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PROPERTY
1


Property defined: is any physical or incorporeal entity
capable of becoming the object of a juridical relation.

Property refers to all things which are (already in the
possession of man) or may be (susceptible of
appropriation) the objects of appropriation are considered
as property either as immovable or movable.

Property is not the same as. Things or causas refers
refers to objects which are appropriable or not.
Property is always appropriable.
Appropriation defined: equivalent to occupation; willful
apprehension of a corporeal object which has no owner
with the intent to acquire ownership.

Requisites of property:
1. Utility capable of satisfying human needs (e.g.
food, shelter, and clothing).

2. Individuality/substantivity quality of having
existence apart from any other thing or property
(e.g. parts of the human body may, within the
limits prescribed by law, become property only
when separated from the body of the person to
whom they belong).

3. Appropriability susceptibility of being possessed
by men. Hence, diffused forces of nature in their
totality cannot be considered as property (e.g. air,
lightning).

An object cannot be considered as property because of
PHYSICAL IMPOSSIBILITY (e.g. res communes) or
LEGAL IMPOSSIBILITY (e.g. human body).

Res communes these are common things which are
not capable of appropriation in their entirety (e.g. air,
lightning) although they may be appropriated under
certain conditions in a limited way (e.g. oxygen,
electricity). In case of the latter, they become property.

Res nullius that which has no owner because it has not
yet been appropriated (e.g. hidden treasure, wild animals,
fish in the ocean), or because it has been lost or
abandoned by the owner. It constitutes property as long
as it is susceptible of being possessed for the use of man.

Res alicujus objects already owned or possessed by
men.

THE HUMAN BODY

During lifetime: RULE: it is NOT a property. Hence,
cannot be appropriated. EXCEPTION: within the limits
prescribed by law. R.A.7719 promotes voluntary blood
donation; service contracts (e.g. modeling).

After death: RULE: still, NOT a property by reason of
public policy. Personality of a man demands respect even
after death. EXCEPTION: within the limits prescribed by
law. R.A 349 legalizes permission of use human organs or

1
From SLU reviewer and Balane Notes.
any portion of the human body for medical, surgical, or
scientific purposes under certain conditions; R.A 7170
authorizes the legacy or donation of human organs after
death or for transplant as well as the advancement of
research, medical and dental education and therapy.

CLASSIFICATION OF PROPERTY

According to Nature [Art. 414]
1. Immovable or real property; or
2. Movable or personal property.

According to Character of Ownership
1. Public dominion
2. Private property

According to essential form
1. Incorporeal
2. Corporeal

According to designation
1. Specific
2. Generic

According to susceptibility to substitution
1. Fungible
2. Non-fungible

According to aptitude for repeated use
1. Consumable
2. Non-consumable

According to its susceptibility to division
1. Divisible
2. Indivisible

According to its existence in time
1. Present- res existens
2. Future- res future

According to its dependence
1. Principal
2. accessory

ACCORDING TO NATURE
I. Real by nature

a. Land, buildings, roads and constructions of all
kinds adhered to the soil.

In the case of Lopez vs. Orosa, a theater was constructed
by using lumber. The lumber supplier was not paid. The
lumber supplier was contending his material mans lien
extends to the land. The SC said that the material mans lien
attaches only to the building since a building is an
immovable property by itself.

In Associated Insurance vs. Iya, the SC said that the
chattel mortgage over the house was void since a house is
an immovable and not chattel. On the other hand, in
Tumalad vs. Vicencio, the SC said that the parties may treat
the house as chattel. The SC further added that the
mortgagor is estopped from assailing the validity of the
chattel mortgage over the house.

Disclaimer: This note was the result of pooled present at hand legal resources; hence for omitted topics, it is incumbent upon you to supply the same.
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How do you reconcile the rulings of Associated Insurance
vs. Iya and Tumalad vs. Vicencio? Tumalad applies only if
no 3
rd
parties are prejudiced.

Is it correct to say that Tumalad ruling tells us that a
chattel mortgage over a building is proper? No, it does
not. A chattel mortgage over a building is always improper
since a building is always an immovable. In Tumalad, as
between the parties, the chattel mortgage is enforceable.
The parties are estopped from assailing the validity.

b. Mines, quarries and slag dumps, while the
matter thereof forms part of the bed, and
waters either running or stagnant.

II. Real by incorporation

a. Trees, plants, and growing fruits, while they
are attached to the land or form an integral
part of an immovable. - Growing fruits and crops
are movables in other laws [ex: chattel mortgage
law].

b. Everything attached to an immovable in a fixed
manner, in such a way that it cannot be
separated therefrom without breaking the
material or deterioration of the object. It is
the result which is important. There is no requirement
that the attachment be done by the owner of the
property. The attachment may be done by anyone.

In Board of Assessment vs. MERALCO, the
MERALCO was assessed real property tax on its
electric poles. The theory was that the same are real
property being adhered to the soil. The SC said that
the electric poles are not real property since they can
be removed. Such poles were not attached in fixed
manner. The assessment is invalid.

c. Fertilizer actually used on a piece of land. The
fertilizer is real property since it becomes an integral
part of the soil.

III. Real by destination

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

Requisites for Immobilization
1. It is an object of ornamentation or object of
use.
2. The object is placed on a building or land.
3. The installation was made by the owner of the
building or the land.
4. It is attached in such a manner that it reveals
an intention to attach it permanently.

2. Machinery, receptacles, instruments or
implements intended by the owner of the
tenement for an industry or works which may
be carried on in a building or on a piece of land,
and which tend directly to meet the needs of
the industry or works.
Requisites for Immobilization
1. The object must be either machinery, receptacles,
instruments or implements for an industry or work.
2. The object is installed in a tenement.
3. The installation is by the owner of the tenement.
4. Industry or works are carried on in the tenement.
5. The object carries out directly the industry or work.

In Berkenkotter vs. Cu Unjieng, there was a real estate
mortgage over the sugar central. Additional machinery was
bought to increase the sugar centrals capacity. The SC said
that the additional machinery became immobilized under
Article 415 (5). Thus, the additional machinery is included in
the real estate mortgage.

In Berkenkotter vs. Cu Unjieng, would it have made a
difference if there was no stipulation that the real estate
mortgage would cover future improvements? No, the
improvements would be covered automatically by law as the
same are immobilized. Of course, the parties are free to
stipulate what may be excluded from the mortgage.

In Davao Saw Mill vs. Castillo, the machinery was
installed by the lessee. The contract of lease stated that all
improvements introduced by the lessee except machineries
would belong to the lessor after the expiration of the lease
contract. The SC said that the machinery was not
immobilized under Article 415 (5) since the same was
installed by the lessee and not the owner of the building or
land.

Suppose in Davao Saw Mill vs. Castillo, there was a
provision in the lease contract that the machinery would
pass to the lessor. Would the machinery be immobilized?
Yes, it would since the lessor acts as an agent of the owner
(the owner installs through the agent).

Suppose in Davao Saw Mill vs. Castillo, the lease
contract was silent on whether or not the machinery would
pass to the lessor. Professor Balane is not sure. He thinks
that Article 1678 may be applicable. Under Article 1678, the
lessor upon the termination of the lease shall pay of the
value of the improvements. Should the lessor refuse to
reimburse the improvements, then the lessee may remove
the same even though the principal thing may be damaged.

Article 1678 does not answer when the machinery
becomes immobilized in case the lessor decides to buy it. Is
it immobilized upon installation or upon purchase? Article
1678 is not clear on this.

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

Requisites:
1. The structure is placed by the owner.
2. The installation must be with the intention to have
them permanently attached and forming a part of
it.

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The animals are real property only for as long as they
remain there. Thus, if the pigeons fly out of the pigeon
house, then they are no longer real property.

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

IV. Real by analogy

a. Contracts for public works, and servitudes and
other real rights over immovable property

In contracts for public works, the contract itself is the
real property. For example, the contract to build the
EDSA flyover is real property in itself. In contracts for
private works, the contract is personal property.

Real rights are those rights which are enforceable against
the whole world. (i.e. ownership, possession in concept of
holder, servitude, mortgage).

For a real right to be considered real property, the real
right must be over an immovable property. For example,
the real right of ownership of the land is considered real
property while the real right of ownership over a bag is
considered personal property.

b. Personal or movable - Art. 416. The following
things are deemed to be personal property:
(1) Those movables susceptible of appropriation
which are not included in the preceding article;
(2) Real property which by any special provision of
law is considered as personal property;
(3) Forces of nature which are brought under control
by science; and
(4) In general, all things which can be transported
from place to place without impairment of the
real property to which they are fixed.

Art. 417. The following are also considered as personal
property:
(1) Obligations and actions which have for their object
movables or demandable sums; and
(2) Shares of stock of agricultural, commercial and
industrial entities, although they may have real
estate.

Since Article 415 is exclusive, Articles 416 and 417 are
superfluous.

Shares of stock (even if they shares of stock of Ayala
Land) are always personal property.

NOTE: The terms real property and personal property are
common law terms while immovable property and
movable property are civil law terms.

The distinction between immovable and movable property
is important in mortgages (Lopez vs. Orosa, Associated
Insurance vs. Iya, and Tumalad vs. Vicencio).

The distinction is also important in donations since the
form will be different.


According to Ownership
I. Public Dominion - 2 Kinds of Property of the Public
Dominion
a. Public use anyone can use (i.e., EDSA, Rizal Park)
i. Property for public use may be owned by the
state (Article 420 (1))
ii. Property for public use may be owned by LGUs
political subdivisions (Article 424)

b. Public service not for the general use but for some
state function (i.e., government hospitals, Malcolm
Hall). Only the state may own property for public
service (Article 420 (2) and there is no such thing as
property for public service for LGUs.

NOTE: The term public dominion is a civil law term while
public domain is a common law term. Strictly speaking, they
are not synonymous. Public dominion connotes sovereignty.

Characteristics of Property of the Public Dominion
1. Outside the commerce of man except for purposes of
repairs
2. Not subject to prescription (because outside the
commerce of man)
3. Cannot be levied upon (i.e. execution or attachment)
4. Cannot be burdened by any voluntary easement

In Yakapin vs. CFI, the private lot was eroded by the sea.
It eventually become part of the seabed. The SC said that
the private lot became part of the public dominion since it is
now part of the seabed.

In Government of the Philippines vs. Cabangis, the SC
said that the land was covered by a Torrens title will not
protect the land owner if the land becomes part of the
seabed de facto case of eminent domain.

In Republic vs. CA, the SC said that the land did not
become part of the public dominion. There was only a
temporary inundation. Once the flood had subsided, the land
became dry (see Article 458).

Creeks and forest land form part of the public dominion.

II. Private Ownership - 3 Kinds of Property of Private
Ownership.

a. Patrimonial property of the state - All property of
the state which is not of part of the public dominion is
patrimonial property (Article 421).

Property of public dominion, when no longer intended
for public use or for public service, shall form part of the
patrimonial property of the State (Article 422).

Rulings in Laurel vs. Garcia (Roponggi case)
1. The Roponggi property is property of the public
dominion since it is for public service. - According
to Professor Balane, this has serious implications.
Is it possible for property owned by the
government in a foreign land to become property
of the public dominion? Public dominion connotes
sovereignty. In the case of Roponggi, Japan is
the sovereign authority. In this case the
Philippines is only a private land owner. Japan,
being the sovereign, can expropriate the
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Roponggi property, and the Philippines cannot
refuse. The SC should have answered the
question is it possible for property owned by
the government in a foreign land to become
property of the public dominion.

2. Property of the public dominion cannot be
alienated without it being converted to
patrimonial property. Once the property has
been converted, it is alienable.

3. Roponggi has not been converted to
patrimonial property. Conversion can only take
place by a formal declaration. Such declaration
cannot be implied.

It is not clear if this formal declaration is an
executive or a legislative act.

4. Patrimonial property can be alienated only by
an authority of law (legislature).

b. Patrimonial property of LGUs (political
subdivisions)

c. Patrimonial property of individuals

CASE: LAUREL VS. GARCIA [G.R. No. 92013 July 25,
1990] - Roponggi case
Facts: The government of Japan donated two parcels of
land located in Japan to the government of the
Philippines. The donation is a form of restorative justice to
the Filipinos for the atrocities that the Japanese soldiers
committed to the latter. The said parcels of land are
intended for the Philippines to build its embassy. However,
due to lack of funds, the said property was never
developed and used. Respondents Ramon Garcia as the
head of Asset Privatization Trust, Raul Manglapus, as the
Secretary of Foreign Affairs, and Catalino Macaraig as
executive Secretary want to sell the land, since it is no
longer in use.
Issue: Whether or not the said lots can be sold.
Held: No. The Roppongi property is correctly classified
under paragraph 2 of Article 420 of the Civil Code as
property belonging to the State and intended for some
public service.
Has the intention of the government regarding the use of
the property been changed because the lot has been Idle
for some years? Has it become patrimonial?
The fact that the Roppongi site has not been used
for a long time for actual Embassy service does not
automatically convert it to patrimonial property.
Any such conversion happens only if the property is
withdrawn from public use (Cebu Oxygen and Acetylene
Co. v. Bercilles, 66 SCRA 481 [1975]). A property
continues to be part of the public domain, not
available for private appropriation or ownership
until there is a formal declaration on the part of the
government to withdraw it from being such (Ignacio
v. Director of Lands, 108 Phil. 335 [1960]).
A mere transfer of the Philippine Embassy to Nampeidai in
1976 is not relinquishment of the Roppongi property's
original purpose. Even the failure by the government to
repair the building in Roppongi is not abandonment since as
earlier stated, there simply was a shortage of government
funds. The recent Administrative Orders authorizing a study
of the status and conditions of government properties in
Japan were merely directives for investigation but did not in
any way signify a clear intention to dispose of the properties.
As can be gleaned from the case, in order for a property
public dominion used for public purpose to become
patrimonial property, there must be an express positive act
of the Government converting the property of public
dominion into a patrimonial property. In other words
Congress has to pass a law converting a property of Public
Dominion into a patrimonial property. And once it became a
patrimonial property then it can be the subject of the
commerce of men.

PROPERTY OF LGUs
Art. 423. The property of provinces, cities, and
municipalities is divided into property for public use and
patrimonial property.

Art. 424. Property for public use, in the provinces,
cities, and municipalities, consist of the provincial roads,
city streets, municipal streets, the squares, fountains,
public waters, promenades, and public works for public
service paid for by said provinces, cities, or
municipalities. All other property possessed by any of
them is patrimonial and shall be governed by this Code,
without prejudice to the provisions of special laws.

Properties of LGUs can be classified in two kinds:
1. Property for public use - Property for public use
consist of roads, streets, squares, fountains, public
waters, promenades and public works for public
service paid for by the LGUs (Article 424, 1)

2. Patrimonial property - All other property
possessed by any of them is patrimonial and shall
be governed by the Civil Code, without prejudice to
the provisions of special laws.

NOTE: According to Professor Balane, certain decisions
have eroded Articles 423 and 424.

In Tan Toco vs. Municipal Council of Iloilo, a person
levied on trucks, police cars, police stations. The SC said
that these could not be levied since they were property
for public use. According to Professor Balane, these are
not properties for public use since not every person in
the general public may use them. Following the Civil
Code, they are patrimonial property.

In Zamboanga del Norte vs. City of Zamboanga,
following the Civil Code definition, all but 2 of the lots
(playgrounds) are really patrimonial since LGUs cannot
own property devoted for public service. But that was
not what the SC said.

According to Essential Form
1. Corporeal- those that are palpable.

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2. Incorporeal (i.e., shares of stock, goodwill in a
business)

Note: The distinction is important for areas such as mode
of transfer.

According to Designation
1. Specific - The object is individually determined. For
example, I promise to sell you my car with license plate
PME 208.

2. Generic - The object is determined only as to its kind.
For example, I promise to sell you 1000 kilos of rice.

Note: The distinction is important in legacies and
donations. The distinction is also important in
extinguishing obligations.

According to its Susceptibility to Substitution
1. Fungible- Fungible means that the thing can be
substituted with another thing of the same kind or quality.
This is determined by the INTENT of the parties. For
example, if A borrows a book from B, it may be the
intention of the parties that B return the exact same book
since it has As annotations.

2. Non-Fungible

According to its Aptitude for Repeated Use
1. Consumable - A thing is consumable if according to its
nature; it cannot be used appropriately without being
consumed.

2. Non-Consumable

NOTE: The legal definition of consumable in Article 1933
is wrong. The subject matter of a commodatum may be a
consumable or not. But, it must be non-fungible since the
exact, same thing must be returned. In a mutuum, the
obligor can return a different thing as long as it is of the
same kind and quality.

Art. 1933. By the contract of loan, one of the parties
delivers to another, either something not consumable so
that the latter may use the same for a certain time and
return it, in which case the contract is called a
commodatum; or money or other consumable thing, upon
the condition that the same amount of the same kind and
quality shall be paid, in which case the contract is simply
called a loan or mutuum.

Commodatum is essentially gratuitous. Simple loan may
be gratuitous or with a stipulation to pay interest.

In commodatum the bailor retains the ownership of the
thing loaned, while in simple loan, ownership passes to
the borrower.

According to its Susceptibility to Division
1. Divisible

2. Indivisible - The distinction is important in partition
(either physical or constructive partition)


According to its Existence in Time
1. Present res existens

2. Future [res future] - The distinction is important in sales.
It is also important in donations. A party cannot donate
future things. It is also important in succession. A party
cannot enter into a contract regarding future inheritance.

According to its Dependence
1. Principal
2. Accessory

Importance of distinction: the distinction is important in
sales. When one buys a car, the car should include the
accessories such as the spare tire, the radio, etc. The
distinction is also important in lease contracts.

The general rule is that the accessory follows the principal.
An exception to the general rules is reverse accession
(Article 120, Family Code).

Art. 120. The ownership of improvements, whether for
utility or adornment, made on the separate property of the
spouses at the expense of the partnership or through the
acts or efforts of either or both spouses shall pertain to the
conjugal partnership, or to the original owner-spouse,
subject to the following rules:

When the cost of the improvement made by the conjugal
partnership and any resulting increase in value are more
than the value of the property at the time of the
improvement, the entire property of one of the spouses shall
belong to the conjugal partnership, subject to
reimbursement of the value of the property of the owner-
spouse at the time of the improvement; otherwise, said
property shall be retained in ownership by the owner-
spouse, likewise subject to reimbursement of the cost of the
improvement.

In either case, the ownership of the entire property shall be
vested upon the reimbursement, which shall be made at the
time of the liquidation of the conjugal partnership.

MOVABLE PROPERTY

(1) General Rule: all things which can be transported from
place to place without impairment of the real property
to which they are fixed.

(2) Exclusions: those movables susceptible of
appropriation which are not included in the enumeration
of immovables.

(3) Special: real property which by any special provisions
of law is considered as personalty.

(4) In parts: forces of nature which are brought under
control by science.

(5) Obligations (credits) and actions (replevin) which
have for their object movables (corporeal or
intangible) or demandable sums.
These are really personal rights because they have a
definite passive subject (e.g. intellectual property).

(6) Shares of stocks or interests in juridical entities.

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BAR 1994- CHATTEL MORTGAGE; IMMOVABLES -
Vini constructed a building on a parcel of land he leased
from Andrea. She chattel mortgaged the land to Felicia.
When he could not pay Felicia, the latter initiated
foreclosure proceedings. Vini claimed that the building she
had constructed on the leased land cannot be validly
foreclosed because the building was, by law, an
immovable. Is Vini correct?

SUGGESTED ANSWERS:
a) The Chattel Mortgage is void and cannot be foreclosed
because the building is an immovable and cannot be an
object of a chattel mortgage.

b) It depends. If the building was intended and is built of
light materials, the chattel mortgage may be considered
as valid as between the parties and it may be considered
in respect to them as movable property, since it can be
removed from one place to another. But if the building is
of strong material and is not capable of being removed or
transferred without being destroyed, the chattel mortgage
is void and cannot be foreclosed.

c) If it was the land which Vini chattel mortgaged, such
mortgage would be void, or at least unenforceable, since
he was not the owner of the land. If what was mortgaged
as a chattel is the building, the chattel mortgage is valid
as between the parties only, on grounds of estoppel which
would preclude the mortgagor from assailing the contract
on the ground that its subject-matter is an immovable.
Therefore Vini's defense is untenable, and Felicia can
foreclose the mortgage over the building, observing,
however, the procedure prescribed for the execution of
sale of a judgment debtor's immovable under Rule 39,
Rules of Court, specifically, that the notice of auction sale
should be published in a newspaper of general circulation.

d) The problem that Vini mortgaged the land by way of a
chattel mortgage is untenable. Land can only be the
subject matter of a real estate mortgage and only an
absolute owner of real property may mortgage a parcel of
land. (Article 2085 (2) Civil Code). Hence, there can be no
foreclosure. But on the assumption that what was
mortgaged by way of chattel mortgage was the building
on leased land, then the parties are treating the building
as chattel. A building that is not merely superimposed on
the ground is an immovable property and a chattel
mortgage on said building is legally void but the parties
cannot be allowed to disavow their contract on account of
estoppel by deed. However, if third parties are involved
such chattel mortgage is void and has no effect.

BAR 2003- CHATTEL MORTGAGE; IMMOVABLES- X
constructed a house on a lot which he was leasing from Y.
Later, X executed a chattel mortgage over said house in
favor of Z as security for a loan obtained from the latter.
Still later, X acquired ownership of the land where his
house was constructed, after which he mortgaged both
house and land in favor of a bank, which mortgage was
annotated on the Torrens Certificate of Title. When X
failed to pay his loan to the bank, the latter, being the
highest bidder at the foreclosure sale, foreclosed the
mortgage and acquired Xs house and lot. Learning of the
proceedings conducted by the bank, Z is now demanding
that the bank reconvey to him Xs house or pay Xs loan to
him plus interests. Is Zs demand against the bank valid and
sustainable? Why? 5%

SUGGESTED ANSWER: No, Zs demand is not valid. A
building is immovable or real property whether it is erected
by the owner of the land, by a usufructuary, or by a lessee.
It may be treated as a movable by the parties to
chattel mortgage but such is binding only between
them and not on third parties (Evangelista v. Alto Surety
Col, inc. 103 Phil. 401 [1958]). In this case, since the bank is
not a party to the chattel mortgage, it is not bound by it, as
far as the Bank is concerned, the chattel mortgage, does not
exist. Moreover, the chattel mortgage does not exist.
Moreover, the chattel mortgage is void because it was not
registered. Assuming that it is valid, it does not bind the
Bank because it was not annotated on the title of the land
mortgaged to the bank. Z cannot demand that the Bank pay
him the loan Z extended to X, because the Bank was not
privy to such loan transaction.

ANOTHER SUGGESTED ANSWER: No, Zs demand
against the bank is not valid. His demand that the bank
reconvey to him Xs house presupposes that he has a real
right over the house. All that Z has is a personal right
against X for damages for breach of the contract of loan.
The treatment of a house, even if built on rented land, as
movable property is void insofar as third persons, such as
the bank, are concerned. On the other hand, the Bank
already had a real right over the house and lot when the
mortgage was annotated at the back of the Torrens title.
The bank later became the owner in the foreclosure sale. Z
cannot ask the bank to pay for Xs loan plus interest. There
is no privity of contract between Z and the bank.

ALTERNATIVE ANSWER: The answer hinges on whether
or not the bank is an innocent mortgagee in good faith or a
mortgagee in bad faith. In the former case, Zs demand is
not valid. In the latter case, Zs demand against the bank is
valid and sustainable. Under the Torrens system of land
registration, every person dealing with registered land may
rely on the correctness of the certificate of title and the law
will not in any way oblige to him to look behind or beyond
the certificate in order to determine the condition of the title.
He is not bound by anything not annotated or reflected in
the certificate. If he proceeds to buy the land or accept it as
a collateral relying on the certificate, he is considered a
buyer or a mortgagee in good faith. On this ground, the
Bank acquires a clean title to the land and the house.
However, a bank is not an ordinary mortgagee. Unlike
private individuals, a bank is expected to exercise greater
care and prudence in its dealings. The ascertainment of the
condition of a property offered as collateral for a loan must
be a standard and indispensable part of its operation. The
bank should have conducted further inquiry regarding the
house standing on the land considering that it was already
standing there before X acquired the title to the land. The
bank cannot be considered as a mortgagee in good faith. On
this ground, Zs demand against the Bank is valid and
sustainable.

RIGHTS AS PROPERTY

Property includes not only material objects, but also rights
[although these are merely relations]. However, only rights
which are PATRIMONIAL in nature can be considered as
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property. Otherwise, they are not (e.g. (family rights, right
to life, liberty).

Classification of Rights:
1. Real rights [jus in re]: interest belonging to a person
over a specific thing without a definite passive subject
against whom such right may be personally enforced (e.g.
ownership).

Elements:
a. Ownership of an object by a subject.
b. General obligation of respect, there being no
particular passive subject.
c. Effective actions against anyone who may want
to disturb it.

2. Personal rights [jus in personam/ad rem]: the
power of a person (creditor) to demand from another
(debtor) as a definite passive subject, the fulfillment of the
latters obligation; the right of obligation.
Elements:
a. Subjects consisting of active (creditor-obligee)
and passive (debtor-obligor).
b. There is a particular passive subject who is
bound to observe the obligation.
c. Effective actions against the passive subject.

Note that a person can have REAL RIGHT over an
IMMOVABLE and MOVABLE PROPERTY. It is wrong to
think that real rights are applicable only to immovable
properties. This can be explained by the diagram below.

REAL RIGHTS
1. Ownership
Immovable 2. Possession Movable
1. Real estate 3. Usufruct 1. Chattel
Mortgage [REM 4. Conventional Mortgage 2. pledge
2. Easements on 2 & legal redemption
immovable only 5. Hereditary right
3. Antichrisis
4. Lease for more than 1 year.

Thus, a person who has ownership over an immovable or
movable property has a real right [enforceable against the
whole world] over the property subject of real estate or
chattel mortgage.

RIGHT OF OWNERSHIP

Definition: The independent right of a person to the
exclusive enjoyment and control of a thing including its
disposition and recovery subject only to the restrictions
established by law and the rights of others.

In Roman Law, ownership was an absolute right.
Ownership is evolving in light of social justice, police
power in order to promote the welfare of the people and
environmental concerns. Now, we have concepts such as
stewardship. Now, one must comply with safety and
environmental regulations. Now, building permits are
required.

Objects: Ownership may be exercised over THINGS or
RIGHTS.


Characteristics of Ownership
1. General: the owner has the right to enjoy and
dispose of a thing, without other limitations than
those established by law. The owner has also a right
of action against the holder and possessor of the
thing in order to recover it. [Art. 428]

The owner may use the thing in all its possibility
subject to restrictions. For example, an owner is not
limited in using a bag merely as a place where goods
are kept. The owner may use the bag as a hat.

2. Independent - Ownership can exist even without
any other right.

3. Abstract - The right of ownership exists distinctly
from its constituent or component parts (i.e. ius
accessions, ius abutendi, etc).

4. Elastic - The component rights can be reduced or
given to others (i.e. usufruct the right to enjoy the
fruits).

5. Exclusive - There can only be 1 ownership at one
time. In co-ownership, there is only 1 ownership,
but this is shared ownership.

6. Generally Perpetual - Ownership is generally not
limited as to time unless there is stipulation to the
contrary.

Ownership is inherently unlimited, but it is not
necessarily so. Ownership can be restricted. These
restrictions on ownership may be imposed by the
State or by juridical transactions (i.e. contract). In
several cases, the SC has upheld the validity of deed
restrictions with regard to how buildings are to be
constructed.

Attributes of ownership:
1. Right to enjoy includes right to use and enjoy (jus
utendi), right to the fruits (jus fruendi), right to
accessories (jus accessiones) and right to consume by
use (jus abutendi), within the limits prescribed by
law; includes the right to exclude any person from the
enjoyment and disposal thereof.

Jus accessiones: The ownership of property gives
the right by accession to everything which is
produced thereby, or which is incorporated or
attached thereto, either naturally or artificially.

Right to possess: the right to hold a thing or enjoy
a right; It may be exercise in ones own name or in
the name of the other; possession may be in the
concept of an owner or a mere holder with the
ownership pertaining to another; right to possess
does not always include the right to use.

It suffices that a legal manifestation to possess the
property either through oneself or another.

2. Right to dispose (jus disponendi) the power of
the OWNER to alienate, encumber, transfer and even
destroy the thing owned, totally or partially, within
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the limits prescribed by law; includes right not to
dispose.

3. Right of action (jus vindicandi) given by the law
to the person whose property has been wrongfully
taken from him against any person unlawfully
detaining it even if the possession of the latter has
been legalized by conveyance, either to recover
damages or the possession of the property; the
right of action can be transferred.

However, the person who claims the he has a
better right to the property must prove (burden of
proof) his title thereto. Accordingly, a person in
peaceful possession of property must be respected
in his possession until a competent court rules for
his ouster.

LIMITATIONS ON THE RIGHT OF OWNERSHIP
1. Those imposed in general by the State in the
exercise of the power of taxation, police power, and
power of eminent domain.
2. Those imposed by law such as legal easements and
the requirement of legitime in succession.

3. Those imposed by the grantor of the property on
the grantee, either by contract or by last will.

4. Those imposed by the owner himself, such as
voluntary easement, mortgage, pledge and lease.

If the prohibition is to alienate the property is
perpetual, it is considered as void. The maximum
period of inalienability, when imposed by will, is 20
years, unless a fideicomissary substitution has been
established. The same principle, by analogy, can
apply to any other gratuitous disposition such as
donation, unless the donor provides for reversion
(Art. 757), in which case, a longer period may be
allowed.

In mortgage contracts, a stipulation forbidding
the owner from alienating the property mortgaged
is void (Art. 2130).

Where the stipulation on inalienability is
valid, the property is NOT subject to attachment.
Otherwise, the prohibition to alienate would be
illusory.

Stipulations limiting the rights of owners as
embodied in a restrictive covenant.

5. Those arising from conflicts of private rights such
as those which take place in accession continua or
those caused by contiguity of property.

6. Prohibition against the acquisition of private lands
by aliens.

Evidence to prove ownership: ownership may be
proved by any evidence admissible in law.
a. Torrens title.
b. Title from the Spanish Government.
c. Patent duly registered in the Registry of Property
by the grantee.
d. Deed of sale.
e. Long possession.

Tax declarations are not conclusive proof of ownership.
However, when coupled with possession for a period
sufficient for prescription, they become strong evidence of
ownership. Also, the failure of a person to declare land for
taxation may be admitted to show that he is not the owner
thereof.

DISPUTABLE PRESUMPTION OF OWNERSHIP
Requisites:
1. There must be actual (physical or material)
possession of the property.
2. The possession must be under claim of ownership.

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

ACTIONS FOR POSSESSION

PERSONAL PROPERTY
Recourse: Replevin, to be filed within 4 years from
dispossession in case there is good faith or 8 years
from dispossession of bad faith on the part of the
possessor of the property.

REAL PROPERTY
1. Accion Interdictal [Ejectment cases]
a. Forcible entry A person deprived of the
possession of any land or building by force,
intimidation, stealth, threat and strategy (FISTS).

b. Unlawful detainer Any landlord, vendor,
vendee or other person against whom the
possession of any land or building is unlawfully
withheld after the expiration or termination of the
right to hold possession by virtue of any contract,
express or implied.

