NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
UNIVERSITY OF SANTO TOMAS
Faculty of Civil Law
A.Y. 2011-2012
First Semester
LAW ON PROPERTY
BOOK II
PROPERTY, OWNERSHIP, AND ITS MODIFICATIONS
Title I. - CLASSIFICATION OF PROPERTY
PRELIMINARY PROVISIONS
Art. 414. All things which are or may be the object of
appropriation are considered either:
(1) Immovable or real property; or
(2) Movable or personal property. (333)
Q: What is property?
A: The law does not directly define what property is, all it
merely says is that all things which are or may be the object
of appropriation, then it merely classifies them as either:
a. Real
b. Personal
Better Defintion: Property is an object or right which is
capable, is appropriated, or is susceptible of appropriation by
man, with capacity to satisfy his wants and or needs.
Property does not only cover material things (solid, liquid,
gas) because it mentions of right.
Q: Is air a property?
A: Air per se is not a property, but if it is placed in oxygen
tanks, it now becomes property. Air becomes a property
when it comes under the control of man.
Q: What are the attributes of property?
A:
1. Susceptible of appropriation
2. Indivoduality or substance
3. Satisfy the moral or economic needs of man
Q: Are the rights under the Bill of Rights considered as
property?
A: No. Although the concept of property does not only
include corporeal things, whether solid, liquid, or gas, as it
___________________________
includes rights, the rights covered under Art. 3 of the
Constitution are not deemed property because these are
rights which are not capable, appropriated, or susceptible of
appropriation. These rights are right to office, right of person
of his labor, etc.
Q: What are the classes of rights considered as property?
A:
1. Real right- right which can be exercised against the whole
world
2. Persona right- right to demand the fulfillment of
prestation to give, to do or not to do.
Q: What is appropriation?
A: It is the act of taking a thing for ones own use. It is
equivalent to occupation, the physical seizure of corporeal
things which have no owner with the intention to acquire
their ownership but it is not limited to that .
Q: What is a thing?
A: Refers to existing objects which can be of some use to
man.
Thing is apparently synonymous with the word property.
Technically, thing is broader in scope for it includes both
appropriable and non-appropriable object.
Property is always a thing, but a thing is not always a
property.
Q: What are the classification of things?
A:
1. Res Communes- things which belong to everybdy like
sunlight, moonlight, moving air, but these things do no
qualify as properties as contemplated under Art. 414
because they are beyond human control or appropriation
2. Res alicujus- are things which are owned by a person or
group of persons like house and lot, a parcel of land.
3. Res nulius- things which do not have any owner like the
whale, sharks, wild animals in the forest. These things are
qualified as property because this can be placed under
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
the control of man through human occupation. Once A:
seized by man, it automatically belongs to him. 1. As to mobility

Q: Is human body a thing while the person is alive? a. Immovable or real property
b. Movable or personal property
A: Generally, no. However, certain body parts when severed
from the body become property like hair, blood, etc. 2. As to ownership

Q: What about the corpse? a. Public dominion

b. Private ownership
A: It is considered as thing. That is why it is sometimes
referred as remains of person but no longer the person. 3. As to alienability

It is not a property even it may be considered a thing. It is for a. Alienable

moral reasons and public policy that it is not considered as b. Inalienable
property.
4. As to individuality
Q: May it be a subject of contractual relations?
a. Specific property
A: Dean Aligada says no. However, some parts may be b. Generic property
donated for some scientific or medical purposes. According to
Justice Quiambao, however, generally, human body cannot 5. As to susceptibility to touch
be the subject of contractual relations. The exception is if the
person during his lifetime would donate his organs or body a. Tangible
parts by way of legacy or under Sec. 4 of Organ Donation Act. b. Intangible

Q: Are human organs within the commerce of men? 6. As to susceptibility to substitution

a. Fungible
A: No. b. Non fungible

Q: When you hire a person, does this not violate the 7. As to accession
principle that human bodies cannot be the object of
contract? a. Principal
b. Accessory
A: No. In obligations, the object is the prestation which is
either to do, not to do, or to give. Here, the objetc is the CONSUMMABLES v. FUNGIBLES
service rendered or the labor exerted and labor is a property
which may be the subject of contractual relation. The human CONSUMMABLES FUNGIBLES
body is merely the means to render the service or labor Those which cannot be used Those which can be
required. according to their nature substituted by another thing
without being consumed
Things v. Property
Q: What is the importance of classifying the property
THINGS PROPERTY according to its mobility?
Broader in scope Limited
All kinds of property are All things which may be the A: The importance of the classification is that it determines
things but not all things are object of appropriation certain distinctions in specific legal concepts like:
property
Refer to existing objects Property refers to objects 1. Criminal law
including those which could already possessed or is in
not be appropriated by man their possession Robbery and theft- movables
Things involve corporeal Property may refer tp Usurpation and estafa- immovables
objects intangible matters like rights
and credits 2. Kinds of contracts

