+

Ad Majorem Dei Gloriam

PROPERTY NOTES

PRELIMINARY PROVISIONS Right or interest belong to a person over a

Art 414 All things which are or may be the specific thing
object of appropriation are considered Without a definite passive subject against
either: whom such right may be personally
1. Immovable or real property; or enforced
2. Movable or personal property. Jus in re
The res of a real right may be
Whats a thing? o Personal property (as in pledge
any object that exists and is capable of and chattel mortgage)
satisfying some human needs o Real property (easement, real
includes both objects that are already mortgage)
possessed or owned and those that are o Either personal or real (as in
susceptible of appropriation ownership, possession, usufruct)
more comprehensive term (than property), If the res of a real right is real property, the
as there are things which are not right itself is real property; otherwise it is
susceptible of appropriation and they are personal property
not included in the concept of property
Classification of real rights based upon
Whats property? dominion
refers to any thing which is already the 1. Domino pleno powers to enjoy and to
object of appropriation or found in the dispose are united
possession of man a. Dominion, civil possession,
hereditary right
Requisites of property 2. Domino menos pleno powers to enjoy
1. Utility and dispose are separated
Capacity to satisfy some human wants a. Surface right, usufruct
2. Substantivity 3. Domino limitado powers to enjoy and to
Quality of having existence apart from any dispose, though united, are limited
other thing a. By a guaranty (mortgage, pledge)
3. Appropriability b. By a charge (easement)
Susceptibility of being possessed by man c. By a privilege (pre-emption,
Res communes or common things are not redemption)
capable of appropriation in their entirety,
although they may be appropriated under What is a personal right?
certain conditions in a limited way, and Right or power of a person
thereby become property in law To demand from another as a definite
o Electricity, oxygen, etc subject
Res nullius or a thing may have no owner The fulfillment of the latters obligation.
because it has not yet been appropriated, Jus in personam or jus ad rem
or because it has been lost or abandoned Personal right, or right of obligation, has
by the owner. it constitutes property as the following elements:
long as it is susceptible of being 1. Active subject (person in whom the
possessed for the use of man right resides)
o Wild animals, hidden treasure 2. Passive subject (person against whom
Things cannot be considered as property the right is available)
when they are not susceptible of 3. Object or prestation or the conduct (to
appropriation because of give, to do, or not to do)
o legal impossibility (you cant sell 4. Juridical or legal tie which binds the
your body while youre alive, at parties to the obligation
least not legally) or
o physical impossibility (you cant Real Right Personal Right
own the moon, at least not yet) Definite active Definite active
subject who has subject and a
Rights as property a right against all definite passive
property is sometimes used to denote the persons generally subject
thing with respect to which legal relations as an indefinite
between persons exist the res over passive subject
which rights (particularly ownership) may Object is Object always an
be exercised and sometimes to the generally a incorporeal thing
rights with respect to the thing corporeal thing Created by title
either real or property Created by
mode and title Personal right
What is a real right? Extinguished by survives the
the loss or subject matter

1
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

destruction of the owner of the immovable in such a

thing which it is Directed against manner that it reveals the intention to
exercised a particular attach them permanently to the
Directed against person (actio in tenements;
the whole world personam) 5. Machinery, receptacles, instruments or
(actio in rem implements intended by the owner of
against 3rd the tenement for an industry or works
persons) which may be carried on ina building
or on a piece of land, and which tend
directly to meet the needs of said
Whats the importance of the classification into industry or works;
movables or immovables? 6. Animal houses, pigeon-houses,
In private international law, general rule is beehives, fish ponds or breeding places
that immovables are governed by the law of similar nature, in cases their owner
of the country in which they are located, has placed htem or preserves them with
whereas movables are governed by the the intention to have them permanently
personal law of the owner which in cases attached to the land, and forming a
is the law of his nationality or his domicile permanent part of it; the animals in
In criminal law, usurpation of property can these places are included;
take place only with real property. On the 7. Fertilizer actually used on a piece of
other hand, robbery and theft can be land;
committed only against personal property 8. Mines, quarries, and slag dumps, while
In procedural law, actions concerning real the matter thereof forms part of the bed,
property are brought in the RTC where the and waters either running or stagnant;
property is located, whereas actions 9. Docks and structures which, though
involving personal property are brought in floating, are intended by their nature
the court where either the defendant or and object to remain at a fixed place on
plaintiff resides. a river, lake, or coast;
o Forcible entry and unlawful 10. Contracts for public works, and
detainer for REAL property servitudes and other real rights over
o Replevin or manual delivery for immovable property.
PERSONAL
In contracts, only real property can be the Classes of immovable or real property (NIDA)
subject matter of real mortgage and 1. By nature (cannot be carried from place to
antichresis, while only personal property place)
can be the subject matter of mutuum, 2. By incorporation (attached to an
voluntary deposit, pledge immovable in a fixed manner to be an
In order that the donation of an immovable integral part thereof)
may be valid, it must be made in a public 3. By destination (placed in an immovable for
instrument. For movables, may be oral or the utility it gives)
in writing (if more than P5000, need only to 4. By analogy (by express provision of law
be in a private instrument) because it is regarded as united to the
immovable property)
For prescription (4 and 8 years for
movables; 10 and 30 years for
Lands, buildings, roads and constructions of all
immovables)
kinds
Transactions involving real property must
Must adhere to the soil
be recorded in the Registry of property to
Buildings must be more or less of a
affect 3rd parties. Not required with
personal property, except for chattel permanent structure independent of and
mortgage cases. regardless of the ownership of the land on
Art 415 The following are immovable which it is erected since the law makes no
property: distinction (so possible to mortgage
1. Land, buildings, roads, and building even if in the land of another,
constructions of all kinds adhered to since its separate from the land
the soil; Roads, whether public or private, are
2. Trees, plants, and growing fruits, while immovable
they are attached to the land or form an Real property treated by the parties as
integral part of an immovable; personal property
3. Everything attached to an immovable in o A building is by itself an immovable
a fixed manner, in such a way that it property irrespective of whether or
cannot be separated therefrom without not said structure and the land on
breaking the material or deterioration of which it is adhere to belong to the
the object; same owner
4. Statues, reliefs, paintings or other o A valid real estate mortgate can be
objects for use or ornamentation, constituted only on the building
placed in buildings or on lands by the
2
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

erected on the land belonging to o Placed by the owner of the

another tenement or his agent
o The parties to a contract of chattel o Industry or works must be carried
mortgage may, by agreement, treat on in a building or on a piece of
as personal property that which by land
nature would be real property o Machinery, etc must tend directly
(estopped! So they can be subject to meet the needs of the said
to a writ of replevin between parties) industry or works
However, the chattel Machinery which is movable in its nature
mortgage is not binding on only becomes immobilized when placed in
third persons. plant by the owner of the property or plant,
but not when so placed by a tenant, a
Trees, plants and growing fruits usufructuary, or any person having only a
Immovable while they are: temporary right (Davao Saw Mill v Castillo)
o Attached to the land, or o Exception (becomes immovable):
o Form an integral part of an 1. Such person acted as the
immovable agent of the owner, or
Once cut or uprooted, they become 2. Lease agreement states that
movable the machines will pass over to the
Growing crops or fruits, or ungathered lessor after the expiration of the
products or fruits, may be treated as lease agreement (US Valdez
personal property for the purposes of case)
attachment, execution and the chattel Must be essential and be principal
mortgage law (Sibal v Valdez) elements of an industry or works to the
When growing crops are sold and before business, not merely incidental to business
they are even harvested, the transaction is (Mindanao Bus Company v City Assessor)
considered as sale of movables because it o Cash registers, typewriters for
is a given that they are to be gathered or hotels, restaurants, theaters are
harvested for delivery merely incidental, these
businesses can continue on
Everything attached to an immovable in a fixed without them
manner o Machineries of breweries used in
Attachment must be such that the manufacture of liquor, though
o It cannot be separated from the movable by nature, are
immovable immobilized because they are
o Without breaking the material, or essential to said industries
o Deterioration of the object For purposes of taxation, it doesnt matter
If temporarily separated, will still be who placed the machines the owner or
mere lessee, as long as it is essential and
regarded as immovable if there is an intent
principal elements of an industry. The term
to put them back (but there are different
real property may include things which
opinions to this)
should generally as personal property. It is
Intent to attach permanently is essential
a familiar phenomenon to see things
objects placed by humans with intention to classified as real property for purposes of
permanent annexation lose their identity taxation which on general principle might
as movables be considered personal property. (Meralco
v Central Board of Assessment Appeals
Statues, reliefs, paintings, or other objects for in this case, the storage tanks were placed
use or ornamentation by Meralco, who wasnt the owner of the
Immovable when: land, but it was still considered
o Placed on the immovable by the immovable)
owner of the latter, and Attachment or incorporation to immovable
o In such a manner that it reveals not essential, since they become
the intention to attach them immovable because of destination, what is
permanently to the tenements essential is their utility
Not necessarily by him personally, can be
by his agent Animal houses, pigeon houses, beehives, fish
If placed by a person not the owner like a ponds or breeding places of similar nature
lessee, the object will not attain the Considered immovable:
character of immovable unless such o In case their owner has placed
person acts as an agent of the owner them or preserves them
o With the intention to have them
Machinery, receptacles, instruments, or permanently attached to the land
implements for an industry or works o And forming a permanent part of
Immovable only when: it.

3
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

o The animals in these places are 1. Obligations and actions which have for
included. their object movables or demandable sums;
Must permanently form part of the land 2. Shares of stock of agricultural,
and so intended by the owner commercial and industrial entities, although
they may have real estate.
Fertilizers actually used on a piece of land
Immovable when Classes of movable or personal property
o Actually used on a piece of land 1. Property not included in Art 415
2. Considered personal property by
Fertilizers kept in a barn are not
special provision of law
immovable
3. Forces of nature brought under
control by science
Mines, quarries and slag dumps
4. In general, all movable things
Immovable when a. Whether the property
o While the matter thereof forms can be transported or
part of the bed carried from place to
o Meaning, the matter thereof place;
remains unsevered from the soil b. Whether such change of
Waters, either running or stagnant, are lacation can be made
classified as immovables without injuring the
immovable to which the
Docks and structures, though floating object may be attached,
Immovable if and
o Intended by their nature and c. Whether the object does
object not fall within any one of
o To remain at a fixed place on the cases in Art 415
o A river, lake or coasts 5. Obligations and actions (personal
rights, they having a definite
Contracts for public works and servitudes and passive subject)
other real rights over immovables 6. Shares of stock
Where the res of a real right is real 7. Other incorporeal personal
property
property, the right itself is real property. So
a. Intellectual property
ownership is real property if the thing
such as copyrights,
owned is immovable
patents, etc
o Loan is real property by analogy if
secured by a real estate Art 418 Movable property is either
mortgage consumable or non-consumable. To the first
Where it is personal property, the right class belong those movables which cannot
itself is personal property be used in a manner appropriate to their
o Exception: case of contracts for nature without their being consumed; to the
public works which are second class belong all the others.
considered real property
Importance of classification:
Consumable goods cannot be the subject
CHAPTER TWO: MOVABLE matter of a commodatum (unless for mere
PROPERTY exhibition)
In a mutuum, the subject matter is money
Art 416 The following things are deemed to or other consumable thing
be personal property:
1. Those movables susceptible of Consumable
appropriation which are not included in Depends on nature of thing itself
the preceding article; Cant be used in a manner appropriate to
2. Real property which by any special their nature without being consumed
provision of law is considered as
personalty; Fungible
3. Forces of nature which are brought Depends on the intention or purpose of the
under control by science; and parties
4. In general, all things which can be Can be substitute by another thing of the
transported from place to place without same kind, quantity and quality
impairment of the real property to
which they are fixed. Money, while characterized as a movable,
is generic and fungible. (BPI v Franco)
Art 417 The following are also considered
as personal property:

4
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

CHAPTER THREE: PROPERTY IN 1. Public streams, river channels, river beds,

RELATION TO WHOM IT BELONGS etc
2. Accretions to the shores of the sea
3. Submerged lands or lands reclaimed from
Art 419 Property is either of public
the sea by the government
dominion or of private ownership
Mere reclamation of certain foreshore
Property is either of land does not convert these
1. Public dominion or property owned by the inalienable natural resources of the
State (or its subdivisions) in its public or state into alienable or disposable
sovereign capacity and intended for public lands of the public domain.
use and not for the use of the State as a There must be a law or proclamation
juridical person officially classifying them such.
2. Private ownership or property owned by: 4. Lands that disappeared into the sea
a. The state in its private capacity; 5. Canals constructed on private lands of
known as patrimonial property private ownership but the owner loses his
b. Private persons, either proprietary right over said canal through
individually or collectively prescription by allowing the public to use it
for transportation
Property is presumed to be State property in 6. Foreshore lands when the sea moved
the absence of any showing to the contrary. toward an estate and the tide invade it, the
(Regalian Doctrine) invaded property becomes foreshore and
passes to the public realm
Whats dominion? - Foreshore land is the strip of land that
1. Not owned by the State but simply under lies between the high and low water
its jurisdiction and administration for the marks
collective enjoyment of all the people of 7. Lot on which stairways were built for the
the State use of the people as passageway to the
2. Purpose is to serve the citizens, not the highway
State as juridical person
3. Rises from the fact that the State is the Roads refer to those constructed by the
juridical representative of the social group national government
Canals constructed by private persons
Art 420 The following things are property of over private lands are of private ownership
public dominion: Roadstead is a place less sheltered or
1. Those intended for public use, enclosed than a harbor where ships may
such as roads, canals, rivers, ride at anchor
torrents, ports and bridges
constructed by the States, banks Properties of public dominion are outside of the
shores, roadsteads and others of commerce of man. Again, their purpose is to
similar character serve the citizens.
2. Those which belong to the State, They can not be the object of appropriation
without being for public use, and either by the State or private persons.
are intended for some public So
service or for the development of 1. Cannot be sold, leased or be the subject of
the national wealth contracts
2. Cannot be acquired by prescription, not
Three kinds of public dominion property even by municipalities as against the State
1. Intended for public use 3. Cannot be encumbered, attached, or be
Can be used by everybody subject to levy and sold at public auction.
2. Not for public use but intended for some 4. Cannot be burdened with easements
specific public service 5. Cannot be registered under the land
Only be used by duly authorized registration law and be the subject of a
people, such as government Torrens title
buildings, etc Inclusion of public dominion property
3. Intended for the development of national does not confer title on the registrant
wealth, even if not employed for public use
or service Public lands v Government lands
Minerals, coal, oil, forests Public lands
Lands of the public domain
Charging of fees to the public does not affect Does not include all lands of government
the public character of the road or its character ownership but only so much of said lands
as property for public use. as are thrown open to private
appropriation and settlement by
What are other property of similar character to homestead law
those intended for public use?

5
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Government lands bona fide cliam of ownership

Broader term since time immemorial or from
Includes not only public lands, but also June 12, 1945
1. other lands of the government already 2. classification of the land as
reserved or devoted to public use, alienable and disposable land of
2. or subject to private rights, the public domain (Sec of DENR
3. and patrimonial lands v Yap)
Unclassified land? Considered as forest
Alienation of public agricultural land land (Sec of DENR v Yap)
Unless pubic land is shown to have been
reclassified and alienated by the State to a Property of Political Subdivisions
private person, it remains part of the For provinces, cities and municipalities,
inalienable public domain the conversion must be authorized by law
All other lands are presumed to belong to Municipal corporation has discretionary
the State power to withdraw a street from public use
and sell it. (Cebu Oxygen v Becilles)
Art 421 All other property of the State,
which is not of the character stated in the Art 423 The property of provinces, cities,
preceding article, is patrimonial property. and municipalities is divided into property
for public use and patrimonial property.
Patrimonial property
Property of the State owned by it in its Art 424 Property for public use, in the
private or proprietary character provinces, cities, and municipalities,
Not for public use, service or consist of the provincial roads, city streets,
development of the national municipal streets, the squares, fountains,
wealth public waters, promenades, and public
works for public service paid for by said
May be acquired by private individuals or
provinces, cities or municipalities.
juridical persons through prescription; can
be the object of an ordinary contract
All other property possessed by any of
them is patrimonial and shall be governed
Art 422 Property of public dominion, when
by this Code, without prejudice to the
no longer intended for public use or for
provisions of special laws.
public service, shall form part of the
patrimonial property of the State.
Property of Political Subdivisions
Note that the articles speak of property for
Property of the National Government
public use, indicating that properties for
Not self-executing
public service are patrimonial. (ambulance
There must be a formal declaration by the of the local government)
executive (exercised by the President) or Political subdivisions cannot register as
possibly legislative department that the
their own any part of the public domain,
property is no longer needed for public use
unless it is first shown that a grant thereof
or for public service before the same can
has been made or possession has been
be classified as patrimonial property
enjoyed during the period necessary to
A positive act declaring land as alienable establish a presumption of ownership.
and disposable is required If the property is owned by the municipality
1. Presidential proclamation or
in its public and governmental capacity, the
executive order
property is public and Congress has
2. Administrative action
absolute control over it.
3. Investigation reports of Bureau of
If it is owned in its private or proprietary
Lands investigators
4. Legislative act or a statute (Sec capacity, then it is patrimonial and
of DENR v Yap) Congress has no control over it. (page 63,
de Leon)
Classification of public lands is the
exclusive prerogative of the Executive
Case doctrines:
Department courts have no authority
The use of subdivision roads by the
(Sec of DENR v Yap)
general public does not strip it of its private
Abandonment cannot be inferred from
character.
non-use. (Roponggi case)
Transfer of ownership from the subdivision
Two requisites for judicial confirmation of
owner-developer to the local government
imperfect or incomplete title, under CA 141
is not automatic but requires a positive act
1. open, continuous, exclusive and
from the owner-developer before the city
notorious possession and
or municipality can acquire dominion over
occupation of the subject land by
the subdivision roads. Until and unless the
himself or through his
roads are donated, ownership remains
predecessors-in-interest under a
6
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

with the owner-developer. (Woodridge Enjoyment of all the benefits and privileges
School, Inc v ARB Construction Co, Inc) of ownership

Art 425 Property of private ownership, Ownership may be exercised over things or
besides the patrimonial property of the rights
State, provinces, cities, and municipalities, 1. Thing usually refers to corporeal property
consists of all property belonging to private 2. Rights whether real or personal, res of
persons, either individually or collectively. rights may be corporeal or incorporeal

Private property Art 428 The owner has the right to enjoy
1. Belonging to private persons, either and dispose of a thing, without other
individually or collectively limitations than those established by law.
2. Belonging to the State and any of its The owner has also a right of action against
subdivisions which are patrimonial in the holder and possessor of a thing in order
nature to recover it.

There is nothing that will prohibit churches The seven jus-es

from alienating things classified into 1. Possidendi
sacred, religious, and holy. 2. Utendi
3. Fruendi
Art 426 Whenever by provision of law, or an 4. Accessionis
individual declaration, the expression 5. Abutendi
immovable things or property or 6. Disponendi
movable things or property is used, it 7. Vindicandi
shall be deemed to include, respectively,
the things enumerated in Chapter 1 and Right to possess or jus possidendi
Chapter 2. right to hold a thing or enjoy a right (Art
Whenever the word muebles or 523)
furniture, is used alone, it shall not be may be exercised in ones own name or in
deemed to include money, credits, that of another
commercial securities, stocks and bonds, 1. Right to use not necessarily included
jewelry, scientific or aristic collections, May be in the concept of an owner or
books, medals, arms, clothing, horses or a mere holder with the ownership
carriages and their accessories, grains, pertaining to another
liquids and merchandise, or other thing
Right to possess does not always
which do no have as their principal object
include the right to use
the furnishing or ornamenting of a building,
2. Judgment of ownership may not include
except where from the context of the law, or
possession
of the individual declaration, the contrary
clearly appears. Person may be declared owner but he
may not be entitled to possession
which may be in the hands of another
TITLE II OWNERSHIP such as a tenant
CHAPTER ONE: OWNERSHIP IN But! This doctrine may be invoked
GENERAL only where the actual possessor has
some rights which must be respected
Art 427 Ownership may be exercise over 3. Where claim to possession based on claim
things or rights of ownership
Where the ownership of a property
Ownership is the was decided in a judgment, the
Independent right of a person to the delivery of possession should be
exclusive enjoyment and control of a thing considered included in the decision
Including its disposition and where the defeated partys claim to
recovery subject only to the the possession is based on his claim
restrictions or limitations of ownership
established by law and the rights 4. Duty of vendor to deliver possession of
of others thing sold
Contract of sale, vendor bound not
Beneficial Ownership only to transfer ownership, but also
Ownership recognized by law and capable deliver
of being enforced in court Considered delivered only when
Right to enjoyment in one person, legal vendee has control and possession
title is in another
Right to use and enjoy or jus utendi
Naked Ownership

7
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

necessarily includes the right to transform his knowledge,

and the right to exclude any person from information and belief
the enjoyment and disposal thereof Applicant has burden of proving
he may use such force as may be his ownership or right of
reasonably necessary to repel or prevent possession over the property in
an actual or threatened unlawful physical question
invasion or usurpation (Art 429) Both a principal remedy (regain
he may enclose or fence his property (Art possession) and a provisional
430) remedy (allow the plaintiff to
limited because he cannot make use of retain the thing wrongfully
such property in a manner to injure the detained by another pendente
rights of a third person lite)
2. Recovery of real property:
Right to receive the fruits and accessories or Forcible entry and unlawful detainer ( accion
jus fruendi and accessionis interdictal)
ownership gives the right by accession to Forcible entry
everything which is produced thereby (see Requisites:
art 440) i. Instituted by person
deprived of possession
Right to consume or jus abutendi ii. Unlawful deprivation of
right of the owner to consume a thing by the possession of any
its use the use that extinguishes land or building, by
force, intimidation,
Right to dispose or alienate or jus disponendi threat, strategy or stealth
iii. Filed within 1 year from
either totally (sale or donation) or partially
date of actual entry (but
(pledge, mortgage, etc)
for cases of stealth and
includes right not to dispose strategy, from date of
duty of vendor to transfer ownership knowledge of actual
o vendor must be the owner or knowledge)
authorized to sell thing iv. At the MTC where
o sufficient that he be the owner at property is located
the time of the delivery of the
thing sold Unlawful detainer
only the absolute owner can pledge or Requisites:
mortgage ones property i. Instituted by landlord,
vendor, vendee or other
Right to recover possession and/or ownership person against who the
or jus vindicandi possession of any land
true owner must resort to judicial process or building is unlawfully
for the recovery of the property withheld
he cannot take the law into his own hands ii. Unlawful possession
after the expiration or
Actions available to recover possession and/or termination of the right to
ownership hold possession (by
virtue of contract, etc)
1. Recovery of personal property: Remedy of iii. Filed within 1 year from
Replevin or manual delivery of personal date of last demand to
property vacate
Requisites (Rule 60, Rules of Court): iv. at the MTC where
Applicant must show by his own affidavit or property is located
that of some other person who personally For unlawful detainer, it is essential that
knows the facts: the plaintiffs supposed acts of tolerance
i. That the applicant is the must have been present right from the
owner of the property start of the possession which is later
claimed, particularly sought to be recovered (Valdez, jr v CA)
describing it, OR is Only issue involved in both is mere
entitled to the physical or material possession
possession thereof (possession de facto), not juridical or civil
ii. That the property is possession (possession de jure)
wrongfully detained by Plaintiff need only to allege and prove prior
the adverse party, possession de facto and undue deprivation
alleging the cause of thereof
detention thereof Its a quieting process
according to the best of

8
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Summary in nature (to solve the problem The rule in forcible entry cases, but
quickly and to protect the rights of the not in those for unlawful detainer, is
possessor) that a party who can prove prior
Difference between the two is the time possession can recover such
when possession became unlawful possession even against the owner
forcible entry: time of entry; unlawful himself. He has the security that
detainer: possession at first was legal, entitles him to remain on the property
then became illegal until he is lawfully ejected by a person
If complaint fails to aver facts constitutive having a better right through an
of forcible entry or unlawful detainer as accion publiciana or accion
when it does not state how entry was reinvindicatoria
effected or how and when the Where the question of how has prior
dispossession started, the remedy should possession hinges on the question of
either be accion publiciana or an accion who the real owner of the disputed
reinvindicatoria (Valdez, jr v CA) portion is, the inferior court may
o Must be apparent in the face resolve the issue of ownership and
of the complaint (Sarmiento v make a declaration as to the owner.
CA) But, it is merely provisional, and does
Jurisdictional facts what does a plaintiff not bar nor prejudice an action
have to allege? between the same parties involving
o For unlawful detainer the title to the land. (Asis v Asis Vda
i. Plaintiffs right over property de Guevarra, 2008)
(describing the property)
ii. Prior lawful possession Plenary action to recover possession (accion
i. If by tolerance, acts of publiciana)
tolerance must have Requisites:
been present right from i. Must be within a period of ten
the start of the years otherwise the real right
possession of possession is lost
ii. If by lease, contractual ii. One who claims to have a
agreement must be better right must prove not
shown only his right but also the
iii. Became unlawful (by termination identity of the property
of lease contract or non-payment claimed
of rents) iii. Filed in the RTC where the
iv. Extrajudicial demand to vacate property is located
i. If by non-payment, Issue involved is possession de jure of
demand letter to PAY realty independently of title (as compared
RENTS and VACATE to interdictal, possession de facto)
premises (bar question) Judgment rendered here is conclusive only
v. Within one year from last demand on the question of possession, not that of
ownership
Can the MTC rule on the issue of Jurisdictional facts?
ownership in an ejectment case? Yes! But 1. Right of plaintiff over property
only provisionally. 2. Period to bring interdictal has
The primal rule is that the principal expired
issue must be that of possession, and 3. Dont know na.
that ownership is merely ancillary, in
which case the issue of ownership Action to recover possession based on
may be resolved but only for the ownership (accion reivindicatoria)
purpose of determining the issue of Requisites:
possession. i. Right of plaintiff over property
It must sufficiently appear from the ii. Filed at the RTC where the
allegations in the complaint that what property is located
the plaintiff really and primarily seeks
is the restoration of possession. Seeks recovery of possession based on
Inferior court cannot adjudicate on the ownership, with claim of title
nature of ownership where the Issue involved is ownership which
relationship of lessor and lessee has ordinarily includes possession, although a
been sufficiently established in the person may be declared owner but he may
ejectment case, unless it is sufficiently not be entitled to possession because the
established that there has been a possessor has some rights which must be
subsequent change in or termination respected
of the relationship between the Action for reconveyance prescribes in 10
parties. years from the point of the registration of

9
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

the deed or the date of issuance of the When can injunction be allowed?
certificate of title (check book!); 4 years in In actions for forcible entry, the
cases of fraud counted therefrom on date dispossessed plaintiff may file, within ten
of issuance of the certificate of title over days from filing of the complaint, a motion
the property for a writ of preliminary mandatory
o Action for reconveyance based injunction to restore him in possession.
on fraud and where plaintiff is in o The court MAY grant In order to
possession of the property prevent the defendant from
subject of the acts does not committing further acts of
prescribe. (Leyson v Bontuyan) dispossession during the
o NB: Should not have passed to a pendency of the case
third person. o Issue of ownership may not be
put in issue
All three actions are actions in personam. Ejectment cases where the appeal is
taken, the lessor is given the same remedy
Injunction as a remedy for recovery of granted above.
possession Where the actual possessor of the
Injunction is a judicial process whereby a property who is admittedly the owner,
person is required to do or refrain from seeks protection from repeated or further
doing a particular thing. intrusions into his property.
General rule: Court should not by means o Even if it turns out that he isnt the
of a preliminary injunction transfer property owner, he may still avail of the
in litigation from the possession of one equitable remedy of injunction to
party to another. protect his possession.
In order that a preliminary injunction may When there is a clear finding of right of
be granted at any time after the ownership and possession of a land in
commencement of the action and before favor of the party who claims the subject
judgment: property in possession of another is the
Requisites: undisputed owner as where the property is
i. there must exist a clear and covered by a Torrens title pointing to the
positive right over the party as the owner. (Of course, check the
property in question which issuance of the title if it was in bad faith)
should be judicially protected When urgency, expediency and necessity
through the writ; and require immediate possession as where
ii. the acts against which the material and irreparable injury will be done
injunction is to be directed which cannot be compensated by
are violative of such right damages.
What if there is someone actually
possessing the property sought to Writ of possession as a remedy
recover? Writ of possession is an order whereby a
o Person not ordinarily allowed to sheriff is commanded to place a person in
avail of remedy of preliminary possession of a real or personal property,
preventive or mandatory such as when a property is extrajudicially
injunction but must bring the foreclosed.
necessary action for the recovery Improper to eject another from possession,
of possession. unless sought in connection with a:
Injunctive relief will not be granted to take 1. Land registration proceeding
property out of the possession or control of 2. Foreclosure of mortgage,
one party and place it in that of another provided, that no third person has
whose title intervened (PNB v CA in this
o Has not been clearly established, case, a third person was
or occupying the lot subject to the
o Who did not have such writ. The SC held that the an ex-
possession or control at the parte petition for issuance of a
inception of the case possessory writ is not the judicial
Proper function is to maintain the status process referred to in Art 433);
quo 3. Execution sales
Injunction cannot be a substitute for other
suits for recovery of possession, hence, its Limitations on the right of ownership
denial will not bar the institution of the Limited by
more appropriate remedy 1. by the States power to tax, police
Why? Well, a writ of injunction is an power, and eminent domain
equitable relief; determination of title is a 2. those imposed by law such as
legal remedy thats why legal easement

10
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

3. those imposed by the owner threatened damage to actor or a

himself, such as voluntary third person (but the damage
easement must be proportionate and
4. those imposed by the grantor of reasonable)
the property on the grantee ii. imminent danger or threatening
5. those arising from conflicts of damage must be much greater
private rights which take place in than the damage arising to the
accession continua owner of the property
6. prohibition against the acquisition
of private lands by aliens Art 433 Actual possession under claim of
ownership raises a disputable presumption
Art 429 The owner or lawful possessor of a of ownership. The true owner must resort to
thing has the right to exclude any person judicial process for the recovery of the
from the enjoyment and disposal thereof. property.
For this purpose, he may use such force as
ay be reasonably necessary to repel or Applies to both immovable and movable
prevent an actual or threatened unlawful property
physical invasion or usurpation of his Requisites to raise the disputable presumption
property. of ownership:
i. Actual (physical or material)
Principle of self-help possession of the property
Requisites: ii. Possession must be under claim of
i. Person defending must be the owner ownership
or lawful possessor
ii. Use of reasonable force Judicial process contemplated
iii. Only be exercised at the time of an Means ejectment suit or reinvidicatory
actual or threatened dispossession action
(no delay) Ex-parte petition for issuance of a
iv. Actual or threatened physical invasion possessory writ is not a judicial process,
or usurpation which is unlawful as it is non-litigious (PNB v CA)
Read with Art 19 of the Civil Code. Art 434 In an action to recover, the property
must be identified, and the plaintiff must
Art 430 Every owner may enclose or fence rely on the strength of his title and not on
his land or tenements by means of walls, the weakness of the defendants claim.
ditches, live or dead hedges, or by any
other means without detriment to Requisites:
servitudes constituted thereon. i. Person who claims that he has a
better right to the property must
Right to enclose or fence satisfactorily prove both ownership
Limited by existing servitudes imposed on and identity
the land or tenement ii. Burden of proof lies on the party who
substantially asserts the affirmative of
Art 431 The owner of a thing cannot make an issue
use thereof in such manner as to injure the iii. Reliance on strength of evidence and
rights of a third person. not upon the weakness of the
opposing party
Art 432 The owner of a thing has no right to
prohibit the interference of another with the Party who desires to recover must fix the
same, if the interference is necessary to identity of the land claimed by describing
avert an imminent danger and the the location, area and boundaries thereof
threatened damage, compared to the o If a party fails to identify
damage arising to the owner from the from
sufficiently and satisfactorily the
the interference, is much greater. The owner
land which he claims as his own,
may demand from the person benefited
his action must necessarily fail
indemnity for the damage to him.
o While the identity of the property
must be established, it is not
State of necessity
necessary for the plaintiff to
General rule: a person cannot interfere with the
establish the precise location and
right of ownership of another
extent of the lands claimed or
Exception: State of necessity, but of course,
occupied by the defendant
civil indemnification can be asked for
General rule: where there is a conflict
Requisites: between the area and boundaries of a
i. interference is necessary to avert land, the latter prevails.
an imminent danger and the o An area delimited by boundaries
properly identifies a parcel of land
11
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Exception: where the boundaries Art 436 When any property is condemned or
relied upon do not identify the land seized by competent authority in the
beyond doubt interest of health, safety or security, the
o In such cases where there owner thereof shall not be entitled to
appears to be an overlapping of compensation, unless he can show that
boundaries, the actual size of the such condemnation or seizure is
property gains importance. unjustified.

Equiponderance of evidence? Rule for Condemnation or seizure of property in

defendant. exercise of police power
Relates to use and enjoyment not
Evidence to prove ownership ownership of property
1. A Torrens title No taking of property involved
2. Title from the Spanish government Persons affected not entitled to
3. Patent duly registered in the Registry of financial compensation
Property
4. Deed of sale Art 437 The owner of a parcel of land is the
5. Operating a business for nine years in owner of its surface and of everything
defendants own name, without protest of under it, and he can construct thereon any
plaintiff works or make any plantations and
6. Occupation of a building for a long time excavations which he may deem proper,
without payment of rent without detriment to servitudes and subject
7. Letter in which defendant recognized the to special laws and ordinances. He cannot
ownership of the property by the plaintiff complain of the reasonable requirements of
(estoppel) aerial navigation.
8. Open, continuous, exclusive, adverse and
notorious actual possession and Surface rights of a landowner
occupation of parcels of land Right of the owner of a parcel of land to
construct any works or make any plantations
Indicia of claim of ownership and excavations on his land is subject to:
1. Tax declarations and tax receipts only (SLERRt)
prima facie evidence of ownership or 1. Special laws
possession; but they are good indicia of 2. Local ordinances
possession in the concept of owner 3. Existing servitudes or easements
4. Reasonable requirements of aerial
Conclusiveness of certificates of title navigation
Indicates true and legal ownership of a 5. Rights of third persons
private land and should be accorded great
weight as against tax declarations Limitations imposed by special laws
o but is not conclusive if the land had Includes the regalian doctrine
already been previously registered Ownership of said land does not give him
the right to extract or utilize the said
Art 435 No person shall be deprived of the minerals without the permission of the
property except by competent authority and State to which said minerals belong
for public use and always upon payment of o For the loss sustained by such
just compensation.
owner, he is entitled to just
Should this requirement be not first
compensation under mining laws
complied with, the courts shall protect, and
or expropriation proceedings
in a proper case, restore the owner in his
possession.
Art 438 Hidden treasure belongs to the
owner of the land, building, or other
Power of eminent domain
property on which it is found.
Requisites:
Nevertheless, when the discovery
i. Taking must be done by competent
is made on the property of another, or of the
authority
state or any of its sub-divisions, and by
ii. Must be for public use
chance, one-half thereof shall be allowed to
iii. Owner paid just compensation
the finder. If the finder is a trespasser, eh
iv. Requirement of due process of law
shall not be entitled to any share of the
must be observed
treasure.
If the things found be of interest to
Should the requirements be not first complied
science or the arts, the State may acquire
with, restore the property to his possession.
them at their just price, which shall be
But can be lost by estoppel or divided in conformity with the rule stated.
acquiescence
Art 439 By treasure is understood, for legal
purposes, any hidden and unknown deposit
12
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

of money, jewelry, or other precious Extension of the right of ownership of

objects, the lawful ownership of which does a person to the products of a thing
not appear. which belongs to such a person
Includes natural, industrial, and civil
Requisites: fruits (Art 441)
i. Deposit of money, jewelry or other 2. Accession continua
precious objects Extension of the right of ownership to
ii. Hidden and unknown that which is incorporated or attached
iii. Lawful ownership of which does not to a thing which belongs to such
appear person
May take place:
With respect to real property
CHAPTER TWO: RIGHT OF
Accession industrial
ACCESSION (building, planting,
GENERAL PROVISIONS sowing); or
SECTION I RIGHT OF ACCESSION Accession natural
WITH RESPECT TO WHAT IS (alluvion, avulsion,
PRODUCED BY PROPERTY change of river course,
and formation of islands)
Art 440 The ownership of property gives the With respect to personal property
right by accession to everything which is Conjunction
produced thereby, or which is incorporated (attachment,
or attached thereto, either naturally or engraftment)
artificially. Commixtion or confusion
Specification
Accession defined
Accession is the right of the owner of a thing, Art 441 To the owner belongs:
real or personal, to become the owner of o The natural fruits;
everything which is: o The industrial fruits;
1. produced thereby, o The civil fruits.
2. incorporated
3. attached thereto, Art 441 refers to accession discreta
either naturally or artificially.
Right of owner to the fruits
Accession Accessory General rule: All fruits belong to the owner of a
thing.
fruits of, things joined to, Exception: A person, other than the owner of a
additions to, included with the property, owns the fruits thereof:
improvements principal for the 1. possession in good faith by another
upon a thing latters (possessor entitled to the fruits received
includes building, embellishment, before possession is legally interrupted)
planting and better use or 2. usufruct (usufructuary entitled to all the
sowing completion fruits of the property on usufruct)
alluvion, necessary to 3. lease of rural lands (lessee gets fruits,
avulsion, change principal thing lessor gets rents)
of course of 4. pledge (pledgee gets fruits, etc but with
rivers, formation example: key of a the obligation to compensate what he
of islands house, bow of a violin receives with those which are owing him)
not necessary to 5. antichresis (creditor acquires the fruits of
the principal his debtors immovable, but with the
thing obligation to apply them first to the interest
and then to the principal amount of the
credit)
Accession, not a mode of acquiring ownership
Merely a consequence of ownership Art 442 Natural fruits are the spontaneous
products of the soil, and the young and
Exercise of the right of ownership
other products of animals.
Since the law itself gives the right, Industrial fruits are those produced
accession may, IN A SENSE, be by lands of any kind through cultivation or
considered as a mode of acquiring labor.
property under the law Civil fruits are the rents of
buildings, the price of leases of lands and
Kinds of accession other property and the amount of perpetual
1. Accession discreta or life annuities or other similar income.

13
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Natural fruits But keep in mind that the owner only pays
Two kinds: for the expenses for production, gathering
1. Spontaneous products of the soil (not and preservation not improvement.
through human cultivation or labor), and
2. Young and other products of animals Art 444 Only such as are manifest or born
(chicks, eggs, wool, milk) are considered as natural or industrial
fruits.
The second kind is considered as natural With respect to animals, it is
fruits whatever care or management, sufficient that they are in the womb of the
scientific or otherwise, may have been mother, although unborn.
given by man since the law makes no
distinction. When natural fruits and industrial fruits deemed
Puppies, while cute, bred by a to exist
professional breeder are still 1. Plants which produce only one crop and
natural fruits then perish (rice, corn, sugar): from the
time the seedlings appear from the ground
Industrial fruits 2. Plants and trees which live for years and
Those products which are borne through give periodic fruits (mangoes, oranges,
the cultivation or labor of humans epols): deemed existing until they actually
Usually cultivated for a purpose appear on the plants or trees
3. Animals: beginning of the maximum
Civil fruits ordinary period of gestation (when there
1. Rents of buildings can be no doubt that they are already in
2. Prices of leases (rents) of lands and other the womb of the mum)
property (including movables) 4. Fowls: the fact of appearance of chicks
3. Amount of perpetual or life annuities or should retroact to the beginning of
other similar income incubation

Art 443 He who receives the fruits has the

obligation to pay the expenses made by a SECTION II RIGHT OF
third person in their production, gathering, ACCESSION WITH RESPECT TO
and preservation.
IMMOVABLE PROPERTY
Art 443 applies when:
Section 2 deals with one kind of accession
1. Owner of property recovers the
continua, that of immovables. It comprehends
property from a possessor and the
accession industrial (445-456) and accession
possessor has not yet received the
natural (457-465).
fruits although they may have already
Certain basic principles must be kept in mind:
been gathered or harvested; or
1. Accession follows the principal
2. The possessor has already received
Owner of the principal acquires the
the fruits but is ordered to return the
same to the owner ownership of the accession
2. Incorporation or union must be intimate
In both cases, the owner is obliged to Removal or separation cannot be
reimburse the previous possessor for the effected without substantial injury to
expenses incurred by the latter. either or both
3. Effect of good faith and bad faith
What if the possessor is in bad faith? Good faith exonerates a person from
The owner cannot excuse himself from his punitive liability but bad faith may give
obligation by alleging bad faith on the part rise to dire consequences
of the possessor because the law makes General rule: person who acts in bad
no distinction faith has no rights
Exception: person who is in good faith
When does good faith/bad faith come into or bad faith is entitled to
play? reimbursement for necessary
When the goods have yet to be gathered. expenses or preservation (452) as
Under 449, a BPS in bad faith has no right well as expenses for cultivation,
of reimbursement for expenses, nor to the gathering and preservation (443)
fruits. Only for the necessary expenses of 4. Effect of both parties in bad faith
preservation of land. Bad faith of one neutralizes bad faith
of the other
What if the expenses exceed the fruits? Neither party may demand as a
The owner must pay the expenses just the matter of right the removal of the
same because the law makes no improvements against the will of the
distinction other for such right is available only to

14
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

a party in good faith where the other is there is no

in bad faith substantial injury
5. Unjust enrichment to work done
Bad faith Good faith
General rule on accession industrial Acquire the materials Entitled to full
Art 445 and 446 give the general rule that the provided he pays full payment for value
accessory follows the principal. payment plus damages of materials plus
Exception: Art 120 of the Family Code damages, or
Remove materials
Definitions: even if there will
1. Building generic term for all architectural be substantial
work with roof built for the purpose of injury to work
being used as mans dwelling, or for done plus
offices, clubs, theaters, etc. damages
2. Repairs putting of something back into Good faith Bad faith
the condition in which it was originally in Acquire materials without Loses materials
(not an improvement) paying for the value without indemnity
thereof and entitled to and will be liable
Art 445 Whatever is built, planted or sown damages due to defects for damages due
on the land of another and the or inferior quality of to defects or
improvements or repairs made thereon, materials inferior quality of
belong to the owner of the land, subject to materials
the provisions of the following articles. Bad faith Bad faith
Same as when both are in
Owner of land must be known for this good faith.
article to apply

Art 446 All works, sowing, and planting are Art 448 The owner of the land on which
presumed made by the owner and at his anything has been built, sown or planted in
expense, unless the contrary is proved. good faith, shall have the right to
appropriate as his own the works, sowing
Disputable presumptions as to improvements: or planting, after payment of the indemnity
1. The works, sowing, and planting were provided for in articles 546 and 548, or to
made by the owner. and oblige the one who built or planted to pay
2. They were made at the owners expense. the price of the land, and the one who
sowed, the proper rent. However, the
He who alleges the contrary of these builder or planter cannot be obliged to buy
presumptions has the burden of proof. the land if its value is considerably more
than that that of the building or trees. In
Art 447 The owner of the land who makes such case, he shall pay reasonable rent, if
thereon, personally or through another, the owner of the land does not choose to
paintings, constructions or works with the appropriate the building or trees after
materials of another, shall pay their value; proper indemnity. The parties shall agree
and if he acted in bad faith, he shall also be upon the terms of the lease and in case of
obliged to the reparation of damages. The disagreement, the court shall fix the terms
owner of the materials shall have the right thereof.
to remove them only incase he can do so
without injury to the work constructed, or Art 449 He who builds, plants or sows in
without the plantings, constructions or bad faith on the land of another, loses what
works being destroyed. However, if the is built, planted or sown without right to
landowner acted in bad faith, the owner of indemnity.
the materials may remove them in any
event, with a right to be indemnified for Art 450 The owner of the land on which
damages. anything has been built, planted or sown in
bad faith may demand the demolition of the
Applies when the owner of the property uses work, or that the planting or sowing be
the materials of another. removed, in order to replace things in their
former condition at the expense of the
Landowner- Owner of person who built, planted or sowed; or he
Builder/Planter/Sower Materials may compel the builder or planter to pay the
Good faith Good faith price of the land, and the sower the proper
LO-BPS can acquire the Entitled to full rent.
materials provided there payment for value
is full payment of materials, or Art 451 In case of the two preceding
May remove articles, the landowner is entitled to
materials provided damages from the builder, planter or sower.

15
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

compensating the
Art 452 The builder, planter or sower in bad necessary and If LO does not
faith is entitled to reimbursement for the useful expense appropriate luxurious
necessary expenses of preservation of the with the fruits improvements, BPS can
land. received by the BP remove the same
in good faith provided there is no
Art 453 If there was bad faith, not only on (Nuguid case) injury to the principal
the part of the person who built, planted or thing (land or building)
sowed on the land of another, but also on
the part of the owner of such land, the Right of retention only
rights of one and the other shall be the applies when LO
same as though both had acted in bad faith. chooses to appropriate
It is understood that there is bad (but does not apply if
faith on the part of the landowner whenever property of public
the act was done with his knowledge and dominion)
without opposition on his part. Option 2: To oblige To purchase land at fair
the BP to buy the market value at time of
Art 454 When the landowner acted in bad land or the S to pay payment when value is
faith and the builder, planter or sower the proper rent not considerably more
proceeded in good faith, the provisions of unless the value of than that of the building
article 447 shall apply. the land is or trees
considerably more
Whats good faith? than that of the To pay rent until the
Consists in the: building or trees purchase has been
1. Honest belief that the land he is building, made (Technogas case)
planting, sowing on is his or that by some Legal implication of
title, he has a right to build, plant, sow on planter v sower: If BP cannot pay
it; and Owner cant purchase price of the
2. Ignorance of any defect or flaw in his title compel sower to land, LO can require BP
buy, only rent. to remove whatever has
Abrenica definition: State of mind at the time he been built, planted, or
built the improvements (Pleasantville case) sown.

