UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 1
PROPERTY REVIEWER
ART.414: ALL THINGS WHICH ARE OR MAY
BE THE OBJECT OF APPROPRIATION ARE
CONSIDERED EITHER:
(1)IMMOVABLE ROPERTY; OR
(2)MOVABLE PROPERTY
WHAT IS PROPERTY?
Property is an object or a right which is
appropriated or susceptible of
appropriation by man with capacity to
satisfy human wants and need
ATTRIBUTES OF PROPERTY: (USA)
1. UTILITY (satisfy the moral and
economic needs of man
2. SUBSTANTIVITY OR INDIVIDUALITY
(capable of individual existence)
3. APPROPRIABILITY (susceptibility to
ownership)
ARE RIGHTS UNDER ARTICLE 3 OF THE 1987
CONSTITUTION PROPERTY?
No. Although the concept of property does
not only include corporeal things, whether
solid, liquid or gas, as it includes rights, the
rights covered on Article III of the
Constitution on Bill of Rights are not
deemed property because these are rights
which are not capable, appropriated or
susceptible of appropriation. The rights
contemplated as property are the right to
office, right of a person to his labor within
the meaning of constitutional guarantees.
CLASSES OF RIGHTS CONSIDERED AS
PROPERTY:
1. REAL RIGHT- right which can be
exercised against the whole world
2. PROPERTY RIGHT- the right to
demand the fulfillment of prestation
to give, to do or not to do
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*Property is ALWAYS a thing, but a thing IS
NOT ALWAYS a property
REASON: Things are existing objects
which can be of some use to man; however,
these are broader in scope than property.
There are things which cannot be
appropriated and things only refer to
corporeal objects as distinguished to
property, which may be an object or right.
CLASSIFICATION OF THINGS (CAN)
1. RES COMMUNES – things which
belong to everybody like sunlight,
moonlight moving air but these
things do not qualify as properties as
contemplated under Art.414
because they are beyond human
control or appropriation.
2. RES ALICUJUS – are things which are
owned by a person or group of
persons like house and lot, a parcel
of land. These are things qualified as
properties.
3. RES NULLIUS- things which do not
have any owner like the whale,
sharks wild animals in the forest.
These things are still qualified as
property because this can be placed
under the control by human through
occupation. Once seized by man, it
automatically belongs to him. It is
already his property.
IS AIR A PROPERTY?
Air we breathe is absolutely not a property
but if air is placed on oxygen tanks it now
becomes property as it is placed under the
control of man.
IS HUMAN BODY A THING?
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PROPERTY REVIEWER

No, however when severed from the body
become property like the hair, blood.
IS A CORPSE A PROPERTY?
No. While it holds true that a corpse may be
considered as a thing because it loses its
legal personality, because of moral reason
and public policy, it cannot be considered as
a property.
MAY IT BE SUBJECT OF CONTRACTUAL
RELATION?
Generally, a person’s body whether alive or
dead cannot be the subject of contractual
relation. A person cannot give his body
parts and receive money in exchange of it.
However, there are instances where a
person’s body part may be taken only for
scientific or medical purpose. Body parts
can only be a legacy or a donation under
Organ Donation Act when the person is
dead or immediately before. Stressed must
be put that organs or body parts are not
within the commerce of men.
IMMOVABLE PROPERTIES:
ART.415 enumerated the different
immovable properties, to wit:
Art.415: The following are
immovable property:
1. Land, buildings, roads and
constructions of all kinds
adhered to soil;
2. Trees, plants and growing fruits,
while they are attached to the
land or form an integral part of
an immovable;
3. Everything attached to an
immovable in a fixed manner, in
such a way that it cannot be
separated therefrom without
breaking the material or
deterioration of the object;
4. Statutes, reliefs, paintings or
other objects for use or
ornamentation, placed in
buildings or on lands, by the
owner of the immovable in such
a manner that it reveals the
intention to attach them
permanently to the tenements;
5. Machinery, receptacles,
instruments or implements
intended by the owner of the
tenement for an industry or
works which may be carried on
in a building or on piece of land,
and which tend directly to meet
the needs of the said industry or
works;
6. Animal houses, pigeon-houses,
beehives, fish ponds or breeding
places of similar nature, in case
their owner has placed them or
preserves them with the
intention to have hem
permanently attached to the
land, and forming a permanent
part of it; the animals in these
places are included;
7. Fertilizer actually used on a piece
of land;
8. Mines, quarries, and slag dumps,
while the matter thereof forms
part of the bed, and waters
either running or stagnant;
9. Docks and structures which,
though floating are intended by
their nature and object to
remain at a fixed place on a
river, lake or coast;
10. Contracts for public works and
servitudes and other real rights
over immovable property.

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 3
WHAT IS AN IMMOVABLE PROPERTY?
The ordinary meaning of immovable
property under the Roman Law is one which
firmly fixed or fastened in a definite place.
These are objects which cannot be
transferred from one place to another like
the land or it is impossible to do so because
it will cause damage injury or destruction
like buildings. While we generally view
immovable property as those properties
which etymologically cannot be moved,
transferred or carried from one place to
another, this meaning has been superseded
by its juridical meaning. Under Art. 415,
there are objects which can be transferred
from one person to another without
causing injury or destruction yet are
deemed immovable property.
NOTE BENE: The determination whether a
property is immovable or movable is no
longer dependent whether or not it can be
transferred. The classification is now
dependent whether a thing is included in
the enumeration of Art.415. Logically, all
things enumerated under Art.415 are the
only immovable property following the
principle of expression unius est exclusion
alterius.
JURIDICAL CLASSIFICATION OF IMMOVABLE
PROPERTY: (NIDA)
1.BY NATURE- these are properties which
cannot be moved from one place to
another
2.BY INCORPORATION- these are properties
that are basically movables but are
permanently attached to immovable
3.BY DESTINATION- these are movables but
have been fixed in movable for business
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functions of the owner of the immovable
property
4.BY ANALOGY- these are rights
PAR 1. LANDS BUILDINGS, ROADS AND
CONSTRUCTION OF ALL KINDS ADHERED TO
THE SOIL.
- These are immovable property by
nature and incorporation
Lands- it is by its very nature immovable
and will always be an immovable or real
property.
- A distinction has to be made with
soil, a truckful of soil taken from the
land is a personal property, if placed
to a pot, it is also a personal
property, but once the soil is used to
cover a land for ornamentation or
gardening, it becomes immovable by
incorporation since it will be
permanently attached to an
immovable property which is the
land.
Buildings- these are permanent structures
adhered to the land and removal of it will
cause injury or destruction.
*as distinguished from a barong
barong which is
not a real or immovable property
because it is
not of permanent character but
mere superimpositions on land.
Mortgage:
Real Estate Mortgage- for real property
Chattel Mortgage- mortgage involving
movable property
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 4
CAN A HOUSE BE THE OBJECT OF A
CHATTEL MORTGAGE?
Yes. A house, although a real property may
be a subject of chattel mortgage provided
that the parties mutually agreed to consider
the house a personality and that no
innocent third person shall be prejudiced.
As explained by the Supreme Court in Luna
v. Encarnacion, the SC noted that:
FACTS: Jose Luna executed a chattel
mortgage in favor of Trinidad Reyes which
includes a certain house of mixed materials
to secure the payment of the promissory
note. When Jose Luna failed to pay, the
mortage was forclosed and was purchased
by Trinidad Reyes. Trinidad Reyes
demanded from Jose Luna to surrender the
possession of the property through a
petition filed in the Court of First instance,
Judge Encarnacion then granted the
petition of Trinidad Reyes ordering the
provincial sheriff to place the possession of
the property to Trinidad Reyes, overruling
the opposition of Jose Luna that the
mortgage involved is a chattel mortgage
and not real estate mortgage.
ISSUES: whether or not the property can be
extrajudicially sold
HELD: There is merit in this claim. As may
be gleaned from a perusal of the deed
signed by the parties (Annex "C"), the
understanding executed by them is a
chattel mortgage, as the parties have so
expressly designated, and not a real estate
mortgage, specially when it is considered
that the property given as a security is a
house of mixed materials which by its very
nature is considered as personal property.
Such being the case, it is indeed a mistake
for the mortgagee to consider this
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transaction in the light of Act No. 3135, as
amended by Act No. 4118, as was so
considered by her when she requested the
provincial sheriff to sell it extra-judicially in
order to secure full satisfaction of the
indebtedness still owed her by the
mortgagor. It is clear that Act No. 3135, as
amended, only covers real estate
mortgages and is intended merely to
regulate the extra- judicial sale of the
property mortgaged if and when the
mortgagee is given a special power or
express authority to do so in the deed itself,
or in a document annexed thereto. These
conditions do not here obtain. The
mortgage before us is not a real estate
mortgage nor does it contain an express
authority or power to sell the property
extra-judicially.
But regardless of what we have heretofore
stated, we find that the validity of the sale
in question may be maintained, it appearing
that the mortgage in question is a chattel
mortgage and as such it is covered and
regulated by the Chattel Mortgage Law, Act
No. 1508. Section 14 of this Act allows the
mortgagee to have the property mortgaged
sold at public auction through a public
officer in almost the same manner as that
allowed by Act No. 3135, as amended by
Act No. 4118, provided that the
requirements of the law relative to notice
and registration are complied with. We are
not prepared to state if these requirements
of the law had been complied with in this
case for the record before us is not
complete and there is no showing to that
effect. At any rate, this issue is not now
important because the same can be
threshed out when the opportunity comes
for its determination, nor is it necessary for
us to consider it in reaching a decision in
the present case. Suffice it to state that for
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 5
the present we are not expressing any
opinion on this matter which concerns the
validity of the sale in question for the
reason that this opinion will only be limited
to a matter of procedure relative to the
step taken by the mortgagee in securing the
possession of the property involved.
In the supposition that the sale of the
property made by the sheriff has been
made in accordance with law, and the
question he is confronted is how to deliver
the possession of the property to the
purchaser in case of refusal to surrender its
possession on the part of the debtor or
mortgagor, the remedy of the purchaser,
according to the authorities, is to bring an
ordinary action for recovery of possession
(Continental Gin Co. vs. Pannell, 160 P.,
598; 61 Okl., 102; 14 C. J. S., pp. 1027,
1028). The purchaser cannot take
possession of the property by force either
directly or through the sheriff. And the
reason for this is "that the creditor's right of
possession is conditioned upon the fact of
default, and the existence of this fact may
naturally be the subject of controversy"
(Bachrach Motor Co. vs. Summers, 42 Phil.,
3, 6). The creditor cannot merely file a
petition for a writ of possession as was
done by Trinidad Reyes in this case. Her
remedy is to file an ordinary action for
recovery of possession in order that the
debtor may be given an opportunity to be
heard not only regarding possession but
also regarding the obligation covered by the
mortgage. The petition she has filed in the
lower court, which was not even docketed,
is therefore improper and should be
disregarded.
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CAN THE OWNER QUESTION THE VALIDITY
OF THE CHATTEL MORTGAGE WHEREIN HIS
HOUSE IS THE OBJECT?
No. the validity of the house constituted on
the house which is a real property cannot
be questioned by the owner thereof
because he is placed under estoppels from
denying the existence of chattel mortgage.
PAR 2: TREES, PLANTS AND GROWING
FRUITS, WHILE THEY ARE ATTACHED TO THE
LAND OR FROM AN INTEGRAL PART OF AN
IMMOVABLE.
- These are immovable by nature
Rules on Trees and Plants:
1. Trees and plants of whatever size
are always considered immovable by
their very nature because they are
not to move from one place to
another; or
2. They may be considered immovable
by incorporation when planted
through labor.
Generally, trees and plants of whatever
size, when adhered to the land are always
immovable whether it is by nature or by
incorporation. The distinction is immaterial
because what the provision provides that so
long as the trees or plants are adhered to
the land it will always be treated as
immovable property.
XPN: trees and plants, once
uprooted will be
considered as personal property
already
Rules on Growing Plants:
Notice that par 2 of Art 415 on Immovable
Property, growing plants are also
considered as immovable property. On this
light, we will also follow the rules on trees
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 6
and plants with certain modification as
ruled by the Supreme Court in the Sibal v
Valdez case.
GENERAL RULE: Growing plants are
considered immovable property by
incorporation as long as they had not been
gathered yet.
XPN: Growing plants, although not
gathered yet will be treated as personal
property only for:
1. the purpose of chattel mortgage
2. execution
3. attachment
*only in those three instances as
enumerated by the SC that ungathered
fruits which are generally real properties
may be treated as personal property, in
which case, at all instances if not yet
gathered, always a real property.
PAR 3. EVERYTHING ATTACHED TO AN
IMMOVABLE IN A FIXED MANNER, IN SUCH
A WAY THAT IT CANNOT BE SEPARATED
THEREFROM WITHOUT BREAKING THE
MATERIAL OR DETERIOTION OF THE
OBJECT.
- Immovable by incorporation ( res
vinta)
-it was attached for
permanent purpose
*it is not necessary whether the movable is
attached to the immovable in a fixed
manner by the owner or not, what the
provision provides as distinguished in
Meralco v Board of Assessment and Bord of
Assessment v. Meralco cases, thus:
- the test is the material fact of
incorporation (
meaning it was attached to the
immovable) and
-separation (meaning it was
attached their
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permanently and in case of removal
will cause
injury or deterioration of the object)
PAR 4. STATUES, RELIEFS, PAINTINGS OR
OTHER OBJECTS FOR USE OR ORNAMENTS,
PLACED IN BUILDING OR ON LANDS, BY THE
OWNER OF THE IMMOVABLE IN SUCH A
MANNER THAT IT REVEALS THE INTENTION
TO ATTACH THEM PERMANENTLY TO THE
TENEMENTS.
- Immovable by incorporation and
destination
REQUISTES:
1. The movable property is placed by
the owner of the immovable
property; and
2. There is an intention to make it
permanently attached to the
immovable property
STATUS: the properties contemplated in par
4 are movable property by its nature but
because of the intention of the owner of
the immovable to attached it permanently
to his property, it become real property.
*that is why par 4 specifically states
that it must
be attached by the owner of
immovable property or his agents,
so if attached by a mere tenant, it
will be considered as personal
property. However, if a lessee of a
land attached a movable property
with a stipulation it will remain after
the termination of the lease
contract, it will be considered as
immovable property already.
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DISTINGUISH PAR 3 FROM PAR 4 OF ART
415:
The distinction of Par 3 from Par 4 of Art
415 is very clear, that is:
1. The movable property in PAR 3
cannot be separated from the
immovable property without
breaking or deterioration of the
movable property while the
movable property in PAR 4 can
be separated from the
immovable without breaking or
deterioration.
2. The movable property attached
in PAR 3 may be placed by the
owner of the immovable or the
owner of the movable or third
person while the movable
property attached in PAR 4 must
be attached by the owner of the
immovable property or his agent
either express or implied.
3. The status of the object in PAR 3
is immovable property by
incorporation while in PAR 4 is
immovable by incorporation and
destination.
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PAR 5. MACHINERY, RECEPTACLES,
INSTRUMENTS OR IMPLEMENTS INTENDED
BY THE OWNER OF THE TENEMENT FOR AN
INDUSTRY OR WORKS WHICH MAY BE
CARRIED ON IN A BUILDING OR ON A PIECE
OF LAND, AND WHICH TEND DIRECTLY TO
MEET THE NEEDS OF THE SAID INDUSTRY
OR WORKS.
- Immovable by destination or
purpose
-the object is movable by its object
but because of the intention of the
owner of the tenement to place it
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for the purpose of his industry, it is
deemed immovable property.
WHEN TO USE PAR 3 AND PAR 4?
In classifying the movable object whether it
will be treated as immovable under ART
415, the test is who placed such movable
property. If it was placed not by the owner
of the immovable, apply PAR 3, if it is
placed by the owner of the immovable by
himself, apply PAR 4.
REQUISITES:
1. Must be placed by the owner of the
tenement;
2. The industry is carried in the
building or land to which the
movable property is attached by the
owner; and
3. Such movable property attached
therein is essential to the industry.
SITUATION:
A owned a hospital and placed some
photocopy machineries therein. Are those
machineries considered immovable
property by destination?
No. PAR 5 of ART 415 is very clear that only
those property which is essential to the
industry carried in such building or
tenement will be considered immovable.
The reason for this is because without these
instruments, the industry will not
materialize. Photocopy machineries are not
essential to the industry owned by A,
hence, it is a personal property and not real
property
Rules on machinery instrument and
implement installed by a lesse.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 8
G.R: Machinery, instrument and implement
installed by a lesse is personal pr movable
property.
XPN: When the lesse agreed to give it to the
lessor upon the termination of the lease
contract.
NOTA BENE: the movable object in this par
is NOT ATTACHED, it is the intention to
place it their because it is essential to the
industry carried in the building which
recognized it as immovable property.
WHEN IS MACHINERY PLACED TO THE
LAND OR TENEMENT CONSIDERED
IMMOVABLE PROPERTY?
Under PAR 5 of ART 415, when the
machinery, receptacles, instruments or
implements intended by the owner of the
tenement for an industry or works which
may be carried on in a building or piece of
land and which tend to directly to meet the
needs of the said industry or works, such
machinery is deemed immovable.
PAR 6.ANIMAL HOUSES, PIGEON-HOUSES,
BEEHIVES, FISH PONDS OR BREEDING
PLACES OF SIILAR NATURE, IN CASE THEIR
OWNER HAS PLACED THEM OR PRESERVES
THEM WITH THE INTENTION TO HAVE
THEM PERMANENTLY ATTACHED TO THE
LAND, AND FORMING A PERMANENT PART
OF IT; THE ANIMALS IN THESE PLACES ARE
INCLUDED.
- these are immovable by destination
Rules:
1. The house contemplated here is
animal houses and is considered
immovable because they are
adhered to the land permanently by
the intention of the owner,
2. Animals in such houses are also
considered immovable but once
gathered or has escaped become
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movable because they ceased to be
a part of such house.
3. Cages is not included so it will be
considered personal property since
they can be moved from one place
to another.
PAR 7. FERTILIZER ACTUALLY USED ON A
PIECE OF LAND.
- These are immovable by
incorporation
- Par 7 is very clear and unequivocal
that only fertilizers used on a piece
of land are deemed immovable since
it is already placed in the land and
you can never take it or separate it
from the land. If such fertilizers are
still on the sacks, although there is
intention to place them or use them
on land, it is still movable.
PAR 8. MINES, QUARRIES AND SLAG
DUMPS, WHILE THE MATTER THEREOF
FORMS PART OF THE BED, AND WATERS
EITHER RUNNING OR STAGNANT.
- Mines, when still attached to the
land are immovable, once removed,
it is now movable property
PAR 9. DOCKS AND STRUCTURE WHICH,
THOUGH FLOATING, ARE INTENDED BY TEIR
NATURE AND OBJECT TO REMAIN AT A
FIXED PLAE ON A RIVER, LAKE OR COAST.
-these are immovable by destination
-floating restaurant if in form of cruise is
movable
-what is determining to this is although they
are floating, they are intended to be
stationary.
PAR 10. CONTRACTS FOR PUBLIC WORKS
AND SERVITUDES AND OTHER REAL RIGHTS
OVER IMMOVABLE PROPERTY.
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- These are immovable by analogy
e.g. DPWH contracted to create a bridge.
The contract is immovable also because the
object of the contract is a bridge, which is
immovable.
IS VESSEL IMMOVABLE PROPERTY?
No. Vessel is a personal or movable
property. It cannot be considered as an
immovable property because it is not
among the properties enumerated in ART
415 and it is in its very nature that it is
movable. However, it can be an object of
Real Mortgage by reason of its value
although regarded as movable property but
it will never be treated as real property.
MOVABLE PROPERTY
ART.416. THE FOLLOWING THINGS ARE
DEEMED TO BE PERSONAL PROPERTY:
1. THOSE MOVABLES SUSCEPTIBLE OF
APPROPRIATION WHICH ARE NOT
INCLUDED IN THE PRECEDING
ARTICLE;
2. REAL PROPERTY WHICH BY ANY
SPECIAL PROVISION OF LAW IS
CONSIDERED AS PERSONALITY;
3. FORCES OF NATURE WHICH ARE
BROUGHT UNDER CONTROL BY
SCIENCE; AND
4. IN GENERAL, ALL THINGS WHICH
CAN BE TRANSPORTED FROM
PLACE TO PLACE WITHOUT
IMPAIRMENT OF THE REAL
PROPERTY TO WHICH THEY ARE
FIXED.
PAR 1. THOSE MOVABLES SUSCEPTIBLE OF
APPROPRIATION WHICH ARE NOT
INCLUDED IN THE PRECEDING ARTICLE.
- Cars, jewelries, clothes etc
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PAR 2. REAL PROPERTY WHICH BY ANY
SPECIAL PROVISION OF LAW IS CONSIDERED
AS PERSONALITY
- Example is the growing crops which
is inherently immovable but by
virtue of law, it is regarded as
movable property.
PAR 3. FORCES OF NATURE WHICH ARE
BROUGHT UNDER CONTROL BY SCIENCE
-when controlled is considered personality
(example the electricity)
SITUATION:
CAN A PERSON BE CONVICTED OF A CRIME
OF THEFT FOR DIVERTING ELECTRIC POWER
FOR HIS USE THROUGH JUMPER?
Yes. The importance of distinguishing an
object if it is movable or immovable has its
root in Criminal Law. In criminal law, for
crime of theft, only personal property may
be an object of it. The test provided here by
the Supreme Court is whether it can be an
object of appropriation by another than the
owner. Also gas or electricity can now be
under the control of man.
*however, services should not be equated
to gas or electricity. These although
properties cannot be subject of theft
because it cannot be taken.
*only in case of theft that the test whether
is can e appropriated will be applied
because under the criminal law, only
personal property can be a subject of theft.
TEST TO DETERMINE WHETHER A
PROPERTY IS MOVABLE: (ELFM)
1. EXCLUSION- when not enumerated
in ART 415, it is movable;
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 10
2. LAW- by special provision of law
3. FORCES OF NATURE
4. MOBILITY- if it can be transferred
from one place to another
PAR 4. IN GENERAL, ALL THINGS WHICH
CAN BE TRANSPORTED FROM PLACE TO
PLACE WITHOUT IMPAIRMENT OF THE REAL
PROPERTY TO WHICH THEY ARE FIXED.
- These are transportable things from
palce to place without impairing he
movable to which they are attached
Art. 417. The following are also considered
as personal property:
(1) Obligations and actions which have
for their object movables or demandable
sums; and
(2) Shares of stock of agricultural,
commercial and industrial entities,
although they may have real estate.
- This covers credits, that is the right
to recover movables and
demandable sums of money
(matured credits) are personal
property.
Art. 418. Movable property is either
consumable or nonconsumable. To the
first class belong those movables which
cannot be used in a manner appropriate to
their nature without their being
consumed; to the second class belong all
the others.
CLASSIFICATION OF PROPERTY AS TO
CONSUMABILITY
1. CONSUMABLE PROPERTY-one which
cannot be used without being consumed ,
being eaten or used. ( one use only
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example, the food, to ue it, you must eat it
and once eaten, it is gone)
2. NON-CONSUMABLE PROPERTY- one
which can be used without being
consumed, eaten or used up. (example, the
book, to use it, you read it, tomorrow you
can still use it by reading it again)
* the distinction is whether a property can
be use over and over again. If yes, it is non-
consumable, if not, it is consumable
DISTINGUISH CONSUMABLES FROM
FUNGIBLES:
1. Consumables are those properties
which cannot be used according to
their nature without being
consumed, eaten or used up, while
fungible things which can be
substituted by another things.
2. The test whether it is consumable or
not is whether it cannot be used
over and over again, while the test
for fungible things is based on the
intention of the parties.
3. Consumables things does not
necessarily follows it is fungible
things
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Fungible things- things which can be
substituted or replaced by an equal
quantity and quality.
e.g. books,
Non-Fungible things- things which cannot
be substituted by the same specie because
it must be returned to the owner.
The Test is based on the intention of the
parties.
*Consumable and Fungible are not of the
same meaning. As to whether a thing is
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fungible or non-fungible is not dependent
to its consumability.
Art. 419. Property is either of public
dominion or of private ownership.
CLASSIFICATION OF PROPERTY ACCORDING
TO OWNERSHIP:
1. PROPERTY OF PUBLIC DOMINION- is
the property of the state in its public
capacity, which is intended for
public use, for some public service
or for the development of national
wealth.
2. PROPERTY OF PRIVATE OWNERSHIP-
consists of all property belonging to
private persons either individually or
collectively.
Art. 420. The following things are
property of public dominion:
(1) Those intended for public use, such as
roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks,
shores, roadsteads, and others of similar
character;
(2) Those which belong to the State,
without being for public use, and are
intended for some public service or for the
development of the national wealth.
KINDS OF PROPERTY OF PUBLIC DOMINION:
1. PROPERTY FOR PUBLIC USE- these
are properties which can be used by
everybody like roads, bridges, state
rivers and the like.
2. PROPERTY FOR PUBLIC SERVICE-
these are properties belonging to
the state which can be used only by
those who are authorized to do so
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PROPERTY REVIEWER
like the buildings for government
offices or departments, the vehicles
for public officials, firearms of the
police force etc.
3. FOR DEVELOPMENT OF NATIONAL
WEALTH- these are the forest lands,
minerals etc.
CAN THE PROPERTIES OF PUBLIC
DOMINION BE SUBJECT OF NEGOTIATIONS
FOR CONTRACT PURPOSES?
No. Properties of public dominion are
properties outside the commerce of men,
hence when it is outside the commerce of
men it cannot be subject of negotiation for
contract purposes
CHARACTERISTICS OF PROPERTY OF PUBLIC
DOMINION:
1. Outside the commerce of man;
2. Cannot be acquired of prescription;
3. Cannot be levied upon be execution
or attachment;
4. Generally can be used by everybody
except properties intended for
public services; and
5. May either be real or personal
property
*Property of Public dominion are not
capable of appropriation on the strength of
acquisitive prescription and possession
thereof, however long cannot ripen into
private ownership.
DOES THE COLLECTION OF FEES FOR THE
USE PROPERTY OF PUBLIC DOMINION
AFFECT ITS PUBLIC CHARACTER?
No. As explained by the SC in MANILA
INTERNATIONAL AIRPORT AUTHORITY VS
COURT OF APPEALS, it was noted that as
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long as the property is intended for public
use, it will remain property of public
dominion notwithstanding the fact that fees
have been collected from the people. Such
fees collected will not affect the
characteristic of the property as such are
only used for maintenance purposes.
Art. 421. All other property of the State,
which is not of the character stated in the
preceding article, is patrimonial property.
WHAT ARE PATRIMONIAL PROPERTY OF
THE STATE?
These are properties of the state which is
not intended for public use, public service
or for the development of the national
wealth. These are acquired by the state in
its private capacity, hence can be subject to
prescription or appropriation and can be an
object of ordinary contracts or agreements.
Art. 422. Property of public dominion,
when no longer intended for public use or
for public service, shall form part of the
patrimonial property of the State.
HOW DOES THE CONVERSION FROM
PROPERTY OF PUBLIC DOMINION TO
PATRIMONIAL PROPERTY EFFECTED?
The conversion from property of public
dominion to patrimonial property is
effected through a formal declaration from
the Executive or Legislative Department
that it is no longer needed for said
purposes.
CAN THE PROPERTY OF PUBLIC DOMINION
INTENDED FOR THE DEVELOPMENT OF
NATIONAL WEALTH BE CONVERTED TO
PATRIMONIAL PROPERTY?
No. Art 422 is very clear that only property
of public dominion intended for public use
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
and public service when no longer intended
for that purpose may be converted to
patrimonial property and excluded those
intended for the development of national
wealth.
WHAT IF THE PUBLIC PROPERTY IS
ABANDONED, CAN IT BE ALIENATED
ALREADY?
No. As a rule, formal declaration from the
Executive Department that the property is
no longer intended for public use or public
service is a condition sine qua non for it to
be converted to patrimonial property and
be alienated. Absence of formal
declaration, the property continues to form
part of the public domain and cannot be
alienated or be the subject f acquisitive
prescription.
CAN LOCAL GOVERNMENT DECLARE OR
WIHDRAW A PUBLIC PROPERTY FROM
PUBLIC USE?
As a rule, it is the Executive Department
who is responsible for such formal
declaration. The exception is when such
authority is granted by the law.
Rule on conversion of property of public
dominion:
G.R.: There must be a formal declaration
from the Executive Department declaring
that the public property is no longer
intended for that use.
XPN: when the property has ceased to be
used for public use and is used for another
purpose.
Art. 423. The property of provinces, cities,
and municipalities is divided into property
for public use and patrimonial property.
Art. 424. Property for public use, in the
provinces, cities, and municipalities,
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consist of the provincial roads, city streets,
municipal streets, the squares, fountains,
public waters, promenades, and public
works for public service paid for by said
provinces, cities, or municipalities.
CLASSES OF PROPERTY OF POLITICAL
SUBDIVISIONS OF THE STATE:
1. Property for public use
2. Patrimonial Property
Property for public use in provinces, cities
and municipalities are governed by the
same rules as property of public dominion
of same character. Hence it is outside the
commerce of man. As long as they are
devoted for public use or intended for
public use, they are not subject to ordinary
contracts, cannot be donated, attached or
levied upon on execution.
Art. 424. Property for public use, in the
provinces, cities, and municipalities,
consist of the provincial roads, city streets,
municipal streets, the squares, fountains,
public waters, promenades, and public
works for public service paid for by said
provinces, cities, or municipalities.
REGALIAN DOCTRINE- all properties not
clearly falling within private ownership is
owned by the State.
WHO MAY OWN LANDS?
Only Filipino citizen can acquire alienable
and disposable public lands.
CAN ALIEN ACQUIRE PRIVATE OWNERSHIP
OVER THE LANDS?
As a general rule, aliens have no right to
acquire any public or private lands in the
Philippines. However, through hereditary
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PROPERTY REVIEWER
succession, an alien may acquire alienable
and disposable land.
KRIVENKO DOCTRINE
The capacity to acquire private lands is
made dependent on the capacity to acquire
or lands of the public domain.
Under the Krivenko Doctrine, non-Filipinos
cannot acquire or hold title to private lands
or to the lands of the public domain except
only by way of legal succession.
OWNERSHIP
Art. 427. Ownership may be exercised
over things or rights.
OWNERSHIP- is the juridical relation of a
person over a thing by virtue of which said
person has the exclusive power or authority
to receive all the benefits and advantages
arising from said thing, save those restricted
by law or by the recognized rights of others.
- A thing pertaining to one person is
completely subjected to his will in
everything not prohibited by law or
the concurrence with the rights of
another.
- Can own both things and rights.
RIGHTS OF AN OWNER:
1. JUS UTENDI- RIGHT TO USE
2. JUS FRUENDI- RIGHT TO FRUITS
3. JUS DISPONDENDI- RIGHT TO
DISPOSE
4. JUS VINDICANDI- RIGHT TO
RECOVER
5. JUS ABUTENDI- RIGHT TO ABUSE
6. RIGHT TO EXCLUDE
7. RIGHT TO ENCLOSE
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KINDS OF OWNERSHIP:
1. FULL OWNERSHIP- includes all the
rights of an owner
2. NAKED OWNERSHIP- case of
usufruct; right to use and right to
fruits has been denied
3. SOLE OWNERSHIP- ownership
belongs to only one person
4. CO-OWNERSHIP- ownership belongs
to two or more
Art. 428. The owner has the right to
enjoy and dispose of a thing, without other
limitations than those established by law.
The owner has also a right of action
against the holder and possessor of the
thing in order to recover it.
RIGHT TO ENJOY
- Includes right to collect the fruits or
benefits
- Right to use and utilize
RIGHT TO DISPOSE:
- The power of an ower to sell,
donate, alienate or encumber his
property.
RIGHT TO RECOVER:
- Right of the owner to recover the
possession of his property which is
unlawfully taken or withheld from
him by another.
- This is a right exclusively granted by
the law to an owner but the owner
himself can transfer this right to
another person who can maintain
the action against the wrongdoer.
ACTIONS FOR RECOVERY OF POSSESSION
(REMEDY OF OWNER)
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
FOR REAL PROPERTY:
1. FORCIBLE ENTRY OR UNLAWFUL
DETAINER
2. ACCION PUBLICIANA
3. ACCION REINVINDICATORIA
FOR PERSONAL PROPERTY:
1. REPLEVIN
ANCILLARY REMEDIES COMMON TO BOTH
ACTIONS:
1. WRIT OF PRELIMINARY
MANDATORY INJUNCTION
2. WRIT OF POSSESSION
Actions for Real Property by the owner:
FORCIBLE ENTRY
- This is an action brought by the
owner for the recovery of
possession de facto or the material
or physical possession of real
property when it was deprived to
him through force, intimidation,
strategy, threat, stealth.
- This action must be brought 1 year
from dispossession
- The issue here is that the person,
being the owner of the property
seeks to repossess his property
which was materially taken away
from him through FISTS. Otherwise
put, he is still the owner before and
after it was taken, however since the
property was taken to him, he
cannot use it.
- Possession is unlawful from the very
beginning (it was taken by a third
person against the will of the owner)
UNLAWFUL DETAINER
- Action brought by the landlord,
vendor, vendee or other person
when the land was unlawfully
withheld after the expiration or
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termination of the contract which
grant the person, not the owner to
hold the real property.
- This action must be brought one
year from unlawful possession
either from: 1.) the time of the
expiration or termination of the
contract; or 2.) from the date of
demand to vacate
- The issue in this action is not to
recover the property because the
owner is still in possession of the
property in the concept of an owner
nor ownership, but to exact specific
performances and that is to vacate
the real property.
- Possession by the third person is
initially lawful through a contract,
express or implied but upon
expiration or termination of the
same, the person withheld the
property from its lawful owner, thus
the owner cannot exercise his rights
over the property.
ACCION PUBLICIANA
- Is a plenary action to recover the
better right of possession.
- The issue here is possession de jure
- This action will prescribes in 10
years which will reckon 1 year after
the unlawful possession. (the action
must be brought only 1 year after
the unlawful possession)
- Absence of FISTS
ACCION REIVINDICATORIA
- Action to recover property based on
the allegation of ownership.
- Within 10 to 30 years
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
When is Preliminary Mandatory Injunction
filed?
Availed of in case of forcible entry and
during the appeal, requiring the defendant
to do something or give back the possession
of the land.
WRIT OF POSSESSION- is an order directing
the sheriff to enter to the land and give the
possession to the person entitled under the
judgment.
WHEN ACCION PUBLICIANA OR ACCION
REIVINDICATORIA MAY BE FILED?
These two actions is filed where in the
complaint it does not aver the state how
entry is effected and when dispossession
started.
----------------------------------------------------------
----------------
DISTINGUISH Forcible Entry from Accion
Publiciana:
Forcible Entry is distinguish from Accion
Publiciana in the following respects:
1. Forcible Entry is filed 1 year from
the time of unlawful possession
through FISTS; while Accion
publiciana is filed 1 year after the
unlawful possession without FISTS,
notwithstanding and shall prescribe
in 10 years.
2. Forcible Entry is concerned with the
issue of right to physical possession
of the real property, while acion
publiciana is concerned with the
issue of who has the better right of
possession over the real property.
3. Forcible entry is filed at the MTC
while accion publiciana is filed at the
RTC
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 16
WHAT ARE THE LIMITATIONS ON RIGHT OF
OWNERSHIP:
1. Limitations imposed by the State:
a. Police Power
b. Power of Eminent Domain
c. Power of Taxation
2. Limitations imposed by the Law:
a. Easement relating to water
b. Right of Way
c. Party wall
d. Light and view
e. Drainage
f. Intermediate distance
g. Easement arising from nuisance
h. Lateral and subjacent support.
3. Limitations imposed by the owner
4. Those arising from conflict or private
rights
5. Limitations imposed by the
Constitution
Art. 429. The owner or lawful possessor
of a thing has the right to exclude any
person from the enjoyment and disposal
thereof. For this purpose, he may use such
force as may be reasonably necessary to
repel or prevent an actual or threatened
unlawful physical invasion or usurpation of
his property.
WHAT IS THE PRINCIPLE OF SELF HELP?
This is a principle which authorizes an
owner or lawful possessor of a property to
use reasonable counter-force to prevent or
stop another person from taking the
former’s property. There must be no delay
in the pursuit, otherwise, his recourse will
be to go to the court for the recovery of
property.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
CAN A THIRD PERSON EXERCISE THE RIGHT
OF SELF HELP?
Generally, the right to use force to defend a
property is available only to the immediate
possessor, unless he is acting as a third
person coming to the defense of the
property as a negotiorum gestio.
REQUISITES OF PRINSIPLE OF SELF-HELP:
1. Reasonable force is used.
2. Such force is used by the owner or
lawful possessor.
3. There is no delay; and
4. Actual or threatened physical
invasion or usurpation or
immediately after the dispossession
to regain possession
What is the measure of reasonableness?
The reasonableness of the defensive acts
resorted to by the possessor is determined
not by what he imagined to exist but by the
objective situation.
Art. 430. Every owner may enclose or
fence his land or tenements by means of
walls, ditches, live or dead hedges, or by
any other means without detriment to
servitudes constituted thereon.
What is the limitation on the right of the
owner to enclose or fence one’s land or
tenement?
Every owner may enclose or fence his land
or tenement by means of walls, ditches, live
or dead hedges or by any other means
provided that in so fencing the property, no
servitude or easement constituted thereon
should be impaired.
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Art. 431. The owner of a thing cannot
make use thereof in such manner as to
injure the rights of a third person.
SIC UTERE TUO UT ALIENUM NON LAEDAS
- A property owner can use his
property in any manner he desires
provided he does not injure the
rights of others or greatly impair the
public rights and interests of the
community.
Art. 432. The owner of a thing has no
right to prohibit the interference of
another with the same, if the interference
is necessary to avert an imminent danger
and the threatened damage, compared to
the damage arising to the owner from the
interference, is much greater. The owner
may demand from the person benefited
indemnity for the damage to him.
STATE OF NECESSITY
Is the principle which authorizes the
destruction of a property which is lesser in
value to avert danger poised to another
property the value of which is much
greater.
Under the principle of state of necessity,
the owner of the property is obliged
tolerate the destruction of his property to
prevent damage which will be of greater
value than that of his property.
NOTE: In order for the doctrine of state of
necessity to apply, such destruction of
property must be indispensable to prevent
the damage which is of greater value than
that of the property.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
What is the right of the owner whose
property is destructed by reason of state of
necessity?
The owner will seek reimbursement from all
those who benefited from the destruction
of his property.
WHAT IS THE EFFECT OF ERRORS,
MISTAKES OR MISCALCULATIONS IN STATE
OF NECESSITTY?
If through error, mistake or miscalculation,
a person thought that he is in a state of
necessity when in fact he is not, and in the
process he destroyed the property, his acts
will be illegal and the owner is justified in
using counter-force to prevent the
destruction of his property. The person who
destroyed the property must indemnify the
owner of the sacrificed property for
damages brought by his destruction to the
property.
In case of conflict between state of
necessity and state of self-help, state of
necessity will prevail.
The reason for this is under the state of
necessity there is no unlawful aggression
when a group of persons acts pursuant to
the right given in a state of necessity.
Art. 433. Actual possession under claim
of ownership raises disputable
presumption of ownership. The true owner
must resort to judicial process for the
recovery of the property.
WHEN CAN THERE BE A DISPUTABLE
PRESUMPTION OF OWNERSHIP?
There is a disputable presumption of
ownership when a person is in actual
possession of the property under the claim
of ownership. Thus, the person in
possession of the property is presumed to
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be the owner subject to strong, clear and
convincing evidence to the contrary.
WHAT IS THE RESORT OF THE OWNER
REBUTTING THE PRESUMPTION?
The owner may resort to judicial process to
recover the property to the person.
Art. 434. In an action to recover, the
property must be identified, and the
plaintiff must rely on the strength of his
title and not on the weakness of the
defendant's claim.
REQUISITES FOR ACTION TO RECOVER:
1. The plaintiff must properly
indentified the property;
2. The plaintiff must have better title
over the defendant; and
3. The plaintiff must rely on the
strength of his title and not on the
weakness of defendant’s title
In properly identifying the property the
plaintiff must establish the boundary of the
land then and the established boundaries
must be exactly the same with the surveyed
one. Failure to do so will justify the
dismissal of the action.
The plaintiff must have a better title than
the defendant so that it will always be in his
favor.
WHY DOES THE PLAINTIFF MUST NOT RELY
ON THE WEAKNESS OF THE DEFENDANT’S
CLAIM?
The plaintiff must stand on the strength of
his title and not on the weakness of the
defendant’s claim. This is so because if the
plaintiff cannot prove he has a better title
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PROPERTY REVIEWER
or prove he has a strong, clear and credible
evidence, his claim must be dismissed even
if the defendant’s title is weak. The reason
for this is in case both evidence it weak, the
presumption of ownership will prevail
because there is already ownership
presumed. Other reasons are, there is a
possibility that neither the plaintiff nor the
defendant is the true owner of the
property, being the case, it is the one who is
in possession will be preferred; there is a
presumption raised in favor of the
defendant and he is not obliged to prove
better title than the plaintiff, it is the
plaintiff who must prove his better title
than the defendant; the possessor is always
presumed to be in good faith.
Art. 435. No person shall be deprived of
his property except by competent
authority and for public use and always
upon payment of just compensation.
Should this requirement be nit first
complied with, the courts shall protect
and, in proper case, restore the owner in
his possession.
General rule: No person shall be deprived
of his property.
XPN: When through a competent authority,
the private property will be used for public
use and upon just compensation.
Eminent domain:
This is the right of the state to acquire
private property for public use upon
payment of just compensation.
Expropriation:
It is the process whereby the private
property is taken by the competent
authority from its owner for public use.
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REQUISITES OF EMINENT DOMAIN:
1. Private property is the object of
expropriation;
2. The property is taken by the State or
competent authority;
3. The purpose for taking is for public
use;
4. The taking must be attended with
due process.
- The object of expropriation is always
a private property which will be
devoted for public use.
- The property must be taken by the
State, if the expropriator is not the
State, there must be a specific law
expressly granting the power of
eminent domain .
How is due process observed?
The State or any competent authority,
through a specific law, may not
immediately take the property when it
needs such property. The expropriator
must file first the expropriation
proceeding before a proper court. This
is for the purpose to assert that the
property to be expropriated will be used
for public use. If the court finds that
such property is not really needed for
public use, the property cannot be
expropriated,
CAN THE PREVIOUS PRIVATE OWNER
RECOVER HIS PROPERTY WHEN ITS USE
FOR PUBLIC PURPOSE CEASED?
Whether or not the previous private
owner may recover his property when it
is no longer use for public use depends
on the tenor of the decree of
expropriation issued by the court. If the
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PROPERTY REVIEWER
decree of title is absolute and grants full
ownership to the State, the private
owner cannot recover the property
even its public character ceased. If the
decree of title has a condition that it will
revert back to the owner of the
property when the property is no longer
use for public purpose, the owner may
reacquire the property he previously
owned.
Payment of just compensation
- The payment of just compensation
need not be paid at the time of
taking, the law allows it to be paid
within a reasonable time.
WHAT IS THE EFFECT WHEN THE JUST
COMPENSATION IS NOT PAID?
As a general rule, when the property is
expropriated for public use and the
private owner was not paid of the just
compensation, he cannot recover the
property, he may go to the COA for the
claim of sum of money. However, while
the law allows that just compensation
be not paid immediately at the time of
taking, the private owner may recover
the property if it is not paid within the
reasonable time prescribed by the law,
which is 5 years from the finality of
judgment.
CAN THE PRIVATE PROPERTY BE
EXPROPRIATED FOR PRIVATE USE?
YES, when the purpose of expropriation
is for socialized housing to resolve
squatting. The fact that only few will
benefit from this will not cease the
essence that it is for public use.
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Art. 436. When any property is
condemned or seized by competent
authority in the interest of health, safety
or security, the owner thereof shall not be
entitled to compensation, unless he can
show that such condemnation or seizure is
unjustified.
As a rule, when a private property is
expropriated for public use, the private
owner must be paid with just
compensation. However, if the private
property expropriated is used for the
interest of health, safety or security, the
private owner is not entitled for the just
compensation.
Art. 437. The owner of a parcel of land is
the owner of its surface and of everything
under it, and he can construct thereon any
works or make any plantations and
excavations which he may deem proper,
without detriment to servitudes and
subject to special laws and ordinances. He
cannot complain of the reasonable
requirements of aerial navigation.
WHAT IS THE EXTENT OF THE OWNERSHIP
OF A PARCEL OF LAND?
The owner of the parcel of land is also the
owner of the surface and sub-surface
thereof. He is also the owner of the aerial
space exactly corresponding to the size of
his land subject to reasonable requirements
of aerial navigation.
Sub-surface right
The right extended to the owner of the
parcel of land with respect to its sub-
surface is up to the extent that the owner
could utilize it. However, when minerals
found it, it will be owned by the State
pursuant to Regalian doctrine as these
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PROPERTY REVIEWER
minerals form part of the property of the
State for the development of national
wealth.
Art. 437. The owner of a parcel of land is
the owner of its surface and of everything
under it, and he can construct thereon any
works or make any plantations and
excavations which he may deem proper,
without detriment to servitudes and
subject to special laws and ordinances. He
cannot complain of the reasonable
requirements of aerial navigation. (350a)
SURFACE AND SUBSURFACE RIGHTS – The
owner of a parcel of land, no matter how
small, is the owner of the surface thereof.
And it is presupposed that he owns the
underneath or sub-surface up to the center
of the earth.
STANDARD OF SUBSURFACE: Economic
Utility, up to the center of the earth but
practically not because its already hot.
Art. 438. Hidden treasure belongs to the
owner of the land, building, or other
property on which it is found.
Nevertheless, when the discovery is made
on the property of another, or of the State
or any of its subdivisions, and by chance,
one-half thereof shall be allowed to the
finder. If the finder is a trespasser, he shall
not be entitled to any share of the
treasure.
If the things found be of interest to science
of the arts, the State may acquire them at
their just price, which shall be divided in
conformity with the rule stated. (351a)
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Art. 439. By treasure is understood, for
legal purposes, any hidden and unknown
deposit of money, jewelry, or other
precious objects, the lawful ownership of
which does not appear. (352)
HIDDEN TREASURE – unknown deposit of
money, jewelry, or other precious objects,
the lawful ownership of which does not
appear.
REQUISITES:
1. What is listed and that of the same
class. Does NOT include minerals
2. The deposit is hidden or unknown
3. The lawful owner cannot be traced
or identified. If the lawful owner is
apparent, it is not a hidden treasure
GR: If the owner is finder, it totally belongs
to the owner of the land, building or other
property where it is found
XPNS: If finder is different from the owner,
finder is entitled to ½ if:
1. Discovery was made on the property
of another, or of the State or any of
its political subdivisions
2. Discovery was made by chance
3. He is not a trespasser or agent of
landowner
NOTE: The State may in the interest of
SCIENCE or ARTS acquire such hidden
treasure at a just price to be as allocated
above.
*A trespasser is not entitled to get any
share of the treasure. Reason: He cannot be
allowed to benefit from such UNlawful act.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
*Right of finder employed to look for
treasure: No share in the treasure unless
agreed upon since he was already hired
hence a receiver of a wage.
*Married spouses? Automatically to the
conjugal property
WOULD YOU STILL BE CONSIDERED A
FINDER BY CHANCE IF YOU ARE HIRED?
Yes since you pushed your luck even if it
was intentional.
YAMASHITA TREASURE?
75% - State, 25% finder. The basis of this is
PD 7026-A which is a special law enacted
for that matter.
CHAPTER 3
RIGHT OF ACCESSION
GENERAL PROVISIONS
Art. 440. The ownership of property gives
the right by accession to everything which
is produced thereby, or which is
incorporated or attached thereto, either
naturally or artificially. (353)
WHAT IS ACCESSION?
The right of accession is the right of
ownership of which an owner has over the
products of said thing, as well as to all
things inseparably attached or incorporated
thereto whether artificially or naturally. The
first part is accession discreta (fruits) and
the second one is accession continua
(attached or incorporated)
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 22
WHAT ARE THE CLASSIFICATIONS OF
ACCESSION?
A. Accession to the fruits (discreta)
1. Natural fruits – spontaneous
products of the soil and the
young of the animals
2. Industrial fruits – those
produced by cultivation or labor
3. Civil rights – rents of buildings,
price of leased lands and other
property and the amount of
perpetual or life annuities or
other similar income
B. Accession by attachment or
incorporation (continua)
aa. Real property
I. Accession Industrial
1. Building
2. Planting
3. Sowing
II. Accession natural
1. Alluvium
2. Avulsion
3. Change of course of
rivers
4. Formation of islands
bb. Personal property
I. Adjunction or conjunction
1. Soldering (Soldadura) –
soldering
a. Ferruminatio – objects
are same metals
b. Plumbutura – objects are
of different metals
2. Engraftment (Inclusion)
3. Weaving (Tejido)
4. Painting (Pintura)
5. Writing (Escritura)
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II. Mixture (confusion – liquids;
commixtion – solids)
III. Specification
IS ACCESSION A MODE OF ACQUIRING
OWNERSHIP?
No. The only modes of acquiring ownership
are: (STOPID-Love)
1. Succession
2. Tradition as a consequence of
certain contracts
3. Occupation
4. Prescription
5. Intellectual creation
6. Donation
7. Law
*Article 440 is not applicable to foreshore
land adjacent to the sea because
automatically it becomes part of the public
domain.
SECTION 1. - Right of Accession with
Respect to What is Produced by Property
Art. 441. To the owner belongs:
(1) The natural fruits;
(2) The industrial fruits;
(3) The civil fruits. (354)
GR: Right to fruit requires no prior act. It is
automatically vested with the owner.
XPN:
1. Antichresis – creditor acquires the
right to the fruits
2. Lease of lands – lessee gets the
fruits unless there was a prior
agreement
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 23
3. Usufruct – usufructuary entitled to
the fruits
4. Possessor in good faith – entitled to
the fruits received before the
possessor is legally interrupted in his
possession
The judgment detour in possession of a
parcel of land sold under execution is
entitled to collect the fruits during the one
year period of redemption.
A stock dividend is a civil fruit of the original
shares just like the offspring of an animal
which may be sold independently of its
mother
Art. 442. Natural fruits are the
spontaneous products of the soil, and the
young and other products of animals.
Industrial fruits are those produced by
lands of any kind through cultivation or
labor.
Civil fruits are the rents of buildings, the
price of leases of lands and other property
and the amount of perpetual or life
annuities or other similar income. (355a)
THREE KINDS OF FRUITS?
Natural fruits – spontaneous products of
the soil and the young of the animals
Examples of spontaneous products of the
soil: cogon, grass, mushrooms
Examples of other products of animal:
puppies, calves, eggs of fowls, milk of
animals like carabaos, goats, cows
Industrial fruits – those produced by
cultivation or labor
Examples: corn, palay, cultivated
vegetables, fruits planted by man
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Civil rights – rents of buildings, price of
leased lands and other property and the
amount of perpetual or life annuities or
other similar income
Examples: rents of buildings, lands or other
property including personal property like
cars for rent, perpetual annuities or other
similar income, including interests to loans
*Ownership of an animal offspring when its
progenitors (male and female animals)
belong to different owners – MOTHER
Art. 443. He who receives the fruits has the
obligation to pay the expenses made by a
third person in their production, gathering,
and preservation. (356)
*Exclusive list of production, gathering of
fruits and preservation. It does not include
improvement of property.
*Principle behind the need to reimburse is
that unjust enrichment should be avoided
*Third person is the one involved – not a
privy in the juridical relations of the
landowner and the builder, planter or
sower
*Regardless of loss or gain, third person
should be paid
Art. 444. Only such as are manifest or born
are considered as natural or industrial
fruits.
With respect to animals, it is sufficient that
they are in the womb of the mother,
although unborn. (357)
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 24
TIME WHEN FRUITS ARE CONSIDERED TO
EXIST:
1. Perennial Fruits – physically appear
on the trees – coconuts, mangoes,
durians, jackfruits, no need of
replanting after bearing fruits
2. Annual fruits – deemed to exist from
the moment their seedlings appear
or sprout from the ground, palay,
monggo, corn, etc
3. Young of animals – sufficient that
they are obviously subsisting in the
womb of the dam, although unborn
yet. They do not have to be born
alive with certain hours to become
animals like humans in Article 41.
SECTION 2. - Right of Accession with
Respect to Immovable Property
Art. 445. Whatever is built, planted or
sown on the land of another and the
improvements or repairs made thereon,
belong to the owner of the land, subject to
the provisions of the following articles.
(358)
*Materials used belong to third person?
Builder and sower principally liable, land
owner subsidiary liable
*Subsidiary liability will only arise when the
principal has no capacity to pay or is
insolvent
Art. 446. All works, sowing, and planting
are presumed made by the owner and at
his expense, unless the contrary is proved.
(359)
Art. 447. The owner of the land who makes
thereon, personally or through another,
plantings, constructions or works with the
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materials of another, shall pay their value;
and, if he acted in bad faith, he shall also
be obliged to the reparation of damages.
The owner of the materials shall have the
right to remove them only in case he can
do so without injury to the work
constructed, or without the plantings,
constructions or works being destroyed.
However, if the landowner acted in bad
faith, the owner of the materials may
remove them in any event, with a right to
be indemnified for damages. (360a)
INDUSTRIAL ENDEAVORS:
Building – act of erecting a structure or
construction of any kind with a roof and
intended for residential, office, social,
commercial or other purposes. A
warehouse is not a building.
Planting – act of setting into the soil or land
seeds or seedlings of trees such as
coconuts, mangoes, bananas, etc. It is
necessary that there have taken roots to be
considered property of the landowner.
Sowing – act of scattering over or spreading
of germinated seeds indiscriminately but
evenly through hand or mechanical device.
GR: The owner of the land is the owner of
whatever is built, planted or sown on that
land, including improvements and repairs
made thereon.
XPN: The builder, planter, sower or third
person subject to knowing if he is in good
faith or bad faith.
Under the FC, a building constructed on the
land of one of the spouses at the expense of
the conjugal partnership will belong to the
partnership or to the spouse who owns the
land depending on which of two properties
has a higher value. If the land is more
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 25
PROPERTY REVIEWER

