PROPERTY

CIVIL LAW

Property
TABLE OF CONTENTS
I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. Classification Ownership Accession Quieting of Title Ruinous Buildings and Tress in Danger of Falling Co-Ownership Condominium Law (Act. No. 4726) Possession Usufruct Easements Legal Easements Voluntary Easements Nuisance Registry of Property Different Modes of Acquiring Ownership Prescription Tradition Lease Donation 36 41 42 48 49 49 55 57 63 65 70 77 78 80 80 81 82 83 89

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3. immovables by destination- (4) (5) (6) (9) and object to remain at a fixed place on a river, lake, or coast 4. immovables by analogy or by law(10) Art. 416. Personal Property (Movables): FLONTS (1)Those movables susceptible of appropriation Not included in the preceding article; (2)Real property which by law is considered as personal property; (3)Forces of nature which are brought under control by science; (4) all things which can be transported from place to place without impairment of the real property to which they are fixed. Machinery which is movable in nature only becomes immobilized when placed in a plant by the owner of a property or plant, NOT when placed by a tenant, usufructuary etc. unless acting as an agent of the owner. (Davao Sawmill v. Castillo, 1935) .a building is an immovable property, irrespective of whether or not said structure and the land on which it is adhered belong to the same owner. (Lopez v. Orosa) Since only personal properties could be the subject of a chattel mortgage, the execution and registration of the chattel mortgage and the foreclosure of the house are null and void. (Associated Insurance & Surety Co. v. Iya 1958 ) It is undeniable that parties to a contract may treat as personal property that which by nature would be real property; and for purposes of taxation, what is naturally personal property may be classed as real property. If the properties subject to the chattel mortgage are indeed not personal properties, the mortgage would be ineffective as against third parties, but this is for the courts to determine and not by the register of deeds. (Standard Oil vs. Jaramillo 1923) Re: building under chattel mortgage- separate treatment by the parties of a building from the land on which it stands does not change the immovable character. An inscription of a deed of sale of real property in the chattel mortgage registry cannot be given the legal effect of an inscription in the registry of real

PROPERTY
I. CLASSIFICATION
CLASSIFICATION as to mobility Art. 414 (1) Immovable or real property (2) Movable or personal property Art. 415. Immovables : MADAMS C FLAT 1. Land, buildings, roads, constructions adhered to soil; 2. Trees, plants, growing fruits-attached to land/form integral part of immovable 3. Everything attached to immovable in fixed manner-cannot be separated without breaking / deterioration 4. Statues, reliefs, paintings, objects for ornamentation in buildings / on lands a. by the owner of immovable b. manner reveals intention to attach permanently 5. Machinery, receptacles, instruments, implements intended by owner for an industry; works which may be carried on in building or on a piece of land, and tend directly to meet the needs of industry or works 6. (6) Animal houses, pigeonhouses, beehives, fish ponds, breeding places in case owner placed / preserves them with intention to be permanently attached to land, AND form permanent part of it --animals are included 7. Fertilizer actually used on a piece of land 8. Mines, quarries, slag dumps, while matter their matter forms part of the bed, and waters running or stagnant 9. Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast; 10. Contracts for public works, and servitudes and other real rights over immovable property. Classification: 1. immovables by nature - (1) and (8) 2. immovables by incorporation- (2) (3) (7)

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property. (Leung Yee v. Strong Machinery, 1981) Where chattel mortgage is constituted on machinery permanently attached to the ground, machinery is personal property and mortgage is not null and void, regardless of who owns the land. It is undeniable that the parties to a contract may by agreement treat as personal property that which by its nature would be real property, as long as no interest of third parties may be prejudiced thereby. (Makati Leasing and Finance Corp v. Wearever Textile Mills 1983) mode and title. (5) Extinguished by the loss or destruction of the thing. (6) Gives rise to real actions against 3rd persons

CIVIL LAW
alone. (5) Not extinguished by the loss or destruction of the thing. (6) Produces only personal actions against definite debtor.

Classification of Movables (a) Consumables includes those movables which cannot be used in a manner appropriate to their nature without their being consumed (b) Non-consumable- includes all others Classification Ownership According to

Differences between Real Rights and Personal Rights Kinds of rights considered as property (a) Real (jus in re)power belonging to a person over a specific thing. It gives direct and immediate juridical power over a thing susceptible of being exercised against a determinate person and the whole world. (b) Right of obligation or Personal (jus ad rem)rights belonging to one person to demand of another as a definite passive subject, the fulfillment of a prestation to give, to do, or not to do. Real rights arises (OPLUMEPARP) 1. Ownership 2. Possession 3. Lease 4. Usufruct 5. Mortgage 6. Easement 7. Pledge 8. Antichresis 9. Redemption 10. Preemption Real Rights (1) One definite active subject and the rest of the world as passive (2) Object is a corporeal thing. (3) Real right affects the thing directly. from

a) Public Dominion 420 i. intended for public use ii. intended for public service of state, provinces, cities & municipalities Characteristics: i. outside the commerce of men ii. cannot be acquired through prescription iii. not subject to attachment & execution iv. cannot be burdened by voluntary easement * Art. 424. Property for public use, in the provinces, cities, and municipalities, consist of: (RSS FW P3) Roads, Streets, Squares, Fountains, Public Waters, Promenades, Public Works for public service paid for by the local government All other property possessed by any of them is patrimonial. b) Private Ownership 421 i. patrimonial property of state, provinces, cities, municipalities -exist for attaining economic ends of state -property of public dominion when no longer intended for public use/service declared patrimonial ii. property belonging to private persons individually or collectively

(4) The creation of the juridical relation is by

Personal Rights (1) There is a definite active and passive object. (2) Object is an intangible thing. (3) Personal affects the thing directly through the prestation of the debtor. (4) Creation of the juridical title is by title

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Cases Churches and other consecrated objects are outside the commerce of man (Barlin vs. Ramirez, 1907) Reclaimed land is public property. In case of gradual erosion by the ebb and flow of the tide, private property may become property of the public domain, where it appears that the owner abandoned it or permitted it to be destroyed. When they stay in that condition until reclaimed by filling in done by the government, they continue to be government property after reclaiming. Immediate possession by the former owner does not confer on him ownership of the lots, because, as they were converted into property of the public domain, no private person could acquire title except in the form and manner established by law. (Government of the Philippine Islands v. Cabangis)

CIVIL LAW
The sale to private parties of a public road which has been validly closed by the city government is valid. Basis : Art 422 CC (Cebu Oxygen and Acetylene v. Bercilles, 1975) The attachment of the municipal trucks, police cars, police station and market stalls is void because the properties levied upon are exempt from execution. Property for public use of the municipality is not within the commerce of man so long as it is used by the public. (Vda. De Tantoco vs. Municipal Council of Iloilo) Under the law on Municipal Corporations, however, to be considered public property, it is enough that property be held and devoted for governmental purposes. (Province of Zamboanga del Norte v. City of Zamboanga, 1967)

ACTIONS FOR THE RECOVERY OF IMMOVABLE PROPERTY

FORCIBLE ENTRY OR UNLAWFUL DETAINER FORCIBLE ENTRY UNLAWFUL ENTRY Possession unlawful from time of entry. Prior physical possession is INDISPENSABLE. Decision here is res judicata only as to possession. PRESCRIPTIVE PERIOD 1 year period starts from last demand to vacate. Possession was lawful at first but later became illegal, i.e. defendant withholds possession after expiration of his right. Prior physical possession is NOT REQUIRED. PLENARY ACTION TO RECOVER POSSESSION (ACCION PUBLICIANA) A civil proceeding to recover the better right of possession except in cases of forcible entry/unlawful detainer. Also used to refer to an ejectment suit filed after the expiration of 1 year from the unlawful withholding of possession of the realty. ACTION TO RECOVER POSSESSION BASED ON OWNERSHIP (ACCION REINVINDICATORIA) An action to seek the recovery of ownership, necessarily including the jus utendi and jus fruendi.

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WHEN APPLICABLE 1. When dispossession is by any means other than those mentioned in SEC 1 RULE 70 RoC 2. When, although any of the special circumstances is present, where the 1 year prescriptive period for bringing an action for forcible entry or unlawful detainer has expired Physical/material possession (possession de facto) (i.e. NOT civil possession or possession de jure, which arises from the ownership or is one of the attributes of ownership), of which a person 1) has been deprived or 2) against whom it has been withheld by any of the means/circumstances mentioned in RULE 70 1. A person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth (forcible entry under RULE 70) ; 2. A landlord, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration/ termination of the right to hold possession by virtue of any contract, express or implied (unlawful detainer); or 3. The legal representatives/ assigns of any such landlord, vendor,
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ISSUE

WHO MAY INSTITUTE

Possession de jure of realty independent of the title and restitution of possession. This action is distinct and different from an action for recovery of title or ownership. A judgment rendered here is conclusive only as to the question of possession, but not as to the question of ownership. An owner who is dispossessed by means other than those mentioned in RULE 70 RoC, or when the possession of land is due to tolerance of the owner. It is not necessary to wait until the expiration of 1 year before commencement of action. It can also be filed after the expiration of the 1 year period if no action for forcible entry or unlawful detainer has been filed during that time, otherwise, barred.

Ownership, recovery of the dominion over the property as owner. If the issue of possession has already been decided, this is the only action that can be filed.

Legal owner or one with the better right over the property. In an action for reconveyance, what is sought is the transfer of the property which has been wrongfully/ erroneously registered in another persons name, to: 1) its rightful and legal owner; or 2) to one with the better right

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vendee or other person 1. Prior possession de facto 2. Undue deprivation thereof When the complaint fails to aver acts constitutive of forcible entry/unlawful detainer (how he was dispossessed), the remedy should be either accion publiciana or accion reinvindicatoria. In an ejectment suit, issue of ownership can be passed upon by the court only by determining the issue of possession de facto. An action for ejectment is merely a quieting process. If plaintiff has in his favor priority in time, he has the security that entitles him to remain in the property (even against the owner himself) until he is lawfully ejected by a person having a better right by an accion publiciana or accion reinvindicatoria. MTC Summary In nature these cases involve a disturbance of social order which must be abated as promptly as possible without any undue reliance on technical and procedural rules

CIVIL LAW

WHAT HAS TO BE ALLEGED

For an action to reconveyance to prosper, the property should not have passed into the hands of an innocent purchaser for value.

WHERE FILED

RTC Prescriptive Periods: 1. 4 yearsif based on fraud from date of issuance of certificate of title over property 2. 10 yearsif based on implied or constructive trust 3. Imprescriptible when plaintiff is in possession of property 4. 30 years (without prejudice to what is established for the acquisition of ownership and other real rights by prescriptionART1141)if real actions over immovables

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Art. 427. Ownership may be exercised over things or rights. Ownership is subject imposed by: 1. LAW and 2. RIGHTS of others to restrictions

CIVIL LAW
owners of such tenements. (Lunod v. Meneses) 10. Right to Receive Just Compensation in case of Expropriation (435) exception 436: when any property is condemned or seized by competent authority in the interest of health, safety or security 11. Right to Space and Subsoil The right of the owner extends to the space and subsoil as far as necessary for his practical interests or to the point where it is possible to assert his dominion and there is the possibility of obtaining some enjoyment or benefit. Beyond these limits, he would have no legal interests. 12. Right to Hidden Treasure (if found on his property) a) hidden and unknown movables consist of money or precious objects b) owner is unknown c) If treasure is found by a stranger by chance belongs to finder; the finder must not be trespasser be entitled to a share. Discovery by chance When there is no purpose or intent to look for the treasure. 13. Right to accession 14. Right to recovery or possession/ ownership Actions for possession: 1. movable replevin (return of a movable) 2. immovable a) forcible entry b) unlawful detainer c) accion publiciana d) accion reinvindicatoria e) Writ of Possession -- the original registered owner is entitled to a writ of possession against the parties who appear and answer in the land registration proceedings and against all those who, having been served with process, do not appear or answer. f) Writ of injunction May be used to prevent or restrain acts of trespass or illegal interference by others of his possession of the property. Requisites in an action to recover (a) Identity of the property (b) Strength of plaintiffs title/ Better Title Limitation of Real Right of Ownership (1) For the benefit of the state and for public interest (Police power, eminent domain, taxation)

Attributes of Ownership (UFADVPA) 1. Jus possidendi- right to possess 2. Jus Utendi (right to use)right to enjoy by receiving the thing that it produces. 3. Jus abutendiright to enjoy by consuming the thing by its use 4. Jus Disponendithe right to dispose or encumber, transform, and even destroy the thing owned. 5. Jus Fruendi right to receive fruits 6. Jus vindicandiright to exclude from the possession of the thing owned by any other person to whom the ownership has not transmitted such thing, by the proper action for restitution, with the fruits, accessions, and indemnification for damages. 7. jus accessionis- right to the accessories Other specific rights: (HARJEES) 8. Right to Exclude: Doctrine of SelfHelp (429) Elements: a) Person exercising rights is owner or lawful possessor b) There is actual or threatened unlawful physical invasion of his property (not available to squatters) c) Use force as may be reasonably necessary to repel or prevent it -Available only when possession has not yet been lost, if already lost resort to judicial process -May be exercised by 3rd person negotiorum gestio - Art. 431. cannot make use thereof in such manner as to injure the rights of a third person. 9. Right to Enclose or Fence without detriment to servitudes constituted thereon (430) A person cannot enclose his tenement and construct a fish pond that will obstruct the natural flow of waters from the upper tenements to the injury of the

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(i) Expropriation for public use (ii) Military requisitions (iii) Zonification laws (iv) Public or government monopolies (v) Law on water and mines (vi) Public health and safety (vii) Public easements (2) Legal servitudes and Voluntary Servitudes (3) Limitations imposed by party transmitting property (i) Either by contract or last will or donations (ii) Stipulation on inalienability (4) True Owner Must Resort to Judicial Process (5) It is unlawful to exercise the right of ownership in such a manner as to have no other effect than to injure a third person without benefit to the owner. (a) Act in State of Necessity The law permits the injury or destruction of things belonging to others provided this is necessary to avert a greater danger or dangers. Different from concept of selfhelp; the purpose is to protect the actor himself or another person at the expense of the owner of the property who has no part in the state of necessity. (b) Liability of Proprietors under Article 2191, for damagegs caused by exposion of machinery,

CIVIL LAW III. ACCESSION

Art. 440. The ownership of property gives the right by accession to everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially. General Principles of Accession (1) Accessory follows the principal (2) No unjust enrichment (Art. 443) (3) All works, sowing, and planting are presumed made by owner & at his expense, unless otherwise proved (Art. 446) (4) Accessory incorporated to principal such that it cannot be separated without injury to work constructed or destruction to plantings or construction of works. (5) Bad faith involves liability for damages (6) Bad faith of one party neutralizes bad faith of the other (Art. 453). (7) Ownership of fruits belong to the principal thing; Exceptions: (PULA) (i) possession in good faith is entitled to fruits (ii) usufructuary is entitled to fruits (iii) lessee is entitled to fruits (iv) antichretic creditor is entitled to fruits Kinds of Accession (1) Accession discreta the right pertaining to the owner of a thing over everything produced thereby: (a) Natural fruits, or spontaneous products of the soil, and the young and other products of animals (Art. 442) (b) Industrial fruits, or those produced by lands of any kinds through cultivation or labor (Art. 442) (c) Civil fruits, or rents of buildings, the price of leases of and other property and the amount of perpetual or life annuities or other similar income (Art. 442) A dividend, whether in cash or stock, is income or fruit and consequently should go to the usufructuary, rather than the owner of the shares of stock. Dividend is declared only out of the profits of a corporation and not out of its capital. (Bachrach vs. Seifert).

excessive smoke, falling of trees, emanations from canals (c) Fortified places or Fortressesmust comply with special laws and regulations (d) Easement of Aqueduct- must observe proper distances and prevent damage to neighboring tenements (e) Planting of Trees (f) Easements (g) Lateral and Sub-adjacent Support Cannot commit crime in the exercise of ownership (People vs Segovia, 1958) Can file action for recovery of possession even if one has never possessed the land; action is plenary action for recovery of possession (De La Paz vs. Panis, 1995)

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A bonus paid by the mortgagedebtor to another who had mortgaged his land to secure the payment of the debtors obligation to a bank is not a civil fruit of the mortgaged property. It is not income delivered from the property but a compensation granted for the risk assumed by the owner of the property. (Bachrach vs. Talisay-Silay) Right of owner of materials (OM)

CIVIL LAW

1. Right to be indemnified or paid of value of property by owner of land 2. Right to remove materials if he can do so w/o injury to work constructed if owner has not paid 3. Right to damages and demolition even if with injury to work if owner of land is in bad faith BUILDING, PLANTING, SOWING a) BPS / Land-owner + Owner of Materials 447 Land-owner GF: took materials with no knowledge that it belonged to a 3rd person Land-owner BF: took materials knowing fully well that it belonged to a 3rd person Owner of Materials GF: demanded payment / no idea of taking Owner of Materials BF: regardless

(2)

Accession Continua the right pertaining to the owner of a thing over everything that is incorporated or attached thereto, either naturally or artificially. (a) With regard to property (a.1) Accession (BPS) immovable industrial

(i) Building, (ii) Planting, or (iii) Sowing (Arts. 445-456) (a.2) Accession natural (FACA) (i) Alluvium (ii) Avulsion (iii) Change in the course of river (iv)Formation of islands (b) With regard to movable property (ACS) (b.1) Adjunction or conjunction (i) inclusio or engraftment (ii) soldadura or attachment (a) ferruminatio objects are of the same metal (b) plumbatura objects are diff. metals (iii) tejido or weaving (iv) pintura or painting (v) escritura or writing (b.2) Commixtion or confusion (b.3) Specification Accession Industrial Art. 446 establishes 2 disputable presumptions regarding BPS: (a) The works etc. were made by the owner (b) They were made at the owners expense Exception: When contrary is proven

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Land-owner / BPS (by himself or thru another) GF: pay value of materials and own the thing built BF: pay value of materials + damages