Usually, it applies to building, planting, sowing If the value of the land is

in the concept of ownership. considerably more than
But the Supreme Court has expanded its that of the building or
coverage to trees, BP cannot be
1. Cases wherein a builder had constructed compelled to buy the
improvements with the consent of the land. In such case, BP
owner will pay reasonable rent
2. Builders in good faith who relied on the if LO does not choose
consent of another whom they have option 1.
mistakenly believed to be the owner of the
land If BPS cannot pay the
3. To children who built improvement on a rent, LO can eject BPS
land belonging to their parents with their from the land.
parents consent (Macasaet case)
Note: Rental period of
sower is only until he
Landowner Builder/planter/sower gathers what he sowed.
Good faith Good faith He doesnt have the
Option 1: Purchase Receive indemnity for remedy of removal.
whatever has been necessary, useful and (Sarmiento)
built, planted, or luxurious expenses Good faith Bad Faith
sown after paying (depends on landowner) Option 1: To Loses whatever has
indemnity which with right of retention acquire whatever been built, planted or
includes necessary, over the land without has been built, sown without indemnity
useful and obligation to pay rent planted or sown and liable to pay
luxurious expenses until full payment of without paying damages
(if he wishes to indemnity indemnity except
appropriate the necessary Entitled to
luxurious Remove useful expenses for reimbursement for
expenses) improvement provided it preservation of necessary expenses for
does not cause any land and luxurious preservation of land but
Prohibited from injury (part of right of expenses (should no right to retention (and
offsetting or retention) LO want to acquire also 443)

16
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

luxurious Those which seek to prevent the waste,

improvement) plus NOT Entitled to deterioration, or loss of the thing
damages reimbursement for useful
expenses and cannot
remove useful Useful expenses
improvements even if Expenses which add value to a thing or
removal will not cause Augment is income
injury (MWSS case)

Not entitled to luxurious When does good faith cease?

expenses except when From the moment defects in the title are
LO wants to acquire
made known to the possessor by
(value of which will be
extraneous evidence or by suit for
the one at the time LO
recovery of the property by the true owner
enters into possession)
What happens if good faith ceases? (Rosales
Entitled to remove
case)
luxurious improvements
LO can acquire improvements built PRIOR
if it will not cause injury
and LO does not want to to the notice to BPS (when good faith
acquire them. If it will ceased), and indemnify BPS of current
cause injury and LO market value at time of payment
doesnt want to acquire, LO entitled to rent from the time BPS good
he gets it for free (Dean faith ceased
Del)
Option 2: To oblige Obliged to pay for land When will these rules not apply?
BP to buy land or S or proper rent and pay 1. When other provisions of law govern
to pay proper rent damages (agency, co-ownership, lease, usufruct)
plus damages, 2. Improvement constructed on ones own
regardless of land subsequently sold (person constructs
valuation a house on his own land and later sold
Option 3: To Obliged to remove or land to another)
compel BPS to demolish work done at But, the provision on indemnity in 448
remove or his expense and pay may be applied by analogy where the
demolish work damages owner-builder later lost ownership of
done plus damages the land by virtue of a court judgment,
Bad Faith Good Faith considering that the primary intent of
Acquire whatever Ball is in the court of the 448 is to avoid a state of forced co-
has been built, BPS. ownership especially where the
planted or sown by parties in the main agree that 448 and
paying indemnity BPS can remove 546 are applicable and indemnity for
plus damages whatever has been built, the improvements may be paid
planted or sown although they differ as to basis of the
regardless of whether or indemnity - whut?! (Pecson v CA)
not it will cause injury 3. Builder is a belligerent occupant
and will be entitled to 4. Constructions not in the nature of buildings
damages 5. Property of public domain

If LO acquires whatever Art 455 If the materials, plants or seeds

has been built, planted belong to a third person who has not acted
or sown, BPS must be in bad faith, the owner of the land shall
indemnified the value answer subsidiarily for their value and only
thereof plus damages in the event that the one who made use of
them has no property with which to pay.
If LO does not acquire, This provision shall not apply if the
BPS cannot insist on owner makes use of the right granted by
purchasing land Article 450. If the owner of the materials,
plants or seeds has been paid by the
builder, planter or sower, the latter may
Bad Faith Bad Faith demand from the land-owner the value of
Both in good faith the materials and labor.

Landowner Builder/Planter/S Owner of

Necessary expenses ower the
Made for the preservation of the thing, or Materials
Good Faith Good Faith Good Faith

17
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Option 1: To To receive To receive planted or entitled to be both as if

acquire indemnity from indemnity sown indemnified for they are in
whatever LO with right of from BPS without necessary good faith.)
has been retention over who is paying expenses and
built, land until full primarily indemnity luxurious Whatever is
planted or payment liable for except for expenses (should the choice
sown materials; if necessary LO want to of the LO,
provided BPS is expenses acquire luxurious OM has
there is insolvent, to for improvements) right to
payment of proceed preservatio and has no right receive
indemnity against LO n of land of removal even indemnity
(which who is and if removal will not for value of
includes subsidiarily luxurious cause damage materials
value of liable with expenses from BPS
what has no right of (should LO only (LO
been built, retention want to has no
planter or acquire subsidiary
sown plus luxurious liability for
value of improveme value of
materials nts) plus materials
used) damages because
Option 2: To To buy land or to To receive OM is
oblige BP to pay proper rent indemnity considered
buy land or from BPS in good faith
S to pay only (LO is only insofar
rent unless not as BPS is
value of subsidiarily concerned)
land is liable) with
considerabl right of OM has no
y more than retention right to
that of until full remove
building or payment; or materials
trees even if
To remove there will be
materials if no injury or
there will be damage
no injury on Option 2: To To buy the land Get
building or oblige BP to or pay proper indemnificat
trees and buy the rent and liable to ion from the
will have land or S to pay damages to BPS
material lien pay proper LO
against rent plus
BPS for damages
payment of Option 3: To To demolish or Liable to
materials oblige BP to remove what has pay
Good Faith Good Faith Bad Faith demolish or been built, damages
Same Whatever is remove planted or sown due to
the choice what has and liable for defects or
of LO, the been built, damages inferior
OM: planted or quality of
1. loses the sown plus materials
materials in damages
favor of the Bad Faith Good Faith Good Faith
BPS and To acquire To receive TO receive
2. will have what has indemnity from indemnity of
no right to been built, LO plus damages materials
receive planted or principally
indemnity sown by from BPS
from BPS paying and in case
nor LO indemnity BPS is
Good Faith Bad Faith Bad Faith plus liable insolvent,
Option 1: To BPS loses what (Since both to pay subsidiarily
acquire has been built, BPS and damages from LO
whatever planted or sown OM are in Bad Faith Good Faith Bad Faith
has been plus liable for bad faith, Same Same No right to
built, damages but is treat them receive

18
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

indemnity 4. Accretion on the bank of a lake (like

for value of Laguna de Bay) have been held to belong
materials to the owners of the lands to which they
from BPS are added
nor LO
(who ends Elements of river and their ownership
up owning A river is a compound concept consisting of
buildings or three elements:
trees) 1. Running waters
If OM in bad faith, he doesnt get anything 2. The bed
(unless BPS in bad faith as well) 3. The banks

Art 456 In the cases regulated in the Since a river is a compound concept, it
preceding articles, good faith does not should have only one nature it should
necessarily exclude negligence, which either be totally public or completely
gives right to damages under article 2176. private. And since rivers, whether
navigable or not, are of public dominion
Art 457 To the owners of the lands adjoining (Art 420), it is implicit that all the three
the banks of rivers belong the accretion component elements be the same nature
which they gradually receive from the also.
effects of the current of the waters.
Reasons for alluvion
Article treats of alluvion, a form of accession 1. Compensate the riparian owner for
natural. the danger of loss that he suffers
because of the location of his land
Alluvion is 2. Compensate him for the
Accretion which the banks of rivers encumbrances and various kinds of
gradually receive from the effects of the easements to which his property is
current of the waters and subject
Which belong to the owners of lands 3. Promote the interests of agriculture for
adjoining the said banks the riparian owner it in the best
position to utilize the accretion
Riparian owners are owners of lands
Accretions affecting lands registered under the
adjoining the banks of rivers.
Torrens system
Littoral owners are the owners of lands
In case of diminution of area
bordering the shore of the sea or lake or Registration does not protect the riparian
other tidal waters
owner against diminution of the area of his
land through gradual changes in the
Distinguished from accretion
course of the adjoining stream
Alluvion is applied to the deposit of soil or
Accretions which the banks of rivers may
to the soil itself
gradually receive from the effect of the
Accretion is the act or process by which a current become the property of the owners
riparian land gradually and imperceptively of the banks
receives addition made by the water to In case of increase of area
which the land is contiguous Although alluvion is automatically owned
by the riparian owner, it does not
Requisites
automatically become registered land, just
i. Deposit or accumulation of soil or
because the lot which receives such
sediment must be gradual and
accretion is covered by a Torrens title
imperceptive
So, alluvial deposit acquired by a riparian
ii. Accretion results from the effects or
action of the current of waters of the owner of registered land by accretion may
river (exclusive work of nature) be subjected to acquisition through
iii. Land where accretion takes place must prescription by a third person, by failure of
be adjacent to the bank of a river such owner to register such accretion
within the prescribed period
Instances when alluvion DOES NOT take place
1. Accretion because of sudden and forceful Art 458 The owners of estates adjoining
action like that of flooding ponds or lagoons do not acquire the land
2. Accretion caused by human intervention left dry by the natural decrease of the
(would still be part of public domain Vda waters, or lost that inundated by them in
de Nazerno v CA) extraordinary floods.
3. Accretion caused by action of Manila Bay Refers only to ponds and lagoons
(since Manila Bay is not a river, its part of o No application when the estate
the sea) adjoins a creek, stream, river or
lake
19
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

o For purposes of alluvion, lakes the sudden change of the course of the
are of the same category of river
creeks, streams and rivers
Pond Requisites
o a body of stagnant water without i. Segregation and transfer must be
an outlet caused by the current of a river, creek
o larger than a puddle and smaller or torrent
than a lake ii. Segregation and transfer must be
Lagoon sudden or abrupt
iii. Portion of land transported must be
o small lake, ordinarily of fresh
known or identifiable
water,
o and not very deep, fed by floods
Even if the detached portion be placed on
o the hollow bed of which is
top of another land instead of being
bounded by elevations of land adjoined to it, Art 459 still applies as long
Lake as it can be identified as coming form the
o Body of water formed in estate from which it was detached
depressions of the earth If only soil is removed by water and spread
o Ordinarily fresh water over anothers land such that no known
o Coming from rivers, brooks or portion can be said to exist which can be
springs removed, there is no avulsion
o Connected with the sea by them Current
o Hence, Laguna de Bay is a lake o Continuous movement of a body
of water, often horizontal, in a
certain direction
Art 459 Whenever the current of a river, River
creek or torrent segregates from an estate o Natural surface stream of water of
on its bank a known portion of land and considerable volume
transfers it to another estate, the owner of
o Permanent or seasonal flow
the land to which the segregated portion
o Emptying into an ocean, lake or
belonged retains the ownership of it,
provided that he removes the same within other body of water
two years. Creek
o Small islet extending further into
Avulsion is land
Also known as force of river o Natural stream of water normally
Defined as the accretion which takes place smaller than and ofter tributary to
when the current of a river, creek or torrent a river
segregates from an estate on its bank a Torrent
known portion and transfers it to another o Violent stream of water
estate o A flooded river or one suddenly
In which case, the owner of the estate to raised by a heavy rain and
which the segregated portion belonged, descending a steep incline
retains the ownership thereof o Raging flood or rushing stream of
Also refers to the segregation or transfer water
itself of a known portion of land to another
by the force of the current What if a portion of land is transferred, but not
by a current of water, but by a landslide?
Alluvion Avulsion You can apply Art 459, by analogy.
Deposit of soil is Deposit is sudden
gradual or abrupt Remove it within two years
Deposit of soil The owner of the The former owner preservers his
belongs to the property from ownership of the segregated portion
owner of the which a part was provided he removes (not merely claims)
property where detached retains the same within the period of 2 years
the same was the ownership It would seem that his failure to do so
deposited thereof would have the effect of automatically
The soil cannot Detached portion transferring ownership over it to the owner
be identified can be identified of the other estate
Law doesnt make a distinction between
Where there had been accretions to the private land and land of the public domain
land adjacent to the bank of a river, the Why two years?
riparian owner does not lose the o Segregated portion is usually very
ownership of such accretions even if they small and it is thus useless to the
are separated by avulsion from the land by original owner

20
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

o Similar to uprooted trees (but o In proportion to the area lost (if

there, 6 months) only one owner lost a portion of
o If the owner of the separated his land, the entire old bed should
portion retains his ownership belong to him. If more than two,
without any qualification, he then in proportion to the area lost)
would have a right to enter the Abandoned? The words may be construed
other estate at any time, which to mean that where there is abandonment
wouldnt be convenient to the by the government over the old bed, the
other estate owner of the invaded land automatically
o After a long period, the detached acquires ownership of the same without
potion may become permanently any formal act on his part. (Remember that
attached to the new land so itll be rivers are property of public dominion)
hard to remove o The change in the course of the
river does not ipso facto result in
Art 460 Trees uprooted and carried away by the abandonment of the river but
the current of the waters belong to the must be the reason for its
owner of the land upon which they may be abandonment, in other words, the
cast, if the owners do not claim them within river is abandoned because of or
6 months. If such owners claim them, they through the natural change of the
shall pay the expenses incurred in water
gathering them or putting them in a safe The owners of land adjoining the old bed
place. are given the preferential right to acquire
the old bed by paying the value thereof
Applies only to uprooted trees o The indemnification shall not
If a known portion of land with trees exceed the value of the area
standing thereon is carried away by the occupied by the new bed (in case
current to another land, Art 459 governs of disagreement, bring the case
The original owner claiming the trees is to court.)
liable to pay the expenses incurred by the
owner of the land upon which they have Requisites
been cast in gathering them or putting i. There must be a natural change in the
them in a safe place course of the waters of the river
Claim must be done in 6 months ii. Change must be abrupt or sudden
o If not, the trees will belong to the
owner of the land where the trees NB: Law speaks of change of river course. If a
have been cast to river simply dries up or disappears, the bed left
o Six months is a condition dry will belong to public dominion (Art 502)
precedent and not a prescription
period
o After a claim is made within 6 Art 462 Whenever a river, changing its
course by natural causes, opens a new bed
months an action may be brought
through a private estate, this bed shall
within the period provided by law
become of public dominion.
for prescription of movables
NB: This article talks of the new riverbed. Art
NB: For trees, you need only CLAIM within the
461 talked about the old riverbed.
period. For land (Art 459), you have to
REMOVE them within 2 years
The bed of a public river or stream is of
public ownership (Art 502)
Art 461 River beds which are abandoned If the river changes its course and opens a
through the natural change in the course of new bed, this bed becomes of public
the waters ipso facto belong to the owners dominion even if its on private property
whose lands are occupied by the new Just as the old had bed had been of public
course in proportion to the area lost. dominion before the abandonment, the
However, the owners of the lands adjoining new riverbed shall likewise be of public
the old bed shall have the right to acquire dominion
the same by paying the value thereof, which No distinction whether a river is navigable
value shall not exceed the value of the area or floatable or not
occupied by the new bed.
Art 463 Whenever a current of a river
River beds abandoned through natural change divides itself into branches, leaving a piece
in the course of waters of land or part thereof isolated, the owner of
They belong to owners occupied by the the land retains his ownership. He also
new course of the river retains it if a portion of land is separated
from the estate by the current.

21
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

island is considered a riparian

NB: This article does not refer to the formation owner together with the owner of
of islands through accretion (thats in Art 464 the land adjoining the bank for
and 465). the purpose of determining
ownership of the island
This article refers to the formation of an island
caused by a river dividing itself into branches o He must of course register the
resulting in: land, else it be subject to adverse
1. The isolation of a piece of land or part possession of another
thereof, or
2. The separation of a portion of land from Navigable river
an estate by the current (see Art 459) o One which forms in its ordinary
condition by itself or by uniting
The owner preserves his ownership of the with other waters a continuous
isolated or separated property highway over which commerce is
or may be carried on
Art 464 Islands which may be formed on the o Test: whether it is navigable in
seas within the jurisdiction of the fact, if it is used or susceptible of
Philippines, on lakes, and on navigable or being used as a highway of
floatable rivers belong to the State. commerce, for trade and travel in
the usual and ordinary modes
Art 465 Islands which through successive o A navigable river is one that is
accumulation of alluvial deposits are floatable, that is, a river
formed in non-navigable and non-floatable admitting floats
rivers, belong to the owners of the margins i. Hence, a floatable
or banks nearest to each of them, or to the stream is a navigable
owners of both margins if the island is in stream (Macatangay v
the middle of the river, in which case it shall Secretary of Public
be divided longitudinally in halves. If a Works in this case,
single island thus formed be more distant natangay si
from one margin than from the other, the Macatangay. Hehehe!)
owner of the nearer margin shall be the sole
owner thereof.
SECTION THREE RIGHT OF
Rules of ownership of islands form through ACCESSION WITH RESPECT TO
alluvion MOVABLE PROPERTY
1. An island belongs to the State as part of its Art 466 Whenever two movable things
patrimonial property if it is formed: belonging to different owners are, without
a. On the seas within the jurisdiction bad faith, united in such a way that they
of the Philippines form a single object, the owner of the
b. On lakes principal thing acquires the accessory,
c. On navigable or floatable rivers indemnifying the former owner thereof for
its value.
2. If it is formed in non-navigable and non-
floatable rivers: Adjunction is
a. It belongs to the nearest riparian The union of two movable things belonging
owner or owner of the margin or to different owners
bank nearest to it as he is In such a way that they form a single
considered in the best position to
object
cultivate and develop the island
But one of the component things
(in other words, sa pinakamalapit
na may ari ng lupa) preserves its value
b. If it is in the middle of the river,
the island is divided longtitudinally Characteristics of adjunction
in halves In order that adjunction may take place, it is
c. If the island formed is longer than necessary that:
the property of the riparian owner, 1. There are two movables belonging to
the latter is deemed ipso jure to different owners
be the owner of that portion which 2. They are united in such a way that they
corresponds to the length of that form a single object; and
portion of his property along the 3. They are so inseparable that their
margin of the river separation would impair their nature or
d. If a new island is formed between result in substantial injury to either
an existing island and an opposite
bank, the owner of the older

22
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

In determining the right of the parties in similar nature which are deemed
adjunction, regard is had only to the things excluded. (See Art 467 and 468)
joined and not to the persons.
But where there is a mere change of form Art 469 Whenever the things united can be
or value which does not destroy the separated without injury, their respective
identity of the component parts, the owners may demand their separation.
original owners may demand their Nevertheless, in case the thing
separation (Art 469) united for the use, embellishment or perfect
of the other, is much more precious than
Kinds of adjunction the principal thing, the owner of the former
1. inclusion or engraftment (such as when a may demand its separation, even though
diamond is set on a gold ring) the thing to which is has been incorporated
2. soldering or soldadura (when led is united may suffer some injury.
or fused to an object made of lead)
a. ferrumincaion (if both the When separation of things united are allowed
accessory and principal are of the 1. Whenever the separation can be done
same metal) without injury
b. plumbatura (if they are of different 2. When the accessory much more precious,
metals) the owner of the accessory may demand
3. writing or escritua (when a person writes its separation even though the principal
on paper belonging to another) thing may suffer some injury
4. painting or pintura (when a person pains Owner who made or caused the union
on canvas of another) or incorporation shall bear the
5. weaving or tejido (when threads belonging expenses for separation
to different owners are used in making 3. When principal acted in bad faith, owner of
textile) accessory may separate even if the
Art 467 The principal thing, as between two principal thing be destroyed
things incorporated, is deemed to be that to
which the other has been united as an Art 470 Whenever the owner of the
ornament, or for its use or perfection. accessory thing has made the incorporation
in bad faith, he shall lose the thing
Art 468 If it cannot be determined by the incorporated and shall have the obligation
rule given in the preceding article which of to indemnify the owner of the principal
the two things incorporated is the principal thing for the damages he may have
one, the thing of the greater value shall be suffered.
so considered, and as between two things If the one who has acted in bad
of equal value, that of greater volume. faith is the owner of the principal thing, the
In painting and sculpture, writings, owner of the accessory thing shall have a
printed matter, engraving and lithographs, right to choose between the former paying
the board, metal, stone, canvas, paper or him its value or that the thing belonging to
parchment shall be deemed the accessory him be separated, even though for this
thing. purpose it be necessary to destroy the
principal thing; and in both cases,
Tests to determine the principal in adjunction furthermore, there shall be indemnity for
In the order of application, the principal is that: damages.
1. To which the other (accessory) has If either one of the owners has
been united as an ornament or for its made the incorporation with the knowledge
use or perfection. (rule of importance and without the objection of the other, their
and purpose) respective rights shall be determined as
2. Of greater value, if they are of though both acted in good faith.
unequal values;
3. Of greater volume, if they are of an ADJUNCTION
equal value; (accessory follows principal)
4. That of greater merits taking into Rights of Owner of Rights of Owner of
consideration all the pertinent legal Principal Accessory
provisions (see Art 475) applicable as Good Faith Good Faith
well as the comparative merits, utility Acquires the Loses the accessory
and volume of their respective things accessory, but has a right to
indemnifying the indemnity for the
The special rule regarding paintings, owner of the value value of the
etc is based on the consideration that thereof accessory
what is painted is of greater value that
the board or canvas inasmuch as the Except: When value of Has a right to
exceptions mentioned are specified, accessory is much demand separation
its provision can not be applied by more precious than even if it causes
analogy to cases of adjunction of the principal thing injury to the principal

23
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

(469) thing (469) o Commixtion (for solids)

o Confusion (for liquids)
Except: When still May demand
separable, may separation (469( Rules governing mixture (co-ownership)
demand separation 1. If the mixture by will of owners, their rights
(no adjunction shall be governed by their stipulations. In
anyway) the absence of any stipulation, each owner
Good faith Bad faith acquires a right or interest in the mixture in
Acquires the Loses the thing and proportion to the value of his materials as
accessory and has a has liability for in co-ownership.
right to indemnity for damages MIXTURE
damages he may have Owner who caused Owner of the thing
suffered mixture mixed into
Bad faith Good faith Good faith or by Good faith or by
Pays for the accessory Option 1: Demand chance chance
plus damages the owner of the
principal to pay for Each owner acquires Each owner acquires
the value of the a right proportional to a right proportional to
Separate thing even if accessory plus the part belonging to the part belonging to
it is destroyed plus damages him, bearing in mind him, bearing in mind
pay damages the value of the things the value of the things
Option 2: Demand mixed or confused mixed or confused
separation even if it Bad faith Good faith
causes the Loses the thing mixed Acquires the thing
destruction of the or confused plus mixed plus entitled to
principal thing plus liable to pay damages damages
damages
Bad Faith Bad Faith
As if both are in good Art 474 One who in good faith employs the
faith material of another in whole or in part in
order to make thing of a different kind, shall
Art 471 Whenever the owner of the material appropriate the thing thus transformed as
employed without his consent has a right to his own, indemnifying the owner of the
indemnity, he may demand that this consist material for its value.
in the delivery of a thing equal in kind and If the material is more precious
value, and in all other respects, to that than the transformed thing or is of more
employed, or else in the price thereof, value, its owner, may, at his option,
according to expert appraisal. appropriate the new thing to himself, after
Art 472 if by the will of their owners two first paying indemnity for the value of the
things of the same or different kinds are thing, or demand indemnity for the material.
mixed, or if the mixture occurs by chance, If in the making of the thing bad
and in the latter case the things are not faith intervened, the owner of the material
separable without injury, each owner shall shall have the right to appropriate the work
acquire a right proportional to the part to himself without paying anything to the
belonging to him, bearing in mind the value maker, or to demand of the latter that he
of things mixed or confused. indemnify him for the value of the material
Art 473 if by the will of only one owner, but and the damages he may have suffered.
in good faith, two things of the same or However, the owner of the material cannot
different kinds are mixed or confused, the appropriate the work in case the value of
rights of the owners shall be determined by the latter, for artistic or scientific reasons, is
the provisions of the preceding article. considerably more than that of the material.
If by the one who caused the
mixture or confusion acted in bad faith, he Definition of specification
shall lose the thing belonging to him thus Takes place whenever the work of a
mixed or confused, besides being obliged person is done on the material of another
to pay indemnity for the damages caused to Such material, in a consequence of the
the owner of the thing with which his own work itself, undergoing a transformation.
was mixed Imparting of a new form to the material
belong to another, or making of the
Definition of mixture
material of another into a different kind
Takes place when two or more things o Flour made into bread, grapes
belonging to different owners are mixed or into wine, clay into bricks, love
combined into hate (joke. Putek, ang boring
With the respective identities of the ng Property. If youve made it this
component parts destroyed or lost far, good for you!)
Two kinds
24
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

ART 476 Whenever there is a cloud on title

SPECIFICATION to real property or any interest therein, by
(accessory follows principal) reason of any instrument, record, claim,
Owner of material Builder encumbrance or proceeding which is
Good faith Good faith apparently valid or effective but it is in truth
Right to Shall appropriate the and in fact invalid, ineffective, voidable or
indemnification for the thing thus unenforceable, and may be prejudicial to
value of the material. transformed as his said title, an action may be brought to
own, indemnifying remove such clod or to quiet the title.
the owner of the An action may also be brought to
material for its value. prevent a cloud from being cast upon title
Except: Material more to real property or any interest therein.
precious than
transformed thing. Title to real property refers to that upon which
ownership is based.
Option 1: Appropriate To be indemnified. Plaintiff in action for quiet title dies, should it be
the new thing to dismissed? No. Its a quasi in rem suit.
himself, indemnifying Defendants defenses: prescription, lack of
the builder for his jurisdiction of court
work. Appropriate the same
after indemnity for Cloud on title
Option 2: Demand material. Semblance of title, either legal or
indemnity for the equitable, or a claim or a right in real
material. property, appearing in some legal from, but
Good faith Bad faith which is in fact, invalid or which would be
Option 1: Appropriate Loses his work. No inequitable to enforce
the work to himself right to indemnity. Requisites
without paying i. Instrument, record, claim,
indemnity. (Damages encumbrance or proceeding
also?) Pay for the materials which is apparently valid or
and damages. effective,
Except: When for ii. Such instrument is in truth and in
artistic or scientific fact, invalid, ineffective, voidable
reasons, the thing has or unenforceable, or has been
a value considerably extinguished or terminated, or
higher than the has been barred by extinctive
material. The owner of Must pay indemnity prescription
the material cannot and damages. iii. Such instrument may be
appropriate the work. prejudicial to said title

Option 2: Demand Action to quiet title

indemnity for material Requisites:
plus damages. i. Plaintiff or complainant has a
legal or an equitable title to, or
interest in the real property
Art 475 In the preceding articles, subject of the action
sentimental value shall be duly ii. The deed, claim or proceeding
appreciated. claimed to be casting cloud on his
title must be shown to be, in fact,
Adjunction, mixture and specification invalid or inoperative despite its
distinguished prima facie appearance of validity
Adjunction Mixture or legal efficacy
At least two things At least two things
Action to quiet title Action to remove a
Component parts retain Things mixed may or cloud on title
or preserve their nature may not retain their Purpose to put Removal of a
respective original an end to possible
nature troublesome foundation for a
Accessory follows Co-ownership results litigation in future hostile
principal respect to the claim
property involved Preventive action
Remedial action to prevent a future
CHAPTER THREE: QUIETING OF
involving a cloud on the title
TITLE present adverse 2nd paragraph of
claim Art 476

25
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

1st paragraph of Title and possession of the plaintiff

Art 476 Plaintiff must have a legal or equitable title
or an interest in the real property which is
An action to quiet title includes an action to the subject matter of the action
remove a cloud of title. o Legal title may consist in full
ownership or in naked ownership
Nature of action o If plaintiff has beneficial interest in
Quasi in rem the property (such as a
Judgment is conclusive only between the beneficiary in a trust), he has
parties beneficial title
The res, the subject-matter of the o Interest in property is any interest
controversy, is within the courts short of ownership, like the
jurisdiction, and it is because of that interest of a mortgagee or a
circumstance that the court is able to usufructuary
adjudicate If plaintiff is not in possession, he may also
Not essential that the court acquire bring one of the three actions mentioned in
jurisdiction of the person of the defendant addition to the action to quiet title
In order to afford complete relief to the
Benefits from allowing actions parties in action to quiet title, the court,
Task of court is to determine the respective without thereby converting the action from
rights of the parties so that the quieting of title into accion publiciana, may
complainant and those claiming under him determine,:
may forever free from any danger of o Incidentally the ownership,
hostile claim (Rumarate case) o The stats of the legal title to the
Affords prompt and adequate method to property
remove cloud on title o Right to the possession thereof
Promotes improvement of property
Art 478 There may also be an action to quiet
title or remove a cloud therefrom when the
To what kind of property does this action
contract, instrument or other obligation has
apply?
been extinguished or has terminated, or has
Real property, which may refer to either
been barred by extinctive prescription.
the title or only an interest therein
(usufruct, servitude, lease record, etc) Two cases when action allowed
Not to personal property An action to quiet title may be maintained:
o But, they may be applied to 1. When the contract, instrument, or other
personalty under exceptional obligation has been extinguished or
circumstances with respect to terminated (right of the defendant has
certain types of property which been extinguished by the happening of a
partake of the nature of condition subsequent)
real property (vessels, 2. When the contract, instrument or other
motor vehicles, obligation has been barred by extinctive
certificates of stocks), or prescription (as where plaintiff has
treated to some extent possess in bad faith the property publicly,
as realty because of adversely and uninterruptedly for 30 years)
registration requirements
for ownership or Art 479 The plaintiff must return to the
transactions affecting defendant all benefits he may have received
them (chattel mortgage) from the latter, or reimburse him for
expenses that may have redounded to the
Prescriptibility of action plaintiffs benefit.
1. If plaintiff in possession, it does not
prescribe. An action to quiet title brought Obligation of plaintiff to return or reimburse
by a person who is in possession of the The purpose of the action to quiet title is
property is imprescriptible. solely
2. If plaintiff not in possession, he must o to remove the cloud on the
invoke his remedy within the proper plaintiffs title or
prescriptive period. Ten years if in good o to prevent a cloud from being cast
faith, 30 years if in bad faith. upon his title, and not to obtain
any other benefit
Art 477 The plaintiff must have legal or Plaintiff is bound to return to the defendant
equitable title to, or interest in the real
all the benefits he may have received form
property which is the subject matter of the
the latter or reimburse him for the
action. He need not be in possession of
expenses incurred on the property which
said property.
has redounded to the plaintiffs benefit

26
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

(less of course, any damage which he In default of contracts, or of special

suffered by reason of the defendant) provisions, co-ownership shall be governed
by the provisions of this Title.
Art 480 The principles of the general law on
the quieting of title are hereby adopted What is co-ownership?
insofar as they are not in conflict with this As a manifestation of ownership, it is that
Code. form of ownership which exists whenever
an undivided thing or right belongs to
Art 481 The procedure for quieting of title or different persons
the removal of a cloud therefrom shall be As a right, it has been defined as the right
governed by such rules of court as the of common dominion which two or more
Supreme Court shall promulgate. persons have in a spiritual or ideal part of
a thing which is not materially or physically
CHAPTER FOUR: RUINOUS divided
BUILDINGS AN TREES IN DANGER
OF FALLING Requisites
i. Plurality of owners
ii. Object of ownership must be an
Art 482 If a building, wall, column or any undivided thing or right
other construction is in danger of falling, iii. Each co-owners right must be limited
the owner shall be obliged to demolish it or only to his ideal share of the physical
to execute the necessary work in order to whole
prevent it from falling.
If the proprietor does not comply Characteristics of co-ownership
with this obligation, the administrative 1. Two or more co-owners
authorities may order the demolition of the 2. Single object which is not materially or
structure at the expense of the owner, or physically divided, over which and his
take measures to insure public safety. ideals share of the whole, each co-owner
exercises ownership, together with the co-
If a building, wall, column or other owners
construction is in danger of falling, the 3. No mutual representation by the co-
owner has the duty to either: owners
o Demolish it, or 4. Exists for the common enjoyment of the
o Repair it. co-owners
In case he doesnt, the administrative 5. No distinct legal personality
authorities, in the exercise of police power, 6. Governed first by the contract of parties
may order the demolition of the structure, a. otherwise, by special legal
or take measures to insure public safety provisions
Recognition of the limitation of the owners b. in default of such provisions, by
rights in the use and enjoyment of his this Title
property
o Sic utere tuo ut alienum non Ownership of a co-owner
laedas. Use your property as Ownership of whole and over his aliquot
not to injure others share
Each owner is at the same time absolute
Art 483 Whenever a large tree threatens to owner of his own ideal but definite share
fall in such a way as to cause damage to the which determines his rights and
land or tenement of another or to travelers obligations in the co-ownership
over a public or private road, the owner of Every co-owner, jointly with the other co-
the tree shall be obliged to fell and remove owners, is the owner
it; and should he not do so, it shall be done i. of the whole, and over the whole
at his expense by order of the he exercises the right of
administrative authorities. dominion, and
ii. he is at the same time the owner
Owner of the tree may be compelled to fell of an aliquot portion which is truly
and remove a threatening tree, and should abstract because until division is
he fail to do so, the work shall be ordered effected such portion is not
done at his expenses by the administrative concretely determined
authorities
Disputed portions owned already concretely
TITLE III CO-OWNERSHIP determined
No co-ownership when the different
ART 484 There is co-ownership whenever portions owned by different people are
the ownership of an undivided thing or right already concretely determined and
belongs to different person. separately identifiable, even if not yet
technically described
27
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Example: When northern half of land owner generally bind the

belongs to buyer, southern half No mutual partnership
belongs to seller representation Distribution of
Distribution of profits is subject
Sources of co-ownership profits must be to stipulation of
1. Contract (two persons share in paying proportional to the partners
purchase price) the respective
2. Law (easement in party walls, absolute interests of the Dissolved by
community of property) co-owners death or
3. Succession (in the case of heirs of Not dissolved by incapacity
undivided property) death
4. Testamentary disposition or donation inter Agreement to There may be
vivos (testator prohibits partition of the agreement as to
keep the thing
property) any definite term
undivided for a
5. Fortuitous event or by chance (commixtion without limit set
period of more
or confusion by accident) by law
than ten years is
6. Occupancy (two folks catch a wild animal
void (although it
in the jungles of Borneo)
may be extended
by a new
Co-ownership Joint Ownership agreement)
Each co-owner, No abstract share
together with the ownership by the Co-ownership Easement
others, is the co-owners, the Each co-owner Precisely a
owner of the right of the joint
has a right of limitation on the
whole undivided tenants being
dominion over right of dominion
thing or right but inseparable
the whole
at the same time
property and
of his own ideal
over his Right of dominion
part thereof Not permitted to
undivided share is in favor of one
Can dispose of dispose of his Right of or more persons
his share without share or interest
ownership rests and over two or
the consent of the in the property
solely on each more different
other without the
and every co- things
consent of others
owner over a
Survivors are If joint tenant
single object
subrogated to the dies, his
rights of the ownership dies Case doctrines
deceased with him
The property regime of parties to a
immediately upon
bigamous marriage is governed by Art 148
the death of the
of the Family Code which provides that all
latter Disability of a
properties acquired by the parties out of
Disability of a co- joint tenant inures their actual joint contribution of money,
owner does not to the benefit of property, or industry shall be governed by
inure to the the others for the rules on co-ownership. If there is no
benefit of the purposes of contribution from either or both of the
others prescription spouses, there can be no co-ownership.
(Acre v Yuttikki - aw yeah, what a name.)
Co-ownership Partnership
May be created Can be created Art 485 The share of the co-owners, in the
without only by a benefits as well as in the charges, shall be
formalities of a contract, express proportional to their respective interests.
contract or implied Any stipulation in a contract to the contrary
No juridical or Distinct juridical shall be void.
legal personality personality The portions belonging to the co-
Purpose is Purpose to obtain owners in the co-ownership shall be
collective profits presumed equal, unless the contrary is
enjoyment of the proved.
thing Unless
Co-owner can authorized, a Presumption: Proportional to their respective
dispose of his partner cannot interests
share without the dispose and Does not apply to co-ownership based on will
consent of the substitute another or by donation.
others, transferee partner in his
automatically place Art 486 Each co-owner may use the thing
becoming a co- Partner can owned in common, provided he does so in

28
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

accordance with the purpose for which it is from this obligation by renouncing so much
intended and in such a way as not to injure of his undivided interest as may be
the interest of the co-ownership or prevent equivalent to his share of the expenses and
the other co-owners from using it according taxes. No such waiver shall be made if it is
to their rights. The purpose of the co- prejudicial to the co-ownership.
ownership may be changed by agreement,
express or implied. Obligation to contribute to expenses of
preservation and to taxes
Limitations on co-owners right to use The expenses of preservation of the thing
1. Must be n accordance with the purpose for or right owned in common and the amount
which the co-ownership is intended of taxes due thereon should be borne by
Resort to the agreement all
In absence thereof, it is to be A co-owner who advanced them has a
understood that the thing is right to demand reimbursement from the
intended for that use for which it others in proportion to their respective
is ordinarily adapted according to interests in the co-ownership
its nature Refers only to necessary expenses
Co-owners are free to change the Useful expenses are not covered, unless
purpose of the co-ownership by such were incurred with the consent of the
agreement, express or implied others
o However, mere Expenses for pure luxury are not also
tolerance does not refundable, not being for preservation
change purpose
2. Must not injure the interest of the co- Renunciation by a co-owner of his share in the
ownership co-ownership
3. Must not prevent the co-owners from using Renunciation need not be total
it according to their rights The co-owner need only renounce or give
up in favor of the other co-owners so much
Art 487 Anyone of the co-owners may bring
of this undivided share as may be
an action in ejectment.
equivalent to his share of expenses and
taxes
Action in ejectment
Example?
Any co-owner can bring, in behalf of
himself, and the other co-owners an action
Art 489 Repairs for preservation may be
in ejectment affecting the co-ownership
made at the will of one of one of the co-
o Forcible entry, unlawful detainer,
owners, but he must, if practicable, first
recovery of possession, recovery notify his co-owners of the necessity for
of ownership such repairs. Expenses to improve or
May be brought against strangers and embellish the thing shall be decided upon
even against a co-owner by a majority as determined in Article 492.
o Only purpose of an action against
a co-owner who takes exclusive Necessity for agreement on expenses
possession and asserts exclusive Acts or decisions affecting the ting owned
ownership of the property is to in common may be grouped into
obtain recognition of the co- o Acts of preservation (Art 489)
ownership o Acts of administration (Art 492)
An adverse decision in the action is not o Acts of alteration (Art 491)
necessarily res judicata with respect to the
Repairs for preservation
other co-owners not being parties to the
o A co-owner has the right to
action
o Exception: where it appears that compel the other co-owners to
contribute to the expenses of
the action was instituted in their
preservation, maintenance or
behalf with their express or
necessary repairs of the thing or
implied consent, or
right owned in common, and to
o The rights in the co-ownership
the taxes, even if incurred without
are derived from the title of their
the knowledge of other co-owners
predecessors-in-interest found by
or prior notice to them, in view of
the court to be invalid or
the nature of expenses
inexistent
o Co-owner must, if practicable,
first notify the co-owners of the
Art 488 Each co-owner shall have a right to
necessity for the repairs
compel the other co-owners to contribute to
If impracticable or where
the expenses of preservation of the thing or
right owned in common and to the taxes. the repairs are very
Anyone of the latter may exempt himself urgent and the other co-
owners are in remote
29
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

places and cannot be o Withdrawal of the thing from the

reached, the notice may use to which they wish it to be
be dispensed with intended; or
o The lack of notice, even if o Any other transformation which
practicable, would not exempt the prejudices the condition or
other co-owners from the substance of the thing or its
obligation to contribute to the enjoyment by the others.
expenses. But the co-owner who Alteration is not limited to material or
advanced them has the burden of physical changes
proving that they were properly o Includes any act of ownership by
incurred. which a real right or encumbrance
is imposed on the common
Art 490 Whenever the different stories of a property, such as servitude,
house belong to different owners, if the registered lease, lease of real
titles of ownership do not specify the terms property for more than one year,
under which they should contribute to the mortgage, pledge
necessary expenses and there exists no NB: Unanimous consent of all the co-
agreement on the subject, the following owners, not a mere majority, is necessary
rules: even if the alteration would prove
1. the main and party walls, the roofs beneficial because alteration is an act of
and the other things used in ownership and not of mere administration
common, shall be preserved at the o Consent may be expressed or
expense of all the owners in
implied
proportion to the value of the story
Liability for alteration: the co-owner who
belonging to each;
2. Each owner shall bear the cost of makes such alteration without the express
maintaining the floor of his story; or implied consent of the other co-owners
the floor of the entrance, front door, acts in bad faith because he does so as if
common yard and sanitary works he were the sole owner
common to all shall be maintained o He loses what he has spent
at the expense of all the owners pro o Obliged to demolish the
rata; improvements done, and
3. The stairs from the entrance to the o Liable to pay for loses and
first story shall be maintained at damages the community property
the expense of all the owners pro or the other co-owners may have
rata, with the exception of the suffered
owner of the ground floor; the
stairs from the first to the second Art 492 For the administration and better
story shall be preserved at the enjoyment of the thing owned in common,
expense of all, except the owner of the resolutions of the majority of the co-
the ground floor and the owner of owners shall be binding.
the first story; and so on There shall be no majority unless
successively. the resolution is approved by the co-owners
who represent the controlling interest in the
Applies if the titles of ownership do not object of the co-ownership.
specify the terms thereof or there exists no Should there be no majority, or
agreement on the subject should the resolution of the majority be
seriously prejudicial to those interested in
Art 491 None of the co-owners shall without the property owned in common, the court,
the consent of the others, make alterations at the instance of an interested party, shall
in the thing owned in common, even though order such measures as it may deem
benefits for all would result therefrom. proper, including the appointment of an
However, if the withholding of the consent administrator.
by one or more ot the co-owners is clearly Whenever a part of the thing
prejudicial to the common interest, the belongs exclusively to one of the co-
courts may afford adequate relief. owners, and the remainder is owned in
common, the preceding provisions shall
Necessity of consent of other co-owners for apply only to the part owned in common.
alterations
Alteration contemplates a change made by Rules for acts of administration and better
a co-owner in the thing owned in common enjoyment
which involves: Acts of management of the common
o Change of the thing from the property
state or essence in which the They contemplate acts or decisions for the
others believe it should remain; or common benefit of all the co-owners and

30
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

not for the benefit of only one or some of other co-owners or any of them are sold to
them a third person (not a co-owner)1
While alteration is more or less permanent, o Harry, Ron and Neville were co-
acts of administration have transitory owners of a parcel of land. Harry
effects and have for their purpose the sold his share to Draco. Ron and
preservation, preparation and better Neville may redeem the share
enjoyment of the thing and which do not from Angel. If only Ron exercises
affect its essence, nature or substance the right, he shall pay only a
NB: Majority rule prevails. reasonable price. Subject to
o The majority consists of co- reimbursement from Neville, as it
owners who represent the is a preservation expense.
controlling interest in the object of o If they both want to exercise the
the co-ownership. right, they may only do so in
o The majority likewise decides the proportion to the share they may
expenses to improve or embellish respectively have in the thing
the common property. Notice owned in common.
must be given to the minority
unless it is impracticable to do so. A co-owner may exempt himself from the
If there is no majority or the resolution of obligation to contribute to the expenses of
the majority is seriously prejudicial to the preservation of the thing or right owned in
interests of the other co-owners, the court, common and to the taxes by renouncing
at the instance of an interested party, may so much of his interest as may be
take such measures as it may deem equivalent to his share of the expenses
proper and taxes
o Examples of prejudicial acts:
Resolution calls for a Sale or mortgage of common property
substantial change of Undivided portion
the thing o A co-owner is free to dispose of
Authorizes leases, his pro indiviso share and of the
loans, and other fruits and other benefits arising
contracts without the from that share but the transferee
necessary security does not acquire an specific or
Upholds the continued determinate physical portion of
employment of an the whole, his right being limited
administrator who is guilt to the portion which may be
of fraud or negligence in allotted to him upon the partition
his management of the property
Definite portion
Art 493 Each co-owner shall have the full o The fact that a deed of sale
ownership of his part and of the fruits and appears to convey a definite or
benefits pertaining thereto, and he may segregated portion of the property
therefore alienate, assign or mortgage it, under co-ownership that is still
and even substitute another person in its undivided does not per se render
enjoyment, except when personal rights are the sale a nullity
involved. But the effect of the alienation or o The sale is valid subject only to
the mortgage, with respect to the co-owners the condition that the interests
shall be limited to the portion which may be acquired by the vendee must be
allotted to him in the division upon the limited to the part that may be
termination of the co-ownership. assigned to the co-owner-vendor
in the division upon the
Rights of each co-owner termination of the co-ownership
1. Full ownership of his part, that is, his o The sale affects only his
undivided interest or share in the common proportionate or abstract share in
property the property owned in common,
2. Full ownership of the fruits and benefits subject to the results of the
pertaining thereto partition, but not those of the
3. May alienate, assign or mortgage his ideal
1
interest or share independently of the Art 1620 A co-owner of a thing may exercise the
other co-owners right of redemption in case the shares of all the other
4. May even substitute another person in the co-owners or of any of them, are sold to a third
enjoyment of his part, except when person. If the price of the alienation is grossly
excessive, the redepmtioner shall pay only a
personal rights are involved
reasonable one.
Should two or more co-owners desire to exercise the
A co-owner is given the legal right of right of redemption they may only do so in proportion
redemption in case the shares of all the to the share they may respectively have in the thing
owned in common.
31
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

other co-owners who did not 3. Acquisitive prescription in favor of a

consent to the sale third person, or a co-owner who
o There may be a valid sale of a repudiates the co-ownership
definite portion of the property co- 4. Partition, judicial or extrajudicial
owned even before actual 5. Termination of the period agreed upon
partition where the rule of or imposed by the donor or testator, or
estoppel apples (co-owners didnt of the period allowed by law
object when seller pointed a 6. Sale by the co-owners of the thing to a
portion out to a potential buyer) third person and the distribution of its
Whole property proceeds among them
o Even if a co-owner sells the
whole property as his own, or Right of a co-owner to demand partition
without the consent of ther other Partition is the division between two or
co-owners, the sale is valid only more persons of real or personal property
insofar as his ideal quota is which they own in common so that each
concerned unless the sale is may enjoy and possess his sole estate to
authorized by the other co- the exclusion of and without interference
owners from the others
o A sale of the entire property by Co-owner ahs the right to demand at any
one co-owner will only transfer time partition of the thing owner in
the rights of said co-owner to the common, insofar as his share is concerned
buyer, thereby making the buyer for no co-owner shall be obliged to remain
a co-owner of the property in the co-ownership
o Recourse of co-owners when Action to demand partition is
their consent was not secured: imprescriptible or cannot be barred by
action for partition laches, absent a clear repudiation of the
co-ownership by a co-owner clearly
Where personal rights are involved communicated to the other co-owners
A co-owner may substitute another in the The actual possession and enjoyment of
enjoyment of his undivided interest in the several portions of the common property
co-ownership except when personal rights by some of the co-owners does not of itself
are involved provide proof that the property has already
Personal right a right which cannot be been partitioned and co-ownership
transferred because it affects the personal terminated.
relations of the co-owners with one o A co-owner cannot, without the
another conformity of the other co-owners
or judicial decree of partition,
Art 494 No co-owner shall be obliged to adjudicate to himself in fee simple
remain in the co-ownership. Each co-owner a determinate portion of the
may demand at any time the partition of the property owned in common as his
thing owned in common, insofar as his share theirein, to the exclusion of
share is concerned. the others
Nevertheless, an agreement to keep
the thing undivided for a certain period of Exceptions to the right to demand partition
time, not exceeding ten years, shall be 1. When the co-owners have agreed to keep
valid. This terms may be extended by a new the thing undivided for a certain period of
agreement. time, not exceeding ten years
A donor or testator may prohibit o Period stipulated exceeds ten
partition for a period which shall not exceed years would be void insofar as
twenty years. the excess is concerned
Neither shall there be any partition 2. When the partition is prohibited by donor
when it is prohibited by law. or testator for a certain period not
No prescription shall run in favor of exceeding twenty years
co-owner or co-heir against his co-owners 3. When the partition is prohibited by law
or co-heirs so long as he expressly or o Conjugal property, etc
impliedly recognizes the co-ownership. 4. When partition would render the thing
unserviceable for the use for which it is
Termination of co-ownership intended
Co-ownership may be terminated in 5. When another co-owner has possessed
different ways, as follows the property as exclusive owner and for a
1. Consolidation or merger in only one of period sufficient to acquire it by
the co-owners of all the interests of prescription
the others;
2. Destruction or loss of the property co- Prescription in favor of or against a co-owner
owned Prescription does not run in favor or
against a co-owner or co-heir
32
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Co-ownership is a form of a trust, with An action for partition will not lie if the
each owner being a trustee for each other. claimant has no rightful interest over the
Where, however, a co-owner or co-heir subject property
repudiates the co-ownership, prescription
begins to run from the time of repudiation How partition effected
(requisites) May be effected extrajudicially pursuant to
i. He had performed unequivocal an agreement
acts of repudiation of the co- May be effected judicially by judicial
ownership amounting to an ouster proceedings under Rule 69 of the Rules of
of the beneficiary or the other co- Court
owners o An action for partition is in the
ii. Such positive acts of repudiation nature of an action quasi in rem
have been made known to the
beneficiary or other co-owners Application of the Statute of Frauds
iii. Evidence thereon is clear, The Statute of Frauds does not apply to
complete and conclusive in order partition because it is not legally deemed a
to establish prescription without conveyance or a sale of property resulting
any shadow of doubt; and in change of ownership but simply a
iv. Possession is open, continuous, segregation and designation of that part of
exclusive and notorious the property which belongs to each of the
co-owners
Examples of specific acts which are considered Oral partition is valid and enforceable
as acts of repudiation
where no third persons are involved
Filing by a trustee of an action in court o In cases of oral partition, the
against the trustor to quiet title to property actual possession of one of the
Action for reconveyance of land based on property is evidence that there
implied or constructive trust was indeed oral partition.
Cancellation of title in the name of the o In an oral partition under which
apparent beneficiaries and application for the parties went into possession,
a new certificate of title in his exercises acts of ownership, or
(administrator/trustee) name otherwise partly performed the
partition agreement, equity will
Art 495 Notwithstanding the provisions of confirm such partition and in a
the preceding article, the co-owners cannot proper case, decree title in
demand a physical division of the thing accordance with the possession
owned in common, when to do so would in severalty
render it unserviceable for the use for which
it is intended. But the co-ownership may be Art 497 The creditors or assignees of the
terminated in accordance with Article 498. co-owners may take part in the division of
the thing owned in common and object to
Art 496 Partition may be made by its being effected without their concurrence.
agreement between the parties or by But they cannot impugn any partition
judicial proceedings. Partition shall be already executed, unless there has been
governed by the Rules of Court insofar as fraud, or in case it was made
they are consistent with this Code. notwithstanding a formal opposition
presented to prevent it, without prejudice to
Purpose and effect of partition the right of the debtor or assignor to
Partition has for its purpose the maintain its validity.
separation, division and assignment of the
thing held in common among those to The law does not expressly require that
whom it may belong. previous notice of the proposed partition
After partition, the portion belonging to be given to the creditors and assignees.
each co-owner has been identified and But as they are granted the right to
localized, so that co-ownership, in its real participate in the partition, they have also
sense, no longer exists the right to be notified thereof. In the
absence of notice, the partition will not be
Action for partition binding on them.
Two phases: Rules:
o Determine whether there is o If no notice is given, the creditors
indeed a co-ownership or assignees may question the
o Determine how the property is to partition already made;
be divided o If notice is given, it is their duty to
The issue of ownership or co-ownership appear and make known their
must first be solved in order to effect a position; they may concur with the
partition of properties

