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Ad Majorem Dei Gloriam

PROPERTY NOTES

PRELIMINARY PROVISIONS Rights as property

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

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Mickey Ingles
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PROPERTY NOTES

Real Right Personal Right  Transactions involving real property must be recorded in the Registry of
 Definite active subject  Definite active subject and a property to affect 3rd parties. Not required with personal property, except
who has a right against all definite passive subject for chattel mortgage cases.
persons generally as an
indefinite passive subject ------------------------------------ ------------------------------------ ----------------------------
 Object is generally a  Object always an incorporeal
corporeal thing thing Art 415 The following are immovable property:
 Created by ‘mode’ and  Created by ‘title’ 1. Land, buildings, roads, and constructions of all kinds adhered to
‘title’ the soil;
 Extinguished by the loss  Personal right survives the 2. Trees, plants, and growing fruits, while they are attached to the
or destruction of the thing subject matter land or form an integral part of an immovable;
which it is exercised 3. Everything attached to an immovable in a fixed manner, in such a
 Directed against the  Directed against a particular way that it cannot be separated therefrom without breaking the
whole world (actio in rem person (actio in personam) material or deterioration of the object;
against 3rd persons) 4. Statues, reliefs, paintings or other objects for use or
ornamentation, placed in buildings or on lands by the owner of the
What’s the importance of the classification into movables or immovables? immovable in such a manner that it reveals the intention to attach
 In private international law, general rule is that immovables are them permanently to the tenements;
governed by the law of the country in which they are located, whereas 5. Machinery, receptacles, instruments or implements intended by
movables are governed by the personal law of the owner which in cases the owner of the tenement for an industry or works which may be
is the law of his nationality or his domicile carried on ina building or on a piece of land, and which tend
directly to meet the needs of said industry or works;
 In criminal law, usurpation of property can take place only with real
6. Animal houses, pigeon-houses, beehives, fish ponds or breeding
property. On the other hand, robbery and theft can be committed only
places of similar nature, in cases their owner has placed htem or
against personal property
preserves them with the intention to have them permanently
 In procedural law, actions concerning real property are brought in the
attached to the land, and forming a permanent part of it; the
RTC where the property is located, whereas actions involving personal
animals in these places are included;
property are brought in the court where either the defendant or plaintiff
7. Fertilizer actually used on a piece of land;
resides.
8. Mines, quarries, and slag dumps, while the matter thereof forms
o Forcible entry and unlawful detainer for REAL property
part of the bed, and waters either running or stagnant;
o Replevin or manual delivery for PERSONAL
9. Docks and structures which, though floating, are intended by their
 In contracts, only real property can be the subject matter of real nature and object to remain at a fixed place on a river, lake, or
mortgage and antichresis, while only personal property can be the coast;
subject matter of mutuum, voluntary deposit, pledge 10. Contracts for public works, and servitudes and other real rights
 In order that the donation of an immovable may be valid, it must be over immovable property.
made in a public instrument. For movables, may be oral or in writing (if
more than P5000, need only to be in a private instrument) Classes of immovable or real property (NIDA)
 For prescription (4 and 8 years for movables; 10 and 30 years for 1. By nature (cannot be carried from place to place)
immovables) 2. By incorporation (attached to an immovable in a fixed manner to be an
integral part thereof)
3. By destination (placed in an immovable for the utility it gives)

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Ad Majorem Dei Gloriam

PROPERTY NOTES

4. By analogy (by express provision of law because it is regarded as  If temporarily separated, will still be regarded as immovable if there is
united to the immovable property) an intent to put them back (but there are different opinions to this)
 Intent to attach permanently is essential – objects placed by humans
Lands, buildings, roads and constructions of all kinds with intention to permanent annexation lose their identity as movables
 Must adhere to the soil
 Buildings must be more or less of a permanent structure independent of Statues, reliefs, paintings, or other objects for use or ornamentation
and regardless of the ownership of the land on which it is erected since  Immovable when:
the law makes no distinction (so possible to mortgage building even if in o Placed on the immovable by the owner of the latter, and
the land of another, since it’s separate from the land o In such a manner that it reveals the intention to attach them
 Roads, whether public or private, are immovable permanently to the tenements
 Real property treated by the parties as personal property  Not necessarily by him personally, can be by his agent
o A building is by itself an immovable property irrespective of  If placed by a person not the owner like a lessee, the object will not
whether or not said structure and the land on which it is adhere to attain the character of immovable unless such person acts as an agent
belong to the same owner of the owner
o A valid real estate mortgate can be constituted only on the
building erected on the land belonging to another Machinery, receptacles, instruments, or implements for an industry or works
o The parties to a contract of chattel mortgage may, by agreement,  Immovable only when:
treat as personal property that which by nature would be real o Placed by the owner of the tenement or his agent
property (estopped! So they can be subject to a writ of replevin o Industry or works must be carried on in a building or on a piece
between parties) of land
 However, the chattel mortgage is not binding on third o Machinery, etc must tend directly to meet the needs of the said
persons. industry or works
 Machinery which is movable in its nature only becomes immobilized
Trees, plants and growing fruits when placed in plant by the owner of the property or plant, but not when
 Immovable while they are: so placed by a tenant, a usufructuary, or any person having only a
o Attached to the land, or temporary right (Davao Saw Mill v Castillo)
o Form an integral part of an immovable o Exception (becomes immovable):
 Once cut or uprooted, they become movable 1. Such person acted as the agent of the owner, or
 Growing crops or fruits, or ungathered products or fruits, may be treated 2. Lease agreement states that the machines will pass over to
as personal property for the purposes of attachment, execution and the the lessor after the expiration of the lease agreement (US
chattel mortgage law (Sibal v Valdez) Valdez case)
 When growing crops are sold and before they are even harvested, the  Must be essential and be principal elements of an industry or works to
transaction is considered as sale of movables because it is a given that the business, not merely incidental to business (Mindanao Bus
they are to be gathered or harvested for delivery Company v City Assessor)
o Cash registers, typewriters for hotels, restaurants, theaters are
Everything attached to an immovable in a fixed manner merely incidental, these businesses can continue on without
 Attachment must be such that them
o It cannot be separated from the immovable o Machineries of breweries used in the manufacture of liquor,
o Without breaking the material, or though movable by nature, are immobilized because they are
o Deterioration of the object essential to said industries

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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PROPERTY NOTES

 For purposes of taxation, it doesn’t matter who placed the machines – Contracts for public works and servitudes and other real rights over
the owner or mere lessee, as long as it is essential and principal immovables
elements of an industry. The term ‘real property’ may include things  Where the res of a real right is real property, the right itself is real
which should generally as personal property. It is a familiar property. So ownership is real property if the thing owned is immovable
phenomenon to see things classified as real property for purposes of o Loan is real property by analogy if secured by a real estate
taxation which on general principle might be considered personal mortgage
property. (Meralco v Central Board of Assessment Appeals – in this  Where it is personal property, the right itself is personal property
case, the storage tanks were placed by Meralco, who wasn’t the owner o Exception: case of contracts for public works which are
of the land, but it was still considered immovable) considered real property
 Attachment or incorporation to immovable not essential, since they 
become immovable because of destination, what is essential is their
utility
CHAPTER TWO: MOVABLE PROPERTY
Animal houses, pigeon houses, beehives, fish ponds or breeding places of
Art 416 The following things are deemed to be personal property:
similar nature
1. Those movables susceptible of appropriation which are not
 Considered immovable: included in the preceding article;
o In case their owner has placed them or preserves them 2. Real property which by any special provision of law is considered
o With the intention to have them permanently attached to the as personalty;
land 3. Forces of nature which are brought under control by science; and
o And forming a permanent part of it. 4. In general, all things which can be transported from place to place
o The animals in these places are included. without impairment of the real property to which they are fixed.
 Must permanently form part of the land and so intended by the owner
Art 417 The following are also considered as personal property:
Fertilizers actually used on a piece of land 1. Obligations and actions which have for their object movables or
 Immovable when demandable sums;
o Actually used on a piece of land 2. Shares of stock of agricultural, commercial and industrial entities,
 Fertilizers kept in a barn are not immovable although they may have real estate.

Mines, quarries and slag dumps Classes of movable or personal property

 Immovable when 1. Property not included in Art 415
o While the matter thereof forms part of the bed 2. Considered personal property by special provision of law
o Meaning, the matter thereof remains unsevered from the soil 3. Forces of nature brought under control by science
 Waters, either running or stagnant, are classified as immovables 4. In general, all movable things
a. Whether the property can be transported or carried
Docks and structures, though floating from place to place;
 Immovable if b. Whether such change of lacation can be made
o Intended by their nature and object without injuring the immovable to which the object
o To remain at a fixed place on may be attached, and
o A river, lake or coasts c. Whether the object does not fall within any one of the
cases in Art 415

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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PROPERTY NOTES

5. Obligations and actions (personal rights, they having a definite a. The state in its private capacity; known as patrimonial property
passive subject) b. Private persons, either individually or collectively
6. Shares of stock
7. Other incorporeal personal property Property is presumed to be State property in the absence of any showing to
a. Intellectual property such as copyrights, patents, etc the contrary. (Regalian Doctrine)

Art 418 Movable property is either consumable or non-consumable. To What’s dominion?

the first class belong those movables which cannot be used in a 1. Not owned by the State but simply under its jurisdiction and
manner appropriate to their nature without their being consumed; to administration for the collective enjoyment of all the people of the State
the second class belong all the others. 2. Purpose is to serve the citizens, not the State as juridical person
3. Rises from the fact that the State is the juridical representative of the
Importance of classification: social group
 Consumable goods cannot be the subject matter of a commodatum
(unless for mere exhibition) Art 420 The following things are property of public dominion:
 In a mutuum, the subject matter is money or other consumable thing 1. Those intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the States, banks
Consumable shores, roadsteads and others of similar character
 Depends on nature of thing itself 2. Those which belong to the State, without being for public use,
 Can’t be used in a manner appropriate to their nature without being and are intended for some public service or for the
consumed development of the national wealth

Fungible Three kinds of public dominion property

 Depends on the intention or purpose of the parties 1. Intended for public use
 Can be substitute by another thing of the same kind, quantity and  Can be used by everybody
quality 2. Not for public use but intended for some specific public service
 Only be used by duly authorized people, such as government
 Money, while characterized as a movable, is generic and fungible. (BPI buildings, etc
v Franco) 3. Intended for the development of national wealth, even if not employed
for public use or service
 Minerals, coal, oil, forests
CHAPTER THREE: PROPERTY IN RELATION TO WHOM IT
Charging of fees to the public does not affect the public character of the road
BELONGS or its character as property for public use.
Art 419 Property is either of public dominion or of private ownership What are other property of similar character to those intended for public
use?
Property is either of 1. Public streams, river channels, river beds, etc
1. Public dominion or property owned by the State (or its subdivisions) in 2. Accretions to the shores of the sea
its public or sovereign capacity and intended for public use and not for 3. Submerged lands or lands reclaimed from the sea by the government
the use of the State as a juridical person
2. Private ownership or property owned by:

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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PROPERTY NOTES

 Mere reclamation of certain foreshore land does not convert these  Lands of the public domain
inalienable natural resources of the state into alienable or  Does not include all lands of government ownership but only so much of
disposable lands of the public domain. said lands as are thrown open to private appropriation and settlement
 There must be a law or proclamation officially classifying them by homestead law
such.
4. Lands that disappeared into the sea Government lands
5. Canals constructed on private lands of private ownership but the owner  Broader term
loses his proprietary right over said canal through prescription by  Includes not only public lands, but also…
allowing the public to use it for transportation 1. other lands of the government already reserved or devoted to
6. Foreshore lands when the sea moved toward an estate and the tide public use,
invade it, the invaded property becomes foreshore and passes to the 2. or subject to private rights,
public realm 3. and patrimonial lands
- Foreshore land is the strip of land that lies between the high and
low water marks Alienation of public agricultural land
7. Lot on which stairways were built for the use of the people as  Unless pubic land is shown to have been reclassified and alienated by
passageway to the highway the State to a private person, it remains part of the inalienable public
domain
 Roads refer to those constructed by the national government  All other lands are presumed to belong to the State
 Canals constructed by private persons over private lands are of private
ownership Art 421 All other property of the State, which is not of the character
 Roadstead is a place less sheltered or enclosed than a harbor where stated in the preceding article, is patrimonial property.
ships may ride at anchor
Patrimonial property
Properties of public dominion are outside of the commerce of man. Again,  Property of the State owned by it in its private or proprietary character
their purpose is to serve the citizens.  Not for public use, service or development of the national
They can not be the object of appropriation either by the State or private wealth
persons.  May be acquired by private individuals or juridical persons through
So… prescription; can be the object of an ordinary contract
1. Cannot be sold, leased or be the subject of contracts
2. Cannot be acquired by prescription, not even by municipalities as Art 422 Property of public dominion, when no longer intended for
against the State public use or for public service, shall form part of the patrimonial
3. Cannot be encumbered, attached, or be subject to levy and sold at property of the State.
public auction.
4. Cannot be burdened with easements Property of the National Government
5. Cannot be registered under the land registration law and be the subject  Not self-executing
of a Torrens title  There must be a formal declaration by the executive (exercised by the
 Inclusion of public dominion property does not confer title on the President) or possibly legislative department that the property is no
registrant longer needed for public use or for public service before the same can
be classified as patrimonial property
Public lands v Government lands  A positive act declaring land as alienable and disposable is required
Public lands 1. Presidential proclamation or executive order

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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PROPERTY NOTES

2. Administrative action possession has been enjoyed during the period necessary to establish a
3. Investigation reports of Bureau of Lands investigators presumption of ownership.
4. Legislative act or a statute (Sec of DENR v Yap)  If the property is owned by the municipality in its public and
 Classification of public lands is the exclusive prerogative of the governmental capacity, the property is public and Congress has
Executive Department – courts have no authority (Sec of DENR v Yap) absolute control over it.
 Abandonment cannot be inferred from non-use. (Roponggi case)  If it is owned in its private or proprietary capacity, then it is patrimonial
 Two requisites for judicial confirmation of imperfect or incomplete title, and Congress has no control over it. (page 63, de Leon)
under CA 141
1. open, continuous, exclusive and notorious possession and Case doctrines:
occupation of the subject land by himself or through his  The use of subdivision roads by the general public does not strip it of its
predecessors-in-interest under a bona fide cliam of ownership private character.
since time immemorial or from June 12, 1945  Transfer of ownership from the subdivision owner-developer to the local
2. classification of the land as alienable and disposable land of government is not automatic but requires a positive act from the owner-
the public domain (Sec of DENR v Yap) developer before the city or municipality can acquire dominion over the
 Unclassified land? Considered as forest land (Sec of DENR v Yap) subdivision roads. Until and unless the roads are donated, ownership
remains with the owner-developer. (Woodridge School, Inc v ARB
Property of Political Subdivisions Construction Co, Inc)
 For provinces, cities and municipalities, the conversion must be
authorized by law Art 425 Property of private ownership, besides the patrimonial property
 Municipal corporation has discretionary power to withdraw a street from of the State, provinces, cities, and municipalities, consists of all
public use and sell it. (Cebu Oxygen v Becilles) property belonging to private persons, either individually or
collectively.
Art 423 The property of provinces, cities, and municipalities is divided
into property for public use and patrimonial property. Private property
1. Belonging to private persons, either individually or collectively
Art 424 Property for public use, in the provinces, cities, and 2. Belonging to the State and any of its subdivisions which are patrimonial
municipalities, consist of the provincial roads, city streets, municipal in nature
streets, the squares, fountains, public waters, promenades, and public
works for public service paid for by said provinces, cities or  There is nothing that will prohibit churches from alienating things
municipalities. classified into ‘sacred, religious, and holy.’

All other property possessed by any of them is patrimonial and shall Art 426 Whenever by provision of law, or an individual declaration, the
be governed by this Code, without prejudice to the provisions of expression “immovable things or property” or “movable things or
special laws. property” is used, it shall be deemed to include, respectively, the
things enumerated in Chapter 1 and Chapter 2.
Property of Political Subdivisions Whenever the word “muebles” or “furniture,” is used alone, it
 Note that the articles speak of property for public use, indicating that shall not be deemed to include money, credits, commercial securities,
properties for public service are patrimonial. (ambulance of the local stocks and bonds, jewelry, scientific or aristic collections, books,
government) medals, arms, clothing, horses or carriages and their accessories,
 Political subdivisions cannot register as their own any part of the public grains, liquids and merchandise, or other thing which do no have as
domain, unless it is first shown that a grant thereof has been made or their principal object the furnishing or ornamenting of a building,

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please! 
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PROPERTY NOTES

except where from the context of the law, or of the individual Right to possess or jus possidendi
declaration, the contrary clearly appears.  right to hold a thing or enjoy a right (Art 523)
 may be exercised in one’s own name or in that of another
TITLE II – OWNERSHIP 1. Right to use not necessarily included
CHAPTER ONE: OWNERSHIP IN GENERAL  May be in the concept of an owner or a mere holder with the
ownership pertaining to another
Art 427 Ownership may be exercise over things or rights  Right to possess does not always include the right to use
2. Judgment of ownership may not include possession
Ownership is the…  Person may be declared owner but he may not be entitled to
 Independent right of a person to the exclusive enjoyment and control of possession which may be in the hands of another such as a tenant
a thing  But! This doctrine may be invoked only where the actual possessor
 Including its disposition and recovery subject only to the has some rights which must be respected
restrictions or limitations established by law and the rights of 3. Where claim to possession based on claim of ownership
others  Where the ownership of a property was decided in a judgment, the
delivery of possession should be considered included in the
Beneficial Ownership decision where the defeated party’s claim to the possession is
 Ownership recognized by law and capable of being enforced in court based on his claim of ownership
 Right to enjoyment in one person, legal title is in another 4. Duty of vendor to deliver possession of thing sold
 Contract of sale, vendor bound not only to transfer ownership, but
Naked Ownership also deliver
 Enjoyment of all the benefits and privileges of ownership  Considered delivered only when vendee has control and
possession
Ownership may be exercised over things or rights
1. Thing – usually refers to corporeal property Right to use and enjoy or jus utendi
2. Rights – whether real or personal, res of rights may be corporeal or  necessarily includes the right to transform and the right to exclude any
incorporeal person from the enjoyment and disposal thereof
 he may use such force as may be reasonably necessary to repel or
Art 428 The owner has the right to enjoy and dispose of a thing, prevent an actual or threatened unlawful physical invasion or usurpation
without other limitations than those established by law. (Art 429)
The owner has also a right of action against the holder and possessor  he may enclose or fence his property (Art 430)
of a thing in order to recover it.  limited because he cannot make use of such property in a manner to
injure the rights of a third person
The seven jus-es
1. Possidendi Right to receive the fruits and accessories or jus fruendi and accessionis
2. Utendi  ownership gives the right by accession to everything which is produced
3. Fruendi thereby (see art 440)
4. Accessionis
5. Abutendi Right to consume or jus abutendi
6. Disponendi  right of the owner to consume a thing by its use – the use that
7. Vindicandi extinguishes

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Mickey Ingles
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ii. Unlawful deprivation of the possession of any land or

Right to dispose or alienate or jus disponendi building, by force, intimidation, threat, strategy or
 either totally (sale or donation) or partially (pledge, mortgage, etc) stealth
 includes right not to dispose iii. Filed within 1 year from date of actual entry (but for
 duty of vendor to transfer ownership cases of stealth and strategy, from date of knowledge
o vendor must be the owner or authorized to sell thing of actual knowledge)
o sufficient that he be the owner at the time of the delivery of the iv. At the MTC where property is located
thing sold
 only the absolute owner can pledge or mortgage one’s property  Unlawful detainer
Requisites:
Right to recover possession and/or ownership or jus vindicandi i. Instituted by landlord, vendor, vendee or other person
 true owner must resort to judicial process for the recovery of the against who the possession of any land or building is
property unlawfully withheld
 he cannot take the law into his own hands ii. Unlawful possession after the expiration or
termination of the right to hold possession (by virtue
Actions available to recover possession and/or ownership of contract, etc)
iii. Filed within 1 year from date of last demand to vacate
1. Recovery of personal property: Remedy of Replevin or manual delivery iv. at the MTC where property is located
of personal property  For unlawful detainer, it is essential that the plaintiff’s supposed acts of
Requisites (Rule 60, Rules of Court): tolerance must have been present right from the start of the possession
Applicant must show by his own affidavit or that of some other person which is later sought to be recovered (Valdez, jr v CA)
who personally knows the facts:  Only issue involved in both is mere physical or material possession
i. That the applicant is the owner of the property (possession de facto), not juridical or civil possession (possession de
claimed, particularly describing it, OR is entitled to the jure)
possession thereof  Plaintiff need only to allege and prove prior possession de facto and
ii. That the property is wrongfully detained by the undue deprivation thereof
adverse party, alleging the cause of detention thereof  It’s a quieting process
according to the best of his knowledge, information  Summary in nature (to solve the problem quickly and to protect the
and belief rights of the possessor)
 Applicant has burden of proving his ownership or right of  Difference between the two is the time when possession became
possession over the property in question unlawful – forcible entry: time of entry; unlawful detainer: possession at
 Both a principal remedy (regain possession) and a provisional first was legal, then became illegal
remedy (allow the plaintiff to retain the thing wrongfully  If complaint fails to aver facts constitutive of forcible entry or unlawful
detained by another pendente lite) detainer as when it does not state how entry was effected or how and
2. Recovery of real property: when the dispossession started, the remedy should either be accion
Forcible entry and unlawful detainer (accion interdictal) publiciana or an accion reinvindicatoria (Valdez, jr v CA)
 Forcible entry o Must be apparent in the face of the complaint (Sarmiento v
Requisites: CA)
i. Instituted by person deprived of possession  Jurisdictional facts – what does a plaintiff have to allege?
o For unlawful detainer
i. Plaintiff’s right over property (describing the property)

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ii. Prior lawful possession i. Must be within a period of ten years otherwise the real
i. If by tolerance, acts of tolerance must have been right of possession is lost
present right from the start of the possession ii. One who claims to have a better right must prove not only
ii. If by lease, contractual agreement must be shown his right but also the identity of the property claimed
iii. Became unlawful (by termination of lease contract or non- iii. Filed in the RTC where the property is located
payment of rents)  Issue involved is possession de jure of realty independently of title (as
iv. Extrajudicial demand to vacate compared to interdictal, possession de facto)
i. If by non-payment, demand letter to PAY RENTS and  Judgment rendered here is conclusive only on the question of
VACATE premises (bar question) possession, not that of ownership
v. Within one year from last demand  Jurisdictional facts?
1. Right of plaintiff over property
 Can the MTC rule on the issue of ownership in an ejectment case? 2. Period to bring interdictal has expired
Yes! But only provisionally. 3. Don’t know na. 
 The primal rule is that the principal issue must be that of
possession, and that ownership is merely ancillary, in which case Action to recover possession based on ownership (accion reivindicatoria)
the issue of ownership may be resolved but only for the purpose of Requisites:
determining the issue of possession. i. Right of plaintiff over property
 It must sufficiently appear from the allegations in the complaint that ii. Filed at the RTC where the property is located
what the plaintiff really and primarily seeks is the restoration of
possession.  Seeks recovery of possession based on ownership, with claim of title
 Inferior court cannot adjudicate on the nature of ownership where  Issue involved is ownership which ordinarily includes possession,
the relationship of lessor and lessee has been sufficiently although a person may be declared owner but he may not be entitled to
established in the ejectment case, unless it is sufficiently possession because the possessor has some rights which must be
established that there has been a subsequent change in or respected
termination of the relationship between the parties.  Action for reconveyance – prescribes in 10 years from the point of the
 The rule in forcible entry cases, but not in those for unlawful registration of the deed or the date of issuance of the certificate of title
detainer, is that a party who can prove prior possession can (check book!); 4 years in cases of fraud counted therefrom on date of
recover such possession even against the owner himself. He has issuance of the certificate of title over the property
the security that entitles him to remain on the property until he is o Action for reconveyance based on fraud and where plaintiff is
lawfully ejected by a person having a better right through an accion in possession of the property subject of the acts does not
publiciana or accion reinvindicatoria prescribe. (Leyson v Bontuyan)
 Where the question of how has prior possession hinges on the o NB: Should not have passed to a third person.
question of who the real owner of the disputed portion is, the
inferior court may resolve the issue of ownership and make a All three actions are actions in personam.
declaration as to the owner. But, it is merely provisional, and does
not bar nor prejudice an action between the same parties involving Injunction as a remedy for recovery of possession
the title to the land. (Asis v Asis Vda de Guevarra, 2008)  Injunction is a judicial process whereby a person is required to do or
refrain from doing a particular thing.
Plenary action to recover possession (accion publiciana)  General rule: Court should not by means of a preliminary injunction
Requisites: transfer property in litigation from the possession of one party to
another.

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 In order that a preliminary injunction may be granted at any time after  When there is a clear finding of right of ownership and possession of a
the commencement of the action and before judgment: land in favor of the party who claims the subject property in possession
Requisites: of another is the undisputed owner as where the property is covered by
i. there must exist a clear and positive right over the a Torrens title pointing to the party as the owner. (Of course, check the
property in question which should be judicially protected issuance of the title if it was in bad faith)
through the writ; and  When urgency, expediency and necessity require immediate
ii. the acts against which the injunction is to be directed are possession as where material and irreparable injury will be done which
violative of such right cannot be compensated by damages.
 What if there is someone actually possessing the property sought to
recover? Writ of possession as a remedy
o Person not ordinarily allowed to avail of remedy of preliminary  Writ of possession is an order whereby a sheriff is commanded to place
preventive or mandatory injunction but must bring the a person in possession of a real or personal property, such as when a
necessary action for the recovery of possession. property is extrajudicially foreclosed.
 Injunctive relief will not be granted to take property out of the  Improper to eject another from possession, unless sought in connection
possession or control of one party and place it in that of another whose with a:
title… 1. Land registration proceeding
o Has not been clearly established, or 2. Foreclosure of mortgage, provided, that no third person has
o Who did not have such possession or control at the inception intervened (PNB v CA – in this case, a third person was
of the case occupying the lot subject to the writ. The SC held that the an
 Proper function is to maintain the status quo ex-parte petition for issuance of a possessory writ is not the
 Injunction cannot be a substitute for other suits for recovery of judicial process referred to in Art 433);
possession, hence, its denial will not bar the institution of the more 3. Execution sales
appropriate remedy
 Why? Well, a writ of injunction is an equitable relief; determination of Limitations on the right of ownership
title is a legal remedy – that’s why Limited by
1. by the State’s power to tax, police power, and eminent domain
When can injunction be allowed? 2. those imposed by law such as legal easement
 In actions for forcible entry, the dispossessed plaintiff may file, within ten 3. those imposed by the owner himself, such as voluntary
days from filing of the complaint, a motion for a writ of preliminary easement
mandatory injunction to restore him in possession. 4. those imposed by the grantor of the property on the grantee
o The court MAY grant In order to prevent the defendant from 5. those arising from conflicts of private rights which take place in
committing further acts of dispossession during the pendency accession continua
of the case 6. prohibition against the acquisition of private lands by aliens
o Issue of ownership may not be put in issue
 Ejectment cases where the appeal is taken, the lessor is given the same Art 429 The owner or lawful possessor of a thing has the right to
remedy granted above. exclude any person from the enjoyment and disposal thereof. For this
 Where the actual possessor of the property who is admittedly the purpose, he may use such force as ay be reasonably necessary to
owner, seeks protection from repeated or further intrusions into his repel or prevent an actual or threatened unlawful physical invasion or
property. usurpation of his property.
o Even if it turns out that he isn’t the owner, he may still avail of
the equitable remedy of injunction to protect his possession. Principle of self-help

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Requisites: Art 433 Actual possession under claim of ownership raises a

i. Person defending must be the owner or lawful possessor disputable presumption of ownership. The true owner must resort to
ii. Use of reasonable force judicial process for the recovery of the property.
iii. Only be exercised at the time of an actual or threatened
dispossession (no delay)  Applies to both immovable and movable property
iv. Actual or threatened physical invasion or usurpation which is Requisites to raise the disputable presumption of ownership:
unlawful i. Actual (physical or material) possession of the property
ii. Possession must be under claim of ownership
Read with Art 19 of the Civil Code.
Judicial process contemplated
Art 430 Every owner may enclose or fence his land or tenements by  Means ejectment suit or reinvidicatory action
means of walls, ditches, live or dead hedges, or by any other means  Ex-parte petition for issuance of a possessory writ is not a judicial
without detriment to servitudes constituted thereon. process, as it is non-litigious (PNB v CA)

Right to enclose or fence Art 434 In an action to recover, the property must be identified, and the
 Limited by existing servitudes imposed on the land or tenement plaintiff must rely on the strength of his title and not on the weakness
of the defendant’s claim.
Art 431 The owner of a thing cannot make use thereof in such manner
as to injure the rights of a third person. Requisites:
i. Person who claims that he has a better right to the property must
Art 432 The owner of a thing has no right to prohibit the interference of satisfactorily prove both ownership and identity
another with the same, if the interference is necessary to avert an ii. Burden of proof lies on the party who substantially asserts the
imminent danger and the threatened damage, compared to the damage affirmative of an issue
arising to the owner from the from the interference, is much greater. iii. Reliance on strength of evidence and not upon the weakness of the
The owner may demand from the person benefited indemnity for the opposing party
damage to him.
 Party who desires to recover must fix the identity of the land claimed by
State of necessity describing the location, area and boundaries thereof
General rule: a person cannot interfere with the right of ownership of another o If a party fails to identify sufficiently and satisfactorily the land
Exception: State of necessity, but of course, civil indemnification can be which he claims as his own, his action must necessarily fail
asked for o While the identity of the property must be established, it is not
necessary for the plaintiff to establish the precise location and
Requisites: extent of the lands claimed or occupied by the defendant
i. interference is necessary to avert an imminent danger and the  General rule: where there is a conflict between the area and boundaries
threatened damage to actor or a third person (but the damage of a land, the latter prevails.
must be proportionate and reasonable) o An area delimited by boundaries properly identifies a parcel of
ii. imminent danger or threatening damage must be much greater land
than the damage arising to the owner of the property Exception: where the boundaries relied upon do not identify the
land beyond doubt
o In such cases where there appears to be an overlapping of
boundaries, the actual size of the property gains importance.

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Should the requirements be not first complied with, restore the property to
Equiponderance of evidence? Rule for defendant. his possession.
 But can be lost by estoppel or acquiescence
Evidence to prove ownership
1. A Torrens title Art 436 When any property is condemned or seized by competent
2. Title from the Spanish government authority in the interest of health, safety or security, the owner thereof
3. Patent duly registered in the Registry of Property shall not be entitled to compensation, unless he can show that such
4. Deed of sale condemnation or seizure is unjustified.
5. Operating a business for nine years in defendant’s own name, without
protest of plaintiff Condemnation or seizure of property in exercise of police power
6. Occupation of a building for a long time without payment of rent  Relates to use and enjoyment not ownership of property
7. Letter in which defendant recognized the ownership of the property by  No taking of property involved
the plaintiff (estoppel)  Persons affected not entitled to financial compensation
8. Open, continuous, exclusive, adverse and notorious actual possession
and occupation of parcels of land 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
Indicia of claim of ownership any plantations and excavations which he may deem proper, without
1. Tax declarations and tax receipts – only prima facie evidence of detriment to servitudes and subject to special laws and ordinances. He
ownership or possession; but they are good indicia of possession in the cannot complain of the reasonable requirements of aerial navigation.
concept of owner
Surface rights of a landowner
Conclusiveness of certificates of title Right of the owner of a parcel of land to construct any works or make any
 Indicates true and legal ownership of a private land and should be plantations and excavations on his land is subject to: (SLERRt)
accorded great weight as against tax declarations 1. Special laws
o but is not conclusive if the land had already been previously 2. Local ordinances
registered 3. Existing servitudes or easements
4. Reasonable requirements of aerial navigation
Art 435 No person shall be deprived of the property except by 5. Rights of third persons
competent authority and for public use and always upon payment of
just compensation. Limitations imposed by special laws
Should this requirement be not first complied with, the courts shall  Includes the regalian doctrine
protect, and in a proper case, restore the owner in his possession.  Ownership of said land does not give him the right to extract or utilize
the said minerals without the permission of the State to which said
Power of eminent domain minerals belong
Requisites: o For the loss sustained by such owner, he is entitled to just
i. Taking must be done by competent authority compensation under mining laws or expropriation proceedings
ii. Must be for public use
iii. Owner paid just compensation -------------------------------------------------------------------------
iv. Requirement of due process of law must be observed

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Art 438 Hidden treasure belongs to the owner of the land, building, or improvements upon a thing the principal for the latter’s
other property on which it is found.  includes building, planting and embellishment, better use or
Nevertheless, when the discovery is made on the property of sowing completion
another, or of the state or any of its sub-divisions, and by chance, one-  alluvion, avulsion, change of  necessary to principal thing
half thereof shall be allowed to the finder. If the finder is a trespasser, course of rivers, formation of
eh shall not be entitled to any share of the treasure. islands example: key of a house, bow of a
If the things found be of interest to science or the arts, the  not necessary to the principal violin
State may acquire them at their just price, which shall be divided in thing
conformity with the rule stated.

Art 439 By treasure is understood, for legal purposes, any hidden and Accession, not a mode of acquiring ownership
unknown deposit of money, jewelry, or other precious objects, the  Merely a consequence of ownership
lawful ownership of which does not appear.  Exercise of the right of ownership
 Since the law itself gives the right, accession may, IN A SENSE, be
Requisites:
considered as a mode of acquiring property under the law
i. Deposit of money, jewelry or other precious objects
ii. Hidden and unknown
Kinds of accession
iii. Lawful ownership of which does not appear
1. Accession discreta
 Extension of the right of ownership of a person to the products of a
thing which belongs to such a person
CHAPTER TWO: RIGHT OF ACCESSION  Includes natural, industrial, and civil fruits (Art 441)
GENERAL PROVISIONS 2. Accession continua
SECTION I – RIGHT OF ACCESSION WITH RESPECT TO  Extension of the right of ownership to that which is incorporated or
WHAT IS PRODUCED BY PROPERTY attached to a thing which belongs to such person
 May take place:
Art 440 The ownership of property gives the right by accession to  With respect to real property
everything which is produced thereby, or which is incorporated or  Accession industrial (building, planting, sowing); or
attached thereto, either naturally or artificially.  Accession natural (alluvion, avulsion, change of river
course, and formation of islands)
Accession defined  With respect to personal property
Accession is the right of the owner of a thing, real or personal, to become  Conjunction (attachment, engraftment)
the owner of everything which is:  Commixtion or confusion
1. produced thereby,  Specification
2. incorporated
3. attached thereto, Art 441 To the owner belongs:
either naturally or artificially. o The natural fruits;
o The industrial fruits;
Accession Accessory o The civil fruits.

 fruits of, additions to,  things joined to, included with Art 441 refers to accession discreta

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1. Rents of buildings
Right of owner to the fruits 2. Prices of leases (rents) of lands and other property (including movables)
General rule: All fruits belong to the owner of a thing. 3. Amount of perpetual or life annuities or other similar income
Exception: A person, other than the owner of a property, owns the fruits
thereof: Art 443 He who receives the fruits has the obligation to pay the
1. possession in good faith by another (possessor entitled to the fruits expenses made by a third person in their production, gathering, and
received before possession is legally interrupted) preservation.
2. usufruct (usufructuary entitled to all the fruits of the property on usufruct)
3. lease of rural lands (lessee gets fruits, lessor gets rents) Art 443 applies when:
4. pledge (pledgee gets fruits, etc but with the obligation to compensate 1. Owner of property recovers the property from a possessor and the
what he receives with those which are owing him) possessor has not yet received the fruits although they may have
5. antichresis (creditor acquires the fruits of his debtor’s immovable, but already been gathered or harvested; or
with the obligation to apply them first to the interest and then to the 2. The possessor has already received the fruits but is ordered to
principal amount of the credit) return the same to the owner

Art 442 Natural fruits are the spontaneous products of the soil, and the In both cases, the owner is obliged to reimburse the previous possessor for
young and other products of animals. the expenses incurred by the latter.
Industrial fruits are those produced by lands of any kind
through cultivation or labor. What if the possessor is in bad faith?
Civil fruits are the rents of buildings, the price of leases of  The owner cannot excuse himself from his obligation by alleging bad
lands and other property and the amount of perpetual or life annuities faith on the part of the possessor because the law makes no distinction
or other similar income.
When does good faith/bad faith come into play?
Natural fruits  When the goods have yet to be gathered.
Two kinds:  Under 449, a BPS in bad faith has no right of reimbursement for
1. Spontaneous products of the soil (not through human cultivation or expenses, nor to the fruits. Only for the necessary expenses of
labor), and preservation of land.
2. Young and other products of animals (chicks, eggs, wool, milk)
What if the expenses exceed the fruits?
 The second kind is considered as natural fruits whatever care or  The owner must pay the expenses just the same because the law
management, scientific or otherwise, may have been given by man makes no distinction
since the law makes no distinction.  But keep in mind that the owner only pays for the expenses for
 Puppies, while cute, bred by a professional breeder are still production, gathering and preservation – not improvement.
natural fruits
Art 444 Only such as are manifest or born are considered as natural or
Industrial fruits industrial fruits.
 Those products which are borne through the cultivation or labor of With respect to animals, it is sufficient that they are in the
humans womb of the mother, although unborn.
 Usually cultivated for a purpose
When natural fruits and industrial fruits deemed to exist
Civil fruits

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1. Plants which produce only one crop and then perish (rice, corn, sugar): Exception: Art 120 of the Family Code
from the time the seedlings appear from the ground
2. Plants and trees which live for years and give periodic fruits (mangoes, Definitions:
oranges, epols): deemed existing until they actually appear on the 1. Building – generic term for all architectural work with roof built for the
plants or trees purpose of being used as man’s dwelling, or for offices, clubs, theaters,
3. Animals: beginning of the maximum ordinary period of gestation (when etc.
there can be no doubt that they are already in the womb of the mum) 2. Repairs – putting of something back into the condition in which it was
4. Fowls: the fact of appearance of chicks should retroact to the beginning originally in (not an improvement)
of incubation
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
SECTION II – RIGHT OF ACCESSION WITH RESPECT TO land, subject to the provisions of the following articles.
IMMOVABLE PROPERTY  Owner of land must be known for this article to apply
Section 2 deals with one kind of accession continua, that of immovables. It Art 446 All works, sowing, and planting are presumed made by the
comprehends accession industrial (445-456) and accession natural (457- owner and at his expense, unless the contrary is proved.
465).
Certain basic principles must be kept in mind: Disputable presumptions as to improvements:
1. Accession follows the principal 1. The works, sowing, and planting were made by the owner. and
 Owner of the principal acquires the ownership of the accession 2. They were made at the owner’s expense.
2. Incorporation or union must be intimate
 Removal or separation cannot be effected without substantial injury He who alleges the contrary of these presumptions has the burden of proof.
to either or both
3. Effect of good faith and bad faith Art 447 The owner of the land who makes thereon, personally or
 Good faith exonerates a person from punitive liability but bad faith through another, paintings, constructions or works with the materials
may give rise to dire consequences of another, shall pay their value; and if he acted in bad faith, he shall
 General rule: person who acts in bad faith has no rights also be obliged to the reparation of damages. The owner of the
 Exception: person who is in good faith or bad faith is entitled to materials shall have the right to remove them only incase he can do so
reimbursement for necessary expenses or preservation (452) as without injury to the work constructed, or without the plantings,
well as expenses for cultivation, gathering and preservation (443) constructions or works being destroyed. However, if the landowner
4. Effect of both parties in bad faith acted in bad faith, the owner of the materials may remove them in any
 Bad faith of one neutralizes bad faith of the other event, with a right to be indemnified for damages.
 Neither party may demand as a matter of right the removal of the
improvements against the will of the other for such right is available Applies when the owner of the property uses the materials of another.
only to a party in good faith where the other is in bad faith
5. Unjust enrichment Landowner-Builder/Planter/Sower Owner of Materials
Good faith Good faith
General rule on accession industrial LO-BPS can acquire the materials Entitled to full payment for value of
Art 445 and 446 give the general rule that the accessory follows the provided there is full payment materials, or
principal. May remove materials provided

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there is no substantial injury to work Art 451 In case of the two preceding articles, the landowner is entitled
done to damages from the builder, planter or sower.
Bad faith Good faith
Acquire the materials provided he Entitled to full payment for value of Art 452 The builder, planter or sower in bad faith is entitled to
pays full payment plus damages materials plus damages, or reimbursement for the necessary expenses of preservation of the land.
Remove materials even if there will
be substantial injury to work done Art 453 If there was bad faith, not only on the part of the person who
plus damages built, planted or sowed on the land of another, but also on the part of
Good faith Bad faith the owner of such land, the rights of one and the other shall be the
Acquire materials without paying for Loses materials without indemnity same as though both had acted in bad faith.
the value thereof and entitled to and will be liable for damages due to It is understood that there is bad faith on the part of the
damages due to defects or inferior defects or inferior quality of materials landowner whenever the act was done with his knowledge and without
quality of materials opposition on his part.
Bad faith Bad faith
Same as when both are in good Art 454 When the landowner acted in bad faith and the builder, planter
faith. or sower proceeded in good faith, the provisions of article 447 shall
apply.

