Property Memaid

42 |2009 CENTRALIZED BAR OPERATIONS San Beda College of Law

PROPERTY - All things which are, or may be, the object of appropriation (Art. 414, NCC)

Thing and Property DistinguishedTHING PROPERTY

includes both appropriable and non-appropriable objects

things which are susceptible of appropriation and which are already possessed and found in the possession of man

Note: Strictly speaking, “thing” is NOT synonymous with “property”. HOWEVER, the New Civil Code uses these terms interchangeably.

Requisites/Characteristics: (USA)1. u tility – ability to serve as a means to satisfy

human needs2. s ubstantivity or individuality – separate and

autonomous existence3. a ppropriability – even if not yet actually

appropriated (Reyes-Puno, p.1)

CLASSIFICATION OF PROPERTY

Kinds of Properties:1. Immovable or real (Art. 415)2. Movable or personal (Arts. 416, 417)

The human body, whether alive or dead, is neither real nor personal property, for it is not even property at all, in that it generally cannot be appropriated. Under certain conditions, the body of a person or parts thereof may be the subject matter of a transaction (See RA No. 349, RA No. 7170, RA No. 7719).

Parties to a contract may treat as personal property that which by nature is real property;

and it is a familiar phenomenon to see things classed as real property for purposes of taxation which on general principle might be considered personal property (Standard Oil Co. vs. Jaranillo GR No. 20329, March 16, 1923).

IMMOVABLE PROPERTIES

Categories: (NIDA)1. Real by nature – it cannot be carried from

place to place (pars. 1 & 8, Art. 415) 2. Real by incorporation – attached to an

immovable in a fixed manner to be an integral part thereof (pars. 1–3 Art. 415)

3. Real by destination – placed in an immovable for the utility it gives to the activity carried thereon (pars. 4–7 and 9 Art. 415)

4. Real by analogy – it is so classified by express provision of law (par. 10, Art. 415)

Types of Immovable Properties (Art. 415)1. Land, buildings, roads and constructions

of all kinds adhered to the soil Where a building is sold to be demolished

immediately, it is to be regarded as movable because the subject matter of the contract is really the materials thereof.

Buildings are immovables by incorporation. Hence, their adherence to the land must be permanent and substantial. Portable structures are not immovables.

A building is an immovable even if not erected by the owner of the land. The only criterion is union or incorporation with the soil. (Ladera vs. Hodges CA-GR No. 8027-R, September 23, 1952).

A building is real property thus, its sale as annotated in the Chattel Mortgage Registry cannot be given the legal effect

EXECUTIVE COMMITTEE:HERBERT CALVIN ABUGAN overall chair and chair academics operations, MANOLO ADEL SANTOS chair hotel operations, GRACE SARAH TRIA vice chair for operations, JUAN CARLOS NUESTRO vice chair for academics, MAE ANGELIE ETANG vice chair for secretariat, KRISTINE ANNABELLEE HIPOS vice chair for finance, EIREENE XINA ACOSTA vice chair for edp, ACE JELLO CONCEPCION vice chair for logistics

CIVIL LAW:FRANCESCA LOURDES SENGA subject chair, SHEENA MARIE ABELLA assistant subject chair, ACE ARVIN GANDO edp, FRANCESCA LOURDES SENGA persons and family relations, CRISCELYN CARAYUGAN property, MA. PELISA CORAZON PARIDO and MARY IVY ANNE GALANG wills and succession, MARIA DANIAFLOR BERAMO and COLLEEN INFANTE obligations and contracts, MARY IVY ANNE GALANG sales and lease, EVA CHRISTINE NAPARAN partnership, agency and trust, KATHERINE ANN ASILO credit transactions, SHEENA MARIE ABELLA torts and damages, JAN PEARL PORTUGAL land titles and deeds, JAN MANUELLE REYES conflict of laws

MEMBERS:Aldren Abrigo, Lloyd Elgene Apostol, Joanna Arellano, Jonathan Bajeta, Paul Isaac Barrameda, Barbara Jeniffer Bautista, Arlene Borja, Leana BlascoKeith Francis Briones, Angelita Calalang, Uelah Cangco, Kristine Paula Chu, Benedicto Claravall, Diane Therese Dauz, Herbert Davis, Riyah Lalaine Domingo, Ana Ofloda delos Reyes, Ramona Diňozo, Clarissa Enano-Caenano, Carla Esplana, Diana Fajardo, Leoponville Ndota Wambui Gitau, Kristine Carmela Gonzales, Daisy Joy Jalova, Roehl Joson, Jackie Lamug, Flocerfina Lloren, Jerome Matas, Herbert Matienzo, Charlene Clara, Mendoza, Kristel Concepcion Ona, Joanna Marie Paguio, Patricia Salang, Christine Santos, Rio Rose Santos, Charlotte Sayson, Mary Meilani Suyat, Jezreel Caridad Taguba, Florence Tolentino, Philip Torres, Gilda Villanueva, Joan Grace Wilson, Joshua Villena, Raul Canon, Deogracias Natividad


of registration in the Registry of Real Property (Leung Yee vs. Strong Machinery Co. GR No. L-11658 February 15, 1918).

2. Trees, plants, and growing fruits When trees are cut or uprooted,

incorporation ceases and they become movables; timber is still integral part of an immovable property when it constitutes the natural product of the latter.

For purposes of attachment, execution, and the Chattel Mortgage Law, growing crops have the nature of personal property (Sibal vs. Valdez GR No. L-27352, August 4, 1927).

3. Everything attached to an immovable in a fixed manner The attachment need not be made by the

owner. The breakage or injury, in case of

separation, must be substantial. The fact that the machineries were bolted

or cemented on real property mortgaged does not make them ipso facto immovable under Art. 415 (3) and (5) as the parties intent has to be looked into. Even if the properties appear to be immovable by nature, nothing prohibits the parties from treating them as chattels to secure an obligation under the principle of estoppel (Tsai vs. CA, GR No. 120098, October 2, 2001).

4. Statues, reliefs, paintings, or other objects for use or ornamentationRequisites:a. Placed by the owner or by a tenant as

agent of the ownerb. With the intention of attaching them

permanently, even if adherence will not involve breakage or injury

5. Machinery, receptacles, instruments, or implements for an industry or worksRequisites:a. The machinery, etc. must be placed by

the owner of the tenement or his agentb. The industry or works must be carried on

in a building or on a piece of landc. The machinery, etc. must tend directly to

meet the needs of the said industry or works

Movable equipments, to be immobilized in contemplation of law, must be essential and principal elements of an industry or works (Mindanao Bus Co. vs. City Assessor and

Treasurer GR No. L-17870, September 29, 1962).

Machinery, movable in nature, becomes immobilized when placed on a plant by the owner of the property but not so when placed by a tenant, usufructuary or a person having only a temporary right unless such person acted as agent of the owner (Davao Sawmill Co. vs. Castillo GR No. 40411, August 7, 1935).

There are 2 views on the effect of the temporary separation of movables from the immovables to which they are attached:

a. They continue to be regarded as immovables.

b. Fact of separation determines the condition of the object (supported by Paras and Tolentino)

If the machine is still in the building, but is no longer used in the industry, the machine reverts to the condition of a chattel. On the other hand, if still needed for the industry, but separated from the tenement temporarily, the property continues to be an immovable (Paras, p.20).

6. Animal houses, pigeon houses, beehives, fish ponds, etc.Requisites:a. Placed by the owner, or by a tenant as

agent of the owner, with the intention of permanent attachment

b. Forms a permanent part of the immovable

7. Fertilizer “Actually used” means that it has been

spread over the land.

8. Mines, quarries and slag dumps They are considered as realty only if the

matter remains unsevered from the soil. Once severed, they become personalty.

9. Docks and Structures Vessels are considered personal property

under the Civil Law as well as under the common law, although occasionally referred to as a peculiar kind of personal property. (Phil. Refining Co., Inc. vs. Jarque GR No. 41506, March 25, 1935).

10. Contracts for Public works, and servitudes and other real rights A personal right is always regarded as

personal property. The exception is in the case of contracts for public works which are considered as real property.

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San Beda College of Law MEMORY AID IN CIVIL LAW| 44

MOVABLE PROPERTIES

Tests:1. By exclusion: all not included in Art. 415 2. By description: an object is movable if:

a. It can be transported from place to place; b. Without substantial injury to the

immovable to which it is attached.3. Real Property considered as personal

property by special provision of law.

Kinds of Movable Properties (ASFTOS):1. Those movables susceptible of appropriation

which are not included in the preceding article2. Real property which by any special provision

of law is considered personalty3. F orces of nature which are brought under

control by science4. In general, all things which can be

transported from place to place without impairment of the real property to which they are fixed (Art. 416)

5. O bligations and actions which have for their object movables or demandable sums

6. S hares of agricultural, commercial and industrial entities, although they may have real estate (Art. 417)

Classifications of Movables:1. By Nature:

a. Consumable - cannot be used according to its nature without it being consumed.

b. Non-consumable - any other kind of movable property (Art. 418).

2. By Intention:a. Fungible - replaceable by an equal quality

and quantity, either by nature of things or agreement.

b. Non-fungibles - irreplaceable because identical objects must be returned.

Note: The New Civil Code, in many instances, uses the terms consumable and fungible interchangeably.PROPERTY IN RELATION TO WHOM IT BELONGS (Arts. 419–425)Property is either of:1. public dominion2. private ownership

I. Property of Public Dominion

Concept: It does not import the idea of ownership. It is not owned by the state but simply under its jurisdiction and administration for the collective enjoyment of people. The ownership of such properties is in the social group, whether national, provincial or municipal.

Purpose: To serve the citizens and not the state as a juridical person.

Kinds:1. For public use – may be used by anybody2. For public service – may be used only by

authorized persons 3. For the development of national wealth

The charging of fees to the public does not determine the character of the property, whether it is of public dominion or not. Art. 420 defines property of public dominion as one “intended for public use”. Even if the government collects toll fees, the road is still “intended for public use” if anyone can use it under the same terms and conditions as the rest of the public (MIIA vs. CA, GR No. 155650, July 20, 2006).

Characteristics: (OI-PAE)1. O utside the commerce of man2. I nalienable, but when it is no longer needed

for public use or service, it may be declared patrimonial property.

3. Cannot be acquired by prescription4. Not subject to attachment or execution5. Cannot be burdened with easements

Note: They CANNOT be registered under the land registration law and be the subject of a Torrens title. The character of public property is not affected by possession or even a Torrens Title in favor of private persons (Palanca vs. Commonwealth, GR No. 46373, Jan. 29, 1940). As property of public dominion, the Roppongi

lot is outside the commerce of man. The fact that it has not been used for a long time does not automatically convert it to patrimonial property. The conversion happens only if the abandonment is definite and upon a formal declaration on the part of the government to withdraw it from public use (Laurel vs. Garcia GR No. 92013, July 25, 1990).

The Executive and possibly the Legislative Departments have the authority and the power to make the declaration (Natividad vs. Director of Lands 37 O.G. 2906).

II. Property of Private Ownership

Kinds:1. Property owned by the state and its political

subdivisions in their private capacity and is known as patrimonial property (Art. 421-424)

2. Property belonging to private persons (Art. 425)

Patrimonial Property of the State


1. Property of the State owned in a private or proprietary capacity

2. Property of public dominion, when no longer intended for public use or public service, shall form part of the patrimonial property

3. The state has the same rights over this kind of property as a private individual in relation to his own private property

Property of Political Subdivisions1. Property for public use – consist of roads,

streets, squares, fountains, public waters, promenades and public works for public service paid for by the LGUs.Note: The enumeration in Art. 424 are not exclusive.

