Property Law Notes (Ownership)

PROPERTY LAW aizaebina/2015 Arellano University School of Law

OWNERSHIP IN GENERAL RIGHTS OVER THINGS PROPERTY

- an economic concept, meaning a mass of things or objects useful to human activity and which are necessary to life, for which reason they may in one way or another be organized and distributed, but always for the use of man

RIGHT TO PROPERTY

- the juridical tie by virtue of which a person has the exclusive power to receive or obtain all the benefits from a thing, except those prohibited or restricted by law or by the rights of others

- emphasizes the vinculum between man and the thing

OWNERSHIP

- refers to the mass of rights over the thing IS THIS PROPERTY? SHOULD WE TREAT THIS THING AS PROPERTY? Art. 414. All things which are or may be the object of appropriation are considered either:

1) Immovable or real property 2) Movable or personal property

THINGS AND PROPERTY DISTINGUISH THINGS

- all objects that exist, and can be of some use to man

- all those that can be possessed - more generic and extensive than the idea of

property - in a juridical sense, includes only objects

which can be of utility to man - cannot include any object whatsoever, but

only those that can give some good or utility to man and which can be the objects of juridical relations

- object must be one that can be used for the satisfaction of human needs, for pleasure or comfort

- something that can form part of man’s patrimony, even if it be intangible, such as a right

- only those susceptible of pecuniary estimation enter into the concept of things

PROPERTY

- all those that are already appropriated or are in the possession of man

- those that are already possessed and can be found in man’s patrimony

- things are property in a juridical sense, not only when they are useful to man, but when they are appropriated

- in order to constitute property it is not necessary that the thing has an owner

- it is enough that it has been appropriated, even if it may later have no owner, such as abandoned property

- includes not only things which are already possessed by man, but also those which are susceptible of being possessed by him

RIGHTS AS PROPERTY

- things, in a juridical sense, include not only material objects, but also rights, although these are relations and not objects

- only rights which are patrimonial in character can be considered as things

- rights which are not patrimonial, such as right to liberty, honor, family rights, etc. cannot be considered property

REAL RIGHTS

- the power belonging to a person over a specific thing without a passive subject individually determined against whom such right may be personally exercised

- gives right to a person a direct and immediate juridical power over a thing, which is susceptible of being exercised, not only against a determinate person, but against the whole world

- jus in re - “in rem” rights, demandable to everyone, to

the whole world; everyone is expected to


respect your right even without one demanding it

Characteristics:

1) a subject and an object connected by a relation of ownership of the former over the latter

2) a general obligation or duty of respect for such relation, there being no particular passive subject

3) effective actions recognized by law to protect such relation against anyone who may want to disturb it

PERSONAL RIGHTS

- power belonging to one person to demand of another, as a definite passive subject, the fulfillment of a prestation to give, to do or not to do

- more properly called rights of obligation, or simply obligation

- jus ad rem Characteristics:

1) two subjects, active and passive, who are determined and specified; the passive subject being bound to perform a prestation incumbent upon him, by reason of a juridical tie which binds him to the active subject

2) a general obligation on the part of third persons to respect the relation between the active and passive subjects

3) effective actions in favor of the active subject against the passive subject for the performance of the prestation by the latter or so that the relation between them may produce its natural and juridical effects

DISTINCTIONS OF REAL AND PERSONAL RIGHTS

1) By the number of persons involved in the juridical relation a) Real Rights – one definite active subject

and the rest of the world as passive subject without individual determination

b) Personal Rights – a definite active subject and a definite passive subject

2) By the object of the juridical relation a) Real Rights – object is generally a

corporeal thing b) Personal Rights – object is an intangible

thing, the prestation of the debtor

3) By the manner in which the will of the active subject affects the thing related to it a) Real Rights – generally affects the thing

directly b) Personal Rights – indirectly through the

prestation of the debtor

4) By the causes of creating the juridical relation a) Real Rights – mode and title b) Personal Rights – by title alone

