2013 Bar Reviewer in Property

2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

 PROPERTY  3.

By: Atty. Enrique V. dela Cruz, Jr.1

4.

Property - Anything which is or may be the object of appropriation (Art 414, NCC).

 Classification of Things: (CAN)



Types of Immovable Property (Art. 415, CC)

1. Res Communes - those that belong to everybody. 2. Res Alicujus - those that are owned by a person or a group of person. 3. Res Nullius - those which do not have any owner.

1. Land, buildings, roads and constructions of all kinds adhered to soil. Land is immovable by its very nature. However, a shoveful of land should be considered as personal property because it no longer adheres to the soil.

 Characteristics of Property: (USA) 1. Utility 2. Substantivity or individuality 3. Appropriability

Buildings are considered immovable provided they are more or less of a permanent structure substantially adhering to the land and not mere superimpositions on the land like barong-barong or Quonset fixtures.

 Classification of Property: 1. As A. B. 2. As A. B.

to mobility Immovable or real property Movable or personal property to ownership Property of public dominion Property of private ownership

A dismantled house and/or materials of such house should be regarded as personal property. (Biscera et al. vs. Teneza et al., Nov. 29, 1962)

 Classification as to Mobility

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

A. IMMOVABLE PROPERTIES (NIDA) Classification: 1. 2.

in such a manner as to form an integral part thereof. (Art. 415, pars.1-3, CC ) Real by DESTINATION - those which are placed in an immovable for the use, exploitation or perfection of such immovable. (Art. 415, pars.4-7,9, CC) Real by ANALOGY - those which are considered immovable by operation of law. (Art. 415, par. 10, CC)

Trees are considered as real property, by nature if they are the spontaneous products of the soil, and by incorporation if they were planted through labor.

Real by NATURE - those which cannot be moved from place to place. (Art. 415, pars. 1 and 8, CC) Real by INCORPORATION - those which are attached to an immovable

Trees detached or uprooted from the land are considered as personal property.

1

Atty. Dela Cruz is an MCLE lecturer and a Bar Reviewer. He teaches law at UST, FEU-DLSU and the Bulacan State University. He obtained his Master of Laws (with Distinction) from the London Metropolitan University, and a Postgraduate Diploma in International Trade Law from the University College London (UCL), U.K., both as a Chevening scholar of the British government. He completed a Postgraduate Fellowship on Leadership and International Relations from the John F. Kennedy School of Government, Harvard University, USA. He also holds a Masters in Public Management degree from the Ateneo School of Government. He obtained his Bachelor of Laws degree (with honors) and an AB Legal Management degree (cum laude) from the University of Santo Tomas as a Rector’s Scholar. He was recently elected as Board Member of the 2nd District of Bulacan. He is also a Partner at the Ponce Enrile Reyes & Manalastas (PECABAR) Law Office based in Makati City.

In case of uprooted timber in a timber land, the uprooted timber is still considered as real property because it still forms an integral part of the timber land which is an immovable. Growing crops, by express codal provision, are considered as real property. However, under the Chattel Mortgage Law, growing crops may be considered as personal property. 3. Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

breaking the material or deterioration of the object.

7. Fertilizer actually used on a piece of land.

For the incorporated thing to be considered as immovable property, the injury or breakage or deterioration in case of separation must be substantial.

8. Mines, quarries and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant. Mines, including the minerals therein are immovable property. But when the minerals are extracted, the latter becomes movable property.

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

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

 Requisites a. Placed by the owner or by an agent of the owner of the land or immovable; b. It is attached in such a manner that it reveals an intention to attach it permanently.

Vessels are considered as personal property. However, they partake to a certain extent of the nature and conditions of immovable property because of their value and importance in the world of commerce. 10. Contracts for public works, servitudes and other real rights over immovable property.

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

B. MOVABLE PROPERTIES 1. Those movables susceptible of appropriation which are not included in Art. 415.

 Requisites

2. Real property which by any special provision of law is considered personalty.

a. The placing must be made by the owner of the tenement, his agent, or duly authorized representative. b. The industry or works must be carried on in the building or land. c. The machines must tend directly to meet the needs of said industry or works. d. The machines must be essential and principal elements in the industry, and not merely incidental.

3. Forces of nature which are brought under control by science. 4. In general, all things which can be transported from place to place without impairment of the real property to which they are fixed. (Art. 416, CC) 5. Obligations and actions which have for their object movables or demandable sums, and

6. Animal houses, pigeon houses, beehives, fishponds or breeding places of similar nature, in case their owner has placed them with intention to have them permanently attached to the land, and forming permanent part of it; animals in these places are included.

6. Shares of stock of agricultural, commercial and industrial entities, although they may have real estate. (Art. 417, CC)



 Requisites a. The structure is placed by the owner; and b. The installation must be with the intention to have them permanently attached to the land and forming a permanent part of it.

Classification as to Ownership

A. PROPERTY OF PUBLIC DOMINION Public dominion – the State has control and administration for the collective enjoyment of people.

 Kinds

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

1. for public use



It may be used by anybody. 2. for public service It may be used only by authorized persons.

All properties belonging to private persons and those belonging to the State and any of its political subdivisions which are patrimonial in nature. (Art. 425, CC)

 OWNERSHIP (1977 Bar) It is the independent and general right of a person to control a thing particularly in its possession, enjoyment, disposition, and recovery, subject to no restrictions except those imposed by the State or by private persons, without prejudice to the provisions of law.

Not for general use but for some state function. Only the state may own property for public service. 3. for the development of the national wealth

Rights of an Owner (CUPFREED) 1. Right to consume or destroy or abuse 2. Right to possess 3. Right to use 4. Right to recover or vindicate 5. Right to enjoy 6. Right to the fruits 7. Right to encumber or alienate 8. Right to dispose



Characteristics of Properties of Public Dominion (C²VA²P) 1. Outside the commerce of man 2. Cannot be acquired by prescription. 3. Cannot be appropriated 4. Cannot be subject matter of contracts hence cannot be alienated 5. Cannot be subject to attachment or execution 6. Cannot be burdened by voluntary easement. 7. Cannot be registered under the Land Registration Law and be the subject of a Torrens Title.

Limitations upon the right of ownership (1977 Bar) 1. General limitations imposed by the State for its benefit a. power of eminent domain b. police power c. power of taxation

B. PRIVATE OWNERSHIP I. Patrimonial property of the state • Those which is not a part of the public dominion • Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State. • Can be alienated only be an authority of law (legislature)

2. Specific limitation imposed by law (LED PERIL) a. easements relating to waters b. right of way c. party wall d. light and view e. drainage f. intermediate distances g. easement against nuisance h. lateral and subjacent support

II. Property of LGUs a. Property for public use  Consist of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public works paid for by said provinces, cities or municipalities. (Art. 424, CC) b. Patrimonial property  All other property possessed by provinces, cities and municipalities without prejudice to the provisions of special laws. (Art. 424, CC)

3. Limitations imposed by the party transmitting the property either by contract or by will, 4. Limitations imposed by the owner himself, such as voluntary servitudes, mortgages, pledges, and lease rights, and 5. Inherent limitations arising from conflict with other rights, such as those caused by contiguity of property.

 Remedies for Recovery of Property

III. Property of Private ownership

1. Personal Property

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

Replevin – an action or provisional remedy where the complainant prays for the recovery of the possession of personal property. (Sec. 1, Rule 60, Rules of Court)

period for the termination of the lease, the lease ends automatically without need of any demand; hence the one year demand is counted from the expiration of the period. 2. If the reason for the ejectment is non-payment of rent or nonfulfillment of the conditions of the lease, the one year period is counted from the date of demand to vacate.

2. Real Property Accion Interdictal 



action for the recovery of the material or physical possession and must be brought in the MTC within 1 year from the date of the forcible entry or unlawful possession. The issue involved is possession de facto, not possession de jure or ownership.

 Kinds i.

ii.

Forcible entry – a summary action to recover material or physical possession when a person originally in possession was deprived thereof by force, intimidation, strategy, threat or stealth. (Sec. 1, Rule 70, Rules of Court)

Accion Publiciana

Unlawful detainer – an action that must be brought when possession by a landlord, vendor, vendee, or other person of any land is being unlawfully withheld after the expiration or termination of the right to hold possession by virtue of any contract, express or implied.