CLASSIFICATION OF PROPERTY Real property- mortgage, antichresis

Personal property- pledge, deposit except judicial
Q: What are the classifications of property? deposit, chattel mortgage
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
3. Acquisitive presctiption
GOOD FAITH BAD FAITH
Movable 4 years 8 years
Immovable 10 years 30 years
4. Venue in Remedial Law
CHAPTER 1
IMMOVABLE PROPERTY
Art. 415. The following are immovable property:
(1) Land, buildings, roads and constructions of all kinds
adhered to the soil;
(2) Trees, plants, and growing fruits, while they are attached
to the land or form an integral part of an immovable;
(3) Everything attached to an immovable in a fixed manner,
in such a way that it cannot be separated therefrom without
breaking the material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for use or
ornamentation, placed in buildings or on lands by the owner
of the immovable in such a manner that it reveals the
intention to attach them permanently to the tenements;
(5) Machinery, receptacles, instruments or implements
intended by the owner of the tenement for an industry or
works which may be carried on in a building or on a piece of
land, and which tend directly to meet the needs of the said
industry or works;
(6) Animal houses, pigeon-houses, beehives, fish ponds or
breeding places of similar nature, in case their owner has
placed them or preserves them with the intention to have
them permanently attached to the land, and forming a
permanent part of it; the animals in these places are
included;
(7) Fertilizer actually used on a piece of land;
(8) Mines, quarries, and slag dumps, while the matter
thereof forms part of the bed, and waters either running or
stagnant;
(9) Docks and structures which, though floating, are
intended by their nature and object to remain at a fixed
place on a river, lake, or coast;
(10) Contracts for public works, and servitudes and other
real rights over immovable property. (334a)
Q: What is an immovable property?
A: Under the Roman concept, it is that which cannot be
transferred from one place to another because it is
impossible to do so or it cannot be transferred without
transferring without suffering injury or destruction.
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CATEGORIES OF IMMOVABLE PROPERTIES
1. NATURE- property which cannot be moved from one
place to another. Includes such constructiibs adhered to
soil, lands, roads, mines and quarries, wells and sewers
while they form part of soils (Pars. 1 and 8) regardless of
any other consideration.
2. INCORPORATION-attached to an immovable in a fixed
manner (Pars. 1-3) irrespective of the ownership thereof.
3. DESTINATION- such objects for use or ornamentation
placed in buildings or on lands by the owner of the
immovable or his agent in such a manner that it reveals
the intention to attach them permanently thereto, as
well as the machinery and other implements intended by
the owner of the tenement for an industry or work which
may be carried on in a building or on a place of land and
which tend directly to meet the needs of the said
industry or work.
4. ANALOGY- such as real rights over immovable property
(par. 10)
Par.1
Land by its very nature is immovable. Permanent structures
adhering to the land, whether in own land or rented land
Constructions adhere to the soil [fence made of adobe
stones, cemented dike
Buildings which are permanent structures adhered to the
land are immovable whether built in ones own land or
rented provided that they are more of a permanent structure
and not mere superimpositions on the land like barong-
barongs.
A dismantled house and/or of materials of such house shall
cease to be immovable and shall legally be considered
personal property.
See: Jose Luna v. Demetrio Encarnacion; Leung Yee v. Frank
Strong
Q: Can a house be subject of chattel mortgage?
A: Yes, provided the following are present:
a. Parties mutually agreed to consider the house a
personalty
rd
b. That no innocent 3 party be prejudiced.
A building is real property thus its sale as annotated in the
Chattel Mortgage Registry cannot be given the legal effect of
registration in the Registry of Real Property.
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
A building subjected to a chattel mortgage cannot be sold a. For purposes of sale
extra-judicially. b. For attachment and execution
c. For applying Chattel Mortgage Law
NOTE:
Doctrine of Estoppel parties to a contract may, by Par.3
agreement, treat as personal property that which by nature
would be a real property; party is prohibited from assuming RES VINTA immovable by incorporation, which when
inconsistent positions and repudiating an obligation separated from the immovable, they regain the air condition
voluntarily assumed after having accepted benefits therefrom as movable.

Regardless of the validity of a contract constituting a chattel When separated from the immovable, they regain their
mortgage on a house, as between the parties to said contract, condition as movable
the same cannot and does not bind third persons who are not
privies to the said contract Ex: ceiling fan attached to ceiling

Q: May a building be mortgaged separately from the land? Q: Distinguish Par. 3 from Par. 4.

A: Yes, a building may be validly mortgaged separately from PAR. 3 PAR. 4

the land upon which it is built. While it is true that a Cannot be separated from Can be separated from the
mortgage of a land necessarily includes, in the absence of the immovable without immovable without breaking
stipulation, the improvements thereon, still, a building by breaking or deterioration or deterioration
itself may be mortgaged apart from the land on which it has Need not be placed by the Must be placed by the owner
been built owner1 of the immovable or his
agent, express or implied
Steel towers constructed by the Manila Electric Company are Real property by Real property by
removable and merely attached to a square metal frame by incorporation incorporation and
means of bolts, which when unscrewed, could easily be destination
dismantled and moved from place to place. Hence, not being
adhered to the soil, they are not to be considered real The fact that the machineries were bolted or cemented on
properties. real property mortgage does not make them ipso facto
immovable under Art. 415 par. 3&5, as the parties intent has
Par.2 to be looked into. Even if the properties appear to be
immovable by nature, nothing prohibits the parties from
Trees by their very nature are immovable, cannot be moved treating them as chattels to secure an obligation under the
from one place to another; but if cut or uprooted it becomes principle of estoppel.
personal property because it ceased to be adhered to the soil.
The breakage or injury, in case of separation, must be
No matter what their size may be, trees and plants are substantial.
considered real property BY NATURE, if they are spontaneous
products of the soil; and BY INCORPORATION, if they have
been planted thru labor.
Par.4
Plants adhered to the soil by incorporation are immovable;
but if on pots used for ornamentation it is personal property. Things placed on land or building with intention to attach
them; immovables by incorporation and destination
Trees and plants planted or land are owned by registered
owner of the land, unless the owner has recognized the The one who placed the statue etc. must be the owner of the
ownership in the hands of another. land or building or his representative or agents (if tenant
attached it is personal property).
STANDING CROPS (growing crops) are real property by
incorporation as long as they had not been gathered yet. If Q: What are the requisites under this paragraph?
harvested then it is personal property, except in the case of
uprooted timber, if the land is a timber land. This is because A:
timber is an integral part of the timber land. a. Place by the owner or by the tenant as agent of the
owner
GR: Growing Fruits are real property if attached to the soil b. With the intention of attaching them permanently, even
if adherence will not involve breakage or injury.
XPN:

