Property Reviewer Complete

+ Ad Majorem Dei Gloriam
PROPERTY NOTES
PRELIMINARY PROVISIONS
Art 414 All things which are or may e the o !ect o" a##ro#riation are consi$ere$ either% 1& Immo'a le or real #ro#erty( or )& Mo'a le or #ersonal #ro#erty& Whats a thing? any object that exists and is capable of satisfying some human needs includes both objects that are already possessed or owned and those that are susceptible of appropriation more comprehensi e term !than property"# as there are things which are not susceptible of appropriation and they are not included in the concept of property Whats property? refers to any thing which is already the object of appropriation or found in the possession of man $e%uisites of property &' (tility )apacity to satisfy some human wants *' +ubstanti ity ,uality of ha ing existence apart from any other thing -' Appropriability +usceptibility of being possessed by man Res communes or common things are not capable of appropriation in their entirety# although they may be appropriated under certain conditions in a limited way# and thereby become property in law o .lectricity# oxygen# etc Res nullius or a thing may ha e no owner because it has not yet been appropriated# or because it has been lost or abandoned by the owner' it constitutes property as long as it is susceptible of being possessed for the use of man o Wild animals# hidden treasure /hings cannot be considered as property when they are not susceptible of appropriation because of o legal impossibility !you cant sell your body while youre alive, at least not legally) or o physical impossibility !you cant own the moon, at least not yet)
$ights as property 0property1 is sometimes used to denote the thing with respect to which legal relations between persons exist 2 the res o er which rights !particularly ownership" may be exercised 2 and sometimes to the rights with respect to the thing either real or property What is a real right? $ight or interest belong to a person o er a specific thing Without a definite passi e subject against whom such right may be personally enforced Jus in re /he res of a real right may be o 3ersonal property !as in pledge and chattel mortgage" o $eal property !easement# real mortgage" o .ither personal or real !as in ownership# possession# usufruct" 4f the res of a real right is real property# the right itself is real property5 otherwise it is personal property )lassification of real rights based upon dominion &' Domino pleno 2 powers to enjoy and to dispose are united a' Dominion# ci il possession# hereditary right *' Domino menos pleno 2 powers to enjoy and dispose are separated a' +urface right# usufruct -' Domino limitado 2 powers to enjoy and to dispose# though united# are limited a' 6y a guaranty !mortgage# pledge" b' 6y a charge !easement" c' 6y a pri ilege !pre7emption# redemption" What is a personal right? $ight or power of a person /o demand from another as a definite subject /he fulfillment of the latters obligation' Jus in personam or jus ad rem 3ersonal right# or right of obligation# has the following elements8 &' Acti e subject !person in whom the right resides" *' 3assi e subject !person against whom the right is a ailable"
Mic9ey 4ngles Ateneo :aw *;&*# updated8 May &<# *;&* :ibrat8 =o stamping please>
PROPERTY NOTES
-' @'
?bject or prestation or the conduct !to gi e# to do# or not to do" Auridical or legal tie which binds the parties to the obligation 3ersonal $ight Definite acti e subject and a definite passi e subject ?bject always an incorporeal thing )reated by Btitle 3ersonal right sur i es the subject matter Directed against a particular person !actio in personam"
$eal $ight Definite acti e subject who has a right against all persons generally as an indefinite passi e subject ?bject is generally a corporeal thing )reated by Bmode and Btitle .xtinguished by the loss or destruction of the thing which it is exercised Directed against the whole world !actio in rem against -rd persons"
Whats the importance of the classification into mo ables or immo ables? 4n pri ate international law# general rule is that immo ables are go erned by the law of the country in which they are located# whereas mo ables are go erned by the personal law of the owner which in cases is the law of his nationality or his domicile 4n criminal law# usurpation of property can ta9e place only with real property' ?n the other hand# robbery and theft can be committed only against personal property 4n procedural law# actions concerning real property are brought in the $/) where the property is located# whereas actions in ol ing personal property are brought in the court where either the defendant or plaintiff resides' o Corcible entry and unlawful detainer for $.A: property o $eple in or manual deli ery for 3.$+?=A: 4n contracts# only real property can be the subject matter of real mortgage and antichresis# while only personal property can be the subject matter of mutuum# oluntary deposit# pledge 4n order that the donation of an immo able may be alid# it must be made in a public instrument' Cor mo ables# may be oral or in writing !if more than 3<;;;# need only to be in a pri ate instrument"
Cor prescription !@ and D years for mo ables5 &; and -; years for immo ables" /ransactions in ol ing real property must be recorded in the $egistry of property to affect -rd parties' =ot re%uired with personal property# except for chattel mortgage cases' Art 41* The "ollowing are immo'a le #ro#erty% 1& Lan$+ ,il$ings+ roa$s+ an$ constr,ctions o" all -in$s a$here$ to the soil( )& Trees+ #lants+ an$ growing "r,its+ while they are attache$ to the lan$ or "orm an integral #art o" an immo'a le( .& E'erything attache$ to an immo'a le in a "i/e$ manner+ in s,ch a way that it cannot e se#arate$ there"rom witho,t rea-ing the material or $eterioration o" the o !ect( 4& Stat,es+ relie"s+ #aintings or other o !ects "or ,se or ornamentation+ #lace$ in ,il$ings or on lan$s y the owner o" the immo'a le in s,ch a manner that it re'eals the intention to attach them #ermanently to the tenements( *& Machinery+ rece#tacles+ instr,ments or im#lements inten$e$ y the owner o" the tenement "or an in$,stry or wor-s which may e carrie$ on ina ,il$ing or on a #iece o" lan$+ an$ which ten$ $irectly to meet the nee$s o" sai$ in$,stry or wor-s( 0& Animal ho,ses+ #igeon1ho,ses+ eehi'es+ "ish #on$s or ree$ing #laces o" similar nat,re+ in cases their owner has #lace$ htem or #reser'es them with the intention to ha'e them #ermanently attache$ to the lan$+ an$ "orming a #ermanent #art o" it( the animals in these #laces are incl,$e$( 2& 3ertili4er act,ally ,se$ on a #iece o" lan$( 5& Mines+ 6,arries+ an$ slag $,m#s+ while the matter thereo" "orms #art o" the e$+ an$ waters either r,nning or stagnant( 7& 8oc-s an$ str,ct,res which+ tho,gh "loating+ are inten$e$ y their nat,re an$ o !ect to remain at a "i/e$ #lace on a ri'er+ la-e+ or coast( 19& :ontracts "or #, lic wor-s+ an$ ser'it,$es an$ other real rights o'er immo'a le #ro#erty& )lasses of immo able or real property !=4DA" &' 6y nature !cannot be carried from place to place" *' 6y incorporation !attached to an immo able in a fixed manner to be an integral part thereof" -' 6y destination !placed in an immo able for the utility it gi es" @' 6y analogy !by express pro ision of law because it is regarded as
PROPERTY NOTES
united to the immo able property" :ands# buildings# roads and constructions of all 9inds Must adhere to the soil 6uildings must be more or less of a permanent structure independent of and regardless of the ownership of the land on which it is erected since the law ma9es no distinction !so possible to mortgage building e en if in the land of another# since its separate from the land $oads# whether public or pri ate# are immo able $eal property treated by the parties as personal property o A building is by itself an immo able property irrespecti e of whether or not said structure and the land on which it is adhere to belong to the same owner o A alid real estate mortgate can be constituted only on the building erected on the land belonging to another o /he parties to a contract of chattel mortgage may# by agreement# treat as personal property that which by nature would be real property !estopped> +o they can be subject to a writ of reple in between parties" Eowe er# the chattel mortgage is not binding on third persons' /rees# plants and growing fruits 4mmo able while they are8 o Attached to the land# or o Corm an integral part of an immo able ?nce cut or uprooted# they become mo able Growing crops or fruits# or ungathered products or fruits# may be treated as personal property for the purposes of attachment# execution and the chattel mortgage law !+ibal FaldeG" When growing crops are sold and before they are e en har ested# the transaction is considered as sale of mo ables because it is a gi en that they are to be gathered or har ested for deli ery . erything attached to an immo able in a fixed manner Attachment must be such that o 4t cannot be separated from the immo able o Without brea9ing the material# or o Deterioration of the object
4f temporarily separated# will still be regarded as immo able if there is an intent to put them bac9 !but there are different opinions to this" 4ntent to attach permanently is essential 2 objects placed by humans with intention to permanent annexation lose their identity as mo ables
+tatues# reliefs# paintings# or other objects for use or ornamentation 4mmo able when8 o 3laced on the immo able by the owner of the latter# and o 4n such a manner that it re eals the intention to attach them permanently to the tenements =ot necessarily by him personally# can be by his agent 4f placed by a person not the owner li9e a lessee# the object will not attain the character of immo able unless such person acts as an agent of the owner Machinery# receptacles# instruments# or implements for an industry or wor9s 4mmo able only when8 o 3laced by the owner of the tenement or his agent o 4ndustry or wor9s must be carried on in a building or on a piece of land o Machinery# etc must tend directly to meet the needs of the said industry or wor9s Machinery which is mo able in its nature only becomes immobiliGed when placed in plant by the owner of the property or plant# but not when so placed by a tenant# a usufructuary# or any person ha ing only a temporary right !Davao Saw Mill v Castillo) o .xception !becomes immo able"8 &' +uch person acted as the agent of the owner# or *' :ease agreement states that the machines will pass o er to the lessor after the expiration of the lease agreement ! S !alde" case" Must be essential and be principal elements of an industry or wor9s to the business# not merely incidental to business !Mindanao #us Company v City $ssessor" o )ash registers# typewriters for hotels# restaurants# theaters are merely incidental# these businesses can continue on without them o Machineries of breweries used in the manufacture of li%uor# though mo able by nature# are immobiliGed because they are essential to said industries
PROPERTY NOTES
Cor purposes of taxation# it doesnt matter who placed the machines 2 the owner or mere lessee# as long as it is essential and principal elements of an industry' /he term Breal property may include things which should generally as personal property' 4t is a familiar phenomenon to see things classified as real property for purposes of taxation which on general principle might be considered personal property' !Meralco v Central #oard o% $ssessment $ppeals & in this case, the storage tan's were placed by Meralco, who wasnt the owner o% the land, but it was still considered immovable) Attachment or incorporation to immo able not essential# since they become immo able because of destination# what is essential is their utility
)ontracts for public wor9s and ser itudes and other real rights o er immo ables Where the res of a real right is real property# the right itself is real property' +o ownership is real property if the thing owned is immo able o :oan is real property by analogy if secured by a real estate mortgage Where it is personal property# the right itself is personal property o .xception8 case of contracts for public wor9s which are considered real property
Animal houses# pigeon houses# beehi es# fish ponds or breeding places of similar nature )onsidered immo able8 o 4n case their owner has placed them or preser es them o With the intention to ha e them permanently attached to the land o And forming a permanent part of it' o /he animals in these places are included' Must permanently form part of the land and so intended by the owner CertiliGers actually used on a piece of land 4mmo able when o Actually used on a piece of land CertiliGers 9ept in a barn are not immo able Mines# %uarries and slag dumps 4mmo able when o While the matter thereof forms part of the bed o Meaning# the matter thereof remains unse ered from the soil Waters# either running or stagnant# are classified as immo ables Doc9s and structures# though floating 4mmo able if o 4ntended by their nature and object o /o remain at a fixed place on o A ri er# la9e or coasts
:;APTER T<O% MOVA=LE PROPERTY

Art 410 The "ollowing things are $eeme$ to e #ersonal #ro#erty% 1& Those mo'a les s,sce#ti le o" a##ro#riation which are not incl,$e$ in the #rece$ing article( )& Real #ro#erty which y any s#ecial #ro'ision o" law is consi$ere$ as #ersonalty( .& 3orces o" nat,re which are ro,ght ,n$er control y science( an$ 4& In general+ all things which can e trans#orte$ "rom #lace to #lace witho,t im#airment o" the real #ro#erty to which they are "i/e$& Art 412 The "ollowing are also consi$ere$ as #ersonal #ro#erty% 1& O ligations an$ actions which ha'e "or their o !ect mo'a les or $eman$a le s,ms( )& Shares o" stoc- o" agric,lt,ral+ commercial an$ in$,strial entities+ altho,gh they may ha'e real estate& )lasses of mo able or personal property &' 3roperty not included in Art @&< *' )onsidered personal property by special pro ision of law -' Corces of nature brought under control by science @' 4n general# all mo able things a' Whether the property can be transported or carried from place to place5 b' Whether such change of lacation can be made without injuring the immo able to which the object may be attached# and c' Whether the object does not fall within any one of the
PROPERTY NOTES
<' H' I'
cases in Art @&< ?bligations and actions !personal rights# they ha ing a definite passi e subject" +hares of stoc9 ?ther incorporeal personal property a' 4ntellectual property such as copyrights# patents# etc
*'
3ri ate ownership or property owned by8 a' /he state in its pri ate capacity5 9nown as patrimonial property b' 3ri ate persons# either indi idually or collecti ely
3roperty is presumed to be +tate property in the absence of any showing to the contrary' !$egalian Doctrine" Whats dominion? &' =ot owned by the +tate but simply under its jurisdiction and administration for the collecti e enjoyment of all the people of the +tate *' 3urpose is to ser e the citiGens# not the +tate as juridical person -' $ises from the fact that the +tate is the juridical representati e of the social group Art 4)9 The "ollowing things are #ro#erty o" #, lic $ominion% 1& Those inten$e$ "or #, lic ,se+ s,ch as roa$s+ canals+ ri'ers+ torrents+ #orts an$ ri$ges constr,cte$ y the States+ an-s shores+ roa$stea$s an$ others o" similar character )& Those which elong to the State+ witho,t eing "or #, lic ,se+ an$ are inten$e$ "or some #, lic ser'ice or "or the $e'elo#ment o" the national wealth /hree 9inds of public dominion property &' 4ntended for public use )an be used by e erybody *' =ot for public use but intended for some specific public ser ice ?nly be used by duly authoriGed people# such as go ernment buildings# etc -' 4ntended for the de elopment of national wealth# e en if not employed for public use or ser ice Minerals# coal# oil# forests )harging of fees to the public does not affect the public character of the road or its character as property for public use' What are other property of similar character to those intended for public use? &' 3ublic streams# ri er channels# ri er beds# etc *' Accretions to the shores of the sea -' +ubmerged lands or lands reclaimed from the sea by the go ernment Mere reclamation of certain foreshore land does not con ert these
Art 415 Mo'a le #ro#erty is either cons,ma le or non1cons,ma le& To the "irst class elong those mo'a les which cannot e ,se$ in a manner a##ro#riate to their nat,re witho,t their eing cons,me$( to the secon$ class elong all the others& 4mportance of classification8 )onsumable goods cannot be the subject matter of a commodatum !unless for mere exhibition" 4n a mutuum# the subject matter is money or other consumable thing )onsumable Depends on nature of thing itself )ant be used in a manner appropriate to their nature without being consumed Cungible Depends on the intention or purpose of the parties )an be substitute by another thing of the same 9ind# %uantity and %uality Money# while characteriGed as a mo able# is generic and fungible' !#() v *ranco)
:;APTER T;REE% PROPERTY IN RELATION TO <;OM IT =ELON>S

Art 417 Pro#erty is either o" #, lic $ominion or o" #ri'ate ownershi# 3roperty is either of &' 3ublic dominion or property owned by the +tate !or its subdi isions" in its public or so ereign capacity and intended for public use and not for the use of the +tate as a juridical person
PROPERTY NOTES
@' <' H'
I'
inalienable natural resources of the state into alienable or disposable lands of the public domain' /here must be a law or proclamation officially classifying them such' :ands that disappeared into the sea )anals constructed on pri ate lands of pri ate ownership but the owner loses his proprietary right o er said canal through prescription by allowing the public to use it for transportation Coreshore lands when the sea mo ed toward an estate and the tide in ade it# the in aded property becomes foreshore and passes to the public realm 7 Coreshore land is the strip of land that lies between the high and low water mar9s :ot on which stairways were built for the use of the people as passageway to the highway $oads refer to those constructed by the national go ernment )anals constructed by pri ate persons o er pri ate lands are of pri ate ownership $oadstead is a place less sheltered or enclosed than a harbor where ships may ride at anchor
:ands of the public domain Does not include all lands of go ernment ownership but only so much of said lands as are thrown open to pri ate appropriation and settlement by homestead law
Go ernment lands 6roader term 4ncludes not only public lands# but alsoJ &' other lands of the go ernment already reser ed or de oted to public use# *' or subject to pri ate rights# -' and patrimonial lands Alienation of public agricultural land (nless pubic land is shown to ha e been reclassified and alienated by the +tate to a pri ate person# it remains part of the inalienable public domain All other lands are presumed to belong to the +tate Art 4)1 All other #ro#erty o" the State+ which is not o" the character state$ in the #rece$ing article+ is #atrimonial #ro#erty& 3atrimonial property 3roperty of the +tate owned by it in its pri ate or proprietary character =ot for public use# ser ice or de elopment of the national wealth May be ac%uired by pri ate indi iduals or juridical persons through prescription5 can be the object of an ordinary contract Art 4)) Pro#erty o" #, lic $ominion+ when no longer inten$e$ "or #, lic ,se or "or #, lic ser'ice+ shall "orm #art o" the #atrimonial #ro#erty o" the State& 3roperty of the =ational Go ernment =ot self7executing /here must be a formal declaration by the executi e !exercised by the 3resident" or possibly legislati e department that the property is no longer needed for public use or for public ser ice before the same can be classified as patrimonial property A positi e act declaring land as alienable and disposable is re%uired
3roperties of public dominion are outside of the commerce of man' Again# their purpose is to ser e the citiGens' /hey can not be the object of appropriation either by the +tate or pri ate persons' +oJ &' )annot be sold# leased or be the subject of contracts *' )annot be ac%uired by prescription# not e en by municipalities as against the +tate -' )annot be encumbered# attached# or be subject to le y and sold at public auction' @' )annot be burdened with easements <' )annot be registered under the land registration law and be the subject of a /orrens title 4nclusion of public dominion property does not confer title on the registrant 3ublic lands 3ublic lands Go ernment lands
PROPERTY NOTES
&' 3residential proclamation or executi e order *' Administrati e action -' 4n estigation reports of 6ureau of :ands in estigators @' :egislati e act or a statute !Sec o% D+,R v -ap" )lassification of public lands is the exclusi e prerogati e of the .xecuti e Department 2 courts ha e no authority !Sec o% D+,R v -ap) Abandonment cannot be inferred from non7use' !Roponggi case) /wo re%uisites for judicial confirmation of imperfect or incomplete title# under )A &@& &' open# continuous# exclusi e and notorious possession and occupation of the subject land by himself or through his predecessors7in7interest under a bona fide cliam of ownership since time immemorial or from Aune &*# &K@< *' classification of the land as alienable and disposable land of the public domain !Sec o% D+,R v -ap) (nclassified land? )onsidered as forest land !Sec o% D+,R v -ap)
3olitical subdi isions cannot register as their own any part of the public domain# unless it is first shown that a grant thereof has been made or possession has been enjoyed during the period necessary to establish a presumption of ownership' 4f the property is owned by the municipality in its public and go ernmental capacity# the property is public and )ongress has absolute control o er it' 4f it is owned in its pri ate or proprietary capacity# then it is patrimonial and )ongress has no control o er it' !page H-# de :eon"
3roperty of 3olitical +ubdi isions Cor pro inces# cities and municipalities# the con ersion must be authoriGed by law Municipal corporation has discretionary power to withdraw a street from public use and sell it' !Cebu ./ygen v #ecilles" Art 4). The #ro#erty o" #ro'inces+ cities+ an$ m,nici#alities is $i'i$e$ into #ro#erty "or #, lic ,se an$ #atrimonial #ro#erty& Art 4)4 Pro#erty "or #, lic ,se+ in the #ro'inces+ cities+ an$ m,nici#alities+ consist o" the #ro'incial roa$s+ city streets+ m,nici#al streets+ the s6,ares+ "o,ntains+ #, lic waters+ #romena$es+ an$ #, lic wor-s "or #, lic ser'ice #ai$ "or y sai$ #ro'inces+ cities or m,nici#alities& All other #ro#erty #ossesse$ y any o" them is #atrimonial an$ shall e go'erne$ y this :o$e+ witho,t #re!,$ice to the #ro'isions o" s#ecial laws& 3roperty of 3olitical +ubdi isions =ote that the articles spea9 of property for public use# indicating that properties for public ser ice are patrimonial' !ambulance of the local go ernment"
)ase doctrines8 /he use of subdi ision roads by the general public does not strip it of its pri ate character' /ransfer of ownership from the subdi ision owner7de eloper to the local go ernment is not automatic but re%uires a positi e act from the owner7 de eloper before the city or municipality can ac%uire dominion o er the subdi ision roads' (ntil and unless the roads are donated# ownership remains with the owner7de eloper' !0oodridge School, )nc v $R# Construction Co, )nc) Art 4)* Pro#erty o" #ri'ate ownershi#+ esi$es the #atrimonial #ro#erty o" the State+ #ro'inces+ cities+ an$ m,nici#alities+ consists o" all #ro#erty elonging to #ri'ate #ersons+ either in$i'i$,ally or collecti'ely& 3ri ate property &' 6elonging to pri ate persons# either indi idually or collecti ely *' 6elonging to the +tate and any of its subdi isions which are patrimonial in nature /here is nothing that will prohibit churches from alienating things classified into Bsacred# religious# and holy'
Art 4)0 <hene'er y #ro'ision o" law+ or an in$i'i$,al $eclaration+ the e/#ression ?immo'a le things or #ro#erty@ or ?mo'a le things or #ro#erty@ is ,se$+ it shall e $eeme$ to incl,$e+ res#ecti'ely+ the things en,merate$ in :ha#ter 1 an$ :ha#ter )& <hene'er the wor$ ?muebles or ?",rnit,re+@ is ,se$ alone+ it shall not e $eeme$ to incl,$e money+ cre$its+ commercial sec,rities+ stoc-s an$ on$s+ !ewelry+ scienti"ic or aristic collections+ oo-s+
PROPERTY NOTES
me$als+ arms+ clothing+ horses or carriages an$ their accessories+ grains+ li6,i$s an$ merchan$ise+ or other thing which $o no ha'e as their #rinci#al o !ect the ",rnishing or ornamenting o" a ,il$ing+ e/ce#t where "rom the conte/t o" the law+ or o" the in$i'i$,al $eclaration+ the contrary clearly a##ears&
<' H' I'
Abutendi Disponendi Findicandi
TITLE II A O<NERS;IP :;APTER ONE% O<NERS;IP IN >ENERAL

Art 4)2 Ownershi# may e e/ercise o'er things or rights ?wnership is theJ 4ndependent right of a person to the exclusi e enjoyment and control of a thing 4ncluding its disposition and reco ery subject only to the restrictions or limitations established by law and the rights of others 6eneficial ?wnership ?wnership recogniGed by law and capable of being enforced in court $ight to enjoyment in one person# legal title is in another =a9ed ?wnership .njoyment of all the benefits and pri ileges of ownership ?wnership may be exercised o er things or rights &' /hing 2 usually refers to corporeal property *' $ights 2 whether real or personal# res of rights may be corporeal or incorporeal Art 4)5 The owner has the right to en!oy an$ $is#ose o" a thing+ witho,t other limitations than those esta lishe$ y law& The owner has also a right o" action against the hol$er an$ #ossessor o" a thing in or$er to reco'er it& /he se en jus7es &' 3ossidendi *' (tendi -' Cruendi @' Accessionis
$ight to possess or jus possidendi right to hold a thing or enjoy a right !Art <*-" may be exercised in ones own name or in that of another &' $ight to use not necessarily included May be in the concept of an owner or a mere holder with the ownership pertaining to another $ight to possess does not always include the right to use *' Audgment of ownership may not include possession 3erson may be declared owner but he may not be entitled to possession which may be in the hands of another such as a tenant 6ut> /his doctrine may be in o9ed only where the actual possessor has some rights which must be respected -' Where claim to possession based on claim of ownership Where the ownership of a property was decided in a judgment# the deli ery of possession should be considered included in the decision where the defeated partys claim to the possession is based on his claim of ownership @' Duty of endor to deli er possession of thing sold )ontract of sale# endor bound not only to transfer ownership# but also deli er )onsidered deli ered only when endee has control and possession $ight to use and enjoy or jus utendi necessarily includes the right to transform and the right to exclude any person from the enjoyment and disposal thereof he may use such force as may be reasonably necessary to repel or pre ent an actual or threatened unlawful physical in asion or usurpation !Art @*K" he may enclose or fence his property !Art @-;" limited because he cannot ma9e use of such property in a manner to injure the rights of a third person $ight to recei e the fruits and accessories or jus %ruendi and accessionis ownership gi es the right by accession to e erything which is produced
PROPERTY NOTES
thereby !see art @@;" $ight to consume or jus abutendi right of the owner to consume a thing by its use 2 the use that extinguishes $ight to dispose or alienate or jus disponendi either totally !sale or donation" or partially !pledge# mortgage# etc" includes right not to dispose duty of endor to transfer ownership o endor must be the owner or authoriGed to sell thing o sufficient that he be the owner at the time of the deli ery of the thing sold only the absolute owner can pledge or mortgage ones property $ight to reco er possession andLor ownership or jus vindicandi true owner must resort to judicial process for the reco ery of the property he cannot ta9e the law into his own hands Actions a ailable to reco er possession andLor ownership &' $eco ery of personal property8 $emedy of $eple in or manual deli ery of personal property $e%uisites !$ule H;# $ules of )ourt"8 Applicant must show by his own affida it or that of some other person who personally 9nows the facts8 i' /hat the applicant is the owner of the property claimed# particularly describing it# ?$ is entitled to the possession thereof ii' /hat the property is wrongfully detained by the ad erse party# alleging the cause of detention thereof according to the best of his 9nowledge# information and belief Applicant has burden of pro ing his ownership or right of possession o er the property in %uestion 6oth a principal remedy !regain possession" and a pro isional remedy !allow the plaintiff to retain the thing wrongfully detained by another pendente lite" $eco ery of real property8
Corcible entry and unlawful detainer !accion interdictal) Corcible entry $e%uisites8 i' 4nstituted by person depri ed of possession ii' (nlawful depri ation of the possession of any land or building# by force# intimidation# threat# strategy or stealth iii' Ciled within & year from date of actual entry !but for cases of stealth and strategy# from date of 9nowledge of actual 9nowledge" i ' At the M/) where property is located (nlawful detainer $e%uisites8 i' 4nstituted by landlord# endor# endee or other person against who the possession of any land or building is unlawfully withheld ii' (nlawful possession after the expiration or termination of the right to hold possession !by irtue of contract# etc" iii' Ciled within & year from date of last demand to acate i ' at the M/) where property is located Cor unlawful detainer# it is essential that the plaintiffs supposed acts of tolerance must ha e been present right from the start of the possession which is later sought to be reco ered !FaldeG# jr )A" ?nly issue in ol ed in both is mere physical or material possession !possession de %acto"# not juridical or ci il possession !possession de jure" 3laintiff need only to allege and pro e prior possession de facto and undue depri ation thereof 4ts a %uieting process +ummary in nature !to sol e the problem %uic9ly and to protect the rights of the possessor" Difference between the two is the time when possession became unlawful 2 forcible entry8 time of entry5 unlawful detainer8 possession at first was legal# then became illegal 4f complaint fails to a er facts constituti e of forcible entry or unlawful detainer as when it does not state how entry was effected or how and when the dispossession started# the remedy should either be accion publiciana or an accion reinvindicatoria !FaldeG# jr )A"
*'
PROPERTY NOTES
Must be apparent in the face of the complaint !+armiento )A" Aurisdictional facts 2 what does a plaintiff ha e to allege? o Cor unlawful detainer i' 3laintiffs right o er property !describing the property" ii' 3rior lawful possession i' 4f by tolerance# acts of tolerance must ha e been present right from the start of the possession ii' 4f by lease# contractual agreement must be shown iii' 6ecame unlawful !by termination of lease contract or non7 payment of rents" i ' .xtrajudicial demand to acate i' 4f by non7payment# demand letter to 3AM $.=/+ and FA)A/. premises !bar %uestion" ' Within one year from last demand o )an the M/) rule on the issue of ownership in an ejectment case? Mes> 6ut only pro isionally' /he primal rule is that the principal issue must be that of possession# and that ownership is merely ancillary# in which case the issue of ownership may be resol ed but only for the purpose of determining the issue of possession' 4t must sufficiently appear from the allegations in the complaint that what the plaintiff really and primarily see9s is the restoration of possession' 4nferior court cannot adjudicate on the nature of ownership where the relationship of lessor and lessee has been sufficiently established in the ejectment case# unless it is sufficiently established that there has been a subse%uent change in or termination of the relationship between the parties' /he rule in forcible entry cases# but not in those for unlawful detainer# is that a party who can pro e prior possession can reco er such possession e en against the owner himself' Ee has the security that entitles him to remain on the property until he is lawfully ejected by a person ha ing a better right through an accion publiciana or accion reinvindicatoria Where the %uestion of how has prior possession hinges on the %uestion of who the real owner of the disputed portion is# the inferior court may resol e the issue of ownership and ma9e a declaration as to the owner' 6ut# it is merely pro isional# and does
not bar nor prejudice an action between the same parties in ol ing the title to the land' !Asis Asis Fda de Gue arra# *;;D" 3lenary action to reco er possession !accion publiciana) $e%uisites8 i' Must be within a period of ten years otherwise the real right of possession is lost ii' ?ne who claims to ha e a better right must pro e not only his right but also the identity of the property claimed iii' Ciled in the $/) where the property is located 4ssue in ol ed is possession de jure of realty independently of title !as compared to interdictal, possession de %acto" Audgment rendered here is conclusi e only on the %uestion of possession# not that of ownership Aurisdictional facts? &' $ight of plaintiff o er property *' 3eriod to bring interdictal has expired 3. Dont 9now na' Action to reco er possession based on ownership !accion reivindicatoria) $e%uisites8 i' $ight of plaintiff o er property ii' Ciled at the $/) where the property is located +ee9s reco ery of possession based on ownership# with claim of title 4ssue in ol ed is ownership which ordinarily includes possession# although a person may be declared owner but he may not be entitled to possession because the possessor has some rights which must be respected Action for recon eyance 2 prescribes in &; years from the point of the registration of the deed or the date of issuance of the certificate of title !chec9 boo9>"5 @ years in cases of fraud counted therefrom on date of issuance of the certificate of title o er the property o Action for recon eyance based on fraud and where plaintiff is in possession of the property subject of the acts does not prescribe' !:eyson 6ontuyan" o =68 +hould not ha e passed to a third person'
All three actions are actions in personam'
10
PROPERTY NOTES
4njunction as a remedy for reco ery of possession 4njunction is a judicial process whereby a person is re%uired to do or refrain from doing a particular thing' >eneral r,le8 )ourt should not by means of a preliminary injunction transfer property in litigation from the possession of one party to another' 4n order that a preliminary injunction may be granted at any time after the commencement of the action and before judgment8 $e%uisites8 i' there must exist a clear and positi e right o er the property in %uestion which should be judicially protected through the writ5 and ii' the acts against which the injunction is to be directed are iolati e of such right What if there is someone actually possessing the property sought to reco er? o 3erson not ordinarily allowed to a ail of remedy of preliminary pre enti e or mandatory injunction but must bring the necessary action for the reco ery of possession' 4njuncti e relief will not be granted to ta9e property out of the possession or control of one party and place it in that of another whose titleJ o Eas not been clearly established# or o Who did not ha e such possession or control at the inception of the case 3roper function is to maintain the status %uo 4njunction cannot be a substitute for other suits for reco ery of possession# hence# its denial will not bar the institution of the more appropriate remedy Why? Well# a writ of injunction is an e%uitable relief5 determination of title is a legal remedy 2 thats why When can injunction be allowed? 4n actions for forcible entry# the dispossessed plaintiff may file# within ten days from filing of the complaint# a motion for a writ of preliminary mandatory injunction to restore him in possession' o /he court MAM grant 4n order to pre ent the defendant from committing further acts of dispossession during the pendency of the case o 4ssue of ownership may not be put in issue
.jectment cases where the appeal is ta9en# the lessor is gi en the same remedy granted abo e' Where the actual possessor of the property who is admittedly the owner# see9s protection from repeated or further intrusions into his property' o . en if it turns out that he isnt the owner# he may still a ail of the e%uitable remedy of injunction to protect his possession' When there is a clear finding of right of ownership and possession of a land in fa or of the party who claims the subject property in possession of another is the undisputed owner as where the property is co ered by a /orrens title pointing to the party as the owner' !?f course# chec9 the issuance of the title if it was in bad faith" When urgency# expediency and necessity re%uire immediate possession as where material and irreparable injury will be done which cannot be compensated by damages'
Writ of possession as a remedy Writ of possession is an order whereby a sheriff is commanded to place a person in possession of a real or personal property# such as when a property is extrajudicially foreclosed' 4mproper to eject another from possession# unless sought in connection with a8 &' :and registration proceeding *' Coreclosure of mortgage+ pro ided# that no third person has inter ened !3=6 )A 2 in this case# a third person was occupying the lot subject to the writ' /he +) held that the an ex7parte petition for issuance of a possessory writ is not the judicial process referred to in Art @--"5 -' .xecution sales :imitations on the right of ownership :imited by &' by the +tates power to tax# police power# and eminent domain *' those imposed by law such as legal easement -' those imposed by the owner himself# such as oluntary easement @' those imposed by the grantor of the property on the grantee <' those arising from conflicts of pri ate rights which ta9e place in accession continua H' prohibition against the ac%uisition of pri ate lands by aliens
11
PROPERTY NOTES
i' Art 4)7 The owner or law",l #ossessor o" a thing has the right to e/cl,$e any #erson "rom the en!oyment an$ $is#osal thereo"& 3or this #,r#ose+ he may ,se s,ch "orce as ay e reasona ly necessary to re#el or #re'ent an act,al or threatene$ ,nlaw",l #hysical in'asion or ,s,r#ation o" his #ro#erty& 3rinciple of self7help $e%uisites8 i' 3erson defending must be the owner or lawful possessor ii' (se of reasonable force iii' ?nly be exercised at the time of an actual or threatened dispossession !no delay" i ' Actual or threatened physical in asion or usurpation which is unlawful $ead with Art &K of the )i il )ode' Art 4.9 E'ery owner may enclose or "ence his lan$ or tenements y means o" walls+ $itches+ li'e or $ea$ he$ges+ or y any other means witho,t $etriment to ser'it,$es constit,te$ thereon& $ight to enclose or fence :imited by existing ser itudes imposed on the land or tenement Art 4.1 The owner o" a thing cannot ma-e ,se thereo" in s,ch manner as to in!,re the rights o" a thir$ #erson& Art 4.) The owner o" a thing has no right to #rohi it the inter"erence o" another with the same+ i" the inter"erence is necessary to a'ert an imminent $anger an$ the threatene$ $amage+ com#are$ to the $amage arising to the owner "rom the "rom the inter"erence+ is m,ch greater& The owner may $eman$ "rom the #erson ene"ite$ in$emnity "or the $amage to him& +tate of necessity General rule8 a person cannot interfere with the right of ownership of another .xception8 +tate of necessity# but of course# ci il indemnification can be as9ed for $e%uisites8 ii'
interference is necessary to a ert an imminent danger and the threatened damage to actor or a third person !but the damage must be proportionate and reasonable" imminent danger or threatening damage must be much greater than the damage arising to the owner of the property
Art 4.. Act,al #ossession ,n$er claim o" ownershi# raises a $is#,ta le #res,m#tion o" ownershi#& The tr,e owner m,st resort to !,$icial #rocess "or the reco'ery o" the #ro#erty& Applies to both immo able and mo able property $e%uisites to raise the disputable presumption of ownership8 i' Actual !physical or material" possession of the property ii' 3ossession must be under claim of ownership Audicial process contemplated Means ejectment suit or rein idicatory action +/1parte petition for issuance of a possessory writ is not a judicial process# as it is non7litigious !3=6 )A" Art 4.4 In an action to reco'er+ the #ro#erty m,st e i$enti"ie$+ an$ the #lainti"" m,st rely on the strength o" his title an$ not on the wea-ness o" the $e"en$antBs claim& $e%uisites8 i' 3erson who claims that he has a better right to the property must satisfactorily pro e both ownership and identity ii' 6urden of proof lies on the party who substantially asserts the affirmati e of an issue iii' $eliance on strength of e idence and not upon the wea9ness of the opposing party 3arty who desires to reco er must fix the identity of the land claimed by describing the location# area and boundaries thereof o 4f a party fails to identify sufficiently and satisfactorily the land which he claims as his own# his action must necessarily fail o While the identity of the property must be established# it is not necessary for the plaintiff to establish the precise location and extent of the lands claimed or occupied by the defendant General rule8 where there is a conflict between the area and boundaries
12
PROPERTY NOTES
of a land# the latter pre ails' o An area delimited by boundaries properly identifies a parcel of land .xception8 where the boundaries relied upon do not identify the land beyond doubt o 4n such cases where there appears to be an o erlapping of boundaries# the actual siGe of the property gains importance' .%uiponderance of e idence? $ule for defendant' . idence to pro e ownership &' A /orrens title *' /itle from the +panish go ernment -' 3atent duly registered in the $egistry of 3roperty @' Deed of sale <' ?perating a business for nine years in defendants own name# without protest of plaintiff H' ?ccupation of a building for a long time without payment of rent I' :etter in which defendant recogniGed the ownership of the property by the plaintiff !estoppel" D' ?pen# continuous# exclusi e# ad erse and notorious actual possession and occupation of parcels of land 4ndicia of claim of ownership &' /ax declarations and tax receipts 2 only prima facie e idence of ownership or possession5 but they are good indicia of possession in the concept of owner )onclusi eness of certificates of title 4ndicates true and legal ownership of a pri ate land and should be accorded great weight as against tax declarations o but is not conclusi e if the land had already been pre iously registered Art 4.* No #erson shall e $e#ri'e$ o" the #ro#erty e/ce#t y com#etent a,thority an$ "or #, lic ,se an$ always ,#on #ayment o" !,st com#ensation& Sho,l$ this re6,irement e not "irst com#lie$ with+ the co,rts shall #rotect+ an$ in a #ro#er case+ restore the owner in his #ossession& 3ower of eminent domain
$e%uisites8 i' /a9ing must be done by competent authority ii' Must be for public use iii' ?wner paid just compensation i ' $e%uirement of due process of law must be obser ed +hould the re%uirements be not first complied with# restore the property to his possession' 6ut can be lost by estoppel or ac%uiescence Art 4.0 <hen any #ro#erty is con$emne$ or sei4e$ y com#etent a,thority in the interest o" health+ sa"ety or sec,rity+ the owner thereo" shall not e entitle$ to com#ensation+ ,nless he can show that s,ch con$emnation or sei4,re is ,n!,sti"ie$& )ondemnation or seiGure of property in exercise of police power $elates to use and enjoyment not ownership of property =o ta9ing of property in ol ed 3ersons affected not entitled to financial compensation Art 4.2 The owner o" a #arcel o" lan$ is the owner o" its s,r"ace an$ o" e'erything ,n$er it+ an$ he can constr,ct thereon any wor-s or ma-e any #lantations an$ e/ca'ations which he may $eem #ro#er+ witho,t $etriment to ser'it,$es an$ s, !ect to s#ecial laws an$ or$inances& ;e cannot com#lain o" the reasona le re6,irements o" aerial na'igation& +urface rights of a landowner $ight of the owner of a parcel of land to construct any wor9s or ma9e any plantations and exca ations on his land is subject to8 !+:.$$t" &' +pecial laws *' :ocal ordinances -' .xisting ser itudes or easements @' $easonable re%uirements of aerial na igation <' $ights of third persons :imitations imposed by special laws 4ncludes the regalian doctrine ?wnership of said land does not gi e him the right to extract or utiliGe the said minerals without the permission of the +tate to which said minerals belong
13
PROPERTY NOTES
Cor the loss sustained by such owner# he is entitled to just compensation under mining laws or expropriation proceedings
Accession fruits of# additions to# impro ements upon a thing includes building# planting and sowing allu ion# a ulsion# change of course of ri ers# formation of islands not necessary to the principal thing
Accessory things joined to# included with the principal for the latters embellishment# better use or completion necessary to principal thing
Art 4.5 ;i$$en treas,re elongs to the owner o" the lan$+ ,il$ing+ or other #ro#erty on which it is "o,n$& Ne'ertheless+ when the $isco'ery is ma$e on the #ro#erty o" another+ or o" the state or any o" its s, 1$i'isions+ an$ y chance+ one1 hal" thereo" shall e allowe$ to the "in$er& I" the "in$er is a tres#asser+ eh shall not e entitle$ to any share o" the treas,re& I" the things "o,n$ e o" interest to science or the arts+ the State may ac6,ire them at their !,st #rice+ which shall e $i'i$e$ in con"ormity with the r,le state$& Art 4.7 =y treas,re is ,n$erstoo$+ "or legal #,r#oses+ any hi$$en an$ ,n-nown $e#osit o" money+ !ewelry+ or other #recio,s o !ects+ the law",l ownershi# o" which $oes not a##ear& $e%uisites8 i' Deposit of money# jewelry or other precious objects ii' Eidden and un9nown iii' :awful ownership of which does not appear
example8 9ey of a house# bow of a iolin
Accession# not a mode of ac%uiring ownership Merely a conse%uence of ownership .xercise of the right of ownership +ince the law itself gi es the right# accession may# 4= A +.=+.# be considered as a mode of ac%uiring property under the law Ninds of accession 23 $ccession discreta .xtension of the right of ownership of a person to the products of a thing which belongs to such a person 4ncludes natural# industrial# and ci il fruits !Art @@&" 43 $ccession continua .xtension of the right of ownership to that which is incorporated or attached to a thing which belongs to such person May ta9e place8 With respect to real property Accession industrial !building# planting# sowing"5 or Accession natural !allu ion# a ulsion# change of ri er course# and formation of islands" With respect to personal property )onjunction !attachment# engraftment" )ommixtion or confusion +pecification Art 441 To the owner elongs% o The nat,ral "r,its(
:;APTER T<O% RI>;T O3 A::ESSION >ENERAL PROVISIONS SE:TION I A RI>;T O3 A::ESSION <IT; RESPE:T TO <;AT IS PRO8C:E8 =Y PROPERTY
Art 449 The ownershi# o" #ro#erty gi'es the right y accession to e'erything which is #ro$,ce$ there y+ or which is incor#orate$ or attache$ thereto+ either nat,rally or arti"icially& Accession defined Accession is the right of the owner of a thing# real or personal# to become the owner of e erything which is8 &' produced thereby# *' incorporated -' attached thereto# either naturally or artificially'
14
PROPERTY NOTES
o o
The in$,strial "r,its( The ci'il "r,its&
humans (sually culti ated for a purpose
Art @@& refers to accession discreta $ight of owner to the fruits General rule8 All fruits belong to the owner of a thing' .xception8 A person# other than the owner of a property# owns the fruits thereof8 &' possession in good faith by another !possessor entitled to the fruits recei ed before possession is legally interrupted" *' usufruct !usufructuary entitled to all the fruits of the property on usufruct" -' lease of rural lands !lessee gets fruits# lessor gets rents" @' pledge !pledgee gets fruits# etc but with the obligation to compensate what he recei es with those which are owing him" <' antichresis !creditor ac%uires the fruits of his debtors immo able# but with the obligation to apply them first to the interest and then to the principal amount of the credit" Art 44) Nat,ral "r,its are the s#ontaneo,s #ro$,cts o" the soil+ an$ the yo,ng an$ other #ro$,cts o" animals& In$,strial "r,its are those #ro$,ce$ y lan$s o" any -in$ thro,gh c,lti'ation or la or& :i'il "r,its are the rents o" ,il$ings+ the #rice o" leases o" lan$s an$ other #ro#erty an$ the amo,nt o" #er#et,al or li"e ann,ities or other similar income& =atural fruits /wo 9inds8 &' +pontaneous products of the soil !not through human culti ation or labor"# and *' Moung and other products of animals !chic9s# eggs# wool# mil9" /he second 9ind is considered as natural fruits whate er care or management# scientific or otherwise# may ha e been gi en by man since the law ma9es no distinction' 3uppies# while cute# bred by a professional breeder are still natural fruits
)i il fruits &' $ents of buildings *' 3rices of leases !rents" of lands and other property !including mo ables" -' Amount of perpetual or life annuities or other similar income Art 44. ;e who recei'es the "r,its has the o ligation to #ay the e/#enses ma$e y a thir$ #erson in their #ro$,ction+ gathering+ an$ #reser'ation& Art @@- applies when8 &' ?wner of property reco ers the property from a possessor and the possessor has not yet recei ed the fruits although they may ha e already been gathered or har ested5 or *' /he possessor has already recei ed the fruits but is ordered to return the same to the owner 4n both cases# the owner is obliged to reimburse the pre ious possessor for the expenses incurred by the latter' What if the possessor is in bad faith? /he owner cannot excuse himself from his obligation by alleging bad faith on the part of the possessor because the law ma9es no distinction When does good faithLbad faith come into play? When the goods ha e yet to be gathered' (nder @@K# a 63+ in bad faith has no right of reimbursement for expenses# nor to the fruits' ?nly for the necessary expenses of preser ation of land' What if the expenses exceed the fruits? /he owner must pay the expenses just the same because the law ma9es no distinction 6ut 9eep in mind that the owner only pays for the expenses for production# gathering and preser ation 2 not impro ement' Art 444 Only s,ch as are mani"est or orn are consi$ere$ as nat,ral or in$,strial "r,its&
4ndustrial fruits /hose products which are borne through the culti ation or labor of
15
PROPERTY NOTES
<ith res#ect to animals+ it is s,""icient that they are in the wom o" the mother+ altho,gh ,n orn& When natural fruits and industrial fruits deemed to exist &' 3lants which produce only one crop and then perish !rice# corn# sugar"8 from the time the seedlings appear from the ground *' 3lants and trees which li e for years and gi e periodic fruits !mangoes# oranges# epols"8 deemed existing until they actually appear on the plants or trees -' Animals8 beginning of the maximum ordinary period of gestation !when there can be no doubt that they are already in the womb of the mum" @' Cowls8 the fact of appearance of chic9s should retroact to the beginning of incubation
General rule on accession industrial Art @@< and @@H gi e the general rule that the accessory follows the principal' .xception8 Art &*; of the Camily )ode Definitions8 &' 6uilding 2 generic term for all architectural wor9 with roof built for the purpose of being used as mans dwelling# or for offices# clubs# theaters# etc' *' $epairs 2 putting of something bac9 into the condition in which it was originally in !not an impro ement" Art 44* <hate'er is ,ilt+ #lante$ or sown on the lan$ o" another an$ the im#ro'ements or re#airs ma$e thereon+ elong to the owner o" the lan$+ s, !ect to the #ro'isions o" the "ollowing articles& ?wner of land must be 9nown for this article to apply
SE:TION II A RI>;T O3 A::ESSION <IT; RESPE:T TO IMMOVA=LE PROPERTY

