Jurist Bar Review 2016 - Notes on Property

JURISTS BAR REVIEW CENTER NOTES ON PROPERTY ATTY. FRETTI G. GANCHOON

I. IN GENERAL DEFINITION 

Property refers to “all things which are or may be the object of appropriation” (Art. 414)

CHARACTERISTICS 

(1) Utility, (2) Individuality, and (3) Susceptibility of appropriation

CLASSIFICATION 

In general, things are either (1) Corporeal or Tangible, or (2) Incorporeal or Intangible



Corporeal things may be further classified by reason of (1) ownership, (2) mobility, (3) definiteness, (4) existence, 3 (5) divisibility, (6) importance, (7) capability of substitution, (8) consumability, and (9) alienability



The most important classification is based on mobility. REASON: Different provisions of the law govern the acquisition, possession, disposition, loss and registration of immovables and movables. The Civil Code requires stricter formalities in transactions involving immovables, e.g. in donations (Art. 749), contribution of immovables to a partnership (Art. 1771) and antichresis (Art. 2134).

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PROPERTY BASED ON MOBILITY 1. IMMOVABLES / REAL PROPERTY 

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The list of immovables under Art. 415 is considered exclusive (Standard Oil v. Jaramillo, 44 Phil. 630). ART. 415 LIST OF IMMOVABLES (1) Land, buildings, roads and constructions of all kinds adhered to the soil; (2) Trees, plants, growing fruits, while they are attached to the land or form an integral part of an immovable; (3) Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object; (4) Statues, reliefs, printings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements; (5) Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said 5 industry or works;

CLASSIFICATION An immovable by nature and incorporation incorporation incorporation

destination

destination

Those which are manifest to the senses, i.e., they can be seen and touched. Those which are not manifest to the senses & conceived only by understanding, e.g. rights or credits. 3 (1) public or private, (2) movable or immovable, (3) generic or specific, (4) present or future, (5) divisible or indivisible, (6) principal or accessory, (7) fungible or non-fungible, (8) consumable, non-consumable, (9) within the commerce of man or outside the commerce of man 4But the Civil Code enumeration is not the only criterion as to which properties are real or personal, e.g. Chattel Mortgage Law considers growing crops as personal property. 5 Davao Sawmill v. Castillo, 61 Phil. 709 (machineries placed by lessee); Mindanao Bus v. City Assessor, 6 SCRA 197 (machineries were not essential & principal elements of the industry); Caltex v. Central Board, 114 SCRA 296 (machineries attached or fixed permanently to the gas station site or embedded therein). 1 2

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2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 1 of 20

(6) Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a 6 permanent part of it; the animals in these places are included; (7) Fertilizer actually used on a piece of land; (8) Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant; (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; (10) Contracts for public works, and servitudes and other real rights over immovable property.

destination

incorporation nature destination analogy

2. MOVABLES 

GENERAL TESTS OF MOVABLE CHARACTER (Art. 416): (1) whether the object can be carried from place to place; (2) whether the change of location can be effected without injury to an immovable to which the object is attached, and (3) whether the object is included in any of the ten paragraphs of Art. 415.



Includes (1) real property which by any special provision of law is considered as personal property (e.g. growing crops under the Chattel Mortgage Law), (2) forces of nature, (3) obligations and actions which have for their object movables and sums of money, and (4) shares of stock (Arts. 416-417).

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PROPERTY BASED ON OWNERSHIP 1. PROPERTY OF PUBLIC DOMINION 

Those that are for: (1) public use; (2) public service; and (3) development of national wealth.



CHARACTERISTICS: (1) cannot be alienated or leased or otherwise be the subject matter of contracts; (2) cannot be acquired by prescription; (3) cannot be attached nor levied upon by execution; (4) cannot be burdened by any voluntary easement; (5) cannot be registered under the Land Registration Law and be the subject of a Torrens Title.

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9

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(Art. 420)

2. PATRIMONIAL PROPERTY 

Property owned by the State in its private, as distinguished from its public, capacity.



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. (Art. 422) 

Laurel v. Garcia, 187 SCRA 797: The fact that the Roppongi site has not been used for a long time for actual embassy service does not automatically convert it to patrimonial property. Any such conversion happens only if the property is withdrawn from public use by virtue of a formal declaration on the part of the government (e.g., by law).

3. PRIVATE PROPERTY 

Those belonging to private persons, either individually or collectively, including the patrimonial property of the State. (Art. 425) II. OWNERSHIP



DEFINITION: A relation in private law by virtue of which a thing pertaining to one person is completely subjected to his 11 will in everything not prohibited by law or the concurrence with the rights of another.

Animals must have intent to return when outside their breeding places, e.g. homing pigeons. successively. 8Examples: Roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads and others of similar character (Art. 420, par. 1), and provincial roads, city streets, municipal streets, squares, fountains, public waters, promenades and public works for public service paid for by said provinces, cities or municipalities (Art. 424, par. 1). 9 Example: Government buildings. 10 Examples: Forest lands, mines. 11TOLENTINO, citing SCIALOJA & RUGGIERO. 6

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2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 2 of 20



SCOPE: Ownership may be exercised over things or rights (Art. 427)



DISPUTABLE PRESUMPTION: Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for the recovery of the property (Art. 433).



RIGHTS OF AN OWNER 1.

Based on Art. 428 and the ROMAN LAW ATTRIBUTES OF OWNERSHIP: (a) right to possess [jus possidendi], (b) right to use [jus utendi], (c) right to the fruits [jus fruendi], (d) right to abuse/consume [jus abutendi], (e) right to dispose [jus disponendi], and (f) right to recover/vindicate [jus vindicandi]

2.

Under Art. 429, which embodies the PRINCIPLE OF SELF-HELP, the right to use force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. Note: If possession is already lost, the owner must resort to judicial process for the recovery of his property.

3.

Under Art. 430, the right to enclose or fence his land, without detriment to servitudes constituted thereon.

4.

Under Art. 431, right to construct on his land and make any plantations and excavations, without detriment to servitudes and subject to special laws and ordinances, including reasonable requirements for aerial navigation.



LIMITATIONS ON OWNERSHIP

1.

For the benefit of the State

2.

Imposed by law

3. 4.