33
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

proposed partition or object to it; damages caused by reason of his

and negligence or fraud.
o They cannot impugn a partition
already executed or implemented Art 501 Every co-owner shall, after partition,
unless: be liable for defects of title and quality of
There has been fraud, the portion assigned to each of the other
whether or not notice co-owners.
was given, and whether
or not formal opposition What are the obligations of the co-owners upon
was presented, or partition? (ARIW)
The partition was made 1. Mutual accounting for the benefits
notwithstanding that received (because the fruits and other
formal opposition was benefits of the thing belong to all the co-
presented to prevent it, owners)
even if there has been 2. Mutual reimbursement for expenses
no fraud. (necessary expenses, taxes, etc)
Debtor or assignor has always the right to 3. Indemnity for damages caused by reason
show the validity of the partition. of negligence or fraud
4. Reciprocal warranty for defects of title or
Art 498 Whenever the thing is essentially quality of the portion assigned to a co-
indivisible and the co-owners cannot agree owner (land allotted to a co-owner belongs
that it be allotted to one of them who shall to a third party, or the property is of inferior
indemnify the others, it shall be sold and its quality)
proceeds distributed. a. Atty Abrenica said that in practice,
the remedy in this situation is to
divide the remaining property and
Although the thing cannot be physically
just give it to the one prejudiced
divided, the co-ownership may
nevertheless be terminated in accordance
with the above provision pursuant to the THE CONDOMINIUM ACT
rule in Art 494 by adjudication of the thing A condominium is an
to one of the co-owners who shall o Interest in real property consisting
indemnify the others or by its sale with the of
proceeds thereof divided among the co- A separate interest in a
owners unit in a residential,
Sale may be private, public, and industrial, or commercial
purchases may be a co-owner or a third building, and
person An undivided interest in
Art 498 applies when: common directly or
o Thing indivisible indirectly in the land on
o Co-owners cant agree that it be which it is located and in
allotted to one of them, who shall other common areas of
indemnify the others the building.
o So, ibenta na lang! Two important documents: Master Deed
and Declaration of Restrictions
Art 499 The partition of a thing owned in Foreigners can own up to 40% of the
common shall not prejudice third persons entire condominium corporation (so if the
who shall retain the rights of mortgage, condominium has 100 units, foreigners
servitude, or any other real rights belonging can own up to 40 units)
to them before the division was made. Project means the entire parcel of real
Personal rights pertaining to third persons property divided or to be divided in
against the co-ownership shall also remain condominiums, including all structures
in force, notwithstanding the partition. thereon
Common areas (meaning the entire
Third persons, refer to all those with real project excepting all units separately
rights, such as mortgage and servitude granted or held or reserved) are owned by
over the thing owned in common or with the condominium corporation
personal rights against the co-owners who Private units (meaning the a part of the
had no participation whatever in the condo project intended for any type of
partition independent use or ownership) are owned
by the unit owners
Art 500 Upon partition, there shall be a o Unit owners are shareholders in
mutual accounting for benefits received and the condominium
reimbursements for expenses made. o If you sell your unit to someone
Likewise, each co-owner shall pay for else, you lose your status as a

34
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

shareholder in the condominium Insane and demented persons cannot

corporation acquire possession as they are
Condominium Certificate of Title is whats incapable of understanding their
given (as opposed to a OCT or TCT) actions, therefore, the animus
possidendi cannot be present
TITLE V POSSESSION 3. In ones own right
CHAPTER ONE Possession may be in ones own
name or that of anothers (by himself
POSSESSION AND THE KINDS or by an agent)
THEREOF In the first case, the possession may
be in the concept of owner or in the
Art 523 Possession is the holding of a thing concept of a holder of a thing with
or the enjoyment of a right. ownership pertaining to another
In the second case, the possession is
Concept of possession exercised by the owner or holder thru
As a distinct legal concept, possession is his agent
the holding of a thing or the enjoyment of a In both cases, the possession of the
right with the intention to possess in ones owner or holder is by virtue of his right
own right as such owner or holder
Ownership and possession distinguished What are the relations created by possession?
There is ownership when a thing pertaining Possession is characterized by two
to one person is completely subjected to relations:
his will in a manner not prohibited by law 1. Possessors relation to the property
and consistent with the rights of others. It itself this assumes that the
confers certain right to the owner (right to possessor exercises some degree of
enjoy the thing owned and the right to control more or less effective over the
exclude other persons from possession object.
thereof) 2. Possessors relation to the world
On the other hand, possession is defined aside from the power of control over
as the holding of a thing or the enjoyment the object, the possessor must also
of a right. To possess means to actually have the ability to exclude others from
and physically occupy a thing with or his possession. A customer who holds
without a right. and examines a piece of jewelry in the
Possession may be in the concept of an presence of the seller may be said to
owner or in the concept of a holder. have only custody, not possession, of
A person may be declared owner but he the jewelry.
may not be entitled to possession. (As in
when the possession is in the hands of a Forms or degrees of possession
tenant) 1. Possession without any title whatever
A judgment for ownership does not Mere holding or possession without
necessarily include possession as a any right or title at all, such as that of
necessary incident. a thief or squatter
Just as possession is not a definite proof 2. Possession with a juridical title
of ownership, neither is non-possession Predicated on a juridical relation
inconsistent with ownership. existing between the possessor and
the owner (or one acting in his behalf)
What are the elements of possession? of the thing but not in the concept of
1. Holding or control of a thing or right owner, such as that of a lessee,
Possession always implies the usufructuary, depositary, agent, etc
element of corpus or occupation, 3. Possession with a just title
whether in ones own name or another Possession of an adverse claimant
(except in cases in Art 537) whose title is sufficient to transfer
In other words, there must be ownership but is defective, such as
possession in fact when the seller is not the true owner
2. With intention to possess or could not transmit his rights thereto
the intention and the will to possess to the possessor who acted in good
are inferred from the fact that the thing faith
is under the control of the alleged 4. Possession with a title in fee simple
possessor, however, the existence of Possession derived from the right of
the animus possidendi is always dominion or possession of an owner.
subject to contradiction (when in fact This is the highest degree of
the person does not in fact exercise possession.
such power of control and does not
intend to do so) Nature of possession

35
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

1. As an act Literally, to possess means to actually

Simply the holding of a thing or the and physically occupy a thing with or
enjoyment of a right with the intention without a right.
to possess in ones own right 2. Constructive possession
2. As a fact Occupancy of part in the name of the
When there is holding or enjoyment, whole under such circumstances that
then possession exists as a fact. It is the law extends the occupancy to the
the state or condition of a person possession of the whole.
having property under his control, with Doctrine of constructive possession
or without right Possession in the eyes of the law does not
3. As a right mean that a man has to have his feet on
Refers to the right of a person to that every square meter of ground before it can
holding or enjoyment to the exclusion be said that he is in possession.
of all others having better right than The general rule is that the possession
the possessor. It may be: and cultivation of a portion of a tract of
o Jus possidendi, or right to land under claim of ownership of all is
possession which is constructive possession of all.
incidental to and included in o There are qualifications to this
the right of ownership; or rule, and one of them is that
o Jus possessionis or right of relating to the size of the tract in
possession independent of controversy with reference to the
and apart from the right of portion actually in possession of
ownership. the claimant.

Possession as a fact
1. The face of possession gives rise to Art 524 Possession may be exercised in
certain rights and presumptions. ones own name or in that of another.
Thus a person has a right to be
respected in his possession, and Name under which possession may be
should he be disturbed therein, he exercised
shall be protected or restored to said An owner or a holder may exercise his
possession. possession in his own name or through
A possessor has in his favor the another.
presumption that his possession is In the same way, possession may be
lawful that he is the owner or has acquired by the same person who is to
been given the right of possession by enjoy it or by one acting for another (Art
the owner. He who would disturb a 532)
possessor must show either 1. In ones own name
ownership or a better possessory o When in ones own name, the fact
right. of possession and the right to
2. Possession is not a definitive proof of such possession are found in the
ownership nor is non-possession same person, such as the actual
inconsistent therewith. Possession, possession of an owner or a
however, may create ownership either by lessor of land.
occupation or by acquisitive prescription. 2. In the name of another
o When possession is in the name
Classes of possession of another, the one in actual
1. Possession in ones own name or in the possession is without any right of
name of another (Art 524) his own, but is merely an
2. Possession in the concept of owner or instrument of another in the
possession in the concept of holder (Art exercise of the latters
525), and possession, such as possession
3. Possession in good faith or possession in of an agent, servant or guard.
bad faith (Art 526) Possession in anothers name
may be:
Extent of possession Voluntary, when
1. Actual possession exercised by virtue of an
Occupancy in fact of the whole or at agreement, or
least substantially the whole. With Necessary or legal,
land, it consists in the manifestation of when exercised by virtue
acts of dominion over it of such a of law, such as the
nature as a party would naturally possession in behalf of
exercise over his property. incapacitated persons.
Physical or material,
when the possessor is a

36
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

mere custodian of the This takes place when the

property and has no possessor, by his actions, is
independent right or title considered or is believed by other
to retain or possess the people as the owner, regardless
same as against the of the good or bad faith of the
owner (like the possession.
possession of money It is possession under a claim of
received by a teller for ownership or title by one who is
the bank), or the owner himself or one who is
Juridical, when the not the owner but claims to be
possession gives the and acts as the owner.
transferee a right over 2. Possession in the concept of holder
the thing which the This takes place when the
transferee may set up possessor of a thing or right holds
against the owner, such it merely to keep or enjoy it, the
as the possession of an ownership pertaining to another
agent who receives the person.
proceeds of sales of It is possession not under a claim
goods delivered to him
of ownership, the possessor
in agency by his
acknowledging in another a
principal.
superior right which he believes
to be of ownership, whether this
Case doctrines
be true or not, or his belief be
In the grammatical sense, to possess right or wrong.
means to have, to actually and physically A person may be a lessor
occupy a thing, with or without a right. Two
although he is not the owner of
things are paramount in possession
the property leased. In lease, only
o there must be occupancy,
the temporary use and
apprehension or taking, and enjoyment, not the ownership of
o there must be intent to possess the property is transferred.
(animus possidendi). (Yu v
Pacleb) Possession in concept of both owner and
Possession always includes the idea of holder or in neither
occupation. It is not necessary that the It is possible that a person may exercise
person in possession should himself be possession both in the concept of owner
the occupant. The occupancy can be held and in the concept of holder.
by another in his name. without A distinction must be borne in mind
occupancy, there is no possession. (Yu v between possession of the thing itself and
Pacleb) possession of the right to keep or enjoy
the thing.
o Rights are possessed in the
Art 525 The possession of things or rights
concept of owner. Thus, the
may be had in one of two concepts: either
lessee possesses the thing
in the concept of owner, or in that of the
leased in the concept of holder,
holder of the thing or right to keep or enjoy
and the right of lease in the
it, the ownership pertaining to another
concept of owner.
person.
The agent, parent and other legal
Concept in which possession may be had representatives possess neither in the
Concept, as contemplated in the provision, concept of owner nor holder. They possess
in the name of another.
does not mean the opinion, attitude or
belief of the possessor, but of the others,
Case doctrines
generally in view of the circumstances
Possession is:
which precede and accompany the
possession. o open when it is patent, visible,
Thus, possession in the concept of owner apparent, notorious and not
is distinguished from possession in good clandestine.
faith. o continuous when uninterrupted,
This kind of possession is also referred as unbroken and not intermittent or
occasional.
to adverse possession that may ripen into
o exclusive when the adverse
ownership under Article 540.
possessor can show exclusive
Possession may be had in one of two
dominion over the land and an
concepts:
appropriation of it to his own use
1. Possession in the concept of owner
and benefit
(en concepto de dueno)

37
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

o notorious when it is so The good or bad faith is necessarily

conspicuous that it is generally personal to the possessor but in the case
known and talked off by the public of a principal and any person represented
or the people in the by another, the good or bad faith of the
neighborhood. agent or legal rep will benefit or prejudice
Use of land is adverse when it is open and him for whom he acts.
notorious. (Republic v Imperial Credit
Corporation) Requisites for possession in good faith or bad
While a tax declaration by itself is not faith
sufficient to prove ownership, it may serve 1. The possessor has a title or mode of
as sufficient basis for inferring possession. acquisition; (Art 712)
(Rep v ICC) 2. There is a flaw or defect in said title or
Tax declarations and receipts can only be mode; and
the basis of a claim of ownership through 3. The possessor is unaware or aware of the
prescription when coupled with proof of flaw or defect or believes that the thing
actual possession. (Heirs of Cabal v belongs or does not belong to him.
Cabal) A possessor in good faith becomes a
However, tax declarations and receipts are possessor in bad faith from the moment he
not conclusive evidence of ownership. At becomes aware that what he believes to
most, they constitute mere prima facie be true is not so.
proof of ownership or possession of the If the flaw is in the title of the possessors
property for which the taxes have been predecessor, and affects his own title, the
paid. In the absence of actual public and flaw exists in his own title unless he can
adverse possession, the declaration of the sustain his own independent of that of his
land for tax purposes does not prove predecessor.
ownership. (Cequena v Bolante)
Concept of good faith
Art 526 He is deemed a possessor in good Good faith or the lack of it is a question of
faith who is not aware that there exists in intention, but in ascertaining the intention,
his title or mode of acquisition any flaw the courts are necessarily controlled by the
which invalidates it. evidence as to the conduct and outward
He is deemed a possessor in bad acts by which alone the inward motive may
faith who possesses in any case contrary to be determined.
the foregoing. Good faith or the want of it, is not a visible,
Mistake upon a doubtful or difficult tangible fact that can be seen or touched
question of law may be the basis of good but rather a state or condition of mind
faith. which can only be ascertained by actual or
fancied tokens or signs.
Define possessor in good faith and in bad faith The essence of bona fides or good faith
A possessor in good faith (Buena fe) is lies in:
one who is not aware that there exists in o The honest belief in the validity of
his title or mode of acquisition any flaw ones right,
which invalidates it. o ignorance of a superior claim, and
A possessor in bad faith (mala fe) is one o absence of intention to overreach
who possesses in any case contrary to the another, or to defraud or to seek
foregoing; he is aware that there exists in an unconscionable advantage.
his title or mode of acquisition a flaw which (also the doctrine of Heirs of
invalidates it. Cabal)
This article presupposes that the there Good faith must rest on a colorable right in
exists a flaw in the title or mode of the possessor beyond a mere stubborn
acquisition of the possessor who is either belief in ones title.
aware or not aware of it. One is considered a possessor in good
If there is no flaw, there can be no issue faith if he is not aware that there exists in
regarding good or bad faith. his title or mode of acquisition any flaw
Good faith is always presumed, and upon which invalidates it.
him who alleges bad faith on the part of Basically, its honesty of intention and
the possessor rests the burden of proof. absence of malice.
The distinction is importance principally in
connection with the receipt of fruits and the Concept of bad faith
payment of expenses and improvements It is the opposite of good faith.
and the acquisition of ownership by It imputes a dishonest purpose to do
prescription. wrong or cause damage.
The distinction is immaterial in the exercise It contemplates a state of mind
of the right to recover under Article 539 affirmatively operating with furtive design
which speaks of every possessor.
38
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

or some motive of self-interest of ill-will for the possessor acquires knowledge of facts
ulterior purposes. showing a defect or weakness in his title.
The law speaks of facts in place of the
Mistake upon a doubtful or difficult question of word acts, the former being broader than
law the latter. Thus, it is immaterial whether the
The phrase mistake upon a doubtful or facts from which bad faith can be
difficult question of law refers to the deduced involve acts of the possessor
honest error in the application of the law or himself or of some other person or any
interpretation of doubtful or conflicting extraneous evidence. But the existence of
legal provisions or doctrines. the facts mentioned in the article must be
It is different from ignorance of the law. proved.
Manresa says that gross and inexcusable Bad faith begins or good faith is
ignorance of the law may not be the basis interrupted from the time the possessor
of good faith, but excusable ignorance becomes aware that the he possesses
may be such basis if it is based upon the thing improperly or wrongfully, not
ignorance. from the time possession was acquired.
Dean Capistrano says that excusable In the absence of other facts showing the
ignorance as a basis of good faith was possessors knowledge of defect in his
rejected by the Code Commission. title, good faith is interrupted from the
receipt or service of judicial summons.
Case doctrines o From the service of judicial
The possessor with a Torrens Title who is summons, there exists an act
not aware of any flaw in his title which which the possessor knows that
invalidates it is considered a possessor in his right is not secure, that
good faith and his possession does not someone disputes it, and that he
lose this character except in the case and may yet lose it; and if the court
from the moment his Torrens Title is orders that restitution be made,
declared null and void by final judgment of that time determines all the legal
the Courts. (Dizon v Rodriguez) consequences of the interruption,
The defense of having purchased the the time when the possession in
property in good faith may be availed of good faith ceases to be so before
only where registered land is involved and the law.
the buyer had relied in good faith on the o The filing of a case alleging bad
clear title of the registered owner. (Daclag faith on the part of a vendee
v Macahilig) gives cause or cessation of good
faith.

Art 527 Good faith is always presumed, and Case doctrines

upon him who alleged bad faith on the part When a contract of sale is void, the
of a possessor rests the burden of proof. possessor is entitled to keep the fruits
during the period for which it held the
Presumption of good faith property in good faith, which good faith
This article establishes the presumption of ceases when an action to recover
good faith; it does not say that good faith possession of the property is filed against
exists, but that it is presumed. him and he is served summons therefor.
The presumption is just because (DBP v CA)
possession is the outward sign of
ownership. It is to be presumed that the Art 529 It is presumed that possession
right of the possessor is well-founded. continues to be enjoyed in the same
character in which it was acquired, until the
Every person is presumed to be honest
contrary is proven.
until the contrary is shown.
But note that for the purposes of Continuity of the character of the possession
prescription, just title must be proved; it is The character or possession (good faith or
never presumed.
bad faith) is presumed to continue until the
contrary is proved
Art 528 Possession acquired in good faith
No one can, by his sole will nor by the
does not lose this character except in the
case and from the moment facts exist which mere lapse of time, change the cause of
show that the possessor is not unaware his possession.
that he possesses the thing improperly or
wrongfully. Presumption on the continuance of possession
There are other presumption aside from
Cessation of good faith during possession Articles 527 and 529 affecting possession,
Possession which begins in good faith is namely:
presumed to continue in good faith until
39
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

1. Uninterrupted possession of subject to the action of our will, or by the

hereditary property (Art 533) proper acts and legal formalities
2. Possession with just title (Art 541) established for acquiring such right. (438a)
3. Possession of movables with real
property (Art 542) Ways of acquiring possession
4. Exclusive possession of common To be considered in possession, one need
property (Art 543) not have actual or physical occupation of a
5. Continuous possession (Art 544) thing all times. There are three ways of
6. Uninterrupted possession (Art 561), acquiring possession, namely:
and 1. By the material occupation or exercise
7. Possession during intervening period of a right;
(Art 1138) 2. By the subjection of the thing or right
to our will; and
Case doctrines 3. By proper acts and legal formalities
Possession, to constitute the foundation of established for acquiring such right of
a prescriptive right, must be possession possession.
under a claim of title, that is, it must be The modes of acquiring ownership can be
adverse. (Bogo-Medellin v CA) seen in Article 712.
An acknowledgment of the easement is an
admission that the property belongs to Material occupation or exercise of right
another. It gives the holder of the 1. With respect to things the law requires
easement an incorporeal interest on the material occupation as one of the modes
land but grants no title thereto. (Bogo v of acquiring possession.
CA) 2. With respect to rights since rights are
Mere material possession of land is not intangible and cannot logically be
adverse possession as against the owner occupied, what is acquired is the exercise
and is insufficient to vest title, unless such of a right. For example, possession of a
possession is accompanied by the intent servitude of way, which is a right, is
to possess as an owner. (Bogo v CA) acquired by the exercise of the right (by
passing over the servient land)

Art 530 Only things and rights which are Material occupation by delivery
susceptible of being appropriated may be The material occupation of a thing as a
the object of possession. means of acquiring possession may take
place by actual or constructive delivery.
Object of possession Constructive delivery includes:
To be the object of possession, the thing or 1. Tradicion brevi manu which takes
right must be susceptible of being place when one already in possession
appropriated. of a thing by a title other than
There are more things susceptible of ownership continues to possess the
appropriation than there are things within same under a new title, that of
the commerce of men (i.e. those that can ownership.
be acquired by prescription). 2. Tradicion constitutum possessorium
o With respect to res nullius which happens when the owner
(property without owner), they continues in possession of the
can be possessed because theya property alienated not as owner but in
re capable of being appropriated some other capacity, such as that of
but hey cannot be acquired by lessee, pledgee, or depositary.
prescription which presupposes
prior ownership in another. For as Subject of the action of will
long as a thing is res nullius, it is The second method of acquisition is so
not within the commerce of men. broad in scope that it practically covers all
o Property of public dominion means of acquiring possession.
cannot also be the object of What the law contemplates is a distinct
prescription. The same is true of cause of acquiring possession and not
common things but both may be merely an effect.
the object of possession. It refers more to the right of possession
than to possession as a fact.
Examples of which are these kinds of
CHAPTER 2 constructive delivery:
1. Tradicion longa manu, which is
ACQUISITION OF POSSESSION effected by the mere consent or
agreement of the parties, as when the
Art. 531. Possession is acquired by the vendor merely points to the thing sold
material occupation of a thing or the
exercise of a right, or by the fact that it is
40
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

2. Tradicion simbolica, which is effected

by delivering an object such as a key By whom possession acquired
where the thing sold is stored or kept Possession may be acquired:
1. Personally or by the same person who
Proper acts and legal formalities is to enjoy it;
This last method of acquiring possession 2. Thru an authorized person or by his
refers to acquisition by virtue of a just title legal representative or by his agent,
such as when property is transmitted by and
succession, donation, contract, or 3. Thru an unauthorized person or by
execution of a public instrument, or when any person without any power or
possession is given by the sheriff to the authority whatever.
highest bidder at a public auction, or
pursuant to a writ of execution. Acquisition of possession through another
Unless there is a stipulation to the Possession acquired by a person
contrary, the execution of a sale thru a personally or thru another may be
public instrument shall be equivalent to the exercised by him in his own name or in
delivery of the thing. But there is no that of another. But minors and other
delivery notwithstanding the execution of incapacitated persons need the assistance
the instrument, where the purchaser of their legal representatives to exercise
cannot have the enjoyment and make use the rights arising from possession.
of the thing sold because such enjoyment If a person authorized to acquired
and use are opposed or prevented by possession for another acted beyond his
another. powers, the principal is not bound unless
Under Article 538, possession as a fact the latter ratifies the act of acquisition.
cannot be recognized at the same time in The exception is when a person voluntarily
two different personalities except in the manages the property or business of
cases of co-possession another. In such case, the strangers
A sale with pacto de retro transfers the (gestors) possession takes effect even
legal title to the vendee, and in the without ratification by the owner of the
absence of an agreement to the contrary, property or business.
carries with it the right to the possession of
the property sold. Case doctrines

Case doctrines Art. 533. The possession of hereditary

Possession alone is not sufficient to property is deemed transmitted to the heir
acquire title to alienable lands of the public without interruption and from the moment
domain because the law requires of the death of the decedent, in case the
possession AND occupation. inheritance is accepted.
Possession is broader than occupation One who validly renounces an
because it includes constructive inheritance is deemed never to have
possession. When the lad adds the word possessed the same. (440)
occupation, it seeks to delimit the all
encompassing effect of constructive Acquisition of possession through succession
possession. Ones possession must not be The rights to the succession are
a mere fiction. Acutla possession of a land transmitted from the moment of the death
consists in the manifestation of acts of of the decedent.
dominion over it of such a nature as a From that moment, each of his heirs
party would naturally exercise over his own becomes the undivided owner of the whole
property. (Ong v Republic) estate left with respect to that portion
Possession cannot be acquired through which might be adjudicated to him.
force or violence. To all intents and The inheritance may be accepted or
purposes, a possessor, even if physically repudiated.
ousted, is still deemed the legal possessor. There is no doubt that an heir can sell
(Cequena v Bolante) whatever right, interest or participation he
may have in the property under
Art. 532. Possession may be acquired by administration, subject to the result of said
the same person who is to enjoy it, by his administration.
legal representative, by his agent, or by any In case the inheritance is accepted, the
person without any power whatever: but in possession of the hereditary property is
the last case, the possession shall not be deemed transmitted by operation of law to
considered as acquired until the person in the heir without interruption and from the
whose name the act of possession was moment of death of the decedent.
executed has ratified the same, without In this inheritance is validly renounced, the
prejudice to the juridical consequences of heir is deemed never to have possessed
negotiorum gestio in a proper case. (439a) the same.

41
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

See book for examples. Recourse to the courts

Every possessor has a right to be
Art. 534. On who succeeds by hereditary respected in his possession. The lawful
title shall not suffer the consequences of possessor may use such force as may be
the wrongful possession of the decedent, if reasonably necessary to repel or prevent
it is not shown that he was aware of the invasion or usurpation of his property.
flaws affecting it; but the effects of This article applies to one who believes
possession in good faith shall not benefit himself the owner of real property. If he
him except from the date of the death of the takes justice into his own hands, he is a
decedent. (442) mere intruder; and he can be compelled to
return the property in an action for forcible
Effects of bad faith of decedent on heir entry and must suffer the necessary and
If the decedent was in bad faith, the heir natural consequences of his lawlessness.
shall not suffer the consequences of the A party who can prove prior possession,
wrongful possession of the latter because whatever may be the character of the
bad faith is personal to the decedent and possession, has the security that entitles
is not deemed transmitted to the heirs. him to recover such possession or to
The heir suffers the consequences of such remain on the property even against the
possession only from the moment he owner himself until he is lawfully ejected by
becomes aware of the flaws affecting the accion publiciana or accion reivindicatoria.
decedents title.
See book again for examples. Art. 537. Acts merely tolerated, and those
executed clandestinely and without the
Case doctrines knowledge of the possessor of a thing, or
A possessor in bad faith should not by violence, do not affect possession. (444)
prejudice his successors-in-interest. Bad
faith is personal and intransmissible. Acts which do not give rise to possession
(Escritor v IAC) The acts mentioned do not affect
Art. 535. Minors and incapacitated persons possession, i.e. the person in possession
may acquire the possession of things; but does not lose the same nor does the
they need the assistance of their legal person who results to them acquire it. In
representatives in order to exercise the other words, the true possessor is deemed
rights which from the possession arise in to have enjoyed uninterrupted possession.
their favor. (443) o Force or intimidation as long as
there is a possessor who objects
Acquisition and exercise of rights of possession thereto, such as by suit of forcible
by minors and incapacitated persons entry. The rule does not apply if
The persons referred to in the provision the possessor makes no
are unemancipated minors and other objection, withdraws his objection
persons who have no capacity to act like or takes no action whatsoever
spendthrifts, deaf-mutes who cannot read after initially objecting to the
and write, those under civil interdiction, deprivation.
etc. o Acts executed clandestinely and
Things here are limited to corporeal things without the knowledge of the
only. possessor which mean that the
This article refers principally but not acts are not public and unknown
exclusively to material occupation. to the possessor or owner.
o Acts merely tolerated which do
Incapacitated persons may acquire
not refer to all kinds of tolerance
property or rights by prescription either
on the part of the owner or
personally or through their parents,
possessor in view of the use of
guardians or legal reps. Once possession
the word merely; it means
of a thing is acquired by such persons,
permission, express or tacit, by
there is born the right of possession. In the
virtue of which the acts of
exercise of this right, they need the
possession are performed.
assistance of their legal reps.
Hence, it is simply a question of
whether permission was given or
Art. 536. In no case may possession be
not.
acquired through force or intimidation as
long as there is a possessor who objects Possession of another by mere tolerance
thereto. He who believes that he has an is not adverse and no matter how long
action or a right to deprive another of the continued, cannot ripen to ownership by
holding of a thing, must invoke the aid of prescription.
the competent court, if the holder should The mere silence or failure to take any
refuse to deliver the thing. (441a) action will not be construed as
abandonment of rights on the part of the

42
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

real possessor. It is, of course, for the CHAPTER 3

courts to decide whether there has been EFFECTS OF POSSESSION
an abandonment or not.
Possession by tolerance is lawful but Art 539 Every possessor has a right to be
becomes illegal when, upon demand to respected in his possession and should he
vacate by the legal owner, the possessor be disturbed therein he shall be protected in
refuses to comply with such demand. or restored to said possession by the
means established by the laws and the
Art. 538. Possession as a fact cannot be Rules of Court.
recognized at the same time in two different A possessor deprived of his
personalities except in the cases of co- possession through forcible entry may
possession. Should a question arise within ten days from the filing of the
regarding the fact of possession, the complaint present a motion to secure from
present possessor shall be preferred; if the competent court, in the action for
there are two possessors, the one longer in forcible entry, a writ of preliminary
possession; if the dates of the possession mandatory injunction to restore him in his
are the same, the one who presents a title; possession. The court shall decide the
and if all these conditions are equal, the motion within thirty days from the filing
thing shall be placed in judicial deposit thereof.
pending determination of its possession or
ownership through proper proceedings. Rights of every possessor
(445)
Every possessor, whether in the concept of
Possession as a fact at the same time in two owner of in the concept of holder, is given the
different personsalities following rights:
The word personalities is not
synonymous to persons. For example, in 1. Right to be respected in his possession;
co-ownership, there are two or more 2. Right to be protected in or restored to said
persons, but there is only one personality. possession by legal means should he be
Possession as a fact may exist at the disturbed therein; and
same time in two or more distinct 3. Right to secure from a competent court in
personalities, but as a general rule, the law an action for forcible entry the proper writ
will recognize only one as the actual or to restore him in his possession (Art 428)
real possessor.
The exception is provided in the cases of The mere possession of a thing is
co-possession, such as co-ownership, sufficient to insure respect to the
where the property is possessed at the possessor while no other person appears
same time in common by the co-owners to show and prove a better right.
also; and possession where the property is To all intents and purposes, a possessor
possessed at the same time by two even if physically ousted as through force
persons, one in the concept of owner and and violence, is still deemed the legal
the other, in the concept of holder. possessor.
In co-possession, there is no conflict of
interests of claims among the parties. The fact, however, that a person was never in
prior physical possession of a land is of no
Preference of possession moment where he has a Torrens Title over the
Article 538 applies whether the property is property as prior physical possession is
real or personal. In case a dispute arises necessary only in forcible entry cases.
regarding the fact of possession, the order
of preference is as follows: Reasons for protection
1. The present or actual possessor shall 1. To aid criminal law (by preserving the
be preferred peace. Order is best secured by protecting
2. If there are two possessors, the longer a possessor and leaving the true owner to
in possession; seek his remedy in a court of law)
3. If the dates of possession are the 2. As part of the law of tort (these rights of
same, the possessor with a title; i.e. action are given in respect of the
right or document evidencing his right immediate and present violation of the
to support his possession; and rights of the possessor independently of
4. If all the above are equal, the fact of his rights of property)
possession shall be judicially 3. As part of the law of property (law does not
determined, and in the meantime, the always known that the possession in
thing shall be placed in judicial question is unlawful. It would be unjust to
deposit. cast on every man whose possession is
disturbed the burden of proving a flawless
title)

43
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Remedies of persons deprived of possession o Judgment rendered in an action

(see discussions in Art 428) for forcible entry shall not bar an
1. forcible entry or unlawful detainer action between the same parties
2. accion publiciana respecting the title to the land or
3. accion reivindicatoria building
4. replevin or manual delivery of personal o The court has competence to
property resolve the issue of ownership
but only to determine the issue of
In forcible entry and unlawful detainer priority of possession, as its
cases, subject to some exceptions, the decision does not bind the title or
immediate execution of the judgment in affect the ownership of the
favor of the plaintiff is a matter of right and property involved (any
mandatory. pronouncement on ownership is
Considering that the only issue in provisional)
ejectment is that of rightful possession, The purpose of the law is to protect the
damages that could be recovered are person who has actual possession
those which the plaintiff could have The plaintiff in an action for forcible entry
sustained as a mere possessor, or those and detainer cannot succeed when it
caused by the loss of the use and appears that, as between himself and the
occupation of the property, and not the defendant, the latter had possession
damages which he may have suffered but antedating his own; and to ascertain this, it
which have no direct relation to his loss of is proper to look on to the situation as it
material possession. existed before the first act of spoliation
occurred
Issuance of a writ of preliminary mandatory Legal right of prior possessor is not an
injunction issue
In forcible entry actions, the plaintiff must o If the plaintiff can prove prior
present within ten days from the filing of possession, he may recover
the complaint a motion to secure from the possession even against the
competent court, a writ of preliminary owner himself.
mandatory injunction to restore him in his o If he cant prove prior
possession possession, he has no right of
In unlawful detainer cases where an action even if he should be the
appeal is taken, the motion shall be filed owner himself.
within ten days from the time the appeal is In case of controverted right, the law
perfected, if the high court is satisfied that requires the parties to preserve the status
the lessees appeal is frivolous or dilatory, quo until one or the other of them sees fit
or the lessors appeal is prima facie to invoke the decision of a court upon the
meritorious. question of possession and/or possession
In an appeal from a lower court in an A forcible entry or unlawful detainer is not
ejectment case, the issue of ownership suspended, abated, barred or affected by
should not be delved into, for an ejectment actions filed in the RTC which do not
action lies even against the owner of a involve physical or de facto possession
property.
Conditions under which action for forcible entry
Prior peaceful possession of plaintiff required in will lie
forcible entry action Wrongful entrance by one not in
Where a dispute over possession arises possession
between two persons, the person first o The trespasser does not have to
having actual possession, as between institute a state of war. The act of
them, is the one who is entitled to maintain going on the property and
the action for forcible entry. excluding the lawful possessor
The main issue is possession de facto, therefrom necessarily implies the
independently of any claim of ownership or exertion of force over the
possession de jure that either party may property, and this is all that is
set forth in his pleadings, and an appeal necessary. Under the law,
does not operate to change the nature of entering upon the premises by
the original action strategy or stealth is equally as
Even a mere applicant of public land who obnoxious as entering by force.
is in occupation and in peaceful o The words by force, intimidation,
possession thereof can file an action for threat, etc include every situation
forcible entry or condition under which one
Question of ownership is unessential and person can wrongfully enter upon
should be raised by the defendant in an real property to exclude another,
appropriate action

44
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

who has prior possession indicia, which shows the will or desire of a
therefrom. (Banes case) person to possess with claim of ownership
Wrongful exclusion of prior possessor or to obtain title to the land or property
o The foundation of the action is
really the forcible exclusion of the Case doctrine
original possessor by a person In order than an action for recovery of
who has entered without right. possession may prosper, it is
indispensable that he who brings the
Art 540 Only the possession acquired and action fully proves not only his ownership
enjoyed in the concept of owner can serve but also the identity of the property
as a title for acquiring dominion. claimed, by describing the location, area
and boundaries thereof. Insufficient
Possession as basis for acquiring ownership identification of the portion of land claimed
Possession acquired and enjoyed in the in absolute ownership cannot ripen into
concept of owner may ripen into ownership by ownership. (Serina v Caballero)
means of prescription.
Art 541 A possessor in the concept of
1. As holder owner has in his favor the legal
Cannot be the basis of prescription presumption that he possesses with a just
So with possession acquired through title and he cannot be obliged to show or
force or intimidation (Art 536), merely prove it.
tolerated or which is not public and is
unknown to the present possessor Possessor in concept of owner presumed with
(Art 537) just title
2. As equitable mortgage Just title does not always mean a
Constructive possession over the land document or a written instrument
cannot ripen into ownership as it Title is that upon which ownership is based
cannot be said to have been acquired Actual or constructive possession under
and enjoyed in the concept of owner claim of ownership raises the disputable
3. As claimant under a possessory presumption of ownership. In other words,
information title (meh) a possession is presumed ownership until
4. As claimant under a certificate of title the contrary is shown.
Mere possession cannot defeat the A possessor is presumed to have a just
title of a holder of a registered Torrens title, and he cannot be obliged to show or
title to real property prove it.
But the true owner of the property may o Reason? To protect the owner
be defeated by an innocent purchaser from inconvenience, otherwise,
for value notwithstanding the fraud he will always have to carry his
employed by the seller (forger) in titles under his arms to show
securing his title them to whoever who wants to
Generally, a forged deed is a nullity see it
and conveys no title. However, there NB: Presumption of just title does not
are instances when such a document apply in acquisitive prescription. Adverse
may become the root of a valid title. possessor must prove his just title.
As when the certificate of title was
already transferred from the name of Burden of proving just title
the true owner to the forger, and while The onus probandi is on the plaintiff who
it remained that way, the land was seeks the recovery of property
subsequently sold to an innocent A person who is not, in fact, in possession
purchaser for value (land titles!) cannot acquire a prescriptive right to a
5. As possessor of forest land (not possible!) land by the mere assertion of a right
therein. Where the possessor is really the
Mere tax declarations of ownership do not owner, the fact that a third person
vest or prove ownership of the property in questions his right does not impair said
the declarant nor are even sufficient to right.
sustain a claim for possession over a land, An owner and possessor whose title is true
in the absence of actual possession of the and valid cannot be required to show that
same. his possession is or has been adverse as
They are merely an indicum of a claim of against a new claimant who has neither
ownership title nor possession.
Nevertheless, they are good indicia of
possession in the concept of owner What are the different kinds of title?
Payment of realty tax coupled with actual 1. Titulo verdadero y valido or true and valid
possession in the concept of owner is one This is the title presumed in this
of the most persuasive and positive provision
45
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Sufficient to transfer ownership 3.

That the evidence thereon must be
without need of possessing the clear and convincing (Aguirre v CA)
property for the period necessary for Art 542 The possession of real property
acquiring title by prescription presumes that of movables therein, so long
2. Titulo justo or just title as it is not shown or proved that they
For the purposes of prescription, there should be excluded.
is just title
o When the adverse claimant came Possession of real property presumed to
into possession of the property include movables
through one of the modes Article 542 refers to material possession
recognized by law for the only of things, not rights
acquisition of ownership or other Possession may be in the concept of
real rights, owner, of holder, in ones own name or in
o but the grantor was not the owner anothers, or in good faith or in bad faith
or could not transmit any right It is normal that movables which are found
For prescription, just title must be in an immovable belong to the possessor
proved, it is never presumed. of the latter
It must be remembered that the If the building is occupied by the lessee,
burden of proving the status of a we can suppose the same with respect to
purchaser in good faith lies upon him him because in this case, the possessor is
who asserts that status. It is not the lessee
sufficient to invoke the ordinary Again, this is a mere presumption.
presumption of good faith, that is, that
everyone is presumed to have acted Art 543 Each one of the participants of a
in good faith, since the good faith that thing possessed in common shall be
is here essential is integral with the deemed to have exclusively possessed the
very status that must be established. part which may be allotted to him upon the
(Aguirre v CA) division thereof, for the entire period during
3. Titulo colorado or colorable title which the co-possession lasted.
One which a person has when he Interruption in the possession of the whole
buys a thing in good faith, from one or a part of a thing possessed in common
who is not the owner but whom he shall be to the prejudice of all the
believes to be the owner possessors. However, in case of civil
The just title required for acquisitive interruption, the Rules of Court shall apply.
prescription is titulo Colorado
4. Titulo putativo or putative title Exclusive possession of previous co-owner
One which a person believes he has deemed continuous
title but in fact he has not because Article 543 speaks of co-possession of a
there was no mode of acquiring thing, not of co-ownership
ownership Nevertheless, its principle is applicable to
As when one is in possession of a co-possession of a real right
thing in the mistaken belief that it had Co-possession can be over a thing or a
been bequeathed to him right
All participants of a thing possessed in
Whats the difference between titulo Colorado common constitute only one personality
and titulo verdadero y valido? In Colorado, and the personality ceases when there is a
there is a need for prescription to transfer partition.
ownership. In true and valid title, there is no From that moment of cessation, the
need for prescription, ownership is transferred personality of each participant begins.
once the mode of transfer has been perfected. Each co-possessor is deemed (not merely
(Be it by sale, donation, succession, etc). presumed!) to have possessed exclusively
and continuously during the period of co-
possession the part assigned to him in the
Case doctrine division.
In order that a co-owners possession may The effects of the division retroact to the
be deemed adverse to the cestui que trusti commencement of the co-possession.
or the other co-owners, the following But the division shall be without prejudice
elements must concur: to the rights of creditors.
1. That he has perfomrmed unequivocal
acts of repudiation amounting to an Harry, Ron, and Hermione have been co-
ouster of the beneficiary or the other possessors in the concept of owners of a 15
co-owners hectare parcel of land until they divided the
2. That such positive acts of repudiation property equally on the 8th year. If on the 4th
have been made known to the year after the division, Draco claims ownership
beneficiary or the other co-owners of the portion allotted to Harry, Harry can assert
46
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

title by acquisitive prescription through Natural and industrial fruits are

possession for 10 years, for he is deemed to considered received from the time they are
have possessed his portion exclusively and gathered or severed.
continuously for a period of 12 years. Civil fruits are deemed to accrue
daily and belong to the possessor in good
Interruption in possession of the thing faith in that proportion.
Both the benefits and the prejudices that
might have taken place during the co- Art 545 If at the time the good faith ceases,
possession shall attach to each of the co- there should be any natural or industrial
participants fruits, the possessor shall have a right to a
Prescription obtained by a co-possessor part of the expenses of cultivation, and to a
shall benefit the others part of the net harvest, both in proportion to
Interruption in the possession of the whole the time of possession.
or part of a thing shall be to the prejudice The charges shall be divided on the
of all the possessors. same basis by the two possessors.
The owner of the thing may, should
Possession is interrupted for purposes of
he so desire, give the possessor in good
prescription either
faith the right to finish the cultivation and
o Naturally (when through any
gathering of the growing fruits, as an
cause it should cease for more indemnity for his part of the expenses of
than 1 year) cultivation and the net proceeds; the
o Civilly (when the interruption is possessor in good faith who for any reason
produced by judicial summons to whatever should refuse to accept this
the possessor) concession, shall lose the right to be
In civil interruption, only indemnified in any other manner.
those possessors served
with judicial summons The fruits of a thing generally belong to the
are affected. owner (Art 441) but a possessor in good
For civil interruption to faith is entitled to the fruits received until
take place, the good faith ceases and bad faith begins.
possessor must have Legal interruption of possession in good
received judicial faith takes place upon service of judicial
summons. summons to the possessor.
When will summons not o All fruits that the possessor may
be deemed to have been receive from the time that he is
issued and shall not give summoned, or when he answers
rise to interruption? the complaint, must be delivered
1. If it should be void or paid by him to the owner or
for lack of legal lawful possessor.
solemnities, or
Whenever there is cessation of good faith
2. If the plaintiff should
in the eyes of the law, whether by reason
desist from the
of the filing of a complaint or not,
complaint or should
possession in good faith should be
all the proceedings
deemed legally interrupted from such
to lapse, or
cessation and not merely from the service
3. If the possessor
of judicial summons.
should be absolved
from the complaint. When the owner or possessor with a better
A notice for adverse right comes along, when he becomes
aware that what he had taken for granted
claim does NOT
is at least doubtful, and when he learns the
interrupt prescription
grounds in support of the adverse claim,
(Heirs of Arzadon-
good faith ceases.
Crisologo v Ranon)
Possessor in bad faith is not entitled to the
Interruption must refer to the whole thing
fruits. He has the duty to reimburse the
itself or part of it and not to a part or right
fruits received including that which the
of a co-possessor.
legitimate possessor could have received.
In a co-possession, there is only one thing
The right of the possessor in good faith is
and many possessors. If the right of a co-
limited to the fruits, referring to natural,
possessor is contested, he alone shall be
industrial and civil fruits (Art 441). Other
prejudiced.
things (building) belong to the owner of the
With respect to the thing, the prejudice
land.
shall be against all.
When fruits considered received
Art 544 A possessor in good faith is entitled 1. For natural and industrial fruits from the
to the fruits received before the possession time they are gathered or severed. Fruits
is legally interrupted.
47
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

gathered before legal interruption belong expenses for

to the possessor in good faith. cultivation
2. For civil fruits their accrual, not their Second: (because by
actual receipt, shall determine when they To allow right of
are considered received at the time the possessor accession,
good faith is legally interrupted. They are to stay in all fruits
deemed to accrue daily and belong to the possessio belong to
possessor in good faith in that proportion. n until owner
after all without need
Kinds of Fruits Possesso Possessor in fruits are to pay
r in Good Bad Faith gathered indemnity)
Faith (which
1. Civil fruits Entitled to Not entitled shall Must pay
fruits from to fruits. serve as damages as
start of the reasonable
possessio Must pay indemnity rent for the
n until damages as for term of
legal rental from expenses) possession
interruptio time
n possession
started until Proportionate division of fruits and expenses
possession Art 545 does not apply when the
is finally possessor is in bad faith, the fruits are civil,
defeated or the fruits are natural or industrial but
2. Natural/Indust they have been gathered or severed when
rial Fruits good faith ceases
A possessor in bad faith has no right
a. Gathered Right to Must whatsoever to the fruits, gathered or
retain account for pending, except only necessary expenses
fruits fruits and for gathered fruit (Art 443, 449). Since civil
return value fruits are produced day by day, Art 545
of: does not apply to them.
fruits In the case of fruits already gathered at
actually the time good faith ceases, it is Art 544
received, that is applicable.
and fruits If there are pending natural and industrial
which the
fruits at the time good faith ceases, the two
legal
possessors shall share in the expense of
possessor
cultivation and the charges (expenses
could have
made not on the property itself but on
received
account of it, such as taxes, interest on
with due
mortgages) in proportion to the time of
care and
possession.
diligence.
They will also share on the fruits in
b. Pending Must pay proportion to the time of possession as
damages as well.
Owner reasonable What if there are no fruits or the fruits are
has 2 rent for the less than expenses?
options: term of o If there is no net harvest because
possession. there are no fruits or the fruits are
First: Pro- less than the expenses, art 545
rating But entitled wont apply. If the fruits are
(based on to necessary merely insufficient, the same
period of expenses for should be divided in proportion to
possessio preservation, their respective expenses.
n) cultivation, o No fruits? Each should bear his
between and own expenses subject to the right
possessor gathering of of the possessor in good faith to
and fruits. be refunded for necessary
owner of: expenses under Art 546, unless
expenses, the owner of new possessor
net No rights, exercises his option referred to
harvest not even above.
and reimbursem
charges ent of

48
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Art 546 Necessary expenses shall be expenses options:

refunded to every possessor; but only the
possessor in good faith may retain the thing Option 1:
until he has reimbursed therefore. reimburseme
Useful expenses shall be refunded nt of either
only to the possessor in good faith with the (a) amount
same retention, the person who has spent or (b)
defeated him in the possession having the increase in
option of refunding the amount of the value with
expenses or of paying the increase in value right of
which the thing may have acquired by retention with
reason thereof. full payment.

