PROPERTY LAW; Questions in Recitation; December 09, 2020
1. What is easement? Distinguish easement from usufruct.
An easement or service with is an encumbrance imposed upon an immovable
for the benefit of another immovable belonging to a different owner while
/usufruct gives a right to enjoy the property of another with obligation of
preserving its form and substance unless the title constituting it or the law
otherwise provides.
usufruct includes all uses of property and for all purposes including jus
fruendi. while easement is limited to a specific use.
usufruct may be constituted an immovable or movable property while
easement may be constituted only on a movable property easement is not
extinguished by death of the owner of the dominant estate while usufruct is
extinguish by the death of the usufructuary unless the contrary intention
appears.
an easement contemplates two states belonging to two different owners and
usufruct contemplates only one property while the usufructuary uses and
enjoys the property as well as its fruits while another owns the naked title
during the period of the usufruct.
a usufruct maybe alienated separately from the property to which it attaches
while an easement cannot be alienated separately from the property to which
it attaches.
2. What is the doctrine of attractive nuisance?
an attractive nuisance is a dangerous instrumentality or appliance which is
likely to attract children's at play it is one who maintains on his estate or
premises an attractive nuisance without exercising due care to prevent
children from plane therewith or resorting thereto is liable to a child of
tending years was injured there by even if the child is technically a trespasser
in the premises. attractiveness is an invitation to children.
3. What is/are the rule/s in raising the height of a party wall?
TO INCREASE THE HEIGHT OF THE WALL
A. HE DOES THIS AT HIS EXPENSE, INCLUDING THE THICKENING OF THE WALL
ON HIS LAND.
B. HE SHALL INDEMNIFY THE OTHER PARTY OF ANY DAMAGES.
4. Distinguish apparent and non-apparent easement; continuous and discontinuous
easement; and positive and negative easement.
apparent easement this are made known and continually captain view by external
signs that reveal the use and enjoyment of the same. examples are the right of way
when there is an alley or a permanent path.
the non-apparent easements - they show no external indication of their existence.
examples negative is not building two more than a certain height is meant of natural
and subs recent support is meant of intermediate distances also right of way if there
is no visible pass or alley.
continuous easements - their use is incessant or maybe incessant without the
intervention of any act of man. examples: the easement of drainage the right to
support to a beam on another wall.
discontinuous easements - they are used at intervals in depend upon the act of men.
examples: easement of right of way because it can be exercised only if a man passes
or puts his feet over somebody else's land.
Positive easements - here the servient estate is obliged to allow something to be
done on his property or to do it himself. positive is ments are also termed servitudes
of sufferance or intrusion or service because something is done on the servient
estate.
examples: easement of light and view in a party wall, the right of way, duty to cut off
branches extending over the neighboring estates.
negative easements - here the owner of the servient estate is prohibited to do
something which he could lawfully do or it not for the existence of easements.
example: easement of light and view when the window or opening is on one's own
wall or state. negative easements may also be called servitudes of abstention or
limitation or restriction.
5. A made deep excavations on his land near a street for use a dumpsites for his
garbage. There are no devices or structures made to warn people of the existence
of these deep excavations to forestall accidents.
A leased this land to B who came to know of the existence of the excavations,
and is also aware of the danger posed by them. However, B did not do anything to
cover them up nor did he place any protective fence or covering. One day, X,
a passerby, fell into the crater/excavation and got badly injured. Can X hold A
and/or B liable for his sustained injuries? Why or why not?