5) By the methods of extinguishment of the

juridical relation a) Real Rights – extinguished by the loss or

destruction of the thing b) Personal Rights – not extinguished

through loss or destruction

6) By nature of actions arising from them a) Real Rights – give rise to real actions

against third persons b) Personal Rights – produce only personal

actions against the definite debtor KINDS OF PROPERTY OWNERSHIP

1) COMMON

- things which as a whole mass, which are not susceptible of appropriation, but a limited quantity of the whole mass may be appropriated and thereby converted into property

- e.g. sun, stars, the core of the earth, the sea - those which do not belong to anyone in

particular, but are created by nature for the use of all, such as the air, the sun, and the open sea

2) RES NULLIUS


- things which have been intentionally abandoned by their owners are still considered in law as things, even if for the moment they have no owners, because they can still be the object of appropriation

- those which do not belong to anyone and are not enjoyed by anyone, such as abandoned property and hidden treasure (Tolentino)

3) PUBLIC DOMINION

- does not carry the idea of ownership - not owned by the State, but pertains to the

State, which as territorial sovereign exercises certain juridical prerogatives over such property

- has the special characteristics of collective ownership for the general use and enjoyment, by virtue of their application to the satisfaction of the collective needs

- their purpose is not to serve the State as a juridical person, but the citizens; they are intended for the common and public welfare, and so they cannot be the object of appropriation either by the State or by private persons

- the relation arises from the fact that the State is the juridical representative of the social group, and as such takes care of them, preserves them and regulates their use for the general welfare

- outside of the commerce of man - those owned by the State but enjoyed by all

its inhabitants Principles:

1) they cannot be alienated or leased or otherwise be the subject of contracts

2) they cannot be acquired by prescription against the State; even municipalities cannot acquire them for use as communal lands as against the State

3) they are not subject to attachment and execution

4) they cannot be burdened by any voluntary easement

Art. 420. The following things are property of public dominion:

1) Those intended for public use, such as roads, canals, rivers, torrents, ports and

bridges constructed by the State, banks, shores, roadsteads, and others of similar character

2) Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth

a) PROPERTY INTENDED FOR PUBLIC USE

- not subject to appropriation - shores; portion of land which is subject to

the ebb and flow of the waters of the sea - the accretions or additions to the shores of

the sea by action of the water or because of having been reclaimed from the sea

- navigable and non-navigable streams with their channels and their branches

- creeks and “esteros” - streets, even if the putting of telephone

posts or the planting of coconut trees thereon have been tolerated

- beds of rivers - can be used by everybody, even by strangers

or aliens, in accordance with its nature - nobody can exercise over it the rights of a

private owner

b) PROPERTY FOR PUBLIC SERVICE - includes not only those used for the defense

of the territory - all property devoted to public service - public buildings constructed by the State for

its offices and functionaries - buildings belonging to private persons

rented by the State for such uses are not property of public dominion

- does not distinguish between immovable and movables

- battleships, which are floating fortresses, are for public service

- the land on which fortress is erected must also be considered as for public service

c) PROPERTY FOR THE DEVELOPMENT OF

NATIONAL WEALTH

- public lands may be classified as private property of the State, as soon as they are available or alienation or disposition

- before they have been declared so available for disposition, they would partake of property of public dominion


- mines before their concessions have been granted

- alienable or disposable public lands destined for agricultural, residential, commercial, industrial, or other similar productive purposes

- for educational, charitable, or other similar purposes

- for reservations of town sites and for public and quasi-public uses

Art. 421. All other property of the State, which is not of the character stated in the preceding article, is patrimonial property.

d) PATRIMONIAL PROPERTY

- property over which the State has the same rights, and of which it may dispose, to the same extent as private individuals in relation to their own property, subject only to the administrative laws and regulations on the procedure of exercising such rights

- exist for the State for attaining its economic ends, as a means for its subsistence, and the preservation of its natural organism

- private property of the State - property acquired by the government in

execution sales, in tax sales, and escheats of estates of persons who die intestate without legal heirs, and the income or rents of the State