FORCIBLE ENTRY Possession of the defendant is unlawful from the beginning as he acquires possession by force, intimidation, strategy, threat or stealth. One year period is counted from the dispossession or on the date of actual entry. Plaintiff must prove that he was in prior physical possession of the premises until he was unlawfully deprived thereof by the defendant. No previous demand for the defendant to vacate necessary.





 Kinds

UNLAWFUL DETAINER Possession is lawful in the beginning but becomes illegal from the time defendant unlawfully withholds possession after the termination of his right thereto. One year period is counted from the date of last demand or last letter of demand. Plaintiff need not have been in prior physical possession.

Demand jurisdictional.

It is a plenary action for the recovery of the right to possess, and must be brought within a period of ten (10) years. What is involved is not possession de facto but possession de jure.

i.

ii.

That where the entry was not obtained through force, intimidations, stealth, threat or strategy. This action can be brought as soon as dispossession takes place without waiting for the lapse of one year. That where the one year period for bringing forcible entry or unlawful detainer has already expired.

Accion reivindicatoria  



It is an action to recover ownership over real property. The action must be brought in the Regional Trial Court where the real property is located. Prescriptive period: 10 or 30 years depending on the existence of good faith or bad faith.

 Requisites

is

1. Identity of the property; 2. Strength of plaintiff’s title. (Art. 434, CC)

NOTE: 1. If there is a fixed

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

 Doctrine of self-help (Art. 429, CC)

 Surface Rights

The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property.

The owner of a parcel of land is the owner of its surface and everything under it. (Art. 437, CC)

 Restrictions on Surface Right: 1. 2. 3. 4.

Servitudes or easements; Special laws – like Mining Law; Ordinances; Reasonable requirements of aerial navigation; 5. Regalian Doctrine – the doctrine which reserves to the State all natural wealth that may be found in the bowels of the earth, even if located in private lands.

 Requisites a. Person who employs force or violence must be the owner or lawful possessor; b. That person must be in actual possession; c. There must be actual or imminent aggression which is unlawful; d. Only reasonable force is employed; and e. No delay in one’s exercise.

 HIDDEN TREASURE

Any hidden and unknown deposit of mone, jewelry or other precious objects, the lawful ownership of which does not appear. (Art. 439, CC)

 Sic utere tuo ut alienum non laedas The owner may use the property only in such a manner that it does not injure others. (Art. 431, CC)

 Requisites of Hidden Treasure (HVO) 1. Hidden or unknown deposit 2. Of valuable objects 3. The lawful owner being unknown



Doctrine of State of Necessity (Art. 432)

 Rules 1. Hidden treasure belongs to the owner of the land on which it is found. 2. If the discovery is made in the land of another, or of the State or any of its subdivisions, one-half shall be given to the finder. 3. If the discovery is by chance, one-half shall be given to the finder. 4. If the finder is a trespasser, he shall not be entitled to any share in the treasure. 5. If the things found be of interest to science or arts, the State may acquire them at their just price. (Art. 438, CC) 6. If the finder or owner is married, his share belongs to the conjugal partnership. 7. If the finder is a laborer hired to look for hidden treasure: He is entitled to his wage or salary only.

The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the owner from the interference, is much greater.

 Requisites a. The interference must be necessary to avert imminent danger; b. The threatened damage must be greater than the damage caused to the owner of the thing; c. Only such interference as is necessary shall be made in order to avert the damage. General Rule: Compensation demanded by the property owner.

may

be

Exception: No compensation if the injury is:

 ACCESSION

•

Caused by the property owner, and • The person who intervened was not at fault.

It is the right by virtue of which the owner of a thing becomes the owner to everything which is produced thereby, or

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

incorporated or attached thereto, naturally or artificially. (Art. 440, CC.)



either

iii.

He who is in good faith may be held responsible but he should not be penalized. He who is in bad faith must be penalized. No one should enrich himself unjustly at the expense of another. Bad faith of one party neutralizes the bad faith of the other so both should be considered in good faith. (Paras, Property, Vol. II, 2002 ed., p. 210)

iv.

Classification of Accession

v.

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

vi.

a. Natural fruits Spontaneous products of the soil, and the young and other products of animals.(Art.

A. With regard to Immovable property

442, CC)

1. Accession industrial, or that which takes place in case of: (BPS) a. building, b. planting, c. sowing. (Arts. 445 – 455, CC)

“Pratus Sequitor Ventrem” – the offspring follows the dam – or mother. This principle applies when the male and female animals belong to different owners and produce an offspring.

2. Accession natural, which may be in the form of either: a. Aluvium; b. Avulsion; c. Change of river course; d. Formation of islands

However, this principle will not apply if the parties stipulate otherwise. b. Industrial fruits Those produced by lands of any kind through cultivation or labor. (Art. 442, CC)

B. With regard to Movable Property

c. Civil fruits

1. Adjunction or conjucnction; 2. Commixtion or confusion; 3. Specification.

Rents of buildings, the price of leases of lands and other property and the amount of perpetual or life annuities or other similar income (Art. 442, CC).

RULES on ACCESSION CONTINUA I. ACCESSION INDUSTRIAL

Stock dividends are civil fruits being surplus profit.

Rights and Obligations of the Landowner (LO), Owner of Materials (MO), and Builder, Planter, Sower (BPS)

GENERAL RULE: The owner of the land owns the fruits.

A. Landowner (LO) constructs or plants on his land with the materials of another

EXCEPTIONS: (ULAPP) a. possessor in good faith of the land; b. usufructuary c. lesee (gets the fruits of the land); d. antichresis (the antichretic creditor gets the fruits) e. pledge

Rights of LO

2. Accession Continua

LO in GF and Material owner in GF

1. right of appropriation after payment of indemnity, except when the material owner had chosen he limited right of removal

LO in BF and Material Owner

1. Right of appropriation after payment of indemnity + pay damages in GF In GF

The right pertaining to the owner of a thing over everything which is incorporated or attached thereto, either naturally or artificially. Basic Principles: i. ii.

Accessory follows the principal. The union or incorporation must, with certain exceptions, be effected in such a manner that to separate the principal and the accessory would result in substantial injury to either.

Material

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Rights of Owner of Material 1. Right of reimbursement 2. Limited right of removal if no injury to the work constructed, or without plantings or construction being destroyed 1. Right of reimbursement + damages, or 2. Absolute right of removal plus damages. In GF

2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

Owner in BF

1. Right to acquire the improvements without paying reimbursement, and 2. Right to demand damages In BF Same as though acted in good faith

1. Forfeits the material + pay damages 2. Right to reimbursement for necessary expenses of preservation of the land In BF Same as though acted in good faith

damages, or 2. Demand the removal at BPS expense + damages 3. Compel the BP to buy the land, regardless of the value of the land or S t pay the rent Obligations are the same as above

B. Builder, planter, sower (BPS) builds, plants or sows on another’s land using his own materials LO in GF and BPS in GF

LO is in BF, BPS in GF

BPS in BF

LO 1. Right of appropriation after payment of indemnity, or 2. Right to compel BP to pay the price of land and S, the proper rent Exception: Value of the land is greater than the value of the building or planting. Hence, forced lease is the remedy, the term of which is as per agreement of the parties. In case of disagreement, the court shall fix the terms thereof Obligations: 1. Must pay for necessary expenses for preservation 2. Pay BPS expenses made by 3rd persons in the production, gathering and preservation of the fruits, when appropriate (Art 443) 3. Pay damages In GF 1. Appropriate the work without payment +

In BF Same as though acted in good faith

BPS Rights or obligations depend on LO’s choice, either to receive payment or to buy the land/pay rentals

of necessary expenses for the preservation of land

In BF Same as though acted in good faith

II. ACCESSION NATURAL a. Alluvion/alluvium To the owners of the land adjoining the banks of rivers belongs the accretion which they gradually receive from the effects of the currents of the waters (Art. 457, CC)

 Requisites 1. The accumulation of soil is gradual and imperceptible. 2. It is the result of the action of the water of the river. 3. The land where the accretion tales place is adjacent to the bank of the river. 4. The soil deposits are comparatively little. 5. The river must continue to exist Reasons why Alluvium is granted to the riparian owner: 1. To compensate him for the loss he may suffer due to erosion or the destructive force of the water and danger from floods. 2. To compensate him because his property is subject to encumbrances and legal easements; 3. The riparian owner is the best person who can cultivate the land; 4. Since it cannot be said with certainty from whom the soil came from, it may just as well be given to the riparian owner.