Imposed by grantor / transferor By the owner



HIDDEN TREASURE



          

Eminent domain (Art. 435) Police power (Art. 436) Taxation REGALIAN DOCTRINE (Art. XII, Sec. 2, Constitution) Should not injure the rights of a third person (Art. 431) 12 STATE OF NECESSITY (Art. 432) Legal easements (Art. 430, Arts. 637-687) Regulation on ruinous buildings & trees in danger of falling (Arts. 482-483) Reasonable requirements for aerial navigation (Art. 437) Donor / testator may prohibit partition for 20 years (Art. 1083) Mortgages, pledges, lease rights, voluntary easements



DEFINITION & REQUISITES: (a) a deposit of money, jewelry or other precious objects; (b) hidden and unknown, and (c) lawful ownership thereof does not appear. (Art. 439)



Ownership of the hidden treasure depends on where it is found –

OWN LAND OR PROPERTY Belongs to the owner of the land or property

 

ANOTHER PERSON’S LAND OR PROPERTY ½ to the owner of the land or property ½ to the finder, provided the following requisites are fulfilled: (1) What is found is a hidden treasure, as defined by the Civil Code; 13 (2) The finder is not a trespasser; and 14 (3) The discovery must be by chance. [Art. 438]

Art. 432: 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 interference, is much greater. The owner may demand from the person benefited indemnity for the damage to him. 13 Chan vs. Iglesia ni Cristo, GR 160283, 10/14/06 (trespassers made jointly liable for damages for their tortious act of dugging a tunnel traversing the land of the church and directly under the chapel in their quest for hidden treasure) 14 Two views on what “by chance” means: (1) no purpose or intent to look for the treasure, per TOLENTINO & JURADO, citing Spanish commentators; (2) by stroke of good luck, per PARAS, based on the intent of the Code Commission (Dean Capistrano & Dean Francisco). 12

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2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 3 of 20



If the thing found be of interest to science or the arts, the State may acquire them at their just price which shall be divided in conformity with the rule stated.

III. ACCESSION 

DEFINITION / PRINCIPLE: The right by virtue of which the owner of a thing becomes the owner of everything that it may produce or which may be incorporated or attached thereto, either naturally or artificially (Art. 440). It involves the principle of accession cedit principali (the accessory follows the principal)



KINDS / CLASSIFICATION GENERAL CLASSIFICATION

SPECIFIC CLASSIFICATION

I. Accession Discreta

1.

Natural Fruits

(right of ownership to the products of a thing)

2.

Industrial Fruits

3.

Civil Fruits

II. Accession Continua

IMMOVABLES -

(right of ownership over a thing incorporated, either naturally or artificially, to that which already belongs to the owner)

1. Accession Industrial

2. Accession Natural

DEFINITION Spontaneous products of the soil & the 15 young & other products of animals (Art. 442). Those produced by lands of any kind through cultivation or labor (Art. 442). Refer to rents of buildings, price of leases of lands & other property & the amount of perpetual or life annuities or other similar income (Art. 442).

Whatever is built, planted or sown on one’s land (Art. 445) Whatever is incorporated or attached to one’s land due to the exclusive work of nature, the principal form of which are alluvion (Art. 457), avulsion (Art. 459), change in the course of a river (Art. 461) and formation of islands (Art. 465).

MOVABLES 1. Adjunction / Conjunction

2. Mixture

3. Specification

A.

The union of two movables belonging to different owners, forming a single object, in such a way that they cannot usually be separated without injury (Art. 466). The combination or union of movables/materials where their respective identities are lost (Arts. 472-473). The giving of new form to the movables/materials belonging to another by the application of labor (Art. 474).

ACCESSION DISCRETA 

To the owner belongs the natural fruits, industrial fruits & civil fruits thereof



W HEN OWNER IS NOT ENTITLED TO THE 18 lease of land; and (4) antichresis

FRUITS:

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(1) possession in good faith by another person;

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(2) usufruct;

(3)

Art. 444: Only such as are manifest or born are considered as natural… fruits. With respect to animals, it is sufficient that they are in the womb of the mother, although unborn. 16 Art. 544(1), Civil Code. 15

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2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 4 of 20

 B.

REIMBURSEMENT OF RELATED EXPENSES: He who receives the fruits has the obligation to pay the expenses made by a third person in their production, gathering and preservation. (Art. 443) ACCESSION INDUSTRIAL 

PURPOSE: To avoid a state of forced co-ownership between the owner of the land and the owner of the improvement (or materials)



The rules depend on the good faith or bad faith of the landowner and the builder/planter/sower (or the owner of the materials)

1.



There is BAD FAITH whenever the act was done with the landowner’s knowledge and without opposition nd on his part (Art. 453, 2 par.)[also applicable to the owner of the materials], or when the builder knows that he is building on the land of another or there is a defect or flaw in his title over the land (see Art. 526 by analogy).



There is GOOD FAITH whenever there is lack of such an awareness. Good faith is always presumed and upon him who alleges bad faith rests the burden of proof. (Art. 527) Good faith does not necessarily exclude negligence which gives right to damages (Art. 456).



If there is bad faith on both the landowner and the builder (or the owner of the materials), the bad faith of one neutralizes that of the other, so that both will be considered in good faith. (Art. 453)

RULE WHEN LANDOWNER BUILDS WITH THE MATERIALS OF ANOTHER (ART. 447)

LANDOWNER IN GOOD FAITH

LANDOWNER IN BAD FAITH

2.

OWNER OF MATERIALS IN GOOD FAITH

OWNER OF MATERIALS IN BAD FAITH

Landowner shall pay the value of the materials. However, the owner of the materials has the right to remove them if he can do so without injury to the work constructed. Landowner shall pay the value of the materials, plus damages. However, the owner of the materials has the right to remove them, even though their removal will cause injury to the work constructed, plus the right to be paid damages.

Using Art. 449, by analogy, the owner of the materials loses the materials without right to indemnity. *Same rule as when both the landowner and the owner of the materials are in good faith*

RULE WHEN ON ONE’S LAND, ANOTHER BUILDS, PLANTS OR SOWS (ARTS. 448-456)

LANDOWNER IN GOOD FAITH

BUILDER/PLANTER/SOWER IN GOOD FAITH 19 The landowner has the following options: (1) appropriate as his own the building, trees or plants, after payment of the necessary and useful expenses provided in Art. 546, and/or ornamental expenses provided in Art. 548, or (2) oblige the builder / planter to pay the price 20 of the land, and the sower, the proper rent. However, the builder / planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable

BUILDER/PLANTER/SOWER IN BAD FAITH The builder / planter / sower loses to the landowner what he built, planted or sown, without right to indemnity. He shall moreover pay damages to the landowner (Arts. 449, 451). However, he shall be entitled to reimbursement from the landowner of the necessary expenses made for the preservation of the land (Art. 452), without right of retention (Art. 546). If the landowner does not wish to utilize the building, trees or plants, he has the

Art. 566, Civil Code. Art. 2132, Civil Code. 19 The landowner cannot refuse to exercise any of the two options. He can even be compelled by the builder to exercise his option (Tecnogas v. CA, 268 SCRA 5). Note that demolition or removal is not one of the options granted (Tecnogas v. CA, 268 SCRA 5). It is only after the landowner has chosen to sell at a reasonable price and the builder failed to pay that demolition can be demanded (Depra v. Dumlao, 136 SCRA 475). 20 The court cannot order the landowner to sell his land to the builder because the decision on what option to take belongs to the landowner. The court can only order the landowner to exercise the options granted to him under Art. 448 (Ignao v. IAC, 193 SCRA 17). 17 18

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2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 5 of 20

rent, based on the terms agreed upon by the parties or fixed by the court. (Art. 448)

LANDOWNER IN BAD FAITH



The landowner shall pay the value of the building, trees or plants, plus damages. However, the builder / planter / sower has the option to remove the building, trees or plants, even though this would cause injury to the land, with the right to be paid damages. (Art. 454, in rel. to Art. 447)

The above rules may be applied to land held in common, upon termination of co-ownership and good faith is 21 established. It may also apply, by analogy, with respect to payment of indemnity, when a landowner sells his land 22 but retains any improvement standing thereon.