- subject to prescription - can be the objects of ordinary contracts - property of public dominion ceases to be

such and becomes private property of the State only upon a declaration by the government, through the executive or legislative departments, to the effect that it is no longer needed for public use or service

- if the government has not devoted it to other uses, or adopted any measure which amounted to a withdrawal thereof from public use or service, the same remains property for public use or service, notwithstanding the fact that it is not actually devoted for public use or service

- those which are not enjoyed in common by the people, but whose products are applied to the expenses of the municipality

Art. 425. Property of private ownership, besides the patrimonial property of the State, provinces, cities,

and municipalities, consists of all property belonging to private persons, either individually or collectively. 4) PRIVATE PROPERTY

- those which are owned and enjoyed by one or more determinate persons

a) ALL PROPERTIES BELONGING TO PRIVATE

PERSONS EITHER INDIVIDUALLY OR COLLECTIVELY

- where a person has proved his right of

ownership over a piece of land, and it is not shown that the State has a superior right thereto, the former must be recognized as owner even as against the State

- where the private ownership has been established, a piece of land will not be held property of public dominion

- the fact that at no time was an expense incurred by the government with respect to a road, claimed to be private, tends strongly to support the contention that it is a private way

MOVABLE AND IMMOVABLE PROPERTY

- the classification of things into movables and immovable is the most important in law

1) IMMOVABLE PROPERTY

- when they cannot be transferred from place

to place - real property - presupposes stability or the impossibility of

transfer from place to place, although the law may give the character of immovability to things which can be moved

- objects which cannot be moved from place to place without injury

Art. 415. The following are immovable property:

1) Land, buildings, roads and constructions of all kinds adhered to the soil;

2) Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable;

3) Everything attached to an immovable in a fixed manner, in such a way that it cannot


be separated therefrom without breaking the material or deterioration of the object;

4) Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands, by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements;

5) Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works;

6) Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included;

7) Fertilizer actually used on a piece of land; 8) Mines, quarries, and slag dumps, while the

matter thereof forms part of the bed, and waters either running or stagnant;

9) Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast;

10) Contracts for public works, and servitudes and other real rights over immovable property

a) ENUMERATION OF IMMOVABLE PROPERTY

CLASSES OF IMMOVABLES

1) IMMOVABLE BY NATURE

- those which cannot be moved from place to place, such as land, mines, quarries, and slag dumps

- land, buildings, roads and constructions of all kinds adhered to the soil (Paragraph 1)

- mines, quarries, and slag dumps, while the

matter thereof forms part of the bed, and

waters either running or stagnant

(Paragraph 8)

- covers property which are immovable by their nature

- buildings are always immovable under the Code

- separate treatment of the parties of a building from the land on which it stands, does not change the immovable character of the building

- buildings or constructions placed on land by a lessee do not become immovable, where the lease agreement gives the lessee the right to remove the buildings and improvements at the end of the lease

2) IMMOVABLE BY INCORPORATION

- those which are essentially movables, but are attached to an immovable in such manner as to be an integral part thereof

- constructions of all kinds adhered to the soil (Paragraph 1)

- trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable (Paragraph 2)

- everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object (Paragraph 3)

- statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands, by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements (Paragraph 4)

- animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included (Paragraph 6)

- trees and plants are immovable only when they are attached to the land

- rex vinta - although temporarily separated from the

immovable, they retain their immovable character, if there is an intent to replace them

- the material fact of incorporation or separation is what determines the condition of these objects, so that, as soon as they are separated from the tenement, they recover their condition as movables, irrespective of the intention of the owner

3) IMMOVABLES BY DESTINATION


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

- statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands, by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements (Paragraph 4)

- they are immovable both by incorporation and by destination

- they can generally be separated from the immovable without breaking the matter or injuring the object

- it is indispensable that the objects must be placed in the immovable by the owner of the latter

- it is enough that the owner orders the placement of the object or even just ratifies it subsequently

- machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works (Paragraph 5)

- the immovable condition of these objects depends upon their being destined for use in the industry or work in the tenement