Owner of Materials GF: right to be paid value of materials May remove materials if can be separated without injury (no accession) but accession prevails (hence, most likely only get paid) GF: right to be paid value of materials + indemnity or remove materials even with damage + indemnity BF: right to be paid value of materials Another view: 449 by analogy, loses right to materials, no reimbursement BF: (both considered good faith)

GF: pay value of materials regardless of bf/gf of OM Another view: 449 by analogy, no reimbursement BF: (both considered good faith)

a) BPS / Owner of Materials + Land-owner Land-owner GF: options 1. Appropriate works, sowing or planting + pay indemnity 2. Oblige BP to pay price of land (or pay rent if land value > building and trees) or Sower to pay rent Rent fixed by agreement of parties; if not, by court 448 GF: options 1. Appropriate without indemnity 449 2. Compel removal without indemnity at BPSs expense 450 3. Compel BP to pay price of land (no conditions) and Sower, the proper rent 450 Whichever option chosen, entitled to receive damages 451 BF: 447 by analogy 454 Pay value of materials + damages BF: loses what is built, planted or sown, with no right to indemnity 449 Still entitled to reimbursement for necessary expenses of preservation of the land 452 Whichever option chosen, must pay LO damages 451 Land-owner GF: no knowledge of illegal BPS Land-owner BF: has knowledge of illegal BPS and does not oppose it 453 (2) BPS/OM GF: s/he does not know that he built on anothers land BPS/OM BF: has knowledge that he had no right to build, plant or sow BPS / Owner of Materials GF

GF: options (447 by analogy 454) 1. Remove works, sowing or planting even with damage 2. Force payment of indemnity BF: (both considered GF) 453 (1)

BF: (both considered GF)

b) BPS + Land-owner + Owner of Materials 455

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BPS GF (GF) OM GF

CIVIL LAW

Land-owner GF

LO appropriates and pays indemnity: OM can proceed against LO only after BPS refuses/cannot pay, OM cannot remove LO sells land to BPS: OM can only proceed against BPS GF BF (GF) GF LO compels demolition: OM cannot claim from LO, BPS solely liable LO appropriates and pays indemnity: OM can proceed against LO only after BPS refuses/cannot pay, OM cannot remove LO sells land to BPS: OM can only proceed against BPS GF (GF) GF BF BPS removes even with damage: OM can only go after BPS BPS forces LO to pay indemnity: OM cant demand removal/return but OM can proceed against BPS and subsidiarily, the LO BF BF (GF) GF Similar to GF-GF-(GF)-GF LO appropriates and pays indemnity: OM can proceed against LO only after BPS refuses/cannot pay, OM cannot remove LO sells land to BPS: OM can only proceed against BPS GF GF (BF) GF

LO appropriates and pays indemnity: OM can proceed against LO only after BPS refuses/cannot pay, OM cannot remove LO sells land to BPS: OM can either ask BPS for indemnity + damages or remove material even with damage GF BF (BF) GF LO compels demolition: OM can compel return of material by removing even with damage + damages or OM can ask for indemnity + damages LO appropriates: OM cant remove because right of removal applies only to BPS in BF, LO cant be prejudiced; OM only entitled to the value of materials (indemnity) + damages from LO LO sells land to BPS: OM can compel removal (straightforward 447) or ask BPS for indemnity + damages BF GF (BF) GF BPS removes even with damage: OM can either compel BPS to pay indemnity or to return materials, in both cases + damages BPS forces LO payment of indemnity: OM cant demand removal/return but OM can proceed against BPS and subsidiarily, the LO BF BF (BF) GF Similar to GF-GF-(BF)-GF LO appropriates and pays indemnity: OM can proceed against LO only after BPS refuses/cannot pay, OM cannot remove LO sells land to BPS: OM can either ask BPS for indemnity + damages or remove material even with damage

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Cases: A forced co-ownership occurs when the BPS has acted in good faith. Owner of the land ihas the right of retention (to pay) because his right is older and because, by the principle of accession, he is entitled to the ownership of the accessory thing. (Bernardo vs. Baticlan) Since the option to remove or demolish improvement is given to the LO and it is limited to paying for the improvement or selling his land to the BPS, he cannot refuse to exercise his right of choice and compel the builder to remove or demolish the improvement. He is entitled to such removal only when after choosing to sell his land, the other party fails to pay for the same. (Ignacio vs Hilario) An order by a court compelling a builder in good faith to remove is building from land belonging to another who chooses neither to pay for such building nor sell the land is null and void for being offensive to Art. 448. (Sarmiento v. Agana) While a possessor in good faith may retain the property until he is reimbursed for necessary and useful expenses, all the fruits he receives from the moment his good faith ceases must be deferred or paid by him to the LO. He may, however, secure the reimbursement of his expenses by using the fruits to pay it off (deduct the value of the fruits he receives from the time his good faith ceases from the reimbursement due him). (Ortiz vs Kayanan) A BPS in good faith does not lose his rights under Art. 448 merely because of the fact that some years after acquiring the property in good faith, helearned about and aptly recognized the right of the LO to a portion of the land occupied by the building. The supervening awareness does not prejudice its right to claim the status of a builder in good faith. (Tecnogas Phil. Manufacturing Corp. vs CA) The BPS in good faith should not pay rentals to the LO spouses. The spouses, having opted to appropriate the improvement on the lot, have to reimburse the BPS of the cost of construction of the building (in accordance with Art 546). The BPS has the right to retain the improvements until he is reimbursed. An implied tenancy or possession in fact is created pending the payment of the corresponding indemnity. (Pecson v CA) Good faith consists in the belief of the builder that the land he is building on is

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his and he is ignorant of any defect or flaw in his title. And as good faith is presumed, the LO has the burden of proving bad faith on the part of the BPS. (Pleasantville Devt. Corp. v CA, 1996) After the BPS had refused to restore the land to the LO, to the extent that the latter even had to resort to the present action to recover his property, the LO could no longer be regarded as having impliedly assented or conformed to the improvements thereafter made by appellant on the premises. (Felices v. Iriola) (2) Accession in Natural (i) Alluvium 457 the accretion which lands adjoining the banks or rivers, lakes, creeks or torrents gradually receive from the Requisites of alluvium: (CANG) (a) The accretion must be gradual (b) (c) The cause must current of the water be the

The land where the accretion takes place must be adjacent to the banks must be natural

(d)

*riparian owner owner of the land fronting such riverbanks The alluvium, though automatically owned by the riparian owner from the moment the soil deposit can be seen, is not automatically registered property, since it is subject to acquisition through prescription by 3rd persons. (Grande vs CA) (ii) Avulsion 459 takes place whenever the current of a river, lake, creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate Avulsion 1. Deposit of soil is sudden or abrupt 2. The owner of the property from which a part was detached retains the ownership thereof (2 yrs) 3. The detached portion can be identified

Distinguished from Alluvium Alluvium 1. Deposit of soil is gradual 2. Deposit of the soil belongs to the owner of the property where the same was deposited 3. The soil cannot be identified

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Requisites of Avulsion (SIC) (a) The segregation and transfer is caused by current of water (b) The segregation and transfer must be sudden or abrupt (c) The portion of land transported must be known and identifiable

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On lakes, and on navigable or floatable rivers (Art. 464) or nonnavigable and non-floatable rivers (Art. 465). (1) Ownership of islands formed through alluvion (a) If formed: (a.1) on the jurisdiction seas within Phil.

Rights of the riparian owner Removal within 2 years The former owner preserves his ownership of the segregated portion provided he removes (not merely claims) the same within the period of 2 yrs. Art. 460 applies only to uprooted trees. If a known portion of land with trees standing thereon is carried away by the current to another land, Art. 459 governs. (iii) Change of river beds

(a.2) on lakes, and (a.3) on navigable or floatable waters, the island belongs to the State (b) If formed in non-navigable and non-floatable rivers: (b.1) it belongs to the nearest riparian owner or owner of the margin or bank nearest to it as he is considered in the best position to cultivate and develop the island (b.2) it is divided longitudinally in halves, if it is in the middle of the river (c) Concept of navigable river A navigable river is one which forms in its ordinary condition by itself or by uniting with other waters a continuous highway over with other waters a continuous highway over which commerce is or may be carried on. Test: A river is navigable if it is used or susceptible of being used, in its ordinary condition, as a highway of commerce, that is, for trade and travel in the usual and ordinary modes. Accession Continua-Movable property: (1) Adjunction or Conjunction that which takes place whenever movable things belonging to different owners are united in such a way that they cannot be separated without injury, thereby forming a single object (Art. 466) Ownership of new object formed by adjunction Owner of Principal OP Owner of Accessory OA (a) union in Good Faith OP acquires accessory, AND pays OA for its value in uncontroverted state. (b) union in Bad Faith

that which takes place when a river bed is abandoned through the natural change in the course of the waters (Art. 461) Requisites for the application of Art. 461: (a) There must be a change in the natural course of the waters of the river. The change must be abrupt

(b) or sudden.

Right of owner of land occupied by new river course 1. Right to old bed ipso facto in proportion to area lost 2. Owner of adjoining land to old bed shall have right to acquire the same by paying its value value not to exceed the value of area occupied by new bed 3. Formation of island in nonnavigable river a) owner of margin nearest to islands formed if nearest to it b) owner of both margins if island is in the middle (divided into halves longitudinally) (iv) Formation of islands either on the seas within the jurisdiction of the Philippines.

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-if OA incorporated in BF 1. lose the thing and 2. indemnify OP for damages -if OP acted in BF 1. OA has right to choose -payment of value -separation (even if destroys principal) 2. OA indemnified (c) If OP or OA made the incorporation with the knowledge and without the objection of the other, their respective rights shall be determined as though both acted in good faith. (d) if involves 3 things Art. 466 should be applied in an equitable manner. The principal should be determined and distinguished from the others which would be considered the accessories. TEST to determine adjunction: principal in

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(b) If PT is in Bad Faith, 1. OM shall appropriate work to himself Without paying maker OR 2. demand indemnity for value of material & damages BUT If transformed thing is more valuable than material, owner of material cannot appropriate (3) Commixtion or confusion that which takes place whenever there is a mixture of things solid or liquid belonging to different owners, the mixture of solids being called commixtion, while that of liquids, confusion (Art. 472). Rights 1. If both owners are in good faith Each owner shall acquire a right proportional to the part belonging to him (vis-a-vis the value of the things mixed or confused) 2. If one owner is in bad faith he shall lose the thing belonging to him plus indemnity for damages caused to owner of other thing mixed with his thing 3. If both in bad faith no cause of action against each other

In order of application, the principal is that: (a) To which the other (accessory) has seen united as an ornament or for its use or perfection (Art. 467)INTENT (a) Of greater value, if they are unequal values-VALUE (a) Of greater volume, if they are of an equal value (Art. 468)-VOLUME (a) That of greater merits taking into consideration all the pertinent legal provision applicable as well as the comparative, merits, utility and volume of their respective things. (3) Specification that which takes place whenever a person imparts a new form to materials belonging to another person (Art. 474). Ownership of specification the new object in

IV. QUIETING OF TITLE

It is a remedy or form of proceeding originating in equity jurisprudence, which has for its purpose an adjudication that a claim of title or an interest in property, adverse to that of complainant, is invalid, so that the complainant and those claiming under him may be forever free from any danger of the hostile claim. Requisites (1) There is a cloud on title to real property or any interest to real property (Art. 476) (2) Plaintiff has legal or equitable title to or interest in the subject/real property. (3) Instrument, record, claim, encumbrance or proceeding must be valid and binding on its face but in truth and in fact invalid, ineffective, voidable or unenforceable; contract upon which defendant relies has been extinguished or terminated, or has prescribed (4) Plaintiff must return benefits received from the defendant.

Person who made Transformation PT Owner of Material OM (a) If PT is in Good Faith, he shall 1. appropriate thing transformed as his own 2. indemnify owner of material BUT If material is more precious than transformed thing OM may 1. appropriate new thing to himself and indemnify labor OR 2. demand indemnity for materials

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Differences between action to quiet title, action to remove a cloud, and action to prevent a Cloud QUIET TITLE REMOVE CLOUD PREVENT CLOUD Purpose is to put to an end Intended to procure the Removal of a possible to vexatious troublesome cancellation; delivery; release foundation for a future litigation over the property of an instrument, encumbrance hostile claim. involved or claim, which constitutes a claim in plaintiffs title, and which may be used to injure or to vex him in his enjoyment of his title.
Remedial action: involving a present adverse claim Preventive action: removes cloud which may be used for future actions Preventive action: to prevent a future cloud on the title

Plaintiff asserts his own estate and declares generally that the defendant claims some estate on the land, without defining it and avers that the claim is without foundation and calls on the defendant to set forth the nature of his claim for determination
Filed against people who have claims; claims are more general in nature

Declares his own title and also avers he source and nature of the defendants claim, points out its defects and prays it be declared void

Filed against defendant who asserts claims based on an invalid instrument (but not apparent)

Prescription of actionImprescriptible if plaintiff is in possession; if not, prescribes within period for filing accion publiciana, accion reivindicatoria. Notes: An action for reconveyance: a) Prescribes in 10 years if the plaintiff is NOT in possession of the property and if the action for reconveyance is based on an implied or constructive trust. The point of reference is the date of registration of the deed or the date of the issuance of the certificate of title over the property. b) Is IMPRESCRIPTIBLE if the person claiming to be an owner is in actual possession of the property. Here, the right to seek reconveyance in effect seeks to quiet title. (Olviga v. CA) It is not necessary that the vendee has an absolute title. An equitable title is sufficient to clothe him with personality to bring an action to quiet title. (Pingol v. CA) What plaintiff imagined as clouds cast on his title were PRs alleged acts of physical intrusion and not. an instrument, record, claim, encumbrance or proceeding

which constitutes or casts a cloud, doubt, question or shadow upon the owners title or interest in real property. Clearly, the acts alleged may be considered grounds for an action for forcible entry but definitely not one for quieting of title. (Titong v. CA)

V. RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING

Liability for damages: 1. collapse engineer, architect or contractor 2. collapse resulting from total or partial damage; no repair made owner; state may compel him to demolish or make necessary work to prevent if from falling 3. if no action done by government at expense of owner

VI. CO-OWNERSHIP
Art. 484. There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons.

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Characteristics of Co-ownership (PUSAM) (1) plurality of owners, but only one real right of ownership (2) unity of material of the object of ownership (3) recognition of ideal shares or aliquot (4) absolute control of each co-owner over his ideal share, not over specific portions of the property (5) mutual respect among co-owners in regard to the use, enjoyment, and preservation of the property owned in common. Differences between co-ownership and joint tenancy Co-ownership Tenancy in Common, Ownership in Common, Codominium Civil law origin Each co-owner owner of his ideal share Each co-owner may dispose of his undivided share without the others consent. In case there is a co-owner who is a minor, minority as a defense against prescription is exclusive to him. Joint Ownership Joint tenancy, Tenancy in common, Notion of all-for one, onefor-all Common Law/ Anglo-American origin Each joint owner, the surviving joint owners are subrogated in his rights by accretion Joint owner must obtain the consent of all the rest to dispose of his share. The defense of one joint owner can be used as a defense by all joint owners.

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common. As a rule, an agreement to keep the ownership for more than 10 years is void. Creditors of a coowner can attach his shares in the co-owners and sold on execution Death or incapacity of a co-owner does not affect existence of a co-ownership A special authority is needed for such representation. A co-owner can freely dispose of his share without need to ask the consent of the other co-owners. Profits of a coowner depend on his proportionate share; profitsharing is invariable (Art. 485) not subject to stipulation

No term set limit set by law

Creditors of individual partners cannot attach and sell on execution the shares of partners in the partnership Can be extinguished by the death or incapacity of one party There is mutual representation of the parties A partner cannot transfer his rights to a 3rd person without the consent of the others Distribution of profits can be stipulated upon (profit-sharing)

Sources of co-ownership (1) Law (a) Cohabitation (i) Between man and woman capacitated to marry each other. (Art 147, FC) (ii) Between man and woman not capacitated to marry each other (Art. 148, FC) (b) Absolute community property (Art. 90, FC) (c) two or more persons purchase property and by common consent legal title is taken in the name of one of them for the benefit of all, an implied trust is created in favor of the others in proportion to each to interest of each. (Art. 1452) (d) Succession (i) Intestate succession (1078) (ii) Testateif property is given to two or more heirs by the testator

Differences between and co-ownership Ordinary Partnership With legal/juridical personality distinct from its members Created only by agreement or contract to that effect Purpose is obtain profit to

partnership

Co-ownership No legal personality distinct from its members created by LAW FOCUS [Law, Fortuitous Event, Occupancy, Contract, Succession] Purpose is collective enjoyment and to maintain the unity and preservation of the things owned in

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Redemption done by one of the co-owners/heirs will benefit his other co-owner heirs despite the fact that they did not contribute to the redemption money. (e) Donation donation to several persons jointly, it is understood to be in equal shares no rights of accretion unless the donor otherwise provides but if donation is made to husband and wife jointly, there shall be a right of accretion, unless contrary so provide. (f) Chance commixtion in good faith (Art. 472, NCC) (g) Hidden treasure co-ownership between finder and owner (h) Easement of a party wall (i) Occupation Harvesting and fishing (Punsalan et al. v. Boon Liat et al.) (j) Condominium law Sec. 6(c) of RA 4726 unless otherwise provided, common areas are held in common by the holders of the units in equal shares, one for each unit. (2)Contract (a) Two or more persons agree to create a co-ownershipmaximum of ten years (494, 2nd par), extendable by a new agreement. (b) Universal Partnership (i) Of all present properties (Art. 1778-1779, NCC) (ii) Of profits (Art. 1780, NCC) (c) Associations and Societies, whose articles are kept secret wherein anyone of the members may contact in his own name with third persons (no juridical personality) Rights of each co-owner as to the thing owned in common: FRom CUERPO (1) proportionate Fruits and benefits (485) (2) Repairs for preservation (489-490) (3) Compel contribution (488) (4) Use according to purpose intended (486) (5) bring an action for Ejectment (487) (6) legal Redemption (1620) (7) demand Partition and terminate coownership (494-496; 498) (8) full Ownership of proportion (493)