valuable than the building, the building shall *The owner of a tree has a right to uproot
be owned by the owner of the land and his own tree even if it is beneficial to other
vice-versa subject to reimbursement at the tenement as shade.
time of the liquidation of the conjugal
partnership. GOOD FAITH (LO) – believes that the
materials which he used belonged to him. If
LAND OWNER (LO) is Owner of Materials he knew from the outset, that they do not
BUILDER, PLANTER (OM) belong to him, he is in bad faith.
OR SOWER (BPS) BAD FAITH (OM) – he knew of the fact that
GOOD FAITH GOOD FAITH his materials are being utilized in the
-Acquire and 1. Remove materials construction of a building and he
becomes the owner if w/o injury to work manifested no opposition thereto, he is bad
of the building etc or w/o plantings or faith. He cannot be heard to complain. He
after paying constructions being loses his materials and at the same time, he
indemnity for value destroyed (Art 447) loses his right to reimbursement or
(Art 447) damages. Additionally, he can even be
2. Receive indemnity made liable for consequential damages
for value of sustained by the owner of the land.
materials provided
he does not remove GOOD FAITH (OM) – has no knowledge of
materials the fact that his materials are being used by
BAD FAITH GOOD FAITH anyone
-Acquire after paying 1. Remove materials
value of materials in any event Art. 448. The owner of the land on which
and indemnity for anything has been built, sown or planted in
damages but subject 2. Be indemnified for good faith, shall have the right to
to the right of OM to damages appropriate as his own the works, sowing
remove (Art 447 as (reimbursement) or planting, after payment of the
per 454) (Art 447 as per 454) indemnity provided for in Articles 546 and
548, or to oblige the one who built or
planted to pay the price of the land, and
GOOD FAITH BAD FAITH the one who sowed, the proper rent.
-Acquire w/o paying -lose materials w/o However, the builder or planter cannot be
indemnity right to be obliged to buy the land if its value is
indemnified considerably more than that of the
BAD FAITH BAD FAITH building or trees. In such case, he shall pay
-Same as though -Same as though reasonable rent, if the owner of the land
both acted in good both acted in good does not choose to appropriate the
faith (in pari delicto) faith (in pari delicto) building or trees after proper indemnity.
The parties shall agree upon the terms of
Co-ownership not Co-ownership not the lease and in case of disagreement, the
contemplated contemplated court shall fix the terms thereof. (361a)

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 26
*LO has the choice to decide
*OL/BSP (GF)
-Appropriate, must pay, oblige to pay for
the land, sowed – rent
*Article not applicable to lessee since he
builds at his own risk being aware that he is
merely a lessee
Art. 449. He who builds, plants or sows in
bad faith on the land of another, loses
what is built, planted or sown without
right to indemnity. (362)
*BSP (BF) – loses the things without right to
indemnity
EXCEPTION: necessary expenses for
preservation
REMEDIES OF LANDOWNER ON BUILLDER
IN BF:
1. Appropriate what has been built
without any obligation to pay
indemnity therefore
2. Demand that the builder remove
what has been built
3. Compel the builder to pay the value
of the land
Art. 449. He who builds, plants or sows in
bad faith on the land of another, loses
what is built, planted or sown without
right to indemnity. (362)
Accession effect of LO/BPS in BF?
They become in GF. Apply 448.
Art. 450. The owner of the land on which
anything has been built, planted or sown in
bad faith may demand the demolition of
the work, or that the planting or sowing be
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PROPERTY REVIEWER
removed, in order to replace things in their
former condition at the expense of the
person who built, planted or sowed; or he
may compel the builder or planter to pay
the price of the land, and the sower the
proper rent. (363a)
Art. 451. In the cases of the two preceding
articles, the landowner is entitled to
damages from the builder, planter or
sower. (n)
*450-451 – Alternative rights
Art. 452. The builder, planter or sower in
bad faith is entitled to reimbursement for
the necessary expenses of preservation of
the land. (n)
Art. 453. If there was bad faith, not only on
the part of the person who built, planted
or sowed on the land of another, but also
on the part of the owner of such land, the
rights of one and the other shall be the
same as though both had acted in good
faith.
It is understood that there is bad faith on
the part of the landowner whenever the
act was done with his knowledge and
without opposition on his part. (354a)
*Both in BF: apply rule as if both are in good
faith
Art. 454. When the landowner acted in bad
faith and the builder, planter or sower
proceeded in good faith, the provisions of
article 447 shall apply. (n)
Art. 455. If the materials, plants or seeds
belong to a third person who has not acted
in bad faith, the owner of the land shall
answer subsidiarily for their value and only
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 27
in the event that the one who made use of
them has no property with which to pay.
This provision shall not apply if the owner
makes use of the right granted by article
450. If the owner of the materials, plants
or seeds has been paid by the builder,
planter or sower, the latter may demand
from the landowner the value of the
materials and labor. (365a)
Art. 456. In the cases regulated in the
preceding articles, good faith does not
necessarily exclude negligence, which gives
right to damages under article 2176. (n)
*Good faith is not an excuse for negligence
Art. 457. To the owners of lands adjoining
the banks of rivers belong the accretion
which they gradually receive from the
effects of the current of the waters. (336)
WHAT IS ALLUVIUM?
It is the soil imperceptibly and gradually
deposited on lands adjoining the banks of
rivers caused by the current of the water
WHAT IS ACCRETION?
It is the process whereby soil is deposited
REQUISITES:
1. Deposit should be gradual
2. Cause is the current of the river
3. River must continue to exist
4. Increase must be comparatively
little
5. Land where accretion took place is
adjacent to a bank of river
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PROPERTY REVIEWER
*If caused by fish traps – not artificial, with
deliberate desire
REASON WHY GIVEN TO RIPARIAN
OWNER:
1. Person is in the best position to
cultivate the land
2. To offset his loss for possible erosion
of his estate due to current of river
3. To compensate for his sufferings or
burdens arising from subjection of
his land to encumbrances or legal
easements
WHAT IF THE SOIL IS DEPOSITED FROM
THE SEA?
The State owns it
HEIRS OFEMILIANO NAVARRO V IAC and
SINFOROSO PASCUAL
Manila Bay
Bulacan River Talisay River
FACTS: Petitioner is the owner of the land in
question who is seeking for the approval of
the court in his application to register his
land. His land is situated in Balanga, Bataan.
On its north is Manila Bay, Bulacan river on
its west and talisay river on its east. He
claims that there was accretion when the
Bulacan river and Talisay river flow
downstream and met in Manila Bay thereby
depositing sands and soil on Pascual’s
property resulting now to a 14.6 hecatares
land.
ISSUE: W/N there was alluvium that shall
automatically be owned by the riparian
owner
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 28
HELD: The disputed land is an accretion not
on a river bank but on a sea bank, or on
what used to be the foreshore of Manila
Bay which adjoined private respondent’s
own tract on the northern side. It is part of
the public domain
*Litoral owner disputed land is intended for
public uses, and so long as the land in
litigation belongs to the national domain
and is reserved for public uses, it is not
capable of being appropriated by any
private person except through express
authorization granted in due form by a
competent authority
WHAT IF THE ACCRETION HAPPEND ON
THE LAGUNA DE BAY?
Since Laguna de Bay is a lake, the accretion
of which shall belong to the owner of the
land contiguous thereto.
*An unregistered alluvial property is
therefore subject to acquisition through
prescription by third persons
*457 is only applicable to banks of rivers
Art. 458. The owners of estates adjoining
ponds or lagoons do not acquire the land
left dry by the natural decrease of the
waters, or lose that inundated by them in
extraordinary floods. (367)
*Not applicable to lakes because it remains
to property of owners
*When the sea moves toward the estate
and the tide invades it, the invaded
property becomes foreshore land and
passes to the realm of the public domain
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Art. 459. Whenever the current of a river,
creek or torrent segregates from an estate
on its bank a known portion of land and
transfers it to another estate, the owner of
the land to which the segregated portion
belonged retains the ownership of it,
provided that he removes the same within
two years. (368a)
WHAT IS AVULSION?
It is the process whereby a portion of a land
is segregated from an estate by the forceful
current of a river, creek or torrent and
transferred to another estate.
ELEMENTS OF AVULSION:
1. The process is sudden and abrupt
causing segregation of a portion of
land from one estate and
transferring it to another estate
2. The property detached is known and
identifiable
3. The ownership of the property is
retained by the owner within 2 years
from detachment
4. The ownership of the detached
property is not automatically vested
in the owner of the tenement to
which it was attached
WHAT IS A RIVER?
It is a natural stream of water, of greater
volume that a creek or rivulet flowing, in a
more or less permanent bed or channel,
between defined banks or walls, with a
current which may either be continuous in
one direction or affected by the ebb and
flow of tide.
ELEMENTS:
1. Water
2. Bed
3. Banks
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WHAT IS A CREEK?
It is a recess or arm extending form a river,
which participates in the ebb and flow of
the sea. A creek is a small stream, less than
a river, and is not a separate independent
stream. Property of public dominion.
WHAT IS A TORRENT?
It is a stream of flowing water with great
rapidity and violence.
EFFECTS OF AVULSION:
The owner of the land which had been
segregated retains his ownership over the
land provided he removes the same from
where it is annexed within 2 years from the
time it was segregated from its source and
annexed to another tenement.
WHAT IF THE 2 YEAR PERIOD HAD
ALREADY LAPSED?
The law is silent as to the status of the
property. However, it is submitted thatin
case of failure of the owner to remove the
property within the period provided, the
owner of the tenement to which it had
been appended is entitled to it by principle
of accretion. If the new owner does not like
it, it shall be owned by the State.
Art. 460. Trees uprooted and carried away
by the current of the waters belong to the
owner of the land upon which they may be
cast, if the owners do not claim them
within six months. If such owners claim
them, they shall pay the expenses incurred
in gathering them or putting them in a safe
place. (369a)
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6 months claim, 4 years prescriptive period
of recovery
*If there is doubt if it is alluvium or
avulsion, presume alluvium.
Art. 461. River beds which are abandoned
through the natural change in the course
of the waters ipso facto belong to the
owners whose lands are occupied by the
new course in proportion to the area lost.
However, the owners of the lands
adjoining the old bed shall have the right
to acquire the same by paying the value
thereof, which value shall not exceed the
value of the area occupied by the new bed.
(370a)
ABANDONED RIVERBED?
Automatically the riparian owner acquires it
WHAT IF INUNDATED? OUT OF THE 700
SQM, ONLY 200 SQM ATTACHED TO YOUR
PROPERTY?
You are the owner in so far as 200 sqm is
concerned.
*If due to forces of nature, a river changed
its natural course, creating a new river bed
and leaving the old bed dry, the owner of
the invaded land becomes the owner of the
old bed in proportion to the area he lost.
However, the government has the right and
power to revert back to the course of a new
river to its original location.
*The Article will not apply if the river has
branched out and created new courses
without however abandoning the original
river bed. In which case, the owners of the
lands now occupied by the additional
courses of the river would not become the
owners of the bed since it was not
abandoned.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 30
*Government cannot be restrained from
reverting the river to its former cause but
cannot be compelled to restore it.
WHAT IF THE RIVER DRIED UP?
It shall be owned by the State.
CAN THE OWNER REVERT THE RIVER TO ITS
ORIGINAL COURSE?
Yes, provided a permit to that purpose was
secured from the Secretary of Public Works.
Art. 462. Whenever a river, changing its
course by natural causes, opens a new bed
through a private estate, this bed shall
become of public dominion. (372a)
*New river beds become property of public
dominion
EFFECT OF ABANDONMENT OF THE
SUBSEQUENT OR NEW RIVER BED:
The new river bed may itself be abandoned,
due to natural causes or artificial causes
authorized by law. In such eventuality, said
owners will get back this previous property
if the course of the river reverts to its
original place.
Art. 463. Whenever the current of a river
divides itself into branches, leaving a piece
of land or part thereof isolated, the owner
of the land retains his ownership. He also
retains it if a portion of land is separated
from the estate by the current. (374)
Art. 464. Islands which may be formed on
the seas within the jurisdiction of the
Philippines, on lakes, and on navigable or
floatable rivers belong to the State. (371a)
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*Formation of Islands on Seas, Lakes and
Navigable Rivers – State
Art. 465. Islands which through successive
accumulation of alluvial deposits are
formed in non-navigable and non-floatable
rivers, belong to the owners of the margins
or banks nearest to each of them, or to the
owners of both margins if the island is in
the middle of the river, in which case it
shall be divided longitudinally in halves. If
a single island thus formed be more distant
from one margin than from the other, the
owner of the nearer margin shall be the
sole owner thereof. (373a)
*The islands shall pertain and belong to the
owners of the margins or banks of the river
nearest each of them. If the island happens
to be striding n the middle of the river, it
shall be divided longitudinally in halves –
thus both owner of the opposite banks of
the river will have a share on the island
formed.
SECTION 3. - Right of Accession with
Respect to Movable Property
Art. 466. Whenever two movable things
belonging to different owners are, without
bad faith, united in such a way that they
form a single object, the owner of the
principal thing acquires the accessory,
indemnifying the former owner thereof for
its value. (375)
*Accessory follows the principal
WHAT IS ADJUNCTION OR CONJUNCTION?
It is a process whereby two movable things
owned by different persons are joined
together without bad faith, in such a way
that they form a single object.
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CHARACTERSITICS: U-S-T
U- United forming a single object
S- Inseparable that their separation would
impair their nature or result in substantial
injury to either thing
T- Atleast two movable belonging to
different owners
OWNER OF THE RESULTING OBJECT:
It shall belong to the owner of the principal
thing, but with the obligation to indemnify
the owner of the accessory for the value of
the latter’s thing.
*Good faith is necessary in adjunction. It is
the condition of the mind where the person
concerned is not aware that there exists in
his title or mode of acquisition any flaw
which invalidates it
If the one has acted in bad faith is the
owner of the principal thing, the owner of
the accessory thing shall have a right to
choose between the former paying him the
value or that the thing belonging to him be
separated, even though for this purpose it
be necessary to destroy the principal thing;
and in both cases, furthermore, there shall
be indemnity for damages.
CLASSES OF ADJUNCTION OR
CONJUNCTION:
1. Escritura (writing) – writing a poem
on papers belonging to another. The
papers will pertain to the writer
2. Inclusion – such as setting a precious
stone on a golden ring. The stone
will pertain to the owner of the ring.
3. Pintura (painting) – such as painting
a scenic view on a canvas belonging
to another. The canvas will pertain
to the painter
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4. Soldering – such as joining a piece of
metal to another metal of same kind
belonging to a different owner. This
is feruminatio, the objects being of
being of the same metal. If
plumbatura, metals of the same
kind. The object will belong to the
owner of the principal
5. Weaving – such as making a baby
dress using threads belonging to
another. The dress will pertain to
the weaver who owns the cloth.
TEST TO DETERMINE THE PRINCIPAL
(ART 467-468)
1. That to which the other has been
united as an ornament or for its use
or perfection
*If it cannot be determined from Art
467:
2. That of greater value
*If two things are of equal value:
3. That of greater volume
*When value and volume cannot be
applied
4. That which has greater merits, utility
and volume of things
Art. 467. The principal thing, as between
two things incorporated, is deemed to be
that to which the other has been united as
an ornament, or for its use or perfection.
(376)
PRIMARY FACTORS TO DETERMINE THE
PRINCPAL AND THE ACCESSORY:
1. The thing which is incorporated to
another as an ornament is the
accessory. The other is the principal.
2. The thing which is added to or
joined is the accessory. The other is
the principal.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 32
Art. 468. If it cannot be determined by the
rule given in the preceding article which of
the two things incorporated is the principal
one, the thing of the greater value shall be
so considered, and as between two things
of equal value, that of the greater volume.
In painting and sculpture, writings, printed
matter, engraving and lithographs, the
board, metal, stone, canvas, paper or
parchment shall be deemed the accessory
thing. (377)
SECONDARY FACTORS TO DETERMINE
PRINCIPAL AND ACCESSORY:
1. The one which has the greater value
is the principal
2. If they are of equal value, then the
one with greater volume shall be
considered the principal
SPECIAL CRITERIA IN PmPWELS-Pm:
PM – Printed Matter
P – Painting
W – Writing
E – Engraving
L – Litography
S - Sculpture
Art. 469. Whenever the things united can
be separated without injury, their
respective owners may demand their
separation.
Nevertheless, in case the thing united for
the use, embellishment or perfection of
the other, is much more precious than the
principal thing, the owner of the former
may demand its separation, even though
the thing to which it has been incorporated
may suffer some injury. (378)
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
*Injury – not destruction
*Expenses for the separation must of
course be borne by the person who caused
the union considering that both parties
Art. 470. Whenever the owner of the
accessory thing has made the
incorporation in bad faith, he shall lose the
thing incorporated and shall have the
obligation to indemnify the owner of the
principal thing for the damages he may
have suffered.
If the one who has acted in bad faith is the
owner of the principal thing, the owner of
the accessory thing shall have a right to
choose between the former paying him its
value or that the thing belonging to him be
separated, even though for this purpose it
be necessary to destroy the principal thing;
and in both cases, furthermore, there shall
be indemnity for damages.
If either one of the owners has made the
incorporation with the knowledge and
without the objection of the other, their
respective rights shall be determined as
though both acted in good faith. (379a)
OWNER OF ACCESSORY ACTING IN BAD
FAITH; CONSEQUENCES:
When the owner of the accessory who
caused the incorporation acted in bad faith,
he shall indemnify the owner of the
principal things for the damages which the
latter has suffered. This is the usual rule
when a person acted in bad faith.
ABSENCE OF OBJECTION TO THE
INCORPORATION – the owner of the
principal or accessory made the union or
incorporation of the things with the
knowledge of the other and raising no
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objection thereto, both them recoverable
from each other. The rule when both
parties are in good faith shall apply.
Art. 471. Whenever the owner of the
material employed without his consent has
a right to an indemnity, he may demand
that this consist in the delivery of a thing
equal in kind and value, and in all other
respects, to that employed, or else in the
price thereof, according to expert
appraisal. (380)
WAYS OF PAYING INDEMNITY:
1. Delivery of a thing similar in kind
and value and in all other respects,
or that thing used or incorporated
by the other party
2. Payments of the price as appraised
by experts in case the parties cannot
stipulate on the price. Sentimental
value shall also be considered.
Art. 472. If by the will of their owners two
things of the same or different kinds are
mixed, or if the mixture occurs by chance,
and in the latter case the things are not
separable without injury, each owner shall
acquire a right proportional to the part
belonging to him, bearing in mind the
value of the things mixed or confused.
(381)
CLASSES OF MIXTURE:
1. Confusio – this results when liquids
belonging to different owners got
mixed by agreement or by chance
2. Commixtio – this results when solid
matters are mixed by agreement or
by chance
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PROPERTY REVIEWER
PROPORTIONATE OWNERSHIP IN
COMMIXTIO OR CONFUSIO - The things
may be of the same things or of different
things. When the mixture is by agreement,
the parties may stipulate on the terms and
conditions and shall be governed by the law
on obligations and contracts
Art. 473. If by the will of only one owner,
but in good faith, two things of the same
or different kinds are mixed or confused,
the rights of the owners shall be
determined by the provisions of the
preceding article.
If the one who caused the mixture or
confusion acted in bad faith, he shall lose
the thing belonging to him thus mixed or
confused, besides being obliged to pay
indemnity for the damages caused to the
owner of the other thing with which his
own was mixed. (382)
*One owner acting in good faith, co-
ownership results – If two things whether
of the same or different kinds are mixed or
confused, by the act of the owner of one
thing in good faith, the rights of the owner
shall be in proportion to the value of the
things they own. In effect, there is co-
ownership
SANCTIONS AGAINST AN OWNER ACTING
IN BAD FAITH:
1. Lose the thing belonging to him.
Both in bad faith, as if both are in
good faith.
2. He shall be liable for damages to the
owner of the other thing mixed or
confused.
Art. 474. One who in good faith employs
the material of another in whole or in part
in order to make a thing of a different kind,
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shall appropriate the thing thus
transformed as his own, indemnifying the
owner of the material for its value.
If the material is more precious than the
transformed thing or is of more value, its
owner may, at his option, appropriate the
new thing to himself, after first paying
indemnity for the value of the work, or
demand indemnity for the material.
If in the making of the thing bad faith
intervened, the owner of the material shall
have the right to appropriate the work to
himself without paying anything to the
maker, or to demand of the latter that he
indemnify him for the value of the material
and the damages he may have suffered.
However, the owner of the material
cannot appropriate the work in case the
value of the latter, for artistic or scientific
reasons, is considerably more than that of
the material. (383a)
WHAT IS SPECIFICATIO?
It is the giving of a new form to a material
belonging to another person through
application of labor or industry. The
material used is transformed to another
thnigs or is changed in identity.
Example: Mango fruits becomes mango
juice.
Principal: Labor
Accessory: Object
WHAT IF MAKER IS IN BF?
Owner of material can appropriate it to self
without being indemnified because in bad
faith
HOW WOULD YOU DISTINGUISH:
1. Adjunction – atleast 2 objects
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PROPERTY REVIEWER
2. Mixture – atleast 2 objects
3. Specificatio – only 1 because it can
be transformed
WHAT IF THERE ARE 2 OR 3 OBJECTS?
Only one is considered a principal.
*In adjunction, accessory follows the
principal? Yes.
*In mixture, accessory follows the
principal? No. Proportional, agreement of
the parties. In mixture, there is no
accessory and principal.
*Rice mixed by accident, 5 sacks dinorado
rice Juan, 10 sacks jasmine rice Maria. What
would govern the relations? Co-ownership.
Maria owns 10 sacks, 5 sacks Juan.
PROPORTIONAL OWNERSHIP.
*In adjunction, do the objects return their
nature when they are joined? Yes.
*In specificatio? Yes, still the same nature
even if transformed. You just give it a new
form.
Art. 475. In the preceding articles,
sentimental value shall be duly
appreciated. (n)
*In indemnifying the value, aside from the
actual value, consider SENTIMENTAL VALUE
CHAPTER 3
QUIETING OF TITLE (n)
Art. 476. Whenever there is a cloud on title
to real property or any interest therein, by
reason of any instrument, record, claim,
encumbrance or proceeding which is
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apparently valid or effective but is in truth
and in fact invalid, ineffective, voidable, or
unenforceable, and may be prejudicial to
said title, an action may be brought to
remove such cloud or to quiet the title.
An action may also be brought to prevent a
cloud from being cast upon title to real
property or any interest therein.
QUIETING OF TITLE – proceeding in equity,
the purpose of which is the declaration of
the invalidity of a claim on a title or the
invalidity of an interest in property adverse
to that of the plaintiff and thereafter to free
plaintiff and all those claiming under him
from any hostile claim.
QUASI IN REM – suits against a particular
person or persons in respect to res and
judgment will apply only to the property in
dispute. Conclusive only between parties
involved.
VESSEL? Can be considered an object of
quieting of title since its value is
considerably high although it is a personal
property
*Only real property could be the subject
matter of quieting of title
REQUISITES OF QUIETING OF TITLE:
1. Plaintiff must demonstrate a legal or
equitable title to, or an interest in
the subject real property
2. Deed, claim or encumbrance that
purportedly casts a cloud on their
title in fact invalid and operative
despite prima facie appearance of
validity or legal efficacy.
3. Unless defendant is restrained or
stopped, the title or interest of the
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PROPERTY REVIEWER
plaintiff will be prejudiced or
adversely affected
JUSTIFICATIONS FOR QUIETING OF
TITLE:
1. To prevent future or further
litigation on the ownership of the
property
2. To protect the true title and
possession
3. To protect real interest of both
parties
4. To determine and make known the
precise state of the title for the
guidance of all
*Quieting of title, WHAT IF WITH
FORGERY? You can file an action to quiet
title because the deed of sale seemed valid
based on presumption of validity. You can
file an action to quiet title.
*James who is an agent of Anthony sold the
latter’s house. The deed of sale is executed
in a public instrument and there is no
indication that the authority of the agent is
not in writing. The deed of sale appears to
be valid and effective on its face.
As the authority of James to sell was
not in writing, the sale is void. Under this
article, Anthony can file a suit against the
buyer to quiet his title.
WHAT IF IT IS WRITTEN THAT “WRITTEN
AUTHORITY WILL FOLLOW?”
No need to file actionsince it is already
obvious that there is an irregularity
Art. 477. The plaintiff must have legal or
equitable title to, or interest in the real
property which is the subject matter of the
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action. He need not be in possession of
said property.
Art. 478. There may also be an action to
quiet title or remove a cloud therefrom
when the contract, instrument or other
obligation has been extinguished or has
terminated, or has been barred by
extinctive prescription.
Art. 479. The plaintiff must return to the
defendant all benefits he may have
received from the latter, or reimburse him
for expenses that may have redounded to
the plaintiff's benefit.
Art. 480. The principles of the general law
on the quieting of title are hereby adopted
insofar as they are not in conflict with this
Code.
Art. 481. The procedure for the
quieting of title or the removal of a
cloud therefrom shall be governed by
such rules of court as the Supreme
Court shall promulgated.
CLOUD – semblance of a title, either legal or
equitable, or a cloud of an interest in land
appearing in some legal form but which is,
in fact, unfounded, or which it would be
inequitable to enforce.
MINOR SELLING?
No because its already obvious that there is
an irregularity.
TEST TO APPLY TO DETERMINE WHETHER
A CLOUD EXISTS OR NOT
The face of the instrument or contract must
be considered closely. If from the four
corners thereof, it appears that that it is
invalid and ineffective contract there is no
cloud existing on the title. But if there is a
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PROPERTY REVIEWER
need to present evidence to establish
invalidity, then a cloud on the title exists
QUIETING OF TITLE IS NOT EQUAL TO
RECOVERY OF POSSESSION.
MAY AN ACTION TO QUIET TITLE BE FILED
BY A PERSON NOT A POSSESSOR?
Yes, what is important is that the plaintiff
should have interest in the property.
RULES ON PRESCRIPTION OF AN ACTION
TO QUIET TITLE:
1. Plaintiff possessor – does NOT
prescribe
2. Plaintiff NOT possessor – ordinary
10 years, extraordinary 30 years
WHAT IS THE OBLIGATION OF THE
PLAINTIFF WHEN HE WINS THE CASE:
1. Indemnify necessary expenses
2. Return benefits received
GENERAL PRINCIPLES OF LAW:
1. Prescription
2. Equity
3. Avoid multiplicity of suits
4. Res judicata
CHAPTER 4
RUINOUS BUILDINGS AND TREES IN
DANGER OF FALLING
Art. 482. If a building, wall, column, or any
other construction is in danger of falling,
the owner shall be obliged to demolish it
or to execute the necessary work in order
to prevent it from falling.
If the proprietor does not comply with this
obligation, the administrative authorities
may order the demolition of the structure
at the expense of the owner, or take
measures to insure public safety. (389a)
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NECESSARY WORKS MUST INTROUDUCE
THE NECESSARY WORKS OR REPAIRS TO
PREVENT IT FROM FALLING.
*If the collapse of the building is the result
of any defect in the construction mentioned
the person who suffered damages on the
occasion thereof, may proceed only against
the engineer or architect or contractor in
accordance with reglementary period 1292.
ADMINISTRATIVE REMEDY – Building
official or City Engineer in cities may order
the demolition of the structure at the
expense of the owner, or take measures to
insure public safety.
LACK OF KNOWLEDGE IS NOT AN EXCUSE
TO OWNER’S LIABILITY
*If the owner refuses to demolish
dangerous construction, and it is urgent, no
need of court order, local authorities can
demolish it and the expenses shall be borne
by the owner.
A BUILDING COLLAPSED, REASON IS
PLANNING OF CONSTRUCTION?
1723
*If it cannot be determined what is the
reason of the collapse, ALL IS SOLIDARILY
LIABLE.
AFTER 5 YEARS, YOU SAW YOUR HOUSE
LEAKING. CAN YOU GO AGAINST
CONTRACTOR?
1723
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PROPERTY REVIEWER
This is counted from the time the
construction was finished.
Art. 483. Whenever a large tree threatens
to fall in such a way as to cause damage to
the land or tenement of another or to
travelers over a public or private road, the
owner of the tree shall be obliged to fell
and remove it; and should he not do so, it
shall be done at his expense by order of
the administrative authorities. (390a)
*Refers to large trees, owner is obliged to
cut or fell the tree and remove cuttings.
Should he not do so, it shall be cut by the
administrative authorities of the place.
Quasi-delict.
VACANT LOT, PLANTED VEGETABLES TO
YOUR PARCEL OF LAND, YOU SAW IT AND
IMMEDIATELY YOU DESTROYED IT. IS
YOUR ACTION PROPER?
No. During the Marcos time, there was a
LAW ON GREEN REVOLUTION. Planting
vegetables on vacant lots are possible
hence, your action was not proper. Your
remedy would be to talk to the planter and
settle the differences amicably.
Title III. - CO-OWNERSHIP
Art. 484. There is co-ownership whenever
the ownership of an undivided thing or
right belongs to different persons.
In default of contracts, or of special
provisions, co-ownership shall be governed
by the provisions of this Title. (392)
CO-OWNERSHIP – ownership of two or
more persons over a thing or right which
had not been physically divided between, or
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PROPERTY REVIEWER

by and among them. The moment there is a 4. Testamentary disposition or

physical division, co-ownership ceases.
*To be considered a co-owner, one must
have a spiritual part of a thing which is not
physically divided, or each of them is an
owner of the whole, and over the whole he
exercises the right of dominion, but he is at
the same time the owner of the portion
which is truly abstract.
REQUISITES:
1. Plurality of subjects, atleast two
persons
2. Unity of object, not yet divided
3. Recognition of ideal shares of co-
owners
*Co-ownership has the nature of a trust. A
co-owner cannot acquire the property by
prescription unless there is repudiation of
co-ownership.
donation inter vivos
Ex. Testator or donor prohibits
partition of the property for a
certain period of time
5. Succession – in the case of heir of
undivided property before partition
6. Chance or fortuitous event –
discovery of a hidden treasure
*Co-ownership is not limited to corporeal
things, it can also happen in transmissible
rights. Thus it was held that when the
lessee died, his leasehold rights descended
upon his children who now own the rights
in co-ownership
*see table page 212
*Co-ownership is not a juridical person,
hence cannot be sued

MAY CO-OWNERSHIP BE GIVEN CAN I ACQUIRE PROPERTY BY

IMPLIEDLY?
Yes, when no objection alteration was
made. EFFECT? Estoppel, barred from
objecting after
RULES TO GOVERN CO-OWNERSHIP: (IN
ORDER)
1. Contracts
2. Special provisions
3. Title III of the Code
SOURCESOF CO-OWNERSHIP:
1. Contract – voluntary agreement of
parties
2. Law
Ex. Easement of party walls or
absolute community of property
3. Occupancy – two persons catch a
wild animal or fish in the ocean or
gather forest products
PRESCRIPTION?
GEN: No.
XPN: If there is repudiation.
EXTINGUISHMENT OF CO-OWNERSHIP:
(CALSTEP)
1. Consolidation or merger in one co-
owner
2. Acquisitive prescription in favour of
a third person or a co-owner who
repudiates
3. Loss or destruction of property co-
owned
4. Sale of property co-owned
5. Termination of period agfreed upon
by co-owners
6. Expropriation
7. Judicial or extrajudicial partition

