither can the owner of the higher estate
make works which will increase the burden. (552)

Art. 635. All matters concerning easements established for public or
communal use shall be governed by the special laws and regulations
relating thereto, and, in the absence thereof, by the provisions of this
Title. (550)
Art. 636. Easements established by law in the interest of private
persons or for private use shall be governed by the provisions of this
Title, without prejudice to the provisions of general or local laws and
ordinances for the general welfare.
These easements may be modified by agreement of the
interested parties, whenever the law does not prohibit it or no injury is
suffered by a third person. (551a)


Governing laws
1. Public legal easements they are governed primarily by the special
laws and regulations relating thereto, and by the Civil Code (634-687),
inclusive.
2. Private legal easements
Legal easements relating to waters
1. Natural drainage (637)
2. Drainage of buildings (674)
3. Easement on riparian banks for navigation, floatage, fishing, salvage,
and towpath (638)
4. Easement of a dam (639, 647)
5. Easement for drawing water or for watering animals (640-641)
6. Easement of aqueduct (642-646)
7. Easement for the construction of a stop lock or sluice gate (647)
Natural drainage of lands
This article imposes a natural easement upon the lower estates which
are obliged to receive the waters which naturally and without the
intervention of man descend from the higher estates, as well as the
stones or earth carried by the waters.
This easement is a continuous one and may be extinguished by non-
user for the period of 10 years required by law. Thus, if a dike was

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constructed by the servient owner (an act contrary to the easement), the
action to destroy the dike is barred if brought only after 1 years.
Duty of servient owner the owner of the lower estate cannot construct
works which will impede this easement, such as walls, ditches or
fences, or a dam which blocks the natural flow of the waters. The
dominant owner may demand their removal or destruction and recover
damages. The servient owner may construct works to regulate the flow
of waters, but not those which will impede the easement.
Duty of dominant owner the owner of the higher tenement cannot
make works which will increase the burden. If the waters are the result
of artificial development, or are the overflow from irrigation dams, or
proceed from industrial establishments recently set up, the owner of the
lower estate shall be entitled to compensation for his loss or damage.
o But the dominant owner is not prohibited from cultivating
his land or constructing works to regulate the descent of
the waters to prevent erosion to his land and as long as he
does not impede the natural flow of the waters and
increase the burden of the lower estate, he is not liable for
damages.
Remember Remman v CA? The case with the pig shit? It also said that tax
returns per se could not reflect the total amount of damages suffered by a
party, as income losses from a portion of his property could be offset by any
profit derived from the rest of said property or from other sources of income.
Art. 638. The banks of rivers and streams, even in case they are of
private ownership, are subject throughout their entire length and within
a zone of three meters along their margins, to the easement of public
use in the general interest of navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable rivers
are, furthermore, subject to the easement of towpath for the exclusive
service of river navigation and floatage.
If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
Public easements on banks of river
Banks of rivers and streams, whether they are of public or private
ownership, are subject to easement of public use for:
1. Navigation
2. Floatage
3. Fishing
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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4. Salvage
5. With respect to estates adjourning banks of navigable rivers, also to
easement of towpath.
If the land is of public ownership, there is no indemnity; if of private
ownership, the proper indemnity shall first be paid before it may be
occupied. Riparian owners cannot be required to subject their property
to the easement for the benefit of the public without prior indemnity.
The width of the zone subject to the easement is 3 meters throughout
the entire length of the bank along its margin.
The easement established by Article 638 does not apply to canals or
esteros.
Art. 639. Whenever for the diversion or taking of water from a river or
brook, or for the use of any other continuous or discontinuous stream,
it should be necessary to build a dam, and the person who is to
construct it is not the owner of the banks, or lands which must support
it, he may establish the easement of abutment of a dam, after payment
of the proper indemnity. (554)
Abutment of buttress of a dam
A person who needs to build a dam to divert or take water from a river
or brook but is not the owner of the banks or lands which must support
the dam, may be allowed the easement of abutment or buttress of a
dam (estribo de presa)
He must seek the permission of the owner, and in case of the latter s
refustal, he must secure authority from the proper administrative agency
which will conduct the necessary investigation in which all interested
parties are given opportunity to be heard. In establishing the easement,
the proper indemnity must be paid.
Where the construction of a dam is unauthorized, the same can be
considered a private nuisance and may be lawfully destroyed or
removed by the injured landowner or by any persona acting under his
directions.
Case doctrine
An easement of buttress can be imposed by administrative authority
with respect to land lying adjacent to public or private waters; but in
such case it is required that an investigation of record shall be made
before the easement of buttress is decreed. The making of the
investigation of record is an essential prerequisite to the exercise of the
power. (Solis v Pujeda)
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Art. 640. Compulsory easements for drawing water or for watering
animals can be imposed only for reasons of public use in favor of a
town or village, after payment of the proper indemnity. (555)
Art. 641. Easements for drawing water and for watering animals carry
with them the obligation of the owners of the servient estates to allow
passage to persons and animals to the place where such easements
are to be used, and the indemnity shall include this service. (556)
Drawing water or watering animals
This is a personal easement which includes the accessory easement of
passage or right of way of persons and animals to the place where the
easement is to be used.
Requisites are:
1. Must be imposed for reasons of public use;
2. Must be in favor of a town or village; and
3. Must be payment of proper indemnity.
Art. 642. Any person who may wish to use upon his own estate any
water of which he can dispose shall have the right to make it flow
through the intervening estates, with the obligation to indemnify their
owners, as well as the owners of the lower estates upon which the
waters may filter or descend. (557)
Art. 643. One desiring to make use of the right granted in the preceding
article is obliged:
(1) To prove that he can dispose of the water and that it is
sufficient for the use for which it is intended;
(2) To show that the proposed right of way is the most
convenient and the least onerous to third persons;

 (3) To indemnify the owner of the servient estate in the
manner determined by the laws and regulations. (558)
Art. 644. The easement of aqueduct for private interest cannot be
imposed on buildings, courtyards, annexes, or outhouses, or on
orchards or gardens already existing. (559)
Easement of aqueduct what is it?!
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Easement of aqueduct is 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.
The easement is provided in Article 642. It gives the right to make water
flow through or under intervening or lower estates.
Requisites?
The person desiring to make use of the easement must:
1. Prove that he has the capacity to dispose of the water;
2. Prove that the water is sufficient for the use intended;
3. Show that the proposed right of way is the most convenient and the
least onerous to third persons; and
4. Pay indemnity to the owner of the servient estate.
But where the number of years that have elapsed since the
easement had first come into existence and the subsequent
changes in ownership of lots involved would make it impossible
to present proof of indemnity to the owner of the servient
estate, this requisite has been deemed to be complied with.
(Salazar v Gutierrez)
The easement cannot be imposed over buildings, courtyards, annexes
or gardens if the easement is for private interest.
Case doctrines
The Spanish Law of Waters allows the creation of a compulsory
easement of aqueduct for the purpose of establishing or extending an
irrigation system, and there is nothing to the contrary in the Civil Code.
The registration of the servient lot without the corresponding registration
of the easement of aqueduct on the title cannot summarily terminate it
30 years thereafter where the original registered owner of the servient
lot allowed the easement to continue in spite of such non-registration.
The least that can be said is that he either recognized its existence as a
compulsory servitude on his estate or voluntarily agreed to its
establishment and continuance. And subsequent purchasers of the
servient estate cannot capitalize on the absence of annotation on the
title where they are aware of the existence of the easement and likewise
allowed it to continue for 26 years after they acquired title. (Salazar v
Gutierrez)
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Art. 645. The easement of aqueduct does not prevent the owner of the
servient estate from closing or fencing it, or from building over the
aqueduct in such manner as not to cause the latter any damage, or
render necessary repairs and cleanings impossible. (560)
Right of owner of servient estate
The servient owner may close or fence his estate, or build over the
aqueduct so long as no damage is caused to the aqueduct or the
necessary repairs and cleaning of the same are not rendered
impossible.
He can construct works he may deem necessary to prevent damage to
himself provided he does not impede or impair, in any manner
whatsoever, the use of the easement just like the owner of the lower
estate on which an easement of natural drainage has been established.
If he does impair, the dominant owner may ask for the removal or
destruction of such works with a right to indemnity for damages.
Art. 646. For legal purposes, the easement of aqueduct shall be
considered as continuous and apparent, even though the flow of the
water may not be continuous, or its use depends upon the needs of the
dominant estate, or upon a schedule of alternate days or hours. (561)
Easement considered as continuous and apparent
For legal purposes, the easement is considered continuous and
apparent and therefore, may be susceptible of acquisitive prescription.
Art. 647. One who for the purpose of irrigating or improving his estate,
has to construct a stop lock or sluice gate in the bed of the stream
from which the water is to be taken, may demand that the owners of
the banks permit its construction, after payment of damages, including
those caused by the new easement to such owners and to the other
irrigators. (562)
Construction of a stop lock or sluice gate
In Article 639, the purpose of building a dam is to divert water from a
river or brook. Here, the purpose of the construction is to take water for
irrigation, or to improve an estate.
In both cases, the construction is on the estate of another and proper
indemnity has to be paid. Furthermore, no damage must be caused to
third persons.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Art. 648. The establishment, extent, form and conditions of the
servitudes of waters, to which this section refers, shall be governed by
the special laws relating thereto insofar as no provision therefor is
made in this Code. (563a) 

SECTION THREE EASEMENT OF RIGHT OF WAY
Art. 649. The owner, or any person who by virtue of a real right may
cultivate or use any immovable, which is surrounded by other
immovables pertaining to other persons and without adequate outlet to
a public highway, is entitled to demand a right of way through the
neighboring estates, after payment of the proper indemnity.
Should this easement be established in such a manner that its
use may be continuous for all the needs of the dominant estate,
establishing a permanent passage, the indemnity shall consist of the
value of the land occupied and the amount of the damage caused to
the servient estate.
In case the right of way is limited to the necessary passage for
the cultivation of the estate surrounded by others and for the gathering
of its crops through the servient estate without a permanent way, the
indemnity shall consist in the payment of the damage caused by such
encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts. (564a)
Art. 650. The easement of right of way shall be established at the point
least prejudicial to the servient estate, and, insofar as consistent with
this rule, where the distance from the dominant estate to a public
highway may be the shortest. (565)
Easement of right of way DEFINED!
Easement of right of way is the right granted by law 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 the proper indemnity.
Requisites of the easment (based on de Leon)
1. Claimant must be an owner of enclosed immovable or one with real
right
2. No adequate outlet to a public highway
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3. Right of way must be absolutely necessary
4. The isolation must not be due to the claimant s own act
5. The easement must be established at the point least prejudicial
6. There must be payment of proper indemnity
Claimant must be an owner of enclosed immovable or one with real right
Not only the owner but any person who by virtue of a real right may
cultivate or use an immovable, may demand a right of way. A
usufructuary may demand a right of way.
1. A mortgagee is not entitled to demand because it is necessary that
the land be cultivated or used by virtue of a right like that of a
usufruct
2. A mere lessee cannot demand the legal servitude of way because
his action is against the lessor who is bound to maintain him in the
enjoyment of the lease. However, if the lessee registers the lease in
the Registry of Property, it becomes a real right, and the lessee
would then be entitled to demand the right of way.
No adequate outlet to a public highway
Covers cases when there is absolutely no outlet or access, or even
when there is one, the same is not adequate (like when it s dangerous,
very costly, etc)
The owner of the servient estate cannot obstruct the use of the
easement if the proposed new location for it is farther and is not as
convenient.
Right of way must be absolutely necessary
The right cannot be claimed merely for the convenience of the owner of
the enclosed estate.
Owner must show that the compulsory easement is absolutely
necessary for the normal enjoyment of his property. Even if necessary
but it can be satisfied without imposing the servitude, the same should
not be imposed.
The easement can be established for the benefit of a tenement with an
inadequate outlet, but not when the outlet is merely inconvenient.
Isolation must not be due to the claimant s own act
If he constructs a permanent structure and effectively blocks himself out
from the pubic highway, then he is stupid and he will not be granted an
easement.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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The easement must be established at the point least prejudicial to the
servient estate
The shortest is not always the least prejudicial.
The criterion of least prejudicial shall be observed although the distance
may not be the shortest or is even the longest.
In other words, this is the TEST - the one where the way is shortest and
will cause the least damage should be chosen.
o But if these two circumstances do not concur in a single
tenement, the way which will cause the least damage should
be used, even if it would not be the shortest.
Between a right of way that will demolish a house and
another one which will merely cut down a tree (yet is
a longer route to the highway), the latter shall prevail.
The rule is different in eminent domain proceedings wherein the grantee
of the power of eminent domain can choose as he pleases, as long as it
is not capricious and wantonly injurious.
Proper indemnity
The right can be acquired only after the proper indemnity has been paid.
If the passage is of continuous and permanent nature (continuous for all
the needs of the dominant estate), the indemnity consists of the value of
the land occupied plus amount of damages caused to the servient
estate; and
If it is temporary (limited to the necessary passage for the cultivation of
the enclosed estate and for the gathering of its crops through the
servient estate), indemnity consists in the payment of the damage
caused to the servient estate.
Even if the easement is for a laudable purpose, there is still a need for
compensation.
BUT
o Where the land was originally public land, and awarded by free
patent and was registered with an OCT and TCT with a
reservation for a legal easement of a right-of-way in favor of
the government, just compensation need not be paid for the
taking of a part thereof for public use as an easement of a right
of way, unlike if the land were originally private property. (NIA v
CA)
What are the kinds of easements of right of way?
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1. Private, when it is established in favor of a private person, such as the
right granted in Article 649; or
2. Public, when it is available in favor of the community or the public at
large.
Acquisition and extinguishment by prescription
The easement of right of way, being discontinuous, cannot be acquired
ny prescription. It may be apparent, but it is not a continuous easement.
De Leon gives some reasons why the easement of right of way should
be considered as continuous in page 480 of his book.
Case doctrines
Requisites of the easement (based on Valdez v Tabisula; Lee,
Villanueva; etc)
1. Claimant must be an owner of enclosed immovable or one with real
right
2. Property is surrounded by other immovables and has no adequate
outlet to a public highway
3. Proper indemnity must be paid
4. The isolation is not the result of the owner of the dominant estate s
own acts
5. The right of way claimed is at the least prejudicial to the servient
estate
6. To the extent consistent with the foregoing rule, the distance from
the dominant estate to a public highway may be the shortest.
The onus of proving the existence of these requisites lies on the owner
of the dominant estate.
Requisites na naman! (based on Mejorada v Vertudazo)
1. The estate is surrounded by other immovables and is without
adequate outlet to a public highway;
2. After payment of the proper indemnity
3. The isolation was not due to the proprietor s acts; and
4. The right of way claimed is at a point least prejudicial to the servient
estate.
One whose land is enclosed by the lands of others at one acquires the
right to demand an easement of way to the nearest street or road, but
his failure to do so does not constitute a renunciation of his right nor
does the right to demand such easement prescribe under Article 631.
The right to demand a right of way is imprescriptible. (Francisco v Paez)
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Art. 651. The width of the easement of right of way shall be that which
is sufficient for the needs of the dominant estate, and may accordingly
be changed from time to time. (566a)
Width of the passage
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.
The easement established may thus be changed or modified from time
to time as the subsequent needs of the dominant estate may demand.
Art. 652. Whenever a piece of land acquired by sale, exchange or
partition, is surrounded by other estates of the vendor, exchanger, or
co-owner, he shall be obliged to grant a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified by
the donee for the establishment of the right of way. (567a)
Art. 653. In the case of the preceding article, if it is the land of the
grantor that becomes isolated, he may demand a right of way after
paying a indemnity. However, the donor shall not be liable for
indemnity. (n)
Where land of transferor or transferee enclosed
These two articles are exceptions to the requirement in Article 649
regarding the payment of indemnity.
If the land transferred is surrounded by other estates of the vendor,
exchanger or co-owner, the transferee is not obliged to pay indemnity
for the easement as the consideration for the transfer is presumed to
include the easement without the indemnity.
o If the right of way becomes useless for some reason or
another, it is no longer than transferor s fault. Apply Article 642.
o Article 652 is not applicable in case of simple donation
because the donor receives nothing for his property.
If it is the land of the grantor that becomes isolated, he may demand a
right of way but shall be obliged to pay indemnity unless the purchaser
agreed to grant right without indemnity.
o The donor shall not be liable for indemnity as it is considered a
tacit condition of the donation.
Art. 654. If the right of way is permanent, the necessary repairs shall be
made by the owner of the dominant estate. A proportionate share of
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the taxes shall be reimbursed by said owner to the proprietor of the
servient estate. (n)
Responsibility for repairs and taxes
This applies if the right of way is permanent.
The servient owner retains ownership of the passageway; hence, he
pays all the taxes.
The dominant owner is liable for the necessary repairs and the
proportionate share of the taxes paid by the servient owner, meaning
the amount of taxes corresponding to the portion on which the
easement is established.
Art. 655. If the right of way granted to a surrounded estate ceases to be
necessary because its owner has joined it to another abutting on a
public road, the owner of the servient estate may demand that the
easement be extinguished, returning what he may have received by
way of indemnity. The interest on the indemnity shall be deemed to be
in payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened
giving access to the isolated estate.
In both cases, the public highway must substantially meet the
needs of the dominant estate in order that the easement may be
extinguished. (568a)
Extinguishment of compulsory easement of right of way
This applies to compulsory easement of right of way.
The two causes of extinguishment are:
1. The joining of the isolated estate to another abutting a public road,
and
2. Opening a new road which gives access to the estate.
The new outlet must be adequate.
The extinguishment is not automatic because the law says that the
owner of the servient estate may demand that the easement be
extinguished, if he so desires. So, the dominant owner cannot ask for
the return of the indemnity, if the servient owner chooses to allow the
continuation of the easement.
The servient owner is not liable to pay interest on the indemnity as the
interest is deemed to be payment for the use of the easement.
Art. 656. If it be indispensable for the construction, repair,
improvement, alteration or beautification of a building, to carry
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
materials through the estate of another, or to raise therein scaffolding
or other objects necessary for the work, the owner of such estate shall
be obliged to permit the act, after receiving payment of the proper
indemnity for the damage caused him. (569a)
Temporary easement of right of way
This applies to a right of way which is essentially temporary or
transitory.
It is sufficient that great inconvenience, difficulty, or expense would be
encountered if the easement was not granted.
Temporary easement is allowed only after the payment of the proper
indemnity.
Case doctrine
The installation of electric power lines is a permanent easement not
covered by Article 656. Article 656 deals only with the temporary
easement of passage. (Preysler, Jr v CA)
Art. 657. Easements of the right of way for the passage of livestock
known as animal path, animal trail or any other, and those for watering
places, resting places and animal folds, shall be governed by the
ordinances and regulations relating thereto, and, in the absence
thereof, by the usages and customs of the place.
Without prejudice to rights legally acquired, the animal path
shall not exceed in any case the width of 75 meters, and the animal trail
that of 37 meters and 50 centimeters.
Whenever it is necessary to establish a compulsory easement
of the right of way or for a watering place for animals, the provisions of
this Section and those of Articles 640 and 641 shall be observed. In
this case the width shall not exceed 10 meters. (570a) 

