Property Reviewer (Rabuya, Paras) (2022)
Property Reviewer (Rabuya, Paras) (2022)
Property Reviewer (Rabuya, Paras) (2022)
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
established.” (Mindanao Bus Co. v. City The machineries are The machineries,
Assessor and Treasurer) considered personal although covered by a
property even though chattel mortgage, are
If the installation of the machinery and they are principal and considered real property
equipment in question in the central of the essential elements of thesince they are
Mabalacat Sugar Co., Inc., in lieu of the other industry immobilized
of less capacity existing therein, for its sugar The action is concerning The action/issue is
industry, converted them into real property by a writ of replevin concerning the absence
reason of their purpose, it cannot be said that (private) of the publication of the
their incorporation therewith was not notice of sale (public)
permanent in character because, as essential The doctrine of estoppel The doctrine of estoppel
and principal elements of a sugar central, may apply may not be applied
without them the sugar central would be
unable to function or carry on the industrial Action for replevin
purpose for which it was established. (B.H. May constitute real property subjected by
Berkentotter v. Cu Unjieng) the parties to a Chattel Mortgage (doctrine
of estoppel)
o They must also be carried on in a Ordinarily replevin may be brought to recover any
building or on a piece of land or on specific personal property unlawfully taken or
waters detained from the owner thereof, provided such
property is capable of identification and delivery;
The equipment in question were not deemed but replevin will not lie for the recovery of real
real property because the transportation property or incorporeal personal property.
business, according to the Court, “is not (Machinery and Engineering v. CA)
carried on in a building or permanently
on a piece of land,” as demanded by law. Rules on execution proceedings: cannot be
The equipment in question is destined only affected by the agreement of the parties to subject
to repair or service the transportation real properties to chattel mortgage
business (Mindanao Bus Co. v. City We hold that the rules on execution do not allow,
Assessor and Treasurer) and we should not interpret them in such a way as
to allow, the special consideration that parties to a
4) They must tend directly to meet the needs contract may have desired to impart to real estate,
of said industry or work for example, as personal property, when they are not
ordinarily so. Sales on execution affect the public
The mortgage was on the lands "together with all the and third persons. The regulation governing
buildings and improvements now existing or which sales on execution are for public officials to
may hereafter be constructed" thereon. And the follow. The form of proceedings prescribed for
machineries, as found by the trial court, were each kind of property is suited to its character,
permanently attached to the property, and installed not to the character which the parties have given
there by the former owner to meet the needs of to it or desire to give it.
certain works or industry therein. They were
therefore part of the immovable pursuant to Article We, therefore, hold that the mere fact that a house
415 of the Civil Code and need not be the subject was the subject of a chattel mortgage and was
of a separate chattel mortgage in order to be deemed considered as personal property by the parties
duly encumbered in favor of appellee. (GSIS v. does not make said house personal property for
Calsons) purposes of the notice to be given for its sale at
public auction. This ruling is demanded by the
Application of the doctrine of estoppel need for a definite, orderly and well- defined
The application of doctrine of estoppel is only limited regulation for official and public guidance and
to actions between the parties and cannot prejudice which would prevent confusion and
actions involving third persons. misunderstanding. (Manarang v. Ofilada)
The lease agreement, of which SPI is a party, clearly The doctrine, therefore, gathered from these cases is
provides that the machines in question are personal that although in some instances, a house of mixed
property, hence, SPI is estopped from denying the materials has been considered as a chattel between
characterization of the subject machines as personal them, has been recognized, it has been a constant
property. The Court cautioned, however, that its criterion nevertheless that, with respect to third
holding that the machines should be deemed persons, who are not parties to the contract, and
personal property pursuant to the Lease Agreement specially in execution proceedings, the house is
is good only insofar as the contracting parties considered as an immovable property (Navarro v.
are concerned. (Serg Products Inc. v. PCI) Pineda)
Comparisons of cases
Serg case Ago case
Caltex case BAA case Davao Saw Mindanao
Mill case Bus case
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Animal houses, pigeon-houses, beehives, Slag dump – the dirt and soil taken from a
fish ponds or breeding places of similar mine and piled upon the surface of the ground
nature, in case their owner has placed
them or preserves them with the XPNs:
intention to have them permanently Extracted minerals are already chattels
Water – as distinguished from waters, is a
attached to the land, and forming a
personal property
permanent part of it; the animals in these
places are included;
Docks and structures which, though
The structures mentioned in paragraph 6 are floating, are intended by their nature and
immovable by destination and the Code requires object to remain at a fixed place on a
that they be placed by the owner of the land in order river, lake, or coast;
to acquire the same nature or consideration of real
property. They are considered as immovables, though floating,
as long as they are intended by their nature and object
Art 415(6) Art 415(5) Art 415(4) Art 415(3) to remain at a fixed place on a river, lake, or coast.
Must be Must be Must be Need not
placed by placed by placed by be placed RULE: Must be intended by their nature and object to
the the owner, the owner, by the remain at a fixed place on a river, lake or coast
owner or by his or by his owner Floating houses are considered real property,
agent, agent, considering that the waters are considered
express or express or immovables
implied implied
Moreover, Article 415 (9) of the New Civil Code
RULE: There must be intent to return provides that "[d]ocks and structures which, though
For animals temporarily outside, they are still floating, are intended by their nature and object to
considered real property as long as the intent to remain at a fixed place on a river, lake, or coast" are
return is present considered immovable property. Thus, power
barges are categorized as immovable property
GR: Fish in the fish pond is considered real property by destination, being in the nature of machinery
XPN: The fish in fishponds will be considered as and other implements intended by the owner for
personal property for purposes of theft as expressly an industry or work which may be carried on in
provided for under the Revised Penal Code. (Art a building or on a piece of land and which tend
416(2)) directly to meet the needs of said industry or
work. (FELS Energy c. Province of Batangas)
Fertilizer actually used on a piece of land;
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
fungible – capable of being replaced by a thing of the The Roppongi property is correctly classified under
same kind paragraph 2 of Article 420 of the Civil Code as
property belonging to the State and intended for
Article 419 some public service (Laurel v. Garcia)
Property is either of public dominion or of private
ownership. The Court voided the joint venture agreement
between PEA and Amari since the former conveyed
Properties are owned either in to the latter submerged lands, which are declared to
1) public capacity (dominio publico) be part of the State’s inalienable natural resources,
2) private capacity (propiedad privado) hence, absolutely inalienable. (Chavez v. PEA)
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
development of the national wealth that the lot is a property of public dominion, it cannot be
period of acquisitive prescription can begin to burdened by a voluntary easement or right of
run. (Heirs of Malabanan v. Republic) way in favor of Villarico. In fact, its use by the
public is by mere tolerance of the government
3) They cannot be registered through the DPWH. Hence, Villarico cannot
4) They cannot be subject to execution or appropriate it for himself and he cannot claim any
attachment right of possession over it (Villarico v. Sarmiento)
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Accretions on rivers
Roads
Public domain Private ownership
National Provincial, city,
municipal Man-made accretion Accretions on river
banks, however, belong
Art 420 Art 424
to the owner of lands
National highways and Properties of public
adjoining the banks
roads constructed and dominion of the local
Not formed solely by the The deposit is due to the
maintained by the government unit
natural effect of the effects of the current of
national government concerned
water current of the river the river
through the DPWH
bordering said land but is
Includes right of way
also the consequence of
the direct and deliberate
Canals intervention of man
Canal – artificial waterway, drainage, irrigation, or
navigation Riparian Littoral
River Sea
Public domain Private ownership May be private Lands added to the
Canals constructed by Canals constructed by property if the alluvium shores by accretions and
the State and devoted to private persons within formed due to the effects alluvial deposits caused
public use their private lands and of the current of the by the action of the sea,
devoted exclusively for river form part of the public
private use domain
May not be subject to May be subject to
prescription prescription Ports constructed by the State
Must be situated within a Must be within Includes
public property properties of exclusive 1) Seaports
ownership
2) Airports
xxxif the appellant and her predecessors-in-interest
The charging of fees to the public does not
had acquired any right to the creek in question by
determine the character of the property whether it is
virtue of excavations which they had made thereon,
of public dominion or not. Article 420 of the Civil
they had lost such right through prescription,
Code defines property of public dominion as one
inasmuch as they failed to obtain, and in fact
‘intended for public use.’ Even if the government
they have not obtained, the necessary
collects toll fees, the road is still ‘intended for
authorization to devote it to their own use to the
public use’ if anyone can use the road under the
exclusion of all others. The use and enjoyment of
same terms and conditions as the rest of the
a creek, as any other property susceptible of
public. The charging of fees, the limitation on the
appropriation, may be acquired or lost through
kind of vehicles that can use the road, the speed
prescription, and the appellant and her predecessors
restrictions and other conditions for the use of the
in interest certainly lost such right through the said
road do not affect the public character of the road.”
cause, and they cannot now claim it exclusively for
(MIAA v. CA)
themselves after the general public had been openly
using the same from 1906 to 1928. (Mercado v.
Macabebe) The MIAA, MCIAA and PFDA are all
instrumentalities of the government, with their real
Rivers properties being owned by the Republic, therefore,
they are exempt from real estate tax imposed by the
*must be totally public or totally private
local government. The only exception is when they
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
lease their real property to a “taxable person” as The government may Submerged areas form
provided in Section 234 (a) of the Local declare these lands no part of the public
Government Code, in which case the specific real longer needed for public domain, and in that state,
property leased becomes subject to real estate tax. service are inalienable and
(MIAA v. CA, MCIAA v. Lapu-Lapu, PFDA v. outside the commerce of
CA) man.
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Refers to registration of Entitles the applicant to 2) The property has been declared alienable and
title on the basis of the registration of his disposable
possession. property on the basis of 3) There is an express government declaration or
prescription. manifestation that the property is already
patrimonial
4) Such declaration shall be in the form of a law
Registration is extended Registration is made
duly enacted by Congress or a Presidential
under the aegis of the available both by P.D.
Proclamation in cases where the President is
P.D. No. 1529 and the No. 1529 and the Civil
duly authorized by law
Public Land Act (PLA). Code.
Article 422
Property of public dominion, when no longer
The 30-year period is in ● Ordinary intended for public use or for public service, shall
relation to possession Prescription– form part of the patrimonial property of the State.
without regard to the 10 years, good (341a)
Civil Code. faith and with
just title Patrimonial property by conversion
● Extraordinary RULE: whether public or patrimonial — is predicated
Prescription – on the manner it is actually used, or not used
30 years, there must be an affirmative act, either on the
regardless of part of executive or the legislative, to reclassify
good faith and property of the public dominion into
patrimonial
just title
The intention to reclassify must be clear,
definite and must be based on correct legal
Those who by Those who have premises.
themselves or through acquired ownership of
their predecessors in private lands by Requisites
interest have been in 1) prescription under the 1) The property must no longer be used for the
open, continuous, provision of existing purpose to which it is intended (non-use)
exclusive, and laws may apply. (PD 2) there must be an affirmative act, either on the
notorious possession 1529, Sec 14 (2)) part of executive or the legislative, to reclassify
and occupation property of the public dominion into
2) alienable and patrimonial
disposable lands of
the public domain, In Cebu Oxygen Acetylene v. Bercilles, the City
3) under a bona fide Council of Cebu by resolution declared a certain
claim of acquisition of portion of an existing street as an abandoned road,
ownership, since June “the same not being included in the city
development plan.” Subsequently, by another
12, 1945 may apply.
resolution, the City Council of Cebu authorized the
(PD 1529, Sec 14 (1))
acting City Mayor to sell the land through public
bidding. Although there was no formal and explicit
Does not require that Require that the lands declaration of conversion of property for public use
the lands should have should have been into patrimonial property, the Supreme Court
been alienable and alienable and declared the withdrawal of the property in question
disposable during the disposable from public use and its subsequent sale as valid
entire period of during the
possession. entire period Since then, the Philippine Government has failed to
develop the Roponggi property. In 1985, the
of possession
Executive Department passed an administrative
and order creating a committee to study the disposition
expressly or utilization of some properties, including the
declared by the Roponggi property. In 1987, the President issued
State as Executive Order No. 296 providing that some
patrimonial. properties, including the Roponggi property, be
made available for sale or lease to non-Filipinos.
Answering the question as to whether the Roponggi
Requisites to establish that the subject land has property has been converted into patrimonial
been converted to patrimonial property property, the Supreme Court held that abandonment
1) The subject property has been classified as of the intention to use the Roponggi property for
agricultural land public service and to make it a patrimonial property
“cannot be inferred from the non-use alone specially
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
if the non-use was attributable not to the held and devoted for governmental purposes like
government’s own deliberate and indubitable will local administration, public education, public health
but to a lack of financial support to repair and etc. Nonetheless, the Court clarified that the
improve the property.” The Court likewise ruled classification of properties in the municipalities,
that E.O. No. 296 does not declare that the other than those for public use, as patrimonial under
property has lost its public character since the Art 424 (2) is without the prejudice to the provisions
executive order merely intends to make the of special laws. (Province of Zamboanga del
properties available to foreigners and not to Norte v. City of Zamboanga)
Filipinos. It was based on the wrong premise or
assumption that the Roponggi was earlier converted Characteristics of properties for public use of
into alienable real property (Laurel v. Garcia) LGUs
1) They are not alienable or disposable
Article 423 2) They are not subject to registration under the
The property of provinces, cities, and municipalities PD 1529 and cannot be subject to Torrens
is divided into property for public use and Title
patrimonial property. (343) 3) They are not susceptible to prescription
4) They cannot be leased, sold, or otherwise be
Article 424 the object of a contract
Property for public use, in the provinces, cities, and
5) They cannot be burdened by any voluntary
municipalities, consist of the provincial roads, city
streets, municipal streets, the squares, fountains, easements
public waters, promenades, and public works for
public service paid for by said provinces, cities, or Provincial roads, city streets, municipality streets
municipalities. xxlocal governments have no authority whatsoever
to control or regulate the use of public properties
All other property possessed by any of them is unless specific authority is vested upon them by
patrimonial and shall be governed by this Code, Congress. One such example of this authority given
without prejudice to the provisions of special laws. by Congress to the local governments is the power
(344a) to close roads as provided in Section 10, Chapter II
of the Local Government Code.
Properties of LGU
1) properties of public use However, the aforestated legal provision which gives
public use – those expressly authority to local government units to close roads
and other similar public places should be read and
enumerated
interpreted in accordance with basic principles
public service – those not mentioned in already established by law. These basic principles
Art 424 (1) but is held and devoted for under Art 424 have the effect of limiting such
governmental purpose such as local authority of the province, city or municipality to
administration, public education and close a public street or thoroughfare.
public health
2) patrimonial property – owned by the LGUs in Aside from the requirement of due process which
its private or proprietary capacity and shown to should be complied with before closing a road, street
have been acquired with its private or or park, the closure should be for the sole
corporate funds purpose of withdrawing the road or other public
property from public use when circumstances
show that such property is no longer intended or
The principle itself is simple: If the property is
necessary for public use or public service. When
owned by the municipality (meaning municipal
it is already withdrawn from public use, the property
corporation) in its public and governmental capacity,
then becomes patrimonial property of the local
the property is public and Congress has absolute
government unit concerned. It is only then that the
control over it (HELD IN TRUST). But if the
municipality can "use or convey them for any
property is owned in its private or proprietary
purpose for which other real property belonging to
capacity, then it is patrimonial and Congress has no
the local unit concerned might be lawfully used or
absolute control. The municipality cannot be
conveyed" in accordance with the last sentence of
deprived of it without due process and payment of
Section 10, Chapter II of Blg. 337, known as Local
just compensation
Government Code. (Macasiano v. Diokno)
According to the Court, if the norm obtaining under
the Civil Code is to be followed, those properties of Macasiano case Cebu Oxygen Case
the LGUs not mentioned under Art 424 (1) will The Municipal Order is The order of the City
necessarily classified as patrimonial property, void Council is valid
including those properties for public service in the For the purpose of For the purpose of
LGUs. Hence, the Court followed the norm setting up flea markets declaring the terminal
obtaining under the principles constituting the law and vending areas roads as abandoned
of Municipal Corporations. Under this norm, to be
considered public, it is enough that the property be Squares, fountains, public waters, promenades etc
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Article 426 10) the right to accessions. (Art. 440, NCC) – jus
Whenever by provision of the law, or an individual accessiones
declaration, the expression "immovable things or
property," or "movable things or property," is used, Other real rights aside from ownership
it shall be deemed to include, respectively, the things 1) real rights over one’s own property (jus in re
enumerated in Chapter 1 and Chapter 2. propria)
2) real rights over the property of another (jus in
Whenever the word "muebles," or "furniture," is
re aliena)
used alone, it shall not be deemed to include money,
credits, commercial securities, stocks and bonds, Examples of jus in re aliena are usufruct,
jewelry, scientific or artistic collections, books, easement, possession and mortgage
medals, arms, clothing, horses or carriages and their These rights presuppose the existence of an
accessories, grains, liquids and merchandise, or other ownership
things which do not have as their principal object the
furnishing or ornamenting of a building, except Subject matters
where from the context of the law, or the individual 1) Things
declaration, the contrary clearly appears. (346a) 2) Rights
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
whose possession is predicated on a contract like 1) initially, possession of the property by the
agency, trust, pledge or lease. A party vested with the defendant was by contract with or by
right of possession to the property may set up this right tolerance of the plaintiff
even against the owner thereof. Thus, owners or 2) eventually, such possession became illegal
possessors of a property have no authority to use force upon notice and demand by plaintiff to
and violence to eject alleged usurpers who were in prior defendant of the termination of the latter’s
physical possession of it. right of possession – jurisdictional in
nature
Article 536. In no case may possession be acquired 3) the defendant remained in possession of
through force or intimidation as long as there is a the property and deprived the plaintiff of
possessor who objects thereto. He who believes that the enjoyment thereof
he has an action or a right to deprive another of the 4) within one year from the last demand
holding of a thing, must invoke the aid of the on defendant to vacate the property, the
competent court, if the holder should refuse to plaintiff instituted the complaint for
deliver the thing. (441a) ejectment
Actions for recovery of possession
Forcible entry Unlawful detainer
Real property
the person who Possession is withheld
1) Accion interdictal originally held it was after the expiration or
2) Accion publiciana deprived of possession termination of the right
3) Accion reivindicatoria by “force, intimidation, to hold possession, by
threat, strategy, or virtue of any a lessor,
Personal property stealth.” vendor, vendee, or other
Replevin person against whom the
possession of any land or
Accion interdictal building is unlawfully
summary action withheld contract,
seeks the recovery of physical possession express or implied.
where the dispossession has not lasted for Possession of the Possession of the
defendant is illegal from defendant is illegal from
more than one year and is to be exclusively
the very beginning the termination of right
brought in the proper inferior court
Title is not the issue, but who among the plaintiff
The issue involved is material possession or and defendant should be entitled to material
possession de facto possession
comprises two distinct causes of action
XPN: when determination of ownership is
1) forcible entry (detentacion) - Forcible entry necessary to resolve
is a summary action to recover material or A party who can prove Defendant remained in
physical possession of real property when the prior possession can possession of the
person who originally held it was deprived of recover such possession property and deprived
possession by “force, intimidation, threat, even against the owner the plaintiff of the
strategy, or stealth.” himself; no matter how enjoyment thereof
long or short the
possession Plaintiff need not prove
Requisites of MTC to acquire jurisdiction
prior possession
Plaintiffs must allege their prior Within the exclusive and original jurisdiction of the
physical possession of the property Metropolitan or Municipal Trial Courts
They were deprived by force, Must be brought within 1 year
intimidation, threat, strategy, stealth Must be filed 1 year from Must be filed 1 year from
Must be filed within 1 year from the date of actual entry last demand
time the owners or legal possessors
learned of their deprivation or physical Stealth – from
possession of the land or building discovery
Not processes to determine actual title
2) unlawful detainer (desahuico). - may be filed
when possession by “after the expiration or Relevance of 1 year prescriptive period
termination of the right to hold possession, by Article 555. A possessor may lose his possession:
virtue of any a lessor, vendor, vendee, or
other person against whom the possession (1) By the abandonment of the thing;
of any land or building is unlawfully
(2) By an assignment made to another either by
withheld contract, express or implied.”
onerous or gratuitous title;
Requisites
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
(3) By the destruction or total loss of the thing, or 2) will not bar an action between the same parties
because it goes out of commerce; respecting title to the land or building
3) not a collateral attack proscribed by Sec 48 PD
(4) By the possession of another, subject to the 1529
provisions of article 537, if the new possession XPN: When the issue of ownership is raised by the
has lasted longer than one year. But the real defendant in his pleadings and the question of
right of possession is not lost till after the lapse possession cannot be resolved without deciding the
of ten years. (460a)
issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession
GR: Action for recovery
(provisional only)
1) will not bind the title or affect the ownership
of the land or building
Accion reivindicatoria
2) will not bar an action between the same parties
An action whereby plaintiff alleges ownership over a
respecting title to the land or building
parcel of land and seeks recovery of its full possession.
3) not a collateral attack proscribed by Sec 48 PD
1529
It is not a recovery of ownership
XPN: When the issue of ownership is raised by the
What happens in an accion reivindicatoria is that the
defendant in his pleadings and the question of
plaintiff has been deprived of the exercise of all the
possession cannot be resolved without deciding the
rights included in ownership and what he seeks to
issue of ownership, the issue of ownership shall be
recover by filing such an action is, in reality, only the
resolved only to determine the issue of possession
exercise of the rights included in ownership.
(provisional only)
Interdictal Publiciana Reivindicatoria
Accion publiciana Possession de Possession de Possession as
An action for recovery of the right to possess and is a facto jure (jus incident to
plenary action in an ordinary civil proceeding to possessionis) ownership (jus
determine the better right of possession (possession de possidendi)
jure) of realty independent of the title or ownership of MTC, MeTC MTC – Metro MTC – Metro
the property Manila, assessed Manila, assessed
value does not value does not
can be filed when the dispossession lasted for more exceed 50,000 exceed 50,000
than 1 year RTC – Metro RTC – Metro
used to refer to an ejectment suit where the cause Manila, assessed Manila, assessed
of dispossession is not among the grounds for value > 50,000 value > 50,000
forcible entry or unlawful detainer or when MTC – outside MTC – outside
Metro Manila, Metro Manila,
possession has been lost for more than one year assessed value assessed value
and the action can no longer be maintained under does not exceed does not exceed
Rule 70 20,000 20,000
the objective is to recover possession only RTC – outside RTC – outside
not conclusive on the issue of ownership Metro Manila, Metro Manila,
assessed value > assessed value >
jurisdiction shall depend on the location of the 20,000 20,000
realty and its assessed value Not a direct or collateral attack to title
MTC – Metro Manila, assessed value
does not exceed 50,000 Article 429
RTC – Metro Manila, assessed value > The owner or lawful possessor of a thing has the
50,000 right to exclude any person from the enjoyment and
MTC – outside Metro Manila, assessed disposal thereof. For this purpose, he may use such
value does not exceed 20,000 force as may be reasonably necessary to repel or
RTC – outside Metro Manila, assessed prevent an actual or threatened unlawful physical
value > 20,000 invasion or usurpation of his property. (n)
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
1) That the evil sought to be avoided actually In civil cases, the law requires that the party who alleges
exists; a fact and substantially asserts the affirmative of the
2) That the injury feared be greater than that done issue has the burden of proving it.
to avoid it;
3) That there be no other practical and less Article 434 of the New Civil Code provides that to
harmful means of preventing it successfully maintain an action to recover the
ownership of a real property, the person who claims a
Indemnity for damages better right to it must prove two (2) things:
GR: The persons benefited by such interference are 1) the identity of the land claimed; and (PROOF
duty bound to indemnify the owner for the damage OF IDENTITY)
suffered by the latter.
