Property (Paras Summarized)

PROPERTY REVIEWER Civil Code of the Philippines Paras, Book II, Articles 414 to 693 PROPERTY (subject or course) – classifies or defines the different kinds of appropriable objects, provides for their acquisition, and loss, and in general, treats of the nature and consequence of such real rights. Classification of THINGS • Res nullius – belonging to no one • Res communes – to everyone • Res alicujus – to someone Classification of Property • Movable, immovable • Public, private dominion • Within, outside the commerce of man • Present, future property • Tangible or corporeal, intangible or incorporeal • Principal, accessory • Fungible, non-fungible • Generic, specific • In custodia legis, free property Characteristics of Property 1. Utility for the satisfaction of moral or economic wants 2. Susceptibility of appropriation 3. Individuality or substantivity ARTICLE 414 • Importance of classification to immovable and movable – the fact that different provisions of the law govern the acquisition, possession, disposition, loss, and registration of immovables and movables • Human body – neither personal nor real ARTICLE 415 - Immovables • Definition – the etymological meaning should yield to the legal or juridical significance attached to the term by the law Academic Classification of REAL PROPERTIES 1. By nature 2. By classification 3. By destination or purpose 4. By analogy • • •

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Buildings – there should be intent of permanent annexation (immovable property) No distinction whether built on own land or not Materials and/or dismantled house – personal property House built on rented land may be mortgaged:  Chattel – provided parties agree and no innocent third party is prejudiced  Real Estate Mortgage – should be preferred if made subsequent to chattel mortgage Buildings subject to chattel mortgage cannot be sold extra – judicially (under 3135, refers to real mortgage only) No legal compulsion to register buildings that do not belong to owners land – NO registry in this jurisdiction of building apart from land. Buildings sold or mortgaged to be immediately demolished – personal property, true object of the contract is the materials REGISTRY OF PROPERTY – ministerial duty, should register as long as proper fee has been paid. He has no judicial or quasi-judicial power to determine the nature of the document. Constructions of all kinds –attachment must be more or less permanent Wooden scaffoldings of painters – personal property Detached or uprooted trees – personal property, except timer in timberland Real property (incorporeal thing) – injury or breakage or deterioration in case of separation must be SUBSTANTIAL

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Everything attached to an immovable (par.3) – when incorporation ceases or when it is detached it is considered as personal property Par.4 (statues, reliefs, paintings) – should have intent to attach permanently Par.5 (machinery) – 1. Should be placed by the owner of the tenement 2. Industry or works must be carried on in a building 3. Directly meet the needs of the industry or work 4. Machines must be essential and principal elements in the industry, and not merely incidental • Effect of separation (par.5) 1. If no longer used in the industry – chattel 2. Temporary separation but still needed in the industry – real property • Machinery placed by tenant – personal • Tenant promised to give the machinery – real to the owner • Tenant acted as agent of owner – real • Cannot be real property if placed by person having TEMPORARY RIGHT only • Electric poles/towers – personal properties, because it does not fall in par.1,3, & 5. • Par.6 1. Animals inside – real property 2. Same with animals temporarily outside but with intent to return Par.7 – Fertilizers should be actually used in land Par.8 – mines, slag dumps, etc Par.9 – floating house vs. vessel Par.10 – pertaining to “rights” – real property by analogy

ARTICLE 416 - Movables • Growing crops – personal property for purposes of chattel mortgage law and attachment • Test of what may be stole – it is of value and may be appropriated by a person other than the owner • TEST: whether movable or immovable 1. Property is capable of being carried from place to place (Test by DESCRIPTION) 2. Change in location can be made without injuring real property to which it is attached 3. Object is not enumerated in ART 415 (Test by EXCLUSION) • Test by EXCLUSION is superior to the test by description. • Patent, copyright, right to invention – personal property ARTICLE 417 • Obligations and actions over movables and demandable sums • Shares of stocks • If object is illegal – not considered demandable so no right exists • If the only property of a corporation is real property – shares of stock is still personal property • MONEY, whether legal tender or merchandise – personal property ARTICLE 418 • Consumable – by nature, cannot be used without being consumed • Non-consumable – any other property • •

Fungible – if agreed that the equivalent be returned Non-fungible – identical thing be returned

ARTICLE 419 – Public dominion or private ownership • Public capacity • Private capacity ARTICLE 420 • Public Dominion – ownership by the State, it has control and administration • OR ownership by the public in general Three Kinds: 1. Public use – may be used by anybody 2. Public service – may be used only by duly authorized persons 3. Development of national wealth – e.g. natural resources •

Canals constructed by the State – Public Domain

• Canals constructed by private persons – private Characteristics of Properties of Public Dominion: 1. Outside the commerce of man 2. Cannot be acquired by prescription 3. Cannot be registered or subject of a Torrens title 4. Cannot be levied upon by execution, nor can they be attached 5. Generally, they can be used by everybody 6. Either real or personal property • • • • • • • • • • • •

Registration of properties of Public domain does not confer ownership Inclusion in title does not confer title Forest lands cannot be registered Right of public character cannot be transferred except through succession Allowing the use of canals by others – the owner losses the exclusive right to use the same Agricultural land may be acquired by private persons Forest and mining lands may not be transferred but may be leased Public agricultural lands – alienable portions NOT classified as forest or mineral lands, may be acquired, if made available becoming patrimonial properties Proper licensee owns forest products obtained by other entities Classification and re-classification of Public lands – prerogative of the executive department Government lands – includes public and patrimonial lands Public Land Act:  Land is alienable public land  Open, continuous, adverse possession

ARTICLE 421 • Patrimonial property – not devoted to public use, public service, or development of national wealth. • Owned by the State in its private capacity. Examples: 1. Friar lands 2. San Lazaro Estate 3. Lands obtained in escheat proceedings 4. Municipal owned waterworks system •

Patrimonial properties may be acquired through prescription

ARTICLE 422 • When not devoted to public use, public service or development of national wealth – patrimonial property • Executive and legislative – authority to make SUCH declaration ARTICLE 423 For POLITICAL SUBDIVISIONS: 1. Public use 2. Patrimonial property • • •

A municipality is a juridical person capable of acquiring properties National Government – Central Government Government of the Philippines - totality

ARTICLE 424 • Properties of political subdivisions for Public service – patrimonial • Patrimonial property – not ordinary private property, acquisition should NOT impair certain governmental activities • Properties that came from the State – the Government controls the disposition of properties of political subdivisions • Absence of proof that political subdivisions acquired the properties with their own funds – presume that it came from the State Types of Properties of Political Subdivisions: 1. Acquired through their own funds 2. Those subject to the control and supervision of the State – held in trust by the State to them •

Properties for PUBLIC USE may not be leased – reimburse the rents if NO benefit was gained by lessee

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Properties of patrimonial in nature may be levied upon or attached

ARTICLE 425 • Private properties – may be owned individually or collectively • Possession since time immemorial – presumption that it never been part of public domain • Error in Torrens title which includes government properties – may only be questioned by the government • Payment of land tax is not an evidence of ownership if there is a Torrens title • Acquisition of land by aliens – prohibited (absolute) ARTICLE 426 • Furnitures • The article enumerates things not included in the term Furnitures • Money, credit, securities, stocks, jewelry, etc. OWNERSHIP ARTICLE 427 OWNERSHIP – independent and general right of a person to control a thing particularly in his possession, enjoyment, disposition, and recovery, subject to NO restriction except: 1. Those imposed by State 2. By private persons 3. And without prejudice to the provisions of the law •

Leasehold relation is Not extinguished by the alienation or transfer of legal possession of the landholding

Kinds of Ownership • Full ownership – includes all rights • Naked ownership – Full ownership minus usufruct • Sole-ownership • Co-ownership ARTICLE 428 Rights of Owner: 1. Enjoy 2. Dispose 3. Recover • • • • • • • •

Right to possess – right to hold a thing or enjoy a right Right to use – includes the right to exclude any person from the enjoyment and disposal thereof Right to fruits- natural, industrial and civil Right to abuse – consume Right to dispose – donate, sell, pledge, mortgage  Seller need Not be the owner upon perfection of sale, but should be the owner at the time of delivery Right to recover – right to action against holder and possessor of the thing  As Transferrable to heirs and assignees Right of Ownership is NOT absolute  Welfare of the people is the supreme law  Use of property should Not impair the rights of others Limitations by the State:  Police power  Eminent domain  Taxation

Actions to RECOVER: 1. REPLEVIN - personal property a. Coupled with a writ of replevin b. Must show in his affidavit or of another person that the applicant is the owner c. Allege the cause of detention d. That it is NOT in custodia legis e. State the market value of the property f. Give a bond double the value of the property

• The court then orders the sheriff to take custody of the property For re-delivery: • Within 5 days a. Post counterbond double the value of the property b. Serve the plaintiff with the copy thereof • To avail remedy of intervention of third party – action of property is necessary • Writ of replevin cannot be directed against a lawful possessor • Replevin will not lie in properties in custodia legis

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FORCIBLE ENTRY – deprived of possession through: F – Force I – Intimidation S – Stealth T – Threat S – Strategy • An action to recover physical or material possession • Prescription – 1 year • Allegation of “unlawful possession” - sufficient • One in possession of public land may file an action for forcible entry • Actual condition of the title to property and ownership is NOT material • Court of First Instance (RTC) has concurrent jurisdiction if possession cannot be determined unless the issue of ownership is resolved

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UNLAWFUL DETAINER – unlawful withholding after expiration or termination of right to hold possession • Squatter – should vacate upon demand, proper remedy is unlawful detainer • Issue is physical or material possession • Subsequent acquisition – will not bar the execution of judgment • If issue on title or ownership is in question – action should be dismissed for lack of jurisdiction. Unless in case of appeal, parties agree that RTC will hear the case in its jurisdiction • Prescription - 1 year, upon receipt of last demand to vacate • Squatter – settles without awful authority 1. One who settles in public land 2. Unlawful settler in private land • Prescription – after ONE year upon termination of contract • Demand to vacate should be absolute and NOT conditional • Action be brought after 5 days (building) or 15 days (land) after demand to vacate, unless accion publiciana is instituted • Paying less rentals than stipulated – there is illegal possession • Ownership of an alien is NOT a defense – ownership is immaterial in the action • Unlawful detainer – possession was lawful in the beginning but became unlawful afterwards • Both Forcible Entry and Unlawful Detainer – actions in personam or quasi-in rem • After 1 year prescribes – remedy is accion publiciana • Guests, friends, and relatives – are privies to an action against a tenant • A new tenant may file the action after termination of contract of the old tenant • Lease “month-to-month” basis may be ejected • Demand to vacate is essential – tenant retains possession • Not essential – buyer, seller or any other person retains possession • Writ of execution and demolition may be issued – if judgment in ejectment case is final • If decision is in favor of plaintiff – immediate execution, unless: 1. Appeal has been perfected 2. Defendant files sufficient bond 3. Defendant pay rents, damages and costs • Supersedeas bond – for BACK RENTALS only, defendant should still pay periodic deposits • If decision is in favor of defendant – he shall continue possession (no execution) • Mortgagee – cannot intervene in ejectment case involving possession only

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ACCION PUBLICIANA – recovery of the better right to possess • Plenary action in ordinary civil proceeding • Prescription – 10 years • Issue is possession de jure

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No automatic suspension if government wish to expropriate the property (distinguished from forcible entry and unlawful detainer) Kinds of Accion Publiciana: a. Deprivation not caused by FISTS b. Action for forcible entry or unlawful detainer which has prescribed (more than 1 year) • • •

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RTC has jurisdiction If the action of forcible entry or unlawful detainer is decided upon- cannot institute accion publiciana Accion pauliana – action to rescind contracts in fraud of creditors

ACCION REIVINDICATORIA – recover ownership over real property • RTC has jurisdiction • Title proceedings over public land – Bureau of Lands  if pending, RTC should dismiss for lack of course of action • Prescribes in 10 or 30 years • 10 years – good faith and just title • 30 years – does not require good faith or just title • Recovery of title or possession of real estate – does NOT lapse by death • Action in personam – binding upon parties and privies thereto • Decree of registration is not open to review or attack after lapse of one year – but reconveyance is still available if it has not yet passed to an innocent purchaser • If already passed to an innocent purchaser – action is for damages only • Both reivindication and detainer may be filed over the same land because it involves different issues • Judgment is not binding against strangers. Even if declared owner, ejectment case should still be instituted against strangers in possession. • Question of title may be raised any time even if the cause of action should constitute acts of ejectment (no need to wait for lapse of 1 year) • Squatter – lack of cause of action for reconveyance • Implied trust – reconveyance prescribes in 10 years • Fraud – 4 years after discovery of fraud • Declaration of ownership may include possession – if there are NO rights to be defined with respect to the possessor  If there is, owner should file a motion for execution of right to possess • Accion reivindicatoria does not exist if deprived by virtue of law

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Writ of Injunction • Not allowed when not in possession • Possessor – presumed to have a better right Injunction, remedy for the following: a. May present a motion after 10 days of institution of Forcible entry – court shall decide in 30 days b. During appeal of unlawful detainer – 10 days after perfection of appeal c. Owner, still in possession, to prevent repeated intrusion d. Continued usurpation thru FISTS e. Possession de jure for over a year even though NOT the owner • 7.