1. Right of removal + damages, or 2. Right of reimbursement + damages, and in either case, 3. Right of retention until paid

NOTES: Operates ipso jure. However, the additional area is not covered by a Torrens title since it is not included therein. So, the riparian owner must register the additional area.

Forfeits the material + pay damages Right of reimbursement

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

A sudden and forceful action like that of the flooding is not the alluvial process contemplated by Article 457 and the rationale for this rule is to provide compensation to the landowners who are continually exposed with the destructive force of water and subjected to various easements. Alluvion must be the exclusive work of nature.

4. The river bed must be abandoned by the government. 5. The river must continue to exist. NOTES: When a river or stream suddenly changes its course to traverse private lands, the owners of the affected lands may not compel the government from taking steps to revert the river or stream to its former course.

b. Avulsion The accretion which takes place whenever the current of a river, lake, creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate. (Art. 459, CC);

The owners of the lands thus affected are not entitled to any compensation for any damage sustained thereby. However, the former owners of the new bed shall be the owners of the abandoned bed in proportion to the area lost by each.

 Requisites (CSI) a. The segregation and transfer must be caused by the current of a river, creek or torrent; b. The segregation and transfer of soil is sudden and abrupt; and c. The portion segregated can be identified.

The owners of the affected lands may undertake to return the river or stream to its old bed at their own expense; Provided, that a permit therefore is secured from the Minister of Public Works and works pertaining thereto are commenced within two years from the change in the course of the river or stream. (Art. 58, P.D. No. 1067) d. Formation of islands

NOTES: The owner has up to 2 years to recover the portion of land segregated. Failure to do so would have the effect of automatically transferring ownership over it to the owner of the other estate.

 Rules 1. Formed on the sea a. Within Phillipine waters – owned by the State. b. Outside Philippine waters – owned by the first occupant. 2. Formed in navigable/floatable rivers – owned by the State 3. Formed on non-navigable/nonfloatable rivers a. If NEARER in margin to one bank, the owner of nearer margin is SOLE owner. (Art. 465, CC) b. If EQUIDISTANT, the islands shall be divided longitudinally in halves, each bank getting half. (Art. 465, CC)

In case of uprooted trees, the owner of the land from where they came from should claim the trees within 6 months. However, recovery can be done within 4 years, the period allowed to recover movables. (Art. 460, CC) ALLUVIUM Deposit of soil is gradual and imperceptible Soil cannot be identified Belongs to the owner of the property to which it is attached.

AVULSION Sudden or abrupt process may be seen Soil is identifiable Belongs to the owner from whose property it was detached.

NOTES: A river is navigable if useful for floatage and commerce, whether the tides affect the water or not.

c. Change of river course Takes place when a river bed is abandoned through natural change in the natural course of the waters (Art. 461, CC);

Whenever the current of the river divides itself into branches, leaving a piece of land or part thereof isolated, the owner of the land retains his ownership. He also retains it if a portion of land is separated from the estate by the current. (Art. 463, CC)

 Requisites (PANES) 1. The change in the river course must be sudden; 2. The change must be permanent; 3. The change must be natural

Reason for preference to owner of NEARER margin: the nearer margin has better chances of developing the island.

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

B. With respect to movable property 1. Adjunction or Conjunction It is the process by virtue of which two movables belonging to different owners are united in such a way that they form a single object (Art. 466, CC). Adjunction may be done in good faith and in bad faith.

 Kinds of Adjunction a. b. c. d. e.

inclusion soldering escritura (writing) pintura (painting) weaving

If PO acted in GF, and AO in BF

1. Appropriate s the thing. 2. Entitled to damages from AO

If PO acted in BF, and AO acted in GF

AO has the AO may: option to be 1. Demand 1. Reimbursed value of for the value accessor of accessory y plus plus damages damages, or , or 2. Separation 2. Demand of the separatio accessory n even if even if principal principal is is destroyed destroye plus d plus damages. damages Same as though both acted in GF

 Requisites 1. two things must belong to different owners; 2. they form a single object.



Tests to Determine the Principal or Accessory: (Art. 467and 468, NCC) 1. That to which the other has been united as an ornament, or for its use or perfection (test of importance or purpose) 2. that of greater value (test of value) 3. if they are of equal value, that of the greater volume, (test of volume) and 4. If not one of these tests can be applied, then, the question will be resolved by taking into consideration all pertinent provisions applicable as well as their respective merits, utility and volumes. (test of merits)

the thing EXCEPT, when the accessory is more valuable than the principal, the AO may demand separation though there may be damage 1. Loses the thing incorpora ted 2. Indemnify PO for damages

Both acted in BF

2. Commixtion or confusion

 Special Rule:

The combination or union of materials where the respective identities of the component elements are lost.

In painting and sculpture, writings, printed matter, engraving and lithographs, the board, metal, stone, canvass, paper or parchment shall be deemed the accessory thing. (Art. 468, par.2, NCC) Owner of principal (PO) If owner of the principal and owner of accessor y acted in good faith (GF)

Appropriates the thing after payment of value of accessory in its uncontroverted state.

a. Commixtion – if solids are mixed. b. Confusion – if liquids are mixed.

 RULES

Owner of accessory (AO) Right to demand payment of the value of accessory, or Right to demand separation if no injury to

a. If the mixture is caused by one owner in good faith or by the will of both owners, or by chance, or by a common agent – each owner acquiring an interest or right proportional to the value of his material (Co-ownership results.) b. If caused by the will of one party in BF: a. he loses his material; and

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

c.

b. he is liable for damages. If both are in bad faith, their respective rights shall be determined as tough both acted in good faith.

A. From the viewpoint of subject matter 1. Co-ownership of an undivided thing 2. Co-ownership of an undivided right B. From the viewpoint of source 1. Contractual co-ownership 2. Non-contractual co-ownership

3. Specification It is the giving of a new form to the material of another thru the application of labor. (Art. 474, CC).

C. From the viewpoint of the rights of coowners 1. Tenancy in common or coownership as contemplated in Art. 484 2. Joint Tenancy or joint ownership

 RULES a. If the worker (principal) is in GF: 1. he appropriates the new thing; 2. he must indemnify for the materials.

 Tenancy in common or Co-ownership

distinguished from Joint Tenancy TENANCY IN JOINT TENANCY COMMON or CO-OWNERSHIP Involves a physical Involves a physical whole but there is an whole but there is IDEAL (abstract) NO IDEAL division; division; each co- each and ALL of owner being the them own the owner of his own WHOLE thing. ideal share. Each co-owner may Each co-owner may dispose of his ideal not dispose of his or undivided share own share without without the other’s the consent of all the consent. rest. If a co-owner dies, If a joint tenant dies, his share goes to his his share gores by own heirs. accretion to the other joint-tenants by virtue of their survivorship. If a co-owner is a If a joint-tenant is minor, his minority under a legal does not benefit the disability, this other co-owners for benefits the others the purpose of and prescription will prescription. not run against them.

EXCEPTION: If the materials are more precious than the new thing or is more valuable, the owner of the material has an option: 1. to get the new thing but he pays for the work; or 2. to demand indemnity for the material. b. If the worker is in BF, the owner of the material has an option: 1. He can appropriate the work without paying for the labor; or 2. He can demand indemnity for the material plus damages. EXCEPTION: The option of appropriation is not available if the value of the resultant work is more valuable for scientific or artistic reasons.

 CO-OWNERSHIP

 Requisites of Co-ownership (SOS)

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

1. Plurality of subjects 2. Unity of the Object; and 3. Recognition of the ideal or undivided shares of the co-owners which determine their rights and obligations. (2 Tolentino, Civil Code, p. 140)

It is that state where an undivided thing or right belongs to different persons. (Art. 484, CC) Sources of Co-ownership 1. 2. 3. 4. 5.



 Characteristics of Co-ownership

Law Contract Chance Occupation Succession

1. There must be more than one owner. 2. There is one physical whole divided into ideal shares. 3. Each ideal share is definite in amount, but it is not physically segregated from the rest. 4. Regarding the physical whole, each co-owner must respect each other in

Kinds of Co-ownership

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

the common use, enjoyment or preservation of the physical whole 5. Regarding the ideal share, each coowner holds almost absolute control over the same. 6. The co-ownership does not have juridical personality. 7. A co-owner is in a sense a trustee for the other co-owners.