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(1)Right to share in the fruits and benefits in proportion to his interest PROVIDED the charges are borne by each in the same proportion A contrary stipulation is VOID. Portions are presumed equal unless contrary is proved. Accretion added to any portion of land co-owned becomes part of the property in co-ownership and should be divided according to each coowners proportionate share. repairs for

(2)Right to make preservation

Necessary expenses - taxes and expenses for the preservation of the thing which if not made would endanger the existence of the thing or reduce its value or productivity - may be incurred upon the will of 1 co-owner, but if practicable, he must give reasonable notice to the other co-owners Useful expenses - increase the income of the thing owned in common for the benefit of all the co-owners - a lone co-owner cannot incur such expenses without the consent of the others and then ask reimbursement (resolution of majority as per Art. 492) - Effect of failure to notify coowners even if it was practicable to do so: does not deprive coowner of right to reimbursement. He is merely given the burden to prove the necessity of such repairs. He will not be fully reimbursed if others can prove that i.e., could have hired a contractor who would charge less

(3)Right to compel the other coowner to contribute For: 1. expenses for preservation 2. taxes BUT co-owner has option not to contribute by renouncing so much of his undivided interest equal to the amount of contribution EXCEPT if waiver is prejudicial to co-ownership

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(4)Right to use the thing according to its intended purpose may be altered by agreement, express or implied, provided: - without injury or prejudice to interest of co-ownership; and - without preventing the use of other co-owners Any act against the collective interest is an act against ownership and the remedies available to owners in general may by used by the coowner

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him upon termination of the coownership and, as earlier discussed, that the remaining co-owners have the right to redeem, within a specified period, the shares which may have been sold to the third party (Reyes vs. Judge Concepcion) Art 1621 presupposes that the land sought to be redeemed is rural. Both landsthat sought to be redeemed and the adjacent lot belonging to the person exercising the right of redemptionmust be rural. If one or both are urban, the right cannot be invoked. (Halili v. CA, 1998) Art. 1623 requires that the written notification should come from the vendor or prospective vendor, not from any other person. It is the notification from the seller, which can remove all doubts as to the fact of the sale, its perfection, and its validity, for in a contract of sale, the seller is in the best position to confirm whether consent to the essential obligation of selling the property and transferring ownership thereof to the vendee has been given. (Francisco v. Boiser) The written notice of sale is mandatory for the tolling of the 30day redemption period, notwithstanding actual knowledge of a co-owner. (Verdad v CA, 1996) A third person, within the meaning of Art. 1620 of the Civil Code (on the right of legal redemption of a coowner) is anyone who is not a coowner. (Pilapil v CA)

(5)Right of to bring an action in ejectment no need to implead all the other coowners as co-plaintiffs because the suit is deemed to be for the benefit of all: a favorable decision will benefit everyone but an adverse decision will not affect them if they are not parties in the case or they did not give their consent to the action BUT action will not prosper if the action is for the benefit of himself only and not for the co-ownership For title to prescribe in favor of the co-owner, however, there must be a clear showing that he has repudiated the claims of the other co-owners and that they have been categorically advised of the exclusive claim he is making to the property in question. Only then will the period of prescription being to run. (Cortes v. Oliva) exercise legal

(6)Right to redemption

Redemption of the property by a coowner does not vest in him sole ownership over said property but will inure to the benefit of all co-owners. Redemption is not a mode of termination of relationship. (Mariano v CA) By the very nature of the right of "legal redemption", a co-owner's right to redeem is invoked only after the shares of the other co-owners are sold to a third party or stranger to the co-ownership. The law does not prohibit a co-owner from selling, alienating or mortgaging his ideal share in the property held in common. The law merely provides that the alienation or mortgage shall be limited only to the portion of the property which may be allotted to

(7)Right to ask for partition PARTITION: a division between two or more persons of real or personal property which they own as copartners, joins tenants or tenants in common, effected by the setting apart of such interests so that they may enjoy and possess it in severalty. Gen rule: A co-owner can always ask for a partition. There is no prescriptive period. Exceptions: (PUI SCAN) 1. when partition is generally Prohibited by law 2. when partition would render the thing Unserviceable, or the thing

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in common is essentially Indivisible - no physical partition but thing maybe sold and co-owners shall divide the proceeds when there is a Stipulation against it (not beyond 10 years) when Condition of indivision is imposed by transferor (donor or testator) not exceed 20 years Acquisitive prescription has set in facor of a stranger to coownership or in favor of coowner. when legal Nature of community prevents partition (e.g. party wall)

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quota or ideal portion without any physical adjudication. Co-owner can substitute another person in the enjoyment of the thing Effect of transaction by each coowner: 1. Limited to his share in the partition 2. Transferee does not acquire any specific portion of the whole property until partition 3. Creditors of co-owners may intervene in the partition to attack the same if prejudicial (Art. 499), except that creditors cannot ask for rescission even if not notified in the absence of fraud (Art. 497) Unless the partition is effected, each heir cannot claim ownership over the definite portion and cannot dispose of the same. Co-heir can only sell his successional rights. (Carvajal v CA) Art 493 of the NCC allows the alienation of the co-owner of his part in the co-ownership. The effect of such alienation or mortgage shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership In short, a co-owner can enter into a contract of lease insofar as to his interest. Therefore, he can also cancel such lease without the consent from the other co-owner. (Castro v. Atienza)

3. 4. 5.

6.

Either co-owner may demand the sale of the house and lot at any time and the other cannot object to such demand. Thereafter the proceeds of the sale shall be divided equally according to their respective interests. (Aguilar v. CA) Effects of partition: 1. It shall NOT prejudice third persons who did not intervene in the partition 2. There should be mutual accounting of benefits, reimbursements, payment of damages due to negligence or fraud, liability for defects of title and quality of portion assigned to each 3. The part allotted to a co-owner at partition will be deemed to be possessed by such co-owner from the time the co-ownership commenced. 4. Heir is exclusive owner of property adjudicated to him. 5. Co-owners reciprocally bound to each other for warranty of title and quality of part given to each (hidden defect) after partition. 6. Under Art. 1093, obligation of warranty is proportionate to respective hereditary shares; insolvency of one makes the others liable subject to reimbursement (joint liability) full ownership of

Duties and Limits to Rights of Coowners 1. pay for charges (485) 2. not to make alterations (491) after partition 3. mutually account (500) 4. liability for defects in title and quantity (501) Duty not to make alterations Alteration: act by virtue of which a coowner changes the thing from the state in which the others believe it should remain or withdraws it from the use to which they are desired to be intended in opposition to the common or tacit agreement Consent of ALL the co-owners is required if it changes the essence or nature of the thing (present article refers to this) because it is an act of ownership. Acts of alteration that do not change the essence or nature of the thing requires

(8)Right to proportion

All that he can sell or freely dispose is his undivided interest but he cannot sell or alienate a concrete, specific or definite part of the thing owned in common because his right over the thing is represented by a

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only the agreement of the majority because it is merely an act of administration. - but if withholding of consent by any one of the co-owners is clearly prejudicial to the common interest, courts may afford adequate relief (491) Acts of Alteration/Acts of Ownership Relates to the use, substance or form of the thing Have a more permanent result Consent of all is necessary Contrary to the coownership agreement Acts of Administration Also for the better enjoyment of the property Effects are transitory character of

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and their decisions are binding upon the minority. Majority may only proceed to act without notice to the minority if the circumstances warrant urgency. b) An administrator who may or may not be a co-owner delegated by the co-owners An administrator cannot, without the unanimous consent of all the coowners, compromise on, donate, cede, alienate, mortgage, or encumber in any manner the common property. The majority refers to the majority in interest or the financial majority. (50% + 1) When are acts seriously prejudicial? So serious and affects the interest of the co-owners in the community Such that will cause injuries enough to justify the intervention of the court Examples: (1) When the resolution calls for a substantial change or alteration of the common property or of the use to which it has been dedicated by agreement or by its nature (2) When the resolution goes beyond the limits of mere administration, or invades the proprietary rights of the co-owners, in violation of Art. 491 (prohibiting against acts of alteration) (3) When the majority leases, loans, or other contracts without security, exposing the thing to serious danger to the prejudice of the other coowners. (4) When the majority refuse to dismiss an administrator who is guilty of fraud or negligence in his management, or does not have the respectability, aptitude, and solvency required of persons holding such position. (5) When resolution, if carried out, would cause serious injury to the thing itself, such as an agreement not to borrow money under reasonable terms when it is necessary for urgent repairs for preservation, or for the payment of taxes. Remedies of the minority If the acts of the majority prejudice the minority, the latter may ask for injunction or at worse, a partition.

Consent of the financial majority will be binding Does not give rise to a real right over the thing owned in common.

Effects of acts of alteration and remedies of non-consenting coowner : (a) Co-owner who made alterations may lose whatever he has spent as he will not be reimbursed (b) He may be ordered to demolish or remove the alteration at his expense (c) He will be liable for damages and other losses (d) Co-ownership will benefit from the alteration if other co-owners decide to contribute to the expenses by reimbursing him (ratification) (e) If a house is built in a common lot, the co-owners are entitled to the proportionate share of the rent. Lease becomes an act of ownership if: (1) It is recorded in the Registry of Property (2) It is for more than 1 year Management of Property Who may manage: a) The co-owners themselves Court cannot appoint an administrator to manage a property co-owned when the co-owners want to handle the management. In this management, the majority control

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(b) plaintiff is indeed a co-owner of the property (c) how the property is to be divided between plaintiff and defendants. If property cannot be divided without great prejudice, the court may order such property be assigned to one co-owner. Such co- owner will pay the others the value of their interests.

Extinguishment of Co-Ownership (1) Total destruction of the thing (2) Merger of all the interest in one person (3) Acquisitive prescription (a) By a third person (b) By one co-owner against the other co-owners Requisites: (i) Unequivocal acts of repudiation of the rights of the other co-owners (acts amounting to ouster of other co-owners) (ii) Open and adverse possession, not mere silent possession for the required period of extraordinary acquisitive prescription. (iii)Presumption is that possession of a co-owner is not adverse. (4) Partition or division (a) Right of Creditors of individual Co-owners Art. 497 All creditors must be considered to intervene in the partition of the common property. They must have become creditors during the co-ownership Co-owner debtors have the duty to notify the creditors of the partition Otherwise partition not binding on them They can contest such partition if they formulate a formal opposition thereto. (b) Partition may be made: (ii.) Orally Valid and enforceable among the parties. Statute of frauds does not operate for partition is not a conveyance of property but merely a segregation and designation of that part of the property which belongs to the co-owners. (ii.) In writing (a) Court will just confirm such written agreement.

VII. CONDOMINIUM LAW (ACT NO. 4726) Concept of condominium Exclusive interest in units plus undivided interest in common areas. Partly co-ownership, partly under individual separate ownership Each unit belongs separately to one or more persons The land and the common areas are of common use by the different owners and are under co-ownership either as contemplated by the Civil Code or through a corporation. Not governed by co-ownership as provided for in the Civil Code. External surfaces are common areas Beams and posts are common areas Easement, unless the master deed says otherwise, is an exclusive easement. Interest in the common areas will depend on interest in the condo Important documents in buying a condo unit (i) deed of sale (ii) enabling or master deed (iii)declaration of restrictions Sec. 9 The owner of a project shall, prior to the conveyance of any condominium therein, register a declaration of restrictions relating to such project, which restrictions shall constitute a lien upon each condominium in the project and shall insure to and bind all condominium owners in the project. Such liens, unless otherwise provided, may be enforced by any condominium owner in the project or by the management body of such project. The Register of Deeds shall enter and annotate the declaration of restrictions upon the certificate of title covering the land included within the project, if the land is patented or register under the land included within the project, if the

(a) Rules of Court does not preclude amicable settlement between parties. (b) Two principal issues in an action for partition:

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land is patented or registered under the Land Registration or Cadastral Acts. Method of taxation

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(ii) as the unit may lawfully be altered or reconstructed from time to time (iii)such easement shall be automatically terminated in any air space upon destruction of the units to render it untenable (c) Unless otherwise provided, the common areas are held in common by the holders of units, in equal shares, one for each unit (d) a non-exclusive ease ment for ingress, egress, and support through the common areas are subject to such easements (e) Each condominium unit owner shall have the exclusive right to paint, repaint, tile, wax, paper, or otherwise refinish and decorate the inner surfaces of the walls, ceilings, floors, windows, and doors, bounding his own unit (f) Each condominium owner shall have the exclusive right to mortgage, pledge, encumber his condominium and to have the same appraised independently of the other condominiums but any obligation incurred by such condominium owner is personal to him. (g) Each condominium owner has also the absolute right to sell or dispose of his condominium unless the master deed contains a requirement that the property be first offered to the condominium owners within a reasonable period of time before the same is offered to outside parties. Case Ownership of a unit, therefore, is a condition sine qua non to being a shareholder in the condominium corporation By necessary implication, the "separate interest" in a condominium, which entitles the holder to become automatically a share holder in the condominium corporation, as provided in Section 2 of the Condominium Act, can be no other than ownership of a unit. (Sunset View Condominium v Judge Campos)

Sec. 25. Whenever real property has been divided into condominiums, each condominium separately owned shall be separately assessed, for purposes of real property taxation and other tax purposes to the owners thereof and the tax on each such condominium shall constitute a lien solely thereon. Partition of Common Areas Sec.7. Except as provided in the following section, the common areas shall remain undivided, and there shall be no judicial partition thereof. (b) Who manages the condominium? (i) condominium corporation (preferred by law) coterminous with the existence of the condominium (ii) co-ownership (iii) association of owners Rights and Obligations of Condominium owner What are the incidents of a condominium grant? (a) The boundary of the unit grant (i) the interior surfaces of the perimeter walls, floors, ceilings, windows, and doors (ii) those which are not part of the unit bearing walls, columns, floors, roofs, foundations, and other common structural elements of the building; lobbies, stairways, hallways, and other areas of common use, elevator equipment and shafts, central heating, central refrigeration, and central air-conditioning equipment, reservoirs, tanks, pumps, and other central services and faicilities, pipes, ducts, flues, chutes, conduits, wires and other utility installations, wherever located, except the outlets thereof when located within the unit. (b) Exclusive easement for the use of the air space encompassed by the boundaries of th unit (i) as it exists at any particular time

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VIII. POSSESSION Definition and Concept (1) Possession is the holding of a thing of the enjoyment (exercise) of a right (523), whether by material occupation (de facto possession) or by the fact that the thing or the right is subjected to the action of our will. (2) It is a real right independent of and apart from ownership. Essential requisites of possession (1) Holding or control of a thing or right (corpus) consists of either: (a) the material or physical possession (b) subject action of our willexercise of a right (c) constructive possession doctrine of constructive possession applies when the possession is under title calling for the whole, i.e., possession of a part is possession of the whole. Constructive possession a) tradicion brevi manu (one who possess a thing short of title of owner lease ); b) tradicion constitutum possesorium (owner alienates thing but continues to possess depositary, pledgee, tenant)

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their heirs. It is still part of the public domain until the patents are issued. (Director v. CA) Degrees of holding of possession (1) Mere holding or possession without title whatsoever and in violation of the right of the owner. applies to both movables and immovables both the possessor and the public know that the possession is wrongful there can be no acquisitive prescription of movables under the NCC (Art. 1133) (2) Possession with juridical title but not that of ownership. peaceably acquired this will never ripen into full ownership as long as there is no repudiation of concept under which the property is held (if such repudiation is made known to the owner, then extraordinary prescription of 30 yrs will apply) e.g., possession by tenant, depositary, agent, bailee, trustee, lessee, antichretic creditor even actual owner may be prevented by law from taking possession a depositary bank is not a possessor in this degree, since a deposit is actually a loan to the bank (3) Possession with just title or title sufficient to transfer ownership, but not from the true owner title deed of sale or contract of sale possession of a vendee from vendor who pretends to be the owner, i.e., innocent buyer of stolen goods good faith of buyer = just title if in good faith, extraordinary prescription of 30 years will apply this degree of possession ripens interesting full ownership by lapse of time

(2) Intention to possess (animus possidendi) it is a state of mind whereby the possessor intends to exercise and does exercise a right of possession, whether or not such right is legal intention may be inferred from the fact that the thing in question is under the power and control of the possessor may be rebutted by contrary evidence Cases: The general rule is that the possession and cultivation of a portion of a tract of land under a claim of ownership of all is a constructive possession of all, IF the remainder is not in the adverse possession of another. Possession in the eyes of the law does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession. (Ramos v. Director of Lands) The rule on constructive possession does not apply when the major portion of the disputed property has been in the adverse possession of homesteaders and

(4) Possession with just title from the true owner Transfer of possession transfers ownership! (possession as an incident of ownership) Cases of possession (1) Possession for oneself, or possession exercised in ones own name and possession in the name of another. rights of possession may be exercised through agents

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(a) necessary exercised on behalf of the conceived child, of juridical persons, of persons not sui juris, and of the conjugal partnership (b) voluntary in cases of agents or administrators appointed by the owner or possessor (2) Possession in the concept of an owner and possession in the concept of a holder with the ownership belonging to another better right preemption) (9) possession in possession in BF (3) Possession in good possession in bad faith

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(e.g., GF faith and and

In the Concept of a Holder such possessor acknowledges in another a superior right which he believes to be ownership, whether his belief be right or wrong e.g. tenant, usufructuary, and borrower In the Concept of Owner such possessor may be the owner himself or one who claims to be so only this class of possession can serve as title for acquiring dominion good faith or bad faith is immaterial except for purposes of prescription (GF: 10 yrs; BF: 30 yrs) Effects of possession in the concept of an owner: (1) possession may by lapse of time ripen into full ownership, subject to certain exceptions (2) presumption of just title and cannot be obliged to show or prove it Exception: for purpose of prescription in Art 1131. (3) possessor can bring all actions an owner can bring to protect his possession, except accion reivindicatoria (4) may employ self-help (Art 429) (5) can ask for the inscription of his possession in the registry of property (6) has right to the fruits and reimbursement for expenses (assuming he is a possessor in GF) (7) upon recovering possession from unlawful deprivers, can demand fruits and damages (8) generally, he can do everything an owner is authorized to do until he is ousted by one who has a

possession in good faith ceases from the moment defects in the title are made known to the possessor when an action is filed to recover possession, good faith ceases from the date of the summons to appear at the trial GF consists in the possessors belief that the person from whom he receive a thing was the owner of the same and could convey his title GF is always presumed belief that one is the legal owner must be based on some title or mode of acquisition, i.e., sale, donation, inheritance error in the application of the law, in the legal solutions that arise form such application, in the appreciation of the legal consequences of certain acts, and in the interpretation of doubtful provisions or doctrines, may properly serve as the basis of GFmistake upon a doubtful or difficult question of law as a basis of good faith [Art 526 (3)]

