Prop TSN Full (Batacan)

 

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B A S I C P R I N C I P L E S : LAW ON PROPERTY

Compiled and discussed by ATTY. ED C. BATACAN

PROPERTY, concept of: (Civil law concept) – All things t hings whether  tangible [physical objects] or intangible [rights] which are or may be the object of appropriation. (See Art. 414 NCC).

conditions  are met: a) The parties mutually agree to consider  conditions  the real property [i.e. house], a personalty; and b) That no innocent third person shall be prejudiced thereby.

It follows that those which cannot be appropriated   are not considered property. [i.e. stars, moon, air, planets, etc.]

The validity of the chattel mortgage constituted on a house cannot be questioned by the owner of the house because he is placed under estoppel from denying the existence of the chattel

However, in Escano vs. Gil  [CA]  [CA] February 11, 1958, it was held that the right to office, though not a vested property right, in a technical sense, is property. An office may be considered as property in controversies relating to the question as to which of  two persons is entitled thereto. In Cornejo vs. Gabriel, 41 Phil. 200 , it was ruled that property, under the due process clause of the Constitution, includes the right to hold, occupy and exercise an office. What is appropriation appropriation?? The New Civil Law Code does not define what appropriation is, but it has been considered as equivalent to occupation,, which is the willful apprehension of a corporeal occupation object which has no owner, and with intent to acquire its ownership. Those that can be subject of ownership PROPERTY, classification of: (See of: (See Art. 414, NCC) § §

Immovable or real property; Movable or Movable  or personal property.

Why is there importance to classify? classify? Because different provisi provisions ons of the law govern the acquisition acquisition,,  possessio  possessionn, disposition disposition,, loss and registration registration of  of immovable and movable. For example: a.

b.

c.

Donations of real property   (like land) must be in a public instrument, otherwise the alienation will be null and void even as between the parties. On the other  hand, the donation of a movable (like movable (like a ring valued at say P5,000.00), P5,000.00), needs only only to be in a private instrument. (see Art. 748, NCC). The oowner wnership ship over a real real proper property ty may be aacquire cquiredd by prescription (see Art.of1137) in 30 years in (bad whereas, acquisition personal property badfaith); faith needs only 8 years (see Art. 1132, NCC). Gene Generally rally,, to aaffe ffect ct thi third rd persons persons,, transac transactio tions ns involv involving ing real property must be recorded   in the Registry of  Property; this is not so in the case of personal property.

mortgage. In Tsai vs. Court Of Appeals, 366 SCRA 324, 324, it was held that the nature of the disputed machineries, i.e., that they were heavy, bolted or cemented on the real property mortgaged, does not make them ipso facto immovable under Article 415 (3) and (5) of  the New Civil Code, as the parties’ intent has to be looked into. While it is true that the controverted properties appear to be immobile, a perusal of the Contract of Real and Chatttel Mortgage executed by the parties show a contrary indication. In the case at bar, the intention of the parties is to treat the said machineries and equipment as chattels. The parties executed a Real Estate Mortgage and Chattel Mortgage, instead of just Real Estate Mortgage if indeed their intention is to treat all the properties included therein as immovable. Also attached to the said contract is a separate “List of that Machineries andintend Equipment”. These facts evince the conclusion the parties to treat the machineries as chattels. QUESTION: May a building subjected to a chattel mortgage be QUESTION: sold extra-judicially   in accordance with the provisions of Real Estate Mortgage Law?  A: In Luna vs. Encarnacion, 91 Phil 531, 531, it was held that a building subjected to chattel mortgage cannot be sold extra judicially  under  under the provisions of Act 3135 since the Article refers only to real estate mortgage. In Manarang vs. Ofilada, 99 Phil 108 , it was ruled that auction sales on execution upon judgment, the building or house shall be treated as real property, and therefore, the rule on foreclosure of  real estate mortgage must be followed.

IMMOVABLE PROPERTY Classes of Immovable (IN GENERAL): GENERAL): a)

Immovables by nature  nature  - those which cannot be moved from place to place because of their nature, such as land (par 1 Art. 415), mines, quarries and slag dumps (par 8, Art. 415);

b)

Immovables by incorporation  incorporation  - those which are essentially movables, but are attached to an immovable in such manner as to become an integral part thereof. [Examples: those mentioned in par 1, 2, 3, 4 & 6, Art. 415, except land, buildings and roads];

c)

Immovables by destination  destination  - those which are essentially movables, movables, but by the purpose for which they have been placed in an immovable, partake the nature of the latter because of the added utility derived

QUESTION: May parties by agreement  treat QUESTION:  treat as personal property that which by classifi classification cation under the law be real property?  A: Technically, it would seem that under the Civil Code, it is only the LAW which may consider certain real property (like growing crops) as personal property for the purpose of making a chattel mortgage. (See Art. 416, par.2). Also, for purposes of taxation, improvements on real property which are essentially movables may be considered as subject to real property tax. However, in Evangelista vs. Abad, 36 O.G. 2913  2913   and Navarro vs. Pineda, 9 SCRA 631, 631, the Supreme Court ruled that a real property may be treated as personal property provided that two

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therefrom, such as those mentioned in pars 4, 6, 7 & 9 of Art. 415); d)

Art. 415. The following are immovable property: PARAGRAPH

1: 1:

Land,

buildings,

roads

and

constructions of all kinds adhered to the soil. REMINDERS : LAND:: LAND

Land  by   by its very nature is immovable. And even, if land is moved by an earthquake or an extra-ordinary happening, the land should still still be conside considered red immovable. A truckload of soil soil [i.e. garden soil] should be considered personal property since there is no longer adherence to the soil. Even if land is rented, it is still considered as immovable. ·

BUILDINGS:: BUILDINGS

Buildings of  of  permanent  permanent structure structure   are always classified as immovable. It is immaterial whether it is built on a rented or  owned land. The nature of the building as property does not depend on the way the parties deal with it [see: Leung Yee vs Strong Machinery Co. 37 Phil. 664.] Buildings are considered immovable provided provided they are more or less permanent substantial substantially ly adhering to the land, and not not mere super-impositions on the law. In Luna vs Encarnacion, it was held that a structure which is merely superimposed on a land like a temporary shelter for workers is not real or immovable property. ·

1.

Even if th thee la land nd is being being llease easedd by anot another, her, and the fruits belong to the tenant, t enant, the fruits are still considered as immovable because no exception or qualification is made under the Civil Code.

2.

Howe However, ver, when the fruit fruitss al althou though gh un ungathe gathered red aare re ssold old,, as when the entire harvest is sold before being actually gathered, it is considered as a sale of movables. [Mobilized by anticipatio anticipation] n]

Immovables by analogy or by law   - those mentioned in par 10, Art. 415; right of usufruct; easements and servitudes.

Classes of Immovables (SPECIFICALLY):

·

Rule on ungathered fruits:

CONSTRUCTIONS:: CONSTRUCTIONS

  It is understood that the attachment must be more or less permanent. A wall or a fence is good example of this kind of  immovable by incorporation. As long as there is an intent to permanently annex the same, it is immaterial whether the materials used is only made of stone. Railroad tracks or rails come under this category.   Wooden scaffoldings scaffoldings   on which carpenters stand while constructing a house are merely personal property in view of the lack of “adherence” to the soil or the intent to permanently annex the same to the soil.

In Sibal vs. Valdez, 50 Phil 512 , the Supreme Court held that for  purposes of attachment and exec execution, ution, and fo forr purposes of the Chattel Mortgage Law, ungathered products have the nature of  personal property. PAR. 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. Under this paragraph, for the incorporated thing to be considered real property, the injury or breakage or deterioration in case of  separation, must be substantial . [Examples: A fixed fire escape stairway firmly embedded in the walls of the house; aqueduct; or  a sewer or a well. In CBAA vs.ofMERALCO, 328 ,toit an wasimmovable ruled thatinthe steel towers MERALCO 119 not Phil. attached a fixed manner are not realty and therefore, not subject to realty tax. The towers can be separated from the ground without breaking or causing deterioration upon the object to which they are attached. However, in Caltex vs. CBAA, 114 SCRA 273, 273, it was held that storage tanks installed on land leased from Caltex are subject to realty tax, they being improvements on realty . In Berkenkotter vs. Cu Unjieng, 61 Phil 683, 683, it was ruled that machinery for breweries utilized in the liquor or soft-drink manufacturing, though movable in nature, are immobilized by destination being essential to said industry. In Mindanao Bus Co. vs. City Assessor, 116 Phil 501, 501 , it was held that machinery of a transportation company such as welding, boring machine, lathe machine “sitting on a cement platform” which are not essential to the ttransportation ransportation busi business ness of  the owner of the tenement do not constitute realty.

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

Effect of separation: separation: If the thing incorporated is temporarily removed with the intention to replace the same, the thing is considered as personal property because the incorporation had ceased. The material fact of incorporation or separation is what determines the condition of the tenement; it recovers its status as movables, irrespective of the intention of the owner.

Trees and plants no matter what their size may be are considered real property. By nature - if they are the spontaneous products of the soil, and by incorporation - if they were planted thru labor.

PAR. 4: Statues, reliefs, paintings or other objects for  use or ornamentation, placed in building or on land by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the

But the moment they are detached or uprooted   from the land, they become personal property, except in the case of uprooted timber , if the land is timberland, because although no longer  attached, the timber still forms an “integral part” of the timberland.

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tenements. These are immovables both by incorporation and by destina destination tion..

 

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Example:: Example  A fixed f ixed statue in the garden of the house; a permanent painting on the ceiling; a picture embedded in the concrete walls of a house; a rug or carpet fastened to the floor (wall-to-wall carpeting). The objects must be placed by the owner of the immovable (buildings or lands) and not necessarily the owner of the object. If  placed by a mere tenant, the objects must remain chattels or  personalty (See: Davao Sawmill vs. Castillo, 61 Phil 709). 709). However, in Valdez vs. Central Altagracia, 255 U.S. 58 , it was held that where the owner of a tenement entered into a contract with a lessee, stipulating that the lessee shall place certain objects in the property leased, and that such objects shall remain with the property upon the termination of the lease, without any obligation on the part of the owner to reimburse the lessee, the tenant acts as an agent of the owner in giving by contract a permanent destination to them. Effect of separation: In  Ago vs. Court of Appeals, 6 SCRA 530 , it was held that the moment these objects are separated from the land or building or from the industry or works, they regain back their condition as personal property. PAR. 5: 5: Machinery, receptacles, instruments, or  implements intended by the owner of the tenement for  an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works. These are immovables by purpose or destination. destination. Essential requisites: requisites: 1.

2. 3.

The placin placingg mu must st be be made made by by the the owner owner of tthe he tenement, his agent, or duly authorized legal representative; The in indust dustry ry or works mus mustt be carri carried ed on in the the buildi building ng or on the land; The m mach achines ines,, etc. etc. mus mustt tend dir direct ectly ly to meet meet the the needs of said industry, and not merely incidental.

In Mindanao Bus Co. vs. City Assessor, 116 Phil 501, 501 , it was ruled that a transportation business is not carried on in a building or in the compound. compound. Cash registers, registers, typewriters, typewriters, etc. usually usually found and used in hotels, restaurants, theaters, etc., are merely incidentals, and should not be considered immobilized by destination for these business can continue or carry on their  functions without these equipments. The same applies to the repair or service shop of the transportation business because the vehicles may be repaired or serviced in another shop belonging to another. In Berkenkotter vs. Cu Unjieng, 61 Phil 663, 663, the Supreme Court held: “Machinery intended by the owner of any building or  land for the use in connection with any industry or trade being carried on therein and which are expressly adapted to meet the requirements of such trade, are considered as real property. If  the installation of the machinery and equipment in question in the central converted them into real property by reason of their  purpose, it cannot be said that their incorporation therewith was not permanent in character because, as essential and principal

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elements of a sugar central, without them the sugar central would be unable to function or carry on the industrial purpose for which it was established. The new machinery must, therefore, be considered as subject to the real estate mortgage in favor of the defendant.” Effect of separation: separation: If the machines are still in the building, but no longer used in the industry conducted therein, the machines revert to the condition of a chattel. The moment they are separated from the purpose of the industry (not necessarily from the immovable), they recover their (not necessarily from the immovable), they recover recover their conditio conditionn as movables (see: Ago (see: Ago vs. Court of Appeals, 6 SCRA 530 ). ). On the other hand, if still needed for the industry, but separated from the tenement temporarily, the property continues to be immovable, inasmuch as par. 5 refers not to real property by incorporation, but to real property by destination or purpose. PAR. 6: 6: Animal houses, pigeon-houses, beehives, fishponds or breeding places or similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent permanent part of it; the animals in these places are included. in cluded. The houses referred to here may already be deemed included in par. 1Even whenifspeaking of “constructions of all kinds adhered the soil.” the animals are temporarily outside, they mayto still be considered as real property as long as the intent to return  return  is present, as in case of a homing pigeon. But from the viewpoint of  criminal law, they are considered as personal property and may properly be the objects of theft or robbery robbery.. When the animals inside the permanent animal houses are alienated onerously or gratuitously, the transaction is an alienation of personal property, unless the building or the tenement itself is also alienated . This is because in said alienation, the animal structures must of necessity be detached from the immovable. Hence an ordinary inter-vivos donation of a pigeon-house need not be in a public instrument. PAR. 7: Fertilizers actually used on a piece of land. Fertilizers still in the barn and even those already on the ground but wrapped inside some newspapers or any other covering are still to be considered personal property, for they have not yet been “actually” used or spread over the land. The fertilizers should be on the land where they are to be utilized, because it is only that the intention of the owner to use them on the tenement is beyond doubt. Hence, fertilizers kept in the farmhouse are not immovable immovable.. PAR. 8: Mines, quarries, and slag dumps while the matter thereof forms part of the bed, and waters, either  running or stagnant. Mines, including the minerals still attached thereto, are real properties, but when the minerals have been eextracted, xtracted, the lat latter  ter  become chattels. Slag dump is the dirt and soil taken from a mine and piled upon the surface of the ground. Inside the “dump “ dump”” can be found the minerals.

 

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The “waters “waters”” referred to are those still attached to or running thru the soil or ground. But the “water” itself as distinguished from “waters” is clearly personal personal property. On the oth other er hand, canals, canals, rivers, lakes, and such part of the sea as may be the object of  appropriation, are classified as real property. PAR. 9: Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, or coast.

MOVABLE PROPERTY Art. 416. The following things are deemed to be personal property: 1.

Examples: cell phones; money; ring; cars. 2.

 A floating house tied to a shore or bank post and used as a residence is considered real property, considering that the “waters” on which it f loats, are considered immovables. immovables. In a way, we may say that the classification of the accessory (the floating house) follows the classification of the principal (the waters). However, if the floating house makes it a point to travel from place to place, it assumes the category of a vessel. By express provision of Art. 585 of the Code of Commerce, vessels are movable property; but they partake, to a certain extent, of the nature and conditions of the property, on account of  their value and importance in the world of commerce. (See: Rubiso vs. Rivera, 37 Phil. 72 ) Vessels are considered personal property. As a matter of fact, they are indeed very movable, (see: PRC vs. Jarque, 61 Phil  229)) because they are personal property, they may be the 229

Those movables susceptible of appropriation which are not included in the th e preceding article.

Real property which by any special provision of law iiss considered as personalty.

Examples: Growing crops for the purpose of the Chattel Mortgage Law (see: Sibal vs. Valdez, 50 Phil. 512 ); ); machinery placed on a tenement by a tenant, who did not act as the agent of the tenement owner (see: Davao Sawmill vs. Castillo, 61 Phil. 709). 709). 3.

Forces of nature which are brought under control by science.

Examples: Electricity, gas, light, nitrogen (see: US vs. Carlos, 21 Phil. 543). 543). 4.

In general general,, all things which can be transpor transported ted fr from om place to place without impairment of the real property to which they are fixed.

subject of13thePhil chattel mortgage. vs. 7  Espanol-  Filipino, 429; Arroyo 429; vs.(See: Yu deMcMicking Sane, 54 Phil Sane, )

  Examples: Machinery not attached to land or needed for the carrying on of an industry conducted therein.

PAR. 10: Contracts for public works, w orks, and servitudes and other real rights over immovable property.

Test to determine whether property is movable or  immovable: a)

The properties referred to in this paragraph are not material things but rights, which which are necessarily intangible. The piece piece of  paper on which the contract for the public works has been written is necessarily personal property, but the contract itself, or the right of the contract is real property.  A servitude or easement is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner, or for the benefit of a person, group of persons, or a community [ex. Easemen Easementt of right of way]. Other real rights over real property include real estate mortgage, antichresis, possessory retention, usufruct, leases of real property, if registered; or even if not registered, if their duration is for more than a year. Usufruct of personal property   or a lease of personal property should be considered personal property. In the case of Presbitero of  Presbitero vs. Fernandez (March 30, 1958), 1958), the Supreme Court held that sugar quotas are real property, for they are by law considered “real rights over immovable property” just like servitudes and easements. Court jurisdiction: In Cabutihan vs. LCDC, 383 SCRA SCRA 353, 353, it was held that that actions affecti affecting ng title to or possession possession of of real property or an interest therein shall be commenced and tried in the proper court court that has territorial jurisdiction jurisdiction over over the area where the real property is situated.

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b)

c)

If the prope property rty iiss ca capable pable of be being ing ccarrie arriedd from place place to place. (Test by description) If suc suchh cha change nge iinn loc locatio ationn can be m made ade w withou ithoutt injuring injuring the real property to which it may in the meantime be attached. (Test by description description)) And ifif fina finally lly,, the obje object ct iiss not one of tho those se eenumera numerated ted or included in Art. 415. (Test by exclusion exclusion))

(If the answer is YES) Then the inevitable conclusion is that the property is personal property. Note:: Test by exclusion is superior to test by description. Note Art. 417. The following are also considered as personal property: 1.) Obligations and ac actions tions which ha have ve for ttheir heir object movables or demandable sums. REMINDERS: The term obligations obligations really  really refers to ”credits” and also includes bonds, bonds, which are technic technically ally obligations of the entity issuing them;  Actions  Actions   – if somebody steals my car, my right to bring action to recover the automobile is personal property by itself; A promissory note is a personal property; the right to collect it is also a personal property. 2)

Shares of stock of agr agricultural, icultural, commercial and industrial entities, although they may have real estate.

  Although the provisions ooff par. 2 seem to refer only to corporations by the words “shares of stocks”, and only to those engaged in agriculture, commerce, and industry, nevertheless, all  juridical persons must must be deemed included.

 

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  A share of stock in a gold mining corporation corporati on is also personal property; but the gold mine itself, and any land of the corporation, are regarded as real property by the law. The certificate evidencing ownership of the share, and the share itself, are regarded as personal property. Being personal, they may be the object of a chattel mortgage (see: Chua Guan vs. Samahang Magsasaka, Inc. 62 Phil. 472) 472 )  A half interest in drugstore business is is personal property ccapable apable of being the subject of a chattel mortgage (see: Strochecher vs. Ramirez, 44 Phil. 933). 933). However, a half-interest in a drugstore, considered as a building (not a business) is a real right in real property and is therefore by itself a real property. In Hongkong and Shanghai Bank vs. Aldecoa, 30 Phil 255 , 255 , it was held that real estate mortgages are realty and not personalty.

PROPERTY IN RELATION TO THE PERSON TO WHOM IT BELONGS Art. 419. Property is either of public dominion or of private ownership. The State may own properties both in its public capacity (public dominion) and private capacity (patrimonial). § Public dominion  dominion  – ownership by the state in its public capacity or in the exercise of its governmental functions. functions. §

Patrimonial   –– ownership by the State in its private capacity or  in the course of its proprietary functions. This is the property over which the State has the same rights, and for which it may dispose, to the same extent as private individuals in relation to their property, subject only to the administrative laws and regulations on the procedure of exercising such rights. They exist for the State to attain its economic ends, as a means for  its subsistence, and the preservation of its natural natural organism.

What are properties of public dominion? [see Art 420, NCC] a.

Th Thoose inten ntendded for  for  public  public use, use, such as roads, canals, rivers, torrents, ports roadsteads, and bridgesand constructed by the state, banks, shores, others of similar  character;

b.

Tho Those se which which bbelo elong ng to the the state, state, with withou outt being being for  for  public use, and are intended for some public some  public service service or  for the development of the national wealth.

In Usero vs. CA, 353 SCRA 449, 449 , the SC held that the phrase “others of similar character” includes a creek which is a recess or  an arm of a river. It is property belonging to the public domain which is not susceptible to private ownership. Being public water, a creek cannot be registered under the Torrens System in the name of any individual. Characteristics: 1. 2.

Th They ey ma mayy bbee real real or or pe pers rson onal al;; The Theyy canno cannott be llevi evied ed or attache attached; d; [[Tan Tan Toco vs. Mun. Council of Iloilo, 49 Phil 52 ]];;

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3. 4. 5. 6.

They cann cannot ot bbee re registe gistered red under under the the LLand and Regis Registration tration Law; The Theyy canno cannott be ac acqui quired red bbyy pre presc scri ripti ption on [[Harty Harty vs. Mun. of Victoria, 13 Phil. 152 ];]; The Theyy are are ou outsi tside de tthe he ccomm ommerc ercee of of ma mann [Mun. [Mun. of  Cavite vs Rojas, 30 Phil 20 ];]; They cann cannot ot bbee bur burdened dened by any volu voluntar ntaryy ea easeme sement. nt.

Property for  PUBLIC USE , defined: defined: It can be used by everybody, even by strangers or aliens in accordance with its nature; but nobody can exercise over it the rights of a private owner. Thus, no private person can have a property right in the use of a street for his private business, nor can he acquire over  such a right to possession as would require the exercise of  possessory actions. In Republic vs. Gonzales, 199 SCRA 788 , it was held that: the conception urged by appellants to restrict property reserved for  public use to include only property susceptible of being used by a generally unlimited number of people is flawed and obsolete, since the number of the users is not the yardstick in determining whether property is properly reserved for public use or benefit. To constitute public use, the public in general should have equal or common rights to use the land or facility involved on the same terms, however limited in the number of people who can actually avail themselves of it at a given time. There is nothing in the law which excludes non-car owners from using a widened street or a parking area should should they in fact happen to be driving cars. cars. The opportunity to avail of the use thereof remains open for the public in general. In Villarico vs. Sarmiento, 110 SCRA 442 , the SC ruled that: “Public use is use that is not confined to privileged individuals but is open to the indefinite public. Records show that the lot on which the stairways were built is for the use of the people as passageway to the highway. Consequently, it is a property of  public dominion.” Property for PUBLIC SERVICE: SERVICE: - This kind of property includes all property devoted for public service. In Baguio Citizens  Action vs. City Council, 121 SCRA 368 , it was was held held tha that all public buildings constructed by the State for its offices and functionaries belong to this class. QUESTION:  Are rivers whether navigable or not, properties of  public dominion?  A: It would seem that that Art. 420 NCC makes no distinctio distinction. n. However, in Palanca vs. Commonwealth, 40 OG 148 , the Supreme Court said: “The river Viray and the estero Sapang Sedoria, being navigable, navigable, useful for commerce, for navigation, and fishing, they have the character of public domain.” In Taleon vs. Secretary of Public Works, L-24281, May 16, 1967 , it was held that if a river is capable in its natural state of  being used for commerce, it is navigable in fact, and therefore, becomes a public river. In Martinez vs. Court of Appeals, 56 SRCA 647 , it was held that navigable navigable   rivers are outside the commerce of man and therefore cannot be registered under the Land Registration Law. If converted into fishponds, the latter can be demolished

 

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notwithstanding the title, for said title cannot convert the streams into private ones. In Mercado vs. Municipal President of Macabebe, 59 Phil 592 , it was ruled that creeks creeks which  which are mere extensions of rivers are considered property of public domain.