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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Par.5
Intended by the owner of the tenement for an industry or
works being carried in the land or in a building and which are
necessary for the pursuit of said industry or works
If the objects are separated, they become personal property
If machinery are installed by lessee, the general rule is that
these are personal or movable property
EXPN: lessee agreed to give the machinery to the lessor upon
termination of lease (considered immovable)
Q: Under par.5, what are the requisites to be considered as
a real property?
A:
1. Machinery, etc. must be placed by the owner of the
tenement or his agent
2. The industry or works must be carried on in a building or
piece of land
3. Machinery, etc. must tend directly to meet the needs of
the said industry or works.
4. They must be essential and principal elements of an
industry or works without which such industry cannot
function or carry on the industrial purpose for which it
was established. Hence, movables which are incidental
thereto cannot be considered immobilized.
Cash registers, typewriters, etc. usually found and used in
hotels, restaurants, etc. are merely incidentals not considered
immobilized by destination, for these businesses can
continue or carry on their functions without these
equipments.
Steel towers are not intended for industry or works on the
land since Manila Electric Company is not engaged in an
industry or works on the land in which the steel supports or
towers are constructed.
Machineries of breweries used in the manufacture of liquor
and soft drinks, though movable in nature are immobilized
because they are essential to said industries; but the delivery
trucks and adding machines which they usually own and use
are mere incidentals and retain their movable nature.
Equipment and living quarters of the crew permanently
attached to an immovable is an immovable especially if it is
intended to meet the needs of an industry of the corporation.
Q: Thus, under Art. 415, when is machinery attached to land
or tenement considered immovable?
A: Under Par. 5.
___________________________
Q: Give the exception?
A: When placed on the land or tenement by a tenant.
Q: Give the exception to the exception?
A: When the tenant had promised to leave the machinery on
the tenement at the end of the lease, or when he acted only
as an agent of the owner of the land.
Par. 6
Animal houses, pigeon-houses, beehives, fish ponds or
breeding places of similar nature, in case their owner has
placed them or preserves them with the intention to have
them permanently attached to the land, and forming a
permanent part of it; the animals in these places are included
Animal houses; adhered to the soil -If purposely built to
attach to the ground, tree, wall ; owner of land intended to
be permanent.
The animal in the houses are considered part of the
immovable. If animals escaped, they ceased to be part of the
immovable.
Q: What are the requisites under this paragraph?
a. Place by the owner or by the tenant as agent of the
owner, with the intention of permanent attachment
b. Forms permanent part of the immovable
May be considered as real property under Art415(1) if it is a
construction adhered to the soil in a permanent manner even
if not placed by the owner of the immovable. Animals in
pigeon-houses, beehives, etc. are considered real property
Par.7
Fertilizers should be actually used on the land. If they are still
on sacks or containers, they are still movables.
The moment it is spread or applied directly to the soil, it is
immovable by destination and incorporation. Once
permeated to the soil, it cannot be removed from it without
destroying it
Par.8
Minerals found in these mines when still attached are real
property. After extraction it become chattels.
Q: What are quarries?
A: Lands where stones are chipped of or where sand is being
extracted; stones & sand real property, once extracted they
become movables
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Q: What are slag dumps?
A: Waste and dirt taken from a mine and mounted on the
surface of the ground under excavation
Q: What is water?
A: Refers to those which are found in their natural beds such
as flowing streams, rivers or canals
Par.9
Although floating, they are intended to be stationary.
Considered as immovables though floating, as long as they
are intended by their nature and object, to remain at a fixed
place on a river, lake or coast
Vessels are considered personal property under the civil law
and common law and occasionally referred to as a peculiar
kind of personal property. It is essential that a record of
documents affecting the title to a vessel be entered in the
record of the Collector of Customs at the port of entry.
Q: Is a floating restaurant considered as immovable?
A:It depends. If it is floating in a fixed place and it was
intended as such, they are immovable. However, floating
restaurant in cruise remains movables.
Par.10
GR.: A personal right is always regarded as personal property
XPN: In the cases of public works which are considered as
real property.
A persons one-half interest in business is a personal
property.
In Presbiterio v. Fernandez, it was held that as an
improvement to the land, by express provision of the law,
though not physically so united, the sugar quotas are
inseparable therefrom just like servitudes and other real
rights over an immovable.
CHAPTER 2
MOVABLE PROPERTY
Art. 416. The following things are deemed to be personal
property:
(1) Those movables susceptible of appropriation which are
not included in the preceding article;
(2) Real property which by any special provision of law is
considered as personal property;
(3) Forces of nature which are brought under control by
science; and
___________________________
(4) In general, all things which can be transported from
place to place without impairment of the real property to
which they are fixed. (335a)
Q: What are the tests to determine whether a property is a
movable property?
A:
a. By exclusion: those which are not included in Art. 415
b. Law has provided that certain real property be treated as
personal property
Example: growing crops for the purposes of Chattel Mortgage
Law
c. Forces of nature which are brought under the control of
science
d. Things which can be transported from place to place
without impairment of the real property to which they
are fixed.
Q: What is the test of mobility?
A: If a property is capable of being carried from one place to
another and that such change in location can be made
without injuring the real property to which it may be
attached in the mean time.
In U.S. v. Carlos, the Court convicted the accused of theft. The
RPC provides that personal property is the subject of theft.
Electricity is a valuable article of merchandise and can be
bought and sold like any personal property.
In Laurel v. Abrogar, the Court held that gas and electrical
energy should not be equated with business or services
provided by business entrepreneurs to the public.
Additionally, the long distance of call services of a telephone
company are not movable properies which may be the
subject of theft.
NOTE: The author, composer, partner, sculptor, and inventors
have rights over their works. These rights are PERSONAL
PROPERTY.
Art. 417. The following are also considered as personal
property:
(1) Obligations and actions which have for their object
movables or demandable sums; and
(2) Shares of stock of agricultural, commercial and industrial
entities, although they may have real estate. (336a)
Q: What is the scope of this article?
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
A: This covers credits. The words obligations and actions refer
to the right to recover movables and demandable sums of
money.
CHAPTER 3
The right to collect a sum of money is by itself a personal PROPERTY IN RELATION TO THE PERSON
property. TO WHOM IT BELONGS

Q: Under par. 2, it states shares of stocks. What does it Art. 419. Property is either of public dominion or of private
mean? ownership. (338)

A: From the wordings of the law could be implied that only Public Dominion
stock corporations engaged in agriculture, commerce, or
industry. however, Dean Pineda claims that there is no reason Q: Classify the property according to ownership?
why other juridical entities to be excluded from the coverage.
A:
Q: What if you are partners with somebody in the business 1. Property of public dominion
of selling cars and your partnership bought a garage and 2. Property of private dominion
display store. How do you classify your share in the
partnership? Q: What is public dominion?

