Property (Hizon Notes).pdf

NOTES ON PROPERTYKenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ UNIVERSITY OF SANTO TOMAS Faculty of Civil Law A.Y. 2011-2012 First Semester LAW ON PROPERTY includes rights, the rights covered under Art. 3 of the BOOK II Constitution are not deemed property because these are PROPERTY, OWNERSHIP, AND ITS MODIFICATIONS rights which are not capable, appropriated, or susceptible of appropriation. These rights are right to office, right of person Title I. - CLASSIFICATION OF PROPERTY of his labor, etc. PRELIMINARY PROVISIONS Q: What are the classes of rights considered as property? Art. 414. All things which are or may be the object of appropriation are considered either: A: (1) Immovable or real property; or 1. Real right- right which can be exercised against the whole (2) Movable or personal property. (333) world 2. Persona right- right to demand the fulfillment of Q: What is property? prestation to give, to do or not to do. A: The law does not directly define what property is, all it Q: What is appropriation? merely says is that all things which are or may be the object of appropriation, then it merely classifies them as either: A: It is the act of taking a thing for one’s own use. It is a. Real equivalent to occupation, the physical seizure of corporeal b. Personal things which have no owner with the intention to acquire their ownership but it is not limited to that . Better Defintion: Property is an object or right which is capable, is appropriated, or is susceptible of appropriation by Q: What is a thing? man, with capacity to satisfy his wants and or needs. A: Refers to existing objects which can be of some use to Property does not only cover material things (solid, liquid, man. gas) because it mentions of right. Thing is apparently synonymous with the word property. Q: Is air a property? Technically, thing is broader in scope for it includes both appropriable and non-appropriable object. A: Air per se is not a property, but if it is placed in oxygen tanks, it now becomes property. Air becomes a property Property is always a thing, but a thing is not always a when it comes under the control of man. property. Q: What are the attributes of property? Q: What are the classification of things? A: A: 1. Susceptible of appropriation 1. Res Communes- things which belong to everybdy like 2. Indivoduality or substance sunlight, moonlight, moving air, but these things do no 3. Satisfy the moral or economic needs of man qualify as properties as contemplated under Art. 414 because they are beyond human control or appropriation Q: Are the rights under the Bill of Rights considered as 2. Res alicujus- are things which are owned by a person or property? group of persons like house and lot, a parcel of land. 3. Res nulius- things which do not have any owner like the A: No. Although the concept of property does not only whale, sharks, wild animals in the forest. These things are include corporeal things, whether solid, liquid, or gas, as it qualified as property because this can be placed under Facultad de Derecho Civil 1 UNIVERSITY OF SANTO TOMAS NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ the control of man through human occupation. Once Q: What are the classifications of property? seized by man, it automatically belongs to him. A: Q: Is human body a thing while the person is alive? 1. As to mobility A: Generally, no. However, certain body parts when severed a. Immovable or real property from the body become property like hair, blood, etc. b. Movable or personal property Q: What about the corpse? 2. As to ownership A: It is considered as thing. That is why it is sometimes a. Public dominion referred as “remains of person” but no longer the person. b. Private ownership It is not a property even it may be considered a thing. It is for 3. As to alienability moral reasons and public policy that it is not considered as property. a. Alienable b. Inalienable Q: May it be a subject of contractual relations? 4. As to individuality A: Dean Aligada says no. However, some parts may be donated for some scientific or medical purposes. According to a. Specific property Justice Quiambao, however, generally, human body cannot b. Generic property be the subject of contractual relations. The exception is if the person during his lifetime would donate his organs or body 5. As to susceptibility to touch parts by way of legacy or under Sec. 4 of Organ Donation Act. a. Tangible Q: Are human organs within the commerce of men? b. Intangible A: No. 6. As to susceptibility to substitution a. Fungible Q: When you hire a person, does this not violate the b. Non fungible principle that human bodies cannot be the object of contract? 7. As to accession A: No. In obligations, the object is the prestation which is a. Principal either to do, not to do, or to give. Here, the objetc is the b. Accessory service rendered or the labor exerted and labor is a property which may be the subject of contractual relation. The human CONSUMMABLES v. FUNGIBLES body is merely the means to render the service or labor required. CONSUMMABLES FUNGIBLES Those which cannot be used Those which can be Things v. Property according to their nature substituted by another thing without being consumed THINGS PROPERTY Broader in scope Limited Q: What is the importance of classifying the property “All kinds of property are “All things which may be the according to its mobility? things but not all things are object of appropriation property A: The importance of the classification is that it determines Refer to existing objects Property refers to objects certain distinctions in specific legal concepts like: including those which could already possessed or is in not be appropriated by man their possession 1. Criminal law Things involve corporeal Property may refer tp objects intangible matters like rights Robbery and theft- movables and credits Usurpation and estafa- immovables CLASSIFICATION OF PROPERTY 2. Kinds of contracts Facultad de Derecho Civil 2 UNIVERSITY OF SANTO TOMAS NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ Real property- mortgage, antichresis Personal property- pledge, deposit except judicial deposit, chattel mortgage 3. Acquisitive presctiption CATEGORIES OF IMMOVABLE PROPERTIES GOOD FAITH BAD FAITH Movable 4 years 8 years 1. NATURE- property which cannot be moved from one Immovable 10 years 30 years place to another. Includes such constructiibs adhered to soil, lands, roads, mines and quarries, wells and sewers 4. Venue in Remedial Law while they form part of soils (Pars. 1 and 8) regardless of any other consideration. 2. INCORPORATION-attached to an immovable in a fixed CHAPTER 1 manner (Pars. 1-3) irrespective of the ownership thereof. IMMOVABLE PROPERTY 3. DESTINATION- such objects for use or ornamentation Art. 415. The following are immovable property: placed in buildings or on lands by the owner of the immovable or his agent in such a manner that it reveals (1) Land, buildings, roads and constructions of all kinds the intention to attach them permanently thereto, as adhered to the soil; well as the machinery and other implements intended by (2) Trees, plants, and growing fruits, while they are attached the owner of the tenement for an industry or work which to the land or form an integral part of an immovable; may be carried on in a building or on a place of land and (3) Everything attached to an immovable in a fixed manner, which tend directly to meet the needs of the said in such a way that it cannot be separated therefrom without industry or work. breaking the material or deterioration of the object; (4) Statues, reliefs, paintings or other objects for use or 4. ANALOGY- such as real rights over immovable property ornamentation, placed in buildings or on lands by the owner (par. 10) of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements; Par.1 (5) Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or Land by its very nature is immovable. Permanent structures works which may be carried on in a building or on a piece of adhering to the land, whether in own land or rented land land, and which tend directly to meet the needs of the said industry or works; Constructions adhere to the soil [fence made of adobe (6) Animal houses, pigeon-houses, beehives, fish ponds or stones, cemented dike breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have Buildings which are permanent structures adhered to the them permanently attached to the land, and forming a land are immovable whether built in one’s own land or permanent part of it; the animals in these places are rented provided that they are more of a permanent structure included; and not mere superimpositions on the land like barong- (7) Fertilizer actually used on a piece of land; barongs. (8) Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either running or A dismantled house and/or of materials of such house shall stagnant; cease to be immovable and shall legally be considered (9) Docks and structures which, though floating, are personal property. intended by their nature and object to remain at a fixed place on a river, lake, or coast; See: Jose Luna v. Demetrio Encarnacion; Leung Yee v. Frank (10) Contracts for public works, and servitudes and other Strong real rights over immovable property. (334a) Q: Can a house be subject of chattel mortgage? Q: What is an immovable property? A: Yes, provided the following are present: A: Under the Roman concept, it is that which cannot be a. Parties mutually agreed to consider the house a transferred from one place to another because it is personalty rd impossible to do so or it cannot be transferred without b. That no innocent 3 party be prejudiced. transferring without suffering injury or destruction. Facultad de Derecho Civil 3 UNIVERSITY OF SANTO TOMAS not being incorporation incorporation and adhered to the soil. Even if the properties appear to be from one place to another. in the absence of PAR. if they have substantial. must be products of the soil. For purposes of sale NOTE: b. and BY INCORPORATION. but if cut or uprooted it becomes immovable by nature. The one who placed the statue etc. treating them as chattels to secure an obligation under the principle of estoppel. treat as personal property that which by nature would be a real property. Hence. For attachment and execution Doctrine of Estoppel – parties to a contract may. immovables by incorporation and destination ownership in the hands of another. if they are spontaneous The breakage or injury. If attached it is personal property). except in the case of Q: What are the requisites under this paragraph? Facultad de Derecho Civil 4 UNIVERSITY OF SANTO TOMAS . 3 from Par. 4 stipulation. as the parties’ intent has Trees by their very nature are immovable. a building may be validly mortgaged separately from Q: Distinguish Par. The fact that the machineries were bolted or cemented on Par. the improvements thereon. 3&5. cannot be moved to be looked into. unless the owner has recognized the them. but if on pots used for ornamentation it is personal property. nothing prohibits the parties from personal property because it ceased to be adhered to the soil. which when unscrewed.NOTES ON PROPERTY Kenneth & King Hizon (2A). they are not to be considered real destination properties. registration in the Registry of Real Property. party is prohibited from assuming Par. could easily be Real property by Real property by dismantled and moved from place to place. Par. No matter what their size may be. the land upon which it is built. as between the parties to said contract. in case of separation. 3 PAR. which when separated from the immovable. still. express or implied means of bolts. they regain the air condition Regardless of the validity of a contract constituting a chattel as movable.4 Trees and plants planted or land are owned by registered Things placed on land or building with intention to attach owner of the land. harvested then it is personal property. While it is true that a mortgage of a land necessarily includes. XPN: a. by c. the same cannot and does not bind third persons who are not When separated from the immovable.UST Faculty of Civil Law ___________________________ A building is real property thus its sale as annotated in the uprooted timber. GR: Growing Fruits are real property if attached to the soil A building subjected to a chattel mortgage cannot be sold extra-judicially. must be the owner of the STANDING CROPS (growing crops) are real property by land or building or his representative or agents (if tenant incorporation as long as they had not been gathered yet. Plants adhered to the soil by incorporation are immovable. 415 par. For applying Chattel Mortgage Law agreement. if the land is a timber land. been planted thru labor. they regain their privies to the said contract condition as movable Q: May a building be mortgaged separately from the land? Ex: ceiling fan attached to ceiling A: Yes.2 real property mortgage does not make them ipso facto immovable under Art. mortgage on a house. 4. trees and plants are considered real property BY NATURE. a building by Cannot be separated from Can be separated from the itself may be mortgaged apart from the land on which it has the immovable without immovable without breaking been built breaking or deterioration or deterioration Need not be placed by the Must be placed by the owner Steel towers constructed by the Manila Electric Company are owner1 of the immovable or his removable and merely attached to a square metal frame by agent. This is because Chattel Mortgage Registry cannot be given the legal effect of timber is an integral part of the timber land.3 inconsistent positions and repudiating an obligation voluntarily assumed after having accepted benefits therefrom RES VINTA – immovable by incorporation. Machinery. are considered real property Steel towers are not intended for industry or works on the land since Manila Electric Company is not engaged in an Par. Place by the owner or by the tenant as agent of the intended to meet the needs of an industry of the corporation. 415. If they are still on sacks or containers. in case their owner has a real property? placed them or preserves them with the intention to have them permanently attached to the land. Animals in pigeon-houses. necessary for the pursuit of said industry or works Q: Give the exception to the exception? If the objects are separated.8 Facultad de Derecho Civil 5 UNIVERSITY OF SANTO TOMAS . are merely incidentals not considered immobilized by destination. The animal in the houses are considered part of the 4. for these businesses can May be considered as real property under Art415(1) if it is a continue or carry on their functions without these construction adhered to the soil in a permanent manner even equipments. or when he acted only these are personal or movable property as an agent of the owner of the land. 3. etc. beehives. The industry or works must be carried on in a building or attach to the ground. etc. a. tree. beehives. and forming a A: permanent part of it. etc. Hence. Place by the owner or by the tenant as agent of the owner. with the intention of permanent attachment Cash registers.5 Q: Give the exception? Intended by the owner of the tenement for an industry or works being carried in the land or in a building and which are A: When placed on the land or tenement by a tenant. Fertilizers should be actually used on the land. If animals escaped. function or carry on the industrial purpose for which it was established. what are the requisites to be considered as breeding places of similar nature. they ceased to be part of the industry or works without which such industry cannot immovable. it is because they are essential to said industries. they are still movables.5. Once trucks and adding machines which they usually own and use permeated to the soil. if not placed by the owner of the immovable. 5. With the intention of attaching them permanently. Forms permanent part of the immovable hotels. even Q: Thus. when is machinery attached to land if adherence will not involve breakage or injury.NOTES ON PROPERTY Kenneth & King Hizon (2A). Par. destroying it Par. fish ponds or Q: Under par. pigeon-houses. under Art. EXPN: lessee agreed to give the machinery to the lessor upon Par. or tenement considered immovable? A: Under Par. it cannot be removed from it without are mere incidentals and retain their movable nature. owner b. etc. must tend directly to meet the needs of the said industry or works. but the delivery immovable by destination and incorporation.7 industry or works on the land in which the steel supports or towers are constructed. 6 termination of lease (considered immovable) Animal houses. restaurants. Machinery. must be placed by the owner of the tenement or his agent Animal houses. They must be essential and principal elements of an immovable.UST Faculty of Civil Law ___________________________ Equipment and living quarters of the crew permanently A: attached to an immovable is an immovable especially if it is a. typewriters. though movable in nature are immobilized The moment it is spread or applied directly to the soil. usually found and used in b. adhered to the soil -If purposely built to 2. the general rule is that the tenement at the end of the lease. they become personal property A: When the tenant had promised to leave the machinery on If machinery are installed by lessee. movables which are incidental Q: What are the requisites under this paragraph? thereto cannot be considered immobilized. etc. owner of land intended to piece of land be permanent. Machineries of breweries used in the manufacture of liquor and soft drinks. wall . the animals in these places are included 1. Forces of nature which are brought under the control of Vessels are considered personal property under the civil law science and common law and occasionally referred to as a peculiar d. (3) Forces of nature which are brought under control by Q: What are slag dumps? science. Things which can be transported from place to place kind of personal property.UST Faculty of Civil Law ___________________________ CHAPTER 2 Minerals found in these mines when still attached are real MOVABLE PROPERTY property. sculptor. it was held that as an subject of theft. In Laurel v.9 b. Additionally. the Court held that gas and electrical energy should not be equated with business or services A person’s one-half interest in business is a personal provided by business entrepreneurs to the public. improvement to the land. though not physically so united. 415 Par. by express provision of the law. and (4) In general.: A personal right is always regarded as personal property Electricity is a valuable article of merchandise and can be bought and sold like any personal property. Carlos. record of the Collector of Customs at the port of entry.S. Fernandez. and inventors inseparable therefrom just like servitudes and other real have rights over their works. rivers or canals A: a.10 In U. After extraction it become chattels. XPN: In the cases of public works which are considered as real property. once extracted they (2) Real property which by any special provision of law is become movables considered as personal property. floating without injuring the real property to which it may be restaurant in cruise remains movables. (335a) Q: What is water? Q: What are the tests to determine whether a property is a movable property? A: Refers to those which are found in their natural beds such as flowing streams. partner. PROPERTY. Law has provided that certain real property be treated as personal property Although floating. to remain at a fixed Law place on a river. The RPC provides that personal property is the subject of theft. the long distance of call services of a telephone company are not movable properies which may be the In Presbiterio v. as long as they Example: growing crops for the purposes of Chattel Mortgage are intended by their nature and object. stones & sand real property. composer.NOTES ON PROPERTY Kenneth & King Hizon (2A). attached in the mean time. Facultad de Derecho Civil 6 UNIVERSITY OF SANTO TOMAS . Art. By exclusion: those which are not included in Art. Par. property. Q: What is the test of mobility? Q: Is a floating restaurant considered as immovable? A: If a property is capable of being carried from one place to A:It depends. 416. all things which can be transported from A: Waste and dirt taken from a mine and mounted on the place to place without impairment of the real property to surface of the ground under excavation which they are fixed. GR. If it is floating in a fixed place and it was another and that such change in location can be made intended as such. they are intended to be stationary. However. extracted. Abrogar. These rights are PERSONAL rights over an immovable. lake or coast c. The following things are deemed to be personal Q: What are quarries? property: (1) Those movables susceptible of appropriation which are A: Lands where stones are chipped of or where sand is being not included in the preceding article. they are immovable. It is essential that a record of without impairment of the real property to which they documents affecting the title to a vessel be entered in the are fixed. the sugar quotas are NOTE: The author. v. the Court convicted the accused of theft. Considered as immovables though floating. 1. The right to collect a sum of money is by itself a personal CHAPTER 3 property. How do you classify your share in the 2. canals. without being for public without it being consumed. A: Property of the state in its public capacity which is Q: What if you are a co-owner of a building? intended: a. (338) A: From the wordings of the law could be implied that only stock corporations engaged in agriculture. it states shares of stocks. appropriate to their nature without being consumed banks. What does it mean? Art. 418. and are intended for some public service or for the development of the national wealth.NOTES ON PROPERTY Kenneth & King Hizon (2A). commercial and industrial up. commerce.cannot be used in a manner rivers. use. although they may have real estate. Property of private dominion partnership? Q: What is public dominion? A: It is personal property. The following are also considered as personal CONSUMMABLES FUNGIBLES property: Those properties which Things which can be cannot be used according to substituted by another thing (1) Obligations and actions which have for their object their nature without being movables or demandable sums. 417. To the first class belong those movables A: Consists of all property belonging to private persons either which cannot be used in a manner appropriate to their individually or collectively. 2. b. 2. PROPERTY IN RELATION TO THE PERSON TO WHOM IT BELONGS Q: Under par. For public use A: It is Real. Q: Classify the property according to ownership? Q: What if you are partners with somebody in the business A: of selling cars and your partnership bought a garage and 1. Property of public dominion display store. 419. (337) Q: How do you classify objects as to their consummability? Art. ports and bridges constructed by the State. 420. and others of similar character. Dean Pineda claims that there is no reason why other juridical entities to be excluded from the coverage.one which can be used (2) Those which belong to the State. eaten up. to the second class belong all the others. Consummable property. Q: What are the classification of property of public dominion? CONSUMMABLES v. For public service c. however. and consumed.UST Faculty of Civil Law ___________________________ Art. (339a) NOTE: The test is whether a property can be used over and over again. nature without their being consumed. or used (2) Shares of stock of agricultural. being eaten or used. shores. For the development of national wealth Q: How about private ownership? Art. The words obligations and actions refer fungibles to the right to recover movables and demandable sums of money. (336a) Test: Whether it can be used Test: intention of the parties over and over again Q: What is the scope of this article? Consummables do not necessarily mean they are A: This covers credits. it is non-consummable. Property is either of public dominion or of private ownership. The following things are property of public dominion: A: (1) Those intended for public use. Non-consummable property. torrents. Movable property is either consumable or nonconsumable. entities. If yes. FUNGIBLES A: Facultad de Derecho Civil 7 UNIVERSITY OF SANTO TOMAS . or Public Dominion industry. such as roads. roadsteads. NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ 1. Property for public use years, renewable for not more than twenty-five years, and 2. Property for public service under such terms and conditions as may provided by law. In 3. Property for the development of national wealth cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of waterpower, Q: What is a property for public use? beneficial use may be the measure and limit of the grant. A: These are properties which can be used by like roads, Q: What are the properties of Public Dominion under bridges, state rivers, and the like. Article420, NCC? Q: What is property for public service? A: 1. Roads – national highways and roads constructed A: Properties belonging to the State which can be used only and maintained by DPWH by those who are authorized to do so like buildings for 2. Canals – artificial waterways, drainage, irrigation or government offices or departments, vehicles for public navigation officials, firearms, etc. 3. Rivers – includes the running waters, bed and the bank Q: How about those for the development of the national Accretion on riverbanks wealth? a. Natural – belongs to the owner of land adjacent to bank A: These are forest lands, minerals, etc. b. Artificial – belongs to the State 4. Torrents Q: Can the properties of public dominion be subject of 5. Ports and Bridges Constructed by the State negotiations for contract purposes? Ports includes airports and seaports 6. Charging of fees to the public does not determine A: No. Properties of public dominion are properties outside the character of the property – still for public use the commerce of men, hence, when it is outside the Banks commerce of men it cannot be the subject of negotiations for 7. Shores – space which is alternately covered and contract purposes. uncovered by the water with movements of the tides Q: What are the characteristics of property of public 8. Roadsteads dominion? 9. Others of Similar Character - Creeks 10. Those Belonging to State which are Intended for A: Some Public Service or for the Development of the 1. Outside the Commerce of Man National Wealth 2. Cannot be acquired through prescription 3. Cannot be levied upon execution or attachment NOTE: Art XII, Sec 3 of the 1987 Constitution: 4. In general, may be used by everybody except Lands of Public Domain properties intended for public services 1. Agricultural – can be alienated 5. May be real or personal property 2. Forest/ Timber 6. Cannot be burdened by voluntary easement 3. Mineral 7. May either be real or personal property 4. National Park Q: What is the “Doctrine of Jura Regalia”? Q: Does the collection of fees for the use of public property affect its public character? A: All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential A: No. In Manila International Airport Authority v. CA, it was energy, fisheries, forests or timber, wildlife, flora and fauna, held that as long as the property is intended for public use, it and other natural resources are owned by the State. With the will remain property for public dominion notwithstanding the exception of agricultural lands, all other natural resources fact that fees have been collected from the people. Such fees shall not be alienated. The exploration, development, and collected will not affect the character of the property as such utilization of natural resources shall be under the full control are only used for maintenance purposes. and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per Art. 421. All other property of the State, which is not of the centum of whose capital is owned by such citizens. Such character stated in the preceding article, is patrimonial agreements may be for a period not exceeding twenty-five property. (340a) Facultad de Derecho Civil 8 UNIVERSITY OF SANTO TOMAS NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ Q: What are patrimonial property of the state? Q: What if the property is abandoned, can it be alienated already? A: These are properties of the state which is not intended for public use, public service or for the development of the A: No. A formal declaration from the Executive Department national wealth. that the property is no longer intended for public use or public service is a condition sine qua non for it to be These are acquired by the state in its private capacity. Hence, converted to patrimonial property. it can be subject to prescription or appropriation and can be an object of ordinary contracts or agreements. Q: Can the local government declare or withdraw a public property from public use? Q: What is the coverage of patrimonial property? A: Generally, no. Except when the power or authority is A: granted by law. 1. Owned by the State in a private / proprietary capacity 2. Properties of Public Dominion no longer intended for public use or public service Art. 423. The property of provinces, cities, and Q: How can a property be classified as a patrimonial municipalities is divided into property for public use and property? patrimonial property. (343) A: An Executive or Legislative act is necessary to reclassify property into patrimonial. The conversion cannot be inferred from non-use. Art. 424. Property for public use, in the provinces, cities, and municipalities, consist of the provincial roads, city streets, Examples: municipal streets, the squares, fountains, public waters, 1. Friar Lands (Act 1120) – lands acquired by the promenades, and public works for public service paid for by government from religious corporations or orders said provinces, cities, or municipalities. 2. Alienable and Disposable Lands of Public Domain 3. Lands Covered by RA7227 – military reservations no All other property possessed by any of them is patrimonial longer needed for defense or military purposes are and shall be governed by this Code, without prejudice to the reclassified as patrimonial properties provisions of special laws. (344a) 4. Reclaimed lands along Pasay City including that of MOA NOTE: a. Provinicial roads b. city streets c. municipal streets Art. 422. Property of public dominion, when no longer d. squares, fountains intended for public use or for public service, shall form part e. public waters; and of the patrimonial property of the State. (341a) f. public works for public service Q: What is the coverage of patrimonial property? Local government cannot withdraw a place for public se and declare such as patrimonial without the grant from congress. A: 1. Owned by the State in a private / proprietary capacity Even if a public plaza is built on a private land, it shall be 2. Properties of Public Dominion no longer intended for considered as property for public use and the owner of the public use or public service land is deemed to have waived waived his right over the land due to the continuous enjoyment and use of such as public Q: Can the property of public dominion intended for the plaza. development of national wealth be converted to patrimonial property? Classification of municipal property devoted for distinctly governmental purposes as public, under the Law of Municipal A: No. Only property for public dominion intended for public Corporations (Special Law) should prevail over the Civil Code use and public service when no longer intended for that (General Law). purpose may be converted to patrimonial property and excluded those intended for the development of national wealth. Facultad de Derecho Civil 9 UNIVERSITY OF SANTO TOMAS NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ LGUs have no authority to control or regulate the use of to include, respectively, the things enumerated in Chapter 1 public properties unless specific authority is vested upon and Chapter 2. them by Congress Whenever the word "muebles," or "furniture," is used alone, it shall not be deemed to include money, credits, Q: What are the classification of property of political commercial securities, stocks and bonds, jewelry, scientific subdivisions of the state? or artistic collections, books, medals, arms, clothing, horses or carriages and their accessories, grains, liquids and A: merchandise, or other things which do not have as their 1. Property for public use principal object the furnishing or ornamenting of a building, 2. Patrimonial property except where from the context of the law, or the individual declaration, the contrary clearly appears. (346a) Property for public use in provinces, cities and municipalities are governed by the same rules as property of public dominion of same character. Hence, it is outside the commerce of man. As long as they are devoted for public use or intended for public use, they are not subject to ordinary contracts, cannot be donated, attached, or levied upon on execution. Title II. - OWNERSHIP CHAPTER 1 Art. 425. Property of private ownership, besides the OWNERSHIP IN GENERAL patrimonial property of the State, provinces, cities, and municipalities, consists of all property belonging to private Art. 427. Ownership may be exercised over things or rights. persons, either individually or collectively. (345a) (n) Q: Who may own lands? Q: What is ownership? A: Only Filipino citizens can acquire alienable and disposable A: Juridical relation of a person over a thing by virtue of public lands. which said person has the exclusive power or authority to receive all the benefits and advantages arising from said Q: Can alien acquire private ownership over the lands? thing, save those restricted by law or by recognized rights of others. A: As a general rule, aliens have no right to acquire any public or private lands in the Philippines. However, through Bundle of rights that may be exercised over a property; hereditary succession, an alien may acquire alienable and independent right of exclusive enjoyment and control of the disposable land. thing for the purpose of deriving therefrom all advantages required by the reasonable needs of the owner (holder of Q: What is the KRIVENKO DOCTRINE? right) and the promotion of the general welfare but subject to the restrictions imposed by law and the right of owner; A: The capacity to acquire private lands is made dependent real right to enjoy, dispose, exclude and recover [EDER] a on the capacity to acquire lands of public domain. thing without limit other than those required by law or imposed by the owner himself Under the Krivenko Doctrine, non-Filipinos cannot acquire or hold title to private lands or to the lands of the public A thing pertaining to one person is completely subject to his dominion except only by way of legal succession. will in everything not prohibited by law. It is an independent right. Can refer to both things and rights PROVISIONS COMMON TO THE THREE PRECEDING Q: What is dominion? CHAPTERS A: Absolute control over a property except as may be Art. 426. Whenever by provision of the law, or an individual restrained by law. declaration, the expression "immovable things or property," or "movable things or property," is used, it shall be deemed Q: What are the kinds of ownership? Facultad de Derecho Civil 10 UNIVERSITY OF SANTO TOMAS Right to enclose A: A. This right is given 1. Co-ownership.ownership belongs to only one person 4. Naked ownership. Accion reinvindicatoria 1. NOTE: Q: What are the kinds of ownership? Naked ownership + Usufruct = FULL OWNERSHIP A: Full ownership – Naked Ownership = USUFRUCT 1. Also. Right to exclude any person from enjoyment and disposal The owner has also a right of action against the holder and of the property (Art429. Co-ownership. NCC) 8. benefits which accrue 7. (Art428 par2. Right to enclose or fence the land or tenement (Art430. Jus Possidendi. Jus abutendi (to abuse) Q: What are the actions for the recovery of possession? 6. NCC) Art. Right to just compensation in case of eminent domain from a thing (jus fruendi). Right to exclude 7. Full ownership.this is ownership where the right to 5.Right to Possess the use and the fruits has been denied. Note that the right to destroy subject to restrictions 9. The owner has the right to enjoy and dispose of a 2.Right to dispose or alienate Facultad de Derecho Civil 11 UNIVERSITY OF SANTO TOMAS . Right to accession (Art440.Right to use the property without destroying the substance B. fruits. 2. Right to recover a thing Alternative answer: Recover the possession of his property which is unlawfully taken or withheld from him by another. Right to hidden treasure found in the owner’s property imposed by law. Right to demand indemnity for damages suffered due to lawful interference by a third person to avert an 1. Jus fruendi (to fruits) 3. Jus vindicandi (to recover) 5. Jus dispodendi (to dispose) ACTIONS FOR RECOVERY OF POSSESSION 4. Forcible entry or unlawful detainer 2. fruendi. The reason 4.this includes all rights of an owner its use 2. NCC) destroy/dispose. NCC) It is the right to collect the rents. 10. For Real Property Q: What are the attributes of Ownership? 1. Jus Disponendi. Jus Abutendi. Right to dispose of a things and excavations on the surface or subsurface of the land It includes the right to sell. Jus Utendi . the right to chose not to (Art438. 6. Sole ownership. Jus utendi (to use) only to owner. jus more owners. NCC) 4. (Art435.case of usufruct. NCC) 3 RIGHTS OF OWNER: 6. Right to construct any works or make any plantations 2. Jus Vindicandi. Naked ownership.includes all the rights of an owner Full ownership – Usufruct = NAKED OWNERSHIP 2. alienate and encumber his (Art437. 428. Replevin 3. NCC) 3.UST Faculty of Civil Law ___________________________ A: 4. Right to enjoy the property (Art428 par1. Right to enjoy a thing imminent danger (Art432. jus possidendi and jus abutendi.Right to the fruits 1. donate. NCC) property. NCC) thing. Sole ownership. Full ownership.Right to abuse or to consume the thing by 1. 428 mentions only three rights. Jus Fruendi. Right to dispose the property (Art428 par1. NCC) possessor of the thing in order to recover it.ownership belongs to 2 or more Q: What are the Rights of an Owner? A: 1.NOTES ON PROPERTY Kenneth & King Hizon (2A). without other limitations than those established by 3.Right to recover 3. Accion publiciana A: 3. Art. right to use and right to fruits has been denied RIGHTS OF AN OWNER 3.when the ownership is vested in 2 or for this is that the right to enjoy is included in jus utendi.where the ownership is vested only in one person Noteworthily. Right to recover property from any holder or possessor law. (348a) 5. For Personal Property 2. Strategy NOTE: Possession by the 3 rd d. but the action filed is an action Not the proper remedy if the publiciana? purpose is not to recover possession but to exact A: Yes. Power of taxation ownership of property by iii. Threat person is initially lawful e. Expiration of FORCIBLE ENTRY ACCION PUBLICIANA building is being unlawfully lease Filed 1 year from the time of Filed 1 year after the withheld after the expiration b. express or implied but upon Concerned with the issue of Concerned with the issue of expiration or termination of right to physical possession who has the better right of the same.action Within 1 year when possession by a from unlawful landlord.is an Forcible Entry – a summary Within 1 year Mere physical order directing the sheriff to action to recover material or from possession (de enter into the land and give physical possession of real dispossession facto) not the possession thereof to the property when a person juridical person entitled under originally in possession was possession nor judgment deprived through: ownership a. Stealth A: These actions is filed where in the complaint it does not aver the state how the entry is affected and when NOTE: The possession is dispossession started. Date of unlawful possession through: unlawful possession without or termination of the right to demand to a. requiring the defendant to do something or give back the possession PARTICULARS PRESCRIPTIVE ISSUE of the land PERIOD Writ of possession. the person of real property possession over real property withheld the property from Filed at MTC Filed at RTC its lawful owner.UST Faculty of Civil Law ___________________________ C. Easement relating to waters property under Rule 60 ii. iv. or possession A: other person of any land or a. Within 10 to 30 ownership (a) Imposed by state action to recover possession years i. Light an view Facultad de Derecho Civil 12 UNIVERSITY OF SANTO TOMAS . vendee. Force FISTS. Party wall mandatory injunction. Force b. notwithstanding and hold possession by virtue of vacate b. Writ of preliminary mandatory injunction of forcible entry and during 2. Intimidation Q: When is accion publiciana or accion reinvindicatoria may c. Power of eminent domain plaintiff Replevin-action or provisional remedy for (b) Imposed by law such as legal easements recovery of personal i. Stealth through a contract. Q: Is there a situation where a basis for unlawful taking is a ground for forcible entry. Unlawful detainer. specific performance Action publiciana. Ancillary remedies common to both availed of in an original case 1. vendor. Intimidation shall prescribe in 10 years a contract express or implied c. Strategy be filed? d. thus the owner cannot exercise his rights over the property.plenary Within 10 years Possession de LIMITATIONS ON THE RIGHT OF OWNERSHIP action to recover the better which will reckon jure (juridical right of possession 1 year after the possession) Q: What are the limitations on the right of ownership? unlawful NOTE: There is absence of possession FISTS A: Action reinvindicatoria. unlawful from the very beginning Q: Distinguish forcible entry and acction publiciana. Police power based on allegations of ii. Right of way Writ of preliminary iii. Threat e.NOTES ON PROPERTY Kenneth & King Hizon (2A). Writ of possession the appeal. lease. CA141 – Lands acquired under free patent or person from taking the former’s property. In the people by restraining and regulating liberty and property. even if excusable. law into his own lands. Reasonable force is used A: 2. Legal Easement PRINCIPLE OF SELF-HELP 2. price can there be an expropriation. Easement against nuissane viii.UST Faculty of Civil Law ___________________________ v.NOTES ON PROPERTY Kenneth & King Hizon (2A). he is acting as a negotiorum gestor. he may use such force as may be reasonably necessary to repel or prevent an actual Q: What are the limitations on Ownership imposed by Law? or threatened unlawful physical invasion or usurpation of his property. Lateral and subjacent support (c) Imposed by the owner Art. 429. It is subject to just compensation and due process of law. 430. Every owner may enclose or fence his land or tenements by means of walls. NCC – during a period of public want or emergency. 4. Drainage A: The power of the government to raise revenue in order to vi. Such force is used by the owner or lawful possessor 1. The owner or lawful possessor of a thing has the (d) Imposed by the grantor right to exclude any person from the enjoyment and (e) Imposed by the constitution disposal thereof. There is no delay 2. The threat is actual if patent threatened unlawful physical invasion. force homestead cannot be subject to encumbrance or must be reasonable necessary to repel the unlawful physical alienation within five years from the issuance of the invasion or usurpation of property. the owner or lawful possessor must resort to judicial process for recovery of property for he is no longer justified in taking the NOTE: Perpetual prohibition to alienate is void. live or dead hedges. Q: What is the power of eminent domain? Q: What is the test of reasonableness? A: The inherent power of the State that enables it to forcibly acquire private lands intended for public use upon payment A:The reasonableness of the defensive acts resorted to by a of just compensation to the owner. a third person who is not a possessor may repel the of promoting general welfare. However. commodatum. For this purpose. Art25. such an event. When owner transmits his property to another person 4. Q: What is the power of taxation? Art. Donor or testator may prohibit partition of property for a period not exceeding 20years) A: Once delay has taken place. Facultad de Derecho Civil 13 UNIVERSITY OF SANTO TOMAS . comfort and convenience of unlawful possession on the property owned by another. Actual or threatened physical invasion or usurpation or (examples. Sec118. Intermediate distances support its existence and carry out its legitimate objectives vii. Legitime 5. accession continua) Q: What are the requisites under principle of self-help? Q: What are the limitations Imposed by the Owner Himself? A: 1. thoughtless extravagance in expense for Q: What is the PRINCIPLE OF SELF-HELP? pleasure or display may be stopped by order of the courts at the instance of any government or private A: Authorizes an owner or lawful possessor of a property to charitable institution use reasonable counter-force to prevent or stop another 3. donation or will) immediately after the dispossession to regain possession 3. Conflict of Private Rights (example. Voluntary Easement 3. rd Q: What is police power? Q: Can the right of self-help be exercised with 3 persons? A: The inherent power of the state exercised for the purpose A: Yes. (n) A: 1. It is only applicable where possessor is determined not by what he imagined to exist but the owner is unwilling to sell or cannot accept the purchase by the objective situation. Owner imposes restrictions or limitations on the right of ownership at the time he continues to be the owner of Q: What is the effect of delay? the property (ex. ditches. the owner must indemnify him for injuries sustained. is much greater. Principle of the Least Evil interfering with the danger to himself or to property another person or their Q: What is the basis of Art. DOCTRINE OF INCOMPLETE PRIVILEGE OR DOCTRINE OF Q: Differentiate the Doctrine of Self-Help from Doctrine of STATE OF NECESSITY State of Necessity. the owner of the sacrificial property is obliged to ownership? tolerate the act of destruction but is subject to reimbursement by all those who benefited. A: There is disputable presumption of ownership when a person is in actual possession of the property under the claim The interference is indispensible to avert the threatened of ownership. Thus. 431. If the owner himself is enclose or fence one’s land or tenement? the cause of the imminent danger. 1. Damage to another is much greater than damage to property Art. (n) benefited from the destruction of his property. if the interference is necessary to avert an imminent danger and the threatened Q: What is the right of the owner whose property is damage. the DOCTRINE OF STATE OF NECESSITY will prevail. Q: When can there be a disputable presumption of In this case. Facultad de Derecho Civil 14 UNIVERSITY OF SANTO TOMAS . no indemnification. Actual possession under claim of ownership raises disputable presumption of ownership. 432. convincing evidence to the contrary. 433. The owner of a thing cannot make use thereof in such manner as to injure the rights of a third person.NOTES ON PROPERTY Kenneth & King Hizon (2A). no servitude A: or easement constituted thereon should be impaired. compared to the damage arising to the owner from destructed by reason of the state of necessity? the interference. his act is illegal. (388) If a person thought that he is in a state of necessity when actually he is not and in the process he destroyed the Q: What is the limitation on the right of the owner to property of another. (n) NOTE: In case of conflict. 432? property A: It is based on the Doctrine of State of Necessity which is likened to a justifying circumstance under the RPC.: A person cannot interfere with the right of ownership Doctrine of Self-Help State of Necessity with another Invoked by the owner or Availed by another person lawful possessor in against someone else’s XPNs: protection of his right to property for the purpose of 1. because there is no unlawful Property owner can use his property in any manner he aggression when a person or group of persons acts pursuant desires provided he does not injure the rights of others to the right given in a state of necessity. GR. No Criminal Liability or Civil Liability Except: civil liability borne by persons for whose benefit the harm has been Art. clear and imminent. The true owner must A: It is the principle which authorizes the destruction of resort to judicial process for the recovery of the property. A: Every owner may enclose or fence his land or tenement by Q: What are the requisites under this Doctrine? means of walls. live or dead hedges or by any other means provided that in so fencing the property. interference of another with the same. Doctrine of incomplete privilege or state of necessity prevent other persons from averting an imminent 2.UST Faculty of Civil Law ___________________________ or by any other means without detriment to servitudes constituted thereon. the person in possession of the property damage or danger. Interference necessary to avert an imminent danger and rd the threatened damage to the actor or a 3 person 2. The owner of a thing has no right to prohibit the prevented. property which is lesser in value to avert the danger poised to (n) another property the value of which is much greater. Q: What is the Doctrine of State of Necessity? Art. The owner may demand from the person benefited indemnity for the damage to A: The owner will seek reimbursement from all those who him. Note that the danger or damage must be is presumed to be the owner subject to strong. ditches. whether registered or not for public use upon payment of just compensation. whenever it is needed it will be title and not on the weakness of the defendant's claim. The plaintiff must properly identified the property 1. all those who have lawful interest in the property to be on the weakness of defendant’s title. 3. Q: What are the requirements to prove the claim? Q: What is expropriation? A: 1. condemned To identify the property. Possessor in good faith. the claim of the actual Q: What are the requisites of Eminent Domain? possessor of the land will prevail because he is the presumed owner A: b. The plaintiff must rely on the strength of his title and not 2. The owners and all other persons owning. Full ownership or fee simple title to the petitioner – remains the full owner regardless of the disappearance or cessation of the public need of the property Art. occupying or 2. Possessor is presumed the owner domain? 3. not required to always carry proof of ownership A: 4. Possible that neither is the true owner. Subject to a condition. defendant- possessor is preferred Q: What are the characteristics of the power of eminent 2. restore the owner Q: What is the formula for Just compensation? in his possession. The plaintiff must have better title over the defendant claiming to own the property. or abandoned. strong and credible a.UST Faculty of Civil Law ___________________________ EMINENT DOMAIN Q: What is the resort of the owner rebutting the presumption? Q: What is the power of eminent domain? A: The owner may resort to judicial process to recover the A: It is the power or right of the state to acquire property property of the person. Where both parties are equally at fault. If both claims are weak. In an action to recover. the plaintiff must establish the Q: Can the previous owner get back the property? boundary of the land then and the established boundaries must be exactly the same with the surveyed one. No person shall be deprived of his property except b. and the plaintiff must rely on the strength of his (4) all encompassing. the (1) private property as the object of expropriation condition of the possessor is the best (2) property is taken by the state or competent authority Q: Why can’t the plaintiff rely on weakness of defendant? (3) public use (4) attended with due process A: (5) just compensation 1. the courts shall protect and. Title must be clear. the original owner of the property would reacquire the property Should this requirement be not first complied with.it will revert to the owner by competent authority and for public use and always upon when the purpose of the expropriation is terminated payment of just compensation. in a proper case.NOTES ON PROPERTY Kenneth & King Hizon (2A). 2. 435. the property must be merely confirms) identified. (n) given Q: What are the requisites for the action to recover? Q: Who are the defendants in an expropriation case? A: A: 1. (349a) A: Facultad de Derecho Civil 15 UNIVERSITY OF SANTO TOMAS . a. Failure to A: It depends on the tenor of the decree of expropriation do so will justify the dismissal of action. He who alleges must prove (1) inherent power of the state lodged with the legislative (2) superior right to acquire (3) independent existence from the state (constitution Art. Proper identification of the property A: Refers to the procedure by which the property is acquired. 434. interest of the general public (public safety. (n) Q: What are consequential damages? POLICE POWER A: Injuries which the owner of the property subject of Q: What is police power? expropriation had suffered by reason of the expropriation other than the loss of the property expropriated A: The inherent power of the state exercised for the purpose of promoting general welfare. unless he can show that such condemnation consequential damages. unless there is an express stipulation that if the expropriated properly Q: What is the extent of the ownership of a parcel of land? ceases to serve its public use. without detriment to servitudes and subject to special laws and ordinances. However. it inures to the benefit of public welfare. no payment of JC unless condemnation is unjustified property whichever transpires first (value that property will 5. He is also the owner of the aerial space exactly corresponding to the size of his land subject to reasonable requirements of aerial navigation. to solve the problem of squatting. (350a) purchase. and the private owner was not paid of just NOTE: When condemnation is justified. he cannot recover the property. due process the time of filing of the complaint or time of taking the 4.NOTES ON PROPERTY Kenneth & King Hizon (2A). determined at 3. when the property is expropriated for public use. minus (-) the consequential benefits or seizure is unjustified. always no indemnification law allows that just compensation be not paid immediately at the time of taking. Socialized Housing is extra ordinary expropriation – e. The owner of a parcel of land is the owner of its surface and of everything under it. 436. A: Q: How do you determine the market value? 1. no valid exercide of compensation. health. owner must be indemnified bring. When any property is condemned or seized by competent authority in the interest of health.D. the private owner may recover the property if it is paid within the reasonable time prescribed by the law.UST Faculty of Civil Law ___________________________ security. means employed is necessary occupation of the property by the petitioner. it is for Police power Eminent Domain private purpose. and he can construct Q: When the expropriated property is no longer used for thereon any works or make any plantations and excavations public purpose can the previous owner recover? which he may deem proper. which is 5 years from the finality of judgment. He A: No. Q: Differentiate police power from eminent domain? Q: Can private property be expropriated for private use? A: A: Yes. 437. or by navigation. safety or Q: What is surface right? Facultad de Derecho Civil 16 UNIVERSITY OF SANTO TOMAS . When PP is properly exercised. No payment of JC With payment of JC Property destroyed/ Property taken for public Q: What is the effect when just compensation is not paid? condemned use A: As a general rule. comfort and convenience of Q: What are consequential benefits? the people by restraining and regulating liberty and property. Art.g. one who is not obliged to sell and one who is not obliged to sell). while the act. Art. for public use in fee cannot complain of the reasonable requirements of aerial simple unconditionally. the former owner retains no rights in the land SURFACE RIGHT The nature of the title transfer is ABSOLUTE. the indemnity is based on damages caused by an illegal the COA for the claim of sum of money. he may go to PP. the same shall revert to the previous owner A: The owner of parcel of land is also the owner of the surface and sub-surface thereof. Although. either by the exercise of E. the owner thereof shall not be entitled to JUST COMPENSATION = market value plus (+) the compensation. A: Gains or advantages which the property owner will enjoy A: What are the requisites for exercise of police power? by reason of the expropriation. When land has been acquired. security) A: Market value is fixed at as of the date of actual taking or 2. or which constitutes an actual interference with his possession Q: What are the extent of ownership? or his beneficial use thereof. Any use of development of national wealth. (351a) A: Owner of land has rights not only to its surface but also to everything underneath and the airspace above it up to a reasonable height Art.It extends up to the reasonable share of the treasure. the finder is a trespasser. he shall not be entitled to any b. for legal purposes. or other property on which it is found. or of the State or any of its subdivisions.UST Faculty of Civil Law ___________________________ When it is said that man owns. in relation to the exploitation that may be Nevertheless. Horizontally: extends up to the boundaries 2. owners are A: entitled to just compensation G. the Q: What is Ad coelum? State may acquire them at their just price. excavations made must not prejudice easements HIDDEN TREASURE and servitudes 2. it will make of it as part of his enjoyment of the land.NOTES ON PROPERTY Kenneth & King Hizon (2A). to the heavens. (352) 1. jewelry. To this extent.extends below the surface and above it building. Subject to special laws and ordinances Q: What is hidden treasure? 3. such air or space by others which is injurious to his land. Cannot detriment servitudes. to the extent required by the economic utility to the owner. plantations. the consent of the owners of the lands affected deprived the owners in the construction of motorized deep wells – Q: State the rule regarding hidden treasure. would be trespass for which he would have a remedy. Caves are part of national wealth – apply regalian doctrine whether the entrance is located in a private or public land XPN: If the finder is different from the owner. 438. hence. Upwards/airspace. It does not refer to raw materials which are considered of value Construction of underground tunnels by NAPOCOR without which are considered as natural resources. precious objects (gold bar. rights over a land are indivisible – land must either be completely mineral or completely Hidden treasures refer to processed items such as deposit of agricultural. or other precious objects. it totally belongs to the owner of the land. jewelry or other precious objects. or other property where it is found.R. underground tunnel imposed limitations on Ibrahim’s use of property (esp. Subject to reasonable requirements of aerial navigation A: Any hidden and unknown deposit of money. the finder is and whether entrance is naturally formed or manmade (RA entitled to 1/2 9072 – National Caves and Cave Resources Management and Protection Act) Q: What are the requisites to be entitled to ½ share? Facultad de Derecho Civil 17 UNIVERSITY OF SANTO TOMAS . By treasure is understood. the lawful ownership of which does Lands cannot be classified as mineral underneath and not appear. silver coins). the lawful ownership of which does not A: appear.: If owner is finder. or may own. However. Hidden treasure belongs to the owner of the land. money. agricultural on the surface. be owned by the State pursuant to Regalian Doctrine as these his title to the air is paramount. a. No other person can acquire minerals form part of the property of the State for the any title or exclusive right to any space above him. which shall be divided in conformity with the rule stated.works. Downwards. 439. when the discovery is made on the property made of the property. when minerals are found in it. Vertically: Art. requirements of aerial navigation If the things found be of interest to science of the arts. But minerals and power of another. one-half thereof shall be allowed to the finder. A: The right extended to the owner of parcel of land with that merely means that no one can acquire a right to the respect to its sub-surface is up to the extent that the owner space above him that will limit him in whatever use he can could utilize it. and by resources of the subsoil pertains to the State chance. the sub-terrain portion). any Q: What are the limitations or restrictions to ownership? hidden and unknown deposit of money. building. jewelry. If pursuant to the Regalian Doctrine. A: 1. Archeological artifacts c. A scavenger found a bag filled with bank notes and cash in a dumpsite will it be considered a hidden treasure? A: The finder had no intention to search for the treasure. Within private lands – 30% to the government. Under PD 172. Discovery was made on the property of another. If there is an agreement between the owner and the hired men then the latter will be entitled for a NOTE: The state may in the interest of science or arts acquire portion of the treasure.Right of Accession with Respect to proceeds? What is Produced by Property A: Q: What is right of accession? 1. shipwrecks / sunken vessels recovery exclusively for materials of cultural and historical values such as: a. 440. whether naturally or 3. It depends.UST Faculty of Civil Law ___________________________ A: Q. 50% to permit holder Q: What is accession continua? Q. 25% is granted to the finder and 75% will required for the discovery / recovery of hidden treasures. in RIGHT OF ACCESSION relation to EO 35 – permits for treasures which are not of cultural and historical value whether or not hunting is to be GENERAL PROVISIONS conducted on private or governmental land and upon discovery is turned over to National Museum for Art. attached. the treasure such hidden treasure at a just price. A: No. Absent such agreement. Discovery was made by chance 3. either naturally or negative. or of man for the purpose of finding a hidden treasure. as well as to all things inseparably shared by permit holder and landowner attached or incorporated thereto. Shipwreck / sunken vessel recovery – 50% to artificially produced. A. The note’s identity can be traced easily. What if the owner of the land hired services of a group of 1. A. and the finder for the search of the treasure. Other materials embodying the cultural and natural heritage of the Filipino nation as well as those of foreign origin CHAPTER 3 DENR AO 2002-04 as amended by DENR AO 2004-2003. Arts b. belong to the State. one of the requisites of hidden treasure is lacking that is that the owner appears to Q: Is a trespasser entitled to get a share? be unknown. . The ownership of property gives the right by determination of whether it has cultural or historical value – accession to everything which is produced thereby. Bills and notes from the banks have serial numbers. items will be given to National Museum. 70% the products of said thing. What if the treasure cannot be divided? A: Right to things attached or incorporated. (353) Q: What is the rule regarding the sharing of the net SECTION 1. Relics e. incorporated. How about the Yamashita treasure? RA 8492 (National Museum Act of 1998) – permits are A. 25% to permit holder A: Right of ownership of which an owner of a thing has over 2. He is not a trespasser or agent of the landowner. if there is the State or any of its political subdivisions indeed a hidden treasure. turned over to an oversight committee of DENR artificially. Q. if is incorporated or attached thereto. Within public lands – 75% to government. There is no agreement between the owner of the property A. Q: What is the meaning of ‘By Chance”? Q. or which if affirmative. Co-ownership between the finder and owner of the land will be created Q: What are the classification of accession? A: Facultad de Derecho Civil 18 UNIVERSITY OF SANTO TOMAS . Ecofacts d. government. who owns the hidden treasure? 2. belongs to the owner of the property.NOTES ON PROPERTY Kenneth & King Hizon (2A). No. he cannot be allowed to benefit for his unlawful act. Accession to the fruits (discreta) 1. planting Industrial fruits are those produced by lands of any kind ii. it is sufficient that they are in the womb of the mother. Law appear without intervention of human labor g. Industrial fruits 3.formation of islands b. KINDS OF FRUITS Q: Under Art. Building ii. i. Tradition i. Personal property Art. the price of leases of i. As a consequence of contracts Q: What are industrial fruits? A: Industrial fruits are those produced by lands of any kind through cultivation or labor. 712. Art. To the owner belongs: (1) The natural fruits.attachment iii. Prescription Q: What are the 2 Kinds of Natural Fruits d. (357) Q: Is accession a mode of acquiring ownership? A: No. natural fruits. NCC) c. (356) ii. He who receives the fruits has the obligation to pay 1. A: and the young and other products of animals. Intellectual Creation 2.UST Faculty of Civil Law ___________________________ I. Only such as are manifest or born are considered as natural or industrial fruits. (355a) iii. 441. 444. (3) The civil fruits. (354) A: Civil fruits are the rents of buildings. b. Civil fruits II. engraftment gathering. Accession natural Civil fruits are the rents of buildings. what are the modes of acquiring Q: What are natural fruits? ownership? A: Natural fruits are the spontaneous products of the soil. b. avulsion life annuities or other similar income. although unborn. industrial fruits. Real Property Art. Succession 1. respect to what is produced by his property? Q: The general rule is that the fruits will belong A: To the owner belongs the: automatically the owner of the thing which produces fruits Facultad de Derecho Civil 19 UNIVERSITY OF SANTO TOMAS . Accession industrial soil. Q: What are civil fruits? (2) The industrial fruits. Natural fruits 2.writing Art. alluvium lands and other property and the amount of perpetual or ii. and preservation. weaving iv.change of course of rivers iv. Occupation c. a. Accession by attachment or incorporation (continua) a. the price of leases of lands and other property and the amount of perpetual or life Q: What is the rule on the owners right of accession with annuities or other similar income. Natural fruits are the spontaneous products of the 1. sowing through cultivation or labor. civil fruits. 442. Young and other products of animals h. (Art. Mixture 3. a.NOTES ON PROPERTY Kenneth & King Hizon (2A). and the young and other products of animals. 441. Donation e. 443. 