+ection * deals with one 9ind of accession continua# that of immo ables' 4t comprehends accession industrial !@@<7@<H" and accession natural !@<I7 @H<"' )ertain basic principles must be 9ept in mind8 &' Accession follows the principal ?wner of the principal ac%uires the ownership of the accession *' 4ncorporation or union must be intimate $emo al or separation cannot be effected without substantial injury to either or both -' .ffect of good faith and bad faith Good faith exonerates a person from puniti e liability but bad faith may gi e rise to dire conse%uences General rule8 person who acts in bad faith has no rights .xception8 person who is in good faith or bad faith is entitled to reimbursement for necessary expenses or preser ation !@<*" as well as expenses for culti ation# gathering and preser ation !@@-" @' .ffect of both parties in bad faith 6ad faith of one neutraliGes bad faith of the other =either party may demand as a matter of right the remo al of the impro ements against the will of the other for such right is a ailable only to a party in good faith where the other is in bad faith <' (njust enrichment
Art 440 All wor-s+ sowing+ an$ #lanting are #res,me$ ma$e y the owner an$ at his e/#ense+ ,nless the contrary is #ro'e$& Disputable presumptions as to impro ements8 &' /he wor9s# sowing# and planting were made by the owner' and *' /hey were made at the owners expense' Ee who alleges the contrary of these presumptions has the burden of proof' Art 442 The owner o" the lan$ who ma-es thereon+ #ersonally or thro,gh another+ #aintings+ constr,ctions or wor-s with the materials o" another+ shall #ay their 'al,e( an$ i" he acte$ in a$ "aith+ he shall also e o lige$ to the re#aration o" $amages& The owner o" the materials shall ha'e the right to remo'e them only incase he can $o so witho,t in!,ry to the wor- constr,cte$+ or witho,t the #lantings+ constr,ctions or wor-s eing $estroye$& ;owe'er+ i" the lan$owner acte$ in a$ "aith+ the owner o" the materials may remo'e them in any e'ent+ with a right to e in$emni"ie$ "or $amages& Applies when the owner of the property uses the materials of another' :andowner76uilderL3lanterL+ower ?wner of Materials
16
PROPERTY NOTES
Good faith :?763+ can ac%uire the materials pro ided there is full payment
6ad faith Ac%uire the materials pro ided he pays full payment plus damages
Good faith Ac%uire materials without paying for the alue thereof and entitled to damages due to defects or inferior %uality of materials 6ad faith +ame as when both are in good faith'
Good faith .ntitled to full payment for alue of materials# or May remo e materials pro ided there is no substantial injury to wor9 done Good faith .ntitled to full payment for alue of materials plus damages# or $emo e materials e en if there will be substantial injury to wor9 done plus damages 6ad faith :oses materials without indemnity and will be liable for damages due to defects or inferior %uality of materials 6ad faith
or sowe$( or he may com#el the ,il$er or #lanter to #ay the #rice o" the lan$+ an$ the sower the #ro#er rent& Art 4*1 In case o" the two #rece$ing articles+ the lan$owner is entitle$ to $amages "rom the ,il$er+ #lanter or sower& Art 4*) The ,il$er+ #lanter or sower in a$ "aith is entitle$ to reim ,rsement "or the necessary e/#enses o" #reser'ation o" the lan$& Art 4*. I" there was a$ "aith+ not only on the #art o" the #erson who ,ilt+ #lante$ or sowe$ on the lan$ o" another+ ,t also on the #art o" the owner o" s,ch lan$+ the rights o" one an$ the other shall e the same as tho,gh oth ha$ acte$ in a$ "aith& It is ,n$erstoo$ that there is a$ "aith on the #art o" the lan$owner whene'er the act was $one with his -nowle$ge an$ witho,t o##osition on his #art& Art 4*4 <hen the lan$owner acte$ in a$ "aith an$ the ,il$er+ #lanter or sower #rocee$e$ in goo$ "aith+ the #ro'isions o" article 442 shall a##ly& Whats good faith? )onsists in the8 &' Eonest belief that the land he is building# planting# sowing on is his or that by some title# he has a right to build# plant# sow on it5 and *' 4gnorance of any defect or flaw in his title Abrenica definition8 +tate of mind at the time he built the impro ements !3leasant ille case" (sually# it applies to building# planting# sowing in the concept of ownership' 6ut the +upreme )ourt has expanded its co erage to &' )ases wherein a builder had constructed impro ements with the consent of the owner *' 6uilders in good faith who relied on the consent of another whom they ha e mista9enly belie ed to be the owner of the land -' /o children who built impro ement on a land belonging to their parents with their parents consent !Macasaet case" :andowner 6uilderLplanterLsower
Art 445 The owner o" the lan$ on which anything has een ,ilt+ sown or #lante$ in goo$ "aith+ shall ha'e the right to a##ro#riate as his own the wor-s+ sowing or #lanting+ a"ter #ayment o" the in$emnity #ro'i$e$ "or in articles *40 an$ *45+ or to o lige the one who ,ilt or #lante$ to #ay the #rice o" the lan$+ an$ the one who sowe$+ the #ro#er rent& ;owe'er+ the ,il$er or #lanter cannot e o lige$ to ,y the lan$ i" its 'al,e is consi$era ly more than that that o" the ,il$ing or trees& In s,ch case+ he shall #ay reasona le rent+ i" the owner o" the lan$ $oes not choose to a##ro#riate the ,il$ing or trees a"ter #ro#er in$emnity& The #arties shall agree ,#on the terms o" the lease an$ in case o" $isagreement+ the co,rt shall "i/ the terms thereo"& Art 447 ;e who ,il$s+ #lants or sows in a$ "aith on the lan$ o" another+ loses what is ,ilt+ #lante$ or sown witho,t right to in$emnity& Art 4*9 The owner o" the lan$ on which anything has een ,ilt+ #lante$ or sown in a$ "aith may $eman$ the $emolition o" the wor-+ or that the #lanting or sowing e remo'e$+ in or$er to re#lace things in their "ormer con$ition at the e/#ense o" the #erson who ,ilt+ #lante$
17
PROPERTY NOTES
Good faith ?ption &8 3urchase whate er has been built# planted# or sown after paying indemnity which includes necessary# useful and luxurious expenses !if he wishes to appropriate the luxurious expenses" 3rohibited from offsetting or compensating the necessary and useful expense with the fruits recei ed by the 63 in good faith !=uguid case"
Good faith $ecei e indemnity for necessary# useful and luxurious expenses !depends on landowner" with right of retention o er the land without obligation to pay rent until full payment of indemnity $emo e useful impro ement pro ided it does not cause any injury !part of right of retention" 4f :? does not appropriate luxurious impro ements# 63+ can remo e the same pro ided there is no injury to the principal thing !land or building" $ight of retention only applies when :? chooses to appropriate !but does not apply if property of public dominion" /o purchase land at fair mar9et alue at time of payment when alue is not considerably more than that of the building or trees /o pay rent until the purchase has been made !/echnogas case" 4f 63 cannot pay purchase price of the land# :? can re%uire 63 to remo e whate er has been built# planted# or sown' 4f the alue of the land is considerably more than that of the building or trees# 63 cannot be compelled to buy the land' 4n such case# 63 will pay reasonable rent if :? does not choose option &' ?ption *8 /o oblige 63 to buy land or + to pay proper rent plus damages# regardless of aluation ?ption -8 /o compel 63+ to remo e or demolish wor9 done plus damages 6ad Caith Ac%uire whate er has been built# Good faith ?ption &8 /o ac%uire whate er has been built# planted or sown without paying indemnity except necessary expenses for preser ation of land and luxurious expenses !should :? want to ac%uire luxurious impro ement" plus damages
4f 63+ cannot pay the rent# :? can eject 63+ from the land' =ote8 $ental period of sower is only until he gathers what he sowed' Ee doesnt ha e the remedy of remo al' !+armiento" 6ad Caith :oses whate er has been built# planted or sown without indemnity and liable to pay damages .ntitled to reimbursement for necessary expenses for preser ation of land but no right to retention !and also @@-" =?/ .ntitled to reimbursement for useful expenses and cannot remo e useful impro ements e en if remo al will not cause injury !MW++ case" =ot entitled to luxurious expenses except when :? wants to ac%uire ! alue of which will be the one at the time :? enters into possession" .ntitled to remo e luxurious impro ements if it will not cause injury and :? does not want to ac%uire them' 4f it will cause injury and :? doesnt want to ac%uire# he gets it for free !Dean Del" ?bliged to pay for land or proper rent and pay damages ?bliged to remo e or demolish wor9 done at his expense and pay damages Good Caith 6all is in the court of the 63+'
?ption *8 /o oblige the 63 to buy the land or the + to pay the proper rent unless the alue of the land is considerably more than that of the building or trees :egal implication of planter sower8 ?wner cant compel sower to buy# only rent'
18
PROPERTY NOTES
planted or sown by paying indemnity plus damages
63+ can remo e whate er has been built# planted or sown regardless of whether or not it will cause injury and will be entitled to damages 4f :? ac%uires whate er has been built# planted or sown# 63+ must be indemnified the alue thereof plus damages 4f :? does not ac%uire# 63+ cannot insist on purchasing land
6ad Caith 6oth in good faith
6ad Caith
When will these rules not apply? &' When other pro isions of law go ern !agency# co7ownership# lease# usufruct" *' 4mpro ement constructed on ones own land subse%uently sold !person constructs a house on his own land and later sold land to another" 6ut# the pro ision on indemnity in @@D may be applied by analogy where the owner7builder later lost ownership of the land by irtue of a court judgment# considering that the primary intent of @@D is to a oid a state of forced co7ownership especially where the parties in the main agree that @@D and <@H are applicable and indemnity for the impro ements may be paid although they differ as to basis of the indemnity 7 whut?> !3ecson )A" -' 6uilder is a belligerent occupant @' )onstructions not in the nature of buildings <' 3roperty of public domain Art 4** I" the materials+ #lants or see$s elong to a thir$ #erson who has not acte$ in a$ "aith+ the owner o" the lan$ shall answer s, si$iarily "or their 'al,e an$ only in the e'ent that the one who ma$e ,se o" them has no #ro#erty with which to #ay& This #ro'ision shall not a##ly i" the owner ma-es ,se o" the right grante$ y Article 4*9& I" the owner o" the materials+ #lants or see$s has een #ai$ y the ,il$er+ #lanter or sower+ the latter may $eman$ "rom the lan$1owner the 'al,e o" the materials an$ la or& :andowner Good Caith ?ption &8 /o ac%uire whate er has been built# planted or sown pro ided there is payment of indemnity !which includes alue of what has been built# planter or sown plus alue of materials used" ?ption *8 /o oblige 63 to buy land or + to pay rent unless alue of 6uilderL3lanterL+ower Good Caith /o recei e indemnity from :? with right of retention o er land until full payment ?wner of the Materials Good Caith /o recei e indemnity from 63+ who is primarily liable for materials5 if 63+ is insol ent# to proceed against :? who is subsidiarily liable with no right of retention /o recei e indemnity from 63+ only !:? is not subsidiarily liable"
=ecessary expenses Made for the preser ation of the thing# or /hose which see9 to pre ent the waste# deterioration# or loss of the thing (seful expenses .xpenses which add alue to a thing or Augment is income When does good faith cease? Crom the moment defects in the title are made 9nown to the possessor by extraneous e idence or by suit for reco ery of the property by the true owner What happens if good faith ceases? !$osales case" :? can ac%uire impro ements built 3$4?$ to the notice to 63+ !when good faith ceased"# and indemnify 63+ of current mar9et alue at time of payment :? entitled to rent from the time 63+ good faith ceased
/o buy land or to pay proper rent
19
PROPERTY NOTES
land is considerably more than that of building or trees
with right of retention until full payment5 or /o remo e materials if there will be no injury on building or trees and will ha e material lien against 63+ for payment of materials 6ad Caith Whate er is the choice of :?# the ?M8 &' loses the materials in fa or of the 63+ and *' will ha e no right to recei e indemnity from 63+ nor :? 6ad Caith !+ince both 63+ and ?M are in bad faith# treat them both as if they are in good faith'" Whate er is the choice of the :?# ?M has right to recei e indemnity for alue of materials from 63+ only !:? has no subsidiary liability for alue of materials because ?M is considered in good faith only insofar as 63+ is concerned" ?M has no right to remo e materials e en if there will be no injury or damage Get indemnification from the 63+
Good Caith +ame
Good Caith
pay proper rent plus damages ?ption -8 /o oblige 63 to demolish or remo e what has been built# planted or sown plus damages 6ad Caith /o ac%uire what has been built# planted or sown by paying indemnity plus liable to pay damages 6ad Caith +ame
to pay damages to :? /o demolish or remo e what has been built# planted or sown and liable for damages Good Caith /o recei e indemnity from :? plus damages :iable to pay damages due to defects or inferior %uality of materials
Good Caith ?ption &8 /o ac%uire whate er has been built# planted or sown without paying indemnity except for necessary expenses for preser ation of land and luxurious expenses !should :? want to ac%uire luxurious impro ements" plus damages
6ad Caith 63+ loses what has been built# planted or sown plus liable for damages but is entitled to be indemnified for necessary expenses and luxurious expenses !should :? want to ac%uire luxurious impro ements" and has no right of remo al e en if remo al will not cause damage
Good Caith /? recei e indemnity of materials principally from 63+ and in case 63+ is insol ent# subsidiarily from :? Good Caith 6ad Caith +ame =o right to recei e indemnity for alue of materials from 63+ nor :? !who ends up owning buildings or trees" 4f ?M in bad faith# he doesnt get anything !unless 63+ in bad faith as well"
Art 4*0 In the cases reg,late$ in the #rece$ing articles+ goo$ "aith $oes not necessarily e/cl,$e negligence+ which gi'es right to $amages ,n$er article )120& Art 4*2 To the owners o" the lan$s a$!oining the an-s o" ri'ers elong the accretion which they gra$,ally recei'e "rom the e""ects o" the c,rrent o" the waters& Article treats of allu ion# a form of accession natural' Allu ion isJ Accretion which the ban9s of ri ers gradually recei e from the effects of the current of the waters and Which belong to the owners of lands adjoining the said ban9s $iparian owners are owners of lands adjoining the ban9s of ri ers' :ittoral owners are the owners of lands bordering the shore of the sea or
?ption *8 /o oblige 63 to buy the land or + to
/o buy the land or pay proper rent and liable
20
PROPERTY NOTES
la9e or other tidal waters Distinguished from accretion Allu ion is applied to the deposit of soil or to the soil itself Accretion is the act or process by which a riparian land gradually and impercepti ely recei es addition made by the water to which the land is contiguous $e%uisites i' Deposit or accumulation of soil or sediment must be gradual and impercepti e ii' Accretion results from the effects or action of the current of waters of the ri er !exclusi e wor9 of nature" iii' :and where accretion ta9es place must be adjacent to the ban9 of a ri er 4nstances when allu ion D?.+ =?/ ta9e place 1. Accretion because of sudden and forceful action li9e that of flooding 2. Accretion caused by human inter ention !would still be part of public domain 2 Fda de =aGerno )A" 3. Accretion caused by action of Manila 6ay !since Manila 6ay is not a ri er# its part of the sea" 4. Accretion on the ban9 of a la9e !li9e :aguna de 6ay" ha e been held to belong to the owners of the lands to which they are added .lements of ri er and their ownership A ri er is a compound concept consisting of three elements8 &' $unning waters *' /he bed -' /he ban9s +ince a ri er is a compound concept# it should ha e only one nature 2 it should either be totally public or completely pri ate' And since ri ers# whether na igable or not# are of public dominion !Art @*;"# it is implicit that all the three component elements be the same nature also'
-'
3romote the interests of agriculture for the riparian owner it in the best position to utiliGe the accretion
Accretions affecting lands registered under the /orrens system )n case o% diminution o% area $egistration does not protect the riparian owner against diminution of the area of his land through gradual changes in the course of the adjoining stream Accretions which the ban9s of ri ers may gradually recei e from the effect of the current become the property of the owners of the ban9s )n case o% increase o% area Although allu ion is automatically owned by the riparian owner# it does not automatically become registered land# just because the lot which recei es such accretion is co ered by a /orrens title +o# allu ial deposit ac%uired by a riparian owner of registered land by accretion may be subjected to ac%uisition through prescription by a third person# by failure of such owner to register such accretion within the prescribed period Art 4*5 The owners o" estates a$!oining #on$s or lagoons $o not ac6,ire the lan$ le"t $ry y the nat,ral $ecrease o" the waters+ or lost that in,n$ate$ y them in e/traor$inary "loo$s& $efers only to ponds and lagoons o =o application when the estate adjoins a cree9# stream# ri er or la9e o Cor purposes of allu ion# la9es are of the same category of cree9s# streams and ri ers 3ond o a body of stagnant water without an outlet o larger than a puddle and smaller than a la9e :agoon o small la9e# ordinarily of fresh water# o and not ery deep# fed by floods o the hollow bed of which is bounded by ele ations of land :a9e o 6ody of water formed in depressions of the earth o ?rdinarily fresh water o )oming from ri ers# broo9s or springs o )onnected with the sea by them
$easons for allu ion &' )ompensate the riparian owner for the danger of loss that he suffers because of the location of his land *' )ompensate him for the encumbrances and arious 9inds of easements to which his property is subject
21
PROPERTY NOTES
Eence# :aguna de 6ay is a la9e
Art 4*7 <hene'er the c,rrent o" a ri'er+ cree- or torrent segregates "rom an estate on its an- a -nown #ortion o" lan$ an$ trans"ers it to another estate+ the owner o" the lan$ to which the segregate$ #ortion elonge$ retains the ownershi# o" it+ #ro'i$e$ that he remo'es the same within two years& A ulsion isJ Also 9nown as %orce o% river Defined as the accretion which ta9es place when the current of a ri er# cree9 or torrent segregates from an estate on its ban9 a 9nown portion and transfers it to another estate 4n which case# the owner of the estate to which the segregated portion belonged# retains the ownership thereof Also refers to the segregation or transfer itself of a 9nown portion of land to another by the force of the current Allu ion Deposit of soil is gradual Deposit of soil belongs to the owner of the property where the same was deposited /he soil cannot be identified A ulsion Deposit is sudden or abrupt /he owner of the property from which a part was detached retains the ownership thereof Detached portion can be identified
coming form the estate from which it was detached 4f only soil is remo ed by water and spread o er anothers land such that no 9nown portion can be said to exist which can be remo ed# there is no a ulsion )urrent o )ontinuous mo ement of a body of water# often horiGontal# in a certain direction $i er o =atural surface stream of water of considerable olume o 3ermanent or seasonal flow o .mptying into an ocean# la9e or other body of water )ree9 o +mall islet extending further into land o =atural stream of water normally smaller than and ofter tributary to a ri er /orrent o Fiolent stream of water o A flooded ri er or one suddenly raised by a hea y rain and descending a steep incline o $aging flood or rushing stream of water
What if a portion of land is transferred# but not by a current of water# but by a landslide? Mou can apply Art @<K# by analogy' $emo e it within two years /he former owner preser ers his ownership of the segregated portion pro ided he remo es !not merely claims" the same within the period of * years 4t would seem that his failure to do so would ha e the effect of automatically transferring ownership o er it to the owner of the other estate :aw doesnt ma9e a distinction between pri ate land and land of the public domain Why two years? o +egregated portion is usually ery small and it is thus useless to the original owner o +imilar to uprooted trees !but there# H months" o 4f the owner of the separated portion retains his ownership
Where there had been accretions to the land adjacent to the ban9 of a ri er# the riparian owner does not lose the ownership of such accretions e en if they are separated by a ulsion from the land by the sudden change of the course of the ri er
$e%uisites i' +egregation and transfer must be caused by the current of a ri er# cree9 or torrent ii' +egregation and transfer must be sudden or abrupt iii' 3ortion of land transported must be 9nown or identifiable . en if the detached portion be placed on top of another land instead of being adjoined to it# Art @<K still applies as long as it can be identified as
22
PROPERTY NOTES
without any %ualification# he would ha e a right to enter the other estate at any time# which wouldnt be con enient to the other estate After a long period# the detached potion may become permanently attached to the new land so itll be hard to remo e
Art 409 Trees ,#roote$ an$ carrie$ away y the c,rrent o" the waters elong to the owner o" the lan$ ,#on which they may e cast+ i" the owners $o not claim them within 0 months& I" s,ch owners claim them+ they shall #ay the e/#enses inc,rre$ in gathering them or #,tting them in a sa"e #lace& Applies only to uprooted trees 4f a 9nown portion of land with trees standing thereon is carried away by the current to another land# Art @<K go erns /he original owner claiming the trees is liable to pay the expenses incurred by the owner of the land upon which they ha e been cast in gathering them or putting them in a safe place )laim must be done in H months o 4f not# the trees will belong to the owner of the land where the trees ha e been cast to o +ix months is a condition precedent and not a prescription period o After a claim is made within H months an action may be brought within the period pro ided by law for prescription of mo ables
4n proportion to the area lost !if only one owner lost a portion of his land# the entire old bed should belong to him' 4f more than two# then in proportion to the area lost" $bandoned5 /he words may be construed to mean that where there is abandonment by the go ernment o er the old bed# the owner of the in aded land automatically ac%uires ownership of the same without any formal act on his part' !$emember that ri ers are property of public dominion" o /he change in the course of the ri er does not ipso %acto result in the abandonment of the ri er but must be the reason for its abandonment# in other words# the ri er is abandoned because of or through the natural change of the water /he owners of land adjoining the old bed are gi en the preferential right to ac%uire the old bed by paying the alue thereof o /he indemnification shall not exceed the alue of the area occupied by the new bed !in case of disagreement# bring the case to court'" o
$e%uisites i' /here must be a natural change in the course of the waters of the ri er ii' )hange must be abrupt or sudden =68 :aw spea9s of change of ri er course' 4f a ri er simply dries up or disappears# the bed left dry will belong to public dominion !Art <;*" Art 40) <hene'er a ri'er+ changing its co,rse y nat,ral ca,ses+ o#ens a new e$ thro,gh a #ri'ate estate+ this e$ shall ecome o" #, lic $ominion& =68 /his article tal9s of the new ri erbed' Art @H& tal9ed about the old ri erbed' /he bed of a public ri er or stream is of public ownership !Art <;*" 4f the ri er changes its course and opens a new bed# this bed becomes of public dominion e en if its on pri ate property Aust as the old had bed had been of public dominion before the abandonment# the new ri erbed shall li9ewise be of public dominion =o distinction whether a ri er is na igable or floatable or not
=68 Cor trees# you need only ):A4M within the period' Cor land !Art @<K"# you ha e to $.M?F. them within * years Art 401 Ri'er e$s which are a an$one$ thro,gh the nat,ral change in the co,rse o" the waters i#so "acto elong to the owners whose lan$s are occ,#ie$ y the new co,rse in #ro#ortion to the area lost& ;owe'er+ the owners o" the lan$s a$!oining the ol$ e$ shall ha'e the right to ac6,ire the same y #aying the 'al,e thereo"+ which 'al,e shall not e/cee$ the 'al,e o" the area occ,#ie$ y the new e$& $i er beds abandoned through natural change in the course of waters /hey belong to owners occupied by the new course of the ri er
23
PROPERTY NOTES
Art 40. <hene'er a c,rrent o" a ri'er $i'i$es itsel" into ranches+ lea'ing a #iece o" lan$ or #art thereo" isolate$+ the owner o" the lan$ retains his ownershi#& ;e also retains it i" a #ortion o" lan$ is se#arate$ "rom the estate y the c,rrent& =68 /his article does not refer to the formation of islands through accretion !thats in Art @H@ and @H<"'
b' c'
d' /his article refers to the formation of an island caused by a ri er di iding itself into branches resulting in8 &' /he isolation of a piece of land or part thereof# or *' /he separation of a portion of land from an estate by the current !see Art @<K" /he owner preser es his ownership of the isolated or separated property
culti ate and de elop the island !in other words, sa pina'amalapit na may ari ng lupa) 4f it is in the middle of the ri er# the island is di ided longtitudinally in hal es 4f the island formed is longer than the property of the riparian owner# the latter is deemed ipso jure to be the owner of that portion which corresponds to the length of that portion of his property along the margin of the ri er 4f a new island is formed between an existing island and an opposite ban9# the owner of the older island is considered a riparian owner together with the owner of the land adjoining the ban9 for the purpose of determining ownership of the island Ee must of course register the land# else it be subject to ad erse possession of another
Art 404 Islan$s which may e "orme$ on the seas within the !,ris$iction o" the Phili##ines+ on la-es+ an$ on na'iga le or "loata le ri'ers elong to the State& Art 40* Islan$s which thro,gh s,ccessi'e acc,m,lation o" all,'ial $e#osits are "orme$ in non1na'iga le an$ non1"loata le ri'ers+ elong to the owners o" the margins or an-s nearest to each o" them+ or to the owners o" oth margins i" the islan$ is in the mi$$le o" the ri'er+ in which case it shall e $i'i$e$ longit,$inally in hal'es& I" a single islan$ th,s "orme$ e more $istant "rom one margin than "rom the other+ the owner o" the nearer margin shall e the sole owner thereo"& $ules of ownership of islands form through allu ion &' An island belongs to the +tate as part of its patrimonial property if it is formed8 a' ?n the seas within the jurisdiction of the 3hilippines b' ?n la9es c' ?n na igable or floatable ri ers 4f it is formed in non7na igable and non7floatable ri ers8 a' 4t belongs to the nearest riparian owner or owner of the margin or ban9 nearest to it as he is considered in the best position to
=a igable ri er o ?ne which forms in its ordinary condition by itself or by uniting with other waters a continuous highway o er which commerce is or may be carried on o /est8 whether it is na igable in fact# if it is used or susceptible of being used as a highway of commerce# for trade and tra el in the usual and ordinary modes o A na igable ri er is one that is 0floatable1# that is# a ri er admitting floats i' Eence# a floatable stream is a na igable stream !Macatangay +ecretary of 3ublic Wor9s 2 in this case# natangay si Macatangay3 6ehehe7"
SE:TION T;REE A RI>;T O3 A::ESSION <IT; RESPE:T TO MOVA=LE PROPERTY

Art 400 <hene'er two mo'a le things elonging to $i""erent owners are+ witho,t a$ "aith+ ,nite$ in s,ch a way that they "orm a single o !ect+ the owner o" the #rinci#al thing ac6,ires the accessory+ in$emni"ying the "ormer owner thereo" "or its 'al,e& Adjunction isJ /he union of two mo able things belonging to different owners 4n such a way that they form a single object
*'
24
PROPERTY NOTES
6ut one of the component things preser es its alue
)haracteristics of adjunction 4n order that adjunction may ta9e place# it is necessary that8 &' /here are two mo ables belonging to different owners *' /hey are united in such a way that they form a single object5 and -' /hey are so inseparable that their separation would impair their nature or result in substantial injury to either 4n determining the right of the parties in adjunction# regard is had only to the things joined and not to the persons' 6ut where there is a mere change of form or alue which does not destroy the identity of the component parts# the original owners may demand their separation !Art @HK"
*' -' @'
for its use or perfection' !rule of importance and purpose" ?f greater alue# if they are of une%ual alues5 ?f greater olume# if they are of an e%ual alue5 /hat of greater merits ta9ing into consideration all the pertinent legal pro isions !see Art @I<" applicable as well as the comparati e merits# utility and olume of their respecti e things /he special rule regarding paintings# etc is based on the consideration that what is painted is of greater alue that the board or can as inasmuch as the exceptions mentioned are specified# its pro ision can not be applied by analogy to cases of adjunction of similar nature which are deemed excluded' !+ee Art @HI and @HD"
Ninds of adjunction &' inclusion or engraftment !such as when a diamond is set on a gold ring" *' soldering or soldadura !when led is united or fused to an object made of lead" a' ferrumincaion !if both the accessory and principal are of the same metal" b' plumbatura !if they are of different metals" -' writing or escritua !when a person writes on paper belonging to another" @' painting or pintura !when a person pains on can as of another" <' wea ing or tejido !when threads belonging to different owners are used in ma9ing textile" Art 402 The #rinci#al thing+ as etween two things incor#orate$+ is $eeme$ to e that to which the other has een ,nite$ as an ornament+ or "or its ,se or #er"ection& Art 405 I" it cannot e $etermine$ y the r,le gi'en in the #rece$ing article which o" the two things incor#orate$ is the #rinci#al one+ the thing o" the greater 'al,e shall e so consi$ere$+ an$ as etween two things o" e6,al 'al,e+ that o" greater 'ol,me& In #ainting an$ sc,l#t,re+ writings+ #rinte$ matter+ engra'ing an$ lithogra#hs+ the oar$+ metal+ stone+ can'as+ #a#er or #archment shall e $eeme$ the accessory thing& /ests to determine the principal in adjunction 4n the order of application# the principal is that8 &' /o which the other !accessory" has been united as an ornament or
Art 407 <hene'er the things ,nite$ can e se#arate$ witho,t in!,ry+ their res#ecti'e owners may $eman$ their se#aration& Ne'ertheless+ in case the thing ,nite$ "or the ,se+ em ellishment or #er"ect o" the other+ is m,ch more #recio,s than the #rinci#al thing+ the owner o" the "ormer may $eman$ its se#aration+ e'en tho,gh the thing to which is has een incor#orate$ may s,""er some in!,ry& When separation of things united are allowed &' Whene er the separation can be done without injury *' When the accessory much more precious# the owner of the accessory may demand its separation e en though the principal thing may suffer some injury ?wner who made or caused the union or incorporation shall bear the expenses for separation -' When principal acted in bad faith# owner of accessory may separate e en if the principal thing be destroyed Art 429 <hene'er the owner o" the accessory thing has ma$e the incor#oration in a$ "aith+ he shall lose the thing incor#orate$ an$ shall ha'e the o ligation to in$emni"y the owner o" the #rinci#al thing "or the $amages he may ha'e s,""ere$& I" the one who has acte$ in a$ "aith is the owner o" the #rinci#al thing+ the owner o" the accessory thing shall ha'e a right to choose etween the "ormer #aying him its 'al,e or that the thing elonging to him e se#arate$+ e'en tho,gh "or this #,r#ose it e necessary to $estroy the #rinci#al thing( an$ in oth cases+ ",rthermore+ there shall e in$emnity "or $amages&
25
PROPERTY NOTES
I" either one o" the owners has ma$e the incor#oration with the -nowle$ge an$ witho,t the o !ection o" the other+ their res#ecti'e rights shall e $etermine$ as tho,gh oth acte$ in goo$ "aith& A8DCN:TION !accessory follows principal" $ights of ?wner of 3rincipal $ights of ?wner of Accessory Good Caith Good Caith Ac%uires the accessory# :oses the accessory but has a right indemnifying the owner of the alue to indemnity for the alue of the thereof accessory .xcept8 When alue of accessory is much more precious than the principal thing !@HK" .xcept8 When still separable# may demand separation !no adjunction anyway" Good faith Ac%uires the accessory and has a right to indemnity for damages he may ha e suffered 6ad faith 3ays for the accessory plus damages +eparate thing e en if it is destroyed plus pay damages 6ad Caith As if both are in good faith Eas a right to demand separation e en if it causes injury to the principal thing !@HK" May demand separation !@HK! 6ad faith :oses the thing and has liability for damages Good faith ?ption &8 Demand the owner of the principal to pay for the alue of the accessory plus damages ?ption *8 Demand separation e en if it causes the destruction of the principal thing plus damages 6ad Caith
ac6,ire a right #ro#ortional to the #art elonging to him+ earing in min$ the 'al,e o" things mi/e$ or con",se$& Art 42. i" y the will o" only one owner+ ,t in goo$ "aith+ two things o" the same or $i""erent -in$s are mi/e$ or con",se$+ the rights o" the owners shall e $etermine$ y the #ro'isions o" the #rece$ing article& I" y the one who ca,se$ the mi/t,re or con",sion acte$ in a$ "aith+ he shall lose the thing elonging to him th,s mi/e$ or con",se$+ esi$es eing o lige$ to #ay in$emnity "or the $amages ca,se$ to the owner o" the thing with which his own was mi/e$ Definition of mixture /a9es place when two or more things belonging to different owners are mixed or combined With the respecti e identities of the component parts destroyed or lost /wo 9inds o )ommixtion !for solids" o )onfusion !for li%uids" $ules go erning mixture !co7ownership" &' 4f the mixture by will of owners# their rights shall be go erned by their stipulations' 4n the absence of any stipulation# each owner ac%uires a right or interest in the mixture in proportion to the alue of his materials as in co7ownership' MIETCRE ?wner who caused mixture ?wner of the thing mixed into Good faith or by chance Good faith or by chance .ach owner ac%uires a right proportional to the part belonging to him# bearing in mind the alue of the things mixed or confused 6ad faith :oses the thing mixed or confused plus liable to pay damages .ach owner ac%uires a right proportional to the part belonging to him# bearing in mind the alue of the things mixed or confused Good faith Ac%uires the thing mixed plus entitled to damages
Art 421 <hene'er the owner o" the material em#loye$ witho,t his consent has a right to in$emnity+ he may $eman$ that this consist in the $eli'ery o" a thing e6,al in -in$ an$ 'al,e+ an$ in all other res#ects+ to that em#loye$+ or else in the #rice thereo"+ accor$ing to e/#ert a##raisal& Art 42) i" y the will o" their owners two things o" the same or $i""erent -in$s are mi/e$+ or i" the mi/t,re occ,rs y chance+ an$ in the latter case the things are not se#ara le witho,t in!,ry+ each owner shall
Art 424 One who in goo$ "aith em#loys the material o" another in whole or in #art in or$er to ma-e thing o" a $i""erent -in$+ shall a##ro#riate the thing th,s trans"orme$ as his own+ in$emni"ying the owner o" the material "or its 'al,e&
26
PROPERTY NOTES
I" the material is more #recio,s than the trans"orme$ thing or is o" more 'al,e+ its owner+ may+ at his o#tion+ a##ro#riate the new thing to himsel"+ a"ter "irst #aying in$emnity "or the 'al,e o" the thing+ or $eman$ in$emnity "or the material& I" in the ma-ing o" the thing a$ "aith inter'ene$+ the owner o" the material shall ha'e the right to a##ro#riate the wor- to himsel" witho,t #aying anything to the ma-er+ or to $eman$ o" the latter that he in$emni"y him "or the 'al,e o" the material an$ the $amages he may ha'e s,""ere$& ;owe'er+ the owner o" the material cannot a##ro#riate the wor- in case the 'al,e o" the latter+ "or artistic or scienti"ic reasons+ is consi$era ly more than that o" the material& Definition of specification /a9es place whene er the wor9 of a person is done on the material of another +uch material# in a conse%uence of the wor9 itself# undergoing a transformation' 4mparting of a new form to the material belong to another# or ma9ing of the material of another into a different 9ind o Clour made into bread# grapes into wine# clay into bric9s# lo e into hate !jo9e' (ute', ang boring ng (roperty3 )% youve made it this %ar, good %or you7" SPE:I3I:ATION !accessory follows principal" ?wner of material 6uilder Good faith Good faith $ight to indemnification for the alue +hall appropriate the thing thus of the material' transformed as his own# indemnifying the owner of the material for its alue' +/cept8 Material more precious than transformed thing' ?ption &8 Appropriate the new thing to himself# indemnifying the builder for his wor9' ?ption *8 Demand indemnity for the material' Good faith /o be indemnified'
?ption &8 Appropriate the wor9 to himself without paying indemnity' !Damages also?" +/cept8 When for artistic or scientific reasons# the thing has a alue considerably higher than the material' /he owner of the material cannot appropriate the wor9' ?ption *8 Demand indemnity for material plus damages'
:oses his wor9' =o right to indemnity' 3ay for the materials and damages'
Must pay indemnity and damages'
Art 42* In the #rece$ing articles+ sentimental 'al,e shall e $,ly a##reciate$& Adjunction# mixture and specification distinguished Adjunction Mixture At least two things At least two things )omponent parts retain or preser e their nature Accessory follows principal /hings mixed may or may not retain their respecti e original nature )o7ownership results +pecification May be only one ting whose form is changed )omponent parts retain or preser e their nature Accessory follows principal
:;APTER T;REE% FCIETIN> O3 TITLE

ART 420 <hene'er there is a clo,$ on title to real #ro#erty or any interest therein+ y reason o" any instr,ment+ recor$+ claim+ enc,m rance or #rocee$ing which is a##arently 'ali$ or e""ecti'e ,t it is in tr,th an$ in "act in'ali$+ ine""ecti'e+ 'oi$a le or ,nen"orcea le+ an$ may e #re!,$icial to sai$ title+ an action may e ro,ght to remo'e s,ch clo$ or to 6,iet the title& An action may also e ro,ght to #re'ent a clo,$ "rom eing cast ,#on title to real #ro#erty or any interest therein& /itle to real property refers to that upon which ownership is based'
Appropriate the same after indemnity for material' 6ad faith
27
PROPERTY NOTES
3laintiff in action for %uiet title dies# should it be dismissed? =o' 4ts a %uasi in rem suit' Defendants defenses8 prescription# lac9 of jurisdiction of court )loud on title +emblance of title# either legal or e%uitable# or a claim or a right in real property# appearing in some legal from# but which is in fact# in alid or which would be ine%uitable to enforce $e%uisites i' 4nstrument# record# claim# encumbrance or proceeding which is apparently alid or effecti e# ii' +uch instrument is in truth and in fact# in alid# ineffecti e# oidable or unenforceable# or has been extinguished or terminated# or has been barred by extincti e prescription iii' +uch instrument may be prejudicial to said title Action to %uiet title $e%uisites8 i. 3laintiff or complainant has a legal or an e%uitable title to# or interest in the real property subject of the action ii. /he deed# claim or proceeding claimed to be casting cloud on his title must be shown to be# in fact# in alid or inoperati e despite its prima facie appearance of alidity or legal efficacy Action to %uiet title 3urpose to put an end to troublesome litigation in respect to the property in ol ed $emedial action in ol ing a present ad erse claim &st paragraph of Art @IH Action to remo e a cloud on title $emo al of a possible foundation for a future hostile claim 3re enti e action to pre ent a future cloud on the title *nd paragraph of Art @IH
=ot essential that the court ac%uire jurisdiction of the person of the defendant
6enefits from allowing actions /as9 of court is to determine the respecti e rights of the parties so that the complainant and those claiming under him may fore er free from any danger of hostile claim !$umarate case" Affords prompt and ade%uate method to remo e cloud on title 3romotes impro ement of property /o what 9ind of property does this action apply? $eal property# which may refer to either the title or only an interest therein !usufruct# ser itude# lease record# etc" =ot to personal property o 6ut# they may be applied to personalty under exceptional circumstances with respect to certain types of property which parta9e of the nature of real property ! essels# motor ehicles# certificates of stoc9s"# or treated to some extent as realty because of registration re%uirements for ownership or transactions affecting them !chattel mortgage" 3rescriptibility of action &' 4f plaintiff in possession# it does not prescribe' An action to %uiet title brought by a person who is in possession of the property is imprescriptible' *' 4f plaintiff not in possession# he must in o9e his remedy within the proper prescripti e period' /en years if in good faith# -; years if in bad faith' Art 422 The #lainti"" m,st ha'e legal or e6,ita le title to+ or interest in the real #ro#erty which is the s, !ect matter o" the action& ;e nee$ not e in #ossession o" sai$ #ro#erty& /itle and possession of the plaintiff 3laintiff must ha e a legal or e%uitable title or an interest in the real property which is the subject matter of the action o :egal title may consist in full ownership or in na9ed ownership o 4f plaintiff has beneficial interest in the property !such as a beneficiary in a trust"# he has beneficial title
An action to %uiet title includes an action to remo e a cloud of title'
=ature of action 8uasi in rem Audgment is conclusi e only between the parties /he res# the subject7matter of the contro ersy# is within the courts jurisdiction# and it is because of that circumstance that the court is able to adjudicate
28
PROPERTY NOTES
4nterest in property is any interest short of ownership# li9e the interest of a mortgagee or a usufructuary 4f plaintiff is not in possession# he may also bring one of the three actions mentioned in addition to the action to %uiet title 4n order to afford complete relief to the parties in action to %uiet title# the court# without thereby con erting the action from %uieting of title into accion publiciana, may determine#8 o 4ncidentally the ownership# o /he stats of the legal title to the property o $ight to the possession thereof o
here y a$o#te$ inso"ar as they are not in con"lict with this :o$e& Art 451 The #roce$,re "or 6,ieting o" title or the remo'al o" a clo,$ there"rom shall e go'erne$ y s,ch r,les o" co,rt as the S,#reme :o,rt shall #rom,lgate&
:;APTER 3OCR% RCINOCS =CIL8IN>S AN TREES IN 8AN>ER O3 3ALLIN>

Art 45) I" a ,il$ing+ wall+ col,mn or any other constr,ction is in $anger o" "alling+ the owner shall e o lige$ to $emolish it or to e/ec,te the necessary wor- in or$er to #re'ent it "rom "alling& I" the #ro#rietor $oes not com#ly with this o ligation+ the a$ministrati'e a,thorities may or$er the $emolition o" the str,ct,re at the e/#ense o" the owner+ or ta-e meas,res to ins,re #, lic sa"ety& 4f a building# wall# column or other construction is in danger of falling# the owner has the duty to either8 o Demolish it# or o $epair it' 4n case he doesnt# the administrati e authorities# in the exercise of police power# may order the demolition of the structure# or ta9e measures to insure public safety $ecognition of the limitation of the owners rights in the use and enjoyment of his property o Sic utere tuo ut alienum non laedas3 2 (se your property as not to injure others
Art 425 There may also e an action to 6,iet title or remo'e a clo,$ there"rom when the contract+ instr,ment or other o ligation has een e/ting,ishe$ or has terminate$+ or has een arre$ y e/tincti'e #rescri#tion& /wo cases when action allowed An action to %uiet title may be maintained8 &' When the contract# instrument# or other obligation has been extinguished or terminated !right of the defendant has been extinguished by the happening of a condition subse%uent" *' When the contract# instrument or other obligation has been barred by extincti e prescription !as where plaintiff has possess in bad faith the property publicly# ad ersely and uninterruptedly for -; years" Art 427 The #lainti"" m,st ret,rn to the $e"en$ant all ene"its he may ha'e recei'e$ "rom the latter+ or reim ,rse him "or e/#enses that may ha'e re$o,n$e$ to the #lainti""Bs ene"it& ?bligation of plaintiff to return or reimburse /he purpose of the action to %uiet title is solely o to remo e the cloud on the plaintiffs title or o to pre ent a cloud from being cast upon his title# and not to obtain any other benefit 3laintiff is bound to return to the defendant all the benefits he may ha e recei ed form the latter or reimburse him for the expenses incurred on the property which has redounded to the plaintiffs benefit !less of course# any damage which he suffered by reason of the defendant" Art 459 The #rinci#les o" the general law on the 6,ieting o" title are
Art 45. <hene'er a large tree threatens to "all in s,ch a way as to ca,se $amage to the lan$ or tenement o" another or to tra'elers o'er a #, lic or #ri'ate roa$+ the owner o" the tree shall e o lige$ to "ell an$ remo'e it( an$ sho,l$ he not $o so+ it shall e $one at his e/#ense y or$er o" the a$ministrati'e a,thorities& ?wner of the tree may be compelled to fell and remo e a threatening tree# and should he fail to do so# the wor9 shall be ordered done at his expenses by the administrati e authorities
TITLE III A :O1O<NERS;IP
29
PROPERTY NOTES
ART 454 There is co1ownershi# whene'er the ownershi# o" an ,n$i'i$e$ thing or right elongs to $i""erent #erson& In $e"a,lt o" contracts+ or o" s#ecial #ro'isions+ co1ownershi# shall e go'erne$ y the #ro'isions o" this Title& What is co7ownership? As a manifestation of ownership# it is that form of ownership which exists whene er an undi ided thing or right belongs to different persons As a right# it has been defined as the right of common dominion which two or more persons ha e in a spiritual or ideal part of a thing which is not materially or physically di ided $e%uisites i. 3lurality of owners ii. ?bject of ownership must be an undi ided thing or right iii. .ach co7owners right must be limited only to his ideal share of the physical whole )haracteristics of co7ownership &' /wo or more co7owners *' +ingle object which is not materially or physically di ided# o er which and his ideals share of the whole# each co7owner exercises ownership# together with the co7owners -' =o mutual representation by the co7owners @' .xists for the common enjoyment of the co7owners <' =o distinct legal personality H' Go erned first by the contract of parties a' otherwise# by special legal pro isions b' in default of such pro isions# by this /itle ?wnership of a co7owner ?wnership of whole and o er his ali%uot share .ach owner is at the same time absolute owner of his own ideal but definite share which determines his rights and obligations in the co7 ownership . ery co7owner# jointly with the other co7owners# is the owner i' of the whole# and o er the whole he exercises the right of dominion# and ii' he is at the same time the owner of an ali%uot portion which is
truly abstract because until di ision is effected such portion is not concretely determined Disputed portions owned already concretely determined =o co7ownership when the different portions owned by different people are already concretely determined and separately identifiable# e en if not yet technically described .xample8 When northern half of land belongs to buyer# southern half belongs to seller +ources of co7ownership &' )ontract !two persons share in paying purchase price" *' :aw !easement in party walls# absolute community of property" -' +uccession !in the case of heirs of undi ided property" @' /estamentary disposition or donation inter i os !testator prohibits partition of the property" <' Cortuitous e ent or by chance !commixtion or confusion by accident" H' ?ccupancy !two fol9s catch a wild animal in the jungles of 6orneo" )o7ownership .ach co7owner# together with the others# is the owner of the whole undi ided thing or right but at the same time of his own ideal part thereof )an dispose of his share without the consent of the other +ur i ors are subrogated to the rights of the deceased immediately upon the death of the latter Disability of a co7owner does not inure to the benefit of the others )o7ownership May be created without formalities of a contract =o juridical or legal personality Aoint ?wnership =o abstract share ownership by the co7owners# the right of the joint tenants being inseparable =ot permitted to dispose of his share or interest in the property without the consent of others 4f joint tenant dies# his ownership dies with him Disability of a joint tenant inures to the benefit of the others for purposes of prescription 3artnership )an be created only by a contract# express or implied Distinct juridical personality
30
PROPERTY NOTES
3urpose is collecti e enjoyment of the thing )o7owner can dispose of his share without the consent of the others# transferee automatically becoming a co7owner =o mutual representation Distribution of profits must be proportional to the respecti e interests of the co7owners =ot dissol ed by death Agreement to 9eep the thing undi ided for a period of more than ten years is oid !although it may be extended by a new agreement" )o7ownership .ach co7owner has a right of dominion o er the whole property and o er his undi ided share $ight of ownership rests solely on each and e ery co7owner o er a single object
3urpose to obtain profits (nless authoriGed# a partner cannot dispose and substitute another partner in his place 3artner can generally bind the partnership Distribution of profits is subject to stipulation of the partners Dissol ed by death or incapacity /here may be agreement as to any definite term without limit set by law .asement 3recisely a limitation on the right of dominion $ight of dominion is in fa or of one or more persons and o er two or more different things
3resumption8 3roportional to their respecti e interests Does not apply to co7ownership based on will or by donation' Art 450 Each co1owner may ,se the thing owne$ in common+ #ro'i$e$ he $oes so in accor$ance with the #,r#ose "or which it is inten$e$ an$ in s,ch a way as not to in!,re the interest o" the co1ownershi# or #re'ent the other co1owners "rom ,sing it accor$ing to their rights& The #,r#ose o" the co1ownershi# may e change$ y agreement+ e/#ress or im#lie$& :imitations on co7owners right to use &' Must be n accordance with the purpose for which the co7ownership is intended $esort to the agreement 4n absence thereof# it is to be understood that the thing is intended for that use for which it is ordinarily adapted according to its nature )o7owners are free to change the purpose of the co7ownership by agreement# express or implied o Eowe er# mere tolerance does not change purpose *' Must not injure the interest of the co7ownership -' Must not pre ent the co7owners from using it according to their rights Art 452 Anyone o" the co1owners may ring an action in e!ectment& Action in ejectment Any co7owner can bring# in behalf of himself# and the other co7owners an action in ejectment affecting the co7ownership o Corcible entry# unlawful detainer# reco ery of possession# reco ery of ownership May be brought against strangers and e en against a co7owner o ?nly purpose of an action against a co7owner who ta9es exclusi e possession and asserts exclusi e ownership of the property is to obtain recognition of the co7ownership An ad erse decision in the action is not necessarily res judicata with respect to the other co7owners not being parties to the action o .xception8 where it appears that the action was instituted in their behalf with their express or implied consent# or o /he rights in the co7ownership are deri ed from the title of their predecessors7in7interest found by the court to be in alid or
)ase doctrines /he property regime of parties to a bigamous marriage is go erned by Art &@D of the Camily )ode which pro ides that all properties ac%uired by the parties out of their actual joint contribution of money# property# or industry shall be go erned by the rules on co7ownership' 4f there is no contribution from either or both of the spouses# there can be no co7 ownership' !Acre Mutti99i 7 aw yeah# what a name'" Art 45* The share o" the co1owners+ in the ene"its as well as in the charges+ shall e #ro#ortional to their res#ecti'e interests& Any sti#,lation in a contract to the contrary shall e 'oi$& The #ortions elonging to the co1owners in the co1ownershi# shall e #res,me$ e6,al+ ,nless the contrary is #ro'e$&
31
PROPERTY NOTES
inexistent Art 455 Each co1owner shall ha'e a right to com#el the other co1 owners to contri ,te to the e/#enses o" #reser'ation o" the thing or right owne$ in common an$ to the ta/es& Anyone o" the latter may e/em#t himsel" "rom this o ligation y reno,ncing so m,ch o" his ,n$i'i$e$ interest as may e e6,i'alent to his share o" the e/#enses an$ ta/es& No s,ch wai'er shall e ma$e i" it is #re!,$icial to the co1 ownershi#& ?bligation to contribute to expenses of preser ation and to taxes /he expenses of preser ation of the thing or right owned in common and the amount of taxes due thereon should be borne by all A co7owner who ad anced them has a right to demand reimbursement from the others in proportion to their respecti e interests in the co7 ownership $efers only to necessary expenses (seful expenses are not co ered# unless such were incurred with the consent of the others .xpenses for pure luxury are not also refundable# not being for preser ation $enunciation by a co7owner of his share in the co7ownership $enunciation need not be total /he co7owner need only renounce or gi e up in fa or of the other co7 owners so much of this undi ided share as may be e%ui alent to his share of expenses and taxes .xample? Art 457 Re#airs "or #reser'ation may e ma$e at the will o" one o" one o" the co1owners+ ,t he m,st+ i" #ractica le+ "irst noti"y his co1owners o" the necessity "or s,ch re#airs& E/#enses to im#ro'e or em ellish the thing shall e $eci$e$ ,#on y a ma!ority as $etermine$ in Article 47)& =ecessity for agreement on expenses Acts or decisions affecting the ting owned in common may be grouped into o Acts of preser ation !Art @DK" o Acts of administration !Art @K*" o Acts of alteration !Art @K&"
$epairs for preser ation o A co7owner has the right to compel the other co7owners to contribute to the expenses of preser ation# maintenance or necessary repairs of the thing or right owned in common# and to the taxes# e en if incurred without the 9nowledge of other co7owners or prior notice to them# in iew of the nature of expenses o )o7owner must# if practicable# first notify the co7owners of the necessity for the repairs 4f impracticable or where the repairs are ery urgent and the other co7owners are in remote places and cannot be reached# the notice may be dispensed with o /he lac9 of notice# e en if practicable# would not exempt the other co7owners from the obligation to contribute to the expenses' 6ut the co7owner who ad anced them has the burden of pro ing that they were properly incurred'
Art 479 <hene'er the $i""erent stories o" a ho,se elong to $i""erent owners+ i" the titles o" ownershi# $o not s#eci"y the terms ,n$er which they sho,l$ contri ,te to the necessary e/#enses an$ there e/ists no agreement on the s, !ect+ the "ollowing r,les% 1& the main an$ #arty walls+ the roo"s an$ the other things ,se$ in common+ shall e #reser'e$ at the e/#ense o" all the owners in #ro#ortion to the 'al,e o" the story elonging to each( )& Each owner shall ear the cost o" maintaining the "loor o" his story( the "loor o" the entrance+ "ront $oor+ common yar$ an$ sanitary wor-s common to all shall e maintaine$ at the e/#ense o" all the owners #ro rata( .& The stairs "rom the entrance to the "irst story shall e maintaine$ at the e/#ense o" all the owners #ro rata+ with the e/ce#tion o" the owner o" the gro,n$ "loor( the stairs "rom the "irst to the secon$ story shall e #reser'e$ at the e/#ense o" all+ e/ce#t the owner o" the gro,n$ "loor an$ the owner o" the "irst story( an$ so on s,ccessi'ely& Applies if the titles of ownership do not specify the terms thereof or there exists no agreement on the subject
Art 471 None o" the co1owners shall witho,t the consent o" the others+ ma-e alterations in the thing owne$ in common+ e'en tho,gh ene"its
32
PROPERTY NOTES
"or all wo,l$ res,lt there"rom& ;owe'er+ i" the withhol$ing o" the consent y one or more ot the co1owners is clearly #re!,$icial to the common interest+ the co,rts may a""or$ a$e6,ate relie"& =ecessity of consent of other co7owners for alterations Alteration contemplates a change made by a co7owner in the thing owned in common which in ol es8 o )hange of the thing from the state or essence in which the others belie e it should remain5 or o Withdrawal of the thing from the use to which they wish it to be intended5 or o Any other transformation which prejudices the condition or substance of the thing or its enjoyment by the others' Alteration is not limited to material or physical changes o 4ncludes any act of ownership by which a real right or encumbrance is imposed on the common property# such as ser itude# registered lease# lease of real property for more than one year# mortgage# pledge =68 (nanimous consent of all the co7owners# not a mere majority# is necessary e en if the alteration would pro e beneficial because alteration is an act of ownership and not of mere administration o )onsent may be expressed or implied :iability for alteration8 the co7owner who ma9es such alteration without the express or implied consent of the other co7owners acts in bad faith because he does so as if he were the sole owner o Ee loses what he has spent o ?bliged to demolish the impro ements done# and o :iable to pay for loses and damages the community property or the other co7owners may ha e suffered Art 47) 3or the a$ministration an$ etter en!oyment o" the thing owne$ in common+ the resol,tions o" the ma!ority o" the co1owners shall e in$ing& There shall e no ma!ority ,nless the resol,tion is a##ro'e$ y the co1owners who re#resent the controlling interest in the o !ect o" the co1ownershi#& Sho,l$ there e no ma!ority+ or sho,l$ the resol,tion o" the ma!ority e serio,sly #re!,$icial to those intereste$ in the #ro#erty owne$ in common+ the co,rt+ at the instance o" an intereste$ #arty+ shall or$er s,ch meas,res as it may $eem #ro#er+ incl,$ing the
a##ointment o" an a$ministrator& <hene'er a #art o" the thing elongs e/cl,si'ely to one o" the co1owners+ an$ the remain$er is owne$ in common+ the #rece$ing #ro'isions shall a##ly only to the #art owne$ in common& $ules for acts of administration and better enjoyment Acts of management of the common property /hey contemplate acts or decisions for the common benefit of all the co7 owners and not for the benefit of only one or some of them While alteration is more or less permanent# acts of administration ha e transitory effects and ha e for their purpose the preser ation# preparation and better enjoyment of the thing and which do not affect its essence# nature or substance =68 Majority rule pre ails' o /he majority consists of co7owners who represent the controlling interest in the object of the co7ownership' o /he majority li9ewise decides the expenses to impro e or embellish the common property' =otice must be gi en to the minority unless it is impracticable to do so' 4f there is no majority or the resolution of the majority is seriously prejudicial to the interests of the other co7owners# the court# at the instance of an interested party# may ta9e such measures as it may deem proper o .xamples of prejudicial acts8 $esolution calls for a substantial change of the thing AuthoriGes leases# loans# and other contracts without the necessary security (pholds the continued employment of an administrator who is guilt of fraud or negligence in his management Art 47. Each co1owner shall ha'e the ",ll ownershi# o" his #art an$ o" the "r,its an$ ene"its #ertaining thereto+ an$ he may there"ore alienate+ assign or mortgage it+ an$ e'en s, stit,te another #erson in its en!oyment+ e/ce#t when #ersonal rights are in'ol'e$& =,t the e""ect o" the alienation or the mortgage+ with res#ect to the co1owners shall e limite$ to the #ortion which may e allotte$ to him in the $i'ision ,#on the termination o" the co1ownershi#& $ights of each co7owner
33
PROPERTY NOTES
&' *' -' @'
Cull ownership of his part# that is# his undi ided interest or share in the common property Cull ownership of the fruits and benefits pertaining thereto May alienate# assign or mortgage his ideal interest or share independently of the other co7owners May e en substitute another person in the enjoyment of his part# except when personal rights are in ol ed A co7owner is gi en the legal right of redemption in case the shares of all the other co7owners or any of them are sold to a third person !not a co7owner"& o Earry# $on and =e ille were co7owners of a parcel of land' Earry sold his share to Draco' $on and =e ille may redeem the share from Angel' 4f only $on exercises the right# he shall pay only a reasonable price' +ubject to reimbursement from =e ille# as it is a preser ation expense' o 4f they both want to exercise the right# they may only do so in proportion to the share they may respecti ely ha e in the thing owned in common' A co7owner may exempt himself from the obligation to contribute to the expenses of preser ation of the thing or right owned in common and to the taxes by renouncing so much of his interest as may be e%ui alent to his share of the expenses and taxes
+ale or mortgage of common property (ndi ided portion o A co7owner is free to dispose of his pro indi iso share and of the fruits and other benefits arising from that share but the transferee does not ac%uire an specific or determinate physical portion of the whole# his right being limited to the portion which may be allotted to him upon the partition of the property Definite portion
1
/he fact that a deed of sale appears to con ey a definite or segregated portion of the property under co7ownership that is still undi ided does not per se render the sale a nullity o /he sale is alid subject only to the condition that the interests ac%uired by the endee must be limited to the part that may be assigned to the co7owner7 endor in the di ision upon the termination of the co7ownership o /he sale affects only his proportionate or abstract share in the property owned in common# subject to the results of the partition# but not those of the other co7owners who did not consent to the sale o /here may be a alid sale of a definite portion of the property co7owned e en before actual partition where the rule of estoppel apples !co7owners didnt object when seller pointed a portion out to a potential buyer" Whole property o . en if a co7owner sells the whole property as his own# or without the consent of ther other co7owners# the sale is alid only insofar as his ideal %uota is concerned unless the sale is authoriGed by the other co7owners o A sale of the entire property by one co7owner will only transfer the rights of said co7owner to the buyer# thereby ma9ing the buyer a co7owner of the property o $ecourse of co7owners when their consent was not secured8 action for partition o
Where personal rights are in ol ed A co7owner may substitute another in the enjoyment of his undi ided interest in the co7ownership except when personal rights are in ol ed 3ersonal right 2 a right which cannot be transferred because it affects the personal relations of the co7owners with one another Art 474 No co1owner shall e o lige$ to remain in the co1ownershi#& Each co1owner may $eman$ at any time the #artition o" the thing owne$ in common+ inso"ar as his share is concerne$& Ne'ertheless+ an agreement to -ee# the thing ,n$i'i$e$ "or a certain #erio$ o" time+ not e/cee$ing ten years+ shall e 'ali$& This terms may e e/ten$e$ y a new agreement& A $onor or testator may #rohi it #artition "or a #erio$ which shall not e/cee$ twenty years&
Art &H*; A co7owner of a thing may exercise the right of redemption in case the shares of all the other co7owners or of any of them# are sold to a third person' 4f the price of the alienation is grossly excessi e# the redepmtioner shall pay only a reasonable one' +hould two or more co7owners desire to exercise the right of redemption they may only do so in proportion to the share they may respecti ely ha e in the thing owned in common'
34
PROPERTY NOTES
Neither shall there e any #artition when it is #rohi ite$ y law& No #rescri#tion shall r,n in "a'or o" co1owner or co1heir against his co1owners or co1heirs so long as he e/#ressly or im#lie$ly recogni4es the co1ownershi#& /ermination of co7ownership )o7ownership may be terminated in different ways# as follows &' )onsolidation or merger in only one of the co7owners of all the interests of the others5 *' Destruction or loss of the property co7owned -' Ac%uisiti e prescription in fa or of a third person# or a co7owner who repudiates the co7ownership @' 3artition# judicial or extrajudicial <' /ermination of the period agreed upon or imposed by the donor or testator# or of the period allowed by law H' +ale by the co7owners of the thing to a third person and the distribution of its proceeds among them $ight of a co7owner to demand partition 3artition is the di ision between two or more persons of real or personal property which they own in common so that each may enjoy and possess his sole estate to the exclusion of and without interference from the others )o7owner ahs the right to demand at any time partition of the thing owner in common# insofar as his share is concerned for 0no co7owner shall be obliged to remain in the co7ownership1 Action to demand partition is imprescriptible or cannot be barred by laches# absent a clear repudiation of the co7ownership by a co7owner clearly communicated to the other co7owners /he actual possession and enjoyment of se eral portions of the common property by some of the co7owners does not of itself pro ide proof that the property has already been partitioned and co7ownership terminated' o A co7owner cannot# without the conformity of the other co7 owners or judicial decree of partition# adjudicate to himself in fee simple a determinate portion of the property owned in common as his share theirein# to the exclusion of the others .xceptions to the right to demand partition
&'
*' -' @' <'
When the co7owners ha e agreed to 9eep the thing undi ided for a certain period of time# not exceeding ten years o 3eriod stipulated exceeds ten years would be oid insofar as the excess is concerned When the partition is prohibited by donor or testator for a certain period not exceeding twenty years When the partition is prohibited by law o )onjugal property# etc When partition would render the thing unser iceable for the use for which it is intended When another co7owner has possessed the property as exclusi e owner and for a period sufficient to ac%uire it by prescription
3rescription in fa or of or against a co7owner 3rescription does not run in fa or or against a co7owner or co7heir )o7ownership is a form of a trust# with each owner being a trustee for each other' Where# howe er# a co7owner or co7heir repudiates the co7ownership# prescription begins to run from the time of repudiation !re%uisites" i' Ee had performed une%ui ocal acts of repudiation of the co7 ownership amounting to an ouster of the beneficiary or the other co7owners ii' +uch positi e acts of repudiation ha e been made 9nown to the beneficiary or other co7owners iii' . idence thereon is clear# complete and conclusi e in order to establish prescription without any shadow of doubt5 and i ' 3ossession is open# continuous# exclusi e and notorious .xamples of specific acts which are considered as acts of repudiation Ciling by a trustee of an action in court against the trustor to %uiet title to property Action for recon eyance of land based on implied or constructi e trust )ancellation of title in the name of the apparent beneficiaries and application for a new certificate of title in his !administratorLtrustee" name Art 47* Notwithstan$ing the #ro'isions o" the #rece$ing article+ the co1 owners cannot $eman$ a #hysical $i'ision o" the thing owne$ in common+ when to $o so wo,l$ ren$er it ,nser'icea le "or the ,se "or which it is inten$e$& =,t the co1ownershi# may e terminate$ in
35
PROPERTY NOTES
accor$ance with Article 475& Art 470 Partition may e ma$e y agreement etween the #arties or y !,$icial #rocee$ings& Partition shall e go'erne$ y the R,les o" :o,rt inso"ar as they are consistent with this :o$e& 3urpose and effect of partition 3artition has for its purpose the separation# di ision and assignment of the thing held in common among those to whom it may belong' After partition# the portion belonging to each co7owner has been identified and localiGed# so that co7ownership# in its real sense# no longer exists Action for partition /wo phases8 o Determine whether there is indeed a co7ownership o Determine how the property is to be di ided /he issue of ownership or co7ownership must first be sol ed in order to effect a partition of properties An action for partition will not lie if the claimant has no rightful interest o er the subject property Eow partition effected May be effected extrajudicially pursuant to an agreement May be effected judicially by judicial proceedings under $ule HK of the $ules of )ourt o An action for partition is in the nature of an action 9uasi in rem Application of the +tatute of Crauds /he +tatute of Crauds does not apply to partition because it is not legally deemed a con eyance or a sale of property resulting in change of ownership but simply a segregation and designation of that part of the property which belongs to each of the co7owners ?ral partition is alid and enforceable where no third persons are in ol ed o 4n cases of oral partition# the actual possession of one of the property is e idence that there was indeed oral partition' o 4n an oral partition under which the parties went into possession# exercises acts of ownership# or otherwise partly performed the partition agreement# e%uity will confirm such
partition and in a proper case# decree title in accordance with the possession in se eralty Art 472 The cre$itors or assignees o" the co1owners may ta-e #art in the $i'ision o" the thing owne$ in common an$ o !ect to its eing e""ecte$ witho,t their conc,rrence& =,t they cannot im#,gn any #artition alrea$y e/ec,te$+ ,nless there has een "ra,$+ or in case it was ma$e notwithstan$ing a "ormal o##osition #resente$ to #re'ent it+ witho,t #re!,$ice to the right o" the $e tor or assignor to maintain its 'ali$ity& /he law does not expressly re%uire that pre ious notice of the proposed partition be gi en to the creditors and assignees' 6ut as they are granted the right to participate in the partition# they ha e also the right to be notified thereof' 4n the absence of notice# the partition will not be binding on them' $ules8 o 4f no notice is gi en# the creditors or assignees may %uestion the partition already made5 o 4f notice is gi en# it is their duty to appear and ma9e 9nown their position5 they may concur with the proposed partition or object to it5 and o /hey cannot impugn a partition already executed or implemented unless8 /here has been fraud# whether or not notice was gi en# and whether or not formal opposition was presented# or /he partition was made notwithstanding that formal opposition was presented to pre ent it# e en if there has been no fraud' Debtor or assignor has always the right to show the alidity of the partition'
Art 475 <hene'er the thing is essentially in$i'isi le an$ the co1owners cannot agree that it e allotte$ to one o" them who shall in$emni"y the others+ it shall e sol$ an$ its #rocee$s $istri ,te$& Although the thing cannot be physically di ided# the co7ownership may ne ertheless be terminated in accordance with the abo e pro ision pursuant to the rule in Art @K@ by adjudication of the thing to one of the
36
PROPERTY NOTES
co7owners who shall indemnify the others or by its sale with the proceeds thereof di ided among the co7owners +ale may be pri ate# public# and purchases may be a co7owner or a third person Art @KD applies when8 o /hing indi isible o )o7owners cant agree that it be allotted to one of them# who shall indemnify the others o +o# ibenta na lang7
T;E :ON8OMINICM A:T

