Mickey Ingles (Ateneo) - Property Reviewer

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PROPERTY NOTES

PRELIMINARY PROVISIONS Art 414 All things which are or may be the object of appropriation are considered either: 1. Immovable or real property; or 2. Movable or personal property. What’s a thing?  any object that exists and is capable of satisfying some human needs  includes both objects that are already possessed or owned and those that are susceptible of appropriation  more comprehensive term (than property), as there are things which are not susceptible of appropriation and they are not included in the concept of property What’s property?  refers to any thing which is already the object of appropriation or found in the possession of man Requisites of property 1. Utility  Capacity to satisfy some human wants 2. Substantivity  Quality of having existence apart from any other thing 3. Appropriability  Susceptibility of being possessed by man  Res communes or common things are not capable of appropriation in their entirety, although they may be appropriated under certain conditions in a limited way, and thereby become property in law o Electricity, oxygen, etc  Res nullius or a thing may have no owner because it has not yet been appropriated, or because it has been lost or abandoned by the owner. it constitutes property as long as it is susceptible of being possessed for the use of man o Wild animals, hidden treasure  Things cannot be considered as property when they are not susceptible of appropriation because of o legal impossibility (you can’t sell your body while you’re alive, at least not legally) or o physical impossibility (you can’t own the moon, at least not yet)

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Rights as property  “property” is sometimes used to denote the thing with respect to which legal relations between persons exist – the res over which rights (particularly ownership) may be exercised – and sometimes to the rights with respect to the thing  either real or property What is a real right?  Right or interest belong to a person over a specific thing  Without a definite passive subject against whom such right may be personally enforced  Jus in re  The res of a real right may be o Personal property (as in pledge and chattel mortgage) o Real property (easement, real mortgage) o Either personal or real (as in ownership, possession, usufruct)  If the res of a real right is real property, the right itself is real property; otherwise it is personal property Classification of real rights based upon dominion 1. Domino pleno – powers to enjoy and to dispose are united a. Dominion, civil possession, hereditary right 2. Domino menos pleno – powers to enjoy and dispose are separated a. Surface right, usufruct 3. Domino limitado – powers to enjoy and to dispose, though united, are limited a. By a guaranty (mortgage, pledge) b. By a charge (easement) c. By a privilege (pre-emption, redemption) What is a personal right?  Right or power of a person  To demand from another as a definite subject  The fulfillment of the latter’s obligation.  Jus in personam or jus ad rem  Personal right, or right of obligation, has the following elements: 1. Active subject (person in whom the right resides) 2. Passive subject (person against whom the right is available)

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Object or prestation or the conduct (to give, to do, or not to do) Juridical or legal tie which binds the parties to the obligation

Real Right Definite active subject who has a right against all persons generally as an indefinite passive subject Object is generally a corporeal thing Created by ‘mode’ and ‘title’ Extinguished by the loss or destruction of the thing which it is exercised Directed against the whole world (actio in rem against 3rd persons)

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Personal Right Definite active subject and a definite passive subject Object always an incorporeal thing Created by ‘title’

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Personal right survives the subject matter

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Directed against a particular person (actio in personam)

What’s the importance of the classification into movables or immovables?  In private international law, general rule is that immovables are governed by the law of the country in which they are located, whereas movables are governed by the personal law of the owner which in cases is the law of his nationality or his domicile  In criminal law, usurpation of property can take place only with real property. On the other hand, robbery and theft can be committed only against personal property  In procedural law, actions concerning real property are brought in the RTC where the property is located, whereas actions involving personal property are brought in the court where either the defendant or plaintiff resides. o Forcible entry and unlawful detainer for REAL property o Replevin or manual delivery for PERSONAL  In contracts, only real property can be the subject matter of real mortgage and antichresis, while only personal property can be the subject matter of mutuum, voluntary deposit, pledge  In order that the donation of an immovable may be valid, it must be made in a public instrument. For movables, may be oral or in writing (if more than P5000, need only to be in a private instrument)

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For prescription (4 and 8 years for movables; 10 and 30 years for immovables)  Transactions involving real property must be recorded in the Registry of property to affect 3rd parties. Not required with personal property, except for chattel mortgage cases. Art 415 The following are immovable property: 1. Land, buildings, roads, and constructions of all kinds adhered to the soil; 2. Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable; 3. Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object; 4. Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements; 5. Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on ina building or on a piece of land, and which tend directly to meet the needs of said industry or works; 6. Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in cases their owner has placed htem or preserves them with the intention to have them permanently attached to the land, and forming a 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. Classes of immovable or real property (NIDA) 1. By nature (cannot be carried from place to place) 2. By incorporation (attached to an immovable in a fixed manner to be an integral part thereof) 3. By destination (placed in an immovable for the utility it gives)

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PROPERTY NOTES

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By analogy (by express provision of law because it is regarded as united to the immovable property)

Lands, buildings, roads and constructions of all kinds  Must adhere to the soil  Buildings must be more or less of a permanent structure independent of and regardless of the ownership of the land on which it is erected since the law makes no distinction (so possible to mortgage building even if in the land of another, since it’s separate from the land  Roads, whether public or private, are immovable  Real property treated by the parties as personal property o A building is by itself an immovable property irrespective of whether or not said structure and the land on which it is adhere to belong to the same owner o A valid real estate mortgate can be constituted only on the building erected on the land belonging to another o The parties to a contract of chattel mortgage may, by agreement, treat as personal property that which by nature would be real property (estopped! So they can be subject to a writ of replevin between parties)  However, the chattel mortgage is not binding on third persons. Trees, plants and growing fruits  Immovable while they are: o Attached to the land, or o Form an integral part of an immovable  Once cut or uprooted, they become movable  Growing crops or fruits, or ungathered products or fruits, may be treated as personal property for the purposes of attachment, execution and the chattel mortgage law (Sibal v Valdez)  When growing crops are sold and before they are even harvested, the transaction is considered as sale of movables because it is a given that they are to be gathered or harvested for delivery Everything attached to an immovable in a fixed manner  Attachment must be such that o It cannot be separated from the immovable o Without breaking the material, or

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o Deterioration of the object If temporarily separated, will still be regarded as immovable if there is an intent to put them back (but there are different opinions to this) Intent to attach permanently is essential – objects placed by humans with intention to permanent annexation lose their identity as movables

Statues, reliefs, paintings, or other objects for use or ornamentation  Immovable when: o Placed on the immovable by the owner of the latter, and o In such a manner that it reveals the intention to attach them permanently to the tenements  Not necessarily by him personally, can be by his agent  If placed by a person not the owner like a lessee, the object will not attain the character of immovable unless such person acts as an agent of the owner Machinery, receptacles, instruments, or implements for an industry or works  Immovable only when: o Placed by the owner of the tenement or his agent o Industry or works must be carried on in a building or on a piece of land o Machinery, etc must tend directly to meet the needs of the said industry or works  Machinery which is movable in its nature only becomes immobilized when placed in plant by the owner of the property or plant, but not when so placed by a tenant, a usufructuary, or any person having only a temporary right (Davao Saw Mill v Castillo) o Exception (becomes immovable): 1. Such person acted as the agent of the owner, or 2. Lease agreement states that the machines will pass over to the lessor after the expiration of the lease agreement (US Valdez case)  Must be essential and be principal elements of an industry or works to the business, not merely incidental to business (Mindanao Bus Company v City Assessor) o Cash registers, typewriters for hotels, restaurants, theaters are merely incidental, these businesses can continue on without them

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PROPERTY NOTES

Machineries of breweries used in the manufacture of liquor, though movable by nature, are immobilized because they are essential to said industries For purposes of taxation, it doesn’t matter who placed the machines – the owner or mere lessee, as long as it is essential and principal elements of an industry. The term ‘real property’ may include things which should generally as personal property. It is a familiar phenomenon to see things classified as real property for purposes of taxation which on general principle might be considered personal property. (Meralco v Central Board of Assessment Appeals – in this case, the storage tanks were placed by Meralco, who wasn’t the owner of the land, but it was still considered immovable) Attachment or incorporation to immovable not essential, since they become immovable because of destination, what is essential is their utility o

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Intended by their nature and object To remain at a fixed place on A river, lake or coasts

Contracts for public works and servitudes and other real rights over immovables  Where the res of a real right is real property, the right itself is real property. So ownership is real property if the thing owned is immovable o Loan is real property by analogy if secured by a real estate mortgage  Where it is personal property, the right itself is personal property o Exception: case of contracts for public works which are considered real property 

Animal houses, pigeon houses, beehives, fish ponds or breeding places of similar nature  Considered immovable: o In case their owner has placed them or preserves them o With the intention to have them permanently attached to the land o And forming a permanent part of it. o The animals in these places are included.  Must permanently form part of the land and so intended by the owner

CHAPTER TWO: MOVABLE PROPERTY

Fertilizers actually used on a piece of land  Immovable when o Actually used on a piece of land  Fertilizers kept in a barn are not immovable

Art 417 The following are also considered as personal property: 1. Obligations and actions which have for their object movables or demandable sums; 2. Shares of stock of agricultural, commercial and industrial entities, although they may have real estate.

Mines, quarries and slag dumps  Immovable when o While the matter thereof forms part of the bed o Meaning, the matter thereof remains unsevered from the soil  Waters, either running or stagnant, are classified as immovables Docks and structures, though floating  Immovable if

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Art 416 The following things are deemed to be personal property: 1. Those movables susceptible of appropriation which are not included in the preceding article; 2. Real property which by any special provision of law is considered as personalty; 3. Forces of nature which are brought under control by science; and 4. In general, all things which can be transported from place to place without impairment of the real property to which they are fixed.

Classes of movable or personal property 1. Property not included in Art 415 2. Considered personal property by special provision of law 3. Forces of nature brought under control by science 4. In general, all movable things a. Whether the property can be transported or carried from place to place;

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PROPERTY NOTES

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Whether such change of lacation can be made without injuring the immovable to which the object may be attached, and c. Whether the object does not fall within any one of the cases in Art 415 Obligations and actions (personal rights, they having a definite passive subject) Shares of stock Other incorporeal personal property a. Intellectual property such as copyrights, patents, etc

Art 418 Movable property is either consumable or non-consumable. To the first class belong those movables which cannot be used in a manner appropriate to their nature without their being consumed; to the second class belong all the others. Importance of classification:  Consumable goods cannot be the subject matter of a commodatum (unless for mere exhibition)  In a mutuum, the subject matter is money or other consumable thing Consumable  Depends on nature of thing itself  Can’t be used in a manner appropriate to their nature without being consumed Fungible  Depends on the intention or purpose of the parties  Can be substitute by another thing of the same kind, quantity and quality 

Money, while characterized as a movable, is generic and fungible. (BPI v Franco)

CHAPTER THREE: PROPERTY IN RELATION TO WHOM IT BELONGS Art 419 Property is either of public dominion or of private ownership Property is either of

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1. 2.

Public dominion or property owned by the State (or its subdivisions) in its public or sovereign capacity and intended for public use and not for the use of the State as a juridical person Private ownership or property owned by: a. The state in its private capacity; known as patrimonial property b. Private persons, either individually or collectively

Property is presumed to be State property in the absence of any showing to the contrary. (Regalian Doctrine) What’s dominion? 1. Not owned by the State but simply under its jurisdiction and administration for the collective enjoyment of all the people of the State 2. Purpose is to serve the citizens, not the State as juridical person 3. Rises from the fact that the State is the juridical representative of the social group Art 420 The following things are property of public dominion: 1. Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the States, banks shores, roadsteads and others of similar character 2. Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth Three kinds of public dominion property 1. Intended for public use  Can be used by everybody 2. Not for public use but intended for some specific public service  Only be used by duly authorized people, such as government buildings, etc 3. Intended for the development of national wealth, even if not employed for public use or service  Minerals, coal, oil, forests Charging of fees to the public does not affect the public character of the road or its character as property for public use. What are other property of similar character to those intended for public use? 1. Public streams, river channels, river beds, etc 2. Accretions to the shores of the sea

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PROPERTY NOTES

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Submerged lands or lands reclaimed from the sea by the government  Mere reclamation of certain foreshore land does not convert these inalienable natural resources of the state into alienable or disposable lands of the public domain.  There must be a law or proclamation officially classifying them such. Lands that disappeared into the sea Canals constructed on private lands of private ownership but the owner loses his proprietary right over said canal through prescription by allowing the public to use it for transportation Foreshore lands when the sea moved toward an estate and the tide invade it, the invaded property becomes foreshore and passes to the public realm Foreshore land is the strip of land that lies between the high and low water marks Lot on which stairways were built for the use of the people as passageway to the highway Roads refer to those constructed by the national government Canals constructed by private persons over private lands are of private ownership Roadstead is a place less sheltered or enclosed than a harbor where ships may ride at anchor

Properties of public dominion are outside of the commerce of man. Again, their purpose is to serve the citizens. They can not be the object of appropriation either by the State or private persons. So… 1. Cannot be sold, leased or be the subject of contracts 2. Cannot be acquired by prescription, not even by municipalities as against the State 3. Cannot be encumbered, attached, or be subject to levy and sold at public auction. 4. Cannot be burdened with easements 5. Cannot be registered under the land registration law and be the subject of a Torrens title  Inclusion of public dominion property does not confer title on the registrant

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Public lands v Government lands Public lands  Lands of the public domain  Does not include all lands of government ownership but only so much of said lands as are thrown open to private appropriation and settlement by homestead law Government lands  Broader term  Includes not only public lands, but also… 1. other lands of the government already reserved or devoted to public use, 2. or subject to private rights, 3. and patrimonial lands Alienation of public agricultural land  Unless pubic land is shown to have been reclassified and alienated by the State to a private person, it remains part of the inalienable public domain  All other lands are presumed to belong to the State Art 421 All other property of the State, which is not of the character stated in the preceding article, is patrimonial property. Patrimonial property  Property of the State owned by it in its private or proprietary character  Not for public use, service or development of the national wealth  May be acquired by private individuals or juridical persons through prescription; can be the object of an ordinary contract Art 422 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. Property of the National Government  Not self-executing  There must be a formal declaration by the executive (exercised by the President) or possibly legislative department that the property is no

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PROPERTY NOTES

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longer needed for public use or for public service before the same can be classified as patrimonial property A positive act declaring land as alienable and disposable is required 1. Presidential proclamation or executive order 2. Administrative action 3. Investigation reports of Bureau of Lands investigators 4. Legislative act or a statute (Sec of DENR v Yap) Classification of public lands is the exclusive prerogative of the Executive Department – courts have no authority (Sec of DENR v Yap) Abandonment cannot be inferred from non-use. (Roponggi case) Two requisites for judicial confirmation of imperfect or incomplete title, under CA 141 1. open, continuous, exclusive and notorious possession and occupation of the subject land by himself or through his predecessors-in-interest under a bona fide cliam of ownership since time immemorial or from June 12, 1945 2. classification of the land as alienable and disposable land of the public domain (Sec of DENR v Yap) Unclassified land? Considered as forest land (Sec of DENR v Yap)

Property of Political Subdivisions  For provinces, cities and municipalities, the conversion must be authorized by law  Municipal corporation has discretionary power to withdraw a street from public use and sell it. (Cebu Oxygen v Becilles) Art 423 The property of provinces, cities, and municipalities is divided into property for public use and patrimonial property. Art 424 Property for public use, in the provinces, cities, and municipalities, consist of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities or municipalities. All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws. Property of Political Subdivisions

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Note that the articles speak of property for public use, indicating that properties for public service are patrimonial. (ambulance of the local government) Political subdivisions cannot register as their own any part of the public domain, unless it is first shown that a grant thereof has been made or possession has been enjoyed during the period necessary to establish a presumption of ownership. If the property is owned by the municipality in its public and governmental capacity, the property is public and Congress has absolute control over it. If it is owned in its private or proprietary capacity, then it is patrimonial and Congress has no control over it. (page 63, de Leon)

Case doctrines:  The use of subdivision roads by the general public does not strip it of its private character.  Transfer of ownership from the subdivision owner-developer to the local government is not automatic but requires a positive act from the ownerdeveloper before the city or municipality can acquire dominion over the subdivision roads. Until and unless the roads are donated, ownership remains with the owner-developer. (Woodridge School, Inc v ARB Construction Co, Inc) Art 425 Property of private ownership, besides the patrimonial property of the State, provinces, cities, and municipalities, consists of all property belonging to private persons, either individually or collectively. Private property 1. Belonging to private persons, either individually or collectively 2. Belonging to the State and any of its subdivisions which are patrimonial in nature 

There is nothing that will prohibit churches from alienating things classified into ‘sacred, religious, and holy.’

Art 426 Whenever by provision of law, or an individual declaration, the expression “immovable things or property” or “movable things or property” is used, it shall be deemed to include, respectively, the things enumerated in Chapter 1 and Chapter 2.

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PROPERTY NOTES

Whenever the word “muebles” or “furniture,” is used alone, it shall not be deemed to include money, credits, commercial securities, stocks and bonds, jewelry, scientific or aristic collections, books, medals, arms, clothing, horses or carriages and their accessories, grains, liquids and merchandise, or other thing which do no have as their principal object the furnishing or ornamenting of a building, except where from the context of the law, or of the individual declaration, the contrary clearly appears.

TITLE II – OWNERSHIP CHAPTER ONE: OWNERSHIP IN GENERAL Art 427 Ownership may be exercise over things or rights Ownership is the…  Independent right of a person to the exclusive enjoyment and control of a thing  Including its disposition and recovery subject only to the restrictions or limitations established by law and the rights of others Beneficial Ownership  Ownership recognized by law and capable of being enforced in court  Right to enjoyment in one person, legal title is in another Naked Ownership  Enjoyment of all the benefits and privileges of ownership Ownership may be exercised over things or rights 1. Thing – usually refers to corporeal property 2. Rights – whether real or personal, res of rights may be corporeal or incorporeal Art 428 The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law. The owner has also a right of action against the holder and possessor of a thing in order to recover it. The seven jus-es 1. Possidendi

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2. 3. 4. 5. 6. 7.

Utendi Fruendi Accessionis Abutendi Disponendi Vindicandi

Right to possess or jus possidendi  right to hold a thing or enjoy a right (Art 523)  may be exercised in one’s own name or in that of another 1. Right to use not necessarily included  May be in the concept of an owner or a mere holder with the ownership pertaining to another  Right to possess does not always include the right to use 2. Judgment of ownership may not include possession  Person may be declared owner but he may not be entitled to possession which may be in the hands of another such as a tenant  But! This doctrine may be invoked only where the actual possessor has some rights which must be respected 3. Where claim to possession based on claim of ownership  Where the ownership of a property was decided in a judgment, the delivery of possession should be considered included in the decision where the defeated party’s claim to the possession is based on his claim of ownership 4. Duty of vendor to deliver possession of thing sold  Contract of sale, vendor bound not only to transfer ownership, but also deliver  Considered delivered only when vendee has control and possession Right to use and enjoy or jus utendi  necessarily includes the right to transform and the right to exclude any person from the enjoyment and disposal thereof  he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation (Art 429)  he may enclose or fence his property (Art 430)  limited because he cannot make use of such property in a manner to injure the rights of a third person

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Right to receive the fruits and accessories or jus fruendi and accessionis  ownership gives the right by accession to everything which is produced thereby (see art 440) Right to consume or jus abutendi  right of the owner to consume a thing by its use – the use that extinguishes Right to dispose or alienate or jus disponendi  either totally (sale or donation) or partially (pledge, mortgage, etc)  includes right not to dispose  duty of vendor to transfer ownership o vendor must be the owner or authorized to sell thing o sufficient that he be the owner at the time of the delivery of the thing sold  only the absolute owner can pledge or mortgage one’s property

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Both a principal remedy (regain possession) and a provisional remedy (allow the plaintiff to retain the thing wrongfully detained by another pendente lite) 2. Recovery of real property: Forcible entry and unlawful detainer (accion interdictal)  Forcible entry Requisites: i. Instituted by person deprived of possession ii. Unlawful deprivation of the possession of any land or building, by force, intimidation, threat, strategy or stealth iii. Filed within 1 year from date of actual entry (but for cases of stealth and strategy, from date of knowledge of actual knowledge) iv. At the MTC where property is located 

Right to recover possession and/or ownership or jus vindicandi  true owner must resort to judicial process for the recovery of the property  he cannot take the law into his own hands Actions available to recover possession and/or ownership 1.

Recovery of personal property: Remedy of Replevin or manual delivery of personal property Requisites (Rule 60, Rules of Court): Applicant must show by his own affidavit or that of some other person who personally knows the facts: i. That the applicant is the owner of the property claimed, particularly describing it, OR is entitled to the possession thereof ii. That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information and belief  Applicant has burden of proving his ownership or right of possession over the property in question

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Unlawful detainer Requisites: i. Instituted by landlord, vendor, vendee or other person against who the possession of any land or building is unlawfully withheld ii. Unlawful possession after the expiration or termination of the right to hold possession (by virtue of contract, etc) iii. Filed within 1 year from date of last demand to vacate iv. at the MTC where property is located For unlawful detainer, it is essential that the plaintiff’s supposed acts of tolerance must have been present right from the start of the possession which is later sought to be recovered (Valdez, jr v CA) Only issue involved in both is mere physical or material possession (possession de facto), not juridical or civil possession (possession de jure) Plaintiff need only to allege and prove prior possession de facto and undue deprivation thereof It’s a quieting process Summary in nature (to solve the problem quickly and to protect the rights of the possessor) Difference between the two is the time when possession became unlawful – forcible entry: time of entry; unlawful detainer: possession at first was legal, then became illegal

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If complaint fails to aver facts constitutive of forcible entry or unlawful detainer as when it does not state how entry was effected or how and when the dispossession started, the remedy should either be accion publiciana or an accion reinvindicatoria (Valdez, jr v CA) o Must be apparent in the face of the complaint (Sarmiento v CA) Jurisdictional facts – what does a plaintiff have to allege? o For unlawful detainer i. Plaintiff’s right over property (describing the property) ii. Prior lawful possession i. If by tolerance, acts of tolerance must have been present right from the start of the possession ii. If by lease, contractual agreement must be shown iii. Became unlawful (by termination of lease contract or nonpayment of rents) iv. Extrajudicial demand to vacate i. If by non-payment, demand letter to PAY RENTS and VACATE premises (bar question) v. Within one year from last demand Can the MTC rule on the issue of ownership in an ejectment case? Yes! But only provisionally.  The primal rule is that the principal issue must be that of possession, and that ownership is merely ancillary, in which case the issue of ownership may be resolved but only for the purpose of determining the issue of possession.  It must sufficiently appear from the allegations in the complaint that what the plaintiff really and primarily seeks is the restoration of possession.  Inferior court cannot adjudicate on the nature of ownership where the relationship of lessor and lessee has been sufficiently established in the ejectment case, unless it is sufficiently established that there has been a subsequent change in or termination of the relationship between the parties.  The rule in forcible entry cases, but not in those for unlawful detainer, is that a party who can prove prior possession can recover such possession even against the owner himself. He has the security that entitles him to remain on the property until he is lawfully ejected by a person having a better right through an accion publiciana or accion reinvindicatoria

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Where the question of how has prior possession hinges on the question of who the real owner of the disputed portion is, the inferior court may resolve the issue of ownership and make a declaration as to the owner. But, it is merely provisional, and does not bar nor prejudice an action between the same parties involving the title to the land. (Asis v Asis Vda de Guevarra, 2008)

Plenary action to recover possession (accion publiciana) Requisites: i. Must be within a period of ten years otherwise the real right of possession is lost ii. One who claims to have a better right must prove not only his right but also the identity of the property claimed iii. Filed in the RTC where the property is located  Issue involved is possession de jure of realty independently of title (as compared to interdictal, possession de facto)  Judgment rendered here is conclusive only on the question of possession, not that of ownership  Jurisdictional facts? 1. Right of plaintiff over property 2. Period to bring interdictal has expired 3. Don’t know na.  Action to recover possession based on ownership (accion reivindicatoria) Requisites: i. Right of plaintiff over property ii. Filed at the RTC where the property is located  

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Seeks recovery of possession based on ownership, with claim of title Issue involved is ownership which ordinarily includes possession, although a person may be declared owner but he may not be entitled to possession because the possessor has some rights which must be respected Action for reconveyance – prescribes in 10 years from the point of the registration of the deed or the date of issuance of the certificate of title (check book!); 4 years in cases of fraud counted therefrom on date of issuance of the certificate of title over the property o Action for reconveyance based on fraud and where plaintiff is in possession of the property subject of the acts does not prescribe. (Leyson v Bontuyan)

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o

NB: Should not have passed to a third person.

All three actions are actions in personam. Injunction as a remedy for recovery of possession  Injunction is a judicial process whereby a person is required to do or refrain from doing a particular thing.  General rule: Court should not by means of a preliminary injunction transfer property in litigation from the possession of one party to another.  In order that a preliminary injunction may be granted at any time after the commencement of the action and before judgment: Requisites: i. there must exist a clear and positive right over the property in question which should be judicially protected through the writ; and ii. the acts against which the injunction is to be directed are violative of such right  What if there is someone actually possessing the property sought to recover? o Person not ordinarily allowed to avail of remedy of preliminary preventive or mandatory injunction but must bring the necessary action for the recovery of possession.  Injunctive relief will not be granted to take property out of the possession or control of one party and place it in that of another whose title… o Has not been clearly established, or o Who did not have such possession or control at the inception of the case  Proper function is to maintain the status quo  Injunction cannot be a substitute for other suits for recovery of possession, hence, its denial will not bar the institution of the more appropriate remedy  Why? Well, a writ of injunction is an equitable relief; determination of title is a legal remedy – that’s why When can injunction be allowed?  In actions for forcible entry, the dispossessed plaintiff may file, within ten days from filing of the complaint, a motion for a writ of preliminary mandatory injunction to restore him in possession.

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The court MAY grant In order to prevent the defendant from committing further acts of dispossession during the pendency of the case o Issue of ownership may not be put in issue Ejectment cases where the appeal is taken, the lessor is given the same remedy granted above. Where the actual possessor of the property who is admittedly the owner, seeks protection from repeated or further intrusions into his property. o Even if it turns out that he isn’t the owner, he may still avail of the equitable remedy of injunction to protect his possession. When there is a clear finding of right of ownership and possession of a land in favor of the party who claims the subject property in possession of another is the undisputed owner as where the property is covered by a Torrens title pointing to the party as the owner. (Of course, check the issuance of the title if it was in bad faith) When urgency, expediency and necessity require immediate possession as where material and irreparable injury will be done which cannot be compensated by damages. o

 





Writ of possession as a remedy  Writ of possession is an order whereby a sheriff is commanded to place a person in possession of a real or personal property, such as when a property is extrajudicially foreclosed.  Improper to eject another from possession, unless sought in connection with a: 1. Land registration proceeding 2. Foreclosure of mortgage, provided, that no third person has intervened (PNB v CA – in this case, a third person was occupying the lot subject to the writ. The SC held that the an ex-parte petition for issuance of a possessory writ is not the judicial process referred to in Art 433); 3. Execution sales Limitations on the right of ownership Limited by 1. by the State’s power to tax, police power, and eminent domain 2. those imposed by law such as legal easement 3. those imposed by the owner himself, such as voluntary easement 4. those imposed by the grantor of the property on the grantee

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5. 6.

those arising from conflicts of private rights which take place in accession continua prohibition against the acquisition of private lands by aliens

Art 429 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 ay be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property.

Exception: State of necessity, but of course, civil indemnification can be asked for Requisites: i. ii.

interference is necessary to avert an imminent danger and the threatened damage to actor or a third person (but the damage must be proportionate and reasonable) imminent danger or threatening damage must be much greater than the damage arising to the owner of the property

Principle of self-help Requisites: i. Person defending must be the owner or lawful possessor ii. Use of reasonable force iii. Only be exercised at the time of an actual or threatened dispossession (no delay) iv. Actual or threatened physical invasion or usurpation which is unlawful

Art 433 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.

Read with Art 19 of the Civil Code.

Judicial process contemplated  Means ejectment suit or reinvidicatory action  Ex-parte petition for issuance of a possessory writ is not a judicial process, as it is non-litigious (PNB v CA)

Art 430 Every owner may enclose or fence his land or tenements by means of walls, ditches, live or dead hedges, or by any other means without detriment to servitudes constituted thereon. Right to enclose or fence  Limited by existing servitudes imposed on the land or tenement Art 431 The owner of a thing cannot make use thereof in such manner as to injure the rights of a third person. 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 from the interference, is much greater. The owner may demand from the person benefited indemnity for the damage to him. State of necessity General rule: a person cannot interfere with the right of ownership of another

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 Applies to both immovable and movable property Requisites to raise the disputable presumption of ownership: i. Actual (physical or material) possession of the property ii. Possession must be under claim of ownership

Art 434 In an action to recover, the property must be identified, and the plaintiff must rely on the strength of his title and not on the weakness of the defendant’s claim. Requisites: i. Person who claims that he has a better right to the property must satisfactorily prove both ownership and identity ii. Burden of proof lies on the party who substantially asserts the affirmative of an issue iii. Reliance on strength of evidence and not upon the weakness of the opposing party 

Party who desires to recover must fix the identity of the land claimed by describing the location, area and boundaries thereof o If a party fails to identify sufficiently and satisfactorily the land which he claims as his own, his action must necessarily fail

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While the identity of the property must be established, it is not necessary for the plaintiff to establish the precise location and extent of the lands claimed or occupied by the defendant General rule: where there is a conflict between the area and boundaries of a land, the latter prevails. o An area delimited by boundaries properly identifies a parcel of land Exception: where the boundaries relied upon do not identify the land beyond doubt o In such cases where there appears to be an overlapping of boundaries, the actual size of the property gains importance. o



Equiponderance of evidence? Rule for defendant. Evidence to prove ownership 1. A Torrens title 2. Title from the Spanish government 3. Patent duly registered in the Registry of Property 4. Deed of sale 5. Operating a business for nine years in defendant’s own name, without protest of plaintiff 6. Occupation of a building for a long time without payment of rent 7. Letter in which defendant recognized the ownership of the property by the plaintiff (estoppel) 8. Open, continuous, exclusive, adverse and notorious actual possession and occupation of parcels of land Indicia of claim of ownership 1. Tax declarations and tax receipts – only prima facie evidence of ownership or possession; but they are good indicia of possession in the concept of owner Conclusiveness of certificates of title  Indicates true and legal ownership of a private land and should be accorded great weight as against tax declarations o but is not conclusive if the land had already been previously registered Art 435 No person shall be deprived of the property except by competent authority and for public use and always upon payment of just compensation.

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Should this requirement be not first complied with, the courts shall protect, and in a proper case, restore the owner in his possession. Power of eminent domain Requisites: i. Taking must be done by competent authority ii. Must be for public use iii. Owner paid just compensation iv. Requirement of due process of law must be observed Should the requirements be not first complied with, restore the property to his possession.  But can be lost by estoppel or acquiescence Art 436 When any property is condemned or seized by competent authority in the interest of health, safety or security, the owner thereof shall not be entitled to compensation, unless he can show that such condemnation or seizure is unjustified. Condemnation or seizure of property in exercise of police power  Relates to use and enjoyment not ownership of property  No taking of property involved  Persons affected not entitled to financial compensation Art 437 The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special laws and ordinances. He cannot complain of the reasonable requirements of aerial navigation. Surface rights of a landowner Right of the owner of a parcel of land to construct any works or make any plantations and excavations on his land is subject to: (SLERRt) 1. Special laws 2. Local ordinances 3. Existing servitudes or easements 4. Reasonable requirements of aerial navigation 5. Rights of third persons Limitations imposed by special laws  Includes the regalian doctrine 13

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

Ownership of said land does not give him the right to extract or utilize the said minerals without the permission of the State to which said minerals belong o For the loss sustained by such owner, he is entitled to just compensation under mining laws or expropriation proceedings

Art 438 Hidden treasure belongs to the owner of the land, building, or other property on which it is found. Nevertheless, when the discovery is made on the property of another, or of the state or any of its sub-divisions, and by chance, onehalf thereof shall be allowed to the finder. If the finder is a trespasser, eh shall not be entitled to any share of the treasure. If the things 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. Art 439 By treasure is understood, for legal purposes, any hidden and unknown deposit of money, jewelry, or other precious objects, the lawful ownership of which does not appear. Requisites: i. Deposit of money, jewelry or other precious objects ii. Hidden and unknown iii. Lawful ownership of which does not appear

CHAPTER TWO: RIGHT OF ACCESSION GENERAL PROVISIONS SECTION I – RIGHT OF ACCESSION WITH RESPECT TO WHAT IS PRODUCED BY PROPERTY Art 440 The ownership of property gives the right by accession to everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially. Accession defined Accession is the right of the owner of a thing, real or personal, to become the owner of everything which is: 1. produced thereby, 2. incorporated

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3. attached thereto, either naturally or artificially. Accession

Accessory





  

fruits of, additions to, improvements upon a thing includes building, planting and sowing alluvion, avulsion, change of course of rivers, formation of islands not necessary to the principal thing



things joined to, included with the principal for the latter’s embellishment, better use or completion necessary to principal thing

example: key of a house, bow of a violin

Accession, not a mode of acquiring ownership  Merely a consequence of ownership  Exercise of the right of ownership  Since the law itself gives the right, accession may, IN A SENSE, be considered as a mode of acquiring property under the law Kinds of accession 1. Accession discreta  Extension of the right of ownership of a person to the products of a thing which belongs to such a person  Includes natural, industrial, and civil fruits (Art 441) 2. Accession continua  Extension of the right of ownership to that which is incorporated or attached to a thing which belongs to such person  May take place:  With respect to real property  Accession industrial (building, planting, sowing); or  Accession natural (alluvion, avulsion, change of river course, and formation of islands)  With respect to personal property  Conjunction (attachment, engraftment)  Commixtion or confusion  Specification

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Art 441 To the owner belongs: o The natural fruits; o The industrial fruits; o The civil fruits.

Industrial fruits  Those products which are borne through the cultivation or labor of humans  Usually cultivated for a purpose

Art 441 refers to accession discreta

Civil fruits 1. Rents of buildings 2. Prices of leases (rents) of lands and other property (including movables) 3. Amount of perpetual or life annuities or other similar income

Right of owner to the fruits General rule: All fruits belong to the owner of a thing. Exception: A person, other than the owner of a property, owns the fruits thereof: 1. possession in good faith by another (possessor entitled to the fruits received before possession is legally interrupted) 2. usufruct (usufructuary entitled to all the fruits of the property on usufruct) 3. lease of rural lands (lessee gets fruits, lessor gets rents) 4. pledge (pledgee gets fruits, etc but with the obligation to compensate what he receives with those which are owing him) 5. antichresis (creditor acquires the fruits of his debtor’s immovable, but with the obligation to apply them first to the interest and then to the principal amount of the credit) Art 442 Natural fruits are the spontaneous products of the soil, and the young and other products of animals. Industrial fruits are those produced by lands of any kind through cultivation or labor. Civil fruits are the rents of buildings, the price of leases of lands and other property and the amount of perpetual or life annuities or other similar income. Natural fruits Two kinds: 1. Spontaneous products of the soil (not through human cultivation or labor), and 2. Young and other products of animals (chicks, eggs, wool, milk) 

The second kind is considered as natural fruits whatever care or management, scientific or otherwise, may have been given by man since the law makes no distinction.  Puppies, while cute, bred by a professional breeder are still natural fruits

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Art 443 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 applies when: 1. Owner of property recovers the property from a possessor and the possessor has not yet received the fruits although they may have already been gathered or harvested; or 2. The possessor has already received the fruits but is ordered to return the same to the owner In both cases, the owner is obliged to reimburse the previous possessor for the expenses incurred by the latter. What if the possessor is in bad faith?  The owner cannot excuse himself from his obligation by alleging bad faith on the part of the possessor because the law makes no distinction When does good faith/bad faith come into play?  When the goods have yet to be gathered.  Under 449, a BPS in bad faith has no right of reimbursement for expenses, nor to the fruits. Only for the necessary expenses of preservation of land. What if the expenses exceed the fruits?  The owner must pay the expenses just the same because the law makes no distinction  But keep in mind that the owner only pays for the expenses for production, gathering and preservation – not improvement.

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Art 444 Only such as are manifest or born are considered as natural or industrial fruits. With respect to animals, it is sufficient that they are in the womb of the mother, although unborn. When natural fruits and industrial fruits deemed to exist 1. Plants which produce only one crop and then perish (rice, corn, sugar): from the time the seedlings appear from the ground 2. Plants and trees which live for years and give periodic fruits (mangoes, oranges, epols): deemed existing until they actually appear on the plants or trees 3. Animals: beginning of the maximum ordinary period of gestation (when there can be no doubt that they are already in the womb of the mum) 4. Fowls: the fact of appearance of chicks should retroact to the beginning of incubation

SECTION II – RIGHT OF ACCESSION WITH RESPECT TO IMMOVABLE PROPERTY Section 2 deals with one kind of accession continua, that of immovables. It comprehends accession industrial (445-456) and accession natural (457465). Certain basic principles must be kept in mind: 1. Accession follows the principal  Owner of the principal acquires the ownership of the accession 2. Incorporation or union must be intimate  Removal or separation cannot be effected without substantial injury to either or both 3. Effect of good faith and bad faith  Good faith exonerates a person from punitive liability but bad faith may give rise to dire consequences  General rule: person who acts in bad faith has no rights  Exception: person who is in good faith or bad faith is entitled to reimbursement for necessary expenses or preservation (452) as well as expenses for cultivation, gathering and preservation (443) 4. Effect of both parties in bad faith  Bad faith of one neutralizes bad faith of the other

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 5.

Neither party may demand as a matter of right the removal of the improvements against the will of the other for such right is available only to a party in good faith where the other is in bad faith Unjust enrichment

General rule on accession industrial Art 445 and 446 give the general rule that the accessory follows the principal. Exception: Art 120 of the Family Code Definitions: 1. Building – generic term for all architectural work with roof built for the purpose of being used as man’s dwelling, or for offices, clubs, theaters, etc. 2. Repairs – putting of something back into the condition in which it was originally in (not an improvement) Art 445 Whatever is built, planted or sown on the land of another and the improvements or repairs made thereon, belong to the owner of the land, subject to the provisions of the following articles. 

Owner of land must be known for this article to apply

Art 446 All works, sowing, and planting are presumed made by the owner and at his expense, unless the contrary is proved. Disputable presumptions as to improvements: 1. The works, sowing, and planting were made by the owner. and 2. They were made at the owner’s expense. He who alleges the contrary of these presumptions has the burden of proof. Art 447 The owner of the land who makes thereon, personally or through another, paintings, constructions or works with the materials of another, shall pay their value; and if he acted in bad faith, he shall also be obliged to the reparation of damages. The owner of the materials shall have the right to remove them only incase he can do so without injury to the work constructed, or without the plantings, constructions or works being destroyed. However, if the landowner acted in bad faith, the owner of the materials may remove them in any event, with a right to be indemnified for damages.

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Applies when the owner of the property uses the materials of another. Landowner-Builder/Planter/Sower Good faith LO-BPS can acquire the materials provided there is full payment

Bad faith Acquire the materials provided he pays full payment plus damages

Good faith Acquire materials without paying for the value thereof and entitled to damages due to defects or inferior quality of materials Bad faith Same as when both are in good faith.

Owner of Materials Good faith Entitled to full payment for value of materials, or May remove materials provided there is no substantial injury to work done Good faith Entitled to full payment for value of materials plus damages, or Remove materials even if there will be substantial injury to work done plus damages Bad faith Loses materials without indemnity and will be liable for damages due to defects or inferior quality of materials Bad faith

Art 448 The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. Art 449 He who builds, plants or sows in bad faith on the land of another, loses what is built, planted or sown without right to indemnity.

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Art 450 The owner of the land on which anything has been built, planted or sown in bad faith may demand the demolition of the work, or that the planting or sowing be removed, in order to replace things in their former condition at the expense of the person who built, planted or sowed; or he may compel the builder or planter to pay the price of the land, and the sower the proper rent. Art 451 In case of the two preceding articles, the landowner is entitled to damages from the builder, planter or sower. Art 452 The builder, planter or sower in bad faith is entitled to reimbursement for the necessary expenses of preservation of the land. Art 453 If there was bad faith, not only on the part of the person who built, planted or sowed on the land of another, but also on the part of the owner of such land, the rights of one and the other shall be the same as though both had acted in bad faith. It is understood that there is bad faith on the part of the landowner whenever the act was done with his knowledge and without opposition on his part. Art 454 When the landowner acted in bad faith and the builder, planter or sower proceeded in good faith, the provisions of article 447 shall apply. What’s good faith? Consists in the: 1. Honest belief that the land he is building, planting, sowing on is his or that by some title, he has a right to build, plant, sow on it; and 2. Ignorance of any defect or flaw in his title Abrenica definition: State of mind at the time he built the improvements (Pleasantville case) Usually, it applies to building, planting, sowing in the concept of ownership. But the Supreme Court has expanded its coverage to 1. Cases wherein a builder had constructed improvements with the consent of the owner 2. Builders in good faith who relied on the consent of another whom they have mistakenly believed to be the owner of the land

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3.

To children who built improvement on a land belonging to their parents with their parents consent (Macasaet case)

Landowner Good faith Option 1: Purchase whatever has been built, planted, or sown after paying indemnity which includes necessary, useful and luxurious expenses (if he wishes to appropriate the luxurious expenses)

Builder/planter/sower Good faith Receive indemnity for necessary, useful and luxurious expenses (depends on landowner) with right of retention over the land without obligation to pay rent until full payment of indemnity

Prohibited from offsetting or compensating the necessary and useful expense with the fruits received by the BP in good faith (Nuguid case)

Remove useful improvement provided it does not cause any injury (part of right of retention)

Option 2: To oblige the BP to buy the land or the S to pay the proper rent unless the value of the land is considerably more than that of the building or trees

Good faith Option 1: To acquire whatever has been built, planted or sown without paying indemnity except necessary expenses for preservation of land and luxurious expenses (should LO want to acquire luxurious improvement) plus damages

If the value of the land is considerably more than that of the

Entitled to reimbursement for necessary expenses for preservation of land but no right to retention

Not entitled to luxurious expenses except when LO wants to acquire (value of which will be the one at the time LO enters into possession)

Right of retention only applies when LO chooses to appropriate (but does not apply if property of public dominion) To purchase land at fair market value at time of payment when value is not considerably more than that of the building or trees

If BPS cannot pay purchase price of the land, LO can require BPS to remove whatever has been built, planted, or sown.