Right of way for the passage of livestock, watering places
The easements shall be governed by the ordinances, regulations, and in
their absence, usages and customs of the place.
Animal path max width: 75 meters
Animal trail max width: 37.5 meters
For drawing waters and for watering animals max width: 10 meters
o In the last case, they can be imposed only for reasons of public
use in favor of a town or barrio and only after payment of the
proper indemnity.
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SECTION FOUR EASEMENT OF PARTY WALL Art. 659. The existence of an easement of party wall is presumed,
unless there is a title, or exterior sign, or proof to the contrary:
Art. 658. The easement of party wall shall be governed by the (1) In dividing walls of adjoining buildings up to the point of
provisions of this Title, by the local ordinances and customs insofar as common elevation;
they do not conflict with the same, and by the rules of co-ownership. (2) In dividing walls of gardens or yards situated in cities,
(571a) towns, or in rural communities; 

(3) In fences, walls and live hedges dividing rural lands. (572)
What s an easement of party wall?
It refers to all those mass of rights and obligations emanating from the When is the existence of a party wall presumed?
existence and common enjoyment of wall, fence, enclosures or hedges, 1. In dividing walls of adjoining buildings up to the point of common
by the owners of adjacent buildings and estates separated by such elevation;
objects. 2. In dividing walls of gardens or yards situated in cities, towns, or in rural
communities; or
What is a party wall, what is its nature? 3. In fences, walls and live hedges dividing rural lands.
A party wall is a common wall which separates two estates, built by
common agreement at the dividing line such that it occupies a portion of The legal presumption is juris tantum; it may be rebutted by a title or
both estates on equal parts. exterior sign or any other proof showing that the entire wall in
It is a kind of forced co-ownership in which the parties are prt-owners. controversy belongs exclusively to one of the adjoining property owners.
Each owner owns part of the wall but it cannot be separated from the
other portions belonging to the others. Case doctrine
An owner may use a party wall to the extent of the ½ portion on his A wall separating two adjoining buildings, built on the land on which one
property. Not all common walls or walls in co-ownership are party walls. of these buildings stands, is not a party wall when there is a drain along
(A wall built on a co-owned lot is a common wall, not a party wall.) its top to carry away the water from the roof and eaves of the building
belonging to the owner of the land on which the wall is erected; and also
when a part of the wall is covered by the roof of the said building, the
Party Wall Co-ownership
construction of which demonstrates that the wall belongs exclusively to
The shares of the co-owners cannot Shares of the co-owners can be
the owner of the building of which it forms part. (Lao v Heirs of Alburo)
be physically segregated but they divided or separated physically.
can be physically identified. Before such division, a co-owner
Art. 660. It is understood that there is an exterior sign, contrary to the
cannot point to any definite portion of
easement of party wall:
the property as belonging to him.
(1) Whenever in the dividing wall of buildings there is a
No such limitation None of the co-owners may use the window or opening;
community property for his exclusive
(2) Whenever the dividing wall is, on one side, straight and
benefit
plumb on all its facement, and on the other, it has similar conditions on
Any owner may free himself from Partial renunciation is allowed the upper part, but the lower part slants or projects outward; 

contributing to the cost of repairs (3) Whenever the entire wall is built within the boundaries of
and construction of a party wall by one of the estates; 

renouncing all his rights thereto. (4) Whenever the dividing wall bears the burden of the binding
beams, floors and roof frame of one of the buildings, but not those of
the others; 


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(5) Whenever the dividing wall between courtyards, gardens,
and tenements is constructed in such a way that the coping sheds the
water upon only one of the estates; 
 common, shall be borne by all the owners of the lands or tenements
(6) Whenever the dividing wall, being built of masonry, has
stepping stones, which at certain intervals project from the surface on
one side only, but not on the other; 
 contributing to this charge by renouncing his part-ownership, except
(7) Whenever lands inclosed by fences or live hedges adjoin
others which are not inclosed.
In all these cases, the ownership of the walls, fences or
hedges shall be deemed to belong exclusively to the owner of the
property or tenement which has in its favor the presumption based on
any one of these signs. (573)
Exterior signs rebutting presumption
This article mentions some exterior signs rebutting the presumption of a
party wall. The wall becomes the exclusive property of the owner of the
estate which has in its favor the presumption based on any of the above
exterior signs.
The enumeration is merely illustrative, and is not exclusive.
The exterior signs may contradict each other. In such case, the court
shall decide the matter taking into consideration all the circumstances.
o But in case of conflict between a title evidencing ownership to
a wall and an exterior sign, the former must prevail, for the
latter merely gives rise to an inference of ownership.
Art. 661. Ditches or drains opened between two estates are also
presumed as common to both, if there is no title or sign showing the
contrary.
There is a sign contrary to the part-ownership whenever the
earth or dirt removed to open the ditch or to clean it is only on one side
thereof, in which case the ownership of the ditch shall belong
exclusively to the owner of the land having this exterior sign in its
favor. (574)
Bitches or drains between two estates (hehe)
The deposit of earth or debris on one side alone is an exterior sign that
the owner of that side is the owner of the ditch or the drain.
Again, this is rebuttable.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Art. 662. The cost of repairs and construction of party walls and the
maintenance of fences, live hedges, ditches, and drains owned in
having the party wall in their favor, in proportion to the right of each.
Nevertheless, any owner may exempt himself from
when the party wall supports a building belonging to him. (575)
Contribution to cost of repairs and construction of party walls
The part-owners of the party wall shall contribute to the cost in the
proportion to their respective interests.
o But if the cause of the repairs is due to the fault of just one,
then he alone shall bear the costs.
Any owner may free himself from contributing to the charge by
renouncing his rights in the party wall unless it actually supports his
building.
The renunciation will include the land on which the party wall is
constructed.
Art. 663. If the owner of a building, supported by a party wall desires to
demolish the building, he may also renounce his part-ownership of the
wall, but the cost of all repairs and work necessary to prevent any
damage which the demolition may cause to the party wall, on this
occasion only, shall be borne by him. (576)
Demolish that building! Demolish!
An owner may also renounce his part ownership of a party wall if he
desires to demolish his building supported by the wall.
He shall bear all the expenses of repairs and work necessary to prevent
any damage which the demolition may cause to the party wall.
Art. 664. Every owner may increase the height of the party wall, doing
at his own expense and paying for any damage which may be caused
by the work, even though such damage be temporary.
The expenses of maintaining the wall in the part newly raised
or deepened at its foundation shall also be paid for by him; and, in
addition, the indemnity for the increased expenses which may be
necessary for the preservation of the party wall by reason of the
greater height or depth which has been given it.
If the party wall cannot bear the increased height, the owner
desiring to raise it shall be obliged to reconstruct it at his own expense
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and, if for this purpose it be necessary to make it thicker, he shall give
the space required from his own land. (577)
Art. 665. The other owners who have not contributed in giving
increased height, depth or thickness to the wall may, nevertheless,
acquire the right of part-ownership therein, by paying proportionally
the value of the work at the time of the acquisition and of the land used
for its increased thickness. (578a)
Increase the height of party wall!
An owner is given the right to increase the height of a party wall subject
to the following conditions:
1. He must do so at his own expense;
2. He must pay for any damage which may be caused thereby even if
damage is temporary;
3. He must bear the cost of maintaining the portion added; and
4. He must pay the increased cost of preservation of the wall.
He shall be obliged to reconstruct the wall at his expense if it is
necessary so that the wall can bear the increased height, and if
additional thickness is required, he shall provide the space therefore
from his own land.
The other owners cannot object to the work as long as the above
conditions are complied with.
The owner who makes the addition acquires ownership unless the other
owners pay proportionately the value of the work at the time of the
acquisition (not the construction) and of the land used for the wall s
increased thickness.
Art. 666. Every part-owner of a party wall may use it in proportion to
the right he may have in the co-ownership, without interfering with the
common and respective uses by the other co-owners. (579a) 
 The easement of light and view is either positive or negative.
Proportional use of party wall
If Tweet owns 2/3 of the party wall and Plurk owns 1/3, Tweet may use
the wall (like inserting a beam) up to 2/3 of its thickness, and Plurk can
do the same up to 1/3.
SECTION FIVE EASEMENT OF LIGHT AND VIEW
Art. 667. No part-owner may, without the consent of the others, open
through the party wall any window or aperture of any kind. (580)
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
WHAT IS AN EASEMENT OF LIGHT?!?!
Easement of light (jus luminum) is the right to admit light from the
neighboring estate by virtue of the opening of a window or the making of
certain openings.
WHAT IS AN EASEMENT OF VIEW?!?!
Easement of view (jus prospectus) is the right to make openings or
windows, to enjoy the view through the estate of another and the power
to prevent all constructions or works which would obstruct such view or
make the same difficult.
It necessarily includes the easement of light.
Making of opening through a party wall
A part-owner cannot exercise an act which implies full ownership of the
wall by making use of all its thickness.
Remember, a window in the dividing wall of buildings is an exterior sign
which rebuts the presumption that the wall is a party wall. One part-
owner may not, therefore, make any window or opening of any kind thru
a party wall without the consent of the others.
Art. 668. The period of prescription for the acquisition of an easement
of light and view shall be counted:
(1) From the time of the opening of the window, if it is through
a party wall; or
(2) From the time of the formal prohibition upon the proprietor
of the adjoining land or tenement, if the window is through a wall on
the dominant estate. (n)
Prescriptive period for acquisition of easement of light and view
When is it positive?
o It is considered positive if made through a party wall or even if
made on one s own wall, if the window is on a balcony or
projection extending over the adjoining property.
o When a window is opened through a party wall, an apparent
and continuous easement is created from the time of such
opening. But there is no true easement as long as the right to
prevent its use exists.
o The adjoining owner can order the window closed within 10
years from the time of the opening of the window.
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When is it negative?
o It is considered negative if the window is made through a wall
on the dominant estate.
o The 10-year period of prescription commences from the time of
the formal prohibition (instrument acknowledged by a notary
public) upon the adjoining owner.
o Before the expiration of the prescriptive period, the window
exists by mere tolerance of the adjoining owner who always
retains the right to have it closed or to build an obstruction,
although the opening was made more than 10 years after he
decided to exercise his right.
The opening by Xyzal was made in 1990 but he made
a formal notarial demand prohibiting Yeeyoo to
obstruct the view only in 1994, Yeeyoo may still
demand the closure of the window in 2001.
Case doctrines
When the construction of windows and balconies does not constitute an
actual invasion of the rights of another, but is a lawful exercise of an
inherent right, the easement of light and view is negative. (Fabie v
Lichauco)
When a window is opened in a party wall, the express or implied
consent of the part owner affords a basis for the acquisition of a
prescriptive title.
When a window is opened in the wall of a neighbor, prescription
commences to run from the date of the opening of the windows and
ripens into title when the specified time has elapsed without opoosition
on the part of the owner of the wall. (Cortes v Yu Tibo)
Art. 669. When the distances in Article 670 are not observed, the owner
of a wall which is not party wall, adjoining a tenement or piece of land
belonging to another, can make in it openings to admit light at the
height of the ceiling joints or immediately under the ceiling, and of the
size of thirty centimeters square, and, in every case, with an iron
grating imbedded in the wall and with a wire screen.
Nevertheless, the owner of the tenement or property adjoining
the wall in which the openings are made can close them should he
acquire part-ownership thereof, if there be no stipulation to the
contrary.
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Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
He can also obstruct them by constructing a building on his
land or by raising a wall thereon contiguous to that having such
openings, unless an easement of light has been acquired. (581a)
Openings at height of ceiling joists to admit light
When the wall is not a party wall, the owner may make an opening for
the purpose of admitting light and air, but not for view. The restrictions
are the following:
1. The size must not exceed 30 cm square;
2. The opening must be at the height of the ceiling joists or
immediately under the ceiling;
3. There must be an iron grating imbedded in the wall; and
4. There must be a wire screen.
When the wall becomes a party wall, a part-owner can order the closure
of the opening because no part-owner may make an opening through a
party wall without the consent of the others. It can also obstruct the
opening unless an easement of light has been acquired by prescription,
in which case the servient owner may not impair the easement.
Case doctrine
If a house consists of more than one story, each story may have the
same openings which are provided by law for one house. The purpose
of the law is to provide light to the rooms and it is evident that the rooms
of the lower stories have a much need for light as those of the top story.
(Choco v Santamaria))
When the house has been built, with two meters of the dividing line (Art
670), no other windows than those provided in this article may be
opened in its walls. (Saez v Figueras)
Art. 670. No windows, apertures, balconies, or other similar projections
which afford a direct view upon or towards an adjoining land or
tenement can be made, without leaving a distance of two meters
between the wall in which they are made and such contiguous
property.
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of sixty
centimeters.
The nonobservance of these distances does not give rise to
prescription. (582a)
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Art. 671. The distance referred to in the preceding article shall be
measured in cases of direct views from the outer line of the wall when
the openings do not project, from the outer line of the latter when they
do, and in cases of oblique view from the dividing line between the two
properties. (583)
Direct and oblique views
Article 760 requires a distance of:
o For direct view, 2 meters
o For oblique view, 60 cm
Article 761 provides the manner of measuring the distance.
o For direct view from the outer line of the wall when the
openings do not project; from the outer line of the openings
when they do project
o For oblique view from the dividing line
An owner can build within the minimum distance or even up to the
dividing line provided no window is opened except as provided in Article
669.
When windows are opened, without observing the required legal
distances, the adjoining owner has a right to have them closed.
The non-observance of the distances does not give rise to prescription.
o The mere opening of the windows in violation of Article 770
does not give rise to the servitude by prescription.
o It s a negative easement because the window is through a wall
of the dominant estate and so prescription may still be
acquired after 10 years from the time of notarial prohibition.
Art. 672. The provisions of Article 670 are not applicable to buildings
separated by a public way or alley, which is not less than three meters
wide, subject to special regulations and local ordinances. (584a)
Where buildings separated by a public way or alley
The distance in 670 is not compulsory where there is a public way or
alley provided that it is not less than 3 meters wide.
Case doctrine
A private alley opened to the use of the general public falls within the
provision of Article 672.
Art. 673. Whenever by any title a right has been acquired to have direct
views, balconies or belvederes overlooking an adjoining property, the
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
owner of the servient estate cannot build thereon at less than a
distance of three meters to be measured in the manner provided in
Article 671. Any stipulation permitting distances less than those
prescribed in Article 670 is void. (585a)
Where easement of direct view has been acquired
The word title as used in Article 673 refers to any of the modes of
acquiring easements (contract, will, donation or prescription).
Whenever the easement of direct view has been acquired by such title,
there is created a true easement, the owner of the servient estate
cannot build thereon at less than a distance of 3 meters from the
boundary line.
The distance may be increased or decreased by stipulation of the
parties provided that in case of decrease, the minimum distance of 2
meters or 60 cm in 670 must be observed. If not, then it s void.