Art 547 If the useful improvements can be Option 2: To

removed without damage to the principal allow
thing, the possessor in good faith may possessor to
remove them, unless the person who remove
recovers the possession exercises the provided no
option under paragraph 2 of the preceding substantial
article. damage or
injury is
Art 548 Expenses for pure luxury or mere caused
pleasure shall not be refunded to the Luxurious Owner has 2 Owner has 2
possessor in good faith; but he may remove expenses options: options:
the ornaments with which he has
embellished the principal thing if it suffers Option 1: to Option 1: to
no injury thereby, and if his successor in allow allow
the possession does not prefer to refund possessor to possessor to
the amount expended. remove remove
ornaments if ornaments if
Art 549 The possessor in bad faith shall the principal the principal
reimburse the fruits received and those suffers no suffers no
which the legitimate possessor could have injury injury
received, and shall have a right only to the
expenses mentioned in paragraph 1 of Option 2: to Option 2: to
Article 546 and in Article 443. The expenses retain the retain the
incurred in improvements for pure luxury or ornament by ornament by
mere pleasure shall not be refunded to the refunding the refunding
possessor in bad faith, but he may remove amount spent the value of
the objects for which such expenses have for the the
been incurred, provided that the thing ornament ornament at
suffers no injury thereby, and that the lawful the time
possessor does not prefer to retain them by owner enters
paying the value they may have at the time into
he enters into possession. possession
(which
Expenses Possessor in Possessor in means
Good Faith Bad Faith depreciated
Necessary Entitled to Entitled to value)
Expenses reimburseme reimbursem Deterioration/l No liability Always liable
nt ent oss unless due to whether
Right of No right of fraudulent before or
retention retention; intent or after service
pending full must vacate negligence of judicial
reimburseme property after service summons,
nts (recourse is of judicial for any
to file summons cause, even
collection fortuitous
case) event.
Liable for
damages as
reasonable Necessary expenses are made for the
rent for preservation of the thing of those which
period of seek to prevent the waste, deterioration, or
possession loss of the thing; or those without which
Useful Owner has 2 No rights the thing would deteriorate or be lost.

49
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Useful expenses are expenses which add improvements which have ceased to exist
value to a thing, or augment its income. at the time he takes possession of the thing.
Luxurious expenses are expenses not (458)
necessary for the preservation of a thing
nor do they increase its productivity Improvements which have ceased to exist
although they add value to the thing, but The improvements referred to were
are incurred merely to embellish the thing enjoyed by the possessor alone.
and for the convenience or enjoyment of Having ceased to exist, the owner or lawful
particular possessors. possessor who came too late cannot
benefit from them. But he is liable for
necessary expenses even if the thing for
Case doctrine which they were incurred no longer exists.
A possessor in bad faith is entitled to be Necessary expenses are not considered
reimbursed for her expenses in restoring a improvements.
house to its original condition after it had
been partly damaged by fire, because Art. 554. A present possessor who shows
such expenses are necessary, and under his possession at some previous time, is
546, are to be refunded even to presumed to have held possession also
possessors in bad faith. during the intermediate period, in the
A builder in bad faith, under 449, is not absence of proof to the contrary. (459)
entitled to reimbursement. But 449 is a
rule of accession, which is not applicable Presumption of possession during intervening
where a new house was not built on the period
land of another but only repairs were made This article contemplates a situation where
on a house that had been partly destroyed a present possessor is able to prove his
by fire. This latter case comes under 546 possession of a property at a prior period
which provides for the refund of necessary but not his possession during the
expenses to every possessor. (Cosio v intervening period.
Palileo) He is presumed to have possessed the
property continuously without interruption,
Art. 550. The costs of litigation over the unless the contrary is proved.
property shall be borne by every possessor. The presumption is useful for purposes of
(n) prescription.
Art. 551. Improvements caused by nature or Art. 555. A possessor may lose his
time shall always insure to the benefit of the possession:
person who has succeeded in recovering 1. By the abandonment of the thing;
possession. (456) 2. By an assignment made to another
either by onerous or gratuitous
Improvements caused by nature or time title;
Article 551 covers all the natural 3. By the destruction or total loss of
accessions mentioned in Articles 457 to the thing, or because it goes out of
465 which must follow the ownership of the commerce;
principal thing, and generally, all 4. By the possession of another,
improvements that are not due to the will subject to the provisions of Article
of the possessor. 537, if the new possession has
The former possessor got the benefits lasted longer than one year. But the
from the property during his possession. It real right of possession is not lost
is but just that the improvements till after the lapse of ten years.
mentioned which take place after the (460a)
possession is recovered inure to the owner
or lawful possessor. Hence, he should not Modes of losing possession
pay for them. This provision applies to both real and
personal property except no. 4 which
Art. 552. A possessor in good faith shall not obviously refers only to personal property
be liable for the deterioration or loss of the (obvious raw eh, sabi ni de Leon. Yabang
thing possessed, except in cases in which it naman niya). The next article is expressly
is proved that he has acted with fraudulent made applicable only to movables.
intent or negligence, after the judicial
summons. What is abandonment?
A possessor in bad faith shall be Abandonment is the voluntary renunciation
liable for deterioration or loss in every case, of all rights which a person has over a
even if caused by a fortuitous event. (457a) thing thereby allowing a third person to
acquire ownership or possession thereof
Art. 553. One who recovers possession by means of occupancy.
shall not be obliged to pay for
50
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

The abandoner may be the owner or a Possession by mere tolerance even for
mere possessor but the latter obviously over a year does not affect possession de
cannot abandon ownership which belongs facto.
to another. (obviously raw!) After 10 years, the possessor or owner
Since abandonment involves the may bring an accion publiciana or
renunciation of a property right, the reivindicatoria to recover possession de
abandoner must have a right to the thing jure unless he is barred by prescription.
possessed and the legal capacity to
renounce it. Recovery by lawful owner or possessor
An owner of property cannot be held to Possession may also be lost when it is
have abandoned the same until at least he recovered from the person in possession
has some knowledge of the loss of its by the lawful owner in a reivindicatory
possession or of the thing, and a thing action or by the lawful possessor in an
cannot be considered abandoned under action to recover the better right of
the law until the spes recuperandi (hope of possession.
recovery) is gone and the animus
revertendi (intention to return) is finally Art. 556. The possession of movables is not
given up. deemed lost so long as they remain under
By voluntary abandonment, a thing the control of the possessor, even though
becomes without a owner or possessor for the time being he may not know their
and is converted into res nullius and may whereabouts. (461)
thus be acquired by a third person by
occupation. Loss of possession of movables
Abandonment which converts the thing The possession of movables shall be
into res nullius can hardly apply to land. deemed lost when they cease to be under
Castellano v Francisco stated that the control of the possessor either becaue:
abandonment requires: o They have come into the
1. A clear and absolute intention to possession of a third person; or
renounce a right or a claim or to o Although, they have not been
abandon a right or property, and taken by another,
2. An external act by which that intention The possessor has
is expressed or carried into effect. completely no idea of
The intention to abandon implies a their whereabouts or
departure, with the avowed intent of never location (the pet rat has
returning, resuming or claiming the right been missing for
and the interest that have been sometime; or
abandoned. (Castellano v Francisco) Even if known, they
cannot be recovered,
Assignment? whether as a matter of
Assignment is understood to mean the fact (an unopened box of
complete transmission of the thing or right pastillas has been
to another by any lawful manner. dropped in a deep lake)
It may be onerous or by gratuitous title. or of law (a movable lost
The effect is that he who was the owner or by prescription).
possessor is no longer so. Possession is not lost by the mere fact that
Abandonment is always gratuitous. the possessor does not know for the time
being the precise whereabout of a specific
movable when he has not given up all
Destruction, total loss, or withdrawal from
hope of finding it (like a ring misplaced or
commerce
lost in particular vicinity). In this case, the
Destruction or total loss covers not only
possessor has not lost his legal right to the
that which is caused voluntarily or object.
intentionally but also that which is caused o He retains his juridical control of
by accident.
the thing which remains in his
A thing is lost when it perishes, or goes out patrimony.
of commerce, or disappears, etc. (Art
1189) Art. 557. The possession of immovables
and of real rights is not deemed lost, or
Possession of another for more than one year transferred for purposes of prescription to
This refers to possession de facto (as a the prejudice of third persons, except in
fact or material possession) and not de accordance with the provisions of the
jure (legal right or real right of possession) Mortgage Law and the Land Registration
After one year, the former possessor can laws. (462a)
no longer bring any action for forcible entry
or unlawful detainer.

51
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Loss of possession of immovables and real because it can be defeated by the true
rights with respect to third persons owner.
Third persons are not prejudiced except in These are the two exceptions to the
accordance with the provisions of the general rule of irrevindicability. An owner
mortgage law and the registration law. can recover in these two instances:
Against a recorded title, ordinary 1. When one has lost the movable,
prescription of ownership or real rights or
shall not take place to the prejudice of a 2. When one has been unlawfully
third person, except in virtue of another deprived.
title also recorded and the time shall begin He may recover without
to run from the recording of the latter. reimbursement. But if the thing
was sold at a public sale, the
Art. 558. Acts relating to possession, owner must reimburse the buyer.
executed or agreed to by one who These are the exceptions to the
possesses a thing belonging to another as exceptions. Even when an owner has lost
a mere holder to enjoy or keep it, in any or has been unlawfully deprived, he still
character, do not bind or prejudice the cannot recover in these instances:
owner, unless he gave said holder express 1. When the sale is made at
authority to do such acts, or ratifies them merchants stores, fairs or
subsequently. (463) markets.
2. When the owner of the movable
Possessory acts of a mere holder is, by his conduct, precluded from
The possessor referred to in this article is denying the sellers authority to
the same possessor mentioned in Article sell;
525. 3. Where the law enables the
Acts relating to possession of a mere apparent owner to dispose of the
holder do not bind or prejudice the movables as if he were the true
possessor in the concept of owner unless owner thereof
said acts were previously authorized or 4. Where the sale is sanctioned by
subsequently ratified by the latter. statutory or judicial authority
Possession may be acquired for another 5. Where the seller has a voidable
by a stranger provided there be title which has not been avoided
subsequent ratification. (Art 532) at the time of the sale to the
buyer in good faith for value and
Art. 559. The possession of movable without notice of the sellers
property acquired in good faith is defect of title (remember CLV!)
equivalent to a title. Nevertheless, one who 6. Where recovery is no longer
has lost any movable or has been possible because of prescription
unlawfully deprived thereof may recover it 7. Where the possessor becomes
from the person in possession of the same. the owner of the thing in
If the possessor of a movable lost accordance with the principle of
or which the owner has been unlawfully finders keepers
deprived, has acquired it in good faith at a
public sale, the owner cannot obtain its Case doctrines
return without reimbursing the price paid Non-payment does not void a sale. It is
therefor. (464a) perfected upon the meeting of the minds.
Hence, ownership shall pass from the
Right of possessor who acquires movable vendor to the vendee upon the actual or
claimed by another constructive delivery of the thing sold. It
If the possession of a movable property does not constitute unlawful deprivation of
who acquired in bad faith, no right thereto personal property. It is a mere voidable
is acquired by the possessor. The property sale, and unless it is avoided before the
may be recovered by the true owner or execution of the second sale, then the
possessor without reimbursement. second sale is valid. (EDCA v Santos)
If the acquisition was in good faith, here Purchaser in good faith of a chattel or
are the rules: movable property is entitled to be
o Possession in good faith of a movable respected and protected in his possession
is presumed ownership. It is as if he were the true owner thereof until a
equivalent to title. This is known as competent court rules otherwise. In the
the doctrine of irrrevindicability. No meantime, as the true owner, the
further proof is necessary. possessor in good faith cannot be
o The possessors title, however, is not compelled to surrender possession nor to
absolute. It is equivalent to title but is be required to institute an action for the
not title itself. It is merely presumptive recovery of the chattel. (Edu v Gomez)
A third party who acquired in good faith a
stolen vehicle and registered it in his own
52
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

name cannot lawfully refuse to return it to

the true owner and insist upon Art. 562. Usufruct gives a right to enjoy the
reimbursement before delivery. (Aznar v property of another with the obligation of
Yapdiangco stealing equals unlawful preserving its form and substance, unless
deprivation) the title constituting it or the law otherwise
The owner of a ring pledged to a provides. (467)
pawnshop by one to whom he has
entrusted it to be sold on commission can What is usufruct?
recover it from the pawnshop. (Dizon v 1. A right to enjoy the property of another with
Suntay) the obligation of preserving its form and
substance
2. Right to enjoy the property of another
Art. 560. Wild animals are possessed only temporarily, including both the jus utendi
while they are under one's control; and jus fruendi, with the owner retaining
domesticated or tamed animals are the jus disponendi
considered domestic or tame if they retain 3. In essence, usufruct is nothing else but
the habit of returning to the premises of the simply allowing one to enjoy anothers
possessor. (465) propery

Possession of animals What are the characteristics of usufruct?

Animals may be: 1. It is a real right of use and enjoyment,
1. Wild or animals living in a state of (whether registered or not in the Registry
nature independently of and without of Property. Registering will affect and bind
the aid and care of man (great white third persons)
shark, ornate wobbegong, brazilian 2. Of Temporary duration;
slug) 3. Transmissible; and
2. Domesticated or tamed, or animals 4. May be constituted on real or personal
which are wild or savage by nature but property, consumable or non-consumable,
have been subdued and made use of tangible or intangible, the ownership of
by man and become accustomed to which is vested in another
live in a tamed condition (tiger ni
Chavit) A person cannot create a usufruct over his
3. Domestic or tame, or any of the own property and at the same time retain
various animals which live and are ownership of the same
born and reared, under the control A usufruct is essentially jus in re aliena,
and care of man, lacking the instinct to and to be a usufructuary of ones own
roam freely (dog, cat, carabao, cow) property is in law a contradiction in terms
Wild animals may be the object of hunting. and a conceptual absurdity
They are possessed only if they are under The essential requisite of usufruct is the
ones control. Possession of wild animals right to enjoy the property of another
are lost when they regain their freedom or The usufructuary is entitled to all the fruits
come under anothers control. of the property with the obligation to
Domesticated animals are possessed if preserve its form and substance
they habitually return to the premises of However, the obligation of the usufructuary
the possessor. to preserve is only accidental for the law or
the will of the parties may modify or even
Art. 561. One who recovers, according to eliminate it
law, possession unjustly lost, shall be Two classifications based on whether or
deemed for all purposes which may not impairment of object is allowed:
redound to his benefit, to have enjoyed it 1. Normal, perfect or regular invovlves
without interruption. (466) non-consumable things which the
usufructuary can enjoy without altering
This article applies to both possession in the form or substance, through they
good faith as well as to possession in bad may detoriorate or diminish by time or
faith, but only if beneficial to the possessor by use
(like for purposes of prescription) 2. Abnormal, imperfect, irregular or
The recovery of possession must be quasi-usufruct involves things which
according to law through legal means; would be useless to the usufructuary
otherwise, the benefit of continuous and unless they are consumed or
uninterrupted possession during the expended, such as money, grain,
intervening period cannot be invoked. liquors, etc

TITLE VI - USUFRUCT Usufruct Lease

Nature of Real Personal
CHAPTER ONE: USUFRUCT IN right
GENERAL
53
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Creator of Owner of May not be b. With a term (may be

right agent the owner suspensive or resolutory)
Origin May be by law, By contract c. Conditional (may be
by contract, by suspensive or resolutory)
will of testator, 4. As to subject matter
or by a. Over things (tangible
prescription property)
Extent of All the fruits Certain uses b. Over rights (intangible
enjoyment and all the only (those property which are not
uses and stipulated) intransmissible)
benefits of the
entire property Art. 565. The rights and obligations of the
(generally) usufructuary shall be those provided in the
Cause More or less Active owner title constituting the usufruct; in default of
passive owner or lessor who such title, or in case it is deficient, the
who allows the makes the provisions contained in the two following
usufructuary to lessee enjoy Chapters shall be observed. (470)
enjoy the
object In case of conflict between the will of the
Repairs and Usufructuary to Lessee not person creating the usufruct and the Civil
taxes pay generally code, the former prevails.
under the
obligation to CHAPTER TWO
pay taxes or RIGHTS OF THE USUFRUCTUARY
undertake
repairs Art. 566. The usufructuary shall be entitled
to all the natural, industrial and civil fruits of
the property in usufruct. With respect to
hidden treasure which may be found on the
Art. 563. Usufruct is constituted by law, by land or tenement, he shall be considered a
the will of private persons expressed in acts stranger. (471)
inter vivos or in a last will and testament,
and by prescription. (468) Classifications of the rights of the usufructuary
Creation of usufruct 1. As to the thing and its fruits
Usufruct may e classified according to how it is a. To receive the fruits of the
created into: property in usufruct and half
1. Legal, or that created or declared by law of the hidden treasure he
2. Voluntary, or that created by will of the accidentally finds on the
parties (an act inter vivos or an act mortis property
causa) b. To enjoy any increase which
3. Mixed or that acquired by prescription the thing in usufruct may
acquire through accession
Art. 564. Usufruct may be constituted on the c. To personally enjoy the thing
whole or a part of the fruits of the thing, in in usufruct or lease it to
favor of one more persons, simultaneously another
or successively, and in every case from or d. To make on the property in
to a certain day, purely or conditionally. It usufruct such improvements
may also be constituted on a right, provided or expenses he may deem
it is not strictly personal or intransmissible. property and to remove the
(469) improvements provided no
damage is caused to the
Kinds of usufruct defined property
Usufruct may be e. To set-off the improvements
1. As to extent of object he may have made on the
a. Total (constituted on the property against any damage
whole of a thing) to the same
b. Partial (constituted only on a f. To retain the thing until he is
part of a thing) reimbursed for advances for
2. As to number of beneficiaries extraordinary expenses and
a. Simple (only one) taxes on the capital
b. Multiple (several 2. As to the usufruct itself
usufructuaries) a. To alienate (or mortgage) the
i. Simultaneous, or right of usufruct except
ii. Successive parental usufruct
3. As to effectivity or extinguishment b. In a usufruct to recover
a. Pure property or a real right, to

54
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

bring the action and to oblige similar expenses incurred by the

the owner thereof to give him usufructuary.
proper authority and The provisions of this article shall
necessary proof, and not prejudice the rights of third persons,
c. In a usufruct of part of a acquired either at the beginning or at the
common property, to termination of the usufruct. (472)
exercise all the rights
pertaining to the co-owner Right of the usufructuary to pending natural
with respect to the and industrial fruits
administration and collection This article does not apply to civil fruits.
of fruits or interests from the
property For fruits growing at the beginning of
3. As to advances and damages usufruct, they belong to the usufructuary
a. To be reimbursed for who is not bound to refund to the owner
indispensable extraordinary the expenses of cultivation and production
repairs made by him in an incurred.
amount equal to the increase o However, in case the expenses
in value which the property were incurred by innocent third
may have acquired by persons, the usufructuary under
reason of such repairs Art 443, pursuant to the last
b. To be reimbursed for taxes paragraph of Art 567, has the
on the capital advanced by obligation to pay the expenses
him, and made.
c. To be indemnified for For fruits growing at the termination of the
damages caused to him by usufruct, they belong to the owner but he
the naked owner. is bound to reimburse the usufructuary the
ordinary cultivation expenses out of the
The usufructuary is given the right to enjoy fruits received.
the property in usufruct and he is entitled Manresa opines that if at the termination of
to the fruits. The usufructuary has the right the usufruct, force majeure should prevent
to receive all the fruits except: the usufructuary from gathering the fruits,
a. where the usufruct is said fruits shall belong to him and not the
constituted only on a part of naked owner.
the fruits of a thing or
b. where there is an agreement Art. 568. If the usufructuary has leased the
to the contrary. lands or tenements given in usufruct, and
The naked owner retains and can exercise the usufruct should expire before the
all the rights as owner over the property termination of the lease, he or his heirs and
limited only by the right of enjoyment of the successors shall receive only the
usufructuary. proportionate share of the rent that must be
Products which when taken from the paid by the lessee. (473)
property diminishes its substance are not
to be treated as fruits. They form part of Art. 569. Civil fruits are deemed to accrue
the capital and belong to the naked owner, daily, and belong to the usufructuary in
and not to the usufructuary in the absence proportion to the time the usufruct may last.
of a contrary intent between the parties. (474)
The usufructuary is not entitled to any
hidden treasure because its not Lease by the usufrucutary
considered as fruits. However, as a The usufructuary may lease the property in
stranger, he is entitled to if he is the usufruct to another.
finder. If the usufrcut should expire before the
termination of the lease, the usufructuary
Art. 567. Natural or industrial fruits growing or his heirs and successors are entitled
at the time the usufruct begins, belong to only to the rents corresponding to the
the usufructuary. duration of the usufruct. The rents for the
Those growing at the time the remaining period of the lease belong to the
usufruct terminates, belong to the owner. owner.
In the preceding cases, the
usufructuary, at the beginning of the Art. 570. Whenever a usufruct is constituted
usufruct, has no obligation to refund to the on the right to receive a rent or periodical
owner any expenses incurred; but the pension, whether in money or in fruits, or in
owner shall be obliged to reimburse at the the interest on bonds or securities payable
termination of the usufruct, from the to bearer, each payment due shall be
proceeds of the growing fruits, the ordinary considered as the proceeds or fruits of
expenses of cultivation, for seed, and other such right.

55
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Whenever it consists in the when the things given in usufruct cannot

enjoyment of benefits accruing from a be used without being consumed or were
participation in any industrial or commercial appraised when delivered, the
enterprise, the date of the distribution of usufructuary may dispose of them.
which is not fixed, such benefits shall have With respect to the right of usufruct, since
the same character. the usufructuary is the owner of the right
In either case they shall be itselt, he may alienate, pledge or mortgage
distributed as civil fruits, and shall be it, even by gratuitous title.
applied in the manner prescribed in the o But the legal usufruct of the
preceding article. (475) parent over his or her
unemancipated children cannot
Usufruct constituted on certain rights be alienated, pledged, or
Every benefit or payment shall be mortgaged for the right is
considered and distributed as civil fruit of personal and intransmissible
such right. burdened as it is by important
Payment and benefits that accrue after the obligations of the parent for the
termination of the usufruct belong to the benefit of the children.
owner. o A usufruct given in consideration
The date when the benefits accrue of the person of the usufructuary
determines whether they should belong to to last during his lifetime is also
the usufructuary or to the owner. Art 570 personal, and therefore,
applies whether or not the date of intransmissible.
distribution of benefits is fixed. o As a rule, all contracts entered
into by the usufructuary shall
Case doctrine terminate upon the expiration of
A stock dividend is considered civil fruit the usufruct or earlier, except
and belongs to the usufructuary. (Bachrach rural leases which continue
v Seifert) during the agricultural year.

Case doctrine
Art. 571. The usufructuary shall have the A usufructuary of rents, as a corollary to
right to enjoy any increase which the thing the right to all the rents, to choose the
in usufruct may acquire through accession, tenant, and to fix the amount of the rent,
the servitudes established in its favor, and, necessarily has the right to choose himself
in general, all the benefits inherent therein. as the tenant, provided that the obligations
(479) he has assumed towards the owner of the
property are fulfilled. (Fabie v David)
Extent of rights of usufructuary
The usufructuary is generally entitled to all Art. 573. Whenever the usufruct includes
the benefits that the thing in usufruct can things which, without being consumed,
give including any increase by accession gradually deteriorate through wear and tear,
and servitudes established in his favor. the usufructuary shall have the right to
Reason is that usufruct covers the entire make use thereof in accordance with the
jus fruendi and jus utendi. purpose for which they are intended, and
shall not be obliged to return them at the
termination of the usufruct except in their
Art. 572. The usufructuary may personally condition at that time; but he shall be
enjoy the thing in usufruct, lease it to obliged to indemnify the owner for any
another, or alienate his right of usufruct, deterioration they may have suffered by
even by a gratuitous title; but all the reason of his fraud or negligence. (481)
contracts he may enter into as such
usufructuary shall terminate upon the Usufruct on things which gradually deteriorate
expiration of the usufruct, saving leases of This article gives an instance of abnormal
rural lands, which shall be considered as usufruct because in the enjoyment of the
subsisting during the agricultural year. (480) property the usufructuary cannot preserve
its form or substance.
Transactions by the usufructuary Here the thing gradually deteriorates
with respect to the thing in usufruct, he through wear and tear or normal use.
may lease it even without the owners The usufructuary is not responsible for the
consent but not being the owner, the deterioration due to wear and tear nor is
usufructuary cannot alienate, pledge or he required to make any repairs to restore
mortgage the thing itself. He may sell it to its formal condition. He needs only to
future crops subject to the rule that those return the thing at the termination of the
ungathered at the time when the usufruct usufruct in the condition it may be at that
terminates belong to the owner. time.

56
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

The usufructuary is liable for damage dead trees or shrubs already existing at
suffered by the thing by reason of his fraud the beginning of the usufruct.
or negligence although such liability may Under article 576, the usufructuary is not
be set-off against the improvements he responsible for dead, fallen or uprooted
may have made on the property. trunks caused by calamity or extra-
The usufructuary does not answer for ordinary events. If it would not be possible
deterioration due to a fortuitous event. He or be too burdensome to replace them, he
is, however, obligated to make the ordinary may demand that the owner remove them
repairs needed by the thing. and clear the land. He may use the trunks
but he is required to replace them with
Art. 574. Whenever the usufruct includes new plants under Article 575.
things which cannot be used without being If replacing the trunks could not be too
consumed, the usufructuary shall have the burdensome, the usufructuary must
right to make use of them under the replace them, whether or not he makes
obligation of paying their appraised value at use of them.
the termination of the usufruct, if they were
appraised when delivered. In case they were Art. 577. The usufructuary of woodland may
not appraised, he shall have the right to enjoy all the benefits which it may produce
return at the same quantity and quality, or according to its nature.
pay their current price at the time the If the woodland is a copse or
usufruct ceases. (482) consists of timber for building, the
usufructuary may do such ordinary cutting
Usufruct on consumable things or felling as the owner was in the habit of
This is another instance of abnormal doing, and in default of this, he may do so
usufruct because the thing in usufruct in accordance with the custom of the place,
cannot be used without being consumed, as to the manner, amount and season.
like money (but thats really a simple loan, In any case the felling or cutting of
where the usufructuary can deal with the trees shall be made in such manner as not
money as owner.) to prejudice the preservation of the land.
The usufructuary shall have the right to In nurseries, the usufructuary may
make use of the consumable thing. make the necessary thinnings in order that
At the termination of the usufruct, he must: the remaining trees may properly grow.
1. Pay its appraised valuel or With the exception of the
2. If there was no appraisal made, either: provisions of the preceding paragraphs, the
a. Return the same quantity and quality, usufructuary cannot cut down trees unless
or it be to restore or improve some of the
b. Pay its current price at such things in usufruct, and in such case shall
termination. first inform the owner of the necessity for
the work. (485)
Art. 575. The usufructuary of fruit-bearing
trees and shrubs may make use of the dead Usufruct on woodland and nurseries
trunks, and even of those cut off or The woodland may be a copse or may
uprooted by accident, under the obligation consist of timber for building.
to replace them with new plants. (483a) The usufructuary may fell or cut trees as
the owner was in the habit of doing or in
Art. 576. If in consequence of a calamity or accordance with the customs of the place
extraordinary event, the trees or shrubs as to manner, amount and season. In any
shall have disappeared in such case, he must not prejudice the
considerable number that it would not be preservation of the land.
possible or it would be too burdensome to The usufructuary cannot cut down trees
replace them, the usufructuary may leave other than as mentioned above unless it
the dead, fallen or uprooted trunks at the be for repair or improvement of the things
disposal of the owner, and demand that the in usufruct but in such case, the owner
latter remove them and clear the land. must be informed of the necessity for the
(484a) work.
In nurseries, the usufructuary may make
Usufruct on fruit-bearing trees and shrubs the necessary thinnings in order that the
The usufructuary is given the right to make remaining trees may properly grow.
use of dead trunks and those cut-off or
uprooted by accident but he must place Art. 578. The usufructuary of an action to
them with new plants because he has the recover real property or a real right, or any
obligation to preserve the form or movable property, has the right to bring the
substance of the property in usufruct. action and to oblige the owner thereof to
Of course, the usufructuary has no give him the authority for this purpose and
obligation to replace with new plants, the to furnish him whatever proof he may have.
If in consequence of the enforcement of the
57
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

action he acquires the thing claimed, the destroy them provided no damage is
usufruct shall be limited to the fruits, the caused to the property
dominion remaining with the owner. (486) 8. The right to remove is enforceable
only against the owner, but not against
Usufruct of judicial action to recover a purchaser in good faith to whom a
This article applies if the purpose of the clean title has been issued
action is to recover real property or o Right to remove the
personal property or real right over real or improvements should be
personal property annotated on the certificate
The action may be instituted in the name of title, so that it can be
of the usufructuary (vs an agent who enforced against third parties
institutes the action in the name of the
principal) Case doctrines
The usufructuary may oblige the owner to By express provision of law, the
give him the necessary authority to bring usufructuaries do not have the right to
the action reimbursement for improvements they may
In case of favorable judgment, the usufruct have introduced on the property. If the rule
shall be limited to the fruits, with the naked on reimbursement or indemnity were
ownership belonging to the owner. With otherwise, then the usufructuary might
the termination of the case, the usufruct of improve the owner out of his property.
the action comes to an end. (Moralidad v Pernes)

Art. 579. The usufructuary may make on the

property held in usufruct such useful Art. 580. The usufructuary may set off the
improvements or expenses for mere improvements he may have made on the
pleasure as he may deem proper, provided property against any damage to the same.
he does not alter its form or substance; but (488)
he shall have no right to be indemnified
therefor. He may, however, remove such Right to set-off improvements
improvements, should it be possible to do This article presupposes that
so without damage to the property. (487) o the improvements have increased
the value of the property and
What happens when a usufructuary makes o the damage to the same was
useful or luxurious expenses? caused through the fault of the
The usufructuary has the right to make usufructuary.
improvements, useful or luxurious, as he If the damage exceeds the value of the
may deem proper. improvements, the usufructuary is liable
What are the rules? for the difference as indemnity
1. He must not alter the form or If the value of the improvements exceeds
substance of the property, the damage, he may remove the portion of
2. He may remove the improvements the improvements representing the excess
only if it is possible to do so without in value if this can be done without injury
damage to the property to the property, otherwise, the excess in
3. He has no right to be indemnified for value accrues to the owner.
the improvements if he does not
exercise his right to remove Art. 581. The owner of property the usufruct
o He cannot invoke the rights of which is held by another, may alienate it,
of a possessor in good faith but he cannot alter its form or substance, or
in the concept of owner do anything thereon which may be
4. If the improvements cannot be prejudicial to the usufructuary. (489)
removed without damage, he may set-
off the same against any damage Rights and obligations of the naked owner
caused by him to the property (Art The naked owner may alienate the
580) property in usufruct because the title
5. If the usufructuary does not wish to (dominium directum) remains vested in
exercise his right of removal, the him.
owner cannot compel him to remove He may construct works, make
the improvements improvements, or make new plantings on
6. If the usufructuary wishes to exercise the property in usufruct.
his right of removal, the owner cannot The alienation by the naked owner cannot
prevent him by offering to reimburse affect the usufruct which is registered or
him known to the transferee.
7. The usufructuarys right to remove the The naked owner, however, cannot:
improvements includes the right to

58
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

o alter the form or substance of the appraisal of the movables and a description
property, or of the condition of the immovables;
o do anything thereon which may (2) To give security, binding himself to fulfill
cause a diminution in the value of the obligations imposed upon him in
the usufruct, or accordance with this Chapter. (491)
o be prejudicial to the rights of the
usufructuary, Classifications of obligations of the
otherwise, he shall be usufructuary
liable for damages. 1. Those before the usufruct begins
The naked owner must: a. Make an inventory of the
property, which shall contain
o Respect leases of rural lands by
an appraisal of the movables
the usufructuary for the balance
and a description of the
of the agricultural year (Art 572)
immovables
o Reimburse him for advances
b. Give security
made for extraordinary repairs 2. Those during the usufruct
(Art 594), and a. Take care of the property (Art
o Reimburse him for taxes on the 589)
capital (Art 597) b. To replace with the young
thereof animals that die or
are lost in certain cases
Art. 582. The usufructuary of a part of a when the usufruct is
thing held in common shall exercise all the constituted on flock or herd
rights pertaining to the owner thereof with of livestock (Art 591)
respect to the administration and the c. To make ordinary repairs (Art
collection of fruits or interest. Should the 592, par 1)
co-ownership cease by reason of the d. To notify the owner of urgent
division of the thing held in common, the extraordinary repairs (Art
usufruct of the part allotted to the co-owner 593)
shall belong to the usufructuary. (490) e. To permit works and
improvements by the naked
Usufruct of part of common property owner not prejudicial to the
In case a co-owner gives the usufruct of usufruct (Art 595)
his share to a person, the usufructuary f. To pay annual taxes and
shall exercise all the rights pertaining to charges on the fruits (Art
the co-owner regarding the administration 596)
and the collection of the fruits or interest g. To pay interest on taxes on
from the property capital paid by the naked
The usufructuary shall be bound by the owner (Art 597)
partition made by the owners of the h. To pay debts when the
undivided property although he took no usufruct is constituted on the
part in the partition but the naked owner to whole of a patrimony (Art
whom the part held in usufruct has been 598)
allotted must respect the usufruct. i. To secure the naked owners
or courts approval to collect
Case doctrine credits in certain cases (Art
A partition made by the owners of land is 599)
binding upon a person who has a j. To notify the owner of any
usufructuary right in an undivided part of prejudicial act committed by
the land, although the latter took no part in third persons (Art 601)
the partition of the property. k. To pay for court expenses
The right of the usufructuary is not affected and costs regarding usufruct
by the division but it is limited to the fruits (Art 602)
of the said part allotted to the co-owner. 3. Those at the termination of the usufruct
(Pichay v Querol) a. To return the thing in usufruct
to the naked owner unless
CHAPTER 3 there is a right of retention
(Art 612)
OBLIGATIONS OF THE b. To pay legal interest for the
USUFRUCTUARY time that the usufruct lasts,
on the amount spent by the
Art. 583. The usufructuary, before entering owner for extraordinary
upon the enjoyment of the property, is repairs (Art 594) and the
obliged: proper interest on the sums
(1) To make, after notice to the owner or his paid as taxes by the owner
legitimate representative, an inventory of all (Art 597), and
the property, which shall contain an
59
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

c. To indemnify the naked parents, except when the parents

owner for any losses due to contract a second marriage
his negligence or of his
transferees. (Art 589-590) Art. 585. The usufructuary, whatever may be
the title of the usufruct, may be excused
from the obligation of making an inventory
Obligation to make an inventory or of giving security, when no one will be
1. Previous notice to be given. injured thereby. (493)
In the making of the inventory, the
concurrence of the naked owner is not When obligation to make inventory or to give
required. security excused
Note that the law says legitimate, not The usufructuary may be excused from the
legal representative obligation in the following cases:
2. Expenses of inventory 1. Where the naked owner renounces or
Borne by the usufructuary waives his right to the inventory or
3. Form of inventory security
Article 583 does not provide for the 2. Where the title constituting the
form of inventory. It may be contained usufruct relieves the usufructuary from
in a private document. the obligation;
o Is frequently true in usufructs
However, a public instrument is
constituted by a last will and
necessary to affect third persons
testament or by a deed of
when there are immovables.
donation in view of the trust
4. Contents of inventory
which the testator or donor
The inventory shall contain
has in the usufructuary
o an itemized list and 3. Where the usufructuary asks that he
o an appraisal of the movables and be exempted from the obligation and
o description of the condition of the no one will be injured thereby.
immovables. o The usufructuary may apply
The movables must be appraised to the courts for relief in case
because they are subject to greater the naked owner refuses to
danger of loss and deterioration. grant the exemption where,
Both kinds must be properly identified. for example, the usufruct is
over the right to receive a
Failure to make an inventory? Usufruct not periodic income or pension
extinguished, maybe owner can demand it.
Art. 586. Should the usufructuary fail to give
Are there instances where obligation to make security in the cases in which he is bound
inventory is excused? Yes. See Art 585. to give it, the owner may demand that the
immovables be placed under
Obligation to give security administration, that the movables be sold,
The purpose of giving security is to insure that the public bonds, instruments of credit
the fulfillment by the usufructuary of the payable to order or to bearer be converted
obligations imposed upon him into registered certificates or deposited in a
Law does not specify the kind of security bank or public institution, and that the
that should be given capital or sums in cash and the proceeds of
the sale of the movable property be
Failure to give security? See Art 586. invested in safe securities.
The interest on the proceeds of the
Art. 584. The provisions of No. 2 of the sale of the movables and that on public
preceding article shall not apply to the securities and bonds, and the proceeds of
donor who has reserved the usufruct of the the property placed under administration,
property donated, or to the parents who are shall belong to the usufructuary.
usufructuaries of their children's property, Furthermore, the owner may, if he
except when the parents contract a second so prefers, until the usufructuary gives
marriage. (492a) security or is excused from so doing, retain
in his possession the property in usufruct
When obligation to give security not applicable as administrator, subject to the obligation to
This article contains the legal exceptions to deliver to the usufructuary the net proceeds
thereof, after deducting the sums which
the obligation of the usufructuary to give
security in two cases: may be agreed upon or judicially allowed
him for such administration. (494)
o To the donor who has reserved
the usufruct of the property
Effects of failure to give security, when required
donated
On rights of owners: Where the obligation
o To the parents who are
to give security or to file a bond is not
usufructuaries of their childrens
60
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

excused or exempted, the failure of the and should the latter refuse, he may resort
usufructuary to comply with the same to the courts
entitle the naked owner for his protection
o to demand that immovables be Articles with artistic or sentimental value
placed under administration or may not be sold. The owner may demand
receivership, their delivery to him if he gives security to
o movables be sold, the usufructuary for the payment of the
o instruments of credit be legal interest on their appraised value.
registered or deposited in a bank
or public institution Art. 588. After the security has been given
o capital or sums in cash and the by the usufructuary, he shall have a right to
proceeds of the sale of the all the proceeds and benefits from the day
movable be invested in safe on which, in accordance with the title
securities. constituting the usufruct, he should have
On rights of usufructuary: Until he gives commenced to receive them. (496)
the proper security, the usufructuary
cannot enter upon the possession and Retroactive effect of giving security
enjoyment of the property. He may not This article applies where the usufructuary
collect any matured credits nor invest who is required to give security gives the
capital in usufruct without the consent of security after the commencement of the
the owner or judicial authorization. usufruct
The failure to give security does not Failure to give the needed security may
extinguish the right of usufruct. Hence, the deprive the usufructuary of the right to
usufructuary may alienate his right to the enjoy the possession of the property in
usufruct usufruct
This article only speaks of security (it However, once the security is give, he is
would seem that the failure of the entitled to all the proceeds and benefits of
usufructuary to make an inventory, when the usufruct accruing from the day on
not excused, does not have the same which he should have commenced to
effect as when security is not given.) receive them, from the day the usufruct
commenced according to its title.
Art. 587. If the usufructuary who has not
given security claims, by virtue of a promise Art. 589. The usufructuary shall take care of
under oath, the delivery of the furniture the things given in usufruct as a good
necessary for his use, and that he and his father of a family. (497)
family be allowed to live in a house included
in the usufruct, the court may grant this Obligation to take care of the property
petition, after due consideration of the facts Includes the making of ordinary repairs
of the case. needed by thing given in usufruct
The same rule shall be observed Care required is that of a good father of a
with respect to implements, tools and other family (ordinary diligence)
movable property necessary for an industry But diligence should not be less than that
or vocation in which he is engaged. required by the circumstances
If the owner does not wish that Usufructuary is liable for damages suffered
certain articles be sold because of their by the property due to his fault and
artistic worth or because they have a negligence
sentimental value, he may demand their
delivery to him upon his giving security for Art. 590. A usufructuary who alienates or
the payment of the legal interest on their leases his right of usufruct shall answer for
appraised value. (495) any damage which the things in usufruct
may suffer through the fault or negligence
Sworn undertaking in lieu of security ( caucion of the person who substitutes him. (498)
juratoria)
This article applies when the usufructuary Liability for fault or negligence of substitute
who is under obligation to give security The usufructuary may alienate or lease his
cannot afford to do so and no one is willing right
to give security for them However, he shall be liable to the owner
For humanitarian considerations, the court for any damage which the property in
may allow the usufructuary to enjoy the usufruct may suffer through the fault or
property upon taking an oath to take care negligence (also fraud or willful acts) of the
of the property and retain it until the substitute without prejudice to his right of
termination of the usufruct in lieu of giving action against the latter
the security
The usufructuary must first ask the naked Art. 591. If the usufruct be constituted on a
owner to grant him the rights mentioned, flock or herd of livestock, the usufructuary