If BPS cannot pay the rent, LO can eject BPS from the land. Bad Faith Loses whatever has been built, planted or sown without indemnity and liable to pay damages

Entitled to reimbursement for useful expenses but cannot remove useful improvements even if removal will not cause injury

If LO does not appropriate luxurious improvements, BPS can remove the same provided there is no injury to the principal thing (land or building)

To pay rent until the purchase has been made (Technogas case)

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building or trees, BPS cannot be compelled to buy the land. In such case, BPS will pay reasonable rent if LO does not choose option 1.

Option 2: To oblige BP to buy land or S to pay proper rent plus damages Option 3: To compel BPS to remove or demolish work done plus damages Bad Faith Acquire whatever has been built, planted or sown by paying indemnity plus damages

Entitled to remove luxurious improvements if it will not cause injury and LO does not want to acquire them Obliged to pay for land or proper rent and pay damages Obliged to remove or demolish work done at his expense and pay damages Good Faith If LO acquires whatever has been built, planted or sown, BPS must be indemnified the value thereof plus damages

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If LO does not acquire, BPS cannot insist on purchasing land

Bad Faith Both in good faith

BPS can remove whatever has been built, planted or sown regardless of whether or not it will cause injury and will be entitled to damages Bad Faith

Necessary expenses  Made for the preservation of the thing, or  Those which seek to prevent the waste, deterioration, or loss of the thing Useful expenses  Expenses which add value to a thing or  Augment is income When does good faith cease?  From the moment defects in the title are made known to the possessor by extraneous evidence or by suit for recovery of the property by the true owner What happens if good faith ceases? (Rosales case)  LO can acquire improvements built PRIOR to the notice to BPS (when good faith ceased), and indemnify BPS of current market value at time of payment  LO entitled to rent from the time BPS good faith ceased When will these rules not apply? 1. When other provisions of law govern (agency, co-ownership, lease, usufruct) 2. Improvement constructed on one’s own land subsequently sold (person constructs a house on his own land and later sold land to another)  But, the provision on indemnity in 448 may be applied by analogy where the owner-builder later lost ownership of the land by virtue of

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3. 4. 5.

a court judgment, considering that the primary intent of 448 is to avoid a state of forced co-ownership especially where the parties in the main agree that 448 and 546 are applicable and indemnity for the improvements may be paid although they differ as to basis of the indemnity - whut?! (Pecson v CA) Builder is a belligerent occupant Constructions not in the nature of buildings Property of public domain

Art 455 If the materials, plants or seeds belong to a third person who has not acted in bad faith, the owner of the land shall answer subsidiarily for their value and only in the event that the one who made use of them has no property with which to pay. This provision shall not apply if the owner makes use of the right granted by Article 450. If the owner of the materials, plants or seeds has been paid by the builder, planter or sower, the latter may demand from the land-owner the value of the materials and labor. Landowner Good Faith Option 1: To acquire whatever has been built, planted or sown provided there is payment of indemnity (which includes value of what has been built, planter or sown plus value of materials used) Option 2: To oblige BP to buy land or S to pay rent unless value of land is considerably more than that of building or trees

Builder/Planter/Sower Good Faith To receive indemnity from LO with right of retention over land until full payment

Owner of the Materials Good Faith To receive indemnity from BPS who is primarily liable for materials; if BPS is insolvent, to proceed against LO who is subsidiarily liable with no right of retention

To buy land or to pay proper rent

To receive indemnity from BPS only (LO is not subsidiarily liable) with right of retention until full payment; or To remove materials if there will be no injury on building or trees and will have material lien against BPS for

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Good Faith

Good Faith

Same

Good Faith Option 1: To acquire whatever has been built, planted or sown without paying indemnity except for necessary expenses for preservation of land and luxurious expenses (should LO want to acquire luxurious improvements) plus damages

Option 2: To oblige BP to buy the land or S to pay proper rent plus damages Option 3: To oblige BP to demolish or remove what has been built, planted or sown plus damages Bad Faith

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Bad Faith BPS loses what has been built, planted or sown plus liable for damages but is entitled to be indemnified for necessary expenses and luxurious expenses (should LO want to acquire luxurious improvements) and has no right of removal even if removal will not cause damage

payment of materials Bad Faith Whatever is the choice of LO, the OM: 1. loses the materials in favor of the BPS and 2. will have no right to receive indemnity from BPS nor LO Bad Faith (Since both BPS and OM are in bad faith, treat them both as if they are in good faith.) Whatever is the choice of the LO, OM has right to receive indemnity for value of materials from BPS only (LO has no subsidiary liability for value of materials because OM is considered in good faith only insofar as BPS is concerned)

To demolish or remove what has been built, planted or sown and liable for damages

OM has no right to remove materials even if there will be no injury or damage OM has right of removal provided there will be no injury or damage Liable to pay damages due to defects or inferior quality of materials

Good Faith

Good Faith

To buy the land or pay proper rent and liable to pay damages to LO

To acquire what has been built, planted or sown by paying indemnity plus liable to pay damages Bad Faith Same

To receive indemnity from LO plus damages

Good Faith Same

TO receive indemnity of materials principally from BPS and in case BPS is insolvent, subsidiarily from LO Bad Faith No right to receive indemnity for value of materials from BPS nor LO (who ends up owning buildings or trees)

Art 456 In the cases regulated in the preceding articles, good faith does not necessarily exclude negligence, which gives right to damages under article 2176. Art 457 To the owners of the lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. Article treats of alluvion, a form of accession natural. Alluvion is…  Accretion which the banks of rivers gradually receive from the effects of the current of the waters and  Which belong to the owners of lands adjoining the said banks  

Riparian owners are owners of lands adjoining the banks of rivers. Littoral owners are the owners of lands bordering the shore of the sea or lake or other tidal waters

Distinguished from accretion  Alluvion is applied to the deposit of soil or to the soil itself  Accretion is the act or process by which a riparian land gradually and imperceptively receives addition made by the water to which the land is contiguous Requisites

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i. ii. iii.

Deposit or accumulation of soil or sediment must be gradual and imperceptive Accretion results from the effects or action of the current of waters of the river (exclusive work of nature) Land where accretion takes place must be adjacent to the bank of a river

Instances when alluvion DOES NOT take place 1. Accretion because of sudden and forceful action like that of flooding 2. Accretion caused by human intervention (would still be part of public domain – Vda de Nazerno v CA) 3. Accretion caused by action of Manila Bay (since Manila Bay is not a river, it’s part of the sea) 4. Accretion on the bank of a lake (like Laguna de Bay) have been held to belong to the owners of the lands to which they are added Elements of river and their ownership A river is a compound concept consisting of three elements: 1. Running waters 2. The bed 3. The banks 

Since a river is a compound concept, it should have only one nature – it should either be totally public or completely private. And since rivers, whether navigable or not, are of public dominion (Art 420), it is implicit that all the three component elements be the same nature also.

Reasons for alluvion 1. Compensate the riparian owner for the danger of loss that he suffers because of the location of his land 2. Compensate him for the encumbrances and various kinds of easements to which his property is subject 3. Promote the interests of agriculture for the riparian owner it in the best position to utilize the accretion Accretions affecting lands registered under the Torrens system In case of diminution of area  Registration does not protect the riparian owner against diminution of the area of his land through gradual changes in the course of the adjoining stream

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Accretions which the banks of rivers may gradually receive from the effect of the current become the property of the owners of the banks In case of increase of area  Although alluvion is automatically owned by the riparian owner, it does not automatically become registered land, just because the lot which receives such accretion is covered by a Torrens title  So, alluvial deposit acquired by a riparian owner of registered land by accretion may be subjected to acquisition through prescription by a third person, by failure of such owner to register such accretion within the prescribed period Art 458 The owners of estates adjoining ponds or lagoons do not acquire the land left dry by the natural decrease of the waters, or lost that inundated by them in extraordinary floods.  Refers only to ponds and lagoons o No application when the estate adjoins a creek, stream, river or lake o For purposes of alluvion, lakes are of the same category of creeks, streams and rivers  Pond o a body of stagnant water without an outlet o larger than a puddle and smaller than a lake  Lagoon o small lake, ordinarily of fresh water, o and not very deep, fed by floods o the hollow bed of which is bounded by elevations of land  Lake o Body of water formed in depressions of the earth o Ordinarily fresh water o Coming from rivers, brooks or springs o Connected with the sea by them o Hence, Laguna de Bay is a lake Art 459 Whenever the current of a river, creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains the ownership of it, provided that he removes the same within two years.

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Avulsion is…  Also known as force of river  Defined as the accretion which takes place when the current of a river, creek or torrent segregates from an estate on its bank a known portion and transfers it to another estate  In which case, the owner of the estate to which the segregated portion belonged, retains the ownership thereof  Also refers to the segregation or transfer itself of a known portion of land to another by the force of the current Alluvion  Deposit of soil is gradual  Deposit of soil belongs to the owner of the property where the same was deposited  The soil cannot be identified 

Avulsion  Deposit is sudden or abrupt  The owner of the property from which a part was detached retains the ownership thereof  Detached portion can be identified

Where there had been accretions to the land adjacent to the bank of a river, the riparian owner does not lose the ownership of such accretions even if they are separated by avulsion from the land by the sudden change of the course of the river

Requisites i. Segregation and transfer must be caused by the current of a river, creek or torrent ii. Segregation and transfer must be sudden or abrupt iii. Portion of land transported must be known or identifiable   

Even if the detached portion be placed on top of another land instead of being adjoined to it, Art 459 still applies as long as it can be identified as coming form the estate from which it was detached If only soil is removed by water and spread over another’s land such that no known portion can be said to exist which can be removed, there is no avulsion Current o Continuous movement of a body of water, often horizontal, in a certain direction

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River o o o Creek o o

Natural surface stream of water of considerable volume Permanent or seasonal flow Emptying into an ocean, lake or other body of water Small islet extending further into land Natural stream of water normally smaller than and ofter tributary to a river

Torrent o Violent stream of water o A flooded river or one suddenly raised by a heavy rain and descending a steep incline o Raging flood or rushing stream of water

What if a portion of land is transferred, but not by a current of water, but by a landslide?  You can apply Art 459, by analogy. Remove it within two years  The former owner preservers his ownership of the segregated portion provided he removes (not merely claims) the same within the period of 2 years  It would seem that his failure to do so would have the effect of automatically transferring ownership over it to the owner of the other estate  Law doesn’t make a distinction between private land and land of the public domain  Why two years? o Segregated portion is usually very small and it is thus useless to the original owner o Similar to uprooted trees (but there, 6 months) o If the owner of the separated portion retains his ownership without any qualification, he would have a right to enter the other estate at any time, which wouldn’t be convenient to the other estate o After a long period, the detached potion may become permanently attached to the new land so it’ll be hard to remove

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Art 460 Trees uprooted and carried away by the current of the waters belong to the owner of the land upon which they may be cast, if the owners do not claim them within 6 months. If such owners claim them, they shall pay the expenses incurred in gathering them or putting them in a safe place.    

Applies only to uprooted trees If a known portion of land with trees standing thereon is carried away by the current to another land, Art 459 governs The original owner claiming the trees is liable to pay the expenses incurred by the owner of the land upon which they have been cast in gathering them or putting them in a safe place Claim must be done in 6 months o If not, the trees will belong to the owner of the land where the trees have been cast to o Six months is a condition precedent and not a prescription period o After a claim is made within 6 months an action may be brought within the period provided by law for prescription of movables

NB: For trees, you need only CLAIM within the period. For land (Art 459), you have to REMOVE them within 2 years Art 461 River beds which are abandoned through the natural change in the course of the waters ipso facto belong 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. River beds abandoned through natural change in the course of waters  They belong to owners occupied by the new course of the river o In proportion to the area lost (if only one owner lost a portion of his land, the entire old bed should belong to him. If more than two, then in proportion to the area lost)  Abandoned? The words may be construed to mean that where there is abandonment by the government over the old bed, the owner of the invaded land automatically acquires ownership of the same without any

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formal act on his part. (Remember that rivers are property of public dominion) o The change in the course of the river does not ipso facto result in the abandonment of the river but must be the reason for its abandonment, in other words, the river is abandoned because of or through the natural change of the water The owners of land adjoining the old bed are given the preferential right to acquire the old bed by paying the value thereof o The indemnification shall not exceed the value of the area occupied by the new bed (in case of disagreement, bring the case to court.)

Requisites i. There must be a natural change in the course of the waters of the river ii. Change must be abrupt or sudden NB: Law speaks of change of river course. If a river simply dries up or disappears, the bed left dry will belong to public dominion (Art 502) Art 462 Whenever a river, changing its course by natural causes, opens a new bed through a private estate, this bed shall become of public dominion. NB: This article talks of the new riverbed. Art 461 talked about the old riverbed.    

The bed of a public river or stream is of public ownership (Art 502) If the river changes its course and opens a new bed, this bed becomes of public dominion even if its on private property Just as the old had bed had been of public dominion before the abandonment, the new riverbed shall likewise be of public dominion No distinction whether a river is navigable or floatable or not

Art 463 Whenever a current of a 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.

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NB: This article does not refer to the formation of islands through accretion (that’s in Art 464 and 465). d. This article refers to the formation of an island caused by a river dividing itself into branches resulting in: 1. The isolation of a piece of land or part thereof, or 2. The separation of a portion of land from an estate by the current (see Art 459) 

The owner preserves his ownership of the isolated or separated property

Art 464 Islands which may be formed on the seas within the jurisdiction of the Philippines, on lakes, and on navigable or floatable rivers belong to the State. Art 465 Islands which through successive accumulation of alluvial deposits are formed in non-navigable and non-floatable rivers, belong to the owners of the margins or banks nearest to each of them, or to the owners of both margins if the island is in the middle of the river, in which case it shall be divided longitudinally in halves. If a single island thus formed be more distant from one margin than from the other, the owner of the nearer margin shall be the sole owner thereof. Rules of ownership of islands form through alluvion 1.

2.

An island belongs to the State as part of its patrimonial property if it is formed: a. On the seas within the jurisdiction of the Philippines b. On lakes c. On navigable or floatable rivers If it is formed in non-navigable and non-floatable rivers: a. It belongs to the nearest riparian owner or owner of the margin or bank nearest to it as he is considered in the best position to cultivate and develop the island (in other words, sa pinakamalapit na may ari ng lupa) b. If it is in the middle of the river, the island is divided longtitudinally in halves c. If the island formed is longer than the property of the riparian owner, the latter is deemed ipso jure to be the owner of that

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portion which corresponds to the length of that portion of his property along the margin of the river If a new island is formed between an existing island and an opposite bank, the owner of the older island is considered a riparian owner together with the owner of the land adjoining the bank for the purpose of determining ownership of the island He must of course register the land, else it be subject to adverse possession of another

Navigable river o One which forms in its ordinary condition by itself or by uniting with other waters a continuous highway over which commerce is or may be carried on o Test: whether it is navigable in fact, if it is used or susceptible of being used as a highway of commerce, for trade and travel in the usual and ordinary modes o A navigable river is one that is “floatable”, that is, a river admitting floats i. Hence, a floatable stream is a navigable stream (Macatangay v Secretary of Public Works – in this case, natangay si Macatangay. Hehehe!)

SECTION THREE – RIGHT OF ACCESSION WITH RESPECT TO MOVABLE PROPERTY Art 466 Whenever two movable things belonging to different owners are, without bad faith, united in such a way that they form a single object, the owner of the principal thing acquires the accessory, indemnifying the former owner thereof for its value. Adjunction is…  The union of two movable things belonging to different owners  In such a way that they form a single object  But one of the component things preserves its value Characteristics of adjunction In order that adjunction may take place, it is necessary that: 1. There are two movables belonging to different owners 2. They are united in such a way that they form a single object; and

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3.  

They are so inseparable that their separation would impair their nature or result in substantial injury to either In determining the right of the parties in adjunction, regard is had only to the things joined and not to the persons. But where there is a mere change of form or value which does not destroy the identity of the component parts, the original owners may demand their separation (Art 469)

Kinds of adjunction 1. inclusion or engraftment (such as when a diamond is set on a gold ring) 2. soldering or soldadura (when led is united or fused to an object made of lead) a. ferrumincaion (if both the accessory and principal are of the same metal) b. plumbatura (if they are of different metals) 3. writing or escritua (when a person writes on paper belonging to another) 4. painting or pintura (when a person pains on canvas of another) 5. weaving or tejido (when threads belonging to different owners are used in making textile) Art 467 The principal thing, as between two things incorporated, is deemed to be that to which the other has been united as an ornament, or for its use or perfection. Art 468 If it cannot be determined by the rule given in the preceding article which of the two things incorporated is the principal one, the thing of the greater value shall be so considered, and as between two things of equal value, that of greater volume. In painting and sculpture, writings, printed matter, engraving and lithographs, the board, metal, stone, canvas, paper or parchment shall be deemed the accessory thing. Tests to determine the principal in adjunction In the order of application, the principal is that: 1. To which the other (accessory) has been united as an ornament or for its use or perfection. (rule of importance and purpose) 2. Of greater value, if they are of unequal values; 3. Of greater volume, if they are of an equal value; 4. That of greater merits taking into consideration all the pertinent legal provisions (see Art 475) applicable as well as the comparative merits, utility and volume of their respective things

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The special rule regarding paintings, etc is based on the consideration that what is painted is of greater value that the board or canvas inasmuch as the exceptions mentioned are specified, its provision can not be applied by analogy to cases of adjunction of similar nature which are deemed excluded. (See Art 467 and 468)

Art 469 Whenever the things united can be separated without injury, their respective owners may demand their separation. Nevertheless, in case the thing united for the use, embellishment or perfect of the other, is much more precious than the principal thing, the owner of the former may demand its separation, even though the thing to which is has been incorporated may suffer some injury. When separation of things united are allowed 1. Whenever the separation can be done without injury 2. When the accessory much more precious, the owner of the accessory may demand its separation even though the principal thing may suffer some injury  Owner who made or caused the union or incorporation shall bear the expenses for separation 3. When principal acted in bad faith, owner of accessory may separate even if the principal thing be destroyed Art 470 Whenever the owner of the accessory thing has made the incorporation in bad faith, he shall lose the thing incorporated and shall have the obligation to indemnify the owner of the principal thing for the damages he may have suffered. If the one who has acted in bad faith is the owner of the principal thing, the owner of the accessory thing shall have a right to choose between the former paying him its value or that the thing belonging to him be separated, even though for this purpose it be necessary to destroy the principal thing; and in both cases, furthermore, there shall be indemnity for damages. If either one of the owners has made the incorporation with the knowledge and without the objection of the other, their respective rights shall be determined as though both acted in good faith. ADJUNCTION (accessory follows principal) Rights of Owner of Principal Rights of Owner of Accessory

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Good Faith Acquires the accessory, indemnifying the owner of the value thereof

Good Faith Loses the accessory but has a right to indemnity for the value of the accessory

If by the one who caused the mixture or confusion acted in bad faith, he shall lose the thing belonging to him thus mixed or confused, besides being obliged to pay indemnity for the damages caused to the owner of the thing with which his own was mixed

Except: When value of accessory is much more precious than the principal thing (469)

Has a right to demand separation even if it causes injury to the principal thing (469)

Except: When still separable, may demand separation (no adjunction anyway) Good faith Acquires the accessory and has a right to indemnity for damages he may have suffered Bad faith Pays for the accessory plus damages

May demand separation (469(

Definition of mixture  Takes place when two or more things belonging to different owners are mixed or combined  With the respective identities of the component parts destroyed or lost  Two kinds o Commixtion (for solids) o Confusion (for liquids)

Separate thing even if it is destroyed plus pay damages

Option 2: Demand separation even if it causes the destruction of the principal thing plus damages Bad Faith

Bad Faith As if both are in good faith

Bad faith Loses the thing and has liability for damages Good faith Option 1: Demand the owner of the principal to pay for the value of the accessory plus damages

Art 471 Whenever the owner of the material employed without his consent has a right to indemnity, he may demand that this consist in the delivery of a thing equal in kind and value, and in all other respects, to that employed, or else in the price thereof, according to expert appraisal. Art 472 if by the will of their owners two things of the same or different kinds are mixed, or if the mixture occurs by chance, and in the latter case the things are not separable without injury, each owner shall acquire a right proportional to the part belonging to him, bearing in mind the value of things mixed or confused. Art 473 if by the will of only one owner, but in good faith, two things of the same or different kinds are mixed or confused, the rights of the owners shall be determined by the provisions of the preceding article.

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Rules governing mixture (co-ownership) 1. If the mixture by will of owners, their rights shall be governed by their stipulations. In the absence of any stipulation, each owner acquires a right or interest in the mixture in proportion to the value of his materials as in co-ownership. MIXTURE Owner who caused mixture Owner of the thing mixed into Good faith or by chance Good faith or by chance Each owner acquires a right proportional to the part belonging to him, bearing in mind the value of the things mixed or confused Bad faith Loses the thing mixed or confused plus liable to pay damages

Each owner acquires a right proportional to the part belonging to him, bearing in mind the value of the things mixed or confused Good faith Acquires the thing mixed plus entitled to damages

Art 474 One who in good faith employs the material of another in whole or in part in order to make thing of a different kind, shall appropriate the thing thus transformed as his own, indemnifying the owner of the material for its value. If the material is more precious than the transformed thing or is of more value, its owner, may, at his option, appropriate the new thing to himself, after first paying indemnity for the value of the thing, or demand indemnity for the material.

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If in the making of the thing bad faith intervened, the owner of the material shall have the right to appropriate the work to himself without paying anything to the maker, or to demand of the latter that he indemnify him for the value of the material and the damages he may have suffered. However, the owner of the material cannot appropriate the work in case the value of the latter, for artistic or scientific reasons, is considerably more than that of the material. Definition of specification  Takes place whenever the work of a person is done on the material of another  Such material, in a consequence of the work itself, undergoing a transformation.  Imparting of a new form to the material belong to another, or making of the material of another into a different kind o Flour made into bread, grapes into wine, clay into bricks, love into hate (joke. Putek, ang boring ng Property. If you’ve made it this far, good for you!) SPECIFICATION (accessory follows principal) Owner of material Builder Good faith Good faith Right to indemnification for the value Shall appropriate the thing thus of the material. transformed as his own, indemnifying the owner of the material for its value. Except: Material more precious than transformed thing. Option 1: Appropriate the new thing to himself, indemnifying the builder for his work.

To be indemnified.

Option 2: Demand indemnity for the material. Good faith Option 1: Appropriate the work to himself without paying indemnity. (Damages also?)

Appropriate the same after indemnity for material. Bad faith Loses his work. No right to indemnity.

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Except: When for artistic or scientific reasons, the thing has a value considerably higher than the material. The owner of the material cannot appropriate the work.

Pay for the materials and damages.

Option 2: Demand indemnity for material plus damages.

Must pay indemnity and damages.

Art 475 In the preceding articles, sentimental value shall be duly appreciated. Adjunction, mixture and specification distinguished Adjunction Mixture At least two things At least two things Component parts retain or preserve their nature Accessory follows principal

Things mixed may or may not retain their respective original nature Co-ownership results

Specification May be only one ting whose form is changed Component parts retain or preserve their nature Accessory follows principal

CHAPTER THREE: QUIETING OF TITLE ART 476 Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but it is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title, an action may be brought to remove such clod or to quiet the title. An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein. Title to real property refers to that upon which ownership is based. Plaintiff in action for quiet title dies, should it be dismissed? No. It’s a quasi in rem suit. Defendant’s defenses: prescription, lack of jurisdiction of court

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Cloud on title  Semblance of title, either legal or equitable, or a claim or a right in real property, appearing in some legal from, but which is in fact, invalid or which would be inequitable to enforce  Requisites i. Instrument, record, claim, encumbrance or proceeding which is apparently valid or effective, ii. Such instrument is in truth and in fact, invalid, ineffective, voidable or unenforceable, or has been extinguished or terminated, or has been barred by extinctive prescription iii. Such instrument may be prejudicial to said title Action to quiet title  Requisites: i. Plaintiff or complainant has a legal or an equitable title to, or interest in the real property subject of the action ii. The deed, claim or proceeding claimed to be casting cloud on his title must be shown to be, in fact, invalid or inoperative despite its prima facie appearance of validity or legal efficacy Action to quiet title  Purpose to put an end to troublesome litigation in respect to the property involved  Remedial action involving a present adverse claim  1st paragraph of Art 476

Action to remove a cloud on title  Removal of a possible foundation for a future hostile claim  Preventive action to prevent a future cloud on the title  2nd paragraph of Art 476

Benefits from allowing actions  Task of court is to determine the respective rights of the parties so that the complainant and those claiming under him may forever free from any danger of hostile claim (Rumarate case)  Affords prompt and adequate method to remove cloud on title  Promotes improvement of property To what kind of property does this action apply?  Real property, which may refer to either the title or only an interest therein (usufruct, servitude, lease record, etc)  Not to personal property o But, they may be applied to personalty under exceptional circumstances with respect to certain types of property which  partake of the nature of real property (vessels, motor vehicles, certificates of stocks), or  treated to some extent as realty because of registration requirements for ownership or transactions affecting them (chattel mortgage) Prescriptibility of action 1. If plaintiff in possession, it does not prescribe. An action to quiet title brought by a person who is in possession of the property is imprescriptible. 2. If plaintiff not in possession, he must invoke his remedy within the proper prescriptive period. Ten years if in good faith, 30 years if in bad faith.

An action to quiet title includes an action to remove a cloud of title.

Art 477 The plaintiff must have legal or equitable title to, or interest in the real property which is the subject matter of the action. He need not be in possession of said property.

Nature of action  Quasi in rem  Judgment is conclusive only between the parties  The res, the subject-matter of the controversy, is within the court’s jurisdiction, and it is because of that circumstance that the court is able to adjudicate  Not essential that the court acquire jurisdiction of the person of the defendant

Title and possession of the plaintiff  Plaintiff must have a legal or equitable title or an interest in the real property which is the subject matter of the action o Legal title may consist in full ownership or in naked ownership o If plaintiff has beneficial interest in the property (such as a beneficiary in a trust), he has beneficial title o Interest in property is any interest short of ownership, like the interest of a mortgagee or a usufructuary

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If plaintiff is not in possession, he may also bring one of the three actions mentioned in addition to the action to quiet title In order to afford complete relief to the parties in action to quiet title, the court, without thereby converting the action from quieting of title into accion publiciana, may determine,: o Incidentally the ownership, o The stats of the legal title to the property o Right to the possession thereof

Art 478 There may also be an action to quiet title or remove a cloud therefrom when the contract, instrument or other obligation has been extinguished or has terminated, or has been barred by extinctive prescription. Two cases when action allowed An action to quiet title may be maintained: 1. When the contract, instrument, or other obligation has been extinguished or terminated (right of the defendant has been extinguished by the happening of a condition subsequent) 2. When the contract, instrument or other obligation has been barred by extinctive prescription (as where plaintiff has possess in bad faith the property publicly, adversely and uninterruptedly for 30 years)

Art 481 The procedure for quieting of title or the removal of a cloud therefrom shall be governed by such rules of court as the Supreme Court shall promulgate.

CHAPTER FOUR: RUINOUS BUILDINGS AN TREES IN DANGER OF FALLING Art 482 If a building, wall, column or any other construction is in danger of falling, the owner shall be obliged to demolish it or to execute the necessary work in order to prevent it from falling. If the proprietor does not comply with this obligation, the administrative authorities may order the demolition of the structure at the expense of the owner, or take measures to insure public safety. 

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Art 479 The plaintiff must return to the defendant all benefits he may have received from the latter, or reimburse him for expenses that may have redounded to the plaintiff’s benefit. Obligation of plaintiff to return or reimburse  The purpose of the action to quiet title is solely o to remove the cloud on the plaintiff’s title or o to prevent a cloud from being cast upon his title, and not to obtain any other benefit  Plaintiff is bound to return to the defendant all the benefits he may have received form the latter or reimburse him for the expenses incurred on the property which has redounded to the plaintiff’s benefit (less of course, any damage which he suffered by reason of the defendant) Art 480 The principles of the general law on the quieting of title are hereby adopted insofar as they are not in conflict with this Code.

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If a building, wall, column or other construction is in danger of falling, the owner has the duty to either: o Demolish it, or o Repair it. In case he doesn’t, the administrative authorities, in the exercise of police power, may order the demolition of the structure, or take measures to insure public safety Recognition of the limitation of the owner’s rights in the use and enjoyment of his property o Sic utere tuo ut alienum non laedas. – Use your property as not to injure others

Art 483 Whenever a large tree threatens to fall in such a way as to cause damage to the land or tenement of another or to travelers over a public or private road, the owner of the tree shall be obliged to fell and remove it; and should he not do so, it shall be done at his expense by order of the administrative authorities. 

Owner of the tree may be compelled to fell and remove a threatening tree, and should he fail to do so, the work shall be ordered done at his expenses by the administrative authorities

TITLE III – CO-OWNERSHIP

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ART 484 There is co-ownership whenever the ownership of an undivided thing or right belongs to different person. In default of contracts, or of special provisions, co-ownership shall be governed by the provisions of this Title. What is co-ownership?  As a manifestation of ownership, it is that form of ownership which exists whenever an undivided thing or right belongs to different persons  As a right, it has been defined as the right of common dominion which two or more persons have in a spiritual or ideal part of a thing which is not materially or physically divided Requisites i. Plurality of owners ii. Object of ownership must be an undivided thing or right iii. Each co-owners’ right must be limited only to his ideal share of the physical whole Characteristics of co-ownership 1. Two or more co-owners 2. Single object which is not materially or physically divided, over which and his ideals share of the whole, each co-owner exercises ownership, together with the co-owners 3. No mutual representation by the co-owners 4. Exists for the common enjoyment of the co-owners 5. No distinct legal personality 6. Governed first by the contract of parties a. otherwise, by special legal provisions b. in default of such provisions, by this Title Ownership of a co-owner  Ownership of whole and over his aliquot share  Each owner is at the same time absolute owner of his own ideal but definite share which determines his rights and obligations in the coownership  Every co-owner, jointly with the other co-owners, is the owner i. of the whole, and over the whole he exercises the right of dominion, and ii. he is at the same time the owner of an aliquot portion which is truly abstract because until division is effected such portion is not concretely determined

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Disputed portions owned already concretely determined  No co-ownership when the different portions owned by different people are already concretely determined and separately identifiable, even if not yet technically described  Example: When northern half of land belongs to buyer, southern half belongs to seller Sources of co-ownership 1. Contract (two persons share in paying purchase price) 2. Law (easement in party walls, absolute community of property) 3. Succession (in the case of heirs of undivided property) 4. Testamentary disposition or donation inter vivos (testator prohibits partition of the property) 5. Fortuitous event or by chance (commixtion or confusion by accident) 6. Occupancy (two folks catch a wild animal in the jungles of Borneo) 

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Co-ownership Each co-owner, together with the others, is the owner of the whole undivided thing or right but at the same time of his own ideal part thereof Can dispose of his share without the consent of the other Survivors are subrogated to the rights of the deceased immediately upon the death of the latter Disability of a co-owner does not inure to the benefit of the others Co-ownership May be created without formalities of a contract No juridical or legal personality Purpose is collective enjoyment of the thing

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Joint Ownership No abstract share ownership by the co-owners, the right of the joint tenants being inseparable Not permitted to dispose of his share or interest in the property without the consent of others If joint tenant dies, his ownership dies with him Disability of a joint tenant inures to the benefit of the others for purposes of prescription Partnership Can be created only by a contract, express or implied Distinct juridical personality Purpose to obtain profits

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Co-owner can dispose of his share without the consent of the others, transferee automatically becoming a co-owner No mutual representation Distribution of profits must be proportional to the respective interests of the co-owners Not dissolved by death Agreement to keep the thing undivided for a period of more than ten years is void (although it may be extended by a new agreement) Co-ownership Each co-owner has a right of dominion over the whole property and over his undivided share Right of ownership rests solely on each and every co-owner over a single object

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Unless authorized, a partner cannot dispose and substitute another partner in his place Partner can generally bind the partnership Distribution of profits is subject to stipulation of the partners

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Dissolved by death or incapacity

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There may be agreement as to any definite term without limit set by law

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Easement Precisely a limitation on the right of dominion Right of dominion is in favor of one or more persons and over two or more different things

Case doctrines  The property regime of parties to a bigamous marriage is governed by Art 148 of the Family Code which provides that all properties acquired by the parties out of their actual joint contribution of money, property, or industry shall be governed by the rules on co-ownership. If there is no contribution from either or both of the spouses, there can be no coownership. (Acre v Yuttikki - aw yeah, what a name.) Art 485 The share of the co-owners, in the benefits as well as in the charges, shall be proportional to their respective interests. Any stipulation in a contract to the contrary shall be void. The portions belonging to the co-owners in the co-ownership shall be presumed equal, unless the contrary is proved. Presumption: Proportional to their respective interests Does not apply to co-ownership based on will or by donation.

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Art 486 Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights. The purpose of the co-ownership may be changed by agreement, express or implied. Limitations on co-owner’s right to use 1. Must be n accordance with the purpose for which the co-ownership is intended  Resort to the agreement  In absence thereof, it is to be understood that the thing is intended for that use for which it is ordinarily adapted according to its nature  Co-owners are free to change the purpose of the co-ownership by agreement, express or implied o However, mere tolerance does not change purpose 2. Must not injure the interest of the co-ownership 3. Must not prevent the co-owners from using it according to their rights Art 487 Anyone of the co-owners may bring an action in ejectment. Action in ejectment  Any co-owner can bring, in behalf of himself, and the other co-owners an action in ejectment affecting the co-ownership o Forcible entry, unlawful detainer, recovery of possession, recovery of ownership  May be brought against strangers and even against a co-owner o Only purpose of an action against a co-owner who takes exclusive possession and asserts exclusive ownership of the property is to obtain recognition of the co-ownership  An adverse decision in the action is not necessarily res judicata with respect to the other co-owners not being parties to the action o Exception: where it appears that the action was instituted in their behalf with their express or implied consent, or o The rights in the co-ownership are derived from the title of their predecessors-in-interest found by the court to be invalid or inexistent

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Art 488 Each co-owner shall have a right to compel the other coowners to contribute to the expenses of preservation of the thing or right owned in common and to the taxes. Anyone of the latter may exempt himself from this obligation by renouncing so much of his undivided interest as may be equivalent to his share of the expenses and taxes. No such waiver shall be made if it is prejudicial to the coownership. Obligation to contribute to expenses of preservation and to taxes  The expenses of preservation of the thing or right owned in common and the amount of taxes due thereon should be borne by all  A co-owner who advanced them has a right to demand reimbursement from the others in proportion to their respective interests in the coownership  Refers only to necessary expenses  Useful expenses are not covered, unless such were incurred with the consent of the others  Expenses for pure luxury are not also refundable, not being for preservation Renunciation by a co-owner of his share in the co-ownership  Renunciation need not be total  The co-owner need only renounce or give up in favor of the other coowners so much of this undivided share as may be equivalent to his share of expenses and taxes  Example? Art 489 Repairs for preservation may be made at the will of one of one of the co-owners, but he must, if practicable, first notify his co-owners of the necessity for such repairs. Expenses to improve or embellish the thing shall be decided upon by a majority as determined in Article 492. Necessity for agreement on expenses  Acts or decisions affecting the ting owned in common may be grouped into o Acts of preservation (Art 489) o Acts of administration (Art 492) o Acts of alteration (Art 491)  Repairs for preservation

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o

o

o

A co-owner has the right to compel the other co-owners to contribute to the expenses of preservation, maintenance or necessary repairs of the thing or right owned in common, and to the taxes, even if incurred without the knowledge of other co-owners or prior notice to them, in view of the nature of expenses Co-owner must, if practicable, first notify the co-owners of the necessity for the repairs  If impracticable or where the repairs are very urgent and the other co-owners are in remote places and cannot be reached, the notice may be dispensed with The lack of notice, even if practicable, would not exempt the other co-owners from the obligation to contribute to the expenses. But the co-owner who advanced them has the burden of proving that they were properly incurred.

Art 490 Whenever the different stories of a house belong to different owners, if the titles of ownership do not specify the terms under which they should contribute to the necessary expenses and there exists no agreement on the subject, the following rules: 1. the main and party walls, the roofs and the other things used in common, shall be preserved at the expense of all the owners in proportion to the value of the story belonging to each; 2. Each owner shall bear the cost of maintaining the floor of his story; the floor of the entrance, front door, common yard and sanitary works common to all shall be maintained at the expense of all the owners pro rata; 3. The stairs from the entrance to the first story shall be maintained at the expense of all the owners pro rata, with the exception of the owner of the ground floor; the stairs from the first to the second story shall be preserved at the expense of all, except the owner of the ground floor and the owner of the first story; and so on successively. 

Applies if the titles of ownership do not specify the terms thereof or there exists no agreement on the subject

Art 491 None of the co-owners shall without the consent of the others, make alterations in the thing owned in common, even though benefits for all would result therefrom. However, if the withholding of the

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consent by one or more ot the co-owners is clearly prejudicial to the common interest, the courts may afford adequate relief. Necessity of consent of other co-owners for alterations  Alteration contemplates a change made by a co-owner in the thing owned in common which involves: o Change of the thing from the state or essence in which the others believe it should remain; or o Withdrawal of the thing from the use to which they wish it to be intended; or o Any other transformation which prejudices the condition or substance of the thing or its enjoyment by the others.  Alteration is not limited to material or physical changes o Includes any act of ownership by which a real right or encumbrance is imposed on the common property, such as servitude, registered lease, lease of real property for more than one year, mortgage, pledge  NB: Unanimous consent of all the co-owners, not a mere majority, is necessary even if the alteration would prove beneficial because alteration is an act of ownership and not of mere administration o Consent may be expressed or implied  Liability for alteration: the co-owner who makes such alteration without the express or implied consent of the other co-owners acts in bad faith because he does so as if he were the sole owner o He loses what he has spent o Obliged to demolish the improvements done, and o Liable to pay for loses and damages the community property or the other co-owners may have suffered Art 492 For the administration and better enjoyment of the thing owned in common, the resolutions of the majority of the co-owners shall be binding. There shall be no majority unless the resolution is approved by the co-owners who represent the controlling interest in the object of the co-ownership. Should there be no majority, or should the resolution of the majority be seriously prejudicial to those interested in the property owned in common, the court, at the instance of an interested party, shall order such measures as it may deem proper, including the appointment of an administrator.

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Whenever a part of the thing belongs exclusively to one of the co-owners, and the remainder is owned in common, the preceding provisions shall apply only to the part owned in common. Rules for acts of administration and better enjoyment  Acts of management of the common property  They contemplate acts or decisions for the common benefit of all the coowners and not for the benefit of only one or some of them  While alteration is more or less permanent, acts of administration have transitory effects and have for their purpose the preservation, preparation and better enjoyment of the thing and which do not affect its essence, nature or substance  NB: Majority rule prevails. o The majority consists of co-owners who represent the controlling interest in the object of the co-ownership. o The majority likewise decides the expenses to improve or embellish the common property. Notice must be given to the minority unless it is impracticable to do so.  If there is no majority or the resolution of the majority is seriously prejudicial to the interests of the other co-owners, the court, at the instance of an interested party, may take such measures as it may deem proper o Examples of prejudicial acts:  Resolution calls for a substantial change of the thing  Authorizes leases, loans, and other contracts without the necessary security  Upholds the continued employment of an administrator who is guilt of fraud or negligence in his management Art 493 Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. Rights of each co-owner

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1. 2. 3. 4. 



Full ownership of his part, that is, his undivided interest or share in the common property Full ownership of the fruits and benefits pertaining thereto May alienate, assign or mortgage his ideal interest or share independently of the other co-owners May even substitute another person in the enjoyment of his part, except when personal rights are involved A co-owner is given the legal right of redemption in case the shares of all the other co-owners or any of them are sold to a third person (not a co-owner)1 o Harry, Ron and Neville were co-owners of a parcel of land. Harry sold his share to Draco. Ron and Neville may redeem the share from Angel. If only Ron exercises the right, he shall pay only a reasonable price. Subject to reimbursement from Neville, as it is a preservation expense. o If they both want to exercise the right, they may only do so in proportion to the share they may respectively have in the thing owned in common. A co-owner may exempt himself from the obligation to contribute to the expenses of preservation of the thing or right owned in common and to the taxes by renouncing so much of his interest as may be equivalent to his share of the expenses and taxes

Sale or mortgage of common property  Undivided portion o A co-owner is free to dispose of his pro indiviso share and of the fruits and other benefits arising from that share but the transferee does not acquire an specific or determinate physical portion of the whole, his right being limited to the portion which may be allotted to him upon the partition of the property  Definite portion 1

Art 1620 A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redepmtioner shall pay only a reasonable one. Should two or more co-owners desire to exercise the right of redemption they may only do so in proportion to the share they may respectively have in the thing owned in common.

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The fact that a deed of sale appears to convey a definite or segregated portion of the property under co-ownership that is still undivided does not per se render the sale a nullity o The sale is valid subject only to the condition that the interests acquired by the vendee must be limited to the part that may be assigned to the co-owner-vendor in the division upon the termination of the co-ownership o The sale affects only his proportionate or abstract share in the property owned in common, subject to the results of the partition, but not those of the other co-owners who did not consent to the sale o There may be a valid sale of a definite portion of the property co-owned even before actual partition where the rule of estoppel apples (co-owners didn’t object when seller pointed a portion out to a potential buyer) Whole property o Even if a co-owner sells the whole property as his own, or without the consent of ther other co-owners, the sale is valid only insofar as his ideal quota is concerned unless the sale is authorized by the other co-owners o A sale of the entire property by one co-owner will only transfer the rights of said co-owner to the buyer, thereby making the buyer a co-owner of the property o Recourse of co-owners when their consent was not secured: action for partition o

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Where personal rights are involved  A co-owner may substitute another in the enjoyment of his undivided interest in the co-ownership except when personal rights are involved  Personal right – a right which cannot be transferred because it affects the personal relations of the co-owners with one another Art 494 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. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This terms may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years.