SECTION SIX DRAINAGE OF BUILDINGS
Art. 674. The owner of a building shall be obliged to construct its roof
or covering in such manner that the rain water shall fall on his own
land or on a street or public place, and not on the land of his neighbor,
even though the adjacent land may belong to two or more persons, one
of whom is the owner of the roof. Even if it should fall on his own land,
the owner shall be obliged to collect the water in such a way as not to
cause damage to the adjacent land or tenement. (586a)
What is an easement of drainage of buildings?
Easement of drainage of buildings is the right to divert or empty the rain
waters from the one s own roof or shed to the neighbor s estate either
drop by drop or through conduits.
Rainwater not to fall on land of another
This article does not really create a servitude, it merely regulates the
use of one s own property by imposing on him the obligation to collect
its rain waters so as not to cause damage to his neighbors, even if he
be a co-owner of the latter.
It s an exemption to Article 637 which obliges lower estates to receive
the waters which naturally flow from higher estates.
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Art. 675. The owner of a tenement or a piece of land, subject to the
easement of receiving water falling from roofs, may build in such
manner as to receive the water upon his own roof or give it another
outlet in accordance with local ordinances or customs, and in such a
way as not to cause any nuisance or damage whatever to the dominant
estate. (587)
Easement to receive falling rainwater
This article deals not with a legal or compulsory easement but with a
voluntary easement to receive rain water falling from the roof of an
adjoining building.
It is an application of Article 629.
Art. 676. Whenever the yard or court of a house is surrounded by other
houses, and it is not possible to give an outlet through the house itself
to the rain water collected thereon, the establishment of an easement
of drainage can be demanded, giving an outlet to the water at the point
of the contiguous lands or tenements where its egress may be easiest,
and establishing a conduit for the drainage in such manner as to cause
the least damage to the servient estate, after payment of the property
indemnity. (583) 
 Whut up, ang layo mo na! Go go go!
Easement giving outlet to rainwater where house surrounded by other
houses
The legal easement of drainage may be demanded subject to the
following conditions:
1. There must be no adequate outlet to the rainwater because the
yard or court of a house is surrounded by other houses;
2. The outlet to the water must be at the point where egress is
easiest, and establishing a conduit for drainage; and
3. There must be payment of proper indemnity.
SECTION 7. INTERMEDIATE DISTANCES AND WORKS
FOR CERTAIN CONSTRUCTIONS AND PLANTINGS
Art. 677. No constructions can be built or plantings made near fortified
places or fortresses without compliance with the conditions required in
special laws, ordinances, and regulations relating thereto. (589)
Constructions and plantings near fortified places
This article establishes an easement in favor of the State.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Art. 678. No person shall build any aqueduct, well, sewer, furnace,
forge, chimney, stable, depository of corrosive substances, machinery,
or factory which by reason of its nature or products is dangerous or
noxious, without observing the distances prescribed by the regulations
and customs of the place, and without making the necessary protective
works, subject, in regard to the manner thereof, to the conditions
prescribed by such regulations. These prohibitions cannot be altered
or renounced by stipulation on the part of the adjoining proprietors.
In the absence of regulations, such precautions shall be taken
as may be considered necessary, in order to avoid any damage to the
neighboring lands or tenements. (590a)
Construction of aqueduct, well, sewer, etc
Constructions which by reason of their nature or products are
dangerous or noxious must comply with the distances prescribed by
local regulations and customs of the place. Necessary protective works
must also be built/done by the owner to avoid damage to neighbors.
The prohibitions cannot be altered by stipulations because of the
underlying public policy of safety.
Art. 679. No trees shall be planted near a tenement or piece of land
belonging to another except at the distance authorized by the
ordinances or customs of the place, and, in the absence thereof, at a
distance of at least two meters from the dividing line of the estates if
tall trees are planted and at a distance of at least fifty centimeters if
shrubs or small trees are planted.
Every landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or tenement be
uprooted.
The provisions of this article also apply to trees which have
grown spontaneously. (591a)
Planting of trees (wow!)
This article establishes a negative easement.
It provides the minimum distance of trees and shrubs from the boundary
line.
They shall be regulated first by local ordinances; and then by the
customs of the place; and in default of both, this interesting article.
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In case of violation, a landowner shall have the right to demand the
uprooting of the tree or shrub even if it has grown spontaneously.
Art. 680. If the branches of any tree should extend over a neighboring
estate, tenement, garden or yard, the owner of the latter shall have the
right to demand that they be cut off insofar as they may spread over
his property, and, if it be the roots of a neighboring tree which should
penetrate into the land of another, the latter may cut them off himself
within his property. (592)
Intrusions of branches or roots into neighboring estates
In case of branches, the adjoining owner must first demand that they be
cut-off by the tree owner insofar as they spread over the former s
property. If the tree owner refuses, he may ask authority from the court.
As to the roots, he may cut them off himself if they penetrate into his
land without the necessity of giving notice to the tree owner, because,
by right of accession, he has acquired ownership over them. It actually
constitutes a direct invasion on his land (grabe naman.)
Art. 681. Fruits naturally falling upon adjacent land belong to the owner
of said land. (n) 
 contemplated in the three preceding articles shall notify all owners of
Kung mahulog yung mangga ni Jhunjhun sa lote ko, akin na ba yung
mangga?
Yes. But the falling must occur naturally. So I have no right to pick fruits
still on branches that extend over my land.
This is not based on occupation nor accession, but by operation of law.
SECTION 8. EASEMENT AGAINST NUISANCE
Art. 682. Every building or piece of land is subject to the easement
which prohibits the proprietor or possessor from committing nuisance
through noise, jarring, offensive odor, smoke, heat, dust, water, glare
and other causes.
Art. 683. Subject to zoning, health, police and other laws and
regulations, factories and shops may be maintained provided the least
possible annoyance is caused to the neighborhood. 
 The adjacent owner is entitled to injunctive relief and to damages for
The Code considers the easement against nuisance as negative
because the proprietor or possessor is prohibited to do something which
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
he could lawfully do were it not for the existence of the easement.
However, a nuisance involves any act of ormission which is unlawful.
So, these two articles are more of a restriction on the right of ownership
than a true easement.
SECTION 9. - Lateral and Subjacent Support (n)
Art. 684. No proprietor shall make such excavations upon his land as
to deprive any adjacent land or building of sufficient lateral or
subjacent support.
Art. 685. Any stipulation or testamentary provision allowing
excavations that cause danger to an adjacent land or building shall be
void.
Art. 686. The legal easement of lateral and subjacent support is not
only for buildings standing at the time the excavations are made but
also for constructions that may be erected.
Art. 687. Any proprietor intending to make any excavation
adjacent lands. 

Proprietor prohibited from making dangerous excavations
Support is lateral when the supported and the supporting lands are
divided by a vertical plane.
Support is subjacent when the supported land is above and the
supporting land is beneath it.
An owner, by virtue of his surface right, may make excavations on his
land, but his right is subject to the limitation in Article 684 that he shall
not deprive any adjacent land or building of sufficient lateral or
subjacent support.
Any stipulation or testamentary provision allowing excavations that
violate Article 684 is void. The limitation applies not only to existing
buildings but also to future constructions.
The notice required in Article 687 is mandatory except where there is
actual knowledge of the proposed excavation.
violation of the provisions.
CHAPTER 3
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VOLUNTARY EASEMENTS
Art. 688. Every owner of a tenement or piece of land may establish
thereon the easements which he may deem suitable, and in the manner
and form which he may deem best, provided he does not contravene
the laws, public policy or public order. (594)
Owner of land may constitute easement
Since easement involves an act of strict dominium, only the owner or at
least one acting in his name and under his authority, may establish a
voluntary easement.
However, a beneficial owner may establish a temporary easement
consistent with his right as such and subject to termination upon the
extinguishment of the usufruct.
Voluntary easements not contractual
Voluntary easements are not contractual in nature, they constitute the
act of the owner.
Art. 689. The owner of a tenement or piece of land, the usufruct of
which belongs to another, may impose thereon, without the consent of
the usufructuary, any servitudes which will not injure the right of
usufruct. (595)
Where property held in usufruct
The owner of property in usufruct may create easements thereon
without the consent of the usufructuary provided the rights of the latter
are not impaired.
Art. 690. Whenever the naked ownership of a tenement or piece of land
belongs to one person and the beneficial ownership to another, no
perpetual voluntary easement may be established thereon without the
consent of both owners. (596)
Creation of perpetual voluntary easement
A usufructuary may impose on the estate held in usufruct a temporary
easement.
Where the naked ownership and the beneficial ownership of the estate
belong to different persons, and the easement is perpetual (permanent
right of way, etc), the consent of both the naked owner and the
beneficial owner is required.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Art. 691. In order to impose an easement on an undivided tenement, or
piece of land, the consent of all the co-owners shall be required.
The consent given by some only, must be held in abeyance
until the last one of all the co-owners shall have expressed his
conformity.
But the consent given by one of the co-owners separately from
the others shall bind the grantor and his successors not to prevent the
exercise of the right granted. (597a)
Imposition of easement on undivided property
The creation of a voluntary easement on property owned in common
requires the unanimous consent of all the co-owners, because it
involves an act of alteration and not merely an alienation of an ideal
share of a co-owner.
The consent may be given separately or successively.
Once consent is given by a co-owner, the same is binding upon him and
his successors unless his consent was vitiated.
After the consent of the last of all of the co-owners has been secured, it
is not necessary for him to give again his consent.
Art. 692. The title and, in a proper case, the possession of an easement
acquired by prescription shall determine the rights of the dominant
estate and the obligations of the servient estate. In default thereof, the
easement shall be governed by such provisions of this Title as are
applicable thereto. (598)
Rules governing voluntary easements ano nga ba?
1. If created by title, such as contract, will, etc, then by such title;
2. If created by prescription, by the form and manner of possession of the
easement (see Art 632); and
3. In default of the above, by the provisions of the Civil Code on easement.
Art. 693. If the owner of the servient estate should have bound himself,
upon the establishment of the easement, to bear the cost of the work
required for the use and preservation thereof, he may free himself from
this obligation by renouncing his property to the owner of the
dominant estate. (599)
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Where servient owner bound himself to bear cost of maintenance of 2. Annoys or offends the senses
easement 3. Shocks, defies or disregards decency or morality
This article applies only where the owner of the servient estate bound 4. Obstructs or interferes with the free passage of any public highway
himself to bear the cost of the work required for the use and or street, or any body of water
preservation of the easement 5. Hinders or impairs the use of property.
He is bound to fulfill the obligation he has contracted in the same way
that such an owner, should he make use of the easement, is bound to Distinguish nuisance from trespass
contribute to the works necessary for the use and preservation of the Nuisance consists of a use of one s own property in such a manner as
servitude. to cause injury to the property or other right or interest of another, and
The servient owner may free himself from his obligation by renouncing generally results from the commission of an act beyond the limits of the
or abandoning his property to the dominant owner. property affected
o The renunciation need not be over the whole servient Trespass is a direct infringement of another s right of property
tenement, but only on the portion thereof affected by the Where there is no actual physical invasion of the plaintiff s property, the
easement (right of way, etc). however, if the easement affects cause of action is for nuisance rather than trespass. An encroachment
the entire servient estate (like natural drainage), then the upon the space about another s land but not upon the land itself is a
renunciation must be total. nuisance, and not a trespass.
o In any case, it cannot be tacit or implied; it must follow the form In trespass, the injury is direct and immediate; in nuisance, it is
required by law for transmission of ownership of real property. consequential.