Art 448 The owner of the land on which anything has been built, sown What’s good faith?
or planted in good faith, shall have the right to appropriate as his own Consists in the:
the works, sowing or planting, after payment of the indemnity provided 1. Honest belief that the land he is building, planting, sowing on is his or
for in articles 546 and 548, or to oblige the one who built or planted to that by some title, he has a right to build, plant, sow on it; and
pay the price of the land, and the one who sowed, the proper rent. 2. Ignorance of any defect or flaw in his title
However, the builder or planter cannot be obliged to buy the land if its
value is considerably more than that that of the building or trees. In Abrenica definition: State of mind at the time he built the improvements
such case, he shall pay reasonable rent, if the owner of the land does (Pleasantville case)
not choose to appropriate the building or trees after proper indemnity.
The parties shall agree upon the terms of the lease and in case of Usually, it applies to building, planting, sowing in the concept of ownership.
disagreement, the court shall fix the terms thereof. But the Supreme Court has expanded its coverage to
1. Cases wherein a builder had constructed improvements with the
Art 449 He who builds, plants or sows in bad faith on the land of consent of the owner
another, loses what is built, planted or sown without right to indemnity. 2. Builders in good faith who relied on the consent of another whom they
have mistakenly believed to be the owner of the land
Art 450 The owner of the land on which anything has been built, 3. To children who built improvement on a land belonging to their parents
planted or sown in bad faith may demand the demolition of the work, or with their parents consent (Macasaet case)
that the planting or sowing be 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 Landowner Builder/planter/sower
the land, and the sower the proper rent. Good faith Good faith
Option 1: Purchase whatever has Receive indemnity for necessary,
been built, planted, or sown after useful and luxurious expenses

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paying indemnity which includes (depends on landowner) with right of Note: Rental period of sower is only
necessary, useful and luxurious retention over the land without until he gathers what he sowed. He
expenses (if he wishes to obligation to pay rent until full doesn’t have the remedy of removal.
appropriate the luxurious expenses) payment of indemnity (Sarmiento)
Good faith Bad Faith
Prohibited from offsetting or Remove useful improvement Option 1: To acquire whatever has Loses whatever has been built,
compensating the necessary and provided it does not cause any injury been built, planted or sown without planted or sown without indemnity
useful expense with the fruits (part of right of retention) paying indemnity except necessary and liable to pay damages
received by the BP in good faith expenses for preservation of land
(Nuguid case) If LO does not appropriate luxurious and luxurious expenses (should LO Entitled to reimbursement for
improvements, BPS can remove the want to acquire luxurious necessary expenses for preservation
same provided there is no injury to improvement) plus damages of land but no right to retention (and
the principal thing (land or building) also 443)

Right of retention only applies when NOT Entitled to reimbursement for

LO chooses to appropriate (but does useful expenses and cannot remove
not apply if property of public useful improvements even if removal
dominion) will not cause injury (MWSS case)
Option 2: To oblige the BP to buy the To purchase land at fair market
land or the S to pay the proper rent value at time of payment when value Not entitled to luxurious expenses
unless the value of the land is is not considerably more than that of except when LO wants to acquire
considerably more than that of the the building or trees (value of which will be the one at the
building or trees time LO enters into possession)
To pay rent until the purchase has
Legal implication of planter v sower: been made (Technogas case) Entitled to remove luxurious
Owner can’t compel sower to buy, improvements if it will not cause
only rent. If BP cannot pay purchase price of injury and LO does not want to
the land, LO can require BP to acquire them. If it will cause injury
remove whatever has been built, and LO doesn’t want to acquire, he
planted, or sown. gets it for free (Dean Del)
Option 2: To oblige BP to buy land or Obliged to pay for land or proper rent
If the value of the land is S to pay proper rent plus damages, and pay damages
considerably more than that of the regardless of valuation
building or trees, BP cannot be Option 3: To compel BPS to remove Obliged to remove or demolish work
compelled to buy the land. In such or demolish work done plus done at his expense and pay
case, BP will pay reasonable rent if damages damages
LO does not choose option 1. Bad Faith Good Faith
Acquire whatever has been built, Ball is in the court of the BPS.
If BPS cannot pay the rent, LO can planted or sown by paying indemnity
eject BPS from the land. plus damages BPS can remove whatever has been
built, planted or sown regardless of

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whether or not it will cause injury and 2. Improvement constructed on one’s own land subsequently sold (person
will be entitled to damages constructs a house on his own land and later sold land to another)
 But, the provision on indemnity in 448 may be applied by analogy
If LO acquires whatever has been where the owner-builder later lost ownership of the land by virtue of
built, planted or sown, BPS must be a court judgment, considering that the primary intent of 448 is to
indemnified the value thereof plus avoid a state of forced co-ownership especially where the parties in
damages the main agree that 448 and 546 are applicable and indemnity for
the improvements may be paid although they differ as to basis of
If LO does not acquire, BPS cannot the indemnity - whut?! (Pecson v CA)
insist on purchasing land 3. Builder is a belligerent occupant
4. Constructions not in the nature of buildings
5. Property of public domain
Bad Faith Bad Faith
Both in good faith 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 in the event that the one who made
Necessary expenses use of them has no property with which to pay.
 Made for the preservation of the thing, or This provision shall not apply if the owner makes use of the
 Those which seek to prevent the waste, deterioration, or loss of the right granted by Article 450. If the owner of the materials, plants or
thing seeds has been paid by the builder, planter or sower, the latter may
demand from the land-owner the value of the materials and labor.

Useful expenses Landowner Builder/Planter/Sower Owner of the Materials

 Expenses which add value to a thing or Good Faith Good Faith Good Faith
 Augment is income Option 1: To acquire To receive indemnity To receive indemnity
whatever has been from LO with right of from BPS who is
built, planted or sown retention over land until primarily liable for
When does good faith cease? provided there is full payment materials; if BPS is
 From the moment defects in the title are made known to the possessor payment of indemnity insolvent, to proceed
by extraneous evidence or by suit for recovery of the property by the (which includes value against LO who is
true owner of what has been built, subsidiarily liable with
planter or sown plus no right of retention
What happens if good faith ceases? (Rosales case) value of materials
 LO can acquire improvements built PRIOR to the notice to BPS (when used)
good faith ceased), and indemnify BPS of current market value at time Option 2: To oblige BP To buy land or to pay To receive indemnity
of payment to buy land or S to pay proper rent from BPS only (LO is
 LO entitled to rent from the time BPS good faith ceased rent unless value of not subsidiarily liable)
land is considerably with right of retention
When will these rules not apply? more than that of until full payment; or
1. When other provisions of law govern (agency, co-ownership, lease, building or trees
usufruct) To remove materials if

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there will be no injury what has been built, planted or sown and inferior quality of
on building or trees and planted or sown plus liable for damages materials
will have material lien damages
against BPS for Bad Faith Good Faith Good Faith
payment of materials To acquire what has To receive indemnity TO receive indemnity
Good Faith Good Faith Bad Faith been built, planted or from LO plus damages of materials principally
Same Whatever is the choice sown by paying from BPS and in case
of LO, the OM: indemnity plus liable to BPS is insolvent,
1. loses the materials in pay damages subsidiarily from LO
favor of the BPS and Bad Faith Good Faith Bad Faith
2. will have no right to Same Same No right to receive
receive indemnity from indemnity for value of
BPS nor LO materials from BPS nor
Good Faith Bad Faith Bad Faith LO (who ends up
Option 1: To acquire BPS loses what has (Since both BPS and owning buildings or
whatever has been been built, planted or OM are in bad faith, trees)
built, planted or sown sown plus liable for treat them both as if  If OM in bad faith, he doesn’t get anything (unless BPS in bad faith as
without paying damages but is entitled they are in good faith.) well)
indemnity except for to be indemnified for
necessary expenses necessary expenses Whatever is the choice Art 456 In the cases regulated in the preceding articles, good faith does
for preservation of land and luxurious expenses of the LO, OM has right not necessarily exclude negligence, which gives right to damages
and luxurious expenses (should LO want to to receive indemnity for under article 2176.
(should LO want to acquire luxurious value of materials from
acquire luxurious improvements) and has BPS only (LO has no Art 457 To the owners of the lands adjoining the banks of rivers belong
improvements) plus no right of removal subsidiary liability for the accretion which they gradually receive from the effects of the
damages even if removal will not value of materials current of the waters.
cause damage because OM is
considered in good Article treats of alluvion, a form of accession natural.
faith only insofar as
BPS is concerned) Alluvion is…
 Accretion which the banks of rivers gradually receive from the effects of
OM has no right to the current of the waters and
remove materials even  Which belong to the owners of lands adjoining the said banks
if there will be no injury
or damage  Riparian owners are owners of lands adjoining the banks of rivers.
Option 2: To oblige BP To buy the land or pay Get indemnification  Littoral owners are the owners of lands bordering the shore of the sea or
to buy the land or S to proper rent and liable from the BPS lake or other tidal waters
pay proper rent plus to pay damages to LO
damages Distinguished from accretion
Option 3: To oblige BP To demolish or remove Liable to pay damages  Alluvion is applied to the deposit of soil or to the soil itself
to demolish or remove what has been built, due to defects or

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 Accretion is the act or process by which a riparian land gradually and In case of diminution of area
imperceptively receives addition made by the water to which the land is  Registration does not protect the riparian owner against diminution of
contiguous the area of his land through gradual changes in the course of the
adjoining stream
Requisites  Accretions which the banks of rivers may gradually receive from the
i. Deposit or accumulation of soil or sediment must be gradual and effect of the current become the property of the owners of the banks
imperceptive In case of increase of area
ii. Accretion results from the effects or action of the current of waters of  Although alluvion is automatically owned by the riparian owner, it does
the river (exclusive work of nature) not automatically become registered land, just because the lot which
iii. Land where accretion takes place must be adjacent to the bank of a receives such accretion is covered by a Torrens title
river  So, alluvial deposit acquired by a riparian owner of registered land by
accretion may be subjected to acquisition through prescription by a third
Instances when alluvion DOES NOT take place person, by failure of such owner to register such accretion within the
1. Accretion because of sudden and forceful action like that of flooding prescribed period
2. Accretion caused by human intervention (would still be part of public
domain – Vda de Nazerno v CA) Art 458 The owners of estates adjoining ponds or lagoons do not
3. Accretion caused by action of Manila Bay (since Manila Bay is not a acquire the land left dry by the natural decrease of the waters, or lost
river, it’s part of the sea) that inundated by them in extraordinary floods.
4. Accretion on the bank of a lake (like Laguna de Bay) have been held to  Refers only to ponds and lagoons
belong to the owners of the lands to which they are added o No application when the estate adjoins a creek, stream, river or
lake
Elements of river and their ownership o For purposes of alluvion, lakes are of the same category of
A river is a compound concept consisting of three elements: creeks, streams and rivers
1. Running waters  Pond
2. The bed o a body of stagnant water without an outlet
3. The banks o larger than a puddle and smaller than a lake
 Lagoon
 Since a river is a compound concept, it should have only one nature – it o small lake, ordinarily of fresh water,
should either be totally public or completely private. And since rivers, o and not very deep, fed by floods
whether navigable or not, are of public dominion (Art 420), it is implicit o the hollow bed of which is bounded by elevations of land
that all the three component elements be the same nature also.  Lake
o Body of water formed in depressions of the earth
Reasons for alluvion o Ordinarily fresh water
1. Compensate the riparian owner for the danger of loss that he o Coming from rivers, brooks or springs
suffers because of the location of his land o Connected with the sea by them
2. Compensate him for the encumbrances and various kinds of o Hence, Laguna de Bay is a lake
easements to which his property is subject
3. Promote the interests of agriculture for the riparian owner it in the
best position to utilize the accretion 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
Accretions affecting lands registered under the Torrens system another estate, the owner of the land to which the segregated portion

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belonged retains the ownership of it, provided that he removes the o Continuous movement of a body of water, often horizontal, in a
same within two years. certain direction
 River
Avulsion is… o Natural surface stream of water of considerable volume
 Also known as force of river o Permanent or seasonal flow
 Defined as the accretion which takes place when the current of a river, o Emptying into an ocean, lake or other body of water
creek or torrent segregates from an estate on its bank a known portion  Creek
and transfers it to another estate o Small islet extending further into land
 In which case, the owner of the estate to which the segregated portion o Natural stream of water normally smaller than and ofter
belonged, retains the ownership thereof tributary to a river
 Also refers to the segregation or transfer itself of a known portion of land  Torrent
to another by the force of the current o Violent stream of water
o A flooded river or one suddenly raised by a heavy rain and
Alluvion Avulsion descending a steep incline
 Deposit of soil is gradual  Deposit is sudden or abrupt o Raging flood or rushing stream of water
 Deposit of soil belongs to the  The owner of the property from
owner of the property where the which a part was detached What if a portion of land is transferred, but not by a current of water, but by a
same was deposited retains the ownership thereof landslide?
 The soil cannot be identified  Detached portion can be  You can apply Art 459, by analogy.
identified
Remove it within two years
 Where there had been accretions to the land adjacent to the bank of a  The former owner preservers his ownership of the segregated portion
river, the riparian owner does not lose the ownership of such accretions provided he removes (not merely claims) the same within the period of 2
even if they are separated by avulsion from the land by the sudden years
change of the course of the river  It would seem that his failure to do so would have the effect of
automatically transferring ownership over it to the owner of the other
Requisites estate
i. Segregation and transfer must be caused by the current of a river,  Law doesn’t make a distinction between private land and land of the
creek or torrent public domain
ii. Segregation and transfer must be sudden or abrupt  Why two years?
iii. Portion of land transported must be known or identifiable o Segregated portion is usually very small and it is thus useless
to the original owner
 Even if the detached portion be placed on top of another land instead of o Similar to uprooted trees (but there, 6 months)
being adjoined to it, Art 459 still applies as long as it can be identified as o If the owner of the separated portion retains his ownership
coming form the estate from which it was detached without any qualification, he would have a right to enter the
 If only soil is removed by water and spread over another’s land such other estate at any time, which wouldn’t be convenient to the
that no known portion can be said to exist which can be removed, there other estate
is no avulsion o After a long period, the detached potion may become
 Current permanently attached to the new land so it’ll be hard to remove

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Art 460 Trees uprooted and carried away by the current of the waters formal act on his part. (Remember that rivers are property of public
belong to the owner of the land upon which they may be cast, if the dominion)
owners do not claim them within 6 months. If such owners claim them, o The change in the course of the river does not ipso facto result
they shall pay the expenses incurred in gathering them or putting them in the abandonment of the river but must be the reason for its
in a safe place. abandonment, in other words, the river is abandoned because
of or through the natural change of the water
 Applies only to uprooted trees  The owners of land adjoining the old bed are given the preferential right
 If a known portion of land with trees standing thereon is carried away by to acquire the old bed by paying the value thereof
the current to another land, Art 459 governs o The indemnification shall not exceed the value of the area
 The original owner claiming the trees is liable to pay the expenses occupied by the new bed (in case of disagreement, bring the
incurred by the owner of the land upon which they have been cast in case to court.)
gathering them or putting them in a safe place
 Claim must be done in 6 months Requisites
o If not, the trees will belong to the owner of the land where the i. There must be a natural change in the course of the waters of the
trees have been cast to river
o Six months is a condition precedent and not a prescription ii. Change must be abrupt or sudden
period
o After a claim is made within 6 months an action may be NB: Law speaks of change of river course. If a river simply dries up or
brought within the period provided by law for prescription of disappears, the bed left dry will belong to public dominion (Art 502)
movables

NB: For trees, you need only CLAIM within the period. For land (Art 459), Art 462 Whenever a river, changing its course by natural causes, opens
you have to REMOVE them within 2 years a new bed through a private estate, this bed shall become of public
dominion.

Art 461 River beds which are abandoned through the natural change in NB: This article talks of the new riverbed. Art 461 talked about the old
the course of the waters ipso facto belong to the owners whose lands riverbed.
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  The bed of a public river or stream is of public ownership (Art 502)
right to acquire the same by paying the value thereof, which value shall  If the river changes its course and opens a new bed, this bed becomes
not exceed the value of the area occupied by the new bed. of public dominion even if its on private property
 Just as the old had bed had been of public dominion before the
River beds abandoned through natural change in the course of waters abandonment, the new riverbed shall likewise be of public dominion
 They belong to owners occupied by the new course of the river  No distinction whether a river is navigable or floatable or not
o In proportion to the area lost (if only one owner lost a portion of
his land, the entire old bed should belong to him. If more than Art 463 Whenever a current of a river divides itself into branches,
two, then in proportion to the area lost) leaving a piece of land or part thereof isolated, the owner of the land
 Abandoned? The words may be construed to mean that where there is retains his ownership. He also retains it if a portion of land is separated
abandonment by the government over the old bed, the owner of the from the estate by the current.
invaded land automatically acquires ownership of the same without any

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

2. If it is formed in non-navigable and non-floatable rivers: Adjunction is…

a. It belongs to the nearest riparian owner or owner of the margin  The union of two movable things belonging to different owners
or bank nearest to it as he is considered in the best position to  In such a way that they form a single object
cultivate and develop the island (in other words, sa  But one of the component things preserves its value
pinakamalapit na may ari ng lupa)
b. If it is in the middle of the river, the island is divided Characteristics of adjunction
longtitudinally in halves In order that adjunction may take place, it is necessary that:
c. If the island formed is longer than the property of the riparian 1. There are two movables belonging to different owners
owner, the latter is deemed ipso jure to be the owner of that 2. They are united in such a way that they form a single object; and

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

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Good Faith Good Faith If by the one who caused the mixture or confusion acted in
Acquires the accessory, Loses the accessory but has a right bad faith, he shall lose the thing belonging to him thus mixed or
indemnifying the owner of the value to indemnity for the value of the confused, besides being obliged to pay indemnity for the damages
thereof accessory caused to the owner of the thing with which his own was mixed

Except: When value of accessory is Has a right to demand separation Definition of mixture
much more precious than the even if it causes injury to the  Takes place when two or more things belonging to different owners are
principal thing (469) principal thing (469) mixed or combined
 With the respective identities of the component parts destroyed or lost
Except: When still separable, may May demand separation (469(  Two kinds
demand separation (no adjunction o Commixtion (for solids)
anyway) o Confusion (for liquids)
Good faith Bad faith
Acquires the accessory and has a Loses the thing and has liability for Rules governing mixture (co-ownership)
right to indemnity for damages he damages 1. If the mixture by will of owners, their rights shall be governed by their
may have suffered stipulations. In the absence of any stipulation, each owner acquires a
Bad faith Good faith right or interest in the mixture in proportion to the value of his materials
Pays for the accessory plus Option 1: Demand the owner of the as in co-ownership.
damages principal to pay for the value of the MIXTURE
accessory plus damages Owner who caused mixture Owner of the thing mixed into
Good faith or by chance Good faith or by chance
Separate thing even if it is destroyed Option 2: Demand separation even if
plus pay damages it causes the destruction of the Each owner acquires a right Each owner acquires a right
principal thing plus damages proportional to the part belonging to proportional to the part belonging to
Bad Faith Bad Faith him, bearing in mind the value of the him, bearing in mind the value of the
As if both are in good faith things mixed or confused things mixed or confused
Bad faith Good faith
Art 471 Whenever the owner of the material employed without his Loses the thing mixed or confused Acquires the thing mixed plus
consent has a right to indemnity, he may demand that this consist in plus liable to pay damages entitled to damages
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. Art 474 One who in good faith employs the material of another in whole
Art 472 if by the will of their owners two things of the same or different or in part in order to make thing of a different kind, shall appropriate
kinds are mixed, or if the mixture occurs by chance, and in the latter the thing thus transformed as his own, indemnifying the owner of the
case the things are not separable without injury, each owner shall material for its value.
acquire a right proportional to the part belonging to him, bearing in If the material is more precious than the transformed thing or
mind the value of things mixed or confused. is of more value, its owner, may, at his option, appropriate the new
Art 473 if by the will of only one owner, but in good faith, two things of thing to himself, after first paying indemnity for the value of the thing,
the same or different kinds are mixed or confused, the rights of the or demand indemnity for the material.
owners shall be determined by the provisions of the preceding article. 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

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without paying anything to the maker, or to demand of the latter that he considerably higher than the
indemnify him for the value of the material and the damages he may material. The owner of the material
have suffered. However, the owner of the material cannot appropriate cannot appropriate the work.
the work in case the value of the latter, for artistic or scientific reasons,
is considerably more than that of the material. Option 2: Demand indemnity for Must pay indemnity and damages.
material plus damages.
Definition of specification
 Takes place whenever the work of a person is done on the material of
another Art 475 In the preceding articles, sentimental value shall be duly
 Such material, in a consequence of the work itself, undergoing a appreciated.
transformation.
 Imparting of a new form to the material belong to another, or making of Adjunction, mixture and specification distinguished
the material of another into a different kind Adjunction Mixture Specification
o Flour made into bread, grapes into wine, clay into bricks, love At least two things At least two things May be only one ting
into hate (joke. Putek, ang boring ng Property. If you’ve made it whose form is changed
this far, good for you!) Component parts retain Things mixed may or Component parts retain
or preserve their nature may not retain their or preserve their nature
SPECIFICATION (accessory follows principal) respective original
Owner of material Builder nature
Good faith Good faith Accessory follows Co-ownership results Accessory follows
Right to indemnification for the value Shall appropriate the thing thus principal principal
of the material. transformed as his own,
indemnifying the owner of the
material for its value. CHAPTER THREE: QUIETING OF TITLE

Except: Material more precious than ART 476 Whenever there is a cloud on title to real property or any
transformed thing. interest therein, by reason of any instrument, record, claim,
encumbrance or proceeding which is apparently valid or effective but it
Option 1: Appropriate the new thing To be indemnified. is in truth and in fact invalid, ineffective, voidable or unenforceable,
to himself, indemnifying the builder and may be prejudicial to said title, an action may be brought to
for his work. remove such clod or to quiet the title.
An action may also be brought to prevent a cloud from being
Option 2: Demand indemnity for the Appropriate the same after indemnity cast upon title to real property or any interest therein.
material. for material.
Good faith Bad faith Title to real property refers to that upon which ownership is based.
Option 1: Appropriate the work to Loses his work. No right to Plaintiff in action for quiet title dies, should it be dismissed? No. It’s a quasi
himself without paying indemnity. indemnity. in rem suit.
(Damages also?) Defendant’s defenses: prescription, lack of jurisdiction of court

Except: When for artistic or scientific Pay for the materials and damages. Cloud on title
reasons, the thing has a value

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 Semblance of title, either legal or equitable, or a claim or a right in real  Task of court is to determine the respective rights of the parties so that
property, appearing in some legal from, but which is in fact, invalid or the complainant and those claiming under him may forever free from
which would be inequitable to enforce any danger of hostile claim (Rumarate case)
 Requisites  Affords prompt and adequate method to remove cloud on title
i. Instrument, record, claim, encumbrance or proceeding which is  Promotes improvement of property
apparently valid or effective,
ii. Such instrument is in truth and in fact, invalid, ineffective, To what kind of property does this action apply?
voidable or unenforceable, or has been extinguished or  Real property, which may refer to either the title or only an interest
terminated, or has been barred by extinctive prescription therein (usufruct, servitude, lease record, etc)
iii. Such instrument may be prejudicial to said title  Not to personal property
o But, they may be applied to personalty under exceptional
Action to quiet title circumstances with respect to certain types of property which
 Requisites:  partake of the nature of real property (vessels, motor
i. Plaintiff or complainant has a legal or an equitable title to, or vehicles, certificates of stocks), or
interest in the real property subject of the action  treated to some extent as realty because of
ii. The deed, claim or proceeding claimed to be casting cloud on registration requirements for ownership or
his title must be shown to be, in fact, invalid or inoperative transactions affecting them (chattel mortgage)
despite its prima facie appearance of validity or legal efficacy
Prescriptibility of action
Action to quiet title Action to remove a cloud on title 1. If plaintiff in possession, it does not prescribe. An action to quiet title
 Purpose to put an end to  Removal of a possible brought by a person who is in possession of the property is
troublesome litigation in respect foundation for a future hostile imprescriptible.
to the property involved claim 2. If plaintiff not in possession, he must invoke his remedy within the
 Remedial action involving a  Preventive action to prevent a proper prescriptive period. Ten years if in good faith, 30 years if in bad
present adverse claim future cloud on the title faith.
 1st paragraph of Art 476  2nd paragraph of Art 476
Art 477 The plaintiff must have legal or equitable title to, or interest in
 An action to quiet title includes an action to remove a cloud of title. the real property which is the subject matter of the action. He need not
be in possession of said property.
Nature of action
 Quasi in rem Title and possession of the plaintiff
 Judgment is conclusive only between the parties  Plaintiff must have a legal or equitable title or an interest in the real
 The res, the subject-matter of the controversy, is within the court’s property which is the subject matter of the action
jurisdiction, and it is because of that circumstance that the court is able o Legal title may consist in full ownership or in naked ownership
to adjudicate o If plaintiff has beneficial interest in the property (such as a
 Not essential that the court acquire jurisdiction of the person of the beneficiary in a trust), he has beneficial title
defendant o Interest in property is any interest short of ownership, like the
interest of a mortgagee or a usufructuary
Benefits from allowing actions  If plaintiff is not in possession, he may also bring one of the three
actions mentioned in addition to the action to quiet title

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 In order to afford complete relief to the parties in action to quiet title, the
court, without thereby converting the action from quieting of title into CHAPTER FOUR: RUINOUS BUILDINGS AN TREES IN
accion publiciana, may determine,: DANGER OF FALLING
o Incidentally the ownership,
o The stats of the legal title to the property
o Right to the possession thereof 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
Art 478 There may also be an action to quiet title or remove a cloud execute the necessary work in order to prevent it from falling.
therefrom when the contract, instrument or other obligation has been If the proprietor does not comply with this obligation, the
extinguished or has terminated, or has been barred by extinctive administrative authorities may order the demolition of the structure at
prescription. the expense of the owner, or take measures to insure public safety.

Two cases when action allowed  If a building, wall, column or other construction is in danger of falling, the
An action to quiet title may be maintained: owner has the duty to either:
1. When the contract, instrument, or other obligation has been o Demolish it, or
extinguished or terminated (right of the defendant has been o Repair it.
extinguished by the happening of a condition subsequent)  In case he doesn’t, the administrative authorities, in the exercise of
2. When the contract, instrument or other obligation has been barred by police power, may order the demolition of the structure, or take
extinctive prescription (as where plaintiff has possess in bad faith the measures to insure public safety
property publicly, adversely and uninterruptedly for 30 years)  Recognition of the limitation of the owner’s rights in the use and
enjoyment of his property
Art 479 The plaintiff must return to the defendant all benefits he may o Sic utere tuo ut alienum non laedas. – Use your property as
have received from the latter, or reimburse him for expenses that may not to injure others
have redounded to the plaintiff’s benefit.
Art 483 Whenever a large tree threatens to fall in such a way as to
Obligation of plaintiff to return or reimburse cause damage to the land or tenement of another or to travelers over a
 The purpose of the action to quiet title is solely public or private road, the owner of the tree shall be obliged to fell and
o to remove the cloud on the plaintiff’s title or remove it; and should he not do so, it shall be done at his expense by
o to prevent a cloud from being cast upon his title, and not to order of the administrative authorities.
obtain any other benefit
 Plaintiff is bound to return to the defendant all the benefits he may have  Owner of the tree may be compelled to fell and remove a threatening
received form the latter or reimburse him for the expenses incurred on tree, and should he fail to do so, the work shall be ordered done at his
the property which has redounded to the plaintiff’s benefit (less of expenses by the administrative authorities
course, any damage which he suffered by reason of the defendant)
TITLE III – CO-OWNERSHIP
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 484 There is co-ownership whenever the ownership of an
undivided thing or right belongs to different person.
Art 481 The procedure for quieting of title or the removal of a cloud In default of contracts, or of special provisions, co-ownership
therefrom shall be governed by such rules of court as the Supreme shall be governed by the provisions of this Title.
Court shall promulgate.

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Mickey Ingles
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What is co-ownership?  Example: When northern half of land belongs to buyer, southern
 As a manifestation of ownership, it is that form of ownership which half belongs to seller
exists whenever an undivided thing or right belongs to different persons
 As a right, it has been defined as the right of common dominion which Sources of co-ownership
two or more persons have in a spiritual or ideal part of a thing which is 1. Contract (two persons share in paying purchase price)
not materially or physically divided 2. Law (easement in party walls, absolute community of property)
3. Succession (in the case of heirs of undivided property)
Requisites 4. Testamentary disposition or donation inter vivos (testator prohibits
i. Plurality of owners partition of the property)
ii. Object of ownership must be an undivided thing or right 5. Fortuitous event or by chance (commixtion or confusion by accident)
iii. Each co-owners’ right must be limited only to his ideal share of the 6. Occupancy (two folks catch a wild animal in the jungles of Borneo)
physical whole
Co-ownership Joint Ownership
Characteristics of co-ownership  Each co-owner, together with  No abstract share ownership by
1. Two or more co-owners the others, is the owner of the the co-owners, the right of the
2. Single object which is not materially or physically divided, over which whole undivided thing or right joint tenants being inseparable
and his ideals share of the whole, each co-owner exercises ownership, but at the same time of his own
together with the co-owners ideal part thereof
3. No mutual representation by the co-owners  Can dispose of his share  Not permitted to dispose of his
4. Exists for the common enjoyment of the co-owners without the consent of the other share or interest in the property
5. No distinct legal personality without the consent of others
6. Governed first by the contract of parties  Survivors are subrogated to the  If joint tenant dies, his
a. otherwise, by special legal provisions rights of the deceased ownership dies with him
b. in default of such provisions, by this Title immediately upon the death of
the latter
Ownership of a co-owner  Disability of a co-owner does  Disability of a joint tenant inures
 Ownership of whole and over his aliquot share not inure to the benefit of the to the benefit of the others for
 Each owner is at the same time absolute owner of his own ideal but others purposes of prescription
definite share which determines his rights and obligations in the co-
ownership Co-ownership Partnership
 Every co-owner, jointly with the other co-owners, is the owner  May be created without  Can be created only by a
i. of the whole, and over the whole he exercises the right of formalities of a contract contract, express or implied
dominion, and  No juridical or legal personality  Distinct juridical personality
ii. he is at the same time the owner of an aliquot portion which is  Purpose is collective enjoyment  Purpose to obtain profits
truly abstract because until division is effected such portion is of the thing
not concretely determined
 Co-owner can dispose of his  Unless authorized, a partner
share without the consent of the cannot dispose and substitute
Disputed portions owned already concretely determined
others, transferee automatically another partner in his place
 No co-ownership when the different portions owned by different people becoming a co-owner  Partner can generally bind the
are already concretely determined and separately identifiable, even if
 No mutual representation partnership
not yet technically described

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 Distribution of profits must be  Distribution of profits is subject purpose of the co-ownership may be changed by agreement, express
proportional to the respective to stipulation of the partners or implied.
interests of the co-owners
 Not dissolved by death  Dissolved by death or incapacity Limitations on co-owner’s right to use
 Agreement to keep the thing 1. Must be n accordance with the purpose for which the co-ownership is
undivided for a period of more  There may be agreement as to intended
than ten years is void (although any definite term without limit  Resort to the agreement
it may be extended by a new set by law  In absence thereof, it is to be understood that the thing is
agreement) intended for that use for which it is ordinarily adapted
according to its nature
Co-ownership Easement  Co-owners are free to change the purpose of the co-ownership
 Each co-owner has a right of  Precisely a limitation on the right by agreement, express or implied
dominion over the whole of dominion o However, mere tolerance does not change purpose
property and over his undivided 2. Must not injure the interest of the co-ownership
share 3. Must not prevent the co-owners from using it according to their rights
 Right of ownership rests solely  Right of dominion is in favor of
on each and every co-owner one or more persons and over Art 487 Anyone of the co-owners may bring an action in ejectment.
over a single object two or more different things
Action in ejectment
Case doctrines  Any co-owner can bring, in behalf of himself, and the other co-owners
 The property regime of parties to a bigamous marriage is governed by an action in ejectment affecting the co-ownership
Art 148 of the Family Code which provides that all properties acquired o Forcible entry, unlawful detainer, recovery of possession,
by the parties out of their actual joint contribution of money, property, or recovery of ownership
industry shall be governed by the rules on co-ownership. If there is no  May be brought against strangers and even against a co-owner
contribution from either or both of the spouses, there can be no co- o Only purpose of an action against a co-owner who takes
ownership. (Acre v Yuttikki - aw yeah, what a name.) exclusive possession and asserts exclusive ownership of the
property is to obtain recognition of the co-ownership
Art 485 The share of the co-owners, in the benefits as well as in the  An adverse decision in the action is not necessarily res judicata with
charges, shall be proportional to their respective interests. Any respect to the other co-owners not being parties to the action
stipulation in a contract to the contrary shall be void. o Exception: where it appears that the action was instituted in
The portions belonging to the co-owners in the co-ownership their behalf with their express or implied consent, or
shall be presumed equal, unless the contrary is proved. o The rights in the co-ownership are derived from the title of their
predecessors-in-interest found by the court to be invalid or
Presumption: Proportional to their respective interests inexistent
Does not apply to co-ownership based on will or by donation.
Art 488 Each co-owner shall have a right to compel the other co-
Art 486 Each co-owner may use the thing owned in common, provided owners to contribute to the expenses of preservation of the thing or
he does so in accordance with the purpose for which it is intended and right owned in common and to the taxes. Anyone of the latter may
in such a way as not to injure the interest of the co-ownership or exempt himself from this obligation by renouncing so much of his
prevent the other co-owners from using it according to their rights. The undivided interest as may be equivalent to his share of the expenses

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Mickey Ingles
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PROPERTY NOTES

and taxes. No such waiver shall be made if it is prejudicial to the co- o Co-owner must, if practicable, first notify the co-owners of the
ownership. necessity for the repairs
 If impracticable or where the repairs are very urgent
Obligation to contribute to expenses of preservation and to taxes and the other co-owners are in remote places and
 The expenses of preservation of the thing or right owned in common cannot be reached, the notice may be dispensed with
and the amount of taxes due thereon should be borne by all o The lack of notice, even if practicable, would not exempt the
 A co-owner who advanced them has a right to demand reimbursement other co-owners from the obligation to contribute to the
from the others in proportion to their respective interests in the co- expenses. But the co-owner who advanced them has the
ownership burden of proving that they were properly incurred.
 Refers only to necessary expenses
 Useful expenses are not covered, unless such were incurred with the Art 490 Whenever the different stories of a house belong to different
consent of the others owners, if the titles of ownership do not specify the terms under which
 Expenses for pure luxury are not also refundable, not being for they should contribute to the necessary expenses and there exists no
preservation agreement on the subject, the following rules:
1. the main and party walls, the roofs and the other things used
Renunciation by a co-owner of his share in the co-ownership in common, shall be preserved at the expense of all the
 Renunciation need not be total owners in proportion to the value of the story belonging to
 The co-owner need only renounce or give up in favor of the other co- each;
2. Each owner shall bear the cost of maintaining the floor of his
owners so much of this undivided share as may be equivalent to his
share of expenses and taxes story; the floor of the entrance, front door, common yard and
sanitary works common to all shall be maintained at the
 Example?
expense of all the owners pro rata;
3. The stairs from the entrance to the first story shall be
Art 489 Repairs for preservation may be made at the will of one of one
maintained at the expense of all the owners pro rata, with the
of the co-owners, but he must, if practicable, first notify his co-owners
exception of the owner of the ground floor; the stairs from the
of the necessity for such repairs. Expenses to improve or embellish the
first to the second story shall be preserved at the expense of
thing shall be decided upon by a majority as determined in Article 492.
all, except the owner of the ground floor and the owner of the
first story; and so on successively.
Necessity for agreement on expenses
 Acts or decisions affecting the ting owned in common may be grouped
 Applies if the titles of ownership do not specify the terms thereof or
into
there exists no agreement on the subject
o Acts of preservation (Art 489)
o Acts of administration (Art 492)
Art 491 None of the co-owners shall without the consent of the others,
o Acts of alteration (Art 491)
make alterations in the thing owned in common, even though benefits
 Repairs for preservation
for all would result therefrom. However, if the withholding of the
o A co-owner has the right to compel the other co-owners to
consent by one or more ot the co-owners is clearly prejudicial to the
contribute to the expenses of preservation, maintenance or
common interest, the courts may afford adequate relief.
necessary repairs of the thing or right owned in common, and
to the taxes, even if incurred without the knowledge of other
Necessity of consent of other co-owners for alterations
co-owners or prior notice to them, in view of the nature of
 Alteration contemplates a change made by a co-owner in the thing
expenses
owned in common which involves:

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o Change of the thing from the state or essence in which the  They contemplate acts or decisions for the common benefit of all the co-
others believe it should remain; or owners and not for the benefit of only one or some of them
o Withdrawal of the thing from the use to which they wish it to be  While alteration is more or less permanent, acts of administration have
intended; or transitory effects and have for their purpose the preservation,
o Any other transformation which prejudices the condition or preparation and better enjoyment of the thing and which do not affect its
substance of the thing or its enjoyment by the others. essence, nature or substance
 Alteration is not limited to material or physical changes  NB: Majority rule prevails.
o Includes any act of ownership by which a real right or o The majority consists of co-owners who represent the
encumbrance is imposed on the common property, such as controlling interest in the object of the co-ownership.
servitude, registered lease, lease of real property for more than o The majority likewise decides the expenses to improve or
one year, mortgage, pledge embellish the common property. Notice must be given to the
 NB: Unanimous consent of all the co-owners, not a mere majority, is minority unless it is impracticable to do so.
necessary even if the alteration would prove beneficial because  If there is no majority or the resolution of the majority is seriously
alteration is an act of ownership and not of mere administration prejudicial to the interests of the other co-owners, the court, at the
o Consent may be expressed or implied instance of an interested party, may take such measures as it may
 Liability for alteration: the co-owner who makes such alteration without deem proper
the express or implied consent of the other co-owners acts in bad faith o Examples of prejudicial acts:
because he does so as if he were the sole owner  Resolution calls for a substantial change of the thing
o He loses what he has spent  Authorizes leases, loans, and other contracts without
o Obliged to demolish the improvements done, and the necessary security
o Liable to pay for loses and damages the community property or  Upholds the continued employment of an
the other co-owners may have suffered administrator who is guilt of fraud or negligence in his
management
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 Art 493 Each co-owner shall have the full ownership of his part and of
binding. the fruits and benefits pertaining thereto, and he may therefore
There shall be no majority unless the resolution is approved alienate, assign or mortgage it, and even substitute another person in
by the co-owners who represent the controlling interest in the object of its enjoyment, except when personal rights are involved. But the effect
the co-ownership. of the alienation or the mortgage, with respect to the co-owners shall
Should there be no majority, or should the resolution of the be limited to the portion which may be allotted to him in the division
majority be seriously prejudicial to those interested in the property upon the termination of the co-ownership.
owned in common, the court, at the instance of an interested party,
shall order such measures as it may deem proper, including the Rights of each co-owner
appointment of an administrator. 1. Full ownership of his part, that is, his undivided interest or share in the
Whenever a part of the thing belongs exclusively to one of the common property
co-owners, and the remainder is owned in common, the preceding 2. Full ownership of the fruits and benefits pertaining thereto
provisions shall apply only to the part owned in common. 3. May alienate, assign or mortgage his ideal interest or share
independently of the other co-owners
Rules for acts of administration and better enjoyment 4. May even substitute another person in the enjoyment of his part, except
 Acts of management of the common property when personal rights are involved

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Mickey Ingles
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 A co-owner is given the legal right of redemption in case the shares of o The sale affects only his proportionate or abstract share in the
all the other co-owners or any of them are sold to a third person (not a property owned in common, subject to the results of the
co-owner)1 partition, but not those of the other co-owners who did not
o Harry, Ron and Neville were co-owners of a parcel of land. consent to the sale
Harry sold his share to Draco. Ron and Neville may redeem o There may be a valid sale of a definite portion of the property
the share from Angel. If only Ron exercises the right, he shall co-owned even before actual partition where the rule of
pay only a reasonable price. Subject to reimbursement from estoppel apples (co-owners didn’t object when seller pointed a
Neville, as it is a preservation expense. portion out to a potential buyer)
o If they both want to exercise the right, they may only do so in  Whole property
proportion to the share they may respectively have in the thing o Even if a co-owner sells the whole property as his own, or
owned in common. without the consent of ther other co-owners, the sale is valid
only insofar as his ideal quota is concerned unless the sale is
 A co-owner may exempt himself from the obligation to contribute to the authorized by the other co-owners
expenses of preservation of the thing or right owned in common and to o A sale of the entire property by one co-owner will only transfer
the taxes by renouncing so much of his interest as may be equivalent to the rights of said co-owner to the buyer, thereby making the
his share of the expenses and taxes buyer a co-owner of the property
o Recourse of co-owners when their consent was not secured:
Sale or mortgage of common property action for partition
 Undivided portion
o A co-owner is free to dispose of his pro indiviso share and of Where personal rights are involved
the fruits and other benefits arising from that share but the  A co-owner may substitute another in the enjoyment of his undivided
transferee does not acquire an specific or determinate physical interest in the co-ownership except when personal rights are involved
portion of the whole, his right being limited to the portion which  Personal right – a right which cannot be transferred because it affects
may be allotted to him upon the partition of the property the personal relations of the co-owners with one another
 Definite portion
o The fact that a deed of sale appears to convey a definite or Art 494 No co-owner shall be obliged to remain in the co-ownership.
segregated portion of the property under co-ownership that is Each co-owner may demand at any time the partition of the thing
still undivided does not per se render the sale a nullity owned in common, insofar as his share is concerned.
o The sale is valid subject only to the condition that the interests Nevertheless, an agreement to keep the thing undivided for a
acquired by the vendee must be limited to the part that may be certain period of time, not exceeding ten years, shall be valid. This
assigned to the co-owner-vendor in the division upon the terms may be extended by a new agreement.
termination of the co-ownership 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.
1 No prescription shall run in favor of co-owner or co-heir
Art 1620 A co-owner of a thing may exercise the right of redemption in case the
shares of all the other co-owners or of any of them, are sold to a third person. If the against his co-owners or co-heirs so long as he expressly or impliedly
price of the alienation is grossly excessive, the redepmtioner shall pay only a recognizes the co-ownership.
reasonable one.
Should two or more co-owners desire to exercise the right of redemption they may Termination of co-ownership
only do so in proportion to the share they may respectively have in the thing owned in  Co-ownership may be terminated in different ways, as follows
common.