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Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership. Termination of co-ownership  Co-ownership may be terminated in different ways, as follows 1. Consolidation or merger in only one of the co-owners of all the interests of the others; 2. Destruction or loss of the property co-owned 3. Acquisitive prescription in favor of a third person, or a co-owner who repudiates the co-ownership 4. Partition, judicial or extrajudicial 5. Termination of the period agreed upon or imposed by the donor or testator, or of the period allowed by law 6. Sale by the co-owners of the thing to a third person and the distribution of its proceeds among them Right of a co-owner to demand partition  Partition is the division between two or more persons of real or personal property which they own in common so that each may enjoy and possess his sole estate to the exclusion of and without interference from the others  Co-owner ahs the right to demand at any time partition of the thing owner in common, insofar as his share is concerned for “no co-owner shall be obliged to remain in the co-ownership”  Action to demand partition is imprescriptible or cannot be barred by laches, absent a clear repudiation of the co-ownership by a co-owner clearly communicated to the other co-owners  The actual possession and enjoyment of several portions of the common property by some of the co-owners does not of itself provide proof that the property has already been partitioned and co-ownership terminated. o A co-owner cannot, without the conformity of the other coowners or judicial decree of partition, adjudicate to himself in fee simple a determinate portion of the property owned in common as his share theirein, to the exclusion of the others Exceptions to the right to demand partition

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1.

2. 3. 4. 5.

When the co-owners have agreed to keep the thing undivided for a certain period of time, not exceeding ten years o Period stipulated exceeds ten years would be void insofar as the excess is concerned When the partition is prohibited by donor or testator for a certain period not exceeding twenty years When the partition is prohibited by law o Conjugal property, etc When partition would render the thing unserviceable for the use for which it is intended When another co-owner has possessed the property as exclusive owner and for a period sufficient to acquire it by prescription

Prescription in favor of or against a co-owner  Prescription does not run in favor or against a co-owner or co-heir  Co-ownership is a form of a trust, with each owner being a trustee for each other.  Where, however, a co-owner or co-heir repudiates the co-ownership, prescription begins to run from the time of repudiation (requisites) i. He had performed unequivocal acts of repudiation of the coownership amounting to an ouster of the beneficiary or the other co-owners ii. Such positive acts of repudiation have been made known to the beneficiary or other co-owners iii. Evidence thereon is clear, complete and conclusive in order to establish prescription without any shadow of doubt; and iv. Possession is open, continuous, exclusive and notorious Examples of specific acts which are considered as acts of repudiation  Filing by a trustee of an action in court against the trustor to quiet title to property  Action for reconveyance of land based on implied or constructive trust  Cancellation of title in the name of the apparent beneficiaries and application for a new certificate of title in his (administrator/trustee) name Art 495 Notwithstanding the provisions of the preceding article, the coowners cannot demand a physical division of the thing owned in common, when to do so would render it unserviceable for the use for

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which it is intended. But the co-ownership may be terminated in accordance with Article 498. Art 496 Partition may be made by agreement between the parties or by judicial proceedings. Partition shall be governed by the Rules of Court insofar as they are consistent with this Code. Purpose and effect of partition  Partition has for its purpose the separation, division and assignment of the thing held in common among those to whom it may belong.  After partition, the portion belonging to each co-owner has been identified and localized, so that co-ownership, in its real sense, no longer exists Action for partition  Two phases: o Determine whether there is indeed a co-ownership o Determine how the property is to be divided  The issue of ownership or co-ownership must first be solved in order to effect a partition of properties  An action for partition will not lie if the claimant has no rightful interest over the subject property

performed the partition agreement, equity will confirm such partition and in a proper case, decree title in accordance with the possession in severalty Art 497 The creditors or assignees of the co-owners may take part in the division of the thing owned in common and object to its being effected without their concurrence. But they cannot impugn any partition already executed, unless there has been fraud, or in case it was made notwithstanding a formal opposition presented to prevent it, without prejudice to the right of the debtor or assignor to maintain its validity. 

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How partition effected  May be effected extrajudicially pursuant to an agreement  May be effected judicially by judicial proceedings under Rule 69 of the Rules of Court o An action for partition is in the nature of an action quasi in rem Application of the Statute of Frauds  The Statute of Frauds does not apply to partition because it is not legally deemed a conveyance or a sale of property resulting in change of ownership but simply a segregation and designation of that part of the property which belongs to each of the co-owners  Oral partition is valid and enforceable where no third persons are involved o In cases of oral partition, the actual possession of one of the property is evidence that there was indeed oral partition. o In an oral partition under which the parties went into possession, exercises acts of ownership, or otherwise partly

Mickey Ingles Ateneo Law 2012 Librat: No stamping please! 

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The law does not expressly require that previous notice of the proposed partition be given to the creditors and assignees. But as they are granted the right to participate in the partition, they have also the right to be notified thereof. In the absence of notice, the partition will not be binding on them. Rules: o If no notice is given, the creditors or assignees may question the partition already made; o If notice is given, it is their duty to appear and make known their position; they may concur with the proposed partition or object to it; and o They cannot impugn a partition already executed or implemented unless:  There has been fraud, whether or not notice was given, and whether or not formal opposition was presented, or  The partition was made notwithstanding that formal opposition was presented to prevent it, even if there has been no fraud. Debtor or assignor has always the right to show the validity of the partition.

Art 498 Whenever the thing is essentially indivisible and the co-owners cannot agree that it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds distributed. 

Although the thing cannot be physically divided, the co-ownership may nevertheless be terminated in accordance with the above provision

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 

pursuant to the rule in Art 494 by adjudication of the thing to one of the co-owners who shall indemnify the others or by its sale with the proceeds thereof divided among the co-owners Sale may be private, public, and purchases may be a co-owner or a third person Art 498 applies when: o Thing indivisible o Co-owners can’t agree that it be allotted to one of them, who shall indemnify the others o So, ibenta na lang!

Art 499 The partition of a thing owned in common shall not prejudice third persons who shall retain the rights of mortgage, servitude, or any other real rights belonging to them before the division was made. Personal rights pertaining to third persons against the co-ownership shall also remain in force, notwithstanding the partition. 

Third persons, refer to all those with real rights, such as mortgage and servitude over the thing owned in common or with personal rights against the co-owners who had no participation whatever in the partition

Art 500 Upon partition, there shall be a mutual accounting for benefits received and reimbursements for expenses made. Likewise, each coowner shall pay for damages caused by reason of his negligence or fraud. Art 501 Every co-owner shall, after partition, be liable for defects of title and quality of the portion assigned to each of the other co-owners. What are the obligations of the co-owners upon partition? (ARIW) 1. Mutual accounting for the benefits received (because the fruits and other benefits of the thing belong to all the co-owners) 2. Mutual reimbursement for expenses (necessary expenses, taxes, etc) 3. Indemnity for damages caused by reason of negligence or fraud 4. Reciprocal warranty for defects of title or quality of the portion assigned to a co-owner (land allotted to a co-owner belongs to a third party, or the property is of inferior quality) a. Atty Abrenica said that in practice, the remedy in this situation is to divide the remaining property and just give it to the one prejudiced

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THE CONDOMINIUM ACT 

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A condominium is an o Interest in real property consisting of  A separate interest in a unit in a residential, industrial, or commercial building, and  An undivided interest in common directly or indirectly in the land on which it is located and in other common areas of the building. Two important documents: Master Deed and Declaration of Restrictions Foreigners can own up to 40% of the entire condominium corporation (so if the condominium has 100 units, foreigners can own up to 40 units) “Project” means the entire parcel of real property divided or to be divided in condominiums, including all structures thereon “Common areas” (meaning the entire project excepting all units separately granted or held or reserved) are owned by the condominium corporation “Private units” (meaning the a part of the condo project intended for any type of independent use or ownership) are owned by the unit owners o Unit owners are shareholders in the condominium o If you sell your unit to someone else, you lose your status as a shareholder in the condominium corporation Condominium Certificate of Title is what’s given (as opposed to a OCT or TCT)

TITLE V – POSSESSION CHAPTER ONE POSSESSION AND THE KINDS THEREOF Art 523 Possession is the holding of a thing or the enjoyment of a right. Concept of possession  As a distinct legal concept, possession is the holding of a thing or the enjoyment of a right with the intention to possess in one’s own right Ownership and possession distinguished  There is ownership when a thing pertaining to one person is completely subjected to his will in a manner not prohibited by law and consistent with the rights of others. It confers certain right to the owner (right to

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    

enjoy the thing owned and the right to exclude other persons from possession thereof) On the other hand, possession is defined as the holding of a thing or the enjoyment of a right. To possess means to actually and physically occupy a thing with or without a right. Possession may be in the concept of an owner or in the concept of a holder. A person may be declared owner but he may not be entitled to possession. (As in when the possession is in the hands of a tenant) A judgment for ownership does not necessarily include possession as a necessary incident. Just as possession is not a definite proof of ownership, neither is nonpossession inconsistent with ownership.

What are the elements of possession? 1. Holding or control of a thing or right  Possession always implies the element of corpus or occupation, whether in one’s own name or another (except in cases in Art 537)  In other words, there must be possession in fact 2. With intention to possess  the intention and the will to possess are inferred from the fact that the thing is under the control of the alleged possessor, however, the existence of the animus possidendi is always subject to contradiction (when in fact the person does not in fact exercise such power of control and does not intend to do so)  Insane and demented persons cannot acquire possession as they are incapable of understanding their actions, therefore, the animus possidendi cannot be present 3. In one’s own right  Possession may be in one’s own name or that of another’s (by himself or by an agent)  In the first case, the possession may be in the concept of owner or in the concept of a holder of a thing with ownership pertaining to another  In the second case, the possession is exercised by the owner or holder thru his agent  In both cases, the possession of the owner or holder is by virtue of his right as such owner or holder

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What are the relations created by possession?  Possession is characterized by two relations: 1. Possessor’s relation to the property itself – this assumes that the possessor exercises some degree of control more or less effective over the object. 2. Possessor’s relation to the world – aside from the power of control over the object, the possessor must also have the ability to exclude others from his possession. A customer who holds and examines a piece of jewelry in the presence of the seller may be said to have only custody, not possession, of the jewelry. Forms or degrees of possession 1. Possession without any title whatever  Mere holding or possession without any right or title at all, such as that of a thief or squatter 2. Possession with a juridical title  Predicated on a juridical relation existing between the possessor and the owner (or one acting in his behalf) of the thing but not in the concept of owner, such as that of a lessee, usufructuary, depositary, agent, etc 3. Possession with a just title  Possession of an adverse claimant whose title is sufficient to transfer ownership but is defective, such as when the seller is not the true owner or could not transmit his rights thereto to the possessor who acted in good faith 4. Possession with a title in fee simple  Possession derived from the right of dominion or possession of an owner. This is the highest degree of possession. Nature of possession 1. As an act  Simply the holding of a thing or the enjoyment of a right with the intention to possess in one’s own right 2. As a fact  When there is holding or enjoyment, then possession exists as a fact. It is the state or condition of a person having property under his control, with or without right 3. As a right

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

Refers to the right of a person to that holding or enjoyment to the exclusion of all others having better right than the possessor. It may be: o Jus possidendi, or right to possession which is incidental to and included in the right of ownership; or o Jus possessionis or right of possession independent of and apart from the right of ownership.

Possession as a fact 1. The face of possession gives rise to certain rights and presumptions.  Thus a person has a right to be respected in his possession, and should he be disturbed therein, he shall be protected or restored to said possession.  A possessor has in his favor the presumption that his possession is lawful – that he is the owner or has been given the right of possession by the owner. He who would disturb a possessor must show either ownership or a better possessory right. 2. Possession is not a definitive proof of ownership nor is non-possession inconsistent therewith. Possession, however, may create ownership either by occupation or by acquisitive prescription. Classes of possession 1. Possession in one’s own name or in the name of another (Art 524) 2. Possession in the concept of owner or possession in the concept of holder (Art 525), and 3. Possession in good faith or possession in bad faith (Art 526) Extent of possession 1. Actual possession  Occupancy in fact of the whole or at least substantially the whole. With land, it consists in the manifestation of acts of dominion over it of such a nature as a party would naturally exercise over his property.  Literally, to possess means to actually and physically occupy a thing with or without a right. 2. Constructive possession  Occupancy of part in the name of the whole under such circumstances that the law extends the occupancy to the possession of the whole. Doctrine of constructive possession

Mickey Ingles Ateneo Law 2012 Librat: No stamping please! 

 

Possession in the eyes of the law does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession. The general rule is that the possession and cultivation of a portion of a tract of land under claim of ownership of all is constructive possession of all. o There are qualifications to this rule, and one of them is that relating to the size of the tract in controversy with reference to the portion actually in possession of the claimant.

Art 524 Possession may be exercised in one’s own name or in that of another. Name under which possession may be exercised  An owner or a holder may exercise his possession in his own name or through another.  In the same way, possession may be acquired by the same person who is to enjoy it or by one acting for another (Art 532) 1. In one’s own name o When in one’s own name, the fact of possession and the right to such possession are found in the same person, such as the actual possession of an owner or a lessor of land. 2. In the name of another o When possession is in the name of another, the one in actual possession is without any right of his own, but is merely an instrument of another in the exercise of the latter’s possession, such as possession of an agent, servant or guard. Possession in another’s name may be:  Voluntary, when exercised by virtue of an agreement, or  Necessary or legal, when exercised by virtue of law, such as the possession in behalf of incapacitated persons.  Physical or material, when the possessor is a mere custodian of the property and has no independent right or title to retain or possess the same as against the owner (like the possession of money received by a teller for the bank), or

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

Juridical, when the possession gives the transferee a right over the thing which the transferee may set up against the owner, such as the possession of an agent who receives the proceeds of sales of goods delivered to him in agency by his principal.

Case doctrines  In the grammatical sense, to possess means to have, to actually and physically occupy a thing, with or without a right. Two things are paramount in possession – o there must be occupancy, apprehension or taking, and o there must be intent to possess (animus possidendi). (Yu v Pacleb)  Possession always includes the idea of occupation. It is not necessary that the person in possession should himself be the occupant. The occupancy can be held by another in his name. without occupancy, there is no possession. (Yu v Pacleb) Art 525 The possession of things or rights may be had in one of two concepts: either in the concept of owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another person. Concept in which possession may be had  Concept, as contemplated in the provision, does not mean the opinion, attitude or belief of the possessor, but of the others, generally in view of the circumstances which precede and accompany the possession.  Thus, possession in the concept of owner is distinguished from possession in good faith.  This kind of possession is also referred as to adverse possession that may ripen into ownership under Article 540.  Possession may be had in one of two concepts: 1. Possession in the concept of owner (en concepto de dueno)  This takes place when the possessor, by his actions, is considered or is believed by other people as the owner, regardless of the good or bad faith of the possession.  It is possession under a claim of ownership or title by one who is the owner himself or one who is not the owner but claims to be and acts as the owner.

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2.

Possession in the concept of holder  This takes place when the possessor of a thing or right holds it merely to keep or enjoy it, the ownership pertaining to another person.  It is possession not under a claim of ownership, the possessor acknowledging in another a superior right which he believes to be of ownership, whether this be true or not, or his belief be right or wrong.  A person may be a lessor although he is not the owner of the property leased. In lease, only the temporary use and enjoyment, not the ownership of the property is transferred.

Possession in concept of both owner and holder or in neither  It is possible that a person may exercise possession both in the concept of owner and in the concept of holder.  A distinction must be borne in mind between possession of the thing itself and possession of the right to keep or enjoy the thing. o Rights are possessed in the concept of owner. Thus, the lessee possesses the thing leased in the concept of holder, and the right of lease in the concept of owner.  The agent, parent and other legal representatives possess neither in the concept of owner nor holder. They possess in the name of another. Case doctrines  Possession is: o open when it is patent, visible, apparent, notorious and not clandestine. o continuous when uninterrupted, unbroken and not intermittent or occasional. o exclusive when the adverse possessor can show exclusive dominion over the land and an appropriation of it to his own use and benefit o notorious when it is so conspicuous that it is generally known and talked off by the public or the people in the neighborhood.  Use of land is adverse when it is open and notorious. (Republic v Imperial Credit Corporation)  While a tax declaration by itself is not sufficient to prove ownership, it may serve as sufficient basis for inferring possession. (Rep v ICC)

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Tax declarations and receipts can only be the basis of a claim of ownership through prescription when coupled with proof of actual possession. (Heirs of Cabal v Cabal) However, tax declarations and receipts are not conclusive evidence of ownership. At most, they constitute mere prima facie proof of ownership or possession of the property for which the taxes have been paid. In the absence of actual public and adverse possession, the declaration of the land for tax purposes does not prove ownership. (Cequena v Bolante)

Art 526 He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing. Mistake upon a doubtful or difficult question of law may be the basis of good faith. Define possessor in good faith and in bad faith  A possessor in good faith (Buena fe) is one who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it.  A possessor in bad faith (mala fe) is one who possesses in any case contrary to the foregoing; he is aware that there exists in his title or mode of acquisition a flaw which invalidates it.  This article presupposes that the there exists a flaw in the title or mode of acquisition of the possessor who is either aware or not aware of it.  If there is no flaw, there can be no issue regarding good or bad faith.  Good faith is always presumed, and upon him who alleges bad faith on the part of the possessor rests the burden of proof.  The distinction is importance principally in connection with the receipt of fruits and the payment of expenses and improvements and the acquisition of ownership by prescription.  The distinction is immaterial in the exercise of the right to recover under Article 539 which speaks of every possessor.  The good or bad faith is necessarily personal to the possessor but in the case of a principal and any person represented by another, the good or bad faith of the agent or legal rep will benefit or prejudice him for whom he acts. Requisites for possession in good faith or bad faith 1. The possessor has a title or mode of acquisition; (Art 712)

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There is a flaw or defect in said title or mode; and The possessor is unaware or aware of the flaw or defect or believes that the thing belongs or does not belong to him. A possessor in good faith becomes a possessor in bad faith from the moment he becomes aware that what he believes to be true is not so. If the flaw is in the title of the possessor’s predecessor, and affects his own title, the flaw exists in his own title unless he can sustain his own independent of that of his predecessor.

Concept of good faith  Good faith or the lack of it is a question of intention, but in ascertaining the intention, the courts are necessarily controlled by the evidence as to the conduct and outward acts by which alone the inward motive may be determined.  Good faith or the want of it, is not a visible, tangible fact that can be seen or touched but rather a state or condition of mind which can only be ascertained by actual or fancied tokens or signs.  The essence of bona fides or good faith lies in: o The honest belief in the validity of one’s right, o ignorance of a superior claim, and o absence of intention to overreach another, or to defraud or to seek an unconscionable advantage. (also the doctrine of Heirs of Cabal)  Good faith must rest on a colorable right in the possessor beyond a mere stubborn belief in one’s title.  One is considered a possessor in good faith if he is not aware that there exists in his title or mode of acquisition any flaw which invalidates it.  Basically, it’s honesty of intention and absence of malice. Concept of bad faith  It is the opposite of good faith.  It imputes a dishonest purpose to do wrong or cause damage.  It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest of ill-will for ulterior purposes. Mistake upon a doubtful or difficult question of law  The phrase “mistake upon a doubtful or difficult question of law” refers to the honest error in the application of the law or interpretation of doubtful or conflicting legal provisions or doctrines.

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It is different from “ignorance of the law.” Manresa says that gross and inexcusable ignorance of the law may not be the basis of good faith, but excusable ignorance may be such basis if it is based upon ignorance. Dean Capistrano says that excusable ignorance as a basis of good faith was rejected by the Code Commission.

Case doctrines  The possessor with a Torrens Title who is not aware of any flaw in his title which invalidates it is considered a possessor in good faith and his possession does not lose this character except in the case and from the moment his Torrens Title is declared null and void by final judgment of the Courts. (Dizon v Rodriguez)  The defense of having purchased the property in good faith may be availed of only where registered land is involved and the buyer had relied in good faith on the clear title of the registered owner. (Daclag v Macahilig) Art 527 Good faith is always presumed, and upon him who alleged bad faith on the part of a possessor rests the burden of proof. Presumption of good faith  This article establishes the presumption of good faith; it does not say that good faith exists, but that it is presumed.  The presumption is just because possession is the outward sign of ownership. It is to be presumed that the right of the possessor is wellfounded.  Every person is presumed to be honest until the contrary is shown.  But note that for the purposes of prescription, just title must be proved; it is never presumed. Art 528 Possession acquired in good faith does not lose this character except in the case and from the moment facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully. Cessation of good faith during possession

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Possession which begins in good faith is presumed to continue in good faith until the possessor acquires knowledge of facts showing a defect or weakness in his title. The law speaks of “facts” in place of the word “acts”, the former being broader than the latter. Thus, it is immaterial whether the “facts” from which bad faith can be deduced involve acts of the possessor himself or of some other person or any extraneous evidence. But the existence of the facts mentioned in the article must be proved. Bad faith begins or good faith is interrupted from the time the possessor becomes aware “that the he possesses the thing improperly or wrongfully,” not from the time possession was acquired. In the absence of other facts showing the possessor’s knowledge of defect in his title, good faith is interrupted from the receipt or service of judicial summons. o From the service of judicial summons, there exists an act which the possessor knows that his right is not secure, that someone disputes it, and that he may yet lose it; and if the court orders that restitution be made, that time determines all the legal consequences of the interruption, the time when the possession in good faith ceases to be so before the law. o The filing of a case alleging bad faith on the part of a vendee gives cause or cessation of good faith.

Case doctrines  When a contract of sale is void, the possessor is entitled to keep the fruits during the period for which it held the property in good faith, which good faith ceases when an action to recover possession of the property is filed against him and he is served summons therefor. (DBP v CA) Art 529 It is presumed that possession continues to be enjoyed in the same character in which it was acquired, until the contrary is proven. Continuity of the character of the possession  The character or possession (good faith or bad faith) is presumed to continue until the contrary is proved  No one can, by his sole will nor by the mere lapse of time, change the cause of his possession. Presumption on the continuance of possession

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There are other presumption aside from Articles 527 and 529 affecting possession, namely: 1. Uninterrupted possession of hereditary property (Art 533) 2. Possession with just title (Art 541) 3. Possession of movables with real property (Art 542) 4. Exclusive possession of common property (Art 543) 5. Continuous possession (Art 544) 6. Uninterrupted possession (Art 561), and 7. Possession during intervening period (Art 1138)

Case doctrines  Possession, to constitute the foundation of a prescriptive right, must be possession under a claim of title, that is, it must be adverse. (BogoMedellin v CA)  An acknowledgment of the easement is an admission that the property belongs to another. It gives the holder of the easement an incorporeal interest on the land but grants no title thereto. (Bogo v CA)  Mere material possession of land is not adverse possession as against the owner and is insufficient to vest title, unless such possession is accompanied by the intent to possess as an owner. (Bogo v CA) Art 530 Only things and rights which are susceptible of being appropriated may be the object of possession. Object of possession  To be the object of possession, the thing or right must be susceptible of being appropriated.  There are more things susceptible of appropriation than there are things within the commerce of men (i.e. those that can be acquired by prescription). o With respect to res nullius (property without owner), they can be possessed because theya re capable of being appropriated but hey cannot be acquired by prescription which presupposes prior ownership in another. For as long as a thing is res nullius, it is not within the commerce of men. o Property of public dominion cannot also be the object of prescription. The same is true of common things but both may be the object of possession.

CHAPTER 2 ACQUISITION OF POSSESSION Art. 531. Possession is acquired by the material occupation of a thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities established for acquiring such right. (438a) Ways of acquiring possession  To be considered in possession, one need not have actual or physical occupation of a thing all times. There are three ways of acquiring possession, namely: 1. By the material occupation or exercise of a right; 2. By the subjection of the thing or right to our will; and 3. By proper acts and legal formalities established for acquiring such right of possession.  The modes of acquiring ownership can be seen in Article 712. Material occupation or exercise of right 1. With respect to things – the law requires material occupation as one of the modes of acquiring possession. 2. With respect to rights – since rights are intangible and cannot logically be occupied, what is acquired is the exercise of a right. For example, possession of a servitude of way, which is a right, is acquired by the exercise of the right (by passing over the servient land) Material occupation by delivery  The material occupation of a thing as a means of acquiring possession may take place by actual or constructive delivery. Constructive delivery includes: 1. Tradicion brevi manu which takes place when one already in possession of a thing by a title other than ownership continues to possess the same under a new title, that of ownership. 2. Tradicion constitutum possessorium which happens when the owner continues in possession of the property alienated not as owner but in some other capacity, such as that of lessee, pledgee, or depositary. Subject of the action of will

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The second method of acquisition is so broad in scope that it practically covers all means of acquiring possession. What the law contemplates is a distinct cause of acquiring possession and not merely an effect. It refers more to the right of possession than to possession as a fact. Examples of which are these kinds of constructive delivery: 1. Tradicion longa manu, which is effected by the mere consent or agreement of the parties, as when the vendor merely points to the thing sold 2. Tradicion simbolica, which is effected by delivering an object such as a key where the thing sold is stored or kept

Proper acts and legal formalities  This last method of acquiring possession refers to acquisition by virtue of a just title such as when property is transmitted by succession, donation, contract, or execution of a public instrument, or when possession is given by the sheriff to the highest bidder at a public auction, or pursuant to a writ of execution.  Unless there is a stipulation to the contrary, the execution of a sale thru a public instrument shall be equivalent to the delivery of the thing. But there is no delivery notwithstanding the execution of the instrument, where the purchaser cannot have the enjoyment and make use of the thing sold because such enjoyment and use are opposed or prevented by another.  Under Article 538, possession as a fact cannot be recognized at the same time in two different personalities except in the cases of copossession  A sale with pacto de retro transfers the legal title to the vendee, and in the absence of an agreement to the contrary, carries with it the right to the possession of the property sold. Case doctrines  Possession alone is not sufficient to acquire title to alienable lands of the public domain because the law requires possession AND occupation.  Possession is broader than occupation because it includes constructive possession. When the lad adds the word occupation, it seeks to delimit the all encompassing effect of constructive possession. One’s possession must not be a mere fiction. Acutla possession of a land consists in the manifestation of acts of dominion over it of such a nature

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as a party would naturally exercise over his own property. (Ong v Republic) Possession cannot be acquired through force or violence. To all intents and purposes, a possessor, even if physically ousted, is still deemed the legal possessor. (Cequena v Bolante)

Art. 532. Possession may be acquired by the same person who is to enjoy it, by his legal representative, by his agent, or by any person without any power whatever: but in the last case, the possession shall not be considered as acquired until the person in whose name the act of possession was executed has ratified the same, without prejudice to the juridical consequences of negotiorum gestio in a proper case. (439a) By whom possession acquired  Possession may be acquired: 1. Personally or by the same person who is to enjoy it; 2. Thru an authorized person or by his legal representative or by his agent, and 3. Thru an unauthorized person or by any person without any power or authority whatever. Acquisition of possession through another  Possession acquired by a person personally or thru another may be exercised by him in his own name or in that of another. But minors and other incapacitated persons need the assistance of their legal representatives to exercise the rights arising from possession.  If a person authorized to acquired possession for another acted beyond his powers, the principal is not bound unless the latter ratifies the act of acquisition.  The exception is when a person voluntarily manages the property or business of another. In such case, the stranger’s (gestor’s) possession takes effect even without ratification by the owner of the property or business. Case doctrines Art. 533. 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.

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One who validly renounces an inheritance is deemed never to have possessed the same. (440)

representatives in order to exercise the rights which from the possession arise in their favor. (443)

Acquisition of possession through succession  The rights to the succession are transmitted from the moment of the death of the decedent.  From that moment, each of his heirs becomes the undivided owner of the whole estate left with respect to that portion which might be adjudicated to him.  The inheritance may be accepted or repudiated.  There is no doubt that an heir can sell whatever right, interest or participation he may have in the property under administration, subject to the result of said administration.  In case the inheritance is accepted, the possession of the hereditary property is deemed transmitted by operation of law to the heir without interruption and from the moment of death of the decedent.  In this inheritance is validly renounced, the heir is deemed never to have possessed the same.  See book for examples.

Acquisition and exercise of rights of possession by minors and incapacitated persons  The persons referred to in the provision are unemancipated minors and other persons who have no capacity to act like spendthrifts, deaf-mutes who cannot read and write, those under civil interdiction, etc.  Things here are limited to corporeal things only.  This article refers principally but not exclusively to material occupation.  Incapacitated persons may acquire property or rights by prescription either personally or through their parents, guardians or legal reps. Once possession of a thing is acquired by such persons, there is born the right of possession. In the exercise of this right, they need the assistance of their legal reps.

Art. 534. On who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of the decedent, if it is not shown that he was aware of the flaws affecting it; but the effects of possession in good faith shall not benefit him except from the date of the death of the decedent. (442) Effects of bad faith of decedent on heir  If the decedent was in bad faith, the heir shall not suffer the consequences of the wrongful possession of the latter because bad faith is personal to the decedent and is not deemed transmitted to the heirs.  The heir suffers the consequences of such possession only from the moment he becomes aware of the flaws affecting the decedent’s title.  See book again for examples. Case doctrines  A possessor in bad faith should not prejudice his successors-in-interest. Bad faith is personal and intransmissible. (Escritor v IAC) Art. 535. Minors and incapacitated persons may acquire the possession of things; but they need the assistance of their legal

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Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing, must invoke the aid of the competent court, if the holder should refuse to deliver the thing. (441a) Recourse to the courts  Every possessor has a right to be respected in his possession. The lawful possessor may use such force as may be reasonably necessary to repel or prevent invasion or usurpation of his property.  This article applies to one who believes himself the owner of real property. If he takes justice into his own hands, he is a mere intruder; and he can be compelled to return the property in an action for forcible entry and must suffer the necessary and natural consequences of his lawlessness.  A party who can prove prior possession, whatever may be the character of the possession, has the security that entitles him to recover such possession or to remain on the property even against the owner himself until he is lawfully ejected by accion publiciana or accion reivindicatoria. Art. 537. Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession. (444)

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Acts which do not give rise to possession  The acts mentioned do not affect possession, i.e. the person in possession does not lose the same nor does the person who results to them acquire it. In other words, the true possessor is deemed to have enjoyed uninterrupted possession. o Force or intimidation – as long as there is a possessor who objects thereto, such as by suit of forcible entry. The rule does not apply if the possessor makes no objection, withdraws his objection or takes no action whatsoever after initially objecting to the deprivation. o Acts executed clandestinely and without the knowledge of the possessor – which mean that the acts are not public and unknown to the possessor or owner. o Acts merely tolerated – which do not refer to all kinds of tolerance on the part of the owner or possessor in view of the use of the word ‘merely’; it means permission, express or tacit, by virtue of which the acts of possession are performed. Hence, it is simply a question of whether permission was given or not.  Possession of another by mere tolerance is not adverse and no matter how long continued, cannot ripen to ownership by prescription.  The mere silence or failure to take any action will not be construed as abandonment of rights on the part of the real possessor. It is, of course, for the courts to decide whether there has been an abandonment or not.  Possession by tolerance is lawful but becomes illegal when, upon demand to vacate by the legal owner, the possessor refuses to comply with such demand.

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Art. 538. Possession as a fact cannot be recognized at the same time in two different personalities except in the cases of co-possession. Should a question arise regarding the fact of possession, the present possessor shall be preferred; if there are two possessors, the one longer in possession; if the dates of the possession are the same, the one who presents a title; and if all these conditions are equal, the thing shall be placed in judicial deposit pending determination of its possession or ownership through proper proceedings. (445)

CHAPTER 3 EFFECTS OF POSSESSION

Possession as a fact at the same time in two different personsalities

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The word “personalities” is not synonymous to “persons.” For example, in co-ownership, there are two or more persons, but there is only one personality. Possession as a fact may exist at the same time in two or more distinct personalities, but as a general rule, the law will recognize only one as the actual or real possessor. The exception is provided in the cases of co-possession, such as coownership, where the property is possessed at the same time in common by the co-owners also; and possession where the property is possessed at the same time by two persons, one in the concept of owner and the other, in the concept of holder. In co-possession, there is no conflict of interests of claims among the parties.

Preference of possession  Article 538 applies whether the property is real or personal. In case a dispute arises regarding the fact of possession, the order of preference is as follows: 1. The present or actual possessor shall be preferred 2. If there are two possessors, the longer in possession; 3. If the dates of possession are the same, the possessor with a title; i.e. right or document evidencing his right to support his possession; and 4. If all the above are equal, the fact of possession shall be judicially determined, and in the meantime, the thing shall be placed in judicial deposit.

Art 539 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 and the Rules of Court. A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession.

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The court shall decide the motion within thirty days from the filing thereof.

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Rights of every possessor Every possessor, whether in the concept of owner of in the concept of holder, is given the following rights: 1. 2. 3.  

Right to be respected in his possession; Right to be protected in or restored to said possession by legal means should he be disturbed therein; and Right to secure from a competent court in an action for forcible entry the proper writ to restore him in his possession (Art 428) The mere possession of a thing is sufficient to insure respect to the possessor while no other person appears to show and prove a better right. To all intents and purposes, a possessor even if physically ousted as through force and violence, is still deemed the legal possessor.

The fact, however, that a person was never in prior physical possession of a land is of no moment where he has a Torrens Title over the property as prior physical possession is necessary only in forcible entry cases. Reasons for protection 1. To aid criminal law (by preserving the peace. Order is best secured by protecting a possessor and leaving the true owner to seek his remedy in a court of law) 2. As part of the law of tort (these rights of action are given in respect of the immediate and present violation of the rights of the possessor independently of his rights of property) 3. As part of the law of property (law does not always known that the possession in question is unlawful. It would be unjust to cast on every man whose possession is disturbed the burden of proving a flawless title) Remedies of persons deprived of possession (see discussions in Art 428) 1. forcible entry or unlawful detainer 2. accion publiciana 3. accion reivindicatoria 4. replevin or manual delivery of personal property

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In forcible entry and unlawful detainer cases, subject to some exceptions, the immediate execution of the judgment in favor of the plaintiff is a matter of right and mandatory. Considering that the only issue in ejectment is that of rightful possession, damages that could be recovered are those which the plaintiff could have sustained as a mere possessor, or those caused by the loss of the use and occupation of the property, and not the damages which he may have suffered but which have no direct relation to his loss of material possession.

Issuance of a writ of preliminary mandatory injunction  In forcible entry actions, the plaintiff must present within ten days from the filing of the complaint a motion to secure from the competent court, a writ of preliminary mandatory injunction to restore him in his possession  In unlawful detainer cases where an appeal is taken, the motion shall be filed within ten days from the time the appeal is perfected, if the high court is satisfied that the lessee’s appeal is frivolous or dilatory, or the lessor’s appeal is prima facie meritorious.  In an appeal from a lower court in an ejectment case, the issue of ownership should not be delved into, for an ejectment action lies even against the owner of a property. Prior peaceful possession of plaintiff required in forcible entry action  Where a dispute over possession arises between two persons, the person first having actual possession, as between them, is the one who is entitled to maintain the action for forcible entry.  The main issue is possession de facto, independently of any claim of ownership or possession de jure that either party may set forth in his pleadings, and an appeal does not operate to change the nature of the original action  Even a mere applicant of public land who is in occupation and in peaceful possession thereof can file an action for forcible entry  Question of ownership is unessential and should be raised by the defendant in an appropriate action o Judgment rendered in an action for forcible entry shall not bar an action between the same parties respecting the title to the land or building

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The court has competence to resolve the issue of ownership but only to determine the issue of priority of possession, as its decision does not bind the title or affect the ownership of the property involved (any pronouncement on ownership is provisional) The purpose of the law is to protect the person who has actual possession The plaintiff in an action for forcible entry and detainer cannot succeed when it appears that, as between himself and the defendant, the latter had possession antedating his own; and to ascertain this, it is proper to look on to the situation as it existed before the first act of spoliation occurred Legal right of prior possessor is not an issue o If the plaintiff can prove prior possession, he may recover possession even against the owner himself. o If he can’t prove prior possession, he has no right of action even if he should be the owner himself. In case of controverted right, the law requires the parties to preserve the status quo until one or the other of them sees fit to invoke the decision of a court upon the question of possession and/or possession A forcible entry or unlawful detainer is not suspended, abated, barred or affected by actions filed in the RTC which do not involve physical or de facto possession o

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Conditions under which action for forcible entry will lie  Wrongful entrance by one not in possession o The trespasser does not have to institute a state of war. The act of going on the property and excluding the lawful possessor therefrom necessarily implies the exertion of force over the property, and this is all that is necessary. Under the law, entering upon the premises by strategy or stealth is equally as obnoxious as entering by force. o The words “by force, intimidation, threat, etc” include every situation or condition under which one person can wrongfully enter upon real property to exclude another, who has prior possession therefrom. (Banes case)  Wrongful exclusion of prior possessor o The foundation of the action is really the forcible exclusion of the original possessor by a person who has entered without right.

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Art 540 Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion. Possession as basis for acquiring ownership Possession acquired and enjoyed in the concept of owner may ripen into ownership by means of prescription. 1.

2.

3. 4.

5. 

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As holder  Cannot be the basis of prescription  So with possession acquired through force or intimidation (Art 536), merely tolerated or which is not public and is unknown to the present possessor (Art 537) As equitable mortgage  Constructive possession over the land cannot ripen into ownership as it cannot be said to have been acquired and enjoyed in the concept of owner As claimant under a possessory information title (meh) As claimant under a certificate of title  Mere possession cannot defeat the title of a holder of a registered Torrens title to real property  But the true owner of the property may be defeated by an innocent purchaser for value notwithstanding the fraud employed by the seller (forger) in securing his title  Generally, a forged deed is a nullity and conveys no title. However, there are instances when such a document may become the root of a valid title. As when the certificate of title was already transferred from the name of the true owner to the forger, and while it remained that way, the land was subsequently sold to an innocent purchaser for value (land titles!) As possessor of forest land (not possible!) Mere tax declarations of ownership do not vest or prove ownership of the property in the declarant nor are even sufficient to sustain a claim for possession over a land, in the absence of actual possession of the same. They are merely an indicum of a claim of ownership Nevertheless, they are good indicia of possession in the concept of owner

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Payment of realty tax coupled with actual possession in the concept of owner is one of the most persuasive and positive indicia, which shows the will or desire of a person to possess with claim of ownership or to obtain title to the land or property

Case doctrine  In order than an action for recovery of possession may prosper, it is indispensable that he who brings the action fully proves not only his ownership but also the identity of the property claimed, by describing the location, area and boundaries thereof. Insufficient identification of the portion of land claimed in absolute ownership cannot ripen into ownership. (Serina v Caballero) Art 541 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. Possessor in concept of owner presumed with just title  Just title does not always mean a document or a written instrument  Title is that upon which ownership is based  Actual or constructive possession under claim of ownership raises the disputable presumption of ownership. In other words, a possession is presumed ownership until the contrary is shown.  A possessor is presumed to have a just title, and he cannot be obliged to show or prove it. o Reason? To protect the owner from inconvenience, otherwise, he will always have to carry his titles under his arms to show them to whoever who wants to see it  NB: Presumption of just title does not apply in acquisitive prescription. Adverse possessor must prove his just title. Burden of proving just title  The onus probandi is on the plaintiff who seeks the recovery of property  A person who is not, in fact, in possession cannot acquire a prescriptive right to a land by the mere assertion of a right therein. Where the possessor is really the owner, the fact that a third person questions his right does not impair said right.  An owner and possessor whose title is true and valid cannot be required to show that his possession is or has been adverse as against a new claimant who has neither title nor possession.

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What are the different kinds of title? 1. Titulo verdadero y valido or true and valid  This is the title presumed in this provision  Sufficient to transfer ownership without need of possessing the property for the period necessary for acquiring title by prescription 2. Titulo justo or just title  For the purposes of prescription, there is just title… o When the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights, o but the grantor was not the owner or could not transmit any right  For prescription, just title must be proved, it is never presumed.  It must be remembered that the burden of proving the status of a purchaser in good faith lies upon him who asserts that status. It is not sufficient to invoke the ordinary presumption of good faith, that is, that everyone is presumed to have acted in good faith, since the good faith that is here essential is integral with the very status that must be established. (Aguirre v CA) 3. Titulo colorado or colorable title  One which a person has when he buys a thing in good faith, from one who is not the owner but whom he believes to be the owner  The just title required for acquisitive prescription is titulo Colorado 4. Titulo putativo or putative title  One which a person believes he has title but in fact he has not because there was no mode of acquiring ownership  As when one is in possession of a thing in the mistaken belief that it had been bequeathed to him What’s the difference between titulo Colorado and titulo verdadero y valido? In Colorado, there is a need for prescription to transfer ownership. In true and valid title, there is no need for prescription, ownership is transferred once the mode of transfer has been perfected. (Be it by sale, donation, succession, etc). Case doctrine

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In order that a co-owner’s possession may be deemed adverse to the cestui que trusti or the other co-owners, the following elements must concur: 1. That he has perfomrmed unequivocal acts of repudiation amounting to an ouster of the beneficiary or the other co-owners 2. That such positive acts of repudiation have been made known to the beneficiary or the other co-owners 3. That the evidence thereon must be clear and convincing (Aguirre v CA) Art 542 The possession of real property presumes that of movables therein, so long as it is not shown or proved that they should be excluded. Possession of real property presumed to include movables  Article 542 refers to material possession only of things, not rights  Possession may be in the concept of owner, of holder, in one’s own name or in another’s, or in good faith or in bad faith  It is normal that movables which are found in an immovable belong to the possessor of the latter  If the building is occupied by the lessee, we can suppose the same with respect to him because in this case, the possessor is the lessee  Again, this is a mere presumption. Art 543 Each one of the participants of a thing possessed in common shall be deemed to have exclusively possessed the part which may be allotted to him upon the division thereof, for the entire period during which the co-possession lasted. Interruption in the possession of the whole or a part of a thing possessed in common shall be to the prejudice of all the possessors. However, in case of civil interruption, the Rules of Court shall apply. Exclusive possession of previous co-owner deemed continuous  Article 543 speaks of co-possession of a thing, not of co-ownership  Nevertheless, its principle is applicable to co-possession of a real right  Co-possession can be over a thing or a right  All participants of a thing possessed in common constitute only one personality and the personality ceases when there is a partition.  From that moment of cessation, the personality of each participant begins.

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  

Each co-possessor is deemed (not merely presumed!) to have possessed exclusively and continuously during the period of copossession the part assigned to him in the division. The effects of the division retroact to the commencement of the copossession. But the division shall be without prejudice to the rights of creditors.