Distinguish nuisance from negligence

Nuisance Negligence
TITLE EIGHT
Basis of Regardless of the Want of care
NUISANCE breach of duty degree of care or skill
Violation of An absolute duty, the A relative duty, the failure to use
Art. 694. A nuisance is any act, omission, establishment, business, doing of an act which is the degree of care required
condition of property, or anything else which: wrongful in itself under particular circumstances
(1) Injures or endangers the health or safety of others; or in connection with an act or
(2) Annoys or offends the senses; or 
 omission which is not of itself
(3) Shocks, defies or disregards decency or morality; or 
 wrongful
(4) Obstructs or interferes with the free passage of any public
Where the damage is the necessary consequence of what the
highway or street, or any body of water; or
defendant is doing, or is incident to the business itself or the manner in
(5) Hinders or impairs the use of property.
which it is conducted, the law of negligence has no application, and the
law of nuisance applies.
What is the statutory definition of nuisance?
In fine, nuisance is wrongful in itself because of the injury caused
Nuisance is used to refer either to the harm caused or that which regardless of the presence or absence of care, while negligence creates
causes harm, or both liability because of want of proper care resulting to another s injury.
Negligence is not an essential ingredient of a nuisance but to be liable
for a nuisance, there must be resulting injury to another in the Case doctrines
enjoyment of his legal rights. Noise becomes actionable only when it passes the limits of reasonable
Anything which: (IASOH) adjustment to the conditions of the locality and of the needs of the
1. Injures or endangers the health or safety of others maker to the needs of the listener. Injury to a particular person in a

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Art. 716. The owner of a swarm of bees shall have a right to pursue
them to another's land, indemnifying the possessor of the latter for the
damage. If the owner has not pursued the swarm, or ceases to do so
within two consecutive days, the possessor of the land may occupy or
retain the same. The owner of domesticated animals may also claim
them within twenty days to be counted from their occupation by
another person. This period having expired, they shall pertain to him
who has caught and kept them. (612a)
This article talks of domesticated, not domestic animals.
With respect to domestic animals, he can claim them even beyond
twenty days from their occupation unless there is abandonment on his
part.
This article does not apply to a case where a person has found a
domestic animal and kept it for a number of years not knowing its
owner.
A domesticated animal which has not strayed or been abandoned
cannot be acquired by occupation by a person to whose custody it was
entrusted
The periods of two days and twenty days are not periods of limitation,
but conditions precedent to recovery.
Art. 717. Pigeons and fish which from their respective breeding places
pass to another pertaining to a different owner shall belong to the
latter, provided they have not been enticed by some article of fraud.
(613a)
This article does not refer to wild pigeons and fish in a state of liberty or
that live naturally independent of man. Their occupation is regulated by
Art 715.
What is contemplated here are pigeons and fish considered as
domesticated animals subject to the control of man in private breeding
places.
The pigeons and fish must change their breeding place to another
belonging to a different owner.
Unless enticed by some artifice or fraud, the shall belong to the owner
of the breeding place to which they shall have transferred.
Art. 718. He who by chance discovers hidden treasure in another's
property shall have the right granted him in article 438 of this Code.
(614)
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Art. 719. Whoever finds a movable, which is not treasure, must return it
to its previous possessor. If the latter is unknown, the finder shall
immediately deposit it with the mayor of the city or municipality where
the finding has taken place.
The finding shall be publicly announced by the mayor for two
consecutive weeks in the way he deems best.
If the movable cannot be kept without deterioration, or without
expenses which considerably diminish its value, it shall be sold at
public auction eight days after the publication.
Six months from the publication having elapsed without the
owner having appeared, the thing found, or its value, shall be awarded
to the finder. The finder and the owner shall be obliged, as the case
may be, to reimburse the expenses. (615a)
Art. 720. If the owner should appear in time, he shall be obliged to pay,
as a reward to the finder, one-tenth of the sum or of the price of the
thing found. (616a)


See codal for rules. Fairly simple.
This article is based on the fact that one who lost his property does not
necessarily abandon it. If there is no abandonment, the lost thing has
not become res nullius.
Paragraph 4 contemplates implied abandonment.
Title II. - INTELLECTUAL CREATION
Art. 721. By intellectual creation, the following persons acquire
ownership:
(1) The author with regard to his literary, dramatic, historical,
legal, philosophical, scientific or other work;
(2) The composer; as to his musical composition; 

(3) The painter, sculptor, or other artist, with respect to the
product of his art; 

(4) The scientist or technologist or any other person with
regard to his discovery or invention. (n)
Art. 722. The author and the composer, mentioned in Nos. 1 and 2 of
the preceding article, shall have the ownership of their creations even
before the publication of the same. Once their works are published,
their rights are governed by the Copyright laws.
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The painter, sculptor or other artist shall have dominion over
the product of his art even before it is copyrighted.
The scientist or technologist has the ownership of his
discovery or invention even before it is patented. (n)
Art. 723. Letters and other private communications in writing are
owned by the person to whom they are addressed and delivered, but
they cannot be published or disseminated without the consent of the
writer or his heirs. However, the court may authorize their publication
or dissemination if the public good or the interest of justice so
requires. (n)
Art. 724. Special laws govern copyright and patent. (429a) 
 Requisites of donation
Title III. - DONATION
CHAPTER ONE
NATURE OF DONATIONS
Art. 725. Donation is an act of liberality whereby a person disposes
gratuitously of a thing or right in favor of another, who accepts it.
(618a)
Concept of donation
In its generic sense, the term donation includes all forms of gratuitous
dispositions.
The donation the article speaks of and which is governed by Title Three
is the donation proper or the true (or real) donation, or ordinary
donation.
What is the nature and effect of donation?
Although Art 725 defines donation as an act, it is really a contract, with
all the essential requisites of a contract.
It falls under contracts of pure beneficence, the consideration being the
mere liberality of the benefactor.
The Civil Code considers donation not among the contracts that transfer
ownership but as a particular mode of acquiring and transmitting
ownership.
As a mode of acquiring ownership, donation results in an effective
transfer of title over the property from the moment the donor is made
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
aware of the acceptance by the donee, provided that the donee is not
disqualified or prohibited by law from accepting the donation.
Once accepted, it is generally considered irrevocable, and the donee
becomes owner of property, except:
1. on account of officiousness,
2. failure of the donee to comply with the charge imposed on the
donation,
3. or ingratitude.
The effect of donation is to reduce the patrimony or asset of the donor
and to increase that of the donee. Hence, the giving of a mortgage or
any other security does not constitute a donation.
1. Donor must have capacity to make the donation of a thing or right
2. Donative intent (animus donandi) or intent to make the donation out of
liberality to benefit the donee
3. There must be delivery, whether actual or constructive
4. Donee must accept or consent to the donation.
In certain donations, the form prescribed by law must be followed (See
Art 748-749)
The subject matter of a donation may be a thing or right. A person may
be a donee although he is incapacitated to enter into a contract if he is
not specially disqualified by law to accept donations.
Not enough that the act is gratuitous, there must be an intent to benefit
the donee.
The acceptance or consent of the donee is required because no once
can be obliged to receive a benefit against his will.
Case doctrines
The essential elements of donation are as follows:
o Essential reduction of the patrimony of the donor
o Increase in the patrimony of the donee
o The intent to do an act of liberality or animus donandi (Heirs of
Florencio v Heirs of de Leon)
In order that the donation of an immovable property may be valid, the
deed of donation must be made in a public document. The acceptance
must be in a public document as well. (Heirs of Florencio)
Registration of the deed in the Office of the RD or in the Assessor s
Office is not necessary for it to be considered valid and official.
Registration does not vest title. The necessity of registration comes into
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play only when the rights of third persons are affected. Furthermore, the
heirs are bound by the deed of contracts executed by their
predecessors-in-interest. (Heirs of Florencio)
A quitclaim is not a donation where those who executed the same
merely acknowledged the ownership of and better right over the lot by
other persons. (Heirs of Reyes v Calumpang)
Acceptance is necessary in a donation. This applies to all kinds of
donations because the law does not make any distinction. A donation
mortis causa takes effect only after the death of the donor, consequently
it is only after the latter s death that its acceptance maybe made. (Vita v
Montanano)
Prudent thing to do when drafting deeds of donation: Place an
acceptance clause. So, if court considers it inter vivos, then it would
have been accepted. If court considers it mortis causa, then the clause
would be a mere superfluity, still open to the acceptance of the donee
upon the death of the donor. (Atty Abrenica)
The purpose of the formal requirement for acceptance of a donation is
to ensure that such acceptance is duly communicated to the donor. The
actual knowledge by the donor of the construction and existence of the
school building pursuant to the condition of the donation fulfills the legal
requirement that the acceptance of the donation by the donee be
communicated to the donor. (Republic v Silim)
Art. 726. When a person gives to another a thing or right on account of
the latter's merits or of the services rendered by him to the donor,
provided they do not constitute a demandable debt, or when the gift
imposes upon the donee a burden which is less than the value of the
thing given, there is also a donation. (619)
What are the kinds of donation?
1. As to taking effect:
a. Inter vivos or that which takes effect during the lifetime of
the donor
b. Moris causa or that which takes effect upon the death of
the donor
c. Propter nuptias or that by reason of marriage
2. As to consideration
a. Pure or simple; or that the cause of which is the pure
liberality of the donor in consideration of the donee s
merits
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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b. Remuneratory or compensatory; or that which is given out
of gratitude on account of the services rendered by the
donee to the donor, provided they do not constitute a
demandable debt
c. Modal or that which imposes upon the donee a burden
(services to be performed in the future) less than the value
of the gift
d. Onerous or that the value of which is considered the
equivalent of the consideration for which it is given, or that
made for a valuable consideration, and is thus governed
by the rules on oblicon
3. As to effectivity or extinguishment
a. Pure
b. Conditional
c. With a term
Tell me more about remuneratory donations
In this kind of donation, the motivating cause is gratitude,
acknowledgment of a favor, a desire to repay for past services
A donation given for future services cannot be remuneratory
It is necessary that the past services do not constitute a demandable
debt
o A debt is demandable when it can be legally demanded or enforced
by the donee against the donor who has thus an obligation to pay it.
But a debt that has been renounced is not a demandable debt.
What about gratuities and pensions?
While technically a gratuity is different from a donation, in substance,
they are the same.
A gratuity is similar to a pension and is essentially remunerative
donation.
Tell me more about modal donations
In a modal donation, a burden (which is necessarily future) less than the
value of the gift is imposed upon the donee.
If the burden is considered the equivalent of the thing or right given,
then it s an onerous donation.
The burden may consist in a real or personal charge which is capable of
being valued in terms of money.
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What are donations with mixed features?
Strictly speaking, remuneratory donations are those which are given on
account of services rendered by the donee to the donor.
Modal donations are conditional only in the sense that a burden, charge,
condition or limitation is imposed y the donor but the burden is not
technically a condition in the sense of an uncertain event upon which
the effectitivy or extinguishment of donation is made to depend for it is
really a mere obligation imposed by the donor upon the donee as a
consideration
Actually, a modal donation has dual nature, it is partly onerous and
partly simple the portion equivalent to the burden is onerous and is
governed by the rules on obligations and contracts, while the portion
exceeding the value of the burdens imposed, is simple and must follow
the form of donations.
2
Harry donates to Ron a parcel of land worth 300 galleons but Ron has to
give another parcel of land or perform some service worth 100 galleons, the
transaction is onerous as the 100 galleons which must be in the form of a
contract of barter or exchange, and simple as to the 200 galleons which
must follow the form of donations.
Case doctrines
An onerous donation is that which imposes upon the donee a reciprocal
obligation, or to be precise, this is the kind of donation made for a
valuable consideration, the cost of which is equal to or more than the
thing donated. (CJ Yulo v Roman Catholic Bishop of San Pablo)
Since onerous donations are governed by the rules of contracts, the
prescription period is 10 years (based on a written contract), and not the
4-year period based on Article 764 (revocation must be brought within 4
years from the non-compliance of the conditions of the donation). (De
Luna v Abrigo)
Remuneratory donation is one where the donee gives something to
reward past or future services or because of future charges or burdens,
when the value of said services, burdens or charges is less than the
value of the donation. (De Luna -> this definition seems wrong as it
includes future charges, which are necessarily modal)
2 generosity
As of July 2006, the galleon-dollar exchange rate was 1:16.72. It hasn t gone below
1:15 ever since. Wala lang, boring ng property eh. Harry Potter na lang.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Art. 727. Illegal or impossible conditions in simple and remuneratory
donations shall be considered as not imposed. (n)
What s the effect of illegal or impossible conditions?
Under Article 727, the illegal or impossible condition in a simple or
remuneratory donation would be deemed not imposed following the rule
on testamentary dispositions. The donation will be considered as
simiple.
If the donation is onerous (or modal, as to its onerous portion), the
illegal or impossible condition shall render it void. Being contractual in
nature, the rule applicable would be that found in Article 1183 (check
codal, if divisible, only condition will be void)
Case doctrine
The prohibition in the deed of donation against the alienation of the
property for 100 years should be declared as an illegal or
impossible condition within the contemplation of Article 727.
Consequently, such condition shall be considered as not imposed.
No reliance may accordingly be placed on said prohibitory
paragraph in the deed of donation. (Archbishop of Manila v CA)
Art. 728. Donations which are to take effect upon the death of the
donor partake of the nature of testamentary provisions, and shall be
governed by the rules established in the Title on Succession. (620)
Art. 729. When the donor intends that the donation shall take effect
during the lifetime of the donor, though the property shall not be
delivered till after the donor's death, this shall be a donation inter
vivos. The fruits of the property from the time of the acceptance of the
donation, shall pertain to the donee, unless the donor provides
otherwise. (n)
Inter vivos Mortis causa
Takes effect during the lifetime of the Takes effect upon the death of the
donor, independently of his death, donor testator, so that nothing is
even if the actual execution may be conveyed to or acquired by the
deferred until said death donee until said death
Made out of the donor s pure Made in contemplation of his death
without the intention to lose the thing
or its free disposal in case of survival
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Valid if the donor survives the donee Void should the donor survive the Why is it important to make a distinction between inter vivos and mortis
donee causa?
Must follow formalities of donations Must follow formalities for the validity The distinction between a transfer inter vivos and mortis causa is
of a will, otherwise void important as the validity or revocation of the donation depends upon its
Accepted by the donee during his Accepted only after the donor s nature.
lifetime death If the donation is inter vivos, it must be executed and accepted with the
Cannot be revoked except for Always revocable at any time and for formalities prescribed by Articles 748 and 749, except when it is
grounds provided by law (See 760, any reason before the donor s death onerous in which case the rules on contracts apply.
765) (revocable ad nutum at the If it is mortis causa, the donation must be in the form of a will, with all
discretion of the grantor) the formalities for the validity of wills, otherwise it is void and cannot
Right to dispose of the property is Right is retained by the donor while transfer ownership. Moreover, mortis causa can be revoked any time
completely conveyed to the donee he is still alive before the death of the donor. (Ganuelas v Cawed)
Subject to donor s tax Subject to estate tax
What clauses are found in a deed of donation?
1. Habendum or warranty clause (wherein grantor transfers
Designation given to donations not conclusive ownership)
Did the donor intend to transfer ownership of the property donated upon 2. Redendum or reservation clause (wherein grantor reserves
the execution of the donation? If yes, then it is inter vivos. If not, then, it something new to himself)
is merely mortis causa. 3. Acceptance clause
To take effect at the death of the creditor does not automatically make
it mortis causa. Such statements must be construed with the rest of the Case doctrines
instrument. It is a settled rule that the title given to a deed of donation is not the
determinative factor which makes the donation inter vivos or mortis
Donations to be delivered after the donor s death causa.
A distinction must be made between the actual donation and the In case of doubt, the conveyance should be deemed donation inter
execution thereof vivos rather than mortis causa, in order to avoid uncertainty as to the
That the donation is to have effect during the lifetime of the donor does ownership of the property subject of the deed. (Puig v Penaflorida but
not mean that the delivery of the property must be made during his life. see book which cites the same case but says the opposite)
Article 729 speaks of donations in praesenti which take effect during the Donations inter vivos are immediately operative, even if the actual
lifetime of the donor but the property shall be delivered after the donor s execution may be deferred until the death of the donor. Mortis causa,
death. nothing is conveyed to the grantee and nothing is acquired by the latter,
Such are inter vivos although the subject matter is not delivered at until the death of the grantor-testator, the disposition being until then
once, or the delivery is to be made post mortem, which is a simple ambulatory and not final. (Puig)
matter of form and does not change the nature of the act. Acceptance clause is a mark that the donation is inter vivos.
The fruits shall belong to the donee from the time of acceptance unless Acceptance is a requirement for donations inter vivos. Donations moris
otherwise provided by the donor. causa are not required to be accepted by the donees during the donors
lifetime. (Gestopa v CA)
Instances A limitation on the right to sell during the donors lifetime implied that
ownership had passed to the donees and donation was already
effective during the donors lifetime. (Gestopa)