Co-owners may be two or more Profits are proportional to respective interests Death of one does not extinguish the coownership

 Co-ownership distinguished from

Generally, all the coowners administer

Partnership CO-OWNERSHIP PARTNERSHIP May be created by Always created by law, contract, contract. succession, fortuitous event or occupancy. The purpose is the The purpose is to common enjoyment obtain profits. of the thing or right owned in common. Has no juridical Has a juridical personality which is personality which is separate and distinct separate and distinct from that of the cofrom the partners. owners. An agreement not to No limitation upon divide the community the duration of property for more partnerships. than 10 years is not allowed by law. A co-owner has no A partner has the power to represent power to represent the co-ownership. the partnership. If a co-owner If a partner transfer transfers his share to his share to a third a third person, the person, the latter latter automatically does not become a becomes a copartner, unless owner. agreed upon by all of the partners. The division of the The division of profits benefits and charges and losses may be is fixed by law. subject to the agreement of the partners. The death of a coThe death of a owner has no effect partner shall result in upon the existence of the dissolution of the the co-ownership. partner.

Conjugal owners are always only two Profits are generally 50-50 unless a contrary stipulation is provided in the marriage settlement Death of either husband or wife dissolves the conjugal partnership Generally, the husband is the administrator

 Rules and Principles I. Shares in Benefits and Charges The shares of the co-owners in the benefits and charges shall be proportional to their respective interests. Any stipulation to the contrary shall be void. (Art. 485, CC) To do so would be contrary to the nature of co-ownership. II. Right to Use Property Owned in Common Each co-owner may use the property owned in common. (Art 486, CC)

 Limitations upon the right of a co-owner to use the thing owned in common 1. The property must be used in accordance with the purpose intended. 2. A co-owner may use the property in such a way as not to injure the interest of the co-ownership. 3. A co-owner may use the property in such a way as not to prevent the other co-owners from using it according to their rights. (Art. 485, CC) III. Action for Ejectment Any one of the co-owners may bring an action for ejectment. (Art. 486, CC)

 Co-ownership distinguished from

Ejecctment covers the following: forcible entry, unlawful detainer, accion publiciana, accion reivindicatoria, quieting of title, and replevin.

Conjugal Partnership CO-OWNERSHIP CONJUGAL PARTNERSHIP May arise by reason Arises only because of an ordinary of marriage contract Gender of the coOne must be a male, owners is immaterial the other a female

IV. Expenses for Preservation

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

Each co-owner shall have a right to compel the other co-owners to contribute to the expenses of preservation of the thing owned in common and to the taxes even if incurred without prior notice. (Arts. 488-489, CC)

Majority – those who represent the controlling interest in the object of the coownership. (Financial Majority)

 Acts of Management

1. Those that do not involve an alteration. 2. Those that may be renewed from time to time. 3. Those that do not have transitory effects, i.e., do not bind the coownership for a long time in the future. 4. Those that do not give rise to a real right over the property owned in common. 5. Those which, even if called an alteration, do not affect the substance or nature of the thing. 6. Those for the common benefit of all the co-owners and not only for only one or some of them.

A co-owner may exempt himself from this duty to reimburse by renouncing so much of his undivided share as may be equivalent to his share of the expenses and taxes. No waiver shall be made if it is prejudicial to the co-ownership. Expenses for preservation may be mate at the will of one of the co-owners. (Art. 489, CC) V. Expenses Embellishment

for

Improvement

or

Expenses to improve or embellish the thing shall be decided upon by a financial majority of the co-owners. (Art. 489, CC) VI. Alterations

 Limitations on the Right of the Financial Majority 1. There should first be a notice to the minority so that they can be heard. 2. The majority would be justified in proceeding only when the urgency of the case and the difficulty of meeting with the minority render impracticable the giving of such notice. 3. The minority may APPEAL to the court against the decision of the majority when: a. there is no real majority; b. the resolution is seriously prejudicial to the rights of a co-owner;(Art. 492, CC) c. when the majority refuses to correct abuse of administration or maladministration; d. when the minority is made the victim of fraud; e. when an alteration is agreed upon, instead of mere act of administration.

An alteration is a change: 1. which is more or less permanent; 2. which changes the use of the thing; and 3. which prejudices the condition of the thing or its enjoyment by the others. Alteration must be made with the consent of ALL the co-owners, whether beneficial or not. Illegal alteration – if made without the express or implied consent of the other coowners.

 Effects of an Illegal Alteration 1. The co-owner responsible may lose what he has spent. 2. Demolition can be compelled. 3. He would be liable for losses and damages. 4. But, whatever benefits the coownership derives will belong to the co-ownership.



Number of Co-owners Who Must Consent a. Repairs, action for ejectment – ONE b. Alterations or Acts of Ownership – ALL c. All others, like useful improvements, luxurious embellishments, acts of administration and better enjoyment – FINANCIAL MAJORITY

VI. Administration and Better Enjoyment of Property Owned in Common For the administration and better enjoyment of the property owned in common, the resolutions of the majority shall be binding.

VII. Right of Co-owner as to the Ideal Share

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1. Each co-owner shall have full ownership of his part and the fruits and benefits pertaining thereto. (Art. 493, CC)

NOTE: As a general rule, a co-owner cannot acquire the co-owned property by prescription.

2. He may alienate, assign or mortgage his ideal share, without prejudice to the exercise of the other co-owners of their right of legal redemption. (Art. 493, CC)

However, a co-owner can become the exclusive owner of the shares of the other co-owners provided the following requirements are complied with:

Such alienation, assignment or mortgage shall be limited to the portion allotted to the co-owner in the division upon the termination of the co-ownership. (Art. 493, CC)

1. He clearly repudiates the coownership and claims full ownership of the thing; 2. Such act of repudiation is communicated to such coowners;; 3. The evidence thereon is clear and conclusive; 4. Possession in the concept of an owner (public, adverse, open, uninterrupted); 5. After the lapse of the period fixed by law. (Lagura vs. Levantino, 71 Phil. 566)

3. He may substitute another person in its enjoyment, except when personal rights are involved. 4. He may exempt himself in the payment of the necessary expenses and taxes by renouncing part of his interest in the co-ownership. (Art. 488, CC) VIII. Partition No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. (Art. 494, CC)

 POSSESSION It is the holding of a thing or the enjoyment of a right, either by material occupation or by the fact of subjecting the thing or the right to our will. (Art. 523, CC.)

GENERAL RULE: Demandable as a matter of right.

 Requisites of Possession

EXCEPTIONS: (ULAND) a. When there is an agreement to keep the thing undivided – must not go beyond 10 years. b. When prohibited by the donor or testator – cannot exceed 20 years. c. When prohibited by law. d. When partition renders the thing unserviceable. e. When the legal nature of the thing does not allow partition

1. The corpus or holding or material detention or enjoyment of a thing or right; and 2. Animus possidendi or intent to possess the thing or right. Possessor in good faith – when the possessor is not aware that there exists a flaw in his title or mode of acquisition which invalidates it. (Art. 526,CC) Mistake upon a doubtful or difficult question of law may be the basis of bad faith. (Art. 526, CC)

 Termination of co-ownership

1. Extrajudicial Partition; 2. Judicial Partition; 3. Merger or consolidation of ownership in one co-owner of the thing; 4. Loss or destruction of the thing; 5. By expropriation; 6. When by prescription, one co-owner has acquired the whole property be adverse possession; 7. When a stranger acquires by prescription the thing owned in common.

Degrees of Possession 1. Possession without any title whatsoever in violation of the right of the true owner; 2. Possession with juridical title, but not in the concept of an owner; 3. Possession with just title, or a title which is sufficient to transfer ownership, but not from the true owner;

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

4. Possession with just title from the owner.

It is presumed that the present possessor who was also the possessor at previous time, has continued to be in possession during the intervening time, unless there is proof to the contrary. (Art. 1138, par. 2, CC)

 Classes of Possession 1. Possession in one’s name or possession in the name of another. 2. Possession in the concept of an owner or possession in the concept of a holder; and 3. Possession in good faith or bad faith

7. Possession of Movables with Real Property The possession of real property presumes that of the movables therein, so long as it is not shown or proved that they should be excluded. (Art. 542, CC)

 Presumptions Regarding Possession 1. Good Faith

Good faith is always presumed and upon him who alleges bad faith on the part of the possessor rests the burden of proof. (Art. 527, CC) 2. Continuity Possession

of

Character

8. Exclusive Possession of Common Property Each one of the participants of a thing possessed in common shall be exclusively possessed the part which may be allotted to him upon the division thereof, for the entire period during which the copossession lasted. (Art. 543, CC)

of

It is presumed that possession is enjoyed in the same character in which it was acquired, until the contrary is proved. (Art. 529, CC)

 Acquisition of Possession

1. By the material occupation of a thing or the exercise of a right; 2. By subjection to our will; 3. By constructive possession or proper acts and legal formalities. (Art. 531, CC)

3. Non-interruption of possession The possession of hereditary property is deemed transmitted to the heir without interruption, and from the moment of the death of the decedent, in case the inheritance is accepted. (Art. 533, CC)

Distinguish Occupation from

Possession OCCUPATION POSSESSION It is a mode of Not a mode of acquiring ownership acquiring ownership Occupation when Possession does not proper, confers by itself give rise to ownership ownership Only corporeal things Corporeal things and can be the object of incorporeal things, occupation such as rights, can be the object of possession A parcel of land Land cannot be the cannot be the object object of possession of occupation Occupation can take Possession can refer place only with to all kinds of respect to property property, whether without an owner. with or without an owner.