A condominium is an o 4nterest in real property consisting of A separate interest in a unit in a residential# industrial# or commercial building# and An undi ided interest in common directly or indirectly in the land on which it is located and in other common areas of the building' /wo important documents8 Master Deed and Declaration of $estrictions Coreigners can own up to @;O of the entire condominium corporation !so if the condominium has &;; units# foreigners can own up to @; units" 03roject1 means the entire parcel of real property di ided or to be di ided in condominiums# including all structures thereon 0)ommon areas1 !meaning the entire project excepting all units separately granted or held or reser ed" are owned by the condominium corporation 03ri ate units1 !meaning the a part of the condo project intended for any type of independent use or ownership" are owned by the unit owners o (nit owners are shareholders in the condominium o 4f you sell your unit to someone else# you lose your status as a shareholder in the condominium corporation )ondominium )ertificate of /itle is whats gi en !as opposed to a ?)/ or /)/"
Art 477 The #artition o" a thing owne$ in common shall not #re!,$ice thir$ #ersons who shall retain the rights o" mortgage+ ser'it,$e+ or any other real rights elonging to them e"ore the $i'ision was ma$e& Personal rights #ertaining to thir$ #ersons against the co1ownershi# shall also remain in "orce+ notwithstan$ing the #artition& /hird persons# refer to all those with real rights# such as mortgage and ser itude o er the thing owned in common or with personal rights against the co7owners who had no participation whate er in the partition
Art *99 C#on #artition+ there shall e a m,t,al acco,nting "or ene"its recei'e$ an$ reim ,rsements "or e/#enses ma$e& Li-ewise+ each co1 owner shall #ay "or $amages ca,se$ y reason o" his negligence or "ra,$& Art *91 E'ery co1owner shall+ a"ter #artition+ e lia le "or $e"ects o" title an$ 6,ality o" the #ortion assigne$ to each o" the other co1owners& What are the obligations of the co7owners upon partition? !A$4W" &' Mutual accounting for the benefits recei ed !because the fruits and other benefits of the thing belong to all the co7owners" *' Mutual reimbursement for expenses !necessary expenses# taxes# etc" -' 4ndemnity for damages caused by reason of negligence or fraud @' $eciprocal warranty for defects of title or %uality of the portion assigned to a co7owner !land allotted to a co7owner belongs to a third party# or the property is of inferior %uality" a' Atty Abrenica said that in practice# the remedy in this situation is to di ide the remaining property and just gi e it to the one prejudiced
TITLE V A POSSESSION :;APTER ONE POSSESSION AN8 T;E GIN8S T;EREO3

Art *). Possession is the hol$ing o" a thing or the en!oyment o" a right& )oncept of possession As a distinct legal concept# possession is the holding of a thing or the enjoyment of a right with the intention to possess in ones own right ?wnership and possession distinguished /here is ownership when a thing pertaining to one person is completely subjected to his will in a manner not prohibited by law and consistent with the rights of others' 4t confers certain right to the owner !right to
37
PROPERTY NOTES
enjoy the thing owned and the right to exclude other persons from possession thereof" ?n the other hand# possession is defined as the holding of a thing or the enjoyment of a right' /o possess means to actually and physically occupy a thing with or without a right' 3ossession may be in the concept of an owner or in the concept of a holder' A person may be declared owner but he may not be entitled to possession' !As in when the possession is in the hands of a tenant" A judgment for ownership does not necessarily include possession as a necessary incident' Aust as possession is not a definite proof of ownership# neither is non7 possession inconsistent with ownership'
What are the relations created by possession? 3ossession is characteriGed by two relations8 &' 3ossessors relation to the property itself 2 this assumes that the possessor exercises some degree of control more or less effecti e o er the object' *' 3ossessors relation to the world 2 aside from the power of control o er the object# the possessor must also ha e the ability to exclude others from his possession' A customer who holds and examines a piece of jewelry in the presence of the seller may be said to ha e only custody# not possession# of the jewelry' Corms or degrees of possession &' 3ossession without any title whate er Mere holding or possession without any right or title at all# such as that of a thief or s%uatter *' 3ossession with a juridical title 3redicated on a juridical relation existing between the possessor and the owner !or one acting in his behalf" of the thing but not in the concept of owner# such as that of a lessee# usufructuary# depositary# agent# etc -' 3ossession with a just title 3ossession of an ad erse claimant whose title is sufficient to transfer ownership but is defecti e# such as when the seller is not the true owner or could not transmit his rights thereto to the possessor who acted in good faith @' 3ossession with a title in fee simple 3ossession deri ed from the right of dominion or possession of an owner' /his is the highest degree of possession' =ature of possession &' As an act +imply the holding of a thing or the enjoyment of a right with the intention to possess in ones own right *' As a fact When there is holding or enjoyment# then possession exists as a fact' 4t is the state or condition of a person ha ing property under his control# with or without right -' As a right $efers to the right of a person to that holding or enjoyment to the exclusion of all others ha ing better right than the possessor' 4t may
What are the elements of possession? &' Eolding or control of a thing or right 3ossession always implies the element of corpus or occupation# whether in ones own name or another !except in cases in Art <-I" 4n other words# there must be possession in fact *' With intention to possess the intention and the will to possess are inferred from the fact that the thing is under the control of the alleged possessor# howe er# the existence of the animus possidendi is always subject to contradiction !when in fact the person does not in fact exercise such power of control and does not intend to do so" 4nsane and demented persons cannot ac%uire possession as they are incapable of understanding their actions# therefore# the animus possidendi cannot be present -' 4n ones own right 3ossession may be in ones own name or that of anothers !by himself or by an agent" 4n the first case# the possession may be in the concept of owner or in the concept of a holder of a thing with ownership pertaining to another 4n the second case# the possession is exercised by the owner or holder thru his agent 4n both cases# the possession of the owner or holder is by irtue of his right as such owner or holder
38
PROPERTY NOTES
be8 o o Jus possidendi, or right to possession which is incidental to and included in the right of ownership5 or Jus possessionis or right o% possession independent of and apart from the right of ownership'
3ossession as a fact &' /he face of possession gi es rise to certain rights and presumptions' /hus a person has a right to be respected in his possession# and should he be disturbed therein# he shall be protected or restored to said possession' A possessor has in his fa or the presumption that his possession is lawful 2 that he is the owner or has been gi en the right of possession by the owner' Ee who would disturb a possessor must show either ownership or a better possessory right' *' 3ossession is not a definiti e proof of ownership nor is non7possession inconsistent therewith' 3ossession# howe er# may create ownership either by occupation or by ac%uisiti e prescription' )lasses of possession &' 3ossession in ones own name or in the name of another !Art <*@" *' 3ossession in the concept of owner or possession in the concept of holder !Art <*<"# and -' 3ossession in good faith or possession in bad faith !Art <*H" .xtent of possession &' Actual possession ?ccupancy in fact of the whole or at least substantially the whole' With land# it consists in the manifestation of acts of dominion o er it of such a nature as a party would naturally exercise o er his property' :iterally# to possess means to actually and physically occupy a thing with or without a right' *' )onstructi e possession ?ccupancy of part in the name of the whole under such circumstances that the law extends the occupancy to the possession of the whole' Doctrine of constructi e possession 3ossession in the eyes of the law does not mean that a man has to ha e his feet on e ery s%uare meter of ground before it can be said that
he is in possession' /he general rule is that the possession and culti ation of a portion of a tract of land under claim of ownership of all is constructi e possession of all' o /here are %ualifications to this rule# and one of them is that relating to the siGe of the tract in contro ersy with reference to the portion actually in possession of the claimant'
Art *)4 Possession may e e/ercise$ in oneBs own name or in that o" another& =ame under which possession may be exercised An owner or a holder may exercise his possession in his own name or through another' 4n the same way# possession may be ac%uired by the same person who is to enjoy it or by one acting for another !Art <-*" &' 4n ones own name o When in ones own name# the fact of possession and the right to such possession are found in the same person# such as the actual possession of an owner or a lessor of land' *' 4n the name of another o When possession is in the name of another# the one in actual possession is without any right of his own# but is merely an instrument of another in the exercise of the latters possession# such as possession of an agent# ser ant or guard' 3ossession in anothers name may be8 Foluntary# when exercised by irtue of an agreement# or =ecessary or legal# when exercised by irtue of law# such as the possession in behalf of incapacitated persons' 3hysical or material# when the possessor is a mere custodian of the property and has no independent right or title to retain or possess the same as against the owner !li9e the possession of money recei ed by a teller for the ban9"# or Auridical# when the possession gi es the transferee a right o er the thing which the transferee may set up against the owner# such as the possession of an
39
PROPERTY NOTES
agent who recei es the proceeds of sales of goods deli ered to him in agency by his principal' )ase doctrines 4n the grammatical sense# to possess means to ha e# to actually and physically occupy a thing# with or without a right' /wo things are paramount in possession 2 o there must be occupancy# apprehension or ta9ing# and o there must be intent to possess !animus possidendi"' !Mu 3acleb" 3ossession always includes the idea of occupation' 4t is not necessary that the person in possession should himself be the occupant' /he occupancy can be held by another in his name' without occupancy# there is no possession' !Mu 3acleb" Art *)* The #ossession o" things or rights may e ha$ in one o" two conce#ts% either in the conce#t o" owner+ or in that o" the hol$er o" the thing or right to -ee# or en!oy it+ the ownershi# #ertaining to another #erson& )oncept in which possession may be had )oncept# as contemplated in the pro ision# does not mean the opinion# attitude or belief of the possessor# but of the others# generally in iew of the circumstances which precede and accompany the possession' /hus# possession in the concept of owner is distinguished from possession in good faith' /his 9ind of possession is also referred as to ad erse possession that may ripen into ownership under Article <@;' 3ossession may be had in one of two concepts8 &' 3ossession in the concept of owner !en concepto de dueno) /his ta9es place when the possessor# by his actions# is considered or is belie ed by other people as the owner# regardless of the good or bad faith of the possession' 4t is possession under a claim of ownership or title by one who is the owner himself or one who is not the owner but claims to be and acts as the owner' *' 3ossession in the concept of holder /his ta9es place when the possessor of a thing or right holds it merely to 9eep or enjoy it# the ownership pertaining to another
person' 4t is possession not under a claim of ownership# the possessor ac9nowledging in another a superior right which he belie es to be of ownership# whether this be true or not# or his belief be right or wrong' A person may be a lessor although he is not the owner of the property leased' 4n lease# only the temporary use and enjoyment# not the ownership of the property is transferred'
3ossession in concept of both owner and holder or in neither 4t is possible that a person may exercise possession both in the concept of owner and in the concept of holder' A distinction must be borne in mind between possession of the thing itself and possession of the right to 9eep or enjoy the thing' o $ights are possessed in the concept of owner' /hus# the lessee possesses the thing leased in the concept of holder# and the right of lease in the concept of owner' /he agent# parent and other legal representati es possess neither in the concept of owner nor holder' /hey possess in the name of another' )ase doctrines 3ossession is8 o open when it is patent# isible# apparent# notorious and not clandestine' o continuous when uninterrupted# unbro9en and not intermittent or occasional' o exclusi e when the ad erse possessor can show exclusi e dominion o er the land and an appropriation of it to his own use and benefit o notorious when it is so conspicuous that it is generally 9nown and tal9ed off by the public or the people in the neighborhood' (se of land is ad erse when it is open and notorious' !$epublic 4mperial )redit )orporation" While a tax declaration by itself is not sufficient to pro e ownership# it may ser e as sufficient basis for inferring possession' !$ep 4))" /ax declarations and receipts can only be the basis of a claim of ownership through prescription when coupled with proof of actual possession' !Eeirs of )abal )abal" Eowe er# tax declarations and receipts are not conclusi e e idence of ownership' At most# they constitute mere prima facie proof of ownership
40
PROPERTY NOTES
or possession of the property for which the taxes ha e been paid' 4n the absence of actual public and ad erse possession# the declaration of the land for tax purposes does not pro e ownership' !)e%uena 6olante" Art *)0 ;e is $eeme$ a #ossessor in goo$ "aith who is not aware that there e/ists in his title or mo$e o" ac6,isition any "law which in'ali$ates it& ;e is $eeme$ a #ossessor in a$ "aith who #ossesses in any case contrary to the "oregoing& Mista-e ,#on a $o, t",l or $i""ic,lt 6,estion o" law may e the asis o" goo$ "aith& Define possessor in good faith and in bad faith A possessor in good faith !#uena %e) is one who is not aware that there exists in his title or mode of ac%uisition any flaw which in alidates it' A possessor in bad faith !mala %e) is one who possesses in any case contrary to the foregoing5 he is aware that there exists in his title or mode of ac%uisition a flaw which in alidates it' /his article presupposes that the there exists a flaw in the title or mode of ac%uisition of the possessor who is either aware or not aware of it' 4f there is no flaw# there can be no issue regarding good or bad faith' Good faith is always presumed# and upon him who alleges bad faith on the part of the possessor rests the burden of proof' /he distinction is importance principally in connection with the receipt of fruits and the payment of expenses and impro ements and the ac%uisition of ownership by prescription' /he distinction is immaterial in the exercise of the right to reco er under Article <-K which spea9s of e ery possessor' /he good or bad faith is necessarily personal to the possessor but in the case of a principal and any person represented by another# the good or bad faith of the agent or legal rep will benefit or prejudice him for whom he acts' $e%uisites for possession in good faith or bad faith &' /he possessor has a title or mode of ac%uisition5 !Art I&*" *' /here is a flaw or defect in said title or mode5 and -' /he possessor is unaware or aware of the flaw or defect or belie es that the thing belongs or does not belong to him' A possessor in good faith becomes a possessor in bad faith from the moment he becomes aware that what he belie es to be true is not so'
4f the flaw is in the title of the possessors predecessor# and affects his own title# the flaw exists in his own title unless he can sustain his own independent of that of his predecessor'
)oncept of good faith Good faith or the lac9 of it is a %uestion of intention# but in ascertaining the intention# the courts are necessarily controlled by the e idence as to the conduct and outward acts by which alone the inward moti e may be determined' Good faith or the want of it# is not a isible# tangible fact that can be seen or touched but rather a state or condition of mind which can only be ascertained by actual or fancied to9ens or signs' /he essence of bona %ides or good faith lies in8 o /he honest belief in the alidity of ones right# o ignorance of a superior claim# and o absence of intention to o erreach another# or to defraud or to see9 an unconscionable ad antage' !also the doctrine of Eeirs of )abal" Good faith must rest on a colorable right in the possessor beyond a mere stubborn belief in ones title' ?ne is considered a possessor in good faith if he is not aware that there exists in his title or mode of ac%uisition any flaw which in alidates it' 6asically# its honesty of intention and absence of malice' )oncept of bad faith 4t is the opposite of good faith' 4t imputes a dishonest purpose to do wrong or cause damage' 4t contemplates a state of mind affirmati ely operating with furti e design or some moti e of self7interest of ill7will for ulterior purposes' Mista9e upon a doubtful or difficult %uestion of law /he phrase 0mista9e upon a doubtful or difficult %uestion of law1 refers to the honest error in the application of the law or interpretation of doubtful or conflicting legal pro isions or doctrines' 4t is different from 0ignorance of the law'1 Manresa says that gross and inexcusable ignorance of the law may not be the basis of good faith# but excusable ignorance may be such basis if it is based upon ignorance' Dean )apistrano says that excusable ignorance as a basis of good faith
41
PROPERTY NOTES
was rejected by the )ode )ommission' )ase doctrines /he possessor with a /orrens /itle who is not aware of any flaw in his title which in alidates it is considered a possessor in good faith and his possession does not lose this character except in the case and from the moment his /orrens /itle is declared null and oid by final judgment of the )ourts' !DiGon $odrigueG" /he defense of ha ing purchased the property in good faith may be a ailed of only where registered land is in ol ed and the buyer had relied in good faith on the clear title of the registered owner' !Daclag Macahilig" Art *)2 >oo$ "aith is always #res,me$+ an$ ,#on him who allege$ a$ "aith on the #art o" a #ossessor rests the ,r$en o" #roo"& 3resumption of good faith /his article establishes the presumption of good faith5 it does not say that good faith exists# but that it is presumed' /he presumption is just because possession is the outward sign of ownership' 4t is to be presumed that the right of the possessor is well7 founded' . ery person is presumed to be honest until the contrary is shown' 6ut note that for the purposes of prescription# just title must be pro ed5 it is ne er presumed' Art *)5 Possession ac6,ire$ in goo$ "aith $oes not lose this character e/ce#t in the case an$ "rom the moment "acts e/ist which show that the #ossessor is not ,naware that he #ossesses the thing im#ro#erly or wrong",lly& )essation of good faith during possession 3ossession which begins in good faith is presumed to continue in good faith until the possessor ac%uires 9nowledge of facts showing a defect or wea9ness in his title' /he law spea9s of 0facts1 in place of the word 0acts1# the former being broader than the latter' /hus# it is immaterial whether the 0facts1 from which bad faith can be deduced in ol e acts of the possessor himself or of some other person or any extraneous e idence' 6ut the existence of
the facts mentioned in the article must be pro ed' 6ad faith begins or good faith is interrupted from the time the possessor becomes aware 0that the he possesses the thing improperly or wrongfully#1 not from the time possession was ac%uired' 4n the absence of other facts showing the possessors 9nowledge of defect in his title# good faith is interrupted from the receipt or ser ice of judicial summons' o Crom the ser ice of judicial summons# there exists an act which the possessor 9nows that his right is not secure# that someone disputes it# and that he may yet lose it5 and if the court orders that restitution be made# that time determines all the legal conse%uences of the interruption# the time when the possession in good faith ceases to be so before the law' o /he filing of a case alleging bad faith on the part of a endee gi es cause or cessation of good faith'
)ase doctrines When a contract of sale is oid# the possessor is entitled to 9eep the fruits during the period for which it held the property in good faith# which good faith ceases when an action to reco er possession of the property is filed against him and he is ser ed summons therefor' !D63 )A" Art *)7 It is #res,me$ that #ossession contin,es to e en!oye$ in the same character in which it was ac6,ire$+ ,ntil the contrary is #ro'en& )ontinuity of the character of the possession /he character or possession !good faith or bad faith" is presumed to continue until the contrary is pro ed =o one can# by his sole will nor by the mere lapse of time# change the cause of his possession' 3resumption on the continuance of possession /here are other presumption aside from Articles <*I and <*K affecting possession# namely8 &' (ninterrupted possession of hereditary property !Art <--" *' 3ossession with just title !Art <@&" -' 3ossession of mo ables with real property !Art <@*" @' .xclusi e possession of common property !Art <@-" <' )ontinuous possession !Art <@@" H' (ninterrupted possession !Art <H&"# and
42
PROPERTY NOTES
I'
3ossession during inter ening period !Art &&-D" Ways of ac%uiring possession /o be considered in possession# one need not ha e actual or physical occupation of a thing all times' /here are three ways of ac%uiring possession# namely8 &' 6y the material occupation or exercise of a right5 *' 6y the subjection of the thing or right to our will5 and -' 6y proper acts and legal formalities established for ac%uiring such right of possession' /he modes of ac%uiring ownership can be seen in Article I&*' Material occupation or exercise of right &' With respect to things 2 the law re%uires material occupation as one of the modes of ac%uiring possession' *' With respect to rights 2 since rights are intangible and cannot logically be occupied# what is ac%uired is the exercise of a right' Cor example# possession of a ser itude of way# which is a right# is ac%uired by the exercise of the right !by passing o er the ser ient land" Material occupation by deli ery /he material occupation of a thing as a means of ac%uiring possession may ta9e place by actual or constructi e deli ery' )onstructi e deli ery includes8 &' :radicion brevi manu which ta9es place when one already in possession of a thing by a title other than ownership continues to possess the same under a new title# that of ownership' *' :radicion constitutum possessorium which happens when the owner continues in possession of the property alienated not as owner but in some other capacity# such as that of lessee# pledgee# or depositary' +ubject of the action of will /he second method of ac%uisition is so broad in scope that it practically co ers all means of ac%uiring possession' What the law contemplates is a distinct cause of ac%uiring possession and not merely an effect' 4t refers more to the right of possession than to possession as a fact' .xamples of which are these 9inds of constructi e deli ery8 &' :radicion longa manu# which is effected by the mere consent or agreement of the parties# as when the endor merely points to the
)ase doctrines 3ossession# to constitute the foundation of a prescripti e right# must be possession under a claim of title# that is# it must be ad erse' !6ogo7 Medellin )A" An ac9nowledgment of the easement is an admission that the property belongs to another' 4t gi es the holder of the easement an incorporeal interest on the land but grants no title thereto' !6ogo )A" Mere material possession of land is not ad erse possession as against the owner and is insufficient to est title# unless such possession is accompanied by the intent to possess as an owner' !6ogo )A" Art *.9 Only things an$ rights which are s,sce#ti le o" eing a##ro#riate$ may e the o !ect o" #ossession& ?bject of possession /o be the object of possession# the thing or right must be susceptible of being appropriated' /here are more things susceptible of appropriation than there are things within the commerce of men !i'e' those that can be ac%uired by prescription"' o With respect to res nullius !property without owner"# they can be possessed because theya re capable of being appropriated but hey cannot be ac%uired by prescription which presupposes prior ownership in another' Cor as long as a thing is res nullius# it is not within the commerce of men' o 3roperty of public dominion cannot also be the object of prescription' /he same is true of common things but both may be the object of possession'
:;APTER ) A:FCISITION O3 POSSESSION

Art& *.1& Possession is ac6,ire$ y the material occ,#ation o" a thing or the e/ercise o" a right+ or y the "act that it is s, !ect to the action o" o,r will+ or y the #ro#er acts an$ legal "ormalities esta lishe$ "or ac6,iring s,ch right& H4.5aI
43
PROPERTY NOTES
*'
thing sold :radicion simbolica# which is effected by deli ering an object such as a 9ey where the thing sold is stored or 9ept
3roper acts and legal formalities /his last method of ac%uiring possession refers to ac%uisition by irtue of a just title such as when property is transmitted by succession# donation# contract# or execution of a public instrument# or when possession is gi en by the sheriff to the highest bidder at a public auction# or pursuant to a writ of execution' (nless there is a stipulation to the contrary# the execution of a sale thru a public instrument shall be e%ui alent to the deli ery of the thing' 6ut there is no deli ery notwithstanding the execution of the instrument# where the purchaser cannot ha e the enjoyment and ma9e use of the thing sold because such enjoyment and use are opposed or pre ented by another' (nder Article <-D# possession as a fact cannot be recogniGed at the same time in two different personalities except in the cases of co7 possession A sale with pacto de retro transfers the legal title to the endee# and in the absence of an agreement to the contrary# carries with it the right to the possession of the property sold' )ase doctrines 3ossession alone is not sufficient to ac%uire title to alienable lands of the public domain because the law re%uires possession A=D occupation' 3ossession is broader than occupation because it includes constructi e possession' When the lad adds the word occupation# it see9s to delimit the all encompassing effect of constructi e possession' ?nes possession must not be a mere fiction' Acutla possession of a land consists in the manifestation of acts of dominion o er it of such a nature as a party would naturally exercise o er his own property' !?ng $epublic" 3ossession cannot be ac%uired through force or iolence' /o all intents and purposes# a possessor# e en if physically ousted# is still deemed the legal possessor' !)e%uena 6olante" Art& *.)& Possession may e ac6,ire$ y the same #erson who is to en!oy it+ y his legal re#resentati'e+ y his agent+ or y any #erson
witho,t any #ower whate'er% ,t in the last case+ the #ossession shall not e consi$ere$ as ac6,ire$ ,ntil the #erson in whose name the act o" #ossession was e/ec,te$ has rati"ie$ the same+ witho,t #re!,$ice to the !,ri$ical conse6,ences o" negotior,m gestio in a #ro#er case& H4.7aI 6y whom possession ac%uired 3ossession may be ac%uired8 &' 3ersonally or by the same person who is to enjoy it5 *' /hru an authoriGed person or by his legal representati e or by his agent# and -' /hru an unauthoriGed person or by any person without any power or authority whate er' Ac%uisition of possession through another 3ossession ac%uired by a person personally or thru another may be exercised by him in his own name or in that of another' 6ut minors and other incapacitated persons need the assistance of their legal representati es to exercise the rights arising from possession' 4f a person authoriGed to ac%uired possession for another acted beyond his powers# the principal is not bound unless the latter ratifies the act of ac%uisition' /he exception is when a person oluntarily manages the property or business of another' 4n such case# the strangers !gestors" possession ta9es effect e en without ratification by the owner of the property or business' )ase doctrines Art& *..& The #ossession o" here$itary #ro#erty is $eeme$ transmitte$ to the heir witho,t interr,#tion an$ "rom the moment o" the $eath o" the $ece$ent+ in case the inheritance is acce#te$& One who 'ali$ly reno,nces an inheritance is $eeme$ ne'er to ha'e #ossesse$ the same& H449I Ac%uisition of possession through succession /he rights to the succession are transmitted from the moment of the death of the decedent' Crom that moment# each of his heirs becomes the undi ided owner of the whole estate left with respect to that portion which might be
44
PROPERTY NOTES
adjudicated to him' /he inheritance may be accepted or repudiated' /here is no doubt that an heir can sell whate er right# interest or participation he may ha e in the property under administration# subject to the result of said administration' 4n case the inheritance is accepted# the possession of the hereditary property is deemed transmitted by operation of law to the heir without interruption and from the moment of death of the decedent' 4n this inheritance is alidly renounced# the heir is deemed ne er to ha e possessed the same' +ee boo9 for examples'
/hings here are limited to corporeal things only' /his article refers principally but not exclusi ely to material occupation' 4ncapacitated persons may ac%uire property or rights by prescription either personally or through their parents# guardians or legal reps' ?nce possession of a thing is ac%uired by such persons# there is born the right of possession' 4n the exercise of this right# they need the assistance of their legal reps'
Art& *.4& On who s,ccee$s y here$itary title shall not s,""er the conse6,ences o" the wrong",l #ossession o" the $ece$ent+ i" it is not shown that he was aware o" the "laws a""ecting it( ,t the e""ects o" #ossession in goo$ "aith shall not ene"it him e/ce#t "rom the $ate o" the $eath o" the $ece$ent& H44)I .ffects of bad faith of decedent on heir 4f the decedent was in bad faith# the heir shall not suffer the conse%uences of the wrongful possession of the latter because bad faith is personal to the decedent and is not deemed transmitted to the heirs' /he heir suffers the conse%uences of such possession only from the moment he becomes aware of the flaws affecting the decedents title' +ee boo9 again for examples' )ase doctrines A possessor in bad faith should not prejudice his successors7in7interest' 6ad faith is personal and intransmissible' !.scritor 4A)" Art& *.*& Minors an$ inca#acitate$ #ersons may ac6,ire the #ossession o" things( ,t they nee$ the assistance o" their legal re#resentati'es in or$er to e/ercise the rights which "rom the #ossession arise in their "a'or& H44.I Ac%uisition and exercise of rights of possession by minors and incapacitated persons /he persons referred to in the pro ision are unemancipated minors and other persons who ha e no capacity to act li9e spendthrifts# deaf7mutes who cannot read and write# those under ci il interdiction# etc'
Art& *.0& In no case may #ossession e ac6,ire$ thro,gh "orce or intimi$ation as long as there is a #ossessor who o !ects thereto& ;e who elie'es that he has an action or a right to $e#ri'e another o" the hol$ing o" a thing+ m,st in'o-e the ai$ o" the com#etent co,rt+ i" the hol$er sho,l$ re",se to $eli'er the thing& H441aI $ecourse to the courts . ery possessor has a right to be respected in his possession' /he lawful possessor may use such force as may be reasonably necessary to repel or pre ent in asion or usurpation of his property' /his article applies to one who belie es himself the owner of real property' 4f he ta9es justice into his own hands# he is a mere intruder5 and he can be compelled to return the property in an action for forcible entry and must suffer the necessary and natural conse%uences of his lawlessness' A party who can pro e prior possession# whate er may be the character of the possession# has the security that entitles him to reco er such possession or to remain on the property e en against the owner himself until he is lawfully ejected by accion publiciana or accion reivindicatoria3 Art& *.2& Acts merely tolerate$+ an$ those e/ec,te$ clan$estinely an$ witho,t the -nowle$ge o" the #ossessor o" a thing+ or y 'iolence+ $o not a""ect #ossession& H444I Acts which do not gi e rise to possession /he acts mentioned do not affect possession# i'e' the person in possession does not lose the same nor does the person who results to them ac%uire it' 4n other words# the true possessor is deemed to ha e enjoyed uninterrupted possession' o Corce or intimidation 2 as long as there is a possessor who objects thereto# such as by suit of forcible entry' /he rule does not apply if the possessor ma9es no objection# withdraws his
45
PROPERTY NOTES
objection or ta9es no action whatsoe er after initially objecting to the depri ation' o Acts executed clandestinely and without the 9nowledge of the possessor 2 which mean that the acts are not public and un9nown to the possessor or owner' o Acts merely tolerated 2 which do not refer to all 9inds of tolerance on the part of the owner or possessor in iew of the use of the word Bmerely5 it means permission# express or tacit# by irtue of which the acts of possession are performed' Eence# it is simply a %uestion of whether permission was gi en or not' 3ossession of another by mere tolerance is not ad erse and no matter how long continued# cannot ripen to ownership by prescription' /he mere silence or failure to ta9e any action will not be construed as abandonment of rights on the part of the real possessor' 4t is# of course# for the courts to decide whether there has been an abandonment or not' 3ossession by tolerance is lawful but becomes illegal when# upon demand to acate by the legal owner# the possessor refuses to comply with such demand'
owner and the other# in the concept of holder' 4n co7possession# there is no conflict of interests of claims among the parties'
3reference of possession Article <-D applies whether the property is real or personal' 4n case a dispute arises regarding the fact of possession# the order of preference is as follows8 &' /he present or actual possessor shall be preferred *' 4f there are two possessors# the longer in possession5 -' 4f the dates of possession are the same# the possessor with a title5 i'e' right or document e idencing his right to support his possession5 and @' 4f all the abo e are e%ual# the fact of possession shall be judicially determined# and in the meantime# the thing shall be placed in judicial deposit'
Art& *.5& Possession as a "act cannot e recogni4e$ at the same time in two $i""erent #ersonalities e/ce#t in the cases o" co1#ossession& Sho,l$ a 6,estion arise regar$ing the "act o" #ossession+ the #resent #ossessor shall e #re"erre$( i" there are two #ossessors+ the one longer in #ossession( i" the $ates o" the #ossession are the same+ the one who #resents a title( an$ i" all these con$itions are e6,al+ the thing shall e #lace$ in !,$icial $e#osit #en$ing $etermination o" its #ossession or ownershi# thro,gh #ro#er #rocee$ings& H44*I 3ossession as a fact at the same time in two different personsalities /he word 0personalities1 is not synonymous to 0persons'1 Cor example# in co7ownership# there are two or more persons# but there is only one personality' 3ossession as a fact may exist at the same time in two or more distinct personalities# but as a general rule# the law will recogniGe only one as the actual or real possessor' /he exception is pro ided in the cases of co7possession# such as co7 ownership# where the property is possessed at the same time in common by the co7owners also5 and possession where the property is possessed at the same time by two persons# one in the concept of
:;APTER . E33E:TS O3 POSSESSION

Art *.7 E'ery #ossessor has a right to e res#ecte$ in his #ossession an$ sho,l$ he e $ist,r e$ therein he shall e #rotecte$ in or restore$ to sai$ #ossession y the means esta lishe$ y the laws an$ the R,les o" :o,rt& A #ossessor $e#ri'e$ o" his #ossession thro,gh "orci le entry may within ten $ays "rom the "iling o" the com#laint #resent a motion to sec,re "rom the com#etent co,rt+ in the action "or "orci le entry+ a writ o" #reliminary man$atory in!,nction to restore him in his #ossession& The co,rt shall $eci$e the motion within thirty $ays "rom the "iling thereo"& $ights of e ery possessor . ery possessor# whether in the concept of owner of in the concept of holder# is gi en the following rights8 &' *' -' $ight to be respected in his possession5 $ight to be protected in or restored to said possession by legal means should he be disturbed therein5 and $ight to secure from a competent court in an action for forcible entry the
46
PROPERTY NOTES
proper writ to restore him in his possession !Art @*D" /he mere possession of a thing is sufficient to insure respect to the possessor while no other person appears to show and pro e a better right' /o all intents and purposes# a possessor e en if physically ousted as through force and iolence# is still deemed the legal possessor'
/he fact# howe er# that a person was ne er in prior physical possession of a land is of no moment where he has a /orrens /itle o er the property as prior physical possession is necessary only in forcible entry cases' $easons for protection &' /o aid criminal law !by preser ing the peace' ?rder is best secured by protecting a possessor and lea ing the true owner to see9 his remedy in a court of law" *' As part of the law of tort !these rights of action are gi en in respect of the immediate and present iolation of the rights of the possessor independently of his rights of property" -' As part of the law of property !law does not always 9nown that the possession in %uestion is unlawful' 4t would be unjust to cast on e ery man whose possession is disturbed the burden of pro ing a flawless title" $emedies of persons depri ed of possession !see discussions in Art @*D" &' forcible entry or unlawful detainer *' accion publiciana -' accion rei indicatoria @' reple in or manual deli ery of personal property 4n forcible entry and unlawful detainer cases# subject to some exceptions# the immediate execution of the judgment in fa or of the plaintiff is a matter of right and mandatory' )onsidering that the only issue in ejectment is that of rightful possession# damages that could be reco ered are those which the plaintiff could ha e sustained as a mere possessor# or those caused by the loss of the use and occupation of the property# and not the damages which he may ha e suffered but which ha e no direct relation to his loss of material possession'
4n forcible entry actions# the plaintiff must present within ten days from the filing of the complaint a motion to secure from the competent court# a writ of preliminary mandatory injunction to restore him in his possession 4n unlawful detainer cases where an appeal is ta9en# the motion shall be filed within ten days from the time the appeal is perfected# if the high court is satisfied that the lessees appeal is fri olous or dilatory# or the lessors appeal is prima facie meritorious' 4n an appeal from a lower court in an ejectment case# the issue of ownership should not be del ed into# for an ejectment action lies e en against the owner of a property'
4ssuance of a writ of preliminary mandatory injunction
3rior peaceful possession of plaintiff re%uired in forcible entry action Where a dispute o er possession arises between two persons# the person first ha ing actual possession# as between them# is the one who is entitled to maintain the action for forcible entry' /he main issue is possession de %acto# independently of any claim of ownership or possession de jure that either party may set forth in his pleadings# and an appeal does not operate to change the nature of the original action . en a mere applicant of public land who is in occupation and in peaceful possession thereof can file an action for forcible entry ,uestion of ownership is unessential and should be raised by the defendant in an appropriate action o Audgment rendered in an action for forcible entry shall not bar an action between the same parties respecting the title to the land or building o /he court has competence to resol e the issue of ownership but only to determine the issue of priority of possession# as its decision does not bind the title or affect the ownership of the property in ol ed !any pronouncement on ownership is pro isional" /he purpose of the law is to protect the person who has actual possession /he plaintiff in an action for forcible entry and detainer cannot succeed when it appears that# as between himself and the defendant# the latter had possession antedating his own5 and to ascertain this# it is proper to loo9 on to the situation as it existed before the first act of spoliation occurred :egal right of prior possessor is not an issue
47
PROPERTY NOTES
4f the plaintiff can pro e prior possession# he may reco er possession e en against the owner himself' o 4f he cant pro e prior possession# he has no right of action e en if he should be the owner himself' 4n case of contro erted right# the law re%uires the parties to preser e the status %uo until one or the other of them sees fit to in o9e the decision of a court upon the %uestion of possession andLor possession A forcible entry or unlawful detainer is not suspended# abated# barred or affected by actions filed in the $/) which do not in ol e physical or de %acto possession o
*'
-' @'
)onditions under which action for forcible entry will lie Wrongful entrance by one not in possession o /he trespasser does not ha e to institute a state of war' /he act of going on the property and excluding the lawful possessor therefrom necessarily implies the exertion of force o er the property# and this is all that is necessary' (nder the law# entering upon the premises by strategy or stealth is e%ually as obnoxious as entering by force' o /he words 0by force# intimidation# threat# etc1 include e ery situation or condition under which one person can wrongfully enter upon real property to exclude another# who has prior possession therefrom' !6anes case" Wrongful exclusion of prior possessor o /he foundation of the action is really the forcible exclusion of the original possessor by a person who has entered without right' Art *49 Only the #ossession ac6,ire$ an$ en!oye$ in the conce#t o" owner can ser'e as a title "or ac6,iring $ominion& 3ossession as basis for ac%uiring ownership 3ossession ac%uired and enjoyed in the concept of owner may ripen into ownership by means of prescription' &' As holder )annot be the basis of prescription +o with possession ac%uired through force or intimidation !Art <-H"# merely tolerated or which is not public and is un9nown to the present possessor !Art <-I"
<'
As e%uitable mortgage )onstructi e possession o er the land cannot ripen into ownership as it cannot be said to ha e been ac%uired and enjoyed in the concept of owner As claimant under a possessory information title !meh" As claimant under a certificate of title Mere possession cannot defeat the title of a holder of a registered /orrens title to real property 6ut the true owner of the property may be defeated by an innocent purchaser for alue notwithstanding the fraud employed by the seller !forger" in securing his title Generally# a forged deed is a nullity and con eys no title' Eowe er# there are instances when such a document may become the root of a alid title' As when the certificate of title was already transferred from the name of the true owner to the forger# and while it remained that way# the land was subse%uently sold to an innocent purchaser for alue !land titles>" As possessor of forest land !not possible>" Mere tax declarations of ownership do not est or pro e ownership of the property in the declarant nor are e en sufficient to sustain a claim for possession o er a land# in the absence of actual possession of the same' /hey are merely an indicum of a claim of ownership =e ertheless# they are good indicia of possession in the concept of owner 3ayment of realty tax coupled with actual possession in the concept of owner is one of the most persuasi e and positi e indicia# which shows the will or desire of a person to possess with claim of ownership or to obtain title to the land or property
)ase doctrine 4n order than an action for reco ery of possession may prosper# it is indispensable that he who brings the action fully pro es not only his ownership but also the identity of the property claimed# by describing the location# area and boundaries thereof' 4nsufficient identification of the portion of land claimed in absolute ownership cannot ripen into ownership' !+erina )aballero" Art *41 A #ossessor in the conce#t o" owner has in his "a'or the legal
48
PROPERTY NOTES
#res,m#tion that he #ossesses with a !,st title an$ he cannot e o lige$ to show or #ro'e it& 3ossessor in concept of owner presumed with just title Just title does not always mean a document or a written instrument :itle is that upon which ownership is based Actual or constructi e possession under claim of ownership raises the disputable presumption of ownership' 4n other words# a possession is presumed ownership until the contrary is shown' A possessor is presumed to ha e a just title# and he cannot be obliged to show or pro e it' o $eason? /o protect the owner from incon enience# otherwise# he will always ha e to carry his titles under his arms to show them to whoe er who wants to see it =68 3resumption of just title does not apply in ac%uisiti e prescription' Ad erse possessor must pro e his just title' 6urden of pro ing just title /he onus probandi is on the plaintiff who see9s the reco ery of property A person who is not# in fact# in possession cannot ac%uire a prescripti e right to a land by the mere assertion of a right therein' Where the possessor is really the owner# the fact that a third person %uestions his right does not impair said right' An owner and possessor whose title is true and alid cannot be re%uired to show that his possession is or has been ad erse as against a new claimant who has neither title nor possession' What are the different 9inds of title? &' :itulo verdadero y valido or true and alid /his is the title presumed in this pro ision +ufficient to transfer ownership without need of possessing the property for the period necessary for ac%uiring title by prescription *' :itulo justo or just title Cor the purposes of prescription# there is just titleJ o When the ad erse claimant came into possession of the property through one of the modes recogniGed by law for the ac%uisition of ownership or other real rights# o but the grantor was not the owner or could not transmit any right
-'
@'
Cor prescription# just title must be pro ed# it is ne er presumed' 4t must be remembered that the burden of pro ing the status of a purchaser in good faith lies upon him who asserts that status' 4t is not sufficient to in o9e the ordinary presumption of good faith# that is# that e eryone is presumed to ha e acted in good faith# since the good faith that is here essential is integral with the ery status that must be established' !Aguirre )A" :itulo colorado or colorable title ?ne which a person has when he buys a thing in good faith# from one who is not the owner but whom he belie es to be the owner /he just title re%uired for ac%uisiti e prescription is titulo Colorado :itulo putativo or putati e title ?ne which a person belie es he has title but in fact he has not because there was no mode of ac%uiring ownership As when one is in possession of a thing in the mista9en belief that it had been be%ueathed to him
0hats the di%%erence between titulo Colorado and titulo verdadero y valido5 4n Colorado, there is a need for prescription to transfer ownership' 4n true and alid title# there is no need for prescription# ownership is transferred once the mode of transfer has been perfected' !6e it by sale# donation# succession# etc"' )ase doctrine 4n order that a co7owners possession may be deemed ad erse to the cestui 9ue trusti or the other co7owners# the following elements must concur8 &' /hat he has perfomrmed une%ui ocal acts of repudiation amounting to an ouster of the beneficiary or the other co7owners *' /hat such positi e acts of repudiation ha e been made 9nown to the beneficiary or the other co7owners -' /hat the e idence thereon must be clear and con incing !Aguirre )A" Art *4) The #ossession o" real #ro#erty #res,mes that o" mo'a les therein+ so long as it is not shown or #ro'e$ that they sho,l$ e e/cl,$e$& 3ossession of real property presumed to include mo ables Article <@* refers to material possession only of things# not rights
49
PROPERTY NOTES
3ossession may be in the concept of owner# of holder# in ones own name or in anothers# or in good faith or in bad faith 4t is normal that mo ables which are found in an immo able belong to the possessor of the latter 4f the building is occupied by the lessee# we can suppose the same with respect to him because in this case# the possessor is the lessee Again# this is a mere presumption'
Art *4. Each one o" the #artici#ants o" a thing #ossesse$ in common shall e $eeme$ to ha'e e/cl,si'ely #ossesse$ the #art which may e allotte$ to him ,#on the $i'ision thereo"+ "or the entire #erio$ $,ring which the co1#ossession laste$& Interr,#tion in the #ossession o" the whole or a #art o" a thing #ossesse$ in common shall e to the #re!,$ice o" all the #ossessors& ;owe'er+ in case o" ci'il interr,#tion+ the R,les o" :o,rt shall a##ly& .xclusi e possession of pre ious co7owner deemed continuous Article <@- spea9s of co7possession of a thing# not of co7ownership =e ertheless# its principle is applicable to co7possession of a real right )o7possession can be o er a thing or a right All participants of a thing possessed in common constitute only one personality and the personality ceases when there is a partition' Crom that moment of cessation# the personality of each participant begins' .ach co7possessor is deemed !not merely presumed>" to ha e possessed exclusi ely and continuously during the period of co7 possession the part assigned to him in the di ision' /he effects of the di ision retroact to the commencement of the co7 possession' 6ut the di ision shall be without prejudice to the rights of creditors' Earry# $on# and Eermione ha e been co7possessors in the concept of owners of a &< hectare parcel of land until they di ided the property e%ually on the Dth year' 4f on the @th year after the di ision# Draco claims ownership of the portion allotted to Earry# Earry can assert title by ac%uisiti e prescription through possession for &; years# for he is deemed to ha e possessed his portion exclusi ely and continuously for a period of &* years' 4nterruption in possession of the thing
6oth the benefits and the prejudices that might ha e ta9en place during the co7possession shall attach to each of the co7participants 3rescription obtained by a co7possessor shall benefit the others 4nterruption in the possession of the whole or part of a thing shall be to the prejudice of all the possessors' 3ossession is interrupted for purposes of prescription either o =aturally !when through any cause it should cease for more than & year" o )i illy !when the interruption is produced by judicial summons to the possessor" 4n ci il interruption# only those possessors ser ed with judicial summons are affected' Cor ci il interruption to ta9e place# the possessor must ha e recei ed judicial summons' When will summons not be deemed to ha e been issued and shall not gi e rise to interruption? &' 4f it should be oid for lac9 of legal solemnities# or *' 4f the plaintiff should desist from the complaint or should all the proceedings to lapse# or -' 4f the possessor should be absol ed from the complaint' A notice for ad erse claim does =?/ interrupt prescription !Eeirs of ArGadon7)risologo $anon" 4nterruption must refer to the whole thing itself or part of it and not to a part or right of a co7possessor' 4n a co7possession# there is only one thing and many possessors' 4f the right of a co7possessor is contested# he alone shall be prejudiced' With respect to the thing# the prejudice shall be against all'
Art *44 A #ossessor in goo$ "aith is entitle$ to the "r,its recei'e$ e"ore the #ossession is legally interr,#te$& Nat,ral an$ in$,strial "r,its are consi$ere$ recei'e$ "rom the time they are gathere$ or se'ere$& :i'il "r,its are $eeme$ to accr,e $aily an$ elong to the #ossessor in goo$ "aith in that #ro#ortion& Art *4* I" at the time the goo$ "aith ceases+ there sho,l$ e any nat,ral or in$,strial "r,its+ the #ossessor shall ha'e a right to a #art o" the e/#enses o" c,lti'ation+ an$ to a #art o" the net har'est+ oth in #ro#ortion to the time o" #ossession&
50
PROPERTY NOTES
The charges shall e $i'i$e$ on the same asis y the two #ossessors& The owner o" the thing may+ sho,l$ he so $esire+ gi'e the #ossessor in goo$ "aith the right to "inish the c,lti'ation an$ gathering o" the growing "r,its+ as an in$emnity "or his #art o" the e/#enses o" c,lti'ation an$ the net #rocee$s( the #ossessor in goo$ "aith who "or any reason whate'er sho,l$ re",se to acce#t this concession+ shall lose the right to e in$emni"ie$ in any other manner& /he fruits of a thing generally belong to the owner !Art @@&" but a possessor in good faith is entitled to the fruits recei ed until good faith ceases and bad faith begins' :egal interruption of possession in good faith ta9es place upon ser ice of judicial summons to the possessor' o All fruits that the possessor may recei e from the time that he is summoned# or when he answers the complaint# must be deli ered or paid by him to the owner or lawful possessor' Whene er there is cessation of good faith in the eyes of the law# whether by reason of the filing of a complaint or not# possession in good faith should be deemed legally interrupted from such cessation and not merely from the ser ice of judicial summons' When the owner or possessor with a better right comes along# when he becomes aware that what he had ta9en for granted is at least doubtful# and when he learns the grounds in support of the ad erse claim# good faith ceases' 3ossessor in bad faith is not entitled to the fruits' Ee has the duty to reimburse the fruits recei ed including that which the legitimate possessor could ha e recei ed' /he right of the possessor in good faith is limited to the fruits# referring to natural# industrial and ci il fruits !Art @@&"' ?ther things !building" belong to the owner of the land'
Ninds of Cruits &' )i il fruits
3ossessor in Good Caith .ntitled to fruits from start of possession until legal interruption
3ossessor in 6ad Caith =ot entitled to fruits' Must pay damages as rental from time possession started until possession is finally defeated
*'
=aturalL4ndustrial Cruits $ight to retain fruits Must account for fruits and return alue of8 fruits actually recei ed# and fruits which the legal possessor could ha e recei ed with due care and diligence' Must pay damages as reasonable rent for the term of possession' 6ut entitled to necessary expenses for preser ation# culti ation# and gathering of fruits'
a' Gathered
b' 3ending
?wner has * options8 Cirst8 3ro7rating !based on period of possession" between possessor and owner of8 expenses# net har est and charges =o rights# not e en reimbursement of expenses for culti ation !because by right of accession# all fruits belong to owner without need to pay indemnity"
When fruits considered recei ed &' Cor natural and industrial fruits 2 from the time they are gathered or se ered' Cruits gathered before legal interruption belong to the possessor in good faith' *' Cor ci il fruits 2 their accrual# not their actual receipt# shall determine when they are considered recei ed at the time the good faith is legally interrupted' /hey are deemed to accrue daily and belong to the possessor in good faith in that proportion'
51
PROPERTY NOTES
+econd8 /o allow possessor to stay in possession until after all fruits are gathered !which shall ser e as the indemnity for expenses"
Must pay damages as reasonable rent for the term of possession
the #ossession ha'ing the o#tion o" re",n$ing the amo,nt o" the e/#enses or o" #aying the increase in 'al,e which the thing may ha'e ac6,ire$ y reason thereo"& Art *42 I" the ,se",l im#ro'ements can e remo'e$ witho,t $amage to the #rinci#al thing+ the #ossessor in goo$ "aith may remo'e them+ ,nless the #erson who reco'ers the #ossession e/ercises the o#tion ,n$er #aragra#h ) o" the #rece$ing article& Art *45 E/#enses "or #,re l,/,ry or mere #leas,re shall not e re",n$e$ to the #ossessor in goo$ "aith( ,t he may remo'e the ornaments with which he has em ellishe$ the #rinci#al thing i" it s,""ers no in!,ry there y+ an$ i" his s,ccessor in the #ossession $oes not #re"er to re",n$ the amo,nt e/#en$e$& Art *47 The #ossessor in a$ "aith shall reim ,rse the "r,its recei'e$ an$ those which the legitimate #ossessor co,l$ ha'e recei'e$+ an$ shall ha'e a right only to the e/#enses mentione$ in #aragra#h 1 o" Article *40 an$ in Article 44.& The e/#enses inc,rre$ in im#ro'ements "or #,re l,/,ry or mere #leas,re shall not e re",n$e$ to the #ossessor in a$ "aith+ ,t he may remo'e the o !ects "or which s,ch e/#enses ha'e een inc,rre$+ #ro'i$e$ that the thing s,""ers no in!,ry there y+ an$ that the law",l #ossessor $oes not #re"er to retain them y #aying the 'al,e they may ha'e at the time he enters into #ossession& .xpenses =ecessary .xpenses 3ossessor in Good Caith .ntitled to reimbursement $ight of retention pending full reimbursements 3ossessor in 6ad Caith .ntitled to reimbursement =o right of retention5 must acate property !recourse is to file collection case" :iable for damages as reasonable rent for period of possession =o rights
3roportionate di ision of fruits and expenses Art <@< does not apply when the possessor is in bad faith# the fruits are ci il# or the fruits are natural or industrial but they ha e been gathered or se ered when good faith ceases A possessor in bad faith has no right whatsoe er to the fruits# gathered or pending# except only necessary expenses for gathered fruit !Art @@-# @@K"' +ince ci il fruits are produced day by day# Art <@< does not apply to them' 4n the case of fruits already gathered at the time good faith ceases# it is Art <@@ that is applicable' 4f there are pending natural and industrial fruits at the time good faith ceases# the two possessors shall share in the expense of culti ation and the charges !expenses made not on the property itself but on account of it# such as taxes# interest on mortgages" in proportion to the time of possession' /hey will also share on the fruits in proportion to the time of possession as well' What if there are no fruits or the fruits are less than expenses? o 4f there is no net har est because there are no fruits or the fruits are less than the expenses# art <@< wont apply' 4f the fruits are merely insufficient# the same should be di ided in proportion to their respecti e expenses' o =o fruits? .ach should bear his own expenses subject to the right of the possessor in good faith to be refunded for necessary expenses under Art <@H# unless the owner of new possessor exercises his option referred to abo e' Art *40 Necessary e/#enses shall e re",n$e$ to e'ery #ossessor( ,t only the #ossessor in goo$ "aith may retain the thing ,ntil he has reim ,rse$ there"ore& Cse",l e/#enses shall e re",n$e$ only to the #ossessor in goo$ "aith with the same retention+ the #erson who has $e"eate$ him in
(seful expenses
?wner has * options8 ?ption &8 reimbursement of
52
PROPERTY NOTES
either !a" amount spent or !b" increase in alue with right of retention with full payment' ?ption *8 /o allow possessor to remo e pro ided no substantial damage or injury is caused ?wner has * options8 ?ption &8 to allow possessor to remo e ornaments if the principal suffers no injury ?ption *8 to retain the ornament by refunding the amount spent for the ornament
con enience or enjoyment of particular possessors' )ase doctrine A possessor in bad faith is entitled to be reimbursed for her expenses in restoring a house to its original condition after it had been partly damaged by fire# because such expenses are necessary# and under <@H# are to be refunded e en to possessors in bad faith' A builder in bad faith# under @@K# is not entitled to reimbursement' 6ut @@K is a rule of accession# which is not applicable where a new house was not built on the land of another but only repairs were made on a house that had been partly destroyed by fire' /his latter case comes under <@H which pro ides for the refund of necessary expenses to e ery possessor' !)osio 3alileo" Art& **9& The costs o" litigation o'er the #ro#erty shall e orne y e'ery #ossessor& HnI Art& **1& Im#ro'ements ca,se$ y nat,re or time shall always ins,re to the ene"it o" the #erson who has s,ccee$e$ in reco'ering #ossession& H4*0I 4mpro ements caused by nature or time Article <<& co ers all the natural accessions mentioned in Articles @<I to @H< which must follow the ownership of the principal thing# and generally# all impro ements that are not due to the will of the possessor' /he former possessor got the benefits from the property during his possession' 4t is but just that the impro ements mentioned which ta9e place after the possession is reco ered inure to the owner or lawful possessor' Eence# he should not pay for them' Art& **)& A #ossessor in goo$ "aith shall not e lia le "or the $eterioration or loss o" the thing #ossesse$+ e/ce#t in cases in which it is #ro'e$ that he has acte$ with "ra,$,lent intent or negligence+ a"ter the !,$icial s,mmons& A #ossessor in a$ "aith shall e lia le "or $eterioration or loss in e'ery case+ e'en i" ca,se$ y a "ort,ito,s e'ent& H4*2aI Art& **.& One who reco'ers #ossession shall not e o lige$ to #ay "or im#ro'ements which ha'e cease$ to e/ist at the time he ta-es #ossession o" the thing& H4*5I
:uxurious expenses
?wner has * options8 ?ption &8 to allow possessor to remo e ornaments if the principal suffers no injury ?ption *8 to retain the ornament by refunding the alue of the ornament at the time owner enters into possession !which means depreciated alue" Always liable whether before or after ser ice of judicial summons# for any cause# e en fortuitous e ent'
DeteriorationLloss
=o liability unless due to fraudulent intent or negligence after ser ice of judicial summons
=ecessary expenses are made for the preser ation of the thing of those which see9 to pre ent the waste# deterioration# or loss of the thing5 or those without which the thing would deteriorate or be lost' (seful expenses are expenses which add alue to a thing# or augment its income' :uxurious expenses are expenses not necessary for the preser ation of a thing nor do they increase its producti ity although they add alue to the thing# but are incurred merely to embellish the thing and for the
53
PROPERTY NOTES
4mpro ements which ha e ceased to exist /he impro ements referred to were enjoyed by the possessor alone' Ea ing ceased to exist# the owner or lawful possessor who came too late cannot benefit from them' 6ut he is liable for necessary expenses e en if the thing for which they were incurred no longer exists' =ecessary expenses are not considered impro ements' Art& **4& A #resent #ossessor who shows his #ossession at some #re'io,s time+ is #res,me$ to ha'e hel$ #ossession also $,ring the interme$iate #erio$+ in the a sence o" #roo" to the contrary& H4*7I 3resumption of possession during inter ening period /his article contemplates a situation where a present possessor is able to pro e his possession of a property at a prior period but not his possession during the inter ening period' Ee is presumed to ha e possessed the property continuously without interruption# unless the contrary is pro ed' /he presumption is useful for purposes of prescription' Art& ***& A #ossessor may lose his #ossession% 1& =y the a an$onment o" the thing( )& =y an assignment ma$e to another either y onero,s or grat,ito,s title( .& =y the $estr,ction or total loss o" the thing+ or eca,se it goes o,t o" commerce( 4& =y the #ossession o" another+ s, !ect to the #ro'isions o" Article *.2+ i" the new #ossession has laste$ longer than one year& =,t the real right o" #ossession is not lost till a"ter the la#se o" ten years& H409aI Modes of losing possession /his pro ision applies to both real and personal property except no' @ which ob iously refers only to personal property !obvious raw eh, sabi ni de ;eon3 -abang naman niya"3 /he next article is expressly made applicable only to mo ables' What is abandonment? Abandonment is the oluntary renunciation of all rights which a person has o er a thing thereby allowing a third person to ac%uire ownership or
possession thereof by means of occupancy' /he abandoner may be the owner or a mere possessor but the latter ob iously cannot abandon ownership which belongs to another' !obviously raw7" +ince abandonment in ol es the renunciation of a property right# the abandoner must ha e a right to the thing possessed and the legal capacity to renounce it' An owner of property cannot be held to ha e abandoned the same until at least he has some 9nowledge of the loss of its possession or of the thing# and a thing cannot be considered abandoned under the law until the spes recuperandi !hope of reco ery" is gone and the animus revertendi !intention to return" is finally gi en up' 6y oluntary abandonment# a thing becomes without a owner or possessor and is con erted into res nullius and may thus be ac%uired by a third person by occupation' Abandonment which con erts the thing into res nullius can hardly apply to land' )astellano Crancisco stated that abandonment re%uires8 &' A clear and absolute intention to renounce a right or a claim or to abandon a right or property# and *' An external act by which that intention is expressed or carried into effect' /he intention to abandon implies a departure# with the a owed intent of ne er returning# resuming or claiming the right and the interest that ha e been abandoned' !)astellano Crancisco"
Assignment? Assignment is understood to mean the complete transmission of the thing or right to another by any lawful manner' 4t may be onerous or by gratuitous title' /he effect is that he who was the owner or possessor is no longer so' Abandonment is always gratuitous' Destruction# total loss# or withdrawal from commerce Destruction or total loss co ers not only that which is caused oluntarily or intentionally but also that which is caused by accident' A thing is lost when it perishes# or goes out of commerce# or disappears# etc' !Art &&DK"
54
PROPERTY NOTES
3ossession of another for more than one year /his refers to possession de %acto !as a fact or material possession" and not de jure !legal right or real right of possession" After one year# the former possessor can no longer bring any action for forcible entry or unlawful detainer' 3ossession by mere tolerance e en for o er a year does not affect possession de %acto' After &; years# the possessor or owner may bring an accion publiciana or reivindicatoria to reco er possession de jure unless he is barred by prescription' $eco ery by lawful owner or possessor 3ossession may also be lost when it is reco ered from the person in possession by the lawful owner in a rei indicatory action or by the lawful possessor in an action to reco er the better right of possession' Art& **0& The #ossession o" mo'a les is not $eeme$ lost so long as they remain ,n$er the control o" the #ossessor+ e'en tho,gh "or the time eing he may not -now their wherea o,ts& H401I :oss of possession of mo ables /he possession of mo ables shall be deemed lost when they cease to be under the control of the possessor either becaue8 o /hey ha e come into the possession of a third person5 or o Although# they ha e not been ta9en by another# /he possessor has completely no idea of their whereabouts or location !the pet rat has been missing for sometime5 or . en if 9nown# they cannot be reco ered# whether as a matter of fact !an unopened box of pastillas has been dropped in a deep la9e" or of law !a mo able lost by prescription"' 3ossession is not lost by the mere fact that the possessor does not 9now for the time being the precise whereabout of a specific mo able when he has not gi en up all hope of finding it !li9e a ring misplaced or lost in particular icinity"' 4n this case# the possessor has not lost his legal right to the object' o Ee retains his juridical control of the thing which remains in his patrimony'
Art& **2& The #ossession o" immo'a les an$ o" real rights is not $eeme$ lost+ or trans"erre$ "or #,r#oses o" #rescri#tion to the #re!,$ice o" thir$ #ersons+ e/ce#t in accor$ance with the #ro'isions o" the Mortgage Law an$ the Lan$ Registration laws& H40)aI :oss of possession of immo ables and real rights with respect to third persons /hird persons are not prejudiced except in accordance with the pro isions of the mortgage law and the registration law' Against a recorded title# ordinary prescription of ownership or real rights shall not ta9e place to the prejudice of a third person# except in irtue of another title also recorded and the time shall begin to run from the recording of the latter' Art& **5& Acts relating to #ossession+ e/ec,te$ or agree$ to y one who #ossesses a thing elonging to another as a mere hol$er to en!oy or -ee# it+ in any character+ $o not in$ or #re!,$ice the owner+ ,nless he ga'e sai$ hol$er e/#ress a,thority to $o s,ch acts+ or rati"ies them s, se6,ently& H40.I 3ossessory acts of a mere holder /he possessor referred to in this article is the same possessor mentioned in Article <*<' Acts relating to possession of a mere holder do not bind or prejudice the possessor in the concept of owner unless said acts were pre iously authoriGed or subse%uently ratified by the latter' 3ossession may be ac%uired for another by a stranger pro ided there be subse%uent ratification' !Art <-*" Art& **7& The #ossession o" mo'a le #ro#erty ac6,ire$ in goo$ "aith is e6,i'alent to a title& Ne'ertheless+ one who has lost any mo'a le or has een ,nlaw",lly $e#ri'e$ thereo" may reco'er it "rom the #erson in #ossession o" the same& I" the #ossessor o" a mo'a le lost or which the owner has een ,nlaw",lly $e#ri'e$+ has ac6,ire$ it in goo$ "aith at a #, lic sale+ the owner cannot o tain its ret,rn witho,t reim ,rsing the #rice #ai$ there"or& H404aI $ight of possessor who ac%uires mo able claimed by another 4f the possession of a mo able property who ac%uired in bad faith# no
55
PROPERTY NOTES
right thereto is ac%uired by the possessor' /he property may be reco ered by the true owner or possessor without reimbursement' 4f the ac%uisition was in good faith# here are the rules8 o 3ossession in good faith of a mo able is presumed ownership' 4t is e%ui alent to title' /his is 9nown as the doctrine of irrre indicability' =o further proof is necessary' o /he possessors title# howe er# is not absolute' 4t is e%ui alent to title but is not title itself' 4t is merely presumpti e because it can be defeated by the true owner' /hese are the two exceptions to the general rule of irre indicability' An owner can reco er in these two instances8 &' When one has lost the mo able# or *' When one has been unlawfully depri ed' Ee may reco er without reimbursement' 6ut if the thing was sold at a public sale# the owner must reimburse the buyer' /hese are the exceptions to the exceptions' . en when an owner has lost or has been unlawfully depri ed# he still cannot reco er in these instances8 &' When the sale is made at merchants stores# fairs or mar9ets' *' When the owner of the mo able is# by his conduct# precluded from denying the sellers authority to sell5 -' Where the law enables the apparent owner to dispose of the mo ables as if he were the true owner thereof @' Where the sale is sanctioned by statutory or judicial authority <' Where the seller has a oidable title which has not been a oided at the time of the sale to the buyer in good faith for alue and without notice of the sellers defect of title !remember ):F>" H' Where reco ery is no longer possible because of prescription I' Where the possessor becomes the owner of the thing in accordance with the principle of finders 9eepers
respected and protected in his possession as if he were the true owner thereof until a competent court rules otherwise' 4n the meantime# as the true owner# the possessor in good faith cannot be compelled to surrender possession nor to be re%uired to institute an action for the reco ery of the chattel' !.du GomeG" A third party who ac%uired in good faith a stolen ehicle and registered it in his own name cannot lawfully refuse to return it to the true owner and insist upon reimbursement before deli ery' !AGnar Mapdiangco 2 stealing e9uals unlaw%ul deprivation" /he owner of a ring pledged to a pawnshop by one to whom he has entrusted it to be sold on commission can reco er it from the pawnshop' !DiGon +untay"
Art& *09& <il$ animals are #ossesse$ only while they are ,n$er oneJs control( $omesticate$ or tame$ animals are consi$ere$ $omestic or tame i" they retain the ha it o" ret,rning to the #remises o" the #ossessor& H40*I 3ossession of animals Animals may be8 &' Wild or animals li ing in a state of nature independently of and without the aid and care of man !great white shar9# ornate wobbegong# braGilian slug" *' Domesticated or tamed# or animals which are wild or sa age by nature but ha e been subdued and made use of by man and become accustomed to li e in a tamed condition !tiger ni )ha it" -' Domestic or tame# or any of the arious animals which li e and are born and reared# under the control and care of man# lac9ing the instinct to roam freely !dog# cat# carabao# cow" Wild animals may be the object of hunting' /hey are possessed only if they are under ones control' 3ossession of wild animals are lost when they regain their freedom or come under anothers control' Domesticated animals are possessed if they habitually return to the premises of the possessor' Art& *01& One who reco'ers+ accor$ing to law+ #ossession ,n!,stly lost+ shall e $eeme$ "or all #,r#oses which may re$o,n$ to his ene"it+ to ha'e en!oye$ it witho,t interr,#tion& H400I
)ase doctrines =on7payment does not oid a sale' 4t is perfected upon the meeting of the minds' Eence# ownership shall pass from the endor to the endee upon the actual or constructi e deli ery of the thing sold' 4t does not constitute unlawful depri ation of personal property' 4t is a mere oidable sale# and unless it is a oided before the execution of the second sale# then the second sale is alid' !.D)A +antos" 3urchaser in good faith of a chattel or mo able property is entitled to be
56
PROPERTY NOTES
/his article applies to both possession in good faith as well as to possession in bad faith# but only if beneficial to the possessor !li9e for purposes of prescription" /he reco ery of possession must be according to law 2 through legal means5 otherwise# the benefit of continuous and uninterrupted possession during the inter ening period cannot be in o9ed'
TITLE VI 1 CSC3RC:T :;APTER ONE% CSC3RC:T IN >ENERAL