Subjects of possession All rights and things susceptible of appropriation Things which cannot be possessed: (1) property of public dominion (2) res communes (3) easements (discontinuous or non-apparent) (4) things specifically prohibited by law res nullius (abandoned or ownerless property) may be possessed but cannot be acquired by prescription Acquisition of Possession (1) Ways of acquiring possession (a) Material occupation of the thing occupation is used in the general sense, i.e., a means of acquiring possession of things, not of rights kind of possession acquired is only the fact of possession, not the legal right of possession (i) Doctrine of constructive possession (ii) Includes constructive delivery (equal to material occupation in cases where

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occupation is essential to the acquisition of prescription) traditio brevi manu one who possesses a thing by title other than ownership continues to possess the same but under a new title, that of ownership traditio constitutum possessorium owner alienates the thing, but continues to possess the same but as that of depositary, pledge, or tenant (b) subjection to the action of our will different from and independent of juridical acts and legal formalities as it refers more to the right of possession that to possession as a fact (i) traditio simbolica -effected by delivering some object or symbol, placing under the thing under the control of the transferee, such as the keys to the warehouse containing the goods delivered [Art 1498 (2)] (ii) traditio longa manu effected by the transferor pointing out to the transferee the things which are being transacted (c) proper acts and legal formalities refers to the acquisition of possession by sufficient title, whether inter vivos or mortis causa, or lucrative or onerous e.g., donations, succession, contracts, judicial writs of possession, writs of execution of judgments, and registration of public instruments There was a perfect contract of pledge and the depositary was placed in the possession of the goods after the symbolic transfer by means of delivery to him of the keys to the warehouse where the goods were kept. (Banco Espanol Filipino v. Peterson) (2) By whom possession acquired

CIVIL LAW
may be

(a) by same person Elements of personal acquisition must have the capacity to acquire possession must have the intent to possess possibility to acquire possession must be present (b) by his legal representative Requisites: representative or agent has the intention to acquire the thing or exercise the right for another, and not for himself person for whom the thing has been acquired or right exercised, has the intention of possessing such thing or exercising such right (c) by his agent (d) by any person without any power whatsoever but subject to ratification, without prejudice to proper case of negotiorum gestio (e) Qualifiedly, minors and incapacitated persons refers only to possession of things, not of rights, and to acquisition of possession by material occupation (3) What do not affect possession (a) acts merely tolerated (b) acts executed clandestinely AND without knowledge of owner (c) acts by violence as long as the possessor objects thereto (i.e., he files a case) If owner of a tract of land, to accommodate the public, permits them to cross his property, it is not his intention to divest himself of ownership or to establish an easement. Such possession is not affected by acts of possessory character which are merely tolerated. (Cuaycong v Benedicto) As a squatter, she has no possessory rights over the disputed lot. The States solicitude from the destitutes and the have-nots does not mean that it should tolerate usurpations pf property, public or private. (Astudillo v PHHC) A possessor by mere tolerance is necessarily bound by an implied promise to vacate upon demand. (Peran v CFI)

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(4) Rules possession to solve conflict of

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(ii) accion publiciana (based on superior right of possession, not of ownership) (iii) accion reivindicatoria (recovery of ownership) (iv) action for replevin for recovery of movable property (b) Possessor can employ self-help (2) Entitlement to fruits possessor in GF/ BF Possessor in GF is entitled to the fruits received before the possession is legally interrupted. Possessor in BF has no right to receive any fruits. Those already gathered and existing will have to be returned; with respect to those lost, consumed, or which could have been received, he must pay the value. But the possessor in BF does not have to pay interest on the value of fruits he has to pay, because such amount is unliquidated. (3) Reimbursement for expenses (See Table below (4) Possession of movable acquired in GF (in concept of an owner) is equivalent to title one who has lost a movable or has been unlawfully deprived thereof may recover it without reimbursement, except if possessor acquired it at a public sale (559) 3 requisites to make possession of movable equivalent to a title: (1) that the possession is in GF (2) that the owner has voluntarily parted with the possession of the thing (3) that the possession is in the concept of an owner Presumptions possessor in favor of the

In case of conflict of possession, the following order of preference must be followed: (1) present possessor or actual possessor (2) if 2 or more possessors, the one longer in possession (3) if dates of possession are the same, the one who presents a title (4) if all the condition are equal, the thing shall be placed in judicial deposit pending determination of possession or ownership through proper proceedings Preference in case of conflict of ownership (double sales) (1) for immovable property (a) first who registered his right in GF in the Registry of Property (b) if no registration, first who possessed in GF (c) if no possession, one who presents the oldest title (2) for movable property: first who possessed in GF Effects of Possession (1) In general, every possessor has a right to be respected in his possession; if disturbed therein, possessor has right to be protected in or restored to said possession (539) (a) action to recover possession (i) summary proceedings forcible entry and unlawful detainer. Plaintiff may ask for writ of preliminary mandatory injunction may be asked. Within 10 days from filing of complaint in forcible entry - the same writ is available in unlawful detainer actions upon appeal (Art 1674) The acquirer and possessor in good faith of a chattel or movable property is entitled to be respected and protected in his possession as if he were the true owner, until a competent court rules otherwise. Such possession in good faith is equivalent to title and every possessor has a right to be respected in his possession (Arts 539 and 559). (Yu v Honrado)

(1) Of good faith until the contrary is proved (Sideco vs. Pascua) (2) Of continutity of initial GF in which possession was commenced or possession in GF does not lose its character Exception: in the case and from the moment the possessor became aware or is not unaware of improper or wrongful possession. (3) Of enjoyment of possession in the same character in which was acquired until the contrary is proved.

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(4) Of non-interruption of possession in favor of present possessor who proves possession at a previous time until the contrary is proved. (554, 1120-1124) 2 Kinds of Interruption (1) Natural (Art 1122)if interruption is for more than 1 year. (2) Civil (Art 1123) will start from the service of summons but the proper action must be filed in case of natural interruption, the old possession loses all its juridical effects and therefore cannot be tacked to the new possession for purposes of prescription in case of civil interruption, if possession is recovered, it can be connected to the time that has elapsed as if it were continuous and can be counted in favor of prescription (5) Of exclusive possession of property allotted to a participant in a thing possessed in common for the entire period during which copossession lasted; (6) Of continuous possession or noninterruption of possession of which he was wrongfully deprived for all purposes favorable to him (561) (7) Other presumptions with respect to specific property rights (i) Of extension of possession of real property to all movables contained therein so long as it is not shown that they should be excluded (Art. 426) (ii) Non-interruption of possession of hereditary property (Art. 533, Art. 1078) (iii)Of just title in favor of possessor in concept of owner, subject to Art. 1141 Loss of Possession (1) Abandonment (2) AssignmentWON gratuitously or onerously (3) Destructionmust be total/goes out of commerce (4) Possession of anotherthe possession that is lost here refers only to possession as a fact (de facto), not the legal right of possession (de jure) NOTE: all the other 3 cases of loss of possession (abandonment, assignment, destruction) refer to loss of possession de jure (real right of possession) and

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therefore cannot be recovered anymore by any action. Rules for Loss of Movables General Rule: possession of personal property acquired in GF = title therefore the true owner cannot recover it Exception: if the true owner (1) lost the movable or (2) has been unlawfully deprived In either of these, he may recover the personal property not only from the finder but also from those who may have acquired it in GF from such finder or thief, without paying for any indemnity except if possessor acquired it in public sale but the possessor in GF is entitled to reimbursement. Wild animals are possessed only while they are under one's control; domesticated or tamed animals are considered domestic or tame if they retain the habit of returning to the premises of the possessor. (Art. 560) (5) Reivindicationthe most natural mode of losing possession, i.e., recovery or reivindication of the thing by the lawful owner

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Effects of Possession in Good Faith or Bad Faith Good Faith Bad Faith Entitled to the fruits while possession Must reimburse fruits received or is in GF and before legal interruption fruits which legitimate possessor (Art 544) could have received (549); Entitled to expenses for production, gathering, and preservation

Fruits received

Pending Fruits

Entitled to a part of the expenses of cultivation and a part of the network harvest, both proportion to the time of possession (545) Owner may indemnify or allow possessor in GF to finish cultivation and the fruits will be indemnified for his cultivation (545) If possessor refuses concession, no indemnity (545) Must share with the legitimate possessor, in proportion to the time of possession Right of reimbursement and retention in the meantime (545) Owners option to reimburse him either for expenses or for increase in value (546) Retention (546) prior to reimbursement

Charges Necessary Expenses Useful Expenses

Same as with GF Reimbursement only No right to reimbursement. He also cannot remove improvements even he can do so without injury to the principal thing

Ornamental Expenses Deterioration or Loss Costs of Litigation

Limited right of removal (but should not damage principal and owner does not exercise option of payment of expenses or increase in value) (547) Limited right of removal as above (548) No liability unless due to fraud or negligence after becoming in BF Bears cost

Limited right of removal (no injury to thing and lawful possessor does not retain by paying for them) (548) Liable WoN due to his fault, negligence, fortuitous event Bears cost

Effects of Recovery of Possession Improvements caused by nature or time shall always insure to the benefit of the person who has succeeded in recovering possession. (Art. 551). One who recovers possession shall not be obliged to pay for improvements which have ceased to exist at the time he takes possession of the thing. (Art. 553) necessary expenses: lawful possessor or owner has to pay for them even if the object for which they were incurred no longer exist

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Definition USUFRUCT is a real right which gives the usufructuary - a right to enjoy the property of another - with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. (Art.562) Characteristics 1. real right of use and enjoyment of property owned by another 2. of a temporary duration 3. transmissible 4. may be constituted on real or personal property, on tangibles or intangibles Rights of Usufructuary: A. As to the thing and its fruits 1. right to possess and enjoy the thing itself, its fruits and accessions (566-567) 2. right to lease the thing (572) 3. right to improve the thing Right to possess and enjoy the thing itself, its fruits and accessions Fruits belong to the usufructuary except when they diminish the substance of the thing (e.g., minerals in quarries), in which case they will belong to the usufruct only when the owner has dedicated the property to the exploitation of such products. Dividends from shares are fruits. Rights may be transferred, assigned, or otherwise disposed of by the usufructuary; As to hidden treasure, usufructuary is a stranger, so no right to it Fruits pending at the beginning of the usufruct belong to the usufructuary, with no obligation to refund the expenses of the owner. But, if expenses for production were incurred by third persons, they must be reimbursed. Fruits growing at the time of the termination of the usufruct belong to the owner, but the usufructuary must be reimbursed from the proceeds of such fruits for his production expenses. Right to lease the thing even without consent of owner BUT no alienation, mortgage, pledge

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Lease by the owner before the start of the usufruct is not extinguished by such usufruct. Usufructuary will be liable to the owner for damages caused by the fault or negligence of the transferee or lessee. General rule: Lease by the usufruct should terminated at the end of the usufruct or earlier. Exception: leases of rural lands, in which case the lease continues for the remainder of the agricultural year

Right to improve the thing Useful improvements or expenses only No alteration of form and substance Usufructuary may remove improvements only if it is possible without damaging the property. The owner cannot compel the usufructuary to remove the improvements. BUT If the usufructuary does not remove, he has no right to be indemnified. Registry of improvements is necessary to protect the usufructuary against third persons regarding the improvements. If improvements cannot be removed, such may be used to offset any damage caused by the usufructuary to the property. B. As to the usufructuary right itself 1. Right to alienate EXCEPT in purely personal ones or when the title constituting the usufruct prohibits the same. Examples: - Legal usufruct of parents (Art. 226 FC) - Usufruct granted the usufructuary in consideration of his person - Usufruct acquired through caucion juratoria Sale by the usufructuary Future crop may be sold; but such sale will be void if not ratified by the owner. Its a sale of property not belonging to the usufructuary and those gathered at the termination of the usufruct belonging to the owner. If things are consumable or were appraised when delivered, the usufructuary can dispose of them.

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Rights of the naked owner 1. At the beginning of the usufruct all obligations of the usufructuary at the beginning of the usufruct 2. During the usufruct retains title to the thing and improve it may alienate the property 3. At the termination or end of the usufruct recover property from the usufructuary in the same preserved form and substance with room for ordinary wear and tear subject to ordinary repairs Obligations of the Usufructuary These requirements are conditions merely to the entry upon the possession and enjoyment of the property. A. At the beginning of the usufruct or before the exercise of the right of the usufruct 1. To make an inventory EXCEPT when No one will be injured thereby Title constituting usufruct excused the making of inventory Title constituting usufruct already makes an inventory 2. To give a bond for the faithful performance of duties as usufructuary EXCEPT when No prejudice would result Usufruct is reserved by donor Title constituting usufruct excused usufructuary Caucion juratoria: a sworn undertaking wherein the usufructuary claims that he is in dire need of the house and the implements/furniture and asks that he be allowed to enjoy the same even without giving the required security B. During the usufruct 1. To take care of the things like a good father of the family bad use of the thing will not extinguish the usufruct Owner becomes entitled to delivery and administration of the thing should the abuse cause substantial injury to the owner 2. To undertake Ordinary Repairs for the preservation if not repairs made by usufructuary, even after the

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demand by the owner, the latter may pay for the repairs, with right of reimbursement from the usufructuary To Notify the Owner of Need to Undertake Extra-Ordinary Repairs Those caused by exceptional circumstances, WON they are necessary for the preservation of the thing Those caused by the natural use of the thing, but are not necessary for its preservation Naked owner obliged to undertake them but when made by the owner, usufructuary pays legal interest on the amount while usufruct lasts Naked owner cannot be compelled to undertake extraordinary repairs If indispensable and owner fails to undertake extraordinary repairs- may be made by the usufructuary To notify owner of any act detrimental to ownership OR ELSE, usufructuary will be liable for damage and he cannot make extraordinary repairs To shoulder costs of litigation regarding the usufruct To answer for the fault of alienee, lessee, or agent of the usufructuary

3.

4.

5. 6.

Causes of extinguishment of Usufruct (Art.603) DERM PLT 1. Death of the usufructuary, unless a contrary intention clearly appears; 2. Expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct; 3. Renunciation of the usufructuary; 4. Merger of the usufruct and ownership in the same person; 5. Prescription; 6. Total Loss of the thing in usufruct; 7. Termination of the right of the person constituting the usufruct Special Cases of Usufruct 1. over a pension or periodical income (570) 2. of property owned in common (582) 3. of head of cattle (591) 4. over deteriorable property (578)

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5. over vineyards and woodlands (575576) 6. on mortgaged property (600) 7. over entire patrimony (598) 8. over consumable property (574) quasi-usufruct may be on consumables, e.g., food, but must be replaced with equal quantity if not appraised, must be considered as on their value may also be on non-consumables that gradually deteriorate by use, e,g,, furniture or car in reality, the usufruct is converted into a simple loan not upon consumable things themselves which are delivered to the usufructuary, but upon the sum representing their value or upon a quantity of things of the same kind and quality the usufructuary, in effect, becomes the owner of the things in usufruct, while the grantor becomes a mere creditor entitled to the return of the value or of the things of the same quantity and quality

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It is not essential that the benefit be great. It is sufficient that there is a determinate use or utility in favor of a dominant estate. Not necessary that the right acquired under the servitude be exercised. Servitudes cant be established on things which are outside the commerce of man. Such things are inalienable. Imposition of an encumbrance would constitute an alienation. Servitudes cannot be created on property of public dominion. LEASE Real right only when it is registered, or when its subject matter is real property and the duration exceeds 1 year. May involve either real or personal property Limited right to both the possession and use of anothers property.

Easement v. Lease EASEMENT Real right WON registered, WON real or personal

Imposed only real property

on

X. EASEMENTS
Art. 613. Easement or Servitude: encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner... Dominant estate: the immovable in favor of which the easement is established Servient estate: the immovable which is the subject of the easement. Art. 614. Personal Easements: established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong. - real right or encumbrance imposed on an immovable for the benefit of another immovable belonging to a different owner or for the benefit of a community or one or more persons to whom the encumbered estate does not belong by which the owner is obliged to abstain from doing or to permit a certain thing to be done on his estate. Easements cannot be established on personal property Burden should not be so great as to amount to a taking of his property

Limited right to the use of real property of another, without right of possession.