Any proprietor who intends to make any excavation shall notify all owners of
adjacent lands.
if nuisance will result to injury to another person the provisions of articles 696 2705
allow recovery of damages but in such cases the source of obligation of the person
responsible to pay damages is quasi delict or tort a nuisance is i thought governed
by the rules on tort generally so that as in the case of other towards legal liability for
nuisance is predicated on an invasion of the plaintiff legal rights by an act not
warranted by law or from a neglect of duty imposed by law that results to damage
of another
6. AA was the owner of a big lot in Dagupan Street, Tondo, Manila. On the Southern
portion of the lot was a house with donors and windows overlooking the northern
portion of the lot on which a small house was standing. AA subdivided the lot into
two, and sold the southern portion to BB and the northern portion CC. CC
demolished the small house and obtained a permit to construct a four-storey
building on his portion which would thus obstruct the view from the doors and
windows on BB’s house. BB therefore filed an action to enjoin CC from
constructing his building unless it is at a distance of not less than three meters from
the boundary lines of the two portions. Will the action of BB prosper? Why or why
not?
Gargantos v. Tan yanon page 623. Bali no sagot kasi mag aapply ay Art 624
7. Donna was the owner of an agricultural land with no access to a public road. She
had been passing through the land (pathway A) of Ella with the latter’s consent for
over twenty (20) years. Subsequently, Ella subdivided her property into 20
residential lots and sold a certain lot to Angela which includes pathway A.
In 2013, Angela fenced off her property, thereby blocking Donna’s access to the
national highway. Donna demanded that part of the fence be removed to maintain her old
access route to the highway (pathway A), but Angela refused, claiming that there was
another available highway. Donna countered that pathway B has defects, is circuitous, and
extremely inconvenient to use.
Did Donna acquire an easement of right of way? Explain.
a) Could Angela close the pathway and refuse Donna’s passage? Explain.
b) Over which pathway should Donna establish her right of way? Explain.
8. A drug lord and his family reside in a small bungalow where they sell shabu and
other prohibited drugs. When the police found the illegal trade, they immediately
demolished the house because according to them, it was a nuisance per se that
should be abated. Can the demolition be sustained? Explain.
no, demolition cannot be sustained the house cannot be considered as
nuisance per se. to be considered per se the act occupation or structure must
be a nuisance at all times and under any circumstances regardless of location
or surrounding. since the demolished house was not a nuisance during the
times that it wasn't being used for the selling drugs it cannot be considered as
nuisance per se. moreover in the abatement of a nuisance whether judicially
or extra judicially the abatement should not inflict unnecessary damage or
injury. update the sale of shabu in that community. to demolish the house is
an unnecessary damage and injury.
9. What are the rules on distancing in the planting of trees or shrubs?
1. Tall trees—2 meters from boundary line to center of tree
2. Small trees or shrubs—50 centimeters from boundary line to center of tree
or shrub
10. From time immemorial before the partition of the Hacienda Zobel, the water
coming from the portion of the estate assigned to P had been flowing regularly and
without artificial obstruction towards the other areas of that same hacienda
subsequently assigned to D, as a result to a partition in 1999. However, D, violating
this legal easement in favor of P, constructed in 2008 dikes that obstructed the
natural flow of excess water from P’s higher tenement. P sued for the destruction
of the dikes last September 2020. May the dikes be demolished?
No. the owner cannot construct works that would impede the easement such as a
blocking dam, which would divert the flow and burden another tenement nor can ge
enclose his land by ditches or fences which would impede the flow but may regulate
or control the descent of the water. However, should he really cause an obstruction
as when he builds a dike, the easement may be extinguished by non user and barred
by prescription if the action to destroy the dike is brought only after more than 10
years.
11. Explain the rule on the prohibition on the part of the servient owner not to impair
the use of the servitude.
an easement consists in limited use and enjoyment of the property subjected
to such encumberance but without possession. in other words it gives the
holder of the easement on incorporeal interest on the property but grants no
title. hence the owner of the 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 the easement. for example if an
easement of right of way is established the owner of the servient estate may
do anything on his property as he pleases and the exercise of his right of
enjoyment but he may not enclosed the property because such act will affect
the exercise of the easement.
Expns?