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
By describing the location, area and XPN: Minerals found underneath the land are
boundaries properties of the State (La’Bugal Blaan v Ramos)
Must be of such a character as to
definitely and accurately segregate the In finding the arguments of NAPOCOR to be
land in question from the adjoining without merit, the Supreme Court held that pursuant
property to Article 437 of the Civil Code, the ownership of
Boundary prevails over the area land extends to the surface as well as to the subsoil
mentioned in the description under it. The Court explained that the argument by
the petitioner that the landowners’ right extends to
No need to prove identity if the
the sub-soil insofar as necessary for their practical
plaintiff has already proved his right to interests serves only to further weaken its case
ownership because the theory would limit the right to the sub-
2) his title thereto (PROOF OF TITLE) soil upon the economic utility which such area offers
an original certificate of title indicates to the surface owners. Presumably, according to the
true and legal ownership by the Court, the landowners’ right extends to such height
registered owners over the disputed or depth where it is possible for them to obtain some
premises. benefit or enjoyment, and it is extinguished beyond
Tax declarations are not conclusive such limit as there would be no more interest
proof of ownership, but it is the best protected by law. In this case, the landowners could
proof of possession. When coupled have dug upon their property motorized deep wells
with proof of actual possession, they but were prevented from doing so by the authorities
precisely because of the construction and existence
are strong evidence of ownership
of the tunnels underneath the surface of their
property. Hence, the land owners still had a legal
If the plaintiff is unable to prove any of the foregoing interest in the sub-terrain portion insofar as they
requisites, his action will fail even if the defendant could have excavated the same for the construction
cannot prove his title to the property. of the deep well. (NPC v. Ibrahim)
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Lessee – entitled to the natural and industrial young and other products of animals
fruits In the absence of any agreement to
Lessor (owner) – entitled to the civil fruits in settle the ownership of the offspring,
the form of rent the rule is that the young belongs to the
owner of the female parent
3) Antichresis
Contract of antichresis - creditor acquires the 2) Industrial
right to receive the fruits of an immovable of Requisites
his debtor, with the obligation to apply them to 1) Produced by lands of any kind
the payment of the interest, if owing, and 2) through cultivation or labor
thereafter to the principal of his credit.
Natural Industrial
Creditor - acquires the right to receive the Both products of the soil
fruits of an immovable of his debtor with the Spontaneous With human
obligation to apply them to the payment of intervention
interest
Debtor (owner) – not entitled 3) Civil
These are fruits which are produced not
4) Possession in good faith because of the fecundity of the principal
Article 544. A possessor in good faith is thing owned but rather because of the
entitled to the fruits received before the socio-juridical relationship in which the
possession is legally interrupted. thing enters
Natural and industrial fruits are considered GR: These are the income and revenues
received from the time they are gathered or derived from the property itself
severed. XPN: Bonus paid to an owner of a piece
of land for undertaking the risk of securing
Civil fruits are deemed to accrue daily and
his property with a loan
belong to the possessor in good faith in that
proportion. (451)
In just compensation when there is taking
5) Fruits naturally falling of property
Article 681. Fruits naturally falling upon The constitutional limitation of "just
adjacent land belong to the owner of said compensation" is considered to be the
land. (n) sum equivalent to the market value of
the property, broadly described to be the
price fixed by the seller in open market
Article 442 in the usual and ordinary course of legal
Natural fruits are the spontaneous products of the action and competition or the fair value
soil, and the young and other products of animals. of the property as between one who
receives, and one who desires to sell, i[f]
Industrial fruits are those produced by lands of any fixed at the time of the actual taking by
kind through cultivation or labor. the government. Thus, if property is
taken for public use before
Civil fruits are the rents of buildings, the price of compensation is deposited with the
leases of lands and other property and the amount court having jurisdiction over the case,
of perpetual or life annuities or other similar income. the final compensation must include
(355a) interest[s] on its just value to be
computed from the time the property is
Kinds of fruits taken to the time when compensation is
1) Natural actually paid or deposited with the court.
spontaneous products of the soil – In fine, between the taking of the
necessary that there must be no human property and the actual payment, legal
labor which has intervened in its interest[s] accrue in order to place the
generation (industrial) owner in a position as good as (but not
better than) the position he was in before
Trees growing spontaneously on the the taking occurred. (Evergreen v.
soil Republic)
GR: They are immovables themselves
and are not accessions.
XPN: If they are being exploited for an Article 443
industry – classified as industrial fruits He who receives the fruits has the obligation to pay
the expenses made by a third person in their
because of human intervention
production, gathering, and preservation. (356)
25
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
For animals – they are deemed existing at the beginning 5) That bad faith subjects a person to damages
of the maximum period of gestation and other unfavorable consequences.
6) That bad faith of one party neutralizes the bad
For plants which produce only a single crop then faith of the other and, therefore, both should
perish – deemed manifest or existing from the time the be considered as having acted in good faith.
seedlings appear on the ground, without waiting for the 7) The Civil Code limits the cases of industrial
grains to appear accession to those involving land and materials
belonging to different owners for in these cases
SECTION 2 a controversy arises as to the rights and
obligations of the parties to each other or to
Right of Accession with Respect to Immovable one another
Property 8) The Court frowns upon forced co-ownership
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
OR OR OR
Article 579. The usufructuary may make on the
property held in usufruct such useful improvements to remove Remove in case Remove in any
or expenses for mere pleasure as he may deem he can do so case
without injury
proper, provided he does not alter its form or Damages Liable
substance; but he shall have no right to be *Art 526
indemnified therefor. He may, however, remove **Art 453
such improvements, should it be possible to do so
without damage to the property. (487)
Article 448
The owner of the land on which anything has been
Article 580. The usufructuary may set off the
built, sown or planted in good faith, shall have the
improvements he may have made on the property
right to appropriate as his own the works, sowing or
against any damage to the same. (488)
planting, after payment of the indemnity provided
for in articles 546 and 548, or to oblige the one who
4) Owner is the BPS who later loses ownership of built or planted to pay the price of the land, and the
the land by sale or otherwise one who sowed, the proper rent. However, the
5) Sale with right to repurchase builder or planter cannot be obliged to buy the land
if its value is considerably more than that of the
Controversial cases building or trees. In such case, he shall pay
Three possible persons involved: reasonable rent, if the owner of the land does not
1) Landowner choose to appropriate the building or trees after
2) Builder, planter, sower (BPS) proper indemnity. The parties shall agree upon the
3) Owner of the materials terms of the lease and in case of disagreement, the
court shall fix the terms thereof. (361a)
Three possible controversial situations in industrial
accession: Article 449
1) When the landowner builds, plants or sows on He who builds, plants or sows in bad faith on the
land of another, loses what is built, planted or sown
his land but using materials belonging to
without right to indemnity. (362)
another; - Art 447
2) When a person builds, plants or sows on
Article 450
another’s land but he made use of materials The owner of the land on which anything has been
belonging to him; - Art 448, 449, 450, 451, 452 built, planted or sown in bad faith may demand the
3) When a person builds, plants or sows on demolition of the work, or that the planting or
another’s land but he made use of materials sowing be removed, in order to replace things in
belonging to another. -Art 455 their former condition at the expense of the person
who built, planted or sowed; or he may compel the
28
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
builder or planter to pay the price of the land, and If there was bad faith, not only on the part of the
the sower the proper rent. (363a) person who built, planted or sowed on the land of
another, but also on the part of the owner of such
Article 451 land, the rights of one and the other shall be the
In the cases of the two preceding articles, the same as though both had acted in good faith.
landowner is entitled to damages from the builder,
planter or sower. (n) It is understood that there is bad faith on the part of
the landowner whenever the act was done with his
Article 452 knowledge and without opposition on his part.
The builder, planter or sower in bad faith is entitled (364a)
to reimbursement for the necessary expenses of
preservation of the land. (n) Persons involved
1) Landowner
Persons involved 2) Builder, planter, sower (BPS)
1) Landowner
2) Builder, planter, sower (BPS) Possible scenario:
Both acted in bad faith
Possible scenarios One basic principle of accesion continua is that the bad
1) BPS acted in bad faith; and faith of one person neutralizes the bad faith of another
2) BPS acted in good faith and both should be considered as having acted in good
faith
Rights of Builder, Planter, Sower
landowner Good faith* Bad faith** Provision that will govern
Appropriate With No indemnity Article 448 of the New Civil Code governs this
the accession indemnity (Art 449)
(Art 448) situation such that whatever has been discussed therein
shall likewise apply in this situation
OR OR
Possible scenario:
Demand Done at their Done at their Landowner acted in bad faith
demolition or expense – expense (Art Article 447 of the New Civil Code governs this
removal of ONLY 450) situation such that whatever has been discussed therein
work UPON
FAILURE shall likewise apply in this situation
OF BPS TO
PAY Article 455
Damages Liable (Art If the materials, plants or seeds belong to a third
451)
person who has not acted in bad faith, the owner of
*Art 526
the land shall answer subsidiarily for their value and
**Art 453 only in the event that the one who made use of them
has no property with which to pay.
Remedies if builder or planter fails or refuses to
pay This provision shall not apply if the owner makes
1) Payment of rentals use of the right granted by article 450. If the owner
2) Demand removal of the building and trees of the materials, plants or seeds has been paid by the
(Ignacio v. Hilario) builder, planter or sower, the latter may demand
3) Sale of land and improvement (Bernardo v. from the landowner the value of the materials and
Bataclan) labor. (365a)
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Sower – rent
Possible scenario: (Art 448) OR
The BPS who is not the material owner used the
materials, plants or seeds belong to a third person who
has not acted in bad faith Demand Done at their
demolition or expense – Done at their
removal of work ONLY UPON expense (Art
Material owner FAILURE OF 450)
is in good faith BPS TO PAY
Landowner Subsidiarily liable Damages Liable (Art 451)
1) in case of
insolvency of
the builder, Table 3 – (Art 455)
planter or Material owner is in
sower; and good faith
2) the owner of Subsidiarily liable
the land
Landowner
appropriates 1) in case of insolvency of
the building, the builder, planter or
planting or sower; and
sowing. 2) the owner of the land
BPS Primarily liable to appropriates the
material owner building, planting or
sowing.
SUMMARY: BPS Primarily liable to material
owner
Provision Active (who Passive (who Table to use
is in good has the Table 4 – Applicable to all provisions
faith or bad rights) Possessor/Builder
faith)
447 Landowner/ Material owner 1,4
Rights to Good faith Bad faith
BPS expenses
448 BPS Landowner 2, 4 Necessary REFUNDABLE with REFUNDABLE (Art
449 BPS Landowner 2, 4 RIGHT TO RETAIN 549)
450 BPS Landowner 2, 4 (Art 546)
451 BPS Landowner 2, 4 Useful REFUNDABLE with NONREFUNDABLE
RIGHT TO RETAIN (Art 549)
453 (bad faith + Landowner 2, 4
(Art 546)
bad faith) = and BPS
good faith
RIGHT TO
454 Landowner BPS 1,4
REMOVE IF NO
455 Material owner Material owner 3 INJURY and
IF OWNER DOES
Table 1 - (Art 447, 454) NOT PREFER TO
REFUND (Art 547)
Rights of material Land owner (also the BPS) Ornamental NONREFUNDABLE, NONREFUNDABLE
owner Good faith* Bad faith** (Art 548) (Art 549)
Option to be Pay the value of Pay the value of
reimbursed materials materials RIGHT TO RIGHT TO
REMOVE IF NO REMOVE IF NO
OR OR OR INJURY and INJURY and
IF OWNER DOES IF OWNER DOES
NOT PREFER TO NOT PREFER TO
to remove Remove in case Remove in any
REFUND (Art 548) REFUND (Art 549)
he can do so case
without injury
Damages Liable NATURAL ACCESSION
1) alluvion
Table 2 – (Art 448, 449, 450, 451, 453) 2) avulsion
Rights of land Builder, Planter, Sower 3) natural change of course of river
owner Good faith* Bad faith** 4) formation of island
Appropriate the With indemnity No indemnity
accession (Art 448) (Art 449)
Article 457
To the owners of lands adjoining the banks of rivers
OR OR belong the accretion which they gradually receive
Sell Builder & Builder &
from the effects of the current of the waters. (336)
planter – pay planter – pay
price of the land price of the land Article 458
The owners of estates adjoining ponds or lagoons do
XPN: if the Sower – rent
value of the land
not acquire the land left dry by the natural decrease
(Art 450)
> value of of the waters, or lose that inundated by them in
improvements extraordinary floods. (367)
30
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Principal: The riparian land, or the land adjoining the Whenever the current of a river, creek or torrent
bank of the river segregates from an estate on its bank a known
Accessory: alluvial deposits accumulated gradually portion of land and transfers it to another estate, the
along such riparian land owner of the land to which the segregated portion
Rationale: to compensate him for the danger of loss belonged retains the ownership of it, provided that
that he suffers because of the location of his land he removes the same within two years. (368a)
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
course in proportion to the area lost. However, the PUBLIC DOMINION, even if natural or with
owners of the lands adjoining the old bed shall have human intervention
the right to acquire the same by paying the value
thereof, which value shall not exceed the value of the Article 463
area occupied by the new bed. (370a) Whenever the current of a river divides itself into
branches, leaving a piece of land or part thereof
Article 462 isolated, the owner of the land retains his ownership.
Whenever a river, changing its course by natural He also retains it if a portion of land is separated
causes, opens a new bed through a private estate, this from the estate by the current. (374)
bed shall become of public dominion. (372a)
Article 464
Rule as to ownership of riverbeds Islands which may be formed on the seas within the
GR: Rivers and natural beds are public dominion jurisdiction of the Philippines, on lakes, and on
XPN: River beds which are abandoned through the navigable or floatable rivers belong to the State.
natural change in the course of the waters ipso facto (371a)
belong to the owners whose lands are occupied by the
new course in proportion to the area lost. (Art 461) Article 465
Islands which through successive accumulation of
Old bed New bed alluvial deposits are formed in non-navigable and
Have the right to acquire Ipso facto owner of river non-floatable rivers, belong to the owners of the
the same by paying the beds which are margins or banks nearest to each of them, or to the
value thereof, which abandoned through the owners of both margins if the island is in the middle
value shall not exceed the natural change in the of the river, in which case it shall be divided
value of the area course of the waters longitudinally in halves. If a single island thus
occupied by the new bed. (compensation) formed be more distant from one margin than from
(accession) the other, the owner of the nearer margin shall be
the sole owner thereof. (373a)
Requisites
1. The change must be sudden in order that the Formation of islands
old river may be identified; 1) the current of a river simply divides itself into
2. The changing course must be more or less branches – Art 463
permanent, and not temporary flooding of o applies whether navigable or floatable
another’s land; or not
3. The change of the river must be a natural one o no accession has taken place in the
(i.e. caused by natural forces, not by artificial situation contemplated in Article 463
means) because no new property has been
4. There must be definite abandonment by the added or attached to the property of
government. any person
5. The river must continue to exist, that is, it must 2) an island is formed on a sea, lake or navigable
not completely dry up or disappear
or floatable river through whatever cause – Art
464
PD 1607 – The Water Code of the Philippines
o A river is considered to be navigable or
ARTICLE 58. When a river or stream suddenly
floatable if it is able to carry the
changes its course to traverse private lands, the
owners of the affected lands may not compel the produce of the land along its banks to
government to restore the river to its former bed; the market.
nor can they restrain the government from o expressly declared to be property of
taking steps to revert the river or stream to its the State
former course. The owners of the lands thus 3) an island formed in non-navigable or non-
affected are not entitled to compensation for any floatable rivers through successive
damage sustained thereby. However, the former accumulation of deposit in the same manner as
owners of the new bed shall be the owners of the alluvion.
abandoned bed in proportion to the area lost by RULES:
each. It shall belong to the owner of the
margins or banks nearest to the
The owners of the affected lands may undertake to
island;
return the river or stream to its old bed at their own
expense; Provided, That a permit therefor is secured If the island is in the middle of the river
from the Secretary of Public Works, Transportation - the same shall be owned by the
and Communication and work pertaining thereto are owners of both margins, in which
commenced within two years from the change in the case it shall be divided longitudinally
course of the river or stream. in halves; or
If the island be more distant from one
When river dries up margin than from the other, the
32
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
cases, furthermore, there shall be indemnity for XPN: Nevertheless, in case the thing united for the
damages. use, embellishment or perfection of the other, is much
more precious than the principal thing, the owner
If either one of the owners has made the of the former may demand its separation, even though
incorporation with the knowledge and without the the thing to which it has been incorporated may suffer
objection of the other, their respective rights shall be some injury. (Art 469)
determined as though both acted in good faith.
(379a)
Non-separable
Article 471 Whenever two movable things belonging to different
Whenever the owner of the material employed owners are, without bad faith, united in such a way that
without his consent has a right to an indemnity, he they form a single object, the owner of the principal
may demand that this consist in the delivery of a thing acquires the accessory, indemnifying the former
thing equal in kind and value, and in all other owner thereof for its value. (Art 466)
respects, to that employed, or else in the price
thereof, according to expert appraisal. (380) BAD FAITH
Owner of the principal Owner of the
Three forms of accession continua in movable (Art 470) accessory (Art 470)
properties demand payment for the lose the thing
1) adjunction or conjunction - two or more value of the accessory, incorporated
movable things belonging to different owners with a right to be
are so united that they cannot be separated indemnified for
without causing injury to one or both them, damages
thereby giving rise to a new thing. (Art 466,
467, 468, 469, 470, 471) 1) delivery of a
thing equal in
2) commixtion or confusion - mixture of two or
kind and value,
more things belonging to different owners. If and in all other
the things mixed are solid, it is called respects, or else
commixtion; if the things are liquid, it is called 2) in the price
confusion. (Art 472, 473) thereof,
3) specification - work of a person is done on according to
the material of another, such material, in expert appraisal.
consequence of the work itself, undergoing a
transformation. (Art 474, 475)
demand for the
Definitions separation of the
If determinable accessory, even though
Principal - deemed to be that to which the other has for this purpose it be
necessary to destroy the
been united as an ornament, or for its use or perfection.
principal thing, with a
(Art 467) right to be indemnified
Accessory – that which has been united to the for damages
principal as its ornament, for its use of for perfection Damages Damages
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
determined by the provisions of the preceding 1) appropriate the new thing to himself after
article. paying indemnity for the value of the work; or
2) demand indemnity for the material.
If the one who caused the mixture or confusion
acted in bad faith, he shall lose the thing belonging BAD FAITH
to him thus mixed or confused, besides being GR:
obliged to pay indemnity for the damages caused to
1) to appropriate the work for himself without
the owner of the other thing with which his own was
paying anything to the maker; or
mixed. (382)
2) to demand of the latter (worker) that he
Legal Effects of Commixtion or Confusion indemnify him for the value of the material and
1) by will of both or all owners of the things the damages he may have suffered.
mixed; XPN: value of the work, for artistic or scientific
reasons, is considerably more than that of the material,
A STATE OF CO-OWNERSHIP SHALL
the owner of the material cannot appropriate the work.
ARISE
In such a case, the owner of the material can only
EACH OWNER SHALL ACQUIRE A
demand from the worker the value of his materials and
RIGHT IN PROPORTION TO THE
the damages he may have suffered
PART BELONGING TO HIM,
BEARING IN MIND THE VALUE OF
CHAPTER 3
THE THINGS MIXED
Quieting of Title
2) by will of only one owner acting in good faith;
or
Article 476
HE LOSES THE THING
Whenever there is a cloud on title to real property or
PAY DAMAGES any interest therein, by reason of any instrument,
3) by chance or fortuitous event record, claim, encumbrance or proceeding which is
apparently valid or effective but is in truth and in fact
invalid, ineffective, voidable, or unenforceable, and
Article 474 may be prejudicial to said title, an action may be
One who in good faith employs the material of brought to remove such cloud or to quiet the title.
another in whole or in part in order to make a thing
of a different kind, shall appropriate the thing thus An action may also be brought to prevent a cloud
transformed as his own, indemnifying the owner of from being cast upon title to real property or any
the material for its value. interest therein.
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Quieting of title - is a common law remedy for the There is co-ownership whenever the ownership of
removal of any cloud upon or doubt or uncertainty an undivided thing or right belongs to different
with respect to title to real property. persons.
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
share of the expenses and taxes. No such waiver ownership. The respondents' advance payments are
shall be made if it is prejudicial to the co-ownership. in the nature of necessary expenses for the
(395a) preservation of the co-ownership. Article 488 of the
Civil Code provides that necessary expenses may be
Article 489 incurred by one co-owner, subject to his right to
Repairs for preservation may be made at the will of collect reimbursement from the remaining co-
one of the co-owners, but he must, if practicable, owners. Until reimbursed, the respondents hold a
first notify his co-owners of the necessity for such lien upon the subject property for the amount they
repairs. Expenses to improve or embellish the thing advanced. (Taghoy v. Tigol)
shall be decided upon by a majority as determined in
article 492. (n) Article 490
Whenever the different stories of a house belong to
Expenses for reservation different owners, if the titles of ownership do not
1) necessary expenses - may be made at the will specify the terms under which they should
of one of the co-owners, but he must, if contribute to the necessary expenses and there exists
practicable, first notify his co-owners of the no agreement on the subject, the following rules
necessity for such repairs* shall be observed:
The only effect of the failure to comply
(1) The main and party walls, the roof and the other
with the notice requirement is to place things used in common, shall be preserved at the
upon the co-owner who incurred expense of all the owners in proportion to the value
the expenses the burden of proving of the story belonging to each;
the necessity of the repairs and the (2) Each owner shall bear the cost of maintaining the
reasonableness of the expenses. floor of his story; the floor of the entrance, front
2) useful and ornamental expenses - shall be door, common yard and sanitary works common to
decided upon by a majority as determined in all, shall be maintained at the expense of all the
article 492 owners pro rata;
(3) The stairs from the entrance to the first story
Right to demand contribution shall be maintained at the expense of all the owners
Each co-owner shall have a right to compel the other pro rata, with the exception of the owner of the
ground floor; the stairs from the first to the second
co-owners to contribute to the expenses of
story shall be preserved at the expense of all, except
preservation of the thing or right owned in common the owner of the ground floor and the owner of the
and to the taxes. (Art 488) first story; and so on successively. (396)
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
is located and in other common areas of the building controlling interest in the object of the co-
(RA 4726) ownership.