2. Spontaneous products of the soil – those which f.painting v. 2. specification With respect to animals. Adjunction or conjunction the expenses made by a third person in their production. express or time was the young produced by a mother animal. value is less than the value of the land. applying statutory construction (history of the provision). unless the contrary is proved. with roof for person residential. unless contrary is proved Q: What is the rule regarding the animals? Q: What is accession continua? A: With respect to animals. it (e) fruits of property donated and subject to collation shall belong to conjugal partnership subject to reimbursement of the value of the land to the owner Q: Who are the principal parties in accession? spouse 2. lessee who gets the the improvements made belong to the owner of the land. sowing – act of scattering or spreading of germinated fruit from a third person? seeds indiscriminately or evenly A: He who receives the fruits has the obligation to pay the expenses made by a third person in their production. hence considering human intervention. It depends on two options. (d) possessor in good faith. on owners. and preservation. entitled to fruits received before before the possessor is legally interrupted in his Exceptions: possession 1. .UST Faculty of Civil Law ___________________________ following the principle that accessory follows the principal. and planting are presumed gathering. sowing. planted or sown on the land of another and the improvements or repairs made thereon. First. All works.NOTES ON PROPERTY Kenneth & King Hizon (2A). All works are presumed made by the owner at his expenses. between or among the owners of different things had foreseen during 1950’s that cloning would be possible involved. if any and then to the principal Whatever is built. What are the exceptions? Art. it can now be considered as industrial fruit. sower A: Obligation of the owner who receives the fruit from a third 1. subject to the reimbursement of the value 1. What kind of fruits are cloned animals? they cannot be separated from each other without causing substantial injury to the things involved. builder 3. Whatever is built. office. building – construction of any kind. Art. planter Q: What are the INDUSTRIAL ENDEAVORS? 4. if value of improvement is more than the value of land. parties shall be governed by their agreement and secondarily by law but not the law on accession continua SECTION 2. A: belong to the owner of the land. A: Accession Continua involves the union of two or more things belonging to different owners in such a manner that Q. It applies only where A. land owner – without which there can be no accession of the property of the CPG 2. planting – setting into the soil or land seeds of trees Q: What is the obligation of the owner who receives the 3. although unborn. usufructuary is entitled to fruits the BPS LO. commercial 2. it is sufficient that they are in the womb of the mother. made by the owner and at his expense. planted or sown on the land of another and (b) lease of lands which yield fruits. the other hand. 446. If there is an agreement. definitely the definition of natural fruit that This presupposes the absence of any agreement. Nobody implied. it shall belong to A: owner spouse. subject to the provisions of (a) antichresis – fruits pertain to the antichretic creditor with the following articles. (358) the obligation to apply the fruits to the payment of the interest first. fruits This rule is however subject to the good faith or bad faith of (c) usufruct. applying the literal there is controversy as to who shall be entitled to the definition of the law that even if the animal is made through resulting union of 2 or more things belonging to different the intervention o man.Right of Accession with Respect RULES: to Immovable Property Facultad de Derecho Civil 20 UNIVERSITY OF SANTO TOMAS . (359) NOTE: Only such as are manifest or born are considered as natural or industrial fruits. it is considered as a natural fruit. social. 445. Art. Oblige b/p to pay price of land and sower to pay rent (value of the land must not be greater than value of A: Possesses in any case contrary to the foregoing. or without the building or trees. shall pay their value. 548. reparation of damages. clubs or theatres – does not include partitions. railings. sowing or planting. the proper rent. Acquire after paying the 1. and upon him who accession? alleges bad faith on the part of the possessor rests the burden of proof. with a right to agree upon the terms of the lease and in case of be indemnified for damages. and the one who sowed. Q: What if the value of the land is greater than the value of Note that good faith is always presumed. B/P/S will be reimbursed for necessary and useful materials or the owner of the materials knew from the start expenses that his materials are used and did not oppose. Same as though both acted in good faith (in pari delicto rule built for the purpose of being used as man’s dwelling or for applies offices. GOOD FAITH 3. (361a) Q: What is GOOD FAITH? BUILDER. plantings. Accessory follows principal. appropriate as his own the works. if he acted in bad faith. If owner of the land believes that he is the owner of the materials or owner of the A: materials thought he is thought he is the owner of the land a. (360a) disagreement. 448. LAND OWNER IS BUILDER. Remove materials in any value of materials and event Q: What is industrial accession? indemnity for damages but 2. if the owner of the land does not choose to appropriate the However. Be indemnified for subject to the right of owner damages A: It applies only to those involving lands and material of materials to remove belonging to different owners GOOD FAITH BAD FAITH Acquire without paying Lose materials without right Q: What is a building? indemnity to be indemnified BAD FAITH A: It is a generic term for all architectural work with roof. Facultad de Derecho Civil 21 UNIVERSITY OF SANTO TOMAS . destroyed.UST Faculty of Civil Law ___________________________ 1. PLANTER. He who is in good faith may be held responsible but will not be penalized. he shall also be obliged to the price of the land. The parties shall the materials may remove them in any event. sown or planted in good faith. 447. Bad faith of one party neutralizes the bad faith of the Acquires the building. constructions or works being destroyed. There should be no unjust enrichment at the expense of for value of materials without plantings or the others. he shall pay reasonable rent. constructions being 5. plantings. Receive indemnity for 7. after personally or through another. In such case. 2. shall have the right to Art. The accession) landowner knows from the start that he is not the owner of c. the builder or planter cannot be obliged to buy have the right to remove them only in case he can do so the land if its value is considerably more than that of the without injury to the work constructed. To the owner of the thing belongs the extension or PLANTER. Land Owner may appropriate after indemnifying B/P/S with right of retention Q: What is BAD FAITH? b. OWNER OF MATERIALS 2. etc. 1. The owner of the land on which anything has been built. or SOWER increase of such thing. if the landowner acted in bad faith. counters and shelves. or to oblige the one who built or planted to pay the and.NOTES ON PROPERTY Kenneth & King Hizon (2A). Accession exists only if the incorporation is such that the value of materials separation would either seriously damage the thing or BAD FAITH GOOD FAITH diminish its value. 6. SOWER IN GOOD FAITH A: Not aware that there exists in his title or mode of Q: What is the rule when B/P/S is in good faith? acquisition any flaw which invalidates it. the court shall fix the terms thereof. constructions or payment of the indemnity provided for in Articles 546 and works with the materials of another. The owner of the materials shall However. the owner of building or trees after proper indemnity. The owner of the land who makes thereon. Bad faith involves liability for damages. Remove the materials if other – in pari delicto after paying the indemnity without injury to work or 4. in order to replace things in their former condition XPN: co-ownership is terminated at the expense of the person who built. compel the b. or sower to unless one is versed in the science of surveying. (n) Q: What are LUXURIOUS EXPENSES? BUILDER. plants or sows in bad faith on the A: land of another.UST Faculty of Civil Law ___________________________ A: If value of the land is greater than value of accession and owner does not appropriate. without which landowner is entitled to damages from the builder. loses what is built. or that the planting or sowing be removed. SOWER IN BAD FAITH A: Those which you do not need. planted or sown at latter’s expense boundaries of his land as prescribed in his certificate of title 3. no one can pay the reasonable rent determine the precise extent or location of his property by 4. entitled to reimbursement for the necessary expenses of preservation of the land. or he may compel the builder or planter to pay the price of When co-ownership is terminated by a partition and it the land. The purpose of this right is to necessary expenses of preservation of the land. loses the improvements without right of indemnity therefore A: Right granted as a security for the possessor’s (b/p/s) right to indemnity for the improvements made by him and he is Exception: The B/P/S/ is entitled to reimbursement for not bound to pay rent.p. (363a) appears that the house of an erstwhile co-owner has encroached upon a portion pertaining to another co-owner RIGHTS OF LAND OWNER IN GOOD FAITH which was however made in good faith. The builder. planter or sower in bad faith is for enhancement. A: Because the owner would still incur the expenses. or sower. The owner of the land on which anything has been GR: Art 448 cannot apply to a co-owner who is a b/p/s on the built. planted or sowed. seek damage from b. 452. LO has right of remotion -or- right to indemnity. PLANTER. the Q: They include repairs for the preservation.s merely examining his paper title Q: What are NECESSARY EXPENSES? Art. appropriate what has been built. court shall fix the terms GR: The builder planter sower in bad faith on the land of Q: What is the right of retention? another. planter thing will deteriorate. parties shall agree on the terms BUILDER. demand from builder to demolish or remove what has simply because he is supposedly presumed to know the been built. or sower is in bad faith? Art. If there is disagreement. planted or sown in bad faith may demand the land owned in common – governed by rules of co-ownership demolition of the work. planted or sown Bad faith cannot be imputed to a registered owner of land without obligation to pay indemnity when a part of his building enroaches upon a neighbor’s land 2.NOTES ON PROPERTY Kenneth & King Hizon (2A). 451. PLANTER. planter. Landowner can: 1. if not the property will deteriorate. SOWER IN BAD FAITH of Art448 should apply to determine the respective rights of the parties. to pay the price of the land. (n) Q: What are USEFUL EXPENSES? A: Expenses incurred for the greater utility or productivity or Art. Q: What are the rights of a land owner when the builder. In the cases of the two preceding articles. guarantee full and prompt reimbursement. SOWER IN GOOD FAITH of lease. 449. He who builds. then the provisions WHEN BUILDER. PLANTER.p. Q: What is the reason for the exception? There can be no offsetting of reimbursement for necessary and useful expenses with fruits received by the b/p/s. planted or sown without a. (362) Facultad de Derecho Civil 22 UNIVERSITY OF SANTO TOMAS . 450. Q: What if landowner refuses to exercise either option? A: Remedy is to compel the landowner to make a choice Art. and the sower the proper rent. it be the result of the action of the waters of the river (or sea. to compensate for his sufferings or burdens arising from land shall answer subsidiarily for their value and only in the the subjection of his land to encumbrances and legal event that the one who made use of them has no property easements with which to pay. 453. to offset his loss for possible erosion of his estate due to Art. not only on the part of the Q: What are the essential elements of accretion? person who built. Art. planter or sower proceeded in good faith. planted or sowed on the land of another.g. Facultad de Derecho Civil 23 UNIVERSITY OF SANTO TOMAS . Does he have to register it? value of the materials and labor. if from the sea deposit pertains to the state) It is understood that there is bad faith on the part of the 3.Oblige b/p to buy the land and sower to pay rent (even if value of the land is greater than the value of Q: What is alluvium? the accession) B/P/S may ask for reimbursement for necessary expenses A: It is the soil imperceptibly and gradually deposited on only lands adjoining the banks of rivers caused by the current of the water. If there was bad faith. but also on the part of the owner of such land. in the interest of agriculture it is more practical to give it to one who is in best position to cultivate it This provision shall not apply if the owner makes use of the right granted by article 450. (365a) A: Yes. Q: What is the effect of failure to register? good faith does not necessarily exclude negligence. The riparian owner must register the additional area. which gives right to damages under article 2176. 456. A: The process whereby the soil is so deposited or the process by which a riparian land gradually and imperceptibly receives addition made by the water to which the land is contiguous. (n) adjoining the banks of rivers? A: 1. (n) A: Failure to register the acquired alluvial deposit by accretion subjects such accretion to acquisition thru prescription by third persons. the rights of A: one and the other shall be the same as though both had 1. If the owner of the materials. (354a) Q: Who is the Riparian owner? A: He is the owner of the land adjoining rivers. Art. the latter may demand from the landowner the deposit can be seen. plants or seeds belong to a third the current of the river person who has not acted in bad faith. for reclamation purposes) and not to protect his property from destructive force of the water of the ACCRETION river? Q: What is accretion? A: They do not form part of the accretion. When the landowner acted in bad faith and the builder. the land where accretion takes place is the adjacent of landowner whenever the act was done with his knowledge the banks of river and without opposition on his part. 2. dikes) expressly intended by him to bring about from the effects of the current of the waters. 3. In the cases regulated in the preceding articles. To the owners of lands adjoining the banks of Q: What is the rule regarding the land caused by special rivers belong the accretion which they gradually receive works (e. If the materials. the additional area does not automatically become registered land. (336) accretion (e. Q: The general rule is that an alluvion is automatically plants or seeds has been paid by the builder. 454. Art. Art.NOTES ON PROPERTY Kenneth & King Hizon (2A). the Q: Why is the soil deposited granted to owners of lands provisions of article 447 shall apply.g. the owner of the 2. 457. deposit of soil or sediment be gradual and imperceptible acted in good faith. 455.UST Faculty of Civil Law ___________________________ b. planter or owned by the riparian owner from the moment the soil sower. alluvio belongs to the detached property is Q: What is a pond? owner of the land to retained subject to which the soil has removal within 2 A: A body of stagnant water without any outlet.UST Faculty of Civil Law ___________________________ Art. If such owners claim them. River beds which are abandoned through the natural change in the course of the waters ipso facto belong Note that the owner of the land which had segregated to the owners whose lands are occupied by the new course retains his ownership over the land provided he removes the in proportion to the area lost. 458. Trees uprooted and carried away by the current of the waters belong to the owner of the land upon which they may be cast. The portion of land must be such that it can be identified as coming from definite tenement. A: Transfer of known portion of land from one tenement to another by the force of the current. The owners of estates adjoining ponds or lagoons do not acquire the land left dry by the natural decrease of A: the waters. soil deposit is not identifiable floods. 459. but he still failed to remove it. exceed the value of the area occupied by the new bed. Note that when the sea moves towards the estate and the tide invades it. process is sudden and The owners of estates adjoining ponds or lagoons do not deposit is gradual and abrupt acquire the land left dry by the natural decrease of the imperceptible 2. this article does not apply if the river has breached out and created a new course without abandoning the Q: Differentiate alluvium and avulsion? original river bed. This rule does not apply to lakes. property detached is waters. if the owners do not claim them within six Art. ownership of 3. However. 460. otherwise there must be physical and actual removal. riparian owner the segregated portion. Dried up river for lack of flowing waters are Facultad de Derecho Civil 24 UNIVERSITY OF SANTO TOMAS . 461. (370a) Even if claim was made in 2 years. the owner of the safe place. he can no longer remove it after the lapse of 2 The owner of the invaded lad becomes the owner of the old years – claim is not equal to removal (actual/ physical). The claim does not require actual recovery. Art. so even after 6 months they may claim but not beyond 4 years AVULSION OR DELAYED ACCESSION Q: What is the basis of 4 years? Q: What is Avulsion? A: It is the prescriptive period for acquiring movables. However. Whenever the current of a river. the same becomes a foreshore land which consequently becomes part of the public domain. (368a) Trees uprooted are movable and must be claimed within 6 months. or lose that inundated by them in extraordinary 2. process of soil 1. It is river bed in proportion to the area lost. Art. provided that he removes the same within two years. identifiable 3. ownership of the Q: What is a lagoon? riparian owner is detached property is automatic not automatically A: Small lake but not very deep the hollow of which is vested bounded by the elevation of the land. which value shall not another tenement. been deposited years 4. (367) ALLUVIUM AVULSION 1. or lose that inundated by them in extraordinary floods. (369a) land to which the segregated portion belonged retains the ownership of it. they shall pay the segregates from an estate on its bank a known portion of expenses incurred in gathering them or putting them in a land and transfers it to another estate. creek or torrent months. the owners of the same from where it was annexed within two years from the lands adjoining the old bed shall have the right to acquire time it was segregated from its source and annexed to the same by paying the value thereof. ownership granted to 4.NOTES ON PROPERTY Kenneth & King Hizon (2A). The automatic only possible if there is an agreement to pay the other ownership is granted by law. the owner of the nearer margin shall be the sole owner thereof. the new river bed becomes property of public b. Art. changing its course by natural causes. 466. If equidistant from both banks – to the riparian owners Art.State dominion.NOTES ON PROPERTY Kenneth & King Hizon (2A). Islands which through successive accumulation of 3. without bad faith. If formed by the sea: i. (372a) a. 2. 462. (373a) Facultad de Derecho Civil 25 UNIVERSITY OF SANTO TOMAS . 463. change must be abrupt or sudden Art. Whenever a river. 462. in such a way that they form a single object and each of things united. (374) isolated piece of land. belong to the owners of the margins or Q: Who shall be the owner of the resulting object? banks nearest to each of them. Inseparable that their separation would impair their nature or result in substantial injury to either thing. If nearer to one margin or bank – to the nearer riparian owner ii. there must be abandonment by the owner of the bed way that they form a single object. If formed in non-navigable or non-floatable rivers: i.UST Faculty of Civil Law ___________________________ owned by the state since no owners were deprived of their land. change must be permanent different owners are. (375) invaded land becomes the owner of the abandoned bed to the extent as provided in Art. the owner of the former owner thereof for its value. 465. this bed A: shall become of public dominion. or navigable or floatable rivers . Outside territorial water – to the first occupant estate. FORMATION OF ISLANDS Q: What are the rules as to formation of Islands (Art. on lakes. or to the owners of both margins if the island is in the middle of the river. No positive act is needed ADJUNCTION on the part. United forming a single object. Q: What is adjunction? It does not apply to cases where the river simply dries up A: It is the process by virtue of which 2 movable things because there are no persons whose lands are occupied by belonging to different owners are. Q: What are the requisites under the 2 preceeding articles? A: SECTION 3. If formed in lakes. At least 2 movables belonging to different owners. 464. opens a new bed through a private estate. 463- 465)? Art. Whenever two movable things belonging to c. Q: What are the characteristics of Adjunction? (UST) Art. Whenever the current of a river divides itself into by halves branches. the owner of the land retains his ownership. If a single principal thing. without bad faith. alluvial deposits are formed in non-navigable and non- floatable rivers. c. united in such a d. the owner of the principal thing acquires the accessory. indemnifying the Once the river bed has been abandoned. Islands which may be formed on the seas within the jurisdiction of the Philippines. in which A: The resulting object shall belong to the owner of the case it shall be divided longitudinally in halves. there must be a natural change in the course of the with Respect to Movable Property waters of the rivers b. leaving a piece of land or part thereof isolated. united the waters of the river.Right of Accession a. but with the obligation to indemnify the island thus formed be more distant from one margin than owner of the accessory for the value of the latter. (371a) 1. from the other. and on A: navigable or floatable rivers belong to the State. and cuts a new bed in a private ii. the owner retains ownership of the current. He also retains There is no accession when islands are formed by the it if a portion of land is separated from the estate by the branching of river. . as it is subject thereto ipso jure from the moment of the moment the mode of acquisition is evident. Within territorial waters – State If a river changed its course. Facultad de Derecho Civil 26 UNIVERSITY OF SANTO TOMAS . That to which the other has been united as an ornament (377) or for its use or perfection. The thing which is added to or joined is the accessory and the other is the principal.paper will pertain to writer. 4. Soldering or soldadura: mere ornamentation. or for its use or perfection. The one which has the greater value is the principal. Test of Intention or Importance – which do you consider as 4. metal. if same volume. then the one with greater volume shall be considered as the principal. That of greater volume (468). If it cannot be determined by the rule given in the preceding article which of the two things incorporated is the 5. utility and volume of a. 470 paragraph 2: been united as an ornament. to the owner of the ring. even though for this purpose it be necessary to destroy the principal A: thing. Tejido or Weavering-dress will pertain to the weaver principal one. A: engraving and lithographs. If the owner of Art. or c. b. Q: What are the tests to determine the principal? In painting and sculpture. which the other has been united as an ornament. The principal thing. That of greater value 1. Escritura or writing. a. If they are of equal value. printed matter. That of greater volume 2. Pinture-canvass will pertain to the painter. the following shall (when the value and volume cannot be applied be applied: accroding to Senator Tolentino). the owner of the accessory thing shall have a Q: What are the primary factors to determine the Principal right to choose between the former paying him its value or and the Accessory? that the thing belonging to him be separated. utility and volume NOTE: If 3 or more objects involved.NOTES ON PROPERTY Kenneth & King Hizon (2A). and as between two things of equal value.if both the accessory and principal objects are of the same metal. and b. or for its 2. considered. only 1 is considered as the principal and the others are accessories. and Accessory? (if 2 things are of equal value (468) 3. conjuncrion? 2. is deemed to be that to which the other has but rather Art. 468. 467. an object may be Principal or accessory depending on the intention. that of the greater volume. That which has greater merits. or d. that of greater volume. based on the merit pertinent provisions applicable as well as the comparative merits. Rule of importance and purpose b. canvas. the thing of the greater value shall be so who owns the cloth. if same value. A: If the primary factors cannot be used. That of greater value. writings. Inclusion or engraftment. and in both cases. 1. furthermore. that one with greater value. (376) If the one who has acted in bad faith is the owner of the principal thing. there shall be indemnity for damages. That the thing which is incorporated to another as an ornament is the accessory and the other is the Q: What are the different classes of adjunction or principal. Ferruminacion.UST Faculty of Civil Law ___________________________ NOTE: Good faith is necessary in adjunction.precious stone will pertain use or perfection. Plumbatura-if the accessory and principal objects are of different materials Art. Test to determine principal in adjunction If you cannot determine the principal: a. as between two things the principal thing acted in bad faith. 466 will not apply incorporated. Art. (if it cannot be determimed from Art. the board. paper or parchment shall be deemed the accessory thing. 467) Q: What are the secondary factors to determine Principal 2. things. A: NOTE: The PRINCIPAL THINGS is that deemed to be that to 1. 1. That of greater merits – take into consideration all 3. 3. stone. 473. in case the thing united for the use. the owner of the without injury.state of co-ownership is created if have the right to choose between the former paying him mixture is created by chance. 470. the owner of the accessory thing shall have a right to choose between the former paying him its value or Q: What do you mean by confusio? that the thing belonging to him be separated. (378) Art. besides being obliged to pay indemnity for the Facultad de Derecho Civil 27 UNIVERSITY OF SANTO TOMAS . indemnity for damages.NOTES ON PROPERTY Kenneth & King Hizon (2A). and in all other respects. the value of the things mixed or confused. Proportionate ownership. even though the thing to which case the parties cannot stipulate on the price it has been incorporated may suffer some injury. and b. each owner indemnify the owner of the principal thing for damages shall have the right to the resulting thing proportionate he may have suffered. the owner of the former b. each owner shall acquire a right owner of the principal thing for the damages he may have proportional to the part belonging to him. Either the owner of principal or accessory made the incorporation with the knowledge of the other and  Negligence is not equal to BF raising no objection. delivery of a thing similar in kind and value and in all embellishment or perfection of the other. its value or the thing belonging to him be separated. Whenever the owner of the accessory thing has same or different kinds are mixed. Whenever the things united can be separated the owner of the material. By will of the parties. or if the mixture occurs made the incorporation in bad faith. (379a) 1. their respective owners may demand their material employed without his consent has a right to an separation. but in good faith. and negligent acts (culpa aquilana) c. even if it is necessary to destroy the principal either way  Mixture by negligence: co-ownership. he shall lose the thing belonging to him thus mixed or (380) confused. Owner of PRINICPAL in BF: owner of the accessory shall 3. is much more other respects precious than the principal thing.when the things mixed or lose the thing incorporated and have the obligation to confused are not separable without injury. to the VALUE of the thing he owns. a. and in the latter case the things are not incorporated and shall have the obligation to indemnify the separable without injury. If by the will of only one owner. damages for the there will be indemnity for damages. both of them shall be regarded acting in good faith. and in both cases. indemnity: Nevertheless. their A: It results when solid matters are mixed by agreement or by respective rights shall be determined as though both acted chance: in good faith. he shall lose the thing by chance. By agreement. (381) If the one who has acted in bad faith is the owner of the Accession by Mixture principal thing. Art. furthermore. Accordingly. bearing in mind suffered.parties may stipulate on the terms and Applicable Rules conditions and shall be governed by the laws on obligations and contracts. 472. even though for this purpose it be necessary to destroy the principal A: Confusio results when liquids belonging to different thing. faith. he may the provisions of the preceding article. If by the will of their owners two things of the Art. two things of the same or different kinds are mixed or Art.UST Faculty of Civil Law ___________________________ rd The present article contemplates a 3 person who is called as Art. to that employed. payments of the price as appraised by experts in may demand its separation. 471. a. the rights of the owners shall be determined by without his consent has a right to an indemnity. Q: What do you mean by commixtio? If either one of the owners has made the incorporation with the knowledge and without the objection of the other. there shall be owners got mixed by agreement or by chance. Whenever the owner of the material employed confused. If the one who caused the mixture or confusion acted in bad or else in the price thereof. Owner of ACCESSORY made the incorporation in BF shall 2. 469. demand that this consist in the delivery of a thing equal in kind and value. according to expert appraisal. He is liable for damages XPN: If accessory is much precious than the principal. or to A. (382) Q: What are the 2 kinds of mixtures? Rules applicable A: a. Owner of the principal acted in bad faith reasons. He loses the accessory for the material. 472-473) Q: What do you mean by Specificatio? Q: What do you mean by mixtures? A: It is the giving of a new form to a material belonging to A: It is the union of materials where the components lose another person through the application of labor or industry their identity. i.NOTES ON PROPERTY Kenneth & King Hizon (2A). Confusion – mixture of liquids owners determined by Provisions of preceding article (proportion to value/ co-ownership). He loses his rights to his materials GR. By one owner in good faith: apply rule (a) a. However. 2. One who in good faith employs the material of b. MIXTURES (ARTS. where the material used in transformed into another thing or Facultad de Derecho Civil 28 UNIVERSITY OF SANTO TOMAS . When is separation of things allowed? of the material shall have the right to appropriate the work to himself without paying anything to the maker. Accordingly. at his option.: The accessory follows the principal but the cost will 1. the owner of the accessory may demand the separation even if the principal may suffer injury Art. after first paying indemnity for the value of the work. One who cause confusion or mixture in BF = shall LOSE the thing belonging to him plus obligated to pay damages A: caused to the owner of the other thing a. Thus.R. Delivery of a thing equal in kind and value. To demand separation plus damages If the material is more precious than the transformed thing or is of more value. Adjunction in bad faith by the owner of the principal: another in whole or in part in order to make a thing of a different kind. but in GF = rights of the b. G. Accessory is more precious than the principal. c. By one owner in bad faith: i. or demand indemnity i. or depend on the good faitg or bad faith. the owner of the thing is the one who exerted the labor. To recover the value plus damages ii. the owner Q. Adjunction in Good faith by either owner: c. Commixtion – mixture of solids 1. and work in case the value of the latter. shall appropriate the thing thus transformed Option of owner of accessory as his own. Payment of its price including the sentimental value.: Accessory follows the principal ii. the labor or work is deemed as the principal while the material is the accessory. the owner of the material cannot appropriate the 2. Adjunction in bad faith by the owner of the accessory: appropriate the new thing to himself. indemnifying the owner of the material for its value. 1. How is indemnity made? Rules applicable A. By WILL of ONLY ONE OWNER. and Q: What are the rules applicable to determine ownership? 2. for artistic or scientific 3. Separation without injury. (383a) Q. is considerably more than that of the material. ii. its owner may.UST Faculty of Civil Law ___________________________ damages caused to the owner of the other thing with which his own was mixed. 474. By will of both owners or by accident: each owner Rules on Who is Entitled acquires an interest in portion to the value of his material b. Article 469 (WAB) demand of the latter that he indemnify him for the value of the material and the damages he may have suffered. He is liable for damages If in the making of the thing bad faith intervened. A: It is quasi in rem filed against a person or persons but judgment will apply to the property in dispute. Maker shall appropriate the new thing. It is the remedy for removal of cloud OM cannot appropriate the work is the value is more or doubt or uncertainty with respect to title to real property. To acquire result without indemnity material transformed is worth more than the new thing. a proceeding in equity. honor. CHAPTER 3 QUIETING OF TITLE (n) (2) When MAKER is in BF: Q: Discuss the remedy of queting title to land. than the value of material. To demand indemnity for materials plus damages The OM can appropriate the new thing subject to c.UST Faculty of Civil Law ___________________________ changed in identity. Accordingly. owner of the a. Q: What are the requisites for this remedy to apply? i. but must material has the option: indemnify the owner of the material for the value b. Preventive (action quia timet) – prevent a future cloud like love. Remedial (action to quiet title) – action may be brought Q: What do you mean by sentimental value? to remove a cloud or quiet title to real property or an interest therein. application of labor. Vessel not intended to A: remain at a fixed place) a. G. Q: What are the rules governing specification? XPN: Applies to personal property (ex. except vessels which are A: It is the transformation of another’s material by the treated as real properties. Acquire the work and indemnify the laborer except where the value of work is greater due to artistic or Rules applicable scientific reasons. OM can appropriate the work without paying for the labor or industry exerted A: It is an equitable remedy. Owner of principal (worker) in good faith. grapes into wine i. Owner of material in bad faith payment of the value of the work or demand indemnity for the material with damages. the b. OM may demand for indemnity of the materials plus purpose of which is the declaration of the invalidity of a claim damages on a title or the invalidity of an interest in property adverse to that of to the plaintiff. (n) 1. In the preceding articles. there is an anticipation of a doubt in the title/ SPECIFICATION (ARTS. ii. Accordingly.NOTES ON PROPERTY Kenneth & King Hizon (2A).R. respect. sentimental value shall be Classes of Quieting of Title duly appreciated. He must indemnify the owner of material Facultad de Derecho Civil 29 UNIVERSITY OF SANTO TOMAS . the nature of the object is retained even if transformed. The maker cannot appropriate the new thing if the i. Maker acquires the new thing A: ii. XPN: Material is more valuable than the resulting thing the owner of material has the option: Eg: Mango fruit into mango juice. Art. 475. affection.: Quieting of title applies only to real property. the cloud or doubt is A: It refers to the value placed by the owner on the property already there. is more than the actual value by reason of some sentiments 2. 474-475) Q: To what kind of property does this remedy apply? Q: What do you mean by specification? A: It applies to real property. Labor is the principal. or ii. Owner of principal (worker) in bad faith. or doubt from being cast upon the title to real property or an interest therein. (due to artistic or scientific importance of work) Q: Discuss the nature of the action. To demand indemnity for the material (1) When MAKER (principal) is in GF: b. The material becomes a different kind. a. if he is not in possession. a. determines the nature of the action. c. To questions involving interpretation of documents. claiming casting cloud on his title must be shown to be in fact lawful ownership and seeking to remove a cloud. b. To deed by strangers to the title UNLESS purporting form but which is in fact unfounded. 4 corners of the document (extrinsic evidence) which may declare it null and void. lis pendens on a title. A: It refers to semblance of title which appears in some legal 4. Equitable title – person has the beneficial ownership There must appear valid or effective. liens. To mere written or oral assertions of claims. action is imprescriptible since possession is a continuing right as is the right to defend such possession. plaintiff need not be in possession of the property – if plaintiff is in possession of the A: It would warrant the dismissal of the case. waiver. 2. it will be invalid or inoperative despite its prima facie appearance considered as an action for quieting of title as the allegations. ineffective. the prescriptive period is (4) Must be valid on its face. (1) ordinary prescriptive period of 10years. Legal or equitable title to or interest in the real property NOTE: Where the TCT is null and void. Q: Under what cases does this remedy not apply? A: A: LEGAL TITLE EQUITABLE TITLE Refers to full or naked Refers to beneficial interest 1. Cloud on title to real property or any interest therein.NOTES ON PROPERTY Kenneth & King Hizon (2A). An ejectment is a quieting process but not one for determining ownership: Facultad de Derecho Civil 30 UNIVERSITY OF SANTO TOMAS . and However. Any proceedings like extrajudicial partition. encumbrance – attachment. to convey the property of the plaintiff. and the document itself.UST Faculty of Civil Law ___________________________ (1) Plaintiff has a title to a real property or interest: NOTE: Action to quiet title does not apply to boundary disputes since in such cases both parties have their own titles. need evidence to prove its as follows: invalidity. property. deed of conveyance. claim. voidable or unenforceable and which E. (2) Documents owner of real property in possession has a continuing right to (3) There is nothing wrong in the document on its face/ it is invoke a court of equity to remove a cloud that is a valid. but in reality there may be evidence outside of the continuing menace to his title. there can be no cloud subject of the action. Where the validity of the instrument involves pure question of law A: Q: What is the test to determine if the action to quiet title is a. proper? assignment. Q: What is the effect of the absence of such title or interest? In an action for quieting of title. b. prejudicial to plaintiff’s title. claim. may be prejudicial to the title of the owner or possessor. The right of an heir in succession. Legal title – owner is the registered owner of the The grounds or sources enumerated are exclusive. and Even if pleading filed is for “Annulment of Title and/or 3. To instruments invalid on their face. REQUISITES (2) extraordinary prescriptive period of 30years 1. over the title. ownership registered. adverse claim. property. To boundary disputes. A: The test is the presence of any evidence which is outside of inscription. If it is being asserted that the instrument or entry in plaintiff’s favor is not what it purports Q: What is a cloud on Title? to be 3. mortgage. Instrument-contract. encumbrance or proceeding claimed to be Reconveyance” but plaintiff is in actual possession. of validity or legal efficacy not the caption of the pleading.g. If made in a legal proceeding another b. 5. and Q: What are the sources of cloud in one’s title? 6. in the property and the legal 2. needed to prove invalidity and which must be in truth and in fact invalid. Deed. extraneous evidence to the property (beneficiary owner). Q: Distinguish between legal title and equitable title. Records. EXCEPT: title of which belongs to a. Laches. 478. Facultad de Derecho Civil 31 UNIVERSITY OF SANTO TOMAS . If the plaintiff ownership shall be governed by the provisions of this Title. . 480. 483. co- Thus. wins the case. 481. 479. the administrative authorities may order the demolition of the An action may also be brought to prevent a cloud from structure at the expense of the owner. If a building. In default of contracts. an action may be brought to remove such cloud or to order to prevent it from falling. the one in possession. 1. if he lost.UST Faculty of Civil Law ___________________________ 4. column. prescription Plaintiff in possession: File an action to remove cloud. the owner shall be voidable. Q: What is co-ownership? Art. If the proprietor does not comply with this obligation. There is co-ownership whenever the ownership of benefit. ineffective. (389a) Art. but cannot file for ejectment because he is already in possession Art.CO-OWNERSHIP benefits he may have received from the latter. Art. Q: Under what cases will the general law apply? Q: What are the requisites of co-ownership? A: Accoridng to Anglo-American Law: A: 1. 477. persons have in a spiritual part of a thing. there must be restoration of benefits. 482. Art. or any other or effective but is in truth and in fact invalid. or take measures to being cast upon title to real property or any interest therein. an undivided thing or right belongs to different persons. encumbrance or proceeding which is apparently valid Art. record. He need not be in possession of said property. Res judicata more persons. or of special provisions. with this Code. It is the ownership of 2 or more persons over a thing or right Q: In case of conflict. which law shall prevail? which had not been physically divided between or by and among them. he is obliged to restor to the defendants all (392) benefits he received from the later. action to recover possession – incidental to action to quiet title CHAPTER 4 Art. (390a) other obligation has been extinguished or has terminated. by reason of any instrument. or unenforceable. 484. 476. or reimburse him for expenses that may have redounded to the plaintiff's Art. wall.at least 2 or 3. insure public safety. Yet.NOTES ON PROPERTY Kenneth & King Hizon (2A). and may be prejudicial to said obliged to demolish it or to execute the necessary work in title. not materially or physically divided. plurality of subjects (different owners). Estoppel. The plaintiff must return to the defendant all Title III. or to travelers over a public or private road. The procedure for the quieting of title or the removal of a cloud therefrom shall be governed by such Plaintiff not in possession: Remove cloud plus ejectment for rules of court as the Supreme Court shall promulgated. the owner of the tree shall be obliged to fell and remove it. The principles of the general law on the quieting of A: It is the state where an undivided thing or right belongs to title are hereby adopted insofar as they are not in conflict 2 or more persons. 2. The plaintiff must have legal or equitable title to. there is no obligation to restore. it shall be done at his expense by order of the remove a cloud therefrom when the contract. construction is in danger of falling. and should he Art. Whenever a large tree threatens to fall in such a or interest in the real property which is the subject matter way as to cause damage to the land or tenement of another of the action. quiet the title. NOTE: He who comes to court for equity must do equity. claim. instrument or administrative authorities. A: The Civil Code will prevail over the general law. Whenever there is a cloud on title to real property RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING or any interest therein. only in the absence of a provision in the CC will the general law be It is the right of common dominion which two or more applied. or has been barred by extinctive prescription. There may also be an action to quiet title or not do so. recognition of the ideal shares of the co-owners. by special provision of law. 1. it was held that when the lessee died.e. Each co-owner is owner of Each joint owner owns the his own ideal share. discovery of a hidden Q: What are the rules to govern co-ownership? treasure or by mixture.g. right of redemption (Tenancy in common) (Joint tenancy) cannot be invoked. it orderliness the law specifies the rules to govern in the impairs legitimes. 88 or 90 of the Family Code). not to divide a thing for a period not exceeding 10 years and Art. up to one another. It is explicit from the provision of Art. Testamentary disposition or donation inter vivos.g.UST Faculty of Civil Law ___________________________ 2. other joint owners by accretion.NOTES ON PROPERTY Kenneth & King Hizon (2A). paragraph 3). dispose of his share. by the provisions of the civil code. Art. the proportionate share of the owners.easement of party walls (Art. because when a joint tenant dies. Created by contract. A: benefit the others for the prescription will not run purpose of prescription. etc. by contracts.g. will. confusion. 2. 668) or Co-ownership Partnership (Ordinary) absolute community of property between spouses (Art. e. Article 147 of the A: Family Code.e. GR: Co-owners cannot claim a definite portion. his share goes to the possidentis) to his heirs. JOINT TENANCY The exercise of the right of legal redemption presupposes the existence of co-ownership at the time the conveyance is Q: Distinguish between co-ownership and joint tenancy. Chance or fortuitous event-e. observance of mutual respect between co-owners CO-OWNERSHIP v. 1. 5. Each co-owner may dispose Joint owner must obtain the of his undivided share consent of all the rest to XPN: Transferees of an undivided portion of the land allowed WITHOUT the other co. where the testator or donor prohibits partition Prurpose: Common/ Purpose: Profit Collective enjoyment of the Facultad de Derecho Civil 32 UNIVERSITY OF SANTO TOMAS . a. this does not owner benefits the others. Ownership over the ideal share – full ownership over the Thus. Property already partitioned A: judicially or extrajudicially where portion belonging to co. his share following manner: does not go to his estate but to other surviving tenants. Occupancy. made by the co-owner and when it is demanded by the other co-owner or co-owners. Q: What are the different sources of co-ownership? In case of a minor who is a The legal diability of one joint co-owner. 658 of NCC with respect to easement Q: Distinguish beteween co-ownership and partnership. and Co-ownership is not limited to corporeal things c. distinct from the co-owners 4. 484 that co-ownership Dual Nature of Co-ownership can exist in transmissible rights. 6. Contract-voluntary agreement of the parties. Co-ownership Joint ownership owners has been identified and localized. Upon the death of a joint possessor is in a better condition or right (potior est conditio owner. commixtion. property before partition (especially intestate. Succession as in the case of heirs of undivided 3. of party wall. continues to run against. Co-owners exercise joint ownership over the whole – in co-ownership. disturbed the same for a period too long to be ignored – Upon the death of a co. Art. No legal/juridical personality With legal personality 438(2) of the NCC with respect to hidden treasure. such will be a betrayal of trust. whole thing. For NOTE: Joint tenancy is not allowed in the Philippines. 492(2) of the NCC with respect to the agreement Them. it against them. Can exist without a Requires the existence of contract contracts 3. his leasehold ideal share although portion is unidentified rights descended upon his children who now own the rights 2. his ideal share goes owner. A: Co-ownership may arise from different causes.g. b. Law. Created by contract only e. heirs will own property until it is divided). unity of objects (material indivision)-thing has not of the property for a certain period of time (Article yet been divided materially and co-owners are tied 194.g. a co-owner to occupy a definite portion and has not owners consent. when 2 persons catch a wild animal or fish in the open sea or gather forest products. and belong to different owners. 3. 4. Presumption is what portions are equal unless Q: Distinguish between co-ownership and conjugal contrary is proved. extinguished? EXC: Art. agreement to No term limit set by law. A: A: The law presumes that the portions belonging to co- Co-ownership Conjugal Partnership of owners are equal unless the contrary is proved. incapacity of a co-owner incapacity of a partner A co-owner can dispose of A partner cannot be The portions belonging to the co-owners in the co- his shgare without the substituted without the ownership shall be presumed equal.UST Faculty of Civil Law ___________________________ thing owned in common 1. Any stipulation in a contract to the contrary shall Not dissolved by the death. took charge of the care and maintenance of the Family and owner who repudiates the co-ownership. interest of parties unless a different percentage has been agreed upon Q: State the execpttion to Art. NOTE: Facultad de Derecho Civil 33 UNIVERSITY OF SANTO TOMAS . 485. The share of the co-owners. Civil Code Family Code A: GR: When contribnutions can be established. participation in the is void with respect to the Reason: it will eventually benefits and charges arising from the co-ownership shall exces years be extinguished – by death be proportional to their respective INTERESTS. (393a) owners Profits of a co-owner depend Profits may be stipulated Rights of each co-owner as to the thimg owned in common on his proportinate share upon (e. Their shares Q: What are the means by which co-ownership is shal be in proportion to their contributions. Judicial or extra-judicial partition. To share in the benefits in proportion to his interest. shall be proportional to their respective representation by parties interests. Contrary stipulation is void as the same is contrary to the essence of co-ownership. profit-sharing agreements) 1. Co-owners have different shares. if she 2. 485. Loss or destruction of property co-owned. b.g. Consolidation or merger in one co-owner. Co-owner does not represent Partner usually represnets provided the charges are borne in the same proportion. household. consent of the others proved. Expropriation. Termination of the periodagreed upon by the co-owners. the contrary is proved exist for more than 10 years 2. NOTE: There is no co-ownership when rge house and lot 5. the co- Share is proportionate to Generally. Dissolved by death or be void. Acquisitive prescription in favor of a third person or a co. 147 of the FC: Property regimes of unions wothout A: mariages—A paretner who didi not actually contribute financially in the acquisition of a property shall be deemd to 1. 6. only a man and woman A: If the property is increased through accretion.NOTES ON PROPERTY Kenneth & King Hizon (2A). marriage More than 2 persons can Only 2 parties Q: What is the effect of accretion on the property under co- establish co-ownership onwership? Sex of parties is immaterial Sex is material. in the benefits as well No mutual representation There is mutual as in the charges. unless the contrary is consent of the other co. a share of 50/50 owners wuill share proportionately. the co-ownership the partnrships and binds the partnership a. have constributed jointly and shall receive 50/50 share. of one of the partners or by agreement of the partners Art. partnership of gains? Q: State the presumption on the extent of a co-ownership. Gains Ordinary contractual Special partnership which If they have different shares then their participation in the relationship arises from marriage and benefits and charges shall be propotional to their respective agreed upon only before interest. Portions belonging to the co-ownership are equal unless In general. Purpose stipulated in the agreement. Reason: law prohibits a co-owner from being prejudiced as to his interest. shares in the net profit. He may insist the partition of the property Q: What are the limitations to this right? anytime. (n) Q: What is the exception to Art. A: Yes. 5 2. and to require a co-owner to pay rent after the co-owners by their 6. even as unwilling plaintiffs. 2006) purpose of the co-ownership may be changed by agreement. Facultad de Derecho Civil 34 UNIVERSITY OF SANTO TOMAS . express or implied. Co-ownership is terminated if there is judicial or extrajudicial partition of the property. Q. any act purpose for which it is intended and in such a way as not to tantamount to partition (identifying their share and injure the interest of the co-ownership or prevent the other constructed their respective houses) automatically co-owners from using it according to their rights. (Lopez v. and in default. 2. provided he does so in accordance with the In a property co-owned by the compulsory heirs. GR. Without preventing the use of the other co-owners. in default. they must bear the consequences (it is unjust 5. Any one of the co-owners may bring an action in ejectment. express or another co-owner since the latter has a right to possess. It is without injury or prejudice to the interest of the Phil. No co-owner ought to be compelled to stay in a co-ownership indefinitely. The purpose for it was ordinarily accepted according intended (may be altered by agreement. express or to its nature. (Patricio v. Each co-owner may use the thing owned in common. NOTE: Co-owners can either exercise an equal right to live in 3. owner who was not given a day in court. Any of the co-owners can demand partition at any property? given time. and b. Sps. and there is no lease A: agreement.UST Faculty of Civil Law ___________________________ 2. Is there such thing as perpetual co-ownership? Q: Does each owner have the right to use the entire A. the other co-owners cannot demand the payment of rent 1. it is deemd instituted On the other hand. Presumption that the thing is intended for that use for which it is ordinarily adapted according to its a. When one co-owner brings an action. No. Accion reinvindicatoria. cannot retain it for his use without paying the proper rent. Arabat. Accion publiciana. the house or agree or lease it – if they fail to exercise any of 4. To use the entire thing according to the purpose 2. for the benefit of all. It is without injuryor prejudice to the interest of the co. implied) provided that: 3. 486? Q: What are the circumstances covered by ejectment? A: If one co-owner alone occupies the entire house without opposition from the other co-owners. (Cruz v. Such action to demand for partition does not prescribe. Illustre. 456 SCRA 165) Art. (Avila v. Accoridng to the purpose intended (may be altered share of interest but has no right to sell a divided or definite by agreement. The terminates the co-ownership. in case the co-owners agreed to lease the property – co-owner 3. Without preventing the use of other co-owners. silence have allowed him to use the property). only effect of the action will be to obtain recognition of the co-ownership.NOTES ON PROPERTY Kenneth & King Hizon (2A). Dario III. Unlawful detainer. these options. 170829. ownership. 2006) A: The thing owned in common should be used only: A co-owner has a right to freely sell or dispose his undivided 1. express or implied) part of a real estate owned in common. CA. adverse judgment cannot be binding upon a co- Q: State the rule to determine the purpose. 487. property retained by some of the co. 568) co-ownership. A: These actions cannot be brought by one co-owner against 1. the implied. Each co-owner may bring an action in ejectment. Accordingly. Forcible entry. (394a) Art. No. nature. Replevin. but if case does not proseper. Queting of title. and 3. 486. the other owners for the exploitation of an industry – other co-owners co-owners are not bound by the judgment unless they were become co-participants in the accessions of the property and also served with summons. the court cannot. the “renunication” cannot be made without his consent for it is in effect a novation by subsitution. but he must. No such waiver shall be made if it is prejudicial to of the expenses. to contribute to the expenses incurred for the purpose of preserving the property owned in common (Special form of XPN: If the waiver or renunciation is prejudicial to the co. if practicable. Renunciation GR: A co-owner has the option not to contribute by renouncing his undivided interest equal to the amount of An option that belongs to a co-owner who may be compelled contribution. Each co-owner shall have a right to compel the requirement? other co-owners to contribute to the expenses of preservation of the thing or right owned in common and to A: Failure does not deprive the co-owner of his right to the taxes. Expenses to improve or embellish the thing shall be decided upon by a XPN: If action is for the benefit of the plaintiff alone. other co-owners for any and all expenses he incurred for the purpose of preserving the thing or right owned in common. Facultad de Derecho Civil 35 UNIVERSITY OF SANTO TOMAS . but he must. done due to the opposition and the property is ruined or owners. Q: What if the co-owner failed to comply with the notice Art. Q: May a co-owner be compelled to renounce? Renuniciation is in effect a dacion en pago (dation in payment) since there is a change of the object of the A: A Co-owner cannot be compelled to renounce – if co- obligation (sum of money to interest in the co-ownership). the necessity of such repairs. EJECTMENT GR: Any co-owner may institute action (in Ejectment) . file an action for collection of sum of money. (395a) Q: Why are useful expenses not subject to reimbursement? 4. the co-ownership. the co-owner has the burden of interest as may be equivalent to his share of the expenses proving the necessity of the repairs and the reasonableness and taxes.UST Faculty of Civil Law ___________________________ If the creditor has not yet been paid. the opposition of other co-owners for making exclusive possession and asserts exclusive ownership of the necessary repairs does not deprive the co-owner who made property . Remedy of a co-owner who does not want to contribute includes suit of forcible entry (detentacion) or unlawful detainer (desahuico) and all kinds of actions for the recovery Art. Useful expenses and expenses for luxury are not covered. first notify the others if diminished value. 489.NOTES ON PROPERTY Kenneth & King Hizon (2A). he is taking the risk of repairing without reimbursing. who majority as determined in Article 492. Any one of the latter may exempt himself from recover the proportionate shares of the other co-owners in this obligation by renouncing so much of his undivided the expenses. the consent of the other co-owners is necessary. ownership. Q: What is the rule in case of opposition to repairs? NOTE:This article refers only to necessary expenses. payment – dation in payment). first notify actions) his co-owners of the necessity for such repairs. oppositors could be liable for damages. Repairs for preservation may be made at the will of of possession (including accion publiciana and reinvidicatory one of the co-owners. 488. Action is available even against a co-owner who takes Accordingly. other co-owners (indispensable parties) must be Each co-owner has the right to demand contribution from impleaded. to taxes. is still necessary to effect physical division). if practicable. A: If there is opposition and he still proceeded. owner refuses to pay his share of expenses. the remedy is to Thus. To compel other co=owners to contribute to expenses for preservation of the thing or right in common and as A: It is an act of alteration. Yet. if no repairs are Acts of preservation may be made at the will of one of the co. in the action filed by a co-owner the advances from demanding contributions from the other against another co-owner proceed with the actual co-owners as repairs for preservation may be made at the will partitioning of the co-owned property (extra-judicial partition of only one of the co-owners. (n) claims to be the sole owner and entitled to the possession thereof. however. the roof and the other things A: It is an interest in real property consisting of a separate used in common. front door. shall be preserved at the expense of all the interest in a unit in a residential. shall be maintained at Q: What are improvements? the expense of all owners pro rata. indirectly. roof and other things used in common shall be preserved at the expense of all the A: It must be express renunciation. Rules governing necessary expenses A co-owner who does not want to contribute may EXEMPT 1. common. They are designed d. 3. To oppose to any act of alteration. Improvements b. the floor of the entrance. shall be maintained Q: What are common areas? at the expense of all the owners pro rata. Art. and preservation and taxes. make alterations in the thing owned in renunciation. Agreement of parties. (397a) Taxes 5. with separately granted or held or reserved. c. reason: no need for him to use the stairs) To improve means to add something new and good to the Stairs from the first to second story – expense of all thing which enhances its value. 490. 491. and so on successively. In the absence of agreement – Art490: Q: What should be the form of necessary? a. It is no applicable Expenses to improve or relinquish the thing shall be decided to condominium project which is governed by RA 4276. front door. None of the co-owners shall. Art490 applies to a house consisting of several stories and different stories belong to different owners. his story. and value or the convenience of the property. NCC. if the withholding of the consent by A: Art488 prohibits the exercise of the option of renunciation one or more of the co-owners is clearly prejudicial to the if it is prejudicial to the interest of the co-ownership. as may be the equivalent to his share of the expenses for 2. even though benefits for all would result therefrom.UST Faculty of Civil Law ___________________________ Q: Is the consent of a co-owner necessary in case of the exception of the owner of the ground floor. common interest. the courts may afford adequate relief. owners in proportion to the value of the story belonging to each.NOTES ON PROPERTY Kenneth & King Hizon (2A). except the owner of the ground floor and the A: Consent of co-owner who made advances is not required owner of the first story. if the titles of ownership do not specify the terms under which they should contribute to the Condominium Act necessary expenses and there exists no agreement on the subject. Whenever the different stories of a house belong to different owners. without the consent Q: State the limitation on the exercise of the option of of the others. (396) when a co-owner opts to renounce. Art. (3) The stairs from the entrance to the first story shall be A: They refer to the entire project excepting all units maintained at the expense of all the owners pro rata. industrial or commercial owners in proportion to the value of the story belonging to building and an undivided interest in common directly or each. the following rules shall be observed: Q: What is a condominium? (1) The main and party walls. upon by the majority co-owner representing the controlling interest in the object of the co-ownership. However. GR: Not a necessary expense XPN: Necessary expense under Art488. Main and party walls. except the owner of ground floor and first floor. Floor of entrance. Stairs from the entrance to the first story – all for the comfort of the occupants/ owners pro rata (except owner of ground floor. in the land on which it is located and in other (2) Each owner shall bear the cost of maintaining the floor of common areas of the building. common yard and sanitary works common to all. the stairs renunciation? from the first to the second story shall be preserved at the expense of all. common yard and sanitary works common to all. Each owner shall bear the cost of maintaining the A: They are valuable additions or betterment to enhance the floor of his story. Facultad de Derecho Civil 36 UNIVERSITY OF SANTO TOMAS . Manner of contribution specified in the title of himself by RENOUNCING SO MUCH of his undivided interest ownership. 1. For the administration and better enjoyment of the association (pays association dues) thing owned in common. buildings and such accessories as may be appended thereto. For reconstruction of any portion or portions of any Q: What is a unit? damage to or destruction of the project.NOTES ON PROPERTY Kenneth & King Hizon (2A). 2. including the appointment of an administrator. (398) Owner of project is required by law. 2. utility. 1. For payment of taxes and special assessments which Act by virtue of which a co. b. Provisions for maintenance.UST Faculty of Civil Law ___________________________ 5. condominium owners against loss by fire. the Rules on expenses on common areas preceding provision shall apply only to the part owned in common. Acts of alteration. and insurable risks and for bonding of the members of 3. any management body. in opposition to the embellishment of the thing areas and for the discharge of any encumbrance express agreement. workmen’s compensation and other not own. and the remainder is owned in common. Land and other common areas are held by the condominium corporation – owners of the Should there be no majority. gardening and Q: Distinguish between acts of alteration and acts of other services benefitting the common areas. Land and common areas are held by owners of the separate units as co-owners – co-owners There shall be no majority unless the resolution is approved with respect to the undivided interest in the by the co-owners who represent the controlling interest in land and common areas the object of the co-ownership. shall order such measures as it may deem or the shareholding in the common areas is proper. e. inseparable from the unit to which it is only an appurtenant) Whenever a part of the thing belongs exclusively to one of the co-owners. a. including one or more rooms the Registry of Deeds of the city or province where such or spaces located in one or more floors in a building or condominium is located. or in default thereof. at the instance of an (reason: undivided interest in the common areas interested party. Improvement or would be a lien upon the entire project or common owner. For maintenance of insurance policies insuring mortgage and foreclosure.g. Disposition as no one may dispose a thing which he does liability. 3. if there is owned in common for the levied against the entire project or the common areas. or should the resolution of the individual units are automatically considered majority be seriously prejudicial to those interested in the members or shareholders of the corporation property owned in common. casualty. to purpose of better enjoyment the tacit agreement of all the (IME): Facultad de Derecho Civil 37 UNIVERSITY OF SANTO TOMAS . and any. Encumbrance as co-owners will be prejudiced. A: It is part of condominium project intended for any type of Notice of assessment of condominium is to be registered with independent use or ownership. for the administration? employment of personnel necessary for the operation of the building and legal. the resolutions of the majority of the co-owners shall be binding. supplies and the like Acts of Alteration Acts of Administration needed by the common areas. 