2. Patrimonial Property – all other properties possessed by LGUs without prejudice to provisions of special laws

Note: Arts. 423 and 424 speak of property for public use, indicating that property for public service is patrimonial. However, the Supreme Court, in Province of Zamboanga Del Norte vs. City of Zamboanga (GR No. L-23922, June 30, 1969), categorically stated that “this court is not inclined to hold that municipal property held and devoted to public service is in the same category as ordinary private property. The classification of municipal property devoted for distinctly governmental purposes as public, under the Law of Municipal Corporations, should prevail over the Civil Code in this particular case.” The Law of Municipal Corporations was considered as a special law in the context of Art. 424 of the NCC. Properties of public dominion devoted to

public use are outside the commerce of men and cannot be disposed of or leased by the LGU to private persons. LGUs have no authority to control or regulate the use of public properties unless specific authority is vested upon them by Congress (Macasiano vs. Diokno GR N. 97764, August 10, 1992).

The rights to enjoy, dispose, and recover a thing without further limitations than those established by law or the will of the owner.

SUBJECT-MATTER (Art. 427)1. thing - usually refer to corporeal property2. right - whether real or personal, are classified

as incorporeal property

RIGHTS INCLUDED:1. Right to enjoy: (PUFA)

a. to possess (jus possidendi)b. to use (jus utendi)c. to the fruits (jus fruendi) and accessions

d. to abuse (jus abutendi)2. Right to dispose: (DATE)

a. to destroyb. to alienatec. to transformd. to encumber

3. Right to vindicate: (PR)a. p ursuitb. r ecovery

4. Right to exclude: (ER)1. to enclose, fence and delimit2. to repel intrusions even with force

CHARACTERISTICS: (GEEPI)1. G eneral – the right to make use of all the

possibilities or utility of the thing owned, except those attached to other real rights existing thereon.

2. E lastic – power/s may be reduced and thereafter automatically recovered upon the cessation of the limiting rights.

3. E xclusive – there can only be one ownership over a thing at a time. There may be two or more owners but only one ownership.

4. P erpetuity – ownership lasts as long as the thing exists. It cannot be extinguished by non user but only by adverse possession.

5. I ndependence – it exists without necessity of any other right.

LIMITATIONS: (GOSIP)1. G eneral limitations imposed by the State for

its benefit2. Limitations imposed by the owner himself3. S pecific limitations imposed by law4. I nherent limitations arising from conflict with

other rights5. Limitations imposed by the party transmitting

the property either by contract or by will

DE FACTO CASE OF EMINENT DOMAIN Expropriation resulting from the actions of

nature as in a case where land becomes part of the sea. The owner loses his property in favor of the state without any compensation.

When the sea moves towards the estate and the tide invades it, the invaded property becomes foreshore land and passes to the realm of the public domain (Republic vs. CA, GR No. 100709, November 14, 1997).

PRINCIPLE OF SELF-HELP (Art. 429) The owner or lawful possessor of a thing has

the right to exclude any person from the enjoyment and disposal of the property by the use of such force as may be necessary to repel or prevent actual or threatened unlawful physical invasion or usurpation of his property.Requisites: (RONA)1. r easonable force

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OWNERSHIP


2. o wner or lawful possessor is the person who will exercise

3. n o delay in one’s exercise4. a ctual or threatened physical invasion or

usurpation

DOCTRINE OF INCOMPLETE PRIVILEGE OR STATE OF NECESSITY (Art. 432)General rule: A person cannot interfere with the right of ownership of another.

Exception: Doctrine of Incomplete Privilege or State of Necessity

Requisites: (ID)1. I nterference necessary to avert an

imminent and threatened danger2. D amage to another much greater than

damage to property

LEGAL REMEDIES TO RECOVER POSSESSION OF ONE’S PROPERTY:1. Personal Property

Replevin – a remedy for the recovery of possession of personal property which is governed by Rule 60 of the Rules of Court

2. Real Propertya. Accion interdictal: A summary action to

recover physical or material possession of property. It must be brought in the proper

municipal trial court or metropolitan trial court within one year from the time the cause of action arises.

i. Forcible entry (detencion): An action for recovery of material possession of real property when a person originally in possession was deprived thereof by force, intimidation, strategy, threat or stealth.

ii. Unlawful Detainer (desahuico): An action for recovery of possession of any land or building by a landlord, vendor, vendee, or other person against whom the possession of the same was unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract.

Forcible Entry and Unlawful Detainer Distinguished

FORCIBLE ENTRYUNLAWFUL DETAINER

As to when possession became unlawful

Possession of the defendant is unlawful from the beginning as he acquires possession by force, intimidation, strategy, threat or stealth

Possession is inceptively lawful but becomes illegal from the time defendant unlawfully withholds possession after the expiration or termination of his right thereto.

As to the necessity of demand

No previous demand for the defendant to vacate is necessary

Demand is jurisdictional if the ground is non–payment of rentals or failure to comply with the lease contract

As to necessity of proof of prior physical possession

Plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant

Plaintiff need not have been in prior physical possession

As to when the 1 year period is counted from

1 year period is generally counted from the date of actual entry on the land

1 year period is counted from the date of last demand or last letter of demand

b. Accion publiciana: An ordinary civil proceeding to recover the better right of possession of property and is resorted to when the dispossession has lasted for more than 1 year. The issue involved is not possession

de facto but possession de jure of realty independent of the title.

Must be brought in the proper regional trial court within a period of 10 years from the time the cause of action arises.

c. Accion reivindicatoria: An action to recover real property based on ownership. The object is the recovery of dominion over the property as owner. Must be brought in the proper

regional trial court within a period of 10 years from the time the cause of action arises.

Requisites:i. The thing must be corporeal,

concrete, and determinateii. Proof of identity


iii. Proof of title (Reyes-Puno, p.24)

SURFACE RIGHTS (Art. 437)The owner of parcel of land is the owner of its surface and everything under it.

Limitations:Horizontally: extends up to the boundariesVertically: extends below the surface and above it to the extent required by the economic interest of or utility to the owner, in relation to the exploitation that may be made of the propertyAirspace: the owner cannot complain of the reasonable requirements of aerial navigation

HIDDEN TREASURE (Arts. 438 & 439)Any hidden or unknown deposit of money, jewelry or other precious objects, the lawful ownership of which does not appear

General rule: It belongs to the owner of the land, building or other property on which it is found.

Exceptions: The finder is entitled to ½ provided:1. Discovery was made on the property of

another, or of the state or any of its political subdivisions;

2. The finding was made by chance;3. The finder is not a co–owner of the property

where it is found;4. The finder is not a trespasser;5. The finder is not an agent of the landowner;6. The finder is not married under the absolute

community or the conjugal partnership system (otherwise his share belongs to the community).

It is necessary that no known owner appears. “Hence, that money found in a library, when the books were delivered to the legatees in a testamentary proceeding, could not be considered a treasure because it was shown that the library had been used by the testator and that money consisted, in greater part, of this kind in circulation during the life of the testator” (1 Capistrano 394).

ACCESSION (Arts. 440– 475)The right by virtue of which the owner of a thing becomes the owner of everything that is produced thereby or which is incorporated or attached thereto, either naturally or artificially.

ACCESSORIES - things joined to or included with the principal thing for the latter’s embellishment, better use, or completion

Classifications:1. Accession Discreta – the right pertaining to

the owner of a thing over everything produced thereby

Fruits - all periodical additions to a principal thing produced by forces inherent to the thing itself

Requisites:a. increase or addition to the original thingb. at repeated intervalsc. by inherent forces

Kinds of Fruitsa. natural fruits – spontaneous products of

the soil, the young and other products of animals

b. industrial fruits – those produced by lands of any kind through cultivation or labor

c. civil fruits – rents of buildings, price of leases or lands and the amount of perpetual or life annuities or other similar income

Bonus to planters for the risk undergone in mortgaging property is NOT a civil fruit of the mortgaged property (Bachrach Motor Co. vs. Talisay-Silay Milling Co. GR No. 35223, September 17, 1931).

General rule: To the owner of the principal belongs the natural, industrial, and civil fruit.Exceptions: If the thing is: (PULA)a. in possession of a possessor in good

faith;b. subject to a usufruct;c. l eased or pledged; ord. in possession of an antichretic creditor

General rule: Expenses of production, gathering and preservation (whether more or less than the value of the fruits) must be borne by the receiver of the fruits.

Exception: The rule does NOT always apply to pending fruits.

2. Accession Continua – the right pertaining to the owner of a thing over everything that is incorporated or attached thereto either naturally or artificially; by external forces. a. With respect to real property

i. accession industrial building, planting, sowing

ii. accession natural alluvium, avulsion, change of

course of rivers, formation of islands

b. With respect to personal property

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i. adjunction or conjunctionii. commixtion or confusioniii. specification

Basic Principles: (GONE BAD)1. He who is in good faith may be held

responsible but will not be penalized.2. To the owner of a thing belongs the extension

or increase of such thing.3. Bad faith of one party neutralizes the bad

faith of the other.4. There should be no unjust enrichment at the

expense of others.5. B ad faith involves liability for damages.6. A ccessory follows the principal.7. Accession exists only if the incorporation is

such that separation would either seriously damage the thing or diminish its value.

Right of Accession With Respect To Real Property

Accession IndustrialTable of Rights and Obligations:

LANDOWNER (LO)

BUILDER, PLANTER,

SOWER (B,P,S)

OWNER OF THE

MATERIALS (OM)

Good FaithAcquire improvements and pay to B, P, S indemnity; subsidiarily liable to owner of materialsa. sell land to B or P except if the value of the land is considerably moreb. rent to S (448, 546, 455)

Good FaithRight of retention for necessary and useful expensePay value of materials to owner of materials

Good Faith Collect value of materials primarily from B, P, S; subsidiarily from land owner if B, P, S insolvent Remove only if without injury (455, 447)

Good FaithAcquire improvements and pay indemnity to B, P, SA. Sell to B, P except if the value of land is considerably more, forced leaseWithout subsidiary liability for cost of material

Good FaithRight of retention for necessary and useful expensesKeep building, planting or sowing w/o indemnity to owner of materials and collect damages (546, 449)

Bad FaithLose them without right to indemnity (449)

Good FaithOption to:Acquire

Bad FaithRecover necessary

Bad FaithRecover value from B, P, S

improvement w/o paying indemnity and collect damages, orDemolition or restoration, and collect damages, orSell to B, P or rent to S, and collect damagesPay necessary expenses to B, P, S (449, 450, 451)

expenses for preservationLose improvements w/o right to indemnity from LO (452) unless the LO sells land

(as if both acted in good faith)If B, P, S acquires improvements, remove materials if w/o injury (447)No action versus LO

Bad Faith{Same as though all acted in good faith (453)}

Bad FaithAcquire improvements after paying indemnity and damages to B, P, SSubsidiarily liable to owner of materials (454, 447, 455)

Good FaithRemove improvements in any eventBe indemnified for damages

Good FaithRemove materials if w/o injuryCollect value of materials, primarily from B, P, S; subsidiarily from LO (447, 455)

Bad FaithAcquire improvements after indemnity to B, P, S; subsidiarily liable to owner of materialsa. Sell to B, P except: if the value is considerably moreb. Rent to S (453, 448, 546, 548, 455)

Bad FaithRight of retention for necessary expensesPay value of materials to owner of materials and pay him damages (546, 447)

Good FaithCollect value of materials primarily form B, P, S; subsidiarily from LO2. Collect damages3. If B, P, S acquires improvements remove materials in any event (447, 455)

Good FaithOption to:Acquire w/o paying indemnity and collect damagesSell to B, P and rent to S and collect damagesDemolish or restore and collect damagesPay necessary expenses to B, P, SSubsidiarily liable to owner

Bad FaithRecover necessary expenses (452, 443)Lose improvements w/o right of retention from LO (452) unless LO sells the land

Good FaithCollect value of materials and damages from B, P, S and subsidiarily from LORemove materials in any event if B, P, S acquires improvements


of materials (449, 450, 451)Bad FaithAcquire improvements & pay indemnity & damages to B, P, S (454,447)

Good FaithIndemnity for damagesRemove improvements in any event (454,447)

Bad FaithNo indemnity; lose materials (449)

Article 448:

Application: Applies only when the builder, planter or

sower believes he has the right to build, plant or sow because he thinks he owns the land or believes himself to have a claim of title (Morales vs. CA, GR No. 126196, January 28, 1998).