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 39
Art. 485. The share of the co-owners, in
the benefits as well as in the charges, shall
be proportional to their respective
interests. Any stipulation in a contract to
the contrary shall be void.
The portions belonging to the co-owners in
the co-ownership shall be presumed equal,
unless the contrary is proved. (393a)
RIGHTS OF EACH CO-OWNER AS TO THE
THING OWNED IN COMMON:
1. To share in the benefits in proportion to
his interest, provide the charges are
borne in the same proportion
a. Contrary stipulation is void.
Reason: contrary to the essence
of co-ownership
b. Presumption is that portions are
equal unless contrary is provided
2. To use the entire thing according to the
purpose intended(may be altered but by
agreement, express or implied)
a. It should be without injury or
prejudice to the interest of the co-
ownership
b. Without preventing the use of other
co-owners
3. Each co-owner may bring an action for
ejectment
4. To compel other co-owners to
contribute to expenses for preservation of
the thing or right in common and as to
taxes
*Acts of preservation – notify if
possible
5. To oppose any act of alteration
6. To protect against act of majority which
are prejudicial to the minority
PRESUMPTION ON THE EXTENT OF A CO-
OWNERSHIP: EQUALITY
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PROPERTY REVIEWER
Equal unless contrary provided
*If they have different shares then their
participation in the benefits and charges shall
be proportional to their respective interest
Example:
A, B and C purchased a building for 30M. A
contributed 20M, B and C, 5M. The building
earns a yearly net income of 3M.
A is entitled to 2M and B and C,
P500,000.00.
If there is charges to pay, the same sharing
will be followed such as payment of taxes.
EFFECT OF ACCRETION ON THE PROPERTY
UNDER A CO-OWNERSHIP:
If the property is increased, through
accretion has increased in value or area, the
co-owners will share proportionately
GR: If there is no contribution, no benefits
XPN: Article 417, common law partners. A
partner who did not actually contribute in
the acquisition of a property shall be
deemed to have contributed jointly and
shall receive a 50/50 share thereof, if he or
she took charge of the care and
maintenance of the family and the
household.
*No co-ownership when a house belong to
a person and the lot to another because the
property has already been determined
Art. 486. Each co-owner may use the thing
owned in common, provided he does so in
accordance with the purpose for which it is
intended and in such a way as not to injure
the interest of the co-ownership or
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prevent the other co-owners from using it
according to their rights. The purpose of
the co-ownership may be changed by
agreement, express or implied. (394a)
DOES THE OWNER HAVE THE RIGHT TO
USE THE ENTIRE PROPERTY?
Yes.
WHAT ARE THE LIMITATIONS TO THIS
RIGHT?
The thing owned in common should be
used only:
a. According to the purpose of which it
is intended
b. It is without injury or prejudice to
the interest of the co-ownership
c. Without preventing the use of other
co-owners
DETERMINATION OF THE PURPOSE OF THE
PROPERTY:
1. The purpose stipulated in the
agreement
2. In default thereof, the purpose for it
was ordinarily adapted to its nature
will be considered
3. In default of the above, the use for
which it was devoted to will be
considered as the purpose
*By agreement, the co-owners may change
the purpose of the co-ownership
Art. 487. Any one of the co-owners may
bring an action in ejectment. (n)
EJECTMENT CASE FILED BY A CO-OWNER IS
A REPRESENTATIVE SUIT – An ejectment
case filed by a co-owner need not be joined
by the other co-owners. It is a
representative suit as the other co-owners
are deemed included as plaintiffs. Meaning,
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PROPERTY REVIEWER
any co-owner may file an action against
another person.
*When a co-owner brings an action, it is
deemed instituted for the benefit of all, but
if the case does not prosper, the other co-
owners are not bound by the judgment
unless they were served with summons,
even as unwilling plaintiffs
*A co-owner cannot acquire a property
through prescription, there should be
repudiation
NEGLIGENT CO-OWNER BRINGS ACTION
AGAINST ANOTHER PERSON FOR CO-
OWNED PROPERTY. EFFECT?
The decision is binding but the expenses
shall be borne only by the negligent co-
owner.
REQUISITES OF PRESCRIPTION IN FAVOR
OF A CO-OWNER:
1. The owner has performed
unequivocal acts of repudiation
amounting to an ouster of the other
co-owners
2. Such positive acts of repudiation
have been made known to the other
co-owners
3. Evidence must be clear and
convincing
ACTION FOR EJECTMENT:
1. Unlawful detainer
2. Forcible entry
3. Accion publiciana
4. Accion reividicatoria
5. Quieting of title
6. Replevin
Art. 488. Each co-owner shall have a right
to compel the other co-owners to
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contribute to the expenses of preservation
of the thing or right owned in common and
to the taxes. Any one of the latter may
exempt himself from this obligation by
renouncing so much of his undivided
interest as may be equivalent to his share
of the expenses and taxes. No such waiver
shall be made if it is prejudicial to the co-
ownership. (395a)
EXPENSES FOR PRESERVATION – those of
not done, would imperil the existence of
the property or greatly diminish its value or
productivity
*Expenses for luxury or pleasure are not
covered by this Article. Useful expenses,
even if they increase the value of the
property, are not covered. Consequently,
without the consent of all co-owners, useful
and luxury expenses cannot be incurred. If
they are incurred without the consent of
the other co-owners, the latter cannot be
charged therefor.
*Already paid
REMEDY OF A CO—OWNER WHO DOES
NOT WANT TOCONTRIBUTE:
GR: He may exempt himself by renouncing
“so much of his undivided interest as may
be the equivalent to his share of the
expenses for preservation and taxes.”
XPN: if the renunciation will be prejudicial
to the co-ownership. The higher
consideration therefore
RENUNCIATION, WHEN EFFECTED IS
TANTAMOUNT TO DACION EN PAGO –
When renunciation is validly done, it is
tantamount to dacion en pago because the
debtor co owner is paying his monetary
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PROPERTY REVIEWER
obligation by giving something else – his
interest in the co-ownership equivalent in
value of his share in the expenses and taxes
WHO HAS AUTHORITY TO DECIDE ON
NECESSARY EXPENSES?
One co-owner provided it is for the benefit
of the co-owned property. Compel
contribution.
Art. 489. Repairs for preservation may be
made at the will of one of the co-owners,
but he must, if practicable, first notify his
co-owners of the necessity for such
repairs. Expenses to improve or embellish
the thing shall be decided upon by a
majority as determined in Article 492. (n)
*Expenses to improve or embellish the
thing shall be decided by the majority co-
owner representing the controlling interest
in the object of the co-ownership
IMPROVE – to add something new and
good to the thing which enhances its value
*In so far as expenses for improvement or
embellishment are concerned, a co-owner
cannot embark on them without securing
the consent of the majority of the co-
owners. Majority is not based on the
number of the co-owners but on the
controlling interest in the object of the co-
ownership
*The first sentence of the Article refers to
necessary repairs to preserve the property.
At the will of even one co-owner, necessary
expenses for preservation may be made by
advancing the expenses therefore and he
may later collect from his co-owners the
latter’s respective shares in the expenses.
To avoid inconvenience arising from lack of
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warning and as a matter of courtesy, the co-
owner
NO NOTIFICATION ON NECESSARY
REPAIRS. EFFECT?
Still can compel other co-owners to pay
PROVIDED, the co-owner who initiated the
repairs and paid for it prove the others that
there was indeed a need to repair and that
there is reasonableness on the expenses.
PRACTICAL – lesser expenses
PRACTICABLE – with possibility
WHAT IF ON THE NEED FOR NECESSARY
REPAIRS, THERE WAS AN OPPOSITION,
WHATS IS THE CONSEQUENCE?
If by reason of the opposition, the property
was damage, the oppose shall borne the
expenses.
NECESSARY EXPENSES – CONSENT – One
co-owner sufficient
EMBELISHMENT – EXPENSES – Financial
Majority needed to pursue it
Art. 490. Whenever the different stories of
a house belong to different owners, if the
titles of ownership do not specify the
terms under which they should contribute
to the necessary expenses and there exists
no agreement on the subject, the following
rules shall be observed:
(1) The main and party walls, the
roof and the other things used in
common, shall be preserved at the
expense of all the owners in
proportion to the value of the story
belonging to each;
(2) Each owner shall bear the cost
of maintaining the floor of his story;
the floor of the entrance, front
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PROPERTY REVIEWER
door, common yard and sanitary
works common to all, shall be
maintained at the expense of all
the owners pro rata;
(3) The stairs from the entrance to
the first story shall be maintained
at the expense of all the owners pro
rata, with the exception of the
owner of the ground floor; the
stairs from the first to the second
story shall be preserved at the
expense of all, except the owner of
the ground floor and the owner of
the first story; and so on
successively. (396)
*This article is applicable only if there is NO
AGREEMENT
*Condominium is a form of co-ownership.
CAN FOREIGNERS ACQUIRE CONDO UNITS?
GR: No because that will include acquisition
of land which our law does not allow.
XPN: If the common areas are held by
CONDO CORPORATION, foreigner can
acquire because the corpo has a right.
*If common areas are not held by a condo
corporation, you have TITLE to the land. In
that case, the foreigner cannot acquire
condo unit.
*In a condo corporation, unit holders are
only shareholders. It must still comply to
the 60, 40 Filipino policy.
Art. 491. None of the co-owners shall,
without the consent of the others, make
alterations in the thing owned in common,
even though benefits for all would result
therefrom. However, if the withholding of
the consent by one or more of the co-
owners is clearly prejudicial to the
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 43
common interest, the courts may afford
adequate relief. (397a)
WHAT IS ALTERATION?
A change which more or less permanently
changes the use of a thing and adversely
affecting the condition of the thing or its
enjoyment by the others
WHO SHALL DECIDE ON EMBELLISHMENT?
There is a need for UNANIMOUS CONSENT.
CAN AN IMPLIES CONSENT FROM A CO-
OWNER BE TANTAMOUNT TO A NEED TO
PAY FOR ITS EMBELLISHMENT EXPENSES?
No. Only express consent shall be the factor
for the need to pay expenses on
embellishment.
WHEN IS IT ILLEGAL?
No unanimous consent
*Everyone will benefit in profit even if not
all consented
Art. 492. For the administration and better
enjoyment of the thing owned in common,
the resolutions of the majority of the co-
owners shall be binding.
There shall be no majority unless the
resolution is approved by the co-owners
who represent the controlling interest in
the object of the co-ownership.
Should there be no majority, or should the
resolution of the majority be seriously
prejudicial to those interested in the
property owned in common, the court, at
the instance of an interested party, shall
order such measures as it may deem
proper, including the appointment of an
administrator.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
Whenever a part of the thing belongs
exclusively to one of the co-owners, and
the remainder is owned in common, the
preceding provision shall apply only to the
part owned in common. (398)
ACTS OF ADMINISTRATION – acts of
management that do not involve alteration
of the property; those which are temporary
in character so smuch that they do not bind
the property for a long time, although they
may be renewed; and those which do not
create real rights over the common
property
EXAMPLES OF ACTS OF ADMINISTRATION:
1. Leasing a parcel of land not more
than a year and not registered
2. Borrowing money for urgent repairs
3. Paying workers and employees for
salaries
4. Paying taxes
5. Filing representative suit
Acts of administration = Acts of
Management
*May be delegated to one of the co-owners
or a third person provided it is the
controlling interest, majority.
WHAT IF MAJORITY CANNOT BE REACHED?
You can ask the court for permission.
LEASE?
More than 1 year – act of alteration
More than 6 months with registration – Act
of alteration
*Mortgage is an act of ownership
*Obtaining a loan without real estate
mortgage is an act of administration
ARE WE OBLIGED TO INFORM THE
MINORITY OF THE CHANGES?
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PROPERTY REVIEWER

Yes. They have the right to be heard. They SUMMARY:

can also assert their right to CO-OWNERSHIP
maladministration even if the ones who are
doing it are the controlling interests. 1. ALTERATIONS 2. ADMINISTRATION

GROUNDS TO QUESTION MAJORITY:

1. Acts of maladministration
2. Fraud
3. Prejudicial to interest CONSENT OF “ALL”

WHAT KIND OF INJUTRY WOULD JUSTIFY GR: FINANCIAL

COURT INTERVENTION? MAJORITY’S
Those that are serious and affects the entire CONSENT
ownership XPN: MINORITY HAS
REMEDY IF
SELLING OR DISPOSING PROPERTY? (YOUR PREJUDICIAL
PART)
Yes but you can only specify measurement PRESERVATION IMPROVEMENTS
and not the specific location since there
was no partition yet.

ONE CO-OWNER FINANCIAL MAJORITY

SUFFICIENT

MAY A CO-OWNER SELL HIS SHARES?

Yes.

DO A CO-OWNER NEED TO ASK

PERMISSION TO OTHER CO-OWNERS?
SPECIFIC PORTION?
No. Ideal share only.

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 45
Art. 493. Each co-owner shall have the full
ownership of his part and of the fruits and
benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it,
and even substitute another person in its
enjoyment, except when personal rights
are involved. But the effect of the
alienation or the mortgage, with respect to
the co-owners, shall be limited to the
portion which may be alloted to him in the
division upon the termination of the co-
ownership. (399)
*Substitution of a co-owner by another is
violative of the right to privacy
*A co-owner does not lose his part
ownership of a co-owned property where
his share is mortgaged by another co-owner
without his knowledge and consent
MAY THE UNDIVIDED SHARE OF A CO-
OWNER IN A COMMON PROPERTY BE
ATTACHED?
Yes. The share can b e attached even if such
share had not been concretely determined.
*Co-owner has no right to alienate a
concrete or determinate part of the thing
owned in common
*The fact that a concrete portion of the
community property does not render the
sale void because a contract must be
regarded as valid as far as it is legally
possible to do so. Such a sale is subject to
the result of the partition. Hence, the sale is
valid to the extent of the ownership of the
co-owner. Example, ¼ of A, it is valid in so
far as the ¼ of the property only.
REQUISITES OF LEGAL REDEMPTION:
1. There must be co-ownership
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PROPERTY REVIEWER
2. One of the co-owners sold his right
to a stranger
3. The sale was made before the
partition
4. Right of redemption must be
exercised by one or more co-owners
within 30 days from the time of
notification in writing by vendee or
co-owner vendor
5. Vendee must be reimbursed for the
price of sale
*Redemption does not terminate co-
ownership
WHO CAN REDEEM?
Legal redemption may only be exercised by
the co-owner/s who did not part with his or
their pro indiviso share in the property held
in common
Art. 494. No co-owner shall be obliged to
remain in the co-ownership. Each co-
owner may demand at any time the
partition of the thing owned in common,
insofar as his share is concerned.
Nevertheless, an agreement to keep the
thing undivided for a certain period of
time, not exceeding ten years, shall be
valid. This term may be extended by a new
agreement.
A donor or testator may prohibit partition
for a period which shall not exceed twenty
years.
Neither shall there be any partition when
it is prohibited by law.
No prescription shall run in favor of a co-
owner or co-heir against his co-owners or
co-heirs so long as he expressly or
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 46
impliedly recognizes the co-ownership.
(400a)
PERPETUAL CO-OWNERSHIP – endless
ownership which the law frowns since it is a
cause of conflicts in management and
possession among the co-owners.
*Right to demand partition does not
prescribe as long as the co-ownership is
recognized
*A co-owner cannot acquire a property
owned in common by prescription UNLESS
there is repudiation
REQUISITES OF A VALID REPUDIATION:
1. Performance of unequivocal acts of
repudiation amounting to ouster of
trust to other co-owners
2. Positive acts have been made known
3. Evidence must be clear and
convincing
PARTITION – segregation or division of a
property in common to those to whom it
belongs in parts
MAY A CO-OWNER DEMAND PARTITION?
Yes, at anytime because the law
discourages co-ownership because it is
seemingly an imaginary agreement
WHEN IS PARTITION NOT ALLOWED?
1. Indivision within 10 years is
stipulated by co-owners
2. Co-ownership is imposed as a
condition in a donation or last will
*A donor or testator may prohibit
partition for a period of which shall not
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PROPERTY REVIEWER
exceed 20 years. It is not renewable
because it is impossible to do so
3. When in the nature of the property in
common, it cannot be divided such as
conjugal property and party walls
4. When partition will render the
property unserviceable for the use and
purpose which it is intended
WHAT IF IT WILL AFFECT THE USEFULNESS
OF THE PROPERTY? WILL IT BE A VALID
EXCUSE FOR PARTITION? No.
PIZZA PIE LOT IN EFFECT OF THE
PARTITION, WILL IT FALL UNDER
PROHIBITION TO PARTITION?
No. It is the logical and necessary
consequence of the partition. It does not
render the thing unserviceable.
4. Issue of ownership had not been
resolved yet
PARTITION WILL BE DONE UNTIL DEATH OF
C?
Valid if C died before the 10 year period
Void if C died after the 10 year period
Because death is certain and inevitable.
Art. 495. Notwithstanding the provisions of
the preceding article, the co-owners
cannot demand a physical division of the
thing owned in common, when to do so
would render it unserviceable for the use
for which it is intended. But the co-
ownership may be terminated in
accordance with Article 498. (401a)
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 47
LEGAL/JURIDICAL PARTITION – you do not
physically divide the object but only sell the
object to one co-owner or a third person
and divide the proceeds. It is NOT always a
court ordered partition. It still has the force
of law.
EXAMPLE: Car
IS IT POSSIBLE DIVIDE THE CAR? REMEDY?
Yes, but it will render the car unserviceable.
Consolidation or merger of rights is the best
remedy with the right of reimbursement
XPN: When all does not like to purchase
the property, sell it to another (not co-
owner) and divide proceeds
MAY THE RULE BE APPLIED TO A PARCEL
OF LAND OR OBJECTS THAT MAY BE
PHYSICALLY DIVIDED?
Yes, it is applicable to all kinds of property.
Legal or juridical partition can be resorted
to even if it is possible for the object to be
physically divided.
IS ART 495 ABSOLUTELY PROHIBIT
PARTITION?
No. Only the physical partition of the object
KINDS OF PARTITION:
1. Juridical
2. Physical
MAY PARTITION BE MADE ORALLY?
Yes, if it is manifest that there is real
intention on the part of the parties.
Moreover, the Statute of Frauds, which
requires an agreement to be in writing is
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PROPERTY REVIEWER
not applicable to partition since what is
talked about is only partition and there is
no conveyance
Art. 496. Partition may be made by
agreement between the parties or by
judicial proceedings. Partition shall be
governed by the Rules of Court insofar as
they are consistent with this Code. (402)
PARTITION – division between two or more
persons of real or personal property which
they own as co-partners, co-owners, etc,
effected by setting apart of such interests
so that they may enjoy and possess it in
severalty
BASIC ISSUES IN PARTITION:
1. Is the plaintiff really the co-owner?
2. How should the thing be divided?
HOW IS PARTITION EFFECTED?
1. Agreement between and among the
parties
2. Agreement may be oral or in writing.
It can also be judicial if the
agreement involved is realty
through an action against co-owners
*Superior rights over property under
partition is not precluded
*In case of personalty, if actual partition
could not be made, it may be sold under
the discretion of the court and the
proceeds divided among the owners
after deducting the necessary expenses
Art. 497. The creditors or assignees of the
co-owners may take part in the division of
the thing owned in common and object to
its being effected without their
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concurrence. But they cannot impugn any
partition already executed, unless there
has been fraud, or in case it was made
notwithstanding a formal opposition
presented to prevent it, without prejudice
to the right of the debtor or assignor to
maintain its validity. (403)
WHO ARE CREDITORS IN ARTICLE 497?
Those who are creditors of the co-owners
DURING co-ownership. Both ordinary and
preferred creditors
*The creditors are allowed to take part in
the partition because they own part of the
interests of the co-owner who made the
assignment or alienation. They cannot
oppose the implementation of a partition
effected without their conformity
IS NOTICE REQUIRED TO THE CREDITORS
FOR PARTITION?
Yes but it does not affect the validity of the
partition. The purpose of the notification is
to inform the creditors so that they can
participate, this is in line with the principle
of due process
A ASSIGNED HIS SHARE TO D. B AND C ARE
ALSO CO-OWNERS. DURING PARTITION,
WHO WILL PARTICIPATE?
D, when the deed of sale was registered. He
acts as co-owner.
NO DEED OF SALE? WHO WILL
PARTICIPATE?
A as co-owner and D as assignee provided A
did not yet FULLY assigned his rights to the
assignee.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
RESTRICTIONS TO CREDITORS OR
ASSIGNEE:
They cannot ANYMORE assail a partition
that has already been EXECUTED except:
1. There has been fraud perpetrated
2. It was made despite formal
opposition thereto
The debtor or assignor is given the right
to rebut the claims of the creditor or
assignee to establish the validity of the
partition
Art. 498. Whenever the thing is essentially
indivisible and the co-owners cannot agree
that it be allotted to one of them who shall
indemnify the others, it shall be sold and
its proceeds distributed. (404)
*Applicable to all kinds of property
Art. 499. The partition of a thing owned in
common shall not prejudice third persons,
who shall retain the rights of mortgage,
servitude or any other real rights belonging
to them before the division was made.
Personal rights pertaining to third persons
against the co-ownership shall also remain
in force, notwithstanding the partition.
(405)
*Applicable even to creditors and assignees.
The reason is that they were not able to
intervene in the partition
*I am a third person, did not participate,
rights prejudiced, I cannot challenge the
partition anymore
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 49
CAN THE CREDITOR STILL ASSAI
PARTITION?
Yes if they were defrauded
Art. 500. Upon partition, there shall be a
mutual accounting for benefits received
and reimbursements for expenses made.
Likewise, each co-owner shall pay for
damages caused by reason of his
negligence or fraud. (n)
Art. 501. Every co-owner shall, after
partition, be liable for defects of title and
quality of the portion assigned to each of
the other co-owners. (n)
OBLIGATIONS OF CO-OWNERS AFTER
PARTITION:
1. Account for the benefits received
2. Reimburse expenses incurred by
others which are legally
reimbursable, like expenses for
preservation of the thing owned in
common
3. Indemnify the other co-owners for
the damages suffered by them due
to negligence or fraud of the
indemnifying co-owner
4. Warrant defects of title and quality
of the portions assigned to each of
them
EFFECTS OF PARTITION:
1. Confers upon the co-owners
exclusive title over the property
adjudicated to him
2. The possession of the co-owner of
the property adjudicated to him
shall deem exclusive for the period
which shall be deemed exclusive for
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
the period during which co-
possession lasted. In other words, it
is deemed continous.
Title IV. - SOME SPECIAL PROPERTIES
CHAPTER I
WATERS
*CHECK THE CODAL...
WATERS – refers to water underground,
above the ground, atmosphere and within
the territorial jurisdiction
OWNERSHIP OF WATERS – State
ownership:
1. Continuous or intermittent waters
arising on such lands
2. Lakes and lagoons naturally
occurring on such lands
3. Rain water falling on such lands
4. Subterranean or ground waters
5. Waters in swamps and marshes
WATER RIGHT - privilege granted by State
to persons to appropriate and use water.
WATER PERMIT - only citizen of the
Philippines, of legal age, or juridical persons
are allowed to exploit and develop water
WHY IS THERE MAYNILAD?
Because there are still necessary things to
be done in order for water to be
appropriated and MAYNILAD has been
granted franchise for it to explore and
develop the water to be accessible for
everyone.
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WHAT IS BEING GRANTED BY THE STATE?
Water rights but ownership of water still
remains to the State.
MAY A FOREIGN BE ALLOWED TO
DISTRIBUTE WATER (FRANCHISE GIVEN BY
CONGRESS)?
No. Only Filipino citizens and corporations
CHAPTER 2
MINERALS
Art. 519. Mining claims and rights and
other matters concerning minerals and
mineral lands are governed by special
laws. (427a)
MINERALS – all inorganic substances found
in nature, whether in solid, liquid or
gaseous, or any intermediate state, with the
exception of the soil which supports organic
life, and of ordinary earth, gravel, sand and
stone which are used for building or
construction purposes
MINERAL LANDS – lands in which minerals
exist in sufficient quantity or quality to
justify the necessary expenditures to be
incurred in extracting or utilizing such
minerals
*MINERAL AGREEMENTS ARE ONLY
ALLOWED FOR 25 YEARS, RENEWABLE FOR
ANOTHER 25 YEARS. MAXIMUM OF 50
YEARS.
WHAT ARE THE MODES IN MINERAL
AGREEMENT?
1. Mineral Producion Starting
Agreement – contractor finances
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PROPERTY REVIEWER
and produces technology, the
government has no share
2. Co-production – government inputs
to projects and shares in the
expenses of the contractor, not
equal share
3. Joint venture – most common,
government and contractor shares,
equity share, gross output of mining
is shared.
4. Financial Technical Assistance
Agreement (FTAA) – large-scale
development and utilization of
minerals. It requires $4M capital and
$50M capital investment. 25 years,
renewable for another 25 years.
*You cannot just explore minerals in the
Philippines without an EXPLORATION
PERMIT – good for a term of 1 years
renewable for another 2 years for non
metallic minerals, max of 4. 6 years on
metallic minerals.
MINERAL PROCESSING PERMIT –
processing of minerals, both Filipino and
foreign citizens, 5 years – 5 years, not to
exceed 25 years
EXPLORATION – seeking minerals not
knowledgeable where
PROCESSING – you already found the
minerals
*Minerals are special properties
CHAPTER 3
TRADE-MARKS AND TRADE-NAMES
Art. 520. A trade-mark or trade-name duly
registered in the proper government
bureau or office is owned by and pertains
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to the person, corporation, or firm
registering the same, subject to the
provisions of special laws. (n)
TRADE-MARK – any visible sign capable of
distinguishing the goods or services of an
enterprise and shall include a stamped or
marked container of goods
TRADE-NAME – name or designation
identifying the enterprise
COLLECTIVE MARK – any visible sign
designated as such in the application for
registration and capable of distinguishing
the origin or any other common
characteristic, including the quality of goods
or services of different enterprises which
use the sign under the control of the
registered owner in the collective mark
WHAT KIND OF PROPERTY IS
TRADEMARK?
It is a personal property
INFRINGEMENT – happens when there is a
creation of confusion as to the identity of
the products
ELEMENTS OF TRADE-MARK
INFRINGEMENT:
1. Validity of plaintiffs mark
2. Plaintiffs ownership of the mark
3. Use of the mark or imitation by
another which causes the confusion
TODAY, THERE IS NO NEED OF
REGISTRATION IN THE IPO, AS LONG AS
YOU ARE USING THE TRADEMARK/NAME
FOR A LONG TIME. HOWEVER, YOU
CANNOT SUE ANOTHER PERSON IF THEY
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
INFRINGE YOUR PROPERTY UNLESS YOU
REGISTER IT.
UNFAIR COMPETITION – employment of
deception as if the product is an original
DOMINANCY TEST – similarity in size, form
and color, while relevenat is not conclusive.
If the competing trade-mark contains the
main or essential or dominant features of
another, and confusion and deception or
imitations is not necessary; nor it is
necessary that infringing label should
suggest an effort to imitate
Art. 521. The goodwill of a business is
property, and may be transferred together
with the right to use the name under
which the business is conducted. (n)
GOOD WILL – special personal property,
A consists largely of a reputation for
competence, honesty and fair dealing
Art. 522. Trade-marks and trade-names are
governed by special laws. (n)
POSSESSION
Art.523. Possession is the holding of a
thing or the enjoyment of a right.
WHAT IS POSSESSION?
It is the holding of a thing or the enjoyment
of the right
Only the things and rights which are
susceptible of being APPROPRIATED may be
the object of possession.
CLASSES OF POSSESSION:
1. Possession in one's own name or in
another
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PROPERTY REVIEWER

2. Possession in the concept of an ex. possession of a vendee of a piece of

owner or in the concept of a holder land from one who pretends to be the
3. Possession in good faith or owner but is in fact not the owner
possession in bad faith thereof

WHAT ARE THE ELEMENTS OF 4. Possession with title of dominium,

POSSESSION? that is with a just title from the
1. Holding or control of the thing owner - this is possession that
2. Deliberate intention to possess springs from ownership
(animus possidendi
3. Possession by virtue of one's own *MERE POSSESSION cannot defeat the title
right of a holder of a registered Torrens title to
HOW IS THE FIRST ELEMENT real property
ACCOMPLISHED?
The element of holding of a thing is WHAT ARE THE ELEMENTS OF
accomplished by acquiring possession POSSESSION?
through any modes provided in Art 531 1. Occupancy
2. Apprehension
CLASSIFICATION ACCORDING TO DEGREES 3. Right
OF POSSESSION: 4. Intent to possess
1. Possession with a right/title
(GRAMMATICAL DEGREE) - WHAT IS THE PRINCIPAL CHARACTERISITIC
possessor knows that his possession OF POSSESSION?
is wrongful It is presumed ownership
ex. possession of a thief or a usurper of
land DISTINCTION BETWEEN RIGHT TO
2. Possession with juridical title but POSSESSION AND RIGHT OF POSSESSION:
not in the concept of an owner - 1. Right TO Possession (JUS
possession peaceably acquired POSSIDENDI) - an incident or attribute
ex. possession in the concept of a of ownership over a thing
tenant, depositary, agent, bailee, ex. an owner of an apartment has the
trustee, lessee, antithetic creditor - this right to possess it
degree of possession will NEVER ripen
into full ownership as long as there is no 2. Right OF Possession (JUS
repudiation of concept under which POSSESSIONES) -independent right
property is held separate from ownership
ex. a lessee is entitled to possess the
3. Possession with just title or title property that it leased.
sufficient to transfer ownership,
but not from the true owner - this POSSESSOR NEED NOT TO BE THE OWNER
degree of possession ripens into full There is a distinction between possession
ownership by lapse of time and ownership; the possessor of the thing
need not to be the owner thereof, thus a

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 53
lessee is in possession but he is not the
owner of the property.
Art. 524. Possession may be exercised in
one's own name or in that of another.
Direct Possession - actual possession of a
thing, own name
Indirect Possession - possession through an
agent, name of another
KINDS OF INDIRECT POSSESSION:
1. Voluntary - as when the agent
possesses for the principal by virtue
of agreement
2. Necessary - as when a mother
possesses for a child still in her
womb
3. Unauthorized - this will become the
principal's possession only after
there has been a ratification without
prejudice to the effects of
negotiorum gestio (inofficious
management)
WHAT IS THE RIGHT OF A POSSESSOR "EN
CONCEPTO DE DUENO?”
A possessor in the concept of an owner can
do , on the thing or right possessed,
whatever the "owner" of the thing or right
can do. Thus, he can:
1. bring actions to protect and
maintain his possession
2. ask for the registration of his
possession
3. entitled to just compensation in case
of expropriation
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
BUT until the possession has ripen into full
ownership like by operation of prescription,
the possessor may lose his possession to
those who can establish SUPERIOR RIGHTS
Art. 525. The possession of things or rights
may be had in one of two concepts: either
in the concept of owner, or in that of the
holder of the thing or right to keep or
enjoy it, the ownership pertaining to
another person.
TWO CONCEPTS OF POSSESSION:
1. Concept of an owner - the possessor
proceeds from the person's belief or
pretension that he is the owner of the thing
as manifested by certain acts of ownership
and the public believes he is the owner.
*tax declarations are NOT conclusive
evidence of ownership, nevertheless they
are good indicia of possession in the
concept of an owner
2. Concept of a holder - the possession
does not arise in the belief or conviction
that he is the owner of the thing, because
the possessor ACKNOWLEDGES the
ownership of the thing by another person.
ex. lessee, depositary
WHAT IS THE DISTINCTION BETWEEN
POSSESSION IN GOOD FAITH AND
POSSESSION IN THE CONCEPT OF AN
OWNER?
In possession in good faith, the possessor is
not aware of any flaw or problem in his
title.
In possession in the concept of an owner,
the possessor may or may not be aware of
such flaw but nevertheless, he performs
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acts of ownership. He does not recognize
any title of ownership in the hands of
another person. Here, good faith of bad
faith is immaterial.
*possession in the concept of an owner is
required in acquisitive prescription whether
there is good or bad faith.
*possession in the eyes of the law does not
require a man to have his feet on every
square meter of the ground before he is
deemed to be in possession.
Art. 526. He is deemed a possessor in good
faith who is not aware that there exists in
his title or mode of acquisition any flaw
which invalidates it.
He is deemed a possessor in bad faith who
possesses in any case contrary to the
foregoing.
Mistake upon a doubtful or difficult
question of law may be the basis of good
faith.
REQUISITES FOR POSSESSION IN GOOD
FAITH OR BAD FAITH:
1. The possessor has a title or mode of
acquisition
2. There is a flaw or defect in said title
or mode
3. The possessor is aware or unaware
of the flaw or defect
*good faith is ALWAYS presumed.
REASONABLE belief that a prudent man will
investigate into
*there is no tacking of bad faith, UNLESS
the successor in interest had learned of the
defect in the title and still purchased it
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
*bad faith is not transmissible from a
person to another
EXAMPLES OF GOOD FAITH:
1. possession on just title under claim
of ownership
2. a mistake on question of law may be
the basis of good faith
3. honest belief on the validity of one's
right, ignorance of a superior claim
and absence of intention to
overreach another
4. belief that the person to whom he
received it, has the right to convey it
5. vendee a retro who purchased the
property without knowledge of
infirmity
EXAMPLES OF BAD FAITH:
1. lessee who continued to stay
despite expiration of contract
2. possessor who are not owners of
the land and built structures therein
3. usurper who continues to hold land
without title or good reason, cannot
acquire status of good faith
4. possessor of land duly registered in
another's name
5. possessor as a result of simulated
transfer
6. tenant not the owner
7. purchaser who failed to make
necessary investigation when
property not registered
8. purchaser of a property subject to
litigation
WHAT IS A FOREIGNER WAS ABLE TO
SECURE LANDS AND DIED?
Still bad faith because foreigners are not
allowed to acquire lands.
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Art. 527. Good faith is always presumed,
and upon him who alleges bad faith on the
part of a possessor rests the burden of
proof.
*it is not just and fair to presume bad faith
Art. 528. Possession acquired in good faith
does not lose this character except in the
case and from the moment facts exist
which show that the possessor is not
unaware that he possesses the thing
improperly or wrongfully.
The character of good faith remains until
the possessor is shown to have been aware
that he possesses the thing improperly or
wrongfully.
How will presumption of good faith cease?
When either of the two will be done to the
possessor:
1. Extraneous evidence showing
defects
2. Filing of complaint for recover by
true owner
3. Letter giving knowledge of
ownership by another
4. Judicial summons
In short, upon AWARENESS of the possible
flaw
*the receipt of judicial summons converts a
possessor in good faith into a possessor in
bad faith. However, you are still in good
faith in the eyes of third persons.
WHAT IS THERE WAS FORCE MAJEURE AND
THE PROPERTY WAS DESTROYED?
GF: No liability (GF from the start even if
eventually loses the case)
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PROPERTY REVIEWER
BF: with liability
Art. 529. It is presumed that possession
continues to be enjoyed in the same
character in which it was acquired, until
the contrary is proved.
*there is presumption of the continuity of
the character of possession until the
contrary is proved.
Art. 530. Only things and rights which are
susceptible of being appropriated may be
the object of possession.
*only things susceptible of appropriation
can be an object of possession.
KINDS OF POSSESSOR:
1. Public - possessor is the Government
2. Private - possessor is a private person or
entity
*possession of public lands, however long,
does not confer title
*after death, the human body becomes a
special property in the sense that parts
thereof could be detached and donated by
the deceased provided there is a PRE-
EXISITNG DOCUMENT like a will, where he,
as a testator allowed some of his organs to
be donated or used for transplantation,
medical or dental, etc. It only becomes
effective upon death of the person.
*It should be made without payment as a
consideration
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 56
Chapter 2
Art. 531. Possession is acquired by the
material occupation of a thing or the
exercise of a right, or by the fact that it is
subject to the action of our will, or by the
proper acts and legal formalities
established for acquiring such right.
WHAT ARE THE ELEMENTS OF
POSSESSION?
1. Corpus - refers to the existence of a thing
and its holding
2. Animus - refers to the intent to possess
the thing
*even is somebody is holding the thing, but
there is no intention to exercise a right over
it, it is not possession
WHAT IS THE DIFFERENCE BETWEEN
ACTUAL POSSESSION AND CONSTRUCTIVE
POSSESSION?
Actual possession consists in the
manifestation of acts of dominion over
property of such a nature as a party would
naturally exercise over his own. On the
other hand, constructive possession may
be had through succession, donation,
execution of public instruments, or
possession by sheriff by virtue of a court
order,
*Material occupation is the actual holding
of thing, not of rights
KINDS OF CONSTRUCTIVE DELIVERY:
1. Tradicion brevi manu - from being
a possessor by title other than ownership, it
continues to possess it now under
ownership
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PROPERTY REVIEWER
ex. lessee who purchased the property
2. Tradicion constitutum
possessorium - possessor who was the
owner became a possessor under a title less
than an owner
ex. owner who sold his property
ACQUIRING RIGHT OF POSSESSION:
1. Tradicion Symbolica -
constructive delivery of a mere
symbol placing the thing under the
control of a transferee
2. Tradicion Longa Manu -
constructive delivery by pointing
the former of the things to be
transferred
POSSESSION IN THE CONCEPT OF AN
OWNER VS. POSSESSOR IN GOOD FAITH –
Possessor in the concept of an owner ripens
into ownership while a possessor in good
faith, you act as if you are the owner,
number of years helps you in the acquisitive
prescription
Art. 532. Possession may be acquired by
the same person who is to enjoy it, by his
legal representative, by his agent, or by
any person without any power whatever:
but in the last case, the possession shall
not be considered as acquired until the
person in whose name the act of
possession was executed has ratified the
same, without prejudice to the juridical
consequences of negotiorum gestio in a
proper case.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 57
KINDS OF POSSESSION ACCORDING TO
PERSON OF POSSESSOR:
1. Personal Possession - possession
acquired by the same person who
is to enjoy it.
REQUISITES:
a. capacity to possess
b. intent to possess
c. susceptibility to the object possessed
2. Possession through a legal
representative - agent appointed by
principal
REQUISITES:
a. capacity of representative or agent to
possess
b. intent to possess
c. agent or representative does it not for
himself
d. capacity of principal
*this is usually done through the
appointment of an agent under a GENERAL
or SPECIAL POWER OF ATTORNEY.
2. Possession through a person
without authority - person is not
clothed with authority supposed to
be principal
REQUISITES:
a. capacity to possess on supposed principal
b. intent to possess
c. act of ratification by principal over the
acquisition of possession
*the ratification does not suppress the
effects of negotiorum gestio
*the principal is deemed to have acquired
possession from the time the gestor had
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PROPERTY REVIEWER
voluntary took the management of the
former. Retroactivity is the better rule to
prevent any break or interruption in the
possession acquired by the gestor for the
principal.
WHAT IS THE PURPOSE OF RATIFICATION?
To reimburse the gestor who voluntary took
management over the property
Art. 533. The possession of hereditary
property is deemed transmitted to the heir
without interruption and from the
moment of the death of the decedent, in
case the inheritance is accepted.
One who validly renounces an inheritance
is deemed never to have possessed the
same.
When is the heir deemed to have
possessed the property?
If he accepts, from the moment the death
since there is no interruption. If he refuses,
deemed to have never possessed it.
What is the reason for the rule on
uninterruption?
The purpose is to prevent vacuum as
regards possession during the interim
period between the death of the
descendant and the heir's acceptance.
SITUATION 1:
2000 – DEATH OF DESCENDENT
2005 – ACCEPTED BY HEIR
WHEN DID HE COMMENCE TO POSSESS
THE PROPERY?
2000, presumption of acceptance
SITUATION 2:
2000 – DEATH
2995 – REJECTED
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 58
WHEN DID HE COMMENCE TO POSSESS
THE PROPERTY?
He never possessed the property.
WHO IS IN POSSESSION OF PROPERTY IN
2000 PRIOR REJECTION?
No one since he rejected the property
*In case there are no more heirs, the
property shall revert back to the STATE
Art. 534. On who succeeds by hereditary
title shall not suffer the consequences of
the wrongful possession of the decedent, if
it is not shown that he was aware of the
flaws affecting it; but the effects of
possession in good faith shall not benefit
him except from the date of the death of
the decedent.
*the heir will not be saddled with the dire
consequences of possession in bad faith of
his decedent, if it is not shown that he was
aware of the flaws or defects in the
possession of his predecessor in interest
*effects of possession in good faith shall not
benefit him except upon the death of the
descendent
WHAT IS THE REASON FOR THE RULE THAT
BAD FAITH CANNOT BE TRANSMITTED?
It is only a state of mind personal to the
person who acted.
WHEN WILL THE GOOD FAITH OF
SUCCESSOR COMMENCE?
From the time of death of decedent
SITUATION 1:
A DIED 2010 (BF) – 20 YEARS POSSESSION
B – DESCENDENT (GF)
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PROPERTY REVIEWER
HOW MANY MORE YEARS SHOULD BE
POSSESS THE PROPERTY TO OWN IT BY
ACQUISITVE PRESCRIPTION?
10 more years
SITUATION 2:
A DIED 2010 (BF) – 20 YEARS POSSESSION
B – DESCENDENT (BF)
HOW MANY MORE YEARS SHOULD BE
POSSESS THE PROPERTY TO OWN IT BY
ACQUISITVE PRESCRIPTION?
30 years
WILL THE GOOD FAITH OF THE HEIRS
ERASE THE BAD FAITH OF THE DECEDENT?
No because good/bad faith is personal to a
person
Art. 535. Minors and incapacitated persons
may acquire the possession of things; but
they need the assistance of their legal
representatives in order to exercise the
rights which from the possession arise in
their favor.
Minors - below 18 years of age
Incapacitated persons - do not have the
capacity to act
ex.
a. insane
b. imbecile
c. deaf-mute
d. civil interdictee
e. prodigal or spendthrifts
f. absentee
GENERAL RULE: they should be provided
legal representatives to acquire possession
of things
XPN: if the delivery is simultaneous
Example: Minors buying at sari-sari store
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 59
Art. 536. In no case may possession be
acquired through force or intimidation as
long as there is a possessor who objects
thereto. He who believes that he has an
action or a right to deprive another of the
holding of a thing, must invoke the aid of
the competent court, if the holder should
refuse to deliver the thing.
*applicable to both movable or immovable
property
*In case there is no objection, prescription
may apply
GENERAL RULE: Possession cannot be
acquired through force or intimidation
EVEN by the owner of the property
XPN: PRINCIPLE OF SELF-HELP
*criminal actions may arise from forceful
illegal eviction
WHEN IS EMPLOYMENT OF REASONABLE
FORCE BY THE OWNER ALLOWED?
The moment he excludes the person from
the enjoyment and disposal of his property
using force reasonably necessary to repel or
prevent an actual or threatened unlawful
physical invasion or usurpation of property.
This is also known as PRINCIPLE OF SELF-
HELP. It authorizes the lawful possessor to
use force to repel or prevent an actual or
threatened unlawful physical invasion of
property-whether realty or personalty.
WHAT ARE THE ACTS WHICH DO NOT GIVE
RISE TO POSSESSION?
1. acquired through force or intimidation,
or violence as long as there is possessor
who objects thereto
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PROPERTY REVIEWER
2. acts executed clandestinely and without
the knowledge of the possessor which
means that:
a. acts are not public
b. unknown to the owner or possessor
3. mere tolerance by the owner or
possessor
Why? Because it is not adverse.
WHAT CRIMINAL CASES MAY BE FILED
AGAINST A VIOLATOR?
Coercion or trespass to dwelling
Art. 537. Acts merely tolerated, and those
executed clandestinely and without the
knowledge of the possessor of a thing, or
by violence, do not affect possession.
ACTS MERELY TOLERATED - those acts
allowed by the owner not by reason of duty
or obligation but by impulse of sense of
neighborhood or good familiarity with
persons.
*do not affect possession
*possession of land by tolerance become
unlawful detainer from the time there is a
demand to vacate
*there is an implied promise that
eventually, he will vacate the place
*squatters have no possessory rights
GENERAL RULE: Possession cannot be
recognized at the same time in two
different persons
XPN: co-ownership which carries with it
possession and other possessions in
different concepts
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Art. 538. Possession as a fact cannot be
recognized at the same time in two
different personalities except in the cases
of co-possession. Should a question arise
regarding the fact of possession, the
present possessor shall be preferred; if
there are two possessors, the one longer in
possession; if the dates of the possession
are the same, the one who presents a title;
and if all these conditions are equal, the
thing shall be placed in judicial deposit
pending determination of its possession or
ownership through proper proceedings.
RULES OF PREFERENCE:
1. actual possessor shall be preferred
2. if there are two possessors, the one
longer in possession
3. dates of possession the same, the
one with the title
4. if all of the above are equal, the fact
of judicial determination shall be
resorted to, in the meantime, it shall
be placed in judicial deposit
CHAPTER 3
EFFECTS OF POSSESSION
Art. 539. Every possessor has a right to be
respected in his possession; and should he
be disturbed therein he shall be protected
in or restored to said possession by the
means established by the laws and the
Rules of Court.
A possessor deprived of his possession
through forcible entry may within ten days
from the filing of the complaint present a
motion to secure from the competent
court, in the action for forcible entry, a
writ of preliminary mandatory injunction
to restore him in his possession. The court
shall decide the motion within thirty (30)
days from the filing thereof.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
RIGHTS OF EVERY POSSESSOR:
1. be respected in his possession
2. be protected in or restored to said
possession by legal means should he
be disturbed therein
3. secure from a competent court in an
action for forcible entry the proper
writ to restore him in his possession
*only the possession acquired and enjoyed
in the concept of an owner can serve as a
title for acquiring dominion
*mere tax declarations, DO NOT vest or
prove ownership of the property in the
declarant. Yet, it is undeniably coupled with
actual possession an is a great indicia on the
claim of ownership
*the ONLY issue in ejectment is possession
*actual prior possession is required in
forcible entry
*complainant in ejectment case must allege
and prove prior physical possession
*prior institution of an action for unlawful
detainer, a DEMAND to oblige lessee to pay
or vacate is necessary, otherwise,
jurisdiction cannot be acquired by MTC.
*notice to vacate is needed only when the
ground is lessee's failure to pay rent or
comply with terms of lease
*in ejectment, the only issue involved is
possession de facto
WHAT IS THE LIMITATION TO INJUCTIONS?
It is not available to take a property out of
possession of a person and place it into that
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 61
of another whose title has not been clearly
established.
*resolution of an issue of ownership is NOT
a bar to a separate action to finally
determine issue of ownership
*possessor in bad faith is also allowed for as
long as the act done is not yet a criminal
one
Art. 540. Only the possession acquired and
enjoyed in the concept of owner can serve
as a title for acquiring dominion.
*Just title is not limited to documents which
are sufficient to transfer ownership. it can
cover acts, even verbalacts which are legally
sufficient to transmit ownership of property
of a real right.
WHAT IS THE DIFFERENCE BETWEEN JUST
TITLE IN POSSESSION AND JUST TITLE IN
PRESCRIPTION?
In just title in possession, it is a valid title
sufficient to transfer ownership. It is
presumed in possesssion. In just title in
prescription, the title is a colorable title
meaning the grantor is not the owner. It is
not presumed.
HOW WOULD YOU DISTINGUISH JUST
TITLE FROM TRUE AND VALID TITLE?
Just title is rebuttable while a valid title is
not rebuttable hence a registered title.
*True and valid title prevails over a just
title.
Deed of sale = true and valid title
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PROPERTY REVIEWER
*Just title by prescription can be attacked
collaterally.
*Upon registration, it becomes a valid and
true title
WHAT IS A PUTATIVE TITLE?
A kind of title where a person has the
impression and belief that he is the owner
of the property; however, he is not the
owner there being NO mode of acquiring
ownership present.
ex. "A" is in possession of a property which
he believes to be his own due to impression
that he inherited it as an adopted child.
However, eventually it was discovered that
the adoption process was void.
Consequently, there is no successional right
has been transferred.Another example
would be possession of a thief.
PAYMENT OF REAL TAXES PLUS POSSESSION
IN THE CONCEPT OF A HOLDER =STRONG
EVIDENCE OF OWNERSHIP
Art. 541. A possessor in the concept of
owner has in his favor the legal
presumption that he possesses with a just
title and he cannot be obliged to show or
prove it.
WHAT ARE THE PRESUMPTIONS OF LAW IN
FAVOR OF POSSESSION?
1. Presumption of continuance of
possession
2. Uninterrupted possession of
hereditary property
3. Possession with just title
4. Exclusive possession of common
property
5. Possession of movables with real
property
6. Uninterrupted possession
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WHEN IS THE PRESUMPTION THAT A
POSSESSOR HAS A JUST TITLE APPLICABLE?
REQUISITES:
1. He must be in possession
2. Possession must be in the concept of an
owner
WHAT ARE THE REASONS FOR THE
PRESUMPTION?
1. Presumption that one is in good faith
2. Inconvenience of carrying proof of
ownership around
FOR PURPOSES OF PRESCRIPTION, IS THIS
PRESUMPTION APPLICABLE?
No.
IS THE POSSESSOR OBLIGED TO SHOW OR
PROVE JUST TITLE?
No. He is presumed to be the owner
thereof, UNLESS there be VALID REASON.
The remedy of the one seeking for it is
JUDICIAL PROCESS for recovery of property.
Art. 542. The possession of real property
presumes that of the movables therein, so
long as it is not shown or proved that they
should be excluded.
GENERAL RULE: The possession of
movables in an immovable is presumed,
unless it is shown that they should be
excluded
XPN: If it has been proven that the
movables are not appurtenent thereto. As
when movables are merely deposited for
safekeeping.
Civil Interruption - serving of judicial
summons
XPN: 1. Void for lack of solemnities of
judicial summons
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PROPERTY REVIEWER
2. Desist complain
3. Absolve from complain
Extra judicial Interruption - the person
himself sends demand letters or
approaches the other person personally
Art. 543. Each one of the participants of a
thing possessed in common shall be
deemed to have exclusively possessed the
part which may be allotted to him upon
the division thereof, for the entire period
during which the co-possession lasted.
Interruption in the possession of the whole
or a part of a thing possessed in common
shall be to the prejudice of all the
possessors. However, in case of civil
interruption, the Rules of Court shall apply.
*Upon the partition of the property in
common, each one of the co-owners shall
be deemed in possession of that portion
alloted to him from the time the partition is
made.
Example: "A", "B" and "C" are brothers.
They inherited a parcel of land from their
father in 1988 and partitioned it in 1999. All
are in good faith. Anyone who shall claim
rights in 1999 against any of the shares
alloted to the participants in the partition
will fail for the reason that the possession
began in 1988 NOT in 1999, and therefore,
the ownership of the participants had
already been vested on the basis of
ordinary prescription, which requires only
10 years of continuous possession.
*If there is interruption, all co-possessors
affected.
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Art. 544. A possessor in good faith is
entitled to the fruits received before the
possession is legally interrupted.
Natural and industrial fruits are considered
received from the time they are gathered
or severed.
Civil fruits are deemed to accrue daily and
belong to the possessor in good faith in
that proportion.
***REFER TO TABLE***
MEANING OF FRUITS:
1. Natural Fruits - spontaneous
products of the soil and the young of
animals
2. Industrial Fruits - produced by lands
of any kind through cultivation or
labor
3. Civil Fruits - rents of buildings, price
of lease of lands and other property.
Charges - refer to the expenses for payment
of taxes, interest on mortgage obligations.
These charges shall be divided in the same
proportion as in the division or sharing of
the expenses for cultivation or net harvest.
*In civil fruits, actual receipt of is
immaterial
Art. 545. If at the time the good faith
ceases, there should be any natural or
industrial fruits, the possessor shall have a
right to a part of the expenses of
cultivation, and to a part of the net
harvest, both in proportion to the time of
the possession.
The charges shall be divided on the same
basis by the two possessors.
The owner of the thing may, should he so
desire, give the possessor in good faith the
right to finish the cultivation and gathering
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PROPERTY REVIEWER
of the growing fruits, as an indemnity for
his part of the expenses of cultivation and
the net proceeds; the possessor in good
faith who for any reason whatever should
refuse to accept this concession, shall lose
the right to be indemnified in any other
manner.
*Not applicable to loss, only to proceeds.
What shall be done is still in proportion but
will not consider time of possession
anymore
*Also not applicable to bad faith, only to
good faith
HOW WILL YOU APPLY ARTICLE 545?
STEPS:
1. Total expenses be deducted from the
proceeds of the gross harveest by
reimbursing the spenders
2. Net harvest be divided proportionately
between the spenders in accordance with
the length of their respective possessions.
*In case of refusal, it must be DELIBERATE
Pro rata sharing - proportional at the time
of possession
Art. 546. Necessary expenses shall be
refunded to every possessor; but only the
possessor in good faith may retain the
thing until he has been reimbursed
therefore.
Useful expenses shall be refunded only to
the possessor in good faith with the same
right of retention, the person who has
defeated him in the possession having the
option of refunding the amount of the
expenses or of paying the increase in value
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 64
which the thing may have acquired by
reason thereof.
WHAT ARE NECESSARY EXPENSES?
Those made for the preservation of the
property or those without which, the thing
would deteriorate or be lost.
Example: ordinary repairs required by the
wear and tear dueto the natural use of the
thing.
WHAT ARE THE RIGHS OF A POSSESSOR
WITH REGARD TO NECESSARY EXPENSES?
GF:
1. right to refund
2. right of retention
-during existence not required to pay rent
nor damages pending payment
BF: right to refund ONLY
WHY IS THERE NO RIGHT TO RETENTION IN
CASE OF BF?
As punishment for his bad faith.
IS THERE RIGHT OF REMOVAL?
No. Whether good faith of bad faith.
WHAT ARE THE ACQUISITIVE
PRESCRIPTION PERIODS?
1. Movable
GF or ordinary prescription: 4 years
BF or extraordinary prescription: 8 years
2. Immovable
GF or ordinary prescription: 10 years
BF or extraordinary prescription: 30 years
*Judge Quiambao’s important note: Taxes
are necessary expenses. Eventhough Justice
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PROPERTY REVIEWER
Paras does not consider it as one, still Judge
Quiambao, in her humble opinion considers
TAXES AS NECESSARY EXPENSES.
Art. 547. If the useful improvements can
be removed without damage to the
principal thing, the possessor in good faith
may remove them, unless the person who
recovers the possession exercises the
option under paragraph 2 of the preceding
article.
What are useful expenses?
Those which ADDS value to the things or
augment its income to increase its
usefulness or better serve the purpose for
which it is intended.
Example: cutting the shrubs
WHAT ARE THE RIGHTS OF A POSSESSOR
WITH REGARD USEFUL EXPENSES?
GF:
1. Right to refund
2. Right of retention
3. Right of removal provided:
a. without damage to the principal thing
b. subject to the superior right of the
prevailing party to keep the imnprovements
by paying the expenses or the increase in
value
BF: NO RIGHT
Art. 548. Expenses for pure luxury or mere
pleasure shall not be refunded to the
possessor in good faith; but he may
remove the ornaments with which he has
embellished the principal thing if it suffers
no injury thereby, and if his successor in
the possession does not prefer to refund
the amount expended.
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WHAT ARE THE EXPENSES FOR PURE
LUXURY OR MERE PLEASURE?
Those which are not necessary for the
preservation of a thing nor o they increase
its productivity, but merely to embellish the
thing and for its enjoyment and
convenience.
Example: water fountains in gardens
Art. 549. The possessor in bad faith shall
reimburse the fruits received and those
which the legitimate possessor could have
received, and shall have a right only to the
expenses mentioned in paragraph 1 of
Article 546 and in Article 443. The
expenses incurred in improvements for
pure luxury or mere pleasure shall not be
refunded to the possessor in bad faith, but
he may remove the objects for which such
expenses have been incurred, provided
that the thing suffers no injury thereby,
and that the lawful possessor does not
prefer to retain them by paying the value
they may have at the time he enters into
possession. (445a)
Art. 551. Improvements caused by nature
or time shall always insure to the benefit
of the person who has succeeded in
recovering possession.
Art. 552. A possessor in good faith shall not
be liable for the deterioration or loss of the
thing possessed, except in cases in which it
is proved that he has acted with fraudulent
intent or negligence, after the judicial
summons.
A possessor in bad faith shall be liable for
deterioration or loss in every case, even if
caused by a fortuitous event.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
Art. 553. One who recovers possession
shall not be obliged to pay for
improvements which have ceased to exist
at the time he takes possession of the
thing. (458)
Art. 554. A present possessor who shows
his possession at some previous time, is
presumed to have held possession also
during the intermediate period, in the
absence of proof to the contrary.
Art. 556. The possession of movables is not
deemed lost so long as they remain under
the control of the possessor, even though
for the time being he may not know their
whereabouts.
*General location is sufficient
Art. 557. The possession of immovables
and of real rights is not deemed lost, or
transferred for purposes of prescription to
the prejudice of third persons, except in
accordance with the provisions of the
Mortgage Law and the Land Registration
laws.
Example: "A" purchased an untitled
property which sale he registered with the
Registry of Property. He did not occupy the
property. Not being titled, the property may
be acquired by prescription by an actual
possessor when all elements of prescription
have been complied with.
Insofar as the occupant is concerned, the
possession and ownership of "A" is already
lost. However, insofar as strangers are
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 66
concerned and who rely on the records, "A"
is still the owner of the property.
Art. 558. Acts relating to possession,
executed or agreed to by one who
possesses a thing belonging to another as a
mere holder to enjoy or keep it, in any
character, do not bind or prejudice the
owner, unless he gave said holder express
authority to do such acts, or ratifies them
subsequently.
*When a mere possessor transfers
ownership of the property to another,
owner is NOT bound.
Art. 559. The possession of movable
property acquired in good faith is
equivalent to a title. Nevertheless, one
who has lost any movable or has been
unlawfully deprived thereof may recover it
from the person in possession of the same.
If the possessor of a movable lost or which
the owner has been unlawfully deprived,
has acquired it in good faith at a public
sale, the owner cannot obtain its return
without reimbursing the price paid
therefor.
Title - juridical act that transfers or confers
ownership
REQUISITES:
1. the owner has voluntarily parted with the
possession of his property
2. subsequent possessor is possessing it in
the concept of an owner
3. good faith
Title - juridical act that transfers or confers
ownership
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
GENERAL RULE: The true owner cannot
recover the property if the holder is in good
faith
XPN: PRINCIPLE OF IRREVINDICABILITY -
when the owner has lost it or has been
unlawfully deprived of it
*Criminal implication: Violation of Ati-
Fencing
What is the right of a possessor who
acquires movable claimed by another?
BF: no right
GF: presumed to be owner, equivalent to
title
*Mere possession in good faith is NOT
absolute title
*Where movable is acquired in good faith in
a PUBLIC SALE, owner must REIMBURSE
What is a public sale?
One where there has been a public notice
of sale where anyone can bid.
*A possessor who unlawfully deprives a
property of another, will eventually own is
as long as NO ONE OBJECTS.
*A gun with expired license is a mere
grammatical possession only because right
to possession was already lost when the
license expired
Art. 560. Wild animals are possessed only
while they are under one's control;
domesticated or tamed animals are
considered domestic or tame if they retain
the habit of returning to the premises of
the possessor.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 67
PROPERTY REVIEWER