Period to file action:
Forcible entry- Within 1 year after such unlawful
deprivation or withholding of possession, or upon
the discovery of FISTS. No demand is necessary in
a forcible entry case.

Unlawful detainer- it is to be filed within 1 year
commencing from the time of last formal demand
(oral or written; direct or indirect) to vacate. No
demand is necessary for a lessee to vacate when it
is specifically provided for in the agreement.

Prayer: for the restitution of possession, with
damages and costs. However, the only damages that
can be recovered in an Ejectment suit are the fair
rental value or the reasonable compensation for the
use and occupation of the real property. Other
damages must be claimed in an ordinary action.

The defendant, however, may set up a counterclaim
for moral damages and recover it if it is within the
jurisdiction of the court.

Jurisdiction: MTC (summary procedure). Whatever
the amount of plaintiffs damages will not affect the
courts jurisdiction.
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Issue: Physical possession. The decision in such
action is res judicata in the question of possession.
Sub-lessees are bound by the judgment rendered
against the lessee in an ejectment case even if they
were not made parties thereto.

However, relative to ejectment case is the principle
of tacita reconduccion [implied/tacit lease] -
wherein the renewal of the lease is based on the
mode of payment of the lease, whether daily,
monthly or yearly.

2. Accion publiciana [plenary action]: whenever the
owner is dispossessed by any other means (e.g.
possession is due to tolerance of the owner) other
than FISTS, he may maintain this action to recover
possession without waiting for the expiration of 1
year before commencing this suit. It may also be
brought after the expiration of 1 year if no action had
been instituted for forcible entry or unlawful detainer.

3. Accion reinvindicatoria: action for recovery of
dominion over the property as owner.

Two things must be proved in an accion
reivindicatoria:
1. The identity of the property
2. Plaintiffs title to it

This action should be filed in case of refusal of a party
to deliver possession of property due to an adverse
claim of ownership.

A suit to recover possession of a parcel of land as an
element of ownership is a reinvindicatory action.

If the land is registered then pray for conveyance to
prevent splitting causes of action.

In an action for conveyance, the register of deeds
must be impleaded as a party thereto.

4. Writ of possession: A writ of possession is improper
to eject another from possession except in the
following cases:
a. After the land has been registered under the
Torrens system of registration.
b. Extrajudicial foreclosure of mortgage.
c. Judicial foreclosure of mortgage provided that
the mortgagor has possession and no 3
rd
party
intervened.
d. Execution sales.

5. Writ of injunction: injunction is not a proper
remedy for the recovery of possession. But where the
plaintiff is admittedly the owner of the property, and
is in possession thereof, he is entitled to the equitable
remedy of injunction to prevent or restrain acts of
trespass and illegal interference by others with the
possession of the property.

RIGHT TO ENCLOSE OR FENCE: Every owner may
enclose or fence his land or tenements by any reasonable
means subject to the right of others to existing servitudes
imposed on the land or tenement.
RIGHT TO SPACE, SUBSOIL, AND SURFACE RIGHTS
OF A LAND OWNER: The owner of a parcel of land is the
owner of its surface and of everything under it, and he can
construct thereon any works or make any plantations and
excavations which he may deem proper, without detriment
to servitudes and subject to special laws and ordinances. He
cannot complain of the reasonable requirement of aerial
navigation.

Economic utility: The right of the landowner extends to
the space and subsoil as far as necessary for his practical
interests, or to the point where it is possible to assert his
dominion; beyond these limits, he would have no legal
interest.

The right of the owner of a parcel of land to construct any
works or make any plantations and excavations on his land
is subject to:
a. Existing servitudes or easements.
b. Special laws.
c. Local ordinances.
d. The reasonable requirements of aerial navigation.
e. Rights of third persons.

REGALIAN DOCTRINE: All minerals and other natural
resources found either in public or private lands are owned
by the State.

OBLIGATION TO RESPECT THE RIGHTS OF OTHERS:
The owner of a thing cannot make use thereof in such a
manner as to injure the rights of a 3
rd
person.

This is based on the police power of the State.

It does not apply where the owner of a thing makes use
of it in a lawful manner for then it cannot be said that the
manner of the use is such as to injure the rights of a third
person.

PRINCIPLE OF SELF HELP

Who may avail? The owner or lawful possessor of a
thing.

Right involved: RIGHT TO EXCLUDE any person from the
ENJOYMENT and DISPOSAL thereof.

Self-help: For this purpose, he may use such force as may
be reasonably necessary to repel or prevent an actual or
threatened UNLAWFUL physical invasion or usurpation of his
property.

Requisites of self-help:
1. Owner must be lawful possessor.
2. Owner must use only reasonable force.
3. There must be actual or imminent threatened physical
invasion or usurpation of the property and life of the
owner.
4. Can only be exercised at the time of an actual or
threatened dispossession or immediately after the
dispossession has taken place.

The actual invasion of property may consist of a mere
disturbance of possession or of real dispossession. In the
first case, the force may be used as long as the disturbance
continues. In the second case, the force to regain
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possession can be used only immediately after the
dispossession. Once the usurpers possession has become
firm by lapse of time, the lawful possessor must resort to
the competent authority to recover his property.

The principle of self defense in the RPC covers not only
defense of a mans person but also extends to his rights
including the right of property.

Self-help doctrine is MODIFIED by the principle of
state of necessity, and the condemnation of
property through the exercise of State powers
(eminent domain and police power). State of
necessity prevails over the principle of self-help.

STATE OF NECESSITY- The owner of a thing has no
right to prohibit the interference of another with the
same, if the interference is necessary to avert an
imminent hanger, and the threatened damage, compared
to the damage arising to the owner from the interference,
is much greater.

Right of the owner: Demand from the person benefited
indemnity for the damage to him.

Exception: Tolentino If the owner of the property
causing the danger would have been responsible for
damages if the danger had not been averted (e.g. to
prevent inundation, demolition of a dam constructed
without authority. The owner of the dam need not be
indemnified).

Requisites:
1. The interference is necessary.
2. The damage to another is much greater than
the damage to the property.

The seriousness or gravity of the danger must be much
greater than the damage to the property affected or
destroyed by the protective act.

Danger to life is always greater than damage to
property.

If through an error, one believed himself to be in a
state of necessity, or used excessive means, his act would
be illicit, and the owner of the property can use the
principle of self-help.

The law does not require that the person acting in a
state of necessity be free from negligence in the creation
of the threatened danger.

EXERCISE OF STATE POWERS

EMINENT DOMAIN: No person shall be deprived of his
property except by competent authority and fro public use
and always upon payment of just compensation.

Should this requirement be not complied with, the courts
shall protect and, in proper cases, restore the owner in his
possession.

POLICE POWER: When any property is condemned or
seized by competent authority in the interest of health,
safety or security, the owner thereof shall not be
entitled to compensation, unless he can show that such
condemnation or seizure is unjustified.

Requisites:
1. The interest of the public in general, as distinguished
from those of a particular class, requires such
interference.
2. The means employed are reasonably necessary for
the accomplishment of a purpose, and not unduly
oppressive upon individuals.

RIGHTS TO HIDDEN TREASURE

Concept: Treasure consists of money, jewels, or other
precious objects which are hidden and unknown, such that
their finding is a real discovery.

Rules:
a. The treasure belongs to the owner of the land if he is
the finder.

b. The finder is entitled to 1/2 if he is not the owner of
the land, provided the discovery is by chance.

c. If the finder is a trespasser, he shall not be entitled to
any share of the treasure.

d. If the things found be of interest to science or the
arts, the State may acquire them at their just price,
which shall be divided equally among the land owner
and the finder.

By chance means by good luck; there must be no
purpose or intent to look for treasure. If it does, the finder,
who is not the land owner, becomes a trespasser.

The Code Commission do not preclude a finder who hunts
for hidden treasure; But the one who looks for hidden
treasure on the property of another should have the latters
permission, since a trespasser is not entitled to any share in
the hidden treasure he may find.

If the land owner gave his permission to the treasure
hunter, the latter is entitled to 1/2 because this is still a case
of by chance.

The rule is different if the finder is unaware of the hidden
treasure and he was commissioned by the land owner to
look for treasure. If the finder was so ordered by the owner,
his only right is to be paid his salary, unless a contrary
intention appears in the agreement.

If the finder is a lessee or usufructuary, the latter gets 1/2;
if found by another person other than the lessee or
usufructuary, 1/2 goes to him and 1/2 goes to the owner of
the property on which it was found.

With respect to the term other precious objects it would
refer only to movables which are similar to money or jewelry
(ejusdem generis rule); they include things of interest to
science or the arts.

The deposit must be hidden and unknown, since if the
treasure is purposely hidden, the owner may recover it from
the finder unless he has abandoned the property or
considered it lost without hope of ever finding it.
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Where the things discovered do not qualify as hidden
treasure, the rules on occupation would apply.

RIGHT OF ACCESSION

Definition: The right of the owner of a thing, real or
personal, to become the owner of everything which is
produced thereby, or which is incorporated or attached
thereto, either naturally or artificially.

Accession is not a mode of ownership. It is a mere
concomitant right of ownership. It is a mere incident or
consequence of ownership.

ACCESSION ACCESSORY
The fruits of, or additions
to, or improvements
upon, a thing (the
principal) in its three
forms of building,
planting and sowing.
Things joined to, or
included with the principal
thing for the latters
embellishment, better use,
or completion.
Not necessary to the
principal thing.
The accessory and the
principal must go together.
Both can exist only in relation to the principal.

Since the law itself gives the right, accession may, in a
sense, be considered as a mode of acquiring property
under the law.

KINDS OF ACCESSION

1. Accession discreta extension of the right of
ownership to the products of a thing.

Based on the principle of justice for it is only just
that the owner of a thing should also own whatever
it produces.

Divisions: Natural fruits, industrial fruits, and civil
fruits.

2. Accession continua the acquisition of ownership
over a thing incorporated to that which belongs to
the owner.

Based on convenience, necessity and utility, for it
is more practical that the owner of the principal
should also own the accessory instead of a co-
ownership.

a. With respect to real property, it may either
be.
i. Accession industrial (building, planting,
sowing).
ii. Accession natural (alluvium, avulsion/by
force of river, change of river course, and
formation of islands).

b. With respect to personal property, it may
be:
i. Conjunction or adjunction.
ii. Commixtion or confusion.
iii. Specification



Basic principles on accession:
a. The owner of a property owns the extension or
increase thereto.
b. Accesoria sequitor principalia [Accessory follows the
principal.
c. The incorporation of the accessory with the principal
is effected only when two things are so united that
they cannot be separated without injuring or
destroying the juridical nature of one of them.

ACCESSION DISCRETA
RIGHT OF OWNER TO THE FRUITS

Fruits: include all the products of things, the benefits from
rights, and the advantage derived from the use of a thing.

Divisions: Natural fruits, industrial fruits, and civil fruits.

General rule: All fruits belong to the OWNER of a thing.

The fruits may either be in the form of damages suffered
by the owner of a land.

Exceptions:
a. Possessor in good faith.
b. Usufructuary.
c. Lessee.
d. Pledgee.
e. Creditor in Antichresis.

KINDS OF FRUITS
Natural fruits:
a. The spontaneous products of the soil.
b. The young and other products of the soil.

Under the rule partus sequitur ventrem, to the owner of
female animals would also belong the young of such animals
although this right is lost when the owner mixes his cattle
with those of another.

The young of animals becomes an accession if they are
already apparent in the womb or upon birth.

Industrial fruits The products of lands of any kind which
are produced through cultivation or labor.

Standing trees are not fruits since they are considered
immovables although they produce fruits themselves.
However, they may be considered as industrial fruits when
they are cultivated or exploited to carry on an industry.

Civil fruits- all passive incomes derived from property, such
as-
a. Rents of buildings.
b. Prices of leases (rents) of lands and other property
(including movables).
c. Amount of perpetual or life annuities or other similar
income.

Payment of Expenses: He who receives the fruits has the
obligation to pay the expenses made by a third person in
their production, gathering and preservation.

Expenses covered:
a. Dedicated to the annual production, and not for the
improvement of the property.
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b. Not unnecessary, excessive, of for pure luxury.
c. Required by the condition of the work or the
cultivation made.

This rule may apply where the owner of the property
recovers the same from a possessor who has not yet
received the fruits although they may have already
gathered or harvested.

The rule is in keeping with the principle on unjust
enrichment.

EFFECT OF BAD FAITH ON THE FRUITS:
a. If the fruits have not yet been gathered at the time
the owner recovers possession from a possessor in
bad faith, he does not have to pay for production
expenses since a possessor in bad faith loses that
which has been planted or sown, without right to
any indemnity whatsoever, except for necessary
expenses of preservation.

The land owner acquires the fruits by accession.

b. If the fruits are already severed or gathered, and
are ordered turned over to the owner of the land by
the possessor in bad faith, the latter is entitled to
be reimbursed and may deduct his expenses of
cultivation, gathering and preservation.

Even where such expenses exceed the value of
the fruits, the owner must pay the expenses just
the same because the law makes no distinction.

Moreover, he who is entitled to the benefits and
advantages must assume the risks and losses, the
owner, however, may free himself of the expenses
by permitting the possessor to complete the
harvesting and gathering of the fruits for him.

POSSESSION LEGALLY INTERRUPTED
1. Service of summons
2. Acknowledgment of the better right of the plaintiff
3. Fortuitous event

From the moment the possession is interrupted, the
possessor is not considered in bad faith.

Right of Concession- this right is exercise only by the
land owner. It contemplates that the expenses of
landowner is set-off against his share in the fruits. If the
possessor refuses such arrangement then the possessor
shall not be entitled to the payment of expenses but the
landowner is entitled to the fruits.

WHEN NATURAL AND INDUSTRIAL FRUITS
DEEMED TO EXIST: Only such as are manifest or born
are considered as natural or industrial fruits. With respect
to animals, it is sufficient that they are in the womb of the
mother, although unborn.

Civil fruits are easily prorated for they are deemed to
accrue daily and belong to the possessor in good faith in
that proportion.



ACCESSION CONTINUA [INDUSTRIAL]
IMMOVABLE PROPERTY

BUILDING, PLANTING, SOWING

General Rule: Whatever is built, planted or sown on the
land of another and the improvements or repairs made
thereon belong to the owner of the land.

The owner of the land must be known, otherwise no
decision can be rendered on the ownership of the thing
planted, built or sown until a hearing shall have been
accorded to whosoever is entitled thereto.

Presumption: All works, sowing, and planting are
presumed made by the owner and at his expense, unless
the contrary is proved.
a. The works were made by the owner based on
positive law; a land naturally has an owner and the
law accordingly presumes that he made the works,
sowing or planting.

b. They were made at the owners expense as a
general rule. It cannot be said that one who builds,
plants or sows on anothers land will do so at his
expense but for the benefit of the owner; hence, it
must be presumed that what is built, planted or sown
is done at the expense of the owner although the one
who did so was a third person.

ARTICLE 447 - Landowner is the
builder/planter/sower and is using the materials of
another

Landowner/builder/so
wer/planter
Owner of the materials
Good faith

1. Landowner can acquire
the materials provided he
pays for the value thereof.
2. To demand the owner
of materials to remove the
same if it will not cause
damage thereto.

If choice no. 2 is not
possible then the
landowner have to choose
no. 1

Note: landowner will be
the first one to exercise
the option.
Good faith

Has the:
1. right to receive the
payments for value of the
materials; OR
2. limited right of removal
if there would be no injury
to work constructed, or
without plantings or
constructions being
destroyed.
Bad faith

Can acquire the materials
provided he pays the
value thereof plus
damages.
Good faith

Has the:
1. right to receive payment
for value of materials plus
damages; OR
2. Absolute right of
removal of the work
constructed in any event
[whether or not substantial
injury is caused] plus
damages.
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Good faith

Can acquire materials
without paying for the
value thereof and entitled
to consequential damages
due to the defects of the
materials.
Bad Faith

Loses the materials
completely without
receiving any indemnity.
Bad faith Bad faith

Treat as if both are in good faith.

Landowner/builder/ planter/ sower is in good faith
if he believes that the land belongs to him and he is
ignorant of any defect or flaw in his title and he does not
know that he has no right to use such materials. But when
good faith is coupled with negligence, he is liable for
damages.

Landowner/ builder/sower/planter is in bad faith if
he makes use of the land or materials which he knows
belong to another.

The owner of the materials is in good faith if he did
not know that another was using his materials, or granting
that he did know, if he informed the user of the ownership
and made the necessary prohibition.
The owner of the materials is in bad faith if he allows
another to use the materials without informing him of the
ownership thereof.

Indemnification for damages shall comprehend not only
the value of the loss suffered but also that of the profits
which the obligee failed to realize.

Problem: may the landowner- builder/planter/sower
choose to return the materials instead of reimbursing their
value even without the consent of the owner of the
materials?

It depends:
1. If no damage has been made to the materials, or
they have not been transformed as a result of the
construction, they may be returned at the land
owners expense.

2. If damage has been or there has been
transformation, they cannot be retuned anymore.

Problem: suppose the landowner- builder/sower/planter
has already demolished or removed the plantings,
constructions or works; is the owner of the materials still
entitled to claim them?

There are different opinions on this matter but the best
rules seems to be that the owner of materials is still
entitled to get them since the law makes no distinction.
Moreover, the landowner may insist on returning them for
evidently there is no accession.






ARTICLE 448- builder/planter/sower builds, plants,
or sows on anothers land using his own materials.

Land owner Builder/planter/sower
is the owner of the
materials
Good faith- has the
option to:
1. To appropriate or
acquire whatever has
been built, planted or
sown after paying
indemnity which includes
necessary expenses and
useful expenses; OR

2. To obligate the
builder/planter to pay the
price of the land and the
sower to pay the proper
rent.

However, the landowner
cannot obligate the
builder/planter to buy if
the value of land is more
than the building or
planting.

The LO has the primacy of
choice. These options are
preclusive in the sense
that the LO have to
choose only one and his
choice must be
communicated to the BPS-
OM.

Value of indemnity: fair
market value of the
improvements and not
construction cost.

It is only the
improvements that are to
be paid and does not
include the land since the
land owner owns the land.

If the landowner
cannot pay the value of
the improvements, can
he be evicted
therefrom? Although
under the law there was a
contract to sell. Payment
of the price is a positive
suspensive condition. This
implies that the
possession of the BPS-OM
of the property is merely
tolerated by the LO. Thus,
ejectment proceeding is
sufficient to oust the BPS-
OM if he does not pay the
value of the land.
Good faith- entitled to
received indemnity for
necessary, useful, and
luxurious expenses [if the
landowner appropriates the
luxurious improvements]
and has the right of
retention over the land
without having to pay for
the rent until the land
owner pays the indemnity.

Can remove useful
improvements provided it
does not cause any injury.

If the landowner does not
appropriate the luxurious
improvements, he can
remove the same provided
there is no injury to the
principal thing.

To purchase the land at fair
market value when the
value is not considerably
more than the value of the
value of the building or
trees.

If the value of the land is
considerably more than the
value of the building or
trees, he cannot be
compelled to buy the land;
in such case, he shall pay
reasonable rent if the land
owner does not choose
option 1.

The rental shall be agreed
by the parties and if they
cannot agree then the court
shall fix the same.

If he cannot pay the
purchase price of the land,
the landowner can require
him to remove what has
been built or planted.

If he cannot pay the rent,
the landowner can eject
him from the land.
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The landowner cannot be
evicted since he owns the
land. The value of the
property becomes an
ordinary debt of the
landowner to the BPS-OM.
1.
Bad faith-
1. To acquire whatever
has been built, planted or
sown by paying the
indemnity plus damages.

2. No right to sell the
land.
Good faith-
1. If landowner acquires
whatever has been built,
planted or sown, he must
be indemnified of the value
plus damages.

2. If the landowner does
not acquire, he can remove
whatever has been built or
planted whether or not it
will cause any injury and is
entitled to damages.

If landowner does not
acquire, he cannot insist on
purchasing the land.
Good faith- has the
option to:
1. To acquire whatever
has been built, planted or
sown without paying for
indemnity except
necessary expenses for
the preservation of the
land only and luxurious
expenses if he decides to
acquire the luxurious
ornaments plus damages.

2. To compel the
builder/planter to pay the
price of the land and the
sower to pay the proper
rent plus damages
[regardless of the value of
the land]

3. To demand the
demolition or removal of
the work at the expense
of the builder/planter/
sower.
1.
Bad faith-
1. Loses what has been
built, planted or sown.

Entitled to reimbursement
for necessary expenses for
the preservation of the land
but has no right of
retention.

2. Not entitled to
reimbursement of useful
expenses and cannot
remove useful
improvements even if the
removal will not cause any
injury.

Not entitled to
reimbursement for
luxurious expenses except
when the landowner
acquires the luxurious
improvements, the value of
which is the one at the time
the landowner enter
possession [the depreciated
value].
3. Can remove luxurious
improvements if it will not
cause injury and landowner
does not want to acquire
them.

Must pay the price of the
land or the rent plus
damages.

Must remove luxurious
improvements if it will not
cause injury and landowner
does not want to acquire
them.
Bad faith Bad faith
Treat as if both are in good faith.

In applying Article 448 the landowner if in good faith should
be given the first option because he is the owner of the land
especially if he is dealing with a person in bad faith. His right
is older and by the principle of accession, he is entitled to
the ownership of the accessory thing.

The landowner is in good faith:
1) If he is ignorant of the builder/planter/sowers act.
2) Even if he did know, he expressed his objection
3) If he believed that the builder/planter/ sower has a
right to construct, plant or sow.

Otherwise, he shall be in good faith.

The builder/planter/sower is in good faith if he thought that
the land was his.

CASES WHERE ARTICLE 448 DOES NOT APPLY:
1. Lease with improvements- there is a separate
provision in the case of lease.

2. the owner of the land is the builder and losses
the land through auction of donation- Article 448
contemplates two parties, the builder must not be the
owner of the land and the owner of the land.

3. Co-owner of an aliquot- the owner and the builder
are the same person.

4. usufruct- usufructuary cannot remove useful
improvements or expenses for mere pleasure unless there
is no damage to the property.

5. The owner constructs a building in his own land
and sold the land to another- the owner of the land is
in bad faith and the buyer also of the land knows the bad
faith.

6. Things that are not built in it permanent nature.

7. Belligerent occupation- no application of 448
especially if the owner of the land is the government.
Exception: if the government and not the belligerent
occupant that allows the builder to improve the land, the
government is estopped if it contest the occupation of the
land.

GOOD FAITH MAY CO-EXIST WITH NEGLIGENCE: A
party guilty of negligence, irrespective of his good faith, shall
be liable for the damage done in accordance with the rule
on culpa aquiliana or quasi delict.








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BUILDER/PLANTER/SOWER BUILDS, PLANTS, OR
SOWS ON ANOTHERS LAND WITH MATERIALS
OWNED BY THIRD PERSON.

Land owner Builder/Planter
/Sower
Owner of the
materials
Good faith-
has the option-
1. to acquire
whatever has
been built,
planted or
sown provided
he pays the
indemnity
[which
includes the
value of what
has been built,
planted or
sown plus
value of
materials]; OR
2. to oblige
the
builder/planter
/owner to buy
the land unless
the value
thereof is
considerably
more than the
value of the
building or
trees
Good faith-

1. To receive
indemnity from
the landowner and
has a right of
retention over the
land until the land
owner pays;

2. To buy the
land.
Good faith-

1. To receive
indemnity from
the
builder/planter/so
wer who is
[principally/prima
rily liable. If the
builder/ sower/
planter is
insolvent, then
demand
indemnity from
landowner who is
subsidiarily liable.
But has no right
of retention
against the
builder/planter/
sower and more
so with the land
owner.

2. To receive
indemnity from
the
builder/planter/so
wer only. The
landowner has no
subsidiary
liability. But has
right of retention;

OR

3. To remove
materials if there
will be no injury
on the building or
trees

AND

Has material rent
lien against the
builder/planter/so
wer for the
payment of the
value of the
materials.

Cannot claim
from LO if LO
sold the land to
BPS.
Good faith-
has the option
1. To acquire
Good faith-

To receive
Bad faith-
whatever the
choice of the
whatever has
been built,
planted, or
sown provided
he pays the
indemnity
[which
includes the
value of what
has been built,
planted or
sown plus
value of the
materials.]

2. To oblige
the builder/
planter/ sower
to buy the land
unless the
value thereof
is considerably
more than the
value of the
building or
tress.
indemnity from
the land owner
and has a right of
retention over the
land until the land
owner pays.

To buy the land.
landowner:
1. he losses the
materials in favor
of the
builder/sower/pla
nter;

AND

2. He has no
right to receive
indemnity from
the BPS.
Good faith-
has the option
1. To acquire
whatever has
been built,
planted or
sown without
paying
indemnity
except
necessary
expenses, if he
should acquire
luxurious
improvements.
2. To oblige
the
builder/planter
to pay the
price of the
land and the
sower to pay
the proper
rent.
3. To demolish
or remove
what has been
built or
planted.
Bad Faith-

Losses what has
been built, planted
or sown but he is
entitled to be
indemnified for
necessary
expenses should
the land owner
acquire luxurious
ornaments.

Has no right of
removal even if it
will not cause any
injury.

To pay the price
of the land.

Cannot do
anything about it
so he must
remove.
Bad faith-

[Since both
builder/planter/so
wer and the
owner of the
materials are in
bad faith, treat
them as if both in
good faith.]

Whatever is the
choice of the land
owner, he has
the right to
receive indemnity
for the value of
the materials
from the
builder/planter/so
wer only. The
owner of the
materials has no
subsidiary liability
whatsoever.

If the landowner
chooses option 1,
he has no right to
remove materials
even if there will
be no injury.

If the landowner
choses option 2,
he has the right
of removal
provided it does
not cause any
injury to the
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property to which
it is attached.
Has liability for
damages to
whoever ends up
owning the
building for the
inferior quality of
materials.
Bad faith- to
acquire what
has been built,
planted or
sown by
paying the
indemnity plus
damages to
builder/planter
/sower.
Good faith-

To receive
indemnity from
landowner plus
damages.

Cannot insist on
purchasing the
land.
Good faith- to
receive indemnity
for value of
materials from
builder/planter/so
wer principally or
from land owner
in case the
builder/planter/so
wer is insolvent
[subsidiary
liability].
Bad faith- to
acquire what
has been built,
planted or
sown by
paying the
indemnity plus
damages to
builder/planter
/sower.
Good faith-

To receive
indemnity from
landowner plus
damages.

Cannot insist on
purchasing the
land.
Bad faith- no
right to receive
indemnity for
value of materials
neither from
builder/planter/so
wer nor from
landowner who
end up owning
the building or
trees.

If the option is with the land owner (i.e., to buy the
improvement or sell the land), the land owner cannot
refuse to exercise that option. The court may compel the
land owner to exercise such option.

If the land owner opts to buy the improvements
from the builder/planter/sower, the land owner must
pay the value of the builder/planter/sower.
Builder/planter/sower has the right of retention until the
land owner pays.

If the land owner chooses to buy the improvement,
the builder/planter/sower can sue to require the land
owner to pay him. The obligation has now been converted
to a monetary obligation.

There is no transfer of ownership of the improvements
until the land owner pays the builder/planter/sower.

In Ortiz vs. Kayanan the SC said, All the fruits that the
builder/planter/sower may receive from the time that he is
summoned, or when he answers the complaint, must be
delivered or paid by him to the owner or lawful possessor.
Such is the time when his good faith has ceased. While
the builder/planter/sower retains the property until he is
reimbursed for necessary and useful expenses, all the
fruits the BPS receives from the moment his good faith
ceases must be deferred or paid by him to the land owner.
The builder/planter/sower may, however, secure the
reimbursement of his expenses by using the fruits to pay
it off (deduct the value of the fruits he receives from the
time his good faith ceases from the reimbursement due
him).
Professor Balane doesnt agree with the ruling in Ortiz vs.
Kayanan. It seems inconsistent to say that the
builder/planter/sower retains ownership of the improvement
until he is paid yet the fruits derived from such improvement
should go to the land owner.

If the land owner chooses to sell the land to the
builder/planter, the builder/planter will have to pay the value
of the land based on the prevailing market value at the time
of payment.

If the land owner chooses to sell the land and the
builder/planter is unable or unwilling to pay, the Land owner
has 3 options:
1. Assume a lessor-lessee relationship; or
2. Land owner can have the improvements removed
and in the meantime demand rental; or
3. Land owner can have the land and the
improvements sold at a public auction; the
proceeds of which shall be applied preferentially to
the value of the land.

The land owner cannot compel the sower to buy the land.
Land owner can either buy the improvement or demand
rental.

If the value of the land is considerably greater than the
value of the improvement, then the land owner can only
choose between buying the improvement or demanding
rental from the builder/planter/sower.

BAR 1992- BUILDER; GOOD FAITH- A owns a parcel of
residential land worth P50, 000. Unknown to A, a residential
house costing P 100,000.00 is built on the entire parcel by B
who claims ownership of the land. Answer all the following
questions based on the premise that B is a builder in good
faith and A is a landowner in good faith.

SUGGESTED ANSWER:
a) May A acquire the house built by B? If so, how?
Yes, A may acquire the house build by B by paying
indemnity to B. Article 448 of the Civil Code provides that
the owner of the land on which anything has been built,
sown or planted in good faith, shall have the right to
appropriate as his own the works, sowing or planting, after
payment of the indemnity provided for in Articles 546 and
546 of the Civil Code.

b) If the land increased in value to P50, 000.00 by
reason of the building of the house thereon, what
amount should be paid by A in order to acquire the
house from B? A should pay B the sum of P50, 000.00.
Article 548 of the Civil Code provides that useful expenses
shall be refunded to the possessor in good faith with the
right of retention, the person who has defeated him in the
possession having the option of refunding the amount of the
expenses or of paying the increase in value which the thing
may have acquired by reason thereof. The increase in value
amounts to P50, 000.00.

c) Assuming that the cost of the house was P90,
000.00 and not P100, 000.00, may A require B to buy
the land? Yes, A may require B to buy the land. Article 448
of the Civil Code provides that the owner of the land on
which anything has been built in good faith shall have the
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right to oblige the one who built to pay the price of the
land if its value is not considerably more than that of the
building.

d) If B voluntarily buys the land as desired by A,
under what circumstances may A nevertheless be
entitled to have the house removed? If B agrees to
buy the land but fails to pay, A can have the house
removed (Depra vs. Dumlao, 136 SCRA 475).

e) In what situation may a "forced lease" arise
between A and B. and what terms and conditions
would govern the lease? Article 448 of the Civil Code
provides that the builder cannot be obliged to buy the
land if its value is considerably more than that of the
building. In such case, he shall pay reasonable rent, if the
owner of the land does not choose to appropriate the
building after proper indemnity. The parties shall agree
upon the terms of the lease and in case of disagreement,
the court fix the terms thereof.

BAR 1999- BUILDER; GOOD FAITH VS. BAD FAITH
(a) Because of confusion as to the boundaries of
the adjoining lots that they bought from the same
subdivision company, X constructed a house on the
adjoining lot of Y in the honest belief that it is the
land that he bought from the subdivision company.
What are the respective rights of X and Y with
respect to X's house? (3%) - The rights of Y, as owner
of the lot, and of X, as builder of a house thereon, are
governed by Art. 448 of the Civil Code which grants to Y
the right to choose between two remedies: (a)
appropriate the house by indemnifying X for its value plus
whatever necessary expenses the latter may have incurred
for the preservation of the land, or (b) compel X to buy
the land if the price of the land is not considerably more
than the value of the house. If it is, then X cannot be
obliged to buy the land but he shall pay reasonable rent,
and in case of disagreement, the court shall fix the terms
of the lease.