61
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

shall be obliged to replace with the young o The defects requiring ordinary
thereof the animals that die each year from repairs must have occurred
natural causes, or are lost due to the during the usufruct, whether with
rapacity of beasts of prey. or without the fault of the
If the animals on which the usufruct usufructuary.
is constituted should all perish, without the The usufructuary is not liable for
fault of the usufructuary, on account of deterioration resulting from wear and tear
some contagious disease or any other not due to his fraud or negligence, unless
uncommon event, the usufructuary shall the deterioration could have been
fulfill his obligation by delivering to the prevented or arrested by ordinary repairs
owner the remains which may have been and he failed to make them without valid
saved from the misfortune. reason.
Should the herd or flock perish in
part, also by accident and without the fault Art. 593. Extraordinary repairs shall be at
of the usufructuary, the usufruct shall the expense of the owner. The usufructuary
continue on the part saved. is obliged to notify the owner when the
Should the usufruct be on sterile animals, it need for such repairs is urgent. (501)
shall be considered, with respect to its Art. 594. If the owner should make the
effects, as though constituted on fungible extraordinary repairs, he shall have a right
things. (499a) to demand of the usufructuary the legal
interest on the amount expended for the
Usufruct on a flock or herd of livestock time that the usufruct lasts.
The usufructuary has the duty to make Should he not make them when they are
replacement although the death of the indispensable for the preservation of the
animals is due to natural causes. But the thing, the usufructuary may make them; but
replacement is to be made only from the he shall have a right to demand of the
young produced so that if there are no owner, at the termination of the usufruct,
young or the number of the young is less the increase in value which the immovable
than that of the animals that died, the may have acquired by reason of the repairs.
usufructuary has no duty to replace or to (502a)
fill up the difference.
No duty to replace provided the Duty of owner to pay for extraordinary repairs
usufructuary is without fault (2nd and 3rd Law does not impose an obligation on the
paragraphs). Even if the partial loss is due naked owner or the usufructuary to make
to the fault of the usufructuary, the usufruct extraordinary repairs on the property in
continues with the remainder. Bad use usufruct. It is optional for them to make
does not extinguish the usufruct (Art 603), sure repairs or not.
but the owner may bring the necessary Payment for extraordinary repairs:
action for the protection of his rights. o Those required by the wear and
If the animals are sterile, and they cannot tear due to the natural use of the
be replaced by the young thereof, the thing but not indispensable for its
usufruct shall be treated as constituted on preservation OR those required
fungible things. In such case Art 574 by the deterioration of or damage
applies. the thing caused by the
exceptional circumstances but not
Art. 592. The usufructuary is obliged to indispensable for its preservation:
make the ordinary repairs needed by the The owner cannot be
thing given in usufruct. compelled to make
By ordinary repairs are understood them. If he should make
such as are required by the wear and tear them, they shall be at his
due to the natural use of the thing and are expense since they are
indispensable for its preservation. Should made on his property but
the usufructuary fail to make them after he shall a right to
demand by the owner, the latter may make demand of the
them at the expense of the usufructuary. usufructuary who is
(500) benefited by the repairs,
legal interest on the
Obligation to make ordinary repairs amount expended during
The usufructuary is bound to make the the duration of the
repairs referred to without the necessity of usufruct.
demand from the owner The usufructuary may
o The owner may make them at the make them but he is not
expense of the usufructuary, only entitled to indemnity
should the latter fail to make them because they are not
after demand has been made needed for the
upon him. preservation of the thing.
62
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

o Those required by the The owner has no right to demand legal

deterioration of or damage to the interest on his expenses because they
thing caused by exceptional were voluntarily incurred by him
circumstances and are The owner may even alienate his property
indispensable for its preservation: or make changes thereon as long as he
It is also optional upon doesnt impair the right of the usufructuary.
the owner or the
usufructuary to make the Case doctrine
repairs or not. If the In a case where the usufruct was over the
owner should make the land, and the owner built buildings on the
repairs, they shall be at land, and the usufructuary was demanding
his expense. the rents of the buildings as part of the
If made by the usufruct, the Court held that the
usufructuary, he shall usufructuary was not entitled to the rents
have the right to demand of the building. The usufructuarys
of the owner the argument that Article 571 was applicable
payment of the increase (right to enjoy any increase by accession)
in value of the was wrong because such accession is
immovable by reason of limited to buildings erected on the land of
the repairs at the another and does not contemplate a
termination of the situation where the owner himself erected
usufruct provided the the buildings. (Gaboya v Cui)
following are present: However, the usufructuary was entitled to
He notified the reasonable rental for the portion of the
owner of the land occupied by the building because the
urgency of the construction of the building had reduced
repairs the area of the land and to that extent
The owner diminished the value of the usufruct.
failed to make However, like said above, since the
the repairs usufruct was reserved over the land alone,
The repair is the usufructuary was not entitled to the
necessary for rents of the building itslef.
the
preservation of Art. 596. The payment of annual charges
the property and taxes and of those considered as a lien
The usufructuary has the right of retention on the fruits, shall be at the expense of the
even after the termination of the usufruct usufructuary for all the time that the
until he is reimbursed for the increase in usufruct lasts. (504)
value of the property caused by
extraordinary repairs for preservation (Art Art. 597. The taxes which, during the
612) usufruct, may be imposed directly on the
o Increase in value is the difference capital, shall be at the expense of the
between the value of the property owner.
before the repairs were made and If the latter has paid them, the usufructuary
the value after the repairs were shall pay him the proper interest on the
completed sums which may have been paid in that
character; and, if the said sums have been
Art. 595. The owner may construct any advanced by the usufructuary, he shall
works and make any improvements of recover the amount thereof at the
which the immovable in usufruct is termination of the usufruct. (505)
susceptible, or make new plantings thereon
if it be rural, provided that such acts do not Liability for charges and taxes
cause a diminution in the value of the Usufructuary must pay the annual charges
usufruct or prejudice the right of the and taxes which are imposed, and,
usufructuary. (503) therefore, are a lien upon the fruits during
the term of the usufruct.
Construction, improvements and plantings by Are real property taxes imposed on the
owner fruits or on the capital? On the capital.
The owner has the right to do the works Taxies levied on the capital must be paid
mentioned provided the value of the by the naked owner but he has right to
usufruct is not prejudiced demand from the usufructuary the proper
Any increase in the value of the usufruct interest on the sums paid.
due to the improvements will inure to the If the taxes were advanced voluntarily by
benefit of the usufructuary for he is entitled the usufructuary he is entitled to be
to the use and fruits of the property reimbursed therefor at the termination of

63
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

the usufruct with the right of retention until forming part of the usufruct, collect them,
paid. and use and invest, with or without
interest, the capital he has collected, in
Art. 598. If the usufruct be constituted on any manner he may deem proper
the whole of a patrimony, and if at the time if he
of its constitution the owner has debts, the o has NOT given security, or
provisions of Articles 758 and 759 relating o that given is not sufficient, or
to donations shall be applied, both with o he has been excused from giving
respect to the maintenance of the usufruct security,
and to the obligation of the usufructuary to he may collect the
pay such debts.
credits and invest the
The same rule shall be applied in case the
capital which must be at
owner is obliged, at the time the usufruct is
interest, with the consent
constituted, to make periodical payments,
of the naked owner or
even if there should be no known capital.
approval of the court.
(506)
The credits which
constitute the capital
Where usufruct convers entire patrimony
belong to the naked
Art 598 applies to a
owner but the
o universal usufruct or one which usufructuary has the
covers the entire patrimony of the right to use and invest
owner, and them, and to receive the
o at the time of its constitution, by interest therefrom.
donation or any other acts inter In every case, the investment of the capital
vivos, he has debts, whether must be with sufficient security to preserve
secured or unsecured, or is its integrity
bound to make periodical
payments even if, in the latter Art. 600. The usufructuary of a mortgaged
case, there should be no known immovable shall not be obliged to pay the
capital debt for the security of which the mortgage
The liability of the usufructuary for the was constituted.
debts of the naked owner is the same as Should the immovable be attached
that of the donee under 758 and 759 or sold judicially for the payment of the
o when there is a stipulation for the debt, the owner shall be liable to the
payment by the usufructuary of usufructuary for whatever the latter may
the debts of the owner, the former lose by reason thereof. (509)
is liable only for the debts
contracted by the latter before the Usufruct of mortgaged immovables
constitution of the usufruct The usufruct is particular, constituted by
o in the absence of stipulation, the will or by acts inter vivos, whether by
usufructuary shall be responsible onerous or gratuitous title
only when the usufruct was If the usufruct is universal, the liability of
created in fraud of creditors the usufructuary to pay for the mortgage is
governed by Art 598.
Art. 599. The usufructuary may claim any The owner may validly mortgage the
matured credits which form a part of the
property in favor of a third person. The
usufruct if he has given or gives the proper
debt must be paid by the owner.
security. If he has been excused from giving
security or has been able to give it, or if that The usufructuary may mortgage his right
given is not sufficient, he shall need the of usufruct which is a real right
authorization of the owner, or of the court in
default thereof, to collect such credits. Art. 601. The usufructuary shall be obliged
The usufructuary who has given to notify the owner of any act of a third
security may use the capital he has person, of which he may have knowledge,
collected in any manner he may deem that may be prejudicial to the rights of
proper. The usufructuary who has not given ownership, and he shall be liable should he
security shall invest the said capital at not do so, for damages, as if they had been
interest upon agreement with the owner; in caused through his own fault. (511)
default of such agreement, with judicial
authorization; and, in every case, with Obligation to notify owner of prejudicial acts by
security sufficient to preserve the integrity third persons
of the capital in usufruct. (507) Art 601 speaks of any act which may be
prejudicial to the rights of ownership, not
Usufruct of matured credits merely of the naked ownership
if the usufructuary has given sufficient A usufructuary has the duty to protect the
security, he may claim matured credits owners interest
64
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

However, where the act affects 7. By prescription (acquisitive prescription by

possession, although this is in the the use of a third person, not the use by
usufructuary, he should notify the owner the usufructuary)
because the latter has an interest in 8. Other causes (annulment or rescission of
defending it. the contract)
The usufructuary is also obliged to notify
the owner before making an inventory of Case doctrines
the property and of the need of urgent Although the owner expressly authorized
repairs. the usufructuaries to occupy a portion of
her property as long as they like, the
Case doctrine usufruct may be considered terminated by
A usufructuary has the duty to protect the other modes or instances of
owners interests a usufruct gives a right extinguishment, such as the fulfillment of
to enjoy the property of another with the any resolutory condition provided in the
obligation of preserving its form and document creating the usufruct. (Moralidad
substance, unless the title constituting it or v Spouses Pernez)
the law otherwise provides. (NHA v CA) The 30-year limitation on usufruct under
the Old Spanish Civil Code does not apply
Art. 602. The expenses, costs and liabilities to trusts. (Palad v Governor of Quezon
in suits brought with regard to the usufruct Province)
shall be borne by the usufructuary. (512)
Art. 604. If the thing given in usufruct
Obligation to pay for judicial expenses and cost should be lost only in part, the right shall
Since they are in connection with litigation continue on the remaining part. (514)
over possession affecting the rights of the
usufructuary, it is just that they are borne To extinguish a usufruct, the loss must be
by him. total, except as provided in Art 607 to 609
If the litigation involves only the naked If the loss in only partial, the usufruct
ownership, the owner should assume continues with the remaining part. But if
them. the partial loss may be so important as to
be considered total loss, the courts shall
determine.
CHAPTER 4
EXTINGUISHMENT OF USUFRUCT Art. 605. Usufruct cannot be constituted in
favor of a town, corporation, or association
Art. 603. Usufruct is extinguished: for more than fifty years. If it has been
(1) By the death of the constituted, and before the expiration of
usufructuary, unless a contrary intention such period the town is abandoned, or the
clearly appears; corporation or association is dissolved, the
(2) By the expiration of the period usufruct shall be extinguished by reason
for which it was constituted, or by the thereof. (515a)
fulfillment of any resolutory condition
provided in the title creating the usufruct; The ordinary life of a corporation is 50
(3) By merger of the usufruct and years. Unlike a natural person, a
ownership in the same person; corporation or association may be
(4) By renunciation of the extended indefinitely. Public policy frowns
usufructuary; upon perpetual usufruct.
(5) By the total loss of the thing in The fifty-year limitation does not apply to
usufruct; trusts.
(6) By the termination of the right of
the person constituting the usufruct; Art. 606. A usufruct granted for the time that
(7) By prescription. (513a) may elapse before a third person attains a
certain age, shall subsist for the number of
How is a usufruct extinguished? years specified, even if the third person
1. Death of the usufructuary (unless contrary should die before the period expires, unless
intention clearly appears) such usufruct has been expressly granted
2. Expiration of period or fulfillment of only in consideration of the existence of
condition such person. (516)
3. By merger of the usufruct and ownership
in the same person Exception here is when the usufruct has
4. By renunciation of the usufructuary been expressly granted only in
5. By the total loss of the thing consideration of the existence of the third
6. Termination of right of owner (refers to the person
right of the person constituting the
usufruct, not to a condition imposed upon
the usufruct itself)
65
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Art. 607. If the usufruct is constituted on A life usufruct constituted on the rentals of
immovable property of which a building the fincas situadas located at a certain
forms part, and the latter should be place includes the rentals both on the
destroyed in any manner whatsoever, the building and the land on which it is
usufructuary shall have a right to make use erected, because the building can not exist
of the land and the materials. without the land. Hence, the usufruct is not
The same rule shall be applied if extinguished by the destruction of the
the usufruct is constituted on a building building, for under the law usufruct is
only and the same should be destroyed. But extinguished only by the total loss of the
in such a case, if the owner should wish to thing subject of the encumbrance. (Vda de
construct another building, he shall have a Albar v Carandang)
right to occupy the land and to make use of
the materials, being obliged to pay to the Art. 608. If the usufructuary shares with the
usufructuary, during the continuance of the owner the insurance of the tenement given
usufruct, the interest upon the sum in usufruct, the former shall, in case of loss,
equivalent to the value of the land and of continue in the enjoyment of the new
the materials. (517) building, should one be constructed, or
shall receive the interest on the insurance
Where usufruct of land and building, and indemnity if the owner does not wish to
building destroyed rebuild.
The destruction of the building terminates Should the usufructuary have
the usufruct on the building but no the refused to contribute to the insurance, the
usufruct on the land owner insuring the tenement alone, the
The usufructuary is still entitled to use the latter shall receive the full amount of the
land and in place of the building, the insurance indemnity in case of loss, saving
materials thereof. (Partial loss) always the right granted to the usufructuary
The usufructuary can insist on the use of in the preceding article. (518a)
the land and the materials for the
remainder of the term of the usufruct as Payment of cost of insurance
the right is granted him by law as against Neither the owners nor the usufructuary is
the wish of the owner to construct another under obligation to insure the property in
building. While the usufruct on a building usufruct. Should they do so, and
does not expressly include the land on o The usufructuary shares with the
which it is constructed, the land should be owner in insuring the property, the
deemed included, for while there can be usufructuary shall continue to
land without a building, there can be no enjoy the new building to be
building without land. constructed, or if the owner does
The naked owner shall pay legal interest not wish to rebuild, the
on insurance received if it has not been usufructuary shall receive the
used in the construction of another legal interest on the insurance
building during the whole period of the proceeds which will go to the
usufruct. But he may, if he desires, relieve owner.
himself of this encumbrance by turning o The usufructuary refuses to
over the money to the usufructuary so that contribute to the insurance, and
he may use it subject to the obligation to so the owner pays it alone, the
return the amount to the naked owner after owner gets the full insurance
his death as provided in article 612. indemnity in case of loss, the right
of the usufructuary being limited
Where usufruct on building only and it is to the legal interest on the value
destroyed of the land and of the materials.
Same rule applies although the usufruct The article is silent where the usufructuary
does not cover the land for the simple alone pays the insurance, or where both
reason that the use of the building share in the payment thereof, as to the
necessarily involves the use of the land proportion of their contribution to the
But, the owner is given the preferential insurance.
right to construct another building, occupy
the land and make use of the material Art. 609. Should the thing in usufruct be
even against the objection of the expropriated for public use, the owner shall
usufructuary be obliged either to replace it with another
The only right of the usufructuary is to thing of the same value and of similar
receive during the continuance of the conditions, or to pay the usufructuary the
usufruct, legal interest on the value of the legal interest on the amount of the
land of the materials. indemnity for the whole period of the
usufruct. If the owner chooses the latter
Case doctrines alternative, he shall give security for the
payment of the interest. (519)
66
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

continues, the rights of any usufructuary

Art. 610. A usufruct is not extinguished by who dies shall accrue to the surviving
bad use of the thing in usufruct; but if the usufructuaries.
abuse should cause considerable injury to o The only exception is when the
the owner, the latter may demand that the title constituting the usufruct
thing be delivered to him, binding himself to provides otherwise as where the
pay annually to the usufructuary the net usufruct is constituted in a list and
proceeds of the same, after deducting the will and testament and the
expenses and the compensation which may testator makes a contrary
be allowed him for its administration. (520) provision.

Expropriation of thing in usufruct Art. 612. Upon the termination of the

The expropriation of the thing does not usufruct, the thing in usufruct shall be
extinguish the usufruct. delivered to the owner, without prejudice to
Article 609 allows the substitution of the the right of retention pertaining to the
thing by an equivalent thing. usufructuary or his heirs for taxes and
If the thing in usufruct is expropriated for extraordinary expenses which should be
public use, the naked owner is given the reimbursed. After the delivery has been
option: made, the security or mortgage shall be
o to replace it with another thing of cancelled. (522a)
the same value and of similar
conditions, or Obligation of usufructuary to return the thing
o to pay to the usufructuary the upon termination of the usufruct
legal interest on the amount of Upon the termination of the usufruct, it is
indemnity for the whole period of the duty of the usufructuary to return the
the usufruct. property to the naked owner.
In the latter case, the The usufructuary is expressly granted the
owner shall give security right of retention until he is reimbursed for
for the payment of the the amount of taxes levied on the capital
interest. and for the increase in value caused by
extraordinary repairs.
Effect of bad use He has no right to reimbursement for
Bad use of the thing in usufruct does not useful improvements.
extinguish the right of the usufructuary
whether there is security or not. The
usufruct continues.
But if the bad use causes considerable TITLE VII EASEMENTS OR SERVITUDES
CHAPTER ONE
injury to the owner, not to the thing itself,
EASEMENTS IN GENERAL
the owner is given the right to demand that
the thing be delivered to him, binding
SECTION ONE DIFFERENT KINDS OF
himself to pay annually to the usufructuary
EASEMENTS
the net proceeds of the same, after
deducting the expenses and the
Art. 613. An easement or servitude is an
compensation which may be allowed him
encumbrance imposed upon an immovable
for its administration.
for the benefit of another immovable
This is true where the usufructuary has not
belonging to a different owner.
given any security or the security given is The immovable in favor of which
insufficient especially if the owner has no the easement is established is called the
property. dominant estate; that which is subject
The second part of the provision can thereto, the servient estate. (530)
hardly apply where there is sufficient
security for no considerable injury could Easement or servitude defined
possible be caused to the owner. Easement or servitude has been defined
as a real right constituted on anothers
Art. 611. A usufruct constituted in favor of property, corporeal and immovable, by
several persons living at the time of its virtue of which the owner of the same has
constitution shall not be extinguished until to abstain from doing or to allow
death of the last survivor. (521) somebody else to do something on his
property for the benefit of another thing or
Usufruct in favor of several persons person.
Usufruct is extinguished by the death of The definition in this article is not
the usufructuary unless a contrary complete, being limited to real easement.
intention appears.
In view of the next article which refers to
The usufruct is not extinguished until the
personal easement, the term may be
death of the last survivor. As the usufruct defined as an encumbrance imposed upon
67
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

an immovable for the benefit of another There can be no easement without a

immovable belonging to a different owner burden on an estate for the benefit of
or for the benefit of a community or one or another immovable belonging to a different
more persons to whom the encumbered owner or of a person or group of persons.
estate does not belong by virtue of which The dominant estate cannot be the
the owner is obliged to abstain from doing servient estate at the same time.
or to permit a certain thing to be done on It is not essential that the benefit be very
his estate (whew.) great, it being sufficient that there is a
determinate use or utility in favor of a
Easement and servitude distinguished dominant estate over an estate belonging
1. It is said that easement refers to the right to another.
enjoyed by one, and servitude, the burden
The important thing is that it exists and can
imposed upon another.
be exercised.
2. The two terms are used synonymously in
the Civil Code although it is more partial to On the other hand, the benefit should not
easement. be so great as to be inconsistent with the
general right of ownership of a person,
Characteristics of easement amounting to a taking of his property.
1. It is a real right but will affect third persons
only when duly registered; Easement Lease
2. It is enjoyed over another immovable, Real right, whether Real right only when it
never on ones own property; registered or not, and is registered, or when
3. It involves two neighboring estates, the whether it is real or its subject is real
dominant to which a right belongs and the personal property and the
servient upon which an obligation rests; duration exceeds one
4. It is inseparable from the estate to which it year
is attached and, therefore, cannot be Imposed only on real May involve real or
alienated independently of the estate (Art property personal property
617) Limited right to the Limited right to both
5. It is indivisible for it is not affected by the use of real property of the possession and
division of the estate between two or more another but without use of anothers
persons (Art 618) the right of property (exclusive
6. It is a right limited by the needs of the possession (without possession)
dominant owner or estate, without any exclusive
possession; possession or
7. It cannot consist in the doing of an act occupation)
unless the act is accessory in relation to a
real easement; and Easement Usufruct
8. It is a limitation on the servient owners Imposed only on real May involve real or
rights of ownership for the benefit of the property personal property
dominant owner; and therefore, it is not Limited to a particular Includes all the uses
presumed. or specific use of the and fruits of the
servient estate property
Easement gives the holder an incorporeal Non-possessory right Right of possession in
right on the land but grants no title thereto. over an immovable an immovable or
Therefore, an acknowledgment of the movable
easement is an admission that the Not extinguished by As a rule,
property belongs to another. the death of the extinguished by the
dominant owner death of the
Easement established only on immovable usufructuary
Easements cannot be imposed on Both usufruct and easement are real
personal property but only on immovable rights, whether registered or not, and are
(which must be understood in its common transmissible.
and not in its legal sense).
What the law treats of are not immovables Case doctrines
as defined by the Civil Code but only those The power of eminent omain
which are so by their nature (are really encompasses not only the taking of title to
incapable of being moved) such as lands, and possession of the expropriated
roads, buildings, and constructions property but likewise covers even the
adhering to the soil. imposition of a mere burden upon the
owner of the condemned property. Where
Nature of benefit to dominant estate the nature of the easement practically
Easement can exist only when the servient deprives the owners of the propertys
and dominant estates belong to different normal beneficial use, notwithstanding the
owners. fact that the expropriator only occupies the
sub-terrain portion, it is liable to pay not
68
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

merely an easement fee but rather the full the servitude exists. (Jabonete v
compensation for land. (NPC v Ibrahim) Monteverde)

Art. 614. Servitudes may also be Public and private easements

established for the benefit of a community, Personal easements may be:
or of one or more persons to whom the 1. Public, if it is vested in the public at
encumbered estate does not belong. (531) large or in some class of
indeterminate individuals (like the right
Classifications of easement of the public to a highway over a land
1. As to recipient of benefit of private ownership)
a. Real when the easement is 2. Private, if it is vested in a determinate
in favor of another individual or certain persons (like a
immovable (Art 613); or right of way vested in the owner of
b. Personal when it is in favor one parcel of land over an adjoining
of a community or of one parcel of land)
more persons (Art 614).
Thus, it maybe public or Case doctrines
private. When a person is allowed to construct his
2. As to its source house on the land of another to facilitate
a. Voluntary when the his gathering of fruits, this would be in the
easement is established by nature of a personal easement under
the will or agreement of the Article 614. (Alcantara v Reta)
parties or by a testator (Art
619); Art. 615. Easements may be continuous or
b. Legal when it is imposed discontinuous, apparent or non-apparent.
by law either for public use or Continuous easements are those
in the interest of private the use of which is or may be incessant,
persons (Art 637-687); or without the intervention of any act of man.
c. Mixed when it is created Discontinuous easements are
partly by will or agreement those which are used at intervals and
and partly by law. depend upon the acts of man.
3. As to its exercise Apparent easements are those
a. Continuous see Article 615; which are made known and are continually
or kept in view by external signs that reveal
b. Discontinuous the use and enjoyment of the same.
4. As to whether or not its existence is Nonapparent easements are those
indicated which show no external indication of their
a. Apparent; or existence. (532)
b. Non-apparent
5. As to the duty of servient owner Continuous and discontinuous easements
a. Positive see Article 616; or For an easement to be continuous, it is not
b. negative necessary that the use be incessant; it is
sufficient that the use may be so.
Real and personal servitudes o Examples are the right to support
A servitude may be established for the a beam on anothers wall which
benefit: really exists continuously and the
1. of a particular estate and right of aqueduct which may be
consequently, for its owner; (real or used only on certain days
predial) depending on the need for water
2. of a person or group of persons but which is continuous since its
without being the owner or owners of use does not depend upon the
a dominant estate. (personal) intervention of man.
Unlike a real easement, personal An example of discontinuous servitude is
easement does not require two the right of way which is used at intervals
immovables. An example of a personal because it is physically impossible that
easement is a right of way granted to man shall continually poass over the way.
certain persons and their family, friends, The easement itself, whether continuous
servants, and jeeps. The servitude is for
or discontinuous, exists continuously
the benefit alone of the persons
whether it is being used or not, but its
enumerated and not a predial servitude
exercise may be continuous or
that inures to the benefit of whoever owns
discontinuous, or there may be no
the dominant estate. Hence, the owner of
exercise at all.
the servient estate may refuse to extend
The distinction lies in the fact that in
the said easement to the successors-in-
interest of the persons for whose benefit continuous easements, the exercise or
enjoyment can be had without the
intervention of man while in discontinuous
69
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

easements, such exercise or enjoyment obstructing the passage of light. It

requires the intervention of man. may also be positive depending
In both easements, the benefit and burden upon the manner by which it is
exists from the moment the easements are exercised.
created. When the opening or window is made on
Case doctrine anothers wall (wall of servient estate) or
Easements are either continuous or on a party wall, the easement acquired is
discontinuous according to the manner positive because the owner of the wall
they are exercisd, not according to the allows the servitude to burden his wall.
presence of apparent signs or physical If the window is through ones own wall
indications of the existence of such (wall of the dominant estate) which does
easements. Thus, an easement is not extend over anothers property
continuous if its use is, or may be, (servient estate), the easement is
incessant without the intervention of any negative.
act of man, like the easement of drainage;
and it is discontinuous if it is used at Case doctrines
intervals and depends on the act of man, Restrictive covenants are not, strictly
like the easement of right of way. (Bogo- speaking synonymous with easements,
Medellin v CA) but a case of servitudes or burdens,
sometimes characterized to be negative
Apparent and non-apparent easements easements or reciprocal negative
For an apparent easement, it is not easements. Negative easement is the
necessary that its sign be seen; it is most common easement created by
sufficient if it may be seen or known on covenant or agreement whose effect is to
inspection. preclude the owner of the land from doing
o The sign or signs may be an act, which, if no easement existed, he
encountered in the dominant or would be entitled to do. (Fajardo v
servient estate, according to the Freedom to Build)
circumstances. Courts generally view restrictive covenants
An example of a non-apparent easement with disfavor, but still sustain them where
is a right of way when there is no indication the covenants are reasonable, not contrary
of its existence. to law, or not in restraint of trade. If the
A right of way is apparent when there is a covenant aims to promote aesthetics,
visible road or path to show its exercise. health, and privacy or to prevent
In general, negative easements are non- overcrowding, then the covenant must be
apparent. sustained.
A suit for equitable enforcement of a
Art. 616. Easements are also positive or restrictive covenant can only be made by
negative. one for whose benefit it is intended. It is
A positive easement is one which thus not normally enforceable by one who
imposes upon the owner of the servient has no right nor interest in the land for the
estate the obligation of allowing something benefit of which the restriction has been
to be done or of doing it himself, and a imposed. Thus, developer of a subdivision
negative easement, that which prohibits the can enforce restrictions, even as against
owner of the servient estate from doing remote grantees of lots, only if he retains
something which he could lawfully do if the part of the land. (Fajardo v Freedom)
easement did not exist. (533)

Positive and negative easements Art. 617. Easements are inseparable from
A positive easement is one which imposes the estate to which they actively or
upon the owner of the servient estate the passively belong. (534)
obligation of allowing something to be
done or of doing it himself. Quality of inherence or inseparability
o Example: the easement of which Servitudes are inseparable from the estate
the right of way which imposes to which they actively or passively belong,
upon the owner of the servient being accessory things whose very
estate the duty to allow the use of existence depends upon the principal thing
said way. (immovable).
A negative easement is that which Hence, they are intransmissible in the
prohibits the owner of the servient estate sense that they cannot be alienated or
from doing something which he could mortgaged independently of the estate.
lawfully do if the easement did not exist. An easement cannot be the object of
o Example: easement of light and usufruct because it has no existence
view whereby the owner of the independent of the immovable to which it
servient estate is prohibited from attaches.

70
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

If the dominant estate is alienated, such increase in the owners of the

alienation carries with it also the dominant estates.
easements established in its favor even if
they are not annotated as an Art. 619. Easements are established either
encumbrance on the certificate of title. by law or by the will of the owners. The
An easement is extinguished or cut-off, former are called legal and the latter
however, by the registration of the servient voluntary easements. (536)
estate under the Torrens system without
the easement being annotated on the Legal and voluntary easements
corresponding certificate of title. A This article gives the two kinds of
registered owner or subsequent purchaser easements according to source.
of registered land holds his certificate of The courts cannot impose or constitute
title free from all encumbrances except any servitude where none existed.
only those noted in said certificate and the They can only declare its existence if in
statutory liens. reality it exists by law or by the will of the
o But if the existence of an owners.
easement was known to the There are no judicial easements.
transferee or grantee of the Voluntary easements must be recorded in
servient estate, such knowledge the Registry of Property in order not to
is equivalent to registration. prejudice third persons.
Case doctrines
SECTION TWO - MODES OF
A vendee on real property on which a
servitude or an easement of right of way ACQUIRING EASEMENTS
exists does not acquire the right to close
that servitude to prevent the neighboring Art. 620. Continuous and apparent
estates from using it. (Solid Manila v Bio easements are acquired either by virtue of a
Hong) title or by prescription of ten years. (537a)

Art. 618. Easements are indivisible. If the Modes of acquiring easements

servient estate is divided between two or 1. By title. All easements.
more persons, the easement is not a. Continuous and apparent
modified, and each of them must bear it on easements (Art 620)
the part which corresponds to him. b. Continuous and non-
If it is the dominant estate that is apparent easements (Art
divided between two or more persons, each 622)
of them may use the easement in its c. Discontinuous easements,
entirety, without changing the place of its whether apparent or non-
use, or making it more burdensome in any apparent
other way. (535) 2. By prescription of ten years only
continuous and apparent easements
Quality of indivisibility 3. By deed of recognition (Art 623)
Easement as a right is indivisible. 4. By final judgment
5. By apparent sign established by the owner
Accordingly, the partition between two or of two adjoining estates (Art 624)
more persons of either the servient or
dominant estate does not affect the Acquisition by title or prescription
existence of the servitude which continues Only continuous and apparent easements
in its entirety.
may be acquired either by virtue of a title
If the servient estate is divided, each new
or by prescription in 10 years.
owner must bear the easement but only By title, it refers to the juridical act which
with respect to the part corresponding to
gives birth to the easement, such as law,
him.
donation, contract and will of the testator.
If the dominant estate is divided, each
This article fixes ten years as the period of
owner can exercise the whole easement
prescription, regardless of good faith or
over each of the servient estates subject to
bad faith of the possessor and whether or
the condition that the place of easement
not he has just title.
shall not be changed and the easement
The general rules on prescription do not
shall not be more burdensome.
o A person entitled to a right of way apply, the only requirement being that
there be adverse possession of the
may do whatever is necessary to
easement for ten years.
make it convenient for his use but
he cannot deviate therefrom. The
Case doctrines
easement is not considered made
more burdensome by the mere Prescription as a mode of acquisition
requires the existence of the following:
2. Capacity to acquire by prescription
71
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

3. Thing capable of acquisition by o If the latter consents to such

prescription prohibition and the period fixed by
4. Possession of the thing under certain law expires, the easement will be
conditions acquired by prescription. There is
Under claim of title (en concepto no true easement for as long as
de dueno) the right to prohibit its exercise
Possession not merely tolerated exists.
by owner If made through a party wall or on ones
5. Lapse of time provided by law own wall which extends over the
(National Power Corp v Campos) neighboring estate, the easement acquired
is positive because the owner of the latter
estate who has a right to close it up allows
Art. 621. In order to acquire by prescription an encumbrance on the property.
the easements referred to in the preceding o The period of prescription shall be
article, the time of possession shall be counted from the time of the
computed thus: in positive easements, from opening of the window.
the day on which the owner of the dominant
estate, or the person who may have made Art. 622. Continuous non-apparent
use of the easement, commenced to easements, and discontinuous ones,
exercise it upon the servient estate; and in whether apparent or not, may be acquired
negative easements, from the day on which only by virtue of a title. (539)
the owner of the dominant estate forbade,
by an instrument acknowledged before a Acquisition only by title
notary public, the owner of the servient Continuous and apparent easements are
estate, from executing an act which would the only easements that can be acquired
be lawful without the easement. (538a) by prescription because they are the only
ones the possession of which fulfills two
Computation of the prescriptive period important requisites required by law for
If the easement is positive, the period is prescription possession be public and
counted from the day on which the owner continuous.
of the dominant estate began to exercise it The easements mentioned in Art 622 may
o From the day a window was built be acquired by title, not by prescription
in a party wall because their possession or exercise is
If the easement is negative, from the day either not public (non-apparent) such as
on which a notarial prohibition was made easement of lateral and subjacent support,
on the servient estate or it is public but not continuous or
Under article 622, non-apparent uninterrupted (discontinuous), like a right
easements may not be acquired by of way if there is a visible path.
prescription. Negative easements are However, for legal purposes, the easement
essentially non-apparent. However, article of aqueduct shall be considered as
621 provides the prescriptive period for continuous and apparent, although it is not
negative easements. The notarial really so.
prohibition may be taken as making the
easement apparent, and therefore, Art. 623. The absence of a document or
prescriptible. proof showing the origin of an easement
which cannot be acquired by prescription
Computation in case of easement of light and may be cured by a deed of recognition by
view the owner of the servient estate or by a final
If made on ones own wall and the wall judgment. (540a)
does not extend over the property of
another, the easement is negative Art. 624. The existence of an apparent sign
because the owner is merely exercising his of easement between two estates,
inherent right of dominion and not an established or maintained by the owner of
easement. both, shall be considered, should either of
o The servient owner cannot close them be alienated, as a title in order that the
it up; otherwise he will be liable easement may continue actively and
for trespass. passively, unless, at the time the ownership
o But the negative easement is not of the two estates is divided, the contrary
automatically vested. The owner should be provided in the title of
must make the prohibition conveyance of either of them, or the sign
required upon the proprietor of aforesaid should be removed before the
the adjoining land or tenement to execution of the deed. This provision shall
prevent him from obstructing the also apply in case of the division of a thing
light and view. owned in common by two or more persons.
(541a)

72
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Alienation by same owner of two estates with alienation of another estate, inasmuch as
sign of existence of servitude before that time there is no easement to
This contemplates a situation where two speak of, there being but one owner of
estates between which there exists an both estates. (Gargantos v Tan Yanon)
apparent sign (like a window or road) of an
easement belong to the same owner. Art. 625. Upon the establishment of an
What the law requires is that the sign easement, all the rights necessary for its
indicates the existence of a servitude use are considered granted. (542)
although there is no true servitude there
being only one owner Rights granted by easement
In case the owner alienates either of them All easements carry with them all the rights
or both with the result that the ownership necessary for their use and exercise
thereof is divided, the easement shall Since these accessory rights or accessory
continue unless the contrary has been easements exist solely by virtue of and for
stipulated in the title of conveyance of the use of the servitude which can be
either of them or the sign removed before considered as the principal one, they
the execution of the deed cease upon the termination of the
o The existence of the apparent servitude
sign is equivalent to a title if no
objection has been made by the Art. 626. The owner of the dominant estate
servient owner for an implied cannot use the easement except for the
contract that the easement should benefit of the immovable originally
be constituted is deemed to exist contemplated. Neither can he exercise the
between the new owners easement in any other manner than that
o The dominant owner can oppose previously established. (n)
the owner of the servient estate
from doing anything which would Immovable to be benefited by easement, and
be inconsistent with his obligation manner of its exercise
to respect the easement The rule in the first sentence is just
If the lots are owned by because if the owner of the dominant
two different owners, a estate is allowed to use the servitude for
notarial prohibition the benefit of other adjoining lands
should be effected (Atty subsequently acquired, or for others, that
Abrenica) would make the easement more onerous
This article applies in case of the division and beyond the intention of the parties
of a common property by the co-owners as If the easement has been constituted in
the effect is the same as an alienation, or general terms, only the rights which are
there is only one estate and a part thereof reasonably necessary and convenient for
is alienated. the use contemplated and would case the
This article is not applicable in case the least burden to the servient estate are
two estates or portions of the same estate granted.
remain or continue to be in the same Where the purpose of the easement or the
owner after alienation or partition manner of its exercise is defined by the
title creating it, the exercise of the
Case doctrine easement must be consistent with such
Where two adjoining estates were formerly purpose or manner
owner by just one person who introduced
improvements on both, such that the wall SECTION THREE RIGHTS AND
of the house constructed on the first estate OBLIGATIONS OF THE OWNERS OF
extends to the wall of the camarin on the THE DOMINANT AND SERVIENT
second estate; and at the time of the sale
ESTATES
of the first estate, there existed on the wall
of the house, doors and windows (which
Art. 627. The owner of the dominant estate
serve as passages for light and view),
may make, at his own expense, on the
there being no provision in the deed of
servient state any works necessary for the
sale that the easement of light and view
use and preservation of the servitude, but
will not be established, the case is covered
without altering it or rendering it more
by 624.
burdensome.
The existence of doors and windows on
For this purpose he shall notify the owner
the aforesaid wall of the house is of the servient estate, and shall choose the
equivalent to a title that characterizes its most convenient time and manner so as to
existence. cause the least inconvenience to the owner
But while the law declares that the of the servient estate. (543a)
easement is to continue, the easement
actually arises for the first time only upon What are the rights of the dominant owner?
73
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

1. Exercise all the rights necessary for the referred to in the preceding article, in
use of the easement proportion to the benefits which each may
2. Make on the servient estate all works derive from the work. Any one who does
necessary for the use and preservation of not wish to contribute may exempt himself
the servitude by renouncing the easement for the benefit
3. Renounce the easement if he desires to of the others.
exempt himself from the contribution to If the owner of the servient estate
necessary expenses should make use of the easement in any
4. Ask for mandatory injunction to prevent manner whatsoever, he shall also be
impairment of his of the easement obliged to contribute to the expenses in the
proportion stated, saving an agreement to
What are the obligations of the dominant the contrary. (544)
owner?
1. Cannot alter the easement or render it Obligation to contribute to expenses of
more burdensome necessary works
2. Notify the servient owner of works This article contemplates several dominant
necessary for the use and preservation of estates.
the servitude All the owners shall share the expenses in
3. Choose the most convenient time and proportion to the benefits derived by each
manner in making the necessary works as estate from the works and not in proportion
to cause the least inconvenience to the to their respective interests. The benefits
servient owner shall be presumed equal in the absence of
4. Contribute to the necessary expenses if any agreement or proof to the contrary.
there are several dominant estates in The easement of right of way ordinarily
proportion to the benefits derived from the gives the same benefit
works An owner may exempt himself from
contributing to the expenses by
What are the rights of the servient owner? renouncing the easement in favor of the
1. Retain the ownership of the portion of the others.
estate on which the easement is What about the servient owner? Well, he
established shall be obliged to contribute to the
2. Make use of the easement, unless there is expense except when there is a stipulation
an agreement to the contrary to the contrary, should he make use of the
3. Change the place or manner of the use of easement in any manner whatsoever. If he
the easement, provided it be equally bound himself to bear the cost of the work,
convenient he may free himself form the obligation by
renouncing his property to the dominant
What are the obligations of the servient owner? owner (Art 693)
1. Cannot impair the use of the easement
2. Contribute to the necessary expenses in Art. 629. The owner of the servient estate
case he uses the easement, unless there cannot impair, in any manner whatsoever,
is an agreement to the contrary the use of the servitude.
Nevertheless, if by reason of the
Right of the dominant owner to make place originally assigned, or of the manner
necessary works established for the use of the easement, the
Right granted by 627 is subject to the same should become very inconvenient to
following conditions: the owner of the servient estate, or should
1. Works shall be at his expense and are prevent him from making any important
necessary for the use and works, repairs or improvements thereon, it
preservation of the servitude may be changed at his expense, provided
2. They do not alter or render the he offers another place or manner equally
servitude more burdensome; convenient and in such a way that no injury
3. The dominant owner, before making is caused thereby to the owner of the
the works, must notify the servient dominant estate or to those who may have a
owner, and right to the use of the easement. (545)
4. They shall be done at the most
convenient time and manner as to Obligation of servient owner not to impair
cause the lease inconvenience to the servitude
servient owner The servient owner may abstain from
constructing works or performing any act
Case doctrine which will impair, in any manner
(Goldcrest v Cypress Gardens) whatsoever, the use of the servitude.
An injunction lies at the instance of the
Art. 628. Should there be several dominant dominant owner to prohibit the servient
estates, the owners of all of them shall be owner from impairing the use of the
obliged to contribute to the expenses servitude
74
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

unless when the use becomes possible,

Right of servient owner to change place or sufficient time for prescription has elapsed,
manner of easement in accordance with the provisions of the
While the servient estate cannot impair the preceding number;
use of the servitude, he may change at his (4) By the expiration of the term or
expense the place or manner for its use the fulfillment of the condition, if the
provided the following requisites are easement is temporary or conditional;
present: (5) By the renunciation of the owner
1. The place or manner has become of the dominant estate;
very inconvenient to him or prevents (6) By the redemption agreed upon
him from making important works between the owners of the dominant and
thereon; servient estates. (546a)
2. He offers another place or manner
equally convenient; and What are the modes of extinguishment of
3. No injury is caused by the chance to easements?
the dominant owner or to whoever 1. By merger
may have a right to the use of the It is not necessary that it be with
easement. respect to the full extent of the
tenement but only with respect to that
Art. 630. The owner of the servient estate part affected by the servitude or that
retains the ownership of the portion on part for the benefit of which the
which the easement is established, and may servitude was established
use the same in such a manner as not to The merger must be absolute and
affect the exercise of the easement. (n) complete in one and the same person
and not by virtue of other real rights
Right of servient owner to use easement less than full ownership. (where the
The servient owner preserves his merger is temporary, as when it is
dominion over the portion of his estate on subject to a resolutory condition, there
which the easement is established is only a suspension but not an
This is true although the indemnity extinguishment of the servitude.)
consists of the value of the land occupied If the servient owner becomes a co-
and the amount of the damage to the owner of the dominant estate, there is
servient estate (Art 649) no merger for he has acquired only a
He may use the easement subject to the part interest therein.
condition that he does not impair the rights If the dominant sells a retro the whole
of the dominant owner. immovable to the servient, the
easement is not extinguished but only
Case doctrine suspended. The servitude is revived
When the trial court found that the when the dominant redeems the
persons right to continue to use the septic property.
tank ceased upon the subdivision of the What if the dominant sells absolutely
land and its subsequent sale to different to the servitude, buys it back, then
owners who do not have the same sells it to a third person. There is no
interest, the Supreme Court said that this revival here because it was already
is contrary to law. (Tanedo v Bernad) unconditionally extinguished by the
sale of the property to the servient.
SECTION FOUR MODES OF But if the sale to servient by dominant
EXTINGUISHMENT OF EASEMENTS was rescinded or annulled, there is no
extinguishment by merger.
2. By non-user for ten years
Art. 631. Easements are extinguished:
(1) By merger in the same person of This mode is applicable only to
the ownership of the dominant and servient easements that have been in use and
estates; later abandoned, for one cannot
(2) By nonuser for ten years; with discontinue using what one has never
respect to discontinuous easements, this used
period shall be computed from the day on Some legal easements (natural
which they ceased to be used; and, with drainage) may be extinguished by
respect to continuous easements, from the non-user, but only with respect to the
day on which an act contrary to the same actual form or manner in which they
took place; had been exercised, and the right or
(3) When either or both of the the power to claim the exercise of
estates fall into such condition that the legal easements does not prescribe,
easement cannot be used; but it shall revive as occurs especially in the case of the
if the subsequent condition of the estates or right of way and easement of
either of them should again permit its use, aqueduct. (Francisco v Paez)

75
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

If the easement is discontinuous (right sufficient for the purpose although it

of way), the period of ten years shall may constitute non-use. A clear case
be computed from the day it ceased to of implied waiver is the act of covering
be used. up a window by the dominant owner
If continuous (natural drainage), from and yet this act does not ipso facto
the day on which an act contrary to extinguish the easement, but only
the same took place (like construction serves to make the starting point for
of a dam which blocks natural prescription. (Francisco v Paez)
drainage) Where the easement is in favor of a
The non-use must be voluntary on the particular group of persons, the
part of the dominant owner and not voluntary renunciation thereof by
due to fortuitous events beyond his some of them will not affect the right
control unless the non-use is due to of the others.
the impossibility of use under no 3 6. By redemption
Whats the basis? Well, its it must be by virtue of an agreement
presumptive renunciation. between the owners of the dominant
o So, the proof of non-user and servient estates under which the
must be undubitable servitude would be extinguished
particularly where the 7. By other causes
easement is perpetual in Annulment, rescission, abandonment,
character because of its etc
annotation in the Torrens Registration of the servient estate
title. Thus, the mere non-use under the Torrens system without the
of a passageway by the easement being annotated in the title
dominant owner who has
gained direct access to Some case doctrines
another way does not Alienation of the dominant and servient
extinguish the easement of estates to different persons is not one of
right of way. In the absence the grounds for extinguishment of the
of any evidence that could easement. (Tanedo v Bernad)
point to mutual agreement to Absent a statement abolishing or
the discontinuance of the extinguishing the easement, then the
easement annotated on the easement is continued by operation of law.
title, its continued existence (Tanedo v Bernad)
must be upheld An easement is perpetual in character
The use by a co-owner of the when it is annotated on all the transfer
dominant estate benefits all the other certificates of title issued. Since there is no
co-owners and prevents prescription evidence that would point to a mutual
as to them. agreement between any of the parties with
3. Impossibility of use respect to the discontinuance or
When the condition of either or both of obliteration of the easement annotated on
the estates which makes impossible the titles, the continued existence of the
the use of the easement is easement must be upheld and respected.
irreparable, whether caused by (Benedicto v CA)
fortuitous events or not, the servitude NB: When the easement is a legal
is absolutely extinguished easement, it need not be annotated in the
o Otherwise, the impossibility title. A legal easement is one mandated by
of use merely suspends the law, constituted for public use or for private
servitude until such time interest and becomes a continuing
when it can be used again property right. It is inseparable from the
estate to which it belongs. So, theres no
4. By expiration of term or fulfillment of need to annotate in the title. (Villanueva v
resolutory condition Velasco)
5. By renunciation A voluntary easement of right of way, like
The renunciation or waiver must be any other contract, could be extinguished
specific, clear and express. only by mutual agreement or by
This is particularly true for renunciation of the owner of the dominant
discontinuous easements such as estate. As it is like any other contract, it is
right of way. generally effective between the parties,
The waiver must be at least such as their heirs and assigns, except in case
may be obviously gathered from where the rights and obligations arising
positive acts if not formal and from the contract are not transmissible by
solemn. The mere refraining from their nature, or by stipulation, or by
claiming the right, without any positive provision of law. (Unisource v Chung,
acts imply a real waiver, is not 2009)