Easement v. Usufruct EASEMENT USUFRUCT Imposed only on May involve either real property. real or personal property. Limited to a Includes all the particular or uses and fruits of specific use of the the property. servient estate. Non-possessory Involves right of right over an possession in an immovable immovable or movable. Not extinguished As a rule, by death of the extinguished by dominant owner. the death of the usufructuary. Essential Features of Easements or Real Servitudes (RAIL-IRI-NARIP) (1) It is a real right. It gives rise to an action in rem or real action against any possessor of the servient estate. (2) It is a right enjoyed over another property (jus in re aliena). It cannot exist in ones own property (nulli res sua servit). Servient and dominant

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estates have to belong to different persons. It is a right constituted over an immovable by nature not over movables. It limits the servient owners right of ownership or the benefit of the dominant estate. But servient tenement remains unimpaired. Being an abnormal limitation of ownership, it cannot be presumed. It creates a relation between tenements. It can exist only between neighboring tenements. It cant be created on another servitude. It cannot consist in requiring the owner of the servient estate to do an act unless the act is accessory to a praedial servitude (obligation propter rem). It may consist in requiring the owner of the dominant estate demanding that the owner of the servient estate refrain from doing something (servitus in non faciendo), or that the latter permit that something be done over the servient property (servitus in patendo) but not in the right to demand that the owner of the servient estate do something (servitus in faciendo) except if such act is an accessory obligation to a praedial servitude. It is inherent or inseparable from estate to which they actively or passively belong. (Art. 617) Servitudes cannot exist without tenements. They are merely accessory. This doesnt mean they dont have juridical existence of their own. (Solid Manila vs. Bio Hong) Inherence refers only to that portion of the tenement affected by it. Portion not affected can be alienated without the servitude. Contract of transmission of easement by owner of the dominant estate may constitute a renunciation or extinguishments of easement Classification Real/Predial In favor of another immovable (Art.613)

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(3) (4)

Personal In favor of a community or of 1 or more persons, may be public or private (Art.614) i. Public: vested in the public at large or in some class of indeterminate individuals ii. Private: vested in a determinate individual or certain persons

(5) (6) (7)

(8)

As to recepient of benefit

Voluntar y Establish ed by will or agreeme nt of the parties or by a testator (Art.619)

Legal Impose d by law either for public use or in the interest of private persons (Art.619 )

Mixed Created partly by will or agreement and partly by law

(9)

As to its source

Continuous
As to its exercise

Use of which is or may be incessant, without the intervention of any act of man. (Art.615) Apparent Made known and are continually kept in view by external signs that reveal the use and enjoyment of the same (Art.615)

Discontinou s Used at intervals and depend upon acts of men (Art.615)

(10) It is intransmissible, cannot be alienated separately from the tenement. It cant be the object of mortgage and exists even if not annotated. (11) It is indivisible. (618) (12) It has permanence.

As to WON its existence is indicated

Nonapparent Show external indication their existence (Art.615) no of

* In general, negative easements are nonapparent.

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servient

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Negative Prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist (Art.616) (a) Positive easementsfrom the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate (b) Negative easementsfrom the day on which the owner of the dominant estate forbade, by an instrument acknowledged before e notary public, the owner of the servient estate, from executing an act which would be lawful without the easement. (Art.621) * Prescription does not require good faith or just title. General rules for acquisitive prescription of ownership and other real rights do not apply to it. * There must however be adverse possession or exercise of the easement. (3) By deed of recognition (Art.623) (4) By judgment (Art.623) final If easement been acquired no proof existence available, easement is that cannot acquired prescription has but of is and one be by

Positive Imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself (Art.616)

General Rules Relating to Servitudes (1) No one can have a servitude over his own property (2) A servitude cannot consist in doing (3) There cannot be a servitude over another servitude (4) A servitude must be exercised civiliter, in a way least burdensome to the owner of the land. (5) A servitude must have a perpetual cause. Modes of Acquiring Easements (1) By Title a juridical act which gives rise to the servitude such as the law (e.g. donation, contracts and wills) All easements - continious and apparent (Art.620) - continous non-apparent easements (Art.622) and

As to owner

duty

of

discontinous easements, whether apparent or non-apparent * Discontinuous easement can only be acquired by title and not by prescription. (2) Prescription 10 years By of Continuous apparent easements (Art.620) The time reckoning prescription: and

(5) By apparent sign established by the owner of 2 adjoining estates. The existence of an apparent sign of easement between two estates,

for

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established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, as the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons. (Art. 624.)

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Easement of light and view go together. Acquisition of easements is by title or by prescription. The visible and permanent sign of an easement is the title that characterizes its existence. Existence of the apparent sign had the same effect as a title of acquisition of the easement of the light and view upon death of original owner. (Amor vs. Florentino) An easement of a right of way cannot be acquired through prescription because possession of right of way is intermittent and discontinuous. Acquisitive prescription requires that the possession be continuous or uninterrupted (Art. 1118). (Ronquillo v Roco) Rights and Obligations of Owners of Dominant and Servient Estates Art. 625. Upon establishment of an easement, all the rights necessary for its use are considered granted. (1) Rights of the dominant estate (EWW) (a) To use the easement (Art.626) and exercise all rights necessary for the use (Art. 627) (b) To use at his expense all necessary works for the use and preservation of the easement. (Art. 627) (c) In a right of way, to ask for change in width of easement sufficient for needs of dominant estate. Such right of way may be demanded when there is absolutely no access or even when there is one, it is difficult or grossly insufficient. Art. 651 also provides that the width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time. (Encarnacion v CA)

Cases The road is clearly a servitude voluntarily constituted in favor of the community under Art. 531. Having been devoted by NNSC to the use of the public in general, the road is charged with public interest. And while so devoted. NNSC may not establish discriminatory exceptions against any private persons. (North Negros Sugar Co. vs Hidalgo) Since the construction of the church, there had been a side door in the wall through which the worshippers attending mass enter and leave, passing and entering the land in question. As this use of the land has been continuous, it is evident that the church has acquired a right to such use by prescription, in view of the time that has elapsed since the church was built and dedicated to religious worship, during which period the Municipality has not prohibited the passage over the land by persons who attend services held by the church. (Municipality of Dumangas vs Bishop of Jaro)

(2)Obligations of dominant estate (UNAC) (a) To use easement for the benefit of immovable and in the manner originally established. (Art. 626) (b) To notify owner of the servient estate before making repairs in manner inconvenient to servient estate. (Art. 627) (c) Not to alter easement or render it burdensome.

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(d) If there are several dominant estates unless he renounces his interest: to contribute the expenses of works necessary for use and preservation servitude. (Art. 628) Owner of dominant estate has the right to use accessory servitudes or those necessary for the use of other servitudes regarded as principals ones. Works must be executed in the manner of least inconvenience to the servient who cannot recover indemnity for the inevitable damages that may be suffered by the servient owner. If dominant owner violates restrictions, he can be compelled to restore the things their original condition and to pay indemnity for the damages. If dominant tenement is alienated, transferee can be required to restore things their original condition but he cannot be required to pay indemnity because this is a personal liability of the former owner.

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If cause for cessation of merger is inherent like nullity or rescission, easement is reestablished. If extrinsic, there is no revival. If the owner of the merged estate sells one of the estates later, easement is not reestablished.

(2)Non- user for 10 years (a) Computation of period (1) Discontinuous easements: counted from the day they ceased to be used (2) Continuous easements: counted from the day an act adverse to the exercise took place (b) Use by a co-owner of the dominant estate bars prescription with respect to others (Art.633) (c) Servitudes not yet exercised cannot be extinguished by non-user Non user must be due to abstention by dominant owner and not to fortuitous event. If dominant estate is used in common, exercise of the easement of one of the co owner inures to the benefit of all others and preserves the easement which is indivisible. Erection of works incompatible with the exercise of the easement or totally obstructing the servitude, agreed to by the owner of the dominant estate, amounts to tacit renunciation and extinguishes the servitude. Right or power to claim exercise of the legal servitude do not prescribe. Impossibility of use

(3) Rights of the servient estate (RC) (a) To retain ownership and use of his property (Art 630) (b) To change the place and manner of the use of the easement (4)Obligations of the servient estate (IC) (a) Not to impair the use of the easement. (Art. 629) (b) To contribute proportionately to expenses to use the easement [Art 628(2)] Owner of servient tenement must abstain from rendering the use of the easement more inconvenient to the owner of the dominant estate. If owner of the servient estate performs act or constructs works impairing the use of the servitude, the owner of the dominant tenement may ask for the destruction of such works and restoration with damages. Injunction is another remedy.

(3)

Modes of Extinguishment of Easements (Art.631) (MINERRO) (1)Merger must be absolute, perfect and definite, not merely temporary.

When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number; This mode arises from the condition of the tenements and only suspends the servitude unlit such time when it can be used again. 10 years cap for suspension, otherwise, extinguished by prescription as previously provided. Eg. Flooding of servient tenement over which a right of way exists.

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(4) Expiration of term or fulfillment of resolutory condition By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional; Renunciation dominant estate of owner of the XI. LEGAL EASEMENTS

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DEFINITION Art. 634. Imposed or mandated by law and which have for their object either public use or the interest of private persons, and thereby become a continuing property right. 2. KINDS (as to their use or object) (1) Public legal easements for public or communal use (2) Private legal easements for the interest of private persons or for private use including: Waters Right of way Party Wall Light & View Drainage Intermediate Distances Against Nuisance Lateral & Subjacent Support (1)Laws Governing Legal Easements Generally, special laws and the CC govern easements but note that private legal easements may be governed by agreement of the interested parties whenever the law does not prohibit it and no injury is suffered by a third person. (a) Those established for the use of water or easements relating waters (Arts. 637 648) (1) Natural drainage of waters with stones or earth carried with them waters which form in upper tenements and flow to the lower ones by force of nature and not by those caused by acts of man. Owner of tenements cannot construct works to increase the burden of this servitude. Owner of the lower tenements cannot make works which impede the servitude. But he can construct work necessary to prevent damage to himself provided it does not impede the servitude and he does not cause damage to other tenements Rain water from roofs of buildings and water from houses must be received on ones own land. It is the duty of the owner of the building to direct the rainwater to a public place or to establish an easement of passage of water through a neighboring tenement.

(5)

(6)

It must be specific, clear, express. Fact that owners of the dominant estate refrained from claiming the servitude without any positive act to imply a real waiver or renunciation does not bring the case within the provisions of this article. Occurs only in voluntary easements. Redemption agreed between the owners. upon

By the redemption agreed upon between the owners of the dominant and servient estates. -Voluntary -Stipulated conditions, which extinguish easements.

(7) Other causes not mentioned (a) Annulment or rescission or cancellation of the title constituting the easement. (b) Termination of the right of grantor to create the easement ( e.g. redemption of the property sold a retro because of the exercise of the right of conventional redemption ( Art. 1618) (c) Abandonment of the servient estate (d) Eminent domain (e) Special cause of extinction of legal right of way, the opening of an adequate outlet to the highway extinguishes the easement, if servient owner makes a demand for such extinguishment.(Art. 655) (f) Registration of the servient estate as FREE (g) Permanent impossibility to make use of the easement.

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Case The dikes are continuous easements since it does depend upon the act of man, but is due to gravity. Being such, it is subject to the extinction to the nonuser (20 years in the Old Code and 10 years in the New Code). (Ongsiaco v. Ongsiaco) (2) Easements on lands along riverbanks For public use: 3m zone along margins for navigation, floatage, fishing and salvage. If navigable Towpath easement for navigation and floatage If private land expropriate, since it is for private use. (3) Abutment of Land

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Compulsory easements for drawing water or for watering animals can be imposed only for reasons of public use in favor of a town or village, after payment of the proper indemnity. (Art. 640) Easements for drawing water and for watering animals carry with them the obligation of the owners of the servient estates to allow passage to persons and animals to the place where such easements are to be used, and the indemnity shall include this service. (Art. 641) Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for watering places, resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by the usages and customs of the place. (Art. 657) Without prejudice to rights legally acquired, the animal path shall not exceed the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters. Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this Section and those of Articles 640 and 641 shall be observed. In this case the width shall not exceed 10 meters. (6) Stop lock and sluice gate

Non owner builder of the dam pay owner of land for the abutment of the land. abutment part of dam that extends to the riverbank or dam if no easement previously established, and the dam floods the land injured owner or his representative can remove it as private nuisance. (4) Aqueduct

Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through the intervening estates, with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend. (Art. 642.) Obligation of the dominant estate: (1) To prove that he can dispose of the water and that it is sufficient for the use for which it is intended; (2) To show that the proposed right of way is the most convenient and least onerous to third persons; (3) To indemnify the owner of the servient estate The easement of aqueduct for private interest cannot be imposed on buildings, courtyards, annexes, or outhouses, or on orchards or gardens already existing. For legal purposes, the easement of aqueduct shall be considered as continuous and apparent. (5) Drawing waters watering materials and

Art. 647. One who for the purpose of irrigating or improving his estate, has to construct a stop lock or sluice gate in the bed of the stream from which the water is to be taken, may demand that the owners of the banks permit its construction, after payment of damages, including those caused by the new easement to such owners and to the other irrigators. (a)Easement of right of way Requisites before demanding a right of way (Articles 649-650) (a) owner, or anyone with a real right to cultivate, or use immovable (b) not due to acts of the proprietor of the dominant estate (c) surrounded by immovables belonging to others, without adequate outlet to public highway i. absolutely no access

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ii. difficult or dangerous to use (d) right of way claimed is the least prejudicial to the servient estate (e) payment of the proper indemnity (i) permanent passage value of the land (ii) without permanent passage payment of damages To justify the imposition of this servitude, there must be a real necessity for it. Mere convenience is not enough. Even when there is a necessity, if it can be satisfied without imposing the servitude, servitude should not be imposed. Owner can not by his own act isolate his property from the public highway and then claim an easement of way through an adjacent estate. Access to highway may be demanded: (a) when there is absolutely no access to a public highway (b) when even if there is one, it is difficult or dangerous to use or is grossly insufficient Payment of the value of the land for permanent use of easement does not mean an alienation of the land occupied. Criterion of the least prejudice to the servient estate must prevail over the criterion of the shortest distance. (Quimen v. Quimen) Before judicial decision, establishment of any road would constitute an invasion of the land with all consequences resulting from such transgression. It is the needs of the dominant estate which determines the width of the passage. Servitude may thus be modified after it has already been established.

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servitude may be demanded with the payment of the indemnity. On the other hand, if grantor/ exchanger/ vendors property becomes isolated, he must pay indemnity.

Art. 654. If the right of way is permanent, the necessary repairs shall be made by the owner of the dominant estate. A proportionate share of the taxes shall be reimbursed by said owner to the proprietor of the servient estate. Obligations of praedium dominans; necessary repairs, proportionate share of taxes.

Art. 655. If the right of way granted to a surrounded estate ceases to be necessary because its owner has joined it to another abutting on a public road, the owner of the servient estate may demand that the easement be extinguished, returning what he may have received by way of indemnity. The interest on the indemnity shall be deemed to be in payment of rent for the use of the easement. The same rule shall be applied in case a new road is opened giving access to the isolated estate. In both cases, the public highway must substantially meet the needs of the dominant estate in order that the easement may be extinguished. Extinguishment Not Ipso Jure (only) owners of the servient estate has to ask for it and return indemnity. Owner of the dominant estate may not ask for the return of the indemnity unless servient owner asks for the extinguishment. Offset interest of the indemnity with rentals of the land.

Whenever a piece of land acquired by sale, exchange or partition, is surrounded by other estates of the vendor, exchanger, or co-owner, he shall be obliged to grant a right of way without indemnity. In case of a simple donation, the donor shall be indemnified by the donee for the establishment of the right of way. (Art. 652) Servitude without indemnity is considered as a tacit condition of the sale, exchange or partition, but not implied in a simple donation. When the right of way originally established without indemnity should disappear or become useless, a legal

Art. 656. If it be indispensable for the construction, repair, improvement, alteration or beautification of a building, to carry materials through the estate of another, or to raise therein scaffolding or other objects necessary for the work, the owner of such estate shall be obliged to permit the act, after receiving payment of the proper indemnity for the damage caused him. This may be demanded by owner and usufructuary. Word indispensable should not be understood as indicating that it would be impossible to construct or repair the building. It is enough that

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it would be extremely difficult to do so without the easement. Animal Path Without prejudice to rights legally acquired, the animal path shall not exceed the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters. Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this Section and those of articles 640 and 641 shall be observed. In this case the width shall not exceed 10 meters.(570a) Cases A voluntary easement of right of way could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements, not voluntary easements. (La Vista v. CA) An easement of right of way can be established through continued use. (Vda. de Baltazar v CA) (c) Easement of party wall

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Art. 659. The existence of an easement of party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary: (1) In dividing walls of adjoining buildings up to the point of common elevation; (2) In dividing walls of gardens or yards situated in cities, towns, or in rural communities; (3) In fences, walls and live hedges dividing rural lands. Co-ownership must be accepted unless the contrary appears from the title showing that the entire wall belongs exclusively to one of the property owners or unless there is an exterior sign to destroy such presumption.

Art. 658. The easement of party wall shall be governed by the provisions of this Title, by the local ordinances and customs insofar as they do not conflict with the same, and by the rules of coownership Party wall is a co-ownership in a special class by itself: (1) It is indivisible. (2) The part pertaining to each coowner can be materially designated. (3) Rights of a co-owner of a party wall are greater than those of an ordinary co-owner and with respect to increasing the height of the wall. Wall may be owned in common by the adjoining owners either form its construction or by a subsequent act. Each owner can insert the beams of his building in the wall to the extent of its entire thickness. A party wall is one which is built by common agreement by getting land from the adjoining tenements in equal parts. Each owner may use the wall but only to the extent of onehalf of its thickness.