492. 4. Condominium unit is owned separately and individually by the unit owner 2. Lien is superior to all other liens registered subsequent to the Nature of ownership in condominium projects registration of notice of assessment EXCEPT real property tax lien. accounting and A: other professional and technical services. Land and common areas – co-owned Reason: Unit owner will become part of the Art. prior to conveyance of any condominium to register a declaration of restrictions Acts requiring Unanimous Consent relating to such project (restrictions is considered a lien upon each condominium in the project and shall inure to and bind Q: What are the acts requiring unanimous consent? all condominium owners in the project). the court. A: Restrictions may be: 1. For purchase of materials. Can be exercised by the co- owners themselves. Paying taxes to government. But the effect of the alienation dedicated by agreement or by its nature. form. Enjoyment the prejudice of the other co-owners. Each co-owner shall have the full ownership of his Acts of Majority Prejudicial to the Co-ownership part and of the fruits and benefits pertaining thereto. Undo what has been 1. Majority consent of the co.UST Faculty of Civil Law ___________________________ co-owners and violating their . assign or mortgage it. modifications for enjoyment? 3. Q: What is the test whether the nature of the thing requires 2. required. Filing a representative suit for the co-owners.NOTES ON PROPERTY Kenneth & King Hizon (2A). Q: What if there is no majority? Relates to the substance or Do not affect the substance essence of the thing itself. form of the thing. where the nature of the thing requires changes in its exploitation. paying workers. with respect to the co-owners. except when the common property or of the use to which it has been personal rights are involved. of all co. controlling interest in the owners? owner required even though object of the co-ownership alteration will benefit all co. Resolution goes beyond the limit of mere administration. 493. A: Alteration is an act of ownership and not mere act of owner. the court shall order measures as it may deem proper to solve the controversy. changes the thing from . includes any act of ownership. express or tacit. or other contracts will. loans.. Must be exercised by the co. or the mortgage. Pay for losses and damages the community 2. refers to the substance or A: The resolution of the co-owners representing the controlling interest shall be binding upon all co-owners. affect its substance. exposing the things to serious danger to that state in which the others . it is an act of 5. and he may therefore alienate. or purpose. Acts made without the Q: What is the liability of a co-owner for alteration made consent of all co-owners are Reason for majority consent: without the majority consent? illegal and invalid. NCC). Leasing a parcel of land for not more than 1 year and need not register (if registred it is an act of ownership). previous to the act or after owners who represents the Q: What is the reason foe requiring the consent of other co- its commission. No alienation A: The co-owner who makes the alteration without the Remedy: express or implied consent of all co-owners shall: 1. Be obliged to demolish the improvements done. and alteration have the respectability. alteration. and 4. Majority authorizes lease. shall be 2. Management without security. Lose what he has spent. Erring co-owner is liable property or other co-owners may have suffered. A: If no majority. Majority refuses to dismiss an administrator who is guilty believe it should remain or It refers to the enjoyment. 1. Borrowing money for preservation of property. Alteration is not limited to physical or material changes but Consent. Improvement 3. of fraud or negligence in his management or he does not withdraws it from the use to exploitation. aptitude and solvency required which they wish it to be of the thing which do not of persons holding such position. administration. it is an act of administration Art. 3. 4. intended. owners through others like Illustration of acts of administration an administrator. Facultad de Derecho Civil 38 UNIVERSITY OF SANTO TOMAS . for any loss or damage which the co-ownership Q: What if there is disagreement or conflict on matters of may have suffered administration and better enjoyment? More permanent result – Transitory in character. and even 1. or form of the thing. Resolution calls for substantial change or alteration of substitute another person in its enjoyment. done at the expense of 2. and A: If there is no need for modification. the erring co-owner and (Art1168. 6. Each co-owner may demand at any time the Facultad de Derecho Civil 39 UNIVERSITY OF SANTO TOMAS . fruits & benefits. assign.NOTES ON PROPERTY Kenneth & King Hizon (2A). 5. The absolute community is a form of co- ownership but Art.UST Faculty of Civil Law ___________________________ limited to the portion which may be alloted to him in the property without the consent of the other prior to the division upon the termination of the co-ownership. Right of redemption must be exercised within 30days from knowledge. (399) termination of cohabitation. and A: The transferee steps into the shoes of the transferor as co. Share can be attached even if it has not been by reducing the number of participants until the community concretely determined. 494. FC – common law spouses are prohibited from Art. Vendee must be reimbursed for the price of the sale owner. and 2. not a right of pre-emption to purchase the shares of his co- Accordingly. price of alienation is grossly excessive. the remedy is an action for the partition of the owners. A co-owner of a thing may exercise the RIGHT OF A: REDEMPTION in case the shares of all the other co- rd owners or any of them are sold to a 3 person. Buyer in good faith – a person dealing registered land is not required to go behind the register to determine the PARTITION condition of the property. The Conjugal Partnership of Gains under in the common property. he May alienate. 2. he can alienate his share to the FC is governed suppletorily only by the rules on third persons even without the consent of other co-owners. XPNs: NOTE: Written notice is not required when there is actual notice 1. To protect against acts of majority which are prejudicial Q: What is the effect of sale of conjugal property without to the minority the consent of the other spouse? A co-owner has absolute ownership over his undivided share A: It shall be void. property under Rule 69 of the Revised Rules of Court. One of the co-owners sold his right to a stranger (not redemption shall pay only a reasonable one a co-owner). the interest of each thus.owner does not lose his part ownership of a co-owned property where his share is mortgaged by another co-owner Legal Redemption – may be exercised by two or more co- without former’s knowledge and consent: owners in proportion to the share they respectively have. A co-owner has the right of redemption quod non habet – no one can give what he does not have). and 3. liquidation of the absolute community. The reason for allowing redemption is to minimize co-ownership 1. prior to the A co-owner has full ownership of his share. Not allowed to sell a determinate part because his right is only a quota or an ideal portion within any Q: What are the requisites for legal redemption? physical adjudication. Thus. 493 does not apply. share? 4. partnership. if 1. Sale is before the partition of the co-owned Q: What is the effect of alienation or mortgage of undivided property. except when neither legal nor equitable estate and does not ripen into title personal rights are involved (undivided interest). Mortgage of a common property Legal Redemption A co. Art147. Right is granted not only to the co-owner but also to all those GR: Alienation of entire co-owned property – sale will affect who subsequently acquires their respective shares while the the portion owned by the co-owner only (reason: nemo dat community subsists. until it appears that there are assets in the community as a result of the liquidation and settlement. 3. may validly lease his undivided interest to a third party independently of other co-owners Q: What is the effect of sale of community property without the consent of the other spouse? Ideal share of co-owner in common not in whole property A: It is void. is done away with. or mortgage. the 2. a mere expectancy which constitute another person in enjoyment of his share. No co-owner shall be obliged to remain in the co- encumbering or disposing of their share in the co-owned ownership. There is co-ownership. substitute spouse is inchoate. XPN: Temporary renunciation is allowed. not more than 10 years. Facultad de Derecho Civil 40 UNIVERSITY OF SANTO TOMAS . 2. or any other real prescription begins to run from the time of repudiation. renunciation of their right to seek partition. shall be valid. a deed of partition and on the strength therof obtained the cancellation of title in the name of their Nevertheless. Personal rights pertaining to third persons against Q: Cite examples of acts of repudiation. Benefits and expenses and each co-owner shall pay for 1. Whether plaintiff is a co-owner of the property 5. Co-ownership is terminated. which causes conflicts in management and possession among co-owners. When the partition would render the thing unserviceable 2. When the issue of ownership had not been definitely A: resolved and it is premature to effect partition. 1. Cannot prejudice the rights of third persons who shall XPN: If the co-owner repudiates co-ownership. To ask partition Except: A co-owner can acquire by prescription if he had repudiated the co-ownership and lay complete ownership No co-owner shall be obliged to remain in the co-ownership over the property adverse to the other co-owner/s with full as the law discourages long and perpetual co-ownership. a certain period of time. 7. No prescription shall run in favor of a co-owner or co-heir GR: A co-owner cannot acquire exclusive ownership over a against his co-owners or co-heirs so long as he expressly or common property thru prescription as a co-owner stands as a impliedly recognizes the co-ownership. rights belonging to them before the division was made 3. retain the rights of mortgage. not exceeding ten years. When there is a stipulation against it (not more than 10 and years). Co-owners can stipulate that they will not divide a common property but will just keep on dividing the income or fruits = GR: A co-owner has the right to ask for partition at anytime. 3. This term may be extended by a new agreement.UST Faculty of Civil Law ___________________________ partition of the thing owned in common. an agreement to keep the thing undivided for predecesor and the issuance of new titles. knowledge of the latter. alleged co-owners. How property is to be divided between the plaintiff or the thing is essentially indivisible. lasted 2. and defendant Action to request partition will not prescribe as long as the Legal Effects of Partition co-ownership exists. In such case. 1. When the defendants. ownership shall also remain in force 4. the even during the entire period that the co-ownership posession of co-owner is not adverse to the other co-owners.NOTES ON PROPERTY Kenneth & King Hizon (2A). Neither shall there be any partition when it is prohibited by It is the right to demand at anytime the partition or law. When the partition is generally prohibited by law. servitude. those to whom it belongs in parts. Accoridngly. Mutual accounting shall be rendered by the co-owners A: with regard to: a. Q: What is partition? A donor or testator may prohibit partition for a period A: It is the segregation or division of a property in common to which shall not exceed twenty years. 4. transferor (donor/testator) (but not more than 20 years). segregation of his share in the thing owned in common. (400a) trustee for other co-owners. Co-owners are the absolute GR: No prescription shall run in favor of a co-owner or co-heir and exclusive owners of the share allotted to him – against his co-owners or co-heirs so long as he expressly or deemed in exclusive possession of the portion allotted impliedly recognizes the co-ownership. When the condition of division is imposes by the If indefinite period= invalid. and sought to be partitioned 6. Filing of an action to quiet title or recovery of damages cause by reason of his negligence or fraud ownership. executed is concerned. insofar as his share 2. 1. extension can be made provided it does not exceed 10 years. When legal nature of the community prevents partition Q: What are the principal issues in an action for partition? (party wall). 497. But they cannot impugn any partition already executed. expense under Art488). NOTE: They can continue to pursue partition because it He is considered as a trustee of the property and will be pertains only to the use because it not render it entitled to collect reimbursement. Positive acts of repudiation have been made known to Q: What are the grounds of extinguishing co-ownership? the other co-owners – prescription runs only against co- owners when such unequivocal notice has been given A: 3. redemption is a necessary unserviceable. partition because they own part of the interests of the co-owner who made the assignment or alienation Q: What are the requisites for repudiation? 2. [1] Facultad de Derecho Civil 41 UNIVERSITY OF SANTO TOMAS . Reimburse each other as to the income and fruits Co-owner executed a deed of partition and subsequently received and for useful and necessary expenses made obtained the cancellation of the title and issuance of a c. the assignee will have the right because 1. owned in common: a. Merger/ consolidation of ownership to 1 person as unserviceable for the use for which it is intended. no prescription so long as co-owner expressly or maintain its validity. Partition shall be the extinction of their co-ownership. Notwithstanding the provisions of the preceding 2. A refuse? co-heir or co-owner who redeems the whole property benefits the co-owners does not become the owner therof. Art. so frauds does not apply. co-owner can A: Redemption is not a mode of terminating co-ownership. 498. 495. Evidence is clear and convincing 1. the thing owned in common.NOTES ON PROPERTY Kenneth & King Hizon (2A). when to do so would render it 3. unless GR: prescription does not lie (reason: co-ownership is a form there has been fraud. if assignor has fully assigned all his interest in the community property. without prejudice to the right of the debtor or assignor to attribute. Expropriation by competent authority. governed by the Rules of Court insofar as they are consistent with this Code. or in case it was made of trust and every co-owner is a trustee for the others – notwithstanding a formal opposition presented to prevent relationship of co-owners is fiduciary in character and it. through their omission. verbal/oral. A: Co-owners cannot demand a physical division of the thing 5. creditors are allowed because they take part in the XPN: When co-ownership repudiated. (401a) 4. Destruction of property or total loss of the thing owned in common-co-ownership is a state of fact Q: When is physical division not allowed? which exists so long as the property remains physically undivided. 1.UST Faculty of Civil Law ___________________________ b. But the when a co-owner acquires another co-owners share co-ownership may be terminated in accordance with Article through purchase or legal redemption. (403) impliedly recognized co-ownership). Prescription as means of acquiring ownership in article. the heirs allowed parties or by judicial proceedings. the co-owners cannot demand a physical division of rd favor of 3 person. when to do so would render it unserviceable for the Q: Is redemption a mode of terminating co-ownership? use it is intended b. 496. Partition. Q: Will prescription lie? Art. (402) NOTE: Construction of a house on a co-owned property = implied partition by an act that would identify the share of Partition may be in writing. Co-owner liable for the defects of title and quality of the new one in his name [2] action to quiet title to property portion assigned to each of the co-owners [3] action for recovery of ownership) 2. he has no more right to intervene A: in the petition. If partition will only impair its use. Co-owner has performed unequivocal acts of repudiation he is the new co-owner amounting to an ouster of the other co-owners (ex. Impairment is a necessary consequence of partition and is not Heirs (co-owners) allowing the one year redemption period to a ground to refuse partition expire without redeeming the property and even permitted the consolidation of ownership and the issuance of new title Art. The creditors or assignees of the co-owners may take part in the division of the thing owned in common and A: object to its being effected without their concurrence. Partition may be made by agreement between the in favor of the bank. because there is ownership really no conveyance of property. any other real rights belonging to them before 3. each co-owner shall pay for damages executed unless: caused by reason of his negligence or fraud. . The partition of a thing owned in common shall not works. them due to the negligence or fraud of the indemnifying co-owner 8. after partition.UST Faculty of Civil Law ___________________________ Q: Who are CREDITORS? them before the division was made. (n) (1) there has been fraud perpetrated Art. (n) NOTE: The law does not require co-owners to notify creditors/ assignees about the partition. be liable for (2) it was made despite formal opposition thereto defects of title and quality of the portion assigned to each of the other co-owners. what are the remedies of co-owners? (1) Rivers and their natural beds. and reimbursable c. (7) Waters found within the zone of operation of public Art.NOTES ON PROPERTY Kenneth & King Hizon (2A). Agree on the allotment of entire property to one of them running in their natural beds and the beds themselves. Protection applies to real and personal rights Q: What are the requisites to enable the creditors or assignees assail partition already executed? Art. A: (2) Continuous or intermittent waters of springs and brooks 1. servitude or any other real rights belonging to belonging to private persons. 2. To exercise legal redemption 4. prejudice third persons. they will be paid first such rights even after the partition of the property 2. 498. 2. (405) rd (1) Ordinary creditor. even if constructed by a contractor. (6) Subterranean waters on public lands. The following are of public dominion: indivisible. .Ownership of Waters Q: It is said that community property is essentially Art. 499. notwithstanding the partition. who in turn will indemnify the others for their respective (3) Waters rising continuously or intermittently on lands of interests public dominion. mortgage. to the State. 502. (5) Rain waters running through ravines or sand beds. Property shall be sold and proceeds distributed to co. (404) SECTION 1. prudence dictate After partition. 3 person who have rights attached to the (2) Preferred creditor – in case of liquidation or sale of community property before its partition shall retain property. if there are still benefits and expenses that they be notified. there shall be a mutual accounting for benefits received and reimbursements for expenses A: Creditors or assignees cannot assail partition already made. account for benefits received a. reimburse expenses incurred by others which are legally b. Upon partition. Every co-owner shall. to warrant defects of title and quality of the portions assigned to each of them The co-owner may redeem the shares of all or any other co- rd owner if sold to 3 persons.loan is not secured 1. which NOTE: What is prohibited in art 495 and 498 is only PHYSICAL are also of public dominion. incurred. indemnify other co-owners for the damages suffered by partition. who shall retain the rights of (8) Waters rising continuously or intermittently on lands mortgage. 501. which had not been settled in the partition agreement. 500. (4) Lakes and lagoons formed by Nature on public lands. servitude. Personal rights pertaining to third persons against the co-ownership shall A: also remain in force.SOME SPECIAL PROPERTIES Art. the PROCEEDS can BE DIVIDED. or Facultad de Derecho Civil 42 UNIVERSITY OF SANTO TOMAS . therefore. co-owners shall remain liable therefore and shall Partition shall not prejudice third persons who shall retain the have mutual obligations: rights of: 1. it shall be sold and its proceeds distributed. DIVISION. If the price of the alienation is grossly Title IV. Whenever the thing is essentially indivisible and CHAPTER I the co-owners cannot agree that it be allotted to one of WATERS them who shall indemnify the others. and owners their beds. Likewise. to a province. 517. crossing lands Art. but after the a piece of land of matter. (414a) (2) Lakes and lagoons. and those of brooks. or establishments. may make explorations thereon on titles of ownership specifying the right or ownership for subterranean waters. (421) August 3. 507. (411a) them to be done. while running through the same. The private ownership of the beds of rain waters lands. or another right to the use of its bed or banks. continuous or intermittent. (408) Law.General Provisions Art. Every owner of a piece of land has the right to which are not of public dominion. at his election. The right to make use of public waters is such works. (419) NOTE: Art503 & 504 Repealed by PD1067 SECTION 5. shall be obliged. . (409a) shall become of public dominion. and by the Irrigation Law. 509. (420) Art. The following are of private ownership: Art. 512. except as provided by the Mining Law. banks and persons. through which or along the boundaries of which the aqueduct passes. (413) Art. Waters artificially brought forth in accordance with (2) By prescription for ten years. (407) whose destruction. 510. cannot claim ownership over it. 511. No one may enter private property to search (1) Continuous or intermittent waters rising on lands of waters or make use of them without permission from the private ownership. 1866. either to make extinguished by the lapse of the concession and by non-user the necessary repairs or construction himself. 506. 513.The Use of Waters of Private Ownership injury. due to a change of their course. bed. When the owner of waters artificially brought to concession. . 503. 516. may use its applicable to the case in which it may be necessary to clear waters while they run through the same. formed by rain water. by the owners of the lands which suffer or are clearly exposed to suffer SECTION 3. does not give a right to make works or constructions which (9) The waste waters of fountains. and. be it continuous or intermittent. Only the owner of a piece of land. except as provided by the Mining claimed. they form in which the waters have been used. whose accumulation or fall may waters leave the land they shall become public. (417a) Art. formed by Nature on such lands. (418) The extent of the rights and obligations of the use shall be that established. belong to the person who brought them up. owners.Subterranean Waters of lands. to the damage or peril of use shall be governed by the Special Law of Waters of third persons. . or to permit for five years. land has over the waters rising thereon does not prejudice (4) Rain waters falling on said lands. 504. 505. Art. (416) floodgates shall be considered as an integral part of the land of building for which the waters are intended. without damage to him. 1866. Every concession for the use of waters is Art. and their beds. unless the claim is based person with his permission.UST Faculty of Civil Law ___________________________ to a city or a municipality from the moment they leave such Art. may cause such damage.NOTES ON PROPERTY Kenneth & King Hizon (2A). sewers and public may change their course to the damage of third persons. in the first case. the water. or on which. (410) defensive works to check waters.The Use of Public Waters dominion may be made only with the permission of the administrative authorities. the Special Law of Waters of August 3. The owner of a piece of land on which there are understood to be without prejudice to third persons. All the owners who participate in the benefits arising from the works referred to in the two preceding Facultad de Derecho Civil 43 UNIVERSITY OF SANTO TOMAS . in the second case. The owner of a piece of land on which a spring or Art. legally acquired to the use thereof. . provided he causes no damage to the public or to third In every drain or aqueduct. or any Art. 515. Explorations for subterranean waters on lands of public SECTION 2. Art. as long as they remain the rights which the owners of lower estates may have within the boundaries. (415) (5) The beds of flowing waters. by the manner and the surface abandons them to their natural course. construct within his property. and their obstruct the course of the waters. reservoirs for rain waters. by the terms of the Art. The ownership which the proprietor of a piece of (3) Subterranean waters found on the same. it may be necessary to reconstruct Art. 508. The owners SECTION 4. 514. (412a) Art. The use of public waters is acquired: (1) By administrative concession. by the force of floods. The provisions of the preceding article are brook rises. water from rainfall whether natural. (422) these resources. Natural lakes and lagoons. Atmospheric water. the State may allow the use or development of Note: The owner of the land where the water is found may waters by administrative concession. 1. utilization. PD1067 – Water Code of the Philippines [1976] To identify the administrative agencies which will enforce the 2. 2. (425a) To adopt a basic law governing the ownership. shall be obliged to contribute to the expenses of To establish the basic framework relating to the construction in proportion to their respective interests. New Civil Code provisions not repealed by PD1067 Water Code 3. and A: 1. seepage Q: What are the underlying principles under the Water Code and drainage. Q: What is appropriation? Pertinent Provisions A: It is the acquisition of rights over the use of waters or the taking or diverting of waters from a natural source in the DECLARATION OF OBJECTIVES AND PRINCIPLES manner and for any purpose allowed by law. provided that such use shall be registered. of the Philippines? 5. cannot be the subject to acquisitive prescription.” flowing over lands. To define the extent of the rights and obligations of water Art. All waters belong to the State. or artificial. the same 7. xxxx are owned by the State. A: It refers to water above and under the grounds. 1866. use the same for domestic purposes without securing a permit. Any person who captures or collects protection of water resources shall be subject to the control water by means of cisterns. and of the sea within the territorial jurisdiction of the Philippines. thereafter. exploitation. conservation and Q: What are the governing Laws on Waters? protection of water resources and rights to land related thereto. when The utilization. A: Sec2. 3. tanks. the water will be used or stored and. appropriation. Nonetheless. hereinafter referred to as the the same. XII of the 1987 Constitution provides: “All lands 4. development. and water from agriculture runoff. Spanish Law on Waters of 1866 provisions not repealed by PD1067 OWNERSHIP OF WATERS Q: Who owns water? The following belongs to the State: A: The State. Seawater. Law of Waters of August 3. in the APPROPRIATION OF WATERS atmosphere. Water legally appropriated shall be subject to the control of Preference in the use and development of waters shall the appropriator from the moment it reaches the consider current usages and be responsive to the changing appropriator's canal or aqueduct leading to the place where needs of the country.UST Faculty of Civil Law ___________________________ articles. appropriation. Subterranean or ground waters. Continuous or intermittent waters of springs and brooks Q: What is the constitutional basis of this? running in their natural beds and the beds themselves. The objectives of this Code are: Q: What are the purposes by which water may be appropriated? Facultad de Derecho Civil 44 UNIVERSITY OF SANTO TOMAS . Correspondingly. conservation and required by the Council. and. 6. so long as it is being beneficially used for the purposes for which it was Q: What do you mean by waters? appropriated. or pools shall have and regulation of the government through the National exclusive control over such water and the right to dispose of Water Resources Council. Rivers and their natural beds. Council. Art. All matters not expressly determined by the users and owners including the protection and regulation of provisions of this Chapter shall be governed by the special such rights.NOTES ON PROPERTY Kenneth & King Hizon (2A). exploitation. All other categories of surface waters such as water of the public domain. development. control and conservation of water resources to Those who by their fault may have caused the damage shall achieve the optimum development and rational utilization of be liable for the expenses. 518. waters. and by the Irrigation Law. 8. priority in time of appropriation shall give the better Subject to the provisions of this Code concerning the control. any person may appropriate or use natural the where water shortage is recurrent and the appropriator for municipal bodies of water without securing a water permit for any of use has a lower priority in time of appropriation. and (b) Bathing or washing. every appropriator of water shall appropriate water without a water right. Water rights may be leaded or transferred in whole or in part to A: another person with prior approval of the Council. Between two or more appropriators of water from the same sources of supply.NOTES ON PROPERTY Kenneth & King Hizon (2A). and 9. Irrigation Q: What is the rule as to the limitation for the use and 4. and (b) That the proposed easement is the most convenient and the least onerous to the servient estate. producing the benefits for which the water is appropriated. Q: Who will prescribe the standards for “beneficial use”? Waters appropriated for a particular purpose may be applied A: for another purpose only upon prior approval of the Council and on condition that the new use does not unduly prejudice GR: Standards of beneficial use shall be prescribed by the the rights of other permittees. in whole or in part. records of water withdrawal. or require an increase in the council for the appropriator of water for different purposes volume of water. by agreement of the contracting parties provided the same is not contrary to law or prejudicial to third persons. or as of the date of actual use in a case where no permit is required. right amount during the period that the water is needed for exempt from appropriation for any or all purposes and. XPN: No person. after due notice and 1. watering or dipping of domestic or A: A water right shall be exercised in such a manner that the farm animals. and keep evidenced by a document known as a water permit. Q: Who may apply for water permits? Article 25. appropriate and use water. prejudiced thereby. and the use of waters which are appropriated shall be measured and controlled in accordance therewith. Article 16. and regulation of the appropriation municipal purposes shall have a better right over all other uses. including government instrumentalities or government-owned or controlled corporations. 2. except that in times of emergency the use of water for domestic and protection. who are duly qualified by law to exploit and conditions: develop water resources. such waters may not be appropriated for those purposes. Domestic hearing. shall XPN: domestic use. and navigation of watercrafts or transportation rights of third persons or of other appropriators are not of logs and other objects by flotation. of legal age. When required by the Council. may declare A: Beneficial use of water is the utilization of water in the waters not previously appropriated. as well as and facilities needed for the beneficial use of the waters to be appropriated subject to the requirements of just compensation and to the following juridical persons. A holder of water permit may demand the establishment of easements necessary for the construction and maintenance of the works A: Only citizens of the Philippines. conservation. The right to the use of water is deemed acquired as of the date of filing of the application for a water permit in case of approved permits. Facultad de Derecho Civil 45 UNIVERSITY OF SANTO TOMAS . right. Power generation appropriation of water? 5. Municipal 3. and conditions. mortgagee or one having real right over Pertinent provisions of the Water Code the land upon which he proposes to use water. all appropriators of water shall furnish information on water Water right is the privilege granted by the government to use. (a) Appropriation of water by means of handcarried Q: How is water right exercised? receptacles. Article 22. may apply for water permits. lessee. Livestock raising A: The measure and limit of appropriation of water shall be 7. Provided. which shall be maintain water control and measuring devices. (a) That he is the owner. Article 17.UST Faculty of Civil Law ___________________________ Article 19. Industrial beneficial use. Fisheries 6. Recreational. then it shall be his duty to find an alternative source of supply in accordance with conditions the following: prescribed by the Council. Any person who desires to obtain a water permit shall file an application with the Council who shall make known said application to the Easements relating to the appropriation and use of waters may be modified public for any protests. thereupon. for reasons of public policy. Other purposes Q: What is beneficial use? GR: The State. and use of waters. that such consumption will not adversely affect the health and safety of the public. construction or repair of the following works shall be undertaken only after the plans and specifications therefor. obstruct the flow of water. or drainage. Control area is an area of land where subterranean or ground water A: When artificial means are employed to drain water from and surface water are so interrelated that withdrawal and use in one higher to lower land. CHAPTER IV as may be required by the Council. are approved by the UTILIZATION OF WATERS proper government agency. due a legal easement as wide as may be needed along and adjacent to the river consideration shall be given to the preservation of scenic places and bank and outside of the bed or channel of the river. diversion. failure to keep records of the Department of Public Works. the for short periods under special circumstances. For this purpose the Council shall promulgate rules and regulations Q: How should water drainage be constructed from a higher and declare the existence of control areas for the coordinated to a lower land? development. damage to another. Any person may erect levees or revetments to protect his of navigable or floatable waterways? property from flood. the owner of the higher land shall select similarly affects the other. the person responsible for the damage shall pay Provided. and utilization of subterranean or ground water and surface waters. streams. loss or injury to him. No person or agency shall distribute promulgated to prohibit or control activities that may damage or cause deterioration or lakes and dikes. no works that would required the destruction or removal of such places or relics shall Article 56. right in the other. A: Facultad de Derecho Civil 46 UNIVERSITY OF SANTO TOMAS . In the construction and operation of hydraulic works. when required. Article 55. Article 35.NOTES ON PROPERTY Kenneth & King Hizon (2A). Article 48. aqueduct or reservoir. flumes and other said permittee in the same amount less allowance for normal losses in structures necessary for maintaining access. private persons may be used by any person for domestic purpose or for watering plants as long as the water is withdrawn by manual methods Article 47. non-payment of water charges. it maybe suspended on the grounds of non- structures across of which may interfere with the flow of compliance with approved plans and specifications or schedules of water distribution. and for this purpose it shall have Article 37. Transportation and Communication and such permission shall not be granted where such cultivation obstructs the flow of water or increase flood levels so as to cause damage to other areas. A: When the reuse of waste water is feasible. any permit or rules and regulations promulgated by the Council. Works. distribution and utilization of water resources shall contain adequate provision for the prevention and CHAPTER V control of diseases that may be induced or spread by such works when CONTROL OF WATERS required by the Council. Q: Who has the authority to construct dams. change the such water for public consumption until it is demonstrated natural flow of the river. increase flood losses or aggravate flood problems. however. bridges and other beneficially used. and violation of any term or condition of Communications. Water contained in open canals. structures for the use of water power. provided that such constructions does not cause damage to the property of another. When a water resources project interferes with the access of Article 34. Temporary permits may be issued for the appropriation and use of water XPN: in cases of emergency to save life or property. historical relics and. flood plain lands. wastage. use of water for a purpose other than that for which it was navigable or floatable waterways shall first be secured from granted. That this right may be restricted by the owner should it result in compensation. In declared flood control areas. in addition to the provisions of existing laws. minimum damage to the lower lands. Water permits shall continue to be valid as long as water is GR: Authority for the construction of dams. the Secretary of Public Works. addition to paying compensation for land and incidental damages. in transit. Transportation and Communications may declare flood control areas and promulgate guidelines for governing flood plain management plans in these areas. sand bars and tidal flats may not be cultivated except be undertaken without showing that the distribution or removal is upon prior permission from the Secretary of the Department of Public necessary and unaviodable. The boundary of a control area may be altered the routes and methods of drainage that will cause the from time to time. subject to the Article 33. To promote the best interest and the coordinated protection of Q: State the rule as to the reuse of water waste. Article 53. Transportation and water diversion. installations Article 32. so that a superior right in one not adversely affected by an inferior structures for utilization of water resources. Works for the storage. encroachment by the river or change in the course of the river. A water permittee or appropriator may use any watercourse to landowner to a portion of his property or with the conveyance of irrigation convey water to another point in the watercourse for the purpose stated in or drainage water. irrigation. River beds. rules and regulations may be human consumption. When the use. the person or agency constructing the project shall bear a permit and such water may be diverted or recaptured at that point by the cost of construction and maintenance of the bridges. it shall be limited as much as possible. dams for the diversion or storage of water. protection. as circumstances warrant. conveyance or storage of waters results in without checking the stream or damaging the canal.UST Faculty of Civil Law ___________________________ Article 28. The utilization of subterranean or ground water shall be for the utilization of subterranean or ground water and other coordinated with that of surface waters such as rivers. The government may construct necessary flood control structures in declared flood control areas. bridges or other structures across of which may interfere with the flow Article 57. aqueducts or reservoirs of requirements of just compensation. springs and lakes. to such uses other than direct Article 54. Article 77. use. The owners of the land thus affected are not entitled to compensation for any damage sustained thereby. without prior permission from the National spacing in which borings for subterranean or ground water may be made. and other relevant factors. and Article 75. Communication and work pertaining thereto are commenced within two agriculture. due regard shall be given to ecological changes resulting from the construction Article 62. and minimum water levels supply. standard. When a river or stream suddenly changes its course to traverse occupants thereof within the protected area which may damage or cause private lands. control of pollution. Article 64. Pollution Control Commission. be declared navigable either in whole or in part. Whoever operates the reservoir shall. upon the recommendation of the Philippines Coast Guard. location. coordination with the Professional Regulation Commission prescribe the qualifications of those who would drill such borings. maintenance and administration of the dam. depth. The impounding of water in ponds or reservoirs may be No water permit shall be granted to an individual when his water prohibited by the Council upon consultation with the Department of Health requirement can be supplied through an irrigation association. the owners of the affected lands may not compel the the deterioration of the surface water or ground water or interfere with the government to restore the river to its former bed. protection. if it is dangerous to public health. including the granting of permits and the imposition of penalties for Facultad de Derecho Civil 47 UNIVERSITY OF SANTO TOMAS . for lakes may be established by the Council under such conditions as may be necessary for the protection of the environment. Article 65. water. or any porous stratum under neath the surface without being beneficially used. The Administration and enforcement of the provisions of this such Department to prohibit or control such activities by the owners or Code. Article 73. or into any surface proportion to the area lost by each. municipal use shall be subject to the rules and regulations promulgated by the benefits would accrue to the receiving basin on account of the transfer. That a permit Article 69. downstream. Any watershed or any area of land adjacent to any surface water PROVISIONS OF THIS CODE or overlying any ground water may declared by the Department of Natural Resources as protected area Rules and regulations may be promulgated by Article 79. build any works that may produce determine the requirements for the registration of every boring or dangerous or noxious substances or perform any act which may result in alteration to existing borings as well as other control measures for the the introduction of sewage. Article 61. release water for minimum stream flow. It shall be the duty of any person in control of a well to prevent owners of the new bed shall be the owners of the abandoned bed in the water from flowing on the surface of the land. are flotable may be controlled or prohibited during designated season of the year with due regard to the needs of irrigation and domestic water Article 71. CHAPTER VII navigation. management or administration of government from taking steps to revert the river or stream to its former such waters. alternative schemes for supplying water to the receiving basin. Provided. Article 63. The Council shall approve the manner. receive equal attention with other project purposes. After due notice and hearing when warranted by circumstances. the merger of irrigation associations and the appropriation of waters by associations instead of by individuals shall be encouraged. Article 59. Article 70. The operator of a dam for the storage of water may be required Article 74. In considering any request for such Article 76. and in source of water supply. This standard may vary according to the use of the water and shall be set by the National Pollution Control Commission. may affect the source of a water supply or a reservoir for domestic or the benefits that would accrue to the basin of origin without the transfer. surface of the land or into any surface water or into any other aquifer or porous stratum. The rafting of logs and other objects on rivers and lakes which permission of the Council. when required. To promote better water conservation and usage for irrigation supply and other uses of water. CONSERVATION AND PROTECTION OF WATERS AND WATERSHEDS AND RELATED LAND RESOURCES Article 78. animals. ADMINISTRATION OF WATERS AND ENFORCEMENT OF THE Article 67. the Council shall take into account the full costs of the transfer. Transportation and water with minerals or other substances injurious to man. The application of agricultural fertilizers and pesticides may be prohibited or regulated by the National Pollution Control Commission in Article 66. the former Article 68. and vegetation to prevent such waters from flowing on the years from the change in the course of the river or stream. control. and general public use. The conservation of fish and wildlife shall receive proper consideration and shall be coordinated with other features of water All reservoir operations shall be subject to rules and regulations issued by resources development programs to insure that fish and wildlife values the Council or any proper government agency. industrial waste. Swamps and marshes which are owned by the State and which to employ an engineer possessing qualifications prescribed for the proper primary value for waterfowl propagation or other wildlife purposes may be operations. the Department of Health. reserved and protected from drainage operation and development. Article 72. The owners of the affected lands may undertake to return the river or stream to its old bed at their own expense. the areas where such application may cause pollution of a source of water minimum stream flows for rivers and streams. Waters of a stream may be stored in a reservoir by a permittee of the project in order to balance the needs of development and the in such amount as will not prejudice the right of any permittee protection of the environment.NOTES ON PROPERTY Kenneth & King Hizon (2A). In the consideration of a proposed water resource project. It shall be the duty of any person in control of a well containing therefor is secured from the Secretary of Public Works. prevention of salt damage.UST Faculty of Civil Law ___________________________ Article 58. No person shall. course. or any pollutant into any exploitation of subterranean or ground water resources. However. Rivers. nor can they restrain the investigation. Water from one river basin may be transferred to another river basin only with approval of the Council. purposes. Tailings from mining operations and sediments from placer mining shall not be dumped into rivers and waterways without prior permission from the Council upon recommendation by the National CHAPTER VI Pollution Control Commission. lakes and lagoons may. Water pollution is the impairment of the quality of water beyond a certain No person shall drill a well without prior permission from the Council. The establishment of cemeteries and waste disposal areas that transfer. or it may order that such pond or reservoir be drained if such is necessary for the protection of public health. No person shall utilize an existing well or pond or spread waters for recharging substerranean or ground water supplies without prior Article 60. the party appealing receives a copy of the decision. and (3) to its approval. water resources of the country. and protection of the competent court. and to perform such other acts as are necessary in carrying out their functions including the power to exercise the right of eminent domain. A: It cover all inorganic substances found in nature. shall review the plans and specifications and recommended to the Council proper action thereon and the latter shall approve the same only when they are A: inconformity with the requirements of this Code and the rules and 1. in a amount fixed by the Council to answer for damages Article 81. The decisions of the Council on water rights controversies may be appealed to the Court of First Instance of the province where the subject Such rules and regulations prescribed by any government agency that matter of the controversy is situated within fifteen (15) days from the date pertain to the utilization. and except in regard to those functions which under this Code are specifically Article 88. building or construction purposes Non-compliance of violation of such orders or subpoena and subpoena duces tecum shall be punished in the same manner as indirect contempt of Q: What are mineral lands? an inferior court upon application by the aggrieved party with the proper Court of First Instance in accordance with the provisions of Rules 71 of the Rules of the Court. the government agency whose functions embrace the country? the type of project for which the structure is intended. 519. The Council or its duly authorized representatives. exploitation. compel the exception of the soil which supports organic life and of attendance of witnesses by subpoena and the production of relevant ordinary earth. except those which the Council may. Article 80. with the exercise of its power to investigate and decide cases brought to its cognizance. conservation. within ten (10) 2. empowered to make all decisions and determinations provided for in this conservation and protection of waters within the meaning and context of Code. The Council and other agencies authorized to enforce this Code are empowered to enter upon private lands. utilization. special laws. Facultad de Derecho Civil 48 UNIVERSITY OF SANTO TOMAS . right to the use of water. shall have been filed by collection. The Council shall have original jurisdiction over all disputes to conferred upon other agencies of the government. CHAPTER 2 Article 85. or protection of water MINERALS resources may be undertaken without prior approval of the Council.UST Faculty of Civil Law ___________________________ administrative violations hereof. exploitation. Notwithstanding such approval. Art. RA7942 – Philippine Mining Act of 1995 regulations promulgated by the Council. the Council is hereby relating to appropriation. for the purpose of conducting surveys and hydrologic investigations. gravel. exploitation. be subject grounds. development. Violations of such rules and regulations may be administratively dealt with by the Council. exempt. unless the suspension is virtue of an order of a appropriation. except when it is for purely domestic purposes. shall be relieved of his lands within the territory and exclusive economic zone of liability for damages in case of failure thereof by reason of defect in plans the Republic of Philippines are owned by the State” and specifications. immediately executory and the enforcement thereof may be suspended only when a bond. Article 83. exploitation. Any action recover such damages must be brought within five (5) years Q: What are minerals? following such failure. (2) question of law. Mining claims and rights and other matters concerning minerals and mineral lands are governed by The Council may require consultation with the public prior to the implementation of certain water resources development projects. The Council shall provide a continuing program for data occasioned by the suspension or stay of execution. or failure due to defect in construction. if the Council so requires. are hereby vested in the Council. on any of the following or protection of water resources shall. All dispute shall be decided within sixty (60) days after the parties submit Article 82. RA7076 – People’s Small-Scale Mining Act of 1991 years from the completion of the structure. The Council may deputize any official or agency of the The decisions of the Council on water rights controversies shall be government to perform any of its specific functions or activities. research and manpower development needed for the the appealing party. shall have the power to administer oaths. (427a) Article 86. nor the constructor who built it. development. Article 84. the provisions of this Code. Article 89. liquid. sand and stone which are used for documents by subpoena duces tecum. with previous notice to the owner. In the implementation of the provisions of this code. control. in its discretion. conservation. When plans and specifications of a hydraulic structure are Q: What are the governing laws for the mineral resources of submitted for approval. control. The Council is hereby authorized to impose and collect reasonable fees or charges for water resources development from water appropriators. utilization. (1) grave abuse of discretion. conservation.000. whether Article 87. in the solid. Section 2 – “All mineral resources in public and private neither the engineer who drew up the plans and specifications of the hydraulic structure.NOTES ON PROPERTY Kenneth & King Hizon (2A). utilization. the Council the same for decision or resolution. development. No program or project involving the appropriation. control.00) and/or suspension or revocation of the water permit or other decisions with the assistance of local or national police agencies. questions of fact and law. shall promulgate the necessary rules and regulations which may provide for penalties consisting of a fine not exceeding One Thousand Pesos The Council shall have the power to issue writs of execution and enforce its (P1. gaseous r any intermediate state. Ex. TRADE-MARKS AND TRADE-NAMES Q: State the distinction between trademark and trade name. or dominant features of another. subject to because geographically or otherwise descriptive. the word or Trademark? phrase has come to mean that the articles was his product. 521. are trade. (n) distinguished. It pertains to person. Q: What is trade mark of trade name? Q: Discuss the doctrine of secondary meaning. corporation or firm registering the same. Trade mark-goods incurred in extracting and utilizing such minerals. Service mark. under the control of the registered owner of the collective mark. by which articles himself. enterprise.services Q: State the rule on Ownership of Mineral lands and Q: What is a collective mark? minerals? A: Any visible sign designated as such in the application for A: All mineral lands of public domain and all belong to state. it shall pertain in ownership to the person or juridical entity which registered it. either by its own meaning or by association. corporation. development or utilization shall other common characteristic. intellectual property office. Art. including the quality of the be limited to citizens of Philippines.UST Faculty of Civil Law ___________________________ A: Mineral Lands are lands which minerals exist in sufficient NOTE: quantity or quality to justify the necessary expenditures to be a. appropriation with reference to an article on the market. special laws.NOTES ON PROPERTY Kenneth & King Hizon (2A). 522. to the origin or ownership of the wares to which CHAPTER 3 it is applied. Trade-marks and trade-names are governed by organization. A: TRADE-MARK of TRADE NAME is a duly registered in the A: Word or phrase originally incapable of exclusive proper government bureau or office. Facultad de Derecho Civil 49 UNIVERSITY OF SANTO TOMAS . nevertheless have been used so long and so exclusively by one producer with reference to his article. (n) Trade mark Trade name Generally. A trade-mark or trade-name duly registered in the proper government bureau or office is owned by and A: pertains to the person. subject to the provisions of special laws. and may be mark affixed in goods or manufacturer or the dealer transferred together with the right to use the name under articles. corporation at least 60% goods or services of different enterprises which use the sign of capital is owned by citizens. registration and capable of distinguishing the origin or any The disposition. b. Ownership of mines does not depend upon the ownership of soil in this country Q: What is the function of a trademark? A: It is to pint distinctively. might provisions of special laws. it must be Mang Ed’s vigan longganisa Q: What is a mark? Q: What is the test of dominancy? A: Any visible sign capable of distinguishing the goods (trade mark) or services (service mark) of an enterprise and shall A: If the competing trade mark contains the main or essential include a stamped or marked container of goods. that in that trade Q: What is the effect of registration in the Bureau of and to that branch of the purchasing public. (n) produced or dealt by a individuality of the matter or particular person or dealer for protection in Art. The word or phrase should acquire a secondary meaning as to A: Duly registered in the bureau of trademark under the be exclusively associated with its products and business. 520. Q: What is the Regalian doctrine in relation to the mineral resources? Q: What is trade name? A: All minerals belong to the state whether the land covered A: The name of designation identifying or distinguishing an by torrens system and whether or not it is privately owned. Vigan longganisa cannot be patented. exploitation. It involves the which the business is conducted. a sign device or It is descriptive of the Art. or firm registering the same. The goodwill of a business is property. and confusion deception is likely to result infringement. For instance.UST Faculty of Civil Law ___________________________ 2. making it ex. Degrees of possession Q: What are the different degrees of possession? Title V. INCIDENTAL to OWNERSHIP -If you own it. pretends to be the owner NOTE: Only things and rights which are susceptible of being 4. But. Possession WITHOUT TITLE -Mere holding without any POSSESSION AND THE KINDS THEREOF right ex.this degree of possession ripens to full A: It is a right and a fact. 3. certain consequences follow. quality and general atmosphere of the business Q: What are the viewpoints of possession? house. (430a) 2. It is a fact since it exists. reputation. It is inseparable from the Ex: I own a house. Possession WITH JUST TITLE which is sufficient to Q: Is possession a right or a fact? TRANSFER OWNERSHIP but NOT ACQUIRED FROM REAL OWNER. 523.Perfect appropriated may be the object of possession (Art. honesty and fair dealing. Possession is the holding of a thing or the enjoyment of a right. Relation is one of power or control Q: What is the Wholistic of totality test? 3. I am entitled to possess it. In one’s own name and in name of another A: Passing of the product as if it is the original 2. a lessee of a conducted. In the concept of an owner and possession in the concept of a holder Q: What is Goodwill? 3. This is the possession that springs from ownership Concept of Possession: Mere possession cannot defeat the title of a holder of a 1. Implies relation between a person and things registered Torrens Title to real property (Eduarte v. the moment it exists.NOTES ON PROPERTY Kenneth & King Hizon (2A). depository or pledge A: It is the holding of a thing and enjoyment of a right.POSSESSION A: CHAPTER 1 1. Possession WITH JURIDICAL TITLE but title IS NOT ONE OF OWNERSHIP-juridical possession. CA) Facultad de Derecho Civil 50 UNIVERSITY OF SANTO TOMAS . automatically you have the RIGHT TO POSSESSION A: It is a special personal property. Possession WITH JUST TITLE FROM REAL OWNER. Control is one of fact which is effective but without resolving whether it carries with it or not a title of A: ownership Q: What is infringement? Classification of possession A: A colorable imitation Q: What are the classes of Possession? Q: What is unfair competition? A: 1. property who is not the owner has a RIGHT OF POSSESSION to the property for the period of the lease provided Ex: I am renting a house. it is transferable with b. INDEPENDENT from OWNERSHIP-Independent and the right to use the name of the business under which it is separate from ownership. I am entitled to possess it business to which it is adhering. A: Q: Is goodwill a real or personal property? a. In this case. Possession of a thief over a stolen thing Art. Lure Viewpoints of possession of a product and place of business arising from name. Tenant. Good faith and bad faith A: Reputation for competence. the Q: What is possession? possession is peaceably acquired ex. but from ownership by lapse of time. . Possession of a buyer of a land from one who also a right. 530) possession. representation of the former. Owner of a real estate has possession. The possession of things or rights may be had in a. An example of actual possession of real property by an owner through another is a lease agreement whereby Right to possession v. Necessary. CA) apartment has the right to entitled to possess the possess it property leased Classes of possession Q: What is constructive possession? Q: What are the classes of possession? A: The possession of a part is a possession of the whole. Voluntary. In own name one of two concepts: either in the concept of owner. Bad faith 1. either as an owner by virtue of agreement or as a holder 2. A: Possession in the eyes of the law does not mean that a man 1.UST Faculty of Civil Law ___________________________ (2) Concept of Possession Elements of possession a. (413a) another Kinds of possession NOTE: The owner can subject the property to his own will.INDIRECT POSSESSION-Possess the thing through an Art. he cannot dispose. a mere possessor Q: What are the kinds of possession? has limited rights over property.as when a mother possesses for a child still in her womb Q: How is the element “holding of the thing” accomplished? 3. (Reyes v. CA) Q: Distinguish Right to possession from right of possession. the right to the possession is in one person while the fact of possession RIGHT TO POSSESSION RIGHT OF POSSESSION is in another person and the latter merely acts in It is an incident or attribute It is an independent right. Holding (actual or constructive) of the thing. Of Lands). As a matter of fact. Conscious and deliberate intention to possess the A: thing 1. Concept of an owner b. Possessing the thing in his own name it can be said that he is in possession (Ramos v.NOTES ON PROPERTY Kenneth & King Hizon (2A). the actual Also known as Jus Also known as jus possessor (the agent) is not considered in law as legal possidendi possessiones possessor because the possession is not by virtue of his own Example: an owner of an Example: a lessee is right. He can dispose the same. Possession may be exercised in one's own name or authorized agent. If both the fact of possession and right of possession are found in the same person. occupancy. If.this will become the principal’s possession only after there has been a ratification without prejudice A: It is accomplished by acquiring possession through any of to the effects on negotiorum gestio. A: (1) According to name used Art. the modes provided in 531. Unauthorized. 2. Existence of a thing or right 2. the latter’s possession is said to of ownership of the thing separate from ownership be exercised in another’s name. such possession is said to be A: exercised in one’s own name.as when the agent possesses for the principal 4. On the other hand. either when he himself Q: How would you characterize possession? is physically in occupation of the property. Dir. Concept of a holder Q: What are the elements of possession? (3) Condition of the mind a. Right of possession the lessor transfers merely the temporary use and enjoyment of the thing leased. Holding is by virtue of one’s right. 525. Name of another Facultad de Derecho Civil 51 UNIVERSITY OF SANTO TOMAS . or when another person who recognizes his rights as owner is in such A: Possession is presumed ownership. (Heirs of Jose Olviga v. or in b. In this case. Exercising it in the name of the agent or in that of another. 524. Q: What are the kinds of possession in another’s name? enjoyment or exercise of a right 3.DIRECT POSSESSION -Owner or possessor is in actual has to have his feet on every sqaure meter of ground before possession of a thing. on the other hand. Good faith A: b. which flaw or defect renders it invalid. mode of acquisition which renders it invalid. his title or mode of acquisition.UST Faculty of Civil Law ___________________________ that of the holder of the thing or right to keep or enjoy it. NOTE: Lessee. Possessor is unaware of the flaw or defect. Possessor has a title or mode of acquisition subsequently entered into by the mortgagor and the 2. (432) the basis of good faith. or believes the consolidation of title in the name of the latter. It is presumed that possession continues to be acknowledge in another a superior right. a case for that the thing belongs to him ejectment or unlawful detainer. he is a possessor in enjoyed in the same character in which it was acquired. (436) entitled to acquire ownership of a property by virtue of extraordinary prescription Possessor in good faith and possessor in bad faith CONCEPT OF A HOLDER -Possession of the possessor does Q: Who is a possessor in good faith? not arise from any belief or conviction that he is the owner of the thing. 529. usufructuary. are considered as possessor in the concept of a holder with respect to the thing itself but Q: What are the requisites to be considered as possessor in considered in the concept of the owner with respect to their good faith? right A: Where a lease agreement. Exercise acts of ownership as if he is the owner 2. So long as a person claims ownership of the property and does not Art. (433a) Concepts of possession Art. because the possessor acknowledges the A: He is one who is not aware of any existing flaw or defect in ownership of thing by another person. not a motion for a writ of possession. 528. Possession acquired in good faith does not lose this proceeds from the person’s belief or pretension that he is the character except in the case and from the moment facts owner of the thing as manifested by certain acts of ownership exist which show that the possessor is not unaware that he and the public believes he is the owner.NOTES ON PROPERTY Kenneth & King Hizon (2A). Mistake upon a doubtful or difficult question of law may be the ownership pertaining to another person. Bring action for protection Q: Are possessors in the concept of a holder considered 3. until the concept of an owner. Facultad de Derecho Civil 52 UNIVERSITY OF SANTO TOMAS . Can avail of acquisitive prescription A: Possessors in the concept of a holder are not possessors in good faith. Flaw or defect in title or mode which invalidates it mortgagee after the expiration of the redemption period and 3. v. whether express or implied. Q: Who is a possessor in bad faith? He is deemed a possessor in bad faith who possesses in any A: He is one who is aware of the flaw or defect in his title or case contrary to the foregoing. May ripen into possesses the thing improperly or wrongfully. Possessor in good faith presupposes ownership in Art. He is deemed a possessor in good faith who is not another. Ask for registration of his possession possessors in good faith? 4. 