(b) Suppose X was in good faith but Y knew that X
was constructing on his (Y's) land but simply kept
quiet about it, thinking perhaps that he could get
X's house later. What are the respective rights of
the parties over X's house in this case? (2%) -
Since the lot owner Y is deemed to be in bad faith (Art
453), X as the party in good faith may (a) remove the
house and demand indemnification for damages suffered
by him, or (b) demand payment of the value of the house
plus reparation for damages (Art 447, in relation to Art
454). Y continues as owner of the lot and becomes, under
the second option, owner of the house as well, after he
pays the sums demanded.

BAR 2000-BUILDER; GOOD FAITH VS. BAD FAITH-
In good faith, Pedro constructed a five-door commercial
building on the land of Pablo who was also in good faith.
When Pablo discovered the construction, he opted to
appropriate the building by paying Pedro the cost thereof.
However, Pedro insists that he should be paid the current
market value of the building, which was much higher
because of inflation.



SUGGESTED ANSWER:
1) Who is correct Pedro or Pablo? (1%) - Pablo is
correct. Under Article 448 of the New Civil Code in relation
to Article 546, the builder in good faith is entitled to a refund
of the necessary and useful expenses incurred by him, or
the increase in value which the land may have acquired by
reason of the improvement, at the option of the landowner.
The builder is entitled to a refund of the expenses he
incurred, and not to the market value of the improvement.

The case of Pecson v. CA, 244 SCRA 407, is not applicable to
the problem. In the Pecson case, the builder was the owner
of the land who later lost the property at a public sale due to
non-payment of taxes. The Court ruled that Article 448 does
not apply to the case where the owner of the land is the
builder but who later lost the land; not being applicable, the
indemnity that should be paid to the buyer must be the fair
market value of the building and not just the cost of
construction thereof. The Court opined in that case that to
do otherwise would unjustly enrich the new owner of the
land.

ALTERNATIVE ANSWER: Pedro is correct. In Pecson vs.
CA, it was held that Article 546 of the New Civil Code does
not specifically state how the value of useful improvements
should be determined in fixing the amount of indemnity that
the owner of the land should pay to the builder in good
faith. Since the objective of the law is to adjust the rights of
the parties in such manner as "to administer complete
justice to both of them in such a way as neither one nor the
other may enrich himself of that which does not belong to
him", the Court ruled that the basis of reimbursement should
be the fair market value of the building.

2) In the meantime that Pedro is not yet paid, who is
entitled to the rentals of the building, Pedro or
Pablo? (1%) - Pablo is entitled to the rentals of the
building. As the owner of the land, Pablo is also the owner of
the building being an accession thereto. However, Pedro
who is entitled to retain the building is also entitled to retain
the rentals. He, however, shall apply the rentals to the
indemnity payable to him after deducting reasonable cost of
repair and maintenance.

ALTERNATIVE ANSWER: Pablo is entitled to the rentals.
Pedro became a possessor in bad faith from the time he
learned that the land belongs to Pablo. As such, he loses his
right to the building, including the fruits thereof, except the
right of retention.

BAR 2000- BUILDER; GOOD FAITH VS. BAD FAITH;
ACCESSION - a) Demetrio knew that a piece of land
bordering the beach belonged to Ernesto. However, since
the latter was studying in Europe and no one was taking
care of the land, Demetrio occupied the same and
constructed thereon nipa sheds with tables and benches
which he rented out to people who want to have a picnic by
the beach. When Ernesto returned, he demanded the return
of the land. Demetrio agreed to do so after he has removed
the nipa sheds. Ernesto refused to let Demetrio remove the
nipa sheds on the ground that these already belonged to
him by right of accession. Who is correct? (3%)

SUGGESTED ANSWER: Ernesto is correct, Demetrio is a
builder in bad faith because he knew beforehand that the
land belonged to Ernesto, under Article 449 of the New Civil
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Code, one who builds on the land of another loses what is
built without right to indemnity. Ernesto becomes the
owner of the nipa sheds by right of accession. Hence,
Ernesto is well within his right in refusing to allow the
removal of the nipa sheds.

BAR 2001- BUILDER; GOOD FAITH VS. BAD FAITH;
PRESUMPTION - Mike built a house on his lot in Pasay
City. Two years later, a survey disclosed that a portion of
the building actually stood on the neighboring land of
Jose, to the extent of 40 square meters. Jose claims that
Mike is a builder in bad faith because he should know the
boundaries of his lot, and demands that the portion of the
house which encroached on his land should be destroyed
or removed. Mike replies that he is a builder in good faith
and offers to buy the land occupied by the building
instead.

SUGGESTED ANSWER:
1) Is Mike a builder in good faith or bad faith?
Why? (3%) - Yes, Mike is a builder in good faith. There
is no showing that when he built his house, he knew that
a portion thereof encroached on Jose's lot. Unless one is
versed in the science of surveying, he cannot determine
the precise boundaries or location of his property by
merely examining his title. In the absence of contrary
proof, the law presumes that the encroachment was done
in good faith [Technogas Phils, v. CA, 268 SCRA 5, 15
(1997)].

ALTERNATIVE ANSWER: Mike cannot be considered a
builder in good faith because he built his house without
first determining the corners and boundaries of his lot to
make sure that his construction was within the perimeter
of his property. He could have done this with the help of a
geodetic engineer as an ordinary prudent and reasonable
man would do under the circumstances.

2) Whose preference should be followed? Why?
(2%) - None of the preferences shall be followed. The
preference of Mike cannot prevail because under Article
448 of the Civil Code, it is the owner of the land who has
the option or choice, not the builder. On the other hand,
the option belongs to Jose, he cannot demand that the
portion of the house encroaching on his land be destroyed
or removed because this is not one of the options given by
law to the owner of the land. The owner may choose
between the appropriation of what was built after
payment of indemnity, or to compel the builder to pay for
the land if the value of the land is not considerably more
than that of the building. Otherwise, the builder shall pay
rent for the portion of the land encroached.

ALTERNATIVE ANSWER: Jose's preference should be
followed. He may have the building removed at the
expense of Mike, appropriate the building as his own,
oblige Mike to buy the land and ask for damages in
addition to any of the three options. (Articles 449, 450,
451, CC)

ACCESSION CONTINUA [NATURAL]
IMMOVABLE PROPERTY

ALLUVION

Definition: It is the increment which lands abutting rivers
gradually receive as a result of the current of the waters, or
the gradual and imperceptible addition to the banks of the
rivers.

Requisites:
1. The deposit or accumulation of soil or sediment must
be gradual and imperceptible.
2. The accretion results from the effects or action of the
current of the waters of the river (or the sea).
3. The land where accretion takes place must be
adjacent to the bank of a river (or the sea coast).
4. Deposits made by human intervention are excluded.

Alluvion Accretion


The deposit of soil or
to the soil itself.
The act or the process by
which a riparian land
generally and imperceptively
receives addition made by the
water to which the land is
contiguous.
Brought about by
accretion.
The addition or increase
received by the land.

Rule: to the owners of the lands adjoining the banks of
rivers belong the accretions which they gradually receive
from the effects of the current of the waters.

Accretion operates ipso jure, such that ownership is
automatically acquired. However, the additional area is not
covered by a Torrens title since it is not described in the
title. The riparian owner must register the additional area.
The alluvion also can be subject to prescription if not titled.

However, registration under the Torrens system does not
protect the riparian owner against diminution of the area of
his land through gradual changes in the course of the
adjoining stream.

Rationale of alluvion:
1. To compensate him for the danger of the loss that he
suffers because of the location of his land (for the
estates bordering on rivers are exposed to floods and
other damage produced by the destructive force of
waters).
2. To compensate him for the encumbrances and
various kinds of easements to which his property is
subject.
3. To promote the interests of agriculture for the
riparian owner is in the best position to utilize the
accretion.

A riparian owner cannot acquire the addition to his land
caused by special/artificial works expressly intended by him
to bring about accretion. Hence, a riparian owner cannot
register accretions to his land constructed for reclamation
purposes.

If the riparian land is subject to easement established by
the government, the riparian owner has the right to the
accretion. The easement does not deprive the owner of his
ownership.

RULE ON ESTATES ADJOINING PONDS OR LAGOONS-
The owners of estates adjoining ponds or lagoons do not
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acquire the land left dry by the natural decrease of the
waters, or loss that inundated by them in extraordinary
floods [Article 448].

Article 48 does not talk of accession. When a body of
water dries up, the owner of the adjoining estate does not
own the dried up land. There is no alluvion since the soil
was not deposited in the adjoining estate. Similarly, if the
land of the adjoining owner should be flooded, such land
does not become part of the public dominion if the flood
will subside.

ACCESSION CONTINUA [NATURAL]
IMMOVABLE PROPERTY

AVULSION/BY FORCE OF RIVER

Definition: avulsion is the removal of a considerable
quantity of soil from 1 estate and its annexation to
another by the perceptible action of water. The
accumulation of soil is sudden and abrupt. The soil can be
identified.

The soil belongs to the owner of the property from where
the soil was taken. However the owner has 2 years to get
the soil. If he does not get the soil within 2 years, the
owner of the property where the soil currently is shall own
the soil.

According to JBL Reyes, avulsion is a delayed accession
since the owner of the estate where washed-out soil
landed will own the same only after 2 years if the owner
does not remove it.

Note: the 2 year period is the beginning of acquisitive
prescription. Such that if third person occupies the land
the 10 year period or 30 year period of acquisitive
prescription will commence after the lapse of two years
and the riparian owner did not register the lot.

Requisites:
1. The segregation and transfer must be caused by
the current of a river, creek, or torrent (or by other
forces, e.g. earthquake).

2. The segregation and transfer must be sudden or
abrupt.

3. The portion of land transported must be known or
identifiable.

Alluvion Avulsion
The deposit of soil is
gradual.
The deposit it is sudden
and abrupt.
The deposit of the soil
belongs to the owner of the
property where the same
was deposited.
The owner of the property
from which a part was
detached retains the
ownership thereof.
The soil cannot be identified. The detached portion can
be identified.

BAR 2001- ACCRETION; ALLUVION - For many years,
the Rio Grande River deposited soil along its bank, beside
the titled land of Jose. In time, such deposit reached an
area of one thousand square meters. With the permission
of Jose, Vicente cultivated the said area. Ten years later, a
big flood occurred in the river and transferred the 1000
square meters to the opposite bank, beside the land of
Agustin. The land transferred is now contested by Jose and
Agustin as riparian owners and by Vicente who claims
ownership by prescription. Who should prevail? Why? (5%)

SUGGESTED ANSWER: Jose should prevail. The disputed
area, which is an alluvion, belongs by right of accretion to
Jose, the riparian owner (Art. 457 CC). When, as given in
the problem, the very same area" was "transferred" by flood
waters to the opposite bank, it became an avulsion and
ownership thereof is retained by Jose who has two years to
remove it (Art. 459, CC). Vicente's claim based on
prescription is baseless since his possession was by mere
tolerance of Jose and, therefore, did not adversely affect
Jose's possession and ownership (Art. 537, CC). Inasmuch
as his possession is merely that of a holder, he cannot
acquire the disputed area by prescription.

BAR 2003- ACCRETION; AVULSION- Andres is a riparian
owner of a parcel of registered land. His land, however, has
gradually diminished in area due to the current of the river,
while the registered land of Mario on the opposite bank has
gradually increased in area by 200 square meters. (a) Who
has the better right over the 200-square meter area that has
been added to Marios registered land, Mario or Andres? (b)
May a third person acquires said 200-square meter land by
prescription?

SUGGESTED ANSWER:
a. Mario has a better right over the 200 square meters
increase in area by reason of accretion, applying Article 457
of the New Civil Code, which provides that to the owners
of lands adjoining the banks of rivers belong the accretion
which they gradually received from the effects of the current
of the waters. Andres cannot claim that the increase in
Marios land is his own, because such is an accretion and not
result of the sudden detachment of a known portion of his
land and its attachment to Marios land, a process called
avulsion. He can no longer claim ownership of the portion
of his registered land which was gradually and naturally
eroded due to the current of the river, because he had lost it
by operation of law. That portion of the land has reasonable
rent, if the owner of the land does not choose to become
part of the public domain.

b. Yes, a third party may acquire by prescription the 200
square meters, increase in area, because it is not included in
the Torrens Title of the riparian owner. Hence, this does not
involve the imprescriptibility conferred by Section 47, P.D.
No. 1529. The fact that the riparian land is registered does
not automatically make the accretion thereto a registered
land. (Grande v. CA, 115 521 (1962); Jagualing v. CA, 194
SCRA
607 (1991)

ACCESSION CONTINUA [NATURAL]
IMMOVABLE PROPERTY

TREES UPROOTED/BY FORCE OF RIVER

Rule: In the case of uprooted trees there is no accession.
The owner of the land from which the trees came from
should claim the tree within 6 months. All that Article 460
requires is claim and not removing. Although Article 460 is
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silent, the owner of the tree should remove the trees
within a reasonable time. If he does not claim within 6
months, the land owner where the tree is shall be come
the owner.

Scope: This rule refers to uprooted trees only. If a known
portion of land with trees standing thereon is carried away
by the current to another land, the rule on avulsion
governs.

Period to claim: The period for making a claim is 6
months; it is a condition precedent and not a period of
prescription (De Leon).

After a claim is made within six months, an action may be
brought within the period provided by law for prescription
of movables.

Payment of expenses for preservation: The original
owner claiming the trees is liable to pay the expenses
incurred by the owner of the land upon which they have
been cast in gathering or putting them in a safe place.

ACCESSION CONTINUA [NATURAL]
IMMOVABLE PROPERTY

ABANDONED RIVER BED/CHANGE IN THE COURSE
OF RIVER

Rule: River beds which are abandoned through the
NATURAL change in the course of waters ipso facto
belong to the owners whose lands are occupied by the
new course in proportion to the area lost.

The new river bed is de facto imminent domain. The
abandoned old river bed must be registered by the owner
of the property where the new river bed traverses.

Requisites:
1. The change in the river course must be sudden;
2. The change must be permanent;
3. The change must be natural;
4. The river must be abandoned by the government;
5. The river must continue to exist.

According to commentators, requisite no. 4 has been
repealed by Article 461. However, the Water Code
provides that the government can only return the river to
the old bed if the government sees fit. This is possible
especially if there are already existing hydro-electric plants
and irrigation projects.

Has Article 461 been superseded by Article 58 of
the Water Code?

Article 58 of the Water Code provides that the
government has the option to let the change of river
course remain as is or to bring it back. It also provides
that the owners of affected lands [those who lost land]
may undertake to return the river to the old bed provided
they get a permit from the government.

Article 58 of the WC does not contain the 2
nd
sentence of
Article 461 of the Civil Code- however, the owners of the
lands adjoining the old bed shall have the right to acquire
the same by paying the value thereof, which value shall
not exceed the value of the area occupied by the new bed.
Is the 2
nd
sentence repealed?

According to Professor Balane, no it is not since they are not
inconsistent. Thus the adjacent owners of the old bed can
buy the old river bed.

River beds are part of public domain. In this case, there is
abandonment by the government of its right over the old
bed. The owner of the invaded land automatically acquires
ownership of the same without the necessity of any formal
act on his part.

In proportion to the area lost implies that there are
two or more owners whose lands are occupied by the new
bed. Therefore, if only one owner lost a portion of his land,
the entire old bed should belong to him.

ACCESSION CONTINUA [NATURAL]
IMMOVABLE PROPERTY

NEW RIVER BED WITHOUT ABANDONMENT

Rule: Whenever a river, changing its course by NATURAL
causes, opens a new bed through a private estate, this bed
shall become of public dominion.

The bed of a public river or stream is of public ownership.
If the river changes its course and opens a new bed, this
bed becomes of public dominion even if it is on private
property.

The law does not make any distinction whether the river
is navigable or not.

ACCESSION CONTINUA [NATURAL]
IMMOVABLE PROPERTY

BRANCHING OF COURSE OF RIVER

Rule: Whenever the current of a river divides itself into
branches, leaving a piece of land or part thereof isolated,
the owner of the land retains his ownership thereto. He also
retains ownership to a portion of his land separated from the
estate by the current.

The provision does not refer to the formation of islands
through accretion, but refers to the formation of an island
caused by a river dividing itself into branches resulting in:
a. Isolation (without being physically transferred) of a
piece of land or part thereof; OR
b. Separation (physical transfer, but not to the point of
becoming avulsion) of a portion of land from an
estate by the current

The owner preserves his ownership of the isolated or
separated property.

The law does not make any distinction whether the river
is navigable or not.

REMEDY: restore the original course of the river. The
owner of the lad must asked permit from the DPWH.



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ACCESSION CONTINUA [NATURAL]
IMMOVABLE PROPERTY

FORMATION OF ISLANDS
Rules:
1. If formed on the seas within the jurisdiction
of the Philippines, on lakes, or on navigable
or floatable rivers: the island belongs to the
State as part of its patrimonial property.

Article 59 of the Water Code defines navigable
water. Article 59- Rivers, lakes and lagoons may,
upon the recommendation of the Philippine
coastguard, be declared navigable either in whole
or in part.

A navigable river is one which in its natural state
affords a channel for useful commerce and not
such as is only sufficient to float a banca or a
canoe.

2. If formed in non navigable and non
floatable rivers:
a. It belongs to the nearest riparian owner,
or owner of the margin or bank nearest to it
as he is considered on the best position to
cultivate and develop the island.

b. If the island is in the middle of the river,
the island is divided longitudinally in halves.
If the island formed is longer than the
property of the riparian owner, the latter is
deemed ipso jure to be the owner of that
portion which corresponds to the length of
that portion of his property along the margin
of the river.

c. If a single island be more distant from one
margin than from the other, the owner of
the nearer margin shall be the sole owner
thereof.

ACCESSION CONTINUA [INDUSTRIAL]
MOVABLE PROPERTY

ADJUNCTION OR CONJUNCTION

Definition: It is the union of 2 movable things belonging
to different owners in such a way that they form a single
object, but each one of the component things preserves
its value.

Example: the paint of B is used on the canvass of C.

Characteristics:
1. There are two movables belonging to different
owners.
2. They are united in such a way that they form a
single object.
3. They are so inseparable that their separation would
impair their nature and result in substantial injury
to either component.

Kinds:
1. Inclusion or engraftment (e.g. Diamond is set
on a gold ring).
2. Soldadura or soldering/ Attachment (e.g. Lead is
united or fused to an object made of lead; it is
ferruminacion if both the accessory and principal
objects are of the same metal; and plumbatura if they
are of different metals).

3. Escritura or writing (e.g. when a person writes on
paper belonging to another).

4. Pintura or painting (e.g. when a person paints on
canvas belonging to another).

5. Tejido or weaving (e.g. when threads belonging to
different owners are used in making textile).

Basic rule: if separation is possible without injury, then
separate them. If this is not possible, then there is
adjunction or conjunction.

Parties: the owner of the principal object and the owner of
the accessory.

4 SITUATIONS INVOLVING PARTIES IN
CONJUNCTION OR ADJUNCTION.

1. Owner of the principal and accessory things are
in good faith: If the union took place without bad
faith, the owner of the principal thing acquires the
accessory, with the obligation to indemnify the owner of
the accessory for its value.

But the question is which of them is the principal thing?
Tests to determine the principal in adjunction: In
the order of application, the principal is that:
a. Primary rule- RULE OF IMPORTANCE AND
PURPOSE: To which the accessory has been
united as an ornament or for its use or
perfection.

Example: the watch is the principal [to tell
time] while the bracelet is the accessory [to
wear].

b. Secondary rule- VALUE: Of greater value, if
they are of unequal values.

c. Tertiary rule- VOLUME or MASS: Of greater
volume, if they are of an equal value.

d. Fourth rule- MERITS, UTILITY, VALUE: Of
greater merits taking into consideration all the
pertinent legal provisions applicable as well as
the comparative merits, utility and volume of
their respective things.

In paintings and sculpture, writings, printed matter,
engraving and lithographs, the board, metal stone,
canvas, paper or parchment shall be deemed the
accessory thing.

2. Owner of the principal thing is in good faith while
there is bad faith on the part of owner of
accessory:
i. The owner of the accessory thing shall lose the
thing incorporated, AND

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ii. He shall be liable for damages to the owner of
the principal thing, or the payment of the
price, including its sentimental value as
appraised by experts.

iii. The principal may demand for the delivery of a
thing equal in kind and value and in all other
respects to that of the principal thing, or the
payment of the price, including its sentimental
value as appraised by experts.

3. Bad faith on the part of the owner of the
principal & good faith on the part of the owner
of accessory thing: The owner of the accessory
thing is given the option either:
i. To require the owner of the principal thing to
pay the value of the accessory thing, plus
damages.

ii. To have the accessory thing separated even if
it be necessary to destroy the principal thing,
plus damages.

iii. The accessory may demand for the delivery of
a thing equal in kind and value and in all other
respects to that of the accessory thing, or the
payment of the price, including its sentimental
value as appraised by experts.

4. Both parties in bad faith: their respective rights
are to be determined as though both acted in good
faith.

WHEN IS SEPARATION OF UNITED THINGS
ALLOWED
a. In case of separation without injury, their
respective owners may demand their separation.

b. In case the accessory is much more precious than
the principal, the owner of the accessory may
demand its separation even though the principal
may suffer injury.

c. In case the owner of principal acted in bad faith,
even if separation will cause damage to the
principal thing.

ACCESSION CONTINUA [INDUSTRIAL]
MOVABLE PROPERTY

COMMIXTION OR CONFUSION

Definition: Takes place when two or more things
belonging to different owners are mixed or combined with
the respective identities of the component parts destroyed
or lost.

Commixtion/confusion Adjunction
There is a greater degree
of interpenetration, and in
certain cases, even
decomposition of the things
which have been mixed.
Union of two movable
things in such a way that
they form a single object
but each one of the
component things
preserves its value.

Strictly speaking, there is no accession in mixture since there
is neither a principal nor an accessory.

Kinds: The mixture may be voluntary or by chance.
1. Commixtion or the mixture of solid things belonging
to different owners.

Example: the mixture of rice with different varieties.

2. Confusion or the mixture of liquid things belonging
to different owners.

Example: mixture of different gasoline belonging to
different owners.

Rules: Sentimental value shall be duly appreciated.

1. Mixture by will of both the owners or by
chance:
a. Their rights shall first be governed by their
stipulations.
b. If the things mixed are of the same kind and
quality, there is no conflict of rights, and the
mixture can easily be divided between the 2
owners.
c. If the things mixed are of different kind and
quality, in the absence of a stipulation, each
owner acquires a right or interest in the
mixture in proportion to the value of his
material as in co-ownership.

2. Mixture caused by an owner in good faith or by
chance:
a. Their rights shall first be governed by their
stipulations.
b. If the things mixed are of the same kind and
quality, there is no conflict of rights, and the
mixture can easily be divided between the 2
owners.
c. If the things mixed are of different kind and
quality, in the absence of a stipulation, each
owner acquires a right or interest in the
mixture in proportion to the value of his
material as in co-ownership.

Co-ownership arises when the things mixed are of
different kinds or quality. The expenses incident to
separation shall be borne by all the owners in
proportion to their respective interests in the mixture.

3. Mixture caused by an owner in bad faith: The
owner in bad faith not only forfeits the thing belonging
to him but also becomes liable to pay indemnity for the
damages caused to the other owner.

4. Mixture by both owners in bad faith: There is bad
faith when the mixture is made with the knowledge and
without the objection of the other owner. Accordingly,
their respective rights shall be determined as though
both acted in good faith.

ACCESSION CONTINUA [INDUSTRIAL]
MOVABLE PROPERTY



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SPECIFICATION

Definition: Takes place whenever the work of a person is
done on the material of another, and such material, as a
consequence of the work itself, undergoes a
transformation.

1. Worker and owner of the materials in good
faith: The worker becomes the owner of the
work/transformed thing but he must indemnify the
owner of the material for its value.

Exception: If the material is more precious or of
more value than the work/transformed thing, the
owner of the material may choose:
a. To appropriate the new thing to himself but
must pay for the value of the work or labor,
OR
b. To demand indemnity for the material.


2. Worker in bad faith but the owner of the
material in good faith: The owner of the material
has the option either:
a. To appropriate the work to himself without
paying the maker, OR
b. To demand the value of the material plus
damages.

Limitation: The first option is not available in case
the value of the work, for artistic or scientific reasons,
is considerably more than that of the material, to
prevent unjust enrichment.

3. Owner of the materials in bad faith but the
worker is in good faith: The owner of the material
is in bad faith when he does not object to the
employment of his materials. Accordingly, he shall
lose his materials and shall have the obligation to
indemnify the worker fro the damages he may have
suffered (Art. 470 by analogy, Tolentino).

4. Both owners are in bad faith: Their rights shall be
determined as though both acted in good faith.

Adjunction, Mixture, and Specification
distinguished:
1. In Adjunction and Mixture, there would be at least
two things, while in the Specification, there may be
only one thing whose form is changed.

2. In Adjunction and Specification, the component
parts retain or preserve their nature, while in
Mixture, the things mixed may or may not retain
their respective original nature.

3. In Adjunction and Specification, the principle that
accessory follows the principal applies, while in
Mixture, co- ownership results.

APPRAISAL OF SENTIMENTAL VALUE: Sentimental
value shall be duly appreciated in the payment of the
proper indemnity in accessions with respect to movable
property.

Sentimental value attached to a thing is not always easy
to estimate, as such it may be considered by the court.

QUIETING OF TITLE

Concept of quieting of title: An action to quiet the title to
property or to remove a cloud thereon is a remedy or form
of proceeding originating in equity jurisprudence which has
for its purpose an adjudication that a claim or title to or an
interest in property, adverse to that of the complainant, is
invalid, so that the complainant or his assignees may be
forever afterward free from any danger of hostile claim.

Action to quiet title: A remedy or proceeding which has
for its purpose an adjudication that a claim of title to realty
or an interest thereon, adverse to the plaintiff and those
claiming under him may forever be free of any hostile claim.

What is a cloud on title? It is a semblance of title, either
legal or equitable, or a claim or a right in real property,
appearing in some legal form which is, in fact, invalid or
which would be inequitable to enforce.

REQUISITES FOR EXISTENCE OF CLOUD:
1. The plaintiff in an action to quiet title must have a
legal or equitable title to, or an interest in the real
property which is the subject matter of the action.

A legal title may consist in full ownership or in the
naked ownership which is registered in the name of
the plaintiff.

If the plaintiff has the beneficial interest in the
property the legal title of which pertains to another,
he is said to have an equitable title.

An interest in property is any interest short of
ownership, like the interest of a mortgagee or a
usufructuary.

2. There is an instrument, record, claim, encumbrance
or proceeding which is apparently valid or effective.

3. Such instrument is in truth and in fact, invalid,
ineffective, or voidable, or unenforceable, or has been
extinguished or terminated, or has been barred by
extinctive prescription.

4. Such instrument may be prejudicial to said title.

5. The Plaintiff must return to the defendant all benefits
he may have received from the latter, or reimburse
him for expenses that may have redounded to the
plaintiffs benefit.

The purpose of the action to quiet title is solely to remove
the cloud on the plaintiffs title or to prevent a cloud from
being cast upon his title and not to obtain any other
benefits.

Pingol v. CA: It is not necessary that the vendee has an
absolute title. An equitable title is sufficient to clothe him
with personality to bring an action to quiet title.


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Characteristics of a cloud based on defect in
instrument:
a. The defect in the instrument is NOT apparent on
its face and, therefore, has to be proved by
extrinsic evidence. If the instrument is invalid on its
face, there is no cloud to speak of for the purpose
of an action to quiet title.

b. The alleged cloud must be prima facie
substantial, and cast a suspicion on the title or
interest to which it is hostile as will injuriously
affect the owner in maintaining his rights.

Apprehended or threatened cloud: The Court has the
power to prevent the casting of a cloud on title to
property provided that the cloud is not merely speculative.
Relief is granted if the threatened or anticipated cloud is
one which, if it existed, would be removed by suit to quite
title.

---------------------------------------------------------------------
Titong v. CA: What plaintiff imagined as clouds cast on
his title were PRs alleged acts of physical intrusion and
not an instrument, record, claim, encumbrance or
proceeding which constitutes or casts a cloud, doubt,
question or shadow upon the owners title or interest in
real property. Clearly, the acts alleged may be considered
grounds for an action for forcible entry but definitely not
one for quieting of title.

CLOUD DUE TO EXTINGUISHMENT OF RIGHT OR
PRESCRIPTION: When the contract, instrument or other
obligation has been extinguished or has terminated, or
has been barred by extinctive prescription, there may also
be an action to quiet title or to remove a cloud therefrom.

Nature of actions to quiet title:
a. These actions are not technically suits in rem, nor
are they strictly speaking, in person, but being
against the person in respect of the res, wherein
the judgment does not extend beyond the property
in controversy, these proceedings acquire a status
that may be characterized as suits quasi in rem.
b. The action may be brought as an independent civil
action.
c. Petitions for quieting of title should take
precedence over ejectment case to prevent
multiplicity of suits.

Property to which action is applicable:
a. Real property or any interest therein.
b. Certain types of personal property (e.g. vessels,
motor vehicles, certificate of stocks) which partake
of the nature of real property or are treated to
some extent as realty because of registration
requirements for ownership or transactions.

Examples/Instances of cloud of title:
a. An absolute fictitious contract of sale or a sale of
simulated consideration.
b. A sale by an agent without written authority or
after expiration of his authority.
c. A forged contract.
d. A contract of sale or donation which has become
imperative because of non performance by the
vendee or donee of a condition precedent.
e. A voidable contract.

Action to quiet title Action to remove a
cloud
Purpose is to put an end
to troublesome litigation
in respect to the property
involved.
Purpose is the removal of
a possible foundation for a
future hostile action.
A remedial action
involving a present
adverse claim.
A preventive action to
prevent a future cloud on
the title.
Plaintiff asserts his own
estate and declares
GENERALLY that
defendant claims some
estate in the land, without
defining it, and avers that
the claim is without
foundation, and calls on
the defendant to set forth
the nature of his claim, so
that it may be determined
by decree.
Plaintiff declares his own
title and avers the source
and nature of defendants
claim, point out its defect,
and prays that it be
declared void.

PRESCRIPTIBILITY OF ACTION:
a. An action to quiet title brought by a person who is in
possession of the property is imprescriptible.
b. If the plaintiff is not in possession of the property, he
must invoke his remedy within the proper prescriptive
period of ten or thirty years depending on ordinary or
extraordinary prescription.

Defenses against quieting of title:
a. Prescription.
b. Acquisition by the defendant of the title to the
property by adverse possession.
c. Res judicata.

Reliefs:
a. The instrument constituting the cloud is decreed to be
surrendered and cancelled.
b. In case of a cloud which has been cast upon title by
alteration in a deed, relief may be awarded by
decreeing restoration of the deed to its original state.

PROCEDURE OF QUIETING OF TITLE: The principle of
the general law on quieting of title shall apply. Also, it shall
be governed by such Rules of Court as the Supreme Court
shall promulgate.