- the moment they are separated, not necessarily from the immovable, but from the industry or work in which they are utilized, they recover their condition as movables

- work animals or beasts of burden are not included

- excludes those which are merely for decorative purposes, and even those which are necessary for the other purposes distinct from the requirements of the industry or works being carried on in the tenement

- animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included (Paragraph 6)

- refer to the animals themselves living in these breeding places and not to the

structures, which are already included in Paragraphs 1 and 3

- fertilizer actually used on a piece of land (Paragraph 7)

- fertilizers should be on the land where they are to be utilized, because it is only then that the intention of the owner to use them on the tenement is beyond doubt

- fertilizers kept in the farmhouse are not immovable

- docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast (Paragraph 9)

4) IMMOVABLES BY ANALOGY OR BY LAW

- contracts for public works, and servitudes

and other real rights over immovable property (Paragraph 10)

b) EXTENT OF OWNERSHIP

Art. 437. The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special laws and ordinances. He cannot complain of the reasonable requirements of aerial navigation. - the right of the owner in the space over his

land extends only as far as he has some interest, that is, only to the point necessary for the use or enjoyment of the land itself

- aerial space is not juridically a thing susceptible of private appropriation, and must be considered as a common thing

- the infinite space above a piece of land cannot be considered as property of the landowner

- same principle applies to the subsoil below the point which the landowner may utilize for the use of the tenement

- in both cases, the owner of the land has a right which does not extend beyond what is necessary to enable him to obtain from his property all the utility and convenience that it can normally give

- the right of the landowner extends to the space and subsoil as far as necessary for his practical interests, or to the point where it is


possible to assert his dominion; beyond these limits, he would have no legal interest

- his right extends to such height or depth where it is possible for him to obtain some benefit or enjoyment, and it is extinguished beyond such limit because there would be no more interest to be protected by the law

- to give the owner of the land unlimited right over the space and subsoil would hinder aerial navigation, and tunnels for railways cannot be made through mountains where the surface is owned privately

2) MOVABLE PROPERTY

- personal property - transfer and movement in space is possible,

whether by itself as in the case of animals, or by some external act

- those which can by their nature be moved from place to place without injury

- forces of nature are considered movable (e.g. electricity, gas, heat, oxygen, light, rays)

- semi-movables: now classified as movables; they include all those which are susceptible of moving by themselves without assistance from any outside force, such as animals

- intellectual property: the right of the author, artist, or inventor over his work is personal property; it consists in the pecuniary benefit which the owner can get by the reproduction or manufacture of his work

a) ENUMERATION OF MOVABLE PROPERTY

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

1) Those movables susceptible of appropriation which are not included in the preceding article;

2) Real property which by any special provision of law is considered as personality;

3) Forces of nature which are brought under control by science, and

4) In general, all things which can be transported from place to place without impairment of the real property to which they are fixed.

Art. 417. The following are also considered as personal property:

1) Obligations and actions which have for their object movables or demandable sums; and

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

MOVABLE PROPERTY

1) those movables susceptible of appropriation which are not included in the preceding article

2) real property which by any special provision of law is considered as personality

3) forces of nature which are brought under control by science

4) in general, all things which can be transported from place to place without impairment of the real property to which they are fixed

5) obligations and actions which have for their object movables or demandable sums

- obligations really means credits - includes all kinds of credits - includes bonds, which are

technically obligations of the entity issuing them

- whether the credit is matured or not, it is personal property

6) shares of stock of agricultural, commercial, and industrial entities, although they may have real estate - all juridical persons are deemed

included - the interests of the members of

partnership and the shares of stock in any corporation are movable or personal property

b) CONSUMABLES OR NON-CONSUMABLES

Art. 418. Movable property is either consumable or non-consumable. To the first class belong those movables which cannot be used in a manner appropriate to their nature without their being consumed; to the second class belong all the others. Classification according to the nature of the thing


CONSUMABLES

- those which cannot be used in a manner appropriate to their nature without being consumed

- those whose use according to their nature destroys the substance of the thing or causes their loss to the owner

- food is an example

NON-CONSUMABLES

- those not consumed by use - money in coin is an example

Classification according to purpose, depending on whether they can be substituted by other things of the same kind, quality, and quantity

c) FUNGIBLE OR NON-FUNGIBLE

FUNGIBLES

- those which belong to a common genus which includes several species of the same kind, perfectly permitting substitution of one by the others, such as grain, wine, oil, etc.