Harry, Ron, and Hermione have been co-possessors in the concept of owners of a 15 hectare parcel of land until they divided the property equally on the 8th year. If on the 4th year after the division, Draco claims ownership of the portion allotted to Harry, Harry can assert title by acquisitive prescription through possession for 10 years, for he is deemed to have possessed his portion exclusively and continuously for a period of 12 years. Interruption in possession of the thing  Both the benefits and the prejudices that might have taken place during the co-possession shall attach to each of the co-participants  Prescription obtained by a co-possessor shall benefit the others  Interruption in the possession of the whole or part of a thing shall be to the prejudice of all the possessors.  Possession is interrupted for purposes of prescription either o Naturally (when through any cause it should cease for more than 1 year) o Civilly (when the interruption is produced by judicial summons to the possessor)  In civil interruption, only those possessors served with judicial summons are affected.  For civil interruption to take place, the possessor must have received judicial summons.  When will summons not be deemed to have been issued and shall not give rise to interruption? 1. If it should be void for lack of legal solemnities, or 2. If the plaintiff should desist from the complaint or should all the proceedings to lapse, or 3. If the possessor should be absolved from the complaint.  A notice for adverse claim does NOT interrupt prescription (Heirs of Arzadon-Crisologo v Ranon)  Interruption must refer to the whole thing itself or part of it and not to a part or right of a co-possessor.

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In a co-possession, there is only one thing and many possessors. If the right of a co-possessor is contested, he alone shall be prejudiced. With respect to the thing, the prejudice shall be against all.

Art 544 A possessor in good faith is entitled to the fruits received before the possession is legally interrupted. Natural and industrial fruits are considered received from the time they are gathered or severed. Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion. Art 545 If at the time the good faith ceases, there should be any natural or industrial fruits, the possessor shall have a right to a part of the expenses of cultivation, and to a part of the net harvest, both in proportion to the time of possession. The charges shall be divided on the same basis by the two possessors. The owner of the thing may, should he so desire, give the possessor in good faith the right to finish the cultivation and gathering of the growing fruits, as an indemnity for his part of the expenses of cultivation and the net proceeds; the possessor in good faith who for any reason whatever should refuse to accept this concession, shall lose the right to be indemnified in any other manner.  

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The fruits of a thing generally belong to the owner (Art 441) but a possessor in good faith is entitled to the fruits received until good faith ceases and bad faith begins. Legal interruption of possession in good faith takes place upon service of judicial summons to the possessor. o All fruits that the possessor may receive from the time that he is summoned, or when he answers the complaint, must be delivered or paid by him to the owner or lawful possessor. Whenever there is cessation of good faith in the eyes of the law, whether by reason of the filing of a complaint or not, possession in good faith should be deemed legally interrupted from such cessation and not merely from the service of judicial summons. When the owner or possessor with a better right comes along, when he becomes aware that what he had taken for granted is at least doubtful, and when he learns the grounds in support of the adverse claim, good faith ceases.

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Possessor in bad faith is not entitled to the fruits. He has the duty to reimburse the fruits received including that which the legitimate possessor could have received. The right of the possessor in good faith is limited to the fruits, referring to natural, industrial and civil fruits (Art 441). Other things (building) belong to the owner of the land.

When fruits considered received 1. For natural and industrial fruits – from the time they are gathered or severed. Fruits gathered before legal interruption belong to the possessor in good faith. 2. For civil fruits – their accrual, not their actual receipt, shall determine when they are considered received at the time the good faith is legally interrupted. They are deemed to accrue daily and belong to the possessor in good faith in that proportion. Kinds of Fruits 1. Civil fruits

2.

Possessor in Good Faith Entitled to fruits from start of possession until legal interruption

Possessor in Bad Faith Not entitled to fruits. Must pay damages as rental from time possession started until possession is finally defeated

Natural/Industrial Fruits

a. Gathered

Right to retain fruits

Must account for fruits and return value of: fruits actually received, and fruits which the legal possessor could have received with due care and diligence. Must pay damages as reasonable rent for the term of possession. But entitled to

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necessary expenses for preservation, cultivation, and gathering of fruits. b. Pending

Owner has 2 options: First: Pro-rating (based on period of possession) between possessor and owner of: expenses, net harvest and charges Second: To allow possessor to stay in possession until after all fruits are gathered (which shall serve as the indemnity for expenses)

No rights, not even reimbursement of expenses for cultivation (because by right of accession, all fruits belong to owner without need to pay indemnity) Must pay damages as reasonable rent for the term of possession

Proportionate division of fruits and expenses  Art 545 does not apply when the possessor is in bad faith, the fruits are civil, or the fruits are natural or industrial but they have been gathered or severed when good faith ceases  A possessor in bad faith has no right whatsoever to the fruits, gathered or pending, except only necessary expenses for gathered fruit (Art 443, 449). Since civil fruits are produced day by day, Art 545 does not apply to them.  In the case of fruits already gathered at the time good faith ceases, it is Art 544 that is applicable.  If there are pending natural and industrial fruits at the time good faith ceases, the two possessors shall share in the expense of cultivation and the charges (expenses made not on the property itself but on account of it, such as taxes, interest on mortgages) in proportion to the time of possession.  They will also share on the fruits in proportion to the time of possession as well.

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What if there are no fruits or the fruits are less than expenses? o If there is no net harvest because there are no fruits or the fruits are less than the expenses, art 545 won’t apply. If the fruits are merely insufficient, the same should be divided in proportion to their respective expenses. o No fruits? Each should bear his own expenses subject to the right of the possessor in good faith to be refunded for necessary expenses under Art 546, unless the owner of new possessor exercises his option referred to above.

Art 546 Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has reimbursed therefore. Useful expenses shall be refunded only to the possessor in good faith with the same retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof. Art 547 If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them, unless the person who recovers the possession exercises the option under paragraph 2 of the preceding article. Art 548 Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expended. Art 549 The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received, and shall have a right only to the expenses mentioned in paragraph 1 of Article 546 and in Article 443. The expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded to the possessor in bad faith, but he may remove the objects for which such expenses have been incurred, provided that the thing suffers no injury thereby, and that the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession.

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Expenses Necessary Expenses

Useful expenses

Possessor in Good Faith Entitled to reimbursement Right of retention pending full reimbursements

Owner has 2 options:

Possessor in Bad Faith Entitled to reimbursement No right of retention; must vacate property (recourse is to file collection case) Liable for damages as reasonable rent for period of possession No rights

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  

Option 1: reimbursement of either (a) amount spent or (b) increase in value with right of retention with full payment.

Luxurious expenses

Deterioration/loss

Option 2: To allow possessor to remove provided no substantial damage or injury is caused Owner has 2 options:

Owner has 2 options:

Option 1: to allow possessor to remove ornaments if the principal suffers no injury

Option 1: to allow possessor to remove ornaments if the principal suffers no injury

Option 2: to retain the ornament by refunding the amount spent for the ornament

Option 2: to retain the ornament by refunding the value of the ornament at the time owner enters into possession (which means depreciated value)

No liability unless due to fraudulent intent or negligence after service of judicial summons

Always liable whether before or after service of judicial summons, for any cause, even fortuitous event.

Necessary expenses are made for the preservation of the thing of those which seek to prevent the waste, deterioration, or loss of the thing; or those without which the thing would deteriorate or be lost. Useful expenses are expenses which add value to a thing, or augment its income. Luxurious expenses are expenses not necessary for the preservation of a thing nor do they increase its productivity although they add value to the thing, but are incurred merely to embellish the thing and for the convenience or enjoyment of particular possessors.

Case doctrine  A possessor in bad faith is entitled to be reimbursed for her expenses in restoring a house to its original condition after it had been partly damaged by fire, because such expenses are necessary, and under 546, are to be refunded even to possessors in bad faith.  A builder in bad faith, under 449, is not entitled to reimbursement. But 449 is a rule of accession, which is not applicable where a new house was not built on the land of another but only repairs were made on a house that had been partly destroyed by fire. This latter case comes under 546 which provides for the refund of necessary expenses to every possessor. (Cosio v Palileo) Art. 550. The costs of litigation over the property shall be borne by every possessor. (n) Art. 551. Improvements caused by nature or time shall always insure to the benefit of the person who has succeeded in recovering possession. (456) Improvements caused by nature or time

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Article 551 covers all the natural accessions mentioned in Articles 457 to 465 which must follow the ownership of the principal thing, and generally, all improvements that are not due to the will of the possessor. The former possessor got the benefits from the property during his possession. It is but just that the improvements mentioned which take place after the possession is recovered inure to the owner or lawful possessor. Hence, he should not pay for them.

Art. 552. A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except in cases in which it is proved that he has acted with fraudulent intent or negligence, after the judicial summons. A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by a fortuitous event. (457a) Art. 553. One who recovers possession shall not be obliged to pay for improvements which have ceased to exist at the time he takes possession of the thing. (458) Improvements which have ceased to exist  The improvements referred to were enjoyed by the possessor alone.  Having ceased to exist, the owner or lawful possessor who came too late cannot benefit from them. But he is liable for necessary expenses even if the thing for which they were incurred no longer exists.  Necessary expenses are not considered improvements. Art. 554. 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. (459) Presumption of possession during intervening period  This article contemplates a situation where a present possessor is able to prove his possession of a property at a prior period but not his possession during the intervening period.  He is presumed to have possessed the property continuously without interruption, unless the contrary is proved.  The presumption is useful for purposes of prescription. Art. 555. A possessor may lose his possession: 1. By the abandonment of the thing;

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2. 3. 4.

By an assignment made to another either by onerous or gratuitous title; By the destruction or total loss of the thing, or because it goes out of commerce; By the possession of another, subject to the provisions of Article 537, if the new possession has lasted longer than one year. But the real right of possession is not lost till after the lapse of ten years. (460a)

Modes of losing possession  This provision applies to both real and personal property except no. 4 which obviously refers only to personal property (obvious raw eh, sabi ni de Leon. Yabang naman niya). The next article is expressly made applicable only to movables. What is abandonment?  Abandonment is the voluntary renunciation of all rights which a person has over a thing thereby allowing a third person to acquire ownership or possession thereof by means of occupancy.  The abandoner may be the owner or a mere possessor but the latter obviously cannot abandon ownership which belongs to another. (obviously raw!)  Since abandonment involves the renunciation of a property right, the abandoner must have a right to the thing possessed and the legal capacity to renounce it.  An owner of property cannot be held to have abandoned the same until at least he has some knowledge of the loss of its possession or of the thing, and a thing cannot be considered abandoned under the law until the spes recuperandi (hope of recovery) is gone and the animus revertendi (intention to return) is finally given up.  By voluntary abandonment, a thing becomes without a owner or possessor and is converted into res nullius and may thus be acquired by a third person by occupation.  Abandonment which converts the thing into res nullius can hardly apply to land.  Castellano v Francisco stated that abandonment requires: 1. A clear and absolute intention to renounce a right or a claim or to abandon a right or property, and 2. An external act by which that intention is expressed or carried into effect.

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The intention to abandon implies a departure, with the avowed intent of never returning, resuming or claiming the right and the interest that have been abandoned. (Castellano v Francisco)

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Assignment?  Assignment is understood to mean the complete transmission of the thing or right to another by any lawful manner.  It may be onerous or by gratuitous title.  The effect is that he who was the owner or possessor is no longer so.  Abandonment is always gratuitous. Destruction, total loss, or withdrawal from commerce  Destruction or total loss covers not only that which is caused voluntarily or intentionally but also that which is caused by accident.  A thing is lost when it perishes, or goes out of commerce, or disappears, etc. (Art 1189) Possession of another for more than one year  This refers to possession de facto (as a fact or material possession) and not de jure (legal right or real right of possession)  After one year, the former possessor can no longer bring any action for forcible entry or unlawful detainer.  Possession by mere tolerance even for over a year does not affect possession de facto.  After 10 years, the possessor or owner may bring an accion publiciana or reivindicatoria to recover possession de jure unless he is barred by prescription. Recovery by lawful owner or possessor  Possession may also be lost when it is recovered from the person in possession by the lawful owner in a reivindicatory action or by the lawful possessor in an action to recover the better right of possession. Art. 556. The possession of movables is not deemed lost so long as they remain under the control of the possessor, even though for the time being he may not know their whereabouts. (461) Loss of possession of movables

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The possession of movables shall be deemed lost when they cease to be under the control of the possessor either becaue: o They have come into the possession of a third person; or o Although, they have not been taken by another,  The possessor has completely no idea of their whereabouts or location (the pet rat has been missing for sometime; or  Even if known, they cannot be recovered, whether as a matter of fact (an unopened box of pastillas has been dropped in a deep lake) or of law (a movable lost by prescription). Possession is not lost by the mere fact that the possessor does not know for the time being the precise whereabout of a specific movable when he has not given up all hope of finding it (like a ring misplaced or lost in particular vicinity). In this case, the possessor has not lost his legal right to the object. o He retains his juridical control of the thing which remains in his patrimony.

Art. 557. The possession of immovables and of real rights is not deemed lost, or transferred for purposes of prescription to the prejudice of third persons, except in accordance with the provisions of the Mortgage Law and the Land Registration laws. (462a) Loss of possession of immovables and real rights with respect to third persons  Third persons are not prejudiced except in accordance with the provisions of the mortgage law and the registration law.  Against a recorded title, ordinary prescription of ownership or real rights shall not take place to the prejudice of a third person, except in virtue of another title also recorded and the time shall begin to run from the recording of the latter. Art. 558. Acts relating to possession, executed or agreed to by one who possesses a thing belonging to another as a mere holder to enjoy or keep it, in any character, do not bind or prejudice the owner, unless he gave said holder express authority to do such acts, or ratifies them subsequently. (463) Possessory acts of a mere holder

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The possessor referred to in this article is the same possessor mentioned in Article 525. Acts relating to possession of a mere holder do not bind or prejudice the possessor in the concept of owner unless said acts were previously authorized or subsequently ratified by the latter. Possession may be acquired for another by a stranger provided there be subsequent ratification. (Art 532)

Art. 559. The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from the person in possession of the same. If the possessor of a movable lost or which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor. (464a) Right of possessor who acquires movable claimed by another  If the possession of a movable property who acquired in bad faith, no right thereto is acquired by the possessor. The property may be recovered by the true owner or possessor without reimbursement.  If the acquisition was in good faith, here are the rules: o Possession in good faith of a movable is presumed ownership. It is equivalent to title. This is known as the doctrine of irrrevindicability. No further proof is necessary. o The possessor’s title, however, is not absolute. It is equivalent to title but is not title itself. It is merely presumptive because it can be defeated by the true owner.  These are the two exceptions to the general rule of irrevindicability. An owner can recover in these two instances: 1. When one has lost the movable, or 2. When one has been unlawfully deprived.  He may recover without reimbursement. But if the thing was sold at a public sale, the owner must reimburse the buyer.  These are the exceptions to the exceptions. Even when an owner has lost or has been unlawfully deprived, he still cannot recover in these instances: 1. When the sale is made at merchant’s stores, fairs or markets. 2. When the owner of the movable is, by his conduct, precluded from denying the seller’s authority to sell;

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3. 4. 5.

6. 7.

Where the law enables the apparent owner to dispose of the movables as if he were the true owner thereof Where the sale is sanctioned by statutory or judicial authority Where the seller has a voidable title which has not been avoided at the time of the sale to the buyer in good faith for value and without notice of the seller’s defect of title (remember CLV!) Where recovery is no longer possible because of prescription Where the possessor becomes the owner of the thing in accordance with the principle of finder’s keepers

Case doctrines  Non-payment does not void a sale. It is perfected upon the meeting of the minds. Hence, ownership shall pass from the vendor to the vendee upon the actual or constructive delivery of the thing sold. It does not constitute unlawful deprivation of personal property. It is a mere voidable sale, and unless it is avoided before the execution of the second sale, then the second sale is valid. (EDCA v Santos)  Purchaser in good faith of a chattel or movable property is entitled to be respected and protected in his possession as if he were the true owner thereof until a competent court rules otherwise. In the meantime, as the true owner, the possessor in good faith cannot be compelled to surrender possession nor to be required to institute an action for the recovery of the chattel. (Edu v Gomez)  A third party who acquired in good faith a stolen vehicle and registered it in his own name cannot lawfully refuse to return it to the true owner and insist upon reimbursement before delivery. (Aznar v Yapdiangco – stealing equals unlawful deprivation)  The owner of a ring pledged to a pawnshop by one to whom he has entrusted it to be sold on commission can recover it from the pawnshop. (Dizon v Suntay) Art. 560. Wild animals are possessed only while they are under one's control; domesticated or tamed animals are considered domestic or tame if they retain the habit of returning to the premises of the possessor. (465) Possession of animals  Animals may be:

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1.

 

Wild or animals living in a state of nature independently of and without the aid and care of man (great white shark, ornate wobbegong, brazilian slug) 2. Domesticated or tamed, or animals which are wild or savage by nature but have been subdued and made use of by man and become accustomed to live in a tamed condition (tiger ni Chavit) 3. Domestic or tame, or any of the various animals which live and are born and reared, under the control and care of man, lacking the instinct to roam freely (dog, cat, carabao, cow) Wild animals may be the object of hunting. They are possessed only if they are under one’s control. Possession of wild animals are lost when they regain their freedom or come under another’s control. Domesticated animals are possessed if they habitually return to the premises of the possessor.

What are the characteristics of usufruct? 1. It is a real right of use and enjoyment, (whether registered or not in the Registry of Property. Registering will affect and bind third persons) 2. Of Temporary duration; 3. Transmissible; and 4. May be constituted on real or personal property, consumable or nonconsumable, tangible or intangible, the ownership of which is vested in another  

Art. 561. 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. (466)

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

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This article applies to both possession in good faith as well as to possession in bad faith, but only if beneficial to the possessor (like for purposes of prescription) The recovery of possession must be according to law – through legal means; otherwise, the benefit of continuous and uninterrupted possession during the intervening period cannot be invoked.

TITLE VI - USUFRUCT CHAPTER ONE: USUFRUCT IN GENERAL Art. 562. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. (467) What is usufruct? 1. A right to enjoy the property of another with the obligation of preserving its form and substance 2. Right to enjoy the property of another temporarily, including both the jus utendi and jus fruendi, with the owner retaining the jus disponendi 3. In essence, usufruct is nothing else but simply allowing one to enjoy another’s propery

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A person cannot create a usufruct over his own property and at the same time retain ownership of the same A usufruct is essentially jus in re aliena, and to be a usufructuary of one’s own property is in law a contradiction in terms and a conceptual absurdity The essential requisite of usufruct is the right to enjoy the property of another The usufructuary is entitled to all the fruits of the property with the obligation to preserve its form and substance However, the obligation of the usufructuary to preserve is only accidental for the law or the will of the parties may modify or even eliminate it Two classifications based on whether or not impairment of object is allowed: 1. Normal, perfect or regular – invovlves non-consumable things which the usufructuary can enjoy without altering the form or substance, through they may detoriorate or diminish by time or by use 2. Abnormal, imperfect, irregular or quasi-usufruct – involves things which would be useless to the usufructuary unless they are consumed or expended, such as money, grain, liquors, etc

Nature of right Creator of right Origin

Extent of enjoyment

Usufruct Real Owner of agent May be by law, by contract, by will of testator, or by prescription All the fruits and all the

Lease Personal May not be the owner By contract

Certain uses only

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Cause

Repairs and taxes

uses and benefits of the entire property (generally) More or less passive owner who allows the usufructuary to enjoy the object Usufructuary to pay

(those stipulated) Active owner or lessor who makes the lessee enjoy Lessee not generally under the obligation to pay taxes or undertake repairs

4.

Art. 565. The rights and obligations of the usufructuary shall be those provided in the title constituting the usufruct; in default of such title, or in case it is deficient, the provisions contained in the two following Chapters shall be observed. (470) 

Art. 563. Usufruct is constituted by law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by prescription. (468) Creation of usufruct Usufruct may e classified according to how it is created into: 1. Legal, or that created or declared by law 2. Voluntary, or that created by will of the parties (an act inter vivos or an act mortis causa) 3. Mixed or that acquired by prescription Art. 564. Usufruct may be constituted on the whole or a part of the fruits of the thing, in favor of one more persons, simultaneously or successively, and in every case from or to a certain day, purely or conditionally. It may also be constituted on a right, provided it is not strictly personal or intransmissible. (469) Kinds of usufruct defined Usufruct may be 1. As to extent of object a. Total (constituted on the whole of a thing) b. Partial (constituted only on a part of a thing) 2. As to number of beneficiaries a. Simple (only one) b. Multiple (several usufructuaries) i. Simultaneous, or ii. Successive 3. As to effectivity or extinguishment

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a. Pure b. With a term (may be suspensive or resolutory) c. Conditional (may be suspensive or resolutory) As to subject matter a. Over things (tangible property) b. Over rights (intangible property which are not intransmissible)

In case of conflict between the will of the person creating the usufruct and the Civil code, the former prevails.

CHAPTER TWO RIGHTS OF THE USUFRUCTUARY Art. 566. The usufructuary shall be entitled to all the natural, industrial and civil fruits of the property in usufruct. With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger. (471) Classifications of the rights of the usufructuary 1. As to the thing and its fruits a. To receive the fruits of the property in usufruct and half of the hidden treasure he accidentally finds on the property b. To enjoy any increase which the thing in usufruct may acquire through accession c. To personally enjoy the thing in usufruct or lease it to another d. To make on the property in usufruct such improvements or expenses he may deem property and to remove the improvements provided no damage is caused to the property e. To set-off the improvements he may have made on the property against any damage to the same f. To retain the thing until he is reimbursed for advances for extraordinary expenses and taxes on the capital 2. As to the usufruct itself

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a.

3.



 



To alienate (or mortgage) the right of usufruct except parental usufruct b. In a usufruct to recover property or a real right, to bring the action and to oblige the owner thereof to give him proper authority and necessary proof, and c. In a usufruct of part of a common property, to exercise all the rights pertaining to the co-owner with respect to the administration and collection of fruits or interests from the property As to advances and damages a. To be reimbursed for indispensable extraordinary repairs made by him in an amount equal to the increase in value which the property may have acquired by reason of such repairs b. To be reimbursed for taxes on the capital advanced by him, and c. To be indemnified for damages caused to him by the naked owner. The usufructuary is given the right to enjoy the property in usufruct and he is entitled to the fruits. The usufructuary has the right to receive all the fruits except: a. where the usufruct is constituted only on a part of the fruits of a thing or b. where there is an agreement to the contrary. The naked owner retains and can exercise all the rights as owner over the property limited only by the right of enjoyment of the usufructuary. Products which when taken from the property diminishes its substance are not to be treated as fruits. They form part of the capital and belong to the naked owner, and not to the usufructuary in the absence of a contrary intent between the parties. The usufructuary is not entitled to any hidden treasure because it’s not considered as ‘fruits’. However, as a stranger, he is entitled to ½ if he is the finder.

Art. 567. Natural or industrial fruits growing at the time the usufruct begins, belong to the usufructuary. Those growing at the time the usufruct terminates, belong to the owner. In the preceding cases, the usufructuary, at the beginning of the usufruct, has no obligation to refund to the owner any expenses

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incurred; but the owner shall be obliged to reimburse at the termination of the usufruct, from the proceeds of the growing fruits, the ordinary expenses of cultivation, for seed, and other similar expenses incurred by the usufructuary. The provisions of this article shall not prejudice the rights of third persons, acquired either at the beginning or at the termination of the usufruct. (472) Right of the usufructuary to pending natural and industrial fruits This article does not apply to civil fruits. 

 

For fruits growing at the beginning of usufruct, they belong to the usufructuary who is not bound to refund to the owner the expenses of cultivation and production incurred. o However, in case the expenses were incurred by innocent third persons, the usufructuary under Art 443, pursuant to the last paragraph of Art 567, has the obligation to pay the expenses made. For fruits growing at the termination of the usufruct, they belong to the owner but he is bound to reimburse the usufructuary the ordinary cultivation expenses out of the fruits received. Manresa opines that if at the termination of the usufruct, force majeure should prevent the usufructuary from gathering the fruits, said fruits shall belong to him and not the naked owner.

Art. 568. If the usufructuary has leased the lands or tenements given in usufruct, and the usufruct should expire before the termination of the lease, he or his heirs and successors shall receive only the proportionate share of the rent that must be paid by the lessee. (473) Art. 569. Civil fruits are deemed to accrue daily, and belong to the usufructuary in proportion to the time the usufruct may last. (474) Lease by the usufrucutary  The usufructuary may lease the property in usufruct to another.  If the usufrcut should expire before the termination of the lease, the usufructuary or his heirs and successors are entitled only to the rents corresponding to the duration of the usufruct. The rents for the remaining period of the lease belong to the owner.

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Art. 570. Whenever a usufruct is constituted on the right to receive a rent or periodical pension, whether in money or in fruits, or in the interest on bonds or securities payable to bearer, each payment due shall be considered as the proceeds or fruits of such right. Whenever it consists in the enjoyment of benefits accruing from a participation in any industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character. In either case they shall be distributed as civil fruits, and shall be applied in the manner prescribed in the preceding article. (475) Usufruct constituted on certain rights  Every benefit or payment shall be considered and distributed as civil fruit of such right.  Payment and benefits that accrue after the termination of the usufruct belong to the owner.  The date when the benefits accrue determines whether they should belong to the usufructuary or to the owner. Art 570 applies whether or not the date of distribution of benefits is fixed. Case doctrine  A stock dividend is considered civil fruit and belongs to the usufructuary. (Bachrach v Seifert) Art. 571. The usufructuary shall have the right to enjoy any increase which the thing in usufruct may acquire through accession, the servitudes established in its favor, and, in general, all the benefits inherent therein. (479) Extent of rights of usufructuary  The usufructuary is generally entitled to all the benefits that the thing in usufruct can give including any increase by accession and servitudes established in his favor.  Reason is that usufruct covers the entire jus fruendi and jus utendi. Art. 572. The usufructuary may personally enjoy the thing in usufruct, lease it to another, or alienate his right of usufruct, even by a gratuitous title; but all the contracts he may enter into as such

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usufructuary shall terminate upon the expiration of the usufruct, saving leases of rural lands, which shall be considered as subsisting during the agricultural year. (480) Transactions by the usufructuary  with respect to the thing in usufruct, he may lease it even without the owner’s consent but not being the owner, the usufructuary cannot alienate, pledge or mortgage the thing itself. He may sell future crops subject to the rule that those ungathered at the time when the usufruct terminates belong to the owner.  when the things given in usufruct cannot be used without being consumed or were appraised when delivered, the usufructuary may dispose of them.  With respect to the right of usufruct, since the usufructuary is the owner of the right itselt, he may alienate, pledge or mortgage it, even by gratuitous title. o But the legal usufruct of the parent over his or her unemancipated children cannot be alienated, pledged, or mortgaged for the right is personal and intransmissible burdened as it is by important obligations of the parent for the benefit of the children. o A usufruct given in consideration of the person of the usufructuary to last during his lifetime is also personal, and therefore, intransmissible. o As a rule, all contracts entered into by the usufructuary shall terminate upon the expiration of the usufruct or earlier, except rural leases which continue during the agricultural year. Case doctrine  A usufructuary of rents, as a corollary to the right to all the rents, to choose the tenant, and to fix the amount of the rent, necessarily has the right to choose himself as the tenant, provided that the obligations he has assumed towards the owner of the property are fulfilled. (Fabie v David) Art. 573. Whenever the usufruct includes things which, without being consumed, gradually deteriorate through wear and tear, the usufructuary shall have the right to make use thereof in accordance with the purpose for which they are intended, and shall not be obliged to return them at the termination of the usufruct except in their

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condition at that time; but he shall be obliged to indemnify the owner for any deterioration they may have suffered by reason of his fraud or negligence. (481) Usufruct on things which gradually deteriorate  This article gives an instance of abnormal usufruct because in the enjoyment of the property the usufructuary cannot preserve its form or substance.  Here the thing gradually deteriorates through wear and tear or normal use.  The usufructuary is not responsible for the deterioration due to wear and tear nor is he required to make any repairs to restore it to its formal condition. He needs only to return the thing at the termination of the usufruct in the condition it may be at that time.  The usufructuary is liable for damage suffered by the thing by reason of his fraud or negligence although such liability may be set-off against the improvements he may have made on the property.  The usufructuary does not answer for deterioration due to a fortuitous event. He is, however, obligated to make the ordinary repairs needed by the thing. Art. 574. Whenever the usufruct includes things which cannot be used without being consumed, the usufructuary shall have the right to make use of them under the obligation of paying their appraised value at the termination of the usufruct, if they were appraised when delivered. In case they were not appraised, he shall have the right to return at the same quantity and quality, or pay their current price at the time the usufruct ceases. (482) Usufruct on consumable things  This is another instance of abnormal usufruct because the thing in usufruct cannot be used without being consumed, like money (but that’s really a simple loan, where the usufructuary can deal with the money as owner.)  The usufructuary shall have the right to make use of the consumable thing.  At the termination of the usufruct, he must: 1. Pay its appraised valuel or 2. If there was no appraisal made, either: a. Return the same quantity and quality, or

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b.

Pay its current price at such termination.

Art. 575. The usufructuary of fruit-bearing trees and shrubs may make use of the dead trunks, and even of those cut off or uprooted by accident, under the obligation to replace them with new plants. (483a) Art. 576. If in consequence of a calamity or extraordinary event, the trees or shrubs shall have disappeared in such considerable number that it would not be possible or it would be too burdensome to replace them, the usufructuary may leave the dead, fallen or uprooted trunks at the disposal of the owner, and demand that the latter remove them and clear the land. (484a) Usufruct on fruit-bearing trees and shrubs  The usufructuary is given the right to make use of dead trunks and those cut-off or uprooted by accident but he must place them with new plants because he has the obligation to preserve the form or substance of the property in usufruct.  Of course, the usufructuary has no obligation to replace with new plants, the dead trees or shrubs already existing at the beginning of the usufruct.  Under article 576, the usufructuary is not responsible for dead, fallen or uprooted trunks caused by calamity or extra-ordinary events. If it would not be possible or be too burdensome to replace them, he may demand that the owner remove them and clear the land. He may use the trunks but he is required to replace them with new plants under Article 575.  If replacing the trunks could not be too burdensome, the usufructuary must replace them, whether or not he makes use of them. Art. 577. The usufructuary of woodland may enjoy all the benefits which it may produce according to its nature. If the woodland is a copse or consists of timber for building, the usufructuary may do such ordinary cutting or felling as the owner was in the habit of doing, and in default of this, he may do so in accordance with the custom of the place, as to the manner, amount and season. In any case the felling or cutting of trees shall be made in such manner as not to prejudice the preservation of the land. In nurseries, the usufructuary may make the necessary thinnings in order that the remaining trees may properly grow.

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With the exception of the provisions of the preceding paragraphs, the usufructuary cannot cut down trees unless it be to restore or improve some of the things in usufruct, and in such case shall first inform the owner of the necessity for the work. (485) Usufruct on woodland and nurseries  The woodland may be a copse or may consist of timber for building.  The usufructuary may fell or cut trees as the owner was in the habit of doing or in accordance with the customs of the place as to manner, amount and season. In any case, he must not prejudice the preservation of the land.  The usufructuary cannot cut down trees other than as mentioned above unless it be for repair or improvement of the things in usufruct but in such case, the owner must be informed of the necessity for the work.  In nurseries, the usufructuary may make the necessary thinnings in order that the remaining trees may properly grow. Art. 578. The usufructuary of an action to recover real property or a real right, or any movable property, has the right to bring the action and to oblige the owner thereof to give him the authority for this purpose and to furnish him whatever proof he may have. If in consequence of the enforcement of the action he acquires the thing claimed, the usufruct shall be limited to the fruits, the dominion remaining with the owner. (486) Usufruct of judicial action to recover  This article applies if the purpose of the action is to recover real property or personal property or real right over real or personal property  The action may be instituted in the name of the usufructuary (vs an agent who institutes the action in the name of the principal)  The usufructuary may oblige the owner to give him the necessary authority to bring the action  In case of favorable judgment, the usufruct shall be limited to the fruits, with the naked ownership belonging to the owner. With the termination of the case, the usufruct of the action comes to an end.

shall have no right to be indemnified therefor. He may, however, remove such improvements, should it be possible to do so without damage to the property. (487) What happens when a usufructuary makes useful or luxurious expenses?  The usufructuary has the right to make improvements, useful or luxurious, as he may deem proper.  What are the rules? 1. He must not alter the form or substance of the property, 2. He may remove the improvements only if it is possible to do so without damage to the property 3. He has no right to be indemnified for the improvements if he does not exercise his right to remove o He cannot invoke the rights of a possessor in good faith in the concept of owner 4. If the improvements cannot be removed without damage, he may set-off the same against any damage caused by him to the property (Art 580) 5. If the usufructuary does not wish to exercise his right of removal, the owner cannot compel him to remove the improvements 6. If the usufructuary wishes to exercise his right of removal, the owner cannot prevent him by offering to reimburse him 7. The usufructuary’s right to remove the improvements includes the right to destroy them provided no damage is caused to the property 8. The right to remove is enforceable only against the owner, but not against a purchaser in good faith to whom a clean title has been issued o Right to remove the improvements should be annotated on the certificate of title, so that it can be enforced against third parties Case doctrines  By express provision of law, the usufructuaries do not have the right to reimbursement for improvements they may have introduced on the property. If the rule on reimbursement or indemnity were otherwise, then the usufructuary might improve the owner out of his property. (Moralidad v Pernes)

Art. 579. The usufructuary may make on the property held in usufruct such useful improvements or expenses for mere pleasure as he may deem proper, provided he does not alter its form or substance; but he

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Art. 580. The usufructuary may set off the improvements he may have made on the property against any damage to the same. (488) Right to set-off improvements  This article presupposes that o the improvements have increased the value of the property and o the damage to the same was caused through the fault of the usufructuary.  If the damage exceeds the value of the improvements, the usufructuary is liable for the difference as indemnity  If the value of the improvements exceeds the damage, he may remove the portion of the improvements representing the excess in value if this can be done without injury to the property, otherwise, the excess in value accrues to the owner. Art. 581. The owner of property the usufruct of which is held by another, may alienate it, but he cannot alter its form or substance, or do anything thereon which may be prejudicial to the usufructuary. (489) Rights and obligations of the naked owner  The naked owner may alienate the property in usufruct because the title (dominium directum) remains vested in him.  He may construct works, make improvements, or make new plantings on the property in usufruct.  The alienation by the naked owner cannot affect the usufruct which is registered or known to the transferee.  The naked owner, however, cannot: o alter the form or substance of the property, or o do anything thereon which may cause a diminution in the value of the usufruct, or o be prejudicial to the rights of the usufructuary,  otherwise, he shall be liable for damages.  The naked owner must: o Respect leases of rural lands by the usufructuary for the balance of the agricultural year (Art 572) o Reimburse him for advances made for extraordinary repairs (Art 594), and o Reimburse him for taxes on the capital (Art 597)

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Art. 582. The usufructuary of a part of a thing held in common shall exercise all the rights pertaining to the owner thereof with respect to the administration and the collection of fruits or interest. Should the co-ownership cease by reason of the division of the thing held in common, the usufruct of the part allotted to the co-owner shall belong to the usufructuary. (490) Usufruct of part of common property  In case a co-owner gives the usufruct of his share to a person, the usufructuary shall exercise all the rights pertaining to the co-owner regarding the administration and the collection of the fruits or interest from the property  The usufructuary shall be bound by the partition made by the owners of the undivided property although he took no part in the partition but the naked owner to whom the part held in usufruct has been allotted must respect the usufruct. Case doctrine  A partition made by the owners of land is binding upon a person who has a usufructuary right in an undivided part of the land, although the latter took no part in the partition of the property.  The right of the usufructuary is not affected by the division but it is limited to the fruits of the said part allotted to the co-owner. (Pichay v Querol)

CHAPTER 3 OBLIGATIONS OF THE USUFRUCTUARY Art. 583. The usufructuary, before entering upon the enjoyment of the property, is obliged: (1) To make, after notice to the owner or his legitimate representative, an inventory of all the property, which shall contain an appraisal of the movables and a description of the condition of the immovables; (2) To give security, binding himself to fulfill the obligations imposed upon him in accordance with this Chapter. (491) Classifications of obligations of the usufructuary 1. Those before the usufruct begins

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a.

2.

3.

Make an inventory of the property, which shall contain an appraisal of the movables and a description of the immovables b. Give security Those during the usufruct a. Take care of the property (Art 589) b. To replace with the young thereof animals that die or are lost in certain cases when the usufruct is constituted on flock or herd of livestock (Art 591) c. To make ordinary repairs (Art 592, par 1) d. To notify the owner of urgent extraordinary repairs (Art 593) e. To permit works and improvements by the naked owner not prejudicial to the usufruct (Art 595) f. To pay annual taxes and charges on the fruits (Art 596) g. To pay interest on taxes on capital paid by the naked owner (Art 597) h. To pay debts when the usufruct is constituted on the whole of a patrimony (Art 598) i. To secure the naked owner’s or court’s approval to collect credits in certain cases (Art 599) j. To notify the owner of any prejudicial act committed by third persons (Art 601) k. To pay for court expenses and costs regarding usufruct (Art 602) Those at the termination of the usufruct a. To return the thing in usufruct to the naked owner unless there is a right of retention (Art 612) b. To pay legal interest for the time that the usufruct lasts, on the amount spent by the owner for extraordinary repairs (Art 594) and the proper interest on the sums paid as taxes by the owner (Art 597), and c. To indemnify the naked owner for any losses due to his negligence or of his transferees. (Art 589-590)

Obligation to make an inventory 1. Previous notice to be given.  In the making of the inventory, the concurrence of the naked owner is not required.  Note that the law says ‘legitimate’, not legal representative

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2. 3.

4.

Expenses of inventory  Borne by the usufructuary Form of inventory  Article 583 does not provide for the form of inventory. It may be contained in a private document.  However, a public instrument is necessary to affect third persons when there are immovables. Contents of inventory  The inventory shall contain o an itemized list and o an appraisal of the movables and o description of the condition of the immovables.  The movables must be appraised because they are subject to greater danger of loss and deterioration.  Both kinds must be properly identified.

Failure to make an inventory? Usufruct not extinguished, maybe owner can demand it. Are there instances where obligation to make inventory is excused? Yes. See Art 585. Obligation to give security  The purpose of giving security is to insure the fulfillment by the usufructuary of the obligations imposed upon him  Law does not specify the kind of security that should be given Failure to give security? See Art 586. Art. 584. The provisions of No. 2 of the preceding article shall not apply to the donor who has reserved the usufruct of the property donated, or to the parents who are usufructuaries of their children's property, except when the parents contract a second marriage. (492a) When obligation to give security not applicable  This article contains the legal exceptions to the obligation of the usufructuary to give security in two cases: o To the donor who has reserved the usufruct of the property donated

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o

To the parents who are usufructuaries of their children’s parents, except when the parents contract a second marriage

Art. 585. The usufructuary, whatever may be the title of the usufruct, may be excused from the obligation of making an inventory or of giving security, when no one will be injured thereby. (493) When obligation to make inventory or to give security excused  The usufructuary may be excused from the obligation in the following cases: 1. Where the naked owner renounces or waives his right to the inventory or security 2. Where the title constituting the usufruct relieves the usufructuary from the obligation; o Is frequently true in usufructs constituted by a last will and testament or by a deed of donation in view of the trust which the testator or donor has in the usufructuary 3. Where the usufructuary asks that he be exempted from the obligation and no one will be injured thereby. o The usufructuary may apply to the courts for relief in case the naked owner refuses to grant the exemption where, for example, the usufruct is over the right to receive a periodic income or pension Art. 586. Should the usufructuary fail to give security in the cases in which he is bound to give it, the owner may demand that the immovables be placed under administration, that the movables be sold, that the public bonds, instruments of credit payable to order or to bearer be converted into registered certificates or deposited in a bank or public institution, and that the capital or sums in cash and the proceeds of the sale of the movable property be invested in safe securities. The interest on the proceeds of the sale of the movables and that on public securities and bonds, and the proceeds of the property placed under administration, shall belong to the usufructuary. Furthermore, the owner may, if he so prefers, until the usufructuary gives security or is excused from so doing, retain in his possession the property in usufruct as administrator, subject to the obligation to deliver to the usufructuary the net proceeds thereof, after deducting the sums which may be agreed upon or judicially allowed him for such administration. (494)

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Effects of failure to give security, when required  On rights of owners: Where the obligation to give security or to file a bond is not excused or exempted, the failure of the usufructuary to comply with the same entitle the naked owner for his protection o to demand that immovables be placed under administration or receivership, o movables be sold, o instruments of credit be registered or deposited in a bank or public institution o capital or sums in cash and the proceeds of the sale of the movable be invested in safe securities.  On rights of usufructuary: Until he gives the proper security, the usufructuary cannot enter upon the possession and enjoyment of the property. He may not collect any matured credits nor invest capital in usufruct without the consent of the owner or judicial authorization.  The failure to give security does not extinguish the right of usufruct. Hence, the usufructuary may alienate his right to the usufruct  This article only speaks of security (it would seem that the failure of the usufructuary to make an inventory, when not excused, does not have the same effect as when security is not given.) Art. 587. If the usufructuary who has not given security claims, by virtue of a promise under oath, the delivery of the furniture necessary for his use, and that he and his family be allowed to live in a house included in the usufruct, the court may grant this petition, after due consideration of the facts of the case. The same rule shall be observed with respect to implements, tools and other movable property necessary for an industry or vocation in which he is engaged. If the owner does not wish that certain articles be sold because of their artistic worth or because they have a sentimental value, he may demand their delivery to him upon his giving security for the payment of the legal interest on their appraised value. (495) Sworn undertaking in lieu of security (caucion juratoria)  This article applies when the usufructuary who is under obligation to give security cannot afford to do so and no one is willing to give security for them

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  

For humanitarian considerations, the court may allow the usufructuary to enjoy the property upon taking an oath to take care of the property and retain it until the termination of the usufruct in lieu of giving the security The usufructuary must first ask the naked owner to grant him the rights mentioned, and should the latter refuse, he may resort to the courts Articles with artistic or sentimental value may not be sold. The owner may demand their delivery to him if he gives security to the usufructuary for the payment of the legal interest on their appraised value.