Wild Animals - live and thrive naturally in

their habitat without the intervention of
man
Examples: crocodiles, snakes, wild boars

Domestic or tame animals - ordinarily

reared, raised or born
Examples: cats, dogs,

Domesticated or tamed animals - wild by

nature but controlled by man
Examples: dolphins, parrots, horses,
carabaos

*Possession of wild animals is good only if

they remain under the control of the
possessor

Art. 561. One who recovers, according to

law, possession unjustly lost, shall be
deemed for all purposes which may
redound to his benefit, to have enjoyed it
without interruption.
*the article applies to real property only
*Do not apply if prejudicial
REQUISITES:
1. possession was lost unlawfully or
unjustly
2. possessor was able to recover his
possession by lawful means
3. uninterrupted possession must be
beneficial to him

“ASPIRE TO INSPIRE BEFORE YOU EXPIRE” © NJQ & MEHA

 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 68
Title VI. - USUFRUCT
CHAPTER 1
USUFRUCT IN GENERAL
Art. 562. Usufruct gives a right to enjoy the
property of another with the obligation of
preserving its form and substance, unless
the title constituting it or the law
otherwise provides.
WHAT IS USUFRUCT?
It is the right to enjoy the property if
another temporarily, including both the
right to use and right to the fruits with the
obligation of returning it at a designated
time and preserving its form and substance,
unless otherwise provided.
RIGHT TO:
1. Use
2. Fruits
PARTIES:
1. Naked owner – owner of the
property who is stripped of the right
to the fruits and to use the property
2. Usufuctuary – beneficiary of the
usufruct
OBJECTS OF USUFRUCT:
1. Real property
2. Personal property like a car
3. Flock or herd of livestock
4. Transmissible right which have capability
of independent existence. A servitude
which has no independent existence cannot
be an object of usufruct.
5. Unproductive thing like sterile animals
WHAT ARE THE CHARACTERISTICS OF
USUFRUCT?
1. Constituted on a property
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PROPERTY REVIEWER
2. Ownership is vested to another
3. Real right
4. Temporary duration
5. Transmissible
WHAT IS THE PURPOSE OF USUFRUCT?
Enjoyment by the usufructuary of the
benefits and advantages derivable from the
object in usufruct, as a consequence of
normal use and exploitation.
WHY IS THERE A NEED TO PRESERVE?
a. To prevent extraordinary exploitation
b. To prevent abuse of the property this is
frequent
c. To prevent impairment
WHAT IS THE STATUS OF A USUFRUCT IN
FAVOR OF A FOREIGNER?
It is valid because the title is not vested in
the usufructuary
*A usufruct over an immovable, which is a
registrable real right, must be duly
annotated at the back of the title to bind
third persons. Otherwise, innocent
purchasers in good faith may acquire the
usufruct to the prejudice of the
usufructuary
*Ordinarily, usufructuary should be
preserved but contrary, no need to
preserve if for example, consumable
WHY IS THERE A NEED TO PRESERVE?
1. To prevent extraordinary
exploitation
2. To prevent abuse of the property
3. To prevent impairment
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 69
*Usufruct over parcel of land in favour of a
foreigner, VALID – title vested in the
usufructuary
USUFRUCTUARY V LEASE
CREATION: Usufruct - only the owner or his
authorized representative
Lease – not necessarily the owner; lessee
may sublease if allowed
NATURE: Usufruct is always a real right
Lease may be a real right or personal right.
It is a real right if the lease over the land is
registered or the lease is more than 1 year.
MANNER OF CREATION: Usufruct is created
by law, agreement in acts inter vivos, last
will, prescription. Lease is created by
contract except by law which is forced
lease.
EXECUTION OF REPAIRS: Usufructuary has
the duty. Lessee does not have a duty but
may execute if urgent.
MAY USUFRUCTUARY BE CONSTITUTED ON
PERSONAL RIGHTS?
Yes, as long as it is not strictly personal or
intransmissible. Right to support is NOT
included.
Art. 563. Usufruct is constituted by law, by
the will of private persons expressed in
acts inter vivos or in a last will and
testament, and by prescription.
CREATION OF USUFRUCT:
1. by law
2. by agreement expressed in acts
inter vivos
3. in a last will
4. by prescription
CLASSES OF USUFRUCT AS TO THEIR
CREATION:
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PROPERTY REVIEWER
1. Legal usufruct - one created by law such
as the usufruct of parents over the
properties of their children under Article 32
of the New Civil Code which is now
ABOLISHED by Article 226 of the Family
Code.
2. Conventional usufruct - those created by
the will of the parties
a. those expressed in acts inter vivos, such
as by the contract which are effective
during the lifetime of the owner of the
property
b. those expressed in a last will which are
effective after the death of the testator
(mortis causa)
3. Mixed usufruct - one PARTLY created by
law and partly created by will of the parties
4. Prescriptive usufruct - acquired by third
person through continuous use of the
usufruct for the period required by law
Art. 564. Usufruct may be constituted on
the whole or a part of the fruits of the
thing, in favor of one more persons,
simultaneously or successively, and in
every case from or to a certain day, purely
or conditionally. It may also be constituted
on a right, provided it is not strictly
personal or intransmissible.
What are the kinds of usufruct?
1. As to the extent of object:
a. total
b. partial
2. As to the number of beneficiaries:
a. simple - one usufructuary
b. multiple - several usufructuaries which
may be:
b1. simultaneous - at the same time
b2. successive - one after the other
3. As to effectivity or extinguishment:
a. pure - no condition
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b. with a term - there is a period either
resolutory or suspensive
b1. ex die - for a specific day
b2. in diem - up to a specific day
b3. ex diem in diem - from a specific day up
to a specific day
c. conditional - there is a condition either
resolutory or suspensive
4. As to subject matter:
a. over things - involves tangible property
b. over rights - involves intangible property
5. As to its extent:
a. universal - constituted over the entire
patrimony of the owner
b. particular - constituted only on individual
things
6. As to the preservation of the substance
and form of the object
a. normal usufruct - involves non-
consumable things which have to be
returned and hence, the need for
preservation of its substance and form
b. abnormal usufruct - involves
consummable things like wine and cigars.
They cannot be enjoyed without being
consumed.
Can the right to receive support be a
subject matter of usufruct?
No, because the rights must not be strictly
personal or intransmissible to be the
subject of usufruct
*There is no limitation on the number of
usufructuaries as long as all of them are
alive at the time of the constitution of the
usufruct.
Art. 565. The rights and obligations of the
usufructuary shall be those provided in the
title constituting the usufruct; in default of
such title, or in case it is deficient, the
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PROPERTY REVIEWER
provisions contained in the two following
Chapters shall be observed.
*Title primarily determines the rights and
obligations of the usufructuary
In case of conflict between provisions of
the Civil code and those provided in the
will, which shall prevail?
The one provided in the will. Why? Intent of
the parties.
CHAPTER 2
RIGHTS OF THE USUFRUCTUARY
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 land or tenement, he shall be
considered a stranger.
WHAT ARE THE RIGHTS OF A
USUFRUCTUARY TO THE THINGS AND ITS
FRUITS?(RISER)
a. to receive the fruits of the property in
usufruct and half of the hidden treasure he
accidentally find on the property
b. to enjoy an increase which the thing in
usufrcut may acquire through accession
c. to personally enjoy the thing or lease it to
another
d. to make on the property such
improvements, expenses he may deem
proper and to remove the improvements
provided there is no damage caused to the
property
e. to set-off the improvements he may have
made on the property against any damage
to the same
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f. to retain the thing until he is reimburse
from the advances for extraordinary
expenses and taxes of the capital
*Usufructuary right not exempted from
execution
*If a hidden treasure is found on the land,
the usufrcuary is a stranger to it. The reason
for is that hidden treasure is not a fruit to
which the usufructuary is automatically
entitled.
What are the rights of the usufructuary as
to the usufruct itself?
a. to alienated or mortgage the right of
usufruct
b. in a usufrcut to recover property or real
right, to bring the action and to oblige the
owner thereof to give him the proper
authority and the necessary proof
c. in a usufruct of part of a common
property, to exercise all the rights
pertaining to the co-owner with respect to
to the administration and collection of fruits
or interests
Art. 567. Natural or industrial fruits
growing at the time the usufruct begins,
belong to the usufructuary.
Those growing at the time the usufruct
terminates, belong to the owner.
In the preceding cases, the usufructuary, at
the beginning of the usufruct, has no
obligation to refund to the owner any
expenses incurred; but the owner shall be
obliged to reimburse at the termination of
the usufruct, from the proceeds of the
growing fruits, the ordinary expenses of
cultivation, for seed, and other similar
expenses incurred by the usufructuary.
The provisions of this article shall not
prejudice the rights of third persons,
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PROPERTY REVIEWER
acquired either at the beginning or at the
termination of the usufruct.
What are the rights of the usufructuary as
to the advances and damages?
a. to be reimbursed for indispensable
extraordinary repairs made by him in an
amount equal to increase in value
b. to be reimbursed for taxes on the capital
advanced by him
c. to be indemnified for damages caused by
him by the naked owner
What are the rights of a usufructuary to
pending natural and industrial fruits?
1. Fruits growing at the beginning of
usufruct belong to the USUFRUCTUARY who
is not bound to refund to the owner the
expenses of cultivation and production
2. Fruits growing up to the termination of
usufruct belong to the OWNER but he is
bound to reimburse to the usufructuary of
the ordinary cultivation expenses
What are ordinary expenses that are
needed to be reimbursed by the owner?
expenses on cultivation, seeds and other
similar expenses
*The right of innocent third persons shall
NOT be prejudiced. If a third person has a
right over the fruits, it must be respected.
What if the expenses exceeds the proceeds
of the growing fruits?
The owner has no obligation to reimburse
the difference
Art. 568. If the usufructuary has leased the
lands or tenements given in usufruct, and
the usufruct should expire before the
termination of the lease, he or his heirs
and successors shall receive only the
proportionate share of the rent that must
be paid by the lessee.
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Art. 569. Civil fruits are deemed to accrue
daily, and belong to the usufructuary in
proportion to the time the usufruct may
last.
*Usufructuary may LEASE the property. He
also has the right to choose the tenant and
the right to eject the tenant, if it violates
the lease contract
GENERAL RULE: If the period of lease is
longer than the period of usufruct, lease
will terminate upon termination of usufruct
EXCEPTION: the naked owner respected the
lease
*With respect to rents, the usufructuary
will receive only in the amount equivalent
to the period of usufruct, beyond that, to
the naked owner
Art. 570. Whenever a usufruct is
constituted on the right to receive a rent or
periodical pension, whether in money or in
fruits, or in the interest on bonds or
securities payable to bearer, each payment
due shall be considered as the proceeds or
fruits of such right.
Whenever it consists in the enjoyment of
benefits accruing from a participation in
any industrial or commercial enterprise,
the date of the distribution of which is not
fixed, such benefits shall have the same
character.
In either case they shall be distributed as
civil fruits, and shall be applied in the
manner prescribed in the preceding article.
Usufruct on right to receive rent or
periodical pension:
When a usufruct is constituted on the
owner's right to receive rent or periodical
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PROPERTY REVIEWER
pension each payment shall be considered
as the proceeds or the fruits of such right.
This is applicable to money, fruits, interest
on bonds and securities
Art. 571. The usufructuary shall have the
right to enjoy any increase which the thing
in usufruct may acquire through accession,
the servitudes established in its favor, and,
in general, all the benefits inherent
therein.
GENERAL RULE: The usufructuary shall
enjoy all the benefits inherent in a property
given in usufruct
EXCEPTION: Contrary agreement
Art. 572. The usufructuary may personally
enjoy the thing in usufruct, lease it to
another, or alienate his right of usufruct,
even by a gratuitous title; but all the
contracts he may enter into as such
usufructuary shall terminate upon the
expiration of the usufruct, saving leases of
rural lands, which shall be considered as
subsisting during the agricultural year.
LIMITATIONS OF USUFRUCTUARY RIGHTS:
1. he cannot sell, pledge or mortgage the
thing or property itself, because he is not
the owner thereof
2. he cannot sell FUTURE CROPS, for
growing crops at the termination of the
usufruct belong to the owner
3. he cannot lease the thing longer than the
term of usufruct UNLESS consented by the
naked owner
Art. 573. Whenever the usufruct includes
things which, without being consumed,
gradually deteriorate through wear and
tear, the usufructuary shall have the right
to make use thereof in accordance with
the purpose for which they are intended,
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and shall not be obliged to return them at
the termination of the usufruct except in
their condition at that time; but he shall be
obliged to indemnify the owner for any
deterioration they may have suffered by
reason of his fraud or negligence.
GENERAL RULE: If the period of lease is
longer than the period of usufruct, lease
will terminate upon termination of usufruct
EXCEPTION: the naked owner respected the
lease
*If usufruct includes NON-CONSUMMABLE
but deteriorates due to ordinary wear and
tear, use it for the purpose to which it is
intended and return at the end of the
usufruct (in its condition at the time)
*If detoriation is due to fraud or negligence,
usufructuary is liable
Art. 574. Whenever the usufruct includes
things which cannot be used without being
consumed, the usufructuary shall have the
right to make use of them under the
obligation of paying their appraised value
at the termination of the usufruct, if they
were appraised when delivered. In case
they were not appraised, he shall have the
right to return at the same quantity and
quality, or pay their current price at the
time the usufruct ceases.
What are the rights and obligations of the
usufructuary with respect to consummable
things?
The usufructuary shall have the right to
make use of the consummable thing. At the
termination of the usufruct, he must:
1. pay its appraised value
2. if no appraisal:
a. return the same quantity and quality
b. pay its current price at such termination
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PROPERTY REVIEWER
*Quasi-usufruct is akin to mutuum or
simple loan
What if the damages exceed the value of
improvements?
The usufrctuary is liable for the difference
for indemnity
Art. 575. The usufructuary of fruit-bearing
trees and shrubs may make use of the
dead trunks, and even of those cut off or
uprooted by accident, under the obligation
to replace them with new plants.
*Usufructuary is not allowed to cut off trees
because of his obligation to preserve them.
However, if the purpose of the usufruct as
appearing in the title establishing the
usufruct, is precisely to make use of the
branches and trunks of the trees for special
purposes like their conversion into selected
lumber for use in the making of quality
furniture then he may cut them off subject
to the obligation of replacing thme with
young trees or new plants.
Shrubs - woody perrenial plants smaller
than trees usually having permanent stems
branching from or near the ground
Art. 576. If in consequence of a calamity or
extraordinary event, the trees or shrubs
shall have disappeared in such
considerable number that it would not be
possible or it would be too burdensome to
replace them, the usufructuary may leave
the dead, fallen or uprooted trunks at the
disposal of the owner, and demand that
the latter remove them and clear the land.
*If the act of replacement is ONLY slightly
burdensome the usufructuary is OBLIGED to
make replacement
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Art. 577. The usufructuary of woodland
may enjoy all the benefits which it may
produce according to its nature.
If the woodland is a copse or consists of
timber for building, the usufructuary may
do such ordinary cutting or felling as the
owner was in the habit of doing, and in
default of this, he may do so in accordance
with the custom of the place, as to the
manner, amount and season.
In any case the felling or cutting of trees
shall be made in such manner as not to
prejudice the preservation of the land.
In nurseries, the usufructuary may make
the necessary thinnings in order that the
remaining trees may properly grow.
With the exception of the provisions of the
preceding paragraphs, the usufructuary
cannot cut down trees unless it be to
restore or improve some of the things in
usufruct, and in such case shall first inform
the owner of the necessity for the work.
*This provision is inoperative since it is
impractical in the Philippines.
Art. 578. The usufructuary of an action to
recover real property or a real right, or any
movable property, has the right to bring
the action and to oblige the owner thereof
to give him the authority for this purpose
and to furnish him whatever proof he may
have. If in consequence of the
enforcement of the action he acquires the
thing claimed, the usufruct shall be limited
to the fruits, the dominion remaining with
the owner.
What is the effectof favorable judgment?
If the usufructuary recovered the property,
he does not become the owner thereof. The
naked ownership still belongs to the owner.
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PROPERTY REVIEWER
He regains only his usufruct over the
property.
*Another impractical provision
Art. 579. The usufructuary may make on
the property held in usufruct such useful
improvements or expenses for mere
pleasure as he may deem proper, provided
he does not alter its form or substance; but
he shall have no right to be indemnified
therefor. He may, however, remove such
improvements, should it be possible to do
so without damage to the property.
*The usufructuary, if he so desires, may
introduce useful or luxurious improvements
as he may deem proper on the property in
usufruct. However, he is PROHIBITED from
altering the form and substance of the
property. Thus, a usufrctuary cannot
convert a fishpond into a swimming pool.
The form and substance will be altered.
Is the usufructuary entitled to indemnity for
the expenses he had incurred in the making
of their improvements?
GENERAL RULE: No.
EXCEPTION:| He may remove the
improvements, even against the will of the
owner, if no damage would be caused to
the property in usufruct.
Can a usufruct be compelled to remove the
improvements?
No. It is discretionary on the part of the
usufructuary.
In case it cannot be removed with damage,
is the usufructuary entitled to refund?
No. He may set-off the value of the
improvements against the amount of the
damage he had caused the property.
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Art. 580. The usufructuary may set off the
improvements he may have made on the
property against any damage to the same.
*Set-off has the effect of compensation
How is set-off done?
The usufructuary must inform the owner of
the desire for set-off and prove that the
improvements are of greater value than the
damage.
What if the the value of the improvements
is greater than the damage (cannot be
removed without injury)?
The excess will not be refunded to the
usufructuary in the absence of contrary
stipulation for that, in effect, will be
entitling the usufructuary with refund in
cash which is not authorized.
What is the rule if it could be removed
without damage?
By agreement, settle the difference
Art. 581. The owner of property the
usufruct of which is held by another, may
alienate it, but he cannot alter its form or
substance, or do anything thereon which
may be prejudicial to the usufructuary.
*Naked owner is NOT precluded from
alienating the usufruct of the property
RESTRICTIONS: he cannot alter or change
the form or substance of the property or do
anything which will prejudice of the
usufructuary.
Art. 582. The usufructuary of a part of a
thing held in common shall exercise all the
rights pertaining to the owner thereof with
respect to the administration and the
collection of fruits or interest. Should the
co-ownership cease by reason of the
division of the thing held in common, the
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PROPERTY REVIEWER
usufruct of the part allotted to the co-
owner shall belong to the usufructuary.
Usufructuary assumes rights of co-owner
with respect to:
a. administration of the property
b. collection of fruits and interests
*No authority to sell or alienate any real
right over the undivided property,for such
exercise is an act of ownership unless
authorized by the co-owner concerned. The
ownership of the portion involved is not
transferred to the usufructuary.
*Upon partition of the property, usufruct
continues on the part of the property which
was alloted to the co-owner who
constituted the usufruct.
CHAPTER 3
OBLIGATIONS OF THE USUFRUCTUARY
Art. 583. The usufructuary, before entering
upon the enjoyment of the property, is
obliged:
(1) To make, after notice to the
owner or his legitimate
representative, an inventory of all
the property, which shall contain an
appraisal of the movables and a
description of the condition of the
immovables;
(2) To give security, binding himself
to fulfill the obligations imposed
upon him in accordance with this
Chapter.
What are the usufructuary's obligations?
1. Make an inventory of all the property
containing the appraised value, descriptions
of their condition
2. Give security as an assurance that he will
fulfill his obligations as usufructuary
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*The conditions are not necessary for the
commencement of the right of the
usufrcutuary. However, it shall be done
before the usufrctuary enters upon the
possession and enjoyment of a property
To whom shall expenses for the
preparation of inventory be borne?
Usufructuary, he is the one obliged to make
an accounting.
What may be the forms of a security?
It may be a pledge, mortgage of a property,
personal or surety bond, cash money.
What is the purpose of giving security?
To insure faithful compliance
What are the situations where giving of
security is not required?
1. Express stipulation
2. Waiver by naked owner
3. Nobody will be injured by lack of security
4. Donor has reserved this obligation to
himself. It is an act of ingratitude for the
donee to require the donor to put up a
security bond.
Art. 584. The provisions of No. 2 of the
preceding article shall not apply to the
donor who has reserved the usufruct of
the property donated, or to the parents
who are usufructuaries of their children's
property, except when the parents
contract a second marriage.
Aticle 226 of the Family Code, the parents
will exercise joint legal guardianship over
the property of their minor childrent
WITHOUT need of court appointment. And
they are required to put a bond if the value
of the propery or annual income exceeds
P50,000.00. The bond may be in such
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PROPERTY REVIEWER
amount as court may determine,but not
less than 10% of the value of the property
or income to guarantee preforamnce of the
duties prescribed for general guardians
Art. 585. The usufructuary, whatever may
be the title of the usufruct, may be
excused from the obligation of making an
inventory or of giving security, when no
one will be injured thereby.
Obligation to make an inventory and to give
security is excused when no one will be
adversely affected.
Example: Usufruct over a periodical pension
Art. 586. Should the usufructuary fail to
give security in the cases in which he is
bound to give it, the owner may demand
that the immovables be placed under
administration, that the movables be sold,
that the public bonds, instruments of
credit payable to order or to bearer be
converted into registered certificates or
deposited in a bank or public institution,
and that the capital or sums in cash and
the proceeds of the sale of the movable
property be invested in safe securities.
The interest on the proceeds of the sale of
the movables and that on public securities
and bonds, and the proceeds of the
property placed under administration,
shall belong to the usufructuary.
Furthermore, the owner may, if he so
prefers, until the usufructuary gives
security or is excused from so doing, retain
in his possession the property in usufruct
as administrator, subject to the obligation
to deliver to the usufructuary the net
proceeds thereof, after deducting the sums
which may be agreed upon or judicially
allowed him for such administration.
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CONSEQUENCES OF FAILURE TO GIVE
SECURITY WHEN REQUIRED:
NAKED OWNER MAY:
1. demand that immovables be placed
under his administration
2. demand that movables be sold; public
bonds, instruments be converted into
registered certificates or deposited in the
bank or public institution, and that capital
or sums in cash and the proceeds of the
movable propery be invested in securities.
3. retain the property if he so desires
USUFRUCTUARY MAY:
3. The usufructuary is entitled to interests
on the proceeds of the sale of movables
and on proceeds of the property placed
under the management of the naked owner
4. Usufructuary cannot enter into
possession of the property
5. Usufructuary cannot collect credits that
had matured
7. Usufruct is NOT extinguished by failure to
give securitry
Art. 587. If the usufructuary who has not
given security claims, by virtue of a
promise under oath, the delivery of the
furniture necessary for his use, and that he
and his family be allowed to live in a house
included in the usufruct, the court may
grant this petition, after due consideration
of the facts of the case.
The same rule shall be observed with
respect to implements, tools and other
movable property necessary for an
industry or vocation in which he is
engaged.
If the owner does not wish that certain
articles be sold because of their artistic
worth or because they have a sentimental
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value, he may demand their delivery to
him upon his giving security for the
payment of the legal interest on their
appraised value.
What is a promise under oath or causion
juratoria?
It is a sworn undertaking by the
usufructuary to TAKE GOOD CARE of the
property iun usufruct and to return it at the
termination of the usfruct. It is based on
necessity and resorted to when the
usufructuary is poor and cannot afford to
give the required security.
When is judicial intervention required?
When the usufructuary has not been
excused by the naked owner. He has to file
a petition to court seeking the delivery of
the property including the accessories if
any, which are necessary for its normal
enjoyment, or even tolls and implements
needed by the usufructuary in his industry
or work.
What if the property has artistic or
sentimental value?
The owner has the discretion to sell it or
not. If not, he may demand their delivery to
him, sunject to his giving a security or bond
for payment of the legal interest based on
their appraised value.
Art. 588. After the security has been given
by the usufructuary, he shall have a right
to all the proceeds and benefits from the
day on which, in accordance with the title
constituting the usufruct, he should have
commenced to receive them.
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What is the effect of giving the security?
The usufructuary shall have a right to all
proceeds and benefits as of the date he is
was supposed to have received them. It
retroacts to the day when the usufructuary
should have commenced receiving them.
Art. 589. The usufructuary shall take care
of the things given in usufruct as a good
father of a family.
Art. 590. A usufructuary who alienates or
leases his right of usufruct shall answer for
any damage which the things in usufruct
may suffer through the fault or negligence
of the person who substitutes him.
How is diligence of a good father of a
family exercised?
1. By making ordinary repairs for
preservation
2. By notifying the owner of the
urgency of extraordinary repairs
3. By being cautious in the person to
whom he would lease, alienate or
sub-usufruct his usufructuary rights
Art. 591. If the usufruct be constituted on a
flock or herd of livestock, the usufructuary
shall be obliged to replace with the young
thereof the animals that die each year
from natural causes, or are lost due to the
rapacity of beasts of prey.
If the animals on which the usufruct is
constituted should all perish, without the
fault of the usufructuary, on account of
some contagious disease or any other
uncommon event, the usufructuary shall
fulfill his obligation by delivering to the
owner the remains which may have been
saved from the misfortune.
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Should the herd or flock perish in part, also
by accident and without the fault of the
usufructuary, the usufruct shall continue
on the part saved.
Should the usufruct be on sterile animals,
it shall be considered, with respect to its
effects, as though constituted on fungible
things.
*Judge Quiambao made a reminder to
study it for the sake of multiple choice
Herd – number of animals kept, feeding, ot
travelling together
Livestock – mammalian animals
Poultry – avian animals which are
domesticated and kept or raised in
backyards or farms
*The usufruct on a flock or herd
presupposes the presence of a big number
of animals
*There shall only be an obligation to replace
dead animals if only SOME of it died.
USUFRUCTUARY’S OBLIGATION TO
REPLACEMENT IF CAUSES ARE:
1. Natural
2. Due to rapacity of beasts of prey
The replacement shall consist the young of
these animals. In case there are more
young animals than those to be replaced,
the excess will pertain to the usufructuary.
*No obligation if all animals died due to
cases such as:
1. Contagious disease
2. Uncommon event without the fault of
the usufructuary
The latter must deliver the remains
(carcasses) which had been saved, to the
naked owner.
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*If by reason of accident and without the
fault of the usufructuary, some animals
died, the usufruct shall continue on the
surviving animals
USUFRUCT OVER STERILE ANIMALS =
USUFRUCT OVER FUNGIBLE THINGS
Art. 592. The usufructuary is obliged to
make the ordinary repairs needed by the
thing given in usufruct.
By ordinary repairs are understood such as
are required by the wear and tear due to
the natural use of the thing and are
indispensable for its preservation. Should
the usufructuary fail to make them after
demand by the owner, the latter may
make them at the expense of the
usufructuary.
Art. 593. Extraordinary repairs shall be at
the expense of the owner. The
usufructuary is obliged to notify the owner
when the need for such repairs is urgent.
What is the meaning of ordinary repairs?
These are repairs needed due to the wear
and tear suffered by the property through
the natural use thereof and are
indispensable for its preservation.
What if usufructuary denies to make
repairs?
The naked owner can make the repairs
subject to reimbursement from the
usufructuary.
Up to what extent is the liability of the
usufructuary?
Only the ordinary repairs needed DURING
the existence of the usufruct.
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PROPERTY REVIEWER
What is meant by extraordinary repairs?
These are repairs needed to restore to its
good condition a thing or property which
has deteriorated by reason of exceptional
circumstances.
How about extraordinary repairs?
It shall be done at the expense of the owner
after the usufructuary notifies the owner of
the needed repairs when it is urgent. NOTE:
No need of notification if not urgent.
Art. 594. If the owner should make the
extraordinary repairs, he shall have a right
to demand of the usufructuary the legal
interest on the amount expended for the
time that the usufruct lasts.
Should he not make them when they are
indispensable for the preservation of the
thing, the usufructuary may make them;
but he shall have a right to demand of the
owner, at the termination of the usufruct,
the increase in value which the immovable
may have acquired by reason of the
repairs.
What is the right of the naked owner when
he makes extraordinary repairs?
The naked owner can charge the
usufructuary for legal interest on the
amount spent, until the usufruct expires.
Legal interest would be 6% per annum.
What is the right if the usufructuary paid
for the extraordinary expenses?
He may demand from the owner the
resulting increase in the value of the
property by reason of the repairs done.
It may be determined by a comparison of
the past and present value.
Art. 595. The owner may construct any
works and make any improvements of
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which the immovable in usufruct is
susceptible, or make new plantings
thereon if it be rural, provided that such
acts do not cause a diminution in the value
of the usufruct or prejudice the right of the
usufructuary.
*applies only to immovable properties
What are the restrictions as to the right of
theo owner in making constructions or
new plantings?
The value of the property shall not diminish
and the rights of the usufructuary shall not
be prejudiced.
Art. 596. The payment of annual charges
and taxes and of those considered as a lien
on the fruits, shall be at the expense of the
usufructuary for all the time that the
usufruct lasts.
*The usufructuary shall be liable for the
annual charges and taxes on the fruits
during the duration o f the usufruct.
*Real property tax shall be paid by the
owner.
Art. 597. The taxes which, during the
usufruct, may be imposed directly on the
capital, shall be at the expense of the
owner.
If the latter has paid them, the
usufructuary shall pay him the proper
interest on the sums which may have been
paid in that character; and, if the said sums
have been advanced by the usufructuary,
he shall recover the amount thereof at the
termination of the usufruct.
*Since the property and its fruits are being
enjoyed by the usufrcutuary, the law directs
him to contribute in the form of legal
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interest on the taxes paid by the owner,
UNLESS there is a contrary stipulation.,
What if the usufructuary advanced the
payment, when is he entitled to
reimbursement?
General Rule: Reimbursement without
interest at the time of the termination of
the usufruct.
Exception: if payment was done by the
immediate deduction of the amount of the
tax against the share of the usufructuary on
the fruits, reimbursement shall be made
IMMEDIATELY.
Art. 598. If the usufruct be constituted on
the whole of a patrimony, and if at the
time of its constitution the owner has
debts, the provisions of Articles 758 and
759 relating to donations shall be applied,
both with respect to the maintenance of
the usufruct and to the obligation of the
usufructuary to pay such debts.
The same rule shall be applied in case the
owner is obliged, at the time the usufruct
is constituted, to make periodical
payments, even if there should be no
known capital.
What are the rules when the usufruct
comprehends the whole of a patrimony of
thw naked owner and the latter has
indebtedness?
1. If there is an agreement that the
usufructuary will pay, he is bound by
the prestation. However, if there is
no amount fixed, it cannot exceed
the value of the usufruct.
2. If there is no agreement to pay for
the obligation, the usufructuary shall
only be liable to pay for it if the
usufruct was done in fraud of
creditors.
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What is meant by “in fraud of creditors?”
This is the presumption when during the
time of the execution of the usufruct, the
owner did not reserve sufficient property
with which to pay his debts.
*The usufructuary may be liable for
damages when proven to be acting in bad
faith.
Art. 599. The usufructuary may claim any
matured credits which form a part of the
usufruct if he has given or gives the proper
security. If he has been excused from
giving security or has been able to give it,
or if that given is not sufficient, he shall
need the authorization of the owner, or of
the court in default thereof, to collect such
credits.
The usufructuary who has given security
may use the capital he has collected in any
manner he may deem proper. The
usufructuary who has not given security
shall invest the said capital at interest
upon agreement with the owner; in
default of such agreement, with judicial
authorization; and, in every case, with
security sufficient to preserve the integrity
of the capital in usufruct.
When is a usufructuary allowed to collect
demandable credits like rental dues?
If he gave proper security or bond. If not, he
needs either authorization from the owner
or in default thereof, a judicial authorization
*The credit collected pertains to the owner
but subject to the use of the usufructuary
*The security required must be in all cases
sufficient to preserve the integrity of the
capital in usufruct
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Art. 600. The usufructuary of a mortgaged
immovable shall not be obliged to pay the
debt for the security of which the
mortgage was constituted.
Should the immovable be attached or sold
judicially for the payment of the debt, the
owner shall be liable to the usufructuary
for whatever the latter may lose by reason
thereof.
Is the usufructuary obliged to pay the
mortgage obligations of the naked owner?
No. In fact, if it be levied or attached in a
public auction, the naked owner shall pay
damages to the usufructuary.
How may a naked owner be excused from
liability?
If he can able to give a substitute usufruct
over another equivalent property or if he is
able to pay an amount in settlement of the
loss suffered by the usufructuary or by
another satisfactory means of settlement.
Can a usufruct be mortgaged?
Yes. The responsibility is upon the
usufructuary who mortgaged it.
Art. 601. The usufructuary shall be obliged
to notify the owner of any act of a third
person, of which he may have knowledge,
that may be prejudicial to the rights of
ownership, and he shall be liable should he
not do so, for damages, as if they had been
caused through his own fault.
*The usufructuary has a DUTY to notify the
naked owner if there is any prejudicial act
done by third person adversely affecting the
ownership of the naked owner.
Failure to do so would be tantamount to
the usufructuary himself having the done
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the damages, in case any have been
incurred.
Art. 602. The expenses, costs and liabilities
in suits brought with regard to the usufruct
shall be borne by the usufructuary.
*It is the usufructuary’s responsibility to
pay expenses, costs and liabilities in suits
because he is the one affected by it.
CHAPTER 4
EXTINGUISHMENT OF USUFRUCT
Art. 603. Usufruct is extinguished:
(1) By the death of the
usufructuary, unless a contrary
intention clearly appears;
(2) By the expiration of the period
for which it was constituted, or by
the fulfillment of any resolutory
condition provided in the title
creating the usufruct;
(3) By merger of the usufruct and
ownership in the same person;
(4) By renunciation of the
usufructuary;
(5) By the total loss of the thing in
usufruct;
(6) By the termination of the right
of the person constituting the
usufruct;
(7) By prescription.
CAUSES FOR EXTINGUISHMENT OF
USUFRUCT:
1. General Rule: death of the
usufructuary
Exception: clear agreement to
continue despite death
Usufruct in favour of several
persons, it shall be extinguished only
upon the death of the last survivor
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*It is the death of the usufructuary NOT the
owner since his heirs shall respect the
usufruct despite death of owner.
2. Expiration of the period – only
applicable to resolutory conditions
3. Merger – naked owner and usufruct
concur in the same person
4. Renunciation – if usufructuary
waives or renounces his right, may
be done implicitly or explithcitly.
This does not need the consent of
the owner and no formalities are
needed
How may a waiver be valid?
Requisites:
a. Waiving party must have the right
he is waiving
b. He must have full capacity to make
the waiver
c. Must be clear and unequivocal
d. Must NOT be contrary to law, public
order, public policy, morals or good
customs or prejudicial to a third
person with a right recognized by
law
5. Total loss of the thing
Loss – includes the physical destruction
of the thing; its rendition outside the
commerce of man; total abandonment;
recovery is impossible; expropriation by
authorities
*If the usufructuary assumed the
liability for the loss, he shall pay
damages.
6. Termination of right of the person
constituting the usufruct – one
reason may be that the naked
owner is not the real owner which
follows that the real owner evicted
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the owner terminating the usufruct
as well
*The usufructuary cannot have a better
right or right higher than that of the
source
7. Prescription – if a third person
acquired the usufruct by continuous
use, the usufruct ceases. If what the
person has acquired is the
ownership, it is also terminated.
*Mere non-use does not terminate the
usufruct, unless it is tantamount to
renunciation
OTHER CAUSES OF TERMINATION:
1. Annulment of title
2. Expropriation
3. Mutual withdrawal by parties
4. Legal causes
5. Abandonment of juridical entity
Art. 604. If the thing given in usufruct
should be lost only in part, the right shall
continue on the remaining part.
*The partial loss of the thing does not affect
the rights of the usufructuary
Art. 605. Usufruct cannot be constituted in
favor of a town, corporation, or
association for more than fifty years. If it
has been constituted, and before the
expiration of such period the town is
abandoned, or the corporation or
association is dissolved, the usufruct shall
be extinguished by reason thereof.
What is the reason for not allowing
usufructuary beyond 50 years?
Since a usufruct is meant only a lifetime
grant. Unlike a natural person, a
corporation or association’s lifetime may be
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extended indefinitely. A need for imposing
a limitation should therefore be proper.
*article is inapplicable to testamentary trust
Art. 606. A usufruct granted for the time
that may elapse before a third person
attains a certain age, shall subsist for the
number of years specified, even if the third
person should die before the period
expires, unless such usufruct has been
expressly granted only in consideration of
the existence of such person.
Example:
“A”, the owner of a building with income,
constituted a usufruct in favour of “B”, until
“C”, the granddaughter of “A”, who is 10
years old shall have become of legal age.
The usufruct will be for a period of 8 years.
If “C” would die before becoming 18, the
usufruct will continue until the complete
period of 8 years shall have elapsed.
EXCEPTION: If the usufruct had been
constituted only in CONSIDERATION of the
survival or existence of the third person the
usufruct terminates upon the death of the
said person. Thus, if the usufruct was
created in favour of “B” only for “B” to
support “C”, upon the death of the latter,
the usufruct is extinguished.
Art. 607. If the usufruct is constituted on
immovable property of which a building
forms part, and the latter should be
destroyed in any manner whatsoever, the
usufructuary shall have a right to make use
of the land and the materials.
The same rule shall be applied if the
usufruct is constituted on a building only
and the same should be destroyed. But in
such a case, if the owner should wish to
construct another building, he shall have a
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right to occupy the land and to make use
of the materials, being obliged to pay to
the usufructuary, during the continuance
of the usufruct, the interest upon the sum
equivalent to the value of the land and of
the materials.
USUFRUCT IS CONSTITUTED ON
IMMOVABLE PROPERTY OF WHICH A
BUILDING FORMS PART AND LATTER BE
DESTROYED:
1. Usufruct is both over land and
building
- Usufruct on land continues
because land is not loss, but on
building loss (assumption of total
loss)
- Usufructuary can use the land
and materials saved from the
building
- If owner wants to rebuild the
building, but usufructuary
refuses, the latter prevails
because he has the usufruct over
the land until the period expires
2. Usufruct is building only
- Usufruct on building
extinguished (totally destroyed)
- Usufructuary can make use of
the materials saved
- Owner has preferential right to
use the land and the materials
with obligation to pay the
usufructuary during the
continuance of the usufructuary,
the interest upon the sum
equivalent to the value of the
land and materials
*right to construct new building is given to
the owner
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What if the owner does not construct a
new building and period of usufruct have
not yet expired?
Interest on sum of value of building remains
of ruin and the land will be given a right to
usufruct
Destruction by naked owner: he is liable
Fault of usufructuary: amount of building +
damages, it may including moral and
exemplary
*In case money is awarded, like a war
damage payment, and it is not used for the
establishment of a new building, the
usufructuary is entitled to 6% legal interest
of the payment from the time payment was
received until the death of the said
usufructuary
Art. 608. If the usufructuary shares with
the owner the insurance of the tenement
given in usufruct, the former shall, in case
of loss, continue in the enjoyment of the
new building, should one be constructed,
or shall receive the interest on the
insurance indemnity if the owner does not
wish to rebuild.
Should the usufructuary have refused to
contribute to the insurance, the owner
insuring the tenement alone, the latter
shall receive the full amount of the
insurance indemnity in case of loss, saving
always the right granted to the
usufructuary in the preceding article.
SHARING IN THE INSURANCE EXPENSES:
- 50/50
- If both pays, usufructuary will be
given the right to enjoy the new
building if one is reconstructed,
or to receive interest on the
insurance indemnity
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- Naked owner: if usufructuary
refused to share in insurance
expenses and the owner spent
alone; the owner alone is
entitled to indemnity in case of
loss of building
BASIS OF SHARING: proportional bases on
insurable interest; extent of prejudicial
damage by loss or injury of property
OWNER: extent of injury/ damage if
building is destroyed
USUFRUCTUARY: fruits, harvest; if rented –
based on rentals
The interest of the insurance proceeds to
which the usufructuary is entitled should
likewise be based on insurable interest
*Usufructuary can enjoy without the
obligation to pay for the excess spent
*If naked owner spent larger amount than
insurance proceeds, cannot recover interest
from usufructuary for use of tenement
Art. 609. Should the thing in usufruct be
expropriated for public use, the owner
shall be obliged either to replace it with
another thing of the same value and of
similar conditions, or to pay the
usufructuary the legal interest on the
amount of the indemnity for the whole
period of the usufruct. If the owner
chooses the latter alternative, he shall give
security for the payment of the interest.
What are the obligations of the naked
owner if the thing in usufruct be
expropriated?
1. Replace the thing expropriated with
another of the same value or similar
conditions
2. Pay the usufructuary legal interest
on the amount of indemnity for the
whole period of the usufruct, and
not just for the unexpired period
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*If the owner does not comply in whole, he
must put up a bond or security
Art. 610. A usufruct is not extinguished by
bad use of the thing in usufruct; but if the
abuse should cause considerable injury to
the owner, the latter may demand that the
thing be delivered to him, binding himself
to pay annually to the usufructuary the net
proceeds of the same, after deducting the
expenses and the compensation which
may be allowed him for its administration.
REMEDY IN CASE ABUSES OF
USUFRUCTUARY CAUSING CONSIDERABLE
INJURY TO OWNER:
-If due to the abuses of the usufructuary on
the property, the usufructuary on the
property in usufruct, the owner suffers
considerable damages or injuries, he may
compel the usufructuary to deliver the thing
to him to be able to maintain it and protect
it from destruction or loss
-If usufructuary denies the owner’s claim of
considerable injury, court shall determine
the issue based on preponderance of
evidence
BAD USE OF PROPERTY BY
USUFRUCTUARY:
-not a ground for extinguishment
- BUT gives the owner the right to demand
the delivery and administration of property
in usufruct when abuse is considerably
prejudicial to the owner
1. injure the thing itself
2. bad use will injure rights of naked owner
*The owner cannot alienate right to
usufruct while property is under
administration
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PROPERTY REVIEWER