76
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

If there are easement or other rights Art. 634. Easements imposed by law have
appurtenant to a parcel of registered land for their object either public use or the
which for any reason have failed to be interest of private persons. (549)
registered, such easement or rights shall
remain so appurtenant notwithstanding What is legal easement?
such failure, and shall be held to pass with Legal easements are easements imposed
the land until cut off or extinguished by the or mandated by law, and which have for
registration of the servient estate or in any their object:
other manner. An easement is cut off or o either public use or
extinguished by the registration of the o the interest of private properties
servient estate under the Torrens system They become a continuing property right
without the easement being annotated on
the corresponding certificate of title, Kinds of legal easements
pursuant to Sec 39 of Act 496 1. Public legal easements or those for public
(Purugganan v Paredes) or communal use
o EXCEPTION: When the 2. Private legal easements or those for the
person who registers the interest of private persons or for private
servient estate has ACTUAL use, which include those relating to
knowledge that an easement a. Waters
exists. (One cant rely on the b. Right of way
face of the title if one has c. Party wall
actual knowledge of facts d. Light and view
which should compel him to e. Drainage
do further investigation) f. Intermediate distances
g. Against nuisance
Art. 632. The form or manner of using the h. Lateral and subject support
easement may prescribe as the easement
itself, and in the same way. (547a) Case doctrine
See Villanueva v Velasco cited in Art 631
Prescription of form or manner of using
easement
The form or manner (or mode) of using the Art. 635. All matters concerning easements
easement is different from the easement established for public or communal use
itself or the right to exercise it shall be governed by the special laws and
Both may be lost by prescription regulations relating thereto, and, in the
Some legal easements, however, do not absence thereof, by the provisions of this
prescribe but the form or manner of using Title. (550)
all easements including legal easements
may be lost or acquired by prescription Art. 636. Easements established by law in
the interest of private persons or for private
Art. 633. If the dominant estate belongs to use shall be governed by the provisions of
several persons in common, the use of the this Title, without prejudice to the
easement by any one of them prevents provisions of general or local laws and
prescription with respect to the others. ordinances for the general welfare.
(548) These easements may be modified
by agreement of the interested parties,
Where dominant estate owned in common whenever the law does not prohibit it or no
Easements are indivisible injury is suffered by a third person. (551a)
Hence, the use by a co-owner inures to the
benefit of all the other co-owners and Governing laws
prevents prescription as to shares of the 1. Public legal easements they are
latter governed primarily by the special laws and
In other words, the use by a co-owner is regulations relating thereto, and by the
Civil Code (634-687), inclusive.
deemed to be used by each and all the co-
2. Private legal easements
owners
a. By agreement of the
interested parties provided it
CHAPTER 2 is not prohibited by law or
LEGAL EASEMENTS injurious to a third person
b. In the absence of agreement,
SECTION ONE GENERAL by the provisions of general
and local laws and
PROVISIONS ordinances for the general
welfare; and

77
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

c. In default of a and b, by waters, but not those which will impede the
articles 634 to 687, inclusive easement.
of the Civil Code. Duty of dominant owner the owner of the
higher tenement cannot make works which
Case doctrine will increase the burden. If the waters are
Where the land was originally public land, the result of artificial development, or are
and awarded by free patent with a the overflow from irrigation dams, or
reservation for a legal easement of a right- proceed from industrial establishments
of-way in favor of the government, just recently set up, the owner of the lower
compensation need not be paid for the estate shall be entitled to compensation for
taking of a part thereof for public use as an his loss or damage.
easement of a right of way, unlike if the o But the dominant owner is
land were originally private property. (NIA v not prohibited from cultivating
CA) his land or constructing
works to regulate the descent
SECTION TWO EASEMENTS of the waters to prevent
RELATING TO WATERS erosion to his land and as
long as he does not impede
Art. 637. Lower estates are obliged to the natural flow of the waters
receive the waters which naturally and and increase the burden of
without the intervention of man descend the lower estate, he is not
from the higher estates, as well as the liable for damages.
stones or earth which they carry with them.
The owner of the lower estate Remember Remman v CA? The case with the
cannot construct works which will impede pig shit? It also said that tax returns per se
this easement; neither can the owner of the could not reflect the total amount of damages
higher estate make works which will suffered by a party, as income losses from a
increase the burden. (552) portion of his property could be offset by any
profit derived from the rest of said property or
Legal easements relating to waters from other sources of income.
1. Natural drainage (637)
2. Drainage of buildings (674) Art. 638. The banks of rivers and streams,
3. Easement on riparian banks for navigation, even in case they are of private ownership,
floatage, fishing, salvage, and towpath are subject throughout their entire length
(638) and within a zone of three meters along
4. Easement of a dam (639, 647) their margins, to the easement of public use
5. Easement for drawing water or for in the general interest of navigation,
watering animals (640-641) floatage, fishing and salvage.
6. Easement of aqueduct (642-646) Estates adjoining the banks of
7. Easement for the construction of a stop navigable or floatable rivers are,
lock or sluice gate (647) furthermore, subject to the easement of
towpath for the exclusive service of river
Natural drainage of lands navigation and floatage.
If it be necessary for such purpose
This article imposes a natural easement
to occupy lands of private ownership, the
upon the lower estates which are obliged
proper indemnity shall first be paid. (553a)
to receive the waters which naturally and
without the intervention of man descend
Public easements on banks of river
from the higher estates, as well as the
Banks of rivers and streams, whether they
stones or earth carried by the waters.
are of public or private ownership, are
This easement is a continuous one and
subject to easement of public use for:
may be extinguished by non-user for the
1. Navigation
period of 10 years required by law. Thus, if
2. Floatage
a dike was constructed by the servient
3. Fishing
owner (an act contrary to the easement),
4. Salvage
the action to destroy the dike is barred if
5. With respect to estates adjourning
brought only after 1 years.
banks of navigable rivers, also to
Duty of servient owner the owner of the easement of towpath.
lower estate cannot construct works which If the land is of public ownership, there is
will impede this easement, such as walls,
no indemnity; if of private ownership, the
ditches or fences, or a dam which blocks
proper indemnity shall first be paid before
the natural flow of the waters. The
it may be occupied. Riparian owners
dominant owner may demand their
cannot be required to subject their
removal or destruction and recover
property to the easement for the benefit of
damages. The servient owner may
the public without prior indemnity.
construct works to regulate the flow of

78
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

The width of the zone subject to the This is a personal easement which
easement is 3 meters throughout the includes the accessory easement of
entire length of the bank along its margin. passage or right of way of persons and
The easement established by Article 638 animals to the place where the easement
does not apply to canals or esteros. is to be used.
Requisites are:
Art. 639. Whenever for the diversion or 1. Must be imposed for reasons of public
taking of water from a river or brook, or for use;
the use of any other continuous or 2. Must be in favor of a town or village;
discontinuous stream, it should be and
necessary to build a dam, and the person 3. Must be payment of proper indemnity.
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 Art. 642. Any person who may wish to use
a dam, after payment of the proper upon his own estate any water of which he
indemnity. (554) can dispose shall have the right to make it
flow through the intervening estates, with
Abutment of buttress of a dam the obligation to indemnify their owners, as
A person who needs to build a dam to well as the owners of the lower estates
divert or take water from a river or brook upon which the waters may filter or
but is not the owner of the banks or lands descend. (557)
which must support the dam, may be
allowed the easement of abutment or Art. 643. One desiring to make use of the
buttress of a dam (estribo de presa) right granted in the preceding article is
He must seek the permission of the owner, obliged:
and in case of the latters refustal, he must (1) To prove that he can dispose of
secure authority from the proper the water and that it is sufficient for the use
administrative agency which will conduct for which it is intended;
the necessary investigation in which all (2) To show that the proposed right
interested parties are given opportunity to of way is the most convenient and the least
be heard. In establishing the easement, onerous to third persons;
the proper indemnity must be paid. (3) To indemnify the owner of the
Where the construction of a dam is servient estate in the manner determined by
unauthorized, the same can be considered the laws and regulations. (558)
a private nuisance and may be lawfully
destroyed or removed by the injured Art. 644. The easement of aqueduct for
landowner or by any persona acting under private interest cannot be imposed on
his directions. buildings, courtyards, annexes, or
outhouses, or on orchards or gardens
Case doctrine already existing. (559)
An easement of buttress can be imposed
Easement of aqueduct what is it?!
by administrative authority with respect to
Easement of aqueduct is the right arising
land lying adjacent to public or private
waters; but in such case it is required that from a forced easement by virtue of which
an investigation of record shall be made the owner of an estate who desires to avail
before the easement of buttress is himself of water for the use of said estate
decreed. The making of the investigation may make such waters pass through the
of record is an essential prerequisite to the intermediate estate with the obligation of
exercise of the power. (Solis v Pujeda) indemnifying the owner of the same and
also the owner of the estate to which the
Art. 640. Compulsory easements for water may filter or flow.
drawing water or for watering animals can The easement is provided in Article 642. It
be imposed only for reasons of public use gives the right to make water flow through
in favor of a town or village, after payment or under intervening or lower estates.
of the proper indemnity. (555)
Requisites?
Art. 641. Easements for drawing water and The person desiring to make use of the
for watering animals carry with them the easement must:
obligation of the owners of the servient 1. Prove that he has the capacity to dispose
estates to allow passage to persons and of the water;
animals to the place where such easements 2. Prove that the water is sufficient for the
are to be used, and the indemnity shall use intended;
include this service. (556) 3. Show that the proposed right of way is the
most convenient and the least onerous to
Drawing water or watering animals third persons; and

79
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

4. Pay indemnity to the owner of the servient the removal or destruction of such works
estate. with a right to indemnity for damages.
But where the number of years
that have elapsed since the Art. 646. For legal purposes, the easement
easement had first come into of aqueduct shall be considered as
existence and the subsequent continuous and apparent, even though the
changes in ownership of lots flow of the water may not be continuous, or
involved would make it impossible its use depends upon the needs of the
to present proof of indemnity to dominant estate, or upon a schedule of
the owner of the servient estate, alternate days or hours. (561)
this requisite has been deemed to
be complied with. (Salazar v Easement considered as continuous and
Gutierrez) apparent
For legal purposes, the easement is
The easement cannot be imposed over considered continuous and apparent and
buildings, courtyards, annexes or gardens therefore, may be susceptible of
if the easement is for private interest. acquisitive prescription.

Case doctrines Art. 647. One who for the purpose of

The Spanish Law of Waters allows the irrigating or improving his estate, has to
creation of a compulsory easement of construct a stop lock or sluice gate in the
aqueduct for the purpose of establishing or bed of the stream from which the water is to
extending an irrigation system, and there be taken, may demand that the owners of
is nothing to the contrary in the Civil Code. the banks permit its construction, after
The registration of the servient lot without payment of damages, including those
the corresponding registration of the caused by the new easement to such
easement of aqueduct on the title cannot owners and to the other irrigators. (562)
summarily terminate it 30 years thereafter
where the original registered owner of the Construction of a stop lock or sluice gate
servient lot allowed the easement to In Article 639, the purpose of building a
continue in spite of such non-registration. dam is to divert water from a river or
The least that can be said is that he either brook. Here, the purpose of the
recognized its existence as a compulsory construction is to take water for irrigation,
servitude on his estate or voluntarily or to improve an estate.
agreed to its establishment and In both cases, the construction is on the
continuance. And subsequent purchasers estate of another and proper indemnity
of the servient estate cannot capitalize on has to be paid. Furthermore, no damage
the absence of annotation on the title must be caused to third persons.
where they are aware of the existence of
the easement and likewise allowed it to Art. 648. The establishment, extent, form
continue for 26 years after they acquired and conditions of the servitudes of waters,
title. (Salazar v Gutierrez) to which this section refers, shall be
governed by the special laws relating
Art. 645. The easement of aqueduct does thereto insofar as no provision therefor is
not prevent the owner of the servient estate made in this Code. (563a)
from closing or fencing it, or from building SECTION THREE EASEMENT OF
over the aqueduct in such manner as not to RIGHT OF WAY
cause the latter any damage, or render
necessary repairs and cleanings Art. 649. The owner, or any person who by
impossible. (560) virtue of a real right may cultivate or use
any immovable, which is surrounded by
Right of owner of servient estate other immovables pertaining to other
The servient owner may close or fence his persons and without adequate outlet to a
estate, or build over the aqueduct so long public highway, is entitled to demand a right
as no damage is caused to the aqueduct of way through the neighboring estates,
or the necessary repairs and cleaning of after payment of the proper indemnity.
the same are not rendered impossible. Should this easement be
He can construct works he may deem established in such a manner that its use
necessary to prevent damage to himself may be continuous for all the needs of the
provided he does not impede or impair, in dominant estate, establishing a permanent
any manner whatsoever, the use of the passage, the indemnity shall consist of the
easement just like the owner of the lower value of the land occupied and the amount
estate on which an easement of natural of the damage caused to the servient
drainage has been established. If he does estate.
impair, the dominant owner may ask for In case the right of way is limited to
the necessary passage for the cultivation of
80
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

the estate surrounded by others and for the proposed new location for it is farther and
gathering of its crops through the servient is not as convenient.
estate without a permanent way, the
indemnity shall consist in the payment of Right of way must be absolutely necessary
the damage caused by such encumbrance. The right cannot be claimed merely for the
This easement is not compulsory if convenience of the owner of the enclosed
the isolation of the immovable is due to the estate.
proprietor's own acts. (564a) Owner must show that the compulsory
easement is absolutely necessary for the
Art. 650. The easement of right of way shall normal enjoyment of his property. Even if
be established at the point least prejudicial necessary but it can be satisfied without
to the servient estate, and, insofar as imposing the servitude, the same should
consistent with this rule, where the distance not be imposed.
from the dominant estate to a public The easement can be established for the
highway may be the shortest. (565) benefit of a tenement with an inadequate
outlet, but not when the outlet is merely
Easement of right of way DEFINED! inconvenient.
Easement of right of way is the right
granted by law to the owner of an estate Isolation must not be due to the claimants own
which is surrounded by other estates act
belonging to other persons and without an If he constructs a permanent structure and
adequate outlet to a public highway to effectively blocks himself out from the
demand that he be allowed a passageway pubic highway, then he is stupid and he
throughout such neighboring estates after will not be granted an easement.
payment of the proper indemnity.
The easement must be established at the point
Requisites of the easment (based on de Leon) least prejudicial to the servient estate
1. Claimant must be an owner of enclosed
The shortest is not always the least
immovable or one with real right
prejudicial.
2. No adequate outlet to a public highway
3. Right of way must be absolutely necessary The criterion of least prejudicial shall be
4. The isolation must not be due to the observed although the distance may not
claimants own act be the shortest or is even the longest.
5. The easement must be established at the In other words, this is the TEST - the one
point least prejudicial where the way is shortest and will cause
6. There must be payment of proper the least damage should be chosen.
indemnity o But if these two circumstances do
not concur in a single tenement,
the way which will cause the least
Claimant must be an owner of enclosed damage should be used, even if it
immovable or one with real right would not be the shortest.
Not only the owner but any person who by Between a right of way
virtue of a real right may cultivate or use that will demolish a
an immovable, may demand a right of way. house and another one
A usufructuary may demand a right of way. which will merely cut
1. A mortgagee is not entitled to demand down a tree (yet is a
because it is necessary that the land longer route to the
be cultivated or used by virtue of a highway), the latter shall
right like that of a usufruct prevail.
2. A mere lessee cannot demand the The rule is different in eminent domain
legal servitude of way because his proceedings wherein the grantee of the
action is against the lessor who is power of eminent domain can choose as
bound to maintain him in the he pleases, as long as it is not capricious
enjoyment of the lease. However, if and wantonly injurious.
the lessee registers the lease in the
Registry of Property, it becomes a real Proper indemnity
right, and the lessee would then be The right can be acquired only after the
entitled to demand the right of way. proper indemnity has been paid.
If the passage is of continuous and
No adequate outlet to a public highway permanent nature (continuous for all the
Covers cases when there is absolutely no needs of the dominant estate), the
outlet or access, or even when there is indemnity consists of the value of the land
one, the same is not adequate (like when occupied plus amount of damages caused
its dangerous, very costly, etc) to the servient estate; and
The owner of the servient estate cannot If it is temporary (limited to the necessary
obstruct the use of the easement if the passage for the cultivation of the enclosed
81
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

estate and for the gathering of its crops 1. The estate is surrounded by other
through the servient estate), indemnity immovables and is without adequate
consists in the payment of the damage outlet to a public highway;
caused to the servient estate. 2. After payment of the proper indemnity
Even if the easement is for a laudable 3. The isolation was not due to the
purpose, there is still a need for proprietors acts; and
compensation. 4. The right of way claimed is at a point
BUT least prejudicial to the servient estate.
o Where the land was originally One whose land is enclosed by the lands
public land, and awarded by free of others at one acquires the right to
patent and was registered with an demand an easement of way to the
OCT and TCT with a reservation nearest street or road, but his failure to do
for a legal easement of a right-of- so does not constitute a renunciation of his
way in favor of the government, right nor does the right to demand such
just compensation need not be easement prescribe under Article 631. The
paid for the taking of a part right to demand a right of way is
thereof for public use as an imprescriptible. (Francisco v Paez)
easement of a right of way, unlike
if the land were originally private
property. (NIA v CA) Art. 651. The width of the easement of right
of way shall be that which is sufficient for
What are the kinds of easements of right of the needs of the dominant estate, and may
way? accordingly be changed from time to time.
1. Private, when it is established in favor of a (566a)
private person, such as the right granted in
Article 649; or Width of the passage
2. Public, when it is available in favor of the It is the needs of the dominant property
community or the public at large. which ultimately determine the width of the
passage, and these needs may vary from
Acquisition and extinguishment by prescription time to time.
The easement of right of way, being The easement established may thus be
discontinuous, cannot be acquired ny changed or modified from time to time as
prescription. It may be apparent, but it is the subsequent needs of the dominant
not a continuous easement. estate may demand.
De Leon gives some reasons why the
easement of right of way should be Art. 652. Whenever a piece of land acquired
considered as continuous in page 480 of by sale, exchange or partition, is
his book. surrounded by other estates of the vendor,
exchanger, or co-owner, he shall be obliged
Case doctrines to grant a right of way without indemnity.
Requisites of the easement (based on In case of a simple donation, the
Valdez v Tabisula; Lee, Villanueva; etc) donor shall be indemnified by the donee for
1. Claimant must be an owner of the establishment of the right of way. (567a)
enclosed immovable or one with real
right Art. 653. In the case of the preceding article,
2. Property is surrounded by other if it is the land of the grantor that becomes
immovables and has no adequate isolated, he may demand a right of way after
outlet to a public highway paying a indemnity. However, the donor
3. Proper indemnity must be paid shall not be liable for indemnity. (n)
4. The isolation is not the result of the
owner of the dominant estates own Where land of transferor or transferee enclosed
acts These two articles are exceptions to the
5. The right of way claimed is at the least requirement in Article 649 regarding the
prejudicial to the servient estate payment of indemnity.
6. To the extent consistent with the If the land transferred is surrounded by
foregoing rule, the distance from the other estates of the vendor, exchanger or
dominant estate to a public highway co-owner, the transferee is not obliged to
may be the shortest. pay indemnity for the easement as the
The onus of proving the existence of these consideration for the transfer is presumed
requisites lies on the owner of the to include the easement without the
dominant estate. indemnity.
Requisites na naman! (based on Mejorada o If the right of way becomes
v Vertudazo) useless for some reason or
another, it is no longer than
transferors fault. Apply Article
642.
82
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

o Article 652 is not applicable in desires. So, the dominant owner cannot
case of simple donation because ask for the return of the indemnity, if the
the donor receives nothing for his servient owner chooses to allow the
property. continuation of the easement.
If it is the land of the grantor that becomes The servient owner is not liable to pay
isolated, he may demand a right of way interest on the indemnity as the interest is
but shall be obliged to pay indemnity deemed to be payment for the use of the
unless the purchaser agreed to grant right easement.
without indemnity.
o The donor shall not be liable for Art. 656. If it be indispensable for the
indemnity as it is considered a construction, repair, improvement,
tacit condition of the donation. alteration or beautification of a building, to
carry materials through the estate of
Art. 654. If the right of way is permanent, the another, or to raise therein scaffolding or
necessary repairs shall be made by the other objects necessary for the work, the
owner of the dominant estate. A owner of such estate shall be obliged to
proportionate share of the taxes shall be permit the act, after receiving payment of
reimbursed by said owner to the proprietor the proper indemnity for the damage
of the servient estate. (n) caused him. (569a)

Responsibility for repairs and taxes Temporary easement of right of way

This applies if the right of way is This applies to a right of way which is
permanent. essentially temporary or transitory.
The servient owner retains ownership of It is sufficient that great inconvenience,
the passageway; hence, he pays all the difficulty, or expense would be
taxes. encountered if the easement was not
The dominant owner is liable for the granted.
necessary repairs and the proportionate Temporary easement is allowed only after
share of the taxes paid by the servient the payment of the proper indemnity.
owner, meaning the amount of taxes
corresponding to the portion on which the Case doctrine
easement is established. The installation of electric power lines is a
permanent easement not covered by
Art. 655. If the right of way granted to a Article 656. Article 656 deals only with the
surrounded estate ceases to be necessary temporary easement of passage.
because its owner has joined it to another (Preysler, Jr v CA)
abutting on a public road, the owner of the
servient estate may demand that the Art. 657. Easements of the right of way for
easement be extinguished, returning what the passage of livestock known as animal
he may have received by way of indemnity. path, animal trail or any other, and those for
The interest on the indemnity shall be watering places, resting places and animal
deemed to be in payment of rent for the use folds, shall be governed by the ordinances
of the easement. and regulations relating thereto, and, in the
The same rule shall be applied in absence thereof, by the usages and
case a new road is opened giving access to customs of the place.
the isolated estate. Without prejudice to rights legally
In both cases, the public highway acquired, the animal path shall not exceed
must substantially meet the needs of the in any case the width of 75 meters, and the
dominant estate in order that the easement animal trail that of 37 meters and 50
may be extinguished. (568a) centimeters.
Whenever it is necessary to
Extinguishment of compulsory easement of establish a compulsory easement of the
right of way right of way or for a watering place for
This applies to compulsory easement of animals, the provisions of this Section and
right of way. those of Articles 640 and 641 shall be
The two causes of extinguishment are: observed. In this case the width shall not
1. The joining of the isolated estate to exceed 10 meters. (570a)
another abutting a public road, and
2. Opening a new road which gives Right of way for the passage of livestock,
access to the estate. watering places
The new outlet must be adequate. The easements shall be governed by the
The extinguishment is not automatic ordinances, regulations, and in their
because the law says that the owner of the absence, usages and customs of the
servient estate may demand that the place.
easement be extinguished, if he so Animal path max width: 75 meters

83
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Animal trail max width: 37.5 meters

For drawing waters and for watering
animals max width: 10 meters Art. 659. The existence of an easement of
o In the last case, they can be party wall is presumed, unless there is a
imposed only for reasons of title, or exterior sign, or proof to the
public use in favor of a town or contrary:
barrio and only after payment of (1) In dividing walls of adjoining
the proper indemnity. buildings up to the point of common
elevation;
(2) In dividing walls of gardens or
SECTION FOUR EASEMENT OF yards situated in cities, towns, or in rural
PARTY WALL communities;
(3) In fences, walls and live hedges
Art. 658. The easement of party wall shall be dividing rural lands. (572)
governed by the provisions of this Title, by
the local ordinances and customs insofar When is the existence of a party wall
as they do not conflict with the same, and presumed?
by the rules of co-ownership. (571a) 1. In dividing walls of adjoining buildings up
to the point of common elevation;
Whats an easement of party wall? 2. In dividing walls of gardens or yards
It refers to all those mass of rights and situated in cities, towns, or in rural
obligations emanating from the existence communities; or
and common enjoyment of wall, fence, 3. In fences, walls and live hedges dividing
enclosures or hedges, by the owners of rural lands.
adjacent buildings and estates separated
by such objects. The legal presumption is juris tantum; it
may be rebutted by a title or exterior sign
What is a party wall, what is its nature? or any other proof showing that the entire
A party wall is a common wall which wall in controversy belongs exclusively to
separates two estates, built by common one of the adjoining property owners.
agreement at the dividing line such that it
occupies a portion of both estates on Case doctrine
equal parts. A wall separating two adjoining buildings,
It is a kind of forced co-ownership in which built on the land on which one of these
the parties are prt-owners. buildings stands, is not a party wall when
Each owner owns part of the wall but it there is a drain along its top to carry away
cannot be separated from the other the water from the roof and eaves of the
portions belonging to the others. building belonging to the owner of the land
An owner may use a party wall to the on which the wall is erected; and also
extent of the portion on his property. Not when a part of the wall is covered by the
all common walls or walls in co-ownership roof of the said building, the construction
are party walls. (A wall built on a co-owned of which demonstrates that the wall
lot is a common wall, not a party wall.) belongs exclusively to the owner of the
building of which it forms part. (Lao v Heirs
Party Wall Co-ownership of Alburo)
The shares of the co- Shares of the co-
owners cannot be owners can be divided Art. 660. It is understood that there is an
physically segregated or separated exterior sign, contrary to the easement of
but they can be physically. Before party wall:
physically identified. such division, a co- (1) Whenever in the dividing wall of
owner cannot point to buildings there is a window or opening;
any definite portion of (2) Whenever the dividing wall is,
the property as on one side, straight and plumb on all its
belonging to him. facement, and on the other, it has similar
No such limitation None of the co- conditions on the upper part, but the lower
owners may use the part slants or projects outward;
community property (3) Whenever the entire wall is built
for his exclusive within the boundaries of one of the estates;
benefit (4) Whenever the dividing wall
Any owner may free Partial renunciation is bears the burden of the binding beams,
himself from allowed floors and roof frame of one of the
contributing to the buildings, but not those of the others;
cost of repairs and (5) Whenever the dividing wall
construction of a party between courtyards, gardens, and
wall by renouncing all tenements is constructed in such a way that
his rights thereto.
84
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

the coping sheds the water upon only one charge by renouncing his part-ownership,
of the estates; except when the party wall supports a
(6) Whenever the dividing wall, building belonging to him. (575)
being built of masonry, has stepping
stones, which at certain intervals project Contribution to cost of repairs and construction
from the surface on one side only, but not of party walls
on the other; The part-owners of the party wall shall
(7) Whenever lands inclosed by contribute to the cost in the proportion to
fences or live hedges adjoin others which their respective interests.
are not inclosed. o But if the cause of the repairs is
In all these cases, the ownership of due to the fault of just one, then
the walls, fences or hedges shall be deemed he alone shall bear the costs.
to belong exclusively to the owner of the Any owner may free himself from
property or tenement which has in its favor contributing to the charge by renouncing
the presumption based on any one of these his rights in the party wall unless it actually
signs. (573) supports his building.
The renunciation will include the land on
Exterior signs rebutting presumption
which the party wall is constructed.
This article mentions some exterior signs
rebutting the presumption of a party wall. Art. 663. If the owner of a building,
The wall becomes the exclusive property supported by a party wall desires to
of the owner of the estate which has in its demolish the building, he may also
favor the presumption based on any of the renounce his part-ownership of the wall, but
above exterior signs. the cost of all repairs and work necessary
The enumeration is merely illustrative, and to prevent any damage which the
is not exclusive. demolition may cause to the party wall, on
The exterior signs may contradict each this occasion only, shall be borne by him.
other. In such case, the court shall decide (576)
the matter taking into consideration all the
circumstances. Demolish that building! Demolish!
o But in case of conflict between a An owner may also renounce his part
title evidencing ownership to a ownership of a party wall if he desires to
wall and an exterior sign, the demolish his building supported by the
former must prevail, for the latter wall.
merely gives rise to an inference He shall bear all the expenses of repairs
of ownership. and work necessary to prevent any
damage which the demolition may cause
Art. 661. Ditches or drains opened between to the party wall.
two estates are also presumed as common
to both, if there is no title or sign showing Art. 664. Every owner may increase the
the contrary. height of the party wall, doing at his own
There is a sign contrary to the part- expense and paying for any damage which
ownership whenever the earth or dirt may be caused by the work, even though
removed to open the ditch or to clean it is such damage be temporary.
only on one side thereof, in which case the The expenses of maintaining the
ownership of the ditch shall belong wall in the part newly raised or deepened at
exclusively to the owner of the land having its foundation shall also be paid for by him;
this exterior sign in its favor. (574) and, in addition, the indemnity for the
increased expenses which may be
Bitches or drains between two estates (hehe) necessary for the preservation of the party
The deposit of earth or debris on one side wall by reason of the greater height or
alone is an exterior sign that the owner of depth which has been given it.
that side is the owner of the ditch or the If the party wall cannot bear the
drain. increased height, the owner desiring to
Again, this is rebuttable. raise it shall be obliged to reconstruct it at
his own expense and, if for this purpose it
be necessary to make it thicker, he shall
Art. 662. The cost of repairs and give the space required from his own land.
construction of party walls and the (577)
maintenance of fences, live hedges,
ditches, and drains owned in common, shall Art. 665. The other owners who have not
be borne by all the owners of the lands or contributed in giving increased height,
tenements having the party wall in their depth or thickness to the wall may,
favor, in proportion to the right of each. nevertheless, acquire the right of part-
Nevertheless, any owner may ownership therein, by paying proportionally
exempt himself from contributing to this the value of the work at the time of the
85
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

acquisition and of the land used for its obstruct such view or make the same
increased thickness. (578a) difficult.
It necessarily includes the easement of
Increase the height of party wall! light.
An owner is given the right to increase the
height of a party wall subject to the Making of opening through a party wall
following conditions: A part-owner cannot exercise an act which
1. He must do so at his own expense; implies full ownership of the wall by
2. He must pay for any damage which making use of all its thickness.
may be caused thereby even if Remember, a window in the dividing wall
damage is temporary; of buildings is an exterior sign which rebuts
3. He must bear the cost of maintaining the presumption that the wall is a party
the portion added; and wall. One part-owner may not, therefore,
4. He must pay the increased cost of make any window or opening of any kind
preservation of the wall. thru a party wall without the consent of the
He shall be obliged to reconstruct the wall others.
at his expense if it is necessary so that the
wall can bear the increased height, and if Art. 668. The period of prescription for the
additional thickness is required, he shall acquisition of an easement of light and view
provide the space therefore from his own shall be counted:
land. (1) From the time of the opening of
The other owners cannot object to the the window, if it is through a party wall; or
work as long as the above conditions are (2) From the time of the formal
complied with. prohibition upon the proprietor of the
The owner who makes the addition adjoining land or tenement, if the window is
acquires ownership unless the other through a wall on the dominant estate. (n)
owners pay proportionately the value of
the work at the time of the acquisition (not Prescriptive period for acquisition of easement
the construction) and of the land used for of light and view
the walls increased thickness. The easement of light and view is either
positive or negative.
Art. 666. Every part-owner of a party wall When is it positive?
may use it in proportion to the right he may o It is considered positive if made
have in the co-ownership, without through a party wall or even if
interfering with the common and respective made on ones own wall, if the
uses by the other co-owners. (579a) window is on a balcony or
projection extending over the
Proportional use of party wall adjoining property.
If Tweet owns 2/3 of the party wall and o When a window is opened
Plurk owns 1/3, Tweet may use the wall through a party wall, an apparent
(like inserting a beam) up to 2/3 of its and continuous easement is
thickness, and Plurk can do the same up created from the time of such
to 1/3. opening. But there is no true
easement as long as the right to
SECTION FIVE EASEMENT OF prevent its use exists.
LIGHT AND VIEW o The adjoining owner can order
the window closed within 10
Art. 667. No part-owner may, without the years from the time of the
consent of the others, open through the opening of the window.
party wall any window or aperture of any When is it negative?
kind. (580) o It is considered negative if the
window is made through a wall on
WHAT IS AN EASEMENT OF LIGHT?!?! the dominant estate.
Easement of light (jus luminum) is the right o The 10-year period of prescription
to admit light from the neighboring estate commences from the time of the
by virtue of the opening of a window or the formal prohibition (instrument
making of certain openings. acknowledged by a notary public)
upon the adjoining owner.
WHAT IS AN EASEMENT OF VIEW?!?! o Before the expiration of the
Easement of view (jus prospectus) is the prescriptive period, the window
right to make openings or windows, to exists by mere tolerance of the
enjoy the view through the estate of adjoining owner who always
another and the power to prevent all retains the right to have it closed
constructions or works which would or to build an obstruction,
although the opening was made

86
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

more than 10 years after he 3. There must be an iron grating

decided to exercise his right. imbedded in the wall; and
The opening by Xyzal 4. There must be a wire screen.
was made in 1990 but When the wall becomes a party wall, a
he made a formal part-owner can order the closure of the
notarial demand opening because no part-owner may make
prohibiting Yeeyoo to an opening through a party wall without
obstruct the view only in the consent of the others. It can also
1994, Yeeyoo may still obstruct the opening unless an easement
demand the closure of of light has been acquired by prescription,
the window in 2001. in which case the servient owner may not
impair the easement.
Case doctrines
When the construction of windows and Case doctrine
balconies does not constitute an actual If a house consists of more than one story,
invasion of the rights of another, but is a each story may have the same openings
lawful exercise of an inherent right, the which are provided by law for one house.
easement of light and view is negative. The purpose of the law is to provide light to
(Fabie v Lichauco) the rooms and it is evident that the rooms
When a window is opened in a party wall, of the lower stories have a much need for
the express or implied consent of the part light as those of the top story. (Choco v
owner affords a basis for the acquisition of Santamaria))
a prescriptive title. When the house has been built, with two
When a window is opened in the wall of a meters of the dividing line (Art 670), no
neighbor, prescription commences to run other windows than those provided in this
from the date of the opening of the article may be opened in its walls. (Saez v
windows and ripens into title when the Figueras)
specified time has elapsed without
opoosition on the part of the owner of the Art. 670. No windows, apertures, balconies,
wall. (Cortes v Yu Tibo) or other similar projections which afford a
direct view upon or towards an adjoining
land or tenement can be made, without
Art. 669. When the distances in Article 670 leaving a distance of two meters between
are not observed, the owner of a wall which the wall in which they are made and such
is not party wall, adjoining a tenement or contiguous property.
piece of land belonging to another, can Neither can side or oblique views
make in it openings to admit light at the upon or towards such conterminous
height of the ceiling joints or immediately property be had, unless there be a distance
under the ceiling, and of the size of thirty of sixty centimeters.
centimeters square, and, in every case, with The nonobservance of these
an iron grating imbedded in the wall and distances does not give rise to prescription.
with a wire screen. (582a)
Nevertheless, the owner of the
tenement or property adjoining the wall in Art. 671. The distance referred to in the
which the openings are made can close preceding article shall be measured in
them should he acquire part-ownership cases of direct views from the outer line of
thereof, if there be no stipulation to the the wall when the openings do not project,
contrary. from the outer line of the latter when they
He can also obstruct them by do, and in cases of oblique view from the
constructing a building on his land or by dividing line between the two properties.
raising a wall thereon contiguous to that (583)
having such openings, unless an easement
of light has been acquired. (581a) Direct and oblique views
Article 760 requires a distance of:
Openings at height of ceiling joists to admit o For direct view, 2 meters
light o For oblique view, 60 cm
When the wall is not a party wall, the Article 761 provides the manner of
owner may make an opening for the measuring the distance.
purpose of admitting light and air, but not o For direct view from the outer
for view. The restrictions are the following: line of the wall when the openings
1. The size must not exceed 30 cm do not project; from the outer line
square; of the openings when they do
2. The opening must be at the height of project
the ceiling joists or immediately under o For oblique view from the
the ceiling; dividing line

87
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

An owner can build within the minimum minimum distance of 2 meters or 60 cm in

distance or even up to the dividing line 670 must be observed. If not, then its void.
provided no window is opened except as
provided in Article 669.
When windows are opened, without SECTION SIX DRAINAGE OF
observing the required legal distances, the BUILDINGS
adjoining owner has a right to have them
closed. Art. 674. The owner of a building shall be
The non-observance of the distances does obliged to construct its roof or covering in
not give rise to prescription. such manner that the rain water shall fall on
o The mere opening of the windows his own land or on a street or public place,
in violation of Article 770 does not and not on the land of his neighbor, even
give rise to the servitude by though the adjacent land may belong to two
prescription. or more persons, one of whom is the owner
o Its a negative easement of the roof. Even if it should fall on his own
because the window is through a land, the owner shall be obliged to collect
wall of the dominant estate and the water in such a way as not to cause
so prescription may still be damage to the adjacent land or tenement.
acquired after 10 years from the (586a)
time of notarial prohibition.
What is an easement of drainage of buildings?
Art. 672. The provisions of Article 670 are Easement of drainage of buildings is the
not applicable to buildings separated by a right to divert or empty the rain waters
public way or alley, which is not less than from the ones own roof or shed to the
three meters wide, subject to special neighbors estate either drop by drop or
regulations and local ordinances. (584a) through conduits.

Where buildings separated by a public way or Rainwater not to fall on land of another
alley This article does not really create a
The distance in 670 is not compulsory servitude, it merely regulates the use of
where there is a public way or alley ones own property by imposing on him the
provided that it is not less than 3 meters obligation to collect its rain waters so as
wide. not to cause damage to his neighbors,
even if he be a co-owner of the latter.
Case doctrine Its an exemption to Article 637 which
A private alley opened to the use of the obliges lower estates to receive the waters
general public falls within the provision of which naturally flow from higher estates.
Article 672.
Art. 675. The owner of a tenement or a piece
Art. 673. Whenever by any title a right has of land, subject to the easement of
been acquired to have direct views, receiving water falling from roofs, may build
balconies or belvederes overlooking an in such manner as to receive the water
adjoining property, the owner of the upon his own roof or give it another outlet
servient estate cannot build thereon at less in accordance with local ordinances or
than a distance of three meters to be customs, and in such a way as not to cause
measured in the manner provided in Article any nuisance or damage whatever to the
671. Any stipulation permitting distances dominant estate. (587)
less than those prescribed in Article 670 is
void. (585a) Easement to receive falling rainwater
This article deals not with a legal or
Where easement of direct view has been compulsory easement but with a voluntary
acquired easement to receive rain water falling from
The word title as used in Article 673 the roof of an adjoining building.
refers to any of the modes of acquiring It is an application of Article 629.
easements (contract, will, donation or
prescription). Art. 676. Whenever the yard or court of a
Whenever the easement of direct view has house is surrounded by other houses, and
been acquired by such title, there is it is not possible to give an outlet through
created a true easement, the owner of the the house itself to the rain water collected
servient estate cannot build thereon at less thereon, the establishment of an easement
than a distance of 3 meters from the of drainage can be demanded, giving an
boundary line. outlet to the water at the point of the
The distance may be increased or contiguous lands or tenements where its
decreased by stipulation of the parties egress may be easiest, and establishing a
provided that in case of decrease, the conduit for the drainage in such manner as

88
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

to cause the least damage to the servient The prohibitions cannot be altered by
estate, after payment of the property stipulations because of the underlying
indemnity. (583) public policy of safety.
Whut up, ang layo mo na! Go go go!
Easement giving outlet to rainwater where
house surrounded by other houses Art. 679. No trees shall be planted near a
The legal easement of drainage may be tenement or piece of land belonging to
demanded subject to the following another except at the distance authorized
conditions: by the ordinances or customs of the place,
1. There must be no adequate outlet to and, in the absence thereof, at a distance of
the rainwater because the yard or at least two meters from the dividing line of
court of a house is surrounded by the estates if tall trees are planted and at a
other houses; distance of at least fifty centimeters if
2. The outlet to the water must be at the shrubs or small trees are planted.
point where egress is easiest, and Every landowner shall have the
establishing a conduit for drainage; right to demand that trees hereafter planted
and at a shorter distance from his land or
3. There must be payment of proper tenement be uprooted.
indemnity. The provisions of this article also
apply to trees which have grown
SECTION 7. INTERMEDIATE spontaneously. (591a)
DISTANCES AND WORKS FOR
Planting of trees (wow!)
CERTAIN CONSTRUCTIONS AND
This article establishes a negative
PLANTINGS easement.
It provides the minimum distance of trees
Art. 677. No constructions can be built or
and shrubs from the boundary line.
plantings made near fortified places or
fortresses without compliance with the They shall be regulated first by local
conditions required in special laws, ordinances; and then by the customs of
ordinances, and regulations relating the place; and in default of both, this
thereto. (589) interesting article.
In case of violation, a landowner shall
Constructions and plantings near fortified have the right to demand the uprooting of
places the tree or shrub even if it has grown
This article establishes an easement in spontaneously.
favor of the State.
Art. 680. If the branches of any tree should
Art. 678. No person shall build any extend over a neighboring estate, tenement,
aqueduct, well, sewer, furnace, forge, garden or yard, the owner of the latter shall
chimney, stable, depository of corrosive have the right to demand that they be cut
substances, machinery, or factory which by off insofar as they may spread over his
reason of its nature or products is property, and, if it be the roots of a
dangerous or noxious, without observing neighboring tree which should penetrate
the distances prescribed by the regulations into the land of another, the latter may cut
and customs of the place, and without them off himself within his property. (592)
making the necessary protective works,
subject, in regard to the manner thereof, to Intrusions of branches or roots into neighboring
the conditions prescribed by such estates
regulations. These prohibitions cannot be In case of branches, the adjoining owner
altered or renounced by stipulation on the must first demand that they be cut-off by
part of the adjoining proprietors. the tree owner insofar as they spread over
In the absence of regulations, such the formers property. If the tree owner
precautions shall be taken as may be refuses, he may ask authority from the
considered necessary, in order to avoid any court.
damage to the neighboring lands or As to the roots, he may cut them off
tenements. (590a) himself if they penetrate into his land
without the necessity of giving notice to the
Construction of aqueduct, well, sewer, etc tree owner, because, by right of accession,
Constructions which by reason of their he has acquired ownership over them. It
nature or products are dangerous or actually constitutes a direct invasion on his
noxious must comply with the distances land (grabe naman.)
prescribed by local regulations and
customs of the place. Necessary protective Art. 681. Fruits naturally falling upon
works must also be built/done by the adjacent land belong to the owner of said
owner to avoid damage to neighbors. land. (n)

89
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Support is subjacent when the supported

Kung mahulog yung mangga ni Jhunjhun sa land is above and the supporting land is
lote ko, akin na ba yung mangga? beneath it.
Yes. But the falling must occur naturally. An owner, by virtue of his surface right,
So I have no right to pick fruits still on may make excavations on his land, but his
branches that extend over my land. right is subject to the limitation in Article
This is not based on occupation nor 684 that he shall not deprive any adjacent
accession, but by operation of law. land or building of sufficient lateral or
subjacent support.
SECTION 8. EASEMENT AGAINST Any stipulation or testamentary provision
NUISANCE allowing excavations that violate Article
684 is void. The limitation applies not only
Art. 682. Every building or piece of land is to existing buildings but also to future
subject to the easement which prohibits the constructions.
proprietor or possessor from committing The notice required in Article 687 is
nuisance through noise, jarring, offensive mandatory except where there is actual
odor, smoke, heat, dust, water, glare and knowledge of the proposed excavation.
other causes. The adjacent owner is entitled to injunctive
relief and to damages for violation of the
Art. 683. Subject to zoning, health, police provisions.
and other laws and regulations, factories
and shops may be maintained provided the CHAPTER 3
least possible annoyance is caused to the VOLUNTARY EASEMENTS
neighborhood.
Art. 688. Every owner of a tenement or piece
The Code considers the easement against of land may establish thereon the
nuisance as negative because the easements which he may deem suitable,
proprietor or possessor is prohibited to do and in the manner and form which he may
something which he could lawfully do were deem best, provided he does not
it not for the existence of the easement. contravene the laws, public policy or public
However, a nuisance involves any act of order. (594)
ormission which is unlawful. So, these two
articles are more of a restriction on the Owner of land may constitute easement
right of ownership than a true easement. Since easement involves an act of strict
dominium, only the owner or at least one
SECTION 9. - Lateral and Subjacent Support acting in his name and under his authority,
(n) may establish a voluntary easement.
However, a beneficial owner may establish
Art. 684. No proprietor shall make such
a temporary easement consistent with his
excavations upon his land as to deprive any
right as such and subject to termination
adjacent land or building of sufficient lateral
upon the extinguishment of the usufruct.
or subjacent support.
Voluntary easements not contractual
Art. 685. Any stipulation or testamentary
provision allowing excavations that cause Voluntary easements are not contractual in
danger to an adjacent land or building shall nature, they constitute the act of the
be void. owner.