Art. 588. After the security has been given by the usufructuary, he shall have a right to all the proceeds and benefits from the day on which, in accordance with the title constituting the usufruct, he should have commenced to receive them. (496) Retroactive effect of giving security  This article applies where the usufructuary who is required to give security gives the security after the commencement of the usufruct  Failure to give the needed security may deprive the usufructuary of the right to enjoy the possession of the property in usufruct  However, once the security is give, he is entitled to all the proceeds and benefits of the usufruct accruing from the day on which he should have commenced to receive them, from the day the usufruct commenced according to its title. Art. 589. The usufructuary shall take care of the things given in usufruct as a good father of a family. (497) Obligation to take care of the property  Includes the making of ordinary repairs needed by thing given in usufruct  Care required is that of a good father of a family (ordinary diligence)  But diligence should not be less than that required by the circumstances  Usufructuary is liable for damages suffered by the property due to his fault and negligence Art. 590. A usufructuary who alienates or leases his right of usufruct shall answer for any damage which the things in usufruct may suffer through the fault or negligence of the person who substitutes him. (498)

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Liability for fault or negligence of substitute  The usufructuary may alienate or lease his right  However, he shall be liable to the owner for any damage which the property in usufruct may suffer through the fault or negligence (also fraud or willful acts) of the substitute without prejudice to his right of action against the latter Art. 591. If the usufruct be constituted on a flock or herd of livestock, the usufructuary shall be obliged to replace with the young thereof the animals that die each year from natural causes, or are lost due to the rapacity of beasts of prey. If the animals on which the usufruct is constituted should all perish, without the fault of the usufructuary, on account of some contagious disease or any other uncommon event, the usufructuary shall fulfill his obligation by delivering to the owner the remains which may have been saved from the misfortune. Should the herd or flock perish in part, also by accident and without the fault of the usufructuary, the usufruct shall continue on the part saved. Should the usufruct be on sterile animals, it shall be considered, with respect to its effects, as though constituted on fungible things. (499a) Usufruct on a flock or herd of livestock  The usufructuary has the duty to make replacement although the death of the animals is due to natural causes. But the replacement is to be made only from the young produced so that if there are no young or the number of the young is less than that of the animals that died, the usufructuary has no duty to replace or to fill up the difference.  No duty to replace provided the usufructuary is without fault (2nd and 3rd paragraphs). Even if the partial loss is due to the fault of the usufructuary, the usufruct continues with the remainder. Bad use does not extinguish the usufruct (Art 603), but the owner may bring the necessary action for the protection of his rights.  If the animals are sterile, and they cannot be replaced by the young thereof, the usufruct shall be treated as constituted on fungible things. In such case Art 574 applies. Art. 592. The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct.

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By ordinary repairs are understood such as are required by the wear and tear due to the natural use of the thing and are indispensable for its preservation. Should the usufructuary fail to make them after demand by the owner, the latter may make them at the expense of the usufructuary. (500) Obligation to make ordinary repairs  The usufructuary is bound to make the repairs referred to without the necessity of demand from the owner o The owner may make them at the expense of the usufructuary, only should the latter fail to make them after demand has been made upon him. o The defects requiring ordinary repairs must have occurred during the usufruct, whether with or without the fault of the usufructuary.  The usufructuary is not liable for deterioration resulting from wear and tear not due to his fraud or negligence, unless the deterioration could have been prevented or arrested by ordinary repairs and he failed to make them without valid reason. Art. 593. Extraordinary repairs shall be at the expense of the owner. The usufructuary is obliged to notify the owner when the need for such repairs is urgent. (501) Art. 594. If the owner should make the extraordinary repairs, he shall have a right to demand of the usufructuary the legal interest on the amount expended for the time that the usufruct lasts. Should he not make them when they are indispensable for the preservation of the thing, the usufructuary may make them; but he shall have a right to demand of the owner, at the termination of the usufruct, the increase in value which the immovable may have acquired by reason of the repairs. (502a) Duty of owner to pay for extraordinary repairs  Law does not impose an obligation on the naked owner or the usufructuary to make extraordinary repairs on the property in usufruct. It is optional for them to make sure repairs or not.  Payment for extraordinary repairs: o Those required by the wear and tear due to the natural use of the thing but not indispensable for its preservation OR those required by the deterioration of or damage the thing caused by

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the exceptional circumstances but not indispensable for its preservation:  The owner cannot be compelled to make them. If he should make them, they shall be at his expense since they are made on his property but he shall a right to demand of the usufructuary who is benefited by the repairs, legal interest on the amount expended during the duration of the usufruct.  The usufructuary may make them but he is not entitled to indemnity because they are not needed for the preservation of the thing. o Those required by the deterioration of or damage to the thing caused by exceptional circumstances and are indispensable for its preservation:  It is also optional upon the owner or the usufructuary to make the repairs or not. If the owner should make the repairs, they shall be at his expense.  If made by the usufructuary, he shall have the right to demand of the owner the payment of the increase in value of the immovable by reason of the repairs at the termination of the usufruct provided the following are present:  He notified the owner of the urgency of the repairs  The owner failed to make the repairs  The repair is necessary for the preservation of the property The usufructuary has the right of retention even after the termination of the usufruct until he is reimbursed for the increase in value of the property caused by extraordinary repairs for preservation (Art 612) o Increase in value is the difference between the value of the property before the repairs were made and the value after the repairs were completed

Art. 595. The owner may construct any works and make any improvements of which the immovable in usufruct is susceptible, or make new plantings thereon if it be rural, provided that such acts do not cause a diminution in the value of the usufruct or prejudice the right of the usufructuary. (503)

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Construction, improvements and plantings by owner  The owner has the right to do the works mentioned provided the value of the usufruct is not prejudiced  Any increase in the value of the usufruct due to the improvements will inure to the benefit of the usufructuary for he is entitled to the use and fruits of the property  The owner has no right to demand legal interest on his expenses because they were voluntarily incurred by him  The owner may even alienate his property or make changes thereon as long as he doesn’t impair the right of the usufructuary. Case doctrine  In a case where the usufruct was over the land, and the owner built buildings on the land, and the usufructuary was demanding the rents of the buildings as part of the usufruct, the Court held that the usufructuary was not entitled to the rents of the building. The usufructuary’s argument that Article 571 was applicable (right to enjoy any increase by accession) was wrong because such accession is limited to buildings erected on the land of another and does not contemplate a situation where the owner himself erected the buildings. (Gaboya v Cui)  However, the usufructuary was entitled to reasonable rental for the portion of the land occupied by the building because the construction of the building had reduced the area of the land and to that extent diminished the value of the usufruct. However, like said above, since the usufruct was reserved over the land alone, the usufructuary was not entitled to the rents of the building itslef. Art. 596. The payment of annual charges and taxes and of those considered as a lien on the fruits, shall be at the expense of the usufructuary for all the time that the usufruct lasts. (504) Art. 597. The taxes which, during the usufruct, may be imposed directly on the capital, shall be at the expense of the owner. If the latter has paid them, the usufructuary shall pay him the proper interest on the sums which may have been paid in that character; and, if the said sums have been advanced by the usufructuary, he shall recover the amount thereof at the termination of the usufruct. (505) Liability for charges and taxes

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Usufructuary must pay the annual charges and taxes which are imposed, and, therefore, are a lien upon the fruits during the term of the usufruct. Are real property taxes imposed on the fruits or on the capital? On the capital. Taxies levied on the capital must be paid by the naked owner but he has right to demand from the usufructuary the proper interest on the sums paid. If the taxes were advanced voluntarily by the usufructuary he is entitled to be reimbursed therefor at the termination of the usufruct with the right of retention until paid.

Art. 598. If the usufruct be constituted on the whole of a patrimony, and if at the time of its constitution the owner has debts, the provisions of Articles 758 and 759 relating to donations shall be applied, both with respect to the maintenance of the usufruct and to the obligation of the usufructuary to pay such debts. The same rule shall be applied in case the owner is obliged, at the time the usufruct is constituted, to make periodical payments, even if there should be no known capital. (506) Where usufruct convers entire patrimony  Art 598 applies to a o universal usufruct or one which covers the entire patrimony of the owner, and o at the time of its constitution, by donation or any other acts inter vivos, he has debts, whether secured or unsecured, or is bound to make periodical payments even if, in the latter case, there should be no known capital  The liability of the usufructuary for the debts of the naked owner is the same as that of the donee under 758 and 759 o when there is a stipulation for the payment by the usufructuary of the debts of the owner, the former is liable only for the debts contracted by the latter before the constitution of the usufruct o in the absence of stipulation, the usufructuary shall be responsible only when the usufruct was created in fraud of creditors Art. 599. The usufructuary may claim any matured credits which form a part of the usufruct if he has given or gives the proper security. If he

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has been excused from giving security or has been able to give it, or if that given is not sufficient, he shall need the authorization of the owner, or of the court in default thereof, to collect such credits. The usufructuary who has given security may use the capital he has collected in any manner he may deem proper. The usufructuary who has not given security shall invest the said capital at interest upon agreement with the owner; in default of such agreement, with judicial authorization; and, in every case, with security sufficient to preserve the integrity of the capital in usufruct. (507)

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Usufruct of matured credits  if the usufructuary has given sufficient security, he may claim matured credits forming part of the usufruct, collect them, and use and invest, with or without interest, the capital he has collected, in any manner he may deem proper  if he o has NOT given security, or o that given is not sufficient, or o he has been excused from giving security,  he may collect the credits and invest the capital which must be at interest, with the consent of the naked owner or approval of the court.  The credits which constitute the capital belong to the naked owner but the usufructuary has the right to use and invest them, and to receive the interest therefrom.  In every case, the investment of the capital must be with sufficient security to preserve its integrity

Obligation to notify owner of prejudicial acts by third persons  Art 601 speaks of any act which may be prejudicial to the ‘rights of ownership’, not merely of the ‘naked ownership’  A usufructuary has the duty to protect the owner’s interest  However, where the act affects possession, although this is in the usufructuary, he should notify the owner because the latter has an interest in defending it.  The usufructuary is also obliged to notify the owner before making an inventory of the property and of the need of urgent repairs.

Art. 600. The usufructuary of a mortgaged immovable shall not be obliged to pay the debt for the security of which the mortgage was constituted. Should the immovable be attached or sold judicially for the payment of the debt, the owner shall be liable to the usufructuary for whatever the latter may lose by reason thereof. (509) Usufruct of mortgaged immovables  The usufruct is particular, constituted by will or by acts inter vivos, whether by onerous or gratuitous title  If the usufruct is universal, the liability of the usufructuary to pay for the mortgage is governed by Art 598.

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The owner may validly mortgage the property in favor of a third person. The debt must be paid by the owner. The usufructuary may mortgage his right of usufruct which is a real right

Art. 601. The usufructuary shall be obliged to notify the owner of any act of a third person, of which he may have knowledge, that may be prejudicial to the rights of ownership, and he shall be liable should he not do so, for damages, as if they had been caused through his own fault. (511)

Case doctrine  A usufructuary has the duty to protect the owner’s interests – a usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. (NHA v CA) Art. 602. The expenses, costs and liabilities in suits brought with regard to the usufruct shall be borne by the usufructuary. (512) Obligation to pay for judicial expenses and cost  Since they are in connection with litigation over possession affecting the rights of the usufructuary, it is just that they are borne by him.  If the litigation involves only the naked ownership, the owner should assume them. CHAPTER 4 EXTINGUISHMENT OF USUFRUCT Art. 603. Usufruct is extinguished:

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(1) By the death of the usufructuary, unless a contrary intention clearly appears; (2) By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct; (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 constituting the usufruct; (7) By prescription. (513a)

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How is a usufruct extinguished? 1. Death of the usufructuary (unless contrary intention clearly appears) 2. Expiration of period or fulfillment of 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 6. Termination of right of owner (refers to the right of the person constituting the usufruct, not to a condition imposed upon the usufruct itself) 7. By prescription (acquisitive prescription by the use of a third person, not the use by the usufructuary) 8. Other causes (annulment or rescission of the contract)

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Case doctrines  Although the owner expressly authorized the usufructuaries to occupy a portion of her property “as long as they like”, the usufruct may be considered terminated by other modes or instances of extinguishment, such as the fulfillment of any resolutory condition provided in the document creating the usufruct. (Moralidad v Spouses Pernez)  The 30-year limitation on usufruct under the Old Spanish Civil Code does not apply to trusts. (Palad v Governor of Quezon Province) Art. 604. If the thing given in usufruct should be lost only in part, the right shall continue on the remaining part. (514) 

To extinguish a usufruct, the loss must be total, except as provided in Art 607 to 609

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If the loss in only partial, the usufruct continues with the remaining part. But if the partial loss may be so important as to be considered total loss, the courts shall determine.

Art. 605. Usufruct cannot be constituted in favor of a town, corporation, or association for more than fifty years. If it has been constituted, and before the expiration of such period the town is abandoned, or the corporation or association is dissolved, the usufruct shall be extinguished by reason thereof. (515a) 

The ordinary life of a corporation is 50 years. Unlike a natural person, a corporation or association may be extended indefinitely. Public policy frowns upon perpetual usufruct. The fifty-year limitation does not apply to trusts.

Art. 606. A usufruct granted for the time that may elapse before a third person attains a certain age, shall subsist for the number of years specified, even if the third person should die before the period expires, unless such usufruct has been expressly granted only in consideration of the existence of such person. (516) 

Exception here is when the usufruct has been expressly granted only in consideration of the existence of the third person

Art. 607. If the usufruct is constituted on immovable property of which a building forms part, and the latter should be destroyed in any manner whatsoever, the usufructuary shall have a right to make use of the land and the materials. The same rule shall be applied if the usufruct is constituted on a building only and the same should be destroyed. But in such a case, if the owner should wish to construct another building, he shall have a right to occupy the land and to make use of the materials, being obliged to pay to the usufructuary, during the continuance of the usufruct, the interest upon the sum equivalent to the value of the land and of the materials. (517) Where usufruct of land and building, and building destroyed  The destruction of the building terminates the usufruct on the building but no the usufruct on the land

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The usufructuary is still entitled to use the land and in place of the building, the materials thereof. (Partial loss) The usufructuary can insist on the use of the land and the materials for the remainder of the term of the usufruct as the right is granted him by law as against the wish of the owner to construct another building. While the usufruct on a building does not expressly include the land on which it is constructed, the land should be deemed included, for while there can be land without a building, there can be no building without land. The naked owner shall pay legal interest on insurance received if it has not been used in the construction of another building during the whole period of the usufruct. But he may, if he desires, relieve himself of this encumbrance by turning over the money to the usufructuary so that he may use it subject to the obligation to return the amount to the naked owner after his death as provided in article 612.

Where usufruct on building only and it is destroyed  Same rule applies although the usufruct does not cover the land for the simple reason that the use of the building necessarily involves the use of the land  But, the owner is given the preferential right to construct another building, occupy the land and make use of the material even against the objection of the usufructuary  The only right of the usufructuary is to receive during the continuance of the usufruct, legal interest on the value of the land of the materials. Case doctrines  A life usufruct constituted on the rentals of the fincas situadas located at a certain place includes the rentals both on the building and the land on which it is erected, because the building can not exist without the land. Hence, the usufruct is not extinguished by the destruction of the building, for under the law usufruct is extinguished only by the total loss of the thing subject of the encumbrance. (Vda de Albar v Carandang) Art. 608. If the usufructuary shares with the owner the insurance of the tenement given in usufruct, the former shall, in case of loss, continue in the enjoyment of the new building, should one be constructed, or shall receive the interest on the insurance indemnity if the owner does not wish to rebuild. Should the usufructuary have refused to contribute to the insurance, the owner insuring the tenement alone, the latter shall

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receive the full amount of the insurance indemnity in case of loss, saving always the right granted to the usufructuary in the preceding article. (518a) Payment of cost of insurance  Neither the owners nor the usufructuary is under obligation to insure the property in usufruct. Should they do so, and – o The usufructuary shares with the owner in insuring the property, the usufructuary shall continue to enjoy the new building to be constructed, or if the owner does not wish to rebuild, the usufructuary shall receive the legal interest on the insurance proceeds which will go to the owner. o The usufructuary refuses to contribute to the insurance, and so the owner pays it alone, the owner gets the full insurance indemnity in case of loss, the right of the usufructuary being limited to the legal interest on the value of the land and of the materials.  The article is silent where the usufructuary alone pays the insurance, or where both share in the payment thereof, as to the proportion of their contribution to the insurance. Art. 609. Should the thing in usufruct be expropriated for public use, the owner shall be obliged either to replace it with another thing of the same value and of similar conditions, or to pay the usufructuary the legal interest on the amount of the indemnity for the whole period of the usufruct. If the owner chooses the latter alternative, he shall give security for the payment of the interest. (519) Art. 610. A usufruct is not extinguished by bad use of the thing in usufruct; but if the abuse should cause considerable injury to the owner, the latter may demand that the thing be delivered to him, binding himself to pay annually to the usufructuary the net proceeds of the same, after deducting the expenses and the compensation which may be allowed him for its administration. (520) Expropriation of thing in usufruct  The expropriation of the thing does not extinguish the usufruct.  Article 609 allows the substitution of the thing by an equivalent thing.  If the thing in usufruct is expropriated for public use, the naked owner is given the option:

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o o

to replace it with another thing of the same value and of similar conditions, or to pay to the usufructuary the legal interest on the amount of indemnity for the whole period of the usufruct.  In the latter case, the owner shall give security for the payment of the interest.

Effect of bad use  Bad use of the thing in usufruct does not extinguish the right of the usufructuary whether there is security or not. The usufruct continues.  But if the bad use causes considerable injury to the owner, not to the thing itself, the owner is given the right to demand that the thing be delivered to him, binding himself to pay annually to the usufructuary the net proceeds of the same, after deducting the expenses and the compensation which may be allowed him for its administration.  This is true where the usufructuary has not given any security or the security given is insufficient especially if the owner has no property.  The second part of the provision can hardly apply where there is sufficient security for “no considerable injury” could possible be caused to the owner. Art. 611. A usufruct constituted in favor of several persons living at the time of its constitution shall not be extinguished until death of the last survivor. (521) Usufruct in favor of several persons  Usufruct is extinguished by the death of the usufructuary unless a contrary intention appears.  The usufruct is not extinguished until the death of the last survivor. As the usufruct continues, the rights of any usufructuary who dies shall accrue to the surviving usufructuaries. o The only exception is when the title constituting the usufruct provides otherwise as where the usufruct is constituted in a list and will and testament and the testator makes a contrary provision. Art. 612. Upon the termination of the usufruct, the thing in usufruct shall be delivered to the owner, without prejudice to the right of retention pertaining to the usufructuary or his heirs for taxes and

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extraordinary expenses which should be reimbursed. After the delivery has been made, the security or mortgage shall be cancelled. (522a) Obligation of usufructuary to return the thing upon termination of the usufruct  Upon the termination of the usufruct, it is the duty of the usufructuary to return the property to the naked owner.  The usufructuary is expressly granted the right of retention until he is reimbursed for the amount of taxes levied on the capital and for the increase in value caused by extraordinary repairs.  He has no right to reimbursement for useful improvements.

TITLE VII – EASEMENTS OR SERVITUDES CHAPTER ONE EASEMENTS IN GENERAL SECTION ONE – DIFFERENT KINDS OF EASEMENTS Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate. (530) Easement or servitude defined  Easement or servitude has been defined as 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.”  The definition in this article is not complete, being limited to real easement.  In view of the next article which refers to personal easement, the term may be defined as an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner or for the benefit of a community or one or more persons to whom the encumbered estate does not belong by virtue of which the owner is

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obliged to abstain from doing or to permit a certain thing to be done on his estate (whew.) Easement and servitude distinguished 1. It is said that easement refers to the right enjoyed by one, and servitude, the burden imposed upon another. 2. The two terms are used synonymously in the Civil Code although it is more partial to easement. Characteristics of easement 1. It is a real right but will affect third persons only when duly registered; 2. It is enjoyed over another immovable, never on one’s own property; 3. It involves two neighboring estates, the dominant to which a right belongs and the servient upon which an obligation rests; 4. It is inseparable from the estate to which it is attached and, therefore, cannot be alienated independently of the estate (Art 617) 5. It is indivisible for it is not affected by the division of the estate between two or more persons (Art 618) 6. It is a right limited by the needs of the dominant owner or estate, without possession; 7. It cannot consist in the doing of an act unless the act is accessory in relation to a real easement; and 8. It is a limitation on the servient owner’s rights of ownership for the benefit of the dominant owner; and therefore, it is not presumed. 

Easement gives the holder an incorporeal right on the land but grants no title thereto. Therefore, an acknowledgment of the easement is an admission that the property belongs to another.

Easement established only on immovable  Easements cannot be imposed on personal property but only on immovable (which must be understood in its common and not in its legal sense).  What the law treats of are not immovables as defined by the Civil Code but only those which are so by their nature (are really incapable of being moved) such as lands, roads, buildings, and constructions adhering to the soil. Nature of benefit to dominant estate  Easement can exist only when the servient and dominant estates belong to different owners.

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There can be no easement without a burden on an estate for the benefit of another immovable belonging to a different owner or of a person or group of persons. The dominant estate cannot be the servient estate at the same time. It is not essential that the benefit be very great, it being sufficient that there is a determinate use or utility in favor of a dominant estate over an estate belonging to another. The important thing is that it exists and can be exercised. On the other hand, the benefit should not be so great as to be inconsistent with the general right of ownership of a person, amounting to a taking of his property.

Easement Real right, whether registered or not, and whether it is real or personal Imposed only on real property Limited right to the use of real property of another but without the right of possession (“without any exclusive possession or occupation”)

Lease Real right only when it is registered, or when its subject is real property and the duration exceeds one year May involve real or personal property Limited right to both the possession and use of another’s property (“exclusive possession”)

Easement Imposed only on real property

Usufruct May involve real or personal property Limited to a particular or specific use Includes all the uses and fruits of the of the servient estate property Non-possessory right over an Right of possession in an immovable immovable or movable Not extinguished by the death of the As a rule, extinguished by the death dominant owner of the usufructuary  Both usufruct and easement are real rights, whether registered or not, and are transmissible. Case doctrines  The power of eminent omain encompasses not only the taking of title to and possession of the expropriated property but likewise covers even the imposition of a mere burden upon the owner of the condemned property. Where the nature of the easement practically deprives the owners of the property’s normal beneficial use, notwithstanding the fact

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that the expropriator only occupies the sub-terrain portion, it is liable to pay not merely an easement fee but rather the full compensation for land. (NPC v Ibrahim) Art. 614. Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong. (531) Classifications of easement 1. As to recipient of benefit a. Real – when the easement is in favor of another immovable (Art 613); or b. Personal – when it is in favor of a community or of one more persons (Art 614). Thus, it maybe public or private. 2. As to its source a. Voluntary – when the easement is established by the will or agreement of the parties or by a testator (Art 619); b. Legal – when it is imposed by law either for public use or in the interest of private persons (Art 637-687); or c. Mixed – when it is created partly by will or agreement and partly by law. 3. As to its exercise a. Continuous – see Article 615; or b. Discontinuous 4. As to whether or not its existence is indicated a. Apparent; or b. Non-apparent 5. As to the duty of servient owner a. Positive – see Article 616; or b. negative Real and personal servitudes  A servitude may be established for the benefit: 1. of a particular estate and consequently, for its owner; (real or predial) 2. of a person or group of persons without being the owner or owners of a dominant estate. (personal)  Unlike a real easement, personal easement does not require two immovables. An example of a personal easement is a right of way granted to certain persons and their family, friends, servants, and jeeps. The servitude is for the benefit alone of the persons enumerated and

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not a predial servitude that inures to the benefit of whoever owns the dominant estate. Hence, the owner of the servient estate may refuse to extend the said easement to the successors-in-interest of the persons for whose benefit the servitude exists. (Jabonete v Monteverde) Public and private easements  Personal easements may be: 1. Public, if it is vested in the public at large or in some class of indeterminate individuals (like the right of the public to a highway over a land of private ownership) 2. Private, if it is vested in a determinate individual or certain persons (like a right of way vested in the owner of one parcel of land over an adjoining parcel of land) Case doctrines  When a person is allowed to construct his house on the land of another to facilitate his gathering of fruits, this would be in the nature of a personal easement under Article 614. (Alcantara v Reta) Art. 615. Easements may be continuous or discontinuous, apparent or non-apparent. Continuous easements are those the use of which is or may be incessant, without the intervention of any act of man. Discontinuous easements are those which are used at intervals and depend upon the acts of man. Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same. Nonapparent easements are those which show no external indication of their existence. (532) Continuous and discontinuous easements  For an easement to be continuous, it is not necessary that the use be incessant; it is sufficient that the use may be so. o Examples are the right to support a beam on another’s wall which really exists continuously and the right of aqueduct which may be used only on certain days depending on the need for water but which is continuous since its use does not depend upon the intervention of man.

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

An example of discontinuous servitude is the right of way which is used at intervals because it is physically impossible that man shall continually poass over the way.  The easement itself, whether continuous or discontinuous, exists continuously whether it is being used or not, but its exercise may be continuous or discontinuous, or there may be no exercise at all.  The distinction lies in the fact that in continuous easements, the exercise or enjoyment can be had without the intervention of man while in discontinuous easements, such exercise or enjoyment requires the intervention of man.  In both easements, the benefit and burden exists from the moment the easements are created. Case doctrine  Easements are either continuous or discontinuous according to the manner they are exercisd, not according to the presence of apparent signs or physical indications of the existence of such easements. Thus, an easement is continuous if its use is, or may be, incessant without the intervention of any act of man, like the easement of drainage; and it is discontinuous if it is used at intervals and depends on the act of man, like the easement of right of way. (Bogo-Medellin v CA) Apparent and non-apparent easements  For an apparent easement, it is not necessary that its sign be seen; it is sufficient if it may be seen or known on inspection. o The sign or signs may be encountered in the dominant or servient estate, according to the circumstances.  An example of a non-apparent easement is a right of way when there is no indication of its existence.  A right of way is apparent when there is a visible road or path to show its exercise.  In general, negative easements are non-apparent. Art. 616. Easements are also positive or negative. A positive easement is one which imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself, and a negative easement, that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. (533)

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

 

A positive easement is one which imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself. o Example: the easement of which the right of way which imposes upon the owner of the servient estate the duty to allow the use of said way. A negative easement is that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. o Example: easement of light and view whereby the owner of the servient estate is prohibited from obstructing the passage of light. It may also be positive depending upon the manner by which it is exercised. When the opening or window is made on another’s wall (wall of servient estate) or on a party wall, the easement acquired is positive because the owner of the wall allows the servitude to burden his wall. If the window is through one’s own wall (wall of the dominant estate) which does not extend over another’s property (servient estate), the easement is negative.

Case doctrines  Restrictive covenants are not, strictly speaking synonymous with easements, but a case of servitudes or burdens, sometimes characterized to be negative easements or reciprocal negative easements. Negative easement is the most common easement created by covenant or agreement whose effect is to preclude the owner of the land from doing an act, which, if no easement existed, he would be entitled to do. (Fajardo v Freedom to Build)  Courts generally view restrictive covenants with disfavor, but still sustain them where the covenants are reasonable, not contrary to law, or not in restraint of trade. If the covenant aims to promote aesthetics, health, and privacy or to prevent overcrowding, then the covenant must be sustained.  A suit for equitable enforcement of a restrictive covenant can only be made by one for whose benefit it is intended. It is thus not normally enforceable by one who has no right nor interest in the land for the benefit of which the restriction has been imposed. Thus, developer of a subdivision can enforce restrictions, even as against remote grantees of lots, only if he retains part of the land. (Fajardo v Freedom)

Positive and negative easements

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Art. 617. Easements are inseparable from the estate to which they actively or passively belong. (534) Quality of inherence or inseparability  Servitudes are inseparable from the estate to which they actively or passively belong, being accessory things whose very existence depends upon the principal thing (immovable).  Hence, they are intransmissible in the sense that they cannot be alienated or mortgaged independently of the estate.  An easement cannot be the object of usufruct because it has no existence independent of the immovable to which it attaches.  If the dominant estate is alienated, such alienation carries with it also the easements established in its favor even if they are not annotated as an encumbrance on the certificate of title.  An easement is extinguished or cut-off, however, by the registration of the servient estate under the Torrens system without the easement being annotated on the corresponding certificate of title. A registered owner or subsequent purchaser of registered land holds his certificate of title free from all encumbrances except only those noted in said certificate and the statutory liens. o But if the existence of an easement was known to the transferee or grantee of the servient estate, such knowledge is equivalent to registration. Case doctrines  A vendee on real property on which a servitude or an easement of right of way exists does not acquire the right to close that servitude to prevent the neighboring estates from using it. (Solid Manila v Bio Hong) Art. 618. Easements are indivisible. If the servient estate is divided between two or more persons, the easement is not modified, and each of them must bear it on the part which corresponds to him. If it is the dominant estate that is divided between two or more persons, each of them may use the easement in its entirety, without changing the place of its use, or making it more burdensome in any other way. (535) Quality of indivisibility  Easement as a right is indivisible.

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  

Accordingly, the partition between two or more persons of either the servient or dominant estate does not affect the existence of the servitude which continues in its entirety. If the servient estate is divided, each new owner must bear the easement but only with respect to the part corresponding to him. If the dominant estate is divided, each owner can exercise the whole easement over each of the servient estates subject to the condition that the place of easement shall not be changed and the easement shall not be more burdensome. o A person entitled to a right of way may do whatever is necessary to make it convenient for his use but he cannot deviate therefrom. The easement is not considered made more burdensome by the mere increase in the owners of the dominant estates.

Art. 619. Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements. (536) Legal and voluntary easements  This article gives the two kinds of easements according to source.  The courts cannot impose or constitute any servitude where none existed.  They can only declare its existence if in reality it exists by law or by the will of the owners.  There are no judicial easements.  Voluntary easements must be recorded in the Registry of Property in order not to prejudice third persons.

SECTION TWO - MODES OF ACQUIRING EASEMENTS Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. (537a) Modes of acquiring easements 1. By title. All easements. a. Continuous and apparent easements (Art 620) b. Continuous and non-apparent easements (Art 622) c. Discontinuous easements, whether apparent or nonapparent

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2. 3. 4. 5.

By prescription of ten years – only continuous and apparent easements By deed of recognition (Art 623) By final judgment By apparent sign established by the owner of two adjoining estates (Art 624)

Acquisition by title or prescription  Only continuous and apparent easements may be acquired either by virtue of a title or by prescription in 10 years.  By title, it refers to the juridical act which gives birth to the easement, such as law, donation, contract and will of the testator.  This article fixes ten years as the period of prescription, regardless of good faith or bad faith of the possessor and whether or not he has just title.  The general rules on prescription do not apply, the only requirement being that there be adverse possession of the easement for ten years. Case doctrines  Prescription as a mode of acquisition requires the existence of the following: 2. Capacity to acquire by prescription 3. Thing capable of acquisition by prescription 4. Possession of the thing under certain conditions  Under claim of title (en concepto de dueno)  Possession not merely tolerated by owner 5. Lapse of time provided by law (National Power Corp v Campos) Art. 621. In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate; and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement. (538a) Computation of the prescriptive period

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If the easement is positive, the period is counted from the day on which the owner of the dominant estate began to exercise it o From the day a window was built in a party wall If the easement is negative, from the day on which a notarial prohibition was made on the servient estate Under article 622, non-apparent easements may not be acquired by prescription. Negative easements are essentially non-apparent. However, article 621 provides the prescriptive period for negative easements. The notarial prohibition may be taken as making the easement apparent, and therefore, prescriptible.

Computation in case of easement of light and view  If made on one’s own wall and the wall does not extend over the property of another, the easement is negative because the owner is merely exercising his inherent right of dominion and not an easement. o The servient owner cannot close it up; otherwise he will be liable for trespass. o But the negative easement is not automatically vested. The owner must make the prohibition required upon the proprietor of the adjoining land or tenement to prevent him from obstructing the light and view. o If the latter consents to such prohibition and the period fixed by law expires, the easement will be acquired by prescription. There is no true easement for as long as the right to prohibit its exercise exists.  If made through a party wall or on one’s own wall which extends over the neighboring estate, the easement acquired is positive because the owner of the latter estate who has a right to close it up allows an encumbrance on the property. o The period of prescription shall be counted from the time of the opening of the window. Art. 622. Continuous non-apparent easements, and discontinuous ones, whether apparent or not, may be acquired only by virtue of a title. (539) Acquisition only by title  Continuous and apparent easements are the only easements that can be acquired by prescription because they are the only ones the

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

possession of which fulfills two important requisites required by law for prescription – possession be public and continuous. The easements mentioned in Art 622 may be acquired by title, not by prescription because their possession or exercise is either not public (non-apparent) such as easement of lateral and subjacent support, or it is public but not continuous or uninterrupted (discontinuous), like a right of way if there is a visible path. However, for legal purposes, the easement of aqueduct shall be considered as continuous and apparent, although it is not really so.

Art. 623. The absence of a document or proof showing the origin of an easement which cannot be acquired by prescription may be cured by a deed of recognition by the owner of the servient estate or by a final judgment. (540a) Art. 624. The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons. (541a) Alienation by same owner of two estates with sign of existence of servitude  This contemplates a situation where two estates between which there exists an apparent sign (like a window or road) of an easement belong to the same owner.  What the law requires is that the sign indicates the existence of a servitude although there is no true servitude there being only one owner  In case the owner alienates either of them or both with the result that the ownership thereof is divided, the easement shall “continue” unless the contrary has been stipulated in the title of conveyance of either of them or the sign removed before the execution of the deed o The existence of the apparent sign is equivalent to a title if no objection has been made by the servient owner for an implied contract that the easement should be constituted is deemed to exist between the new owners

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The dominant owner can oppose the owner of the servient estate from doing anything which would be inconsistent with his obligation to respect the easement  If the lots are owned by two different owners, a notarial prohibition should be effected (Atty Abrenica) This article applies in case of the division of a common property by the co-owners as the effect is the same as an alienation, or there is only one estate and a part thereof is alienated. This article is not applicable in case the two estates or portions of the same estate remain or continue to be in the same owner after alienation or partition o

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Case doctrine  Where two adjoining estates were formerly owner by just one person who introduced improvements on both, such that the wall of the house constructed on the first estate extends to the wall of the camarin on the second estate; and at the time of the sale of the first estate, there existed on the wall of the house, doors and windows (which serve as passages for light and view), there being no provision in the deed of sale that the easement of light and view will not be established, the case is covered by 624.  The existence of doors and windows on the aforesaid wall of the house is equivalent to a title that characterizes its existence.  But while the law declares that the easement is to “continue”, the easement actually arises for the first time only upon alienation of another estate, inasmuch as before that time there is no easement to speak of, there being but one owner of both estates. (Gargantos v Tan Yanon) Art. 625. Upon the establishment of an easement, all the rights necessary for its use are considered granted. (542) Rights granted by easement  All easements carry with them all the rights necessary for their use and exercise  Since these accessory rights or accessory easements exist solely by virtue of and for the use of the servitude which can be considered as the principal one, they cease upon the termination of the servitude

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Art. 626. The owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previously established. (n)

2. 3. 4.

Immovable to be benefited by easement, and manner of its exercise  The rule in the first sentence is just because if the owner of the dominant estate is allowed to use the servitude for the benefit of other adjoining lands subsequently acquired, or for others, that would make the easement more onerous and beyond the intention of the parties  If the easement has been constituted in general terms, only the rights which are reasonably necessary and convenient for the use contemplated and would case the least burden to the servient estate are granted.  Where the purpose of the easement or the manner of its exercise is defined by the title creating it, the exercise of the easement must be consistent with such purpose or manner

SECTION THREE – RIGHTS AND OBLIGATIONS OF THE OWNERS OF THE DOMINANT AND SERVIENT ESTATES Art. 627. The owner of the dominant estate may make, at his own expense, on the servient state any works necessary for the use and preservation of the servitude, but without altering it or rendering it more burdensome. For this purpose he shall notify the owner of the servient estate, and shall choose the most convenient time and manner so as to cause the least inconvenience to the owner of the servient estate. (543a) What are the rights of the dominant owner? 1. Exercise all the rights necessary for the use of the easement 2. Make on the servient estate all works necessary for the use and preservation of the servitude 3. Renounce the easement if he desires to exempt himself from the contribution to necessary expenses 4. Ask for mandatory injunction to prevent impairment of his of the easement What are the obligations of the dominant owner? 1. Cannot alter the easement or render it more burdensome

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

What are the rights of the servient owner? 1. Retain the ownership of the portion of the estate on which the easement is established 2. Make use of the easement, unless there is an agreement to the contrary 3. Change the place or manner of the use of the easement, provided it be equally convenient What are the obligations of the servient owner? 1. Cannot impair the use of the easement 2. Contribute to the necessary expenses in case he uses the easement, unless there is an agreement to the contrary Right of the dominant owner to make necessary works  Right granted by 627 is subject to the following conditions: 1. Works shall be at his expense and are necessary for the use and preservation of the servitude 2. They do not alter or render the servitude more burdensome; 3. The dominant owner, before making the works, must notify the servient owner, and 4. They shall be done at the most convenient time and manner as to cause the lease inconvenience to the servient owner Case doctrine  (Goldcrest v Cypress Gardens) Art. 628. Should there be several dominant estates, the owners of all of them shall be obliged to contribute to the expenses referred to in the preceding article, in proportion to the benefits which each may derive from the work. Any one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of the others. If the owner of the servient estate should make use of the easement in any manner whatsoever, he shall also be obliged to contribute to the expenses in the proportion stated, saving an agreement to the contrary. (544)

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Obligation to contribute to expenses of necessary works This article contemplates several dominant estates.  All the owners shall share the expenses in proportion to the benefits derived by each estate from the works and not in proportion to their respective interests. The benefits shall be presumed equal in the absence of any agreement or proof to the contrary. The easement of right of way ordinarily gives the same benefit  An owner may exempt himself from contributing to the expenses by renouncing the easement in favor of the others.  What about the servient owner? Well, he shall be obliged to contribute to the expense except when there is a stipulation to the contrary, should he make use of the easement in any manner whatsoever. If he bound himself to bear the cost of the work, he may free himself form the obligation by renouncing his property to the dominant owner (Art 693) Art. 629. The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude. Nevertheless, if by reason of the place originally assigned, or of the manner established for the use of the easement, the same should become very inconvenient to the owner of the servient estate, or should prevent him from making any important works, repairs or improvements thereon, it may be changed at his expense, provided he offers another place or manner equally convenient and in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have a right to the use of the easement. (545) Obligation of servient owner not to impair servitude  The servient owner may abstain from constructing works or performing any act which will impair, in any manner whatsoever, the use of the servitude.  An injunction lies at the instance of the dominant owner to prohibit the servient owner from impairing the use of the servitude Right of servient owner to change place or manner of easement  While the servient estate cannot impair the use of the servitude, he may change at his expense the place or manner for its use provided the following requisites are present: 1. The place or manner has become very inconvenient to him or prevents him from making important works thereon;

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2. 3.

He offers another place or manner equally convenient; and No injury is caused by the chance to the dominant owner or to whoever may have a right to the use of the easement.

Art. 630. The owner of the servient estate retains the ownership of the portion on which the easement is established, and may use the same in such a manner as not to affect the exercise of the easement. (n) Right of servient owner to use easement  The servient owner preserves his dominion over the portion of his estate on which the easement is established  This is true although the indemnity consists of the value of the land occupied and the amount of the damage to the servient estate (Art 649)  He may use the easement subject to the condition that he does not impair the rights of the dominant owner. Case doctrine  When the trial court found that the person’s right to continue to use the septic tank ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest, the Supreme Court said that this is contrary to law. (Tanedo v Bernad)

SECTION FOUR – MODES OF EXTINGUISHMENT OF EASEMENTS Art. 631. Easements are extinguished: (1) By merger in the same person of the ownership of the dominant and servient estates; (2) By nonuser for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place; (3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number; (4) By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional;

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

(5) By the renunciation of the owner of the dominant estate; (6) By the redemption agreed upon between the owners of the dominant and servient estates. (546a) What are the modes of extinguishment of easements? 1. By merger  It is not necessary that it be with respect to the full extent of the tenement but only with respect to that part affected by the servitude or that part for the benefit of which the servitude was established  The merger must be absolute and complete in one and the same person and not by virtue of other real rights less than full ownership. (where the merger is temporary, as when it is subject to a resolutory condition, there is only a suspension but not an extinguishment of the servitude.)  If the servient owner becomes a co-owner of the dominant estate, there is no merger for he has acquired only a part interest therein.  If the dominant sells a retro the whole immovable to the servient, the easement is not extinguished but only suspended. The servitude is revived when the dominant redeems the property.  What if the dominant sells absolutely to the servitude, buys it back, then sells it to a third person. There is no revival here because it was already unconditionally extinguished by the sale of the property to the servient. But if the sale to servient by dominant was rescinded or annulled, there is no extinguishment by merger. 2. By non-user for ten years  This mode is applicable only to easements that have been in use and later abandoned, for one cannot discontinue using what one has never used  Some legal easements (natural drainage) may be extinguished by non-user, but only with respect to the actual form or manner in which they had been exercised, and the right or the power to claim the exercise of legal easements does not prescribe, as occurs especially in the case of the right of way and easement of aqueduct. (Francisco v Paez)  If the easement is discontinuous (right of way), the period of ten years shall be computed from the day it ceased to be used.  If continuous (natural drainage), from the day on which an act contrary to the same took place (like construction of a dam which blocks natural drainage)

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3.

4. 5.

6.