108
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
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o Reiterated in Alejandro v Geraldez: Condtion that donees
cannot sell during donors lifetime to a third person the donated
property implies immediate passage of ownership and,
therefore donation is inter vivos.
The reservation of lifetime usufruct indicates that the donor intended to
transfer the naked ownership over the properties, thus making it inter
vivos. (Gestopa)
Factors in determining whether a donation is one of mortis causa:
1. It conveys no title or ownership to the transferee before the death of
the transferor; or what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control of
the property while alive;
2. The before his death, the transfer should be revocable by the
transferor at will, ad nutum; but revocability may be provided for
indirectly by means of a reserved power in the donor to dispose of
the properties conveyed; and
3. That the transfer should be void if the transferor should survive the
transferee (Maglasang v Heirs of Corazon Cabatingan)
One of the decisive characteristics of a donation mortis causa is that the
transfer should be considered void if the donor should survive the donee
(Maglasang)
Donations mortis causa must be executed in accordance with the
requisites on solemnities of wills and testaments under Articles 805 and
806 of the Civil Code
Art. 730. The fixing of an event or the imposition of a suspensive
condition, which may take place beyond the natural expectation of life
of the donor, does not destroy the nature of the act as a donation inter
vivos, unless a contrary intention appears. (n)
Donation inter vivos subject to suspensive condition
This article contemplates a situtation where the donor intends the
donation to take effect during his lifetime but he imposes suspensive
condition which may or may not take place beyond his lifetime.
The fact that the event happens or the condition is fulfilled after the
donor s death does not change the nature of the act as a donation inter
vivos.
The effect of the fulfillment of the suspensvie condition is retroactive to
the making of the donation.
EXCEPTION: when the donor really intended that the donation should
take effect after his death. Thus, mortis causa.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Art. 731. When a person donates something, subject to the resolutory
condition of the donor's survival, there is a donation inter vivos. (n)
Donation inter vivos subject to a resolutory condition
In these cases, the ownership of the donated property is immediately
transferred to the donee upon perfection of the donation once
acceptance by the donee is made known to the donor.
A donation subject to a resolutory condition takes effect immediately but
shall become inefficacious upon the happening of the event which
constitutes the condition.
Even if the donation is subject to the resolutory condition of the donor s
survival, the donation is still inter vivos.
o I will donate this land to you, but if I survive World War III, I will
get it back. If I survive World War III, the donation is rescinded.
If I don t make it, then it continues in effect.
Art. 732. Donations which are to take effect inter vivos shall be
governed by the general provisions on contracts and obligations in all
that is not determined in this Title. (621)
Art. 733. Donations with an onerous cause shall be governed by the
rules on contracts and remuneratory donations by the provisions of
the present Title as regards that portion which exceeds the value of the
burden imposed. (622)
Rules governing onerous donations or onerous portions of donations
This article makes the rules of contracts directly applicable to onerous
donations and to remuneratory donations as to the onerous portion
thereof
Onerous donations are donations for a valuable consideration. They
include those purely onerous or those in which the consideration is
considered the equivalent of the property donated and the modal but
only as regards that portion thereof considered the equivalent of the
value of the burden imposed.
Remuneratory donations are true or simple donations because the
consideration is really the liberality of the donor since the services
rendered by the donee do not constitute a recoverable debt. However,
the special rules on revocation should not apply to the portion of the
donation equivalent to the equitable value of the services received by
the donor.
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The remuneratory donations referred to in Article 733 are the modal
donations or those which impose upon the donee a burden which is
less than the value of the thing given as regards that portion which
exceeds the value of the burden, it shall be governed by the provisions
on donations.
There is no burden imposed on remuneratory donations. If a burden is
imposed, it becomes onerous as regards the value of the burden.
Case doctrines
As onerous donations are governed by the rules on contracts, for there
to warrant a revocation of the donation, there must be a substantial
breach of the conditions in the deed. Mere casual breaches will not
warrant revocations. (CJ Yulo v RC Bishop)
Considering that the donee s acts did not detract from the very purpose
for which the donation was made but precisely to achieve such purpose
(of the donation), a lack of prior written consent of the donor (which was
a condition of the donation) would only constitute casual breach of the
deed. (CJ Yulo)
Art. 734. The donation is perfected from the moment the donor knows
of the acceptance by the donee. (623) 
 actual knowledge by the donor of the construction and existence of the
Perfection of donation
There is no donation without acceptance by the donee.
Acceptance is indispensable because nobody is obliged to receive a
benefit against his will.
Its absence makes the donation null and void.
The acceptance must be made during the lifetime of the donor and the
donee.
Perfection takes place, not from the time of acceptance by the donee,
but from the time it is made known, actual or constructively, to the
donor.
If the donation and acceptance are in the same public instrument,
signed by both and in the presence of witnesses, the donation is
deemed already perfected inasmuch as knowledge of the acceptance is
established by the instrument itself.
If acceptance was made in a separate instrument, there must be proof
that a formal notice of such acceptance was received by the donor, and
in case the donation involves immovable property, noted in both the
deed of donation and the separate instrument embodying the
acceptance. (See Art 749)
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
What if there is revocation?
If the donor revokes the donation before learning of the acceptance by
the donee, there is no donation.
But once it is perfected, it cannot be revoked without the consent of the
donee except:
1. Inofficiousness (Art 760)
2. Failure of the donee to comply with the charges imposed in the
donation (Art 764)
3. Ingratitude (Art 765)
Is registration necessary?
As between the parties to the donation and their assigns, it is not
needed for its validity and efficacy. (But it must be in a public document
for immovables!)
But for third parties to be bound, there must be registration.
Case doctrines
The purpose of the formal requirement for acceptance of a donation is
to ensure that such acceptance is duly communicated to the donor. The
school building pursuant to the condition of the donation fulfills the legal
requirement that the acceptance of the donation by the donee be
communicated to the donor. (Republic v Silim)
CHAPTER 2
PERSONS WHO MAY GIVE OR RECEIVE A DONATION
Art. 735. All persons who may contract and dispose of their property
may make a donation. (624)
Capacity of donor to contract and dispose of property
The donor must have both the capacity to contract and the capacity to
dispose of his property in order that he may make a donation.
Those who cannot give consent to a contract cannot be donors; and
donation made by one who does not have the free disposal of the thing
donated and to alienate it shall not be valid.
It is possible, however, for a person to have capacity to contract but not
the capacity to dispose of property.
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o Under the Family Code, every donation between spouses
during the marriage shall be void except moderate gifts on the
occasion of any family rejoicing. The prohibition applies also to
persons living together as husband and wife without a valid
marriage, or in illicit relations.
o Neither spouse may donate any community property nor
conjugal partnership property without the consent of the other,
except moderate donations for charity or on occasion of family
rejoicing or family distress.
Can corporations make donations?
Yes. But they can t give donations to aid any political party or candidate
or for purposes of partisan political activity.
Who are incapacitated to donate?
1. Minors
2. Insane or demented persons
3. Deaf-mutes who do not know how to write
4. Corporations (with regard to giving donations to aid any political party)
5. Guardians and trustees (with regard to property entrusted to them)
6. Spouses (to each other, except moderate gifts)
7. A spouse (to others without the consent of the other spouse, except
moderate donations)
Art. 736. Guardians and trustees cannot donate the property entrusted
to them. (n)
Donation by a guardian or trustee of ward s property
Generally, guardians and trustees cannot be donors of their ward s
properties for the simple reason that they are not the owners of the
same.
Exception: With respect to the trustee, donation is permitted
notwithstanding that the trustee receives nothing in exchange directly, if
the donation is onerous and is beneficial to the beneficiary.
Art. 737. The donor's capacity shall be determined as of the time of the
making of the donation. (n)
Capacity of donor at time of making the donation
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
The donation is perfected from the moment the donor knows of the
acceptance by the donee.
However, this article seems to imply that the donor s capacity must exist
at the time of making the donation and not from the time of knowledge
by the donor of the acceptance, that is, at the perfection of the act
A juridical absurdity arises in case the donor has no capacity to act at
the time the acceptance is conveyed to him. Since legally, the donor
cannot be said to have knowledge of the acceptance, there can be no
perfection of the donation which presupposes a meeting of the minds
between the donor and the donee who are both capacitated.
To avoid the apparent contradiction, the phrase making of the
donation should be construed to mean perfection of the donation
Hence, the donation would be valid, although the donor was insane at
the time he signs the deed of donation or informs the donee of the
donation but sane when he learns of the acceptance. The donor may
ask for annulment of the donation if he so desires
The subsequent incapacity of the donor does not affect the validity of
the donation. This is similar to the rule in succession.
Art. 738. Al those who are not specially disqualified by law therefor
may accept donations. (625)
Capacity of the donee
Generally, all persons, whether natural or artificial, may be donees.
A donee need not be sui juris, with complete legal capacity to bind
himself by contract.
As long as he is not specially disqualified by law , he may accept
donations.
So, donations may be made to:
1. Incapacitated persons such as minors and others who cannot
enter into a contract,
2. and also to conceived and unborn children.
Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty of adultery
or concubinage at the time of the donation;
(2) Those made between persons found guilty of the same
criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
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In the case referred to in No. 1, the action for declaration of
nullity may be brought by the spouse of the donor or donee; and the
guilt of the donor and donee may be proved by preponderance of
evidence in the same action. (n)
Donations void on moral grounds
This article declares null and void ab initio the donations referred to.
What are the different void donations?
1. Between persons who were guilty of adultery and concubinage at
the time of the donation
2. Between persons found guilty of the same criminal offense, in
consideration thereof
3. Made to a public officer or his wife, descendants and ascendants,
by reason of his office
4. Between spouses during the marriage, except moderate gifts which
they may give each other on the occasion of any family rejoicing
(Art 87, Family Code)
5. Donations of community property by a spouse without the consent
of the other, except moderate donations (Art 98, Family Code)
6. Donations of conjugal partnership property by a spouse without the
consent of the other, except moderate donations (Art 125, Family
Code)
7. Donations to those provided for in Article 740, in cross reference to
Art 1027 and 1032.
8. Donations accepted by agents without special authority to do so
(Art 745)
9. Donations of immovables which don t conform to the form
prescribed in Art 749
Donations between persons guilty of adultery and concubinage
The civil action for declaration of nullity may be brought after the
persons involved have been found guilty by final judgment in a criminal
proceeding of adultery or concubinage.
In view of the last paragraph, conviction for adultery or concubinage in a
criminal action is not essential.
The guilt of the donor and the donee may be proved by a mere
preponderance of evidence in a civil proceeding to nullify the donation,
alleging the adultery or concubinage as the cause of action for the
declaration of nullity.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
The donation is void, whether made before or after the illicit relations, if
given in consideration thereof, either as inducement or compensation.
What if the donation is given in contemplation of the termination of the
relationship, is the donation still void?
o Since the purpose is praiseworthy, good for all concerned, it should
be considered valid.
o This is particularly true when the woman (donee) was a victim of
deceit by the man.
o However, where the illicit relation was voluntary, and the donation
was demanded by the woman as a price of the termination of their
relationship, the donation is void.
What if the concubine did not know that the man she lived with was
actually married?
o Then she is not guilty of concubinage and not disqualified from the
donation.
Donations between persons found guilty of the same criminal offense
This rules presupposes prior criminal conviction in a criminal action;
hence proof of guilty by mere preponderance of evidence is not
sufficient.
The donation here is remuneratory or onerous. It is void whether made
before or after the commission of the crime if it is in consideration
thereof.
It is still void although the crime is not carried out because it is based on
an unlawful cause.
Donations made to a pubic officer, by reason of his office
Indirect bribery!
The guilt need not be established by proof beyond reasonable doubt in
a criminal proceeding for bribery.
A civil action to declare the donation void may be maintained by the
proper party in interest.
Donations made to persons other than those mentioned are valid,
unless, of course, they are intended for the public officer.
Art. 740. Incapacity to succeed by will shall be applicable to donations
inter vivos. (n)
Incapacity to succeed by will
This article expressly makes the provisions on incapacity to succeed by
will applicable to donations inter vivos
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Of course, they are also applicable to donations mortis causa which are
governed by the law on succession
According to Art 1027, the following are incapable of becoming donees:
1. The priest who heard the confession of the donor during his last
illness, or the minister of the gospel who extended spiritual aid to
him during the same period
2. The relatives of such priest or minister of the gospel within the
fourth degree, the church, order, chapter, community, organization,
or institution to which such priest or minister may belong
3. A guardian with respect to donations given by a ward in his favor
before the final accounts of the guardianship have been approved,
even if the donor should die after the approval thereof;
nevertheless, any provision made by the ward in favor of the
guardian when the latter is his ascendant, descendant, brother,
sister, or spouse, shall be valid
4. Any physician, surgeon, nurse, health officer or druggist who took
care of the donor during his last illness
5. Individuals, associations, and corporations not permitted by law to
inherit.
According to Art 1032, there are certain people who are deemed
incapable to inherit by reason of unworthiness. The donation made to a
person who falls under any of its provisions is valid if the donor had
knowledge of the act of unworthiness or having known it subsequently,
he should condone the same in writing. Even in the absence of pardon,
the donation is not subject to revocation because donations may be
revoked only for causes mentioned in Articles 760, 764 and 765. So,
who are these people?
1. Parents who have abandoned their children or induced their
daughters to lead a corrupt or immoral life, or attempted against
their virtue;
2. Any person who has been convicted of an attempt against the life
of the testator, his or her spouse, descendants, or ascendants; 
 burden.
3. Any person who has accused the testator of a crime for which the
law prescribes imprisonment for six years or more, if the accusation
has been found groundless; 
 In any case, when a formal or written acceptance is required by the
4. Any heir of full age who, having knowledge of the violent death of
the testator, should fail to report it to an officer of the law within a
month, unless the authorities have already taken action; this
prohibition shall not apply to cases wherein, according to law, there
is no obligation to make an accusation; 
 accepted by those persons who would legally represent them if they
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
5. Any person convicted of adultery or concubinage with the spouse of
the testator; 