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Soledad would be taken from Salome’s 4/16 chapter (on conjugal partnership of gains) or by the
undivided interest in said lot, which the latter could spouses in their marriage settlements.
validly transfer in whole or in part even without the
consent of the other co-owners. Salome’s right to The basic and established fact is that during his
sell part of her undivided interest in the co-owned lifetime, without the knowledge and consent of his
property is absolute in accordance with the well- wife, Marcelino Dailo, Jr. constituted a real estate
settled doctrine that a co-owner has full ownership mortgage on the subject property, which formed
of his pro-indiviso share and has the right to alienate, part of their conjugal partnership. By express
assign or mortgage it, and substitute another person provision of Article 124 of the Family Code, in the
in its enjoyment. Since Salome’s clear intention was absence of (court) authority or written consent of
to sell merely part of her aliquot share in Lot 162, in the other spouse, any disposition or encumbrance of
our view no valid objection can be made against it the conjugal property shall be void. (Homeowner’s
and the sale can be given effect to the full extent Savings & Loan Bank v. Dailo)
We are not unaware of the principle that a co-owner Co-ownership in Article 147 of the Family Code
cannot rightfully dispose of a particular portion of a Sale of property acquired during cohabitation
co-owned property prior to partition among all the Before termination VOID if without the
co-owners. However, this should not signify that the consent of the other
vendee does not acquire anything at all in case a After termination Article 493 applies
physically segregated area of the co-owned lot is in
fact sold to him. Since the co-owner/ vendor’s Right of legal redemption in co-ownership
undivided interest could properly be the object of
Article 1620. A co-owner of a thing may exercise the
the contract of sale between the parties, what the
right of redemption in case the shares of all the other
vendee obtains by virtue of such a sale are the same
co-owners or of any of them, are sold to a third
rights as the vendor had as co-owner, in an ideal
person. If the price of the alienation is grossly
share equivalent to the consideration given under
excessive, the redemptioner shall pay only a
their transaction. In other words, the vendee steps
reasonable one.
into the shoes of the vendor as co-owner and
acquires a proportionate abstract share in the
Should two or more co-owners desire to exercise the
property held in common. (Del Campo v. CA)
right of redemption, they may only do so in
proportion to the share they may respectively have
Where a parcel of land, forming past of the in the thing owned in common. (1522a)
undistributed properties of the dissolved conjugal
partnership of gains, is sold by a widow to a
Article 1623. The right of legal pre-emption or
purchaser who merely relied on the face of the
redemption shall not be exercised except within
certificate of title thereto, issued solely in the name
thirty days from the notice in writing by the
of the widow, the purchaser acquires a valid title to
prospective vendor, or by the vendor, as the case
the land even as against the heirs of the deceased
may be. The deed of sale shall not be recorded in
spouse. (Cruz v. Leis)
the Registry of Property, unless accompanied by an
affidavit of the vendor that he has given written
Sale of property without the consent of the other notice thereof to all possible redemptioners.
spouse
ACOP CPOG The right of redemption of co-owners excludes that
rules on co-ownership governed by the rules on of adjoining owners. (1524a)
apply in a suppletory contract of partnership
manner in all that is not in Art 1620 Art 1088
conflict with what is The right of redemption Sale is the hereditary
expressly determined in that arises in favor of the right itself, fully or in
the chapter or by the other co-heirs when the part, in the abstract
spouses in their sale consists of an sense, without specifying
marriage settlements interest in some any particular object
The sale is both void particular property or
properties of the
The regime of conjugal partnership of gains is a inheritance,
special type of partnership, where the husband and
wife place in a common fund the proceeds, Requisites
products, fruits and income from their separate 1) There must be a co-ownership;
properties and those acquired by either or both
2) one of the co-owners sold his right to a
spouses through their efforts or by chance. Unlike
stranger;
the absolute community of property wherein the
rules on co-ownership apply in a suppletory manner, 3) the sale was made before the partition of the
the conjugal partnership shall be governed by the co-owned property;
rules on contract of partnership in all that is not in 4) the right of redemption must be exercised by
conflict with what is expressly determined in the one or more co-owners within a period of
thirty days to be counted from the time that
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compelling reasons therefor. This rule challenged ruling of the respondent court is,
shall apply regardless of whoever owns the therefore, based on erroneous premises.
property or constituted the family home. (Tan v. CA)
(238a)
Adille case Tan case
5) When there is no repudiation of the co- The redemption by By their knowing
ownership - No prescription shall run in favor one co-heir or co- acts of omission, the
of a co-owner or co-heir against his co-owners owner of the heirs in the Tan case
or co-heirs so long as he expressly or impliedly property in its allowed the
recognizes the co-ownership. totality does not extinction of their
6) When partition would render the thing vest in him co-ownership.
unserviceable for the use for which it is ownership over it.
intended (Art 495) A compromise
agreement between
D. Annie Tan and
Extinguishment of co-ownership the bank was
1) By the merger in one person of all the interest obtained after
of the co-ownership; expiration of the
A redemption by a co-owner within the redemption period
period prescribed by law inures to the There is no There is
benefit of all the other co-owners. In such a extinguishment extinguishment
situation, therefore, the redemption made by
one co-owner will simply entitle him to 2) By prescription of the thing or right in favor
collect reimbursement from the remaining of third persons or a co-owner;
co-owners pursuant to the provisions of GR: No prescription shall lie in favor of a co-
Article 488 considering that redemption
owner or co-heirs as long as he expressly or
entails a necessary expense.
impliedly recognizes the co-ownership
The right of repurchase may be XPN: When there is clear repudiation
exercised by a co-owner with aspect to Requisites
his share alone. While the records show 1) The co-owner has performed unequivocal
that the petitioner redeemed the property in acts of repudiation amounting to an
its entirety, shouldering the expenses ouster of the other co-owners
therefor, that did not make him the owner of the filing by a trustee of an action
all of it. In other words, it did not put to end in court against the trustor to quiet
the existing state of co-ownership. title to the property, or for
recovery of ownership thereof,
While a vendee a retro, under Article 1613 of held in possession by the former,
the Code, “may not be compelled to consent
may constitute an act of
to a partial redemption,” the redemption
by one co-heir or co-owner of the repudiation of the trust reposed on
property in its totality does not vest in him by the latter
him ownership over it. Failure on the part 2) Such positive acts of repudiation have been
of all the co-owners to redeem it entitles the made known to the other co-owners
vendee a retro to retain the property and 3) The evidence thereof is clear and
consolidate title thereto in his name. But the convincing
provision does not give to the redeeming co- 4) He has been in possession through open,
owner the right to the entire property. It continuous, exclusive, notorious
does not provide for a mode of terminating possession of the property for the period
a co-ownership. (Adille v. CA) required by law
The records show, however, that when the Effects of clear repudiation
petitioner purchased the disputed property 1) such co-owner may acquire the entire
on August 30, 1974, any coownership property by virtue of acquisitive
among the brothers and sisters no longer
prescription if his possession meets all the
existed. The period to redeem had expired
more than one year earlier, on July 6, 1973. requirements of the law, and after the
The respondent China Bank expiration of the prescriptive period; or
consolidated its ownership and a new 2) the other co-owners who were deprived of
title was issued in the bank’s name. their share may lose their right to seek a
When the heirs allowed the one-year declaration of the existence of the co-
redemption period to expire without ownership and of their rights
redeeming their parents’ former property thereunder because the same may already
and permitted the consolidation of be barred under the statute of limitations
ownership and the issuance of a new title, (or extinctive prescription)
the co-ownership was extinguished. The
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for damages caused by reason of his negligence or (2) Continuous or intermittent waters of springs and
fraud. (n) brooks running in their natural beds and the beds
themselves;
Article 501 (3) Waters rising continuously or intermittently on
Every co-owner shall, after partition, be liable for lands of public dominion;
defects of title and quality of the portion assigned to (4) Lakes and lagoons formed by Nature on public
each of the other co-owners. (n) lands, and their beds;
(5) Rain waters running through ravines or sand
Legal effects of partition beds, which are also of public dominion;
1) The co-ownership is terminated (6) Subterranean waters on public lands;
2) Each co-owner becomes the absolute and (7) Waters found within the zone of operation of
public works, even if constructed by a contractor;
exclusive owner of the share allotted to him
(8) Waters rising continuously or intermittently on
lands belonging to private persons, to the State, to a
Article 543. Each one of the participants of a thing province, or to a city or a municipality from the
possessed in common shall be deemed to have moment they leave such lands;
exclusively possessed the part which may be (9) The waste waters of fountains, sewers and public
allotted to him upon the division thereof, for the establishments. (407)
entire period during which the co-possession
lasted. Interruption in the possession of the whole
Article 503
or a part of a thing possessed in common shall be to
The following are of private ownership:
the prejudice of all the possessors. However, in case
of civil interruption, the Rules of Court shall apply.
(1) Continuous or intermittent waters rising on lands
(450a)
of private ownership, while running through the
same;
3) It shall not prejudice the rights of third (2) Lakes and lagoons, and their beds, formed by
persons, who shall retain the rights of Nature on such lands;
mortgage, servitude, or any other real rights (3) Subterranean waters found on the same;
belonging to them before the division was (4) Rain waters falling on said lands, as long as they
made. (Art 499) remain within the boundaries;
4) Personal rights pertaining to third persons (5) The beds of flowing waters, continuous or
against the ownership shall also remain in intermittent, formed by rain water, and those of
force. (Art 499) brooks, crossing lands which are not of public
5) there shall be a mutual accounting for benefits dominion.
received and reimbursements for expenses
In every drain or aqueduct, the water, bed, banks and
made. Likewise, each co-owner shall pay for
floodgates shall be considered as an integral part of
damages caused by reason of his negligence or
the land of building for which the waters are
fraud. (Art 500) intended. The owners of lands, through which or
6) They shall reimburse one another for the along the boundaries of which the aqueduct passes,
income and fruits which each one of them may cannot claim ownership over it, or any right to the
have received from any property of the estate, use of its bed or banks, unless the claim is based on
for any useful and necessary expenses made titles of ownership specifying the right or ownership
upon such property, and for any damage claimed. (408)
thereto through malice or neglect. *repealed by RA 1067, Section 6
7) Every co-owner shall be liable for defects of
title and quality of the portion assigned to each SECTION 2
of the other co-owners. (Art 501) The Use of Public Waters
Article 504
TITLE IV The use of public waters is acquired:
SOME SPECIAL PROPERTIES
(1) By administrative concession;
CHAPTER 1 (2) By prescription for ten years.
Waters
The extent of the rights and obligations of the use
shall be that established, in the first case, by the
terms of the concession, and, in the second case, by
SECTION 1 the manner and form in which the waters have been
Ownership of Waters used. (409a)
*repealed by RA 1067, Section 3
Article 502
The following are of public dominion: ARTICLE 3. The underlying principles of this code
are:
(1) Rivers and their natural beds;
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owners, except as provided by the Mining Law. respective interests. Those who by their fault may
(414a) have caused the damage shall be liable for the
expenses. (422)
Article 510
The ownership which the proprietor of a piece of Article 518
land has over the waters rising thereon does not All matters not expressly determined by the
prejudice the rights which the owners of lower provisions of this Chapter shall be governed by the
estates may have legally acquired to the use thereof. Special Law of Waters of August 3, 1866, and by the
(415) Irrigation Law. (425a)
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had taken such possession but delivered it to the unaware that he possesses the thing improperly or
former as lessee of the property. By paying the wrongfully. (435a)
monthly rentals, the petitioner also recognized the
superior right of the respondent to the possession of Article 529
the property as owner thereof. And by accepting the It is presumed that possession continues to be
monthly rentals, the respondent enjoyed the fruits of enjoyed in the same character in which it was
its possession over the subject property. Clearly, the acquired, until the contrary is proved. (436)
respondent is in material possession of the subject
premises. Thus, the trial court’s issuance of a writ Possession in good faith or bad faith
of possession is not only superfluous, but
Is a state of mind
improper under the law. Moreover, as a lessee, the
petitioner was a legitimate possessor of the subject
properties under Article 525 of the Civil Code. Thus, Good faith –
it could not be deprived of its lawful possession by He is deemed a possessor in good faith who is
a mere ex parte motion for a writ of possession. not aware that there exists in his title or mode
of acquisition any flaw which invalidates it (Art
In a nutshell, where a lease agreement, whether 526).
express or implied, is subsequently entered into by Good faith is always presumed, and upon him
the mortgagor and the mortgagee after the who alleges bad faith on the part of a possessor
expiration of the redemption period and the rests the burden of proof. (Art 527)
consolidation of title in the name of the latter, a case Possession acquired in good faith does not lose
for ejectment or unlawful detainer, not a motion
this character except in the case and from the
for a writ of possession, is the proper remedy in
order to evict from the questioned premises a moment facts exist which show that the
mortgagor-turned-lessee. (Bukidnon Doctor’s v. possessor is not unaware that he possesses the
Metrobank) thing improperly or wrongfully. (Art 528)
It is presumed that possession continues to be
Possession may be had in one of two ways: enjoyed in the same character in which it was
possession in the concept of an owner and acquired, until the contrary is proved. (Art 529)
possession of a holder. A possessor in the concept Must be based upon some title or mode of
of an owner may be the owner himself or one acquisition
who claims to be so. On the other hand, one who A person who has no title or mode of
possesses as a mere holder acknowledges in acquisition but whose occupation of the land
another a superior right which he believes to be of another is by reason of the latter’s tolerance
ownership, whether his belief be right or wrong. or permission cannot be considered a
Petitioner herein acknowledges the sale of the
possessor or builder in good faith.
property to Ususan Development Corporation in
1996 and in fact promised to deliver the certificate Must be based on a colorable right
of title to the corporation upon its obtention. Hence, GR: Knowledge that the land was not owned
it cannot be said that her possession since 1996 was constitutes bad faith
under a bona fide claim of ownership. Under the XPN: When builders knew that they were not
law, only he who possesses the property under a the owners of the land but they constructed
bona fide claim of ownership is entitled to improvements on the land of another with the
confirmation of title.” (Carlos v. Republic) consent of the owner
Possessors in the concept of holders are not
Article 526 possessors in good faith
He is deemed a possessor in good faith who is not For one to be considered a possessor in good
aware that there exists in his title or mode of faith, it is not sufficient that there be flaw or
acquisition any flaw which invalidates it. defect in his title. In addition, it is essential that
such flaw or defect in the title must be such
He is deemed a possessor in bad faith who possesses that it will have the effect of invalidating the
in any case contrary to the foregoing.
title. If the flaw or defect does not result in the
Mistake upon a doubtful or difficult question of law invalidation of the title, he is not merely a
may be the basis of good faith. (433a) possessor in good faith but the owner
Mistake of law
Article 527
Good faith is always presumed, and upon him who GR: it is only ignorance or mistake of fact which serves
alleges bad faith on the part of a possessor rests the as basis of good faith but not mistake of law in view of
burden of proof. (434) the principle enshrined in Article 3 of the New Civil
Code
Article 528 XPN: Article 526 par 3 which provides that mistake
Possession acquired in good faith does not lose this upon a doubtful or difficult question of law may be the
character except in the case and from the moment basis of good faith. According to Manresa, so long as
facts exist which show that the possessor is not there is no gross and inexcusable ignorance of the law,
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It is a fact that Marcial Kasilag is not conversant with It must be emphasized, however, that only things
the laws because he is not a lawyer. In accepting the and rights which are susceptible of being
mortgage of the improvements he proceeded on the appropriated may be the object of possession. The
well-grounded belief that he was not violating the following cannot be appropriated and hence, cannot
prohibition regarding the alienation of the land. In be possessed: property of the public dominion,
taking possession thereof and in consenting to common things (res communes) such as sunlight
receive its fruits, he did not know that the possession and air, and things specifically prohibited by law.
and enjoyment of the fruits are attributes of the (Republic v. Cortez)
contract of antichresis and that the latter, as a lien,
was prohibited by Section 116. These considerations CHAPTER 2
again bring the Supreme Court to the conclusion
that, as to the Kasilag, his ignorance of the Acquisition of Possession
provisions of section 116 is excusable and may,
therefore, be the basis of his good faith. The Kasilag
is deemed a possessor in good faith (Kasilag v.
Article 531
Roque) Possession is acquired by the material occupation of
a thing or the exercise of a right, or by the fact that
it is subject to the action of our will, or by the proper
Article 433. Actual possession under claim of acts and legal formalities established for acquiring
ownership raises disputable presumption of such right. (438a)
ownership. The true owner must resort to judicial
process for the recovery of the property. (n)
Modes of acquiring possession
Original mode
Bad faith
1) By material occupation of a thing or the
if there are no other facts from which the
exercise of a right; (involves the constructive delivery
interruption of good faith may be determined, and
an action is filed to recover possession, good faith of tradition brevi manu and tradition constitutum
ceases from the date of receipt of the summons possessorium)
to appear at the trial and if such date does not 2) By subjecting the thing or right to the action of
appear in the record, that of the filing of the answer our will; and (tradition longa manu and tradition
would control. (Tacas v. Tobon) symbolica)
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Proper acts and legal formalities Article 2144. Whoever voluntarily takes charge of the
Any juridical act by which possession is acquired or to agency or management of the business or property
of another, without any power from the latter, is
which the law gives the force of acts of possession.
obliged to continue the same until the
Examples
termination of the affair and its incidents, or to
1) Donation require the person concerned to substitute him,
2) Succession if the owner is in a position to do so. This juridical
3) Execution relation does not arise in either of these instances:
4) Registration of public instruments
5) Inscription of possessory information titles (1) When the property or business is not neglected
or abandoned;
(2) If in fact the manager has been tacitly authorized
by the owner.
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time in two different personalities unless they are occupation. Unless coupled with the element of
co-possessors hostility toward the true owner, occupation and use,
however long, will not confer title by prescription or
In case of conflict involving the question of adverse possession. (Cequeña v. Bolante)
possession as a fact, the following rules of
preference shall govern: CHAPTER 3
1) The present possessor shall be preferred; Effects of Possession
2) If there are two possessors, the one longer
in possession is preferred; (both are still legal Article 539
possessors if possession is not considered interrupted) Every possessor has a right to be respected in his
3) If the dates of possession are the same, possession; and should he be disturbed therein he
the one who presents a title shall be protected in or restored to said possession
4) If all the foregoing conditions are equal, the by the means established by the laws and the Rules
thing shall be placed in judicial deposit of Court.
pending determination of its possession
or ownership through proper proceedings. A possessor deprived of his possession through
forcible entry may within ten days from the filing of
In terms of question of possession the complaint present a motion to secure from the
We concede that despite their dispossession in 1985, competent court, in the action for forcible entry, a
the petitioners did not lose legal possession because writ of preliminary mandatory injunction to restore
possession cannot be acquired through force or him in his possession. The court shall decide the
violence. To all intents and purposes, a possessor, motion within thirty (30) days from the filing
even if physically ousted, is still deemed the legal thereof. (446a)
possessor. Indeed, anyone who can prove prior
possession, regardless of its character, may recover According to the Supreme Court, the phrase “every
such possession. possessor” in the article indicates that all kinds of
possession, from that of the owner to that of a mere
However, possession by the petitioners does not holder, except that which constitutes a crime, should
prevail over that of the respondent. Possession by be respected and protected by the means established
the former before 1985 was not exclusive, as the
and the laws of procedure.
latter also acquired it before 1985. The records show
that the petitioners’ father and brother, as well as the
respondent and her mother were simultaneously in True, by this principle of respect for the possessory
adverse possession of the land. status, a wrongful possessor may at times be upheld by
the courts, but this is only temporary and for one sole
Based on Article 538 of the Civil Code, the and special purpose, namely, the maintenance of public
respondent is the preferred possessor because, order. The protection is only temporary because it is
benefiting from her father’s tax declaration of the intended that as soon as the lawless act of
subject lot since 1926, she has been in possession dispossession has been suppressed, the question of
thereof for a longer period. On the other hand, ownership or of possession de jure is to be settled in
petitioners’ father acquired joint possession only in the proper court and in a proper action. (Manuel v.
1952. CA)
In terms of question of ownership
Actions to recover possession
Ownership of immovable property is acquired by
ordinary prescription through possession for ten 1) Accion interdictal
years. Being the sole heir of her father, respondent 2) Accion publiciana
showed through his tax receipt that she had been in 3) In addition, the law also allows an auxiliary
possession of the land for more than ten years since remedy of the writ of preliminary mandatory
1932. When her father died in 1930, she continued injunction to prevent further acts of
to reside there with her mother. When she got dispossession – only in actions of forcible entry
married, she and her husband engaged in kaingin
inside the disputed lot for their livelihood. Writ of preliminary injunction
Respondent’s possession was not disturbed until Forcible entry Unlawful detainer
1953 when the petitioners’ father claimed the land. Available at the start of the action in both forcible
But by then, her possession, which was in the entry and unlawful detainer
concept of owner, public, peaceful, and Available in the RTC
uninterrupted had already ripened into ownership. Reduced to 5 days instead of 10 under Sec 15 and 20
Furthermore she herself, after her father’s demise, of the 1997 Rules of Civil Procedure
declared and paid realty taxes for the disputed land. issuance of a preliminary writ of mandatory action
Tax receipts and declarations of ownership for can be availed of on appeal to the higher court in
taxation, when coupled with proof of actual case the appeal of the lessee is frivolous or dilatory
possession of the property, can be the basis of a or the appeal of the lessor is prima facie meritorious.
claim for ownership through prescription. It is
settled that ownership cannot be acquired by mere
Article 540
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Only the possession acquired and enjoyed in the agent or a pledgee, not being in the
concept of owner can serve as a title for acquiring concept of an owner, cannot ripen into
dominion. (447) ownership by acquisitive prescription,
unless the juridical relation is first
Article 541 expressly repudiated and such
A possessor in the concept of owner has in his favor repudiation has been
the legal presumption that he possesses with a just communicated
title and he cannot be obliged to show or prove it.
(448a)
The action initiated by Marcelo’s heirs would not
Article 542 prosper on the theory that Flores already has
The possession of real property presumes that of the acquired ownership of the disputed land by ordinary
movables therein, so long as it is not shown or acquisitive prescription.
proved that they should be excluded. (449)
The contract executed by Cruz and the heirs of
Sarmiento includes the encroached property, as
Effects of possession in the concept of an owner
found by the trial court and the appellate court. And
1) It raises a disputable presumption of when Cruz sold the land to Flores, the latter
ownership (Art. 433, NCC). immediately took possession of the same to the
2) It creates a disputable presumption that the exclusion of all others and promptly paid the realty
possessor has just title and he cannot be taxes thereon. From that time on, Flores had been
obliged to show it. (Art. 541, NCC) in possession of the entire area in the concept of an
Article 1129. For the purposes of owner and holding it in that capacity for almost 14
prescription, there is just title when the years before the heirs of Marcelo initiated their
adverse claimant came into possession of the complaint in 1982. The records of the case
property through one of the modes supported the holding of the appellate court that the
recognized by law for the acquisition of requirements for ordinary prescription have been
ownership or other real rights, but the duly met Flores took possession of the controverted
grantor was not the owner or could not property in good faith and with just title because the
transmit any right. (n) said portion was an integral part of the bigger tract
of land which he bought from Cruz. Further, Flores’
Article 434. In an action to recover, the possession was not only in the concept of an owner
property must be identified, and the plaintiff but also public, peaceful and uninterrupted. Hence,
must rely on the strength of his title and the Court found no cogent reasons to reverse the
not on the weakness of the defendant's finding s of the appellate court and thus gave its
claim. (n) affirmance to the assailed decision (Marcelo v. CA)
3) It can ripen into ownership through acquisitive If the co-possession is under claim of ownership, each
prescription (Art. 540, NCC), subject to the of the co-possessors is considered as the possessor of
additional requirements under Article 1118 of the whole and over the whole each may exercise the
the Civil Code right of possession, subject to the similar right of the
Article 1118. Possession has to be in the other co-possessors.
concept of an owner, public, peaceful and
uninterrupted. (1941)
Effects of partition in the event of partition
1) In the event of partition, however, each of the
Mere possession with a juridical title
co-possessors shall be deemed to have
(possession in the concept of a holder),
exclusively possessed the part which may be
such as by usufructuary, trustee, lessee,
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allotted to him for the entire period that the received or fruits received REIMBURSE
state of co-possession lasted. severed by him before THE
2) Any interruption in the possession of the his possession is LEGITIMATE
whole or part of a thing possessed in common legally POSSESSOR
shall be to the prejudice of all the co- interrupted (Art (Art 549)
possessors. 526)
Shall have a
the co-possessors can claim ownership
right to
only of the area through acquisitive 1) PGP –
prescription not occupied by a third production,
party or subject to interruption and gathering,
only this area can be the subject of preservation
partition among the co-possessors (Art 443)
2) Necessary
Article 544 expenses
A possessor in good faith is entitled to the fruits (Art 546)
received before the possession is legally interrupted. Pending Applies only to If the legitimate
fruits natural and possessor is able
Natural and industrial fruits are considered received industrial to recover the
from the time they are gathered or severed. fruits property from a
possessor in bad
Civil fruits are deemed to accrue daily and belong to The possessor faith at a time
the possessor in good faith in that proportion. (451) and the owner when the fruits
shall have a are still pending,
Article 545 right to a part of it is not Article
If at the time the good faith ceases, there should be the net harvest 549 that will
any natural or industrial fruits, the possessor shall and each shall apply but Article
have a right to a part of the expenses of cultivation, divide the 449 of the New
and to a part of the net harvest, both in proportion expenses of Civil Code
to the time of the possession. cultivation,
both in
The charges shall be divided on the same basis by proportion to
the two possessors. the time of their
respective
The owner of the thing may, should he so desire, possessions.
give the possessor in good faith the right to finish
the cultivation and gathering of the growing fruits, The owner of
as an indemnity for his part of the expenses of the thing may,
cultivation and the net proceeds; the possessor in should he so
good faith who for any reason whatever should desire, give the
refuse to accept this concession, shall lose the right possessor in
to be indemnified in any other manner. (452a) good faith the
right to finish
Right of possessors to fruits the cultivation
GR: Fruits belong to the owner pursuant to the law on and gathering of
accesion discreta (Art 441) the growing
fruits, as an
indemnity for
Article 441. To the owner belongs:
his part of the
1) The natural fruits;
expenses of
2) The industrial fruits;
cultivation and
3) The civil fruits. (354)
the net
proceeds; the
XPN: A possessor in good faith is entitled to the possessor in
fruits received before the possession is legally good faith who
interrupted. (Art 544) for any reason
whatever
Since possession in this title is separate from should refuse to
ownership (jus possessionis), different rules apply accept this
for the right of possession of the fruits concession,
shall lose the
Good faith Bad faith right to be
Fruits The possessor NOT indemnified in
already in good faith is ENTITLED; any other
entitled to the SHALL manner
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Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Legal interruption - Whatever may be the cause or may have at the time he enters into possession.
the fact from which it can be deduced that the (445a)
possessor has knowledge of the defects of his title or
mode of acquisition, it must be considered sufficient to Necessary expenses - those made for the
show bad faith. Hence, the interruption of good faith preservation of the thing or those without which
on the part of the possessor need not occur by reason the thing would deteriorate or be lost.
of initiation of legal proceedings.
Land taxes
1) facts from which the interruption of good faith Land taxes (real estate taxes) are not considered
may be determined necessary expenses under the provisions of Article 546
2) date of receipt of the summons to appear at the of the New Civil Code because they are not for the
trial preservation of the thing itself but only for the
3) if such date does not appear in the record, that preservation of its possession. Instead, they are
of the filing of the answer (Tacas v. Tobon) regarded as “charges” which the possessor and owner
must bear in proportion to their respective possessions
When fruits are considered received pursuant to the provision of the second paragraph of
1) natural - from the time they are gathered or Article 545.
severed
2) civil - deemed to accrue daily and belong to the Useful expenses - those incurred to give greater utility
possessor in good faith in that proportion or productivity to the property. These expenses
3) industrial - from the time they are gathered or increase the value of the thing and result in
severed improvements, called useful improvements
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Article 550
The costs of litigation over the property shall be (1) By the abandonment of the thing;
borne by every possessor. (n) (2) By an assignment made to another either by
onerous or gratuitous title;
Article 551 (3) By the destruction or total loss of the thing, or
Improvements caused by nature or time shall always because it goes out of commerce;
inure to the benefit of the person who has succeeded (4) By the possession of another, subject to the
in recovering possession. (456) provisions of article 537, if the new possession has
lasted longer than one year. But the real right of
Article 552 possession is not lost till after the lapse of ten years.