527. and upon him who alleges bad faith on the part of a possessor rests the burden Things or rights may be possessed in of proof. aware that there exists in his title or mode of acquisition any flaw which invalidates it. (435a) ownership through acquisitive prescription. Good faith is always presumed. is 1. etc. A lessee is a occupation of the land of another is by reason of the latter’s legitimate possessor of the subject properties and could not tolerance or permission cannot be considered a possessor or be deprived of its lawful possession by a writ of possession. even a possessor in bad faith is the contrary is proved. MBTC) Q: What do you mean by mistake upon a doubtful or EFFECTS OF POSSESSION IN CONCEPT OF OWNER difficult question of law may be the basis of good faith? Q: What are the effects of possession in concept of owner? A: It refers to the honest error in the application of the law or in the interpretation of doubtful or conflicting legal provisions A: or doctrines and not to ignorance of the law. is the proper remedy in order to evict from the A person who has no title or mode of acquisition but whose questioned premises a mortgagor turned lessee. 1. Inc. builder in good faith. Entitled to just compensation 5. (434) CONCEPT OF AN OWNER -Possession of the possessor Art. 526. (Bukidnon Doctors’ Hospital. even an heir is not affected by bad faith of the deceased Q: What are the 2 Kinds of possessor? predecessor A: NOTE: 1. without prejudice to the A: juridical consequences of negotiorum gestio in a proper 1. (Kasilag v. 530. All things which are outside the commerce of man and those Exception: Possessor’s mistake upon a doubtful or difficult which. (437) A: Bad Faith is not transmissible from a person to another. Discontinuous servitudes evidence or by suit for recovery by the true owner. by his agent. may not be the object of question of law may serve as the basis of his good faith. the land. ocean Q: When will the possession in good faith cease? 2.UST Faculty of Civil Law ___________________________ NOTE: No tacking of bad faith. 532. good faith or bad faith? of appropriation: A: Good faith is always presumed 1. stars. He proceeded on the well-grounded belief that he easements are not susceptible of possession since they are was not violating the prohibition regarding the alienation of not susceptible of continuous exercise. Possession is acquired by the material occupation possession of a thing or the exercise of a right. Private – private person or entity one from compliance therewith.NOTES ON PROPERTY Kenneth & King Hizon (2A). moon. or by the fact that it is As to necessary expenses subject to the action of our will. (439a) Facultad de Derecho Civil 53 UNIVERSITY OF SANTO TOMAS . or by any person without any power whatever: but in the Q: What are the presumptions with respect to last case. 3. Possession may be acquired by the same person Limited to right of removal None who is to enjoy it. by his legal representative. Only things and rights which are susceptible of being appropriated may be the object of possession. by reason of physical impossibility cannot be subjected to human control. Property of public dominion in the title are made known to the possessors by extraneous 4. Public – possessor is the government General Rule: Art3. Presumed ownership Q: Is bad faith transmissible? Art. 69 Phil 217) Examples of things and rights which may not be the object Q: Which is presumed. or by the proper acts and Right of reimbursement and Right of reimbursement only legal formalities established for acquiring such right. the possession shall not be considered as acquired possession? until the person in whose name the act of possession was executed has ratified the same. possession Petitioner is not conversant with the laws because he is not a Servitudes such as discontinuous easements or non-apparent lawyer. 531. To be continuedly possessed in such character of interest had learned of the defect in the title and still possession purchased it. NCC – Ignorance of the law excuses no 2. distance or immensity – sun. unless the successors in 2. Good faith case. 5. Forces of nature in diffused state unless brought under human control through science A: Possession in good faith ceases from the moment defects 3. Non-apparent servitudes Rights of the possessor GOOD FAITH BAD FAITH As to fruits received Entitled to fruits while Reimburse fruits received or possession is still in good which legitimate possessor faith would have received As to rending fruits Liable with legitimate No right CHAPTER 2 possessor for expenses of ACQUISITION OF POSSESSION cultivatio and shall share in the net harvest to time of Art. (438a) retention As to useful expenses Art. Roque. Res Communes due to depth. Tradicion brevi manu 3. 712. 531 and occupation Q: What are the requisites? under Art. Remainder of the area must not be in the adverse possession of another person Occupation under Art531 Occupation under Art712 4. 60 Phil 114) A: Actual physical possession or material apprehension Facultad de Derecho Civil 54 UNIVERSITY OF SANTO TOMAS . Corpus – material holding of the thing or exercise of right which may be acquired through any modes mentioned Ex: Possession and cultivation of a portion of a tract under a 2. among others. 1934. By subjecting the thing or right to the action of our will 1. Material occupation of a thing or the exercise of a right A: 2. By subjecting the thing or right to the action of our will A: Possessor who is the owner of the property continues his 2.UST Faculty of Civil Law ___________________________ Modes of Acquiring Possession Constructive Delivery equivalent to Material Occupation Q: What are the modes of acquiring possession? Q: What are the 2 Forms of Constructive Delivery involved in Material Occupation? A: 1. By proper acts and legal formalities established for the 2. continues to possess it under a new title. A: Q: What is tradicion constitutum possessorium? 1. Area claimed must be reasonable Mode of acquiring Mode of acquiring possession ownership NOTE: Mere planting of a sign or symbol of possession cannot Applies whether or not Applies only where the justify a Magellan-like claim of dominion over an immense the property is with an property is without an tract of territory. Application of the doctrine of constructive owner or not owner possession shall depend. Director of Lands. By proper acts and legal formalities established for possession no longer under a title of ownership but under a the acquisition of such right title less than ownership Q: What are the requisites for acquiring possession? Q: What is the Doctrine of constructive possession? A: A: Possession is under title calling for the whole. Claiming ownership of the whole area 3. A: A: 1. Possessor was in actual possession of a portion or part of the property 2. Animus possidendi – intent to possess the thing or right claim of ownership of all is constructive possession if the remainder is not in the adverse possession of another Ex: Stolen goods placed in the bag of another person without (reason: the law does not mean that a man has to have his the former’s knowledge and consent – not a possessor feet on every square meter of ground before it can be said because of lack of intent to possess the goods that he is in possession) Q: Differentiate Occupation under Art. 1.NOTES ON PROPERTY Kenneth & King Hizon (2A). as was done by Q: What is material occupation? the alleged possessor does not constitute acts of possession (Ramirez v. A parcel of land may be A parcel of land cannot 1938. Director of Lands. 65 Phil 367) the object of possession be the object of occupation The mere fact of declaring uncultivated land for taxation purposes and visiting it every once in a while. to the size of the There must be intent to There must be intent to tract in controversy with reference to the portion actually in possess own or appropriate the possession of the claimant (Lasam v. now of Q: Which of the modes is considered derivative? ownership. Tradicion constitutum possessorium acquisition of such right Q: Which of the modes is an original mode of acquisition? Q: What is tradicion brevi manu? A: Material occupation of a thing or the exercise of a right A: Possessor who is possessing the thing by a title other than ownership. Facultad de Derecho Civil 55 UNIVERSITY OF SANTO TOMAS . quasi-contract. 533. Enrichment which represent those to be delivered thus placing the 2. without moment of the death of the decedent but only if the heir just or legal ground accepts the inheritance.UST Faculty of Civil Law ___________________________ Mere casual cultivation of portions of the land by the Note that rendition of services not included EXCEPT if services claimant and the raising thereon of cattle do not constitute rendered benefitted another (based on quasi-contracts--no possession under claim of ownership (Director of Lands v. means of recovering (contract. possession? In case of negotiorium gestio. No other actions based on contract. This is without prior consent of the principal. such possession is deemed “things” transmitted to the heir without interruption from the 2. the principal may or different from Solutio Indebiti which is payment made by may not ratify the act of possession mistake (UST vs. 2. Another suffered a loss thing under the control of the transferee 3. Agent or legal representative – someone authorized to Q: Distinguish rem verso from solution indebiti. quasi-contracts. However. in case the inheritance is accepted. Undue acquisition at the expense of another. shall return the same to him. “something” which means delivery or acquisition of whether testate or intestate. The possession of hereditary property is deemed possession of something at the expense of the latter transmitted to the heir without interruption and from the without just or legal ground. City of Manila). 1. It is subsidiary to solution indebiti. if the principal ratified it. acquire possession by the person who is to enjoy it A: Rem Verso is payment could be made voluntarily but there NOTE: If person acquires possession over the property will still be recovery. Someone acquires or comes into possession of If possession of property is effected by way of succession. Person who is to enjoy it 2. ratification by the person for A: whom the thing was acquired will retroact to the time of GR: Capacity to act is necessary for the acquisition of apprehension by the gestor and the possession of the former possession must be deemed to have been acquired from that moment Exception: Article 22. (440) Coverage: 1. delivery of a key to the house 4. person shall be unjustly enriched at the expense of another). who may acquire possession? A: Government not exempted from the principle of unjust A: enrichment. or any other means.NOTES ON PROPERTY Kenneth & King Hizon (2A). acquires or comes into the Art. crime or quasi- delict). possession shall be Q: Is capacity to act necessary for the acquisition of considered acquired only upon ratification. Q: What are other kinds of constructive delivery? Q: What are the requisites for the accion in rem verso? A: A: 1. Tradicio symbolica – delivery of symbols or some object 1. 1975. 68 SCRA 177) Q: What is the limitation to this rule? Q: What do you mean by “subjection to action of will”? A: Accion In Rem Verso – recovery for what has been paid A: A degree of control over the thing sufficient to subject the without just cause. moment of the death of the decedent. Tradicion longa manu – effected by the transferor crime or quasi-delict pointing out to the transferee the things which are being transferred Q: Is the government exempted from this principle of unjust enrichment? Q: Again. Without just or legal ground Example. NOTE: Enrichment with a just or legal ground is not prohibited One who validly renounces an inheritance is deemed never to have possessed the same. applicable only after exhausting all other same to the action of one’s will. Every person who through an act of performance by another. Reyes. he never possessed the 2. if it is not shown that he was aware of the flaws possession is allowed by the owner not by reason of affecting it. 536. affect possession. of neighborliness or good right to deprive another of the holding of a thing. 535. Accordingly. they must be represented by and the heir’s acceptance. Consequently. 534. and those executed clandestinely and without the knowledge of the possessor Q: What is the reason for the rule of uninterrupted of a thing. Abandonment: no longer interested in possessing. A: These acts do not affect possession: Existence of bad faith on the part of the possessor does not prejudice his successors-in-interest – bad faith is not 1. 2003) A: Bad faith is intransmissible because it is a state of mind Q: What are the acts which do not affect possession? personal to the person who acted. but during the interim period between the death of the decedent if there are legal impediments. the effects of possession in good 3. et al.NOTES ON PROPERTY Kenneth & King Hizon (2A). If the heir repudiates. -acts are not public and unknown to the owner or possessor. (442) That petitioners illegally entered into and occupied the GR: The heir will not suffer the consequences of the wrongful property in question. If the heir accepts the inheritance. owner is not ousted of his property. and the consequences of the wrongful possession of the 4. 146815. Art. heir. and there is a possessor who objects thereto. (443) A: Art. possession of squatters : mere tolerance. The rule of law does not allow the XPN: Except if it shown that he was aware of the flaws or mighty and privileged to take the law into their own hands to defects in the possession of his predecessor in interest. They have the capacity to acquire property. They should go to court and seek judicial vindication. 537. Action for ejectment – unlaqful detainer and one’s title or mode of acquisition can make him a possessor forcible entry. or by violence.R. and faith shall not benefit the heir except from the date of the 4. if the holder should refuse to deliver the thing. their legal representatives. in bad faith. must familiarity with persons invoke the aid of the competent court. Acts merely tolerated (permissive use) such as when decedent. (441a) Recognize and assert right Facultad de Derecho Civil 56 UNIVERSITY OF SANTO TOMAS .. not even to an waiver. do not affect possession. April 9. enforce their alleged rights. Acts merely tolerated. Acts executed clandestinely and without knowledge inheritance. transmissible from one person to another. No. (Heirs of Pedro Laurora v. but they need the assistance of their Q: What are the distinctions between abandonment and legal representatives in order to exercise the rights which tolerance? from the possession arise in their favor. only personal knowledge of the flaw in 2.retroactive effect 1. criminal action : trespassing. waiver. Sterling Q: What is the rationale behind the rule? Technopark III. the state. Art. does not death of the decedent. Use of force/intimidation or by violence as long as from date of death. He who believes that he has an action or a possessing. decedent. Stealth. Possession is deemed transmitted from the moment of death Q: What are the modes where possession can’t be acquired? of the decedent and without interruption: A: 1. In no case may possession be acquired through Abandonment Tolerance force or intimidation as long as there is a possessor who No longer interested in Allowed by owner by sense objects thereto.UST Faculty of Civil Law ___________________________ Accepted inheritanc is deemed possession without interruption from the death of the decedent Art. law into their own hands and summarily or forcibly eject the occupants therefrom. but the effects of possession in good faith shall duty or obligation but by the impulse of sense of not benefit him except from the date of the death of the neighborliness or good familiarity with persons. (444) possession? Minors may acquire possession provided they are A: The purpose is to prevent vacuum as regards possession represented. other legal heirs is in possession or if of the possessor which means that: none. respondents had no right to take the act of the decedent. Minors and incapacitated persons may acquire the possession of things. On who succeeds by hereditary title shall not suffer 3. 2. G. and if all these conditions are equal. Possession as a fact cannot be recognized at the same time in two different personalities except in the case of co. Possession as a fact cannot be recognized at the A: same time in two different personalities except in the cases 1. and in the mean time. Exercise self help proper proceedings. shall be placed in judicial deposit. the one who 3. the thing concept of owner is a positive indication of ownership. A provisional remedy granted at any stage of an action prior possession to judgment or final order. 539. 1968) decide the motion within thirty (30) days from the filing thereof. the forcible entry the proper writ to restore him in his thing shall be placed in judicial deposit pending possession. a writ of preliminary mandatory allows his neighbor or another person to do on the property. hidden or concealed) and unknown acts – no acquisitive prescription Q: What are the rights of every possessor? Art. the owner of the property action for forcible entry. The court shall (Sarona v. and property in the declarant. If there are 2 possessors. in the neighborliness or familiarity. Only the possession acquired and enjoyed in the concept of 2. if legal means should he be disturbed therein. Such possession is exercised by Facto every possessor – in GF and BF. This applies to actions for forcible entry owner to enter the land and construct a house. the dates of the possession are the same. Villegas. Every possessor has a right to be respected in his possession. A: It is a writ directing a person to do an act. sustained. It is an incidental remedy. if possession (forcible entry. (445) Possession contemplated by law is legal possession – thief Rules of Preference in case of Conflict over Possession de cannot exercise possession. To secure from a competent court in an action for presents a title. Present or actual possessor shall be preferred. PRELIMINARY PROHIBITORY INJUNCTION Q: What is a preliminary prohibitory injunction? CHAPTER 3 EFFECTS OF POSSESSION Facultad de Derecho Civil 57 UNIVERSITY OF SANTO TOMAS . Should a question arise regarding the fact 2. the one longer in possession. the one who Mere tax declarations do not vest or prove ownership of the presents a title. and determination of its possession or ownership through 4. consent of owner give back the land or to respect the possession. injunction to restore him in his possession. it is also undeniable that the 4. 538. (446a) Clandestine (secret. unlawful detainer) by there are two possessors. Yet. Q: What is a writ of preliminary mandatory injunction? Possession may be enjoyed by 2 or more possessors: co. 131 Phil 365. preferred. 538 settles only question of possession and such possession is different from ownership. of co-possession. If the dates of possession are the same. commanding or requiring the performance of a particular act.UST Faculty of Civil Law ___________________________ but temporarily allow to occupy Art. March 27. commanding to possession. PRELIMINARY MANDATORY INJUNCTION Art. the one longer in possession is owner can serve as a title for acquiring dominion. Its purpose is to prevent NOTE: As between lessee and one who was allowed by the further dispossession. If all of the above are equal. A: It is the act or practice of permitting or enduring something not wholly approved of. the present possessor shall be preferred.NOTES ON PROPERTY Kenneth & King Hizon (2A). the fact of possession shall payment of realty tax coupled with actual possession in the be judicially determined. Right to be respected in his possession. 1. and should he be disturbed therein he shall be Q: What do you mean by toleration? protected in or restored to said possession by the means established by the laws and the Rules of Court. A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint Acts merely tolerated are those which by reason of present a motion to secure from the competent court. lessee will be and unlawful detainer. Right to be protected in or restored to said of possession. 3. Preliminary injunction. In actual or constructive possession of the property. Thus. and nonetheless the grantor is not the owner. to prevent the defendant from committing Mere payment of real estate taxes does not prove ownership. Just title 3. public. The court shall decide the motion within thirty possession? (30) days from the filing thereof. Realty. (447) Article 1118. peaceful and uninterrupted. a.g. the latter may issue a writ of preliminary mandatory For legal presumption of ownership to arise. Possession must be in the concept of an owner. A: ordinary prescription). however he is not the owner there being no mode of acquiring ownership e. further acts of dispossession against the plaintiff. A possessor in the concept of owner has in his A possessor deprived of his possession through forcible from favor the legal presumption that he possesses with a just the filing of the complaint. Art. stealing – not a mode of Section 15. Accordingly. Uninterrupted possession.10 years for good faith (ordinary prescription) and 30 years in bad faith (extra. 541. IMPERFECT (Just title in prescription) – COLORABLE TITLE: although there is a mode of transferring ownership. within ten (10) days show or prove it. present a motion in the action for title and he cannot be obliged to show or prove it. it is where a person has the impression and belief that he is the owner of the RULES OF COURT property. the person must injunction to restore the plaintiff in possession if the court is be: (disputable) satisfied that the defendant's appeal is frivolous or dilatory or that the appeal of the plaintiff is prima facie meritorious. preliminary injunction. Possession of movables with real property. 4. possessor? 2. Acquisitive prescription This article applies to both real and personal property as the A possessor in the concept of an owner. he cannot be obliged to appeal. He must be in possession. 1. Only the possession acquired and enjoyed in the b. from the perfection of the appeal to the Regional Trial Court. The possession must be in the concept of an owner titulo Colorado. Continuous possession. Possession with just title. ownership. concept of owner can serve as a title for acquiring dominion. PUTATIVE TITLE (Titulo Putativo) Q: What are the reasons for the presumption? Facultad de Derecho Civil 58 UNIVERSITY OF SANTO TOMAS . (448a) forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his Q: State the legal presumption when it comes to possession. an order telling him to stop from taking the property. acquiring ownership over a property by acquisitive prescription: Presumptions in favor of the possessor 1. Presumption on the continuance of possession. 1. must be proved. — The court may grant acquiring ownership. right: Q: When is the presumption that a possessor has a just title i. — Upon motion of the plaintiff. even verbal acts which are 6.NOTES ON PROPERTY Kenneth & King Hizon (2A).UST Faculty of Civil Law ___________________________ A: It is an order preventing a person from doing an act. Personal property. and Art. 2. in accordance with the provisions of Rule 58 hereof. 540. PERFECT (Just title in possession) – true and valid applicable? title sufficient to transfer ownership. and legally sufficient to transmit ownership of property of real 7. Preliminary mandatory injunction in case of owner possesses just title. and not a mere holder. serve as title for law did not distinguish. Putative title is not just title. Titulo Verdadero y valido A: It only applies when 2 requisites are present: ii. Exclusive possession of common property. Uninterrupted possession of hereditary property.4 years in good faith and 8 years Q: What are the presumptions created by law in favor of the in case of bad faith. It can cover other acts. Possession has to be in the concept of an owner. Not limited to documents which are sufficient to transfer 5. 2. A: The law presumes that the possessor is in the concept of Section 20. 543. each one of the co-owners shall be deemed in possession of that portion A: allotted upon him from the time partition is made for the 1. NCC LEGAL/ CIVIL INTERRUPTION Q: What is just title? Interruption can include losing the property. Disputable presumption that the possessor has just title and he cannot be obliged to show it. Presumption that one is in good faith or that one is innocent of wrong. lessee can prove he 2. only corporeal things. (449) thing possessed in common shall be to the prejudice of all the co-possessors. the A: No. When the same is void for lack of legal solemnities. A: It is the service of a copy of a complaint upon the defendant together with the order of the court requiring the Article 1131. Can be rebutted by evidence e. For the purposes of prescription. default order may be issued. However. 2. which. Just title here means titulo Just title means titulo vardadero y valido (true and colorado (mere colorable In case of partition. A: Just tile is that which is legally sufficient to transfer ownership of the thing or the real right to which it relates and Q: What do you mean by judicial summons? may be proved orally by witnesses as well as through written documents or evidences. unless it is shown that the should be excluded. The possession of real property presumes that of the movables therein. Rules of Court shall apply.NOTES ON PROPERTY Kenneth & King Hizon (2A). Art. and the proceedings to lapse. Facultad de Derecho Civil 59 UNIVERSITY OF SANTO TOMAS . Plaintiff should desist from the complaint or should allow owns appliances in the leased apartment. just title must latter to answer within a certain period of time. and This is relevant in computation for purposes of acquisitive 3. in case of civil interruption. Inconvenience of carrying proof of ownership common shall be deemed to have exclusively possessed the around. Each one of the participants of a thing possessed in 2. Possessor should be absolved from the complaint. 1. it is never presumed. Can ripen into ownership through acquisitive prescription. for the entire period during which the co-possession lasted. Q: For purposes of prescription.g. and 3. entire period the co-possession lasted. failing in be proved. 3. It is produced by judicial summons. part which may be allotted to him upon the division thereof. Acquisitive Prescription Q: When will judicial summons not give rise to interruption? 1. is this prescription Interruption in the possession of the whole or a part of a applicable? thing possessed in common shall be to the prejudice of all the possessors.UST Faculty of Civil Law ___________________________ NOTE: The possession of movables found in an immovable is A: presumed. each co-possessor shall be deemed to valid title sufficient to title) have exclusively possessed the part which may be allotted to transfer ownership him for the entire period that the state of co-possession lasted. 2. 1. prescription subject to additional requirements under Art1118. Raises a disputable presumption of ownership. Only movables and immovables – doesn’t include rights. JUST TITLE IN PRESCRIPTION Q: When is there co-ownership? JUST TITLE IN POSSESSION JUST TITLE IN PRESCRIPTION A: When the subject matter is undivided and there are two or Presumed Must be proved more possessors. Art. Possession of real property presumes that movables found therein are possessed by occupying the real A: property (disputable presumption). so long as it is not shown or proved Any interruption in the possession of the whole or part of the that they should be excluded. 542. issued so that the court will acquire jurisdiction over the person of the defendant. Q: What are the effects of Possession in the Concept of Owner? Upon the partition of the property in common. (450a) JUST TITLE IN POSSESSION v. 544. possessor loses the right the net harvest. the date of receipt of payment is immaterial as when we speak of rents/ stocks since they are Owner and possessor shall have a right to a part of the net deemed to accrue daily. b. The owner of the land on which anything has been built. Yet he has a right to recover expenses for the production. tax). not applicable to civil fruits With regard to civil fruits. the possessor in good faith who for any reason whatever should XPN: Trees are being exploited for an industry = industrial refuse to accept this concession. The possessor in this case shall not be entitled to fruits. receipt of gathering or severing. through cultivation or labor. planted or sown in bad faith may demand the Facultad de Derecho Civil 60 UNIVERSITY OF SANTO TOMAS . the possessor shall have a growing fruits and he will not have any share in the harvest – right to a part of the expenses of cultivation. (example. (451) As to Pending fruits Possessor in GF is entitled to gathered fruits before he is legally interrupted. indemnified in any other manner. He is not entitled to reimbursement of expenses incurred Q: What is the reckoning point as to the time the fruits are but is entitled to recover necessary expenses. On the other hand. the reference point is the date of proportion to the time of their respective possession. If owner chooses not to pay for the expenses. With respect considered as having been received? to trees.000 rent per month. Possessor in Good Faith he must reimburse owner for fruits actually received. possession was th interrupted on the 11 day. and to a part of if possessor refuses the concession. 30. possession. give the GR: Rules are not applicable to trees (reason. accession possessor in good faith the right to finish the cultivation and industrial applies taking into consideration. loses what is built. gathering As to the fruits already received and preservation of the fruits (necessary expenses for preservation of the land or thing) upon the owner’s receipt of Possessor is entitled to fruits received by him before his reimbursement. A possessor in good faith is entitled to the fruits a. should he so desire. plants or sows in bad faith on XPN: Possessor in good faith becomes a possessor in bad the land of another. Natural and Industrial Fruits – from the time they are received before the possession is legally interrupted. The owner of the thing may. or wrongly. Example. possession is legally interrupted. *only for natural and industrial fruits. Article 449. If at the time the good faith ceases. he may allow Art. (452a) Possessor in Bad Faith GR: Fruits belong to the owner.000 rent possessor in good faith in that proportion. Also. both in proportion to the time of the to be indemnified in any other manner. XPN: Possessors have a right over the fruits (good faith or bad As to the fruits already received faith). possessor is entitled to Civil fruits are deemed to accrue daily and belong to the 10. with respect to harvest and each shall divide the expenses of cultivation in industrial and natural fruits. 545. good faith and gathering of the growing fruits. Natural and industrial fruits are considered received from the time they are gathered or severed. As to the pending fruits GR: Interruption of possession must be through legal means. shall lose the right to be fruits.NOTES ON PROPERTY Kenneth & King Hizon (2A). gathered / severed. of the expenses of cultivation and the net proceeds. Charges shall also be divided by the possessor and the owner The charges shall be divided on the same basis by the two in proportion to the time of their respective possessions possessors. A: Article 450. there should the possessor to finish the cultivation and gathering of be any natural or industrial fruits. as an indemnity for his part bad faith). planted or sown faith from knowledge that he possesses the thing improperly without right to indemnity. Civil Fruits – deemed to accrue daily.UST Faculty of Civil Law ___________________________ Art. rules on accession industrial apply. He who builds. These expenses are incurred to preserve the property without which it will physically Gross harvest – expenses = net harvest (In order to prevent deteriorate. 2. fruits received the fruits received in GF may retain 1 of Art. planted or sowed. possessor. and the sower the proper rent. possession b.UST Faculty of Civil Law ___________________________ demolition of the work.2) the person who Natural/ Are considered 1. but only the possessor in good faith may retain the thing until he has been reimbursed therefor. 546 and before the and those which the thing until he in Art. (453a) declared as lawful possessor. they Useful expenses shall be refunded only to the possessor in will only apply when there is net harvest/ proceeds. legal possession increase in value Facultad de Derecho Civil 61 UNIVERSITY OF SANTO TOMAS . in order to replace things in their former condition reeceived with at the expense of the person who built. But only possessor in GF will have the right of unjust enrichment) retention. but expenses Entitled to the Shall reimburse only the possessor mentioned in par. NOTE: Necessary expenses shall be refunded to possessors FORMULA: whether good or bad faith. or that the planting or sowing be 545) could have removed. pay damages amounting to a Article 451. In the cases of the two preceding articles. good faith with the same right of retention. The herein rules shall apply only natural/ industrial fruits still growing and not yet ripe for harvesting. Furthermore. 549) possessor.those which the paying the retain them (Art. The owner Note that. The net harvest shall be proportionately divided between Useful expenses shall only be refunded to possessor in GF. the luxurious expenses shall not be included. 544. the latter shall lose his right to be indemnified. 546. Gathered time they are and return the having the option gathered or value of: of refunding the covered and the a. spenders in accordance with length of possession. (Art. Pending Q: What if the expenses arise greater? Art.NOTES ON PROPERTY Kenneth & King Hizon (2A). assumption that one has been reason thereof.those already amount of the possessor in GF receivd expenses or of has the right to b. 544) (Art. Summary of rules Summary of rules EXPENSES POSSESSOR IN GF POSSESSOR IN BF Necessary this shall be Shall have a right KINDS OF FRUITS Possessor in GF Possessor in BF expenses refunded to every only to the (Art. may allow possessor to finish cultivation / gathering and if refused. par. 443 possession is the legitimate has been legally interrupted possession could reimbursed have received thereof Civil Are deemed to Not entitled Useful expenses Shall be refunded No right accrue daily and only to the whatsoever belong to the possessor in GF possessor in GF in with the same that proportion right of retention. the reasonable rent landowner is entitled to damages from the builder. the person who has defeated him in the possession having the option of The possessor shall have a right to a part of the expenses of refunding the amount of the expenses or of paying the cultivation and part of the net harvest both in proportion to increase in value which the thing may have acquired by the time of possession . Necessary expenses shall be refunded to every A: The present rules will not apply. planter for the term of or sower. Must has defeated him Industrial received from the account for them in the possession a. due care or or he may compel the builder or planter to pay the price of diligence the land. possessor whether in good faith or bad faith. provided further lawful possessor does not wish losing party to retain and pay value at the time he enters possession. and if his Q: A possessor in good faith shall not be liable for successor in the possession does not prefer to refund the deterioration or loss. suffers no injury injury and that the (445a) and the successor lawful possessor in possession does do not prefer to NOTE: Art. The expenses incurred in improvements for pure acquired by luxury or mere pleasure shall not be refunded to the reason thereof possessor in bad faith. What are the exceptions? amount expended. (n) recovers the possession exercises the option under paragraph 2 of the preceding article.NOTES ON PROPERTY Kenneth & King Hizon (2A). (n) NOTE: The cost of litigation will be shouldered by the defeated party Q: When may a possesssor in GF remove the useful improvements? Art. acted with negligence after judicial summons could have received. The costs of litigation over the property shall be good faith may remove them. unless the person who borne by every possessor. after the judicial summons. the possessor in GF the time he enters can remove as long as there’s no substantial damage to the into possession principal. However. but he may (457a) remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby. that which will reduce the value of the NOTE: Improvements caused by nature or time shall always property. and shall have a right only to the Facultad de Derecho Civil 62 UNIVERSITY OF SANTO TOMAS . 549. (456) improvements he introduced without damage. to the no damage. where he acted with fraudulent intent fruits received and those which the legitimate possessor 2. be refunded to the possessor in good faith. provided that the expenses refund but he may refund but he may thing suffers no injury thereby. even if caused by a fortuitous event. 548. A possessor in bad faith shall be liable for deterioration or Art. the possessor in BF shall reimburse fruits fraudulent act or received and those which the lawful possession could have negligence received and shall have a right only to the expenses mentioned in Art 546 and art 445. 551. antique A: Possessor in bad faith has no right to remove useful article improvements whether or not it will cause damage. and that the lawful remove the same remove the same possessor does not prefer to retain them by paying the if the principal if the thing suffers value they may have at the time he enters into possession. Expenses for pure luxury or mere pleasure shall not loss in every case. 552. substantial damage/ injury. the possessor in Art. unless Always liable deterioration loss is due to his Under Art 549. a possession in BF can remove provided Cost of litigation Generally. If the useful improvements can be removed without damage to the principal thing. Art.UST Faculty of Civil Law ___________________________ which the thing expenses mentioned in paragraph 1 of Article 546 and in may have Article 443. 548 refers to a possessor in good faith who not prefer to retain them by introduced improvements for pure luxury. 550. A possessor in good faith shall not be liable for the Q: Can luxury expenses be refunded? deterioration or loss of the thing possessed. Art. (454) A: Art. Loss or No liability. inure to the benefit of persons who is declared as the lawful possessor. refund the paying the value amount expended they may have at As for luxurious or ornamental expenses. but he may remove the objects for Luxurious It is not entitled to It is not entitled to which such expenses have been incurred. except in cases in which it is proved that he has acted with fraudulent A: Expenses for pure luxury shall not be refunded to the intent or negligence. 547. by time: flavor of wine. The possessor in bad faith shall reimburse the 1. Improvements caused by nature or time shall always insure to the benefit of the person who has A: Possessor in good faith may remove the useful succeeded in recovering possession. Q: How about a possessor in bad faith? Examples: alluvial deposits. A possessor may lose his possession: NOTE: In this case. a. (3) By the destruction or total loss of the thing. if the new possession has lasted longer than one A: A property is considered lost when it is destroyed year. (2) By an assignment made to another either by onerous or 3. (US v. both possession de facto and de jure are lost and no action for recovery will be allowed (1) By the abandonment of the thing. the obligation to reimburse held to have abandoned the same until at least he has some disappears. 555.by ABANDONMENT of the thing -voluntary renunciation of unknown or if known. Art. It is the intention to lose the thing. 553. Art. Thing perishes b.UST Faculty of Civil Law ___________________________ NOTE: A possessor in bad faith is always liable for A: Spes recuperandi (hope of recovery or recapture) is gone deterioration or loss during even by fortuitous event and the animus revertendi (intent to recover) is finally given up.the total transfer of ownership of a property by to the contrary.DESTRUCTION or TOTAL LOSS of the thing or because it gratuitous title. Q: What is the rule with respect to the assignor? Q: When is this principle relevant? A: Assignor must be in the concept of owner and has capacity A: It is relevant in cases involving acquisitive prescription to alienate. goes out of commerce. cannot be recovered. One who recovers possession shall not be obliged to pay for improvements which have ceased to exist at the Q: Who should make the abandonment? time he takes possession of the thing. gratuitous (donation) Q: What is the principle of continuous possession? Q: What is assignment? A: If a person is the present possessor of a property and it is A: Relinquishment of possession in favor of a definite or established that he had possessed it before. Q: What are the 2 kinds of loss? Q: When can you say that a property has been abandoned? A: Facultad de Derecho Civil 63 UNIVERSITY OF SANTO TOMAS . Owner of the property cannot be improvements no longer exist. or because it goes out of commerce. Goes out of commerce A: c. A: Only personal property may be abandoned. 8 Phil 500.ASSIGNMENT made to another either by gratuitous or also during the intermediate period. A present possessor who shows his possession at some previous time. is presumed to have held possession 2. knowledge of the loss of its possession or of the loss of the thing. that he was also in possession during the interval period. Onerously (sale) Principle of continuous possession b. does not apply to land . Disappears is such a way that its existence is 1. Q: A possessor may lose his possession in what instances? a. things are thrown into A: At the time the possession of the thing was taken the the sea upon the highway. subject to the provisions of Article 537. it cannot be recovered anymore.NOTES ON PROPERTY Kenneth & King Hizon (2A). as in the case of a shipwreck or a fire. a property or right by its owner or possessor. in the absence of proof onerous title. Q: When is there total loss? Q: May real property be abandoned? A: Although the property remains physically intact. it is presumed specified transferee. Laurente Rey. (458) A: Must be made by a possessor in the concept of an owner. But the real right of possession is not lost till after the physically such as when it got totally burned or dismantled to lapse of ten years. (460a) the extent that it becomes useless and unserviceable. Q: When is a property considered lost? (4) By the possession of another. Q: When will the person who recovers possession be not obliged to pay for improvements? NOTE: There is no real intention to abandon a property when. (459) the owner to another person. 1907) Art. 554. It cannot amount to loss of possession. the finder must deposit the movable with Art. 558. The mayor is bound to make a public mere holder to enjoy or keep it. one who has sale (owner must reimburse the price paid) lost any movable or has been unlawfully deprived thereof may recover it from the person in possession of the same. NOTE: General Rule: Owner may recover the thing without paying indemnity Art. Acts relating to possession. the finder must return b. Possession must be in the concept of an owner owner. Possessor acquired the thing by sale under statutory power of sale or under the order of a court of competent A: Juridical act which transfers ownership. Q: The owner who lost the thing or was unlawfully deprived If the possessor of a movable lost or which the owner has cannot recover in what instances? been unlawfully deprived. Where no bind or prejudice the owner. Physical loss . Juridical loss . Nevertheless. (462a) a. 557. The true owner cannot recover possession of movable Q: What does the law contemplate by the word “control”? acquired in good faith is equivalent to title. subsequent to finder does not deposit the thing.Possession is lost when prescription has set in A: 1. has acquired it in good faith at a public sale.existence is unknown or cannot be recovered Q: The general rule is possession of movables in good faith is 2. If unknown.UST Faculty of Civil Law ___________________________ 1. Possessor of a property belonging to another and who holds Q: What if the finder does not deposit the thing? it merely for the purpose of enjoying or keeping it. the same is not a valid mode of acquiring possession. do not announcement for 2 consecutive weeks. POSSESION OF ANOTHER. What are the requisites for this rule to by the government apply? 4. (463) price of thing found must be given to the finder). In such case. not a document jurisdiction Facultad de Derecho Civil 64 UNIVERSITY OF SANTO TOMAS . or ratifies them the finder (if owner claims. 559. unless he gave said holder owner appears after 6months. Possessor acquired the thing at the merchant’s store or fairs or markets Q: What is Title? 2. in any character. reward of 1/10 of the sum or subsequently. or transferred for purposes of prescription Q: What is then the duty of the finder? to the prejudice of third persons. The possession of movables is not deemed lost so Q: What is the principle of irrenvidicability? long as they remain under the control of the possessor. A: Juridical control or right that the movable remains in the Q: What is the exception to this rule? possessor’s patrimony A: Except when owner lost it or illegally deprives Art. except in accordance with the provisions of the Mortgage Law and the Land A: Registration laws. The possession of immovables and of real rights is not deemed lost. 556.goes out of commerce or expropriated equivalent to title. A: If finder or third person who acquired the thing the owner is not bound thereby.NOTES ON PROPERTY Kenneth & King Hizon (2A). owner may Owner can recover possession from subsequent possessor recover without paying indemnity. Principle of irrenvidicability Art. (461) in the possession of one who acquires and holds in good faith. (464a) 1. he may be penalized for the crime of theft. even though for the time being he may not know their A: It contemplates of a situation where personal property is whereabouts. If owner known. executed or agreed to the mayor of the city or municipality where the thing was by one who possesses a thing belonging to another as a found. The possession of movable property acquired in Exception: Possessor acquired the property through public good faith is equivalent to a title. the thing will be given to express authority to do such acts. the owner cannot obtain its return without A: reimbursing the price paid therefor. except if the owner expressly authorized the holder to do so or if he ratifies the acts of the holder. Movable property is acquired in good faith NOTE: If possession is only out of mere tolerance by the 2. had placed the property into the possession of another in any character. They are not subject to occupation unless there has been Requisites of a usfruct abandonment but may be acquired through acquisitive prescription (4years if good faith). possessors without need of indemnity. A: It is the right of a person (usufructuary). Wild – characterized by natural freedom. Essential. and Art. 3. they whereby he has the right to enjoy the property. 562. Possession was unlawfully or unjustly lost 2. unless the title constituting it or the law otherwise provides. unless the title constituting it or law provides otherwise. They are Usufruct in General possessed only while they are under one’s control. (467) A: 1. Q: What are the requisites of a usufruct? Note that in case of domestic animals. (465) USUFRUCT IN GENERAL Kinds of Animals Art. of another called the naked owner. It is the right to enjoy the property of another temporarily. Possessor was able to recover his possession by lawful A: Sale where a public notice is duly publicized in a means newspaper of general circulation informing the public about 3. shall be deemed for all purposes which may substance of such property.right to enjoy the property of another. Domesticated or tamed – formerly wild but which have the designated time and preserving its form and substance. Uninterrupted possession shall be beneficial to him the sale of thing and where anybody has the right to make a bid or an offer to buy. including the become res nullius. to have enjoyed it without the title constituting the usufruct or the law may interruption. been subdued and retained the habit of returning to the premises of the possessor or owner. It is accidental because redound to his benefit. Prescription A: Q: What is a public sale? 1. Note that in case of domesticated animals.UST Faculty of Civil Law ___________________________ 3. One who recovers. to enjoy the property of another (owner) with obligation to returning it at 2. with the obligation of returning it a designated time and preserving its form and substance. Once natural freedom is regained. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and Q: What are the kinds of animals? substance. fruits. Facultad de Derecho Civil 65 UNIVERSITY OF SANTO TOMAS . WHEN HABIT IS LOST. . shall be deemed for all purposes which may principle of negotiable instruments redound to his benefit. according to law.obligation of preserving the form and unjustly lost. possessor has 20 days counted from occupation by another to reclaim the Extent of usufruct animal/s. Possessor is a holder in due course of a negotiable Q: The general rule is that one who recovers possession document of title to goods or owner is barred by the unjustly lost. (466) provide otherwise. possession 2. What are the requisites for this principle to the seller’s title apply? 5. 561. Once they lose the It is a real right vested in a person called a usufructuary. habit of returning to the premises of the possessor. to have enjoyed it without 4. Art. Owner can recover them from present fruendi (right to the fruits). Domestic or tame – born or reared under the control and including both the jus utendi (right to use) and the jus care of man. 560. Accidental. as in the case of abnormal usufruct.USUFRUCT under one's control. they immediately regain Q: What is usufruct? their status of res nullius and may be acquired through occupation. Owner is barred by his own acts or neglect from denying interruption. A: ONLY POSSESSION iS LOST and NOT OWNESHIP. domesticated or tamed animals are considered domestic or tame if they retain the habit of CHAPTER 1 returning to the premises of the possessor. Wild animals are possessed only while they are Title VI. 1.NOTES ON PROPERTY Kenneth & King Hizon (2A). tangible or not. an innocent purchaser may acquire the usufruct to the prejudice of the Q: Is a usufruct in favor of an alien or foreigner valid? usufructuary. it remains temporary because there is a limit to its life. Duty to pay for annual charges. it is a real right whether registered or not. A: Ownership has for its attributed the right to enjoy (jus 2. Real right. commodatum. A: It means that the property must be used according to its According to Dean Pineda. and 2. It is valid because title is not vested in the usufructuary. A: He is a remainder man. it must be duly annotated at the purpose. then right to dispose Facultad de Derecho Civil 66 UNIVERSITY OF SANTO TOMAS . according to Dean Villanueva. the period. liens on fruits Purpose of property during usufruct. Example: Whether the usufruct is c. Last will. A: Those which may be present or absent depending on the b. Since usufruct and its incidents and conditions are so Once there is a stipulation such stipulation is an incidental. and jus abutendi). REAL RIGHT Q: What is the concurrent obligation of the usufructuary? It may be constituted on real or personal property. complicated. Q: What are the natural characteristics of usufruct? subject to the rights of usufructuary. Otherwise. or several. 1. and utendi.UST Faculty of Civil Law ___________________________ 3. Prevent impairment Essential characteristics Accidental characteristics Q: What are the requisites of a usufruct? Q: What are the accidental characteristics of usufruct? A: a. and Q: What is the rationale of the obligation to preserve the easements. Law. A: Yes. It is a real right because it attaches to the property itself and may be imposed upon whoever subsequently own the right Q: How is usufruct created? with respect to the property. A: Those which even if not stipulated are deemed attached to USUFRUCT DISTINGUISHED the usufruct because they are provided by law. Prescription For convenience it must be registered. taxes. Example: The obligation to preserve absent any stipulation to the contrary. Duty to make ordinary repairs. Yet. A: It is to preserve the form and substance of the property. Prevent abuse of property. A: It is created by: Besides a usufruct may be constituted either on immovable and movable properties and as such not all property are 1. registered. Filipinos are more inclined in entering into less complicated contracts such as lease. The purpose of a usufruct is to enjoy the benefits and derive Q: Who is a naked owner? advantages from the object as a consequence of normal use. Prevent extraordinary exploitation. the ownership of which is vested in another and such right may be enforced against the Q: What do you mean by preservation? whole world. Q: What are the other duties of the usufructuary? Temporary duration A: Even if constituted during the entire life of the usufructuary. what remains is his right to abuse. or 3. back of the title to bind third persons.NOTES ON PROPERTY Kenneth & King Hizon (2A). jus fruendi. Purpose is for the enjoyment of the use and fruits of pure or conditional. whether it be in favor of one the property. stipulation of the parties. consumable or not. Temporary in nature. substance and form? Q: Distinguish usufruct from ownership? A: 1. 2. NOTES ON PROPERTY Kenneth & King Hizon (2A). particular use. ordinary repairs. fruits unless obligation and there are improvements on the object otherwise courtesy of the debtor. It is real only when it Usufruct and Easement is over a real property and the USUFRUCT EASEMENT same is registered Application Applies both real Applies only to or when the lease and personal. 1670) and Forced Extinguishement Usually Not extinguished lease (Art. (468) right. last contracts and by constituted on the on a land held in will and way of exception land burdened by usufruct.created by law. Usufruct is constituted by law. Creation Must always be Bailor need not be Creation of Usufruct constituted by the owner as long as owner. except when it is 1.UST Faculty of Civil Law ___________________________ (jus diponendi) and the right to vindicate (jus vindicandi). private persons expressed in acts inter vivos or in a last will Nature Always a real Merely a personal and testament. collect may or may not mean that the collector owns what Nature of right Usufrcut is always Lease is generally was collected. can be enjoyed. or by law as in the easement but it prescription. only for exhibition. and by prescription. person. the other hand. The mere right to representative. 448). Extent Can be constituted Only non. right. easement. by the will of property. he has the legal Q: What are the different classifications of usufruct as to right to possess creation? the object. Facultad de Derecho Civil 67 UNIVERSITY OF SANTO TOMAS . Art. Payment of taxes Usufruct pays for Lessee does not annual charges. is more than 1 Extent All uses and fruits Limited to a year. testament. usufruct. Rights Usufructuary has Bailee has no As in Articles 1189 and 1190 of the NCC where there is a rights over the rights over the suspensive condition or a resolutory condition over an fruits. case of an implied can’t be new lease or tacita constituted in an reconduction (Art. a real right. Usufruct and Lease Q: Distinguish usufruct from the right to collect? USUFRUCT LEASE Creator Constituted only It need not be A: A usufruct granting the right to collect would entail that by owner or created by the what the usufructuary may collect belongs to him but the authorized owner. 563. Application Applies both to Applies only to real and personal personal. except urgent years if juridical repairs. contracts. extinguished by by the death of Execution of Usufructuary has Lessee has no duty the death of the the owner of the repairs the duty to make to pay for repairs usufructuary or 50 dominant estate. usufructuary does not own the property. a personal right. Legal usufruct. consumables. he will have the rights of a usufructuary. the lifetime of the or onerous. usufruct is limited to jus utendi and jus fruendi. On provided. and liens on the property the fruits of the unless agreed USUFRUCT COMMODATUM property during upon. real property. A: on consumables consumables and non. Cause May be gratuitous Always gratuitous. pay the taxes on Usufruct and commodatum taxes. Manner of May be created by Generally only by Constitution It may be Can be consituted creation law. one after another. There is only one degree of relationship between the XPN: transferor and the transferee. As to effectivity or extinguishment or term or 3. Q: Can the naked owner dispose of the property held under In case usufructaury is created by donation. but the rights must not be strictly personal or intransmissible. a. and 2. simultaneously or successively.NOTES ON PROPERTY Kenneth & King Hizon (2A). Usufruct may be constituted on the whole or a part suspensive (from a certain day) or resolutory (up to a of the fruits of the thing. Partial-if it covers only particular fruits generated. Universal. Kinds of usufruct 5. Over things-if it involves tangible property. As to number of beneficiaries. 863. and in every case from or to c. 869. Abnormal-no obligation to preserve because of the a. will apply. 869 should be applied: A: Art. As to comprehensiveness over the fruits. person thru continuous use of usufruct for period required by law. Normal.if there is a period which may be either Art. Example: In a coconut planattion only the leaves are covered to be used in the manufucture of brook 6. certain day). If he gives the usufruct to various persons successively Art. 863 and Art.acquired by a third condition. As to its extent over the object. As to the time of enjoymnet of the usufruct.UST Faculty of Civil Law ___________________________ Art. in favor of one more persons. By acts inter vivos such as contracts.one usufructuary. the very right burdened by it. Successive. Q: What form must be followed in constituting a usufruct? If the usufruct is testamentary Rules on Fidei Commisary substitution under Art. Simple. b.if it is subject to a condition which may a certain day. Pure-if there is no term or condition. Art. cannot be the subject matter of usufruct.will of the parties. and whole or par of the inheritance and to another the usufruct. b.if it involves intangible property as rights A: are. It may also be be either suspensive (from the beginning of a certain constituted on a right. With a term.obligation to preserve exists. b. An oral usufruct may even be least be conceived at the time of the death of the testator. and b. Multiple-if there are several usufructuaries which may be: 7. Mixed usufruct or prescription. As to subject matter. Particular a. Total-if it covers all the fruits derived. and nature of the thing. b. and b. constituted. purely or conditionally. In a last will and testament (mortis causa). 863 a. a. Over rights. 756 should usufruct? be applied: A: Yes. Q: What are the different kinds of usufruct? a. object.applies where the testator leaves to a person the 2. the time of the perfection of the donation. and b. Simultaneously-at the same time. As to preservation of the substance and form of the sticks not including the fruits.Both transferor and transferee must be alive or at GR: No form is required. provided it is not strictly personal or event) or resolutory (until the happpening of a intransmissible. 564. Conditional. 3. Conventional. (469) certain event). and A usufruct constituted over a right is of the same nature as b. a. provided that there is the consent of the naked owner Art. 756-All donees must be alive or at least be conceived at because the stipulation in the contract prevails. Facultad de Derecho Civil 68 UNIVERSITY OF SANTO TOMAS . a. thus the right to receive support 1. 4. agreement is not to be performed in one year. the provisions contained in the two following Chapters shall be observed. taking into consideration that a Q: What if there is conflict between what is provided in the stock dividend and cash dividend can only be declared out of will and the codal provisions regarding the right granted to a the profits of a corporation. 3. 566. he cannot extract from the property is involved the Statute of fraud applies property anything which is not classified as fruits under the where the value is P500 or higher and in case the law. If personal natural. Rights of possession and enjoyment of the property. in HIDDEN TREASURE default of such title. Lease of the property. (471) 2. If Those growing at the time the usufruct terminates. Whether in cash or stock are considered civil fruits which belong to the usufructuary. at the beginning of the usufruct. Natural or industrial fruits growing at the time the usufruct begins. The treasure therefore is not considered as a fruit.NOTES ON PROPERTY Kenneth & King Hizon (2A). 3. A: No. it is prohibited by law to declare dividends from capital The rights and obligations are those provided in contract or stocks. Art. whateevr is gathered or collected belongs to the 4. Art. a stranger. in default the provisions of the NCC. and other similar expenses incurred by RIGHTS OF THE USUFRUCTUARY the usufructuary. In cases of hidden treasure. the usufructuary is considered as Art. acquired either at the beginning or at the A: termination of the usufruct. Q: In general. 567. he shall be considered a stranger. such declaration is not an earning because it provision of the will. Rule on ownership of natural and industrial fruits 2. he shall be entitled to ½ share (as a to the owner. for seed. is not declared out of the profits of a corporation. belong the usufructuary found it. If usufruct is created by sale of for any valuable consideration. belong to the usufructuary. usufructuary? DIVIDENDS A: The title constituting the usufruct. Sale or alteration of usufructuary rights. usufruct? Q: If dividends are declared from “capital stocks” are they A: The former will prevail unless the disposition contradicts fruits that are covered by a usufruct? the mandatory provisions of the NCC. if a third person found it. the naked owner is entitled to ½ share. from the proceeds of the growing fruits. or in case it is deficient. The rights and obligations of the usufructuary shall be those provided in the title constituting the usufruct. the ordinary expenses of CHAPTER 2 cultivation. However. In the preceding cases. The usufructuary shall be entitled to all the natural. stranger). land or tenement. usufructuary during the usufruct. (472) 1. A usufruct by donation or by will must apply with the formalities of a donation or will. has no obligation to refund to the owner any expenses incurred. Besides. civil. the Statutes of Fraud always applies Usufructuary is entitled or has a right to all kinds of fruits: in case of Real property is involved. the usufructuary. what are the rights of a usufructuary? The provisions of this article shall not prejudice the rights of third persons. Hence. it is the naked owner who is entitled to the share. industrial and civil fruits of the property in usufruct. Yet. Facultad de Derecho Civil 69 UNIVERSITY OF SANTO TOMAS . Generally. he is considered as a (470) stranger. 565. GR: In cases of hidden treasure.UST Faculty of Civil Law ___________________________ 1. Q: What primarily governs the rights and obligations of the XPN: If he is the finder. A usufruct over real property must be registered to With respect to hidden treasure which may be found on the bind their persons. industrial. Rights over the fruits. but the owner shall be obliged to reimburse at the termination of the usufruct. it seems enterprise. (473) This rule applies whether payment is in money. they belong to the usufructuary in proportion to the time the usufruct may last. Note: If the period of lease is longer than the period of 2. A: Civil fruits are deemed to accrue daily. If trees. (Art. lease will terminate upon termination of usufruct. whether in money or in persons. the usufructuary cannot lease or alienate the usufructuary. 568. (475) Art. plants. Sen. Tolentino). 443. the date of the distribution of which is not fixed. However.belong to Accordingly. Art. 569. and belong to the usufructuary in proportion to the time the usufruct Note: If near the time of termination fruits are already may last. Civil fruits are deemed to accrue daily. 1. Whenever a usufruct is constituted on the right to Thus. 545 is used to In either case they shall be distributed as civil fruits. Fruits growing to the termination of usufruct. consent is only required if it is owner has already taken into consideration value of longer than the usufruct. In other words. in Q: May the usufructuary lease the property held by him? interest on bonds or securities payable to bearer. the expenses and charges Whenever it consists in the enjoyment of benefits accruing incurred thereof shall be pro-rated between the planter and from a participation in any industrial or commercial the usufructuary (Art. end. Right to eject the tenant if he violates the lease The benefits shall be considered as civil fruits and shall be contract. distributed. and b. Q: What if the period of lease I longer than the period of A problem by Justice Paras usufruct? Facultad de Derecho Civil 70 UNIVERSITY OF SANTO TOMAS . participation in any industrial or commercial enterprise If he leases the property he has the: Each payment shall be considered as the proceeds or the fruits of such right. Right of Innocent Third persons Art. 570. fruits in fixing the price/ cause for the usufruct. Also. acquired either at the beginning or at the fruits. Dean Pineda). in fruits. A: Usufructuary may lease only if the title constituting the Usufruct in the enjoyment of benefits accruing from a usufruct does not prohibit the usufructuary from leasing. and determine who are entitled to the fruits and Art 443 is use to shall be applied in the manner prescribed in the preceding determine who should be obliged to pay the charges. Fruits growing at the beginning of usufruct. he or his heirs and Each payment shall be considered as the proceeds or the successors shall receive only the proportionate share of the fruits of such right. 443). each payment due shall be considered as the proceeds or fruits of such right. that this article should apply (Art. and the usufruct should expire before the termination of the lease.belong to usufruct. If the usufructuary has leased the lands or Usufruct on the right to receive rents or periodical pension tenements given in usufruct. thus Article shall not prejudice the rights of third receive a rent or periodical pension. but were not gathered due to the malice and bad faith of the owner before the usufruct Q: State the rule on civil fruits. or in the interest on bonds or securities payable to termination of the usufruct. rent that must be paid by the lessee. the fruits nevertheless shall pertain to the usufructuary by applying the general principles of fairness. the usufructuary of his heirs and successors shall the owner but he is bound to reimburse the usufructuary receive only the rents up to the end of the usufruct while the the ordinary cultivation expenses (including those rentals for the rest of the duration of the lease shall pertain pertaining to seeds) (Art. bearer. such benefits shall have the same character. Right to choose the tenant. the reimbursement shall be taken from the proceeds of the growing fruits. usufructuary has the choice as to owner the expenses of cultivation and production as the who will rent the property. who is not bound to refund to the beyond such period. 