Art. 660. It is understood that there is an exterior sign, contrary to the easement of party wall: (1) Whenever in the dividing wall of buildings there is a window or opening; (2) Whenever the dividing wall is, on one side, straight and plumb on all its facement, and on the other, it has similar conditions on the upper part Art. 657. Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for watering places, resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by the usages and customs of the place. Without prejudice to rights legally acquired, the animal path shall not exceed in any case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters. Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this Section and those of Articles 640 and 641 shall be observed. In this case the width shall not exceed 10 meters. (570a), but the lower part slants or projects outward; (3) Whenever the entire wall is built within the boundaries of one of the estates; (4) Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others; (5) Whenever the dividing wall between courtyards, gardens and tenements is constructed in such a way that the coping sheds the water upon only one of the estates;

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(6) Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other; (7) Whenever lands inclosed by fences or live hedges adjoin others which are not inclosed. In all these cases, the ownership of the walls, fences or hedges shall be deemed to belong exclusively to the owner of the property or tenement which has in its favor the presumption on any one of these signs. (573) Art. 661. Ditches or drains opened between two estates are also presumed as common to both, if there is no title or sign showing the contrary. There is a sign contrary to the partownership whenever the earth or dirt removed to open the ditch or to clean it is only on one side thereof, in which case the ownership of the ditch shall belong exclusively to the owner of the land having this exterior sign in its favor. Art. 662. The cost of repairs and construction of party walls and the maintenance of fences, live hedges, ditches, and drains owned in common, shall be borne by all the owners of the lands or tenements having the party wall in their favor, in proportion to the right of each. Nevertheless, any owner may exempt himself from contributing to this charge by renouncing his part-ownership, except when the party wall supports a building belonging to him. Art. 663. If the owner of a building, supported by a party wall desires to demolish the building, he may also renounce his part-ownership of the wall, but the cost of all repairs and work necessary to prevent any damage which the demolition may cause to the party wall, on this occasion only, shall be borne by him. Art. 664. Every owner may increase the height of the party wall, doing at his own expense and paying for any damage which may be caused by the work, even though such damage be temporary. The expenses of maintaining the wall in the part newly raised or deepened at its foundation shall also be paid for by him; and, in addition, the indemnity for the increased expenses which may be

CIVIL LAW
necessary for the preservation of the party wall by reason of the greater height or depth which has been given it. If the party wall cannot bear the increased height, the owner desiring to raise it shall be obliged to reconstruct it at his own expense and, if for this purpose it be necessary to make it thicker, he shall give the space required from his own land. Art. 665. The other owners who have not contributed in giving increased height, depth or thickness to the wall may, nevertheless, acquire the right of part-ownership therein, by paying proportionally the value of the work at the time of the acquisition and of the land used for its increased thickness. Art. 666. Every part-owner of a party wall may use it in proportion to the right he may have in the co-ownership, without interfering with the common and respective uses by the other co-owners. Each part-owner can use the party wall only in proportion to his interest (d) Easement of Light and View Art. 667. No part-owner may, without the consent of the others, open through the party wall any window or aperture of any kind. Such act would imply the exercise the right of ownership by the use the entire thickness of the wall. would be an invasion of the right the other part owners. of of It of

Art. 668. The period of prescription for the acquisition of an easement of light and view shall be counted: (1) From the time of the opening of the window, if it is through a party wall; or (2) From the time of the formal prohibition upon the proprietor of the adjoining land or tenement, if the window is through a wall on the dominant estate. Art. 669. When the distances in Article 670 are not observed, the owner of a wall which is not party wall, adjoining a tenement or piece of land belonging to another, can make in it openings to admit light at the height of the ceiling joints or immediately under the ceiling, and of the size of thirty centimeters square, and, in every case, with an iron grating imbedded in the wall and with a wire screen.

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Nevertheless, the owner of the tenement or property adjoining the wall in which the openings are made can close them should he acquire part-ownership thereof, if there be no stipulation to the contrary. He can also obstruct them by constructing a building on his land or by raising a wall thereon contiguous to that having such openings, unless an easement of light has been acquired. Openings allowed are for the purpose of admitting light. They can be made only in the walls of buildings and not in the walls separating gardens or yards because they have no need for such openings The period to require the closing of the illegal opening begins to run from the moment such opening is made. But it is only the action to compel the closure which prescribes Although action to compel the closing has prescribed, this does not mean servitude has been acquired by person who opened them. Servitude is negative and period for acquisitive prescription will begin to run only from the time that the owner asserting the servitude has forbidden the owner of adjoining tenement from doing something he latter could lawfully do without the servitude.

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rise to the easement of light and view by prescription. Art. 672. The provisions of Article 670 are not applicable to buildings separated by a public way or alley, which is not less than three meters wide, subject to special regulations and local ordinances. Art. 673. Whenever by any title a right has been acquired to have direct views, balconies or belvederes overlooking an adjoining property, the owner of the servient estate cannot build thereon at less than a distance of three meters to be measured in the manner provided in Article 671. Any stipulation permitting distances less than those prescribed in Article 670 is void. Art. 673. Whenever by any title a right has been acquired to have direct views, balconies or belvederes overlooking an adjoining property, the owner of the servient estate cannot build thereon at less than a distance of three meters to be measured in the manner provided in Article 671. Any stipulation permitting distances less than those prescribed in Article 670 is void. This article refers to a true servitude. Acquisition may be through contact, testament, or prescription. Distance may be increased by stipulation of the parties. It may also be extended by prescription. (e)Drainage of Buildings Art. 674. The owner of a building shall be obliged to construct its roof or covering in such manner that the rain water shall fall on his own land or on a street or public place, and not on the land of his neighbor, even though the adjacent land may belong to two or more persons, one of whom is the owner of the roof. Even if it should fall on his own land, the owner shall be obliged to collect the water in such a way as not to cause damage to the adjacent land or tenement. Falling water is res nullius and has no owner. Every owner of a house or building would have aright to dispose of it in any manner even to the prejudice of neighbors had it not been for the provisions in this Code Last sentence is an exception to Art 637 which requires lower tenements to receive water flowing naturally from higher tenements.

Art. 670. No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards an adjoining land or tenement can be made, without leaving a distance of two meters between the wall in which they are made and such contiguous property. Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of sixty centimeters. The nonobservance of these distances does not give rise to prescription. Direct View that which is obtained from a wall parallel to the boundary line, such that from the opening in such wall, it is possible to see the adjoining tenement without the necessity of putting out or turning ones head Side or oblique viewthat which is obtained from a wall a an angle with the boundary line such that in order to see the adjoining tenement, it is necessary to put out or turn ones head to the left or to the right Mere opening of windows in violation of the present article does not give

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Art. 675. The owner of a tenement or a piece of land, subject to the easement of receiving water falling from roofs, may build in such manner as to receive the water upon his own roof or give it another outlet in accordance with local ordinances or customs, and in such a way as not to cause any nuisance or damage whatever to the dominant estate. Receive water through (1) another roof (2) another outlet In accordance with local ordinances or customs Not a nuisance to the dominant estate

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any damage to the neighboring lands or tenements. Art. 679. No trees shall be planted near a tenement or piece of land belonging to another except at the distance authorized by the ordinances or customs of the place, and, in the absence thereof, at a distance of at least two meters from the dividing line of the estates if tall trees are planted and at a distance of at least fifty centimeters if shrubs or small trees are planted. Every landowner shall have the right to demand that trees hereafter planted at a shorter distance from his land or tenement be uprooted. The provisions of this article also apply to trees which have grown spontaneously. (591a) Art. 680. If the branches of any tree should extend over a neighboring estate, tenement, garden or yard, the owner of the latter shall have the right to demand that they be cut off insofar as they may spread over his property, and, if it be the roots of a neighboring tree which should penetrate into the land of another, the latter may cut them off himself within his property. Owner of the neighboring tenement can cut the roots without necessity of notice to the owner of the trees. But as to the branches, it is necessary to as that they be cut.

Art. 676. Whenever the yard or court of a house is surrounded by other houses, and it is not possible to give an outlet through the house itself to the rain water collected thereon, the establishment of an easement of drainage can be demanded, giving an outlet to the water at the point of the contiguous lands or tenements where its egress may be easiest, and establishing a conduit for the drainage in such manner as to cause the least damage to the servient estate, after payment of the property indemnity. (f) Intermediate Distances and Works for Certain Constructions and Plantings

Art. 677. No constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions required in special laws, ordinances, and regulations relating thereto. Art. 678. No person shall build any aqueduct, well, sewer, furnace, forge, chimney, stable, depository of corrosive substances, machinery, or factory which by reason of its nature or products is dangerous or noxious, without observing the distances prescribed by the regulations and customs of the place, and without making the necessary protective works, subject, in regard to the manner thereof, to the conditions prescribed by such regulations. These prohibitions cannot be altered or renounced by stipulation on the part of the adjoining proprietors. In the absence of regulations, such precautions shall be taken as may be considered necessary, in order to avoid

Art. 681. Fruits naturally falling upon adjacent land belong to the owner of said land. (g) Easement against Nuisance Art. 682. Every building or piece of land is subject to the easement which prohibits the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes. Art. 683. Subject to zoning, health, police and other laws and regulations, factories and shops may be maintained provided the least possible annoyance is caused to the neighborhood. Nuisancethat class of wrongs which arise from unreasonable, unwarranted, or unlawful use by a person of his own property and which produces material annoyance, inconvenience, discomfort,

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or harm that the law will presume a consequent damage. Whether the effects of the use of ones property constitutes a nuisance depends upon the circumstances. Their penetration into another tenement in a limited measure is permissible. Even if these effects cause material injury, they would constitute a nuisance if they result from the utilization of a tenement in a manner which is usual or current in the locality. (h) Easement of Lateral Subjacent Support and XII. VOLUNTARY EASEMENTS Art. 684. No proprietor shall make such excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support. Owner has a right to excavate on his own land up to the boundary line of the building land. This easement prevents him from excavating so close as to deprive the adjoining estate of its natural support and cause it to crumble. There are cases where surface belongs to one person and substrata may belong to or be lawfully used by others. This is where easement of subjacent support exists. Owners of rights below the surface may excavate but this imposes upon them the duty to refrain from removing such sufficient support which will protect the surface from subsiding

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Art. 687. Any proprietor intending to make any excavation contemplated in the three preceding articles shall notify all owners of adjacent lands. Notice enables the adjoining owner to take the necessary precautions to protect their lands and buildings. It must be sufficient to inform the nature and the extent of the proposed excavation. Although person making the excavation has given notice, he is bound to exercise reasonable care and skill so as not to cause damage.

Art. 688. Every owner of a tenement or piece of land may establish thereon the easements which he may deem suitable, and in the manner and form which he may deem best provided he does not contravene the laws, public policy or public order Art. 690. Whenever the naked ownership of a tenement or piece of land belongs to one person and the beneficial ownership to another, no perpetual voluntary easement may be established thereon without the consent of both owners. Art. 691. In order to impose an easement on an undivided tenement, or piece of land, the consent of all the coowners shall be required. The consent given by some only, must be held in abeyance until the last one of all the co-owners shall have expressed his conformity. But the consent given by one of the coowners separately from the others shall bind the grantor and his successors not to prevent the exercise of the right granted. Art. 693. If the owner of the servient estate should have bound himself, upon the establishment of the easement, to bear the cost of the work required for the use and preservation thereof, he may free himself from this obligation by renouncing his property to the owner of the dominant estate.

Remedies for violation: (1) Action for damages (2) Injunction Action may be maintained against anyone who causes the injury whether he is the owner or not. Contractor is liable jointly with the owner of the land. It is the person who made the excavation which causes the injury and not the person in possession when the injury occurs, who is liable for damages. Art. 685. Any stipulation or testamentary provision allowing excavations that cause danger to an adjacent land or building shall be void. Art. 686. The legal easement of lateral and subjacent support is not only for buildings standing at the time the excavations are made but also for constructions that may be erected.

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Who may establish voluntary easements: The OWNER possessing capacity to ENCUMBER property may constitute voluntary servitudes. (Art. 688) The usufructuary, and even the possessor in good faith, does not have the right to do so because the creation of a servitude is a disposition of part of the right of ownership, and no one but an owner may do this. A general capacity to contract is not sufficient. If there are various owners, ALL must CONSENT, but consent once given is irrevocable. (Art. 690 and 691) Hence, their consent need not be simultaneous. In whose favor they are established: (a)Praedial Servitudes For the owner of the dominant estate For any other person having any juridical relation with the dominant estate, if the owner ratifies it. (b)Personal Servitudes For anyone capacitated to accept In case of property under usufruct The usufructuary must not be prejudiced (Art 689) Rights and Obligations These are determined by the (1) Title, and (2) Possession (in case of prescription enlarging or diminishing the initial voluntary easement) (Art. 692) Where the owner bound himself to pay for the maintenance or do some service he may abandon his tenement and relieve himself of his obligation (Art. 693) To produce the transmission of ownership over the tenement abandoned, the abandonment must be made in the proper juridical form required for the transmission of the ownership of immovable property.

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(2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property. Classification of Nuisance Nature 1. Nuisance Per Se or at Law 2. Nuisance Per Accidens or in Fact Scope Of Their Injurious Effects 1. Public 2. Private 3. Mixed Nuisance Per Se (Nuisance at Law) nuisance at all times and under any circumstances, REGARDLESS OF LOCATION OR SURROUNDINGS. Nuisance Per Accidens (Nuisance in Fact) One that becomes a nuisance by reason of circumstances and surroundings Public Nuisance It causes hurt, inconvenience, or injury to the public, generally, or to such part of the public as necessarily comes in contact it public nuisance=common nuisance It is a direct encroachment upon public rights or property which results injuriously to the public Private Nuisance One which violates only private rights and produces damages to but one or a few persons Liability of Creator of Nuisance General Rule: he who creates a nuisance is liable for the resulting damages and, ordinarily, his liability continues as long as the nuisance continues. He whose duty is to abate a nuisance should answer for the consequences resulting from its continuance No one is to be held liable for a nuisance which he cannot himself physically abate All parties to the creation or maintenance of a nuisance per se are responsible for its effect without limitation of conditions or of time. Liability of Transferees To render him liable, he must knowingly continue the nuisance, and generally, he is not liable for

XIII. NUISANCE Art. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which: (HOSDU) (1) Injures or endangers the health or safety of others; or

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continuing it in its original form, unless he has been notified of its existence and requested to remove it, or has actual knowledge that it is a nuisance and injurious to the rights of others. Nature of liability is solidary Art. 697. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. Art. 698. Lapse of time cannot legalize any nuisance, whether public or private. No Prescription The creation and maintenance of a public nuisance is punishable criminally hence, it should prevent the acquisition of a right to maintain it. Art. 699. The remedies against a public nuisance are: (1) A prosecution under the Penal Code or any local ordinance (only for public nuisance): or (2) A civil action; or (3) Abatement, without judicial proceedings. Judgment With Abatement Art. 700. The district health officer shall take care that one or all of the remedies against a public nuisance are availed of. Art. 701. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be commenced by the city or municipal mayor. Art. 702. The district health officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against a public nuisance. Art. 703. A private person may file an action on account of a public nuisance, if it is specially injurious to himself. Special Injury to Individual GENERAL RULE: a public nuisance gives no right of action to any individual but must be abated by a proceeding instituted in the name of the State EXCEPTION: an individual who suffered some special damage by reason of a public nuisance, different from that sustained by the general public, may maintain a suit in equity for an injunction to abate it, or an action for damages

CIVIL LAW
In other words, a public nuisance is not actionable by an individual unless and until it becomes as to him, a private nuisance; i.e., until he suffers some special and definite harm. Art. 704. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary: (1) That demand be first made upon the owner or possessor of the property to abate the nuisance; (2) That such demand has been rejected; (3) That the abatement be approved by the district health officer and executed with the assistance of the local police; and (4) That the value of the destruction does not exceed three thousand pesos. Right of Individual to Abate a Public Nuisance Requisites 1. Must be exercised only in cases of urgent or extreme necessity 2. Nuisance must be actually existing at the time when abatement is undertaken 3. The summary abatement should be resorted to within a reasonable time after knowledge of the nuisance is acquired or should have been acquired by the person entitled to abate 4. Must give a reasonable notice of his intention; a demand must be made 5. The means employed must be reasonable 6. The abatement must be approved by the district health officer 7. The property must not be destroyed unless it is absolutely necessary to do so; the civil code, however, provides a limitation, that the value of destruction shall not exceed three thousand pesos 8. The right must always be exercised with the assistance of the local police Art. 705. The remedies against a private nuisance are: (1) A civil action; or (2) Abatement, without judicial proceedings.

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Right to Damages A person may maintain an action at law for damages caused by a nuisance The payment of damages is generally a mere reparation for past injuries, and not an authority to continue the wrong. each repetition of it gives rise to a new cause of action Defenses to Action Public Necessity Estoppel Art. 706. Any person injured by a private nuisance may abate it by: removing, or if necessary, by destroying the thing which constitutes the nuisance o without committing a breach of the peace or doing unnecessary injury o procedure for extrajudicial abatement of a public nuisance by a private person be followed Who may sue on Private Nuisances Ownership of the legal title is not necessary. Even a possessor may sue Art. 707. A private person or a public official extrajudicially abating a nuisance shall be liable for damages: (1) If he causes unnecessary injury; or (2) If an alleged nuisance is later declared by the courts to be not a real nuisance. Remedies of Property Owner He may bring an action for replevin, or enjoin its sale and damages if it is has been sold; or action to enjoin private parties from proceeding to abate a supposed nuisance Ask court to determine WON it is indeed a nuisance

CIVIL LAW
title of ownership and of real rights which affect it and even where the capacity of free disposition on the part of an individual is modified Purposes of the Principle of Publicity To give notice of the true status of the property To record transmissions and modifications of real rights To prevent fraud To guarantee the effectivity of rights Art. 709. The titles of ownership, or of other rights over immovable property, which are not duly inscribed or annotated in the Registry of Property shall not prejudice third persons. Art. 710. The books in the Registry of Property shall be public for those who have a known interest in ascertaining the status of the immovables or real rights annotated or inscribed therein. Art. 711. For determining what titles are subject to inscription or annotation, as well as the form, effects, and cancellation of inscriptions and annotations, the manner of keeping the books in the Registry, and the value of the entries contained in said books, the provisions of the Mortgage Law, the Land Registration Act, and other special laws shall govern.