- the quality of being fungible depends upon their possibility, because of their nature or the will of the parties, or being substituted by others of the same kind, not having a distinct individuality

- generally the things whose individuality can be determined by counting, weighing or measuring

NON-FUNGIBLES

- those specifically determined and cannot be substituted by others, such as lands, buildings, a horse, etc.

- those which have their own individuality and do not admit of substitution

d) TEST

- There are three tests applied successively to determine whether an object is movable or immovable:

1) Whether it can be carried from place to place

2) Whether the change of location can be effected without injury to an immovable to which the object may be attached

3) Whether the object is not included in any of the ten paragraphs of Article 415

OWNERSHIP

1) IN GENERAL a) DEFINITION

- the independent and general

power of a person over a thing for purposes recognized by law and within the limits established thereby

1) IN ITS STRICT SENSE

- a relation in private law by virtue of

which a thing pertaining to one person is completely subjected to his will in everything not prohibited by public law or the concurrence with rights of another

2) MEANING OF TITLE

- the right of the owner or the extent

of his interest and by means of

which he can maintain control, and

as a rule, assert his right to the

exclusive possession and

enjoyment of the property

b) INCIDENTS OF OWNERSHIP 1) POSSESSION AND CONTROL

- jus possidendi: the right to possess

and control the thing

2) RIGHT TO ITS PRODUCT OR INCREASE

- jus abutendi: the right to consume the thing by its use / right to abuse

- jus utendi: the right to receive from the thing what it produces / right to use and enjoy


- jus fruendi: the right to enjoy the fruits of the thing owned

3) RIGHT TO TRANSFER

- jus disponendi - the right to dispose, is the power of

the owner to alienate, encumber, transform, and even destroy the thing owned

- the right to dispose includes the right not to dispose

4) RIGHT TO VINDICATE

- jus vindicandi - the right to exclude from the

possession of the thing owned by any other person to whom the owner has not transmitted such thing, by the proper action for restitution, with the fruits, accessions, and indemnification of damages

ACTIONS FOR POSSESSION Three actions for the recovery of possession of immovable property: 1) FORCIBLE ENTRY AND UNLAWFUL

DETAINER / ACCION INTERDICTAL

- within the exclusive original jurisdiction of municipal and justice of the peace courts

- at any time within one year after such unlawful deprivation or withholding of possession

2) ACCION PUBLICIANA

- plenary action to recover possession - which must be instituted in the Court of First

Instance - not necessary for him to wait until the

expiration of one year before commencing such action

- if no action had been instituted for forcible entry and detainer during that time in the inferior court

- ejectment

3) ACCION REINVINDICATORIA

- action to recover possession based on ownership

4) REPLEVIN

- possession of personal property may be

recovered - for manual delivery of such property

c) LIMITATIONS ON OWNERSHIP

The limitations on ownership may be classified as follows:

1) GENERAL LIMITATIONS FOR THE

BENEFIT OF THE STATE

- includes the power of eminent domain, police power and power of taxation

2) SPECIFIC LIMITATIONS IMPOSED BY

LAW - such as legal servitudes - easements, extravagance,

restrictions on land grants - partition / alienation of donor

3) LIMITATIONS IMPOSED BY THE PARTY

TRANSMITTING PROPERTY, EITHER BY CONTRACT OR BY LAST WILL

4) LIMITATIONS IMPOSED BY THE OWNER HIMSELF

- such as voluntary servitudes,

mortgages, pledges, and lease rights

- at the time he transmits the property

- at the time he continues to be the owner of the property

- partition / alienation of donor - easements, extravagance,

restrictions on land grants - owner may impose limitations

upon his right of ownership by any voluntary act permissible under the law

- limitation on ownership may affect the thing even after it has ceased to


belong to the person imposing the limitation

- in the law of donations, sales, and of succession, the law prohibits certain conditions to prevent limitations imposed by the owner that are arbitrary and capricious