CONVERSION

thing, but also in the right to use and utilize the same according to its natural destination and in the right, besides, to make the thing serve one’s necessities, one’s pleasures, and even, within the letter and spirit of the law, personal whims. QUESTION: If a land has been foreclosed by the mortgagee, does the mortgagor still have the right to enjoy his foreclosed property?

Art. 422. Property of public dominion, when no longer 

 A: YES, but only during the period of redemption. In GSIS vs. CA, 377 SCRA 54, 54, it was held that the mortgagor has the right to

int intend ended ed fo forr pub public lic use use or for publi publicc servi service, ce, sha shall ll form form part of the patrimonial property of the state.

redeem his property, possession, use and enjoyment of the same during the period of redemption.

Note:: Note

Limitations on ownership:

¬

¬

When change takes effect?   Property of public dominion ceases to be such and becomes private property of the State only upon declaration by the government, thru the legislative or  executive departments, to the effect that it is no longer needed for public use or public service. If the property has been intended for such use or service, and the government has not devoted it to other uses, or adopted any measure which amounted to a withdrawal thereof from public use or service, the same remains property for public use or service notwithstanding the fact that it is not actually devoted devoted for public use or service. (See:Capitulo, (See:Capitulo, et. al. vs. Aquino 53 OG 1477  1 477 ) Who shall declare?   In the case of  Faustino vs. Dir. Of  Lands, L-12958, May 30, 1960 , the Supreme Court, (citing Natividad vs. Dir. Of Lands, CA 37 OG 2905) 2905 ) said that only the executive and possibly the legislative departments have the authority and power to make the declaration that any land so gained by the sea is not necessary for purposes of public utility, or for the establishment of special industries. If no such declaration has been made by the said departments, the lot in question forms part of the public domain.

Consequently, until there is made a formal declaration on declaration on the part of the government thru the executive department or the legislature, the parcel in question continues to be part of the public domain and cannot be subject to acquisitive prescription. In Laurel vs. Garcia, 187 SCRA 799, 799, the Supreme Court said : It is not for the President to convey valuable valuable real property of the government on his or her own sole will. Any such conveyance must be authorized and approved by law enacted by Congress. Congress. It requires executive and legislative concurrenc concurrence. e. See: Coaco vs. Bercilles, 66 SCRA 481. 481.

1. 2. 3.

4.

Imposed by law : Easement of right of way; party wall; drainage. Imposed by state: state: Police power; Power of taxation; t axation; Power of  eminent domain. Imposed by owner : In cases of lease, the owner cannot in the meantime physically occupy the property; (also pledges). Imposed by grantor : The donor may prohibit the donee from partitioning the property for a period not exceeding 20 years.

DOCTRINE OF SELF-HELP Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or  threatened unlawful physical invasion or usurpation of his property. This article was taken from  from  Art. 227 of the German Civil Code which provides: An provides:  An act impelled i mpelled by legitimate necessity shall not  be unlawful. Legitimate necessity consists in the defense indispensable to repel, personally or thru another, an actual or  unjust situation. Principle of self-help:  self-help:  It is lawful to repel force by means of  force. It implies that the state of things to be defended enjoys  juridical protection. It is sort of self-defense self-defense,, where the use of  such necessary force to protect proprietary or possessory rights constitutes a justifying circumstance under the Penal Code. The actual invasion of property may be: a.

Mere disturbance of possession  possession  – force may be used against it at any time as time as long as it continues, even beyond the prescriptive period for an action of forcible entry. Thus if a ditch opened by Pedro in the land of  Juan, the latter may close it or cover it by force at any time.

b.

Real dispossession – dispossession – force, to regain possession can only be used immediately   after the dispossession. Thus, if Juan without the permission of Pedro picks up a book belonging to the latter and runs off with it, Pedro can pursue Juan and recover the book by force. force .

See also: International Hardwood vs. Univ. of the th e Philippines,  August 13, 1991, 200 SCRA SCRA 554 554..

OWNERSHIP IN GENERAL Art. 427. Ownership ma mayy be exercised exercised over things over things or rights. rights. A person person has the right right to contro controll a thi thing ng partic particular ularly ly in his possession, enjoyment, disposition, and recovery, subject to no restriction except those imposed by the law. Right to Enjoy: Enjoy: In Marcos vs. Endencia, 38 O.G. 855 , it was ruled that the right to enjoy consists not only in the right to collect the rents or fruits, in short, the benefits which accrue from the

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In German Management & Services, Inc. vs. CA, 177 SCRA 495 , it was held that the doctrine of self-help can only be

 

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exercised at the time of actual or threatened dispossession. When possession had already been lost, the owner must resort to judicial process for the recovery of property. In People vs. Segovia, 103 Phil 1162 , the SC ruled that the owner of the plants who shot an animal to death, out of  vengeance is not justified under the rule. The proper move for  him to do is to drive away the animal and then seek damages from the owner of the t he animal. For shooting and killing the animal, he can be convicted of malicious mischief. Nature of the aggression: The aggression must be illicit or  unlawful.. The right to self-help is not available against the unlawful exercise of right by another, such as when the latter executes an extra-judicial abatement of nuisance. Neither can it be used against the lawful exercise of the functions of a public official, such as a sheriff attaching property.

DOCTRINE OF ACTS IN A STATE OF NECESSITY Art. Art. 43 432. 2. th thee ow owne nerr of a thin thing g ha hass no righ ightt to proh prohib ibit it th thee interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. The owner may demand from the person benefited indemnity for the damage to him. This article, following the same principle of self-help contained in the second part of Article 429, allows the use of defensive force to preserve an existing situation, situation, as against an external event which the passive subject is entitled to repel as much as an unlawful aggression by another. Examples of danger contemplated by this article are: the attack Examples of of animals, the spread of fire, the threat of flood, etc. The attacking animal, belonging to another may be killed by the victim; a house in the path of a fire may be demolished; and a dike may be destroyed at one point to prevent a flood over other  places. The law permits the injury or destruction of things belonging to other provided this is necessary to avert a greater  danger.

turns out to be poison, he can lawfully drink any antidote he may find in the store, even without the consent of the owner. Basis of liability: The obligation to indemnity does not depend upon imputability. The basis of the liability is the benefit derived. Conflict of rights: The right of self-help under Article 429 is not available against an act in a state of necessity. Concept of just compensation Just compensation: compensation: The fair and full equivalent for the loss sustained (Mla. (Mla. Railroad vs. Velasquez, 32 Phil 286 ). ). The market value of the condemned property plus consequential damages less consequential benefits (Manila (Manila Railroad vs. Fabie, 17 Phil. 208 ); ); See also EPZA vs. Dulay, 149 SCRA 305 . QUESTION: May real property be subjected to an easement of  right of way w ay through expropriation?  A: In Republic vs. PLDT, 26 SCRA 620 , the SC ruled that normally, expropriation deals with a transfer of title or ownership; there is nothing wrong, therefore, in imposing a burden less than the transfer of ownership. ownership. It is unquestionable that real property may through expropriation be subjected to an easement of right of way. QUESTION: In the event that the purpose of the expropriation is abandoned or withdrawn, is the previous owner entitled to reacquire the property?  A: In Fery vs. Municipality of Cabanatuan, 42 Phil 28 , the SC ruled that if the decree decree granted full ownership to the petitioner, the latter remains latter remains the owner  regardless   regardless of the disappearance or  cessation of the public need for the property. If the grant of  ownership or title is subject to the condition that it will revert to the owner when the purpose of the expropriation is terminated or  abandoned, the original owner of the property would reacquire the property. FORMULA: Market value + consequential damages consequential benefits. [MRR [MRR vs. Velasquez, 32 Phil 286 ] Illustration:  PhP 10,000,000.00

–

market value of land

Requisites: 1. 2. 3. 4.

Exi Existe stence nce of an an ev evilil soug sought ht ttoo be avoi avoided ded;; The iinjury njury feare fearedd is grea greater ter than than that that done done to to avoid avoid it; it; Tha Thatt there there be no oth other er practic practical al and less less harmf harmful ul means of preventing it; The me means ans eempl mploy oyed ed is necess necessary ary and and indisp indispens ensabl ablee to avert danger.

Effect of mistake: mistake: The right to act in a state of necessity depends upon the objective existence of the danger with the requisites provided by law. If through If  through error , one believed himself  to be in a state of necessity, or  used means in excess of the requirements,, his act would be illicit and the owner of the requirements property used against him the defensive force authorized in Art. 429. Effect of negligence: The law does not require that the person acting in a state of necessity be free from negligence in the creation of such situation. Thus, if a person picks up an unknown object in a drug store and eats it, thinking it to be candy, and it

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 + 2,00 2,000, 0,00 0000.00 .00  PhP 12,000,000.00 1,000,000.00

PhP

11,000,000.00

co cons nseq eque uent iall dama damage gess as when when a building isntia demolished consequential benefits as when market value of his separate adjacent property increased amount of just compensation

RIGHT OF ACCESSION Art Art 440. 440. The The ow owne ners rshi hip p of prop proper erty ty give givess th thee righ rightt by accession to everything which is produced thereby, or  which is incorporated or attached thereto, either naturally or  artificially. Accession, mean meaning ing of: of: The riright ght of a prope property rty oowner wner to everything which is produced thereby or which is incorporated or  attached attach ed there thereto. to. “To the owner of the principal belongs the accessory .” .”

 

 8 Page  8  of  8

ACCESSION DISCRETA (Produced)

CONTINUA (Incorporated)

NATURAL

INDUSTR’L

CIVIL

Spontaneous products of the soil; The young and other products of animals

Those produced by lands of any kind thru cultivation or  labor 

Rents of  buildings; Price of  leases;  Amount of  of  perpetual or  life annuities.

REAL INDT’L

PERSONAL

NATURAL

Spec

 Alluvium  Avulsion

Engraftment; attachment;

Confusion (liquid); Commixtion

Sowing

Change of  course of  rivers formation of  islands

weaving painting; writing

(solids)

Instances when the owner of land does not own the fruits: §

Possessor in good faith of the land . (He owns the the fruits already received.) (see (see : Art 544 544,, par 1)

§

Usufruct . The usufructuary owns the fruits. (see Art 566)

§

Lease. The lessee gets the fruits of the land. (Of course, the Lease. owner gets the civil fruits in the form of rentals.) See Art. 1654 In antichresis antichresis,, the antichretic creditor gets the fruits, although said fruits should be applied first first to the interest, interest, if  any is owing; and then to the principal amount of the loan. (see : Art. 2132)

RIGHT OF ACCESSION WITH RESPECT TO IMMOVABLE PROPERTY GEN. RULE: RULE: Art. 445. Whatever is built, built, planted or sown sown on the land of  another and the improvements or repairs made thereon, belongs to the owner of the land. To the owner of the principal (land for example) example) must belong also the accessions – in accordance with the principle that the “accessoryy follows the principal.” “accessor NOTE: This article deals with accession continua more specifically accession industrial – BUILDING, PLANTING, SOWING. Exception: Art. 120 of the Family Code: A Code:  A building constructed on the land owned by one of the spouses at the expense of the conjugal partnership will belong to the partnership or to the spouse who owns the land depending on which of the two properties has a higher value. If the land is more valuable than valuable than the building, the building shall be owned by the owner of the land. If the building is more valuable than the land , the entire property shall belong to the conjugal partnership. In both cases, there is right of reimbursement at the time of liquidation of the conjugal partnership.

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Mix

Building Planting

RIGHTS OF THE LANDOWNER

REMINDER:

§

Adjun

Art. 447. The owner of the land who makes thereon personally or thru another, plantings, 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 ma materials terials shall shall have the right to remove them only in case he can do so without injury to the work constructed, or without the plantings, if constructions or works beingthedestroyed. However, the landowner acted in bad faith, owner of  the materials may remove them in any event, with a right to be indemnified for damages. LANDOWNER Good Faith Rig Right ht to appr appropr opriate iate he materials but he must pay its value; or return the materials provided they are not transformed at the expense of  the landowner 

Bad Faith 1. Liable to pa payy the value of the materials plus damages; 2. Owner of the materiaals ls may remove them whether there is injury or none, plus damages.

The owner of the materials may remove them provided that there is no injury to the work constructed.

Note: There is no provision of law which applies to a situation where the landowner is in good faith while the owner of the material is in bad faith. However, it would seem that the landowner would not only be exempted from reimbursement, but would also be entitled to consequential damages (as when for instance, the materials are of inferior quality). quality). Moreover, the oowner wner of the materials would lose all rights to them, such as the right of removal, regardless of  whether substantial injury would be caused. REMINDERS: §

Under Art. 447. 447. The landowner hi himself mself (as distinguished from Art. 448) makes the PLANTINGS, CONSTRUCTIONS OR WORKS on his land, BUT with the materials of another  person.

 

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§

In such a situation, a NEW THING is produced (i.e. something that is built or constructed on a land by the landowner with the materials of another), but does not result in co-ownership. co-ownership. The owner therefore of the ma materials terials does not become part owner of the the new thing. He is only entitled entitled to recover their value.

§

In short, the law gives the LANDOWNER, who acted in good faith, the right to APPROPRIATE the new thing provided that he INDEMNIFIES the owner of the materials.

QUESTION: What if the landowner offers to dismantle the new thing and return the materials thereof to its owner?  A: Strictly speaking, the law does not grant this option. What the law provides is the right (of the landowner) to pay for the value of  the materials. However, when the materials can be removed without causing injury thereof (i.e. statues, ornaments or other of  like nature), or when the materials had not been t ransformed, the landowner may return them at his expense to the owner of the materials. QUESTION: What if the new thi thing ng is dis dismantled, mantled, is the right of  the owner of the materials revived?  A: It would seem that the law attributes ownership to the landowner by giving them the option to pay for their t heir value, hence, the right of the owner of the materials is not revived. However, the better rule should be that as long as there is no injury to the work constructed or to the planting, the same may be recovered by the owner thereof. REMINDERS: §

§

In case of alienation by the landowner, the owner of the materials may go against the new owner, because he is the one benefited by the accessio accession. n. (Pacific Farms vs Esguerra 30 SCRA 684) Bad Faith; Good Faith, meaning of – (Cf. Arts. 453 and 526). The builder, plan planter ter or sower is in bad faith ifif he makes use of the land or materials which he knows belong to another.

claimed by two or more parties, one of whom has built some works, one one sown or planted ssomething. omething. It does not apply to a case where the owner of the land is the builder, sower or planter  who then later loses ownership of the land by sale or donation. Nevertheless, the provision therein with respect to t o indemnity may be applied by analogy considering that the primary intent of Art. 448 is to avoid a state of forced co-ownership.   In PNB vs. de Jesus, 557 SCRA 411, 411, the SC held that Art 448 refers to a piece of land whose ownership is claimed by two or more parties, one of whom has built some works (or sown or  planted something) and, not to a case where the owner of the land is the builder or sower or planter who then later loses ownership of the land by sale or otherwise for “where the true owner himself is the builder of works on his own land, the issue of good faint or bad faith is entirely irrelev irrelevant.” ant.” Who is en enti title tled d to po poss sses essi sion on of th thee bu buil ildin ding g if th thee landowner opts to appropriate the building?   In Pecson Pecson [supra],  [supra], the SC further held: Since the landowner  opted to appropriate the apartment building, the owner of the building is thus entitled to the possession and enjoyment of the apartment building, until he is paid the proper indemnity, as well as of the portion of the lot where the building was constructed.  

This is so, because the right to retain  retain  the improvements

while the corresponding indemnity is notit is paid implies theortenancy or possession in fact of the land which built, planted sown. The petitioner not having been so paid, he was entitled to retain ownership of the building, and, necessarily, the income therefrom. [Cf: Mendoza vs. de Guzman, 54 SCRA 164] 164] What is the basis of reimbursement, cost of the building or  the market value of the building?   Again, in Pecson Pecson   [supra], it was held that the objective of   Art. 546 of the Civil Code is to adminis administer ter justice between the parties involved in such a way as neither one nor the other may enrich himself himself of tha thatt which ddoes oes not bel belong ong to hhim. im. It is therefore the current market value  value  of the improvement which should be made the basis of reimbursement.

Art. 448. The owner of the land on which anything has been

 

built, sown built, sown or planted planted in good good fai faith th,, shall shall have the right to appropriate as his own the works, sowing or planting, after  payment of the indemnity provided for in Article 546 and 548 or to oblige the one who built or planted to pay the price of  the land, and one o ne who sowed, the proper rent.

respondents who would otherwise be allowed to acquire a highly valued income-yielding four-unit apartment building for a measly amount.

However, the builder or planter cannot be obliged to buy the land if its value is considerably considerably more than that of  the building or trees. In such case, he shall shall pay reasonable rent if the owner of the land does not chose to appropriate the building or trees trees after indemnity. The parties shall agr agree ee upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof . Note: This article applies only if the builder, planter or sower is in Note: good faith. (See also Arts. 454 and 447.)  Applicability of Art. 448:   In Pecson vs. Court Of Appeals, 244 SCRA 407 , it was was held that Article 448 app applies lies only to a land whose ownership ownership is

Marianne Macayra

A contrary ruling would unjustly enrich the private

QUESTION: May a lessee or a tenant who introduced improvements on a rented land recover for their value under Art. 448?  A: In Balucanag vs. Francisco, 122 SCRA 498 , in relation to Rivera vs. Trinidad, 48 Phil 396 , the SC ruled: “Art 448 does not apply to a lessee because as such lessee he knows that he is not the owner of the leased premises. Neither can he deny the ownership or title of his lessor. A lessee who introduces improvements in the leased premises, does so at his own risk in the sense that he cannot recover their value from the lessor, much less retain the premises until such reimbursemen reimbursement.” t.”   Also, in Chua vs. Court of Appeals, 301 SCRA 358 , it was held that: “…the fact that petitioners made repairs on the premises is not a reason to retain the possession of the

 

 10 Page  10  of  10

premises. There is no provision of law which grants the lessee a right of retention over the leased premises on that ground.”   “Art. 448 of the Civil Code, in relation to Art. 546, which provides for full reimbursement of useful improvements and retention of the premises until reimbursement is made, applies only to a possessor in good faith, i.e. one who builds on a land in the belief that he is the owner thereof. This right is not applicable to a mere lessee, otherwise, it would always be in his power to “improve” his landlord out of the latter’s property.” What if both the landowner and the builder are in good faith, who shall prevail? prevail?

1.

Note: Ownership over the thing built, sown or planted does not Note: pass to the landowner until after payment therefore has been given. In the meantime, the bui builder, lder, planter or sower (who is in good faith) has the right of retention (see: Martinez vs. Baganus, 28 Phil 500 ); ); 2.

  In a sense, it is the landowner, since the law grants upon him the right either to appropriate or compulsory sale. In both cases however, the builder is also protected. OTHER REMEDIES:   In Filipinas Colleges vs. Timbang, 106 Phil 247 , th thee SC held that the land and imp improvements rovements may be be sol soldd at public public auction, applying the proceeds thereof to the payment of the value of the land and the excess, excess, if any, ttoo be delivered to the owner of the improvements improvements in payment thereof.   In Miranda vs. Fadullon, 97 Phil 801, 801, it was held that the parties may decide to leave things as the theyy are and assume the relation of lessor or lessee; lessee; and should they disagree as to the amount of the rental, they can go to court for the fixing of that amount. NOTE: Forced lease is also created when the landowner opts for  NOTE: f or  compulsory sale [value of land is not immoderate] and the builder  failed to pay. Can the landowner refuse to exercise both options and insists on removal?   In Ignacio vs. Hilario, 76 Phil 605 , it was held that the landowner cannot both both refuse to pay for the building and and to sell the land to the builder, and compel the latter to remove the building. He is entitled to seek the removal of the building only if  after having chosen to sell the land, the builder failed to pay for  the same. Is the landowner entitled to rentals from the builder during the period of retention?   In Grana vs. CA, 109 Phil 260 , the SC ruled that during the time that the builder is retaining possession of the land, he cannot be required to pay rentals. Otherwise, the right of  retention will be rendered nugatory. What is the nature of the right of retention?   The right of retention is security for the payment of  improvements. [Miranda [Miranda vs. Fadullon, 97 Phil 801]. 801]. If the building is gutted by fire, the basis for right of retention is extinguished. [Manotok [Manotok vs. Tecson, 164 SCRA 587 ]].. RULES TO REMEMBE REMEMBER: R: IF LANDOWNER IS IN GOOD FAITH He has two options: options: (It is the landowner who has the option is not the builder, planter or sower.)

Marianne Macayra

To ap appro propri priate ate for hhims imself elf aanyt nything hing that that has bbeen een bbuil uilt, t, planted or sown upon the proper payment of indemnity; (RIGHT OF A APPROPRIATION) PPROPRIATION) cf: Ignao vs. IAC 1-  18-91

To ccompel ompel the build builder er to buy the lland and un unless less the value value of the land be considerably more than the value of what has been built, planted or ssown; own; (RIGHT TO COMPULSORY SELLING). In this sit situation, uation, there is no right of retention because the planter, builder or  sower is the one required to pay. (see: Bernardo vs. Bataclan, 66 Phil 59 598  8 )

Generally, the landowner has no RIGHT OF REMOVAL, except after having selected a compulsory sale, the builder, planter or sower fails to pay for the land (see: Ignacio vs. Hilario, 76 Phil 605 ). ). Note: Once a choice iiss made by the land Note: landowner, owner, it is gene generally rally irrevocable. Thus, if the landowner has elec elected ted to get the building, but is finally unable to pay for the indemnity or value of  the building, she cannot ca97 nnot afterwards elect to sell the land. (See: Tayag vs. Yuseco, Phil 712 ) IF THE BUILDER, PLANTER IS IN BAD FAITH (Landowner FAITH  (Landowner in good faith): (See: Arts. 449, 450 and 451 451)) 1.

2. 3.

4.

He lo loses ses what is bbuilt uilt,, pla planted nted or ssown own withou withoutt rig right ht to indemnity (except necessary expenses for the preservation of the land), se see: e: Art 452; He may be requi required red to dem demolis olishh or remo remove ve what what is is bu built ilt or planted or sown; The bbuilde uilderr may be comp compelle elledd to pay pay the pprice rice of the the land (whether or not the value of the land is considerably higher than the value of the house) and the sower proper rent; He iiss liab liable le to ppay ay dama damage gess.