- during administration, the naked owner is 1. He may retain property if:

not authorized to sell, encumber or a. He had advance payment of
mortagae the property held in usufruct taxes on capital
- it is advisable that the usufructuary shall b. He had incurred expenses for
register his usufructuary rightrs with the extraordinary repairs
proper Registry of Property, it shall warn 2. Right to remove improvements
third persons provide no damage shall be incurred
- any third person who deals on the 3. If he caused damage, and value not
property is bound to respect it settled, he may set off the
improvements against the damage.
Art. 611. A usufruct constituted in favor of 4. After delivery of the object in
several persons living at the time of its usufruct, the security must be
constitution shall not be extinguished until cancelled
death of the last survivor.
CONSTITUTION OF USUFRUCT IN FAVOR
OF SEVERAL PERSONS:
-Usufruct to several persons simultaneously
or successively, death of one of them does
not necessarily extinguish the usufructuary
because usufruct shall subsist with respect
to surviving usufructuaries
- death of last survivor will terminate unless
contrary intention appears

Art. 612. Upon the termination of the

usufruct, the thing in usufruct shall be
delivered to the owner, without prejudice
to the right of retention pertaining to the
usufructuary or his heirs for taxes and
extraordinary expenses which should be
reimbursed. After the delivery has been
made, the security or mortgage shall be
cancelled.
OBLIGATIONS AND RIGHTS OF
USUFRUCTUARY UPON TERMINATION OF
THE USUFRUCT:
OBLIGATIONS:
1. Upon the termination of the
usufruct, the usufructuary shall
return the thing to the owner
2. He shall pay for damages suffered by
the property due to his own fault
RIGHTS:

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 87
Title VII. - EASEMENTS OF SERVITUDES
CHAPTER 1
EASEMENTS IN GENERAL
SECTION 1. - Different Kinds of Easements
Art. 613. An easement or servitude is an
encumbrance imposed upon an immovable
for the benefit of another immovable
belonging to a different owner.
The immovable in favor of which the
easement is established is called the
dominant estate; that which is subject
thereto, the servient estate.
What is an easement?
It is a real right, constituted on another’s
property, corporeal and immovable
whereby the owner of the latter must
refrain from doing or allowing somebody
else to do something on his property, for
the benefit of another or his tenement.
It is an encumbrance imposed upon an
immovable for the benefit of another
immovable belonging to a different owner
(real or predial easement). It may also be
for the benefit of the community (personal
easements).
EASEMENT DISTINGUISHED FROM
SERVITUDE:
1. Easement is the name used in
common law countries; servitude, in
civil law countries
2. Easement is broader than servitude
3. Easement is only one form of
servitude
4. Easement is always predial or real
while a servitude refers to a predial
or real easement upon the one
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PROPERTY REVIEWER
hand, or to a personal easement
upon the other hand
NOTE: Easement used in Civil code is
equivalent to servitude
What is a dominant estate?
It is the immovable for which the easement
was established
What is a servient estate?
It is the immovable which provides for the
benefit or service
*No easement may NOT be made on one’s
own land
LEASE DISTINGUISHED FROM EASEMENT:
1. Lease is a real right only when the
lease exceeds one year while
easement is always a real right
regardless if predial or personal
2. In lease, there is rightful and limited
use AND possession WITHOUT
ownership while in easement, there
is rightful limited use without both
possession and ownership
3. Lease may involve real or personal
property while easement can only
refer to immovables
*Where the easement may be established
on any of several tenements surrounding
the dominant estate, the one where they
way is SHORTEST and will cause the LEAST
damage should be chosen. However, if
these two circumstances do not concur in a
single tenement, the way which cause least
damage should be used, even if not the
shortest.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 88
Art. 614. Servitudes may also be
established for the benefit of a
community, or of one or more persons to
whom the encumbered estate does not
belong.
What are the kinds of easements?
1. Real or predial easement – for the
benefit of another immovable.
2. Personal easement – for the benefit
of the community
In a right of way for the community, the
owner cannot, however, capriciously
exclude a particular person from using it
PERSONAL EASEMENT DISTINGUISHED
FROM USUFRUCT:
1. A personal easement cannot be
alienated while a usufruct can be
alienated
2. In personal easement, the use is
specifically designated while in
usufruct, the use has a broader
scope, all possible uses
CHARACTERISTICS OF EASEMENT:
1. Real right – therefore an action in
rem is possible against the
possessor of the servient estate
2. Imposable only on another’s
property
3. In jus re aliena – a real right may be
alienated although the naked
ownership is maintained
4. Limitation or encumbrance on the
servient estate for another’s benefit
*It is essential that there be benefit
otherwise no easement
*It is not essential that benefit be exercised.
What is vital is that it can be exercised.
*It is not essential that the benefit be very
great
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PROPERTY REVIEWER
*No possession
*The exercise is naturally restricted by the
needs of the dominant estate or of its
owner, such needs being dependent upon
the progress of civilization
*Easements, being abnormal restriction on
ownership, are NOT presumed, but may be
IMPOSED by law
*It is inherent, indivisible, intransmissible
and perpetual
*No easement on personal property
SOME EASEMENTS:
1. A dam supplying water confers a
benefit, and if there is an easement,
the dam cannot be destroyed
2. There is an easement when
someone is granted the right to
maintain wires across a parcel of
land belonging to another
Art. 615. Easements may be continuous or
discontinuous, apparent or nonapparent.
Continuous easements are those the use of
which is or may be incessant, without the
intervention of any act of man.
Discontinuous easements are those which
are used at intervals and depend upon the
acts of man.
Apparent easements are those which are
made known and are continually kept in
view by external signs that reveal the use
and enjoyment of the same.
Nonapparent easements are those which
show no external indication of their
existence.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 89
Art. 616. Easements are also positive or
negative.
A positive easement is one which imposes
upon the owner of the servient estate the
obligation of allowing something to be
done or of doing it himself, and a negative
easement, that which prohibits the owner
of the servient estate from doing
something which he could lawfully do if
the easement did not exist.
CLASSIFICATION OF EASEMENTS:
1. According to party given the benefit:
a. Real or predial – for the benefit of
another immovable property
belonging to a different owner
Example: easement of water where
lower estates are obliged to allow
water naturally descending from
upper estates to flow in them
Personal – for the benefit of the
community
Example: easement of right of way
for the passage of livestock or right
of way for community
2. According to the manner of exercise:
a. Continuous – their use is incessant,
or may be incessant, without
intervention or any act of man
Example: easement of drainage, the
right to support beam on another’s
wall
*Easement of aqueduct is considered
continuous eventhough the flow of water
be not continuous
Is the easement of light and view a
continuous or discontinuous easement?
It is continous, for indeed while all
easements require human actions for
establishment, not all require human
actions for exercise.
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PROPERTY REVIEWER
b. Discontinuos – used at intervals and
depend upon the acts of man
Example: easement of right of way,
because it can be exercised only if a
man passes or puts his feet over
somebody else’s land
3. According to whether or not
existence is indicated:
a. Apparent – made known and
continually kept in view by external
sign that reveal the use and
enjoyment of the same, right of way
when there is an alley or a
permanent path; dam; window in a
party wall
*The mark or sign need not be seen but
should be susceptible of being seen
*The easement of aqueduct is always
apparent, whether seen or not
b. Non – apparent – show no external
indication of their existence. In
general, negative easements,
easements of not building to more
than a certain height, easement of
lateral and subjacent support;
easement of intermediate distances.
Also a right of way if there is no
visible path or alley.
4. According to the purpose of the
easement or the nature of the
limitation:
a. Positive (sufferance or intrusion)
– owner of the servient estate is
obliged to allow something to be
done on his property or to do it
himself. Easement of light and
view in a party wall, right of way,
duty to cut off tree branches
extending to the neighboring
estates
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 90
b. Negative (abstention or
restriction) – owner of the
servient estate is PROHIBITED to
do something which he could
lawfully do were it not for the
existence of the easement.
Easement of light and view when
the window or opening is on
owns wall or estate
5. According to the right given:
a. Partial use – ex. Right of way
b. Getting of specific material – ex.
Easement of drawing water
c. Right to participate in ownership
– ex. Easement of party wall
d. Right to impede or prevent the
neighboring estate from
performing a specifica act of
ownership. Easement of
intermediate distances as when
the servient estate cannot plant
trees without observing
distances
6. According to source or origin:
a. Voluntary – constituted by will
or agreement of parties or by
testator
*Even if a voluntary easement be by
grant, it becomes a legal easement
or an easement by necessity, it is
still a propriety right, which
continues even if the necessity has
ended
b. Legal – those constituted by law
for public use or private interest
Examples: waters, right of way,
party wall, light and view, drainage
of buildings, intermediate distances,
against nuisances, lateral and
subjacent support
c. Mixed – created partly by
agreement and partly by law
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PROPERTY REVIEWER
*When there is an easement for the benefit
of the community, the owner can close, if
he wants to, but he cannot, as long as it is
open, discriminate against, one person and
still allow the others
*An opening or window in one’s own wall
which does not extend over another’s
property can be a basis of a negative
easement of light and view for here, the
neighboring owner may later on be
prevented from obstructing the light and
view by the construction of an
overshadowing building on his own land, a
thing which he can lawfully construct were
it not for the existence of the easement
Art. 617. Easements are inseparable from
the estate to which they actively or
passively belong.
What is meant by the term inseparable?
It indicated that the independently of the
immovable to which it is attached,
easements do not exist.
*Easements are mere accessories, hence
cannot be alienated, sold or donated
independently of the real property to which
they are attached
*Alienations of tenements carries with it
alienation of the easement
*Registration of the dominant estate under
the Torrens system without the registration
of the easements in its favour does not
extinguish easements; but registration of
the servient estate without the easements
burdening it extinguishes the easements.
Actual knowledge of the easement is
binding upon third persons.
*Right of way may be legal or voluntary
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 91
General Rule: Easements shall continue to
subsist and shall be held to pass with the
title of ownership until rescinded or
extinguished by virtue of the registration of
the servient esates without including the
easements
Exception: the grantee or transferee of the
servient estate actually knew of the
existence of the unrecorded easement and
there is already and understanding or
stipulation that the easement
Art. 618. Easements are indivisible. If the
servient estate is divided between two or
more persons, the easement is not
modified, and each of them must bear it
on the part which corresponds to him.
If it is the dominant estate that is divided
between two or more persons, each of
them may use the easement in its entirety,
without changing the place of its use, or
making it more burdensome in any other
way.
*The division of estate does not divide the
easement, which continuous to be
complete un that each dominant estates,
but only on the part corresponding to each
of them.
Example:
Estate A, the dominant estate, is divided
into three, with owners, X, Y, Z having
determinate parts thereof. Each of the
three may use the easement of the right of
way for example, provided the burden is
not increased.
Art. 619. Easements are established either
by law or by the will of the owners. The
former are called legal and the latter
voluntary easements.
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PROPERTY REVIEWER
*When the court says than an easement
exists, it is NOT creating one, it merely
declares the existence of an easement.
There is no such thing as judicial easements.
SECTION 2. - Modes of Acquiring
Easements
Art. 620. Continuous and apparent
easements are acquired either by virtue of
a title or by prescription of ten years.
Title – juridical act giving rise to an
easement like by law, donation, contract
and will
Prescription – continuous adverse
possession or exercise of the easement for
a period of 10 years. Good faith of just title
is not required. It is a special kind of
prescription as the ordinary rules of
prescription as a mode of acquiring
ownership do not apply.
*Other than continuous and apparent
easements, it may only be acquired by title
*Intestate succession does not create
easement, for no act is involved. It merely
transmits an easement already made
*Prescription irrespective of good faith or
bad faith
*The government cannot compel PLDT to
enter into a contract with it (re-
interconnection of the government
telephone system with PLDT) – for freedom
of stipulation is of the essence of our
contractual system; BUT the Republic may
in its exercise of the sovereign power of
eminent domain, may REQUIRE the PLDT to
permit interconnection between the
government telephone system and that of
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 92
the PLDT, as the needs of the government
service may require, subject to just
compensation. Normally, ownership of the
expropriated property would result, but
there is no reason why eminent domain
cannot be used to merely impose a burden
or encumbrance upon the condemned
property. It is unquestionable that real
property may thru expropriation, be
subjected to the easement of right of way.
It is for the benefit of the public.
Art. 621. In order to acquire by
prescription the easements referred to in
the preceding article, the time of
possession shall be computed thus: in
positive easements, from the day on which
the owner of the dominant estate, or the
person who may have made use of the
easement, commenced to exercise it upon
the servient estate; and in negative
easements, from the day on which the
owner of the dominant estate forbade, by
an instrument acknowledged before a
notary public, the owner of the servient
estate, from executing an act which would
be lawful without the easement. (538a)
COMPUTATION OF THE PERIOD:
1. Positive easements – possession
shall be counted from the date the
owner of the dominant estate or the
user began to exercise it upon the
servient estate
2. Negative easements – possession
shall e counted from the date the
owner of the dominant estate had
forbidden by “notarial prohibition,”
the owner of the servient estate
from executing the act which will
impede the rising of the easement –
which act could be lawfully done
were it not for the easement
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PROPERTY REVIEWER
*The notarial prohibition makes the non-
apparent, apparent
*Oral prohibition is not sufficient
Examples:
1. A and B are neighbours and they
own a party wall with an opening or
window made on 2002. B can close
it anytime before 2012. Because if
by that time the window is still
open, A has already acquired the
easement of light and view by
prescription of 10 years, counted
from the opening of the window
since this is a POSITIVE EASEMENT.
2. A and B are neighbours. On his
building’s wall , A opened a window
beneath the ceiling joists to admit
light in 2002. Even after 10 years
(2012), B may still obstruct the light
by constructing on his own lot a
building higher than A’s unless A
makes a notarial prohibition
prohibiting B from making
obstruction. If in 2002, A makes the
prohibition B may still make the
obstruction in 2009 because it is
within the 10 year period allowed by
law. After 2012, B may no longer
obstruct. A window opened on one’s
own wall and which DOES NOT
extend over the negighbor’s land
may give rise to a NEGATIVE
easement, since the neighbour may
be prohibited to do an act which
should be lawful to do if easement
does not exist.
Is the easement of light and view positive
or negative?
It depends. If it is made on one’s OWN wall
and does not extend on neighbor’s land, the
easement is negative. If it is made on one’s
own wall which extends over the
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 93
neighboring land or if made on a party wall,
the easement is an act of suffereance or
allowance, the easement is positive.
May an easement of right of way be
acquired by prescription?
No because it is discontinuous or
intermittent.
Why negative easements can be acquired
by prescription despite the fact that they
are non-apparent:
Not because there are visible signs of their
existence but because of the making of
notarial prohibition makes it apparent.
Art. 622. Continuous nonapparent
easements, and discontinuous ones,
whether apparent or not, may be acquired
only by virtue of a title.
EASEMENTS THAT MAY BE ACQUIRED BY
TITLE:
1. Continuous non-apparent – because
they are not public
2. Discontinuous apparent – because
possession is NOT uninterrupted
3. Discontinuous non-apparent –
because it is neither public nor
uninterrupted
Art. 623. The absence of a document or
proof showing the origin of an easement
which cannot be acquired by prescription
may be cured by a deed of recognition by
the owner of the servient estate or by a
final judgment.
*Court’s decision is merely declaratory
*As long as the existence of a voluntary
easement can be proved by court, it is
immaterial that there is no document
evidencing the existence of the easement
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PROPERTY REVIEWER
Art. 624. The existence of an apparent sign
of easement between two estates,
established or maintained by the owner of
both, shall be considered, should either of
them be alienated, as a title in order that
the easement may continue actively and
passively, unless, at the time the
ownership of the two estates is divided,
the contrary should be provided in the title
of conveyance of either of them, or the
sign aforesaid should be removed before
the execution of the deed. This provision
shall also apply in case of the division of a
thing owned in common by two or more
persons.
APPLICABILITY OF THIS ARTICLE:
a. Whether only one or both estates
are alienated
b. Even if there be only one estate but
there are two portions thereof, as
long as later on there is a division of
the ownership of said portion
c. Even in the case of division of
common property, though this is not
alienation
Example: “A” owns 2 adjacent lots (Lot 1
and Lot 2) covering by two certificates of
titles. Lot 1 is abutting the highway and Lot
2 is behind Lot 1. There exists a cemented
road in Lot 1 which is being used as the
passageway in going to and from the
interior lot.
“A” donated Lot 1 to “B” and sold it to “C”
These alienations of the two lots to
different persons will have the effect of
creating an easement of right of way in
favour of Lot 2 provided the road still exists
at the time of the donation and sale, and no
contrary stipulation has been provided in
the deeds of donation and sale
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 94
*Before alienation, there is no true
easement
*There arises an easement if the sign
continuous to remain unless there is a
contrary agreement
*There is no true easement if sign is
removed
Check doctrines on Amor vs Florentino and
Valisno vs Adriano
Example: A owns Estate 1 and Estate 2 and
there exists a road or passageway allowing
passage from Estate 1 thru Estate 2. If
Estate `` is sold to B, and Estate 2 is sold to
C, the easement exists if the road still exists,
unless the contrary has been provided in
the deed of conveyance of either of them
*If deed is silent, the easement still exists
unless sign be removed.
Art. 625. Upon the establishment of an
easement, all the rights necessary for its
use are considered granted. (542)
*There is always an implied grant of all
rights including repair, maintenance,
accessory easement such as the right of
way when the easement is for the drawing
of water
*To bind third persons, voluntary
easements must be registered
Art. 626. The owner of the dominant
estate cannot use the easement except for
the benefit of the immovable originally
contemplated. Neither can he exercise the
easement in any other manner than that
previously established.
Example: If Estate A has a right of way over
Estate B, it does not necessarily follow that
Estate C (even if also owned by Estate A)
has a right of way over Esate B.
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PROPERTY REVIEWER
*Allowing friends to pass by a right of way
would be considered burdensome
If the right of way refers to the passage of
a certain number of vehicles, can the
dominant estate increase the number of
said vehicles?
No. It constitutes an increase in burden or a
different form of exercising the easement.
What is easement in gross or easement
apurtenent?
These are easements without dominant
estates. They are purely personal interests
in the land of another but, nevertherlss, are
considered real property
SECTION 3. - Rights and Obligations
of the Owners of the Dominant and
Servient Estates
Art. 627. The owner of the dominant
estate may make, at his own expense, on
the servient state any works necessary for
the use and preservation of the servitude,
but without altering it or rendering it more
burdensome.
For this purpose he shall notify the owner
of the servient estate, and shall choose the
most convenient time and manner so as to
cause the least inconvenience to the
owner of the servient estate. (543a)
Art. 628. Should there be several dominant
estates, the owners of all of them shall be
obliged to contribute to the expenses
referred to in the preceding article, in
proportion to the benefits which each may
derive from the work. Any one who does
not wish to contribute may exempt himself
by renouncing the easement for the
benefit of the others.
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If the owner of the servient estate should
make use of the easement in any manner
whatsoever, he shall also be obliged to
contribute to the expenses in the
proportion stated, saving an agreement to
the contrary. (544)
Art. 629. The owner of the servient estate
cannot impair, in any manner whatsoever,
the use of the servitude.
Nevertheless, if by reason of the place
originally assigned, or of the manner
established for the use of the easement,
the same should become very
inconvenient to the owner of the servient
estate, or should prevent him from making
any important works, repairs or
improvements thereon, it may be changed
at his expense, provided he offers another
place or manner equally convenient and in
such a way that no injury is caused thereby
to the owner of the dominant estate or to
those who may have a right to the use of
the easement. (545)
Art. 630. The owner of the servient estate
retains the ownership of the portion on
which the easement is established, and
may use the same in such a manner as not
to affect the exercise of the easement.
RIGHTS OF THE DOMINANT ESTATE:
1. To exercise the easement and all
necessary rights for its use including
accessory easements
2. To make on the servient estate all
works necessary for the use and
preservation, BUT-
a. Must be at his own expense
b. Must notify servient owner
c. Select convenient time and
manner
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PROPERTY REVIEWER
d. Must not alter the easement nor
render it more burdensome
3. To ask for a mandatory injunction to
prevent impairment or obstruction
in the exercise of the easement as
when the owner of the servient
estate obstructs the right of way by
building wall or fence
4. To renounce totally the easement if
he desires exemption from
contribution to expenses
OBLIGATIONS OF THE DOMINANT ESTATE:
1. He cannot alter the easement
2. He cannot make it more
burdensome
a. Thus he cannot use the
easement except for movable
originally contemplated
b. In the easement of right of way,
he cannot increase the agreed
width or path, nor deposit soil or
materials outside of the
boundaries agreed upon
3. If there be several dominant estates,
each must contribute to necessary
repairs and expenses in proportion
to the benefits receives by each
estate. In the absence of proof, it is
presumed to be equal.
4.
RIGHTS OF SERVIENT ESTATE:
1. To retain ownership and possession
of the portion of the land affected
by the easement even if indemnity
for the right of way is given unless
the contrary has been stipulated
2. To make use of the easement,
unless deprived by stipulation
provided that the exercise of the
easement is not adversely affected
and provided further that he
contributes to the expenses in
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proportion to the benefits received,
unless there is a contrary stipulation
3. To change the location of a very
inconvenient easement provided
than an equally convenient
substitute is made without injury to
the dominant estate
OBLIGATION OF THE SERVIENT ESTATE:
1. Cannot impair the use of the
easement
2. Must contribute to the expenses in
case he uses the easement, unless
there is a contrary stipulation
3. In case of impairment, to restore the
conditions to the status quo at his
expense plus damages. In case of
obstruction, he may be restrained
by injunction
4. To pay for the expenses incurred for
the change of location or form of
the easement
SECTION 4. - Modes of Extinguishment of
Easements
Art. 631. Easements are extinguished:
(1) By merger in the same person of
the ownership of the dominant and
servient estates;
(2) By nonuser for ten years; with
respect to discontinuous
easements, this period shall be
computed from the day on which
they ceased to be used; and, with
respect to continuous easements,
from the day on which an act
contrary to the same took place;
(3) When either or both of the
estates fall into such condition that
the easement cannot be used; but
it shall revive if the subsequent
condition of the estates or either of
them should again permit its use,
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PROPERTY REVIEWER
unless when the use becomes
possible, sufficient time for
prescription has elapsed, in
accordance with the provisions of
the preceding number;
(4) By the expiration of the term or
the fulfillment of the condition, if
the easement is temporary or
conditional;
(5) By the renunciation of the
owner of the dominant estate;
(6) By the redemption agreed upon
between the owners of the
dominant and servient estates.
MODES OF EXTINGUISHING EASEMENTS:
1. Merger – it must be absolute,
complete, not temporary. Thus if the
owner of the servient estate buys
the whole portion affected, the
merger is complete and the
easement is extinguished.
When the estate is sold subject to a
pacto de retro, the easement is not
extinguished. The merger is only
temporary because there can be a
redemption period. It becomes
absolute only if the redemption
period lapses without any
redemption having been made by
the seller
2. Non-use for 10 years – presupposes
that the easement had been used
before but it was abandoned later
for 10 years. If there are several
dominant owners, use of one
prevents prescription
How is prescription computed?
If it is a discontinuous easement, from the
time it ceased to be used. If it is a
continuous easement, from the date an act
contrary to the easement has taken place.
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*The proof must be indubitable
3. Bad condition of the tenement or
impossibility of use – this merely suspend
unless extinguishment is caused by the
necessary period for non-use since
possibility of use revives the easement
Example: A right of way was thickly covered
by laharincluding the entire tenement on
which it is imposed. The easement is
extinguished
If the servient estate is flooded, the
easement of right of way cannot serve its
purpose. After the recessionof the flood, it
can be used again, unless prescription sets
in
3. Expiration of the term or fulfilment
of the condition
Example: The easement will be effective
until the death of the dominant owner.
Upon the latter’s death, the easement is
extinguished
4. Renunciation – it must be express,
clear and specific. This is particularly
true for discontinuous easements. It
must be done in a public instrument
5. Redemption – agreement between
the owners of the dominant and
servient estate whereby the servient
owner is given the right to redeem
the easement, and he redeems it by
paying agreed sum.
6.
OTHER GROUNDS:
1. Expropriation
2. Permanent impossibility to make
use of easement
3. Annullment, recission, cancellation
of title
4. Abandonment of the servient estate
5. In the case of legal easement of
right of way, the opening of an
aqueduct outlet to the highway
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
extinguishes the easement, if the
servient owner makes a demand for
such extinguishment
Art. 632. The form or manner of using the
easement may prescribe as the easement
itself, and in the same way.
*The easement may itself prescribe
*The form or manner of using may also
prescribe in the same manner as the
easement itself
*Some legal easements do not prescribe
like servitude of natural drainage, but the
manner and form of using them may
prescribe, as in the case of an easement of
right of way
*Form or manner AND easement itself are
distinct
CAN A RIGHT OF WAY BE ACQUIRED BY
PRESCRIPTION?
JQ’s opinion: No but the portion itself can
be acquired by third person ONLY.
Art. 633. If the dominant estate belongs to
several persons in common, the use of the
easement by any one of them prevents
prescription with respect to the others.
*The non-use of other co-owners cannot
give rise to prescription, even with respect
to their own shares
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 98
CHAPTER 2
LEGAL EASEMENTS
SECTION 1. - General Provisions
Art. 634. Easements imposed by law have
for their object either public use or the
interest of private persons.
WHAT IS A LEGAL EASEMENT?
These are easements imposed by law, and
which have for their object either for public
use or the interest of private persons
KINDS OF LEGAL EASEMENTS:
1. Public use – for the benefit of the
community
2. Private use – for the benefit of
private persons
WHAT ARE THE DIFFERENT LEGAL
EASEMENTS?
1. Easement relating to water
2. Right of way
3. Party wall
4. Light and view
5. Drainage
6. Intermediate distances
7. Easement against nuisance
8. Lateral and subjacent support
Art. 635. All matters concerning easements
established for public or communal use
shall be governed by the special laws and
regulations relating thereto, and, in the
absence thereof, by the provisions of this
Title.
HOW ARE PUBLIC OR COMMUNAL
EASEMENTS GOVERNED?
First by special laws and regulations then
the Civil Code in a suppletory effect.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
Art. 636. Easements established by law in
the interest of private persons or for
private use shall be governed by the
provisions of this Title, without prejudice
to the provisions of general or local laws
and ordinances for the general welfare.
These easements may be modified by
agreement of the interested parties,
whenever the law does not prohibit it or
no injury is suffered by a third person.
HOW LEGAL EASEMENTS FOR PRIVATE
INTERESTS ARE GOVERNED:
1. Agreement of interested parties
provided not prohibited by law nor
prejudicial to a third person
2. In default, general or local law and
ordinances for the general welfare
3. In default, Civil Code
SECTION 2. - Easements Relating to Waters
Art. 637. Lower estates are obliged to
receive the waters which naturally and
without the intervention of man descend
from the higher estates, as well as the
stones or earth which they carry with
them.
The owner of the lower estate cannot
construct works which will impede this
easement; neither can the owner of the
higher estate make works which will
increase the burden. REPEALED
The repealing law provides:
Art. 50 Lower estates are obliged to receive
the waters which naturally and without the
intervention of man flow from the higher
estates, as well as the stone or earth which
they carry with them.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 99
The owner of the lower estate cannot
construct works which will impede this
natural flow, unless he provides an
alternative method of drainage, neither can
the owner of the higher estate make works
which will increase their natural flow.
*By way of exception, the servient estate
may now construct works which may
obstruct the natural flow of the waters as
long as an alternative drainage has been
provided.
*Lower estates – servient
*Higher estates – dominant
OBLIGATIONS OF THE SERVIENT ESTATE:
1. Constructions of works that will
impede the easement or which will
divert the flow of the waters and
burden any tenement
2. Enclosure of the land by ditches and
fences to impede the flow of the
waters
OBLIGATIONS OF THE DOMINANT
ESTATES:
1. Cannot use the construction of
works which will intensify the
burden on the servient estate.
However, they are allowed to
construct works that will be
beneficial to the servient estates
such as works to prevent the erosion
of the land
2. They must compensate the owners
of the servient estate if the waters
are the result of an overflow from
irrigation dams, or the result of
artificial descent done by man and
damages caused by reason thereof
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
*There will be no indemnity if the
conditions laid down in law had been
complied with by the dominant estates.
Art. 638. The banks of rivers and streams,
even in case they are of private ownership,
are subject throughout their entire length
and within a zone of three meters along
their margins, to the easement of public
use in the general interest of navigation,
floatage, fishing and salvage.
Estates adjoining the banks of navigable or
floatable rivers are, furthermore, subject
to the easement of towpath for the
exclusive service of river navigation and
floatage.
If it be necessary for such purpose to
occupy lands of private ownership, the
proper indemnity shall first be paid.
REPEALED
The repealing law provides:
Art 51. The banks of rivers and streams and
the shores of the seas and lakes throughout
their entire length and within a zone of 3
meters in urban areas, 20 meters in forest
areas, along margins are subject to the
easement of public use in the interest of
recreation, navigation, floatage, fishing and
salvage. No person shall be allowed to stay
in the zone longer than what is necessary
for recreation, navigation, floatage, fishing
or salvage or to build structures of any kind
(PD 1067)
Easement covered –
1. Easement of public use in the
interest of recreation
2. Navigation
3. Floatage
4. Fishing
5. Salvage
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 100
Width of zone of banks of rivers, streams,
shores of seas and lakes subject to
easements
1. Urban areas – 3m
2. Agricultural areas – 20m
3. Forest areas – 40m
Art. 639. Whenever for the diversion or
taking of water from a river or brook, or
for the use of any other continuous or
discontinuous stream, it should be
necessary to build a dam, and the person
who is to construct it is not the owner of
the banks, or lands which must support it,
he may establish the easement of
abutment of a dam, after payment of the
proper indemnity.
Example:
A wants to get water from a river, but to do
so, he has to construct a dam on B’s land. A
must first ask B’s permission or else request
for an administrative investigation to find
out whether the building of the dam is
essential or not. If neither permission nor
investigation is present, and a dam is
constructed, what would be the
consequences of A’s action?
a. It is as if A had taken the law into
the hands, for in the absence of B’s
permission, the government should
have first investigated.
b. Since A’s action amounted to the
taking of the property without due
process of law, the dam or
construction can be considered a
private nuisance, and B cannot be
restrained if he desires to demolish
same
*Indemnity is required
*Permit from appropriate authority needed
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
Art. 640. Compulsory easements for
drawing water or for watering animals can
be imposed only for reasons of public use
in favor of a town or village, after payment
of the proper indemnity.
EASEMENTS FOR DRAWING WATER OR
FOR WATERING ANIMALS:
1. They can be imposed only for public
use
2. They must be in favour of a town or
village
3. Proper indemnity must be paid
*It presupposes the availability of water
within the property of the servient estate
which is needed for the use of the
community or for the bathing of their
animals like carabaos, cattle, etc. In favour
of a town or village.
Art. 641. Easements for drawing water and
for watering animals carry with them the
obligation of the owners of the servient
estates to allow passage to persons and
animals to the place where such
easements are to be used, and the
indemnity shall include this service.
*The principal easements covered are the
easements for drawing water and watering
animals but there is also an accessory
easement here combined with the first,
namely, the easement of the right of way
REQUIREMENT FOR SUCH AN EASEMENT
TO EXIST:
1. Must be for public use
2. Must be in favour of a town or
village
3. The right must be sought not by one
individual, but by town or village,
thru legal representation
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 101
4. There must be payment for proper
indemnity
5. The right of way is only for a
maximum width of 10 meters
Art. 642. Any person who may wish to use
upon his own estate any water of which he
can dispose shall have the right to make it
flow through the intervening estates, with
the obligation to indemnify their owners,
as well as the owners of the lower estates
upon which the waters may filter or
descend.
What is an aqueduct?
It is a conduit or artificial channel for
conducting water from a distance
What is meant by easement of aqueduct?
It is a right to make one’s water tun and
flow through intervening estates for his
own use. However, he is obliged to pay
indemnity to the owners of the intervening
estates and to all other owners of the lower
estates where the water may descend
through
REQUISITES:
1. Rights of disposal
2. Indemnity
3. Least injurious and most convenient
WHAT IS THE NATURE OF AQUEDUCT?
It is continuous and apparent.
MAY IT BE ACQUIRED THROUGH
PRESCRIPTION?
No, water is owned by the state. It is only
CA for legal purposes.
Art. 643. One desiring to make use of the
right granted in the preceding article is
obliged:
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PROPERTY REVIEWER
(1) To prove that he can dispose of
the water and that it is sufficient
for the use for which it is intended;
(2) To show that the proposed right
of way is the most convenient and
the least onerous to third persons;
(3) To indemnify the owner of the
servient estate in the manner
determined by the laws and
regulations.
OBLIGATIONS OF THE OWNER OF THE
DOMINANT ESTATE:
1. He can dispose of the water
2. Water is sufficient for the intended
use
3. The proposed right of way where
the water will pass through is the
most convenient and least onerous
to the servient estates
4. The indemnity is paid
*Easement of right of way does not
necessarily include easement of aqueduct.
Hence, it is not to be presumed that when
someone is granted the right of way, he
may dig trenches and lay pipelines for
conducting water to his tenement
Art. 644. The easement of aqueduct for
private interest cannot be imposed on
buildings, courtyards, annexes, or
outhouses, or on orchards or gardens
already existing.
*when an easement of aqueduct will be
allowed to burdent the said properties,
there will be an invasion of the privacy of
the premises of the owners thereof.
However, if the easement of aqueduct is for
the benefit of the public or community, it
can be imposed on the properties.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 102
Art. 645. The easement of aqueduct does
not prevent the owner of the servient
estate from closing or fencing it, or from
building over the aqueduct in such manner
as not to cause the latter any damage, or
render necessary repairs and cleanings
impossible.
RIGHT TO CLOSE OR FENCE OR TO BUILD
STRUCTURES:
a. No damage is caused to the
aqueduct
b. Repairs and cleaning of the
aqueduct shall not be rendered
Art. 646. For legal purposes the easement
of aqueduct shall be considered as
continuous and apparent, even though the
flow of the water may not be continuous,
or its use depends upon the needs of the
dominant estate, or upon a schedule of
alternate days or hours. (561)
*Easement of right of way does not always
include easement of aqueduct
*The right to dig trenches and lay pipelines
for conducting of water not included in a
contract granting a right of way
REQUISITES TO ACQUIRE THE EASEMENT:
1. Indemnity must be paid. Amount
depends on DURATION and
inconvenience caused
2. If for private interest, the easement
cannot be imposed on EXISTING
buildings, courtyards, annexes, out-
houses, orchards, or gardens
3. Proof:
a. That he can dispose
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PROPERTY REVIEWER
b. The water is sufficient for the
use indicated for which it is
intended
c. Proposed course is the most
convenient and least onerous to
third persons and the servient
estate
d. The proper administrative
permission is obtained
POSSIBLE WAYS OF MAKING EFFECTIVE
THE EASEMENT:
1. Construction of an open canal (not
dangerous nor very deep)
2. Construction of a covered or closed
canal (if so required by the legal
authorities to lessen danger)
3. Construction of tubes or pipes (Law
of waters
OBLIGATION OF DOMINANT OWNER:
1. To keep the aqueduct in proper use
or care
2. To keep on hands necessary
materials for its use
PRESERVATION OF RIGHT OF SERVIENT
ESTATE TO FENCE:
The servient owner may still enclose or
fence the servient estate, or even build over
the aqueduct, so long as:
a. No damage is caused
b. Or repairs and cleanings become
impossible
PARTICULAR CHARACTERISTICS OF THE
EASEMENT:
It is continuous and apparent for LEGAL
PURPOSES.
Art. 647. One who for the purpose of
irrigating or improving his estate, has to
construct a stop lock or sluice gate in the
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 103
bed of the stream from which the water is
to be taken, may demand that the owners
of the banks permit its construction, after
payment of damages, including those
caused by the new easement to such
owners and to the other irrigators. (562)
CONSTRUCTION OF A STOP LOCK OR
SLUICE GATE:
1. Purpose must be for irrigation or
improvement
2. The construction must be on the
estate of another
3. Damages must be paid
4. Third persons should not be
prejudiced
Art. 648. The establishment, extent, form
and conditions of the servitudes of waters,
to which this section refers, shall be
governed by the special laws relating
thereto insofar as no provision therefor is
made in this Code. (563a)
*Civil Code provisions on Easements of
Waters prevail over Special Laws
*Special laws referred to includes the
Spanish law of waters, irrigation law as
amended
SECTION 3. - Easement of Right of Way
Art. 649. The owner, or any person who by
virtue of a real right may cultivate or use
any immovable, which is surrounded by
other immovables pertaining to other
persons and without adequate outlet to a
public highway, is entitled to demand a
right of way through the neighboring
estates, after payment of the proper
indemnity.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
Should this easement be established in
such a manner that its use may be
continuous for all the needs of the
dominant estate, establishing a permanent
passage, the indemnity shall consist of the
value of the land occupied and the amount
WHAT IS EASEMENT OF RIGHT OF WAY?
It is an easement or privilege by which one
person or a particular class of persons is
allowed to pass over another’s land, usually
thru one particular path or line. The term
right of way upon the other hand, may refer
either to the easement itself, or simply, to
the strip of land over which passage can be
done.
REQUISITES FOR THE EASEMENT: (must
strictly be complied with)
1. The property is surrounded by other
estates
2. There is no adequate outlet to the
public highway. If outlet is thru the
water, like a river or sea, under the
Spanish law, the easement cannot
be demanded for there exists an
adequate outlet
3. There must be payment of the
proper indemnity
4. It must be established at the point
least prejudicial to the servient
estate.
5. The isolation must not be due to the
proprietor’s own acts
6. Demandable only by the owner or
one with a real right like a
usufructuary
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WHAT IF ISOLATION WAS DUE TO THE
DOMINANT ESTATE, CAN HE STILL
DEMAND FOR RIGHT OF WAY?
No. It is self-inflicted. Right of way is
compulsory but if it is due to the acts of
dominant estate, it becomes voluntary.
*Existence of an easement is not dependent
on the consent of the owners because it is a
legal easement.
IS IT ONLY THE OWNER OF THE DOMINANT
ESTATE WHICH CAN DEMAND EASEMENT?
No. Also the usufructuary.
MAY A LESSEE DEMAND A RIGHT OF WAY?
No, it is a personal right. If he wants to, he
should ask the lessor if he has a real
necessity.
*The burden of proving the existence of the
prerequisites to validly claim a compulsory
right of way lies on the owner of the
dominant estate
PROPER INDEMNITY:
a. If the passage is permanent, pay the
value of land occupied by the path
plus damages. (Upon extinction of
the easement, the indemnity is
returned without interest, for the
interest is considered rent)
b. If temporary, pay for the damages
caused. (It is temporary when, for
example, the estate is not being
cultivated whole year round, and
when harvesting is only once in a
while, or when the carrying of
materials is needed to improve a
building
CLASSIFICATION OF RIGHT OF WAY:
1. Private
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PROPERTY REVIEWER
2. Publlic
EASEMENT IN FAVOR OF THE
GOVERNMENT:
The only easement which a private owner is
required to recognize in favour of the
government is the easement of a “public
highway, way, private way established by
law or any government or lateral thereof,”
where the certificate of title does not state
that the boundaries thereof have been
determined. But even in the case, it is
necessary that the easement should have
been previously established by law, which
implies that the same should have been
pre-existing at the time of the registration
of the land in order that the registered
owner may be compelled to respect it.
where the easement is not pre-existing and
is sought to be imposed only after the land
has been registered under the Land
Registration Act, proper expropriation
proceedings, should be had, and just
compensation paid to to the registered
owner thereof. For, it is elementary that the
public use may not be imposed on private
property without expropriation proceedings
and payment of just compensation made to
the owner.
Art. 650. The easement of right of way
shall be established at the point least
prejudicial to the servient estate, and,
insofar as consistent with this rule, where
the distance from the dominant estate to a
public highway may be the shortest. (565)
Art. 651. The width of the easement of
right of way shall be that which is
sufficient for the needs of the dominant
estate, and may accordingly be changed
from time to time. (566a)
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WIDTH OF PATH:
1. The width may be modified from
time to time depending upon the
reasonable needs of the dominant
estate
2. Nowadays, the use of automobiles is
a vital necessity, hence, the pathway
should be sufficient for this
Art. 652. Whenever a piece of land
acquired by sale, exchange or partition, is
surrounded by other estates of the vendor,
exchanger, or co-owner, he shall be
obliged to grant a right of way without
indemnity.
In case of a simple donation, the donor
shall be indemnified by the donee for the
establishment of the right of way. (567a)
GRANTING OF RIGHT OF WAY, WITHOUT
INDEMNITY:
When the vendor sells a parcel of
land and this land is surrounded by other
estates of said vendor and is without access
to a public highway, the vendor is obliged to
grant a right of way with demanding an
indemnity.
This rule equally applies to an
exchange of property, or partition of
property, or partition of property in co-
ownership. The exchange, or the co-owner
shall have the same obligation as the
vendor.
However, if the juridical act is simple
donation, the donee is obliged to pay
indemnity to the donor for the
establishment of the easement of right of
way.
Art. 653. In the case of the preceding
article, if it is the land of the grantor that
becomes isolated, he may demand a right
of way after paying a indemnity. However,
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PROPERTY REVIEWER
the donor shall not be liable for indemnity.
(n)
RULE IF GRANTOR’S OR GRANTEE’S LAND
IS ENCLOSED OR ISOLATED:
1. If the ENCLOSING estate is that of
the grantor, the grantee does not
pay indemnity for the easement
2. If the ENCLOSED estate id that of the
grantor, the grantor must pay
indemnity
NATURE OF THE EASEMENT:
The easement in 652 and 653 is in a sense
of a voluntary easement. It is of course
compulsory in the sense that is has to be
granted, generally without the payment of
indemnity.
SPECIAL PROBLEMS:
1. A sold to B a parcel of land
surrounded by other estates. A gave
B and outlet thru Estate 1 without
indemnity since the purchase price
presumably already included the
right to the easement. Later, the
outlet thru Estate 1 became useless
because the highway to which it led
was closed. If B demands another
outlet, is he allowed to get one? If
so, must he pay indemnity?
ANS: Yes, he can demand another outlet
under Art 649 (and must therefore pay).
He cannot take advantage of Art 652
because after all, the outlet had already
been granted once, that is, when the
sale was made. This time, the necessity
arises not because of the sale, but
because of necessity itself.
2. A ones 2 estates. He sold the first
(having access to the highway) to B.
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Later, he sold the second (without
access) to C. So that C can gain
access, he must pass thru B’s land.
Does C have to pay indemnity to B?
ANS: It is submitted that the answer is YES,
because after all, B did not sell the land to
C, and clearly ART 652 cannot apply despite
a decision contrary by the Spanish Supreme
Court, which ruled A should take care of the
indemnity .
Art. 654. If the right of way is permanent,
the necessary repairs shall be made by the
owner of the dominant estate. A
proportionate share of the taxes shall be
reimbursed by said owner to the
proprietor of the servient estate. (n)
OWNERSHIP OF, AND REPAIRS AND TAXES
ON, PATH:
1. Even though permanent, the path
belongs to the servient estate, and
he pays ALL the taxes
2. BUT the dominant estate:
a. Should pay for repairs
b. Should pay proportionate shares
of taxes to the estate
(“proportionate” means the
WHOLE tax for the whole estate)
Art. 655. If the right of way granted to a
surrounded estate ceases to be necessary
because its owner has joined it to another
abutting on a public road, the owner of the
servient estate may demand that the
easement be ext,inguished, returning what
he may have received by way of
indemnity. The interest on the indemnity
shall be deemed to be in payment of rent
for the use of the easement.
The same rule shall be applied in case a
new road is opened giving access to the
isolated estate.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
In both cases, the public highway must
substantially meet the needs of the
dominant estate in order that the
easement may be extinguished. (568a)
CAUSES FOR EXTINGUISHMENT OF THE
EASEMENT OF RIGHT OF WAY:
1. Opening of new road
2. Joining the dominant estate to
another (that is the latter becomes
also the property of the dominant
owner) which abuts, and therefore
has access to the public highway. Ut
the new access must be adequate
and convenient.
EXTINGUISHMENT IS NOT AUTOMATIC:
The extinguishment is not automatic,
because the law provides that the serivent
owner “may demand” It follows that if he
chooses not to demand, the easement
remains and he has no duty to refund the
indemnity.
NON-APPLICABILITY OF THE ARTICLE TO A
VOLUNTARY EASEMENT: Not applicable to
a voluntary one
NO RETURN OF INDEMNITY IN CASE OF
TEMPORARY EASEMENT – If the easement is
temporary, the indemnity does not have to be
returned since the damage had already been
caused.
CAUSES FOR EXTINGUISHNG A LEGAL OR
COMPULSORY RIGHT OF WAY:
1. When the dominant estate is joined to
another estate which is abutting a
public road, the access being adequate
and convenient
2. When a new road is opened giving
access to the isolated estate
*No interest due on return of indemnity
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RETURN OF INDEMNITY, WHEN NOT
REQUIRED – when the easement is not
permanent but only temporary, upon its
extinction, there is no indemnity to reimburse.
The damage had already been done. The
indemnity paid has the nature of rentals in a
lease contract which do not need to be
returned after the termination of the lease. This
is but fair.
Art. 656. If it be indispensable for the
construction, repair, improvement,
alteration or beautification of a building,
to carry materials through the estate of
another, or to raise therein scaffolding or
other objects necessary for the work, the
owner of such estate shall be obliged to
permit the act, after receiving payment of
the proper indemnity for the damage
caused him. (569a)
TEMPORARY EASEMENT OF RIGHT OF
WAY:
1. The easement here is necessarily
only TEMPORARILY, nonetheless
proper indemnity must be given
2. “Indispensable” is not to be
construed literally. The causing of
great inconvenience is sufficient
3. The owner (or usufructuary) can
make use of 656
Art. 657. Easements of the right of way for
the passage of livestock known as animal
path, animal trail or any other, and those
for watering places, resting places and
animal folds, shall be governed by the
ordinances and regulations relating
thereto, and, in the absence thereof, by
the usages and customs of the place.
Without prejudice to rights legally
acquired, the animal path shall not exceed
in any case the width of 75 meters, and the
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PROPERTY REVIEWER
animal trail that of 37 meters and 50
centimeters.
Whenever it is necessary to establish a
compulsory easement of the right of way
or for a watering place for animals, the
provisions of this Section and those of
Articles 640 and 641 shall be observed. In
this case the width shall not exceed 10
meters. (570a)
EASEMENT OF RIGHT OF WAY FOR THE
PASSAGE OF LIVESTOCK – servidumbres
pecurias
WIDTH (MAXIMUM):
1. Animal path – 75 meters
2. Animal trail – 37 meters and 50
centimeters
3. Cattle – 10 meters (unless proper to
the Old Civil Code, vested rights had
been acquired to a greater width)
CROSS-REFERENCE:
640 and 640 relate to:
1. Indemnity payment
2. The fact that the easement for
drawing water or for watering
animals can be imposed only for
reasons of public use in favour of
town or village
SECTION 4. - Easement of Party Wall
Art. 658. The easement of party wall shall
be governed by the provisions of this Title,
by the local ordinances and customs
insofar as they do not conflict with the
same, and by the rules of co-ownership.
(571a)
*The easement of party wall is also called
servidumbre de medianera
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WHAT IS A PARTY WALL?
It is a wall erected on the line between two
adjoining properties belonging to different
persons, for the use of both estates. In
genereal, by statute such wall must be built
equally on both properties at the genereal
expense of the owners; but, if only one
owner wishes to use it, he shall build at his
own expense, the other party paying half of
its value when in the future he makes use of
it. Co-ownership governs the wall, hence
the party wall is necessarily a common wall.
However, not all common walls are party
walls. For example, a handball wall owned
by two brothers, on their common lot is a
common wall, but is not a party wall
IS THE EASEMENT OF PARTY WALL REALLY
AN EASEMENT OR IS IT A CASE OF CO-
OWNESRSHIP?
It is a compulsory kind of co-
ownership (FORGED INDIVISION) where
the shares of each owner cannot be
separated physically (otherwise the wall
would be destroyed), although said shares
may in a sense be materially pointed out.
(Thus, each co-owner owns the half nearest
to him)
It is a special kind of forced co-
ownership
RULES THAT GOVERN EASEMENT OF PARTY
WALL:
1. Civil code on easement
2. Local ordinances and customs
3. Civil code on co-ownership
Art. 659. The existence of an easement of
party wall is presumed, unless there is a
title, or exterior sign, or proof to the
contrary:
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PROPERTY REVIEWER
(1) In dividing walls of adjoining
buildings up to the point of
common elevation;
(2) In dividing walls of gardens or
yards situated in cities, towns, or in
rural communities;
(3) In fences, walls and live hedges
dividing rural lands. (572)
EXISTENCE OF EASEMENT OF PARTY WALL,
PRESUMED:
1. In dividing walls of adjoiingn
buildings up to the point of common
elevation
2. In dividing walls of gardens or yards
situated in cities, towns, or in rural
communities
3. In fences, walls and living hedges
dividing rural lands
HOW PRESUMPTION THAT A WALL IS A
PARTY WALL MAY BE REBUTTED:
The presumption is rebutted by:
1. Title to the contrary
2. Exterior signs to the contrary
3. Proof to the contrary
CONFLICT BETWEEN A TITLE AND AN
EXTERIOR SIGN - TITLE PREVAILS
Art. 660. It is understood that there is an
exterior sign, contrary to the easement of
party wall:
(1) Whenever in the dividing wall of
buildings there is a window or
opening;
(2) Whenever the dividing wall is,
on one side, straight and plumb on
all its facement, and on the other, it
has similar conditions on the upper
part, but the lower part slants or
projects outward;
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(3) Whenever the entire wall is built
within the boundaries of one of the
estates;
(4) Whenever the dividing wall
bears the burden of the binding
beams, floors and roof frame of one
of the buildings, but not those of
the others;
(5) Whenever the dividing wall
between courtyards, gardens, and
tenements is constructed in such a
way that the coping sheds the
water upon only one of the estates;
(6) Whenever the dividing wall,
being built of masonry, has
stepping stones, which at certain
intervals project from the surface
on one side only, but not on the
other;
(7) Whenever lands inclosed by
fences or live hedges adjoin others
which are not inclosed.
In all these cases, the ownership of the
walls, fences or hedges shall be deemed to
belong exclusively to the owner of the
property or tenement which has in its
favor the presumption based on any one of
these signs. (573)
EXTERIOR SIGNS NEGATIVING THE
EXISTENCE OF A PARTY WALL – the article
enumerated the exterior signs rebutting the
presumption of there being an easement of
party wall (thus, instead of a party wall we
have a wall exclusively owned by a single
owner)
CONFLICTING EXTERIOR SIGNS:
If one owner has signs in his favour, and
some against him, they generally cancel
each other, unless it can be shown from the
purpose of the wall that it had been made
for the exclusive benefit of one
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
*The seven enumerated signs are not
limitative
Art. 661. Ditches or drains opened
between two estates are also presumed as
common to both, if there is no title or sign
showing the contrary.
There is a sign contrary to the part-
ownership whenever the earth or dirt
removed to open the ditch or to clean it is
only on one side thereof, in which case the
ownership of the ditch shall belong
exclusively to the owner of the land having
this exterior sign in its favor. (574)
PARTY DITCHES OR DRAINS – the
presumption of party wall applies to ditches
and drains opened between two estates
REBUTTABLE PRESUMPTION – the
presumption is also rebuttable (juris
tantum) Thus if a deposit of dirt is on one
side alone, the owner of that side is
considered the owner of the ditch
Note: some scrupulous persons however
deposit dirt voluntarily not on their side,
but on the opposite side of ditch
*If there are party walls there are also
common ditches or drains. When theses
ditches or drains are located between the
two estates belonging to different owners,
they are presumed to be common, unless
there is a title or sign to the contrary. If with
title, belongs to the owner. If no title,
determined by presence of exterior signs
Art. 662. The cost of repairs and
construction of party walls and the
maintenance of fences, live hedges,
ditches, and drains owned in common,
shall be borne by all the owners of the
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lands or tenements having the party wall
in their favor, in proportion to the right of
each.
Nevertheless, any owner may exempt
himself from contributing to this charge by
renouncing his part-ownership, except
when the party wall supports a building
belonging to him. (575)
*Proportionate contribution to repairs and
construction
WHEN RENUNCIATION CAN BE MADE:
It can be made, UNLESS:
1. The repair had already been
contracted for and made (for here,
he would still be liable to the
repairer)
2. He still uses the wall (as when it
supports his building) (If building
demolished, renunciation can be
made
REQUISITES FOR THE RENUNCIATION OF
THE SHARES:
1. Renunciation must be TOTAL
2. It must be made voluntarily
3. Must be made before expenses are
incurred
4. Made with the implied condition
that the owner should pay for the
repairs. Thus if repairs are not
made, it is as if no renunciation had
been done, and the co-ownership
remains. Thus also if the neglect to
make the repairs makes the wall dall
co-ownership remains with the
felled or destroyed wall, each owner
being entitled to his share of
materials
5. Must be of both the share in the
wall and the share in the land, for
the wall cannot be used without the
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PROPERTY REVIEWER
land. However, the wall is to be
removed to some other place, there
need not be renunciation of the land
originally used
Art. 663. If the owner of a building,
supported by a party wall desires to
demolish the building, he may also
renounce his part-ownership of the wall,
but the cost of all repairs and work
necessary to prevent any damage which
the demolition may cause to the party
wall, on this occasion only, shall be borne
by him. (576)
*Indemnification must be made for
damages (simultaneous damages or those
incurred immediately after and because of,
the demolition, not those which may occur
later on.
Art. 664. Every owner may increase the
height of the party wall, doing at his own
expense and paying for any damage which
may be caused by the work, even though
such damage be temporary.
The expenses of maintaining the wall in
the part newly raised or deepened at its
foundation shall also be paid for by him;
and, in addition, the indemnity for the
increased expenses which may be
necessary for the preservation of the party
wall by reason of the greater height or
depth which has been given it.
If the party wall cannot bear the increased
height, the owner desiring to 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 give
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the space required from his own land.
(577)
INCREASING THE HEIGHT OF A PARTY
WALL:
1. Must do so at his own expense
2. Must pay necessary damages
caused, even if the damage be
temporary
3. Must bear the costs of maintenance
of the portion ADDED
4. Must pay for the increased cost of
preservation
5. Must reconstruct if original wall
cannot bear the increased height
6. Must give additional space
necessary, if wall is to be thickened
*He will hoever be the EXCLUSIVE OWNER
of the ADDITIONS
Art. 665. The other owners who have not
contributed in giving increased height,
depth or thickness to the wall may,
nevertheless, acquire the right of part-
ownership therein, by paying
proportionally the value of the work at the
time of the acquisition and of the land
used for its increased thickness. (578a)
Art. 666. Every part-owner of a party wall
may use it in proportion to the right he
may have in the co-ownership, without
interfering with the common and
respective uses by the other co-owners.
(579a)
WHICH IS THE DOMINANT AND THE
SERVIENT OWNER?
They are both dominant and servient
owners.
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PROPERTY REVIEWER
FOR EXAMPLE, A PAID THE INCREASED
HEIGHT OF B, WOULD HE HAVE THE RIGHT
TO THE INCREASED WALL?
Yes since he paid for it.
SECTION 5. - Easement of Light and View
Art. 667. No part-owner may, without the
consent of the others, open through the
party wall any window or aperture of any
kind. (580)
EASEMENT OF LIGHT – jus luminum (as in
the case of small windows not more than
30cm square, at the height of the ceiling
joist, the purpose of which is to admit light
but not view
EASEMENT OF VIEW – servidumbre
prospectus as in the case of full or regular
windows overlooking the adjoining estate.
Easement of light is automatically included.
Is LV a continuous easement?
as in the case of full or regular windows
overlooking the adjoining estate. Easement
of light is automatically included.
Is LV a continuous easement?
Yes. It may be acquired by prescription.
PROHIBITION TO MAKE AN OPENING THRU
THE PARTY WALL:
EXAMPLE: A and B are co-owners of a party
wall. A can not make an opening on the wall
without the permission of B. If A were
allowd to do this (without B’s consent),
there is a distinct possibility that A will later
claim the whole wall as his is view of the
exterior sign. Moreover, it is as if A were
allowed to use the WHOLE thickness of the
wall.
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SUPPOSE IN THE EXAMPLE, A MAKES
OPENING WITHOUT B’S CONSENT, WHAT
WILL BE B’S RIGHT?
B can order that the opening be closed
unless of course a sufficient time for
prescription has elapsed – 10 years from
the opening of the window
Art. 668. The period of prescription for the
acquisition of an easement of light and
view shall be counted:
(1) From the time of the opening of
the window, if it is through a party
wall; or
(2) From the time of the formal
prohibition upon the proprietor of
the adjoining land or tenement, if
the window is through a wall on the
dominant estate. (n)
POSITIVE EASEMENT – if the window is thru
a party wall. Therefore, the prescription
commences from the time the window is
opened
*Mere opening of the window does not
create the easement; it is only when after a
sufficient lapse of time the window still
remains open, that the easement of light
and view is created
*extending on the adjoining land
NEGATIVE EASEMENT – if the window is
thru one’s own wall of the dominant estate.
Therefore, the time for the period of
prescription should begin from the time of
notarial prohibition upon the adjoining
owner. A public instrument which conforms
to form and substance.
ILLUSTRATIVE PROBLEMS:
a. A and B own a party wall. A, without
B’s consent, made an opening in the
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PROPERTY REVIEWER
party wall on December 9, 2002. In
2003, may B still close the opening?
Yes, for no easement has yet
been acquired by A.
b. In the preceeding example, can B
close the window on December 10,
2012?
No more, for more than 10
years have elapsed; and A has
already acquired the easement
c. A and B are adjoining owners. In
2002, A made an opening in his own
wall. In 2007, A makes a formal
notarial demand on B prohibiting
him to obstruct the view. In 2013,
may B still setup an obstruction?
Yes, because although more
than 10 years had elapsed since the
opening of the window, still less
than 10 years have elapsed since the
notarial prohibition. Remember that
A is trying to obtain is a negative
easement. Indeed no true easement
has yet been acquired. No existe
verdadera servidumbre existe el
derecho de impeder su uso – there is
no true servitude or easement so
long as the right to prevent its use
exists.
Art. 669. When the distances in Article 670
are not observed, the owner of a wall
which is not party wall, adjoining a
tenement or piece of land belonging to
another, can make in it openings to admit
light at the height of the ceiling joints or
immediately under the ceiling, and of the
size of thirty centimeters square, and, in
every case, with an iron grating imbedded
in the wall and with a wire screen.
Nevertheless, the owner of the tenement
or property adjoining the wall in which the
openings are made can close them should
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he acquire part-ownership thereof, if there
be no stipulation to the contrary.
He can also obstruct them by constructing
a building on his land or by raising a wall
thereon contiguous to that having such
openings, unless an easement of light has
been acquired. (581a)
REGULAR – light and view
IRREGULAR – light only
RESTRICTED WINDOWS – for light not view
RESTRICTION THEMSELVES:
1. Maximum sie – 30cm square
2. There must be an iron grating
imbedded in the wall
3. There must be a wire screen
4. The opening must be at the height
of the ceiling joists or immediately
under the ceiling
RULE WHEN PROPER DISTANCES ARE
OBSERVED - When the distances are as
given in Art 670, bigger or regular windows
may be opened without the restrictions
given above.
SANCTIONS IN CASE OF VIOLATIONS – A
HAS MADE RESTRICTED WINDOWS ON HIS
OWN WALL FOR LIGHT. WHAT CAN THE
ADJOINING OR ABUTTING OWNER DO?
a. He can obstruct the light
1. By constructing a higher building
on his own land
2. Or by raising a blocking wall (in
both cases he cannot make the
obstruction if the easement of
light has been acquired – 10
years after notarial prohibition
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PROPERTY REVIEWER
b. If the wall becomes a PARTY WALL,
he can close the window, unless
there is a stipulation to the contrary
*May be acquired by prescription
Art. 670. No windows, apertures,
balconies, or other similar projections
which afford a direct view upon or towards
an adjoining land or tenement can be
made, without leaving a distance of two
meters between the wall in which they are
made and such contiguous property.
Neither can side or oblique views upon or
towards such conterminous property be
had, unless there be a distance of sixty
centimeters.
The nonobservance of these distances
does not give rise to prescription. (582a)
Art. 671. The distance referred to in the
preceding article shall be measured in
cases of direct views from the outer line of
the wall when the openings do not project,
from the outer line of the latter when they
do, and in cases of oblique view from the
dividing line between the two properties.
(583)
RULES FOR REGULAR WINDOWS:
a. Art 670 and 671 deal with regular,
full windows (as distinguished from
restricted windows referred to in Art
669)
b. Regular windows can be opened
provided that the proper distances
are followed
PROPER DISTANCES:
a. For windows having direct (face to
face) views, observe at least 2
meters distance between the wall
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having the windows and the
boundary line
b. For windows having side or oblique
views, (that is, one must turn his
head to the right or left to view the
adjoining land), observe a distance
of atleast 60cm between the
boundary line and nearest edge of
the window
NOTE: The distance is shorter for
oblique or sideviews because of the
difficulty of overlooking.
BUILDING RIGHT ON BOUNDARY LINE:
It is permissible to build even up to the
boundary line provided that NO regular
windows are opened
PROBLEMS:
1. On his wall, one meter away from
the boundary line, A opened regular
windows with direct views. May A
be ordered to close them, at any
time?
ANSWER: A may be ordered to close
them, provided that the adjoining
owner makes the demand for the
closure within the period of 10 years
from the opening of the window,
otherwise his right of closure will be
deemed prescribed.
WHAT IS MEANT BY NON OBSERVANCE OF
THESE DISTANCES DOES NOT GIVE RISE TO
PRESCRIPTION?
This merely means that the mere non-
observance of theses distances does not
five rise to prescription because the thing is
a negative easement, a notarial prohibition
is still required before the period of
prescription will commence to run. Does
the clause mean that the right to demand
the closure of violating windows never
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PROPERTY REVIEWER
prescribe? Certainly not, although the
contrary view has been expressed by a
member of the Code Commission, who has
opined that the ruling in Soriano, is wrong
and precisely to reverse said rule is the
purpose of the sentence, the non-
observance of the distances does not give
rise to prescription.
RULE AS TO TERRACES:
Art 670 applies to terraces, if there are
railings (since railings are protection to
viewers), but not if there are no railings
(since the lack of protection makes difficult
their use as windows)
WHEN ARTICLE DOES NOT APPLY: does not
apply to the case in 672.
Art. 672. The provisions of Article 670 are
not applicable to buildings separated by a
public way or alley, which is not less than
three meters wide, subject to special
regulations and local ordinances. (584a)
Art. 673. Whenever by any title a right has
been acquired to have direct views,
balconies or belvederes overlooking an
adjoining property, the owner of the
servient estate cannot build thereon at less
than a distance of three meters to be
measured in the manner provided in
Article 671. Any stipulation permitting
distances less than those prescribed in
Article 670 is void. (585a)
JQ’S OPINION: It includes water tank
BELVERDES – Italian, Fairview, veranda
If the distance is less than 3 meters – void
More than 3 meters – valid
RULE WHEN A RIGHT HAS BEEN ACQUIRED
TO HAVE A DIRECT VIEW:
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it is a true servitude unlike 669 and 670
which do not really refer to easements
since both owners are prohibited.
EXAMPLES:
A and B are adoining owners. By virtue of a
contract, B agreed to give A an easement of
view over his (B’s) land. In the absence of
any stipulation about DISTANCE, B (the
servient owner) cannot construct a building
on his own land at less a distance of 3m
from the boundary line (computed
according to 671). However, the distance
may be increased or decreased provided
that the MINIMUM distances, prescribed in
670 are observed. The same may be said of
an easement of view acquired by
prescription.
APPLICABILITY OF 673 TO EASEMENTS
OBTAINED UNDER 624.
Article 673 even when the easement has
been acquired under 624. Thus if an estate
has an easement of light and view under
624, the neighbour cannot construct on his
lot unless he observes the 3m rule.
SECTION 6. - Drainage of Buildings
Art. 674. The owner of a building shall be
obliged to construct its roof or covering in
such manner that the rain water shall fall
on his own land or on a street or public
place, and not on the land of his neighbor,
even though the adjacent land may belong
to two or more persons, one of whom is
the owner of the roof. Even if it should fall
on his own land, the owner shall be
obliged to collect the water in such a way
as not to cause damage to the adjacent
land or tenement. (586a)
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PROPERTY REVIEWER
*Even without the easement, we still have
the obligation for the rainwater to fall on
our own land
RESTRICTIONS WITH RESPECT TO
EASEMENT OF DRAINAGE OF BUILDINGS:
1. A person should let rain water FALL
on his own land, and not on the
adjacent land, even if he be the co-
owner of the latter
2. Rain water must be COLLECTED
instead of being allowed to drift to
the adjacent of lower land
EMILIO V PAREDES:
FACTS: When the lot of Emilio was
registered under the Torrens system, there
was an express recognition in the Decree of
Registration that Emilio’s lot was subject to
an easemtn of drainage over a portion of
said lot 8 ½ meters long, and one meter
wide so that rain water coming from the
roof of a building to be constructed on the
adjoining lot would fall into the land of
Emilio. The easement was thus in favor of
the adjoining lot belonging to Paredes.
Later, Paredes constructed a building with a
roof protruding over the lot of Emilio.
ISSUE: Did Paredes hav a right to construct
a building with a roof protruding over
Emilio’s lot in the dimensions mentioned in
the Decree of Registration
HELD: No, Paredes had no such right to
construct a protruding roof. The
encumbrance is not the roof itself but the
falling of the rainwater inside Emilio’s land.
The distances prescribed in the Decree
therefore did not refer to the protrusion of
the width and length of the roof, but to the
distance of the rainwater falling on the
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adjacent lot. The roof of Paredes must
therefore be reconstructed.
NOT REALLY AN EASEMENT:
Article 674 does not really create an
easement, for it merely regulates the use of
a person’s property insofar as rainwater is
concerned
Art. 675. The owner of a tenement or a
piece of land, subject to the easement of
receiving water falling from roofs, may
build in such manner as to receive the
water upon his own roof or give it another
outlet in accordance with local ordinances
or customs, and in such a way as not to
cause any nuisance or damage whatever to
the dominant estate. (587)
WHAT IF AN WATER CANNOT BE
CONTAINED, WHAT WILL YOU DO?
Have an outlet.
IF IT TRAVERSE ON ANOTHER ESTATE?
It is allowed via demand and to pay for
indemnity and should be done as the least
prejudicial to the servient estate.
*If it is imputable to one owner, it is not a
legal easement anymore but a voluntary
one
RULE WHEN A TENEMENT OR LAND IS
SUBJECT TO THE EASEMENT OF RECEIVING
WATER FALLING FROM ROOFS
The easement referred to in Art 676 may be
complied with by following art 675.
This article may also apply to easements
Art. 676. Whenever the yard or court of a
house is surrounded by other houses, and
it is not possible to give an outlet through
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PROPERTY REVIEWER
the house itself to the rain water collected
thereon, the establishment of an easement
of drainage can be demanded, giving an
outlet to the water at the point of the
contiguous lands or tenements where its
egress may be easiest, and establishing a
conduit for the drainage in such manner as
to cause the least damage to the servient
estate, after payment of the property
indemnity. (583)
OUTLET OF RAIN WATER THROUGH A
SURROUNDING HOUSES
This is similar to the compulsory easement
of right of way
CONDITIONS:
1. Because of enclosure, there is no
adequate outlet for rain water
2. The outlet must be at the point of
easiest egress (going out)
3. Least possible damage
4. Payment of proper indemnity
SECTION 7. - Intermediate Distances
and Works for Certain Constructions and
Plantings
Art. 677. No constructions can be built or
plantings made near fortified places or
fortresses without compliance with the
conditions required in special laws,
ordinances, and regulations relating
thereto. (589)
FORTIFIED PLACES – place established by
the government for security purposes
EXAMPLES:
Malacanang, Fort Santiago, Fort Magsaysay,
Camp Aguinaldo, Airport, Palace
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REMEDY OF 677: Government should come
up with laws and regulations in matters
pertaining to fortresses
Art. 678. No person shall build any
aqueduct, well, sewer, furnace, forge,
chimney, stable, depository of corrosive
substances, machinery, or factory which by
reason of its nature or products is
dangerous or noxious, without observing
the distances prescribed by the regulations
and customs of the place, and without
making the necessary protective works,
subject, in regard to the manner thereof,
to the conditions prescribed by such
regulations. These prohibitions cannot be
altered or renounced by stipulation on the
part of the adjoining proprietors.
In the absence of regulations, such
precautions shall be taken as may be
considered necessary, in order to avoid
any damage to the neighboring lands or
tenements. (590a)
*Environmental laws and precautionary
measures
CONSTRUCTION OF AQUEDUCT, WELLS
SEWERS, ETC
Follow the distances prescribed by the
regulations and customs, if there be any,
otherwise take precautions
NO WAIVER – no waiver or alteration by
stipulation is allowed, REASON: public
safety
LIABILITY FOR DAMAGES – in case of
violation, liable for damages
Art. 679. No trees shall be planted near a
tenement or piece of land belonging to
another except at the distance authorized
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PROPERTY REVIEWER
by the ordinances or customs of the place,
and, in the absence thereof, at a distance
of at least two meters from the dividing
line of the estates if tall trees are planted
and at a distance of at least fifty
centimeters if shrubs or small trees are
planted.
Every landowner shall have the right to
demand that trees hereafter planted at a
shorter distance from his land or tenement
be uprooted.
The provisions of this article also apply to
trees which have grown spontaneously.
(591a)
*Easement because they prohibit property
owners (limitation)
RULES WITH RESPECT TO THE PLANTING
OF TREES:
Regarding distances, follow ordinances then
customs. If neither, distances must be
observed:
1. Tall trees – 2 meters from boundary
line to center of the tree
2. Small trees or shrubs – 50cm from
boundary line to center of tree or
shrub
REMEDY FOR VIOLATION – demand
uprooting of the tree or shrub
Art. 680. If the branches of any tree should
extend over a neighboring estate,
tenement, garden or yard, the owner of
the latter shall have the right to demand
that they be cut off insofar as they may
spread over his property, and, if it be the
roots of a neighboring tree which should
penetrate into the land of another, the
latter may cut them off himself within his
property. (592)
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 118
RULES REGARDING INTRUSIONS OR
EXTENSIONS OF BRANCHES AND ROOTS:
1. Branches – adjacent owner has the
right to DEMAND that they be cut
off
2. Roots – he may CUT them off
himself
PRESCRIPTION:
1. Of the right to demand the cutting
off of the branches – this does NOT
prescribe if tolerated by the owner;
if the demand is made, prescriptions
runs from the date of said demand
2. Of the right to cut off the roots –
this is imprescriptible unless a
notarial prohibition is made
RIGHT OF THE OWNER OF THE TREE: The
owner of the tree even if the branches and
roots have invaded the adjacent land can
cut down the tree himself for he owns the
tree
Art. 681. Fruits naturally falling upon
adjacent land belong to the owner of said
land. (n)
*NATURALLY falling, not by acts of man
*Mode of acquisition by operation of law
EXAMPLES:
X IS THE OWNER OF A GROVE OF MANGO
TREES, SOME OF THE BRANCHES IF WHICH
EXTEND OVER THE LAND OF B.
A. DOES B HAVE THE RIGHT TO
GATHER THE MANGO FRUITS ON
THE BRANCHES THAT EXTEND OVER
THE LAND OF B.
No, B has a right to the fruits that
have NOT YET naturally fallen on his
land
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PROPERTY REVIEWER
B. IN THE SAME CASE, BECAUSE OF
QUARELL BETWEEN A AND B,
UNRELATED TO TREES, B CUTS OFF
THE BRANCES IN SO FAR AS THEY
EXTEND TO HIS LAND, DOES A HAV
A RIGHT OF ACTION AGAINST B?
B is liable for cutting off the
branches. What he should have
done was to make a demand and
not just take the law into his own
hands. Demand first.
C. WOULD YOUR ANSWER BE
DIFFERENT IF, INSTEAD OF CUTTING
OFF THE PROTRUDING BRANCHES,
B HAD CUT OFF THE ROOTS OF THE
TREES WHICH PENETRATED INTO HI
SLAND, WITH THE SAME RESULT
THAT THE TREE STOPPED BEARING
FRUITS? EXPLAIN.
In the case of the roots, B had the
right to cut them since it is on his
own land.
SECTION 8. - Easement Against Nuisance
(n)
Art. 682. Every building or piece of land is
subject to the easement which prohibits
the proprietor or possessor from
committing nuisance through noise,
jarring, offensive odor, smoke, heat, dust,
water, glare and other causes.
REASON FOR PROHIBITING A NUISANCE: A
nuisance, among others, annoys or offends
the senses and it should therefore be
prohibited
SERVIENT AND DOMINANT ESTATES?
The proprietor or possessor of the building
or piece of land, who commits the nuisance
thru noise, jarring, offensive odor, etc is
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 119
SERVIENT in an easement against nuisance;
in another sense, the building or land itself
is the SERVIENT ESTATE, since the easement
is inherent in every building or land.
WHO IS THE DOMINANT IN AN EASEMENT
AGAINST NUISANCE?
The general public or anybody injured by
the nuisance.
WHAT ARE THE RIGHTS OF THE DOMINANT
ESTATE?
If the nuisance is a public nuisance, the
remedies are:
a. A prosecution under the Penal Code
b. Civil action
c. Abatement, without judicial
proceedings
If the nuisance is a private nuisance, the
remedies are:
a. Civil action
b. Abatement without judicial
proceedings
Art. 683. Subject to zoning, health, police
and other laws and regulations, factories
and shops may be maintained provided
the least possible annoyance is caused to
the neighborhood.
*This is a misplaced provision
*Even glare is a nuisance, halogen light is a
nuisance
SECTION 9. - Lateral and Subjacent Support
(n)
*Prohibition against excavations
Sec. 684. No proprietor shall make such
excavations upon his land as to deprive
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PROPERTY REVIEWER
any adjacent land or building of sufficient
lateral or subjacent support.
*Not limited to owner
*Support is lateral when both land
supported and supporting land are on the
SAME PLANE
*Subjaent land abover supporting land –
SUBJACENT LAND
THE EASEMENT OF LATERAL AND
SUBJACETN SUPPORT IS NOT A TRUE
EASEMENT – it is again doubtful whether
the easement for lateral or subjacent
support are true easements for, while they
are restrictions on ownership, still even
without a prohibition by the dominant
estate, the elimination of such support
would be unlawful.
WHAT IS THE OBLIGATION OF THE OWNER
OF THE ESTATE?
Send notices to all owners, neighbours, to
protect themselves. If it does not agree,
injunction.
REMEDIES FOR INFRACTION – damages
EXAMPLE:
1. Of lateral support: While a person
may excavate on his own land, he
cannot do so if by such action,
adjacent buildings would collapse or
adjacent lands crumble.
2. Of subjacent support: A owns a
parcel of land with a hous, but
underneath, the soil is being used by
B in connection with a tunnel. B
must not undermine the support of
the house by building the tunnel
very close underneath the house.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 120
Art. 685. Any stipulation or testamentary
provision allowing excavations that cause
danger to an adjacent land or building shall
be void.
REASON: A person is protected even
against his own folly, in the interest of
public safety
Art. 686. The legal easement of lateral and
subjacent support is not only for buildings
standing at the time the excavations are
made but also for constructions that may
be erected.
*Prophetic, futuristic
Art. 687. Any proprietor intending to make
any excavation contemplated in the three
preceding articles shall notify all owners of
adjacent lands.
NOTIFICATION RE INTENDED
EXCAVATIONS:
a. Notice is not required, if there is
actual knowledge of the excavation..
otherwise, notice is mandatory
b. Even if there be notice, the
excavation should not deprive other
owners of lateral or subjacent
support. This is true even if the
other consent.
c. Notice is required to enable
adjoining owners to take proper
precautions
MAY A USUFRUCTUARY OR A POSSESSOR
IN GOOD FAITH MAKE EASEMENT?
No.
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PROPERTY REVIEWER
WHAT KIND OF EASEMENT MAY CAUSE
INJURY TO USUFRUCTUARY?
Impositipon of perpetual or permanent
easement
WHAT ARE THE LIMITATIONS OF
VOLUNTARY EASEMENTS?
1. Not prejudicial
2. Not contrary to public morals, order,
policy, etc
CONSENT ON LEGAL EASEMENT IS NOT
REQUIRED BECAUSE IT IS IMPOSED BY
LAW.
CHAPTER 3
VOLUNTARY EASEMENTS
Art. 688. Every owner of a tenement or
piece of land may establish thereon the
easements which he may deem suitable,
and in the manner and form which he may
deem best, provided he does not
contravene the laws, public policy or public
order. (594)
*VOLUNTARY EASEMENT – established by
agreement of the parties, may be done only
by the owner or with authority from the
owner. It is an act of ownership.
WHO ACTS FOR THE DOMINANT ESTATE?
The person to act for the dominant estate
must be the OWNER or somebody else, in
the name and with authority of the
OWNER.
Art. 689. The owner of a tenement or piece
of land, the usufruct of which belongs to
another, may impose thereon, without the
consent of the usufructuary, any
servitudes which will not injure the right of
usufruct. (595)
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 121
PROPERTY REVIEWER

Art. 690. Whenever the naked ownership

of a tenement or piece of land belongs to
one person and the beneficial ownership
to another, no perpetual voluntary
easement may be established thereon
without the consent of both owners. (596)
Art. 691. In order to impose an easement
on an undivided tenement, or piece of
land, the consent of all the co-owners shall
be required.
The consent given by some only, must be
held in abeyance until the last one of all
the co-owners shall have expressed his
conformity.
But the consent given by one of the co-
owners separately from the others shall
bind the grantor and his successors not to
prevent the exercise of the right granted.
(597a)
Art. 692. The title and, in a proper case,
the possession of an easement acquired by
prescription shall determine the rights of
the dominant estate and the obligations of
the servient estate. In default thereof, the
easement shall be governed by such
provisions of this Title as are applicable
thereto. (598)

Art. 693. If the owner of the servient

estate should have bound himself, upon
the establishment of the easement, to
bear the cost of the work required for the
use and preservation thereof, he may free
himself from this obligation by renouncing
his property to the owner of the dominant
estate.