Decision denying injunction does NOT bar suit in ejectment

Writ of Possession • Successful registrant under the Torrens System be put in possession • May be used by the rightful owner and not against him • Implies delivery of possession • Writ of demolition may also be issued • DOES NOT prescribe (laches will not lie) • May only be issued once • Possessors after registration - remedy is accion interdictal and NOT possession

ARTICLE 429 • Right to exclude any person from the enjoyment and disposal thereof

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May use force as may be reasonably necessary to prevent actual or threatened invasion or usurpation

ARTICLE 430 • Owner may build walls, ditches, etc. – but without detriment to servitudes constituted thereon ARTICLE 431 • Use should NOT injure rights of third persons • Fundamental basis of police power ARTICLE 432 • “state of necessity” Requisites: 1. Evil sought to be avoided actually exists 2. Injury feared is GREATER 3. No other practical and less harmful means to prevent it ARTICLE 433 • Disputable presumption of ownership Requisites 1. Actual possession 2. Claim of ownership • •

Possessor in the concept of owner – presumption that he has just title True owner has to resort to judicial process to prevent disturbance of peace

ARTICLE 434 Requisites of action to recover: 1. Property must be identified 2. Reliance on the title of plaintiff and not on the weakness of the defendant’s claim • •

Definite description If both claims are WEAK – presumption of ownership is in the possessor

ARTICLE 435 EMINENT DOMAIN: 1. Taking by competent authority 2. Observance of due process 3. Taking for public use 4. Payment of just compensation • • • • • • • • • • • • • • • • • • • •

Public use – determination does NOT depend on the character of the entity or agency Congress – may authorize to devote land in public use to another City is Not authorized – mere general authority is vested Just compensation – fair and full equivalent value of the loss sustained JC = MV +(CD - CB) New concept of just compensation – based on “social value” Determination of JC – judicial function Interest should be 6% per annum Basis of JC:  Time of the taking  Institution of action (whichever is earlier) Not only reasonable amount (JC) but also reasonable time JC = should not be higher than what the owner demands Sentimental value – is NOT considered in JC Consequential Benefits (CB) – should be actual and appreciable Expropriator is liable for the tenant’s eviction The claim for compensation may prescribe If Government does NOT pay – action may be brought against the Auditor General Ownership is transferred only after payment of just compensation with proper interest If Expropriation grants full ownership – does not revert to original owner when property is no longer for public use If grant is conditional – it will revert Mere notice of expropriation, mere notice of condemnation proceedings – owner may still sell the land; except when government is in actual possession

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Small land – extraordinary expropriation not allowed If sale is agreed – no need for expropriation Expropriation may impair contracts except when the Government is a party to the contract Government entered a lease to own contract – cannot institute expropriation, but enforcement of contract if owner refuses to sell Expropriation presupposes ownership – cannot question ownership of owner while at the same time institute expropriation proceedings Provisional value should be deposited – to possess property Urban Land Reform – first refusal to tenants residing for 10 years in leased land within ULR except apartment dwellers

ARTICLE 436 • Seizure through police power – no compensation • Nuisance can be abated • Public, private nuisance • Nuisance per se, per accidens ARTICLE 437 • Owner of land – owner of its surface and everything under it • He may construct any works without detriment to servitudes and subject to special laws and ordinances • He cannot complain to reasonable requirements of aerial navigation Ownership is subject to: 1. Servitudes and easements 2. Special laws 3. Ordinances 4. Reasonable requirements of aerial navigation 5. Prevent injury to rights of third persons (principle of human relations) • •

Restricted by reasonable requirements of underground shelter Mines discovered underneath private land – public domain by virtue of Regalian Doctrine (Mining Law)

ARTICLE 438 • Discovery in property of owner = 100% to owner • Land of another by chance = 50-50, owner and finder • If finder is trespasser = no share • If land owner is married – conjugal • If interest to science and arts – State may acquire paying just price • Usufructuary is a stranger = no share • Usufructuary is the finder = 50% • Laborers employed to find treasure – no share but will be paid wages • Contract may stipulate actual share of finders in treasure hunt ARTICLE 439 Hidden Treasure: 1. Hidden and unknown deposit 2. Consists of money, jewelry, and other precious objects 3. Lawful ownership does not appear • •

If deliberately hidden by owner – NOT “hidden treasure” if he can prove ownership Death of owner of treasure – will go to the heirs ACCESSION

ARTICLE 440 • Accession – right of the owner to everything which is: 1. Produced thereby 2. Which is incorporated or attached thereto a. Natural b. Artificial MODES of Acquiring Ownership O – Occupation L – Law

D – Donation T – Tradition I – Intellectual creation P – Prescription S - Succession ARTICLE 441 ARTICLE 442 Natural Fruits • Spontaneous products of the soil • The young • Other products of animals • Real property Industrial Fruits • Produced by lands through cultivation or labor • Real property Civil Fruits • Rents • Price of leases of land and property • Amount of perpetual or life annuities • Other similar income • Personal property *** • Young – no distinction, if either brought by scientific means or not, natural fruit  If leased onerously – owned by lessee  If commodatum – owned by owner ARTICLE 443 If good faith – possessor owns the fruits If possessor is in bad faith –  If fruits already gathered – owner should pay for production, gathering, preservation if he claims the fruits  If still attached – apply Art. 449 ARTICLE 444 • Annual and perennial crops – natural fruits • Civil fruits accrue daily and can be pro-rated ARTICLE 445 • Exception: Art 120, Family Code – owner is one with greater value in share (either conjugal or paraphernal) ARTICLE 446 • Presumption as to improvements – owned by landowner and made at his expense ARTICLE 447 – 456 Good faith / Bad faith Indemnity: 1. Payment of necessary expenses 2. useful expenses 3. Luxurious expenses Landowner Article 447 Good faith (Landowner)

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Pay the value of materials

Owner of materials •

Right to remove without injury to the work constructed

Builder / Planter / Sower

Bad faith (Landowner)

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Article 448

• Choice = landowner, because of the principle of accession • May appropriate as his own after payment of proper indemnity • No right of removal unless builder fails to pay upon choice of compulsory sale • If the landowner did not choose to appropriate and the price of land is considerable more than that of the buildings or trees – pay REASONABLE RENT, terms fixed by parties, in case of disagreement, the courts shall fix the term of the lease.

Good faith (Both Landowner and Builder/Planter/Sow er)

Pay the value of materials plus damages

Landowner Article 449 Bad faith (Builder/Planter/Sow er)

Article 450 – 451

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Absolute right to remove, plus right to be indemnified for damages • Measure of damages: 1. Value of the loss suffered 2. Profits failed to realize • “Earlier right” or “older right” •

If builder fails to pay: 1. May demand reasonable rent 2. Demolish the house 3. Sell the property at public auction (ordinary money debt)

Owner of materials

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May demand demolition at the expense of the builder, planter or sower plus damages • Get the house without indemnity plus damages • May compel the builder, planter to pay the price of land, and sower, proper rent plus damages

Article 452

Article 453 Article 454 Bad faith (Landowner)

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If both are bad faith = GOOD FAITH Pay the value of the materials plus damages

Article 455 Bad faith (Owner of the materials) Good faith (Owner of the materials)

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Subsidiarily liable in case of insolvency of the builder, and if he makes use of the materials

May pay the price of land, provided that value of the land is NOT considerably more than that of the building or trees

• Losses all rights to be indemnified. He can even be liable for consequential damages • Entitled to reimbursement

Builder / Planter / Sower •

Losses what is built, planted, or sowed without right to indemnity

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Entitled to reimbursement for the necessary expenses for the preservation of the land

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Absolute right to remove plus right to be indemnified for damages

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Principally liable for reimbursement

He does NOT make use of the materials if: • If he compels the builder to purchase the land • Or demolish the construction ARTICLE 457 Accession Natural 1. Alluvium 2. Avulsion 3. Change in the course of rivers 4. Formation of islands • • • • • • • •

Alluvium – gradual change  Rivers only  Soil cannot be identified Accretion on bank of a lake – owned by the owners of the estate Same on islands On sea – public domain Easement – accretion owned by riparian owner Alluvium – NOT protected by registration or Torrens title Registration – needed to protect alluvium from prescription Alluvium – automatic ownership but NOT automatic registration

ARTICLE 458 1. Ponds 2.

Lagoons 

No accretion if: * By natural decrease * Extraordinary floods

This is not alluvium because there is NO alluvial deposit

ARTICLE 459 Avulsion  Known portion of the land transfers to another estate  Considerable quantity of earth  Action of water 1. Sudden or abrupt change 2. Identifiable or verifiable 3. Owned by owner of the land it was detached from •

Removal should be within 2 years

ARTICLE 460 • Trees uprooted – should be claimed in 6 months • If claimed – owner should pay expenses in gathering and putting them in a safe place • After claim of ownership but no actual claim – action to recover will prescribe in 4 years (ordinary prescription) ARTICLE 461 Change in the course of waters  Owned by landowners of land now occupied by the water  Owners of land adjoining the land shall have the right to acquire it. Value shall not exceed the value of area occupied by the new land (are lost). • “In proportion” – if multiple owners • If one owner – the whole thing is owned by landowners of lands now occupied by the new river bed Requisites:

1. 2. 3. 4. 5. •

Change must be sudden to identify old river bed Change is permanent Natural change Definite abandonment of government River must continue to exist If river dries up – public domain

ARTICLE 462 • River (new bed) in private estate – public domain • If the course went back to original bed – land owned by landowners not of public domain (new bed) ARTICLE 463 • River divides into branches • Isolation / Separation – land owned by riparian owner ARTICLE 464 Islands on: 1. Seas 2. Lakes 3. Navigable / floating rivers

owned by the State

ARTICLE 465 Islands formed on non-navigable rivers: • Owner of nearer margin – sole owner • If equidistant – divided longitudinally in half ARTICLE 466 Accession for Movable Property Types: 1. Adjunction 2. Mixture (commixtion or confusion) 3. Specification • Kinds: 1. 2. 3. 4. 5.

Adjunction -two things of different owners join and form a single object Inclusion Soldering Writing Painting Weaving

ARTICLE 467 • Principal • Accessory – been united as ornament or for its use or perfection ARTICLE 468 Principal-Accessory Test 1. That to which the other has been united as an ornament, or for its use, or perfection 2. Greater VALLUE 3. Greater VOLUME 4. Greater MERITS (combined consideration for utility and volume) •

Motor vehicle – engine is principal

ARTICLE 469 • Separation may be demanded – if no injury • If accessory is MORE precious – separation may be demanded even injury is caused to principal ARTICLE 470 • Bad faith (owner of accessory) – losses the thing incorporated • Bad faith (owner of principal) – accessory may choose:  To pay for the value plus damages  Remove the thing even resulting to injury of principal thing plus damages

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Both bad faith – good faith

ARTICLE 471 Material employed without consent of owner: 1. Delivery of thing in equal kind and value 2. Pay the price (according to expert appraisal)  Sentimental value must be considered  Material may be principal or accessory ARTICLE 472 ARTICLE 473 • Mixture – respective identities of the component elements are lost  By chance  Mixture owned in proportion  Not separable without injury to the part belonging Kinds: to him. 1. Commixtion – solid 2. Confusion – liquid • • •

If good faith – co-ownership If bad faith – losses material plus damages If things mixed are of same kind, quantity and quality – divide into equal parts

ARTICLE 474 • Specification – new form to another’s material thru the application of LABOR • Paint for painting – specification (paint of another) • Board, canvass, metal, stone, paper – accessory, therefore it is “Adjunction”. • Worker in GOOD FAITH: 1. Appropriate the new thing 2. Pay for the materials • But if the materials is more valuable than the new thing: 1. Owner of the materials gets the new thing but pays for the work 2. Or demand indemnity for the material • Worker in BAD FAITH: 1. May appropriate as his own without paying labor 2. Or demand indemnity for materials plus damages Adjunction: 1. 2 things 2. Accessory follows principal 3. Things joined retain their nature Mixture: 1. 2 things 2. Co-ownership results 3. Lose their respective nature Specification: 1. 1 thing but form is changes 2. Accessory follows principal 3. New object retains the nature of original object ARTICLE 475 • Sentimental value shall be appreciated ARTICLE 476 – Quieting of Title A cloud exist: 1. Of an instrument 2. Apparently valid or effective 3. But in truth is INVALID, or ineffective 4. And may be prejudicial to the title •

If plaintiff is in possession – quieting of title does not prescribe

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Nature of action – in personam To authorize an action – determination of the part of the defendant to create cloud is not merely speculative

ARTICLE 477 Plaintiff must have: 1. Legal ownership 2. Beneficial ownership ARTICLE 478 Action may be used: 1. When contract has ended 2. Action is barred by extinctive prescription ARTICLE 479 • Plaintiff should return all benefits he received from defendant if he wins ARTICLE 480 • Quieting of title should not be in conflict with the Civil Code ARTICLE 481 • Lex situs Action will not prosper: 1. Boundaries 2. Proper interpretation of contract 3. Plaintiff has no title 4. Action has prescribed 5. Contract is void on its face 6. Mere claim or assertion ARTICLE 482 • Walls in danger of falling – oblige demolition, or may be demolished by administrative authorities at his expense • Complainant: 1. Property adjacent; or 2. Must pass the vicinity ARTICLE 483 --CO-OWNERSHIP ARTICLE 484 • Co-ownership – state where an individual thing or right belongs to two or more persons  Two or more persons having an ideal part of a thing which is not physically divided • There is NO co-ownership when the different portions owned by different people are already concretely determined and identifiable, even if not yet technically described What governs co-ownership: 1. Contracts 2. Special legal provision 3. Provisions of the Title on co-ownership TENANCY IN COMMON • Ideal division • May dispose ideal/undivided share • Co-owner dies – share goes to heir • If co-owner is minor – others will not benefit, prescription will run against other co-owners JOINT TENANCY • NO ideal division • May NOT dispose of share • If co-owner dies - by accretion to other joint tenants • If co-owner is a minor – will benefit other co-owners, prescription will not run Characteristics of co-ownership: 1. More than one subject or owner 2. One physical whole, divided into ideal shares

3. 4. 5. 6.