A possessor in good faith shall not be liable for the (460a)
deterioration or loss of the thing possessed, except
in cases in which it is proved that he has acted with Voluntary modes Involuntary modes
fraudulent intent or negligence, after the judicial By the abandonment of By the destruction or
summons. the thing; total loss of the thing, or
because it goes out of
A possessor in bad faith shall be liable for spes recuperandi (hope of commerce;
deterioration or loss in every case, even if caused by recovery or recapture) is
a fortuitous event. (457a) gone and the animus
revertendi (intent to
Article 553 recover) is finally given
One who recovers possession shall not be obliged to up
pay for improvements which have ceased to exist at By an assignment made By the possession of
the time he takes possession of the thing. (458) to another either by another, subject to the
onerous or gratuitous provisions of article 537,
Liability of possessors for loss or deterioration title; if the new possession
Good faith Bad faith has lasted longer than
not liable at all for the GR: liable for any one year. But the real
deterioration or loss of deterioration or loss of right of possession is not
the thing possessed the thing “in every case” lost till after the lapse
even when the same is of ten years.
caused by fortuitous
event Abandonment
That there was no abandonment of the property and
XPN: The possessor that defendant Rey was guilty of the crime of
who is originally in good robbery. He who has a right may renounce it. This
faith but becomes in bad act by which thing is voluntary renounced
faith upon the service of constitutes an abandonment. There is no real
the judicial summons on intention to abandon a property when, as in the case
him shall be liable for of a shipwreck or a fire, things are thrown into the
any deterioration or loss sea upon the highway. Property cannot be
of the thing possessed considered abandoned under the law and the
only if the same is caused possession left vacant for the finder until the spes
by his negligence or recuperandi is gone and the animus revertendi is finally
fraudulent acts given up. (US v. Rey)
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Possession de jure – not lost until after the lapse of ten 2) the possession must be in the concept of
years owner.
if the dispossession lasted for more than one year, the Irreivindicability
proper action to be filed is an accion publiciana since the GR: When a movable property is in the possession of
real right of possession (possession de jure) is not lost one who has acquired it and holds it in good faith, the
until after the lapse of ten (10) years. true owner cannot recover it as a general rule for the
title is valid even against him.
acts which are merely tolerated and those executed
clandestinely and without the knowledge of the XPN: Pursuant to Article 559, if the owner has lost a
possessor or through violence as long as there is a thing, or if he has been unlawfully deprived of it, he has
possessor who objects thereto – only possession de a right to recover it, not only from the finder, thief or
facto is lost robber, but also from third persons who may have
acquired it in good faith from such finder, thief or
Article 556 robber. (even without indemnity)
The possession of movables is not deemed lost so
long as they remain under the control of the XPN of XPN: Public sale - one where there has been
possessor, even though for the time being he may public notice of the sale and in which anybody has a
not know their whereabouts. (461) right to bid and offer to buy (with indemnity)
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
If the possessor acquired the thing at a A usufruct is a real right to enjoy the property of
merchant’s store, or in fairs, or in markets in another temporarily, including the use and fruits
accordance with the Code of Commerce and thereon, with the owner retaining the ownership and
special laws the power to alienate the thing. (Moralidad v.
Where the possessor acquired the thing by sale Pernes)
under statutory power of sale or under the
order of a court of competent jurisdiction
When the possessor is a holder in due course The Court then distinguished a contract of lease with
that of a Usufruct and an Emphyteusis based on its
of a negotiable document of title to goods261
duration. A Usufruct is a right of superior degree to
or where the owner is barred by the principle
that which arises from a lease. It is a real right and
of negotiable instruments includes the jus utendi and jus fruendi. (Eleizegui
Where the owner is barred by reason of his v. Manila Lawn Tennis Club)
own acts or neglect from denying the seller’s
title Characteristics
Where the owner can no longer recover the 1) It is a real right
thing from the possessor by reason of Jus utendi and jus fruendi
prescription 2) Temporary in character
The right is extinguished upon
Article 560 the expiration of the period
Wild animals are possessed only while they are under
one's control; domesticated or tamed animals are Upon death of the usufructuary
considered domestic or tame if they retain the habit 3) Entitles holder to jus utendi and jus fruendi
of returning to the premises of the possessor. (465) Jus utendi – enjoyment of the thing
Jus fruendi – natural, industrial and
Article 561 civil fruits
One who recovers, according to law, possession XPN: When there is agreement
unjustly lost, shall be deemed for all purposes which between the parties
may redound to his benefit, to have enjoyed it
without interruption. (466) Usufruct Commodatum
Has the right to use
Kinds of animals under the Code The usufructuary has the Bailee does not
1) Wild - found in their natural freedom, such as right to use the natural, ordinarily acquire the
wild boars and horses roaming the forest (res industrial and civil fruits right to make use of the
nullus) fruits of the thing loaned
2) Domesticated or tamed - are those which
were formerly wild but which have been 4) Subject property is a property of another
subdued and retained the habit of returning to Jus in re aliena
the premises of the possessor or owner Serves as a limitation upon the owner’s
3) Domestic or tame - born or reared under the right to ownership
control and care of man 5) The usufructuary has an obligation to preserve
its form and substance
GR: While the usufructuary is entitled to enjoy
TITLE VI and use the property in usufruct, he is,
USUFRUCT ordinarily, obliged to preserve its form and
substance.
CHAPTER 1 XPN: Not an indispensable requirement since
Usufruct in General the law or the title constituting the usufruct
may provide otherwise
Article 562 When the law or the title creating the
Usufruct gives a right to enjoy the property of usufruct provides that the usufructuary
another with the obligation of preserving its form is not so obliged;
and substance, unless the title constituting it or the When the usufruct includes things
law otherwise provides. (467) which, without being consumed,
gradually deteriorate through wear and
Usufruct - a real right, of a temporary character, which tear; and (Art 573)
authorizes the holder to enjoy all the utilities which
When the usufruct includes things
result from the normal exploitation of the property of
which cannot be used without being
another in accordance with its destination and which
consumed. (Art 574)
imposes the obligation of restoring at the time
specified either the thing itself or in special cases its
Substance - matter of the thing, the integral elements
equivalent.
that compose it. The absolute prohibition against
destroying or consuming the thing extends to those
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Rights and obligations of the usufructuary They are fruits or income, and therefore, they belong
1) Those provided in the title constituting the to Mary, the usufructuary. Moreover, dividends
usufruct cannot be declared out of the capital. (Bachrach v.
2) In default of such title, or in case it is deficient, the Seifert)
provisions contained in the two following
Chapters shall be observed Products which diminish the capital cannot, for
that reason, be considered fruits, unless a
CHAPTER 2 contrary intent between the parties is clear.
Rights of the Usufructuary
Use - Entitled to enjoy the utilities derived
from the property provided that it be the result
Article 566
The usufructuary shall be entitled to all the natural, of the normal exploitation of the property in
industrial and civil fruits of the property in usufruct. accordance with its purpose or destination.
With respect to hidden treasure which may be found
on the land or tenement, he shall be considered a Other cases
stranger. (471) Hidden treasure (Art 566) - The
usufructuary, not being the landowner, is not
entitled as owner, but is entitled as finder (to
Article 582 one-half of the treasure, as a rule, unless there
The usufructuary of a part of a thing held in is a contrary agreement) if he really is the
common shall exercise all the rights pertaining to the finder. If somebody else is the finder, the
owner thereof with respect to the administration and
usufructuary gets nothing.
the collection of fruits or interest. Should the co-
ownership cease by reason of the division of the
thing held in common, the usufruct of the part Article 567
allotted to the co-owner shall belong to the Natural or industrial fruits growing at the time the
usufructuary. (490) usufruct begins, belong to the usufructuary.
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
considered as subsisting during the agricultural year. 2) deteriorate because of an event or act that
(480) endangers their preservation
o even though there was no fault or
Rights with reference to the thing itself negligence or fraud on the part of the
1) He may personally enjoy the thing (that is, usufructuary, he is still required, to
entitled to possession and fruits) make the NECESSARY OR
GR: Enjoyment may be by himself or through ORDINARY REPAIRS (Art 592)
another o deteriorate because of fraud (dolo
XPN: Contrary has been provided or incidente or fraud amounting to an
stipulated evasion of the obligation to preserve)
2) He may lease the thing to another. or negligence – THE
o This can be done even without the USUFRUCTUARY IS
owner’s consent RESPONSIBLE (Art 573) but may
o The lease ends at the time the usufruct SET OFF AGAINST
ends IMPROVEMENTS (Art 580)
XPN: in the case of rural leases.
o The relation between the owner and Article 574
the usufructuary, does not end just Whenever the usufruct includes things which cannot
because a lease has been made. be used without being consumed, the usufructuary
shall have the right to make use of them under the
Rights with reference to the usufructuary right obligation of paying their appraised value at the
1) He may alienate (sell, donate, bequeath, or termination of the usufruct, if they were appraised
devise) the usufructuary right when delivered. In case they were not appraised, he
XPN: legal usufruct shall have the right to return the same quantity and
quality, or pay their current price at the time the
o usufruct which parents have over the
usufruct ceases. (482)
properties of their unemancipated
children Abnormal usufruct over consumable things/
o usufruct granted by a usufructuary in quasi-usufruct
consideration of his person It has been included however in the title on usufructs
o usufruct acquired through a caucion because in what are called UNIVERSAL
juratoria
USUFRUCTS, both non-consumable and
2) He may pledge or mortgage the usufructuary consumable properties are included. While we seldom
right find usufructs on consumable properties alone, it is a
fact that they indeed exist.
Article 573
Whenever the usufruct includes things which,
Even money may be the object of a usufruct
without being consumed, gradually deteriorate
(Alunan v. Veloso)
through wear and tear, the usufructuary shall have
the right to make use thereof in accordance with the
purpose for which they are intended, and shall not Rules for quasi-usufruct
be obliged to return them at the termination of the 1) The usufructuary (debtor-borrower) can use
usufruct except in their condition at that time; but them (as if he is the owner, with complete right
he shall be obliged to indemnify the owner for any of pledge or alienation)
deterioration they may have suffered by reason of 2) At the end of the usufruct, he must
his fraud or negligence. (481) o pay the APPRAISED VALUE (if
appraised when first delivered); or
Abnormal usufruct on things that deteriorate o If there was no appraisal, return same
Refers to usufruct includes things which, without kind, quality, and quantity or pay the
being consumed, gradually deteriorate through wear price current at the termination of
and tear the usufruct (therefore not at the
original price or value).
Effect of the deterioration
1) Through normal use – THE Article 575
USUFRUCTUARY IS NOT The usufructuary of fruit-bearing trees and shrubs
RESPONSIBLE may make use of the dead trunks, and even of those
o he can return them in the condition cut off or uprooted by accident, under the obligation
they might be in at the termination of to replace them with new plants. (483a)
the usufruct
o no necessity for him to make any Special usufructs
repairs to restore them to their former 1) Usufruct over fruit-bearing trees (Art 575)
condition 2) Periodical pension, income, dividends. (Art
570).
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3) Woodland. (Art 577). In any case the felling or cutting of trees shall be
4) Right of action to recover real property, real made in such manner as not to prejudice the
right, or movable property. (Art 578). preservation of the land.
5) Part of property owned in common. (Art 582).
6) Entire patrimony of a person. (Art 598). In nurseries, the usufructuary may make the
7) On a mortgaged immovable. (Art 600). necessary thinnings in order that the remaining trees
8) On a flock or herd of livestock. (Art 591). may properly grow.
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Usufructuary of a part of common property These obligations are not necessary however before
A co-owner may give the usufruct of his share to the right to the usufruct begins; they are merely
another, even without the consent of the others, unless necessary before physical possession and
personal considerations are present. (Art 493) enjoyment of the property can be had. The owner
may, if he so prefers, until the usufructuary gives
Rights of the usufructuary security or is excused from so doing, retain in his
All the rights of the owner in possession the property in usufruct as
1) administration or management administrator, subject to the obligation to deliver
2) collection of fruits or interest to the usufructuary the net proceeds thereof, after
deducting the sums which may be agreed upon or
judicially allowed him for such administration. (Art
Effect of the partition
586)
1) If there be a partition, the usufructuary
continues to have the usufruct of the part
Requirements for making the inventory
allotted to the co-owner concerned. (Art 582).
1) The owner (or his legitimate representative)
2) The naked owner must respect the usufruct
must be previously notified.
2) The condition of the immovables must be
CHAPTER 3
described.
Obligations of the Usufructuary
3) The movables must be appraised in view of
easy deterioration or loss
The following are the obligations of the
4) No form is required except that when there are
usufructuary and the naked owner
real properties, Art 1358 demands a public
1) Before the usufruct
instrument to affect third parties
2) During the usufruct
5) Expenses are to be borne by the usufructuary,
3) After the usufruct
since the duty is his.
6) The effect of not making an inventory is the
Article 583 same as when the security is not given
The usufructuary, before entering upon the
enjoyment of the property, is obliged:
When inventory is not required
(1) To make, after notice to the owner or his 1) When no one will be injured thereby; (Art 585)
legitimate representative, an inventory of all the as in the case of usufruct over a
property, which shall contain an appraisal of the periodical pension or incorporeal right
movables and a description of the condition of the 2) In case of waiver by the naked owner or the
immovables; law; or
(2) To give security, binding himself to fulfill the 3) or when there is a stipulation in a will or
obligations imposed upon him in accordance with contract.
this Chapter. (491)
Giving of security
Article 584 Purpose: To insure faithful compliance of the duties
The provisions of No. 2 of the preceding article shall
of the usufructuary
not apply to the donor who has reserved the
usufruct of the property donated, or to the parents Form: The law does not specify what kind of security
who are usufructuaries of their children's property, should be given; any kind is allowed.
except when the parents contract a second marriage.
(492a) When security is not required
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
The right of the parents over the fruits and Effects of failure to give security
income of the child’s property shall be limited On the rights of the naked owner
primarily to the child’s support and secondarily 1) He may deliver the property to the
to the collective daily needs of the family. (321a, usufructuary but even if delivery is made, the
323a) naked owner may still later on demand the
needed security;
XPN: 2) The naked owner may choose retention of the
1) when the parents contract a second or property as administrator; or
subsequent marriage subject to the obligation to deliver to
2) Where the market value of the property or the usufructuary the net proceeds
the annual income of the child exceeds thereof, after deducting the sums
P50,000 (Art 225) – not as a usufructuary which may be agreed upon or judicially
but as a guardian allowed him for such administration
3) The naked owner may demand
Art. 225. The father and the mother shall receivership of administration by
jointly exercise legal guardianship over the another of the real property
property of the unemancipated common the movables be sold
child without the necessity of a court o he may want to retain some of
appointment. In case of disagreement, the them for their artistic worth or
father’s decision shall prevail, unless there is sentimental value, in which
a judicial order to the contrary.
case, he may demand their
Where the market value of the property delivery to him provided he
or the annual income of the child (naked owner) gives security
exceeds P50,000, the parent concerned for the payment of legal
shall be required to furnish a bond in such interest on their appraised
amount as the court may determine, but value
not less than ten per centum (10%) of the that the public bonds, instruments of
value of the property or annual income, to credit payable to order or to bearer be
guarantee the performance of the converted into registered certificates or
obligations prescribed for general guardians. deposited in a bank or public
institution; and
xxx that the capital or sums in cash and the
proceeds of the sale of the movable
5) When there is a caucion juratoria (Art 587)
property be invested in safe securities.
This is available only under the
conditions prescribed in the article
The interest on the proceeds of the
sale of the movables and that on public
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
securities and bonds, and the proceeds After the security has been given by the
of the property placed under usufructuary, he shall have a right to all the proceeds
administration, shall belong to the and benefits from the day on which, in accordance
usufructuary. with the title constituting the usufruct, he should
have commenced to receive them. (496)
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
things in usufruct may suffer through the fault or The usufructuary is obliged to make the ordinary
negligence of the person who substitutes him. (498) repairs needed by the thing given in usufruct.
Liability of the usufructuary for acts of the By ordinary repairs are understood such as are
substitute required by the wear and tear due to the natural use
1) The usufructuary is made liable for the acts of of the thing and are indispensable for its
the substitute if there is fault, negligence, or preservation. Should the usufructuary fail to make
even willful deceit. them after demand by the owner, the latter may
make them at the expense of the usufructuary. (500)
while the substitute answers to the
usufructuary, the usufructuary answers
Conditions in order to warrant ordinary repairs
to the naked owner.
1) they are required by normal or natural use
2) Even when there is a sub-usufructuary, it is still
2) They are needed for preservation
the usufructuary who answers to the naked
3) They must have occurred during the usufruct
owner for ordinary repairs, taxes on the fruits,
4) They must have happened with or without the
etc.
fault of the usufructuary
Article 591
Q: Can usufructuary exempt himself from the duty
If the usufruct be constituted on a flock or herd of
to make or pay for the necessary repairs by
livestock, the usufructuary shall be obliged to replace
with the young thereof the animals that die each year renouncing the usufruct?
from natural causes, or are lost due to the rapacity of
beasts of prey. A:
1) If no fault – Yes, but must surrender the fruits
If the animals on which the usufruct is constituted 2) If with fault – No, he would still be liable for
should all perish, without the fault of the damages.
usufructuary, on account of some contagious disease
or any other uncommon event, the usufructuary Remedy if usufructuary does not make the
shall fulfill his obligation by delivering to the owner necessary expenses
the remains which may have been saved from the Should the usufructuary fail to make them after
misfortune. demand by the owner, the latter may make them at the
expense of the usufructuary.
Should the herd or flock perish in part, also by
accident and without the fault of the usufructuary,
the usufruct shall continue on the part saved. Exception
When the usufruct includes things which, without
Should the usufruct be on sterile animals, it shall be being consumed, gradually deteriorate through wear
considered, with respect to its effects, as though and tear without endangering the preservation of the
constituted on fungible things. (499a) thing. (Art 573)
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
It is believed that although Art. 600 speaks only of a 6) By the termination of the right of the person
mortgaged immovable, it can also apply, by analogy, to constituting the usufruct;
a pledged movable, provided that the movable is in the 7) By prescription. (513a)
usufructuary’s possession.
Article 1231. xxx Other causes of extinguishment of
Article 601 obligations, such as annulment, rescission,
The usufructuary shall be obliged to notify the fulfillment of a resolutory condition, and
owner of any act of a third person, of which he may prescription, are governed elsewhere in this Code.
have knowledge, that may be prejudicial to the rights
of ownership, and he shall be liable should he not do Extinguishment
so, for damages, as if they had been caused through GR: Death of the usufructuary ends the usufruct
his own fault. (511) XPNs:
1) In the case of multiple usufructs [here it ends
When notification is required on the death of the last survivor.
1) If a third party commits acts prejudicial to 2) In case there is a period fixed based on the
“the rights of ownership number of years that would elapse before a
2) If urgent repairs are needed (Art 593) third person would reach a certain age
3) If an inventory (at the beginning of the XPN: the period was expressly granted only in
usufruct) is to be made. (Art 583) consideration of the existence of such person,
in which case it ends at the death of said person
When notification is Effect of non- (Art 606)
required notification 3) In case the contrary intention clearly appears
If a third party commits The usufructuary is 4) Death of the naked owner
acts prejudicial to “the liable for damages, as if
rights of ownership (Art they had been caused The utmost period for which a usufruct can endure,
601) through his own fault. if constituted in favor of a natural person is the
If urgent repairs are The usufructuary cannot lifetime of the usufructuary. (Eleizegue v. Lawn
needed (Art 593) even make the Tennis Club)
extraordinary repairs
needed.
Renunciation under the law refers to a voluntary
If an inventory (at the The inventory can go surrender of the rights of the usufructuary, made by
beginning of the on, but the naked owner him with the intent to so surrender them. In this
usufruct) is to be made. may later point out case, there was a claim of ownership and there was
(Art 583) discrepancies and also a forced surrender. Hence, there is no
omissions in the renunciation or waiver. (City of Manila v. Monte
inventory. de Piedad)
Article 602 Other causes for extinguishment
The expenses, costs and liabilities in suits brought
1) Annulment
with regard to the usufruct shall be borne by the
usufructuary. (512) 2) Rescission
3) Mutual withdrawal
Applicability 4) legal causes ending legal usufruct, as when
This article particularly applies only when the attainment of the age of majority extinguishes
usufructuary has LOST the case parental usufruct.
Non-fulfillment of a suspensive
condition does not extinguish usufruct,
CHAPTER 4 for the simple reason that the usufruct
never came into existence
Extinguishment of Usufruct
Article 604
If the thing given in usufruct should be lost only in
Article 603
part, the right shall continue on the remaining part.
Usufruct is extinguished:
(514)
1) By the death of the usufructuary, unless a
contrary intention clearly appears; Total Loss of the Thing in Usufruct
2) By the expiration of the period for which it 1) Total loss ends the usufruct, but not partial
was constituted, or by the fulfillment of any loss, for in the latter case, the usufruct,
resolutory condition provided in the title continues on the remaining part. (Art 604)
creating the usufruct; 2) For total loss of a building (whether or not the
3) By merger of the usufruct and ownership in land is included in the usufruct; and whether or
the same person; not the building has been insured). (Arts. 607-
4) By renunciation of the usufructuary; 608).
5) By the total loss of the thing in usufruct;
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3) For legal loss (as in the case of expropriation). right to occupy the land and to make use of the
(Art 609). materials, being obliged to pay to the usufructuary,
during the continuance of the usufruct, the interest
Article 605 upon the sum equivalent to the value of the land and
Usufruct cannot be constituted in favor of a town, of the materials. (517)
corporation, or association for more than fifty years.
If it has been constituted, and before the expiration Rule when the
of such period the town is abandoned, or the building is destroyed
corporation or association is dissolved, the usufruct Usufruct constituted The usufruct on the
shall be extinguished by reason thereof. (515a both on the building building is ended, but
and the land the usufruct on the land
Usufruct in favor of entities continues.
Under Sec. 11 of the Corporation Code, 50 years are
allowed for the existence of a private corporation. In The usufructuary
the case of towns or municipal corporations, a period prevails in case the
naked owner wants to
longer than 50 years may militate against the public
rebuild
policy which prohibits the perpetual entailment of
Usufruct constituted The usufruct on the
property. only on the building building ends, but the
usufructuary can still
Exception make use of whatever
Since trusts are different from usufructs, Art 605 does materials of the house
not apply to the former such as a trust for the remain.
establishment of a high school with the governor as
trustee and the townspeople the beneficiary. Said trust The naked owner
can continue despite the restrictions in Art. 605. prevails in case the
naked owner wants to
Article 606 rebuild
A usufruct granted for the time that may elapse Usufruct is constituted The usufructuary shall
before a third person attains a certain age, shall on immovable property have a right to make use
subsist for the number of years specified, even if the of which a building of the land and the
third person should die before the period expires, forms part materials.
unless such usufruct has been expressly granted only
in consideration of the existence of such person. Person at fault
(516) Should the destruction be due to the fault of the naked
owner, usufructuary, or a third person, the person at
Example (Paras) fault must indemnify.
A gave B his land in usufruct until C becomes 40 years
old. A constituted the usufruct when C was only 20 Article 608
years old. This means that the usufruct should last for If the usufructuary shares with the owner the
20 years, even if C dies before attaining the age of 40. insurance of the tenement given in usufruct, the
If therefore C dies at the age of 30, the usufruct in B’s former shall, in case of loss, continue in the
favor generally continues. enjoyment of the new building, should one be
constructed, or shall receive the interest on the
insurance indemnity if the owner does not wish to
Exception
rebuild.
The period was expressly granted only in consideration
of the existence of such person, in which case it ends Should the usufructuary have refused to contribute
at the death of said person (Art 606). If in the example to the insurance, the owner insuring the tenement
given, B was made the usufructuary only because he alone, the latter shall receive the full amount of the
had to support C, it follows that the usufruct was insurance indemnity in case of loss, saving always the
expressly constituted only in consideration of the right granted to the usufructuary in the preceding
existence of C. Thus, on C’s death, the usufruct ends article. (518a)
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Article 609
Should the thing in usufruct be expropriated for Intervention by the Court
public use, the owner shall be obliged either to Court will determine whether or not there is
replace it with another thing of the same value and considerable injury to the naked owner.
of similar conditions, or to pay the usufructuary the
legal interest on the amount of the indemnity for the Article 611
whole period of the usufruct. If the owner chooses A usufruct constituted in favor of several persons
the latter alternative, he shall give security for the living at the time of its constitution shall not be
payment of the interest. (519) extinguished until the death of the last survivor.