A: It is personal property. A: Property of the state in its public capacity which is

intended:
Q: What if you are a co-owner of a building? a. For public use
b. For public service
A: It is Real. c. For the development of national wealth

Q: How about private ownership?

Art. 418. Movable property is either consumable or
nonconsumable. To the first class belong those movables
which cannot be used in a manner appropriate to their
nature without their being consumed; to the second class
belong all the others. (337)
Q: How do you classify objects as to their consummability?
A:
1. Consummable property- cannot be used in a manner
appropriate to their nature without being consumed
2. Non-consummable property- one which can be used
without it being consumed, being eaten or used.
A: Consists of all property belonging to private persons either
individually or collectively.
Art. 420. The following things are property of public
dominion:
(1) Those intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the State,
banks, shores, roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public
use, and are intended for some public service or for the
development of the national wealth. (339a)

NOTE: The test is whether a property can be used over and Q: What are the classification of property of public
over again. If yes, it is non-consummable. dominion?

CONSUMMABLES v. FUNGIBLES A:
1. Property for public use
CONSUMMABLES FUNGIBLES 2. Property for public service
Those properties which Things which can be 3. Property for the development of national wealth
cannot be used according to substituted by another thing
their nature without being Q: What is a property for public use?
consumed, eaten up, or used
up. A: These are properties which can be used by like roads,
Test: Whether it can be used Test: intention of the parties bridges, state rivers, and the like.
over and over again
Consummables do not Q: What is property for public service?
necessarily mean they are
fungibles
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
A: Properties belonging to the State which can be used only
by those who are authorized to do so like buildings for
government offices or departments, vehicles for public
officials, firearms, etc.
Q: How about those for the development of the national
wealth?
A: These are forest lands, minerals, etc.
Q: Can the properties of public dominion be subject of
negotiations for contract purposes?
A: No. Properties of public dominion are properties outside
the commerce of men, hence, when it is outside the
commerce of men it cannot be the subject of negotiations for
contract purposes.
Q: What are the characteristics of property of public
dominion?
A:
1. Outside the Commerce of Man
2. Cannot be acquired through prescription
3. Cannot be levied upon execution or attachment
4. In general, may be used by everybody except
properties intended for public services
5. May be real or personal property
6. Cannot be burdened by voluntary easement
7. May either be real or personal property
Q: What is the Doctrine of Jura Regalia?
A: All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State. With the
exception of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and
utilization of natural resources shall be under the full control
and supervision of the State. The State may directly
undertake such activities, or it may enter into co-production,
joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least 60 per
centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and
under such terms and conditions as may provided by law. In
cases of water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of waterpower,
beneficial use may be the measure and limit of the grant.
Q: What are the properties of Public Dominion under
Article420, NCC?
A:
1. Roads national highways and roads constructed
and maintained by DPWH
___________________________
2. Canals artificial waterways, drainage, irrigation or
navigation
3. Rivers includes the running waters, bed and the
bank
Accretion on riverbanks
a. Natural belongs to the owner of land adjacent
to bank
b. Artificial belongs to the State
4. Torrents
5. Ports and Bridges Constructed by the State
Ports includes airports and seaports
6. Charging of fees to the public does not determine
the character of the property still for public use
Banks
7. Shores space which is alternately covered and
uncovered by the water with movements of the
tides
8. Roadsteads
9. Others of Similar Character - Creeks
10. Those Belonging to State which are Intended for
Some Public Service or for the Development of the
National Wealth
NOTE: Art XII, Sec 3 of the 1987 Constitution:
Lands of Public Domain
1. Agricultural can be alienated
2. Forest/ Timber
3. Mineral
4. National Park
Q: Does the collection of fees for the use of public property
affect its public character?
A: No. In Manila International Airport Authority v. CA, it was
held that as long as the property is intended for public use, it
will remain property for public dominion notwithstanding the
fact that fees have been collected from the people. Such fees
collected will not affect the character of the property as such
are only used for maintenance purposes.
Art. 421. All other property of the State, which is not of the
character stated in the preceding article, is patrimonial
property. (340a)
Q: What are patrimonial property of the state?
A: These are properties of the state which is not intended for
public use, public service or for the development of the
national wealth.
These are acquired by the state in its private capacity. Hence,
it can be subject to prescription or appropriation and can be
an object of ordinary contracts or agreements.
Q: What is the coverage of patrimonial property?
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
A:
1. Owned by the State in a private / proprietary capacity
2. Properties of Public Dominion no longer intended for
public use or public service
Q: How can a property be classified as a patrimonial
property?
A: An Executive or Legislative act is necessary to reclassify
property into patrimonial. The conversion cannot be inferred
from non-use.
Examples:
1. Friar Lands (Act 1120) lands acquired by the
government from religious corporations or orders
2. Alienable and Disposable Lands of Public Domain
3. Lands Covered by RA7227 military reservations no
longer needed for defense or military purposes are
reclassified as patrimonial properties
4. Reclaimed lands along Pasay City including that of
MOA
Art. 422. Property of public dominion, when no longer
intended for public use or for public service, shall form part
of the patrimonial property of the State. (341a)
Q: What is the coverage of patrimonial property?
A:
1. Owned by the State in a private / proprietary capacity
2. Properties of Public Dominion no longer intended for
public use or public service
Q: Can the property of public dominion intended for the
development of national wealth be converted to
patrimonial property?
A: No. Only property for public dominion intended for public
use and public service when no longer intended for that
purpose may be converted to patrimonial property and
excluded those intended for the development of national
wealth.
Q: What if the property is abandoned, can it be alienated
already?
A: No. A formal declaration from the Executive Department
that the property is no longer intended for public use or
public service is a condition sine qua non for it to be
converted to patrimonial property.
Q: Can the local government declare or withdraw a public
property from public use?
A: Generally, no. Except when the power or authority is
granted by law.
___________________________
Art. 423. The property of provinces, cities, and
municipalities is divided into property for public use and
patrimonial property. (343)
Art. 424. Property for public use, in the provinces, cities, and
municipalities, consist of the provincial roads, city streets,
municipal streets, the squares, fountains, public waters,
promenades, and public works for public service paid for by
said provinces, cities, or municipalities.
All other property possessed by any of them is patrimonial
and shall be governed by this Code, without prejudice to the