Art& *0)& Cs,"r,ct gi'es a right to en!oy the #ro#erty o" another with the o ligation o" #reser'ing its "orm an$ s, stance+ ,nless the title constit,ting it or the law otherwise #ro'i$es& H402I What is usufruct? &' A right to enjoy the property of another with the obligation of preser ing its form and substance *' $ight to enjoy the property of another temporarily# including both the jus utendi and jus %ruendi# with the owner retaining the jus disponendi -' 4n essence# usufruct is nothing else but simply allowing one to enjoy anothers propery What are the characteristics of usufruct? &' 4t is a real right of use and enjoyment# !whether registered or not in the $egistry of 3roperty' $egistering will affect and bind third persons" *' ?f /emporary duration5 -' /ransmissible5 and @' May be constituted on real or personal property# consumable or non7 consumable# tangible or intangible# the ownership of which is ested in another A person cannot create a usufruct o er his own property and at the same time retain ownership of the same A usufruct is essentially jus in re aliena# and to be a usufructuary of ones own property is in law a contradiction in terms and a conceptual absurdity /he essential re%uisite of usufruct is the right to enjoy the property of another /he usufructuary is entitled to all the fruits of the property with the obligation to preser e its form and substance
Eowe er# the obligation of the usufructuary to preser e is only accidental for the law or the will of the parties may modify or e en eliminate it /wo classifications based on whether or not impairment of object is allowed8 &' =ormal# perfect or regular 2 in o l es non7consumable things which the usufructuary can enjoy without altering the form or substance# through they may detoriorate or diminish by time or by use *' Abnormal# imperfect# irregular or %uasi7usufruct 2 in ol es things which would be useless to the usufructuary unless they are consumed or expended# such as money# grain# li%uors# etc (sufruct $eal ?wner of agent May be by law# by contract# by will of testator# or by prescription All the fruits and all the uses and benefits of the entire property !generally" More or less passi e owner who allows the usufructuary to enjoy the object (sufructuary to pay :ease 3ersonal May not be the owner 6y contract
=ature of right )reator of right ?rigin
.xtent of enjoyment
)ertain uses only !those stipulated" Acti e owner or lessor who ma9es the lessee enjoy :essee not generally under the obligation to pay taxes or underta9e repairs
)ause
$epairs and taxes
Art& *0.& Cs,"r,ct is constit,te$ y law+ y the will o" #ri'ate #ersons e/#resse$ in acts inter 'i'os or in a last will an$ testament+ an$ y #rescri#tion& H405I )reation of usufruct (sufruct may e classified according to how it is created into8 &' :egal# or that created or declared by law
57
PROPERTY NOTES
*' -'
Foluntary# or that created by will of the parties !an act inter i os or an act mortis causa" Mixed or that ac%uired by prescription
an$ ci'il "r,its o" the #ro#erty in ,s,"r,ct& <ith res#ect to hi$$en treas,re which may e "o,n$ on the lan$ or tenement+ he shall e consi$ere$ a stranger& H421I )lassifications of the rights of the usufructuary &' As to the thing and its fruits a' /o recei e the fruits of the property in usufruct and half of the hidden treasure he accidentally finds on the property b' /o enjoy any increase which the thing in usufruct may ac%uire through accession c' /o personally enjoy the thing in usufruct or lease it to another d' /o ma9e on the property in usufruct such impro ements or expenses he may deem property and to remo e the impro ements pro ided no damage is caused to the property e' /o set7off the impro ements he may ha e made on the property against any damage to the same f' /o retain the thing until he is reimbursed for ad ances for extraordinary expenses and taxes on the capital *' As to the usufruct itself a' /o alienate !or mortgage" the right of usufruct except parental usufruct b' 4n a usufruct to reco er property or a real right# to bring the action and to oblige the owner thereof to gi e him proper authority and necessary proof# and c' 4n a usufruct of part of a common property# to exercise all the rights pertaining to the co7owner with respect to the administration and collection of fruits or interests from the property -' As to ad ances and damages a' /o be reimbursed for indispensable extraordinary repairs made by him in an amount e%ual to the increase in alue which the property may ha e ac%uired by reason of such repairs b' /o be reimbursed for taxes on the capital ad anced by him# and c' /o be indemnified for damages caused to him by the na9ed owner' /he usufructuary is gi en the right to enjoy the property in usufruct and
Art& *04& Cs,"r,ct may e constit,te$ on the whole or a #art o" the "r,its o" the thing+ in "a'or o" one more #ersons+ sim,ltaneo,sly or s,ccessi'ely+ an$ in e'ery case "rom or to a certain $ay+ #,rely or con$itionally& It may also e constit,te$ on a right+ #ro'i$e$ it is not strictly #ersonal or intransmissi le& H407I Ninds of usufruct defined (sufruct may be &' As to extent of object a' /otal !constituted on the whole of a thing" b' 3artial !constituted only on a part of a thing" *' As to number of beneficiaries a' +imple !only one" b' Multiple !se eral usufructuaries" i' +imultaneous# or ii' +uccessi e -' As to effecti ity or extinguishment a' 3ure b' With a term !may be suspensi e or resolutory" c' )onditional !may be suspensi e or resolutory" @' As to subject matter a' ? er things !tangible property" b' ? er rights !intangible property which are not intransmissible" Art& *0*& The rights an$ o ligations o" the ,s,"r,ct,ary shall e those #ro'i$e$ in the title constit,ting the ,s,"r,ct( in $e"a,lt o" s,ch title+ or in case it is $e"icient+ the #ro'isions containe$ in the two "ollowing :ha#ters shall e o ser'e$& H429I 4n case of conflict between the will of the person creating the usufruct and the )i il code# the former pre ails'
:;APTER T<O RI>;TS O3 T;E CSC3RC:TCARY Art& *00& The ,s,"r,ct,ary shall e entitle$ to all the nat,ral+ in$,strial
58
PROPERTY NOTES
he is entitled to the fruits' /he usufructuary has the right to recei e all the fruits except8 a' where the usufruct is constituted only on a part of the fruits of a thing or b' where there is an agreement to the contrary' /he na9ed owner retains and can exercise all the rights as owner o er the property limited only by the right of enjoyment of the usufructuary' 3roducts which when ta9en from the property diminishes its substance are not to be treated as fruits' /hey form part of the capital and belong to the na9ed owner# and not to the usufructuary in the absence of a contrary intent between the parties' /he usufructuary is not entitled to any hidden treasure because its not considered as Bfruits' Eowe er# as a stranger# he is entitled to P if he is the finder'
owner but he is bound to reimburse the usufructuary the ordinary culti ation expenses out of the fruits recei ed' Manresa opines that if at the termination of the usufruct# force majeure should pre ent the usufructuary from gathering the fruits# said fruits shall belong to him and not the na9ed owner'
Art& *05& I" the ,s,"r,ct,ary has lease$ the lan$s or tenements gi'en in ,s,"r,ct+ an$ the ,s,"r,ct sho,l$ e/#ire e"ore the termination o" the lease+ he or his heirs an$ s,ccessors shall recei'e only the #ro#ortionate share o" the rent that m,st e #ai$ y the lessee& H42.I Art& *07& :i'il "r,its are $eeme$ to accr,e $aily+ an$ elong to the ,s,"r,ct,ary in #ro#ortion to the time the ,s,"r,ct may last& H424I :ease by the usufrucutary /he usufructuary may lease the property in usufruct to another' 4f the usufrcut should expire before the termination of the lease# the usufructuary or his heirs and successors are entitled only to the rents corresponding to the duration of the usufruct' /he rents for the remaining period of the lease belong to the owner' Art& *29& <hene'er a ,s,"r,ct is constit,te$ on the right to recei'e a rent or #erio$ical #ension+ whether in money or in "r,its+ or in the interest on on$s or sec,rities #aya le to earer+ each #ayment $,e shall e consi$ere$ as the #rocee$s or "r,its o" s,ch right& <hene'er it consists in the en!oyment o" ene"its accr,ing "rom a #artici#ation in any in$,strial or commercial enter#rise+ the $ate o" the $istri ,tion o" which is not "i/e$+ s,ch ene"its shall ha'e the same character& In either case they shall e $istri ,te$ as ci'il "r,its+ an$ shall e a##lie$ in the manner #rescri e$ in the #rece$ing article& H42*I (sufruct constituted on certain rights . ery benefit or payment shall be considered and distributed as ci il fruit of such right' 3ayment and benefits that accrue after the termination of the usufruct belong to the owner' /he date when the benefits accrue determines whether they should belong to the usufructuary or to the owner' Art <I; applies whether or not the date of distribution of benefits is fixed'
Art& *02& Nat,ral or in$,strial "r,its growing at the time the ,s,"r,ct egins+ elong to the ,s,"r,ct,ary& Those growing at the time the ,s,"r,ct terminates+ elong to the owner& In the #rece$ing cases+ the ,s,"r,ct,ary+ at the eginning o" the ,s,"r,ct+ has no o ligation to re",n$ to the owner any e/#enses inc,rre$( ,t the owner shall e o lige$ to reim ,rse at the termination o" the ,s,"r,ct+ "rom the #rocee$s o" the growing "r,its+ the or$inary e/#enses o" c,lti'ation+ "or see$+ an$ other similar e/#enses inc,rre$ y the ,s,"r,ct,ary& The #ro'isions o" this article shall not #re!,$ice the rights o" thir$ #ersons+ ac6,ire$ either at the eginning or at the termination o" the ,s,"r,ct& H42)I $ight of the usufructuary to pending natural and industrial fruits /his article does not apply to ci il fruits' Cor fruits growing at the beginning of usufruct# they belong to the usufructuary who is not bound to refund to the owner the expenses of culti ation and production incurred' o Eowe er# in case the expenses were incurred by innocent third persons# the usufructuary under Art @@-# pursuant to the last paragraph of Art <HI# has the obligation to pay the expenses made' Cor fruits growing at the termination of the usufruct# they belong to the
59
PROPERTY NOTES
)ase doctrine A stoc9 di idend is considered ci il fruit and belongs to the usufructuary' !6achrach +eifert" Art& *21& The ,s,"r,ct,ary shall ha'e the right to en!oy any increase which the thing in ,s,"r,ct may ac6,ire thro,gh accession+ the ser'it,$es esta lishe$ in its "a'or+ an$+ in general+ all the ene"its inherent therein& H427I .xtent of rights of usufructuary /he usufructuary is generally entitled to all the benefits that the thing in usufruct can gi e including any increase by accession and ser itudes established in his fa or' $eason is that usufruct co ers the entire jus %ruendi and jus utendi3 Art& *2)& The ,s,"r,ct,ary may #ersonally en!oy the thing in ,s,"r,ct+ lease it to another+ or alienate his right o" ,s,"r,ct+ e'en y a grat,ito,s title( ,t all the contracts he may enter into as s,ch ,s,"r,ct,ary shall terminate ,#on the e/#iration o" the ,s,"r,ct+ sa'ing leases o" r,ral lan$s+ which shall e consi$ere$ as s, sisting $,ring the agric,lt,ral year& H459I /ransactions by the usufructuary with respect to the thing in usufruct# he may lease it e en without the owners consent but not being the owner# the usufructuary cannot alienate# pledge or mortgage the thing itself' Ee may sell future crops subject to the rule that those ungathered at the time when the usufruct terminates belong to the owner' when the things gi en in usufruct cannot be used without being consumed or were appraised when deli ered# the usufructuary may dispose of them' With respect to the right of usufruct# since the usufructuary is the owner of the right itselt# he may alienate# pledge or mortgage it# e en by gratuitous title' o 6ut the legal usufruct of the parent o er his or her unemancipated children cannot be alienated# pledged# or mortgaged for the right is personal and intransmissible
o o
burdened as it is by important obligations of the parent for the benefit of the children' A usufruct gi en in consideration of the person of the usufructuary to last during his lifetime is also personal# and therefore# intransmissible' As a rule# all contracts entered into by the usufructuary shall terminate upon the expiration of the usufruct or earlier# except rural leases which continue during the agricultural year'
)ase doctrine A usufructuary of rents# as a corollary to the right to all the rents# to choose the tenant# and to fix the amount of the rent# necessarily has the right to choose himself as the tenant# pro ided that the obligations he has assumed towards the owner of the property are fulfilled' !Cabie Da id" Art& *2.& <hene'er the ,s,"r,ct incl,$es things which+ witho,t eing cons,me$+ gra$,ally $eteriorate thro,gh wear an$ tear+ the ,s,"r,ct,ary shall ha'e the right to ma-e ,se thereo" in accor$ance with the #,r#ose "or which they are inten$e$+ an$ shall not e o lige$ to ret,rn them at the termination o" the ,s,"r,ct e/ce#t in their con$ition at that time( ,t he shall e o lige$ to in$emni"y the owner "or any $eterioration they may ha'e s,""ere$ y reason o" his "ra,$ or negligence& H451I (sufruct on things which gradually deteriorate /his article gi es an instance of abnormal usufruct because in the enjoyment of the property the usufructuary cannot preser e its form or substance' Eere the thing gradually deteriorates through wear and tear or normal use' /he usufructuary is not responsible for the deterioration due to wear and tear nor is he re%uired to ma9e any repairs to restore it to its formal condition' Ee needs only to return the thing at the termination of the usufruct in the condition it may be at that time' /he usufructuary is liable for damage suffered by the thing by reason of his fraud or negligence although such liability may be set7off against the impro ements he may ha e made on the property' /he usufructuary does not answer for deterioration due to a fortuitous e ent' Ee is# howe er# obligated to ma9e the ordinary repairs needed by
60
PROPERTY NOTES
the thing' Art& *24& <hene'er the ,s,"r,ct incl,$es things which cannot e ,se$ witho,t eing cons,me$+ the ,s,"r,ct,ary shall ha'e the right to ma-e ,se o" them ,n$er the o ligation o" #aying their a##raise$ 'al,e at the termination o" the ,s,"r,ct+ i" they were a##raise$ when $eli'ere$& In case they were not a##raise$+ he shall ha'e the right to ret,rn at the same 6,antity an$ 6,ality+ or #ay their c,rrent #rice at the time the ,s,"r,ct ceases& H45)I (sufruct on consumable things /his is another instance of abnormal usufruct because the thing in usufruct cannot be used without being consumed# li9e money !but thats really a simple loan# where the usufructuary can deal with the money as owner'" /he usufructuary shall ha e the right to ma9e use of the consumable thing' At the termination of the usufruct# he must8 &' 3ay its appraised aluel or *' 4f there was no appraisal made# either8 a' $eturn the same %uantity and %uality# or b' 3ay its current price at such termination' Art& *2*& The ,s,"r,ct,ary o" "r,it1 earing trees an$ shr, s may ma-e ,se o" the $ea$ tr,n-s+ an$ e'en o" those c,t o"" or ,#roote$ y acci$ent+ ,n$er the o ligation to re#lace them with new #lants& H45.aI Art& *20& I" in conse6,ence o" a calamity or e/traor$inary e'ent+ the trees or shr, s shall ha'e $isa##eare$ in s,ch consi$era le n,m er that it wo,l$ not e #ossi le or it wo,l$ e too ,r$ensome to re#lace them+ the ,s,"r,ct,ary may lea'e the $ea$+ "allen or ,#roote$ tr,n-s at the $is#osal o" the owner+ an$ $eman$ that the latter remo'e them an$ clear the lan$& H454aI (sufruct on fruit7bearing trees and shrubs /he usufructuary is gi en the right to ma9e use of dead trun9s and those cut7off or uprooted by accident but he must place them with new plants because he has the obligation to preser e the form or substance of the property in usufruct' ?f course# the usufructuary has no obligation to replace with new plants# the dead trees or shrubs already existing at the beginning of the
usufruct' (nder article <IH# the usufructuary is not responsible for dead# fallen or uprooted trun9s caused by calamity or extra7ordinary e ents' 4f it would not be possible or be too burdensome to replace them# he may demand that the owner remo e them and clear the land' Ee may use the trun9s but he is re%uired to replace them with new plants under Article <I<' 4f replacing the trun9s could not be too burdensome# the usufructuary must replace them# whether or not he ma9es use of them'
Art& *22& The ,s,"r,ct,ary o" woo$lan$ may en!oy all the ene"its which it may #ro$,ce accor$ing to its nat,re& I" the woo$lan$ is a co#se or consists o" tim er "or ,il$ing+ the ,s,"r,ct,ary may $o s,ch or$inary c,tting or "elling as the owner was in the ha it o" $oing+ an$ in $e"a,lt o" this+ he may $o so in accor$ance with the c,stom o" the #lace+ as to the manner+ amo,nt an$ season& In any case the "elling or c,tting o" trees shall e ma$e in s,ch manner as not to #re!,$ice the #reser'ation o" the lan$& In n,rseries+ the ,s,"r,ct,ary may ma-e the necessary thinnings in or$er that the remaining trees may #ro#erly grow& <ith the e/ce#tion o" the #ro'isions o" the #rece$ing #aragra#hs+ the ,s,"r,ct,ary cannot c,t $own trees ,nless it e to restore or im#ro'e some o" the things in ,s,"r,ct+ an$ in s,ch case shall "irst in"orm the owner o" the necessity "or the wor-& H45*I (sufruct on woodland and nurseries /he woodland may be a copse or may consist of timber for building' /he usufructuary may fell or cut trees as the owner was in the habit of doing or in accordance with the customs of the place as to manner# amount and season' 4n any case# he must not prejudice the preser ation of the land' /he usufructuary cannot cut down trees other than as mentioned abo e unless it be for repair or impro ement of the things in usufruct but in such case# the owner must be informed of the necessity for the wor9' 4n nurseries# the usufructuary may ma9e the necessary thinnings in order that the remaining trees may properly grow' Art& *25& The ,s,"r,ct,ary o" an action to reco'er real #ro#erty or a real right+ or any mo'a le #ro#erty+ has the right to ring the action an$ to o lige the owner thereo" to gi'e him the a,thority "or this #,r#ose an$
61
PROPERTY NOTES
to ",rnish him whate'er #roo" he may ha'e& I" in conse6,ence o" the en"orcement o" the action he ac6,ires the thing claime$+ the ,s,"r,ct shall e limite$ to the "r,its+ the $ominion remaining with the owner& H450I (sufruct of judicial action to reco er /his article applies if the purpose of the action is to reco er real property or personal property or real right o er real or personal property /he action may be instituted in the name of the usufructuary ! s an agent who institutes the action in the name of the principal" /he usufructuary may oblige the owner to gi e him the necessary authority to bring the action 4n case of fa orable judgment# the usufruct shall be limited to the fruits# with the na9ed ownership belonging to the owner' With the termination of the case# the usufruct of the action comes to an end' Art& *27& The ,s,"r,ct,ary may ma-e on the #ro#erty hel$ in ,s,"r,ct s,ch ,se",l im#ro'ements or e/#enses "or mere #leas,re as he may $eem #ro#er+ #ro'i$e$ he $oes not alter its "orm or s, stance( ,t he shall ha'e no right to e in$emni"ie$ there"or& ;e may+ howe'er+ remo'e s,ch im#ro'ements+ sho,l$ it e #ossi le to $o so witho,t $amage to the #ro#erty& H452I What happens when a usufructuary ma9es useful or luxurious expenses? /he usufructuary has the right to ma9e impro ements# useful or luxurious# as he may deem proper' What are the rules? &' Ee must not alter the form or substance of the property# *' Ee may remo e the impro ements only if it is possible to do so without damage to the property -' Ee has no right to be indemnified for the impro ements if he does not exercise his right to remo e o Ee cannot in o9e the rights of a possessor in good faith in the concept of owner @' 4f the impro ements cannot be remo ed without damage# he may set7off the same against any damage caused by him to the property !Art <D;" <' 4f the usufructuary does not wish to exercise his right of remo al# the owner cannot compel him to remo e the impro ements
H' I' D'
4f the usufructuary wishes to exercise his right of remo al# the owner cannot pre ent him by offering to reimburse him /he usufructuarys right to remo e the impro ements includes the right to destroy them pro ided no damage is caused to the property /he right to remo e is enforceable only against the owner# but not against a purchaser in good faith to whom a clean title has been issued o $ight to remo e the impro ements should be annotated on the certificate of title# so that it can be enforced against third parties
)ase doctrines 6y express pro ision of law# the usufructuaries do not ha e the right to reimbursement for impro ements they may ha e introduced on the property' 4f the rule on reimbursement or indemnity were otherwise# then the usufructuary might impro e the owner out of his property' !Moralidad 3ernes"
Art& *59& The ,s,"r,ct,ary may set o"" the im#ro'ements he may ha'e ma$e on the #ro#erty against any $amage to the same& H455I $ight to set7off impro ements /his article presupposes that o the impro ements ha e increased the alue of the property and o the damage to the same was caused through the fault of the usufructuary' 4f the damage exceeds the alue of the impro ements# the usufructuary is liable for the difference as indemnity 4f the alue of the impro ements exceeds the damage# he may remo e the portion of the impro ements representing the excess in alue if this can be done without injury to the property# otherwise# the excess in alue accrues to the owner' Art& *51& The owner o" #ro#erty the ,s,"r,ct o" which is hel$ y another+ may alienate it+ ,t he cannot alter its "orm or s, stance+ or $o anything thereon which may e #re!,$icial to the ,s,"r,ct,ary& H457I
62
PROPERTY NOTES
$ights and obligations of the na9ed owner /he na9ed owner may alienate the property in usufruct because the title !dominium directum) remains ested in him' Ee may construct wor9s# ma9e impro ements# or ma9e new plantings on the property in usufruct' /he alienation by the na9ed owner cannot affect the usufruct which is registered or 9nown to the transferee' /he na9ed owner# howe er# cannot8 o alter the form or substance of the property# or o do anything thereon which may cause a diminution in the alue of the usufruct# or o be prejudicial to the rights of the usufructuary# otherwise# he shall be liable for damages' /he na9ed owner must8 o $espect leases of rural lands by the usufructuary for the balance of the agricultural year !Art <I*" o $eimburse him for ad ances made for extraordinary repairs !Art <K@"# and o $eimburse him for taxes on the capital !Art <KI" Art& *5)& The ,s,"r,ct,ary o" a #art o" a thing hel$ in common shall e/ercise all the rights #ertaining to the owner thereo" with res#ect to the a$ministration an$ the collection o" "r,its or interest& Sho,l$ the co1ownershi# cease y reason o" the $i'ision o" the thing hel$ in common+ the ,s,"r,ct o" the #art allotte$ to the co1owner shall elong to the ,s,"r,ct,ary& H479I (sufruct of part of common property 4n case a co7owner gi es the usufruct of his share to a person# the usufructuary shall exercise all the rights pertaining to the co7owner regarding the administration and the collection of the fruits or interest from the property /he usufructuary shall be bound by the partition made by the owners of the undi ided property although he too9 no part in the partition but the na9ed owner to whom the part held in usufruct has been allotted must respect the usufruct' )ase doctrine
A partition made by the owners of land is binding upon a person who has a usufructuary right in an undi ided part of the land# although the latter too9 no part in the partition of the property' /he right of the usufructuary is not affected by the di ision but it is limited to the fruits of the said part allotted to the co7owner' !3ichay ,uerol"
:;APTER . O=LI>ATIONS O3 T;E CSC3RC:TCARY