The SC has not yet promulgated the particular rules on the
quieting of title.

JURISDICTION ON QUIETING OF TITLE
MTC- estimated value of the lot is 30 and below
outside Metro Manila and 50 and below within Metro
Manila

RTC- estimated value of the lot is 31K and above
outside Metro Manila and 51K or more within Metro
Manila.




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CO-OWNERSHIP

Definition: A form of ownership which exists whenever
an undivided thing or right belongs to different persons;
As a right, it has been defined as the right of common
dominion which two or more persons have in a spiritual or
ideal part of a thing which is not materially or physically
divided.

Requisites of co-ownership
1. Plurality of subjects and singularity of object.
2. Unity or material indivision of the object, which
means that there is single object which is not
materially divided, and which is the element which
binds the subjects.
3. The recognition of ideal shares, which determines
the rights and obligations of the co-owners.

Principles of Co-ownership:
In co-ownership, there is only 1 ownership, but
such ownership is shared ownership.
Each co-owner owns a fractional or an ideal part of
the object but they cannot point to a specific part
of the object.
Co-ownership is not encouraged since

Sources of Co-ownership:
1. By law - Law may mandate co-ownership (i.e.,
party wall)
2. By contract
3. By chance - Examples are commixtion or
confusion
4. By occupation - In Punzalan vs. Boon Liat, the SC
said that the fishermen are co-owners of the whale
they caught.
5. By succession - Compulsory, testamentary,
intestate

Characteristics of Co-ownership:
1. More than 1 owner
2. 1 physical unit or whole divided into ideal or
fractional shares
3. Each fractional share is definite in amount but not
physically segregated from the rest
4. As to the physical unit, each co-owner must respect
the other co-owners in its common use, enjoyment
and preservation (Article 483)
5. As to the aliquot share, each co-owner holds
absolute control (Article 493)
6. No juridical personality of its own

The relationship between and among the co-owners is
fiduciary in character and attribute. Hence, each co-owner
becomes a trustee for the benefit of his co-owners and he
may not do any act prejudicial to the interest of his co-
owners.

RIGHTS OF EACH CO-OWNER:
1. He shall have full ownership of his part (his
undivided interest or share in the common
property).

2. He shall have full ownership of the fruits and
benefits pertaining thereto.

3. He may alienate, assign or mortgage his ideal interest
or share. The effect of the alienation or mortgage
shall be limited to the portion which may be allotted
to him in the division upon the termination of the co-
ownership.

4. He may even substitute another person in the
enjoyment of his part, except when personal rights
are involved such as his share in a right to use and
habitation.
5. He may by himself extinguish any real right existing
on the thing, such as easement or mortgages,
because in everything that is for the benefit of the
community, each co-owner represent all the others.

Can a co-owner sell his pro-indiviso share in the
community property even without the consent of
other co-owners? Yes, since one of his right as an owner
is to dispose the property at his own will.

Remedy of other co-owner: legal redemption it is
the right given by law to other co-owners to redeem the
alienated pro-indiviso shares of their co-owners.

Requisites of Legal Redemption
1. There must be a co-ownership
2. One of the co-owners sold his right to a stranger [not
a co-owner]
3. The sale was made before partition of the community
property
4. The right of redemption must be exercised by one or
more co-owners within 30 days to be counted
from the time that he or they were notified in
writing by the vendee or by the co-owner vendor.
5. The vendee must be reimbursed for the price of the
sale.

Notice to other co-owners of the sale
It must be in writing. If the notice was given orally, it
will not toll the running of the 30 days period to
redeem.

It must be given after the transection

Can a co-owner without the consent of other co-
owners sell the entire community property? No, the
seller co-owner can only alienate his interest in the co-
ownership. Thus, the sale of the interest of the other co-
owners is void.

Remedy of non-consenting co-owners if the
community property was already delivered to the
buyer?
The proper remedy is partition of the community
property.

Nullification of the sale is not the proper remedy
since the sale of the interest of the seller co-owner is
valid, making the buyer a co-owner. Nullification of
the sale is a remedy if the sale is entirely null and
void.

Recover of possession is not also the remedy since
this can be availed only by the non-consenting co-
owner if the act of a co-owner is prejudicial to the co-
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ownership. Moreover, since the buyer became a co-
owner, one of his rights is the entitlement to the
possession of the community property as one.

Legal redemption is also not the remedy because
the remedy of legal redemption contemplates that
the seller co-owner sold his pro-indiviso share and
not the entire community property.

Art. 1623 requires that the written notification should
come from the vendor or prospective vendor, not from
any other person. It is the notification from the seller,
which can remove all doubts as to the fact of the sale, its
perfection, and its validity, for in a contract of sale, the
seller is in the best position to confirm whether consent to
the essential obligation of selling the property and
transferring ownership thereof to the vendee has been
given. (Francisco v. Boiser)

The written notice of sale is mandatory for the tolling of
the 30-day redemption period. Notwithstanding actual
knowledge of a co-owner, the latter is still entitled to a
written notice from the selling co-owner in order to
remove all uncertainties about the sale, its terms and
conditions, as well as its efficacy and status. (Verdad v
CA)

The validity of a title depends on the buyers knowledge,
actual or constructive, of a prior sale. While there is no
direct proof that the second vendees actually knew of the
sale to the first vendees, they are deemed to have
constructive knowledge thereof by virtue of their
relationship to the vendors. A third person, within the
meaning of Art. 1620 of the Civil Code (on the right of
legal redemption of a co-owner) is anyone who is not a
co-owner. Art. 1623, requiring the vendor of the property
to give a written notice of sale to the other co-owners,
had been rendered inutile by the fact that the first
vendees took possession of the property immediately after
the execution of the deed of sale in their favor and
continue to possess the same. Since the fact of possession
by the first vendees had not been questioned by any of
the co-owners, the latter may be deemed to have
knowledge of the sale. (Pilapil v CA)

If the buyer registered the entire community
property in his own name, what is the remedy of
the non-consenting co-owners? If the buyer
succeeded in obtaining a title of the community property
in his own name, then there exists an implied trust in
favor of the non-consenting co-owners.
The non-consenting co-owners can assail the title of the
buyer based on implied trust, which will prescribe within
10 years from notice of the sale. The co-owners can file
an action of quieting of title with reconveyance and
nullification of title.

What if a co-owner sold a specific portion of the
community property, is the sale valid? No, the sale is
null and void, since a co-owner can only dispose his
undivided interest in the co-wnership. However, the buyer
shall step into the shoes of vendor co-owner and will take
the interest of the latter in the co-ownership.

LIMITATIONS ON COOWNERS RIGHT OF USE: Each
coowner may use the thing owned in common provided he
does so:

1. To the purpose for which the coownership is
intended.

To determine the purpose for which the property is
intended, the agreement of the parties should govern.
In default of such agreement, it is understood that the
thing is intended for that use for which it is ordinarily
accepted to its nature, or the use to which it has been
previously devoted.

The purpose of the co-ownership may be changed by
agreement, express or implied.

Mere tolerance on the part of the co-owners cannot
legalize the change in the use of a thing from that
intended by the parties.

2. Without prejudice to the interests of the co
ownership.

A co-owner cannot devote community property to his
exclusive use.

A coowner may not convey or adjudicate to himself
in fee simple, by metes and bounds, a determinate
physical portion of real estate owned in common.

In Pardell vs. Bartolome, 2 sisters owned a 2 story
building. The first floor was by rented out. The second
floor was being occupied by 1 sister. The other sister
was in Spain. The SC said that the sister occupying the
second floor need not pay rent. The fact that she used
the whole second floor is irrelevant. She did not
prejudice the rights of her sister in Spain precisely
because she was in Spain. But with respect to the first
floor which was occupied by the husband of one of the
sisters, the husband should pay his sister-in-law of
the rent for such portion. Otherwise, his sister-in-law
would be prejudiced.

As a co-owner, one can use the entire physical unit. For
example, a co-owner uses the entire car, not just a
portion of the car. A co-owner does not have to pay
rent for the use of the thing co-owned.

3. Without preventing the other coowners from
using it according to their rights.
The co-owners may establish rules regarding their
use of the thing owned in common. In default thereof,
there should be a just and equitable distribution of uses
among all the co-owners.

REMEDY: EJECTMENT SUIT [Art. 447 rel. to Art 449]-
a. Can be brought by anyone of the coowners.

A co-owner may bring such an action without
the necessity of joining all the other co-owners
as co-plaintiffs because the suit is deemed to
be instituted for the benefit of all.

However, if the action is for the benefit of the
plaintiff alone, such that he claims the
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possession for himself and not for the co-
ownership, the action will NOT prosper.

b. Action may be brought not only against
strangers but even against a coowner.

The effect of the action will be to obtain
recognition of the co-ownership. The defendant
cannot be excluded because he has a right to
possess as a co-owner, and the plaintiff cannot
recover any material or determinate part of the
property.

Illustrations:
A, B, C, D, and E are co-owners of a lot which is being
squatted. A files an ejectment suit. A wins. All the other
co-owners benefit. Do the other co-owners share in the
expense? Yes, one can argue that its a necessary
expense.

A, B, C, D, and E are co-owners of a lot which is being
squatted. A files an ejectment suit. A loses. May the other
sue for ejectment? No, it is barred by prior judgment.
However, an adverse decision in the action is not
necessarily res judicata with respect to the other co
owners not being parties to the action, but they are bound
where it appears that the action was instituted in their
behalf with their express or implied consent.

A, B, and C bought a book on credit. They are co-owners
of a book. In an action by the creditor against the co-
owners, the creditor must sue all. Article 487
contemplates a situation when it is the co-owner who files
the suit not when they are the defendants.

Note: Article 447 is a case where 1 co-owner can bind the
other. The other instance is Article 489 - Repairs for
preservation may be made at the will of one of the
co-owners, but he must, if practicable, first notify
his co-owners of the necessity for such repairs.
Expenses to improve or embellish the thing shall be
decided upon by a majority as determined in article
492.

BENEFITS & EXPENSES IN THE CO-OWNED
PROPERTY

I. SHARE OF COOWNERS IN BENEFITS: It shall be
proportional to their respective interests in the co-
ownership. Any stipulation in a contract to the
contrary shall be void.

The article speaks of stipulation in a contract.
Hence, if the co-ownership is created other than by a
contract (will or donation), the share of the co
owners need not be proportionate to their respective
interests (DE LEON).

II. NECESSARY EXPENSES

Expenses of preservation (necessary expenses)
include all those which, if not made, would endanger
the existence of the thing or reduce its value or
productivity. They do not imply an improvement or
increase.

The consent of the other co-owners need not be
obtained. Thus, a co-owner may advance the expenses
for preservation. If practicable, he is required to give
notice to his co-owners of the NECESSITY of the repairs
to be made but he is NOT required to obtain their
consent.

Reason: Each co-owner preserves the rights inherent
in ownership in general, and he should not be
prejudiced by the negligence of the others by making it
necessary for him to submit to their resolutions, thereby
preventing him from taking the necessary measures to
prevent the destruction of the thing or loss of the right
owned in common, although it is within his power to do
so.

Why is notice to other co-owners necessary? It
is for them to prepare for the expenses.

Right of co-owner who shouldered the
necessary expenses: to be reimbursed by the other
co-owners. If the other co-owners do not pay he can
ask the court to compel them to pay the same.

Remedy of co-owners who were not notified of
the necessary expenses: They can ask the co-owner
who made the expenses to prove the necessity of the
repairs and the reasonableness of the expenses. The
co-owners who were not notified will not be required to
contribute to expenses which are excessive.

If due to the opposition of the others, the repairs are
not undertaken, those who opposed such repairs shall
pay the losses and damages suffered by the community.

EXAMPLE OF NECESSARY EXPENSE: expenses of
preservation and taxes- Each co-owner shall have a
right to compel the other co-owners to contribute to the
expenses of preservation of the thing or right owned in
common and to the taxes in proportion to their interest
therein.

There is no other remedy available against the co-
owner who refuses to pay his share in the expenses of
preservation except an action to compel him to
contribute such share.

Failure to contribute does not amount to a
renunciation of any portion of share in the co-
ownership. The co-owner in default cannot be
compelled to renounce his share therein. Renunciation
is a voluntary and free act.

Remedy of a co-owner who cannot contribute:
Any one of the latter may exempt himself from this
obligation by renouncing so much of his undivided
interest as may be equivalent to his share of the
expenses and taxes.

Prejudicial renunciation: No such waiver shall be
made if it is prejudicial to the co-ownership.

Illustration: In a building owned in common, urgent
repairs are needed. Otherwise, the building is going to
collapse. A owns 2/3 interest in the building, and B and
C own 1/6 each. If B and C have each just enough
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funds equal to 1/6 of the expected expenses for the
repair of the building, and then A renounces in their
favor all his interest in the building, the repair may
become impossible of accomplishment for lack of
funds. The waiver in this case is void. B and C can
proceed to have the building repaired, and A would
still be bound to pay his share of the expenses,
notwithstanding his renunciation.

Rules on renunciation:
a. Total or partial.

b. Expressly made a tacit renunciation cannot
produce any effect.

c. The renunciation is in reality a case of
dacion en pago; the debt of the co-owner
consisting of his share in the expenses of
preservation and taxes, is paid, not in
money, but in an interest in property.

d. Since the renunciation refers to a portion
equivalent in value to the share of the
renouncing co-owner in an existing debt, it is
only logical that the other co-owners who
shall pay the debt of the renouncer in
exchange for the portion being renounced,
should consent thereto.

e. Renunciation refers to existing debts and
NOT to future expenses.

f. Renunciation is a free act; a co-owner may
not be compelled to renounce.

However, waiver interest in the community
property is not allowed if it is prejudicial to the
coownership.

III. EXPENSES FOR ADMINISTRATION

Majority of the co-owners must consent to the
expenses.

Majority: There shall be no majority unless the
resolution is approved by the co-owners who
represent the controlling interest in the object of co-
ownership (not numerical superiority).

The administration may be delegated by the co-
owners to one or more persons, whether co-owners
or not. The powers and duties of such administrators
must be governed by the rules on agency.

EXAMPLE: Expenses to improve or embellish
are a matter of administration and better enjoyment
of the thing owned in common. Since they are not
essential to the preservation of the thing owned in
common, and can afford to be delayed, the consent
of the majority of the coowners is required.

Rules for acts of administration and better
enjoyment:
a. For the administration and better enjoyment of
the thing owned in common, the resolutions of
the majority of the co-owners shall be binding.

b. There shall be no majority unless the resolution is
approved by the co-owners who represent the
controlling interest in the object of the co-
ownership.

c. Should there be no majority, or should the
resolution of the majority be seriously prejudicial
to those interested in the property owned in
common, the Court, at the instance of an
interested party, shall order such measures as it
may deem proper, including the appointment
of administrator.

Characteristics of acts of administration:
a. They refer to the enjoyment and preservation of
the thing.

b. They have transitory effects.

c. Alterations which do not affect the substance or
form of the thing.

A lease ceases to be an act of administration
and becomes an act of ownership when it is
required to be recorded in the Registry of
Property with a special power of attorney. A
special power of attorney shall be necessary
when the lease of any real property is for a
period of more than 1 year.

In this management, the majority of interests control,
and their decisions are binding upon the minority. In
making these decisions, however, there should be a
notice to the minority, so that they can be heard, and
the majority will be justified in proceeding without
previous consultation with the minority, only when the
urgency of the case and the difficulty of meeting so
require.

Instances of prejudicial resolution of the
MAJORITY:
1. When the resolution calls for a substantial change
or alteration of the common property or of the
use to which it has been dedicated by agreement
or by its nature.

2. When the resolution goes beyond the limits of
mere administration, or invades the proprietary
rights of the co-owners.

3. When the resolution exposes the thing to serious
danger.

4. When the majority refuses to dismiss an
administrator who is guilty of fraud or
negligence.

ALTERATIONS IN CO-OWNED PROPERTY

Definition: An act, by virtue of which, a co-owner, in
opposition to the common or tacit agreement, and violating
the will of the co-ownership, changes the thing from the
state in which the others believe it should remain, or
withdraws it from the use to which they desire it to be
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intended; transformation which change the essence and
nature of the thing.

Rule on alteration of community property:
Unanimous consent of all the co-owners is needed.

None of the co-owners shall, without the consent of
the others, make alterations in the thing owned in
common, even though benefits for all would result
therefrom. However, if the withholding of the
consent by one or more of the co-owners is clearly
prejudicial to the common interest, the Courts may
afford adequate relief.

Alteration is a form of repudiation.

An alteration constitutes an exercise of the right of
ownership, and not of mere administration. Hence,
alterations must be made by the consent of all of the co-
owners even though the alteration would be beneficial,
and not by a mere majority. The consent may be express
or implied as in the case of a co-owner who knows that
the alteration is being made, but does not interpose any
objection thereto. However, the consent given must
be express to entitle recovery or reimbursement for
the expenses incurred in the alteration.

When the change or alterations merely affect the better
enjoyment of the thing, the agreement of the co-owners
representing the majority interest is sufficient.

The coowner who makes such alteration without the
express or implied consent of the other coowners acts in
bad faith, as a punishment he should:
a. Lose what he spent.
b. Be obliged to demolish the improvements done.
c. Be liable to pay for losses and damages the
community property or the other coowners may
have suffered.
d. Whatever is beneficial or useful to the co-ownership
shall belong to it.

ACQUSITIVE PRESCRIPTION IN CO-OWNERSHIP

Acquisitive prescription in co-ownership depends on
the one possessed the community property.

Community property is possessed by third person-
acquisitive prescription sets in when the third person
possesses the property in an open, continuous, exclusive
and notorious manner. He will own the property within-
10 years if in good faith
30 years if in bad faith

The acquisitive period shall commence from the time of
possession of the community property.

Community property is possessed by a co-owner-
for acquisitive prescription to set in, the co-owner must
repudiate the co-ownership. He will own the property
within 30 years commencing form the knowledge of the
co-owners of the repudiation of the co-ownership.




REPUDIATION OF CO-OWNERSHIP

Is there a possibility that the ownership over a
community property will be consolidated to only one
owner? Yes if a co-owner-
1. Buys the whole community property
2. If a co-owner repudiates the presence of co-
ownership acquisitive prescription had set in against
the other co-owners.

Prescriptive period: 30 years commencing from the date
of the knowledge of other co-owners of the repudiation.

Where a co-owner or coheir repudiates the co-
ownership, prescription begins to run from the time of
knowledge of the repudiation. Thus, the imprescriptibility of
the action to demand partition cannot be invoked when one
of the co-owners has claimed the property as exclusive
owner and possessed it for a period sufficient to acquire it
by prescription

General rule: prescription does not run in favor of a co-
owner or co-heir against his co-owners or co-heirs so long as
he expressly or impliedly recognizes the co-ownership.

Rationale: The possession of a co-owner is like that of a
trustee. No one of the coowners may acquire exclusive
ownership of the common property through prescription for
the possession by the trustee alone is not deemed adverse
to the rest.

Exception: In case a co-owner expressly repudiates the
existence of co-ownership. However, in order that his
possession may be deemed adverse to the others, the
following requisites must concur:

1. That he has performed unequivocal acts of
repudiation amounting to an ouster of the others.

2. Such positive acts of repudiation have been made
known to the others.

3. The evidence thereon must be clear and convincing.

Hence, a mere silent possession of the trustee
unaccompanied with acts amounting to an ouster of the
cestui que trust cannot be construed as adverse possession.

In order that the share of a co-owner may prescribe in
favor of one of the co-owners, it must be clearly shown that
he has repudiated the claims of the others, and that they
were apprised of his claim of adverse and exclusive
ownership, before prescriptive period begins to run.

Specific acts which are considered acts of
repudiation:
a. Filing by a trustee of an action in court against the
trust to quiet title, or recovery of ownership thereof,
held in possession by the former.

b. The issuance of the certificate of title would constitute
an open and clear repudiation of any trust, and the
lapse of more than 20 years, open and adverse
possession as owner would certainly suffice to vest
title by prescription.

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c. Alteration of the community property without the
consent of all the co-owners.

d. Fencing the community property to the exclusion of
other co-owners.

e. Entering into a registered lease of the community
property without the consent of all the co-owners.
A lease shall be registered if it for the period of
more than 1 year. If the lease is register the lessee
will have a real right over the property enforceable
even against the co-owners. The other co-owners
may be deprived of the used of the community
property.

FORCLOSURE OF MORTGAGED OF A CO-OWNED
PROPERTY

Rule: the property is still co-owned until the period of
redeeming the mortgage property had lapsed. The right of
redemption belongs to the co-owners.

ILLUSTRATION: Bar 2000- ownership; co-
ownership; redemption: Ambrosio died, leaving his
three daughters, Belen, Rosario and Sylvia a hacienda
which was mortgaged to the Philippine National Bank due
to the failure of the daughters to pay the bank, the latter
foreclosed the mortgage and the hacienda was sold to it
as the highest bidder. Six months later, Sylvia won the
grand prize at the lotto and used part of it to redeem the
hacienda from the bank. Thereafter, she took possession
of the hacienda and refused to share its fruits with her
sisters, contending that it was owned exclusively by her,
having bought it from the bank with her own money. Is
she correct or not? (3%)

SUGGESTED ANSWER: Sylvia is not correct. The 3
daughters are the co-owners of the hacienda being the
only heirs of Ambrosio. When the property was foreclosed,
the right of redemption belongs also to the 3 daughters.
When Sylvia redeemed the entire property before the
lapse of the redemption period, she also exercised the
right of redemption of her co-owners on their behalf. As
such she is holding the shares of her two sisters in the
property, and all the fruits corresponding thereto, in trust
for them. Redemption by one co-owner inures to the
benefit of all (Adille v. CA.157 SCRA 455). Sylvia, however,
is entitled to be reimbursed the shares of her two sisters
in the redemption price.

TERMINATION OF COOWNERSHIP

Rule: No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the
partition of the thing owned in common.

Causes of termination:
1. By the consolidation or merger in only one of the
co-owners of all the interests of the others.
2. By the destruction or loss or the property co
owned.
3. By acquisitive prescription in favor of a third person
or a coowner who repudiates the coownership.
4. By the termination of the period agreed upon or
imposed by the donor or the testator, or the period
allowed by law.
5. By the sale by the co-owners of the thing to a third
person and the distribution of its proceeds among
them.
6. By the partition, judicial or extrajudicial, of the
respective undivided shares of the co-owners.

PARTITION OF CO-OWNED PROPERTY

Partition shall be governed by the Rules of Court.

The mere fact that the partition of the property may
affect the usefulness or value of the whole is not a valid
excuse for a refusal to have it partitioned among the co-
owners.

An action for partition does not prescribe.

Partition defined: The division between two or more
persons of real or personal property which they own in
common so that each may enjoy and possess his sole estate
to the exclusion of and without interference from the others.

Exceptions to the right of partition:
1. When the co-owners have agreed to keep the thing
undivided for a certain period of time, not exceeding
10 years. This term may be extended by a new
agreement.

The excess in 10 years shall be void. When the
agreement is that it shall continue until one co-owner
dies, the indivision cannot go beyond 10 years. If a
co-owner dies before 10 years expire, the indivision
will cease upon such death.

2. When the partition is prohibited by the donor or
testator for a certain period not exceeding 20 years.

3. When another coowner has possessed the property
as exclusive owner and for a period sufficient to
acquire it by prescription.

4. When a partition is prohibited by law as when the co-
owners cannot demand a physical division of the
thing owned in common because to do so would
render it unserviceable for the use for which it is
intended the co-ownership may be terminated in
accordance with the following rules:
a. Agreement between the co-owners that the
thing be allotted to one of them who shall
indemnify the others.
b. If the co-owners cannot agree, the thing shall
be sold and its proceeds distributed to the co-
owners.

5. When from the very nature of the community, it
cannot be legally divided, such as in party walls and
the conjugal partnership.

Purpose and effect of partition:
1. It has for its purpose the separation, division and
assignment of the thing held in common among those
to whom it may belong; the thing itself may be
divided, or its value.

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2. After partition, the portion belonging to each co-
owner has been identified and localized, so that co-
ownership, in its real sense, no longer exists.

Issues in an action for partition:
1. Whether or not the plaintiff is indeed a coowner.

2. How the property is to be divided between the
plaintiff and the defendant.

How partition is effected:
a. Extrajudicially pursuant to an agreement or by
judicial proceedings under Rule 69 of the Rules of
Court.

b. May be effected in consequence of a suit through a
settlement between the parties with the approval of
a competent court

Where in an action for reconveyance and damages
does not specifically seek partition, it does not preclude
the court from considering partition as a remedy under
art. 494

OBLIGATIONS OF COOWNERS IN PARTITION:
1. Mutual accounting of benefits received for the fruits
and other benefits of the thing belong to all the co-
owners.

2. Mutual reimbursement for expenses, for if they
share in the benefits, they should also share in the
charges.

3. Indemnity for damages caused by reason of
negligence or fraud.

4. Reciprocal warranty for defects of title or quality of
the portion assigned to a coowner.

PARTICIPATION OF CREDITORS AND ASSIGNEES
IN THE PARTICIPATION

Note that the participation of creditors and
assignees is only limited in the partition of the co-
owned property.

Creditors: includes all kinds of creditors, provided they
became so during the existence of the coownership.

Assignees: refers to transferees of the interests of one or
more of the coowners.

Rules:
1. If no notice is given, the partition will not be
binding upon the creditors. The creditors or
assignees may question the partition.
2. If notice is given, it is their duty to appear and
make known their position.
3. They cannot impugn a partition already executed or
implemented, unless:
a. There has been fraud, whether or not notice
was given, and whether or not formal
opposition was presented, OR
b. The partition was made notwithstanding a
formal opposition presented to prevent it,
even if there has been no fraud.
THIRD PERSONS: The partition of a thing owned in
common shall not prejudice third persons, who shall retain
the rights of mortgage, servitude, or any other real rights
belonging to them before the division was made. Personal
rights pertaining to third persons against the co-ownership
shall also remain in force, notwithstanding the partition.

Third persons refers to all those with real rights or with
personal rights against the coowners who had no
participation whatever in the partition. Such rights of third
persons existing before the division was made are retained
by them or remain in force notwithstanding the partition.

LEGAL OR JURIDICAL DISSOLUTION: When the thing is
essentially indivisible, the co-ownership may be terminated
in accordance with the following rules:
a. Agreement between the co-owners that the thing be
allotted to one of them who shall indemnify the
others.
b. If the co-owners cannot agree, the thing shall be sold
and its proceeds distributed to the co-owners.

The sale may be public or private, and the purchaser may
be a co-owner or a third person.


SPECIAL CO-OWNERSHIP

EXPENSES IN DIFFERENT STORIES OF A HOUSE
BELONGING TO DIFFERENT OWNERS.

Rules: If the titles of ownership do not specify the terms
under which they should contribute to the necessary
expenses and there exists no agreement on the subject, the
following rules shall be observed:
1. Main walls, party walls, the roof and other things
used in common: all owners in proportion to the value
of the story belonging to each.

2. Floors of story: each owner shall bear the cost of
maintaining the floor of his story.

3. Floor of entrance, front door, common yard and
common sanitary works: all owners pro rata.

4. Stairs from the entrance to the first story: all owners
pro rata, with the exception of the owner of the
ground floor.

5. Stairs from the first story to the second story: all
owners pro rata, with the exception of the owner of
the ground floor and the first floor; and so on,
successively.

6. Stairs going to the basement: Owner of the
basement.

EXPENSES ON COMMON AREAS OF CONDOMINIUM
UNITS [R.A. 4726: THE CONDOMINIUM ACT]

Condominium defined : An interest in real property
consisting of a separate interest in a unit in a residential,
industrial or commercial building and an undivided interest in
common, directly or indirectly, in the land on which it is
located and in other common areas of the building. A
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condominium may include, in addition, a separate interest
in other portions of such real property.

How expenses are handled? Title to common areas,
including the land, or the appurtenant interests in such
areas, may be held by a corporation specially formed for
the purpose (condominium corporation) in which the
holders of separate interests shall automatically be
members or shareholders, to the exclusion of others, in
proportion to the appurtenant interest of their respective
units in the common areas.

RIGHTS AND OBLIGATIONS OF CONDOMINIUM
OWNER

What are the incidents of a condominium grant?
a. The boundary of the unit grant
1. the interior surfaces of the perimeter walls,
floors, ceilings, windows, an doors
2. those which are not part of the unit bearing
walls, columns, floors, roofs, foundations,
and other common structural elements of
the building; lobbies, stairways, hallways,
and other areas of common use, elevator
equipment and shafts, central heating,
central refrigeration, and central air
conditioning equipment, reservoirs, tanks,
pumps, and other central services and
facilities, pipes, ducts, flues, chutes,
conduits, wires and other utility installations,
wherever located, except the outlets thereof
when located within the unit.

b. Exclusive easement for the use of the air space
encompassed by the boundaries of the unit as it
exists at any particular time.
1. as the unit may lawfully be altered or
reconstructed from time to time
2. such easement shall be automatically
terminated in any air space upon
destruction of the units to render it
untenable
c. Unless otherwise provided, the common areas
are held in common by the holders of units, in
equal shares, one for each unit
d. a non-exclusive easement for ingress, egress,
and support through the common areas are
subject to such easements.
e. Each condominium unit owner shall have the
exclusive right to paint, repaint, tile, wax, paper,
or otherwise refinish and decorate the inner
surfaces of the walls, ceilings, floors, windows,
and doors, bounding his own unit.
f. Each condominium owner shall have the
exclusive right to mortgage, pledge, encumber
his condominium and to have the same appraised
independently of the other condominiums but
any obligation incurred by such condominium
owner is personal to him.
g. Each condominium owner has also the absolute
right to sell or dispose of his condominium unless
the master deed contains a requirement that the
property be first offered to the condominium
owners within a reasonable period of time before
the same is offered to outside parties.
Case: Section 5 of the Condominium Act expressly provides
that the shareholding in the Condominium Corporation will
be conveyed only in a proper case. Not every purchaser of a
condominium unit is a shareholder of the condominium
corporation. The Condominium Act leaves to the Master
Deed the determination of when the shareholding will be
transferred to the purchaser of a unit, as clearly provided in
the deed in this case. Ownership of a unit, therefore, is a
condition sine qua non to being a shareholder in the
condominium corporation By necessary implication, the
"separate interest" in a condominium, which entitles the
holder to become automatically a share holder in the
condominium corporation, as provided in Section 2 of the
Condominium Act, can be no other than ownership of a unit.
The private respondents, consequently, who have not fully
paid the purchase price of their units and are not owners of
their units nor members or shareholders of the petitioner
condominium corporation. (Sunset View Condominium v
Judge Campos)

BAR 1992- Ownership; Co-Ownership- A, B and C are
the co-owners in equal shares of a residential house and lot.
During their co-ownership, the following acts were
respectively done by the co-owners: 1) A undertook the
repair of the foundation of the house, then tilting to one
side, to prevent the house from collapsing. 2) B and C
mortgaged the house and lot to secure a loan. 3) B engaged
a contractor to build a concrete fence all around the lot. 4) C
built a beautiful grotto in the garden. 5) A and C sold the
land to X for a very good price.