(521)
Rules in case of expropriation
1) the owner shall be obliged either to replace it Rule in multiple usufruct
with another thing of the same value and of It is the death of the last survivor which, among other
similar condition causes, terminates the usufruct.
2) pay the usufructuary the legal interest on the
amount of the indemnity for the whole period Article 612
of the usufruct. Upon the termination of the usufruct, the thing in
If the owner chooses the latter usufruct shall be delivered to the owner, without
alternative, he shall give security for the prejudice to the right of retention pertaining to the
payment of the interest. usufructuary or his heirs for taxes and extraordinary
expenses which should be reimbursed. After the
Applicable law or rule delivery has been made, the security or mortgage
Only the owner was Art 609 shall be cancelled. (522a)
given indemnity
Both the naked owner Each owns the Rights and Obligations at the Termination of the
and the usufructuary indemnity given to him, Usufruct
were separately given the usufruct being totally On the Part of the Usufructuary
indemnity extinguished 1) must RETURN the property to the naked
Usufructuary alone was He must give it to the owner, but he has the rights
given the indemnity, naked owner and compel 2) to RETAIN the property till he is reimbursed
the latter to return either for TAXES ON THE CAPITAL (which had
the interest or to replace been advanced by him) [Art 597 (2)] and
the property. He may indispensable EXTRAORDINARY
even deduct the interest REPAIRS or EXPENSES (insofar as there has
himself, if the naked
been an increase in the value).
owner fails to object.
3) to remove removable improvements (Art 579)
or
Article 610
4) set them off against damages he has caused.
A usufruct is not extinguished by bad use of the
thing in usufruct; but if the abuse should cause (Art 580).
considerable injury to the owner, the latter may
demand that the thing be delivered to him, binding On the Part of the Naked Owner
himself to pay annually to the usufructuary the net 1) must cancel the security or mortgage (provided
proceeds of the same, after deducting the expenses the usufructuary has complied with all his
and the compensation which may be allowed him for obligations) (Art 612).
its administration. (520) 2) must in case of rural leases, respect leases made
by the usufructuary, till the end of the
Bad use Effect agricultural year. (Art 572).
Does not cause considerable Usufruct continues; naked 3) make reimbursements to the usufructuary in
injury to the naked owner owner cannot demand
administration by himself. the proper cases. (Art 597 and 594)
Causes considerable injury to 1) Usufruct continues
the naked owner
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Ex. Easement of right of way Servitudes are merely accessories to the tenements
2) Apparent or non-apparent of which they form part. Although they are
Apparent - made known and are possessed of a separate juridical existence, as mere
continually kept in view by external accessories, they cannot, however, be alienated from
signs that reveal the use and enjoyment the tenement, or mortgaged separately. It operates as
of the same. a limitation on the title of the owner of the servient
estate, specifi cally, his right to use (jus utendi) (Solid
Example: road and window
Manila v. Bio Hong)
Non-apparent - are those which show
no external indication of their
*There can be no merger in an easement since the
existence.
personality of ownership is vested in two persons.
Example: easement of not building Merger in easements requires full ownership of both
beyond a certain height estates.
3) Positive or negative 2) it is indivisible.
Positive - one which imposes upon the This is but a necessary consequence of the
owner of the servient estate the principle of inseparability of the easement. As
obligation of allowing something to a consequence, even if the servient and
be done on his property (servitutes in dominant estates are divided between two or
patendo) more persons, the easement or the servitude
An easement may not consist, continues to attach to the estates originally
however, in the right to demand that affected.
the servient owner do something Division of the servient estate – each
(servitutes in faciendo). must bear on the part constituting to
“not to interfere” them
Negative - when it prohibits the owner Division of the dominant estate – each
of the servient estate from doing may use the easement in its entirety
something which he could lawfully do
if the easement did not exist (servitutes in SECTION 2
non faciendo) Modes of Acquiring Easements
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
the owner of both, shall be considered, should either Easement of light and view
of them be alienated, as a title in order that the Rules
easement may continue actively and passively, An easement of light and view may either be positive
unless, at the time the ownership of the two estates or negative.
is divided, the contrary should be provided in the
title of conveyance of either of them, or the sign Positive –
aforesaid should be removed before the execution 1) if through a party wall
of the deed. This provision shall also apply in case
2) If through one’s own wall if the window is one
of the division of a thing owned in common by two
or more persons. (541a) a balcony or projection extending over the
adjoining land
Article 625 Negative – if through one’s own wall
Upon the establishment of an easement, all the XPN: Art 624
rights necessary for its use are considered granted.
(542) Article 668. The period of prescription for the
acquisition of an easement of light and view shall be
Article 626 counted:
The owner of the dominant estate cannot use the
easement except for the benefit of the immovable (1) From the time of the opening of the window,
originally contemplated. Neither can he exercise the if it is through a party wall; or
easement in any other manner than that previously (2) From the time of the formal prohibition upon
established. (n) the proprietor of the adjoining land or tenement, if
the window is through a wall on the dominant estate.
Apparent Non-apparent (n)
Continuous By prescription By virtue of
of 10 years and title only Article 669. When the distances in article 67
by virtue of
title Proof of easement
Discontinuous By virtue of By virtue of The presumption is always against the existence of
title only title only an easement for “property is always presumed free
from any and all encumbrances.”
It is not the presence of apparent signs or physical *proof of easement is not covered by the Statute of
indications showing the existence of the easement, Frauds*
but rather the manner of exercise thereof, that 1) Acquired through prescription - necessarily
categorizes such easement into continuous or there is no document evidencing its existence
discontinuous. (Mercader v. Bardillas) and the same may only be established in a
judicial proceeding through
The water facility on a certain lot in a subdivision, preponderance of evidence
which is an encumbrance for the benefit of the 2) Not acquired through prescription – if there
community, is continuous and apparent easement, is no document evidencing the same, or such
because it is used incessantly without human
document is no longer available for whatever
intervention. Since the facility was continuously
used for more than 30 years as the residents’ sole reason, the absence of such proof may be cured
source of water, it was held that an easement of by a deed of recognition by the owner of the
water facility has already been acquired through servient estate
prescription. (Liwag v. Happy Glen Loop) If denied, judicial proceeding
through preponderance of evidence
Acquisition through prescription (Art 621)
The commencement of the ten-year period of Title
prescription will depend on whether the easement is Article 624 of the New Civil Code provides for
positive or negative, as follows: acquisition of easements by title through the operation
1) If the easement is positive, the 10-year period of law.
is counted from the day on which the owner of The term “title” does not mean a
the dominant estate, or the person who may document, it refers to a juridical act
have made use of the easement, commenced
to exercise it upon the servient estate; or The existence of the doors and windows on the
2) If the easement is negative, the 10-year period northeastern side of the aforementioned house, is
is counted from the day on which the owner of equivalent to a title, for the visible and permanent
the dominant estate forbade, by an sign of an easement is the title that characterizes
instrument acknowledged before a notary its existence. (Gargantos v. Tan Yanon)
public, the owner of the servient estate, from
executing an act which would be lawful without Requisites
the easement. 1) that there exists an apparent sign of servitude
between two estates;
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2) that at the time of the establishment of such The owner of the servient estate cannot impair, in
sign, the ownership of the two estates resides any manner whatsoever, the use of the servitude.
in one person;
3) that the sign of the easement be established by Nevertheless, if by reason of the place originally
the owner of both estates because the article assigned, or of the manner established for the use of
will not apply when the easement is established the easement, the same should become very
by a person different from the owner; inconvenient to the owner of the servient estate, or
should prevent him from making any important
4) that the ownership over the two estates is later
works, repairs or improvements thereon, it may be
on divided, either by alienation or partition; changed at his expense, provided he offers another
and place or manner equally convenient and in such a
5) that at the time of division of ownership, way that no injury is caused thereby to the owner of
nothing is stated in the document of alienation the dominant estate or to those who may have a right
or partition contrary to the easement nor is the to the use of the easement. (545)
sign of the easement removed before the
execution of the document. Article 630
The owner of the servient estate retains the
Co-ownership ownership of the portion on which the easement is
Article 624 also applies to a situation where the two established, and may use the same in such a manner
estates were previously under a state of co-ownership as not to affect the exercise of the easement. (n)
but prior to partition there exist an apparent sign of
easement in one of the estates. An easement consists in the limited use and enjoyment
of the property subjected to such encumbrance but
Exception without possession. In other words, it gives the holder
If the contrary should be provided in the title of of the easement an incorporeal interest on the property
conveyance of either of them or the apparent sign but grants no title thereto. Hence, the owner of the
should be removed before the execution of the deed servient estate retains the ownership of the portion on
which the easement is established, and may use the
same in such a manner as not to affect the exercise of
An easement may be acquired by virtue of title
through the easement.
1) a deed of recognition by the owner of the
servient estate DOMINANT ESTATE
2) a final judgment Rights
3) an apparent sign between two estates 1) to exercise the easement and all necessary
(Amor v. Tolentino) rights for its use including accessory easement.
(Art 625)
Article 627 2) to make on the servient estate all works
The owner of the dominant estate may make, at his necessary for the use and preservation of the
own expense, on the servient estate any works servitude, BUT —
necessary for the use and preservation of the this must be at his own expense
servitude, but without altering it or rendering it more he must NOTIFY the servient owner
burdensome.
select convenient time and manner
For this purpose he shall notify the owner of the he must NOT alter the easement NOR
servient estate, and shall choose the most convenient render it MORE BURDENSOME.
time and manner so as to cause the least (Art 627).
inconvenience to the owner of the servient estate. 3) to ask for a MANDATORY INJUNCTION
(543a) to prevent impairment or obstruction in the
exercise of the easement as when the owner of
Article 628 the servient estate obstructs the right of way by
Should there be several dominant estates, the building a wall or fence.
owners of all of them shall be obliged to contribute 4) to RENOUNCE totally (for an easement is
to the expenses referred to in the preceding article, indivisible) the easement if he desires
in proportion to the benefits which each may derive exemption from contribution to expenses. (Art
from the work. Any one who does not wish to
628).
contribute may exempt himself by renouncing the
easement for the benefit of the others.
Obligations
If the owner of the servient estate should make use 1) He cannot alter the easement. (Art 627).
of the easement in any manner whatsoever, he shall 2) He cannot make it more burdensome. (Art.
also be obliged to contribute to the expenses in the 627).
proportion stated, saving an agreement to the Thus he cannot use the easement
contrary. (544) except for movable originally
contemplated. (Art 626).
Article 629
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In the easement of right of way, he the land because they are occupying an area reserved
cannot increase the agreed width of the for public easement purposes. Similar to Pilar
path, nor deposit soil or materials Development Corporation, Dumadag, et. al. have no
outside of the boundaries agreed upon right or title over it precisely because it is public land.
(for these acts would be increasing the Likewise, we repeatedly held that squatters have no
burden), but he may allow OTHERS to possessory rights over the land intruded upon. The
length of time that they may have physically
use the path (this really does NOT
occupied the land is immaterial; they are deemed to
increase the burden) except if the
have entered the same in bad faith, such that the
contrary has been stipulated. nature of their possession is presumed to have
retained the same character throughout their
It is clear that the easement was established for the occupancy. (Pilar vs. Dumadag)
benefit of all producers and of the corporation as it is
the intent of the milling contract. Since the easement is 3) to change the location of a very
a voluntary, apparent, continuous easement of way in inconvenient easement provided that an equally
favor of the North Negros Sugar, it is contrary to the convenient substitute is made, without injury to
nature of the contract that it is only limited to canes the dominant estate. (Art 629, par 2).
produced by the servient estates since it is a well settled
rule that things serve their owner by reason of Obligations
ownership and not by reason of easement. 1) He cannot impair the use of the easement. (Art
(Valderrama v. North Negros Sugar Co.) 629, par. 1).
2) He must contribute to the expenses in case he
3) If there are several dominant estates, each must uses the easement, unless there is a contrary
contribute to necessary repairs and expenses in stipulation. (Art 628, par. 2).
proportion to the BENEFITS received by each 3) In case of impairment, to restore conditions to
estate (and not in proportion to the VALUE of the status quo at his expense plus damages. (In
each estate). (In the absence of proof, we should case of obstruction, as when he fences the
presume the benefi ts to be equal). original right of way, and offers an
4) Regarding the repairs, it must be inconvenient substitute way, which is farther
this must be at his own expense and requires turning at a sharp angle, he may
he must NOTIFY the servient owner be restrained by injunction).
select convenient time and manner (Art 4) To pay for the expenses incurred for the
627) change of location or form of the easement (in
the proper case). (Art 629, par. 2)
SERVIENT ESTATE
The owner of the dominant estate cannot violate
Rights any of the following prescribed restrictions on
1) to retain ownership and possession of the its rights on the servient estate, to wit:
portion of his land affected by the easement 1) it can only exercise rights necessary for the
(Art 630) even if indemnity for the right is use of the easement;
given (as in the case of the easement of right of 2) it cannot use the easement except for the
way) (Art 649), unless the contrary has been benefit of the immovable originally
stipulated. contemplated;
3) it cannot exercise the easement in any other
2) to make USE of the easement, unless deprived
manner than that previously established;
by stipulation provided that the exercise of the 4) it cannot construct anything on it which is
easement is not adversely affected (Art. 630) not necessary for the use and preservation of
and provided further that he contributes to the the easement;
expenses in proportion to BENEFITS 5) it cannot alter or make the easement more
received, unless there is a contrary stipulation. burdensome;
(Art 628, par 2) 6) it must notify the servient estate owner of its
intention to make necessary works on the
What is involved here is an undue interference on servient estate;
the property rights of a landowner to build a 7) it should choose the most convenient time
concrete wall on his own property. It is a simple case and manner to build said works so as to
of a neighbor, petitioner Aneco, seeking to restrain cause the least convenience to the owner
a landowner, respondent Landex, from fencing his of the servient estate. Any violation of the
own land. (Aneco Realty v. Landex) above constitutes impairment of the
easement.
Pilar Development Corporation’s right of ownership (Goldcrest Realty v. Cypress Garden)
and possession has been limited by law with respect
to the 3-meter strip/zone along the banks of SECTION 4
Mahabang Ilog Creek. Dumadag, et. al. also don’t Modes of Extinguishment of Easements
have a better right to possess the subject portion of
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
SECTION 1
General Provisions Estates adjoining the banks of navigable or floatable
rivers are, furthermore, subject to the easement of
Article 634 towpath for the exclusive service of river navigation
Easements imposed by law have for their object and floatage.
either public use or the interest of private persons.
(549) If it be necessary for such purpose to occupy lands
of private ownership, the proper indemnity shall first
Article 635 be paid. (553a)
All matters concerning easements established for
public or communal use shall be governed by the Article 639
special laws and regulations relating thereto, and, in Whenever for the diversion or taking of water from
the absence thereof, by the provisions of this Title. a river or brook, or for the use of any other
(550) continuous or discontinuous stream, it should be
necessary to build a dam, and the person who is to
Article 636 construct it is not the owner of the banks, or lands
Easements established by law in the interest of which must support it, he may establish the
private persons or for private use shall be governed easement of abutment of a dam, after payment of
by the provisions of this Title, without prejudice to the proper indemnity. (554)
the provisions of general or local laws and
ordinances for the general welfare. Article 640
Compulsory easements for drawing water or for
These easements may be modified by agreement of watering animals can be imposed only for reasons of
the interested parties, whenever the law does not public use in favor of a town or village, after
prohibit it or no injury is suffered by a third person. payment of the proper indemnity. (555)
(551a)
Article 641
Legal easements - are those which can be enforced Easements for drawing water and for watering
by force of law and, therefore, may be established even animals carry with them the obligation of the owners
of the servient estates to allow passage to persons
against the will of the owner of the servient estate.
and animals to the place where such easements are
Public legal easement - governed by to be used, and the indemnity shall include this
the special laws and regulations relating service. (556)
thereto, and, in the absence thereof, by
the provisions of this Title Article 642
Private legal easement - governed by Any person who may wish to use upon his own
the provisions of this Title, without estate any water of which he can dispose shall have
prejudice to the provisions of general the right to make it flow through the intervening
or local laws and ordinances for the estates, with the obligation to indemnify their
general welfare. owners, as well as the owners of the lower estates
1) Local laws upon which the waters may filter or descend. (557)
2) Provisions of this title
Article 643
3) Agreement of the parties
One desiring to make use of the right granted in the
preceding article is obliged:
SECTION 2
Easements Relating to Waters (1) To prove that he can dispose of the water and
that it is sufficient for the use for which it is
Article 637 intended;
Lower estates are obliged to receive the waters which (2) To show that the proposed right of way is the
naturally and without the intervention of man most convenient and the least onerous to third
descend from the higher estates, as well as the stones persons;
or earth which they carry with them. (3) To indemnify the owner of the servient estate in
the manner determined by the laws and regulations.
The owner of the lower estate cannot construct (558)
works which will impede this easement; neither can
the owner of the higher estate make works which Article 644
will increase the burden. (552) The easement of aqueduct for private interest
cannot be imposed on buildings, courtyards,
Article 638 annexes, or outhouses, or on orchards or gardens
The banks of rivers and streams, even in case they already existing. (559)
are of private ownership, are subject throughout
their entire length and within a zone of three meters Article 645
along their margins, to the easement of public use in The easement of aqueduct does not prevent the
the general interest of navigation, floatage, fishing owner of the servient estate from closing or fencing
and salvage. it, or from building over the aqueduct in such
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manner as not to cause the latter any damage, or exercise of such right, he
render necessary repairs and cleanings impossible. is obliged:
(560) 1) to select the routes
and methods of drainage
Article 646 that will cause the
For legal purposes, the easement of aqueduct shall minimum damage to the
be considered as continuous and apparent, even lower lands; and (2) to
though the flow of the water may not be continuous, pay just compensation to
or its use depends upon the needs of the dominant the owner of the lower
estate, or upon a schedule of alternate days or hours. estate
(561)
Easement for public use (Art. 638, NCC; Art.
Article 647 51, Water Code);
One who for the purpose of irrigating or improving ARTICLE 51. The banks of rivers and
his estate, has to construct a stop lock or sluice gate streams and the shores of the seas and lakes
in the bed of the stream from which the water is to throughout their entire length and within a
be taken, may demand that the owners of the banks zone of three (3) meters in urban areas,
permit its construction, after payment of damages, twenty (20) meters in agricultural areas and
including those caused by the new easement to such forty (40) meters in forest areas, along their
owners and to the other irrigators. (562) margins, are subject to the easement of
public use in the interest of recreation,
Article 648 navigation, floatage, fishing and salvage. No
The establishment, extent, form and conditions of person shall be allowed to stay in this zone
the servitudes of waters, to which this section refers, longer than what is necessary for recreation,
shall be governed by the special laws relating thereto navigation, floatage, fishing or salvage or to
insofar as no provision therefor is made in this Code. build structures of any kind.
(563a)
Easement of public use - The banks or rivers and
Easement relating to waters streams and the shores of the seas and lakes
throughout their entire length and within a zone of
Easement of drainage of waters (Art. 637, o three (3) meters in urban areas,
NCC; Art. 50, Water Code) o twenty (20) meters in agricultural
ARTICLE 50. Lower estates are obliged to areas and
receive the waters which naturally and o forty (40) meters in forest areas,
without the intervention of man flow from
along their margins, are subject to the easement of
the higher estates, as well as the stone or
earth which they carry with them. public use in the interest of
1. recreation,
The owner of the lower estate can not 2. navigation,
construct works which will impede this 3. floatage,
natural flow, unless he provides an 4. fishing and
alternative method of drainage; neither 5. salvage.
can the owner of the higher estate make Easement for drawing waters (Arts. 640-641,
works which will increase this natural flow. NCC)
- in favor of a town or village, after payment of
Easement on drainage of waters - An easement the proper indemnity
exists when, based on the physical condition of two - this kind of easement, upon its establishment,
estates, waters descend naturally and without the carries with it the easement of right of way.
intervention of man from a higher estate (the dominant Easement of abutment of dam (Art. 639, NCC)
estate) to a lower estate (the servient estate). - Requisites
a) necessary to build a dam for the
Higher estate Lower estate purpose of diverting or taking waters
may not construct works may not construct from a river or brook, or for the use of
which will increase the works, such as dikes, any other continuous or discontinuous
burden or increase the walls or hedges, which stream,
natural flow will block or impede the
b) the person who is to construct it is not
flow of waters
XPN: if he provide an the owner of the banks or of the land
alternative method of on which must support it
drainage c) upon payment of the proper indemnity
Right to resort to to the owner of the affected estates.
artificial means for the Easement of aqueduct (Arts. 642-646, NCC)
purpose of draining Aqueduct – flowing water through intervening
waters from higher to estates
lower estates but in the
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(1) That he who wants to establish the Should this easement be established in such a
easement of aqueduct must be able to manner that its use may be continuous for all the
prove that he can dispose of the water; needs of the dominant estate, establishing a
(2) He must also prove that it is sufficient for permanent passage, the indemnity shall consist of
the use for which it is intended; the value of the land occupied and the amount of
(3) The proposed right of way is the most the damage caused to the servient estate.
convenient and the least onerous to
In case the right of way is limited to the necessary
third persons affected; and
passage for the cultivation of the estate surrounded
(4) He must indemnify the owners of the by others and for the gathering of its crops
servient estates (intervening estates), as through the servient estate without a permanent
well as the owners of the lower estates way, the indemnity shall consist in the payment of
upon which the waters may filter or the damage caused by such encumbrance.
descend
This easement is not compulsory if the isolation of
ARTICLE 47. When the use, conveyance or storage the immovable is due to the proprietor's own acts.
of waters results in damage to another, the person (564a)
responsible for the damage shall pay compensation.
Article 650
Exceptions The easement of right of way shall be established
If established for private interest, it may not be at the point least prejudicial to the servient
imposed on estate, and, insofar as consistent with this rule,
where the distance from the dominant estate to a
Buildings
public highway may be the shortest. (565)
Courtyards
Annexes Article 651
Outhouse The width of the easement of right of way shall be
Orchards that which is sufficient for the needs of the
Gardens dominant estate, and may accordingly be
changed from time to time. (566a)
Right of the owners of the servient estate
GR: closing or fencing it, or from building over the Article 652
aqueduct Whenever a piece of land acquired by sale, exchange
Provided, in such manner as not to cause the latter any or partition, is surrounded by other estates of the
vendor, exchanger, or co-owner, he shall be
damage, or render necessary repairs and cleanings
obliged to grant a right of way without
impossible indemnity.
ARTICLE 49. Any person having an easement for In case of a simple donation, the donor shall be
an aqueduct may enter upon the servient land for the indemnified by the donee for the establishment
purpose of cleaning, repairing or replacing the of the right of way. (567a)
aqueduct or the removal of obstructions therefrom.
Article 653
Nature of the easement In the case of the preceding article, if it is the land
For legal purposes, the easement of aqueduct shall be of the grantor that becomes isolated, he may
considered as continuous and apparent, even though demand a right of way after paying a indemnity.
the flow of the water may not be continuous, or its use However, the donor shall not be liable for
depends upon the needs of the dominant estate, or indemnity. (n)
upon a schedule of alternate days or hours. Hence, an
easement of aqueduct may be acquired either by title or Article 654
If the right of way is permanent, the necessary
by prescription.
repairs shall be made by the owner of the
dominant estate. A proportionate share of the
SECTION 3 taxes shall be reimbursed by said owner to the
Easement of Right of Way proprietor of the servient estate. (n)
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
The same rule shall be applied in case a new road is (1) That the dominant estate is surrounded by
opened giving access to the isolated estate. other immovables and has no adequate
outlet to a public highway (Art. 649, par.
In both cases, the public highway must 1);
substantially meet the needs of the dominant (2) After payment of proper indemnity (Art.
estate in order that the easement may be 649, par. 1);
extinguished. (568a) (3) That the isolation was not due to acts of the
proprietor of the dominant estate (Art.
Article 656 649, par. 4); and
If it be indispensable for the construction, repair, (4) That the right of way claimed is at the point
improvement, alteration or beautification of a least prejudicial to the servient estate;
building, to carry materials through the estate of and insofar as consistent with this rule,
another, or to raise therein scaffolding or other where the distance from the dominant estate
objects necessary for the work, the owner of such to a public highway may be the shortest.
estate shall be obliged to permit the act, after (Art. 650)
receiving payment of the proper indemnity for the (Bacolod-Murcia Milling Co., Inc. v. Capital
damage caused him. (569a) Subdivision)
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
The law makes it amply clear that an owner cannot, The vendor, exchanger or co-owner is the one isolated
by his own act, isolate his property from a public 5) sale, exchange or partition (Art 653)
highway and then claim an easement of way through 6) simple donation (Art 653)
an adjacent estate.