provisions of special laws. (344a)
NOTE:
a. Provinicial roads
b. city streets
c. municipal streets
d. squares, fountains
e. public waters; and
f. public works for public service
Local government cannot withdraw a place for public se and
declare such as patrimonial without the grant from congress.
Even if a public plaza is built on a private land, it shall be
considered as property for public use and the owner of the
land is deemed to have waived waived his right over the land
due to the continuous enjoyment and use of such as public
plaza.
Classification of municipal property devoted for distinctly
governmental purposes as public, under the Law of Municipal
Corporations (Special Law) should prevail over the Civil Code
(General Law).
LGUs have no authority to control or regulate the use of
public properties unless specific authority is vested upon
them by Congress
Q: What are the classification of property of political
subdivisions of the state?
A:
1. Property for public use
2. Patrimonial property
Property for public use in provinces, cities and municipalities
are governed by the same rules as property of public
dominion of same character.
Hence, it is outside the commerce of man. As long as they are
devoted for public use or intended for public use, they are
9
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
not subject to ordinary contracts, cannot be donated,
attached, or levied upon on execution.
Art. 425. Property of private ownership, besides the
patrimonial property of the State, provinces, cities, and
municipalities, consists of all property belonging to private
persons, either individually or collectively. (345a)
Q: Who may own lands?
A: Only Filipino citizens can acquire alienable and disposable
public lands.
Q: Can alien acquire private ownership over the lands?
A: As a general rule, aliens have no right to acquire any public
or private lands in the Philippines. However, through
hereditary succession, an alien may acquire alienable and
disposable land.
Q: What is the KRIVENKO DOCTRINE?
A: The capacity to acquire private lands is made dependent
on the capacity to acquire lands of public domain.
Under the Krivenko Doctrine, non-Filipinos cannot acquire or
hold title to private lands or to the lands of the public
dominion except only by way of legal succession.
PROVISIONS COMMON TO THE THREE PRECEDING
CHAPTERS
Art. 426. Whenever by provision of the law, or an individual
declaration, the expression "immovable things or property,"
or "movable things or property," is used, it shall be deemed
to include, respectively, the things enumerated in Chapter 1
and Chapter 2.
Whenever the word "muebles," or "furniture," is used
alone, it shall not be deemed to include money, credits,
commercial securities, stocks and bonds, jewelry, scientific
or artistic collections, books, medals, arms, clothing, horses
or carriages and their accessories, grains, liquids and
merchandise, or other things which do not have as their
principal object the furnishing or ornamenting of a building,
except where from the context of the law, or the individual
declaration, the contrary clearly appears. (346a)
___________________________
Title II. - OWNERSHIP
CHAPTER 1
OWNERSHIP IN GENERAL
Art. 427. Ownership may be exercised over things or rights.
(n)
Q: What is ownership?
A: Juridical relation of a person over a thing by virtue of
which said person has the exclusive power or authority to
receive all the benefits and advantages arising from said
thing, save those restricted by law or by recognized rights of
others.
Bundle of rights that may be exercised over a property;
independent right of exclusive enjoyment and control of the
thing for the purpose of deriving therefrom all advantages
required by the reasonable needs of the owner (holder of
right) and the promotion of the general welfare but subject
to the restrictions imposed by law and the right of owner;
real right to enjoy, dispose, exclude and recover [EDER] a
thing without limit other than those required by law or
imposed by the owner himself
A thing pertaining to one person is completely subject to his
will in everything not prohibited by law.
It is an independent right. Can refer to both things and rights
Q: What is dominion?
A: Absolute control over a property except as may be
restrained by law.
Q: What are the kinds of ownership?
A:
1. Full ownership- this includes all rights of an owner
2. Naked ownership- this is ownership where the right to
the use and the fruits has been denied.
3. Sole ownership- where the ownership is vested only in
one person
4. Co-ownership- when the ownership is vested in 2 or
more owners.
NOTE:
Naked ownership + Usufruct = FULL OWNERSHIP
Full ownership Naked Ownership = USUFRUCT
Full ownership Usufruct = NAKED OWNERSHIP
RIGHTS OF AN OWNER
Q: What are the Rights of an Owner?
A:
10
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
1. Right to enjoy the property (Art428 par1, NCC) Art. 428. The owner has the right to enjoy and dispose of a
2. Right to dispose the property (Art428 par1, NCC) thing, without other limitations than those established by
3. Right to recover property from any holder or possessor law.
(Art428 par2, NCC)
4. Right to exclude any person from enjoyment and disposal The owner has also a right of action against the holder and
of the property (Art429, NCC) possessor of the thing in order to recover it. (348a)
5. Right to enclose or fence the land or tenement (Art430,
NCC) 3 RIGHTS OF OWNER:
6. Right to demand indemnity for damages suffered due to
lawful interference by a third person to avert an 1. Right to enjoy a thing
imminent danger (Art432, NCC) It is the right to collect the rents, fruits, benefits which accrue
7. Right to just compensation in case of eminent domain from a thing (jus fruendi).
(Art435, NCC)
8. Right to construct any works or make any plantations 2. Right to dispose of a things
and excavations on the surface or subsurface of the land It includes the right to sell, donate, alienate and encumber his
(Art437, NCC) property. Note that the right to destroy subject to restrictions
9. Right to hidden treasure found in the owners property imposed by law. Also, the right to chose not to
(Art438, NCC) destroy/dispose.
10. Right to accession (Art440, NCC)
3. Right to recover a thing
Alternative answer: Recover the possession of his property which is unlawfully
taken or withheld from him by another. This right is given
1. Jus utendi (to use) only to owner.
2. Jus fruendi (to fruits)
3. Jus dispodendi (to dispose) ACTIONS FOR RECOVERY OF POSSESSION
4. Jus vindicandi (to recover)
5. Jus abutendi (to abuse) Q: What are the actions for the recovery of possession?
6. Right to exclude
7. Right to enclose A:
A. For Real Property
Q: What are the attributes of Ownership? 1. Forcible entry or unlawful detainer
2. Accion publiciana
A: 3. Accion reinvindicatoria
1. Jus Utendi - Right to use the property without destroying
the substance B. For Personal Property
2. Jus Fruendi- Right to the fruits 1. Replevin
3. Jus Disponendi- Right to dispose or alienate
4. Jus Abutendi- Right to abuse or to consume the thing by C. Ancillary remedies common to both
its use 1. Writ of preliminary mandatory injunction
5. Jus Possidendi- Right to Possess 2. Writ of possession
6. Jus Vindicandi- Right to recover
PARTICULARS PRESCRIPTIVE ISSUE
Noteworthily, Art. 428 mentions only three rights. The reason PERIOD
for this is that the right to enjoy is included in jus utendi, jus Forcible Entry a summary Within 1 year Mere physical
fruendi, jus possidendi and jus abutendi. action to recover material or from possession (de
physical possession of real dispossession facto) not
property when a person juridical
Q: What are the kinds of ownership? originally in possession was possession nor
deprived through: ownership
A: a. Force
1. Full ownership- includes all the rights of an owner b. Intimidation
2. Naked ownership- case of usufruct; right to use and right c. Strategy
to fruits has been denied d. Threat
3. Sole ownership- ownership belongs to only one person e. Stealth
4. Co-ownership- ownership belongs to 2 or more
NOTE: The possession is
unlawful from the very
beginning
Unlawful detainer- action Within 1 year
when possession by a from unlawful