3.

RULE WHEN ON ONE’S LAND, ANOTHER PERSON BUILDS WITH THE MATERIALS OF YET ANOTHER PERSON OWNER OF THE MATERIALS IN GOOD

LANDOWNER & BUILDER BOTH IN GOOD FAITH

LANDOWNER IN GOOD FAITH, BUILDER IN BAD FAITH

C.

following options: (1) demand the demolition of the building, or the removal of the trees or plants at the expense of the builder / planter / sower, or (2) to compel the builder / planter to pay the price of the land, and the sower the proper rent, with entitlement to damages in either case. (Arts. 450, 451) *Same rule as when both the landowner and the builder / planter /sower are in good faith.* (Art. 453)

FAITH

The builder shall pay the value of the materials, with subsidiary liability on the part of the landowner if the builder is insolvent. If the landowner opts to appropriate the building, he shall reimburse the builder the value of the materials used. The builder shall pay the value of the materials. If the landowner opts to utilize the building and the builder is insolvent, he shall be subsidiarily liable for the value of the materials to the owner thereof. If the landowner opts to demand the demolition of the building, he is not liable for the value of the materials (even subsidiarily). (Art. 455, in rel. to Art. 450)

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OWNER OF THE MATERIALS IN BAD FAITH Owner of the materials will lose them to the landowner / builder, without entitlement to indemnity, plus payment of damages (Arts. 449 & 451, by analogy)

ACCESSION NATURAL 1.

ACCRETION / ALLUVION



Increase in the size of one’s land due to the gradual deposit caused by the current of the waters.



REQUISITES: (1) that the accumulation of soil or sediment be gradual & imperceptible; (2) that it be the result of the 25 action of the waters of a river; and (3) that the land where accretion takes place is adjacent to the bank of the 26 river.

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Del Campo v. Abesia, 160 SCRA 379; Ignao v. IAC, 193 SCRA 1. Pecson v. CA, 244 SCRA 407. 23 The Civil Code provided only for these four situations. 24 Bagaipo vs. CA, GR 116290, 12/8/00 (gradual, accretion, not avulsion). 25 The accretion must be the exclusive work of nature, not man-made or artificial (Vda. de Nazareno v. CA, 257 SCRA 589). 26 No alluvion if the accretion took place on a land adjoining the sea, i.e., foreshore land (Heirs of Navarro v. IAC, 268 SCRA 74). 22

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

Accretion can also take place in the lands adjoining the banks of a lake. Hence, the alluvium deposited on such 27 lands also belongs to the owners thereof.



The alluvium does not automatically become part of the registered land to which they have been added. It needs to 28 be registered under the Torrens System, otherwise it can be acquired by other persons through prescription.



Effect of increase or decrease of waters to adjoining lands: 

Adjoining lands accidentally inundated by waters of a pond / lagoon (or by the waters of a lake ) continue to belong to their respective owners. (Art. 458)



Lands left dry by the natural decrease of waters of a pond / lagoon do not belong to the owners of the lands adjoining such pond or lagoon (Art. 458) (Applicable also to lands adjoining a lake).

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

Note on foreshore land: Adjacent to the sea which is alternately covered and left dry by the ordinary flow of the tides, belongs to the public domain and the real party-in-interest to file complaint for recovery of possession is the 30 Republic, through the OSG.

2.

AVULSION



Dramatic increase in the size of one’s land due to the transfer thereto of a portion forcibly segregated from another estate by the current of a river, creek or torrent. 

SEGREGATED LAND: belongs to the land to which it is added, if the owner thereof does not remove it within 2 years. (Art. 459)



UPROOTED TREES: belong to the owner of the land upon which they may be cast, if their owner does not claim them within 6 months, with payment of the expenses incurred in gathering them or putting them in a safe place. (Art. 460) 31

3.

CHANGE IN THE COURSE OF A RIVER



ABANDONED RIVER BED: belongs ipso facto to the owners whose lands are occupied by the new course in proportion to the area lost. However, the owners of the lands adjoining the old bed shall have the right to acquire the same by paying the value thereof, which value shall not exceed the value of the area occupied by the new bed. (Art. 461) 

NEW RIVER BED: belongs to the public dominion, even if situated in a private estate (Art. 462)



SEGREGATED PORTION OF PRIVATE LAND: ownership thereof is retained by the owner (Art. 463):

4.

FORMATION OF ISLANDS



If formed on seas within the jurisdiction of the Philippines, lakes and navigable or floatable rivers – belongs to the State. (Art. 464)



If formed on non-navigable and non-floatable rivers, belongs to: (1 the owner of land adjoining the river that is nearest to the island; or (2) both owners of the lands on opposite sides of the river, if the island is in the middle of the river. (Art. 465)



Note: the islands must be formed through the successive accumulation of alluvial deposits, not a segregated portion of a land adjoining a river due to avulsion. The island must be registered; otherwise, it may be acquired by others 32 through prescription.

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Meneses v. CA, 246 SCRA 162; Government v. Colegio de San Jose, 53 Phil. 423, citing Arts. 77 & 84 of the Spanish Law of Waters of 3 August 1866. 28 Reynante v. CA, 207 SCRA 794. 29 Government v. Colegio de San Jose, 53 Phil. 423. (Also, Torrens Title does not protect riparian owner against diminution of area of his land through gradual changes in the course of the adjoining stream, Bagaipo vs. CA, GR 116290, 12/8/00) 30 Gulla vs. Heirs of Labrador, GR 149418, 7/27/06. 31 The rules apply only to natural change in the course of the river, not when the change is due to acts of man, e.g. dumping of garbage (Ronquillo v. CA, 195 SCRA 433). 32 Jagualing v. CA, 194 SCRA 607. TM

2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 7 of 20

D.

ACCESSION WITH RESPECT TO MOVABLES 1.

ADJUNCTION / CONJUNCTION



DEFINITION: There is adjunction whenever two movables belonging to different owners are united in such a way that 33 they form a single object. (Art. 466)



W HO OWNS THE SINGLE OBJECT: In general, when both the owner of the principal thing and the accessory are in good faith, the former acquires the accessory, subject to payment of the value thereof (“the accessory follows the principal”).



CRITERIA TO DETERMINE WHICH IS THE PRINCIPAL: (1) the thing to which another has been added as an ornament or for that thing’s use or perfection, and in case this criterion is not applicable, (2) the thing of greater value; or (3) the 34 thing of greater volume. (Arts. 467 & 468)



RULES OF ACCESSION (Arts. 466-471) OWNER OF ACCESSORY (OA) IN GOOD

OWNER OF ACCESSORY (OA) IN BAD

FAITH

OWNER OF PRINCIPAL (OP) IN GOOD FAITH

OWNER OF PRINCIPAL (OP) IN BAD FAITH

OP acquires the accessory, subject to indemnification of the value thereof to the OA However, if the things can be separated without injury, their respective owners can demand their separation. If the accessory is more precious or of greater value than the principal, OA may demand separation even if there would be injury to the principal thing. OP to pay the value of the accessory or suffer its separation even if there would be injury, plus payment of damages.