4. Presumption of Just Title A possessor in the concept of an owner has in his favor the legal presumption of that he possesses with just title, and he cannot be obliged to show or prove it. (Art. 541, CC) 5. Non-interruption of Possession of Property Unjustly Lost but Legally Recovered One who recovers, according to law, possession unjustly lost, shall be deemed for all purposes which may redound to his benefit, to have enjoyed it without interruption. (Art. 561, CC) 6. Possession Period

During

 Possession cannot be acquired

1. thru force or intimidation; (Art. 536, CC) 2. thru tolerance or permission;

Intervening

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

3. thru clandestine, secret possession or possession without knowledge.. (Art. 537, CC)

 Possession as a Fact General Rule: Possession as a fact cannot be recognized at the same time in two different personalities. Exceptions: 1. co-possessors; 2. possession in different concepts or different degrees.

Ornamental expenses

 Rules in case of Conflict of Possession 1. Present possessor is preferred; 2. If both are in possession, the one longer in possession shall be preferred. 3. If possession started at the same time, the one with a title is preferred. 4. If both have title, the court will determine. (Art. 538, CC)

NOTE: The winner in the action has the option of refunding the amount of expense or of paying the increased value thereof. No right of refund or retention, but can remove ornaments if no substantial injury is caused. NOTE: Owner has an option to: 1. allow possessor to remove; or 2. retain for himself the ornaments by refunding the amounts spent.

 Effects of Possession 1. right of a person to be respected in his possession; 2. protection in said right or restoration to said possession through legal means; 3. The writ of preliminary mandatory injunction. Reasons for Requiring Legal Means 1. to prevent spoliation or disregard of public order; 2. to prevent deprivation of property without due process of law; 3. to prevent a law from taking the law into his own hands.

Improvement s by Nature or Time

Rights and Obligations as to Possession Subject Possessor Possessor in in Good Bad Faith faith Fruits To the To the owner possessor Necessary To To possessor: expenses possessor; without the with right to right to retain retain the the thing thing until reimbursed Useful Reimburse No expenses d to reimbursemen possessor t with right of retention

Liability for Loss or Deterioration

Pertains to the owner or lawful possessor Not liable except when it is proved that he acted with fraudulent intent or negligence.

No right of refund or retention, but can remove ornaments if no substantial injury is caused. NOTE: Owner has an option to: 1. allow possessor to remove; or 2. retain for himself the ornaments by refunding the amount of ornaments at the time the owner enters into possession.

Pertains to the owner or lawful possessor Liable in all cases even if caused by a fortuitous event.

 Loss of Possession

a. Through the possessor’s voluntary will and intent 1. Abandonment 2. Assignment b. Against the possessor’s will

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

1. Possession of another for more than one year 2. Final Judgment in favor of another with a better right 3. Expropriation 4. Prescription in favor of another 5. Recovery or reivindication by the legitimate owner or possessor. c.

recover it from the person possession of the same.

is

the

 USUFRUCT

It is a real right by virtue of which a person is given a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law provides otherwise. (Art. 562, CC.)

voluntary

 Requisites 1. The abandoner must have been a possessor in the concept of an owner. 2. The abandoner must have the capacity to renounce or to alienate. 3. There must be a physical relinquishment of the thing or object. 4. There must be no more spes recuperandi or expectation to recover and no animus revertendi or intent to return or get back.



B. Natural characteristic - obligation of preserving the form and substance

Possession for more than one year – this refers to possession de facto where the possessor loses the right to summary action but; but he may still bring accion publiciana or reivindicatoria.

C. Accidental characteristics or element - those which are the subject of stipulation (e.g. the term of the contract) Object of Usufruct 1. may be real or personal property; 2. may be sterile or productive fruits; 3. may be created over a right, as long as it is not strictly personal or intransmissible.

A thing is lost when it perishes, goes out of commerce or disappears in such a way that its existence is unknown, or it cannot be recovered. (Art. 1189, CC)

 Possession of Movables of

movable

Characteristics of Usufruct A. Essential characteristics 1. It is a real right. 2. It is of a temporary nature or duration. 3. Its purpose is to enjoy the benefits and derive all advantages from the object as a consequence of normal use or exploitation.

Assignment - is the complete transmission of ownership rights to another person, onerously or gratuitously.

Possession acquired:

has

Exceptions: (CHEMP²) a. If the possessor obtained the movable in GF at a public sale, the owner cannot get it back unless he reimburses the possessor; b. If the owner is stopped; c. Court order; d. If purchased at a merchant’s store; e. If title is lost by prescription; f. If the possessor is the holder in due course of a negotiable instrument

Because of the Object 1. Destruction or total loss of the thing 2. Going out of commerce 3. Escaping from possessor’s control of wild animals.

Abandonment renunciation of a thing.

who

 Usufruct and Lease Distinguished

property

Basis

1. In BAD faith – never equivalent to title. 2. In GOOD faith General Rule: A person, who lost or has been unlawfully deprived of a movable, may

16

USUFRUCT

LEASE

as to EXTENT

Covers all Covers only fruits and use particular use

as to NATURE of the right

Always REAL Real right only right if lease is over real property and it is registered for

2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

a. Usufruct over rights – right must not be strictly personal or intransmissible b. Usufruct over things i. Normal or perfect usufruct – involves non-consumable things where the form and substance are preserved. ii. Abnormal or imperfect usufruct – involves consumable property.

more than 1 year as to the Created only CREATOR of by owner the right

Lessor may or may not be the owner

as to ORIGIN Constituted Constituted by by law, by will contract of private persons in act inter vivos or mortis causa, and by prescription as to REPAIRS

Usufructuary responsible for ordinary repairs

Not responsible

as to TAXES Usufructuary responsible for taxes on the fruit

Not responsible

5. As to terms and conditions a. Pure usufruct – no term or condition b. With a period or a term i. ex die – from a certain day. ii. in diem – up to a certain day. iii. ex die in diem – from a certain day up to a certain day. c. With a condition

 Classification of Usufruct



1. As to origin a. Legal – created by law. b. Voluntary or Conventional – created by will of the parties inter vivos or mortis causa. c. Mixed or Prescriptive – created by both law and act of a person. 2. As to quantity or extent of fruits or object a. Fruits – total or partial (depending on whether all the fruits are given or not) b. Object i. Universal – over entire patrimony. ii. Singular or particular –only individual things.

Rights of the Usufructuary: (AFIRE²) 1. Right to the fruits 2. Right to enjoy any increase in the accession or any servitude 3. Right to alienate the right of usufruct 4. Right to recover real property or a real right, or movables 5. Right to make useful and ornamental expenses 6. Right to recover the increase in value of the property due to indispensable repairs made



Obligations of the Usufructuary 1. Commencement of Usufruct a. to make an inventory of the property; b. to give necessary security or bond (Art. 583, CC).