Must respect each other in the common use, enjoyment or preservation of the physical whole Each co-owner holds almost absolute control of his ideal share NO juridical personality A co-owner is a trustee for the others

ARTICLE 485 • Share in the BENEFITS and CHARGES in proportion to the interest of each • Contrary stipulation is VOID • Proportional share to the accretion or alluvium ARTICLE 486 Right to use: • Interest of the co-ownership must not be injured • Co-owners must not be prevented from using it ARTICLE 487 • A co-owner may defend in court the interest of the co-ownership • Case instituted by one is in behalf of all “Ejectment” includes: 1. forcible entry accion interdictal 2. unlawful detainer 3. accion publiciana 4. accion reivindicatoria 5. quieting of title 6. replevin ARTICLE 488 • May compel others to share the necessary expenses for preservation • Renunciation – instead of reimbursement  His undivided share as may be equivalent to his share of expenses and taxes • Does not necessarily renounce his entire share ARTICLE 489 Consent of… ONE – repairs, ejectment action ALL – alterations, acts of ownership FINANCIAL MAJORITY – all others, useful improvements, luxurious embellishments, administration, better enjoyment • •

Unjustified opposition resulting to damage – be borne by the one who opposed Notification is required if practicable

ARTICLE 490 • Perpendicular co-ownership Proportionate contribution for: 1. main walls 2. party walls 3. roof 4. other things used in common • •

Floor owner bears expenses of his floor Stairs be maintained, Storey by storey, by the users

Condominium Act • Condominium – interest in real property consisting of a separable interest in a unit in a residential, industrial, or commercial building and an undivided interest in common directly or indirectly, in the land on which it is located and in other common areas in the building • Unit – part of a condominium for independent use or ownership

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Project –entire parcel of real property Common areas – entire project except all units separately granted, held or reserved Undivided interest /Common areas – held by the condominium corporation Buyer of a unit acquires ownership after payment in full of purchase price

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All incorporators of a condominium corporation must be an owner of a condo unit

ARTICLE 491 Alteration is a change… 1. Which is more or less permanent 2. Changes the use of the thing 3. Prejudice the condition of the thing or its enjoyment by others Effect of illegal alteration: 1. Co-owner may lose what he spent 2. Demolition may be compelled 3. BUT whatever benefits shall belong to the co-ownership 4. Co-owners will be entitled to proportional share of rent ARTICLE 492 • Lease (one year or less) – act of administration • If more than a year – alteration • Registered lease - alteration ARTICLE 493 • If a co-owner sells the entire common property, the sale is valid only insofar as his share is concerned, unless the sale is consented by the other co-owners. ARTICLE 494 Co-owner may not demand partition: 1. If by agreement for a certain period of time (10 years) 2. Prohibited by donor or testator (20 years) 3. Prohibited by law 4. Physical partition would render the property unserviceable 5. Legal nature does not allow partition •

No prescription in favor of a co-owner if he expressly or impliedly recognizes the co-ownership

ARTICLE 495 • Co-owners cannot demand physical partition of an indivisible object • But co-ownership may still be terminated

ARTICLE 496 Partition: 1. Extrajudicial, Judicial 2. Provisional or Temporary, Permanent 3. Partition of real properly, Partition of personal property 4. Partition in a judicial decree, Partition duly registered in the Registry of Property, Partition in a public instrument, Partition in a private instrument, Oral partition Factors considered in Partition 1. Preference in the partition 2. Comparative value 3. Lots and parcels which will be most advantageous and equitable, having due regard to the improvements, situation, and quality of the different parts of the land

• •

Partition made by commissioners will not be effective until approved by the court Commissioners - 3 competent and disinterested persons will be assigned by the court if the parties cannot agree upon the partition

ARTICLE 497 Rights if creditors with respect to partition: • Creditor X may participate • If he did not participate, he may not impugn a partition already executed unless –  X was defrauded  X previously presented formal opposition to prevent it

ARTICLE 498 Legal Partition • First, give the whole to one co-owner who will now be required to indemnify the rest • If this is not agreed upon, there must be a sale (public auction or private sale) ARTICLE 499 • Third persons’ rights are protected in partition. ARTICLE 500 Effects of Partition: 1. Mutual accounting of benefits received 2. Mutual reimbursement for expenses 3. Indemnity for damages in case of negligence or fraud 4. Reciprocal warranty for: defects of title (eviction) and quality (hidden defects) 5. Co-owner has exclusive possession of the part allotted to him 6. Partition confers upon each the exclusive title over his respective share ARTICLE 501 • Each co-owner is liable, after partition, for the defects of title and quality of the portion How co-ownership is extinguished: 1. Judicial partition 2. Extrajudicial partition 3. By prescription, one co-owner has acquired the property through adverse possession and repudiating the co-ownership of the other 4. Stranger acquires by prescription of the thing owned in common 5. Merger in one co-owner 6. Loss or destruction 7. Expropriation (indemnity will be distributed accordingly) POSSESSION • Holding of a thing or the enjoyment of a right ARTICLE 523 • Right TO possession – incident to ownership • Right OF possession – an independent right, independent of ownership Degrees of Possession 1. Mere holding, without any right 2. Possession with a juridical title, but not that of an owner 3. Possession with a just title, but not from a true owner – Real possessory right 4. Possession with a title of dominium – just title from the true owner Requisites or Elements of Possession 1. Holding or control of the thing or right – may be actual or constructive 2. Deliberate intention to possess (animus possidendi) 3. Possession by virtue of one’s own right • Holding or detention may be actual or constructive • Constructive possession – essential that the property be NOT in the adverse possession of another Classes of Possession 1. One’s own name or another 2. Concept of owner or holder 3. Good faith or bad faith • Ownership is different from possession. A judgment fro ownership does not necessarily include possession as an incident. But where the actual possessor has no valid right over the property, the surrender of possession should be included in the judgment. • Possession is NOT a definite proof of ownership • Possession – sufficient that the petitioner was able to subject the property to the action of his will • Ownership – thing is completely subject to his will in a manner NOT prohibited by law and inconsistent with the rights of others ARTICLE 524 Possession may be exercised: 1. one’s own name 2. name of another Possession in another’s name 1. Voluntary – agent possesses for principal – by virtue of an agreement

2. 3.

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Necessary – mother possesses for unborn child Unauthorized – only if subsequently authorized but without prejudice no negotiorum gestio

Visits to object – does NOT necessarily show possession Ownership of rented land:  Lessor – thru tenant, in the concept of owner  Tenant – concept of holder

ARTICLE 525 Possession in… 1. Concept of owner – whether in good or bad faith, claims to be and acts as if the owner  Possession that may ripen into ownership, also known as adverse possession 2. Concept of a holder – recognizes another to be the owner Examples of Possession in concept of a holder 1. tenant 2. usufructuary 3. depositary 4. bailee in commodatum • Possession is of the property concerned. The possession of the rights are possessed by them in the concept of an owner. ARTICLE 526 • Fraud – cannot be presumed. It must be established by clear and convincing evidence. Good faith • Good faith – one who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it • Good faith is a question of intention. It is intangible and evidenced by external signs. • The belief must be reasonable, not a capricious one. • While the possessor in good faith is one who believes he is the owner, the possessor in the concept of an owner is one who acts as if he is the owner Bad faith • If circumstances exist that require a prudent man to investigate, he will be in bad faith if he does not investigate • Bad faith or malice implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity. It is different from he negative idea of negligence. • Malice or bad faith contemplates a state of mind affirmatively operating with futive design or ill will. It means breach of a known duty thru some motive. Bad faith partakes of the nature of fraud. • Fails to act with the diligence of a prudent man Mistake on a Doubtful or Difficult Question of Law • May be the basis of good faith provided that such ignorance is not gross • Error in the application of the law and the interpretation of a doubtful doctrine can still make the person a possessor in good faith • But mistake or ignorance of a law by itself cannot be the basis of good faith, the law must be one that is doubtful or difficult Bad faith is personal Just because a person is in bad faith does not necessarily mean that his successors-in-interest are also in bad faith. ARTICLE 527 • Presumption is always given because every person should be presumed honest until the contrary is proved • If no evidence is presented proving bad faith, the presumption of good faith remains ARTICLE 528 When Good faith is converted to Bad faith • From the moment the facts exist of knowledge of the flaw • It does not matter whether the facts were cause by him or another When Bad faith begins Existence may begin either from the receipt of judicial summons or even before such time such as a letter from the true owner

DBP vs CA When a contract of sale is void, the possessor is entitled to the fruits during the time the property was held in good faith Good faith ceases when action to recover possession is filed against him and he is served summons therefor ARTICLE 529 Presumptions 1. Good faith 2. Continuity of character of possession – same character in which it was acquired until otherwise proved 3. Non-interruption of possession – transmission of possession of hereditary property 4. Presumption of Just Title – of the possessor in the concept of an owner 5. Non-interruption of possession of property unjustly lost but legally recovered 6. Possession during intervening period 7. Possession of movables with real property 8. Exclusive possession of common property ARTICLE 530 • What may be possessed: only those things which are susceptible of being appropriated • Res Nullius: may be possessed and acquired by occupation but cannot be acquired by prescription. ARTICLE 531 Material occupation Exercise of a right Subjection to our will Proper acts and legal formalities / constructive possession How possession is acquired 1. Material occupation – detention of thing, also includes constitutom possessorium or traditio brevi manu 2. Subjection to our will – includes traditio longa manu and traditio simbolica 3. Constructive possession Essential Requirements 1. corpus – detention of thing 2. animus – intent to possess ARTICLE 532 Acquisition of possession (from the viewpoint of who possesses) 1. personal 2. thru authorized persons 3. unauthorized persons – but should be subsequently ratified

Essential Requisites 1. personal • intent to possess • capacity to possess • object capable of being possessed 2. authorized • intent to possess for principal • authority and capacity to possess • principal has capacity and intent to possess 3. unauthorized • intent to possess for another • capacity of principal to possess • ratification by principal But if the stranger had possessed it in his own name, he has possession and not the principal. ARTICLE 533 • Possession of the deceased should be added to the possession of the heir • Acquisition of possession thru succession mortis causa Time of Acquisition If heir accepts – from the moment of death since there is no interruption

• •

In the computation of time necessary for prescription, the present possessor may complete the period for prescription by tacking his possession to that of his grantor pr predecessor-in-interest. Retroactive effect of the acceptance

If heir refuses or incapacitated to inherit – deemed never to have possessed the same Sale – needs delivery Succession-by the operation of law, direct transmittal of possession ARTICLE 534 • If the father or decedent was in bad faith, it does not necessarily mean that the son was also in bad faith. The son is presumed to be in good faith. However, since the father was in bad faith, the consequences of the good faith of the son should be counted only from the time of the decedent’s death. • 3 years possession in bad faith should be equivalent to 1 year possession in good faith ARTICLE 535 Persons referred 1. unemancipated minors 2. insane 3. prodigal or spendthrift 4. those under civil interdiction 5. deaf-mutes • in general, those laboring under restrictions on capacity to act Nature of Possession • In acquisition of possession, only those matters where they have capacity to act such as physical seizure of res nullius and donation of personal property simultaneously delivered to them • And NOT possession where juridical acts are imperative like the possession of land the ownership of which he desires to test in court, in this case, intervention of the legal representatives or guardians is needed Acquisition by prescription •

May acquire property or rights either personally, or thru parents, guardians, or legal representatives

ARTICLE 536 Possession cannot be acquired: thru force or intimidation – as long as there is a possessor who objects thereto 1. thru mere tolerance – mere inaction or failure to bring an action is NOT tolerance 2. thru clandestine, secret possession – possession without knowledge, or stealth, not open or public. How to recover possession Should not be taken into his own hands. First, should request the usurper to give up the thing. If he refuses, invoke the aid of the competent court. Otherwise, the owner can be made the defendant in a forcible entry case. ARTICLE 537 • Possession by mere tolerance, no matter how long continued, does not start the running of the period of prescription • A squatter’s possession, when there is no violence, is by mere tolerance Clandestine possession • If secret to many, but know to the owner, possession is affected • There is a presumption that when possession is clandestine, it is also unknown to the owner Possession by force or violence • Force may be proved expressly or by implication • The act of entering into the premises and excluding the lawful possessor therefrom necessarily implies the exertion of force over the property • The force may be: 1. actual or merely threatened 2. done by the possessor himself or by his agent 3. done against the owner or any other possessor 4. done to oust the possessor or prevent him from getting back the premises Meaning of acts… do not affect possession 1. No legal possession – the intruder does not acquire any right to possession 2. The legal possessor, even if ousted, is still the possessor and therefore:

3.