FAITH

OA loses the accessory, payment of damages to OP.

*Same rule where both OP and OA are in good faith.*

2.

MIXTURE



The combination or union of movables/materials where their respective identities are lost.



If two solids are mixed, the mixture is called COMMIXTION. If two liquids, CONFUSION.



RULES OF ACCESSION (Arts. 472 & 473) OWNER 1 IN GOOD FAITH OWNER 2 IN GOOD FAITH

OWNER 2 IN BAD FAITH

If both owners are in good faith (or the mixture is by their will or by chance), co-ownership is created, with each owner acquiring a right to the thing, in proportion to the part belonging to him (or in equal portions if the things are of the same kind & quantity). Owner 2 loses the thing belonging to him, plus payment of damages to Owner 1.

with

OWNER 1 IN BAD FAITH Owner 1 loses the thing belonging to him, plus payment of damages to Owner 2.

*Same rule where both owners are in good faith.*

E.g. inclusion (a gem is attached to a gold ring), soldering, weaving, painting & writing. Applied successively. In case of painting & sculpture, writings, printed matter, engraving & lithographs, the board, metal, stone, canvas, paper or parchment is deemed the accessory thing (Art. 468, 2 nd par.) 33 34

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3.

SPECIFICATION



DEFINITION: There is specification if a person uses the materials of another in whole or in part to make a thing of a different kind.



RULES OF ACCESSION (Art. 474) OWNER OF MATERIALS (OM) IN GOOD

OWNER OF MATERIALS (OM) IN BAD FAITH

FAITH

USER OF MATERIALS (UM) IN GOOD FAITH

USER OF MATERIALS (UM) IN BAD FAITH

UM can appropriate the thing thus created, subject to indemnification of the value of the materials to OM. However, if the materials used are more precious, OM has the option: (1) to appropriate the thing thus created, subject to indemnification of labor costs to UM, or (2) to demand the value of the materials. OM has the option: (1) to appropriate the thing thus created, without payment of indemnity to UM, or (2) to demand the value of the materials, plus entitlement to damages from UM, in either case.

OM loses his materials, without indemnity, plus payment of damages. (Arts. 449 & 451, by analogy).

*Same rule where both UM and OM are in good faith.*

However, OM cannot appropriate the thing thus created if it is considered of more value than the materials, for artistic or scientific reasons.

IV. ACTION TO QUIET TITLE OR TO REMOVE CLOUD THEREON 

PURPOSE: To obtain an adjudication that a claim of title to, or an interest in, property adverse to that of the complainant, is invalid, so that the complainant (and those claiming under him) may forever afterward be free from any danger of the hostile claim.



NATURE OF THE ACTION: Quasi in rem – action concerning real property that is enforceable only against the defeated party or his privies.



PROCEDURE: Rule 63 of the Rules of Court (Declaratory Relief and Similar Remedies)



REQUISITES:



35 36

1.

Action involves a real property – i.e., immovable by nature, e.g. land

2.

Plaintiff has title to such real property – which may either be legal or equitable (e.g. based on acquisitive prescription). He need not be in possession of the property. (Art. 477)

3.

There is a cloud on the title – i.e., there is an outstanding instrument, record, claim, encumbrance or proceeding, which has a prima facie appearance of validity or legal efficacy, but is actually invalid or inoperative and may impair or affect injuriously the valid title to the property (e.g. a forged instrument or an annulled contract)

PRESCRIPTIVE PERIOD: depends on whether the plaintiff is in possession or not. If in possession, action is 35 imprescriptible. If not, it may prescribe (e.g., if the action to recover is based on implied trust, it prescribes 10 36 years from the registration of the deed of conveyance or issuance of the certificate of title).

Faja v. CA, 75 SCRA 441; Spouses Mamadsual v. Moson, 190 SCRA 82. Mendizabel v. Apao, GR 143185, 2/20/2006. TM

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

Obligation of plaintiff, if action prospered: He must reimburse the defendant for repairs and improvements made by the latter. (Art. 479) V. CO-OWNERSHIP



DEFINITION: A state where an undivided thing or right belongs to two or more persons. (Art. 484)



CAUSES/SOURCES: (1) law, (2) contract, (3) succession, (4) chance, and (5) occupation



RIGHTS OF CO-OWNERS: 1. To receive a share in the benefits of the co-owned property, in proportion to their respective interests.

37

(Art. 485)

2. To use the co-owned property 

subject to certain limitations: (1) must be in accordance with the purpose for which the property is intended; and (2) in such a way as not to injure the interest of the co-ownership or prevent the other coowners from using it according to their rights. (Art. 486)

3. To bring an action for ejectment, on behalf of all (Art. 487)

38

4. To alienate, assign or mortgage his undivided or pro indiviso share (not a specific, concrete or determinate part 39 of the thing owned in common ) 

RIGHT OF LEGAL REDEMPTION: A co-owner has the right to redeem the shares of his co-owners that were sold to a third person. (Art. 1619) 

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REQUISITES: (1) sale to a 3 person by co-owner, (2) notice in writing of the sale is given to the other co-owners, and (3) redemption is exercised within 30 days from notice in writing. (Arts. 1620 & 1623)

5. To demand the partition of the thing owned in common 

Except: (1) When the co-owners have agreed to continue in the co-ownership for a period not exceeding 10 years, extendible by a new agreement for the same period; (2) When the co-ownership, not exceeding 20 years, is imposed as a condition in a donation or will; (3) When the co-owned property cannot be legally divided (e.g. party walls); and (4) When the partition will render the thing unserviceable for the use it is 40 intended (Art. 494)



Prescriptive period for filing an action for partition: imprescriptible 

Unless there is repudiation of the co-ownership; from that moment, acquisitive prescription starts to run. (Art. 494)



REQUISITES FOR VALID REPUDIATION: (1) co-owner has performed unequivocal acts of repudiation amounting to an ouster of other co-owners; (2) such positive acts of repudiation have been made 41 known to the other co-owners; and (3) the evidence thereon must be clear & convincing. 

Is registration of co-owned land in a co-owner’s sole name a valid repudiation? No. If the coowner obtained the registration in bad faith, the registration is in the nature of a constructive

Any stipulation in the contract to the contrary shall be void (Art. 485). A co-owner may sue not only a third person, but also another co-owner who takes exclusive possession and asserts exclusive ownership of the property, in order to obtain recognition of the co-ownership. (De Guia v. CA, 413 SCRA 114) 39 Unless there is already a factual partition or termination of co-ownership (Pamplona v. Moreto, 96 SCRA 775) or there has been a prior oral partition (Vda. de Reyes v. CA, 199SCRA 646). However, the mere fact that the deed purports to transfer a concrete portion does not per se render the sale void. It is valid, but only with respect to the ideal share of the selling co-owner & subject to the results of the partition upon the termination of the coownership. 40 The co-ownership of the thing can still be validly terminated under Art. 498, by allotting the property to one of the co-owners who shall indemnify the others or by selling the property, with the proceeds distributed among the co-owners. 41 Mariategui v. CA, 205 SCRA 337; Delima v. CA, 201 SCRA 641. 37 38

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or implied trust, and the action to compel reconveyance, within 10 years from registration, is 42 available to the other co-owners. 