545. 545) out of the fruits received to the owner. (474) mature and ready for gathering. Note: According to Judge Quiambao. article. or crops had been planted by innocent third person or possessor in good faith. a. Art.UST Faculty of Civil Law ___________________________ Rights of usufructuary to pending natural and industrial fruits A: If the period of lease is longer than the period of usufruct.NOTES ON PROPERTY Kenneth & King Hizon (2A). the lease should terminate too. all the benefits inherent therein. once the usufruct terminates. without consent of owner. However. pledge or mortgage it. 568) even without the owner’s consent (Art. saving leases of rural lands. Q: How should the lease last? GR: Usufructuary shall enjoy all benefits inherent in the A: General Rule: the lease executed by the usufructuary property as the essence of usufruct is the full enjoyment of should terminate at the end of the usufruct or earlier.NOTES ON PROPERTY Kenneth & King Hizon (2A). Except: in case of rural lands where the lease continues for Art. usufruct. all profits during that time must go to B. Suppose. Cannot sell future crops (growing crops at the th 8 year-10 M th termination of the usufruct belong to the owner) 10 year. It is indeed unfair a. may alienate. unless there is a contrary 10 years (though it lasted only for 5 years). in the absence of contrary stipulation. (480) period of lease is beyond the period. and the profits came only in the next A: Naked owner can bring action against usurper of the 5 years. Q: What are the limitations to usufructuary rights? however B died at the end of 5 years. usufructuary can only do so if authorized. it is fairer to give stipulation. even by a gratuitous title. The usufructuary may personally enjoy the thing in the remainder of the Agricultural year. mortgage the thing itself. and the following were the profits of the factory: A: 1. the naked owner or the usufructuary? The rule is so similar if no profits were realized during the first 5 years and was only 7. 580) the increase which the thing in usufruct may acquire through but not being the owner. or alienate his right of usufruct. when it is the dominant estate like easement of a right of way. as well as the servitudes established in favor of the property even by gratuitous title (Art. the servitudes established in its favor. 2. Cannot sell. pledge or mortgage because he is not the nd 2 year-30 M owner (the thing/ prop itself) rd 3 year-50 M 2.he. At the Limitations to usufructuary rights option of the owner. not civil fruits. and. lease the thing for a Q: How should the profits be divided? period longer than the term of usufruct A: It is unfair to give the heir of the usufructuary 80 M for the NOTE: The usufructuary may possess and enjoy the thing in nd rd 2 and 3 year profits and only 30 million to the naked usufruct. pledge or accession. Cannot. or because business is expected to have ist ups and downs.He may lease it The right of the usufructuary over the property extends to (Art. being the owner Note however that the naked owner still owns the accession of the right itself. but all the contracts he may enter Q: What happens when the period is beyond the period of into as such usufructuary shall terminate upon the usufruct? expiration of the usufruct. jus fruendi (fruits). Facultad de Derecho Civil 71 UNIVERSITY OF SANTO TOMAS . If this were so. lease it to another. The usufructuary shall have the right to enjoy any Aspects of usufruct increase which the thing in usufruct may acquire through accession. he cannot alinate.UST Faculty of Civil Law ___________________________ A gave B in usufruct the profits of a certain factory for 10 years. With respect to the thing in usufruct. Art. we would be applying the rule for industrial or natural fruits. Q: Who should bring action against a usurper. considering that the usufruct was supposed to last for b. in Q: What are the 2 aspects of usufruct? general. half of the total profits to the heirs of the usufructaury and to the naked owner. either owner. The The rules are subject to stipulation of the parties. which shall be considered as subsisting during the agricultural A: The usufructuary may enter into a contract where the year. property.20 M 3. (479) Extensions of the property in usufruct A: 1. it is him who has the cause of action. 572). Personally. Thus. 572. 571. Through another. With respect to the right of usufruct. jus utendi (use). He is liable for damage suffered by the thing by reason of owner of the property must respect the right. or pay their current absent any contrary stipulation. The usufructuary is not responsible for deterioration due to wear and tear nor is he required to make any repairs A: No. off against the improvements he may have made on the property. pay current price. cannot be used without being consumed. he must return the same quantity and quality or NOTE: Alienation of the usufructuary rights does not involve b. The c. Alienation of rights of usufructuary d. When the usufruct terminates. Q: What is the nature of the usufructuary rights? NOTE: But if deterioration is due to fraud or negligence. Whenever the usufruct includes things which property itself. If there is no appraisal: a. the title of the prperty this makes the lease a real right. 590). gradually deteriorate through A: Yes. He is not obliged to return them at the termination Q: Can you compel the naked owner to respect the lease except in their condition at the time. upon termination? b. In A: Sale is void since the seller is not the owner. if the lease was registered or annotated in to restore it. The subject is equivalent wear and tear. the stipulations will prevail.UST Faculty of Civil Law ___________________________ a. Provision of NCC Usufruct over non-consumable things which gradually deteriorate Q: In case of conflict. the transferee has no more right to the property. He does not answer for the deterioration due to fortuitous event. A: Those which could not be enjoyed without being consumed.NOTES ON PROPERTY Kenneth & King Hizon (2A). Title governing it/ stipulations or negligence. (481) 2. the usufructuary shall have the right to make use of them under the Q: What happens when the property itself is sold? obligation of paying their appraised value at the termination of the usufruct. Separate from the property usfructuary is liable. This is considered as Imperfect/ Abnormal Usufruct. use thereof in accordance with the purpose for which they are intended. provision will only apply in default of provision or stipulations are contrary to law. Since there is case they were not appraised. (482) NOTE: There should be a stipulation of the parties allowing Q: What is a consumable property? the usufructuary to alienate such property then the same is valid. Absolutely owned by the usufruct may dispose encumber the usufruct so long as it is not on the Art. price at the time the usufruct ceases. he shall have the right to a violation of the usufruct any securities may be cancelled return at the same quantity and quality. Q: Can money be the subject of usufruct? Art. mortgaged land? The usufructuary must pay appraised vaule if they were A: Yes. however. but he shall be obliged to indemnify the owner for any A: deterioration they may have suffered by reason of his fraud 1. bebt is not paid and the mortgage is not for the purpose of limiting the use of the fruits. without being consumed. In addition. the A: It is treated as property rights. the usufructuary shall have the right to make sum or value not the thing itself. Whenever the usufruct includes things which. what shall govern? The usufruct has the right to use in accordance withb the A: In case of conflict. and shall not be obliged to return them at the Q: What will govern the parties? termination of the usufruct except in their condition at that time. the property itself. the purpose they intended. damage caused by the transferee (Art. this is because the mortgage remains inactive until the appraised when delivered. money can be the subject. to which it is attached. hence could not be returned because form and Q: Can you constitute a usufruct on an encumbered or substance are not preserved. Facultad de Derecho Civil 72 UNIVERSITY OF SANTO TOMAS . 574. if they were appraised when delivered. The rent after his fraud or negligence although such liability may be set- the termination accrues to the owner. usufructuary may also be liable to the naked owner for the Quasi-usufruct is akin to a mutuum or simple loan. 573. The usufructuary of an action to recover real purposes. and even of those cut off for the work. naked owner the usufructuary may do such ordinary cutting or felling as the owner was in the habit of doing. Usufruct of an action to recover property he may do so in accordance with the custom of the place. has the replacing them with young trees or new plants. such manner as not to prejudice the preservation of the land. under the obligation to replace them with new plants. right to bring the action and to oblige the owner thereof to give him the authority for this purpose and to furnish him This article cannot apply when the trees are not fruit bearing whatever proof he may have. The usufructuary of woodland may enjoy all the owner. Because of the obligation to preserve. as to the manner. if the purpose of the forest products. fallen or uprooted trunks property. and in default of this. However. (483a) Inoperative Usufruct Special usufruct on fruit-bearing trees and shrub Because of thee Regalian Doctrine. 577. or any movable property. If in consequence of a calamity or extraordinary event. but he shall have no right to be grow. and demand that the latter usufruct over the property. remove such improvements. (486) Q: What are shrubs? Impractical Usufruct A: They are woody perennial plants smaller than trees usually having permanent stems branching from the ground. usufructuary because he is a proper party in interest in case the usufructuary is obliged to make the replacement. only the State may constitute a usufruct over the woodlands. usufruct shall be limited to the fruits. The Philippine legal system is replete with other modes of prosecuting cases in behalf of the real party in interest. The usufructuary of fruit-bearing trees and shrubs and in such case shall first inform the owner of the necessity may make use of the dead trunks. Ownership still belongs to the would be too burdensome to replace them. 575. There no need to include the name of the naked Art. he may file in the benefits which it may produce according to its nature. the usufructuary A timber license is generally required if one desires to gather cannot cut off the trees. the trees or shrubs shall have disappeared in such If the usufructuary recovered the property he does not considerable number that it would not be possible or it become the owner thereof. 579. provided that there The usufructuary may use dead trunks and those cut-off or was a law allowing such usufruct (Declaration of re- uprooted by accident.NOTES ON PROPERTY Kenneth & King Hizon (2A). Art. 578. Art. He may. (487) paragraphs. (485) or uprooted by accident. Hence. provided he does not alter thinnings in order that the remaining trees may properly its form or substance. however. indemnified therefor. remove them and clear the land. he may cut them off subject to the obligation of property or a real right. The usufructuary has the right to bring the action and oblige the owner to give him authority to file action for the purpose In any case the felling or cutting of trees shall be made in and furnish him proof (Special power of attorney). amount and season. usufruct as appearing in the title establishing it is precisely to make use of its branches and trunks of the trees for special Art. Nonetheless. name of naked owner or usufructuary. (484a) The action may be prosecuted in the name of the If the object of the replacemet is only slightly burdensome. an action to recover land may be filed by usufructuary with authority of If the woodland is a copse or consists of timber for building. the naked owner. the dominion remaining with the owner. in all other cases. The usufructuary therefore is entitled to fruits and at the disposal of the owner. Art. the action is for ejectment as the only issue in such case is possession. the usufructuary may make the necessary pleasure as he may deem proper. If in consequence of the and if the object of the usufruct is not limited to the fruits of enforcement of the action he acquires the thing claimed. the such trees. The usufructuary may make on the property held in usufruct such useful improvements or expenses for mere In nurseries. 576.UST Faculty of Civil Law ___________________________ it be to restore or improve some of the things in usufruct. the usufructuary cannot cut down trees unless Facultad de Derecho Civil 73 UNIVERSITY OF SANTO TOMAS . Usufruct regains only his usufruct over the usufructuary may leave the dead. which include force majeure and fo classification). should it be possible to do so without With the exception of the provisions of the preceding damage to the property. even against the will of owner.NOTES ON PROPERTY Kenneth & King Hizon (2A). Improvements were made. There is no indemnity for improvements. same. the damage he had caused to the property. in the absence of contrary stipulation (owner not required to pay Improvements may be registered for the protection of the the amount). there is the naked owner. Unless there is an express prohibition. he is not entitled to indemnity for expenses he had stipulation. 3. If he has chosen not to remove he no refund as to the excess. that are normal wear and not alter the form thru the fault of the usufructuary. Damage to property Rules concerning constructions and improvement 1. 580. difference will be paid by usufructuary as indemnity. Damage>value of the improvements= usufructuary liable for the difference. an innocent purchaser for value of the property is not bound to respect the right. if Value of damage exceeds value of improvement. or Q: What are the requisites for set-off? he can avail of the set-off provision Facultad de Derecho Civil 74 UNIVERSITY OF SANTO TOMAS . it is necessary that the usufructuary should inform the usufructuary reimbursement reimbursement owner of his desire to set off. Intention to remove. The usufructuary may set off the improvements he A: may have made on the property against any damage to the 1.UST Faculty of Civil Law ___________________________ Art. Yet. and Q: Is the usufructuary entitled to any indemnification? 2. Damage<value of the improvement=difference accrues to the owner absent any contrary A: No. will be done on the property. if it will cause Rules on expenses no damage. difference as indemnity. incurred in making improvement. He may however set- off the value of the improvements against the amount of If Value of improvement is greater than damage caused. Formula USEFUL OF LUXURIOUS IMPROVEMENTS 1. usufructuary is not NECESSARY EXTRA-ORDINARY USEFUL & entitled to refund. EXPENSES EXPENSES LUXURIOUS EXPENSES Right to set-off improvements For the normal Expenses due to The usufructuary wear and tear of fortuitous events can make them This presupposes that the improvements have increased the the property and and accidents. the usufructuary Q: What if the damage exceeds the value of the may construct and make improvements on the property improvements? as he may deem proper. (488) 2. cannot be compelled to remove them. and 3. Indemnity: No right to be indemnified if the Damage to property improvements cannot be removed. not provided he does value of the property and damage to the same was caused those. Limitation: provided he does not alter its form and A: In such case. and 4. the usufructuary shall be liable for the substance. He may remove improvements. 2. Removal: usufructuary may generally remove provided no injury is made on the principal even against the will of But if the improvements are more than the damage. indispensable for tear and necessary of the property its preservation for the thing’s Q: Does the law require notice to the owner? preservation Borne by the With right of He cannot seel A: Yes. usufructuary If the improvements could be removed without damage to If the right of the usufructuary to remove improvements is property. Yet. not registered. Note: Registration shall be done in the registration proceedings of the land in usufruct and not independently. he must establish that the improvements have them if no damage introduced increased in the value of the property. parties may agree to settle the difference. if the improvements cannot be removed without causing damage to the property. without right of from the owner reimbursement but he can remove Also. excess will not be refunded to the usufructuary. Cannot alter or change the form or substance Q: Is the use of a co-owned property subject of a usufruct 2. usufruct such rights pertaining naked owner the usufruct of the part allotted to the co-owner shall improvements or to the co-owner belong to the usufructuary. When duly registered on the title or is known to a third person. To enjoy any bring the action property may A: Yes. To make on the property. To be thereof with respect to the administration and the it to another common indemnified for d. the usufructuary has no authority to sell or alienate any real right over the undivided property because such is an him. To be reimbursed succession and the for taxes on the c. 582. 1. To be reimbursed legacies must be respected until they are legally fruits of the mortgage the for indispensable extinguished. In a usufruct to equal to the subject of usufruct? accidentally finds recover property increase in value on the property or a real right to which the b. To set-off the property 1. To receive the a. To personally necessary proof capital advanced Art.owner usufructs his property: improvements and to the provided no collection of a. acquire thru proper authority b.NOTES ON PROPERTY Kenneth & King Hizon (2A). unless authorized by all the co- owners. (489) Q: May a usufructuary sell the property? Q: The rule provides that the naked owner is not precluded from selling the property because right to dispose rests in A: No. the naked owner also has the right to construct any increase which and to oblige the have acquired by works. Will assume all rights of said owner with respect damage is caused fruits or interests to the property from the to: e. A: 1. there are restrictions. to damages caused collection of fruits or interest. the law provides that fruits itself damages usufruct imposed and placed as burdens on devises or a. The owner of property the usufruct of which is held by another. 590. In a usufruct of by him common shall exercise all the rights pertaining to the owner usufruct or lease part of a c. collection of fruits or interests he refuses to b. (490) expenses he may with respect to deem proper and the to remove the administration A Co. Does not need the consent of other co-owners when he intends to put up usufruct on his share A: It belongs to the usufructuary Q: May a usufructuary participate in partition of property? Art. property which was allotted to the co-owner who constituted the usufruct Q: Who has the option to remove or set-off? c. Under the law on succession. 581. To alienate or a. If property has been partitioned. he cannot usufructuary shall continue on that part of the be compelled.UST Faculty of Civil Law ___________________________ of Art. what are these? exercise of act of ownership. he is not creditor or assignee to the usufructuary. the latter is put to notice and he is bound to Classification of rights of the usufructuary respect it As to the things and its As to the usufruct As to advances and 2. the usufructuary cannot exclude the co-owners. Should the co-ownership property in exercise all the to him by the cease by reason of the division of the thing held in common. administration and improvements he Facultad de Derecho Civil 75 UNIVERSITY OF SANTO TOMAS . may alienate it. the remove. make new improvements or plantings provided that the thing in owner thereof to reason of such the substance of the property is not altered and the usufruct may give him the repairs usufructuary is not prejudiced. The usufructuary of a part of a thing held in enjoy the thing in c. But if 2. Do anything which will prejudice the usufructuary exclusively reserved to the usufructuary where the usufruct is constituted by only one of the co-owners? When usufruct binds third persons A: No. property in right of usufruct extra-ordinary usufruct and half except parental repairs made by of the hidden usufruct him in an amount Q: May the naked owner construct anything on the property treasure he b. However. except Q: When will the usufruct bind third persons? the co-owner who gave him the usufruct. or do anything thereon which may be prejudicial property owned in common. but he cannot alter its form or A: Usufructuary has no right to participate in the partition of substance. The usufruct also covers only the portio of the fruits accruing to the co-owner A: who constituted the usufruct. Before the During the Upon termination Inventory usufruct usufruct of usufruct commences Q: What are the requirements for the inventory? Arts. 603-612 A: 1. Inventory of all the property (movables and immovables) inventory? containing their appraised value and description of condition immovables (so that the form of which it A: Absence of owner during inventory will not invalidate the should be returned is determined) usufruct. an inventory of all the property. Condition of immovables must be described 3. but may agree on some other arrangement (1) To make. 583-587 Arts. which shall Q: When is Inventory is not required: contain an appraisal of the movables and a description of the condition of the immovables. binding himself to fulfill the obligations 1. Quasi-usufruct public instrument. No one will be injured 3. except in cases of: except when real property wherein the inventory must be in a. before entering upon the enjoyment of the property. 2. Facultad de Derecho Civil 76 UNIVERSITY OF SANTO TOMAS . after notice to the owner or his legitimate representative. His absence is a waiver for corrections. To retain the Q: What is the requirement if the property is movable? thing until he is reimbursed for advances for A: An obligation on the part of the usufructuary to make an extra-ordinary appraisal of the value of the movables expenses and taxes on the Q: How about for immovables? capital A: To make a technical description of its condition and an Classification of the obligations of the usufructuary appraisal of the movables therein.UST Faculty of Civil Law ___________________________ may have made b. Give security as an assurance that he will fulfill all his obligation as usufructuary Q: What if there are mistakes in inventory and owner is absent.NOTES ON PROPERTY Kenneth & King Hizon (2A). you can still make the corrections.580) f. Usufruct over rights Q: What are the obligations of the usufructuary? 4. Movables must be appraised CHAPTER 3 OBLIGATIONS OF THE USUFRUCTUARY Q: Who shall shoulder expenses for preparation of the inventory? Art. but must prove that possession and enjoyment of property there is error. The purpose is to enable him to correct errors in the inventory if he desires. The usufructuary. 583. (491) 2. is obliged: A: Expenses for preparation of the inventory is borne by usufructuary. The owner or representative must be previously notified. Agreement of both parties A: Q: What is the effect of the absence of owner during the 1. Waived imposed upon him in accordance with this Chapter. is it a waiver? NOTE: The requirements are not conditions precedent. 588-602 Arts. Abnormal usufruct where the appraisal will be on the property important for determining the liability of the against any damaage to the usufructuary same (Art. 2. it was given as usufruct. but is necessary before the usufructuary enters upon the A: No. not refuted from making corrections Q: What is the purpose of these requirements? Q: What should be the form of the inventory? A: To ensure the return of the property in the condition that A: No particular form of inventory is provided for by law. A: Inventory is not allowed when: (2) To give security. Cannot enter into the possession of property and cannot necessary before the usufructuary enters upon the manage the property possession and enjoyment of property-Sanchez Roman. mortgage of property. but is 6. he cannot enter into the possession of But according to Manresa. In the meantime. if he so prefers. for such administration. after deducting the under his administration sums which may be agreed upon or judicially allowed him 2. 584. the property placed under administration. that the public bonds. The interest on the proceeds of the sale of the movables and that on public securities and bonds.UST Faculty of Civil Law ___________________________ converted into registered certificates or deposited in a Q: What is the effect of failure to make inventory? bank or public institution and that the capital or sums in cash and proceeds of movable property be invested in A: Failure to make inventory will create the presumption that safe securities the usufruct is receiving the thing in good condition. cases in which he is bound to give it. be converted into registered certificates or deposited in a bank or public institution. personal. The usufructuary. cash usufructuary the income or fruits of property after money deducting the expenses of administration 5. after establishment of usufruct which requires giving of security waives such requirement When donor reserved to himself the usufruct of the property 3. Parental usufruct still exists but only apples to enjoyment and use of minor child’s property. the owner may. Naked owner may retain the property in usufruct if he so desired with the obligation to turn over to the A: Pledge. that the movables be sold. except when the 1. as long as it is sufficient. Express stipulation that no security will be required parents contract a second marriage. 2 of the preceding article Q: When is the giving of security not required? shall not apply to the donor who has reserved the usufruct of the property donated. when no one will be injured thereby. Naked owner. until the when it is required? usufructuary gives security or is excused from so doing. Art. and that the capital or sums in Parental usufruct cash and the proceeds of the sale of the movable property be invested in safe securities. Naked owner may demand that immovables be placed usufructuary the net proceeds thereof. public bond. the usufruct is extinguished by property in usufruct failure to give security. 7. Usufruct is based on caucion juratoria inventory or of giving security. instruments of credit payable to order or to bearer A: No form is required by law. Usufructuary cannot collect credits that had matured NOTE: The requirements are not conditions precedent. Demand that the movables be sold . (492a) 2. the usufructuary. surety bond. the owner may demand that the immovables be placed under Q: What should be the form of security? administration. Usufruct is not extinguished by failure to give security. whatever may be the title of the 5. 586. (493) Q: What is the purpose of security? Art. In case of parental usufructuary usufruct. Q: What are the consequences of failure to give security Furthermore. may be excused from the obligation of making an 6. Nobody will be injured for lack of security donated. Usufructuary is entitled to legal interests (or net profits) on the proceeds of the sale of movables and on the Security proceeds of property placed under the management of naked owner Q: What can become a security? 4. apply rule in guardianship Art 225. Donor has reserved to himself the usufructuary of the donor to put up a security bond. it is an act of ingratitude for the donee to require 4. and the proceeds of But for income in fruits. property donated it is an act of ingratitude for the done to require the donor to put up a security of bond Art. 3. shall belong to 226 FC in relation to Art 235. subject to the obligation to deliver to the 1. retain in his possession the property in usufruct as A: administrator. 585.NOTES ON PROPERTY Kenneth & King Hizon (2A). Should the usufructuary fail to give security in the A: To ensure faithful compliance. or to the parents who are A: usufructuaries of their children's property. The provisions of No. (494) instruments of credit payable to order or to bearer be Facultad de Derecho Civil 77 UNIVERSITY OF SANTO TOMAS . allowed to live in a house included in the usufruct. after due consideration of the facts Art. but he cannot afford. the court may grant this petition. he may demand their delivery to him day when usufructuary should have commenced receiving upon his giving security for the payment of the legal interest them on their appraised value. instruments of creditt payable to order mean that he does not need them. Movables be sold 5. usufructuary shall If the owner does not wish that certain articles be sold have a right to all the proceeds and benefits as of the date he because of their artistic worth or because they have a was supposed to have received them. deducting the expenses of administration. implements. which are necessary for its normal securities enjoyment. or to bearer be converted into registered certificates or deposited in a bank or public institution To enter into the possession of the property. if he so desires with the obligatiob to turn-over to the A: He cannot lease the property. NOTE: The interest on the proceeds of the sale of the movables and that on public securities and bonds. he shall have a right to all the proceeds and benefits from the day on which. He cannot alienate or lease the property for this will c. Proper court petition required? 2. may the naked owner Q: In case of causion juratoria. 588. Immovables be placed under his administration 4. the delivery of the subject to his giving a security bond for the payment of legal furniture necessary for his use. he can still matured. It applies only if he is required belong to the usufructuary. Approval of the court a. it is a potestative right. Sworn promise b. and that he and his family be interest based on appraised value. After the security has been given by the of the case. usufructuary. NOTE: Delivery of property does not amount to waiver to ask NOTE: The usufructuary cannot collect credits that had for security afterwards . because it means he does usufructuary the income of fruits of the property after not need it. 587. tools or house included in the usufruct A: The owner may demand that the: 3. The usufructuary shall take care of the things Promise under oath or CAUSION JURATORIA given in usufruct as a good father of a family.UST Faculty of Civil Law ___________________________ Consequence of failure to give security when it is required A: Q: What is the effect of failure to give security when it is 1. (496) for an industry or vocation in which he is engaged. If owner does not want to sell certain artistic article with Art. of the movable property be invested in safe including accessories. he should have commenced to implements. by virtue of a promise under oath. Capital or sums in cash and the proceeds of the sale must file a petition in court seeking the delivery of property. 587 will not apply when the usufructuary is exempted or proceeds of the property placed under administration shall excused from giving security. When appropriate security has been given. Public bonds. usufructuary d. If the usufructuary who has not given security sentimental value. and the Art. (495) Art. Necessity for the delivery of the furniture. in accordance with the title The same rule shall be observed with respect to constituting the usufruct. He cannot enter into possessoon of the property demand for a security and he cannot mortgage it. claims. A: The usufructuary has the obligation to take care of things Q: What are the requisites for a causion juratoria? with diligence of a good father. Note that the court may or may not grant petition. he may demand their delivery to him. This is based on necessity. It usufructuary? serves as a substitute for the security or bond. (497) Q: What is causion juratoria? Required Diligence A: A sworn undertaking by the uusfructuary to take good care Q: What degree of diligence is required from the of property in usufruct and return it upon termination. 589. may the usufruct lease the retain the property? property? A: Yes.NOTES ON PROPERTY Kenneth & King Hizon (2A). Facultad de Derecho Civil 78 UNIVERSITY OF SANTO TOMAS . This retroacts to the sentimental value. Q: In the above mentioned instances. tools and other movable property necessary receive them. the remains must be delivered to the owner. while the substitute answers to the usufructuary. feeding or travelling together. A usufructuary who alienates or leases his right of be replaced. also by accident and usufruct. Although the law says “each year. If there is no young and animals died. it shall be considered. without the fault of the usufructuary. If Q: What is livestock? young animals are more than that to be replaced. the Q: Will bad use extinguish usufruct? usufructuary shall fulfill his obligation by delivering to the owner the remains which may have been saved from the A: Although care of good father of family is required. only 3 must Art. as though constituted A: on fungible things. with respect to its effects. Q: To whom the remains of dead animals pertain? Q: What is herd? A: To the usufructuary A: Number of animals kept.NOTES ON PROPERTY Kenneth & King Hizon (2A). If there is partial loss under the same conditions If the animals on which the usufruct is constituted should all Since no obligations to replace. the usufruct shall continue on the part saved. Thus. excess will pertain to usufructuary. otherwise. Facultad de Derecho Civil 79 UNIVERSITY OF SANTO TOMAS . the avian animals which there is no liability. Q: When is there no obligation to make replacement? Art. If there is a total loss of animals because of contagious the young thereof the animals that die each year from diseases or other common event.UST Faculty of Civil Law ___________________________ some contagious disease or any other uncommon event. even in cash. Make ordinary repairs 2. Usufructuary is liable for damages caused by the lessee. To notify naked owner of the urgency of extra-ordinary Replacement of animals repairs or of any acts which may prove detrimental to ownership Q: When is there an obligation to replace exist? NOTE: The usufructuary shall answer for the damages caused A: by the fault of the person substituting him should he alienate 1. 591. he could by his overt act defeat the law.” this does not mean that the computation must be done yearly. the usufructuary shall be obliged to replace with 1. if Q: What will consist of the replacement? one kind (flock) A: Replacement will consist of young of these animals. If some animals diefrom natural causes or lease the usufruct. Bad use only entitles the owner to demand administration without prejudice to the Should the herd or flock perish in part. Hence if 15 cattle died but only 3 were produced. If the usufruct be constituted on a flock or herd of A: If all animals had perished: livestock. the usufructuary is liable to the naked owner. Q: What are the obligations of the usufructuary to fulfill the requirement of diligence of good father? Should the usufruct be on sterile animals. that the natural causes. If some are lost due to rapacity of beasts of prey Q: What if the property is damaged? Q: Why is there a duty to replace notwithstanding the fact that such occurrence is a fortuitous event? A: Damage to property caused through the negligence of property is demandable right away. usufruct shall answer for any damage which the things in usufruct may suffer through the fault or negligence of the If 15 died and 15 were produced but only 12 remains because person who substitutes him. still a misfortune. because he has the choice as to who will rent. it follows even all should perish. Provided. without the fault of the usufructuary. are domesticated and kept or raised in backyards or farms. A: Mammalian animals and poultry. on account of perish. (498) 3 were sold. 2. usufruct is not extinguished by bad use. or are lost due to the rapacity of beasts of usufructuary has no fault prey. 2. (499a) 1. the usufructuary must still replace the 3. 590. The naked owner need A: Because such loss is more or less expected and is natural not wait for the termination of the usufruct to bring the proper action. but he must surrender the fruits extinguish the usufruct without prejudice however to the received right of the naked owner to demand administration by him. when the need for such repairs is urgent. Ordinary repairs (502a) Q: What are ordinary repairs? Extra-ordinary repairs A: Repairs needed due to wear and tear suffered by the Q: What are extra-ordinary repairs? property thru natural use and indispensable for preservation (both).NOTES ON PROPERTY Kenneth & King Hizon (2A).yes. the increase in value which the immovable may have acquired by reason of the repairs. he shall have a right to demand of the usufructuary are indispensable for its preservation. at the termination of the usufruct. Also. but he shall have a right to demand of the owner.UST Faculty of Civil Law ___________________________ A: If upon demand on the usufructuary. A: Since there are no young which could be produced and the owner is burdened. 593. the latter may make them at the expense of the usufructuary. if owner did not execute except when the provision of title constituting the usufruct so provided. Extraordinary repairs shall be at the expense of the Art. b. Q: What if the partial loss is because of the usufructuary’s Q: May the usufructuary be exempted from doing repairs? fault. If the owner should make the extraordinary the wear and tear due to the natural use of the thing and repairs. those existing at the time the usufruct is entered into pertains to the owner. he did not or refuse The same rule applies in case of partial loss. A: Repairs needed to restore to its good condition a thing or property which has deteriorated by reason of exceptional Q: What are the requisites for it to be considered as circumstances whether or nor they are essential to its ordinary repairs? preservation or those caused by the natural use of the property but not necessary for its preservation. the owner can do such and charge the expenses the remainder of the flock must be given to the naked owner. (500) Should he not make them when they are indispensable for the preservation of the thing. 594. If not urgent. Should the the legal interest on the amount expended for the time that usufructuary fail to make them after demand by the owner. because usufructuary has already used as replacement. A: The usufructuary cannot compel the owner to make extraordinary repairs. But it is the duty of the d. the usufruct lasts. They are needed for preservation c.no. The remains not to do repairs. there is no duty to make the notification Q: During what period is the usufructuary liable? Q: Can the usufructuary compel the owner to make extra- A: The usufructuary is liable only for ordinary repairs during ordinary repairs? the usufruct. They must have occurred during the usufruct A: At the expense of the owner. They must have happened with or without the fault of usufructuary to notify the owner of such needed repairs the usufructuary. Art. does the usufruct continue on the remainder? A: A: Manresa says yes because bad use or abuse does not a. thus. the owner cannot compel the Q: What if the usufructuary refuses to do the repairs? usufructuary to make repairs. if he is not at fault. (501) By ordinary repairs are understood such as are required by Art. when the same is urgent. the usufructuary may make them. the rule on usufruct over fungibles done his job applies. The usufructuary is obliged to make the ordinary owner. Facultad de Derecho Civil 80 UNIVERSITY OF SANTO TOMAS . A: a. The usufructuary is obliged to notify the owner repairs needed by the thing given in usufruct. against the usufructuary. 592. If he was at fault. he is liable in addition to cost of repairs for damages Q: What is the rule in case of sterile animals? NOTE: If the property deteriorates even if repairs was made. They are required by normal or natural use Q: Who shall shoulder theses expenses? b. he shall recover the amount thereof at the termination of the usufruct. Due/ caused by natural use of thing and not needed for A: preservation 1. it is all right. 2. this is subject to some restrictions. 3.the usufructuary shall pay the property by reason of repairs done him the proper interest (legal interest or otherwise) on the sums which may have been paid in that character. If advanced by the usufructuary. he may A: demand from the owner the resulting increase in the value of 1. being a burden upon the capital. Right of naked owner if he makes the Examples of charges: Extra-ordinary repairs a. However. or make new plantings thereon if it be rural. should Formula: be paid by the owner of the land and not the usufructuary. reimbursement should be made immediately. A: Real property tax. (504) notice and failure of the naked owner to repair. The payment of annual charges and taxes and of those considered as a lien on the fruits. (503) pay. b. imposed directly on the capital. If paid by the naked owner. susceptible. What is Q: Is the usufructuary obliged to pay legal interest? important is that if they are made. Right of the usufruct shall not be prejudiced The law does not require the naked owner to make the repairs. The owner may construct any works and make any The reason is that usufructuary is still enjoying the improvements of which the immovable in usufruct is property and has been benefited. the usufructuary shall pay him the proper interest on the sums which may have been paid The naked owner cannot be compelled to make the repairs in that character. A: Usufructuary not obliged to pay legal interest because they are voluntary acts of owner 2. 595. expense of the usufructuary for all the time that the But the usufructuary is allowed to make them after due usufruct lasts. Value of the usufruct shall not diminish 2. Exceptional circumstances but not needed for preservation If the latter has paid them.UST Faculty of Civil Law ___________________________ The owner can construct any works and improvements or Kinds of Extra-ordinary repairs introduce new plantings. Art. The taxes which. 596. may be paid upon termination. with the right to get the increase in value and the right of retention until Art. even if usufructuary is in possession. he can charge the usufructuary with legal interest (6%) on the amount for the Q: Who shall pay for the real property tax? duration of the usufruct. and. expenses for gathering/ cultivation If the naked owner incurred expenses. (505) Usufructuary shall be liable for the annual charges and taxes on fruits. Increase in value= value after improvement minus value Rules when taxes are paid by the parties before improvement Q: What are the rules when taxes are paid by the parties? If the usufructuary made the extraordinary repairs which are indispensable for the preservation of property. 597. Q: What are the different kinds of Extra-ordinary repairs? Q: What are the restrictions to the above rule? A: 1. shall be at the expense of the owner.NOTES ON PROPERTY Kenneth & King Hizon (2A). Due to exceptional circumstances but are needed for preservation Art. if the said sums have been advanced because they are not necessary for preservation by the usufructuary. during the usufruct. Facultad de Derecho Civil 81 UNIVERSITY OF SANTO TOMAS . shall be at the The naked owner cannot be compelled to make the repairs. the expenses must be borne by the naked owner.he shall recover the provided that such acts do not cause a diminution in the amount thereof at the time termination of the usufruct value of the usufruct or prejudice the right of the provided they are voluntary if usufructuary was forced to usufructuary. If he does not want to. extraordinary repairs. NOTES ON PROPERTY Kenneth & King Hizon (2A). If he has been excused from giving security or has been able to give it. to collect such credits. 758 shall govern: he shall need the authorization of the owner. 759. or if that given is not sufficient. If support of himself. A: at the time the usufruct is constituted. According to Dean Pineda. the acceptance of the donation. If there’s a stipulation. Q: What if the usufruct is constituted on the whole of a 2. There being no stipulation regarding the payment has debts. A: If at the time of execution. proper security. If the naked owner: patrimony but the naked owner has indebtedness? a. Without such reservation.UST Faculty of Civil Law ___________________________ Q: What are the rights of the usufructuary who advanced not contain any declaration to the contrary. 750. unless a contrary intention clearly interest appears. supported by the donor. 598 apply? The same rule shall be applied in case the owner is obliged. 759 shall govern: Art. are by law entitled to be not subject to usufruct. Is obliged to make periodical payments (whether or 1. and of all relatives who. (506) 1. the second paragraph does not require that the usufruct is constituted or the whole If in agreement no amount is fixed. to make periodical payments. The usufructuary may claim any matured credits A: It depends. sufficient means for the NOTE: This Article applies only to Universal Usufruct. Has debts. the former is the taxes? understood to be liable to pay only the debts which appear to have been previously contracted. 2. Entitled to retention until paid If there’s no stipulation. Be reimbursed or recover the amount without legal the property donated. maintenance of the usufruct and to the obligation of the usufructuary to pay such debts. and if at the time of its constitution the owner Art. or of the court in default thereof. Q: When does Art. If there is no agreement to pay for the obligation of the owner. of debts. pay the owner’s indebtedness. Art. if usufructuary was made or constituted in fraud of creditors. If there is any agreement whereby the usufructuary will not there be known capital). (642a) 2. at the time of particular. even if there should be no known capital. Q: When does a usufructuary have to pay for the debt of the (634a) naked owner? Art. the donation shall be reduced in petition of any person affected. provided he reserves. 599. then the usufructuary is bound by his prestation (Art 758). 758. If the usufruct be constituted on the whole of a patrimony. in full ownership or in usufruct. the donee shall be responsible therefor only when donations shall be applied. 598 particularly apply if a person donates everything but reserves to him the usufruct. both with respect to the the donation has been made in fraud of creditors. naked owner has still other properties available. In no case shall the A: donee be responsible for the debts exceeding the value of 1. When the donation imposes upon the donee the obligation to pay the debts of the donor. the owner did not reserve sufficient property with which to pay his debts prior to the Art. property of the donor. A distinction has to be made whether which form a part of the usufruct if he has given or gives the stipulation exists or not. the liability of the patrimony. usufructuary will be liable to pay for the obligation of owner. the provisions of Articles 758 and 759 relating to of debts. It does not speak of universal usufruct if the usufructuary can not exceed the value of usufruct (must naked owner did not reserve sufficient property for payments cover past credit/ debt) Art 758. Art. or A: b. if the clause does Facultad de Derecho Civil 82 UNIVERSITY OF SANTO TOMAS . 598. If the usufruct is universal one (constituting on the whole property). Donation of everything except the usufruct Q: When can the transaction be considered as in fraud of creditors? Art. Art. The donations may comprehend all the present usufruct. or part thereof. The usufructuary of a mortgaged immovable shall movable may be constituted? not be obliged to pay the debt for the security of which the mortgage was constituted. But if the usufructuary has not given security. In any other similar way. 600. to pledge of a movable. Thus. The usufructuary who has not given security shall invest the said Q: Is the usufructuary of a mortgaged immovable obliged to capital at interest upon agreement with the owner. or when there is only caucion a. Constitute a usufruct over an equivalent estate. and the consent or authorization of the naked owner and in c. Hence A: The usufructuary shall be liable if the credit that has the usufructuary may mortgage the usufruct but not the matured (due and demandable) is not collected through his property. by analogy. it may be usufructuary’s fault or negligence? mortgaged by the usufructuary not the naked owner. In such a case.NOTES ON PROPERTY Kenneth & King Hizon (2A). or when he is excused. A: Should the immovable be attached or sold judicially for the 1. the owner shall be liable to the reached because there could be a conflict where the usufructuary for whatever the latter may lose by reason nature of the usufruct entitles the usufructuary to thereof. and. Art. default. with judicial authorization. constituted? in every case. authorization from the owner or from the court. Payment of a periodical pension. and Facultad de Derecho Civil 83 UNIVERSITY OF SANTO TOMAS . he owner shall be liable to the which form part of the usufruct like rentals due but he could usufrheuctuary for whatever the latter may lose or suffer by not claim such credit if he had not given prior security or reason thereof. in pay the debt for the security of which the mortgage was default of such agreement. with security sufficient to preserve the integrity of the capital in usufruct. fault or negligence. mortgaged. bond. 7598 and 759. However. ownership belongs to the naked owner. it is the usufructuary who should pay his debt. (509) the fruits and the nature of the pledge where the pledgee is entitled to the fruits.UST Faculty of Civil Law ___________________________ The usufructuary who has given security may use the capital Usufruct of a mortgaged immovable he has collected in any manner he may deem proper. if he usufructuary has given security. the approval of the court. Q: How is the liability of the naked owner extinguished? Accordingly. Consent of the pledgee and the pledgor must be payment of the debt. provided that the movable is in the usufructuary’s possession Q: May the usufructuary invest the money? since the law on pledge provides that it is essential that the thing pledges be placed in the possession of the creditor or a A: Yes but if there’s no security there must be an third person by common agreement. But it is subject to the use of the usufructuary. the latter will only enjoy the interest or the civil fruits. Mortgaging of the usufructuary rights Q: What is the effect of failure to collect due to Since the right is distinct from the thing in usufruct. provided the lack or delay of approval was not attributable to him. if the cause if the failure was the lack of consent of the owner or approval of the court he is Pledge of a movable not liable. collection can be done without the consent of the naked owner or the A: The naked owner may: approval of the court. Q: What are the requisites before a usufruct over a pledged Art. (507) A: No. Q: What is the rule if the usufruct is a universal one? Ownership of the credit collected A: If the usufruct is universal and some of which are If credit is collected. 600 also applies. Collection Matured Credits Q: What is the liability of the naked owner if the immovable is attached or is judicially sold? Q: Can the usufructuary collect demandable credits? A: If the immovable be attached or sold judicially for the A: Usufructuary is allowed to collect demandable credits payment of the debt. the more applicable article is Art. 598 with because matured credit contemplated by the article is that reference to Art. collection and investment can only be done with b. which forms part of the usufruct. juratoria. NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ 2. That the usufructuary is not barred from taking A: The naked owner shall give equivalent usufruct to what possession of the usufruct. was foreclosed or pay for the duration remaining plus damages. Art. 601. The usufructuary shall be obliged to notify the owner of any act of a third person, of which he may have knowledge, that may be prejudicial to the rights of ownership, and he shall be liable should he not do so, for CHAPTER 4 damages, as if they had been caused through his own fault. EXTINGUISHMENT OF USUFRUCT (511) Art. 603. Usufruct is extinguished: Notification by the Effec of lack of notice usufructuary required (1) By the death of the usufructuary, unless a contrary If a third party commits acts The usufructuary is liable as if intention clearly appears; prejudicial to the rights of damage has been cause (2) By the expiration of the period for which it was the ownership in so far as through his own fault; constituted, or by the fulfillment of any resolutory condition the rights of the naked provided in the title creating the usufruct; owner is affected; (3) By merger of the usufruct and ownership in the same If urgent repairs are needed The usufructuary cannot person; (Art. 593); make the exraordinary repairs (Art. 5944); (4) By renunciation of the usufructuary; If an inventory is to be made The inventory may go on, but (5) By the total loss of the thing in usufruct; (Art. 583). the naked owner may later (6) By the termination of the right of the person constituting point out the discrepancy or the usufruct; omissions in the inventory. (7) By prescription. (513a) Extinguishment of usufruct Art. 602. The expenses, costs and liabilities in suits brought with regard to the usufruct shall be borne by the Death of the usufructuary, unless contrary intention appears usufructuary. (512) GR: Deathextinguishes usufruct. Q: When does this article apply? XPN: A: This article particularly applies only when the usufructuary has lost the case in a usufruct of an action to recover. a. In the case of multiple uusufruct-death of the last surviving usufructuary ends the usufruct; It is applicable only to litigations involving the usufruct b. If there is a period fixed basded pn a number of directly affecting the rights of the usufructuary. years to elapse before a person would reach a certain age; and If litigation involves the defense of the naked ownership it is chargeable to the naked owner. XPN: Usufruct constituted as upport Costs and Expenses c. In case contrary intention clearly appears (expressly or impliedly). Expenses, costs, liabilities in suits with regard to the usufruct shall be borne by the usufructuary. This is true even if a resolutory condition or period has been stipulated and the usufructuary dies before the expiration of If the litigation is won: the period or the fulfillmnet of the condition. 1. Right to Usufruct: usufructuary bears costs; and Q: What is the rationale behind such rule? 2. Object held in usufruct: costs borne by naked owner. A: Usufruct is constituted essentially as a lifetim benefit for the usufructuary or in consideration of his person. Q: What is the remedy or indemnity in case of foreclosure of the property? Q: What is the effect of death of the naked owner? A: Death of the naked owner does not terminate the usufruct. His rights are transmitted to the heirs. Facultad de Derecho Civil 84 UNIVERSITY OF SANTO TOMAS NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ Consequently, the heirs shall respect the usufruct if there is a b. Full capacity to make the waiver; clear agreement. c. Waiver is clear and unequivocal; and d. Not contrary to law, public order, public policy, rd Expiration of the period or fulffillment of the resolutory morals or good customs or prejudicial to a 3 person condition with a right recognized by law. Q: What is a period? Q: Can there be partial waiver? A: It is a future event which must necessarily come although A: Yes. But if the usufruct is universal, waiver must be as a it may not be known when. whole. Q: What is a condition? Merger of the usufruct and ownership in the same person A: It is an uncertain event which may or may not happen. Q: How does merger take place? Note: This article applies when the period agreed upon for A: This takes place when the rights of usufruct and ownership the lifetime of the usufruct has already expired or when the are aqcuired by one and the same person (Art. 1275) who resolutory condition imposed already fulfilled. becomes the absolute owner thereof either through sale or succession. Renunciation of the usufructuary Total loss of the thing Q: Who makes the renunciation? The loss must be total. If the loss is only partial, the usufruct A: it is made by the usufructuary since he is the one who has continues with the remaining part. the right he is the only when capable of waiving such right. Q: What are the instances of total loss? Q: In what form should the renunciation be made? A: A: Since it partakes of a condonation or donation, it can be made expressly or impliedly, as long as it is done clearly. 1. out of commerce of man; 2. physical total destruction; and If it is done expressly, it must comply with the forms of 3. Expropriation (legal loss). donation. Q: Under what instance is partial loss deemed total? Q: Is the renunciation an assignment of right? A: In case of partial loss, the usufruct continues provided that A: No. It is really abandonment by the usufructuary of his benefit may still be obtained (art 604) but if the purpose will right and does not require the consent of the naked owner not be obtained it will be deemed as total loss. but is subject to the rights of the creditors. The creditors can rescind such renuniation to the extent of their cerdits if done in fraud of creditors. Q: Does non-use amount to renunciation? Termination of right of the person constituting the usufruct A: No. If the owner constituted a usufruct on his property, which he Q: What is the effect of such renunciation? believes he owns and later, a person with superior right over the property had established his claim and had lawfully A: It has the effect of the automatic reversion of usufruct to evicted the owner, the usufruct terminates. Accordingly, the the owner. usufructuary cannot have a better right/ right higher than that of the source. Q: What are the requisites for a valid waiver? Prescription A: For waiver to be valid: Q: What is prescription? a. Waiving party must actually have the right he is renouncing; Facultad de Derecho Civil 85 UNIVERSITY OF SANTO TOMAS NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ A: It refers to acquisitive prescription. It is the use by a third has been expressly granted only in consideration of the person which ripened into ownership and not the non-use by existence of such person. (516) the usufructuary which extinguishes the usufruct by prescription. Usufruct until a person reaches a certain age rd Note: Mere non use of usufruct does not terminate the G.R.: If a usufruct is constituted to last until a 3 person rd usufruct, unless it also constitutes renunciation reaches a certain age, the usufruct will subsist until such 3 person has reached the age specified, whether or not the Causes of extinguishment of the usufruct person survives the period Q:What are the other causes of extinguishment of the XPN: Expressly granted only in consideration of the existence usufruct? of such person; usufruct terminates upon death of the said person A: Example: If Andres gave Boni the land in usufruct to support 1. Annulment; Shine. Shine’s death extinguishes the usufructuary 2. Rescission; 3. Mutual withdrawal; Art. 607. If the usufruct is constituted on immovable 4. Legal causes like a minor attaining the age of property of which a building forms part, and the latter majority in the case of parental usufruct; and should be destroyed in any manner whatsoever, the 5. Expropriation usufructuary shall have a right to make use of the land and the materials. Art. 604. If the thing given in usufruct should be lost only in part, the right shall continue on the remaining part. (514) The same rule shall be applied if the usufruct is constituted on a building only and the same should be destroyed. But in Art. 605. Usufruct cannot be constituted in favor of a town, such a case, if the owner should wish to construct another corporation, or association for more than fifty years. If it has building, he shall have a right to occupy the land and to been constituted, and before the expiration of such period make use of the materials, being obliged to pay to the the town is abandoned, or the corporation or association is usufructuary, during the continuance of the usufruct, the dissolved, the usufruct shall be extinguished by reason interest upon the sum equivalent to the value of the land thereof. (515a) and of the materials. (517) Q: What is the rule regarding usufruct in favor of juridical Usufruct is Constituted on Immovable property of which a entities? building forms part and latter should be destroyed A: Lifetime of usufruct cannot exceed 50 yrs. to conform with 1. Usufruct is both over the land and building the ordinary maximum lifetime of corporations under corporation law. a. Usufruct on the land continues because land is not lost, but on building terminated (assumption of total loss) NOTE: If town is abandoned or corporation is dissolved b. Usufructuary can use the land and materials saved from before the expiration of the term, usufruct is terminated and building reverts to the owner resulting in latter’s full ownership c. If owner wants to rebuild the bldg, but usufructuary refuses, the latter prevails because he has the usufruct over the land until period expired Testamentary trust is not restricted by Art 605 2. Usufruct is constituted on building only A testamentary trust for the establishment of a high school in a. Usufruct on building extinguished (totally destroyed) a town with the governor of the province as the trustee and b. Usufructuary can make use of materials saved the town’s people as the beneficiary is not restricted by c. Owner has preferential right to use the land and the Art.605. said trust can continue to serve purpose of the materials with obligation to pay the usufructuary during testamentary disposition of the testator. the continuance of the usufructuary, the interest upon the sum equivalent to the value of the land and materials Art. 606. A usufruct granted for the time that may elapse d. The naked owner has the preferential right to use the before a third person attains a certain age, shall subsist for land. Thus, if the naked owner would like to rebuild, but the number of years specified, even if the third person the usufructuary refuses, the naked owner will prevail. should die before the period expires, unless such usufruct Facultad de Derecho Civil 86 UNIVERSITY OF SANTO TOMAS Also. 3. Where the usufructuary failed (not refused) to contribute another building or to restore. the first par. during premium the continuance (remaining part of the period) of the usufruct. 608. he shall be liable Rules: for cost of bldg. Use of land is mere concession or incidental to the usufructuary. if the destruction was due to the fault of usufructuary. If both naked owner and the usufructuary share in the premium and the property is destroyed Formula: a. Of Art. a. Paras: A better solution would be to make the sharing of the premiums proporionate to the respective insurable interest Person at fault must indemnify of the naked owner and the usufructuary If the destruction is caused by naked owner. still the use of the building includes the use Pineda: 50-50 sharing. 608 will appy.Paras’ commentary: The rules shall be as follows— 2. the owner insuring the tenement alone. The law states that if the owner would like to construct 1. The naked owner gets the whole indemnity with the Art. Otherwise. but the latter shall receive the full amount of the insurance usufructuary must reimburse the naked owner his share in indemnity in case of loss. there should have been of the land proportional sharing specifically provided by law. (518a) 4. continue in the enjoyment of the new b. the interest (legal interest) upon sum Proportion in sharing of contribution equivalent to the value of the land and materials.NOTES ON PROPERTY Kenneth & King Hizon (2A). If the naked owner alone pays and the usufructuary refused to share and the property is destroyed a. The materials because the usufruct is on the building except if there is a stipulation by parties b. Both the naked owner and the usufructuary share in the payment of the insurance premium J. If the usufructuary shares with the owner the obligation to give the interest thereon to the insurance of the tenement given in usufruct.UST Faculty of Civil Law ___________________________ e. Where the usufructuary alone pays the insurance material. The insurance indenify should go to the usufructuary alone. the former usufructuary shall. or shall receive the usufructuary in the preceding article interest on the insurance indemnity if the owner does not wish to rebuild. If the usufructuary alone pays the insurance premium Insurance of the tenement held in usufruct Q: What is the measure of a insuranble interest? Q: What are the 2 circumstances provided under this article? A: Under the Insurance Code. with no obligation to share with the naked owner This article does not contemplate the following 2. the Here the effect is the same as if there was sharing. If the naked owner alone pays but there is no refusal but mere failure Should the usufructuary have refused to contribute to the insurance. 1. in case of loss. on the other hand. If the owner does not construct Amount of building + damages (includes moral and exemplary damages) 2. this is to avoid unjust enrichment on the part of any of the parties. The usufruct continues both on the land and building for circumstances: the remaining period unless the usufruct is constituted on the building alone Facultad de Derecho Civil 87 UNIVERSITY OF SANTO TOMAS . being obliged to pay to the usufructuary. 607-“saving the right granted to the building. The land because although there was no usufruct on the land. Manresa: the amount respectively given is immaterial as long NOTE: The interest is based on: as both shared in paying. the latter shall be liable for: 1. the measure of a insuranble interest in a property is the extent which the indured might A: be damnnified by the loss or injury. If the owner constructs or rebuilds b. Only the naked owner pays because the usufructuary refused to share 1. should one be constructed. the naked owner shall because of ignorance or lack of notice have the right to occupy the land and to make use of the 2. saving always the right granted to the premium the usufructuary in the preceding article. Apply Art. give security for the payment of the interest. If simultaneous If successive Art. 863 and Art. the latter may demand that the thing constitution alive or at least be conceived be delivered to him. During administration for and in behalf. 