SUGGESTED ANSWER:
(a) Is A's sole decision to repair the foundation of the
house binding on B and C? May A require B and C to
contribute their 2/3 share of the expense? Reasons.
Yes. A's sole decision to repair the foundation is binding
upon B and C. B and C must contribute 2/3 of the expense.
Each co-owner has the right to compel the other co-owners
to contribute to the expense of preservation of the thing
(the house) owned in common in proportion to their
respective interests (Arts. 485 and 488, Civil Code).

(b) What is the legal effect of the mortgage contract
executed by B and C? Reasons. The mortgage shall not
bind the 1/3 right and interest of A and shall be deemed to
cover only the rights and interests of B and C in the house
and lot. The mortgage shall be limited to the portion (2/3)
which may be allotted to B and C in the partition (Art. 493,
Civil Code).

(c) Is B's sole decision to build the fence binding
upon A and C? May B require A and C to contribute
their 2/ 3 share of the expense? Reasons. B's sole
decision to build the concrete fence is not binding upon A
and C. Expenses to improve the thing owned in common
must be decided upon by a majority of the co-owners who
represent the controlling interest (Arts. 489 and 492. Civil
Code).
(d) Is C's sole decision to build the grotto binding
upon A and B? May C require A and B to contribute
their 2/ 3 share of the expense? Reasons. C's sole
decision to build the grotto is not binding upon A and B who
cannot be required to contribute to the expenses for the
embellishment of the thing owned in common if not decided
upon by the majority of the co-owners who represent the
controlling interest (Arts. 489 and 492, Civil Code).
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(e) What are the legal effects of the contract of
sale executed by A. C and X? Reasons. The sale to X
shall not bind the 1/3 share of B and shall be deemed to
cover only the 2/3 share of A and C in the land (Art. 493,
Civil Code). B shall have the right to redeem the 2/3 share
sold to X by A and C since X is a third person (Art. 1620,
Civil Code).

BAR 2000- OWNERSHIP; CO-OWNERSHIP;
PRESCRIPTION- In 1955, Ramon and his sister Rosario
inherited a parcel of land in Albay from their parents.
Since Rosario was gainfully employed in Manila, she left
Ramon alone to possess and cultivate the land. However,
Ramon never shared the harvest with Rosario and was
even able to sell one-half of the land in 1985 by claiming
to be the sole heir of his parents. Having reached
retirement age in 1990 Rosario returned to the province
and upon learning what had transpired, demanded that
the remaining half of the land be given to her as her
share. Ramon opposed, asserting that he has already
acquired ownership of the land by prescription, and that
Rosario is barred by laches from demanding partition and
reconveyance. Decide the conflicting claims. (5%)

SUGGESTED ANSWER: Ramon is wrong on both counts:
prescription and laches. His possession as co-owner did
not give rise to acquisitive prescription. Possession by a
co-owner is deemed not adverse to the other co-owners
but is, on the contrary, deemed beneficial to them
(Pongon v. GA, 166 SCRA 375). Ramon's possession will
become adverse only when he has repudiated the co-
ownership and such repudiation was made known to
Rosario. Assuming that the sale in 1985 where Ramon
claimed he was the sole heir of his parents amounted to a
repudiation of the co-ownership, the prescriptive period
began to run only from that time. Not more than 30 years
having lapsed since then, the claim of Rosario has not as
yet prescribed. The claim of laches is not also meritorious.
Until the repudiation of the co-ownership was made
known to the other co-owners, no right has been violated
for the said co-owners to vindicate. Mere delay in
vindicating the right, standing alone, does not constitute
laches.

ALTERNATIVE ANSWER: Ramon has acquired the land
by acquisitive prescription, and because of laches on the
part of Rosario. Ramon's possession of the land was
adverse because he asserted sole ownership thereof and
never shared the harvest therefrom. His adverse
possession having been continuous and uninterrupted for
more than 30 years, Ramon has acquired the land by
prescription. Rosario is also guilty of laches not having
asserted her right to the harvest for more than 40 years.

BAR 2002- Ownership; Co-Ownership;
Prescription- Senen and Peter are brothers. Senen
migrated to Canada early while still a teenager. Peter
stayed in Bulacan to take care of their widowed mother
and continued to work on the Family farm even after her
death. Returning to the country some thirty years after he
had left, Senen seeks a partition of the farm to get his
share as the only co-heir of Peter. Peter interposes his
opposition, contending that acquisitive prescription has
already set in and that estoppel lies to bar the action for
partition, citing his continuous possession of the property
for at least 10 years, for almost 30 years in fact. It is
undisputed that Peter has never openly claimed sole
ownership of the property. If he ever had the intention to do
so, Senen was completely ignorant of it. Will Senens action
prosper? Explain. (5%).

SUGGESTED ANSWER: Senens action will prosper. Article
494 of the New Civil Code provides that no prescription
shall run in favor of a co-owner or co-heir against his co-
owners or co-heirs so long as he expressly or impliedly
recognizes the co-ownership nor notified Senen of his having
repudiated the same.

ALTERNATIVE ANSWER: Senens action will prosper. This
is a case of implied trust. (Art 1441, NCC) For purposes of
prescription under the concept of an owner (Art. 540, NCC).
There is no such concept here. Peter was a co-owner, he
never claimed sole ownership of the property. He is
therefore estopped under Art. 1431, NCC.

BAR 1993- OWNERSHIP; CO-OWNERSHIP;
REDEMPTION: In 1937, A obtained a loan of P20, 000.00
from the National City Bank of New York, an American-
owned bank doing business in the Philippines. To guarantee
payment of his obligation, A constituted a real estate
mortgage on his 30- hectare parcel of agricultural land. In
1939, before he could pay his obligation. A died intestate
leaving three children. B, a son by a first marriage, and C
and D, daughters by a second marriage. In 1940, the bank
foreclosed the mortgage for non-payment of the principal
obligation. As the only bidder at the extrajudicial foreclosure
sale, the bank bought the property and was later issued a
certificate of sale. The war supervened in 1941 without the
bank having been able to obtain actual possession of the
property which remained with A's three children who
appropriated for themselves the income from it. In 1948, B
bought the property from the bank using the money he
received as back pay from the U. S. Government, and
utilized the same in agribusiness. In 1960, as B's business
flourished, C and D sued B for partition and accounting of
the income of the property, claiming that as heirs of their
father they were co-owners thereof and offering to
reimburse B for whatever he had paid in purchasing the
property from the bank. In brief, how will you answer the
complaint of C and D, if you were engaged by D as his
counsel?

SUGGESTED ANSWER: As counsel of B, I shall answer the
complaint as follows: When B bought the property, it was
not by a right of redemption since the period therefore had
already expired. Hence, B bought the property in an
independent unconditional sale. C and D are not co-owners
with B of the property. Therefore, the suit of C and D cannot
prosper.

ALTERNATIVE ANSWER: As counsel of B, I shall answer
the complaint as follows: From the facts described, it would
appear that the Certificate of sale has not been registered.
The one-year period of redemption begins to run from
registration. In this case, it has not yet even commenced.
Under the Rules of Court, the property may be released by
the Judgment debtor or his successor in interest. (Sec. 29,
Rule 27). It has been held that this includes a joint owner.
(Ref. Magno vs.Ciola, 61 Phil. 80).

BAR 2002- OWNERSHIP; CO-OWNERSHIP;
REDEMPTION: Antonio, Bart, and Carlos are brothers.
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They purchased from their parents specific portions of a
parcel of land as evidenced by three separates deeds of
sale, each deed referring to a particular lot in meter and
bounds. When the deeds were presented for registration,
the Register of Deeds could not issue separate certificates
of Title. A single title had to be issued, therefore, in the
names of three brothers as co-owners of the entire
property. The situation has not changed up to now, but
each of the brothers has been receiving rentals exclusively
from the lot actually purchased by him. Antonio sells his
lot to a third person, with notice to his brothers. To enable
the buyer to secure a new title in his name, the deed of
sale was made to refer to undivided interest in the
property of the seller (Antonio), with the metes and
bounds of the lot sold being stated. Bart and Carlos
reacted by signifying their exercise of their right of
redemption as co-owners. Antonio in his behalf and in
behalf of his buyer, contends that they are no longer co-
owners, although the title covering the property has
remained in their names as such. May Bart and Carlos still
redeem the lot sold by Antonio? Explain. (5%)

SUGGESTED ANSWER: No, they may not redeem
because there was no Co-ownership among Antonio, Bart,
and Carlos to start with. Their parents already partitioned
the land in selling separate portions to them. The situation
is the same as in the case Si v. Court of Appeals, (342
SCRA 653 [2000]).

POSSESSION

Concept: The holding of the thing or the enjoyment of a
right with the intention to possess in ones own right.

Elements:
1. There must be holding or control of a thing or right;
exception: those cases mentioned in ART.537.
2. The holding or control must be with intention to
possess.
3. It must be in ones own right.

FORM OR DEGREES OF POSSESSION
1. possession without any title whatever mere
holding or possession without any right or title at all
e.g. thief, squatter;

2. possession with a juridical title possession is
predicated on a juridical relation existing between
the possessor and the owner of the thing but not in
the concept of owner e.g. lessee, usufructuary,
agent, pledgee, trustee;

3. possession with a just title possession of an
adverse claimant whose title is sufficient to transfer
ownership but is defective e.g when the seller is
not the true owner or could not transmit his rights
thereto to the possessor who acted in good faith;
4. possession with a title in fee simple
possession derived from the right of dominion or
possession of an owner note: THIS IS THE
HIGHEST DEGREE OF POSSESSION

ACQUISITION OF POSSESSION

How is it acquired: 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 acts and legal formalities established for
acquiring such right (Article 531).

Legal formalities contemplates delivery of the property,
whether actual or constructive

Acquired by Whom: Possession may be acquired by the
same person who is to enjoy it, by his legal representative,
by his agent, or by any person without any power whatever
but in the last case, the possession shall not be considered
as acquired until the person in whose name the act of
possession was executed has ratified the same, without
prejudice to the juridical consequences of negotiorum gestio
in a proper case (Art. 532).

2 KINDS OF POSSESSION
Usually possession may either be-
1. Possession in the concept of an owner [en concepto
de dueno]
2. Possession in the concept of a holder [en concepto de
tenedor]

POSSESSION IN THE CONCEPT OF AN OWNER

Possession in the concept of an owner DOES NOT refer
to the possessors inner belief or disposition regarding
the property in his possession.

Possession in the concept of an owner refers to his
overt acts which tend to induce the belief on the part
of others that he is the owner.

Possession in the concept of an owner is ius possidendi.

Possession in the concept of an owner by its nature is
provisional. It usually ends up as ownership.

Consequences of possession in the concept of an
owner
1. Possession is converted into ownership after the
required lapse of time [Article 540].
2. Presumption of just title [Art 541].

Relevance of the inner disposition of the possessor in
the concept of an owner [good faith, bad faith]

Although possession does refer to the overt acts of
the possessor, his disposition has relevance as to
other matters of possession.

I. GOOD FAITH
A. Requisites
i. Ostensible title or mode of acquisition - If its
not an ostensible title but a real title, then its
ownership.

ii. Vice or defect in the title - If there was no vice
or defect in the title, then its ownership.

Examples of vice or defect in title
1. Grantor was not the owner
2. Requirements for transmission were
not complied with
3. Mistake in the identity of the person
4. Property was not really res nullius
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iii. Possessor is ignorant of the vice or defect
and must have an honest belief that the
thing belongs to him
Otherwise, its bad faith.

B. EFFECTS OF GOOD FAITH

1. As to the fruits

Fruits already received [Art 544] -
Entitled to all the fruits until possession
is legally interrupted (i.e. before
summons).

Fruits still pending [Art 545] -
Entitled to pro-rate the fruits already
growing when his possession is legally
interrupted.

For example, possessor planted crops.
It takes the crops 4 months to grow. On
the beginning of the 4th month,
summons is served. At the end of the
4th month, the crops are harvested.
Under Article 545, the possessor is
entitled to of the crops since the
possessor was in possession for 3
months. However, he also pays of
the expenses.

2. As to necessary expenses [Art 546]
The possessor in good faith is entitled to
a refund of necessary expenses.

The possessor in good faith may retain
the thing until he is reimbursed for
necessary expenses.

3. As to useful expenses [Art 546 & 547]
The possessor in good faith is entitled to
a refund of useful expenses.

The possessor in good faith may retain
the thing until he is reimbursed for
useful expenses.

The other party has the option to
1. Refund the amount of expenses; or
2. Pay the increase in value which the
thing may have acquired

If the useful improvements can be
removed without damaging the principal
thing, the possessor in good faith may
remove them unless the other party
wants to keep the useful improvements.
In which case, the other party has to
exercise the two previous options.

4. As to ornamental expenses [Art 548]
The possessor in good faith is not
entitled to a refund for ornamental
expenses.
But he may remove the ornamental
improvements if they do not cause
damage to the principal thing.
5. As to prescription [Art 1132, 1134]
Movables- 4 years from possession
Immovable- 10 years from possession.

6. As to liability for deterioration or loss
[Art 552]
The possessor in good faith is not liable
since he thought that he was the owner.

Once the good faith ceases (i.e. summons
served), then the possessor is liable if
there was fraudulent intent or negligence.

II. BAD FAITH- effects of bad faith:

1) As to fruits [549]
The possessor in bad faith shall reimburse the
fruits receive and those which the legitimate
possessor could have received.

The possessor in bad faith has a right of
reimbursement for necessary expenses for the
production, gathering and preservation of the
fruits.

2) As to necessary expenses
The possessor in good faith is entitled to a
refund of necessary expenses.
The possessor in good faith has no right to
retain the thing until he is reimbursed for
necessary expenses.

3) As to useful expenses
The possessor in bad faith is not entitled to a
refund of useful expenses.

4) As to ornamental expenses
The possessor in bad faith is not entitled to a
refund of ornamental expenses.
The possessor in bad faith is entitled to remove
the ornamental improves only if:
i. Removal can be accomplished without
damaging the principal thing and
ii. The lawful possessor does not prefer to
retain the ornamental improvements by
paying the value thereof at the time he
enters into possession.

5) As to prescription [1132 & 1137]
Movables 8 years
Immovables 30 years

6) As to liability for deterioration or loss [Art
552]
The possessor in bad faith becomes an insurer
of the property. He is liable even if the thing is
destroyed, loss or deteriorates due to a
fortuitous event



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APPLICABLE PRESUMPTIONS IN POSSESSION AS
AN OWNER

1. Just title [541]
A possessor in the concept of owner has in his
favor the legal presumption that he possesses
just title and he cannot be obliged to show or
prove it.

2. Good faith [527, 559]
Good faith is always presumed, and upon him
who alleges bad faith on the part of a possessor
rests the burden of proof.
The possession of movables acquired in good
faith is equivalent to title.
Equivalent to title means presumptive title
sufficient to serve as a basis for prescription.
General Rule: A person who lost or has been
unlawfully deprived of the movable, may recover
it from the person who has possession of the
movable.
Unlawful deprivation extends to all instances
where there is no valid transmission (i.e. theft,
robbery, etc.)
Exceptions:
a. If the possessor obtained the movable in
good faith at a public sale, the owner cannot
get it back unless he reimburses the
possessor.
b. If the owner is estopped (Article 1505, 1)
c. If the disposition is made under any factors
act (Article 1505, 2)
d. Court order
e. If purchased by a merchants store (Article
1505(3)

An example of a merchants store would be
SM or Rustans. Without this exception,
commercial transactions would be
destabilized.

Article 1505, 3 states in accordance with
the Code of Commerce and special laws.
Articles 85 and 86 was repealed. Is Article
1505, 3 still applicable? Professor Balane
doesnt know.

f. If title is lost by prescription (Article 1132)
g. If the possessor is the holder in due course
of a negotiable instrument of title (Article
1518)

3. Continuity of Good Faith [528, 529]
Possession acquired in good faith does not lose
this character except in the case and from the
moment facts exist which show that the
possessor is not unaware that he possesses the
thing improperly or wrongfully.
It is presumed that possession continues to be
enjoyed on the same character in which it was
acquired, until the contrary is proved.

4. Non-interruption [554, 561]
A present possessor, who shows his possession at
some previous time, is presumed to have held
possession also during the intermediate period, in
the absence of proof to the contrary.
One, who recovers, according to law, possession
unjustly lost, shall be deemed for all purposes
which may redound to his benefit, to have enjoyed
it without interruption.

5. Extension to the movable within or inside [542,
426]
The possession of real property presumes that of
the movables therein, so long as it is not shown or
proved that they should be excluded.

POSSESSION IN THE CONCEPT OF A HOLDER

The possessor in the concept of a holder carries with it
no assertion of ownership. There are no overt acts
which would induce a belief on the part of others that
he is the owner.

The possessor in the concept of a holder acknowledges
a superior right in another person which the possessor
admits is ownership.

Possession in the concept of a holder is ius possessionis.
This is right to possess is an independent right (i.e.
lessee, trustee, agent, antichretic creditor, pledgee, co-
owner with respect to the entire thing, etc.)

Possession in the concept of a holder will never become
ownership.

Note that if the possessor repudiates the possession as
a holder, then from that time on he possesses the
property in the concept of an owner.

PRESUMPTIONS APPLICABLE

1. Non- interruption [554, 561]
A present possessor, who shows his possession at
some previous time, is presumed to have held
possession also during the intermediate period, in
the absence of proof to the contrary.

One, who recovers, according to law, possession
unjustly lost, shall be deemed for all purposes
which may redound to his benefit, to have enjoyed
it without interruption.

2. Extension of movable within or inside
The possession of real property presumes that of
the movables therein, so long as it is not shown or
proved that they should be excluded.

Note: In both possession in the concept of an owner and
possession in the concept of a holder, both are protected by

Article 539 - Every possessor has a right to be respected
in his possession; and should he be disturbed therein he
shall be protected in or restored to said possession by the
means established by the laws and the Rules of Court.

A possessor deprived of his possession through forcible entry
may within ten days from the filing of the complaint present
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a motion to secure from the competent court, in the
action for forcible entry, a writ of preliminary mandatory
injunction to restore him in his possession. The court shall
decide the motion within thirty (30) days from the filing
thereof.

LOSS OF POSSESSION

Possession maybe lost-
1. Abandonment [555] - Abandonment may either
be:
a. Permanent - There is no need for the
prescriptive period to run.
b. Temporary - Prescription will run.

See Article 1125

2. By assignment made to another either by
onerous or gratuitous title [555].

3. By destruction or total loss of the thing, or it
goes out of commerce [555].

See 1189 (1) (2)

4. By possession of another subject to the provisions
of Article 537, if the new possession has lasted
longer than 1 year. But the real right of possession
is not lost till after the lapse of 10 years [555]

The complaint for forcible entry must be filed
within 1 year from the forcible entry.
Accion publiciana must be filed after the lapse of
1 year from the forcible entry but before the
lapse of 10 years.
In this case, possession is not really lost until the
end of the 10th year.

5. By Accion Reinvindicatoria if an accion
reinvindicatoria was filed it has the following
effects:

Art. 1120. Possession is interrupted for the
purposes of prescription, naturally or civilly.

Art. 1121. Possession is naturally interrupted
when through any cause it should cease for more
than one year. The old possession is not revived
if a new possession should be exercised by the
same adverse claimant.

Art. 1122. If the natural interruption is for only
one year or less, the time elapsed shall be
counted in favor of the prescription.

Art. 1123. Civil interruption is produced by
judicial summons to the possessor.

Art. 1124. Judicial summons shall be deemed
not to have been issued and shall not give rise to
interruption: (1) If it should be void for lack of
legal solemnities; (2) If the plaintiff should desist
from the complaint or should allow the
proceedings to lapse; (3) If the possessor should
be absolved from the complaint. In all these cases,
the period of the interruption shall be counted for
the prescription.

6. Eminent Domain

RULES FOR LOSS OF MOVABLES

General Rule: possession of personal property acquired in
GF = title therefore the true owner cannot recover it

Exception: if the true owner
(1) lost the movable or
(2) has been unlawfully deprived

In either of these, he may recover the personal property not
only from the finder but also from those who may have
acquired it in GF form such finder or thief, without paying for
any indemnity except if possessor acquired it in public sale
(here, the possessor in GF is entitled to reimbursement).

Public saleis one where there has been a public notice of
the sale, in which anybody has a right to bid and offer to
buy

Requisites for Title:
1. that the possession is in GF
2. that the owner has voluntarily parted with the
possession of the thing
3. that the possessor is in the concept of an owner

Wild animals are possessed only while they are under one's
control; domesticated or tamed animals are considered
domestic or tame if they retain the habit of returning to the
premises of the possessor. (Art. 560)

DOCTRINE OF TACKING OF POSSESSION-

REMEDIES OF PERSONS DEPRIVE OF POSSESSION
1. Replevin
2. Accion interdictal [ejectment cases]
3. Accion publiciana
4. Accion reinvindicatoria- if the possession is in the
concept of an owner.

Bar 1993- Chattel Mortgage; Possession - A, about to
leave the country on a foreign assignment, entrusted to B
his brand new car and its certificate of registration. Falsifying
A's signature, B sold A's car to C for P200, 000.00. C then
registered the car in his name. To complete the needed
amount, C borrowed P100.000.00 from the savings and loan
association in his office, constituting a chattel mortgage on
the car. For failure of C to pay the amount owed, the savings
and loan association filed in the RTC a complaint for
collection with application for issuance of a writ of replevin
to obtain possession of the vehicle so that the chattel
mortgage could be foreclosed. The RTC issued the writ of
replevin. The car was then seized from C and sold by the
sheriff at public auction at which the savings and loan
association was the lone bidder. Accordingly, the car was
sold to it. A few days later, A arrived from his foreign
assignment. Learning of what happened to his car, A sought
to recover possession and ownership of it from the savings
and loan association. Can A recover his car from the savings
and loan association? Explain your answer.
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Suggested answer: Under the prevailing rulings of the
Supreme Court, A can recover the car from the Savings
and Loan Association provided he pays the price at which
the Association bought the car at a public auction. Under
that doctrine, there has been an unlawful deprivation by B
of A of his car and, therefore, A can recover it from any
person in possession thereof. But since it was bought at a
public auction in good faith by the Savings and Loan
Association, he must reimburse the Association at the
price for which the car was bought.

Alternative answer: Yes, A can recover his car from the
Savings and Loan Association. In a Chattel Mortgage, the
mortgagor must be the absolute owner of the thing
mortgaged. Furthermore, the person constituting the
mortgage must have the free disposal of the property, and
in the absence thereof, must be legally authorized for the
purpose. In the case at bar, these essential requisites did
not apply to the mortgagor B, hence the Chattel Mortgage
was not valid.

Bar 1995 - Chattel Mortgage; Preference of
Creditors - Lawrence, a retired air force captain, decided
to go into the air transport business. He purchased an
aircraft in cash except for an outstanding balance of P500,
000.00. He incurred an indebtedness of P300, 000.00 for
repairs with an aircraft repair company. He also borrowed
P1 Million from a bank for additional capital and
constituted a chattel mortgage on the aircraft to secure
the loan.

While on a test flight the aircraft crashed causing physical
injuries to a third party who was awarded damages of
P200, 000. 00. Lawrence's insurance claim for damage to
the aircraft was denied thus leaving him nothing else but
the aircraft which was then valued only at P1 Million.
Lawrence was declared insolvent.

Assuming that the aircraft was sold for Pl Million, give the
order of preference of the creditors of Lawrence and
distribute the amount of P1 Million.

Suggested answer: Assuming that the aircraft was sold
for P1 Million, there is no order of preference. The P1
Million will all go to the bank as a chattel mortgagee
because a chattel mortgage under Art. 2241 (4) NCC
defeats Art. 2244 (12) and (14}. Art. 2241 (3) and (5) are
not applicable because the aircraft is no longer in the
possession of the creditor.

RUINOUS BUILDINGS AND TREES IN DANGER OF
FALLING

Rules as to constructions: The owner has the duty to
demolish a building, or any other construction which is in
danger of falling or to repair the same in order to prevent
it from falling.

In case of his failure to do so, demolition of the structure
at the expense of the owner, or when demolition is not
necessary, take measures to insure public safety.

The owner is liable for damages whether or not he had
actual knowledge of the ruined condition of his building or
other construction.
Related provisions: See Articles 1723, 2190, 2191, 2192.

Rules as to trees: The owner of the tree shall be obliged
to remove it whenever it threatens to fall in such a way as to
cause damage to:
a. The land or tenement of another, OR
b. To travelers over a public or private road.

In case of his failure to do so, the administrative authorities,
in the exercise of police power, may order its removal at the
expense of the owner.

The police power of the State includes the power to abate
nuisance per se or per accidens. Ruinous buildings and trees
in danger of falling are nuisances per se.

USUFRUCT

USUFRUCT DEFINED - a real right, of a temporary nature,
which authorizes its holder to enjoy all the benefits which
result from the normal enjoyment of anothers property, with
the obligation to return, at the designated time, either the
same thing, or, in special cases, its equivalent

Elements in a Usufruct
1. Essential - The essential element of a usufruct is
that it is a real but temporary right to enjoy someone
elses property.

2. Natural - The natural element of a usufruct is the
obligation to preserve the form and substance the
property of another.

In extraordinary cases known as irregular or
imperfect or abnormal usufruct, this natural element
is not present. The usufructuary does not have to
return the same property.

3. Accidental - The accidental elements are those
which are the subject of stipulation (i.e. how long will
the usufruct last).

Basis Usufruct Lease
Extent Covers all fruits
and uses as a
rule.
Generally covers
only a particular
or specific use.
Nature of the
right

Is always a real
right.

Is a real right
only if, as in the
case of a lease
over real
property, the
lease is
registered or is
for more than
one year,
otherwise, it is
only a personal
right.
Creator of the
right
Can be created
only by the
owner or by a
duly authorized
agent, acting in
behalf of the
owner.
The lessor may
or may not be
the owner(as
when there is a
sub-lease or
when the lessor
is only a
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usufructuary)

Origin May be created
by law, contract,
last will or
prescription

May be created
as a rule only by
contract, and by
way of exception,
by law( as in the
case of an
implied new lease
or when a builder
has built in GF on
the land of
another a
building, when
the land is
considerably
worth more in
value than the
building)
Cause The owner is
more or less
passive, and
allows the
usufructuary to
enjoy the thing
given in usufruct
deja gozar
Owner or lessor
is more or less
active, and he
makes the lessee
enjoy-hace
gozar

Repairs Usufructuary has
the duty to make
ordinary repairs

The lessee
generally has no
duty to pay for
repairs.
Taxes Usufructuary
pays for annual
charges & taxes
on fruits.
Lessees can't
constitute a
usufruct on the
property leased.
Other things Usufructuary may
lease the
property itself to
another.


KINDS OF USUFRUCT

According to Source [Art 563]
a. Voluntary or Conventional (i.e. contracts,
donations, wills)
b. Legal created by law (i.e. Article 226, 2, Family
Code)

According to Extent [Art 564]
a. Total all of the fruits
b. Partial part of the fruits

According to Persons Enjoying the Right of
Usufruct [Art 564]
a. Simple only one usufructuary enjoys
b. Multiple several usufructuaries enjoy
i. Simultaneous
ii. Successive

According to the Terms of Usufruct [Art 564]
a. Pure no terms and conditions
b. Conditional
c. With a Term or Period

According to the Object of the Usufruct [Art 564]
a. Things
b. Rights
A usufruct may be constituted on a right
provided that it is not strictly personal or
intransmissible.

RIGHTS OF THE USUFRUCTUARY

1. Rights to the fruits [Art 566-570]
Not entitled to hidden treasures found in the land
subject of usufruct unless he is the finder.

Entitled to all the natural, industrial, and civil fruits
of the property in usufruct.

Natural or industrial fruits growing at the time the
usufruct begins belong to the usufructuary. Those
growing at the time the usufruct terminates belong
to the owner. The usufructuary at the beginning of
the usufruct, has no obligation to refund to the
owner any expenses incurred for the fruits.

The owner shall reimburse at the termination of
the usufruct from the proceeds of the growing
fruits, the ordinary expenses of cultivation incurred
by the usufructuary.

Rents derived from the lease of properties in
usufruct are civil fruits. The usufructuary is entitled
to receive such rents only up to the time of the
expiration of the usufruct, if the lease still subsists
after the termination of the usufruct. For example,
if the lease is for 5 years and the usufruct
terminates after the 2nd year, the usufructuary
shall be entitled to 2 years rent; the rent for the
remaining period will belong to the owner.

2. Right to enjoy increase in the accession or any
servitude [Art 571]
The usufructuary shall have the right to enjoy any
increase which the thing in usufruct may acquire
through accession, the servitudes established in its
favor, and, in general, all the benefits inherent
therein.

3. Right to alienate right of usufruct [Art 572, 590]
Consent of the naked owner is not needed for the
alienation of the right of usufruct.

The usufructuary may lease or alienate his right of
usufruct, even by gratuitous title.

All the contracts he may enter into as such
usufructuary shall terminate upon the expiration of
the usufruct except lease of rural lands, which shall
be considered as subsisting during the agricultural
year.

A usufructuary who alienates or leases his right of
usufruct shall answer for any damage which the
things in usufruct may suffer through the fault or
negligence of the person who substituted him.

4. Right to recover [Art 578]
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The usufructuary of an action to recover real
property or a real right, or movable property, has
the right to bring the action.

The owner is obligated to give him the authority
for this purpose and to furnish him whatever
proof he may have.

If in consequence of the enforcement of the
action he acquires the thing claimed, the usufruct
shall be limited to the fruits, the dominion
remaining with the owner.

5. Right to make useful and ornamental expenses
[Art 579]
Such right exists as long as he does not alter the
propertys form or substance.
The usufructuary shall have no right of
reimbursement.
The usufructuary may remove use improvements
if it is possible to do so without causing damage
to the property. [the usufructuary may remove
the improvement at the termination of the
usufruct.]
6. Right to any increase in the value due to
indispensable repairs made [Art 594]
The usufruct who has made the extraordinary
repairs necessary for preservation is entitled to
recover from the owner the increase in value
which the tenement acquired by reason of such
work.

OBLIGATIONS OF USUFRUCTUARY

1. To make and inventory [Art 583].
Inventory contains an appraisal of the movables
and a description of the immovables.

Effect of Not Giving: Articles 586, 599.

Art. 586. Should the usufructuary fail to give
security in the cases in which he is bound to give
it, the owner may demand that the immovables
be placed under administration, that the
movables be sold, that the public bonds,
instruments of credit payable to order or to
bearer be converted into registered certificates or
deposited in a bank or public institution, and that
the capital or sums in cash and the proceeds of
the sale of the movable property be invested in
safe securities. The interest on the proceeds of
the sale of the movables and that on public
securities and bonds, and the proceeds of the
property placed under administration, shall
belong to the usufructuary. Furthermore, the
owner may, if he so prefers, until the
usufructuary gives security or is excused from so
doing, retain in his possession the property in
usufruct as administrator, subject to the
obligation to deliver to the usufructuary the net
proceeds thereof, after deducting the sums which
may be agreed upon or judicially allowed him for
such administration.
Art. 599. The usufructuary may claim any matured
credits which form a part of the usufruct if he has
given or gives the proper security. If he has been
excused from giving security or has been able to
give it, or if that given is not sufficient, he shall
need the authorization of the owner, or of the court
in default thereof, to collect such credits. The
usufructuary who has given security may use the
capital he has collected in any manner he may
deem proper. The usufructuary who has not given
security shall invest the said capital at interest upon
agreement with the owner; in default of such
agreement, with judicial authorization; and, in
every case, with security sufficient to preserve the
integrity of the capital in usufruct.