Is redemption of the foreclosed co-owned land by only one of the co-owners a repudiation of the co-ownership? No. This does not vest in him ownership thereof because redemption is not one of the modes of terminating a co-ownership. Instead, redemption inures to the benefit of all the co-owners, with the redeeming co-owner entitled to reimbursement of the 43 redemption price.

OBLIGATIONS OF CO-OWNERS: 44

1. Share in the expenses for: (1) necessary repairs;

45

(2) improvements;

46

and (3) embellishment

(Art. 489)

2. Not alter the thing owned in common without the consent of all the other co-owners (Art. 491) 3. Get the consent of majority of the co-owners, for the administration of the common property (Art. 492) 

TERMINATION OF CO-OWNERSHIP: 47

1. Partition, written or oral,

judicial or extrajudicial



Effect on third parties: Rights of third parties relating to mortgage, servitude or any other real rights shall be respected (Art. 499). Creditors may take part in the partition and object to it being effected without their concurrence, but they cannot impugn any partition already executed, unless there has been fraud (Art. 497).



Incidents: Upon partition, there shall mutual accounting of benefits received and reimbursements for expenses made. Each co-owner shall be liable for damages caused by reason of his negligence or fraud and for defects of title and quality of portion assigned to each of the other coowners. (Arts. 500-501)

2. Prescription, after valid repudiation, by one of the co-owners. CONDOMINIUM ACT (R.A. No. 4726) 

COMMON AREAS: Condominium owners are co-owners of the common areas of the condominium project (Sec. 2)



PARTITION: One or more of the condominium owners may bring an action for partition of the entire condominium project, as if all the condominium owners are co-owners of the project in the following instances: (1) The project has not been substantially rebuilt or repaired 3 years after a material part of the project has been damaged or destroyed, (2) More than 30% of the condominium owners are opposed to the repair or restoration of the project after damage to the project which rendered ½ or more of the units untenantable, (3) More than 50% of the condominium owners are opposed to the repair, restoration, remodeling or modernization of the project which has been in existence for more than 50 years, is obsolete and uneconomic, (4) More than 70% of the condominium owners are opposed to continuation of the project after expropriation or condemnation of a material portion thereof, and (5) The project is no longer viable after it or a material part thereof has been condemned or expropriated. (Sec. 8) VI. POSSESSION



DEFINITION: It is the holding of a thing or the enjoyment of a right. (Art. 523)



KINDS: 1

IN ONE’S OWN NAME

IN THE NAME OF ANOTHER

(Art. 524)

Caladiao v. Vda. de Blas, L-19063, 29 April 1964; Mariategui v. CA, 205 SCRA 337; Adille v. CA, 157 SCRA 455. Paulmitan v. CA, 215 SCRA 866. If however, the redemption period has already lapsed, a former co-owner who purchases the property does so for his own behalf alone, as there is no longer any co-ownership to speak of at the time of the purchase (Tan v. CA, GR 79899, 4/24/89). 44 These expenses can be made by one of the co-owners even without notice to the other co-owners and despite their objections. Can a co-owner exempt himself from paying by renouncing his undivided interest as may be equivalent to his share of the expenses? Yes, but must get the consent of the co-owners & renunciation must not be prejudicial to the co-ownership. 45 These can only be made with the consent of majority of the co-owners. 46 Id. 47 Austria v. Lichauco, GR 170080, 4/03/2007. 42 43

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

2

IN THE CONCEPT OF OWNER – possession by the owner himself or one who claims to be the owner (Art. 525). Possession of this kind can ripen to ownership, by prescription (Art. 540)

3

IN GOOD FAITH – where possessor is not aware that there exists in his title or mode of acquisition any flaw which invalidates it (Art. 526)

48



Mistake upon a doubtful or difficult question of law 49 may be the basis of good faith (Art. 526)



Good faith is lost from the moment it is shown that the possessor is not unaware that he possesses the thing improperly or wrongfully. (Art. 528)

IN THE CONCEPT OF HOLDER – possession by one who does not assert a claim of ownership over the thing, as he acknowledges that ownership belongs to another person (Art. 525) 50

IN BAD FAITH – where possessor knows that his title to the thing is defective 

Good faith is always presumed. Onus probandi is on him who alleges bad faith. (Art. 527)



Bad faith is personal & intransmissible. Hence, an heir does not suffer the consequences of bad faith of his deceased father / mother (Art. 534)

HOW POSSESSION IS ACQUIRED: (1) by material occupation of a thing or the exercise of a right, including constructive possession, (2) by the fact that it is subject to the action of our will, e.g. possession by traditio simbolica or traditio longa manu; or (3) by proper acts and legal formalities established for acquiring such right, e.g. contract, donation, 51 succession (Art. 531) 

CANNOT BE ACQUIRED BY: force or intimidation as long as there is a possessor who objects thereto (Art. 536)



W HO CAN ACQUIRE POSSESSION: (1) by the same person who is to enjoy it; (2) legal representative or agent; any person without authority, provided his action is subsequently ratified. (Art. 532)



LAWFUL POSSESSION IS NOT AFFECTED BY ACTS THAT ARE: (1) merely tolerated; (2) clandestine; & (3) violent. (Art. 547)

52

or (3)



These acts do not interrupt the running of the prescriptive period for acquisitive prescription in favor of the lawful possessor nor affect his entitlement to the fruits.



In case of possession by mere tolerance: right to eject is imprescriptible, 54 filed within 1 year from date of demand to vacate

53

provided the ejectment case is



ORDER OF PREFERENCE IN CASE OF CONFLICTING POSSESSION: (1) present possessor; (2) one longer in possession; (3) one who presents a title; (4) judicial determination [Art. 538]



DISPUTABLE PRESUMPTIONS IN FAVOR OF POSSESSOR: 1. 2.

55

Good Faith 56 Continued possession in the same character in which it was acquired

Rosales vs. Castelltort, GR 157044, 10/5/05 (relied on the survey made by geodetic engineer and the stone monuments placed by the engineer’s employees) 49 E.g. creditor did not know that antichresis of land covered by the Homestead Law is violative of such law (Kasilag v. Rodriguez, 69 Phil. 217). 50 Firme vs. Bukal Enterprises, GR 146608, 10/23/03 (no perfected contract of sale yet construction was started); NHA vs. Baello, GR 200858, 8/7/13 (ejected from land by fully-armed military personnel during martial law); PNB vs. De Jesus, GR 149295, 9/2/03 (bank knew of the encroachment at the time of purchase). 51 In case inheritance is accepted, possession is deemed to start from the moment of death, without interruption (Art. 533). 52 Minor (including the insane, deaf mutes who cannot read & write, & those under civil interdiction) can acquire material possession of a thing, but not possession by civil acts, e.g. contracts. 53 Bishop v. CA, 208 SCRA 636. Reason: A person who occupies land of another at the latter’s tolerance is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. (Calubayan v. Pascual, 21 SCRA 146) 54 Catchuela v. Francisco, 98 SCRA 172. 55 Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof. (Art. 527) 48

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

57

3.

Possession during the intermediate period

4.

Possession without interruption upon recovery of possession unjustly lost

5.