Sale, exchange Simple
Thus, when the claimant of a right of way had or partition donation
already been granted an adequate access to the Surrounded by The vendor, Donor shall be
public highway through another estate but the same other estates of exchanger or co- indemnified by
was no longer is use because he himself had closed the vendor, owner shall be the donee for the
it off by erecting a stonewall on his lot at the point exchanger, or obliged to grant a establishment of
where such passageway began, he cannot demand co-owner right of way the right of way
for a compulsory right of way in an alternative without
location. (Francisco v. IAC) indemnity
The vendor, Grantor may Donor shall not
exchanger or demand a right be liable for
When a person already established an easement in co-owner is the of way after indemnity.
favor of his tenement, he cannot demand another, one isolated payment of
even if the first passage has defects which make indemnity.
passage impossible, if those defects can be
eliminated by proper repairs. The fact that a voluntary agreement upon the
extent of compensation cannot be reached by the
The Court refused to impose a right of way over the parties involved, is not an impediment to the
petitioner’s property although private respondents’ establishment of such easement. Precisely, the action
alternative rice lands and rice paddies belonging to of the dominant estate against the servient estate
different persons, not to mention that said passage should include a prayer for the fixing of the
is impassable during the rainy season. (Floro v. amount which may be due from the former to
Llenado) the latter. (Talisay-Silay Milling v. CFI)
At the point least prejudicial Settled is the rule in statutory construction that
RULE: IF THERE IS CONFLICT, THE LEAST 'when the law is clear, the function of the courts is
PREJUDICIAL CRITERION MUST PREVAIL simple application.' Thus, to award indemnity
OVER THE SHORTEST DISTANCE using factors different from [those] given by the
CRITERION law is a complete disregard of these clear
As between a right of way that would demolish a statutory provisions and is evidently arbitrary.
store of strong materials to provide egress to a public This the Court cannot countenance. The Civil Code
highway, and another right of way which, although has clearly laid down the parameters and we cannot
longer, will only require an avocado tree to be depart from them. Verba legis non est recedendum.
cut down, the second alternative should be (Woodridge case, cited in De Guzman v.
preferred. (Quimen v. CA) Filinvest)
As between a right of way that would destroy the In easement of right of way, there is no
wire fence and a house and another right of way alienation of the land occupied. Payment of the
which although longer will only traverse two vacant value of the land for permanent use of the
lots, the second alternative should be preferred. easement does not mean an alienation of the
(Calimoso v. Roullo) land occupied. In fact under the law and unlike in
purchase of a property, should the right of way no
Payment of indemnity longer be necessary because the owner of the
dominant estate has joined it to another abutting on
RULES:
a public highway, and the servient estate demands
1) Permanent passage (continuous for all the that the easement be extinguished, the value of the
needs of the dominant estate) – property received by the servient estate by way of
value of the land occupied + indemnity shall be returned in full to the dominant
amount of the damage caused to the estate. This only reinforces the concept that the
servient estate. (Art 649) payment of indemnity is merely for the use of
2) Necessary passage for the cultivation of the the right of way and not for its alienation. (De
estate surrounded by others and for the Guzman v. Filinvest)
gathering of its crops
Width of the easement [Art 651]
payment of the damage caused by
1) that which is sufficient for the needs of the
such encumbrance. (Art 649)
dominant estate
2) may accordingly be changed from time to time
OTHER RULES:
Surrounded by other estates of the vendor, exchanger, or co-owner
When petitioner started out as a plant nursery
3) sale, exchange or partition (Art 652)
operator, he and his family could easily make do with
4) simple donation (Art 652)
a few pushcarts to tow the plants to the national
highway. But the business grew and with it the need
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
for the use of modern means of conveyance or 1) In both cases, the public highway must
transport. Manual hauling of plants and garden soil substantially meet the needs of the
and use of pushcarts have become extremely dominant estate in order that the easement
cumbersome and physically taxing. To force may be extinguished.
petitioner to leave his jeepney in the highway, 2) It cannot apply to voluntary easements. A
exposed to the elements and to the risk of theft voluntary easement of right of way, like any
simply because it could not pass through the other contract, could be extinguished only by
improvised pathway, is sheer pigheadedness on the
mutual agreement or by renunciation of the
part of the servient estate and can only be counter-
productive for all the people concerned. Petitioner owner of the dominant estate.
should not be denied a passageway wide 3) The extinguishment of the right of way in the
enough to accommodate his jeepney since that foregoing manner does not take place ipso
is a reasonable and necessary aspect of the plant jure. The owner of the servient estate must ask
nursery business. (Encarnacion c. CA) for the release of his estate from the servitude
upon the return of the indemnity he received.
Who may demand compulsory right of way [Art
649] Temporary easement of right of way [Art 656]
Owner If it be indispensable for the construction, repair,
Any person who by virtue of a real right may improvement, alteration or beautification of a building,
cultivate or use any immovable to carry materials through the estate of another, or to
Usufructuary Lessee raise therein scaffolding or other objects necessary for
May demand a right Cannot demand a the work, the owner of such estate shall be obliged to
of way right of way permit the act, after receiving payment of the proper
indemnity for the damage caused him.
We hasten to add that under the above-quoted
Article 649 of the Civil Code, it is the owner, or any “Indispensable” in this instance is not to be construed
person who by virtue of a real right may cultivate literally. Great inconvenience is sufficient. (Preysler Jr
or use any immovable surrounded by other v. CA)
immovable pertaining to other persons, who is
entitled to demand a right of way through the Article 656 requires proof of indispensability and
neighboring estates. In this case, petitioners fell receipt of payment of the proper indemnity for the
short of proving that they are the owners of the
damage caused by the owner of the dominant estate
supposed dominant estate. Nor were they able to
prove that they possess a real right to use such before the owner of the servient estate can be
property. The petitioners claim to have acquired compelled to grant a temporary easement of right of
their property, denominated as Lot 1-B-2, from way. (AMA Land v. Wack Wack Residence)
Concepcion de la Peña, mother of defendant
Alfredo de la Cruz, who owns Lot 1-B-3, an adjacent SECTION 4
lot. However, as earlier noted, the trial court found Easement of Party Wall
that the title to both lots is still registered in the name
of Concepcion de la Peña under TCT No. RT-56958 Article 658
(100547). Neither were petitioners able to produce The easement of party wall shall be governed by the
the Deed of Sale evidencing their alleged purchase provisions of this Title, by the local ordinances
of the property from de la Peña. Hence, by the bulk and customs insofar as they do not conflict with the
of evidence, de la Peña, not petitioners, is the real same, and by the rules of co-ownership. (571a)
party-in-interest to claim a right of way although, as
explained earlier, any action to demand a right of Article 659
way from de la Peña’s part will not lie inasmuch as The existence of an easement of party wall is
by her own acts of building houses in the area presumed, unless there is a title, or exterior sign,
allotted for a pathway in her property, she had or proof to the contrary:
caused the isolation of her property from any access
to a public (1) In dividing walls of adjoining buildings up to
highway. (Dela Cruz v. Ramiscal) the point of common elevation;
(2) In dividing walls of gardens or yards situated
Extinguishment of right of way [Art 655] in cities, towns, or in rural communities;
1) If the right of way granted to a surrounded (3) In fences, walls and live hedges dividing rural
estate ceases to be necessary because its owner lands. (572)
has joined it to another abutting on a public
road Article 660
2) In case a new road is opened giving access to It is understood that there is an exterior sign,
the isolated estate. contrary to the easement of party wall:
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
(2) Whenever the dividing wall is, on one side, The expenses of maintaining the wall in the part
straight and plumb on all its facement, and on the newly raised or deepened at its foundation shall
other, it has similar conditions on the upper part, but also be paid for by him; and, in addition, the
the lower part slants or projects outward; indemnity for the increased expenses which may
(3) Whenever the entire wall is built within the be necessary for the preservation of the party wall by
boundaries of one of the estates; reason of the greater height or depth which has
(4) Whenever the dividing wall bears the burden of been given it.
the binding beams, floors and roof frame of one
of the buildings, but not those of the others; If the party wall cannot bear the increased height,
(5) Whenever the dividing wall between courtyards, the owner desiring to raise it shall be obliged to
gardens, and tenements is constructed in such a way reconstruct it at his own expense and, if for this
that the coping sheds the water upon only one of purpose it be necessary to make it thicker, he shall
the estates; give the space required from his own land. (577)
(6) Whenever the dividing wall, being built of
masonry, has stepping stones, which at certain Article 665
intervals project from the surface on one side only, The other owners who have not contributed in
but not on the other; giving increased height, depth or thickness to the
(7) Whenever lands inclosed by fences or live wall may, nevertheless, acquire the right of part-
hedges adjoin others which are not inclosed. ownership therein, by paying proportionally the
value of the work at the time of the acquisition
In all these cases, the ownership of the walls, fences and of the land used for its increased thickness.
or hedges shall be deemed to belong exclusively (578a)
to the owner of the property or tenement which
has in its favor the presumption based on any one of Article 666
these signs. (573) Every part-owner of a party wall may use it in
proportion to the right he may have in the co-
Article 661 ownership, without interfering with the common
Ditches or drains opened between two estates are and respective uses by the other co-owners. (579a)
also presumed as common to both, if there is no
title or sign showing the contrary. Nature of a party wall
While our Civil Code recognizes the existence of co-
There is a sign contrary to the part-ownership ownership in a party wall, it is considered more of a
whenever the earth or dirt removed to open the servitude.
ditch or to clean it is only on one side thereof, in
which case the ownership of the ditch shall belong
Party wall as a Co-owned property
exclusively to the owner of the land having this
exterior sign in its favor. (574) servitude
No such juridical None of the co-owners
Article 662 limitation upon the may do anything on the
The cost of repairs and construction of party walls action of the owner; co-owned property for
and the maintenance of fences, live hedges, made in the works for his own exclusive benefit
ditches, and drains owned in common, shall be the exclusive benefit of because he would be
borne by all the owners of the lands or tenements the person making them impairing the rights of
having the party wall in their favor, in proportion others
to the right of each.
Article 663
If the owner of a building, supported by a party
wall desires to demolish the building, he may also
renounce his part-ownership of the wall, but the
cost of all repairs and work necessary to prevent
any damage which the demolition may cause to the
party wall, on this occasion only, shall be borne by
him. (576)
Article 664
Every owner may increase the height of the party
wall, doing so at his own expense and paying for
any damage which may be caused by the work, even
though such damage be temporary.
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Images from Microsoft PowerPoint - Easements and PD 1096 ownership of the ditch shall belong
(wordpress.com)
exclusively to the owner of the land
having this exterior sign in its favor.
Governing laws [Art 658]
3) there is proof to the contrary
1) provisions of this Title,
2) by the local ordinances and
Rights and obligations of each co-owner of party
3) customs insofar as they do not conflict with the
wall
same, and
1) right to use (Art 666)
4) by the rules of co-ownership
2) right to increase height of party wall (Art 664)
the same shall be done at his expense;
Presumption of existence of easement of party
he shall pay for any damage which
wall
may be caused by his work, even
The law presumes the existence of an easement of
though such damage may be
party wall in the following cases:
temporary;
1) In dividing walls of adjoining buildings up to
the point of common elevation; if the party wall cannot bear the
2) In dividing walls of gardens or yards situated in increased height, the owner desiring to
cities, towns or rural communities; and raise it shall be obliged to reconstruct
3) In fences, walls and live hedges dividing rural it at his own expense, and, if for this
lands. purpose it be necessary to make it
thicker, he shall give the space required
Exceptions from his own land.
1) there is title to the contrary;
2) there is an exterior sign to the contrary; and
As to the point where the original
wall was extended – co-
Whenever in the dividing wall of
ownership is maintained
buildings there is a window or opening;
Whenever the dividing wall is, on one As to the additional height - shall
side, straight and plumb on all its be exclusively owned by the part-
facement, and on the other, it has owner at whose instance the party
similar conditions on the upper part, wall was raised
but the lower part slants or projects
outward; 3) obligation to the repairs and maintenance
Whenever the entire wall is built Shall be borne by all the owners of the lands or
within the boundaries of one of the tenements having the party wall in their favor,
estates; in proportion to the right of each.
Whenever the dividing wall bears the
burden of the binding beams, floors Exemption to obligation
and roof frame of one of the buildings, GR: any owner may exempt himself from
but not those of the others; contributing to this charge by renouncing his
Whenever the dividing wall between part-ownership
courtyards, gardens, and tenements is XPN: when the party wall supports a building
constructed in such a way that the belonging to him. In case where the party wall
coping sheds the water upon only one supports a building, the owner of such building
of the estates; may renounce his part ownership of the party
Whenever the dividing wall, being built wall if he will demolish the building. But the
of masonry, has stepping stones, which cost of all repairs and work necessary to
at certain intervals project from the prevent any damage which the demolition may
surface on one side only, but not on the cause to the party wall on this occasion shall be
other; borne by him.
Whenever lands inclosed by fences or
live hedges adjoin others which are not SECTION 5
inclosed. Easement of Light and View
With respect to ditches or drains
opened between two estates, there is Article 667
also a presumption that they are No part-owner may, without the consent of the
common to both estates unless there is others, open through the party wall any window or
a sign or title to the contrary. There is aperture of any kind. (580)
a sign contrary to the part-ownership
Article 668
whenever the earth or dirt removed to
The period of prescription for the acquisition of an
open the ditch or to clean it is only on easement of light and view shall be counted:
one side thereof, in which case the
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Article 669
When the distances in article 670 are not observed,
the owner of a wall which is not party wall,
adjoining a tenement or piece of land belonging to
another, can make in it openings to admit light at Easements of light and view
the height of the ceiling joints or immediately Refers to an easement whereby the dominant estate
under the ceiling, and of the size of thirty enjoys the right to have free access to light, a little air,
centimeters square, and, in every case, with an iron and a view overlooking the adjoining estate.
grating imbedded in the wall and with a wire screen.
Two components
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made 1) Easement of light (jus luminum) – has the
can close them should he acquire part- purpose of admitting light and a little air, as in
ownership thereof, if there be no stipulation to the case of small windows, not more than 30
the contrary. centimeters square, at the height of the ceiling
joists or immediately under the ceiling.
He can also obstruct them by constructing a building 2) Easement of view (servidumbre
on his land or by raising a wall thereon contiguous prospectus) – has the principal purpose of
to that having such openings, unless an easement of affording view, as in the case of full or regular
light has been acquired. (581a) windows overlooking the adjoining estate.
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
2) The owner of the tenement or property control over such water and he shall also have the right
adjoining the wall in which the openings are to dispose of the same. The owner of the land where
made can close them should he acquire part- the rain waters fall may use the same even without
ownership thereof, if there be no stipulation securing a permit from the National Water Resources
to the contrary. (Art 669) – MAY BE Council but only for domestic purposes.
MADE EVEN WITHOUT VIOLATION
3) Obstruct them by constructing a building on Requisites for legal easement of drainage
his land or by raising a wall thereon contiguous An easement of drainage may be demanded subject to
to that having such openings, unless an compliance with the following requisites:
easement of light has been acquired. (Art 669) 1) The yard or court of a house must be
- MAY BE MADE EVEN WITHOUT surrounded by other houses (“the dominant
VIOLATION AND IF HE DID NOT estate”) and it is not possible to give an
ACQUIRE PART-OWNERSHIP outlet through the house itself to the rain
collected therefrom;
SECTION 6 2) The outlet to the water must be at the point
Drainage of Buildings of the contiguous lands or tenements (“the
servient estate”) where its egress may be
Article 674 easiest;
The owner of a building shall be obliged to construct 3) The conduit for the drainage must be
its roof or covering in such manner that the rain established in such manner as to cause the
water shall fall on his own land or on a street or least damage to the servient estate; and
public place, and not on the land of his 4) Proper indemnity must be paid to the owner
neighbor, even though the adjacent land may of the servient estate.
belong to two or more persons, one of whom is the
owner of the roof. Even if it should fall on his own
land, the owner shall be obliged to collect the water SECTION 7
in such a way as not to cause damage to the adjacent Intermediate Distances and Works for Certain
land or tenement. (586a) Constructions and Plantings
Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Every landowner shall have the right to demand that Fruits naturally falling
trees hereafter planted at a shorter distance from GR: Fruits belong to the owner of the trees (Art 441)
his land or tenement be uprooted. XPN: Fruits which are naturally falling upon adjacent
land belong to the owner of the said land.
The provisions of this article also apply to trees
which have grown spontaneously. (591a) SECTION 8
Easement Against Nuisance (n)
Article 680
If the branches of any tree should extend over a
neighboring estate, tenement, garden or yard, the Article 682
owner of the latter shall have the right to demand Every building or piece of land is subject to the
that they be cut off insofar as they may spread easement which prohibits the proprietor or
over his property, and, if it be the roots of a possessor from committing nuisance through
neighboring tree which should penetrate into the noise, jarring, offensive odor, smoke, heat, dust,
land of another, the latter may cut them off himself water, glare and other causes.
within his property. (592)
Article 683
Article 681 Subject to zoning, health, police and other laws and
Fruits naturally falling upon adjacent land belong regulations, factories and shops may be maintained
to the owner of said land. (n) provided the least possible annoyance is caused to
the neighborhood.
Intermediate distances for planting
Article 679 of the New Civil Code prohibits the SECTION 9
planting of trees near a tenement or piece of land Lateral and Subjacent Support (n)
belonging to another person unless the following
distance requirement is observed: Article 684
No proprietor shall make such excavations upon
1) the distance authorized by local ordinances or
his land as to deprive any adjacent land or building
customs of the place, if any; or of sufficient lateral or subjacent support.
2) in default of the foregoing, at a distance of at
least two (2) meters from the dividing line of Article 685
the estate in case of tall trees and at a distance Any stipulation or testamentary provision
of at least 50 centimeters in case of shrubs allowing excavations that cause danger to an
or small trees. adjacent land or building shall be void.
Right to cut branches and roots Legal easement of lateral and subjacent support
Branches The right of lateral and subjacent support is the right
1) If the branches of any tree should extend over to have land supported by the adjoining land or the soil
a neighboring estate, tenement, garden or yard, beneath. Each of two adjoining landowners is entitled
the owner of the latter does not have the to the support of the other’s land.
right to take the matter into his own hand 1) Lateral support - when the supported and the
by cutting of the branches extending on his supporting lands are divided by a vertical plane
property. Instead, he may demand that the 2) Subdjacent support - the supported land is
protruding branches be cut-off by its above and the supporting land is beneath it.
owner.
2) If his demand is not acted upon, he has to go GR: An owner, by virtue of his surface right, may make
to court to seek authority for the cutting of the excavations on his land.
protruding branches. XPN: He shall not deprive any adjacent land or
building of sufficient lateral or subjacent support.
Roots (Castro v. Monsod)
The owner of the latter may himself cut off the roots
found within his property. Between two adjacent landowners, each has an
absolute property right to have his land laterally
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supported by the soil of his neighbor, and if either, thereof, the easement shall be governed by such
in excavating on his own premises, he so disturbs the provisions of this Title as are applicable thereto.
lateral support of his neighbor’s land as to cause it, (598)
or, in its natural state, by the pressure of its own
weight, to fall away or slide from its position, the one Article 693
so excavating is liable. If the owner of the servient estate should have
bound himself, upon the establishment of the
We sustain the CA in declaring that a permanent easement, to bear the cost of the work required for
injunction on the part of petitioner from making the use and preservation thereof, he may free himself
injurious excavations is necessary in order to protect from this obligation by renouncing his property to
the interest of respondent. However, an annotation the owner of the dominant estate. (599)
of the existence of the subjacent and lateral support
is no longer necessary. It exists whether or not it is Voluntary easement
annotated or registered in the registry of property. A If the claimant is not entitled to demand for an
judicial recognition of the same already binds the easement as a matter of right because the requisites for
property and the owner of the same, including her legal easement are not present, the easement may only
successors-in-interest. Otherwise, every adjoining be constituted upon the will of the owner of the
landowner would come to court or have the
servient estate in which case, the easement is classified
easement of subjacent and lateral support registered
in order for it to be recognized and respected. as voluntary.
(Castro v. Monsod)
Easement of a co-owned property
CHAPTER 3 If the tenement or piece of land is in a state of co-
Voluntary Easements ownership, the unanimous consent of all co-owners
is required in order to constitute a voluntary easement
Article 688 upon the same.
Every owner of a tenement or piece of land may
establish thereon the easements which he may deem It may either be done
suitable, and in the manner and form which he may 1) Simultaneously -
deem best, provided he does not contravene the 2) Successively - consent given by one of the co-
laws, public policy or public order. (594) owners separately from the others shall already
bind him and his successors
Article 689
The owner of a tenement or piece of land, the Abandonment of property
usufruct of which belongs to another, may impose 1) If upon the establishment of a voluntary
thereon, without the consent of the usufructuary,
easement, the owner of the servient estate
any servitudes which will not injure the right of
usufruct. (595) bound himself to bear the cost of the work
required for the use and preservation of the
Article 690 easement he may free himself from this
Whenever the naked ownership of a tenement or obligation by renouncing his property to the
piece of land belongs to one person and the owner of the dominant estate.
beneficial ownership to another, no perpetual 2) The owner of the servient estate need not
voluntary easement may be established thereon renounce his ownership over the entire
without the consent of both owners. (596) property if the servitude affects only a part
thereof in which case, he may abandon only
Article 691 that part which is burdened with the servitude.
In order to impose an easement on an undivided
tenement, or piece of land, the consent of all the Must the abandonment be reduced in some form?
co-owners shall be required.
Since the abandonment contemplated in Article 693 of
The consent given by some only, must be held in the New Civil Code produces the transmission of
abeyance until the last one of all the co-owners shall ownership over a real property, the law (Article 1358,
have expressed his conformity. par. 1 of the New Civil Code) requires that the same
must appear in a public document. However, the
But the consent given by one of the co-owners provision of Article 1358 of the Civil Code on the
separately from the others shall bind the grantor necessity of a public document is only for convenience,
and his successors not to prevent the exercise of the not for validity or enforceability.
right granted. (597a)
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
A nuisance is any act, omission, establishment, any considerable number of persons, although the
business, condition of property, or anything else extent of the annoyance, danger or damage upon
which: individuals may be unequal. A private nuisance is
one that is not included in the foregoing definition.
(1) Injures or endangers the health or safety of
others; or Classifications
(2) Annoys or offends the senses; or According to the object it affects
(3) Shocks, defies or disregards decency or morality; 1) public - affects a community or neighborhood
or or any considerable number of persons,
(4) Obstructs or interferes with the free passage of although the extent of the annoyance, danger
any public highway or street, or any body of water;
or damage upon individuals may be unequal.
or
(5) Hinders or impairs the use of property. 2) Private - one that is not included in the
foregoing definition
Definition One that violates only the private rights
derived from the French word “nuire” which and produces damages to but one or a
means to injure, hurt or harm. few persons (Cruz v. Pandacan
Art 431 specifically mandates that the owner of Hiker’s Club)
a thing cannot make use thereof in such a 3) Mixed - one which is both public and private
manner as to injure the rights of a third person. in its effects, public because it injures many
The source of obligation of the person persons or all the community, and private in
responsible to pay damages is quasi delict or that it also produces special injuries to private
tort. rights.
Any
o act, Private nuisance Trespass to land
interference with his use an invasion of the
o omission,
and enjoyment of it plaintiff’s interest in the
o establishment,
exclusive possession of
o business, his land
o condition of property or a use of one’s own a direct infringement of
o anything else property in such a another’s right of
which injures or endangers the health or manner as to cause injury property
safety of others; annoys or offends the to the property or other
senses, shocks, defies or disregards right or interest of
decency or morality, obstructs or another and generally
interferes with the free passage of any results from the
public highway or street, or any body of commission of an act
water or hinders or impairs the use of beyond the limits of the
property. (Art 694) property affected
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Per se Per accidens (1) A prosecution under the Penal Code or any local
nuisance under any and may become a nuisance ordinance: or
all circumstances by reason of the (2) A civil action; or
circumstances of the (3) Abatement, without judicial proceedings.
location and
surroundings or manner Article 700
in which it is performed The district health officer shall take care that one
or operated or all of the remedies against a public nuisance are
injury in some form is injury is uncertain or availed of.
certain to be inflicted contingent until it
actually occurs Article 701
May be summarily Cannot be abated If a civil action is brought by reason of the
abated without due hearing maintenance of a public nuisance, such action shall
be commenced by the city or municipal mayor.