QUESTION: If Davao City is invaded and occupied by an enemy QUESTION: country and an airstrip is constructed on a private land, who shall own the airstrip after the war, assuming the enemy is defeated?  A: In Republic vs. Lara, 96 Phil 170 , it was held that the airfield belongs to the Republic of the Philippines and not to the owner of  the land. The Japanese Army cannot be considered a possessor  in bad faith so as to make the airfield the property of the landowner by industrial accession. International law allows the temporary use by the enemy occupant of private lands and buildings for all kinds of purposes demanded by the necessities of war.

ALLUVIUM Art. 457. To the owner ownerss of lands adjoining the banks of  rivers belong the accretion which they gradually receive from the effects of the current of the waters. (See: Republic vs. CA, 132 SCRA 514) 514)

 

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NOTE:: This article applies also to creeks, streams, lakes NOTE (although the soil deposited may not be called alluvium.) alluvium.)

QUESTION:: Is there a need for the riparian owner of making a QUESTION formal claim of possession?

 Forms of accession natural:

 A: In  Agne vs. Director, 181 SCRA 793 793,, it was held that the riparian owner may not necessarily make an express act of  possession, it being that the accretion is automatic, the moment the soil deposit appears.

a. b. c. d.

Alluvium; Avulsion; Ch Chan ange ge of cour course se of rive rivers rs;; Form Format atio ionn of is isla land ndss.

Alluvium is the soil deposited or added to (accretion) the lands Alluvium is adjoining the banks of rivers and gradually received as an effect of the current of the waters. By law, the accretion accretion is owned by the owner of the estate fronting the river bank (riparian owner). Accretion is the process whereby soil is deposited; alluvium is Accretion is the soil deposited on river banks. Essential requisites of alluvium: 1.

The deposit deposit sh shoul ouldd be gradual gradual and and imper impercept ceptible ible as a process (natural); Current must be that of a river; does not apply to accretion by man-made means (see: Republic vs. CA, 132 SCRA 154); 154 );

2.

2. Cu Current rrent must be that that of of a rive rive (if (if la lake, ke, the depos depositit may not be called alluvium alluvium but the principle is the same, see : Art. 84 Spanish Law Law on Waters);

3.

4.

The rriver iver must ccont ontinue inue to exist exist (oth (otherwis erwise, e, if the river  river  disappears, Art. 58 PD 1067, 1067, in re: Art. 461 NCC, shall apply); The in incre crease ase mus mustt be compar comparat ative ively ly litt little. le.

QUESTION: What is the nature of an alluvion and how is it QUESTION: acquired?  A: In Ferrer vs. Bautista, 231 SCRA 257 , it was held h eld that: Article 457 of the Civil Code, under which petitioner claims ownership over the disputed parcel of land, provides: “Art. 457. To the owners of land adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of  waters.” Undoubtedly, plaintiff is the lawful owner of the accretion, she being the registered owner of Lot Not. 1980 which adjoins the alluvial property.   Alluvion gives to the owners of land adjoining the banks of  Alluvion gives rivers or streams any accretion which is gradually received from the effects of the current of water. The rationale for the rule is to provide some kind of compensation to owners of land continually exposed to the destructive force of water and subjected to various easements. QUESTION: Does the Director of Land have jurisdiction to grant QUESTION: title over alluvial claims by third party who is not the riparian owner?  A: In Ferrer vs. Bautista [supra], Bautista [supra], the Director of Lands has no authority to grant a free patent over the land that has passed to private ownership and which has thereby ceased to be public land. Any title thus issued or conveyed by him would be null and void. Private respondents, therefore, acquired no right or title over by itvirtue of the free patent sinceand at the time itthe wasdisputed issued inland 1966, was already private property not part of the disposable land of the public domain.

Marianne Macayra

However, in Grande vs. CA, 6-30-62 , it was held that an alluvial deposit does not automatically become registered land simply because the lot which receives it is covered by a Torrens Title.  Although the owner of the land on which the alluvial deposit is made becomes automatically the owner of the alluvial deposit, the law not requiring any act of possession on his part from the moment the deposit becomes manifest. Still ownership of a piece of land is one thing and registration under the Torrens System System is another. In order that the alluvial deposit may be entitled to the protection of imprescriptibility, the same must be placed under the operation of the Land Registration Law. An unregistered alluvial proper property ty is therefore subject to acquisition through prescription by third person.

AVULSION Art. 459. Whenever the curre current nt of a river river,, creek or torr torrent ent segregates from an estate on its bank a known portion of  land and transfers it to another state, 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.  Avulsion  - the process whereby the current of a RIVER,  Avulsion  CREEK or TORRENT segregates from an estate on its bank a KNOWN PORTION of land and transfers it to another estate.  Avulsion implies a violent tearing or breaking away. It may also be referred to as “delayed accession” in the sense that if the owner abandons the soil involved, or fails to remove (not merely claim) the same within two years, the land to which it had been attached acquires ownership thereof. REMINDERS : § § §

Torrent means a violent, rushing or turbulent stream. The law does not make a distinction whether the portion segregated is big or small. If the detached portion is not attached to another’s land but simply is in the middle of the river, ownership still remains with the person whose land it had been detached. detached.

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. QUESTION: If the cause of the dama damage ge is due ttoo artificial means, is the riparian owner entitled to compensation?  A: In Baes vs. CA, CA, if the riparian owner is entitled to compensation for the damage to or loss of his property due to natural causes, there is all the more reason to compensate him when the change in the course of the river is effected through

 

 12 Page  12  of  12

artificial means. The loss to the petitioners of the land covered by the canal was the result of a deliberate act on the part of the government when it sought to improve the flow of the Tripa de Gallina creek. creek. It was therefore obligated obligated to compensate the Baeses for the loss.

QUIETING OF TITLE Art. 476. Whenever there is a cloud on title to real property

defective because because of the forgery. Alma’s remedy is aann action to quiet title. Question:: Does an action to quiet title pres Question prescribe? cribe?  A: It depends, if tthe he plaintiff is in possession of the property, the action does not prescribe. But if the plaintiff is not in possession of the property, the action may prescribe (see: Fernandez vs. Court of Appeals, 189 SCRA 780 ; Mamadsual vs. Moson, 140  SCRA 83) 83)

What is an action for quieting of title?

 ruledInthat Pingol vs. Court Of Appeals, 226was SCRA 118 , the the SC although the plaintiff’s complaint denominated as one for specific performance, it is in effect an action to quiet title. Prescription thus cannot be invoked against the private respondents for  it is aphoristic aphoristic that an action to quiet tit title le to  property in one’s possession is imprescriptible. imprescriptible. The ra rationale tionale for  this rule has been aptly aptly state thu thus: s: “The owner of real proper property ty who is in possession thereof may wait until his possession is invaded or his title is attacked before taking steps to vindicate his right. A person claiming title to real prope property, rty, but not in possession thereof, must act affirmatively and within the time provided by the statute.

  In Robles vs. CA, 328 SCRA 97 , the SC said: An action for  quieting of title is a common law remedy for the removal of any cloud or doubt or uncertainty on the title to the real property. It is

  Possession Possession is a continuing right as in the right to defend such possession. So it has been determined that an owner of  real property in possession has a continuing menace to his title.

essential for the plaintiff or complainant to have a legal or an equitable title to or interest in the real property which is the subject matter of the action. Also, the deed, claim, encumbrance or proceeding that is being alleged as a cloud on plaintiff’s title must be shown to be in fact invalid or inoperative despite its prima facie appearance of validity of legal efficacy. efficacy.

Such menace is compared to a continuing nuisance or trespass, not barred by statute until continued without interruption for a length of time sufficient to affect a change of title as a matter of  law. (see aalso: lso: Sapto vs Fabia Fabiano, no, 103 Phil 683 683;; Buct Bucton on vs Gabar, 55 SCRA 499; Dignos vs CA, 158 SCRA 375; Coronel vs IAC, 155 SCRA 270; Solid State vs CA, 196 SCRA 630)

or any encumbrance, interest therein, by reason ofwhich any instrument, record, claim, or proceeding is apparently valid or effective but 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 cloud or to qu quiet iet the titl title. e. An acti action on may als also o broug brought ht to prev preven entt a cloud from being cast upon title to real property or any interest therein. Note: Please observe Note: observe that when the instrument instrument is not valid on its face, the remedy does not apply.

What must be proven in an action to quiet title? CO-OWNERSHIP

  In Secuya vs. Vda. De Selma, 329 SCRA 244, 244, it was held that in an action to quiet title, the plaintiffs or complainants must demonstrate a legal or an equitable title to, or an interest in, the subject real property. Likewise, they must show that the deed, claim, encumbrance or proceeding that purportedly casts a cloud on their title is in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy.

Note:: Under this article Note article,, co-ownership may exist as to rights, rights, and

Requisites:

is notOG limite limited d to) corporea corporeall things. (see: Samaniego vs. Villajin C.A OG 3137 

1. 2. 3.

Exis Existence tence of an instr instrumen umentt (deed (deed or or contrac contract) t) oorr record record or claim or encumbrance or proceeding; The iinstru nstrument ment or procee proceeding ding is apparently apparently valid valid or  or  effective, and prejudicial to the title; In tru truth th and in fa fact, ct, inval invalid, id, ineffec ineffective tive,, voidable voidable or  unenforceable, or extinguished. extinguished.

Test : Would the owner of the property in an action at law brought by the adverse party and founded upon the instrument or claim, be required to offer evidence to defeat a recovery? recovery? If proof would be essential, the cloud exists; if proof is not needed, no cloud is cast. Example: Alma’s land was sold by Roger (a forger) to Example: t o B, a buyer  in good faith. Alma’s name had been forged by Roger Roger in the deed of sale. The sale on its face is apparently valid, valid, with Alma’s name indicated as the seller. seller. In truth, however, the sale is

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Art. 484. There is co-owners co-ownership hip whenever the ownership of  an undivided thing or right belongs to different persons. In default of contracts, or of special provisions, coownership shall be governed by the provisions of this title.

  In Javier vs. Javier, 5 Phil 78 , when a house is owned by one person, and the lot by another, there is no co-ownership created over the properties. Characteristics: (Co-ownership may also be referred to as Characteristics: Tenancy in common) 1. 2. 3.

Plur Plural alitityy of su subj bjec ects ts;; Sin Singul gulari arity ty or unity unity of object object;; Re Reco cogn gnititio ionn of idea ideall sh shar ares es..

  In de Guia vs. CA, 413 SCRA 114, 114, the SC held that there is no co-ownership when the different portions owned by different people are already concretely determined and separately identifiable even if not yet technically described.

 

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use the house and lot without paying any compensation to the petitioner, as he may use the property owned in common so long as it is in accordance with the purpose for  which it is intended and in a manner not injurious to the interest of the other co-owners.

Rules regarding ideal share: § §

Each co-owner has full ownership of his part, and of his share in the fruits and benefits (Art. 493); He may alienate, alienate, assign or mort mortgage gage his ideal ideal share. (Art. 493);

  Each co-owner of property held pro indiviso exercises his rights over the whole property and may use and enjoy the same with no other limitation than that he shall not injure the interest of his co-owners, the reason being that until a division is made, the respective share of each cannot be determined and every co-owner exercises, together with his co-participants joint-ownership over the pro indiviso property, in addition to his use and enjoyment of the same.

What governs co-ownership? a. b.

Co Cont ntra ract cts; s; in in defa defaul ultt ther thereo eof: f: Sp Spec ecia iall le lega gall pro provi visi sion ons; s;

c. Th Thee law law on co co-o -own wner ersh ship ip.. Sources of co-ownership co-ownership: ¬

¬

¬

¬

¬

LAW   - party walls; party ditches; intestate succession; LAW properties acquired by a man and a woman whose marriage is void; CONTRACT CONTRACT  - two persons buy a parcel of land sharing in the purchase price and agree not to divide the land for ten years; commixtion,, confusion, hidden treasure; CHANCE - - commixtion CHANCE WILL   - when two persons are named as legatees or  WILL devisees of an undivided thing; OCCUPATION   - Punzalan vs. Boon Liat, 44 Phil 320 , OCCUPATION when a wild beast is caught by several persons.

Rules the485): shares of co-owners in the benefits and chargeson(Art. a.

The sshare hare in the the benefits benefits and charge chargess is propo proportion rtional al to the interest of each. Hence, if one co-owner owns 2/3, he shares 2/3 of the taxes;

b.

Contra Contrary ry stipulatio stipulationn iiss V VOID. OID. To do do ssoo would would be to run against the nature of co-ownership;

c.

Eac Eachh co-owne co-ownerr shar shares es propo proporti rtiona onatel telyy in the accre accretio tionn or alluvium alluvium of the prope property. rty. This is is because because an increase in area benefits all.

LIMITATIONS on co-owner’s right to use the thing owned in common (Art. 486): a.

b.

The right to use must not prejudice the interest of the co-ownership;; co-ownership   A co-owner cannot devote communi community ty property to his exclusive use use to the prejudice prejudice of the co-ow co-ownership. nership. Thus, where the co-owners have agreed to lease l ease a building owned in common, a co-owner cannot retain it for his use without paying the proper rent.

c.

The right to use must not be exercised to prevent the others from making use thereof according to their own right.. right   The right of enjoymen enjoymentt by each co-owner is limited by a similar right of others. Hence, if the thing is a dwelling house, all the co-owners may live therein with their  respective families, to the extent possible. But if one coowner alone occupies the entire house without opposition of  the others, and there is no agreement to lease it, the other  co-owners cannot demand the payment of rents.   They can either exercise an equal right to live in the house, or agree to lease it; if they fail to do so, they must bear the consequences. consequences. It would be un unjust just to require the co-owner to pay rents after the other co-owners by their  silence have allowed him to use the property.

Can be used only according to the purpose for which it was intended; intended;   To determine the purpose for which the property is intended, the agreement of the co-owners (express or  implied) should govern. In default of any agreement: (1) that to which the thing is ordinarily adapted according to its nature or; (2) the use to which it has been previously devoted.   Thus, if the co-owners of a vessel agree that it shall be used as a warehouse or storage place for grain, one of the co-owners cannot order the grain removed and use the vessel for maritime transportation. transportation. Mere tolerance on the part of the co-owners cannot legalize the change in the use of the thing from that intended by the co-owners. Prescription cannot be invoked to establish a right to such different use, because mere tolerance cannot be the basis of prescription.   In  Aguilar vs. Court of Appeals, 227 SCRA 472 , it was held that being a co-owner respondent has the right to

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Art. others, 491. None of alterations the co-owners sshall hall without theinconsent of  the make in the thing owned common, even though benefits for all would result therefrom. However, if the withholding of the consent by one or more of  the co-owners is clearly prejudicial to the common interest, the courts may afford adequate relief. Alteration is a change: which (a) is more or less permanent; (b) changes the use of the thing; and (c) prejudices the condition of  the thing or its enjoyment by the others.   It is also a change (not limited to physical) ooff state of the thing or the withdrawal of the use from that intended. Example: sale; donation; or mortgage ooff the property.   In determining alterations, it is sometimes necessary to consider the nature of the thing thing itself. Thus, when a th thing ing does not require any modification for its enjoyment, whatever  modifications or change that is made will be considered an alteration. But when a thing in its nature requires changes, such

 

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an industry or business, business, in its exploitation exploitation,, such modifications and variations should be considered as falling under acts of  administration.

a.

of th thee ex exis istenc tencee of an AG AGREE REEMEN MENT T betwee betweenn the the parties •

REMINDERS: §

 Article 491 requires unanimity of consent, whether tacit or  express.

§

Effect of tacit consent consent - although the co-owner who is deemed to have tacitly consented to the alteration cannot

•

If more than 10 years, voi voidd as to the exces excess; s;

•

If prohibition is perpetual, valid only up to 10 years;

•

ask for the demolition, can he be held liable to answer for any part ofneither the expenses incurred therein, because the obligation to pay such expenses cannot be deemed to be the subject of his tacit consent.   In PNB vs. CA, 98 SCRA 207  in  in rel. to Castro vs. Atienza, 53 SCRA 264, 264, the SC said that the alienation of a common property by a co-owner without the unanimous consent of all the co-owners is void not because the nature of the thing had been changed or altered, but because of the lack of unanimous consent required by law – as acts of alienation such as sale, donation, mortgage, lease for more than one year, etc. are acts of ownership which could be exercised only by all. The transaction is valid only with respect to the share of the co-owner  alienating. What are the rights of a co-owner with regard to his ideal share?   In Go Ong vs. CA, 154 SCRA 270 , it was held that under  the provisions of Art. 493, the heirs as co-owners shall each have the full ownership of his part and the fruits fruit s and benefits pertaining to it. An heir 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 alienation or  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. [see also: PNB vs vs.. CA, 98  SCRA 207 ]   In Lopez vs. Ilustre, 5 Phil 576 , it was held that what a coowner may dispose of is only his undivided share, which shall be limited to the portion which may be allotted to him upon the termination of the co-ownership. He has no right to divide the property into parts and then convey one part by metes and bounds. Art. 494. General Rule: 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. Reasons: a. b. c.

To aavo void id con confli flicts cts in manage managemen ment; t; The law dis discou courag rages es coco-own owners ership hip;; The ddisp ispos ositi ition on or eenjo njoyme yment nt of the the thing thing owne ownedd in common is subject to the desire of all co-owners.

Exceptions: When there exists a PROHIBITION, because:

Marianne Macayra

not more than 10 years, extendible by a new agreement after the termination of the original period; hence, no automatic renewal, otherwise, the intention of the law would be defeated.

If agreement is subject to a resolutory condition, the agreement ends upon fulfillment of the condition provided it does not exceed 10 years.

b.

the LAW does not allo allow w parti partition; tion; (con (conjuga jugall partne partnershi rshipp as a general rule);

c.

of the WIL WILLL of the don donor or or ttest estat ator; or; (t (the he pr prohi ohibit bition ion may be up to 20 years);

d.

the lega legall NAT NATURE URE of of the proper property ty ddoes oes not aallo llow w partition (i.e. automobile, partition shall proceed in accordance with the rules set forth under Art. 498).

Note:: As a general rule, Note rule, prescription against a co-owner does not lie.  

In Aguilar In  Aguilar vs. CA, 227 SCRA 472 , in rel. to Salvador vs.

CA, 243 SCRA 239, ofthea property 239, SC heldin that: Partition means the segregation or division common to those to whom it belongs in parts. A co-owner has the right to demand at anytime the partition or segregation of his share in the thing owned in common. The right to demand partition does not prescribe as long as the co-ownership is recognized.   In order that the title may prescribe in favor of a co-owner, the following requisites must concur : (Robles vs. Court of   Appeals, 328 SCRA 97 ) 1.

2. 3.

The cco-o o-owne wnerr has pper erfor formed med uuneq nequiv uivoca ocall act actss of  repudiation amounting to an ouster of the other coowners; Suc Suchh posit positive ive aacts cts of repudi repudiati ation on ha have ve be been en mad madee known to the other co-owners; The ev evide idence nce tther hereof eof iiss cle clear ar and and con convi vinci ncing. ng.

  In Robles vs. CA, CA, the SC ruled that: Hilario did not have possession of the subject property; neither did he exclude petitioners from the use and enjoyment thereof, as they have indisputably shared in its fruits. Likewise, his act of entering into the mortgage contract with the bank cannot be construed to be a repudiation of the co-ownership. As an absolute owner of his undivided interest in the land, he had the right to alienate his share, as he in fact did. Neither N either should his payment of land taxes in his name, as agreed upon by the co-owners, be construed as repudiation of the co-ownership. The assertion that the declaration of the co-ownership was tantamount to repudiation was belied by the continued occupation and possession of the disputed property by the petitioners as owners. Exception:: Exception a.

Whe Whenn a coco-own owner er giv gives es no notic ticee to th thee oth other er co co-ow -owner nerss that he is repudiating the co-ownership and that he is claiming ownership of the entire property;

 

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b.

The requi requiremen rementt of cont continuo inuous, us, open, public public,, ad advers versee possession for the period of time required must be met;

2.

Example: Contract of lease; Usufruct; Possession by: tenant; depository; bailee; or lessee. All these have  juridical titles titles but they are not tthe he owners.

Note:: Note   Acts which may be considered adverse insofar as strangers are concerned may not be considered adverse insofar as coowner is concerned. concerned. In other words, it is harder harder for a co-owner  acquire properties of strangers. Hence, mere actual possession by one co-owner will not give rise to the inference that the possession possessi on was adverse. This is because a co co-owner -owner is after all entitled to possession of the property. There must indeed be a definite repudiation and the possession is to the exclusion of  other co-owners.   In Salvador vs. CA, 243 SCRA 239, 239 , it was held that a mere silent possession by a co-owner, his receipts of rents, fruits or  profits from the property, the erection of buildings and fences and the planting of trees thereon, and the payment of land taxes, cannot serve as proof of exclusive ownership, if it is not borne out by clear and convincing evidence that he exercised acts of  possession which unequivocably constituted an ouster or  deprivation of the rights of the other co-owners. Note: The period of prescription commences from the date of the Note: repudiation.

POSSESSION Art. Art. 523: 523: Pos osse sess ssio ion n is th thee ho hold ldiing of a thin ing g or th thee enjoyment of a right. What is the possession?

relationship

between

ownership

and

 As a general rule, rule, possession is an element of ownership. However, this is not absolute, there are circumstances whereby the owner of the thing does not possess the thing thing.. Essential Requisites of Possession: Possession: (Must concur) 1.

2. 3.

Holdi Holding, ng, maybe actual actual or const constructi ructive, ve, the body of  thing or the corpus. corpus. (There is occupancy, taking or  apprehension) Inte Intent nt to hold hold it, the ani animus mus or ddes esire ire.. The possessi possession on must must bbee by virtue virtue of one’s one’s oown wn right. right. Hence, an agent who holds is not truly t ruly in possession; possession; it is the principal who possesses th thru ru the agent.

Classes of possession: 1. 2. 3.

Poss Possessi ession on iiss on one’s e’s own name or poss possessi ession on in in the name of another; (see Art. 524) Poss Possessi ession on in the conc concept ept of of an owner owner or possessi possession on in the concept of a holder; (see Art. 525) Poss Possessi ession on in good faith or posse possessi ssion on in bad faith. (See Art. 526)

What are the Degrees of Possession? 1.

The me mere re holdi holding ng of a tthin hingg withou withoutt the title title,, or the holding of a thing in violation of the rights of the owner. Example: A thief possesses a thing without title and in violation of the right of the owner.

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Poss Possessi ession on with with jur juridica idicall title, title, bu butt not tthat hat of owne ownership rship..

3.

Poss Possessi ession on with with ju just st tititle tle not ssuffic ufficient ient to po posses ssesss ownership. (a.k.a. real possessory right.); Example: “A” in good faith buys an automobile from “B” who delivers the same to “A”, and who merely

4.

pretended to be the owner thereof. Poss Possess ession ion with with a ttitle itle of do dominiu minium. m. T This his is po posses ssession sion arising from ownership.

What are the concepts of possession? 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  of the thing or right…. a.