When the co-ownership is terminated by a partition and it appears that the house of an erstwhile co-owner has encroached upon a portion pertaining to another co-owner which was however made in good faith, then the provisions of Art. 448 should apply to determine the respective rights of the parties (Ignao vs. Intermediate Appellate Court GR No. 72876, January 18, 1991).

Does not apply where one’s interest in the land is merely that of a holder such as a mere lessee under a rental contract (Balucanag vs. Francisco GR No. L-33422, May 30, 1983), an agent, or a usufructuary (Macasaet vs. Macasaet GR No. 154391, September 30, 2004).

The provision on indemnity in Art. 448 may be applied by analogy considering that the primary intent of the law is to avoid a state of forced co–ownership especially where the parties agree that Arts. 448 and 546 are applicable and indemnity for the improvements may be paid although they differ as to the basis of the indemnity. It is the current market value of the improvements which should be made the basis of reimbursement to the builder in good faith (Pecson vs. CA, GR No. 94033, May 29, 1995).

Options of the landowner: The owner of the land shall have the right to

appropriate as his own the building, planting or sowing, after payment of the necessary and useful expenses. The owner of the land may also oblige the builder, planter or sower to pay the price of the land. If the owner chooses to sell his land, the builder, etc. must purchase the land; otherwise, the owner may remove the improvements thereon. The builder, etc. is not obliged to purchase the

land if its value is considerably more than the building. In such case, the builder, etc. must pay rent. If the parties cannot come to terms over the conditions of the lease, the court must fix the terms thereof. (Ballatan vs. CA, GR No. 125683, March 2, 1999).

The landowner may not refuse both to pay for the building and to sell the land and instead seek to compel the owner of the building to remove the building from the land. He is entitled to such removal ONLY when, after having chosen to sell the land, the other party fails to pay for said land (Ignacio vs. Hilario GR No. L-175, April 30, 1946).

Should no other arrangement be agreed upon, the owner of the land does not automatically become the owner of the improvement (Filipinas Colleges, Inc. vs. Timbang GR No. L-12812, September 29, 1959).

Right to choose: It is the owner of the land who must exercise

the option because his right is older and because, by the principle of accession, he is entitled to the ownership of the accessory (Bernardo vs. Bataclan GR No. 44606, November 28, 1938).

The so-called “workable solution,” as provided in the case of Grana vs. CA (GR No. L-49219, April 18, 1988) is one where the Court orders the owner of the land to sell to the builder, etc. the part of the land intruded upon, and thereby depriving him of his right to choose, because it would be impractical to choose the first alternative for the whole improvement might be rendered useless.

Accession natural

1. Alluvion or Alluvium (Art. 457-458)Increment which lands abutting rivers gradually receive as a result of the current of the waters

Accretion - the process by which a riparian land gradually and imperceptibly receives addition made by the water to which the land is contiguous

Requisites of alluvion or accretion:a. the deposit or accumulation of soil or

sediment must be gradual and imperceptible (increase must be comparatively little)

b. the accretion must result from the effects or action of the current of the water

c. that the land where accretion takes place is adjacent to the bank of the river

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Accretions belong to the riparian owners upon whose lands the alluvial deposits were made (Agustin vs. Intermediate Appellate Court GR Nos. 66075-76, July 5, 1990).

Reasons for the rule:a. To compensate the owner for losses

which they may suffer by erosion.b. To compensate them for the burdens of

legal easements, which are imposed upon them

c. Because it is the owner of the contiguous land who can utilize the increment to the best advantage

d. Because this is the only feasible solution, since the previous owners can no longer be identified.

An alluvion is automatically owned by the riparian owner from the moment the soil deposit can be seen but the additional area does not automatically become registered land just because the lot which receives such accretion is covered by a Torrens title. The riparian owner must register the additional area (Heirs of E. Navarro vs. Intermediate Appellate Court GR No. 68188, October 13, 1997).

Failure to register the acquired alluvial deposit by accretion subjects said accretion to acquisition thru prescription by third persons (Reynante vs. CA, GR No. 95907, April 8, 1992).

A riparian owner cannot acquire the addition to his land caused by special works (e.g., dikes) expressly intended by him to bring about accretion (i.e., for reclamation purposes) and not to protect his property from the destructive force of the waters of the river (Republic vs. CA, GR No. L-43105, August 31, 1984).

In the absence of evidence that the change in the course of the river was sudden, the presumption is that the change was gradual and was caused by alluvium and erosion (Payatas-Estate Improvement Co. vs. Tuason GR No. L-30067, March 23, 1929).

2. Avulsion (Art. 459)The transfer of a known portion of land from one tenement to another by the force of the current. The portion of land must be such that it can be identified as coming from a definite tenement.

Requisites:

a. the segregation and transfer must be caused by the current of a river, creek or torrent

b. the segregation and transfer must be sudden or abrupt

c. the portion of land transported must be known or identified

Note: The owner must remove (not merely claim) the transported portion within two years to retain ownership. Art. 460 applies only to uprooted trees. If

a known portion of land with trees standing thereon is carried away by the current to another land, Art. 459 govern and the 2 year period applies.

In case of uprooted trees, the owner retains ownership if he makes a claim within 6 months. This does not include trees which remain planted on a known portion of land carried by the force of the waters. In the latter case, the trees are regarded as accessions of the land through gradual changes in the course of adjoining stream (Payatas-Estate Improvement Co. vs. Tuason GR No. L-30067, March 23, 1929).

Alluvium and Avulsion DistinguishedALLUVIUM AVULSION

gradual and imperceptible

sudden or abrupt process

soil cannot be identified identifiable and verifiable

belongs to the owner of the property to which it is attached

belongs to the owner from whose property it was detached

3. Change of Course of Rivers (Art. 461–462)Requisites: (NAPA)a. There must be a natural change in the

course of the waters of the river; otherwise, the bed may be the subject of a State grant (Reyes–Puno, p.54).

b. The change must be abrupt or suddenc. The change must be permanent; the rule

does not apply to temporary overflowingd. There must be abandonment by the

owner of the bed i.e. a decision not to bring back the river to the old bed. (Reyes–Puno, p.53).

Once the river bed has been abandoned, the owners of the invaded land become owners of the abandoned bed to the extent as provided by Art. 462. No positive act is needed on their part, as it is subject thereto ipso jure from the


moment the mode of acquisition becomes evident.

It does not apply to cases where the river simply dries up because there are no persons whose lands are occupied by the waters of the river.

4. Formation of Islands (Arts. 463–465)

Rules on Ownership:a. If formed by the sea:

i. within territorial waters – Stateii. outside territorial waters – to the first

occupantb. If formed in lakes, or navigable or

floatable rivers – Statec. If formed on non–navigable or non–

floatable rivers:i. if nearer to one margin or bank – to

the nearer riparian ownerii. if equidistant from both banks – to the

riparian owners, by halves

There is no accession when islands are formed by the branching of a river; the owner retains ownership of the isolated piece of land.

Right of Accession With Respect To Personal Property

Basic Principle: Accession exists only if separation is not feasible. Otherwise, separation may be demanded.

Kinds:1. Adjunction/ conjunction (Arts. 466-471): The

union of two movable things belonging to different owners, in such a manner that they cannot be separated without injury, thereby forming a single object

Requisites:a. the two things must belong to different

ownersb. that they form a single object, or that their

separation would impair their nature

Kinds:a. inclusion or engraftmentb. soldadura or soldering

i. ferruminacion – if both the accessory and principal objects are of the same metal

ii. plumbatura – if the accessory and principal objects are of different materials

c. escritura or writingd. pintura or paintinge. tejido or weaving

Tests to determine principal in adjunction:a. the “rule of importance and purpose” (Art.

467)b. that of greater value – if they are of

unequal valuesc. that of greater volume – if they are of

equal valuesd. that of greater merits – take into

consideration all pertinent provisions applicable as well as the comparative merits, utility and volume

Rules on Who is Entitled:a. Adjunction in good faith by either owner:

General rule: Accessory follows the principalExceptions: If the accessory is much more precious than the principal, the owner of the accessory may demand the separation even if the principal suffers some injury

b. Adjunction in bad faith by the owner of the principalOptions of the owner of the accessory:i. to recover the value plus damagesii. to demand separation plus damages

c. Adjunction in bad faith by the owner of the accessoryi. he loses the accessoryii. he is liable for damages

When separation of things allowed:i. separation without injuryii. accessory is more precious than the

principaliii. owner of the principal acted in bad

faith

2. Mixture (Arts. 472-473): Union of materials where the components lose their identity

Kinds:a. Commixtion – mixture of solidsb. Confusion – mixture of liquids

Rules:a. By the will of both owners or by accident:

each owner acquires an interest in proportion to the value of his material

b. By one owner in good faith: apply rule (a)c. By one owner in bad faith:

i. he loses all his rights to his own material

ii. he is liable for damages

3. Specification (Art. 474): The transformation of another’s material by the application of labor.

51


The material becomes a thing of different kind. Labor is the principal

Rules:a. Owner of the principal (worker) in good

faith:i. maker acquires the new thingii. he must indemnify the owner of the

materialException: if the material is more valuable than the resulting thing, the owner of the material has the option:i. to acquire the work, indemnifying for

the labor, orii. to demand indemnity for the material

b. Owner of the principal (worker) in bad faith, the owner of the material has the option:i. to acquire the result without indemnityii. to demand indemnity for the material

plus damagesc. Owner of the material in bad faith

i. he loses the materialii. he is liable for damages

Indemnity of the material, how paid (Art 471):a. The delivery of the same quality, kind and

quality; orb. The payment of the value, as per expert

appraisal.

In determining the value, sentimental value must be taken into account.

Adjunction, Mixture and Specification Distinguished

ADJUNCTION MIXTURE SPECIFICATION

Involves at least 2 things

Involves at least 2 things

May involve one thing (or more) but form is changed

Accessory follows the principal

Co-ownership results

Accessory follows the principal

Things joined retain their nature

Things mixed or confused may either retain or lose their respective natures

The new object retains or preserves the nature of the original object.

QUIETING OF TITLE (Arts. 476–481)

Cloud on titleA semblance of title, either legal or equitable, or a claim or a right in real property, appearing in some legal form but which is, in fact, invalid or which would be inequitable to enforce

Action to quiet titleAn action to remove cloud or to quiet title is a remedy or proceeding in equity, the purpose of which is the declaration of the invalidity of a claim on a title or the invalidity of an interest in property adverse to that of the plaintiff, and thereafter to free the plaintiff and those claiming under him form any hostile claim thereon.

General rule: Only real property could be the subject matter of quieting of title.

Exception: Certain personal properties like vessels may be the object of quieting of title.

Nature:Actions for quieting of title are neither suits in rem nor suits in personam. They are suits against a particular person in respect to the res and the judgment will apply only to the property in dispute. They are suits quasi in rem (Realty Sales Enterprises, Inc. vs. Intermediate Appellate Court GR No. L-67451, September 28, 1987).