Art. 686. The legal easement of lateral and Art. 689. The owner of a tenement or piece
subjacent support is not only for buildings of land, the usufruct of which belongs to
standing at the time the excavations are another, may impose thereon, without the
made but also for constructions that may be consent of the usufructuary, any servitudes
erected. which will not injure the right of usufruct.
(595)
Art. 687. Any proprietor intending to make
any excavation contemplated in the three Where property held in usufruct
preceding articles shall notify all owners of The owner of property in usufruct may
adjacent lands. create easements thereon without the
consent of the usufructuary provided the
Proprietor prohibited from making dangerous rights of the latter are not impaired.
excavations
Support is lateral when the supported and Art. 690. Whenever the naked ownership of
the supporting lands are divided by a a tenement or piece of land belongs to one
vertical plane. person and the beneficial ownership to
another, no perpetual voluntary easement

90
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

may be established thereon without the Art. 693. If the owner of the servient estate
consent of both owners. (596) should have bound himself, upon the
establishment of the easement, to bear the
Creation of perpetual voluntary easement cost of the work required for the use and
A usufructuary may impose on the estate preservation thereof, he may free himself
held in usufruct a temporary easement. from this obligation by renouncing his
Where the naked ownership and the property to the owner of the dominant
beneficial ownership of the estate belong estate. (599)
to different persons, and the easement is
perpetual (permanent right of way, etc), the Where servient owner bound himself to bear
consent of both the naked owner and the cost of maintenance of easement
beneficial owner is required. This article applies only where the owner
of the servient estate bound himself to
bear the cost of the work required for the
Art. 691. In order to impose an easement on use and preservation of the easement
an undivided tenement, or piece of land, the He is bound to fulfill the obligation he has
consent of all the co-owners shall be contracted in the same way that such an
required. owner, should he make use of the
The consent given by some only, easement, is bound to contribute to the
must be held in abeyance until the last one works necessary for the use and
of all the co-owners shall have expressed preservation of the servitude.
his conformity. The servient owner may free himself from
But the consent given by one of the his obligation by renouncing or
co-owners separately from the others shall abandoning his property to the dominant
bind the grantor and his successors not to owner.
prevent the exercise of the right granted. o The renunciation need not be
(597a) over the whole servient tenement,
but only on the portion thereof
Imposition of easement on undivided property affected by the easement (right of
The creation of a voluntary easement on way, etc). however, if the
property owned in common requires the easement affects the entire
unanimous consent of all the co-owners, servient estate (like natural
because it involves an act of alteration and drainage), then the renunciation
not merely an alienation of an ideal share must be total.
of a co-owner. o In any case, it cannot be tacit or
The consent may be given separately or implied; it must follow the form
successively. required by law for transmission
Once consent is given by a co-owner, the of ownership of real property.
same is binding upon him and his
successors unless his consent was
vitiated.
TITLE EIGHT
After the consent of the last of all of the co-
owners has been secured, it is not NUISANCE
necessary for him to give again his
consent. Art. 694. A nuisance is any act, omission,
establishment, business, condition of
Art. 692. The title and, in a proper case, the property, or anything else which:
possession of an easement acquired by (1) Injures or endangers the health
prescription shall determine the rights of or safety of others; or
the dominant estate and the obligations of (2) Annoys or offends the senses;
the servient estate. In default thereof, the or
easement shall be governed by such (3) Shocks, defies or disregards
provisions of this Title as are applicable decency or morality; or
thereto. (598) (4) Obstructs or interferes with the
free passage of any public highway or
Rules governing voluntary easementsano street, or any body of water; or
nga ba? (5) Hinders or impairs the use of
1. If created by title, such as contract, will, property.
etc, then by such title;
2. If created by prescription, by the form and What is the statutory definition of nuisance?
manner of possession of the easement Nuisance is used to refer either to the
(see Art 632); and harm caused or that which causes harm,
3. In default of the above, by the provisions or both
of the Civil Code on easement. Negligence is not an essential ingredient
of a nuisance but to be liable for a
nuisance, there must be resulting injury to
91
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

another in the enjoyment of his legal listener. Injury to a particular person in a

rights. peculiar position will not render the noise
Anything which: (IASOH) an actionable nuisance in the condition
1. Injures or endangers the health or of present living, noise seems inseparable
safety of others from the conduct of many necessary
2. Annoys or offends the senses occupations.
3. Shocks, defies or disregards decency The test to determine noise as nuisance is
or morality whether rights of property, health or
4. Obstructs or interferes with the free comfort are so injuriously affected by the
passage of any public highway or noise that the sufferer is subjected to a
street, or any body of water loss which goes beyond the reasonable
5. Hinders or impairs the use of property. limit imposed upon him by the condition of
living.
Distinguish nuisance from trespass The determining factor when noise alone
Nuisance consists of a use of ones own is the cause of complaint is not its intensity
property in such a manner as to cause or volume, but it is that the noise is of such
injury to the property or other right or character as to produce actual physical
interest of another, and generally results discomfort and annoyance to a person of
from the commission of an act beyond the ordinary sensibilities, rendering adjacent
limits of the property affected property less comfortable and valuable.
Trespass is a direct infringement of (AC Enterprises v Frabelle)
anothers right of property A negligent or intentional act may
Where there is no actual physical invasion constitute a nuisance. Where, after
of the plaintiffs property, the cause of complaint and notice of damage, the
action is for nuisance rather than trespass. defendant continues to offend and refuses
An encroachment upon the space about to correct or discontinue the nuisance, it is
anothers land but not upon the land itself intentional.
is a nuisance, and not a trespass.
In trespass, the injury is direct and Art. 695. Nuisance is either public or
immediate; in nuisance, it is consequential. private. A public nuisance affects a
community or neighborhood or any
Distinguish nuisance from negligence considerable number of persons, although
Nuisance Negligence the extent of the annoyance, danger or
Basis of Regardless of Want of care damage upon individuals may be unequal. A
breach of the degree of private nuisance is one that is not included
duty care or skill in the foregoing definition.
Violation An absolute A relative duty,
of duty, the the failure to use What is a public nuisance?
doing of an the degree of A public nuisance has been defined as
act which is care required o the doing of or the failure to do
wrongful in under particular something that injuriously affects
itself circumstances in safety, health or morals of the
connection with public, or
an act or o works some substantial
omission which is annoyance, inconvenience, or
not of itself injury to the public.
wrongful
Where the damage is the necessary What is a private nuisance?
consequence of what the defendant is A private nuisance has been defined as
doing, or is incident to the business itself one which violates only private rights and
or the manner in which it is conducted, the produces damage to but one or a few
law of negligence has no application, and personas, and cannot be said to be public.
the law of nuisance applies. Public Private
In fine, nuisance is wrongful in itself Affects Public at large, The individual
because of the injury caused regardless of or such of or a limited
the presence or absence of care, while them as may number of
negligence creates liability because of come in individuals only
want of proper care resulting to anothers contact with it
injury. Remedies Indictable Actionable,
either for their
Case doctrines abatement or
Noise becomes actionable only when it for damages, or
passes the limits of reasonable adjustment both
to the conditions of the locality and of the A nuisance may be both public and private
needs of the maker to the needs of the in character. Hence, there are mixed

92
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

nuisances. It may violate public rights to of hearing before a

the injury of many, while producing special tribunal whether
injury to private rights to any extent beyond such a thing
the injury to the public. constitutes a
nuisance
What is a nuisance per se?
Nuisance per se is an act, occupation, or Case doctrines
structure which unquestionably is a The operation of bus terminals is a
nuisance at all times and under any legitimate business which, by itself, cannot
circumstances, regardless of location or be said to be injurious to the rights of
surroundings. property, health, or comfort of the
It is that which affects the immediate safety community. Unless a thing is nuisance per
of persons and property. (Telmo v se, it may not be abated via an ordinance,
Bustamante) without judicial proceedings. (Lucena v
It is a nuisance of itself because of its JAC Liner)
inherent qualities, productive of injury or The abatement of a nuisance without
dangerous to life or property without judicial proceedings is possible only if it is
regard to circumstance. a nuisance per se. A gas station is not a
Example: A house of prostitution. nuisance per se or one affecting the
immediate safety of persons and property.
What is a nuisance per accidens? Hence, it cannot be closed down or
It is an act, occupation, or structure, not a transferred summarily to another location.
nuisance per se, but which may become a (Parayno v Jovellanos)
nuisance by reason of circumstances, Injury must not be merely perceived, but
location, or surroundings. must be factual. (Parayno)
Example: raising of pigs in a house within
city limits. What is the doctrine of attractive nuisance?
One who maintains on his premises
Nuisance per Nuisance per dangerous instrumentalities or appliances
se accidens of a character likely to attract children in
In The thing Depends upon its play, and who fails to exercise ordinary
terms becomes a location and care to prevent children from playing
of proof nuisance as a surroundings, the therewith or resorting thereto, is liable to a
matter of law manner of its child of tender years who is injured
Its existence conduct or other thereby, even if the child is technically a
need only be circumstances. trespasser in the premises.
proved in any Proof of the act The reason is that the condition or
locatlity, and its appliance in question although its danger
without consequences is is apparent, is so enticing to children of
showing necessary. tender years as to induce them to
specific It must be shown approach or use it.
damages, and by evidence to be The attractiveness is an implied invitation
the right to a nuisance under to such children
relief is the law. EXCEPTION: is not applicable to bodies of
established by water, artificial or natural in the absence of
averment and some unusual condition or artificial feature
proof of the other than the mere water and its location.
mere act. o A swimming pool is not a
In May be Even the nuisance.
terms summarily municipal o A tank of water from an ice plant
of abated under authorities, under is not a nuisance as well.
action the undefined their power to (Hidalgo case)
law of declare and abate o What if Jollibee is in the middle of
necessity nuisances, would the swimming pool?!
not have the right Exercise due diligence.
to compel the Tanggalin yung bubuyog
abatement of a na yan!
particular thing or
act as a nuisance Art. 696. Every successive owner or
without reasonable possessor of property who fails or refuses
notice to the to abate a nuisance in that property started
person alleged to by a former owner or possessor is liable
be maintaining or therefor in the same manner as the one who
doing the same at created it.
the time and place

93
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Generally, only the creator of a nuisance is of preliminary formal legal proceedings

liable for the damge resulting therefrom. and a judicial trial would result in defeating
However, since the injurious effect of a the beneficial object sought to be obtained.
nuisance is a continuing one, every Police power of the state includes the right
successive owner or possessor of property to destroy or abate by a summary
constituting a nuisance who fails or refuses proceeding whatever may be regarded as
to abate it, has the same liability as the a public nuisance, subject to constitutional
original owner. limitations.
But of course, the new owenr must have Property taken or destroyed for the
actual knowledge of the nuisance. purpose of abating a nuisance is not taken
for public use, and there is accordingly no
Art. 697. The abatement of a nuisance does obligation to make compensation for such
not preclude the right of any person injured taking.
to recover damages for its past existence.
Art. 700. The district health officer shall take
Are the remedies exclusive? care that one or all of the remedies against
No. a public nuisance are availed of.
The action to abate nuisance and the
action to recover damages are distinct Art. 701. If a civil action is brought by
remedies either or both of which the reason of the maintenance of a public
plaintiff may pursue at his election. nuisance, such action shall be commenced
by the city or municipal mayor.
The two remedies are concurrent and not
exclusive.
Art. 702. The district health officer shall
The owner of property abated as a determine whether or not abatement,
nuisance is not entitled to compensation without judicial proceedings, is the best
unless he can show that the abatement is remedy against a public nuisance.
unjustified.
What is the role of the district health officer and
Art. 698. Lapse of time cannot legalize any others with respect to public nuisance?
nuisance, whether public or private. The district health officer is charged with
the duty to see to it that one or all of the
General rule: The right to bring an action to remedies against a public nuisance are
abate a public or private nuisance is not availed of.
extinguished by prescription. Lapse of time Article 702 does not empower the district
cannot be relied upon to legalize a
health officer to abate a public nuisance to
nuisance, whether public or private.
the exclusion of all other authorities. His
Exception: See Art 631 (2) which expressly power is simply to determine whether or
prescribes that easements are not abatement, without judicial
extinguished by obstruction and non-use proceedings, is the best remedy against a
for ten years. (check book,P558) public nuisance.
The action must be commenced by the city
Art. 699. The remedies against a public
or municipal mayor. But a private person
nuisance are:
may also file an action if the public
(1) A prosecution under the Penal Code or
nuisance is especially injurious to him.
any local ordinance: or

(2) A civil action; or
(3) Abatement, without judicial proceedings. Art. 703. A private person may file an action
on account of a public nuisance, if it is
What are the remedies against a public specially injurious to himself.
nuisance?
1. Prosecution under the Penal Code or any Does a private person have a right to file action
local ordinance on account of a public nuisance?
2. A civil action Certainly!
3. Abatement, without judicial proceedings. A private person may also file a civil action
These are not exclusive but cumulative. if the public nuisance is especially injurious
All of them may be availed of by public to himself. In other words, the nuisance
officers, and the last two, by private becomes as to him a private nuisance
persons, if the nuisance is especially affecting him in a special way different
injurious to the latter. from that sustained by the public in
general.
Abatement without judicial proceedings In the absence of a showing of special or
The summary abatement of nuisance unusual damages, differing from those
without judicial proceedings is recognized suffered by the general public, a cause of
and established even in the absence of action does not arise in favor of a private
statute on the ground that the requirement individual

94
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

An action may be maintained by one who a. He commits no breach of the

is not the sole or even a peculiar sufferer, if peace nor causes
his grievance is not common to the whole unnecessary injury, and
public, but is a common misfortune of a b. The procedure for
number or even a class of persons. extrajudicial abatement of
public nuisance prescribed in
Art. 704. Any private person may abate a 704 is complied with
public nuisance which is specially injurious
to him by removing, or if necessary, by Art. 707. A private person or a public official
destroying the thing which constitutes the extrajudicially abating a nuisance shall be
same, without committing a breach of the liable for damages:
peace, or doing unnecessary injury. But it is (1) If he causes unnecessary injury; or
necessary: (2) If an alleged nuisance is later declared
(1) That demand be first made upon the by the courts to be not a real nuisance.
owner or possessor of the property to abate
the nuisance; Is there liability for damages in case of
(2) That such demand has been rejected; extrajudicial abatement?
(3) That the abatement be approved by the Yeeeeeeees!
district health officer and executed with the A private or public officer may be held
assistance of the local police; and liable for damages.
(4) That the value of the destruction does The two grounds of which are:
not exceed three thousand pesos. a. Unnecessary injury
b. The alleged nuisance is later
What are the conditions for extrajudicial declared by the courts to be
abatement of a public nuisance? not a real nuisance.
The party injured may remove, and if
necessary, destroy thing which constitutes BOOK III
the nuisance without committing a breach
of the peace, or doing unnecessary
DIFFERENT MODES OF
damage. ACQUIRING OWNERSHIP
What should be done?
1. Demand be first made upon the owner PRELIMINARY PROVISION
or possessor of the nuisance
2. Demand must have been rejected Art. 712. Ownership is acquired by
3. Abatement be approved by the district occupation and by intellectual creation.
health officer and executed with the Ownership and other real rights
assistance of the local police over property are acquired and transmitted
4. The value of the destruction does not by law, by donation, by estate and intestate
exceed P3000. succession, and in consequence of certain
contracts, by tradition.
Art. 705. The remedies against a private They may also be acquired by
nuisance are: means of prescription. (609a)
(1) A civil action; or
(2) Abatement, without judicial What is mode?
proceedings. Mode is the specific cause which produces
them as the result of the presence of a
Art. 706. Any person injured by a private special condition of things, of the capacity
nuisance may abate it by removing, or if and intention of persons, and of the
necessary, by destroying the thing which fulfillment of the requisites established by
constitutes the nuisance, without law.
committing a breach of the peace or doing
unnecessary injury. However, it is What is title?
indispensable that the procedure for Title is the juridical act, right or condition
extrajudicial abatement of a public nuisance which gives the means to their acquisition
by a private person be followed. but which in itself is insufficient to produce
them.
What are the remedies against a private
nuisance?
1. Civil action In a contract of sale, the contract is the title
2. Abatement, without judicial proceedings. and tradition, as a consequence of sale, is
the mode.
In abating a nuisance, a person may even Sometimes, the mode is at the same time
go to the extent of destroying the damn the title (as in with succession)
thing which constitutes the nusicance
provided: Mode Title
Directly and Serves merely to give
95
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

immediately produces the occasion for its 6. Art 1434

a real right acquisition or 7. Art 1456
existence
The cause The means Tradition as a mode of acquistion
Proximate cause Remote cause Tradition is a derivative mode of acquiring
Essence of the right The means whereby ownership and other real rights by virtue of
which is to be created that essence is which, there being intention and capacity
or transmitted transmitted on the part of the grantor and grantee and
the pre-existence of said rights in the
Contracts only constitute titles or rights to estate of the grantor, they are transmitted
the transfer or acquisition of ownership, to the grantee through a just title. (whut?)
while tradition or delivery is the mode of Requisites:
accomplishing the same. i. Pre-existence in the estate of the
grantor of the right to be
What are the different modes and titles of transmitted
acquiring ownership and other real rights? ii. Just cause or title for the
(OLDTIPS) transmission
1. Original modes or those independent of iii. Intention on the part of the
any pre-existing right of another person, grantor to grant and on the part of
namely: the grantee to acquire
a. Occupation (condition of iv. Capacity to transmit and to
being without known owner); acquire
and v. An act which gives it outward
b. Work which includes form, physically, symbolically or
intellectual creation (creation, legally
discovery, or invention) Purpose: non nudis pactis, sed traditione
2. Derivative modes or those based on a pre- dominia rerum transferuntur. Ownership is
existing right held by another person, transferred, among other means, by
namely: tradition. The delivery of a thing constitutes
a. Law (existence of required a necessary and indispensable requisite
conditions) for the purpose of acquiring the ownership
b. Donation (contract of parties) of the same by virtue of a contract.
c. Succession, estate and Kinds:
intestate (death) a. Real tradition
d. Tradition, as a consequence b. Constructive tradition
of certain contracts (contract i. Symbolic
of the parties), and ii. Tradition by public
e. Prescription (possession in instrument
the concept of owner) iii. Traditio longa manu
iv. Tradition brevi
The derivative modes are modes both for manu
the acquisition and transmission of v. Tradition
ownership and other real rights. The constitutum
transmission may involve a right in its possessorium
entirety, or only a part thereof (pledge, c. Quasi tradition
mortgage, usufruct). d. Tradition by operation of law
Registration is not a mode of acquiring
ownership, and other real rights but only a What do you actually deliver?
means of confirming the fact of their legal Ownership, possession and control of the
existence with notice to the world at large. subject matter.

Law as a mode of acquisition? What if the vendor points to the vendee a

When the Civil Code speaks of law as a certain house which he already sold to the
mode of acquisition, it refers to it as a vendee, but there are security guards roaming
distinct mode or to those cases where the around the lot?
law, independent of the other modes, No tradition. (Ask Jaymie Reyes.)
directly vest ownership of a thing in a
person once the prescribed conditions or Case doctrines
requisites are present or complied with. A stranger to the succession of a dead
Examples: person cannot conclusively claim
1. Hidden treasure ownership over the subject lot on the sole
2. Art 445 basis of the waiver document which
3. River beds (Art 461) neither recites the elements of either a
4. Art 466 sale, or a donation, or any other derivative
5. Art 681 mode of acquiring ownership. (Acap v CA)

96
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

An affidavit not accompanied by any Requires an intent to Concept of mere

instrument showing the sale between a acquire ownership holder
purported vendor and vendee is not a May not take place May exist without
basis of ownership. (Heirs of dela Cruz v without some form of occupation
Heirs of Quintos) possession
For lands of public domain, in order to Short duration Generally of longer
acquire it by prescription, there must be a duration
declaration of the State that its alienable By itself, cannot lead May lead to another
and disposable and a positive act that to another mode of mode, which is
states that it is no longer needed for public acquisition prescription
use. Only at that point will the counting for
prescription start. (Heirs of Malabanan) What are the ways by which occupation may
be effected?
TITLE ONE - OCCUPATION 1. By hunting and fishing
2. By finding of movables which never had
Art. 713. Things appropriable by nature any owner
which are without an owner, such as 3. By finding of movables which have been
animals that are the object of hunting and abandoned by the owner, and
fishing, hidden treasure and abandoned 4. By finding of hidden treasure
movables, are acquired by occupation. (610)
What about wild animals?
What is the concept of occupation? They are possessed only while they are
1. Defined as the appropriation of things under ones control.
appropriable by nature which are without
an owner. When is a thing abandoned, lost or taken by
2. The seizure of things corporeal which have force?
no owner with the intention of acquiring the A thing is considered abandoned when the
ownership thereof. spes recuperandi (expectation to recover)
is gone and the animo revertendi (intention
What are the requisites of occupation? to have it returned) is finally given up by
1. Seizure of a thing the owner.
2. Must be corporeal personal property A thing has been lost or taken by force is
3. Must be susceptible of appropriation by not ipso facto converted into a res nullius
nature so as to belong to the first person who
4. Must be without an owner takes possession of the same without the
5. Must be an intention to appropriate necessity of proving the mode of his
6. Requisites or conditions laid down by law acquisition and it may thus be recovered
must be complied with by the original owner.
What constitutes seizure? Art. 714. The ownership of a piece of land
It is sufficient that there is an act of taking cannot be acquired by occupation. (n)
possession, material holding not being
essential as long as the possessor Land is not included among things that can
considers the thing as subjected to his be the object of occupation the reason is
control or disposition that when the land is without an owner, it
The thing must be corporeal personal pertains to the state.
property without known owner (res nullius) But, what about abandoned private land?
or abandoned by the owner. res
communes are not appropriable by nature. Art. 715. The right to hunt and to fish is
The must be an intent to acquire regulated by special laws. (611)
ownership, otherwise, the seizure would
not be appropriation in the legal sense, but Do I have a right to hunt and fish?
mere material holding. No.
Strictly speaking, no one has a right to
Occupation Possession
hunt or fish.
Mode of acquiring Merely raises the
The privilege to hunt or fish, however, may
ownership presumption of
be granted and regulated by law.
ownership when it is
exercised in the
Art. 716. The owner of a swarm of bees shall
concept of owner
have a right to pursue them to another's
Corporeal personal Any property
land, indemnifying the possessor of the
property
latter for the damage. If the owner has not
Requires that the May refer to property
pursued the swarm, or ceases to do so
object be without an owned by somebody
within two consecutive days, the possessor
owner
of the land may occupy or retain the same.

97
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

The owner of domesticated animals shall be sold at public auction eight days
may also claim them within twenty days to after the publication.
be counted from their occupation by Six months from the publication
another person. This period having expired, having elapsed without the owner having
they shall pertain to him who has caught appeared, the thing found, or its value, shall
and kept them. (612a) be awarded to the finder. The finder and the
owner shall be obliged, as the case may be,
This article talks of domesticated, not to reimburse the expenses. (615a)
domestic animals.
With respect to domestic animals, he can Art. 720. If the owner should appear in time,
claim them even beyond twenty days from he shall be obliged to pay, as a reward to
their occupation unless there is the finder, one-tenth of the sum or of the
abandonment on his part. price of the thing found. (616a)
This article does not apply to a case where
a person has found a domestic animal and See codal for rules. Fairly simple.
kept it for a number of years not knowing This article is based on the fact that one
its owner. who lost his property does not necessarily
A domesticated animal which has not abandon it. If there is no abandonment,
strayed or been abandoned cannot be the lost thing has not become res nullius.
acquired by occupation by a person to Paragraph 4 contemplates implied
whose custody it was entrusted abandonment.
The periods of two days and twenty days
are not periods of limitation, but conditions Title II. - INTELLECTUAL CREATION
precedent to recovery.
Art. 721. By intellectual creation, the
Art. 717. Pigeons and fish which from their following persons acquire ownership:
respective breeding places pass to another (1) The author with regard to his
pertaining to a different owner shall belong literary, dramatic, historical, legal,
to the latter, provided they have not been philosophical, scientific or other work;
enticed by some article of fraud. (613a) (2) The composer; as to his musical
composition;
This article does not refer to wild pigeons (3) The painter, sculptor, or other
and fish in a state of liberty or that live artist, with respect to the product of his art;
naturally independent of man. Their (4) The scientist or technologist or
occupation is regulated by Art 715. any other person with regard to his
discovery or invention. (n)
What is contemplated here are pigeons
and fish considered as domesticated
Art. 722. The author and the composer,
animals subject to the control of man in
mentioned in Nos. 1 and 2 of the preceding
private breeding places.
article, shall have the ownership of their
The pigeons and fish must change their creations even before the publication of the
breeding place to another belonging to a same. Once their works are published, their
different owner. rights are governed by the Copyright laws.
Unless enticed by some artifice or fraud, The painter, sculptor or other artist
the shall belong to the owner of the shall have dominion over the product of his
breeding place to which they shall have art even before it is copyrighted.
transferred. The scientist or technologist has
the ownership of his discovery or invention
Art. 718. He who by chance discovers even before it is patented. (n)
hidden treasure in another's property shall
have the right granted him in article 438 of Art. 723. Letters and other private
this Code. (614) communications in writing are owned by
the person to whom they are addressed and
Art. 719. Whoever finds a movable, which is delivered, but they cannot be published or
not treasure, must return it to its previous disseminated without the consent of the
possessor. If the latter is unknown, the writer or his heirs. However, the court may
finder shall immediately deposit it with the authorize their publication or dissemination
mayor of the city or municipality where the if the public good or the interest of justice
finding has taken place. so requires. (n)
The finding shall be publicly
announced by the mayor for two Art. 724. Special laws govern copyright and
consecutive weeks in the way he deems patent. (429a)
best.
If the movable cannot be kept Title III. - DONATION
without deterioration, or without expenses
which considerably diminish its value, it
CHAPTER ONE
98
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

NATURE OF DONATIONS Not enough that the act is gratuitous, there

must be an intent to benefit the donee.
Art. 725. Donation is an act of liberality The acceptance or consent of the donee is
whereby a person disposes gratuitously of required because no once can be obliged
a thing or right in favor of another, who to receive a benefit against his will.
accepts it. (618a)
Case doctrines
Concept of donation The essential elements of donation are as
In its generic sense, the term donation follows:
includes all forms of gratuitous o Essential reduction of the
dispositions. patrimony of the donor
The donation the article speaks of and o Increase in the patrimony of the
which is governed by Title Three is the donee
donation proper or the true (or real) o The intent to do an act of liberality
donation, or ordinary donation. or animus donandi (Heirs of
Florencio v Heirs of de Leon)
What is the nature and effect of donation? In order that the donation of an immovable
Although Art 725 defines donation as an property may be valid, the deed of
act, it is really a contract, with all the donation must be made in a public
essential requisites of a contract. document. The acceptance must be in a
It falls under contracts of pure public document as well. (Heirs of
beneficence, the consideration being the Florencio)
mere liberality of the benefactor. Registration of the deed in the Office of the
The Civil Code considers donation not RD or in the Assessors Office is not
among the contracts that transfer necessary for it to be considered valid and
ownership but as a particular mode of official. Registration does not vest title. The
acquiring and transmitting ownership. necessity of registration comes into play
As a mode of acquiring ownership, only when the rights of third persons are
donation results in an effective transfer of affected. Furthermore, the heirs are bound
title over the property from the moment the by the deed of contracts executed by their
donor is made aware of the acceptance by predecessors-in-interest. (Heirs of
the donee, provided that the donee is not Florencio)
disqualified or prohibited by law from A quitclaim is not a donation where those
accepting the donation. who executed the same merely
Once accepted, it is generally considered acknowledged the ownership of and better
irrevocable, and the donee becomes right over the lot by other persons. (Heirs
owner of property, except: of Reyes v Calumpang)
1. on account of officiousness, Acceptance is necessary in a donation.
2. failure of the donee to comply with the This applies to all kinds of donations
charge imposed on the donation, because the law does not make any
3. or ingratitude. distinction. A donation mortis causa takes
The effect of donation is to reduce the effect only after the death of the donor,
patrimony or asset of the donor and to consequently it is only after the latters
increase that of the donee. Hence, the death that its acceptance maybe made.
giving of a mortgage or any other security (Vita v Montanano)
does not constitute a donation. Prudent thing to do when drafting deeds of
donation: Place an acceptance clause. So,
Requisites of donation if court considers it inter vivos, then it
1. Donor must have capacity to make the would have been accepted. If court
donation of a thing or right considers it mortis causa, then the clause
2. Donative intent (animus donandi) or intent would be a mere superfluity, still open to
to make the donation out of liberality to the acceptance of the donee upon the
benefit the donee death of the donor. (Atty Abrenica)
3. There must be delivery, whether actual or The purpose of the formal requirement for
constructive acceptance of a donation is to ensure that
4. Donee must accept or consent to the such acceptance is duly communicated to
donation. the donor. The actual knowledge by the
donor of the construction and existence of
In certain donations, the form prescribed the school building pursuant to the
by law must be followed (See Art 748-749) condition of the donation fulfills the legal
The subject matter of a donation may be a requirement that the acceptance of the
thing or right. A person may be a donee donation by the donee be communicated
although he is incapacitated to enter into a to the donor. (Republic v Silim)
contract if he is not specially disqualified
by law to accept donations.
99
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Art. 726. When a person gives to another a What about gratuities and pensions?
thing or right on account of the latter's While technically a gratuity is different from
merits or of the services rendered by him to a donation, in substance, they are the
the donor, provided they do not constitute a same.
demandable debt, or when the gift imposes A gratuity is similar to a pension and is
upon the donee a burden which is less than essentially remunerative donation.
the value of the thing given, there is also a
donation. (619)
Tell me more about modal donations
What are the kinds of donation? In a modal donation, a burden (which is
1. As to taking effect: necessarily future) less than the value of
a. Inter vivos or that which the gift is imposed upon the donee.
takes effect during the
If the burden is considered the equivalent
lifetime of the donor
of the thing or right given, then its an
b. Moris causa or that which
onerous donation.
takes effect upon the death
of the donor The burden may consist in a real or
c. Propter nuptias or that by personal charge which is capable of being
reason of marriage valued in terms of money.
2. As to consideration
a. Pure or simple; or that the What are donations with mixed features?
cause of which is the pure Strictly speaking, remuneratory donations
liberality of the donor in are those which are given on account of
consideration of the donees services rendered by the donee to the
merits donor.
b. Remuneratory or Modal donations are conditional only in the
compensatory; or that which sense that a burden, charge, condition or
is given out of gratitude on limitation is imposed y the donor but the
account of the services burden is not technically a condition in the
rendered by the donee to the sense of an uncertain event upon which
donor, provided they do not the effectitivy or extinguishment of
constitute a demandable donation is made to depend for it is really
debt a mere obligation imposed by the donor
c. Modal or that which imposes upon the donee as a consideration
upon the donee a burden Actually, a modal donation has dual
(services to be performed in nature, it is partly onerous and partly
the future) less than the simple the portion equivalent to the
value of the gift burden is onerous and is governed by the
d. Onerous or that the value of rules on obligations and contracts, while
which is considered the the portion exceeding the value of the
equivalent of the burdens imposed, is simple and must
consideration for which it is follow the form of donations.
given, or that made for a
valuable consideration, and Harry donates to Ron a parcel of land worth
is thus governed by the rules 300 galleons2 but Ron has to give another
on oblicon parcel of land or perform some service worth
3. As to effectivity or extinguishment 100 galleons, the transaction is onerous as the
a. Pure 100 galleons which must be in the form of a
b. Conditional contract of barter or exchange, and simple as
c. With a term to the 200 galleons which must follow the form
of donations.
Tell me more about remuneratory donations
In this kind of donation, the motivating Case doctrines
cause is gratitude, acknowledgment of a An onerous donation is that which imposes
favor, a desire to repay for past services upon the donee a reciprocal obligation, or
A donation given for future services cannot to be precise, this is the kind of donation
be remuneratory made for a valuable consideration, the
It is necessary that the past services do cost of which is equal to or more than the
not constitute a demandable debt thing donated. (CJ Yulo v Roman Catholic
o A debt is demandable when it can be Bishop of San Pablo)
legally demanded or enforced by the
donee against the donor who has thus
an obligation to pay it. But a debt that 2
has been renounced is not a As of July 2006, the galleon-dollar exchange rate
demandable debt. was 1:16.72. It hasnt gone below 1:15 ever since.
Wala lang, boring ng property eh. Harry Potter na
lang.
100
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Since onerous donations are governed by the donee, unless the donor provides
the rules of contracts, the prescription otherwise. (n)
period is 10 years (based on a written
contract), and not the 4-year period based Inter vivos Mortis causa
on Article 764 (revocation must be brought Takes effect during Takes effect upon the
within 4 years from the non-compliance of the lifetime of the death of the donor
the conditions of the donation). (De Luna v donor, independently testator, so that
Abrigo) of his death, even if nothing is conveyed to
Remuneratory donation is one where the the actual execution or acquired by the
donee gives something to reward past or may be deferred until donee until said death
future services or because of future said death
charges or burdens, when the value of Made out of the Made in
said services, burdens or charges is less donors pure contemplation of his
than the value of the donation. (De Luna -> generosity death without the
this definition seems wrong as it includes intention to lose the
future charges, which are necessarily thing or its free
modal) disposal in case of
survival
Valid if the donor Void should the donor
Art. 727. Illegal or impossible conditions in survives the donee survive the donee
simple and remuneratory donations shall be Must follow formalities Must follow formalities
considered as not imposed. (n) of donations for the validity of a
will, otherwise void
Whats the effect of illegal or impossible Accepted by the Accepted only after
conditions? donee during his the donors death
Under Article 727, the illegal or impossible lifetime
condition in a simple or remuneratory Cannot be revoked Always revocable at
donation would be deemed not imposed except for grounds any time and for any
following the rule on testamentary provided by law (See reason before the
dispositions. The donation will be 760, 765) donors death
considered as simiple. (revocable ad nutum
If the donation is onerous (or modal, as to at the discretion of the
its onerous portion), the illegal or grantor)
impossible condition shall render it void. Right to dispose of Right is retained by
Being contractual in nature, the rule the property is the donor while he is
applicable would be that found in Article completely conveyed still alive
1183 (check codal, if divisible, only to the donee
condition will be void) Subject to donors tax Subject to estate tax

Case doctrine
The prohibition in the deed of Designation given to donations not conclusive
donation against the alienation of the Did the donor intend to transfer ownership
property for 100 years should be of the property donated upon the
declared as an illegal or impossible execution of the donation? If yes, then it is
condition within the contemplation of inter vivos. If not, then, it is merely mortis
Article 727. Consequently, such causa.
condition shall be considered as not To take effect at the death of the creditor
imposed. No reliance may accordingly does not automatically make it mortis
be placed on said prohibitory causa. Such statements must be
paragraph in the deed of donation. construed with the rest of the instrument.
(Archbishop of Manila v CA)
Donations to be delivered after the donors
Art. 728. Donations which are to take effect death
upon the death of the donor partake of the A distinction must be made between the
nature of testamentary provisions, and shall actual donation and the execution thereof
be governed by the rules established in the That the donation is to have effect during
Title on Succession. (620) the lifetime of the donor does not mean
that the delivery of the property must be
Art. 729. When the donor intends that the made during his life.
donation shall take effect during the lifetime Article 729 speaks of donations in
of the donor, though the property shall not
praesenti which take effect during the
be delivered till after the donor's death, this
lifetime of the donor but the property shall
shall be a donation inter vivos. The fruits of
be delivered after the donors death.
the property from the time of the
Such are inter vivos although the subject
acceptance of the donation, shall pertain to
matter is not delivered at once, or the

101
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

delivery is to be made post mortem, which passed to the donees and donation was
is a simple matter of form and does not already effective during the donors
change the nature of the act. lifetime. (Gestopa)
The fruits shall belong to the donee from o Reiterated in Alejandro v
the time of acceptance unless otherwise Geraldez: Condtion that donees
provided by the donor. cannot sell during donors lifetime
to a third person the donated
Instances property implies immediate
passage of ownership and,
Why is it important to make a distinction therefore donation is inter vivos.
between inter vivos and mortis causa? The reservation of lifetime usufruct
The distinction between a transfer inter indicates that the donor intended to
vivos and mortis causa is important as the transfer the naked ownership over the
validity or revocation of the donation properties, thus making it inter vivos.
depends upon its nature. (Gestopa)
If the donation is inter vivos, it must be Factors in determining whether a donation
executed and accepted with the formalities is one of mortis causa:
prescribed by Articles 748 and 749, except 1. It conveys no title or ownership to the
when it is onerous in which case the rules transferee before the death of the
on contracts apply. transferor; or what amounts to the
If it is mortis causa, the donation must be same thing, that the transferor should
in the form of a will, with all the formalities retain the ownership (full or naked)
for the validity of wills, otherwise it is void and control of the property while alive;
and cannot transfer ownership. Moreover, 2. The before his death, the transfer
mortis causa can be revoked any time should be revocable by the transferor
before the death of the donor. (Ganuelas v at will, ad nutum; but revocability may
Cawed) be provided for indirectly by means of
a reserved power in the donor to
What clauses are found in a deed of donation? dispose of the properties conveyed;
1. Habendum or warranty clause and
(wherein grantor transfers 3. That the transfer should be void if the
ownership) transferor should survive the
2. Redendum or reservation clause transferee (Maglasang v Heirs of
(wherein grantor reserves Corazon Cabatingan)
something new to himself) One of the decisive characteristics of a
3. Acceptance clause donation mortis causa is that the transfer
should be considered void if the donor
Case doctrines should survive the donee (Maglasang)
It is a settled rule that the title given to a Donations mortis causa must be executed
deed of donation is not the determinative in accordance with the requisites on
factor which makes the donation inter solemnities of wills and testaments under
vivos or mortis causa. Articles 805 and 806 of the Civil Code
In case of doubt, the conveyance should
be deemed donation inter vivos rather than Art. 730. The fixing of an event or the
mortis causa, in order to avoid uncertainty imposition of a suspensive condition, which
as to the ownership of the property subject may take place beyond the natural
of the deed. (Puig v Penaflorida but see expectation of life of the donor, does not
book which cites the same case but says destroy the nature of the act as a donation
the opposite) inter vivos, unless a contrary intention
Donations inter vivos are immediately appears. (n)
operative, even if the actual execution may
be deferred until the death of the donor. Donation inter vivos subject to suspensive
Mortis causa, nothing is conveyed to the condition
grantee and nothing is acquired by the This article contemplates a situtation
latter, until the death of the grantor- where the donor intends the donation to
testator, the disposition being until then take effect during his lifetime but he
ambulatory and not final. (Puig) imposes suspensive condition which may
Acceptance clause is a mark that the or may not take place beyond his lifetime.
donation is inter vivos. Acceptance is a The fact that the event happens or the
requirement for donations inter vivos. condition is fulfilled after the donors death
Donations moris causa are not required to does not change the nature of the act as a
be accepted by the donees during the donation inter vivos.
donors lifetime. (Gestopa v CA) The effect of the fulfillment of the
A limitation on the right to sell during the suspensvie condition is retroactive to the
donors lifetime implied that ownership had making of the donation.

102
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

EXCEPTION: when the donor really equivalent to the equitable value of the
intended that the donation should take services received by the donor.
effect after his death. Thus, mortis causa. The remuneratory donations referred to in
Article 733 are the modal donations or
Art. 731. When a person donates those which impose upon the donee a
something, subject to the resolutory burden which is less than the value of the
condition of the donor's survival, there is a thing given as regards that portion which
donation inter vivos. (n) exceeds the value of the burden, it shall be
governed by the provisions on donations.
Donation inter vivos subject to a resolutory There is no burden imposed on
condition remuneratory donations. If a burden is
In these cases, the ownership of the imposed, it becomes onerous as regards
donated property is immediately the value of the burden.
transferred to the donee upon perfection of
the donation once acceptance by the Case doctrines
donee is made known to the donor. As onerous donations are governed by the
A donation subject to a resolutory rules on contracts, for there to warrant a
condition takes effect immediately but shall revocation of the donation, there must be a
become inefficacious upon the happening substantial breach of the conditions in the
of the event which constitutes the deed. Mere casual breaches will not
condition. warrant revocations. (CJ Yulo v RC
Even if the donation is subject to the Bishop)
resolutory condition of the donors survival, Considering that the donees acts did not
the donation is still inter vivos. detract from the very purpose for which the
o I will donate this land to you, but if donation was made but precisely to
I survive World War III, I will get it achieve such purpose (of the donation), a
back. If I survive World War III, lack of prior written consent of the donor
the donation is rescinded. If I (which was a condition of the donation)
dont make it, then it continues in would only constitute casual breach of the
effect. deed. (CJ Yulo)

Art. 732. Donations which are to take effect Art. 734. The donation is perfected from the
inter vivos shall be governed by the general moment the donor knows of the acceptance
provisions on contracts and obligations in by the donee. (623)
all that is not determined in this Title. (621)
Perfection of donation
Art. 733. Donations with an onerous cause There is no donation without acceptance
shall be governed by the rules on contracts by the donee.
and remuneratory donations by the Acceptance is indispensable because
provisions of the present Title as regards nobody is obliged to receive a benefit
that portion which exceeds the value of the against his will.
burden imposed. (622) Its absence makes the donation null and
void.
Rules governing onerous donations or onerous The acceptance must be made during the
portions of donations
lifetime of the donor and the donee.
This article makes the rules of contracts
Perfection takes place, not from the time of
directly applicable to onerous donations
acceptance by the donee, but from the
and to remuneratory donations as to the
time it is made known, actual or
onerous portion thereof
constructively, to the donor.
Onerous donations are donations for a
If the donation and acceptance are in the
valuable consideration. They include those
same public instrument, signed by both
purely onerous or those in which the
and in the presence of witnesses, the
consideration is considered the equivalent
donation is deemed already perfected
of the property donated and the modal but
inasmuch as knowledge of the acceptance
only as regards that portion thereof
is established by the instrument itself.
considered the equivalent of the value of
If acceptance was made in a separate
the burden imposed.
instrument, there must be proof that a
Remuneratory donations are true or simple
formal notice of such acceptance was
donations because the consideration is
received by the donor, and in case the
really the liberality of the donor since the
donation involves immovable property,
services rendered by the donee do not
noted in both the deed of donation and the
constitute a recoverable debt. However,
separate instrument embodying the
the special rules on revocation should not
acceptance. (See Art 749)
apply to the portion of the donation
What if there is revocation?
103
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

If the donor revokes the donation before o Neither spouse may donate any
learning of the acceptance by the donee, community property nor conjugal
there is no donation. partnership property without the
But once it is perfected, it cannot be consent of the other, except
revoked without the consent of the donee moderate donations for charity or
except: on occasion of family rejoicing or
1. Inofficiousness (Art 760) family distress.
2. Failure of the donee to comply with
the charges imposed in the donation Can corporations make donations?
(Art 764) Yes. But they cant give donations to aid
3. Ingratitude (Art 765) any political party or candidate or for
purposes of partisan political activity.
Is registration necessary?
As between the parties to the donation and Who are incapacitated to donate?
their assigns, it is not needed for its validity 1. Minors
and efficacy. (But it must be in a public 2. Insane or demented persons
document for immovables!) 3. Deaf-mutes who do not know how to write
But for third parties to be bound, there 4. Corporations (with regard to giving
must be registration. donations to aid any political party)
5. Guardians and trustees (with regard to
Case doctrines property entrusted to them)
The purpose of the formal requirement for 6. Spouses (to each other, except moderate
gifts)
acceptance of a donation is to ensure that
7. A spouse (to others without the consent of
such acceptance is duly communicated to
the other spouse, except moderate
the donor. The actual knowledge by the
donations)
donor of the construction and existence of
the school building pursuant to the
condition of the donation fulfills the legal
Art. 736. Guardians and trustees cannot
requirement that the acceptance of the
donate the property entrusted to them. (n)
donation by the donee be communicated
to the donor. (Republic v Silim)
Donation by a guardian or trustee of wards
property
CHAPTER 2 Generally, guardians and trustees cannot
PERSONS WHO MAY GIVE OR RECEIVE A be donors of their wards properties for the
DONATION simple reason that they are not the owners
of the same.
Art. 735. All persons who may contract and Exception: With respect to the trustee,
dispose of their property may make a donation is permitted notwithstanding that
donation. (624) the trustee receives nothing in exchange
directly, if the donation is onerous and is
Capacity of donor to contract and dispose of beneficial to the beneficiary.
property
The donor must have both the capacity to Art. 737. The donor's capacity shall be
contract and the capacity to dispose of his determined as of the time of the making of
property in order that he may make a the donation. (n)
donation.
Those who cannot give consent to a Capacity of donor at time of making the
donation
contract cannot be donors; and donation
made by one who does not have the free The donation is perfected from the
disposal of the thing donated and to moment the donor knows of the
alienate it shall not be valid. acceptance by the donee.
It is possible, however, for a person to However, this article seems to imply that
have capacity to contract but not the the donors capacity must exist at the time
capacity to dispose of property. of making the donation and not from the
o Under the Family Code, every time of knowledge by the donor of the
donation between spouses during acceptance, that is, at the perfection of the
the marriage shall be void except act
moderate gifts on the occasion of A juridical absurdity arises in case the
any family rejoicing. The donor has no capacity to act at the time
prohibition applies also to the acceptance is conveyed to him. Since
persons living together as legally, the donor cannot be said to have
husband and wife without a valid knowledge of the acceptance, there can
marriage, or in illicit relations. be no perfection of the donation which
presupposes a meeting of the minds

104
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

between the donor and the donee who are 3. Made to a public officer or his wife,
both capacitated. descendants and ascendants, by
To avoid the apparent contradiction, the reason of his office
phrase making of the donation should be 4. Between spouses during the
construed to mean perfection of the marriage, except moderate gifts which
donation they may give each other on the
Hence, the donation would be valid, occasion of any family rejoicing (Art
although the donor was insane at the time 87, Family Code)
he signs the deed of donation or informs 5. Donations of community property by a
the donee of the donation but sane when spouse without the consent of the
he learns of the acceptance. The donor other, except moderate donations (Art
may ask for annulment of the donation if 98, Family Code)
he so desires 6. Donations of conjugal partnership
The subsequent incapacity of the donor property by a spouse without the
does not affect the validity of the donation. consent of the other, except moderate
This is similar to the rule in succession. donations (Art 125, Family Code)
7. Donations to those provided for in
Art. 738. Al those who are not specially Article 740, in cross reference to Art
disqualified by law therefor may accept 1027 and 1032.
donations. (625) 8. Donations accepted by agents without
special authority to do so (Art 745)
Capacity of the donee 9. Donations of immovables which dont
conform to the form prescribed in Art
Generally, all persons, whether natural or
749
artificial, may be donees.
A donee need not be sui juris, with Donations between persons guilty of adultery
complete legal capacity to bind himself by and concubinage
contract. The civil action for declaration of nullity
As long as he is not specially disqualified may be brought after the persons involved
by law, he may accept donations. have been found guilty by final judgment in
So, donations may be made to: a criminal proceeding of adultery or
1. Incapacitated persons such as minors concubinage.
and others who cannot enter into a In view of the last paragraph, conviction for
contract, adultery or concubinage in a criminal
2. and also to conceived and unborn action is not essential.
children. The guilt of the donor and the donee may
be proved by a mere preponderance of
Art. 739. The following donations shall be
evidence in a civil proceeding to nullify the
void:
donation, alleging the adultery or
(1) Those made between persons
concubinage as the cause of action for the
who were guilty of adultery or concubinage
declaration of nullity.
at the time of the donation;
The donation is void, whether made before
(2) Those made between persons
found guilty of the same criminal offense, in or after the illicit relations, if given in
consideration thereof; consideration thereof, either as
(3) Those made to a public officer inducement or compensation.
or his wife, descendants and ascendants, What if the donation is given in
by reason of his office. contemplation of the termination of the
In the case referred to in No. 1, the relationship, is the donation still void?
action for declaration of nullity may be o Since the purpose is praiseworthy,
brought by the spouse of the donor or good for all concerned, it should be
donee; and the guilt of the donor and donee considered valid.
may be proved by preponderance of o This is particularly true when the
evidence in the same action. (n) woman (donee) was a victim of deceit
by the man.
Donations void on moral grounds o However, where the illicit relation was
This article declares null and void ab initio voluntary, and the donation was
the donations referred to. demanded by the woman as a price of
the termination of their relationship,
What are the different void donations? the donation is void.
1. Between persons who were guilty of What if the concubine did not know that
adultery and concubinage at the time the man she lived with was actually
of the donation married?
2. Between persons found guilty of the o Then she is not guilty of concubinage
same criminal offense, in and not disqualified from the donation.
consideration thereof

105
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Donations between persons found guilty of the 5. Individuals, associations, and

same criminal offense corporations not permitted by law to
This rules presupposes prior criminal inherit.
conviction in a criminal action; hence proof According to Art 1032, there are certain
of guilty by mere preponderance of people who are deemed incapable to
evidence is not sufficient. inherit by reason of unworthiness. The
The donation here is remuneratory or donation made to a person who falls under
onerous. It is void whether made before or any of its provisions is valid if the donor
after the commission of the crime if it is in had knowledge of the act of unworthiness
consideration thereof. or having known it subsequently, he should
It is still void although the crime is not condone the same in writing. Even in the
carried out because it is based on an absence of pardon, the donation is not
unlawful cause. subject to revocation because donations
may be revoked only for causes
Donations made to a pubic officer, by reason of mentioned in Articles 760, 764 and 765.
his office So, who are these people?
Indirect bribery! 1. Parents who have abandoned their
The guilt need not be established by proof children or induced their daughters to
beyond reasonable doubt in a criminal lead a corrupt or immoral life, or
proceeding for bribery. attempted against their virtue;
2. Any person who has been convicted
A civil action to declare the donation void
of an attempt against the life of the
may be maintained by the proper party in
testator, his or her spouse,
interest.
descendants, or ascendants;
Donations made to persons other than 3. Any person who has accused the
those mentioned are valid, unless, of testator of a crime for which the law
course, they are intended for the public prescribes imprisonment for six years
officer. or more, if the accusation has been
found groundless;
Art. 740. Incapacity to succeed by will shall 4. Any heir of full age who, having
be applicable to donations inter vivos. (n) knowledge of the violent death of the
testator, should fail to report it to an
Incapacity to succeed by will officer of the law within a month,
This article expressly makes the provisions unless the authorities have already
on incapacity to succeed by will applicable taken action; this prohibition shall not
to donations inter vivos apply to cases wherein, according to
Of course, they are also applicable to law, there is no obligation to make an
donations mortis causa which are accusation;
governed by the law on succession 5. Any person convicted of adultery or
According to Art 1027, the following are concubinage with the spouse of the
incapable of becoming donees: testator;
1. The priest who heard the confession 6. Any person who by fraud, violence,
of the donor during his last illness, or intimidation, or undue influence
the minister of the gospel who should cause the testator to make a
extended spiritual aid to him during will or to change one already made;
the same period 7. Any person who by the same means
2. The relatives of such priest or minister prevents another from making a will,
of the gospel within the fourth degree, or from revoking one already made, or
the church, order, chapter, community, who supplants, conceals, or alters the
organization, or institution to which latter's will;
such priest or minister may belong 8. Any person who falsifies or forges a
3. A guardian with respect to donations supposed will of the decedent.
given by a ward in his favor before the
final accounts of the guardianship Who are incapable of becoming donees?
have been approved, even if the 1. Persons guilty of concubinage or adultery
donor should die after the approval at the time of donation (but only between
thereof; nevertheless, any provision them)
made by the ward in favor of the 2. Persons found guilty of the same criminal
guardian when the latter is his offense, in consideration thereof (but only
ascendant, descendant, brother, between them)
sister, or spouse, shall be valid 3. Public officers, etc by reason of their office
4. Any physician, surgeon, nurse, health 4. Those mentioned in Art 1027
officer or druggist who took care of the 5. Those mentioned in Art 1032 (unworthy
donor during his last illness people)

106
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Art. 741. Minors and others who cannot This article expressly makes applicable by
enter into a contract may become donees analogy the rules on sales3 of the same
but acceptance shall be done through their thing to two ore more different vendees.
parents or legal representatives. (626a) However, this article has had its sure of
criticism. See book.
Ok, tell me more about donations to minors
and others without capacity to contact Art. 745. The donee must accept the
Donation requires acceptance by the donation personally, or through an
donee. authorized person with a special power for
If the donee is a minor or without capacity the purpose, or with a general and sufficient
to enter into a contract, the acceptance power; otherwise, the donation shall be
must be made by the parents or legal void. (630)
representative of the donee.
This is especially true if the donation is Who must accept the donation?
onerous or imposes a charge or burden. 1. The donee personally, or
2. An authorized person or an agent,
It is clear that the donee may not validly
with a special power for the purpose,
accept a donation although it imposes no
or with a general and sufficient power
burden.
In any case, when a formal or written If not?
acceptance is required by the donor, such Then, the donation is void.
acceptance must be made by the parents
or legal representative.
Does the parent of a minor need a special
power for the purpose of accepting a donation?
Art. 742. Donations made to conceived and
Probably not, a parent is not considered an
unborn children may be accepted by those
agent of a minor. They are considered legal
persons who would legally represent them
guardians. (But Im not sure.)
if they were already born. (627)
Art. 746. Acceptance must be made during
Can you donate to conceived and unborn
the lifetime of the donor and of the donee.
children?
(n)
Yes!
De Leon once again states the obvious by When should acceptance be made for inter
saying, A conceived and unborn child vivos?
cannot accept a donation because it is not A donation inter vivos takes effect during
yet a natural person. the lifetime of the donor and the donee,
The acceptance must be made by those and to take effect, it must be accepted by
persons who would legally represent them the donee.
if they were already born. Hence, acceptance by the donee (or his
representative) must be made during his
Art. 743. Donations made to incapacitated lifetime and that of the donor.
persons shall be void, though simulated Even if the donation is made during their
under the guise of another contract or
lifetime, but the donor dies before the
through a person who is interposed. (628)
acceptance is communicated to him, the
donation is not perfected.
Who are the incapacitated persons referred to
here?
How about for mortis causa?
They are those specially disqualified by
Donations mortis causa are accepted only
law to become donees, such as those in
after the donors death because they
Articles 739 and 740.
partake of a will, and are governed by the
Donations to such persons are void even if rules on succession.
simulated under the guise of another If the acceptance was made before the
contract or through an intermediary.
donors death, the donation mortis causa
although validly executed, cannot be given
Art. 744. Donations of the same thing to two
or more different donees shall be governed 3
Art. 1544. If the same thing should have been
by the provisions concerning the sale of the
donated to different donees, the ownership shall be
same thing to two or more different transferred to the person who may have first taken
persons. (n) possession thereof in good faith, if it should be
movable property. Should it be immovable property, the
ownership shall belong to the person acquiring it who
Donations of the same thing to different donees in good faith first recorded it in the Registry of Property.
Should there be no inscription, the ownership shall
pertain to the person who in good faith was first in the
possession; and, in the absence thereof, to the person
who presents the oldest title, provided there is good
faith.