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 122
NUISANCE
Art. 694. A nuisance is any act, omission,
establishment, business, condition of property,
or anything else which:
(1) Injures or endangers the health or safety
of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or
morality; or
(4) Obstructs or interferes with the free
passage of any public highway or street, or any
body of water; or
(5) Hinders or impairs the use of property.
----------------------------------------------------------------
DIFFERENTIATE TRESPASS FROM NUISANCE
*In Trespass, there is an entry to one’s property
that impairs the use of the property while in
Nuisance, entry to one’s property is not
necessary because it is the use of one’s
property which cause injury to another
property. In trespass, the injury is immediate
and direct while in nuisance, the injury is
consequential.
----------------------------------------------------------------
WHAT ARE THE CAUSES OR SOURCES OF
NUISANCE?
(1) Injures or endangers the health or safety of
others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or
morality; or
(4) Obstructs or interferes with the free
passage of any public highway or street, or any
body of water; or
(5) Hinders or impairs the use of property.
Etymology of nuisance:
Derived from the French word nuire or Latin
word nocumentum, which means to harm or to
injure.
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PROPERTY REVIEWER
Injures or endangers the health or safety of
others.
Example:
Safety:
Manhole
Firework factories
Dangerous excavations
Health:
Factory of rugby
Shabu laboratory
- Is considered nuisance because its
existence, the use of such would
endanger the life of other people
Annoys or offends the senses
What is the test: In order to be considered as a
nuisance which causes annoyance or offense to
senses, the effect produced to a person is under
normal circumstances and condition and not
by their effect upon over-sensitive reactions.
Example:
Cooking of “tuyo” in a squatters area and in an
exclusive subdivision. Which is considered a
nuisance?
Under the circumstances, the cooking
of tuyo in an exclusive subdivision may be
considered a nuisance considering the course of
lifestyle established in such place in distinction
with the cooking in the squatters area as they
are already immune to it.
In fine, to consider it as annoying or offending
to senses, it is made dependent upon the
normal condition and circumstances of the
people experiencing it.
*Bumbay smell, still falls on annoying but you
cannot abate the person. Hehe.
*Noise
Test: it must be deafening, loud and excessive
which would produce actual physical discomfort
and annoyance to a person of ordinary
sensibilities, rendering adjacent property less
comfortable and valuable.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 123
Shocks, defies or disregards decency or
morality
Decency and Morality
DECENCY is propriety of behavior or demeanor
shown by respect and compliance with
recognized notions of modesty and delicacy.
MORALITY is the observance of what is right
and the avoidance of what is evil.
ARE MOTELS PER SE NUISANCE?
Generally, motels are not nuisance but if they
are conducted in manner contrary to public
policy or it go beyond the limitations of law,
they will be regarded as nuisance.
Classmates, Pegasus, not nuisance because they
are legal but it is only their front.
Case:
WHITE LIGHT CORPORATION, TITANIUM
CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO,
MAYOR ALFREDO S. LIM, Respondent.
FACTS: City Mayor Alfredo Lim signed into a law
an ordinance which prohibits short time
admission in hotels, motels, lodging houses,
pension houses and similar establishments in
the City of Manila. The petitioner filed a
complaint contending that the ordinance
directly affects their business interests as
operators of drive-in-hotels and motels in
Manila. Being such, it must be declared invalid
an unconstitutional as it constitute an invalid
exercise of police power.
ISSUE: WON the ordinace is a valid exercise of
police power
HELD: The ordinance is NOT valid. The SC
upheld the decision of the RTC. The ordinance
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PROPERTY REVIEWER
"strikes at the personal liberty of the individual
guaranteed and jealously guarded by the
Constitution." To be candid about it, the oft-
quoted American maxim that "you cannot
legislate morality" is ultimately illegitimate as a
matter of law, since as explained by Calabresi,
that phrase is more accurately interpreted as
meaning that efforts to legislate morality will
fail if they are widely at variance with public
attitudes about right and wrong.
Even as the implementation of moral norms
remains an indispensable complement to
governance, that prerogative is hardly absolute,
especially in the face of the norms of due
process of liberty. And while the tension may
often be left to the courts to relieve, it is
possible for the government to avoid the
constitutional conflict by employing more
judicious, less drastic means to promote
morality.
WE CANNOT LEGISLATE MORALITY.
Obstructs or interferes with the free passage
of any public highway or street, or any body of
water.
*Water – is always owned by the State
Example:
Sidewalk vendor- obstruct passageway
for pedestrian
Squatters on estero- obstruct the
passageway of water
Billboards- 2 point of views
Adverstisers: not a nuisance
Under the Building Code: it must not
cause a hindrance
Pink urinals are also nuisance
Terminals
Hinders or impairs the use of property.
(PRIVATE PROPERTY)
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 124
----------------------------------------------------------------
DISTINCTION BETWEEN PARAGRAPH 4 AND 5:
Paragraph 4 includes public highways and
bodies of waters owned by the State. Paragraph
5 are properties owned by private individual.
----------------------------------------------------------------
*Procession or parade Is NOT a nuisance but if
they are disturbing, yes.
*Greetings of government official – depends
upon normal circumstances, generally NOT.
*Internet café with cybersex, nuisance
Art. 695. Nuisance is either public or private.
A public nuisance affects a community or
neighborhood or any considerable number of
persons, although the extent of the
annoyance, danger or damage upon
individuals may be unequal. A private nuisance
is one that is not included in the foregoing
definition.
KINDS OF NUISANCE ACCORDING TO THEIR
SCOPE OF INJURY:
1. Public Nuisance (common) - is one
which affects a community or
neighborhood or considerable number
of persons.
2. Private Nuisance- is one which affects
an individual or few persons only
IS THE NUMBER OF PERSONS AFFECTED THE
BASIS OF CLASSIFYING THE NUISANCE AS
PUBLIC OR PRIVATE?
To qualify whether it is a public or private
nuisance is to consider the over-all effect of the
nuisance in the community. Being so, it
categorically means that even if the nuisance
may seem to effect only one person but if any
person who will come to the place will be
adversely affected, it is a public nuisance not a
private one, notwithstanding the effect of it to
only one person.
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PROPERTY REVIEWER
Kinds of Nuisance According to its nature:
1. Nuisance Per Se (Nuisance at law)- the
kind of nuisance which is always a
nuisance. By its nature it is always a
nuisance at all times and under any
circumstances regardless of location or
surroundings.
2. Nuisance Per Accidens (Nuisance in
fact) - the kind of nuisance by reason of
location, surrounding or in the manner
it is conducted or managed.
HOW WOULD YOU KNOW IF IT IS A PUBLIC OR
PRIVATE NUISANCE?
If it affects public place even if it is less in
number
*Lawful business may become a nuisance.
Plastic factory in residential area. Nuisance.
----------------------------------------------------------------
Distinguish Nuisance per se from nuisance
accidens:
Nuisance per se is considered a nuisance on the
basis of its nature. It is at all times considered as
such regardless of the location, manner it is
conducted or managed or its surrounding. On
the other hand, nuisance per accidens is a
nuisance that is initially not considered as a
nuisance, but because of its location, manner it
was conducted or its surrounding
circumstances, it is classified as a nuisance.
----------------------------------------------------------------
Example:
House of Prostitution: Nuisance Per se
- Regardless of its location, it is a
nuisance per se because at all times, it
shocks, defies or disregard decency and
morality.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 125
Piggery:
When located in a residential house, it is a
nuisance per accidens because it is unusual to
put up a piggery in a residential house as it will
annoy sense but if located in a province away
from a populated place is not a nuisance.
What kind of nuisance is subject to summary
abatement?
*summary abatement means no judicial
proceeding
Only nuisance per se may be summarily abated
because its effect is immediate and the safety
of the person or property is immediately
affected.
Only nuisance per se – based on
necessity
*Nuisance per accidens – notice and hearing
HOW WOULD YOU KNOW IF IT IS A NUISANCE
PER SE OR ACCIDENS?
Proof or evidence of existence
How is nuisance accidens abated?
Unlike nuisance per se which may be summarily
abated, of the nuisance is classified as nuisance
per accidens may only be abated following the
principle of due process. There must be a
reasonable notice to the person alleged to be
maintaining or doing it and a hearing before a
tribunal.
Why is it that only Nuisance per se can be
summarily abated when both nuisance per se
and nuisance per accidens affect or impair the
use of property and safety of person?
This is so because, the nuisance per se is
considered nuisance at all times and need not
to consider its location, manner it was
conducted or its surrounding circumstances and
to under go the twin process of due process will
just put the person or property more in danger,
while nuisance per accidens are just
accidentally considered as nuisance because of
its location, manner it was conducted or
managed that is why it is imperative to inform
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PROPERTY REVIEWER
the person mainting the supposed nuisance
that it is a nuisance and affect other person or
property and to decide whether it is a nuisance
or not is to be placed under the proper
authority.
Can a lawful business be a nuisance?
Yes. Whether a lawful business may be
considered as a nuisance or not is dependent on
the surrounding circumstances. If the conduct
of the business causes grave inconveniences
and discomfort to others, then it is a nuisance
and must be abated regardless of its legality.
What is the Attractive Nuisance Doctrine:
One who maintains on his estate or premise an
attractive nuisance without exercising due care
to prevent children from playing therewith or
resorting thereto is liable to a child of tender
years who is injured even if the child is
technically trespasser in the premises.
*an ATTRACTIVE NUISANCE is any dangerous
instrumentality which is likely to attract children
at play
EXAMPLES:
1. Electricfan
2. Switch
3. Sand
4. Lumber
WHAT IS THE REASON FOR THIS DOCTRINE?
Attracts or entices the kid to approach and play
PER SE – res ipso loquitor
NOTE: IN OUR JURISDICTION, BODIES OF
WATER ARE NOT CONSIDERED NUISANCE.
WHAT IS THE LIABILITY OF THE ONE WHO
MADE THE NUISANCE?
Liable for any resulting damages. Lessee
maintained it, he is also solidarilty liable.
CASE:
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 126
HIDALGO ENTERPRISES, INC., petitioner, vs.
GUILLERMO BALANDAN, ANSELMA ANILA and
THE COURT OF APPEALS, respondents.
FACTS: Hidalgo Enterprises, Inc. "was the owner
of an ice-plant factory in the City of San Pablo,
Laguna, in whose premises were installed two
tanks full of water, nine feet deep, for cooling
purposes of its engine. While the factory
compound was surrounded with fence, the
tanks themselves were not provided with any
kind of fence or top covers.
Mario Balandan, a boy barely 8 years old, while
playing with and in company of other boys of
his age, entered the factory premises through
the gate, to take a bath in one of said tanks; and
while thus bathing, Mario sank to the bottom of
the tank, only to be fished out later, already a
cadaver, having died of `asphyxia secondary to
drowning.
The parents of the son sought for damages.
ISSUE: WON the tanks maintained is an
attractive nuisance
HELD: "Nature has created streams, lakes and
pools which attract children. Lurking in their
waters is always the danger of drowning.
Against this danger children are early instructed
so that they are sufficiently presumed to know
the danger; and if the owner of private property
creates an artificial pool on his own property,
merely duplicating the work of nature without
adding any new danger, . . . (he) is not liable
because of having created an `attractive
nuisance.' Anderson vs. Reith-Riley Const. Co.,
N. E., 2nd, 184, 185; 184, 185; 112 Ind. App.,
170.
Therefore, as petitioner's tanks are not
classified as attractive nuisance, the question
whether the petitioner had taken reasonable
precautions becomes immaterial. And the other
issue submitted by petitioner - that the parents
of the boy were guilty of contributory
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PROPERTY REVIEWER
negligence precluding recovery, because they
left for Manila on that unlucky day leaving their
son under the care of no responsible individual -
needs no further discussion.
The doctrine may be stated, in short, as follows:
One who maintains on his premises dangerous
instrumentalities or appliances of a character
likely to attract children in play, and who fails to
exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable
to a child of tender years who is injured
thereby, even if the child is technically a
trespasser in the premises.
The principal reason for the doctrine is that the
condition or appliance in question although its
danger is apparent to those of age, is so
enticing or alluring to children of tender years
as to induce them to approach, get on or use it,
and this attractiveness is an implied invitation
to such children.
Now, is a swimming pool or water tank an
instrumentality or appliance likely to attract
little children in play? In other words is the body
of water an attractive nuisance? The great
majority of American decisions say no.
"The attractive nuisance doctrine generally is
not applicable to bodies of water, artificial as
well as natural, in the absence of some unusual
condition or artificial feature other than the
mere water and its location."
Art. 696. Every successive owner or possessor
of property who fails or refuses to abate a
nuisance in that property started by a former
owner or possessor is liable therefor in the
same manner as the one who created it.
What is the duty of the subsequent owner or
possessor of a property causing nuisance?
When there is a nuisance on a property created
or caused by the former owner or possessor,
the subsequent owner or possessor, who having
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 127
PROPERTY REVIEWER

full knowledge of the existence of the nuisance private nuisance is not extinguished by
must remove the nuisance. prescription, prescription will not lie for the
maintenance of nuisance.
Note:
G.R. :the liability of the creator and the one who *Abatement of nuisance does NOT prescribe.
maintains it is solidary You can still file.
XPN: if the parties acted independently of one
another without any concerted activity action
or common design, each one is liable only for What are the remedies against public
his individual act which contributed to the nuisance?
injury.
Art. 699. The remedies against a public
What is the effect if the nuisance is not nuisance are:
removed?
The creator or the one who knowingly (1) A prosecution under the Penal Code or
maintains it will be liable for damages and may any local ordinance: or
be held criminally liable. (2) A civil action; or
(3) Abatement, without judicial proceedings.
What is the rule in case of a lessee and
purchaser?
They may only be held liable if they knowingly Note:
maintain the nuisance on the property leased or Only PUBLIC NUISANCE, offenses against the
bought. State, may be the subject of a criminal
prosecution which may be authorized under a
Art. 697. The abatement of a nuisance does penal or an ordinance of a city or municipality.
not preclude the right of any person injured to
recover damages for its past existence.
What are the requisite for Extra Judicial
Can the action for abatement and damages be Abatement of Nuisance:
both sought? 1.there must be a necessity to justify the
Yes, the remedies of abatement and damages abatement.
are cumulative, that is, both may be demanded. 2.it must be exercised reasonably and
If the nuisance had already been abated and no efficiently.
longer exists, the aggrieved person may still
pursue a civil action for damages for the injuries
suffered during the existence of the nuisance. Note:
Under the RPC, there is no specific provision
Art. 698. Lapse of time cannot legalize any defining nuisance as a crime, but criminal action
nuisance, whether public or may be resort to because of the effects brought
private. by the nuisance, to wit:
- Alarms and scandals
CAN A NUISANCE BE LEGALIZED BY LAPSE OF - Malicious mischief
TIME? - Obscene publication
No. Lapse of time cannot legalize a nuisance, - Illegal discharge of firearms
whether public or private. Nuisances have the - Vagrancy and prostitution
element of criminality which cannot be - Unjust vexation
tolerated by law. An action to abate a public or

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 128
Is the owner of the nuisance property entitled
to compensation?
NO. the owner of the property which is abated
by destruction is not entitled to property. The
reasons are clear. The destruction of the
property is anchored to police power and not to
power of eminent domain. The purpose of
destruction is not for public use but for public
safety. Accordingly, the law does not grant an
favor to a person maintaining a nuisance which
affect the safety or use of property of others.
VIOLATION OF GARBAGE LAWS
Environmental laws
Art. 700. The district health officer shall take
care that one or all of the remedies against a
public nuisance are availed of.
What is the duty of District Health officer?
It is the duty of the district health officer to take
care that one or all of the remedies against
public nuisance are availed of.
Is the rule absolute?
No. cases like illegal constructions or houses on
public streets, the proper official is the City
Engineer.
What if the District Health Officer or the City
Engineer, as the case may be is not consulted
prior to the abatement, is the person doing the
abatement liable?
No. The person doing so is not necessarily
liable. They would only be held liable for
damages if later on it will be declared that what
is sought to be a nuisance is not a nuisance at
all.
Art. 701. If a civil action is brought by reason
of the maintenance of a public nuisance, such
action shall be commenced by the city or
municipal mayor.
Art. 702. The district health officer shall
determine whether or not abatement, without
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judicial proceedings, is the best remedy against
a public nuisance.
*Police power is the basis of the abatement. It
should be reasonably done.
Who shall file a civil action against public
nuisance?
When the nuisance is public in character
affecting the community, it is the mayor or the
governor as the case may be who is required to
– commence an action against a public nuisance.
*Jurisdiction of abatement of nuisance
is lodge in the RTC
Note:
Whether it is the district health officer or the
city engineer who shall determine the best
remedy depends on the kind of nuisance. That
is to say, if the nuisance concerns cinstruction,
the proper official is he City Engineer.
Art. 703. A private person may file an action
on account of a public nuisance, if it is specially
injurious to himself.
EXAMPLE: oil spill
Art. 704. Any private person may abate a
public nuisance which is specially injurious to
him by removing, or if necessary, by destroying
the thing which constitutes the same, without
committing a breach of the peace, or doing
unnecessary injury. But it is necessary:
(1) That demand be first made upon the
owner or possessor of the property to abate
the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the
district health officer and executed with the
assistance of the local police; and
(4) That the value of the destruction does not
exceed three thousand pesos.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 129
May a private person file an action against
public nuisance?
Yes. Generally, an action against public nuisance
in order to prosper must be commenced by the
city mayor or governor as the case may be.
However, the rule is not absolute. Being that so,
the law allows the private individual to
commence an action against a public nuisance if
the private person has sustained a special and
definite harm from a public nuisance. This
means that it is specially injurious to him,
subject to the following conditions:
(1) That demand be first made upon the
owner or possessor of the property to abate the
nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the
district health officer and executed with the
assistance of the local police; and
(4) That the value of the destruction does not
exceed three thousand pesos.
What is the nature of action?
The action to be filed may be for injunction,
abatement or for damages.
*Subject to the condition that he must
show special damage to himself
What is the procedure of Abatement of a
public nuisance?
A private person may file an action for the
abatement of the nuisance without judicial
proceedings by:
1. Removing the thing which
constitutes the nuisance; or
2. Destroying the thing when
necessary without disturbing the
peace of the community, or doing
unnecessary injury.
After complying with the following rules:
(1) That demand be first made upon the
owner or possessor of the property to abate the
nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the
district health officer and executed with the
assistance of the local police; and
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(4) That the value of the destruction does not
exceed three thousand pesos.
What are the other restriction in allowing a
private individual file an action against public
nuisance?
1. The right to abate a public nuisance
must be resorted to only in case of
extreme necessity.
2. The right must ne exercise within a
reasonable time after the special injury
or arm had been suffered.
3. The means employed must be
reasonable.
4. The property must not be destroyed
unless necessary to eliminate the
nuisance.
*Ownership is NOT required for you to sue
nuisance.
What are the remedies against private
nuisance?
Art. 705. The remedies against a private
nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.
What are the defenses available or applicable
in private nuisance?
1. estoppel, public necessity
2. non-existence of nuisance
3. impossibility of batement
Art. 706. Any person injured by a private
nuisance may abate it by removing, or if
necessary, by destroying the thing which
constitutes the nuisance, without committing a
breach of the peace or doing unnecessary
injury. However, it is indispensable that the
procedure for extrajudicial abatement of a
public nuisance by a private person be
followed.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 130
Art. 707. A private person or a public official
extrajudicially abating a nuisance shall be
liable for damages:
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by
the courts to be not a real nuisance.
How is private nuisance abated?
Any person injured by a private nuisance may
abate it by removing, or if necessary, by
destroying the thing which constitutes the
nuisance, without committing a breach of the
peace or doing unnecessary injury after
complying with the following rules:
(1) That demand be first made upon the
owner or possessor of the property to abate the
nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the
district health officer and executed with the
assistance of the local police; and
(4) That the value of the destruction does not
exceed three thousand pesos.
When does a person who did the abatement
liable?
Generally, a person causing for the extra judicial
abatement of nuisance is not liable except:
1. if they caused unnecessary injury to
the property of the owner or
possessor; or
2. if the alleged nuisance is judicially
declared not a real nuisance.
What are the remedies of the owner of
property destroyed?
If the property owner believes that his property
is not a nuisance, he may:
1. go to court for the determination of the
status of the property as to whether it
is a nuisance or not;
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2. file an action for injunction or
prohibition with preliminary injunction
against the person threatening the
abatement to restrain them from
proceeding with the intended
abatement; or
3. a file a case of replevin if the property
was seized; or
4. sought for damages if the property is
destroyed or sold.
REGISTRY OF PROPERTY
Art. 708. The Registry of Property has for its
object the inscription or annotation of acts and
contracts relating to the ownership and other
rights over immovable property.
What is register?
1. The act of recording or annotating;
2. The book of registry;
3. The office concerned; or
4. The official concerned
REGISTRY – repository of public records. Only
immovables and real right may be recorded.
What are the purposes of registration?
1. To give notice to the whole world about
the true status of real property, and of
existing real rights.
2. To bind third persons who may come
and transact contracts on the property.
3. To prevent the perpetrations of frauds
by plugging loopholes which could
facilitate the unlawful transfers of
property.
What are the objects of Registry of Property?
The object of property is the inscription or
annotation of acts and contracts relating to the
ownership and other rights, mortgages,
contracts of lease of realty for more than one
year; deed of donation of realty, levy on
attachment of lands, levy on execution of lands.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 131
PROPERTY REVIEWER

*the proceedings for registration of lands are in

rem.

Art. 709. The titles of ownership, or of other

rights over immovable property, which are not
duly inscribed or annotated in the Registry of
Property shall not prejudice third persons.

*third person refers to persons who are not

parties to the act, contract, or deed registered.

If there is a conflict between an unrecorded

deed of sale of prior date and a recorded real
estate mortgage of latter date, which one DIFFERENT MODES OF ACQUIRING
prevails? OWNERSHIP
Although the deed of sale is not registered, it
will prevail over the registered real estate Art. 712. Ownership is acquired by
mortgage. This is so because the original owner occupation and by intellectual creation.
had already parted with his ownership over the Ownership and other real rights over property
property and therefore he no longer have the are acquired and transmitted by law, by
right of ownership and free disposal over it so donation, by estate and intestate succession,
as to be able to mortgage it. and in consequence of certain contracts, by
tradition.
Art. 710. The books in the Registry of They may also be acquired by means of
Property shall be public for those who have a prescription.
known interest in ascertaining the status of the
immovables or real rights annotated or
inscribed therein. (607) What are the modes of acquiring ownership?
1. Original mode: are those which do not
Art. 711. For determining what titles are arise or depend upon any pre-existing
subject to inscription or annotation, as well as right or title of another person.
the form, effects, and cancellation of a. Occupation
inscriptions and annotations, the manner of b. Intellectual creation
keeping the books in the Registry, and the c. Prescription
value of the entries contained in said books,
the provisions of the Mortgage Law, the Land 2. Derivative mode: are those which arise
Registration Act, and other special laws shall or depend upon pre-existing or
govern. preceding right or title of another
person.
a. Law
b. Donation
c. Succession
d. Tradition
e. Contracts

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 132
PROPERTY REVIEWER

Distinguish mode from title.

Mode is the process of acquiring or transferring
ownership while Title is the juridical justification Classification of real rights in the Civil Code:
for a mode. The cause in mode is proximate 1. Complete control and enjoyment:
while in title is remote. Mode directly produces a. Ownership
real right while title serves merely to give an b. Co-ownership
opportunity for the existence of a real right, c. Possession
thus only personal right is produced.
---------------------------------------------------------------- 2. Incomplete control and enjoyment:
a. Lease of real property
Is registration a mode of acquiring ownership? b. Usufruct
No. Registration merely confirms the existence c. Easements
of one’s ownership over a property with notice
to the whole world. Registration does not vest 3. Real rights of security or guaranty:
title. It is merely an evidence of such title over a a. Real estate mortgage
particular property. b. Chattel mortgage
c. Pledge
IS THERE INSTANCES WHEN TITLE BECOMES d. Antichresis
MODE?
Intestate succession. 4. Real rights of Re-acquisition of
property:
MODE VS TITLE: a. Pre-emption
Mode is the process of acquiring or transferring b. Redemption
ownership while title is the juridical
justification. Mode is the proximate cause while
in title, it is only the remote cause. Mode is a
real right while title is only a personal right.

How is real right over property acquired?
Real rights over property can be acquired by
derivative modes of acquiring ownership. They
could not be acquired by occupation and
intellectual creation because these latter modes
are original in nature and do not depend on
pre-existing titles.
Can a land be acquired through occupation?
Never.
Tradition as a mode of acquiring ownership:
Tradition is a legal delivery. It has a cause which
is the title by reason of which the delivery is
made.

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Distinguish real right from personal right.
A real right is the power of the person to obtain
certain financial or economic advantages over a
specific thing, a power enforceable against the
whole world, whether or not he possess the
thing. On the other hand, personal right is the
power belonging to a person to demand from
another the fulfillment of a prestation to give,
to do or not to do.
----------------------------------------------------------------
Classes of tradition:
1. Real or actual tradition: the actual
delivery of the thing from the hand of
the grantor to the hand of the grantee if
the thing is a personality. If the thing is
a realty, it is manifested by certain
possessory acts executed by the
grantee with the consent of the grantor
such as by taking over the property; by
entering it and occupying it.

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 133
2. Constructive tradition: the delivery is
representative or symbolical in essence.
a. Tradicion symbolica- delivery of
certain symbols or things
representing the thing being
delivered such as keys or titles
b. Tradicion instrumental- delivery of
the instrument of conveyance to
the grantee by the grantor
c. Tradicion longa manu- by pointing
of thing within sight
d. Tradicion brevi manu- by grantee’s
continuation of his possession over
the thing delivered but now under a
title of ownership
e. Tradicion constitutum
possessorium- it consists in the
owner;s continuous possession of
the property he had sold to another
person and his present possession
is no longer as an owner
f. Tradicion by operation of law-
delivery of the thing by operation of
law such as in intestate succession
g. Quasi tradicion-delivery of
incorporeal property
Requisites to make constructive delivery
effective:
1. The vendor or grantor must have the
control over the property sold or
alienated at the moment of sale or
alienation to the vendee or grantee
2. There must be an intention to deliver
ownership.
3. The purchaser must have enjoyment
and material tenancy of the thing and
make use of himself or through a
representative.
HOW OWNERSHIP LOST?
1. Contracts
2. Alienation
3. Tradition
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4. Abandonment
5. Loss
6. Expropriation
7. Law
OCCUPATION
Art. 713. Things appropriable by nature
which are without an owner, such as animals
that are the object of hunting and fishing,
hidden treasure and abandoned movables, are
acquired by occupation.
OCCUPATION IS THE OPPOSITE OF
ABANDONMENT.
Occupation is the taking of possession of a
corporeal thing which is a res nullius by a
person through material apprehension thereof
and with the intention to appropriate it as his
own.
When is a thing considered abandoned?
A thing is considered abandoned when the spes
recuperandi (hope nor expectancy to recover) is
gone and the animo revertendi (the intention of
returning) had been given up by the owner.
Note: lost things or taken by force are not ipso
facto converted into res nullius, and it may thus
be recovered from whoever has it unless said
possessor can show he has acquired it by any of
modes of acquiring ownership
WILL YOU CONSIDER HIDDEN TREASURE RES
NULLIUS?
No. although it is hidden treasure, it ONLY
refers to those that it found in places with NO
owner.
ESSENTIAL REQUISITES FOR OCCUPATION:
1. There must be a seizure or
apprehension;
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 134
2. The property seized must be corporeal
personal property;
3. The property seized must be
susceptible of appropriation;
4. There must be intent to appropriate;
5. The requisites or conditions of the law
must be complied with.
----------------------------------------------------------------
Distinguish occupation from possession:
Occupation can only apply to property without
owner but possession can apply to properties
whether with or without owner. Occupation
confers ownership while possession by itself
does not confer ownership. There can be no
occupation without ownership but there can be
possession without ownership.
----------------------------------------------------------------
Land with no private owner belongs to the
State.
Art. 714. The ownership of a piece of land
cannot be acquired by occupation.
Can the land be acquired by occupation?
No. occupation, as one of the mode of acquiring
ownership is done over properties which are res
nullius or objects that has no owner. A land not
owned by a private owner is reverted back to
the State, thus, it has its owner and never
classified as res nullius.
How can land be acquired?
While land cannot be acquired by occupation, it
may be acquired by prescription.
How can acquisitive prescription ripen into
ownership?
1. Possession must be in the concept of an
owner
2. Public
3. Peaceful
4. Uninterrupted
5. Bona fide claim of ownership
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1995 – 2005? WHEN DID A ACQUIRE THE
PROPERTY? In 1995, retroactive effect.
Art. 715. The right to hunt and to fish is
regulated by special laws.
*municipality has the power to issue, and
enforce, ordinances respecting fisheries
Special laws on hunting and fishing:
1. Hunting Act No. 2590- for the
preservation of certain animals,
declaring some seasons closed and
others open for hunting and regulating
for issuances of license to hunt.
2. Fisheries Act 4003 as amended by CA
116 and 471 and RA 659
3. Act 1499 as amended by Act 1685
which prohibit the use of explosives in
fishing
Art. 716. The owner of a swarm of bees shall
have a right to pursue them to another's land,
indemnifying the possessor of the latter for the
damage. If the owner has not pursued the
swarm, or ceases to do so within two
consecutive days, the possessor of the land
may occupy or retain the same. The owner of
domesticated animals may also claim them
within twenty days to be counted from their
occupation by another person. This period
having expired, they shall pertain to him who
has caught and kept them.
Rule:
The owner of said swarm of bees should pursue
them within two consecutive days. In failing to
do so, the owner of the land where they strayed
may retain them as his own.
*acquisition of ownership by law
For strayed domesticated animals:
The owner may still claim them from the captor
within twenty days reckoned from the date of
occupation by the captor.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 135
Art. 717. Pigeons and fish which from their
respective breeding places pass to another
pertaining to a different owner shall belong to
the latter, provided they have not been
enticed by some article of fraud.
Rule:
The law provides that the pigeons and fishes
shall pertain to the owner of the ponds or
breeding places where they have wandered.
XPN: when the fish has been enticed by
some artifice or fraud, the law provides
that they remain the property of the
owner and the person who enticed
them, being in bad faith, will lose his
own fish.
Art. 718. He who by chance discovers hidden
treasure in another's property shall have the
right granted him in article 438 of this Code.
Is hidden treasure res nullius?
If found in the land which has an owner, it is not
considered as a res nullius.
*ownership of hidden treasure is acquired by
law.
Art. 719. Whoever finds a movable, which is
not treasure, must return it to its previous
possessor. If the latter is unknown, the finder
shall immediately deposit it with the mayor of
the city or municipality where the finding has
taken place.
The finding shall be publicly announced by the
mayor for two consecutive weeks in the way
he deems best.
If the movable cannot be kept without
deterioration, or without expenses which
considerably diminish its value, it shall be sold
at public auction eight days after the
publication.
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Six months from the publication having
elapsed without the owner having appeared,
the thing found, or its value, shall be awarded
to the finder. The finder and the owner shall
be obliged, as the case may be, to reimburse
the expenses.
*Previous possessor sufficient
When is the thing considered lost?
A thing is lost when it is previously under the
lawful possession and control of a person but is
now without any possessor, however it is not an
abandoned property.
Duty of the finder:
When a person found a lost thing, it is his duty
to return it to its lawful owner or lawful
possessor. If the lawful owner or possessor is
unknown or cannot be located, he shall deposit
the lost thing found to the mayor of the city or
municipality where the finding has taken place.
Duty of the mayor:
The mayor in turn must publicly announce the
finding of the property appropriately describing
the list thing for the purpose of inviting the
attention of the previous owner or possessor or
the public about the finding.
When sale of the lost thing at public auction
authorized?
Generally, when a thing is deposited in the
municipality or city where its finding has taken
place, it must be kept until its lawful owner or
possessor claim it within the period allowed by
the law, except when the movable cannot be
kept for long without deterioration or without
incurring substantial expenses for its safe-
keeping, the lost thing may be sold publicly.
When is the lost thing awarded to the finder?
The lost thing will be awarded to the finder if
after six months from the time of publication,
the previous lawful owner or possessor did not
claim it.
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 136
What is the consequence if the finder did not
do his duty prescribed by the law with regard
to the lost thing?
He may be held criminally liable for the crime of
theft.
Art. 720. If the owner should appear in time,
he shall be obliged to pay, as a reward to the
finder, one-tenth of the sum or of the price of
the thing found.
What are the duty of the owner who appear in
time and claim the lost thing?
The owner has the following duty:
1. To give reward to the finder one-tenth
of the sum or value of the thing.
2. To reimburse the finder the expenses
incurred by the finder in locating him or
in preserving the lost thing of there is
any.
3. To reimburse the expenses for
publication, if there was a public
auction sale
INTELLECTUAL CREATION
Art. 721. By intellectual creation, the
following persons acquire ownership:
(1) The author with regard to his literary,
dramatic, historical, legal, philosophical,
scientific or other work;
(2) The composer; as to his musical
composition;
(3) The painter, sculptor, or other artist, with
respect to the product of his art;
(4) The scientist or technologist or any other
person with regard to his discovery or
invention.
*under the NCC, intellectual creation is now a
mode of acquisition of ownership over the
works of those enumerated in art 721
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Art. 722. The author and the composer,
mentioned in Nos. 1 and 2 of the preceding
article, shall have the ownership of their
creations even before the publication of the
same. Once their works are published, their
rights are governed by the Copyright laws.
The painter, sculptor or other artist shall have
dominion over the product of his art even
before it is copyrighted.
The scientist or technologist has the ownership
of his discovery or invention even before it is
patented.
Rule in ownership of intellectual property:
1. The author and the composer are
already the owner of their creation
even before the publication.
Purpose of copyright: if the author or
publisher intends to publish his work;
also others may acquire their works of
not patented or copyrighted
*mere circulation among friends is not
considered as publication
2. The painter, sculptor or other artist is
also recognized as the owner of their
works even before it is copyrighted.
3. Same rule applies in case of scientist or
technologist.
Rule when employee is the creator:
The ownership of the work will pertain to the
employee if he created the work not as a result
of his duty even done during working hours. But
if he is hired to do such, the ownership will
pertain to the employer.
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PROPERTY REVIEWER

Art. 723. Letters and other private

communications in writing are owned by the
person to whom they are addressed and
delivered, but they cannot be published or
disseminated without the consent of the
writer or his heirs. However, the court may
authorize their publication or dissemination if
the public good or the interest of justice so
requires.

Dual interest in letters:

Thoughts and ideas- owned by the writer and
can be published by him even without the
consent of the receipent.

The letter itself-owned by the recipient.

Can the recipient publish or disseminate the

letter?
Generally, the recipient’s ownership over the
letter is restricted. Under the law, he cannot
publish or disseminate the letter without the
consent of the writer. However, he may do so if
through the court order, the publication is
necessary for public safety or when the public
interest necessitates its publication or
dissemination.

Publication includes reading it to others.

E-mail?
Text messages? Yes. Ephemeral evidence.
XPN: Court order

Art. 724. Special laws govern copyright and

patent.