11
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
landlord, vendor, vendee, or possession FORCIBLE ENTRY ACCION PUBLICIANA
other person of any land or a. Expiration of Filed 1 year from the time of Filed 1 year after the
building is being unlawfully lease unlawful possession through: unlawful possession without
withheld after the expiration b. Date of
a. Force FISTS, notwithstanding and
or termination of the right to demand to
hold possession by virtue of vacate
b. Intimidation shall prescribe in 10 years
a contract express or implied c. Strategy
d. Threat
NOTE: Possession by the 3
rd
e. Stealth
person is initially lawful
through a contract, express Concerned with the issue of Concerned with the issue of
or implied but upon right to physical possession who has the better right of
expiration or termination of of real property possession over real property
the same, the person
withheld the property from
Filed at MTC Filed at RTC
its lawful owner, thus the
owner cannot exercise his Q: Is there a situation where a basis for unlawful taking is a
rights over the property. ground for forcible entry, but the action filed is an action
publiciana?
Not the proper remedy if the
purpose is not to recover A: Yes.
possession but to exact
specific performance
LIMITATIONS ON THE RIGHT OF OWNERSHIP
Action publiciana- plenary Within 10 years Possession de
action to recover the better which will reckon jure (juridical
right of possession 1 year after the possession) Q: What are the limitations on the right of ownership?
unlawful
NOTE: There is absence of possession A:
FISTS (a) Imposed by state
Action reinvindicatoria- Within 10 to 30 ownership i. Police power
action to recover possession years ii. Power of taxation
based on allegations of
iii. Power of eminent domain
ownership of property by
plaintiff
Replevin-action or (b) Imposed by law such as legal easements
provisional remedy for i. Easement relating to waters
recovery of personal ii. Right of way
property under Rule 60 iii. Party wall
Writ of preliminary iv. Light an view
mandatory injunction-
v. Drainage
availed of in an original case
of forcible entry and during
vi. Intermediate distances
the appeal, requiring the vii. Easement against nuissane
defendant to do something viii. Lateral and subjacent support
or give back the possession
of the land (c) Imposed by the owner
Writ of possession- is an
(d) Imposed by the grantor
order directing the sheriff to
(e) Imposed by the constitution
enter into the land and give
the possession thereof to the
person entitled under Q: What are the limitations on Ownership imposed by Law?
judgment
A:
Q: When is accion publiciana or accion reinvindicatoria may 1. Legal Easement
be filed? 2. Art25, NCC during a period of public want or
emergency, thoughtless extravagance in expense for
A: These actions is filed where in the complaint it does not pleasure or display may be stopped by order of the
aver the state how the entry is affected and when courts at the instance of any government or private
dispossession started. charitable institution
3. Sec118, CA141 Lands acquired under free patent or
Q: Distinguish forcible entry and acction publiciana. homestead cannot be subject to encumbrance or
alienation within five years from the issuance of the
A: patent