 Effect of failure to give security A. The owner may demand the following: 1. that the immovables be placed under administration; 2. that the movables be sold; 3. that the public bonds, instruments of credit payable to order or bearer be converted into registered certificates or deposited in a bank or public institution; 4. that the capital and the proceeds of the sale of the

3. As to number of persons enjoying the right a. Simple – if only one usufructuary enjoys. b. Multiple – if several usufructuaries enjoy. i. Simultaneous ii. Successive 4. As to quality or kind of objects involved

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

movables be invested in safe securities

1. by death of the usufructuary Exceptions: a. in case of multiple usufructs; (Art. 611, CC) b. in case there is a period fixed c. in case the contrary intention clearly appears 2. by the expiration of the period for which it was constituted or the fulfillment of any resolutory condition 3. by merger of the usufruct and ownership in the same person 4. by renunciation of the usufructuary 5. by the total loss of the thing in usufruct 6. by the termination of the right of the person constitution the usufruct 7. by prescription 8. non-fulfillment of a mode imposed on the usufructuary 9. rescission or annulment of the contract 10. legal ways of extinguishing usufruct 11. mutual dissent 12. alienation to innocent purchaser for value

B. The owner may retain possession of the property as administrator until security is given. C. To claim any matured credits forming part of the usufruct, the usufructuary shall need the authorization of the owner of or the court. When security or bond not required: a. no one will be injured b. waiver c. usufructuary is the donor of the property d. in case of usufruct by parents e. in case of caucion juratoria



Caucion juratoria

The usufructuary, being unable to file the required bond or security, files a verified petition in the proper court asking for the delivery of the house and furniture necessary for himself and his family without any bond or security (Art. 587, CC)



NOTE: The same rule can be applied to the instruments or tools necessary for an industry or vocation which the usufructuary is engaged.

EASEMENT or SERVITUDE

It is a real right constituted on another’s property, corporeal and immovable, by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something on his property for the benefit of another thing or person.” (3 Sanchez Roman 572)

2. Pendency of Usufruct (SATTOE) a. to take care of the property as a good father of a family; (Art. 589, CC) b. to make ordinary repairs on the property; (Art. 592, CC) c. to notify the owner in case the need for extraordinary repairs on the property is urgent; (Art. 593, CC) d. to pay annual taxes and those considered as liens on the fruits; (Art. 596, CC) e. to notify the owner of any act of a 3rd person that may be prejudicial to the right of ownership; (Art. 601, CC) f. to pay the expenses, cost and liabilities in suits with regard to the usufruct. (Art. 602, CC)

It is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. (1995 Bar Exams) The immovable in favor of which the easement is established is called dominant estate; that which is subject thereto, the servient estate. (Art. 614, CC.) Characteristics: 1. Real right 2. Imposable upon another’s property 3. Alienable 4. A limitation or encumbrance on the servient estate for another’s benefit 5. Inseparable from the estate to which it belongs. 6. Indivisible 7. Perpetual 8. A right that is limited by the needs of the dominant owner or estate, without possession;

3. Termination of Usufruct a. to deliver the thing to the owner; (Art. 612, CC) b. to reimburse or indemnify owner, in the proper case.

 Extinguishment of the usufruct: (MELD PTR N READ)

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

9. It cannot consist in the doing of an act unless the act is accessory in relation to the real easement.

3. To renounce the easement if he desires to exempt himself from contribution to necessary expenses; (Art. 628, par. 1, CC) 4. To ask for mandatory injunction to prevent impairment of his use of the easement.(Resolme vs. Lazo, 27 Phil. 416)



CLASSES OF EASEMENT (1998 Bar Exams) A. As to recipient of BENEFIT 1. Real – for the benefit of another immovable belonging to a different owner, or 2. Personal – for the benefit of a community, or one or more persons to whom encumbered estate does not belong

Obligations: 1. He cannot alter the easement or render it more burdensome; (Art. 627, par. 1,CC) 2. He shall notify the servient owner of works necessary for the use and preservation of the servitude; (Art. 627, par 2,CC) 3. He must choose the most convenient time and manner in making the necessary works as to cause the least inconvenience to the servient owner; (Art. 627, par. 2,CC) 4. He must contribute to the necessary expenses if there are several dominant estates in proportion to the benefits derived from the works. (Art. 628, par. 1,CC)

B. As to EXERCISE 1. Continuous – those the use of which is or may be incessant, without intervention of any act of man. 2. Discontinuous – used at intervals and depends upon the acts of man. 3. Apparent – made known and are kept in view by external signs that reveal the use and enjoyment of the same. 4. Non-Apparent – shows no external indication of their existence.

 SERVIENT OWNER

C. As to SOURCE 1. Legal – established by law. 2. Voluntary –established by will of the owners.

Rights: 1. To retain ownership of the portion of the estate on which the easement is established ( Art. 630) 2. To make use of the easement ( Art. 628, par. 2), unless there is an agreement to the contrary. 3. To change the place or manner of the use of the easement, provided it be equally convenient ( Art. 629, par. 2)

D. As to the DUTY OF THE SERVIENT OWNER 1. Positive – the servient owner must allow something to be done in his property or does it himself. 2. Negative – the servient owner must refrain from doing something which he could lawfully do if the easement did not exist.

Obligations: 1. He cannot impair the use of the easement (Art. 629, par. 1) 2. He must contribute to the necessary expenses in case he uses the easement, unless there is an agreement to the contrary. ( Art. 628, par. 2)

 MODES OF ACQUIRING EASEMENTS a. If continuous and apparent – by title and by prescription (10 years) b. If continuous and no-apparent– by title c. If discontinuous and apparent– by title d. If discontinuous and non-apparent – by title

DOMINANT OWNER

RIGHT OF DOMINANT OWNER TO MAKE NECESSARY WORKS

Rights: 1. To exercise all the rights necessary for the use of the easement; (Art. 625, CC) 2. To make on the servient estate all works necessary for the use and preservation of the servitude; ( Art. 627, par. 1, CC )

The right granted by Article 627 is subject to the following conditions: 1. The works which shall be at his expense- necessary for the use and preservation of the servitude

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

2. They do not alter or render the servitude more burdensome 3. The dominant owner, before making the works, must notify the servient owner. 4. Done at the most convenient time and manner.

 Easement Relating to Waters I. II. III.



MODES OF EXTINGUISHMENT OF EASEMENTS

IV. V.

1. Merger of ownership of the dominant and servient estate; 2. Non-use for 10 years; a. Discontinuous easement – from the time it ceased to be used. b. Continuous easement – 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; 4. Expiration of the term or the fulfillment of the condition; 5. Renunciation of the owner of the dominant estate; 6. Redemption 7. Expropriation of the servient estate 8. Permanent impossibility to make use of the easement 9. Annulment or cancellation of the contract of easement 10. Registration of the servient estate as free and without an encumbrance in the Torrens System in favor of an innocent purchaser for value 11. Cessation of necessity

VI. VII.

natural drainage of lands (Art. 637) natural drainage of buildings (Art. 674) easement on riparian banks for navigation, floatage, fishing, salvage (Art. 638) easement of a dam (Arts. 639, 647) easement for drawing water or for watering animals (Arts. 640-641) easement of aqueduct (Arts. 643646) easement for the construction of a stop lock or sluice gate (Art. 647)

Natural Drainage of Lands Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from higher estates, as well as the stones or earth which they carry with them. (Art. 637,CC) Duty of the Servient estate He cannot construct works which will impede this easement. (Art. 637,CC) Duty of the Dominant estate 1. He cannot make works which will increase the burden; (Art. 637,CC) 2. He may construct works to prevent erosion; (Art. 114, Law of Waters) Easements for Drawing Water or for Watering Animals

 Requirements for Easement to exist

 LEGAL EASEMENTS

1. It must be for public use. 2. It must be in favour of a town or village. 3. There must be payment of proper indemnity. (Art. 641,CC)

They are imposed by law, and which have for their object either public use or the interest of private persons. (Art. 634, CC)

NOTES: Easements for drawing water and for watering animals carry with them the obligation of the owners of the servient estate to allow passage to persons and animals to the place where such easements are to be used, and indemnity shall include this service. (Art. 641,CC)

A. Easement Relating to Waters (Arts. 637- 648,CC) B. Easement of Right of Way (Arts. 649657,CC) C. Easement of Party Wall (Arts. 658666,CC) D. Easement of Light and View (Arts. 667-673,CC) E. Easement of Aqueduct/Drainage (Arts. 674-676,CC) F. Intermediate Distances ( Arts. 677681) G. Against Nuisance (Arts. 682- 683) H. Lateral and Subjacent Support (Arts. 684-687)

 Easement of Aqueduct Aqueduct – the right to make water flow thru intervening estates in order that one may make use of said waters.

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.



 Requisites to Acquire Easement 1. Indemnity must be paid to the owners of intervening estates 2. If for private interests, the easement cannot be imposed on existing buildings, courtyards, annexes, outhouses, orchards or gardens. 3. There must be proof: a. That he can dispose of the water; b. That the water is sufficient for ther use for which it is intended; c. That the proposed course is the most convenient and the least onerous to third persons and the servient estate; d. That proper administrative permission be obtained.