Exceptions to making of inventory
a. Non-execution of an inventory does not
injure anyone [Art 585].
b. Waiver of owner [stipulation in the will or
contract]

2. Give security [Art 583]

Effect of Not Giving:
a. The owner may demand the following
1. That the immovables be placed under
administration
2. That the movables be sold
3. That the public bonds, instruments of credit
payable to order or bearer be converted into
registered certificates or deposited in a bank or
public institution
4. That the capital or sums of in cash and the
proceeds of the sale of the movable property be
invested in safe securities
The interest on the proceeds of the sale of
the movables and that on the public
securities and bonds and the proceeds of
the property placed under administration
shall belong to the usufructuary.

b. The owner if he so prefers shall retain possession
of the property as administrator until security is
given.
c. The usufructuary who has not given security shall
invest the capital collected at interest upon
agreement with the owner; in default of the
agreement with judicial authorization.

Instances when Security is not Required:
a. No one will be injured (Article 585)
b. Waiver
c. If usufructuary is the donor of the property (Article
584)
d. In case of usufruct by parents (Article 226, 2,
Family Code)

Exceptions:
When the value of the childrens property is
more than 50K.
When the parents contract a 2nd marriage
(Article 584)

e. In case of caucion juratoria (Article 587)
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Caucion juratoria refers to the case
contemplated by Art. 587 whereby the
usufructuary, being unable to file the
required bond or security, files a verified
petition in the proper court, asking for the
delivery of the house and furniture
necessary for himself and his family
without any bond or security.

The same rule shall also be applied to the
instruments or tools necessary for an
industry or vocation in which the
usufructuary is engaged.

3. Observe Due care [Art 589, 610]
Take care of the things in usufruct as a good
father of a family [diligentissimi bonus pater
familias].

Bad use of the thing in usufruct shall not
extinguish the usufruct. However, if the abuse
should cause considerable injury to the owner,
the owner may demand that the thing be
delivered to him. If the thing is delivered to the
owner, the owner shall deliver to the
usufructuary the net proceeds.

4. Answer for damages caused by his substitutes
fault of negligence [Art 590]
If the usufructuary alienates or leases his right of
usufruct, in case the things in usufruct should
suffer damage by the fault or negligence of the
usufructuarys substitute, the usufructuary is
liable.

5. Usufruct over livestock [Art 591].
If the usufruct be over livestock, the usufructuary
is obligated to replace with the young, the
animals that die each year from natural causes or
lost due to the rapacity of beasts.

If the animals on which the usufruct is
constituted should all perish, without the fault of
the usufructuary, on account of some contagious
disease or any other uncommon event, the
usufructuary shall fulfill his obligation by
delivering to the owner the remains which may
have been saved.

6. Make ordinary repairs & extraordinary reapirs
[Art 592]
The usufructuary is obligated to make ordinary
repairs.
Ordinary repairs mean those repairs which arise
out of the normal wear and tear of use.

If the usufructuary does not make ordinary
repairs, the owner may make ordinary repairs at
the expense of the usufructuary.

In case of extra-ordinary repairs naked owner
cannot be compelled to do it, unless it is
necessary for preservation. If the naked owner
does not make the repairs then the usufructuary
can undertake the repairs and he has the right to
be reimbursed for expenses incurred therefor by
the naked owner.

7. To notify the owners of urgent repairs [Art 593]
The usufructuary is obligated to notify the owner
when the need for such repairs is urgent.

8. To pay interest on the amount expended for
extra-ordinary repairs [Art 594]
If the owner should make extraordinary repairs, the
usufructuary is liable to pay legal interest on the
amount expended until the expiration of the
usufruct.

9. Allow work by owner which does not prejudice
the usufructuary [Art 595]
The owner may construct works and improvements
provided that such acts do not cause a diminution
of the value of the usufruct or prejudice the right of
the usufructuary.

10. Pay annual charges [Art 596- 597]
Annual charges and taxes imposed on the fruits are
shouldered by the usufructuary.
Land taxes on the usufruct are shouldered by the
owner in the absence of stipulation to the contrary.

11. To notify the owner of any act of 3
rd
person
detrimental to ownership [Art 601]
If the usufructuary does not notify the owner of the
any prejudicial act by a 3rd person, the
usufructuary shall be liable for damages.

Remedy of usufructuary if his possession to the
property subject of usufruct is prejudice:
a. Replevin
b. Accion interdictal
c. Accion publiciana

Note: it is the naked owner that has the legal
personality to file accion reinvindicatoria as a
remedy since the usufructuary is not the owner.
However, the usufructuary can avail of such
remedy if he repudiates the usufruct and started
possessing the property as an owner.

12. Shoulder the expenses, costs and liabilities in
suits involving the usufruct [Art 602].

13. Return the thing at the termination of the
usufruct [Art 612].
If in case the usufructuary or his heirs should be
reimbursed, there would be a right of retention by
the usufructuary or the heirs.

After delivery of the thing, the security shall be
cancelled.

USUFRUCT ON LAND AND BUILDING

I. Building is totally destroyed and insured
a) Premiums paid by naked owner and usufructuary
Building is rebuild- usufruct is not extinguish
on the land and building.
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Building not rebuild- usufruct on land
continues but naked owner usufruct
interest of insurance proceeds.

b) Premiums paid by naked owner only
Naked owner is entitled to the insurance
proceeds.
Building rebuild- usufruct on the building
cannot be continued, but usufruct on the
land continues.

EXTINGUISHMENT OF THE USUFRUCT

1. By death of the usufructuary (Article 603 (1))

Exceptions:
a. Contrary intention
b. Definite period [if the stipulated period for the
duration of the usufruct did not elapsed and
the usufructuary dies, his heirs shall not
acquire the usufruct unless there is a
stipulation to the contrary.]
c. When the usufruct is in favor of several persons
i. Successively or
ii. Simultaneously

2. By the expiration of the period for which it was
constituted or by the fulfillment of any
resolutory condition [Article 603 (2)]

3. By merger of the usufruct and ownership in the
same person [Article 603 (3)]

4. By renunciation of the usufructuary [Article 603
(4)]

5. By the total loss of the thing in usufruct [Article
603 (5)] - what if the thing subject of usufruct cannot
be returned? Liability of the usufructuary depends on
the manner of loss-
If loss due to bad faith- usufructuary is liable for
damages.
If loss was due to fortuitous event- usufructuary
has no liability.

6. By the termination of the right of the person
constituting the usufruct [Article 603 (6)]

7. By prescription [Article 603 (7)]

8. Non-fulfillment of a mode imposed on the
usufructuary.

9. Rescission or annulment of the contract.

10. Legal ways of extinguishing usufruct (i.e. termination
of parental authority terminates the parents usufruct
with regard to the childs adventitious property).

11. Mutual dissent.

12. Alienation by innocent purchaser for value (Article
709).

13. Happening of a resolutory condition.

USUFRUCT NOT TERMINATED

1. Expropriation- the owner is entitled to just
compensation and the interest thereon should be
delivered to the usufructuary.

2. Is the usufruct extinguished when the thing is
usufruct was badly used by the usufructuary? No!
Article 610- A usufruct is not extinguish by bad use of
the thing in usufruct; but if the abuse should cause
considerable injury to the owner, the latter may demand
that the thing be delivered to him, binding himself to
pay annually to the usufructuary the net proceeds of the
same, after deducting the expenses and compensation
which may be allowed him for its administration.

There is abuse if the usufructuary uses the thing is
usufruct in a manner not originally contemplated by the
parties.

However, if the usufruct was created via a contract, it
may be stipulated that bad use of the property in
usufruct may extinguish the usufruct.

Remember that the agreement in the contract is the law
between the parties.

EASEMENTS/ SERVITUDES

EASEMENT OR SERVITUDE DEFINED
Not a possessory right.

Easement has been defined as a real right constituted
on another' property, corporeal and immovable, by
virtue of which the owner of the same has to abstain
from doing or to allow somebody else to do something
on his property for the benefit of another thing or
person;

It may also be defined as an encumbrance imposed
upon an immovable for the benefit of another
immovable belonging to a different owner or for the
benefit of a community or one or more persons to
whom the encumbered estate does not belong by virtue
of which the owner is obliged to abstain from doing or
to permit a certain thing to be done on his estate

EASEMENT AND SERVITUDE DISTINGUISHED
easement is an English term while servitude which is
derived from Roman Law, is the name used in civil
law countries;
servitude is the broader term, it may be real or
personal while easement is always real;
it is said that easement refers to the right enjoyed by
one and servitude, the burden imposed upon another;

Characteristics of Easement
1. it is a real right but will affect third persons only when
duly registered;
2. it is enjoyed over another immovable, never on ones
own property;
3. it involves two neighboring estates, the dominant to
which a right belongs and the servient upon which
the obligation arises;
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4. it is inseparable from the estate to which it is
attached and, therefore, cannot be alienated
independently of the estate;
5. it is indivisible for it is not affected by the division
of the estate between two or more persons;
6. it is a right limited by the needs of the dominant
owner or estate, without possession;
7. it cannot consist in the doing of an act unless the
act is accessory in relation to a real easement;
8. it is a limitation on the servient owners rights of
ownership for the benefit of the dominant owner;
and therefore, it is not presumed

Easement established only on immovable
what the law treats of are not all immovables as
defined by the Civil Code but only those which are
so by their nature (are really capable of being
moved)

Nature of benefit to dominant estate
there can be no easement without a burden on an
estate for the benefit of another immovable
belonging to a different owner or of a person or a
group of persons

Distinguished from lease
1. easement is a real right, while lease is a real right
only when registered;
2. easement is imposed only on real property while
lease may involve either personal or real property;
3. in easement, there is a limited right to the use of
real property of another but without the right of
possession, while in lease, there is a limited right to
both the possession and use of anothers property

Distinguished from usufruct
1. easement is imposed only on real property, while
usufruct may involve either real or personal
property;
2. easement is limited to a particular or specific use of
the servient estate, while usufruct includes all the
uses and the fruits of the property;
3. easement is a non possessory right over an
immovable, while usufruct involves a right of
possession in an immovable or movable;
4. easement is not extinguished by the death of the
dominant owner, while usufruct is, as a rule,
extinguished by the death of the usufructuary

Note: both are real rights, whether registered or not, and
are transmissible

Can an easement be created over a usufruct? No,
because easements can only be created over an
immovable which is corporeal. A usufruct is a right which
is incorporeal and not corporeal.

May a usufruct be created over an easement? No,
although easement is a right but it cannot exist on its
own, it must be with an immovable. Therefore there can
be no usufruct over an easement because usufruct is a
possessory right while an easement is not.

May an easement be created over another
easement? No, easement is a real right over corporeal
things thus you cannot have an easement over right which
although real but not corporeal.

CLASSIFICATIONS OF EASEMENTS

1. as to recipient of benefit:
a. Real art. 613
b. Personal art. 614

2. as to its source:
a. Voluntary; - art. 619
b. Legal; - arts. 637 - 687
c. mixed

3. As to its exercise:
a. Continuous; - art. 615
b. Discontinuous art. 615

4. As to whether or not its existence is indicated:
a. Apparent; - art. 615
b. Non apparent art. 615

5. As to duty of servient owner
a. Positive; - art. 616
b. Negative art. 616

MODES OF ACQUIRING EASEMENTS

II. Title
Title means the juridical act which gives rise to
the servitude (i.e. law, donation, contract, will)

All kinds of easements can be created by title
a. Continuous and apparent easements
b. Continuous and non-apparent easements
c. Discontinuous and apparent easements
d. Discontinuous and non-apparent
easements

Equivalents of Title
a. Deed of recognition (Article 623)
b. Final judgment (Article 623)
c. Apparent sign (Article 624)

In Amor vs. Florentino owned a house and a
camarin. The house had 3 windows. From the
said windows the house receives light and air
from the lot where the camarin stood. The
camarin and the house were disposed of. The
windows were not closed. The SC said that an
easement of light and view had been
established. When ownership passed to theirs,
nothing was done to the windows. The new
owner of the house continued to exercise the
right of receiving light and air through those
windows. The visible and permanent sign of an
easement is the title that characterizes its
existence. Existence of the apparent sign had
the same effect as a title of acquisition of the
easement of light and view upon death of
original owner.

There is an error in Article 624 according to
Professor Balane. Article 624 provides The
existence. as title in order that the easement
may continue According to Professor Balane,
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the use of the word continue is wrong. It
should be the easement may arise since
there is no easement yet. There is no
easement yet since both properties have
only 1 owner. There are only seeds of a
potential easement.

III. Prescription
ONLY continuous and apparent easements may
be created by prescription.

In order for an easement to be acquired by
prescription, good faith or bad faith is irrelevant.
The easement can be acquired after the lapse of
10 years.

Counting of the 10 year prescriptive period.
a. Positive easements - Start counting
from the 1st act constituting the exercise
of the easement was performed.

b. Negative easements - Start counting
from the time when the owner of the
dominant estate serves a notarial
prohibition on the owner of the
prospective servient estate.

NOTE: Most easements are clearly positive or
negative easements. However, an easement of
light and view is both a positive and a negative
easement. There are special rules to determine the
counting of the prescriptive period.

a. Start counting from the 1st act constituting the
exercise of the easement was performed if
the opening through which the light and view
passes is a party wall.

Rationale: If the neighbor does not like the
opening, he can always close it.

b. Start counting from the time when the owner
of the dominant estate serves a notarial
prohibition on the owner of the prospective
servient estate if the opening is made on the
dominant owners own wall.

Rationale: The neighbor cannot close the
opening since its in the dominant owners
property.

RIGHST & OBLIGATIONS OF PARTIES IN AN
EASEMENT

RIGHTS OF THE DOMINANT OWNER:
1. to exercise all the rights necessary for the use of
the easement;
2. to make on the servient estate all the works
necessary for the use an preservation of the
servitude;
3. to renounce the easement if he desires to exempt
himself from contribution to necessary expenses;
4. to ask for mandatory injunction to prevent
impairment of his use of the easement


OBLIGATIONS OF THE DOMINANT OWNER
1. he cannot alter the easement or render it more
burdensome;

Exception: right of dominant owner to make
necessary works - the rights granted by art. 627 is
subject to the following conditions:
a. the works which shall be at his expense, are
necessary for the use and preservation of the
servitude;
b. they do not alter or render the servitude more
burdebsome;
c. the dominant owner, before making the works,
must notify the servient owner;
d. they shall be done at the most convenient time
and manner so as to cause the least
inconvenience to the servient owner

2. he shall notify the servient owner of works necessary
for the use and preservation of the servitude;
3. he must choose the most convenient time and
manner in making the necessary works as to cause
the least inconvenience to the servient owner;
4. he must contribute to the necessary expenses if there
are several dominant estates in proportion to the
benefits derived from the works

RIGHTS OF THE SERVIENT OWNER
1. to retain the ownership of the portion of the estate on
which the easement is established;
2. to make use of the easement, unless there is an
agreement to the contrary;
3. to change the place or manner of the use of the
easement provided it be equally convenient

OBLIGATIONS OF THE SERVIENT OWNER
1. he cannot impair the use of the easement;
2. he must contribute to the necessary expenses in case
he uses the easement, unless there is an agreement
to the contrary

Art. 625. Upon the establishment of an easement, all
the rights necessary for its use are considered
granted.

Upon the establishment of an easement, all the rights
necessary for its use are considered granted.

An example of this is Article 641. An easement for
drawing water may carry with it the easement of right
of way. If the well is in the middle of someone elses
property how can one draw water without having to
pass through that persons property?

Art. 626. The owner of the dominant estate cannot
use the easement except for the benefit of the
immovable originally contemplated. Neither can he
exercise the easement in any other manner than that
previously established.

Article 626 is a classic case of an intent that failed.
Article 626 was meant to overrule the ruling in
Valderrama vs. North Negros Sugar Co.
In Valderrama vs. North Negros Sugar Co.,
Valderrama executed a contract with North Negros
(NNSC) whereby NNSC agreed to install a sugar central
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of minimum capacity of 300 tons for grinding and
milling al sugar cane grown by Valderrama who in
turn bound himself to furnish the central all the cane
they might produce. A railroad was constructed on
Valderramas land to transport the sugarcane
harvested. However, Valderrama was unable to
supply the required amount of sugarcane. NNSC had
to contract with other sugarcane growers. Valderrama
alleges that the easement granted in favor of North
Negros was only for the transportation of the
sugarcane of Valderrama. The

SC said that the easement was created to enable
NNSC to build and maintain a railroad for
transportation of sugar cane. To limit use exclusively
to the cane of the hacienda owners would make the
contract ineffective. Furthermore, it is against the
nature of the easement to pretend that it was
established in favor of the servient estates. The
easement was created in favor of the corporation and
not for the hacienda owners. The corporation may
allow its wagons to pass by the tracks as many times
as it may deem fit.

The solution to the problem in Valderrama vs. NNSC
would be to stipulate in the contract that a violation
of the any of the conditions would terminate the
easement.

Art. 627. The owner of the dominant estate may
make, at his own expense, on the servient state
any works necessary for the use and preservation
of the servitude, but without altering it or
rendering it more burdensome. For this purpose he
shall notify the owner of the servient estate, and
shall choose the most convenient time and manner
so as to cause the least inconvenience to the owner
of the servient estate.

At his own expense, the owner of the dominant
estate may make any works on the servient estate
which are necessary for the use and preservation of
the servitude.

Such works cannot alter or make the servitude more
burdensome.

The owner of the dominant estate must notify the
owner of the servient estate. The owner of the
dominant estate must choose the most convenient
time and manner so as to cause the least
inconvenience to the owner of the servient estate.

Art. 628. Should there be several dominant estates,
the owners of all of them shall be obliged to
contribute to the expenses referred to in the
preceding article, in proportion to the benefits
which each may derive from the work. Any one
who does not wish to contribute may exempt
himself by renouncing the easement for the benefit
of the others. If the owner of the servient estate
should make use of the easement in any manner
whatsoever, he shall also be obliged to contribute
to the expenses in the proportion stated, saving an
agreement to the contrary.

If there are several dominant estates with a common
servitude, the expenses for its use and preservation
shall be shouldered by the owners of the dominant
estates in proportion to the benefit that they receive.

In the absence of proof to the contrary, the
presumption is that the benefits are equal.

If the owner of the servient estate also makes use of
the servitude, he must also contribute in proportion to
the benefit he receives.

EXTINGUISHMENT OF EASEMENTS

1. By merger of ownership of the dominant and
servient estates
The merger must be complete, absolute and
permanent.
If the owner of the servient estate becomes a co-
owner of the dominant estate, the easement
subsists since the merger is not complete.
If the sale is a pacto de retro sale, then the
merger is not complete. The easement is only
suspended.

2. Extinctive prescription
All the dominant owner of the estate has to do is
to stop using it continuously.
In the case of legal easements, the right to claim
is never extinguished. All the dominant owner of
the estate has to do is to claim it.
3. When either or both of the estates fall into such
condition that the easement cannot be used.
However, it shall be revived if the subsequent
condition of either or both of the estates should
permit its use. This is however subject to
extinctive prescription
This is not a ground for extinguishments. This is
a ground for suspension of the easement. The
suspension may eventually lead to
extinguishment of the easement if there is
extinctive prescription.

4. Expiration of the term of the fulfillment of the
condition.

5. Renunciation of the owner of the dominant
estate.
There is dispute as to whether or not the
renunciation can be tacit or not. According to
Professor Balane, it can be tacit under Article 6 of
the Civil Code. Rights may be waived. There is no
prescribed form.

6. Buy off the easement

7. Expropriation of the servient estate
There can be no easement over property of the
public dominion.

8. Permanent impossibility to make use of the
easement.

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9. Annulment or cancellation of the contract of
easement.

10. Resolution of grantors right to create the
easement.
A sells land to B via a pacto de retro sale. B while
being a vendee de retro grants an easement to
C. If A, the vendor, redeems, the easement given
to C is extinguished.

11. Registration of the servient estate as free and
without any encumbrance in the Torrens
System in favor of an innocent purchaser for
value.

12. Cessation of necessity, in case of a legal
easement of right of way (Article 655)

LEGAL EASEMENTS

I. WATERS
a. Natural Drainage of Lands - Article 637 (natural
drainage of lands) has been superseded by Article
50 of the Water Code.

Art. 637. Lower estates are obliged to receive the
waters which naturally and without the intervention
of man descend from the higher estates, as well as
the stones or earth which they carry with them.
The owner of the lower estate cannot construct
works which will impede this easement; neither can
the owner of the higher estate make works which
will increase the burden.

Art. 50, Water Code. Lower estates are obliged
to receive the waters which naturally and without
the intervention of man flow from the higher
estate, as well as the stone or earth which they
carry with them. The owner of the lower estate
cannot construct works which will impede this
natural flow, unless he provides an alternative
method of drainage; neither can the owner of the
higher estate make works which will increase this
natural flow.

b. Two paths - Article 638 (tow path) has been
superseded by Article 51 of the Water Code.

Art. 638. The banks of rivers and streams, even in
case they are of private ownership, are subject
throughout their entire length and within a zone of
three meters along their margins, to the easement
of public use in the general interest of navigation,
floatage, fishing and salvage. Estates adjoining the
banks of navigable or floatable rivers are,
furthermore, subject to the easement of towpath
for the exclusive service of river navigation and
floatage. If it be necessary for such purpose to
occupy lands of private ownership, the proper
indemnity shall first be paid.

Art. 51, Water Code. The banks of rivers and
streams and the shores of the seas and lakes
throughout their entire length and within a zone of
three (3) meters in urban areas, twenty (20)
meters in agricultural areas and forty (40) meters in
forest areas, along their margins are subject to the
easement of public use in the interest of recreation,
navigation, floatage, fishing and salvage. No person
shall be allowed to stay in this zone longer than what
is necessary for recreation, navigation, floatage,
fishing or salvage or to build structures of any kind.

c. Easement of Dams - Article 639 (easement of dam)
has been superseded by Articles 38 and 39 of the
Water Code.

Art. 639. Whenever for the diversion or taking of
water from a river or brook, or for the use of any
other continuous or discontinuous stream, it should
be necessary to build a dam, and the person who is
to construct it is not the owner of the banks, or lands
which must support it, he may establish the easement
of abutment of a dam, after payment of the proper
indemnity.

Art. 38, Water Code. Authority for the construction
of dams, bridges and other structures across of which
may interfere with the flow of navigable or floatable
waterways shall first be secured from the Department
of Public Works, Transportation and Communications.

Art. 39, Water Code. Except in cases of emergency
to save life or property, the construction or repair of
the following works shall be undertaken only after the
plans and specifications therefor, as may be required
by the Council, are approved by the proper
government agency; dams for the diversion or
storage of water; structures for the use of water
power, installations for the utilization of subterranean
or ground water and other structures for utilization of
water resources.

d. Drawing of Waters - Articles 640-641 are the
provisions regarding easement for drawing of waters.
Art. 640. Compulsory easements for drawing water
or for watering animals can be imposed only for
reasons of public use in favor of a town or village,
after payment of the proper indemnity.

Art. 641. Easements for drawing water and for
watering animals carry with them the obligation of the
owners of the servient estates to allow passage to
persons and animals to the place where such
easements are to be used, and the indemnity shall
include this service.

e. Easement of Aqueducts - Articles 642-646 are the
provisions for the easement of aqueduct. This should
be correlated with Article 49 of the Water Code.

Art. 642. Any person who may wish to use upon his
own estate any water of which he can dispose shall
have the right to make it flow through the intervening
estates, with the obligation to indemnify their owners,
as well as the owners of the lower estates upon which
the waters may filter or descend.

Art. 643. One desiring to make use of the right
granted in the preceding article is obliged:
(1) To prove that he can dispose of the water and
that it is sufficient for the use for which it is intended;
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(2) To show that the proposed right of way is the
most convenient and the least onerous to third
persons;
(3) To indemnify the owner of the servient estate in
the manner determined by the laws and
regulations.

Art. 644. The easement of aqueduct for private
interest cannot be imposed on buildings,
courtyards, annexes, or outhouses, or on orchards
or gardens already existing.
Art. 645. The easement of aqueduct does not
prevent the owner of the servient estate from
closing or fencing it, or from building over the
aqueduct in such manner as not to cause the latter
any damage, or render necessary repairs and
cleanings impossible.

Art. 646. For legal purposes, the easement of
aqueduct shall be considered as continuous and
apparent, even though the flow of the water may
not be continuous, or its use depends upon the
needs of the dominant estate, or upon a schedule
of alternate days or hours.

f. Stop lock and sluice gate - Article 647 is the
easement for the construction of stop lock and
sluice gate.

Art. 647. One who for the purpose of irrigating or
improving his estate, has to construct a stop lock or
sluice gate in the bed of the stream from which the
water is to be taken, may demand that the owners
of the banks permit its construction, after payment
of damages, including those caused by the new
easement to such owners and to the other
irrigators.

g. Appropriation and used of waters - Article 25
of the Water Code is the easement for
appropriation and use of waters.

Art. 25, Water Code. A holder of water permit
may demand the establishment of easements
necessary for the construction and maintenance of
the works and facilities needed for the beneficial
use of the waters to be appropriated subject to the
requirements of just compensation and to the
following conditions:
a. That he is the owner, lessee, mortgagee or
one having real right over the land upon
which he proposes to use water; and
b. That the proposed easement is the most
convenient and the least onerous to the
servient estate.

Easements relating to the appropriation and use of
waters may be modified by agreement of the
contracting parties provided the same is not
contrary to law or prejudicial to third persons.

II. RIGHT OF WAY

Requisites for an Easement of Right of Way:

a. The dominant estate is surrounded by other
immovables without an adequate outlet to a
public highway.

The right of way may be demanded:
i. When there is absolutely no access to a
public highway
ii. When, even if there is one, it is difficult
or dangerous to use, or is grossly
insufficient (i.e. access is through a
steep cliff)
Mere inconvenience is not aground for
demanding the easement of right of way (i.e.
there is an adequate outlet, but it is not paved)

b. The dominant estate is willing to pay the
proper indemnity.
If the right of way is permanent, payment shall
be equivalent to the value of the land occupied
and the amount of the damage caused to the
servient estate.

Such payment for permanent use does not
mean that the owner of the dominant estate
now owns such portion of the land.

If a piece of land is acquired by sale,
exchange, partition or partition, and the land is
surrounded by other estates of the vendor,
exchanger or co-owner, a right of way shall be
given without having to pay the indemnity
(Article 652)

If it is the land of the vendor, exchanger or co-
owner that becomes isolated, he may demand
a right of way, provided that he pay the proper
indemnity (Article 653)
If a piece of land is acquired by donation, and
such land is surrounded by other estates of the
donor, the donee must pay the proper
indemnity in order to get a right of way (Article
652).

If it is the land of the donor that becomes
isolated, he may demand a right of way
without having to pay the indemnity (Article
653).

c. The isolation was not due to the acts of the
proprietor of the dominant estate.

In Article 649, it states that the isolation must
not be due to the act of the proprietor of the
dominant estate. Yet, in Article 653, the
proprietor of the dominant estate may demand
an easement of right of way even though the
isolation was caused by his act. Is there a
conflict between Article 649 and Article 653?
To reconcile, Article 653 deals with a specific
instance.

d. That the right of way claimed is at the point
least prejudicial to the servient estate; and
insofar as consistent with this rule, where
the distance from the dominant estate to a
public highway may be the shortest.
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Extinguishment of Easements of Right of
Way (Article 655).

The fact that an adequate outlet has been
created does not automatically extinguish
the a legal easement of right of way. It must
be asked for by the owner of the servient
estate.

The owner of the dominant estate cannot
demand that the easement be extinguished.

Article 655 is applicable only to legal
easements of right of way. It does not apply
to voluntary easements of right of way.

III. PARTY WALL
A party wall is a common wall built along the
dividing line of 2 adjoining estates.

Nature of a Party Wall
a. Easement - Manresa and Castan believe
that a party wall is predominantly an
easement.
b. Co-ownership (i.e. Article 666) -
Sanchez Roman believes that a party wall
is predominantly a co-ownership.

Special Characteristics of a Party Wall as Co-
Ownership
i. This co-ownership is indivisible - Cannot
physically divide
ii. The parts pertaining to each co-owner can
be materially designated and yet the whole
wall is co-owned iii. The rights of a co-owner
of a party wall are greater than an ordinary
co-owner.

Maintenance and Repair of Party Wall (Article
662)

General Rule: The expense for the repair and
maintenance of the party wall shall be
shouldered by the co-owners in proportion to the
right of each.

Presumption: Co-owners have equal proportion
(share equally in the expenses).

Exceptions:
a. The expense for the repair of the party
wall can be shouldered by 1 co-owner, but
the co-owner who does not contribute
must renounce his share in the party wall.

Commentators are of different opinions
regarding the extent of the renunciation
total or proportional to the amount of
repairs.

b. When the defects are caused by 1 owner,
he shall pay for all the expenses for repair.

Presumption of Party Wall - A party wall is
presumed when a wall divides:
a. Adjoining buildings
b. Gardens or yards situated in cities, towns or
in rural communities
c. Rural lands

This presumption may be rebutted if there is
a contrary:
a. Title; or
b. Exterior sign or

The following are exterior signs which
will be rebut the presumption
i. A window or opening in the dividing
wall
ii. On 1 side, the wall is straight and
then the wall juts out.

A buttress is placed part where the
wall juts out. This is done in order to
prevent the neighbor from invading
his property.

iii. The entire wall is built within the
boundary of 1 of the estates (not
along the boundary of the 2 estates)
iv. When the wall supports the building
of 1 estate but not the other
v. When the dividing wall between the
courtyards, gardens, and tenements is
constructed in such a way that the
coping sheds the water upon only 1 of
the estates
vi. Stepping stones only on 1 side of the
wall
vii. When 1 estate is enclosed but the
other is not

Commentators do not agree as to
whether or not this enumeration is
exclusive.
c. Proof

IV. LIGHT AND VIEW

2 Different Easements
1. Easement of light (luminis)
The easement of light is the right to make an
opening not greater than 30 centimeters
square and to receive light from anothers
tenement.

The opening must be made on the ceiling or if
on the wall, there must be an iron grating (so
you cant look out, otherwise, it becomes an
easement of light and view).

No minimum distance required.

2. Easement of light and view (luminis et
prospectus)
The easement of light and view is the right to
open windows and apertures and to bar the
owner of the servient estate to block the view.

The easement of view necessarily carries with
it the easement of light.

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Direct View: There must be a minimum
distance of 2 meters from the wall of the
opening and the contiguous property.

Oblique View: There must be a minimum
distance of 60 centimeters from the wall of
the opening and the contiguous property.

Non-observance of the minimum distances
will not create an easement.

The owner of the servient estate cannot
build within 3 meters from the boundary
between the servient and the dominant
estate. Thus, there is 5 meters between the
wall of the opening and any structure of the
servient estate.

The obligation not to build higher
accompanies the easements of light and
view.

Acquiring by Prescription
a. Start counting from the 1st act
constituting the exercise of the
easement was performed if the
opening through which the light and
view passes is a party wall.

Rationale: If the neighbor does not like
the opening, he can always close it.

b. Start counting from the time when the
owner of the dominant estate serves a
notarial prohibition on the owner of the
prospective servient estate if the
opening is made on the dominant
owners own wall.