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Mickey Ingles
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1. Consolidation or merger in only one of the co-owners of all the 4. When partition would render the thing unserviceable for the use for
interests of the others; which it is intended
2. Destruction or loss of the property co-owned 5. When another co-owner has possessed the property as exclusive owner
3. Acquisitive prescription in favor of a third person, or a co-owner and for a period sufficient to acquire it by prescription
who repudiates the co-ownership
4. Partition, judicial or extrajudicial Prescription in favor of or against a co-owner
5. Termination of the period agreed upon or imposed by the donor or  Prescription does not run in favor or against a co-owner or co-heir
testator, or of the period allowed by law  Co-ownership is a form of a trust, with each owner being a trustee for
6. Sale by the co-owners of the thing to a third person and the each other.
distribution of its proceeds among them  Where, however, a co-owner or co-heir repudiates the co-ownership,
prescription begins to run from the time of repudiation (requisites)
Right of a co-owner to demand partition i. He had performed unequivocal acts of repudiation of the co-
 Partition is the division between two or more persons of real or personal ownership amounting to an ouster of the beneficiary or the
property which they own in common so that each may enjoy and other co-owners
possess his sole estate to the exclusion of and without interference from ii. Such positive acts of repudiation have been made known to
the others the beneficiary or other co-owners
 Co-owner ahs the right to demand at any time partition of the thing iii. Evidence thereon is clear, complete and conclusive in order to
owner in common, insofar as his share is concerned for “no co-owner establish prescription without any shadow of doubt; and
shall be obliged to remain in the co-ownership” iv. Possession is open, continuous, exclusive and notorious
 Action to demand partition is imprescriptible or cannot be barred by
laches, absent a clear repudiation of the co-ownership by a co-owner Examples of specific acts which are considered as acts of repudiation
clearly communicated to the other co-owners  Filing by a trustee of an action in court against the trustor to quiet title to
 The actual possession and enjoyment of several portions of the property
common property by some of the co-owners does not of itself provide  Action for reconveyance of land based on implied or constructive trust
proof that the property has already been partitioned and co-ownership  Cancellation of title in the name of the apparent beneficiaries and
terminated. application for a new certificate of title in his (administrator/trustee)
o A co-owner cannot, without the conformity of the other co- name
owners or judicial decree of partition, adjudicate to himself in
fee simple a determinate portion of the property owned in Art 495 Notwithstanding the provisions of the preceding article, the co-
common as his share theirein, to the exclusion of the others owners cannot demand a physical division of the thing owned in
common, when to do so would render it unserviceable for the use for
Exceptions to the right to demand partition which it is intended. But the co-ownership may be terminated in
1. When the co-owners have agreed to keep the thing undivided for a accordance with Article 498.
certain period of time, not exceeding ten years
o Period stipulated exceeds ten years would be void insofar as Art 496 Partition may be made by agreement between the parties or by
the excess is concerned judicial proceedings. Partition shall be governed by the Rules of Court
2. When the partition is prohibited by donor or testator for a certain period insofar as they are consistent with this Code.
not exceeding twenty years
3. When the partition is prohibited by law Purpose and effect of partition
o Conjugal property, etc  Partition has for its purpose the separation, division and assignment of
the thing held in common among those to whom it may belong.

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Mickey Ingles
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 After partition, the portion belonging to each co-owner has been

identified and localized, so that co-ownership, in its real sense, no  The law does not expressly require that previous notice of the proposed
longer exists partition be given to the creditors and assignees. But as they are
granted the right to participate in the partition, they have also the right to
Action for partition be notified thereof. In the absence of notice, the partition will not be
 Two phases: binding on them.
o Determine whether there is indeed a co-ownership  Rules:
o Determine how the property is to be divided o If no notice is given, the creditors or assignees may question
 The issue of ownership or co-ownership must first be solved in order to the partition already made;
effect a partition of properties o If notice is given, it is their duty to appear and make known
 An action for partition will not lie if the claimant has no rightful interest their position; they may concur with the proposed partition or
over the subject property object to it; and
o They cannot impugn a partition already executed or
How partition effected implemented unless:
 May be effected extrajudicially pursuant to an agreement  There has been fraud, whether or not notice was
 May be effected judicially by judicial proceedings under Rule 69 of the given, and whether or not formal opposition was
Rules of Court presented, or
o An action for partition is in the nature of an action quasi in rem  The partition was made notwithstanding that formal
opposition was presented to prevent it, even if there
Application of the Statute of Frauds has been no fraud.
 The Statute of Frauds does not apply to partition because it is not  Debtor or assignor has always the right to show the validity of the
legally deemed a conveyance or a sale of property resulting in change partition.
of ownership but simply a segregation and designation of that part of the
property which belongs to each of the co-owners Art 498 Whenever the thing is essentially indivisible and the co-owners
 Oral partition is valid and enforceable where no third persons are cannot agree that it be allotted to one of them who shall indemnify the
involved others, it shall be sold and its proceeds distributed.
o In cases of oral partition, the actual possession of one of the
property is evidence that there was indeed oral partition.  Although the thing cannot be physically divided, the co-ownership may
o In an oral partition under which the parties went into nevertheless be terminated in accordance with the above provision
possession, exercises acts of ownership, or otherwise partly pursuant to the rule in Art 494 by adjudication of the thing to one of the
performed the partition agreement, equity will confirm such co-owners who shall indemnify the others or by its sale with the
partition and in a proper case, decree title in accordance with proceeds thereof divided among the co-owners
the possession in severalty  Sale may be private, public, and purchases may be a co-owner or a
third person
Art 497 The creditors or assignees of the co-owners may take part in  Art 498 applies when:
the division of the thing owned in common and object to its being o Thing indivisible
effected without their concurrence. But they cannot impugn any o Co-owners can’t agree that it be allotted to one of them, who
partition already executed, unless there has been fraud, or in case it shall indemnify the others
was made notwithstanding a formal opposition presented to prevent it, o So, ibenta na lang!
without prejudice to the right of the debtor or assignor to maintain its
validity.

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Art 499 The partition of a thing owned in common shall not prejudice  “Project” means the entire parcel of real property divided or to be
third persons who shall retain the rights of mortgage, servitude, or any divided in condominiums, including all structures thereon
other real rights belonging to them before the division was made.  “Common areas” (meaning the entire project excepting all units
Personal rights pertaining to third persons against the co-ownership separately granted or held or reserved) are owned by the condominium
shall also remain in force, notwithstanding the partition. corporation
 “Private units” (meaning the a part of the condo project intended for any
 Third persons, refer to all those with real rights, such as mortgage and type of independent use or ownership) are owned by the unit owners
servitude over the thing owned in common or with personal rights o Unit owners are shareholders in the condominium
against the co-owners who had no participation whatever in the partition o If you sell your unit to someone else, you lose your status as a
shareholder in the condominium corporation
Art 500 Upon partition, there shall be a mutual accounting for benefits  Condominium Certificate of Title is what’s given (as opposed to a OCT
received and reimbursements for expenses made. Likewise, each co- or TCT)
owner shall pay for damages caused by reason of his negligence or
fraud. TITLE V – POSSESSION
Art 501 Every co-owner shall, after partition, be liable for defects of title CHAPTER ONE
and quality of the portion assigned to each of the other co-owners. POSSESSION AND THE KINDS THEREOF

What are the obligations of the co-owners upon partition? (ARIW) Art 523 Possession is the holding of a thing or the enjoyment of a right.
1. Mutual accounting for the benefits received (because the fruits and
other benefits of the thing belong to all the co-owners) Concept of possession
2. Mutual reimbursement for expenses (necessary expenses, taxes, etc)  As a distinct legal concept, possession is the holding of a thing or the
3. Indemnity for damages caused by reason of negligence or fraud enjoyment of a right with the intention to possess in one’s own right
4. Reciprocal warranty for defects of title or quality of the portion assigned
to a co-owner (land allotted to a co-owner belongs to a third party, or the Ownership and possession distinguished
property is of inferior quality)  There is ownership when a thing pertaining to one person is completely
a. Atty Abrenica said that in practice, the remedy in this situation subjected to his will in a manner not prohibited by law and consistent
is to divide the remaining property and just give it to the one with the rights of others. It confers certain right to the owner (right to
prejudiced enjoy the thing owned and the right to exclude other persons from
possession thereof)
THE CONDOMINIUM ACT  On the other hand, possession is defined as the holding of a thing or the
 A condominium is an enjoyment of a right. To possess means to actually and physically
o Interest in real property consisting of occupy a thing with or without a right.
 A separate interest in a unit in a residential, industrial,  Possession may be in the concept of an owner or in the concept of a
or commercial building, and holder.
 An undivided interest in common directly or indirectly  A person may be declared owner but he may not be entitled to
in the land on which it is located and in other common possession. (As in when the possession is in the hands of a tenant)
areas of the building.  A judgment for ownership does not necessarily include possession as a
 Two important documents: Master Deed and Declaration of Restrictions necessary incident.
 Foreigners can own up to 40% of the entire condominium corporation  Just as possession is not a definite proof of ownership, neither is non-
(so if the condominium has 100 units, foreigners can own up to 40 units) possession inconsistent with ownership.

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2. Possession with a juridical title

What are the elements of possession?  Predicated on a juridical relation existing between the possessor
1. Holding or control of a thing or right and the owner (or one acting in his behalf) of the thing but not in the
 Possession always implies the element of corpus or occupation, concept of owner, such as that of a lessee, usufructuary,
whether in one’s own name or another (except in cases in Art 537) depositary, agent, etc
 In other words, there must be possession in fact 3. Possession with a just title
2. With intention to possess  Possession of an adverse claimant whose title is sufficient to
 the intention and the will to possess are inferred from the fact that transfer ownership but is defective, such as when the seller is not
the thing is under the control of the alleged possessor, however, the true owner or could not transmit his rights thereto to the
the existence of the animus possidendi is always subject to possessor who acted in good faith
contradiction (when in fact the person does not in fact exercise 4. Possession with a title in fee simple
such power of control and does not intend to do so)  Possession derived from the right of dominion or possession of an
 Insane and demented persons cannot acquire possession as they owner. This is the highest degree of possession.
are incapable of understanding their actions, therefore, the animus
possidendi cannot be present Nature of possession
3. In one’s own right 1. As an act
 Possession may be in one’s own name or that of another’s (by  Simply the holding of a thing or the enjoyment of a right with the
himself or by an agent) intention to possess in one’s own right
 In the first case, the possession may be in the concept of owner or 2. As a fact
in the concept of a holder of a thing with ownership pertaining to  When there is holding or enjoyment, then possession exists as a
another fact. It is the state or condition of a person having property under
 In the second case, the possession is exercised by the owner or his control, with or without right
holder thru his agent 3. As a right
 In both cases, the possession of the owner or holder is by virtue of  Refers to the right of a person to that holding or enjoyment to the
his right as such owner or holder exclusion of all others having better right than the possessor. It may
be:
What are the relations created by possession? o Jus possidendi, or right to possession which is incidental
 Possession is characterized by two relations: to and included in the right of ownership; or
1. Possessor’s relation to the property itself – this assumes that the o Jus possessionis or right of possession independent of
possessor exercises some degree of control more or less effective and apart from the right of ownership.
over the object.
2. Possessor’s relation to the world – aside from the power of control Possession as a fact
over the object, the possessor must also have the ability to exclude 1. The face of possession gives rise to certain rights and presumptions.
others from his possession. A customer who holds and examines a  Thus a person has a right to be respected in his possession, and
piece of jewelry in the presence of the seller may be said to have should he be disturbed therein, he shall be protected or restored to
only custody, not possession, of the jewelry. said possession.
 A possessor has in his favor the presumption that his possession is
Forms or degrees of possession lawful – that he is the owner or has been given the right of
1. Possession without any title whatever possession by the owner. He who would disturb a possessor must
 Mere holding or possession without any right or title at all, such as show either ownership or a better possessory right.
that of a thief or squatter

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2. Possession is not a definitive proof of ownership nor is non-possession 1. In one’s own name
inconsistent therewith. Possession, however, may create ownership o When in one’s own name, the fact of possession and the right
either by occupation or by acquisitive prescription. to such possession are found in the same person, such as the
actual possession of an owner or a lessor of land.
Classes of possession 2. In the name of another
1. Possession in one’s own name or in the name of another (Art 524) o When possession is in the name of another, the one in actual
2. Possession in the concept of owner or possession in the concept of possession is without any right of his own, but is merely an
holder (Art 525), and instrument of another in the exercise of the latter’s possession,
3. Possession in good faith or possession in bad faith (Art 526) such as possession of an agent, servant or guard. Possession
in another’s name may be:
Extent of possession  Voluntary, when exercised by virtue of an agreement,
1. Actual possession or
 Occupancy in fact of the whole or at least substantially the whole.  Necessary or legal, when exercised by virtue of law,
With land, it consists in the manifestation of acts of dominion over it such as the possession in behalf of incapacitated
of such a nature as a party would naturally exercise over his persons.
property.  Physical or material, when the possessor is a mere
 Literally, to possess means to actually and physically occupy a custodian of the property and has no independent
thing with or without a right. right or title to retain or possess the same as against
2. Constructive possession the owner (like the possession of money received by
 Occupancy of part in the name of the whole under such circumstances a teller for the bank), or
that the law extends the occupancy to the possession of the whole.  Juridical, when the possession gives the transferee a
Doctrine of constructive possession right over the thing which the transferee may set up
 Possession in the eyes of the law does not mean that a man has to against the owner, such as the possession of an
have his feet on every square meter of ground before it can be said that agent who receives the proceeds of sales of goods
he is in possession. delivered to him in agency by his principal.
 The general rule is that the possession and cultivation of a portion of a
tract of land under claim of ownership of all is constructive possession Case doctrines
of all.  In the grammatical sense, to possess means to have, to actually and
o There are qualifications to this rule, and one of them is that physically occupy a thing, with or without a right. Two things are
relating to the size of the tract in controversy with reference to paramount in possession –
the portion actually in possession of the claimant. o there must be occupancy, apprehension or taking, and
o there must be intent to possess (animus possidendi). (Yu v
Pacleb)
Art 524 Possession may be exercised in one’s own name or in that of  Possession always includes the idea of occupation. It is not necessary
another. that the person in possession should himself be the occupant. The
occupancy can be held by another in his name. without occupancy,
Name under which possession may be exercised there is no possession. (Yu v Pacleb)
 An owner or a holder may exercise his possession in his own name or
through another.
 In the same way, possession may be acquired by the same person who Art 525 The possession of things or rights may be had in one of two
is to enjoy it or by one acting for another (Art 532) concepts: either in the concept of owner, or in that of the holder of the

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thing or right to keep or enjoy it, the ownership pertaining to another

person. Case doctrines
 Possession is:
Concept in which possession may be had o open when it is patent, visible, apparent, notorious and not
 Concept, as contemplated in the provision, does not mean the opinion, clandestine.
attitude or belief of the possessor, but of the others, generally in view of o continuous when uninterrupted, unbroken and not intermittent
the circumstances which precede and accompany the possession. or occasional.
 Thus, possession in the concept of owner is distinguished from o exclusive when the adverse possessor can show exclusive
possession in good faith. dominion over the land and an appropriation of it to his own
 This kind of possession is also referred as to adverse possession that use and benefit
may ripen into ownership under Article 540. o notorious when it is so conspicuous that it is generally known
 Possession may be had in one of two concepts: and talked off by the public or the people in the neighborhood.
1. Possession in the concept of owner (en concepto de dueno)  Use of land is adverse when it is open and notorious. (Republic v
 This takes place when the possessor, by his actions, is Imperial Credit Corporation)
considered or is believed by other people as the owner,  While a tax declaration by itself is not sufficient to prove ownership, it
regardless of the good or bad faith of the possession. may serve as sufficient basis for inferring possession. (Rep v ICC)
 It is possession under a claim of ownership or title by one who  Tax declarations and receipts can only be the basis of a claim of
is the owner himself or one who is not the owner but claims to ownership through prescription when coupled with proof of actual
be and acts as the owner. possession. (Heirs of Cabal v Cabal)
2. Possession in the concept of holder  However, tax declarations and receipts are not conclusive evidence of
 This takes place when the possessor of a thing or right holds it ownership. At most, they constitute mere prima facie proof of ownership
merely to keep or enjoy it, the ownership pertaining to another or possession of the property for which the taxes have been paid. In the
person. absence of actual public and adverse possession, the declaration of the
 It is possession not under a claim of ownership, the possessor land for tax purposes does not prove ownership. (Cequena v Bolante)
acknowledging in another a superior right which he believes to
be of ownership, whether this be true or not, or his belief be Art 526 He is deemed a possessor in good faith who is not aware that
right or wrong. there exists in his title or mode of acquisition any flaw which
 A person may be a lessor although he is not the owner of the invalidates it.
property leased. In lease, only the temporary use and He is deemed a possessor in bad faith who possesses in any
enjoyment, not the ownership of the property is transferred. case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law may be the
Possession in concept of both owner and holder or in neither basis of good faith.
 It is possible that a person may exercise possession both in the concept
of owner and in the concept of holder. Define possessor in good faith and in bad faith
 A distinction must be borne in mind between possession of the thing  A possessor in good faith (Buena fe) is one who is not aware that there
itself and possession of the right to keep or enjoy the thing. exists in his title or mode of acquisition any flaw which invalidates it.
o Rights are possessed in the concept of owner. Thus, the  A possessor in bad faith (mala fe) is one who possesses in any case
lessee possesses the thing leased in the concept of holder, contrary to the foregoing; he is aware that there exists in his title or
and the right of lease in the concept of owner. mode of acquisition a flaw which invalidates it.
 The agent, parent and other legal representatives possess neither in the  This article presupposes that the there exists a flaw in the title or mode
concept of owner nor holder. They possess in the name of another. of acquisition of the possessor who is either aware or not aware of it.

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 If there is no flaw, there can be no issue regarding good or bad faith.  One is considered a possessor in good faith if he is not aware that there
 Good faith is always presumed, and upon him who alleges bad faith on exists in his title or mode of acquisition any flaw which invalidates it.
the part of the possessor rests the burden of proof.  Basically, it’s honesty of intention and absence of malice.
 The distinction is importance principally in connection with the receipt of
fruits and the payment of expenses and improvements and the Concept of bad faith
acquisition of ownership by prescription.  It is the opposite of good faith.
 The distinction is immaterial in the exercise of the right to recover under  It imputes a dishonest purpose to do wrong or cause damage.
Article 539 which speaks of every possessor.  It contemplates a state of mind affirmatively operating with furtive design
 The good or bad faith is necessarily personal to the possessor but in the or some motive of self-interest of ill-will for ulterior purposes.
case of a principal and any person represented by another, the good or
bad faith of the agent or legal rep will benefit or prejudice him for whom Mistake upon a doubtful or difficult question of law
he acts.  The phrase “mistake upon a doubtful or difficult question of law” refers
to the honest error in the application of the law or interpretation of
Requisites for possession in good faith or bad faith doubtful or conflicting legal provisions or doctrines.
1. The possessor has a title or mode of acquisition; (Art 712)  It is different from “ignorance of the law.”
2. There is a flaw or defect in said title or mode; and  Manresa says that gross and inexcusable ignorance of the law may not
3. The possessor is unaware or aware of the flaw or defect or believes that be the basis of good faith, but excusable ignorance may be such basis if
the thing belongs or does not belong to him. it is based upon ignorance.
 A possessor in good faith becomes a possessor in bad faith from the  Dean Capistrano says that excusable ignorance as a basis of good faith
moment he becomes aware that what he believes to be true is not so. was rejected by the Code Commission.
 If the flaw is in the title of the possessor’s predecessor, and affects his
own title, the flaw exists in his own title unless he can sustain his own Case doctrines
independent of that of his predecessor.  The possessor with a Torrens Title who is not aware of any flaw in his
title which invalidates it is considered a possessor in good faith and his
Concept of good faith possession does not lose this character except in the case and from the
 Good faith or the lack of it is a question of intention, but in ascertaining moment his Torrens Title is declared null and void by final judgment of
the intention, the courts are necessarily controlled by the evidence as to the Courts. (Dizon v Rodriguez)
the conduct and outward acts by which alone the inward motive may be  The defense of having purchased the property in good faith may be
determined. availed of only where registered land is involved and the buyer had
 Good faith or the want of it, is not a visible, tangible fact that can be relied in good faith on the clear title of the registered owner. (Daclag v
seen or touched but rather a state or condition of mind which can only Macahilig)
be ascertained by actual or fancied tokens or signs.
 The essence of bona fides or good faith lies in:
o The honest belief in the validity of one’s right, Art 527 Good faith is always presumed, and upon him who alleged bad
o ignorance of a superior claim, and faith on the part of a possessor rests the burden of proof.
o absence of intention to overreach another, or to defraud or to
seek an unconscionable advantage. (also the doctrine of Heirs Presumption of good faith
of Cabal)  This article establishes the presumption of good faith; it does not say
 Good faith must rest on a colorable right in the possessor beyond a that good faith exists, but that it is presumed.
mere stubborn belief in one’s title.

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 The presumption is just because possession is the outward sign of

ownership. It is to be presumed that the right of the possessor is well- Art 529 It is presumed that possession continues to be enjoyed in the
founded. same character in which it was acquired, until the contrary is proven.
 Every person is presumed to be honest until the contrary is shown.
 But note that for the purposes of prescription, just title must be proved; it Continuity of the character of the possession
is never presumed.  The character or possession (good faith or bad faith) is presumed to
continue until the contrary is proved
Art 528 Possession acquired in good faith does not lose this character  No one can, by his sole will nor by the mere lapse of time, change the
except in the case and from the moment facts exist which show that cause of his possession.
the possessor is not unaware that he possesses the thing improperly
or wrongfully. Presumption on the continuance of possession
 There are other presumption aside from Articles 527 and 529 affecting
Cessation of good faith during possession possession, namely:
 Possession which begins in good faith is presumed to continue in good 1. Uninterrupted possession of hereditary property (Art 533)
faith until the possessor acquires knowledge of facts showing a defect 2. Possession with just title (Art 541)
or weakness in his title. 3. Possession of movables with real property (Art 542)
 The law speaks of “facts” in place of the word “acts”, the former being 4. Exclusive possession of common property (Art 543)
broader than the latter. Thus, it is immaterial whether the “facts” from 5. Continuous possession (Art 544)
which bad faith can be deduced involve acts of the possessor himself or 6. Uninterrupted possession (Art 561), and
of some other person or any extraneous evidence. But the existence of 7. Possession during intervening period (Art 1138)
the facts mentioned in the article must be proved.
 Bad faith begins or good faith is interrupted from the time the possessor Case doctrines
becomes aware “that the he possesses the thing improperly or  Possession, to constitute the foundation of a prescriptive right, must be
wrongfully,” not from the time possession was acquired. possession under a claim of title, that is, it must be adverse. (Bogo-
 In the absence of other facts showing the possessor’s knowledge of Medellin v CA)
defect in his title, good faith is interrupted from the receipt or service of  An acknowledgment of the easement is an admission that the property
judicial summons. belongs to another. It gives the holder of the easement an incorporeal
o From the service of judicial summons, there exists an act interest on the land but grants no title thereto. (Bogo v CA)
which the possessor knows that his right is not secure, that  Mere material possession of land is not adverse possession as against
someone disputes it, and that he may yet lose it; and if the the owner and is insufficient to vest title, unless such possession is
court orders that restitution be made, that time determines all accompanied by the intent to possess as an owner. (Bogo v CA)
the legal consequences of the interruption, the time when the
possession in good faith ceases to be so before the law.
o The filing of a case alleging bad faith on the part of a vendee Art 530 Only things and rights which are susceptible of being
gives cause or cessation of good faith. appropriated may be the object of possession.

Case doctrines Object of possession

 When a contract of sale is void, the possessor is entitled to keep the  To be the object of possession, the thing or right must be susceptible of
fruits during the period for which it held the property in good faith, which being appropriated.
good faith ceases when an action to recover possession of the property
is filed against him and he is served summons therefor. (DBP v CA)

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 There are more things susceptible of appropriation than there are things  The material occupation of a thing as a means of acquiring possession
within the commerce of men (i.e. those that can be acquired by may take place by actual or constructive delivery. Constructive delivery
prescription). includes:
o With respect to res nullius (property without owner), they can 1. Tradicion brevi manu which takes place when one already in
be possessed because theya re capable of being appropriated possession of a thing by a title other than ownership continues to
but hey cannot be acquired by prescription which presupposes possess the same under a new title, that of ownership.
prior ownership in another. For as long as a thing is res nullius, 2. Tradicion constitutum possessorium which happens when the
it is not within the commerce of men. owner continues in possession of the property alienated not as
o Property of public dominion cannot also be the object of owner but in some other capacity, such as that of lessee, pledgee,
prescription. The same is true of common things but both may or depositary.
be the object of possession.
Subject of the action of will
 The second method of acquisition is so broad in scope that it practically
covers all means of acquiring possession.
CHAPTER 2
 What the law contemplates is a distinct cause of acquiring possession
ACQUISITION OF POSSESSION and not merely an effect.
 It refers more to the right of possession than to possession as a fact.
Art. 531. Possession is acquired by the material occupation of a thing
 Examples of which are these kinds of constructive delivery:
or the exercise of a right, or by the fact that it is subject to the action of
1. Tradicion longa manu, which is effected by the mere consent or
our will, or by the proper acts and legal formalities established for
agreement of the parties, as when the vendor merely points to the
acquiring such right. (438a)
thing sold
2. Tradicion simbolica, which is effected by delivering an object such
Ways of acquiring possession
as a key where the thing sold is stored or kept
 To be considered in possession, one need not have actual or physical
occupation of a thing all times. There are three ways of acquiring Proper acts and legal formalities
possession, namely:
 This last method of acquiring possession refers to acquisition by virtue
1. By the material occupation or exercise of a right;
of a just title such as when property is transmitted by succession,
2. By the subjection of the thing or right to our will; and
donation, contract, or execution of a public instrument, or when
3. By proper acts and legal formalities established for acquiring such
possession is given by the sheriff to the highest bidder at a public
right of possession.
auction, or pursuant to a writ of execution.
 The modes of acquiring ownership can be seen in Article 712.
 Unless there is a stipulation to the contrary, the execution of a sale thru
a public instrument shall be equivalent to the delivery of the thing. But
Material occupation or exercise of right
there is no delivery notwithstanding the execution of the instrument,
1. With respect to things – the law requires material occupation as one of
where the purchaser cannot have the enjoyment and make use of the
the modes of acquiring possession.
thing sold because such enjoyment and use are opposed or prevented
2. With respect to rights – since rights are intangible and cannot logically
by another.
be occupied, what is acquired is the exercise of a right. For example,
 Under Article 538, possession as a fact cannot be recognized at the
possession of a servitude of way, which is a right, is acquired by the
same time in two different personalities except in the cases of co-
exercise of the right (by passing over the servient land)
possession
Material occupation by delivery

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 A sale with pacto de retro transfers the legal title to the vendee, and in  If a person authorized to acquired possession for another acted beyond
the absence of an agreement to the contrary, carries with it the right to his powers, the principal is not bound unless the latter ratifies the act of
the possession of the property sold. acquisition.
 The exception is when a person voluntarily manages the property or
Case doctrines business of another. In such case, the stranger’s (gestor’s) possession
 Possession alone is not sufficient to acquire title to alienable lands of takes effect even without ratification by the owner of the property or
the public domain because the law requires possession AND business.
occupation.
 Possession is broader than occupation because it includes constructive Case doctrines
possession. When the lad adds the word occupation, it seeks to delimit
the all encompassing effect of constructive possession. One’s Art. 533. The possession of hereditary property is deemed transmitted
possession must not be a mere fiction. Acutla possession of a land to the heir without interruption and from the moment of the death of the
consists in the manifestation of acts of dominion over it of such a nature decedent, in case the inheritance is accepted.
as a party would naturally exercise over his own property. (Ong v One who validly renounces an inheritance is deemed never to
Republic) have possessed the same. (440)
 Possession cannot be acquired through force or violence. To all intents
and purposes, a possessor, even if physically ousted, is still deemed the Acquisition of possession through succession
legal possessor. (Cequena v Bolante)  The rights to the succession are transmitted from the moment of the
death of the decedent.
Art. 532. Possession may be acquired by the same person who is to  From that moment, each of his heirs becomes the undivided owner of
enjoy it, by his legal representative, by his agent, or by any person the whole estate left with respect to that portion which might be
without any power whatever: but in the last case, the possession shall adjudicated to him.
not be considered as acquired until the person in whose name the act  The inheritance may be accepted or repudiated.
of possession was executed has ratified the same, without prejudice to  There is no doubt that an heir can sell whatever right, interest or
the juridical consequences of negotiorum gestio in a proper case. participation he may have in the property under administration, subject
(439a) to the result of said administration.
 In case the inheritance is accepted, the possession of the hereditary
By whom possession acquired property is deemed transmitted by operation of law to the heir without
 Possession may be acquired: interruption and from the moment of death of the decedent.
1. Personally or by the same person who is to enjoy it;  In this inheritance is validly renounced, the heir is deemed never to
2. Thru an authorized person or by his legal representative or by his have possessed the same.
agent, and  See book for examples.
3. Thru an unauthorized person or by any person without any power
or authority whatever. Art. 534. On who succeeds by hereditary title shall not suffer the
consequences of the wrongful possession of the decedent, if it is not
Acquisition of possession through another shown that he was aware of the flaws affecting it; but the effects of
 Possession acquired by a person personally or thru another may be possession in good faith shall not benefit him except from the date of
exercised by him in his own name or in that of another. But minors and the death of the decedent. (442)
other incapacitated persons need the assistance of their legal
representatives to exercise the rights arising from possession. Effects of bad faith of decedent on heir

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 If the decedent was in bad faith, the heir shall not suffer the and he can be compelled to return the property in an action for forcible
consequences of the wrongful possession of the latter because bad entry and must suffer the necessary and natural consequences of his
faith is personal to the decedent and is not deemed transmitted to the lawlessness.
heirs.  A party who can prove prior possession, whatever may be the character
 The heir suffers the consequences of such possession only from the of the possession, has the security that entitles him to recover such
moment he becomes aware of the flaws affecting the decedent’s title. possession or to remain on the property even against the owner himself
 See book again for examples. until he is lawfully ejected by accion publiciana or accion reivindicatoria.

Case doctrines Art. 537. Acts merely tolerated, and those executed clandestinely and
 A possessor in bad faith should not prejudice his successors-in-interest. without the knowledge of the possessor of a thing, or by violence, do
Bad faith is personal and intransmissible. (Escritor v IAC) not affect possession. (444)
Art. 535. Minors and incapacitated persons may acquire the
possession of things; but they need the assistance of their legal Acts which do not give rise to possession
representatives in order to exercise the rights which from the  The acts mentioned do not affect possession, i.e. the person in
possession arise in their favor. (443) possession does not lose the same nor does the person who results to
them acquire it. In other words, the true possessor is deemed to have
Acquisition and exercise of rights of possession by minors and incapacitated enjoyed uninterrupted possession.
persons o Force or intimidation – as long as there is a possessor who
 The persons referred to in the provision are unemancipated minors and objects thereto, such as by suit of forcible entry. The rule does
other persons who have no capacity to act like spendthrifts, deaf-mutes not apply if the possessor makes no objection, withdraws his
who cannot read and write, those under civil interdiction, etc. objection or takes no action whatsoever after initially objecting
 Things here are limited to corporeal things only. to the deprivation.
 This article refers principally but not exclusively to material occupation. o Acts executed clandestinely and without the knowledge of the
 Incapacitated persons may acquire property or rights by prescription possessor – which mean that the acts are not public and
either personally or through their parents, guardians or legal reps. Once unknown to the possessor or owner.
possession of a thing is acquired by such persons, there is born the o Acts merely tolerated – which do not refer to all kinds of
right of possession. In the exercise of this right, they need the tolerance on the part of the owner or possessor in view of the
assistance of their legal reps. use of the word ‘merely’; it means permission, express or tacit,
by virtue of which the acts of possession are performed.
Art. 536. In no case may possession be acquired through force or Hence, it is simply a question of whether permission was given
intimidation as long as there is a possessor who objects thereto. He or not.
who believes that he has an action or a right to deprive another of the  Possession of another by mere tolerance is not adverse and no matter
holding of a thing, must invoke the aid of the competent court, if the how long continued, cannot ripen to ownership by prescription.
holder should refuse to deliver the thing. (441a)  The mere silence or failure to take any action will not be construed as
abandonment of rights on the part of the real possessor. It is, of course,
Recourse to the courts for the courts to decide whether there has been an abandonment or not.
 Every possessor has a right to be respected in his possession. The  Possession by tolerance is lawful but becomes illegal when, upon
lawful possessor may use such force as may be reasonably necessary demand to vacate by the legal owner, the possessor refuses to comply
to repel or prevent invasion or usurpation of his property. with such demand.
 This article applies to one who believes himself the owner of real
property. If he takes justice into his own hands, he is a mere intruder;

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

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

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enter upon real property to exclude another, who has prior for possession over a land, in the absence of actual possession of the
possession therefrom. (Banes case) same.
 Wrongful exclusion of prior possessor  They are merely an indicum of a claim of ownership
o The foundation of the action is really the forcible exclusion of  Nevertheless, they are good indicia of possession in the concept of
the original possessor by a person who has entered without owner
right.  Payment of realty tax coupled with actual possession in the concept of
owner is one of the most persuasive and positive indicia, which shows
Art 540 Only the possession acquired and enjoyed in the concept of the will or desire of a person to possess with claim of ownership or to
owner can serve as a title for acquiring dominion. obtain title to the land or property

Possession as basis for acquiring ownership Case doctrine

Possession acquired and enjoyed in the concept of owner may ripen into  In order than an action for recovery of possession may prosper, it is
ownership by means of prescription. indispensable that he who brings the action fully proves not only his
ownership but also the identity of the property claimed, by describing
1. As holder the location, area and boundaries thereof. Insufficient identification of
 Cannot be the basis of prescription the portion of land claimed in absolute ownership cannot ripen into
 So with possession acquired through force or intimidation (Art 536), ownership. (Serina v Caballero)
merely tolerated or which is not public and is unknown to the
present possessor (Art 537) Art 541 A possessor in the concept of owner has in his favor the legal
2. As equitable mortgage presumption that he possesses with a just title and he cannot be
 Constructive possession over the land cannot ripen into ownership obliged to show or prove it.
as it cannot be said to have been acquired and enjoyed in the
concept of owner Possessor in concept of owner presumed with just title
3. As claimant under a possessory information title (meh)  Just title does not always mean a document or a written instrument
4. As claimant under a certificate of title  Title is that upon which ownership is based
 Mere possession cannot defeat the title of a holder of a registered  Actual or constructive possession under claim of ownership raises the
Torrens title to real property disputable presumption of ownership. In other words, a possession is
 But the true owner of the property may be defeated by an innocent presumed ownership until the contrary is shown.
purchaser for value notwithstanding the fraud employed by the  A possessor is presumed to have a just title, and he cannot be obliged
seller (forger) in securing his title to show or prove it.
 Generally, a forged deed is a nullity and conveys no title. However, o Reason? To protect the owner from inconvenience, otherwise,
there are instances when such a document may become the root of he will always have to carry his titles under his arms to show
a valid title. As when the certificate of title was already transferred them to whoever who wants to see it
from the name of the true owner to the forger, and while it remained  NB: Presumption of just title does not apply in acquisitive prescription.
that way, the land was subsequently sold to an innocent purchaser Adverse possessor must prove his just title.
for value (land titles!)
5. As possessor of forest land (not possible!) Burden of proving just title
 The onus probandi is on the plaintiff who seeks the recovery of property
 Mere tax declarations of ownership do not vest or prove ownership of  A person who is not, in fact, in possession cannot acquire a prescriptive
the property in the declarant nor are even sufficient to sustain a claim right to a land by the mere assertion of a right therein. Where the

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possessor is really the owner, the fact that a third person questions his
right does not impair said right. Case doctrine
 An owner and possessor whose title is true and valid cannot be required  In order that a co-owner’s possession may be deemed adverse to the
to show that his possession is or has been adverse as against a new cestui que trusti or the other co-owners, the following elements must
claimant who has neither title nor possession. concur:
1. That he has perfomrmed unequivocal acts of repudiation amounting
What are the different kinds of title? to an ouster of the beneficiary or the other co-owners
1. Titulo verdadero y valido or true and valid 2. That such positive acts of repudiation have been made known to
 This is the title presumed in this provision the beneficiary or the other co-owners
 Sufficient to transfer ownership without need of possessing the 3. That the evidence thereon must be clear and convincing (Aguirre v
property for the period necessary for acquiring title by prescription CA)
2. Titulo justo or just title Art 542 The possession of real property presumes that of movables
 For the purposes of prescription, there is just title… therein, so long as it is not shown or proved that they should be
o When the adverse claimant came into possession of the excluded.
property through one of the modes recognized by law for the
acquisition of ownership or other real rights, Possession of real property presumed to include movables
o but the grantor was not the owner or could not transmit any  Article 542 refers to material possession only of things, not rights
right  Possession may be in the concept of owner, of holder, in one’s own
 For prescription, just title must be proved, it is never presumed. name or in another’s, or in good faith or in bad faith
 It must be remembered that the burden of proving the status of a  It is normal that movables which are found in an immovable belong to
purchaser in good faith lies upon him who asserts that status. It is the possessor of the latter
not sufficient to invoke the ordinary presumption of good faith, that  If the building is occupied by the lessee, we can suppose the same with
is, that everyone is presumed to have acted in good faith, since the respect to him because in this case, the possessor is the lessee
good faith that is here essential is integral with the very status that  Again, this is a mere presumption.
must be established. (Aguirre v CA)
3. Titulo colorado or colorable title Art 543 Each one of the participants of a thing possessed in common
 One which a person has when he buys a thing in good faith, from shall be deemed to have exclusively possessed the part which may be
one who is not the owner but whom he believes to be the owner allotted to him upon the division thereof, for the entire period during
 The just title required for acquisitive prescription is titulo Colorado which the co-possession lasted. Interruption in the possession of the
4. Titulo putativo or putative title whole or a part of a thing possessed in common shall be to the
 One which a person believes he has title but in fact he has not prejudice of all the possessors. However, in case of civil interruption,
because there was no mode of acquiring ownership the Rules of Court shall apply.
 As when one is in possession of a thing in the mistaken belief that it
had been bequeathed to him Exclusive possession of previous co-owner deemed continuous
 Article 543 speaks of co-possession of a thing, not of co-ownership
What’s the difference between titulo Colorado and titulo verdadero y valido?  Nevertheless, its principle is applicable to co-possession of a real right
In Colorado, there is a need for prescription to transfer ownership. In true  Co-possession can be over a thing or a right
and valid title, there is no need for prescription, ownership is transferred  All participants of a thing possessed in common constitute only one
once the mode of transfer has been perfected. (Be it by sale, donation, personality and the personality ceases when there is a partition.
succession, etc).  From that moment of cessation, the personality of each participant
begins.

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 Each co-possessor is deemed (not merely presumed!) to have  In a co-possession, there is only one thing and many possessors. If the
possessed exclusively and continuously during the period of co- right of a co-possessor is contested, he alone shall be prejudiced.
possession the part assigned to him in the division.  With respect to the thing, the prejudice shall be against all.
 The effects of the division retroact to the commencement of the co-
possession. Art 544 A possessor in good faith is entitled to the fruits received
 But the division shall be without prejudice to the rights of creditors. before the possession is legally interrupted.
Natural and industrial fruits are considered received from the
Harry, Ron, and Hermione have been co-possessors in the concept of time they are gathered or severed.
owners of a 15 hectare parcel of land until they divided the property equally Civil fruits are deemed to accrue daily and belong to the
on the 8th year. If on the 4th year after the division, Draco claims ownership possessor in good faith in that proportion.
of the portion allotted to Harry, Harry can assert title by acquisitive
prescription through possession for 10 years, for he is deemed to have Art 545 If at the time the good faith ceases, there should be any natural
possessed his portion exclusively and continuously for a period of 12 years. 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
Interruption in possession of the thing proportion to the time of possession.
 Both the benefits and the prejudices that might have taken place during The charges shall be divided on the same basis by the two
the co-possession shall attach to each of the co-participants possessors.
 Prescription obtained by a co-possessor shall benefit the others The owner of the thing may, should he so desire, give the
 Interruption in the possession of the whole or part of a thing shall be to possessor in good faith the right to finish the cultivation and gathering
the prejudice of all the possessors. of the growing fruits, as an indemnity for his part of the expenses of
 Possession is interrupted for purposes of prescription either cultivation and the net proceeds; the possessor in good faith who for
o Naturally (when through any cause it should cease for more any reason whatever should refuse to accept this concession, shall
than 1 year) lose the right to be indemnified in any other manner.
o Civilly (when the interruption is produced by judicial summons
to the possessor)  The fruits of a thing generally belong to the owner (Art 441) but a
 In civil interruption, only those possessors served with possessor in good faith is entitled to the fruits received until good faith
judicial summons are affected. ceases and bad faith begins.
 For civil interruption to take place, the possessor must  Legal interruption of possession in good faith takes place upon service
have received judicial summons. of judicial summons to the possessor.
 When will summons not be deemed to have been o All fruits that the possessor may receive from the time that he
issued and shall not give rise to interruption? is summoned, or when he answers the complaint, must be
1. If it should be void for lack of legal solemnities, or delivered or paid by him to the owner or lawful possessor.
2. If the plaintiff should desist from the complaint or  Whenever there is cessation of good faith in the eyes of the law,
should all the proceedings to lapse, or whether by reason of the filing of a complaint or not, possession in good
3. If the possessor should be absolved from the faith should be deemed legally interrupted from such cessation and not
complaint. merely from the service of judicial summons.
 A notice for adverse claim does NOT interrupt  When the owner or possessor with a better right comes along, when he
prescription (Heirs of Arzadon-Crisologo v Ranon) becomes aware that what he had taken for granted is at least doubtful,
 Interruption must refer to the whole thing itself or part of it and not to a and when he learns the grounds in support of the adverse claim, good
part or right of a co-possessor. faith ceases.