Just title in favor of a possessor in the concept of owner

58

59

EFFECTS OF POSSESSION 1.

RESPECT & PROTECTION 

2.

3.

Every possessor has a right to be respected in his possession and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws & the Rules of Court. (Art. 539)

FRUITS 

A possessor in good faith is entitled to the fruits received before his possession is legally interrupted. (Art. 544) Should there be any natural or industrial fruits at the time good faith ceases, the possessor shall have a share in the net harvest in proportion to his time of possession. (Art. 545)



A possessor in bad faith is not entitled to the fruits of the property. He shall reimburse the legitimate possessor of the fruits he received or the fruits which the legitimate possessor could have received. (Art. 549)

RULES ON REIMBURSEMENT OF EXPENSES (Arts. 546-549) KINDS OF EXPENSE Necessary Useful

For pure luxury or mere pleasure

4.

POSSESSOR IN GOOD FAITH

POSSESSOR IN BAD FAITH

- entitled to reimbursement with right of retention - entitled to reimbursement with right of retention - may remove the improvement if it will not 60 damage the principal thing, unless the lawful possessor opts to appropriate the thing with payment of indemnity - not entitled to reimbursement, but he may remove the embellishment if it will not damage the principal thing (in case the lawful possessor does not prefer to appropriate it) - if lawful possessor opts to appropriate the embellishment, he will be reimbursed the amount expended

- entitled to reimbursement without right of retention - not entitled to any reimbursement also cannot remove the improvement even if it will not damage the principal thing

- not entitled to reimbursement, but he may remove the embellishment if it will not damage the principal thing (in case the lawful possessor does not prefer to appropriate it) - if lawful possessor opts to appropriate the embellishment, he will be reimbursed the value thereof at the time the lawful possessor enters into the possession

IMPROVEMENTS CAUSED BY NATURE OR TIME (ART. 551) 

belongs to the lawful possessor or owner

It is presumed that possession continues to be enjoyed in the same character in which it was acquired, until the contrary is proved. (Art. 529) A present possessor, who shows his possession at some previous time, is presumed to have held possession also during the intermediate period, in the absence of proof to the contrary. (Art. 554) 58 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) 59 A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it. (Art. 541) However, for purposes of prescription, just title must be proved (Art. 1131) 60 Note: does not refer to natural damage resulting from separation of accessory from principal, but damage or injury that reduces the value of the thing. 56 57

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5.



DETERIORATION OR LOSS (Art. 552) 

Possessor in good faith - not liable, unless he acted with fraudulent intent or negligence, after judicial summons



Possessor in bad faith – liable in every case, even if caused by fortuitous event

HOW POSSESSION IS LOST: (Art. 555) 1.

Abandonment

2.

Assignment to another

3.

Destruction or total loss or the thing goes out of commerce

4.

Possession by another  

5. 

De facto possession of land is lost after 1 year if no ejectment suit is filed. De jure possession of land is lost after 10 years if no accion publiciana is filed. After 10 years, accion reivindicatoria may still be filed, unless acquisitive prescription has set in.

Recovery of the thing by the lawful owner

RULE ON MOVABLES 1. Possession of movables acquired in good faith is equivalent to title. (Art. 559) 

Requisites: (a) possession should be in good faith, (b) the former owner voluntarily parted with the possession of the thing, and (c) possession is in the concept of owner

2. One who lost any movable or has been unlawfully deprived thereof may recover it from the person in possession 61 st of the same. (Art. 559, 1 para.) 

However, the owner who lost a movable cannot recover the same, if the possessor thereof: (a) has nd acquired it in good faith at a public sale, unless he reimburses the price paid therefor (Art. 559, 2 par.), (b) purchased it in a merchant’s store, fairs or markets (Art. 1505), (c) purchased it in good faith from one who has voidable title thereto, which has not been annulled at the time of sale, or (d) has become the owner of the thing through acquisitive prescription.



Movable can no longer be recovered if in the hands of a buyer in good faith.

62

VII. USUFRUCT 

DEFINITION: The right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. (Art. 562)



ESSENTIAL CHARACTERISTICS: (1) real right; (2) temporary in nature or duration; and (3) with the purpose of enjoying the benefits of the object as a consequence of normal use or exploitation



OBJECT OF USUFRUCT: all property, including consumables (Art. 574) and transmissible rights (Art. 564)



HOW CONSTITUTED: (1) law,



KINDS, according to: (1) cause or origin - legal, voluntary, mixed; (2) extent - total, partial; (3) number of persons simple, multiple [simultaneous, successive]; (4) presence of terms or conditions - pure, conditional, with a term; (5) 64 kind of object involved - rights, things [normal, abnormal ]



RIGHTS OF USUFRUCTUARY:

63

(2) acts inter vivos or mortis causa, and (3) prescription (Art. 563)

No unlawful deprivation of object of contract of sale, if the purchase price was paid by a bouncing check. (EDCA v. Santos, 184 SCRA 614; Chua Hai vs. Kapunan, 104 Phil. 110) 62 Edu v. Gomez, 129 SCRA 603. 63 E.g. Art. 226, Family Code (parents as usufructuaries of minor children’s property). 64 Refers to usufruct of consumable things (Art. 574). 61

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1.

Entitled to all the fruits of the property in usufruct, including share in any hidden treasure found therein (Art. 566)

2.

Lease the lands or tenements given in usufruct (Art. 568)

3.

Alienate his right of usufruct

4.

Enjoy any increase which the thing in usufruct may acquire through accession, servitudes established in its favor and all inherent benefits in general (Art. 571)

5.

Use the thing in accordance with the purpose for which it was intended, without being liable for its deterioration through ordinary wear and tear. (Art. 573)

6.

Right to make useful improvements or expenses for mere pleasure, provided he does not alter the thing’s form or substance. He has no right to be indemnified for the improvements. However, he may remove them if no damage will be done to the thing in usufruct. (Art. 579)

7.

Right to set-off the improvements he may have made on the property against any damage to the same. (Art. 580)

8.

Right not to be prejudiced by any works or improvements made by the owner (Art. 595)

9.

Right to demand of the owner the increase in value which the property may have acquired at the termination of the usufruct, if he made extraordinary repairs indispensable for the preservation of the thing. (Art. 594)

10. In case of specific types of usufruct:



a.

Over things that deteriorate – right not to be responsible for ordinary wear & tear (Art. 573)

b.

Over consumables – right to consume them and return only their value or equivalent things of the same quality & quantity (Art. 574)

c.

Over an action to recover real property, real right or movable property – right to oblige the owner to give him the authority for this purpose and to furnish him with whatever proof the owner may have (Art. 578)

OBLIGATIONS OF USUFRUCTUARY: 1.

Make an inventory, except when no one will be injured thereby (Arts. 583 & 585) 

2.

Failure to make an inventory will not prevent the usufructuary from enjoying the property. But it will give rise to a presumption that the property was received in good condition.

Give security, except: (1) when no one will be injured thereby, (2) in case of donor who has reserved the usufruct of the property donated, and (3) with respect to parents who are usufructuaries of their children’s nd property, unless such parents contract a 2 marriage. (Arts. 583-585) 

Failure to give security, in case usufructuary is bound to give it, will give the owner certain rights, such as he can demand that the immovables be placed under administration and the movables be sold and their proceeds invested in safe securities.