• Still entitled to the benefits of prescription • Entitled to the fruits • And still entitled as possessor for all purposes favorable to him The intruder cannot acquire the property by prescription

ARTICLE 538 Title – either a right or the document evidencing the right Applies to preference in possession whether personal or real property • It also applies whether the possession was longer or shorter than one year • Co-possessors of a parcel of land hat is mortgaged must be made parties to the foreclosure proceedings, otherwise they cannot be deprived of possession of that portion of the land actually possessed by them General Rule Regarding Possession as a Fact Possession as a fact cannot be recognized at the same time in two different personalities. Except: • Co-possessors • Possession in different concepts or degrees Rules in case of conflict 1. present possessor 2. if both are present, the one longer in possession 3. if both began possession at the same time, the one who presents a title 4. if both present a title, the Court will decide. Meanwhile, the thing will be judicially deposited. Preference in Ownership or Double Sale Movable – first who possessed in good faith Immovable: 1. first registered in good faith 2. no registration, first possessor in good faith 3. no possession, the one with the oldest title

1. 2. 3.

ARTICLE 539 • An adverse possession of property by another is not an encumbrance in law, and does not contradict the condition that the property be free from encumbrance • Adverse possession is not a lien for a lien signifies a security for a claim Specific Rights • Reasons for protection of possession: 1. it is similar to ownership, and as a matter of fact it modifies ownership 2. gives rise to presumption that the possessor is the owner • Every possessor is protected under Art. 539, whether in the concept of an owner or holder • The doctrine of exhaustion of administrative remedies is not applicable to a party who claims the disputed land as his own private land • A squatter has no possessory right against the owner of the land because his occupancy of the land is merely tolerated by the owner • A writ of execution and order of demolition is not appealable where there is no allegation that it has varied the tenor of the judgment Legal means of restoration to possession • Reasons for legal means: to prevent spoliation or a disregard of public order to prevent deprivation of property without due process of law to prevent a person from taking the law into his own hands • The owner should go to court, and not eject the unlawful possessor by force • A tenant illegally forced out by the owner-landlord may institute an action for forcible entry even if he had not been paying rent regularly • Injunction is generally not the proper remedy to recover possession, particularly when there are conflicting claims of ownership • A final judgment in an unlawful detainer case may be executed even if there is still pending accion reivindicatoria, for two actions can co-exist • A mere trespasser, even if ejected, has no right to institute an action of forcible entry Writ of Preliminary Mandatory Injunction • Injunction cannot substitute for the other, actions to recover possession. This is because in the meantime, the possessor has in his favor, the presumption of rightful possession, till the case is finally decided. Exception: very clear case of usurpation.

Requisites for the Issuance 1. in forcible entry cases in the original court – file within 10 days from the time the complaint is filed 2. in unlawful detainer cases in RTC and CA – file within 10 days from the time the appeal is perfected only if: • lessee’s appeal is frivolous or dilatory • lessee’s appeal is prima facie meritorious • even if the forcible entry is filed eleven months from entry, the remedy may still be availed of. Note: prescription of forcible entry is 1 year • The writ of preliminary injunction cannot be granted without notice and hearing ARTICLE 540 Possession in the concept of owner • Possessor in concept of an owner may eventually become the owner by prescription • A possessor in the concept of holder cannot acquire property by acquisitive prescription. For prescription to set in, the possession must be adverse, public, and to the exclusion of all. Possession in the concept of holder 1. Lessees 2. Trustees 3. Antichretic creditors 4. Agents 5. Attorneys 6. Depositaries 7. Co-owners – unless the co-ownership is clearly repudiated by unequivocal acts communicated to the other co-owners • Tax declarations and receipts are not conclusive evidence of ownership but when coupled with proof of actual possession, tax declarations and receipts are strong evidence of ownership. ARTICLE 541 Requirements of presumption of a just title: 1. Must be in possession (actual or constructive) 2. The possession must be in the concept of owner • Actual possession of the property under claim of ownership raises the disputable presumption of ownership. The true owner must resort to judicial process fro the recovery of the property. • The article can apply to both real and personal property Reasons for presumption: 1. Presumption that one is in good faith 2. Inconvenience of carrying proofs of ownership around “Just title” in possession 1. It is presumed 2. Just title means true and valid title sufficient to transfer ownership Three kinds of Titles 1. True and Valid Title – there was a mode of transferring ownership and the grantor was the owner 2. Colorable Title – although there was a mode of transferring ownership, something is wrong because the grantor is not the owner • Titulo Colorado is what is meant by just title in the law of prescription • Ordinary prescription needs good faith and just title • Extraordinary prescription does not need either good faith or just title • In case of real properties, prescription is 10 and 30 years respectively 3. Putative Title – although a person believes himself to be the owner, he nonetheless is not, because there was no mode of acquiring ownership • Adverse possession is needed only to acquire something by prescription. But there is no need for prescription if you are already the owner. • A person who is not in fact in possession cannot acquire a prescriptive right to the land by the mere assertion of a right therein ARTICLE 542 • By analogy, if my possession of the house is in the concept of owner, my possession of the furniture is also presumed to be in the concept of owner. Therefore, my just title to both the house and furniture is presumed. • By “real property” and “movables” we mean only real or personal things, NOT rights. Applicability of the Article 1. Whether the possessor be in good or bad faith

2. 3.

Whether the possession be in one’s name or another Whether the possession be in the concept of owner or holder

ARTICLE 543 Co-possession • Exclusive possession – begins at the time of division • Interruption in possession of PART of the thing – only limited to that part thereof. Also, there is a proportionate losing in the area possessed. Rules in civil interruption 1. Civil interruption is produced by judicial summons to the possessor 2. Judicial summons shall be deemed not to have been issued, and shall not give rise to interruption: • If it should be void for lack of legal solemnities • If the plaintiff should desist from the complaint or should allow the proceedings to lapse • If the possessor should not be absolved from the complaint In all these cases, the period of the interruption shall be counted FOR the prescription. ARTICLE 544 First paragraph • Although because of the interruption his good faith ceases, the possessor can still retain the property until he has been fill reimbursed for all the necessary and useful expenses made by him on the property • Fruits refer to the natural, industrial, and civil fruits, not to other things • Legal interruption happens when a complaint is filed against him and he receives the proper judicial summons • Before legal interruption, the fruits received are his own • After the receipt of the summons, the right to get the fruits not yet gathered ceases • Possessor is entitled to the fruits received before the conversion into BAD FAITH, for then, he would still be in good faith • When a contract of sale is void, the possessor is entitled to keep the fruits during the period for which it held the property in good faith Second paragraph • If at the time of legal interruption, the crops are still growing, the rule on pending crops, not that on gathered crops, should apply • If at the time of legal interruption, the crops have already been gathered, but are sold only after such interruption, the sale is immaterial, for the law only requires only a gathering or severance Third paragraph • If civil fruits accrue daily, Art. 545 does not apply • Actual receipt of the rents is immaterial ARTICLE 545 • This article applies to PENDING fruits, natural or industrial. Also to crops already planted but not yet manifest. • The expenses for cultivation shall also be divided pro rata. Manresa: the better rule would be for the expenses to be borne in proportion to what each receives from the harvest • The charges (taxes, interest on mortgages) are also to be divided in proportion to the time o possession

ARTICLE 546 Necessary Expenses – they are those without which the thing would physically deteriorate or be lost; those made for the preservation of the thing They do not increase the thing’s value; they merely prevent the things from becoming useless Examples • Those incurred for cultivation, production, and upkeep • Necessary repairs for the house NOT necessary expenses • Those incurred for filling up with soil a vacant or deep lot • House constructed on land possessed by a stranger

• •

Land taxes – they are merely charges Unnecessary improvements on a parcel of land purchased at auction sale, made just to prevent redemption • Expenses made by the possessor to enable him to use the property for his own purposes Rights of a possessor as to necessary expenses • If in good faith 1. Refund 2. Retain premises till paid • If in bad faith – refund only • If the owner sues the possessor for the recovery of the property, the possessor in good faith must file a counterclaim for the refund of necessary and useful expenses, otherwise the judgment in the case will be a BAR to a subsequent suit brought solely for the recovery of such expenses Useful expenses – those that add value to the property Examples • Those incurred for an irrigation system • Erection of a chapel • Making artificial fishponds • Construction of additional rooms in the house • For clearing up the land formerly thickly covered with trees and shrubbery Rights of a possessor as to useful expenses • If in good faith 1. Reimbursement – either the amount spent or for the increase in value 2. Retention – till paid 3. Removal – provided no substantial damage or injury caused to the principal, reducing its value. Unless, option 1 is exercised. The possessor in good faith is entitle to both the fruits and expenses, hence they o not compensate each other. •

If in bad faith – is NOT entitled to any right regarding the useful expenses. The builder in bad faith loses whatever is built without payment of any indemnity. Recovery cannot prosper: • Possessor in bad faith • Failure to present a counterclaim Remarks • Right of retention – no need to pay rent • During the period of retention, additional improvements will not be entitled to refund because the builder already knew that he is not the owner (bad faith) ARTICLE 547 Damage – substantial one that reduces the value of the property, thus a slight injury curable by an ordinary repair does not defeat the right of removal, but the repairs should be chargeable to the possessor ARTICLE 548 Luxurious or Ornamental expenses – those which add value to the thing only for certain determinate persons in view of their particular whims. They are neither essential for preservation nor useful to everybody in general. Examples • Hand paintings on the wall of the house • Garage made of platinum • Water fountains in gardens Rights of a possessor as to luxurious expenses • If in good faith No right of refund or retention but can remove if no substantial injury is cause. However, owner has option to allow: 1. Possessor to remove 2. Or retain for himself by refunding the AMOUNT SPENT

•

In bad faith

No right of refund or retention but can remove if no substantial injury is cause. However, owner has option to allow: 1. Possessor to remove 2. Or retain for himself by refunding the VALUE it has at the time owner ENTERS into possession • The value of the refund if the possessor is in bad faith is less because depreciation has set in. ARTICLE 549 • Possessor in bad faith: The refund should not exceed the amount spent, otherwise he is placed in a better position than the possessor in good faith Rights of a possessor regarding the fruits • If in good faith 1. Gathered or severed fruits are his own 2. Pending or ungathered fruits – pro-rating between possessor and owner of expenses, net harvest, and charges • Bad faith 1. Gathered fruits – must return value of fruits already received as wells as the value of fruits which the owner or legitimate possessor could have received with due care or diligence, minus the necessary expenses 2. Pending or ungathered fruits – no rights at all, not even to expenses for cultivation • The possessor in bad faith is duty bound to render an accounting of the fruits received or could have been received and must pay damages amounting to a reasonable rent for the term of his possession. • The rule as to the fruits does not apply to a defendant in a forcible entry case where the recoverable damages are the reasonable compensation for the use and occupation of the premises – the fair rental value. ARTICLE 550 Every possessor – refers to one in good or bad faith, concept of owner or holder, in one’s own name or another, and NOT to the owner or the person adjudged by the court to be lawfully entitled to possess. Litigation – refers to a court action ARTICLE 551 Neither the possessor in good faith nor in bad faith is entitled to: • •

Improvements caused by NATURE Improvements caused by TIME

ARTICLE 552 Rules applicable • Good faith 1. Before receipt of judicial summons – NOT liable 2. After judicial summons • Loss or deterioration thru fortuitous event – NOT liable • Thru fraudulent intent or negligence - LIABLE • Bad faith – LIABLE in any case ARTICLE 553 ARTICLE 554 -ARTICLE 555 Ways of Losing Possession • Thru possessor’s voluntary will and intent 1. Abandonment 2. Assignment (onerous or gratuitous conveyance) • Against the possessor’s will 1. Possession of another for more than one year 2. Final judgment in favor of another 3. Expropriation 4. Prescription in favor of another 5. Recovery or reivindication by the legitimate owner • Because of the object 1. Destruction or total loss of the thing 2. Going out of commerce 3. Escaping from possessor’s control of wild animals