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 Possessor in bad faith is not entitled to the fruits. He has the duty to necessary expenses
reimburse the fruits received including that which the legitimate for preservation,
possessor could have received. cultivation, and
 The right of the possessor in good faith is limited to the fruits, referring gathering of fruits.
to natural, industrial and civil fruits (Art 441). Other things (building)
belong to the owner of the land. b. Pending Owner has 2 options:
No rights, not even
When fruits considered received First: Pro-rating reimbursement of
1. For natural and industrial fruits – from the time they are gathered or (based on period of expenses for
severed. Fruits gathered before legal interruption belong to the possession) between cultivation (because by
possessor in good faith. possessor and owner right of accession, all
2. For civil fruits – their accrual, not their actual receipt, shall determine of: expenses, net fruits belong to owner
when they are considered received at the time the good faith is legally harvest and charges without need to pay
interrupted. They are deemed to accrue daily and belong to the indemnity)
possessor in good faith in that proportion.
Second: To allow Must pay damages as
Kinds of Fruits Possessor in Good Possessor in Bad Faith possessor to stay in reasonable rent for the
Faith possession until after term of possession
1. Civil fruits Entitled to fruits from Not entitled to fruits. all fruits are gathered
start of possession (which shall serve as
until legal interruption Must pay damages as the indemnity for
rental from time expenses)
possession started
until possession is Proportionate division of fruits and expenses
finally defeated  Art 545 does not apply when the possessor is in bad faith, the fruits are
2. Natural/Industrial civil, or the fruits are natural or industrial but they have been gathered or
Fruits severed when good faith ceases
 A possessor in bad faith has no right whatsoever to the fruits, gathered
a. Gathered Right to retain fruits Must account for fruits or pending, except only necessary expenses for gathered fruit (Art 443,
and return value of: 449). Since civil fruits are produced day by day, Art 545 does not apply
fruits actually received, to them.
and fruits which the  In the case of fruits already gathered at the time good faith ceases, it is
legal possessor could Art 544 that is applicable.
have received with due  If there are pending natural and industrial fruits at the time good faith
care and diligence. ceases, the two possessors shall share in the expense of cultivation and
the charges (expenses made not on the property itself but on account of
Must pay damages as it, such as taxes, interest on mortgages) in proportion to the time of
reasonable rent for the possession.
term of possession.  They will also share on the fruits in proportion to the time of possession
as well.
But entitled to  What if there are no fruits or the fruits are less than expenses?

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Mickey Ingles
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o If there is no net harvest because there are no fruits or the Faith

fruits are less than the expenses, art 545 won’t apply. If the Necessary Expenses Entitled to Entitled to
fruits are merely insufficient, the same should be divided in reimbursement reimbursement
proportion to their respective expenses. Right of retention No right of retention;
o No fruits? Each should bear his own expenses subject to the pending full must vacate property
right of the possessor in good faith to be refunded for reimbursements (recourse is to file
necessary expenses under Art 546, unless the owner of new collection case)
possessor exercises his option referred to above. Liable for damages as
reasonable rent for
Art 546 Necessary expenses shall be refunded to every possessor; but period of possession
only the possessor in good faith may retain the thing until he has Useful expenses Owner has 2 options: No rights
reimbursed therefore.
Useful expenses shall be refunded only to the possessor in Option 1:
good faith with the same retention, the person who has defeated him in reimbursement of
the possession having the option of refunding the amount of the either (a) amount spent
expenses or of paying the increase in value which the thing may have or (b) increase in value
acquired by reason thereof. with right of retention
with full payment.
Art 547 If the useful improvements can be removed without damage to
the principal thing, the possessor in good faith may remove them, Option 2: To allow
unless the person who recovers the possession exercises the option possessor to remove
under paragraph 2 of the preceding article. provided no substantial
damage or injury is
Art 548 Expenses for pure luxury or mere pleasure shall not be caused
refunded to the possessor in good faith; but he may remove the Luxurious expenses Owner has 2 options: Owner has 2 options:
ornaments with which he has embellished the principal thing if it
suffers no injury thereby, and if his successor in the possession does Option 1: to allow Option 1: to allow
not prefer to refund the amount expended. possessor to remove possessor to remove
ornaments if the ornaments if the
Art 549 The possessor in bad faith shall reimburse the fruits received principal suffers no principal suffers no
and those which the legitimate possessor could have received, and injury injury
shall have a right only to the expenses mentioned in paragraph 1 of
Article 546 and in Article 443. The expenses incurred in improvements Option 2: to retain the Option 2: to retain the
for pure luxury or mere pleasure shall not be refunded to the ornament by refunding ornament by refunding
possessor in bad faith, but he may remove the objects for which such the amount spent for the value of the
expenses have been incurred, provided that the thing suffers no injury the ornament ornament at the time
thereby, and that the lawful possessor does not prefer to retain them owner enters into
by paying the value they may have at the time he enters into possession (which
possession. means depreciated
value)
Expenses Possessor in Good Possessor in Bad Faith Deterioration/loss No liability unless due Always liable whether

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to fraudulent intent or before or after service  The former possessor got the benefits from the property during his
negligence after of judicial summons, possession. It is but just that the improvements mentioned which take
service of judicial for any cause, even place after the possession is recovered inure to the owner or lawful
summons fortuitous event. possessor. Hence, he should not pay for them.

Art. 552. A possessor in good faith shall not be liable for the
 Necessary expenses are made for the preservation of the thing of those deterioration or loss of the thing possessed, except in cases in which it
which seek to prevent the waste, deterioration, or loss of the thing; or is proved that he has acted with fraudulent intent or negligence, after
those without which the thing would deteriorate or be lost. the judicial summons.
 Useful expenses are expenses which add value to a thing, or augment A possessor in bad faith shall be liable for deterioration or
its income. loss in every case, even if caused by a fortuitous event. (457a)
 Luxurious expenses are expenses not necessary for the preservation of
a thing nor do they increase its productivity although they add value to Art. 553. One who recovers possession shall not be obliged to pay for
the thing, but are incurred merely to embellish the thing and for the improvements which have ceased to exist at the time he takes
convenience or enjoyment of particular possessors. possession of the thing. (458)

Improvements which have ceased to exist

Case doctrine  The improvements referred to were enjoyed by the possessor alone.
 A possessor in bad faith is entitled to be reimbursed for her expenses in  Having ceased to exist, the owner or lawful possessor who came too
restoring a house to its original condition after it had been partly late cannot benefit from them. But he is liable for necessary expenses
damaged by fire, because such expenses are necessary, and under even if the thing for which they were incurred no longer exists.
546, are to be refunded even to possessors in bad faith.  Necessary expenses are not considered improvements.
 A builder in bad faith, under 449, is not entitled to reimbursement. But
449 is a rule of accession, which is not applicable where a new house Art. 554. A present possessor who shows his possession at some
was not built on the land of another but only repairs were made on a previous time, is presumed to have held possession also during the
house that had been partly destroyed by fire. This latter case comes intermediate period, in the absence of proof to the contrary. (459)
under 546 which provides for the refund of necessary expenses to every
possessor. (Cosio v Palileo) Presumption of possession during intervening period
 This article contemplates a situation where a present possessor is able
Art. 550. The costs of litigation over the property shall be borne by to prove his possession of a property at a prior period but not his
every possessor. (n) possession during the intervening period.
 He is presumed to have possessed the property continuously without
Art. 551. Improvements caused by nature or time shall always insure to interruption, unless the contrary is proved.
the benefit of the person who has succeeded in recovering  The presumption is useful for purposes of prescription.
possession. (456)
Art. 555. A possessor may lose his possession:
Improvements caused by nature or time 1. By the abandonment of the thing;
 Article 551 covers all the natural accessions mentioned in Articles 457 2. By an assignment made to another either by onerous or
to 465 which must follow the ownership of the principal thing, and gratuitous title; 

generally, all improvements that are not due to the will of the possessor. 3. By the destruction or total loss of the thing, or because it goes
out of commerce;

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4. By the possession of another, subject to the provisions of  Assignment is understood to mean the complete transmission of the
Article 537, if the new possession has lasted longer than one thing or right to another by any lawful manner.
year. But the real right of possession is not lost till after the  It may be onerous or by gratuitous title.
lapse of ten years. (460a)  The effect is that he who was the owner or possessor is no longer so.
 Abandonment is always gratuitous.
Modes of losing possession
 This provision applies to both real and personal property except no. 4 Destruction, total loss, or withdrawal from commerce
which obviously refers only to personal property (obvious raw eh, sabi ni  Destruction or total loss covers not only that which is caused voluntarily
de Leon. Yabang naman niya). The next article is expressly made or intentionally but also that which is caused by accident.
applicable only to movables.  A thing is lost when it perishes, or goes out of commerce, or disappears,
etc. (Art 1189)
What is abandonment?
 Abandonment is the voluntary renunciation of all rights which a person Possession of another for more than one year
has over a thing thereby allowing a third person to acquire ownership or  This refers to possession de facto (as a fact or material possession) and
possession thereof by means of occupancy. not de jure (legal right or real right of possession)
 The abandoner may be the owner or a mere possessor but the latter  After one year, the former possessor can no longer bring any action for
obviously cannot abandon ownership which belongs to another. forcible entry or unlawful detainer.
(obviously raw!)  Possession by mere tolerance even for over a year does not affect
 Since abandonment involves the renunciation of a property right, the possession de facto.
abandoner must have a right to the thing possessed and the legal  After 10 years, the possessor or owner may bring an accion publiciana
capacity to renounce it. or reivindicatoria to recover possession de jure unless he is barred by
 An owner of property cannot be held to have abandoned the same until prescription.
at least he has some knowledge of the loss of its possession or of the
thing, and a thing cannot be considered abandoned under the law until Recovery by lawful owner or possessor
the spes recuperandi (hope of recovery) is gone and the animus  Possession may also be lost when it is recovered from the person in
revertendi (intention to return) is finally given up. possession by the lawful owner in a reivindicatory action or by the lawful
 By voluntary abandonment, a thing becomes without a owner or possessor in an action to recover the better right of possession.
possessor and is converted into res nullius and may thus be acquired by
a third person by occupation. Art. 556. The possession of movables is not deemed lost so long as
 Abandonment which converts the thing into res nullius can hardly apply they remain under the control of the possessor, even though for the
to land. time being he may not know their whereabouts. (461)
 Castellano v Francisco stated that abandonment requires:
1. A clear and absolute intention to renounce a right or a claim or to Loss of possession of movables
abandon a right or property, and  The possession of movables shall be deemed lost when they cease to
2. An external act by which that intention is expressed or carried into be under the control of the possessor either becaue:
effect. o They have come into the possession of a third person; or
 The intention to abandon implies a departure, with the avowed intent of o Although, they have not been taken by another,
never returning, resuming or claiming the right and the interest that have  The possessor has completely no idea of their
been abandoned. (Castellano v Francisco) whereabouts or location (the pet rat has been missing
for sometime; or
Assignment?

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 Even if known, they cannot be recovered, whether as Art. 559. The possession of movable property acquired in good faith is
a matter of fact (an unopened box of pastillas has equivalent to a title. Nevertheless, one who has lost any movable or
been dropped in a deep lake) or of law (a movable has been unlawfully deprived thereof may recover it from the person in
lost by prescription). possession of the same.
 Possession is not lost by the mere fact that the possessor does not If the possessor of a movable lost or which the owner has
know for the time being the precise whereabout of a specific movable been unlawfully deprived, has acquired it in good faith at a public sale,
when he has not given up all hope of finding it (like a ring misplaced or the owner cannot obtain its return without reimbursing the price paid
lost in particular vicinity). In this case, the possessor has not lost his therefor. (464a)
legal right to the object.
o He retains his juridical control of the thing which remains in his Right of possessor who acquires movable claimed by another
patrimony.  If the possession of a movable property who acquired in bad faith, no
right thereto is acquired by the possessor. The property may be
Art. 557. The possession of immovables and of real rights is not recovered by the true owner or possessor without reimbursement.
deemed lost, or transferred for purposes of prescription to the  If the acquisition was in good faith, here are the rules:
prejudice of third persons, except in accordance with the provisions of o Possession in good faith of a movable is presumed ownership. It is
the Mortgage Law and the Land Registration laws. (462a) equivalent to title. This is known as the doctrine of irrrevindicability.
No further proof is necessary.
Loss of possession of immovables and real rights with respect to third o The possessor’s title, however, is not absolute. It is equivalent to
persons title but is not title itself. It is merely presumptive because it can be
 Third persons are not prejudiced except in accordance with the defeated by the true owner.
provisions of the mortgage law and the registration law.  These are the two exceptions to the general rule of irrevindicability. An
 Against a recorded title, ordinary prescription of ownership or real rights owner can recover in these two instances:
shall not take place to the prejudice of a third person, except in virtue of 1. When one has lost the movable, or
another title also recorded and the time shall begin to run from the 2. When one has been unlawfully deprived.
recording of the latter.  He may recover without reimbursement. But if the thing was
sold at a public sale, the owner must reimburse the buyer.
Art. 558. Acts relating to possession, executed or agreed to by one  These are the exceptions to the exceptions. Even when an owner has
who possesses a thing belonging to another as a mere holder to enjoy lost or has been unlawfully deprived, he still cannot recover in these
or keep it, in any character, do not bind or prejudice the owner, unless instances:
he gave said holder express authority to do such acts, or ratifies them 1. When the sale is made at merchant’s stores, fairs or markets.
subsequently. (463) 2. When the owner of the movable is, by his conduct, precluded
from denying the seller’s authority to sell;
Possessory acts of a mere holder 3. Where the law enables the apparent owner to dispose of the
 The possessor referred to in this article is the same possessor movables as if he were the true owner thereof
mentioned in Article 525. 4. Where the sale is sanctioned by statutory or judicial authority
 Acts relating to possession of a mere holder do not bind or prejudice the 5. Where the seller has a voidable title which has not been
possessor in the concept of owner unless said acts were previously avoided at the time of the sale to the buyer in good faith for
authorized or subsequently ratified by the latter. value and without notice of the seller’s defect of title
 Possession may be acquired for another by a stranger provided there (remember CLV!)
be subsequent ratification. (Art 532) 6. Where recovery is no longer possible because of prescription

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7. Where the possessor becomes the owner of the thing in  Wild animals may be the object of hunting. They are possessed only if
accordance with the principle of finder’s keepers they are under one’s control. Possession of wild animals are lost when
they regain their freedom or come under another’s control.
Case doctrines  Domesticated animals are possessed if they habitually return to the
 Non-payment does not void a sale. It is perfected upon the meeting of premises of the possessor.
the minds. Hence, ownership shall pass from the vendor to the vendee
upon the actual or constructive delivery of the thing sold. It does not Art. 561. One who recovers, according to law, possession unjustly lost,
constitute unlawful deprivation of personal property. It is a mere shall be deemed for all purposes which may redound to his benefit, to
voidable sale, and unless it is avoided before the execution of the have enjoyed it without interruption. (466)
second sale, then the second sale is valid. (EDCA v Santos)
 Purchaser in good faith of a chattel or movable property is entitled to be  This article applies to both possession in good faith as well as to
respected and protected in his possession as if he were the true owner possession in bad faith, but only if beneficial to the possessor (like for
thereof until a competent court rules otherwise. In the meantime, as the purposes of prescription)
true owner, the possessor in good faith cannot be compelled to  The recovery of possession must be according to law – through legal
surrender possession nor to be required to institute an action for the means; otherwise, the benefit of continuous and uninterrupted
recovery of the chattel. (Edu v Gomez) possession during the intervening period cannot be invoked.
 A third party who acquired in good faith a stolen vehicle and registered it
in his own name cannot lawfully refuse to return it to the true owner and TITLE VI - USUFRUCT
insist upon reimbursement before delivery. (Aznar v Yapdiangco –
stealing equals unlawful deprivation) CHAPTER ONE: USUFRUCT IN GENERAL
 The owner of a ring pledged to a pawnshop by one to whom he has
entrusted it to be sold on commission can recover it from the pawnshop. Art. 562. Usufruct gives a right to enjoy the property of another with the
(Dizon v Suntay) obligation of preserving its form and substance, unless the title
constituting it or the law otherwise provides. (467)

Art. 560. Wild animals are possessed only while they are under one's What is usufruct?
control; domesticated or tamed animals are considered domestic or 1. A right to enjoy the property of another with the obligation of preserving
tame if they retain the habit of returning to the premises of the its form and substance
possessor. (465) 2. Right to enjoy the property of another temporarily, including both the jus
utendi and jus fruendi, with the owner retaining the jus disponendi
Possession of animals 3. In essence, usufruct is nothing else but simply allowing one to enjoy
 Animals may be: another’s propery
1. Wild or animals living in a state of nature independently of and
without the aid and care of man (great white shark, ornate What are the characteristics of usufruct?
wobbegong, brazilian slug) 1. It is a real right of use and enjoyment, (whether registered or not in the
2. Domesticated or tamed, or animals which are wild or savage by Registry of Property. Registering will affect and bind third persons)
nature but have been subdued and made use of by man and 2. Of Temporary duration;
become accustomed to live in a tamed condition (tiger ni Chavit) 3. Transmissible; and
3. Domestic or tame, or any of the various animals which live and are 4. May be constituted on real or personal property, consumable or non-
born and reared, under the control and care of man, lacking the consumable, tangible or intangible, the ownership of which is vested in
instinct to roam freely (dog, cat, carabao, cow) another

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repairs
 A person cannot create a usufruct over his own property and at the
same time retain ownership of the same
 A usufruct is essentially jus in re aliena, and to be a usufructuary of
one’s own property is in law a contradiction in terms and a conceptual Art. 563. Usufruct is constituted by law, by the will of private persons
absurdity expressed in acts inter vivos or in a last will and testament, and by
 The essential requisite of usufruct is the right to enjoy the property of prescription. (468)
another Creation of usufruct
 The usufructuary is entitled to all the fruits of the property with the Usufruct may e classified according to how it is created into:
obligation to preserve its form and substance 1. Legal, or that created or declared by law
 However, the obligation of the usufructuary to preserve is only 2. Voluntary, or that created by will of the parties (an act inter vivos or an
accidental for the law or the will of the parties may modify or even act mortis causa)
eliminate it 3. Mixed or that acquired by prescription
 Two classifications based on whether or not impairment of object is
allowed: Art. 564. Usufruct may be constituted on the whole or a part of the
1. Normal, perfect or regular – invovlves non-consumable things fruits of the thing, in favor of one more persons, simultaneously or
which the usufructuary can enjoy without altering the form or successively, and in every case from or to a certain day, purely or
substance, through they may detoriorate or diminish by time or by conditionally. It may also be constituted on a right, provided it is not
use strictly personal or intransmissible. (469)
2. Abnormal, imperfect, irregular or quasi-usufruct – involves things
which would be useless to the usufructuary unless they are Kinds of usufruct defined
consumed or expended, such as money, grain, liquors, etc Usufruct may be
1. As to extent of object
Usufruct Lease a. Total (constituted on the whole of a thing)
Nature of right Real Personal b. Partial (constituted only on a part of a thing)
Creator of right Owner of agent May not be the owner 2. As to number of beneficiaries
a. Simple (only one)
Origin May be by law, by By contract
b. Multiple (several usufructuaries)
contract, by will of
i. Simultaneous, or
testator, or by
ii. Successive
prescription
3. As to effectivity or extinguishment
Extent of enjoyment All the fruits and all the Certain uses only
a. Pure
uses and benefits of the (those stipulated)
b. With a term (may be suspensive or resolutory)
entire property
c. Conditional (may be suspensive or resolutory)
(generally)
4. As to subject matter
Cause More or less passive Active owner or lessor
a. Over things (tangible property)
owner who allows the who makes the lessee
b. Over rights (intangible property which are not
usufructuary to enjoy enjoy
intransmissible)
the object
Repairs and taxes Usufructuary to pay Lessee not generally Art. 565. The rights and obligations of the usufructuary shall be those
under the obligation to provided in the title constituting the usufruct; in default of such title, or
pay taxes or undertake

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in case it is deficient, the provisions contained in the two following a. To be reimbursed for indispensable extraordinary repairs
Chapters shall be observed. (470) 
 made by him in an amount equal to the increase in value
which the property may have acquired by reason of such
 In case of conflict between the will of the person creating the usufruct repairs
and the Civil code, the former prevails. b. To be reimbursed for taxes on the capital advanced by
him, and
CHAPTER TWO c. To be indemnified for damages caused to him by the
RIGHTS OF THE USUFRUCTUARY naked owner.

Art. 566. The usufructuary shall be entitled to all the natural, industrial  The usufructuary is given the right to enjoy the property in usufruct and
and civil fruits of the property in usufruct. With respect to hidden he is entitled to the fruits. The usufructuary has the right to receive all
treasure which may be found on the land or tenement, he shall be the fruits except:
considered a stranger. (471) a. where the usufruct is constituted only on a part of the fruits
of a thing or
Classifications of the rights of the usufructuary b. where there is an agreement to the contrary.
1. As to the thing and its fruits  The naked owner retains and can exercise all the rights as owner over
a. To receive the fruits of the property in usufruct and half of the property limited only by the right of enjoyment of the usufructuary.
the hidden treasure he accidentally finds on the property  Products which when taken from the property diminishes its substance
b. To enjoy any increase which the thing in usufruct may are not to be treated as fruits. They form part of the capital and belong
acquire through accession to the naked owner, and not to the usufructuary in the absence of a
c. To personally enjoy the thing in usufruct or lease it to contrary intent between the parties.
another  The usufructuary is not entitled to any hidden treasure because it’s not
d. To make on the property in usufruct such improvements or considered as ‘fruits’. However, as a stranger, he is entitled to ½ if he is
expenses he may deem property and to remove the the finder.
improvements provided no damage is caused to the
property Art. 567. Natural or industrial fruits growing at the time the usufruct
e. To set-off the improvements he may have made on the begins, belong to the usufructuary.
property against any damage to the same Those growing at the time the usufruct terminates, belong to
f. To retain the thing until he is reimbursed for advances for the owner.
extraordinary expenses and taxes on the capital In the preceding cases, the usufructuary, at the beginning of
2. As to the usufruct itself the usufruct, has no obligation to refund to the owner any expenses
a. To alienate (or mortgage) the right of usufruct except incurred; but the owner shall be obliged to reimburse at the
parental usufruct termination of the usufruct, from the proceeds of the growing fruits,
b. In a usufruct to recover property or a real right, to bring the the ordinary expenses of cultivation, for seed, and other similar
action and to oblige the owner thereof to give him proper expenses incurred by the usufructuary.
authority and necessary proof, and The provisions of this article shall not prejudice the rights of
c. In a usufruct of part of a common property, to exercise all third persons, acquired either at the beginning or at the termination of
the rights pertaining to the co-owner with respect to the the usufruct. (472)
administration and collection of fruits or interests from the
property Right of the usufructuary to pending natural and industrial fruits
3. As to advances and damages This article does not apply to civil fruits.

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Usufruct constituted on certain rights

 For fruits growing at the beginning of usufruct, they belong to the  Every benefit or payment shall be considered and distributed as civil
usufructuary who is not bound to refund to the owner the expenses of fruit of such right.
cultivation and production incurred.  Payment and benefits that accrue after the termination of the usufruct
o However, in case the expenses were incurred by innocent third belong to the owner.
persons, the usufructuary under Art 443, pursuant to the last  The date when the benefits accrue determines whether they should
paragraph of Art 567, has the obligation to pay the expenses belong to the usufructuary or to the owner. Art 570 applies whether or
made. not the date of distribution of benefits is fixed.
 For fruits growing at the termination of the usufruct, they belong to the
owner but he is bound to reimburse the usufructuary the ordinary Case doctrine
cultivation expenses out of the fruits received.  A stock dividend is considered civil fruit and belongs to the usufructuary.
 Manresa opines that if at the termination of the usufruct, force majeure (Bachrach v Seifert)
should prevent the usufructuary from gathering the fruits, said fruits
shall belong to him and not the naked owner.
Art. 571. The usufructuary shall have the right to enjoy any increase
Art. 568. If the usufructuary has leased the lands or tenements given in which the thing in usufruct may acquire through accession, the
usufruct, and the usufruct should expire before the termination of the servitudes established in its favor, and, in general, all the benefits
lease, he or his heirs and successors shall receive only the inherent therein. (479)
proportionate share of the rent that must be paid by the lessee. (473)
Extent of rights of usufructuary
Art. 569. Civil fruits are deemed to accrue daily, and belong to the  The usufructuary is generally entitled to all the benefits that the thing in
usufructuary in proportion to the time the usufruct may last. (474) usufruct can give including any increase by accession and servitudes
established in his favor.
Lease by the usufrucutary  Reason is that usufruct covers the entire jus fruendi and jus utendi.
 The usufructuary may lease the property in usufruct to another.
 If the usufrcut should expire before the termination of the lease, the
usufructuary or his heirs and successors are entitled only to the rents Art. 572. The usufructuary may personally enjoy the thing in usufruct,
corresponding to the duration of the usufruct. The rents for the lease it to another, or alienate his right of usufruct, even by a
remaining period of the lease belong to the owner. gratuitous title; but all the contracts he may enter into as such
usufructuary shall terminate upon the expiration of the usufruct,
Art. 570. Whenever a usufruct is constituted on the right to receive a saving leases of rural lands, which shall be considered as subsisting
rent or periodical pension, whether in money or in fruits, or in the during the agricultural year. (480)
interest on bonds or securities payable to bearer, each payment due
shall be considered as the proceeds or fruits of such right. Transactions by the usufructuary
Whenever it consists in the enjoyment of benefits accruing  with respect to the thing in usufruct, he may lease it even without the
from a participation in any industrial or commercial enterprise, the date owner’s consent but not being the owner, the usufructuary cannot
of the distribution of which is not fixed, such benefits shall have the alienate, pledge or mortgage the thing itself. He may sell future crops
same character. subject to the rule that those ungathered at the time when the usufruct
In either case they shall be distributed as civil fruits, and shall terminates belong to the owner.
be applied in the manner prescribed in the preceding article. (475)

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 when the things given in usufruct cannot be used without being  The usufructuary is not responsible for the deterioration due to wear and
consumed or were appraised when delivered, the usufructuary may tear nor is he required to make any repairs to restore it to its formal
dispose of them. condition. He needs only to return the thing at the termination of the
 With respect to the right of usufruct, since the usufructuary is the owner usufruct in the condition it may be at that time.
of the right itselt, he may alienate, pledge or mortgage it, even by  The usufructuary is liable for damage suffered by the thing by reason of
gratuitous title. his fraud or negligence although such liability may be set-off against the
o But the legal usufruct of the parent over his or her improvements he may have made on the property.
unemancipated children cannot be alienated, pledged, or  The usufructuary does not answer for deterioration due to a fortuitous
mortgaged for the right is personal and intransmissible event. He is, however, obligated to make the ordinary repairs needed by
burdened as it is by important obligations of the parent for the the thing.
benefit of the children.
o A usufruct given in consideration of the person of the Art. 574. Whenever the usufruct includes things which cannot be used
usufructuary to last during his lifetime is also personal, and without being consumed, the usufructuary shall have the right to make
therefore, intransmissible. use of them under the obligation of paying their appraised value at the
o As a rule, all contracts entered into by the usufructuary shall termination of the usufruct, if they were appraised when delivered. In
terminate upon the expiration of the usufruct or earlier, except case they were not appraised, he shall have the right to return at the
rural leases which continue during the agricultural year. same quantity and quality, or pay their current price at the time the
usufruct ceases. (482)
Case doctrine
 A usufructuary of rents, as a corollary to the right to all the rents, to Usufruct on consumable things
choose the tenant, and to fix the amount of the rent, necessarily has the  This is another instance of abnormal usufruct because the thing in
right to choose himself as the tenant, provided that the obligations he usufruct cannot be used without being consumed, like money (but that’s
has assumed towards the owner of the property are fulfilled. (Fabie v really a simple loan, where the usufructuary can deal with the money as
David) owner.)
 The usufructuary shall have the right to make use of the consumable
Art. 573. Whenever the usufruct includes things which, without being thing.
consumed, gradually deteriorate through wear and tear, the  At the termination of the usufruct, he must:
usufructuary shall have the right to make use thereof in accordance 1. Pay its appraised valuel or
with the purpose for which they are intended, and shall not be obliged 2. If there was no appraisal made, either:
to return them at the termination of the usufruct except in their a. Return the same quantity and quality, or
condition at that time; but he shall be obliged to indemnify the owner b. Pay its current price at such termination.
for any deterioration they may have suffered by reason of his fraud or
negligence. (481) 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
Usufruct on things which gradually deteriorate accident, under the obligation to replace them with new plants. (483a)
 This article gives an instance of abnormal usufruct because in the
enjoyment of the property the usufructuary cannot preserve its form or Art. 576. If in consequence of a calamity or extraordinary event, the
substance. trees or shrubs shall have disappeared in such considerable number
 Here the thing gradually deteriorates through wear and tear or normal that it would not be possible or it would be too burdensome to replace
use. them, the usufructuary may leave the dead, fallen or uprooted trunks at

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the disposal of the owner, and demand that the latter remove them and  The usufructuary cannot cut down trees other than as mentioned above
clear the land. (484a) unless it be for repair or improvement of the things in usufruct but in
such case, the owner must be informed of the necessity for the work.
Usufruct on fruit-bearing trees and shrubs  In nurseries, the usufructuary may make the necessary thinnings in
 The usufructuary is given the right to make use of dead trunks and order that the remaining trees may properly grow.
those cut-off or uprooted by accident but he must place them with new
plants because he has the obligation to preserve the form or substance Art. 578. The usufructuary of an action to recover real property or a real
of the property in usufruct. right, or any movable property, has the right to bring the action and to
 Of course, the usufructuary has no obligation to replace with new plants, oblige the owner thereof to give him the authority for this purpose and
the dead trees or shrubs already existing at the beginning of the to furnish him whatever proof he may have. If in consequence of the
usufruct. enforcement of the action he acquires the thing claimed, the usufruct
 Under article 576, the usufructuary is not responsible for dead, fallen or shall be limited to the fruits, the dominion remaining with the owner.
uprooted trunks caused by calamity or extra-ordinary events. If it would (486)
not be possible or be too burdensome to replace them, he may demand
that the owner remove them and clear the land. He may use the trunks Usufruct of judicial action to recover
but he is required to replace them with new plants under Article 575.  This article applies if the purpose of the action is to recover real property
 If replacing the trunks could not be too burdensome, the usufructuary or personal property or real right over real or personal property
must replace them, whether or not he makes use of them.  The action may be instituted in the name of the usufructuary (vs an
agent who institutes the action in the name of the principal)
Art. 577. The usufructuary of woodland may enjoy all the benefits  The usufructuary may oblige the owner to give him the necessary
which it may produce according to its nature. authority to bring the action
If the woodland is a copse or consists of timber for building,  In case of favorable judgment, the usufruct shall be limited to the fruits,
the usufructuary may do such ordinary cutting or felling as the owner with the naked ownership belonging to the owner. With the termination
was in the habit of doing, and in default of this, he may do so in of the case, the usufruct of the action comes to an end.
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 Art. 579. The usufructuary may make on the property held in usufruct
manner as not to prejudice the preservation of the land. such useful improvements or expenses for mere pleasure as he may
In nurseries, the usufructuary may make the necessary deem proper, provided he does not alter its form or substance; but he
thinnings in order that the remaining trees may properly grow. shall have no right to be indemnified therefor. He may, however,
With the exception of the provisions of the preceding remove such improvements, should it be possible to do so without
paragraphs, the usufructuary cannot cut down trees unless it be to damage to the property. (487)
restore or improve some of the things in usufruct, and in such case
shall first inform the owner of the necessity for the work. (485) What happens when a usufructuary makes useful or luxurious expenses?
 The usufructuary has the right to make improvements, useful or
Usufruct on woodland and nurseries luxurious, as he may deem proper.
 The woodland may be a copse or may consist of timber for building.  What are the rules?
 The usufructuary may fell or cut trees as the owner was in the habit of 1. He must not alter the form or substance of the property,
doing or in accordance with the customs of the place as to manner, 2. He may remove the improvements only if it is possible to do so
amount and season. In any case, he must not prejudice the without damage to the property
preservation of the land.

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3. He has no right to be indemnified for the improvements if he does  If the value of the improvements exceeds the damage, he may remove
not exercise his right to remove the portion of the improvements representing the excess in value if this
o He cannot invoke the rights of a possessor in good faith in can be done without injury to the property, otherwise, the excess in
the concept of owner value accrues to the owner.
4. If the improvements cannot be removed without damage, he may
set-off the same against any damage caused by him to the property Art. 581. The owner of property the usufruct of which is held by
(Art 580) another, may alienate it, but he cannot alter its form or substance, or
5. If the usufructuary does not wish to exercise his right of removal, do anything thereon which may be prejudicial to the usufructuary.
the owner cannot compel him to remove the improvements (489)
6. If the usufructuary wishes to exercise his right of removal, the
owner cannot prevent him by offering to reimburse him Rights and obligations of the naked owner
7. The usufructuary’s right to remove the improvements includes the  The naked owner may alienate the property in usufruct because the title
right to destroy them provided no damage is caused to the property (dominium directum) remains vested in him.
8. The right to remove is enforceable only against the owner, but not  He may construct works, make improvements, or make new plantings
against a purchaser in good faith to whom a clean title has been on the property in usufruct.
issued  The alienation by the naked owner cannot affect the usufruct which is
o Right to remove the improvements should be annotated registered or known to the transferee.
on the certificate of title, so that it can be enforced against  The naked owner, however, cannot:
third parties o alter the form or substance of the property, or
o do anything thereon which may cause a diminution in the value
Case doctrines of the usufruct, or
 By express provision of law, the usufructuaries do not have the right to o be prejudicial to the rights of the usufructuary,
reimbursement for improvements they may have introduced on the  otherwise, he shall be liable for damages.
property. If the rule on reimbursement or indemnity were otherwise, then  The naked owner must:
the usufructuary might improve the owner out of his property. (Moralidad o Respect leases of rural lands by the usufructuary for the
v Pernes) balance of the agricultural year (Art 572)
o Reimburse him for advances made for extraordinary repairs
(Art 594), and
o Reimburse him for taxes on the capital (Art 597)
Art. 580. The usufructuary may set off the improvements he may have
made on the property against any damage to the same. (488)
Art. 582. The usufructuary of a part of a thing held in common shall
Right to set-off improvements exercise all the rights pertaining to the owner thereof with respect to
 This article presupposes that the administration and the collection of fruits or interest. Should the
o the improvements have increased the value of the property co-ownership cease by reason of the division of the thing held in
and common, the usufruct of the part allotted to the co-owner shall belong
o the damage to the same was caused through the fault of the to the usufructuary. (490) 

usufructuary.
 If the damage exceeds the value of the improvements, the usufructuary Usufruct of part of common property
is liable for the difference as indemnity  In case a co-owner gives the usufruct of his share to a person, the
usufructuary shall exercise all the rights pertaining to the co-owner

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regarding the administration and the collection of the fruits or interest e. To permit works and improvements by the naked owner
from the property not prejudicial to the usufruct (Art 595)
 The usufructuary shall be bound by the partition made by the owners of f. To pay annual taxes and charges on the fruits (Art 596)
the undivided property although he took no part in the partition but the g. To pay interest on taxes on capital paid by the naked
naked owner to whom the part held in usufruct has been allotted must owner (Art 597)
respect the usufruct. h. To pay debts when the usufruct is constituted on the
whole of a patrimony (Art 598)
Case doctrine i. To secure the naked owner’s or court’s approval to collect
 A partition made by the owners of land is binding upon a person who credits in certain cases (Art 599)
has a usufructuary right in an undivided part of the land, although the j. To notify the owner of any prejudicial act committed by
latter took no part in the partition of the property. third persons (Art 601)
 The right of the usufructuary is not affected by the division but it is k. To pay for court expenses and costs regarding usufruct
limited to the fruits of the said part allotted to the co-owner. (Pichay v (Art 602)
Querol) 3. Those at the termination of the usufruct
a. To return the thing in usufruct to the naked owner unless
CHAPTER 3 there is a right of retention (Art 612)
b. To pay legal interest for the time that the usufruct lasts, on
OBLIGATIONS OF THE USUFRUCTUARY the amount spent by the owner for extraordinary repairs
(Art 594) and the proper interest on the sums paid as
Art. 583. The usufructuary, before entering upon the enjoyment of the taxes by the owner (Art 597), and
property, is obliged: c. To indemnify the naked owner for any losses due to his
(1) To make, after notice to the owner or his legitimate representative, negligence or of his transferees. (Art 589-590)
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 Obligation to make an inventory
upon him in accordance with this Chapter. (491) 1. Previous notice to be given.
 In the making of the inventory, the concurrence of the naked owner
Classifications of obligations of the usufructuary
is not required.
1. Those before the usufruct begins
 Note that the law says ‘legitimate’, not legal representative
a. Make an inventory of the property, which shall contain an
2. Expenses of inventory
appraisal of the movables and a description of the
 Borne by the usufructuary
immovables
3. Form of inventory
b. Give security
2. Those during the usufruct  Article 583 does not provide for the form of inventory. It may be
a. Take care of the property (Art 589) contained in a private document.
b. To replace with the young thereof animals that die or are  However, a public instrument is necessary to affect third persons
lost in certain cases when the usufruct is constituted on when there are immovables.
flock or herd of livestock (Art 591) 4. Contents of inventory
c. To make ordinary repairs (Art 592, par 1)  The inventory shall contain
d. To notify the owner of urgent extraordinary repairs (Art o an itemized list and
593) o an appraisal of the movables and
o description of the condition of the immovables.

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 The movables must be appraised because they are subject to o Is frequently true in usufructs constituted by a last will and
greater danger of loss and deterioration. testament or by a deed of donation in view of the trust
 Both kinds must be properly identified. which the testator or donor has in the usufructuary
3. Where the usufructuary asks that he be exempted from the
Failure to make an inventory? Usufruct not extinguished, maybe owner can obligation and no one will be injured thereby.
demand it. o The usufructuary may apply to the courts for relief in case
the naked owner refuses to grant the exemption where, for
Are there instances where obligation to make inventory is excused? Yes. example, the usufruct is over the right to receive a periodic
See Art 585. income or pension

Obligation to give security Art. 586. Should the usufructuary fail to give security in the cases in
 The purpose of giving security is to insure the fulfillment by the which he is bound to give it, the owner may demand that the
usufructuary of the obligations imposed upon him immovables be placed under administration, that the movables be
 Law does not specify the kind of security that should be given sold, that the public bonds, instruments of credit payable to order or to
bearer be converted into registered certificates or deposited in a bank
Failure to give security? See Art 586. 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
Art. 584. The provisions of No. 2 of the preceding article shall not apply securities.
to the donor who has reserved the usufruct of the property donated, or The interest on the proceeds of the sale of the movables and
to the parents who are usufructuaries of their children's property, that on public securities and bonds, and the proceeds of the property
except when the parents contract a second marriage. (492a) placed under administration, shall belong to the usufructuary.
Furthermore, the owner may, if he so prefers, until the
When obligation to give security not applicable usufructuary gives security or is excused from so doing, retain in his
 This article contains the legal exceptions to the obligation of the possession the property in usufruct as administrator, subject to the
usufructuary to give security in two cases: obligation to deliver to the usufructuary the net proceeds thereof, after
o To the donor who has reserved the usufruct of the property deducting the sums which may be agreed upon or judicially allowed
donated him for such administration. (494)
o To the parents who are usufructuaries of their children’s
parents, except when the parents contract a second marriage Effects of failure to give security, when required
 On rights of owners: Where the obligation to give security or to file a
Art. 585. The usufructuary, whatever may be the title of the usufruct, bond is not excused or exempted, the failure of the usufructuary to
may be excused from the obligation of making an inventory or of comply with the same entitle the naked owner for his protection
giving security, when no one will be injured thereby. (493) o to demand that immovables be placed under administration or
receivership,
When obligation to make inventory or to give security excused o movables be sold,
 The usufructuary may be excused from the obligation in the following o instruments of credit be registered or deposited in a bank or
cases: public institution
1. Where the naked owner renounces or waives his right to the o capital or sums in cash and the proceeds of the sale of the
inventory or security movable be invested in safe securities.
2. Where the title constituting the usufruct relieves the usufructuary  On rights of usufructuary: Until he gives the proper security, the
from the obligation; usufructuary cannot enter upon the possession and enjoyment of the

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

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

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 It is also optional upon the owner or the usufructuary was not entitled to the rents of the building. The usufructuary’s
to make the repairs or not. If the owner should make argument that Article 571 was applicable (right to enjoy any increase by
the repairs, they shall be at his expense. accession) was wrong because such accession is limited to buildings
 If made by the usufructuary, he shall have the right to erected on the land of another and does not contemplate a situation
demand of the owner the payment of the increase in where the owner himself erected the buildings. (Gaboya v Cui)
value of the immovable by reason of the repairs at the  However, the usufructuary was entitled to reasonable rental for the
termination of the usufruct provided the following are portion of the land occupied by the building because the construction of
present: the building had reduced the area of the land and to that extent
 He notified the owner of the urgency of the diminished the value of the usufruct. However, like said above, since the
repairs usufruct was reserved over the land alone, the usufructuary was not
 The owner failed to make the repairs entitled to the rents of the building itslef.
 The repair is necessary for the preservation
of the property Art. 596. The payment of annual charges and taxes and of those
 The usufructuary has the right of retention even after the termination of considered as a lien on the fruits, shall be at the expense of the
the usufruct until he is reimbursed for the increase in value of the usufructuary for all the time that the usufruct lasts. (504)
property caused by extraordinary repairs for preservation (Art 612)
o Increase in value is the difference between the value of the Art. 597. The taxes which, during the usufruct, may be imposed directly
property before the repairs were made and the value after the on the capital, shall be at the expense of the owner.
repairs were completed 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,
Art. 595. The owner may construct any works and make any if the said sums have been advanced by the usufructuary, he shall
improvements of which the immovable in usufruct is susceptible, or recover the amount thereof at the termination of the usufruct. (505)
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 Liability for charges and taxes
right of the usufructuary. (503)  Usufructuary must pay the annual charges and taxes which are
imposed, and, therefore, are a lien upon the fruits during the term of the
Construction, improvements and plantings by owner usufruct.
 The owner has the right to do the works mentioned provided the value  Are real property taxes imposed on the fruits or on the capital? On the
of the usufruct is not prejudiced capital.
 Any increase in the value of the usufruct due to the improvements will  Taxies levied on the capital must be paid by the naked owner but he
inure to the benefit of the usufructuary for he is entitled to the use and has right to demand from the usufructuary the proper interest on the
fruits of the property sums paid.
 The owner has no right to demand legal interest on his expenses  If the taxes were advanced voluntarily by the usufructuary he is entitled
because they were voluntarily incurred by him to be reimbursed therefor at the termination of the usufruct with the right
 The owner may even alienate his property or make changes thereon as of retention until paid.
long as he doesn’t impair the right of the usufructuary.
Art. 598. If the usufruct be constituted on the whole of a patrimony, and
Case doctrine if at the time of its constitution the owner has debts, the provisions of
 In a case where the usufruct was over the land, and the owner built Articles 758 and 759 relating to donations shall be applied, both with
buildings on the land, and the usufructuary was demanding the rents of respect to the maintenance of the usufruct and to the obligation of the
the buildings as part of the usufruct, the Court held that the usufructuary usufructuary to pay such debts.