Requisites: (LCD-R)1. plaintiff must have a legal or equitable title to,

or interest in the real property which is the subject matter of the action;

2. there must be a cloud in such title;3. such cloud must be due to some instrument,

record, claim, encumbrance or proceeding which is APPARENTLY VALID but is in truth invalid, ineffective, voidable or unenforceable, and is prejudicial to the plaintiff’s title; and

4. plaintiff must return to the defendant all benefits he may have received from the latter, or reimburse him for expenses that may have redounded to his benefit.

Classes:1. Remedial (Action to quiet title) - the action

may be brought to remove a cloud or quiet title to real property or an interest therein (Art. 476 par. 1)

2. Preventive (Action quia timet) - to prevent a future cloud (doubt) from being cast upon the title to real property or an interest therein (Art. 476 par. 2).

Prescriptive Period:1. plaintiff in possession – imprescriptible 2. plaintiff not in possession – 10 (ordinary) or

30 years (extraordinary)

The action to quiet title does NOT apply:1. to questions involving interpretation of

documents2. to mere written or oral assertions of claims,

EXCEPT:


a. if made in a legal proceedingb. if it is being asserted that the instrument

or entry in plaintiff’s favor is not what it purports to be

3. to boundary disputes4. to deeds by strangers to the title UNLESS

purporting to convey the property of the plaintiff

5. to instruments invalid on their face6. where the validity of the instrument involves

pure questions of law

Duty of plaintiff to restore benefits and expenses (Art. 479):1. Restoration is required whenever the

complainant is shown to be morally bound to reimburse the defendant

2. Even if the debt is not enforceable by reason of the statue of limitations, payment may be required by the court

Reason: “He who seeks equity must do equity.”

RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING (Arts. 482–483):

As to buildings: The complainant must show that his property

is adjacent to the dangerous construction, or must have to pass by necessity in the immediate vicinity.

Lack of knowledge of the falling condition of the structure will not excuse the owner from liability.

If the damage is caused by defects in the construction, then the builder is responsible for the damages.

As to trees: The fall of the tree, occasioned by the inaction

or negligence of the owner, someone has been hurt, the owner of the tree is liable for damages under the law on quasi-delict (Art. 2191, par. 3).

That form of ownership which exists whenever an undivided thing or right belongs to different persons. By the nature of co–ownership, a co–owner

cannot point to any specific portion of the property owned in common as his own because his share in it remains intangible and ideal (Avila et al. vs. Sps. Barabat GR No. 141993, May 17, 2006).

The possession of a co–owner is like that of a trustee and shall not be regarded as adverse to the other co–owner but in fact beneficial to

all of them (Salvador vs. CA, G.R. No. 109910, April 5, 1995)

REQUISITES:1. Plurality of owners2. The object of ownership must be a thing or

right which is undivided3. Each co–owner’s right must be limited only to

his ideal share of the physical wholeCHARACTERISTICS: (PSNCLG)1. P lurality of subjects/owners2. there is a single object which is not materially

divided 3. there is no mutual representation by the co–

owners4. it exists for the common enjoyment of the co–

owners5. it has no distinct legal personality6. it is governed first of all by the contract of the

parties; otherwise, by special legal provisions, and in default of such provisions, by the provisions of Title III on co–ownership

SOURCES: (C2LOST)1. C ontract2. C hance3. L aw4. O ccupation5. S uccession6. T estamentary disposition or donation inter

vivos

CO–OWNERSHIP AND PARTNERSHIP DISTINGUISHED

CO–OWNERSHIP PARTNERSHIPCan be created without the formalities of a contract

Can be created only by contract, express or implied

Has no juridical or legal personality

Has juridical personality distinct from the partners

Purpose is collective enjoyment of the thing

Purpose is to obtain profits

Co–owner can dispose of his shares without the consent of the others with thetransferee automatically becoming a co–owner.

A partner, unless authorized, cannot dispose of his share and substitute another as a partner in his place.

There is no mutual representation.

A partner can generally bind the partnership.

Distribution of profits must be proportional to the respective interests of the co–owners

Distribution of profits is subject to the stipulation of the parties

53

CO- OWNERSHIP


A co–ownership is not dissolved by the death or incapacity of a co–owner.

Death or incapacity dissolves the partnership

No public instrument needed even if real property is the object of the co–ownership

May be made in any form except when real property is contributed

An agreement to keep the thing undivided for a period of more than 10 years is void.

There may be agreement as to a definite term without limit set by law.

RULES:I. Rights of each co–owner as to the thing

owned in common: (USBRAP–LDP)1. To use the thing owned in common

Limitations:a. use according to the purpose for

which it was intendedb. interest of the co–ownership must not

be prejudicedc. other co–owners must not be

prevented from using it according to their own rights

2. To share in the benefits and charges in proportion to the interest of each. Any stipulation to the contrary is void.

3. To the benefits of prescription: prescription by one co–owner benefits all.

4. R epairs and taxes: to compel the others to share in the expenses of preservation even if incurred without prior notice. The co–owner being compelled may

exempt himself from the payment of taxes and expenses by renouncing his share equivalent to such taxes and expenses. The value of the property at the time of the renunciation will be the basis of the portion to be renounced.

5. A lterations: to oppose alterations made without the consent of all, even if beneficial.Alteration is an act by virtue of which a co–owner changes the thing from the state in which the others believe it should remain, or withdraws it from the use to which they desire it to be intended.

6. To protest against seriously prejudicial decisions of the majority

7. L egal redemption: to be exercised within 30 days from written notice of sale of an undivided share of another co–owner to a stranger

8. To defend the co–ownership’s interest in court

9. To demand partition at any timePartition is the division between 2 or more persons of real or personal property

which they own in common so that each may enjoy and possess his sole estate to the exclusion of and without interference from others. The purpose of partition is to separate, divide and assign a thing held in common among those to whom it belongs. (Avila vs. Sps. Barabat GR No. 141993, March 17, 2006).

General rule: Partition is demandable by any of the co–owners as a matter of right at any time.

Exceptions: (SCLUPA)a. When there is a stipulation against it;

but not to exceed 10 years.b. When the condition of indivision is

imposed by the donor or testator; but not to exceed 20 years.

c. When the legal nature of the community prevents partition.

d. When partition would render the thing unserviceable.

e. When partition is prohibited by lawf. When another co–owner has

possessed the property as exclusive owner for a period sufficient to acquire it by prescription.

II. The following questions are governed by the majority of interests:1. Management Acts of Management (Castan)a. Those that do not involve an alterationb. Are renewable from time to timec. Do not bind the community for a long time

in the futured. Do not give rise to a real right over the

thing owned in common (Reyes-Puno. p.73).

e. Expenses to improve or embellish are decided by the majority

Minority may appeal to the court against the majority’s decision if the same is seriously prejudicial.

2. Enjoyment3. Improvement or embellishment

III. Rights as to the ideal share of each co–owner:1. Each has full ownership of his part and of

his share of the fruits and benefits2. Right to substitute another person in its

enjoyment, EXCEPT when personal rights are involved

3. Right to alienate, dispose or encumber4. Right to renounce part of his interest to

reimburse necessary expenses incurred by another co–owner


5. Transactions entered into by each co–owner only affect his ideal share. Even if a co-owner sells the whole

property as his, the sale will affect only his own share but not those of the other co-owners who did not consent to the sale. This is because the sale or other disposition affects only his share and the transferee gets only what would correspond to his grantor in the partition of the thing owned in common. Since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owners is not null and void. Only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property (Bailon-Casilao vs. CA, GR No. L-78178, April 15, 1988).

A co-owner cannot acquire by prescription the share of the co-owners, absent any clear repudiation of the co-ownership. In order that the title may prescribe in favor of a co-owner, the following requisites must concur: (1) the co-owner has performed unequivocal acts of repudiation amounting to an ouster of the other co-owners; (2) such positive acts of repudiation have been made known to the other co-owners; and (3) the evidence thereof is clear and convincing (Robles vs. CA, GR No. 123509, March 14, 2000).

The act of executing the affidavit of self–adjudication did not constitute sufficient act of repudiation. In fact, there was bad faith of the co–heir in feigning sole ownership of the property to the exclusion of the other co–heirs. (Galvez vs. CA, GR No. 157954, March 24, 2006).

The Torrens title does not furnish a shield for fraud. Thus, where one registered the property in question in his name in fraud of his co–heirs, prescription can only be deemed to have commenced from the time the latter discovers the fraudulent act (Adille vs. CA, GR No. L-46484 January 29, 1988).

Under the law, anyone of the co–owners may bring an action in ejectment (Art. 487). This can be done without joining all other co–owners because the suit is presumed to have been filed for the benefit of his co–owners. But if the suit is for the benefit of the plaintiff alone who claims to be the sole owner and entitled to the possession of the litigated property the action should be dismissed and it will not prosper especially so that there is evidence of co–ownership of the property, and there is no showing that they waived their

rights (Baloloy vs. Hular GR No. 159723. September 9, 2004).

EXTINGUISHMENT OF CO–OWNERSHIP (CALSTEP)1. c onsolidation or merger in one co–owner2. a cquisitive prescription in favor of a third

person or a co–owner who repudiates the co–ownership

3. l oss or destruction of property co–owned4. s ale of property co–owned5. t ermination of period agreed upon by the co–

owners6. e xpropriation7. judicial or extra–judicial partition

CONDOMINIUM ACT (RA 4726)

Condominium - an interest in real property consisting of a separate interest in a unit in a residential, industrial or commercial building and an undivided interest in common, directly or indirectly, in the land on which it is located and in other common areas of the building. Any transfer or conveyance of a unit or an

apartment, office or store or other space therein, shall include transfer or conveyance of the undivided interest in the common areas or, in a proper case, the membership or shareholdings in the condominium corporation: Provided, however, that where the common areas in the condominium project are held by the owners of separate units as co–owners thereof, no condominium unit therein shall be conveyed or transferred to persons other than Filipino citizens or corporations at least 60% of the capital stock of which belong to Filipino citizens, except in cases of hereditary succession.

General rule: Common areas shall remain undivided, and there shall be no judicial partition thereof

Exceptions:1. When the project has not been rebuilt or

repaired substantially to its state prior to its damage or destruction 3 years after damage or destruction which rendered a material part thereof unfit for use;

2. When damage or destruction has rendered ½ or more of the units untenantable and that the condominium owners holding more than 30% interest in the common areas are opposed to restoration of the projects;

3. When the project has been in existence for more than 50 years, that it is obsolete and uneconomic, and the condominium owners holding in aggregate more than 50% interest

55


in the common areas are opposed to restoration, remodeling or modernizing;

4. When the project or a material part thereof has been condemned or expropriated and the project is no longer viable, or that the condominium owners holding in aggregate more than 70% interest in the common areas are opposed to the continuation of the condominium regime;

5. When conditions for partition by sale set forth in the declaration of restrictions duly registered have been met.

WATERS (Arts. 502-518)

Laws Governing Waters:1. Civil Code of the Philippines2. Special Law of Waters of August 3, 18663. The Irrigation Acts, Act 2152 and its

amendments4. Water Power Act No. 40625. Art. XIII of the Philippine Constitution

Classification1. Waters public per se (water is the principal);

the bed follows the character of the water 2. Waters public or private according to their bed

(water is accessory to bed)3. Waters public by special provision

MINERALS (Art. 519)

Laws Governing Minerals:1. Before 1902: R.D. sobre Mineria 18672. Between 1902-1906: The Philippine Bill of

1902 and Legislative Acts3. After the Advent of the Commonwealth: Art.