The non-use must be voluntary on the part of the dominant owner and not due to fortuitous events beyond his control unless the nonuse is due to the impossibility of use under no 3  What’s the basis? Well, it’s presumptive renunciation. o So, the proof of non-user must be undubitable particularly where the easement is perpetual in character because of its annotation in the Torrens title. Thus, the mere non-use of a passageway by the dominant owner who has gained direct access to another way does not extinguish the easement of right of way. In the absence of any evidence that could point to mutual agreement to the discontinuance of the easement annotated on the title, its continued existence must be upheld  The use by a co-owner of the dominant estate benefits all the other co-owners and prevents prescription as to them. Impossibility of use  When the condition of either or both of the estates which makes impossible the use of the easement is irreparable, whether caused by fortuitous events or not, the servitude is absolutely extinguished o Otherwise, the impossibility of use merely suspends the servitude until such time when it can be used again By expiration of term or fulfillment of resolutory condition By renunciation  The renunciation or waiver must be specific, clear and express.  This is particularly true for discontinuous easements such as right of way.  The waiver must be at least such as may be obviously gathered from positive acts – if not formal and solemn. The mere refraining from claiming the right, without any positive acts imply a real waiver, is not sufficient for the purpose although it may constitute non-use. A clear case of implied waiver is the act of covering up a window by the dominant owner and yet this act does not ipso facto extinguish the easement, but only serves to make the starting point for prescription. (Francisco v Paez)  Where the easement is in favor of a particular group of persons, the voluntary renunciation thereof by some of them will not affect the right of the others. By redemption

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 7.

it must be by virtue of an agreement between the owners of the dominant and servient estates under which the servitude would be extinguished By other causes  Annulment, rescission, abandonment, etc  Registration of the servient estate under the Torrens system without the easement being annotated in the title

Some case doctrines  Alienation of the dominant and servient estates to different persons is not one of the grounds for extinguishment of the easement. (Tanedo v Bernad)  Absent a statement abolishing or extinguishing the easement, then the easement is continued by operation of law. (Tanedo v Bernad)  An easement is perpetual in character when it is annotated on all the transfer certificates of title issued. Since there is no evidence that would point to a mutual agreement between any of the parties with respect to the discontinuance or obliteration of the easement annotated on the titles, the continued existence of the easement must be upheld and respected. (Benedicto v CA)  NB: When the easement is a legal easement, it need not be annotated in the title. A legal easement is one mandated by law, constituted for public use or for private interest and becomes a continuing property right. It is inseparable from the estate to which it belongs. So, there’s no need to annotate in the title. (Villanueva v Velasco)  A voluntary easement of right of way, like any other contract, could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. As it is like any other contract, it is generally effective between the parties, their heirs and assigns, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation, or by provision of law. (Unisource v Chung, 2009)  If there are easement or other rights appurtenant to a parcel of registered land which for any reason have failed to be registered, such easement or rights shall remain so appurtenant notwithstanding such failure, and shall be held to pass with the land until cut off or extinguished by the registration of the servient estate or in any other manner. An easement is cut off or extinguished by the registration of the servient estate under the Torrens system without the easement being

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annotated on the corresponding certificate of title, pursuant to Sec 39 of Act 496 (Purugganan v Paredes) o EXCEPTION: When the person who registers the servient estate has ACTUAL knowledge that an easement exists. (One can’t rely on the face of the title if one has actual knowledge of facts which should compel him to do further investigation) Art. 632. The form or manner of using the easement may prescribe as the easement itself, and in the same way. (547a) Prescription of form or manner of using easement  The form or manner (or mode) of using the easement is different from the easement itself or the right to exercise it  Both may be lost by prescription  Some legal easements, however, do not prescribe but the form or manner of using all easements including legal easements may be lost or acquired by prescription Art. 633. If the dominant estate belongs to several persons in common, the use of the easement by any one of them prevents prescription with respect to the others. (548) Where dominant estate owned in common  Easements are indivisible  Hence, the use by a co-owner inures to the benefit of all the other coowners and prevents prescription as to shares of the latter  In other words, the use by a co-owner is deemed to be used by each and all the co-owners

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

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Legal easements are easements imposed or mandated by law, and which have for their object: o either public use or o the interest of private properties They become a continuing property right

Kinds of legal easements 1. Public legal easements or those for public or communal use 2. Private legal easements or those for the interest of private persons or for private use, which include those relating to a. Waters b. Right of way c. Party wall d. Light and view e. Drainage f. Intermediate distances g. Against nuisance h. Lateral and subject support Case doctrine  See Villanueva v Velasco cited in Art 631 Art. 635. All matters concerning easements established for public or communal use shall be governed by the special laws and regulations relating thereto, and, in the absence thereof, by the provisions of this Title. (550) Art. 636. Easements established by law in the interest of private persons or for private use shall be governed by the provisions of this Title, without prejudice to the provisions of general or local laws and ordinances for the general welfare. These easements may be modified by agreement of the interested parties, whenever the law does not prohibit it or no injury is suffered by a third person. (551a) Governing laws 1. Public legal easements – they are governed primarily by the special laws and regulations relating thereto, and by the Civil Code (634-687), inclusive. 2. Private legal easements

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a. b. c.

By agreement of the interested parties provided it is not prohibited by law or injurious to a third person In the absence of agreement, by the provisions of general and local laws and ordinances for the general welfare; and In default of a and b, by articles 634 to 687, inclusive of the Civil Code.

Case doctrine  Where the land was originally public land, and awarded by free patent with a reservation for a legal easement of a right-of-way in favor of the government, just compensation need not be paid for the taking of a part thereof for public use as an easement of a right of way, unlike if the land were originally private property. (NIA v CA)

SECTION TWO – EASEMENTS RELATING TO WATERS Art. 637. Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stones or earth which they carry with them. The owner of the lower estate cannot construct works which will impede this easement; neither can the owner of the higher estate make works which will increase the burden. (552) Legal easements relating to waters 1. Natural drainage (637) 2. Drainage of buildings (674) 3. Easement on riparian banks for navigation, floatage, fishing, salvage, and towpath (638) 4. Easement of a dam (639, 647) 5. Easement for drawing water or for watering animals (640-641) 6. Easement of aqueduct (642-646) 7. Easement for the construction of a stop lock or sluice gate (647) Natural drainage of lands  This article imposes a natural easement upon the lower estates which are obliged to receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stones or earth carried by the waters.  This easement is a continuous one and may be extinguished by nonuser for the period of 10 years required by law. Thus, if a dike was

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constructed by the servient owner (an act contrary to the easement), the action to destroy the dike is barred if brought only after 1 years. Duty of servient owner – the owner of the lower estate cannot construct works which will impede this easement, such as walls, ditches or fences, or a dam which blocks the natural flow of the waters. The dominant owner may demand their removal or destruction and recover damages. The servient owner may construct works to regulate the flow of waters, but not those which will impede the easement. Duty of dominant owner – the owner of the higher tenement cannot make works which will increase the burden. If the waters are the result of artificial development, or are the overflow from irrigation dams, or proceed from industrial establishments recently set up, the owner of the lower estate shall be entitled to compensation for his loss or damage. o But the dominant owner is not prohibited from cultivating his land or constructing works to regulate the descent of the waters to prevent erosion to his land and as long as he does not impede the natural flow of the waters and increase the burden of the lower estate, he is not liable for damages.

Remember Remman v CA? The case with the pig shit? It also said that tax returns per se could not reflect the total amount of damages suffered by a party, as income losses from a portion of his property could be offset by any profit derived from the rest of said property or from other sources of income. Art. 638. The banks of rivers and streams, even in case they are of private ownership, are subject throughout their entire length and within a zone of three meters along their margins, to the easement of public use in the general interest of navigation, floatage, fishing and salvage. Estates adjoining the banks of navigable or floatable rivers are, furthermore, subject to the easement of towpath for the exclusive service of river navigation and floatage. If it be necessary for such purpose to occupy lands of private ownership, the proper indemnity shall first be paid. (553a) Public easements on banks of river  Banks of rivers and streams, whether they are of public or private ownership, are subject to easement of public use for: 1. Navigation 2. Floatage 3. Fishing

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Salvage With respect to estates adjourning banks of navigable rivers, also to easement of towpath. If the land is of public ownership, there is no indemnity; if of private ownership, the proper indemnity shall first be paid before it may be occupied. Riparian owners cannot be required to subject their property to the easement for the benefit of the public without prior indemnity. The width of the zone subject to the easement is 3 meters throughout the entire length of the bank along its margin. The easement established by Article 638 does not apply to canals or esteros.

Art. 639. Whenever for the diversion or taking of water from a river or brook, or for the use of any other continuous or discontinuous stream, it should be necessary to build a dam, and the person who is to construct it is not the owner of the banks, or lands which must support it, he may establish the easement of abutment of a dam, after payment of the proper indemnity. (554) Abutment of buttress of a dam  A person who needs to build a dam to divert or take water from a river or brook but is not the owner of the banks or lands which must support the dam, may be allowed the easement of abutment or buttress of a dam (estribo de presa)  He must seek the permission of the owner, and in case of the latter’s refustal, he must secure authority from the proper administrative agency which will conduct the necessary investigation in which all interested parties are given opportunity to be heard. In establishing the easement, the proper indemnity must be paid.  Where the construction of a dam is unauthorized, the same can be considered a private nuisance and may be lawfully destroyed or removed by the injured landowner or by any persona acting under his directions. Case doctrine  An easement of buttress can be imposed by administrative authority with respect to land lying adjacent to public or private waters; but in such case it is required that an investigation of record shall be made before the easement of buttress is decreed. The making of the

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investigation of record is an essential prerequisite to the exercise of the power. (Solis v Pujeda) Art. 640. Compulsory easements for drawing water or for watering animals can be imposed only for reasons of public use in favor of a town or village, after payment of the proper indemnity. (555) Art. 641. Easements for drawing water and for watering animals carry with them the obligation of the owners of the servient estates to allow passage to persons and animals to the place where such easements are to be used, and the indemnity shall include this service. (556) Drawing water or watering animals  This is a personal easement which includes the accessory easement of passage or right of way of persons and animals to the place where the easement is to be used.  Requisites are: 1. Must be imposed for reasons of public use; 2. Must be in favor of a town or village; and 3. Must be payment of proper indemnity. Art. 642. Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through the intervening estates, with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend. (557) Art. 643. One desiring to make use of the right granted in the preceding article is obliged: (1) To prove that he can dispose of the water and that it is sufficient for the use for which it is intended; (2) To show that the proposed right of way is the most convenient and the least onerous to third persons; (3) To indemnify the owner of the servient estate in the manner determined by the laws and regulations. (558) Art. 644. The easement of aqueduct for private interest cannot be imposed on buildings, courtyards, annexes, or outhouses, or on orchards or gardens already existing. (559)

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Easement of aqueduct… what is it?!  Easement of aqueduct is the right arising from a forced easement by virtue of which the owner of an estate who desires to avail himself of water for the use of said estate may make such waters pass through the intermediate estate with the obligation of indemnifying the owner of the same and also the owner of the estate to which the water may filter or flow.  The easement is provided in Article 642. It gives the right to make water flow through or under intervening or lower estates. Requisites? The person desiring to make use of the easement must: 1. Prove that he has the capacity to dispose of the water; 2. Prove that the water is sufficient for the use intended; 3. Show that the proposed right of way is the most convenient and the least onerous to third persons; and 4. Pay indemnity to the owner of the servient estate.  But where the number of years that have elapsed since the easement had first come into existence and the subsequent changes in ownership of lots involved would make it impossible to present proof of indemnity to the owner of the servient estate, this requisite has been deemed to be complied with. (Salazar v Gutierrez) 

The easement cannot be imposed over buildings, courtyards, annexes or gardens if the easement is for private interest.

Case doctrines  The Spanish Law of Waters allows the creation of a compulsory easement of aqueduct for the purpose of establishing or extending an irrigation system, and there is nothing to the contrary in the Civil Code.  The registration of the servient lot without the corresponding registration of the easement of aqueduct on the title cannot summarily terminate it 30 years thereafter where the original registered owner of the servient lot allowed the easement to continue in spite of such non-registration.  The least that can be said is that he either recognized its existence as a compulsory servitude on his estate or voluntarily agreed to its establishment and continuance. And subsequent purchasers of the servient estate cannot capitalize on the absence of annotation on the title where they are aware of the existence of the easement and likewise

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allowed it to continue for 26 years after they acquired title. (Salazar v Gutierrez) Art. 645. The easement of aqueduct does not prevent the owner of the servient estate from closing or fencing it, or from building over the aqueduct in such manner as not to cause the latter any damage, or render necessary repairs and cleanings impossible. (560) Right of owner of servient estate  The servient owner may close or fence his estate, or build over the aqueduct so long as no damage is caused to the aqueduct or the necessary repairs and cleaning of the same are not rendered impossible.  He can construct works he may deem necessary to prevent damage to himself provided he does not impede or impair, in any manner whatsoever, the use of the easement – just like the owner of the lower estate on which an easement of natural drainage has been established. If he does impair, the dominant owner may ask for the removal or destruction of such works with a right to indemnity for damages. Art. 646. For legal purposes, the easement of aqueduct shall be considered as continuous and apparent, even though the flow of the water may not be continuous, or its use depends upon the needs of the dominant estate, or upon a schedule of alternate days or hours. (561) Easement considered as continuous and apparent  For legal purposes, the easement is considered continuous and apparent and therefore, may be susceptible of acquisitive prescription. Art. 647. One who for the purpose of irrigating or improving his estate, has to construct a stop lock or sluice gate in the bed of the stream from which the water is to be taken, may demand that the owners of the banks permit its construction, after payment of damages, including those caused by the new easement to such owners and to the other irrigators. (562) Construction of a stop lock or sluice gate  In Article 639, the purpose of building a dam is to divert water from a river or brook. Here, the purpose of the construction is to take water for irrigation, or to improve an estate.

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In both cases, the construction is on the estate of another and proper indemnity has to be paid. Furthermore, no damage must be caused to third persons.

Art. 648. The establishment, extent, form and conditions of the servitudes of waters, to which this section refers, shall be governed by the special laws relating thereto insofar as no provision therefor is made in this Code. (563a)

SECTION THREE – EASEMENT OF RIGHT OF WAY Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity. Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate. In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance. This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts. (564a) Art. 650. The easement of right of way shall be established at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. (565) Easement of right of way… DEFINED!  Easement of right of way is the right granted by law to the owner of an estate which is surrounded by other estates belonging to other persons and without an adequate outlet to a public highway to demand that he be allowed a passageway throughout such neighboring estates after payment of the proper indemnity. Requisites of the easment (based on de Leon)

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1. 2. 3. 4. 5. 6.

Claimant must be an owner of enclosed immovable or one with real right No adequate outlet to a public highway Right of way must be absolutely necessary The isolation must not be due to the claimant’s own act The easement must be established at the point least prejudicial There must be payment of proper indemnity

Claimant must be an owner of enclosed immovable or one with real right  Not only the owner but any person who by virtue of a real right may cultivate or use an immovable, may demand a right of way. A usufructuary may demand a right of way. 1. A mortgagee is not entitled to demand because it is necessary that the land be cultivated or used by virtue of a right like that of a usufruct 2. A mere lessee cannot demand the legal servitude of way because his action is against the lessor who is bound to maintain him in the enjoyment of the lease. However, if the lessee registers the lease in the Registry of Property, it becomes a real right, and the lessee would then be entitled to demand the right of way. No adequate outlet to a public highway  Covers cases when there is absolutely no outlet or access, or even when there is one, the same is not adequate (like when it’s dangerous, very costly, etc)  The owner of the servient estate cannot obstruct the use of the easement if the proposed new location for it is farther and is not as convenient. Right of way must be absolutely necessary  The right cannot be claimed merely for the convenience of the owner of the enclosed estate.  Owner must show that the compulsory easement is absolutely necessary for the normal enjoyment of his property. Even if necessary but it can be satisfied without imposing the servitude, the same should not be imposed.  The easement can be established for the benefit of a tenement with an inadequate outlet, but not when the outlet is merely inconvenient.

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Isolation must not be due to the claimant’s own act  If he constructs a permanent structure and effectively blocks himself out from the pubic highway, then he is stupid and he will not be granted an easement. The easement must be established at the point least prejudicial to the servient estate  The shortest is not always the least prejudicial.  The criterion of least prejudicial shall be observed although the distance may not be the shortest or is even the longest.  In other words, this is the TEST - the one where the way is shortest and will cause the least damage should be chosen. o But if these two circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it would not be the shortest.  Between a right of way that will demolish a house and another one which will merely cut down a tree (yet is a longer route to the highway), the latter shall prevail.  The rule is different in eminent domain proceedings wherein the grantee of the power of eminent domain can choose as he pleases, as long as it is not capricious and wantonly injurious. Proper indemnity  The right can be acquired only after the proper indemnity has been paid.  If the passage is of continuous and permanent nature (continuous for all the needs of the dominant estate), the indemnity consists of the value of the land occupied plus amount of damages caused to the servient estate; and  If it is temporary (limited to the necessary passage for the cultivation of the enclosed estate and for the gathering of its crops through the servient estate), indemnity consists in the payment of the damage caused to the servient estate.  Even if the easement is for a laudable purpose, there is still a need for compensation.  BUT… o Where the land was originally public land, and awarded by free patent and was registered with an OCT and TCT with a reservation for a legal easement of a right-of-way in favor of the government, just compensation need not be paid for the taking of a part thereof for public use as an easement of a right

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of way, unlike if the land were originally private property. (NIA v CA)

his failure to do so does not constitute a renunciation of his right nor does the right to demand such easement prescribe under Article 631. The right to demand a right of way is imprescriptible. (Francisco v Paez)

What are the kinds of easements of right of way? 1. Private, when it is established in favor of a private person, such as the right granted in Article 649; or 2. Public, when it is available in favor of the community or the public at large.

Art. 651. The width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time. (566a)

Acquisition and extinguishment by prescription  The easement of right of way, being discontinuous, cannot be acquired ny prescription. It may be apparent, but it is not a continuous easement.  De Leon gives some reasons why the easement of right of way should be considered as continuous in page 480 of his book.

Width of the passage  It is the needs of the dominant property which ultimately determine the width of the passage, and these needs may vary from time to time.  The easement established may thus be changed or modified from time to time as the subsequent needs of the dominant estate may demand.

Case doctrines  Requisites of the easement (based on Valdez v Tabisula; Lee, Villanueva; etc) 1. Claimant must be an owner of enclosed immovable or one with real right 2. Property is surrounded by other immovables and has no adequate outlet to a public highway 3. Proper indemnity must be paid 4. The isolation is not the result of the owner of the dominant estate’s own acts 5. The right of way claimed is at the least prejudicial to the servient estate 6. To the extent consistent with the foregoing rule, the distance from the dominant estate to a public highway may be the shortest.  The onus of proving the existence of these requisites lies on the owner of the dominant estate.  Requisites na naman! (based on Mejorada v Vertudazo) 1. The estate is surrounded by other immovables and is without adequate outlet to a public highway; 2. After payment of the proper indemnity 3. The isolation was not due to the proprietor’s acts; and 4. The right of way claimed is at a point least prejudicial to the servient estate.  One whose land is enclosed by the lands of others at one acquires the right to demand an easement of way to the nearest street or road, but

Art. 652. Whenever a piece of land acquired by sale, exchange or partition, is surrounded by other estates of the vendor, exchanger, or co-owner, he shall be obliged to grant a right of way without indemnity. In case of a simple donation, the donor shall be indemnified by the donee for the establishment of the right of way. (567a)

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Art. 653. In the case of the preceding article, if it is the land of the grantor that becomes isolated, he may demand a right of way after paying a indemnity. However, the donor shall not be liable for indemnity. (n) Where land of transferor or transferee enclosed  These two articles are exceptions to the requirement in Article 649 regarding the payment of indemnity.  If the land transferred is surrounded by other estates of the vendor, exchanger or co-owner, the transferee is not obliged to pay indemnity for the easement as the consideration for the transfer is presumed to include the easement without the indemnity. o If the right of way becomes useless for some reason or another, it is no longer than transferor’s fault. Apply Article 642. o Article 652 is not applicable in case of simple donation because the donor receives nothing for his property.  If it is the land of the grantor that becomes isolated, he may demand a right of way but shall be obliged to pay indemnity unless the purchaser agreed to grant right without indemnity.

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o

The donor shall not be liable for indemnity as it is considered a tacit condition of the donation.

Art. 654. If the right of way is permanent, the necessary repairs shall be made by the owner of the dominant estate. A proportionate share of the taxes shall be reimbursed by said owner to the proprietor of the servient estate. (n) Responsibility for repairs and taxes  This applies if the right of way is permanent.  The servient owner retains ownership of the passageway; hence, he pays all the taxes.  The dominant owner is liable for the necessary repairs and the proportionate share of the taxes paid by the servient owner, meaning the amount of taxes corresponding to the portion on which the easement is established. Art. 655. If the right of way granted to a surrounded estate ceases to be necessary because its owner has joined it to another abutting on a public road, the owner of the servient estate may demand that the easement be extinguished, returning what he may have received by way of indemnity. The interest on the indemnity shall be deemed to be in payment of rent for the use of the easement. The same rule shall be applied in case a new road is opened giving access to the isolated estate. In both cases, the public highway must substantially meet the needs of the dominant estate in order that the easement may be extinguished. (568a) Extinguishment of compulsory easement of right of way  This applies to compulsory easement of right of way.  The two causes of extinguishment are: 1. The joining of the isolated estate to another abutting a public road, and 2. Opening a new road which gives access to the estate.  The new outlet must be adequate.  The extinguishment is not automatic because the law says that the owner of the servient estate may demand that the easement be extinguished, if he so desires. So, the dominant owner cannot ask for

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the return of the indemnity, if the servient owner chooses to allow the continuation of the easement. The servient owner is not liable to pay interest on the indemnity as the interest is deemed to be payment for the use of the easement.

Art. 656. If it be indispensable for the construction, repair, improvement, alteration or beautification of a building, to carry materials through the estate of another, or to raise therein scaffolding or other objects necessary for the work, the owner of such estate shall be obliged to permit the act, after receiving payment of the proper indemnity for the damage caused him. (569a) Temporary easement of right of way  This applies to a right of way which is essentially temporary or transitory.  It is sufficient that great inconvenience, difficulty, or expense would be encountered if the easement was not granted.  Temporary easement is allowed only after the payment of the proper indemnity. Case doctrine  The installation of electric power lines is a permanent easement not covered by Article 656. Article 656 deals only with the temporary easement of passage. (Preysler, Jr v CA) Art. 657. Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for watering places, resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by the usages and customs of the place. Without prejudice to rights legally acquired, the animal path shall not exceed in any case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters. Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this Section and those of Articles 640 and 641 shall be observed. In this case the width shall not exceed 10 meters. (570a) Right of way for the passage of livestock, watering places  The easements shall be governed by the ordinances, regulations, and in their absence, usages and customs of the place.

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Animal path max width: 75 meters Animal trail max width: 37.5 meters For drawing waters and for watering animals max width: 10 meters o In the last case, they can be imposed only for reasons of public use in favor of a town or barrio and only after payment of the proper indemnity.

SECTION FOUR – EASEMENT OF PARTY WALL Art. 658. The easement of party wall shall be governed by the provisions of this Title, by the local ordinances and customs insofar as they do not conflict with the same, and by the rules of co-ownership. (571a) What’s an easement of party wall?  It refers to all those mass of rights and obligations emanating from the existence and common enjoyment of wall, fence, enclosures or hedges, by the owners of adjacent buildings and estates separated by such objects. What is a party wall, what is its nature?  A party wall is a common wall which separates two estates, built by common agreement at the dividing line such that it occupies a portion of both estates on equal parts.  It is a kind of forced co-ownership in which the parties are prt-owners.  Each owner owns part of the wall but it cannot be separated from the other portions belonging to the others.  An owner may use a party wall to the extent of the ½ portion on his property. Not all common walls or walls in co-ownership are party walls. (A wall built on a co-owned lot is a common wall, not a party wall.) Party Wall The shares of the co-owners cannot be physically segregated but they can be physically identified. No such limitation

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Co-ownership Shares of the co-owners can be divided or separated physically. Before such division, a co-owner cannot point to any definite portion of the property as belonging to him. None of the co-owners may use the community property for his exclusive benefit

Any owner may free himself from contributing to the cost of repairs and construction of a party wall by renouncing all his rights thereto.

Partial renunciation is allowed

Art. 659. The existence of an easement of party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary: (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. (572) When is the existence of a party wall presumed? 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; or 3. In fences, walls and live hedges dividing rural lands. 

The legal presumption is juris tantum; it may be rebutted by a title or exterior sign or any other proof showing that the entire wall in controversy belongs exclusively to one of the adjoining property owners.

Case doctrine  A wall separating two adjoining buildings, built on the land on which one of these buildings stands, is not a party wall when there is a drain along its top to carry away the water from the roof and eaves of the building belonging to the owner of the land on which the wall is erected; and also when a part of the wall is covered by the roof of the said building, the construction of which demonstrates that the wall belongs exclusively to the owner of the building of which it forms part. (Lao v Heirs of Alburo) Art. 660. It is understood that there is an exterior sign, contrary to the easement of party wall: (1) Whenever in the dividing wall of buildings there is a window or opening; (2) Whenever the dividing wall is, on one side, straight and plumb on all its facement, and on the other, it has similar conditions on the upper part, but the lower part slants or projects outward;

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(3) Whenever the entire wall is built within the boundaries of one of the estates; (4) Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others; (5) Whenever the dividing wall between courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only one of the estates; (6) Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other; (7) Whenever lands inclosed by fences or live hedges adjoin others which are not inclosed. In all these cases, the ownership of the walls, fences or hedges shall be deemed to belong exclusively to the owner of the property or tenement which has in its favor the presumption based on any one of these signs. (573) Exterior signs rebutting presumption  This article mentions some exterior signs rebutting the presumption of a party wall. The wall becomes the exclusive property of the owner of the estate which has in its favor the presumption based on any of the above exterior signs.  The enumeration is merely illustrative, and is not exclusive.  The exterior signs may contradict each other. In such case, the court shall decide the matter taking into consideration all the circumstances. o But in case of conflict between a title evidencing ownership to a wall and an exterior sign, the former must prevail, for the latter merely gives rise to an inference of ownership. Art. 661. Ditches or drains opened between two estates are also presumed as common to both, if there is no title or sign showing the contrary. There is a sign contrary to the part-ownership whenever the earth or dirt removed to open the ditch or to clean it is only on one side thereof, in which case the ownership of the ditch shall belong exclusively to the owner of the land having this exterior sign in its favor. (574) Bitches or drains between two estates (hehe)

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The deposit of earth or debris on one side alone is an exterior sign that the owner of that side is the owner of the ditch or the drain. Again, this is rebuttable.

Art. 662. The cost of repairs and construction of party walls and the maintenance of fences, live hedges, ditches, and drains owned in common, shall be borne by all the owners of the lands or tenements having the party wall in their favor, in proportion to the right of each. Nevertheless, any owner may exempt himself from contributing to this charge by renouncing his part-ownership, except when the party wall supports a building belonging to him. (575) Contribution to cost of repairs and construction of party walls  The part-owners of the party wall shall contribute to the cost in the proportion to their respective interests. o But if the cause of the repairs is due to the fault of just one, then he alone shall bear the costs.  Any owner may free himself from contributing to the charge by renouncing his rights in the party wall unless it actually supports his building.  The renunciation will include the land on which the party wall is constructed. Art. 663. If the owner of a building, supported by a party wall desires to demolish the building, he may also renounce his part-ownership of the wall, but the cost of all repairs and work necessary to prevent any damage which the demolition may cause to the party wall, on this occasion only, shall be borne by him. (576) Demolish that building! Demolish!  An owner may also renounce his part ownership of a party wall if he desires to demolish his building supported by the wall.  He shall bear all the expenses of repairs and work necessary to prevent any damage which the demolition may cause to the party wall. Art. 664. Every owner may increase the height of the party wall, doing at his own expense and paying for any damage which may be caused by the work, even though such damage be temporary.

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The expenses of maintaining the wall in the part newly raised or deepened at its foundation shall also be paid for by him; and, in addition, the indemnity for the increased expenses which may be necessary for the preservation of the party wall by reason of the greater height or depth which has been given it. If the party wall cannot bear the increased height, the owner desiring to raise it shall be obliged to reconstruct it at his own expense and, if for this purpose it be necessary to make it thicker, he shall give the space required from his own land. (577) Art. 665. The other owners who have not contributed in giving increased height, depth or thickness to the wall may, nevertheless, acquire the right of part-ownership therein, by paying proportionally the value of the work at the time of the acquisition and of the land used for its increased thickness. (578a) Increase the height of party wall!  An owner is given the right to increase the height of a party wall subject to the following conditions: 1. He must do so at his own expense; 2. He must pay for any damage which may be caused thereby even if damage is temporary; 3. He must bear the cost of maintaining the portion added; and 4. He must pay the increased cost of preservation of the wall.  He shall be obliged to reconstruct the wall at his expense if it is necessary so that the wall can bear the increased height, and if additional thickness is required, he shall provide the space therefore from his own land.  The other owners cannot object to the work as long as the above conditions are complied with.  The owner who makes the addition acquires ownership unless the other owners pay proportionately the value of the work at the time of the acquisition (not the construction) and of the land used for the wall’s increased thickness. Art. 666. Every part-owner of a party wall may use it in proportion to the right he may have in the co-ownership, without interfering with the common and respective uses by the other co-owners. (579a) Proportional use of party wall

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If Tweet owns 2/3 of the party wall and Plurk owns 1/3, Tweet may use the wall (like inserting a beam) up to 2/3 of its thickness, and Plurk can do the same up to 1/3.

SECTION FIVE – EASEMENT OF LIGHT AND VIEW Art. 667. No part-owner may, without the consent of the others, open through the party wall any window or aperture of any kind. (580) WHAT IS AN EASEMENT OF LIGHT?!?!  Easement of light (jus luminum) is the right to admit light from the neighboring estate by virtue of the opening of a window or the making of certain openings. WHAT IS AN EASEMENT OF VIEW?!?!  Easement of view (jus prospectus) is the right to make openings or windows, to enjoy the view through the estate of another and the power to prevent all constructions or works which would obstruct such view or make the same difficult.  It necessarily includes the easement of light. Making of opening through a party wall  A part-owner cannot exercise an act which implies full ownership of the wall by making use of all its thickness.  Remember, a window in the dividing wall of buildings is an exterior sign which rebuts the presumption that the wall is a party wall. One partowner may not, therefore, make any window or opening of any kind thru a party wall without the consent of the others. Art. 668. The period of prescription for the acquisition of an easement of light and view shall be counted: (1) From the time of the opening of the window, if it is through a party wall; or (2) From the time of the formal prohibition upon the proprietor of the adjoining land or tenement, if the window is through a wall on the dominant estate. (n) Prescriptive period for acquisition of easement of light and view  The easement of light and view is either positive or negative.  When is it positive?

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It is considered positive if made through a party wall or even if made on one’s own wall, if the window is on a balcony or projection extending over the adjoining property. o When a window is opened through a party wall, an apparent and continuous easement is created from the time of such opening. But there is no true easement as long as the right to prevent its use exists. o The adjoining owner can order the window closed within 10 years from the time of the opening of the window. When is it negative? o It is considered negative if the window is made through a wall on the dominant estate. o The 10-year period of prescription commences from the time of the formal prohibition (instrument acknowledged by a notary public) upon the adjoining owner. o Before the expiration of the prescriptive period, the window exists by mere tolerance of the adjoining owner who always retains the right to have it closed or to build an obstruction, although the opening was made more than 10 years after he decided to exercise his right.  The opening by Xyzal was made in 1990 but he made a formal notarial demand prohibiting Yeeyoo to obstruct the view only in 1994, Yeeyoo may still demand the closure of the window in 2001. o

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Case doctrines  When the construction of windows and balconies does not constitute an actual invasion of the rights of another, but is a lawful exercise of an inherent right, the easement of light and view is negative. (Fabie v Lichauco)  When a window is opened in a party wall, the express or implied consent of the part owner affords a basis for the acquisition of a prescriptive title.  When a window is opened in the wall of a neighbor, prescription commences to run from the date of the opening of the windows and ripens into title when the specified time has elapsed without opoosition on the part of the owner of the wall. (Cortes v Yu Tibo) 

Art. 669. When the distances in Article 670 are not observed, the owner of a wall which is not party wall, adjoining a tenement or piece of land belonging to another, can make in it openings to admit light at the height of the ceiling joints or immediately under the ceiling, and of the size of thirty centimeters square, and, in every case, with an iron grating imbedded in the wall and with a wire screen. Nevertheless, the owner of the tenement or property adjoining the wall in which the openings are made can close them should he acquire part-ownership thereof, if there be no stipulation to the contrary. He can also obstruct them by constructing a building on his land or by raising a wall thereon contiguous to that having such openings, unless an easement of light has been acquired. (581a) Openings at height of ceiling joists to admit light  When the wall is not a party wall, the owner may make an opening for the purpose of admitting light and air, but not for view. The restrictions are the following: 1. The size must not exceed 30 cm square; 2. The opening must be at the height of the ceiling joists or immediately under the ceiling; 3. There must be an iron grating imbedded in the wall; and 4. There must be a wire screen.  When the wall becomes a party wall, a part-owner can order the closure of the opening because no part-owner may make an opening through a party wall without the consent of the others. It can also obstruct the opening unless an easement of light has been acquired by prescription, in which case the servient owner may not impair the easement. Case doctrine  If a house consists of more than one story, each story may have the same openings which are provided by law for one house. The purpose of the law is to provide light to the rooms and it is evident that the rooms of the lower stories have a much need for light as those of the top story. (Choco v Santamaria))  When the house has been built, with two meters of the dividing line (Art 670), no other windows than those provided in this article may be opened in its walls. (Saez v Figueras) Art. 670. No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards an adjoining land or

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tenement can be made, without leaving a distance of two meters between the wall in which they are made and such contiguous property. Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of sixty centimeters. The nonobservance of these distances does not give rise to prescription. (582a) Art. 671. The distance referred to in the preceding article shall be measured in cases of direct views from the outer line of the wall when the openings do not project, from the outer line of the latter when they do, and in cases of oblique view from the dividing line between the two properties. (583) Direct and oblique views  Article 760 requires a distance of: o For direct view, 2 meters o For oblique view, 60 cm  Article 761 provides the manner of measuring the distance. o For direct view – from the outer line of the wall when the openings do not project; from the outer line of the openings when they do project o For oblique view – from the dividing line  An owner can build within the minimum distance or even up to the dividing line provided no window is opened except as provided in Article 669.  When windows are opened, without observing the required legal distances, the adjoining owner has a right to have them closed.  The non-observance of the distances does not give rise to prescription. o The mere opening of the windows in violation of Article 770 does not give rise to the servitude by prescription. o It’s a negative easement because the window is through a wall of the dominant estate and so prescription may still be acquired after 10 years from the time of notarial prohibition. Art. 672. The provisions of Article 670 are not applicable to buildings separated by a public way or alley, which is not less than three meters wide, subject to special regulations and local ordinances. (584a)

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Where buildings separated by a public way or alley  The distance in 670 is not compulsory where there is a public way or alley provided that it is not less than 3 meters wide. Case doctrine  A private alley opened to the use of the general public falls within the provision of Article 672. Art. 673. Whenever by any title a right has been acquired to have direct views, balconies or belvederes overlooking an adjoining property, the owner of the servient estate cannot build thereon at less than a distance of three meters to be measured in the manner provided in Article 671. Any stipulation permitting distances less than those prescribed in Article 670 is void. (585a) Where easement of direct view has been acquired  The word “title” as used in Article 673 refers to any of the modes of acquiring easements (contract, will, donation or prescription).  Whenever the easement of direct view has been acquired by such title, there is created a true easement, the owner of the servient estate cannot build thereon at less than a distance of 3 meters from the boundary line.  The distance may be increased or decreased by stipulation of the parties provided that in case of decrease, the minimum distance of 2 meters or 60 cm in 670 must be observed. If not, then it’s void.

SECTION SIX – DRAINAGE OF BUILDINGS Art. 674. The owner of a building shall be obliged to construct its roof or covering in such manner that the rain water shall fall on his own land or on a street or public place, and not on the land of his neighbor, even though the adjacent land may belong to two or more persons, one of whom is the owner of the roof. Even if it should fall on his own land, the owner shall be obliged to collect the water in such a way as not to cause damage to the adjacent land or tenement. (586a) What is an easement of drainage of buildings?

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Easement of drainage of buildings is the right to divert or empty the rain waters from the one’s own roof or shed to the neighbor’s estate either drop by drop or through conduits.

Rainwater not to fall on land of another  This article does not really create a servitude, it merely regulates the use of one’s own property by imposing on him the obligation to collect its rain waters so as not to cause damage to his neighbors, even if he be a co-owner of the latter.  It’s an exemption to Article 637 which obliges lower estates to receive the waters which naturally flow from higher estates. Art. 675. The owner of a tenement or a piece of land, subject to the easement of receiving water falling from roofs, may build in such manner as to receive the water upon his own roof or give it another outlet in accordance with local ordinances or customs, and in such a way as not to cause any nuisance or damage whatever to the dominant estate. (587) Easement to receive falling rainwater  This article deals not with a legal or compulsory easement but with a voluntary easement to receive rain water falling from the roof of an adjoining building.  It is an application of Article 629. Art. 676. Whenever the yard or court of a house is surrounded by other houses, and it is not possible to give an outlet through the house itself to the rain water collected thereon, the establishment of an easement of drainage can be demanded, giving an outlet to the water at the point of the contiguous lands or tenements where its egress may be easiest, and establishing a conduit for the drainage in such manner as to cause the least damage to the servient estate, after payment of the property indemnity. (583) Easement giving outlet to rainwater where house surrounded by other houses  The legal easement of drainage may be demanded subject to the following conditions: 1. There must be no adequate outlet to the rainwater because the yard or court of a house is surrounded by other houses;

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The outlet to the water must be at the point where egress is easiest, and establishing a conduit for drainage; and There must be payment of proper indemnity.

SECTION 7. – INTERMEDIATE DISTANCES AND WORKS FOR CERTAIN CONSTRUCTIONS AND PLANTINGS Art. 677. No constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions required in special laws, ordinances, and regulations relating thereto. (589) Constructions and plantings near fortified places  This article establishes an easement in favor of the State. Art. 678. No person shall build any aqueduct, well, sewer, furnace, forge, chimney, stable, depository of corrosive substances, machinery, or factory which by reason of its nature or products is dangerous or noxious, without observing the distances prescribed by the regulations and customs of the place, and without making the necessary protective works, subject, in regard to the manner thereof, to the conditions prescribed by such regulations. These prohibitions cannot be altered or renounced by stipulation on the part of the adjoining proprietors. In the absence of regulations, such precautions shall be taken as may be considered necessary, in order to avoid any damage to the neighboring lands or tenements. (590a) Construction of aqueduct, well, sewer, etc  Constructions which by reason of their nature or products are dangerous or noxious must comply with the distances prescribed by local regulations and customs of the place. Necessary protective works must also be built/done by the owner to avoid damage to neighbors.  The prohibitions cannot be altered by stipulations because of the underlying public policy of safety.  Whut up, ang layo mo na! Go go go! Art. 679. No trees shall be planted near a tenement or piece of land belonging to another except at the distance authorized by the ordinances or customs of the place, and, in the absence thereof, at a distance of at least two meters from the dividing line of the estates if

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tall trees are planted and at a distance of at least fifty centimeters if shrubs or small trees are planted. Every landowner shall have the right to demand that trees hereafter planted at a shorter distance from his land or tenement be uprooted. The provisions of this article also apply to trees which have grown spontaneously. (591a) Planting of trees (wow!)  This article establishes a negative easement.  It provides the minimum distance of trees and shrubs from the boundary line.  They shall be regulated first by local ordinances; and then by the customs of the place; and in default of both, this interesting article.  In case of violation, a landowner shall have the right to demand the uprooting of the tree or shrub even if it has grown spontaneously. Art. 680. If the branches of any tree should extend over a neighboring estate, tenement, garden or yard, the owner of the latter shall have the right to demand that they be cut off insofar as they may spread over his property, and, if it be the roots of a neighboring tree which should penetrate into the land of another, the latter may cut them off himself within his property. (592) Intrusions of branches or roots into neighboring estates  In case of branches, the adjoining owner must first demand that they be cut-off by the tree owner insofar as they spread over the former’s property. If the tree owner refuses, he may ask authority from the court.  As to the roots, he may cut them off himself if they penetrate into his land without the necessity of giving notice to the tree owner, because, by right of accession, he has acquired ownership over them. It actually constitutes a direct invasion on his land (grabe naman.) Art. 681. Fruits naturally falling upon adjacent land belong to the owner of said land. (n) Kung mahulog yung mangga ni Jhunjhun sa lote ko, akin na ba yung mangga?  Yes. But the falling must occur naturally. So I have no right to pick fruits still on branches that extend over my land.

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This is not based on occupation nor accession, but by operation of law.

SECTION 8. – EASEMENT AGAINST NUISANCE Art. 682. Every building or piece of land is subject to the easement which prohibits the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes. Art. 683. Subject to zoning, health, police and other laws and regulations, factories and shops may be maintained provided the least possible annoyance is caused to the neighborhood. 

The Code considers the easement against nuisance as negative because the proprietor or possessor is prohibited to do something which he could lawfully do were it not for the existence of the easement. However, a nuisance involves any act of ormission which is unlawful. So, these two articles are more of a restriction on the right of ownership than a true easement.

SECTION 9. - Lateral and Subjacent Support (n) Art. 684. No proprietor shall make such excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support. Art. 685. Any stipulation or testamentary provision allowing excavations that cause danger to an adjacent land or building shall be void. Art. 686. The legal easement of lateral and subjacent support is not only for buildings standing at the time the excavations are made but also for constructions that may be erected. Art. 687. Any proprietor intending to make any excavation contemplated in the three preceding articles shall notify all owners of adjacent lands. Proprietor prohibited from making dangerous excavations  Support is lateral when the supported and the supporting lands are divided by a vertical plane.

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Support is subjacent when the supported land is above and the supporting land is beneath it. An owner, by virtue of his surface right, may make excavations on his land, but his right is subject to the limitation in Article 684 that he shall not deprive any adjacent land or building of sufficient lateral or subjacent support. Any stipulation or testamentary provision allowing excavations that violate Article 684 is void. The limitation applies not only to existing buildings but also to future constructions. The notice required in Article 687 is mandatory except where there is actual knowledge of the proposed excavation. The adjacent owner is entitled to injunctive relief and to damages for violation of the provisions.

CHAPTER 3 VOLUNTARY EASEMENTS Art. 688. Every owner of a tenement or piece of land may establish thereon the easements which he may deem suitable, and in the manner and form which he may deem best, provided he does not contravene the laws, public policy or public order. (594) Owner of land may constitute easement  Since easement involves an act of strict dominium, only the owner or at least one acting in his name and under his authority, may establish a voluntary easement.  However, a beneficial owner may establish a temporary easement consistent with his right as such and subject to termination upon the extinguishment of the usufruct. Voluntary easements not contractual  Voluntary easements are not contractual in nature, they constitute the act of the owner. Art. 689. The owner of a tenement or piece of land, the usufruct of which belongs to another, may impose thereon, without the consent of the usufructuary, any servitudes which will not injure the right of usufruct. (595) Where property held in usufruct

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The owner of property in usufruct may create easements thereon without the consent of the usufructuary provided the rights of the latter are not impaired.