12
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
4. Legitime
5. Conflict of Private Rights (example, accession continua)
Q: What are the limitations Imposed by the Owner Himself?
A:
1. Voluntary Easement
2. When owner transmits his property to another person
(examples, lease, commodatum, donation or will)
3. Owner imposes restrictions or limitations on the right of
ownership at the time he continues to be the owner of
the property (ex. Donor or testator may prohibit partition
of property for a period not exceeding 20years)
NOTE: Perpetual prohibition to alienate is void.
Q: What is police power?
A: The inherent power of the state exercised for the purpose
of promoting general welfare, comfort and convenience of
the people by restraining and regulating liberty and property.
Q: What is the power of eminent domain?
A: The inherent power of the State that enables it to forcibly
acquire private lands intended for public use upon payment
of just compensation to the owner. It is only applicable where
the owner is unwilling to sell or cannot accept the purchase
price can there be an expropriation. It is subject to just
compensation and due process of law.
Q: What is the power of taxation?
A: The power of the government to raise revenue in order to
support its existence and carry out its legitimate objectives
Art. 429. The owner or lawful possessor of a thing has the
right to exclude any person from the enjoyment and
disposal thereof. For this purpose, he may use such force as
may be reasonably necessary to repel or prevent an actual
or threatened unlawful physical invasion or usurpation of
his property. (n)
PRINCIPLE OF SELF-HELP
Q: What is the PRINCIPLE OF SELF-HELP?
A: Authorizes an owner or lawful possessor of a property to
use reasonable counter-force to prevent or stop another
person from taking the formers property. However, force
must be reasonable necessary to repel the unlawful physical
invasion or usurpation of property. The threat is actual if
threatened unlawful physical invasion.
Q: What are the requisites under principle of self-help?
___________________________
A:
1. Reasonable force is used
2. Such force is used by the owner or lawful possessor
3. There is no delay
4. Actual or threatened physical invasion or usurpation or
immediately after the dispossession to regain possession
Q: What is the effect of delay?
A: Once delay has taken place, even if excusable, the owner
or lawful possessor must resort to judicial process for
recovery of property for he is no longer justified in taking the
law into his own lands.
rd
Q: Can the right of self-help be exercised with 3 persons?
A: Yes, a third person who is not a possessor may repel the
unlawful possession on the property owned by another. In
such an event, he is acting as a negotiorum gestor, the owner
must indemnify him for injuries sustained.
Q: What is the test of reasonableness?
A:The reasonableness of the defensive acts resorted to by a
possessor is determined not by what he imagined to exist but
by the objective situation.
Art. 430. Every owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead hedges,
or by any other means without detriment to servitudes
constituted thereon. (388)
Q: What is the limitation on the right of the owner to
enclose or fence ones land or tenement?
A: Every owner may enclose or fence his land or tenement by
means of walls, ditches, live or dead hedges or by any other
means provided that in so fencing the property, no servitude
or easement constituted thereon should be impaired.
Art. 431. The owner of a thing cannot make use thereof in
such manner as to injure the rights of a third person. (n)
Property owner can use his property in any manner he
desires provided he does not injure the rights of others
Art. 432. The owner of a thing has no right to prohibit the
interference of another with the same, if the interference is
necessary to avert an imminent danger and the threatened
damage, compared to the damage arising to the owner from
the interference, is much greater. The owner may demand
13
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
from the person benefited indemnity for the damage to A: The owner will seek reimbursement from all those who
him. (n) benefited from the destruction of his property.

DOCTRINE OF INCOMPLETE PRIVILEGE OR DOCTRINE OF Q: Differentiate the Doctrine of Self-Help from Doctrine of
STATE OF NECESSITY State of Necessity.

GR.: A person cannot interfere with the right of ownership Doctrine of Self-Help State of Necessity
with another Invoked by the owner or Availed by another person
lawful possessor in against someone elses
XPNs: protection of his right to property for the purpose of
1. Doctrine of incomplete privilege or state of necessity prevent other persons from averting an imminent
2. Principle of the Least Evil interfering with the danger to himself or to
property another person or their
Q: What is the basis of Art. 432? property

A: It is based on the Doctrine of State of Necessity which is

likened to a justifying circumstance under the RPC.

Q: What is the Doctrine of State of Necessity?

Art. 433. Actual possession under claim of ownership raises
A: It is the principle which authorizes the destruction of disputable presumption of ownership. The true owner must
property which is lesser in value to avert the danger poised to resort to judicial process for the recovery of the property.
another property the value of which is much greater. (n)

In this case, the owner of the sacrificial property is obliged to
tolerate the act of destruction but is subject to
reimbursement by all those who benefited.
The interference is indispensible to avert the threatened
damage or danger. Note that the danger or damage must be
imminent.
If a person thought that he is in a state of necessity when
actually he is not and in the process he destroyed the
property of another, his act is illegal. If the owner himself is
the cause of the imminent danger, no indemnification.
Q: What are the requisites under this Doctrine?
Q: When can there be a disputable presumption of
ownership?
A: There is disputable presumption of ownership when a
person is in actual possession of the property under the claim
of ownership. Thus, the person in possession of the property
is presumed to be the owner subject to strong, clear and
convincing evidence to the contrary.
Q: What is the resort of the owner rebutting the
presumption?
A: The owner may resort to judicial process to recover the
property of the person.

A: Q: What are the requirements to prove the claim?

1. Interference necessary to avert an imminent danger and
rd
the threatened damage to the actor or a 3 person
2. Damage to another is much greater than damage to
property
NOTE: In case of conflict, the DOCTRINE OF STATE OF
NECESSITY will prevail, because there is no unlawful
aggression when a person or group of persons acts pursuant
to the right given in a state of necessity.
A:
1. Proper identification of the property
2. Title must be clear, strong and credible
a. If both claims are weak, the claim of the actual
possessor of the land will prevail because he is
the presumed owner
b. Where both parties are equally at fault, the
condition of the possessor is the best

No Criminal Liability or Civil Liability Except: civil liability
borne by persons for whose benefit the harm has been
prevented.
Q: What is the right of the owner whose property is
destructed by reason of the state of necessity?
Q: Why cant the plaintiff rely on weakness of defendant?
A:
1. Possible that neither is the true owner, defendant-
possessor is preferred
2. Possessor is presumed the owner
3. Possessor in good faith, not required to always carry
proof of ownership