Caucion juratoria – promise under oath given as security by a usufructuary to be able to use certain things that are necessary for living and shelter, such as house, furniture & tools for an industry or vocation (Art. 587)

3.

Make ordinary repairs (Art. 592)

4.

Notify the owner when the need for extraordinary repairs is urgent (Art. 593)

5.

If he alienates or leases his right of usufruct, he shall answer for any damage which the things in usufruct may suffer through the fault or negligence of the person who substituted him (Art. 590).

6.

Pay legal interest on amount expended by owner for extraordinary repairs, for the time that the usufruct lasts (Art. 594)

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7.

Pay annual charges and taxes and those considered as a lien on the fruits (Art. 596)

8.

Pay debts of owner, when imposed by contract, or the usufruct is made in fraud of creditors (Arts. 598, 758, 759)(Art. 600)

9.

Notify owner of any act of 3 persons, of which he may have knowledge, that may be prejudicial to the rights of ownership (Art. 601)

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10. Return the thing, upon termination of the usufruct. 

HOW EXTINGUISHED: (1) death of the usufructuary; (2) expiration of period or fulfillment of any resolutory condition; (3) merger; (4) renunciation of the usufruct; (5) total loss of the thing in usufruct; (6) termination of the right of the person constituting the usufruct; and (7) prescription [Art. 603] 

Usufruct is not extinguished by the bad use of the thing in usufruct. The owner may demand that the thing be delivered to him. He is then bound to pay annually the usufructuary the proceeds of the thing, after deducting the expenses and his compensation for administering the property. (Art. 610) VIII. EASEMENTS



DEFINITION: It is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. (Art. 613) 

Dominant estate – the immovable in favor of which the easement is established



Servient estate – the immovable subject to easement



CHARACTERISTICS: (1) real right, (2) can be imposed only on the property of another, (3) can be established only on immovables by nature; (4) can exist only between neighboring tenements, (5) produces a limitation on ownership, but ownership of servient estate is unimpaired, (6) inseparable from the servient estate [Art. 617], and (7) indivisible [Art. 618].



KINDS: (1) Real or Personal [Arts. 613-4], (2) Continuous or Discontinuous [Art. 615], (3) Apparent or Non67 68 69 70 apparent [Art. 615], (4) Positive or Negative [Art. 616], (5) Legal or Voluntary [Art. 619]

65



66

The most important classifications are those according to the manner of exercise (continuous or discontinuous) and indication of existence (apparent or non-apparent)

Manner of Exercise Continuous Easement – those the use of which is or may be incessant without the intervention of any act of man Discontinuous Easement – those which are used at intervals and depend upon the acts of man 

Indication of Existence Apparent Easement – those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same Non-apparent Easement – those which show no external indication of their existence

MODES OF ACQUISITION: 1.

Title [Art. 622] 

All kinds of easements, whether continuous or discontinuous, apparent or non-apparent, can be acquired by title.

An encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. (Art. 613) Easement established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong. (Art. 614) 67 Easement which requires the owner of the servient estate to allow something to be done or to do it himself. (Art. 616) 68 Easement which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. (Art. 616) 69 Easement established by law. (Art. 619) 70 Easement established by the will of the owners. (Art. 619) 65 66

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2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 16 of 20



Note: 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 of 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. 

2.

Example: In Tañedo vs. Bernad (165 SCRA 86), in the absence of a statement abolishing or extinguishing the easement of drainage, the use of the septic tank located on the servient estate is continued by operation of law and the new owners of the servient estate cannot impair the use of the easement.

Prescription [Art. 620] 

Only continuous and apparent easements can be acquired by prescription, e.g. easement of aqueduct (Art. 645) or easement of light and view (Art. 670).



The easement of right of way cannot be acquired by prescription because it is a discontinuous 72 easement.



Prescriptive period: 10 years

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

RIGHTS & OBLIGATIONS OF OWNERS OF DOMINANT ESTATE: (1) entitled to all the rights necessary for the use of the easement [Art. 625]; (2) may make any works necessary for the use and preservation of the servitude [Art. 627]; (3) cannot use the easement except for the benefit of the immovable originally contemplated [Art. 626]; (4) cannot exercise the easement in any other manner than that previously established [Art. 626]



RIGHTS & OBLIGATIONS OF OWNERS OF SERVIENT ESTATE: (1) may use the portion of his estate subject to easement in any manner as owner thereof, so long as it does not affect the exercise of the easement [Art. 630); and (2) cannot impair, in any manner whatsoever, the use of the servitude [Art. 629]



EXTINGUISHMENT: (1) Merger, (2) Non-user for 10 years, (3) estate fell into such a condition that the estate cannot be used, (4) expiration of term or fulfillment of the condition, (5) renunciation, (6) redemption



LEGAL VS. VOLUNTARY EASEMENTS: (1) Legal easements are established by law, while voluntary easements are established by will of the owners [Art. 619]. (2) Legal easements have for their purpose either public use or the interest of private persons [Art.634], while voluntary easements have for their purpose the interest of the parties to the agreement establishing the easement.

3.

T HE DIFFERENT KINDS OF LEGAL EASEMENTS 1.

RELATING TO WATERS a.

NATURAL DRAINAGE OF LANDS – lower estates are obliged to receive the waters which naturally flow from the higher estates (Art. 637)

b.

ZONE FOR NAVIGATION, FLOATAGE, FISHING, SALVAGE – a zone of 3 meters in width throughout the entire length of the banks of rivers and streams for use by the public (Art. 638) and/or an easement of towpath

c.

ABUTMENT OF DAM – whenever the person who is to build the dam is not the owner of the banks or lands which must support it (Art. 639)

d.

DRAWING WATER & W ATERING ANIMALS – imposed in favor of a town or village, includes the obligation to allow passage of persons and animals (Art. 640)

e.

AQUEDUCT – right to make the water flow through intervening estates (Art. 642)

f.

STOP LOCK OR SLUICE GATE – constructed on the bed of the stream with support on the lands adjoining the stream owned by other persons (Art. 647)

Liwag vs. Happy Glen Loop Homeowners Association, GR 189755, 7/4/12 (easement of water facility, consisting of deepwell and overhead water tank, used by the subdivision as sole source of water for more than 30 years) 72 Ronquillo v. Roco, 103 Phil. 84; Bogo-Medellin vs. CA, GR 124699, 7/31/03 (railroad track) 71

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2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 17 of 20

2.

RIGHT OF WAY 

Requisites: (1) dominant estate is surrounded by other immovables and has no adequate outlet to the highway, (2) isolation is not due to the acts of the owner of the dominant estate, (3) the right of way claimed is at the point least prejudicial to the servient estate and insofar as consistent with this rule, the 73 distance from the dominant estate to a public highway may be the shortest, (4) payment of proper indemnity [Arts. 649-650]



The width may be changed from time to time according to the needs of the dominant estate, subject to 74 payment of additional indemnity (Art. 651)

3.