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The same rule shall be applied in case the owner is obliged, at the time o he has been excused from giving security,
the usufruct is constituted, to make periodical payments, even if there  he may collect the credits and invest the capital which
should be no known capital. (506) must be at interest, with the consent of the naked
owner or approval of the court.
Where usufruct convers entire patrimony  The credits which constitute the capital belong to the
 Art 598 applies to a naked owner but the usufructuary has the right to use
o universal usufruct or one which covers the entire patrimony of and invest them, and to receive the interest therefrom.
the owner, and  In every case, the investment of the capital must be with sufficient
o at the time of its constitution, by donation or any other acts security to preserve its integrity
inter vivos, he has debts, whether secured or unsecured, or is
bound to make periodical payments even if, in the latter case, Art. 600. The usufructuary of a mortgaged immovable shall not be
there should be no known capital obliged to pay the debt for the security of which the mortgage was
 The liability of the usufructuary for the debts of the naked owner is the constituted.
same as that of the donee under 758 and 759 Should the immovable be attached or sold judicially for the
o when there is a stipulation for the payment by the usufructuary payment of the debt, the owner shall be liable to the usufructuary for
of the debts of the owner, the former is liable only for the debts whatever the latter may lose by reason thereof. (509)
contracted by the latter before the constitution of the usufruct
o in the absence of stipulation, the usufructuary shall be Usufruct of mortgaged immovables
responsible only when the usufruct was created in fraud of  The usufruct is particular, constituted by will or by acts inter vivos,
creditors whether by onerous or gratuitous title
 If the usufruct is universal, the liability of the usufructuary to pay for the
Art. 599. The usufructuary may claim any matured credits which form a mortgage is governed by Art 598.
part of the usufruct if he has given or gives the proper security. If he  The owner may validly mortgage the property in favor of a third person.
has been excused from giving security or has been able to give it, or if The debt must be paid by the owner.
that given is not sufficient, he shall need the authorization of the  The usufructuary may mortgage his right of usufruct which is a real right
owner, or of the court in default thereof, to collect such credits.
The usufructuary who has given security may use the capital Art. 601. The usufructuary shall be obliged to notify the owner of any
he has collected in any manner he may deem proper. The usufructuary act of a third person, of which he may have knowledge, that may be
who has not given security shall invest the said capital at interest upon prejudicial to the rights of ownership, and he shall be liable should he
agreement with the owner; in default of such agreement, with judicial not do so, for damages, as if they had been caused through his own
authorization; and, in every case, with security sufficient to preserve fault. (511)
the integrity of the capital in usufruct. (507)
Obligation to notify owner of prejudicial acts by third persons
Usufruct of matured credits  Art 601 speaks of any act which may be prejudicial to the ‘rights of
 if the usufructuary has given sufficient security, he may claim matured ownership’, not merely of the ‘naked ownership’
credits forming part of the usufruct, collect them, and use and invest,  A usufructuary has the duty to protect the owner’s interest
with or without interest, the capital he has collected, in any manner he  However, where the act affects possession, although this is in the
may deem proper usufructuary, he should notify the owner because the latter has an
 if he interest in defending it.
o has NOT given security, or  The usufructuary is also obliged to notify the owner before making an
o that given is not sufficient, or inventory of the property and of the need of urgent repairs.

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6. Termination of right of owner (refers to the right of the person

Case doctrine constituting the usufruct, not to a condition imposed upon the usufruct
 A usufructuary has the duty to protect the owner’s interests – a usufruct itself)
gives a right to enjoy the property of another with the obligation of 7. By prescription (acquisitive prescription by the use of a third person, not
preserving its form and substance, unless the title constituting it or the the use by the usufructuary)
law otherwise provides. (NHA v CA) 8. Other causes (annulment or rescission of the contract)

Art. 602. The expenses, costs and liabilities in suits brought with Case doctrines
regard to the usufruct shall be borne by the usufructuary. (512) 
  Although the owner expressly authorized the usufructuaries to occupy a
portion of her property “as long as they like”, the usufruct may be
Obligation to pay for judicial expenses and cost considered terminated by other modes or instances of extinguishment,
 Since they are in connection with litigation over possession affecting the such as the fulfillment of any resolutory condition provided in the
rights of the usufructuary, it is just that they are borne by him. document creating the usufruct. (Moralidad v Spouses Pernez)
 If the litigation involves only the naked ownership, the owner should  The 30-year limitation on usufruct under the Old Spanish Civil Code
assume them. does not apply to trusts. (Palad v Governor of Quezon Province)

Art. 604. If the thing given in usufruct should be lost only in part, the
CHAPTER 4 right shall continue on the remaining part. (514)
EXTINGUISHMENT OF USUFRUCT
 To extinguish a usufruct, the loss must be total, except as provided in
Art. 603. Usufruct is extinguished: Art 607 to 609
(1) By the death of the usufructuary, unless a contrary  If the loss in only partial, the usufruct continues with the remaining part.
intention clearly appears; But if the partial loss may be so important as to be considered total loss,
(2) By the expiration of the period for which it was constituted, the courts shall determine.
or by the fulfillment of any resolutory condition provided in the title
creating the usufruct; 
 Art. 605. Usufruct cannot be constituted in favor of a town, corporation,
(3) By merger of the usufruct and ownership in the same or association for more than fifty years. If it has been constituted, and
person; 
 before the expiration of such period the town is abandoned, or the
(4) By renunciation of the usufructuary; corporation or association is dissolved, the usufruct shall be
(5) By the total loss of the thing in usufruct; extinguished by reason thereof. (515a)
(6) By the termination of the right of the person constituting
the usufruct;  The ordinary life of a corporation is 50 years. Unlike a natural person, a
(7) By prescription. (513a) corporation or association may be extended indefinitely. Public policy
frowns upon perpetual usufruct.
How is a usufruct extinguished?  The fifty-year limitation does not apply to trusts.
1. Death of the usufructuary (unless contrary intention clearly appears)
2. Expiration of period or fulfillment of condition Art. 606. A usufruct granted for the time that may elapse before a third
3. By merger of the usufruct and ownership in the same person person attains a certain age, shall subsist for the number of years
4. By renunciation of the usufructuary specified, even if the third person should die before the period expires,
5. By the total loss of the thing unless such usufruct has been expressly granted only in consideration
of the existence of such person. (516)

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 The only right of the usufructuary is to receive during the continuance of

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

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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 Usufruct in favor of several persons
the usufruct. If the owner chooses the latter alternative, he shall give  Usufruct is extinguished by the death of the usufructuary unless a
security for the payment of the interest. (519) contrary intention appears.
 The usufruct is not extinguished until the death of the last survivor. As
Art. 610. A usufruct is not extinguished by bad use of the thing in the usufruct continues, the rights of any usufructuary who dies shall
usufruct; but if the abuse should cause considerable injury to the accrue to the surviving usufructuaries.
owner, the latter may demand that the thing be delivered to him, o The only exception is when the title constituting the usufruct
binding himself to pay annually to the usufructuary the net proceeds of provides otherwise as where the usufruct is constituted in a list
the same, after deducting the expenses and the compensation which and will and testament and the testator makes a contrary
may be allowed him for its administration. (520) provision.

Expropriation of thing in usufruct Art. 612. Upon the termination of the usufruct, the thing in usufruct
 The expropriation of the thing does not extinguish the usufruct. shall be delivered to the owner, without prejudice to the right of
 Article 609 allows the substitution of the thing by an equivalent thing. retention pertaining to the usufructuary or his heirs for taxes and
 If the thing in usufruct is expropriated for public use, the naked owner is extraordinary expenses which should be reimbursed. After the delivery
given the option: has been made, the security or mortgage shall be cancelled. (522a)
o to replace it with another thing of the same value and of
similar conditions, or Obligation of usufructuary to return the thing upon termination of the usufruct
o to pay to the usufructuary the legal interest on the amount of  Upon the termination of the usufruct, it is the duty of the usufructuary to
indemnity for the whole period of the usufruct. return the property to the naked owner.
 In the latter case, the owner shall give security for the  The usufructuary is expressly granted the right of retention until he is
payment of the interest. reimbursed for the amount of taxes levied on the capital and for the
increase in value caused by extraordinary repairs.
Effect of bad use  He has no right to reimbursement for useful improvements.
 Bad use of the thing in usufruct does not extinguish the right of the
usufructuary whether there is security or not. The usufruct continues.
 But if the bad use causes considerable injury to the owner, not to the
thing itself, the owner is given the right to demand that the thing be TITLE VII – EASEMENTS OR SERVITUDES
delivered to him, binding himself to pay annually to the usufructuary the CHAPTER ONE
net proceeds of the same, after deducting the expenses and the EASEMENTS IN GENERAL
compensation which may be allowed him for its administration.
 This is true where the usufructuary has not given any security or the SECTION ONE – DIFFERENT KINDS OF EASEMENTS
security given is insufficient especially if the owner has no property.
 The second part of the provision can hardly apply where there is Art. 613. An easement or servitude is an encumbrance imposed upon
sufficient security for “no considerable injury” could possible be caused an immovable for the benefit of another immovable belonging to a
to the owner. different owner.
The immovable in favor of which the easement is established
Art. 611. A usufruct constituted in favor of several persons living at the is called the dominant estate; that which is subject thereto, the servient
time of its constitution shall not be extinguished until death of the last estate. (530)
survivor. (521)

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Easement or servitude defined

 Easement or servitude has been defined as a “real right constituted on Easement established only on immovable
another’s property, corporeal and immovable, by virtue of which the  Easements cannot be imposed on personal property but only on
owner of the same has to abstain from doing or to allow somebody else immovable (which must be understood in its common and not in its legal
to do something on his property for the benefit of another thing or sense).
person.”  What the law treats of are not immovables as defined by the Civil Code
 The definition in this article is not complete, being limited to real but only those which are so by their nature (are really incapable of being
easement. moved) such as lands, roads, buildings, and constructions adhering to
 In view of the next article which refers to personal easement, the term the soil.
may be defined as an encumbrance imposed upon an immovable for
the benefit of another immovable belonging to a different owner or for Nature of benefit to dominant estate
the benefit of a community or one or more persons to whom the  Easement can exist only when the servient and dominant estates
encumbered estate does not belong by virtue of which the owner is belong to different owners.
obliged to abstain from doing or to permit a certain thing to be done on  There can be no easement without a burden on an estate for the benefit
his estate (whew.) of another immovable belonging to a different owner or of a person or
group of persons.
Easement and servitude distinguished  The dominant estate cannot be the servient estate at the same time.
1. It is said that easement refers to the right enjoyed by one, and  It is not essential that the benefit be very great, it being sufficient that
servitude, the burden imposed upon another. there is a determinate use or utility in favor of a dominant estate over an
2. The two terms are used synonymously in the Civil Code although it is estate belonging to another.
more partial to easement.  The important thing is that it exists and can be exercised.
 On the other hand, the benefit should not be so great as to be
Characteristics of easement inconsistent with the general right of ownership of a person, amounting
1. It is a real right but will affect third persons only when duly registered; to a taking of his property.
2. It is enjoyed over another immovable, never on one’s own property;
3. It involves two neighboring estates, the dominant to which a right Easement Lease
belongs and the servient upon which an obligation rests; Real right, whether registered or not, Real right only when it is registered,
4. It is inseparable from the estate to which it is attached and, therefore, and whether it is real or personal or when its subject is real property
cannot be alienated independently of the estate (Art 617) and the duration exceeds one year
5. It is indivisible for it is not affected by the division of the estate between
Imposed only on real property May involve real or personal
two or more persons (Art 618)
property
6. It is a right limited by the needs of the dominant owner or estate, without
Limited right to the use of real Limited right to both the possession
possession;
property of another but without the and use of another’s property
7. It cannot consist in the doing of an act unless the act is accessory in
right of possession (“without any (“exclusive possession”)
relation to a real easement; and
exclusive possession or occupation”)
8. It is a limitation on the servient owner’s rights of ownership for the
benefit of the dominant owner; and therefore, it is not presumed.
Easement Usufruct
 Easement gives the holder an incorporeal right on the land but grants Imposed only on real property May involve real or personal
no title thereto. Therefore, an acknowledgment of the easement is an property
admission that the property belongs to another. Limited to a particular or specific use Includes all the uses and fruits of the

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of the servient estate property 5. As to the duty of servient owner

Non-possessory right over an Right of possession in an immovable a. Positive – see Article 616; or
immovable or movable b. negative
Not extinguished by the death of the As a rule, extinguished by the death
dominant owner of the usufructuary Real and personal servitudes
 Both usufruct and easement are real rights, whether registered or not,  A servitude may be established for the benefit:
and are transmissible. 1. of a particular estate and consequently, for its owner; (real or
predial)
Case doctrines 2. of a person or group of persons without being the owner or owners
 The power of eminent omain encompasses not only the taking of title to of a dominant estate. (personal)
and possession of the expropriated property but likewise covers even  Unlike a real easement, personal easement does not require two
the imposition of a mere burden upon the owner of the condemned immovables. An example of a personal easement is a right of way
property. Where the nature of the easement practically deprives the granted to certain persons and their family, friends, servants, and jeeps.
owners of the property’s normal beneficial use, notwithstanding the fact The servitude is for the benefit alone of the persons enumerated and
that the expropriator only occupies the sub-terrain portion, it is liable to not a predial servitude that inures to the benefit of whoever owns the
pay not merely an easement fee but rather the full compensation for dominant estate. Hence, the owner of the servient estate may refuse to
land. (NPC v Ibrahim) extend the said easement to the successors-in-interest of the persons
for whose benefit the servitude exists. (Jabonete v Monteverde)
Art. 614. Servitudes may also be established for the benefit of a
community, or of one or more persons to whom the encumbered estate Public and private easements
does not belong. (531)  Personal easements may be:
1. Public, if it is vested in the public at large or in some class of
Classifications of easement indeterminate individuals (like the right of the public to a highway
1. As to recipient of benefit over a land of private ownership)
a. Real – when the easement is in favor of another 2. Private, if it is vested in a determinate individual or certain persons
immovable (Art 613); or (like a right of way vested in the owner of one parcel of land over an
b. Personal – when it is in favor of a community or of one adjoining parcel of land)
more persons (Art 614). Thus, it maybe public or private.
2. As to its source Case doctrines
a. Voluntary – when the easement is established by the will  When a person is allowed to construct his house on the land of another
or agreement of the parties or by a testator (Art 619); to facilitate his gathering of fruits, this would be in the nature of a
b. Legal – when it is imposed by law either for public use or personal easement under Article 614. (Alcantara v Reta)
in the interest of private persons (Art 637-687); or
c. Mixed – when it is created partly by will or agreement and Art. 615. Easements may be continuous or discontinuous, apparent or
partly by law. non-apparent.
3. As to its exercise Continuous easements are those the use of which is or may be
a. Continuous – see Article 615; or incessant, without the intervention of any act of man.
b. Discontinuous Discontinuous easements are those which are used at
4. As to whether or not its existence is indicated intervals and depend upon the acts of man.
a. Apparent; or
b. Non-apparent

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Apparent easements are those which are made known and are  An example of a non-apparent easement is a right of way when there is
continually kept in view by external signs that reveal the use and no indication of its existence.
enjoyment of the same.  A right of way is apparent when there is a visible road or path to show
Nonapparent easements are those which show no external its exercise.
indication of their existence. (532)  In general, negative easements are non-apparent.

Continuous and discontinuous easements Art. 616. Easements are also positive or negative.
 For an easement to be continuous, it is not necessary that the use be A positive easement is one which imposes upon the owner of
incessant; it is sufficient that the use may be so. the servient estate the obligation of allowing something to be done or
o Examples are the right to support a beam on another’s wall of doing it himself, and a negative easement, that which prohibits the
which really exists continuously and the right of aqueduct owner of the servient estate from doing something which he could
which may be used only on certain days depending on the lawfully do if the easement did not exist. (533)
need for water but which is continuous since its use does not
depend upon the intervention of man. Positive and negative easements
 An example of discontinuous servitude is the right of way which is used  A positive easement is one which imposes upon the owner of the
at intervals because it is physically impossible that man shall continually servient estate the obligation of allowing something to be done or of
poass over the way. doing it himself.
 The easement itself, whether continuous or discontinuous, exists o Example: the easement of which the right of way which
continuously whether it is being used or not, but its exercise may be imposes upon the owner of the servient estate the duty to allow
continuous or discontinuous, or there may be no exercise at all. the use of said way.
 The distinction lies in the fact that in continuous easements, the  A negative easement is that which prohibits the owner of the servient
exercise or enjoyment can be had without the intervention of man while estate from doing something which he could lawfully do if the easement
in discontinuous easements, such exercise or enjoyment requires the did not exist.
intervention of man. o Example: easement of light and view whereby the owner of the
 In both easements, the benefit and burden exists from the moment the servient estate is prohibited from obstructing the passage of
easements are created. light. It may also be positive depending upon the manner by
Case doctrine which it is exercised.
 Easements are either continuous or discontinuous according to the  When the opening or window is made on another’s wall (wall of servient
manner they are exercisd, not according to the presence of apparent estate) or on a party wall, the easement acquired is positive because
signs or physical indications of the existence of such easements. Thus, the owner of the wall allows the servitude to burden his wall.
an easement is continuous if its use is, or may be, incessant without the  If the window is through one’s own wall (wall of the dominant estate)
intervention of any act of man, like the easement of drainage; and it is which does not extend over another’s property (servient estate), the
discontinuous if it is used at intervals and depends on the act of man, easement is negative.
like the easement of right of way. (Bogo-Medellin v CA)
Case doctrines
Apparent and non-apparent easements  Restrictive covenants are not, strictly speaking synonymous with
 For an apparent easement, it is not necessary that its sign be seen; it is easements, but a case of servitudes or burdens, sometimes
sufficient if it may be seen or known on inspection. characterized to be negative easements or reciprocal negative
o The sign or signs may be encountered in the dominant or easements. Negative easement is the most common easement created
servient estate, according to the circumstances. by covenant or agreement whose effect is to preclude the owner of the

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land from doing an act, which, if no easement existed, he would be  A vendee on real property on which a servitude or an easement of right
entitled to do. (Fajardo v Freedom to Build) of way exists does not acquire the right to close that servitude to
 Courts generally view restrictive covenants with disfavor, but still sustain prevent the neighboring estates from using it. (Solid Manila v Bio Hong)
them where the covenants are reasonable, not contrary to law, or not in
restraint of trade. If the covenant aims to promote aesthetics, health, Art. 618. Easements are indivisible. If the servient estate is divided
and privacy or to prevent overcrowding, then the covenant must be between two or more persons, the easement is not modified, and each
sustained. of them must bear it on the part which corresponds to him.
 A suit for equitable enforcement of a restrictive covenant can only be If it is the dominant estate that is divided between two or more
made by one for whose benefit it is intended. It is thus not normally persons, each of them may use the easement in its entirety, without
enforceable by one who has no right nor interest in the land for the changing the place of its use, or making it more burdensome in any
benefit of which the restriction has been imposed. Thus, developer of a other way. (535)
subdivision can enforce restrictions, even as against remote grantees of
lots, only if he retains part of the land. (Fajardo v Freedom) Quality of indivisibility
 Easement as a right is indivisible.
 Accordingly, the partition between two or more persons of either the
Art. 617. Easements are inseparable from the estate to which they servient or dominant estate does not affect the existence of the
actively or passively belong. (534) servitude which continues in its entirety.
 If the servient estate is divided, each new owner must bear the
Quality of inherence or inseparability easement but only with respect to the part corresponding to him.
 Servitudes are inseparable from the estate to which they actively or  If the dominant estate is divided, each owner can exercise the whole
passively belong, being accessory things whose very existence easement over each of the servient estates subject to the condition that
depends upon the principal thing (immovable). the place of easement shall not be changed and the easement shall not
 Hence, they are intransmissible in the sense that they cannot be be more burdensome.
alienated or mortgaged independently of the estate. o A person entitled to a right of way may do whatever is
 An easement cannot be the object of usufruct because it has no necessary to make it convenient for his use but he cannot
existence independent of the immovable to which it attaches. deviate therefrom. The easement is not considered made more
 If the dominant estate is alienated, such alienation carries with it also burdensome by the mere increase in the owners of the
the easements established in its favor even if they are not annotated as dominant estates.
an encumbrance on the certificate of title.
 An easement is extinguished or cut-off, however, by the registration of Art. 619. Easements are established either by law or by the will of the
the servient estate under the Torrens system without the easement owners. The former are called legal and the latter voluntary easements.
being annotated on the corresponding certificate of title. A registered (536)
owner or subsequent purchaser of registered land holds his certificate of
title free from all encumbrances except only those noted in said Legal and voluntary easements
certificate and the statutory liens.  This article gives the two kinds of easements according to source.
o But if the existence of an easement was known to the  The courts cannot impose or constitute any servitude where none
transferee or grantee of the servient estate, such knowledge is existed.
equivalent to registration.  They can only declare its existence if in reality it exists by law or by the
will of the owners.
Case doctrines  There are no judicial easements.

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 Voluntary easements must be recorded in the Registry of Property in

order not to prejudice third persons. Art. 621. In order to acquire by prescription the easements referred to

 in the preceding article, the time of possession shall be computed
SECTION TWO - MODES OF ACQUIRING EASEMENTS 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
Art. 620. Continuous and apparent easements are acquired either by easement, commenced to exercise it upon the servient estate; and in
virtue of a title or by prescription of ten years. (537a) negative easements, from the day on which the owner of the dominant
estate forbade, by an instrument acknowledged before a notary public,
Modes of acquiring easements the owner of the servient estate, from executing an act which would be
1. By title. All easements. lawful without the easement. (538a)
a. Continuous and apparent easements (Art 620)
b. Continuous and non-apparent easements (Art 622) Computation of the prescriptive period
c. Discontinuous easements, whether apparent or non-  If the easement is positive, the period is counted from the day on which
apparent the owner of the dominant estate began to exercise it
2. By prescription of ten years – only continuous and apparent easements o From the day a window was built in a party wall
3. By deed of recognition (Art 623)  If the easement is negative, from the day on which a notarial prohibition
4. By final judgment was made on the servient estate
5. By apparent sign established by the owner of two adjoining estates (Art  Under article 622, non-apparent easements may not be acquired by
624) prescription. Negative easements are essentially non-apparent.
However, article 621 provides the prescriptive period for negative
Acquisition by title or prescription easements. The notarial prohibition may be taken as making the
 Only continuous and apparent easements may be acquired either by easement apparent, and therefore, prescriptible.
virtue of a title or by prescription in 10 years.
 By title, it refers to the juridical act which gives birth to the easement, Computation in case of easement of light and view
such as law, donation, contract and will of the testator.  If made on one’s own wall and the wall does not extend over the
 This article fixes ten years as the period of prescription, regardless of property of another, the easement is negative because the owner is
good faith or bad faith of the possessor and whether or not he has just merely exercising his inherent right of dominion and not an easement.
title. o The servient owner cannot close it up; otherwise he will be
 The general rules on prescription do not apply, the only requirement liable for trespass.
being that there be adverse possession of the easement for ten years. o But the negative easement is not automatically vested. The
owner must make the prohibition required upon the proprietor
Case doctrines of the adjoining land or tenement to prevent him from
 Prescription as a mode of acquisition requires the existence of the obstructing the light and view.
following: o If the latter consents to such prohibition and the period fixed by
2. Capacity to acquire by prescription law expires, the easement will be acquired by prescription.
3. Thing capable of acquisition by prescription There is no true easement for as long as the right to prohibit its
4. Possession of the thing under certain conditions exercise exists.
 Under claim of title (en concepto de dueno)  If made through a party wall or on one’s own wall which extends over
 Possession not merely tolerated by owner the neighboring estate, the easement acquired is positive because the
5. Lapse of time provided by law (National Power Corp v Campos) owner of the latter estate who has a right to close it up allows an
encumbrance on the property.

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o The period of prescription shall be counted from the time of the  In case the owner alienates either of them or both with the result that
opening of the window. the ownership thereof is divided, the easement shall “continue” unless
the contrary has been stipulated in the title of conveyance of either of
Art. 622. Continuous non-apparent easements, and discontinuous them or the sign removed before the execution of the deed
ones, whether apparent or not, may be acquired only by virtue of a title. o The existence of the apparent sign is equivalent to a title if no
(539) objection has been made by the servient owner for an implied
contract that the easement should be constituted is deemed to
Acquisition only by title exist between the new owners
 Continuous and apparent easements are the only easements that can o The dominant owner can oppose the owner of the servient
be acquired by prescription because they are the only ones the estate from doing anything which would be inconsistent with
possession of which fulfills two important requisites required by law for his obligation to respect the easement
prescription – possession be public and continuous.  If the lots are owned by two different owners, a
 The easements mentioned in Art 622 may be acquired by title, not by notarial prohibition should be effected (Atty Abrenica)
prescription because their possession or exercise is either not public  This article applies in case of the division of a common property by the
(non-apparent) such as easement of lateral and subjacent support, or it co-owners as the effect is the same as an alienation, or there is only
is public but not continuous or uninterrupted (discontinuous), like a right one estate and a part thereof is alienated.
of way if there is a visible path.  This article is not applicable in case the two estates or portions of the
 However, for legal purposes, the easement of aqueduct shall be same estate remain or continue to be in the same owner after alienation
considered as continuous and apparent, although it is not really so. or partition

Art. 623. The absence of a document or proof showing the origin of an Case doctrine
easement which cannot be acquired by prescription may be cured by a  Where two adjoining estates were formerly owner by just one person
deed of recognition by the owner of the servient estate or by a final who introduced improvements on both, such that the wall of the house
judgment. (540a) constructed on the first estate extends to the wall of the camarin on the
second estate; and at the time of the sale of the first estate, there
Art. 624. The existence of an apparent sign of easement between two existed on the wall of the house, doors and windows (which serve as
estates, established or maintained by the owner of both, shall be passages for light and view), there being no provision in the deed of
considered, should either of them be alienated, as a title in order that sale that the easement of light and view will not be established, the case
the easement may continue actively and passively, unless, at the time is covered by 624.
the ownership of the two estates is divided, the contrary should be  The existence of doors and windows on the aforesaid wall of the house
provided in the title of conveyance of either of them, or the sign is equivalent to a title that characterizes its existence.
aforesaid should be removed before the execution of the deed. This  But while the law declares that the easement is to “continue”, the
provision shall also apply in case of the division of a thing owned in easement actually arises for the first time only upon alienation of
common by two or more persons. (541a) another estate, inasmuch as before that time there is no easement to
speak of, there being but one owner of both estates. (Gargantos v Tan
Alienation by same owner of two estates with sign of existence of servitude Yanon)
 This contemplates a situation where two estates between which there
exists an apparent sign (like a window or road) of an easement belong Art. 625. Upon the establishment of an easement, all the rights
to the same owner. necessary for its use are considered granted. (542)
 What the law requires is that the sign indicates the existence of a
servitude although there is no true servitude there being only one owner Rights granted by easement

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 All easements carry with them all the rights necessary for their use and 4. Ask for mandatory injunction to prevent impairment of his of the
exercise easement
 Since these accessory rights or accessory easements exist solely by
virtue of and for the use of the servitude which can be considered as the What are the obligations of the dominant owner?
principal one, they cease upon the termination of the servitude 1. Cannot alter the easement or render it more burdensome
2. Notify the servient owner of works necessary for the use and
Art. 626. The owner of the dominant estate cannot use the easement preservation of the servitude
except for the benefit of the immovable originally contemplated. 3. Choose the most convenient time and manner in making the necessary
Neither can he exercise the easement in any other manner than that works as to cause the least inconvenience to the servient owner
previously established. (n) 
 4. Contribute to the necessary expenses if there are several dominant
estates in proportion to the benefits derived from the works
Immovable to be benefited by easement, and manner of its exercise
 The rule in the first sentence is just because if the owner of the What are the rights of the servient owner?
dominant estate is allowed to use the servitude for the benefit of other 1. Retain the ownership of the portion of the estate on which the easement
adjoining lands subsequently acquired, or for others, that would make is established
the easement more onerous and beyond the intention of the parties 2. Make use of the easement, unless there is an agreement to the contrary
 If the easement has been constituted in general terms, only the rights 3. Change the place or manner of the use of the easement, provided it be
which are reasonably necessary and convenient for the use equally convenient
contemplated and would case the least burden to the servient estate are
granted. What are the obligations of the servient owner?
 Where the purpose of the easement or the manner of its exercise is 1. Cannot impair the use of the easement
defined by the title creating it, the exercise of the easement must be 2. Contribute to the necessary expenses in case he uses the easement,
consistent with such purpose or manner unless there is an agreement to the contrary

Right of the dominant owner to make necessary works

SECTION THREE – RIGHTS AND OBLIGATIONS OF THE
 Right granted by 627 is subject to the following conditions:
OWNERS OF THE DOMINANT AND SERVIENT ESTATES 1. Works shall be at his expense and are necessary for the use and
preservation of the servitude
Art. 627. The owner of the dominant estate may make, at his own 2. They do not alter or render the servitude more burdensome;
expense, on the servient state any works necessary for the use and 3. The dominant owner, before making the works, must notify the
preservation of the servitude, but without altering it or rendering it servient owner, and
more burdensome. 4. They shall be done at the most convenient time and manner as to
For this purpose he shall notify the owner of the servient estate, and cause the lease inconvenience to the servient owner
shall choose the most convenient time and manner so as to cause the
least inconvenience to the owner of the servient estate. (543a) Case doctrine
 (Goldcrest v Cypress Gardens)
What are the rights of the dominant owner?
1. Exercise all the rights necessary for the use of the easement Art. 628. Should there be several dominant estates, the owners of all of
2. Make on the servient estate all works necessary for the use and them shall be obliged to contribute to the expenses referred to in the
preservation of the servitude preceding article, in proportion to the benefits which each may derive
3. Renounce the easement if he desires to exempt himself from the
contribution to necessary expenses

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from the work. Any one who does not wish to contribute may exempt  While the servient estate cannot impair the use of the servitude, he may
himself by renouncing the easement for the benefit of the others. change at his expense the place or manner for its use provided the
If the owner of the servient estate should make use of the following requisites are present:
easement in any manner whatsoever, he shall also be obliged to 1. The place or manner has become very inconvenient to him or
contribute to the expenses in the proportion stated, saving an prevents him from making important works thereon;
agreement to the contrary. (544) 2. He offers another place or manner equally convenient; and
3. No injury is caused by the chance to the dominant owner or to
Obligation to contribute to expenses of necessary works whoever may have a right to the use of the easement.
This article contemplates several dominant estates.
 All the owners shall share the expenses in proportion to the benefits Art. 630. The owner of the servient estate retains the ownership of the
derived by each estate from the works and not in proportion to their portion on which the easement is established, and may use the same
respective interests. The benefits shall be presumed equal in the in such a manner as not to affect the exercise of the easement. (n) 

absence of any agreement or proof to the contrary. The easement of
right of way ordinarily gives the same benefit Right of servient owner to use easement
 An owner may exempt himself from contributing to the expenses by  The servient owner preserves his dominion over the portion of his estate
renouncing the easement in favor of the others. on which the easement is established
 What about the servient owner? Well, he shall be obliged to contribute  This is true although the indemnity consists of the value of the land
to the expense except when there is a stipulation to the contrary, should occupied and the amount of the damage to the servient estate (Art 649)
he make use of the easement in any manner whatsoever. If he bound  He may use the easement subject to the condition that he does not
himself to bear the cost of the work, he may free himself form the impair the rights of the dominant owner.
obligation by renouncing his property to the dominant owner (Art 693)
Case doctrine
Art. 629. The owner of the servient estate cannot impair, in any manner  When the trial court found that the person’s right to continue to use the
whatsoever, the use of the servitude. septic tank ceased upon the subdivision of the land and its subsequent
Nevertheless, if by reason of the place originally assigned, or sale to different owners who do not have the same interest, the
of the manner established for the use of the easement, the same Supreme Court said that this is contrary to law. (Tanedo v Bernad)
should become very inconvenient to the owner of the servient estate,
or should prevent him from making any important works, repairs or SECTION FOUR – MODES OF EXTINGUISHMENT OF
improvements thereon, it may be changed at his expense, provided he
offers another place or manner equally convenient and in such a way
EASEMENTS
that no injury is caused thereby to the owner of the dominant estate or
Art. 631. Easements are extinguished:
to those who may have a right to the use of the easement. (545)
(1) By merger in the same person of the ownership of the
dominant and servient estates;
Obligation of servient owner not to impair servitude
(2) By nonuser for ten years; with respect to discontinuous
 The servient owner may abstain from constructing works or performing
easements, this period shall be computed from the day on which they
any act which will impair, in any manner whatsoever, the use of the
ceased to be used; and, with respect to continuous easements, from
servitude.
the day on which an act contrary to the same took place; 

 An injunction lies at the instance of the dominant owner to prohibit the (3) When either or both of the estates fall into such condition
servient owner from impairing the use of the servitude 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,
Right of servient owner to change place or manner of easement unless when the use becomes possible, sufficient time for prescription

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has elapsed, in accordance with the provisions of the preceding  If continuous (natural drainage), from the day on which an act
number; contrary to the same took place (like construction of a dam which
(4) By the expiration of the term or the fulfillment of the blocks natural drainage)
condition, if the easement is temporary or conditional; 
  The non-use must be voluntary on the part of the dominant owner
(5) By the renunciation of the owner of the dominant estate; and not due to fortuitous events beyond his control unless the non-
(6) By the redemption agreed upon between the owners of the use is due to the impossibility of use under no 3
dominant and servient estates. (546a)  What’s the basis? Well, it’s presumptive renunciation.
o So, the proof of non-user must be undubitable particularly
What are the modes of extinguishment of easements? where the easement is perpetual in character because of
1. By merger its annotation in the Torrens title. Thus, the mere non-use
 It is not necessary that it be with respect to the full extent of the of a passageway by the dominant owner who has gained
tenement but only with respect to that part affected by the servitude direct access to another way does not extinguish the
or that part for the benefit of which the servitude was established easement of right of way. In the absence of any evidence
 The merger must be absolute and complete in one and the same that could point to mutual agreement to the discontinuance
person and not by virtue of other real rights less than full of the easement annotated on the title, its continued
ownership. (where the merger is temporary, as when it is subject to existence must be upheld
a resolutory condition, there is only a suspension but not an  The use by a co-owner of the dominant estate benefits all the other
extinguishment of the servitude.) co-owners and prevents prescription as to them.
 If the servient owner becomes a co-owner of the dominant estate, 3. Impossibility of use
there is no merger for he has acquired only a part interest therein.  When the condition of either or both of the estates which makes
 If the dominant sells a retro the whole immovable to the servient, impossible the use of the easement is irreparable, whether caused
the easement is not extinguished but only suspended. The by fortuitous events or not, the servitude is absolutely extinguished
servitude is revived when the dominant redeems the property. o Otherwise, the impossibility of use merely suspends the
 What if the dominant sells absolutely to the servitude, buys it back, servitude until such time when it can be used again
then sells it to a third person. There is no revival here because it
was already unconditionally extinguished by the sale of the property 4. By expiration of term or fulfillment of resolutory condition
to the servient. But if the sale to servient by dominant was 5. By renunciation
rescinded or annulled, there is no extinguishment by merger.  The renunciation or waiver must be specific, clear and express.
2. By non-user for ten years  This is particularly true for discontinuous easements such as right
 This mode is applicable only to easements that have been in use of way.
and later abandoned, for one cannot discontinue using what one  The waiver must be at least such as may be obviously gathered
has never used from positive acts – if not formal and solemn. The mere refraining
 Some legal easements (natural drainage) may be extinguished by from claiming the right, without any positive acts imply a real
non-user, but only with respect to the actual form or manner in waiver, is not sufficient for the purpose although it may constitute
which they had been exercised, and the right or the power to claim non-use. A clear case of implied waiver is the act of covering up a
the exercise of legal easements does not prescribe, as occurs window by the dominant owner and yet this act does not ipso facto
especially in the case of the right of way and easement of extinguish the easement, but only serves to make the starting point
aqueduct. (Francisco v Paez) for prescription. (Francisco v Paez)
 If the easement is discontinuous (right of way), the period of ten  Where the easement is in favor of a particular group of persons, the
years shall be computed from the day it ceased to be used. voluntary renunciation thereof by some of them will not affect the
right of the others.

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6. By redemption annotated on the corresponding certificate of title, pursuant to Sec 39 of

 it must be by virtue of an agreement between the owners of the Act 496 (Purugganan v Paredes)
dominant and servient estates under which the servitude would be o EXCEPTION: When the person who registers the servient
extinguished estate has ACTUAL knowledge that an easement exists.
7. By other causes (One can’t rely on the face of the title if one has actual
 Annulment, rescission, abandonment, etc knowledge of facts which should compel him to do further
 Registration of the servient estate under the Torrens system investigation)
without the easement being annotated in the title
Art. 632. The form or manner of using the easement may prescribe as
Some case doctrines the easement itself, and in the same way. (547a)
 Alienation of the dominant and servient estates to different persons is
not one of the grounds for extinguishment of the easement. (Tanedo v Prescription of form or manner of using easement
Bernad)  The form or manner (or mode) of using the easement is different from
 Absent a statement abolishing or extinguishing the easement, then the the easement itself or the right to exercise it
easement is continued by operation of law. (Tanedo v Bernad)  Both may be lost by prescription
 An easement is perpetual in character when it is annotated on all the  Some legal easements, however, do not prescribe but the form or
transfer certificates of title issued. Since there is no evidence that would manner of using all easements including legal easements may be lost or
point to a mutual agreement between any of the parties with respect to acquired by prescription
the discontinuance or obliteration of the easement annotated on the
titles, the continued existence of the easement must be upheld and Art. 633. If the dominant estate belongs to several persons in common,
respected. (Benedicto v CA) the use of the easement by any one of them prevents prescription with
 NB: When the easement is a legal easement, it need not be annotated respect to the others. (548)
in the title. A legal easement is one mandated by law, constituted for
public use or for private interest and becomes a continuing property Where dominant estate owned in common
right. It is inseparable from the estate to which it belongs. So, there’s no  Easements are indivisible
need to annotate in the title. (Villanueva v Velasco)  Hence, the use by a co-owner inures to the benefit of all the other co-
 A voluntary easement of right of way, like any other contract, could be owners and prevents prescription as to shares of the latter
extinguished only by mutual agreement or by renunciation of the owner  In other words, the use by a co-owner is deemed to be used by each
of the dominant estate. As it is like any other contract, it is generally and all the co-owners

effective between the parties, their heirs and assigns, except in case
where the rights and obligations arising from the contract are not CHAPTER 2
transmissible by their nature, or by stipulation, or by provision of law. LEGAL EASEMENTS
(Unisource v Chung, 2009)
 If there are easement or other rights appurtenant to a parcel of
registered land which for any reason have failed to be registered, such SECTION ONE – GENERAL PROVISIONS
easement or rights shall remain so appurtenant notwithstanding such
failure, and shall be held to pass with the land until cut off or Art. 634. Easements imposed by law have for their object either public
extinguished by the registration of the servient estate or in any other use or the interest of private persons. (549)
manner. An easement is cut off or extinguished by the registration of the
servient estate under the Torrens system without the easement being What is legal easement?