863. Should the thing in usufruct be expropriated for usufructuary? public use. binding himself to pay annually to the at the time of the perfection usufructuary the net proceeds of the same.both the transferor property in usufruct. the owner is not authorized to sell. what is the effect of bad use of property by Art. a. A usufruct is not extinguished by bad use of the All donees must be alive or at If created by donation: thing in usufruct. or to pay the usufructuary the legal interest on owner the right to demand the delivery and administration of the amount of the indemnity for the whole period of the property in usufruct when abuse is considerably prejudicial to usufruct. (521) Paras: He must give it to the naked owner and compel the latter to return either the interest or to replace the property. each owns the indemnity given to him in usufruct. The usufructuary has no obligation to construct a new Q: What if the usufructuary denies the owner’s claim of building or to build considerable injury? Q: Can the usufructuary be compelled to build? A: If usufructuary denies the owner’s claim of considerable injury. If both received separate indemnities really to warn 3 persons of existence. If usufructuary alone received indemnity living at the time of its constitution shall not be extinguished until death of the last survivor. usufruct continues and testator leaves to a person the naked owner cannot demand administration by the whole or part of the himself.756-all donees must be injury to the owner. Any 3 person who deals on the property is bound to respect the recorded In such case. 609. the owner suffers considerable and transferee must be alive damages or injuries. A usufruct constituted in favor of several persons 3. 869. To replace with equivalent value b. If due to the abuse or abuses of the usufructuary on the property in usufruct. If naked owner alone received the indemnity this right pertains to usufructuary. the owner shall be obliged either to replace it with another thing of the same value and of similar A: Bad use is not cause for extinguishment but gives the conditions. If he leaves the usufruct to various persons Facultad de Derecho Civil 88 UNIVERSITY OF SANTO TOMAS . 610.NOTES ON PROPERTY Kenneth & King Hizon (2A). but the owner does not suffer Art. (519) NOTE: Owner cannot alienate right to usufruct while property Rules in cases of expropriation is under administration. 611. (520) usufruct If usufruct is testamentary.applies where the considerable damages or injuries. he shall the owner. inheritance and to another the usufruct. If the owner chooses the latter alternative. he may compel the usufructuary to or at least be conceived at deliver the thing to him to be able to maintain it and the time of death of the protect it from destruction or loss testator 2. but if the abuse should cause considerable least conceived at the time of Art. Remedy in case abuses of usufructuary causing considerable the Rules on Fidei Commisary injury to owner substitution under Art. 869 shall be applied: 1. To pay to the usufructuary legal interest on the just compensation received It is advisable that the usufructuary should register his usufructuary rights with proper Registry of Property. alienate because 1. court shall determine the issue of preponderance of A: No because the insurance company indemnity will be evidence much less than the cost of the building Q: Again. proportion to their interest in the property Art. after deducting Death of the last survivor of donation the expenses and the compensation which may be allowed among others terminates the him for its administration. If due to the abuse or abuses of the usufructuary on the Art. if it is a rd rd 2. Rules in case of multiple usufruct He may even deduct the interest himself.UST Faculty of Civil Law ___________________________ 3. easement Q: Distinguish between usufruct and easement.EASEMENTS OF SERVITUDES USUFRUCT EASEMENT CHAPTER 1 Application Applies both real Applies only to Facultad de Derecho Civil 89 UNIVERSITY OF SANTO TOMAS . (522a) whom the encumbered estate does not blong by virtue of which the owner is obliged to abstain from doing so or to permit a certain thing to be done on his estate. A: Title VII.Different Kinds of Easements Q: If the usufruct is constituted in favor of 14 usufructuaries. After the delivery has been made. the thing in Q: What is easement? usufruct shall be delivered to the owner. Must in case of rural Q: Distinguish between easement and servitude. Encumbrance is for the benefit of another immovable until he is reimbursed the usufructuary for property of for the benefit of a community or of one or for the taxes on the expenses in proper cases more persons capital which he 4. Rights and obligations at the termination of usufruct Elements of easements USUFRUCTUARY NAKED OWNER Q: What are the elements of easements? 1. It is said that easement refers to the right enjoyed and servitude. 612. without prejudice to the right of retention pertaining to the usufructuary or his A: An encumbrance imposed upon an immovable for the heirs for taxes and extraordinary expenses which should be benefit of another immovable belonging to a different owner reimbursed. 863 shall EASEMENTS IN GENERAL apply. (530) Art. will 3/14 of the usufruct accrue to naked Art. the burden imposed upon another. Imposed on an immovable 2. It may be real or personal. Usufruct v. and 3 of them die.UST Faculty of Civil Law ___________________________ successively. Upon the termination of the usufruct. An easement or servitude is an encumbrance owner or the heirs of the usufructuaries or will it accrue to imposed upon an immovable for the benefit of another the 11 surviving usufructuaries? immovable belonging to a different owner. . the servient estate. To retain the property 2. To remove the 3. SECTION 1. 613. servitude expenses 3. damages he has caused agricultural year Servitude is the broader term. A: Easement is an english law/common law term while them off against until the end of the servitude is the name used in civil law countries. An encumbrance or burden. that which is since usufruct contines up to the death of the last survivor. a restriction on the comolied with all his enjoyment of the property obligation 2. Art. the security or for the benefit of a community or one or more persons to or mortgage shall be cancelled.NOTES ON PROPERTY Kenneth & King Hizon (2A). Must return the 1. Easement is always real. Easement is advanced and never imposed by the owner of his own property indispensable extra- ordinary repair or Easement v. subject thereto. Make reimbursement to 3. The immovable in favor of which the easement is A: They will accrue in favor of the 11 surviving usufructuaries established is called the dominant estate. respect leased causing damage or set made by usufructuary. Property must be owned by another owner. Must cancel the secutiry property to naked owner or mortgage provided A: that the usufructuary has 1. improvement without land. . Servitudes may also be established for the benefit of a community. 615. Note: Easement is established only on immovable-which years if juridical must be understood in its common and not in its legal sense person. usufruct-a right of possessory right 3. buildings and roads (Manresa). Q: What are real easements? Art. A limitation on the servient owner’s rights of extinguished by by the death of ownership for the benefit of the dominant owner. Easements may be continuous or discontinuous. constituted on the on a land held in 5.UST Faculty of Civil Law ___________________________ and personal. is accesssory in relation to a real easement. Involves 2 neighboring estates (in case of real possession in an over an easement). the property which provides for the benifits. 1. Indivisible for it is not affected by the division of the land burdened by usufruct. It cannot consist in the doing of an act unless the act easement. under Art. without the intervention of any act of man. Apparent easements are those which are made known and Q: What is a servient estate? are continually kept in view by external signs that reveal the use and enjoyment of the same. or of one or more persons to whom the Art. and Extinguishement Usually Not extinguished 8. 415. It cannot be doing something which he could lawfully do if the easement transmitted as oppose to real easement. (531) A positive easement is one which imposes upon the owner Q: What is a personal easement? of the servient estate the obligation of allowing something to be done or of doing it himself. the death of the the owner of the usufructuary or 50 dominant estate. real property. a. CLASSIFICATION OF EASEMENTS Characteristics of easement Q: What are the different classification of easements? Q: What are the different characteristics of easement? A: A: 1. 616. A real right but which will affect third persons only when registered. easement but it 6. (533) easement in gross. A: They are those established for the benefit of persons that which prohibits the owner of the servient estate from without a dominant immovable estate. Continuous easements are those the use of which is or may Q: What is a dominant estate? be incessant. Real Facultad de Derecho Civil 90 UNIVERSITY OF SANTO TOMAS . estate between 2 or more persons. constituted in an 7. belongs and the servient estate upon which an mosvable. Extent All uses and fruits Limited to a 4. This is also called as did not exist. Easements are also positive or negative. property. Inseparable from the estate to which it is attached can be enjoyed. 614. A: It is the property subject of an easment. Nonapparent easements are those which show no external indication of their existence. and a negative easement. and thus. A:It refers to the immovable for which the easement was Discontinuous easements are those which are used at established and the one who enjoys the benefits of the intervals and depend upon the acts of man. immovable. Enjoyed over another immovable never on one’s Possession Involves a Easement is a non. A: They are those which are established for the benefit of an apparent or nonapparent. the dominant estate to which a right immovable or immovable. It covers only lands. 2. easement. particular use. According to party given the benefit. encumbered estate does not belong. A right limited by the needs of the dominant owner can’t be or estate without possession. cannot be alienated independently of the Constitution It may be Can be consituted estate. (532) Art. obligation rests.NOTES ON PROPERTY Kenneth & King Hizon (2A). If the servient estate is say that the easement of light and view is a continuous not a divided between two or more persons. but should be susceptible of being seen. not all require human action for exercise (Manresa). a. (534) Q: Is the easement of light and view continuous or a discontinuous easement? Thus. Example: Right of way. Non-apparent 2. Continuous 4. The easement of aqueduct 3. 2. 1. Legal or service because something is done on the servient estate. it is enough that the use may be incessant. 6. 1. Easements are indivisible. Real-constituted for the benefit of another immovable They are also called as servitudes of absention or limitation belonging to a different owner. For an easment to be continuous. their exercise may be continuous or discontinuous.the mark or sign need not be seen. Hence. still once constructed. According to right given. To allow something to be done in his property. A: While it is true that to construct a window is an act of man. Art. Right to impede or prevent the neighboring estate from performing a specific act of ownership. 617. it does not require that they be incessant. Discontinuous 1. the easement is not disconinuous easement. Apparent b. Easements are inseparable from the estate to which they actively or passively belong. Voluntary c. Personal-established for the benefit of one or more persons or of a community without a dominant According to right given immovable estate. According to source or origin They are also termed as servitudes of sufferance or intrusion a. It has an independent juridical existence because it is a real right. Discontinuous 1. limitation a. b. Getting of specific materials 3. as 3. To do it himself. Negative Q: What are the obligations of the owner of the servient 5. b. we can Art. According to indication of existence a. According to purpose of the easement or nature of According to purpose of the easement or nature of limitation. 2. Mixed 2. Partial use A: b. and estate in positive easements? a. Voluntary While both continuous and discontinuous easement. Apparent. According to indication of existence. Mixed easement may be continuous (permanent). Partial use According to the manner they are exercised 2.here the owner of the servient estate is prohibited to do something which he could lawfully do According to party given the benefit were it not for the easement. Negative. According to the manner they are exercised.UST Faculty of Civil Law ___________________________ b. For indeed while all easements Facultad de Derecho Civil 91 UNIVERSITY OF SANTO TOMAS . Legal 2. Non-apparent 4. Positive b. Perosnal require human actions for establishment. Continuous b. or restriction. Positive 1. the easement remains. According to source or origin 2. 618. it can’t be mortgaged.NOTES ON PROPERTY Kenneth & King Hizon (2A). Getting of specific materials a. is considered always apparent whether or not it can be seen. Right to participate in ownership 1. there is no reason why eminent domain cannot be corresponds to him.NOTES ON PROPERTY Kenneth & King Hizon (2A). Art. the owner of the servient estate. Thus. negative easements may be considered as juridical act to create the enumbrance. (537a) Q: May the easement of right of way be acquired by prescription? Q: How are easements acquired? A: No because it is disontinuous or intermittent. (539) acquiring easements. 622. 620. If it is the dominant estate that is divided between two or more persons. Oral prohibition and private writing therefore does 1. used to merely impose a burden or encumbrance upon the condoned property. SECTION 2. Courts can only declare its existence or non. commenced to exercise it upon the servient estate. without changing the place of its use. that the possession be public b. may be ordinarily a title but Art. possession be continuous or uninterrupted since the 2. either by virtue of a title or by prescription of ten years. Continuous nonapparent easements. Art. (535) shall be computed thus: in positive easements. only when the dominant owner actually crosses or passes 1. Prescription requires that the title or by prescription. owner of the servient estate. and 2. or the person Q: Is there such thing as judicial easement? who may have made use of the easement. The former are called legal and the latter easement. ACQUISITION ONLY BY TITLE or the presence or absence of just title on the part of the possessor. donation or apparent because of the notarial prohibition sent to the testamentary succession. The easement is 4. by an instrument acknowledged before a notary public. In order to acquire by prescription the easements entirety. Continuous and apparent easements are the only easements that can be acquired by prescription because they are the Q: Is eminent domain a mode of acquiring easements? only ones the possession of which fulfills 2 important requisites required by law for prescription: a. . If discontinuous and apparent only by title estate but can do so only at intervals. 619. Like law. dominant estate forbade. from the day on which the owner of the existence. The A: limitation on the servient owner’s right of ownership exists. (536) This article applies only to easements acquired by prescription. and each of them must bear it on the part which A: Yes. 620 makes it a distinct mode of acquired only by virtue of a title. prescrition under Art. It merely transmits an easement already existing. each of them may use the easement in its Art. act is involved. If continous and apparent they may be acquired by over the servient estate. the time of possession more burdensome in any other way. 621. Easements are established either by law or by the from executing an act which would be lawful without the will of the owners. negative easements being non-apparent cannot be acquired by prescription. Note: The notarial prohibition makes apparent what is not apparent. whether apparent or not. Yet.Modes of Acquiring Easements Continuous an apparent easements may either be postive or negative depending on whether sufferance or abstention is to Art. from the day on which the owner of the dominant estate. Continuous and apparent easements are acquired be made. necessarily discontinuous in nature. If continuous and non-apparent only by title dominant owner cannot be continually crossing the servient 3. and in negative A: None. Prescription is a mode of acquisition and is generally or discontinuous ones.UST Faculty of Civil Law ___________________________ modified. If discontinuous and non-apparent only by title. for purposes of A: Title does not necessarily mean document. (538a) voluntary easements. Q: What is meant by title? Note: Generally. It mean any prescription. that the possession be continuous Facultad de Derecho Civil 92 UNIVERSITY OF SANTO TOMAS . Intestate succession does not cerate an easement for no not suffice because the law requires solemn formalities. 620 requires 10 years irrespective of good faith or bad faith. easements. or making it referred to in the preceding article. This provision shall also apply in case of the manner so as to cause the least inconvenience to the owner division of a thing owned in common by two or more of the servient estate. portions of the same estate remain or continue to be in the same owner after alienation or partition. The owner of the dominant estate cannot use the easement except for the benefit of the immovable originally Acquisition of easement of right of way by contemplated. but if the The easement is for the exclsuive benefit of the dominant greater right of ownership of the property can be acquired by estate originally contemplated and cannot be extended to prescription. . belong to the same owner. at owner of both. way which is a mere encumberance on the property cannot be similarly acquired. (541a) The necessity of the works for the use and preservation of the The provision contemplates a situation where two estates easement is the basis and the determining factor for the between which there exists an apparent sign of an easement. by the co – owners as the effect is the same as an alienation. either not public or it is public but not continuous or uninterrupted Art. Note: The court order is merely declaratory of the existence of the easement. 622 may be acquired by title but Note: Voluntary easements must be registered to bind third not by prescription because their possession or exercise is persons while legal easements need not be registered. all the Q: What are the rights of dominant owner? rights necessary for its use are considered granted. (540a) used to suit the reasonable needs of the dominant estate. SECTION 3. ownership of the two estates is divided. to make on the servient estate all the works necessary A: It shall terminate all secondary and accessory easements. Facultad de Derecho Civil 93 UNIVERSITY OF SANTO TOMAS . for the use an preservation of the servitude.UST Faculty of Civil Law ___________________________ The easements under Art. what the law requires is that the sign indicates the existence of a servitude although there is The works must be executed in the manner least no true servitude there being only one owner. The existence of an apparent sign of easement between two estates. It does not apply to continuous and apparent easements. there seems to be no reason why the right of other estates owned by the dominant estate. But if the work is done badly. unless. the contrary should be provided in the title of conveyance of either of them. inconvenient to the servient owner. (542) A: Q: What is the effect of the principal easement to the 1. 626. extent of such works. Rights of dominant owner Art. to exercise all the rights necessary for the use of the secondary easements? easement. or there is only one estate and a part thereof is alienated. and shall choose the most convenient time and of the deed. established or maintained by the Art. at the time the altering it or rendering it more burdensome. 625. origin of an easement which cannot be acquired by prescription may be cured by a deed of recognition by the If the easement is established in a general manner:it can be owner of the servient estate or by a final judgment. 627. as a title in order that the easement may for the use and preservation of the servitude. the dominant owner will be liable for damages that may be suffered by the servient The article is not applicable in case the two estates or owner. The absence of a document or proof showing the servient estate. shall be considered.Rights and Obligations of the Owners of the Dominant and Servient Estates Art. on the servient state any works necessary alienated. should either of them be his own expense.NOTES ON PROPERTY Kenneth & King Hizon (2A). (543a) persons. The manner of exercise of the easement cannot be modified to prevent increase in the burden of the easement to the Art. Upon the establishment of an easement. or For this purpose he shall notify the owner of the servient the sign aforesaid should be removed before the execution estate. Neither can he exercise the easement in any prescription: other manner than that previously established. (n) The easement cannot be acquired by prescription. 2. but without continue actively and passively. The owner of the dominant estate may make. 623. who cannot recover indemnity for the inevitable damages or inconveniences The article applies in case of a division of a common property which may be caused thereby. 624. he may free himself from the obligation by renouncing his The rights granted by art. 628. the 3. by renouncing the easement for the benefit of the others. he must contribute to the necessary expenses in case he uses the easement. servient estate. to ask for mandatory injunction to prevent impairment of this article. which the easement is established. If the owner of the servient estate should make use of the 3. in 1. it may manner so as to cause the least inconvenience to the be changed at his expense. If he bound himself to bear the cost of the work. stated. they shall be done at the most convenient time and important works. to pay indemnity for damages. Obligations of dominant owner Art. the use of the servitude.NOTES ON PROPERTY Kenneth & King Hizon (2A). If the dominant owner violates the restrictions imposed by 4. 2. unless there is an Q: What is the presumption as to benefits? agreement to the contrary. of the manner established for the use of the easement. he must contribute to the necessary expenses if there are several dominant estates in proportion to the Dominant owner alone shall shoulder the expenses referred benefits derived from the works to in art. 627. repairs or improvements thereon. the Q: What are the obligations of dominant owner? owners of all of them shall be obliged to contribute to the expenses referred to in the preceding article. or burdensome. they do not alter or render the servitude more Nevertheless. before making the works. unless there is an agreement to the A: The servient owner shall also be obliged to contribute to contrary the expenses except when there is a stipulation to the contrary. 2. 629. to make use of the easement. the dominant owner. The owner of the servient estate cannot impair. he cannot impair the use of the easement. or should prevent him from making any 4. he shall notify the servient owner of works necessary for the use and preservation of the servitude. for the use and preservation of the servitude. who shall shoulder the expenses? Q: What are the rights of servient owner? A: If the easement is in favor of several dominant estates. must same should become very inconvenient to the owner of the notify the servient owner. Should there be several dominant estates. all A: the owners shall share the expenses in proportion to their 1. if by reason of the place originally assigned. saving an agreement to the contrary. to renounce the easement if he desires to exempt himself from contribution to necessary expenses. Obligations of the servient owner Q: May an owner exempt himself from contributing for expenses? Q: What are the obligations of servient owner? A: An owner may exempt himself from contributing to the A: expenses by renouncing the easement in favor of the others. to retain the ownership of the portion of the estate on respective interests. to change the place or manner of the use of the A: The benefits shall be presumed equal in the absence of any easement provided it be equally convenient agreement or proof to the contrary. the works which shall be at his expense. should he make use of the easement in any manner Rights of dominant owner to make the necessary works whatsoever. provided he offers another place servient owner Facultad de Derecho Civil 94 UNIVERSITY OF SANTO TOMAS . he can be compelled to restore the things to their his use of the easement original condition. he cannot alter the easement or render it more one who does not wish to contribute may exempt himself burdensome. Q: Is the servient owner obliged to contribute for expenses? 2. and furthermore. 627 is subject to the following property to the dominant owner conditions: Art. 1. Any 1. 2. 3. are necessary any manner whatsoever. he shall also be making the necesary works as to cause the least obliged to contribute to the expenses in the proportion inconvenience to the servient owner.UST Faculty of Civil Law ___________________________ 3. in proportion A: to the benefits which each may derive from the work. Rights of the servient owner Q: If the easement is in favor of several dominant estates. he must choose the most convenient time and manner in easement in any manner whatsoever. (544) 4. NOTES ON PROPERTY Kenneth & King Hizon (2A). this period shall be computed from the day on Prescription of form or manner of using easement which they ceased to be used. them should again permit its use. but nit an established. it does not affect the servitude itself while the revive if the subsequent condition of the estates or either of servitude is used in one form or another. if the easement is temporary or conditional. (547a) (2) By nonuser for ten years. with respect to discontinuous easements. and. (546a) estate or to those who may have a right to the use of the easement. Non-use must be due to voluntary abstentation by the dominant owner. other causes A: 1. because the He may use the easement subject to the condition that he basis of this cause of extinguishment is a presumptive does not impair the rights of the dominant owner. but it shall hence. The mode of the servitude is accidental. the easement itself or the right to exercise it. Art. or the part for or to whoever may have a right to use the easement the benefit of which it was established. 631.UST Faculty of Civil Law ___________________________ or manner equally convenient and in such a way that no (6) By the redemption agreed upon between the owners of injury is caused thereby to the owner of the dominant the dominant and servient estates. Art. no injury is caused by the change to the dominant owner the tenement that is affected by the servitude. by non – user for ten years. Both may be (3) When either or both of the estates fall into such lost by prescription. easement 2. Easements are extinguished: Art. Where dominant estate owned in common (5) By the renunciation of the owner of the dominant estate. 3.use NOTE: The servient owner preserves his dominion over the portion of his estate on which the easement is established. by renunciation. from the day on which an act The form or manner of using the easement is different from contrary to the same took place. dominant and servient estates. 2. unless when the use becomes possible. and may use the same in such a manner as not extinguishment of the servitude. servient owner to change place or manner of easement? 5. and not to fortuitous event. sufficient time for prescription has Art. and in the same way. (545) MODES OF EXTINGUISHMENT OF EASEMENTS NOTE: The servient owner must abstain from constructing works or performing any act which will impair. prevents prescription with respect to the others. in accordance with the provisions of the preceding in common. the place and manner has become very inconvenient to Merger him from making important works thereon. with respect to continuous easements. the use of the easement by any one of them number. It is enough that the merger be with respect to the portion of 3. to affect the exercise of the easement. by merger. Impossibility of use SECTION 4. The owner of the servient estate retains the Where the merger is temporary or under resolutory ownership of the portion on which the easement is condition. If the dominant estate belongs to several persons elapsed. 6. impossibility of use. condition that the easement cannot be used. (548) (4) By the expiration of the term or the fulfillment of the condition. in any manner Q: What are the modes of extinguishment of easements? whatsoever. Facultad de Derecho Civil 95 UNIVERSITY OF SANTO TOMAS . 633. (n) Non. he offers another place or manner equally convenient. Q: What are the requisites for the exercise of the rights of a 4. The form or manner of using the easement may (1) By merger in the same person of the ownership of the prescribe as the easement itself. renunciation. there is at most a suspension.Modes of Extinguishment of Easements The impossibility of use only suspends the servitude until such time when it can be used again. 630. . by redemption. the use of the servitude A: Right of servient owner to change place or manner of 1. 632. Easements established by law in the interest of gate private persons or for private use shall be governed by the provisions of this Title. Drainage. Right of way. natural drainage. 635. . Intermidiate distances. easement of a dam. title VII of Art. 6. 637. Easements imposed by law have for their object SECTION 2. Easement against nuisance.General Provisions NCC is merely suppletory. (552) A: Repealed by Art. general or local laws and ordinances for the general welfare. 5. Lateral and subjacent support. unless he provides an 2. Legal easements relating to waters 7. without prejudice to the provisions Q: What is a natural drainage of water? of general or local laws and ordinances for the general welfare. The owner of the lower estate cannot construct works which will impede this easement. in the absence 5. All matters concerning easements established for 3. neither can the owner of Q: What are the kinds of legal easements? the higher estate make works which will increase the burden. Art. In default. which will impede this natural flow.Easements Relating to Waters either public use or the interest of private persons. the higher estate make works which will increase this 4. Article 50. easement for drawing waters or for watering animals thereof. and 8. Public legal easement-those for public use. Art. public or communal use shall be governed by the special 4. . A: 1. easement for the construction of a stop clock or sluice Art. (551a) Q: What lower estates are obliged to receive? Facultad de Derecho Civil 96 UNIVERSITY OF SANTO TOMAS . 2. CHAPTER 2 3. 2. Light and view. (549) Art. The use by a co – private interest governed? owner is deemed to be use by each and all the co – owners. neither can the owner of 3.UST Faculty of Civil Law ___________________________ Since easements are indivisble. 7. NOTES ON PROPERTY Kenneth & King Hizon (2A). LEGAL EASEMENTS Note: The law on waters governs the use of waters and the SECTION 1. In default. natural flow. laws and regulations relating thereto. by the provisions of this Title. the use of the co – owner inures to the benefit of all the co – owners and prevents Q: How are private legal easements or legal easement for prescription as to the shares of the latter. object either public use or the interest of private persons. Private legal easement-those for private interest. as well as the stones or A: They are easements imposed by law which have for their earth which they carry with them. Party wall. A: The owner of the lower estate can not construct works 1. (550) 6. 2. A: It is a legal easement of natural drainage of lands where the lower estate as the servient estate would have to receive These easements may be modified by agreement of the the natural flow of water from the higher estates. 634. as well as the stone or earth which they carry with them. Lower estates are obliged to receive the waters Q: What are legal easements? which naturally and without the intervention of man descend from the higher estates. 613 to 687 of the NCC. easement on riparian banks for navigation. whenever the law does not prohibit it or no injury is suffered by a third person. Agreement of the parties provided they are neither prohibited by law nor prejudicial to third persons. easement of aqueduct. 50 (Water Code): 1. and. 1. alternative method of drainage. interested parties. Lower estates are obliged to receive the waters which naturally and without the intervention of man Q: What are the different legal easements under the Code? flow from the higher estate. drainage of buildings. 636. Easements relating to waters. easement of public use on riparian banks. twenty (20) meters in If the flow of water is natural and without human agricultural areas and forty (40) meters in forest areas. streams. if the interest of recreation. such as works designed to prevent or minimize Article 51. the are. fishing. but he must navigable or not) allow the owner of the servient estata to remove it. he cannot be obliged to clear such course.UST Faculty of Civil Law ___________________________ Q: What about rain waters from roof of buildings and A: houses are they included in the easement of natural 1. However.he Art. banks of rivers. fishing and salvage. or will divert the flow of waters margins. earth and dirt carried by the water? Q: What are easements of riparian banks? A: According to De Buen. servient estate shall be entitled to indemnity. 51 (Water Code) allowed to make construction beneficial to the servient estate. fishing and flow of water is the result of overflow from artificial dams or salvage. remove the obstruction or allow the owner of the dominant and streams of public use in the interest of fishing. 1.NOTES ON PROPERTY Kenneth & King Hizon (2A). The banks of rivers and streams and the shores of erosion. navigation and salvage for damages. are subject throughout their entire Because of this obligation. The banks of rivers and streams. prescription if the action to destroy the dike is brought only after more than 10 years. a. If it be necessary for such purpose to occupy lands of private ownership. furthermore. However. Facultad de Derecho Civil 97 UNIVERSITY OF SANTO TOMAS . shores of seas and lakes (whether estate is only ibliged to receive the waters thay naturally bank be private or public. the owner of the than what is necessary for recreation. Q: Is there an obligation to pay indemnity to the servient estate? Duties of the Servient estate (lower estate) A: No since the law is silent and under the law on obligations and contracts well settled is the rule that obligations arising The servient estate is obliged to receive the waters naturally from laws cannot be presumed. the owner may be required to A: It is an easement on a riparian property. banks of According to Sen. the stones and earth with the current of the water A: It depends. estate to remove it. If the rainwater flows into the owner’ land carried before it flows down directly into the servient estate he becomes liable for the collection of the water in such a way as not to cause damage to the adjacent land or tenement. the proper indemnity shall first be paid. route of drainage. even in case they are of private ownership. navigation. fishing or salvage or to build structures of any kind. Tolentino. (553a) Duties of the dominant estate (higher estate) Repealed by: He cannot make works which will increase the burden such as increasing the velocity or speed of the descent. floatage. and without interventio of man flow from higher estates and the stone and earth they carry with them Art. he cannot construct works that length and within a zone of three meters along their will impede the easement. the seas and lakes throughout their entire length and within a zone of three (3) meters in urban areas. as when he builds a dike. to the easement of public use in the general and burden other tenements without providing an alternative interest of navigation. floatage. floatage. 638. along intervention then indemnity is not required under the article their margins are subject to the easement of public use in the as long as the conditions are complied with. b. since the owner of the servient rivers. Estates adjoining the banks of navigable or floatable rivers Should he cause an obstruction. should he refuse he may be held liable and interest of recreation. navigation. whether the river be flow. subject to the easement of towpath for easement may be extinguished by non-user and barred by the exclusive service of river navigation and floatage. No person shall be allowed to stay in this zone longer works done by man and damage is caused. Q: May the owner of the servient estate be compelled to Easement of Riparian banks remove the obstruction caused by the accumulation of the stones. floatage. water which naturally and without human intervention drainage of water? descends from the higher estates 2. floatage. easement of right of way easement of abutment of a dam. Whenever for the diversion or taking of water from a river or brook. as well as the constructio of a dam is essential owners of the lower estates upon which the waters may 4. Such action would amount to taking of property Urban areas 3 meters without due process and the dam may be considered as a Agricultural areas 20 meters private nuisance and it may be demolished. indemnity shall include this service. imposed for reasons of public use. interest of recreation. (557) Art. payment of proper indemnity filter or descend. 639. Any person who may wish to use upon his own 3. it should be for the purpsoe of diverting or taking of water Art. 3. If refused. in favor of a town or village. Q: What are the easements covered by the article? Art. he may establish the 3. for drawing of animals and the person who is to construct it is not the owner of the 2. (555) For animals 2 meters For pedestrians 1 meter Art. right of way of persons and animals to the place where the easement is to be used. 641. Easements for drawing water and for watering animals carry with them the obligation of the owners of the Payment of indemnity servient estates to allow passage to persons and animals to the place where such easements are to be used. Compulsory easements for drawing water or for 2. 643. otherwise the court will fix) stream. 5. what would be the consequence of e. with administrative investigation to find out whether the the obligation to indemnify their owners. 642. NOTE: This article does not apply to canals. or lands which must support it. payment of proper indemnity (may be agreed by the or for the use of any other continuous or discontinuous parties. navigation and the construction of dam. or for the use of any other continuous or A: discontinuous stream. 1.UST Faculty of Civil Law ___________________________ c. which cannot be altered by the owners of the servient Q: What are the requisites? estate although the direction of the path may be changed. easement of tow path on banks of navigable and watering animals can be imposed only for reasons of public floatable rivers use in favor of a town or village. he must first obtain the permission of the riparian owner estate any water of which he can dispose shall have the for the construction. If it is of private ownership. after payment of the proper indemnity. provided the use of the easement is not A: prejudiced (Manresa) 1. Q: What is an easement of abutment of a dam? 2. if it is a public land. (554) Q: What are the requisites? Easement of abutment of a dam A: 1. for watering of animals banks.NOTES ON PROPERTY Kenneth & King Hizon (2A). it should be necessary to build a dam. no right exists. and the There can only be an indemnity if the land is a private one. after payment of the proper indemnity. the right must be sought not by an individual but by the A: It is an easement for the constructio of the support of a town or village. the proper indemnity shall first be paid NOTE: This includes the accessory easement of passage or before it is occupied. the one who wishes to build is not the owner of the land or bank which would support the dam Easement of aqueduct 2. One desiring to make use of the right granted in the preceding article is obliged: Facultad de Derecho Civil 98 UNIVERSITY OF SANTO TOMAS . the right of way should have a maximum of 10 meters. Forest areas 40 meters Art. he must request an right to make it flow through the intervening estates. salvage such action? NOTE: There is no burden if for other purposes A: It would be deemed as if he has taken the law into his own hands. (556) Otherwise. thru its legal representative (Manresa) dam for the diversion or taking of water from a river or brook 4. 640. Q: If neither permission nor investigation is sought before d. annexes. water for the use of said estate may make such waters pass thru the intermediate estate with the obligation of Proposed right of way is the most convenient and indemnifying the owner of the same and also the owner of the least onerous the estate to which the water may filter or flow. orchard. cause the latter any damage. construction of open canal provided it is not dangerous Owners of the intervening land and owners of lower estates and not very deep upon which waters may filter or descend. or owner of the servient estate from closing or fencing it. The shotest distance is not necessarily that contemplated by NOTE: The existence of right of way does not include the law. constructiin with tubes or pipes Q: How is the amount determined? Q: How would you characterize easement of aqueduct? A: The amount usually depends on the duration and inconvenience caused. 2.UST Faculty of Civil Law ___________________________ Requisites for use of easement of usufruct (1) To prove that he can dispose of the water and that it is sufficient for the use for which it is intended. Art. (559) 4. A: 1. or on orchards or gardens already existing. or gardens Facultad de Derecho Civil 99 UNIVERSITY OF SANTO TOMAS . 646. it cannot be imposed on existing building. pay indemnity to the owner of the servient estate 5. not be continuous. (560) Capacity to dispose Art. annexes. courtyards. This is the right arising from a forced easement by virtue of Sufficiency is a relative term and must not be construed very which the owner of an estate who desires to avail himself of literally. (561) Q: Who can apply for this right? Q: What is aqueduct? A: Only citizens of the Philippines of legal age or juridical A: It is a conduit or artificial channel for the conduction of persons qualified by law to exploit natural resources may water from a distance. annexes. manner determined by the laws and regulations. courtyards. or render necessary repairs Water Code) and cleanings impossible. or its use depends the fact that the person seeking the easement has no right to upon the needs of the dominant estate. Indemnity to the owner of the servient estate Examples: 1. (558) 2. the easement of aqueduct shall be considered as continuous and apparent. order that one may make use of said waters. proper administrative permits are obtained (Art. 13. proof that the water is sufficient for the use intended. out-houses. easement of aqueduct. or convenient and the least onerous to third persons. apply for water permits Q: What is an easement of aqueduct? Sufficient for the use intended A: The right to make water flow thru intervening estates in The purpose should be indicated to determine sufficiency. or gardens from building over the aqueduct in such manner as not to 6.NOTES ON PROPERTY Kenneth & King Hizon (2A). The easement of aqueduct for private interest 3. orchard. 644. Q: What are the requisites for the use of this right? (2) To show that the proposed right of way is the most convenient and the least onerous to third persons. Art. 645. proof that he has the capacity to dispose of the (3) To indemnify the owner of the servient estate in the water. of alternate days or hours. even though the Any real party in interest may set-up an objection based on flow of the water may not be continuous. show that the proposed right of way is the most cannot be imposed on buildings. outhouses. The purpose may be for anything so long as it is lawful. or upon a schedule the use of waters. A: It is considered as continuous and apparent. For legal purposes. construction of covered or closed canal 3. out-houses. The easement of aqueduct does not prevent the courtyards. It is considered as continuous even though the flow of water may Cannot be imposed on existing building. after payment of damages. without an adequate the servitudes of waters. establishing a permanent passage. SECTION 3. 649. the indemnity shall consist in the his estate. 1. 52 (Water Code) Q: Can easement of right of way be acquired by Q: In case of conflict between the Water Code and the Civil prescription? Code. repairs and cleaning do not become impossible estate. the indemnity shall consist of the value of the land occupied and the He can also construct works he may deem necessary to amount of the damage caused to the servient estate. has to construct a stop lock or sluice gate in the payment of the damage caused by such encumbrance. keep necessary material for its use surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway. However. subject to payment of indemnity. after payment of the proper indemnity. shall outlet to public rightway. A: The Water Code prevails. easement itself A: 2. (562) Concepts of right of way Construction of stop lock or sluice gate Q: What are the 2 concepts of right of way? Q: What are the requisites? A: 1. (564a) caused by the new easement to such owners and to the other irrigators. including those immovable is due to the proprietor's own acts. extent of easement of waters 3. otherwise he shall be liable In case the right of way is limited to the necessary passage for damages. may demand that the owners of the banks permit its This easement is not compulsory if the isolation of the construction. conditions of easement of waters provided these are property. because it is discontinuous or intermittent Facultad de Derecho Civil 100 UNIVERSITY OF SANTO TOMAS . The establishment. Art. it can be imposed even on the enumerated property because public interest prevails over private interest. the construction must be on the estate of another Q: What is right of way? 3. no damage is caused to the aqueduct its use may be continuous for all the needs of the dominant b. . to reach the former’s estate. third persons should not be prejudiced A: It is the right granted to a person or class of person to pass over the land of another by using a particular pathway Art. A: Yes. (563a) The right to demand that the owner of an estate surrounded by other estates he allowed to pass thru the neighboring Repealed by: estates after payment of proper indemnity. if the aqueduct is for the benefit of the public or community. However. provided the following are present: Should this easement be established in such a manner that a. establishment of easement of waters mentioned places? 2. damages must be paid 4. to which this section refers. The owner. not expressly determined by the Water Code. which will prevail? A: No. prevent damage to himself provided he does not impede or impair the use of the easement. extent. bed of the stream from which the water is to be taken. the Civil Code shall remain the prevailing law in case of conflict in the ff: Q: Why is can’t the easement be imposed on the above. form and conditions of therein. is Q: May the servient owner still enclose with fence the entitled to demand a right of way through the neighboring servient estate or even aver the aqueduct? estates.NOTES ON PROPERTY Kenneth & King Hizon (2A). or any person who by virtue of a real 1.UST Faculty of Civil Law ___________________________ The easement may be constructed on roads. 648. purpose must be for irrigation or improvement 2. for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate Art.Easement of Right of Way Obligations of the dominant owner Art. 647. which is 2. keep the aqueduct in proper use and care right may cultivate or use any immovable. One who for the purpose of irrigating or improving without a permanent way. the strip of land used as a passageway 1. be governed by the special laws relating thereto insofar as no provision therefor is made in this Code. there would result an invasion of privacy. form of easement of waters A: If easement of aqueduct is allowed to burden the said 4. Tolentino. Prescription requires that the right of way? possession be continuous or uninterrupted since the A: It means it is the shortest way and the one which will dominant owner cannot be continually crossing the servient cause the least damage to the property to the servient estate estate. The easement must be established at the point least Payment of indemnity Prejudicial to the servient estate. but can do so only at intervals. a public highway. the criterion of least prejudice prevails cannot because it is discontinuous or intermittent.” Where the easement is not pre-existing and it is soyght to be A: The owner must show that there is a real. if the right of way is A: The way which will cause the least damage should be used permanent and has an apparent sign it can be acquired by even if it will not be the shortest.NOTES ON PROPERTY Kenneth & King Hizon (2A). prescription. 2. it is NOTE: The property must be surrounded by immovable necessary that the easement should have been previously owned by others and there must be no adequate outlet to a established by law which implies that the same should have public highway. But in this case. The over the criterion of shortest distance limitation on the servient owner’s right of ownership exists only when the dominant owner actually crosses or passes Q: What does “least prejudicial” mean in determining the over the servient estate. The right of way must be absolutely Necessary not If it is temporary. Its existence does not depend on the consent of with real right to cultivate and use the immovable. The isolation must not be Due to the claimant’s own act. There must be no adequate Outlet to a public damages caused to the servient estate. least prejudicial to the servient estate and where the distance from the dominant estate to a public highway is the shortest. damage caused to the servient estate. the powers. easement of right of way. not a mere voluntary A: The claimant must be an owner of enclosed immovable or easement. and The use before indemnity is not allowed.1529 is the easement of easement from adjoining estates. The lessee should ask the lessor to demand the the government under Sec. Q: Who should be the claimant of the right? In as much as an easement is legal or compulsory (there being no access in the highway). the only servitude A: A lessee cannot demand such right unless the lease is which a privaye property is required to recognize in favor of registered. Q: Explain: “The right of way must be absolutely necessary. Claimant must be an Owner of enclosed immovable If the passage is continuous and permanent. Q: May a lessee demand such right? Where the certificate of title does not state that the boundaries thereof have been determined. 4. consists of the value of the land occupied plus the amount of 3. private highway established by law or any governmental canal or lateral thereof. 5. expropriation proceedings should be had and just Mere convenience is not enough to serve as basis for an compensation paid to the registered owner thereof. There must be payment of proper Indemnity. not fictituous or imposed after the land has been registered. highway. While others like Justice Paras and JBL Reyes believes that it In case of conflict. the indemnity consits of the payment of the mere convenience. proper artificial necessity for the normal enjoyment of the property. Q: May the easement of right of way be acquired by Q: What if the property is not the shortest way and will not prescription? cause the least damage to the servient estate? A: According to Sen. Since the land on which the servitude is situated is susceptible of acquisition by prescritpion why can’t a The easement of right of way shall be established at the point servitude which is less than ownership. the indemnity or with real right. 39 of PD. been preexisting at the time of registration in order that the owner may be compelled to respect it. 6. in favor of the dominant estate. Facultad de Derecho Civil 101 UNIVERSITY OF SANTO TOMAS .UST Faculty of Civil Law ___________________________ Requisites for the easement of right of way NOTE: The isolation must not be due to the claimant’s own act Q: What are the requisites for this easement? Ex: When he built enclosing walls A: 1. and. 2. the use is only for a certain period of time like: Rules when the land acquired is isolated a. The width of the easement of right of way shall be The easements created are in a sense a voluntary easement that which is sufficient for the needs of the dominant estate. However.UST Faculty of Civil Law ___________________________ Q: What are the different classifications of right of way? Where the dominant owner was granted a footpath. However. Whenever a piece of land acquired by sale. 1. The one which will cause the least damage should be Rules when the land of the grantor become isolated chosen. The criterion of least preejudice must prevail over the criterion of shortest distance. b. proper indemnity. In this case. (n) 1. land occupied plus the amount of damage caused. 650. (565) the donor. Nature of easement under Art. Least prejudice v. or previous co-owner). the donor shall not be liable for indemnity. a dominant proprietor has 1. If the passege is permanent. 652 and 653 Art. The easement of right of way shall be established at the point least prejudicial to the servient estate. generally Width of the pathway without indemnity. 2. is surrounded by other estates of the Proper indemnity vendor. its use is continuous for all the needs of the dominant estate. The width of the pathway must be enough for the needs of Q: Andrew sold to Ben a parcel of land isolated by another the dominant estate and may be accordingly changed from several estates owned by Andrew. In the case of the preceding article. he shall not be liable for even if it will not be the shortest. The grantor may demand a right of way after paying the But if the 2 circumstances do not concur in a single tenement. and the way which shall cause the least prejudice should be used. Art. In the present age when motor vehicles are vital necessary. obliged to pay indemnity to the donor for the establishment of easement of right of way. It is of course compulsory in the sense that it hs to be granted. he shall be obliged to grant a right of way without indemnity. and mere pathway for persons. it would be an abuse of enerosity to require the donor to grant a right of way without indemnity. Later owner are not abused. and The indemnity shall consist of the amount of damages 2. exchanger.those established for the benefit of private a right to demand a driveway for his automobile and not a individuals. The isolation was due to the estate of the grantor (seller. Art. In case of a simple donation. the outlet thru estate 1 became useless because the Facultad de Derecho Civil 102 UNIVERSITY OF SANTO TOMAS . and 2. (566a) parties in view of the contract entered into. the liberality must be reciprocated with liberality. Q: What is the reason behind the rule? insofar as consistent with this rule. indemnity. and 1. Limited passage necessary for cultivation. 1. he may demand a tenements surrounding the dominant estate: right of way after paying a indemnity. if the act is simple donation. Private. he A: cannot be denied the use of car. If the passaage is temporary. The one where the way is the shortest. 653. Public. that is. where the distance from the dominant estate to a public highway may be the A: Since the transfer of land was by virtue of the liberality of shortest. the donor shall be indemnified the indemnity is the equivalent of the value of the by the donee for the establishment of the right of way. shortest distance Art. exchange or partition. Passage of construction materials exchanger. because its proximate cause of creation is by the will of the and may accordingly be changed from time to time. he shall be obliged to grant a right of way without indemnity. 652.NOTES ON PROPERTY Kenneth & King Hizon (2A). or co-owner. Andrew gave an outlet time to time as the needs of the dominant owner may change thru estate 1 without indemnity since the purchase price but always subject to the rule that the rights of the servient presumably already included the right of easement. 651. the donee is caused. if it is the land Where the easement may be established on any several of the grantor that becomes isolated. (567a) 2. If the grantor is a donor.one available to the general public. (568a) expense would be encountered. This isolated estate. A proportionate share of the taxes shall be reimbursed by said owner to the proprietor of the servient estate. Q: What do you mean by “improvement”? The interest on the indemnity shall be deemed to be in payment of rent for the use of the easement. returning what he may have received by way of indemnity. the owner of the servient use of the right granted. It Art. The access A: Yes. 1. 657. When a new road is opened giving access to the because after all an outlet had already been granted. If Ben demands another A: outlet. after receiving payment of the proper indemnity for the A: According to Dean Pineda. alteration or beautification are added to make the rule comprehensive. A:Proportioanate share of the taxes shall be reimbursed by improvement. and. Q: What does the word “owner” contemplate? Art. If the right of way is permanent-upon the extinguishemnt of the servitude. nature of rentals in a lease contract which need not be returned after the termination of the leaese. The indemnity paid has the A: Owner is liable. Q: Is the extinguishment automatic or ipso facto? Art. the owner of the servient estate is This article applies only in case of permanent easement. difficulty or easement may be extinguished. When the dominant estate is joined with another estate which is abutting a public road. and Q: Who is liable for necessary repairs? 2. and must therefor pay). is he allowed to get a new one? If so. must he pay indemnity. If the right of way is permanent. in the absence thereof. It is sufficient that great convenience. Q: What do you mean by “proportionate share”? the owner of such estate shall be obliged to permit the act. demand of the owner of the servient estate. A: “Improvement”. 656. This article applies only to legal or compulsory right of way. estate may demand that the easement be extinguished.UST Faculty of Civil Law ___________________________ highway to which it led was closed. Q: What does “indispensable” mean? In both cases. 652 2. 655. 649 (he being adequate and convenient.NOTES ON PROPERTY Kenneth & King Hizon (2A). If the right of way is temporary-there is no need of returning the indemnity. of such easement is not affected by the existence of another and those for watering places. (569a) area of the right of way which could be mathematically computed by dividing the amount of the tax by the number of Temporary Easement of right of way square hectares used as right of way. repair. He cannot take advantage of Art. Q: Who shall pay for the taxes? Art. If the right of way granted to a surrounded estate ceases to be necessary because its owner has joined it to A: “Owner” comprehends the usufructuary who may make another abutting on a public road. (n) Return of the indemnity Responsibility for repairs and taxes 1. to the owner to the proprietor of the servent estate. the public highway must substantially meet A: “Indispensable” should not be construed in its literal the needs of the dominant estate in order that the meaning. it shall be corresponding to the damage caused him. Easements of the right of way for the passage of does not apply to voluntary easement because the existence livestock known as animal path. shall be governed by the ordinances and regulations relating thereto. The same rule shall be applied in case a new road is opened giving access to the isolated estate. If it be indispensable for the construction. he can demand another outlet under Art. or to raise therein scaffolding or other objects necessary for the work. the necessary A: No. 654. by the usages Q: What extinguishes the easement of right of way? and customs of the place. extinguishement can only be effected upon the repairs shall be made by the owner of the dominant estate. animal trail or any other. time the necessity arises not because of the sale becauese of the necessity itself. folds. alteration or beautification of a building. resting places and animal outlet but the contract between the parties. Facultad de Derecho Civil 103 UNIVERSITY OF SANTO TOMAS . carry materials through the estate of another. obliged to return the amount of indemnity without interest. others Any owner may free himself Partial renunciation is The easement shall be governed by the ordinances and from contributing to the cost allowed regulations relating thereto. it has similar Facultad de Derecho Civil 104 UNIVERSITY OF SANTO TOMAS . walls and live hedges of rural by the rules of co-ownership. and the Shares of co‐owners cannot Can be divided physically. on one side. or (1) In dividing walls of adjoining buildings up to the point of 2. and in their absence. (2) Whenever the dividing wall is. in dividing walls of gardens and yards (urban) customs insofar as they do not conflict with the same. 2. In this case the width shall party wall for exclusive use the community property not exceed 10 meters. Q: Is said extinguishment automatic? (3) In fences. a animal trail that of 37 meters and 50 centimeters. the animal path PARTY WALL CO-OWNERSHIP shall not exceed in any case the width of 75 meters. There must be a demand for extinguishment coupled with tender of indemnity by the servient owner. (2) In dividing walls of gardens or yards situated in cities. exit to a public road. Art. invading on the rights of the etc. 659. walls and live hedges dividing rural lands. 658. enclosures or hedges. by signs contrary to the existence of the servitude Q: What is a party wall? (Arts. by the local ordinances and 2. In ditches or drains between tenements Q: What is an easement of party wall? Q: How is the presumption rebutted? A: Refers to all those mass of rights and obligations emanating from the existence and common enjoyment of A: wall. Co-ownership plumb on all its facement. or proof to A: the contrary: 1. common agreement at the dividing line such that it occupies a portion of both estates on equal parts. towns. a party wall by renouncing ALL his rights Q: What are the special causes of extinguishment of right of way? Art.UST Faculty of Civil Law ___________________________ Without prejudice to rights legally acquired. The opening of a public road. contrary to the easement of party wall: Q: Which is the servient estate? (1) Whenever in the dividing wall of buildings there is a A: The party wall itself is the servient estate. The existence of an easement of party wall is presumed. fence. The easement of party wall shall be governed by elevation the provisions of this Title. (570a) benefit of a party for his exclusive benefit because he would be Right of way for the passage of livestock. in dividing fences. by contrary proof 3. Q: What are the presumptions (juris tantum) of existence of a party wall? SECTION 4. Title buildings and estates separated by such objects. and on the other. be physically segregated but co‐owner cannot point to any they can be physically definite portion of the Whenever it is necessary to establish a compulsory identified property belonging to him easement of the right of way or for a watering place for animals. . by the owners of adjacent 1. Joining the dominant tenement to another which has an common elevation. 660.NOTES ON PROPERTY Kenneth & King Hizon (2A). by the of repairs and construction of usage and customs of the place. the provisions of this Section and those of Articles No limitation as to use of the None of the co‐owners may 640 and 641 shall be observed. (572) A: No. 660 & 661.Easement of Party Wall A: 1. in adjoining walls of building. It is understood that there is an exterior sign. window or opening. or exterior sign. watering places. NCC) A: A common wall which separates two estates. up to common Art. (571a) tenements 4. or in rural communities. built by Note: If the signs are contradictory. straight and Party wall v. and 3. they cancel each other. unless there is a title. the indemnity for the increased A: When there is a contradiction between an external sign expenses which may be necessary for the preservation of and a title to the wall. has party walls? stepping stones. shall be borne by all the owners projects outward. Q: May an owner refuse to contribute? In all these cases. in which case the ownership of the the wall. Every owner may increase the height of the party A: If the external signs indicate ownership on both sides of wall.NOTES ON PROPERTY Kenneth & King Hizon (2A). NCC) The article mentions some exterior signs rebutting the Art. wall desires to demolish the building. (576) Q: Is the enumeration exclusive? Q: What does “on this occasion only”mean? A: The enumeration is merely illustrative and not exclusive. 662. Q: Who spends for the cost of repairs and construction of (6) Whenever the dividing wall. of the lands or tenements having the party wall in their (3) Whenever the entire wall is built within the boundaries favor. any owner may exempt himself from binding beams. only. (574) cause to the party wall. of one of the estates. and. in proportion to the right of each. (575) gardens. doing at his own expense and paying for any damage the wall. but the cost of all repairs and The wall becomes the exclusive property of the owner of the work necessary to prevent any damage which the estate which has in its favor the presumption based on any of demolition may cause to the party wall. on this occasion the exterior signs. (573) GR: Yes. Art. supported by a party presumption of a party wall. and by reason of the demolition. 664. if there is no title or sign XPN: When the party wall actually supports his building. cannot refuse to contribute for the expenses or repair and construction. 662. except when the party wall supports a building (5) Whenever the dividing wall between courtyards. the title must prevail. he may also renounce his part-ownership of the wall. ownership. in this case he shall bear the expenses of repairs and ditch shall belong exclusively to the owner of the land work necessary to prevent any damage which demolition may having this exterior sign in its favor. belonging to him. fences or hedges shall be deemed to belong exclusively to the owner A: of the property or tenement which has in its favor the presumption based on any one of these signs. A: The part‐owners. If the owner of a building. which at certain intervals project from the surface on one side only. damage be temporary. NCC) There is a sign contrary to the part-ownership whenever the earth or dirt removed to open the ditch or to clean it is only XPN to XPN: If the owner renounces his part‐ownership of on one side thereof. but not on the other. shall be borne by him. even though such quality or importance. Art. Q: What if there are external signs indicating ownership on or immediately after. others which are not inclosed. he showing the contrary. attention should be directed to the comparative which may be caused by the work. 663. and tenements is constructed in such a way that the coping sheds the water upon only one of the estates.UST Faculty of Civil Law ___________________________ conditions on the upper part. 661. and Facultad de Derecho Civil 105 UNIVERSITY OF SANTO TOMAS . 