Abandonment – voluntary renunciation of a thing Requisites: • The abandoner must have been a possessor in the concept of owner • He must have the capacity to renounce or alienate • No expectation to recover or intent to return or get back Additional Doctrines: • A property owner cannot be held to have abandoned the same until at least he has some knowledge of the loss if its possession or the thing • There is no real intention to abandon property when as in case of a shipwreck or a fire, things are thrown into the sea or upon the highway • An owner may abandon possession merely, leaving ownership in force, but a mere possessor cannot abandon ownership since he never had the same • If an owner has not lost possession because there has been no abandonment, it surely cannot be acquired by another thru prescription • There is no abandonment if an owner merely tolerated another’s possession, nor if the latter was done by stealth or effected thru force and intimidation • There is no abandonment of movables even if there is temporary ignorance of their whereabouts, so long as they remain under the control of the possessor (so long as another has not obtained control over them) • In true abandonment, possession de facto and de jure are lost • Abandonment which converts the thing into res nullius does not apply to land Assignment – complete transmission of ownership rights to another person, onerously or gratuitously • at no time did the thing not have a possessor for possession merely changed hands or control • both possession de facto and de jure are lost, and no action will allow recovery Possession of another • If a person is not in possession for more than one year, he loses possession DE FACTO. Thus, he can no longer bring an action for forcible entry or unlawful detainer. Moreover, constructive possession is also lost possession. But may still institute an accion publiciana to recover possession de jure, possession as a legal right, or the real right of possession. • If a person loses possession for more than 10 years, he loses possession de jure, or the real right of possession. Accion publiciana or reivindicatoria is still possible unless prescription has set in. Destruction, Loss, Withdrawal from commerce • A thing is lost when it perishes, or goes out of commerce, or disappears in such a way that its existence is unknown, or it cannot be recovered. • Partial loss in general results only in the loss of possession of the part lost • Art. 555 refer to both real and personal property except par. 4. ARTICLE 556 • Possession is lost – when he has no idea at all about the whereabouts of the movable • NOT lost – he more or less knows its general location, though he may not know its precise or definite location ARTICLE 557 • If I leave my land and another possesses the same fro the required period, I have lost my possession and the ownership over the same, insofar as the occupier is concerned, but not insofar as other people. For strangers, relying on the Registry, are still privileged to consider me possessor and owner. ARTICLE 558 -ARTICLE 559 Possession of movable property acquired: • In bad faith – is never equivalent to title • In good faith – as a general rule, equivalent to title. If the owner wants to get back, he must reimburse. • Exception: NOT equivalent to title when the owner had LOST it or UNLAWFULY DEPRIVED of it, UNLESS the possessor had acquired it in good faith at a public sale. Note: • The title is not that of an absolute owner but one that can be defeated only by the true owner who gives reimbursement • Even if not the absolute owner yet, possession may eventually ripen into full ownership thru acquisitive prescription • It is necessary that the possession be in the concept of owner an that the owner had not lost the property nor unlawfully deprived of it

Acquired in good faith – the possessor is of the belief that the person whom he received the thing was its owner and could transfer valid title thereto Title – the juridical act of transferring or conferring ownership; and not a document Lost – missed or misplaced Unlawfully deprived – taken by another thru theft, robbery or estafa. Not applicable if only “civil liability” arises. Summary: • Owner may recover WITHOUT reimbursement 1. From possessor in bad faith 2. From possessor in good faith if owner had lost or unlawfully deprived of it • Owner may recover but SHOULD reimburse 1. If possessor acquired the object in good faith at a PUBLIC SALE or AUCTION • Owner CANNOT recover, even if he offers reimbursement (whether or not lost or unlawfully deprived) 1. If possessor had acquired it in good faith by purchase from a MERCHANT’S STORE, FAIRS, or MARKETS 2. If owner by his conduct is precluded from denying the seller’s authority to sell (estoppel) 3. If possessor had obtained the goods because he was an innocent purchaser for value and holder of a NEGOTIABLE document of title to the goods ARTICLE 560 • One’s possession of wild animals is lost when they are under ANOTHER’S control or under NO ONE’S control Rules on Domesticated or Tamed animals 1. The possessor does NOT lose possession of them – as long as they habitually return to possessor’s premises 2. Possession is LOST – if the aforementioned habit has ceased ARTICLE 561 • Recovery should be according to the law such as proper writs and actions or with the aid of the competent authorities • Art. 561 applies to both possessors in good and bad faith but only if BENEFICIAL to them • Possessor in good faith – may make use of the article for the purpose of prescription • Possessor in bad faith – is not required to return the fruits the owner could have received during the period of interruption, for to impose the duty would prejudice and not benefit, said possessor. USUFRUCT Article 562 USUFRUCT – gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provide • •

Real right, of temporary in nature, which authorizes its holder to enjoy all the benefits which result from the normal enjoyment of another’s property, with the obligation to return, at the designated time, either the same thing, or in special cases, its equivalent combination of right to use and right to the fruits

• right to dispose – “naked ownership” • Full ownership = Naked ownership + Usufruct Essential Characteristics Real right – whether Registered or not Temporary in nature or duration Its purpose is to enjoy the benefits and derive all the advantages from the object as a consequence of normal use or exploitation Natural Characteristics The obligation of CONSERVING or PRESERVING the FORM AND SUBSTANCE of the thing. 1. 2. 3.

Accidental Characteristics 1. whether it be pure or a conditional usufruct 2. the number of years it will exist 3. whether it is in favor of one person or several, etc.

Object of Usufruct 1. may be real or personal property 2. may be sterile or productive (fruitful things) 3. may be created over a right (as long as it is NOT strictly personal or intransmissible, and has an independent existence Rights of Action 1. action to protect the usufruct itself 2. action to protect the exercise of the usufruct Article 563 Classification as to Origin 1. Legal – created by law. Such usufruct cannot, because of family reasons, be mortgaged or alienated by the parents. 2. Voluntary or Conventional a. created by the will of the parties INTER VIVOS (during lifetime) • if this is created by sale or any valuable consideration – Statute of Frauds applies to real property and personal property P500 or more b. created MORTIS CAUSA • the formalities of a will or codicil must be complied with, either notarial or holographic 3. Mixed or Prescriptive – created by both law and act of person • To constitute a valid usufruct, all the requirements of the law must be complied with • A usufruct over real property, being a real right, must be duly registered to bind innocent third persons Article 564 Classification as to Quantity or Extent 1. as to fruits – total or partial (depending on whether all the fruits are given or not) 2. as to object – UNIVERSAL (if over the entire patrimony) or SINGLE or PARTICULAR (if only individual things are included Classification as to Number of persons enjoying the right 1. Simple – only one usufructuary 2. Multiple – several a. Simultaneous – at the same time b. Successive – one after the other • If created by donation – all the donees must be alive, or at least already conceived, at the time of he perfection of the donation • Testamentary succession – there must only be two successive usufructuaries, both must be alive or at least conceived at the time of the testator’s death Classification as to Quality or Kinds of Objects 1. over RIGHTS – the right must not be strictly personal or intransmissible • right to receive present or future support cannot be subject of a usufruct • a usufruct over a real right is also by itself a real right 2. over THINGS • NORMAL – or perfect or regular. This involves non-consumable things where the form and substance are preserved. • ABNORMAL – imperfect or irregular. Usufruct over consumable property (quasi- usufruct), over non-consumable things that gradually deteriorate by use, over unproductive or sterile animals Classification as to Terms or Conditions 1. Pure usufruct – no term or condition 2. With a period or term (“a termino”) a. Ex die – from a certain day b. In diem – up to a certain day c. Ex die in diem – from a certain day up to a certain day 3. With a condition (conditional) Article 565 Rules governing a usufruct 1. the agreement of the parties or the title granting the usufruct 2. in case of deficiency, apply the Civil Code

In case of Conflict The rights granted by virtue of a will prevails over the codal provisions, unless repugnant to the mandatory provisions of the Civil Code. Article 566 Fruits -The usufructuary is entitled to the natural, industrial and civil fruits that will accrue during the existence of the usufruct. Dividends – they are income or civil fruits, whether cash or stock dividends. They should belong to the usufructuary because they are declared out of company profits and not corporate capital. • Generally, products which diminish capital, cannot be considered fruits, unless a contrary intention appears. • Hidden treasure – usufructuary is a stranger. But may be entitled to one-half if he is finder.

Article 567 Rules • Fruits pending at the beginning of usufruct 1. belong to the usufructuary 2. no necessity of refunding owner of expenses incurred 3. but without prejudice to the right of third persons • Fruits pending at the termination of the usufruct 1. belong to the owner 2. but the owner must reimburse the usufructuary for the ordinary cultivation expenses, and for the seeds and similar expenses, from the proceeds of the fruits 3. Also, rights of innocent third parties should not be prejudiced. Article 568 Rules when leased property to another Lease executed by the usufructuary should terminate at the end of the usufruct or earlier except in the case of leases of rural lands, because if the usufruct ends earlier, the lease continues for the remainder of the agricultural year. •

It is not the naked owner, but the usufructuary who has the right to choose the tenant.

Article 569 --Article 570 Civil fruits shall accrue proportionately to the naked owner and usufructuary, for the time the usufruct lasts. • • •

The parties may stipulate otherwise in their contract, absent the stipulation apply Art 570. The article applies whether the date of distribution of benefits from industrial or commercial enterprises are fixed or not. The SC ruled that both cash and stock dividends are fruits. Same should apply to profits of a partnership.

Article 571 Usufruct has the right to the enjoyment of: 1. 2. 3.

accessions (whether artificial or natural) servitudes or easements all benefits inherent in the property – like the right to hunt, fish, construct rain water receptacles, etc

Article 572 Rights with Reference to thing itself 1. He may personally enjoy the thing (entitled to possession and fruits) • The enjoyment may also be thru another unless the contrary has been provided or stipulated 2. He may lease the thing to another – even without the owner’s consent. Moreover, ordinarily the lease must NOT extend to a period longer than that of the usufruct, unless the owner consents. Thus, the lease ends at the time the usufruct ends, except in rural leases. • If the lessee should damage the property, the usufructuary shall answer to the owner • The usufructuary may demand reimbursement from the lessee, because of the breach of contract of the lease

• If the usufructuary cannot pay, his bond shall be liable Rights with Reference to the right itself 1. He may alienate the usufructuary right – sell, donate, bequeath, or devise except: a. Legal usufruct b. Usufruct granted in consideration of his person c. Usufruct acquired thru a caucion juratoria 2. He may pledge or mortgage the usufructuary right. But he may not pledge or mortgage the thing itself. • Parental usufruct cannot be alienated or pledged or mortgaged. Article 573 Effect of the Deterioration – fast deteriorating things 1. NORMAL USE – the usufructuary is NOT responsible. No necessity to make repairs to restore them to their formal condition. Failure to return the thing will result in indemnification for the value of the object may have at the end of the usufruct 2. EVENT OR ACT that ENDANGERS their preservation / FORTUITOUS EVENT, even though NO fault or negligence or fraud on the part of the usufructuary – required to make ordinary or necessary repairs 3. FRAUD or NEGLIGENCE – the usufructuary is responsible. Such liability may however be set off against improvements Article 574 Quasi-usufruct - on consumable things. Form and substance is not really preserved. This is really a SIMPLE LOAN. Rules for Quasi-usufruct 1. the usufructuary(debtor-borrower) can use them as if he is the owner, with complete right of pledge or alienation 2. BUT at the end of the usufruct, he must a. Pay the APPRAISED value (if appraised when first delivered) b. Or if there was no appraisal, return the same kind, quality or quantity OR pay the price current at the termination of the usufruct (not the original price or value) Article 575 Special usufruct on fruit bearing trees - Rights The usufructuary can use the following: 1. dead trunks 2. those cut off or uprooted by accident • but he must replace them with new plants Article 576 1. if it is impossible or too burdensome to replace them, the usufructuary has an option. He – a. may use the trunks but should replace them b. or may leave the dead, fallen, or uprooted trunks at the owner’s disposal, and demand that the latter remove them and clear the land 2. if it is slightly burdensome to replace them, the usufructuary must replace them (whether he uses the dead trunks or not), and he cannot demand clearance of the land by the owner Article 577 Obligations of the usufructuary – Special usufruct over woodland 1. 2.