Rationale: The neighbor cannot close
the opening since its in the dominant
owners property.

OTHER LEGAL EASEMENTS

1. Drainage of Buildings [Art 674-676]
Art. 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the
rain water shall fall on his own land or on a street or
public place, and not on the land of his neighbor,
even though the adjacent land may 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 in such a way as not to
cause damage to the adjacent land or tenement.

Art. 675. The owner of a tenement or a piece of
land, subject to the easement of receiving water
falling from roofs, may build in such manner as to
receive the water upon his own roof or give it another
outlet in accordance with local ordinances or customs,
and in such a way as not to cause any nuisance or
damage whatever to the dominant estate.

Art. 676. Whenever the yard or court of a house is
surrounded by other houses, and it is not possible to
give an outlet through the house itself to the rain water
collected thereon, the establishment of an easement of
drainage can be demanded, giving an outlet to the
water at the point of the contiguous lands or tenements
where its egress may be easiest, and establishing a
conduit for the drainage in such manner as to cause the
least damage to the servient estate, after payment of
the property indemnity.

This is not really an easement. Rather, it is a
limitation of the right of ownership.

2. Intermediate distances [Art 677-681]
Art. 677. No constructions can be built or plantings
made near fortified places or fortresses without
compliance with the conditions required in special laws,
ordinances, and regulations relating thereto.

Art. 678. No person shall build any aqueduct, well,
sewer, furnace, forge, chimney, stable, depository of
corrosive substances, machinery, or factory which by
reason of its nature or products is dangerous or
noxious, without observing the distances prescribed by
the regulations and customs of the place, and without
making the necessary protective works, subject, in
regard to the manner thereof, to the conditions
prescribed by such regulations. These prohibitions
cannot be altered or renounced by stipulation on the
part of the adjoining proprietors. In the absence of
regulations, such precautions shall be taken as may be
considered necessary, in order to avoid any damage to
the neighboring lands or tenements.

Art. 679. No trees shall be planted near a tenement or
piece of land belonging to another except at the
distance authorized by the ordinances or customs of the
place, and, in the absence thereof, at a distance of at
least two meters from the dividing line of the estates if
tall trees are planted and at a distance of at least fifty
centimeters if shrubs or small trees are planted. Every
landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or
tenement be uprooted. The provisions of this article also
apply to trees which have grown spontaneously.

Art. 680. If the branches of any tree should extend
over a neighboring estate, tenement, garden or yard,
the owner of the latter shall have the right to demand
that they be cut off insofar as they may spread over his
property, and, if it be the roots of a neighboring tree
which should penetrate into the land of another, the
latter may cut them off himself within his property.

Art. 681. Fruits naturally falling upon adjacent land
belong to the owner of said land.

Again, this is a limitation of ownership and
not an easement.
This is basically zoning which can be
modified by laws and ordinances.

3. Easement Against Nuisances [Art 682-683]
Art. 682. Every building or piece of land is subject to
the easement which prohibits the proprietor or
possessor from committing nuisance through noise,
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jarring, offensive odor, smoke, heat, dust, water,
glare and other causes.

Art. 683. Subject to zoning, health, police and other
laws and regulations, factories and shops may be
maintained provided the least possible annoyance is
caused to the neighborhood.

This is also a limitation of ownership and not an
easement.

Nuisance is any act, omission, establishment,
condition, property or anything else which
(Article 694):
a. Injures or endangers the health or safety of
others; or
b. Annoys or offends the senses; or
c. Shocks, defies or disregards decency or
morality; or
d. Obstructs or interferes with the free
passage of any public highway or streets,
or any body of water; or
e. Hinders or impairs the use of property.

4. Lateral and Subjacent Support [Art 684-687]

Sec. 684. No proprietor shall make such excavations
upon his land as to deprive any adjacent land or
building of sufficient lateral or subjacent support.

Art. 685. Any stipulation or testamentary provision
allowing excavations that cause danger to an
adjacent land or building shall be void.

Art. 686. The legal easement of lateral and
subjacent support is not only for buildings standing at
the time the excavations are made but also for
constructions that may be erected.

Art. 687. Any proprietor intending to make any
excavation contemplated in the three preceding
articles shall notify all owners of adjacent lands.

In lateral support, there is an obligation to see to
it that the structures on your neighbors land will
not collapse from your lands lack of support.
In subjacent support, the owner of the surface
and the sub-surface are different.

Voluntary Easements
One can create voluntary easements in favor of
another immovable or persons on ones property.

In La Vista vs. CA, the easement of right of way
was not a legal easement but was created because
of a contract. Since it was created by a contract,
the requisites for a right of way under Arts. 649
and 650 need not be followed.

Voluntary easement maybe extinguish also
by voluntary agreement of the parties to the
easement.

BAR 2005- Easement; Effects; Discontinuous
Easements; Permissive Use: Don was the owner of an
agricultural land with no access to a public road. He had
been passing through the land of Ernie with the latter's
acquiescence for over 20 years. Subsequently, Don
subdivided his property into 20 residential lots and sold them
to different persons. Ernie blocked the pathway and refused
to let the buyers pass through his land.

a) Did Don acquire an easement of right of way?
Explain. (2%)

Suggested answer: No, Don did not acquire an easement
of right of way. An easement of right of way is discontinuous
in nature it is exercised only if a man passes over
somebody's land. Under Article 622 of the Civil Code,
discontinuous easements, whether apparent or not, may
only be acquired by virtue of a title. The Supreme Court, in
Abellana, Sr. v. Court of Appeals (G.R. No. 97039, April 24,
1992), ruled that an easement of right of way being
discontinuous in nature is not acquirable by prescription.
Further, possession of the easement by Don is only
permissive, tolerated or with the acquiescence of Ernie. It is
settled in the case of Cuaycong v. Benedicto (G.R. No. 9989,
March 13, 1918) that a permissive use of a road over the
land of another, no matter how long continued, will not
create an easement of way by prescription.

Alternative answer: Yes, Don acquired an easement of
right of way. An easement that is continuous and apparent
can be acquired by prescription and title. According to
Professor Tolentino, an easement of right of way may have a
continuous nature if there is a degree of regularity to indicate
continuity of possession and that if coupled with an apparent
sign, such easement of way may be acquired by
prescription.

b) Can Ernie close the easement?

Suggested answer: Yes, Ernie could close the pathway on
his land. Don has not acquired an easement of right of way
either by agreement or by judicial grant. Neither did the
buyers. Thus, establishment of a road or unlawful use of the
land of Ernie would constitute an invasion of possessory
rights of the owner, which under Article 429 of the Civil Code
may be repelled or prevented. Ernie has the right to exclude
any person from the enjoyment and disposal of the land.
This is an attribute of ownership that Ernie enjoys.

Alternative answer: Yes, Ernie may close the pathway,
subject however, to the rights of the lot buyers. Since there
is no access to the public road, this results in the creation of
a legal easement. The lot buyers have the right to demand
that Ernie grant them a right of way. In turn, they have the
obligation to pay the value of the portion used as a right of
way, plus damages.

c) What are the rights of the lot buyers, if any?
Explain. (2%)

Suggested answer: Prior to the grant of an easement, the
buyers of the dominant estate have no other right than to
compel grant of easement of right of way. Since the
properties of the buyers are surrounded by other
immovables and has no adequate outlet to a public highway
and the isolation is not due to their acts, buyers may
demand an easement of a right of way provided proper
indemnity is paid and the right of way demanded is the
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shortest and least prejudicial to Ernie. (Villanueva v.
Velasco, G.R. No. 130845, November 27, 2000).

BAR 2002- Easement; Nuisance; Abatement: Lauro
owns an agricultural land planted mostly with fruit trees.
Hernando owns an adjacent land devoted to his piggery
business, which is two (2) meters higher in elevation.
Although Hernando has constructed a waste disposal
lagoon for his piggery, it is inadequate to contain the
waste water containing pig manure, and it often overflows
and inundates Lauros plantation. This has increased the
acidity of the soil in the plantation, causing the trees to
wither and die. Lauro sues for damages caused to his
plantation. Hernando invokes his right to the benefit of a
natural easement in favor of his higher estate, which
imposes upon the lower estate of Lauro the obligation to
receive the waters descending from the higher estate. Is
Hernando correct? (5%)

Suggested answer: Hernando is wrong. It is true that
Lauros land is burdened with the natural easement to
accept or receive the water which naturally and without
interruption of man descends from a higher estate to a
lower estate. However, Hernando has constructed a waste
disposal lagoon for his piggery and it is this waste water
that flows downward to Lauros land. Hernando has, thus,
interrupted the flow of water and has created and is
maintaining a nuisance. Under Act. 697 NCC, abatement
of a nuisance does not preclude recovery of damages by
Lauro even for the past existence of a nuisance. The claim
for damages may also be premised in Art. 2191 (4) NCC.

Another answer: Hernando is not correct. Article 637 of
the New Civil Code provides that the owner of the higher
estate cannot make works which will increase the burden
on the servient estate. (Remman Enterprises, Inc. v. CA,
330 SCRA 145 [2000]). The owner of the higher estate
may be compelled to pay damages to the owner of the
lower estate.

BAR 1993- Easements; Right of Way: Tomas
Encarnacion's 3,000 square meter parcel of land, where
he has a plant nursery, is located just behind Aniceta
Magsino's two hectare parcel land. To enable Tomas to
have access to the highway, Aniceta agreed to grant him a
road right of way a meter wide through which he could
pass. Through the years Tomas' business flourished which
enabled him to buy another portion which enlarged the
area of his plant nursery. But he was still landlocked. He
could not bring in and out of his plant nursery a jeep or
delivery panel much less a truck that he needed to
transport his seedlings. He now asked Aniceta to grant
him a wider portion of her property, the price of which he
was willing to pay, to enable him to construct a road to
have access to his plant nursery. Aniceta refused claiming
that she had already allowed him a previous road right of
way. Is Tomas entitled to the easement he now demands
from Aniceta?

Suggested answer: Art. 651 of the Civil Code provides
that the width of the easement must be sufficient to meet
the needs of the dominant estate, and may accordingly
change from time to time. It is the need of the dominant
estate which determines the width of the passage. These
needs may vary from time to time. As Tomas' business
grows, the need for use of modern conveyances requires
widening of the easement.

Alternative answer: The facts show that the need for a
wider right of way arose from the increased production
owing to the acquisition by Tomas of an additional area.
Under Art. 626 of the Civil Code, the easement can be used
only for the immovable originally contemplated. Hence, the
increase in width is justified and should have been granted.

BAR 2000- Easements; Right of Way: The coconut farm
of Federico is surrounded by the lands of Romulo. Federico
seeks a right of way through a portion of the land of Romulo
to bring his coconut products to the market. He has chosen
a point where he will pass through a housing project of
Romulo. The latter wants him to pass another way which is
one kilometer longer. Who should prevail? (5%)

Suggested answer: Romulo will prevail. Under Article 650
of the New Civil Code, the easement of right of way shall be
established at the point least prejudicial to the servient
estate and where the distance from the dominant estate to a
public highway is the shortest. In case of conflict, the
criterion of least prejudice prevails over the criterion of
shortest distance. Since the route chosen by Federico will
prejudice the housing project of Romulo, Romulo has the
right to demand that Federico pass another way even
though it will be longer.

BAR 2001- Easements; Right of Way; Inseparability:
Emma bought a parcel of land from Equitable-PCI Bank,
which acquired the same from Felisa, the original owner.
Thereafter, Emma discovered that Felisa had granted a right
of way over the land in favor of the land of Georgina, which
had no outlet to a public highway, but the easement was not
annotated when the servient estate was registered under
the Torrens system. Emma then filed a complaint for
cancellation of the right of way, on the ground that it had
been extinguished by such failure to annotate. How would
you decide the controversy? (5%)

Suggested answer: The complaint for cancellation of
easement of right of way must fail. The failure to annotate
the easement upon the title of the servient estate is not
among the grounds for extinguishing an easement under
Art. 631 of the Civil Code. Under Article 617, easements are
inseparable from the estate to which they actively or
passively belong. Once it attaches, it can only be
extinguished under Art. 631, and they exist even if they are
not stated or annotated as an encumbrance on the Torrens
title of the servient estate. (II Tolentino 326, 1987 ed.)

Alternative answer: Under Section 44, PD No. 1529, every
registered owner receiving a certificate of title pursuant to a
decree of registration, and every subsequent innocent
purchaser for value, shall hold the same free from all
encumbrances except those noted on said certificate. This
rule, however, admits of exceptions. Under Act 496, as
amended by Act No. 2011, and Section 4, Act 3621, an
easement if not registered shall remain and shall be held to
pass with the land until cutoff or extinguished by the
registration of the servient estate.

However, this provision has been suppressed in Section 44,
PD No. 1529. In other words, the registration of the servient
estate did not operate to cut-off or extinguish the right of
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way. Therefore, the complaint for the cancellation of the
right of way should be dismissed.

BAR 1996- Easements; Right of Way; Requisites:
David is the owner of the subdivision in Sta. Rosa,
Laguna, without an access to the highway. When he
applied for a license to establish the subdivision, David
represented that he will purchase a rice field located
between his land and the highway, and develop it into an
access road. But when the license was already granted, he
did not bother to buy the rice field, which remains
unutilized until the present. Instead, he chose to connect
his subdivision with the neighboring subdivision of Nestor,
which has an access to the highway. Nestor allowed him
to do this, pending negotiations on the compensation to
be paid. When they failed to arrive at an agreement,
Nestor built a wall across the road connecting with David's
subdivision. David filed a complaint in court, for the
establishment of an easement of right of way through the
subdivision of Nestor which he claims to be the most
adequate and practical outlet to the highway. 1) What are
the requisites for the establishment of a compulsory
easement of a right of way?

Suggested answer: Art, 649, NCC. The owner, or any
person who by virtue of a real right may cultivate or use
any immovable which is surrounded by other immovables
pertaining to other persons and without adequate outlet to
a public highway, is entitled to demand a right of way
through the neighboring estates, after payment of the
property indemnity. Should this easement be established
in such a manner that its use may be continuous for all
the needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of the
value of the land occupied and the amount of the damage
caused to the servient estate. In case the right of way is
limited to the necessary passage for the cultivation of the
estate surrounded by others and for the gathering of its
crops through the servient estate without a permanent
way, the indemnity shall consist in the payment of the
damage cause by such encumbrance. This easement is
not compulsory if the isolation of the immovable is due to
the proprietor's own acts. (564a). The easement of right
of way shall be established at the point least prejudicial to
the servient estate, and insofar as consistent with this
rule, where the distance from the dominant estate to a
public highway may be the shortest (Art. 650, NCC: Vda.
De Baltazar v. CA. 245 SCRA 333)

Alternative answer: The requisites for a compulsory
easement of right of way are: (a) the dominant estate is
surrounded by other immovables and is without an
adequate outlet to a public street or highway; (b) proper
indemnity must be paid; (c) the isolation must not be due
to the acts of the owner of the dominant estate; and (d)
the right of way claimed is at a point least prejudicial to
the servient estate and, insofar as is consistent with this
rule, where the distance to the street or highway is
shortest.

2) Is David entitled to a right of way in this case?
Why or why not? No, David is not entitled to the right of
way being claimed. The isolation of his subdivision was
due to his own act or omission because he did not develop
into an access road the rice field which he was supposed
to purchase according to his own representation when he
applied for a license to establish the subdivision (Floro us.
Llenado, 244 SCRA713).

DIFFERENT MODES OF ACQUIRING OWNERSHIP

CONCEPT OF MODE AND TITLE
MODE is the specific cause which produces them as a
result of the presence of a special condition of things,
of the capacity and intention of persons, and of the
fulfillment of the requisites established by law;

TITLE is the juridical act, right or condition which
gives the means to their acquisition but which in itself
is insufficient to produce them

MODE AND TITLE DISTINGUISHED
1. mode directly and immediately produces a real right,
while title serves merely to give the occasion for its
acquisition or existence;
2. mode is the cause, while title is the means;
3. mode is the proximate cause, while title may be
regarded as the remote cause;
4. mode is the essence of the right which is to be
created or transmitted, while title is the means
whereby that essence is transmitted

DIFFERENT MODES [AND TITLES] OF ACQUIRING
OWNERSHIP AND OTHER REAL RIGHTS
1. Original modes or those independent of any pre
existing right of another person, namely:
a. occupation;
b. Work which includes intellectual creation.

2. Derivative modes or those based on a pre
existing right held by another person, namely:
a. law;
b. donation;
c. succession;
d. tradition;
e. prescription

3. Mixed Mode
A 3rd mode was created since prescription could
not be classified as original or derivative.

Prescription

LAW AS A MODE OF ACQUISITION

When the Civil Code speaks of law as a mode of acquisition,
it refers to it as a distinct mode or to those cases where the
law, independent of other modes, directly vests ownership of
a thing in a person once the prescribed conditions or
requisites are present or complied with.

TRADITION AS A MODE OF ACQUISITION

Tradition comes from the latin word tradere which
means to deliver.
Tradition is a mode of acquiring ownership as a
consequence of certain contracts such as sale by virtue
of which, actually or constructively, the object is placed
in the control and possession of the transferee.

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Tradition is a derivative mode of acquiring ownership
and other real rights by virtue of which, there being
intention and capacity on the part of the grantor and
grantee and the pre existence of said rights in the
estate of the grantor, they are transmitted to the
grantee through a just title;

The principal kinds of tradition are as ff:
a. real tradition or physical delivery which takes place
when the thing is physically delivered or transferred
from hand to hand if it is a movable, and if it is an
immovable, by certain acts also material, performed
by the grantee in the presence of and with consent
of the grantor which acts generally called taking
possession;

b. constructive tradition or when the delivery of the
thing is not real or material but consists merely in
certain facts indicative of the same, this may take
place in any of the ff cases:
symbolical tradition;
tradition by public instrument;
tradtion longa manu;
tradition brevi manu;
tradition constitutum possessorium;
quasi tradition;
tradition by operation of law

KINDS OF TRADITION

1. Real or material physical delivery (Article 1497)

2. Fingida constructive
a. Simbolica (Article 1498)

Requisites
i. Transferor must have control of the thing
The transferor must have actual
possession.

ii. Transferee must be put in control iii. There
must be intent to transfer.

In Aviles vs. Arcega, a very controversial
decision, the Alcantara sold the house to Aviles
as evidenced by a document acknowledged
before a notary public. The document stated that
Alcantara would continue to possess the house
for 4 months. Aviles never took possession of the
property even after the lapse of 4 months.
Alcantara sold the house to Arcega. The SC said
that Aviles cannot invoke symbolic delivery as
this was prevented by express stipulation that
Alcantara would continue in possession. The fact
that 4 months had lapsed does not mean that
there was symbolic delivery since there is no law
providing that is should take place after the
execution of the document where there is
stipulation to the contrary.

This case is controversial since those who
dissented are the 4 civil law experts.

Traditio clarium is part of tradicion simbolica.
Traditio clarium is applicable only to personal
property (i.e. keys). In Banco Filipino vs.
Peterson, the goods in the warehouse were
delivered when the keys to the warehouse were
given.

b. Longa manu (Articles 1496 and 1499, 1st part)
Longa manu means long hand. Literally this
means that the transfer of ownership is done
by pointing out. For example, the ownership of
the car is transferred by pointing to the specific
car.

In longa manu, mere agreement is not
enough. There must be an accompanying sign
or gesture (Article 1499).

c. Brevi manu (Article 1499)
Brevi manu means short hand.

Brevi manu occurs when the transferee was
already in possession before he had acquired
ownership. For example, the lessee is renting
the house. The lessor sells the house to the
lessee.

d. Constitutum possessorium (Article 1500)
Constitutum possessorium is the opposite of
brevi manu. In this case, the transferor already
in possession and continues to be in
possession under a different capacity after
ownership had been transferred.
For example, A owns a house. A sells the
house to B. A then leases the house to B.

3. Quasi-tradition (cuasi tradicion)
Quasi-tradition refers to the delivery of
incorporeal property.
For example, shares of stock cannot be
physically transferred. What is delivered are
the stock certificates. The endorsement of the
stock certificate is delivery by quasi-tradition.
However, in Tablante vs. Aquino, the SC
applied quasi-tradition to tangible property.
According to Professor Balane, this is wrong. It
should be tradicion simbolica.

4. By operation of law (por ministerio de la ley)
Succession should not be included here since
succession is an independent mode of acquiring
ownership. It is not part of tradition


OCCUPATION

CONCEPT OF OCCUPATION: it may be defined as the
appropriation of things appropriable by nature which is
without an owner.

Requisites:
1. there must be seizure of a things;
2. the thing seized must be corporeal personal property;
3. the thing must be susceptible of appropriation by
nature;
4. the thing must be without an owner;
5. there must be an intention to appropriate;
6. the requisites or conditions laid down by law must be
complied with
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OCCUPATION AND POSSESSION DISTINGUISHED
1. occupation is a mode of acquiring ownership, while
possession merely raises the presumption of
ownership when it is exercised in the concept of
owner;
2. occupation refers only to corporeal personal
property, while possession may be exercised over
any kind of property, whether real or personal,
corporeal or incorporeal;
3. occupation requires that the object thereof be
without an owner, while possession may refer to
property owned by somebody;
4. occupation requires that there be an intent to
acquire ownership, while possession may be had in
the concept of a mere holder;
5. occupation may not take place without some form
of possession, while possession may exist without
occupation;
6. occupation is of short duration, while possession is
generally of longer duration;
7. occupation by itself cannot lead to another mode of
acquisition, while possession may lead to another
mode which is prescription

WAYS BY WHICH OCCUPATION MAY BE EFFECTED
1. by hunting and fishing;
2. by finding of movables which never had any owner;
3. by finding of movables which have been abandoned
by the owner;
4. by finding of hidden treasure

OCCUPATION BY LAND
land is not included among things that can be the
object of occupation;
the reason is that when land is without an owner, it
pertains to the State;
if it is not owned by a private person, it belongs to
the public domain
with respect to an abandoned lot, it may be
considered as without an owner and therefore
pertains to the State as part of its patrimonial
property, not by virtue of occupation but on the
legal principle that land without owner belongs to
the State

REGULATION OF HUNTING AND FISHING
Special Law regulates hunting to protect animal life
Act No. 2590 a amended by Act. No. 3770, Act.
No. 4003 and C.A. No. 491;
Special Law governing fishing is P.D. No. 704
otherwise known as the Fisheries Decree of 1975;
Hunting and fishing may be regulated by a
municipal corporation or local government unit
under a provision of law or authority granted by
Congress, being in this case a delegation of the
States authority to the corporation.

OCCUPATION BY A SWARM OF BEES
the owner of a swarm of bees that went to
another' land shall lose ownership if he has not
pursued the same within two consecutive days after
it left his property, or after pursuing the same, he
ceases to do so within the same period;
in such a case, the possessor or owner of the land
may occupy or retain the bees

OCCUPATION OF DOMESTICATED ANIMALS
a domesticated animal which has not strayed or been
abandoned cannot be acquired by occupation by a
person to whose custody it was entrusted;
neither does the provision apply to a case where a
person has found a domestic animal and kept it for a
number of years not knowing its owner;
the period of two days and twenty days are not
periods of limitation, but conditions precedent to
recovery

OCCUPATION OF PIGEONS AND FISH [Art 717]
the article does not refer to wild pigeons and fish in a
state of liberty or that live naturally independent of
man;
their occupation is regulated by special laws on
hunting and fishing;
what is contemplated here are pigeons and fish
considered as domesticated animals subject to the
control of man in private breeding places

RULES AS TO LOST MOVABLES
1. The rights and obligations of the finder of lost
personal property are based on the principle of quasi
contract;
2. The duty imposed on the finder by art. 719 is based
on the fact that one who lost his property does not
necessarily abandon it;
3. If there is no abandonment, the lost thing has not
become res nullius.


DONATION

CONCEPT OF DONATION
Donation is an act of liberality whereby a person
disposes gratuitously of a thing or right in favor of
another, who accepts it (Article 725).

According to Professor Balane, the definition of a
donation in Article 725 is wrong. A donation is not an
act. It is a contract.

Features of donation
a. Reduction of the donors patrimony.
b. Enhancement or increase of the donees patrimony.
c. Animus donandi -- intent to do an act of liberality.

CLASSIFICATION OF DONATIONS

A. Inter vivos the effectivity of the donation does not
depend upon the donors death. The ownership of the
thing donated is given to the donee during the lifetime
and the lifetime of the donor.

i. Pure or simple (Article 725) Gratuitous

ii. Remuneratory/ compensatory (Article 726)
The donation is made on account of the
donees merits.
Rules: [1] past meritorious services must be
indicated and written in the deed of
donation. [2] the donation does not
constitute recoverable debt.

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For example, a parcel of land is given to L
since L is the most outstanding student in
law or out of gratitude for saving another
persons life.

iii. Conditional or modal (Articles 726, 733)
A conditional or modal donation imposes
upon the donee a burden which is less
than the value of the thing donated.
For example, X donates land worth P20,
000,000. However, X must support the
donors mother P2, 000,000. The value
of the donation is P18, 000,000.
The more accurate term is not conditional
but modal.
Modal donations are not pure acts of
liberality since a mode is imposed.
Article 733 is inaccurate. Article 733
mentions remuneratory donations. This
should be replaced by the word modal.

Requisites of the conditions:
a. The conditions must be imposed by
the donor himself upon the donee.
b. The conditions must appear in the
deed of donation.

Note: one must specify the burden
imposed in the donation inorder to
determine if the value of the burden is
less than the value of the property
donated.

The burden must be futuristic and for the
benefit of the donor.

iv. Onerous (Article 733)
This is a donation in name only.
An onerous donation is a contradiction in
terms.

B. Mortis causa - the effectivity of the donation
depends upon the donors death
The provisions on donation mortis causa are
dead letter because donations mortis causa
are governed by the provisions of
testamentary succession which is another
mode of acquiring ownership.

A donates to B a parcel of land on the
condition that B passes the Bar of 2001. On
the eve of the bar exam, A dies. B passes the
bar months after the death of A. This is a
donation inter vivos since the cause for the
donation is passing the bar. The test to
determine whether or not it is inter vivos or
mortis causa is the causal connection.

NATURE AND EFFECT OF DONATION

1. although the article defines donation as an act, it is
really a contract, with all the essential requisites of a
contract;
it falls under contracts of pure beneficence, the
consideration being the mere liberality of the
benefactor;
however the Code considers donation not among
the contracts that transfer ownership but as a
particular mode of acquiring and transmitting
ownership;

2. the effect of donation is to reduce the patrimony or
asset of the donor and to increase that of the donee;

3. hence, the giving of a mortgage or any other security
does not constitute a donation

REQUISITES OF DONATION
1. Donor must have the capacity to make the donation
of a thing or right;
2. He must have the donative intent or intent to make
the donation out of liberality to benefit the donee;
3. There must be delivery, whether actual or
constructive, of the thing or right donated;
4. The donee must accept or consent to the donation

FORMS OF DONATION

In donations form determines the validity of the donation.
Donations are one of the few transactions left in which form
determines validity. Most transactions are consensual, the
intent determining validity.


I. DONATIONS OF MOVABLES [Art 748]
If the donation is worth P5, 000 or less, the
donation can be made orally. However, the oral
donation must be accompanied by the
simultaneous delivery of the movable or of the
document representing the right donated. Without
delivery, the donation is no good.
If the value of the donation exceeds P5, 000, the
donation and the acceptance must be in writing.
The writing may be in a public or in a private
instrument.

II. DONATION OF IMMOVABLES [Art 749]
The donation must be in a public instrument.
The acceptance must either be in the same public
instrument or in a different public instrument.
Acceptance shall not take effect unless it is done
during the lifetime of the donor.
If the acceptance is made in a separate public
instrument, the donor shall be notified thereof in an
authentic form, and this step shall be noted in both
instruments.

Distinction between inter vivos and mortis causa
A donation mortis causa is always revocable. Thus, if
the donation is designated as irrevocable or is
revocable only for certain grounds or causes, then the
donation is inter vivos.
In a donation inter vivos, the property passes from
the donor to the donee (ownership). If the donor
reserves the right of ownership, then the donation is
mortis causa.
A stipulation giving the donor the power to alienate
the property if the donor needs money donation
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inter vivos. In this case, the right to alienate is
limited.
NOTE: The reservation must pertain to a
reservation of the ownership and NOT the fruits.
If the donor reserves the power to alienate, then
the donor reserves the right of ownership. It is a
donation mortis causa. If the donor reserves the
right to alienate only for certain grounds and
causes, then it means that the donor has practically
lost the right to alienate it. Which means, the donor
has practically lost his right of ownership. This is a
donation inter vivos.
A stipulation stating that the donee cannot alienate
without the donors consent donation mortis
causa. In this case, the donor effectively has the
power to alienate. The donee will always needs the
consent of the donor.
LIMITATIONS ON DONATION

I. Who may donate?
A donor must have capacity to act (i.e. age of
majority, no civil interdiction or other incapacity,
etc.) Article 735.

The donor must have capacity at the time the
donation is made.
The donation is perfected from the moment the
donor knows of the acceptance by the donee
(Article 734) cognition theory

Under the cognition theory, the contract is
perfected upon the donors learning of the
donees acceptance. It is not perfected when the
donee simply manifests his acceptance the
manifestation theory. Knowledge by the donor
is crucial.

In order for the donation to be perfected, the
donor must have knowledge of the donees
acceptance. Thus, the donor must be alive and
must have capacity at the time he learns of the
donees acceptance.

II. Who may be a donee?
All those who are not specifically disqualified by
law may accept donations (Article 738).

requirement for donee:
a. a donee need not be sui juris, with
complete legal capacity to bind himself by
contract;
b. as long as he is not specially
disqualified by law, he may accept
donations

JOINT DONEES- Article 753: when a donation is
made to several persons jointly, it is understood to be
in equal shares, and there shall be no right of
accretion among them, unless the donor has
otherwise provided.

The preceding paragraph shall not be applicable to
donations made to the husband and wife jointly,
between whom there shall be a right of accretion, if the
contrary has not been provided by the donor.

Note: all the joint donees must accept the donation.
One of the donees cannot accept in behalf of the other
without any authorization from them.

CAPACITY OF THE DONEE
Specially disqualified: not those minor or of
unsound mind but those enumerated under Art.
739.

Donees: either person or juridical being (e.g.
partnership)

Conjugal partnership is not a juridical being.
Donation should be made either to the husband or
wife or both by a third person. (capital- husbands
exclusive property; paraphernal- wifes)

Religious organization/ alien organization:
Must have at least 60% capital stock owned by
Filipino.

Attorney:
Incapacitated to buy the property of litigant
because deceit may occur.
But he is not disqualified as a donee

DONATIONS VOID ON MORAL GROUNDS
null and void
it is the law that declares these donations as null and
void.
the article is based on considerations of morality and
public policy;
1. Donation between persons guilty of
adultery and concubinage shall be void.
Need not proved in criminal action and can
be proved by preponderance of evidence.

If the donation was done after the
commission of act, the donation is valid,
except when the donation was done in
consideration of said act.

But the offended wife cannot file legal
separation because husbands adultery is
not a legal ground thereof.

Sweetheart, without sexual intercourse-
there can be donation.