6. Any person who by fraud, violence, intimidation, or undue influence
should cause the testator to make a will or to change one already
made;
7. Any person who by the same means prevents another from making
a will, or from revoking one already made, or who supplants,
conceals, or alters the latter's will; 

8. Any person who falsifies or forges a supposed will of the decedent.
Who are incapable of becoming donees?
1. Persons guilty of concubinage or adultery at the time of donation (but
only between them)
2. Persons found guilty of the same criminal offense, in consideration
thereof (but only between them)
3. Public officers, etc by reason of their office
4. Those mentioned in Art 1027
5. Those mentioned in Art 1032 (unworthy people)
Art. 741. Minors and others who cannot enter into a contract may
become donees but acceptance shall be done through their parents or
legal representatives. (626a)
Ok, tell me more about donations to minors and others without capacity to
contact
Donation requires acceptance by the donee.
If the donee is a minor or without capacity to enter into a contract, the
acceptance must be made by the parents or legal representative of the
donee.
This is especially true if the donation is onerous or imposes a charge or
It is clear that the donee may not validly accept a donation although it
imposes no burden.
donor, such acceptance must be made by the parents or legal
representative.
Art. 742. Donations made to conceived and unborn children may be
were already born. (627)
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Can you donate to conceived and unborn children?
Yes!
De Leon once again states the obvious by saying, A conceived and
unborn child cannot accept a donation because it is not yet a natural
person.
The acceptance must be made by those persons who would legally
represent them if they were already born.
Art. 743. Donations made to incapacitated persons shall be void,
though simulated under the guise of another contract or through a
person who is interposed. (628)
Who are the incapacitated persons referred to here?
They are those specially disqualified by law to become donees, such as
those in Articles 739 and 740.
Donations to such persons are void even if simulated under the guise of
another contract or through an intermediary.
Art. 744. Donations of the same thing to two or more different donees
shall be governed by the provisions concerning the sale of the same
thing to two or more different persons. (n)
Donations of the same thing to different donees
3
This article expressly makes applicable by analogy the rules on sales
of the same thing to two ore more different vendees.
However, this article has had its sure of criticism. See book.
Art. 745. The donee must accept the donation personally, or through an
authorized person with a special power for the purpose, or with a
general and sufficient power; otherwise, the donation shall be void.
(630)
3 who may not do so by themselves, shall be obliged to make the
Art. 1544. If the same thing should have been donated to different donees, the ownership
shall be transferred to the person who may have first taken possession thereof in good faith,
if it should be movable property. Should it be immovable property, the ownership shall
belong to the person acquiring it who in good faith first recorded it in the Registry of Property.
Should there be no inscription, the ownership shall pertain to the person who in good faith
was first in the possession; and, in the absence thereof, to the person who presents the
oldest title, provided there is good faith.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Who must accept the donation?
1. The donee personally, or
2. An authorized person or an agent, with a special power for the
purpose, or with a general and sufficient power
If not?
Then, the donation is void.
Does the parent of a minor need a special power for the purpose of
accepting a donation? Probably not, a parent is not considered an agent of a
minor. They are considered legal guardians. (But I m not sure.)
Art. 746. Acceptance must be made during the lifetime of the donor and
of the donee. (n)
When should acceptance be made for inter vivos?
A donation inter vivos takes effect during the lifetime of the donor and
the donee, and to take effect, it must be accepted by the donee.
Hence, acceptance by the donee (or his representative) must be made
during his lifetime and that of the donor.
Even if the donation is made during their lifetime, but the donor dies
before the acceptance is communicated to him, the donation is not
perfected.
How about for mortis causa?
Donations mortis causa are accepted only after the donor s death
because they partake of a will, and are governed by the rules on
succession.
If the acceptance was made before the donor s death, the donation
mortis causa although validly executed, cannot be given force and
effect. Such acceptance is void. (But is the donation void? Can there be
a subsequent acceptance after the death of the donor?)
Art. 747. Persons who accept donations in representation of others
notification and notation of which Article 749 speaks. (631)
When does this article apply?
1. When acceptance is made through the parents, legal representative, or
authorized agent of the donee;
2. The property donated is immovable, and
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3. The acceptance is not made in the same deed of donation but in a
separate public instrument.
The requirement of notification of the donor and notation in both
instruments that such notification has been made is necessary for the
validity and perfection of the donation.
Art. 748. The donation of a movable may be made orally or in writing.
An oral donation requires the simultaneous delivery of the
thing or of the document representing the right donated.
If the value of the personal property donated exceeds five
thousand pesos, the donation and the acceptance shall be made in
writing, otherwise, the donation shall be void. (632a)
What are the rules for the formalities for donations for movables?
When the value of property exceeds P5000, the donation and the
acceptance must always be made in writing; otherwise the donation is
void, even if there is simultaneous delivery of the thing.
o The donation and the acceptance need not be made in a public
instrument, nor is it necessary that the acceptance be made in the
same deed of donation.
When the value of property is P5000 or less, it may be made orally or in
writing.
o If made orally, there must be simultaneous delivery of the thing or
of the document representing the right donated, otherwise, the
donation is void. There must be acceptance which may be oral or
written. The receipt of the delivery by the donee constitutes implied
acceptance.
o If made in writing, the donation is valid although there is no
simultaneous delivery. Again, there must be acceptance which may
also be made orally or in writing.
In every case, the acceptance of the donee must be made known to the
donor for perfection of a donation to take place.
Art. 749. In order that the donation of an immovable may be valid, it
must be made in a public document, specifying therein the property
donated and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or
in a separate public document, but it shall not take effect unless it is
done during the lifetime of the donor.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
If the acceptance is made in a separate instrument, the donor
shall be notified thereof in an authentic form, and this step shall be
noted in both instruments. (633) 

Formalities for donation of immovables
This article does not apply to onerous donations since they are
governed by the laws of obligations and contracts
Donation of real property, which is a solemn contract, is void without the
formalities stated in Article 749
So, what are the rules?
When donation and acceptance are in the same instrument, the
requirements are:
1. The donation must be in a public document or instrument; and
2. The instrument must specify the property donated and the charges,
if any, which the donee must satisfy.
When the donation and acceptance are in separate instruments, the
requirements are:
1. The donation must be in a public document or instrument;
2. The instrument must specify the property donated and the charges,
if any, which the donee must satisfy
3. The acceptance by the donee must be in a public document
4. It must be done during the lifetime of the donor
5. The donor must be notified in authentic form of the acceptance of
the donation in a separate instrument; and
6. The fact that such notification has been made must be noted in
both instruments.
o But see the Rep v Silim case wherein the notification was not
noted in the instrument, but still, the SC ruled that the donation
was valid.
The donation of real property in a private instrument is null and void,
and the donee may not compel the donor to execute a public instrument
(1357) which applies only when the contract or donation is valid and
enforceable. The donation cannot be ratified.
Registration is not necessary for the donation to be considered valid
and effective.
From the time the public instrument of donation is simultaneously
executed and acknowledged by the donor and the donee, the latter
acquires the ownership of the donated property, since the execution of a
public instrument of conveyance is one of the recognized ways in which
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tradition of immovable property may be made, unless the contrary is
expressed or inferable from the terms of the deed.
Title to immovable property does not pass from the donor to the donee
by virtue of donation until and unless it has been accepted in public
instrument and the donor duly notified thereof.
Where the donation is on its face absolute and unconditional, it is error
to imply that the possession or usufruct is excluded from the donation or
the donation is subject to any charge or burden. The absence in the
deed of any reservation in favor of the donor is proof that no such
reservation was ever intended considering that under the law, a
donation of immovable by public instrument is required to specify the
value of the charges that the donee must assume.
Case doctrines
The best or primary evidence of a donation of real property is an
authentic copy of the deed of donation with all the formalities required
by Article 749. When a party wants to prove the contents of a
documents, the best evidence is the original writing itself.
Prior to the introduction of secondary evidence, a party must establish
the existence and due execution of the instrument, after which he must
prove that the document was lost or destroyed. (DECS v Del Rosario)
Where the deed of donation fails to show the acceptance, or where the
formal notice of the acceptance, made in a separate instrument is not
given to the donor or else not noted in the deed of donation and in the
separate acceptance, the donation is null and void. (Sumipat v Banga)
CHAPTER 3
EFFECT OF DONATIONS AND LIMITATIONS THEREON
Art. 750. The donations may comprehend all the present property of
the donor, or part thereof, provided he reserves, in full ownership or in
usufruct, sufficient means for the support of himself, and of all
relatives who, at the time of the acceptance of the donation, are by law
entitled to be supported by the donor. Without such reservation, the
donation shall be reduced in petition of any person affected. (634a)
Reservation of sufficient means for support of donor and relatives
A donor may donate all his present property or part thereof provided he
reserves sufficient property in ownership or in usufruct for the support of
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
himself and of all relatives who are entitled to be supported by him at
the time of the perfection of the donation
Present property means property which the donor can rightfully dispose
of at the time of the donation.
o The share in an existing inheritance is present property
although the heir has not yet entered into the possession of the
same.
The donation of present property without the required reservation is not
null and void in its entirety; it is only subject to reduction by the court on
petition of the party prejudiced by the donation the donor himself, any
dependent relative or creditor of the donor.
The limitation applies to simple, remunerative and modal donations but
not to onerous ones which are governed by the law on obligations and
contracts, nor to donations mortis causa for they take effect only after
the donor s death.
Donations propter nuptias cannot exceed more than one-fifth of the
present property of the future spouses if in their marriage settlements
executed before the marriage, they agree upon a regime other than the
4
absolute community of property.
Case doctrines
When the dnor stated that she would continue to retain the possession,
cultivation, harvesting and all other rights and atrtributes of ownership
she meant only dominium utile, not the full ownership. The words rights
and attributes of ownership should be construed ejusdem generis with
the preceding rights of possession, cultivation and harvesting
expressly enumerated in the deed. (Cuevas v Cuevas)
Art. 751. Donations cannot comprehend future property.
4 Art. 82. Donations by reason of marriage are those which are made before its celebration, in
consideration of the same, and in favor of one or both of the future spouses. (126)
Art. 83. These donations are governed by the rules on ordinary donations established in Title III of
Book III of the Civil Code, insofar as they are not modified by the following articles. (127a)
Art. 84. If the future spouses agree upon a regime other than the absolute community of property,
they cannot donate to each other in their marriage settlements more than one-fifth of their present
property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary succession and
the formalities of wills. (130a)
Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In
case of foreclosure of the encumbrance and the property is sold for less than the total amount of
the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for
more than the total amount of said obligation, the donee shall be entitled to the excess. (131a)
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By future property is understood anything which the donor
cannot dispose of at the time of the donation. (635)
Donation of future property PROHIBITED!
Future property is anything which the donor cannot dispose of at the
time of the donation. In other words, it is property that belongs to others
at the time the donation is made and it is immaterial that it may
subsequently belong to the donor.
Nobody can dispose of that which does not belong to him. Nemo emo.
Future inheritance cannot be donated because it is future property but
upon the death of his predecessor, the inheritance ceases to be future
and consequently, may be the object of donation even if the properties
constituting the inheritance have not yet been delivered.
Property, the acquisition of which by the donor depends upon the
fulfillment of a suspensive condition, may be donated because, although
the property may be as to him still future property , the effects of the
fulfillment of the condition shall retroact to the day of the constitution of
the contract.
Another reason is that the donor by desisting to acquire a future
property donated would be revoking the donation contrary to the rule
that donations inter vivos are irrevocable save for causes provided by
law.
Case doctrine
A donor cannot lawfully convey what is not his property. Where a parcel
of land was the registered property of another, and the donee failed to
show how her donor acquired it from the registered owner, it is held that
the donor has no right, title or interest in said land which he could
lawfully convey.
Art. 752. The provisions of Article 750 notwithstanding, no person may
give or receive, by way of donation, more than he may give or receive
by will.
The donation shall be inofficious in all that it may exceed this
limitation. (636)
Amount of donation limited to what donor may give by will
Article 752 makes applicable to donations the limitation on testamentary
disposition with respect to the amount thereof.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
The limitation is really on the right of the donor to give rather than on the
right of the donee to receive.
A person may not donate more than he can give by will and a person
may not receive by way of donation more than what the donor is
allowed by law to give by will; otherwise, the donation shall be
inofficious and shall be reduced with regard to the excess.
The limitation applies where the donor has forced or compulsory heirs.
The purpose is not to diminish the legitimes to which they are entitled.
o But the limitation is enforceable only after the death of the
donor because it is only then when it can be determined
whether or not the donation is inofficious; by contrasting its
value with the net value of the estate of the donor deceased.
o The donation is valid during the lifetime of the donor.
Art. 753. When a donation is made to several persons jointly, it is
understood to be in equal shares, and there shall be no right of
accretion among them, unless the donor has otherwise provided.
The preceding paragraph shall not be applicable to donations
made to the husband and wife jointly, between whom there shall be a
right of accretion, if the contrary has not been provided by the donor.
(637)
Donation to several donees jointly
The rules are as follows:
1. The donation is understood to be in equal shares, unless the donor
has provided otherwise.
2. There shall be no right of accretion among the donees, unless the
donor has otherwise provided.
3. If the donees are husband and wife, there shall be aright of
accretion, if the contrary has not been provided by the donor.
If there is no accretion among the donees, one cannot accept
independently for his co-donee who is not present.
Art. 754. The donee is subrogated to all the rights and actions which in
case of eviction would pertain to the donor. The latter, on the other
hand, is not obliged to warrant the things donated, save when the
donation is onerous, in which case the donor shall be liable for
eviction to the concurrence of the burden.
The donor shall also be liable for eviction or hidden defects in
case of bad faith on his part. (638a)
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Rights and actions
Here are the rules:
1. The donee is subrogated to all the rights and actions which in case
of eviction would pertain to the donor
2. If the donation is simple or remunerative, the donor is not liable for
eviction or hidden defects, becaue the donation is gratuitous;
3. Even if the donation is simple or remunerative, the donor is liable
for eviction or hidden defects in case of bad faith on his part
(knowingly donating a chicken with avian flu) or warranty is
expressly stipulated; and
4. If the donation is onerous (modal donation, according to de Leon),
the donor is liable on his warranty but only to the extent of the
burden.
Art. 755. The right to dispose of some of the things donated, or of
some amount which shall be a charge thereon, may be reserved by the
donor; but if he should die without having made use of this right, the
property or amount reserved shall belong to the donee. (639)
Donation with right of donor to dispose of part of object donated, reserved.
The donor may reserve the right to dispose of some of the things or part
of the thing donated or some amount or income thereof.
The donation is actually conditional, and the condition is fulfilled if the
donor dies without exercising the right he reserved, either by acts inter
vivos or mortis causa.
Ron donates to Harry a house and an apartment with the provision that Ron
could sell the house and give the rents (or a portion) of the apartment for 5
years to Frank. The donation of the house with a reservation of the right to
dispose should be considered mortis causa, and therefore, must follow the
formalities prescribed for making a will. The donation of the apartment is
inter vivos.
Art. 756. The ownership of property may also be donated to one person
and the usufruct to another or others, provided all the donees are
living at the time of the donation. (640a)
Naked ownership and usufruct separately donated
The donor may donate separately the naked ownership (dominium
directum) to one person and the usufruct (dominium utile) to another.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
To be valid, the donee must be living at the time of the donation , which
is to be understood to refer to the time of the perfection of the donation.
A donation to a child who was not yet conceived at the time it was made
is void.
If the property donated is immovable, the formalities for donations of
real property must be complied with.
Art. 757. Reversion may be validly established in favor of only the
donor for any case and circumstances, but not in favor of other
persons unless they are all living at the time of the donation.
Any reversion stipulated by the donor in favor of a third
person in violation of what is provided in the preceding paragraph
shall be void, but shall not nullify the donation. (614a)
Donation with provision for reversion
The donor may provide for reversion, whereby the property shall go
back to the donor or some other person.
It may be validly established for any case and circumstances.
If the revision is in favor of other persons, they must be living at the time
of the donation.
Thus, a reversion in favor of an unconceived child is void, but such
nullity shall not invalidate the donation. The reversion which is merely
an accessory clause is simply disregarded.
Art. 758. When the donation imposes upon the donee the obligation to
pay the debts of the donor, if the clause does not contain any
declaration to the contrary, the former is understood to be liable to pay
only the debts which appear to have been previously contracted. In no
case shall the donee be responsible for the debts exceeding the value
of the property donated, unless a contrary intention clearly appears.
(642a)
Art. 759. There being no stipulation regarding the payment of debts,
the donee shall be responsible therefor only when the donation has
been made in fraud of creditors.
The donation is always presumed to be in fraud of creditors,
when at the time thereof the donor did not reserve sufficient property
to pay his debts prior to the donation. (643)
Liability of donee to pay debts of donor
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Here are the rules.
1. Where donor imposes obligation upon the donee:
a. The donee is liable to pay only debts previously
contracted;
b. He is liable for subsequent debts only when there is a
stipulation to that effect; and
c. He is not liable for debts in excess of the value of the
donation received, unless the contrary is intended.
2. Where there is no stipulation regarding the payment of debts
a. The donee is generally not liable to pay the donor s debts;
b. He is responsible therefore only if the donation has been
made in fraud of creditors (which is always presumed
when at the time of the donation the donor has not left
sufficient assets to pay his debts)
c. He is not liable beyond the value of the donation received.
Ordinarily, the donee should not be made liable to pay the donor s debt
beyond the value of the thing donated.
Donation in fraud of creditors
Presumed in fraud when at the time thereof the donor did not reserve
sufficient property to pay his debts prior to the donation.
The creditors of the donor at the time of the donation may exercise the
subsidiary right of rescission when they cannot in any manner collect
the claims due them (accion pauliana) unless the property donated has
passed into the hands of a third person in good faith for value. In the
latter case, the donee shall answer for damages if he acted in bad faith.
Case doctrine
Requisites for an accion pauliana:
1. Credit prior to alienation, even if demandable later
2. Debtor has made a subsequent contract conveying a patrimonial
rd
benefit to a 3 person
3. The creditor has no legal remedy to satisfy his claim
4. The act being impugned is fraudulent
5. The third person who received the property conveyed, if is by
onerous title, has been an accomplice in the fraud.
But remember that accion pauliana is subsidiary.
CHAPTER 4
REVOCATION AND REDUCTION OF DONATIONS
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Art. 760. Every donation inter vivos, made by a person having no
children or descendants, legitimate or legitimated by subsequent
marriage, or illegitimate, may be revoked or reduced as provided in the
next article, by the happening of any of these events:
(1) If the donor, after the donation, should have legitimate or
legitimated or illegitimate children, even though they be posthumous;
(2) If the child of the donor, whom the latter believed to be
dead when he made the donation, should turn out to be living; 