3.

in the exercise of the diligence in caring for the property, the woodland should be preserved, either by development or by replanting, he cannot consume all in the cutting or felling of the trees, he must – a. follow the owner’s habit or practices b. in default thereof, follow the customs of the place (as to manner, amount, season), all without prejudice to the owner, for he can use but cannot abuse – applicable if woodland is a copse(thicket of small trees) or consists of timber for building c. of there be no customs, the only time the usufructuary can cut down trees will be for repair or improvement, but here the owner must first be informed cannot alienate the trees unless he is expressly or impliedly permitted by the owner or unless he needs the money to do some repairs (but need to inform owner)

Article 578 What the usufructuary can demand from the owner 1. authority to bring the action (usually a special power of attorney)

2.

proofs needed for recovery

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to prejudice third parties, the usufruct must either be registered or known to them

Institution of the action The action may be instituted in the usufructuary’s name, for being the owner of the usufruct, he is deemed a real party in the interest • if the purpose is the recovery of the property or right, he is still required to obtain authority of the naked owner • if the purpose is to object to or prevent disturbance over the property, no authority is needed Effect of the judgment 1. naked ownership belongs to the owner 2. usufruct belongs to the usufructuary

Article 579 Useful and Luxurious Improvements The usufructuary has the right to make: 1. useful improvements 2. luxurious improvements BUT – 1. he must not alter the form or substance of the property held in usufruct 2. he is NOT entitled to a refund, BUT he may – a. either remove the improvements if no substantial damage is caused b. or set-off(compensate) the improvements against damages for which he may be liable • Improvements may be registered, but not independently, but in the registration proceedings of the land held in usufruct to protect him against third persons • Example: to enforce right of removal of useful improvements against innocent purchaser for value of land sold • While a possessor in good faith is entitled to a refund for useful improvements, a usufructuary is not. Article 580 Rules – Set-off 1. If damage exceeds the value of the improvements, usufructuary is still liable for the difference 2. If the value of the improvements exceeds the damage, the difference does not go to the usufructuary, but accrues instead in the absence of a contrary stipulation in favor of the naked owner, otherwise it is as if the usufructuary would be entitled to a partial refund in cash Requisites – Set-off 1. The damage must have been caused by the usufructuary 2. The improvements must have augmented the value of the property Article 581 Naked owner – retains the right to alienate the property But – 1. He cannot alter its form or substance 2. Or do anything prejudicial to the usufructuary •

A purchaser of the property must respect the usufruct in case it is registered or known to him, OTHERWISE, he can oust the usufructuary, who ca then look to the naked owner for damages • If the naked owner bequeaths or devises to another thru a will, the legatee or devisee should respect the usufruct • Double sale: ordinarily not allowed to sell usufruct to another after having sold it first to the usufructuary. But if he does so Art 1544 on Double Sale will apply. Other rights of the naked owner 1. Construct any works 2. Make any improvements 3. Or make new plantings thereon if it be rural BUT – such acts must NOT cause: 1. Decrease in the value of the usufruct 2. Or prejudice the right of the usufructuary

Article 582 Usufructuary of a part of common property A co-owner may give the usufruct of his share to another, even without the consent of others, unless personal considerations are present. The usufructuary in such a case takes the owner’s place as to: 1. Administration (management) 2. Collection of fruits or interest Effect of Partition 1. If there be partition, the usufructuary continues to have the usufruct of the part allotted to the coowner concerned 2. If the co-owners make a partition, without the intervention of the usufructuary, this is alright, and the partition binds said usufructuary. Necessarily however, the naked owner must also respect the usufruct. Article 583 • Inventory and security – not necessary before the right to usufruct begins. They are merely necessary before physical possession and enjoyment of the property can be had Requirements for the making of the inventory 1. The owner must be previously notified 2. The condition of the immovables must be described 3. The movables must be appraised 4. No form is required except real property in public instrument to bind third persons 5. Expenses to be borne by the usufructuary 6. Effect of not making inventory – same as not giving security 7. When inventory is NOT required: a. When no one will be injured thereby provided the naked owner consents b. In case of waiver by the naked owner or the law, or when there is a stipulation in a will or contract The giving of Security • Purpose: to insure faithful compliance of the duties of the usufructuary • Form – any kind of sufficient security shall be allowed – cash, personal bond, mortgage, etc • When security is not required: a. No one will be injured thereby (prejudice) b. Waiver by the naked owner, or stipulation in a will or by contract c. When the usufructuary is the donor of the property (who has reserved the usufruct) d. When there is parental usufruct- except when the parents contract a subsequent marriage, provided that each child’s property does not exceed 50,000 in which case, the parents have to file a bond not as usufructuary, but as guardian or administrator e. When there is a caucion juratoria, which takes place of the bond Article 584 --Article 585 --Article 586 Effects of Failure to give security • On the rights of the naked owner a. He may deliver the property to the usufructuary (but even if delivery is made, naked owner may still later demand the needed security) b. Or the naked owner may choose retention of the property as administrator (usufructuary gets the net proceeds minus the administration expenses, fixed by agreement or the courts) c. Or the naked owner may demand receivership or administration (by another) of the real property, sale of movable, conversion or deposit of credit instruments, or investment of cash or profits • On the rights of the usufructuary a. The usufructuary cannot possess the property till he gives security b. He cannot administer the property, he cannot execute a lease thereon c. Cannot collect credits that have matured, nor invest them unless the Court or naked owner consents • (c) - applies even if the usufructuary is exempted from giving security d. But can alienate his right to the usufruct. The grantee may possess the moment he gives security.

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Although the owner may demand sale of movables, he may retain some of them for their artistic worth or sentimental value, he may demand their delivery to him provided he gives security for the payment of legal interest on their appraised value Note that if the movable sold, the cash belongs to the owner, but the interest thereon (6% per annum) belongs to the usufructuary

Article 587 • The Article applies when he is required but cannot afford to give security. Does not apply when exempted from giving security Caucion Juratoria • The promise under oath • A sworn duty to take good care of the property and return the same at the end of the usufruct • It takes place of the bond or security based on necessity and humanity Requisites • Proper court petition • Necessity for delivery of furniture, implements, or house included in the usufruct • Approval of the court • Sworn promise Restriction – usufructuary cannot alienate or lease the property for this means that he does not need them Article 588 • RETROACTIVE effect of giving bond

Article 589 Duty to take care of property 1. Although care of a pater familias is required, still a usufruct is NOT extinguished by bad use. Bad use entitles the owner to demand its administration without prejudice to the usufruct. 2. Usufructuary is required to make ordinary repairs and to notify the naked owner of urgency of extraordinary repairs. Moreover, usufructuary answers for damage caused by the fault or negligence of his alienee, grantee, agent, or lessee. Rules • Damage to property caused by the fault or negligence of the usufructuary is demandable right away (no need to wait for the end of the usufruct) • The usufructuary is NOT entitled to reimbursement for ordinary repairs but may retain the property till he is reimbursed of extraordinary expenses, which he may have been compelled to do. Article 590 Liability of Usufructuary for acts of the substitute 1. Usufructuary is made liable for the acts of the substitute. While the substitute answers to the usufructuary, the usufructuary answers to the naked owner. 2. Even when there is a sub-usufructuary, it is still the usufructuary who answers to the naked owner for ordinary repairs, taxes on the fruits, etc. Article 591 Rules in case of fruitful or productive livestock 1. REPLACE a. If some animals die from natural causes b. or lost due to rapacity of beasts of prey • even if the cause be fortuitous, there is the duty to replace • replacement should be made from the YOUNG produced. 2. NO obligation to replace a. If there is a total loss of the animals because of some unexpected or unnatural loss (like contagious disease or any uncommon event, provided usufructuary has NO fault b. If there is a partial loss (under the same conditions) • Remains, not the remainder, must be given to the naked owner • In cased of partial loss, usufruct continues on the remainder, provided usufructuary has NO fault • If because of FAULT – usufruct still continues because bad use does not extinguish usufruct (Manresa) • Sterile animals – rule on usufruct over fungibles applies

Article 592 Duty to make ordinary repairs For the usufructuary to be responsible for ordinary repairs, the following conditions must be present: 1. They are required by NORMAL or NATURAL use 2. They are needed for preservation 3. They must have occurred during the usufruct 4. They must have happened with or without the fault of the usufructuary • If HE was at fault, the usufructuary must pay indemnity for damages If he renounces usufruct: • If NO fault, no need to make or pay for necessary repairs but he must surrender the fruits received • If at fault, he is not exempted from necessary repairs. He would still be liable for damages. Remedy of naked owner if usufructuary does not make repairs Provided that the naked owner had demanded, the owner may make them at the expense of the usufructuary Ordinary repairs – those required by wear and tear due to the natural use of the thing and are indispensible for its preservation Article 593 --Article 594 Kinds of extraordinary repairs 1. Those caused by NATURAL use but not needed for preservation 2. Those caused by ABNORMAL and EXCEPTIONAL circumstances and are needed for preservation 3. Those caused by ABNORMAL and EXCEPTIONAL circumstances but are not needed for preservation Who should pay 1. For 1,2,3 – Naked Owner (whether or not he is notified by the usufructuary) 2. For (1) - The naked owner is not required to make them. But if made, it should be borne by the owner 3. He cannot be compelled by the usufructuary to make them 4. For (2) – owner cannot be compelled but the usufructuary may make them with the right to get the increase in value and the right of retention till paid at the termination of the usufruct, provided there was notification and failure owner to make repairs 5. For (3) – owner cannot be compelled to make them. Also, the usufructuary is not allowed to make the repairs because it is not necessary for the preservation • If extraordinary repairs were made, owner may demand legal interest on the amount for the duration of the usufruct (because the usufructuary benefited) Requisites before usufructuary is allowed to make repairs 1. There must be due notification to the naked owner of urgency 2. The naked owner failed to make them 3. The repair is needed for preservation Right of Usufructuary who made repairs 1. Get increase in value (difference in value before and after repair) or get reimbursement of expenses 2. Right of retention till paid – reimbursement is to be made only at the end of the usufruct Article 595 The naked owner may: 1. Construct works 2. Make improvements 3. Make new plantings (if rural) Provided: 1. The value of the usufruct is NOT diminished 2. Or the right of the usufructuary is not prejudiced Effect of increase in value of the usufruct because of the constructions or plantings 1. The usufructuary profits by the said increase 2. He does NOT have to pay legal interest on the improvement because it is a VOLUNTARY act of the naked owner

Article 596 Usufructuary should pay for: 1. Annual charges (on the fruits) 2. Annual taxes on the fruits 3. Theoretically, also the annual taxes on the land(including real estate tax) • Land Taxes / Real property tax – owner, because it is a burden upon the capital • Effect of payment of annual real property tax – does not necessarily follow that he has adverse possession, for after all, it is he who must pay for said taxes (Quirante vs Quirante) Other Charges 1. Ordinary repairs 2. Necessary cultivation expenses Article 597 The naked owner pays for taxes imposed directly on the capital (provided that they are not annual) – e.g. estate tax Rules 1. If paid by naked owner, he can demand legal interest on the sum paid 2. If advanced by the usufructuary, he -a. Should be REIMBURSED the amount paid without legal interest b. Entitled to RETENTION till paid • Reimbursement should be made only at the TERMINATION of the usufruct provided ADVANCE had been made voluntarily. If forced to pay, reimbursement with damages should be made immediately thereafter. Article 598 Applicability of the article 1. If the usufruct is a universal one 2. The naked owner a. Has debts b. Or is obliged to make periodical payments • Particularly applies if a person donates everything but reserves to him the usufruct thereof When the usufructuary has to pay for the debts of the naked owner 1. There being no stipulation regarding the payment of debts, the done shall be responsible thereof only when the donation has been made in fraud of creditors • The donation is always presumed to be in fraud of creditors 2. When the donation imposes upon the done the obligation to pay the debts of the donor, I the clause does not contain any declaration to the contrary, the former is understood to be liable to pay only the debts which appear to have been previously contracted. In no case shall the done be responsible for debts exceeding the value of the property donated, unless a contrary intention clearly appears. Article 599 Rules on Usufruct on matured credit 1. If usufructuary has given security, collection and investment can be done WITHOUT the approval of the court or of the naked owner 2. If the usufructuary has NOT given security, or when he is exempted or when there was only a caucion juratoria, collection and investment can be done only WITH the approval of the court or the naked owner Ownership of the credit collected If the credit is collected, same belongs to the naked owner, but the usufructuary gets the usufruct. • The usufructuary shall be liable for failure to collect matured credit because of his fault or negligence Article 600 How liability of naked owner may be extinguished 1. By constituting a usufruct over an equivalent estate 2. Or by payment of a periodical pension equivalent to the loss 3. Or in any other similar way Article 601 When notification of the usufructuary is required 1. If a third party commits acts prejudicial to the rights of the ownership 2. If urgent repairs are needed

3. If an inventory is to be made Effect of non-notification 1. In (1) – usufructuary is liable for damages, as if they had been caused thru his own fault 2. In (2) – the usufructuary cannot even make the extraordinary repairs needed 3. In (3) – the inventory can go on, but the naked owner may later point out discrepancies and omissions in the inventory Article 602 • Article applies when usufructuary lost the case • The defense of the naked ownership is naturally chargeable to the naked owner Article 603 Usufruct is extinguished: 1. By the DEATH of the usufructuary unless a contrary intention appears; Exceptions: a. In case of multiple usufructs – ends on the death of the last survivor b. In case there is a period fixed based on the number of years that would elapse before a person reach a certain age c. In case the contrary intention clearly appears (express or implied) 2. By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct; • If the usufruct is on real property, or on a real right on real property, the period must be recorded to bind third persons • The term should not exceed 50 years if the usufructuary is a juridical person. Premature abandonment or dissolution of the juridical entity extinguishes the usufruct 3. By merger of the usufruct and ownership in the same person; 4. By renunciation of the usufructuary; • May be made expressly or impliedly, as long as it is done clearly, with intent to renounce (Art 1270) • No need for naked owners consent – mere abandonment of one’s own right • If the renunciation is made gratuitously and in fraud of creditors, said creditors can rescind the renunciation, to the extent of their credits 5. By the total loss of the thing in usufruct; • Partial loss – usufruct continues on the remaining part • For total loss of the building (whether land is included in usufruct or not) • For legal loss (as in the case of expropriation) 6. By the termination of the right of the person constituting the usufruct; • If the usufructuary has a sub-usufructuary, the sub-usufruct ends at the time the usufruct is extinguished. If the sub-usufructuary dies ahead of the usufructuary, the sub-usufruct ends, unless a contrary intention appears • Death of the naked owner does NOT extinguish the usufruct 7. By prescription • Refers to acquisitive prescription by a stranger either of the usufruct or of the naked ownership • Mere non-user by the usufructuary of the usufruct does not terminate the usufruct, unless it is also a renunciation Other causes for Extinguishment a. Annulment b. Rescission c. Mutual withdrawal d. Legal causes – such as attainment of age of majority in parental usufruct • ABUSE or MISUSE of the usufruct does Not extinguish it, unless by virtue of such abuse or misuse, the thing has been totally lost • Non-fulfillment of a suspensive condition does NOT extinguish usufruct, because the usufruct NEVER came into existence Article 604 --Article 605 • Not applicable to trusts