XIII of the Philippine Constitution and CA No. 137

4. Present: Mineral Resources Development Decree of 1974 (P.D. 463) and the Civil Code of the Philippines

Minerals – all inorganic substances found in nature, whether in solid, liquid, gaseous, or any intermediate state, with the exception of soil which supports the organic life, and of ordinary earth, gravel, sand, and stone which are used for building or construction purposes

TRADEMARK AND TRADE NAMES (Arts. 520-523)

Laws Governing Trademarks and Trade names:1. Intellectual Property Code (RA 8293)2. Civil Code of the Philippines

CONCEPT: 1. As an act – the holding of a thing or the

enjoyment of a right with the intention to possess in one’s own right

2. As a fact – when there is holding or enjoyment

3. As a right – the right of a person to holding or enjoyment to the exclusion of all others having better right than the possessora. jus possidendi - right to possession which

is incidental to or included in the right of ownership

b. jus possessionis – right of possession independent from the right of ownership

REQUISITES:1. occupancy, apprehension, or taking of a thing

or right (possession in fact);2. deliberate intention to possess (animus

possidendi) An insane or demented person CANNOT

acquire possession as they are incapable of understanding the import of their actions.

3. by virtue of ones own right – in his own name or in that of another.

DEGREES:1. possession without any title whatsoever -

mere holding without any right at all (ex. thief or squatter)

2. possession with juridical title - predicated on juridical relation existing between the possessor and the owner (ex. lessee, usufructuary, depositary, agent, pledgee and trustee)

3. possession with just title – the possession of an adverse claimant whose title is sufficient to transfer ownership but is defective (ex. when the seller is not the true owner or could not transmit his rights thereto to a possessor who acted in GF)

4. possession with a title in fee simple - derived from the right of dominion or possession of an owner; the highest degree of possession

CLASSES: 1. In one’s own name – where possessor

claims the thing for himself2. In the name of another – for whom the thing

is held by the possessor3. In the concept of owner – possessor of

thing or right, by his actions, is considered or

SOME SPECIAL PROPERTIES

POSSESSION


believed by others as the owner, regardless of good or bad faith of the possessor Possessor in the concept of an owner is

presumed with just title. (Art. 541)4. In the concept of holder – possessor holds

it merely to keep or enjoy it, the ownership pertaining to another person; possessor acknowledges in another a superior right which he believes to be ownership; cannot acquire ownership by prescription None of these holders may assert a claim

of ownership for himself over the thing but they may be considered as possessors in the concept of owner, or under claim of ownership, with respect to the right they respectively exercise over the thing.

5. In good faith – possessor is not aware that there is in his title or mode of acquisition a defect that invalidates itRequisites:a. Ostensible title or mode of acquisitionb. Vice or defect in the titlec. Possessor is ignorant of the vice or defect

and must have an honest belief that the thing belongs to him

Gross and inexcusable ignorance of the law may not be the basis of good faith, but possible excusable ignorance may be such basis (Kasilag vs. Roque GR No. 46623, December 7, 1939).

6. In bad faith – possessor is aware of the invalidating defect in his own title. Only personal knowledge of the flaw in

one’s title or mode of acquisition can make him a possessor in bad faith. It is not transmissible even to an heir.

Possession in good faith ceases from the moment defects in his title are made known to the possessor

EXTENT OF POSSESSION:1. Actual possession – occupancy in fact of

the whole or at least substantially the whole property

2. Constructive possession – occupancy of part, in the name of the whole, under such circumstances that the law extends the occupancy to the possession of the wholeDoctrine of constructive possession – possession in the eyes of the law does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession (Ramos vs. Director of Lands GR No. 13298, November 19, 1918).

PRESUMPTIONS IN FAVOR OF POSSESSOR:1. of good faith (Art. 527)2. of continuity of initial good faith (Art. 528)

3. of enjoyment in the same character in which possession was acquired until the contrary is proved (Art. 529)

4. of non–interruption in favor of the present possessor (Art. 554)

5. of continuous possession by the one who recovers possession of which he was wrongfully deprived (Art. 561)

6. of extension of possession of real property to all movables contained therein (Art. 542)

OBJECT OF POSSESSION: General rule: All things and rights susceptible of being appropriated (Art. 530)

Exceptions:1. Res communes2. Property of public dominion3. Discontinuous servitudes4. Non–apparent servitudesACQUISITION OF POSSESSION (Arts. 531-538)

Manner of acquiring possession:1. Material occupation of the thing or exercise of

a right 2. Subjection to our will 3. Proper acts and legal formalities established

for acquiring such right

Special Cases of Acquisition of Possession:1. Acquisition through another person.

Where possession is acquired, not by an agent or representative but by a stranger without agency, possession is not acquired until the act is ratified (Art. 532).

2. Acquisition by Succession Mortis Causaa. Time of Acquisition. If the inheritance is

accepted, the estate is transmitted without interruption from the death of the predecessor. But the heir who repudiates is deemed never to have acquired possession (Art. 533).

b. Effect of Bad Faith of the decedent. One who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of the decedent unless it is shown that he had knowledge of the defects affecting it; but the effects of possession in good faith shall not benefit him except from the death of the decedent (Art. 534).

CONFLICTS BETWEEN SEVERAL CLAIMANTS:General rule: Possession cannot be recognized in two different personalities

Exception: In case of co–possession when there is no conflict

57


Criteria in Case of Dispute: 1. present/actual possessor shall be preferred2. if there are two possessors, the one longer in

possession3. if the dates of possession are the same, the

one with a title4. if all the above are equal, the fact of

possession shall be judicially determined, and in the meantime, the thing shall be placed in judicial deposit Possession cannot be acquired through

force or violence. To all intents and purposes, a possessor, even if physically ousted, is still deemed the legal possessor (Caqueña vs. Bolante GR No. 137944, April 6, 2000).

A person who believes himself entitled to the possession of property may not take the law into his hands (Bishop of Cebu vs. Mangaron, G.R. No. 1748, June 1, 1906) or else he will be made to suffer the consequences of his lawlessness (Santiago vs. Cruz GR No. L-31919, March 24, 1930).

EFFECTS OF POSSESSION (Arts. 539-561)POSSESSOR IN

GOOD FAITHPOSSESSOR IN BAD

FAITHFruits gathered

to possessor to ownerCultivation Expenses of gathered fruits

not reimbursed to possessor

reimbursed to possessor

Fruits pending and chargesprorated according to time

to owner

Production expenses of pending fruitsindemnity pro-rata to possessor (owner’s option)in money, orby allowing full cultivation and gathering of all fruits

no indemnity

Necessary expensesreimbursed to possessor; retention

reimbursed to possessor; no retention

Useful expensesreimbursed to possessor (owner’s option)initial costplus value may remove if no reimbursement, and no damage is caused to the principal by the

no reimburse-ment

removalOrnamental expenses

reimbursement at owner’s option:removal if no injury, orcost without removal

owner’s option:removal, orvalue at time of recovery

Taxes and charges (i. on capital, ii. on fruits and iii. charges)

taxes and chargesi. charged to

ownerii. charged to

possessoriii. prorated

taxes and chargesi. charged to ownerii. charged to owneriii. to owner

Improvements no longer existingno reimbursement no reimburse-ment

Liability for accidental loss or deteriorationonly if acting with fraudulent intent or negligence, after summons

liable in every case

Improvements due to time or natureto owner or lawful possessor

to owner or lawful possessor

Necessary expenses – made for the preservation of the thing

Useful expenses – add value to property or increase the object’s productivity

Ornamental/luxury expenses – add value to the thing only for certain persons in view of their particular whims; neither essential for preservation nor useful to everybody in general

LOSS OF POSSESSION (Art. 555)

General Causes:1. By the will of the possessor

a. Abandonmentb. Transfer or conveyance

2. Against the will of the possessora. Eminent domainb. Acquisitive prescriptionc. Judicial decree in favor of one who has a

better rightd. Possession of another for more than one

year This refers to possession de facto

where the possessor loses the right to a summary action; but he may still bring action publiciana or reivindicatoria.

e. By reason of the objecti. destruction or total loss of the thingsii. withdrawal from commerce


Acts NOT Constituting Loss of Possession (Arts. 537–538)1. Acts executed by stealth and without

knowledge of the possessor2. Acts merely tolerated either by the possessor

or by his representative or holder in his name unless authorized or ratified

3. Violence4. Temporary ignorance of the whereabouts of

movable property

The possessor who recovers possession is considered as having had uninterrupted possession despite these acts of violence, stealth and tolerance; but he must recover possession by due process, and not otherwise (Arts. 561, 536, 539)

POSSESSION OF MOVABLES (Art. 559):

Theory of Irrevindicability - Possession in good faith of a movable is presumed ownership. It is equivalent to title. No further proof is necessary (Aznar vs. Yapdiangco, G.R. No. L-18536, March 31, 1965). The rule isnecessary for purposes of facilitating transactions on movable property which are usually done without special formalities (Sotto vs. Enage, 43 O.G. 5075 [1947]).

Requisites:1. possession is in good faith2. the owner has voluntarily parted with the

possession of the thing3. possessor is in the concept of owner

Exceptions to the Theory of Irrevindicability:1. where the owner or possessor lost a movable2. where the owner or possessor has been

unlawfully deprived of a movable

General rule: One who has lost or has been unlawfully deprived of a movable may recover it from whoever possesses it without reimbursement. The owner of the thing must prove: (1) ownership of the thing, and (2) loss or unlawful deprivation; or bad faith of the possessor.

Exceptions: 1. Where the owner acts negligently or

voluntarily parts with the thing owned, he cannot recover it from the possessor.

2. If the possessor of the movable acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor.

Public sale – one where there has been a public notice of the sale in which anyone is allowed to bid for the object he desires to buy.

POSSESSION OF ANIMALS (Art. 560):

Wild Animals – living in a state of nature independently of and without the aid and care of man; considered possessed only while they are under man’s control

Domesticated/ Tamed Animals - wild or savage by nature but have been subdued and became accustomed to live in a tamed condition; considered possessed if they habitually return to the premises of their possessor

Domestic/ Tame animals – live, born and reared under the control and care of man

Gives the right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides.

CHARACTERISTICS: 1. real right2. of temporary duration3. to derive all advantages from the thing due to

normal exploitation4. may be constituted on real or personal

property, consumable or non–consumable, tangible or intangible, the ownership of which is vested in another

5. transmissible

KINDS OF USUFRUCTUARY ACCORDING TO ORIGIN:1. Legal – created by law such as usufruct of

the parents over the property of their unemancipated children

2. Voluntary – created by will of the parties either by act inter vivos such as donation or by act mortis causa such as in a last will and testament

3. Mixed – acquired by prescription such as when believing himself to be the owner of the property of an absentee, gave in his will the usufruct of the property for the requisite prescriptive period to his wife, who possessed it in good faith as usufructuary, and naked ownership to his brother

RULES GOVERNING USUFRUCT:Governed primarily by the title creating it, or in the absence thereof, by Articles 566-612 of the Civil Code.

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USUFRUCT


NORMAL USUFRUCT AND ABNORMAL USUFRUCT DISTINGUISHED

NORMAL USUFRUCTABNORMAL USUFRUCT

that which involves non-consumable things which the usufructuary can enjoy without altering their form or substance, though they may deteriorate or diminish by time or use

that which involves things which would be useless to the usufructuary unless they are consumed or expended, such as money, grain, liquors, etc.

GENERAL RULE: Usufructuary is bound to preserve the form and substance of the thing in usufruct.

EXCEPTION: Abnormal usufruct whereby the law or the will of the parties may allow the modification of the substance of the thing.

USUFRUCT AND LEASE DISTINGUISHEDUSUFRUCT LEASE

Always a real right Generally a personal right

Person creating the usufruct should be the owner or his duly authorized agent

Lessor may not be the owner

May be created by law, by contract, by will of the testator, or by prescription

Generally created by contract

As a rule, usufruct covers all the fruits and all the uses and benefits of the entire property.