(3) If the donor subsequently adopt a minor child. (644a)
Grounds for revocation and reduction of donation
1. Revocation affects the whole donation and is allowed during the lifetime
of the donor. The grounds are:
a. Birth, appearance, or adoption of a child (760);
b. Non-fulfillment of a resolutory condition imposed by the donor
(764); and
c. Ingratitude of the donee. (765)
2. Reduction generally affects a portion only of the donation (unless the
donee has no free portion left) and is allowed during the lifetime of the
donor or after his death. The grounds are:
a. Failure of the donor to reserve sufficient means for support of
himself or dependent relatives; (750)
b. Failure of the donor to reserve sufficient property to pay off his
existing debts (759);
c. Inofficiousness, that is, the donation exceeds that which the
donor can give by will; (752, 771) and
d. Birth, appearance, or adoption of a child. (760)
A donation that has been duly perfected in accordance with law should
stand until after its revocation should have been asked and granted in
the proper proceeding.
Birth, appearance, or adoption of a child
This article applies to all donations inter vivos. It does not apply:
a. to donations mortis causa for they are revocable at will by the
donor (testator);
b. to onerous donations for they are really contracts; and
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PROPERTY NOTES

c. to donations propter nuptias for they are revocable only for the
causes provided in the Family Code see Art 86 of the Fam
5
Code .
It is applicable when the donor, at the time he made the donation, did
not have any child or descendant or erroneously thought so; otherwise,
Article 771 in relation to Article 752 shall apply.
Every donation is subject to revocation or reduction by the happening of
any of the events mentioned which are in the nature of implied
resolutory conditions.
Birth of a child
Here, the donor had no child whether legitimate, legitimated, or
illegitimate at the time of the donation, and thereafter, a child was born
even if posthumous.
What if the child was already conceived but not yet born, what provision
should apply, Article 760 or 771?
o It depends.
o If the donor was aware of such conception, Article 771. Hence,
he cannot revoke the donation upon the birth of the child.
o But, if he did not know of such conception when he made the
donation, the situation is similar to the appearance of an
absent child thought by the donor to be dead. For purposes of
the law, he had no child.
The rule is that a conceived child is considered born
for all purposes favorable to it. Since to consider the
child as already born would make the donation
irrevocable and would be unfavorable to it, the
subsequent birth of the child should revoke or reduce
the donation.
Appearance of a child
5
Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in
the marriage settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian, as required by
law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse; 
 still part of the estate had not the donation been made.
(5) If it is with a resolutory condition and the condition is complied with; 

(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil
Code on donations in general. (132a)
In this case, the donor had only one child whom he believed to have
already died at the time of the donation.
The note says child , so the subsequent appearance of a descendant,
like a grandkid, would not revoke the donation
o But the donation may be reduced under Article 771 as
inofficious if it impairs the legitime of the descendant.
Adoption of a child
The subsequent adoption of a minor child is also a ground for the
revocation or reduction of a donation.
It s an exception to the rule that a donation inter vivos shall be
irrevocable by the donor.
Again, the law says minor child ; hence the adoption of a person of
majority age although it is allowed in certain cases is not a ground under
No. 3.
Case doctrine
Revocation upon birth of a child and return of property to donor are not
self-operative or self-executory. There is a need for judicial action.
(Oracion v Juanillo)
Art. 761. In the cases referred to in the preceding article, the donation
shall be revoked or reduced insofar as it exceeds the portion that may
be freely disposed of by will, taking into account the whole estate of
the donor at the time of the birth, appearance or adoption of a child. (n)
Extent and basis of revocation or reduction
Birth, appearance, or adoption of a child.
A person may not give by way of donation more than he may give by
will.
The amount subject to revocation or reduction is, therefore, the excess
over the portion that may be freely disposed of by will.
The basis of revocation or reduction is the value of the whole estate of
the donor at the time of the birth, appearance, or adoption of a child,
and not at the time of the death of the donor as in the case of inofficious
donations under Article 771.
o To the value of the estate shall be added the value of the
donation at the time it was made because it would have been
The burden of proof is on the plaintiff-donor who must allege and
establish the requirements prescribed by law.

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
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PROPERTY NOTES
In the case of inofficious donations.
What is sought to be protected by Article 760 is only the prospective or
presumptive legitime of the child because that is the only portion which
cannot be disposed of.
If the donation does not exceed the free portion at the time of the birth,
appearance, or adoption, there will be no revocation or reduction but it
may still be reduced under Article 771 if it cannot be covered by the free
portion computed as of the time of the donor s death.
Let us suppose Ron who was then childless, donated a property worth P50
to Erin, a close friend. Subsequently, a child was born to Ron whose estate
at the time was P30. His total estate then including the value of the property
donated was P80.
Since the legitime of a legitimate child is ½ of the estate or P40, and
therefore, the free portion is also P40, the donation must be reduced by P10.
But if the value of the estate was P70, the donation is not revoked or
reduced because it does not exceed the free portion of P60 [(P70 + 50)/2].
However, should the estate of Ron be less than P50, excluding the P50
donation, at the time of his death (for example, P40), it shall be subject to
reduction to the extent that it is inofficious (i.e. P50 P45 [(P50+P40/2) =
P50) under article 771.
Case doctrines
Donor has the burden to allege and establish the requirements
prescribed by law for which the annulment or reduction of the donation
can be based. (Cruz v CA)
Art. 762. Upon the revocation or reduction of the donation by the birth,
appearance or adoption of a child, the property affected shall be
returned or its value if the donee has sold the same.
If the property is mortgaged, the donor may redeem the
mortgage, by paying the amount guaranteed, with a right to recover the
same from the donee.
When the property cannot be returned, it shall be estimated at
what it was worth at the time of the donation. (645a)
Obligation of donee upon revocation or reduction
In case of revocation or reduction under Article 760, the obligation of the
donee depends upon the situation of the property donated.
o If the property affected is still in his possession, he must return
the same.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
o If he has sold the property, he must give its value.
o If the property has been mortgaged by him, and the donor
redeemed the mortgage, he must reimburse the donor.
o If the property cannot be returned, as when it ahs been lost or
destroyed, he must return its value at the time of the perfection
of the donation.
It is presumed that the price at which the property is sold is its value.
o If the price is less than its actual value, the donee is not liable
for the difference absent proof of bad faith.
o When the property cannot be returned, its value shall be
determined not as of the time of the loss but as of the time of
the donation.
Art. 763. The action for revocation or reduction on the grounds set
forth in article 760 shall prescribe after four years from the birth of the
first child, or from his legitimation, recognition or adoption, or from the
judicial declaration of filiation, or from the time information was
received regarding the existence of the child believed dead.
This action cannot be renounced, and is transmitted, upon the
death of the donor, to his legitimate and illegitimate children and
descendants. (646a)
Prescription of action for revocation or reduction
The donation is revoked ipso jure by operation of law, by the happening
of any of the events mentioned in Article 760.
o Hence, it is not really essential that an action be brought to
revoke the donation.
o BUT, the revocation is not self-operative or self-executory.
If the donee should refuse to comply with his obligation under Article
762, resort to judicial action is necessary under Article 763. But since it
is the law itself that declares the revocation, the action is strictly not an
action to revoke but one to have the court expressly declare the
revocation which has already taken place by operation of law.
The period within which to bring the action is 4 years. The time to start
counting depends upon the cause:
o Birth of the first child;
o From time of legitimation, recognition or adoption; or
o From judicial declaration of filiation
o From the time information was received regarding the
existence of the child believed dead.
Not from the actual appearance of the absent child.
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If the donor dies within the period, the action is transmitted to his
legitimate and illegitimate children and descendants (not the spouse or
ascendants of the donor).
In case more than one cause or ground for revocation or reduction
concur, the period of prescription must run from the earliest cause.
Reduction of a donation upon the allegation of impairment of legitime is
not controlled by a particular prescriptive period for which reason the
period shall be governed under the ordinary rules of prescription. Under
Article 1144, the action must be brought within 10 years from the time
the right of action accrues, which is the death of the donor.
The action cannot be waived. (Compare to the next article!)
Art. 764. The donation shall be revoked at the instance of the donor,
when the donee fails to comply with any of the conditions which the
former imposed upon the latter.
In this case, the property donated shall be returned to the
donor, the alienations made by the donee and the mortgages imposed
thereon by him being void, with the limitations established, with regard
to third persons, by the Mortgage Law and the Land Registration Laws.
This action shall prescribe after four years from the
noncompliance with the condition, may be transmitted to the heirs of
the donor, and may be exercised against the donee's heirs. (647a)
Failure to comply with conditions
A donation may be revoked in case of failure of the donee to comply
with any of the conditions imposed by the donor upon him.
The word conditions actually refers to obligations, charges, or burdens
imposed by the donor; it may also refer to a resolutory condition. Hence,
what is contemplated are onerous or modal donations.
Of course, it implies that there is an existing donation.
The condition must be fulfilled within the period fixed by the donor.
o No period? The court shall determine such period as may have
been contemplated by the donor.
In case the donee fails to comply, the property donated reverts to the
donor, along with the fruits of the property which the donee may have
received after having failed to fulfill the condition.
If the property has been alienated or mortgaged, the alienation or
mortgage shall be void SUBJECT to the rights of innocent third persons
under registration laws who may have taken the property donated
without notice of the condition imposed. (Public policy baby!)
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
In case of non-fulfillment by the donee of any of the conditions imposed
by the donor, the donation shall be revoked at the instance of the donor.
o But, the donor may instead file for an action of specific
performance to compel the donee to comply with the
conditions.
The action must be brought within 4 years from the non-compliance with
the condition it can only be brought by the donor or his heirs against
the donee s heirs (compare to Articles 769 and 770).
The death of the donor or the donee does not bar the action to revoke
for failure of the donee to comply with the conditions, provided the
prescriptive period has not yet expired.
Unlike the action for revocation or reduction under Article 763, the
action may be waived because the condition is purely contractual in
nature.
Is court action necessary?
In any case, a court action is necessary if the donee refuses to return
the property or to comply with the conditions.
The deed of donation, however, may provide that violation of any of its
conditions shall cause the automatic rescission of the contract. In such
case, upon the violation, the donation is automatically revoked, without
need of a judicial declaration.
o Except where the donee denies the donor s right to rescind, in
which case, judicial intervention is necessary to determine
whether or not the rescission is proper.
In the absence of an agreement in the donation providing of an
automatic rescission, a judicial declaration revoking said donation will
be necessary.
Case doctrines
When land is donated on several express conditions, acceptance by the
donee will be understood to include all of the conditions not umistakably
rejected. (Barreto v Manila)
When the donee has entered into possession of the property, effect will
be given to the donation according to the terms of the offer and
acceptance, although the formal deed has not been executed. (Barreto)
If there is no fulfillment with the resolutory condition, the donation may
now be revoked and all rights which the donee may have acquired
under it shall be deemed lost and extinguished. (Central Phil University
v CA)
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Article 764 does not apply to onerous donations because onerous
donations are governed by the rules of Contracts. Hence, the
prescription period is 10 years, not 4 years. (De Luna v Abrigo)
o While courts are given the power to fix the duration when the
condition is to be fulfilled when none is given, if the facts show
that a reasonable period has already been allowed the donee
to avail of the opportunity to comply with the condition, then the
courts will no longer give the donee a period. (Central Phil Uni)
o The legal possibility of bringing the action begins with the
expiration of a reasonable opportunity of the donee to fulfill
what has been charged upon it by the donor. (Sec of Education
v Heirs of Dulay)
Nothing in law prohibits parties from entering into an agreement that
violation of the terms of the contract would cause cancellation thereof
even without court intervention.
o In cases like these, judicial intervention is necessary not for
purposes of obtaining a judicial declaration rescinding a
contract already deemed rescinded but in order to determine
whether or not the rescission was proper. (De Luna)
When the deed of donation expressly provides for automatic rescission
and reversion of the property donated, the rules on contract and the
general rules on prescription should apply, not 764. (Roman Catholic
Archbishop of Manila v CA)
o A donor cannot revoke the donation on the grounds for non-
compliance of an impossible condition. (Archbishop of Manila v
CA)
A declaration of petitoner s absolute ownership appears legally possible
only when the deed of donation is contextually declared peremptorily
revoked. (Dolar v Barangay Lublub)
rd
The act of selling property to a 3 party cannot be considered as a valid
act of revocation of the deed of donation for the reason that a formal
case to revoke the donation must be filed which speaks of an action that
has a prescriptive period of 4 years from non-compliance with the
condition. In this case, there was no provision of automatic rescission,
thus placing the case within the ambit of Article 764. (Austria-Magat v
CA)
When the donation is onerous and does not fix a period to comply with
the condition, the courts should fix a period to uphold the greatest
reciprocity of rights. If it is gratuitous, then they should not, to uphold the
least reciprocity of rights and interests.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
It s important to determine whether or not the donation is onerous or not
so that we know what law to apply.
Art. 765. The donation may also be revoked at the instance of the
donor, by reason of ingratitude in the following cases:
(1) If the donee should commit some offense against the
person, the honor or the 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 the act has been committed against the donee
himself, his wife or children under his authority;