Article 606 --Article 607 Rules 1. Usufruct on BOTH building and land (but the building is destroyed in any manner whatsoever before the expiration of the usufruct a. The usufruct on the building is ended, but the usufruct on the land continues b. Usufructuary is still entitled to the use of the land and the use of whatever materials of the house remain c. If the naked owner wants to rebuild but the usufructuary refuses, it is the usufructuary who prevails for the use of the land is still his for the remainder of the period 2. Usufruct on the building ALONE (building is destroyed before the termination of the period) a. The usufruct on the building ends, but may still make use of the materials of the house remain b. The usufructuary is entitled to the use of the land – automatic use of the land by usufruct of the building c. But since there is no usufruct over the land, the naked owner has preferential right to its use. • If the owner wants to rebuild, he shall have the right to occupy the land and to make use of the materials, being obliged to pay to the usufructuary, during the continuance of the usufruct the legal interest upon the sum equivalent to the value of the land and of the materials Note: there should be interest –

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1. On the materials 2. On the land Destruction (of building) – person at fault must indemnify

Article 608 Rules 1. If the naked owner and the usufructuary share in the premiums (and the property is destroyed): a. If the owner rebuilds, the usufruct continues on the new building • If cost of building is LESS than insurance indemnity – usufructuary should get legal interest on the difference (the amount not invested) • If the cost is MORE – usufructuary enjoys new building completely with no obligation to give interest on the additional cost to the naked owner b. If the owner does NOT rebuild, he gets the insurance indemnity but should pay the interest(fruits) thereon to the usufructuary 2. If the naked owner ALONE pays for the insurance and the usufructuary has REFUSED to share (and the property is destroyed) a. The naked owner gets the whole indemnity b. If usufruct was on the building and the land, usufruct continues on the land and the materials. • Owner has no right to rebuild if opposed by usufructuary. • If rebuild with consent, there is NO usufruct on the new building, but the naked owner must pay interest on the value of the land and the old materials c. If usufruct on building alone – naked owner may rebuild with or without approval of the usufructuary, but he must pay interest on the value of the land and materials that may have been used 3. If the naked owner ALONE paid because of failure or omission of usufructuary – effect is the same as if there was sharing, but the usufructuary must reimburse his share of insurance premium to the owner 4. If the usufructuary ALONE pays – a. The insurance indemnity goes t the usufructuary ALONE b. Usufruct continues unless the usufruct is constituted on the building alone c. Usufructuary has no obligation to rebuild • A contrary stipulation between the parties will PREVAIL Article 609 Rules in case of expropriation 1. If the owner ALONE was given the indemnity, he has the option – a. To replace with equivalent thing b. Or to pay to the usufructuary legal interest on the indemnity – requires security given by the naked owner for the payment of the interest 2. If BOTH were separately given indemnity – usufruct is totally extinguished 3. If usufructuary ALONE – must give it to the naked owner and compel the latter to return either the interest or to replace the property. He may even deduct the interest himself, if the naked owner fails to object.

Article 610 Effect of Bad use 1. BAD use – which does NOT cause considerable injury to the naked owner • Usufruct continues, naked owner CANNOT demand administration by himself 2. BAD use – which causes considerable injury • Usufruct continues, but the naked owner can demand delivery to and administration by him, but he will be obliged to pay the NET PROCEEDS to the usufructuary • Being an administrator merely, he cannot sell or alienate the right to the usufruct, though he may still alienate the property, without prejudice to the usufruct • COURT will determine whether or not there is considerable injury to the naked owner. Article 611 Rules in case of multiple usufruct 1. If constituted simultaneously – death of the last survivor terminates the usufruct 2. If constituted successively – death of last survivor However, it is essential that a. b.

If by virtue of donation – the donees-usufructuaries must be living at the time of donation Virtue of last will – there should only be two successive usufructuaries, and both must be alive or at least conceived

Article 612 Rights and obligations at the termination of the usufruct 1. Usufructuary: a. Must RETURN the property to the naked owner, but he has the right b. To RETAIN the property till he is REIMBURSED for TAXES on the capital (which had been advanced to him) and EXTRAORDINARY REPAIRS or EXPENSES (insofar as there has been an increase in the value) c. To REMOVE removable improvements or set them off against damages he has caused • Removal may be done either during or after the usufruct 2. Naked owner: a. Must cancel the security or mortgage (provided the usufructuary has complied with the obligations) b. In case of rural leases, respect leases until the end of the agricultural year c. Make reimbursements to the usufructuary in the proper cases

EASEMENTS OR SERVITUDES Article 613 Easements – an encumbrance imposed upon an immovable for the benefit of the community or one or more persons or for the benefit of another immovable belonging to a different owner • Real right • There is rightful limited use without ownership or possession • Refers to immovables Rule in choosing The one where the way is SHORTEST and will cause LEAST damage should be chosen. If these two circumstances do not concur in one single tenement, the way which will cause the least damage should be used, even if it will not be the shortest. Article 614 Characteristics of Easement 1. real right 2. imposable only on another’s property 3. jus in re aliena – a real right that may be alienated though the naked ownership is maintained

4. 5. 6. 7. 8.

it is a limitation or encumbrance on the servient estate for another’s benefit there is INHERENCE or INSEPARABILITY it is INDIVISIBLE it is INTRANSMISSIBLE it is PERPETUAL

Note: a. b. c. d. e. f. g. •

It is essential that there is a BENEFIT NOT essential that the benefit be exercised NOT essential that the benefit be very great The benefit should not be so great as to completely absorb or impair the usefulness of the servient estate The utility or benefit goes to the dominant estate – limited use but NO possession The exercise is naturally restricted by the needs of the dominant estate or of its owner Easements are not presumed, but may be imposed by law There can be NO easement imposed on PERSONAL property

Article 615 Article 616 Classification According to benefit 1. real – for the benefit of another immovable belonging to a different owner 2. personal – for the benefit of one or more persons or of a community According to manner 1. continuous – their use is incessant, or may be incessant without the intervention of any act of man 2. discontinuous – they are used at intervals and depend upon the acts of man According to existence 1. apparent – those made known and continually kept by external signs 2. non-apparent – show no external indication of their existence According to purpose 1. positive – the owner of the servient estate is obliged to allow something to be done on his property or do it himself 2. negative – the owner of the servient estate is prohibited to do something According to the right given 1. partial use 2. getting of specific material According to source 1. voluntary – constituted by will or agreement of parties or by a testator 2. legal – those constituted by law for public use or private interest 3. mixed – partly by agreement and partly by law

Article 617 Consequence of Inseparability • Easements cannot be sold or donated or mortgaged independently of the real property to which they may be attached • Registration of the dominant estate without the voluntary easement – does NOT extinguish the easement • If servient estate – extinguishes the voluntary easement Except: 1. actual knowledge of the existence of the unrecorded easement 2. there is an understanding or stipulation that the easement would continue to exist • Actual knowledge of third persons is equivalent to registration Article 618 • Partition or division of an estate does NOT divide the easement • Increase in the number of owners – does not make the easement more burdensome

Article 619 Judicial declaration that an easement exists – not creating one, but merely declares the existence of an easement created either by law or by the parties or testator. Article 620 Modes of Acquiring 1. If continuous and apparent – by TITLE or by PRESCRIPTION (ten years) 2. All others – by TITLE only • Intestate succession – does not create an easement but merely transmits an easement already existing • Prescription in Art. 620 – requires 10 years irrespective of good faith or bad faith Article 621 Rules 1. Positive – from the day the dominant estate began to exercise it 2. Negative – from the time NOTARIAL PROHIBITION was made on the servient estate Article 622 Easements that may be acquired only by title 1. continuous non-apparent – because they are not public 2. discontinuous apparent – because the possession is not uninterrupted 3. discontinuous non-apparent – because possession is neither public or uninterrupted Requisites of Prescription 1. possession in the concept of owner 2. public 3. peaceful 4. uninterrupted Article 623 Proof of existence of easements 1. the deed of recognition by the servient owner 2. final judgment Article 624 Apparent signs of an easement that apparently exists • originally, no true easement because there is only one owner • sign of the easement – merely an outward indication that the easement exists • it is NOT essential that there be an apparent sign between the two estates, it is important that that there is an apparent sign that an easement exist Rules 1. Before alienation – NO true easement 2. After alienation – a. There arises an easement if the sign continuous to remain unless there is a contrary agreement b. There is no easement if the sign is removed or if there is an agreement to this effect • If the DEED be silent, the easement exists unless the sign be removed

Article 625 • Unless the necessary rights are also granted, the right to the easement itself is rendered nugatory • Necessary rights include repair, maintenance, and accessory easements • To prejudice third persons, voluntary easements must be registered. Registration is generally not essential for legal easements. Article 626 • Easements appurtenant – easements with a dominant estate • Easements in gross – without a dominant estate, purely personal

Article 627 Article 628 Article 629 Article 630 Rights of the DOMINANT estate 1. to exercise the easement and all necessary rights 2. to make on the servient estate, all the necessary works for use and preservation of the servitude, BUT – a. must be at his own expense b. must notify the servient estate c. select convenient time and manner d. must not alter the easement nor render it more burdensome 3. ask for mandatory injunction to prevent impairment or obstruction 4. to RENOUNCE totally Obligations of the DOMINANT estate 1. cannot alter the easement 2. cannot make it more burdensome a. he cannot use the easement except for immovable originally contemplated b. in easement of right of way, cannot increase width of path or deposit soil outside the boundaries but may allow others to pass unless the contrary has been stipulated 3. if there be several dominant estates, each must contribute to necessary repairs and expenses in proportion to the benefits received by each estate Rights of the SERVIENT estate 1. retain ownership and possession of the portion of his land affected by the easement 2. to make use of the easement, unless deprived by stipulation, provided that the exercise of the easement is not adversely affected, provided further that he contributes to the expenses, unless there is a contrary stipulation 3. to change the location of a very inconvenient easement, provided an equally convenient substitute is made, without injury to the dominant estate Obligations of the SERVIENT estate 1. cannot impair the use of the easement 2. must contribute to the expenses in case he uses the easement, unless there is a contrary stipulation 3. in case of impairment, to restore conditions to the status quo at his expense plus damages 4. to pay for the expenses incurred for the change of location or form of easement Article 631 Modes of Extinguishment 1. merger in the same person of the ownership of the dominant and servient estates 2. non-user for ten years From what time to compute: • discontinuous – from the time it ceased to be used • continuous – from the day on which an act contrary to the same took place 3. when either or both of the estates fall into the condition that the easement cannot be used • bad condition of the tenement or impossibility of use – merely suspends since possibility of use revives the easement 4. expiration of the term or fulfillment of the condition 5. renunciation 6. redemption Other causes of extinguishment 1. expropriation 2. permanent impossibility of use 3. annulment, rescission, or cancellation of the title 4. abandonment of the servient estate 5. resolution of the right of the grantor to create the easement 6. registration of the servient estate as FREE, easement was not registered 7. in legal easement of right of way, opening of adequate outlet to the highway Article 632 Voluntary Easements • the easement itself may prescribe • the form or manner of using may also prescribe

Legal Easements • some legal easements do not prescribe, moreover, the right to exercise them cannot also prescribe. But the form and manner of using them may prescribe • some legal easements do prescribe, like the servitude of natural drainage Article 633 • co-ownership – the use of one prevents prescription with respect to others because of INDIVISIBILITY Article 634 Legal Easements – imposed by law and which have for their object: 1. public use 2. or the interest of private persons Different Legal Easements 1. easements relating to waters 2. right of way 3. party wall 4. light and view 5. drainage 6. intermediate distances 7. easement against nuisance 8. lateral and subjacent support Article 635 How public or communal easements are governed 1. special laws and regulations 2. Civil code (suppletory) Article 636 How legal easements for private interests are governed 1. agreement of interested parties not prohibited by law nor prejudicial to third persons 2. in default of (1), general or local laws and ordinances for general welfare 3. in default of (2), Civil Code Article 637 Legal Easements relating to waters 1. natural drainage of lands 2. natural drainage of buildings 3. easement on riparian banks for navigation, floatage, fishing, salvage 4. easement of a dam 5. easement of drawing water or for watering animals 6. easement of aqueduct 7. easement for the construction of a stop lock or sluice gate Art 637 – natural drainage of lands - prescribes by non-user for 10 years What lower estates are obliged to receive 1. water which naturally and without the intervention of man descends from the higher estates 2. stones and earth carried by the waters Art50, PD1607 1.