PARTY WALL – refers to walls, fences, hedges, ditches and drains shared by adjoining estates. Every part-owner thereof may use it in proportion to his interest in the co-ownership (Art. 666). A part-owner cannot open through the party wall any window, without the consent of all the others (Art. 667).

4.

LIGHT & VIEW – allows the making of openings in walls or preventing the neighbors from building higher than one’s windows. The Civil Code provides for the required distances for windows, depending on whether they afford a direct (2 meters) or oblique (60 centimeters) view. Non-observance of the required distances will not give rise to prescription (Art. 670). Prescription will only start when the owner formally prohibits the adjoining owner from blocking his property’s light and view.

5.

DRAINAGE OF BUILDINGS – to give outlet to the rain water collected on the estate via drainage at the point of the contiguous lands and tenements (Art. 676)

6.

INTERMEDIATE DISTANCES – no constructions or plantings can be done without observing the distances provided by law, e.g. if tall trees are planted near the dividing line of two estates, the distance of at least 2 meters from the boundary line should be observed; if shrubs, at least 50 centimeters (Art. 679)

7.

LATERAL & 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) IX. NUISANCE



DEFINITION: Any act, omission, establishment, condition of property, or anything else, which: (1) injures or endangers the health or safety of others; (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 streets, or any body of water; or (5) hinders or impairs the use of property. (Art. 694)



KINDS: (1) public, private, or (2) nuisance per se, nuisance per accidens



REMEDIES:

75

1.

Public nuisance: (1) Prosecution, (2) Civil Action, (3) Abatement, without judicial proceedings [Art. 699]

2.

Private nuisance: (1) Civil Action, (2) Abatement, without judicial proceedings [Art. 705] 

Whether, private or public, only nuisance per se can be summarily abated.



Any private person may abate a private nuisance or even a public nuisance that is specially injurious to him, so long as the following requisites are complied with: (1) demand is first made upon the owner or possessor of the property, (2) such demand has been rejected, (3) abatement is approved by the district health officer and executed with the assistance of the local police, and (4) the value of the destruction does not exceed P3,000 (Arts. 704, 706). X. MODES OF ACQUIRING OWNERSHIP



CONCEPT: Mode is a legal means by which dominion or ownership is created, transferred or destroyed. It is the actual process of acquisition or transfer of ownership or real right, in contrast to Title, which is the juridical justification for the acquisition or transfer of ownership or real right (e.g. title: contract of sale, mode: delivery)

Quimen v. CA, 257 SCRA 163. Encarnacion v. CA, 195 SCRA 74. 75 AC Enterprises v. Frabelle, 506 SCRA 625 (noise from air-conditioning units); Rana vs. Wong, GR 192861, 6/30/14 (elevated and cemented portion of subdivision street) 73 74

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2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 18 of 20



ORIGINAL MODES: Occupation (of res nullius), Intellectual Creation



DERIVATIVE MODES: Law (e.g. in case of accession), Donation, Succession, Tradition, Prescription

XI. DONATION 

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



KINDS: (1) pure / simple, remuneratory, conditional / onerous, modal, (2) inter vivos, mortis causa

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 







W HO 735)

Illegal and impossible conditions shall be considered as not imposed. (Art. 727)

MAY GIVE DONATIONS:

All persons who may contract and dispose of their property may make a donation (Art.



Hence, minors and incapacitated persons (e.g. insane, deaf-mutes who do not know how to read and write, those under civil interdiction) cannot make donations.



Guardians / trustees cannot donate the property entrusted to them (Art. 736)

W HO MAY RECEIVE DONATIONS: All those who are not specially disqualified by law (Art. 738) 

Minors or incapacitated persons may become donees but acceptance shall be done through their parents or legal representatives (Art. 741)



Conceived or unborn children may become donees, provided they are born alive (Art. 41); acceptance to be made by their parents or legal representatives (Art. 742)

PERSONS DISQUALIFIED BY LAW TO MAKE OR RECEIVE DONATIONS: 

Between spouses during marriage, except moderate gifts on occasion of any family rejoicing (Art. 87, Family Code)



Between persons who were guilty of adultery or concubinage, at the time donation (Art. 739)



Between persons found guilty of the same criminal offense, in consideration thereof (Art. 739).



A public officer or his/her spouse, descendants and ascendants cannot receive donation by reason of his/her office.



Those who are incapacitated to succeed by reason of possibility of undue influence (Art. 740, in rel. to Art. 1027, paras. 1-3, 5) cannot also receive donations.

FORMALITIES VALUE P5,000 & below Exceeds P5,000

MOVABLES (Art. 748) May be made orally, provided there is simultaneous delivery The donation & acceptance must be made in writing

IMMOVABLES (Art. 749) The donation must be made in a public document. The acceptance may be made in the same deed or in a separate public document. If acceptance is made in a separate 77 instrument, the donor shall be notified thereof in an authentic form, and this step

Ganuelas vs. Cawed, GR 123968, 4/24/03. Arangote vs. Spouses Maglunob, GR 178906, 2/18/09 (there must be proof that formal notice of acceptance was received by donor and this must be noted in deed of donation and the acceptance instrument). 76 77

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2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 19 of 20

shall be noted in both instruments.

6.





Donation is perfected from the moment the donor knows of the acceptance by the donee (Art. 734)



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

SCOPE: 

The donation may comprehend all the present property of the donor, provided he reserves sufficient means for the support of himself and those entitled to be supported by him. Without such reservation, the donation shall be reduced on petition of any person affected (i.e., the compulsory heirs). (Art. 750)



No person may give or receive, by way of donation, more than what he may give or receive by will (Art. 752). Inofficious donations shall be reduced insofar as it exceeds the portion that may be freely disposed of by will (Art. 761).

REVOCATION / REDUCTION GROUNDS

PRESCRIPTIVE PERIOD

Birth, appearance or adoption of a child (Art. 760)

Failure of donee to comply with any of the conditions which the donor imposed on him (Art. 764)

Ingratitude of the donee in the following cases: 1. Commission of offense against the person, the honor or the property of the donor, or of his spouse or children under his parental authority; 2. Imputation to the donor of any criminal offense or any act involving moral turpitude, even though he should prove it, unless the crime has been committed against the donee himself, his/her spouse or children under his/her authority; 3. Refusal to support the donor when the donee is legally or morally bound to do so. (Art. 765)

Donation may be revoked or reduced insofar as it impairs the legitime of the child, within 4 years from (1) the birth, recognition or legitimation of the child, (2) the time information was received regarding the existence of the child believed dead, or (3) time of adoption (Art. 763) Donation may be revoked within 4 years from noncompliance with the condition (Art. 764) However, if the donation is considered an onerous donation, such would be governed by the law on contracts (Art. 733), and the prescriptive period applicable to it would be that applicable to onerous 78 contracts, which is 10 years. Within 1 year from the time the donor had knowledge of the fact & it was possible for him to bring the action

oOo God Bless and Good Luck.

78

De Luna v. Abrigo, 181 SCRA 150. TM

2016 Notes on Property by Atty. Fretti G. Ganchoon forJurists Bar Review Center . All rights reserved 2016 by Jurists Review Center Inc. Unathorized reproduction, use or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaitns with the Office of the Bar Confidant, Supreme Court. Page 20 of 20