 (3) If he unduly refuses him support when the donee is
legally or morally bound to give support to the donor. (648a)
Revocation by reason of ingratitude of the donee
Article 765 does not apply to donations mortis causa and onerous
donations.
A donation propter nuptias may be revoked by the donor when the
donee has committed an act of ingratitude as specified in Article 765.
The enumeration is exclusive and cannot be enlarged.
The act of ingratitude must have been committed by the donee himself
because the duty of gratitude is personal. An act imputable to the
husband or wife or the hot mistress of the donee is not a ground for
revocation.
Offense against the donor, etc
Criminal conviction is not needed. It is sufficient that the offense be
proved by mere preponderance of evidence in the action for revocation.
If the offense is committed against a child who is no longer under
parental authority, the donation cannot be revoked.
Imputation to donor of any criminal offense, etc
It is immaterial that the donee can prove his accusation or substantiate
his testimony against the donor.
o The exception is when the crime has been committed against
the donee himself, his wife or children under his parental
authority.
o The act involving moral turpitude may not amount to a crime.
Refusal to support the donor
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PROPERTY NOTES
There are two requisites:
1. The refusal to support the donor must be undue, that is,
without just reason; and
2. The donee must be legally or morally bound to support the
donor.
Note that ingratitude extends beyond failure to do a legal duty to support
and includes a moral duty to help. (donee is a friend who is penniless
and asks for help, and the donor shuns her away like a scorned lover.)
Case doctrine
All crimes which offend the donor show ingratitude and are causes for
revocation. Any crime under the Revised Penal Code is one involving
moral turpitude. (Spouses Romulo v CA)
Art. 766. Although the donation is revoked on account of ingratitude,
nevertheless, the alienations and mortgages effected before the
notation of the complaint for revocation in the Registry of Property
shall subsist.
Later ones shall be void. (649)
Art. 767. In the case referred to in the first paragraph of the preceding
article, the donor shall have a right to demand from the donee the
value of property alienated which he cannot recover from third
persons, or the sum for which the same has been mortgaged.
The value of said property shall be fixed as of the time of the
donation. (650)
Effect of revocation on prior alienations and mortgages
If by non-compliance
In case of revocation of a donation by non-compliance by the donee
with any of the conditions imposed, alienations and mortgages made by
the donee are void, subject only to the rights of innocent third persons.
The donor can recover from the donee:
o Only the value of the property donated at the time of the perfection
of the donation, OR
o The sum for which it was mortgaged.
Recovery cannot be had against the third person unless he acted in bad
faith as when had actual knowledge of the cause for revocation or the filing
of the action.
If by reason of ingratitude
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
If the revocation is by reason of ingratitude, the alienations and
mortgages made by the donee before the complaint for revocation is
annotated in the Registry of Property shall subsist or are valid. Later
alienations and mortgages shall be void.
The donor can recover the property from the transferee or
mortgagee.
The donation of land by Ron to Erin was made on July 10. Erin sold the land
to Tara on July 20. The act of ingratitude was done on July 30. The
complaint for revocation was annotated on August 10. Thus, the sale to Tara
is valid, and the remedy of Ron is to recover from Eric the value of the land
at the time of the donation.
If the sale was made after August 10, the sale is void and Ron can recover
the land from Tara.
If the act of ingratitude was committed on July 20, the sale on July 30 and
the complaint which was filed on July 25 and was annotated on July 31, but
at the time of the sale Tara was aware of the act of ingratitude committed by
Erin, or the pending action by Ron, the sale should not be considered valid
because Tara acted in bad faith, and so Ron can recover the land from her.
Art. 768. When the donation is revoked for any of the causes stated in
Article 760, or by reason of ingratitude, or when it is reduced because
it is inofficious, the donee shall not return the fruits except from the
filing of the complaint.
If the revocation is based upon noncompliance with any of the
conditions imposed in the donation, the donee shall return not only the
property but also the fruits thereof which he may have received after
having failed to fulfill the condition. (651)
Return by donee of the fruits of property donated
The rules depend upon the cause of revocation or reduction
o If the cause is:
the birth, appearance or adoption of a child, or
ingratitude, or
inofficiousness of the donation (because the donor did not
reserve sufficient means for support), or
he donated more than he could give by will, then
only the fruits accruing from the filing of the complaint
need be returned.
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PROPERTY NOTES
It can be implied that the donation remains valid up to the
time of the filing of the complaint.
If the cause is the non-fulfillment of any of the conditions imposed in the
donation, the fruits must be returned from the time of the breach of the
condition. The donation shall also return the property donated.
In case of inofficious donation which exceeds the free disposal by will,
the donation takes effect during the lifetime of the donor, the donee
appropriates the fruits, and the reduction may be asked only after the
donor s death.
Art. 769. The action granted to the donor by reason of ingratitude
cannot be renounced in advance. This action prescribes within one
year, to be counted from the time the donor had knowledge of the fact
and it was possible for him to bring the action. (652)
Renunciation and prescriptive period of action by reason of ingratitude
The action granted to the donor for revocation by reason of ingratitude,
like the action based on the birth, appearance, or adoption of a child
cannot be renounced in advance.
What the law prohibits is waiver, prior to the commission of the act of
ingratitude.
A past ingratitude can be the subject of a valid renunciation because the
renunciation can be considered as an act of magnanimity on the part of
the donor.
The action prescribes
1. Within one year from the time the donor had knowledge of the
act of ingratitude AND
2. It was possible for him to bring the action.
To bar the action, the donee must show proof that the one-year period
has expired and it was possible for the donor to institute the said action
within the same period.
Art. 770. This action shall not be transmitted to the heirs of the donor,
if the latter did not institute the same, although he could have done so,
and even if he should die before the expiration of one year.
Neither can this action be brought against the heir of the
donee, unless upon the latter's death the complaint has been filed.
(653)
Transmission of action for revocation
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
General rule: The action to revoke a donation by reason of ingratitude is
purely personal to the donor and cannot, as a rule, be transmitted to the
heirs.
This is unlike the action for revocation based on the birth, appearance
or adoption of a child and the action based on non-compliance with the
condition of a donation.
However, the particular circumstances of the case should be taken into
account to determine whether it was possible to bring the action. Hence,
the following exceptions wherein the heirs of the donors can ask for the
revocation:
1. If the donee killed the donor, or
2. If the donor dies without having known of the act of ingratitude,
or
3. If a criminal case against the donee was instituted by the
donor, but the donor dies before he could bring the civil action
for revocation; or
4. If the action for revocation has already been filed by the donor
before his death.
Action against heirs of donee
The heirs of the donee are not held responsible for the acts of their
predecessor-donee. The act of ingratitude. (The sins of the father are
not the sins of the son… although, there are some instances where we
repeat the mistakes of our parents. General rule? Learn.)
But if the donor has already filed the complaint before the donee s
death, the suit may be continued against his heirs.
Art. 771. Donations which in accordance with the provisions of Article
752, are inofficious, bearing in mind the estimated net value of the
donor's property at the time of his death, shall be reduced with regard
to the excess; but this reduction shall not prevent the donations from
taking effect during the life of the donor, nor shall it bar the donee from
appropriating the fruits.
For the reduction of donations the provisions of this Chapter
and of Articles 911 and 912 of this Code shall govern. (654)
Reduction of inofficious donations
Donations which are inofficious because they are more than what the
donor can give by will shall be reduced with regard to the excess upon
the death of the donor, after determining the net value of the estate.
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PROPERTY NOTES

Thus, it follows that the donation is effective during the lifetime of the
donor and so, the donee, as owner of the property donated also
becomes owner of the fruits, although the donation should appear
inofficious.
For donations propter nuptias, they may be reduced for being
inofficious. Being liberalities, they remain subject to reduction for
inofficiousness upon the donor s death, if they should infringe the
legitime of a forced heir.
The action to reduce the inofficious donation must be brought within 5
years from the time of the donor s death.
For reduction of donations, the following articles, quoted below shall
govern:
The donees, devisees and legatees, who are not entitled to the
legitime and the creditors of the deceased can neither ask for the
reduction nor avail themselves thereof. (655a)
Persons entitled to ask for reduction who are they?
For the reduction of inofficious donations,
1. those who at the time of the donor s death have a right to the
legitime, and
2. their heirs, and
3. succesors in interest.
The donor is not included, patay na siya eh. The inofficiousness can
only be determined after his death.

Art. 911. After the legitime has been determined in accordance with the Who may not ask for reduction?
three preceding articles, the reduction shall be made as follows: 1. The donees, or
(1) Donations shall be respected as long as the legitime can be covered, 2. The devisees, or
reducing or annulling, if necessary, the devises or legacies made in the will; 3. The legatees, who are not entitled to the legitime.
(2) The reduction of the devises or legacies shall be pro rata, without any 4. Creditors of the deceased. (The remedy of creditors is to file a claim
distinction whatever. 
 If the testator has directed that a certain devise or against the estate of the deceased, but not against the owners of the
legacy be paid in preference to others, it shall not suffer any reduction until donated property.)
the latter have been applied in full to the payment of the legitime. 

(3) If the devise or legacy consists of a usufruct or life annuity, whose value Renunciation of right to ask for reduction can it be done?
may be considered greater than that of the disposable portion, the The right to ask for the renunciation of inofficious donations cannot be
compulsory heirs may choose between complying with the testamentary renounced during the lifetime of the donor, ether by express declaration
provision and delivering to the devisee or legatee the part of the inheritance or by consenting to the donation.
of which the testator could freely dispose. (820a)
Art. 912. If the devise subject to reduction should consist of real property, 773. If, there being two or more donations, the disposable portion is
which cannot be conveniently divided, it shall go to the devisee if the not sufficient to cover all of them, those of the more recent date shall
reduction does not absorb one-half of its value; and in a contrary case, to the be suppressed or reduced with regard to the excess. (656) 

compulsory heirs; but the former and the latter shall reimburse each other in
cash for what respectively belongs to them. Reduction where there are two or more donations
The devisee who is entitled to a legitime may retain the entire property, The subsequent donations shall first be reduced and only if they are not
provided its value does not exceed that of the disposable portion and of the sufficient to cover the disposable portion should the earlier ones be
share pertaining to him as legitime. (821) reduced also with regard to the excess.
If the two donations were perfected at the same time, the reduction
Art. 772. Only those who at the time of the donor's death have a right to should be proportionate unless otherwise provided by the donor.
the legitime and their heirs and successors in interest may ask for the
reduction or inofficious donations. Rules on revocation CHARTED!
Those referred to in the preceding paragraph cannot renounce
their right during the lifetime of the donor, either by express REVOCATION, Birth, Non-compliance Ingratitude
declaration, or by consenting to the donation. based on… appearance, or with condition or

126
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

adoption of a conditions complaint after having

child failed to fulfill
Time of action Within 4 years Within 4 years Within 1 year the condition
from birth of first from non- from the time
child, or compliance with the donor had Rules on reduction CHARTED!
From his the condition knowledge of
legitimation, or the fact of the REDUCTION, Failure of Inofficiousnes Birth, Fraud
Adoption, or But if it s an ingratitude based on… the donor to s for being in appearance against
From the judicial onerous reserve excess of , or creditors
declaration of donation, within sufficient what the adoption of
filiation, or 10 years from means for donor can a child
From receipt or non-compliance support give by will
info regarding with the Time of action Any time by Within 10 Same as in The action
the existence of condition the donor or years (Santos first column for
the child by the v Alana case, rescission
believed dead relatives based on must be
Transmissibility Transmitted to May be Generally, the entitled to 1144) brought
of action children and transmitted to action is not support within 4
descendants of the donor s heirs transmitted to during the Within 5 years years from
the donor upon and may be the heirs of the lifetime of after the the
his death exercised donor nor can the donor death of the perfection
against the the action be donor (if of the
donee s heirs filed against the propter donation,
heirs of the nuptias, or at the
donee according to latest, from
Effect of Property Property Property book) the time
revocation affected shall be donated shall be donated shall be the creditor
returned, or its returned to the returned but had
value if the donor and the alienations and knowledge
donee has sold alienations and mortgage of the
the same, or mortgages are effected before donation
The donor may void subject to the notation of Transmissibilit Not Transmitted to Same as in Transmitte
redeem the the rights of the complaint for y of action transmissibl the donor s first column d to the
rd
mortgage on the innocent 3 revocation in the e as the heirs as the creditor s
property, with a persons Registry of duty to give donation shall heirs or
right to recover Property shall support and be reduced as successors
the property subsist the right to regards the -in-interest
Liability for fruits Donee shall Donee shall Same as in first receive are excess at time
return the fruits return the fruits column personal in of the donor s
accruing from which he may nature death
the filing of the have received Effect of Reduced to Takes effect Same as in Property

127
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

revocation the extent during the first column affected

necessary lifetime of the shall be
to provide donor subject returned by
support to reduction the donee
only upon his for the
death with benefit of
regard to the the creditor
excess subject to
the rights
of innocent
third
persons
Liability for Donee is Donee Donee, as Fruits of
fruits entitled to appropriates owner, the
the fruits as the fruits as appropriate property
owner of the owner of the s the fruits affected
property property of the shall also
donated property not be
affected by returned. In
the case the
reduction, donee
but with acted in
regard to bad faith
the excess, and it
he shall be should be
liable only impossible
for the fruits for him to
from the return, then
filing of the indemnify
complaint the donor s
creditor for
damages.

Happy the man who finds wisdom, the man who gains understanding! 
 --
Proverbs 3:13

Thus you may walk in the way of good men, and keep to the paths of the
just. For the upright will dwell in the land, the honest will remain in it; But the
wicked will be cut off from the land, the faithless will be rooted out of it. 
 --
Proverbs 2:20-22

128
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!