107
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

force and effect. Such acceptance is void. In every case, the acceptance of the
(But is the donation void? Can there be a donee must be made known to the donor
subsequent acceptance after the death of for perfection of a donation to take place.
the donor?)
Art. 749. In order that the donation of an
Art. 747. Persons who accept donations in immovable may be valid, it must be made in
representation of others who may not do so a public document, specifying therein the
by themselves, shall be obliged to make the property donated and the value of the
notification and notation of which Article charges which the donee must satisfy.
749 speaks. (631) The acceptance may be made in the
same deed of donation or in a separate
When does this article apply? public document, but it shall not take effect
1. When acceptance is made through the unless it is done during the lifetime of the
parents, legal representative, or authorized donor.
agent of the donee; If the acceptance is made in a
2. The property donated is immovable, and separate instrument, the donor shall be
3. The acceptance is not made in the same notified thereof in an authentic form, and
deed of donation but in a separate public this step shall be noted in both instruments.
instrument. (633)

The requirement of notification of the Formalities for donation of immovables

donor and notation in both instruments that This article does not apply to onerous
such notification has been made is donations since they are governed by the
necessary for the validity and perfection of laws of obligations and contracts
the donation. Donation of real property, which is a
solemn contract, is void without the
Art. 748. The donation of a movable may be formalities stated in Article 749
made orally or in writing.
An oral donation requires the So, what are the rules?
simultaneous delivery of the thing or of the When donation and acceptance are in the
document representing the right donated. same instrument, the requirements are:
If the value of the personal property 1. The donation must be in a public
donated exceeds five thousand pesos, the document or instrument; and
donation and the acceptance shall be made 2. The instrument must specify the
in writing, otherwise, the donation shall be property donated and the charges, if
void. (632a) any, which the donee must satisfy.
When the donation and acceptance are in
What are the rules for the formalities for
separate instruments, the requirements
donations for movables?
are:
When the value of property exceeds
1. The donation must be in a public
P5000, the donation and the acceptance document or instrument;
must always be made in writing; otherwise 2. The instrument must specify the
the donation is void, even if there is property donated and the charges, if
simultaneous delivery of the thing. any, which the donee must satisfy
o The donation and the acceptance 3. The acceptance by the donee must be
need not be made in a public in a public document
instrument, nor is it necessary that the 4. It must be done during the lifetime of
acceptance be made in the same the donor
deed of donation. 5. The donor must be notified in
When the value of property is P5000 or authentic form of the acceptance of
less, it may be made orally or in writing. the donation in a separate instrument;
o If made orally, there must be and
simultaneous delivery of the thing or 6. The fact that such notification has
of the document representing the right been made must be noted in both
donated, otherwise, the donation is instruments.
void. There must be acceptance which o But see the Rep v Silim case
may be oral or written. The receipt of wherein the notification was not
the delivery by the donee constitutes noted in the instrument, but still,
implied acceptance. the SC ruled that the donation
o If made in writing, the donation is valid was valid.
although there is no simultaneous
delivery. Again, there must be The donation of real property in a private
acceptance which may also be made instrument is null and void, and the donee
orally or in writing. may not compel the donor to execute a
public instrument (1357) which applies
only when the contract or donation is valid
108
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

and enforceable. The donation cannot be of the donation, are by law entitled to be
ratified. supported by the donor. Without such
Registration is not necessary for the reservation, the donation shall be reduced
donation to be considered valid and in petition of any person affected. (634a)
effective.
From the time the public instrument of Reservation of sufficient means for support of
donation is simultaneously executed and donor and relatives
acknowledged by the donor and the A donor may donate all his present
donee, the latter acquires the ownership of property or part thereof provided he
the donated property, since the execution reserves sufficient property in ownership or
of a public instrument of conveyance is in usufruct for the support of himself and of
one of the recognized ways in which all relatives who are entitled to be
tradition of immovable property may be supported by him at the time of the
made, unless the contrary is expressed or perfection of the donation
inferable from the terms of the deed. Present property means property which
Title to immovable property does not pass the donor can rightfully dispose of at the
from the donor to the donee by virtue of time of the donation.
donation until and unless it has been o The share in an existing
accepted in public instrument and the inheritance is present property
donor duly notified thereof. although the heir has not yet
Where the donation is on its face absolute entered into the possession of the
and unconditional, it is error to imply that same.
the possession or usufruct is excluded The donation of present property without
from the donation or the donation is the required reservation is not null and
subject to any charge or burden. The void in its entirety; it is only subject to
absence in the deed of any reservation in reduction by the court on petition of the
favor of the donor is proof that no such party prejudiced by the donation the
reservation was ever intended considering donor himself, any dependent relative or
that under the law, a donation of creditor of the donor.
immovable by public instrument is required The limitation applies to simple,
to specify the value of the charges that remunerative and modal donations but not
the donee must assume. to onerous ones which are governed by
the law on obligations and contracts, nor to
Case doctrines donations mortis causa for they take effect
The best or primary evidence of a donation only after the donors death.
of real property is an authentic copy of the Donations propter nuptias cannot exceed
deed of donation with all the formalities more than one-fifth of the present property
required by Article 749. When a party of the future spouses if in their marriage
wants to prove the contents of a settlements executed before the marriage,
documents, the best evidence is the they agree upon a regime other than the
original writing itself. absolute community of property.4
Prior to the introduction of secondary
evidence, a party must establish the Case doctrines
existence and due execution of the When the dnor stated that she would
instrument, after which he must prove that continue to retain the possession,
the document was lost or destroyed. cultivation, harvesting and all other rights
(DECS v Del Rosario)
Where the deed of donation fails to show 4
the acceptance, or where the formal notice Art. 82. Donations by reason of marriage are those which
of the acceptance, made in a separate are made before its celebration, in consideration of the
same, and in favor of one or both of the future spouses.
instrument is not given to the donor or else (126)
not noted in the deed of donation and in Art. 83. These donations are governed by the rules on
the separate acceptance, the donation is ordinary donations established in Title III of Book III of the
Civil Code, insofar as they are not modified by the following
null and void. (Sumipat v Banga) articles. (127a)
Art. 84. If the future spouses agree upon a regime other than
CHAPTER 3 the absolute community of property, they cannot donate to
each other in their marriage settlements more than one-fifth
EFFECT OF DONATIONS AND of their present property. Any excess shall be considered
void.
LIMITATIONS THEREON Donations of future property shall be governed by the
provisions on testamentary succession and the formalities of
Art. 750. The donations may comprehend all wills. (130a)
Art. 85. Donations by reason of marriage of property subject
the present property of the donor, or part
to encumbrances shall be valid. In case of foreclosure of the
thereof, provided he reserves, in full encumbrance and the property is sold for less than the total
ownership or in usufruct, sufficient means amount of the obligation secured, the donee shall not be
for the support of himself, and of all liable for the deficiency. If the property is sold for more than
the total amount of said obligation, the donee shall be
relatives who, at the time of the acceptance entitled to the excess. (131a)
109
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

and atrtributes of ownership she meant Article 752 makes applicable to donations
only dominium utile, not the full ownership. the limitation on testamentary disposition
The words rights and attributes of with respect to the amount thereof.
ownership should be construed ejusdem The limitation is really on the right of the
generis with the preceding rights of donor to give rather than on the right of the
possession, cultivation and harvesting donee to receive.
expressly enumerated in the deed. A person may not donate more than he
(Cuevas v Cuevas) can give by will and a person may not
receive by way of donation more than what
Art. 751. Donations cannot comprehend the donor is allowed by law to give by will;
future property. otherwise, the donation shall be inofficious
By future property is understood and shall be reduced with regard to the
anything which the donor cannot dispose of excess.
at the time of the donation. (635)
The limitation applies where the donor has
forced or compulsory heirs. The purpose is
Donation of future property PROHIBITED!
not to diminish the legitimes to which they
Future property is anything which the
are entitled.
donor cannot dispose of at the time of the o But the limitation is enforceable
donation. In other words, it is property that
only after the death of the donor
belongs to others at the time the donation
because it is only then when it
is made and it is immaterial that it may
can be determined whether or not
subsequently belong to the donor.
the donation is inofficious; by
Nobody can dispose of that which does contrasting its value with the net
not belong to him. Nemo emo. value of the estate of the donor
Future inheritance cannot be donated deceased.
because it is future property but upon the o The donation is valid during the
death of his predecessor, the inheritance lifetime of the donor.
ceases to be future and consequently, may
be the object of donation even if the Art. 753. When a donation is made to
properties constituting the inheritance several persons jointly, it is understood to
have not yet been delivered. be in equal shares, and there shall be no
Property, the acquisition of which by the right of accretion among them, unless the
donor depends upon the fulfillment of a donor has otherwise provided.
suspensive condition, may be donated The preceding paragraph shall not
because, although the property may be as be applicable to donations made to the
to him still future property, the effects of husband and wife jointly, between whom
the fulfillment of the condition shall retroact there shall be a right of accretion, if the
to the day of the constitution of the contrary has not been provided by the
contract. donor. (637)
Another reason is that the donor by
desisting to acquire a future property Donation to several donees jointly
donated would be revoking the donation The rules are as follows:
contrary to the rule that donations inter 1. The donation is understood to be in
vivos are irrevocable save for causes equal shares, unless the donor has
provided by law. provided otherwise.
2. There shall be no right of accretion
Case doctrine among the donees, unless the donor
A donor cannot lawfully convey what is not has otherwise provided.
his property. Where a parcel of land was 3. If the donees are husband and wife,
the registered property of another, and the there shall be aright of accretion, if the
donee failed to show how her donor contrary has not been provided by the
acquired it from the registered owner, it is donor.
held that the donor has no right, title or If there is no accretion among the donees,
interest in said land which he could lawfully one cannot accept independently for his
convey. co-donee who is not present.

Art. 754. The donee is subrogated to all the

Art. 752. The provisions of Article 750 rights and actions which in case of eviction
notwithstanding, no person may give or would pertain to the donor. The latter, on
receive, by way of donation, more than he the other hand, is not obliged to warrant the
may give or receive by will. things donated, save when the donation is
The donation shall be inofficious in onerous, in which case the donor shall be
all that it may exceed this limitation. (636) liable for eviction to the concurrence of the
burden.
Amount of donation limited to what donor may
give by will
110
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

The donor shall also be liable for To be valid, the donee must be living at
eviction or hidden defects in case of bad the time of the donation, which is to be
faith on his part. (638a) understood to refer to the time of the
perfection of the donation.
Rights and actions A donation to a child who was not yet
Here are the rules: conceived at the time it was made is void.
1. The donee is subrogated to all the If the property donated is immovable, the
rights and actions which in case of formalities for donations of real property
eviction would pertain to the donor must be complied with.
2. If the donation is simple or
remunerative, the donor is not liable Art. 757. Reversion may be validly
for eviction or hidden defects, becaue established in favor of only the donor for
the donation is gratuitous; any case and circumstances, but not in
3. Even if the donation is simple or favor of other persons unless they are all
remunerative, the donor is liable for living at the time of the donation.
eviction or hidden defects in case of Any reversion stipulated by the
bad faith on his part (knowingly donor in favor of a third person in violation
donating a chicken with avian flu) or of what is provided in the preceding
warranty is expressly stipulated; and paragraph shall be void, but shall not nullify
4. If the donation is onerous (modal the donation. (614a)
donation, according to de Leon), the
donor is liable on his warranty but only Donation with provision for reversion
to the extent of the burden. The donor may provide for reversion,
whereby the property shall go back to the
Art. 755. The right to dispose of some of the donor or some other person.
things donated, or of some amount which
It may be validly established for any case
shall be a charge thereon, may be reserved
and circumstances.
by the donor; but if he should die without
having made use of this right, the property If the revision is in favor of other persons,
or amount reserved shall belong to the they must be living at the time of the
donee. (639) donation.
Thus, a reversion in favor of an
Donation with right of donor to dispose of part unconceived child is void, but such nullity
of object donated, reserved. shall not invalidate the donation. The
The donor may reserve the right to reversion which is merely an accessory
dispose of some of the things or part of the clause is simply disregarded.
thing donated or some amount or income
thereof.
The donation is actually conditional, and Art. 758. When the donation imposes upon
the donee the obligation to pay the debts of
the condition is fulfilled if the donor dies
the donor, if the clause does not contain
without exercising the right he reserved,
any declaration to the contrary, the former
either by acts inter vivos or mortis causa.
is understood to be liable to pay only the
debts which appear to have been previously
Ron donates to Harry a house and an
contracted. In no case shall the donee be
apartment with the provision that Ron could sell
responsible for the debts exceeding the
the house and give the rents (or a portion) of
value of the property donated, unless a
the apartment for 5 years to Frank. The
contrary intention clearly appears. (642a)
donation of the house with a reservation of the
right to dispose should be considered mortis
Art. 759. There being no stipulation
causa, and therefore, must follow the
regarding the payment of debts, the donee
formalities prescribed for making a will. The
shall be responsible therefor only when the
donation of the apartment is inter vivos.
donation has been made in fraud of
creditors.
Art. 756. The ownership of property may
The donation is always presumed
also be donated to one person and the
to be in fraud of creditors, when at the time
usufruct to another or others, provided all
thereof the donor did not reserve sufficient
the donees are living at the time of the
property to pay his debts prior to the
donation. (640a)
donation. (643)
Naked ownership and usufruct separately
Liability of donee to pay debts of donor
donated
Here are the rules.
The donor may donate separately the
1. Where donor imposes obligation upon
naked ownership (dominium directum) to
the donee:
one person and the usufruct (dominium
utile) to another.

111
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

a. The donee is liable to pay

only debts previously Art. 760. Every donation inter vivos, made
contracted; by a person having no children or
b. He is liable for subsequent descendants, legitimate or legitimated by
debts only when there is a subsequent marriage, or illegitimate, may
stipulation to that effect; and be revoked or reduced as provided in the
c. He is not liable for debts in next article, by the happening of any of
excess of the value of the these events:
donation received, unless the (1) If the donor, after the donation,
contrary is intended. should have legitimate or legitimated or
2. Where there is no stipulation illegitimate children, even though they be
regarding the payment of debts posthumous;
a. The donee is generally not (2) If the child of the donor, whom
liable to pay the donors the latter believed to be dead when he made
debts; the donation, should turn out to be living;
b. He is responsible therefore (3) If the donor subsequently adopt
only if the donation has been a minor child. (644a)
made in fraud of creditors
(which is always presumed Grounds for revocation and reduction of
when at the time of the donation
donation the donor has not 1. Revocation affects the whole donation and
left sufficient assets to pay is allowed during the lifetime of the donor.
his debts) The grounds are:
c. He is not liable beyond the a. Birth, appearance, or adoption of
value of the donation a child (760);
received. b. Non-fulfillment of a resolutory
Ordinarily, the donee should not be made condition imposed by the donor
liable to pay the donors debt beyond the (764); and
value of the thing donated. c. Ingratitude of the donee. (765)
2. Reduction generally affects a portion only
Donation in fraud of creditors of the donation (unless the donee has no
Presumed in fraud when at the time free portion left) and is allowed during the
thereof the donor did not reserve sufficient lifetime of the donor or after his death. The
property to pay his debts prior to the grounds are:
donation. a. Failure of the donor to reserve
The creditors of the donor at the time of sufficient means for support of
the donation may exercise the subsidiary himself or dependent relatives;
right of rescission when they cannot in any (750)
manner collect the claims due them b. Failure of the donor to reserve
(accion pauliana) unless the property sufficient property to pay off his
donated has passed into the hands of a existing debts (759);
third person in good faith for value. In the c. Inofficiousness, that is, the
latter case, the donee shall answer for donation exceeds that which the
damages if he acted in bad faith. donor can give by will; (752, 771)
and
Case doctrine d. Birth, appearance, or adoption of
a child. (760)
Requisites for an accion pauliana:
A donation that has been duly perfected in
1. Credit prior to alienation, even if
demandable later accordance with law should stand until
2. Debtor has made a subsequent after its revocation should have been
contract conveying a patrimonial asked and granted in the proper
benefit to a 3rd person proceeding.
3. The creditor has no legal remedy to
satisfy his claim Birth, appearance, or adoption of a child
4. The act being impugned is fraudulent This article applies to all donations inter
5. The third person who received the vivos. It does not apply:
property conveyed, if is by onerous a. to donations mortis causa for
title, has been an accomplice in the they are revocable at will by the
fraud. donor (testator);
But remember that accion pauliana is b. to onerous donations for they are
subsidiary. really contracts; and
c. to donations propter nuptias for
they are revocable only for the
CHAPTER 4 causes provided in the Family
REVOCATION AND REDUCTION OF
DONATIONS
112
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

Code see Art 86 of the Fam The note says child, so the subsequent
Code5. appearance of a descendant, like a
It is applicable when the donor, at the time grandkid, would not revoke the donation
he made the donation, did not have any o But the donation may be reduced
child or descendant or erroneously thought under Article 771 as inofficious if
so; otherwise, Article 771 in relation to it impairs the legitime of the
Article 752 shall apply. descendant.
Every donation is subject to revocation or
reduction by the happening of any of the Adoption of a child
events mentioned which are in the nature The subsequent adoption of a minor child
of implied resolutory conditions. is also a ground for the revocation or
reduction of a donation.
Birth of a child Its an exception to the rule that a donation
Here, the donor had no child whether inter vivos shall be irrevocable by the
legitimate, legitimated, or illegitimate at the donor.
time of the donation, and thereafter, a child Again, the law says minor child; hence
was born even if posthumous. the adoption of a person of majority age
What if the child was already conceived although it is allowed in certain cases is
but not yet born, what provision should not a ground under No. 3.
apply, Article 760 or 771?
o It depends. Case doctrine
o If the donor was aware of such Revocation upon birth of a child and return
conception, Article 771. Hence, of property to donor are not self-operative
he cannot revoke the donation or self-executory. There is a need for
upon the birth of the child. judicial action. (Oracion v Juanillo)
o But, if he did not know of such
conception when he made the Art. 761. In the cases referred to in the
donation, the situation is similar to preceding article, the donation shall be
the appearance of an absent revoked or reduced insofar as it exceeds
child thought by the donor to be the portion that may be freely disposed of
dead. For purposes of the law, he by will, taking into account the whole estate
had no child. of the donor at the time of the birth,
The rule is that a appearance or adoption of a child. (n)
conceived child is
considered born for all Extent and basis of revocation or reduction
purposes favorable to it. Birth, appearance, or adoption of a child.
Since to consider the A person may not give by way of donation
child as already born more than he may give by will.
would make the The amount subject to revocation or
donation irrevocable and reduction is, therefore, the excess over the
would be unfavorable to portion that may be freely disposed of by
it, the subsequent birth will.
of the child should The basis of revocation or reduction is the
revoke or reduce the value of the whole estate of the donor at
donation. the time of the birth, appearance, or
adoption of a child, and not at the time of
Appearance of a child the death of the donor as in the case of
In this case, the donor had only one child inofficious donations under Article 771.
whom he believed to have already died at o To the value of the estate shall be
the time of the donation. added the value of the donation
at the time it was made because
it would have been still part of the
estate had not the donation been
5
Art. 86. A donation by reason of marriage may be revoked made.
by the donor in the following cases: The burden of proof is on the plaintiff-
(1) If the marriage is not celebrated or judicially declared void
ab initio except donations made in the marriage settlements, donor who must allege and establish the
which shall be governed by Article 81; requirements prescribed by law.
(2) When the marriage takes place without the consent of the In the case of inofficious donations.
parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in What is sought to be protected by Article
bad faith; 760 is only the prospective or presumptive
(4) Upon legal separation, the donee being the guilty spouse; legitime of the child because that is the
(5) If it is with a resolutory condition and the condition is only portion which cannot be disposed of.
complied with; If the donation does not exceed the free
(6) When the donee has committed an act of ingratitude as portion at the time of the birth,
specified by the provisions of the Civil Code on donations in
general. (132a) appearance, or adoption, there will be no
113
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

revocation or reduction but it may still be It is presumed that the price at which the
reduced under Article 771 if it cannot be property is sold is its value.
covered by the free portion computed as of o If the price is less than its actual
the time of the donors death. value, the donee is not liable for
the difference absent proof of bad
Let us suppose Ron who was then childless, faith.
donated a property worth P50 to Erin, a close o When the property cannot be
friend. Subsequently, a child was born to Ron returned, its value shall be
whose estate at the time was P30. His total determined not as of the time of
estate then including the value of the property the loss but as of the time of the
donated was P80. donation.
Since the legitime of a legitimate child is of
the estate or P40, and therefore, the free Art. 763. The action for revocation or
portion is also P40, the donation must be reduction on the grounds set forth in article
reduced by P10. 760 shall prescribe after four years from the
But if the value of the estate was P70, the birth of the first child, or from his
donation is not revoked or reduced because it legitimation, recognition or adoption, or
does not exceed the free portion of P60 [(P70 + from the judicial declaration of filiation, or
50)/2]. from the time information was received
However, should the estate of Ron be less than regarding the existence of the child
P50, excluding the P50 donation, at the time of believed dead.
his death (for example, P40), it shall be subject This action cannot be renounced,
to reduction to the extent that it is inofficious and is transmitted, upon the death of the
(i.e. P50 P45 [(P50+P40/2) = P50) under donor, to his legitimate and illegitimate
article 771. children and descendants. (646a)
Case doctrines Prescription of action for revocation or
Donor has the burden to allege and reduction
establish the requirements prescribed by The donation is revoked ipso jure by
law for which the annulment or reduction operation of law, by the happening of any
of the donation can be based. (Cruz v CA) of the events mentioned in Article 760.
o Hence, it is not really essential
Art. 762. Upon the revocation or reduction that an action be brought to
of the donation by the birth, appearance or revoke the donation.
adoption of a child, the property affected o BUT, the revocation is not self-
shall be returned or its value if the donee
operative or self-executory.
has sold the same.
If the donee should refuse to comply with
If the property is mortgaged, the
donor may redeem the mortgage, by paying his obligation under Article 762, resort to
the amount guaranteed, with a right to judicial action is necessary under Article
recover the same from the donee. 763. But since it is the law itself that
When the property cannot be declares the revocation, the action is
returned, it shall be estimated at what it was strictly not an action to revoke but one to
worth at the time of the donation. (645a) have the court expressly declare the
revocation which has already taken place
Obligation of donee upon revocation or by operation of law.
reduction The period within which to bring the action
In case of revocation or reduction under is 4 years. The time to start counting
Article 760, the obligation of the donee depends upon the cause:
depends upon the situation of the property o Birth of the first child;
donated. o From time of legitimation,
o If the property affected is still in recognition or adoption; or
his possession, he must return o From judicial declaration of
the same. filiation
o If he has sold the property, he o From the time information was
must give its value. received regarding the existence
o If the property has been of the child believed dead.
mortgaged by him, and the donor Not from the actual
redeemed the mortgage, he must appearance of the
reimburse the donor. absent child.
o If the property cannot be If the donor dies within the period, the
returned, as when it ahs been lost action is transmitted to his legitimate and
or destroyed, he must return its illegitimate children and descendants (not
value at the time of the perfection the spouse or ascendants of the donor).
of the donation. In case more than one cause or ground for
revocation or reduction concur, the period
114
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

of prescription must run from the earliest donor, the donation shall be revoked at the
cause. instance of the donor.
Reduction of a donation upon the o But, the donor may instead file for
allegation of impairment of legitime is not an action of specific performance
controlled by a particular prescriptive to compel the donee to comply
period for which reason the period shall be with the conditions.
governed under the ordinary rules of The action must be brought within 4 years
prescription. Under Article 1144, the action from the non-compliance with the condition
must be brought within 10 years from the it can only be brought by the donor or his
time the right of action accrues, which is heirs against the donees heirs (compare
the death of the donor. to Articles 769 and 770).
The action cannot be waived. (Compare to The death of the donor or the donee does
the next article!) not bar the action to revoke for failure of
the donee to comply with the conditions,
Art. 764. The donation shall be revoked at provided the prescriptive period has not
the instance of the donor, when the donee yet expired.
fails to comply with any of the conditions Unlike the action for revocation or
which the former imposed upon the latter. reduction under Article 763, the action may
In this case, the property donated be waived because the condition is purely
shall be returned to the donor, the contractual in nature.
alienations made by the donee and the
mortgages imposed thereon by him being Is court action necessary?
void, with the limitations established, with In any case, a court action is necessary if
regard to third persons, by the Mortgage the donee refuses to return the property or
Law and the Land Registration Laws. to comply with the conditions.
This action shall prescribe after The deed of donation, however, may
four years from the noncompliance with the
provide that violation of any of its
condition, may be transmitted to the heirs
conditions shall cause the automatic
of the donor, and may be exercised against
rescission of the contract. In such case,
the donee's heirs. (647a)
upon the violation, the donation is
automatically revoked, without need of a
Failure to comply with conditions
judicial declaration.
A donation may be revoked in case of o Except where the donee denies
failure of the donee to comply with any of the donors right to rescind, in
the conditions imposed by the donor upon which case, judicial intervention is
him. necessary to determine whether
The word conditions actually refers to or not the rescission is proper.
obligations, charges, or burdens imposed In the absence of an agreement in the
by the donor; it may also refer to a donation providing of an automatic
resolutory condition. Hence, what is rescission, a judicial declaration revoking
contemplated are onerous or modal said donation will be necessary.
donations.
Of course, it implies that there is an Case doctrines
existing donation. When land is donated on several express
The condition must be fulfilled within the conditions, acceptance by the donee will
period fixed by the donor. be understood to include all of the
o No period? The court shall conditions not umistakably rejected.
determine such period as may (Barreto v Manila)
have been contemplated by the When the donee has entered into
donor. possession of the property, effect will be
In case the donee fails to comply, the given to the donation according to the
property donated reverts to the donor, terms of the offer and acceptance,
along with the fruits of the property which although the formal deed has not been
the donee may have received after having executed. (Barreto)
failed to fulfill the condition. If there is no fulfillment with the resolutory
If the property has been alienated or condition, the donation may now be
mortgaged, the alienation or mortgage revoked and all rights which the donee
shall be void SUBJECT to the rights of may have acquired under it shall be
innocent third persons under registration deemed lost and extinguished. (Central
laws who may have taken the property Phil University v CA)
donated without notice of the condition Article 764 does not apply to onerous
imposed. (Public policy baby!) donations because onerous donations are
In case of non-fulfillment by the donee of governed by the rules of Contracts. Hence,
any of the conditions imposed by the the prescription period is 10 years, not 4
years. (De Luna v Abrigo)
115
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

o While courts are given the power Its important to determine whether or not
to fix the duration when the the donation is onerous or not so that we
condition is to be fulfilled when know what law to apply.
none is given, if the facts show
that a reasonable period has Art. 765. The donation may also be revoked
already been allowed the donee at the instance of the donor, by reason of
to avail of the opportunity to ingratitude in the following cases:
comply with the condition, then (1) If the donee should commit
the courts will no longer give the some offense against the person, the honor
donee a period. (Central Phil Uni) or the property of the donor, or of his wife
o The legal possibility of bringing or children under his parental authority;
the action begins with the (2) If the donee imputes to the
expiration of a reasonable donor any criminal offense, or any act
opportunity of the donee to fulfill involving moral turpitude, even though he
what has been charged upon it by should prove it, unless the crime or the act
the donor. (Sec of Education v has been committed against the donee
Heirs of Dulay) himself, his wife or children under his
Nothing in law prohibits parties from authority;
entering into an agreement that violation of (3) If he unduly refuses him support
the terms of the contract would cause when the donee is legally or morally bound
cancellation thereof even without court to give support to the donor. (648a)
intervention.
o In cases like these, judicial Revocation by reason of ingratitude of the
intervention is necessary not for donee
purposes of obtaining a judicial Article 765 does not apply to donations
declaration rescinding a contract mortis causa and onerous donations.
already deemed rescinded but in A donation propter nuptias may be
order to determine whether or not revoked by the donor when the donee has
the rescission was proper. (De committed an act of ingratitude as
Luna) specified in Article 765.
When the deed of donation expressly The enumeration is exclusive and cannot
provides for automatic rescission and be enlarged.
reversion of the property donated, the The act of ingratitude must have been
rules on contract and the general rules on committed by the donee himself because
prescription should apply, not 764. (Roman the duty of gratitude is personal. An act
Catholic Archbishop of Manila v CA) imputable to the husband or wife or the hot
o A donor cannot revoke the mistress of the donee is not a ground for
donation on the grounds for non- revocation.
compliance of an impossible
condition. (Archbishop of Manila v Offense against the donor, etc
CA) Criminal conviction is not needed. It is
A declaration of petitoners absolute sufficient that the offense be proved by
ownership appears legally possible only mere preponderance of evidence in the
when the deed of donation is contextually action for revocation.
declared peremptorily revoked. (Dolar v If the offense is committed against a child
Barangay Lublub) who is no longer under parental authority,
The act of selling property to a 3 rd party the donation cannot be revoked.
cannot be considered as a valid act of
revocation of the deed of donation for the Imputation to donor of any criminal offense, etc
reason that a formal case to revoke the It is immaterial that the donee can prove
donation must be filed which speaks of an his accusation or substantiate his
action that has a prescriptive period of 4 testimony against the donor.
years from non-compliance with the o The exception is when the crime
condition. In this case, there was no has been committed against the
provision of automatic rescission, thus donee himself, his wife or children
placing the case within the ambit of Article under his parental authority.
764. (Austria-Magat v CA) o The act involving moral turpitude
When the donation is onerous and does may not amount to a crime.
not fix a period to comply with the
condition, the courts should fix a period to Refusal to support the donor
uphold the greatest reciprocity of rights. If There are two requisites:
it is gratuitous, then they should not, to 1. The refusal to support the donor
uphold the least reciprocity of rights and must be undue, that is, without
interests. just reason; and

116
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

2. The donee must be legally or The complaint for revocation was annotated on
morally bound to support the August 10. Thus, the sale to Tara is valid, and
donor. the remedy of Ron is to recover from Eric the
Note that ingratitude extends beyond value of the land at the time of the donation.
failure to do a legal duty to support and
includes a moral duty to help. (donee is a If the sale was made after August 10, the sale
friend who is penniless and asks for help, is void and Ron can recover the land from Tara.
and the donor shuns her away like a
scorned lover.) If the act of ingratitude was committed on July
20, the sale on July 30 and the complaint which
Case doctrine was filed on July 25 and was annotated on July
All crimes which offend the donor show 31, but at the time of the sale Tara was aware
ingratitude and are causes for revocation. of the act of ingratitude committed by Erin, or
Any crime under the Revised Penal Code the pending action by Ron, the sale should not
is one involving moral turpitude. (Spouses be considered valid because Tara acted in bad
Romulo v CA) faith, and so Ron can recover the land from
her.
Art. 766. Although the donation is revoked
on account of ingratitude, nevertheless, the Art. 768. When the donation is revoked for
alienations and mortgages effected before any of the causes stated in Article 760, or
the notation of the complaint for revocation by reason of ingratitude, or when it is
in the Registry of Property shall subsist. reduced because it is inofficious, the donee
Later ones shall be void. (649) shall not return the fruits except from the
filing of the complaint.
Art. 767. In the case referred to in the first If the revocation is based upon
paragraph of the preceding article, the noncompliance with any of the conditions
donor shall have a right to demand from the imposed in the donation, the donee shall
donee the value of property alienated which return not only the property but also the
he cannot recover from third persons, or fruits thereof which he may have received
the sum for which the same has been after having failed to fulfill the condition.
mortgaged. (651)
The value of said property shall be
fixed as of the time of the donation. (650) Return by donee of the fruits of property
donated
Effect of revocation on prior alienations and The rules depend upon the cause of
mortgages revocation or reduction
If by non-compliance o If the cause is:
In case of revocation of a donation by non- the birth, appearance or adoption
compliance by the donee with any of the of a child, or
conditions imposed, alienations and ingratitude, or
mortgages made by the donee are void, inofficiousness of the donation
subject only to the rights of innocent third (because the donor did not
persons. The donor can recover from the reserve sufficient means for
donee: support), or
o Only the value of the property donated he donated more than he could
at the time of the perfection of the give by will, then
donation, OR only the fruits
o The sum for which it was mortgaged. accruing from the
Recovery cannot be had against the third filing of the
person unless he acted in bad faith as when complaint need be
had actual knowledge of the cause for returned.
revocation or the filing of the action. It can be implied
that the donation
If by reason of ingratitude remains valid up to
If the revocation is by reason of the time of the filing
ingratitude, the alienations and mortgages of the complaint.
made by the donee before the complaint If the cause is the non-fulfillment of any of
for revocation is annotated in the Registry the conditions imposed in the donation, the
of Property shall subsist or are valid. Later fruits must be returned from the time of the
alienations and mortgages shall be void. breach of the condition. The donation shall
The donor can recover the property also return the property donated.
from the transferee or mortgagee. In case of inofficious donation which
exceeds the free disposal by will, the
The donation of land by Ron to Erin was made donation takes effect during the lifetime of
on July 10. Erin sold the land to Tara on July the donor, the donee appropriates the
20. The act of ingratitude was done on July 30.
117
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

fruits, and the reduction may be asked 3. If a criminal case against the
only after the donors death. donee was instituted by the
donor, but the donor dies before
Art. 769. The action granted to the donor by he could bring the civil action for
reason of ingratitude cannot be renounced revocation; or
in advance. This action prescribes within 4. If the action for revocation has
one year, to be counted from the time the already been filed by the donor
donor had knowledge of the fact and it was before his death.
possible for him to bring the action. (652)
Action against heirs of donee
Renunciation and prescriptive period of action The heirs of the donee are not held
by reason of ingratitude responsible for the acts of their
The action granted to the donor for predecessor-donee. The act of ingratitude.
revocation by reason of ingratitude, like (The sins of the father are not the sins of
the action based on the birth, appearance, the son although, there are some
or adoption of a child cannot be renounced instances where we repeat the mistakes of
in advance. our parents. General rule? Learn.)
What the law prohibits is waiver, prior to But if the donor has already filed the
the commission of the act of ingratitude. complaint before the donees death, the
A past ingratitude can be the subject of a suit may be continued against his heirs.
valid renunciation because the
renunciation can be considered as an act Art. 771. Donations which in accordance
of magnanimity on the part of the donor. with the provisions of Article 752, are
The action prescribes inofficious, bearing in mind the estimated
1. Within one year from the time the net value of the donor's property at the time
donor had knowledge of the act of of his death, shall be reduced with regard to
ingratitude AND the excess; but this reduction shall not
2. It was possible for him to bring prevent the donations from taking effect
the action. during the life of the donor, nor shall it bar
To bar the action, the donee must show the donee from appropriating the fruits.
proof that the one-year period has expired For the reduction of donations the
and it was possible for the donor to provisions of this Chapter and of Articles
institute the said action within the same 911 and 912 of this Code shall govern. (654)
period.
Reduction of inofficious donations
Art. 770. This action shall not be transmitted Donations which are inofficious because
to the heirs of the donor, if the latter did not they are more than what the donor can
institute the same, although he could have give by will shall be reduced with regard to
done so, and even if he should die before the excess upon the death of the donor,
the expiration of one year. after determining the net value of the
Neither can this action be brought estate.
against the heir of the donee, unless upon Thus, it follows that the donation is
the latter's death the complaint has been effective during the lifetime of the donor
filed. (653) and so, the donee, as owner of the
property donated also becomes owner of
Transmission of action for revocation the fruits, although the donation should
General rule: The action to revoke a appear inofficious.
donation by reason of ingratitude is purely For donations propter nuptias, they may
personal to the donor and cannot, as a be reduced for being inofficious. Being
rule, be transmitted to the heirs. liberalities, they remain subject to
This is unlike the action for revocation reduction for inofficiousness upon the
based on the birth, appearance or donors death, if they should infringe the
adoption of a child and the action based legitime of a forced heir.
on non-compliance with the condition of a The action to reduce the inofficious
donation. donation must be brought within 5 years
However, the particular circumstances of from the time of the donors death.
the case should be taken into account to For reduction of donations, the following
determine whether it was possible to bring articles, quoted below shall govern:
the action. Hence, the following exceptions
wherein the heirs of the donors can ask for Art. 911. After the legitime has been
the revocation: determined in accordance with the three
1. If the donee killed the donor, or preceding articles, the reduction shall be made
2. If the donor dies without having as follows:
known of the act of ingratitude, or (1) Donations shall be respected as long as the
legitime can be covered, reducing or annulling,

118
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

if necessary, the devises or legacies made in estate of the deceased, but not against the
the will; owners of the donated property.)
(2) The reduction of the devises or legacies
shall be pro rata, without any distinction Renunciation of right to ask for reduction can
whatever. If the testator has directed that a it be done?
certain devise or legacy be paid in preference The right to ask for the renunciation of
to others, it shall not suffer any reduction until inofficious donations cannot be renounced
the latter have been applied in full to the during the lifetime of the donor, ether by
payment of the legitime. express declaration or by consenting to the
(3) If the devise or legacy consists of a usufruct donation.
or life annuity, whose value may be considered
greater than that of the disposable portion, the 773. If, there being two or more donations,
compulsory heirs may choose between the disposable portion is not sufficient to
complying with the testamentary provision and cover all of them, those of the more recent
delivering to the devisee or legatee the part of date shall be suppressed or reduced with
the inheritance of which the testator could regard to the excess. (656)
freely dispose. (820a)
Art. 912. If the devise subject to reduction Reduction where there are two or more
should consist of real property, which cannot be donations
conveniently divided, it shall go to the devisee The subsequent donations shall first be
if the reduction does not absorb one-half of its reduced and only if they are not sufficient
value; and in a contrary case, to the to cover the disposable portion should the
compulsory heirs; but the former and the latter earlier ones be reduced also with regard to
shall reimburse each other in cash for what the excess.
respectively belongs to them. If the two donations were perfected at the
The devisee who is entitled to a legitime may same time, the reduction should be
retain the entire property, provided its value proportionate unless otherwise provided
does not exceed that of the disposable portion by the donor.
and of the share pertaining to him as legitime.
(821) Rules on revocation CHARTED!

Art. 772. Only those who at the time of the REVOCATI Birth, Non- Ingratitu
donor's death have a right to the legitime ON, based appearan complia de
and their heirs and successors in interest on ce, or nce with
may ask for the reduction or inofficious adoption conditio
donations. of a child n or
Those referred to in the preceding conditio
paragraph cannot renounce their right ns
during the lifetime of the donor, either by Time of Within 4 Within 4 Within 1
express declaration, or by consenting to the action years years year
donation. from birth from from the
The donees, devisees and legatees, of first non- time the
who are not entitled to the legitime and the child, or complia donor
creditors of the deceased can neither ask From his nce with had
for the reduction nor avail themselves legitimati the knowled
thereof. (655a) on, or conditio ge of
Adoption, n the fact
Persons entitled to ask for reduction who are or of the
they? From the But if its ingratitu
For the reduction of inofficious donations, judicial an de
1. those who at the time of the declaratio onerous
donors death have a right to the n of donation
legitime, and filiation, , within
2. their heirs, and or 10 years
3. succesors in interest. From from
The donor is not included, patay na siya receipt or non-
eh. The inofficiousness can only be info complia
determined after his death. regarding nce with
the the
Who may not ask for reduction? existence conditio
1. The donees, or of the n
2. The devisees, or child
3. The legatees, who are not entitled to the believed
legitime. dead
4. Creditors of the deceased. (The remedy of Transmissib Transmitt May be Generall
creditors is to file a claim against the ility of ed to transmitt y, the
119
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

action children ed to the action is suppor will

and donors not t
descenda heirs transmitt Time of Any Within Same The
nts of the and may ed to action time 10 as in action
donor be the heirs by the years first for
upon his exercise of the donor (Santos colum rescis
death d donor or by v Alana n sion
against nor can the case, must
the the relativ based be
donees action es on broug
heirs be filed entitle 1144) ht
against d to within
the heirs suppor Within 4
of the t 5 years years
donee during after from
Effect of Property Property Property the the the
revocation affected donated donated lifetim death perfec
shall be shall be shall be e of of the tion of
returned, returned returned the donor the
or its to the but donor (if donati
value if donor alienatio propter on, or
the and the ns and nuptias, at the
donee alienatio mortgag accordi latest,
has sold ns and e ng to from
the mortgag effected book) the
same, or es are before time
The void the the
donor subject notation credit
may to the of the or had
redeem rights of complai knowl
the innocent nt for edge
mortgage 3rd revocati of the
on the persons on in the donati
property, Registry on
with a of Transmi Not Transm Same Trans
right to Property ssibility transm itted to as in mitted
recover shall of issible the first to the
the subsist action as the donors colum credit
property duty to heirs as n ors
Liability for Donee Donee Same give the heirs
fruits shall shall as in suppor donatio or
return the return first t and n shall succe
fruits the fruits column the be ssors-
accruing which right to reduce in-
from the he may receiv d as intere
filing of have e are regards st
the received person the
complaint after al in excess
having nature at time
failed to of the
fulfill the donors
conditio death
n Effect of Reduc Takes Same Prope
revocati ed to effect as in rty
Rules on reduction CHARTED! on the during first affect
extent the colum ed
REDUC Failure Inofficio Birth, Fraud neces lifetime n shall
TION, of the usness appea again sary to of the be
based donor for rance, st provid donor return
on to being in or credit e subject ed by
reserv excess adopti ors suppor to the
e of what on of t reductio donee
sufficie the a child n only for the
nt donor upon benefi
means can his t of
for give by death the

120
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

with credit
regard or
to the subjec
excess t to
the
rights
of
innoc
ent
third
perso
ns
Liability Donee Donee Donee Fruits
for fruits is appropr , as of the
entitle iates owner, proper
d to the appro ty
the fruits as priate affect
fruits owner s the ed
as of the fruits shall
owner propert of the also
of the y proper be
proper ty not return
ty affecte ed. In
donate d by case
d the the
reduct donee
ion, acted
but in bad
with faith
regard and it
to the shoul
exces d be
s, he impos
shall sible
be for
liable him to
only return,
for the then
fruits indem
from nify
the the
filing donor
of the s
compl credit
aint or for
dama
ges.

Happy the man who finds wisdom, the man

who gains understanding!-- Proverbs 3:13

Thus you may walk in the way of good men,

and keep to the paths of the just. For the
upright will dwell in the land, the honest will
remain in it; But the wicked will be cut off from
the land, the faithless will be rooted out of it.--
Proverbs 2:20-22

121
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!