Art& *5.& The ,s,"r,ct,ary+ e"ore entering ,#on the en!oyment o" the #ro#erty+ is o lige$% H1I To ma-e+ a"ter notice to the owner or his legitimate re#resentati'e+ an in'entory o" all the #ro#erty+ which shall contain an a##raisal o" the mo'a les an$ a $escri#tion o" the con$ition o" the immo'a les( H)I To gi'e sec,rity+ in$ing himsel" to ",l"ill the o ligations im#ose$ ,#on him in accor$ance with this :ha#ter& H471I )lassifications of obligations of the usufructuary &' /hose be%ore the usufruct begins a' Ma9e an in entory of the property# which shall contain an appraisal of the mo ables and a description of the immo ables b' Gi e security *' /hose during the usufruct a' /a9e care of the property !Art <DK" b' /o replace with the young thereof animals that die or are lost in certain cases when the usufruct is constituted on floc9 or herd of li estoc9 !Art <K&" c' /o ma9e ordinary repairs !Art <K*# par &" d' /o notify the owner of urgent extraordinary repairs !Art <K-" e' /o permit wor9s and impro ements by the na9ed owner not prejudicial to the usufruct !Art <K<" f' /o pay annual taxes and charges on the fruits !Art <KH" g' /o pay interest on taxes on capital paid by the na9ed owner !Art <KI" h' /o pay debts when the usufruct is constituted on the whole of a patrimony !Art <KD" i' /o secure the na9ed owners or courts appro al to collect credits in certain cases !Art <KK"
63
PROPERTY NOTES
-'
/o notify the owner of any prejudicial act committed by third persons !Art H;&" 9' /o pay for court expenses and costs regarding usufruct !Art H;*" /hose at the termination of the usufruct a' /o return the thing in usufruct to the na9ed owner unless there is a right of retention !Art H&*" b' /o pay legal interest for the time that the usufruct lasts# on the amount spent by the owner for extraordinary repairs !Art <K@" and the proper interest on the sums paid as taxes by the owner !Art <KI"# and c' /o indemnify the na9ed owner for any losses due to his negligence or of his transferees' !Art <DK7<K;"
j'
+ee Art <D<' ?bligation to gi e security /he purpose of gi ing security is to insure the fulfillment by the usufructuary of the obligations imposed upon him :aw does not specify the 9ind of security that should be gi en Cailure to gi e security? +ee Art <DH' Art& *54& The #ro'isions o" No& ) o" the #rece$ing article shall not a##ly to the $onor who has reser'e$ the ,s,"r,ct o" the #ro#erty $onate$+ or to the #arents who are ,s,"r,ct,aries o" their chil$renJs #ro#erty+ e/ce#t when the #arents contract a secon$ marriage& H47)aI When obligation to gi e security not applicable /his article contains the legal exceptions to the obligation of the usufructuary to gi e security in two cases8 o /o the donor who has reser ed the usufruct of the property donated o /o the parents who are usufructuaries of their childrens parents# except when the parents contract a second marriage Art& *5*& The ,s,"r,ct,ary+ whate'er may e the title o" the ,s,"r,ct+ may e e/c,se$ "rom the o ligation o" ma-ing an in'entory or o" gi'ing sec,rity+ when no one will e in!,re$ there y& H47.I When obligation to ma9e in entory or to gi e security excused /he usufructuary may be excused from the obligation in the following cases8 &' Where the na9ed owner renounces or wai es his right to the in entory or security *' Where the title constituting the usufruct relie es the usufructuary from the obligation5 o 4s fre%uently true in usufructs constituted by a last will and testament or by a deed of donation in iew of the trust which the testator or donor has in the usufructuary -' Where the usufructuary as9s that he be exempted from the obligation and no one will be injured thereby' o /he usufructuary may apply to the courts for relief in case the na9ed owner refuses to grant the exemption where# for
?bligation to ma9e an in entory &' 3re ious notice to be gi en' 4n the ma9ing of the in entory# the concurrence of the na9ed owner is not re%uired' =ote that the law says Blegitimate# not legal representati e *' .xpenses of in entory 6orne by the usufructuary -' Corm of in entory Article <D- does not pro ide for the form of in entory' 4t may be contained in a pri ate document' Eowe er# a public instrument is necessary to affect third persons when there are immo ables' @' )ontents of in entory /he in entory shall contain o an itemiGed list and o an appraisal of the mo ables and o description of the condition of the immo ables' /he mo ables must be appraised because they are subject to greater danger of loss and deterioration' 6oth 9inds must be properly identified' Cailure to ma9e an in entory? (sufruct not extinguished# maybe owner can demand it' Are there instances where obligation to ma9e in entory is excused? Mes'
64
PROPERTY NOTES
example# the usufruct is o er the right to recei e a periodic income or pension Art& *50& Sho,l$ the ,s,"r,ct,ary "ail to gi'e sec,rity in the cases in which he is o,n$ to gi'e it+ the owner may $eman$ that the immo'a les e #lace$ ,n$er a$ministration+ that the mo'a les e sol$+ that the #, lic on$s+ instr,ments o" cre$it #aya le to or$er or to earer e con'erte$ into registere$ certi"icates or $e#osite$ in a anor #, lic instit,tion+ an$ that the ca#ital or s,ms in cash an$ the #rocee$s o" the sale o" the mo'a le #ro#erty e in'este$ in sa"e sec,rities& The interest on the #rocee$s o" the sale o" the mo'a les an$ that on #, lic sec,rities an$ on$s+ an$ the #rocee$s o" the #ro#erty #lace$ ,n$er a$ministration+ shall elong to the ,s,"r,ct,ary& 3,rthermore+ the owner may+ i" he so #re"ers+ ,ntil the ,s,"r,ct,ary gi'es sec,rity or is e/c,se$ "rom so $oing+ retain in his #ossession the #ro#erty in ,s,"r,ct as a$ministrator+ s, !ect to the o ligation to $eli'er to the ,s,"r,ct,ary the net #rocee$s thereo"+ a"ter $e$,cting the s,ms which may e agree$ ,#on or !,$icially allowe$ him "or s,ch a$ministration& H474I .ffects of failure to gi e security# when re%uired ?n rights of owners8 Where the obligation to gi e security or to file a bond is not excused or exempted# the failure of the usufructuary to comply with the same entitle the na9ed owner for his protection o to demand that immo ables be placed under administration or recei ership# o mo ables be sold# o instruments of credit be registered or deposited in a ban9 or public institution o capital or sums in cash and the proceeds of the sale of the mo able be in ested in safe securities' ?n rights of usufructuary8 (ntil he gi es the proper security# the usufructuary cannot enter upon the possession and enjoyment of the property' Ee may not collect any matured credits nor in est capital in usufruct without the consent of the owner or judicial authoriGation' /he failure to gi e security does not extinguish the right of usufruct' Eence# the usufructuary may alienate his right to the usufruct /his article only spea9s of security !it would seem that the failure of the usufructuary to ma9e an in entory# when not excused# does not ha e
the same effect as when security is not gi en'" Art& *52& I" the ,s,"r,ct,ary who has not gi'en sec,rity claims+ y 'irt,e o" a #romise ,n$er oath+ the $eli'ery o" the ",rnit,re necessary "or his ,se+ an$ that he an$ his "amily e allowe$ to li'e in a ho,se incl,$e$ in the ,s,"r,ct+ the co,rt may grant this #etition+ a"ter $,e consi$eration o" the "acts o" the case& The same r,le shall e o ser'e$ with res#ect to im#lements+ tools an$ other mo'a le #ro#erty necessary "or an in$,stry or 'ocation in which he is engage$& I" the owner $oes not wish that certain articles e sol$ eca,se o" their artistic worth or eca,se they ha'e a sentimental 'al,e+ he may $eman$ their $eli'ery to him ,#on his gi'ing sec,rity "or the #ayment o" the legal interest on their a##raise$ 'al,e& H47*I +worn underta9ing in lieu of security !caucion juratoria" /his article applies when the usufructuary who is under obligation to gi e security cannot afford to do so and no one is willing to gi e security for them Cor humanitarian considerations# the court may allow the usufructuary to enjoy the property upon ta9ing an oath to ta9e care of the property and retain it until the termination of the usufruct in lieu of gi ing the security /he usufructuary must first as9 the na9ed owner to grant him the rights mentioned# and should the latter refuse# he may resort to the courts Articles with artistic or sentimental alue may not be sold' /he owner may demand their deli ery to him if he gi es security to the usufructuary for the payment of the legal interest on their appraised alue'
Art& *55& A"ter the sec,rity has een gi'en y the ,s,"r,ct,ary+ he shall ha'e a right to all the #rocee$s an$ ene"its "rom the $ay on which+ in accor$ance with the title constit,ting the ,s,"r,ct+ he sho,l$ ha'e commence$ to recei'e them& H470I $etroacti e effect of gi ing security /his article applies where the usufructuary who is re%uired to gi e security gi es the security after the commencement of the usufruct Cailure to gi e the needed security may depri e the usufructuary of the right to enjoy the possession of the property in usufruct
65
PROPERTY NOTES
Eowe er# once the security is gi e# he is entitled to all the proceeds and benefits of the usufruct accruing from the day on which he should ha e commenced to recei e them# from the day the usufruct commenced according to its title'
Sho,l$ the ,s,"r,ct e on sterile animals+ it shall e consi$ere$+ with res#ect to its e""ects+ as tho,gh constit,te$ on ",ngi le things& H477aI (sufruct on a floc9 or herd of li estoc9 /he usufructuary has the duty to ma9e replacement although the death of the animals is due to natural causes' 6ut the replacement is to be made only from the young produced so that if there are no young or the number of the young is less than that of the animals that died# the usufructuary has no duty to replace or to fill up the difference' =o duty to replace pro ided the usufructuary is without fault !*nd and -rd paragraphs"' . en if the partial loss is due to the fault of the usufructuary# the usufruct continues with the remainder' 6ad use does not extinguish the usufruct !Art H;-"# but the owner may bring the necessary action for the protection of his rights' 4f the animals are sterile# and they cannot be replaced by the young thereof# the usufruct shall be treated as constituted on fungible things' 4n such case Art <I@ applies' Art& *7)& The ,s,"r,ct,ary is o lige$ to ma-e the or$inary re#airs nee$e$ y the thing gi'en in ,s,"r,ct& =y or$inary re#airs are ,n$erstoo$ s,ch as are re6,ire$ y the wear an$ tear $,e to the nat,ral ,se o" the thing an$ are in$is#ensa le "or its #reser'ation& Sho,l$ the ,s,"r,ct,ary "ail to ma-e them a"ter $eman$ y the owner+ the latter may ma-e them at the e/#ense o" the ,s,"r,ct,ary& H*99I ?bligation to ma9e ordinary repairs /he usufructuary is bound to ma9e the repairs referred to without the necessity of demand from the owner o /he owner may ma9e them at the expense of the usufructuary# only should the latter fail to ma9e them after demand has been made upon him' o /he defects re%uiring ordinary repairs must ha e occurred during the usufruct# whether with or without the fault of the usufructuary' /he usufructuary is not liable for deterioration resulting from wear and tear not due to his fraud or negligence# unless the deterioration could ha e been pre ented or arrested by ordinary repairs and he failed to ma9e them without alid reason'
Art& *57& The ,s,"r,ct,ary shall ta-e care o" the things gi'en in ,s,"r,ct as a goo$ "ather o" a "amily& H472I ?bligation to ta9e care of the property 4ncludes the ma9ing of ordinary repairs needed by thing gi en in usufruct )are re%uired is that of a good father of a family !ordinary diligence" 6ut diligence should not be less than that re%uired by the circumstances (sufructuary is liable for damages suffered by the property due to his fault and negligence Art& *79& A ,s,"r,ct,ary who alienates or leases his right o" ,s,"r,ct shall answer "or any $amage which the things in ,s,"r,ct may s,""er thro,gh the "a,lt or negligence o" the #erson who s, stit,tes him& H475I :iability for fault or negligence of substitute /he usufructuary may alienate or lease his right Eowe er# he shall be liable to the owner for any damage which the property in usufruct may suffer through the fault or negligence !also fraud or willful acts" of the substitute without prejudice to his right of action against the latter Art& *71& I" the ,s,"r,ct e constit,te$ on a "loc- or her$ o" li'estoc-+ the ,s,"r,ct,ary shall e o lige$ to re#lace with the yo,ng thereo" the animals that $ie each year "rom nat,ral ca,ses+ or are lost $,e to the ra#acity o" easts o" #rey& I" the animals on which the ,s,"r,ct is constit,te$ sho,l$ all #erish+ witho,t the "a,lt o" the ,s,"r,ct,ary+ on acco,nt o" some contagio,s $isease or any other ,ncommon e'ent+ the ,s,"r,ct,ary shall ",l"ill his o ligation y $eli'ering to the owner the remains which may ha'e een sa'e$ "rom the mis"ort,ne& Sho,l$ the her$ or "loc- #erish in #art+ also y acci$ent an$ witho,t the "a,lt o" the ,s,"r,ct,ary+ the ,s,"r,ct shall contin,e on the #art sa'e$&
66
PROPERTY NOTES
Art& *7.& E/traor$inary re#airs shall e at the e/#ense o" the owner& The ,s,"r,ct,ary is o lige$ to noti"y the owner when the nee$ "or s,ch re#airs is ,rgent& H*91I Art& *74& I" the owner sho,l$ ma-e the e/traor$inary re#airs+ he shall ha'e a right to $eman$ o" the ,s,"r,ct,ary the legal interest on the amo,nt e/#en$e$ "or the time that the ,s,"r,ct lasts& Sho,l$ he not ma-e them when they are in$is#ensa le "or the #reser'ation o" the thing+ the ,s,"r,ct,ary may ma-e them( ,t he shall ha'e a right to $eman$ o" the owner+ at the termination o" the ,s,"r,ct+ the increase in 'al,e which the immo'a le may ha'e ac6,ire$ y reason o" the re#airs& H*9)aI Duty of owner to pay for extraordinary repairs :aw does not impose an obligation on the na9ed owner or the usufructuary to ma9e extraordinary repairs on the property in usufruct' 4t is optional for them to ma9e sure repairs or not' 3ayment for extraordinary repairs8 o /hose re%uired by the wear and tear due to the natural use of the thing but not indispensable for its preser ation ?$ those re%uired by the deterioration of or damage the thing caused by the exceptional circumstances but not indispensable for its preser ation8 /he owner cannot be compelled to ma9e them' 4f he should ma9e them# they shall be at his expense since they are made on his property but he shall a right to demand of the usufructuary who is benefited by the repairs# legal interest on the amount expended during the duration of the usufruct' /he usufructuary may ma9e them but he is not entitled to indemnity because they are not needed for the preser ation of the thing' o /hose re%uired by the deterioration of or damage to the thing caused by exceptional circumstances and are indispensable for its preser ation8 4t is also optional upon the owner or the usufructuary to ma9e the repairs or not' 4f the owner should ma9e the repairs# they shall be at his expense' 4f made by the usufructuary# he shall ha e the right to demand of the owner the payment of the increase in alue of the immo able by reason of the repairs at the termination of the usufruct pro ided the following are
present8 Ee notified the owner of the urgency of the repairs /he owner failed to ma9e the repairs /he repair is necessary for the preser ation of the property /he usufructuary has the right of retention e en after the termination of the usufruct until he is reimbursed for the increase in alue of the property caused by extraordinary repairs for preser ation !Art H&*" o 4ncrease in alue is the difference between the alue of the property before the repairs were made and the alue after the repairs were completed
Art& *7*& The owner may constr,ct any wor-s an$ ma-e any im#ro'ements o" which the immo'a le in ,s,"r,ct is s,sce#ti le+ or ma-e new #lantings thereon i" it e r,ral+ #ro'i$e$ that s,ch acts $o not ca,se a $imin,tion in the 'al,e o" the ,s,"r,ct or #re!,$ice the right o" the ,s,"r,ct,ary& H*9.I )onstruction# impro ements and plantings by owner /he owner has the right to do the wor9s mentioned pro ided the alue of the usufruct is not prejudiced Any increase in the alue of the usufruct due to the impro ements will inure to the benefit of the usufructuary for he is entitled to the use and fruits of the property /he owner has no right to demand legal interest on his expenses because they were oluntarily incurred by him /he owner may e en alienate his property or ma9e changes thereon as long as he doesnt impair the right of the usufructuary' )ase doctrine 4n a case where the usufruct was o er the land# and the owner built buildings on the land# and the usufructuary was demanding the rents of the buildings as part of the usufruct# the )ourt held that the usufructuary was not entitled to the rents of the building' /he usufructuarys argument that Article <I& was applicable !right to enjoy any increase by accession" was wrong because such accession is limited to buildings erected on the land of another and does not contemplate a situation where the owner himself erected the buildings' !Gaboya )ui" Eowe er# the usufructuary was entitled to reasonable rental for the
67
PROPERTY NOTES
portion of the land occupied by the building because the construction of the building had reduced the area of the land and to that extent diminished the alue of the usufruct' Eowe er# li9e said abo e# since the usufruct was reser ed o er the land alone# the usufructuary was not entitled to the rents of the building itslef' Art& *70& The #ayment o" ann,al charges an$ ta/es an$ o" those consi$ere$ as a lien on the "r,its+ shall e at the e/#ense o" the ,s,"r,ct,ary "or all the time that the ,s,"r,ct lasts& H*94I Art& *72& The ta/es which+ $,ring the ,s,"r,ct+ may e im#ose$ $irectly on the ca#ital+ shall e at the e/#ense o" the owner& I" the latter has #ai$ them+ the ,s,"r,ct,ary shall #ay him the #ro#er interest on the s,ms which may ha'e een #ai$ in that character( an$+ i" the sai$ s,ms ha'e een a$'ance$ y the ,s,"r,ct,ary+ he shall reco'er the amo,nt thereo" at the termination o" the ,s,"r,ct& H*9*I :iability for charges and taxes (sufructuary must pay the annual charges and taxes which are imposed# and# therefore# are a lien upon the fruits during the term of the usufruct' Are real property taxes imposed on the fruits or on the capital? ?n the capital' /axies le ied on the capital must be paid by the na9ed owner but he has right to demand from the usufructuary the proper interest on the sums paid' 4f the taxes were ad anced oluntarily by the usufructuary he is entitled to be reimbursed therefor at the termination of the usufruct with the right of retention until paid' Art& *75& I" the ,s,"r,ct e constit,te$ on the whole o" a #atrimony+ an$ i" at the time o" its constit,tion the owner has $e ts+ the #ro'isions o" Articles 2*5 an$ 2*7 relating to $onations shall e a##lie$+ oth with res#ect to the maintenance o" the ,s,"r,ct an$ to the o ligation o" the ,s,"r,ct,ary to #ay s,ch $e ts& The same r,le shall e a##lie$ in case the owner is o lige$+ at the time the ,s,"r,ct is constit,te$+ to ma-e #erio$ical #ayments+ e'en i" there sho,l$ e no -nown ca#ital& H*90I Where usufruct con ers entire patrimony Art <KD applies to a
uni ersal usufruct or one which co ers the entire patrimony of the owner# and o at the time of its constitution# by donation or any other acts inter i os# he has debts# whether secured or unsecured# or is bound to ma9e periodical payments e en if# in the latter case# there should be no 9nown capital /he liability of the usufructuary for the debts of the na9ed owner is the same as that of the donee under I<D and I<K o when there is a stipulation for the payment by the usufructuary of the debts of the owner# the former is liable only for the debts contracted by the latter before the constitution of the usufruct o in the absence of stipulation# the usufructuary shall be responsible only when the usufruct was created in fraud of creditors o
Art& *77& The ,s,"r,ct,ary may claim any mat,re$ cre$its which "orm a #art o" the ,s,"r,ct i" he has gi'en or gi'es the #ro#er sec,rity& I" he has een e/c,se$ "rom gi'ing sec,rity or has een a le to gi'e it+ or i" that gi'en is not s,""icient+ he shall nee$ the a,thori4ation o" the owner+ or o" the co,rt in $e"a,lt thereo"+ to collect s,ch cre$its& The ,s,"r,ct,ary who has gi'en sec,rity may ,se the ca#ital he has collecte$ in any manner he may $eem #ro#er& The ,s,"r,ct,ary who has not gi'en sec,rity shall in'est the sai$ ca#ital at interest ,#on agreement with the owner( in $e"a,lt o" s,ch agreement+ with !,$icial a,thori4ation( an$+ in e'ery case+ with sec,rity s,""icient to #reser'e the integrity o" the ca#ital in ,s,"r,ct& H*92I (sufruct of matured credits if the usufructuary has gi en sufficient security# he may claim matured credits forming part of the usufruct# collect them# and use and in est# with or without interest# the capital he has collected# in any manner he may deem proper if he o has =?/ gi en security# or o that gi en is not sufficient# or o he has been excused from gi ing security# he may collect the credits and in est the capital which must be at interest# with the consent of the na9ed owner or appro al of the court' /he credits which constitute the capital belong to the
68
PROPERTY NOTES
na9ed owner but the usufructuary has the right to use and in est them# and to recei e the interest therefrom' 4n e ery case# the in estment of the capital must be with sufficient security to preser e its integrity
preser ing its form and substance# unless the title constituting it or the law otherwise pro ides' !=EA )A" Art& 09)& The e/#enses+ costs an$ lia ilities in s,its ro,ght with regar$ to the ,s,"r,ct shall e orne y the ,s,"r,ct,ary& H*1)I ?bligation to pay for judicial expenses and cost +ince they are in connection with litigation o er possession affecting the rights of the usufructuary# it is just that they are borne by him' 4f the litigation in ol es only the na9ed ownership# the owner should assume them' :;APTER 4 EETIN>CIS;MENT O3 CSC3RC:T Art& 09.& Cs,"r,ct is e/ting,ishe$% H1I =y the $eath o" the ,s,"r,ct,ary+ ,nless a contrary intention clearly a##ears( H)I =y the e/#iration o" the #erio$ "or which it was constit,te$+ or y the ",l"illment o" any resol,tory con$ition #ro'i$e$ in the title creating the ,s,"r,ct( H.I =y merger o" the ,s,"r,ct an$ ownershi# in the same #erson( H4I =y ren,nciation o" the ,s,"r,ct,ary( H*I =y the total loss o" the thing in ,s,"r,ct( H0I =y the termination o" the right o" the #erson constit,ting the ,s,"r,ct( H2I =y #rescri#tion& H*1.aI Eow is a usufruct extinguished? &' Death of the usufructuary !unless contrary intention clearly appears" *' .xpiration of period or fulfillment of condition -' 6y merger of the usufruct and ownership in the same person @' 6y renunciation of the usufructuary <' 6y the total loss of the thing H' /ermination of right of owner !refers to the right of the person constituting the usufruct# not to a condition imposed upon the usufruct itself" I' 6y prescription !ac%uisiti e prescription by the use of a third person# not the use by the usufructuary"
Art& 099& The ,s,"r,ct,ary o" a mortgage$ immo'a le shall not e o lige$ to #ay the $e t "or the sec,rity o" which the mortgage was constit,te$& Sho,l$ the immo'a le e attache$ or sol$ !,$icially "or the #ayment o" the $e t+ the owner shall e lia le to the ,s,"r,ct,ary "or whate'er the latter may lose y reason thereo"& H*97I (sufruct of mortgaged immo ables /he usufruct is particular# constituted by will or by acts inter i os# whether by onerous or gratuitous title 4f the usufruct is uni ersal# the liability of the usufructuary to pay for the mortgage is go erned by Art <KD' /he owner may alidly mortgage the property in fa or of a third person' /he debt must be paid by the owner' /he usufructuary may mortgage his right of usufruct which is a real right Art& 091& The ,s,"r,ct,ary shall e o lige$ to noti"y the owner o" any act o" a thir$ #erson+ o" which he may ha'e -nowle$ge+ that may e #re!,$icial to the rights o" ownershi#+ an$ he shall e lia le sho,l$ he not $o so+ "or $amages+ as i" they ha$ een ca,se$ thro,gh his own "a,lt& H*11I ?bligation to notify owner of prejudicial acts by third persons Art H;& spea9s of any act which may be prejudicial to the Brights of ownership# not merely of the Bna9ed ownership A usufructuary has the duty to protect the owners interest Eowe er# where the act affects possession# although this is in the usufructuary# he should notify the owner because the latter has an interest in defending it' /he usufructuary is also obliged to notify the owner before ma9ing an in entory of the property and of the need of urgent repairs' )ase doctrine A usufructuary has the duty to protect the owners interests 2 a usufruct gi es a right to enjoy the property of another with the obligation of
69
PROPERTY NOTES
D'
?ther causes !annulment or rescission of the contract"
)ase doctrines Although the owner expressly authoriGed the usufructuaries to occupy a portion of her property 0as long as they li9e1# the usufruct may be considered terminated by other modes or instances of extinguishment# such as the fulfillment of any resolutory condition pro ided in the document creating the usufruct' !Moralidad +pouses 3erneG" /he -;7year limitation on usufruct under the ?ld +panish )i il )ode does not apply to trusts' !3alad Go ernor of ,ueGon 3ro ince" Art& 094& I" the thing gi'en in ,s,"r,ct sho,l$ e lost only in #art+ the right shall contin,e on the remaining #art& H*14I /o extinguish a usufruct# the loss must be total# except as pro ided in Art H;I to H;K 4f the loss in only partial# the usufruct continues with the remaining part' 6ut if the partial loss may be so important as to be considered total loss# the courts shall determine'
Art& 092& I" the ,s,"r,ct is constit,te$ on immo'a le #ro#erty o" which a ,il$ing "orms #art+ an$ the latter sho,l$ e $estroye$ in any manner whatsoe'er+ the ,s,"r,ct,ary shall ha'e a right to ma-e ,se o" the lan$ an$ the materials& The same r,le shall e a##lie$ i" the ,s,"r,ct is constit,te$ on a ,il$ing only an$ the same sho,l$ e $estroye$& =,t in s,ch a case+ i" the owner sho,l$ wish to constr,ct another ,il$ing+ he shall ha'e a right to occ,#y the lan$ an$ to ma-e ,se o" the materials+ eing o lige$ to #ay to the ,s,"r,ct,ary+ $,ring the contin,ance o" the ,s,"r,ct+ the interest ,#on the s,m e6,i'alent to the 'al,e o" the lan$ an$ o" the materials& H*12I Where usufruct of land and building# and building destroyed /he destruction of the building terminates the usufruct on the building but no the usufruct on the land /he usufructuary is still entitled to use the land and in place of the building# the materials thereof' !3artial loss" /he usufructuary can insist on the use of the land and the materials for the remainder of the term of the usufruct as the right is granted him by law as against the wish of the owner to construct another building' While the usufruct on a building does not expressly include the land on which it is constructed# the land should be deemed included# for while there can be land without a building# there can be no building without land' /he na9ed owner shall pay legal interest on insurance recei ed if it has not been used in the construction of another building during the whole period of the usufruct' 6ut he may# if he desires# relie e himself of this encumbrance by turning o er the money to the usufructuary so that he may use it subject to the obligation to return the amount to the na9ed owner after his death as pro ided in article H&*' Where usufruct on building only and it is destroyed +ame rule applies although the usufruct does not co er the land for the simple reason that the use of the building necessarily in ol es the use of the land 6ut# the owner is gi en the preferential right to construct another building# occupy the land and ma9e use of the material e en against the objection of the usufructuary /he only right of the usufructuary is to recei e during the continuance of the usufruct# legal interest on the alue of the land of the materials'
Art& 09*& Cs,"r,ct cannot e constit,te$ in "a'or o" a town+ cor#oration+ or association "or more than "i"ty years& I" it has een constit,te$+ an$ e"ore the e/#iration o" s,ch #erio$ the town is a an$one$+ or the cor#oration or association is $issol'e$+ the ,s,"r,ct shall e e/ting,ishe$ y reason thereo"& H*1*aI /he ordinary life of a corporation is <; years' (nli9e a natural person# a corporation or association may be extended indefinitely' 3ublic policy frowns upon perpetual usufruct' /he fifty7year limitation does not apply to trusts'
Art& 090& A ,s,"r,ct grante$ "or the time that may ela#se e"ore a thir$ #erson attains a certain age+ shall s, sist "or the n,m er o" years s#eci"ie$+ e'en i" the thir$ #erson sho,l$ $ie e"ore the #erio$ e/#ires+ ,nless s,ch ,s,"r,ct has een e/#ressly grante$ only in consi$eration o" the e/istence o" s,ch #erson& H*10I .xception here is when the usufruct has been expressly granted only in consideration of the existence of the third person
70
PROPERTY NOTES
)ase doctrines A life usufruct constituted on the rentals of the %incas situadas located at a certain place includes the rentals both on the building and the land on which it is erected# because the building can not exist without the land' Eence# the usufruct is not extinguished by the destruction of the building# for under the law usufruct is extinguished only by the total loss of the thing subject of the encumbrance' !Fda de Albar )arandang" Art& 095& I" the ,s,"r,ct,ary shares with the owner the ins,rance o" the tenement gi'en in ,s,"r,ct+ the "ormer shall+ in case o" loss+ contin,e in the en!oyment o" the new ,il$ing+ sho,l$ one e constr,cte$+ or shall recei'e the interest on the ins,rance in$emnity i" the owner $oes not wish to re ,il$& Sho,l$ the ,s,"r,ct,ary ha'e re",se$ to contri ,te to the ins,rance+ the owner ins,ring the tenement alone+ the latter shall recei'e the ",ll amo,nt o" the ins,rance in$emnity in case o" loss+ sa'ing always the right grante$ to the ,s,"r,ct,ary in the #rece$ing article& H*15aI 3ayment of cost of insurance =either the owners nor the usufructuary is under obligation to insure the property in usufruct' +hould they do so# and 2 o /he usufructuary shares with the owner in insuring the property# the usufructuary shall continue to enjoy the new building to be constructed# or if the owner does not wish to rebuild# the usufructuary shall recei e the legal interest on the insurance proceeds which will go to the owner' o /he usufructuary refuses to contribute to the insurance# and so the owner pays it alone# the owner gets the full insurance indemnity in case of loss# the right of the usufructuary being limited to the legal interest on the alue of the land and of the materials' /he article is silent where the usufructuary alone pays the insurance# or where both share in the payment thereof# as to the proportion of their contribution to the insurance' Art& 097& Sho,l$ the thing in ,s,"r,ct e e/#ro#riate$ "or #, lic ,se+ the owner shall e o lige$ either to re#lace it with another thing o" the same 'al,e an$ o" similar con$itions+ or to #ay the ,s,"r,ct,ary the legal interest on the amo,nt o" the in$emnity "or the whole #erio$ o" the ,s,"r,ct& I" the owner chooses the latter alternati'e+ he shall gi'e
sec,rity "or the #ayment o" the interest& H*17I Art& 019& A ,s,"r,ct is not e/ting,ishe$ y a$ ,se o" the thing in ,s,"r,ct( ,t i" the a ,se sho,l$ ca,se consi$era le in!,ry to the owner+ the latter may $eman$ that the thing e $eli'ere$ to him+ in$ing himsel" to #ay ann,ally to the ,s,"r,ct,ary the net #rocee$s o" the same+ a"ter $e$,cting the e/#enses an$ the com#ensation which may e allowe$ him "or its a$ministration& H*)9I .xpropriation of thing in usufruct /he expropriation of the thing does not extinguish the usufruct' Article H;K allows the substitution of the thing by an e%ui alent thing' 4f the thing in usufruct is expropriated for public use# the na9ed owner is gi en the option8 o to replace it with another thing of the same alue and of similar conditions# or o to pay to the usufructuary the legal interest on the amount of indemnity for the whole period of the usufruct' 4n the latter case# the owner shall gi e security for the payment of the interest' .ffect of bad use 6ad use of the thing in usufruct does not extinguish the right of the usufructuary whether there is security or not' /he usufruct continues' 6ut if the bad use causes considerable injury to the owner# not to the thing itself# the owner is gi en the right to demand that the thing be deli ered to him# binding himself to pay annually to the usufructuary the net proceeds of the same# after deducting the expenses and the compensation which may be allowed him for its administration' /his is true where the usufructuary has not gi en any security or the security gi en is insufficient especially if the owner has no property' /he second part of the pro ision can hardly apply where there is sufficient security for 0no considerable injury1 could possible be caused to the owner' Art& 011& A ,s,"r,ct constit,te$ in "a'or o" se'eral #ersons li'ing at the time o" its constit,tion shall not e e/ting,ishe$ ,ntil $eath o" the last s,r'i'or& H*)1I (sufruct in fa or of se eral persons
71
PROPERTY NOTES
(sufruct is extinguished by the death of the usufructuary unless a contrary intention appears' /he usufruct is not extinguished until the death of the last sur i or' As the usufruct continues# the rights of any usufructuary who dies shall accrue to the sur i ing usufructuaries' o /he only exception is when the title constituting the usufruct pro ides otherwise as where the usufruct is constituted in a list and will and testament and the testator ma9es a contrary pro ision'
Art& 01)& C#on the termination o" the ,s,"r,ct+ the thing in ,s,"r,ct shall e $eli'ere$ to the owner+ witho,t #re!,$ice to the right o" retention #ertaining to the ,s,"r,ct,ary or his heirs "or ta/es an$ e/traor$inary e/#enses which sho,l$ e reim ,rse$& A"ter the $eli'ery has een ma$e+ the sec,rity or mortgage shall e cancelle$& H*))aI ?bligation of usufructuary to return the thing upon termination of the usufruct (pon the termination of the usufruct# it is the duty of the usufructuary to return the property to the na9ed owner' /he usufructuary is expressly granted the right of retention until he is reimbursed for the amount of taxes le ied on the capital and for the increase in alue caused by extraordinary repairs' Ee has no right to reimbursement for useful impro ements'
.asement or ser itude has been defined as a 0real right constituted on anothers property# corporeal and immo able# by irtue of which the owner of the same has to abstain from doing or to allow somebody else to do something on his property for the benefit of another thing or person'1 /he definition in this article is not complete# being limited to real easement' 4n iew of the next article which refers to personal easement# the term may be defined as an encumbrance imposed upon an immo able for the benefit of another immo able belonging to a different owner or for the benefit of a community or one or more persons to whom the encumbered estate does not belong by irtue of which the owner is obliged to abstain from doing or to permit a certain thing to be done on his estate !whew'"
.asement and ser itude distinguished &' 4t is said that easement refers to the right enjoyed by one# and ser itude# the burden imposed upon another' *' /he two terms are used synonymously in the )i il )ode although it is more partial to easement' )haracteristics of easement &' 4t is a real right but will affect third persons only when duly registered5 *' 4t is enjoyed o er another immo able# ne er on ones own property5 -' 4t in ol es two neighboring estates# the dominant to which a right belongs and the ser ient upon which an obligation rests5 @' 4t is inseparable from the estate to which it is attached and# therefore# cannot be alienated independently of the estate !Art H&I" <' 4t is indi isible for it is not affected by the di ision of the estate between two or more persons !Art H&D" H' 4t is a right limited by the needs of the dominant owner or estate# without possession5 I' 4t cannot consist in the doing of an act unless the act is accessory in relation to a real easement5 and D' 4t is a limitation on the ser ient owners rights of ownership for the benefit of the dominant owner5 and therefore# it is not presumed' .asement gi es the holder an incorporeal right on the land but grants no title thereto' /herefore# an ac9nowledgment of the easement is an admission that the property belongs to another'
TITLE VII A EASEMENTS OR SERVITC8ES :;APTER ONE EASEMENTS IN >ENERAL +.)/4?= ?=. 2 D4CC.$.=/ N4=D+ ?C .A+.M.=/+ Art& 01.& An easement or ser'it,$e is an enc,m rance im#ose$ ,#on an immo'a le "or the ene"it o" another immo'a le elonging to a $i""erent owner& The immo'a le in "a'or o" which the easement is esta lishe$ is calle$ the $ominant estate( that which is s, !ect thereto+ the ser'ient estate& H*.9I .asement or ser itude defined
72
PROPERTY NOTES
.asement established only on immo able .asements cannot be imposed on personal property but only on immo able !which must be understood in its common and not in its legal sense"' What the law treats of are not immo ables as defined by the )i il )ode but only those which are so by their nature !are really incapable of being mo ed" such as lands# roads# buildings# and constructions adhering to the soil' =ature of benefit to dominant estate .asement can exist only when the ser ient and dominant estates belong to different owners' /here can be no easement without a burden on an estate for the benefit of another immo able belonging to a different owner or of a person or group of persons' /he dominant estate cannot be the ser ient estate at the same time' 4t is not essential that the benefit be ery great# it being sufficient that there is a determinate use or utility in fa or of a dominant estate o er an estate belonging to another' /he important thing is that it exists and can be exercised' ?n the other hand# the benefit should not be so great as to be inconsistent with the general right of ownership of a person# amounting to a ta9ing of his property' .asement $eal right# whether registered or not# and whether it is real or personal 4mposed only on real property :imited right to the use of real property of another but without the right of possession !0without any exclusi e possession or occupation1" .asement 4mposed only on real property :imited to a particular or specific use of the ser ient estate =on7possessory right o er an :ease $eal right only when it is registered# or when its subject is real property and the duration exceeds one year May in ol e real or personal property :imited right to both the possession and use of anothers property !0exclusi e possession1" (sufruct May in ol e real or personal property 4ncludes all the uses and fruits of the property $ight of possession in an immo able
immo able or mo able =ot extinguished by the death of the As a rule# extinguished by the death dominant owner of the usufructuary 6oth usufruct and easement are real rights# whether registered or not# and are transmissible' )ase doctrines /he power of eminent omain encompasses not only the ta9ing of title to and possession of the expropriated property but li9ewise co ers e en the imposition of a mere burden upon the owner of the condemned property' Where the nature of the easement practically depri es the owners of the propertys normal beneficial use# notwithstanding the fact that the expropriator only occupies the sub7terrain portion# it is liable to pay not merely an easement fee but rather the full compensation for land' !=3) 4brahim" Art& 014& Ser'it,$es may also e esta lishe$ "or the ene"it o" a comm,nity+ or o" one or more #ersons to whom the enc,m ere$ estate $oes not elong& H*.1I )lassifications of easement &' As to recipient of benefit a' $eal 2 when the easement is in fa or of another immo able !Art H&-"5 or b' 3ersonal 2 when it is in fa or of a community or of one more persons !Art H&@"' /hus# it maybe public or pri ate' *' As to its source a' Foluntary 2 when the easement is established by the will or agreement of the parties or by a testator !Art H&K"5 b' :egal 2 when it is imposed by law either for public use or in the interest of pri ate persons !Art H-I7HDI"5 or c' Mixed 2 when it is created partly by will or agreement and partly by law' -' As to its exercise a' )ontinuous 2 see Article H&<5 or b' Discontinuous @' As to whether or not its existence is indicated a' Apparent5 or b' =on7apparent <' As to the duty of ser ient owner a' 3ositi e 2 see Article H&H5 or
73
PROPERTY NOTES
b'
negati e
in$ication o" their e/istence& H*.)I )ontinuous and discontinuous easements Cor an easement to be continuous# it is not necessary that the use be incessant5 it is sufficient that the use may be so' o .xamples are the right to support a beam on anothers wall which really exists continuously and the right of a%ueduct which may be used only on certain days depending on the need for water but which is continuous since its use does not depend upon the inter ention of man' An example of discontinuous ser itude is the right of way which is used at inter als because it is physically impossible that man shall continually poass o er the way' /he easement itself# whether continuous or discontinuous# exists continuously whether it is being used or not# but its exercise may be continuous or discontinuous# or there may be no exercise at all' /he distinction lies in the fact that in continuous easements# the exercise or enjoyment can be had without the inter ention of man while in discontinuous easements# such exercise or enjoyment re%uires the inter ention of man' 4n both easements# the benefit and burden exists from the moment the easements are created' )ase doctrine .asements are either continuous or discontinuous according to the manner they are exercisd# not according to the presence of apparent signs or physical indications of the existence of such easements' /hus# an easement is continuous if its use is# or may be# incessant without the inter ention of any act of man# li9e the easement of drainage5 and it is discontinuous if it is used at inter als and depends on the act of man# li9e the easement of right of way' !6ogo7Medellin )A" Apparent and non7apparent easements Cor an apparent easement# it is not necessary that its sign be seen5 it is sufficient if it may be seen or 9nown on inspection' o /he sign or signs may be encountered in the dominant or ser ient estate# according to the circumstances' An example of a non7apparent easement is a right of way when there is no indication of its existence' A right of way is apparent when there is a isible road or path to show its exercise'
$eal and personal ser itudes A ser itude may be established for the benefit8 &' of a particular estate and conse%uently# for its owner5 !real or predial" *' of a person or group of persons without being the owner or owners of a dominant estate' !personal" (nli9e a real easement# personal easement does not re%uire two immo ables' An example of a personal easement is a right of way granted to certain persons and their family# friends# ser ants# and jeeps' /he ser itude is for the benefit alone of the persons enumerated and not a predial ser itude that inures to the benefit of whoe er owns the dominant estate' Eence# the owner of the ser ient estate may refuse to extend the said easement to the successors7in7interest of the persons for whose benefit the ser itude exists' !Aabonete Monte erde" 3ublic and pri ate easements 3ersonal easements may be8 &' 3ublic# if it is ested in the public at large or in some class of indeterminate indi iduals !li9e the right of the public to a highway o er a land of pri ate ownership" *' 3ri ate# if it is ested in a determinate indi idual or certain persons !li9e a right of way ested in the owner of one parcel of land o er an adjoining parcel of land" )ase doctrines When a person is allowed to construct his house on the land of another to facilitate his gathering of fruits# this would be in the nature of a personal easement under Article H&@' !Alcantara $eta" Art& 01*& Easements may e contin,o,s or $iscontin,o,s+ a##arent or non1a##arent& :ontin,o,s easements are those the ,se o" which is or may e incessant+ witho,t the inter'ention o" any act o" man& 8iscontin,o,s easements are those which are ,se$ at inter'als an$ $e#en$ ,#on the acts o" man& A##arent easements are those which are ma$e -nown an$ are contin,ally -e#t in 'iew y e/ternal signs that re'eal the ,se an$ en!oyment o" the same& Nona##arent easements are those which show no e/ternal
74
PROPERTY NOTES
4n general# negati e easements are non7apparent'
Art& 010& Easements are also #ositi'e or negati'e& A #ositi'e easement is one which im#oses ,#on the owner o" the ser'ient estate the o ligation o" allowing something to e $one or o" $oing it himsel"+ an$ a negati'e easement+ that which #rohi its the owner o" the ser'ient estate "rom $oing something which he co,l$ law",lly $o i" the easement $i$ not e/ist& H*..I 3ositi e and negati e easements A positi e easement is one which imposes upon the owner of the ser ient estate the obligation of allowing something to be done or of doing it himself' o .xample8 the easement of which the right of way which imposes upon the owner of the ser ient estate the duty to allow the use of said way' A negati e easement is that which prohibits the owner of the ser ient estate from doing something which he could lawfully do if the easement did not exist' o .xample8 easement of light and iew whereby the owner of the ser ient estate is prohibited from obstructing the passage of light' 4t may also be positi e depending upon the manner by which it is exercised' When the opening or window is made on anothers wall !wall of ser ient estate" or on a party wall# the easement ac%uired is positi e because the owner of the wall allows the ser itude to burden his wall' 4f the window is through ones own wall !wall of the dominant estate" which does not extend o er anothers property !ser ient estate"# the easement is negati e' )ase doctrines $estricti e co enants are not# strictly spea9ing synonymous with easements# but a case of ser itudes or burdens# sometimes characteriGed to be negati e easements or reciprocal negati e easements' =egati e easement is the most common easement created by co enant or agreement whose effect is to preclude the owner of the land from doing an act# which# if no easement existed# he would be entitled to do' !Cajardo Creedom to 6uild" )ourts generally iew restricti e co enants with disfa or# but still sustain them where the co enants are reasonable# not contrary to law# or not in
restraint of trade' 4f the co enant aims to promote aesthetics# health# and pri acy or to pre ent o ercrowding# then the co enant must be sustained' A suit for e%uitable enforcement of a restricti e co enant can only be made by one for whose benefit it is intended' 4t is thus not normally enforceable by one who has no right nor interest in the land for the benefit of which the restriction has been imposed' /hus# de eloper of a subdi ision can enforce restrictions# e en as against remote grantees of lots# only if he retains part of the land' !Cajardo Creedom"
Art& 012& Easements are inse#ara le "rom the estate to which they acti'ely or #assi'ely elong& H*.4I ,uality of inherence or inseparability +er itudes are inseparable from the estate to which they acti ely or passi ely belong# being accessory things whose ery existence depends upon the principal thing !immo able"' Eence# they are intransmissible in the sense that they cannot be alienated or mortgaged independently of the estate' An easement cannot be the object of usufruct because it has no existence independent of the immo able to which it attaches' 4f the dominant estate is alienated# such alienation carries with it also the easements established in its fa or e en if they are not annotated as an encumbrance on the certificate of title' An easement is extinguished or cut7off# howe er# by the registration of the ser ient estate under the /orrens system without the easement being annotated on the corresponding certificate of title' A registered owner or subse%uent purchaser of registered land holds his certificate of title free from all encumbrances except only those noted in said certificate and the statutory liens' o 6ut if the existence of an easement was 9nown to the transferee or grantee of the ser ient estate# such 9nowledge is e%ui alent to registration' )ase doctrines A endee on real property on which a ser itude or an easement of right of way exists does not ac%uire the right to close that ser itude to pre ent the neighboring estates from using it' !+olid Manila 6io Eong"
75
PROPERTY NOTES
Art& 015& Easements are in$i'isi le& I" the ser'ient estate is $i'i$e$ etween two or more #ersons+ the easement is not mo$i"ie$+ an$ each o" them m,st ear it on the #art which corres#on$s to him& I" it is the $ominant estate that is $i'i$e$ etween two or more #ersons+ each o" them may ,se the easement in its entirety+ witho,t changing the #lace o" its ,se+ or ma-ing it more ,r$ensome in any other way& H*.*I ,uality of indi isibility .asement as a right is indi isible' Accordingly# the partition between two or more persons of either the ser ient or dominant estate does not affect the existence of the ser itude which continues in its entirety' 4f the ser ient estate is di ided# each new owner must bear the easement but only with respect to the part corresponding to him' 4f the dominant estate is di ided# each owner can exercise the whole easement o er each of the ser ient estates subject to the condition that the place of easement shall not be changed and the easement shall not be more burdensome' o A person entitled to a right of way may do whate er is necessary to ma9e it con enient for his use but he cannot de iate therefrom' /he easement is not considered made more burdensome by the mere increase in the owners of the dominant estates' Art& 017& Easements are esta lishe$ either y law or y the will o" the owners& The "ormer are calle$ legal an$ the latter 'ol,ntary easements& H*.0I :egal and oluntary easements /his article gi es the two 9inds of easements according to source' /he courts cannot impose or constitute any ser itude where none existed' /hey can only declare its existence if in reality it exists by law or by the will of the owners' /here are no judicial easements' Foluntary easements must be recorded in the $egistry of 3roperty in order not to prejudice third persons'
Art& 0)9& :ontin,o,s an$ a##arent easements are ac6,ire$ either y 'irt,e o" a title or y #rescri#tion o" ten years& H*.2aI Modes of ac%uiring easements &' 6y title' All easements' a' )ontinuous and apparent easements !Art H*;" b' )ontinuous and non7apparent easements !Art H**" c' Discontinuous easements# whether apparent or non7 apparent *' 6y prescription of ten years 2 only continuous and apparent easements -' 6y deed of recognition !Art H*-" @' 6y final judgment <' 6y apparent sign established by the owner of two adjoining estates !Art H*@" Ac%uisition by title or prescription ?nly continuous and apparent easements may be ac%uired either by irtue of a title or by prescription in &; years' 6y title# it refers to the juridical act which gi es birth to the easement# such as law# donation# contract and will of the testator' /his article fixes ten years as the period of prescription# regardless of good faith or bad faith of the possessor and whether or not he has just title' /he general rules on prescription do not apply# the only re%uirement being that there be ad erse possession of the easement for ten years' )ase doctrines 3rescription as a mode of ac%uisition re%uires the existence of the following8 *' )apacity to ac%uire by prescription -' /hing capable of ac%uisition by prescription @' 3ossession of the thing under certain conditions (nder claim of title !en concepto de dueno" 3ossession not merely tolerated by owner <' :apse of time pro ided by law !=ational 3ower )orp )ampos" Art& 0)1& In or$er to ac6,ire y #rescri#tion the easements re"erre$ to in the #rece$ing article+ the time o" #ossession shall e com#,te$
+.)/4?= /W? 7 M?D.+ ?C A),(4$4=G .A+.M.=/+
76
PROPERTY NOTES
th,s% in #ositi'e easements+ "rom the $ay on which the owner o" the $ominant estate+ or the #erson who may ha'e ma$e ,se o" the easement+ commence$ to e/ercise it ,#on the ser'ient estate( an$ in negati'e easements+ "rom the $ay on which the owner o" the $ominant estate "or a$e+ y an instr,ment ac-nowle$ge$ e"ore a notary #, lic+ the owner o" the ser'ient estate+ "rom e/ec,ting an act which wo,l$ e law",l witho,t the easement& H*.5aI )omputation of the prescripti e period 4f the easement is positi e# the period is counted from the day on which the owner of the dominant estate began to exercise it o Crom the day a window was built in a party wall 4f the easement is negati e# from the day on which a notarial prohibition was made on the ser ient estate (nder article H**# non7apparent easements may not be ac%uired by prescription' =egati e easements are essentially non7apparent' Eowe er# article H*& pro ides the prescripti e period for negati e easements' /he notarial prohibition may be ta9en as ma9ing the easement apparent# and therefore# prescriptible' )omputation in case of easement of light and iew 4f made on ones own wall and the wall does not extend o er the property of another# the easement is negati e because the owner is merely exercising his inherent right of dominion and not an easement' o /he ser ient owner cannot close it up5 otherwise he will be liable for trespass' o 6ut the negati e easement is not automatically ested' /he owner must ma9e the prohibition re%uired upon the proprietor of the adjoining land or tenement to pre ent him from obstructing the light and iew' o 4f the latter consents to such prohibition and the period fixed by law expires# the easement will be ac%uired by prescription' /here is no true easement for as long as the right to prohibit its exercise exists' 4f made through a party wall or on ones own wall which extends o er the neighboring estate# the easement ac%uired is positi e because the owner of the latter estate who has a right to close it up allows an encumbrance on the property' o /he period of prescription shall be counted from the time of the opening of the window'
Art& 0))& :ontin,o,s non1a##arent easements+ an$ $iscontin,o,s ones+ whether a##arent or not+ may e ac6,ire$ only y 'irt,e o" a title& H*.7I Ac%uisition only by title )ontinuous and apparent easements are the only easements that can be ac%uired by prescription because they are the only ones the possession of which fulfills two important re%uisites re%uired by law for prescription 2 possession be public and continuous' /he easements mentioned in Art H** may be ac%uired by title# not by prescription because their possession or exercise is either not public !non7apparent" such as easement of lateral and subjacent support# or it is public but not continuous or uninterrupted !discontinuous"# li9e a right of way if there is a isible path' Eowe er# for legal purposes# the easement of a%ueduct shall be considered as continuous and apparent# although it is not really so' Art& 0).& The a sence o" a $oc,ment or #roo" showing the origin o" an easement which cannot e ac6,ire$ y #rescri#tion may e c,re$ y a $ee$ o" recognition y the owner o" the ser'ient estate or y a "inal !,$gment& H*49aI Art& 0)4& The e/istence o" an a##arent sign o" easement etween two estates+ esta lishe$ or maintaine$ y the owner o" oth+ shall e consi$ere$+ sho,l$ either o" them e alienate$+ as a title in or$er that the easement may contin,e acti'ely an$ #assi'ely+ ,nless+ at the time the ownershi# o" the two estates is $i'i$e$+ the contrary sho,l$ e #ro'i$e$ in the title o" con'eyance o" either o" them+ or the sign a"oresai$ sho,l$ e remo'e$ e"ore the e/ec,tion o" the $ee$& This #ro'ision shall also a##ly in case o" the $i'ision o" a thing owne$ in common y two or more #ersons& H*41aI Alienation by same owner of two estates with sign of existence of ser itude /his contemplates a situation where two estates between which there exists an apparent sign !li9e a window or road" of an easement belong to the same owner' What the law re%uires is that the sign indicates the existence of a ser itude although there is no true ser itude there being only one owner 4n case the owner alienates either of them or both with the result that
77
PROPERTY NOTES
the ownership thereof is di ided# the easement shall 0continue1 unless the contrary has been stipulated in the title of con eyance of either of them or the sign remo ed before the execution of the deed o /he existence of the apparent sign is e%ui alent to a title if no objection has been made by the ser ient owner for an implied contract that the easement should be constituted is deemed to exist between the new owners o /he dominant owner can oppose the owner of the ser ient estate from doing anything which would be inconsistent with his obligation to respect the easement 4f the lots are owned by two different owners# a notarial prohibition should be effected !Atty Abrenica" /his article applies in case of the di ision of a common property by the co7owners as the effect is the same as an alienation# or there is only one estate and a part thereof is alienated' /his article is not applicable in case the two estates or portions of the same estate remain or continue to be in the same owner after alienation or partition
All easements carry with them all the rights necessary for their use and exercise +ince these accessory rights or accessory easements exist solely by irtue of and for the use of the ser itude which can be considered as the principal one# they cease upon the termination of the ser itude
Art& 0)0& The owner o" the $ominant estate cannot ,se the easement e/ce#t "or the ene"it o" the immo'a le originally contem#late$& Neither can he e/ercise the easement in any other manner than that #re'io,sly esta lishe$& HnI 4mmo able to be benefited by easement# and manner of its exercise /he rule in the first sentence is just because if the owner of the dominant estate is allowed to use the ser itude for the benefit of other adjoining lands subse%uently ac%uired# or for others# that would ma9e the easement more onerous and beyond the intention of the parties 4f the easement has been constituted in general terms# only the rights which are reasonably necessary and con enient for the use contemplated and would case the least burden to the ser ient estate are granted' Where the purpose of the easement or the manner of its exercise is defined by the title creating it# the exercise of the easement must be consistent with such purpose or manner
)ase doctrine Where two adjoining estates were formerly owner by just one person who introduced impro ements on both# such that the wall of the house constructed on the first estate extends to the wall of the camarin on the second estate5 and at the time of the sale of the first estate# there existed on the wall of the house# doors and windows !which ser e as passages for light and iew"# there being no pro ision in the deed of sale that the easement of light and iew will not be established# the case is co ered by H*@' /he existence of doors and windows on the aforesaid wall of the house is e%ui alent to a title that characteriGes its existence' 6ut while the law declares that the easement is to 0continue1# the easement actually arises for the first time only upon alienation of another estate# inasmuch as before that time there is no easement to spea9 of# there being but one owner of both estates' !Gargantos /an Manon" Art& 0)*& C#on the esta lishment o" an easement+ all the rights necessary "or its ,se are consi$ere$ grante$& H*4)I $ights granted by easement
+.)/4?= /E$.. 2 $4GE/+ A=D ?6:4GA/4?=+ ?C /E. ?W=.$+ ?C /E. D?M4=A=/ A=D +.$F4.=/ .+/A/.+
Art& 0)2& The owner o" the $ominant estate may ma-e+ at his own e/#ense+ on the ser'ient state any wor-s necessary "or the ,se an$ #reser'ation o" the ser'it,$e+ ,t witho,t altering it or ren$ering it more ,r$ensome& 3or this #,r#ose he shall noti"y the owner o" the ser'ient estate+ an$ shall choose the most con'enient time an$ manner so as to ca,se the least incon'enience to the owner o" the ser'ient estate& H*4.aI What are the rights of the dominant owner? &' .xercise all the rights necessary for the use of the easement *' Ma9e on the ser ient estate all wor9s necessary for the use and preser ation of the ser itude -' $enounce the easement if he desires to exempt himself from the
78
PROPERTY NOTES
@'
contribution to necessary expenses As9 for mandatory injunction to pre ent impairment of his of the easement
What are the obligations of the dominant owner? &' )annot alter the easement or render it more burdensome *' =otify the ser ient owner of wor9s necessary for the use and preser ation of the ser itude -' )hoose the most con enient time and manner in ma9ing the necessary wor9s as to cause the least incon enience to the ser ient owner @' )ontribute to the necessary expenses if there are se eral dominant estates in proportion to the benefits deri ed from the wor9s What are the rights of the ser ient owner? &' $etain the ownership of the portion of the estate on which the easement is established *' Ma9e use of the easement# unless there is an agreement to the contrary -' )hange the place or manner of the use of the easement# pro ided it be e%ually con enient What are the obligations of the ser ient owner? &' )annot impair the use of the easement *' )ontribute to the necessary expenses in case he uses the easement# unless there is an agreement to the contrary $ight of the dominant owner to ma9e necessary wor9s $ight granted by H*I is subject to the following conditions8 &' Wor9s shall be at his expense and are necessary for the use and preser ation of the ser itude *' /hey do not alter or render the ser itude more burdensome5 -' /he dominant owner# before ma9ing the wor9s# must notify the ser ient owner# and @' /hey shall be done at the most con enient time and manner as to cause the lease incon enience to the ser ient owner )ase doctrine !Goldcrest )ypress Gardens"
"rom the wor-& Any one who $oes not wish to contri ,te may e/em#t himsel" y reno,ncing the easement "or the ene"it o" the others& I" the owner o" the ser'ient estate sho,l$ ma-e ,se o" the easement in any manner whatsoe'er+ he shall also e o lige$ to contri ,te to the e/#enses in the #ro#ortion state$+ sa'ing an agreement to the contrary& H*44I ?bligation to contribute to expenses of necessary wor9s /his article contemplates se eral dominant estates' All the owners shall share the expenses in proportion to the benefits deri ed by each estate from the wor9s and not in proportion to their respecti e interests' /he benefits shall be presumed e%ual in the absence of any agreement or proof to the contrary' /he easement of right of way ordinarily gi es the same benefit An owner may exempt himself from contributing to the expenses by renouncing the easement in fa or of the others' What about the ser ient owner? Well# he shall be obliged to contribute to the expense except when there is a stipulation to the contrary# should he ma9e use of the easement in any manner whatsoe er' 4f he bound himself to bear the cost of the wor9# he may free himself form the obligation by renouncing his property to the dominant owner !Art HK-" Art& 0)7& The owner o" the ser'ient estate cannot im#air+ in any manner whatsoe'er+ the ,se o" the ser'it,$e& Ne'ertheless+ i" y reason o" the #lace originally assigne$+ or o" the manner esta lishe$ "or the ,se o" the easement+ the same sho,l$ ecome 'ery incon'enient to the owner o" the ser'ient estate+ or sho,l$ #re'ent him "rom ma-ing any im#ortant wor-s+ re#airs or im#ro'ements thereon+ it may e change$ at his e/#ense+ #ro'i$e$ he o""ers another #lace or manner e6,ally con'enient an$ in s,ch a way that no in!,ry is ca,se$ there y to the owner o" the $ominant estate or to those who may ha'e a right to the ,se o" the easement& H*4*I ?bligation of ser ient owner not to impair ser itude /he ser ient owner may abstain from constructing wor9s or performing any act which will impair# in any manner whatsoe er# the use of the ser itude' An injunction lies at the instance of the dominant owner to prohibit the ser ient owner from impairing the use of the ser itude $ight of ser ient owner to change place or manner of easement
Art& 0)5& Sho,l$ there e se'eral $ominant estates+ the owners o" all o" them shall e o lige$ to contri ,te to the e/#enses re"erre$ to in the #rece$ing article+ in #ro#ortion to the ene"its which each may $eri'e
79
PROPERTY NOTES
While the ser ient estate cannot impair the use of the ser itude# he may change at his expense the place or manner for its use pro ided the following re%uisites are present8 &' /he place or manner has become ery incon enient to him or pre ents him from ma9ing important wor9s thereon5 *' Ee offers another place or manner e%ually con enient5 and -' =o injury is caused by the chance to the dominant owner or to whoe er may ha e a right to the use of the easement'
,nless when the ,se ecomes #ossi le+ s,""icient time "or #rescri#tion has ela#se$+ in accor$ance with the #ro'isions o" the #rece$ing n,m er( H4I =y the e/#iration o" the term or the ",l"illment o" the con$ition+ i" the easement is tem#orary or con$itional( H*I =y the ren,nciation o" the owner o" the $ominant estate( H0I =y the re$em#tion agree$ ,#on etween the owners o" the $ominant an$ ser'ient estates& H*40aI What are the modes of extinguishment of easements? &' 6y merger 4t is not necessary that it be with respect to the full extent of the tenement but only with respect to that part affected by the ser itude or that part for the benefit of which the ser itude was established /he merger must be absolute and complete in one and the same person and not by irtue of other real rights less than full ownership' !where the merger is temporary# as when it is subject to a resolutory condition# there is only a suspension but not an extinguishment of the ser itude'" 4f the ser ient owner becomes a co7owner of the dominant estate# there is no merger for he has ac%uired only a part interest therein' 4f the dominant sells a retro the whole immo able to the ser ient# the easement is not extinguished but only suspended' /he ser itude is re i ed when the dominant redeems the property' What if the dominant sells absolutely to the ser itude# buys it bac9# then sells it to a third person' /here is no re i al here because it was already unconditionally extinguished by the sale of the property to the ser ient' 6ut if the sale to ser ient by dominant was rescinded or annulled# there is no extinguishment by merger' *' 6y non7user for ten years /his mode is applicable only to easements that ha e been in use and later abandoned# for one cannot discontinue using what one has ne er used +ome legal easements !natural drainage" may be extinguished by non7user# but only with respect to the actual form or manner in which they had been exercised# and the right or the power to claim the exercise of legal easements does not prescribe# as occurs especially in the case of the right of way and easement of a%ueduct' !Crancisco 3aeG" 4f the easement is discontinuous !right of way"# the period of ten
Art& 0.9& The owner o" the ser'ient estate retains the ownershi# o" the #ortion on which the easement is esta lishe$+ an$ may ,se the same in s,ch a manner as not to a""ect the e/ercise o" the easement& HnI $ight of ser ient owner to use easement /he ser ient owner preser es his dominion o er the portion of his estate on which the easement is established /his is true although the indemnity consists of the alue of the land occupied and the amount of the damage to the ser ient estate !Art H@K" Ee may use the easement subject to the condition that he does not impair the rights of the dominant owner' )ase doctrine When the trial court found that the persons right to continue to use the septic tan9 ceased upon the subdi ision of the land and its subse%uent sale to different owners who do not ha e the same interest# the +upreme )ourt said that this is contrary to law' !/anedo 6ernad"
+.)/4?= C?($ 2 M?D.+ ?C .Q/4=G(4+EM.=/ ?C .A+.M.=/+

Art& 0.1& Easements are e/ting,ishe$% H1I =y merger in the same #erson o" the ownershi# o" the $ominant an$ ser'ient estates( H)I =y non,ser "or ten years( with res#ect to $iscontin,o,s easements+ this #erio$ shall e com#,te$ "rom the $ay on which they cease$ to e ,se$( an$+ with res#ect to contin,o,s easements+ "rom the $ay on which an act contrary to the same too- #lace( H.I <hen either or oth o" the estates "all into s,ch con$ition that the easement cannot e ,se$( ,t it shall re'i'e i" the s, se6,ent con$ition o" the estates or either o" them sho,l$ again #ermit its ,se+
80
PROPERTY NOTES
-'
years shall be computed from the day it ceased to be used' 4f continuous !natural drainage"# from the day on which an act contrary to the same too9 place !li9e construction of a dam which bloc9s natural drainage" /he non7use must be oluntary on the part of the dominant owner and not due to fortuitous e ents beyond his control unless the non7 use is due to the impossibility of use under no Whats the basis? Well# its presumpti e renunciation' o +o# the proof of non7user must be undubitable particularly where the easement is perpetual in character because of its annotation in the /orrens title' /hus# the mere non7use of a passageway by the dominant owner who has gained direct access to another way does not extinguish the easement of right of way' 4n the absence of any e idence that could point to mutual agreement to the discontinuance of the easement annotated on the title# its continued existence must be upheld /he use by a co7owner of the dominant estate benefits all the other co7owners and pre ents prescription as to them' 4mpossibility of use When the condition of either or both of the estates which ma9es impossible the use of the easement is irreparable# whether caused by fortuitous e ents or not# the ser itude is absolutely extinguished o ?therwise# the impossibility of use merely suspends the ser itude until such time when it can be used again 6y expiration of term or fulfillment of resolutory condition 6y renunciation /he renunciation or wai er must be specific# clear and express' /his is particularly true for discontinuous easements such as right of way' /he wai er must be at least such as may be ob iously gathered from positi e acts 2 if not formal and solemn' /he mere refraining from claiming the right# without any positi e acts imply a real wai er# is not sufficient for the purpose although it may constitute non7use' A clear case of implied wai er is the act of co ering up a window by the dominant owner and yet this act does not ipso %acto extinguish the easement# but only ser es to ma9e the starting point for prescription' !Crancisco 3aeG" Where the easement is in fa or of a particular group of persons# the
H'
I'
oluntary renunciation thereof by some of them will not affect the right of the others' 6y redemption it must be by irtue of an agreement between the owners of the dominant and ser ient estates under which the ser itude would be extinguished 6y other causes Annulment# rescission# abandonment# etc $egistration of the ser ient estate under the /orrens system without the easement being annotated in the title
@' <'
+ome case doctrines Alienation of the dominant and ser ient estates to different persons is not one of the grounds for extinguishment of the easement' !/anedo 6ernad" Absent a statement abolishing or extinguishing the easement# then the easement is continued by operation of law' !/anedo 6ernad" An easement is perpetual in character when it is annotated on all the transfer certificates of title issued' +ince there is no e idence that would point to a mutual agreement between any of the parties with respect to the discontinuance or obliteration of the easement annotated on the titles# the continued existence of the easement must be upheld and respected' !6enedicto )A" =68 When the easement is a legal easement# it need not be annotated in the title' A legal easement is one mandated by law# constituted for public use or for pri ate interest and becomes a continuing property right' 4t is inseparable from the estate to which it belongs' +o# theres no need to annotate in the title' !Fillanue a Felasco" A oluntary easement of right of way# li9e any other contract# could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate' As it is li9e any other contract# it is generally effecti e between the parties# their heirs and assigns# except in case where the rights and obligations arising from the contract are not transmissible by their nature# or by stipulation# or by pro ision of law' !(nisource )hung# *;;K" 4f there are easement or other rights appurtenant to a parcel of registered land which for any reason ha e failed to be registered# such easement or rights shall remain so appurtenant notwithstanding such failure# and shall be held to pass with the land until cut off or extinguished by the registration of the ser ient estate or in any other
81
PROPERTY NOTES
manner' An easement is cut off or extinguished by the registration of the ser ient estate under the /orrens system without the easement being annotated on the corresponding certificate of title# pursuant to +ec -K of Act @KH !3urugganan 3aredes" o .Q).3/4?=8 When the person who registers the ser ient estate has A)/(A: 9nowledge that an easement exists' !?ne cant rely on the face of the title if one has actual 9nowledge of facts which should compel him to do further in estigation" Art& 0.)& The "orm or manner o" ,sing the easement may #rescri e as the easement itsel"+ an$ in the same way& H*42aI 3rescription of form or manner of using easement /he form or manner !or mode" of using the easement is different from the easement itself or the right to exercise it 6oth may be lost by prescription +ome legal easements# howe er# do not prescribe but the form or manner of using all easements including legal easements may be lost or ac%uired by prescription Art& 0..& I" the $ominant estate elongs to se'eral #ersons in common+ the ,se o" the easement y any one o" them #re'ents #rescri#tion with res#ect to the others& H*45I Where dominant estate owned in common .asements are indi isible Eence# the use by a co7owner inures to the benefit of all the other co7 owners and pre ents prescription as to shares of the latter 4n other words# the use by a co7owner is deemed to be used by each and all the co7owners
What is legal easement? :egal easements are easements imposed or mandated by law# and which ha e for their object8 o either public use or o the interest of pri ate properties /hey become a continuing property right Ninds of legal easements &' 3ublic legal easements or those for public or communal use *' 3ri ate legal easements or those for the interest of pri ate persons or for pri ate use# which include those relating to a' Waters b' $ight of way c' 3arty wall d' :ight and iew e' Drainage f' 4ntermediate distances g' Against nuisance h' :ateral and subject support )ase doctrine +ee Fillanue a Felasco cited in Art H-&
Art& 0.*& All matters concerning easements esta lishe$ "or #, lic or comm,nal ,se shall e go'erne$ y the s#ecial laws an$ reg,lations relating thereto+ an$+ in the a sence thereo"+ y the #ro'isions o" this Title& H**9I Art& 0.0& Easements esta lishe$ y law in the interest o" #ri'ate #ersons or "or #ri'ate ,se shall e go'erne$ y the #ro'isions o" this Title+ witho,t #re!,$ice to the #ro'isions o" general or local laws an$ or$inances "or the general wel"are& These easements may e mo$i"ie$ y agreement o" the intereste$ #arties+ whene'er the law $oes not #rohi it it or no in!,ry is s,""ere$ y a thir$ #erson& H**1aI Go erning laws &' 3ublic legal easements 2 they are go erned primarily by the special laws and regulations relating thereto# and by the )i il )ode !H-@7HDI"#
:;APTER ) LE>AL EASEMENTS +.)/4?= ?=. 2 G.=.$A: 3$?F4+4?=+