12. On 1 January 1980, Minerva, the owner of a building, granted Petronila a usufruct
over the property until 01 June 1998 when Manuel, a son of Petronila, would have
reached his 30th birthday. Manuel, however, died on 01 June 1990 when he was only
26 years old. Minerva notified Petronila that the usufruct had been extinguished by
the death of Manuel and demanded that the latter vacate the premises and deliver
the same to the former. Petronila refused to vacate the place on the ground that the
usufruct in her favor would expire only on 01 June 1990 when Manuel would have
reached his 30th birthday and that the death of Manuel before his 30 th birthday did
not extinguish the usufruct. Whose contention should be accepted?
PETRONILLA’S CONTENTION IS CORRECT. UNDER ART 606, A USUFRUCT
GRANTED FOR THE TIME THAT MAY ELAPSE BEFORE A THIRD PERSON REACHES
A CERTAIN AGE SHALL SUBSIST FOR THE NUMBER OF YEARS SPECIFIED EVEN
SHOULD THE 3RD PERSON SHOULD DIE UNLESS THERE IS AN EXPRESS
STIPULATION THAT EXPRESS OTHERWISE. IN THE CASE AT BAR THERE IS NO
EXPRESS STIPULATION THAT THE CONSIDERATION FOR THE USUFRUCT IS THE
EXISTENCE OF PETRONILLA’S SON. THUS, GEN RULE AND NOT THE EXCEPTION
SHOULD APPLY IN THIS CASE.
13. Can there be:
a) An easement over a usufruct?
b) A usufruct over an easement?
c) An easement over another easement? Explain.
There can be no is meant over a usufruct. since there is a degree of regularity to
indicate continuity of easement maybe causes rooted only on a corporeal
immovable property no easement may be constituted on a usufruct which is not a
corporeal right.
There can be no usufruct over an easement. While usufruct may be created over a
right such right must have an existence of its own independent of the property. A
servitude cannot be the object of the usufruct because it has no existence
independent of the property to which it attaches.
There can be no easement over another is meant for the same reason an easement
although it is a real right over an immovable it is not a corporeal right there is a
roman maxim which says that there can be no servitude over another servitude.
14. Franz was the owner of Lot E which was surrounded by four (4) lots one of which –
Lot C – he also owned. He promised Ava that if she bought Lot E, he would give her
a right of way in Lot C. Convinced, Ava bought Lot E and, as promised, Franz gave
her a right of way in Lot C. Ava cultivated Lot E and used the right of way granted by
Franz. Ava later found gainful employment abroad. On her return after more than
10 years, the right of way was no longer available to her because Franz had in the
meantime sold Lot C to Julie who had it fenced.
a) Does Ava have a right to demand from Julia the activation of her right of
way? Explain.
b) Assuming Ava opts to demand a right of way from any of the owners of Lots
A, B, and D, can she do that? Explain.
A. YES, AVA HAS THE RIGHT TO DEMAND FROM JULIA THE ACTIVATION OF
THE RIGHT OF WAY FOR THE FF REASONS;
a. The easement of the right of way is a real right which attaches to
and is inseparable from the estate to w/c it belongs
b. The sale of the property includes the easement or servitude even if
the deed of sale is silent on the matter.
c. The vendee of the property in w/c a servitude or easement exists
cannot close or put obstructions thereon to prevent the dominant
estate from using it.
d. Ava’s working abroad for more than 10 yrs should not be
construed as non user, because it cannot be implied from the fact
that she or those she left behind to cultivate the lot no longer use
the right of way.
e. Renunciation or waiver of an easement must be specific, clear,
express and made in a public instrument in accordance of art 1358.
B. YES, AVA HAS THE OPTION TO DEMAND A RIGHT OF WAY ON ANY OF
THE REMAINNG LOTS OF FRANZ MORE SO AFTER FRANZ SOLD THE LOT C
TO JULIA. THE ESSENTIAL ELEMENTS OF A LEGAL RIGHT OF WAY UNDER
649 AND 659 ARE COMPLIED.
15. P had an easement of natural drainage over D’s land, but D obstructed the
easement by constructed the easement by constructing a dam in 2000. P filed an
action to destroy the dam on 2015, on the theory, that the dam was a nuisance and
therefore could never be legalized, and that his action could not prescribe. Is P
correct?