663. the party wall by reason of the greater height or depth which has been given it. floors and roof frame of one of the contributing to this charge by renouncing his part- buildings. but the lower part slants or drains owned in common. They are obliged to contribute in (7) Whenever lands inclosed by fences or live hedges adjoin proportion to their respective interests. (4) Whenever the dividing wall bears the burden of the Nevertheless. rather than to the number of signs. in addition. both sides of wall? Art. any owner may free himself from the obligation to contribute by renouncing his rights in the party wall. Q: What if there is conflict between an external sign and The expenses of maintaining the wall in the part newly title to the wall? raised or deepened at its foundation shall also be paid for by him. being built of masonry. the ownership of the walls. (Art. (Art. ditches. A: “On this occasion only” means that his liability for damages is limited to those damages suffered simulateneously. Ditches or drains opened between two estates are also presumed as common to both. The cost of repairs and construction of party walls and the maintenance of fences. but not those of the others. during. live hedges. A party wall is not for the opening of SECTION 5. (577) Q: State the reason for the above article? Increasing the height of party wall A: It is so because such an act would imply the exercise of the right of ownership by the use of the entire thickness of the Q: What are the requisites so that the owner may increase wall. he must do so at his own expense. nevertheless.Easement of Light and View windows. open through the party wall any window or aperture his own expense and. party wall. it would be an invasion of the right of the other part the height of party wall? owners. he must pay the increased cost of preservation of Q: What is an easement of view? the wall. it necessarily includes the easement therefore from his own land. proprietor of the adjoining land or tenement. but the foundation may exterior sign which rebuts the presumption that the wall is a extend equally on each side from the center of the wall. to enjoy the He shall be obliged to reconstruct the wall at his expense if view through the estate of another and the power to prevent necessary for the wall to bear the increased height and if all constructions or works which would obstruct such view or additional thickness is required. 667. of light. an apparent and continuous easement is created from the time Facultad de Derecho Civil 106 UNIVERSITY OF SANTO TOMAS . he shall provide the space make the same difficult. its purpose is to support the buildings of the part – owners. one part owner may not. he shall give the space required from his own land. A: It is the right to make openings or windows.UST Faculty of Civil Law ___________________________ If the party wall cannot bear the increased height. the Art. The additional thickness of the new wall must be placed on A window or opening in the dividing wall of buildings is an the land of the person building it. (580) make it thicker. No part-owner may. by Art. if the without interfering with the common and respective uses by window is through a wall on the dominant estate.NOTES ON PROPERTY Kenneth & King Hizon (2A). The extent of the right to use is thus made to correspond to the extent of liability for repairs and Positive easement construction provided for in Art. 2. make any window or opening of any kind thru a party wall without the Art. virtue of the opening of a window or the making of certain 3. The period of prescription for the acquisition of an paying proportionally the value of the work at the time of easement of light and view shall be counted: the acquisition and of the land used for its increased thickness. inasmuch as each owner is entitled only to a proportional use of the party wall. . Every part-owner of a party wall may use it in (2) From the time of the formal prohibition upon the proportion to the right he may have in the co-ownership. 662. without the consent of the owner desiring to raise it shall be obliged to reconstruct it at others. if for this purpose it be necessary to of any kind. acquire the right of part-ownership therein. 666. therefore. The other owners who have not contributed in consent of others. A person building a common wall must exercise such Q: Is it possible to have light only without view? reasonable care as will render the inconvenience and loss to his neighbor as small as practicable. depth or thickness to the wall may. A: Yes. he must bear the cost of maintaining the portion openings. if the window is on a balcony or projection extending over the property. added. and 4. if it is through a party wall. giving increased height. It is made thru a party wall or even if made on one’s own wall. (n) the other co-owners. or Art. 668. (578a) (1) From the time of the opening of the window. A: Q: What is an easement of light? 1. When a window is opened through a party wall. (579a) PRESCRIPTIVE PERIOD FOR ACQUISITION OF EASEMENT OF Each part-owner can use the party wall only in proportion to LIGHT AND VIEW his interest. he must pay any damage caused thereby even if the A: It is the right to admit light from the neighboring estate by damage is temporary. 665. iron grating imbedded in the wall and with a wire screen. the size must not exceed 30 centimeter square. 669. subject to special regulations and local ordinances. and in cases of oblique OPENINGS AT HEIGHT OF CEILING JOISTS TO ADMIT LIGHT view from the dividing line between the two properties. buildings separated by a public way or alley.UST Faculty of Civil Law ___________________________ of such opening. it can also obstruct the opening unless an easement turn one's head to the left or to the right. from the outer line of the latter when they do. (584a) Q: What are the restrictions for making an opening for light and air? DIRECT AND OBLIQUE VIEWS A: Q: What is a direct view? 1. such that from the opening in such wall it is joists or immediately under the ceiling. and of the distance of two meters between the wall in which they are size of thirty centimeters square. restrictions. or other similar adjoining a tenement or piece of land belonging to another. the owner of the tenement or property conterminous property be had. A: It is that which is obtained from a wall parallel to the 2. (582a) He can also obstruct them by constructing a building on his land or by raising a wall thereon contiguous to that having Art.NOTES ON PROPERTY Kenneth & King Hizon (2A).1. The nonobservance of these distances does not give rise to prescription. 672. No windows. apertures. the owner may make an opening for the purpose of admitting light and air. if there be no stipulation to the contrary. of putting out or turning one's head side. them should he acquire part-ownership thereof. (583) If the wall is not a party wall. and. possible to see the adjoining tenement without the necessity 3. the owner of a wall which is not party wall. 4. which is not less than three meters wide. adjoining owner. Art. 670. the adjoining owner can order the The openings allowed by this article are for the purpose of window closed within ten years from the time of the opening admitting light. Neither can side or oblique views upon or towards such Nevertheless. hence they can be made only in the walls of of the window. Under Article 668 par. When the distances in Article 670 are not observed. it is necessary to others. 671. the ten year prescriptive period under it and certainly forms one of the essential parts of commences from the time of the formal prohibition upon the every story of the building having several floors. with an made and such contiguous property. there must be a wire screen Q: What is an oblique view? If the wall becomes a party wall – a part owner can order the closure of the opening because no part – owner may make an A: It is obtained from a wall at an angle with the boundary opening through a party wall without the consent of the line. but not for Art. (581a) line of the wall when the openings do not project. A: A horizontal timber that are placed upon the tops of the uprights. without leaving a ceiling joints or immediately under the ceiling. in every case. The provisions of Article 670 are not applicable to view. servient owner may not impair the easement. but there is no true easement as long as the of light has been acquired by prescription in which case the right to prevent its use exists. balconies. Art. unless an easement of light has been shall be measured in cases of direct views from the outer acquired. projections which afford a direct view upon or towards an can make in it openings to admit light at the height of the adjoining land or tenement can be made. Q: What are joists? The “formal prohibition” must be an instrument acknowledged before a notary public. The distance referred to in the preceding article such openings. unless there be a distance of adjoining the wall in which the openings are made can close sixty centimeters. beams. Facultad de Derecho Civil 107 UNIVERSITY OF SANTO TOMAS . there must be an iron grating imbedded in the wall. in order to see the adjoining tenement. buildings. the opening must be at the height of the ceiling boundary line. Negative easement Q: What is a ceiling? If the window is made through a wall on the dominant A: It is the part of the construction which covers the room Estate in such a case. prescription A: Whenever the easement of direct view has been acquired by any such title. The owner of a tenement or a piece of land. Direct Views: the distance of 2 meters between the wall of the servient estate cannot build thereon at less than a and the boundary must be observed. 670 must be observed. even though the adjacent land may belong to two or more persons. and the owner who opened 1. It have direct views.NOTES ON PROPERTY Kenneth & King Hizon (2A). (585a) regulates the use of one's property. they constitute unlawful openings. The owner of a building shall be obliged to construct its roof or covering in such manner that the rain Prescription may still be acquired as a negative easement water shall fall on his own land or on a street or public after ten years fromthe time of notarial prohibition. or through conduits. 675. hence. the owner shall be obliged to collect the water in WHERE BUILDINGS SEPARATED BY A PUBLIC WAY such a way as not to cause damage to the adjacent land or OR ALLEY tenement. Note: Any stipulation to the contrary is void (Art. one of whom is the owner of the roof. NCC). Even if it should fall on his own land. 2. Contract. balconies or belvederes overlooking an provides an exception to art. The owner 1. the minimum width is necessary for the Q: What is an easement of drainage of buildings? sake of privacy and safety. otherwise it is void. the distance for oblique view is much shorter ineffective by stipulation. or Q: What are the restrictions as to easement of views? 4. The said distances involve considerations of public policy and the While Article 671 provides the manner of measuring the general welfare. 2. Whenever by any title a right has been acquired to to his neighbors.UST Faculty of Civil Law ___________________________ The title as used in Art. measured in the manner provided in Article 671. Donation. 3. even if he be a co –owner of the latter. obviously because of the difficulty of affording a full view of the adjoining tenement. and not on the land of his neighbor. place. 673. there is created a true easement. the use of one’s own property by imposing on him the obligation to collect its rain water so as not to cause damage Art. . and distance of three meters from the boundary line. 670 is not compulsory where EASEMENT OF DRAINAGE OF BUILDINGS there is a public way or alley provided that it is not less than three meters wide. (586a) The distance provided in Art. 637 which obliges lower estates adjoining property. A: It is the right to divert or empty the rain waters from one’s Note: The width of the alley is subject to special regulations own roof or shed to the neighbor’s estate either drop by drop and ordinances. the minimum distance of two meters or sixty centimeters prescribed in art. 673. Any stipulation permitting distances less than those prescribed Note: This article does not establish servitude but merely in Article 670 is void. 672. may build in such manner as to receive the water Facultad de Derecho Civil 108 UNIVERSITY OF SANTO TOMAS . Oblique Views: (walls perpendicular or at an angle to the boundary line) must not be 60 cm to the nearest edge of The distance may be increased or decreased by stipulation of the window. them may be ordered by the court to close them. 673 refers to any of the modes of When windows are opened at a distance less than that acquiring easements: prescribed by this article from the boundary lines. 674. ACQUIRED subject to the easement of receiving water falling from roofs. 669. the owner of the servient estate cannot to receive the waters which naturally flow from higher build thereon at less than a distance of three meters to be estates. they should not be rendered distance. the parties provided that in case of decrease. Will. WHERE EASEMENT OF DIRECT VIEW HAS BEEN Art. A private alley opened to the use of the general public falls The article does not really create servitude it merely regulates within the provision of Art.Drainage of Buildings to the dividing line provided no window is opened as provided in Art. Art. An owner can build within the minimum distance or even up SECTION 6. and in regulations relating thereto. or factory which by reason of its A: The purpose of this article is to prevent the plantings from nature or products is dangerous or noxious. These the latter shall have the right to demand that they be cut off prohibitions cannot be altered or renounced by stipulation insofar as they may spread over his property. such precautions shall be to cause any nuisance or damage whatever to the dominant taken as may be considered necessary. The article deals not with a legal or compulsory easement. chimney. 679. The outlet to the water must be at the point where The owner must take necessary protective works or other egress is easiest.NOTES ON PROPERTY Kenneth & King Hizon (2A). forge. ETC. tenement. There must be payment of proper indemnity. and establishing a conduit for drainage. (589) default thereof.UST Faculty of Civil Law ___________________________ upon his own roof or give it another outlet in accordance with local ordinances or customs. 680. WELL. and in such a way as not In the absence of regulations. subject. stable. Q: What is the purpose of Art. and it is not possible to give an hereafter planted at a shorter distance from his land or outlet through the house itself to the rain water collected tenement be uprooted. It provides the Art. and 3. in order to avoid any estate. and without making the necessary Art. machinery. (583) FORTIFIED PLACES EASEMENT GIVING OUTLET TO RAIN WATER WHERE HOUSE This article establishes an easement in favor of the State. If the branches of any tree should extend over a protective works. (590a) EASEMENT TO RECEIVE FALLING RAIN Art. (591a) easiest. SECTION 7. in regard to the manner thereof. 678. observing the distances prescribed by the regulations and customs of the place. No person shall build any aqueduct. the establishment of an easement of drainage can be demanded. thereon. without encroaching into the neighboring tenements. The prohibitions in the article cannot be altered or renounced by stipulations because they involve considerations of public policy and general welfare. 629. if it be on the part of the adjoining proprietors. No trees shall be planted near a tenement or piece WATERS of land belonging to another except at the distance authorized by the ordinances or customs of the place. well. Q: What are the conditions for this easement? CONSTRUCTION OF AQUEDUCT. by art. depository of corrosive substances. Art. 679. and. sewer. 677. small trees are planted.Intermediate Distances PLANTING OF TREES and Works for Certain Constructions and Plantings The article establishes a negative easement. (587) damage to the neighboring lands or tenements. 676. No constructions can be built or plantings made minimum distances of trees and shrubs from the boundary near fortified places or fortresses without compliance with line. There must be no adequate outlet to the rain water Such constructions must comply with the distances because the yard or court of a house is surrounded by prescribed by local regulations and customs of the place. and. Art. It is an application of and at a distance of at least fifty centimeters if shrubs or Art. 2. garden or yard. Whenever the yard or court of a house is Every landowner shall have the right to demand that trees surrounded by other houses. in the absence thereof. ordinances. . giving an outlet to the water at the point of The provisions of this article also apply to trees which have the contiguous lands or tenements where its egress may be grown spontaneously. other houses. the owner of to the conditions prescribed by such regulations. the roots of a neighboring tree which should penetrate into Facultad de Derecho Civil 109 UNIVERSITY OF SANTO TOMAS . at a distance of at least two meters but with a voluntary easement to receive rain water falling from the dividing line of the estates if tall trees are planted from the roof of an adjoining building. neighboring estates. SEWER. They shall be regulated by the local ordinances and in the conditions required in special laws. and establishing a conduit for the drainage in such manner as to cause the least damage to the servient estate. by the customs of the place. A: 1. and the absence thereof. neighboring estate. CONSTRUCTION AND PLANTINGS NEAR after payment of the property indemnity. 679? furnace. The SURROUNDED BY OTHER HOUSES general prohibition is dictated by the demands of national security. a nuisance involves any owner to cut them. (592) easement which prohibits the proprietor or possessor from committing nuisance through noise. the prescription starts to run. unwarranted. INTRUSIONS OF BRANCHES OR ROOTS INTO smoke. the court may authorize the neighboring existence of the easement. offensive odor. NEIGHBORING ESTATE Art. the right of ownership is an easement. prescriptive period of a negative easement would begin to run from the date of such prohibition. However. SECTION 8. But the owner of the PROPRIETOR OR POSSESSOR OF LAND OR plantings cannot destroy them and the adjacent owner has BUILDING PROHIBITED FROM COMMITTING no cause to complain. water. glare and other causes. FRUITS NATURALLY FALLING UPON ADJACENT LAND SECTION 9. so. (n) a consequent damage. Every building or piece of land is subject to the within his property. and which produces such material annoyance. 682. Subject to zoning. A: The right to cut does not prescribe so long as the owner tolerates the branches and roots invading his tenement. branches of trees extending over his land. health. A: When both the land being supported and the supporting land which are divided by a vertical plane. Q: What is the basis of this article? The easement against nuisance is not an easement at all but a restriction upon the ownership and not every limitation on A: This is based on the principle of accession. heat. and if the owner of the tree does not do do something which he could lawfully do were it not for the so voluntarily. jarring. Q: Does this right prescribe? The above articles are more of a restriction on the right of ownership than a true easement. police and other laws The rights given to the adjoining owner by Article 680 do not and regulations. discomfort or harm that the law will presume to the owner of said land. Art. 684. Q: What if the fruits fall on a public property? Q: What about subjacent? A: If the fruits fall on public property. factories and shops may be maintained prescribe where his inaction is by reason of mere tolerance provided the least possible annoyance is caused to the unless a notarial prohibition is made in which case the neighborhood. Fruits naturally falling upon adjacent land belong inconvenience. the owner of the tree retains ownership. or unlawful use by a person of his own property. 681. A: It is considered as subjacent when the supported land is above the supporting land is beneath it. act or omission which is unlawful. No proprietor shall make such excavations upon A: Such fruits belong to the owner of the adjacent land to his land as to deprive any adjacent land or building of compensate him for the inconvenience causes by the sufficient lateral or subjacent support. NUISANCE Q: Can the adjoining estate cut the roots and the branches Q: Is an easement against nuisance a positive or negative without the consent of the owner of the tree? one? A: Right to cut roots can be exercised without notice to the A: The Civil Code considers the easement against nuisance as owner of the trees. . But as to the branches. dust. 683.Lateral and Subjacent Support (n) Q: Who owns the fruits which fall from the adjacent land? Sec. the latter may cut them off himself Art.UST Faculty of Civil Law ___________________________ the land of another.Easement Against Nuisance (n) Facultad de Derecho Civil 110 UNIVERSITY OF SANTO TOMAS . But Q: What is a nuisance? the moment the owner of the tenement demanded that the branches be cut off and the owner of the tree refuses to do A: It is a class of wrongs which arise from unreasonable. Note however that for the adjacent owner to be entitled to the fruits they must Q: When is the support considered as lateral? not only fall upon his land but the falling must occur naturally. it is necessary to negative because the proprietor or possessor is prohibited to ask that they be cut. .NOTES ON PROPERTY Kenneth & King Hizon (2A). (595) The giving of the notice is just an additional precaution. which will not injure the right of usufruct. 689. 688. PROPRIETOR PROHIBITED FROM MAKING Art. whether he is VOLUNTARY EASEMENTS the owner of the land or not. any servitudes neighboring property. A: 1. Injunction. no perpetual voluntary easement Q: Does the limitation extend to future constructions? Facultad de Derecho Civil 111 UNIVERSITY OF SANTO TOMAS . or threatened to be done would be establish thereon the easements which he may deem ruinous or irreparable or would impair the just suitable. instead of observing a sufficient distance to permit the necessary lateral support of adjoining lot may A: Yes. Action for damages. but consent once given is not revocable. easements thereon without the consent of the usufructuary? Q: Is the notice required mandatory? A: The owner of a property in usufruct may create easements A: Yes except where there is actual knowledge of the thereon without the consent of the usufructuary provided proposed excavation. support the latter artificially.the injunctive relief will be granted if the Art. 690. it Where the property held in usufruct does not have the force and effect of a substitute for and does not absolve the excavator from the duty to exercise Q: May the owner of a property in usufruct may create reasonable care to avoid injury to neighboring buildings. However. owners of adjacent lands. Since easement involves an act of strict dominium. and in the manner and form which he may deem enjoyment of the property in the future. Q: Who may constitute voluntary easements? Q: State the purpose of notice? A: The owner possessing capacity to encumber property may A: It is to enable the adjoining owners to take the necessary constitute voluntary servitude. If there are various owners. Art. provided he does not contravene the laws. Although the person making the excavation has given notice. Whenever the naked ownership of a tenement or DANGEROUS EXCAVATIONS piece of land belongs to one person and the beneficial ownership to another.NOTES ON PROPERTY Kenneth & King Hizon (2A). The owner of a tenement or piece of land. Q: When is an easement voluntary? Art. In any case. Every owner of a tenement or piece of land may acts done.UST Faculty of Civil Law ___________________________ The excavator. must consent. 2. public policy or public order. the rights of the latter are not impaired. the he is bound nevertheless to exercise reasonable care and skill usufruct of which belongs to another. a beneficial owner may establish a temporary Art. best. The legal easement of lateral and subjacent easement consistent with his right as such and subject to support is not only for buildings standing at the time the termination upon excavations are made but also for constructions that may be erected. 685. It may endanger not just property but also authority. (594) Art. 686. in excavating on his land so as not to cause damage to the without the consent of the usufructuary. may establish a voluntary easement. the excavation should not deprive the adjacent Q: What are the remedies for violation of this article? land or building of sufficient lateral or subjacent support. all precautions to protect their lands and the building thereon. human life. only the The reason behind sucj rule is that the same is contrary to owner or at least one acting in his name and under his public policy. 687. Any stipulation or testamentary provision allowing excavations that cause danger to an adjacent land or Owner of lamd may constitute easement building shall be void.the action may be maintained CHAPTER 3 against anyone who causes the injury. Any proprietor intending to make any excavation A: it is voluntary when it is established by the will of the contemplated in the three preceding articles shall notify all owners. may impose thereon. b.NUISANCE (n) The creation of a voluntary easement on property owned in common requires the unanimous consent of all the co – Art. Art. owners. in a proper case. establishment. the abandonment or transfer must Consent of both the naked owner and the beneficial owner is be made in the proper juridical form required for the necessary transmission of ownership of immovable property. 692. 694.UST Faculty of Civil Law ___________________________ may be established thereon without the consent of both Q: How should abandonment be made to produce the owners. The title and. If acquired by prescription. In order to impose an easement on an undivided The article applies only where the owner of the servient tenement. 6. act.). (3) Shocks. omission. will. or any body of water. the consent of all the co-owners estate bound himself to bear the cost of the work required shall be required. or anything else which: merely an alienation of an ideal share of a co – owner.NOTES ON PROPERTY Kenneth & King Hizon (2A). d. his conformity. A nuisance is any act. Shocks. preservation thereof. there must be resulting injury to maintenance of easement another in the enjoyment of his legal rights. the possession of an public highway or street. (596) transmission of ownership over the tenement abandoned? Creation of perpetual voluntary easement A: In order to produce the transmission of ownership over the tenement abandoned. anything else which: 2. establishment. If the owner of the servient estate should have NOTE: Art. (598) A: Any: 1. Hinders or impairs the use of property or Art. condition of property or 1. If created by title (contract. or piece of land. etc. 693. it must follow the But the consent given by one of the co-owners separately form required by law for the transmission of ownership of from the others shall bind the grantor and his successors not real property to prevent the exercise of the right granted. Q: When are the rules on negligence applicable in nuisance? Facultad de Derecho Civil 112 UNIVERSITY OF SANTO TOMAS . and not of bear the cost of the work required for the use and the harm or damage caused. or The consent may be given separately or successively. the easement shall be Q: What is a nuisance? governed by such provisions of this Title as are applicable thereto. business or A: 5. defies or disregards decency or morality. 4. . upon the establishment of the easement. He is bound to fulfill the obligation he has contracted. must be held in abeyance free himself from obligation by renouncing or abandoning his until the last one of all the co-owners shall have expressed property to the dominant owner. rights of the dominant estate and the obligations of the servient estate. In any case. the Civil Code will only apply suppletorily. governing rules for such? 3. 596 gives the statutory definition of nuisance in bound himself. the title governs. condition of property. (599) A: Negligence is not an essential ingredient of nuisance but to Where the servient owner bound himself to bear cost of be liable for nuisance. Annoys or offends the senses In both cases. for the use and preservation of the easement. In default thereof. to terms of that which causes the harm or damage. (597a) Imposition of easement on undivided property Title VIII. it cannot be tacit or implied. He may The consent given by some only. 691. defies or disregards decency or morality c. it is governed by the a. or (2) Annoys or offends the senses. or (4) Obstructs or interferes with the free passage of any Art. or easement acquired by prescription shall determine the (5) Hinders or impairs the use of property. because it involves an act of alteration and not business. Injures/dangers the health or safety of others manner or form of possession. Q: How are voluntary easements created and what are the 2. (1) Injures or endangers the health or safety of others. he may free himself from this obligation by renouncing his property to the owner of the Q: Is negligence an ingredient for a nuisance? dominant estate. omission. to cause injury to the property or the right or interest of another consequential injury is direct and immediate Annoys or offends the senses Kinds of nuisance The annoyance shall be judged by the effect they produce Q: What are the kinds of nuisance? upon ordinary persons under normal circumstances. the and compliance with recognized notions of modesty and rules applicable to negligence will be applied. passage.NOTES ON PROPERTY Kenneth & King Hizon (2A). defies or disregards decency or morality Facultad de Derecho Civil 113 UNIVERSITY OF SANTO TOMAS . not by their effect upon the over sensitive. billboards constitutes as nuisance Hinders or impairs the use of property Causes of nuisance Anything which hinders or impairs the use of properties is a Q: What are the causes of nuisance? nuisance. NEGLIGENCE NUISANCE Q: What is morality? Basis Liability is based on Liability attaches lack of due diligence regardless of the A: It is the observance of what is right and the avoidance of degree of care or skill what is evil. A: Private propeties are the only ones covered. Private nuisance – is one which affects an individual or few Ex: pumping station which rendered a house uninhabitable persons only. the fastidious or the A: discriminating. Injures or endangers the health or safety of others NUISANCE v. property in such a manner as another’s right of property is still nuisance. it is A: It is proprietary of behavior or demeanor shown by respect asserted give rise to a cause of action for nuisance. persons b. to obstruct them is to defeat their cause the injury party by the purposes as they are intended for transportation maintenance of the act or thing which Ex: sidewalk vendors. According to the number of persons affected: Neither they will be judged by their effect upon those who are abnormally indiferent to such things nor those who have a. because of the noise produced. of the act already done which suffered by aggrieved highway. Remedy some cases even Obstructs or interferes with the free passage of any public is only action for without judicial highway or street. terminals. 2. exercised to avoid the injury Ex: a house of prostitution Abatement no action for Abatement is allowed in abatement.Other classification of nuisance: Shocks. or body of water. Public (or common) nuisance – is one which affects the become accustomed and learned to endure them without community or neighborhood or considerable number of any inconvenience. or any body of water damages proceedings Condition act complained was Continuing harm Any construction which are placed on roads. TRESPASS Anything which tends or pose danger to the safery of a person is a nuisance NUISANCE TRESPASS consists of a use of one’s a direct infringement of Even if crops or vegetation or other properties are damaged. delicacy. 1.UST Faculty of Civil Law ___________________________ Q: What is decency? A: It has been held that where the acts or omissions constituting negligence are the identical acts which. 3. but which may become a children in play. Nuisance per accidens and under any circumstances regardless of location of surroundings. 695. productive Q: What are the elements of attractive nuisance? of injury or dangerous to life or property without regard A: to circumstance 1. Nuisance per se nuisance. Mixed Doctrine of attractive nuisance Nuisance per se v. and cannot be said morals of the public. it is always a nuisance at all times 2. either for their indictable XPN: Swimming pools with dangerous slides abatement or for damages. nuisance. or to be works some substantial GR: A swimming pool or water tank is not an attractive public annoyance. or is liable to a child of tender years who is injured thereby. Ex: A house washed on to a street railway track: private nuisance to the railway company and a public nuisance Old classification: because it obstructs the street. A private nuisance is one that is not included in the foregoing definition. A nuisance because of its inherent qualities. By its nature. not a nuisance per instrumentalities or appliances of a character likely to attract at all times and under any se. Nuisance is either public or private. or both Art. unequal. location. it is merely an imitation of or injury to the public the work of nature. it is called mixed nuisance. and who fails to exercise ordinary care to circumstances. occupation. A public nuisance affects a community or neighborhood or any Q: May a nuisance be both public and private? considerable number of persons. although the extent of the annoyance. maintaining or doing such nuisance Q: What is the basis of this doctrine? Private v. Public location. PRIVATE PUBLIC One which violates only the doing of or the failure to Q: Is a swimming pool an attractive nuisance? private rights and produces do something that injuriously damage to but one or few affects safety. or an act. Private managed. inconvenience. the Q: In what instance this doctrine not applicable? manner of its conduct or other circumstances A: The doctrine is generally not applicable to bodies of water. Public nuisance A: The attractiveness is an invitation to children. if small children are drowned in Affects the individual or a affects the public at large or an attractive water tank of another.NOTES ON PROPERTY Kenneth & King Hizon (2A). It must be attractive As a matter of law As a matter of fact 2. Need only be proved in any Depends upon its location locality and surroundings. surrounding or in the manner it is conducted or 2. surroundings even if the child is technically a trespasser in the premises. This serves as a safeguard to prevent danger. occupation. Dangerous to children of tender years. for while it is attractive. Nuisance per accidens Q: What is the doctrine of attractive nuisance? Nuisance per se Nuisance per accidens an act. surroundings. nuisance by reason of prevent children from playing therewith or resorting thereto. Facultad de Derecho Civil 114 UNIVERSITY OF SANTO TOMAS . or A: persons. health. or A: One who maintains on his premises dangerous structure which is a nuisance structure. May be summarily abated May be abated only with artificial as well as natural in the absence of some unusual under the law of necessity reasonable notice to the condition or artificial feature other than the mere water and person alleged to be its location. Nuisance Per Accidens – that kind of nuisance by reason of 1. the owner is not liable limited number of individuals such of them as may come in even if there be no guards in the premises. danger or damage upon individuals may be A: Yes. Hence. Nuisance Per Se – that kind of nuisance which is always a 1.UST Faculty of Civil Law ___________________________ a. According to the NCC: b. only contact with it actionable. regardless of location or circumstances. concert of action. it. or permits its continuation has the same liablity as the one who created it. all who participated in the creation or Prosecution under RPC/ No criminal action. He now becomes liable as if he was the one who A: No. within his power to abate the same. A: If two or more persons who create or maintain a private nuisance act entirely independent of one another. whether public or private. it is a nuisance. The owner of property abated as a nuisance is not entitled to compensation unless he can show that the abatement is Art. who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefor in Art. an ordinance or special penal law. 696. Q: What are the remedies againts nuisance? Q: What is the rule if there is a concurrent of act or community of action? A: A: If there be concurrent act or community of action in PUBLIC PRIVATE producing injury. Lapse of time cannot legalize any nuisance. Civil action. Art. the same manner as the one who created it. maintenance of the nuisance are solidarily liable. every successive owner or possessor of prescribes that easements are extinguished by property constituting a nuisance who fails or refuses to abate obstruction and non – user for ten years. If the civil action or criminal action is pursued. If he fails it may be abated through a existence. 699. nuisnace may result from a common design. Every successive owner or possessor of property unjustified. 698. is the question knowledge of the existence of the nuisance. Facultad de Derecho Civil 115 UNIVERSITY OF SANTO TOMAS . nuisance is not extinguished by prescription. The abatement of a nuisance does not preclude the can seek for a judgment directing the defendant to abate the right of any person injured to recover damages for its past nuisance by himself. or as a felony. Civil action. proceedings. in addition to an order for the destruction or demolition or Q: When does the liability of the successor attaches? removal of the nuisance. However. or offense. or knowledge of the existence of the nuisance and that it is (3) Abatement. it is immaterial. each is liable only so far as his acts felony. business or even its existence causes grave inconvennience and discomfort to others. the plaintiff Art. it is necessary that he has actual (2) A civil action. local ordinance.UST Faculty of Civil Law ___________________________ Abatement and recovery of damages Q: Can a lawful business be a nuisance? The action to abate and the action to recover damages are A: It may or may not be a nuisance depending upon the distinct remedies either or both of which the plaintiff may particular circumstances in each case. and RPC has no specific provision punishing nuisnace as a criminal without any community of interest. Liability of successor of property constituting a nuisance Effect of lapse of time GR: Only the creator of a nuisance is liable for the damage GR: the right to bring an action to abate a public or private resulting therefrom. 697. the accused will be proecuted for the specific crime contribute to the injury. despite this of intent material? knowledge he fails or refuses to remove or abate this nuisance. 613 (2) which expressly continuing one. The remedies against a public nuisance are: Q: What should be done to render the person liable? (1) A prosecution under the Penal Code or any local ordinance: or A: To render him liable. Yet. A: Upon the taking of possession of the property and having Q: In the prosecution of the public nuisance.NOTES ON PROPERTY Kenneth & King Hizon (2A). without judicial proceedings. created it. If the conduct of the pursue at his election. writ executed by the sheriff at his expense. since the injurious effect of a nuisance is a XPN: under the special rule of Art. punished by the RPC. Q: What if they acted independently? Abatement without judicia Abatement without judicia proceedings. 700.NOTES ON PROPERTY Kenneth & King Hizon (2A). he has no cause of action against the creator of the nuisance. Q: Under what instance can extra-judicial abatement be applied? The remedy must be availed of only with the intervention of the district health officer. the mayor is directed by law to commence the civil RIGHT OF PRIVATE PERSON TO FILE AN ACTION ON action to eliminate a public nuisance. The district health officer shall determine whether A: The action must be commenced by the city or municipal or not abatement. Q: What is the effect of failure to comply with Art. 702. 703. A: It is valid in the exercise of police power. prisoner. general.UST Faculty of Civil Law ___________________________ Q: Is criminal prosecution available in case of private According to Dean Pineda. provided that he has suffered a particular harm or A private person may also file a civil action if the public injury and such harm is different from the harm caused to the nuisance is especially injurious to him. By way of exception. such action shall be commenced by the city or municipal mayor. and to him that public nuisance has become a A: No. if it is specially injurious to himself. the owner is The district health officer is charged with the duty to see to it not entitled to compensation. Accordingly. officer or that one or all of the remedies against a public nuisance are person destroying it is not liable for damages. A: Yes. It is based on ROLE OF DISTRICT HEALTH OFFICER AND OTHERS WITH necessity which must be present to justify its exercise. of. The defendant on conviction for maintaining a nuisance of a continuing character. He shall determine whether the third remedy is the best remedy against a public nuisance. aside from being sentenced to a penalty Q: What is the nature of such action? may be ordered also to abate the nuisance. Note: Art. only for public nuisance. is the best mayor. unless and until a private person nuisance? has sustained a special and definite harm from a public nuisance. Q: Is the remedy of injunction available? or at the suit of some proper officer or body as an authorized officer. 720? Is that a ground for the award for damages? Art. public nuisance is especially injurious to him. Ordinarily. Art. 702 does not empower the district officer to abate Art. And the municipality. and if he fails to do so. 701. availed of. private nuisance. a writ founded on the judgment may issue to the A: The action may be for injunction. abatement or for sheriff requiring him to abate the nuisance at the cost of the damages. RESPECT TO PUBLIC NUISANCE If property is destroyed or taken as a nuisance. The district health officer shall take care that one or all of the remedies against a public nuisance are availed A: No. A private person may file an action on account of a public nuisance. maintenance of a public nuisance. the nuisance is treated as private nuisance. it may be applied if the indictable nuisance is pressing or imminent.” nuisance becomes to him a private nuisance affecting him in a special way different from that sustained by the public in In such case. GR: Public nuisance must be abated in the name of the State. XPN: An individual who has suffered some special damage by reason of public nuisance may bring such suit for its Q: What is the basis for extra-judicial abatement? abatement. but a private person may also file an action if the remedy against a public nuisance. Q: How to commence the action? Art. Facultad de Derecho Civil 116 UNIVERSITY OF SANTO TOMAS . If a civil action is brought by reason of the a public nuisance to the exclusion of all other authorities. such public it should be “specifically injurious to him. A: It can only be applied if what is abated is a nuisance per se and NOT nuisance per accidens. without judicial proceedings. a ACCOUNT OF A PUBLIC NUISANCE private person is authorized to file a suit to abate a public nuisance. Rights must always be exercised with the assistance of the local police. 4. Any person injured by a private nuisance may A: abate it by removing. NUISANCE Art. or necessary. or if Q: Distinguish Art 703 and 704? necessary. By removing the thing which constitutes nuisance. Q: Does the law require prior giving notice to the owner of the nuisance? Estoppel applied in nuisance A: Yes. remedies against a public nuisance except for the absence of 6. 2. (2) That such demand has been rejected. Reasonable notice of intention to abate the nuisance must be given to the owner.NOTES ON PROPERTY Kenneth & King Hizon (2A). Demand has been rejected. 9. or doing unnecessary damage. there is a necessity of giving notice to such person in A person who consented. thousand pesos. A: and (4) That the value of the destruction does not exceed three 1. Abatement must be approved by the district health officer and executed with the assistance of the local Right to damages police. It may be exercised only in cases of urgent or REMEDIES AGAINST A PRIVATE NUISANCE extreme necessity. of public nuisance? Art. No breach of peace or unnecessary injury must be it is indispensable that the procedure for extrajudicial committed. Means employed must be reasonable. construction of a building and aware of the purposes for which it was established. (2) Abatement. without committing a 1. by destroying the thing which constitutes the same. Demand have been first made upon the owner or followed. the first remedy of criminal prosecution. Facultad de Derecho Civil 117 UNIVERSITY OF SANTO TOMAS . without judicial proceedings. 10. 8. an authority to continue the wrong. 5. The summary abatement should be resorted to The remedies provided for in the article are the same as the within a reasonable time. without committing a breach of the peace. is estopped from asserting that the Q: What are the requisites for the extra-judicial abatement structure is a nuisance against him. by destroying the thing which constitutes the nuisance. of the property to abate the nuisance. By destroying the thing without disturbing the peace CONDITIONS FOR EXTRAJUDICIAL ABATEMENT OF A PUBLIC of the community. 7. But it is necessary: person against a public nuisance while Art. 704 refers to an abatement of a public nuisance specially injurious to him (1) That demand be first made upon the owner or possessor without judicial proceedings. 704. abatement of a public nuisance by a private person be 3. Q: How could abatement be done? (3) That the abatement be approved by the district health officer and executed with the assistance of the local police. destroy the thing which constitutes the nuisance. permitted. possessor of the property to abate the nuisance. However. and 2. or if necessary. 705. Value of destruction does not exceed P3000. without committing a breach of the peace. The remedies against a private nuisance are: The article states what may be done in abating a public or private nuisance: the party injured may remove and if (1) A civil action. Only private rights are violated by the nuisnace. or doing unnecessary injury. After knowledge of the nuisance is acquired. 706. or doing A: The former refers to the filing of the action by a private unnecessary injury. A private nuisance only affects a few persons. 11. Any private person may abate a public nuisance which is specially injurious to him by removing. Property must not be destroyed unless it is really This remedy includes the reparation for past injuries and not necessary to do so.00. Must be specifically injurious to the person affected.UST Faculty of Civil Law ___________________________ Art. acquiscence in the order to enable him to abate the nuisance himself. breach of the peace or doing unnecessary injury. 12. and 13. damages constitution. 707. Title IX. c. relating to the ownership and other rights over immovable property. and the non-registration of the deed evidencing such transaction does not relieve the parties The article provides for two grounds to hold a private or thereto of their obligations thereunder. the official concerned Q: How much should be given as damages? Q: What is the object of registry? A: The amount of damages will depend on the evidence of A: It is the inscription and annotation of acts and contracts the property owner or possessor of the thing. Impossibility of abatement. Estoppel. Q: What do you mean by registration? Art. A: The purpose of registration is merely to notify and protect LIABILITY FOR DAMAGES IN CASE OF the interests of strangers to a given transaction. the act of recording or annotating remedy by unscrupulous parties and at the same time affords b. Q: What are the remedies available? Proceedings for registration of lands are IN REM A: He may go to court for the determination of the status of the property. A private person or a public official extrajudicially abating a nuisance shall be liable for damages: A: It means the entry made in a book or public registry of deeds. 708. A: Ownership of the legal title is not necessary to enable one It is the public repository of records of public documents to maintain a suit to prevent a threatened nuisance which affecting the title to lands in the provinces or city where the would disturb him in the peaceable use and possession of lands are located. A: It serves the dual purpose of providing a sort of deterrent NOTE: Register may refer to: against the improvident or unreasonable resort to the a. necessity what would otherwise constitute a (605) nuisance may be inflicted upon certain members of the community. public official extrajudicially abating a nuisance liable for damages Registration is useless when what is registered is insufficient to grant such right as in the case of fictitious or simulated Q: What is the purpose of this article? sale.under the pressure of public the ownership and other rights over immovable property.UST Faculty of Civil Law ___________________________ Where the nuisance was created or maintained intentionally. Jurisdiction is secured by the power of the court over the res. exemplary or punitive damages may be allowed. or maliciously. Replevin instituted and carried to judgment without personal service b. the book of registry the victim a civil remedy to recover damages without c. Non-existence of the nuisance. and A: It is the agency of government stationed in every province d.REGISTRY OF PROPERTY Available defenses Art. The Registry of Property has for its object the inscription or annotation of acts and contracts relating to a. He may ask for the following: A proceeding in rem dealing with a tangible res may be a. injunction (sale. destruction) upon claimants within the State or notice by name to those c. and not encounter any provision of either d. willfully. or (2) If an alleged nuisance is later declared by the courts to Q: What is the purpose of registration? be not a real nuisance. Facultad de Derecho Civil 118 UNIVERSITY OF SANTO TOMAS . Q: What is the Registry of Property or Register of Deeds? b. who may be EXTRAJUDICIAL ABATEMENT OF NUISANCE ignorant thereof. d. . the office concerned prejudice to such other remedies granted by law.NOTES ON PROPERTY Kenneth & King Hizon (2A). Public necessity. (1) If he causes unnecessary injury. or cities headed by a register of deeds under the supervision of the Land Registration Authority and the Department of Q: Is legal title necessary to enable to maintain a suit? Justce. recover proceeds outside of it. property on which he resides. does not validate or cure defective instrument. Q: What are the effects of registration? Art. 711. the Ship Mortgage Decree and relieve the parties of their obligation thereunder. operates as constructive notice. but the non. 710. The register or his representative may also be subpoenad to Effects of registration appear and testify in court and bring certain titles and other related documents. cancellation of inscriptions and annotations. c. For determining what titles are subject to A: inscription or annotation. It covers every person whose act. Q: Who are third persons? If it be wrong to publish the contents of the records. as well as the form. keeping the books in the Registry. The books in the Registry of Property shall be Q: What is the remedy of the registrar refuse to inscribe public for those who have a known interest in ascertaining document? the status of the immovables or real rights annotated or inscribed therein. therefore. or copy the records may exercise their event that the consulta is resolved in favor of the registrant. which are not duly inscribed or annotated in the Registry of Property shall not prejudice It is not the prerogative of registration officers having custody third persons. contract legislature and not the officials having custody thereof which or deed. which shall prevail? required fee. the Land Registration Act. The fact that the matter is office and the records under his custody and has some in consulta will be inscribed on the title involved.UST Faculty of Civil Law ___________________________ Art. examine. and the value of the 3. a. rights. 709. when it is clear that the purpose of the examination is Art. carry with it the power to prohibit. (607) A: The aggrieved party may request a formal order of denial and forthwith file a consulta with the LRA. the manner of 2. registration of the deed evidencing such transaction does not b. purpose of examinaion of a recorded act or transaction is not unlawful or arises from a sheer idle curiosity. NOTE: The law always tends to protect registered right to favor him who registers and. the registration shall prejudice those who have not registered. and other special laws shall govern. entries contained in said books. A: The unrecorded Deed of Sale. Q: In case of conflict between an unrecorded Deed of Sale of prior date and a recorded Real Estate Mortgage of the latter NOTE: Interested parties may secure upon payment of the date. The titles of ownership. BOOK III Facultad de Derecho Civil 119 UNIVERSITY OF SANTO TOMAS . except perhaps. Q: What is the effect of actual knowledge? Q: What do you mean by public? A: It is equivalent to registration it binds such person to the A: It is an all inclusive term. (606) of records to see that the information which the records contain is not flaunted before public gaze. immovable property. the provisions of the 4. and 1. (608a) Effect of lack of registration “Other special laws” may include special laws governing the Q: What is the effect of lack of registration? registration of movable property in a registry office A: The purpose of registration is merely to notify and protect Ex: the interests of strangers to a given transaction. certified true copies of titles and other records in the registry. does not vest title Mortgage Law. cannot bind property where it is legally ineffective. effects. or of other rights over unlawful. it is the A: It refers to persons who are not parties to the act. Chattel Mortgage Law. the Land Transportation and Traffic Code.NOTES ON PROPERTY Kenneth & King Hizon (2A). is called upon to devise a remedy. POWER OF REGISTER OF DEEDS AS CUSTODIAN OF REGISTRY BOOKS Q: What is consulta? The Register of Deeds has inherent power to control the A: It is a kind of appeal to the LRA. The effect discretion to exercise as to manner in which persons desiring of this inscription will be binding on the third persons in the to inspect. NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ DIFFERENT MODES OF ACQUIRING OWNERSHIP ownership. However, actual possession may only be exercised after delivery. PRELIMINARY PROVISION Real right v. Personal right Art. 712. Ownership is acquired by occupation and by intellectual creation. Q: What is a real right (Jus in re)? Ownership and other real rights over property are acquired A: It is the power of a person to obtain certain financial or and transmitted by law, by donation, by estate and economic advantages over a specific thing; a power intestate succession, and in consequence of certain enforceable against the whole world whether or not he contracts, by tradition. possesses the thing. They may also be acquired by means of prescription. (609a) Q: What is a personal right (Jus in personam)? Mode v. Title A: It is the power of a person to demand from another the fulfillment of a prestation to give, to do or not to do. Q: What is a mode? REAL RIGHT PERSONAL RIGHT A: It is the specific cause which produces them as a result of Creation the presence of a special condition of things, of the capacity Created both by title and Created by title, except when and intention of persons, and of the fulfillment of the mode. title is also the mode as in requisites established by law. succession. Created directly over a thing. It is the process of acquiring or transferring ownership. It Exercised through another directly produces a real right. against whom an action is brought. Q: What is title? Limit It is limited to usefulness, No such limitation A: It is the juridical act, right or condition which gives the value or productivity. means to their acquisition but which in itself is insufficient to Object produce them. Specific object and generally Covers all present and future corporeal. property of debtor. Applies It is not ordinarily sufficient to convey ownership, but gives a to incorporeal or intangible juridical justification for a mode; that is, it provides the cause things. for the acquisition of ownership. Serves merely to give an opportunity for the existence of a real right; meantime only a Subjects personal right exists. Definite active subject There is an active subject (owner). (creditor). There is a definite MODE TITLE passive subject (debtor). Indefinite passive subject Directly and immediately Serves merely to give the which is the whole world. produces a real right; occasion for its acquisition or existence; Enforceability Cause; Means; Enforceable against the Enforceable only against the whole world. original debtor. Proximate cause; Remote cause; Extinguishment The essence of the right The means whereby that which is to be created or essence is transmitted, Extinguished by loss or Not extinguished. Claim for transmitted. destruction. damages may still be instituted. Example: In a contract of sale, the sale is the title by the virtue of such title buyer may now compel delievery from the Q: What are the different modes of acquiring ownership? seller. It is the delivery or tradition which transfers ownership. Tradition is a mode. A: In succession, the title is the mode. Hereditary rights are 1. occupation; transferred from the moment of death of the decedent. 2. law; Delivery is not a condition precedent to transfer of 3. donation; 4. tradition as a consequence of a certain contracts; Facultad de Derecho Civil 120 UNIVERSITY OF SANTO TOMAS NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ 5. intellectual creation; 6. prescription; and As a consequence of certain contracts like sale, barter, 7. succession. assignment, simple loan or mutuum. Q: What are the different modes of acquiring other real Tradition alone does not confer ownership but a rights? consequence of contract comleted by tradition or delivery. A: NOTE: Not all contracts may result in the transmission of ownership like deposit or commodatum. 1. law; 2. donation; 1. Real tradition- actual or physical delivery if it is 3. tradition as a consequence of a certain contracts; personal property. If realty is involved then actual 4. prescription; and delivery is manifested by actual entry or occupying 5. succession. the land. Q: What are the classification of modes of acquiring 2. Constructive tradition ownership? a. Traditio symbolica- parties make use of a token or A: symbol to represent the thing delivered b. Traditio longa manu-by mere pointing of a property 1. original modes- independent of any pre-existing or with consent of the parties if the thing sold cannot preceding title or right of another: be transferred to the possession of the vendee at the time of the sale a. occupation c. Traditio brevi manu- when the vendee already has b. intellectual creation possession of the thing sold by virtue of another title c. acquisitive prescription d. Traditio constitutum possessorium- when the vendor continues in possession of the thing sold not 2. derivative modes- those which arise of are dependent as owner but in some other capacity upon pre-existing or preceding title or right of title of e. Quasi-tradition- exercise of the right of the grantee another person: with the consent of the grantor f. Tradicion por ministerio de la ley- delivery by a. donation operation of law b. succession g. Tradition by public instrument c. extinctive prescription d. tradition as a consequence of certain contracts Requisites of constructive delivery Q: Is registration a mode of acquirng ownership? Q: What are the requisites for a constructive delivery? A: No. it cannot confer ownership. A: 1. Right transmiyyed should have previosly existed in Q: Is accession a mode of acquiring ownership? the patrimony of grantor 2. Transmisison should be by just title A: No because it presupposes previous ownership of the 3. Grantor and grantee should have intention and principal thing. capacity to transmit and acquire 4. Transmission should be manifested by some act LAW which should be physical, symbolical or legal. Law as a mode of acquiring ownership should be interpreted Prescription to apply to situations where ownership is vested independently of the other modes of acquisition. Q: What is prescription? Art. 445- improvements on the land of another; A: It is a mode of acquiring ownership and other real rights Art. 447-alluvium; through the mere lapse of time and under conditions laid Art. 461- abandoned river beds; and down by law. Art. 681-falling fruits into the tenement of another. TRADITION Facultad de Derecho Civil 121 UNIVERSITY OF SANTO TOMAS NOTES ON PROPERTY Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________ Q: What are the 2 kinds of prescription? 2. which must be a Corporeal personal property, 3. which must be Susceptible of appropriation by nature Acquisitive Extinctive 4. The thing must be Without an owner Expressly vest the property Merely a statute of limitaion, 5. There must be an Intention to appropriate. and raises a new title in the it does nothing more than occupant bar the right of action of a Q: Distinguish occupation from possession. previous owner The act of the processor is The previous owner’s neglect A: the cause is the cause OCCUPATION POSSESSION Q: Is the acquisition of ownership or other real rights As regards acquisition of ownership through prescription retroactive? Mode of acquiring ownership Merely raises the presumption of ownership A: Yes. Once the period is completed, the new owner is when exercised in the considered as having acquired the thing or right from the concept of owner moment the period began. As to prpoperty involved Involves only corporeal Any kind of property Modes of extinguising ownership personal property As regards ownership of the thing by another a. Absolute extinguishment Requires that the object be The property may be owned 1. Physical loss or destruction without an owner by somebody 2. Legal loss As regards the intent to acquire There must be an intent to May be had in the concept of b. Relative –only when certain persons for others may acquire ownership a mere holder acquire their ownership As regards possession 1. Law May not take place w/o May exist w/o occupation 2. Succession some form of possession 3. Tradition As to period 4. Donation Short duration Generally longer 5. Abandonment As to leading to another mode of acquisition 6. Destruction of the prior title or right Cannot lead to another mode May lead to another mode‐ (fulfillment of resolutory condition, rescission, of acquisition prescription annulment, expropriation) 7. Prescription Q: What are the kinds of property acquired by occupation? A: 1. Animals that are the object of hunting and fishing Title I. - OCCUPATION 2. Hidden treasures-only if there is no known owner thereof. This is possible only if there is no known owner Art. 713. Things appropriable by nature which are without thereof. This is possible only if the treasure is founding an owner, such as animals that are the object of hunting and places or things without owners. fishing, hidden treasure and abandoned movables, are 3. Abandoned movbles- a thing is abandoned when: acquired by occupation. (610) a. The expectation to recover is gone (spes recuperandi) Q: What is occupation? b. The intent to return or have it returned is given up (spes rivertandi) A: Acquisition of ownership by seizing corporeal things that have no owner, made with the intention of aquiring them, Art. 714. The ownership of a piece of land cannot be and accomplished according to legal rules (Sanchez Roman). acquired by occupation. (n) It is a unilateral act through the material apprehension of a thing which is limited to those without an owner. Q: What is the reason for this? Q: What are the requisites of occupation? A: When the land is without an owner, it pertains to the State following the Regalian Doctrine. A: Q: What is the rule as to abandoned land? 1. There must be Seizure of a thing, Facultad de Derecho Civil 122 UNIVERSITY OF SANTO TOMAS Q: What is the rule as regards the finder when 2 or more No.D. another person. The special law which regulates hunting to protect animal life Art. Unlike other jurisdiction. delegation of the State’s authority to the corporation. The owner of a swarm of bees that went to another'’ land Technically. but conditions precedent to recovery. or after pre-existing right which is not present in abandoned pursuing the same. (611) man in private breeding places. Tolentino. The owner of a swarm of bees shall have a right to the treasure. Act. 715. he ceases to do so within the same property. What is contemplated here are pigeons and fish Art. 717.A. (614) On the other hand. Longer period of possession Shorter period is required Their occupation is regulated by special laws on hunting and fishing.NOTES ON PROPERTY Kenneth & King Hizon (2A). indemnifying the possessor of the latter for the damage. 491. period. No absurdity may arise because privately owned limitation. This period having expired. No. lands reverted back to the State become the patrimonial property of the State which is susceptible of acquisition Art. it pertains tp the Occupation of domesticated animals State. being in this case a finder. pursue them to another's land. they could not be acquired by prescription shall lose ownership if he has not pursued the same within because prescription presupposes the extinguishment of a two consecutive days after it left his property. 438 of this Code. He who by chance discovers hidden treasure in are Act No. (612a) Facultad de Derecho Civil 123 UNIVERSITY OF SANTO TOMAS . in the Philippines. 718. the possessor or owner of the land may occupy or retain the bees Since the Code Commission inserted this article on the supposition that when land is abandoned. even the state cannot acquire them by occupation. 2590 as amended by Act. The discovery of the hidden treasure must be by chance- there must be no deliberate inrtention or design to search for Art. or ceases to do so within two consecutive days. they shall pertain to him who has caught and kept them. strangers are involved? Hunting and fishing may be regulated by a municipal A: The one who actually struck the thing (ground or anything) corporation or local government unit under a provision of law or found the spot. If the owner has not pursued Q: What is the rule if the finder is given an express the swarm. In such a case. the special Law governing fishing is P. Pigeons and fish which from their respective through acquisitive prescription. 