Art& 0.4& Easements im#ose$ y law ha'e "or their o !ect either #, lic ,se or the interest o" #ri'ate #ersons& H*47I
82
PROPERTY NOTES
*'
inclusi e' 3ri ate legal easements a' 6y agreement of the interested parties pro ided it is not prohibited by law or injurious to a third person b' 4n the absence of agreement# by the pro isions of general and local laws and ordinances for the general welfare5 and c' 4n default of a and b# by articles H-@ to HDI# inclusi e of the )i il )ode'
)ase doctrine Where the land was originally public land# and awarded by free patent with a reser ation for a legal easement of a right7of7way in fa or of the go ernment# just compensation need not be paid for the ta9ing of a part thereof for public use as an easement of a right of way# unli9e if the land were originally pri ate property' !=4A )A"
+.)/4?= /W? 2 .A+.M.=/+ $.:A/4=G /? WA/.$+

Art& 0.2& Lower estates are o lige$ to recei'e the waters which nat,rally an$ witho,t the inter'ention o" man $escen$ "rom the higher estates+ as well as the stones or earth which they carry with them& The owner o" the lower estate cannot constr,ct wor-s which will im#e$e this easement( neither can the owner o" the higher estate ma-e wor-s which will increase the ,r$en& H**)I :egal easements relating to waters &' =atural drainage !H-I" *' Drainage of buildings !HI@" -' .asement on riparian ban9s for na igation# floatage# fishing# sal age# and towpath !H-D" @' .asement of a dam !H-K# H@I" <' .asement for drawing water or for watering animals !H@;7H@&" H' .asement of a%ueduct !H@*7H@H" I' .asement for the construction of a stop loc9 or sluice gate !H@I" =atural drainage of lands /his article imposes a natural easement upon the lower estates which are obliged to recei e the waters which naturally and without the inter ention of man descend from the higher estates# as well as the stones or earth carried by the waters' /his easement is a continuous one and may be extinguished by non7
user for the period of &; years re%uired by law' /hus# if a di9e was constructed by the ser ient owner !an act contrary to the easement"# the action to destroy the di9e is barred if brought only after & years' Duty of ser ient owner 2 the owner of the lower estate cannot construct wor9s which will impede this easement# such as walls# ditches or fences# or a dam which bloc9s the natural flow of the waters' /he dominant owner may demand their remo al or destruction and reco er damages' /he ser ient owner may construct wor9s to regulate the flow of waters# but not those which will impede the easement' Duty of dominant owner 2 the owner of the higher tenement cannot ma9e wor9s which will increase the burden' 4f the waters are the result of artificial de elopment# or are the o erflow from irrigation dams# or proceed from industrial establishments recently set up# the owner of the lower estate shall be entitled to compensation for his loss or damage' o 6ut the dominant owner is not prohibited from culti ating his land or constructing wor9s to regulate the descent of the waters to pre ent erosion to his land and as long as he does not impede the natural flow of the waters and increase the burden of the lower estate# he is not liable for damages'
$emember $emman )A? /he case with the pig shit? 4t also said that tax returns per se could not reflect the total amount of damages suffered by a party# as income losses from a portion of his property could be offset by any profit deri ed from the rest of said property or from other sources of income' Art& 0.5& The an-s o" ri'ers an$ streams+ e'en in case they are o" #ri'ate ownershi#+ are s, !ect thro,gho,t their entire length an$ within a 4one o" three meters along their margins+ to the easement o" #, lic ,se in the general interest o" na'igation+ "loatage+ "ishing an$ sal'age& Estates a$!oining the an-s o" na'iga le or "loata le ri'ers are+ ",rthermore+ s, !ect to the easement o" tow#ath "or the e/cl,si'e ser'ice o" ri'er na'igation an$ "loatage& I" it e necessary "or s,ch #,r#ose to occ,#y lan$s o" #ri'ate ownershi#+ the #ro#er in$emnity shall "irst e #ai$& H**.aI 3ublic easements on ban9s of ri er 6an9s of ri ers and streams# whether they are of public or pri ate ownership# are subject to easement of public use for8 &' =a igation *' Cloatage
83
PROPERTY NOTES
-' @' <'
Cishing +al age With respect to estates adjourning ban9s of na igable ri ers# also to easement of towpath' 4f the land is of public ownership# there is no indemnity5 if of pri ate ownership# the proper indemnity shall first be paid before it may be occupied' $iparian owners cannot be re%uired to subject their property to the easement for the benefit of the public without prior indemnity' /he width of the Gone subject to the easement is - meters throughout the entire length of the ban9 along its margin' /he easement established by Article H-D does not apply to canals or esteros'
in estigation of record is an essential prere%uisite to the exercise of the power' !+olis 3ujeda" Art& 049& :om#,lsory easements "or $rawing water or "or watering animals can e im#ose$ only "or reasons o" #, lic ,se in "a'or o" a town or 'illage+ a"ter #ayment o" the #ro#er in$emnity& H***I Art& 041& Easements "or $rawing water an$ "or watering animals carry with them the o ligation o" the owners o" the ser'ient estates to allow #assage to #ersons an$ animals to the #lace where s,ch easements are to e ,se$+ an$ the in$emnity shall incl,$e this ser'ice& H**0I Drawing water or watering animals /his is a personal easement which includes the accessory easement of passage or right of way of persons and animals to the place where the easement is to be used' $e%uisites are8 &' Must be imposed for reasons of public use5 *' Must be in fa or of a town or illage5 and -' Must be payment of proper indemnity' Art& 04)& Any #erson who may wish to ,se ,#on his own estate any water o" which he can $is#ose shall ha'e the right to ma-e it "low thro,gh the inter'ening estates+ with the o ligation to in$emni"y their owners+ as well as the owners o" the lower estates ,#on which the waters may "ilter or $escen$& H**2I Art& 04.& One $esiring to ma-e ,se o" the right grante$ in the #rece$ing article is o lige$% H1I To #ro'e that he can $is#ose o" the water an$ that it is s,""icient "or the ,se "or which it is inten$e$( H)I To show that the #ro#ose$ right o" way is the most con'enient an$ the least onero,s to thir$ #ersons( H.I To in$emni"y the owner o" the ser'ient estate in the manner $etermine$ y the laws an$ reg,lations& H**5I Art& 044& The easement o" a6,e$,ct "or #ri'ate interest cannot e im#ose$ on ,il$ings+ co,rtyar$s+ anne/es+ or o,tho,ses+ or on orchar$s or gar$ens alrea$y e/isting& H**7I
Art& 0.7& <hene'er "or the $i'ersion or ta-ing o" water "rom a ri'er or roo-+ or "or the ,se o" any other contin,o,s or $iscontin,o,s stream+ it sho,l$ e necessary to ,il$ a $am+ an$ the #erson who is to constr,ct it is not the owner o" the an-s+ or lan$s which m,st s,##ort it+ he may esta lish the easement o" a ,tment o" a $am+ a"ter #ayment o" the #ro#er in$emnity& H**4I Abutment of buttress of a dam A person who needs to build a dam to di ert or ta9e water from a ri er or broo9 but is not the owner of the ban9s or lands which must support the dam# may be allowed the easement of abutment or buttress of a dam !estribo de presa" Ee must see9 the permission of the owner# and in case of the latters refustal# he must secure authority from the proper administrati e agency which will conduct the necessary in estigation in which all interested parties are gi en opportunity to be heard' 4n establishing the easement# the proper indemnity must be paid' Where the construction of a dam is unauthoriGed# the same can be considered a pri ate nuisance and may be lawfully destroyed or remo ed by the injured landowner or by any persona acting under his directions' )ase doctrine An easement of buttress can be imposed by administrati e authority with respect to land lying adjacent to public or pri ate waters5 but in such case it is re%uired that an in estigation of record shall be made before the easement of buttress is decreed' /he ma9ing of the
84
PROPERTY NOTES
.asement of a%ueductJ what is it?> .asement of a%ueduct is the right arising from a forced easement by irtue of which the owner of an estate who desires to a ail himself of water for the use of said estate may ma9e such waters pass through the intermediate estate with the obligation of indemnifying the owner of the same and also the owner of the estate to which the water may filter or flow' /he easement is pro ided in Article H@*' 4t gi es the right to ma9e water flow through or under inter ening or lower estates' $e%uisites? /he person desiring to ma9e use of the easement must8 &' 3ro e that he has the capacity to dispose of the water5 *' 3ro e that the water is sufficient for the use intended5 -' +how that the proposed right of way is the most con enient and the least onerous to third persons5 and @' 3ay indemnity to the owner of the ser ient estate' 6ut where the number of years that ha e elapsed since the easement had first come into existence and the subse%uent changes in ownership of lots in ol ed would ma9e it impossible to present proof of indemnity to the owner of the ser ient estate# this re%uisite has been deemed to be complied with' !+alaGar GutierreG" /he easement cannot be imposed o er buildings# courtyards# annexes or gardens if the easement is for pri ate interest'
allowed it to continue for *H years after they ac%uired title' !+alaGar GutierreG" Art& 04*& The easement o" a6,e$,ct $oes not #re'ent the owner o" the ser'ient estate "rom closing or "encing it+ or "rom ,il$ing o'er the a6,e$,ct in s,ch manner as not to ca,se the latter any $amage+ or ren$er necessary re#airs an$ cleanings im#ossi le& H*09I $ight of owner of ser ient estate /he ser ient owner may close or fence his estate# or build o er the a%ueduct so long as no damage is caused to the a%ueduct or the necessary repairs and cleaning of the same are not rendered impossible' Ee can construct wor9s he may deem necessary to pre ent damage to himself pro ided he does not impede or impair# in any manner whatsoe er# the use of the easement 2 just li9e the owner of the lower estate on which an easement of natural drainage has been established' 4f he does impair# the dominant owner may as9 for the remo al or destruction of such wor9s with a right to indemnity for damages' Art& 040& 3or legal #,r#oses+ the easement o" a6,e$,ct shall e consi$ere$ as contin,o,s an$ a##arent+ e'en tho,gh the "low o" the water may not e contin,o,s+ or its ,se $e#en$s ,#on the nee$s o" the $ominant estate+ or ,#on a sche$,le o" alternate $ays or ho,rs& H*01I .asement considered as continuous and apparent Cor legal purposes# the easement is considered continuous and apparent and therefore# may be susceptible of ac%uisiti e prescription' Art& 042& One who "or the #,r#ose o" irrigating or im#ro'ing his estate+ has to constr,ct a sto# loc- or sl,ice gate in the e$ o" the stream "rom which the water is to e ta-en+ may $eman$ that the owners o" the an-s #ermit its constr,ction+ a"ter #ayment o" $amages+ incl,$ing those ca,se$ y the new easement to s,ch owners an$ to the other irrigators& H*0)I )onstruction of a stop loc9 or sluice gate 4n Article H-K# the purpose of building a dam is to di ert water from a ri er or broo9' Eere# the purpose of the construction is to ta9e water for irrigation# or to impro e an estate' 4n both cases# the construction is on the estate of another and proper
)ase doctrines /he +panish :aw of Waters allows the creation of a compulsory easement of a%ueduct for the purpose of establishing or extending an irrigation system# and there is nothing to the contrary in the )i il )ode' /he registration of the ser ient lot without the corresponding registration of the easement of a%ueduct on the title cannot summarily terminate it -; years thereafter where the original registered owner of the ser ient lot allowed the easement to continue in spite of such non7registration' /he least that can be said is that he either recogniGed its existence as a compulsory ser itude on his estate or oluntarily agreed to its establishment and continuance' And subse%uent purchasers of the ser ient estate cannot capitaliGe on the absence of annotation on the title where they are aware of the existence of the easement and li9ewise
85
PROPERTY NOTES
indemnity has to be paid' Curthermore# no damage must be caused to third persons' Art& 045& The esta lishment+ e/tent+ "orm an$ con$itions o" the ser'it,$es o" waters+ to which this section re"ers+ shall e go'erne$ y the s#ecial laws relating thereto inso"ar as no #ro'ision there"or is ma$e in this :o$e& H*0.aI
*' -' @' <' H'
right =o ade%uate outlet to a public highway $ight of way must be absolutely necessary /he isolation must not be due to the claimants own act /he easement must be established at the point least prejudicial /here must be payment of proper indemnity
+.)/4?= /E$.. 2 .A+.M.=/ ?C $4GE/ ?C WAM

Art& 047& The owner+ or any #erson who y 'irt,e o" a real right may c,lti'ate or ,se any immo'a le+ which is s,rro,n$e$ y other immo'a les #ertaining to other #ersons an$ witho,t a$e6,ate o,tlet to a #, lic highway+ is entitle$ to $eman$ a right o" way thro,gh the neigh oring estates+ a"ter #ayment o" the #ro#er in$emnity& Sho,l$ this easement e esta lishe$ in s,ch a manner that its ,se may e contin,o,s "or all the nee$s o" the $ominant estate+ esta lishing a #ermanent #assage+ the in$emnity shall consist o" the 'al,e o" the lan$ occ,#ie$ an$ the amo,nt o" the $amage ca,se$ to the ser'ient estate& In case the right o" way is limite$ to the necessary #assage "or the c,lti'ation o" the estate s,rro,n$e$ y others an$ "or the gathering o" its cro#s thro,gh the ser'ient estate witho,t a #ermanent way+ the in$emnity shall consist in the #ayment o" the $amage ca,se$ y s,ch enc,m rance& This easement is not com#,lsory i" the isolation o" the immo'a le is $,e to the #ro#rietorJs own acts& H*04aI Art& 0*9& The easement o" right o" way shall e esta lishe$ at the #oint least #re!,$icial to the ser'ient estate+ an$+ inso"ar as consistent with this r,le+ where the $istance "rom the $ominant estate to a #, lic highway may e the shortest& H*0*I .asement of right of wayJ D.C4=.D> .asement of right of way is the right granted by law to the owner of an estate which is surrounded by other estates belonging to other persons and without an ade%uate outlet to a public highway to demand that he be allowed a passageway throughout such neighboring estates after payment of the proper indemnity' $e%uisites of the easment !based on de :eon" &' )laimant must be an owner of enclosed immo able or one with real
)laimant must be an owner of enclosed immo able or one with real right =ot only the owner but any person who by irtue of a real right may culti ate or use an immo able# may demand a right of way' A usufructuary may demand a right of way' &' A mortgagee is not entitled to demand because it is necessary that the land be culti ated or used by irtue of a right li9e that of a usufruct *' A mere lessee cannot demand the legal ser itude of way because his action is against the lessor who is bound to maintain him in the enjoyment of the lease' Eowe er# if the lessee registers the lease in the $egistry of 3roperty# it becomes a real right# and the lessee would then be entitled to demand the right of way' =o ade%uate outlet to a public highway )o ers cases when there is absolutely no outlet or access# or e en when there is one# the same is not ade%uate !li9e when its dangerous# ery costly# etc" /he owner of the ser ient estate cannot obstruct the use of the easement if the proposed new location for it is farther and is not as con enient' $ight of way must be absolutely necessary /he right cannot be claimed merely for the con enience of the owner of the enclosed estate' ?wner must show that the compulsory easement is absolutely necessary for the normal enjoyment of his property' . en if necessary but it can be satisfied without imposing the ser itude# the same should not be imposed' /he easement can be established for the benefit of a tenement with an inade%uate outlet# but not when the outlet is merely incon enient' 4solation must not be due to the claimants own act
86
PROPERTY NOTES
4f he constructs a permanent structure and effecti ely bloc9s himself out from the pubic highway# then he is stupid and he will not be granted an easement'
)A" What are the 9inds of easements of right of way? &' 3ri ate# when it is established in fa or of a pri ate person# such as the right granted in Article H@K5 or *' 3ublic# when it is a ailable in fa or of the community or the public at large' Ac%uisition and extinguishment by prescription /he easement of right of way# being discontinuous# cannot be ac%uired ny prescription' 4t may be apparent# but it is not a continuous easement' De :eon gi es some reasons why the easement of right of way should be considered as continuous in page @D; of his boo9' )ase doctrines $e%uisites of the easement !based on FaldeG /abisula5 :ee# Fillanue a5 etc" &' )laimant must be an owner of enclosed immo able or one with real right *' 3roperty is surrounded by other immo ables and has no ade%uate outlet to a public highway -' 3roper indemnity must be paid @' /he isolation is not the result of the owner of the dominant estates own acts <' /he right of way claimed is at the least prejudicial to the ser ient estate H' /o the extent consistent with the foregoing rule# the distance from the dominant estate to a public highway may be the shortest' /he onus of pro ing the existence of these re%uisites lies on the owner of the dominant estate' $e%uisites na naman7 !based on Mejorada FertudaGo" &' /he estate is surrounded by other immo ables and is without ade%uate outlet to a public highway5 *' After payment of the proper indemnity -' /he isolation was not due to the proprietors acts5 and @' /he right of way claimed is at a point least prejudicial to the ser ient estate' ?ne whose land is enclosed by the lands of others at one ac%uires the right to demand an easement of way to the nearest street or road# but his failure to do so does not constitute a renunciation of his right nor
/he easement must be established at the point least prejudicial to the ser ient estate /he shortest is not always the least prejudicial' /he criterion of least prejudicial shall be obser ed although the distance may not be the shortest or is e en the longest' 4n other words# this is the /.+/ 7 the one where the way is shortest and will cause the least damage should be chosen' o 6ut if these two circumstances do not concur in a single tenement# the way which will cause the least damage should be used# e en if it would not be the shortest' 6etween a right of way that will demolish a house and another one which will merely cut down a tree !yet is a longer route to the highway"# the latter shall pre ail' /he rule is different in eminent domain proceedings wherein the grantee of the power of eminent domain can choose as he pleases# as long as it is not capricious and wantonly injurious' 3roper indemnity /he right can be ac%uired only after the proper indemnity has been paid' 4f the passage is of continuous and permanent nature !continuous for all the needs of the dominant estate"# the indemnity consists of the alue of the land occupied plus amount of damages caused to the ser ient estate5 and 4f it is temporary !limited to the necessary passage for the culti ation of the enclosed estate and for the gathering of its crops through the ser ient estate"# indemnity consists in the payment of the damage caused to the ser ient estate' . en if the easement is for a laudable purpose# there is still a need for compensation' 6(/J o Where the land was originally public land# and awarded by free patent and was registered with an ?)/ and /)/ with a reser ation for a legal easement of a right7of7way in fa or of the go ernment# just compensation need not be paid for the ta9ing of a part thereof for public use as an easement of a right of way# unli9e if the land were originally pri ate property' !=4A
87
PROPERTY NOTES
does the right to demand such easement prescribe under Article H-&' /he right to demand a right of way is imprescriptible' !Crancisco 3aeG" Art& 0*1& The wi$th o" the easement o" right o" way shall e that which is s,""icient "or the nee$s o" the $ominant estate+ an$ may accor$ingly e change$ "rom time to time& H*00aI Width of the passage 4t is the needs of the dominant property which ultimately determine the width of the passage# and these needs may ary from time to time' /he easement established may thus be changed or modified from time to time as the subse%uent needs of the dominant estate may demand' Art& 0*)& <hene'er a #iece o" lan$ ac6,ire$ y sale+ e/change or #artition+ is s,rro,n$e$ y other estates o" the 'en$or+ e/changer+ or co1owner+ he shall e o lige$ to grant a right o" way witho,t in$emnity& In case o" a sim#le $onation+ the $onor shall e in$emni"ie$ y the $onee "or the esta lishment o" the right o" way& H*02aI Art& 0*.& In the case o" the #rece$ing article+ i" it is the lan$ o" the grantor that ecomes isolate$+ he may $eman$ a right o" way a"ter #aying a in$emnity& ;owe'er+ the $onor shall not e lia le "or in$emnity& HnI Where land of transferor or transferee enclosed /hese two articles are exceptions to the re%uirement in Article H@K regarding the payment of indemnity' 4f the land transferred is surrounded by other estates of the endor# exchanger or co7owner# the transferee is not obliged to pay indemnity for the easement as the consideration for the transfer is presumed to include the easement without the indemnity' o 4f the right of way becomes useless for some reason or another# it is no longer than transferors fault' Apply Article H@*' o Article H<* is not applicable in case of simple donation because the donor recei es nothing for his property' 4f it is the land of the grantor that becomes isolated# he may demand a right of way but shall be obliged to pay indemnity unless the purchaser agreed to grant right without indemnity' o /he donor shall not be liable for indemnity as it is considered a
tacit condition of the donation' Art& 0*4& I" the right o" way is #ermanent+ the necessary re#airs shall e ma$e y the owner o" the $ominant estate& A #ro#ortionate share o" the ta/es shall e reim ,rse$ y sai$ owner to the #ro#rietor o" the ser'ient estate& HnI $esponsibility for repairs and taxes /his applies if the right of way is permanent' /he ser ient owner retains ownership of the passageway5 hence# he pays all the taxes' /he dominant owner is liable for the necessary repairs and the proportionate share of the taxes paid by the ser ient owner# meaning the amount of taxes corresponding to the portion on which the easement is established' Art& 0**& I" the right o" way grante$ to a s,rro,n$e$ estate ceases to e necessary eca,se its owner has !oine$ it to another a ,tting on a #, lic roa$+ the owner o" the ser'ient estate may $eman$ that the easement e e/ting,ishe$+ ret,rning what he may ha'e recei'e$ y way o" in$emnity& The interest on the in$emnity shall e $eeme$ to e in #ayment o" rent "or the ,se o" the easement& The same r,le shall e a##lie$ in case a new roa$ is o#ene$ gi'ing access to the isolate$ estate& In oth cases+ the #, lic highway m,st s, stantially meet the nee$s o" the $ominant estate in or$er that the easement may e e/ting,ishe$& H*05aI .xtinguishment of compulsory easement of right of way /his applies to compulsory easement of right of way' /he two causes of extinguishment are8 &' /he joining of the isolated estate to another abutting a public road# and *' ?pening a new road which gi es access to the estate' /he new outlet must be ade%uate' /he extinguishment is not automatic because the law says that the owner of the ser ient estate may demand that the easement be extinguished# if he so desires' +o# the dominant owner cannot as9 for the return of the indemnity# if the ser ient owner chooses to allow the continuation of the easement'
88
PROPERTY NOTES
/he ser ient owner is not liable to pay interest on the indemnity as the interest is deemed to be payment for the use of the easement'
Art& 0*0& I" it e in$is#ensa le "or the constr,ction+ re#air+ im#ro'ement+ alteration or ea,ti"ication o" a ,il$ing+ to carry materials thro,gh the estate o" another+ or to raise therein sca""ol$ing or other o !ects necessary "or the wor-+ the owner o" s,ch estate shall e o lige$ to #ermit the act+ a"ter recei'ing #ayment o" the #ro#er in$emnity "or the $amage ca,se$ him& H*07aI /emporary easement of right of way /his applies to a right of way which is essentially temporary or transitory' 4t is sufficient that great incon enience# difficulty# or expense would be encountered if the easement was not granted' /emporary easement is allowed only after the payment of the proper indemnity' )ase doctrine /he installation of electric power lines is a permanent easement not co ered by Article H<H' Article H<H deals only with the temporary easement of passage' !3reysler# Ar )A" Art& 0*2& Easements o" the right o" way "or the #assage o" li'estoc-nown as animal #ath+ animal trail or any other+ an$ those "or watering #laces+ resting #laces an$ animal "ol$s+ shall e go'erne$ y the or$inances an$ reg,lations relating thereto+ an$+ in the a sence thereo"+ y the ,sages an$ c,stoms o" the #lace& <itho,t #re!,$ice to rights legally ac6,ire$+ the animal #ath shall not e/cee$ in any case the wi$th o" 2* meters+ an$ the animal trail that o" .2 meters an$ *9 centimeters& <hene'er it is necessary to esta lish a com#,lsory easement o" the right o" way or "or a watering #lace "or animals+ the #ro'isions o" this Section an$ those o" Articles 049 an$ 041 shall e o ser'e$& In this case the wi$th shall not e/cee$ 19 meters& H*29aI $ight of way for the passage of li estoc9# watering places /he easements shall be go erned by the ordinances# regulations# and in their absence# usages and customs of the place' Animal path max width8 I< meters
Animal trail max width8 -I'< meters Cor drawing waters and for watering animals max width8 &; meters o 4n the last case# they can be imposed only for reasons of public use in fa or of a town or barrio and only after payment of the proper indemnity'
SE:TION 3OCR A EASEMENT O3 PARTY <ALL

Art& 0*5& The easement o" #arty wall shall e go'erne$ y the #ro'isions o" this Title+ y the local or$inances an$ c,stoms inso"ar as they $o not con"lict with the same+ an$ y the r,les o" co1ownershi#& H*21aI Whats an easement of party wall? 4t refers to all those mass of rights and obligations emanating from the existence and common enjoyment of wall# fence# enclosures or hedges# by the owners of adjacent buildings and estates separated by such objects' What is a party wall# what is its nature? A party wall is a common wall which separates two estates# built by common agreement at the di iding line such that it occupies a portion of both estates on e%ual parts' 4t is a 9ind of forced co7ownership in which the parties are prt7owners' .ach owner owns part of the wall but it cannot be separated from the other portions belonging to the others' An owner may use a party wall to the extent of the P portion on his property' =ot all common walls or walls in co7ownership are party walls' !A wall built on a co7owned lot is a common wall# not a party wall'" 3arty Wall /he shares of the co7owners cannot be physically segregated but they can be physically identified' =o such limitation Any owner may free himself from )o7ownership +hares of the co7owners can be di ided or separated physically' 6efore such di ision# a co7owner cannot point to any definite portion of the property as belonging to him' =one of the co7owners may use the community property for his exclusi e benefit 3artial renunciation is allowed
89
PROPERTY NOTES
contributing to the cost of repairs and construction of a party wall by renouncing all his rights thereto' Art& 0*7& The e/istence o" an easement o" #arty wall is #res,me$+ ,nless there is a title+ or e/terior sign+ or #roo" to the contrary% H1I In $i'i$ing walls o" a$!oining ,il$ings ,# to the #oint o" common ele'ation( H)I In $i'i$ing walls o" gar$ens or yar$s sit,ate$ in cities+ towns+ or in r,ral comm,nities( H.I In "ences+ walls an$ li'e he$ges $i'i$ing r,ral lan$s& H*2)I When is the existence of a party wall presumed? &' 4n di iding walls of adjoining buildings up to the point of common ele ation5 *' 4n di iding walls of gardens or yards situated in cities# towns# or in rural communities5 or -' 4n fences# walls and li e hedges di iding rural lands' /he legal presumption is juris tantum5 it may be rebutted by a title or exterior sign or any other proof showing that the entire wall in contro ersy belongs exclusi ely to one of the adjoining property owners'
one o" the estates( H4I <hene'er the $i'i$ing wall ears the ,r$en o" the in$ing eams+ "loors an$ roo" "rame o" one o" the ,il$ings+ ,t not those o" the others( H*I <hene'er the $i'i$ing wall etween co,rtyar$s+ gar$ens+ an$ tenements is constr,cte$ in s,ch a way that the co#ing she$s the water ,#on only one o" the estates( H0I <hene'er the $i'i$ing wall+ eing ,ilt o" masonry+ has ste##ing stones+ which at certain inter'als #ro!ect "rom the s,r"ace on one si$e only+ ,t not on the other( H2I <hene'er lan$s inclose$ y "ences or li'e he$ges a$!oin others which are not inclose$& In all these cases+ the ownershi# o" the walls+ "ences or he$ges shall e $eeme$ to elong e/cl,si'ely to the owner o" the #ro#erty or tenement which has in its "a'or the #res,m#tion ase$ on any one o" these signs& H*2.I .xterior signs rebutting presumption /his article mentions some exterior signs rebutting the presumption of a party wall' /he wall becomes the exclusi e property of the owner of the estate which has in its fa or the presumption based on any of the abo e exterior signs' /he enumeration is merely illustrati e# and is not exclusi e' /he exterior signs may contradict each other' 4n such case# the court shall decide the matter ta9ing into consideration all the circumstances' o 6ut in case of conflict between a title e idencing ownership to a wall and an exterior sign# the former must pre ail# for the latter merely gi es rise to an inference of ownership' Art& 001& 8itches or $rains o#ene$ etween two estates are also #res,me$ as common to oth+ i" there is no title or sign showing the contrary& There is a sign contrary to the #art1ownershi# whene'er the earth or $irt remo'e$ to o#en the $itch or to clean it is only on one si$e thereo"+ in which case the ownershi# o" the $itch shall elong e/cl,si'ely to the owner o" the lan$ ha'ing this e/terior sign in its "a'or& H*24I 6itches or drains between two estates !hehe" /he deposit of earth or debris on one side alone is an exterior sign that the owner of that side is the owner of the ditch or the drain'
)ase doctrine A wall separating two adjoining buildings# built on the land on which one of these buildings stands# is not a party wall when there is a drain along its top to carry away the water from the roof and ea es of the building belonging to the owner of the land on which the wall is erected5 and also when a part of the wall is co ered by the roof of the said building# the construction of which demonstrates that the wall belongs exclusi ely to the owner of the building of which it forms part' !:ao Eeirs of Alburo" Art& 009& It is ,n$erstoo$ that there is an e/terior sign+ contrary to the easement o" #arty wall% H1I <hene'er in the $i'i$ing wall o" ,il$ings there is a win$ow or o#ening( H)I <hene'er the $i'i$ing wall is+ on one si$e+ straight an$ #l,m on all its "acement+ an$ on the other+ it has similar con$itions on the ,##er #art+ ,t the lower #art slants or #ro!ects o,twar$( H.I <hene'er the entire wall is ,ilt within the o,n$aries o"
90
PROPERTY NOTES
Again# this is rebuttable'
Art& 00)& The cost o" re#airs an$ constr,ction o" #arty walls an$ the maintenance o" "ences+ li'e he$ges+ $itches+ an$ $rains owne$ in common+ shall e orne y all the owners o" the lan$s or tenements ha'ing the #arty wall in their "a'or+ in #ro#ortion to the right o" each& Ne'ertheless+ any owner may e/em#t himsel" "rom contri ,ting to this charge y reno,ncing his #art1ownershi#+ e/ce#t when the #arty wall s,##orts a ,il$ing elonging to him& H*2*I )ontribution to cost of repairs and construction of party walls /he part7owners of the party wall shall contribute to the cost in the proportion to their respecti e interests' o 6ut if the cause of the repairs is due to the fault of just one# then he alone shall bear the costs' Any owner may free himself from contributing to the charge by renouncing his rights in the party wall unless it actually supports his building' /he renunciation will include the land on which the party wall is constructed' Art& 00.& I" the owner o" a ,il$ing+ s,##orte$ y a #arty wall $esires to $emolish the ,il$ing+ he may also reno,nce his #art1ownershi# o" the wall+ ,t the cost o" all re#airs an$ wor- necessary to #re'ent any $amage which the $emolition may ca,se to the #arty wall+ on this occasion only+ shall e orne y him& H*20I Demolish that building> Demolish> An owner may also renounce his part ownership of a party wall if he desires to demolish his building supported by the wall' Ee shall bear all the expenses of repairs and wor9 necessary to pre ent any damage which the demolition may cause to the party wall' Art& 004& E'ery owner may increase the height o" the #arty wall+ $oing at his own e/#ense an$ #aying "or any $amage which may e ca,se$ y the wor-+ e'en tho,gh s,ch $amage e tem#orary& The e/#enses o" maintaining the wall in the #art newly raise$ or $ee#ene$ at its "o,n$ation shall also e #ai$ "or y him( an$+ in a$$ition+ the in$emnity "or the increase$ e/#enses which may e
necessary "or the #reser'ation o" the #arty wall y reason o" the greater height or $e#th which has een gi'en it& I" the #arty wall cannot ear the increase$ height+ the owner $esiring to raise it shall e o lige$ to reconstr,ct it at his own e/#ense an$+ i" "or this #,r#ose it e necessary to ma-e it thic-er+ he shall gi'e the s#ace re6,ire$ "rom his own lan$& H*22I Art& 00*& The other owners who ha'e not contri ,te$ in gi'ing increase$ height+ $e#th or thic-ness to the wall may+ ne'ertheless+ ac6,ire the right o" #art1ownershi# therein+ y #aying #ro#ortionally the 'al,e o" the wor- at the time o" the ac6,isition an$ o" the lan$ ,se$ "or its increase$ thic-ness& H*25aI 4ncrease the height of party wall> An owner is gi en the right to increase the height of a party wall subject to the following conditions8 &' Ee must do so at his own expense5 *' Ee must pay for any damage which may be caused thereby e en if damage is temporary5 -' Ee must bear the cost of maintaining the portion added5 and @' Ee must pay the increased cost of preser ation of the wall' Ee shall be obliged to reconstruct the wall at his expense if it is necessary so that the wall can bear the increased height# and if additional thic9ness is re%uired# he shall pro ide the space therefore from his own land' /he other owners cannot object to the wor9 as long as the abo e conditions are complied with' /he owner who ma9es the addition ac%uires ownership unless the other owners pay proportionately the alue of the wor9 at the time of the ac%uisition !not the construction" and of the land used for the walls increased thic9ness' Art& 000& E'ery #art1owner o" a #arty wall may ,se it in #ro#ortion to the right he may ha'e in the co1ownershi#+ witho,t inter"ering with the common an$ res#ecti'e ,ses y the other co1owners& H*27aI 3roportional use of party wall 4f /weet owns *L- of the party wall and 3lur9 owns &L-# /weet may use the wall !li9e inserting a beam" up to *L- of its thic9ness# and 3lur9 can do the same up to &L-'
91
PROPERTY NOTES
SE:TION 3IVE A EASEMENT O3 LI>;T AN8 VIE<

Art& 002& No #art1owner may+ witho,t the consent o" the others+ o#en thro,gh the #arty wall any win$ow or a#ert,re o" any -in$& H*59I WEA/ 4+ A= .A+.M.=/ ?C :4GE/?>?> .asement of light !jus luminum) is the right to admit light from the neighboring estate by irtue of the opening of a window or the ma9ing of certain openings' WEA/ 4+ A= .A+.M.=/ ?C F4.W?>?> .asement of iew !jus prospectus" is the right to ma9e openings or windows# to enjoy the iew through the estate of another and the power to pre ent all constructions or wor9s which would obstruct such iew or ma9e the same difficult' 4t necessarily includes the easement of light' Ma9ing of opening through a party wall A part7owner cannot exercise an act which implies full ownership of the wall by ma9ing use of all its thic9ness' $emember# a window in the di iding wall of buildings is an exterior sign which rebuts the presumption that the wall is a party wall' ?ne part7 owner may not# therefore# ma9e any window or opening of any 9ind thru a party wall without the consent of the others' Art& 005& The #erio$ o" #rescri#tion "or the ac6,isition o" an easement o" light an$ 'iew shall e co,nte$% H1I 3rom the time o" the o#ening o" the win$ow+ i" it is thro,gh a #arty wall( or H)I 3rom the time o" the "ormal #rohi ition ,#on the #ro#rietor o" the a$!oining lan$ or tenement+ i" the win$ow is thro,gh a wall on the $ominant estate& HnI 3rescripti e period for ac%uisition of easement of light and iew /he easement of light and iew is either positi e or negati e' When is it positi e? o 4t is considered positi e if made through a party wall or e en if made on ones own wall# if the window is on a balcony or projection extending o er the adjoining property' o When a window is opened through a party wall# an apparent
and continuous easement is created from the time of such opening' 6ut there is no true easement as long as the right to pre ent its use exists' o /he adjoining owner can order the window closed within &; years from the time of the opening of the window' When is it negati e? o 4t is considered negati e if the window is made through a wall on the dominant estate' o /he &;7year period of prescription commences from the time of the formal prohibition !instrument ac9nowledged by a notary public" upon the adjoining owner' o 6efore the expiration of the prescripti e period# the window exists by mere tolerance of the adjoining owner who always retains the right to ha e it closed or to build an obstruction# although the opening was made more than &; years after he decided to exercise his right' /he opening by QyGal was made in &KK; but he made a formal notarial demand prohibiting Meeyoo to obstruct the iew only in &KK@# Meeyoo may still demand the closure of the window in *;;&'
)ase doctrines When the construction of windows and balconies does not constitute an actual in asion of the rights of another# but is a lawful exercise of an inherent right# the easement of light and iew is negati e' !Cabie :ichauco" When a window is opened in a party wall# the express or implied consent of the part owner affords a basis for the ac%uisition of a prescripti e title' When a window is opened in the wall of a neighbor# prescription commences to run from the date of the opening of the windows and ripens into title when the specified time has elapsed without opoosition on the part of the owner of the wall' !)ortes Mu /ibo" Art& 007& <hen the $istances in Article 029 are not o ser'e$+ the owner o" a wall which is not #arty wall+ a$!oining a tenement or #iece o" lan$ elonging to another+ can ma-e in it o#enings to a$mit light at the height o" the ceiling !oints or imme$iately ,n$er the ceiling+ an$ o" the si4e o" thirty centimeters s6,are+ an$+ in e'ery case+ with an iron
92
PROPERTY NOTES
grating im e$$e$ in the wall an$ with a wire screen& Ne'ertheless+ the owner o" the tenement or #ro#erty a$!oining the wall in which the o#enings are ma$e can close them sho,l$ he ac6,ire #art1ownershi# thereo"+ i" there e no sti#,lation to the contrary& ;e can also o str,ct them y constr,cting a ,il$ing on his lan$ or y raising a wall thereon contig,o,s to that ha'ing s,ch o#enings+ ,nless an easement o" light has een ac6,ire$& H*51aI ?penings at height of ceiling joists to admit light When the wall is not a party wall# the owner may ma9e an opening for the purpose of admitting light and air# but not for iew' /he restrictions are the following8 &' /he siGe must not exceed -; cm s%uare5 *' /he opening must be at the height of the ceiling joists or immediately under the ceiling5 -' /here must be an iron grating imbedded in the wall5 and @' /here must be a wire screen' When the wall becomes a party wall# a part7owner can order the closure of the opening because no part7owner may ma9e an opening through a party wall without the consent of the others' 4t can also obstruct the opening unless an easement of light has been ac%uired by prescription# in which case the ser ient owner may not impair the easement' )ase doctrine 4f a house consists of more than one story# each story may ha e the same openings which are pro ided by law for one house' /he purpose of the law is to pro ide light to the rooms and it is e ident that the rooms of the lower stories ha e a much need for light as those of the top story' !)hoco +antamaria"" When the house has been built# with two meters of the di iding line !Art HI;"# no other windows than those pro ided in this article may be opened in its walls' !+aeG Cigueras" Art& 029& No win$ows+ a#ert,res+ alconies+ or other similar #ro!ections which a""or$ a $irect 'iew ,#on or towar$s an a$!oining lan$ or tenement can e ma$e+ witho,t lea'ing a $istance o" two meters etween the wall in which they are ma$e an$ s,ch contig,o,s #ro#erty& Neither can si$e or o li6,e 'iews ,#on or towar$s s,ch contermino,s #ro#erty e ha$+ ,nless there e a $istance o" si/ty
centimeters& The nono ser'ance o" these $istances $oes not gi'e rise to #rescri#tion& H*5)aI Art& 021& The $istance re"erre$ to in the #rece$ing article shall e meas,re$ in cases o" $irect 'iews "rom the o,ter line o" the wall when the o#enings $o not #ro!ect+ "rom the o,ter line o" the latter when they $o+ an$ in cases o" o li6,e 'iew "rom the $i'i$ing line etween the two #ro#erties& H*5.I Direct and obli%ue iews Article IH; re%uires a distance of8 o Cor direct iew# * meters o Cor obli%ue iew# H; cm Article IH& pro ides the manner of measuring the distance' o Cor direct iew 2 from the outer line of the wall when the openings do not project5 from the outer line of the openings when they do project o Cor obli%ue iew 2 from the di iding line An owner can build within the minimum distance or e en up to the di iding line pro ided no window is opened except as pro ided in Article HHK' When windows are opened# without obser ing the re%uired legal distances# the adjoining owner has a right to ha e them closed' /he non7obser ance of the distances does not gi e rise to prescription' o /he mere opening of the windows in iolation of Article II; does not gi e rise to the ser itude by prescription' o 4ts a negati e easement because the window is through a wall of the dominant estate and so prescription may still be ac%uired after &; years from the time of notarial prohibition' Art& 02)& The #ro'isions o" Article 029 are not a##lica le to ,il$ings se#arate$ y a #, lic way or alley+ which is not less than three meters wi$e+ s, !ect to s#ecial reg,lations an$ local or$inances& H*54aI Where buildings separated by a public way or alley /he distance in HI; is not compulsory where there is a public way or alley pro ided that it is not less than - meters wide' )ase doctrine
93
PROPERTY NOTES
A pri ate alley opened to the use of the general public falls within the pro ision of Article HI*'
Art& 02.& <hene'er y any title a right has een ac6,ire$ to ha'e $irect 'iews+ alconies or el'e$eres o'erloo-ing an a$!oining #ro#erty+ the owner o" the ser'ient estate cannot ,il$ thereon at less than a $istance o" three meters to e meas,re$ in the manner #ro'i$e$ in Article 021& Any sti#,lation #ermitting $istances less than those #rescri e$ in Article 029 is 'oi$& H*5*aI Where easement of direct iew has been ac%uired /he word 0title1 as used in Article HI- refers to any of the modes of ac%uiring easements !contract# will# donation or prescription"' Whene er the easement of direct iew has been ac%uired by such title# there is created a true easement# the owner of the ser ient estate cannot build thereon at less than a distance of - meters from the boundary line' /he distance may be increased or decreased by stipulation of the parties pro ided that in case of decrease# the minimum distance of * meters or H; cm in HI; must be obser ed' 4f not# then its oid'
its rain waters so as not to cause damage to his neighbors# e en if he be a co7owner of the latter' 4ts an exemption to Article H-I which obliges lower estates to recei e the waters which naturally flow from higher estates'
Art& 02*& The owner o" a tenement or a #iece o" lan$+ s, !ect to the easement o" recei'ing water "alling "rom roo"s+ may ,il$ in s,ch manner as to recei'e the water ,#on his own roo" or gi'e it another o,tlet in accor$ance with local or$inances or c,stoms+ an$ in s,ch a way as not to ca,se any n,isance or $amage whate'er to the $ominant estate& H*52I .asement to recei e falling rainwater /his article deals not with a legal or compulsory easement but with a oluntary easement to recei e rain water falling from the roof of an adjoining building' 4t is an application of Article H*K' Art& 020& <hene'er the yar$ or co,rt o" a ho,se is s,rro,n$e$ y other ho,ses+ an$ it is not #ossi le to gi'e an o,tlet thro,gh the ho,se itsel" to the rain water collecte$ thereon+ the esta lishment o" an easement o" $rainage can e $eman$e$+ gi'ing an o,tlet to the water at the #oint o" the contig,o,s lan$s or tenements where its egress may e easiest+ an$ esta lishing a con$,it "or the $rainage in s,ch manner as to ca,se the least $amage to the ser'ient estate+ a"ter #ayment o" the #ro#erty in$emnity& H*5.I .asement gi ing outlet to rainwater where house surrounded by other houses /he legal easement of drainage may be demanded subject to the following conditions8 &' /here must be no ade%uate outlet to the rainwater because the yard or court of a house is surrounded by other houses5 *' /he outlet to the water must be at the point where egress is easiest# and establishing a conduit for drainage5 and -' /here must be payment of proper indemnity'
SE:TION SIE A 8RAINA>E O3 =CIL8IN>S

Art& 024& The owner o" a ,il$ing shall e o lige$ to constr,ct its roo" or co'ering in s,ch manner that the rain water shall "all on his own lan$ or on a street or #, lic #lace+ an$ not on the lan$ o" his neigh or+ e'en tho,gh the a$!acent lan$ may elong to two or more #ersons+ one o" whom is the owner o" the roo"& E'en i" it sho,l$ "all on his own lan$+ the owner shall e o lige$ to collect the water in s,ch a way as not to ca,se $amage to the a$!acent lan$ or tenement& H*50aI What is an easement of drainage of buildings? .asement of drainage of buildings is the right to di ert or empty the rain waters from the ones own roof or shed to the neighbors estate either drop by drop or through conduits' $ainwater not to fall on land of another /his article does not really create a ser itude# it merely regulates the use of ones own property by imposing on him the obligation to collect
SE:TION 2& A INTERME8IATE 8ISTAN:ES AN8 <ORGS 3OR :ERTAIN :ONSTRC:TIONS AN8 PLANTIN>S
94
PROPERTY NOTES
Art& 022& No constr,ctions can e ,ilt or #lantings ma$e near "orti"ie$ #laces or "ortresses witho,t com#liance with the con$itions re6,ire$ in s#ecial laws+ or$inances+ an$ reg,lations relating thereto& H*57I )onstructions and plantings near fortified places /his article establishes an easement in fa or of the +tate' Art& 025& No #erson shall ,il$ any a6,e$,ct+ well+ sewer+ ",rnace+ "orge+ chimney+ sta le+ $e#ository o" corrosi'e s, stances+ machinery+ or "actory which y reason o" its nat,re or #ro$,cts is $angero,s or no/io,s+ witho,t o ser'ing the $istances #rescri e$ y the reg,lations an$ c,stoms o" the #lace+ an$ witho,t ma-ing the necessary #rotecti'e wor-s+ s, !ect+ in regar$ to the manner thereo"+ to the con$itions #rescri e$ y s,ch reg,lations& These #rohi itions cannot e altere$ or reno,nce$ y sti#,lation on the #art o" the a$!oining #ro#rietors& In the a sence o" reg,lations+ s,ch #reca,tions shall e ta-en as may e consi$ere$ necessary+ in or$er to a'oi$ any $amage to the neigh oring lan$s or tenements& H*79aI )onstruction of a%ueduct# well# sewer# etc )onstructions which by reason of their nature or products are dangerous or noxious must comply with the distances prescribed by local regulations and customs of the place' =ecessary protecti e wor9s must also be builtLdone by the owner to a oid damage to neighbors' /he prohibitions cannot be altered by stipulations because of the underlying public policy of safety' Whut up# ang layo mo na7 <o go go7 Art& 027& No trees shall e #lante$ near a tenement or #iece o" lan$ elonging to another e/ce#t at the $istance a,thori4e$ y the or$inances or c,stoms o" the #lace+ an$+ in the a sence thereo"+ at a $istance o" at least two meters "rom the $i'i$ing line o" the estates i" tall trees are #lante$ an$ at a $istance o" at least "i"ty centimeters i" shr, s or small trees are #lante$& E'ery lan$owner shall ha'e the right to $eman$ that trees herea"ter #lante$ at a shorter $istance "rom his lan$ or tenement e ,#roote$& The #ro'isions o" this article also a##ly to trees which ha'e grown s#ontaneo,sly& H*71aI 3lanting of trees !wow>"
/his article establishes a negati e easement' 4t pro ides the minimum distance of trees and shrubs from the boundary line' /hey shall be regulated first by local ordinances5 and then by the customs of the place5 and in default of both# this interesting article' 4n case of iolation# a landowner shall ha e the right to demand the uprooting of the tree or shrub e en if it has grown spontaneously'
Art& 059& I" the ranches o" any tree sho,l$ e/ten$ o'er a neigh oring estate+ tenement+ gar$en or yar$+ the owner o" the latter shall ha'e the right to $eman$ that they e c,t o"" inso"ar as they may s#rea$ o'er his #ro#erty+ an$+ i" it e the roots o" a neigh oring tree which sho,l$ #enetrate into the lan$ o" another+ the latter may c,t them o"" himsel" within his #ro#erty& H*7)I 4ntrusions of branches or roots into neighboring estates 4n case of branches# the adjoining owner must first demand that they be cut7off by the tree owner insofar as they spread o er the formers property' 4f the tree owner refuses# he may as9 authority from the court' As to the roots# he may cut them off himself if they penetrate into his land without the necessity of gi ing notice to the tree owner# because# by right of accession# he has ac%uired ownership o er them' 4t actually constitutes a direct in asion on his land !grabe naman'" Art& 051& 3r,its nat,rally "alling ,#on a$!acent lan$ elong to the owner o" sai$ lan$& HnI =ung mahulog yung mangga ni Jhunjhun sa lote 'o, a'in na ba yung mangga5 Mes' 6ut the falling must occur naturally' +o 4 ha e no right to pic9 fruits still on branches that extend o er my land' /his is not based on occupation nor accession# but by operation of law'
SE:TION 5& A EASEMENT A>AINST NCISAN:E

Art& 05)& E'ery ,il$ing or #iece o" lan$ is s, !ect to the easement which #rohi its the #ro#rietor or #ossessor "rom committing n,isance thro,gh noise+ !arring+ o""ensi'e o$or+ smo-e+ heat+ $,st+ water+ glare an$ other ca,ses&
95
PROPERTY NOTES
Art& 05.& S, !ect to 4oning+ health+ #olice an$ other laws an$ reg,lations+ "actories an$ sho#s may e maintaine$ #ro'i$e$ the least #ossi le annoyance is ca,se$ to the neigh orhoo$& /he )ode considers the easement against nuisance as negati e because the proprietor or possessor is prohibited to do something which he could lawfully do were it not for the existence of the easement' Eowe er# a nuisance in ol es any act of ormission which is unlawful' +o# these two articles are more of a restriction on the right of ownership than a true easement'
/he notice re%uired in Article HDI is mandatory except where there is actual 9nowledge of the proposed exca ation' /he adjacent owner is entitled to injuncti e relief and to damages for iolation of the pro isions'
:;APTER . VOLCNTARY EASEMENTS

Art& 055& E'ery owner o" a tenement or #iece o" lan$ may esta lish thereon the easements which he may $eem s,ita le+ an$ in the manner an$ "orm which he may $eem est+ #ro'i$e$ he $oes not contra'ene the laws+ #, lic #olicy or #, lic or$er& H*74I ?wner of land may constitute easement +ince easement in ol es an act of strict dominium# only the owner or at least one acting in his name and under his authority# may establish a oluntary easement' Eowe er# a beneficial owner may establish a temporary easement consistent with his right as such and subject to termination upon the extinguishment of the usufruct' Foluntary easements not contractual Foluntary easements are not contractual in nature# they constitute the act of the owner' Art& 057& The owner o" a tenement or #iece o" lan$+ the ,s,"r,ct o" which elongs to another+ may im#ose thereon+ witho,t the consent o" the ,s,"r,ct,ary+ any ser'it,$es which will not in!,re the right o" ,s,"r,ct& H*7*I Where property held in usufruct /he owner of property in usufruct may create easements thereon without the consent of the usufructuary pro ided the rights of the latter are not impaired' Art& 079& <hene'er the na-e$ ownershi# o" a tenement or #iece o" lan$ elongs to one #erson an$ the ene"icial ownershi# to another+ no #er#et,al 'ol,ntary easement may e esta lishe$ thereon witho,t the consent o" oth owners& H*70I
SE:TION 7& 1 Lateral an$ S, !acent S,##ort HnI Art& 054& No #ro#rietor shall ma-e s,ch e/ca'ations ,#on his lan$ as to $e#ri'e any a$!acent lan$ or ,il$ing o" s,""icient lateral or s, !acent s,##ort& Art& 05*& Any sti#,lation or testamentary #ro'ision allowing e/ca'ations that ca,se $anger to an a$!acent lan$ or ,il$ing shall e 'oi$& Art& 050& The legal easement o" lateral an$ s, !acent s,##ort is not only "or ,il$ings stan$ing at the time the e/ca'ations are ma$e ,t also "or constr,ctions that may e erecte$& Art& 052& Any #ro#rietor inten$ing to ma-e any e/ca'ation contem#late$ in the three #rece$ing articles shall noti"y all owners o" a$!acent lan$s& 3roprietor prohibited from ma9ing dangerous exca ations +upport is lateral when the supported and the supporting lands are di ided by a ertical plane' +upport is subjacent when the supported land is abo e and the supporting land is beneath it' An owner# by irtue of his surface right# may ma9e exca ations on his land# but his right is subject to the limitation in Article HD@ that he shall not depri e any adjacent land or building of sufficient lateral or subjacent support' Any stipulation or testamentary pro ision allowing exca ations that iolate Article HD@ is oid' /he limitation applies not only to existing buildings but also to future constructions'
96
PROPERTY NOTES
)reation of perpetual oluntary easement A usufructuary may impose on the estate held in usufruct a temporary easement' Where the na9ed ownership and the beneficial ownership of the estate belong to different persons# and the easement is perpetual !permanent right of way# etc"# the consent of both the na9ed owner and the beneficial owner is re%uired' Art& 071& In or$er to im#ose an easement on an ,n$i'i$e$ tenement+ or #iece o" lan$+ the consent o" all the co1owners shall e re6,ire$& The consent gi'en y some only+ m,st e hel$ in a eyance ,ntil the last one o" all the co1owners shall ha'e e/#resse$ his con"ormity& =,t the consent gi'en y one o" the co1owners se#arately "rom the others shall in$ the grantor an$ his s,ccessors not to #re'ent the e/ercise o" the right grante$& H*72aI 4mposition of easement on undi ided property /he creation of a oluntary easement on property owned in common re%uires the unanimous consent of all the co7owners# because it in ol es an act of alteration and not merely an alienation of an ideal share of a co7owner' /he consent may be gi en separately or successi ely' ?nce consent is gi en by a co7owner# the same is binding upon him and his successors unless his consent was itiated' After the consent of the last of all of the co7owners has been secured# it is not necessary for him to gi e again his consent' Art& 07)& The title an$+ in a #ro#er case+ the #ossession o" an easement ac6,ire$ y #rescri#tion shall $etermine the rights o" the $ominant estate an$ the o ligations o" the ser'ient estate& In $e"a,lt thereo"+ the easement shall e go'erne$ y s,ch #ro'isions o" this Title as are a##lica le thereto& H*75I $ules go erning oluntary easementsJano nga ba5 &' 4f created by title# such as contract# will# etc# then by such title5 *' 4f created by prescription# by the form and manner of possession of the easement !see Art H-*"5 and -' 4n default of the abo e# by the pro isions of the )i il )ode on easement'
Art& 07.& I" the owner o" the ser'ient estate sho,l$ ha'e o,n$ himsel"+ ,#on the esta lishment o" the easement+ to ear the cost o" the worre6,ire$ "or the ,se an$ #reser'ation thereo"+ he may "ree himsel" "rom this o ligation y reno,ncing his #ro#erty to the owner o" the $ominant estate& H*77I Where ser ient owner bound himself to bear cost of maintenance of easement /his article applies only where the owner of the ser ient estate bound himself to bear the cost of the wor9 re%uired for the use and preser ation of the easement Ee is bound to fulfill the obligation he has contracted in the same way that such an owner# should he ma9e use of the easement# is bound to contribute to the wor9s necessary for the use and preser ation of the ser itude' /he ser ient owner may free himself from his obligation by renouncing or abandoning his property to the dominant owner' o /he renunciation need not be o er the whole ser ient tenement# but only on the portion thereof affected by the easement !right o% way, etc"' howe er# if the easement affects the entire ser ient estate !li'e natural drainage"# then the renunciation must be total' o 4n any case# it cannot be tacit or implied5 it must follow the form re%uired by law for transmission of ownership of real property'
TITLE EI>;T NCISAN:E