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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 138
DONATION
Art. 725. Donation is an act of liberality
whereby a person disposes gratuitously of a
thing or right in favor of another, who accepts
it.
DONOR – disposes in favor of another person
DONEE – accepts the donation
Essential elements of donation:
1. The essential reduction in the asset or
patrimony of the donor
2. The increase in the patrimony of the
done
3. The intent to do an act of liberality
What is the significance of acceptance in
donation?
Acceptance is necessary in every donation in
order for it to become effective. Since donation
is an act of liberality, no one is compelled to
accept the liberality of the supposed donor.
It is the point where donation becomes
effective.
Classifications of donation according to its
effectivity:
1. Donation mortis cause- is a donation
which takes effect after the death of
the donor
2. Donation inter vivos- donation which
takes effect within the lifetime of the
donor
a. Simple or pure donation- donation
without any condition imposed
e.g.: A donates a parcel of land to B.
b. Remuneratory condition- is one
which remunerates the past
services of the done which do not
constitute demandable debts
against the donor. Merits.
*this means that the donor has no
obligation to the done
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e.g.: A donated a parcel of land
worth 1M to B, his maid for the
services made by B to A. Is the act
of A donation?
Qualifications must be made. If
what has been given by A to b is in
lieu of B’s salary, it is not a donation
because it is his obligation to pay B
for the services made in favor to
him as his maid. But if A is regularly
paying B and gives B a parcel of
land, then it is a donation because
there is an act of liberality already.
c. Conditional donation- is a donation
dependent to a happening of a
future or past event unknown to
the parties
e.g. A will donate to B a car if B will
pass the bar exam.
If condi was not complied with,
void.
d. Modal donation- is a donation
wherein a burden or charge is
imposed on the done which is
lesser in value than the thing
donated
Still with burden but lesser value.
Burden is the mode itself. If it could not
be complied with, valid but revocable
e.g. A will donate a parcel of land to
B provided that B will construct a
school on it.
WHAT IF THE BURDEN WAS NOT COMPLIED
WITH, WHAT IS THE STATUS OF DONATION?
It is valid but revocable.
CONDITION EXTRAVAGANT BURIAL,
DONATION 10M?
Valid.
e. Onerous donation- is one made
with valuable consideration which
is equivalent or higher than the
value of the thing donated
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e.g. A will donate to B a parcel of
land worth 1M to B and B will give A
diamond worth 1M
Art. 726. When a person gives to another a
thing or right on account of the latter's merits
or of the services rendered by him to the
donor, provided they do not constitute a
demandable debt, or when the gift imposes
upon the donee a burden which is less than
the value of the thing given, there is also a
donation.
Kind of donations contemplated under this
Article:
1. Remuneratory or compensatory
donation:
Remuneratory- a form of reward
because of the past services of the done
to the donor
*1.the donee made a past
services to the donor
2. as a form of gratitude, the
donor gives something to the
done which do not constitute as
a demandable debts
e.g. A save the life of B, B gave 1milliion
to A
in the given example, the act of
B is an act of liberality
compensatory- in recognition of merit
e.g. those donation given to Pacquio
whenever he wins a fight
2. Modal donation
A GAVE 10,000 WHEREIN B WORKED FOR HIM
FOR 10 YEARS, IS IT A DONATION?
It depends. If it is as a salary, it is not a
donation. If it is not given as a salary, it is a
donation.
Art. 727. Illegal or impossible conditions in
simple and remuneratory donations shall be
considered as not imposed.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
Kinds of impossible condition:
1. Juridical impossibility- condition which
are contrary to law, moral or public
policy
e.g. A will donate to B a house provided
it will be used as a shabu laboratory
2. Physical impossibility- condition which
contradicts the law of nature
e.g. A will donate to B a parcel of land
provided B will fly to the moon and be back
tomorrow.
What is the status of the donation with illegal
or impossible donation?
If the donation is simple or remuneratory
donation, the donation is still valid and will be
treated as if no condition has been imposed,
but if the condition is onerous, which is
governed by laws on contracts, the donation
becomes void because the condition imposed is
illegal.
*No donation on intestate succession
Art. 728. Donations which are to take effect
upon the death of the donor partake of the
nature of testamentary provisions, and shall
be governed by the rules established in the
Title on Succession.
*Donation mortis causa is governed by rules on
Succession therefore it must conform with the
formalities of wills
RIGHT OF DISPOSITION – transferor
XPN: death
INTER VIVOS IS REVOCABLE IF:
1. Inofficious
2. Failure to comply
3. Ingratitude
Characteristics of Donation Mortis Causa:
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1. It conveys no title or ownership to the
transferee before the death of the
transferor; (no title yet before death)
2. That before the death of the transferor,
the donation may be revocable at his
will;
3. The transfer is void if the transferor
should survive the transferee (right of
disposition – transferor xpn:death)
*In donation mortis causa, the right of
disposition is not transferred to the donee while
the donor is still alive.
Art. 729. When the donor intends that the
donation shall take effect during the lifetime
of the donor, though the property shall not be
delivered till after the donor's death, this shall
be a donation inter vivos. The fruits of the
property from the time of the acceptance of
the donation, shall pertain to the donee,
unless the donor provides otherwise.
----------------------------------------------------------------
Distinguish donation mortis causa from
donation inter vivos:
Donation MC takes effect after the death of the
donor while Donation IV takes effect during the
lifetime of the donor. Being so, Donation MC
shall strictly follow the formalities of will while
Donation IV follows the formalities of donation
because Donation MC is governed by provisions
under Succession while Donation IV is governed
by rules on Donation. In donation mc
acceptance must be made after the death of
the donor while acceptance in donation IV is
made during the lifetime of the donor.
Donation MC may be revoked at anytime
during the lifetime of the donor, but in case of
donation IV, it is generally not revocable except
in cases of inofficious donations, failure to
comply with the imposed condition or
ingratitude.
----------------------------------------------------------------
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
What is the test to determine if it is donation
mortis cause or donation inter vivos?
Whether it is donation mortis cause or donation
inter vivos is dependent upon the act and the
effectivity of the donation. If the effectivity of
the donation is made dependent to the death of
the donor then it is a donation mortis cause. If
the effecivity of the donation is independent of
the death of the donor, it is donation inter
vivos.
*when there is a doubt as to the nature of the
donation, it is resolved in favor of donation
inter vivos
INTER VIVOS REVOCABLE:
1. Inofficious
2. Failure to comply
3. ingratitude
What is donation praesenti?
Donation praesenti is considered as a donation
inter vivos but the delivery of the thing to be
donated is in the future
Ownership immediately transferred through
done but takes effect upon death. Death is
irrelevant.
Death is not or relevant in transfer.
Art. 730. The fixing of an event or the
imposition of a suspensive condition, which
may take place beyond the natural expectation
of life of the donor, does not destroy the
nature of the act as a donation inter vivos,
unless a contrary intention appears.
*not descendant or death of donor
GR: when a suspensive condition is imposed on
donation inter vivos, it is not changes to
donation mortis cause
XPN: when there is a stipulation to the
contrary.
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Art. 731. When a person donates something,
subject to the resolutory condition of the
donor's survival, there is a donation inter
vivos.
Rule when donation is subject to a resolutory
condition:
Resolutory condition- is one the happening of
which terminates an obligation
*what is contemplated under the article is upon
the DONOR’S survival and not of the done
e.g. A will give B a rolex but when A survives the
hiking to Mt. Everest, B must return the rolex. A
survived. Is there a donation?
Yes, the donation is a donation inter vivos with
resolutory condition.
Art. 732. Donations which are to take effect
inter vivos shall be governed by the general
provisions on contracts and obligations in all
that is not determined in this Title.
What governs donation inter vivos?
Donation inter vivos which takes effect during
the lifetime of the donor is governed by the
provision on Donations. In case the rules on
donations is insufficient, the laws on contracts
and obligations will apply suppletorily.
What rule will apply if there is illegality on
object and cause of donation?
Object and cause are two separate elements of
a donation and the illegality of either element
will give rise to the application of doctrine of
pari delicto.
Art. 733. Donations with an onerous cause
shall be governed by the rules on contracts and
remuneratory donations by the provisions of
the present Title as regards that portion which
exceeds the value of the burden imposed.
Rule:
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
When the donation is an onerous one, it is
governed by the laws of contract. If the
donation is partially onerous, the donation
equivalent to the burden is governed by the
rules on donation while the excess is governed
by the laws on contracts.
----------------------------------------------------------------
Distinguish onerous from remuneratory
donation:
In onerous donation, the services of the done
has not yet been performed while the services
of the done in remuneratory condition is
already performed.
----------------------------------------------------------------
Art. 734. The donation is perfected from the
moment the donor knows of the acceptance
by the donee.
*perfection happens upon acceptance
WHAT IS THE RELEVANCE OF ACCEPTANCE?
It is an essential requisite for the validity of
donation.
When is the moment of perfection of
donation?
A donation is perfected from the time the
donor has the knowledge of the acceptance
made by the donee. Thus, the acceptance must
be made during the lifetime of the donor.
What is the status of the donation when
acceptance by done is not made?
The donation is null and void.
Rule prior to knowledge of acceptance:
Before the acceptance of the done, there s no
perfection of donation yet. Otherwise put,
there is no donation at all, hence the donor may
give the property to somebody else. This is so
because the donor has not yet parted woth the
disposition of the property.
PERSONS WHO MAY GIVE OR RECEIVE A
DONATION
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Art. 735. All persons who may contract and
dispose of their property may make a
donation.
Requisites in order for a person may validly
donate:
1. The capacity to enter contract (must be
of legal age)
2. Capacity to dispose his property by acts
inter vivos
*in other words, the donor must have a full
capacity
*Applicable to both natural and artificial
persons.
May corporations donate?
The persons contemplated under the law, who
may give donations are either natural or
juridical persons. In case of natural person, he
must have a full capacity, that is complying with
the requisites provided for by the law to make a
valid donation. In case of juridical person, it
may donate as long as it is authorized under the
Corporation Law.
*Ratification may be allowed
What is the status of donation made by
minors, insane, imbecile or those person with
restricted capacity to act?
The donation is voidable because the consent of
the donor is defective by reason of his
incapacity to give consent.
WHAT IF PERSONAL PROPERTY WAS
DONATED, WOULD IT STILL NEED TO COMPLY
WITH THE 60/40 REQUIREMENT?
No if it is provided by the charter of the
corporation.
Art. 736. Guardians and trustees cannot
donate the property entrusted to them.
Reason: Because they are not the owners of the
property. No right to dispose.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
What is the status of the donation made by the
guardians and trustees?
The donation is void because under the law
they are not allowed to donate properties
entrusted to them.
Is the rule absolute?
No. if the donation made by the guardian is
with the consent of the ward and has a judicial
approval and will benefit the ward, the
donation is valid.
*Trustees may become owner by repudiation
by the trustor
Art. 737. The donor's capacity shall be
determined as of the time of the making of the
donation.
When is the donor’s capacity determined?
The capacity of the donor is determined at the
time of the making of the donation, which
means the time of the execution of the deed of
donation, which must also be read at the time
of perfection of the donation.
*donor’s capacity must be present at
the time of the perfection of the
donation
*making means at the time of
perfection
Art. 738. All those who are not specially
disqualified by law therefor may accept
donations.
Who are qualified to accept donations?
Generally, all persons whether natural are
juridical, are qualified to accept donations
except those specifically disqualified by the law
under Art. 739 of NCC.
Two kinds of disqualified donee:
1. Specially disqualified donee- those
disqualified by law as enumerated
under Art. 739
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2. Relatively disqualified- those who are
disqualified under the circumstances
provided for by Art. 1027, 1032
Rule in giving donation to organization:
Alien Organization- G.R.: cannot be a done
XPN: when 60% of its
capital is owned by Filipinos
Non-Stock Organization- cannot be a donee
unless the controlling membership is in Filipino
hands
Filipino Organization- can be a done because it
is controlled by Filipinos
Art. 739. The following donations shall be
void:
(1) Those made between persons who were
guilty of adultery or concubinage at the time of
the donation;
(2) Those made between persons found
guilty of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer or his wife,
descedants and ascendants, by reason of his
office.
In the case referred to in No. 1, the action for
declaration of nullity may be brought by the
spouse of the donor or donee; and the guilt of
the donor and donee may be proved by
preponderance of evidence in the same action.
PARAGRAPH 1:
Is criminal conviction necessary in Par 1?
No, the fact that a civil action for the
declaration of nullity of donation is filed is
sufficient.
What is the required evidence?
Preponderance of evidence only.
“ASPIRE TO INSPIRE BEFORE YOU EXPIRE”
PROPERTY REVIEWER
What is the status of the donation made to
persons enumerated under Art. 739?
The donation made to persons enumerated
under Art. 739 is void from the beginning. By
reason of moral consideration, the law
automatically declares their nullity and need
not be pronounced as such by courts.
Application:
*The donation to be void under paragraph 1, it
must be two person guilty of either ADULTERY
or CONCUBINAGE.
*The donation must be made at the time they
are currently having their relationship as
paramours.
Situation:
A, a married man courted B, a GRO and donated
jewelries. Is the donation valid?
Yes. The donation of A to B is valid,
notwithstanding illicit relationship between A
and B. This is so because their relationship does
not amount to adultery or concubinage
A will donate a car to B provided they will end
their relationship. Is donation valid?
Yes. The donation of A to B is valid because its
purpose or consideration is not to continue an
immoral arrangement but precisely to put an
end to it.
PARAGRAPH 2:
Application: Unlike Par. 1, criminal conviction
under Par. 2 is necessary.
Qualifying condition: To be void, the donation
must be in consideration of the crime.
Query: What if the donation is made
between the convicted, is the donation
valid but for some consideration?
Yes. Although it is made between the
two convicted, the donation is still valid
notwithstanding their conviction as long
as it is not in consideration of the crime
at which they are convicted.
Can live-in partners or common law spouses
without impediments donate?
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Generally, they cannot donate with each other
as this will place them favorably than those who
are married. However they may donate
moderately only when the family is rejoicing.
PARAGRAPH 3:
RULE:
Public officers are not allowed to receive
donation, it is prohibited by law from any
person, at any event.
Art. 740. Incapacity to succeed by will shall
be applicable to donations inter vivos.
*Incapacity to succeed is only applicable to
donation inter vivos.
Two kinds of person disqualified to succeed:
1. Absolutely disqualified to inherit by will:
Arts. 1028, 919, 920, 921
2. Relatively disqualified to inherit by will:
Arts. 1027, 1032
*please see these Articles for guidance
*ARTS. 1027 and 1032 are relatively disqualified
because they are naturally allowed to be a done
but because of the situation, they are barred
from receiving donations
What is the status of donation made by the
guardians?
Whether it is void or not depends upon the
underlying circumstances. If the donation is
made before the final accounting of assets, it is
void because as to the portion allowed to be
donated is still ideal, but if donation is made
after the accounting of assets, it is valid.
----------------------------------------------------------------
Distinguish Arts. 919, 920, 921 from Art. 1032:
While articles 919, 920 and 921 and 1032 are
generally considered as acts of unworthiness,
under Art. 1032, the grounds are imposed by he
law and it is automatic in a sense that if the
done had done those enumerated, he is already
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PROPERTY REVIEWER
disqualified because the law says so. In cases of
Arts. 919, 920, 921, if it is done by the parents
child or spouse, it is still within the discretion of
the donor to donate I to the child, parents or
spouse who did the unworthiness.
----------------------------------------------------------------
What is the consequence of the donation?
Art. 919, 920, 921- there must a reconciliation
and express pardon or forgiveness
Acts of unworthiness- express pardon and
written condonation
Art. 919. The following shall be sufficient causes
for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has
been found guilty of an attempt against
the life of the testator, his or her
spouse, descendants, or ascendants;
(2) When a child or descendant has
accused the testator of a crime for
which the law prescribes imprisonment
for six years or more, if the accusation
has been found groundless;
(3) When a child or descendant has
been convicted of adultery or
concubinage with the spouse of the
testator;
(4) When a child or descendant by
fraud, violence, intimidation, or undue
influence causes the testator to make a
will or to change one already made;
(5) A refusal without justifiable cause to
support the parent or ascendant who
disinherits such child or descendant;
(6) Maltreatment of the testator by
word or deed, by the child or
descendant;
(7) When a child or descendant leads a
dishonorable or disgraceful life;
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(8) Conviction of a crime which carries
with it the penalty of civil interdiction.
(756, 853, 674a)
Art. 920. The following shall be sufficient causes
for the disinheritance of parents or ascendants,
whether legitimate or illegitimate:
(1) When the parents have abandoned
their children or induced their
daughters to live a corrupt or immoral
life, or attempted against their virtue;
(2) When the parent or ascendant has
been convicted of an attempt against
the life of the testator, his or her
spouse, descendants, or ascendants;
(3) When the parent or ascendant has
accused the testator of a crime for
which the law prescribes imprisonment
for six years or more, if the accusation
has been found to be false;
(4) When the parent or ascendant has
been convicted of adultery or
concubinage with the spouse of the
testator;
(5) When the parent or ascendant by
fraud, violence, intimidation, or undue
influence causes the testator to make a
will or to change one already made;
(6) The loss of parental authority for
causes specified in this Code;
(7) The refusal to support the children
or descendants without justifiable
cause;
(8) An attempt by one of the parents
against the life of the other, unless
there has been a reconciliation
between them. (756, 854, 674a)
Art. 921. The following shall be sufficient causes
for disinheriting a spouse:
(1) When the spouse has been
convicted of an attempt against the life
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PROPERTY REVIEWER
of the testator, his or her descendants,
or ascendants;
(2) When the spouse has accused the
testator of a crime for which the law
prescribes imprisonment of six years or
more, and the accusation has been
found to be false;
(3) When the spouse by fraud, violence,
intimidation, or undue influence cause
the testator to make a will or to change
one already made;
(4) When the spouse has given cause
for legal separation;
(5) When the spouse has given grounds
for the loss of parental authority;
(6) Unjustifiable refusal to support the
children or the other spouse. (756, 855,
674a)
Art. 1027. The following are incapable of
succeeding:
(1) The priest who heard the confession
of the testator during his last illness, or
the minister of the gospel who
extended spiritual aid to him during the
same period;
(2) The relatives of such priest or
minister of the gospel within the fourth
degree, the church, order, chapter,
community, organization, or institution
to which such priest or minister may
belong;
(3) A guardian with respect to
testamentary dispositions given by a
ward in his favor before the final
accounts of the guardianship have been
approved, even if the testator should
die after the approval thereof;
nevertheless, any provision made by
the ward in favor of the guardian when
the latter is his ascendant, descendant,
brother, sister, or spouse, shall be valid;
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(4) Any attesting witness to the
execution of a will, the spouse, parents,
or children, or any one claiming under
such witness, spouse, parents, or
children;
(5) Any physician, surgeon, nurse,
health officer or druggist who took care
of the testator during his last illness;
(6) Individuals, associations and
corporations not permitted by law to
inherit. (745, 752, 753, 754a)
Art. 1032. The following are incapable of
succeeding by reason of unworthiness:
(1) Parents who have abandoned their
children or induced their daughters to
lead a corrupt or immoral life, or
attempted against their virtue;
(2) Any person who has been convicted
of an attempt against the life of the
testator, his or her spouse,
descendants, or ascendants;
(3) Any person who has accused the
testator of a crime for which the law
prescribes imprisonment for six years or
more, if the accusation has been found
groundless;
(4) Any heir of full age who, having
knowledge of the violent death of the
testator, should fail to report it to an
officer of the law within a month,
unless the authorities have already
taken action; this prohibition shall not
apply to cases wherein, according to
law, there is no obligation to make an
accusation;
(5) Any person convicted of adultery or
concubinage with the spouse of the
testator;
(6) Any person who by fraud, violence,
intimidation, or undue influence should
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PROPERTY REVIEWER
cause the testator to make a will or to
change one already made;
(7) Any person who by the same means
prevents another from making a will, or
from revoking one already made, or
who supplants, conceals, or alters the
latter's will;
(8) Any person who falsifies or forges a
supposed will of the decedent. (756,
673, 674a)
Unworthiness of the donee
If the unworthiness of the donee is unknown,
the donation made to him is VOID; on the other
hand if the unworthiness of the donee is known
the donation made in favor of him is VALID.
Reason: the donation itself is the condonation
in writing needed to make the donation valid
Situation:
A donated to B. B attempted to kill A’s child. Is
the donation valid?
Yes. The donation is still valid notwithstanding
the unworthiness of B which was done after the
perfection of the donation, but because of such,
the law provides that the donation after being
perfected and the donee became unworthy, it
may be a ground for revocation of donation.
Art. 741. Minors and others who cannot
enter into a contract may become donees but
acceptance shall be done through their parents
or legal representatives.
What is the status of the donation made by
minors, imbecile or insane?
The donation made by minors, insane or
imbecile who has a restricted capacity is
voidable.
May they become a donees?
Yes, although they are restricted to enter into a
contract, they are still qualified to be a donees
provided that the acceptance will be made by
their parents of legal representative.
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Art. 742. Donations made to conceived and
unborn children may be accepted by those
persons who would legally represent them if
they were already born.
May a donation be made to unborn child?
Yes, provided that the following condition is
met:
1. The child will have its personality
2. There must be acceptance on the part
of the mother
Situation:
B, mother of unborn child accepted the
donation but the child with intra-uterine of 7
months died on the 10th hour, what is the status
of the donation?
Valid. The child already has its personality and
the mother has accepted the donation.
What if born on the 6th month instead of the
7th?
The answer will be different, in this case, the
donation is void because the donee did not gain
personality.
What if the donation of 100,000 is onerous is
given to an unborn child and he is born
completely with intra-uterine life of 9 months.
What is the status of the donation?
The status of the donation is inoperative. It will
not be effective because the rule which will be
applied is rule on contracts and not rule on
donation.
Art. 743. Donations made to incapacitated
persons shall be void, though simulated under
the guise of another contract or through a
person who is interposed.
Two kinds of incapacitated persons in donation.
1. Incapacitated by law: art 739, 919, 920,
921, (any donation under these
provisions of law are void)
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PROPERTY REVIEWER
2. Incapacitated by vitiated consent: these
are donations made by person with
restricted capacity to enter a contract
- Consent are vitiated ( donations are
merely voidable)
Application: The donations pertained here are
those given to incapacitated by law to become a
done, in which case, in the event a donation is
made in favor of them, the law provides that it
is void as distinguished with the donation made
to minor, insane or imbecile done which is
merely voidable.
Situation:
A and B were paramours convicted of adultery.
A donated to X a land with a previous
understanding that the same thing will be
donated to B. Is the donation valid?
No. the donation between A and X is void. This
is so because the consideration made is a
simulated donation. The donation is in fact
between two persons who are guilty of
adultery, which is prohibited. To otherwise
grant the donation between A and X will be
against the law.
Art. 744. Donations of the same thing to two
or more different donees shall be governed by
the provisions concerning the sale of the same
thing to two or more different persons.
Rule on double donation:
The rule on double donation is the same rule in
double sale, to wit:
When the object of the donation is a movable
property: the one in possession in good faith is
preferred.
When the object of the donation is an
immovable, preference takes place as follow:
Registered: the one who acquired it in good
faith and registered it FIRST
Not registered: the one who is in possession in
good faith
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And in default: the one who could present an
older title provided there is good faith.
Art. 1544. If the same thing should have been
sold to different vendees, the ownership shall
be transferred to the person who may have first
taken 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 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. (1473)
Art. 745. The donee must accept the donation
personally, or through an authorized person
with a special power for the purpose, or with a
general and sufficient power; otherwise, the
donation shall be void.
Modes of acceptance of donation:
1. Personally- the done is the one who
accepts it
2. By legal representative provided that:
a. It has notification
b. With authority
c. With sufficient power
Otherwise acceptance made by a
third person not a legal
representative is void.
Two kinds of authorized person:
1. With special power
2. With a general and sufficient power
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PROPERTY REVIEWER
Why is that donation must be accepted by the
done or in his absence, a person authorized to
receive?
This is so because a donation is an act of
liberality and it will not be effective if it is not
accepted by the donee in manner provided by
law. without valid acceptance, the donation is
void.
Acceptance by agent:
when it is a simple and onerous donation, the
ordinary agent or administrator cannot accept
the donation made in favor of the done, it the
donee’s behalf.
Reason: This is so because in simple
donation, the principal may not want to accept
it. In onerous donation, the principal may not
want to be bound.
Formalities of donation:
A. Movables:
1. Orally- with simultaneous delivery;
value of which is 5000 below
2. Writing- exceeds in 5000
Note: the law does not require it to be
in public document, it simply requires
to be in writing
ACCEPTANCE:
Acceptance must also be writing if the
donation was required in writing.
B. Immovable:
1. Donation must be in writing
2. Acceptance must be in writing
Note: Unlike when the object of
donation is a movable, if the object of
donation is immovable, it must always
be in public document otherwise, the
donation will be void
C. Onerous donation
The formalities that must be applied
with regard to onerous donation are
those of the rules on contracts
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D. Donation Mortis cause
Formalities of wills
Art. 746. Acceptance must be made during
the lifetime of the donor and of the donee.
Donation inter vivos- acceptance must be made
during the lifetime of the donor, otherwise
there is no perfection of donation
Donation mortis cause- acceptance must be
made after the death of the donor
Onerous donation- there must unconditional
acceptance, otherwise there is no meeting of
the mind, therefore no perfection of contract.
*Again, the acceptance must be made known to
the donor, otherwise there is no perfection of
donation.
Art. 747. Persons who accept donations in
representation of others who may not do so by
themselves, shall be obliged to make the
notification and notation of which article 749
speaks.
Who should give the notification?
The authorized representative who accepts the
donation in behalf of the done with restricted
capacity like those of the minors, insane or
imbecile, must notify the donor of the
acceptance both in the deed of donation and
acceptance.
What is the effect if the representative did not
notify the donor?
The donation shall not be effective as there is
no perfection of donation because the
acceptance, which is necessary to make the
donation valid, is not perfected.
Art. 748. The donation of a movable may be
made orally or in writing.
An oral donation requires the simultaneous
delivery of the thing or of the document
representing the right donated.
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If the value of the personal property donated
exceeds five thousand pesos, the donation and
the acceptance shall be made in writing,
otherwise, the donation shall be void.
Formalities of donation:
Movables:
1. Orally- with simultaneous delivery;
value of which is 5000 below
2. Writing- exceeds in 5000
Note: the law does not require it to be
in public document, it simply requires
to be in writing
ACCEPTANCE:
Acceptance must also be writing if the
donation was required in writing.
*donation and acceptance of movable that is
worth more than 5000 php not in writing, it is
void.
Art. 749. In order that the donation of an
immovable may be valid, it must be made in a
public document, specifying therein the
property donated and the value of the charges
which the donee must satisfy.
The acceptance may be made in the same
deed of donation or in a separate public
document, but it shall not take effect unless it
is done during the lifetime of the donor.
If the acceptance is made in a separate
instrument, the donor shall be notified thereof
in an authentic form, and this step shall be
noted in both instruments.
Formalities of Donation
E. Immovable:
1. Donation must be in writing
2. Acceptance must be in writing
Note: Unlike when the object of
donation is a movable, if the object of
donation is immovable, it must always
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be in public document otherwise, the
donation will be void
But in order to bind third person, the
donation must be registered in the
Registry of Property.
Effects if the donation is only in Private
Document (not notarized)
As the law requires that if the object of
donation is an immovable property, it must be
notarized, if it is otherwise made, it will be:
1. Void except it is donation propter
nuptias because it is Statute of Frauds
which governs the donation
2. Cannot be ratified, the remedy is to
make another donation following he
formalities provided by law
Reason: Ratification is only made if the
donation is valid from the beginning,
but in case the donation which is
required to be made in public
document is in private form, the
remedy is to make a new one and not
to ratify because it is void.
EFFECT OF DONATIONS AND LIMITATIONS
Art. 750. The donations may comprehend all
the present property of the donor, or part
thereof, provided he reserves, in full
ownership or in usufruct, sufficient means for
the support of himself, and of all relatives
who, at the time of the acceptance of the
donation, are by law entitled to be supported
by the donor. Without such reservation, the
donation shall be reduced in petition of any
person affected.
What are the properties covered by donation?
Only present properties, which are the
properties which can be disposed of at the time
of perfection of donation.
What does the law requires when making a
donation?
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PROPERTY REVIEWER
The law requires that the donor makes a
reservation for those he may be called upon to
support.
What is the effect if there is no reservation?
Does it affect the validity of the donation?
The donation is still valid as it is only excessive
donation. It is merely reducible to the extent
support of the relatives is impaired.
Art. 751. Donations cannot comprehend
future property.
By future property is understood anything
which the donor cannot dispose of at the time
of the donation.
Can the donor donate future property?
No. the law prohibits it because future
properties are those, which the donor cannot
dispose at the time of the donation. This means
that future inheritance cannot be donated but
accrued inheritance can be donated. The
donation will be considered void.
XPN: The exception involves marriage
settlements of prospective spouses wherein
they are allowed to donate properties to the
extent permitted by law.
Art. 752. The provisions of article 750
notwithstanding, no person may give or
receive, by way of donation, more than he may
give or receive by will.
The donation shall be inofficious in all that it
may exceed this limitation.
Application: No person may give more than
what he can give by will and at the same time,
the donee cannot receive more than what the
donor could give by will.
- The limitation given by the law with
regard to giving donation is that it must
not be more than what he can give by
will. This is to prevent the compulsory
heirs from being prejudiced.
Illustration:
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A donate 1M to a beggar.
Applying the provision, nothing bars the donor
to give the 1M to the beggar and the beggar to
receive the 1M if there is enough for the
legtime, that part of person’s possession which
he cannot freely dispose by will because it is
reserved for his compulsory heirs.
Art. 84. If the future spouses agree upon a
regime other than the absolute community of
property, they cannot donate to each other in
their marriage settlements more than one-fifth
of their present property. Any excess shall be
considered void.
Donations of future property shall be governed
by the provisions on testamentary succession
and the formalities of wills. (130a)
What is the remedy of the heirs in case of
inofficious donation?
The heirs who are prejudiced may file an action
to revoke or reduce the inofficious donation,
within five years after the death of the donor.
*Note: the action must be filed only
after the donor’s death because tha is
the time to determine whether the
donation is really inofficous.
Art. 753. When a donation is made to several
persons jointly, it is understood to be in equal
shares, and there shall be no right of accretion
among them, unless the donor has otherwise
provided.
The preceding paragraph shall not be
applicable to donations made to the husband
and wife jointly, between whom there shall be
a right of accretion, if the contrary has not
been provided by the donor.
When does accretion arise in succession?
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PROPERTY REVIEWER
When there are several donees and one of
them repudiates.
Is there accretion among joint donees?
Generally, there is none except when the donor
has provided otherwise and those made to
spouses.
Illustration of the article:
A donated to B and C, and B refuses to accept
the donation.
C will not ipso facto get the share of B
unless A, the donor has provided otherwise.
A donated to B and C, who are husband and
wife. B refuses. C will get B’s share unless the
donor has provided otherwise.
What is the effect of accretion among joint
donees?
The share is considered as co-equal, if one
repudiates or dies, it will be added to the other
co-donees.
Art. 754. The donee is subrogated to all the
rights and actions which in case of eviction
would pertain to the donor. The latter, on the
other hand, is not obliged to warrant the
things donated, save when the donation is
onerous, in which case the donor shall be
liable for eviction to the concurrence of the
burden.
The donor shall also be liable for eviction or
hidden defects in case of bad faith on his part.
What is the right of the done if he is evicted
from property donated?
He is subrogated to all rights given to the donor.
What is the concept of eviction?
Eviction in donation is when the done is
deprived a part or in whole of the property
donated to him. Otherwise put, in case the
done is evicted from the property donated to
him, the said done assumes all the rights and
actions available to the donor. Being so, he may
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file the necessary cases as if he is the donor
himself.
Illustration:
A donated a car to B which A bought from C.
the car bought from c which he donated to B
has defects.
Following the sequence, B has been
evicted from the property donated to
him. In this case, B assumes all the
rights of A, or he steps into the shoes of
A. He has the right to sue C, the seller.
This is so because as done, he is
subrogated from all the rights given to
A as the donor.
From the given example, can B go against A,
the donor?
Generally, the donee cannot go against the
donor. This is true in case of simple or pure
donation as the donor, by merely acting in his
liberality and in good faith, does not warrant
the hidden defect of donation.
What if the donation is onerous, to whom will
the donee against?
The done will go against the donor as far as the
consideration is concerned.
Generally, the donor does not warrant in
donation, except:
1. If the donor is in bad faith;
2. If donation is onerous;
3. If donation is proper nuptias unless the
contrary is stipulated.
Art. 755. The right to dispose of some of the
things donated, or of some amount which shall
be a charge thereon, may be reserved by the
donor; but if he should die without having
made use of this right, the property or amount
reserved shall belong to the donee.
Can the donor make reservations in the deed
of sale?
Yes. The donr may reserved the disposition of
some of the property donated.
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PROPERTY REVIEWER
Illustration:
A gave in donation to B a land of fruit bearing
trees and as stipulated from the deed of
donation, A reserves his right to harvest it next
season, which is on November. A died in
October. Is the donation valid?
Yes. The donation is valid. The perfection of the
contract was made. But as far as the reservation
to harvest the fruits is concerned, although it is
expressly reserved by the donor in the deed of
donation, the fruits will still belong to the done
because the donor died before he can exercise
his right which he reserved.
Art. 756. The ownership of property may also
be donated to one person and the usufruct to
another or others, provided all the donees are
living at the time of the donation.
Is there a split donation?
Yes, provided that the donees must be living at
the time of perfection of donation.
Application: donation of full ownership and
usufruct.
What is the status of the donation if one of the
donees died and the other has accepted it?
Inoperative as far as the donation given to the
done who died is concerned.
Illustration:
A donated to B the naked ownership and C the
usufruct. B died. Which donation is inoperative?
The donation given to B is inoperative. In these
case it is upon the donr if he will give the
inoperative donation to the naked owner or
give it to another.
Art. 757. Reversion may be validly
established in favor of only the donor for any
case and circumstances, but not in favor of
other persons unless they are all living at the
time of the donation.
Is reversion of property donated allowed?
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Yes it is allowed, however it is not automatic.
Illustration:
A donated a land to B provided a school will be
constructed therein. B failed to construct the
school. Will the land donated revert to A?
Yes, provided that the donor will file an action
to revert the land previously donated by him to
him. Exception to that is when the done has
voluntarily surrendered the property.
What is there is a stipulation in the deed of sale
that upon failure of compliance of the
condition, it will be reverted back to a 3rd
person. Is it allowed?
Yes, provided that at the 3rd person is alive at
the time of perfection of the donation.
What if that 3rd person died, what is the status
of the donation?
The donation would still be valid, but the
stipulation made is invalid because the 3rd
person to whom the stipulation was made in
favor of died.
Art. 758. When the donation imposes upon
the donee the obligation to pay the debts of
the donor, if the clause does not contain any
declaration to the contrary, the former is
understood to be liable to pay only the debts
which appear to have been previously
contracted. In no case shall the donee be
responsible for the debts exceeding the value
of the property donated, unless a contrary
intention clearly appears.
May the donor imposed the debt of donor to
done?
Yes, provided that there is a stipulation on the
deed of donation.
What is the extent of donee’s liability?
It shall not exceed the value donated, except
when there is a stipulation to the contrary.
G.R.: The debts which the donor may impose to
the done is his prior debts, that is those debts
incurred by the donor before the donation.
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PROPERTY REVIEWER
XPN: if there is a stipulation that the
future debts will also be covered.
What if there is no stipulation regarding the
debt in the deed of donation?
Generally, the done will make no payment of
the debt, except when the donation is made in
fraud of creditors, in which case the done will
be compelled to pay the creditor.
Art. 759. There being no stipulation regarding
the payment of debts, the donee shall be
responsible therefor only when the donation
has been made in fraud of creditors.
The donation is always presumed to be in
fraud of creditors, when at the time thereof
the donor did not reserve sufficient property
to pay his debts prior to the donation.
When is fraud of creditor presumed?
It is presumed that there is a fraud of creditor
when the donor did not reserve sufficient
property at the time of donation for the full
settlement of his debts.
REVOCATION AND REDUCTION OF DONATION
Art. 760. Every donation inter vivos, made by
a person having no children or descendants,
legitimate or legitimated by subsequent
marriage, or illegitimate, may be revoked or
reduced as provided in the next article, by the
happening of any of these events:
(1) If the donor, after the donation, should
have legitimate or legitimated or illegitimate
children, even though they be posthumous;
(2) If the child of the donor, whom the latter
believed to be dead when he made the
donation, should turn out to be living;
(3) If the donor subsequently adopt a minor
child.
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Upon the happening of this circumstances, will
it be a cause for the reduction or revocation of
the donation?
It is not automatic. It will only be a cause if the
donation exceeds the disposable free portion.
PARAGRAPH 1: BIRTH OF A CHILD
What if the child is illegitimate?
The recognition of the child is necessary so it
will be a ground for the revocation of the
donation.
What if the donor donated a property to B and
he knew he impregnated someone. Will it be a
ground for revocation?
No. the donor knew that he had impregnated
someone, therefore the law assumes that he
made reservations.
It will be different it he is not aware about that
fact, in which case, the danation will still be
valid but it will now be a ground for reduction
or revocation.
NOTE:
AWARE: Only reduction
NOT AWARE: revocation and reduce
Donor made the donation, he already has a
child but it was only after the donation that he
recognized the child. Is it a ground base on par
1?
No. paragraph applies only to birth of child after
the donation.
*Recognition is not a ground for recognition.
Recognition does not affect donation.
DISPOSABLE FREE PORTION – remaining
portion after deducting the legitimes of
compulsory heirs
FREE PORTION –
*No distinction on adopted child. Whether
Art. 762. Upon the revocation or reduction of
the donation by the birth, appearance or
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adoption of a child, the property affected shall
be returned or its value if the donee has sold
the same.
If the property is mortgaged, the donor may
redeem the mortgage, by paying the amount
guaranteed, with a right to recover the same
from the donee.
When the property cannot be returned, it shall
be estimated at what it was worth at the time
of the donation.
What is the duty of the done if the donation os
revoked or reduced on the ground of by birth,
appearance, adoption?
1. If the property is still with him, to
return the property.
2. If the property has been sold, to give
the value to the donor.
3. If the property has been mortgaged, the
donor may pay off the debt, but he can
recover reimbursement from donee.
4. If the property cannot be returned, to
return its value, which is based on the
value at the time of perfection of
donation.
Art. 763. The action for revocation or
reduction on the grounds set forth in article
760 shall prescribe after four years from the
birth of the first child, or from his legitimation,
recognition or adoption, or from the judicial
declaration of filiation, or from the time
information was received regarding the
existence of the child believed dead.
This action cannot be renounced, and is
transmitted, upon the death of the donor, to
his legitimate and illegitimate children and
descendants.
Period of prescription: 4 years, depending on
the ground.
AS TO THE BIRTH OF CHILD: the period shall be
counted from the birth of the child; if there are
several children, from the birth of the first child.
NOTE: if the 4 years has lapsed from the
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birth of the first child, it is already
prescribed and will not be revived by
subsequent birth.
AS TO LEGITIMATION: from the date of
marriage of the parent, the recognition is made
by both parents
*Retroactive
AS TO THE RECOGNITION OF ILLEGITIMATE
CHILD: from the date of recognition of the child
AS TO ADOPTION: from the period of filing the
petition for adoption
AS TO APPEARANCE OF THE CHILD BELIEVED TO
BE DEAD: from the time the information about
his existence was received
Rule in case two cause occur:
-the reckoning point is the period of the first
cause
Is the right of action transmissible?
Yes, provided the donor dies with the 4-year
period of prescription.
Art. 764. The donation shall be revoked at
the instance of the donor, when the donee
fails to comply with any of the conditions
which the former imposed upon the latter.
In this case, the property donated shall be
returned to the donor, the alienations made by
the donee and the mortgages imposed thereon
by him being void, with the limitations
established, with regard to third persons, by
the Mortgage Law and the Land Registration
laws.
What is the remedy of the donor when the
done failed to comply with the condition
imposed?
The remedy of the donor is to file an action for
the revocation of the donation on the ground of
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non-compliance of the donation. The donor
cannot revoke the donation by his own
unilateral act even if the donee has failed to
comply with the condition. A court action is
essential
What is the status of the sale?
It is void because the donee who failed to
comply with the condition never became the
owner of it.
What if it was sold to an innocent purchaser?
The donor will run after the done
Prescriptive period: 4 years from the time of
non-compliance; may be transmitted to the
heir. It is transmissible.
Art. 765. The donation may also be revoked
at the instance of the donor, by reason of
ingratitude in the following cases:
(1) If the donee should commit some offense
against the person, the honor or the property
of the donor, or of his wife or children under
his parental authority;
(2) If the donee imputes to the donor any
criminal offense, or any act involving moral
turpitude, even though he should prove it,
unless the crime or the act has been
committed against the donee himself, his wife
or children under his authority;
(3) If he unduly refuses him support when the
donee is legally or morally bound to give
support to the donor.
*Does not apply to suspensive condition.
Are these exclusive?
Yes. Only these acts will cause the revocation of
the donation.
G.R.: Donation is revocable on the ground of
ingratitude of the done except in:
1. donation mortis causa
2. onerous donation
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PARAGRAPH 1:
- Criminal conviction is not necessary
- It is proved by the filing of the action for
revocation (mere preponderance of
evidence)
Illustration:
A, the donee is married to B. C donated a car to
A. B utter libelous remark against C. Is it a
ground?
No, it must be committed by the donee himself.
The act of ingratitude is a personal matter
between the donee and donor.
What if despite the act of ingratitude against
the donor, te donor did not revoke the
donation, what is the effect of that to the
donation?
It is still valid, it only means the donor pardoned
the donee.
A donated a car to B who utter a libelous
remark to A’s daughter who is 25 years old,
married. Is it a ground?
No. The law provides those under his parental
authority, those who are not yet emancipated.
PARAGRAPH 2:
The imputation must be against the donor, his
spouse, children under his parental authority, if
imputation is made against the donee himself
or the spouse or children of the donee, it is not
a ground for the revocation.
PARAGRAPH 3:
The refusal must be unjustified, meaning it is his
legal or moral obligation but unjustly refuse to
comply with it.
Art. 766. Although the donation is revoked
on account of ingratitude, nevertheless, the
alienations and mortgages effected before the
notation of the complaint for revocation in the
Registry of Property shall subsist.
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*If there is no reaction or act of revocation on
ingratitude done, it is still a valid donation.
Estoppel.
Art. 767. In the case referred to in the first
paragraph of the preceding article, the donor
shall have a right to demand from the donee
the value of property alienated which he
cannot recover from third persons, or the sum
for which the same has been mortgaged.
The value of said property shall be fixed as of
the time of the donation.
Rule:
Alienations and mortgages effected BEFORE the
notation of complaint for revocation:
alienations or mortgages are valid
Alienations and mortgages made AFTER the
notation of complaint for revocation:
alienations or mortgages are void
Illustration:
A give B a parcel of land. B sold to C. B
committed an act of ingratitude to A, the donor.
The donor filed an action for revocation of the
donation on October 4, 2010. The sale was
executed o September 30, 2010. What is the
effect of the filing of the action which is
annotated to the Registry of Deed to the sale?
The annotation for action of the revocation of
donation which was made after the sale does
not make the sale of the property donated void.
What then is the remedy of the Donor?
It is still a ground for the revocation of the
donation, and the law grant the donor the right
to demand from the done the value of the
property at the time of the perfection of he
donee, which he can no longer recover from the
third person.
What if the sale is made October 10, 2010
instead of September 30, 2010?
The sale will no be void since it was made after
the annotation. The remedy of the donor is :
1. Nullification of the sale
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2. Property must be reverted back to the
donor
Art. 768. When the donation is revoked for
any of the causes stated in article 760, or by
reason of ingratitude, or when it is reduced
because it is inofficious, the donee shall not
return the fruits except from the filing of the
complaint.
What must be returned after the revocation of
donation?
As to what must be returned to the donor by
the donee after the revocation of the donation
depends upon the cause of revocation:
FOR NON-COMPLIANCE OF THE CONDITION
IMPOSED:
- Property
- Fruits from the time of non-compliance
of the condition
BASED ON ART 760, ACT OF INGRATITUDE OR
INOFICIOUS:
- Property
- Fruits from the time of filing the action
of revocation
What if the donated thing is a money?
- The money
- The fruit will be the legal interest of 6%
Art. 769. The action granted to the donor by
reason of ingratitude cannot be renounced in
advance. This action prescribes within one
year, to be counted from the time the donor
had knowledge of the fact and it was possible
for him to bring the action.
Is there an advance renunciation?
None. The law allows the donor to revoke the
donation he made, based on the ingratitude of
the donee but he is not allowed to make a
renunciation of actions to revoke in advance.
Prescriptive period on the ground of
ingratitude: 1 year
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*Money? Fruits? Legal interest 6%
Art. 770. This action shall not be transmitted
to the heirs of the donor, if the latter did not
institute the same, although he could have
done so, and even if he should die before the
expiration of one year.
Neither can this action be brought against the
heir of the donee, unless upon the latter's
death the complaint has been filed.
If the ground for the revocation of the donation
is because of ingratitude, the right to file an
action is intransmissible, even if the donor dies
even before the lapse of 1 year
Reason: the act of ingratitude is
personal between the donor and donee
XPN:
- if he died before the lapse of one year
without knowing the act of ingratitude
made against him
- if the action has been brought already
and before the case is terminated, the
donor died, the heir may continue the
case
May the action for revocation of donation be
filed against the heir of donee?
No. the act of ingratitude is personal between
the donee and doner, being so, it cannot be
filed against the heir of the donee. In the the
event the action has already been filed and the
donee died, the heir my be substituted as
parties, but to file it originally against the heir,
notwithstanding death of the donee is not
allowed.
MURDER IS THE INGRATITUDE WHICH CAUSED
THE DONOR’S DEATH. CAN HIS HEIRS FILE FOR
ITS REVOCATION?
Yes, because it is the cause of the death of the
donor.
WHO WILL BE ENTITLED TO THE FRUITS OF THE
PROPERTYS IN CASE OF EXCESSIVE DONATION?
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Lifetime of donor, donee. Death of donors, heirs
of donors. Since revocation only takes effect
upon death of donor.
Art. 771. Donations which in accordance with
the provisions of article 752, are inofficious,
bearing in mind the estimated net value of the
donor's property at the time of his death, shall
be reduced with regard to the excess; but this
reduction shall not prevent the donations from
taking effect during the life of the donor, nor
shall it bar the donee from appropriating the
fruits.
For the reduction of donations the provisions
of this Chapter and of articles 911 and 912 of
this Code shall govern.
Art. 772. Only those who at the time of the
donor's death have a right to the legitime and
their heirs and successors in interest may ask
for the reduction or inofficious donations.
Those referred to in the preceding paragraph
cannot renounce their right during the lifetime
of the donor, either by express declaration, or
by consenting to the donation.
The donees, devisees and legatees, who are
not entitled to the legitime and the creditors
of the deceased can neither ask for the
reduction nor avail themselves thereof.
What is the status of the inofficious donation?
It is void up to the extent of the excess.
Who has the right to file an action?
Only the compulsory heirs.
Are creditors allowed to file an action for being
excessive?
No. he can only file an action to annul the
donation on the ground that it was made with
fraud.
Prescriptive period: 4 years
Art. 773. If, there being two or more
donations, the disposable portion is not
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sufficient to cover all of them, those of the
more recent date shall be suppressed or
reduced with regard to the excess.
rule if disposable donation cannot afford 2 or
more donation:
1. preference is given to earlier made.; the
latter donations must be dropped first
XPN: wedding gifts
2. if the donations were perfected at the
same time:
- the reduction must be proportionate
Grounds for the reduction of donation:
1. the donor did not leave sufficient
property for his own support and that
of his family
2. Art 760
3. Inofficious donation
4. Donation made in fraud of creditors (
amount of judgment is less than the
disposable free portion)
Ground for the suppression of donation:
1. Totally inofficious
2. Non-compliance of condition
3. Ingratitude of the donee
4. Donation is in fraud of creditor (the
amount of judgment is more than the
DFP)
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 UNIVERSITY OF SANTO TOMAS FACULTAD de DERECHO CIVIL 159
PROPERTY REVIEWER

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