Art. 690. Whenever the naked ownership of a tenement or piece of land belongs to one person and the beneficial ownership to another, no perpetual voluntary easement may be established thereon without the consent of both owners. (596) Creation of perpetual voluntary easement  A usufructuary may impose on the estate held in usufruct a temporary easement.  Where the naked ownership and the beneficial ownership of the estate belong to different persons, and the easement is perpetual (permanent right of way, etc), the consent of both the naked owner and the beneficial owner is required. Art. 691. In order to impose an easement on an undivided tenement, or piece of land, the consent of all the co-owners shall be required. The consent given by some only, must be held in abeyance until the last one of all the co-owners shall have expressed his conformity. But the consent given by one of the co-owners separately from the others shall bind the grantor and his successors not to prevent the exercise of the right granted. (597a) Imposition of easement on undivided property  The creation of a voluntary easement on property owned in common requires the unanimous consent of all the co-owners, because it involves an act of alteration and not merely an alienation of an ideal share of a co-owner.  The consent may be given separately or successively.  Once consent is given by a co-owner, the same is binding upon him and his successors unless his consent was vitiated.  After the consent of the last of all of the co-owners has been secured, it is not necessary for him to give again his consent. Art. 692. The title and, in a proper case, the possession of an easement acquired by prescription shall determine the rights of the dominant

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estate and the obligations of the servient estate. In default thereof, the easement shall be governed by such provisions of this Title as are applicable thereto. (598) Rules governing voluntary easements…ano nga ba? 1. If created by title, such as contract, will, etc, then by such title; 2. If created by prescription, by the form and manner of possession of the easement (see Art 632); and 3. In default of the above, by the provisions of the Civil Code on easement. Art. 693. If the owner of the servient estate should have bound himself, upon the establishment of the easement, to bear the cost of the work required for the use and preservation thereof, he may free himself from this obligation by renouncing his property to the owner of the dominant estate. (599) Where servient owner bound himself to bear cost of maintenance of easement  This article applies only where the owner of the servient estate bound himself to bear the cost of the work required for the use and preservation of the easement  He is bound to fulfill the obligation he has contracted in the same way that such an owner, should he make use of the easement, is bound to contribute to the works necessary for the use and preservation of the servitude.  The servient owner may free himself from his obligation by renouncing or abandoning his property to the dominant owner. o The renunciation need not be over the whole servient tenement, but only on the portion thereof affected by the easement (right of way, etc). however, if the easement affects the entire servient estate (like natural drainage), then the renunciation must be total. o In any case, it cannot be tacit or implied; it must follow the form required by law for transmission of ownership of real property.

TITLE EIGHT NUISANCE

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Art. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property. What is the statutory definition of nuisance?  Nuisance is used to refer either to the harm caused or that which causes harm, or both  Negligence is not an essential ingredient of a nuisance but to be liable for a nuisance, there must be resulting injury to another in the enjoyment of his legal rights.  Anything which: (IASOH) 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 street, or any body of water 5. Hinders or impairs the use of property. Distinguish nuisance from trespass  Nuisance consists of a use of one’s own property in such a manner as to cause injury to the property or other right or interest of another, and generally results from the commission of an act beyond the limits of the property affected  Trespass is a direct infringement of another’s right of property  Where there is no actual physical invasion of the plaintiff’s property, the cause of action is for nuisance rather than trespass. An encroachment upon the space about another’s land but not upon the land itself is a nuisance, and not a trespass.  In trespass, the injury is direct and immediate; in nuisance, it is consequential. Distinguish nuisance from negligence Nuisance Basis of Regardless of the breach of duty degree of care or skill

Negligence Want of care

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Violation of

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An absolute duty, the doing of an act which is wrongful in itself

A relative duty, the failure to use the degree of care required under particular circumstances in connection with an act or omission which is not of itself wrongful Where the damage is the necessary consequence of what the defendant is doing, or is incident to the business itself or the manner in which it is conducted, the law of negligence has no application, and the law of nuisance applies. In fine, nuisance is wrongful in itself because of the injury caused regardless of the presence or absence of care, while negligence creates liability because of want of proper care resulting to another’s injury.

Case doctrines  Noise becomes actionable only when it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the maker to the needs of the listener. Injury to a particular person in a peculiar position will not render the noise an actionable nuisance – in the condition of present living, noise seems inseparable from the conduct of many necessary occupations.  The test to determine noise as nuisance is whether rights of property, health or comfort are so injuriously affected by the noise that the sufferer is subjected to a loss which goes beyond the reasonable limit imposed upon him by the condition of living.  The determining factor when noise alone is the cause of complaint is not its intensity or volume, but it is that the noise is of such character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities, rendering adjacent property less comfortable and valuable. (AC Enterprises v Frabelle)  A negligent or intentional act may constitute a nuisance. Where, after complaint and notice of damage, the defendant continues to offend and refuses to correct or discontinue the nuisance, it is intentional. Art. 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition.

What is a public nuisance?  A public nuisance has been defined as o the doing of or the failure to do something that injuriously affects safety, health or morals of the public, or o works some substantial annoyance, inconvenience, or injury to the public. What is a private nuisance?  A private nuisance has been defined as one which violates only private rights and produces damage to but one or a few personas, and cannot be said to be public. Public Private Affects Public at large, or such of The individual or a limited them as may come in number of individuals only contact with it Remedies Indictable Actionable, either for their abatement or for damages, or both  A nuisance may be both public and private in character. Hence, there are mixed nuisances. It may violate public rights to the injury of many, while producing special injury to private rights to any extent beyond the injury to the public. What is a nuisance per se?  Nuisance per se is an act, occupation, or structure which unquestionably is a nuisance at all times and under any circumstances, regardless of location or surroundings.  It is that which affects the immediate safety of persons and property. (Telmo v Bustamante)  It is a nuisance of itself because of its inherent qualities, productive of injury or dangerous to life or property without regard to circumstance.  Example: A house of prostitution. What is a nuisance per accidens?  It is an act, occupation, or structure, not a nuisance per se, but which may become a nuisance by reason of circumstances, location, or surroundings.  Example: raising of pigs in a house within city limits. Nuisance per se

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Nuisance per accidens

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In terms of proof

In terms of action

The thing becomes a nuisance as a matter of law Its existence need only be proved in any locatlity, without showing specific damages, and the right to relief is established by averment and proof of the mere act. May be summarily abated under the undefined law of necessity

Depends upon its location and surroundings, the manner of its conduct or other circumstances. Proof of the act and its consequences is necessary. It must be shown by evidence to be a nuisance under the law. Even the municipal authorities, under their power to declare and abate nuisances, would not have the right to compel the abatement of a particular thing or act as a nuisance without reasonable notice to the person alleged to be maintaining or doing the same at the time and place of hearing before a tribunal whether such a thing constitutes a nuisance

Case doctrines  The operation of bus terminals is a legitimate business which, by itself, cannot be said to be injurious to the rights of property, health, or comfort of the community. Unless a thing is nuisance per se, it may not be abated via an ordinance, without judicial proceedings. (Lucena v JAC Liner)  The abatement of a nuisance without judicial proceedings is possible only if it is a nuisance per se. A gas station is not a nuisance per se or one affecting the immediate safety of persons and property. Hence, it cannot be closed down or transferred summarily to another location. (Parayno v Jovellanos)  Injury must not be merely perceived, but must be factual. (Parayno) What is the doctrine of attractive nuisance?  One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails

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to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. The reason is that the condition or appliance in question although its danger is apparent, is so enticing to children of tender years as to induce them to approach or use it. The attractiveness is an implied invitation to such children EXCEPTION: is not applicable to bodies of water, artificial or natural in the absence of some unusual condition or artificial feature other than the mere water and its location. o A swimming pool is not a nuisance. o A tank of water from an ice plant is not a nuisance as well. (Hidalgo case) o What if Jollibee is in the middle of the swimming pool?!  Exercise due diligence. Tanggalin yung bubuyog na yan!

Art. 696. Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefor in the same manner as the one who created it.  

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Generally, only the creator of a nuisance is liable for the damge resulting therefrom. However, since the injurious effect of a nuisance is a continuing one, every successive owner or possessor of property constituting a nuisance who fails or refuses to abate it, has the same liability as the original owner. But of course, the new owenr must have actual knowledge of the nuisance.

Art. 697. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. Are the remedies exclusive?  No.  The action to abate nuisance and the action to recover damages are distinct remedies either or both of which the plaintiff may pursue at his election.  The two remedies are concurrent and not exclusive.

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The owner of property abated as a nuisance is not entitled to compensation unless he can show that the abatement is unjustified.

Art. 700. The district health officer shall take care that one or all of the remedies against a public nuisance are availed of.

Art. 698. Lapse of time cannot legalize any nuisance, whether public or private.

Art. 701. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be commenced by the city or municipal mayor.

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General rule: The right to bring an action to abate a public or private nuisance is not extinguished by prescription. Lapse of time cannot be relied upon to legalize a nuisance, whether public or private. Exception: See Art 631 (2) which expressly prescribes that easements are extinguished by obstruction and non-use for ten years. (check book,P558)

Art. 699. The remedies against a public nuisance are: (1) A prosecution under the Penal Code or any local ordinance: or (2) A civil action; or (3) Abatement, without judicial proceedings. What are the remedies against a public nuisance? 1. Prosecution under the Penal Code or any local ordinance 2. A civil action 3. Abatement, without judicial proceedings.  These are not exclusive but cumulative.  All of them may be availed of by public officers, and the last two, by private persons, if the nuisance is especially injurious to the latter. Abatement without judicial proceedings  The summary abatement of nuisance without judicial proceedings is recognized and established even in the absence of statute on the ground that the requirement of preliminary formal legal proceedings and a judicial trial would result in defeating the beneficial object sought to be obtained.  Police power of the state includes the right to destroy or abate by a summary proceeding whatever may be regarded as a public nuisance, subject to constitutional limitations.  Property taken or destroyed for the purpose of abating a nuisance is not taken for public use, and there is accordingly no obligation to make compensation for such taking.

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Art. 702. The district health officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against a public nuisance. What is the role of the district health officer and others with respect to public nuisance?  The district health officer is charged with the duty to see to it that one or all of the remedies against a public nuisance are availed of.  Article 702 does not empower the district health officer to abate a public nuisance to the exclusion of all other authorities. His power is simply to determine whether or not abatement, without judicial proceedings, is the best remedy against a public nuisance.  The action must be commenced by the city or municipal mayor. But a private person may also file an action if the public nuisance is especially injurious to him.  Art. 703. A private person may file an action on account of a public nuisance, if it is specially injurious to himself. Does a private person have a right to file action on account of a public nuisance?  Certainly!  A private person may also file a civil action if the public nuisance is especially injurious to himself. In other words, the nuisance becomes as to him a private nuisance affecting him in a special way different from that sustained by the public in general.  In the absence of a showing of special or unusual damages, differing from those suffered by the general public, a cause of action does not arise in favor of a private individual  An action may be maintained by one who is not the sole or even a peculiar sufferer, if his grievance is not common to the whole public, but is a common misfortune of a number or even a class of persons.

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Art. 704. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary: (1) That demand be first made upon the owner or possessor of the property to abate the nuisance; (2) That such demand has been rejected; (3) That the abatement be approved by the district health officer and executed with the assistance of the local police; and (4) That the value of the destruction does not exceed three thousand pesos. What are the conditions for extrajudicial abatement of a public nuisance?  The party injured may remove, and if necessary, destroy thing which constitutes the nuisance without committing a breach of the peace, or doing unnecessary damage.  What should be done? 1. Demand be first made upon the owner or possessor of the nuisance 2. Demand must have been rejected 3. Abatement be approved by the district health officer and executed with the assistance of the local police 4. The value of the destruction does not exceed P3000. Art. 705. The remedies against a private nuisance are: (1) A civil action; or (2) Abatement, without judicial proceedings. Art. 706. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private person be followed. What are the remedies against a private nuisance? 1. Civil action 2. Abatement, without judicial proceedings. 

In abating a nuisance, a person may even go to the extent of destroying the damn thing which constitutes the nusicance provided:

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a. b.

He commits no breach of the peace nor causes unnecessary injury, and The procedure for extrajudicial abatement of public nuisance prescribed in 704 is complied with

Art. 707. A private person or a public official extrajudicially abating a nuisance shall be liable for damages: (1) If he causes unnecessary injury; or (2) If an alleged nuisance is later declared by the courts to be not a real nuisance. Is there liability for damages in case of extrajudicial abatement?  Yeeeeeeees!  A private or public officer may be held liable for damages.  The two grounds of which are: a. Unnecessary injury b. The alleged nuisance is later declared by the courts to be not a real nuisance.

BOOK III DIFFERENT MODES OF ACQUIRING OWNERSHIP PRELIMINARY PROVISION Art. 712. Ownership is acquired by occupation and by intellectual creation. Ownership and other real rights over property are acquired and transmitted by law, by donation, by estate and intestate succession, and in consequence of certain contracts, by tradition. They may also be acquired by means of prescription. (609a) What is mode?  Mode is the specific cause which produces them as the result of the presence of a special condition of things, of the capacity and intention of persons, and of the fulfillment of the requisites established by law. What is title?  Title is the juridical act, right or condition which gives the means to their acquisition but which in itself is insufficient to produce them.

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In a contract of sale, the contract is the title and tradition, as a consequence of sale, is the mode. Sometimes, the mode is at the same time the title (as in with succession)

Mode Directly and immediately produces a real right The cause Proximate cause Essence of the right which is to be created or transmitted 

Title Serves merely to give the occasion for its acquisition or existence The means Remote cause The means whereby that essence is transmitted

Contracts only constitute titles or rights to the transfer or acquisition of ownership, while tradition or delivery is the mode of accomplishing the same.

What are the different modes and titles of acquiring ownership and other real rights? (OLDTIPS) 1. Original modes or those independent of any pre-existing right of another person, namely: a. Occupation (condition of being without known owner); and b. Work which includes intellectual creation (creation, discovery, or invention) 2. Derivative modes or those based on a pre-existing right held by another person, namely: a. Law (existence of required conditions) b. Donation (contract of parties) c. Succession, estate and intestate (death) d. Tradition, as a consequence of certain contracts (contract of the parties), and e. Prescription (possession in the concept of owner) 

The derivative modes are modes both for the acquisition and transmission of ownership and other real rights. The transmission may involve a right in its entirety, or only a part thereof (pledge, mortgage, usufruct).

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Registration is not a mode of acquiring ownership, and other real rights but only a means of confirming the fact of their legal existence with notice to the world at large.

Law as a mode of acquisition?  When the Civil Code speaks of law as a mode of acquisition, it refers to it as a distinct mode or to those cases where the law, independent of the other modes, directly vest ownership of a thing in a person once the prescribed conditions or requisites are present or complied with.  Examples: 1. Hidden treasure 2. Art 445 3. River beds (Art 461) 4. Art 466 5. Art 681 6. Art 1434 7. Art 1456 Tradition as a mode of acquistion  Tradition is a derivative mode of acquiring ownership and other real rights by virtue of which, there being intention and capacity on the part of the grantor and grantee and the pre-existence of said rights in the estate of the grantor, they are transmitted to the grantee through a just title. (whut?)  Requisites: i. Pre-existence in the estate of the grantor of the right to be transmitted ii. Just cause or title for the transmission iii. Intention on the part of the grantor to grant and on the part of the grantee to acquire iv. Capacity to transmit and to acquire v. An act which gives it outward form, physically, symbolically or legally  Purpose: non nudis pactis, sed traditione dominia rerum transferuntur. Ownership is transferred, among other means, by tradition. The delivery of a thing constitutes a necessary and indispensable requisite for the purpose of acquiring the ownership of the same by virtue of a contract.  Kinds: a. Real tradition b. Constructive tradition

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c. d.

i. Symbolic ii. Tradition by public instrument iii. Traditio longa manu iv. Tradition brevi manu v. Tradition constitutum possessorium Quasi tradition Tradition by operation of law

What do you actually deliver?  Ownership, possession and control of the subject matter. What if the vendor points to the vendee a certain house which he already sold to the vendee, but there are security guards roaming around the lot?  No tradition. (Ask Jaymie Reyes.) Case doctrines  A stranger to the succession of a dead person cannot conclusively claim ownership over the subject lot on the sole basis of the waiver document which neither recites the elements of either a sale, or a donation, or any other derivative mode of acquiring ownership. (Acap v CA)  An affidavit not accompanied by any instrument showing the sale between a purported vendor and vendee is not a basis of ownership. (Heirs of dela Cruz v Heirs of Quintos)  For lands of public domain, in order to acquire it by prescription, there must be a declaration of the State that it’s alienable and disposable and a positive act that states that it is no longer needed for public use. Only at that point will the counting for prescription start. (Heirs of Malabanan) TITLE ONE - OCCUPATION Art. 713. Things appropriable by nature which are without an owner, such as animals that are the object of hunting and fishing, hidden treasure and abandoned movables, are acquired by occupation. (610) What is the concept of occupation? 1. Defined as the appropriation of things appropriable by nature which are without an owner. 2. The seizure of things corporeal which have no owner with the intention of acquiring the ownership thereof. What are the requisites of occupation?

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1. 2. 3. 4. 5. 6.

Seizure of a thing Must be corporeal personal property Must be susceptible of appropriation by nature Must be without an owner Must be an intention to appropriate Requisites or conditions laid down by law must be complied with

What constitutes seizure?  It is sufficient that there is an act of taking possession, material holding not being essential as long as the possessor considers the thing as subjected to his control or disposition  The thing must be corporeal personal property without known owner (res nullius) or abandoned by the owner. res communes are not appropriable by nature.  The must be an intent to acquire ownership, otherwise, the seizure would not be appropriation in the legal sense, but mere material holding. Occupation Mode of acquiring ownership Corporeal personal property Requires that the object be without an owner Requires an intent to acquire ownership May not take place without some form of possession Short duration By itself, cannot lead to another mode of acquisition

Possession Merely raises the presumption of ownership when it is exercised in the concept of owner Any property May refer to property owned by somebody Concept of mere holder May exist without occupation Generally of longer duration May lead to another mode, which is prescription

What are the ways by which occupation may be effected? 1. By hunting and fishing 2. By finding of movables which never had any owner 3. By finding of movables which have been abandoned by the owner, and 4. By finding of hidden treasure What about wild animals?  They are possessed only while they are under one’s control.

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When is a thing abandoned, lost or taken by force?  A thing is considered abandoned when the spes recuperandi (expectation to recover) is gone and the animo revertendi (intention to have it returned) is finally given up by the owner.  A thing has been lost or taken by force is not ipso facto converted into a res nullius so as to belong to the first person who takes possession of the same without the necessity of proving the mode of his acquisition and it may thus be recovered by the original owner.

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This article does not apply to a case where a person has found a domestic animal and kept it for a number of years not knowing its owner. A domesticated animal which has not strayed or been abandoned cannot be acquired by occupation by a person to whose custody it was entrusted The periods of two days and twenty days are not periods of limitation, but conditions precedent to recovery.

Art. 714. The ownership of a piece of land cannot be acquired by occupation. (n)

Art. 717. Pigeons and fish which from their respective breeding places pass to another pertaining to a different owner shall belong to the latter, provided they have not been enticed by some article of fraud. (613a)

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Land is not included among things that can be the object of occupation the reason is that when the land is without an owner, it pertains to the state. But, what about abandoned private land?

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Art. 715. The right to hunt and to fish is regulated by special laws. (611) Do I have a right to hunt and fish?  No.  Strictly speaking, no one has a right to hunt or fish.  The privilege to hunt or fish, however, may be granted and regulated by law. Art. 716. The owner of a swarm of bees shall have a right to pursue them to another's land, indemnifying the possessor of the latter for the damage. If the owner has not pursued the swarm, or ceases to do so within two consecutive days, the possessor of the land may occupy or retain the same. The owner of domesticated animals may also claim them within twenty days to be counted from their occupation by another person. This period having expired, they shall pertain to him who has caught and kept them. (612a)  

This article talks of domesticated, not domestic animals. With respect to domestic animals, he can claim them even beyond twenty days from their occupation unless there is abandonment on his part.

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This article does not refer to wild pigeons and fish in a state of liberty or that live naturally independent of man. Their occupation is regulated by Art 715. What is contemplated here are pigeons and fish considered as domesticated animals subject to the control of man in private breeding places. The pigeons and fish must change their breeding place to another belonging to a different owner. Unless enticed by some artifice or fraud, the shall belong to the owner of the breeding place to which they shall have transferred.

Art. 718. He who by chance discovers hidden treasure in another's property shall have the right granted him in article 438 of this Code. (614) Art. 719. Whoever finds a movable, which is not treasure, must return it to its previous possessor. If the latter is unknown, the finder shall immediately deposit it with the mayor of the city or municipality where the finding has taken place. The finding shall be publicly announced by the mayor for two consecutive weeks in the way he deems best. If the movable cannot be kept without deterioration, or without expenses which considerably diminish its value, it shall be sold at public auction eight days after the publication. Six months from the publication having elapsed without the owner having appeared, the thing found, or its value, shall be awarded

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to the finder. The finder and the owner shall be obliged, as the case may be, to reimburse the expenses. (615a) Art. 720. If the owner should appear in time, he shall be obliged to pay, as a reward to the finder, one-tenth of the sum or of the price of the thing found. (616a)   

See codal for rules. Fairly simple. This article is based on the fact that one who lost his property does not necessarily abandon it. If there is no abandonment, the lost thing has not become res nullius. Paragraph 4 contemplates implied abandonment.

Title II. - INTELLECTUAL CREATION Art. 721. By intellectual creation, the following persons acquire ownership: (1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work; (2) The composer; as to his musical composition; (3) The painter, sculptor, or other artist, with respect to the product of his art; (4) The scientist or technologist or any other person with regard to his discovery or invention. (n) Art. 722. The author and the composer, mentioned in Nos. 1 and 2 of the preceding article, shall have the ownership of their creations even before the publication of the same. Once their works are published, their rights are governed by the Copyright laws. The painter, sculptor or other artist shall have dominion over the product of his art even before it is copyrighted. The scientist or technologist has the ownership of his discovery or invention even before it is patented. (n) Art. 723. Letters and other private communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However, the court may authorize their publication or dissemination if the public good or the interest of justice so requires. (n)

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Art. 724. Special laws govern copyright and patent. (429a)

Title III. - DONATION CHAPTER ONE NATURE OF DONATIONS Art. 725. Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it. (618a) Concept of donation  In its generic sense, the term donation includes all forms of gratuitous dispositions.  The donation the article speaks of and which is governed by Title Three is the donation proper or the true (or real) donation, or ordinary donation. What is the nature and effect of donation?  Although Art 725 defines donation as an act, it is really a contract, with all the essential requisites of a contract.  It falls under contracts of pure beneficence, the consideration being the mere liberality of the benefactor.  The Civil Code considers donation not among the contracts that transfer ownership but as a particular mode of acquiring and transmitting ownership.  As a mode of acquiring ownership, donation results in an effective transfer of title over the property from the moment the donor is made aware of the acceptance by the donee, provided that the donee is not disqualified or prohibited by law from accepting the donation.  Once accepted, it is generally considered irrevocable, and the donee becomes owner of property, except: 1. on account of officiousness, 2. failure of the donee to comply with the charge imposed on the donation, 3. or ingratitude.  The effect of donation is to reduce the patrimony or asset of the donor and to increase that of the donee. Hence, the giving of a mortgage or any other security does not constitute a donation.

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Requisites of donation 1. Donor must have capacity to make the donation of a thing or right 2. Donative intent (animus donandi) or intent to make the donation out of liberality to benefit the donee 3. There must be delivery, whether actual or constructive 4. Donee must accept or consent to the donation.    

In certain donations, the form prescribed by law must be followed (See Art 748-749) The subject matter of a donation may be a thing or right. A person may be a donee although he is incapacitated to enter into a contract if he is not specially disqualified by law to accept donations. Not enough that the act is gratuitous, there must be an intent to benefit the donee. The acceptance or consent of the donee is required because no once can be obliged to receive a benefit against his will.

Case doctrines  The essential elements of donation are as follows: o Essential reduction of the patrimony of the donor o Increase in the patrimony of the donee o The intent to do an act of liberality or animus donandi (Heirs of Florencio v Heirs of de Leon)  In order that the donation of an immovable property may be valid, the deed of donation must be made in a public document. The acceptance must be in a public document as well. (Heirs of Florencio)  Registration of the deed in the Office of the RD or in the Assessor’s Office is not necessary for it to be considered valid and official. Registration does not vest title. The necessity of registration comes into play only when the rights of third persons are affected. Furthermore, the heirs are bound by the deed of contracts executed by their predecessors-in-interest. (Heirs of Florencio)  A quitclaim is not a donation where those who executed the same merely acknowledged the ownership of and better right over the lot by other persons. (Heirs of Reyes v Calumpang)  Acceptance is necessary in a donation. This applies to all kinds of donations because the law does not make any distinction. A donation mortis causa takes effect only after the death of the donor, consequently

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it is only after the latter’s death that its acceptance maybe made. (Vita v Montanano) Prudent thing to do when drafting deeds of donation: Place an acceptance clause. So, if court considers it inter vivos, then it would have been accepted. If court considers it mortis causa, then the clause would be a mere superfluity, still open to the acceptance of the donee upon the death of the donor. (Atty Abrenica) The purpose of the formal requirement for acceptance of a donation is to ensure that such acceptance is duly communicated to the donor. The actual knowledge by the donor of the construction and existence of the school building pursuant to the condition of the donation fulfills the legal requirement that the acceptance of the donation by the donee be communicated to the donor. (Republic v Silim)

Art. 726. When a person gives to another a thing or right on account of the latter's merits or of the services rendered by him to the donor, provided they do not constitute a demandable debt, or when the gift imposes upon the donee a burden which is less than the value of the thing given, there is also a donation. (619) What are the kinds of donation? 1. As to taking effect: a. Inter vivos or that which takes effect during the lifetime of the donor b. Moris causa or that which takes effect upon the death of the donor c. Propter nuptias or that by reason of marriage 2. As to consideration a. Pure or simple; or that the cause of which is the pure liberality of the donor in consideration of the donee’s merits b. Remuneratory or compensatory; or that which is given out of gratitude on account of the services rendered by the donee to the donor, provided they do not constitute a demandable debt c. Modal or that which imposes upon the donee a burden (services to be performed in the future) less than the value of the gift d. Onerous or that the value of which is considered the equivalent of the consideration for which it is given, or that

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3.

made for a valuable consideration, and is thus governed by the rules on oblicon As to effectivity or extinguishment a. Pure b. Conditional c. With a term

Tell me more about remuneratory donations  In this kind of donation, the motivating cause is gratitude, acknowledgment of a favor, a desire to repay for past services  A donation given for future services cannot be remuneratory  It is necessary that the past services do not constitute a demandable debt o A debt is demandable when it can be legally demanded or enforced by the donee against the donor who has thus an obligation to pay it. But a debt that has been renounced is not a demandable debt. What about gratuities and pensions?  While technically a gratuity is different from a donation, in substance, they are the same.  A gratuity is similar to a pension and is essentially remunerative donation. Tell me more about modal donations  In a modal donation, a burden (which is necessarily future) less than the value of the gift is imposed upon the donee.  If the burden is considered the equivalent of the thing or right given, then it’s an onerous donation.  The burden may consist in a real or personal charge which is capable of being valued in terms of money. What are donations with mixed features?  Strictly speaking, remuneratory donations are those which are given on account of services rendered by the donee to the donor.  Modal donations are conditional only in the sense that a burden, charge, condition or limitation is imposed y the donor but the burden is not technically a condition in the sense of an uncertain event upon which the effectitivy or extinguishment of donation is made to depend for it is

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really a mere obligation imposed by the donor upon the donee as a consideration Actually, a modal donation has dual nature, it is partly onerous and partly simple – the portion equivalent to the burden is onerous and is governed by the rules on obligations and contracts, while the portion exceeding the value of the burdens imposed, is simple and must follow the form of donations.

Harry donates to Ron a parcel of land worth 300 galleons2 but Ron has to give another parcel of land or perform some service worth 100 galleons, the transaction is onerous as the 100 galleons which must be in the form of a contract of barter or exchange, and simple as to the 200 galleons which must follow the form of donations. Case doctrines  An onerous donation is that which imposes upon the donee a reciprocal obligation, or to be precise, this is the kind of donation made for a valuable consideration, the cost of which is equal to or more than the thing donated. (CJ Yulo v Roman Catholic Bishop of San Pablo)  Since onerous donations are governed by the rules of contracts, the prescription period is 10 years (based on a written contract), and not the 4-year period based on Article 764 (revocation must be brought within 4 years from the non-compliance of the conditions of the donation). (De Luna v Abrigo)  Remuneratory donation is one where the donee gives something to reward past or future services or because of future charges or burdens, when the value of said services, burdens or charges is less than the value of the donation. (De Luna -> this definition seems wrong as it includes future charges, which are necessarily modal) Art. 727. Illegal or impossible conditions in simple and remuneratory donations shall be considered as not imposed. (n) What’s the effect of illegal or impossible conditions?  Under Article 727, the illegal or impossible condition in a simple or remuneratory donation would be deemed not imposed following the rule 2

As of July 2006, the galleon-dollar exchange rate was 1:16.72. It hasn’t gone below 1:15 ever since. Wala lang, boring ng property eh. Harry Potter na lang.

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on testamentary dispositions. The donation will be considered as simiple. If the donation is onerous (or modal, as to its onerous portion), the illegal or impossible condition shall render it void. Being contractual in nature, the rule applicable would be that found in Article 1183 (check codal, if divisible, only condition will be void)

Case doctrine  The prohibition in the deed of donation against the alienation of the property for 100 years should be declared as an illegal or impossible condition within the contemplation of Article 727. Consequently, such condition shall be considered as not imposed. No reliance may accordingly be placed on said prohibitory paragraph in the deed of donation. (Archbishop of Manila v CA) Art. 728. Donations which are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession. (620) Art. 729. When the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered till after the donor's death, this shall be a donation inter vivos. The fruits of the property from the time of the acceptance of the donation, shall pertain to the donee, unless the donor provides otherwise. (n) Inter vivos Takes effect during the lifetime of the donor, independently of his death, even if the actual execution may be deferred until said death Made out of the donor’s pure generosity Valid if the donor survives the donee Must follow formalities of donations Accepted by the donee during his lifetime Cannot be revoked except for

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Mortis causa Takes effect upon the death of the donor testator, so that nothing is conveyed to or acquired by the donee until said death Made in contemplation of his death without the intention to lose the thing or its free disposal in case of survival Void should the donor survive the donee Must follow formalities for the validity of a will, otherwise void Accepted only after the donor’s death Always revocable at any time and for

grounds provided by law (See 760, 765) Right to dispose of the property is completely conveyed to the donee Subject to donor’s tax

any reason before the donor’s death (revocable ad nutum – at the discretion of the grantor) Right is retained by the donor while he is still alive Subject to estate tax

Designation given to donations not conclusive  Did the donor intend to transfer ownership of the property donated upon the execution of the donation? If yes, then it is inter vivos. If not, then, it is merely mortis causa.  “To take effect at the death of the creditor” does not automatically make it mortis causa. Such statements must be construed with the rest of the instrument. Donations to be delivered after the donor’s death  A distinction must be made between the actual donation and the execution thereof  That the donation is to have effect during the lifetime of the donor does not mean that the delivery of the property must be made during his life.  Article 729 speaks of donations in praesenti which take effect during the lifetime of the donor but the property shall be delivered after the donor’s death.  Such are inter vivos although the subject matter is not delivered at once, or the delivery is to be made post mortem, which is a simple matter of form and does not change the nature of the act.  The fruits shall belong to the donee from the time of acceptance unless otherwise provided by the donor. Instances Why is it important to make a distinction between inter vivos and mortis causa?  The distinction between a transfer inter vivos and mortis causa is important as the validity or revocation of the donation depends upon its nature.  If the donation is inter vivos, it must be executed and accepted with the formalities prescribed by Articles 748 and 749, except when it is onerous in which case the rules on contracts apply.

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If it is mortis causa, the donation must be in the form of a will, with all the formalities for the validity of wills, otherwise it is void and cannot transfer ownership. Moreover, mortis causa can be revoked any time before the death of the donor. (Ganuelas v Cawed)

What clauses are found in a deed of donation? 1. Habendum or warranty clause (wherein grantor transfers ownership) 2. Redendum or reservation clause (wherein grantor reserves something new to himself) 3. Acceptance clause Case doctrines  It is a settled rule that the title given to a deed of donation is not the determinative factor which makes the donation inter vivos or mortis causa.  In case of doubt, the conveyance should be deemed donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the property subject of the deed. (Puig v Penaflorida – but see book which cites the same case but says the opposite)  Donations inter vivos are immediately operative, even if the actual execution may be deferred until the death of the donor. Mortis causa, nothing is conveyed to the grantee and nothing is acquired by the latter, until the death of the grantor-testator, the disposition being until then ambulatory and not final. (Puig)  Acceptance clause is a mark that the donation is inter vivos. Acceptance is a requirement for donations inter vivos. Donations moris causa are not required to be accepted by the donees during the donors’ lifetime. (Gestopa v CA)  A limitation on the right to sell during the donors’ lifetime implied that ownership had passed to the donees and donation was already effective during the donors’ lifetime. (Gestopa) o Reiterated in Alejandro v Geraldez: Condtion that donees cannot sell during donors’ lifetime to a third person the donated property implies immediate passage of ownership and, therefore donation is inter vivos.  The reservation of lifetime usufruct indicates that the donor intended to transfer the naked ownership over the properties, thus making it inter vivos. (Gestopa)  Factors in determining whether a donation is one of mortis causa:

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It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive; 2. The before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and 3. That the transfer should be void if the transferor should survive the transferee (Maglasang v Heirs of Corazon Cabatingan) One of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee (Maglasang) Donations mortis causa must be executed in accordance with the requisites on solemnities of wills and testaments under Articles 805 and 806 of the Civil Code

Art. 730. The fixing of an event or the imposition of a suspensive condition, which may take place beyond the natural expectation of life of the donor, does not destroy the nature of the act as a donation inter vivos, unless a contrary intention appears. (n) Donation inter vivos subject to suspensive condition  This article contemplates a situtation where the donor intends the donation to take effect during his lifetime but he imposes suspensive condition which may or may not take place beyond his lifetime.  The fact that the event happens or the condition is fulfilled after the donor’s death does not change the nature of the act as a donation inter vivos.  The effect of the fulfillment of the suspensvie condition is retroactive to the making of the donation.  EXCEPTION: when the donor really intended that the donation should take effect after his death. Thus, mortis causa. Art. 731. When a person donates something, subject to the resolutory condition of the donor's survival, there is a donation inter vivos. (n) Donation inter vivos subject to a resolutory condition

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In these cases, the ownership of the donated property is immediately transferred to the donee upon perfection of the donation once acceptance by the donee is made known to the donor. A donation subject to a resolutory condition takes effect immediately but shall become inefficacious upon the happening of the event which constitutes the condition. Even if the donation is subject to the resolutory condition of the donor’s survival, the donation is still inter vivos. o I will donate this land to you, but if I survive World War III, I will get it back. If I survive World War III, the donation is rescinded. If I don’t make it, then it continues in effect.

Art. 732. Donations which are to take effect inter vivos shall be governed by the general provisions on contracts and obligations in all that is not determined in this Title. (621) Art. 733. Donations with an onerous cause shall be governed by the rules on contracts and remuneratory donations by the provisions of the present Title as regards that portion which exceeds the value of the burden imposed. (622) Rules governing onerous donations or onerous portions of donations  This article makes the rules of contracts directly applicable to onerous donations and to remuneratory donations as to the onerous portion thereof  Onerous donations are donations for a valuable consideration. They include those purely onerous or those in which the consideration is considered the equivalent of the property donated and the modal but only as regards that portion thereof considered the equivalent of the value of the burden imposed.  Remuneratory donations are true or simple donations because the consideration is really the liberality of the donor since the services rendered by the donee do not constitute a recoverable debt. However, the special rules on revocation should not apply to the portion of the donation equivalent to the equitable value of the services received by the donor.  The remuneratory donations referred to in Article 733 are the modal donations or those which impose “upon the donee a burden which is less than the value of the thing given” as regards that portion which

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exceeds the value of the burden, it shall be governed by the provisions on donations. There is no burden imposed on remuneratory donations. If a burden is imposed, it becomes onerous as regards the value of the burden.

Case doctrines  As onerous donations are governed by the rules on contracts, for there to warrant a revocation of the donation, there must be a substantial breach of the conditions in the deed. Mere casual breaches will not warrant revocations. (CJ Yulo v RC Bishop)  Considering that the donee’s acts did not detract from the very purpose for which the donation was made but precisely to achieve such purpose (of the donation), a lack of prior written consent of the donor (which was a condition of the donation) would only constitute casual breach of the deed. (CJ Yulo) Art. 734. The donation is perfected from the moment the donor knows of the acceptance by the donee. (623) Perfection of donation  There is no donation without acceptance by the donee.  Acceptance is indispensable because nobody is obliged to receive a benefit against his will.  Its absence makes the donation null and void.  The acceptance must be made during the lifetime of the donor and the donee.  Perfection takes place, not from the time of acceptance by the donee, but from the time it is made known, actual or constructively, to the donor.  If the donation and acceptance are in the same public instrument, signed by both and in the presence of witnesses, the donation is deemed already perfected inasmuch as knowledge of the acceptance is established by the instrument itself.  If acceptance was made in a separate instrument, there must be proof that a formal notice of such acceptance was received by the donor, and in case the donation involves immovable property, noted in both the deed of donation and the separate instrument embodying the acceptance. (See Art 749) What if there is revocation?

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If the donor revokes the donation before learning of the acceptance by the donee, there is no donation. But once it is perfected, it cannot be revoked without the consent of the donee except: 1. Inofficiousness (Art 760) 2. Failure of the donee to comply with the charges imposed in the donation (Art 764) 3. Ingratitude (Art 765)

Is registration necessary?  As between the parties to the donation and their assigns, it is not needed for its validity and efficacy. (But it must be in a public document for immovables!)  But for third parties to be bound, there must be registration. Case doctrines  The purpose of the formal requirement for acceptance of a donation is to ensure that such acceptance is duly communicated to the donor. The actual knowledge by the donor of the construction and existence of the school building pursuant to the condition of the donation fulfills the legal requirement that the acceptance of the donation by the donee be communicated to the donor. (Republic v Silim) CHAPTER 2 PERSONS WHO MAY GIVE OR RECEIVE A DONATION Art. 735. All persons who may contract and dispose of their property may make a donation. (624) Capacity of donor to contract and dispose of property  The donor must have both the capacity to contract and the capacity to dispose of his property in order that he may make a donation.  Those who cannot give consent to a contract cannot be donors; and donation made by one who does not have the free disposal of the thing donated and to alienate it shall not be valid.  It is possible, however, for a person to have capacity to contract but not the capacity to dispose of property. o Under the Family Code, every donation between spouses during the marriage shall be void except moderate gifts on the

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o

occasion of any family rejoicing. The prohibition applies also to persons living together as husband and wife without a valid marriage, or in illicit relations. Neither spouse may donate any community property nor conjugal partnership property without the consent of the other, except moderate donations for charity or on occasion of family rejoicing or family distress.

Can corporations make donations?  Yes. But they can’t give donations to aid any political party or candidate or for purposes of partisan political activity. Who are incapacitated to donate? 1. Minors 2. Insane or demented persons 3. Deaf-mutes who do not know how to write 4. Corporations (with regard to giving donations to aid any political party) 5. Guardians and trustees (with regard to property entrusted to them) 6. Spouses (to each other, except moderate gifts) 7. A spouse (to others without the consent of the other spouse, except moderate donations) Art. 736. Guardians and trustees cannot donate the property entrusted to them. (n) Donation by a guardian or trustee of ward’s property  Generally, guardians and trustees cannot be donors of their ward’s properties for the simple reason that they are not the owners of the same.  Exception: With respect to the trustee, donation is permitted notwithstanding that the trustee receives nothing in exchange directly, if the donation is onerous and is beneficial to the beneficiary. Art. 737. The donor's capacity shall be determined as of the time of the making of the donation. (n) Capacity of donor at time of making the donation  The donation is perfected from the moment the donor knows of the acceptance by the donee.

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However, this article seems to imply that the donor’s capacity must exist at the time of making the donation and not from the time of knowledge by the donor of the acceptance, that is, at the perfection of the act A juridical absurdity arises in case the donor has no capacity to act at the time the acceptance is conveyed to him. Since legally, the donor cannot be said to have knowledge of the acceptance, there can be no perfection of the donation which presupposes a meeting of the minds between the donor and the donee who are both capacitated. To avoid the apparent contradiction, the phrase “making of the donation” should be construed to mean “perfection of the donation” Hence, the donation would be valid, although the donor was insane at the time he signs the deed of donation or informs the donee of the donation but sane when he learns of the acceptance. The donor may ask for annulment of the donation if he so desires The subsequent incapacity of the donor does not affect the validity of the donation. This is similar to the rule in succession.