In the concept of an owner : It is the possession by the owner himself or by a person who CLAIMS CLAIMS   to be and ACTS and  ACTS as  as the owner, whether he is in good faith or  in bad faith. He possesse possessess the thing in such a way that he makes people believe or see that he is the owner  and recognizes no title or ownership in another.

Possession in the concept of owner vs. Torrens title:   In  Apostol vs. CA, 432 SCRA 351, 351, the SC ruled that the presumption of ownership granted by law to a possessor in the concept of an owner under Art 541 is only prima-facie and cannot prevail over a valid title registered under the Torrens System. It is an accepted rule that a person who has a torrens title over the property is entitled to the possession thereof.   In Occena vs. Esponilla, 431 SSCRA 116 , the SC ruled that the defense of indefeasibilit indefeasibilityy of Torrens title does not extend to a transferee who takes the certificate of title in bad faith with notice of a flaw. A buyer of real property in the possession of  persons other than the seller must be wary and should investigate the rights of those in possession otherwise he can hardly be regarded as buyer in good faith and cannot have any right over the property. Prior possession, not necessary in a suit for unlawful  detainer    In a case for unlawful detainer, as when the new owner of  the house ejects the tenant therefrom, is prior physical possession an indispensable requisite on the part of the new owner?   In Apostol In  Apostol vs. CA, 432 SCRA 351 351,, the SC ruled that “the fact that the respondents were never in prior physical possession of the subject land is of no moment, as prior physical possession is necessary only in forcible entry cases.” Distinction: Proof of possession in forcible entry and unlawful detainer    In Pajuyo vs. CA, 430 SCRA 492 , the SC held that: “Prior  possession is not always a condition sine qua non in ejectment. This is one of the distinctions between forcible entry and unlawful detainer. In forcible entry, the plaintiff is deprived of physical

 

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possession of his land or building by means of force, threat, strategy or stealth. Thus, he must allege and prove prior  possession. But in unlawful detainer, the defendant unlawfully withholds possession after the expiration or termination of his right to possess under any contract, express or implied. In such case, prior physical possession is not required. b.

In the concept of holder : Here, the recognizes another to be the owner.

Examples:

Tenant;

Usufructuary;

Depositary;

possessor  Bailee

in

commodatum. What is the nature of possession by a lessee?   In Maglucot-aw vs. Maglucot, 329 SCRA SCRA 78 , it was held that one who possesses as a mere holder acknowledges acknowledges in another a superior right which he believes to be ownership, whether his belief is right or wrong.   In Jose M. T. Garcia vs. Court of Appeals, et al., G.R. No. 113140, August 10, 1999, 1999, the SC held that possessor who is merely tolerated by owner is a possessor in the concept of holder  and such possession does not hinder a valid transfer of  ownership by the owner thru its sale to another.   In Servando Mangahas vs. Court of Appeals, G.R. No. 95815, March 10, 1999 1999,, it was ruled that there can be no acquisitive prescription of land in favor of the possessor if the possession is in the concept of holder .   In Sotera Paulino Marcelo, et al. vs. CA, G.R. No. 131803. April 14, 1999, 1999, the SC ruled: "Acquisitive prescription is a mode of acquiring ownership by a possessor through the requisite lapse lapse of time. In order to ripen into ownership, ownership, possession must be in the concept of an owner, public, peaceful and uninterrupted.   Thus, mere possession with a juridical title, such as, to exemplify, by a usufructuary, a trustee, a lessee, an agent for a pledgee, not being in the concept of an owner, cannot ripen into ownership by acquisitive prescription, unless the juridical relation is first expressly repudiated and such repudiation has been communicated to the other party.   Acts of possessory character executed due to license or by mere tolerance of the owner would likewise be inadequate. Possession, to constitute the foundation of a prescriptive right, must be en concepto de dueno, or, to use the common law equivalent of the term, that possession should be adverse; if not, such possessory acts, no matter how long, do not start the running of the period of prescription.”

POSSESSION IN GOOD FAITH AND POSSESSION IN BAD FAITH Art. 526. He is deemed a posse possessor ssor 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.  AWARENESS of of any FLAW is question of kno knowledge. wledge.

Marianne Macayra

ü

If he is not aware – aware  – GOOD GOOD FAITH. There is always a presumption that every possessor is a possessor in good faith. (see Art. 527)

ü

If he is aware aware –  – BAD FAITH. This is pur purely ely personal to the possessor. It may not necessarily be transmitted to the heir.

  In Sotera Paulino Marcelo, et. al. vs. CA, G.R. No. 131803, April 14, 1999, 1999, the SC ruled that transferee of an unregistered parcel of land for value from a buyer and who took immediate possession thereof has the benefit of good faith in faith in his favor. Ordinary acquisitive prescription of 10 years is applicable.   In Republic vs. CA, 102 SCRA 331, 331, it was held that a party’s mere refusal to believe that a defect exists and his willful closing of his eyes to the possibility possibility of the existence of a defect in his vendor’s title will not make him an innocent purchaser for  value if it afterwards develop that the title was in fact defective. Hence, if circumstances exist that require a prudent man to investigate; he will be in bad faith if he does not investigate. [See: Leung Lee vs. Strong, 37 Phil. 464 4 64]]   In Republic vs. De Guzman, 326 SCRA 267 , the SC ruled that the burden of proving the status of purchaser in good faith and for value lies upon him who asserts that status. In discharging the burden, it is not enough to invoke the ordinary presumption of good faith. “The rule is settled that a buyer of real property which is in possession of persons other than the seller  must be wary and should investigate the rights of who is in possession. Otherwise, without such inquiry, the buyer can hardly be regarded as buyer in good faith.”

ACQUISITION OF POSSESSION POSSESSION Art. 531. Possession is acqu acquired ired by the material occupation of a thin thing g or the exer exercis cisee of a right 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. Three ways of acquiring possession: 1.

Material occupation of the thing/exercise th ing/exercise of a right. right. ¬

2.

By the action of our will. will. (By agreement) ¬

3.

Holding, apprehension, arrest, occupancy. Occupation is used here in its ordinary sense which means holding of a thing which must be physical. (Also the exercise of a right.)

Here, there is no actual physical detention or seizure of the thing but the agreement between the parties constitutes the fact of possessio possession. n.

Proper acts and legal formalities established by law.. This is the legal formality which gives rise to law possession. ¬

These are certain documents that can ordinarily give rise to possession possession because of legal fict fiction. ion. The moment that document takes effect, automatically, the person in whose favor that documents is

 

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executed is deemed to have acquired possession of  that property.   In Medina vs. Greenfield Dev. Corp., Corp., the SC held that: “… the execution of the deeds of conveyance is already deemed equivalent to delivery of the property and prior physical possession possessi on is not required. Possession is also transferred, along with ownership ownership thereof, by virtue of the notarized notarized deeds of  conveyances. Under Art 1498 of the Civil Code, when the sale is made through a public instrument, the execution thereof shall be equivalent to delivery of the object of the contract. In donations, there is no need ooff delivery. The mome moment nt the donation is in the form provided by law, the donee is deemed to be in possession of the thing thing donated. donated. Ownership is automatically acquired by the donee. •

•

In wills, upon the death of the decedent if the will is valid, the heirs mentioned in the will are deemed automatically, automatically, by fiction of law to be in possession possession of the hereditary estate. estate. Actually and in truth, the heirs are not in actual possession but by fiction of law, the possessio possessionn by the decedent is deemed to be continued without without any interruption. interruption. Art. 533.

QUESTION:: Who is the preferred QUESTION possessor among claimants? Can tax receipts and declarations be the basis of  claim of ownership through prescription?  A: In Cequeña vs. Bolante, 330 SCRA 216 , it was held that petitioners did not lose legal possession because possession cannot be acquired through force or violence. For all intents and purposes, a possessor even if physically ousted is still deemed the legal possessor. Indeed, anyone who can prove prior  possession, regardless of its character, may recover such possession.   The respondent is the preferred possessor because, benefiting from her father’s tax declaration of the subject lot since 1926, she has been in possession thereof for a longer period. On the other hand, petitioner’s father acquired joint possession only in 1952.   Tax receipts and declarations of ownership, when coupled with proof of actual possession of the property, can be the basis of a claim for ownership through prescription. Respondent’s possession was not disturbed until 1953 when the petitioner’s father claimed the land. But by then, her possession, which was in the concept of an owner – public, peaceful and uninterrupted uninterrupted – had already ripened into ownership. Furthermore, she herself  after her father’s demise, declared and paid realty taxes for the disputed land.   Tax declarations declarat ions 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 taxes have been paid. In the absence of actual, public and adverse possession, the declaration of the for tax purposes does not prove ownership.  

The petitioners, despite 32 years of farming the subject

land, did not acquire ownership by mere occupation. Unless coupled with the element of hostility toward the true owner, occupation and use, however long, will not confer title by prescription or adverse possession.

Marianne Macayra

  In Republic vs. CA, 258 SCRA 712 , the SC ruled that although tax declarations or realty tax payments of property are not conclusive evidence of ownership, nevertheless, they are good indicia of possession in the concept of owner for no one in his right mind would be paying taxes for a property that is not in his actual or at least constructive possession.   They constitute at least proof that the holder has a claim of  title over the property. The voluntary declaration of a piece of  property and announces his adverse claim against the State and all otherrevenues interestedforparties, but also the intention contribute needed the government. Such an acttostrengthens one’s bona fide claim of acquisition of ownership. Who may acquire possession?   One who is in full possession of his civil capacity can  possession of a thing or a right through any of the three acquire possession acquire ways of acquiring possession as provided in Art. 531 (i.e.: [a] material occupation of the thing; [b] by the action of our will; [c] proper acts and legal formalities established by law.) or  may  acquire (under acquire  (under Art. 432): [a] through his representative; [b] by his agent; or [c] by any person without any power whatsoever  (negotiorum gestio) gestio) Note: The possession of a person without power cannot be Note: acquired without the ratification of the person in whose name the act of possession was executed. QUESTION:: May minors and incapacitated persons acquire QUESTION possession?  A: Minors and incapacitated persons may acquire possession in those matters where they have capacity to act like in the case of  physical seizure of res nullius or donation of personalty simultaneously delivered to them and not possession where  juridical acts are imperative like donations of realty where minors and incapacitated persons have no juridical capacity to execute. (see also: Art. 535.) QUESTION: What are the circumstances that cannot give rise to QUESTION: possession? 1.

Force, violence, intimidation. intimidation.

In Ayala In  Ayala de Roxas vs. Maglanso, 8 Phil 745  in  in rel. to Moreno vs. Goco, 26 Phil 496 , it was held that possession acquired by force or violence does not affect possession because such possession is not true possession respected by law. For all purposes favorable to the true owner or possessor, his possession is not considered interrupted. In Bis Bishop hop of Lipa Lipa vs. vs. Mun. of San San Jos Jose, e, 27 Phil Phil 571 571,, it was held that there is force or violence in the acq acquisition, uisition, even wh when en the property was not forcibly taken away from the owner, if the intruder occupied it during the absence of the owner and commits acts which repel the re return turn of the owner. 2.

Mere tolerance of the owner .

Concept  –  – Acts merely tolerated are those allowed by the owner  not by reason of duty or obligation but by the impulse of sense of  neighborliness or good familiarity with persons. In Municipality of Nueva Caceres vs. Director of Lands, 24 Phil 485  it  it was held that even assuming that these acts continue,

 

 18 Page  18  of  18

they do not affect possession. On the basis of these acts, no right will be acquired by prescripti prescription. on.

owner thereof. Anyone who claims to be the true owner must resort to judicial process for the t he recovery of the property.

In Estrella vs. Director of Lands, 106 Phil 911 in 911  in rel. to Yu vs. de Lara, 116 Phil 1106 , it was held that a person who occupied another’s property at the latter’s tolerance without any contract between them, is necessarily bound by an implied promise to vacate it upon demand, falling in which ejectment suit is proper  against him.

Note: The term “just little” refers to true and valid title – a title Note: which by itself is sufficient to transfer ownership without the necessity of letting the period elapse. (see: Diolente vs. Biarnessa, 7 Philippines 232)

3.

Clandestine acts or secret possession. possession . They cannot give rise to possession, for possession must be open. EFFECTS OF POSSESSION POSSESSION

Art. 539. The right to be: a. b.

Re Resp spec ected ted in hhis is ppos osse sess ssio ion; n; Pro Protec tected ted or rest restore oredd to said said posses possessi sion on by llega egall means in case of disturbance of another;

Reasons for the rule – To: a. b. c.

preve prevent nt a posi positive tive atte attempt mpt against public public order; order; avo avoid id ddis istur turban bances ces in tthe he commun community ity;; preve prevent nt depriv deprivation ation of pro propert pertyy without without due process process of  law; d. avo avoid id tak taking ing in into to his oown wn hands hands the the admin administ istrat ration ion of   justice.

Example: “B” brought a car from “S”, the owner thereof. Then “S” Example: delivered the car to “B”. “B” now has a valid and true title over the car. Thus, if “B” possesses and drives the car around as an owner, other people cannot compel him to prove ownership thereof. Note: For purposes of prescription, “just title” means colorable Note: title – that title where, although there was a mode of transferring ownership, still something is wrong, because the grantor is not the owner of the thing. Example: In the above example, if it turn out that “S” is not the Example: owner of the car and somebody else was its owner, “B” would not be considered as the owner thereof because he did not acquire it from the owner of the car, irrespective whether or not he is in good faith. However, for purposes of prescription, his possession is just considered as “just title” of the period required by law depending on whether he is in good faith or not. Of in good faith  – 4 years ( personal property); property); in bad faith - 8 years. Reasons for the presumption: 1. 2.

Remedies: 1.  Action for forcible entry  –  – the unlawful deprivation of  possession by means of force, intimidation, stealth, threat or strategy. Here, the dispossession arises from a situation or condition under which a person can wrongfully enter upon a real property and exclude another, who has had possession, therefro therefrom. m.

Requisites  in order that the principle “Possession is Requisites  presumed ownership” to apply: apply :

2.

Art. 544. A possessor in good faith is entitled to the fruits received before the possession is legally interrupted.

Unlawful Unlawf ul detai detainer ner action

3.  Accion publiciana – publiciana  – where the cause of action arose more than one year prior to the filing of the complaint to recover possession of real property, and therefore the action for forcible entry and detainer can no longer be instituted. The issue here is who has the better right of  possession?

PRESUMPTION OF OWNERSHIP Art. 541. A possessor in the concept of an 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. What does it mean by “he possesses with a just title and he cannot be obliged to show or prove it”?  

A po posses ssessor sor is aalways lways presumed presumed to bbee in in goo goodd fa faith. ith. Beca Because use of th thee in inconv convenien enience ce ooff ca carryi rrying ng pr proofs oofs of  ownership around.

In Chan vs. CA, 33 SCRA 737 , the clause “he possesses

with a  just andpossessor he cannot cannot be obliged show orabout provehis it” means  means that,titlethe be to inquired ownership without any valid reason, for he is presumed to be the

Marianne Macayra

1. 2.

One mu must st bbee in possession possession,, ac actual tual or cconstructiv onstructive; e; The poss possession ession must be in the the conce concept pt of an owne owner, r, not mere holder; (see: Art. 540)

  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. Applicability of the article: The article applies to fruits only. It cannot extend to other things like the dismantled materials from a demolished house, part of the hidden treasure pertaining to the owner of the land. Who are the possessors entitled to the fruits?   Only possesso possessors rs in good faith are entitled to fruits. Possessors in bad faith on the other hand are not entitled to fruits but even required to reimburse the fruits already received and to some extent damages.   In Calma vs. Calma, 56 Phil 102 , during the time the possessor is considered in good faith, he is entitled to the fruits he had received out of the property he is possessing. From the moment his good faith had been converted into bad faith – such

 

Page  19  of  19  19

as by judicial summons or extraneous evidence, he loses that right to retain the fruits.   In Mindanao Academy, Inc. vs. Yap, 121 Phil. 204, 204, before legal interruption, the fruits received by the possessor in good faith belong to him. But after judicial summons had been served upon the possessor in good faith, his right to get the fruits not yet gathered terminates t erminates..

§ §

Natural fruits fruits are theproducts spontaneous products of the t he soil, and the young and are other of animals; Industrial fruits  fruits  are those produced by lands of any kind through cultivation or labor. Civil fruits are fruits are the fruits of buildings, the price of leases of  lands, and other property and the amount of perpetual or life annuities or other similar income.

When are fruits considered gathered? ¬

¬

Natural and industrial fruits – the moment they are gathered or severed. Civil fruits – deemed received on their due date not actual payment.

Illustration:: “A” purchased an apartment from “B” in good faith. Illustration “A” leased the apartment to “C” who paid an advance rentals for  1 year in the total sum of PhP120,000.00 at the rate of  PhP10,000.00 per month. Six months after “A” had leased the apartment, he received judicial summons. He lost the case to the plaintiff who was able to prove his superior right to the apartment.   Under the law, “A” must return the rentals due the months after he received the judicial summons. He must therefore return PhP60,000.00 to the true owner, retaining at the same time the other PhP60,000.00 QUESTION:  What is the liability of possessor in bad faith QUESTION:  regarding fruits? a.

As to frui fruits ts alread alreadyy receiv received ed – return them is still still existing or pay for their value if already spent;

b.

As to gr growin owing, g, pe pendin ndingg oorr ungathe ungathered red fruits – no rights whatsoever.

In Director vs. Abagat 53 Phil 147 , in rel. to Lerma vs. dela Cruz, 7 Phil. 581, 581, as additional liability, he must render an accounting of the fruits he had received as well as the fruits he could have received. He is also liable to pay for damages which must be equivalent of the reasonable rent for the occupation of  the property during the period of his possession in bad faith. Note: In MWSS vs. CA, 143 SCRA 623, Note: 623, the right of removal granted to a possessor in bad faith applies only to improvements for pure luxury or mere pleasure. Rule on necessary and useful expenses: [see Art. 546] 1.

Rule:  Every possessor is entitled to a refund whether in good Rule:  faith or bad faith, except that the possessor in good faith is entitled to right of retention of the property until the refund is made. 2.

Notes: Notes: §

Examples: Major repairs of a house [ Angeles Examples:  Angeles vs Lozada, 54 Phil 185 ];]; expenses for cultivation, production and upkeep of the property. [See: Mendoza vs. de Guzman, 52 Phil 104] 104]

Necessary expenses  expenses  are those incurred to  preserve the property without which, the said property will physically deteriorate or be lost.

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Useful expenses – expenses – those incurred to add value to the property or increase productivity of the property.

Examples: Construction of dining room, kitchen, closet and Examples: bathroom [Robles [Robles vs. Lizarraga Hermanos, 42 Phil. 584; 584 ; construction of irrigation system [Valenzuela [Valenzuela vs. Lopez, 51 Phil. 279];]; construction of artificial fishponds [Rivera 279 [ Rivera vs Archbishop of Manila, 40 Phil 717 ].]. Rule: Refundable only to Rule: only to possessors in good faith with the same right of retention as in necessary expenses. Note: The possessor in good faith may remove the useful Note: improvements he had introduced provided that no substantial injury or damage damage would be caused to the principal thing. In Javier vs. Concepcion, 94 SCRA 212 , the right to remove useful improvements is subject to the right of the owner to keep the improvements himself by paying the expenses incurred or the concomitant increase in value of the property caused by the improvements.. In other words, the possessor’s right of removal is improvements subordinate to the right of the owner to retain said improvements [Calagan vs. CFI, 95 SCRA 498 ].]. 3.

Expenses for luxury – luxury – those incurred to cater to the personal comfort, convenience or enjoyment of the possessor.

Rule: They are not refundable. The rationale behind this denial is Rule: that the law does not compensate personal whims and caprices. These improvements are purely for embellishments and not for  preservation of the property, or for increasing the value or  productivity of the property. Examples: Paintings of murals on concrete fence; scenic Examples: painting placed in the wall of bathroom.

RULE ON IRREIVINDICABIL IRREIVINDICABILITY ITY Art. 559. The possession of movable property acquired in good faith is equivalent to 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 of which the owner has been unlawfully deprived, has acquired in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefore.  Acquired in good faith faith   here means the possessor is of the belief that the person from whom he received the thing was its owner and could transfer valid title thereto. Requisites for title: 1. Tha Thatt the the po posse ssessi ssion on is iinn go good od ffai aith; th;

 

 20 Page  20  of  20

2. 3.

Tha Thatt the owne ownerr has vol volunt untari arily ly parte partedd with with th thee possession of the thing; That the posse possessio ssionn is in tthe he conce concept pt ooff an owner. owner.

Note:: Under this situation, if the (real) owner gets the thing, he Note must REIMBURSE. Exceptions to the rule: rule: REIMBURSEMENT.]

[Note:

Here,

there

is

NO

1.

Wh When en the the oown wner er has has los lostt th thee thin thing; g;

2.

Whe Whenn the owne ownerr has bbeen een unla unlawfu wfully lly depr deprive ivedd of the thing;

Exception to the exception: exception: When the possessor had acquired the thing in good faith at a public sale (public auction sale). [Note: Here, the owner of the thing shall REIMBURSE the price paid.] Instances where there could be NO RECOVERY even if  owner offers reimbursement: 1.

2.

3. 4. 5.

If pos posses sessor sor acq acquir uired ed the the thing thing in in goo goodd faith faith by purchase from a MERCHANT STORE or in FAIRS or in MARKETS, in accordance with the code of  COMMERCE of special laws (see Art. 1505, NCC and  Art 85 of the Code of Commerce); Commerce); If own owner er is is by his oown wn ccondu onduct ct preclu precluded ded from deny denying ing the seller’s authority to sell (Estoppel); see: Art. 1505, NCC; Holder Holderss in due cou course rse;; Art. Art. 1518, 1518, NCC; NCC; Finde Finders rs of lost article article aafter fter lapse of ssix ix (6) (6) months; months; Art. 719, NCC; Acqu Acquisiti isitive ve ppresc rescripti ription; on; Art. 1132 1132,, NCC NCC (good (good faith faith – 4 years; bad faith – 8 years).

UNLAWFULLY DEPRIVED EDCA Publishing vs. Santos, 184 SCRA 614 FACTS:: On October 5, 1981, a person identifying himself as FACTS Prof. Jose Cruz of De la Salle College placed an order via telephone for 406 pcs of books with EDCA Publishing payable on delivery (COD). EDCA prepared the ccorresponding orresponding invoice invoice and delivered the books as ordered, for of which Cruz issued personal check covering cove ring the purchase price price P8,995.65. On aOctober 7, 1981, Cruz sold 120 pcs of the books to Leonor Santos who, after verifying the seller’s ownership from the invoice Cruz showed her, paid him P1,700.00.   Meanwhile Meanwhile,, EDCA having become suspicious over a second order placed by Cruz even before clearing of his first check, made inquiries with Della Sale College where he had claimed to be dean and was informed that there was no such person in its employ. Further verifi verification cation revealed that Cruz had no more account or deposit with the Philippine Amanah Bank, against which he had drawn the payment check. EDCA then went to the police, which set a trap and arrested Cruz on October 7, 1981.   On the night of the same date, EDCA sought the assistance of the police which forced their way into the store of Santos and threatened her with prosecution prosecution for buying stolen property. property. They seized the 120 books without warrant, loading them in a van belonging to EDCA, and thereafter, turned them over to EDCA.