Respondents can not seek cover under the general
welfare clause authorizing the abatement of Article 702
nuisances without judicial proceedings. That tenet The district health officer shall determine whether
applies to a nuisance per se, or one which affects or not abatement, without judicial proceedings,
the immediate safety of persons and property is the best remedy against a public nuisance.
and may be summarily abated under the
undefined law of necessity. The storage of copra Article 703
in the quonset building is a legitimate business. By A private person may file an action on account of
its nature, it can not be said to be injurious to rights a public nuisance, if it is specially injurious to
of property, of health or of comfort of the himself.
community. If it be a nuisance per accidens it may
be so proven in a hearing conducted for that Article 704
purpose. It is not per se a nuisance warranting its Any private person may abate a public nuisance
summary abatement without judicial intervention. which is specially injurious to him by removing, or
(Perez v. Madrona) if necessary, by destroying the thing which
constitutes the same, without committing a breach
Doctrine of attractive nuisance of the peace, or doing unnecessary injury. But it is
necessary:
xxxThe doctrine may be stated, in short, as follows:
one who maintains on his premises dangerous
(1) That demand be first made upon the owner or
instrumentalities or appliances of a character likely
to attract children in play, and who fails to exercise possessor of the property to abate the nuisance;
(2) That such demand has been rejected;
ordinary care to prevent children from playing
therewith or resorting thereto, is liable to a child of (3) That the abatement be approved by the district
health officer and executed with the assistance of
tender years who is injured thereby, even if the
child is technically a trespasser in the premises. the local police; and
(4) That the value of the destruction does not
the attractive nuisance doctrine generally is not exceed three thousand pesos.
applicable to bodies of water, artifi cial as well as
natural, in the absence of some unusual condition or Article 705
The remedies against a private nuisance are:
artifi cial feature other than the mere water and its
location (Hidalgo Enterprises, Inc. v. Balandan)
(1) A civil action; or
(2) Abatement, without judicial proceedings.
Article 696
Every successive owner or possessor of property Article 706
who fails or refuses to abate a nuisance in that Any person injured by a private nuisance may abate
property started by a former owner or possessor is it by removing, or if necessary, by destroying the
liable therefor in the same manner as the one thing which constitutes the nuisance, without
who created it. committing a breach of the peace or doing
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unnecessary injury. However, it is indispensable or structure, which is a nuisance at all times and
that the procedure for extrajudicial abatement of under any circumstances, regardless of location or
a public nuisance by a private person be surrounding. Here, it is merely the hotel’s particular
followed. incident––its location––and not its inherent qualities
that rendered it a nuisance. Otherwise stated, had it
Article 707 not been constructed in the no build zone, Boracay
A private person or a public official West Cove could have secured the necessary permits
extrajudicially abating a nuisance shall be liable for without issue. As such, petitioner is correct that the
damages: hotel is not a nuisance per se, but to Our mind, it is
still a nuisance per accidens. (Aquino v.
(1) If he causes unnecessary injury; or Municipality of Malay)
(2) If an alleged nuisance is later declared by the
courts to be not a real nuisance. The business of gasoline station could not be
considered a nuisance per se which the municipality
Remedies could summarily abate in the guise of exercising its
Public nuisance Private nuisance police power. Hence, it cannot be closed down or
A prosecution under transferred summarily to another location. (Parayno
the Penal Code or any v. Jovellanos)
local ordinance
A civil action A civil action The bus and jeepney terminals are not nuisances per
Abatement, without Abatement, without se. Hence, they may not be abated via an ordinance,
judicial proceedings judicial proceedings without judicial proceedings, as was done in this
case. (Lucena Grand Central Terminal, Inc. v.
The remedies of an abatement and damages are JAC Liner)
cumulative; hence, both may be demanded. (Rana
v. Lee Wong) The Court likewise struck down the ordinance
passed by the City Council of Manila prohibiting the
Abatement of nuisance operation of sauna parlors, massage parlors, karaoke
In establishing a no build zone through local bars, night clubs, day clubs, super clubs,
legislation, the LGU effectively made a discotheques, cabarets, dance halls, motels and inns
determination that constructions therein, without within the Ermita-Malate area. The Court held,
first securing exemptions from the local council, among others, that the City of Manila could not
qualify as nuisances for they pose a threat to public seek cover under the general welfare clause to
safety. No build zones are intended for the authorize the abatement of nuisances without
protection of the public because the stability of the judicial proceedings because motels are not
ground’s foundation is adversely affected by the nuisances per se. (City of Manila v. Judge
nearby body of water. The ever-present threat of Laguio, Jr)
high rising storm surges also justifies the ban on
permanent constructions near the shoreline. Indeed, Concrete posts summarily removed by the
the area’s exposure to potential geo-hazards cannot Municipal Engineer did not at all pose a hazard to
be ignored and ample protection to the residents of the safety of persons and properties, which would
Malay, Aklan should be afforded. have necessitated immediate and summary
abatement. What the concrete posts did, at most,
Challenging the validity of the public respondents’ was to pose an inconvenience to the public by
actuations, petitioner posits that the hotel cannot blocking the free passage of people to and from the
summarily be abated because it is not a nuisance per national road (Telmo v. Bustamante)
se, given the hundred million peso-worth of capital
infused in the venture. Citing Asilo, Jr. v. People, A basketball ring is not a nuisance per se that is
petitioner also argues that respondents should have susceptible to a summary abatement. At most, it is a
first secured a court order before proceeding with nuisance per accidens. A basketball ring, by itself,
the demolition. poses no immediate harm or danger to anyone but
is merely an object of recreation. Neither is it, by
Preliminarily, We agree with petitioner’s posture that nature, injurious to rights of property, of health or
the property involved cannot be classified as a of comfort of the community and, thus, it may not
nuisance per se, but not for the reason he so be abated as a nuisance without the benefit of a
offers. Property valuation, after all, is not the judicial hearing. (Cruz v. Pandacan Hikers Club)
litmus test for such a determination. More
controlling is the property’s nature and Does the LGU have the power to declare a particular
conditions, which should be evaluated to see if thing as a nuisance?
it qualifies as a nuisance as defined under the Generally, LGUs have no power to declare a
law. particular thing as a nuisance unless such a thing is a
nuisance per se.
In the case at bar, the hotel, in itself, cannot be
considered as a nuisance per se since this type of Under Section 447(a)(3)(i) of R.A. No. 7160,
nuisance is generally defined as an act, occupation, otherwise known as the Local Government Code,
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Who are liable for damages [Art 696, 697] Essential elements
1) the person who caused the nuisance the essential reduction of the patrimony of the
2) every successive owner or possessor of the donor;
property who fails or refuses to abate the same the increase in the patrimony of the donee; and
in that property – SAME LIABILITY the intent to do an act of liberality or animus
donandi.
Lapse of time [Art 698]
Lapse of time cannot legalize any nuisance, whether Characteristics
public or private. 1) Not every form of liberality is considered as
donation. The liberality should be strictly
construed.
TITLE IX 2) It is a contract
REGISTRY OF PROPERTY
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3) It is a bilateral act but is a unilateral contract Donations with an onerous cause shall be governed
which imposes obligations only on the donor. by the rules on contracts and remuneratory
4) It requires tradition (delivery) to vest title in the donations by the provisions of the present Title as
donee. regards that portion which exceeds the value of the
5) It is a mode of acquisition of ownership. It burden imposed. (622)
need not be completed by tradition.
Classifications
Donative intent is a feature of minds; donative intent 1) Mortis causa - If the donation is made in
is presumed present when one gives a part of one's contemplation of the donor’s death, meaning
patrimony to another without consideration. that the full or naked ownership of the donated
(Abello v. CIR) properties will pass to the donee only because
of the donor’s death. It is actually a devise or a
For a donation to exist, however, the intent to legacy.
donate must be effectively carried out. Hence, a 2) Inter vivos - if the donation takes effect during
mere declaration of an intention or desire to donate the donor’s lifetime or independently of the
is not a donation. (Jutic v. CA) donor’s death, meaning that the full or naked
ownership (nuda proprietas) of the donated
Article 726 properties passes to the donee during the
When a person gives to another a thing or right on donor’s lifetime.
account of the latter's merits or of the services According to purpose or cause
rendered by him to the donor, provided they do not 1) Pure or simple - one where the underlying
constitute a demandable debt, or when the gift cause is plain gratuity or pure liberality (no
imposes upon the donee a burden which is less than
strings attached). Donation in its truest
the value of the thing given, there is also a donation.
(619) form.
2) Remuneratory or compensatory - one
Article 727 made for the purpose of rewarding the
Illegal or impossible conditions in simple and donee for past services, which services do
remuneratory donations shall be considered as not not amount to a demandable debt
imposed. (n) (payment). (Art 726)
Note: if future, the donation is onerous.
Article 728 3) Conditional or modal - one where the
Donations which are to take effect upon the death donation is made in consideration of
of the donor partake of the nature of testamentary future services or where the donor
provisions, and shall be governed by the rules imposes certain conditions, limitations
established in the Title on Succession. (620)
or charges upon the donee, the value of
which is inferior than that of the donation
Article 729
When the donor intends that the donation shall take given. (Art 726)
effect during the lifetime of the donor, though the o There is donation as to the extent
property shall not be delivered till after the donor's of the excess
death, this shall be a donation inter vivos. The fruits of Conditional/modal Onerous
the property from the time of the acceptance of the the donor imposes made for a
donation, shall pertain to the donee, unless the certain conditions, valuable
donor provides otherwise. (n) limitations or charges consideration, the
upon the donee, the cost of which is
Article 730 value of which is equal to or more
The fixing of an event or the imposition of a inferior than that of than the thing
suspensive condition, which may take place beyond the donation given donated
the natural expectation of life of the donor, does not Shall be governed by It is completely
destroy the nature of the act as a donation inter vivos, the law on contracts governed not by
unless a contrary intention appears. (n) up to extent of the the law on
burden and by the law donations but by
Article 731 on donations as the law on
When a person donates something, subject to the regards that portion contracts
resolutory condition of the donor's survival, there is which exceeds the
a donation inter vivos. (n) value of the burden
imposed.
Article 732
Donations which are to take effect inter vivos shall be 4) Onerous – that which imposes upon the
governed by the general provisions on contracts and donee a reciprocal obligation; made for a
obligations in all that is not determined in this Title. valuable consideration. (Art 733)
(621)
Article 733
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
clearly implies the acquisition of property only that there is prohibition to alienate, encumber,
from and after the death of the alleged donors. dispose, or sell the same.
3) Where the alleged donation expressly reserved 4) Where the donation expressly declares that it is
the right to dispose of the properties conveyed irrevocable and the owner makes reservation
at any time before his death, and limited the for himself, during his lifetime, of the owner’s
donation “to whatever property or properties share of the fruits or produce, the deed is a
left undisposed by (the donor) during (his) donation inter vivos although it provides that
lifetime.” the donation shall become effective after the
4) Where the circumstances surrounding the death of the donor.
execution of the deed of donation reveal that 5) When the deed of donation provides that the
the donation could not have taken effect donor will not dispose or take away the
before the donor’s death and the rights to property donated (thus making the donation
dispose of the donated properties and to enjoy irrevocable), he is in effect making a donation
the fruits remained with the donor during her inter vivos.
lifetime. 6) Where the power to indirectly revoke is hedged
5) Where it was stated in the deeds of donation in by the specification that the donor could
that the donations shall “become effective dispose of the property only to satisfy her
upon the death of the donor” and “that in the needs, the donation must be held to partake of
event that the donee should die before the the nature of a conveyance inter vivos.
donor, the donation shall be deemed RATIONALE: It appears incompatible with
automatically rescinded and of no further force the grantor’s freedom to revoke a true
and effect.” conveyance mortis causa, a faculty that is
6) A donation which purports to be one inter essentially absolute and discretionary, whether
vivos but withholds from the donee the right its purpose should be to supply her needs or to
to dispose of the donated property during the make a profit, or have no other reason than a
donor’s lifetime is in truth one mortis causa. change of volition on the part of the grantor-
XPN: a prohibition to alienate may not testator.
necessarily defeat the inter vivos character of
the donation. In ascertaining the intention of Article 734
the donor, all of the deed’s provisions must be The donation is perfected from the moment the
read together. (Gestopa and Austria-Magat donor knows of the acceptance by the donee. (623)
case)
7) If there are no signs contradicting or limiting Perfection of donation
the unqualified and unrestricted right of the Like any other contract, donation also follows the
donor to alienate the conveyed property in theory of cognition. The donation is perfected from
favor of other persons of her choice at any time the moment the donor knows of the acceptance by the
that she should wish to do so, the same is a true donee. Before notice of the acceptance, the offeror is
conveyance mortis causa since it indirectly not bound and may withdraw the offer of donation.
recognizes the donor’s power to nullify the
conveyance to the alleged donee whatever the For a contract to arise, the acceptance must be made
donor wished to do so, for any reason or for known to the offeror. Accordingly, the acceptance
no particular reason at all. can be withdrawn or revoked before it is made
known to the offeror. (Jardine Davis v. CA)
Examples of donation inter vivos
1) When the attending circumstances in the Acceptance is indispensable
execution of the subject deed demonstrated the Without acceptance, the donation is not perfected. The
intent of the donor to transfer the ownership rationale behind the requirement of acceptance is that
over the properties upon its execution since nobody is obliged to receive a benefit against his will.
prior to the execution of the donation inter
vivos, the donor spouses already executed Effects of acceptance
three donations mortis causa. 1) the donee becomes the absolute owner of the
2) The fact that the donee accepted the donation property donated, (CJ Yulo & Sons vs.
is an indication that the donation is inter vivos Roman Catholic) notwithstanding the
because donations mortis causa are not condition imposed by the donee. (Quijada v.
required to be accepted by the donees during CA)
their lifetime. 2) Once the donation is accepted, it is generally
3) Where the donation expressly provides that it considered irrevocable.
is irrevocable although there are provisions in 3) upon acceptance by the donee, the donor can
the deed which state that the same will only no longer withdraw, and he can be compelled
take effect upon the death of the donor and to comply with his offering or to deliver the
things he wanted to donate. (Manresa)
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4) The donation, however, may be made Article 746 of the New Civil Code requires that the
revocable upon the fulfillment of resolutory “acceptance must be made during the lifetime of the
conditions, or may be revoked only for the donor and of the donee.” This article, however, must
reasons provided in Articles 760, 764 and 765 be read in conjunction with the provisions of Articles
of the Civil Code. 734 and 1323 of the New Civil Code.
When the Municipality’s acceptance of the donation Article 746. Acceptance must be made during the
was made known to the donor, the former became lifetime of the donor and of the donee. (n)
the new owner of the donated property — donation
being a mode of acquiring and transmitting Article 734. The donation is perfected from the
ownership — notwithstanding the condition moment the donor knows of the acceptance by the
imposed by the donee. donee. (623)
In this case, that resolutory condition is the Article 1323. An offer becomes ineffective upon the
construction of the school. It has been ruled that death, civil interdiction, insanity, or insolvency of
when a person donates land to another on the either party before acceptance is conveyed. (n)
condition that the latter would build upon the land a
school, the condition imposed is not a condition CHAPTER 2
precedent or a suspensive condition but a resolutory Persons Who May Give or Receive a Donation
one.
Article 735
The donor may have an inchoate interest in the
All persons who may contract and dispose of their
donated property during the time that ownership of
property may make a donation. (624)
the land has not reverted to her. Such inchoate
interest may be the subject of contracts including a
Article 736
contract of sale. The donor may have an inchoate
Guardians and trustees cannot donate the property
interest in the donated property during the time that
entrusted to them. (n)
ownership of the land has not reverted to her. Such
inchoate interest may be the subject of contracts
Article 737
including a contract of sale.
The donor's capacity shall be determined as of the
time of the making of the donation. (n)
The consummation, however, of the perfected
contract is another matter. It occurs upon the
Article 738
constructive or actual delivery of the subject matter
All those who are not specially disqualified by law
to the buyer when the seller or her successorsin-
therefor may accept donations. (625)
interest subsequently acquires ownership thereof.
Such circumstance happened in this case when
Article 739
petitioners — who are Trinidad Quijada’s heirs and
The following donations shall be void:
successors-in-interest — became the owners of the
subject property upon the reversion of the
(1) Those made between persons who were guilty of
ownership of the land to them. Consequently,
adultery or concubinage at the time of the donation;
ownership is transferred to respondent Mondejar
(2) Those made between persons found guilty of the
and those who claim their right from him. Article
same criminal offense, in consideration thereof;
1434 of the New Civil Code supports the ruling that
(3) Those made to a public officer or his wife,
the seller’s “title passes by operation of law to the
descendants and ascendants, by reason of his office.
buyer.” This rule applies not only when the subject
matter of the contract of sale is goods, but also to
In the case referred to in No. 1, the action for
other kinds of property, including real property.
declaration of nullity may be brought by the spouse
(Quijada v. CA)
of the donor or donee; and the guilt of the donor
and donee may be proved by preponderance of
When the donation is subject to the condition that evidence in the same action. (n)
the done should construct or build a structure on the
donated property, the donation is subject to a Article 740
resolutory condition. It is not correct to say that the Incapacity to succeed by will shall be applicable to
structure has to be constructed before the donation donations inter vivos. (n)
becomes effective, that is, before thedone can
become the owner of the land, otherwise, it would Article 741
be invading the property rights of the donor. Upon Minors and others who cannot enter into a contract
the non-fulfillment of the condition, the donation may become donees but acceptance shall be done
may be revoked and all the rights already acquired by through their parents or legal representatives. (626a)
the donee shall be deemed lost and extinguished.
(Clemente v. Republic) Article 742
Donations made to conceived and unborn children
Time for making acceptance may be accepted by those persons who would legally
represent them if they were already born. (627)
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Article 746 Thus, where the donor, at the time of the execution
Acceptance must be made during the lifetime of the of the deeds of donation covering numerous
donor and of the donee. (n) properties, was already at an advanced age of 75,
afflicted with dementia, not necessarily in the pinkest
Capacity to donate of health since she was then, in fact, admitted to the
The donor's capacity shall be determined as of the hospital, the same had the effects of impairing her
brain or mental faculties so as to considerably affect
time of the making of the donation. (Art 737)
her consent, and that fraud or undue influence
would have been employed in order to procure her
Article 746. Acceptance must be made during the signature on the questioned deeds rendering the
lifetime of the donor and of the donee. (n) same voidable (Lavarez v. Guevarra)
Article 734. The donation is perfected from the Double donations (Art 744)
moment the donor knows of the acceptance by the
Being a mode of acquiring and transmitting ownership
donee. (623)
or other real rights, a donation once perfected would
deny the valid execution of a subsequent inconsistent
Article 1323. An offer becomes ineffective upon the
death, civil interdiction, insanity, or insolvency of donation (unless perhaps if the prior donation has
either party before acceptance is conveyed. (n) provided a suspensive condition which still pends
when the later donation is made).
If the donor is capacitated at the time he makes the
donation his subsequent incapacity by reason of civil Donee
interdiction, insanity or insolvency before acceptance GR: All those who are not specially disqualified by law
is conveyed will render the offer ineffective, thus therefor may accept donations. (Art 738)
preventing the perfection of the donation. XPNs:
Conceived child – subject to the rule in Art 41 and 742
The rule on double sales finds no relevance in an Article 41. For civil purposes, the foetus is
ordinary donation where the law requires the donor to considered born if it is alive at the time it is
have ownership of the thing or the real right he donates completely delivered from the mother's womb.
However, if the foetus had an intra-uterine life of
at the time of its perfection since a donation constitutes
less than seven months, it is not deemed born if
a mode, not just a title in an acquisition and it dies within twenty-four hours after its complete
transmission of ownership. delivery from the maternal womb. (30a)
Donations cannot comprehend future property Article 742. Donations made to conceived and
Article 751. Donations cannot comprehend future unborn children may be accepted by those
property. persons who would legally represent them if
they were already born. (627)
By future property is understood anything which the
donor cannot dispose of at the time of the donation. Capacity
(635) Donor Donee
Capacity to act – the Juridical capacity – the
Donations Sale power to do acts with fitness to be the subject
Cannot comprehend Parties may sell future legal effects of legal relations
future property things
Minors
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Minors and others who cannot enter into a contract obliged to make the notification and notation of
may become donees but acceptance shall be done which article 749 speaks. (631)
through their parents or legal representatives. (Art 741)
Article 748
Persons disqualified to become donees The donation of a movable may be made orally or in
1) Those who were guilty of adultery or writing.
concubinage at the time of the donation; (Art
An oral donation requires the simultaneous delivery
739, 1)
of the thing or of the document representing the
o the action for declaration of nullity may right donated.
be brought by the spouse of the donor
or donee; and the guilt of the donor If the value of the personal property donated
and donee may be proved by exceeds five thousand pesos, the donation and the
preponderance of evidence in the acceptance shall be made in writing. Otherwise, the
same action. donation shall be void. (632a)
o NO PREVIOUS CRIMINAL
CONVICTION IS NECESSARY Article 749
2) Those who were found guilty of the same In order that the donation of an immovable may be
criminal offense, if the donation is made in valid, it must be made in a public document,
consideration thereof; (Art 739, 2) specifying therein the property donated and the
value of the charges which the donee must satisfy.
o Principal by inducement and principal
by direct participation
The acceptance may be made in the same deed of
o PREVIOUS CRIMINAL donation or in a separate public document, but it
CONVICTION IS NECESSARY shall not take effect unless it is done during the
3) Public officers or their spouses, descendants lifetime of the donor.
and ascendants, if the donation is made by
reason of their office; (Art 739, 3) If the acceptance is made in a separate instrument,
4) Those who are incapacitated to succeed by will; the donor shall be notified thereof in an authentic
(Art 740) form, and this step shall be noted in both
o Art 1027 instruments. (633)
5) The spouses, if the donation is between them
and made during the marriage, except Formalities in donation
moderate ones given on the occasion of any Donation Other contracts
family rejoicing; and (Art 87, FC) Art 748 and 749 Art 1321
o Applies to all property regime Mandatory in character; The person making the
6) Those who are living together as husband and hence, the offeror offer may fix the time,
wife without a valid marriage, if the donation is (donor) may not place, and manner of
prescribe different acceptance, all of which
between them and made during their
formalities in accepting a must be complied.
cohabitation. (Art 87, FC) donation other than
o At the very least, cohabitation is the those provided in said
public assumption by a man and a articles.
woman of the marital relation, and Applies only to donation
dwelling together as man and wife, inter vivos which are
thereby holding themselves out to the simple or remuneratory;
public as such. (Bitangcor v. Tan) applies also to donation
propter nuptias
Manner of acceptance
1) Must follow the forms (Art 748, 749) – Donation propter nuptias
OTHERWISE, VOID 1) it must be made before the celebration of the
2) The donee must accept the donation marriage;
o personally, or 2) it must be made in consideration of the
o through an authorized person with a marriage; and
special power for the purpose, or 3) it must be made in favor of one or both of the
o with a general and sufficient power future spouses.
(Art 745) – OTHERWISE, VOID o Donor – third persons or the future
3) Acceptance must be made during the lifetime spouses
of the donor and of the donee. (Art 746) o Donee – either of the future spouses
or both of them
Article 747
Persons who accept donations in representation of Personal property
others who may not do so by themselves, shall be 1) 5,000 or less – may be made orally or in writing
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o If made orally – There must be It is well-settled that if the notification and notation
SIMULTANEOUS DELIVERY are not complied with, the donation is void.
OF THE THING OR THE (Republic v. Guzman)
DOCUMENT
o Otherwise, VOID The purpose of the formal requirement for
2) More than 5,000 – acceptance of a donation is to ensure that such
o Acceptance – IN WRITING acceptance is duly communicated to the donor.
o Donation – IN WRITING
However, a strict and literal adherence to the
requirement of “notation” in Article 749 of the
Where the alleged subject of donation was the Civil Code should be avoided if such will result
purchase money in a contract of sale in the amount not in justice to the parties but conversely a
of P3,297,800, the Court held that the donation must distortion of their intentions. Thus, if the donor
comply with the mandatory requirements of Article was not unaware of the acceptance for she in fact
748. confirmed it later and requested that the donated
land be not registered during her lifetime, the Court
Petitioners could not brush aside the fact that a held that it cannot in conscience declare the
donation must comply with the mandatory formal donation ineffective simply because there is no
requirements set forth by law for its validity. Since notation for that would be placing too much stress
the subject donation is the purchase money, Art. 748 on mere form over substance. (Pajarillo v. IAC)
of the New Civil Code is applicable. Accordingly, the
donation of money equivalent to P3,297,800 as well
as its acceptance should have been in writing. It was The purpose of the formal requirement for
not. Hence, the donation is invalid for acceptance of a donation is to ensure that such
noncompliance with the formal requisites prescribed acceptance is duly communicated to the donor.
by law. (Lentfer v. Jurgen Wolff)
In the case at bar, a school building was immediately
constructed after the donation was executed.