5) INHERENT LIMITATIONS ARISING

FROM CONFLICTS WITH OTHER SIMILAR RIGHTS - such as those caused by contiguity

of property

6) INJURIOUS USE - the owner of a thing cannot make

use of his property in such manner that will injure the rights of a third person

- every person must, in the exercise of his due, act with justice, honesty, and good faith (Article 19, Civil Code)

7) INTERFERENCE

- the law permits the injury or

destruction of things belonging to

others provided this is necessary to

avert a greater danger

- state of necessity is an exception as long as there is an actual or imminent danger, the interference is necessary to avert such danger, and the threatened damage compared to the attending interference is much greater

LIMITATIONS FOR PUBLIC INTEREST

Many limitations for public interest may be imposed or private ownership. 1) EXPROPRIATION FOR PUBLIC USE (Eminent

Domain) 2) MILITARY REQUISITIONS 3) ZONIFICATION LAWS AND REGULATIONS 4) PUBLIC OR GOVERNMENT MONOPOLIES 5) LAWS ON WATERS AND MINES 6) LAWS ON PUBLIC SERVICES

7) PUBLIC HEALTH AND SAFETY 8) PUBLIC EASEMENTS 9) POLICE POWER 10) TAXATION

d) Under the Civil Code

Art. 427. Ownership may be exercised over things or rights. 1) Over Things – property 2) Over Rights – real and personal rights

2) PRESUMPTIONS

a) RULE ON ACCESSION

1) ALL WORKS, SOWING, AND PLANTING ARE PRESUMED MADE BY THE OWNER AT HIS EXPENSE

Art. 446. All works, sowing, and planting are presumed made by the owner and at his expense, unless the contrary is proved.

- “all works” should be understood in its broad meaning

- include not only the construction, improvement, or repair of buildings but also all analogous works, such as the placing of industrial machinery therein

- when a construction exists upon a piece of land, it is logical to presume that it was made by the owner of the land and at his expense

- even if a third person does so, it is to be supposed that it was with the consent of the owner

- common sense may give rise to the consideration that buildings constructed on a land belong to the one same owner, but in actual law, such presumption cannot be admitted because it is contrary to the principles of accession

- exception to the rule are buildings constructed during marriage on a separate property of one of the spouses; such construction will be presumed to be conjugal property

b) THE LAW FAVORS ACTUAL POSSESSORS 1) OWNERSHIP IS PRESUMED IN FAVOR OF

ACTUAL POSSESSORS


Art. 433. Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for the recovery of the property.

- if a person believes that he is entitled to the possession of a thing which is in the possession of another, he may ask the latter to deliver possession

- if demand is refused, the person seeking to obtain possession should never use force or violence; he should not take the law into his own hands but must invoke the aid of the competent court by filing the proper complaint for the recovery of possession

3) RIGHT TO USE

a) Under Article 428 of the Civil Code Art. 428. The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law. The owner has also a right of action against the holder and possessor of the thing in order to recover it.

1) The owner has the right to enjoy subject to limitations established by law

- an owner is recognized as the owner of a

land’s surface and everything under it, and he can construct thereon any works which he may deem proper, and that anything found in his property belongs to him

- his ownership of the thing also gives him the right by accession to everything which is produced thereby or which is incorporated thereto

- unless prevented by contract or by some special law, the owner cannot be deprived of the enjoyment of his property

2) Injurious Use

Art. 431. The owner of the thing cannot make use thereof in such manner as to injure the rights of a third person.

- when the owner of property makes use thereof in the general and ordinary manner in which such property is used, nobody can complain as having been injured, because the inconvenience arising from such use can

be considered as a mere consequence of community life

- when a person makes an exceptional or extraordinary use of his property, thereby causing injury to third persons, he should be made liable for the damages caused

- when the use of the property constitutes a nuisance, owner is liable for damages and the injurious use may be stopped

- an owner cannot be debarred from the legitimate use of his property simply because it may cause a real damage to his neighbor

b) 1987 Constitution, National Economy and

Patrimony Article XII. Section 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.