Marianne Macayra

Santos sued for for the recovery of the books books.. EDCA contended that it can recover the books from Santos considering that EDCA was unlawfully deprived thereof since the check issued by the impostor was dishonored thus, nullifying the contract of sale between it and the impostor. HELD: Art. 1477 of the Civil Code provides that the ownership of  HELD: the thing sold shall be transferred to the vendee upon the actual or constructive delivery delivery thereof. Art. 1478 also provides tha thatt the parties may stipulate that ownership in the thing shall not pass to the purchaser until he has fully paid the price.   It is clear from the above provisions, particularly Art. 1478 that ownership in the thing sold shall not pass to the buyer until full payment of the purchase price only if there is a stipulation to that effect. Otherwise, the rule is that such ownership sshall hall pass from the vendor to the vendee upon the actual or constructive delivery of the thing sold even if the purchase price has not yet been paid. Non-payment creat creates es a right to ddemand emand payment or  to rescind the contract, or to criminal prosecution in the case of  bouncing checks. But absent the stipulation above noted, delivery of the thing sold will effectively transfer ownership to the buyer who can in turn transfer it to t o another.   In Tagactac vs. Jimenez , the plaintiff sold the car to Feist, who sold it to Sanchez, who sold it to Jimenez, when the payment check issued to Tagactac by Feist was dishonored, the plaintiff sued to recover the vehicle from Jimenez on the ground that she had been unlawfully deprived of it by reason of Feist’s deception. In ruling for Jimenez, the Court of Appe Appeals als held:   “The point of inquiry is whether plaintiff-ap plaintiff-appellant pellant Trinidad C. Tagactac has been unlawfully unlawfully deprived of her ca car. r. At first blush, it would seem that she was unlawfully deprived thereof, considering that she was induced to part with it by reason of the chicanery practiced on her by Feist. Certainly, sswindling, windling, like robbery, is an illegal illegal m method ethod of depriva deprivation tion of property property.. In a manner of speaking, plaintiff-appellant was “illegally deprived” of  her car, for the way by which Feist induced her to part with it is illegal and and punish punishable able by law. But does does thi thiss “unlaw “unlawful ful deprivation” come within the scope of Art. 559 of the New Civil Code?   The fraud and deceit practiced by Feist earmarks this sale as a voidable contract (Art 1390 NCC). Being a voidable contract, it is susceptible of either ratifica ratification tion or annulment. If the contract is ratified, the action to annul it is extinguished (Art 1392, NCC) and the contract is cleansed from all its defects (Art 1396, NCC); if the contract is annulled, the contracting parties are restored to their respective situations before the contract and mutual restitution follows as a consequence (Art 1398, NCC).   However, as long as no action is taken by the party entitled, either that of annulment or of ratification, the contract of sale remains valid valid and bi binding. nding. When plai plaintiff-appellant ntiff-appellant Tagactac delivered the car to Feist by virtue of said voidable contract of  sale, the title to the car passed to Feist. Of course, the title that Feist acquired was defective defective and voida voidable. ble. Nevertheless, at the time he sold the car to Felix Sanchez, his title thereto had not been avoided and he therefore conferred good title on the latter; provided he bought the car in good faith, for value and without notice of the defect in Feist title (Art 1506, NCC)

 

Page  21  of  21  21

  The above rulings are sound doctrine and reflect our own interpretation of Art. 559 as applied applied to the case before us. Actual delivery of the books having been made, Cruz acquired ownership over the books which he could then validly transfer to the private respondents. respondents. The fact that he had not yet yet paid for  them to EDCA was a matter between him and EDCA and did not impair the title acquired by the private respondents to the books.   One may well imagine the adverse consequences if the phrase “unlawfully deprived” were to be interpreted in the manner  suggested the petitioner. person relying ing on thetoseller’s title who buys abymovable propertyAfrom himrely would have surrender  it to another person claiming to be the original owner who had not yet been paid paid the purc purchase hase price therefor. The buyer in in the second sale would be left holding the bag, so to speak and would be compelled to return the thing bought by him in good faith without even the right to reimbursement of the amount he had paid for it.  Aznar vs. Yapdiangco, 13 SCRA 486  FACTS: Santos agreed to sell his car to Marella for P14,700.00, FACTS: the price to be paid after the car is registered in the name of  Marella. After the execution of the Deed of Sale, Sale, Santos together  Marella proceeded to the Motor Vehicles Office where the registration of the car car in Marella Marella’s ’s name was eeffected. ffected. When Santos asked for payment, Marella told him that he was short of  P2,000.00 and informed him that he would get from his sister. Together they rode in the car to the supposed residence of his sister. Upon entering the ho house, use, Marella told Santos to wait in the sala while he asked his sister for the money.   In the meanwhile, on the pretext that Marella had to show his sister of the registration papers of the car, Santos gave them to Marella, who thereupon entered the supposed room of his sister, ostensibly to show her the papers. That was the last time Santos saw Marella and his car. In the meantime Marella succeeded in selling the car to Aznar who bought the same in good faith for P15,000.00. P15,000.00. When Aznar was trying to register the car at the Motor Vehicles Office, the same was seized from him by the Philippine Constabulary as a consequence of the report made to them by Santos.   The lower court decided in favor of Santos applying the provisions of Art 559 and concluded that he was “unlawfully deprived” of his property. property. On appeal, Aznar contended contended that Art. 1506 of the Civil Code and not Art 559 is applicable. Art 1506 provides: “Art. 1506. Where the seller of goods has a voidable title thereto, but his title has not been voided at the time of the sale, the buyer acquired a good title to the goods, provided he buys them in good faith, for value, and without notice of  the seller’s defect or title.” HELD: The contention is clearly HELD: The clearly unmeritorious. unmeritorious. Under the aforequoted provision, it is essential that the seller should have a voidable title at least. It is inapplicabl inapplicablee where, as in this case, the seller had no title at all.   Marella did not have any title to the property under litigation because the same was never delivered delivered to him. him. He sought ownership or acquisition acquisition of it by virtue of the contract. Marella

Marianne Macayra

could have acquired ownership or title to the subject matter  thereof only by the delivery delivery or tradition of the car to him. The car  in question was never delivered to the vendee by the vendor as to complete or consummate the transfer of ownership by virtue of  the contract. It should be recall recalled ed that while there was iindeed ndeed a contract of sale between Santos and Marella, the latter as the vendee, took possession of the subject matter thereof by stealing the same while it was in the custody of the former’s son. See: Cases a. Del Rosario vs. Lucena, 8 Phil. 535  b. Varela vs. Finnick, 9 Phil 482  c.  Arenas vs. Raymundo, Raymundo, 19 Phil 46  d. US vs. Sotelo, Sotelo, 28 Phil. 147 

USUFRUCT IN GENERAL Art. 562, Usufruct gives a right to enjoy the property of  another with the obligation of preserving its forms and substance, unless the title constituting it or the law otherwise provides. CONCEPT: Usufruct Usufruct –  – the right to t o enjoy the property of another, with the obligation of preserving its form and substance unless the title constituting it or the law provides otherwise. Rights of Full Owner =

DISPOSE

+ USE + FRUITS

FULL OWNERSHIP = Naked Ownership +

Usufruct

Characteristics: 1.

Real right;

Essential (Usufruct

2.

Temp Tempor orar aryy in in nnat atur ure; e;

cannot exist

3.

Pur Purpos posee is is to to eenjo njoyy the the ben benef efits its;;

4.

Obl Obliga igatio tionn ttoo co conse nserve rve and preser preserve. ve. - Natural (Ordinarily present but may be eliminated by agreement) and Accidental Accidental   (may or may not be present depending upon the stipulation of the parties)

without these)

USUFRUCT, how created: a.

By law law;; (se (seee Art. Art. 225 225/22 /2266 of the Fa Famil milyy Cod Code, e, in re: re: Art Art.. 321 of the Civil Code.) Note: The property of an emancipated child is owned Note: exclusively by the child and shall be devoted solely for  his support and education. education. As to the fruits or inco income me of  the property, the rights of the parents over the same shall be limited only to the child’s support and collective daily needs of the family.

b. c.

By co cont ntra ract ct or agre agreem emen ent; t; By last last wi willll an andd tes testa tame ment nt..

Rules governing usufruct: a. b.

Agr Agreem eement; ent; (or (or th thee title title gi givi ving ng th thee usu usufru fruct) ct) Civil Code.

 

 22 Page  22  of  22

RIGHTS OF THE USUFRUCTUARY FIRST. The usufructuary shall be entitled to all FIRST. all the natural, 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 considered a stra stranger. nger. (See: Art. 566)

transfer, assign, or alienate such rights. In the same vein, these rights may be subjected to a writ of execution, not being exempt therefrom. SECOND.. The usufructuary has the right to the enj SECOND enjoyment oyment of: a. b. c.

Rules: 1.

Pending natural or industrial fruits: fruits: growing at the time the usufruct begins belongs to the usufructuary;

Here, the usufructuary has no obligation to refund for the expenses but without prejudice to the right of third persons. (Thus, if the fruits had been planted by a possessor in good faith, the pending crop expenses and charges shall be pro-rated between said possessor and the usufructuary) see: Art. 545, NCC;; NCC

THIRD. The usufructuary, in addition to the usufruct (as a right) may: (see: Art. 572) a. b.

- those growing at the time the usufruct usufruct terminates terminates,, belong to the naked owner. (See: Art. 567, NCC) NCC) Here, the naked owner is obligated to reimburse the expenses incurred for the ordinary cultivation and seeds and other similar  expenses from the proceeds of the fruits. (Hence, the excess of  expenses over the proceeds need not be reimbursed.) 2.

Civil Fruits: Fruits: (Rents, pensions, benefits, etc.) see: Art. 570, NCC.. NCC Rule: They shall be deemed to accrue proportionately to the naked owner and usufructuary for the time the usufruct lasts.

Example: A gave B in usufruct the profits of a cert certain ain building for  five (5) years.

c.

Examples: clothes, furniture, vehicles, books, etc. Effect of the deterioration: a.

Because of normal of  normal use – use – the usufructuary usufructuary is no nott liable. He can return them in the conditions they might be in at the termination of the usufruct. usufruct. There is no neces necessity sity for him to make any repairs to restore them to their former condition.  Although there is no express provision on the matter, if the usufructuary does not return the things upon the expiration of the usufruct, he shall pay an indemnity for the value of the thing at the time such expiration.

b.

Because of  fortuitous event - usufructuary is obliged to

b. Suppose however, B di died ed at the end of three (3) years, and the following were the profits from the building: Yr. 1 - P10,000.00

Yr. 3 - P30,000.00* Yr. 4 - P20,000.00 Yr. 5 - P40,000.00  

P120,000.00

Ratio is 3:2, thus: 3(P120,000.00)/5 = P72,000.00 – share of B; 2(P120,000.00)/5 = P48,000.00 – share of A. QUESTION:  What is the nature of dividends? Who shall be QUESTION:  entitled to them?

Enj Enjoy oy the thing thing iitse tselflf or or thru thru aano nothe ther; r; Lease the thing to an anoth other er (fo (forr a peri period od no nott longer longer than that of the usufruct) even without the naked owner’s consent; Alienate, ssell, ell, don donate, ate, bequeat bequeath, h, or devise, sell or  pledge the usufructuary right (not the thing itself or  future crops, for crops pending at the termination of the usufruct belong to the naked owner.)

FOURTH. The usufruc FOURTH. usufructruary truary has the rig right ht to MAKE USE  USE  of  things included in usufruct which gradually deteriorate without being consumed, through wear and tear, in accordance with the purpose for which they were intended. (a.k.a. Abnormal Usufruct)) see: Art. 573. Usufruct

a. If the usufruct lasts for the period stipulated, stipulated, all the profits profits during the said period will go to B.

Yr. 2 - P20,000.00

Acc Access ession ionss (whe (whethe therr arti artific ficial ial or na natur tural) al);; Se Serv rvititud udes es an andd eas easem emen ents ts;; All bene benefits fits inhe inherent rent in pr proper operty ty (i.e.: .e.: the righ rightt to hunt and fish therein, the right to construct rain water  receptacles) see: Art. 571, NCC;

make the necessary and and ordinary repairs (s (see ee art. 592). But the mere deterioration thru normal use does not require the ordinary repairs referred to under art. 592. c.

Because of  fraud - the usufructuary is re responsible sponsible.. But such liability make be set off against improvements. (see:  Art. 580);

FIFTH.   The usufructuary has the right to MAKE USE of  consumable things in things in usufruct. (a.k.a. quasi-usufruct quasi-usufruct,, see art. 574)

QUESTION: Are QUESTION:  Are usufructuary usufructuary rights exempt from execution?

Note: (the principle of creditor-debtor relationship applies) Here, Note: the usufructuary becomes the owner of the things (consumable) in usufruct, such as a sum of money or a quantity of liquid of  grain but he has the obligation to pay for their  current price or  return the things of the same quantity and quality quality at  at the time the usufruct ceases.

In Vda. De Bogacki vs. Inserto, 111 SCRA 356 , usufructuary rights can be disposed of by the usufructuary, thus, he can

SIXTH.  The usufructuary of fruit-bearing trees and shrubs has SIXTH.  the right to make use of the dead trunks, and even of those cut

In Bachrach vs. Siefert, 87 Phil 483, 483 , dividends from shares in a corporation are civil fruits whether in the form of cash or stock dividends. They are not part of the capital, hence, they belong to the usufructuary. usufructuary.

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movables and description description   of the condition of the immovables;

off or uprooted by accident. (a.k.a.  (a.k.a.   special usufruct) usufruct) see: Art. 575. Note: here, the usufructuary is obliged obliged to replace with new plants.

2.

SEVENTH. The SEVENTH.  The usufructuary has the right to make: a. b.

Usef Useful ul iimp mpro rove veme ment ntss; Lux Luxuri urious ous iimpr mprove ovemen ments ts ffor or mere mere pl pleas easure ure..

However: 1. 2.

He mus mustt not alter alter the form oorr sub subst stance ance of the properly properly held in usufruct, unless the naked owner consents; He is not entitled to a refund but either remove the improvement if no no substantial damage to the property is caused (see Art 579); or to set off (compensate) the improvements against damages for which he may be liable (see: Art. 580). His right does not involve an obligation, hence, if the usufructuary does not wish to exercise it, he cannot be compelled by the naked owner to remove his improvements. The option to remove is granted to the usufructuary. usufructuary.

Rule in case of set off: (see. Art. 580) a. If damage is gre greater ater than the the improvement improvement usufructuary is liable for the excess; b. If improv improvement ement iiss grea greater ter than than the damage - th thee naked naked owner is not liable to refund the excess. Rule: If a co-owner of a property gives the usufruct of his share Rule: If to another (see. Art. 582) the usufructuary takes the co-owner’s place as to: a. b.

Adm Admini inistr strati ation on or man manage agemen ment; t; Colle Collectio ctionn of fruits or in interes terestt (but not as to aliena alienation tion,, disposition, or creation of any real right over the property, since these are strict acts of ownership, unless authorized by the naked owner.)

Effect of Partition:  Partition:  The usufructuary continues to have the usufruct of the part allotted to the co-owner concerned.

To give SECURITY SECURITY,, binding himself to fulfill the obligations imposed upon him.

Note: The obligation to make inventory and to give security are Note: not necessary in order for the right to the usufruct begins but are merely required before physical possession and enjoyment of the property can be had. EXCEPTION: Inventory is not required when: 1. No on onee wil willl be in injur jured ed th there ereby by (a (ass in tthe he ca case se oof  f  usufruct over a periodical pension or incorporeal right (see: Art. 570), provided the naked owner consents for  the law says “may” (see: Ar Art.t. 585); 2. In ca case se of w waiv aiver er by the nnake akedd own owner; er; oorr whe whenn there there is stipulation (in a will or contract). Security is not required when: 1.

No on onee wil willl be iinju njured red tther hereby eby ((as as in the case case of  usufruct over a periodical pension or incorporeal right (see: Art. 570), provided the naked owner consents for  the law says “may” (see : Art. 585); 2. In ca case se of waiver waiver bbyy the nnake akedd ow owner ner;; or wh when en tther heree is stipulation (in a will or contract). 3. Whe Whenn the uusufr sufruc uctua tuary ry is tthe he do donor nor ooff the pprop roper erty ty (who has reserved tthe he usufruc usufruct). t). (The naked owner  should be grateful enough not to require the security.); 4. In ca cases ses of ca caucio ucionn jura juratoria toria (prom (promise ise under oath), see:  Art. 587.

CAUTION JURATORIA Art. 587. Caucion Jur Juratoria atoria – a sworn duty tto o take good care of the property and return the same at the end of the usufruct. If a usufruct consists in:

Note:: the co-owner may partition the property even without the Note

1.

Furnitures necessary for the use of the usufructuary;

consent of the usufructuary and the partition is binding upon the usufructuary. However, the na naked ked owner (co-owner) must respect the usufructuary.

2.

House which House  which his family may live;

3.

Tools and implements and implements and other movables necessary for an industry or vocation which the usufructuary is engaged, and the usu usufructuary fructuary cannot afford to giv givee the required security, he may file a petition before the courts to allow him to enjoy possession of the said properties in usufruct and swear under oath to take good care and return them at the end of the usufruct.

OBLIGATIONS OF THE USUFRUCTUARY The usufructuary has obligations: a. b. c.

Before the usufruct; During the usufruct; usufruct; and After the usufruct.

RULE ON ORDINARY REPAIRS

Art. 583: GENERAL RULE: The RULE: The usufructuary BEFORE entering upon the enjoyment of the property is OBLIGED: 1.

To m make ake aft after er notice notice to tthe he owner owner an an INVENTORY INVENTORY   of  all property which shall contain appraisa appraisall of the

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Under Art. Under  Art. 592, 592, the usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct. Note: These are repairs needed because of an event or an act that endangers the the preservati preservation on of the thing. (as distinguis distinguished hed from deterioration under Art. 572).

 

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Conditions for liability: 1. 2. 3. 4.

The Theyy are req requir uired ed by normal normal or nat natura urall use; use; The Theyy are are nee needed ded for preser preservat vation ion;; The Theyy must must have have occ occurr urred ed durin duringg the usuf usufruc ruct; t; They must have happened happened with our withou withoutt th thee fault fault oof f  the usufructuary usufructuary;;

Immovable, meaning of the term “immovable” must be construed Immovable, in its common and not legal sen sense. se. Hence it refers ttoo immovables by nature, such as lands, roads and buildings. Servient estate estate - is one which is burdened by a servitude; Dominant estate  estate  - is one that is benefited as a result of an easement.

Note: If the naked owner had demanded the repair, and the usufructuary still fails to do so, the owner may make them personally or thru another at the expense of the usufructuary.

In Quimen vs. CA, 257 SCRA 163, 163, an easement is a real right on another’s property, corporeal and immovable for the benefit of 

RULE ON EXTRA-ORDINAR EXTRA-ORDINARY Y REPAIRS

another immovable, theelse owner must refrain from doing or allow whereby somebody to of dothe or latter something to be done on his property, for the benefit of another person or  tenement. It is inseparable, indivisible and perpetual, unless extinguished by causes provided by law.

Art. 593. Extraordinary repai repairs rs shall be at the expense of the owner. The usufructuar usufructuaryy is obliged to notify the owner when the need for such repairs is urgent.

Characteristics of easement: 1. 2.

Rules governing the payment of debts of debts of the naked owner if  the usufruct is a universal one (constituted on the whole of a patrimony; and the naked owner has debts or is obliged to make periodical payments. §

§

If  If there there is stipulation to stipulation to pay the debts of the naked owner, apply Art. 758 :

3.

a.

Pay only for prior prior debts debts and and not not for debts contracte contractedd

4.

b.

after the usufruct has been made, unless there is a declaration to the contrary; Pay oonly nly ffor or de debts bts up up to th thee value value of the the prope property rty in usufruct unless, the contrary is intended.

If there is no stipulation  stipulation  to pay the debts of the naked owner, apply Art. 759: 759: a. b.

As a rule rule,, ther theree is is no obliga obligation tion to pay; pay; The oonly nly except exception ion iiss that that wh when en the the usufru usufruct ct was was constituted in fraud of creditors.

“In fraud of creditor ” – when at the time of the constitution of the usufruct, the naked owner did not reserve sufficient property to pay his debts. This is presumed. QUESTION: May usufruct be constituted over a real property in QUESTION: favor of an alien? In Ramirez vs. Vda. De Ramirez, 111 SCRA 704, 704 , a usufruct over parcels of land made by a Filipino in favor of an Austrian woman is valid because ownership of the land is not vested in the usufructuary. usufructuary. What is proscribed by the Constitution is is ownership by an alien.

5. 6.

Easement is an encumbrance imposed upon an immovable for  the benefit of: a. b.

Community; One One oorr mor moree per perso sons ns;;

c.

Anoth Another er immov immovable able bel belongin ongingg to a different different owner owner ((see see  Art. 614) = real easement. easement.

personal easement

from the tenement to which it belongs or divided even if  there is division of the tenement; (see Arts. 617 & 618) It is intra intransmis nsmissib sible le (unles (unlesss th thee te tenemen nementt affect affected ed is also transmitted or alienate alienated; d; It is is pe perpe rpetua tuall un unles lesss ex exting tinguis uished hed..

Inseparability  – easements or servitudes are merely Inseparability  accessories to the tenements to which they are appurtenant. They are inseparable, hence, intransmissible. They cannot be alienated separately from the tenements to which they pertain. Thus, they cannot be alienated independe independently ntly of the real property to which they are attached. In Valisno vs. Adriano, 161 SCRA 398 , the alienation of  tenements carries with it the alienation of the servitudes pertaining to them. Indivisibility  – Both dominant and servient estate may be Indivisibility  divided between two or more persons. But the partition will not modify the easement. Each of the servient owners shall bear the burden of the easement on the part correspondi corresponding ng to his share in the immovable property. Easements may also be: 1.

EASEMENTS OR SERVITUDES

It is a rea real rig righht; Impos Imposable able only against against anoth another’s er’s property property and neve neverr in in one’s own property; it can exist only when the servient estate and the dominant estate belong to two different owners; It is a for form m of limit limitatio ationn on owne ownershi rshipp and a rest restrict riction ion on the enjoyment of one’s own property; It is inse inseparab parable le and indi indivis visible ible;; it cann cannot ot be sepa separate ratedd

Acc Accord ording ing to tthe he MA MANNE NNER R they they are exer exercis cised ed or u used sed:: a.

CONTINUOUS easements  easements  - are those the use of  which is or may be INCESSANT (without any interruption) or without the intervention of any act of  man; Note: Here, for ease Note: easement ment to be “conti “continuous” nuous” the use does not have to be without interruption; it is enough that it MAY BE incessant; Note: Note: The distinction distinction between continuous and discontinuous easements easements refers only to the exercise of 

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ü

the servitude, but not to the essence, because the servitude exists continuously, whether it is being used or not. Examples:: Examples

b.