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 Legal easements are easements imposed or mandated by law, and a. By agreement of the interested parties provided it is not
which have for their object: prohibited by law or injurious to a third person
o either public use or b. In the absence of agreement, by the provisions of general
o the interest of private properties and local laws and ordinances for the general welfare; and
 They become a continuing property right c. In default of a and b, by articles 634 to 687, inclusive of
the Civil Code.
Kinds of legal easements
1. Public legal easements or those for public or communal use Case doctrine
2. Private legal easements or those for the interest of private persons or  Where the land was originally public land, and awarded by free patent
for private use, which include those relating to with a reservation for a legal easement of a right-of-way in favor of the
a. Waters government, just compensation need not be paid for the taking of a part
b. Right of way thereof for public use as an easement of a right of way, unlike if the land
c. Party wall were originally private property. (NIA v CA)
d. Light and view
e. Drainage SECTION TWO – EASEMENTS RELATING TO WATERS
f. Intermediate distances
g. Against nuisance Art. 637. Lower estates are obliged to receive the waters which
h. Lateral and subject support naturally and without the intervention of man descend from the higher
estates, as well as the stones or earth which they carry with them.
Case doctrine The owner of the lower estate cannot construct works which
 See Villanueva v Velasco cited in Art 631 will impede this easement; neither can the owner of the higher estate
make works which will increase the burden. (552)

Art. 635. All matters concerning easements established for public or Legal easements relating to waters
communal use shall be governed by the special laws and regulations 1. Natural drainage (637)
relating thereto, and, in the absence thereof, by the provisions of this 2. Drainage of buildings (674)
Title. (550) 3. Easement on riparian banks for navigation, floatage, fishing, salvage,
and towpath (638)
Art. 636. Easements established by law in the interest of private 4. Easement of a dam (639, 647)
persons or for private use shall be governed by the provisions of this 5. Easement for drawing water or for watering animals (640-641)
Title, without prejudice to the provisions of general or local laws and 6. Easement of aqueduct (642-646)
ordinances for the general welfare. 7. Easement for the construction of a stop lock or sluice gate (647)
These easements may be modified by agreement of the
interested parties, whenever the law does not prohibit it or no injury is Natural drainage of lands
suffered by a third person. (551a)  This article imposes a natural easement upon the lower estates which

 are obliged to receive the waters which naturally and without the
Governing laws intervention of man descend from the higher estates, as well as the
1. Public legal easements – they are governed primarily by the special stones or earth carried by the waters.
laws and regulations relating thereto, and by the Civil Code (634-687),  This easement is a continuous one and may be extinguished by non-
inclusive. user for the period of 10 years required by law. Thus, if a dike was
2. Private legal easements

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constructed by the servient owner (an act contrary to the easement), the 4. Salvage
action to destroy the dike is barred if brought only after 1 years. 5. With respect to estates adjourning banks of navigable rivers, also to
 Duty of servient owner – the owner of the lower estate cannot construct easement of towpath.
works which will impede this easement, such as walls, ditches or  If the land is of public ownership, there is no indemnity; if of private
fences, or a dam which blocks the natural flow of the waters. The ownership, the proper indemnity shall first be paid before it may be
dominant owner may demand their removal or destruction and recover occupied. Riparian owners cannot be required to subject their property
damages. The servient owner may construct works to regulate the flow to the easement for the benefit of the public without prior indemnity.
of waters, but not those which will impede the easement.  The width of the zone subject to the easement is 3 meters throughout
 Duty of dominant owner – the owner of the higher tenement cannot the entire length of the bank along its margin.
make works which will increase the burden. If the waters are the result  The easement established by Article 638 does not apply to canals or
of artificial development, or are the overflow from irrigation dams, or esteros.
proceed from industrial establishments recently set up, the owner of the
lower estate shall be entitled to compensation for his loss or damage. Art. 639. Whenever for the diversion or taking of water from a river or
o But the dominant owner is not prohibited from cultivating brook, or for the use of any other continuous or discontinuous stream,
his land or constructing works to regulate the descent of it should be necessary to build a dam, and the person who is to
the waters to prevent erosion to his land and as long as he construct it is not the owner of the banks, or lands which must support
does not impede the natural flow of the waters and it, he may establish the easement of abutment of a dam, after payment
increase the burden of the lower estate, he is not liable for of the proper indemnity. (554)
damages.
Abutment of buttress of a dam
Remember Remman v CA? The case with the pig shit? It also said that tax  A person who needs to build a dam to divert or take water from a river
returns per se could not reflect the total amount of damages suffered by a or brook but is not the owner of the banks or lands which must support
party, as income losses from a portion of his property could be offset by any the dam, may be allowed the easement of abutment or buttress of a
profit derived from the rest of said property or from other sources of income. dam (estribo de presa)
 He must seek the permission of the owner, and in case of the latter’s
Art. 638. The banks of rivers and streams, even in case they are of refustal, he must secure authority from the proper administrative agency
private ownership, are subject throughout their entire length and within which will conduct the necessary investigation in which all interested
a zone of three meters along their margins, to the easement of public parties are given opportunity to be heard. In establishing the easement,
use in the general interest of navigation, floatage, fishing and salvage. the proper indemnity must be paid.
Estates adjoining the banks of navigable or floatable rivers  Where the construction of a dam is unauthorized, the same can be
are, furthermore, subject to the easement of towpath for the exclusive considered a private nuisance and may be lawfully destroyed or
service of river navigation and floatage. removed by the injured landowner or by any persona acting under his
If it be necessary for such purpose to occupy lands of private directions.
ownership, the proper indemnity shall first be paid. (553a)
Case doctrine
Public easements on banks of river  An easement of buttress can be imposed by administrative authority
 Banks of rivers and streams, whether they are of public or private with respect to land lying adjacent to public or private waters; but in
ownership, are subject to easement of public use for: such case it is required that an investigation of record shall be made
1. Navigation before the easement of buttress is decreed. The making of the
2. Floatage investigation of record is an essential prerequisite to the exercise of the
3. Fishing power. (Solis v Pujeda)

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 Easement of aqueduct is the right arising from a forced easement by

Art. 640. Compulsory easements for drawing water or for watering virtue of which the owner of an estate who desires to avail himself of
animals can be imposed only for reasons of public use in favor of a water for the use of said estate may make such waters pass through the
town or village, after payment of the proper indemnity. (555) intermediate estate with the obligation of indemnifying the owner of the
same and also the owner of the estate to which the water may filter or
Art. 641. Easements for drawing water and for watering animals carry flow.
with them the obligation of the owners of the servient estates to allow  The easement is provided in Article 642. It gives the right to make water
passage to persons and animals to the place where such easements flow through or under intervening or lower estates.
are to be used, and the indemnity shall include this service. (556)
Requisites?
Drawing water or watering animals The person desiring to make use of the easement must:
 This is a personal easement which includes the accessory easement of 1. Prove that he has the capacity to dispose of the water;
passage or right of way of persons and animals to the place where the 2. Prove that the water is sufficient for the use intended;
easement is to be used. 3. Show that the proposed right of way is the most convenient and the
 Requisites are: least onerous to third persons; and
1. Must be imposed for reasons of public use; 4. Pay indemnity to the owner of the servient estate.
2. Must be in favor of a town or village; and  But where the number of years that have elapsed since the
3. Must be payment of proper indemnity. easement had first come into existence and the subsequent
changes in ownership of lots involved would make it impossible
to present proof of indemnity to the owner of the servient
Art. 642. Any person who may wish to use upon his own estate any estate, this requisite has been deemed to be complied with.
water of which he can dispose shall have the right to make it flow (Salazar v Gutierrez)
through the intervening estates, with the obligation to indemnify their
owners, as well as the owners of the lower estates upon which the  The easement cannot be imposed over buildings, courtyards, annexes
waters may filter or descend. (557) or gardens if the easement is for private interest.

Art. 643. One desiring to make use of the right granted in the preceding Case doctrines
article is obliged:  The Spanish Law of Waters allows the creation of a compulsory
(1) To prove that he can dispose of the water and that it is easement of aqueduct for the purpose of establishing or extending an
sufficient for the use for which it is intended; irrigation system, and there is nothing to the contrary in the Civil Code.
(2) To show that the proposed right of way is the most  The registration of the servient lot without the corresponding registration
convenient and the least onerous to third persons; of the easement of aqueduct on the title cannot summarily terminate it

 (3) To indemnify the owner of the servient estate in the 30 years thereafter where the original registered owner of the servient
manner determined by the laws and regulations. (558) lot allowed the easement to continue in spite of such non-registration.
 The least that can be said is that he either recognized its existence as a
Art. 644. The easement of aqueduct for private interest cannot be compulsory servitude on his estate or voluntarily agreed to its
imposed on buildings, courtyards, annexes, or outhouses, or on establishment and continuance. And subsequent purchasers of the
orchards or gardens already existing. (559) servient estate cannot capitalize on the absence of annotation on the
title where they are aware of the existence of the easement and likewise
Easement of aqueduct… what is it?! allowed it to continue for 26 years after they acquired title. (Salazar v
Gutierrez)

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Art. 645. The easement of aqueduct does not prevent the owner of the Art. 648. The establishment, extent, form and conditions of the
servient estate from closing or fencing it, or from building over the servitudes of waters, to which this section refers, shall be governed by
aqueduct in such manner as not to cause the latter any damage, or the special laws relating thereto insofar as no provision therefor is
render necessary repairs and cleanings impossible. (560) made in this Code. (563a) 

SECTION THREE – EASEMENT OF RIGHT OF WAY
Right of owner of servient estate
 The servient owner may close or fence his estate, or build over the Art. 649. The owner, or any person who by virtue of a real right may
aqueduct so long as no damage is caused to the aqueduct or the cultivate or use any immovable, which is surrounded by other
necessary repairs and cleaning of the same are not rendered immovables pertaining to other persons and without adequate outlet to
impossible. a public highway, is entitled to demand a right of way through the
 He can construct works he may deem necessary to prevent damage to neighboring estates, after payment of the proper indemnity.
himself provided he does not impede or impair, in any manner Should this easement be established in such a manner that its
whatsoever, the use of the easement – just like the owner of the lower use may be continuous for all the needs of the dominant estate,
estate on which an easement of natural drainage has been established. establishing a permanent passage, the indemnity shall consist of the
If he does impair, the dominant owner may ask for the removal or value of the land occupied and the amount of the damage caused to
destruction of such works with a right to indemnity for damages. the servient estate.
In case the right of way is limited to the necessary passage for
Art. 646. For legal purposes, the easement of aqueduct shall be the cultivation of the estate surrounded by others and for the gathering
considered as continuous and apparent, even though the flow of the of its crops through the servient estate without a permanent way, the
water may not be continuous, or its use depends upon the needs of the indemnity shall consist in the payment of the damage caused by such
dominant estate, or upon a schedule of alternate days or hours. (561) encumbrance.
This easement is not compulsory if the isolation of the
Easement considered as continuous and apparent immovable is due to the proprietor's own acts. (564a)
 For legal purposes, the easement is considered continuous and
apparent and therefore, may be susceptible of acquisitive prescription. 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
Art. 647. One who for the purpose of irrigating or improving his estate, this rule, where the distance from the dominant estate to a public
has to construct a stop lock or sluice gate in the bed of the stream highway may be the shortest. (565)
from which the water is to be taken, may demand that the owners of
the banks permit its construction, after payment of damages, including Easement of right of way… DEFINED!
those caused by the new easement to such owners and to the other  Easement of right of way is the right granted by law to the owner of an
irrigators. (562) estate which is surrounded by other estates belonging to other persons
and without an adequate outlet to a public highway to demand that he
Construction of a stop lock or sluice gate be allowed a passageway throughout such neighboring estates after
 In Article 639, the purpose of building a dam is to divert water from a payment of the proper indemnity.
river or brook. Here, the purpose of the construction is to take water for
irrigation, or to improve an estate. Requisites of the easment (based on de Leon)
 In both cases, the construction is on the estate of another and proper 1. Claimant must be an owner of enclosed immovable or one with real
indemnity has to be paid. Furthermore, no damage must be caused to right
third persons. 2. No adequate outlet to a public highway

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3. Right of way must be absolutely necessary

4. The isolation must not be due to the claimant’s own act The easement must be established at the point least prejudicial to the
5. The easement must be established at the point least prejudicial servient estate
6. There must be payment of proper indemnity  The shortest is not always the least prejudicial.
 The criterion of least prejudicial shall be observed although the distance
may not be the shortest or is even the longest.
Claimant must be an owner of enclosed immovable or one with real right  In other words, this is the TEST - the one where the way is shortest and
 Not only the owner but any person who by virtue of a real right may will cause the least damage should be chosen.
cultivate or use an immovable, may demand a right of way. A o But if these two circumstances do not concur in a single
usufructuary may demand a right of way. tenement, the way which will cause the least damage should
1. A mortgagee is not entitled to demand because it is necessary that be used, even if it would not be the shortest.
the land be cultivated or used by virtue of a right like that of a  Between a right of way that will demolish a house and
usufruct another one which will merely cut down a tree (yet is
2. A mere lessee cannot demand the legal servitude of way because a longer route to the highway), the latter shall prevail.
his action is against the lessor who is bound to maintain him in the  The rule is different in eminent domain proceedings wherein the grantee
enjoyment of the lease. However, if the lessee registers the lease in of the power of eminent domain can choose as he pleases, as long as it
the Registry of Property, it becomes a real right, and the lessee is not capricious and wantonly injurious.
would then be entitled to demand the right of way.
Proper indemnity
No adequate outlet to a public highway  The right can be acquired only after the proper indemnity has been paid.
 Covers cases when there is absolutely no outlet or access, or even  If the passage is of continuous and permanent nature (continuous for all
when there is one, the same is not adequate (like when it’s dangerous, the needs of the dominant estate), the indemnity consists of the value of
very costly, etc) the land occupied plus amount of damages caused to the servient
 The owner of the servient estate cannot obstruct the use of the estate; and
easement if the proposed new location for it is farther and is not as  If it is temporary (limited to the necessary passage for the cultivation of
convenient. the enclosed estate and for the gathering of its crops through the
servient estate), indemnity consists in the payment of the damage
Right of way must be absolutely necessary caused to the servient estate.
 The right cannot be claimed merely for the convenience of the owner of  Even if the easement is for a laudable purpose, there is still a need for
the enclosed estate. compensation.
 Owner must show that the compulsory easement is absolutely  BUT…
necessary for the normal enjoyment of his property. Even if necessary o Where the land was originally public land, and awarded by free
but it can be satisfied without imposing the servitude, the same should patent and was registered with an OCT and TCT with a
not be imposed. reservation for a legal easement of a right-of-way in favor of
 The easement can be established for the benefit of a tenement with an the government, just compensation need not be paid for the
inadequate outlet, but not when the outlet is merely inconvenient. taking of a part thereof for public use as an easement of a right
of way, unlike if the land were originally private property. (NIA v
Isolation must not be due to the claimant’s own act CA)
 If he constructs a permanent structure and effectively blocks himself out
from the pubic highway, then he is stupid and he will not be granted an What are the kinds of easements of right of way?
easement.

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1. Private, when it is established in favor of a private person, such as the Art. 651. The width of the easement of right of way shall be that which
right granted in Article 649; or is sufficient for the needs of the dominant estate, and may accordingly
2. Public, when it is available in favor of the community or the public at be changed from time to time. (566a)
large.
Width of the passage
Acquisition and extinguishment by prescription  It is the needs of the dominant property which ultimately determine the
 The easement of right of way, being discontinuous, cannot be acquired width of the passage, and these needs may vary from time to time.
ny prescription. It may be apparent, but it is not a continuous easement.  The easement established may thus be changed or modified from time
 De Leon gives some reasons why the easement of right of way should to time as the subsequent needs of the dominant estate may demand.
be considered as continuous in page 480 of his book.
Art. 652. Whenever a piece of land acquired by sale, exchange or
Case doctrines partition, is surrounded by other estates of the vendor, exchanger, or
 Requisites of the easement (based on Valdez v Tabisula; Lee, co-owner, he shall be obliged to grant a right of way without indemnity.
Villanueva; etc) In case of a simple donation, the donor shall be indemnified by
1. Claimant must be an owner of enclosed immovable or one with real the donee for the establishment of the right of way. (567a)
right
2. Property is surrounded by other immovables and has no adequate Art. 653. In the case of the preceding article, if it is the land of the
outlet to a public highway grantor that becomes isolated, he may demand a right of way after
3. Proper indemnity must be paid paying a indemnity. However, the donor shall not be liable for
4. The isolation is not the result of the owner of the dominant estate’s indemnity. (n)
own acts
5. The right of way claimed is at the least prejudicial to the servient Where land of transferor or transferee enclosed
estate  These two articles are exceptions to the requirement in Article 649
6. To the extent consistent with the foregoing rule, the distance from regarding the payment of indemnity.
the dominant estate to a public highway may be the shortest.  If the land transferred is surrounded by other estates of the vendor,
 The onus of proving the existence of these requisites lies on the owner exchanger or co-owner, the transferee is not obliged to pay indemnity
of the dominant estate. for the easement as the consideration for the transfer is presumed to
 Requisites na naman! (based on Mejorada v Vertudazo) include the easement without the indemnity.
1. The estate is surrounded by other immovables and is without o If the right of way becomes useless for some reason or
adequate outlet to a public highway; another, it is no longer than transferor’s fault. Apply Article 642.
2. After payment of the proper indemnity o Article 652 is not applicable in case of simple donation
3. The isolation was not due to the proprietor’s acts; and because the donor receives nothing for his property.
4. The right of way claimed is at a point least prejudicial to the servient  If it is the land of the grantor that becomes isolated, he may demand a
estate. right of way but shall be obliged to pay indemnity unless the purchaser
 One whose land is enclosed by the lands of others at one acquires the agreed to grant right without indemnity.
right to demand an easement of way to the nearest street or road, but o The donor shall not be liable for indemnity as it is considered a
his failure to do so does not constitute a renunciation of his right nor tacit condition of the donation.
does the right to demand such easement prescribe under Article 631.
The right to demand a right of way is imprescriptible. (Francisco v Paez) 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

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the taxes shall be reimbursed by said owner to the proprietor of the materials through the estate of another, or to raise therein scaffolding
servient estate. (n) 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
Responsibility for repairs and taxes indemnity for the damage caused him. (569a)
 This applies if the right of way is permanent.
 The servient owner retains ownership of the passageway; hence, he Temporary easement of right of way
pays all the taxes.  This applies to a right of way which is essentially temporary or
 The dominant owner is liable for the necessary repairs and the transitory.
proportionate share of the taxes paid by the servient owner, meaning  It is sufficient that great inconvenience, difficulty, or expense would be
the amount of taxes corresponding to the portion on which the encountered if the easement was not granted.
easement is established.  Temporary easement is allowed only after the payment of the proper
indemnity.
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 Case doctrine
public road, the owner of the servient estate may demand that the  The installation of electric power lines is a permanent easement not
easement be extinguished, returning what he may have received by covered by Article 656. Article 656 deals only with the temporary
way of indemnity. The interest on the indemnity shall be deemed to be easement of passage. (Preysler, Jr v CA)
in payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened Art. 657. Easements of the right of way for the passage of livestock
giving access to the isolated estate. known as animal path, animal trail or any other, and those for watering
In both cases, the public highway must substantially meet the places, resting places and animal folds, shall be governed by the
needs of the dominant estate in order that the easement may be ordinances and regulations relating thereto, and, in the absence
extinguished. (568a) thereof, by the usages and customs of the place.
Without prejudice to rights legally acquired, the animal path
Extinguishment of compulsory easement of right of way shall not exceed in any case the width of 75 meters, and the animal trail
 This applies to compulsory easement of right of way. that of 37 meters and 50 centimeters.
 The two causes of extinguishment are: Whenever it is necessary to establish a compulsory easement
1. The joining of the isolated estate to another abutting a public road, of the right of way or for a watering place for animals, the provisions of
and this Section and those of Articles 640 and 641 shall be observed. In
2. Opening a new road which gives access to the estate. this case the width shall not exceed 10 meters. (570a) 

 The new outlet must be adequate.
 The extinguishment is not automatic because the law says that the Right of way for the passage of livestock, watering places
owner of the servient estate may demand that the easement be  The easements shall be governed by the ordinances, regulations, and in
extinguished, if he so desires. So, the dominant owner cannot ask for their absence, usages and customs of the place.
the return of the indemnity, if the servient owner chooses to allow the  Animal path max width: 75 meters
continuation of the easement.  Animal trail max width: 37.5 meters
 The servient owner is not liable to pay interest on the indemnity as the  For drawing waters and for watering animals max width: 10 meters
interest is deemed to be payment for the use of the easement. o In the last case, they can be imposed only for reasons of public
use in favor of a town or barrio and only after payment of the
Art. 656. If it be indispensable for the construction, repair, proper indemnity.
improvement, alteration or beautification of a building, to carry

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SECTION FOUR – EASEMENT OF PARTY WALL 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:
Art. 658. The easement of party wall shall be governed by the (1) In dividing walls of adjoining buildings up to the point of
provisions of this Title, by the local ordinances and customs insofar as common elevation;
they do not conflict with the same, and by the rules of co-ownership. (2) In dividing walls of gardens or yards situated in cities,
(571a) towns, or in rural communities; 

(3) In fences, walls and live hedges dividing rural lands. (572)
What’s an easement of party wall?
 It refers to all those mass of rights and obligations emanating from the When is the existence of a party wall presumed?
existence and common enjoyment of wall, fence, enclosures or hedges, 1. In dividing walls of adjoining buildings up to the point of common
by the owners of adjacent buildings and estates separated by such elevation;
objects. 2. In dividing walls of gardens or yards situated in cities, towns, or in rural
communities; or
What is a party wall, what is its nature? 3. In fences, walls and live hedges dividing rural lands.
 A party wall is a common wall which separates two estates, built by
common agreement at the dividing line such that it occupies a portion of  The legal presumption is juris tantum; it may be rebutted by a title or
both estates on equal parts. exterior sign or any other proof showing that the entire wall in
 It is a kind of forced co-ownership in which the parties are prt-owners. controversy belongs exclusively to one of the adjoining property owners.
 Each owner owns part of the wall but it cannot be separated from the
other portions belonging to the others. Case doctrine
 An owner may use a party wall to the extent of the ½ portion on his  A wall separating two adjoining buildings, built on the land on which one
property. Not all common walls or walls in co-ownership are party walls. of these buildings stands, is not a party wall when there is a drain along
(A wall built on a co-owned lot is a common wall, not a party wall.) its top to carry away the water from the roof and eaves of the building
belonging to the owner of the land on which the wall is erected; and also
when a part of the wall is covered by the roof of the said building, the
Party Wall Co-ownership
construction of which demonstrates that the wall belongs exclusively to
The shares of the co-owners cannot Shares of the co-owners can be
the owner of the building of which it forms part. (Lao v Heirs of Alburo)
be physically segregated but they divided or separated physically.
can be physically identified. Before such division, a co-owner
Art. 660. It is understood that there is an exterior sign, contrary to the
cannot point to any definite portion of
easement of party wall:
the property as belonging to him.
(1) Whenever in the dividing wall of buildings there is a
No such limitation None of the co-owners may use the
window or opening;
community property for his exclusive
(2) Whenever the dividing wall is, on one side, straight and
benefit plumb on all its facement, and on the other, it has similar conditions on
Any owner may free himself from Partial renunciation is allowed the upper part, but the lower part slants or projects outward; 

contributing to the cost of repairs (3) Whenever the entire wall is built within the boundaries of
and construction of a party wall by one of the estates; 

renouncing all his rights thereto. (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; 


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(5) Whenever the dividing wall between courtyards, gardens, Art. 662. The cost of repairs and construction of party walls and the
and tenements is constructed in such a way that the coping sheds the maintenance of fences, live hedges, ditches, and drains owned in
water upon only one of the estates; 
 common, shall be borne by all the owners of the lands or tenements
(6) Whenever the dividing wall, being built of masonry, has having the party wall in their favor, in proportion to the right of each.
stepping stones, which at certain intervals project from the surface on Nevertheless, any owner may exempt himself from
one side only, but not on the other; 
 contributing to this charge by renouncing his part-ownership, except
(7) Whenever lands inclosed by fences or live hedges adjoin when the party wall supports a building belonging to him. (575)
others which are not inclosed.
In all these cases, the ownership of the walls, fences or Contribution to cost of repairs and construction of party walls
hedges shall be deemed to belong exclusively to the owner of the  The part-owners of the party wall shall contribute to the cost in the
property or tenement which has in its favor the presumption based on proportion to their respective interests.
any one of these signs. (573) o But if the cause of the repairs is due to the fault of just one,
then he alone shall bear the costs.
Exterior signs rebutting presumption  Any owner may free himself from contributing to the charge by
 This article mentions some exterior signs rebutting the presumption of a renouncing his rights in the party wall unless it actually supports his
party wall. The wall becomes the exclusive property of the owner of the building.
estate which has in its favor the presumption based on any of the above  The renunciation will include the land on which the party wall is
exterior signs. constructed.
 The enumeration is merely illustrative, and is not exclusive.
 The exterior signs may contradict each other. In such case, the court Art. 663. If the owner of a building, supported by a party wall desires to
shall decide the matter taking into consideration all the circumstances. demolish the building, he may also renounce his part-ownership of the
o But in case of conflict between a title evidencing ownership to wall, but the cost of all repairs and work necessary to prevent any
a wall and an exterior sign, the former must prevail, for the damage which the demolition may cause to the party wall, on this
latter merely gives rise to an inference of ownership. occasion only, shall be borne by him. (576)

Art. 661. Ditches or drains opened between two estates are also Demolish that building! Demolish!
presumed as common to both, if there is no title or sign showing the  An owner may also renounce his part ownership of a party wall if he
contrary. desires to demolish his building supported by the wall.
There is a sign contrary to the part-ownership whenever the  He shall bear all the expenses of repairs and work necessary to prevent
earth or dirt removed to open the ditch or to clean it is only on one side any damage which the demolition may cause to the party wall.
thereof, in which case the ownership of the ditch shall belong
exclusively to the owner of the land having this exterior sign in its Art. 664. Every owner may increase the height of the party wall, doing
favor. (574) at his own expense and paying for any damage which may be caused
by the work, even though such damage be temporary.
Bitches or drains between two estates (hehe) The expenses of maintaining the wall in the part newly raised
 The deposit of earth or debris on one side alone is an exterior sign that or deepened at its foundation shall also be paid for by him; and, in
the owner of that side is the owner of the ditch or the drain. addition, the indemnity for the increased expenses which may be
 Again, this is rebuttable. 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

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and, if for this purpose it be necessary to make it thicker, he shall give

the space required from his own land. (577) WHAT IS AN EASEMENT OF LIGHT?!?!
 Easement of light (jus luminum) is the right to admit light from the
Art. 665. The other owners who have not contributed in giving neighboring estate by virtue of the opening of a window or the making of
increased height, depth or thickness to the wall may, nevertheless, certain openings.
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 WHAT IS AN EASEMENT OF VIEW?!?!
for its increased thickness. (578a)  Easement of view (jus prospectus) is the right to make openings or
windows, to enjoy the view through the estate of another and the power
Increase the height of party wall! to prevent all constructions or works which would obstruct such view or
 An owner is given the right to increase the height of a party wall subject make the same difficult.
to the following conditions:  It necessarily includes the easement of light.
1. He must do so at his own expense;
2. He must pay for any damage which may be caused thereby even if Making of opening through a party wall
damage is temporary;  A part-owner cannot exercise an act which implies full ownership of the
3. He must bear the cost of maintaining the portion added; and wall by making use of all its thickness.
4. He must pay the increased cost of preservation of the wall.  Remember, a window in the dividing wall of buildings is an exterior sign
 He shall be obliged to reconstruct the wall at his expense if it is which rebuts the presumption that the wall is a party wall. One part-
necessary so that the wall can bear the increased height, and if owner may not, therefore, make any window or opening of any kind thru
additional thickness is required, he shall provide the space therefore a party wall without the consent of the others.
from his own land.
 The other owners cannot object to the work as long as the above Art. 668. The period of prescription for the acquisition of an easement
conditions are complied with. of light and view shall be counted:
 The owner who makes the addition acquires ownership unless the other (1) From the time of the opening of the window, if it is through
owners pay proportionately the value of the work at the time of the a party wall; or
acquisition (not the construction) and of the land used for the wall’s (2) From the time of the formal prohibition upon the proprietor
increased thickness. of the adjoining land or tenement, if the window is through a wall on
the dominant estate. (n)
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 Prescriptive period for acquisition of easement of light and view
common and respective uses by the other co-owners. (579a) 
  The easement of light and view is either positive or negative.
 When is it positive?
Proportional use of party wall o It is considered positive if made through a party wall or even if
 If Tweet owns 2/3 of the party wall and Plurk owns 1/3, Tweet may use made on one’s own wall, if the window is on a balcony or
the wall (like inserting a beam) up to 2/3 of its thickness, and Plurk can projection extending over the adjoining property.
do the same up to 1/3. o When a window is opened through a party wall, an apparent
and continuous easement is created from the time of such
SECTION FIVE – EASEMENT OF LIGHT AND VIEW opening. But there is no true easement as long as the right to
prevent its use exists.
Art. 667. No part-owner may, without the consent of the others, open o The adjoining owner can order the window closed within 10
through the party wall any window or aperture of any kind. (580) years from the time of the opening of the window.

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 When is it negative? He can also obstruct them by constructing a building on his

o It is considered negative if the window is made through a wall land or by raising a wall thereon contiguous to that having such
on the dominant estate. openings, unless an easement of light has been acquired. (581a)
o The 10-year period of prescription commences from the time of
the formal prohibition (instrument acknowledged by a notary Openings at height of ceiling joists to admit light
public) upon the adjoining owner.  When the wall is not a party wall, the owner may make an opening for
o Before the expiration of the prescriptive period, the window the purpose of admitting light and air, but not for view. The restrictions
exists by mere tolerance of the adjoining owner who always are the following:
retains the right to have it closed or to build an obstruction, 1. The size must not exceed 30 cm square;
although the opening was made more than 10 years after he 2. The opening must be at the height of the ceiling joists or
decided to exercise his right. immediately under the ceiling;
 The opening by Xyzal was made in 1990 but he made 3. There must be an iron grating imbedded in the wall; and
a formal notarial demand prohibiting Yeeyoo to 4. There must be a wire screen.
obstruct the view only in 1994, Yeeyoo may still  When the wall becomes a party wall, a part-owner can order the closure
demand the closure of the window in 2001. of the opening because no part-owner may make an opening through a
party wall without the consent of the others. It can also obstruct the
Case doctrines opening unless an easement of light has been acquired by prescription,
 When the construction of windows and balconies does not constitute an in which case the servient owner may not impair the easement.
actual invasion of the rights of another, but is a lawful exercise of an
inherent right, the easement of light and view is negative. (Fabie v Case doctrine
Lichauco)  If a house consists of more than one story, each story may have the
 When a window is opened in a party wall, the express or implied same openings which are provided by law for one house. The purpose
consent of the part owner affords a basis for the acquisition of a of the law is to provide light to the rooms and it is evident that the rooms
prescriptive title. of the lower stories have a much need for light as those of the top story.
 When a window is opened in the wall of a neighbor, prescription (Choco v Santamaria))
commences to run from the date of the opening of the windows and  When the house has been built, with two meters of the dividing line (Art
ripens into title when the specified time has elapsed without opoosition 670), no other windows than those provided in this article may be
on the part of the owner of the wall. (Cortes v Yu Tibo) opened in its walls. (Saez v Figueras)

Art. 670. No windows, apertures, balconies, or other similar projections
Art. 669. When the distances in Article 670 are not observed, the owner which afford a direct view upon or towards an adjoining land or
of a wall which is not party wall, adjoining a tenement or piece of land tenement can be made, without leaving a distance of two meters
belonging to another, can make in it openings to admit light at the between the wall in which they are made and such contiguous
height of the ceiling joints or immediately under the ceiling, and of the property.
size of thirty centimeters square, and, in every case, with an iron Neither can side or oblique views upon or towards such
grating imbedded in the wall and with a wire screen. conterminous property be had, unless there be a distance of sixty
Nevertheless, the owner of the tenement or property adjoining centimeters.
the wall in which the openings are made can close them should he The nonobservance of these distances does not give rise to
acquire part-ownership thereof, if there be no stipulation to the prescription. (582a)
contrary.

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Art. 671. The distance referred to in the preceding article shall be owner of the servient estate cannot build thereon at less than a
measured in cases of direct views from the outer line of the wall when distance of three meters to be measured in the manner provided in
the openings do not project, from the outer line of the latter when they Article 671. Any stipulation permitting distances less than those
do, and in cases of oblique view from the dividing line between the two prescribed in Article 670 is void. (585a)
properties. (583)
Where easement of direct view has been acquired
Direct and oblique views  The word “title” as used in Article 673 refers to any of the modes of
 Article 760 requires a distance of: acquiring easements (contract, will, donation or prescription).
o For direct view, 2 meters  Whenever the easement of direct view has been acquired by such title,
o For oblique view, 60 cm there is created a true easement, the owner of the servient estate
 Article 761 provides the manner of measuring the distance. cannot build thereon at less than a distance of 3 meters from the
o For direct view – from the outer line of the wall when the boundary line.
openings do not project; from the outer line of the openings  The distance may be increased or decreased by stipulation of the
when they do project parties provided that in case of decrease, the minimum distance of 2
o For oblique view – from the dividing line meters or 60 cm in 670 must be observed. If not, then it’s void.
 An owner can build within the minimum distance or even up to the
dividing line provided no window is opened except as provided in Article 

669. SECTION SIX – DRAINAGE OF BUILDINGS
 When windows are opened, without observing the required legal
distances, the adjoining owner has a right to have them closed. Art. 674. The owner of a building shall be obliged to construct its roof
 The non-observance of the distances does not give rise to prescription. or covering in such manner that the rain water shall fall on his own
o The mere opening of the windows in violation of Article 770 land or on a street or public place, and not on the land of his neighbor,
does not give rise to the servitude by prescription. even though the adjacent land may belong to two or more persons, one
o It’s a negative easement because the window is through a wall of whom is the owner of the roof. Even if it should fall on his own land,
of the dominant estate and so prescription may still be the owner shall be obliged to collect the water in such a way as not to
acquired after 10 years from the time of notarial prohibition. cause damage to the adjacent land or tenement. (586a)

Art. 672. The provisions of Article 670 are not applicable to buildings What is an easement of drainage of buildings?
separated by a public way or alley, which is not less than three meters  Easement of drainage of buildings is the right to divert or empty the rain
wide, subject to special regulations and local ordinances. (584a) waters from the one’s own roof or shed to the neighbor’s estate either
drop by drop or through conduits.
Where buildings separated by a public way or alley
 The distance in 670 is not compulsory where there is a public way or Rainwater not to fall on land of another
alley provided that it is not less than 3 meters wide.  This article does not really create a servitude, it merely regulates the
use of one’s own property by imposing on him the obligation to collect
Case doctrine its rain waters so as not to cause damage to his neighbors, even if he
 A private alley opened to the use of the general public falls within the be a co-owner of the latter.
provision of Article 672.  It’s an exemption to Article 637 which obliges lower estates to receive
the waters which naturally flow from higher estates.
Art. 673. Whenever by any title a right has been acquired to have direct
views, balconies or belvederes overlooking an adjoining property, the

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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 Art. 678. No person shall build any aqueduct, well, sewer, furnace,
manner as to receive the water upon his own roof or give it another forge, chimney, stable, depository of corrosive substances, machinery,
outlet in accordance with local ordinances or customs, and in such a or factory which by reason of its nature or products is dangerous or
way as not to cause any nuisance or damage whatever to the dominant noxious, without observing the distances prescribed by the regulations
estate. (587) and customs of the place, and without making the necessary protective
works, subject, in regard to the manner thereof, to the conditions
Easement to receive falling rainwater prescribed by such regulations. These prohibitions cannot be altered
 This article deals not with a legal or compulsory easement but with a or renounced by stipulation on the part of the adjoining proprietors.
voluntary easement to receive rain water falling from the roof of an In the absence of regulations, such precautions shall be taken
adjoining building. as may be considered necessary, in order to avoid any damage to the
 It is an application of Article 629. neighboring lands or tenements. (590a)

Art. 676. Whenever the yard or court of a house is surrounded by other Construction of aqueduct, well, sewer, etc
houses, and it is not possible to give an outlet through the house itself  Constructions which by reason of their nature or products are
to the rain water collected thereon, the establishment of an easement dangerous or noxious must comply with the distances prescribed by
of drainage can be demanded, giving an outlet to the water at the point local regulations and customs of the place. Necessary protective works
of the contiguous lands or tenements where its egress may be easiest, must also be built/done by the owner to avoid damage to neighbors.
and establishing a conduit for the drainage in such manner as to cause  The prohibitions cannot be altered by stipulations because of the
the least damage to the servient estate, after payment of the property underlying public policy of safety.
indemnity. (583) 
  Whut up, ang layo mo na! Go go go!

Easement giving outlet to rainwater where house surrounded by other Art. 679. No trees shall be planted near a tenement or piece of land
houses belonging to another except at the distance authorized by the
 The legal easement of drainage may be demanded subject to the ordinances or customs of the place, and, in the absence thereof, at a
following conditions: distance of at least two meters from the dividing line of the estates if
1. There must be no adequate outlet to the rainwater because the tall trees are planted and at a distance of at least fifty centimeters if
yard or court of a house is surrounded by other houses; shrubs or small trees are planted.
2. The outlet to the water must be at the point where egress is Every landowner shall have the right to demand that trees
easiest, and establishing a conduit for drainage; and hereafter planted at a shorter distance from his land or tenement be
3. There must be payment of proper indemnity. uprooted.
The provisions of this article also apply to trees which have
SECTION 7. – INTERMEDIATE DISTANCES AND WORKS grown spontaneously. (591a)
FOR CERTAIN CONSTRUCTIONS AND PLANTINGS
Planting of trees (wow!)
Art. 677. No constructions can be built or plantings made near fortified  This article establishes a negative easement.
places or fortresses without compliance with the conditions required in  It provides the minimum distance of trees and shrubs from the boundary
special laws, ordinances, and regulations relating thereto. (589) line.
 They shall be regulated first by local ordinances; and then by the
Constructions and plantings near fortified places customs of the place; and in default of both, this interesting article.
 This article establishes an easement in favor of the State.

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 In case of violation, a landowner shall have the right to demand the he could lawfully do were it not for the existence of the easement.
uprooting of the tree or shrub even if it has grown spontaneously. However, a nuisance involves any act of ormission which is unlawful.
So, these two articles are more of a restriction on the right of ownership
Art. 680. If the branches of any tree should extend over a neighboring than a true easement.
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 SECTION 9. - Lateral and Subjacent Support (n)
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 Art. 684. No proprietor shall make such excavations upon his land as
within his property. (592) to deprive any adjacent land or building of sufficient lateral or
subjacent support.
Intrusions of branches or roots into neighboring estates
 In case of branches, the adjoining owner must first demand that they be Art. 685. Any stipulation or testamentary provision allowing
cut-off by the tree owner insofar as they spread over the former’s excavations that cause danger to an adjacent land or building shall be
property. If the tree owner refuses, he may ask authority from the court. void.
 As to the roots, he may cut them off himself if they penetrate into his
land without the necessity of giving notice to the tree owner, because, Art. 686. The legal easement of lateral and subjacent support is not
by right of accession, he has acquired ownership over them. It actually only for buildings standing at the time the excavations are made but
constitutes a direct invasion on his land (grabe naman.) also for constructions that may be erected.

Art. 681. Fruits naturally falling upon adjacent land belong to the owner Art. 687. Any proprietor intending to make any excavation
of said land. (n) 
 contemplated in the three preceding articles shall notify all owners of
adjacent lands. 

Kung mahulog yung mangga ni Jhunjhun sa lote ko, akin na ba yung
mangga? Proprietor prohibited from making dangerous excavations
 Yes. But the falling must occur naturally. So I have no right to pick fruits  Support is lateral when the supported and the supporting lands are
still on branches that extend over my land. divided by a vertical plane.
 This is not based on occupation nor accession, but by operation of law.  Support is subjacent when the supported land is above and the
supporting land is beneath it.
SECTION 8. – EASEMENT AGAINST NUISANCE  An owner, by virtue of his surface right, may make excavations on his
land, but his right is subject to the limitation in Article 684 that he shall
Art. 682. Every building or piece of land is subject to the easement not deprive any adjacent land or building of sufficient lateral or
which prohibits the proprietor or possessor from committing nuisance subjacent support.
through noise, jarring, offensive odor, smoke, heat, dust, water, glare  Any stipulation or testamentary provision allowing excavations that
and other causes. violate Article 684 is void. The limitation applies not only to existing
buildings but also to future constructions.
Art. 683. Subject to zoning, health, police and other laws and  The notice required in Article 687 is mandatory except where there is
regulations, factories and shops may be maintained provided the least actual knowledge of the proposed excavation.
possible annoyance is caused to the neighborhood. 
  The adjacent owner is entitled to injunctive relief and to damages for
violation of the provisions.
 The Code considers the easement against nuisance as negative
because the proprietor or possessor is prohibited to do something which CHAPTER 3

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VOLUNTARY EASEMENTS
Art. 688. Every owner of a tenement or piece of land may establish Art. 691. In order to impose an easement on an undivided tenement, or
thereon the easements which he may deem suitable, and in the manner piece of land, the consent of all the co-owners shall be required.
and form which he may deem best, provided he does not contravene The consent given by some only, must be held in abeyance
the laws, public policy or public order. (594) until the last one of all the co-owners shall have expressed his
conformity.
Owner of land may constitute easement But the consent given by one of the co-owners separately from
 Since easement involves an act of strict dominium, only the owner or at the others shall bind the grantor and his successors not to prevent the
least one acting in his name and under his authority, may establish a exercise of the right granted. (597a)
voluntary easement.
 However, a beneficial owner may establish a temporary easement Imposition of easement on undivided property
consistent with his right as such and subject to termination upon the  The creation of a voluntary easement on property owned in common
extinguishment of the usufruct. requires the unanimous consent of all the co-owners, because it
involves an act of alteration and not merely an alienation of an ideal
Voluntary easements not contractual share of a co-owner.
 Voluntary easements are not contractual in nature, they constitute the  The consent may be given separately or successively.
act of the owner.  Once consent is given by a co-owner, the same is binding upon him and
his successors unless his consent was vitiated.
Art. 689. The owner of a tenement or piece of land, the usufruct of  After the consent of the last of all of the co-owners has been secured, it
which belongs to another, may impose thereon, without the consent of is not necessary for him to give again his consent.
the usufructuary, any servitudes which will not injure the right of
usufruct. (595) Art. 692. The title and, in a proper case, the possession of an easement
acquired by prescription shall determine the rights of the dominant
Where property held in usufruct estate and the obligations of the servient estate. In default thereof, the
 The owner of property in usufruct may create easements thereon easement shall be governed by such provisions of this Title as are
without the consent of the usufructuary provided the rights of the latter applicable thereto. (598)
are not impaired.
Rules governing voluntary easements…ano nga ba?
Art. 690. Whenever the naked ownership of a tenement or piece of land 1. If created by title, such as contract, will, etc, then by such title;
belongs to one person and the beneficial ownership to another, no 2. If created by prescription, by the form and manner of possession of the
perpetual voluntary easement may be established thereon without the easement (see Art 632); and
consent of both owners. (596) 3. In default of the above, by the provisions of the Civil Code on easement.