Art& 074& A n,isance is any act+ omission+ esta lishment+ ,siness+ con$ition o" #ro#erty+ or anything else which% H1I In!,res or en$angers the health or sa"ety o" others( or H)I Annoys or o""en$s the senses( or H.I Shoc-s+ $e"ies or $isregar$s $ecency or morality( or H4I O str,cts or inter"eres with the "ree #assage o" any #, lic highway or street+ or any o$y o" water( or H*I ;in$ers or im#airs the ,se o" #ro#erty& What is the statutory definition of nuisance?
97
PROPERTY NOTES
=uisance is used to refer either to the harm caused or that which causes harm# or both =egligence is not an essential ingredient of a nuisance but to be liable for a nuisance# there must be resulting injury to another in the enjoyment of his legal rights' Anything which8 !4A+?E" &' 4njures or endangers the health or safety of others *' Annoys or offends the senses -' +hoc9s# defies or disregards decency or morality @' ?bstructs or interferes with the free passage of any public highway or street# or any body of water <' Einders or impairs the use of property'
4n fine# nuisance is wrongful in itself because of the injury caused regardless of the presence or absence of care# while negligence creates liability because of want of proper care resulting to anothers injury'
Distinguish nuisance from trespass =uisance consists of a use of ones own property in such a manner as to cause injury to the property or other right or interest of another# and generally results from the commission of an act beyond the limits of the property affected /respass is a direct infringement of anothers right of property Where there is no actual physical in asion of the plaintiffs property# the cause of action is for nuisance rather than trespass' An encroachment upon the space about anothers land but not upon the land itself is a nuisance# and not a trespass' 4n trespass# the injury is direct and immediate5 in nuisance# it is conse%uential' Distinguish nuisance from negligence =uisance 6asis of $egardless of the breach of duty degree of care or s9ill Fiolation of An absolute duty# the doing of an act which is wrongful in itself =egligence Want of care
)ase doctrines =oise becomes actionable only when it passes the limits of reasonable adjustment to the conditions of the locality and of the needs of the ma9er to the needs of the listener' 4njury to a particular person in a peculiar position will not render the noise an actionable nuisance 2 in the condition of present li ing# noise seems inseparable from the conduct of many necessary occupations' /he test to determine noise as nuisance is whether rights of property# health or comfort are so injuriously affected by the noise that the sufferer is subjected to a loss which goes beyond the reasonable limit imposed upon him by the condition of li ing' /he determining factor when noise alone is the cause of complaint is not its intensity or olume# but it is that the noise is of such character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities# rendering adjacent property less comfortable and aluable' !A) .nterprises Crabelle" A negligent or intentional act may constitute a nuisance' Where# after complaint and notice of damage# the defendant continues to offend and refuses to correct or discontinue the nuisance# it is intentional' Art& 07*& N,isance is either #, lic or #ri'ate& A #, lic n,isance a""ects a comm,nity or neigh orhoo$ or any consi$era le n,m er o" #ersons+ altho,gh the e/tent o" the annoyance+ $anger or $amage ,#on in$i'i$,als may e ,ne6,al& A #ri'ate n,isance is one that is not incl,$e$ in the "oregoing $e"inition& What is a public nuisance? A public nuisance has been defined as o the doing of or the failure to do something that injuriously affects safety# health or morals of the public# or o wor9s some substantial annoyance# incon enience# or injury to the public' What is a pri ate nuisance? A pri ate nuisance has been defined as one which iolates only pri ate rights and produces damage to but one or a few personas# and cannot
A relati e duty# the failure to use the degree of care re%uired under particular circumstances in connection with an act or omission which is not of itself wrongful Where the damage is the necessary conse%uence of what the defendant is doing# or is incident to the business itself or the manner in which it is conducted# the law of negligence has no application# and the law of nuisance applies'
98
PROPERTY NOTES
be said to be public' Affects $emedies 3ublic 3ublic at large# or such of them as may come in contact with it 4ndictable 3ri ate /he indi idual or a limited number of indi iduals only
4n terms of action
May be summarily abated under the undefined law of necessity
Actionable# either for their abatement or for damages# or both A nuisance may be both public and pri ate in character' Eence# there are mixed nuisances' 4t may iolate public rights to the injury of many# while producing special injury to pri ate rights to any extent beyond the injury to the public'
. en the municipal authorities# under their power to declare and abate nuisances# would not ha e the right to compel the abatement of a particular thing or act as a nuisance without reasonable notice to the person alleged to be maintaining or doing the same at the time and place of hearing before a tribunal whether such a thing constitutes a nuisance
What is a nuisance per se? ,uisance per se is an act# occupation# or structure which un%uestionably is a nuisance at all times and under any circumstances# regardless of location or surroundings' 4t is that which affects the immediate safety of persons and property' !/elmo 6ustamante" 4t is a nuisance of itself because of its inherent %ualities# producti e of injury or dangerous to life or property without regard to circumstance' .xample8 A house of prostitution' What is a nuisance per accidens? 4t is an act# occupation# or structure# not a nuisance per se# but which may become a nuisance by reason of circumstances# location# or surroundings' .xample8 raising of pigs in a house within city limits' 4n terms of proof =uisance per se /he thing becomes a nuisance as a matter of law 4ts existence need only be pro ed in any locatlity# without showing specific damages# and the right to relief is established by a erment and proof of the mere act' =uisance per accidens Depends upon its location and surroundings# the manner of its conduct or other circumstances' 3roof of the act and its conse%uences is necessary' 4t must be shown by e idence to be a nuisance under the law'
)ase doctrines /he operation of bus terminals is a legitimate business which# by itself# cannot be said to be injurious to the rights of property# health# or comfort of the community' (nless a thing is nuisance per se# it may not be abated ia an ordinance# without judicial proceedings' !:ucena AA) :iner" /he abatement of a nuisance without judicial proceedings is possible only if it is a nuisance per se' A gas station is not a nuisance per se or one affecting the immediate safety of persons and property' Eence# it cannot be closed down or transferred summarily to another location' !3arayno Ao ellanos" 4njury must not be merely percei ed# but must be factual' !3arayno" What is the doctrine of attracti e nuisance? ?ne who maintains on his premises dangerous instrumentalities or appliances of a character li9ely to attract children in play# and who fails to exercise ordinary care to pre ent children from playing therewith or resorting thereto# is liable to a child of tender years who is injured thereby# e en if the child is technically a trespasser in the premises' /he reason is that the condition or appliance in %uestion although its danger is apparent# is so enticing to children of tender years as to induce them to approach or use it' /he attracti eness is an implied in itation to such children .Q).3/4?=8 is not applicable to bodies of water# artificial or natural in the absence of some unusual condition or artificial feature other than the mere water and its location'
99
PROPERTY NOTES
o o o
A swimming pool is not a nuisance' A tan9 of water from an ice plant is not a nuisance as well' !Eidalgo case" What if Aollibee is in the middle of the swimming pool?> .xercise due diligence' :anggalin yung bubuyog na yan7
are extinguished by obstruction and non7use for ten years' !chec9 boo9#3<<D" Art& 077& The reme$ies against a #, lic n,isance are% H1I A #rosec,tion ,n$er the Penal :o$e or any local or$inance% or H)I A ci'il action( or H.I A atement+ witho,t !,$icial #rocee$ings& What are the remedies against a public nuisance? &' 3rosecution under the 3enal )ode or any local ordinance *' A ci il action -' Abatement# without judicial proceedings' /hese are not exclusi e but cumulati e' All of them may be a ailed of by public officers# and the last two# by pri ate persons# if the nuisance is especially injurious to the latter' Abatement without judicial proceedings /he summary abatement of nuisance without judicial proceedings is recogniGed and established e en in the absence of statute on the ground that the re%uirement of preliminary formal legal proceedings and a judicial trial would result in defeating the beneficial object sought to be obtained' 3olice power of the state includes the right to destroy or abate by a summary proceeding whate er may be regarded as a public nuisance# subject to constitutional limitations' 3roperty ta9en or destroyed for the purpose of abating a nuisance is not ta9en for public use# and there is accordingly no obligation to ma9e compensation for such ta9ing' Art& 299& The $istrict health o""icer shall ta-e care that one or all o" the reme$ies against a #, lic n,isance are a'aile$ o"& Art& 291& I" a ci'il action is ro,ght y reason o" the maintenance o" a #, lic n,isance+ s,ch action shall e commence$ y the city or m,nici#al mayor& Art& 29)& The $istrict health o""icer shall $etermine whether or not a atement+ witho,t !,$icial #rocee$ings+ is the est reme$y against a #, lic n,isance& What is the role of the district health officer and others with respect to public
Art& 070& E'ery s,ccessi'e owner or #ossessor o" #ro#erty who "ails or re",ses to a ate a n,isance in that #ro#erty starte$ y a "ormer owner or #ossessor is lia le there"or in the same manner as the one who create$ it& Generally# only the creator of a nuisance is liable for the damge resulting therefrom' Eowe er# since the injurious effect of a nuisance is a continuing one# e ery successi e owner or possessor of property constituting a nuisance who fails or refuses to abate it# has the same liability as the original owner' 6ut of course# the new owenr must ha e actual 9nowledge of the nuisance'
Art& 072& The a atement o" a n,isance $oes not #recl,$e the right o" any #erson in!,re$ to reco'er $amages "or its #ast e/istence& Are the remedies exclusi e? =o' /he action to abate nuisance and the action to reco er damages are distinct remedies either or both of which the plaintiff may pursue at his election' /he two remedies are concurrent and not exclusi e' /he owner of property abated as a nuisance is not entitled to compensation unless he can show that the abatement is unjustified' Art& 075& La#se o" time cannot legali4e any n,isance+ whether #, lic or #ri'ate& General rule8 /he right to bring an action to abate a public or pri ate nuisance is not extinguished by prescription' :apse of time cannot be relied upon to legaliGe a nuisance# whether public or pri ate' .xception8 +ee Art H-& !*" which expressly prescribes that easements
100
PROPERTY NOTES
nuisance? /he district health officer is charged with the duty to see to it that one or all of the remedies against a public nuisance are a ailed of' Article I;* does not empower the district health officer to abate a public nuisance to the exclusion of all other authorities' Eis power is simply to determine whether or not abatement# without judicial proceedings# is the best remedy against a public nuisance' /he action must be commenced by the city or municipal mayor' 6ut a pri ate person may also file an action if the public nuisance is especially injurious to him' Art& 29.& A #ri'ate #erson may "ile an action on acco,nt o" a #, lic n,isance+ i" it is s#ecially in!,rio,s to himsel"& Does a pri ate person ha e a right to file action on account of a public nuisance? )ertainly> A pri ate person may also file a ci il action if the public nuisance is especially injurious to himself' 4n other words# the nuisance becomes as to him a pri ate nuisance affecting him in a special way different from that sustained by the public in general' 4n the absence of a showing of special or unusual damages# differing from those suffered by the general public# a cause of action does not arise in fa or of a pri ate indi idual An action may be maintained by one who is not the sole or e en a peculiar sufferer# if his grie ance is not common to the whole public# but is a common misfortune of a number or e en a class of persons' Art& 294& Any #ri'ate #erson may a ate a #, lic n,isance which is s#ecially in!,rio,s to him y remo'ing+ or i" necessary+ y $estroying the thing which constit,tes the same+ witho,t committing a reach o" the #eace+ or $oing ,nnecessary in!,ry& =,t it is necessary% H1I That $eman$ e "irst ma$e ,#on the owner or #ossessor o" the #ro#erty to a ate the n,isance( H)I That s,ch $eman$ has een re!ecte$( H.I That the a atement e a##ro'e$ y the $istrict health o""icer an$ e/ec,te$ with the assistance o" the local #olice( an$ H4I That the 'al,e o" the $estr,ction $oes not e/cee$ three tho,san$ #esos&
What are the conditions for extrajudicial abatement of a public nuisance? /he party injured may remo e# and if necessary# destroy thing which constitutes the nuisance without committing a breach of the peace# or doing unnecessary damage' What should be done? &' Demand be first made upon the owner or possessor of the nuisance *' Demand must ha e been rejected -' Abatement be appro ed by the district health officer and executed with the assistance of the local police @' /he alue of the destruction does not exceed 3-;;;' Art& 29*& The reme$ies against a #ri'ate n,isance are% H1I A ci'il action( or H)I A atement+ witho,t !,$icial #rocee$ings& Art& 290& Any #erson in!,re$ y a #ri'ate n,isance may a ate it y remo'ing+ or i" necessary+ y $estroying the thing which constit,tes the n,isance+ witho,t committing a reach o" the #eace or $oing ,nnecessary in!,ry& ;owe'er+ it is in$is#ensa le that the #roce$,re "or e/tra!,$icial a atement o" a #, lic n,isance y a #ri'ate #erson e "ollowe$& What are the remedies against a pri ate nuisance? &' )i il action *' Abatement# without judicial proceedings' 4n abating a nuisance# a person may e en go to the extent of destroying the damn thing which constitutes the nusicance pro ided8 a' Ee commits no breach of the peace nor causes unnecessary injury# and b' /he procedure for extrajudicial abatement of public nuisance prescribed in I;@ is complied with
Art& 292& A #ri'ate #erson or a #, lic o""icial e/tra!,$icially a ating a n,isance shall e lia le "or $amages% H1I I" he ca,ses ,nnecessary in!,ry( or H)I I" an allege$ n,isance is later $eclare$ y the co,rts to e not a real n,isance& 4s there liability for damages in case of extrajudicial abatement?
101
PROPERTY NOTES
Meeeeeeees> A pri ate or public officer may be held liable for damages' /he two grounds of which are8 a' (nnecessary injury b' /he alleged nuisance is later declared by the courts to be not a real nuisance'
created or transmitted
transmitted
)ontracts only constitute titles or rights to the transfer or ac%uisition of ownership# while tradition or deli ery is the mode of accomplishing the same'
=OOG III 8I33ERENT MO8ES O3 A:FCIRIN> O<NERS;IP

PRELIMINARY PROVISION Art& 21)& Ownershi# is ac6,ire$ y occ,#ation an$ y intellect,al creation& Ownershi# an$ other real rights o'er #ro#erty are ac6,ire$ an$ transmitte$ y law+ y $onation+ y estate an$ intestate s,ccession+ an$ in conse6,ence o" certain contracts+ y tra$ition& They may also e ac6,ire$ y means o" #rescri#tion& H097aI What is mode? Mode is the specific cause which produces them as the result of the presence of a special condition of things# of the capacity and intention of persons# and of the fulfillment of the re%uisites established by law' What is title? /itle is the juridical act# right or condition which gi es the means to their ac%uisition but which in itself is insufficient to produce them' 4n a contract of sale# the contract is the title and tradition# as a conse%uence of sale# is the mode' +ometimes# the mode is at the same time the title !as in with succession" /itle +er es merely to gi e the occasion for its ac%uisition or existence /he means $emote cause /he means whereby that essence is
What are the different modes and titles of ac%uiring ownership and other real rights? !?:D/43+" &' ?riginal modes or those independent of any pre7existing right of another person# namely8 a' ?ccupation !condition of being without 9nown owner"5 and b' Wor9 which includes intellectual creation !creation# disco ery# or in ention" *' Deri ati e modes or those based on a pre7existing right held by another person# namely8 a' :aw !existence of re%uired conditions" b' Donation !contract of parties" c' +uccession# estate and intestate !death" d' /radition# as a conse%uence of certain contracts !contract of the parties"# and e' 3rescription !possession in the concept of owner" /he deri ati e modes are modes both for the ac%uisition and transmission of ownership and other real rights' /he transmission may in ol e a right in its entirety# or only a part thereof !pledge# mortgage# usufruct"' $egistration is not a mode of ac%uiring ownership# and other real rights but only a means of confirming the fact of their legal existence with notice to the world at large'
Mode Directly and immediately produces a real right /he cause 3roximate cause .ssence of the right which is to be
:aw as a mode of ac%uisition? When the )i il )ode spea9s of law as a mode of ac%uisition# it refers to it as a distinct mode or to those cases where the law# independent of the other modes# directly est ownership of a thing in a person once the prescribed conditions or re%uisites are present or complied with' .xamples8 &' Eidden treasure *' Art @@< -' $i er beds !Art @H&" @' Art @HH
102
PROPERTY NOTES
<' H' I'
Art HD& Art &@-@ Art &@<H
/radition as a mode of ac%uistion /radition is a deri ati e mode of ac%uiring ownership and other real rights by irtue of which# there being intention and capacity on the part of the grantor and grantee and the pre7existence of said rights in the estate of the grantor# they are transmitted to the grantee through a just title' !whut?" $e%uisites8 i' 3re7existence in the estate of the grantor of the right to be transmitted ii' Aust cause or title for the transmission iii' 4ntention on the part of the grantor to grant and on the part of the grantee to ac%uire i ' )apacity to transmit and to ac%uire ' An act which gi es it outward form# physically# symbolically or legally 3urpose8 non nudis pactis, sed traditione dominia rerum trans%eruntur3 ?wnership is transferred# among other means# by tradition' /he deli ery of a thing constitutes a necessary and indispensable re%uisite for the purpose of ac%uiring the ownership of the same by irtue of a contract' Ninds8 a' $eal tradition b' )onstructi e tradition i' +ymbolic ii' /radition by public instrument iii' /raditio longa manu i ' /radition bre i manu ' /radition constitutum possessorium c' ,uasi tradition d' /radition by operation of law What do you actually deli er? ?wnership# possession and control of the subject matter' What if the endor points to the endee a certain house which he already sold to the endee# but there are security guards roaming around the lot? =o tradition' !As9 Aaymie $eyes'"
)ase doctrines A stranger to the succession of a dead person cannot conclusi ely claim ownership o er the subject lot on the sole basis of the wai er document which neither recites the elements of either a sale# or a donation# or any other deri ati e mode of ac%uiring ownership' !Acap )A" An affida it not accompanied by any instrument showing the sale between a purported endor and endee is not a basis of ownership' !Eeirs of dela )ruG Eeirs of ,uintos" Cor lands of public domain# in order to ac%uire it by prescription# there must be a declaration of the +tate that its alienable and disposable and a positi e act that states that it is no longer needed for public use' ?nly at that point will the counting for prescription start' !Eeirs of Malabanan" TITLE ONE 1 O::CPATION Art& 21.& Things a##ro#ria le y nat,re which are witho,t an owner+ s,ch as animals that are the o !ect o" h,nting an$ "ishing+ hi$$en treas,re an$ a an$one$ mo'a les+ are ac6,ire$ y occ,#ation& H019I What is the concept of occupation? &' Defined as the appropriation of things appropriable by nature which are without an owner' *' /he seiGure of things corporeal which ha e no owner with the intention of ac%uiring the ownership thereof' What are the re%uisites of occupation? &' +eiGure of a thing *' Must be corporeal personal property -' Must be susceptible of appropriation by nature @' Must be without an owner <' Must be an intention to appropriate H' $e%uisites or conditions laid down by law must be complied with What constitutes seiGure? 4t is sufficient that there is an act of ta9ing possession# material holding not being essential as long as the possessor considers the thing as subjected to his control or disposition /he thing must be corporeal personal property without 9nown owner !res nullius" or abandoned by the owner' res communes are not appropriable by nature'
103
PROPERTY NOTES
/he must be an intent to ac%uire ownership# otherwise# the seiGure would not be appropriation in the legal sense# but mere material holding' 3ossession Merely raises the presumption of ownership when it is exercised in the concept of owner Any property May refer to property owned by somebody )oncept of mere holder May exist without occupation Generally of longer duration May lead to another mode# which is prescription
the reason is that when the land is without an owner# it pertains to the state' 6ut# what about abandoned pri ate land?
?ccupation Mode of ac%uiring ownership )orporeal personal property $e%uires that the object be without an owner $e%uires an intent to ac%uire ownership May not ta9e place without some form of possession +hort duration 6y itself# cannot lead to another mode of ac%uisition
Art& 21*& The right to h,nt an$ to "ish is reg,late$ y s#ecial laws& H011I Do 4 ha e a right to hunt and fish? =o' +trictly spea9ing# no one has a right to hunt or fish' /he pri ilege to hunt or fish# howe er# may be granted and regulated by law' Art& 210& The owner o" a swarm o" ees shall ha'e a right to #,rs,e them to anotherJs lan$+ in$emni"ying the #ossessor o" the latter "or the $amage& I" the owner has not #,rs,e$ the swarm+ or ceases to $o so within two consec,ti'e $ays+ the #ossessor o" the lan$ may occ,#y or retain the same& The owner o" $omesticate$ animals may also claim them within twenty $ays to e co,nte$ "rom their occ,#ation y another #erson& This #erio$ ha'ing e/#ire$+ they shall #ertain to him who has ca,ght an$ -e#t them& H01)aI /his article tal9s of domesticated# not domestic animals' With respect to domestic animals# he can claim them e en beyond twenty days from their occupation unless there is abandonment on his part' /his article does not apply to a case where a person has found a domestic animal and 9ept it for a number of years not 9nowing its owner' A domesticated animal which has not strayed or been abandoned cannot be ac%uired by occupation by a person to whose custody it was entrusted /he periods of two days and twenty days are not periods of limitation# but conditions precedent to reco ery'
What are the ways by which occupation may be effected? &' 6y hunting and fishing *' 6y finding of mo ables which ne er had any owner -' 6y finding of mo ables which ha e been abandoned by the owner# and @' 6y finding of hidden treasure What about wild animals? /hey are possessed only while they are under ones control' When is a thing abandoned# lost or ta9en by force? A thing is considered abandoned when the spes recuperandi !expectation to reco er" is gone and the animo revertendi !intention to ha e it returned" is finally gi en up by the owner' A thing has been lost or ta9en by force is not ipso %acto con erted into a res nullius so as to belong to the first person who ta9es possession of the same without the necessity of pro ing the mode of his ac%uisition and it may thus be reco ered by the original owner' Art& 214& The ownershi# o" a #iece o" lan$ cannot e ac6,ire$ y occ,#ation& HnI :and is not included among things that can be the object of occupation
Art& 212& Pigeons an$ "ish which "rom their res#ecti'e ree$ing #laces #ass to another #ertaining to a $i""erent owner shall elong to the latter+ #ro'i$e$ they ha'e not een entice$ y some article o" "ra,$& H01.aI /his article does not refer to wild pigeons and fish in a state of liberty or
104
PROPERTY NOTES
that li e naturally independent of man' /heir occupation is regulated by Art I&<' What is contemplated here are pigeons and fish considered as domesticated animals subject to the control of man in pri ate breeding places' /he pigeons and fish must change their breeding place to another belonging to a different owner' (nless enticed by some artifice or fraud# the shall belong to the owner of the breeding place to which they shall ha e transferred'
Art& 2)1& =y intellect,al creation+ the "ollowing #ersons ac6,ire ownershi#% H1I The a,thor with regar$ to his literary+ $ramatic+ historical+ legal+ #hiloso#hical+ scienti"ic or other wor-( H)I The com#oser( as to his m,sical com#osition( H.I The #ainter+ sc,l#tor+ or other artist+ with res#ect to the #ro$,ct o" his art( H4I The scientist or technologist or any other #erson with regar$ to his $isco'ery or in'ention& HnI Art& 2))& The a,thor an$ the com#oser+ mentione$ in Nos& 1 an$ ) o" the #rece$ing article+ shall ha'e the ownershi# o" their creations e'en e"ore the #, lication o" the same& Once their wor-s are #, lishe$+ their rights are go'erne$ y the :o#yright laws& The #ainter+ sc,l#tor or other artist shall ha'e $ominion o'er the #ro$,ct o" his art e'en e"ore it is co#yrighte$& The scientist or technologist has the ownershi# o" his $isco'ery or in'ention e'en e"ore it is #atente$& HnI Art& 2).& Letters an$ other #ri'ate comm,nications in writing are owne$ y the #erson to whom they are a$$resse$ an$ $eli'ere$+ ,t they cannot e #, lishe$ or $isseminate$ witho,t the consent o" the writer or his heirs& ;owe'er+ the co,rt may a,thori4e their #, lication or $issemination i" the #, lic goo$ or the interest o" !,stice so re6,ires& HnI Art& 2)4& S#ecial laws go'ern co#yright an$ #atent& H4)7aI
Art& 215& ;e who y chance $isco'ers hi$$en treas,re in anotherJs #ro#erty shall ha'e the right grante$ him in article 4.5 o" this :o$e& H014I Art& 217& <hoe'er "in$s a mo'a le+ which is not treas,re+ m,st ret,rn it to its #re'io,s #ossessor& I" the latter is ,n-nown+ the "in$er shall imme$iately $e#osit it with the mayor o" the city or m,nici#ality where the "in$ing has ta-en #lace& The "in$ing shall e #, licly anno,nce$ y the mayor "or two consec,ti'e wee-s in the way he $eems est& I" the mo'a le cannot e -e#t witho,t $eterioration+ or witho,t e/#enses which consi$era ly $iminish its 'al,e+ it shall e sol$ at #, lic a,ction eight $ays a"ter the #, lication& Si/ months "rom the #, lication ha'ing ela#se$ witho,t the owner ha'ing a##eare$+ the thing "o,n$+ or its 'al,e+ shall e awar$e$ to the "in$er& The "in$er an$ the owner shall e o lige$+ as the case may e+ to reim ,rse the e/#enses& H01*aI Art& 2)9& I" the owner sho,l$ a##ear in time+ he shall e o lige$ to #ay+ as a rewar$ to the "in$er+ one1tenth o" the s,m or o" the #rice o" the thing "o,n$& H010aI +ee codal for rules' Cairly simple' /his article is based on the fact that one who lost his property does not necessarily abandon it' 4f there is no abandonment# the lost thing has not become res nullius3 3aragraph @ contemplates implied abandonment'
Title III& 1 8ONATION :;APTER ONE NATCRE O3 8ONATIONS

Art& 2)*& 8onation is an act o" li erality where y a #erson $is#oses grat,ito,sly o" a thing or right in "a'or o" another+ who acce#ts it& H015aI )oncept of donation 4n its generic sense# the term donation includes all forms of gratuitous dispositions'
Title II& 1 INTELLE:TCAL :REATION
105
PROPERTY NOTES
/he donation the article spea9s of and which is go erned by /itle /hree is the donation proper or the true !or real" donation# or ordinary donation'
/he acceptance or consent of the donee is re%uired because no once can be obliged to recei e a benefit against his will'
What is the nature and effect of donation? Although Art I*< defines donation as an act# it is really a contract# with all the essential re%uisites of a contract' 4t falls under contracts of pure beneficence# the consideration being the mere liberality of the benefactor' /he )i il )ode considers donation not among the contracts that transfer ownership but as a particular mode of ac%uiring and transmitting ownership' As a mode of ac%uiring ownership# donation results in an effecti e transfer of title o er the property from the moment the donor is made aware of the acceptance by the donee# pro ided that the donee is not dis%ualified or prohibited by law from accepting the donation' ?nce accepted# it is generally considered irre ocable# and the donee becomes owner of property# except8 &' on account of officiousness# *' failure of the donee to comply with the charge imposed on the donation# -' or ingratitude' /he effect of donation is to reduce the patrimony or asset of the donor and to increase that of the donee' Eence# the gi ing of a mortgage or any other security does not constitute a donation' $e%uisites of donation &' Donor must ha e capacity to ma9e the donation of a thing or right *' Donati e intent !animus donandi" or intent to ma9e the donation out of liberality to benefit the donee -' /here must be deli ery# whether actual or constructi e @' Donee must accept or consent to the donation' 4n certain donations# the form prescribed by law must be followed !+ee Art I@D7I@K" /he subject matter of a donation may be a thing or right' A person may be a donee although he is incapacitated to enter into a contract if he is not specially dis%ualified by law to accept donations' =ot enough that the act is gratuitous# there must be an intent to benefit the donee'
)ase doctrines /he essential elements of donation are as follows8 o .ssential reduction of the patrimony of the donor o 4ncrease in the patrimony of the donee o /he intent to do an act of liberality or animus donandi !Eeirs of Clorencio Eeirs of de :eon" 4n order that the donation of an immo able property may be alid# the deed of donation must be made in a public document' /he acceptance must be in a public document as well' !Eeirs of Clorencio" $egistration of the deed in the ?ffice of the $D or in the Assessors ?ffice is not necessary for it to be considered alid and official' $egistration does not est title' /he necessity of registration comes into play only when the rights of third persons are affected' Curthermore# the heirs are bound by the deed of contracts executed by their predecessors7in7interest' !Eeirs of Clorencio" A %uitclaim is not a donation where those who executed the same merely ac9nowledged the ownership of and better right o er the lot by other persons' !Eeirs of $eyes )alumpang" Acceptance is necessary in a donation' /his applies to all 9inds of donations because the law does not ma9e any distinction' A donation mortis causa ta9es effect only after the death of the donor# conse%uently it is only after the latters death that its acceptance maybe made' !Fita Montanano" 3rudent thing to do when drafting deeds of donation8 3lace an acceptance clause' +o# if court considers it inter vivos# then it would ha e been accepted' 4f court considers it mortis causa# then the clause would be a mere superfluity# still open to the acceptance of the donee upon the death of the donor' !Atty Abrenica" /he purpose of the formal re%uirement for acceptance of a donation is to ensure that such acceptance is duly communicated to the donor' /he actual 9nowledge by the donor of the construction and existence of the school building pursuant to the condition of the donation fulfills the legal re%uirement that the acceptance of the donation by the donee be communicated to the donor' !$epublic +ilim" Art& 2)0& <hen a #erson gi'es to another a thing or right on acco,nt o" the latterJs merits or o" the ser'ices ren$ere$ y him to the $onor+
106
PROPERTY NOTES
#ro'i$e$ they $o not constit,te a $eman$a le $e t+ or when the gi"t im#oses ,#on the $onee a ,r$en which is less than the 'al,e o" the thing gi'en+ there is also a $onation& H017I What are the 9inds of donation? &' As to ta9ing effect8 a' 4nter i os or that which ta9es effect during the lifetime of the donor b' Moris causa or that which ta9es effect upon the death of the donor c' 3ropter nuptias or that by reason of marriage *' As to consideration a' 3ure or simple5 or that the cause of which is the pure liberality of the donor in consideration of the donees merits b' $emuneratory or compensatory5 or that which is gi en out of gratitude on account of the ser ices rendered by the donee to the donor# pro ided they do not constitute a demandable debt c' Modal or that which imposes upon the donee a burden !ser ices to be performed in the future" less than the alue of the gift d' ?nerous or that the alue of which is considered the e%ui alent of the consideration for which it is gi en# or that made for a aluable consideration# and is thus go erned by the rules on oblicon -' As to effecti ity or extinguishment a' 3ure b' )onditional c' With a term /ell me more about remuneratory donations 4n this 9ind of donation# the moti ating cause is gratitude# ac9nowledgment of a fa or# a desire to repay for past ser ices A donation gi en for future ser ices cannot be remuneratory 4t is necessary that the past ser ices do not constitute a demandable debt o A debt is demandable when it can be legally demanded or enforced by the donee against the donor who has thus an obligation to pay it' 6ut a debt that has been renounced is not a demandable debt'
What about gratuities and pensions? While technically a gratuity is different from a donation# in substance# they are the same' A gratuity is similar to a pension and is essentially remunerati e donation' /ell me more about modal donations 4n a modal donation# a burden !which is necessarily future" less than the alue of the gift is imposed upon the donee' 4f the burden is considered the e%ui alent of the thing or right gi en# then its an onerous donation' /he burden may consist in a real or personal charge which is capable of being alued in terms of money' What are donations with mixed features? +trictly spea9ing# remuneratory donations are those which are gi en on account of ser ices rendered by the donee to the donor' Modal donations are conditional only in the sense that a burden# charge# condition or limitation is imposed y the donor but the burden is not technically a condition in the sense of an uncertain e ent upon which the effectiti y or extinguishment of donation is made to depend for it is really a mere obligation imposed by the donor upon the donee as a consideration Actually# a modal donation has dual nature# it is partly onerous and partly simple 2 the portion e%ui alent to the burden is onerous and is go erned by the rules on obligations and contracts# while the portion exceeding the alue of the burdens imposed# is simple and must follow the form of donations' Earry donates to $on a parcel of land worth -;; galleons* but $on has to gi e another parcel of land or perform some ser ice worth &;; galleons# the transaction is onerous as the &;; galleons which must be in the form of a contract of barter or exchange# and simple as to the *;; galleons which must follow the form of donations' )ase doctrines
2
As of Auly *;;H# the galleon7dollar exchange rate was &8&H'I*' 4t hasnt gone below &8&< e er since' Wala lang# boring ng property eh' Earry 3otter na lang'
107
PROPERTY NOTES
An onerous donation is that which imposes upon the donee a reciprocal obligation# or to be precise# this is the 9ind of donation made for a aluable consideration# the cost of which is e%ual to or more than the thing donated' !)A Mulo $oman )atholic 6ishop of +an 3ablo" +ince onerous donations are go erned by the rules of contracts# the prescription period is &; years !based on a written contract"# and not the @7year period based on Article IH@ !re ocation must be brought within @ years from the non7compliance of the conditions of the donation"' !De :una Abrigo" $emuneratory donation is one where the donee gi es something to reward past or future ser ices or because of future charges or burdens# when the alue of said ser ices# burdens or charges is less than the alue of the donation' !De :una 7R this definition seems wrong as it includes future charges# which are necessarily modal"
Art& 2)7& <hen the $onor inten$s that the $onation shall ta-e e""ect $,ring the li"etime o" the $onor+ tho,gh the #ro#erty shall not e $eli'ere$ till a"ter the $onorJs $eath+ this shall e a $onation inter 'i'os& The "r,its o" the #ro#erty "rom the time o" the acce#tance o" the $onation+ shall #ertain to the $onee+ ,nless the $onor #ro'i$es otherwise& HnI 4nter i os /a9es effect during the lifetime of the donor# independently of his death# e en if the actual execution may be deferred until said death Made out of the donors pure generosity Falid if the donor sur i es the donee Must follow formalities of donations Accepted by the donee during his lifetime )annot be re o9ed except for grounds pro ided by law !+ee IH;# IH<" $ight to dispose of the property is completely con eyed to the donee +ubject to donors tax Mortis causa /a9es effect upon the death of the donor testator# so that nothing is con eyed to or ac%uired by the donee until said death Made in contemplation of his death without the intention to lose the thing or its free disposal in case of sur i al Foid should the donor sur i e the donee Must follow formalities for the alidity of a will# otherwise oid Accepted only after the donors death Always re ocable at any time and for any reason before the donors death !re ocable ad nutum 2 at the discretion of the grantor" $ight is retained by the donor while he is still ali e +ubject to estate tax
Art& 2)2& Illegal or im#ossi le con$itions in sim#le an$ rem,neratory $onations shall e consi$ere$ as not im#ose$& HnI Whats the effect of illegal or impossible conditions? (nder Article I*I# the illegal or impossible condition in a simple or remuneratory donation would be deemed not imposed following the rule on testamentary dispositions' /he donation will be considered as simiple' 4f the donation is onerous !or modal# as to its onerous portion"# the illegal or impossible condition shall render it oid' 6eing contractual in nature# the rule applicable would be that found in Article &&D- !chec9 codal# if di isible# only condition will be oid" )ase doctrine /he prohibition in the deed of donation against the alienation of the property for &;; years should be declared as an illegal or impossible condition within the contemplation of Article I*I' )onse%uently# such condition shall be considered as not imposed' =o reliance may accordingly be placed on said prohibitory paragraph in the deed of donation' !Archbishop of Manila )A" Art& 2)5& 8onations which are to ta-e e""ect ,#on the $eath o" the $onor #arta-e o" the nat,re o" testamentary #ro'isions+ an$ shall e go'erne$ y the r,les esta lishe$ in the Title on S,ccession& H0)9I
Designation gi en to donations not conclusi e Did the donor intend to transfer ownership of the property donated upon the execution of the donation? 4f yes# then it is inter vivos3 4f not# then# it is merely mortis causa' 0/o ta9e effect at the death of the creditor1 does not automatically ma9e it mortis causa' +uch statements must be construed with the rest of the instrument' Donations to be deli ered after the donors death
108
PROPERTY NOTES
A distinction must be made between the actual donation and the execution thereof /hat the donation is to ha e effect during the lifetime of the donor does not mean that the deli ery of the property must be made during his life' Article I*K spea9s of donations in praesenti which ta9e effect during the lifetime of the donor but the property shall be deli ered after the donors death' +uch are inter vivos although the subject matter is not deli ered at once# or the deli ery is to be made post mortem# which is a simple matter of form and does not change the nature of the act' /he fruits shall belong to the donee from the time of acceptance unless otherwise pro ided by the donor'
4nstances Why is it important to ma9e a distinction between inter vivos and mortis causa5 /he distinction between a transfer inter vivos and mortis causa is important as the alidity or re ocation of the donation depends upon its nature' 4f the donation is inter vivos# it must be executed and accepted with the formalities prescribed by Articles I@D and I@K# except when it is onerous in which case the rules on contracts apply' 4f it is mortis causa# the donation must be in the form of a will# with all the formalities for the alidity of wills# otherwise it is oid and cannot transfer ownership' Moreo er# mortis causa can be re o9ed any time before the death of the donor' !Ganuelas )awed" What clauses are found in a deed of donation? &' Eabendum or warranty clause !wherein grantor transfers ownership" *' $edendum or reser ation clause !wherein grantor reser es something new to himself" -' Acceptance clause )ase doctrines 4t is a settled rule that the title gi en to a deed of donation is not the determinati e factor which ma9es the donation inter vivos or mortis causa3 4n case of doubt# the con eyance should be deemed donation inter
vivos rather than mortis causa# in order to a oid uncertainty as to the ownership of the property subject of the deed' !3uig 3enaflorida 2 but see boo9 which cites the same case but says the opposite" Donations inter vivos are immediately operati e# e en if the actual execution may be deferred until the death of the donor' Mortis causa# nothing is con eyed to the grantee and nothing is ac%uired by the latter# until the death of the grantor7testator# the disposition being until then ambulatory and not final' !3uig" Acceptance clause is a mar9 that the donation is inter vivos' Acceptance is a re%uirement for donations inter vivos3 Donations moris causa are not re%uired to be accepted by the donees during the donors lifetime' !Gestopa )A" A limitation on the right to sell during the donors lifetime implied that ownership had passed to the donees and donation was already effecti e during the donors lifetime' !Gestopa" o $eiterated in Alejandro GeraldeG8 )ondtion that donees cannot sell during donors lifetime to a third person the donated property implies immediate passage of ownership and# therefore donation is inter vivos3 /he reser ation of lifetime usufruct indicates that the donor intended to transfer the na9ed ownership o er the properties# thus ma9ing it inter vivos' !Gestopa" Cactors in determining whether a donation is one of mortis causa8 &' 4t con eys no title or ownership to the transferee before the death of the transferor5 or what amounts to the same thing# that the transferor should retain the ownership !full or na9ed" and control of the property while ali e5 *' /he before his death# the transfer should be re ocable by the transferor at will# ad nutum5 but re ocability may be pro ided for indirectly by means of a reser ed power in the donor to dispose of the properties con eyed5 and -' /hat the transfer should be oid if the transferor should sur i e the transferee !Maglasang Eeirs of )oraGon )abatingan" ?ne of the decisi e characteristics of a donation mortis causa is that the transfer should be considered oid if the donor should sur i e the donee !Maglasang" Donations mortis causa must be executed in accordance with the re%uisites on solemnities of wills and testaments under Articles D;< and D;H of the )i il )ode
109
PROPERTY NOTES
Art& 2.9& The "i/ing o" an e'ent or the im#osition o" a s,s#ensi'e con$ition+ which may ta-e #lace eyon$ the nat,ral e/#ectation o" li"e o" the $onor+ $oes not $estroy the nat,re o" the act as a $onation inter 'i'os+ ,nless a contrary intention a##ears& HnI Donation inter vivos subject to suspensi e condition /his article contemplates a situtation where the donor intends the donation to ta9e effect during his lifetime but he imposes suspensi e condition which may or may not ta9e place beyond his lifetime' /he fact that the e ent happens or the condition is fulfilled after the donors death does not change the nature of the act as a donation inter vivos' /he effect of the fulfillment of the suspens ie condition is retroacti e to the ma9ing of the donation' .Q).3/4?=8 when the donor really intended that the donation should ta9e effect after his death' /hus# mortis causa' Art& 2.1& <hen a #erson $onates something+ s, !ect to the resol,tory con$ition o" the $onorJs s,r'i'al+ there is a $onation inter 'i'os& HnI Donation inter i os subject to a resolutory condition 4n these cases# the ownership of the donated property is immediately transferred to the donee upon perfection of the donation once acceptance by the donee is made 9nown to the donor' A donation subject to a resolutory condition ta9es effect immediately but shall become inefficacious upon the happening of the e ent which constitutes the condition' . en if the donation is subject to the resolutory condition of the donors sur i al# the donation is still inter vivos3 o 4 will donate this land to you# but if 4 sur i e World War 444# 4 will get it bac9' 4f 4 sur i e World War 444# the donation is rescinded' 4f 4 dont ma9e it# then it continues in effect' Art& 2.)& 8onations which are to ta-e e""ect inter 'i'os shall e go'erne$ y the general #ro'isions on contracts an$ o ligations in all that is not $etermine$ in this Title& H0)1I Art& 2..& 8onations with an onero,s ca,se shall e go'erne$ y the r,les on contracts an$ rem,neratory $onations y the #ro'isions o" the #resent Title as regar$s that #ortion which e/cee$s the 'al,e o" the
,r$en im#ose$& H0))I $ules go erning onerous donations or onerous portions of donations /his article ma9es the rules of contracts directly applicable to onerous donations and to remuneratory donations as to the onerous portion thereof ?nerous donations are donations for a aluable consideration' /hey include those purely onerous or those in which the consideration is considered the e%ui alent of the property donated and the modal but only as regards that portion thereof considered the e%ui alent of the alue of the burden imposed' $emuneratory donations are true or simple donations because the consideration is really the liberality of the donor since the ser ices rendered by the donee do not constitute a reco erable debt' Eowe er# the special rules on re ocation should not apply to the portion of the donation e%ui alent to the e%uitable alue of the ser ices recei ed by the donor' /he remuneratory donations referred to in Article I-- are the modal donations or those which impose 0upon the donee a burden which is less than the alue of the thing gi en1 as regards that portion which exceeds the alue of the burden# it shall be go erned by the pro isions on donations' /here is no burden imposed on remuneratory donations' 4f a burden is imposed# it becomes onerous as regards the alue of the burden' )ase doctrines As onerous donations are go erned by the rules on contracts# for there to warrant a re ocation of the donation# there must be a substantial breach of the conditions in the deed' Mere casual breaches will not warrant re ocations' !)A Mulo $) 6ishop" )onsidering that the donees acts did not detract from the ery purpose for which the donation was made but precisely to achie e such purpose !of the donation"# a lac9 of prior written consent of the donor !which was a condition of the donation" would only constitute casual breach of the deed' !)A Mulo" Art& 2.4& The $onation is #er"ecte$ "rom the moment the $onor -nows o" the acce#tance y the $onee& H0).I 3erfection of donation
110
PROPERTY NOTES
/here is no donation without acceptance by the donee' Acceptance is indispensable because nobody is obliged to recei e a benefit against his will' 4ts absence ma9es the donation null and oid' /he acceptance must be made during the lifetime of the donor and the donee' 3erfection ta9es place# not from the time of acceptance by the donee# but from the time it is made 9nown# actual or constructi ely# to the donor' 4f the donation and acceptance are in the same public instrument# signed by both and in the presence of witnesses# the donation is deemed already perfected inasmuch as 9nowledge of the acceptance is established by the instrument itself' 4f acceptance was made in a separate instrument# there must be proof that a formal notice of such acceptance was recei ed by the donor# and in case the donation in ol es immo able property# noted in both the deed of donation and the separate instrument embodying the acceptance' !+ee Art I@K"
re%uirement that the acceptance of the donation by the donee be communicated to the donor' !$epublic +ilim" :;APTER ) PERSONS <;O MAY >IVE OR RE:EIVE A 8ONATION Art& 2.*& All #ersons who may contract an$ $is#ose o" their #ro#erty may ma-e a $onation& H0)4I )apacity of donor to contract and dispose of property /he donor must ha e both the capacity to contract and the capacity to dispose of his property in order that he may ma9e a donation' /hose who cannot gi e consent to a contract cannot be donors5 and donation made by one who does not ha e the free disposal of the thing donated and to alienate it shall not be alid' 4t is possible# howe er# for a person to ha e capacity to contract but not the capacity to dispose of property' o (nder the Camily )ode# e ery donation between spouses during the marriage shall be oid except moderate gifts on the occasion of any family rejoicing' /he prohibition applies also to persons li ing together as husband and wife without a alid marriage# or in illicit relations' o =either spouse may donate any community property nor conjugal partnership property without the consent of the other# except moderate donations for charity or on occasion of family rejoicing or family distress' )an corporations ma9e donations? Mes' 6ut they cant gi e donations to aid any political party or candidate or for purposes of partisan political acti ity' Who are incapacitated to donate? &' Minors *' 4nsane or demented persons -' Deaf7mutes who do not 9now how to write @' )orporations !with regard to gi ing donations to aid any political party" <' Guardians and trustees !with regard to property entrusted to them" H' +pouses !to each other# except moderate gifts" I' A spouse !to others without the consent of the other spouse# except moderate donations"
What if there is re ocation? 4f the donor re o9es the donation before learning of the acceptance by the donee# there is no donation' 6ut once it is perfected# it cannot be re o9ed without the consent of the donee except8 &' 4nofficiousness !Art IH;" *' Cailure of the donee to comply with the charges imposed in the donation !Art IH@" -' 4ngratitude !Art IH<" 4s registration necessary? As between the parties to the donation and their assigns# it is not needed for its alidity and efficacy' !6ut it must be in a public document for immo ables>" 6ut for third parties to be bound# there must be registration' )ase doctrines /he purpose of the formal re%uirement for acceptance of a donation is to ensure that such acceptance is duly communicated to the donor' /he actual 9nowledge by the donor of the construction and existence of the school building pursuant to the condition of the donation fulfills the legal
111
PROPERTY NOTES
Art& 2.0& >,ar$ians an$ tr,stees cannot $onate the #ro#erty entr,ste$ to them& HnI Donation by a guardian or trustee of wards property Generally# guardians and trustees cannot be donors of their wards properties for the simple reason that they are not the owners of the same' .xception8 With respect to the trustee# donation is permitted notwithstanding that the trustee recei es nothing in exchange directly# if the donation is onerous and is beneficial to the beneficiary' Art& 2.2& The $onorJs ca#acity shall e $etermine$ as o" the time o" the ma-ing o" the $onation& HnI )apacity of donor at time of ma9ing the donation /he donation is perfected from the moment the donor 9nows of the acceptance by the donee' Eowe er# this article seems to imply that the donors capacity must exist at the time of ma9ing the donation and not from the time of 9nowledge by the donor of the acceptance# that is# at the perfection of the act A juridical absurdity arises in case the donor has no capacity to act at the time the acceptance is con eyed to him' +ince legally# the donor cannot be said to ha e 9nowledge of the acceptance# there can be no perfection of the donation which presupposes a meeting of the minds between the donor and the donee who are both capacitated' /o a oid the apparent contradiction# the phrase 0ma9ing of the donation1 should be construed to mean 0perfection of the donation1 Eence# the donation would be alid# although the donor was insane at the time he signs the deed of donation or informs the donee of the donation but sane when he learns of the acceptance' /he donor may as9 for annulment of the donation if he so desires /he subse%uent incapacity of the donor does not affect the alidity of the donation' /his is similar to the rule in succession' Art& 2.5& Al those who are not s#ecially $is6,ali"ie$ y law there"or may acce#t $onations& H0)*I )apacity of the donee
Generally# all persons# whether natural or artificial# may be donees' A donee need not be sui juris# with complete legal capacity to bind himself by contract' As long as he is 0not specially dis%ualified by law1# he may accept donations' +o# donations may be made to8 &' 4ncapacitated persons such as minors and others who cannot enter into a contract# *' and also to concei ed and unborn children'
Art& 2.7& The "ollowing $onations shall e 'oi$% H1I Those ma$e etween #ersons who were g,ilty o" a$,ltery or conc, inage at the time o" the $onation( H)I Those ma$e etween #ersons "o,n$ g,ilty o" the same criminal o""ense+ in consi$eration thereo"( H.I Those ma$e to a #, lic o""icer or his wi"e+ $escen$ants an$ ascen$ants+ y reason o" his o""ice& In the case re"erre$ to in No& 1+ the action "or $eclaration o" n,llity may e ro,ght y the s#o,se o" the $onor or $onee( an$ the g,ilt o" the $onor an$ $onee may e #ro'e$ y #re#on$erance o" e'i$ence in the same action& HnI Donations oid on moral grounds /his article declares null and oid ab initio the donations referred to' What are the different oid donations? &' 6etween persons who were guilty of adultery and concubinage at the time of the donation *' 6etween persons found guilty of the same criminal offense# in consideration thereof -' Made to a public officer or his wife# descendants and ascendants# by reason of his office @' 6etween spouses during the marriage# except moderate gifts which they may gi e each other on the occasion of any family rejoicing !Art DI# Camily )ode" <' Donations of community property by a spouse without the consent of the other# except moderate donations !Art KD# Camily )ode" H' Donations of conjugal partnership property by a spouse without the consent of the other# except moderate donations !Art &*<# Camily )ode" I' Donations to those pro ided for in Article I@;# in cross reference to
112
PROPERTY NOTES
D' K'
Art &;*I and &;-*' Donations accepted by agents without special authority to do so !Art I@<" Donations of immo ables which dont conform to the form prescribed in Art I@K
an unlawful cause' Donations made to a pubic officer# by reason of his office 4ndirect bribery> /he guilt need not be established by proof beyond reasonable doubt in a criminal proceeding for bribery' A ci il action to declare the donation oid may be maintained by the proper party in interest' Donations made to persons other than those mentioned are alid# unless# of course# they are intended for the public officer' Art& 249& Inca#acity to s,ccee$ y will shall e a##lica le to $onations inter 'i'os& HnI 4ncapacity to succeed by will /his article expressly ma9es the pro isions on incapacity to succeed by will applicable to donations inter vivos ?f course# they are also applicable to donations mortis causa which are go erned by the law on succession According to Art &;*I# the following are incapable of becoming donees8 &' /he priest who heard the confession of the donor during his last illness# or the minister of the gospel who extended spiritual aid to him during the same period *' /he relati es of such priest or minister of the gospel within the fourth degree# the church# order# chapter# community# organiGation# or institution to which such priest or minister may belong -' A guardian with respect to donations gi en by a ward in his fa or before the final accounts of the guardianship ha e been appro ed# e en if the donor should die after the appro al thereof5 ne ertheless# any pro ision made by the ward in fa or of the guardian when the latter is his ascendant# descendant# brother# sister# or spouse# shall be alid @' Any physician# surgeon# nurse# health officer or druggist who too9 care of the donor during his last illness <' 4ndi iduals# associations# and corporations not permitted by law to inherit' According to Art &;-*# there are certain people who are deemed incapable to inherit by reason of unworthiness' /he donation made to a person who falls under any of its pro isions is alid if the donor had 9nowledge of the act of unworthiness or ha ing 9nown it subse%uently#
Donations between persons guilty of adultery and concubinage /he ci il action for declaration of nullity may be brought after the persons in ol ed ha e been found guilty by final judgment in a criminal proceeding of adultery or concubinage' 4n iew of the last paragraph# con iction for adultery or concubinage in a criminal action is not essential' /he guilt of the donor and the donee may be pro ed by a mere preponderance of e idence in a ci il proceeding to nullify the donation# alleging the adultery or concubinage as the cause of action for the declaration of nullity' /he donation is oid# whether made before or after the illicit relations# if gi en in consideration thereof# either as inducement or compensation' What if the donation is gi en in contemplation of the termination of the relationship# is the donation still oid? o +ince the purpose is praiseworthy# good for all concerned# it should be considered alid' o /his is particularly true when the woman !donee" was a ictim of deceit by the man' o Eowe er# where the illicit relation was oluntary# and the donation was demanded by the woman as a price of the termination of their relationship# the donation is oid' What if the concubine did not 9now that the man she li ed with was actually married? o /hen she is not guilty of concubinage and not dis%ualified from the donation' Donations between persons found guilty of the same criminal offense /his rules presupposes prior criminal con iction in a criminal action5 hence proof of guilty by mere preponderance of e idence is not sufficient' /he donation here is remuneratory or onerous' 4t is oid whether made before or after the commission of the crime if it is in consideration thereof' 4t is still oid although the crime is not carried out because it is based on
113
PROPERTY NOTES
he should condone the same in writing' . en in the absence of pardon# the donation is not subject to re ocation because donations may be re o9ed only for causes mentioned in Articles IH;# IH@ and IH<' +o# who are these people? &' 3arents who ha e abandoned their children or induced their daughters to lead a corrupt or immoral life# or attempted against their irtue5 *' Any person who has been con icted of an attempt against the life of the testator# his or her spouse# descendants# or ascendants5 -' Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more# if the accusation has been found groundless5 @' Any heir of full age who# ha ing 9nowledge of the iolent death of the testator# should fail to report it to an officer of the law within a month# unless the authorities ha e already ta9en action5 this prohibition shall not apply to cases wherein# according to law# there is no obligation to ma9e an accusation5 <' Any person con icted of adultery or concubinage with the spouse of the testator5 H' Any person who by fraud# iolence# intimidation# or undue influence should cause the testator to ma9e a will or to change one already made5 I' Any person who by the same means pre ents another from ma9ing a will# or from re o9ing one already made# or who supplants# conceals# or alters the latterSs will5 D' Any person who falsifies or forges a supposed will of the decedent' Who are incapable of becoming donees? &' 3ersons guilty of concubinage or adultery at the time of donation !but only between them" *' 3ersons found guilty of the same criminal offense# in consideration thereof !but only between them" -' 3ublic officers# etc by reason of their office @' /hose mentioned in Art &;*I <' /hose mentioned in Art &;-* !unworthy people" Art& 241& Minors an$ others who cannot enter into a contract may ecome $onees ,t acce#tance shall e $one thro,gh their #arents or legal re#resentati'es& H0)0aI
?9# tell me more about donations to minors and others without capacity to contact Donation re%uires acceptance by the donee' 4f the donee is a minor or without capacity to enter into a contract# the acceptance must be made by the parents or legal representati e of the donee' /his is especially true if the donation is onerous or imposes a charge or burden' 4t is clear that the donee may not alidly accept a donation although it imposes no burden' 4n any case# when a formal or written acceptance is re%uired by the donor# such acceptance must be made by the parents or legal representati e' Art& 24)& 8onations ma$e to concei'e$ an$ ,n orn chil$ren may e acce#te$ y those #ersons who wo,l$ legally re#resent them i" they were alrea$y orn& H0)2I )an you donate to concei ed and unborn children? Mes> De :eon once again states the ob ious by saying# 0A concei ed and unborn child cannot accept a donation because it is not yet a natural person'1 /he acceptance must be made by those persons who would legally represent them if they were already born' Art& 24.& 8onations ma$e to inca#acitate$ #ersons shall e 'oi$+ tho,gh sim,late$ ,n$er the g,ise o" another contract or thro,gh a #erson who is inter#ose$& H0)5I Who are the incapacitated persons referred to here? /hey are those specially dis%ualified by law to become donees# such as those in Articles I-K and I@;' Donations to such persons are oid e en if simulated under the guise of another contract or through an intermediary' Art& 244& 8onations o" the same thing to two or more $i""erent $onees shall e go'erne$ y the #ro'isions concerning the sale o" the same thing to two or more $i""erent #ersons& HnI
114
PROPERTY NOTES
Donations of the same thing to different donees
perfected'
-
/his article expressly ma9es applicable by analogy the rules on sales of the same thing to two ore more different endees' Eowe er# this article has had its sure of criticism' +ee boo9'
Art& 24*& The $onee m,st acce#t the $onation #ersonally+ or thro,gh an a,thori4e$ #erson with a s#ecial #ower "or the #,r#ose+ or with a general an$ s,""icient #ower( otherwise+ the $onation shall e 'oi$& H0.9I Who must accept the donation? &' /he donee personally# or *' An authoriGed person or an agent# with a special power for the purpose# or with a general and sufficient power 4f not? /hen# the donation is oid' Does the parent o% a minor need a special power %or the purpose o% accepting a donation5 3robably not# a parent is not considered an agent of a minor' /hey are considered legal guardians' !6ut 4m not sure'" Art& 240& Acce#tance m,st e ma$e $,ring the li"etime o" the $onor an$ o" the $onee& HnI When should acceptance be made for inter vivos? A donation inter vivos ta9es effect during the lifetime of the donor and the donee# and to ta9e effect# it must be accepted by the donee' Eence# acceptance by the donee !or his representati e" must be made during his lifetime and that of the donor' . en if the donation is made during their lifetime# but the donor dies before the acceptance is communicated to him# the donation is not
3 0Art' &<@@' 4f the same thing should ha e been donated to different donees# the ownership shall be transferred to the person who may ha e first ta9en possession thereof in good faith# if it should be mo able property' +hould it be immo able property# the ownership shall belong to the person ac%uiring it who in good faith first recorded it in the $egistry of 3roperty' +hould there be no inscription# the ownership shall pertain to the person who in good faith was first in the possession5 and# in the absence thereof# to the person who presents the oldest title# pro ided there is good faith'1
Eow about for mortis causa5 Donations mortis causa are accepted only after the donors death because they parta9e of a will# and are go erned by the rules on succession' 4f the acceptance was made before the donors death# the donation mortis causa although alidly executed# cannot be gi en force and effect' +uch acceptance is oid' !6ut is the donation oid? )an there be a subse%uent acceptance after the death of the donor?" Art& 242& Persons who acce#t $onations in re#resentation o" others who may not $o so y themsel'es+ shall e o lige$ to ma-e the noti"ication an$ notation o" which Article 247 s#ea-s& H0.1I When does this article apply? &' When acceptance is made through the parents# legal representati e# or authoriGed agent of the donee5 *' /he property donated is immo able# and -' /he acceptance is not made in the same deed of donation but in a separate public instrument' /he re%uirement of notification of the donor and notation in both instruments that such notification has been made is necessary for the alidity and perfection of the donation'
Art& 245& The $onation o" a mo'a le may e ma$e orally or in writing& An oral $onation re6,ires the sim,ltaneo,s $eli'ery o" the thing or o" the $oc,ment re#resenting the right $onate$& I" the 'al,e o" the #ersonal #ro#erty $onate$ e/cee$s "i'e tho,san$ #esos+ the $onation an$ the acce#tance shall e ma$e in writing+ otherwise+ the $onation shall e 'oi$& H0.)aI What are the rules for the formalities for donations for mo ables? When the alue of property exceeds 3<;;;# the donation and the acceptance must always be made in writing5 otherwise the donation is oid# e en if there is simultaneous deli ery of the thing' o /he donation and the acceptance need not be made in a public instrument# nor is it necessary that the acceptance be made in the same deed of donation'
115
PROPERTY NOTES
When the alue of property is 3<;;; or less# it may be made orally or in writing' o 4f made orally# there must be simultaneous deli ery of the thing or of the document representing the right donated# otherwise# the donation is oid' /here must be acceptance which may be oral or written' /he receipt of the deli ery by the donee constitutes implied acceptance' o 4f made in writing# the donation is alid although there is no simultaneous deli ery' Again# there must be acceptance which may also be made orally or in writing' 4n e ery case# the acceptance of the donee must be made 9nown to the donor for perfection of a donation to ta9e place'
-' @' <' H'
/he acceptance by the donee must be in a public document 4t must be done during the lifetime of the donor /he donor must be notified in authentic form of the acceptance of the donation in a separate instrument5 and /he fact that such notification has been made must be noted in both instruments' o 6ut see the $ep +ilim case wherein the notification was not noted in the instrument# but still# the +) ruled that the donation was alid'
Art& 247& In or$er that the $onation o" an immo'a le may e 'ali$+ it m,st e ma$e in a #, lic $oc,ment+ s#eci"ying therein the #ro#erty $onate$ an$ the 'al,e o" the charges which the $onee m,st satis"y& The acce#tance may e ma$e in the same $ee$ o" $onation or in a se#arate #, lic $oc,ment+ ,t it shall not ta-e e""ect ,nless it is $one $,ring the li"etime o" the $onor& I" the acce#tance is ma$e in a se#arate instr,ment+ the $onor shall e noti"ie$ thereo" in an a,thentic "orm+ an$ this ste# shall e note$ in oth instr,ments& H0..I Cormalities for donation of immo ables /his article does not apply to onerous donations since they are go erned by the laws of obligations and contracts Donation of real property# which is a solemn contract# is oid without the formalities stated in Article I@K +o# what are the rules? When donation and acceptance are in the same instrument# the re%uirements are8 &' /he donation must be in a public document or instrument5 and *' /he instrument must specify the property donated and the charges# if any# which the donee must satisfy' When the donation and acceptance are in separate instruments# the re%uirements are8 &' /he donation must be in a public document or instrument5 *' /he instrument must specify the property donated and the charges# if any# which the donee must satisfy
/he donation of real property in a pri ate instrument is null and oid# and the donee may not compel the donor to execute a public instrument !&-<I" which applies only when the contract or donation is alid and enforceable' /he donation cannot be ratified' $egistration is not necessary for the donation to be considered alid and effecti e' Crom the time the public instrument of donation is simultaneously executed and ac9nowledged by the donor and the donee# the latter ac%uires the ownership of the donated property# since the execution of a public instrument of con eyance is one of the recogniGed ways in which tradition of immo able property may be made# unless the contrary is expressed or inferable from the terms of the deed' /itle to immo able property does not pass from the donor to the donee by irtue of donation until and unless it has been accepted in public instrument and the donor duly notified thereof' Where the donation is on its face absolute and unconditional# it is error to imply that the possession or usufruct is excluded from the donation or the donation is subject to any charge or burden' /he absence in the deed of any reser ation in fa or of the donor is proof that no such reser ation was e er intended considering that under the law# a donation of immo able by public instrument is re%uired to specify 0the alue of the charges1 that the donee must assume'
)ase doctrines /he best or primary e idence of a donation of real property is an authentic copy of the deed of donation with all the formalities re%uired by Article I@K' When a party wants to pro e the contents of a documents# the best e idence is the original writing itself' 3rior to the introduction of secondary e idence# a party must establish the existence and due execution of the instrument# after which he must
116
PROPERTY NOTES
pro e that the document was lost or destroyed' !D.)+ Del $osario" Where the deed of donation fails to show the acceptance# or where the formal notice of the acceptance# made in a separate instrument is not gi en to the donor or else not noted in the deed of donation and in the separate acceptance# the donation is null and oid' !+umipat 6anga"
:;APTER . E33E:T O3 8ONATIONS AN8 LIMITATIONS T;EREON