If the passage is permanent, pay the value of the land occupied by the path plus damages. If temporary, pay for the damages caused.

 Test of Adequacy The true standard for the grant of the legal right of easement of the right of way is adequacy. If there is already an existing outlet from the dominant estate to a public highway, even if inconvenient, the need to open another is unjustified. (Costabella Corp. vs. CA, Jan. 25, 1991) Notes:

Note:

The width of the easement shall be that which is sufficient for the needs of the dominant estate. (Art. 651,CC)

For legal purposes, the easement is considered continuous and apparent. Construction of a Stop Lock or Sluice Gate (Art. 647,CC)

The width may be changed from time to time. (Art. 651,CC)

Requisites 1. Purpose must be for irrigation or improvement; 2. The construction must be on the estate of another; 3. Damages must be paid; 4. Third persons should not be prejudiced.

 Easement of a Party Wall Party Wall - it is the wall at the dividing land of estates built by common agreement such that it occupies a portion of both estates on equal parts. Presumptions of existence:

 Easement of Right of Way

1. In dividing walls of adjoining buildings up to the point of common elevation; 2. In dividing walls of gardens or yards situated in cities, towns, or in rural communities, 3. In fences, walls and live hedges dividing rural lands. (Art. 659,CC)

Right of way It is the easement or privilege by which one person or a particular class of persons is allowed to pass over another’s land, usually through one particular path or line.

Rebuttal of Presumption: The presumption is rebutted by title, exterior sign or proof to the contrary. (Art. 651, CC)

 Requisites 1. The estate is surrounded by estates of others. 2. There is no adequate outlet to a public highway. 3. There musts be payment of proper indemnity. 4. It must be established at a point less prejudicial to the servient estate. 5. The isolation must not be due to the proprietor’s own acts. 6. Demandable only by the owner or one with a real right.

Rights of Part Owners: 1. Use it in proportion to the right he may have in the co-ownership.  Limitation: he must not interfere with the common and respective uses by the other co-owners. (Art. 666,CC) 2. Increase the height of the party wall. (Art. 665,CC) a. at his own expense;

Indemnity

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

b. upon payment of the proper indemnity c. must bear the costs of maintenance of the portion added; d. must pay for the increased cost of preservation; e. must reconstruct if original wall cannot bear the increased height; f. must give additional space (land) necessary if the wall is thickened.

 Intermediate Distances Constructions 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. (Art. 677, CC) Trees No trees shall be planted near a tenement or piece of land belonging to another, except: 1. At the distance authorized by ordinances or customs at the place, or; 2. In the absence thereof, at least two (2) meters for tall trees and at least fifty (50) centimetres from the dividing line of the estates. (Art. 679, CC)

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

 Requisites a. Maximum size – 30 cm. square. b. There must be an iron grating imbedded in the wall. c. There must be a wire screen. d. The opening must be at the height of the ceiling joists or immediately under the ceiling.

Notes: Remedy for violation: right to demand that said trees be uprooted. The distances also apply to trees which have grown spontaneously. (Art. 679, CC)

2. Easement of View (jus prospectus) – the right to make openings or windows to enjoy the view through the estate of another. The easement of light is necessarily included as well as the easement of altius non tollendi, or the right not to build higher for the purpose of obstruction.

Intrusions or extrusions of Branches and Roots: a. Branches – adjacent owner has the right to demand that they be cut off. b. Roots – adjacent owner may cut them off himself.

Proper Distances: 1. Direct views – at least two meters distance between the wall having the windows and the boundary line. 2. Side or oblique views – at least 60 cms. Between the boundary line and the nearest edge of the window.

Fruits

 Rules as to fruits 1. If the fruits still hang on the tree – owned by the tree owner. 2. It is only after the fruits have NATURALLY fallen that they belong to the owner of the invaded land.

 Modes of Acquisition 1. By title 2. By prescription a. Positive easement – counted from the time of the opening of the windows, if it is done through a party wall; b. Negative easement – counted from the time of formal prohibition upon the owner of the adjoining land or tenement if the window is through a wall on the dominant estate. (Art. 668,CC)

 Lateral and Subjacent Support No person shall make such excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support. (Art. 684, CC) Any proprietor intending to make excavations shall notify the owners of the adjacent lands. (Art. 687, CC)

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

due diligence to prevent such children from playing therewith or resorting thereto, is liable to a child who is injured thereby, even if the child is technically a trespasser. (Jarco Marketing Corp. vs. CA, 321 SCRA 375 [1999])

 VOLUNTARY EASEMENTS They are constituted by the will of the parties or of a testator. Voluntary easements are constituted in favor of:

Remedies against a PUBLIC Nuisance 1. Prosecution under Revised Penal Code or any local ordinance; 2. Civil action ; 3. Abatement without judicial proceedings. (Art. 699, CC)

1. Predial servitudes: a.For the owner of the dominant estate; b.For any other person having any juridical relation with the dominant estate, if the owner ratifies it.

Remedies against a PRIVATE Nuisance 1. civil action; 2. abatement without proceedings. (Art. 705, CC)

2. Personal servitude – for anyone capacitated to accept.

judicial



Requisites for Summary abatement of nuisance by a private person 1. must be specifically injurious to person affected; 2. no breach of peace or unnecessary injury must be committed; 3. prior demand has been made to the owner or possessor to abate the nuisance; 4. such demand has been rejected; 5. approval by the district health office and with assistance of local police; and 6. value of destruction does not exceed P3,000.00. (Arts. 704, 706, CC)

 NUISANCE Nuisance Any act, omission, establishment, business or condition of property or anything else which: 1. injures or endangers the health and safety of other; 2. annoys or offends the senses; 3. shocks, defies or disregards decency or morality; 4. obstructs or interferes with the free passage of any public highway or street, or any body of water; 5. hinders or impairs the use of property. (Art. 694, CC)

 MODES OF ACQUIRING OWNERSHIP(1977 Bar) 1. Original mode Ownership is acquired independent of any pre-existing or preceding title or right of another.

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

Original modes of acquiring ownership: a. intellectual creation; b. occupation. 2. Derivative mode Ownership is based on a right previously held by another person. Derivative modes of acquiring ownership: a. succession; b. donation c. prescription d. law; e. tradition

 Doctrine of Attractive Nuisance A person who maintains in his premises a dangerous instrumentality of a characteristic which is attractive to children of tender years at play and who fails to exercise

 Original Modes

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

A. Intellectual creation E. Tradition (1977 Bar) It is mode of acquisition by virtue of which the author acquires intellectual property or ownership over the products of his intellect, with the consequent power to authorize or refuse publication or production of such products.

A consequence of certain contracts such as sale by virtue of which, actually or constructively, the object is placed in the control and possession of the transferee.

B. Occupation

 Kinds of Tradition: 1. Real or material tradition – physical delivery 2. Constructive Tradition a. traditio symbolica – parties make use of a token or symbol to represent the thing delivered. b. traditio longa manu c. traditio brevi manu – when the vendee already has possession of the thing sold by virtue of another title. d. traditio constitutum possesorium – when the vendor continues in possession of the thing sold not as an owner but in some other capacity. 3. Quasi-tradition delivery of incorporeal property 4. By operation of law

It is the acquisition of ownership by seizing corporeal things that have no owner, made with the intention of acquiring them, and accomplished according to legal rules. The object subject to occupation must be appropriable by nature.

 Requisites (CICOS) 1. There must be a seizure or apprehension; 2. The thing seized must be corporeal personal property; 3. There must be an intention to acquire ownership over the thing; 4. The thing seized must be without any owner; 5. There must be compliance with the rules prescribed by law.