If Joshua donated to Marian, the latter
being married to dingdong, the donation is
voidable because the law prohibits the
wife to accept any donation from a
stranger without the husbands consent.
The reason is to avoid alienation of
affection.

Husbands donation to a paramour to end
the immoral arrangement is valid.
However, if the woman knows the man to
be married and demands donation from
him, the donation is voidable.

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Life insurance benefit cannot go to a
paramour if they are guilty of adultery
and concubinage, even if the premiums
are being paid from conjugal property or
exclusive property of the husband
because these benefits shall go to the
wife.


Liquez v. CA: a donation made of illicit
cause (e.g. to cohabit) is void. But the
donor and his heirs cannot get back the
property because a party in illicit
transaction cannot get what has been
given.

2. Donation made between persons guilty
of criminal offense, in consideration
thereof.
There must be criminal conviction.
Donation done before or after the
commission of the crime in
consideration thereof is void.
A donation made to prevent commission
of crime is valid.

3. Donation made to public official, his
wife, descendants and ascendants by
reason of his office.
Purpose: to prevent bribery.
But the public officer may become
donor.

ART. 740: INCAPACITY TO SUCCEED A WILL-
unworthiness of the donee
the article expressly makes the provisions on
incapacity to succeed by will applicable to donations
inter vivos;
they are also applicable to donations mortis causa
which are governed by the law on succession;
since donations and wills are both gratuitous, the
same reason for the incapacity exists for both cases
ART. 1032 C.C (incapacitated to inherit)-
example:
1. Abortive infant- absolute incapacity
2. The priest who heard the confession of the
testator during the last will- relative
incapacity
If before donation the donation is valid. There
being no undue influence.
If there is condonation/ forgiveness of offense, the
accused may became a donee.

ART. 741: DONATIONS TO MINORS AND OTHERS
WITHOUT CAPACITY TO CONTRACT
if minor is incapacitated to accept:
if the reason for requiring acceptance through the
parents or legal representative is the lack of
capacity of the donee to give consent, it is clear
that the donee may not validly accept a donation
although it imposes no burden;
in any case, when a formal or written
acceptance is required by the donor, such
acceptance must be made by the parents or
legal representative
11 years old may be a donee, but acceptance must
be done by his parent or legal representative.
Minors may accept by themselves:
1. Yes! If the donation is simple.
No burden, for the benefit of the
minor.
Except: when written acceptance of
the donation is required, the parents
or legal representative must
intervene.
2. No! if the donation is onerous.
Burden is imposed.
The parent or legal representative
must intervene.
The intervention must be with
judicial permission so that the
acceptance may be considered valid.

ART. 742: DONATIONS TO CONCEIVED AND UNBORN
CHILDREN
The article applies both to simple and onerous
donations, but if the onerous is not favorable to the
child, it is as if there was no donation.
who make acceptance for donation to unborn
children:
Those persons who would legally represent them if
they are already born.
Requisites:
1. Child should be born latter (intra uterine life)
2. Intra uterine life of less than 7 months- should
be alive for at least 24 hours.

ART. 743: DONATIONS TO INCAPACITATED PERSONS
What is incapacity:
The incapacity refers to persons specially
disqualified by law to become donees, such as
those referred to in arts. 739 and 740;

Those who are incapacitated by law:
1. Donation between persons guilty of adultery
and concubinage shall be void.
2. Donation made between persons guilty of
criminal offense, in consideration thereof.
3. Donation made to public official, his wife,
descendants and ascendants by reason of his
office.

Art. 740 in relation to Art. 1027 on
Succession: those incapacitated to succeed.
Disqualification by incapacity (1027)
i. Priest or minister
Limited to the context of religion
JV: it doesnt include Mike Velarde
and El Shaddai
The illness referred to must be the
one in which the testator died off
(except: when the ill person met an
accident)
ii. Relative up to 4
th
civil degree OR sect
iii. Guardians
Refers to both guardians of persons
or property
Applied until the guardianship endures
iv. Attesting or testamentary witness and
their spouse, parents or children
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Except when there are 3 other
witnesses
v. Physician, surgeon, nurse, health officer
or druggist
Includes illegal practitioners
Must be the one who took care of
the decedent
vi. Individuals, associations and
corporations NOT permitted by law
This is the only one that applies to
BOTH types of succession.

NOTE: This is based on public policy. In
these cases, there is a conclusive
presumption of undue influence

donations to such persons are void even if
simulated under the guise of another contract or
through an intermediary

ART. 744: DONATIONS OF THE SAME THING TO
DIFFERENT DONEES

The article expressly makes applicable by analogy
the rules on sales of the same thing to two or
more different vendees.
Art. 1544 on SALE
Double sale of movable: the person who have
taken possession in good faith.
Immovable:
1. First to register in the registry of property in
good faith
2. First in possession
3. Person who can present the oldest title.

This article does not apply if there is a sale and
there is a donation.

III. Void Donations the following are void donations:
a. Those made between persons who were
guilty of adultery or concubinage at the
time of the donation (Article 739 (1))
Conviction is not necessary.
The donation shall not be void if the
donee did not know of the donors
existing marriage.

b. Those made between persons found guilty
of the same criminal offense, in
consideration thereof (Article 739 (2))
Aggravating circumstance of price,
promise or reward

c. Those made to a public officer or his wife,
descendants and ascendants, by reason of
his office (Article 739 (3))

d. Donations made by guardians and trustees
of property entrusted to them (Article 736)
General rule: guardians trustees cannot
donate the properties of their wrd.
Exceptions:
1. Repudiation and after the lapse of
the prescriptive period.
2. Onerous donation where the ward
or his property was benefited.
However, the must be court
approval.

In Araneta vs. Perez, the owner of the land had a
trustee. The land was being developed into a
subdivision. The trustee donated with the courts
consent to the LGU a portion of the land to be used
as a street. The donation to the LGU was being
challenged on the basis of Article 736. The SC said
that Article 736 contemplates donations which are
pure. In this case, the donation to the LGU was not
a pure donation. The donation was necessary to
develop the subdivision.

IV. The donation should not be inofficious.

V. The donation should not prejudice creditors.

VI. The donation should not impair support for the
donor and his family.

VII. Donations cannot comprehend future property
(Article 751)

ACCEPTANCE OF DONATION

ART. 744: DONATIONS OF THE SAME THING TO
DIFFERENT DONEES
The article expressly makes applicable by analogy the
rules on sales of the same thing to two or more
different vendees.

Art. 1544 on SALE
Double sale of movable: the person who have
taken possession in good faith.

Immovable:
1. First to register in the registry of property in
good faith
2. First in possession
3. Person who can present the oldest title.

This article does not apply if there is a sale and there
is a donation.

ART. 745: BY WHOM ACCEPTANCE IS MADE
Who accepts:
1. Donee/ personally
2. Authorized person with general and sufficient
power.
-With GPA or SPA- must be in public
instrument.

General rule: A valid donation once accepted
becomes irrevocable

Except:
1. On such grounds provided by law such as
inofficiousness.
2. Failure of the donee to comply with charges
imposed in the donations.
3. by reason of ingratitude

Agent- cannot accept in behalf of the principal.

Unenforceable contract if accepted.
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Parish priest- may accept in behalf of the
Church.

Mayor may accept in behalf of the
municipality.

ART. 746: WHEN ACCEPTANCE IS MADE - Applicable
to donation inter vivos and to onerous donation. In
onerous, without acceptance/ meeting of minds, there is
no contract.
1. during lifetime of donor and donee donation
inter vivos:
even if donation is made during their lifetime, but
the donor dies before the acceptance is
communicated to him, the donation is not
perfected;

2. after death of donor donation mortis causa:
if the acceptance was made before the donors
death, the donation mortis causa, although
validly executed, cannot be given force and
effect, such acceptance is void
Acceptance must be after donors death.

ART. 747: DUTY OF PERSON WHO ACCEPTS IN
REPRESENTATION OF THE DONEE

Requisites:
1. acceptance is made through the parents, legal
representative, or authorized agent of the donee;
2. the property donated is immovable;
3. the acceptance is not made in the same deed of
donation but in as separate public instrument
4. the requirement of notification of the donor and
notation in both instruments that such notification
has been made is necessary for the validity and
perfection of the donation

ART. 749: FORMALITIES FOR DONATION OF
IMMOVABLES
the article does not apply to onerous donations
which are governed by the rules on obligations and
contracts;
The provision applies where the donation imposes
upon the donee a burden which is less than the
value of the thing given because it requires that
the public document must specify the value of the
charges that the donee must satisfy.
Applicable to:
a. compensatory donation (remuneratory of
the 1
st
kind)
b. modal donation

RULES:
authentic form
Acceptance of donation must be stated.

1. Donation and acceptance are in the same
instrument

REQUIREMENTS:
a. Must be in a public instrument or document;
b. The instrument must specify the property
donated and the charges, if any, which the
donee must satisfy.

2. donation and acceptance are in separate
instruments

REQUIREMENTS:
a. must be in a public instrument or document;
b. the instrument must specify the property
donated and the charges, if any, which the
donee must satisfy;
c. the acceptance by the donee must be in a
public document;
d. it must be done during the lifetime of the
donor;
e. the donor must be notified in authentic form of
the acceptance of the donation in a separate
instrument;

The fact that such notification has been made must be noted
in both instruments

RESCISSION OF DONATIONS

Note: the goal of restitution is to restore status qou, thus
the parties are obliged to return what they received.

Rescission is different from revocation.

Grounds for Rescission of Donations:
3. Impossible conditions impose by the donor upon the
donee.
4. In case the donor has no property left to support
himself.

REDUCTION AND REVOCATION OF DONATION

Grounds of Revocation:
a) Revocation may take effect if an inofficious donation
was made.
A donation is inofficious if it impairs the
legitime.

An inofficious donation will be reduced in so far
as it exceeds what the donor could have given
by will to the donee the free portion.
Whether a donation is inofficious or not can
only be determined at the time of the death of
the donor.

The heirs of the donor have 10 years from the
death of the donor to revoke or reduce the
donation (Imperial vs. CA).

If there is a subsequent appearance or birth of
a child and his legitime is impaired because of
a donation, the donation may be revoked or
reduced to the extent that his legitime is
prejudiced (Articles 760 and 761).

In the case of the subsequent appearance or
birth of a child, the action to revoke or reduce
the donation shall prescribe after 4 years from
the birth of the child, or from his legitimation,
recognition or adoption or from the judicial
decree of filiation, or from the time the
information was received regarding the
existence of the child believed dead. This
action cannot be renounced, and is transmitted
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upon the death of the donor, to his
legitimate and illegitimate children and
descendants (Article 763).

b) If the donations prejudice creditors of the
donor [Art 759].
If the donor does not have enough
properties reserved to pay off his creditors,
the creditors have 4 years from the
knowledge of the donation to rescind the
donation accion pauliana (Articles 1381
(3), 1387 and 1389)

c) Donation impaired the support of the donor
or his relatives.
d) If the donor does not reserve enough
property for his and his familys support, the
donation can be reduced.
e) The donation can be reduced as much as
may be necessary.
f) In extreme cases, the donation can be
revoked if the donor gave away so much,
and the donor and his family need
everything back.

d) Donation did not comply with the formalities
required.
For failure to comply with the conditions of
the donation, the donor or his heirs have 4
years from noncompliance to revoke the
donations.
The right of revocation may be exercised
against the donees heirs.
Revocation is the only available remedy in
this situation. Reduction is not applicable.

e) The donee committed an act of ingratitude to
the donor.
The following are acts of ingratitude
1) If the donee should commit some
offense against the person, the honor or
the property of the donor, or of his wife
or children under his parental authority.

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

3) If he unduly refuses him support when
the donee is legally or morally bound to
give support to the donor.

The refusal by the donee must be
unjustifiable.
The fact that these acts were committed will
not give rise to the revocation. The donor
must invoke these grounds.
The donor has 1 year from the time the donor
acquires knowledge of the donees act of
ingratitude to revoke (Article 769).

MODES OF EXTINGUISHING OWNERSHIP

A. VOLUNTARY MODES
1) Abandonment
Rights such as ownership may be waived.
Under Article 6, the waiver of ownership
need not follow any formalities
2) Alienation
o Onerous title (i.e. sale)
o Gratuitous title
i. Inter vivos
ii. Mortis causa

3) Voluntary destruction (i.e. burning of trash)

B. INVOLUNTARY MODES
1. Fortuitous loss or destruction (i.e. fire)
2. Accession continua (i.e. bad faith in commixtion
or confusion)
3. Rescissory actions
4. Judicial decree
Professor Balane does not think that
judicial decree should be enumerated as
an involuntary mode since the judicial
decree would be based on something else.

5. By operation of law (i.e. confiscate due to
police power)

BAR 2003- DONATION VS. SALE
a) May a person sells something that does not belong to
him? Explain. b) May a person donate something that does
not belong to him? Explain. 5%

Suggested answer:
(a) Yes, a person may sell something which does not belong
to him. For the sale to be valid, the law does not require the
seller to be the owner of the property at the time of the
sale. (Article 1434, NCC). If the seller cannot transfer
ownership over the thing sold at the time of delivery
because he was not the owner thereof, he shall be liable for
breach of contact.

(b) As a general rule, a person cannot donate something
which he cannot dispose of at the time of the donation
(Article 751, New Civil Code).

BAR 1998- DONATIONS; PERFECTION: On July 27,
1997, Pedro mailed in Manila a letter to his brother, Jose, a
resident of Iloilo City, offering to donate a vintage sports car
which the latter had long been wanting to buy from the
former. On August 5, 1997, Jose called Pedro by cellular
phone to thank him for his generosity and to inform him that
he was sending by mail his letter of acceptance. Pedro never
received that letter because it was never mailed. On August
14, 1997, Pedro received a telegram from Iloilo informing
him that Jose had been killed in a road accident the day
before (August 13, 1997)


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Suggested answer:
1. Is there a perfected donation? [2%]- None. There
is no perfected donation. Under Article 748 of the Civil
Code, the donation of a movable may be made orally or in
writing. If the value of the personal property donated
exceeds five thousand pesos, the donation and the
acceptance shall be made in writing. Assuming that the
value of the thing donated, a vintage sports car exceeds
P5, 000.00 then the donation and the acceptance must be
in writing. In this instance, the acceptance of Jose was not
in writing, therefore, the donation is void. Upon the other
hand, assuming that the sports car costs less than
P5,000.00, then the donation maybe oral, but still, the
simultaneous delivery of the car is needed and there being
none, the donation was never perfected.

2. Will your answer be the same if Jose did mail his
acceptance letter but it was received by Pedro in
Manila days after Jose's death? [3%] - Yes, the
answer is the same. If Jose's mail containing his
acceptance of the donation was received by Pedro after
the former's death, then the donation is still void because
under Article 734 of the Civil Code, the donation is
perfected the moment the donor knows of the acceptance
by the donee. The death of Jose before Pedro could
receive the acceptance indicates that the donation was
never perfected. Under Article 746 acceptance must be
made during the lifetime of both the donor and the donee.

BAR 1998- DONATIONS; FORMALITIES; MORTIS
CAUSA-Ernesto donated in a public instrument a parcel of
land to Demetrio, who accepted it in the same document.
It is there declared that the donation shall take effect
immediately, with the donee having the right to take
possession of the land and receive its fruits but not to
dispose of the land while Ernesto is alive as well as for ten
years following his death. Moreover, Ernesto also reserved
in the same deed his right to sell the property should he
decide to dispose of it at any time - a right which he did
not exercise at all. After his death, Ernesto's heirs
seasonably brought an action to recover the property,
alleging that the donation was void as it did not comply
with the formalities of a will. Will the suit prosper? [5%]

Suggested answer: Yes, the suit will prosper as the
donation did not comply with the formalities of a will. In
this instance, the fact that the donor did not intend to
transfer ownership or possession of the donated property
to the donee until the donor's death, would result in a
donation mortis causa and in this kind of disposition, the
formalities of a will should be complied with, otherwise,
the donation is void. In this Instance, donation mortis
causa embodied only in a public instrument without the
formalities of a will could not have transferred ownership
of disputed property to another.

Alternative answer: One of the essential distinctions
between a donation inter vivos and a donation mortis
causa is that while the former is irrevocable, the latter is
revocable. In the problem given, all the clauses or
conditions mentioned in the deed of donation, except one,
are consistent with the rule of irrevocability and would
have sustained the view that the donation is inter vivos
and therefore valid. The lone exception is the clause which
reserves the donor's right to sell the property at any time
before his death. Such a reservation has been held to
render the donation revocable and, therefore, becomes a
donation mortis causa (Puig vs. Penqflorida, 15 SCRA 276, at
p. 286). That the right was not exercised is immaterial; its
reservation was an implied recognition of the donor's power
to nullify the donation anytime he wished to do so.
Consequently, it should have been embodied in a last will
and testament. The suit for nullity will thus prosper.

BAR 1996- DONATIONS; CONDITION; CAPACITY TO
SUE - Sometime in 1955, Tomas donated a parcel of land to
his step-daughter Irene, subject to the condition that she
may not sell, transfer or cede the same for twenty years.
Shortly thereafter, he died. In 1965, because she needed
money for medical expenses, Irene sold the land to Conrado.
The following year, Irene died, leaving as her sole heir a son
by the name of Armando. When Armando learned that the
land which he expected to inherit had been sold by Irene to
Conrado, he filed an action against the latter for annulment
of the sale, on the ground that it violated the restriction
imposed by Tomas. Conrado filed a motion to dismiss, on
the ground that Armando did not have the legal capacity to
sue. If you were the Judge, how will you rule on this motion
to dismiss? Explain.

Suggested answer: As judge, I will grant the motion to
dismiss. Armando has no personality to bring the action for
annulment of the sale to Conrado. Only an aggrieved party
to the contract may bring the action for annulment thereof
(Art. 1397. NCC). While Armando is heir and successor-in-
interest of his mother (Art. 1311, NCC), he [standing in
place of his mother) has no personality to annul the
contract. Both are not aggrieved parties on account of their
own violation of the condition of, or restriction on, their
ownership imposed by the donation. Only the donor or his
heirs would have the personality to bring an action to revoke
a donation for violation of a condition thereof or a restriction
thereon. (Garrido u. CA, 236 SCRA 450). Consequently,
while the donor or his heirs were not parties to the sale,
they have the right to annul the contract of sale because
their rights are prejudiced by one of the contracting parties
thereof [DBP v. CA, 96 SCRA 342; Teves vs. PHHC. 23 SCRA
114]. Since Armando is neither the donor nor heir of the
donor, he has no personality to bring the action for
annulment.

Alternative answer: As judge, I will grant the motion to
dismiss. Non-compliance with a condition imposed by a
donor gives rise to an action to revoke the donation under
Art. 764, NCC. However, the right of action belongs to the
donor and is transmissible to his heirs, and may be exercised
against the donee's heirs. Since Armando is an heir of the
donee, not of the donor, he has no legal capacity to sue for
revocation of the donation. Although he is not seeking such
revocation but an annulment of the sale which his mother,
the donee, had executed in violation of the condition
imposed by the donor, an action for annulment of a contract
may be brought only by those who are principally or
subsidiarily obliged thereby (Art. 1397, NCC). As an
exception to the rule, it has been held that a person not so
obliged may nevertheless ask for annulment if he is
prejudiced in his rights regarding one of the contracting
parties (DBP us. CA. 96 SCRA 342 and other cases) and can
show the detriment which would result to him from the
contract in which he had no intervention, (Teves vs. PHHC,
23 SCRA 1141). Such detriment or prejudice cannot be
shown by Armando. As a forced heir, Armando's interest in
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the property was, at best, a mere expectancy. The sale of
the land by his mother did not impair any vested right.
The fact remains that the premature sale made by his
mother (premature because only half of the period of the
ban had elapsed) was not voidable at all, none of the
vices of consent under Art. 139 of the NCC being present.
Hence, the motion to dismiss should be granted.

DONATIONS; REQUISITES; IMMOVABLE
PROPERTY- Anastacia purchased a house and lot on
installments at a housing project in Quezon City.
Subsequently, she was employed in California and a year
later, she executed a deed of donation, duly authenticated
by the Philippine Consulate in Los Angeles, California,
donating the house and lot to her friend Amanda. The
latter brought the deed of donation to the owner of the
project and discovered that Anastacia left unpaid
installments and real estate taxes. Amanda paid these so
that the donation in her favor can be registered in the
project owner's office. Two months later, Anastacia died,
leaving her mother Rosa as her sole heir. Rosa filed an
action to annul the donation on the ground that Amanda
did not give her consent in the deed of donation or in a
separate public instrument. Amanda replied that the
donation was an onerous one because she had to pay
unpaid installments and taxes; hence her acceptance may
be implied. Who is correct? (2%)

Suggested answer: Rosa is correct because the
donation is void. The property donated was an immovable.
For such donation to be valid, Article 749 of the New Civil
Code requires both the donation and the acceptance to be
in a public instrument. There being no showing that
Amanda's acceptance was made in a public instrument,
the donation is void. The contention that the donation is
onerous and, therefore, need not comply with Article 749
for validity is without merit. The donation is not onerous
because it did not impose on Amanda the obligation to
pay the balance on the purchase price or the arrears in
real estate taxes. Amanda took it upon herself to pay
those amounts voluntarily. For a donation to be onerous,
the burden must be imposed by the donor on the donee.
In the problem, there is no such burden imposed by the
donor on the donee. The donation not being onerous, it
must comply with the formalities of Article 749.

Alternative answer: Neither Rosa nor Amanda is
correct. The donation is onerous only as to the portion of
the property corresponding to the value of the
installments and taxes paid by Amanda. The portion in
excess thereof is not onerous. The onerous portion is
governed by the rules on contracts which do not require
the acceptance by the donee to be in any form. The
onerous part, therefore, is valid. The portion which is not
onerous must comply with Article 749 of the New Civil
thereof to be in a public instrument in order to be valid.
The acceptance not being in a public instrument, the part
which is not onerous is void and Rosa may recover it from
Amanda.

BAR 1999- DONATIONS; VALIDITY; EFFECTIVITY;
FOR UNBORN CHILD - Elated that her sister who had
been married for five years was pregnant for the first
time, Alma donated P100, 000.00 to the unborn child.
Unfortunately, the baby died one hour after delivery. May
Alma recover the P100.000.00 that she had donated to
said baby before it was born considering not been fixed in
the Deed of Donation, the donee is not that the baby died?
Stated otherwise, is the donation valid and binding? Explain.
(5%)

Suggested answer: The donation is valid and binding,
being an act favorable to the unborn child, but only if the
baby had an intra-uterine life of not less than seven months
and provided there was due acceptance of the donation by
the proper person representing said child. If the child had
less than seven months of intra-uterine life, it is not deemed
born since it died less than 24 hours following its delivery, in
which ease the donation never became effective since the
donee never became a person, birth being determinative of
personality.

Alternative answer: Even if the baby had an intra-uterine
life of more than seven months and the donation was
properly accepted, it would be void for not having
conformed with the proper form. In order to be valid, the
donation and acceptance of personal property exceeding five
thousand pesos should be in writing. (Article 748, par. 3)

BAR 1993- DONATIONS; INTER VIVOS; ACCEPTANCE:
On January 21, 1986, A executed a deed of donation inter
vivos of a parcel of land to Dr. B who had earlier constructed
thereon a building in which researches on the dreaded
disease AIDS were being conducted. The deed,
acknowledged before a notary public, was handed over by A
to Dr. B who received it. A few days after, A flew to Davao
City. Unfortunately, the airplane he was riding crashed on
landing killing him. Two days after the unfortunate accident.
Dr. B, upon advice of a lawyer, executed a deed
acknowledged before a notary public accepting the donation.
Is the donation effective? Explain your answer.

Suggested answer: No, the donation is not effective. The
law requires that the separate acceptance of the donee of an
immovable must be done in a public document during the
lifetime of the donor (Art. 746 & 749, Civil Code) In this
case, B executed the deed of acceptance before a notary
public after the donor had already died.

BAR 1997- DONATIONS; EFFECT; ILLEGAL &
IMMORAL CONDITIONS: Are the effects of illegal and
immoral conditions on simple donations the same as those
effects that would follow when such conditions are imposed
on donations con causa onerosa?

Suggested answer: No, they don't have the same effect.
Illegal or impossible conditions in simple and remuneratory
donations shall be considered as not imposed. Hence the
donation is valid. The donation will be considered as simple
or pure. The condition or mode is merely an accessory
disposition, and its nullity does not affect the donation,
unless it clearly appears that the donor would not have
made the donation without the mode or condition.
Donations con causa onerosa is governed by law on
obligations and contracts, under which an impossible or Illicit
condition annuls the obligation dependent upon the
condition where the condition is positive and suspensive. If
the impossible or illicit condition is negative, it is simply
considered as not written, and the obligation is converted
into a pure and simple one. However, in order that an illegal
condition may annul a contract, the impossibility must exist
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at the time of the creation of the obligation; a supervening
impossibility does not affect the existence of the
obligation.

Additional answer: No. In simple or pure donation, only
the illegal or irrevocable, the latter is revocable. In the
problem given, all impossible condition is considered not
written but the donation remains valid and becomes free
from conditions. The condition or mode being a mere
accessory disposition. Its nullity does not affect the
donation unless it clearly appears that the donor would
not have made the donation without the mode or
condition. On the other hand, onerous donation is
governed by the rules on contracts. Under Article 1183,
Impossible or illegal conditions shall annul the obligation
which depends upon them. In these cases, both the
obligation and the condition are void.

BAR 2006- donations; unregistered; effects;
noncompliance; resolutory condition: Spouses
Alfredo and Racquel were active members of a religious
congregation. They donated a parcel of land in favor of
that congregation in a duly notarized Deed of Donation,
subject to the condition that the Minister shall construct
thereon a place of worship within 1 year from the
acceptance of the donation. In an affidavit he executed on
behalf of the congregation, the Minister accepted the
donation. The Deed of Donation was not registered with
the Registry of Deeds. However, instead of constructing a
place of worship, the Minister constructed a bungalow on
the property he used as his residence. Disappointed with
the Minister, the spouses revoked the donation and
demanded that he vacate the premises immediately. But
the Minister refused to leave, claiming that aside from
using the bungalow as his residence, he is also using it as
a place for worship on special occasions. Under the
circumstances, can Alfredo and Racquel evict the
Minister and recover possession of the property? If
you were the couple's counsel, what action you
take to protect the interest of your clients? (5%)

Suggested answer: Yes, Alfredo and Racquel can bring
an action for ejectment against the Minister for recovery
of possession of the property evict the Minister and
recover possession of the property. An action for
annulment of the donation, reconveyance and damages
should be filed to protect the interests of my client. The
donation is an onerous donation and therefore shall be
governed by the rules on contracts. Because there was no
fulfillment or compliance with the condition which is
resolutory in character, the donation may now be revoked
and all rights which the donee may have acquired under it
shall be deemed lost and extinguished (Central Philippine
University, G.R. No. 112127, July 17,1995).

Alternative answer: No, an action for ejectment will not
prosper. I would advice Alfredo and Racquel that the
Minister, by constructing a structure which also serves as
a place of worship, has pursued the objective of the
donation. His taking up residence in the bungalow may be
regarded as a casual breach and will not warrant
revocation of the donation. Similarily, therefore, an action
for revocation of the donation will be denied (C. J. Yulo &
Sons, Inc. v. Roman Catholic Bishop, G.R. No. 133705,
March 31, 2005; Heirs of Rozendo Sevilla v. De Leon, G.R.
No. 149570, March 12, 2004).
BAR 2003- Donations; with Resolutory Condition- In
1950, Dr. Alba donated a parcel of land to Central University
on condition that the latter must establish a medical college
on the land to be named after him. In the year 2000, the
heirs of Dr. Alba filed an action to annul the donation and for
the reconveyance of the property donated to them for the
failure, after 50 years, of the University to established on the
property a medical school named after their father. The
University opposed the action on the ground of prescription
and also because it had not used the property for some
purpose other than that stated in the donation. Should the
opposition of the University to the action of Dr. Albas heirs
be sustained? Explain.

Suggested answer: The donation may be revoked. The
non-established of the medical college on the donated
property was a resolutory condition imposed on the donation
by the donor. Although the Deed of Donation did not fix the
time for the established of the medical college, the failure of
the donee to establish the medical college after fifty (50)
years from the making of the donation should be considered
as occurrence of the resolutory condition, and the donation
may now be revoked. While the general rule is that in case
the period is not fixed in the agreement of the parties, the
period must be fixed first by the court before the obligation
may be demanded, the period of fifty (50) years was more
than enough time for the donee to comply with the
condition. Hence, in this case, there is no more need for the
court to fix the period because such procedure with the
condition. (Central Philippine University v. CA. 246 SCRA
511).

Another suggested answer: The donation may not as yet
revoked. The establishment of a medical college is not a
resolutory or suspensive condition but a charge,
obligation, or a mode. The noncompliance with the charge
or mode will give the donor the right to revoke the donation
within four (4) years from the time the charge was supposed
to have been complied with, or to enforce the charge by
specific performance within ten (10) years from the time the
cause of action accrued. Inasmuch as the time to
established the medical college has not been fixed in the
Deed of Donation, the donee is not yet default in his
obligation until the period is fixed by order of the court
under Article 1197 of the New Civil Code. Since the period
has not been fixed as yet, the donee is not yet default, and
therefore the donor has no cause of action to revoke the
donation. (Dissenting opinion of Davide, CJ, Central
Philippine University v. Court of Appeals, 246 SCRA 511
[1995])

BAR 1991- Donations; Conditions; Revocation:
Spouses Michael and Linda donated a 3-hectare residential
land to the City of Baguio on the condition that the city
government would build thereon a public park with a boxing
arena, the construction of which shall commence within six
(6) months from the date the parties ratify the donation.
The donee accepted the donation and the title to the
property was transferred in its name. Five years elapsed but
the public park with the boxing arena was never started.
Considering the failure of the donee to comply with the
condition of the donation, the donor-spouses sold the
property to Ferdinand who then sued to recover the land
from the city government. Will the suit prosper?

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Suggested answer: Ferdinand has no right to recover
the land. It is true that the donation was revocable
because of breach of the conditions. But until and unless
the donation was revoked, it remained valid. Hence,
Spouses Michael and Linda had no right to sell the land to
Ferdinand. One cannot give what he does not have. What
the donors should have done first was to have the
donation annulled or revoked. And after that was done,
they could validly have disposed of the land in favor of
Ferdinand.

Alternative answer:
A. Until the contract of donation has been resolved or
rescinded under Article 1191 of the Civil Code or revoked
under Art. 764 of the Civil Code, the donation stands
effective and valid. Accordingly, the sale made by the
donor to Ferdinand cannot be said to have conveyed title
to Ferdinand, who, thereby, has no cause of action for
recovery of the land acting for and in his behalf.

B. The donation is onerous, and being onerous, what
applies is the law on contracts, and not the law on
donation (De Luna us. Abrigo, 81 SCRA 150). Accordingly,
the prescriptive period for the filing of such an action
would be the ordinary prescriptive period for contacts
which may either be six or ten depending upon whether it
is verbal or written. The filing of the case five years later
is within the prescriptive period and, therefore, the action
can prosper,

Alternative Answer: The law on donation lays down a
special prescriptive period in the case of breach of
condition, which is four years from non-compliance
thereof (Article 764 Civil Code). Since the action has
prescribed, the suit will not prosper.






















































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