XV. DIFFERENT MODES ACQUIRING OWNERSHIP

OF

TITLE - the remote cause of acquisition Every juridical right which gives a means to the acquisition or real rights but which in itself is insufficient MODE- the proximate cause of acquisition The specific cause which produces dominion and other real rights as a result of the co-existence of special status of things, capacity, and intention of persons and fulfillment of the requisites of law Modes of acquiring (POSTDI) 1) Occupation 2) Intellectual Creation 3) Donation 4) Prescription 5) Succession 6) Tradition ownership

XIV. REGISTRY OF PROPERTY

Art. 708. The Registry of Property has for its object the inscription or annotation of acts and contracts relating to the ownership and other rights over immovable property. Concept The Registry of Real Property may be defined as a public center where the true condition of real estate is made clear by registering all transferable

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XVI. PRESCRIPTION It is the mode by which one acquires ownership and other real rights thru lapse of time; also a means by which one loses ownership, rights & actions; retroactive from the moment period began to run Kinds: 1. Acquisitive 1. Extinctive Comparison between Acquisitive Prescription and Extinctive Prescription Acquisitive Extinctive Prescription Prescription Usurpacion Prescription It is the possessor One looks at the who does the act neglect of the owner/ his omission Expressly vests the Statute of property and limitation that raised a new title merely bars the in the occupant right of action Important feature Important feature is the claimant in is the owner out of possession possession Who may acquire by prescription: a. person who are capable of acquiring property by other legal modes b. STATE c. minors through guardians of personally Against whom prescription run: 1. minors & incapacitated person who have guardians 2. absentees who have administrators 3. persons living abroad who have administrators 4. juridical persons except the state with regards to property not patrimonial in character 5. between husbands & wife 6. between parents & children (during minority/insanity) 7. between guardian & ward (during guardianship) 8. between co-heirs/co-owners 9. between owner of property & person in possession of property in concept of holder Things subject to prescription: all things within the commerce of men a. private property b. patrimonial property of the state

CIVIL LAW
Things not subject to prescription: 1. public domain 2. in transmissible rights 3. movables possessed through a crime 4. registered land Renunciation of prescription: persons with capacity to alienate may renounce prescription already obtained but not the right to prescribe in the future may be express or tacit prescription is deemed to have been tacitly renounced; renunciation results from the acts w/c imply abandonment of right acquired creditors & persons interested in making prescription effective may avail themselves notwithstanding express or tacit renunciation Prescription Real Rights Of Ownership & Other

Kinds of Acquisitive prescription 1. ordinary 2. extra-ordinary Requisites for ordinary prescription: 1. possession in good faith 2. just title 3. within time fixed by law 4 years for movables 8 years for immovables 4. in concept of an owner 5. public, peaceful, uninterrupted Requisites for extra-ordinary prescription: 1. just title is proved 2. within time fixed by law 10 years for movables 30 years for immovables 3. in concept of an owner 4. public, peaceful, uninterrupted GOOD FAITH- Reasonable belief that person who transferred thing is the owner & could validly transmit ownership -Must exist throughout the entire period required for prescription JUST TITLE (TRUE & VALID) must be proved & never presumed a) Titulo Colorado b) Titulo putativo title must be one which would have been sufficient to

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transfer ownership if grantor had been the owner through one of the modes of transferring ownership but there is vice/defect in capacity of grantor to transmit ownership Prescription of Actions

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IN CONCEPT OF OWNER possession not by mere tolerance of owner but adverse to that of the owner claim that he owns the property PUBLIC, PEACEFUL & UNINTERRUPTED Must be known to the owner of the thing Acquired & maintained w/o violence Uninterrupted (no act of deprivation by others) in the enjoyment of property

Interruption a) Natural -through any cause, possession ceases for more than 1 year -if 1 year of less as if no interruption b) Civil -produced by judicial summons; except void for lack of legal solemnities plaintiff desist from complaint/allow proceedings to lapse possessor is absolved from complaint i. express or tacit renunciation ii. possession in wartime RULES IN COMPUTATION OF PERIOD: a. Present possessor may tack his possession to that of his grantor or predecessor in interest b. Present possessor presumed to be in continuous possession I intervening time unless contrary is proved c. First day excluded, last day included Tacking Period there must be privity between previous & present possessor possible when there is succession of rights if character of possession different: predecessor in bad faith possessor in good faith use extraordinary prescription

By lapse of time fixed by law 30 years -action over immovables from time possession is lost 10 years -mortgage action -upon written contract -upon obligation created by law -upon a judgement 8 years -action to recover movables from time possession is lost 6 years -upon an oral contract -upon a quasi-contract 5 years -actions if periods are not fixed by law 4 years -upon injury to rights of plaintiff -upon a quasi-delict 1 year -for forcible entry & detainer -for defamation Rights not extinguished by prescription: 1. demand right of way 2. abate public /private nuisance 3. declare contract void 4. recover property subject to expressed trust 5. probate of a will 6. quiet title XVII. TRADITION Requisites: 1. Pre-existence of right in estate of grantor 2. Just cause or title for the transmission 3. Intention- of both grantor and grantee 4. Capacity- to transmit and to acquire 5. An act giving it in outward form, physically, symbolically, or legally Legal Maxim: Non nudis pactis, sed tranditione, dominia rerum transferentur (Not by mere agreement but by delivery, is ownership transferred) Kinds of Tradition: a. Real Tradition b. Constructive Tradition i. Symbolic Delivery ii. Delivery by Public Instrument iii. Traditio Longa Manu- long hand; placed in the sight of

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vendee so that he can take possession of the property anytime iv. Traditio Brevi Manu- short hand; transferee already in possession of the property but not as owner v. Traditio Constitum Possessorium- owner remains in possession but not as owner e.g. lease vi. Quasi-Traditionsubject matter: property right; e.g. right to collect credit vii. Tradition by operation of law XVIII. LEASE General Characteristics of Every Lease (1) Temporary duration (2) Onerous (3) Price is fixed according to contract duration Kinds of Lease (1) Lease of thingsmovables and immovables no lease for more than 99 years shall be valid (2) Lease of work or contract of labor no relation of principal and agent does not exist between them. (3) Lease of Services no principle of representation unlike in agency The will of both parties is necessary for the extinguishment of the obligation (i) Lease of Service Manner of paying the price The price is paid in relation to the duration of the labor or service If the lessor workstation under the direction of the lessee, receiving instructions from him on the manner of rendering Contract for a piece of work In proportion to the work accomplished service labor Lease of things (1) Concept or

CIVIL LAW

Art. 1643. In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing for a price certain, and for a period which may be definite or indefinite. However, no lease for more than ninetynine years shall be valid. (2) Consumable things cannot be the subject matter of lease, Except (a) consumables only for display or advertising. eg. Wedding cakes for display in Goldilocks, wine in a showcase of a store (b) goods are accessory to an industrial establishment e.g., coal in a factory (3) Special characteristics of lease of things; (a) essential purpose is to transmit the use and enjoyment of a thing (b) consensual (c) onerous (d) price fixed in relation to period of use or enjoyment (e) temporary (4) Lease distinguished from sale, usufrunct, commodatum In case of doubt-INTENTION of the parties should be the guide in determining the contract entered into. Lease Sale Only the use or enjoyment of the things is transferred, and only for a determinate period Plain redundancy to Price of the thing fix or mention the was fixed in the price of the thing contract which is the subjectmatter thereof May be in money, or Price must be in in fruits, or in some money or its other useful thing or equivalent some other prestation

Existence of a relation of dependenc e between lessor and lessee

If the lessor works by himself, independently of the lessee, in the manner he deems most adequate for the execution of the work
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Lease

Usufruct

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Real right only by exception: when registered and for more than 1 year Constitutor/Lessor need not be an owner e.g. sublessor, usufruct Lessor places and maintains lessee in the enjoyment of the thing Use is limited to that written in the contract Always a real right To constitute usufruct, constitutor must be the owner Owner merely allows usufructuary to use and enjoy the property Includes all possible uses and manner of enjoyment of property EXCEPT in distinction of normal or abnormal usufruct Maybe for an indefinite period of time

CIVIL LAW
CANNOT be perpetual- there must always be a period, which may be definite or indefinite If the period is indefinite, and the thing leased is rural land, art.1682 shall apply; if it is urban land art. 1687 governs. If the thing is neither rural nor urban land, the provisions of the two articles should be applied by analogy. (i) rural land Art. 1682. The lease of a piece of rural land, when its duration has not been fixed, is understood to have been for all the time necessary for the gathering of the fruits which the whole estate leased may yield in one year, or which it may yield once, although two or more years have to elapse for the purpose. (ii) urban land Art. 1687. If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. Rent monthly weekly Daily Courts can fix a longer term lessee occupied premises for more than a year lessee has been in possession for over six months lessee has stayed in the place for over one month

Must be definite, otherwise court may fix the same through the proper action BOTH the lessee and the usufructuary USE and ENJOY the thing.

Lease Commodatum Consists in the Consists in the cessation of the use cessation of a thing of a thing to to another but this another but this is is essentially essentially onerous gratuitous BOTH consist in the cession of the use of a thing to another (5) Price In Lease Price may be in money, or in fruits, or in some other useful things; some other prestation TENANCY CONTRACT- when the price consists of a certain percentage of the fruits obtained from the thing. But is regarded as having the character more of a partnership rather than a lease. Amount of Rent If the parties are not able to fix the price, or the basis for its determination, the contract is ABSOLUTELY VOID. If the lessee has entered upon the possession and enjoyment of the thing, he will be liable for the damages for the occupation of the thing. (6) Period of lease When the lease is for such time as the lessor or lessee may please, it is considered as on for life, ending upon the death of the party who would have terminated the contract.

Capacity of Lessee Those who are disqualified to buy certain things cannot lease such things. (ART. 1646, 1490,1491) Lease of Real Estate Every lease of real estate may be recorded in the Registry of Property to be binding upon 3rd persons. Purchase of Leased Land Where a purchaser of land at the time of the purchase has FULL KNOWLEDGE of the fact that the land has been leased to a third person, he is BOUND to respect said lease, although it is not recorded upon the certificate of title. (7) Assignment of lease Art. 1649. The lessee cannot assign the lease without the consent of the lessor,

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unless there is a stipulation to the contrary. However, a mere transfer of rights of the lessee, and not of the contract itself, would not require the lessors consent, unless there is an express stipulation to the contrary.

CIVIL LAW
preservation of the thing leased in the manner stipulated between the lessor and the lessee. (i) for rents

(8) Sublease Art. 1650. When in the contract of lease of things there is no express prohibition, the lessee may sublet the thing leased, in whole or in part, without prejudice to his responsibility for the performance of the contract toward the lessor. Assignment of lease There is a transfer to a third person of the rights and obligations arising from the lease contract A sale of the lessees rights, and when the lessor gives his consent, the original lessee is released Succession by particular title to one contract of lease Sublease Merely another contract of lease, where the original lessee becomes in turn a lessor Even when the lessor consents to the sub-lease, the original lease contract subsists and is binding on the lessee Juxtaposition of 2 leases

Art. 1652. The sublessee is subsidiarily liable to the lessor for lessees rent but not responsible beyond the amount of rent due from him at the time of the extrajudicial demand by the lessor. Payments of rent in advance by the sublessee shall be deemed not to have been made, so far as the lessor's claim is concerned, unless said payments were effected in virtue of the custom of the place. (ii) for the use and preservation of the thing leased Without prejudice to his obligation toward the sublessor, the sublessee is bound to the lessor for all the acts which refer to the use and preservation of the thing leased in the manner stipulated between the lessor and the lessee. (9) Rights and obligations of lessor and lessee (a) obligation of lessor Art. 1654. The lessor is obliged: (1) To deliver the thing which is the object of the contract in such a condition as to render it fit for the use intended; (2) To make on the same during the lease all the necessary repairs in order to keep it suitable for the use to which it has been devoted, unless there is a stipulation to the contrary; (3) To maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire duration of the contract. (i) Warranty of Lessor IN the cases where the return of the price is required, REDUCTION shall be made in proportion to the time during which the lessee enjoyed the thing. Art. 1547, 1555, 1561, 1566, 1567, 1568, 1569 Liability for the warranty is not equivalent to liability in damages. The lessor is liable for the warranty of the thing leased against any hidden defects it may have, even when UNKNOWN to said lessor. But this liability for warranty of the thing leased does not amount to an obligation to indemnify the tenant for damages, which is only to be

Effects (1) Remedy when property is subleased despite prohibition: recission and damages, or damages only. (2) When in the contract of lease, there is no express prohibition, the lessee may sublet the thing leased, in whole or in part, without prejudice to his responsibility for the performance of the contract toward the lessor.

(a) House Rental Law (RA 877) there is a presumption that there would be no sublease unless the lessor allows it (b) obligation of sublessee to lessor Art. 1651. Without prejudice to his obligation toward the sublessor, the sublessee is bound to the lessor for all acts which refer to the use and

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allowed, when lessor acted with fraud and in bad faith by concealing the defect and not revealing it to the lessee. (ii) Making of Repairs It implies the putting of something back into the condition in which it was originally and NOT an improvement It is the duty of the lessee to give NOTICE of the need of repairs to the lessor, and he shall be liable for the damages which by his neglect may be suffered by the owner. Lessor is NOT bound to make repairs caused by the lessee himself. Effect of Urgent Repairs During the lease it should become necessary to make some urgent repairs upon the thing leased, which cannot be deferred until the termination of the lease, the lessee is obliged to tolerate the work. If the repair lasts for more than 40 days, the rent shall be reduced in proportion to the time-including the 40 days- and the part of the property of which the lessee has been deprived. When the work is of such a nature that the portion which the lessee and his family need for their dwelling becomes uninhabitable, he may rescind the contract if the main purpose of the lease is to provide a dwelling for the lessee. If after having been notified, the lessor fails to make urgent repairs, the lessee, to avoid imminent danger, may order the repairs at the lessors expense. Dangerous Conditions The lessee may terminate the lease at once by notifying the lessor, even if at the time the contract was perfected the former knew of the dangerous condition or waived the right to rescind the lease on account of the condition. Alteration Art. 1661. The lessor cannot alter the form of the thing leased in such a way as to impair the use to which the thing is devoted under the terms of the lease. (iii) Peaceful Possession

CIVIL LAW
To maintain the lessee on the peaceful and adequate enjoyment of the lessee for the entire duration of the contract. Failure to do so releases the lessee from the obligation to pay what is stipulated in the contract from the date he ceased to occupy the premises. (b) obligations of lessee (Art. 1657) (i) Pay Rent arises only when the contract has been actually carried into effect by the delivery of the thing leased to the lessee for the purpose stipulated in the contract. Increase and Decrease of Rent Increase and decrease in the price of lease shall be 10% per year, net of the assessed violation of the property Failure to Pay for Rent Eviction, recover the unpaid rent, plus accrued legal interest thereon at the rate of 6% per year. Place and Time Payment of rent shall be made at the domicile of the lessee; and with respect to the time, the custom of the place shall be followed. ii. Use the Thing Leased as a Diligent Father Standard: diligent father of a family, in the absence of stipulation, to that which may be inferred from the nature of the thing leased, according to the custom of the place. The lessee is responsible for the deterioration of the thing leased, unless he proves that it took place without his fault. The lessee is liable for any deterioration caused by members of his household and by his guest and visitors. iii. Pay Expenses for the Deed of Lease (Art. 1662-1667) c. Right of lessee to suspend payment of rentals Art. 1658. The lessee may suspend the payment of the rent in case the lessor fails to make the necessary repairs or to

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maintain the lessee in peaceful and adequate enjoyment of the property leased. d. Right to ask for rescission Liability for Breach of Duties If the lessor or lessee should not comply with the obligation set forth in ART 1654 and 1657, the aggrieved party may ask for: (1) rescission of the contract; (2) indemnification for damages; (3) only damages, allowing the contract to remain in force The lessor cannot be held responsible for damages from defects unknown to both parties. Alternative Remedies Performance of the contract and rescission In either case, the aggrieved party is entitled to such damages but may not upon rescission of the contract recover the damages that are appropriate only where the performance is demanded. Rescission of the Contract Where the plaintiff alleges and submits proof that the defendant is in possession of a parcel of land as lessee, and the latter has not paid the proper rents, he may be compelled, by reason of his inability to pay to: (1) return the leased property; (2) the lessor has a right to rescind the contract; (3) recover the unpaid rents (4) eject the tenant from the land The execution of the deed shall be equivalent to delivery but this is a rebuttable presumption. If the thing leased has never been placed in possession of the lessee, he has the remedy of rescission. Enforcement of Lease Where the lessor resumes possession of his leased property for its protection after the lessee has abandoned the same, the lessor has still the right to hold the lessee responsible until the termination of the lease.

CIVIL LAW
(e) Lessor not obliged to answer for mere act of trespass by a third person (10) Grounds for ejectment of lessee by lessor Termination of Lease (1) by the expiration of the period; (2) by the total loss of the thing; (3) by the resolution of the right of the lessor, such as when the lessor is usufruct is terminated; (4) by the will of the purchaser or transferee of the things; (5) by rescission due to nonperformance of the obligation of one of the parties. Period If at the end of the contract the lessee should continue enjoying the thing leased for fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by either party has previously given, it is understood that there is an implied new lease, not for the period of the original contract but for the time established in art. 1682(rural) and 1687(urban) When the parties have made no agreement and the tenant remains in possession with the acquiescence of the lessor for 15 days after the expiration of the term, the duration of the tenancy is governed by article 1682 and 1687. Tacit Renewal The fifteen-day period which brings about a tacit renewal of the lease, is not applicable to successive renewals. Judicial Ejectment The lessor may judicially eject the lessee for any of the following causes: (1) When the period agreed upon, or that which is fixed for the duration of leases under Art 1682 (rural) and 1687(urban), has expired;

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(2) Lack of payment of the price stipulated; (3) Violation of any of the conditions agreed upon in the contract; (4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof, or if he does not observe due diligence in its use. When the lease contract does not have a definite period, but is terminable upon 30 days notice, the lease will terminate upon the expiration of 30 days from the receipt of notice, whether the termination coincides with the rent day or not. The landlord has the right to increase the rent after the expiration of the stipulated period. And if no period is stipulated, in a lease of urban property, notice by the lessor of an increase in rent is equivalent to notice of termination of the original agreement. of purchaser of

CIVIL LAW
terminate the lease except when the contract provided otherwise or purchaser is aware of lease. If the buyer makes use of this right, the lessee may demand that he be allowed to gather the fruits of the harvest which corresponds to the current agricultural year and that the vendor indemnify him for damages suffered. This right does not extend to the gathering of fishes, which require 2 years before they are of any commercial value. The act of the new owner of giving notice of an increase of rent, when the existing lease is of an indefinite time, or when the original period has expired, constitutes a notice of termination of the original lease.