Creation of perpetual voluntary easement Art. 693. If the owner of the servient estate should have bound himself,
 A usufructuary may impose on the estate held in usufruct a temporary upon the establishment of the easement, to bear the cost of the work
easement. required for the use and preservation thereof, he may free himself from
 Where the naked ownership and the beneficial ownership of the estate this obligation by renouncing his property to the owner of the
belong to different persons, and the easement is perpetual (permanent dominant estate. (599)
right of way, etc), the consent of both the naked owner and the
beneficial owner is required.

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Where servient owner bound himself to bear cost of maintenance of 2. Annoys or offends the senses
easement 3. Shocks, defies or disregards decency or morality
 This article applies only where the owner of the servient estate bound 4. Obstructs or interferes with the free passage of any public highway
himself to bear the cost of the work required for the use and or street, or any body of water
preservation of the easement 5. Hinders or impairs the use of property.
 He is bound to fulfill the obligation he has contracted in the same way
that such an owner, should he make use of the easement, is bound to Distinguish nuisance from trespass
contribute to the works necessary for the use and preservation of the  Nuisance consists of a use of one’s own property in such a manner as
servitude. to cause injury to the property or other right or interest of another, and
 The servient owner may free himself from his obligation by renouncing generally results from the commission of an act beyond the limits of the
or abandoning his property to the dominant owner. property affected
o The renunciation need not be over the whole servient  Trespass is a direct infringement of another’s right of property
tenement, but only on the portion thereof affected by the  Where there is no actual physical invasion of the plaintiff’s property, the
easement (right of way, etc). however, if the easement affects cause of action is for nuisance rather than trespass. An encroachment
the entire servient estate (like natural drainage), then the upon the space about another’s land but not upon the land itself is a
renunciation must be total. nuisance, and not a trespass.
o In any case, it cannot be tacit or implied; it must follow the form  In trespass, the injury is direct and immediate; in nuisance, it is
required by law for transmission of ownership of real property. consequential.

Distinguish nuisance from negligence

Nuisance Negligence
TITLE EIGHT
Basis of Regardless of the Want of care
NUISANCE breach of duty degree of care or skill
Violation of An absolute duty, the A relative duty, the failure to use
Art. 694. A nuisance is any act, omission, establishment, business, doing of an act which is the degree of care required
condition of property, or anything else which: wrongful in itself under particular circumstances
(1) Injures or endangers the health or safety of others; or in connection with an act or
(2) Annoys or offends the senses; or 
 omission which is not of itself
(3) Shocks, defies or disregards decency or morality; or 
 wrongful
(4) Obstructs or interferes with the free passage of any public
 Where the damage is the necessary consequence of what the
highway or street, or any body of water; or
defendant is doing, or is incident to the business itself or the manner in
(5) Hinders or impairs the use of property.
which it is conducted, the law of negligence has no application, and the
law of nuisance applies.
What is the statutory definition of nuisance?
 In fine, nuisance is wrongful in itself because of the injury caused
 Nuisance is used to refer either to the harm caused or that which regardless of the presence or absence of care, while negligence creates
causes harm, or both liability because of want of proper care resulting to another’s injury.
 Negligence is not an essential ingredient of a nuisance but to be liable
for a nuisance, there must be resulting injury to another in the Case doctrines
enjoyment of his legal rights.  Noise becomes actionable only when it passes the limits of reasonable
 Anything which: (IASOH) adjustment to the conditions of the locality and of the needs of the
1. Injures or endangers the health or safety of others maker to the needs of the listener. Injury to a particular person in a

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peculiar position will not render the noise an actionable nuisance – in  A nuisance may be both public and private in character. Hence, there
the condition of present living, noise seems inseparable from the are mixed nuisances. It may violate public rights to the injury of many,
conduct of many necessary occupations. while producing special injury to private rights to any extent beyond the
 The test to determine noise as nuisance is whether rights of property, injury to the public.
health or comfort are so injuriously affected by the noise that the
sufferer is subjected to a loss which goes beyond the reasonable limit What is a nuisance per se?
imposed upon him by the condition of living.  Nuisance per se is an act, occupation, or structure which
 The determining factor when noise alone is the cause of complaint is unquestionably is a nuisance at all times and under any circumstances,
not its intensity or volume, but it is that the noise is of such character as regardless of location or surroundings.
to produce actual physical discomfort and annoyance to a person of  It is that which affects the immediate safety of persons and property.
ordinary sensibilities, rendering adjacent property less comfortable and (Telmo v Bustamante)
valuable. (AC Enterprises v Frabelle)  It is a nuisance of itself because of its inherent qualities, productive of
 A negligent or intentional act may constitute a nuisance. Where, after injury or dangerous to life or property without regard to circumstance.
complaint and notice of damage, the defendant continues to offend and  Example: A house of prostitution.
refuses to correct or discontinue the nuisance, it is intentional.
What is a nuisance per accidens?
Art. 695. Nuisance is either public or private. A public nuisance affects  It is an act, occupation, or structure, not a nuisance per se, but which
a community or neighborhood or any considerable number of persons, may become a nuisance by reason of circumstances, location, or
although the extent of the annoyance, danger or damage upon surroundings.
individuals may be unequal. A private nuisance is one that is not  Example: raising of pigs in a house within city limits.
included in the foregoing definition.
Nuisance per se Nuisance per accidens
What is a public nuisance? In terms of The thing becomes a Depends upon its location and
 A public nuisance has been defined as proof nuisance as a matter of surroundings, the manner of
o the doing of or the failure to do something that injuriously law its conduct or other
affects safety, health or morals of the public, or Its existence need only be circumstances.
o works some substantial annoyance, inconvenience, or injury to proved in any locatlity, Proof of the act and its
the public. without showing specific consequences is necessary.
damages, and the right to It must be shown by evidence
What is a private nuisance? relief is established by to be a nuisance under the
 A private nuisance has been defined as one which violates only private averment and proof of the law.
rights and produces damage to but one or a few personas, and cannot mere act.
be said to be public. In terms of May be summarily abated Even the municipal
Public Private action under the undefined law of authorities, under their power
Affects Public at large, or such of The individual or a limited necessity to declare and abate
them as may come in number of individuals only nuisances, would not have the
contact with it right to compel the abatement
Remedies Indictable Actionable, either for their of a particular thing or act as a
abatement or for damages, nuisance without reasonable
or both notice to the person alleged to
be maintaining or doing the

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same at the time and place of or possessor is liable therefor in the same manner as the one who
hearing before a tribunal created it.
whether such a thing
constitutes a nuisance  Generally, only the creator of a nuisance is liable for the damge
resulting therefrom.
Case doctrines  However, since the injurious effect of a nuisance is a continuing one,
 The operation of bus terminals is a legitimate business which, by itself, every successive owner or possessor of property constituting a
cannot be said to be injurious to the rights of property, health, or comfort nuisance who fails or refuses to abate it, has the same liability as the
of the community. Unless a thing is nuisance per se, it may not be original owner.
abated via an ordinance, without judicial proceedings. (Lucena v JAC  But of course, the new owenr must have actual knowledge of the
Liner) nuisance.
 The abatement of a nuisance without judicial proceedings is possible
only if it is a nuisance per se. A gas station is not a nuisance per se or Art. 697. The abatement of a nuisance does not preclude the right of
one affecting the immediate safety of persons and property. Hence, it any person injured to recover damages for its past existence.
cannot be closed down or transferred summarily to another location.
(Parayno v Jovellanos) Are the remedies exclusive?
 Injury must not be merely perceived, but must be factual. (Parayno)  No.
 The action to abate nuisance and the action to recover damages are
What is the doctrine of attractive nuisance? distinct remedies either or both of which the plaintiff may pursue at his
 One who maintains on his premises dangerous instrumentalities or election.
appliances of a character likely to attract children in play, and who fails  The two remedies are concurrent and not exclusive.
to exercise ordinary care to prevent children from playing therewith or  The owner of property abated as a nuisance is not entitled to
resorting thereto, is liable to a child of tender years who is injured compensation unless he can show that the abatement is unjustified.
thereby, even if the child is technically a trespasser in the premises.
 The reason is that the condition or appliance in question although its Art. 698. Lapse of time cannot legalize any nuisance, whether public or
danger is apparent, is so enticing to children of tender years as to private.
induce them to approach or use it.
 The attractiveness is an implied invitation to such children  General rule: The right to bring an action to abate a public or private
 EXCEPTION: is not applicable to bodies of water, artificial or natural in nuisance is not extinguished by prescription. Lapse of time cannot be
the absence of some unusual condition or artificial feature other than relied upon to legalize a nuisance, whether public or private.
the mere water and its location.  Exception: See Art 631 (2) which expressly prescribes that easements
o A swimming pool is not a nuisance. are extinguished by obstruction and non-use for ten years. (check
o A tank of water from an ice plant is not a nuisance as well. book,P558)
(Hidalgo case)
o What if Jollibee is in the middle of the swimming pool?! Art. 699. The remedies against a public nuisance are:
 Exercise due diligence. Tanggalin yung bubuyog na (1) A prosecution under the Penal Code or any local ordinance: or
yan! (2) A civil action; or
(3) Abatement, without judicial proceedings.
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 What are the remedies against a public nuisance?
1. Prosecution under the Penal Code or any local ordinance

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2. A civil action 
3. Abatement, without judicial proceedings. Art. 703. A private person may file an action on account of a public
 These are not exclusive but cumulative. nuisance, if it is specially injurious to himself.
 All of them may be availed of by public officers, and the last two, by
private persons, if the nuisance is especially injurious to the latter. Does a private person have a right to file action on account of a public
nuisance?
Abatement without judicial proceedings  Certainly!
 The summary abatement of nuisance without judicial proceedings is  A private person may also file a civil action if the public nuisance is
recognized and established even in the absence of statute on the especially injurious to himself. In other words, the nuisance becomes as
ground that the requirement of preliminary formal legal proceedings and to him a private nuisance affecting him in a special way different from
a judicial trial would result in defeating the beneficial object sought to be that sustained by the public in general.
obtained.  In the absence of a showing of special or unusual damages, differing
 Police power of the state includes the right to destroy or abate by a from those suffered by the general public, a cause of action does not
summary proceeding whatever may be regarded as a public nuisance, arise in favor of a private individual
subject to constitutional limitations.  An action may be maintained by one who is not the sole or even a
 Property taken or destroyed for the purpose of abating a nuisance is not peculiar sufferer, if his grievance is not common to the whole public, but
taken for public use, and there is accordingly no obligation to make is a common misfortune of a number or even a class of persons.
compensation for such taking.
Art. 704. Any private person may abate a public nuisance which is
Art. 700. The district health officer shall take care that one or all of the specially injurious to him by removing, or if necessary, by destroying
remedies against a public nuisance are availed of. the thing which constitutes the same, without committing a breach of
the peace, or doing unnecessary injury. But it is necessary:
Art. 701. If a civil action is brought by reason of the maintenance of a (1) That demand be first made upon the owner or possessor of the
public nuisance, such action shall be commenced by the city or property to abate the nuisance;
municipal mayor. (2) That such demand has been rejected;
(3) That the abatement be approved by the district health officer and
Art. 702. The district health officer shall determine whether or not executed with the assistance of the local police; and
abatement, without judicial proceedings, is the best remedy against a (4) That the value of the destruction does not exceed three thousand
public nuisance. pesos.

What is the role of the district health officer and others with respect to public What are the conditions for extrajudicial abatement of a public nuisance?
nuisance?  The party injured may remove, and if necessary, destroy thing which
 The district health officer is charged with the duty to see to it that one or constitutes the nuisance without committing a breach of the peace, or
all of the remedies against a public nuisance are availed of. doing unnecessary damage.
 Article 702 does not empower the district health officer to abate a public  What should be done?
nuisance to the exclusion of all other authorities. His power is simply to 1. Demand be first made upon the owner or possessor of the
determine whether or not abatement, without judicial proceedings, is the nuisance
best remedy against a public nuisance. 2. Demand must have been rejected
 The action must be commenced by the city or municipal mayor. But a 3. Abatement be approved by the district health officer and executed
private person may also file an action if the public nuisance is especially with the assistance of the local police
injurious to him. 4. The value of the destruction does not exceed P3000.

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Art. 705. The remedies against a private nuisance are: Art. 712. Ownership is acquired by occupation and by intellectual
(1) A civil action; or creation.
(2) Abatement, without judicial proceedings. Ownership and other real rights over property are acquired
and transmitted by law, by donation, by estate and intestate
Art. 706. Any person injured by a private nuisance may abate it by succession, and in consequence of certain contracts, by tradition.
removing, or if necessary, by destroying the thing which constitutes They may also be acquired by means of prescription. (609a) 

the nuisance, without committing a breach of the peace or doing
unnecessary injury. However, it is indispensable that the What is mode?
procedure for extrajudicial abatement of a public nuisance by a private  Mode is the specific cause which produces them as the result of the
person be followed. presence of a special condition of things, of the capacity and intention of
persons, and of the fulfillment of the requisites established by law.
What are the remedies against a private nuisance?
1. Civil action What is title?
2. Abatement, without judicial proceedings.  Title is the juridical act, right or condition which gives the means to their
acquisition but which in itself is insufficient to produce them.
 In abating a nuisance, a person may even go to the extent of destroying
the damn thing which constitutes the nusicance provided:
a. He commits no breach of the peace nor causes  In a contract of sale, the contract is the title and tradition, as a
unnecessary injury, and consequence of sale, is the mode.
b. The procedure for extrajudicial abatement of public  Sometimes, the mode is at the same time the title (as in with
nuisance prescribed in 704 is complied with succession)

Art. 707. A private person or a public official extrajudicially abating a Mode Title
nuisance shall be liable for damages: Directly and immediately produces a Serves merely to give the occasion
(1) If he causes unnecessary injury; or real right for its acquisition or existence
(2) If an alleged nuisance is later declared by the courts to be not a real The cause The means
nuisance. Proximate cause Remote cause
Essence of the right which is to be The means whereby that essence is
Is there liability for damages in case of extrajudicial abatement? created or transmitted transmitted
 Yeeeeeeees!
 A private or public officer may be held liable for damages.  Contracts only constitute titles or rights to the transfer or acquisition of
 The two grounds of which are: ownership, while tradition or delivery is the mode of accomplishing the
a. Unnecessary injury same.
b. The alleged nuisance is later declared by the courts to be
not a real nuisance. What are the different modes and titles of acquiring ownership and other real

 rights? (OLDTIPS)
BOOK III 1. Original modes or those independent of any pre-existing right of another
DIFFERENT MODES OF ACQUIRING OWNERSHIP person, namely:
a. Occupation (condition of being without known owner); and
PRELIMINARY PROVISION

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b. Work which includes intellectual creation (creation, i. Pre-existence in the estate of the grantor of the right to be
discovery, or invention) transmitted
2. Derivative modes or those based on a pre-existing right held by another ii. Just cause or title for the transmission
person, namely: iii. Intention on the part of the grantor to grant and on the part of
a. Law (existence of required conditions) the grantee to acquire
b. Donation (contract of parties) iv. Capacity to transmit and to acquire
c. Succession, estate and intestate (death) v. An act which gives it outward form, physically, symbolically or
d. Tradition, as a consequence of certain contracts (contract legally
of the parties), and  Purpose: non nudis pactis, sed traditione dominia rerum transferuntur.
e. Prescription (possession in the concept of owner) Ownership is transferred, among other means, by tradition. The delivery
of a thing constitutes a necessary and indispensable requisite for the
 The derivative modes are modes both for the acquisition and purpose of acquiring the ownership of the same by virtue of a contract.
transmission of ownership and other real rights. The transmission may  Kinds:
involve a right in its entirety, or only a part thereof (pledge, mortgage, a. Real tradition
usufruct). b. Constructive tradition
 Registration is not a mode of acquiring ownership, and other real rights i. Symbolic
but only a means of confirming the fact of their legal existence with ii. Tradition by public instrument
notice to the world at large. iii. Traditio longa manu
iv. Tradition brevi manu
Law as a mode of acquisition? v. Tradition constitutum possessorium
 When the Civil Code speaks of law as a mode of acquisition, it refers to c. Quasi tradition
it as a distinct mode or to those cases where the law, independent of d. Tradition by operation of law
the other modes, directly vest ownership of a thing in a person once the
prescribed conditions or requisites are present or complied with. What do you actually deliver?
 Examples:  Ownership, possession and control of the subject matter.
1. Hidden treasure
2. Art 445 What if the vendor points to the vendee a certain house which he already
3. River beds (Art 461) sold to the vendee, but there are security guards roaming around the lot?
4. Art 466  No tradition. (Ask Jaymie Reyes.)
5. Art 681
6. Art 1434 Case doctrines
7. Art 1456  A stranger to the succession of a dead person cannot conclusively claim
ownership over the subject lot on the sole basis of the waiver document
Tradition as a mode of acquistion which neither recites the elements of either a sale, or a donation, or any
 Tradition is a derivative mode of acquiring ownership and other real other derivative mode of acquiring ownership. (Acap v CA)
rights by virtue of which, there being intention and capacity on the part  An affidavit not accompanied by any instrument showing the sale
of the grantor and grantee and the pre-existence of said rights in the between a purported vendor and vendee is not a basis of ownership.
estate of the grantor, they are transmitted to the grantee through a just (Heirs of dela Cruz v Heirs of Quintos)
title. (whut?)  For lands of public domain, in order to acquire it by prescription, there
 Requisites: must be a declaration of the State that it’s alienable and disposable and

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

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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 Art. 719. Whoever finds a movable, which is not treasure, must return it
damage. If the owner has not pursued the swarm, or ceases to do so to its previous possessor. If the latter is unknown, the finder shall
within two consecutive days, the possessor of the land may occupy or immediately deposit it with the mayor of the city or municipality where
retain the same. The owner of domesticated animals may also claim the finding has taken place.
them within twenty days to be counted from their occupation by The finding shall be publicly announced by the mayor for two
another person. This period having expired, they shall pertain to him consecutive weeks in the way he deems best.
who has caught and kept them. (612a) If the movable cannot be kept without deterioration, or without
expenses which considerably diminish its value, it shall be sold at
 This article talks of domesticated, not domestic animals. public auction eight days after the publication.
 With respect to domestic animals, he can claim them even beyond Six months from the publication having elapsed without the
twenty days from their occupation unless there is abandonment on his owner having appeared, the thing found, or its value, shall be awarded
part. to the finder. The finder and the owner shall be obliged, as the case
 This article does not apply to a case where a person has found a may be, to reimburse the expenses. (615a)
domestic animal and kept it for a number of years not knowing its
owner. Art. 720. If the owner should appear in time, he shall be obliged to pay,
 A domesticated animal which has not strayed or been abandoned as a reward to the finder, one-tenth of the sum or of the price of the
cannot be acquired by occupation by a person to whose custody it was thing found. (616a)
entrusted 

 The periods of two days and twenty days are not periods of limitation,  See codal for rules. Fairly simple.
but conditions precedent to recovery.  This article is based on the fact that one who lost his property does not
necessarily abandon it. If there is no abandonment, the lost thing has
Art. 717. Pigeons and fish which from their respective breeding places not become res nullius.
pass to another pertaining to a different owner shall belong to the  Paragraph 4 contemplates implied abandonment.
latter, provided they have not been enticed by some article of fraud.
(613a) Title II. - INTELLECTUAL CREATION

 This article does not refer to wild pigeons and fish in a state of liberty or Art. 721. By intellectual creation, the following persons acquire
that live naturally independent of man. Their occupation is regulated by ownership:
Art 715. (1) The author with regard to his literary, dramatic, historical,
 What is contemplated here are pigeons and fish considered as legal, philosophical, scientific or other work;
domesticated animals subject to the control of man in private breeding (2) The composer; as to his musical composition; 

places. (3) The painter, sculptor, or other artist, with respect to the
 The pigeons and fish must change their breeding place to another product of his art; 

belonging to a different owner. (4) The scientist or technologist or any other person with
 Unless enticed by some artifice or fraud, the shall belong to the owner regard to his discovery or invention. (n)
of the breeding place to which they shall have transferred.
Art. 722. The author and the composer, mentioned in Nos. 1 and 2 of
Art. 718. He who by chance discovers hidden treasure in another's the preceding article, shall have the ownership of their creations even
property shall have the right granted him in article 438 of this Code. before the publication of the same. Once their works are published,
(614) their rights are governed by the Copyright laws.

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The painter, sculptor or other artist shall have dominion over aware of the acceptance by the donee, provided that the donee is not
the product of his art even before it is copyrighted. disqualified or prohibited by law from accepting the donation.
The scientist or technologist has the ownership of his  Once accepted, it is generally considered irrevocable, and the donee
discovery or invention even before it is patented. (n) becomes owner of property, except:
1. on account of officiousness,
Art. 723. Letters and other private communications in writing are 2. failure of the donee to comply with the charge imposed on the
owned by the person to whom they are addressed and delivered, but donation,
they cannot be published or disseminated without the consent of the 3. or ingratitude.
writer or his heirs. However, the court may authorize their publication  The effect of donation is to reduce the patrimony or asset of the donor
or dissemination if the public good or the interest of justice so and to increase that of the donee. Hence, the giving of a mortgage or
requires. (n) any other security does not constitute a donation.

Art. 724. Special laws govern copyright and patent. (429a) 
 Requisites of donation
1. Donor must have capacity to make the donation of a thing or right
Title III. - DONATION 2. Donative intent (animus donandi) or intent to make the donation out of
liberality to benefit the donee
CHAPTER ONE 3. There must be delivery, whether actual or constructive
4. Donee must accept or consent to the donation.
NATURE OF DONATIONS
 In certain donations, the form prescribed by law must be followed (See
Art. 725. Donation is an act of liberality whereby a person disposes
Art 748-749)
gratuitously of a thing or right in favor of another, who accepts it.
(618a)  The subject matter of a donation may be a thing or right. A person may
be a donee although he is incapacitated to enter into a contract if he is
Concept of donation not specially disqualified by law to accept donations.
 In its generic sense, the term donation includes all forms of gratuitous  Not enough that the act is gratuitous, there must be an intent to benefit
the donee.
dispositions.
 The donation the article speaks of and which is governed by Title Three  The acceptance or consent of the donee is required because no once
is the donation proper or the true (or real) donation, or ordinary can be obliged to receive a benefit against his will.
donation.
Case doctrines
What is the nature and effect of donation?  The essential elements of donation are as follows:
 Although Art 725 defines donation as an act, it is really a contract, with o Essential reduction of the patrimony of the donor
all the essential requisites of a contract. o Increase in the patrimony of the donee
o The intent to do an act of liberality or animus donandi (Heirs of
 It falls under contracts of pure beneficence, the consideration being the
Florencio v Heirs of de Leon)
mere liberality of the benefactor.
 In order that the donation of an immovable property may be valid, the
 The Civil Code considers donation not among the contracts that transfer
deed of donation must be made in a public document. The acceptance
ownership but as a particular mode of acquiring and transmitting
must be in a public document as well. (Heirs of Florencio)
ownership.
 Registration of the deed in the Office of the RD or in the Assessor’s
 As a mode of acquiring ownership, donation results in an effective
Office is not necessary for it to be considered valid and official.
transfer of title over the property from the moment the donor is made
Registration does not vest title. The necessity of registration comes into

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play only when the rights of third persons are affected. Furthermore, the b. Remuneratory or compensatory; or that which is given out
heirs are bound by the deed of contracts executed by their of gratitude on account of the services rendered by the
predecessors-in-interest. (Heirs of Florencio) donee to the donor, provided they do not constitute a
 A quitclaim is not a donation where those who executed the same demandable debt
merely acknowledged the ownership of and better right over the lot by c. Modal or that which imposes upon the donee a burden
other persons. (Heirs of Reyes v Calumpang) (services to be performed in the future) less than the value
 Acceptance is necessary in a donation. This applies to all kinds of of the gift
donations because the law does not make any distinction. A donation d. Onerous or that the value of which is considered the
mortis causa takes effect only after the death of the donor, consequently equivalent of the consideration for which it is given, or that
it is only after the latter’s death that its acceptance maybe made. (Vita v made for a valuable consideration, and is thus governed
Montanano) by the rules on oblicon
 Prudent thing to do when drafting deeds of donation: Place an 3. As to effectivity or extinguishment
acceptance clause. So, if court considers it inter vivos, then it would a. Pure
have been accepted. If court considers it mortis causa, then the clause b. Conditional
would be a mere superfluity, still open to the acceptance of the donee c. With a term
upon the death of the donor. (Atty Abrenica)
 The purpose of the formal requirement for acceptance of a donation is Tell me more about remuneratory donations
to ensure that such acceptance is duly communicated to the donor. The  In this kind of donation, the motivating cause is gratitude,
actual knowledge by the donor of the construction and existence of the acknowledgment of a favor, a desire to repay for past services
school building pursuant to the condition of the donation fulfills the legal  A donation given for future services cannot be remuneratory
requirement that the acceptance of the donation by the donee be  It is necessary that the past services do not constitute a demandable
communicated to the donor. (Republic v Silim) debt
o A debt is demandable when it can be legally demanded or enforced
Art. 726. When a person gives to another a thing or right on account of by the donee against the donor who has thus an obligation to pay it.
the latter's merits or of the services rendered by him to the donor, But a debt that has been renounced is not a demandable debt.
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 What about gratuities and pensions?
thing given, there is also a donation. (619)  While technically a gratuity is different from a donation, in substance,
they are the same.
What are the kinds of donation?  A gratuity is similar to a pension and is essentially remunerative
1. As to taking effect: donation.
a. Inter vivos or that which takes effect during the lifetime of
the donor
b. Moris causa or that which takes effect upon the death of Tell me more about modal donations
the donor  In a modal donation, a burden (which is necessarily future) less than the
c. Propter nuptias or that by reason of marriage value of the gift is imposed upon the donee.
2. As to consideration  If the burden is considered the equivalent of the thing or right given,
a. Pure or simple; or that the cause of which is the pure then it’s an onerous donation.
liberality of the donor in consideration of the donee’s  The burden may consist in a real or personal charge which is capable of
merits being valued in terms of money.

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What are donations with mixed features?

 Strictly speaking, remuneratory donations are those which are given on Art. 727. Illegal or impossible conditions in simple and remuneratory
account of services rendered by the donee to the donor. donations shall be considered as not imposed. (n)
 Modal donations are conditional only in the sense that a burden, charge,
condition or limitation is imposed y the donor but the burden is not What’s the effect of illegal or impossible conditions?
technically a condition in the sense of an uncertain event upon which  Under Article 727, the illegal or impossible condition in a simple or
the effectitivy or extinguishment of donation is made to depend for it is remuneratory donation would be deemed not imposed following the rule
really a mere obligation imposed by the donor upon the donee as a on testamentary dispositions. The donation will be considered as
consideration simiple.
 Actually, a modal donation has dual nature, it is partly onerous and  If the donation is onerous (or modal, as to its onerous portion), the
partly simple – the portion equivalent to the burden is onerous and is illegal or impossible condition shall render it void. Being contractual in
governed by the rules on obligations and contracts, while the portion nature, the rule applicable would be that found in Article 1183 (check
exceeding the value of the burdens imposed, is simple and must follow codal, if divisible, only condition will be void)
the form of donations.
Case doctrine
Harry donates to Ron a parcel of land worth 300 galleons2 but Ron has to  The prohibition in the deed of donation against the alienation of the
give another parcel of land or perform some service worth 100 galleons, the property for 100 years should be declared as an illegal or
transaction is onerous as the 100 galleons which must be in the form of a impossible condition within the contemplation of Article 727.
contract of barter or exchange, and simple as to the 200 galleons which Consequently, such condition shall be considered as not imposed.
must follow the form of donations. No reliance may accordingly be placed on said prohibitory
paragraph in the deed of donation. (Archbishop of Manila v CA)
Case doctrines
 An onerous donation is that which imposes upon the donee a reciprocal Art. 728. Donations which are to take effect upon the death of the
obligation, or to be precise, this is the kind of donation made for a donor partake of the nature of testamentary provisions, and shall be
valuable consideration, the cost of which is equal to or more than the governed by the rules established in the Title on Succession. (620)
thing donated. (CJ Yulo v Roman Catholic Bishop of San Pablo)
 Since onerous donations are governed by the rules of contracts, the Art. 729. When the donor intends that the donation shall take effect
prescription period is 10 years (based on a written contract), and not the during the lifetime of the donor, though the property shall not be
4-year period based on Article 764 (revocation must be brought within 4 delivered till after the donor's death, this shall be a donation inter
years from the non-compliance of the conditions of the donation). (De vivos. The fruits of the property from the time of the acceptance of the
Luna v Abrigo) donation, shall pertain to the donee, unless the donor provides
 Remuneratory donation is one where the donee gives something to otherwise. (n)
reward past or future services or because of future charges or burdens,
when the value of said services, burdens or charges is less than the Inter vivos Mortis causa
value of the donation. (De Luna -> this definition seems wrong as it Takes effect during the lifetime of the Takes effect upon the death of the
includes future charges, which are necessarily modal) donor, independently of his death, donor testator, so that nothing is
even if the actual execution may be conveyed to or acquired by the
deferred until said death donee until said death
Made out of the donor’s pure Made in contemplation of his death
2
As of July 2006, the galleon-dollar exchange rate was 1:16.72. It hasn’t gone below
generosity without the intention to lose the thing
1:15 ever since. Wala lang, boring ng property eh. Harry Potter na lang.
or its free disposal in case of survival

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Valid if the donor survives the donee Void should the donor survive the Why is it important to make a distinction between inter vivos and mortis
donee causa?
Must follow formalities of donations Must follow formalities for the validity  The distinction between a transfer inter vivos and mortis causa is
of a will, otherwise void important as the validity or revocation of the donation depends upon its
Accepted by the donee during his Accepted only after the donor’s nature.
lifetime death  If the donation is inter vivos, it must be executed and accepted with the
Cannot be revoked except for Always revocable at any time and for formalities prescribed by Articles 748 and 749, except when it is
grounds provided by law (See 760, any reason before the donor’s death onerous in which case the rules on contracts apply.
765) (revocable ad nutum – at the  If it is mortis causa, the donation must be in the form of a will, with all
discretion of the grantor) the formalities for the validity of wills, otherwise it is void and cannot
Right to dispose of the property is Right is retained by the donor while transfer ownership. Moreover, mortis causa can be revoked any time
completely conveyed to the donee he is still alive before the death of the donor. (Ganuelas v Cawed)
Subject to donor’s tax Subject to estate tax
What clauses are found in a deed of donation?
1. Habendum or warranty clause (wherein grantor transfers
Designation given to donations not conclusive ownership)
 Did the donor intend to transfer ownership of the property donated upon 2. Redendum or reservation clause (wherein grantor reserves
the execution of the donation? If yes, then it is inter vivos. If not, then, it something new to himself)
is merely mortis causa. 3. Acceptance clause
 “To take effect at the death of the creditor” does not automatically make
it mortis causa. Such statements must be construed with the rest of the Case doctrines
instrument.  It is a settled rule that the title given to a deed of donation is not the
determinative factor which makes the donation inter vivos or mortis
Donations to be delivered after the donor’s death causa.
 A distinction must be made between the actual donation and the  In case of doubt, the conveyance should be deemed donation inter
execution thereof vivos rather than mortis causa, in order to avoid uncertainty as to the
 That the donation is to have effect during the lifetime of the donor does ownership of the property subject of the deed. (Puig v Penaflorida – but
not mean that the delivery of the property must be made during his life. see book which cites the same case but says the opposite)
 Article 729 speaks of donations in praesenti which take effect during the  Donations inter vivos are immediately operative, even if the actual
lifetime of the donor but the property shall be delivered after the donor’s execution may be deferred until the death of the donor. Mortis causa,
death. nothing is conveyed to the grantee and nothing is acquired by the latter,
 Such are inter vivos although the subject matter is not delivered at until the death of the grantor-testator, the disposition being until then
once, or the delivery is to be made post mortem, which is a simple ambulatory and not final. (Puig)
matter of form and does not change the nature of the act.  Acceptance clause is a mark that the donation is inter vivos.
 The fruits shall belong to the donee from the time of acceptance unless Acceptance is a requirement for donations inter vivos. Donations moris
otherwise provided by the donor. causa are not required to be accepted by the donees during the donors’
lifetime. (Gestopa v CA)
Instances  A limitation on the right to sell during the donors’ lifetime implied that
ownership had passed to the donees and donation was already
effective during the donors’ lifetime. (Gestopa)

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o Reiterated in Alejandro v Geraldez: Condtion that donees

cannot sell during donors’ lifetime to a third person the donated Art. 731. When a person donates something, subject to the resolutory
property implies immediate passage of ownership and, condition of the donor's survival, there is a donation inter vivos. (n)
therefore donation is inter vivos.
 The reservation of lifetime usufruct indicates that the donor intended to Donation inter vivos subject to a resolutory condition
transfer the naked ownership over the properties, thus making it inter  In these cases, the ownership of the donated property is immediately
vivos. (Gestopa) transferred to the donee upon perfection of the donation once
 Factors in determining whether a donation is one of mortis causa: acceptance by the donee is made known to the donor.
1. It conveys no title or ownership to the transferee before the death of  A donation subject to a resolutory condition takes effect immediately but
the transferor; or what amounts to the same thing, that the shall become inefficacious upon the happening of the event which
transferor should retain the ownership (full or naked) and control of constitutes the condition.
the property while alive;  Even if the donation is subject to the resolutory condition of the donor’s
2. The before his death, the transfer should be revocable by the survival, the donation is still inter vivos.
transferor at will, ad nutum; but revocability may be provided for o I will donate this land to you, but if I survive World War III, I will
indirectly by means of a reserved power in the donor to dispose of get it back. If I survive World War III, the donation is rescinded.
the properties conveyed; and If I don’t make it, then it continues in effect.
3. That the transfer should be void if the transferor should survive the
transferee (Maglasang v Heirs of Corazon Cabatingan) Art. 732. Donations which are to take effect inter vivos shall be
 One of the decisive characteristics of a donation mortis causa is that the governed by the general provisions on contracts and obligations in all
transfer should be considered void if the donor should survive the donee that is not determined in this Title. (621)
(Maglasang)
 Donations mortis causa must be executed in accordance with the Art. 733. Donations with an onerous cause shall be governed by the
requisites on solemnities of wills and testaments under Articles 805 and rules on contracts and remuneratory donations by the provisions of
806 of the Civil Code the present Title as regards that portion which exceeds the value of the
burden imposed. (622)
Art. 730. The fixing of an event or the imposition of a suspensive
condition, which may take place beyond the natural expectation of life Rules governing onerous donations or onerous portions of donations
of the donor, does not destroy the nature of the act as a donation inter  This article makes the rules of contracts directly applicable to onerous
vivos, unless a contrary intention appears. (n) donations and to remuneratory donations as to the onerous portion
thereof
Donation inter vivos subject to suspensive condition  Onerous donations are donations for a valuable consideration. They
 This article contemplates a situtation where the donor intends the include those purely onerous or those in which the consideration is
donation to take effect during his lifetime but he imposes suspensive considered the equivalent of the property donated and the modal but
condition which may or may not take place beyond his lifetime. only as regards that portion thereof considered the equivalent of the
 The fact that the event happens or the condition is fulfilled after the value of the burden imposed.
donor’s death does not change the nature of the act as a donation inter  Remuneratory donations are true or simple donations because the
vivos. consideration is really the liberality of the donor since the services
 The effect of the fulfillment of the suspensvie condition is retroactive to rendered by the donee do not constitute a recoverable debt. However,
the making of the donation. the special rules on revocation should not apply to the portion of the
 EXCEPTION: when the donor really intended that the donation should donation equivalent to the equitable value of the services received by
take effect after his death. Thus, mortis causa. the donor.

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 The remuneratory donations referred to in Article 733 are the modal

donations or those which impose “upon the donee a burden which is What if there is revocation?
less than the value of the thing given” as regards that portion which  If the donor revokes the donation before learning of the acceptance by
exceeds the value of the burden, it shall be governed by the provisions the donee, there is no donation.
on donations.  But once it is perfected, it cannot be revoked without the consent of the
 There is no burden imposed on remuneratory donations. If a burden is donee except:
imposed, it becomes onerous as regards the value of the burden. 1. Inofficiousness (Art 760)
2. Failure of the donee to comply with the charges imposed in the
Case doctrines donation (Art 764)
 As onerous donations are governed by the rules on contracts, for there 3. Ingratitude (Art 765)
to warrant a revocation of the donation, there must be a substantial
breach of the conditions in the deed. Mere casual breaches will not Is registration necessary?
warrant revocations. (CJ Yulo v RC Bishop)  As between the parties to the donation and their assigns, it is not
 Considering that the donee’s acts did not detract from the very purpose needed for its validity and efficacy. (But it must be in a public document
for which the donation was made but precisely to achieve such purpose for immovables!)
(of the donation), a lack of prior written consent of the donor (which was  But for third parties to be bound, there must be registration.
a condition of the donation) would only constitute casual breach of the
deed. (CJ Yulo) Case doctrines
 The purpose of the formal requirement for acceptance of a donation is
Art. 734. The donation is perfected from the moment the donor knows to ensure that such acceptance is duly communicated to the donor. The
of the acceptance by the donee. (623) 
 actual knowledge by the donor of the construction and existence of the
school building pursuant to the condition of the donation fulfills the legal
Perfection of donation requirement that the acceptance of the donation by the donee be
 There is no donation without acceptance by the donee. communicated to the donor. (Republic v Silim)
 Acceptance is indispensable because nobody is obliged to receive a
benefit against his will.
 Its absence makes the donation null and void. CHAPTER 2
 The acceptance must be made during the lifetime of the donor and the PERSONS WHO MAY GIVE OR RECEIVE A DONATION
donee.
 Perfection takes place, not from the time of acceptance by the donee, Art. 735. All persons who may contract and dispose of their property
but from the time it is made known, actual or constructively, to the may make a donation. (624)
donor.
 If the donation and acceptance are in the same public instrument, Capacity of donor to contract and dispose of property
signed by both and in the presence of witnesses, the donation is  The donor must have both the capacity to contract and the capacity to
deemed already perfected inasmuch as knowledge of the acceptance is dispose of his property in order that he may make a donation.
established by the instrument itself.  Those who cannot give consent to a contract cannot be donors; and
 If acceptance was made in a separate instrument, there must be proof donation made by one who does not have the free disposal of the thing
that a formal notice of such acceptance was received by the donor, and donated and to alienate it shall not be valid.
in case the donation involves immovable property, noted in both the  It is possible, however, for a person to have capacity to contract but not
deed of donation and the separate instrument embodying the the capacity to dispose of property.
acceptance. (See Art 749)

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o Under the Family Code, every donation between spouses  The donation is perfected from the moment the donor knows of the
during the marriage shall be void except moderate gifts on the acceptance by the donee.
occasion of any family rejoicing. The prohibition applies also to  However, this article seems to imply that the donor’s capacity must exist
persons living together as husband and wife without a valid at the time of making the donation and not from the time of knowledge
marriage, or in illicit relations. by the donor of the acceptance, that is, at the perfection of the act
o Neither spouse may donate any community property nor  A juridical absurdity arises in case the donor has no capacity to act at
conjugal partnership property without the consent of the other, the time the acceptance is conveyed to him. Since legally, the donor
except moderate donations for charity or on occasion of family cannot be said to have knowledge of the acceptance, there can be no
rejoicing or family distress. perfection of the donation which presupposes a meeting of the minds
between the donor and the donee who are both capacitated.
Can corporations make donations?  To avoid the apparent contradiction, the phrase “making of the
 Yes. But they can’t give donations to aid any political party or candidate donation” should be construed to mean “perfection of the donation”
or for purposes of partisan political activity.  Hence, the donation would be valid, although the donor was insane at
the time he signs the deed of donation or informs the donee of the
Who are incapacitated to donate? donation but sane when he learns of the acceptance. The donor may
1. Minors ask for annulment of the donation if he so desires
2. Insane or demented persons  The subsequent incapacity of the donor does not affect the validity of
3. Deaf-mutes who do not know how to write the donation. This is similar to the rule in succession.
4. Corporations (with regard to giving donations to aid any political party)
5. Guardians and trustees (with regard to property entrusted to them) Art. 738. Al those who are not specially disqualified by law therefor
6. Spouses (to each other, except moderate gifts) may accept donations. (625)
7. A spouse (to others without the consent of the other spouse, except
moderate donations) Capacity of the donee
 Generally, all persons, whether natural or artificial, may be donees.
 A donee need not be sui juris, with complete legal capacity to bind
Art. 736. Guardians and trustees cannot donate the property entrusted himself by contract.
to them. (n)
 As long as he is “not specially disqualified by law”, he may accept
donations.
Donation by a guardian or trustee of ward’s property
 So, donations may be made to:
 Generally, guardians and trustees cannot be donors of their ward’s
1. Incapacitated persons such as minors and others who cannot
properties for the simple reason that they are not the owners of the
enter into a contract,
same.
2. and also to conceived and unborn children.
 Exception: With respect to the trustee, donation is permitted
notwithstanding that the trustee receives nothing in exchange directly, if Art. 739. The following donations shall be void:
the donation is onerous and is beneficial to the beneficiary. (1) Those made between persons who were guilty of adultery
or concubinage at the time of the donation;
Art. 737. The donor's capacity shall be determined as of the time of the (2) Those made between persons found guilty of the same
making of the donation. (n) criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
Capacity of donor at time of making the donation ascendants, by reason of his office.