Easements of drainage drainage - the fact that water flows in it signifies continuous use but the absence of any flow does not make itit non-continuous non-continuous.. It is enough that the flow of water may be without interruption;

ü

2.

How are easements established? 

Accord According ing tto o wheth whether er or or no nott their their EXIS EXISTENC TENCE E is indicated:

Art. 619. Easements ar aree establ established ished either by law law   (legal easements) or by the will of the owners (voluntary easements).

a.

Modes of acquiring easements:

APPARENT Easement  Easement  - those made known and continually kept in view by external signs that reveal the use and enjoyment of the same. Note: The sign need not be seen seen but should should be susceptible of being seen.

Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. a.

Examples: Dam; Window in a party wall visible to both owners; Right of way if there is an alley or a permanent path. b.

Con Contin tinuou uouss and ap appar parent ent ea easem sement entss (me (meani aning ng the theyy are continuous and apparent at the same time) may be acquired by : ¬

NON-APPARENT Easements Easements - they show no external indication of their existence.

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Examples: (in general, negative easements) Easement of not building to a more than certain height; A right of  way if there is no visible path or alley. 3.

Easement light and view on openings made on one’s OWNofWALL.

When a person makes an opening on his own wall to admit light below the ceiling joist, and he acquires a servitude to admit such light, the servitude is a negative one, because: It imposes upon the owner of the adjacent tenement the obligation not to construct on his own land in such a manner as to obstruct the light.

DISCONTINUOUS Easements  Easements  - they are used at intervals and depend upon the acts of man. Example: Easement of right of way because it can be exercised only if a man passes or puts his feet over  somebody else’s land.

NEGATIVE Easements  Easements  - Here, the owner of the servient estate is prohibited to do something which he could lawfully do were it not for the existence of the easement. (a.k.a. ser servitude vitude of liimitation) mitation) Example:

Easements aqueduct    - it ofisprescription) consideredeven as continuous (atofleast, for purposes though the flow of water may not be continuous, or its used depends upon the needs of the dominant estate, or upon a schedule or alternate days or hours. b.

The owner of the servient estate has the duty to cut off the branches of his tree extending over the neighboring estate.

Accord According ing tto o PURPO PURPOSE SE of tthe he ease easemen mentt or natur naturee of  the limitation : a. POSITIVE Easement Easement - Here, the owner of the servient estate is OBLIGED: OBLIGED: (a.k.a servitude of of sufferance) (a) (a) to allow something to be done on his property; or (b) to do something himself on his property. Example: ü

Easement of light and view on openings made on a PARTY WALL.

If one opens a window on a party wall the other owner  may close it anytime. anytime. However, if he do does es not close it, and the other owner acquires the easement by prescription, the other owner can no longer close it. Therefore the owner of the servient estate is allowing something to be done on his property. Note: Easement of light and view on a party wall. Here, the owners of such wall permit the encumbrance to burden their common wall.

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Title (Any kind of juridical act or law sufficient to create the encumbrance i.e.: contract, donation, testamentary successi succession.) on.) Prescription (10 years whether in good faith or in bad faith). Note Note:: see Art Art.. 111 11155 - general rules on prescription are not applicable in cases of  prescription provided for by special or particular  provisions.

b. c.

Dis Discon contin tinuo uous us an andd app appare arent nt - on only ly bbyy tit title le;; Con Contin tinuou uouss an andd ap appar parent ent - on only ly bbyy titl title; e;

d.

Dis Discon contin tinuo uous us an andd nonnon-app appare arent nt - onl onlyy by tit title. le.

Rule (Art. 621) in order that continuous and apparent  easements may be acquired thru prescription: a.

If ea easement is is POSITIVE POSITIVE:: ¬

The period of prescription is counted from the day of  the dominant estate began to exercise it:

Example: A and B are ne neighbors ighbors and they own a party wall. If A makes an open opening ing or window in the party wall in 1988, B can close close it anytim anytimee before 1998. Because if by the time the window is still open, A has already acquired thecounted easement of light and view of 10 years, from the opening of by theprescription window. Note: A window on a party wall is something allow allowed ed by a co-owner to be done on his own property and may

 

 26 Page  26  of  26

therefore give rise to a positive easement of  sufferance. b.

If the the ease easeme ment nt is NEGATIVE NEGATIVE:: ¬

Obligations of the dominant estate: ¬

He cannot alter the easement (Art. 627);

¬

He cannot make it more burdensome (Art. 627);

The period is counted from the date of NOTARIAL PROHIBITION made upon the servient servient estate.

Example: “A” and “B” are neighbors. On his bui building's lding's wall, “A” opened a window beneath the ceiling ceiling joist to admit light, in 1978. 1978. Even after ten yyears ears (1988), “B”

ü

Thus he cannot use the easement except for movable originally contemplated contemplated;;

ü

In the easement of right of way, he cannot increase the agreed width of the path, nor deposit soil or materials outside the boundaries agreed upon (for the acts would be increasing the burden). burden). But he may allow others ttoo use the path (this really does not increase the burden) except if the contrary has has been stipulated. (see: Valderama vs. North Negros Sugar Co., 48 Phil 492 )

ü

If there be several dominant estates each must contribute to necessary repairs and expenses in proportion to the benefits received by each estate (and not in proportion to the value of each estate). In the absence of proof, the benefits are presumed to be equal.

may obstruct the light constructing his owna lot a still building higher than by “A's” unless “A”onmakes notarial prohibition prohibiting “B” from making the obstruction. QUESTION: If in 1984, “A” makes a prohibition, may “B” still make the obstruction?  A: Yes, because, it is only iinn 1994 (ten years after the notarial prohibition) when “A” may be said to have acquired the negative easement of light and view. view. After 1994, “B” “B” may no longer  obstruct.

Rights of the servient estate: ¬

APPARENT SIGN OF EASEMENT Art.624. The existence of an apparent sign of easement between two estates, established or maintained by the owner or both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively or passively, unless at the time the ownership of the two estates is divided, the contrary should be provided in the title of the 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 thi ng owned in common by two or mo more re persons. Note: Article refers not to an existing sign but a sign of an Note: existing easement. It is the servitude between the two tenements which must exist and not the sign thereof. Rights of the dominant estate: ¬

¬

To exercise the easement and all necessary rights for its use including accessory easement (Art. 625);

¬

¬

Th This is mus mustt be aatt his his own own ex expe pens nse; e; He must must N NOTI OTIFY FY the ser servi vient ent owner owner;; Sel Selec ectt conve conveni nient ent time time aand nd manner manner;; He mu must st not not alt alter er th thee easeme easement nt nor nor render render itit more more burdensome.

To ask for a MANDATORY INJUNCTION to prevent impairment or obstruction in the exercise of the easement as when the owner of the servient estate obstructs the right of  way, building a wall or fence (see: Resolme vs. Lazo, 27 Phil  416 ); ); To RENOUNCE totally (for an easement is indivisible) if he desires exemption from the contribution to expenses (Art. 628);

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To make use of the easement, unless deprived by stipulation provided that the exercise of the easement is not adversely affected (Art. 630), and provided further that he contributes to the expenses in proportion to the benefits received, unless there is a contrary stipulation (Art. 628, par. 2); To change the location of a very inconvenient easement provided that an equally convenient substitute is made, without injury to the dominant dominant estate. (Art. 629, part. 2)

Obligations of the servient estate: ¬

¬

¬

To make on the t he servient estate all works necessary for the use and preservation of the servitude, BUT: 1. 2. 3. 4.

¬

¬

To retain ownership and possession of the portion of his land affected by the easement (Art. 630) even if indemnity for the right is given (as in the case of easement of right of way) (Art. 649), unless the contrary has been stipulated;

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He cannot impair the use of the easement (Art. 629, par. 1) He must contribute to the expenses in case he uses the easement, unless there is a contrary stipulation stipulation.. (Art. 628, par. 2); In case of impairment, to restore conditions to the status quo at his expense plus damages. (In case of obstruction, as when he fences the original right of way, and offers an inconvenient substitute way, which is farther and requires turning at a sharp angle, he may be restrained by injunction.) See; Resolme vs. Lazo, 27 Phil. 416 ; To pay for the expenses incurred for the change of location or  from of the easement (in the proper case). See: Art. 629, par. 2

MODES OF EXTINGUISHMENT OF EASEMENTS Art. 631. Easements aare re exti extinguished: nguished: 1.

By MERGER MERGER:: ¬

The merger must be absolute (without any condition), complete (not partial) and not ttemporary. emporary. Thus, if the

 

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owner of the servient buys the whole portion affected, the merger is complete, and the easement is extinguished. But if the portion bought is not the portion affected, the easement naturally remains.

5.

 of the dominant estate: WAIVER or RENUNCIATION WAIVER or  RENUNCIATION of ¬

Examples: ü

Temporary merger :

6.

Q: The dominant owner sold a retro his estate to t o B, the servient owner. Is the easement easement extinguished?  A: No, it is only suspended for the merger is only temporary. It is revived when the property property is redeemed. ü

2.

 As a general rule, the renunciation renunciation must be expres express, s, clear  and specific (otherwise it may be confused with noneuser). However, it may be tacit for as long as there are acts which clearly reveal it beyond doubt.

REDEMPTION agreed REDEMPTION  agreed upon: ¬

7.

Conditional merger : The dominant estate was donated to the servient estate, but it was stipulated that if the servient owner later marries X, the property reverts to the dominant dominant owner. Pending the resolutory resolutory condition, the merger is considered temporary, and the easement is merely suspended. When the servient owner marries marries X, the ease easement ment is revived. If no marriage takes place (as when X dies) the easement really is extinguishe extinguished. d.

which the easement would be extinguished. OTHER causes: a.

Expropriation of the servient estate;

b.

Annulment, rec recession ession or can cancellation cellation of the titl titlee that constituted the easement;

c.

Abandonment of the servient estate;

d.

Resolution ooff the rig right ht of the granter to create the easement (as when there is redemption of the property sold a retro because of the exercise of the right of  conventional redemption redemption); );

By NON-USER NON-USER for  for 10 years: ¬

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Non-user refers to an easement that has once been used because one cannot discontinue using what one never  used. Non-user means voluntary abstention and not due to fortuitous event, because the basis of this cause is presumptive renunciation.

LEGAL EASEMENTS Art. 634. Easements imposed by law have for ttheir heir object either public use or the interest of private persons. Legal easements - those imposed by law and which have for  their object either: a.

Publi Publicc us usee - gover governed ned by by sp specia eciall la laws ws (i.e. .e. Law oonn Waters; Irrigation Law; Water Code);

b.

The iinter nterest est of pr priva ivate te pe perso rsons ns - gove governe rnedd by tthe he provisions of the Civil Code; agreement between the parties; general or local laws.

Note: From Note:  From what time to compute?

3.

This is voluntary redemption, existing because of a stipulation. Stipulations may provide conditions under 

a.

Discontinuous  - (like right of way) from the time it Discontinuous  ceased to be used.

b.

Continuous - (like aqueduct) from the day on which an Continuous act contrary to the same took place. Thus the erection of works incompatible with the exercise of the easement or totally obstructing the servitude, agreed to by the owner of the dominant estate, amounts to a tacit renunciation and extinguishes the servitude. (see: Ongsiako vs. Ongsiako, 3-30-57 )

Different kinds of legal easements: 1.

Ease Easeme ment nt rel relat atin ingg to: to: ¬

By IMPOSSIBILITY OF USE  USE  or  BAD CONDITION  CONDITION  of the tenement:

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waters  - natural drainage of lands (Art. 637); natural waters  drainage of buildings (Art. 674); easement on riparian banks for navigation; floatage and salvage  salvage  (Art. 638) - easement of a dam (Arts. 639, 647); easement for drawi drawing ng water or for  watering animals (Arts. 640-641); easement of aqueduct (Arts. 643-646); easement for the construction of a stop lock or sluice gate.

The impossibility of using the easement, which arises from the condition of the tenements, only suspends the servitude, until such time when it can be used again. An example of this would be the flooding of the servient tenement over over which a right of way exists. Unless, extinguishment is caused by the necessary period for  non-user.

2.

Right of way;

3.

Party wall;

4.

Light an and vi view;

4. By EXPIRATION EXPIRATION   of the term or  FULFILLMENT FULFILLMENT   of the condition:

5.

Drainage;

6.

Inter Interme medi diate ate dista distanc nce; e;

7.

Ea Ease semen mentt ag agai ains nstt nu nuis isan ance ce;;

8.

La Late tera rall and ssub ubja jace cent nt ssup uppo port rt..

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Example: An easement was agreed upon to last till the owner of the dominant dominant estate bec becomes omes a lawyer. When the condition is fulfilled the easement is extinguished.

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2.

Annoy Annoyss or or off offends ends the sens senses. es. (ex: (ex: Too much noise or  horn blowing; a chimney which renders a house uninhabitable due to excessiv excessivee smoke)

3.

Shoc Shocks, ks, defies defies oorr dis disrega regards rds decency decency or morali morality. ty. ((ex: ex: Public exhibition of a naked person; strip-teasing; public display of nude posters.)

EASEMENT OF RIGHT OF WAY Art. 649. Easement of right of way. Definition: the easement or privilege by which one person or a Definition: particular class of persons is allowed to pass over another's land, usually through through one particular particular path or liline. ne. The term right of  way   may either refer to the easement itself or the strip of land way over which passage can be done.

Note: The standard of morality changes. So that what Note: was immoral 20 years ago may not be immoral today. The third instance then depends on time, place and standard of morality of countries and people.

Requisites: a.

The prope property rty is surro surrounde undedd by the esta estates tes of oothers thers;;

4.

b.

There is no adequa adequate te ou outlet tlet to a public public highw highway. ay. (If outlet outlet is thru the water, like a river or sea, under Spanish law, the easement cannot be demanded for there exists an adequate outlet; it is believed that in Philippines, a distinction must be made, depending on danger, convenience and cost.);

Obstru Obstructs cts or interf interferes eres with the free pass passage age of any public highway or streets, or any body of water. (ex: houses erected on public streets)

5.

Hinder Hinderss or im impai pairs rs the uuse se of pprop ropert erty. y. (ex (ex:: Ille Illegal gal constructions on another’s land)

c.

What are the different kinds of nuisance? 

There must be ppayme ayment nt of of pro proper per indemnity indemnity,, (but (but llater ater on, the amount may be refunded when easement ends, see:  Art. 655);

d.

It must must be establis established hed aatt a po point int least least prejud prejudicia iciall to the the servient estate. (This is generally but not necessarily the shortest distance);

e.

The isolation isolation must must not not be due to the proprieto proprietor's r's oown wn ac acts ts (as when he has built enclosing walls, see : Art. 649);

f.

Demand Demandabl ablee on only ly by by the the own owner er or one with with a real real righ rightt lik likee a usufructuary. (The lessee shou should ld ask the lessor lessor to demand the easement from adjoining estates.)

1.

Pub Public lic or privat privatee nuis nuisanc ancee (A (Art. rt. 695 695): ): ¬

affects a community neighborhood any considerable number of or person although theorextent of the annoyance, danger or damage upon individuals may be unequal. ¬

Note:: The onus or the burden of proof is upon the owner of the Note dominant estate to show the specific averments in his complaint the existence of the requisites or preconditions enumerated.

2.

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NUISANCE

¬

3.

Nuisance per se – se – a nuisance at all times and under  all circumstances or conditions. Nuisance per accidens  accidens  - a nuisance only under  certain circumstances or conditions. conditions.

Attrac Attractive tive nuisance nuisance – Th This is is any cont contrivan rivance ce w whic hichh is

very attractive to children but very dangerous to them. REMINDER: •

Why is nuisance a modification of ownership?  Because if one’s property becomes a nuisance, he can be deprived of its enjoyment and even be deprived of its ownership. So, if a house is about to collapse and may cause injury to others, the owner can be compelled to demolish the house.

Private nuisance – One which violates only private rights and produces damage to but one or few persons and cannot be said to be public.

Nuisan Nuisance ce pper er ssee or nuisa nuisance nce per aacci cciden dens: s:

QUESTION:: Can there be judicial easement? QUESTION easement? In La Vista Association vs. CA, 278 SCRA 498 , when the court says that an easement exists, it is not creating one. For even an injunction cannot be used to create one as there is no such thing as judicial easement. The court merely declares the existence of  an easement created by the parties.

Public  nuisance – the doing of or the failure to do Public  something that injuriously affects safety, health or  morals of the public, or works some substantial annoyance, inconvenience or injury to the public. It

•

 An attractive nuisanc nuisancee is not illegal. It may be legal or  legitimate thing but because of its nature, it can easily injure children, that is why it is called attractive nuisance. Example: firearms. If one is an owner of an attractive nuisance, he is required to exercise the highest degree of diligence to prevent it from being played by children.

NUISANCE, defined:

Hidalgo Enterprises vs. Balandan 91 Phil. 488 

 Art. 694 provides provides:: A nuisance nuisance is any act, omiss omission, ion, establishment, condition of property, or anything else which:

FACTS: A certain ice-plant factory maintained two big tanks full FACTS: of water in a place where children pass by. by. A boy 8 years of age passed by and entered the premises of the factory and took a bath in one of the tanks. While swimming swimming,, the boy drowned and died. The parents of the boy filed an ac action tion for damages against the factory alleging that the tank full of water was an attractive

1.

Injure Injures s oorr endan endangers gers the health health or ssafety afety offactory th thee oothers thers. (ex: House in danger of falling; explosive in a. residential area.

Marianne Macayra

 

Page  29  of  29  29

nuisance and yet the factory did not provide any precaution to avoid injury.

b.

CIVIL ACTION; ACTION;

c.

EXTRA-JUDICIAL ABATEMENT  ABATEMENT  (abatement, without  judicial proceedings. proceedings. (Art. 699);

The following issues issues were  were raised: 1.

Whe Whethe therr or not wa water ter can can be consi consider dered ed an attra attracti ctive ve nuisance. The SC held that water in any form is not an attractive nuisance. Nature in itself has created streams, streams, lakes, and pools pools which attract ch children. ildren. Lurking in their  their 

Note: Remedy (b) and (c) above may be bbrought Note: rought by any private individual if the nuisance is specially injurious to himself. ¬

waters ischildren alwaysare thetodanger the of drowning. drowning danger, know the danger. . Against this 2.

Wheth Whether er on not tthe he tank tank full of water water is is an attra attractiv ctivee nuisance? It is neither an an attractive nnuisance. uisance. Any imitation imitation of  nature, like a swimming pool, is not an attractive nuisance. So, if the owner owner of a private property creates creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, he is not liable.

If it is a PRIV RIVAT ATE E NUIS UISAN ANCE CE,, the herre are are 2 po poss ssib ible le remedies:: remedies a.

Ci Civvil ac acti tioon; or 

b.

Abatem Abatement, ent, with without out judi judicial cial proc proceedi eedings ngs (Art. 705)

QUESTION: What are the requisites for the abatement of  QUESTION: nuisance, whether public or private, without judicial proceedings? (Art. 703 and 704)  ANSWER: a.

There must be sshowi howing ng that the nuis nuisance ance is sspeci pecially ally injurious to the person seeking the abatement of  nuisance; (Art. 703)

Who can be liable for damages for the nuisance cause? 

b.

The owner or possessor who originally caused the nuisance and the subsequent owner or possessor of the property are jointly

Tha Thatt deman demandd be first first mad madee upon upon tthe he oowne wnerr or  possessor of the property to abate the nuisance;

c.

Tha Thatt such such deman demandd has been been rreje eject cted ed or ignore ignored; d;

d.

Tha Thatt the abat abatem ement ent mus mustt be appr approve ovedd by the C City ity Engineer in Manila and other chartered cities, and in the provinces, by the Provincial Health Officer and executed with the assistance of or attended by a member of the local police force;

e.

That tthe he ab abateme atement nt m must ust bbee do done ne in ssuch uch a way way tha thatt it does not breach public peace, or do unnecessary injury;

f.

Tha Thatt the the va value lue of tthe he tthi hing ng to be aaba bated ted doe doess no nott exceed P3,000.

and severally liable. who (Art.fails 696: Every tosuccessive success owner or  possessor of property or refuses abate ive a nuisance in that property started by a former owner or possessor is liable therefore in the same manner as the one who created it.) Who are liable?  In general: a. b. c. d. e.

One who who creat reates es;; All All wh whoo pa parrtici ticipa pate tes; s; One wh who ad adopts; One who continue continuess a prev previous iously ly ex existin istingg nu nuisan isance; ce; One who refuse refusess to to abat abatee nuisa nuisance nce..

If a property which has already caused nuisance is removed, is it a defense?   A: Art. 697: NO, the abatement of a nuisance nuisance does not preclude the right of any person injured to recover damages for its past existence. May an action for abatement of a nuisance prescribe?   A: NO, an action for abatement of a nuisance is i s one which is imprescriptible. A nuisan nuisance ce can be abated anytime. Art. Art. 698: Lapse of time cannot be legalize any nuisance whether public or  private. Art. 1143, 2nd par, an action to abate a public or private nuisance is not extinguished extinguished by prescription: What are the remedies against a nuisance?   A: It depends on whether whether it is a pub public lic or private nui nuisance. sance. ¬

If it is a PUBLIC NUISANCE, there are 3 possible remedies:: remedies a.

CRIMINAL PROSECUTION  PROSECUTION  under the Penal Code or  any local ordinance [Note: This remedy is instituted by public officers (ordinarily the mayor)];

Marianne Macayra

Note:: Note ¬

¬

Criminal prosecution prosecution is not mentione mentioned. d. However, if a crime has been committed as defined in the Revised Penal Code, criminal prosecution can proceed. If the nuisance to be abated is more than P3,000.00 it cannot be abated without judicial proceedings. It can be abated only through a criminal or civil action in court as the case may be.

When may a private person or a public officer extra judicially  abating a nuisance be liable for damages?  Art. 707: 707: 1. 2.

If he he caus causes es unn unnec ecess essary ary injury injury;; or  If an aallege llegedd nu nuisan isance ce is later later dec declare laredd by the court courtss to be not a real nuisance.

Cases: a.

Pp vs. de Guz Guzman, man, et. al. al.,, 90 Phil. 132 

b. c. d. e.

Espiritu vs. Municipal Council, 102 Phil 867  Iloilo Cold Storage vs. Mun. Council, Cou ncil, 24 Phil. 471 Canlas vs. de Aquino, 2 SCRA 814 San Rafael vs. City of Manila, 46 SCRA 40 

 

Page  30  of  30  30

f. g.

Velasco vs. Manila Electric, 40 SCRA 342  Ramcar vs. Millar, 6 SCRA 517 

DIFFERENT MODES OF ACQUIRING OWNERSHIP

3.

The pprop ropert ertyy se seize izedd mu must st be ssusc uscep eptib tible le oof  f  appropriation (either unowned or abandoned property);

4.

The There re mus mustt be be inten intentt to to ap appro propr priate iate;;

5.

The rrequ equisi isites tes oorr con condit dition ionss of th thee law mu must st bbee complied with (i.e.: good faith; proper title; legal period of time).