 Instances of occupation 1. Hunting and fishing 2. Finding of movables which do not have an owner 3. Finding of abandoned movables 4. Finding of hidden treasure 5. Catching a swarm of bees that has escaped from its owner, under certain conditions 6. Catching of domesticated animals that have escaped from their owner, under certain conditions 7. Catching of pigeons without fraud or artifice 8. Transfer of fish to another breeding place without fraud or artifice



MODES OF EXTINGUISHING OWNERSHIP 1. Voluntary (AAD) a. Abandonment b. Alienation i. Onerous ii. gratuitous c. Voluntary destruction 2. Involuntary (FARDO) a. Fortuitous loss or destruction b. Accession continua c. Rescissory actions d. Judicial decree e. By operation of law

 Derivative Modes

DONATION - an act of liberality whereby a person disposes gratuitously a thing or right in favor of another who accepts it. (Art. 725,CC)

A. Succession B. Donation

 Characteristics of Donations

It is an act of liberality whereby a person disposes gratuitously a thing or right in favor of another who accepts it. (Art. 725,CC)

1. consent, subject matter, cause (as in other contracts) 2. the necessary form 3. Consent or acceptance by done during donor’s lifetime 4. Irrevocability (except for legal causes)

C. Prescription D. Law

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

5. intent to benefit the done (animus donandi) 6. resultant decrease in the assets or patrimony of the donor

NOTES: Donations with an onerous cause shall be governed by the rules on contracts. Remunatory donations shall also be governed by the rules on contracts as regards that portion which exceeds the value of the burden imposed. (Art. 733, CC)

 Requisites 1. decrease or reduction of the patrimony of the donor; 2. increase of the patrimony of the donee ; 3. animus donandi or intent to make donation; and 4. acceptance by the donee except donation propter nuptias

Illegal or impossible conditions in simple and remunatory donations shall be considered as not imposed. (Art. 727, CC) If the donation is mortis causa, the formalities for the execution of wills shall be complied with. (Art. 728, CC)

 Classification of Donations



Persons capacitated to make donations 1. Those who have capacity to enter into contracts; 2. Those able to dispose of his property; 3. Those not prohibited or disqualified by law from making donations.

A. As to effectivity 1. Inter vivos 2. Mortis causa B. From the viewpoint of occasion 1. Ordinary donation 2. Donation propter nuptias C. As to consideration: 1. Simple – the cause is pure liberality; gratuitous. 2. Remunatory: a. to reward past services, provided they do not constitute a demandable debt; b. compensatory or conditional

NOTES: The donor’s capacity shall be determined as of the time of making the donation. (Art. 737, CC) “Making” must be interpreted to mean “perfection” of donation. A donation between persons guilty of adultery at the time of the donation is void. Also, Art. 87, FC, provides that the prohibition against donation between spouses now applies to donation between persons living together as husband and wife without a valid marriage for otherwise, the condition of those who incurred guilt would be better than those in the legal union. (Matabuena vs. Cervantes, 38 SCRA 284)

 Donation Inter Vivos and Donation

Mortis Causa Distinguished Donation INTER Donation MORTIS VIVOS CAUSA Takes effect during Takes effect upon the lifetime of the the death of the donor donor Must follow the Must follow the formalities of formalities of wills or donations. codicils. Title or ownership Title or ownership conveyed before conveyed after the death of donor. death of the donor. Must be accepted by Can only be the donee during the accepted after the lifetime of the donor. death of the donor. Generally irrevocable Always revocable at during donor’s any time before the lifetime, except for donor’s death. grounds provided by law. (Arts. 760, 765) Valid if donor should Void if donor survives survive donee. donee. Subject to donor’s Subject to estate tax tax

Donations PROHIBITED BY LAW 1. Those made by persons 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 or her spouse, descendants or ascendants by reason of his or her office; 4. Those made to a priest who heard the confession of the donor during the latter’s last illness or minister of gospel who extended spiritual aid to him during same period;

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

5. Those made to relatives of such priest or minister within the 4th degree, the church, order to which such priest or minister may belong; 6. Those made by the ward to the guardian before approval of final accounts, unless the guardian is an ascendant, descendant, brother, or sister; 7. Those made to the attesting witnesses to the execution of donation if there is any, or to the spouse, parents or children or anyone claiming under them; 8. Those made to a physician, surgeon, nurse, health officer or druggist who took care of donor during last illness; 9. Those made to individuals, associations and corporations not permitted by law to accept donations ; 10. Those made by spouses to each other during marriage, or to persons of whom the other spouse is a presumptive heir. (Arts. 739, 740, 1027, CC and Art. 87, FC)

noted in both donation is void.

deeds,

otherwise

b. If the value of the movable donated is P5,000.00 or less: i. Can be made orally – but there must be simultaneous delivery of the movable or the document representing the right donated. ii. Can be made in writing – but the law does not require the acceptance to be in writing. Donations of Immovable Property It must be in public instrument specifying property donated and burdens assumed by the donee regardless of value. NOTE: Acceptance must be either: 1. In the same instrument, or 2. In another public instrument, but, notify the donor in authentic form, and noted in both deeds. otherwise donation is void.

NOTES: The adultery or concubinage need not be proved in a criminal action. In the same civil action for the declaration of nullity, the guilt may be proved by preponderance of evidence.

Acceptance The donation is perfected from the moment the donor knows of the acceptance by the donee. (Art. 734, CC)

Minors and others who cannot enter into contracts may become donees but acceptance shall be done through their parents or legal representatives. (Art. 741, CC)

Acceptance must be made during the lifetime of the donor and of the donee. (Art. 746,CC)

Donations made to conceived or unborn children may be accepted by those persons who would legally represent them if they were already born.

If the donation and acceptance are in the same instrument, containing the signature of both the donor and the done, it is understood that there is already knowledge of the acceptance, hence, donation is already perfected. (Laureta vs. Mata, 44 Phil. 668)

 Formalities of Donations

The donee must accept the donation personally, or through an authorized person with a special power for that purpose, or with a general and sufficient power, otherwise, the donation shall be void. (Art. 745, CC)

Donation of Movable Property a. If value of the movable donated is more than P5,000.00: i. It should always be in writing. ii. The acceptance should also be in writing.

 Limitations: 1. Donations cannot comprehend future property. (Art. 751, CC) 2. No person may give or receive, by way of donation, more than what he can give by virtue of a will. (Art. 752, CC) 3. The donation should not be inofficious.

NOTE: Acceptance must be either: 1. In the same instrument; or 2. In another public instrument, notify the donor in authentic form, and

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2013 BAR REVIEWER IN PROPERTY By: ATTY. ENRIQUE V. DELA CRUZ, JR.

Reason: It is only after the death of the donor that the net estate may be ascertained and on which basis, the legitimes may be determined. (Mateo vs. Lagua, 29 SCRA 864)

It should not impair the legitime. The heirs of the donor have 5 years from the death of the donor to revoke or reduce the donation 4. The donation should not prejudice creditors.

 Grounds for Revocation 1. Non-fulfillment of condition

The creditors thereby prejudiced have 4 years from the knowledge of the donation to rescind the donation – accion pauliana.

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.

5. The donation should not impair support for the donor and his family.

Prescriptive period: After four (4) years from the non-compliance of the condition.

Can be reduced as much as may be: Necessary - In extreme cases, the donation can be revoked if the donor gave away so much, and the donor and his family need everything back.

This action may be transmitted to the donor’s heirs, and may be exercised against the donee’s heirs. (Art. 764, CC) 2. Ingratitude (Art. 765, CC) a. If the donee should commit an offense against the person, honor or property of the donor, or of his wife, or children under his parental authority; b. 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 to the donee himself, his wife or children under his authority; c. If he unduly refuses to give support when the donee is legally or morally bound to give support to the donor.

Payment of debts by the Donee 1. If there is express stipulation, the donee shall pay only debts contracted before the donation, if not otherwise specified; but the donee answers only up to the value of the property donated, if no stipulation is made to the contrary. 2. If there is no stipulation as to payment of debts, the donee shall be responsible therefor when the donation has been made in fraud of creditors. (Art. 759, CC)

 Reduction and Revocation of Donations Grounds for Reduction: 1. Birth, adoption, reappearance (Art. 760) 2. Inofficiousness (Art. 771) 3. If insufficient property is left for the support of the donor and his relatives (Art. 750) 4. If made in fraud of creditors. (Art. 1387)

Reason: One who has been the object of generosity must not be ungrateful. NOTES: This right to revoke is personal to the donor.

NOTES:

The acts of ingratitude under Art. 765 are exclusive.

Only those who at the time of the donor’s death have a right to the legitime and the heirs and successors-in-interest may ask for the reduction of inofficious donations. (Eloy Imperial vs. CA et al., Oct. 8, 1999)

The action to revoke by reason of ingratitude prescribes after one year counted from the time the donor had knowledge of the fact and it was possible for him to bring the action. (Art. 769, CC)

Prescriptive period: within 10 years from the time of the death of the donor because this is an obligation created by law.

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