cannot construct works that will impede the natural flow unless he provides an alternative method of drainage 2. owner of the higher estate cannot make works that will increase the natural flow Duties of the servient estate 1. 2. 3. Duties 1. 2. 3.

cannot construct works that will impede the easement, divert the flow, and burden another tenement BUT he may regulate or control the descent of the water should he really cause an OBSTRUCTION, the easement may be extinguished by non-user and barred by prescription if the action to destroy is brought only after 10 years of the dominant estate he cannot make works that will INCREASE the burden may construct works preventing erosion if descending waters are result of artificial development or proceed from industrial establishment or overflow from irrigation dams – should pay compensation for loss or damage • a CONTRACT, onerous or otherwise, may extinguish the legal easement provided no injury to third persons

• NO indemnity required – if conditions in the article are complied with • If water that flows are collected from man-made lagoons – indemnity is required (compensation) Article 638 Easements along riparian banks • Urban – 3 meters • Agricultural – 20 meters • Forest – 40 meters • TOW PATH – 2 meters for animals, 1 meter for pedestrians •

All river banks are of public ownership except river banks which had already become of private ownership under the Siete Partidas Easements allowed 1. on banks of rivers, a public easement for: a. navigation b. floatage c. fishing d. salvage 2. on banks of navigable or floatable rivers, also the easement of TOW PATH – for the exclusive service of river navigation and floatage Payment of Indemnity 1. if land be of PUBLIC ownership – NO indemnity 2. if private – indemnity Effect if municipal ordinance make easement impossible – the authority of local governments to enact municipal ordinances is subject to the general limitation that the same shall not be repugnant to law Article 639 Easement for the construction, abutment, or buttress of a dam • payment of indemnity is required Article 640 Easements for drawing water or for watering animals 1. they can only be imposed for reasons of PUBLIC USE 2. must be in favor of a TOWN or VILLAGE 3. proper indemnity must be paid Article 641 • principal easement – for drawing water and watering animals • accessory easement – easement of right of way Requirements for such easement to exist 1. must be for PUBLIC USE 2. in favor of a town or village 3. sought not by one individual but the town or village 4. payment of proper indemnity 5. right of way – maximum of 10 meters Article 642 Article 643 Article 644 Article 645 Article 646 Legal Easement of Aqueduct • right to make water flow thru intervening estates in order that one may make use of said waters • easement of right of way does not necessarily include easement of aqueduct Requisites 1. indemnity must be paid – amount depends on duration and inconvenience caused 2. if for private interest – cannot be imposed on existing: a. buildings b. courtyards c. annexes d. out-houses e. orchards f. gardens

g.

can be imposed on other things – provided no injury to said properties There must be proof: a. That he can dispose of the water b. Water is sufficient for use for which it is intended c. Most convenient and least onerous to third persons d. Proper administrative permission be obtained Possible ways of making easement effective 1. open canal 2. covered or closed canal 3. tubes or pipes Obligations of the dominant owner 1. to keep the aqueduct in proper use or care 2. to keep on hand necessary materials for its use Right of servient estate to fence or build over the aqueduct as long as: 1. no damage is caused 2. or repairs or cleanings become impossible 3.

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for legal purposes the easement is considered continuous and apparent – to make the easement susceptible to acquisitive prescription fro the benefit of agriculture

Article 647 Requisites if construction of a stop lock or sluice gate 1. 2. 3. 4.

purpose must be for irrigation or improvement the construction must be on the estate of another damages must be paid third persons should not be prejudiced

Article 648 • PD 1607 will PREVAIL Article 649 Easement of Right of Way – allowed to pass over another’s land Requisites: 1. The property is surrounded by estates of others 2. No adequate outlet to a public highway 3. Payment of proper indemnity - use before indemnity is not allowed 4. Must be established at the point least prejudicial to the servient estate 5. The isolation must not be due to the proprietor’s act 6. Demandable only by the owner or one with a real right like a usufructuary •

Its existence does not depend on the consent of the co-owners being a legal easement and not a voluntary one • NOT entitled to easement for failure to meet the requisites • Mere inconvenience for the dominant estate is not enough to serve as basis for an easement of right of way • The burden of proving the existence to validly claim the right of way lies on the owner of the dominant estate Proper indemnity • PERMANENT – pay the value of the land occupied by the path plus damages • TEMPORARY – pay for the damages caused Classification of right of way 1. Private 2. Public

Easement in favor of the Government • Only the easement of a public highway, way, private way established by law, or any governmental canal or lateral thereof • It is necessary that the easement is pre-existing at the time of the registration of the land in order that the owner be compelled to respect it

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Easement not pre-existing – there should be proper expropriation proceedings and payment of just compensation

Article 650 Easement of right of way – point least prejudicial to the servient estate, distance be shortest to the public highway Article 651 Width of the Path • May be modified from time to time depending on the reasonable needs of the dominant estate • Pathway should be sufficient for use of automobiles(Larracos vs. Del Rosario) Article 652 Article 653 Rules – when land acquired by sale, easement of right of way • ENCLOSING estate is that of the grantor – grantee does NOT pay • ENCLOSED estate is that of the grantor – grantor MUST pay Article 654 Ownership, Repairs, Taxes • Ownership – servient estate, even permanent, thus he pays all the taxes • BUT the dominant estate a. Should pay for the repairs b. Pay proportionate share of taxes Article 655 Extinguishment of right of way a. Opening of a new road b. Joining the dominant estate with another with access to public highway. BUT the new access must be adequate and convenient. • Extinguishment NOT automatic, servient estate “may” demand. • NOT applicable to voluntary easement of right of way • If easement is temporary, no return of indemnity because damage had already been caused Article 656 Temporary easement of right of way • Proper indemnity must be given • “Indispensible” – great inconvenience is sufficient Article 657 Width of Right of way for passage of livestock 1. Animal path – 75 meters 2. Animal trail – 37 meters and 50 cm 3. Cattle – 10 meters • •

Payment of indemnity Can only be imposed for reasons of public use in favor of a town or village

Article 658 Easement of party wall – wall at the dividing line of the estates Article 659 How Presumption that a wall is a party wall be rebutted: 1. Title to the contrary 2. Exterior signs to the contrary 3. Proof to the contrary •

Title prevails over exterior sign

Article 660 Exterior signs • If the owner has signs in his favor, and some against him, they cancel each other, unless it can be shown from the purpose of the wall that it had been made for the exclusive benefit of one

Article 661 Presumption of party ditches or drains – rebuttable Article 662 Repairs and construction on party wall – proportionate contribution Renunciation can be made – UNLESS: 1. The repair had already been contracted for and made 2. He still uses the wall Requisites 1. Must be total or complete renunciation 2. Must be made voluntarily and full knowledge of the facts 3. Must be made before the expenses are incurred 4. Is made with the implied condition that the other owner should meke or pay for the repairs 5. Must be of both share in the wall and the land Article 663 • Indemnification must be made for damages Article 664 Right to increase height of the party wall • Must do so at his own expense • Pay for the necessary damages caused even if temporary • Bear the cost of maintenance of the portion added • Pay for the increased cost of preservation • Must reconstruct if original wall cannot bear the increased height • Must give additional space if wall be thickened • He will however be the EXCLUSIVE owner of the additions unless 665 is availed of Article 665 • May acquire part-ownership in the additions – pay the value at the time of acquisition Article 666 • Use by the co-owners of the wall Article 667 • Prohibition to make an opening thru the party wall – any window or aperture of any kind Article 668 Easement of Light and View • Positive – window is thru a party wall – prescription counted from time of the opening of the window • Negative – window thru one’s own wall – from the time of notarial prohibition upon the adjoining owner Article 669 Restricted windows – openings for light and not view Restriction 1. Maximum size – 30 sq. cm. 2. Must have an iron grating embedded in the wall 3. There must be a wire screen 4. Opening must be at the height of the ceiling beams or immediately inder the ceiling • If there be several openings – restrictions must be complied with for every opening • Unless the easement of light has been acquired, restricted windows may still be obstructed Sanctions in case of violations 1. Can ask for the reduction of size 2. May obstruct the light a. By constructing a higher building on his own land b. Or raising a blocking wall 3. If the wall becomes a party wall, he can close the window, unless there is a stipulation to the contrary

Article 670 Article 671 Rules for Regular Windows – can be opened provided that the proper distance are followed Proper Distances • Direct view – 2 meters between the wall having the windows and the boundary line • Side or oblique view – at least 60 cm. from the nearest edge of the window • It is permissible to build even up to the boundary line provided that no regular windows are opened (restricted windows are allowed) • Article also applies to terraces if there are railings Article 672 • Art 670 is applicable to building separated by public way or alley NOT LESS than 3 meters wide, subject to special regulations and ordinances Article 673 • A right has been acquired to have direct views – true servitude (restraint or abstention) Article 674 Drainage of Buildings 1. A person should let rain water fall on his own land and not on the adjacent land, even if he be a coowner of the latter 2. Rain water must be COLLECTED instead of just being allowed to drift to the adjacent or lower land Article 675 • Easement of receiving water falling from roofs – compulsory upon payment of indemnity Article 676 Conditions 1. Because of the enclosure, there is no adequate outlet for the rain water 2. The outlet must be at the point of easiest egress 3. Least possible damage 4. Payment of proper indemnity Article 677 • NO constructions near fortified places or fortresses Article 678 Construction of Aqueduct, Wells, Sewers, Etc • Follow the distances prescribed by the regulations and customs, of there be any, otherwise take precaution • No waiver or alteration by stipulation is allowed • A violator is liable for damages Article 679 Rules in planting of trees (distances) 1. Follow ordinances 2. Then customs 3. If both are not present, follow the minimum: a. Tall trees – 2 meters from boundary to center of tree b. Small trees or shrubs – 50 cm • Expected natural height is the criterion • Remedy for violation: demand uprooting of tree or shrub Article 680 Rules on Intrusion or Extensions of branches and roots • Branches – right to demand that they be cut off • Roots – may cut them off himself Prescription • Branches – does NOT prescribe if tolerated by invaded owner; if demand is made, prescription runs from the date of demand • Roots – imprescriptible unless notarial prohibition is made • Right of the owner of the tree- to cut the tree himself

Article 681 Rules as to fruits • If still hangs on the tree – owned by the tree owner • If naturally fallen – belong to the owner of the invaded land Article 682 Easement against nuisance Remedies: 1. If public nuisance a. Prosecution under the Penal Code or any local ordinance b. Civil action c. Abatement, without judicial proceedings 2. If private nuisance a. Civil action b. Abatement, without judicial proceedings Article 683 • Factories and shops may be maintained provided the least possible annoyance is caused to the neighborhood Article 684 Lateral and Subjacent support • Lateral – both the land being supported and the supported land are on the same plane • Subjacent – supported land is above the supporting land Remedies for infraction: • Injunction • Damages Article 685 • Any stipulation allowing excavation that cause danger to an adjacent land or building is VOID Article 686 • Applicability to future constructions Article 687 • Notify owners of adjacent land of any excavation • Notice is Not required if there is actual knowledge of the excavation • If there be notice, excavation should not deprive the other owners of lateral and subjacent support • Notice is required to enable adjoining owners to take proper precaution Article 688 Kinds of Voluntary Easements: 1. Predial – for the benefit of an estate 2. Personal • Only the owner or someone else, in the name of and with authority of the owner may establish a voluntary predial servitude – fro this is an act of ownership • Consent of usufructuary is needed to create perpetual voluntary easement • If owner with a resolutory title or annullable one – easement deemed extinguished at the resolution or annulment of right Article 689 • Naked owner may impose any servitude without consent of the usufruct, provided to injury is suffered by the latter Article 690 Rules when usufruct exists • The beneficial owner (usufruct) may by himself create a temporary easement compatible with the extent of his beneficial dominion • If easement is perpetual – both beneficial and naked owners must consent Article 691 • Consent of all co-owners are required to impose • Consent need not be simultaneous, may be given successively

• Consent given cannot later on be revoked • Consent given is binding upon successors Article 692 Governing rules for voluntary easements • If created by title (contract, will, etc.) – title governs. Civil code is suppletory. • If prescription – the form and manner it was acquired. Civil code is suppletory. • If created by prescription in a proper case – form and manner of possession. Civil code is suppletory. Article 693 • Servient estate has bound itself to pay for the maintenance of the easement – may renounce the property to the owner of the dominant estate • Renounce only the part affected by the easement, if whole property is affected the whole property should be renounced • Renunciation is made: must comply with the proper juridical form for the transmission of ownership