4003 another's property shall have the right granted him in article and C. permission by the owner to search? the possessor of the land may occupy or retain the same. breeding places pass to another pertaining to a different owner shall belong to the latter. whilch exposed the treasure to view is the or authority granted by Congress. The owner of domesticated animals may also claim them A: The finder is not entitled to the shre in the treasure unless within twenty days to be counted from their occupation by the parties so stipulated.UST Faculty of Civil Law ___________________________ A: According to Sen. No. The right to hunt and to fish is regulated by special considered as domesticated animals subject to the control of laws. been enticed by some article of fraud. 3770. (613a) A: Occupation of pigeons and fish PRESCRIPTION OCCUPATION Derivative mode—somebody Oringinal mode-no previous The article does not refer to wild pigeons and fish in a state of else was the owner owner liberty or that live naturally independent of man. there is no law to the effect that private lands abandoned by its owners A domesticated animal which has not strayed or been automatically revert back to the State. The subsequently abandoned as implied from the express word of period of two days and twenty days are not periods of the law. an absurdity may arise from a literal interpretation of this article. 716. provided they have not Q: Distinguish prescription from occupation. Neither does the provision J. No. Paras: This article is applicable to lands belonging to the apply to a case where a person has found a domestic animal State without private owners and those previosuly owned but and kept it for a number of years not knowing its owner. 704 otherwise known as the Fisheries Decree of 1975. abandoned cannot be acquired by occupation by a person to whose custody it was entrusted. Lands privately owned ans Occupation of a swarm of bees abandoned subsequently will perpetually become res nullius. If the movable cannot be kept without deterioration. 2.NOTES ON PROPERTY Kenneth & King Hizon (2A). tv 2. Six months from the publication having elapsed without the Q: What is the consequence of violating the article? owner having appeared. 718 because A: the discovery was not by chance. 720 which is publication. the publication of the intended auction sale. Facultad de Derecho Civil 124 UNIVERSITY OF SANTO TOMAS . or its value. 720.the thing found or the The finding shall be publicly announced by the mayor for value of its proceeds if there was auction sale shall be two consecutive weeks in the way he deems best. If the thing cannot be kept without deterioration.the mayor because the contract is the law between the parties. must keep it in custody until the previous possessor appears in time to claim the property or until it is awarded to the If there is no contract then. applicable leaving to the court the reasonable value of the work done by the finder. shall be awarded to the finder. Q: What is the obligation of the owner who appeared? Finder’s keeper law (U. 1. the thing found. and the manner he may deem best (newspaper. obliged. Tolentino. then he shall receive only the amount stipulated If the thing can be kept without deterioration. To give reward to the finder-amounting to the 1/10 treasure. 1. 719. to reimburse the expenses. The finder and the owner shall be A: The finder shall be guilty of the crime of theft. 1/10 of the sum price of the thing found. If the owner should appear in time. one-tenth of the control of a person but is now without any possessor.it should be sold at public auction 8 days after the publication following Art. it is not abondoned property. it extends to the successor who has knowledge of the finding. sum or of the price of the thing found. the finder shall immediately deposit it with the Award of the finder mayor of the city or municipality where the finding has taken place. what is the duty of the mayor? According to Sen. which is not treasure.) A: The finding of the movable may be by chance or by search as the law did not make any distintion. If the previous possessor is known-return it to the Q: Is the finder entitled to anything for his services? previous possessor. unlike in hidden 1. Q: In such case. while the finding is not by chance the finder should be given a share on the basis of A: The mayor must in turn publicly announce the finding in implied contract or principle of unjust enrichment. The permission is to be interpreted to be a renunciation of the right of the land owner and so the finder gets all. distinction: Preservation of the thing If the finder was engaged for the investigation of the propety for a fee.S.UST Faculty of Civil Law ___________________________ Q: What is the rule if the finder is given an express permission by the owner to make an investigtaion? Q: What are the duties of the finder? A: If treasure is found he is not covered by Art. According to Dean Pineda. it shall be sold at public auction eight days after the A: The finder shall receive the award under Art. awarded to the finder deducting the expenses for publication. there must first be a announcement). (615a) The obligation to return is not limited to the first finder. Q: What is a lost thing? Art. he shall be A:It is the one previously under the lawful possession and obliged to pay. (616a) However. as the case may be. the law on unjust enrichment is finder. who need not be the owner. as a reward to the finder. of the sum or value of the thing. If the owner or possessor did not appear after 6 months- there being an implied abandonment. If he does not know its previous possessor- A: There are 2 views on the matter: immediately deposit it with the mayor of the city or municipality where the thing was found. or Q: What if the owner has appeared? without expenses which considerably diminish its value. Whoever finds a movable. must return it to its previous possessor. If the latter is unknown. shall have the ownership of 2. scientific or other work. 3. inventors. he may not agree with the burden 1. The State shall protect and secure the exclusive accepted. Donation is an act of liberality whereby a person (3) The painter. the court may authorize their publication or special power of attorney otherwise. Art. who accepts it. The author and the composer. donation shall be void. mentioned in Nos. (618a) (4) The scientist or technologist or any other person with regard to his discovery or invention. Once a donation is Section 13. Intellectual property . (n) Q: What is the reason behind the above rule? Dual interests or property rights in the letter: A: The donee may not want to accept the donor’s liberality or if the donation is onerous. 725. they partake of a will. A: It may be made by the donee himself or thru an agent with However. consisting of thoughts and the imposed. it is necessary to make the donation effective. Facultad de Derecho Civil 125 UNIVERSITY OF SANTO TOMAS . NATURE OF DONATIONS historical.UST Faculty of Civil Law ___________________________ 2. sculptor. dissemination if the public good or the interest of justice so requires. . The material or physical thing. (2) The composer. Special laws govern copyright and patent. and other gifted donee except on grounds provided by law. or other artist. acceptance is made after donor’s death because over the product of his art even before it is copyrighted. in the same manner as any product of the mind. the following persons Title III. as to his musical composition.INTELLECTUAL CREATION Art. (Sec. artists. particularly when beneficial to the people. dramatic. The contents of letters are objects of a right of intellectual 3. 1 1. 721. ideas and their form of expression contained in the letter. To reimburse the expenses for publication. Art. legal. their rights are governed by 4. The 1987 Constitution) A: Art. 722. which is the paper and the impression made thereon by the mechanical means of writing that has been employed. Donor must have the capacity to make the donation. Q: What is the effect of donation made to an unborn child? 2. . 13. He must have donative intent (animus donandi).DONATION acquire ownership: CHAPTER 1 (1) The author with regard to his literary. Once their works are published.NOTES ON PROPERTY Kenneth & King Hizon (2A). for such period Q: What are the requisites for a valid donation? as may be provided by law. with respect to the disposes gratuitously of a thing or right in favor of another. 723. property. (n) Q: How is donation perfected? State policy A: It is perfected from the moment the donor knows of the acceptance by the donee (Article 734). citizens to their intellectual property and creations. Letters and other private communications in writing are owned by the person to whom they are Q: Who makes the acceptance? addressed and delivered. 724. it cannot be revoked without the consent of the rights of scientists. the lifetime of the donor and of the donee in case of donation inter vivos. sculptor or other artist shall have dominion causa. whereas in case of donation mortis The painter. There must be delivery in certain cases. (429a) Title II. The scientist or technologist has the ownership of his Q: Is acceptance necessary? discovery or invention even before it is patented. Donee must accept or consent to the donation during the Copyright laws. and 2 of the preceding article. their creations even before the publication of the same. (n) A: Yes. philosophical. Art XIV. By intellectual creation. Art. To reimburse the finder-of the necessary expenses for the preservation and location of the thing. product of his art. but they cannot be published or disseminated without the consent of the writer or his heirs. b. (619) death of the donor. they shall follow the form of donations. 3. No person may give bby way of donation more than what he may give by will. merits.the burdens.the cause is the liberality of the donor. A: It is the charge or burden imposed in a modal donation e. 742).2 because of future charges or burdens to be imposed Modal donations on the donee.the past benefitsm merits. Kinds of donation Art.those which take effect only upon the there is also a donation. This is not really donation and the form follows that of contracts.1 reward future services. The form shall be that of donations regardless of the value of the past services compared to the value of Q: What do you mean by “not demandable debt”? the donation. When a person gives to another a thing or right on 1. 726. The mode or burden is a mere restriction on the simple. (n) equal in value to that of the donation. It does not affect the rights of the donee. or when the gift imposes upon the donee the donor. Note: Illegal or impossible conditions in simple and remuneratory donations shall be considered as not Q: What is a mode? imposed. charges or services are imposed. Donation cannot comprehend future property A: Donations made to incapacitated persons shall be void except future husband and wife (Art. and a person who is interposed. and a burden which is less than the value of the thing given. Inter vivos. b. provided. The services do not constitute a demandable constitute a demandable debt. Simple donation. Remuneratory donations 2. Remuneratory (of the 2 kind) modal donations.those which take effetc during the lifetime of demandable debt.the enforceable against the donor. 2. A: Those whose consideratuin and purpose is to remunerate st c. debt. According to the time of taking effect account of the latter's merits or of the services rendered by him to the donor. or c. purpos is to: Ex: a person who has saved another from drowning c. benefit conferred upon the donee. and Art. 1. Donee must reserve sufficient means for his support Q: What is the effect of donation made to incapacitated and for his relatives who are entitled top be persons? supported by him. alrady rendered by purpose is to reward past services with no strings the donee to the donor. According to the motive or cause Q: What is a remuneratory donation? a. certain conditions the fulfillment or non-fulfillment of which affect the rights of the donee. Remuneratory (of the 1 kind of pure renumeratory). the same does not attached.UST Faculty of Civil Law ___________________________ A: Donations made to conceived and unborn children may be accepted by persons who legally represent them if they were A: already born (Art.NOTES ON PROPERTY Kenneth & King Hizon (2A). A: It means services rendered did not create any obligation nd d. charges or burdens is less than the value of the donation. provided they do not constitute a a. Illegal or impossible conditions in simple and remuneratory donations shall be considered as not f. Effect of Illegal or impossible conditions Q: What are the limitations upon property which may be donated inter vivos? Facultad de Derecho Civil 126 UNIVERSITY OF SANTO TOMAS . 84 of the though simulated under the guise of another contract or thru Family Code). The form shall follow A: They are donations which impose a charge or a burden on the form of contracts if it is onerous but if the same is the donee. Mortis causa. Q: What are modal donations? The value of the future services. 727.donations which are subject to which is lesser than the value of the thing donated. Conditional donations. Onerous donations. services. in order to avoid uncertainty Art. Mortis causa A donation subject to a resolutory condition takes effect INTER VIVOS MORTIS CAUSA immediately but shall become inefficacious upon the Takes effect independently Takes effect upon death of happening of the event which constitutes the condition. does not destroy the nature of the act as a donation inter vivos. imposed. (620) donation inter vivos. 730. remunerative. When the donor intends that the donation shall take effect during the lifetime of the donor. Donations which are to take effect inter vivos shall Must comply with the Must comply with the be governed by the general provisions on contracts and formalities required by Arts. there is a the Title on Succession. The remuneratory donations referred to by the article are the donation to take effect during his lifetime but he imposes the modal donations or those which impose “upon the donee a suspensive condition which may or may not take place a burden which is less than the value of the thing given”. unless the donor provides otherwise. whether or not subject to any condition or term. 733. Art. 728. 732.UST Faculty of Civil Law ___________________________ 1. The fixing of an event or the imposition of a RULES GOVERNING ONEROUS DONATIONS OR suspensive condition. unless a 1. (n) Art. Donations with an onerous cause shall be as to the ownership of the property subject of a deed. The fruits of the property from the time of the acceptance of the donation. When a person donates something. Donations which are to take effect upon the death of the donor partake of the nature of testamentary Art. (n) DONATION INTER VIVOS SUBJECT TO A RESOLUTORY CONDITON Inter vivos v. When donation rendered void. When condition is not deemed imposed. regards that portion which exceeds the value of the burden. 729. The donation is after the donor’s death does not change the nature of the act considered simple. The article contemplates a situation where the donor intends 3. formalities required by law obligations in all that is not determined in this Title. it shall be governed by the provisions on donations. the donation is still inter vivos. shall pertain to the donee. 2.NOTES ON PROPERTY Kenneth & King Hizon (2A). Generally irrevocable during Always revocable donor’s lifetime Art. governed by the rules on contracts and remuneratory donations by the provisions of the present Title as regards The nature of donation is not determined by the title given to that portion which exceeds the value of the burden it by the donor but by what is expressed therein. this shall be a donation inter vivos. In case of doubt the conveyance shall be deemed an inter vivos rather than mortis causa. may be contrary intention appears.being contractual in nature. as beyond his lifetime. DONATION INTER VIVOS SUBJECT TO 2. (n) considered a donation to the extent that the value of the thing sold exceeds the price paid. The article makes the rules of contract directly applicable SUSPENSIVE CONDITION to onerous donations and remuneratory donations as to the onerous portions therof. modal Donor’s tax is payable Estate tax is payable and onerous. and shall be governed by the rules established in resolutory condition of the donor's survival. They include the simple. 1183 The exception is when the donor really intended that the donation should take effect after his death. though the property shall not be delivered till after the donor's death. as a donation inter vivos. Facultad de Derecho Civil 127 UNIVERSITY OF SANTO TOMAS .the rule on The fact that the event happens or the condition is fulfilled testamentary disposition is followed. which may take place beyond the ONEROUS PORTIONS OF DONATIONS natural expectation of life of the donor. the rule applicable would be found in art. of the donor’s death donor Title conveyed to the donee Title conveyed upon donor’s Even if the donation is subject to the resolutory condition of before donor’s death death the donor’s survival. subject to the provisions. 731. (621) 748 and 749 of the Code for the execution of wills Acceptance during donor’s Acceptance should ne made Donations inter vivos are donations of property that are not lifetime after donor’s death mortis causa. (622) Art. Alienations by onerous title such as sale. For natural persons. Making of donation shall be construed to mean Note: Making of donation shall be construed to mean perfection. All persons who may contract and dispose of their Guardians and trustees cannot be donors of their ward’s property may make a donation. actually or constructively.NOTES ON PROPERTY Kenneth & King Hizon (2A).must be made during the lifetime children may be accepted by those persons who would legally of the donor. it is voidable because the consent of the in consideration of services rendered by the donee to the donor is defective. is not absolute. 2.UST Faculty of Civil Law ___________________________ 4. As long as he is not specially disqualified by law. he should be at the age of majority. (n) DONATION BY A GUARDIAN OR TRUSTEE OF WARD’S PROPERTY CHAPTER 2 PERSONS WHO MAY GIVE OR RECEIVE A DONATION 1. If the donor revokes the donation before learning of the Art. for juridical persons. Q: What are the requirements to be a donor? 2. The donation is perfected from the moment the Q: May an unborn child be a donee? A donor? donor knows of the acceptance by the donee. the same must be value of the burden. (624) properties for the simple reason that they are not the owners of the same. If a burden is imposed. with respect to the b. donation is null and void. (n) mode of alienation of property. Notice of acceptance – perfection takes place. donations made to conceived and unborn 1. Necessity of acceptance. Q: When is the possession of capacity to contract by the donor determined? Q: Explain the concept of capacity under this article. donation is permitted notwithstanding that the he may make a donation trustee receives nothing in exchange directly. capacity to contract and. represent them if they were already born. Q: What is the reason for this? Art. (Art. The donor's capacity shall be determined as of the A: Donation inter vivos are contractual in nature and are time of the making of the donation. NOTE: A donee need not be sui juris. Thereis no burden imposed on remuneratory donations. 4. PERFECTION OF DONATION As a donee. (623) A: An unborn child may be a donee but not a donor. Guardians and trustees cannot donate the acceptance by the donee. to the donor. NCC) of donation. 737. authorized under its articles to donate. 734. Revocation before perfection – once it is perfected it because it is essential for a person to be able to make a cannot be revoked without the consent of the donee except donation. perfection. he may accept donations Facultad de Derecho Civil 128 UNIVERSITY OF SANTO TOMAS . Where donation is onerous: A: The article requires that the donor must have both the: a. All those who are not specially disqualified by law therefor may accept donations. not from the time of acceptance by the donee but from the time it is made NOTE: If the conceived child did not become a person. the capacity to dispose of his property in order that trustee. property entrusted to them. there is no donation. the known. donor. it becomes onerous as regards the the other hand. 5. On 6. 738. Q: What is the rule with regard the done? Art. Where donation is simple: Art. 737. Art. An unborn child cannot be a donor 3. (625) A: All those who are not specially disqualified by law therefore may accept donations. with complete legal capacity to bind himself by contract. Modal donations are to be distinguished from the NOTE: If donation is made by a person with restricted remuneratory donations proper which consist of those made capacity. A: His capacity shall be determined as of the time of the A: Capacity shall be determined as of the time of the making making of donation. it is a mode of alienation of property. then. however. The prohibition. if the donation is onerous and is beneficial to the benefiaciary. Moreover. 736. on grounds provided by law. 735. he must have full civil capacity. the action for declaration of nullity may be brought by the spouse of the donor or donee. 674a) Art. 919. his or her spouse. (1) When a child or descendant has been found guilty of an attempt against the life of the testator. or ascendants. A: The article is based on considerations of morality and public policy.NOTES ON PROPERTY Kenneth & King Hizon (2A). 1. even if the testator should die after the approval thereof. in consideration thereof. Incapacity to succeed by will shall be applicable to found to be false. 2012 provides that “any person who is forbidden from Art. The following are incapable of succeeding: accusation has been found groundless. The prohibitions mentioned in the article apply (6) The loss of parental authority for causes specified in this Code. 921. the church. Q: What is the reason for this disqualifications? (5) When the parent or ascendant by fraud. children and descendants. Art. or attempted against their (3) Those made to a public officer or his wife. (3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved. Alien corporations as donee of lands (7) When a child or descendant leads a dishonorable or disgraceful life. community. or undue influence cause the testator to make a will or to change one already made. order. In the case referred to in No. Those disqualified under Art. by the child or descendant. (7) The refusal to support the children or descendants without justifiable cause. The prohibitions mentioned in article 739. 1027. descedants virtue. The following shall be sufficient causes for the disinheritance of (6) Unjustifiable refusal to support the children or the other spouse. or institution to which such priest or minister may belong. during the same period. concerning donations inter vivos shall apply to testamentary provisions. and the accusation has been Art. descendants.UST Faculty of Civil Law ___________________________ (6) Maltreatment of the testator by word or deed. Art. daughters to live a corrupt or immoral life. (n) accusation has been found to be false. violence. (756. 674a) Art. legitimate as well as illegitimate: 855. NOTE: The term wife in the 3rd paragraph shall be interpreted to mean spouse so as to include the husband. (n) (3) When the spouse by fraud. 853. 740. parents or ascendants. any Facultad de Derecho Civil 129 UNIVERSITY OF SANTO TOMAS . 674a) (1) Those made between persons who were guilty of Art. violence. (756. if the preponderance of evidence in the same action. intimidation. 739. ABSOLUTE DISQUALIFICATION (4) When the spouse has given cause for legal separation. according to said article. cannot make any donation to him. if the Art. intimidation. to testamentary provisions and to life insurance. (3) When the parent or ascendant has accused the testator of a crime for and the guilt of the donor and donee may be proved by which the law prescribes imprisonment for six years or more. whether legitimate or illegitimate: (2) Those made between persons found guilty of the same (1) When the parents have abandoned their children or induced their criminal offense. 854. nevertheless. (8) An attempt by one of the parents against the life of the other. (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant. (756. and ascendants. 919. intimidation. (2) When the parent or ascendant has been convicted of an attempt against the life of the testator. The following donations shall be void: (8) Conviction of a crime which carries with it the penalty of civil interdiction. degree. unless there has been a reconciliation between them. (4) When a child or descendant by fraud. or ascendants. or the minister of the gospel who extended spiritual aid to him concubinage with the spouse of the testator.” (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more. 1028. (1) The priest who heard the confession of the testator during his last (3) When a child or descendant has been convicted of adultery or illness. Art. a. The following shall be sufficient causes for the disinheritance of adultery or concubinage at the time of the donation. his or her descendants. or ascendants. chapter. 920. donations inter vivos. his or her spouse. RELATIVE INCAPACITY (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more. violence. (n) (5) When the spouse has given grounds for the loss of parental authority. or undue (2) The relatives of such priest or minister of the gospel within the fourth influence causes the testator to make a will or to change one already made. (4) When the parent or ascendant has been convicted of adultery or DONATIONS VOID ON MORAL GROUNDS concubinage with the spouse of the testator. descendants. The following shall be sufficient causes for disinheriting a spouse: receiving any donation under Art. organization. 739 b. or undue influence causes the testator to make a will or to change one already made. by reason of his office. 739 cannot be named (1) When the spouse has been convicted of an attempt against the life of beneficiary of a life insurance policy by the person who the testator. or from revoking one already made. or attempted against their virtue. sister. (757a) concerning the sale of the same thing to two or more Art. should live for at (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more. testator. brother. such as those referred to in arts. if the child never possessed juridical personality. spouse. Donations made to conceived and unborn children ascendant. persons. after being born alive. 742. the spouse. unless the authorities have already taken action. Minors and others who cannot enter into a contract may become different persons. intimidation. his or her spouse. or if. this prohibition shall not apply to cases wherein. it is clear that the donee may not validly accept a double donation. though simulated under the guise of another contract or through a person who is interposed. Donations made to incapacitated persons shall be accusation. The article applies both to simple and onerous donations. 741. Donations of the same thing to two or more had knowledge thereof at the time he made the will. conceals. 739 and will. 1032. Q: What is the rule in case of a double donation? Facultad de Derecho Civil 130 UNIVERSITY OF SANTO TOMAS . parents. Otherwise. 752.NOTES ON PROPERTY Kenneth & King Hizon (2A). such acceptance must be made by the parents A: When the same thing has been donated to two or more or legal representative. having knowledge of the violent death of the and void. or any one claiming under such witness. or represent them if they were already born. the donation is null (4) Any heir of full age who. should fail to report it to an officer of the law within a month. or that the child. if the accusation has been least 24 hours (if it had an intra uterine life of less than 7 found groundless. requiring acceptance through the parents or legal representative is the lack of capacity of the donee to give Like in instances of double sale. void. uterine life) 2. 753. 1033. (627) children. A: (2) Any person who has been convicted of an attempt against the life of the 1. associations and corporations not permitted by law to acceptance must be made by those persons who would inherit. there is no obligation to make an Art.UST Faculty of Civil Law ___________________________ provision made by the ward in favor of the guardian when the latter is his Art. the child be born alive later (if it had a normal intra testator. surgeon. or children. 744. 743. Art. donation although it imposes no burden. or spouse. alters the latter's will. 674a) the guise of another contract or through an intermediary. 754a) legally represent them if they are already born. (756. or undue influence should cause the testator to make a will or to change one already made. descendants. The cause of unworthiness shall be without effect if the testator Art. Art. (n) donees but acceptance shall be done through their parents or legal representatives. or who supplants. Article 1544 applies in case of consent. (745. (628) (5) Any person convicted of adultery or concubinage with the spouse of the testator. If the reason for sales of the same thing to two or more different vendees. violence. The following are incapable of succeeding by reason of unworthiness: Q: What are the requisites for a valid donation to an unborn? (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life. (626a) DONATIONS OF THE SAME THING TO DIFFERENT DONEES DONATIONS TO MINORS AND OTHERS WITHOUT “DOUBLE DONATION” CAPACITY TO CONTRACT The article expressly makes applicable by analogy the rules on The article does not make any distinction. or 740. 673. shall be valid. descendant. or ascendants. there beong no donee. Q: When is there double donation? In any case. he should condone them in writing. health officer or druggist who took care of the testator during his last illness. nurse. DONATIONS TO INCAPACITATED PERSONS (6) Any person who by fraud. Donations to such persons are void even if simulated under (8) Any person who falsifies or forges a supposed will of the decedent. parents. according to law. having known of different donees shall be governed by the provisions them subsequently. DONATIONS TO CONCEIVED AND UNBORN CHILDREN (5) Any physician. when a formal or written acceptance is required by the donor. The (6) Individuals. may be accepted by those persons who would legally (4) Any attesting witness to the execution of a will. The incapacity refers to persons specially disqualified by law (7) Any person who by the same means prevents another from making a to become donees. months). 746. the donation and the acceptance shall be Art. there must be simultaneous delivery of the thing or of the Q: What is the reason for the provision? document representing the thing donated. the acceptance must always be made in writing. Person who presents oldest title in good faith Art. the property donated is immovable. 000 or less. a. If made in writing. others who may not do so by themselves. otherwise. value of property is P5. If the value of the personal property donated exceeds five thousand pesos. first to possess in good faith both instruments that such notification has been made is 3. the donation does not take effect. (633) DUTY OF PERSON WHO ACCEPTS IN REPRESENTATION OF THE DONEE FORMALITIES FOR DONATION OF IMMOVABLES Facultad de Derecho Civil 131 UNIVERSITY OF SANTO TOMAS . And that the attempt to An oral donation requires the simultaneous delivery of the donate the property for the second time around. Immovable – donation but in as separate public instrument. 748. A: If the donor dies before he learns of the acceptance. value of property exceeds P5. 745. specifying acceptance? therein the property donated and the value of the charges which the donee must satisfy.. acceptence is made through the parents.the donation and on such grounds provided by law such as inofficiousness. or made in writing. 749.UST Faculty of Civil Law ___________________________ Requisites: A: The rule on double sale under Article 1544 shall be applicable: 1. otherwise. it must be made in a public document. public instrument. the donation shall be void. or authorized agent of the donee. The donation of a movable may be made orally or Justice Vitug & Dean Navarro: This provision is problematic in writing. First to register in good faith The requirement of notification of the donor and notation in 2. shall be obliged to make the notification and notation of which Article 749 If the acceptance is made in a separate instrument. Art. The acceptance may be made in the same deed of donation or in a separate public document. No inscription & no possession in good faith – necessary for the validity and perfection of the donation. If made orally. 747. legal representative. the donor thing or of the document representing the right donated. would have no right to effect donation as he is no longer the owner of the property. (n) orally or in writing. Persons who accept donations in representation of unless it is done during the lifetime of the donor. through an authorized person with a special power for the (632a) purpose.NOTES ON PROPERTY Kenneth & King Hizon (2A). the donation is valid although there is no A: The donation is personal between the donor and the simultaneous delivery. 1. or with a general and sufficient power.000.it may be made the donor and of the donee. Art. donee(Code Commission). Acceptance must be made during the lifetime of 2. and this step shall be noted in both instruments. 3. The donee must accept the donation personally. (631) donor shall be notified thereof in an authentic form. Nor is it necessary that the acceptance be made in the same deed of donation. the donation shall be void. The failure of the donee to comply with charges imposed in the donation and the acceptance need not be made in a donations or by reason of ingratitude. (630) FORMALITIES FOR DONATION OF MOVABLES Q: What are the rules for the donation of movable properties? BY WHOM ACCEPTANCE IS MADE A: A valid donation once accepted becomes irrevocable except 1. In order that the donation of an immovable may be Q: What if the donor dies before he learns of the valid. Movable – Owner who is first to possess in good faith 2. No inscription. the acceptance is not made in the same deed of b. but it shall not take effect Art. as the Civil Code Commission failed to remember that donation is different form sale. the speaks. The donations may comprehend all the present A: No. Donations cannot comprehend future property. 2. acceptance of the donation in a separate instrument. A: 1. b. or part thereof. donation propter nuptias. and of all relatives who. the acceptance by the donee must be in a public Q: What do you mean by “present property”? document. d. The donor is not yet the owner of said property. person cannot give what he does not own. and 3. satisfy. even if not yet delivered. A property of the donor. It is merely reducible to the extent that the and the charges. which the donee must support to himself and his relatives is impaired or prejudiced. the fact that such notification has been made must be noted in both instruments A: 1. it must be done during the lifetime of the donor. A: “Present property” means property which the donor can e. the property cannot be disposed of by donation.NOTES ON PROPERTY Kenneth & King Hizon (2A). c. in full ownership or in usufruct. donation shall be reduced in petition of any person affected. donation and acceptance are in separate Q: What is the standing of the donation where the donor did instruments not reserved property or assets for himself sufficient for his support and all his relatives legally dependent upon him? a. must be in a public instrument or document. 750. more than acceptance for before such knowledge. which the donee must satisfy could dispose of at the time of the donation. NCC) By future property is understood anything which the donor Q: What do you mean by relatives? cannot dispose of at the time of the donation. provided he reserves. (636) governed by the rules on obligations and contracts. donation mortis causa. there has been no he may give or receive by will. b. perfection as yet of the donation. but not all future the acceptance of the donation. if any. Future inheritance like future supported by the donor. 752. The provisions of Article 750 notwithstanding. Facultad de Derecho Civil 132 UNIVERSITY OF SANTO TOMAS . The provision applies where the donation imposes upon the done RESERVATION OF SUFFICIENT MEANS FOR a burden which is less than the value of the thing given SUPPORT OF DONOR AND RELATIVES because it requires that the public document must specify the value of the charges that the donee must satisfy A donor may donate all his present property or part threof provided he reserves sufficient property in ownership or in Q: What are the rules for the donation of immovable usufruct for the support of himself and of all relatives who properties? are entitled to be supported by him at the time of the perfection of the donation. the donor must be notified in authentic form of the rightfully dispose at the time of the donation. by way of donation. may be (634a) alienated by the heir because hereditary rights are transmitted from the moment of the death of the decedent. are by law entitled to be property is future inheritance. 751. must be in a public instrument or document A: The donation may cover all present property of the donor. at the time of NOTE: Future inheritance is future property. no this really refers to relatives at the time knowledge of the person may give or receive. 2. Donation and acceptance are in the same Q: What properties may be donated? instrument a. (635) A: The law states relatives at the time of the acceptance but Art. 777. (Art. the instrument must specify the property donated A: It is valid.UST Faculty of Civil Law ___________________________ The donation shall be inofficious in all that it may exceed The article does not apply to onerous donations which are this limitation. Without such reservation. sufficient means for the support of himself. if any. Q: What are the exceptions to this? f. Art. However. the instrument must specify the property donated Present property refers to property of the donor which he and the charges. onerous donations CHAPTER 3 EFFECT OF DONATIONS AND LIMITATIONS THEREON Q: May future properties be donated? Art. accrued inheritance. the testamentary disposition with respect to the amount thereof. the donor must also 3. on the other hand. (637) DONATION WITH RIGHT TO DISPOSE OF PART OF OBJECT DONATED. 2. But the limitation is enforceable only after Warranty exists when the death of the donor because it is only then when it can be determined whether or not the donation is inofficious. is not obliged to warrant the Q: What is the basis for this? things donated. The limitation applies when the donor has forced or compulsory heirs. otherwise. 3. even if the donation is simple or remunerative. he need not reserve. if warranty is expressly made. the donation is onerous. than he can give by will and a person may not receive by way of donation more than what the donor is allowed by law to Hidden defects give by will. the donor reserve enough of his property to pay off his debts is liable for eviction or hidden defects in case of bad faith contracted before donations. LIMITED TO WHAT Eviction DONOR MAY GIVE BY WILL Whenever by final judgment based on a right prior to the sale Article 752 makes applicable to donations the limitation on or donation or an act imputable to the vendor or donor. 1. Aside from the reservation of support. or of some amount which shall be a charge thereon.NOTES ON PROPERTY Kenneth & King Hizon (2A). RESERVED NOTE: Donation is presumed to be in equal shares The donor may reserve the right to dispose of some of the General rule: there is no Accretion in donation things or part of the thing donated or some amount or income thereof. the donor is Payment of existing obligations not liable for eviction or hidden defects. save when the donation is onerous. donor. The claims of the donor’s own family should not be disregarded The donor shall also be liable for eviction or hidden defects 2. unless the donor has Art. 4. otherwise the donation shall be inofficious and shall be reduced with regard tothe excess. The donee is subrogated to all the rights and keeping with the capacity of the family. in which case the donor shall be liable for eviction to the A: concurrence of the burden. 1. The father of a big family should reserve an amount in case of bad faith on his part. and transportation in Art. 754. If a donor is a person who earns sufficient income from 1. presumption that the donation was made to defraud 4. 753. otherwise provided. and the XPNS: Facultad de Derecho Civil 133 UNIVERSITY OF SANTO TOMAS . if the contrary has not been provided by the donor. donation to spouses. the donor is in bad faith. medical attendance. (638a) sufficient for those he may be called upon to support. it is understood to be in equal shares. Therefore. jointly. or 2. the property or amount reserved donations made to the husband and wife jointly. which in case of eviction would pertain to the donor. dwelling. the donor is liable on his creditors. Those which are not patent upon a physical examinations of the object donated. warranty but only to the extent of the burden. may be reserved by the donor. The donation is actually conditional. AMOUNT OF DONATION. (639) whom there shall be a right of accretion. and there shall be no right of accretion among them. 3. there is a on his part. actions which in case of eviction would pertain to the donor. 755. otherwise provided by the donor A: Comprises of everything indispensable for subsistence. because the donation is gratuitous. if the donation is onerous. vendee or donee is deprived of the whole or of a part of the The provision means that a person may not donate more thing purchased. clothing. the donation is valid during the lifetime of the 2. When a donation is made to several persons stipulated.UST Faculty of Civil Law ___________________________ Q: What is support? 1. The donee is subrogated to all the rights and actions his profession. but if he should die without having The preceding paragraph shall not be applicable to made use of this right. if donation is propter nuptias unless the contrary is Art. The right to dispose of some of the things donated. If the donation is simple or remunerative. The latter. between shall belong to the donee. even though they be posthumous. 759. 758 and 759? conceived at the time of the donation. the descendants. 756. the former is living. unless the contrary is right he reserved. whom the latter believed to be obligation to pay the debts of the donor. the donee shall be responsible therefor only when mortis causa. at the full ownership. should have legitimate donated shall “go back” to the donor or some other person. However. He When one person receives the usufruct.UST Faculty of Civil Law ___________________________ condition is fulfilled if the donor dies without exercising the the value of the donation received. (642a) Q: To what kind of donations this article apply? Art. Art. He is not liable for debts in excess of legitime of the descendant. Any reversion stipulated by the donor in favor of a third CHAPTER 4 person in violation of what is provided in the preceding REVOCATION AND REDUCTION OF DONATIONS paragraph shall be void. although the donation will not be He is liable for subsequent debts only when there is a revoked. 758. In no case shall the donee be responsible for the debts exceeding the value of the property donated. LIABILITY OF DONEE TO PAY DEBTS OF DONOR The donation cannot be revoked when the child was already Q: What are the rules provided under Arts. or legitimated or illegitimate children. unless a contrary intention clearly appears. favor of other persons unless they are all living at the time of the donation. may be revoked or REVERSION reduced as provided in the next article. understood to be liable to pay only the debts which appear (3) If the donor subsequently adopt a minor child. Reversion may be validly established in favor of only the donor for any case and circumstances. by the happening of any of these events: The donor may provide for reversion. 760. after the donation. when at the time thereof the donor did not reserve A: The reason for the article is that the law presumes that the sufficient property to pay his debts prior to the donation. only if the donor was aware of the conception of his child. Art. if the clause does dead when he made the donation. (614a) Art. but not in He is not liable beyond the value of the donation received. where there is no stipulation regarding the payment of one person and the usufruct to another or others. donor would not have made the donation if he had or knew (643) he had a child who would naturally be entitled to his affection and property.NOTES ON PROPERTY Kenneth & King Hizon (2A). the donation has been made in fraud of creditors. made by a person having no children or descendants. There being no stipulation regarding the payment A: This article applies to all donation inter vivos and not to of debts. it may be declared inofficious if it impairs the stipulation to that effect. (640a) The donee is generally not liable to pay the donor’s debts. whereby the property (1) If the donor. legitimate or legitimated DONATION WITH PROVISION FOR by subsequent marriage. Q: What is the reason for this article? The donation is always presumed to be in fraud of creditors. A: Q: Does this article cover descendants also? 1. Every donation inter vivos. (644a) to have been previously contracted. where donor imposes obligation upon the donee: A: The article covers only the appearance of children and not The donee is liable to pay only debts previously contracted. When the donation imposes upon the donee the (2) If the child of the donor. either by acts inter vivos or mortis causa. 757. Facultad de Derecho Civil 134 UNIVERSITY OF SANTO TOMAS . but shall not nullify the donation. time of the donation. should turn out to be not contain any declaration to the contrary. intended. Art. it is understood that is responsible therefor only if the donation has been made in the other donee receives only the naked ownership. The ownership of property may also be donated to 2. provided debts: all the donees are living at the time of the donation. the donor has not left sufficient assets to pay his debts. not the fraud of creditors which is always presumed when. or illegitimate. b. Determination of value at the time of donation subject to the fulfillment rights of 3rd of the persons condition It is presumed that the price at which the property is sold is against the its value. or from the A: judicial redeem the filinhg of declaration of mortgage the 1. but he can recover reimbursement from the Non. (Art. (n) A: If the child born subsequent to the donation should die before the complaint for revocation is filed. Rules on donation When the property cannot be returned. with a right to recover the same from the donee. from birth of children and must be must return or adoption child. The donation will only be revoked to the extent of the c. it shall be estimated GROUNDS PRESCRIPTION TRANSMISSIBILITY EFFECT OF LIABILITY OF ACTION OF ACTION REVOCATION FOR FRUITS at what it was worth at the time of the donation. taking die before the complaint for revocation is filed? into account the whole estate of the donor at the time of the birth. c. appearance. if the property has been sold. must return done with compliance donee’s heirs alienations the fruits 4. Art. it will remain valid with respect to the free portion taking into account the estate of 2. the property support of himself or dependent relatives. return the property filiations or with the right complaint 2. must return knowlegde of alienations & the fruits the act of mortgages accruing Facultad de Derecho Civil 135 UNIVERSITY OF SANTO TOMAS . or adoption of a child. the donation Q: What are the grounds for reduction of donation? remains subsisting. 762. appearance or adoption of a child. failure of the donor to reserve sufficient property to the same. non – fulfillment of a resolutory condition imposed by the donor. birth. the donor may redeem the which the donor can give by will. Art. descendants of returned or the fruits What the donee must do if the donation is reduced? of a child legitimation. A: The same grounds for revocation under Article 760. death sold. taking into account the REDUCTION OF DONATION whole estate of the donor at the time of the birth. Within 4 years To donor’s heirs Property Donee compliance from non. 761).generally affects a portion only of the donation the donor at the time of the birth. 1. by paying the amount guaranteed. Within 4 years Transmitted to Property Donee appearance. Revocation. that is. if the property cannot be returned. Act of Within 1 year Not transmitted to Property to Donee ingratitude from heirs of the donor be returned. donor upon his its value if accruing adoption. appearance of adoption of and is allowed during the lifetime of the donor or after his the child. if the property has been mortgaged. the donor may pay existence off the debt. inofficiousness.NOTES ON PROPERTY Kenneth & King Hizon (2A). pay off his existing debts. return its value conditions and received mortgages aftre the are void non. Code). the donee is donee not liable for the difference absent proof of bad faith. The donation shall be reduced insofar as it exceeds the portion GROUNDS FOR REVOCATION AND that may be freely disposed of by will. If the price is less than its actual value. In the cases referred to in the preceding article. failure of the donor to reserve sufficient means for by the birth. (645a) birth. the donation shall be revoked or reduced insofar as it exceeds Q: What if the child born subsequent to the donation should the portion that may be freely disposed of by will. death. according to the view of most authors.UST Faculty of Civil Law ___________________________ Q: Is there a need for a complaint to revoke the donation? ingratitude before from the notation of filing of the complaint in complaint A: The donation is revoked by the happening of any of the the Registrty of Property events enumerated in the article (ipso jure) but a complaint subsist showing allegations and proofs must be filed to show that the child is actually impaired. mortgage. 761. the donation exceeds that If the property is mortgaged. or adoption of a child. affected shall be returned or its value if the donee has sold b. appearance or adoption of a child. against the returned.affects the whole donation and is allowed during the lifetime of the donor The revocation is a mere reduction or partial revocation and not total (as opposed to that mentioned in the Old Civil a. Reduction. give the value to the donor receipt of to recover information of the property 3. appearance. ingratitude of the donee presumptive legitime of the child. if the property is still with him. Upon the revocation or reduction of the donation a. the period of been probably contemplated by the donor. legitimation. action is transmitted to his legitimate and illegitimate children and descendants. with regard to third persons. and may be exercised against the Q: Within what period should the action be brought? donee's heirs. The donation shall be revoked at the instance of received regarding the existence of the child believed dead. its value shall be determined not as of the time of loss but as of the time of the NOTE: As to receipt of information of existence of child donation because the done became owner from the latter believed dead. charges. the period a. recognition or adoption. or from the judicial declaration of filiation. when the donee fails to comply with any of the conditions which the former imposed upon the latter. by the REDUCTION Mortgage Law and the Land Registration Laws. 763. (647a) A: The period to bring an action is four years. the court shall determine such period as may under the circumstances have A: With respect to adopted children. What is contemplated is an onerous or modal donation. It may also refer to a resolutory condition. or burdens imposed by the donor for his benefit or that of a A: If the donor dies within the period of prescription. If subsequent to the donation. (646a) donor. the period of prescription must run from years from the birth of the first child. may be transmitted to the heirs of the donor. noncompliance with the condition. more than the donation never becomes effective. prescription runs from the date the judgment of the court approving the adoption becomes final.NOTES ON PROPERTY Kenneth & King Hizon (2A). The donation is revoked ipso jure by operation of law. declaring filiation becomes final. the alienations made by the donee and the mortgages imposed thereon by him being void. to his legitimate and illegitimate In this case. Facultad de Derecho Civil 136 UNIVERSITY OF SANTO TOMAS . or from the actual appearance of the absent child but from the enjoy the increase in value of the property donated. the period of prescription must be counted from the time of the legitimation (from the celebration of the subsequent The condition must be fulfilled within the period fixed by the marriage. Failure of the donee to comply with any condition of prescription must run from the date when the judgment imposed by the donor will not affect third persons. The action for revocation or reduction on the In case more than one cause or ground for revocation or grounds set forth in article 760 shall prescribe after four reduction concur. upon the death of the donor. one child was born. 764. NOTE: Revocation implies that there is an existing donation. Q: What if the donation does not fix a period? Q: What is the period of prescription in case of adopted children? A: If the donation does not fix a period. the prescriptive period is to be computed not time and as owner he must suffer the loss or diminution. With respect to legitimation. the donor.fulfillment. are not included.UST Faculty of Civil Law ___________________________ When the property cannot be returned. or from his the earliest cause. with the PRESCRIPTION OF ACTION FOR REVOCATION OR limitations established. the property donated shall be returned to the children and descendants. Q: What if there was non-fulfillment of the condition? Q: What is the period of prescription in case of judicial A: In case of non. A: With respect to judicial declaration of filiation. the period of prescription is counted from the birth of the first child. the third person. or from the time information was Art. This action cannot be renounced. and the day FAILURE TO COMPLY WITH CONDITIONS from which the period shall begin to run depends upon the cause for the revocation or reduction. parents). time the information was received regardingits existence. Q: What is a condition? Q: What if the donor dies within the period of prescription? A: Condition actually refers to the obligations. and is transmitted. Art. the property donated reverts to declaration of filiation? the donor. but not to a NOTE: The surviving spouse and the ascendants of the donor suspensive condition because if the condition is not fulfilled. whether or not the child is recognized by the donor. “by the This action shall prescribe after four years from the happening” of any of the events mentioned in article 760. 767. or any act involving moral turpitude. no prohibition in art. or adoption of a child or ingratitude.UST Faculty of Civil Law ___________________________ b. The action may be waived. Although the donation is revoked on account of ingratitude. the donation act of ingratitude must have been committed by the done shall be revoked at the instance of the donor.NOTES ON PROPERTY Kenneth & King Hizon (2A). or by reason of ingratitude. he is supposed to bear the loss wife or children under his parental authority. NOTE: Unlike the action for revocation or reduction. not return the fruits except from the filing of the complaint. in the Registry of Property shall subsist. 764 against the renunciation of the subject only to the rights of innocent third persons. In case of non – fulfillment by the donee of any of The enumeration is exclusive and cannot be enlarged. there is alienations and mortgages made by the donee are void. by reason of ingratitude in the following cases: If the property has been lost or deteriorated thru any cause (1) If the donee should commit some offense against the including a fortuitous event. nevertheless. 768. If the revocation is by reason of ingratitude. The donation may also be revoked at the instance the donation. 764 is transmissible in favor of the donor’s heirs and from the donee the value of property alienated which he against the donee’s heirs because the right granted is not cannot recover from third persons. In case of revocation of a donation by non – compliance by the done with any of the conditions imposed by the donor. The value of said property shall be fixed as of the time of Art. (648a) the conditions imposed in the donation. the donee shall authority. because as owner. When the donation is revoked for any of the prove it. Q: Who has the burden of proof in showing that the donee Later ones shall be void. the action under preceding article. 766. the donee should respond with person. or deterioration (res perit domino). or of his damages. or the sum for which the personal to the donor nor is the liability of the donee same has been mortgaged. provided the prescriptive void. In the case referred to in the first paragraph of the Unlike the action under arts. The the conditions imposed by the donor. (650) of the donor. 769 and 770. (3) If he unduly refuses him support when the donee is If the revocation is based upon noncompliance with any of legally or morally bound to give support to the donor. the honor or the property of the donor. the alienations and mortgages The article is not applicable to onerous donations which are effected before the notation of the complaint for revocation also governed by the general rules on prescription. (2) If the donee imputes to the donor any criminal offense. even though he should Art. Art. NOTE: The donor may file action for specific performance. If the cause is the birth. action by the donor because the condition is purely contractual in nature. Donor has the burden of proof that the donee failed to comply with his obligation. the alienations and mortgages made by the done before the complaint for The death of the donor or the donee does not bar the action revocation is annotated in the Registry of Property shall to revoke for failure of the donee to comply with any of the subsist or are valid. period has not yet expired. (651) The article does not apply to donations mortis causa and RETURN NY DONEE OF THE FRUITS OR PROPERTY onerous donations. later alienations and mortgages shall be conditions imposed by the donor. the donee shall return not only the property but also the fruits thereof REVOCATION BY REASON OF INGRATITUDE which he may have received after having failed to fulfill the OF THE DONEE condition. 765. personal to him. 1. appearance. Art. unless the crime or the act has been committed causes stated in Article 760. DONATED A donation propter nuptias may be revoked by the donor Rules depend upon the causes of revocation or reduction: when the donee has committed an act of ingratitude. (649) failed to comply with the obligation? EFFECT OF REVOCATION ON PRIOR A: The presumption is that the done has complied with his ALIENATIONS AND MORTGAGES obligation under the deed of donation. or against the donee himself. himself because the duty of ingratitude is personal. the donor shall have a right to demand art. or inofficiousness of the donation because the donor did not reserve sufficient means for Facultad de Derecho Civil 137 UNIVERSITY OF SANTO TOMAS . his wife or children under his when it is reduced because it is inofficious. if the latter did not institute the same. Art. unless upon the latter's death the complaint has been filed. the suit may be donor had knowledge of the fact and it was possible for him continued against his heirs to bring the action. This action the donee is personal. are inofficious.UST Faculty of Civil Law ___________________________ support. 769. 195 Family donated support Code). The action granted to the donor by reason of acts of their predecessor – donee. Donations which in accordance with the provisions RENUNCIATION AND PRESCRIPTIVE PERIOD OF of Article 752. What the during the life of the donor. or he donated more than he can give by will. 2. his heirs are allowed to continue from the time of the breach of the condition. the latter’s heirs can ask for donation shall be the donor owner of revocation. it follows that in the impossibility existed is not counted meantime. of ingratitude. prior to the commission of the act appropriating the fruits. accrues. shall be reduced with regard to the excess. if the action for revocation has already been filed by the imposed in the donation. as a lifetime of the donor rule. Neither can this action be brought against the heir of the Resume of rules on reduction donee. Inofficiousnes 5 years action is donation donee s transmitted takes effect appropriate Exceptions: to the donor’s during the s the heirs as the lifetime of fruits as 1. But if the donor has already filed the prescribes within one year. nor shall it bar the donee from law prohibits is waiver. If the cause is the non – fulfillment of the condition 4. the intent of the donor not to complaint.NOTES ON PROPERTY Kenneth & King Hizon (2A). be transmitted to the heirs. his heirs may likewise bring action donation remains valid up to the time of the filing of the because in such case. the period during which such determined till after the donor's death. the fruits must be returned donor before his death. the donation is valid and ownership is transmitted to the done during the donor's lifetime. but the donor dies before he could bring the civil need be returned. General Rule: The action to revoke a donation by reason of during the ingratitude is purely personal to the donor and cannot. but this 1. reduced as regard subject to the the excess at the reduction property 2. and even if he should die before the brought within five years from the time the right of action expiration of one year. 771. The action prescribes within one year from the time the REDUCTION OF INOFFICIOUS DONATIONS donor had knowledge of the act of ingratitude and it was impossible for him to bring the action. if a criminal case against the donee was instituted by the only the fruits accruing from the filing of the complaint donor. to be counted from the time the complaint before the donee’s death. From this it can be implied that the action for revocation. the heirs may also do so if the donor dies without having time of only upon known of the act of ingratitude. This action shall not be transmitted to the heirs of the donor. bearing in mind the estimated ACTION BY REASON OF INGRATITUDE net value of the donor's property at the time of his death. pardon the done is quite clear. although The action to reduce the inofficious donation must be he could have done so. 3. if the donee killed the donor. 770. (652) Art. The donee the same shall return the property donated. The action granted to the donor for revocation by reason reduction shall not prevent the donations from taking effect of ingratitude cannot be renounced in advance. The act of ingratitude of ingratitude cannot be renounced in advance. (653) GROUNDS PRESCRIPTIO TRANSMISSIBILIT EFFECT OF LIABILITY N OF ACTION Y OF ACTION REVOCATIO FOR FRUITS N Failure of the the action action not donation is the donee is donor to may be transmissible as reduced to entitled to reserve brought at the duty to give the the sufficient any time by support and extent fruits of the means for the donor or the right to necessary to owner of support by the receive are provide the TRANSMISSION OF ACTION FOR REVOCATION relatives personal in nature support property entitled to (art. In case of a Since the inofficiousness of the donation cannot be fortuitous event. the donor’s death his death with regard to Facultad de Derecho Civil 138 UNIVERSITY OF SANTO TOMAS . A past ingratitude can be the subject of a valid renunciation because the renunciation can be For the reduction of donations the provisions of this Chapter considered as an act of magnanimity on the part of the and of Articles 911 and 912 of this Code shall govern. 2. (654) donor. NOTE: The heirs of the donee are not held responsible for the Art. is void. excess. Facultad de Derecho Civil 139 UNIVERSITY OF SANTO TOMAS . 772) PERSONS ENTITLED TO ASK FOR REDUCTION REDUCTION WHERE THERE ARE TWO OR MORE DONATIONS Q: Who may ask for reduction on the ground of inofficiousness? 1. Anytime Not transmissible Donation Donee appearance or during the reduced to appropriate adoption of a lifetime of extent s fruits not A: Future legitime is not subject to renunciation child donor necessary affected by for support reductioon. creditors of the deceased REFERENCES: Donor not included because the inofficiousness can only be 1. 773. if the two donations were perfected at the same time. (656) accruing from the filing of the Q: When is a donation inofficious? complaint Fraud against 4 years action is the property the creditors transmitted to affected fruits of the A: A donation is inofficious or excessive when its amount the creditor’s shall be property impairs the legitimes of the compulsory heirs. in whatever form it is extended. either by express declaration or by consenting to thet donation.UST Faculty of Civil Law ___________________________ the excess Q: Is future legitime subject to renunciation? Birth. Only those who at the time of the donor's death determined after the donor’s death. devisees 3. devisees and legatees. the creditor excess is void for being inofficious. legatees 4. If its amount exceeds the same. Such waiver. the heirs and successor-in-interests of 2. there being two or more donations. 2. have a right to the legitime and their heirs and successors in interest may ask for the reduction or inofficious donations. the inofficious donation is effective since the excessiveness of the donation can only be Art. heirs or returned by affected successors – in – the shall interest donee for also be NOTE: Donations must be charged only against the the benefit returned of the disposable free portion. the to the disposable portion is not sufficient to cover all of them. donor to file an action for suppression or reduction of an inofficious donation? The donees. voluntary heirs --END-- 2. liable for those of the more recent date shall be suppressed or fruits reduced with regard to the excess. (655a) (Art. If. The right to ask for reduction of 2. either Q: May an heir waive his right during the lifetime of the by express declaration. the reduction should be proportionate unless otherwise Q: Who may NOT ask for reduction? provided by the donor A: 1. ask for the reduction nor avail themselves thereof. subject to the rights of innocent Q: What is the status of an inofficious donation? third persons A: During the lifetime of the donor. Growling Notes determined after his death. with regard Art. 772. compulsory heirs of the donor the excess. the subsequent donations shall first be reduced and only if they are not sufficient to cover the disposable portion A: should the earlier ones be reduced also with regard to 1. who are not entitled to the legitime and the creditors of the deceased can neither A: No. the donee is entitled to the fruits of the property donated during the lifetime of the donor. Those referred to in the preceding paragraph cannot renounce their right during the lifetime of the donor.NOTES ON PROPERTY Kenneth & King Hizon (2A). or by consenting to the donation. Golden Notes inofficious donations cannot be renounced during the lifetime of the donor. NOTE: Consequently.