Modes of acquiring ownership: a.

ORIGINAL MODE: ORIGINAL  MODE: (Ownership is acquired for the first time)

b.

1.

Occupation   (hunting, fishing, Occupation fishing, hidden treasure);

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

2.

Intellectual Creation  Creation  (books, copy rights, patents, letters);

Reasons: Because a land that is not shown to belong to anyone is presumed to be a public land;

DERIVATIVE  MODE: (There is merely a transfer of  DERIVATIVE  ownership; somebody else was the owner before)

  - Occupation as a mode of acquiring ownership refers to movables   which are either considered as res nullius  movables nullius  or  res derelicta.. derelicta

3.

Succession;; Succession

4.

Donation;; Donation

5.

Prescription (Art. Prescription  (Art. 1106);

Intellectual Creation is the product of mental labor embodied in writing or some other material form.

6.

Law  (Arts.  (Arts. 158, 445, 461, 465, 466, 681, 1434, 1456 – NCC);

Art. 721. By intellectua intellectuall creation, the follow following ing persons acquire ownership:

7.

Tradition (meaning: legal delivery actual/constructive) Tradition (meaning: as a consequence of certain contracts (i.e.: sale, barter, assignme assignment, nt, simple loan or mutuum)

INTELLECTUAL CREATION

¬

¬

MODE - - the process of acquiring or transferring ownership. MODE

¬

TITLE  - that which is not ordinarily sufficient to convey TITLE  ownership, but which gives a juridical justification for a mode; that is, it provides the cause for the acquisition of ownership. Example: If “A” sells to “B” a specific car for a specific amount, the sale is the title; by virtue of such title, “A” should now deliver  the property to “B”. It is the delivery delivery or tradition that makes “B” the owner; it is the tradition that is the mode.

¬

Art. 713. Occupation is the acquisition of ownership by SEIZING corporeal things that have no owner, made with the intention of acquiring them, and accomplished according to legal rules. Occupation distinguished from possession: ¬

¬

Occupation can take place only with respect to property without an owner; while possession can refer to all kinds of  property whether with or without an ownership. Occupation, in itself when proper confers ownership; but possession does not by itself give rise to ownership.

Requisites for occupation: 1.

2.

The There re must must be a seizur seizuree of appreh apprehens ensio ionn (note: (note: the material holding is not required as long as there is right of dispositio disposition); n); The property property seiz seized ed must must be corporea corporeall (personal (personal)) property;

Marianne Macayra

The composer, as to his musical composition. The painter, sculptor, or other artist, with respect to the product of his art. The scientist or technologist or any other person with regard to his discovery or invention.

Art 722. ¬

¬

OCCUPATION

The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work.

Ownership before before publication  publication – exclusive; Ownership after   publication – no more exclusive right except when work is copyrighted.

Note:: Mere circulation among close friends and associates Note however, is not considered publicatio publication. n. Art. 723. Letters and other 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. Rules: •

•

•

The physical or material object is owned by the person to whom it has been sent. The thoughts, ideas and form of expression contained in the letter belong to the sender or author of the letter. The recipient cannot publish or disseminate the letter, unless: a.

The w writ riter er or tthe he w writ riter’ er’ss he heirs irs con consen sent; t;

b.

The ppublic ublic good or th thee int interes erestt of justice justice so re require quiress as when the:

 

Page  31  of  31  31 •

•

The publication is necessary for the vindication of the character of the person to whom the letter is addressed. The letter is produced as evidence in court, in the course of  the administration of justice, except when the t he letter constitutes a privilege communication and cannot be admitted in evidence without the consent of the writer.

COPYRIGHT Nature of Copyright: ¬

¬

It is the exclusive right secured by law to an author or his assigns to multiply and dispose of copies of an intellectual or  artistic creation. It is a corporeal right to print and publish, and exist independent of the corporeal property out of which it arises.

The objectives of copyright are: 1.

To eencou ncourage rage individua individuals ls to iinte ntellect llectual ual labor labor by assuring them of just rewards;

2.

To ssecure ecure the society society ooff tthe he larges largestt benefit benefit of thei their  r  products.

Right of a copyright owner: ¬

¬

¬

¬

To print, reprint, publish, copy, distribute, multiply, sell and

and Me”, claimed that IXL Productions & RPN Channel 9 infringed upon their copyright by copying the format and style thereof in its show, “It’s a Date”. HELD: The Court, speaking thru Justice Mendoza, ruled that the HELD: format of a show is not copyrighta copyrightable. ble. The format or mechanics of a television show is not included in the list of protected works in P.D. No. 49. For this reason, the protec protection tion afforded by tthe he law cannot be extended to cover them.   Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent righ rightt granted by the statute, and not simply a pre-existing right regulated by the statute. Being a st statutory atutory grant, the righ rights ts are only ssuch uch as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by the persons, and on terms and conditions specified in the statute.   P.D. No. 49, in enumerating what subjects are subject to copyright, refers to finished works and not to con concepts. cepts. The copyright does not extend to an idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Thus, the new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides:

make photographic illustrations of the copyrighted work. To make translations or other versions or extracts or  arrangements or adaptations thereof.

SECTION 175. Unprotected Subject Matter.  Matter.  Notwithstanding the provisions of Section 172 and 173, no protection shall extend, under this law, to any idea, procedure, system, method or operation, concept, principle discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the days and other miscellaneous facts having the character of  mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof.

To exhibit, perform, represent, produce or reproduce the copyright work. To make any other use or disposition of the copyrighted work.

Extent of the protection: •

•

 Concepts, theories, speculations speculations,, abstracts of ideas however original they may be are not covered by the protection, because there is no monopoly of theories and speculations of an author. He may transfer these theories of  ideas into intellectual products as books, letters or any form of writing or illustration. illustration. These are exclusively exclusively his. But once caused to be published, his exclusive right over  the same causes, except when copyrighted. But the protection extends only in so far as the form, language or  style of the production are concerned and not the theories or  the ideas themselves. So that when one copies the form, style and language, there is infringement. It should be a copy of the origin original al but similarity similarity alone is not sufficient, sufficient, what is important though is the copy is so near to the original as to give to every person seeing it the idea created by the original.

Note: Copyright does not extend to the general concept or format Note: of a dating game show. Francisco G. Joaquin & BJ Productions, Inc., vs. Hon. Franklin Drilon, et. al., [G.R. No. 108946, January 28, 1999]  FACTS:: This is a prosecution for violation of PD 49 [Decree on FACTS Intellectual Property]. Joaquin and BJ Productions, Inc. holder  of a Certificate of Copyright of a TV dating game show, “Rhoda

Marianne Macayra

  Cinematographic works and works produced by a process analogous to cinematography or any process for making audiovisual recordings;  

The copyright does not extend to the general concept or 

format its dating game show. Accordingly, very nature of the of subject of petitioner BJPI’s copyright,bythetheinvestigating prosecutor should have the opportunity to compare the videotapes of the two shows.   Mere description by words of the general format of the two dating game shows in insufficient, the presentation of the master  videotape in evidence was indispensable to the determination of  the existence existence of probable cause. As aptly observed by respondent Secretary of Justice: A television show includes more than mere words can describe because it involves a whole spectrum of visuals and effects, video and audio, such that no similarity or dissimilarity may be found by merely describing the general copyright/format of both dating game shows. The requirement of originality: Originality does not  not  mean novelty or ingenuity, neither uniqueness nor creativity. The law does not impose such requirements. Originality simply means that the work “owes its origin to the author”. It means that the

 

Page  32  of  32  32

work is an independent creation of the author. [See: IPL by Ranhilio C. Aquino, 2003 Ed.]

a.

The w work ork mus mustt origi originat natee fr from om its its autho author; r;

b.

It must must no nott bbee ccop opie ied; d;

Excepted from this privilege are works produced by film, slide, television image or analogous process. Otherwise, copyright in them would mean nothing at all, for public display, showing or  exhibiting them are precisely the source of economic advantage for their creators, while painters and sculptors derive economic gain from the sale of the work w ork itself.

c.

It mu must st invo involve lve ssome ome in intel tellec lectua tuall effor effort. t.

However : [see: IPL by Ranhilio C. Aquino, 2003 Ed.]

Requisites:

Note: •

•

Copyright extends to adaptations of the original work. However, in regard to works that are adaptations, such as abridged works, digests, anthologies – There will still be originality sufficient to warrant copyright protection if the author, through his skill and effort, has contributed a distinguishable variation from the older works. In such a case, only those parts which are new are protected by the new copyright. Garfield’s creator obviously has copyright to the comic strips that entertain us with the antics of this strange mutant of a feline. But does the copyright protection operate to bar an entrepreneur from creating Garfield stuffed toys or sculptor  from immortalizing the flabby cat in Italian marble? A simpler   judicial approach would be to treat the toy or the piece of a sculpture as a derivative work, and thus, to require authority from Garfield’s creator before allowing it legal status. [See: IPL by Ranhilio C. Aquino, 2003 Ed.]

THE INTERLEGO DOCTRINE   “There must be in addition some element of material alteration alteration or  embellishment which suffices to make the totality of the work an original work. Even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition. But copying per se, however much skill or labor might be devoted to the process could not make an original work.” Note: What is protected by copyright is not merely the visual Note: appearance but the work as embodied in a particular artistic medium, example - an artfully blown glass rose versus a transposition of the same rose but into different artistic medium – a pencil sketch. Is there infringement? A skillfully and artistically blown glass rose is protected as a glass rose, so that changing the medium is not infringing the work. [See: IPL by Ranhilio C.  Aquino, 2003 Ed.] Ed.]  A copyright  precludes trademark  precludes trademark registration. registration. In United Feature Syndicate vs. Munsingwear, GR No. 76193, 11-9-89, the 11-9-89,  the SC held that the exclusive rights vested by PD 49 in favor of a copyright owner preclude the appropriation appropriation of the same work as a trademark. QUESTION: Would public display of a purchased copyrighted work, like paintings constitute infringement? Generally, there is no infringement. PD 49 and RA 8293 are silent on this point. It is patently absurd to deny a purchaser of a work of art the right to display it publicly and to impose upon him the obligation of concealing it from public view.

Marianne Macayra

a.

A pro protec tected ted ph photo otogra graph ph ca canno nnott be cop copied ied bbyy dra drawin wingg or by photographic reproduction;

b.

A ch choreog oreographi raphicc wor workk is infringed infringed by a still still ph photo oto w while hile dance routine is in progress;

c.

A photogr photograph aph copyright.

of of

cop copyri yright ghted ed

je jewel welry ry

iinfri nfringe ngess

When is there infringement?  Substantial reproduction does not require reproduction of the entire copyrighted work, or even a large portion thereof. If so much is taken that the value of the original work is substantially diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is suffic sufficient ient in point of law to constitute piracy. It is not the copying, per se, that is prohibited but the injurious effect it has on the author of the copied work. The unfair  appropriation of one’s research effort is sufficient injury to sustain a claim. (See: Habana vs. Robles GR No. 131522, 7-09-99) 7-09-99) Remedies in case of infringement: a.

Damages;

b.

Injunction;

Effect of expiration: On the final expiration of the copyright term, the whole work falls into the public domain and becomes free and unrestricted. TRADEMARKS General Garments Corporation vs. the Director of Patents and Puritan Sportswear Corporation [G.R. No. L- 24295. September 30, 1971]  ISSUE: Whether or not a foreign corporation, unlicensed and  unregistered to do business in the Philippines has legal capacity  to maintain a suit in the Philippine Patent Office for cancellation of a registered trademark.   A foreign corporation which has never done business in the Philippine Islands and which is unlicensed to do business here, but widely and favorably known in the Islands through the use of  its products bearing its corporate and trade name has a legal right to maintain an action in the Islands.   The purpose of such a suit is to protect its reputation, corporate name and goodwill which have been established through the natural development of its trade for a long period of  years. The right to the use of the corp corporate orate or trade name is a property right, a right in rem rem,, which it may assert and protect in any of the courts of the world- even in jurisdictions where it does not transact business- just the same as it may protect its t angible property, real or personal against trespass or conversion.

 

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 Ang Si Heng and Salustiana Dee vs. Wellington Dept. Store Inc., Benjamin Chua, S.R. Mending Store Inc. Mendinueto, and Filemon Cosio (G.R. No. L.4531, Jan. 10, 1953) ISSUES:  Are geographical indications indications registrable? When does use of trade name constitute unfair competition? a.

The term term ““Well Wellingt ington” on” iiss either either a geographi geographical cal name or  surname of a person. Geographical names are regarded as common property and it is a general rule that the same cannot be appropriated as the subject of an exclusive trademark or trade name. Even if Wellington was a surname, it cannot also be validly registered as trade name. Therefore an action for violation of trademark cannot be maintained because the right to damages or injunction is granted only to those entitled to the exclusive use of a registered trademark or trade name. (Section 23, Republic  Act No. 166)

b.

On unfair unfair compe competiti tition, on, whil whilee there is a similari similarity ty bet between ween the trademark or tradename “Wellington Company” and that of “Wellington Department Store,” no confusion or deception can possibly result or arise from such similarity because the latter is a “department store”, while the former does not purport to be so. Moreover, the Supreme Court held that t hat the public cannot be deceived that the goods of the plaintiff  originate from the defendant’s store because the defendant’s store does not sell clothing apparels bearing the plaintiff’s mark “Wellington”. Neither could such deception by any possibility be produced because the defendant’s store is situated at Escolta, while plaintiff’s store or place of business is located in another  business district far away from Escolta. The mere fact that two or more customers of the plaintiffs thought of the probable identity of the products sold by one and the other  is not sufficient proof of the supposed confusion that the public has been led into by the use of the name adopted by the defendants. No evidence has been submitted that customers of the plaintiffs-appellants had actually been misled into purchasing defendant’s articles and merchandise.

Crisanta Y. Gabriel vs. Jose R.Perez R .Perez and Honorable Tiburcio Evalle as Director of Patents (G.R. No. L-24075, January 31, 1974) ISSUE: Whether or not petitioner  as exclusive distributor of  Respondent became the rightful, owner of the trademark “WONDER”.   The exclusive distributor does not acquire any proprietary interest in the principal’s trademark. “In the absence of any inequitable conduct on the part of the manufacturer, an exclusive distributor, who employs the trademark of the manufacturer, does not acquire proprietary interest in the mark which will extinguish the rights of the manufacturer, and a registration of the trademark by the distributor as such belongs to the manufacturer, provided the fiduciary relationship does not terminate before application for  registration is filed.” (87 CJS 258-259, citing cases.)

Marianne Macayra

Philippine Refining Co., Inc., vs. Ng Sam and the Director of  Patents (Gr No. L-26676, July 30, 1982) Camia Cooking Oil vs. Camia Ham ISSUE: Whether or not registration of the same mark under the same class for non-competitive and unrelated goods may be allowed. HELD: The parties are non-competitive and their products so HELD: unrelated that the sue of identical trademarks is not likely to give rise to confusion, much less cause damage to petitioner.   While ham and some of the products of petitioner are classified under Class 47 (Foods and Ingredients of Food), this alone cannot serve as the decisive factor in the resolution of  whether or not they are related goods. Emphasis should be on the similarity of the products involved and not on the arbitrary classification or general description of their properties or  characteristics. The particular goods of the parties are so unrelated that consumers would not in any probability mistake one as the source or origin of the product of the other.   “Ham” is not a daily food fare for the average consumer. One purchasing ham would exercise a more cautious inspection of what he buys on account of its price. In addition, the goods of  petitioners are basically derived from vegetable oil and animal fats, the product processed pig’s legs. while A consumer wouldofnotrespondent reasonablyis assume thatfrom petitioner  has so diversified its business to include the product of  respondent.   The term “CAMIA” is descriptive of a whole genus of garden plants with fragrant white flowers. Some people call the “CAMIA” the “white ginger plant” because of its tuberous roots, while children refer to it as the butterfly flower because of its shape. Being a generic and common term, its appropriation as a trademark, albeit in a fanciful manner in that it bears no relation to the product it identifies, is valid. However, the degree of  exclusiveness accorded to each user is closely restricted. Esso Standard Eastern Inc., vs. United Cigarette Corp. G.R. No. L-29971, Aug. 31, 1982  Esso Petroleum vs. Esso Cigarette ISSUE: Whether or not the protection afforded by a trademark  registration extends to all goods.   The goods on which petitioner uses the trademark ESSO, petroleum products, and the product of respondent, cigarettes, are non-competing. Trademark infringement depends on whether  or not the goods of the parties are so related that the public may be, or is actually, deceived and misled that they came from the same manufacturer. In cases of related goods, confusion of  business could arise out of the use of similar marks, in the case of non-related goods, it could not.   In the case at bar, the goods are obvious obviously ly different from each other – with “absolutely no iota of similitude”. They are so foreign that it is unlikely that purchasers would think that petitioner is the manufacturer of respondent’s goods. One of the factors that show that the goods involved are non-competitive and non-related is the fact that respondent’s goods are beyond Petitioner’s “zone of potential or natural and logical expansion”.

 

 34 Page  34  of  34

age, training and education of the usual purchaser, the nature and cost of the article, whether the article is bought for  immediate consumption and also the conditi conditions ons under which it is usually purchased.

Moreover, respondent’s goods are distributed through different channels of trade. SIMILARITY TEST : To determine whether a trademark has been infringed, the mark as a whole must be considered and not as dissected. If the buyer is deceived, it is attributable to the marks as a totality, not usually to any part of it [Del Monte Corporation vs. Court of Appeals, 181 SCRA 410]

•

“visible difference DISSIMILARITY TEST   [or the so-called “visible test ””]:]: In the case of  Asia  Asia Brewery vs. Court of Appeals (224 SCRA 437), 437), the SC applied the “dissimilarity test” or “visible difference test” in determining whether or not there exists unfair  competition. In this case, while the Supreme Court did not abandon the “similarity test”, it nevertheless, qualified the same when it applied the “visible difference test” test” especially so when the dissimilarities dissimilar ities abound. It said: “Besides the dissimilarity dissimilarit y in their  names, the following other dissimilarities in the trade dress or  appearance of the competing brands abound: 1.

2.

The S SAN AN MI MIGUE GUELL PAL PALE E PIL PILSEN SEN bbot ottle tle has has a slen slender  der  tapered neck. The BEER PALE PILSEN bottle has a fat, bulging neck;

  Since the competitor, Sunshin Sunshinee Sauce Mfg. Industries, not only used recycled Del Monte bottles for its catsup (despite the warning embossed on the bottles: “Del Monte Corporation. Not to be refilled.”) but also used labels which were a “colorable imitation” of Del Monte’s label, we held that there was infringement of Del Monte’s trademark and unfair  competition by Sunshine. Our ruling in Del Monte would not apply to beer which is not usually picked up from a store shelf  by ordered by brand by the beer drinker himself from the storekeeper or waiter in a pub or restaurant.” •

The w words ords “pal “palee pi pilsen lsen”” on SMC’s SMC’s label label are are printe printedd iinn bold and laced letters along a diagonal band, whereas the words “pale pilsen” on ABI’s bottle are half the size and printed in slender block letters on a straight horizontal band;

3.

•

The nname amess of the the man manufa ufactu cturer rerss are are promin prominent ently ly printed on their t heir respective bottles. SAN MIGUEL PALE PILSEN is “Bottled by San Miguel Brewery Philippines,” whereas BEER PALE PILSEN is “Especially brewed and bottled by Asia Brewery Incorporated, Philippines;

4.

On the ba back ck of A ABI’s BI’s bot bottle tle is prin printed ted in big, big, bold bold letter letters, s, under a row of flower buds and leaves, its copyrighted slogan: BEER NA BEER!” Whereas SMC’s bottle carries no slogan;

5.

The back back of the SAN MIGUE MIGUELL PALE PALE PIL PILSE SEN N bot bottle tle carries the SMC logo, whereas the BEER BEER P PALE ALE PILSEN bottle has no logo;

6.

The S SAN AN MIGUE MIGUELL PALE PALE P PILSE ILSEN N bo bottle ttle cap is stamped stamped with a coat of arms and the words “San Miguel Brewery Philippines” encircling the same. The BEER PALE PILSEN bottle cap is stamped with the name name “BEER” in the center, surrounded with the words “Asia Brewery Incorporated Philippine Philippines; s;

7.

Finall Finally, y, there there is a subs substantia tantiall price price differ difference ence between between BEER PALE PILSEN (currently at P4.25 per bottle) and SAN MIGUEL PALE PILSEN (currently at P7.00 per  bottle). One who pays only P4.25 for a bottle of beer  cannot expect to receive San Miguel Pale Pilsen from the storekeeper or bartender.”

The Del Monte case  case  involved catsup, a common household item which is bought off the store shelves by housewives and house help who, if they are illiterate and cannot identify the product by name or brand, would very likely identify the product by mere recollection of its appearance.

In Lim Hoa vs. Director of Patents 100 Phil. 214, 214 , in rel rel.. to Etepha vs. Director, 16 SCRA 495 , the Supreme Court was more telling: “The court differentiated food seasoning product, a kitchen article of daily consumption, from commodities or  articles of relatively great value, such as radio and television sets, air-conditioning units, machinery, etc., where the prospective buyer generally the head of a family or a businessman, before making the purchase, reads the pamphlets and all literature available, describing the article he is planning to buy and perhaps even makes comparisons with similar articles in the market.   He is not likely to be deceived by similarity in the trademarks because he makes a more or less study of the same and may even consult his friends about the relative merit and performance of the article or machinery, as compared to others also for sale.

UNFAIR COMPETITION :  Alhambra Cigar vs. Mojica Mojica March 21, 1914   Unfair competition consists in passing off or attemptin attemptingg to pass off upon the public the goods or business of one person and for the goods or business of another. It consists essentially essentially in the conduct of a trade or business in such a manner that there is either an express or implied representation to that effect. Unfair  competition, as thus defined, is a legal wrong for which the courts afford a remedy. It is a tort and a fraud. The basic principle is that no one has a right to dress up his goods or otherwise represent them in such a manner as to deceive an intending purchaser and induce him to believe he is buying the goods of another. Actual or  probable deception and confusion on the part of customers by reason of defendant’s practices must always appear to be considered as an act of unfair competition.

In the Asia the  Asia Brewery case, case, the Supreme Court deviating from

 

the Del Monte ruling further said: “The ruling not applyand to all kinds of products. In resolving cases of may infringement unfair competition, the courts should take into consideration several factors which would affect its conclusion, to wit: the

person has beenhis actually by that defendant’s lead to purchase goodsdeceived in the belief they are conduct the goodsand of  plaintiff, it is sufficient to show that such deception will be natural and probable result of defendant’s acts. Either actual or probable

Marianne Macayra

In addition to that, it is not necessary to show that any

 

Page  35  of  35  35

deception and confusion must be shown, for if there is no probability of deception there is no unfair competition.

patents, industrial designs; and petitions for  compulsory licensing of patents;

  In this regard, the class of purchasers who buy the particular  kind of article manufactured must be considered in determining the question of probable deception. This includes incautious, unwary or ignorant purchasers, but not purchasers who make no examination. This is because unfair competition is a case-to-case basis. The fact that careful buyers, who scrutinize closely, are not deceived merely shows that the injury is less in degree but not

b.

necessarily mean there no deceived injury. The sameby isthetrue careless purchasers whoisare simply usewith of  ordinary and common forms of putting up goods do not necessarily show unfair competition.