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In the case referred to in No. 1, the action for declaration of  The donation is void, whether made before or after the illicit relations, if
nullity may be brought by the spouse of the donor or donee; and the given in consideration thereof, either as inducement or compensation.
guilt of the donor and donee may be proved by preponderance of  What if the donation is given in contemplation of the termination of the
evidence in the same action. (n) relationship, is the donation still void?
o Since the purpose is praiseworthy, good for all concerned, it should
Donations void on moral grounds be considered valid.
 This article declares null and void ab initio the donations referred to. o This is particularly true when the woman (donee) was a victim of
deceit by the man.
What are the different void donations? o However, where the illicit relation was voluntary, and the donation
1. Between persons who were guilty of adultery and concubinage at was demanded by the woman as a price of the termination of their
the time of the donation relationship, the donation is void.
2. Between persons found guilty of the same criminal offense, in  What if the concubine did not know that the man she lived with was
consideration thereof actually married?
3. Made to a public officer or his wife, descendants and ascendants, o Then she is not guilty of concubinage and not disqualified from the
by reason of his office donation.
4. Between spouses during the marriage, except moderate gifts which
they may give each other on the occasion of any family rejoicing Donations between persons found guilty of the same criminal offense
(Art 87, Family Code)  This rules presupposes prior criminal conviction in a criminal action;
5. Donations of community property by a spouse without the consent hence proof of guilty by mere preponderance of evidence is not
of the other, except moderate donations (Art 98, Family Code) sufficient.
6. Donations of conjugal partnership property by a spouse without the  The donation here is remuneratory or onerous. It is void whether made
consent of the other, except moderate donations (Art 125, Family before or after the commission of the crime if it is in consideration
Code) thereof.
7. Donations to those provided for in Article 740, in cross reference to  It is still void although the crime is not carried out because it is based on
Art 1027 and 1032. an unlawful cause.
8. Donations accepted by agents without special authority to do so
(Art 745) Donations made to a pubic officer, by reason of his office
9. Donations of immovables which don’t conform to the form  Indirect bribery!
prescribed in Art 749 The guilt need not be established by proof beyond reasonable doubt in
a criminal proceeding for bribery.
Donations between persons guilty of adultery and concubinage  A civil action to declare the donation void may be maintained by the
 The civil action for declaration of nullity may be brought after the proper party in interest.
persons involved have been found guilty by final judgment in a criminal  Donations made to persons other than those mentioned are valid,
proceeding of adultery or concubinage. unless, of course, they are intended for the public officer.
 In view of the last paragraph, conviction for adultery or concubinage in a
criminal action is not essential. Art. 740. Incapacity to succeed by will shall be applicable to donations
 The guilt of the donor and the donee may be proved by a mere inter vivos. (n)
preponderance of evidence in a civil proceeding to nullify the donation,
alleging the adultery or concubinage as the cause of action for the Incapacity to succeed by will
declaration of nullity.  This article expressly makes the provisions on incapacity to succeed by
will applicable to donations inter vivos

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 Of course, they are also applicable to donations mortis causa which are 5. Any person convicted of adultery or concubinage with the spouse of
governed by the law on succession the testator; 

 According to Art 1027, the following are incapable of becoming donees: 6. Any person who by fraud, violence, intimidation, or undue influence
1. The priest who heard the confession of the donor during his last should cause the testator to make a will or to change one already
illness, or the minister of the gospel who extended spiritual aid to made;
him during the same period 7. Any person who by the same means prevents another from making
2. The relatives of such priest or minister of the gospel within the a will, or from revoking one already made, or who supplants,
fourth degree, the church, order, chapter, community, organization, conceals, or alters the latter's will; 

or institution to which such priest or minister may belong 8. Any person who falsifies or forges a supposed will of the decedent.
3. A guardian with respect to donations given by a ward in his favor
before the final accounts of the guardianship have been approved, Who are incapable of becoming donees?
even if the donor should die after the approval thereof; 1. Persons guilty of concubinage or adultery at the time of donation (but
nevertheless, any provision made by the ward in favor of the only between them)
guardian when the latter is his ascendant, descendant, brother, 2. Persons found guilty of the same criminal offense, in consideration
sister, or spouse, shall be valid thereof (but only between them)
4. Any physician, surgeon, nurse, health officer or druggist who took 3. Public officers, etc by reason of their office
care of the donor during his last illness 4. Those mentioned in Art 1027
5. Individuals, associations, and corporations not permitted by law to 5. Those mentioned in Art 1032 (unworthy people)
inherit.
 According to Art 1032, there are certain people who are deemed
incapable to inherit by reason of unworthiness. The donation made to a Art. 741. Minors and others who cannot enter into a contract may
person who falls under any of its provisions is valid if the donor had become donees but acceptance shall be done through their parents or
knowledge of the act of unworthiness or having known it subsequently, legal representatives. (626a)
he should condone the same in writing. Even in the absence of pardon,
the donation is not subject to revocation because donations may be Ok, tell me more about donations to minors and others without capacity to
revoked only for causes mentioned in Articles 760, 764 and 765. So, contact
who are these people?  Donation requires acceptance by the donee.
1. Parents who have abandoned their children or induced their  If the donee is a minor or without capacity to enter into a contract, the
daughters to lead a corrupt or immoral life, or attempted against acceptance must be made by the parents or legal representative of the
their virtue; donee.
2. Any person who has been convicted of an attempt against the life  This is especially true if the donation is onerous or imposes a charge or
of the testator, his or her spouse, descendants, or ascendants; 
 burden.
3. Any person who has accused the testator of a crime for which the  It is clear that the donee may not validly accept a donation although it
law prescribes imprisonment for six years or more, if the accusation imposes no burden.
has been found groundless; 
  In any case, when a formal or written acceptance is required by the
4. Any heir of full age who, having knowledge of the violent death of donor, such acceptance must be made by the parents or legal
the testator, should fail to report it to an officer of the law within a representative.
month, unless the authorities have already taken action; this
prohibition shall not apply to cases wherein, according to law, there Art. 742. Donations made to conceived and unborn children may be
is no obligation to make an accusation; 
 accepted by those persons who would legally represent them if they
were already born. (627)

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Who must accept the donation?

Can you donate to conceived and unborn children? 1. The donee personally, or
 Yes! 2. An authorized person or an agent, with a special power for the
 De Leon once again states the obvious by saying, “A conceived and purpose, or with a general and sufficient power
unborn child cannot accept a donation because it is not yet a natural
person.” If not?
 The acceptance must be made by those persons who would legally  Then, the donation is void.
represent them if they were already born.
Does the parent of a minor need a special power for the purpose of
Art. 743. Donations made to incapacitated persons shall be void, accepting a donation? Probably not, a parent is not considered an agent of a
though simulated under the guise of another contract or through a minor. They are considered legal guardians. (But I’m not sure.)
person who is interposed. (628)
Art. 746. Acceptance must be made during the lifetime of the donor and
Who are the incapacitated persons referred to here? of the donee. (n)
 They are those specially disqualified by law to become donees, such as
those in Articles 739 and 740. When should acceptance be made for inter vivos?
 Donations to such persons are void even if simulated under the guise of  A donation inter vivos takes effect during the lifetime of the donor and
another contract or through an intermediary. the donee, and to take effect, it must be accepted by the donee.
 Hence, acceptance by the donee (or his representative) must be made
Art. 744. Donations of the same thing to two or more different donees during his lifetime and that of the donor.
shall be governed by the provisions concerning the sale of the same  Even if the donation is made during their lifetime, but the donor dies
thing to two or more different persons. (n) before the acceptance is communicated to him, the donation is not
perfected.
Donations of the same thing to different donees
 This article expressly makes applicable by analogy the rules on sales3 How about for mortis causa?
of the same thing to two ore more different vendees.  Donations mortis causa are accepted only after the donor’s death
 However, this article has had its sure of criticism. See book. because they partake of a will, and are governed by the rules on
succession.
Art. 745. The donee must accept the donation personally, or through an  If the acceptance was made before the donor’s death, the donation
authorized person with a special power for the purpose, or with a mortis causa although validly executed, cannot be given force and
general and sufficient power; otherwise, the donation shall be void. effect. Such acceptance is void. (But is the donation void? Can there be
(630) a subsequent acceptance after the death of the donor?)

Art. 747. Persons who accept donations in representation of others

 3
“Art. 1544. If the same thing should have been donated to different donees, the ownership
who may not do so by themselves, shall be obliged to make the
shall be transferred to the person who may have first taken possession thereof in good faith, notification and notation of which Article 749 speaks. (631)
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. When does this article apply?
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 1. When acceptance is made through the parents, legal representative, or
oldest title, provided there is good faith.” authorized agent of the donee;
2. The property donated is immovable, and

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3. The acceptance is not made in the same deed of donation but in a If the acceptance is made in a separate instrument, the donor
separate public instrument. shall be notified thereof in an authentic form, and this step shall be
noted in both instruments. (633) 

 The requirement of notification of the donor and notation in both
instruments that such notification has been made is necessary for the Formalities for donation of immovables
validity and perfection of the donation.  This article does not apply to onerous donations since they are
governed by the laws of obligations and contracts
Art. 748. The donation of a movable may be made orally or in writing.  Donation of real property, which is a solemn contract, is void without the
An oral donation requires the simultaneous delivery of the formalities stated in Article 749
thing or of the document representing the right donated.
If the value of the personal property donated exceeds five So, what are the rules?
thousand pesos, the donation and the acceptance shall be made in  When donation and acceptance are in the same instrument, the
writing, otherwise, the donation shall be void. (632a) requirements are:
1. The donation must be in a public document or instrument; and
What are the rules for the formalities for donations for movables? 2. The instrument must specify the property donated and the charges,
 When the value of property exceeds P5000, the donation and the if any, which the donee must satisfy.
acceptance must always be made in writing; otherwise the donation is  When the donation and acceptance are in separate instruments, the
void, even if there is simultaneous delivery of the thing. requirements are:
o The donation and the acceptance need not be made in a public 1. The donation must be in a public document or instrument;
instrument, nor is it necessary that the acceptance be made in the 2. The instrument must specify the property donated and the charges,
same deed of donation. if any, which the donee must satisfy
 When the value of property is P5000 or less, it may be made orally or in 3. The acceptance by the donee must be in a public document
writing. 4. It must be done during the lifetime of the donor
o If made orally, there must be simultaneous delivery of the thing or 5. The donor must be notified in authentic form of the acceptance of
of the document representing the right donated, otherwise, the the donation in a separate instrument; and
donation is void. There must be acceptance which may be oral or 6. The fact that such notification has been made must be noted in
written. The receipt of the delivery by the donee constitutes implied both instruments.
acceptance. o But see the Rep v Silim case wherein the notification was not
o If made in writing, the donation is valid although there is no noted in the instrument, but still, the SC ruled that the donation
simultaneous delivery. Again, there must be acceptance which may was valid.
also be made orally or in writing.
 In every case, the acceptance of the donee must be made known to the  The donation of real property in a private instrument is null and void,
donor for perfection of a donation to take place. and the donee may not compel the donor to execute a public instrument
(1357) which applies only when the contract or donation is valid and
Art. 749. In order that the donation of an immovable may be valid, it enforceable. The donation cannot be ratified.
must be made in a public document, specifying therein the property  Registration is not necessary for the donation to be considered valid
donated and the value of the charges which the donee must satisfy. and effective.
The acceptance may be made in the same deed of donation or  From the time the public instrument of donation is simultaneously
in a separate public document, but it shall not take effect unless it is executed and acknowledged by the donor and the donee, the latter
done during the lifetime of the donor. acquires the ownership of the donated property, since the execution of a
public instrument of conveyance is one of the recognized ways in which

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tradition of immovable property may be made, unless the contrary is himself and of all relatives who are entitled to be supported by him at
expressed or inferable from the terms of the deed. the time of the perfection of the donation
 Title to immovable property does not pass from the donor to the donee  Present property means property which the donor can rightfully dispose
by virtue of donation until and unless it has been accepted in public of at the time of the donation.
instrument and the donor duly notified thereof. o The share in an existing inheritance is present property
 Where the donation is on its face absolute and unconditional, it is error although the heir has not yet entered into the possession of the
to imply that the possession or usufruct is excluded from the donation or same.
the donation is subject to any charge or burden. The absence in the  The donation of present property without the required reservation is not
deed of any reservation in favor of the donor is proof that no such null and void in its entirety; it is only subject to reduction by the court on
reservation was ever intended considering that under the law, a petition of the party prejudiced by the donation – the donor himself, any
donation of immovable by public instrument is required to specify “the dependent relative or creditor of the donor.
value of the charges” that the donee must assume.  The limitation applies to simple, remunerative and modal donations but
not to onerous ones which are governed by the law on obligations and
Case doctrines contracts, nor to donations mortis causa for they take effect only after
 The best or primary evidence of a donation of real property is an the donor’s death.
authentic copy of the deed of donation with all the formalities required  Donations propter nuptias cannot exceed more than one-fifth of the
by Article 749. When a party wants to prove the contents of a present property of the future spouses if in their marriage settlements
documents, the best evidence is the original writing itself. executed before the marriage, they agree upon a regime other than the
 Prior to the introduction of secondary evidence, a party must establish absolute community of property.4
the existence and due execution of the instrument, after which he must
prove that the document was lost or destroyed. (DECS v Del Rosario) Case doctrines
 Where the deed of donation fails to show the acceptance, or where the  When the dnor stated that she would continue to retain the “possession,
formal notice of the acceptance, made in a separate instrument is not cultivation, harvesting and all other rights and atrtributes of ownership”
given to the donor or else not noted in the deed of donation and in the she meant only dominium utile, not the full ownership. The words “rights
separate acceptance, the donation is null and void. (Sumipat v Banga) and attributes of ownership” should be construed ejusdem generis with
the preceding rights of “possession, cultivation and harvesting”
CHAPTER 3 expressly enumerated in the deed. (Cuevas v Cuevas)
EFFECT OF DONATIONS AND LIMITATIONS THEREON
Art. 751. Donations cannot comprehend future property.
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 4 Art. 82. Donations by reason of marriage are those which are made before its celebration, in
consideration of the same, and in favor of one or both of the future spouses. (126)
relatives who, at the time of the acceptance of the donation, are by law Art. 83. These donations are governed by the rules on ordinary donations established in Title III of
entitled to be supported by the donor. Without such reservation, the Book III of the Civil Code, insofar as they are not modified by the following articles. (127a)
donation shall be reduced in petition of any person affected. (634a) 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.
Reservation of sufficient means for support of donor and relatives Donations of future property shall be governed by the provisions on testamentary succession and
 A donor may donate all his present property or part thereof provided he the formalities of wills. (130a)
Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In
reserves sufficient property in ownership or in usufruct for the support of case of foreclosure of the encumbrance and the property is sold for less than the total amount of
the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for
more than the total amount of said obligation, the donee shall be entitled to the excess. (131a)

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By future property is understood anything which the donor  The limitation is really on the right of the donor to give rather than on the
cannot dispose of at the time of the donation. (635) right of the donee to receive.
 A person may not donate more than he can give by will and a person
Donation of future property… PROHIBITED! may not receive by way of donation more than what the donor is
 Future property is anything which the donor cannot dispose of at the allowed by law to give by will; otherwise, the donation shall be
time of the donation. In other words, it is property that belongs to others inofficious and shall be reduced with regard to the excess.
at the time the donation is made and it is immaterial that it may  The limitation applies where the donor has forced or compulsory heirs.
subsequently belong to the donor. The purpose is not to diminish the legitimes to which they are entitled.
 Nobody can dispose of that which does not belong to him. Nemo emo. o But the limitation is enforceable only after the death of the
 Future inheritance cannot be donated because it is future property but donor because it is only then when it can be determined
upon the death of his predecessor, the inheritance ceases to be future whether or not the donation is inofficious; by contrasting its
and consequently, may be the object of donation even if the properties value with the net value of the estate of the donor deceased.
constituting the inheritance have not yet been delivered. o The donation is valid during the lifetime of the donor.
 Property, the acquisition of which by the donor depends upon the
fulfillment of a suspensive condition, may be donated because, although Art. 753. When a donation is made to several persons jointly, it is
the property may be as to him still “future property”, the effects of the understood to be in equal shares, and there shall be no right of
fulfillment of the condition shall retroact to the day of the constitution of accretion among them, unless the donor has otherwise provided.
the contract. The preceding paragraph shall not be applicable to donations
 Another reason is that the donor by desisting to acquire a future made to the husband and wife jointly, between whom there shall be a
property donated would be revoking the donation contrary to the rule right of accretion, if the contrary has not been provided by the donor.
that donations inter vivos are irrevocable save for causes provided by (637)
law.
Donation to several donees jointly
Case doctrine  The rules are as follows:
 A donor cannot lawfully convey what is not his property. Where a parcel 1. The donation is understood to be in equal shares, unless the donor
of land was the registered property of another, and the donee failed to has provided otherwise.
show how her donor acquired it from the registered owner, it is held that 2. There shall be no right of accretion among the donees, unless the
the donor has no right, title or interest in said land which he could donor has otherwise provided.
lawfully convey. 3. If the donees are husband and wife, there shall be aright of
accretion, if the contrary has not been provided by the donor.
 If there is no accretion among the donees, one cannot accept
Art. 752. The provisions of Article 750 notwithstanding, no person may independently for his co-donee who is not present.
give or receive, by way of donation, more than he may give or receive
by will. Art. 754. The donee is subrogated to all the rights and actions which in
The donation shall be inofficious in all that it may exceed this case of eviction would pertain to the donor. The latter, on the other
limitation. (636) hand, is not obliged to warrant the things donated, save when the
donation is onerous, in which case the donor shall be liable for
Amount of donation limited to what donor may give by will eviction to the concurrence of the burden.
 Article 752 makes applicable to donations the limitation on testamentary The donor shall also be liable for eviction or hidden defects in
disposition with respect to the amount thereof. case of bad faith on his part. (638a)

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Rights and actions  To be valid, the donee must be “living at the time of the donation”, which
 Here are the rules: is to be understood to refer to the time of the perfection of the donation.
1. The donee is subrogated to all the rights and actions which in case  A donation to a child who was not yet conceived at the time it was made
of eviction would pertain to the donor is void.
2. If the donation is simple or remunerative, the donor is not liable for  If the property donated is immovable, the formalities for donations of
eviction or hidden defects, becaue the donation is gratuitous; real property must be complied with.
3. Even if the donation is simple or remunerative, the donor is liable
for eviction or hidden defects in case of bad faith on his part Art. 757. Reversion may be validly established in favor of only the
(knowingly donating a chicken with avian flu) or warranty is donor for any case and circumstances, but not in favor of other
expressly stipulated; and persons unless they are all living at the time of the donation.
4. If the donation is onerous (modal donation, according to de Leon), Any reversion stipulated by the donor in favor of a third
the donor is liable on his warranty but only to the extent of the person in violation of what is provided in the preceding paragraph
burden. shall be void, but shall not nullify the donation. (614a)

Art. 755. The right to dispose of some of the things donated, or of Donation with provision for reversion
some amount which shall be a charge thereon, may be reserved by the  The donor may provide for reversion, whereby the property shall go
donor; but if he should die without having made use of this right, the back to the donor or some other person.
property or amount reserved shall belong to the donee. (639)  It may be validly established for any case and circumstances.
 If the revision is in favor of other persons, they must be living at the time
Donation with right of donor to dispose of part of object donated, reserved. of the donation.
 The donor may reserve the right to dispose of some of the things or part  Thus, a reversion in favor of an unconceived child is void, but such
of the thing donated or some amount or income thereof. nullity shall not invalidate the donation. The reversion which is merely
 The donation is actually conditional, and the condition is fulfilled if the an accessory clause is simply disregarded.
donor dies without exercising the right he reserved, either by acts inter
vivos or mortis causa.
Art. 758. When the donation imposes upon the donee the obligation to
Ron donates to Harry a house and an apartment with the provision that Ron pay the debts of the donor, if the clause does not contain any
could sell the house and give the rents (or a portion) of the apartment for 5 declaration to the contrary, the former is understood to be liable to pay
years to Frank. The donation of the house with a reservation of the right to only the debts which appear to have been previously contracted. In no
dispose should be considered mortis causa, and therefore, must follow the case shall the donee be responsible for the debts exceeding the value
formalities prescribed for making a will. The donation of the apartment is of the property donated, unless a contrary intention clearly appears.
inter vivos. (642a)

Art. 756. The ownership of property may also be donated to one person Art. 759. There being no stipulation regarding the payment of debts,
and the usufruct to another or others, provided all the donees are the donee shall be responsible therefor only when the donation has
living at the time of the donation. (640a) been made in fraud of creditors.
The donation is always presumed to be in fraud of creditors,
Naked ownership and usufruct separately donated when at the time thereof the donor did not reserve sufficient property
 The donor may donate separately the naked ownership (dominium to pay his debts prior to the donation. (643)
directum) to one person and the usufruct (dominium utile) to another.
Liability of donee to pay debts of donor

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 Here are the rules.

1. Where donor imposes obligation upon the donee: Art. 760. Every donation inter vivos, made by a person having no
a. The donee is liable to pay only debts previously children or descendants, legitimate or legitimated by subsequent
contracted; marriage, or illegitimate, may be revoked or reduced as provided in the
b. He is liable for subsequent debts only when there is a next article, by the happening of any of these events:
stipulation to that effect; and (1) If the donor, after the donation, should have legitimate or
c. He is not liable for debts in excess of the value of the legitimated or illegitimate children, even though they be posthumous;
donation received, unless the contrary is intended. (2) If the child of the donor, whom the latter believed to be
2. Where there is no stipulation regarding the payment of debts dead when he made the donation, should turn out to be living; 

a. The donee is generally not liable to pay the donor’s debts; (3) If the donor subsequently adopt a minor child. (644a)
b. He is responsible therefore only if the donation has been
made in fraud of creditors (which is always presumed Grounds for revocation and reduction of donation
when at the time of the donation the donor has not left 1. Revocation affects the whole donation and is allowed during the lifetime
sufficient assets to pay his debts) of the donor. The grounds are:
c. He is not liable beyond the value of the donation received. a. Birth, appearance, or adoption of a child (760);
 Ordinarily, the donee should not be made liable to pay the donor’s debt b. Non-fulfillment of a resolutory condition imposed by the donor
beyond the value of the thing donated. (764); and
c. Ingratitude of the donee. (765)
Donation in fraud of creditors 2. Reduction generally affects a portion only of the donation (unless the
 Presumed in fraud when at the time thereof the donor did not reserve donee has no free portion left) and is allowed during the lifetime of the
sufficient property to pay his debts prior to the donation. donor or after his death. The grounds are:
 The creditors of the donor at the time of the donation may exercise the a. Failure of the donor to reserve sufficient means for support of
subsidiary right of rescission when they cannot in any manner collect himself or dependent relatives; (750)
the claims due them (accion pauliana) unless the property donated has b. Failure of the donor to reserve sufficient property to pay off his
passed into the hands of a third person in good faith for value. In the existing debts (759);
latter case, the donee shall answer for damages if he acted in bad faith. c. Inofficiousness, that is, the donation exceeds that which the
donor can give by will; (752, 771) and
Case doctrine d. Birth, appearance, or adoption of a child. (760)
 Requisites for an accion pauliana:  A donation that has been duly perfected in accordance with law should
1. Credit prior to alienation, even if demandable later stand until after its revocation should have been asked and granted in
2. Debtor has made a subsequent contract conveying a patrimonial the proper proceeding.
benefit to a 3rd person
3. The creditor has no legal remedy to satisfy his claim Birth, appearance, or adoption of a child
4. The act being impugned is fraudulent  This article applies to all donations inter vivos. It does not apply:
5. The third person who received the property conveyed, if is by a. to donations mortis causa for they are revocable at will by the
onerous title, has been an accomplice in the fraud. donor (testator);
 But remember that accion pauliana is subsidiary. b. to onerous donations for they are really contracts; and


CHAPTER 4
REVOCATION AND REDUCTION OF DONATIONS

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

(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil
 The burden of proof is on the plaintiff-donor who must allege and
Code on donations in general. (132a) establish the requirements prescribed by law.

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In the case of inofficious donations. o If he has sold the property, he must give its value.
 What is sought to be protected by Article 760 is only the prospective or o If the property has been mortgaged by him, and the donor
presumptive legitime of the child because that is the only portion which redeemed the mortgage, he must reimburse the donor.
cannot be disposed of. o If the property cannot be returned, as when it ahs been lost or
 If the donation does not exceed the free portion at the time of the birth, destroyed, he must return its value at the time of the perfection
appearance, or adoption, there will be no revocation or reduction but it of the donation.
may still be reduced under Article 771 if it cannot be covered by the free  It is presumed that the price at which the property is sold is its value.
portion computed as of the time of the donor’s death. o If the price is less than its actual value, the donee is not liable
for the difference absent proof of bad faith.
Let us suppose Ron who was then childless, donated a property worth P50 o When the property cannot be returned, its value shall be
to Erin, a close “friend.” Subsequently, a child was born to Ron whose estate determined not as of the time of the loss but as of the time of
at the time was P30. His total estate then including the value of the property the donation.
donated was P80.
Since the legitime of a legitimate child is ½ of the estate or P40, and Art. 763. The action for revocation or reduction on the grounds set
therefore, the free portion is also P40, the donation must be reduced by P10. forth in article 760 shall prescribe after four years from the birth of the
But if the value of the estate was P70, the donation is not revoked or first child, or from his legitimation, recognition or adoption, or from the
reduced because it does not exceed the free portion of P60 [(P70 + 50)/2]. judicial declaration of filiation, or from the time information was
However, should the estate of Ron be less than P50, excluding the P50 received regarding the existence of the child believed dead.
donation, at the time of his death (for example, P40), it shall be subject to This action cannot be renounced, and is transmitted, upon the
reduction to the extent that it is inofficious (i.e. P50 – P45 [(P50+P40/2) = death of the donor, to his legitimate and illegitimate children and
P50) under article 771. descendants. (646a)

Case doctrines Prescription of action for revocation or reduction

 Donor has the burden to allege and establish the requirements  The donation is revoked ipso jure by operation of law, by the happening
prescribed by law for which the annulment or reduction of the donation of any of the events mentioned in Article 760.
can be based. (Cruz v CA) o Hence, it is not really essential that an action be brought to
revoke the donation.
Art. 762. Upon the revocation or reduction of the donation by the birth, o BUT, the revocation is not self-operative or self-executory.
appearance or adoption of a child, the property affected shall be  If the donee should refuse to comply with his obligation under Article
returned or its value if the donee has sold the same. 762, resort to judicial action is necessary under Article 763. But since it
If the property is mortgaged, the donor may redeem the is the law itself that declares the revocation, the action is strictly not an
mortgage, by paying the amount guaranteed, with a right to recover the action to revoke but one to have the court expressly declare the
same from the donee. revocation which has already taken place by operation of law.
When the property cannot be returned, it shall be estimated at  The period within which to bring the action is 4 years. The time to start
what it was worth at the time of the donation. (645a) counting depends upon the cause:
o Birth of the first child;
Obligation of donee upon revocation or reduction o From time of legitimation, recognition or adoption; or
 In case of revocation or reduction under Article 760, the obligation of the o From judicial declaration of filiation
donee depends upon the situation of the property donated. o From the time information was received regarding the
o If the property affected is still in his possession, he must return existence of the child believed dead.
the same.  Not from the actual appearance of the absent child.

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

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 Article 764 does not apply to onerous donations because onerous  It’s important to determine whether or not the donation is onerous or not
donations are governed by the rules of Contracts. Hence, the so that we know what law to apply.
prescription period is 10 years, not 4 years. (De Luna v Abrigo)
o While courts are given the power to fix the duration when the Art. 765. The donation may also be revoked at the instance of the
condition is to be fulfilled when none is given, if the facts show donor, by reason of ingratitude in the following cases:
that a reasonable period has already been allowed the donee (1) If the donee should commit some offense against the
to avail of the opportunity to comply with the condition, then the person, the honor or the property of the donor, or of his wife or
courts will no longer give the donee a period. (Central Phil Uni) children under his parental authority;
o The legal possibility of bringing the action begins with the (2) If the donee imputes to the donor any criminal offense, or
expiration of a reasonable opportunity of the donee to fulfill any act involving moral turpitude, even though he should prove it,
what has been charged upon it by the donor. (Sec of Education unless the crime or the act has been committed against the donee
v Heirs of Dulay) himself, his wife or children under his authority;
 Nothing in law prohibits parties from entering into an agreement that 
 (3) If he unduly refuses him support when the donee is
violation of the terms of the contract would cause cancellation thereof legally or morally bound to give support to the donor. (648a)
even without court intervention.
o In cases like these, judicial intervention is necessary not for Revocation by reason of ingratitude of the donee
purposes of obtaining a judicial declaration rescinding a  Article 765 does not apply to donations mortis causa and onerous
contract already deemed rescinded but in order to determine donations.
whether or not the rescission was proper. (De Luna)  A donation propter nuptias may be revoked by the donor when the
 When the deed of donation expressly provides for automatic rescission donee has committed an act of ingratitude as specified in Article 765.
and reversion of the property donated, the rules on contract and the  The enumeration is exclusive and cannot be enlarged.
general rules on prescription should apply, not 764. (Roman Catholic  The act of ingratitude must have been committed by the donee himself
Archbishop of Manila v CA) because the duty of gratitude is personal. An act imputable to the
o A donor cannot revoke the donation on the grounds for non- husband or wife or the hot mistress of the donee is not a ground for
compliance of an impossible condition. (Archbishop of Manila v revocation.
CA)
 A declaration of petitoner’s absolute ownership appears legally possible Offense against the donor, etc
only when the deed of donation is contextually declared peremptorily  Criminal conviction is not needed. It is sufficient that the offense be
revoked. (Dolar v Barangay Lublub) proved by mere preponderance of evidence in the action for revocation.
 The act of selling property to a 3rd party cannot be considered as a valid  If the offense is committed against a child who is no longer under
act of revocation of the deed of donation for the reason that a formal parental authority, the donation cannot be revoked.
case to revoke the donation must be filed which speaks of an action that
has a prescriptive period of 4 years from non-compliance with the Imputation to donor of any criminal offense, etc
condition. In this case, there was no provision of automatic rescission,  It is immaterial that the donee can prove his accusation or substantiate
thus placing the case within the ambit of Article 764. (Austria-Magat v his testimony against the donor.
CA) o The exception is when the crime has been committed against
 When the donation is onerous and does not fix a period to comply with the donee himself, his wife or children under his parental
the condition, the courts should fix a period to uphold the greatest authority.
reciprocity of rights. If it is gratuitous, then they should not, to uphold the o The act involving moral turpitude may not amount to a crime.
least reciprocity of rights and interests.
Refusal to support the donor

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 There are two requisites:  If the revocation is by reason of ingratitude, the alienations and
1. The refusal to support the donor must be undue, that is, mortgages made by the donee before the complaint for revocation is
without just reason; and annotated in the Registry of Property shall subsist or are valid. Later
2. The donee must be legally or morally bound to support the alienations and mortgages shall be void.
donor.  The donor can recover the property from the transferee or
 Note that ingratitude extends beyond failure to do a legal duty to support mortgagee.
and includes a moral duty to help. (donee is a friend who is penniless
and asks for help, and the donor shuns her away like a scorned lover.) The donation of land by Ron to Erin was made on July 10. Erin sold the land
to Tara on July 20. The act of ingratitude was done on July 30. The
Case doctrine complaint for revocation was annotated on August 10. Thus, the sale to Tara
 All crimes which offend the donor show ingratitude and are causes for is valid, and the remedy of Ron is to recover from Eric the value of the land
revocation. Any crime under the Revised Penal Code is one involving at the time of the donation.
moral turpitude. (Spouses Romulo v CA)
If the sale was made after August 10, the sale is void and Ron can recover
Art. 766. Although the donation is revoked on account of ingratitude, the land from Tara.
nevertheless, the alienations and mortgages effected before the
notation of the complaint for revocation in the Registry of Property If the act of ingratitude was committed on July 20, the sale on July 30 and
shall subsist. the complaint which was filed on July 25 and was annotated on July 31, but
Later ones shall be void. (649) at the time of the sale Tara was aware of the act of ingratitude committed by
Erin, or the pending action by Ron, the sale should not be considered valid
Art. 767. In the case referred to in the first paragraph of the preceding because Tara acted in bad faith, and so Ron can recover the land from her.
article, the donor shall have a right to demand from the donee the
value of property alienated which he cannot recover from third Art. 768. When the donation is revoked for any of the causes stated in
persons, or the sum for which the same has been mortgaged. Article 760, or by reason of ingratitude, or when it is reduced because
The value of said property shall be fixed as of the time of the it is inofficious, the donee shall not return the fruits except from the
donation. (650) filing of the complaint.
If the revocation is based upon noncompliance with any of the
Effect of revocation on prior alienations and mortgages conditions imposed in the donation, the donee shall return not only the
If by non-compliance property but also the fruits thereof which he may have received after
 In case of revocation of a donation by non-compliance by the donee having failed to fulfill the condition. (651)
with any of the conditions imposed, alienations and mortgages made by
the donee are void, subject only to the rights of innocent third persons. Return by donee of the fruits of property donated
The donor can recover from the donee:  The rules depend upon the cause of revocation or reduction
o Only the value of the property donated at the time of the perfection o If the cause is:
of the donation, OR  the birth, appearance or adoption of a child, or
o The sum for which it was mortgaged.  ingratitude, or
Recovery cannot be had against the third person unless he acted in bad  inofficiousness of the donation (because the donor did not
faith as when had actual knowledge of the cause for revocation or the filing reserve sufficient means for support), or
of the action.  he donated more than he could give by will, then
 only the fruits accruing from the filing of the complaint
If by reason of ingratitude need be returned.

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 It can be implied that the donation remains valid up to the  General rule: The action to revoke a donation by reason of ingratitude is
time of the filing of the complaint. purely personal to the donor and cannot, as a rule, be transmitted to the
 If the cause is the non-fulfillment of any of the conditions imposed in the heirs.
donation, the fruits must be returned from the time of the breach of the  This is unlike the action for revocation based on the birth, appearance
condition. The donation shall also return the property donated. or adoption of a child and the action based on non-compliance with the
 In case of inofficious donation which exceeds the free disposal by will, condition of a donation.
the donation takes effect during the lifetime of the donor, the donee  However, the particular circumstances of the case should be taken into
appropriates the fruits, and the reduction may be asked only after the account to determine whether it was possible to bring the action. Hence,
donor’s death. the following exceptions wherein the heirs of the donors can ask for the
revocation:
Art. 769. The action granted to the donor by reason of ingratitude 1. If the donee killed the donor, or
cannot be renounced in advance. This action prescribes within one 2. If the donor dies without having known of the act of ingratitude,
year, to be counted from the time the donor had knowledge of the fact or
and it was possible for him to bring the action. (652) 3. If a criminal case against the donee was instituted by the
donor, but the donor dies before he could bring the civil action
Renunciation and prescriptive period of action by reason of ingratitude for revocation; or
 The action granted to the donor for revocation by reason of ingratitude, 4. If the action for revocation has already been filed by the donor
like the action based on the birth, appearance, or adoption of a child before his death.
cannot be renounced in advance.
 What the law prohibits is waiver, prior to the commission of the act of Action against heirs of donee
ingratitude.  The heirs of the donee are not held responsible for the acts of their
 A past ingratitude can be the subject of a valid renunciation because the predecessor-donee. The act of ingratitude. (The sins of the father are
renunciation can be considered as an act of magnanimity on the part of not the sins of the son… although, there are some instances where we
the donor. repeat the mistakes of our parents. General rule? Learn.)
 The action prescribes…  But if the donor has already filed the complaint before the donee’s
1. Within one year from the time the donor had knowledge of the death, the suit may be continued against his heirs.
act of ingratitude AND
2. It was possible for him to bring the action. Art. 771. Donations which in accordance with the provisions of Article
 To bar the action, the donee must show proof that the one-year period 752, are inofficious, bearing in mind the estimated net value of the
has expired and it was possible for the donor to institute the said action donor's property at the time of his death, shall be reduced with regard
within the same period. 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
Art. 770. This action shall not be transmitted to the heirs of the donor, appropriating the fruits.
if the latter did not institute the same, although he could have done so, For the reduction of donations the provisions of this Chapter
and even if he should die before the expiration of one year. and of Articles 911 and 912 of this Code shall govern. (654)
Neither can this action be brought against the heir of the
donee, unless upon the latter's death the complaint has been filed. Reduction of inofficious donations
(653)  Donations which are inofficious because they are more than what the
donor can give by will shall be reduced with regard to the excess upon
Transmission of action for revocation the death of the donor, after determining the net value of the estate.

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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 Thus, it follows that the donation is effective during the lifetime of the The donees, devisees and legatees, who are not entitled to the
donor and so, the donee, as owner of the property donated also legitime and the creditors of the deceased can neither ask for the
becomes owner of the fruits, although the donation should appear reduction nor avail themselves thereof. (655a)
inofficious.
 For donations propter nuptias, they may be reduced for being Persons entitled to ask for reduction… who are they?
inofficious. Being liberalities, they remain subject to reduction for  For the reduction of inofficious donations,
inofficiousness upon the donor’s death, if they should infringe the 1. those who at the time of the donor’s death have a right to the
legitime of a forced heir. legitime, and
 The action to reduce the inofficious donation must be brought within 5 2. their heirs, and
years from the time of the donor’s death. 3. succesors in interest.
 For reduction of donations, the following articles, quoted below shall  The donor is not included, patay na siya eh. The inofficiousness can
govern: only be determined after his death.

Art. 911. After the legitime has been determined in accordance with the Who may not ask for reduction?
three preceding articles, the reduction shall be made as follows: 1. The donees, or
(1) Donations shall be respected as long as the legitime can be covered, 2. The devisees, or
reducing or annulling, if necessary, the devises or legacies made in the will; 3. The legatees, who are not entitled to the legitime.
(2) The reduction of the devises or legacies shall be pro rata, without any 4. Creditors of the deceased. (The remedy of creditors is to file a claim
distinction whatever. 
 If the testator has directed that a certain devise or against the estate of the deceased, but not against the owners of the
legacy be paid in preference to others, it shall not suffer any reduction until donated property.)
the latter have been applied in full to the payment of the legitime. 

(3) If the devise or legacy consists of a usufruct or life annuity, whose value Renunciation of right to ask for reduction… can it be done?
may be considered greater than that of the disposable portion, the  The right to ask for the renunciation of inofficious donations cannot be
compulsory heirs may choose between complying with the testamentary renounced during the lifetime of the donor, ether by express declaration
provision and delivering to the devisee or legatee the part of the inheritance or by consenting to the donation.
of which the testator could freely dispose. (820a)
Art. 912. If the devise subject to reduction should consist of real property, 773. If, there being two or more donations, the disposable portion is
which cannot be conveniently divided, it shall go to the devisee if the not sufficient to cover all of them, those of the more recent date shall
reduction does not absorb one-half of its value; and in a contrary case, to the be suppressed or reduced with regard to the excess. (656) 

compulsory heirs; but the former and the latter shall reimburse each other in
cash for what respectively belongs to them. Reduction where there are two or more donations
The devisee who is entitled to a legitime may retain the entire property,  The subsequent donations shall first be reduced and only if they are not
provided its value does not exceed that of the disposable portion and of the sufficient to cover the disposable portion should the earlier ones be
share pertaining to him as legitime. (821) reduced also with regard to the excess.
 If the two donations were perfected at the same time, the reduction
Art. 772. Only those who at the time of the donor's death have a right to should be proportionate unless otherwise provided by the donor.
the legitime and their heirs and successors in interest may ask for the
reduction or inofficious donations. Rules on revocation… CHARTED!
Those referred to in the preceding paragraph cannot renounce
their right during the lifetime of the donor, either by express REVOCATION, Birth, Non-compliance Ingratitude
declaration, or by consenting to the donation. based on… appearance, or with condition or

126
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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adoption of a conditions complaint after having

child failed to fulfill
Time of action Within 4 years Within 4 years Within 1 year the condition
from birth of first from non- from the time
child, or compliance with the donor had Rules on reduction… CHARTED!
From his the condition knowledge of
legitimation, or the fact of the REDUCTION, Failure of Inofficiousnes Birth, Fraud
Adoption, or But if it’s an ingratitude based on… the donor to s for being in appearance against
From the judicial onerous reserve excess of , or creditors
declaration of donation, within sufficient what the adoption of
filiation, or 10 years from means for donor can a child
From receipt or non-compliance support give by will
info regarding with the Time of action Any time by Within 10 Same as in The action
the existence of condition the donor or years (Santos first column for
the child by the v Alana case, rescission
believed dead relatives based on must be
Transmissibility Transmitted to May be Generally, the entitled to 1144) brought
of action children and transmitted to action is not support within 4
descendants of the donor’s heirs transmitted to during the Within 5 years years from
the donor upon and may be the heirs of the lifetime of after the the
his death exercised donor nor can the donor death of the perfection
against the the action be donor (if of the
donee’s heirs filed against the propter donation,
heirs of the nuptias, or at the
donee according to latest, from
Effect of Property Property Property book) the time
revocation affected shall be donated shall be donated shall be the creditor
returned, or its returned to the returned but had
value if the donor and the alienations and knowledge
donee has sold alienations and mortgage of the
the same, or mortgages are effected before donation
The donor may void subject to the notation of Transmissibilit Not Transmitted to Same as in Transmitte
redeem the the rights of the complaint for y of action transmissibl the donor’s first column d to the
mortgage on the innocent 3rd revocation in the e as the heirs as the creditor’s
property, with a persons Registry of duty to give donation shall heirs or
right to recover Property shall support and be reduced as successors
the property subsist the right to regards the -in-interest
Liability for fruits Donee shall Donee shall Same as in first receive are excess at time
return the fruits return the fruits column personal in of the donor’s
accruing from which he may nature death
the filing of the have received Effect of Reduced to Takes effect Same as in Property

127
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please! 
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Ad Majorem Dei Gloriam

PROPERTY NOTES

revocation the extent during the first column affected

necessary lifetime of the shall be
to provide donor subject returned by
support to reduction the donee
only upon his for the
death with benefit of
regard to the the creditor
excess subject to
the rights
of innocent
third
persons
Liability for Donee is Donee Donee, as Fruits of
fruits entitled to appropriates owner, the
the fruits as the fruits as appropriate property
owner of the owner of the s the fruits affected
property property of the shall also
donated property not be
affected by returned. In
the case the
reduction, donee
but with acted in
regard to bad faith
the excess, and it
he shall be should be
liable only impossible
for the fruits for him to
from the return, then
filing of the indemnify
complaint the donor’s
creditor for
damages.

Happy the man who finds wisdom, the man who gains understanding! 
 --
Proverbs 3:13

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

128
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please! 