Real property
Respondents had knowledge of the existence of the
1) both the donation and the acceptance must be school building put up on the donated lot through
embodied in a public instrument, although the efforts of the Parents-Teachers Association of
not necessarily embodied in a single Barangay Kauswagan. It was when the school
document; building was being dismantled and transferred to the
2) the real property donated and the value of the new site and when ViceMayor Wilfredo Palma was
charges which the donee is required to satisfy constructing a house on the donated property that
must be specified in the deed of donation; respondents came to know of the Deed of
3) if the acceptance is embodied in a separate Exchange. The actual knowledge by respondents of
public document, the donor shall be notified the construction and existence of the school building
thereof in an authentic form and such step shall fulfilled the legal requirement that the acceptance of
be noted in both instruments of donation and the donation by the donee be communicated to the
donor. (Republic v. Silim)
acceptance.
Registration is not necessary for the validity of
All the foregoing requisites must be complied with,
donation
otherwise, the donation shall be void.
It is enough, between the parties to a donation of an
immovable property, that the donation be made in a
Public instrument/document public instrument but, in order to bind third
A deed of donation acknowledged before a notary persons, the donation must be registered in the
public is a public instrument. Registry of Property. (Shopper’s Paradise v.
Roque)
Notification and notation
Title to immovable property does not pass from the Such registration in the Office of the Register of
donor to the donee by virtue of a deed of donation Deeds or in the Assessor’s Office is not necessary
until and unless it has been accepted in a public for the donation to be considered valid and official.
instrument and the donor duly notified thereof. It is (Florencio v. De Leon)
well-settled that if the notification and notation are
not complied with, the donation is void. (Sumipat CHAPTER 3
v. Banga)
Effect of Donations and Limitations Thereon
if an acceptance is made in a separate public writing
the notice of the acceptance must be noted not only Article 750
in the document containing the acceptance but also
The donation may comprehend all the present
in the deed of donation. property of the donor, or part thereof, provided he
reserves, in full ownership or in usufruct, sufficient
means for the support of himself, and of all relatives
who, at the time of the acceptance of the donation,
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are by law entitled to be supported by the donor. Chapter 2. Donations by Reason of Marriage
Without such reservation, the donation shall be
reduced in petition of any person affected. (634a) Art. 82. Donations by reason of marriage are
those which are made before its celebration,
Article 751 in consideration of the same, and in favor of
Donations cannot comprehend future property. one or both of the future spouses. (126)
By future property is understood anything which the Art. 83. These donations are governed by
donor cannot dispose of at the time of the donation. the rules on ordinary donations established
(635) in Title III of Book III of the Civil Code,
insofar as they are not modified by the
Article 752 following articles. (127a)
The provisions of article 750 notwithstanding, no
person may give or receive, by way of donation, Art. 84. If the future spouses agree upon a
more than he may give or receive by will. regime other than the absolute community
of property, they cannot donate to each
The donation shall be inofficious in all that it may other in their marriage settlements more
exceed this limitation. (636) than one-fifth of their present property. Any
excess shall be considered void.
Extent of donation
GR: A donor may donate all his property or part Donations of future property shall be
thereof. governed by the provisions on testamentary
XPNs: succession and the formalities of wills.
1) He cannot donate future property; (130a)
Future property - anything which the donor
Art. 85. Donations by reason of marriage of
cannot dispose of at the time of the donation. property subject to encumbrances shall be
(Art 751). The phrase “at the time of the valid. In case of foreclosure of the
donation” in this article must not be given its encumbrance and the property is sold for
literal meaning since the requirement that the less than the total amount of the obligation
donor must be the owner of the property secured, the donee shall not be liable for the
donated attaches only at the time of the deficiency. If the property is sold for more
perfection of the donation and not prior than the total amount of said obligation, the
thereto. donee shall be entitled to the excess. (131a)
Art. 97. Either spouse may dispose by will of Art. 86. A donation by reason of marriage
his or her interest in the community may be revoked by the donor in the
property. (n) following cases:
* prior to the liquidation of the absolute
(1) If the marriage is not celebrated or
community or conjugal partnership, the
judicially declared void ab initio except
interest of each spouse in the community
donations made in the marriage settlements,
property or conjugal assets is inchoate, a mere which shall be governed by Article 81;
expectancy, which constitutes neither a legal (2) When the marriage takes place without
nor an equitable estate, and does not ripen into the consent of the parents or guardian, as
title until it appears that there are assets in the required by law;
community as a result of the liquidation and (3) When the marriage is annulled, and the
settlement. donee acted in bad faith;
(4) Upon legal separation, the donee being
XPN of XPN: In donation propter nuptias the guilty spouse;
between future spouses, the Family Code (5) If it is with a resolutory condition and the
allows a donation of future property between condition is complied with;
the spouses. The donation of future property (6) When the donee has committed an act of
ingratitude as specified by the provisions of
partakes of the nature of a testamentary
the Civil Code on donations in general.
provision and, as such, it is governed by the (132a)
provisions on testamentary succession and
the formalities of wills. Art. 87. Every donation or grant of
gratuitous advantage, direct or indirect,
Donation propter nuptias (Art 82-87, between the spouses during the marriage
Family Code) shall be void, except moderate gifts which
1) Donation made by the spouses to each the spouses may give each other on the
other occasion of any family rejoicing. The
2) Donation made by a third person prohibition shall also apply to persons living
together as husband and wife without a valid
marriage. (133a)
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When the donation imposes upon the donee the No warranty against eviction [Art 754]
obligation to pay the debts of the donor, if the clause GR: The donor does not warrant the thing donated
does not contain any declaration to the contrary, the against eviction.
former is understood to be liable to pay only the XPNs:
debts which appear to have been previously 1) when there is bad faith on the part of the
contracted. In no case shall the donee be responsible donor, in which case he is also liable for
for the debts exceeding the value of the property hidden defects; or
donated, unless a contrary intention clearly appears.
2) when the donation is onerous, in which case
(642a)
the donor shall be liable up to the amount
Article 759 equal to the burden
There being no stipulation regarding the payment of
debts, the donee shall be responsible therefor only Reservation of power to dispose
when the donation has been made in fraud of 1) reservation to all properties – donation
creditors. mortis causa
2) reservation of some of the properties – Art
The donation is always presumed to be in fraud of 755
creditors, when at the time thereof the donor did not 3) reservation of some of the properties but
reserve sufficient property to pay his debts prior to the donor died without having made use of
the donation. (643) the right – Art 755; the property or amount
reserved shall belong to the done
Donations made to several donees jointly [Art 753]
1) The donees are entitled to equal portions Separate donation of ownership and usufruct [Art
2) If donees are not husband and wife
756]
GR: There is no right of accretion between The donor may donate separately the ownership of the
them
property to one person and the usufruct to another or
XPN: When expressly provided
others subject only to the condition that all the donees
3) If donees are husband and wife must be living at the time of the donation.
GR: There is right of accretion between them
XPN: The donor provides the contrary Reversion [Art 757]
4) If the donation is made to the spouses jointly
1) The donor may validly provide for the
in a regime of conjugal partnership of
reversion or return of the property donated to
gains, and
him for any case and circumstances.
o with designation of determinate
2) The donor may establish a reversion in favor
shares - Their respective shares shall
of a third person provided that such person is
pertain to them as his or her own
living at the time of the donation. – if
exclusive property.
violated,
o Without designation - They shall
o Provision for reversion – VOID
share and share alike, without prejudice
o Donation – VALID
to the right of accretion
Art. 113. Property donated or left by Payment of donor’s debts
will to the spouses, jointly and with
With stipulation [Art 758]
designation of determinate shares,
shall pertain to the donee-spouses as 1) the donee is understood to be liable to pay only
his or her own exclusive property, the debts which appear to have been
and in the absence of designation, previously contracted; and
share and share alike, without 2) the liability of the donee is limited only to the
prejudice to the right of accretion value of the property donated.
when proper. (150a)
Without stipulation [Art 759]
Right of accretion The donee shall be responsible therefore only when the
When there is a right of accretion among several donation has been made in fraud of creditors.
donees, the share of the one who did not accept or o the liability of the donee is limited only to the
could not accept or who died before he had accepted value of the property donated.
shall go the other donees in proportion to the interest
of each in the donation. Presumption of fraud
Donation is presumed to be in fraud of creditors when
In such a situation, the acceptance by any of the at the time of the donation the donor did not reserve
donees of the donation shall result in its perfection sufficient property to pay his debts prior to the
thereby preventing the donor from revoking that part donation.
of the donation corresponding to the share of the one
who did not accept or who died prior to his acceptance. CHAPTER 4
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Revocation and Reduction of Donations persons, by the Mortgage Law and the Land
Registration laws.
Article 760
Every donation inter vivos, made by a person having This action shall prescribe after four years from the
no children or descendants, legitimate or noncompliance with the condition, may be
legitimated by subsequent marriage, or transmitted to the heirs of the donor, and may be
illegitimate, may be revoked or reduced as exercised against the donee's heirs. (647a)
provided in the next article, by the happening of any
of these events: Article 765
The donation may also be revoked at the instance of
(1) If the donor, after the donation, should have the donor, by reason of ingratitude in the following
legitimate or legitimated or illegitimate cases:
children, even though they be posthumous;
(2) If the child of the donor, whom the latter (1) If the donee should commit some offense
believed to be dead when he made the donation, against the person, the honor or the property of the
should turn out to be living; donor, or of his wife or children under his parental
(3) If the donor subsequently adopt a minor authority;
child. (644a) (2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude, even
Article 761 though he should prove it, unless the crime or the
In the cases referred to in the preceding article, the act has been committed against the donee himself,
donation shall be revoked or reduced insofar as it his wife or children under his authority;
exceeds the portion that may be freely disposed (3) If he unduly refuses him support when the
of by will, taking into account the whole estate of donee is legally or morally bound to give support to
the donor at the time of the birth, appearance or the donor. (648a)
adoption of a child. (n)
Article 766
Article 762 Although the donation is revoked on account of
Upon the revocation or reduction of the donation ingratitude, nevertheless, the alienations and
by the birth, appearance or adoption of a child, the mortgages effected before the notation of the
property affected shall be returned or its value if complaint for revocation in the Registry of
the donee has sold the same. Property shall subsist.
If the property is mortgaged, the donor may Later ones shall be void. (649)
redeem the mortgage, by paying the amount
guaranteed, with a right to recover the same from Article 767
the donee. In the case referred to in the first paragraph of the
preceding article, the donor shall have a right to
When the property cannot be returned, it shall be demand from the donee the value of property
estimated at what it was worth at the time of the alienated which he cannot recover from third
donation. (645a) persons, or the sum for which the same has been
mortgaged.
Article 763
The action for revocation or reduction on the The value of said property shall be fixed as of the
grounds set forth in article 760 shall prescribe after time of the donation. (650)
four years from the birth of the first child, or
from his legitimation, recognition or adoption, Article 768
or from the judicial declaration of filiation, or When the donation is revoked for any of the
from the time information was received causes stated in article 760, or by reason of
regarding the existence of the child believed dead. ingratitude, or when it is reduced because it is
inofficious, the donee shall not return the fruits
This action cannot be renounced, and is except from the filing of the complaint.
transmitted, upon the death of the donor, to his
legitimate and illegitimate children and descendants. If the revocation is based upon noncompliance
(646a) with any of the conditions imposed in the donation,
the donee shall return not only the property but
Article 764 also the fruits thereof which he may have
The donation shall be revoked at the instance of received after having failed to fulfill the
the donor, when the donee fails to comply with condition. (651)
any of the conditions which the former imposed
upon the latter. Article 769
The action granted to the donor by reason of
In this case, the property donated shall be returned ingratitude cannot be renounced in advance. This
to the donor, the alienations made by the donee and action prescribes within one year, to be counted
the mortgages imposed thereon by him being void, from the time the donor had knowledge of the
with the limitations established, with regard to third
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fact and it was possible for him to bring the Minor Legal age
action. (652) Art 760 Art 752
Rule on subsequent Rule on inofficious
Article 770 appearance of donations may apply
This action shall not be transmitted to the heirs of children or adoption
the donor, if the latter did not institute the same, will apply.
although he could have done so, and even if he
should die before the expiration of one year. o there shall be a provisional
liquidation of the estate of the donor
Neither can this action be brought against the heir at the time of the birth, appearance or
of the donee, unless upon the latter's death the adoption of a minor child for the
complaint has been filed. (653)
purpose of determining the donor’s
Article 771 estate and the child’s legitime or the
Donations which in accordance with the provisions whole estate of the donor at the time of
of article 752, are inofficious, bearing in mind the the birth, appearance or adoption of a
estimated net value of the donor's property at child
the time of his death, shall be reduced with regard o FREE PORTION – LEGITIME =
to the excess; but this reduction shall not prevent AMOUNT OF
the donations from taking effect during the life REVOCATION/REDUCTION
of the donor, nor shall it bar the donee from
appropriating the fruits. Q: If, at the time of the subsequent appearance
of a child under Article 760, the entire donation
For the reduction of donations the provisions of this is found to be within the free portion of the
Chapter and of articles 911 and 912 of this Code
donor’s estate, in which case, the donation is
shall govern. (654)
neither reduced nor revoked, and later on the
Article 772 donor died after suffering financial reverses,
Only those who at the time of the donor's death may such donation be revoked if found to be
have a right to the legitime and their heirs and inofficious at the time of the donor’s death?
successors in interest may ask for the reduction or A: Yes, in this situation, the ground for the
inofficious donations. revocation of the donation is Article 752 of the
New Civil Code.
Those referred to in the preceding paragraph
cannot renounce their right during the lifetime of Q: Let us consider, however, a donation which
the donor, either by express declaration, or by is either reduced or revoked because it is found
consenting to the donation. to be inofficious at the time of the subsequent
appearance of a child under Article 760, but
The donees, devisees and legatees, who are not
later on the donor dies a richer man and, at the
entitled to the legitime and the creditors of the
deceased can neither ask for the reduction nor time of his death, the previous donation could
avail themselves thereof. (655a) have been accommodated in the free portion,
may the donee be entitled to the return of the
Article 773 thing donated or its value?
If, there being two or more donations, the A: No, the ground for the revocation of the
disposable portion is not sufficient to cover all of donation is Article 760, which is an altogether
them, those of the more recent date shall be different ground from that provided in Article
suppressed or reduced with regard to the excess. 752.
(656)
2) the non-fulfillment of charges imposed in
Reduction or revocation of donations the donation; (Art 764)
Reduction Revocation
affects only a part or a affects the entire When the donation is subject to the condition that
portion thereof donation the done should construct or build a structure on the
Arts 750, 752, 760 Arts 760, 764, 765, 752 donated property, the donation is subject to a
resolutory condition. It is not correct to say that
Revocation the structure has to be constructed before the
GR: donation becomes effective, that is, before the
As a rule, once the donation is accepted, it is donee can become the owner of the land, otherwise,
generally considered irrevocable. (Gestopa v. CA) it would be invading the property rights of the
donor. Upon the non-fulfillment of the condition,
XPNs: the donation may be revoked and all the rights
1) the subsequent appearance of children; already acquired by the donee shall be deemed lost
(Art 760) and extinguished.
Adoption
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This general rule however cannot be applied The prescriptive period of an action for
considering the different set of circumstances revocation of an onerous donation by reason
existing in the instant case. More than a reasonable of non-compliance with the
period of fifty (50) years has already been allowed condition/obligation imposed is ten (10)
petitioner to avail of the opportunity to comply with years counted from the time within which
the condition even if it be burdensome, to make the the donee must comply with the
donation in its favor forever valid. But, conditions/obligations of the donation. (De
unfortunately, it failed to do so. Hence, there is no Luna v. Abrigo)
more need to fix the duration of a term of the
obligation when such procedure would be a mere Article 764 is applicable to onerous
technicality and formality and would serve no donations, except when the parties have
purpose than to delay or lead to an unnecessary and agreed on automatic revocation. (Roman
expensive multiplication of suits. Moreover, under Archbishop of Manila v. CA)
Art. 1191 of the Civil Code, when one of the
obligors cannot comply with what is incumbent In Dolar v. Municipality of Dumangas,
upon him, the obligee may seek rescission and the the Court did not make a categorical
court shall decree the same unless there is just cause ruling as to whether or not Article 764
authorizing the fixing of a period. In the absence of applies to an action for the revocation of
any just cause for the court to determine the period an onerous donation. The Court simply
of the compliance, there is no more obstacle for the ruled that the action had already prescribed
court to decree the rescission claimed. (Clemente v. whether the applicable legal provision is
Republic) Article 764 or Article 1144 of the Civil Code.
In the case of donation, the accrual of the cause of The four-year prescriptive period for the
action is from the expiration of the time within revocation of donation provided under
which the donee must comply with the Article 764 of the New Civil Code does not
conditions or obligations of the donation. In the apply. Since the deed of donation is
instant case, however, it must be noted that the considered a written contract, it is
subject donation fixed no period within which the governed instead by Article 1144 of the
donee can comply with the condition of donation. New Civil Code, which provides that the
As such, resort to Article 1197 of the New Civil prescriptive period for an action arising from
Code is necessary. Said article provides that if the a written contract is 10 years form the time
obligation does not fix a period, but from its nature the cause of action accrues.
and the circumstances it can be inferred that a period
was intended, the courts may fix the duration In the case of donation, the accrual of the
thereof. cause of action is from the expiration of the
time within which the done must comply
However, resort to Art 1997 will no longer be with the conditions or obligations of the
applicable if more than a reasonable period has donation. (Secretary v. Heirs of Dulay) -
already been allowed to the donee to avail of the CONTROLLING
opportunity to comply with the condition even if it
be burdensome, to make the donation in its favor Onerous donations with automatic revocation clause
forever valid, but the done still failed to do so.
Under Article 1306 of the New Civil Code, the
(Secretary v. Heirs of Dulay)
parties to a contract have the right "to establish
such stipulations, clauses, terms and conditions
While Article 764 uses the term “conditions,” as they may deem convenient, provided they are
what are actually being referred to in said article not contrary to law, morals, good customs,
are the obligations or charges imposed by the public order or public policy." Paragraph 11 of
donor on the donee. (Tolentino) the "Revival of Donation Intervivos, has provided
that "violation of any of the conditions (herein) shall
Conflicting rulings as to whether Art 764 or cause the automatic reversion of the donated area to
Art 1144 will apply the donor, his heirs, . . ., without the need of
Article 764 of the New Civil Code does not executing any other document for that purpose and
apply to onerous donations in view of the without obligation on the part of the DONOR".
specific provision of Article 733 providing Said stipulation not being contrary to law, morals,
that onerous donations are governed by the good customs, public order or public policy, is valid
rules on contracts. Invoking the provisions and binding upon the foundation who voluntarily
of Article 733, the Court further held that in consented thereto.
determining the prescriptive period of an
action to revoke an onerous donation the It is clear, however, that judicial intervention is
rules on contracts and the general rules necessary not for purposes of obtaining a
on prescription and not the rules on judicial declaration rescinding a contract
donations are applicable to onerous already deemed rescinded by virtue of an
donations. agreement providing for rescission even without
judicial intervention, but in order to determine
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whether or not the recession was proper. (De Luna property for ₱15,000.00, the donation was onerous.
v. Abrigo) As an endowment for a valuable consideration, it
partakes of the nature of an ordinary contract; hence,
When a deed of donation, as in this case, expressly the rules of contract will govern and Article 765 of
provides for automatic revocation and reversion of the New Civil Code finds no application with respect
the property donated, the rules on contract and the to the onerous portion of the donation.
general rules on prescription should apply, and not
Article 764 of the Civil Code. Since Article 1306 of Insofar as the value of the land exceeds the
said Code authorizes the parties to a contract to redemption price paid for by the donee, a donation
establish such stipulations, clauses, terms and exists, and the legal provisions on donation apply.
conditions not contrary to law, morals, good (Calanasan v. Dolorito)
customs, public order or public policy, we are of the
opinion that, at the very least, that stipulation of the 4) the fact that the donation is inofficious. (Art
parties providing for automatic revocation of the 752)
deed of donation, without prior judicial action for
that purpose, is valid subject to the determination of Subsequent Inofficious
the propriety of the rescission sought. Where such appearance donations
propriety is sustained, the decision of the court Art 760 Art 752
will be merely declaratory of the revocation, but Inofficiousness is to Inofficiousness
it is not in itself the revocatory act. be determined determined only at
during the lifetime the time of death of
It is our view that Article 764 was intended to of the donor the donor.
provide a judicial remedy in case of non-fulfillment
or contravention of conditions specified in the deed
How to determine inofficiousness of donations
of donation if and when the parties have not agreed
on the automatic revocation of such donation upon In determining whether the donation is
the occurrence of the contingency contemplated inofficious or not, recourse must be had to the
therein. (Roman Catholic Archbishop v. CA) rules established by the Civil Code for the
determination of the legitime and, by
It is only when the donee denies the rescission extension, of the disposable portion, taking
or challenges its propriety that the court can into consideration the estimated net value of
intervene to conclusively settle whether the the donor’s property at the time of his death.
resolution was proper. (Zamboanga v. Plagata)
1) determination of the value of the
SUMMARY: property which remains at the time of the
1) without automatic revocation clause – Art testator’s death;
764 applies – THERE MUST BE A 2) determination of the obligations, debts,
JUDICIAL ACTION and charges which have to be paid out or
2) with automatic revocation clause – Art 1306 deducted from the value of the property
applies; NO JUDICIAL ACTION IS thus left;
NEEDED. THE DONATION CAN 3) the determination of the difference
BE UNILATERALLY RESCINDED
between the assets and the liabilities,
XPN: only when the donee denies the
rescission or challenges its propriety giving rise to the hereditary estate;
4) the addition to the net value thus found,
3) the ingratitude of the donee; and (Art 765) of the value, at the time they were made, of
donations subject to collation; and
Grounds 5) the determination of the amount of the
1) If the donee should commit some offense legitimes by getting from the total thus
against the person, the honor or the property found the portion that the law provides as
of the donor, or of his wife or children under the legitime of each respective compulsory
his parental authority; heir.
2) If the donee imputes to the donor any
criminal offense, or any act involving moral FREELY DISPOSABLE PORTION =
turpitude, even though he should prove it, LEGITIME – NET VALUE OF THE
HEREDITARY ESTATE
unless the crime or the act has been committed
against the donee himself, his wife or children
FREE PORTION – LEGITIME = AMOUNT
under his authority; OF REVOCATION/REDUCTION
3) If he unduly refuses him support when the
donee is legally or morally bound to give Reduction
support to the donor. (648a) 1) that the donor did not reserve sufficient
property for his own and his family’s support;
We agree with the CA that since the donation (Art 750)
imposed on the donee the burden of redeeming the
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Property | VENTEROSO
FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Property | VENTEROSO
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Grounds
Art 760 Art 764 Art 765 Art 752
Effects 1)The property affected shall be 1)shall be revoked at the instance of the 1)The donor shall have a right to demand 1)This reduc on shall not prevent the
returned, or if it cannot be returned, at donor from the donee the value of property donations from taking effect during the
least its value; 2)the property donated shall be alienated which he cannot recover from life of the donor (Art 771)
2)If the property is mortgaged, the returned to the donor third persons, or the sum for which the 2)Nor shall it bar the donee from
donor may redeem the mortgage, by 3)The fruits which may have been same has been mortgaged. (Art 767) appropriating the fruits (Art 771)
paying the amount guaranteed, with a received after having failed to fulfill the 2)The aliena ons and mortgages
right to recover his payment from the condition must be returned (Art 768) effected before the notation of the
donee. When the property cannot be 4)the aliena ons made by the donee complaint for revocation in the Registry of
returned, it shall be estimated at what it and the mortgages imposed thereon by Property shall subsist. Later ones shall be
was worth at the time of the donation. him are void, with the limitations void. (Art 766)
3)The donee shall return the fruits of established, with regard to third persons, 3)The donee shall not return the fruits
property affected only from the filing of by the Mortgage Law and the Land except from the filing of the complaint.
the complaint. Registration laws. (Art 768)
Four years from the noncompliance with One year, to be counted from the time the Ten years from the death of the donor-
the condition donor had knowledge of the fact and it decedent.
Four years reckoned from the birth of the was possible for him to bring the action
first child, or from his legitimation,
recognition or adoption, or from judicial
declaration of filiation, or from the time
information was received regarding the
Prescriptive existence of the child believed dead. (Art
period 763)
Not subject to waiver or renunciation (Art
Waiver 763) Cannot be renounced in advance (Art 769)
Property | VENTEROSO
May be transmitted to the heirs of the Shall not be transmitted to the heirs of
donor, and may be exercised against the the donor, if the latter did not institute
donee's heirs. (Art 764) the same, although he could have done
Transmitted, upon the death of the so, and even if he should die before the
donor, to his legitimate or illegitimate expiration of one year. Neither can this
Transmissibility children and descendants, if the donor action be brought against the heir of the
of right of dies within the four-year prescriptive donee, unless upon the latter's death the
action period (Art 763) complaint has been filed. (Art 770)