Art& 2*9& The $onations may com#rehen$ all the #resent #ro#erty o" the $onor+ or #art thereo"+ #ro'i$e$ he reser'es+ in ",ll ownershi# or in ,s,"r,ct+ s,""icient means "or the s,##ort o" himsel"+ an$ o" all relati'es who+ at the time o" the acce#tance o" the $onation+ are y law entitle$ to e s,##orte$ y the $onor& <itho,t s,ch reser'ation+ the $onation shall e re$,ce$ in #etition o" any #erson a""ecte$& H0.4aI $eser ation of sufficient means for support of donor and relati es A donor may donate all his present property or part thereof pro ided he reser es sufficient property in ownership or in usufruct for the support of himself and of all relati es who are entitled to be supported by him at the time of the perfection of the donation 3resent property means property which the donor can rightfully dispose of at the time of the donation' o /he share in an existing inheritance is present property although the heir has not yet entered into the possession of the same' /he donation of present property without the re%uired reser ation is not null and oid in its entirety5 it is only subject to reduction by the court on petition of the party prejudiced by the donation 2 the donor himself# any dependent relati e or creditor of the donor' /he limitation applies to simple# remunerati e and modal donations but not to onerous ones which are go erned by the law on obligations and contracts# nor to donations mortis causa for they ta9e effect only after the donors death' Donations propter nuptias cannot exceed more than one7fifth of the present property of the future spouses if in their marriage settlements executed before the marriage# they agree upon a regime other than the absolute community of property'@
Art' D*' Donations by reason of marriage are those which are made before its celebration# in consideration of the same# and in fa or of one or both of the future spouses' !&*H"
4
)ase doctrines When the dnor stated that she would continue to retain the 0possession# culti ation# har esting and all other rights and atrtributes of ownership1 she meant only dominium utile# not the full ownership' /he words 0rights and attributes of ownership1 should be construed ejusdem generis with the preceding rights of 0possession# culti ation and har esting1 expressly enumerated in the deed' !)ue as )ue as" Art& 2*1& 8onations cannot com#rehen$ ",t,re #ro#erty& =y ",t,re #ro#erty is ,n$erstoo$ anything which the $onor cannot $is#ose o" at the time o" the $onation& H0.*I Donation of future propertyJ 3$?E464/.D> Cuture property is anything which the donor cannot dispose of at the time of the donation' 4n other words# it is property that belongs to others at the time the donation is made and it is immaterial that it may subse%uently belong to the donor' =obody can dispose of that which does not belong to him' =emo emo' *uture inheritance cannot be donated because it is future property but upon the death of his predecessor# the inheritance ceases to be future and conse%uently# may be the object of donation e en if the properties constituting the inheritance ha e not yet been deli ered' 3roperty# the ac%uisition of which by the donor depends upon the fulfillment of a suspensi e condition# may be donated because# although the property may be as to him still 0future property1# the effects of the fulfillment of the condition shall retroact to the day of the constitution of the contract' Another reason is that the donor by desisting to ac%uire a future property donated would be re o9ing the donation contrary to the rule that donations inter vivos are irre ocable sa e for causes pro ided by
Art' D-' /hese donations are go erned by the rules on ordinary donations established in /itle 444 of 6oo9 444 of the )i il )ode# insofar as they are not modified by the following articles' !&*Ia" Art' D@' 4f the future spouses agree upon a regime other than the absolute community of property# they cannot donate to each other in their marriage settlements more than one7fifth of their present property' Any excess shall be considered oid' Donations of future property shall be go erned by the pro isions on testamentary succession and the formalities of wills' !&-;a" Art' D<' Donations by reason of marriage of property subject to encumbrances shall be alid' 4n case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured# the donee shall not be liable for the deficiency' 4f the property is sold for more than the total amount of said obligation# the donee shall be entitled to the excess' !&-&a"
117
PROPERTY NOTES
law' )ase doctrine A donor cannot lawfully con ey what is not his property' Where a parcel of land was the registered property of another# and the donee failed to show how her donor ac%uired it from the registered owner# it is held that the donor has no right# title or interest in said land which he could lawfully con ey' Art& 2*)& The #ro'isions o" Article 2*9 notwithstan$ing+ no #erson may gi'e or recei'e+ y way o" $onation+ more than he may gi'e or recei'e y will& The $onation shall e ino""icio,s in all that it may e/cee$ this limitation& H0.0I Amount of donation limited to what donor may gi e by will Article I<* ma9es applicable to donations the limitation on testamentary disposition with respect to the amount thereof' /he limitation is really on the right of the donor to gi e rather than on the right of the donee to recei e' A person may not donate more than he can gi e by will and a person may not recei e by way of donation more than what the donor is allowed by law to gi e by will5 otherwise# the donation shall be inofficious and shall be reduced with regard to the excess' /he limitation applies where the donor has forced or compulsory heirs' /he purpose is not to diminish the legitimes to which they are entitled' o 6ut the limitation is enforceable only after the death of the donor because it is only then when it can be determined whether or not the donation is inofficious5 by contrasting its alue with the net alue of the estate of the donor deceased' o /he donation is alid during the lifetime of the donor' Art& 2*.& <hen a $onation is ma$e to se'eral #ersons !ointly+ it is ,n$erstoo$ to e in e6,al shares+ an$ there shall e no right o" accretion among them+ ,nless the $onor has otherwise #ro'i$e$& The #rece$ing #aragra#h shall not e a##lica le to $onations ma$e to the h,s an$ an$ wi"e !ointly+ etween whom there shall e a right o" accretion+ i" the contrary has not een #ro'i$e$ y the $onor& H0.2I Donation to se eral donees jointly /he rules are as follows8 &' /he donation is understood to be in e%ual shares# unless the donor has pro ided otherwise' *' /here shall be no right of accretion among the donees# unless the donor has otherwise pro ided' -' 4f the donees are husband and wife# there shall be aright of accretion# if the contrary has not been pro ided by the donor' 4f there is no accretion among the donees# one cannot accept independently for his co7donee who is not present' Art& 2*4& The $onee is s, rogate$ to all the rights an$ actions which in case o" e'iction wo,l$ #ertain to the $onor& The latter+ on the other han$+ is not o lige$ to warrant the things $onate$+ sa'e when the $onation is onero,s+ in which case the $onor shall e lia le "or e'iction to the conc,rrence o" the ,r$en& The $onor shall also e lia le "or e'iction or hi$$en $e"ects in case o" a$ "aith on his #art& H0.5aI $ights and actions Eere are the rules8 &' /he donee is subrogated to all the rights and actions which in case of e iction would pertain to the donor *' 4f the donation is simple or remunerati e# the donor is not liable for e iction or hidden defects# becaue the donation is gratuitous5 -' . en if the donation is simple or remunerati e# the donor is liable for e iction or hidden defects in case of bad faith on his part !'nowingly donating a chic'en with avian %lu) or warranty is expressly stipulated5 and @' 4f the donation is onerous !modal donation# according to de :eon"# the donor is liable on his warranty but only to the extent of the burden' Art& 2**& The right to $is#ose o" some o" the things $onate$+ or o" some amo,nt which shall e a charge thereon+ may e reser'e$ y the $onor( ,t i" he sho,l$ $ie witho,t ha'ing ma$e ,se o" this right+ the #ro#erty or amo,nt reser'e$ shall elong to the $onee& H0.7I Donation with right of donor to dispose of part of object donated# reser ed' /he donor may reser e the right to dispose of some of the things or part
118
PROPERTY NOTES
of the thing donated or some amount or income thereof' /he donation is actually conditional# and the condition is fulfilled if the donor dies without exercising the right he reser ed# either by acts inter vivos or mortis causa3
nullity shall not in alidate the donation' /he re ersion which is merely an accessory clause is simply disregarded' Art& 2*5& <hen the $onation im#oses ,#on the $onee the o ligation to #ay the $e ts o" the $onor+ i" the cla,se $oes not contain any $eclaration to the contrary+ the "ormer is ,n$erstoo$ to e lia le to #ay only the $e ts which a##ear to ha'e een #re'io,sly contracte$& In no case shall the $onee e res#onsi le "or the $e ts e/cee$ing the 'al,e o" the #ro#erty $onate$+ ,nless a contrary intention clearly a##ears& H04)aI Art& 2*7& There eing no sti#,lation regar$ing the #ayment o" $e ts+ the $onee shall e res#onsi le there"or only when the $onation has een ma$e in "ra,$ o" cre$itors& The $onation is always #res,me$ to e in "ra,$ o" cre$itors+ when at the time thereo" the $onor $i$ not reser'e s,""icient #ro#erty to #ay his $e ts #rior to the $onation& H04.I :iability of donee to pay debts of donor Eere are the rules' &' Where donor imposes obligation upon the donee8 a' /he donee is liable to pay only debts pre iously contracted5 b' Ee is liable for subse%uent debts only when there is a stipulation to that effect5 and c' Ee is not liable for debts in excess of the alue of the donation recei ed# unless the contrary is intended' *' Where there is no stipulation regarding the payment of debts a' /he donee is generally not liable to pay the donors debts5 b' Ee is responsible therefore only if the donation has been made in fraud of creditors !which is always presumed when at the time of the donation the donor has not left sufficient assets to pay his debts" c' Ee is not liable beyond the alue of the donation recei ed' ?rdinarily# the donee should not be made liable to pay the donors debt beyond the alue of the thing donated' Donation in fraud of creditors 3resumed in fraud when at the time thereof the donor did not reser e sufficient property to pay his debts prior to the donation'
$on donates to Earry a house and an apartment with the pro ision that $on could sell the house and gi e the rents !or a portion" of the apartment for < years to Cran9' /he donation of the house with a reser ation of the right to dispose should be considered mortis causa# and therefore# must follow the formalities prescribed for ma9ing a will' /he donation of the apartment is inter vivos3 Art& 2*0& The ownershi# o" #ro#erty may also e $onate$ to one #erson an$ the ,s,"r,ct to another or others+ #ro'i$e$ all the $onees are li'ing at the time o" the $onation& H049aI =a9ed ownership and usufruct separately donated /he donor may donate separately the na9ed ownership !dominium directum" to one person and the usufruct !dominium utile" to another' /o be alid# the donee must be 0li ing at the time of the donation1# which is to be understood to refer to the time of the perfection of the donation' A donation to a child who was not yet concei ed at the time it was made is oid' 4f the property donated is immo able# the formalities for donations of real property must be complied with' Art& 2*2& Re'ersion may e 'ali$ly esta lishe$ in "a'or o" only the $onor "or any case an$ circ,mstances+ ,t not in "a'or o" other #ersons ,nless they are all li'ing at the time o" the $onation& Any re'ersion sti#,late$ y the $onor in "a'or o" a thir$ #erson in 'iolation o" what is #ro'i$e$ in the #rece$ing #aragra#h shall e 'oi$+ ,t shall not n,lli"y the $onation& H014aI Donation with pro ision for re ersion /he donor may pro ide for re ersion# whereby the property shall go bac9 to the donor or some other person' 4t may be alidly established for any case and circumstances' 4f the re ision is in fa or of other persons# they must be li ing at the time of the donation' /hus# a re ersion in fa or of an unconcei ed child is oid# but such
119
PROPERTY NOTES
/he creditors of the donor at the time of the donation may exercise the subsidiary right of rescission when they cannot in any manner collect the claims due them !accion pauliana) unless the property donated has passed into the hands of a third person in good faith for alue' 4n the latter case# the donee shall answer for damages if he acted in bad faith'
)ase doctrine $e%uisites for an accion pauliana8 &' )redit prior to alienation# e en if demandable later *' Debtor has made a subse%uent contract con eying a patrimonial benefit to a -rd person -' /he creditor has no legal remedy to satisfy his claim @' /he act being impugned is fraudulent <' /he third person who recei ed the property con eyed# if is by onerous title# has been an accomplice in the fraud' 6ut remember that accion pauliana is subsidiary'
Cailure of the donor to reser e sufficient means for support of himself or dependent relati es5 !I<;" b' Cailure of the donor to reser e sufficient property to pay off his existing debts !I<K"5 c' 4nofficiousness# that is# the donation exceeds that which the donor can gi e by will5 !I<*# II&" and d' 6irth# appearance# or adoption of a child' !IH;" A donation that has been duly perfected in accordance with law should stand until after its re ocation should ha e been as9ed and granted in the proper proceeding'
a'
:;APTER 4 REVO:ATION AN8 RE8C:TION O3 8ONATIONS

Art& 209& E'ery $onation inter 'i'os+ ma$e y a #erson ha'ing no chil$ren or $escen$ants+ legitimate or legitimate$ y s, se6,ent marriage+ or illegitimate+ may e re'o-e$ or re$,ce$ as #ro'i$e$ in the ne/t article+ y the ha##ening o" any o" these e'ents% H1I I" the $onor+ a"ter the $onation+ sho,l$ ha'e legitimate or legitimate$ or illegitimate chil$ren+ e'en tho,gh they e #osth,mo,s( H)I I" the chil$ o" the $onor+ whom the latter elie'e$ to e $ea$ when he ma$e the $onation+ sho,l$ t,rn o,t to e li'ing( H.I I" the $onor s, se6,ently a$o#t a minor chil$& H044aI Grounds for re ocation and reduction of donation &' $e ocation affects the whole donation and is allowed during the lifetime of the donor' /he grounds are8 a' 6irth# appearance# or adoption of a child !IH;"5 b' =on7fulfillment of a resolutory condition imposed by the donor !IH@"5 and c' 4ngratitude of the donee' !IH<" *' $eduction generally affects a portion only of the donation !unless the donee has no free portion left" and is allowed during the lifetime of the donor or after his death' /he grounds are8
6irth# appearance# or adoption of a child /his article applies to all donations inter vivos3 4t does not apply8 a' to donations mortis causa for they are re ocable at will by the donor !testator"5 b' to onerous donations for they are really contracts5 and c. to donations propter nuptias for they are re ocable only for the causes pro ided in the Camily )ode 2 see Art DH of the Cam )ode<' 4t is applicable when the donor# at the time he made the donation# did not ha e any child or descendant or erroneously thought so5 otherwise# Article II& in relation to Article I<* shall apply' . ery donation is subject to re ocation or reduction by the happening of any of the e ents mentioned which are in the nature of implied resolutory conditions' 6irth of a child Eere# the donor had no child whether legitimate# legitimated# or illegitimate at the time of the donation# and thereafter# a child was born e en if posthumous' What if the child was already concei ed but not yet born# what pro ision
5 Art' DH' A donation by reason of marriage may be re o9ed by the donor in the following cases8 !&" 4f the marriage is not celebrated or judicially declared oid ab initio except donations made in the marriage settlements# which shall be go erned by Article D&5 !*" When the marriage ta9es place without the consent of the parents or guardian# as re%uired by law5 !-" When the marriage is annulled# and the donee acted in bad faith5 !@" (pon legal separation# the donee being the guilty spouse5 !<" 4f it is with a resolutory condition and the condition is complied with5 !H" When the donee has committed an act of ingratitude as specified by the pro isions of the )i il )ode on donations in general' !&-*a"
120
PROPERTY NOTES
should apply# Article IH; or II&? o 4t depends' o 4f the donor was aware of such conception# Article II&' Eence# he cannot re o9e the donation upon the birth of the child' o 6ut# if he did not 9now of such conception when he made the donation# the situation is similar to the appearance of an absent child thought by the donor to be dead' Cor purposes of the law# he had no child' /he rule is that a concei ed child is considered born for all purposes fa orable to it' +ince to consider the child as already born would ma9e the donation irre ocable and would be unfa orable to it# the subse%uent birth of the child should re o9e or reduce the donation' Appearance of a child 4n this case# the donor had only one child whom he belie ed to ha e already died at the time of the donation' /he note says 0child1# so the subse%uent appearance of a descendant# li9e a grand9id# would not re o9e the donation o 6ut the donation may be reduced under Article II& as inofficious if it impairs the legitime of the descendant' Adoption of a child /he subse%uent adoption of a minor child is also a ground for the re ocation or reduction of a donation' 4ts an exception to the rule that a donation inter vivos shall be irre ocable by the donor' Again# the law says 0minor child15 hence the adoption of a person of majority age although it is allowed in certain cases is not a ground under =o' -' )ase doctrine $e ocation upon birth of a child and return of property to donor are not self7operati e or self7executory' /here is a need for judicial action' !?racion Auanillo" Art& 201& In the cases re"erre$ to in the #rece$ing article+ the $onation shall e re'o-e$ or re$,ce$ inso"ar as it e/cee$s the #ortion that may e "reely $is#ose$ o" y will+ ta-ing into acco,nt the whole estate o"
the $onor at the time o" the irth+ a##earance or a$o#tion o" a chil$& HnI .xtent and basis of re ocation or reduction #irth, appearance, or adoption o% a child3 A person may not gi e by way of donation more than he may gi e by will' /he amount subject to re ocation or reduction is# therefore# the excess o er the portion that may be freely disposed of by will' /he basis of re ocation or reduction is the alue of the whole estate of the donor at the time of the birth# appearance# or adoption of a child# and not at the time of the death of the donor as in the case of inofficious donations under Article II&' o /o the alue of the estate shall be added the alue of the donation at the time it was made because it would ha e been still part of the estate had not the donation been made' /he burden of proof is on the plaintiff7donor who must allege and establish the re%uirements prescribed by law' )n the case o% ino%%icious donations3 What is sought to be protected by Article IH; is only the prospecti e or presumpti e legitime of the child because that is the only portion which cannot be disposed of' 4f the donation does not exceed the free portion at the time of the birth# appearance# or adoption# there will be no re ocation or reduction but it may still be reduced under Article II& if it cannot be co ered by the free portion computed as of the time of the donors death' :et us suppose $on who was then childless# donated a property worth 3<; to .rin# a close 0friend'1 +ubse%uently# a child was born to $on whose estate at the time was 3-;' Eis total estate then including the alue of the property donated was 3D;' +ince the legitime of a legitimate child is P of the estate or 3@;# and therefore# the free portion is also 3@;# the donation must be reduced by 3&;' 6ut if the alue of the estate was 3I;# the donation is not re o9ed or reduced because it does not exceed the free portion of 3H; T!3I; + <;"L*U' Eowe er# should the estate of $on be less than 3<;# excluding the 3<; donation# at the time of his death !for example# 3@;"# it shall be subject to reduction to the extent that it is inofficious !i'e' 3<; 2 3@< T!3<;+3@;L*" V 3<;" under article II&' )ase doctrines
121
PROPERTY NOTES
Donor has the burden to allege and establish the re%uirements prescribed by law for which the annulment or reduction of the donation can be based' !)ruG )A"
Art& 20)& C#on the re'ocation or re$,ction o" the $onation y the irth+ a##earance or a$o#tion o" a chil$+ the #ro#erty a""ecte$ shall e ret,rne$ or its 'al,e i" the $onee has sol$ the same& I" the #ro#erty is mortgage$+ the $onor may re$eem the mortgage+ y #aying the amo,nt g,arantee$+ with a right to reco'er the same "rom the $onee& <hen the #ro#erty cannot e ret,rne$+ it shall e estimate$ at what it was worth at the time o" the $onation& H04*aI ?bligation of donee upon re ocation or reduction 4n case of re ocation or reduction under Article IH;# the obligation of the donee depends upon the situation of the property donated' o 4f the property affected is still in his possession# he must return the same' o 4f he has sold the property# he must gi e its alue' o 4f the property has been mortgaged by him# and the donor redeemed the mortgage# he must reimburse the donor' o 4f the property cannot be returned# as when it ahs been lost or destroyed# he must return its alue at the time of the perfection of the donation' 4t is presumed that the price at which the property is sold is its alue' o 4f the price is less than its actual alue# the donee is not liable for the difference absent proof of bad faith' o When the property cannot be returned# its alue shall be determined not as of the time of the loss but as of the time of the donation' Art& 20.& The action "or re'ocation or re$,ction on the gro,n$s set "orth in article 209 shall #rescri e a"ter "o,r years "rom the irth o" the "irst chil$+ or "rom his legitimation+ recognition or a$o#tion+ or "rom the !,$icial $eclaration o" "iliation+ or "rom the time in"ormation was recei'e$ regar$ing the e/istence o" the chil$ elie'e$ $ea$& This action cannot e reno,nce$+ an$ is transmitte$+ ,#on the $eath o" the $onor+ to his legitimate an$ illegitimate chil$ren an$ $escen$ants& H040aI
3rescription of action for re ocation or reduction /he donation is re o9ed ipso jure by operation of law# by the happening of any of the e ents mentioned in Article IH;' o Eence# it is not really essential that an action be brought to re o9e the donation' o 6(/# the re ocation is not self7operati e or self7executory' 4f the donee should refuse to comply with his obligation under Article IH*# resort to judicial action is necessary under Article IH-' 6ut since it is the law itself that declares the re ocation# the action is strictly not an action to re o9e but one to ha e the court expressly declare the re ocation which has already ta9en place by operation of law' /he period within which to bring the action is @ years' /he time to start counting depends upon the cause8 o 6irth of the first child5 o Crom time of legitimation# recognition or adoption5 or o Crom judicial declaration of filiation o Crom the time information was recei ed regarding the existence of the child belie ed dead' =ot from the actual appearance of the absent child' 4f the donor dies within the period# the action is transmitted to his legitimate and illegitimate children and descendants !not the spouse or ascendants of the donor"' 4n case more than one cause or ground for re ocation or reduction concur# the period of prescription must run from the earliest cause' $eduction of a donation upon the allegation of impairment of legitime is not controlled by a particular prescripti e period for which reason the period shall be go erned under the ordinary rules of prescription' (nder Article &&@@# the action must be brought within &; years from the time the right of action accrues# which is the death of the donor' /he action cannot be wai ed' !)ompare to the next article>" Art& 204& The $onation shall e re'o-e$ at the instance o" the $onor+ when the $onee "ails to com#ly with any o" the con$itions which the "ormer im#ose$ ,#on the latter& In this case+ the #ro#erty $onate$ shall e ret,rne$ to the $onor+ the alienations ma$e y the $onee an$ the mortgages im#ose$ thereon y him eing 'oi$+ with the limitations esta lishe$+ with regar$ to thir$ #ersons+ y the Mortgage Law an$ the Lan$ Registration Laws& This action shall #rescri e a"ter "o,r years "rom the noncom#liance with the con$ition+ may e transmitte$ to the heirs o"
122
PROPERTY NOTES
the $onor+ an$ may e e/ercise$ against the $oneeJs heirs& H042aI Cailure to comply with conditions A donation may be re o9ed in case of failure of the donee to comply with 0any of the conditions1 imposed by the donor upon him' /he word 0conditions1 actually refers to obligations# charges# or burdens imposed by the donor5 it may also refer to a resolutory condition' Eence# what is contemplated are onerous or modal donations' ?f course# it implies that there is an existing donation' /he condition must be fulfilled within the period fixed by the donor' o =o period? /he court shall determine such period as may ha e been contemplated by the donor' 4n case the donee fails to comply# the property donated re erts to the donor# along with the fruits of the property which the donee may ha e recei ed after ha ing failed to fulfill the condition' 4f the property has been alienated or mortgaged# the alienation or mortgage shall be oid +(6A.)/ to the rights of innocent third persons under registration laws who may ha e ta9en the property donated without notice of the condition imposed' !3ublic policy baby>" 4n case of non7fulfillment by the donee of any of the conditions imposed by the donor# the donation shall be re o9ed at the instance of the donor' o 6ut# the donor may instead file for an action of specific performance to compel the donee to comply with the conditions' /he action must be brought within @ years from the non7compliance with the condition 2 it can only be brought by the donor or his heirs against the donees heirs !compare to Articles IHK and II;"' /he death of the donor or the donee does not bar the action to re o9e for failure of the donee to comply with the conditions# pro ided the prescripti e period has not yet expired' (nli9e the action for re ocation or reduction under Article IH-# the action may be wai ed because the condition is purely contractual in nature' 4s court action necessary? 4n any case# a court action is necessary if the donee refuses to return the property or to comply with the conditions' /he deed of donation# howe er# may pro ide that iolation of any of its conditions shall cause the automatic rescission of the contract' 4n such
case# upon the iolation# the donation is automatically re o9ed# without need of a judicial declaration' o .xcept where the donee denies the donors right to rescind# in which case# judicial inter ention is necessary to determine whether or not the rescission is proper' 4n the absence of an agreement in the donation pro iding of an automatic rescission# a judicial declaration re o9ing said donation will be necessary'
)ase doctrines When land is donated on se eral express conditions# acceptance by the donee will be understood to include all of the conditions not umista9ably rejected' !6arreto Manila" When the donee has entered into possession of the property# effect will be gi en to the donation according to the terms of the offer and acceptance# although the formal deed has not been executed' !6arreto" 4f there is no fulfillment with the resolutory condition# the donation may now be re o9ed and all rights which the donee may ha e ac%uired under it shall be deemed lost and extinguished' !)entral 3hil (ni ersity )A" Article IH@ does not apply to onerous donations because onerous donations are go erned by the rules of )ontracts' Eence# the prescription period is &; years# not @ years' !De :una Abrigo" o While courts are gi en the power to fix the duration when the condition is to be fulfilled when none is gi en# if the facts show that a reasonable period has already been allowed the donee to a ail of the opportunity to comply with the condition# then the courts will no longer gi e the donee a period' !)entral 3hil (ni" o /he legal possibility of bringing the action begins with the expiration of a reasonable opportunity of the donee to fulfill what has been charged upon it by the donor' !+ec of .ducation Eeirs of Dulay" =othing in law prohibits parties from entering into an agreement that iolation of the terms of the contract would cause cancellation thereof e en without court inter ention' o 4n cases li9e these# judicial inter ention is necessary not for purposes of obtaining a judicial declaration rescinding a contract already deemed rescinded but in order to determine whether or not the rescission was proper' !De :una" When the deed of donation expressly pro ides for automatic rescission
123
PROPERTY NOTES
and re ersion of the property donated# the rules on contract and the general rules on prescription should apply# not IH@' !$oman )atholic Archbishop of Manila )A" o A donor cannot re o9e the donation on the grounds for non7 compliance of an impossible condition' !Archbishop of Manila )A" A declaration of petitoners absolute ownership appears legally possible only when the deed of donation is contextually declared peremptorily re o9ed' !Dolar 6arangay :ublub" /he act of selling property to a -rd party cannot be considered as a alid act of re ocation of the deed of donation for the reason that a formal case to re o9e the donation must be filed which spea9s of an action that has a prescripti e period of @ years from non7compliance with the condition' 4n this case# there was no pro ision of automatic rescission# thus placing the case within the ambit of Article IH@' !Austria7Magat )A" When the donation is onerous and does not fix a period to comply with the condition# the courts should fix a period to uphold the greatest reciprocity of rights' 4f it is gratuitous# then they should not# to uphold the least reciprocity of rights and interests' 4ts important to determine whether or not the donation is onerous or not so that we 9now what law to apply'
/he enumeration is exclusi e and cannot be enlarged' /he act of ingratitude must ha e been committed by the donee himself because the duty of gratitude is personal' An act imputable to the husband or wife or the hot mistress of the donee is not a ground for re ocation'
?ffense against the donor# etc )riminal con iction is not needed' 4t is sufficient that the offense be pro ed by mere preponderance of e idence in the action for re ocation' 4f the offense is committed against a child who is no longer under parental authority# the donation cannot be re o9ed' 4mputation to donor of any criminal offense# etc 4t is immaterial that the donee can pro e his accusation or substantiate his testimony against the donor' o /he exception is when the crime has been committed against the donee himself# his wife or children under his parental authority' o /he act in ol ing moral turpitude may not amount to a crime' $efusal to support the donor /here are two re%uisites8 &' /he refusal to support the donor must be undue# that is# without just reason5 and *' /he donee must be legally or morally bound to support the donor' =ote that ingratitude extends beyond failure to do a legal duty to support and includes a moral duty to help' !donee is a friend who is penniless and as9s for help# and the donor shuns her away li9e a scorned lo er'" )ase doctrine All crimes which offend the donor show ingratitude and are causes for re ocation' Any crime under the $e ised 3enal )ode is one in ol ing moral turpitude' !+pouses $omulo )A" Art& 200& Altho,gh the $onation is re'o-e$ on acco,nt o" ingratit,$e+ ne'ertheless+ the alienations an$ mortgages e""ecte$ e"ore the notation o" the com#laint "or re'ocation in the Registry o" Pro#erty shall s, sist& Later ones shall e 'oi$& H047I
Art& 20*& The $onation may also e re'o-e$ at the instance o" the $onor+ y reason o" ingratit,$e in the "ollowing cases% H1I I" the $onee sho,l$ commit some o""ense against the #erson+ the honor or the #ro#erty o" the $onor+ or o" his wi"e or chil$ren ,n$er his #arental a,thority( H)I I" the $onee im#,tes to the $onor any criminal o""ense+ or any act in'ol'ing moral t,r#it,$e+ e'en tho,gh he sho,l$ #ro'e it+ ,nless the crime or the act has een committe$ against the $onee himsel"+ his wi"e or chil$ren ,n$er his a,thority( H.I I" he ,n$,ly re",ses him s,##ort when the $onee is legally or morally o,n$ to gi'e s,##ort to the $onor& H045aI $e ocation by reason of ingratitude of the donee Article IH< does not apply to donations mortis causa and onerous donations' A donation propter nuptias may be re o9ed by the donor when the donee has committed an act of ingratitude as specified in Article IH<'
124
PROPERTY NOTES
Art& 202& In the case re"erre$ to in the "irst #aragra#h o" the #rece$ing article+ the $onor shall ha'e a right to $eman$ "rom the $onee the 'al,e o" #ro#erty alienate$ which he cannot reco'er "rom thir$ #ersons+ or the s,m "or which the same has een mortgage$& The 'al,e o" sai$ #ro#erty shall e "i/e$ as o" the time o" the $onation& H0*9I .ffect of re ocation on prior alienations and mortgages )% by non1compliance 4n case of re ocation of a donation by non7compliance by the donee with any of the conditions imposed# alienations and mortgages made by the donee are oid# subject only to the rights of innocent third persons' /he donor can reco er from the donee8 o ?nly the alue of the property donated at the time of the perfection of the donation# ?$ o /he sum for which it was mortgaged' $eco ery cannot be had against the third person unless he acted in bad faith as when had actual 9nowledge of the cause for re ocation or the filing of the action' )% by reason o% ingratitude 4f the re ocation is by reason of ingratitude# the alienations and mortgages made by the donee before the complaint for re ocation is annotated in the $egistry of 3roperty shall subsist or are alid' :ater alienations and mortgages shall be oid' /he donor can reco er the property from the transferee or mortgagee' /he donation of land by $on to .rin was made on Auly &;' .rin sold the land to /ara on Auly *;' /he act of ingratitude was done on Auly -;' /he complaint for re ocation was annotated on August &;' /hus# the sale to /ara is alid# and the remedy of $on is to reco er from .ric the alue of the land at the time of the donation' 4f the sale was made after August &;# the sale is oid and $on can reco er the land from /ara' 4f the act of ingratitude was committed on Auly *;# the sale on Auly -; and the complaint which was filed on Auly *< and was annotated on Auly -&# but at the time of the sale /ara was aware of the act of ingratitude committed by
.rin# or the pending action by $on# the sale should not be considered alid because /ara acted in bad faith# and so $on can reco er the land from her' Art& 205& <hen the $onation is re'o-e$ "or any o" the ca,ses state$ in Article 209+ or y reason o" ingratit,$e+ or when it is re$,ce$ eca,se it is ino""icio,s+ the $onee shall not ret,rn the "r,its e/ce#t "rom the "iling o" the com#laint& I" the re'ocation is ase$ ,#on noncom#liance with any o" the con$itions im#ose$ in the $onation+ the $onee shall ret,rn not only the #ro#erty ,t also the "r,its thereo" which he may ha'e recei'e$ a"ter ha'ing "aile$ to ",l"ill the con$ition& H0*1I $eturn by donee of the fruits of property donated /he rules depend upon the cause of re ocation or reduction o 4f the cause is8 the birth# appearance or adoption of a child# or ingratitude# or inofficiousness of the donation !because the donor did not reser e sufficient means for support"# or he donated more than he could gi e by will# then only the fruits accruing from the filing of the complaint need be returned' 4t can be implied that the donation remains alid up to the time of the filing of the complaint' 4f the cause is the non7fulfillment of any of the conditions imposed in the donation# the fruits must be returned from the time of the breach of the condition' /he donation shall also return the property donated' 4n case of inofficious donation which exceeds the free disposal by will# the donation ta9es effect during the lifetime of the donor# the donee appropriates the fruits# and the reduction may be as9ed only after the donors death' Art& 207& The action grante$ to the $onor y reason o" ingratit,$e cannot e reno,nce$ in a$'ance& This action #rescri es within one year+ to e co,nte$ "rom the time the $onor ha$ -nowle$ge o" the "act an$ it was #ossi le "or him to ring the action& H0*)I $enunciation and prescripti e period of action by reason of ingratitude /he action granted to the donor for re ocation by reason of ingratitude# li9e the action based on the birth# appearance# or adoption of a child
125
PROPERTY NOTES
cannot be renounced in ad ance' What the law prohibits is wai er# prior to the commission of the act of ingratitude' A past ingratitude can be the subject of a alid renunciation because the renunciation can be considered as an act of magnanimity on the part of the donor' /he action prescribesJ &' Within one year from the time the donor had 9nowledge of the act of ingratitude A=D *' 4t was possible for him to bring the action' /o bar the action# the donee must show proof that the one7year period has expired and it was possible for the donor to institute the said action within the same period'
Action against heirs of donee /he heirs of the donee are not held responsible for the acts of their predecessor7donee' /he act of ingratitude' !:he sins o% the %ather are not the sins o% the son> although, there are some instances where we repeat the mista'es o% our parents3 <eneral rule5 ;earn3) 6ut if the donor has already filed the complaint before the donees death# the suit may be continued against his heirs' Art& 221& 8onations which in accor$ance with the #ro'isions o" Article 2*)+ are ino""icio,s+ earing in min$ the estimate$ net 'al,e o" the $onorJs #ro#erty at the time o" his $eath+ shall e re$,ce$ with regar$ to the e/cess( ,t this re$,ction shall not #re'ent the $onations "rom ta-ing e""ect $,ring the li"e o" the $onor+ nor shall it ar the $onee "rom a##ro#riating the "r,its& 3or the re$,ction o" $onations the #ro'isions o" this :ha#ter an$ o" Articles 711 an$ 71) o" this :o$e shall go'ern& H0*4I $eduction of inofficious donations Donations which are inofficious because they are more than what the donor can gi e by will shall be reduced with regard to the excess upon the death of the donor# after determining the net alue of the estate' /hus# it follows that the donation is effecti e during the lifetime of the donor and so# the donee# as owner of the property donated also becomes owner of the fruits# although the donation should appear inofficious' Cor donations propter nuptias# they may be reduced for being inofficious' 6eing liberalities# they remain subject to reduction for inofficiousness upon the donors death# if they should infringe the legitime of a forced heir' /he action to reduce the inofficious donation must be brought within < years from the time of the donors death' Cor reduction of donations# the following articles# %uoted below shall go ern8 Art' K&&' After the legitime has been determined in accordance with the three preceding articles# the reduction shall be made as follows8 !&" Donations shall be respected as long as the legitime can be co ered# reducing or annulling# if necessary# the de ises or legacies made in the will5 !*" /he reduction of the de ises or legacies shall be pro rata# without any
Art& 229& This action shall not e transmitte$ to the heirs o" the $onor+ i" the latter $i$ not instit,te the same+ altho,gh he co,l$ ha'e $one so+ an$ e'en i" he sho,l$ $ie e"ore the e/#iration o" one year& Neither can this action e ro,ght against the heir o" the $onee+ ,nless ,#on the latterJs $eath the com#laint has een "ile$& H0*.I /ransmission of action for re ocation General rule8 /he action to re o9e a donation by reason of ingratitude is purely personal to the donor and cannot# as a rule# be transmitted to the heirs' /his is unli9e the action for re ocation based on the birth# appearance or adoption of a child and the action based on non7compliance with the condition of a donation' Eowe er# the particular circumstances of the case should be ta9en into account to determine whether it was possible to bring the action' Eence# the following exceptions wherein the heirs of the donors can as9 for the re ocation8 &' 4f the donee 9illed the donor# or *' 4f the donor dies without ha ing 9nown of the act of ingratitude# or -' 4f a criminal case against the donee was instituted by the donor# but the donor dies before he could bring the ci il action for re ocation5 or @' 4f the action for re ocation has already been filed by the donor before his death'
126
PROPERTY NOTES
distinction whate er' 4f the testator has directed that a certain de ise or legacy be paid in preference to others# it shall not suffer any reduction until the latter ha e been applied in full to the payment of the legitime' !-" 4f the de ise or legacy consists of a usufruct or life annuity# whose alue may be considered greater than that of the disposable portion# the compulsory heirs may choose between complying with the testamentary pro ision and deli ering to the de isee or legatee the part of the inheritance of which the testator could freely dispose' !D*;a" Art' K&*' 4f the de ise subject to reduction should consist of real property# which cannot be con eniently di ided# it shall go to the de isee if the reduction does not absorb one7half of its alue5 and in a contrary case# to the compulsory heirs5 but the former and the latter shall reimburse each other in cash for what respecti ely belongs to them' /he de isee who is entitled to a legitime may retain the entire property# pro ided its alue does not exceed that of the disposable portion and of the share pertaining to him as legitime' !D*&" Art& 22)& Only those who at the time o" the $onorJs $eath ha'e a right to the legitime an$ their heirs an$ s,ccessors in interest may as- "or the re$,ction or ino""icio,s $onations& Those re"erre$ to in the #rece$ing #aragra#h cannot reno,nce their right $,ring the li"etime o" the $onor+ either y e/#ress $eclaration+ or y consenting to the $onation& The $onees+ $e'isees an$ legatees+ who are not entitle$ to the legitime an$ the cre$itors o" the $ecease$ can neither as- "or the re$,ction nor a'ail themsel'es thereo"& H0**aI 3ersons entitled to as9 for reductionJ who are they? Cor the reduction of inofficious donations# &' those who at the time of the donors death ha e a right to the legitime# and *' their heirs# and -' succesors in interest' /he donor is not included# patay na siya eh3 /he inofficiousness can only be determined after his death' Who may not as9 for reduction? &' /he donees# or *' /he de isees# or -' /he legatees# who are not entitled to the legitime' @' )reditors of the deceased' !/he remedy of creditors is to file a claim
against the estate of the deceased# but not against the owners of the donated property'" $enunciation of right to as9 for reductionJ can it be done? /he right to as9 for the renunciation of inofficious donations cannot be renounced during the lifetime of the donor# ether by express declaration or by consenting to the donation' 22.& I"+ there eing two or more $onations+ the $is#osa le #ortion is not s,""icient to co'er all o" them+ those o" the more recent $ate shall e s,##resse$ or re$,ce$ with regar$ to the e/cess& H0*0I $eduction where there are two or more donations /he subse%uent donations shall first be reduced and only if they are not sufficient to co er the disposable portion should the earlier ones be reduced also with regard to the excess' 4f the two donations were perfected at the same time# the reduction should be proportionate unless otherwise pro ided by the donor' $ules on re ocationJ )EA$/.D> REVO:ATION+ ase$ onK /ime of action 6irth# appearance# or adoption of a child Within @ years from birth of first child# or Crom his legitimation# or Adoption# or Crom the judicial declaration of filiation# or Crom receipt or info regarding the existence of the child belie ed dead /ransmitted to children and =on7compliance with condition or conditions Within @ years from non7 compliance with the condition 6ut if its an onerous donation# within &; years from non7compliance with the condition May be transmitted to 4ngratitude
Within & year from the time the donor had 9nowledge of the fact of the ingratitude
/ransmissibility of action
Generally# the action is not
127
PROPERTY NOTES
descendants of the donor upon his death
the donors heirs and may be exercised against the donees heirs 3roperty donated shall be returned to the donor and the alienations and mortgages are oid subject to the rights of innocent -rd persons Donee shall return the fruits which he may ha e recei ed a%ter ha ing failed to fulfill the condition
.ffect of re ocation
:iability for fruits
3roperty affected shall be returned# or its alue if the donee has sold the same# or /he donor may redeem the mortgage on the property# with a right to reco er the property Donee shall return the fruits accruing from the filing of the complaint
transmitted to the heirs of the donor nor can the action be filed against the heirs of the donee 3roperty donated shall be returned but alienations and mortgage effected before the notation of the complaint for re ocation in the $egistry of 3roperty shall subsist +ame as in first column
during the lifetime of the donor
Within < years after the death of the donor !if propter nuptias# according to boo9"
/ransmissibilit y of action
.ffect of re ocation
=ot transmissibl e as the duty to gi e support and the right to recei e are personal in nature $educed to the extent necessary to pro ide support
$ules on reductionJ )EA$/.D> RE8C:TION+ ase$ onK Cailure of the donor to reser e sufficient means for support Any time by the donor or by the relati es entitled to support 4nofficiousnes s for being in excess of what the donor can gi e by will Within &; years !+antos Alana case# based on &&@@" 6irth# appearance # or adoption of a child +ame as in first column Craud against creditors
/ransmitted to the donors heirs as the donation shall be reduced as regards the excess at time of the donors death /a9es effect during the lifetime of the donor subject to reduction only upon his death with regard to the excess
+ame as in first column
years from the perfection of the donation# or at the latest# from the time the creditor had 9nowledge of the donation /ransmitte d to the creditors heirs or successors 7in7interest
+ame as in first column
/ime of action
/he action for rescission must be brought within @
:iability for fruits
Donee is entitled to the fruits as owner of the property donated
Donee appropriates the fruits as owner of the property
Donee# as owner# appropriate s the fruits of the property not
3roperty affected shall be returned by the donee for the benefit of the creditor subject to the rights of innocent third persons Cruits of the property affected shall also be
128
PROPERTY NOTES
affected by the reduction# but with regard to the excess# he shall be liable only for the fruits from the filing of the complaint
returned' 4n case the donee acted in bad faith and it should be impossible for him to return# then indemnify the donors creditor for damages'
6appy the man who %inds wisdom, the man who gains understanding711 (roverbs ?@2? :hus you may wal' in the way o% good men, and 'eep to the paths o% the just3 *or the upright will dwell in the land, the honest will remain in itA #ut the wic'ed will be cut o%% %rom the land, the %aithless will be rooted out o% it311 (roverbs 4@4B144
129

Property Reviewer Complete

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Property Reviewer Complete

Uploaded by

Copyright:

Available Formats

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

:;APTER T<O% MOVA=LE PROPERTY

+ Ad Majorem Dei Gloriam

<' H' I'

:;APTER T;REE% PROPERTY IN RELATION TO <;OM IT =ELON>S

+ Ad Majorem Dei Gloriam

@' <' H'

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

<' H' I'

Abutendi Disponendi Findicandi

TITLE II A O<NERS;IP :;APTER ONE% O<NERS;IP IN >ENERAL

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

All three actions are actions in personam'

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

example8 9ey of a house# bow of a iolin

+ Ad Majorem Dei Gloriam

The in$,strial "r,its( The ci'il "r,its&

humans (sually culti ated for a purpose

+ Ad Majorem Dei Gloriam

SE:TION II A RI>;T O3 A::ESSION <IT; RESPE:T TO IMMOVA=LE PROPERTY

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

planted or sown by paying indemnity plus damages

6ad Caith 6oth in good faith

/o buy land or to pay proper rent

+ Ad Majorem Dei Gloriam

land is considerably more than that of building or trees

Good Caith +ame

?ption *8 /o oblige 63 to buy the land or + to

/o buy the land or pay proper rent and liable

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

Eence# :aguna de 6ay is a la9e

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

SE:TION T;REE A RI>;T O3 A::ESSION <IT; RESPE:T TO MOVA=LE PROPERTY

+ Ad Majorem Dei Gloriam

6ut one of the component things preser es its alue

*' -' @'

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

Must pay indemnity and damages'

:;APTER T;REE% FCIETIN> O3 TITLE

Appropriate the same after indemnity for material' 6ad faith

+ Ad Majorem Dei Gloriam

An action to %uiet title includes an action to remo e a cloud of title'

+ Ad Majorem Dei Gloriam

:;APTER 3OCR% RCINOCS =CIL8IN>S AN TREES IN 8AN>ER O3 3ALLIN>

TITLE III A :O1O<NERS;IP

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

+ Ad Majorem Dei Gloriam

&' *' -' @'