Art. 738. Al those who are not specially disqualified by law therefor may accept donations. (625) Capacity of the donee  Generally, all persons, whether natural or artificial, may be donees.  A donee need not be sui juris, with complete legal capacity to bind himself by contract.  As long as he is “not specially disqualified by law”, he may accept donations.  So, donations may be made to: 1. Incapacitated persons such as minors and others who cannot enter into a contract, 2. and also to conceived and unborn children. Art. 739. The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the

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guilt of the donor and donee may be proved by preponderance of evidence in the same action. (n) Donations void on moral grounds  This article declares null and void ab initio the donations referred to. What are the different void donations? 1. Between persons who were guilty of adultery and concubinage at the time of the donation 2. Between persons found guilty of the same criminal offense, in consideration thereof 3. Made to a public officer or his wife, descendants and ascendants, by reason of his office 4. Between spouses during the marriage, except moderate gifts which they may give each other on the occasion of any family rejoicing (Art 87, Family Code) 5. Donations of community property by a spouse without the consent of the other, except moderate donations (Art 98, Family Code) 6. Donations of conjugal partnership property by a spouse without the consent of the other, except moderate donations (Art 125, Family Code) 7. Donations to those provided for in Article 740, in cross reference to Art 1027 and 1032. 8. Donations accepted by agents without special authority to do so (Art 745) 9. Donations of immovables which don’t conform to the form prescribed in Art 749 Donations between persons guilty of adultery and concubinage  The civil action for declaration of nullity may be brought after the persons involved have been found guilty by final judgment in a criminal proceeding of adultery or concubinage.  In view of the last paragraph, conviction for adultery or concubinage in a criminal action is not essential.  The guilt of the donor and the donee may be proved by a mere preponderance of evidence in a civil proceeding to nullify the donation, alleging the adultery or concubinage as the cause of action for the declaration of nullity.  The donation is void, whether made before or after the illicit relations, if given in consideration thereof, either as inducement or compensation.

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What if the donation is given in contemplation of the termination of the relationship, is the donation still void? o Since the purpose is praiseworthy, good for all concerned, it should be considered valid. o This is particularly true when the woman (donee) was a victim of deceit by the man. o However, where the illicit relation was voluntary, and the donation was demanded by the woman as a price of the termination of their relationship, the donation is void. What if the concubine did not know that the man she lived with was actually married? o Then she is not guilty of concubinage and not disqualified from the donation.

Donations between persons found guilty of the same criminal offense  This rules presupposes prior criminal conviction in a criminal action; hence proof of guilty by mere preponderance of evidence is not sufficient.  The donation here is remuneratory or onerous. It is void whether made before or after the commission of the crime if it is in consideration thereof.  It is still void although the crime is not carried out because it is based on an unlawful cause. Donations made to a pubic officer, by reason of his office  Indirect bribery! The guilt need not be established by proof beyond reasonable doubt in a criminal proceeding for bribery.  A civil action to declare the donation void may be maintained by the proper party in interest.  Donations made to persons other than those mentioned are valid, unless, of course, they are intended for the public officer. Art. 740. Incapacity to succeed by will shall be applicable to donations inter vivos. (n) Incapacity to succeed by will  This article expressly makes the provisions on incapacity to succeed by will applicable to donations inter vivos

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Of course, they are also applicable to donations mortis causa which are governed by the law on succession According to Art 1027, the following are incapable of becoming donees: 1. The priest who heard the confession of the donor during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period 2. The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong 3. A guardian with respect to donations given by a ward in his favor before the final accounts of the guardianship have been approved, even if the donor should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid 4. Any physician, surgeon, nurse, health officer or druggist who took care of the donor during his last illness 5. Individuals, associations, and corporations not permitted by law to inherit. According to Art 1032, there are certain people who are deemed incapable to inherit by reason of unworthiness. The donation made to a person who falls under any of its provisions is valid if the donor had knowledge of the act of unworthiness or having known it subsequently, he should condone the same in writing. Even in the absence of pardon, the donation is not subject to revocation because donations may be revoked only for causes mentioned in Articles 760, 764 and 765. So, who are these people? 1. Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; 2. Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; 3. Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; 4. Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation;

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5. 6. 7. 8.

Any person convicted of adultery or concubinage with the spouse of the testator; Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; Any person who falsifies or forges a supposed will of the decedent.

Who are incapable of becoming donees? 1. Persons guilty of concubinage or adultery at the time of donation (but only between them) 2. Persons found guilty of the same criminal offense, in consideration thereof (but only between them) 3. Public officers, etc by reason of their office 4. Those mentioned in Art 1027 5. Those mentioned in Art 1032 (unworthy people)

Can you donate to conceived and unborn children?  Yes!  De Leon once again states the obvious by saying, “A conceived and unborn child cannot accept a donation because it is not yet a natural person.”  The acceptance must be made by those persons who would legally represent them if they were already born. Art. 743. Donations made to incapacitated persons shall be void, though simulated under the guise of another contract or through a person who is interposed. (628) Who are the incapacitated persons referred to here?  They are those specially disqualified by law to become donees, such as those in Articles 739 and 740.  Donations to such persons are void even if simulated under the guise of another contract or through an intermediary.

Art. 741. Minors and others who cannot enter into a contract may become donees but acceptance shall be done through their parents or legal representatives. (626a)

Art. 744. Donations of the same thing to two or more different donees shall be governed by the provisions concerning the sale of the same thing to two or more different persons. (n)

Ok, tell me more about donations to minors and others without capacity to contact  Donation requires acceptance by the donee.  If the donee is a minor or without capacity to enter into a contract, the acceptance must be made by the parents or legal representative of the donee.  This is especially true if the donation is onerous or imposes a charge or burden.  It is clear that the donee may not validly accept a donation although it imposes no burden.  In any case, when a formal or written acceptance is required by the donor, such acceptance must be made by the parents or legal representative.

Donations of the same thing to different donees  This article expressly makes applicable by analogy the rules on sales3 of the same thing to two ore more different vendees.  However, this article has had its sure of criticism. See book.

Art. 742. Donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born. (627)

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Art. 745. The donee must accept the donation personally, or through an authorized person with a special power for the purpose, or with a general and sufficient power; otherwise, the donation shall be void. (630) 3

“Art. 1544. If the same thing should have been donated to different donees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should be movable property. Should it be immovable property, the ownership shall belong to the person acquiring it who in good faith first recorded it in the Registry of Property. Should there be no inscription, the ownership shall pertain to the person who in good faith was first in the possession; and, in the absence thereof, to the person who presents the oldest title, provided there is good faith.”

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Who must accept the donation? 1. The donee personally, or 2. An authorized person or an agent, with a special power for the purpose, or with a general and sufficient power If not?  Then, the donation is void. Does the parent of a minor need a special power for the purpose of accepting a donation? Probably not, a parent is not considered an agent of a minor. They are considered legal guardians. (But I’m not sure.) Art. 746. Acceptance must be made during the lifetime of the donor and of the donee. (n) When should acceptance be made for inter vivos?  A donation inter vivos takes effect during the lifetime of the donor and the donee, and to take effect, it must be accepted by the donee.  Hence, acceptance by the donee (or his representative) must be made during his lifetime and that of the donor.  Even if the donation is made during their lifetime, but the donor dies before the acceptance is communicated to him, the donation is not perfected. How about for mortis causa?  Donations mortis causa are accepted only after the donor’s death because they partake of a will, and are governed by the rules on succession.  If the acceptance was made before the donor’s death, the donation mortis causa although validly executed, cannot be given force and effect. Such acceptance is void. (But is the donation void? Can there be a subsequent acceptance after the death of the donor?) Art. 747. Persons who accept donations in representation of others who may not do so by themselves, shall be obliged to make the notification and notation of which Article 749 speaks. (631) When does this article apply? 1. When acceptance is made through the parents, legal representative, or authorized agent of the donee;

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The property donated is immovable, and The acceptance is not made in the same deed of donation but in a separate public instrument.

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The requirement of notification of the donor and notation in both instruments that such notification has been made is necessary for the validity and perfection of the donation.

Art. 748. The donation of a movable may be made orally or in writing. An oral donation requires the simultaneous delivery of the thing or of the document representing the right donated. If the value of the personal property donated exceeds five thousand pesos, the donation and the acceptance shall be made in writing, otherwise, the donation shall be void. (632a) What are the rules for the formalities for donations for movables?  When the value of property exceeds P5000, the donation and the acceptance must always be made in writing; otherwise the donation is void, even if there is simultaneous delivery of the thing. o The donation and the acceptance need not be made in a public instrument, nor is it necessary that the acceptance be made in the same deed of donation.  When the value of property is P5000 or less, it may be made orally or in writing. o If made orally, there must be simultaneous delivery of the thing or of the document representing the right donated, otherwise, the donation is void. There must be acceptance which may be oral or written. The receipt of the delivery by the donee constitutes implied acceptance. o If made in writing, the donation is valid although there is no simultaneous delivery. Again, there must be acceptance which may also be made orally or in writing.  In every case, the acceptance of the donee must be made known to the donor for perfection of a donation to take place. Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.

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The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. (633) Formalities for donation of immovables  This article does not apply to onerous donations since they are governed by the laws of obligations and contracts  Donation of real property, which is a solemn contract, is void without the formalities stated in Article 749 So, what are the rules?  When donation and acceptance are in the same instrument, the requirements are: 1. The donation must be in a public document or instrument; and 2. The instrument must specify the property donated and the charges, if any, which the donee must satisfy.  When the donation and acceptance are in separate instruments, the requirements are: 1. The donation must be in a public document or instrument; 2. The instrument must specify the property donated and the charges, if any, which the donee must satisfy 3. The acceptance by the donee must be in a public document 4. It must be done during the lifetime of the donor 5. The donor must be notified in authentic form of the acceptance of the donation in a separate instrument; and 6. The fact that such notification has been made must be noted in both instruments. o But see the Rep v Silim case wherein the notification was not noted in the instrument, but still, the SC ruled that the donation was valid. 

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The donation of real property in a private instrument is null and void, and the donee may not compel the donor to execute a public instrument (1357) which applies only when the contract or donation is valid and enforceable. The donation cannot be ratified. Registration is not necessary for the donation to be considered valid and effective.

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From the time the public instrument of donation is simultaneously executed and acknowledged by the donor and the donee, the latter acquires the ownership of the donated property, since the execution of a public instrument of conveyance is one of the recognized ways in which tradition of immovable property may be made, unless the contrary is expressed or inferable from the terms of the deed. Title to immovable property does not pass from the donor to the donee by virtue of donation until and unless it has been accepted in public instrument and the donor duly notified thereof. Where the donation is on its face absolute and unconditional, it is error to imply that the possession or usufruct is excluded from the donation or the donation is subject to any charge or burden. The absence in the deed of any reservation in favor of the donor is proof that no such reservation was ever intended considering that under the law, a donation of immovable by public instrument is required to specify “the value of the charges” that the donee must assume.

Case doctrines  The best or primary evidence of a donation of real property is an authentic copy of the deed of donation with all the formalities required by Article 749. When a party wants to prove the contents of a documents, the best evidence is the original writing itself.  Prior to the introduction of secondary evidence, a party must establish the existence and due execution of the instrument, after which he must prove that the document was lost or destroyed. (DECS v Del Rosario)  Where the deed of donation fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument is not given to the donor or else not noted in the deed of donation and in the separate acceptance, the donation is null and void. (Sumipat v Banga)

CHAPTER 3 EFFECT OF DONATIONS AND LIMITATIONS THEREON Art. 750. The donations may comprehend all the present property of the donor, or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced in petition of any person affected. (634a)

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Reservation of sufficient means for support of donor and relatives  A donor may donate all his present property or part thereof provided he reserves sufficient property in ownership or in usufruct for the support of himself and of all relatives who are entitled to be supported by him at the time of the perfection of the donation  Present property means property which the donor can rightfully dispose of at the time of the donation. o The share in an existing inheritance is present property although the heir has not yet entered into the possession of the same.  The donation of present property without the required reservation is not null and void in its entirety; it is only subject to reduction by the court on petition of the party prejudiced by the donation – the donor himself, any dependent relative or creditor of the donor.  The limitation applies to simple, remunerative and modal donations but not to onerous ones which are governed by the law on obligations and contracts, nor to donations mortis causa for they take effect only after the donor’s death.  Donations propter nuptias cannot exceed more than one-fifth of the present property of the future spouses if in their marriage settlements executed before the marriage, they agree upon a regime other than the absolute community of property.4 Case doctrines  When the dnor stated that she would continue to retain the “possession, cultivation, harvesting and all other rights and atrtributes of ownership” she meant only dominium utile, not the full ownership. The words “rights and attributes of ownership” should be construed ejusdem generis with

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Art. 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. (126) Art. 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles. (127a) Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a) Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. (131a)

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the preceding rights of “possession, cultivation and harvesting” expressly enumerated in the deed. (Cuevas v Cuevas) Art. 751. Donations cannot comprehend future property. By future property is understood anything which the donor cannot dispose of at the time of the donation. (635) Donation of future property… PROHIBITED!  Future property is anything which the donor cannot dispose of at the time of the donation. In other words, it is property that belongs to others at the time the donation is made and it is immaterial that it may subsequently belong to the donor.  Nobody can dispose of that which does not belong to him. Nemo emo.  Future inheritance cannot be donated because it is future property but upon the death of his predecessor, the inheritance ceases to be future and consequently, may be the object of donation even if the properties constituting the inheritance have not yet been delivered.  Property, the acquisition of which by the donor depends upon the fulfillment of a suspensive condition, may be donated because, although the property may be as to him still “future property”, the effects of the fulfillment of the condition shall retroact to the day of the constitution of the contract.  Another reason is that the donor by desisting to acquire a future property donated would be revoking the donation contrary to the rule that donations inter vivos are irrevocable save for causes provided by law. Case doctrine  A donor cannot lawfully convey what is not his property. Where a parcel of land was the registered property of another, and the donee failed to show how her donor acquired it from the registered owner, it is held that the donor has no right, title or interest in said land which he could lawfully convey. Art. 752. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will. The donation shall be inofficious in all that it may exceed this limitation. (636)

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Amount of donation limited to what donor may give by will  Article 752 makes applicable to donations the limitation on testamentary disposition with respect to the amount thereof.  The limitation is really on the right of the donor to give rather than on the right of the donee to receive.  A person may not donate more than he can give by will and a person may not receive by way of donation more than what the donor is allowed by law to give by will; otherwise, the donation shall be inofficious and shall be reduced with regard to the excess.  The limitation applies where the donor has forced or compulsory heirs. The purpose is not to diminish the legitimes to which they are entitled. o But the limitation is enforceable only after the death of the donor because it is only then when it can be determined whether or not the donation is inofficious; by contrasting its value with the net value of the estate of the donor deceased. o The donation is valid during the lifetime of the donor. Art. 753. When a donation is made to several persons jointly, it is understood to be in equal shares, and there shall be no right of accretion among them, unless the donor has otherwise provided. The preceding paragraph shall not be applicable to donations made to the husband and wife jointly, between whom there shall be a right of accretion, if the contrary has not been provided by the donor. (637) Donation to several donees jointly  The rules are as follows: 1. The donation is understood to be in equal shares, unless the donor has provided otherwise. 2. There shall be no right of accretion among the donees, unless the donor has otherwise provided. 3. If the donees are husband and wife, there shall be aright of accretion, if the contrary has not been provided by the donor.  If there is no accretion among the donees, one cannot accept independently for his co-donee who is not present. Art. 754. The donee is subrogated to all the rights and actions which in case of eviction would pertain to the donor. The latter, on the other hand, is not obliged to warrant the things donated, save when the

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donation is onerous, in which case the donor shall be liable for eviction to the concurrence of the burden. The donor shall also be liable for eviction or hidden defects in case of bad faith on his part. (638a) Rights and actions  Here are the rules: 1. The donee is subrogated to all the rights and actions which in case of eviction would pertain to the donor 2. If the donation is simple or remunerative, the donor is not liable for eviction or hidden defects, becaue the donation is gratuitous; 3. Even if the donation is simple or remunerative, the donor is liable for eviction or hidden defects in case of bad faith on his part (knowingly donating a chicken with avian flu) or warranty is expressly stipulated; and 4. If the donation is onerous (modal donation, according to de Leon), the donor is liable on his warranty but only to the extent of the burden. Art. 755. The right to dispose of some of the things donated, or of some amount which shall be a charge thereon, may be reserved by the donor; but if he should die without having made use of this right, the property or amount reserved shall belong to the donee. (639) Donation with right of donor to dispose of part of object donated, reserved.  The donor may reserve the right to dispose of some of the things or part of the thing donated or some amount or income thereof.  The donation is actually conditional, and the condition is fulfilled if the donor dies without exercising the right he reserved, either by acts inter vivos or mortis causa. Ron donates to Harry a house and an apartment with the provision that Ron could sell the house and give the rents (or a portion) of the apartment for 5 years to Frank. The donation of the house with a reservation of the right to dispose should be considered mortis causa, and therefore, must follow the formalities prescribed for making a will. The donation of the apartment is inter vivos. Art. 756. The ownership of property may also be donated to one person and the usufruct to another or others, provided all the donees are living at the time of the donation. (640a)

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Naked ownership and usufruct separately donated  The donor may donate separately the naked ownership (dominium directum) to one person and the usufruct (dominium utile) to another.  To be valid, the donee must be “living at the time of the donation”, which is to be understood to refer to the time of the perfection of the donation.  A donation to a child who was not yet conceived at the time it was made is void.  If the property donated is immovable, the formalities for donations of real property must be complied with. Art. 757. Reversion may be validly established in favor of only the donor for any case and circumstances, but not in favor of other persons unless they are all living at the time of the donation. Any reversion stipulated by the donor in favor of a third person in violation of what is provided in the preceding paragraph shall be void, but shall not nullify the donation. (614a) Donation with provision for reversion  The donor may provide for reversion, whereby the property shall go back to the donor or some other person.  It may be validly established for any case and circumstances.  If the revision is in favor of other persons, they must be living at the time of the donation.  Thus, a reversion in favor of an unconceived child is void, but such nullity shall not invalidate the donation. The reversion which is merely an accessory clause is simply disregarded. Art. 758. When the donation imposes upon the donee the obligation to pay the debts of the donor, if the clause does not contain any declaration to the contrary, the former is understood to be liable to pay only the debts which appear to have been previously contracted. In no case shall the donee be responsible for the debts exceeding the value of the property donated, unless a contrary intention clearly appears. (642a) Art. 759. There being no stipulation regarding the payment of debts, the donee shall be responsible therefor only when the donation has been made in fraud of creditors.

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The donation is always presumed to be in fraud of creditors, when at the time thereof the donor did not reserve sufficient property to pay his debts prior to the donation. (643) Liability of donee to pay debts of donor  Here are the rules. 1. Where donor imposes obligation upon the donee: a. The donee is liable to pay only debts previously contracted; b. He is liable for subsequent debts only when there is a stipulation to that effect; and c. He is not liable for debts in excess of the value of the donation received, unless the contrary is intended. 2. Where there is no stipulation regarding the payment of debts a. The donee is generally not liable to pay the donor’s debts; b. He is responsible therefore only if the donation has been made in fraud of creditors (which is always presumed when at the time of the donation the donor has not left sufficient assets to pay his debts) c. He is not liable beyond the value of the donation received.  Ordinarily, the donee should not be made liable to pay the donor’s debt beyond the value of the thing donated. Donation in fraud of creditors  Presumed in fraud when at the time thereof the donor did not reserve sufficient property to pay his debts prior to the donation.  The creditors of the donor at the time of the donation may exercise the subsidiary right of rescission when they cannot in any manner collect the claims due them (accion pauliana) unless the property donated has passed into the hands of a third person in good faith for value. In the latter case, the donee shall answer for damages if he acted in bad faith. Case doctrine  Requisites for an accion pauliana: 1. Credit prior to alienation, even if demandable later 2. Debtor has made a subsequent contract conveying a patrimonial benefit to a 3rd person 3. The creditor has no legal remedy to satisfy his claim 4. The act being impugned is fraudulent 5. The third person who received the property conveyed, if is by onerous title, has been an accomplice in the fraud. 120

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b. c.

But remember that accion pauliana is subsidiary.

CHAPTER 4 REVOCATION AND REDUCTION OF DONATIONS Art. 760. Every donation inter vivos, made by a person having no children or descendants, legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced as provided in the next article, by the happening of any of these events: (1) If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though they be posthumous; (2) If the child of the donor, whom the latter believed to be dead when he made the donation, should turn out to be living; (3) If the donor subsequently adopt a minor child. (644a) Grounds for revocation and reduction of donation 1. Revocation affects the whole donation and is allowed during the lifetime of the donor. The grounds are: a. Birth, appearance, or adoption of a child (760); b. Non-fulfillment of a resolutory condition imposed by the donor (764); and c. Ingratitude of the donee. (765) 2. Reduction generally affects a portion only of the donation (unless the donee has no free portion left) and is allowed during the lifetime of the donor or after his death. The grounds are: a. Failure of the donor to reserve sufficient means for support of himself or dependent relatives; (750) b. Failure of the donor to reserve sufficient property to pay off his existing debts (759); c. Inofficiousness, that is, the donation exceeds that which the donor can give by will; (752, 771) and d. Birth, appearance, or adoption of a child. (760)  A donation that has been duly perfected in accordance with law should stand until after its revocation should have been asked and granted in the proper proceeding. Birth, appearance, or adoption of a child  This article applies to all donations inter vivos. It does not apply: a. to donations mortis causa for they are revocable at will by the donor (testator);

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to onerous donations for they are really contracts; and to donations propter nuptias for they are revocable only for the causes provided in the Family Code – see Art 86 of the Fam Code5. It is applicable when the donor, at the time he made the donation, did not have any child or descendant or erroneously thought so; otherwise, Article 771 in relation to Article 752 shall apply. Every donation is subject to revocation or reduction by the happening of any of the events mentioned which are in the nature of implied resolutory conditions.

Birth of a child  Here, the donor had no child whether legitimate, legitimated, or illegitimate at the time of the donation, and thereafter, a child was born even if posthumous.  What if the child was already conceived but not yet born, what provision should apply, Article 760 or 771? o It depends. o If the donor was aware of such conception, Article 771. Hence, he cannot revoke the donation upon the birth of the child. o But, if he did not know of such conception when he made the donation, the situation is similar to the appearance of an absent child thought by the donor to be dead. For purposes of the law, he had no child.  The rule is that a conceived child is considered born for all purposes favorable to it. Since to consider the child as already born would make the donation irrevocable and would be unfavorable to it, the subsequent birth of the child should revoke or reduce the donation.

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Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases: (1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; (2) When the marriage takes place without the consent of the parents or guardian, as required by law; (3) When the marriage is annulled, and the donee acted in bad faith; (4) Upon legal separation, the donee being the guilty spouse; (5) If it is with a resolutory condition and the condition is complied with; (6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a)

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

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The burden of proof is on the plaintiff-donor who must allege and establish the requirements prescribed by law. In the case of inofficious donations.  What is sought to be protected by Article 760 is only the prospective or presumptive legitime of the child because that is the only portion which cannot be disposed of.  If the donation does not exceed the free portion at the time of the birth, appearance, or adoption, there will be no revocation or reduction but it may still be reduced under Article 771 if it cannot be covered by the free portion computed as of the time of the donor’s death. Let us suppose Ron who was then childless, donated a property worth P50 to Erin, a close “friend.” Subsequently, a child was born to Ron whose estate at the time was P30. His total estate then including the value of the property donated was P80. Since the legitime of a legitimate child is ½ of the estate or P40, and therefore, the free portion is also P40, the donation must be reduced by P10. But if the value of the estate was P70, the donation is not revoked or reduced because it does not exceed the free portion of P60 [(P70 + 50)/2]. However, should the estate of Ron be less than P50, excluding the P50 donation, at the time of his death (for example, P40), it shall be subject to reduction to the extent that it is inofficious (i.e. P50 – P45 [(P50+P40/2) = P50) under article 771. Case doctrines  Donor has the burden to allege and establish the requirements prescribed by law for which the annulment or reduction of the donation can be based. (Cruz v CA) Art. 762. Upon the revocation or reduction of the donation by the birth, appearance or adoption of a child, the property affected shall be returned or its value if the donee has sold the same. If the property is mortgaged, the donor may redeem the mortgage, by paying the amount guaranteed, with a right to recover the same from the donee. When the property cannot be returned, it shall be estimated at what it was worth at the time of the donation. (645a) Obligation of donee upon revocation or reduction  In case of revocation or reduction under Article 760, the obligation of the donee depends upon the situation of the property donated. 122

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If the property affected is still in his possession, he must return the same. o If he has sold the property, he must give its value. o If the property has been mortgaged by him, and the donor redeemed the mortgage, he must reimburse the donor. o If the property cannot be returned, as when it ahs been lost or destroyed, he must return its value at the time of the perfection of the donation. It is presumed that the price at which the property is sold is its value. o If the price is less than its actual value, the donee is not liable for the difference absent proof of bad faith. o When the property cannot be returned, its value shall be determined not as of the time of the loss but as of the time of the donation. o

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Art. 763. The action for revocation or reduction on the grounds set forth in article 760 shall prescribe after four years from the birth of the first child, or from his legitimation, recognition or adoption, or from the judicial declaration of filiation, or from the time information was received regarding the existence of the child believed dead. This action cannot be renounced, and is transmitted, upon the death of the donor, to his legitimate and illegitimate children and descendants. (646a) Prescription of action for revocation or reduction  The donation is revoked ipso jure by operation of law, by the happening of any of the events mentioned in Article 760. o Hence, it is not really essential that an action be brought to revoke the donation. o BUT, the revocation is not self-operative or self-executory.  If the donee should refuse to comply with his obligation under Article 762, resort to judicial action is necessary under Article 763. But since it is the law itself that declares the revocation, the action is strictly not an action to revoke but one to have the court expressly declare the revocation which has already taken place by operation of law.  The period within which to bring the action is 4 years. The time to start counting depends upon the cause: o Birth of the first child; o From time of legitimation, recognition or adoption; or o From judicial declaration of filiation

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From the time information was received regarding the existence of the child believed dead.  Not from the actual appearance of the absent child. If the donor dies within the period, the action is transmitted to his legitimate and illegitimate children and descendants (not the spouse or ascendants of the donor). In case more than one cause or ground for revocation or reduction concur, the period of prescription must run from the earliest cause. Reduction of a donation upon the allegation of impairment of legitime is not controlled by a particular prescriptive period for which reason the period shall be governed under the ordinary rules of prescription. Under Article 1144, the action must be brought within 10 years from the time the right of action accrues, which is the death of the donor. The action cannot be waived. (Compare to the next article!) o

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Art. 764. The donation shall be revoked at the instance of the donor, when the donee fails to comply with any of the conditions which the former imposed upon the latter. In this case, the property donated shall be returned to the donor, the alienations made by the donee and the mortgages imposed thereon by him being void, with the limitations established, with regard to third persons, by the Mortgage Law and the Land Registration Laws. This action shall prescribe after four years from the noncompliance with the condition, may be transmitted to the heirs of the donor, and may be exercised against the donee's heirs. (647a) Failure to comply with conditions  A donation may be revoked in case of failure of the donee to comply with “any of the conditions” imposed by the donor upon him.  The word “conditions” actually refers to obligations, charges, or burdens imposed by the donor; it may also refer to a resolutory condition. Hence, what is contemplated are onerous or modal donations.  Of course, it implies that there is an existing donation.  The condition must be fulfilled within the period fixed by the donor. o No period? The court shall determine such period as may have been contemplated by the donor.  In case the donee fails to comply, the property donated reverts to the donor, along with the fruits of the property which the donee may have received after having failed to fulfill the condition.

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If the property has been alienated or mortgaged, the alienation or mortgage shall be void SUBJECT to the rights of innocent third persons under registration laws who may have taken the property donated without notice of the condition imposed. (Public policy baby!) In case of non-fulfillment by the donee of any of the conditions imposed by the donor, the donation shall be revoked at the instance of the donor. o But, the donor may instead file for an action of specific performance to compel the donee to comply with the conditions. The action must be brought within 4 years from the non-compliance with the condition – it can only be brought by the donor or his heirs against the donee’s heirs (compare to Articles 769 and 770). The death of the donor or the donee does not bar the action to revoke for failure of the donee to comply with the conditions, provided the prescriptive period has not yet expired. Unlike the action for revocation or reduction under Article 763, the action may be waived because the condition is purely contractual in nature.

Is court action necessary?  In any case, a court action is necessary if the donee refuses to return the property or to comply with the conditions.  The deed of donation, however, may provide that violation of any of its conditions shall cause the automatic rescission of the contract. In such case, upon the violation, the donation is automatically revoked, without need of a judicial declaration. o Except where the donee denies the donor’s right to rescind, in which case, judicial intervention is necessary to determine whether or not the rescission is proper.  In the absence of an agreement in the donation providing of an automatic rescission, a judicial declaration revoking said donation will be necessary. Case doctrines  When land is donated on several express conditions, acceptance by the donee will be understood to include all of the conditions not umistakably rejected. (Barreto v Manila)  When the donee has entered into possession of the property, effect will be given to the donation according to the terms of the offer and acceptance, although the formal deed has not been executed. (Barreto)

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If there is no fulfillment with the resolutory condition, the donation may now be revoked and all rights which the donee may have acquired under it shall be deemed lost and extinguished. (Central Phil University v CA) Article 764 does not apply to onerous donations because onerous donations are governed by the rules of Contracts. Hence, the prescription period is 10 years, not 4 years. (De Luna v Abrigo) o While courts are given the power to fix the duration when the condition is to be fulfilled when none is given, if the facts show that a reasonable period has already been allowed the donee to avail of the opportunity to comply with the condition, then the courts will no longer give the donee a period. (Central Phil Uni) o The legal possibility of bringing the action begins with the expiration of a reasonable opportunity of the donee to fulfill what has been charged upon it by the donor. (Sec of Education v Heirs of Dulay) Nothing in law prohibits parties from entering into an agreement that violation of the terms of the contract would cause cancellation thereof even without court intervention. o In cases like these, judicial intervention is necessary not for purposes of obtaining a judicial declaration rescinding a contract already deemed rescinded but in order to determine whether or not the rescission was proper. (De Luna) When the deed of donation expressly provides for automatic rescission and reversion of the property donated, the rules on contract and the general rules on prescription should apply, not 764. (Roman Catholic Archbishop of Manila v CA) o A donor cannot revoke the donation on the grounds for noncompliance of an impossible condition. (Archbishop of Manila v CA) A declaration of petitoner’s absolute ownership appears legally possible only when the deed of donation is contextually declared peremptorily revoked. (Dolar v Barangay Lublub) The act of selling property to a 3rd party cannot be considered as a valid act of revocation of the deed of donation for the reason that a formal case to revoke the donation must be filed which speaks of an action that has a prescriptive period of 4 years from non-compliance with the condition. In this case, there was no provision of automatic rescission, thus placing the case within the ambit of Article 764. (Austria-Magat v CA)

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When the donation is onerous and does not fix a period to comply with the condition, the courts should fix a period to uphold the greatest reciprocity of rights. If it is gratuitous, then they should not, to uphold the least reciprocity of rights and interests. It’s important to determine whether or not the donation is onerous or not so that we know what law to apply.

Art. 765. The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases: (1) If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority; (2) If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himself, his wife or children under his authority; (3) If he unduly refuses him support when the donee is legally or morally bound to give support to the donor. (648a) Revocation by reason of ingratitude of the donee  Article 765 does not apply to donations mortis causa and onerous donations.  A donation propter nuptias may be revoked by the donor when the donee has committed an act of ingratitude as specified in Article 765.  The enumeration is exclusive and cannot be enlarged.  The act of ingratitude must have been committed by the donee himself because the duty of gratitude is personal. An act imputable to the husband or wife or the hot mistress of the donee is not a ground for revocation. Offense against the donor, etc  Criminal conviction is not needed. It is sufficient that the offense be proved by mere preponderance of evidence in the action for revocation.  If the offense is committed against a child who is no longer under parental authority, the donation cannot be revoked. Imputation to donor of any criminal offense, etc  It is immaterial that the donee can prove his accusation or substantiate his testimony against the donor.

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o o

The exception is when the crime has been committed against the donee himself, his wife or children under his parental authority. The act involving moral turpitude may not amount to a crime.

Refusal to support the donor  There are two requisites: 1. The refusal to support the donor must be undue, that is, without just reason; and 2. The donee must be legally or morally bound to support the donor.  Note that ingratitude extends beyond failure to do a legal duty to support and includes a moral duty to help. (donee is a friend who is penniless and asks for help, and the donor shuns her away like a scorned lover.) Case doctrine  All crimes which offend the donor show ingratitude and are causes for revocation. Any crime under the Revised Penal Code is one involving moral turpitude. (Spouses Romulo v CA) Art. 766. Although the donation is revoked on account of ingratitude, nevertheless, the alienations and mortgages effected before the notation of the complaint for revocation in the Registry of Property shall subsist. Later ones shall be void. (649) Art. 767. In the case referred to in the first paragraph of the preceding article, the donor shall have a right to demand from the donee the value of property alienated which he cannot recover from third persons, or the sum for which the same has been mortgaged. The value of said property shall be fixed as of the time of the donation. (650) Effect of revocation on prior alienations and mortgages If by non-compliance  In case of revocation of a donation by non-compliance by the donee with any of the conditions imposed, alienations and mortgages made by the donee are void, subject only to the rights of innocent third persons. The donor can recover from the donee:

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Only the value of the property donated at the time of the perfection of the donation, OR o The sum for which it was mortgaged. Recovery cannot be had against the third person unless he acted in bad faith as when had actual knowledge of the cause for revocation or the filing of the action. o

If by reason of ingratitude  If the revocation is by reason of ingratitude, the alienations and mortgages made by the donee before the complaint for revocation is annotated in the Registry of Property shall subsist or are valid. Later alienations and mortgages shall be void.  The donor can recover the property from the transferee or mortgagee. The donation of land by Ron to Erin was made on July 10. Erin sold the land to Tara on July 20. The act of ingratitude was done on July 30. The complaint for revocation was annotated on August 10. Thus, the sale to Tara is valid, and the remedy of Ron is to recover from Eric the value of the land at the time of the donation. If the sale was made after August 10, the sale is void and Ron can recover the land from Tara. If the act of ingratitude was committed on July 20, the sale on July 30 and the complaint which was filed on July 25 and was annotated on July 31, but at the time of the sale Tara was aware of the act of ingratitude committed by Erin, or the pending action by Ron, the sale should not be considered valid because Tara acted in bad faith, and so Ron can recover the land from her. Art. 768. When the donation is revoked for any of the causes stated in Article 760, or by reason of ingratitude, or when it is reduced because it is inofficious, the donee shall not return the fruits except from the filing of the complaint. If the revocation is based upon noncompliance with any of the conditions imposed in the donation, the donee shall return not only the property but also the fruits thereof which he may have received after having failed to fulfill the condition. (651) Return by donee of the fruits of property donated  The rules depend upon the cause of revocation or reduction

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If the cause is:  the birth, appearance or adoption of a child, or  ingratitude, or  inofficiousness of the donation (because the donor did not reserve sufficient means for support), or  he donated more than he could give by will, then  only the fruits accruing from the filing of the complaint need be returned.  It can be implied that the donation remains valid up to the time of the filing of the complaint. If the cause is the non-fulfillment of any of the conditions imposed in the donation, the fruits must be returned from the time of the breach of the condition. The donation shall also return the property donated. In case of inofficious donation which exceeds the free disposal by will, the donation takes effect during the lifetime of the donor, the donee appropriates the fruits, and the reduction may be asked only after the donor’s death. o

 

Art. 769. The action granted to the donor by reason of ingratitude cannot be renounced in advance. This action prescribes within one year, to be counted from the time the donor had knowledge of the fact and it was possible for him to bring the action. (652) Renunciation and prescriptive period of action by reason of ingratitude  The action granted to the donor for revocation by reason of ingratitude, like the action based on the birth, appearance, or adoption of a child cannot be renounced in advance.  What the law prohibits is waiver, prior to the commission of the act of ingratitude.  A past ingratitude can be the subject of a valid renunciation because the renunciation can be considered as an act of magnanimity on the part of the donor.  The action prescribes… 1. Within one year from the time the donor had knowledge of the act of ingratitude AND 2. It was possible for him to bring the action.  To bar the action, the donee must show proof that the one-year period has expired and it was possible for the donor to institute the said action within the same period.

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Art. 770. This action shall not be transmitted to the heirs of the donor, if the latter did not institute the same, although he could have done so, and even if he should die before the expiration of one year. Neither can this action be brought against the heir of the donee, unless upon the latter's death the complaint has been filed. (653) Transmission of action for revocation  General rule: The action to revoke a donation by reason of ingratitude is purely personal to the donor and cannot, as a rule, be transmitted to the heirs.  This is unlike the action for revocation based on the birth, appearance or adoption of a child and the action based on non-compliance with the condition of a donation.  However, the particular circumstances of the case should be taken into account to determine whether it was possible to bring the action. Hence, the following exceptions wherein the heirs of the donors can ask for the revocation: 1. If the donee killed the donor, or 2. If the donor dies without having known of the act of ingratitude, or 3. If a criminal case against the donee was instituted by the donor, but the donor dies before he could bring the civil action for revocation; or 4. If the action for revocation has already been filed by the donor before his death. Action against heirs of donee  The heirs of the donee are not held responsible for the acts of their predecessor-donee. The act of ingratitude. (The sins of the father are not the sins of the son… although, there are some instances where we repeat the mistakes of our parents. General rule? Learn.)  But if the donor has already filed the complaint before the donee’s death, the suit may be continued against his heirs. Art. 771. Donations which in accordance with the provisions of Article 752, are inofficious, bearing in mind the estimated net value of the donor's property at the time of his death, shall be reduced with regard to the excess; but this reduction shall not prevent the donations from taking effect during the life of the donor, nor shall it bar the donee from appropriating the fruits.

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For the reduction of donations the provisions of this Chapter and of Articles 911 and 912 of this Code shall govern. (654) Reduction of inofficious donations  Donations which are inofficious because they are more than what the donor can give by will shall be reduced with regard to the excess upon the death of the donor, after determining the net value of the estate.  Thus, it follows that the donation is effective during the lifetime of the donor and so, the donee, as owner of the property donated also becomes owner of the fruits, although the donation should appear inofficious.  For donations propter nuptias, they may be reduced for being inofficious. Being liberalities, they remain subject to reduction for inofficiousness upon the donor’s death, if they should infringe the legitime of a forced heir.  The action to reduce the inofficious donation must be brought within 5 years from the time of the donor’s death.  For reduction of donations, the following articles, quoted below shall govern: Art. 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows: (1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will; (2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever. If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime. (3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a) Art. 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them.

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The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime. (821) Art. 772. Only those who at the time of the donor's death have a right to the legitime and their heirs and successors in interest may ask for the reduction or inofficious donations. Those referred to in the preceding paragraph cannot renounce their right during the lifetime of the donor, either by express declaration, or by consenting to the donation. The donees, devisees and legatees, who are not entitled to the legitime and the creditors of the deceased can neither ask for the reduction nor avail themselves thereof. (655a)

Reduction where there are two or more donations  The subsequent donations shall first be reduced and only if they are not sufficient to cover the disposable portion should the earlier ones be reduced also with regard to the excess.  If the two donations were perfected at the same time, the reduction should be proportionate unless otherwise provided by the donor. Rules on revocation… CHARTED! REVOCATION, based on… Time of action

Persons entitled to ask for reduction… who are they?  For the reduction of inofficious donations, 1. those who at the time of the donor’s death have a right to the legitime, and 2. their heirs, and 3. succesors in interest.  The donor is not included, patay na siya eh. The inofficiousness can only be determined after his death. Who may not ask for reduction? 1. The donees, or 2. The devisees, or 3. The legatees, who are not entitled to the legitime. 4. Creditors of the deceased. (The remedy of creditors is to file a claim against the estate of the deceased, but not against the owners of the donated property.)

Transmissibility of action

Renunciation of right to ask for reduction… can it be done?  The right to ask for the renunciation of inofficious donations cannot be renounced during the lifetime of the donor, ether by express declaration or by consenting to the donation. 773. If, there being two or more donations, the disposable portion is not sufficient to cover all of them, those of the more recent date shall be suppressed or reduced with regard to the excess. (656)

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Effect of revocation

Birth, appearance, or adoption of a child Within 4 years from birth of first child, or From his legitimation, or Adoption, or From the judicial declaration of filiation, or From receipt or info regarding the existence of the child believed dead Transmitted to children and descendants of the donor upon his death

Property affected shall be returned, or its value if the donee has sold

Non-compliance with condition or conditions

Ingratitude

Within 4 years from noncompliance with the condition

Within 1 year from the time the donor had knowledge of the fact of the ingratitude

But if it’s an onerous donation, within 10 years from non-compliance with the condition May be transmitted to the donor’s heirs and may be exercised against the donee’s heirs Property donated shall be returned to the donor and the alienations and

Generally, the action is not transmitted to the heirs of the donor nor can the action be filed against the heirs of the donee Property donated shall be returned but alienations and mortgage

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Liability for fruits

the same, or The donor may redeem the mortgage on the property, with a right to recover the property Donee shall return the fruits accruing from the filing of the complaint

mortgages are void subject to the rights of innocent 3rd persons Donee shall return the fruits which he may have received after having failed to fulfill the condition

effected before the notation of the complaint for revocation in the Registry of Property shall subsist Same as in first column

Transmissibility of action

Effect of revocation

Not transmissible as the duty to give support and the right to receive are personal in nature Reduced to the extent necessary to provide support

Transmitted to the donor’s heirs as the donation shall be reduced as regards the excess at time of the donor’s death Takes effect during the lifetime of the donor subject to reduction only upon his death with regard to the excess

Same as in first column

Transmitted to the creditor’s heirs or successorsin-interest

Same as in first column

Donee is entitled to the fruits as owner of the property donated

Donee appropriates the fruits as owner of the property

Donee, as owner, appropriate s the fruits of the property not affected by the reduction, but with regard to the excess, he shall be liable only for the fruits from the filing of the complaint

Property affected shall be returned by the donee for the benefit of the creditor subject to the rights of innocent third persons Fruits of the property affected shall also be returned. In case the donee acted in bad faith and it should be impossible for him to return, then indemnify the donor’s creditor for damages.

Rules on reduction… CHARTED! REDUCTION, based on…

Time of action

Failure of the donor to reserve sufficient means for support Any time by the donor or by the relatives entitled to support during the lifetime of the donor

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Inofficiousness for being in excess of what the donor can give by will

Birth, appearance , or adoption of a child

Fraud against creditors

Within 10 years (Santos v Alana case, based on 1144)

Same as in first column

The action for rescission must be brought within 4 years from the perfection of the donation, or at the latest, from the time the creditor had knowledge of the donation

Within 5 years after the death of the donor (if propter nuptias, according to book)

Liability for fruits

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Happy the man who finds wisdom, the man who gains understanding!-Proverbs 3:13 Thus you may walk in the way of good men, and keep to the paths of the just. For the upright will dwell in the land, the honest will remain in it; But the wicked will be cut off from the land, the faithless will be rooted out of it.-Proverbs 2:20-22

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