Lease generally refers to uses only

Involves a more or less passive owner who allows the usufructuary to enjoy the object given in usufruct

Lease involves a more active owner or lessor who makes the lessee to enjoy

Pays for ordinary repairs and taxes on the fruits

Lessee is not generally under obligation to undertake repairs or pay taxes

SPECIAL USUFRUCTS:1. of pension or income (Art. 570)2. of property owned in common (Art. 582)3. of cattle (livestock) (Art. 591)4. on vineyards and woodlands (Art. 575–576)5. on a right of action (Art. 578)6. on mortgaged property (Art. 600)7. over the entire patrimony (Art. 598)

8. over things which gradually deteriorate (Art. 573)

9. of consumable property (Art. 574)

RIGHTS OF THE USUFRUCTUARY 1. As to the thing and its fruits

a. To receive and benefit from the fruitsb. To enjoy any increase through

accessions and servitudesc. To the half of the hidden treasure he

accidentally findsd. To lease the thing, generally, for the

same or shorter period as the usufruct. e. To improve the thing without altering its

form and substancef. Right to set–off the improvements he may

have made on the property against any damage to the same

g. To retain the thing until he is reimbursed for advances for extraordinary expenses and taxes on the capital

h. To collect reimbursements from the owner for indispensable extraordinary repairs, taxes on the capital he advanced, and damages caused to him.

i. To remove improvements made by him if the same will not injure the property

2. As to the usufruct itselfa. To mortgage the right of usufruct except

parental usufructb. To alienate the usufruct

3. At the expiration of the usufruct:a. to collect reimbursement from the owner:

i. for indispensable extraordinary repairs made by the usufructuary

ii. for taxes on the capital advanced by the usufructuary

iii. for damages caused by the usufructuary

b. to retain the thing until reimbursement is made

c. to remove improvements made by him, but without injuring the property

In a usufruct, only the jus utendi and jus fruendi over the property are transferred to the usufructuary. The owner of the property maintains the jus disponendi or the power to alienate, encumber, transform, and even destroy the same (Hemedes vs. CA, GR No. 107132, October 8, 1999).

Under the Massachusetts Rule, a stock dividend is considered part of the capital and belongs to the remainderman; while under the Pennsylvania Rule, all earnings of a corporation, when declared as dividends in whatever form, made during the lifetime of the usufructuary, belong to the latter. The


Pennsylvania Rule is more in accord with our laws than the Massachusetts Rule (Bachrach vs. Seifert and Elianoff, GR No. L-2659, October 12, 1950).

Corollary to the right to all the rents, to choose the tenant, and to fix the amount of the rents, a usufructuary of the rents has the right to choose himself as the tenant, provided that the obligations he has assumed towards the owner of the property are fulfilled (Fabie vs. Gutierrez David, GR No. L-123, December 12, 1945).

OBLIGATIONS OF THE USUFRUCTUARY1. Before exercising the usufruct:

a. To make an inventory of the propertyb. To give a bond, EXCEPT

i. when no prejudice would resultii. when the usufruct is reserved by the

donor or parentsiii. in cases of caucion juratoria where

the usufructuary, being unable to file the required bond or security, files a verified petition in the proper court asking for the delivery of the house and furniture necessary for himself and his family without any bond or security.1) takes an oath to take care of the

things and restore them2) property cannot be alienated or

leased because this would mean that the usufructuary does not need it

Effects of failure to post bond:a. owner shall have the following options:

i. receivership of realty, sale of movables, deposit of securities, or investment of money; OR

ii. retention of the property as administrator

b. the net product shall be delivered to the usufructuary

c. usufructuary cannot collect credits due or make investments of the capital without the consent of the owner or of the court until the bond is given

2. During the usufruct:a. To take care of the propertyb. To replace with the young thereof animals

that die or are lost in certain cases when the usufruct is constituted on flock or herd of livestock

c. To make ordinary repairsd. To notify the owner of urgent extra–

ordinary repairs

e. To permit works and improvements by the naked owner not prejudicial to the usufruct

f. To pay annual taxes and charges on the fruits

g. To pay interest on taxes on capital paid by the naked owner

h. To pay debts when the usufruct is constituted on the whole patrimony

i. To secure the naked owner’s or court’s approval to collect credits in certain cases

j. To notify the owner of any prejudicial act committed by third persons

k. To pay for court expenses and costs regarding usufruct

3. At the termination of the usufruct:a. To return the thing in usufruct to the

owner unless there is a right of retentionb. To pay legal interest on the amount spent

by the owner for extraordinary repairs or taxes on the capital

c. To indemnify the owner for any losses due to his negligence or of his transferees

RIGHTS OF THE OWNER DURING THE USUFRUCT:1. He retains title2. He may alienate the property, but he may not:

a. alter the form or substance of the thingb. do anything prejudicial to the usufructuary

3. He may construct buildings, make improvements and plantings, provided:a. the value of the usufruct is not impairedb. the rights of the usufructuary are not

prejudicedOBLIGATIONS OF THE OWNER AT THE EXPIRATION OF THE USUFRUCT:1. to make reimbursement for advances of the

usufructuary2. to cancel the bond, upon discharge of the

usufructuary’s obligations3. to respect leases of rural lands by the

usufructuary for the balance of the agricultural year

EXTINGUISHMENT OF USUFRUCT (PT2DERM)1. P rescription2. T ermination of right of the person constituting

the usufruct3. T otal loss of the thing4. D eath of the usufructuary, unless contrary

intention appears5. E xpiration of the period or fulfillment of the

resolutory condition6. R enunciation of the usufructuary7. M erger of the usufruct and ownership in the

same person

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EASEMENT OR SERVITUDE


Encumbrance imposed upon an immovable for the benefit of a community or one or more persons or for the benefit of another immovable belonging to a different owner.

EASEMENT AND SERVITUDE DISTINGUISHED

EASEMENT SERVITUDE

Origin

English law Roman law

Recipient of Benefit

always real may be real or personal (broader)

CHARACTERISTICS:1. It is a real right but will affect third persons

only when duly registered.2. It is enjoyed over another immovable, never

on one’s own property3. It involves two neighboring estates (in case of

real easements).4. It is inseparable from the estate to which it is

attached, and, therefore, cannot be alienated independently of the estate.

5. It is indivisible for it is not affected by the division of the estate between two or more persons.

6. It is a right limited by the needs of the dominant owner or estate, without possession.

7. It cannot consist in the doing of an act unless the act is accessory in relation to a real easement.

8. It is a limitation on the servient owner’s rights of ownership for the benefit of the dominant owner; and, therefore, it is not presumed.

CLASSIFICATION:1. As to recipient of benefit:

a. Real/Predial – when the easement is in favor of another immovable

b. Personal – when it is in favor of a community or of one or more personsi. Public – if it is vested in the public at

large or in some class of indeterminate individuals

ii. Private – if it is vested in a determinate individual or certain persons

2. As to its source:a. Voluntary – when the easement is

established by the will or agreement of the parties or by a testator

b. Legal – when it is imposed by law either for public use or in the interest of private persons

c. Mixed – when it is created partly by will or agreement and partly by law

3. As to its exercise:a. Continuous Easements – those the use

of which is, or may be, incessant without the intervention of any act of man

b. Discontinuous Easements – those which are used at intervals and depend upon the acts of man

4. As to the indication of their existence:a. Apparent Easements – those which are

made known and are continually kept in view by external signs that reveal the use and enjoyment of the same

b. Non–apparent Easements – those which show no external indication of their existence

5. As to duty of servient ownera. Positive – the servient owner must allow

something to be done in his property or do it himself; also called “servitudes of intrusion and or/service”

b. Negative – the servient owner must refrain from doing something which he could lawfully do if the easement did not exist

EASEMENT AND LEASE DISTINGUISHEDEASEMENT LEASE

Real right, whether registered or not

Real right only when it is registered, or when its subject matter is real property and the duration exceeds one year

Imposed only on real property

May involve either real or personal property

There is a limited right to the use of real property of another but without the right of possession

Limited right to both the possession and use of another’s property

EASEMENT AND USUFRUCT DISTINGUISHED

EASEMENT USUFRUCTImposed only on real property

May involve either real or personal property

Limited to particular or specific use of the servient estate

Includes all the uses and the fruits of the property

A non–possessory right over an immovable

Involves a right of possession in an immovable or movable

Not extinguished by the death of the dominant owner

Extinguished by the death of the usufructuary


MODES OF ACQUISITION: (PDFAT)1. by prescription of 10 years (continuous and

apparent easements)a. Positive servitude - counted from the

day their exercise commences.b. Negative servitude - counted from the

formal prohibition to the servient owner to do any act opposed to the servitude (Art. 621). There must be a notarized document.

2. by deed of recognition3. by final judgment4. by apparent sign established by the owner of

two adjoining estates, unless:a. there are contrary stipulations orb. the sign is effaced

5. by title

DOMINANT OWNER

Rights:1. To exercise all the rights necessary for the

use of the easement2. To make on the servient estate all the works

necessary for the use and preservation of the servitude

3. To renounce the easement if he desires to exempt himself from contribution to necessary expenses

4. To ask for mandatory injunction to prevent impairment of his use of the easement

Obligations:1. Cannot render the easement or render it

more burdensome2. Notify the servient owner of works necessary

for the use and preservation of the servitude3. Choose the most convenient time and

manner in making the necessary works as to cause the least inconvenience to the servient owner

4. Contribute to the necessary expenses if there are several dominant estates

SERVIENT OWNER

Rights: 1. To retain ownership and possession of the

servient estate2. To make use of the easement, unless there is

agreement to the contrary3. To change the place or manner of the

easement, provided it be equally convenient

Obligations:1. Cannot impair the use of the easement2. Contribute to the necessary expenses in case

he uses the easement, unless there is an agreement to the contrary

EXTINGUISHMENT OF EASEMENTS (REMAIN BREW)1. R edemption agreed upon2. E xpiration of the term or fulfillment of the

resolutory condition3. M erger of ownership of the dominant and

servient estate4. A nnulment of the title to the servitude5. Permanent impossibility to use the easement6. N on–user for 10 years

a. discontinuous: counted from the day they ceased to be used

b. continuous: counted from the day an act adverse to the exercise takes place

7. B ad condition – when either or both estates fall into such a condition that the easement could not be used

8. R esolution of the right to create the servitude, (i.e. in case of pacto de retro, when the property is redeemed)

9. E xpropriation of the servient estate10. W aiver by the dominant owner

LEGAL EASEMENTS

Kinds of Legal Easements:1. Public legal easements – those for public or

communal use, governed primarily by special laws and by the Civil Code

2. Private legal easements – those for the interest of private persons or for private use; governing law:a. primarily by the agreement of the

interested parties; b. in the absence thereof, by the provisions

of general or local laws and ordinances; and

c. in default of (a) and (b), by the Civil Code

I. Easement Relating To Waters (Art. 637): Lower estates must receive waters which are naturally and without intervention of man descend from higher estates including earth or stones carried with them (Art. 637)

Limitations:1. Dominant owner must not increase the

burden but he may erect works to avoid erosion.

2. The servient owner must not impede the descent of the water (but may regulate it).

II. Easement On Riparian Property (Art. 638)

III. Easement On Dam Or Weir (Art. 639)

IV. Easement For Watering Cattle (Art. 640): This is a combined easement for drawing of water and right of way

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Requisites:a. must be imposed for reasons of public

useb. must be in favor of a town or villagec. indemnity must be paid

V. Easement of Aqueduct (Arts. 643–646)

From a forced easement, by virtue of which the owner of an estate who desires to avail himself of water for the use of said estate may make such waters pass through the intermediate estate with the obligation of indemnifying the owner of the same and also the owner of the estate to which the water may filter or flow

Requisites:1. dominant owner must prove that he has

the capacity to dispose of the water2. that the water is sufficient for the intended

use3. that the course is most convenient, and

least onerous to the 3rd person4. payment of indemnity

VI. Easement For The Construction of A Stop Lock or Sluice Gate (Art. 647)

VII. Easement of Right of Way (Arts. 649–657): The right granted to the owner of an estate which is surrounded by other estates belonging to other persons and without an adequate outlet to a public highway to demand that he be allowed a passageway throughout such neighboring estates after payment of proper indemnity.