1) Use of Property

- bears a social function - all economic agents shall contribute to the

common good - the State shall apply the principles of

agrarian reform or stewardship whenever applicable in accordance with law, in the disposition or utilization of other natural resources including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands; the State may resettle landless farmers and farm workers in its own agricultural estates which shall be distributed to them in the manner provided by law (Nachura)

4) RIGHT TO TRANSFER

a) Under Article 428 of the Civil Code

Art. 428. The owner has the right to enjoy and dispose of a thing, without other limitations than


those established by law. The owner has also a right of action against the holder and possessor of the thing in order to recover it.

1) The owner has the right to dispose property subject to limitations established by law

- the right to dispose includes the right not to

dispose - jus disponendi - the power of the owner to alienate,

encumber, transform and even destroy the thing owned

- only the owner can dispose of his property, subject to the limitations imposed by law

- one who is not the owner of the thing cannot validly sell the property, nor convey any right of dominion to any other party

b) Kinds of Transfers

1) Assignment of ownership 2) Assignment of use only

5) RIGHT TO EXCLUDE

a) The owner or lawful possessor of a thing has

the right to exclude any person from the enjoyment and disposal of the thing

Art. 429 The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property.

- an act impelled by legitimate necessity shall not be unlawful; legitimate necessity consists in the defense indispensable to repel, personally or through another, an actual and unjust aggression

- actual invasion of property may consist of a mere disturbance of possession or of a real dispossession

- if it is a mere disturbance of possession, force may be used against it at any time as long as it continues, even beyond the prescriptive period for an action of forcible entry

- if the invasion consists of a real dispossession, force to regain possession can

be used only immediately after the dispossession

- if the property is immovable, there should be no delay in the use of force to recover it; a delay even if excusable, such as when due to the ignorance of the dispossession, will bar the right to the use of force

- once the usurper’s possession has become firm by the lapse of time, the lawful possessor must resort to the competent authority to recover his property

1) Enclosure and Fences

Art. 430. Every owner may enclose or fence his land or tenements by means of walls, ditches, live or dead hedges, or by any other means without detriment to servitudes constituted thereon.

- subject to servitudes - right of the owner to enclose his tenement is

limited by the servitudes existing thereon - a person cannot enclose his tenement and

construct a fish pond thereon, as to obstruct the natural flow of waters from upper tenements, to the injury of the owners of such tenements

2) Self-help


- the principle of self-help authorizes the lawful possessor to use force, not only to prevent a threatened unlawful invasion or usurpation thereof


b) Resort to judicial process if possession is lost Art. 433. Actual possession under claim of ownership raises a disputable presumption of ownership. The


true owner must resort to judicial process for the recovery of the property.

- if a person believes that he is entitled to the possession of a thing which is in the possession of another, he may ask the latter to deliver possession

- if demand is refused, the person seeking to obtain possession should never use force or violence; he should not take the law into his own hands but must invoke the aid of the competent court by filing the proper complaint for the recovery of possession

c) Self-help

- this is a qualification to the rule that a person

should not take the law in his own hands; it is a sort of self-defense

- it is lawful to repel force by force - he who merely uses force to protect his

possession does not possess by force - the use of such necessary force to protect

proprietary or possessory rights constitute a justifying circumstance under our Penal Code

- the person possessing in the name of another would not be entitled to self-help against the real possessor, but the latter would have a right against the former

- there must be a real aggression, an imminent violation of the law

- preventive force to forestall aggression is not authorized

- a third person may take the necessary measure to repel the aggression (negotiorum gestor) and if he suffers injury in the defense, the possessor must indemnify him

- when there are several means available, the possessor must choose that which shall cause the least damage to the aggressor

- if he uses more force than necessary, he becomes liable for damages

Documents

Property Law Notes (Ownership)