(12) Right leased land

Art. 1676. The purchaser of a piece of land which is under a lease that is not recorded in the Registry of Property may terminate the lease, save when there is a stipulation to the contrary in the contract of sale, or when the purchaser knows of the existence of the lease. If the buyer makes use of this right, the lessee may demand that he be allowed to gather the fruits of the harvest which corresponds to the current agricultural year and that the vendor indemnifies him for damages suffered. If the sale is fictitious, for the purpose of extinguishing the lease, the supposed vendee cannot make use of the right granted in the first paragraph of this article. The sale is presumed to be fictitious if at the time the supposed vendee demands the termination of the lease, the sale is not recorded in the Registry of Property. Art. 1677. The purchaser in a sale with the right of redemption cannot make use of the power to eject the lessee until the end of the period for the redemption. Sale Of Leased Property The purchaser which is under a lease that is not recorded in the Registry of Property may

Right to Repurchase The purchaser in a sale with the right to redemption cannot make use of the power to eject the lessee until the end of the period of redemption. But when the vendor remains in possession as a tenant, and he fails to pay the agreed rent, he may be evicted by the vendee even before the period of redemption has expired. (13) Useful improvements good faith made by lessee. in

Indemnity For Improvements If the lessee makes, in good faith, useful improvements the lessor upon the termination of the lease shall pay the lessee one-half of the value of the improvements at that time. (14) Special provisions for leases of rural lands It is urban when the principal purpose is dwelling. It is rural when the principal purpose is exploitation of the soil.

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XIX. DONATION Characteristics: a) Unilateral obligation imposed on the donor b) Consensual perfected at time donor knows of acceptance Requisites of Donation: (1) Consent and capacity of parties (2) Animus donandi (causa) (3) Delivery of thing donated (4) Form as prescribed by law There must be impoverishment in fact of donors patrimony and enrichment on part of donee. Requirements of a donation: 1. subject matter anything of value; present property & not future, must not impair legitime 2. causa anything to support a consideration: generosity, charity, goodwill, past service, debt 3. capacity to donate & dispose & accept donation 4. form depends on value of donation Kinds of Donation A. As 1. 2. 3. to its taking effect Inter Vivos (729, 730, 731) Donation mortis causa (728) Propter nuptias (Art. 82, 87 Family Code) What govern Inter vivos take effect during the lifetime of the donor
AS TO WHEN THEY TAKE EFFECT

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o Nature of a donation is not made to depend by the title given by the donor but by what is expressed. To determine whether mortis causa or inter vivos, nature of act, whether it is disposition or execution, is controlling.

Inter vivos In doubt, conveyance should be deemed a donation inter vivos to avoid uncertainty as to the ownership of the property. Where the ownership and possession as well as administration were turned over to the donee but right to reap and dispose of the fruits was deferred until after donors death, donation is inter vivos General rule: Donation inter vivos is irrevocable EXCEPT: 1. During the subsequent birth of the donors children 2. Failure of donee to comply which conditions imposed 3. Ingratitude of donee; and 4. Reduction of the donation by reason of inofficiousness Donation mortis causa A donation mortis causa not in the form of a will is not valid and does not transmit any right. If the donor reserves the right to dispose of all the properties purportedly donated, there is no donation inter vivos but mortis causa.

rules

Intention of the parties prevail if the intention is to make the donation effective during the donors lifetime: ART 729: even if the thing donated is delivered only at the time of the donors death, it is inter vivos and the fruits of the thing belongs to the donee unless the donor provides otherwise ART 730: even if there is a fixing of an event or the imposition of a suspensive condition which may take place beyond the natural expectation of the life of the donor ART 731: If the resolutory condition is the donors survival (i.e. if donor does not die, the donation already effective shall terminate)

Governed by the rules on contracts and obligations with regard to portions not provided in the title on donations ART 732 They partake of the nature if testamentary provisions and are governed by the rules on Succession ART 728

Mortis causa take effect upon the death of the donor

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B. As to Cause or Consideration 1. Simple (Art.725) 2. Remuneratory (Art.726) 3. Onerous (Art.733) (See Table in the appendix) C. As to its Effectivity or Extinguishment 1. Pure 2. Conditional (730, 731)donation is not carried out until the day comes but it produces effects With a term He who donates with a term has already disposed of the thing donated and cannot revoke it nor can he dispose the thing in favor of another unless the donor postpones execution and reserves the right to revoke Perfection of Donation presumes a demandable juridical relation. The donor can no longer withdraw and he can be compelled to comply. Acceptance is necessary because nobody is obliged to receive a benefit against his will. When the donation and the acceptance are in the same instrument, signed by both donor and donee, donation is perfected. After perfection, donation can only be revoked by the consent of the donee or by judicial decree especially when the donation is onerous. Mere declaration of an intention without intent to transfer is not a donation even if accepted. DONATION OF MOVABLES; ART 748 Oral Value of the thing donated < or = P5,000 Requires simultaneous delivery of the thing or the document which represents the thing In writing Value of the thing donated > P5,000; otherwise, void

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WHEN PERFECTED: ACCEPTANCE THE DONEE: GENERALLY BY

ART 734: Donation is perfected at the moment the donor knows of the donees acceptance WHO MAY ART 745: Only these ACCEPT: persons may accept; otherwise, void 1) donee personally 2) authorized person with a special power for the purpose or with a general sufficient power WHEN TO ART 746: During lifetime ACCEPT of donor and donee DONATION OF IMMOVABLES: DONATION AND ACCEPTANCE FORM OF DONATION CONTENTS OF DONATION FORM OF ACCEPTANCE Public document Property donated is specified and the value of the charges which the donee must satisfy Same deed of donation or in a separate public document; if separate, the donor shall be notified in an authentic form and this shall be noted in both instruments During lifetime of donor

WHEN ACCEPT

TO

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DONOR DONEE ART 735: All persons who may contract ART 738; All those not specially and dispose of their property disqualified by law ART 736: Donors capacity determined at the time of the making of the donation ART 736: Guardians and trustees with respect to the property entrusted to them ART 739: Void donations: 1) those made between persons guilty of adultery or concubinage at the time of the donation (the declaration of nullity may be brought by the spouse of the donor or donee and only preponderance of evidence is needed) 2) those found guilty of the same criminal offense inconsideration thereof ART 739 (3): public officer or his wife, descendants and ascendants by reason of his office ART 740: Those who cannot succeed by will cannot be donees ART 743: Donations made to incapacitated persons are void although made under the quise of another contract ART 741: Minors may become donees but acceptance must be made through their parents or legal representative ART 742: Donations made to unborn children may be accepted by persons who would legally represent them if they were already born 5. Art. 2012 Any person who is forbidden from receiving a donation under Art. 739 cannot be named beneficiary of a life insurance policy by the person who cannot make a donation to him.

Who may receive? e. All those who are not specially disqualified by law e.g. husband and wife during marriage, not propter nuptias f. Even if incapacitated e.g. minors, insane, etc. (acceptance made through parents or legal guardian); conceived and unborn (acceptance made through legal representatives if they were born) Capacity required is for disposition inter vivos and not mortis causa. Both capacity to contract and the capacity to dispose of property must exist in order to have capacity to donate. Capacity to accept is also governed by rules on succession Other persons disqualified to receive donations: 1. priest who heard confession of donor during his last illness 2. relatives of priest within 4th degree, church, order, community where priest belongs 3. physician, nurse, etc. who took care of donor during his last illness 4. individuals, corporations, associations not permitted

WITH QUALIFICATI ONS

WHO ARE NOT ALLOWED

WHO ARE ALLOWE D

Double Donations Apply double sales to double donations Who may accept (Art. 745, 747) - donee personally or through authorized person - representatives of incapacitated must make notification and notation If the donor dies before he learns of the acceptance, the donation does not take effect, even if the acceptance is made during the lifetime of the donor. Form of Donations (a) Personal property (Art. 748) Document of donation need not be public instrument. When donation does not exceed P5,000, it may be made orally or in writing. If made orally, there must be simultaneous delivery. If no

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simultaneous delivery, donation is void unless it is made in writing. The law does not require that when the donation is made in writing the acceptance should also be in writing (if value does not exceed P5,000). (b) Real property (Art. 749) Art. 1357 is not applicable. Donee cannot bring an action to compel the donor to execute a public instrument of donation. That article is applicable only to contracts which validly exist and cannot be held applicable to a case where the form is required in order to make it valid. Where the donor executed private instruments of donation and after his death his only heir executed a public instrument ratifying the donation, such public instrument cannot be considered as having retroactively perfected the gift. It might serve as a quitclaim on the part of the heir who is estopped from asserting any right to the properties. If the instrument of donation has been recorded in the registry of property, the instrument that shows the acceptance should also be recorded. If acceptance has been made but before the donor has been notified, the donor dies, the donation is not perfected. If the donors heirs ratify the donation and

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the donee or his heirs accept, the donation subsists but in reality it is a new and valid one. While a donation of immovable property not made in a public instrument is not effective as a transfer of title, it is a circumstance which may explain the adverse and exclusive character of the possession of the intended donee and such possession may ripen into ownership by prescription. Rules in Art. 748 and 749 applicable to: i. onerous donations ii. modal donations iii. mortis causa donations iv. donations propter nuptias not

What may be given: All or part of donors present property provided he reserves sufficient means for the support of the ff: himself relatives who by law are entitled to his support legitimes shall not be impaired when w/o reservation or if inofficious, may be reduced on petition of persons affected except: conditional donation & donation mortis causa except: future property (Osorio vs. Osorio)

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WHAT MAY BE DONATED ART 750 All present property of the donor or part thereof

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LIMITATION: he reserves in full ownership or in usufruct, sufficient means for his support and of all relatives who at the time of acceptance of the donation are by law entitled to be supported EFFECT OF NON RESERVATION: reduction of the donation

WHAT MAY DONATED:

NOT

BE

DONATIONS SEVERAL JOINTLY

MADETO PERSONS

WHAT THE DONEE ACQUIRES WITH THE THING OBLIGATIONS DONOR OF THE

ART 751; Donations cannot comprehend future property; those which the donor cannot dispose of at the time of the donation ART 752: No person may give or receive by way of donation more than what he may give or receive by will EFFECT OF EXCESS: inofficious ART 753: No accretion (i.e. one donee does not get the share of the other donees who did not accept) ART 754: to be subrogated to all the rights and actions that would pertain to the donor in case of eviction ART 754: No obligation to warrant

EXCEPTION: those given to husband and wife except when the donor otherwise provides

WHAT MAY BE RESERVED BY THE DONOR USUFRUCT vs. OWNERSHIP

ART 755: Right to dispose may be reserved ART 757: The ownership of the property may be donated to one person and the usufruct to another ART 758: The donor may provide that the property will go back to him or to another person for any case or circumstances ART 758: If the donation imposes this obligation on the donee, only those debts previously contracted shall be paid by said donee and in no case shall he be responsible for debts exceeding the value of the thing donated ART 759: If there is no stipulation for the donee to pay debts, he shall only be responsible when the donation was made in fraud of creditors

EXCEPT: when donation is onerous EFFECT: if the donor shall be liable This also applies in case of bad faith on his part with regard to hidden defects If donor dies without exercising this right, the portion reserved shall belong to the donee

REVERSION

OBLIGATION OF DONEE TO PAY DONORS DEBTS

LIMITATION: The third person should be living at the time of the donation OTHERWISE: reversion is void but obligations subsists EXCEPT: When contrary intention appears

IN FRAUD OF CREDITORS

PRESUMPTION that donation in fraud of creditors: when at the time of donation, the donor did not reserve sufficient property to pay his debts prior to the donation

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In General (1) Donee may demand actual delivery of the thing donated. (2) Donee is subrogated to rights of donor in the property donated. (3) Donor not obligated to warrant things donated, except in onerous donations in which case, donor is liable for eviction up to the extent of the burden. (4) Donor is liable for eviction or hidden defects in case of bad faith on his part. Donations propter nuptias of property subject to encumbrances are valid. Art. 85 FC-Effect of foreclosureDonations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold than the total amount of said obligation, the donee shall be entitled to the excess. Donation to several donees jointlyno right of accretion Except 1. donation provides otherwise 2. donation to husband and wife jointly with right of accretion (jus accrescendi), unless the donor provides otherwise. Special Provisions (1) Reservation by donor of power to dispose (in whole or in part) or to encumber property donated. (755) (2) Donation of naked ownership to one donee and usufruct to another. (756) (3) Conventional reversion in favor of donor or other person. (757) (4) Payment of donors debt (758) (a) If expressly stipulated-donee to pay debts contracted before the donation, unless specified otherwise, but in no case shall the donee be responsible for debts exceeding value of property donated, unless clearly intended (b) If there is no stipulationdonee answerable only for donors debt only in case of donation in fraud of creditors. Liability of the donee for the debts of the donor should be

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considered as limited to the value of the thing donated. Creditors may demand the rescission of the donation. If the credits exceed the value of the property, the donee cannot be held liable for such excess. If the donee has alienated the property to one who acquired it in good and he is unable to return it, he will be held liable in damages but the damages cannot exceed the value of the property itself. Donations of Future Property (751) Future property includes all property that belongs to others at the time the donation is made, although it may or may not later belong to the donor. BUT these can be donated: 1. properties to which the donor has a RIGHT, although the delivery of such properties to him may be fixed for a future date 2. those properties which pertain to him CONDITIONALLY, and will become his upon the happening of a suspensive condition. Properties of an existing INHERITANCE cannot be considered future property of the heirs after the death of the predecessor, because the rights of the heirs are acquired on the moment of death, even if the delivery to them of the property may be delayed. Revocation of Donations - applies only to donation inter vivos - not applicable to onerous donations With regards to donations made by person without children or descendants at time of donation: 1. If donor should have legitimate, legitimated or illegitimate children 2. If child came out to be alive & not dead contrary to belief of donor 3. If donor subsequently adopts a minor child Action for revocation based on failure to comply with condition in case of conditional donations Action for revocation by reason of ingratitude 1. Donee commits offense against person, honor, property of donor, spouse, children under his parental authority

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2. Donee imputes to donor any criminal offense or any cat involving moral turpitude even if he should prove it unless act/crime has been committed against donee himself, spouse or children under his parental authority 3. Donee unduly refuses to give support to donor when legally or morally bound to give support to donor Exception to rule on intransmissibility of action with regards to revocation due to ingratitude: 1. personal to the donor; general rule is heir cannot institute if donor did not institute 2. heirs can only file in the ff cases: a) donor has instituted proceedings but dies before bringing civil action for revocation b) donor already instituted civil action but died, heirs can substitute c) donee killed donor or his ingratitude caused the death of the donor d)

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donor died w/o having known the ingratitude done e) criminal action filed but abated by death 3. can only make heirs of donee liable if complaint was already filed when donee died

Inofficious donations: 1. shall be reduced with regards to the excess 2. action to reduce to be filed by heirs who have right to legitimate at time of donation 3. donees/creditors of deceased donor cannot ask for reduction of donation 4. if there are 2 or more donation: recent ones shall be suppressed 5. if 2 or more donation at same time treated equally & reduction is pro rata but donor may impose preference which must be expressly stated in donation

KINDS OF DONATION
Pure/Simple a) Consideration Merits of donee Remuneratory Liberality or merits of donee or burden/ charge of past services provided they do not constitute demandable debt Law on donations Required Applicable Conditional Valuable consideration is imposed but value is less than value of thing donated Extent of burden Required Applicable Onerous Valuable consideration given

b) law to apply/ forms Law on donations c) form of acceptance Required d) reservation w/regards to personal support & legitime Applicable e) warranty against eviction & hidden defects In bad faith only f) revocation Applicable g) effect of impossible/ illegal conditions considered not written

Law on obligations imposed>oblicon excess>donation Required Not Applicable

In bad faith only Applicable considered not written

In bad faith only Applicable considered not written

Applies Applicable Obligation nullified

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MODES OF EXTINGUISHMENT
BIRTH OF CHILD Ipso jure revocation, no need for action., court decision is merely declaratory Extent: portion which may impair legitime of heirs Property must be returned Alienation/mortgages done prior to recording in Register of Deeds: If already sold or cannot be returned the value must be returned If mortgaged donor may redeem the mortgage with right to recover from donee
Fruits to be returned at filing of action for revocation Prescription of action is 4 years from birth, etc. Action cannot be renounced Right of action transmitted to heirs Action heirs extends to donees

NON-FULFILLMENT OF CONDITION needs court action

INGRATITUDE needs court action

Extent: whole portion but court may rule partial revocation only Property in excess

Extent: Whole portion returned Property to be returned

Alienations/mortgages imposed are void unless registered with Register of Deeds

Prior ones are void; demand value of property when alienated and cant be recovered or redeemed from 3rd persons

Fruits to be returned at filing of complainant Prescription is 4 years from non-fulfilment Action cannot be renounced in advance Right of action at instance of donor but may be transmitted to heirs Action does not extend to donees heirs

Prescription is 1 year from knowledge of fact and it was possible for him to bring action

Heirs cant file action

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REVOCATION/ REDUCTION OF DONATION

BASIS Birth, appearance, adoption TIME OF ACTION Within 4 years from birth, legitimation and adoption TRANSMISSIBILITY Transmitted children descendants death of donor to and upon EFFECT Property returned/ value (if sold)/ redeem mortgage with right to recover Property returned, alienations and mortgages void subject to rights of third person in good faith Property returned but alienations and mortgages effected before the notation of the compliant for revocation in the registry of property subsist Reduced to the extent necessary to provide support Donation takes effect on the lifetime of donor. Reduction only upon his death with regard to the excess Returned for the benefit of creditor who brought action LIABILITY (FRUITS) Fruits returned from the filing of the complaint

Non compliance with condition

Within 4 years from non compliance

May be transmitted to donors heirs and may be exercised against donees heirs

Fruits received after having failed to fulfill condition returned

Ingratitude

Within 1 year after knowledge of the fact

Generally not transmitted to heirs of donor/donee

Fruits returned from the filing of the complaint

Failure to reserve sufficient means for support Inofficiousness for being in excess of what the donor can give by will

At any time by the donor or relatives entitled to support Within 5 years from death of donor

Not transmissible

Donee entitled

Transmitted donors heirs

to

Donee entitled

Fraud against creditors

Rescission within 4 years from the perfection of donation/ knowledge of the donation

Transmitted to creditors heirs or successors in interest

Fruits returned/ if impossible indemnify creditor for damages

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