Requisites:1. Claimant must be the owner of the

enclosed immovable or one with real right;

2. The dominant estate is surrounded by other immovables and there must be no adequate outlet to a public highway;

3. Right of way must be absolutely necessary;

4. Isolation must not be due to the claimant’s own act;

5. Easement must be established at the point least prejudicial to the servient estate; and insofar as consistent with this rule, where the distance from the dominant estate to the public highway may be the shortest; and

6. Payment of proper indemnity.

The burden of proving the existence of the pre-requisites to validly claim a

compulsory right of way lies on the owner of the dominant estate (Costabella Corp. vs. CA, GR No. 80511, Jan. 25, 1991).

Where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be used, even if it will not be the shortest. The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance (Quimen vs. CA, GR No. 112331, May 29, 1996).

It is the needs of the dominant property which ultimately determine the width of the passage, and these needs may vary from time to time (Encarnacion vs. CA, GR No. 76322 March 11, 1991).

The right of way for cattle should not be more than 10 meters wide unless a greater width was a vested right under laws prior to the Civil Code of 1889 (Art. 657).

Special Cause of Extinction: 1. the opening of a public road, or2. joining the dominant tenement to another

with exit on a public road

The extinction is NOT automatic. There must be a demand for extinction coupled with tender of indemnity by the servient owner.

Easement of right of way cannot be acquired by prescription because it is discontinuous/intermittent (Ronquillo, et al. vs. Roco GR No. L-10619, February 28, 1958).

VIII.Easement of Party Wall (Arts. 658–666) Party Wall - common wall which separates 2 estates built by common agreement at the dividing line such that it occupies a portion of both estates on equal parts

Party Wall and Co–ownership DistinguishedPARTY WALL CO–OWNERSHIP

Shares of parties cannot be physically segregated but they can be physically identified

Shares of the co–owners can be divided and separated physically but before such division, a co–owner cannot point to any definite portion of the property as belonging to him

No limitation as to use of the party wall for exclusive benefit

None of the co–owners may use the community property


of a party for his exclusive benefit

Owner may free himself from contributing to the cost of repairs and construction of a party wall by renouncing all his rights thereto

Partial renunciation is allowed

Presumptions of Existence (juris tantum):1. in adjoining walls of buildings, up to

common elevation2. in dividing walls of gardens and yards

(urban)3. in dividing fences, walls and live hedges

of rural tenements4. in ditches or drains between tenements

Rebuttal of Presumption:1. title2. by contrary proof:3. by signs contrary to the existence of the

servitude (Arts. 660 & 661)

If the signs are contradictory, they cancel each other

Rights of Part Owners:1. to make use of the wall in proportion to

their respective interests, resting buildings on it or inserting beams up to one–half of the wall’s thickness

2. to increase the height of the walla. at his expenseb. upon payment of proper indemnityc. to acquire half interest in any

increase of thickness or height, paying a proportionate share in the cost of the work and of the land covered by the increase

Obligations of Each Part–Owner:1. to contribute proportionately to the repair

and maintenance unless he renounces his part–ownership

2. if one part owner raises the height of the wall, he must:a. bear the cost of maintenance of the

additionsb. bear the increased expenses of

preservationc. bear the cost of constructiond. give additional land, if necessary, to

thicken the wall

IX. Easement of Light and View (Arts. 667–673)

1. Easement of Light (jus luminum) – right to admit light from the neighboring estate by virtue of the opening of a window or the making of certain openings.

Requisites: a. opening must not be greater than 30

centimeters square, made on the ceiling or on the wall; and

b. there must be an iron grating

2. Easement of view (jus prospectus) – the right to make openings or windows, to enjoy the view through the estate of another and the power to prevent all constructions or work which would obstruct such view or make the same difficult. It necessarily includes easement of light.

Restrictions on openings in one’s own wall when contiguous (less than 2m) to another’s tenement:1. it cannot exceed 30cm each side2. openings must be at the height of the

joists, near the ceiling (Choco vs. Santamaria, GR No. 6076, December 29, 1911).

3. the abutting owner may: a. close the openings if the wall

becomes a party wallb. block the light by building or erecting

his own wall unless a servitude is acquired by title or prescription

c. ask for the reduction of the opening to the proper size

Restrictions as to views:1. Direct views: the distance of 2m between

the wall and the boundary must be observed

2. Oblique views: (walls perpendicular or at an angle to the boundary line) must not be less than 60cm from the boundary line to the nearest edge of the window

Any stipulation permitting lesser distances is void (Art. 673).

Modes of Acquisition1. by title2. by prescription

a. positive – counted from the time of the opening of the window, if it is through a party wall

b. negative – counted from the formal prohibition on the servient owner.

Mere non–observance of distances prescribed by Art. 670 without formal

65


prohibition, does not give rise to prescription.

X. Drainage of Buildings (Arts. 674–676)1. Easement of drainage of buildings –

the right to divert or empty the rain waters from one’s own roof or shed to the neighbor’s estate either drop by drop or through conduits

2. Easement to receive falling rain waters – deals not with legal easement but with a voluntary easement to receive rain water falling from the roof of an adjoining building

3. Easement giving outlet to rain water where house surrounded by other houses Requisites:a. there must be no adequate outlet to

the rain water because the yard or court of a house is surrounded by other houses

b. the outlet to the water must be at the point where egress is easiest and establishing a conduit for drainage

c. there must be payment of proper indemnity

XI. Intermediate Distances And Works For Certain Constructions And Plantings (Arts. 677–681)1. Constructions: wells, sewers, etc.

a. distance is fixed by ordinances or custom must be observed

b. protective structures prescribed by ordinances or custom must be erected; if none, precautions must be taken to avoid damage to neighboring estates

c. violation causes responsibility for damages caused

2. Plantings:a. distances as prescribed by

ordinances or customs must be observed. If none:i. for large trees: at least 2m from

boundaryii. for shrubs: at least 50cm from the

center of the treeb. intrusions;

i. of branches: the owner of the tree may be compelled to cut intruding branches at the boundary

ii. of roots: the owner of the invaded tenement may cut them himself at the boundary

iii. fruits falling naturally belong to the owner of the land

XII. Easement Against Nuisance (Arts. 682-683)

XIII.Lateral and Subjacent Support (Arts. 684-687)

Lateral support – when the supported and supporting lands are divided by a vertical plane

Subjacent support – when the supported land is above and the supporting land is beneath

There exists a doubt as to whether easements against nuisance and lateral and subjacent support may be categorized as legal easements (Reyes- Puno. pp.188–189).

The duty of an adjacent owner making excavations upon his land not to deprive any adjacent land of sufficient lateral or subjacent support is an absolute one. It does not depend upon the degree of care and precaution made by the proprietor in making the excavation or building in his land (De Jesus, et al vs. Howmart Corp. et al, GR No. 44191-R, August 28, 1974).

VOLUNTARY EASEMENTS (Arts. 688-693)Constituted by the will of the parties or of a testator.

The owner possessing capacity to encumber property may constitute voluntary servitude. If there are various owners, ALL must consent; but consent once given is not revocable.

Rules governing voluntary easements:1. if created by title, such as contract or will,

then by such title2. if created by prescription, by the form and

manner of possession of the easement3. in default of any of the above, by the

provisions of the Civil Code on easements

Voluntary easements are established in favor of:1. predial servitudes:

a. for the owner of the dominant estateb. for any other person having any juridical

relation with the dominant estate, if the owner ratifies it

2. personal servitudes: for anyone capacitated to accept

Any act, omission, establishment, business or condition of property or anything else which: (ISAHO)

NUISANCE


1. I njures/endangers the health or safety of others;

2. S hocks, defies or disregards decency or morality;

3. A nnoys or offends the senses;4. H inders or impairs the use of property; or5. O bstructs or interferes with the free passage

to any public highway or street, or body of water.

CLASSES:1. Per se – nuisance at all times and under all

circumstances regardless of location and surrounding.

2. Per accidens – nuisance by reason of circumstances, location, or surroundings.

3. Public – affects the community or a considerable number of persons.

4. Private – affects only a person or a small number of persons.

5. Mixed – nuisance may be both public and private in character

DOCTRINE OF ATTRACTIVE NUISANCEOne who maintains on his premises dangerous instrumentalities of a character likely to attract children in play and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises.

A swimming pool or water tank is not an attractive nuisance (Hidalgo Enterprises vs. Balandan GR No. L-3422, June 13, 1952).

REMEDIES AGAINST PUBLIC NUISANCE: (PCE)1. P rosecution under the RPC or local ordinance2. C ivil Action3. E xtrajudicial Abatement

REMEDIES AGAINST PRIVATE NUISANCE: (CE)1. C ivil Action2. E xtrajudicial Abatement

Note: The action to abate a public/private nuisance is NOT extinguished by prescription.

EXTRAJUDICIAL ABATEMENTRequisites:1. nuisance must be specially injurious to the

person affected;2. no breach of peace or unnecessary injury

must be committed;3. prior demand;4. prior demand has been rejected;

5. approval by district health officer and assistance of local police; and

6. value of destruction does not exceed P3,000.

REGISTRATION – any entry made in a book or public registry of deeds

Systems of registration:1. Former registration systems

a. Spanish Mortgage Law of 1893b. Torrens System established by the Land

Registration Act (Act No. 496)c. Sec. 194 - Revised Administrative Code

2. Present registration system - Property Registration Decree (PD No. 1529)

Effects of registration:1. operates as constructive notice2. does not validate or cure defective instrument3. cannot bind property where it is legally

ineffective4. does not vest title5. rule of first in time, first in right

MODE – the actual process of acquisition or transfer of ownership over a thing in question. This is the proximate cause of the acquisition.

TITLE - the juridical justification for the acquisition or a transfer of ownership or other real right. This is the remote cause of the acquisition (Acap vs. CA, GR No. 118114, December 7, 1995)

Different Modes and Titles of Acquiring Ownership

MODES OF ACQUIRING OWNERSHIP

TITLES OF ACQUIRING OWNERSHIP

Original ModesOccupation Condition of being

without known ownerWork which includes Intellectual creation

Creation, discovery or invention

Derivative ModesLaw Existence of required

conditionsTradition Contract of the partiesDonation Contract of the partiesPrescription Possession in the

concept of ownerSuccession Death

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REGISTRY OF PROPERTY

THEORY OF MODE AND TITLE


TRADITION/ DELIVERY - a mode of acquiring ownership as a consequence of certain contracts, by virtue of which, the object is placed in the control and possession of the transferee, actually or constructively.

Requisites:1. Right transmitted should have previously

existed in the patrimony of the grantor;2. Transmission should be by just title;3. Grantor and grantee should have intention

and capacity to transmit and acquire; and4. Transmission should be manifested by some

act which should be physical, symbolical or legal.