4.

TRIPS [Agreement on the Trade-related aspects of  Intellectual Property Rights] What is included in the term: “Intellectual Property Rights”?  (Sec. 4 RA 8293) ¬

Copyright and related rights;

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Trademarks and Service Marks;

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Geographic Indications (One which identifies a good as originating in a territory of a trips member);

exerc exercise ise origi original nal juris jurisdict diction ion in admi adminis nistrativ trativee complaints for violation of laws involving intellectual property rights: Provided , That   its  jurisdiction is limited to complaints where the total damages claimed are less than P200,000.00: Provided further , that availment availment of the provisi provisional onal remedies may be granted in accordance with the

Rules of Court]; Docum Documentat entation, ion, Infor Informatio mationn aand nd Tech Technolo nology gy Transf Transfer  er  Bureau - Functions Functions:: provide technical, advisory and other services relating to the licensing and promotion of  technology, and carry out an efficient and effective program for technology transfer; register technology transfer arrangement; and settle disputes involving technology transfer payments];

5.

The Manage Managemen mentt Infor Informat mation ion S Sys ystem tem and and EDP EDP Bureau;

6.

The Admin Administr istrativ ative, e, Financ Financial ial and Perso Personnel nnel Serv Service ice Bureau;

PATENT

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Industrial (Any form, composition colors or  any three Designs dimensional whetherof oflines notorassociated with lines or colors and gives a special appearance to and can serve as pattern for an industrial product or  handicraft); ¬

Patents;

¬

Layout – designs (Topographies) (Topographies) of Integrated Circuits;

¬

Protection of undisclosed information [i.e. trade secrets, formula]

INTELLECTUAL PROPERTY OFFICE Functions: •

•

•

To grant patents for inventions;

What is patent?  A  A grant made by the government government to an inv inventor, entor, conveying and securing to him the exclusive right to make use of  his invention for a given period. What are patentable inventions?  Any inventions?  Any technical solution to a problem in any field of human activity which is new, involves an inventive step and is industrially applicable. It may be, or may relate to: a product; or process; or an improvement of any of the foregoing. (Sec. 21) Example: A new and useful machine; a manufactured product or substance; or an improvement of any of  the foregoing. When shall an invention be considered as “new”?  ¬

When it is novel; (Sec 23)

¬

When it does not form part of a prior art.

To register marks, geographic indication, integrated circuits; technology transfer arrangements;

Prior art  shall   shall consist of: everything which has been made available to the public anywhere in the world, before the filing date of the t he application claiming inventi invention, on, which means that the “invention” is: (a) already known; known; (b) publicly (b)  publicly used ; or (c) already patented or described ;

To administratively adjudicate contested proceedings affecting IPR;

Structure: The IPO is headed by a director general There are 6 bureaus, each headed by a director: 1.

Burea Bureauu of Pate Patents; nts; (Functions (Functions:: search search and examina examination tion of patent applications and the grant of patents);

2.

Bur Bureau eau of of Tra Tradem demark arks: s: (f (func unctio tion: n: sear search ch and and examination of applications for the registration of marks of ownership and the issuance of the certificate of  registration);

3.

Bu Bure reau au of Le Lega gall A Affa ffair irss - Functions Functions:: a. hear hear and de deci cide de oppos oppositi ition on to th thee appli applicat cation ion for  for  registration of marks; cancellation of trademarks,

Marianne Macayra

When an invention is considered useful?  When it is capable performing some beneficial function. NON-PATENTABLE INVENTIONS: ¬

¬

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Discoveries, scientific theories and mathematical methods; Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for  computer; Methods treatment the human or animal body on by surgery orfortherapy and ofdiagnostic methods practiced human or animal body;

 

 36 Page  36  of  36

Plant varieties or animal breeds or essentially biological process for the production of plants and animals except: micro-organisms and non-biological and micro-biological processes;

 A violation of the right which is secured to the inventor by the patent law (IPC) constitutes an infringement. It consists in the making, using, selling of the patented process or instrumentality by any person without authorization on the part of the patentee.

¬

 Aesthetic creations; creations; or 

¬

 Anything contrary contrary to public orde orderr or morality.

TEST :  In order to constitute infringement there must be SUBSTANTIAL IDENTITY (not exact identity) between the two devices.

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Who has a RIGHT to a patent?  ü

The right to a patent belongs to the inventor, his heirs or  assigns;

ü

When two (2) or more persons have jointly made an invention, the right to a patent shall belong to them jointly. (co-ownership)

ü

If two or more persons have made the invention separately and independently of each other, the right to the patent shall belong to the person who filed an application for such invention;

ü

Where two or more applications are filed for the same inventions, to the applicant who has the earliest filing date or the earliest priority date.

ü

The person who commissions the work shall own the patent, unless otherwise provided in the contract;

ü

In the case the employee made the invention in the course of his employment contract, the patent shall belong to : •

•

  They are identical identical:: When they perform substantially the same function (or mode or principle) in substantially the same way to obtain the same result, even if they differ in name, form, shape or dimensions dimensions.. (Doctrine of equivalents) NO INFRINGEMENT: ¬

¬

¬

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RIGHT OF PRIORITY   An application for patent filed by any person who has previously applied for the same invention in another country, which by treaty, convention, or law affords similar privileges to Filipino citizens, shall be considered as filed as of the date of the filing the foreign applicat application: ion: Provided, That :

When a single element in the original device is left out in the new device. When the making or using of a patented invention is not conducted for profit and solely for the purpose of research or experiment or for f or instruction. Preparation of a medicine for individual cases in a pharmacy or by a medical professional in accordance with a medical prescription.

¬

The employee, if the inventive activity is not a part of  his regular duties even if the employee uses the time, facilities and materials of the employer; The employer, if the invention is the result of the performance of his regularly assigned duties, unless there is an agreement to the contrary

When the original machine is improved by the use of  different form or combination although performing the same functions.

¬

¬

When used in any foreign ship or vessel, aircraft or land vehicle for its exclusive needs (not for purposes of  manufacture or sale) entering the Philippines temporarily or  accidentally;  Any prior user who in good faith was using the invention in his business or enterprise prior to the filing or priority date of  the application on which a patent is granted. Use by the government or third persons authorized by the government when : a.

Requir Required ed by pub public lic intere interest. st. (i.e.: (i.e.: na nationa tionall sec securi urity; ty; nutrition; health; development of other sectors); or 

b.

It is determ determined ined by an aadminis dministrativ trativee oorr judicia judiciall bo body dy that the exploitation by the owner of the patent is anticompetitive.

a.

The loca locall appli applicati cation on expres expressly sly cla claims ims prio priority; rity;

b.

It is fifile ledd wit within hin 12 12 mon months ths from from the the dat datee of copy copy of the the foreign application was filed;

Note: The burden of proof to show infringement of a patent is on Note: the party who asserts such infringements.

c.

A ce certifie rtifiedd copy copy of the the for foreign eign applica application tion together together with with an English translation is filed w/in 6 months from the date of filing in the Philippines.

Defenses:: Defenses

Term of Patent: 20 years from the filing date of the application. application. RIGHT OF PATENTEE:   A patentee shall have the exclusi exclusive ve right to make; use and sell the patented machine, article or product, and to use the patented process for the purpose of industry or commerce, thruout the Philippines for the duration of the patent. INFRINGEMENT OF PATENT:

Marianne Macayra

a.

The The pat paten entt is is inv inval alid id;;

b.

The iinv nvent ention ion is nnot ot new new aand nd pa paten tentab table; le;

c.

The paten patentt doe doess no nott disclo disclose se the inven invention tion in a ma manner  nner  sufficiently clear and complete for it to be carried out by person skilled in the art;

d.

The ppatent atent is contra contrary ry to pu public blic order or moral morality. ity.

Remedies: Civil action for damages plus injunction.

 

Page  37  of  37  37

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.

Note:: Note •

•

Essential requisites: a.

The rredu educti ction on in in the pat patrim rimony ony of the the donor; donor;

b.

The iincr ncreas easee in the pat patrim rimony ony of the done donee; e;

c.

The inten intentt to do aann act of libera liberalility ty..

Note:: When a person gets a life insurance and names a third Note person as his beneficiary, and the insurance becomes payable by the death of the insured, insured, there is a donation iinn favor of the beneficiary – not in the sum received by him from the insurer, but in the total amount of premiums that have been paid by the insured. This is the only amount that leaves the patrimony.   If the amount of premiums, however, exceeds the insurance, there is donation only to have extent of the insurance. This is the only amount that is added to the patrimony of the donee. Classification of donations: 1.

Simple Simple  - the cause is pure liberality (no strings attached);

2.

Remuneratory - to reward past services which do not constitute demandable debt (ex: A donation to one who saved the donor’s life). Note: The phrase “they Note: “they do not constitute a demandable debt ” (Art. 726) means that the service which was rendered did not produce an obligation demandable against the donor; or if it had, such obligation has been renounced in favor of the donor. EXAMPLE: A agreed to review B for the bar examinations for a fee of P10,000.00. P10,000.00. Later, B passes passes the bar  examination, and as a gratitude give givess A a parcel of land worth P20,000.00. The remuneratory donation here is only with respect to the excess of P10,000.00 because, the services of A constitute a demandable debt, unless, A in the meantime renounces his fees and in such case , there is donation to the extent of P20,000.00.

3.

Conditional or Modal – Modal – when the donation imposes upon the donee an obligation in favor of the donor himself or a third person or even the public. EXAMPLE: A piece of land is donated to the city in order  that it may be converted into a park or public market.

Form to be followed: ¬

In simple/remuneratory donations - form of donations

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Onerous donations - contracts.

Art. 727. Illegal or impossible conditions in simple and remuneratory donations shall be considered as not imposed.

Marianne Macayra

•

It is supposed to be simple (no strings attached), why is there a need to have a condition, much less, impossible? If the condition is not void, then the donation is not really simple, for it has a burden imposed upon the donee. What is voided here is the impossible condition and not the donation itself.

FACTS: Fernando and Placido Manalo “donated” a parcel of land FACTS: to their niece, Leoncia, on the condition that the latter would shoulder the “funeral expenses” of the former when they die. The donation was done in a private instrument. Is the donation valid? HELD: Yes, the donation is valid because it is an onerous HELD: donation. It is governed by the law on contracts. A private instrument was sufficient. [Manalo [Manalo vs. De Mesa 20 Phil. 496 ]

DONATION INTER-VIVOS Art. 730. Effect of the fulfillment of the suspensive condition beyond the lifetime of the donor. EXAMPLE: “A” donates a piece of land to “B” on the condition that “X”, “A’s” son becomes a lawyer. The fulfillment of the condition even after the death of the donor  does not affect the nature of the donation as inter vivos. The fulfillment retroacts to the time of the donation.

Art. 731. When a person donates something, subject to the resolutory condition of the donor’s survival, there is donation inter-vivos. Note: Fulfillment of a resolutory condition, its effect. EXAMPLE: “A” was about to undergo a delicate operation. He donated to “B” a parcel of land subject to the condition that if “A” survives the operation, “B’s” ownership over the land would terminate, and the same would revert to “A”. But if “A” dies, there t here is donation inter vivos not mortis m ortis causa. When is donation perfected?  Art. 734. The donation is perfected from the moment the donor knows of the acceptance by the donee; donee; Art. 746. Acceptance must be made during the lifetime of the donor and the donee. Who may donate?  Art. 735. All persons who may contract and dispose of their  property may make a donation. Art.737. The donor’s capacity shall be determined as of the time of the making of the donation. REMINDER: The phrase “as of the time of the making of the REMINDER: donation” should really mean “as of the time of the perfection of  the donation”. So that, a physically incapacitated person (i.e. unemancipated minors or insane) may still validly donate provided that at the time of his knowledge of the acceptance by the donee, the incapacity is not present. Although, it is submitted

 

 38 Page  38  of  38

that the donation is voidable following the law on contracts which are suppletory to simple donation – as in vitiated consent.   The capacity of the donee is determined at the time of the perfection of the donation (at the time he makes known to the donor his acceptance of the donation). Capacity of the Husband or the Wife: Wife : Husbands or wives may donate their own capital or paraphernal properties without the consent of the other. But with respect to conjugal or community property, they cannot make donations without the consent of the other, except : moderate donations for charity or on occasion of  family rejoicing or family distress, (see : Art. 98 & Art. 125 of the Family Code ); see also Arts. 113-115 of the Family Code.

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Excessive or inofficious donation is not void but merely reducible. Donations cannot cannot co comprehend mprehend future prope property rty (Art. 751 751), ), because the donor cannot give what he does not have, except in cases of contractual succession and donations by reason of  marriage (see : Art. 84, Family Code).

What are the formalities of a donation?  With respect to IMMOVABLE property: property: (See: Art. 749)

May husbands and wives donate to each other?   Art. 87. Family Code – Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to person living together as husband and wife without a valid marriage.

The sufficiency can be determined by the court in accordance with prudence aand nd the eexercise xercise of reasonable reasonable discret discretion. ion.

ü

The donation must be in a PUBLIC DOCUMENT.

ü

The acceptance must also be in a PUBLIC DOCUMENT.

With respect to MOVABLE property: property: ü

The donation must be in writing.

ü

If the value of the thing is P5,000.00 or less : •

Reason: To protect the creditors and the weaker spouse from the dominance of the other. What is moderate is relative. This may be determined based on the financial status of the family. f amily. Capacity of a minor : For purposes of marriage, a person may contract marriage at the age of 18 years. But may he enter into a marriage settlement wherein he may dispose of his future property in favor of his prospective spouse without the intervention of the parents?  Art. 78. (in relation to Art. 234 and 236 of the Family Family Code) which requires that the parents are required to be made parties to the marriage settlements was impliedly repealed by RA 6809, wherein marriage settle settlements ments may now be ente entered red by the child personally even without the intervention of the parents.

•

ü

See: Arts. 739 and 740 a.

Those made between persons who are guilty of adultery or concubinage at the time of time of the donation; donation; Notes:: Notes •

•

What may be donated?  Art. 750. The donation may comprehend all present property of the donor, or part thereof thereof,, provided he reserves in full ownership or in usufruct, sufficient means for the support of  himself, and all of 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 on petition of any person affected.

•

•

•

REMINDER: The donation may comprehend all present property, meaning that which the donor can dispose of at t he time of the donation but in all instances, the donor cannot give more than what he can give by will (meaning, a person cannot receive more than what the giver can give by virtue of a will). Otherwise, the donation is considered inofficious.

Marianne Macayra

may be in writing; In both instances (where the donation is either oral or  written), the acceptance may be made orally (express or implied) or in writing;

SPECIAL DISQUALIFICATI DISQUALIFICATION ON

Read also: Donations by reason of marriage – Arts. 82 – 87, Family Code.

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may be oral but simultaneous delivery of the thing and the document representing the right donated is required;

b.

This refers to donations between paramours. There is no necessity of proving the guilt in a criminal proceedings, it is enough that the guilt may be proven by a preponderance of evidence in a civil action for the declaration of nullity of the donation. The commission of the adultery or concubinage must be at the time of the donation and not after. When the purpose of the donation is to initiate, continue, resume or compensate the illicit relations between the paramours, the donation is void. But if the intention i ntention is to indemnify the damaged caused to the other at the time of separation, the donation is valid.

Those made between persons found guilty of the same offense,, in consi offense consideration deration thereof; Note:: Note •

If a person agrees to kill another in consideration of a donation to be made in his favor, the donation is void.

 

Page  39  of  39  39 •

•

c.

b.

Here, since the consideration is illegal, the donation, must necessarily be void; There must be a conviction. conviction.

•

Those made to a public officer or his spouse, descendants or ascendants by reason of reason of his office. office. Note:: Note •

•

The purpose for the rule is to prevent bribery;

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 by the happening of any of these events:

The donation is void by reason of public policy.

a.

The priest  who heard the confession of the donor  during his last illness, or 

b.

The m minis inister ter of the gosp gospel el who ext extende endedd spiritu spiritual al aid aid to him during the same period; The rrelati elatives ves of ssuch uch priest priest or minister minister of the the gospe gospell within the 4th civil degree, the church the order, chapter, community, organization, or institution to which such priest or minister belongs;

d.

The gua guardi rdian an w with ith respec respectt to donatio donations ns made made by the the 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 donation made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid;

e.

Any pphhysici ician  surgeon, nurse, health officer, or  druggist who took care of the donor during his last illness;

f.

Indiv Individua iduals, ls, ass associ ociati ations ons and corp corpora oratio tions ns permitted by law to receive donations.

not not

Note:: The incapacity to inherit by reason of unworthiness Note

  A donation made to a person who falls under the provisions of said article would be valid, because a testamentary provision made in favor of such person after the testator has knowledge of  the act of unworthiness would constitute pardon under Art. 1033.   On the other hand, if the donation has already been made when the cause of unworthiness occurs, the donation is revoked   only by the causes mentioned in Arts. 760, 764 and revoked 765. RULES IN CASES OF DOUBLE DONATIONS:  Apply the rule on double double sales, sales, Art. 1544, NCC; a.

Mova Movable ble proper property ty - the owners ownership hip shall shall bbee transf transferred erred to the donee who have first taken possession thereof in good faith.

Marianne Macayra

a.

If the donor donor,, afte afterr the dona donation tion,, sho should uld have legit legitimat imatee or legitimated children, even though they be posthumous; BIRTH

b.

If the child of the the ddonor onor whom the latte latterr be belie lieved ved to be dead when he made the donation, should turn out to t o be living; REAPPEARA REAPPEARANCE NCE

c.

If the ddono onorr sho should uld ssubs ubsequ equent ently ly ad adopt opt a m mino inorr chi child. ld.  ADOPTION

Note:: Note ¬

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¬

¬

provided in Art. 1032 is not included within the scope of the above article.

•

If there be no inscription, the ownership shall pertain to the donee who in good faith was the first in the possession. And in the absence thereof, to the donee who presents the oldest title, provided there is good faith.

REVOCATION AND REDUCTION OF DONATIONS

Art. 740. Incapacity to succeed by will shall be applicable to donations inter-vivos. The following persons are disqualified:

c.

Immov Immovable able prope property rty – the owner ownership ship shal shalll be belong long to the donee who first recorded it in the registry of property.

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When the revocation should take effect: The donation is revoked or reduced by the happening of any of the events enumerated in Art. 760. In other words, the revocation or  reduction takes place ipso jure. No action is necessary to revoke or reduce the donation which is already considered by law as revoked. Court action is necessary however, when the donee refuses to return the property. In such case, the decision of the court will be merely declaratory of the revocation – it will not be a revocatory act. Birth, reappearance and adoption as causes for the revocatio revocationn or reduction. The article seeks to protect the presumptive legitimate or the expected legitime of the heir. The value of of the estate to be cons considered idered is at the time of the birth, reappearance or adoption. The action to reduce must be brought within 4 years, see: Art. 763. This action cannot be renounced. The article applies only to donation inter vivos and not to: a. b. c.

donat donations ions propt propter er nnuptia uptiass (w (which hich can be rrevok evoked ed only only for causes enumerated by law); onero onerous us donat donations ions (for (for the these se are real really ly cont contracts racts); ); mortis caus causaa (for (for thi thiss is revocabl revocablee fo forr an anyy or no cause cause at all).

ILLUSTRATION: “X” has no child. At the time he gave the donation of P10,000.00, he had P100,000.00. Therefore after the donation, he had P90,000.00 left. Later, he adopted a minor  child. At the same time he made the adoption he had only P5,000.00 left. Should the donation be reduced? If so, how much?

 

 40 Page  40  of  40

Note: The value of the estate to be considered is at the time of  Note: birth, reappearance or adoption. Donation

= P10,000.00

Property left at the time of of adoption = P 5,000.00   P15,000.00 Legitime = P15,000 P15,000.00 .00 x ½ = P 7,500.00 Since the value of the estate is only P5,000.00, the donation must be reduced by P2,500.00. See: Cruz vs. CA, 140 SCRA 245  Art. 764. A donation may also be revoked at the instance of  th thee donor donor when when the do done neee fa fails ils to co compl mplyy wi with th an anyy of th thee conditions which the former imposed upon the latter. Exception: When the condition is immoral, illegal or impossible.

Art. 769. Prescriptive period for revocation by reason of  ingratitude shall be 1 year   to be cou counte nted d from the time the donor had knowledge of the fact and it was possible for him to bring the action. Art. 770. The action for revocation is not transmitted to the heirs of the donor. Reason: Because the grounds for revocatio revocationn are purely personal to the donor. Exceptions: When the action was already instituted but the donor  subsequently died; ¬

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When the donor is killed by the donee;

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The donor died without knowing the act of ingratitude.

Art. 771. Inofficious donations:

Notes:: Notes ¬

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Effect of non-fulfillment – the donor has the choice of  enforcing the condition by action for specific performance. The donee having bound himself to carry out the condition imposed by accepting the donation, may be compelled with what has been stipulated.  A action is necessary if the donee refuses to return thecourt property

Art. 765. The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases: a.

If the donee should commit some offense  offense  against the person, the honor, or the property of the donor or of  his wife or children under his parental authority; Note:: Note •

•

Offense does not mean a criminal offense; it may also include non-criminal offenses. No criminal conviction is necessary, and proof of the offense by mere preponderance of evidence in a suit for revocation is sufficient.

b.

If the donee imputes to the donor any criminal offense,, or any act involving moral turpitude, even offense though he he should prove it, it, unless the crime crime of the act has been committed against the donee himsel himself,f, his wife or children under his authority;

c.

If he unduly refuses him support when support when the donee is legally or morally bound to give support to the donor. Notes:: Notes •

•

•

There is legal or moral ground; The refusal to support must be “undue” or  “unjustified” It is understood that the support given periodically should not excee exceedd the value value of the thing thing donated. donated. The moment this amount is reached, the duty to support also ends.

Marianne Macayra

a.

The vvalu aluee of th thee est estate ate iiss the vvalu aluee at th thee tim timee of th thee donor’s death.

b.

Net E Esta state te + prope property rty lleft eft at th thee tim timee of dea death th mi minus nus debts and charges plus value of donations.

c.

The dona donation tion may be cons considere ideredd ino inoffici fficious ous,, onl onlyy in in so far as it may affect the legitime of the heirs;

d.

Sinc Sincee the the in inoffic officious iousness ness of the the do donatio nationn ca cannot nnot be determined till after the donor’s death, it follows that in the meantime, the donation is valid and ownership is transmitted to the donee during the donor’s lifetime.

Prescriptive period: period: The action to reduce or revoke may be brought within a period of 5 years from the time of the donor’s death. See: Art. 1149, NCC Who may bring action to reduce?  •

Compulsory heirs of the donor;

•

Heirs and successor successors-in-interests s-in-interests of the compulsory heirs heirs..