Kinds:1. Real Tradition – actual delivery2. Constructive Tradition

a. traditio symbolica – parties make use of a token or symbol to represent the thing delivered

b. traditio longa manu – by mere consent of the parties if the thing sold cannot be transferred to the possession of the vendee at the time of the sale

c. traditio brevi manu – when the vendee already has possession of the thing sold by virtue of another title

d. traditio constitutum possessorium – when the vendor continues in possession of the thing sold not as owner but in some other capacity

3. Quasi–tradition – exercise of the right of the grantee with the consent of the grantor

4. Tradicion por ministerio de la ley – delivery by operation of law

5. Tradition by public instrument – the execution is equivalent to the delivery of the thing, object of the contract

A mode of acquiring ownership by the seizure of corporeal things that have no owner, with the intention of acquiring them, and according to the rules laid down by law

REQUISITES:1. There must be seizure of a thing;2. The thing seized must be corporeal personal

property;3. The thing must be susceptible of

appropriation by nature;4. The thing must be without an owner;5. There must be an intention to appropriate;

and6. Requisites laid down by law must be complied

with.

SPECIFIC INSTANCES:1. hunting and fishing2. finding of movables which do not have an

owner3. finding of abandoned movables 4. finding of hidden treasure5. catching of swarm of bees that has escaped

from its owner, under certain conditions6. catching of domesticated animals that have

escaped from their owners, under certain conditions

7. catching of pigeons without fraud or artifice8. transfer of fish to another breeding place

without fraud or artifice

A thing that has been lost or taken by force is not ipso facto converted to res nullius for it to belong to the person who takes possession of the same without the necessity of proving the mode of his acquisition and it may thus be recovered by the original owner (See Art. 559). Such thing cannot be acquired by prescription even if extraordinary.

Land cannot be the object of occupation because when land is without an owner, it pertains to the State (Report of Code Commission). The State need not acquire abandoned lands by occupation because once the requisites of abandonment had been fulfilled; reversion operates automatically (Pineda, 497).

An act of liberality whereby a person disposes gratuitously of a thing or right in favor of another who accepts it (Art. 725)

REQUISITES: (CIDA)1. donor must have capacity to make the

donation2. he must have donative intent (animus

donandi)3. there must be delivery4. donee must accept or consent to the donation

ESSENTIAL FEATURES/ELEMENTS OF A TRUE DONATION:1. Alienation of property by the donor during his

lifetime, which is accepted2. Irrevocability by the donor3. Animus Donandi4. Consequent impoverishment of the donor

CLASSIFICATION:1. As to effectivity:

a. inter vivosb. mortis causa

OCCUPATION

DONATION


c. propter nuptias2. As to perfection/ extinguishment:

a. pureb. with a conditionc. with a term

3. As to consideration:a. simple – gratuitousb. remuneratory or compensatory – made

on account of donee’s meritsc. modal – imposes upon the donee a

burden which is less than the value of the thing donated

d. onerous – imposes upon the done a reciprocal obligation or, to be more precise, this is the kind of donation made for a valuable consideration, the cost of which is equal to or more than the thing donated (Republic vs. Silim, GR No. 149487, April 2, 2001)

A stipulation in the donation that it was made for and in consideration of the “love and affection which the Donee inspires in the Donor, and as an act of liberality and generosity” is sufficient cause for a donation (Quilala vs. Alcantara, GR No. 132681, December 3, 2001).

DONATION INTER VIVOS AND DONATION MORTIS CAUSA DISTINGUISHED

DONATION INTER VIVOS

DONATION MORTIS CAUSA

Takes effect independently of the donor’s death

Takes effect upon the death of the donor

Made out of donor’s pure generosity

Made in contemplation of his death without the intention to lose the thing or its free disposal in case of survival

Title conveyed to the donee before the donor’s death

Title conveyed upon donor’s death

Valid if donor survives done

Void if donor survives done

Donation Inter Vivos Donation Mortis CausaTakes effect independently of the donor’s death

Takes effect upon the death of the donor

Made out of donor’s pure generosity

Made in contemplation of his death without the intention to lose the thing or its free disposal in case of survival

Title conveyed to the Title conveyed upon

donee before the donor’s death

donor’s death

Valid if donor survives done

Void if donor survives done

Generally irrevocable during donor’s lifetime except for grounds provided by law (Arts. 760, 765)

Always revocable at anytime and for any reason before the donor’s death

Must comply with the formalities required by Arts. 748 and 749 of the Code

Must comply with the formalities required by law for the execution of wills

Must be accepted by the donee during his lifetime

Can only be accepted after the donor’s death

Subject to donor’s tax Subject to estate tax

The title given to a Deed of Donation is NOT the determinative factor which makes the donation “inter vivos” or “mortis causa.” Whether a donation is inter vivos or mortis causa depends upon the nature of the disposition made (Reyes vs. Mosqueda, GR No. 45262, July 23, 1990).

Art. 729 speaks of donations in praesenti which take effect during the lifetime of the donor but the property shall be delivered only after the donor’s death. Such donations are inter vivos although the subject matter is not delivered at once, or the delivery is to be made post mortem, which is a simple matter of form and does not change the nature of the act (Vita vs. Montanano GR No. L-50553, February 19, 1991).

DONATIONS PROHIBITED BY LAW:1. Made by persons guilty of adultery or

concubinage at the time of donation;2. Made between persons found guilty of the

same criminal offense in consideration thereof;

3. Made to a public officer or his/her spouse, descendants or ascendants in consideration of his/her office;

4. Made to the priest who heard the confession of the donor during the latter’s last illness, or the minister of the gospel who extended spiritual aid to him during the same period;

5. Made to relatives of such priest, etc. within the 4th degree, or to the church to which such priest belongs;

6. Made by a ward to the guardian before the approval of accounts;

7. Made to an attesting witness to the execution of donation, if there is any, or to the spouse, parents, or children, or anyone claiming under them.

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8. Made to a physician, surgeon, nurse, health officer or druggist who took care of the donor during his/her last illness;

9. Made by individuals, associations or corporations not permitted by law to make donations; and

10. Made by spouses to each other during the marriage or to persons of whom the other spouse is a presumptive heir.

FORMS OF DONATIONS:1. Donations of movable property:

a. If donation is oral, simultaneous delivery of property donated is required if the value is P5,000.00 or less. Acceptance may be oral or written.

b. If donation is in writing, simultaneous delivery of property donated is not required regardless of value. Acceptance may be oral or written.

c. If the value exceeds P5,000.00, the donation and acceptance must be in writing. Simultaneous delivery of property donated is not required.

2. Donation of immovable property:a. must be in a public instrument specifying

the property donated and the burdens assumed by donee, regardless of value

b. acceptance must be either:i. in the same instrumentii. in another public instrument, notified

to the donor in authentic form, and noted in both deeds

Expression of gratitude to the donor without express acceptance was held a sufficient acceptance (Cuevas vs. Cuevas GR No. L-8327, December 14, 1955).

LIMITATIONS ON DONATION OF PROPERTY:1. Future property cannot be donated.2. Present property that can be donated:

a. if the donor has forced heirs: he cannot give or receive by donation more than what he can give or receive by will; and

b. if the donor has no forced heirs: donation may include all present property provided he reserves in full ownership or in usufruct:i. the amount necessary to support him

and those relatives entitled to support from him

ii. property sufficient to pay the donor’s debt contracted prior to the donation.

3. Donation should not prejudice creditors.4. Donee must reserve sufficient means for his

support and for his relatives which are entitled to be supported by him.

EFFECTS OF DONATION:

1. donee may demand the delivery of the thing donated

2. donee is subrogated to the rights of the donor in the property

3. in donations propter nuptias, the donor must release the property from encumbrances, except servitudes

4. donor’s warranty exists ifa. expressedb. donation is propter nuptiasc. donation is onerousd. donor is in bad faith

5. when the donation is made to several donees jointly, they are entitled to equal portions, without accretion, unless the contrary is stipulated

PAYMENT OF THE DONOR’S DEBT BY THE DONEE:1. If there is express stipulation: the donee is

to pay only debts contracted before the donation, if not otherwise specified; but the donee answers only up to the value of the property donated, if no stipulation is made to the contrary

2. If there is no stipulation: the donee is answerable for the debts of the donor only in case of fraud against creditors.

GROUNDS FOR REVOCATION OF DONATION:1. birth, appearance, or adoption of a child2. non-fulfillment of a resolutory condition3. ingratitude of the donee

Acts of Ingratitude (Art. 765)a. If the donee should commit some offense

against the person, the honor or property of the donor, or of his wife or children under his parental authority;

b. He imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himself, his wife or children under his authority; and

c. He unduly refuses him support when the donee is legally or morally bound to give support to the donor.

GROUNDS FOR REDUCTION OF DONATION:1. birth, appearance, or adoption of a child2. failure of the donor to reserve sufficient

means for support of himself or dependent relatives

3. failure of the donor to reserve sufficient property to pay off his existing debts

4. inofficiousness, that is, the donation exceeds that which the donor can give by will


If a Deed of Donation expressly provides for automatic reversion of the property donated in case of violation of a condition therein, a judicial declaration revoking the same is not necessary. The rules on contracts and the general rules on prescription (10 years to recover in case of written contracts) should apply and not the 4 year prescriptive period under Art. 764 of the Civil Code (Roman Catholic Archbishop of Manila vs. CA, GR No. 77425, June 19, 1991).

CONCEPT: it is a means of acquiring ownership and other real rights or losing rights or actions to enforce such rights through the lapse of time.

KINDS:1. Acquisitive prescription – one acquires

ownership and other real rights through the lapse of time in the manner and under the conditions laid down by law.a. Ordinary acquisitive prescription: requires

possession of things in good faith and with just title for the time fixed by law

b. Extraordinary acquisitive prescription: acquisition of ownership and other real rights without need of title or of good faith or any other condition

Requisites:a. capacity to acquire by prescriptionb. a thing capable of acquisition by

prescriptionc. possession of thing under certain

conditionsd. lapse of time provided by law

2. Extinctive Prescription – rights and actions are lost through the lapse of time in the manner and under the conditions laid down by law; also called limitation of actions

Acquisitive and Extinctive Prescription Distinguished

ACQUISITIVE PRESCRIPTION

EXTINCTIVEPRESCRIPTION

relationship between the occupant and the land in terms of possession is capable of producing legal consequences; it is the possessor who is the actor

one does not look to the act of the possessor but to the neglect of the owner

requires possession by a claimant who is not the owner

requires inaction of the owner or neglect of one with a right to

bring his actionapplicable to ownership and other real rights

applies to all kinds of rights, whether real or personal

vests ownership or other real rights in the occupant

produces the extinction of rights or bars a right of action

results in the acquisition of ownership or other real rights in a person as well as the loss of said ownership or real rights in another

results in the loss of a real or personal right, or bars the cause of action to enforce said right

can be proven under the general issue without its being affirmatively pleaded

should be affirmatively pleaded and proved to bar the action or claim of the adverse party

LACHES – failure or neglect for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, one could or should have done earlier.

PERSONS AGAINST WHOM PRESCRIPTION RUNS:1. Minors and other incapacitated persons who

have parents, guardians or other legal representatives

2. Absentees who have administrators 3. Persons living abroad who have managers or

administrators4. Juridical persons, except the state and its

subdivisionPERSONS AGAINST WHOM PRESCRIPTION DOES NOT RUN:1. Between husband and wife, even though

there be separation of property agreed upon in the marriage settlements or by judicial decree.

2. Between parents and children, during the minority or insanity of the latter

3. Between guardian and ward during the continuance of the guardianship

PERIOD OF PRESCRIPTIONMOVABLES IMMOVABLES

Good Faith

4 years 10 years

Bad Faith

8 years 30 years

Rules on Computation of Period:

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PRESCRIPTION


1. The present possessor may complete the period necessary for prescription by tacking his possession to that of his grantor or predecessor.

2. It is presumed that the present possessor who was also the possessor at a previous time, has continued to be in possession during the intervening time, unless there is proof to the contrary.

3. The first day shall be excluded and the last day included.

Documents

Property Memaid