14
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
4. He who alleges must prove
Art. 434. In an action to recover, the property must be
identified, and the plaintiff must rely on the strength of his
title and not on the weakness of the defendant's claim. (n)
Q: What are the requisites for the action to recover?
A:
1. The plaintiff must properly identified the property
2. The plaintiff must have better title over the defendant
3. The plaintiff must rely on the strength of his title and not
on the weakness of defendants title.
To identify the property, the plaintiff must establish the
boundary of the land then and the established boundaries
must be exactly the same with the surveyed one. Failure to
do so will justify the dismissal of action.
Art. 435. No person shall be deprived of his property except
by competent authority and for public use and always upon
payment of just compensation.
Should this requirement be not first complied with, the
courts shall protect and, in a proper case, restore the owner
in his possession. (349a)
EMINENT DOMAIN
Q: What is the power of eminent domain?
A: It is the power or right of the state to acquire property
whether registered or not for public use upon payment of
just compensation.
Q: What is expropriation?
A: Refers to the procedure by which the property is acquired.
Q: What are the requisites of Eminent Domain?
A:
(1) private property as the object of expropriation
(2) property is taken by the state or competent
authority
(3) public use
(4) attended with due process
(5) just compensation
Q: What are the characteristics of the power of eminent
domain?
A:
___________________________
(1) inherent power of the state lodged with the
legislative
(2) superior right to acquire
(3) independent existence from the state (constitution
merely confirms)
(4) all encompassing, whenever it is needed it will be
given
Q: Who are the defendants in an expropriation case?
A:
1. The owners and all other persons owning, occupying or
claiming to own the property;
2. all those who have lawful interest in the property to be
condemned
Q: Can the previous owner get back the property?
A: It depends on the tenor of the decree of expropriation
a. Full ownership or fee simple title to the petitioner
remains the full owner regardless of the
disappearance or cessation of the public need of the
property
b. Subject to a condition- it will revert to the owner
when the purpose of the expropriation is terminated
or abandoned, the original owner of the property
would reacquire the property
Q: What is the formula for Just compensation?
A:
JUST COMPENSATION = market value plus (+) the
consequential damages, minus (-) the consequential benefits
Q: What are consequential damages?
A: Injuries which the owner of the property subject of
expropriation had suffered by reason of the expropriation
other than the loss of the property expropriated
Q: What are consequential benefits?
A: Gains or advantages which the property owner will enjoy
by reason of the expropriation.
Q: How do you determine the market value?
A: Market value is fixed at as of the date of actual taking or
occupation of the property by the petitioner; determined at
the time of filing of the complaint or time of taking the
property whichever transpires first (value that property will
bring, one who is not obliged to sell and one who is not
obliged to sell).
Q: Can private property be expropriated for private use?
15
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
A: Yes. Socialized Housing is extra ordinary expropriation
e.g. to solve the problem of squatting. Although, it is for
private purpose, it inures to the benefit of public welfare.
Q: What is the effect when just compensation is not paid?
A: As a general rule, when the property is expropriated for
public use, and the private owner was not paid of just
compensation, he cannot recover the property, he may go to
the COA for the claim of sum of money. However, while the
law allows that just compensation be not paid immediately at
the time of taking, the private owner may recover the
property if it is paid within the reasonable time prescribed by
the law, which is 5 years from the finality of judgment.
Q: When the expropriated property is no longer used for
public purpose can the previous owner recover?
A: No. When land has been acquired, for public use in fee
simple unconditionally, either by the exercise of E.D. or by
purchase, the former owner retains no rights in the land
The nature of the title transfer is ABSOLUTE, unless there is
an express stipulation that if the expropriated properly
ceases to serve its public use, the same shall revert to the
previous owner
Art. 436. When any property is condemned or seized by
competent authority in the interest of health, safety or
security, the owner thereof shall not be entitled to
compensation, unless he can show that such condemnation
or seizure is unjustified. (n)
POLICE POWER
Q: What is police power?
A: The inherent power of the state exercised for the purpose
of promoting general welfare, comfort and convenience of
the people by restraining and regulating liberty and property.
A: What are the requisites for exercise of police power?
A:
1. interest of the general public (public safety, health,
security)
2. means employed is necessary
3. due process
4. no payment of JC unless condemnation is unjustified
5. owner must be indemnified
Q: Differentiate police power from eminent domain?
A:
___________________________
Police power Eminent Domain
No payment of JC With payment of JC
Property destroyed/ Property taken for public
condemned use
NOTE: When condemnation is justified, no valid exercide of
PP, the indemnity is based on damages caused by an illegal
act. When PP is properly exercised, always no indemnification
Art. 437. The owner of a parcel of land is the owner of its
surface and of everything under it, and he can construct
thereon any works or make any plantations and excavations
which he may deem proper, without detriment to
servitudes and subject to special laws and ordinances. He
cannot complain of the reasonable requirements of aerial
navigation. (350a)
SURFACE RIGHT
Q: What is the extent of the ownership of a parcel of land?
A: The owner of parcel of land is also the owner of the
surface and sub-surface thereof. He is also the owner of the
aerial space exactly corresponding to the size of his land
subject to reasonable requirements of aerial navigation.
Q: What is surface right?
A: The right extended to the owner of parcel of land with
respect to its sub-surface is up to the extent that the owner
could utilize it. However, when minerals are found in it, it will
be owned by the State pursuant to Regalian Doctrine as these
minerals form part of the property of the State for the
development of national wealth.
Q: What are the extent of ownership?
A:
1. Horizontally: extends up to the boundaries
2. Vertically:
a. Downwards- extends below the surface and above it
to the extent required by the economic utility to the
owner, in relation to the exploitation that may be
made of the property. But minerals and power
resources of the subsoil pertains to the State
pursuant to the Regalian Doctrine.
b. Upwards/airspace- It extends up to the reasonable
requirements of aerial navigation
Q: What is Ad coelum?
A: Owner of land has rights not only to its surface but also to
everything underneath and the airspace above it up to a
reasonable height
16
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Q: What are the limitations or restrictions to ownership?
A:
1. Cannot detriment servitudes- works, plantations,
excavations made must not prejudice easements
and servitudes
2. Subject to special laws and ordinances
3. Subject to reasonable requirements of aerial
navigation
Lands cannot be classified as mineral underneath and
agricultural on the surface; rights over a land are indivisible
land must either be completely mineral or completely
agricultural.
Construction of underground tunnels by NAPOCOR without
the consent of the owners of the lands affected deprived the
owners in the construction of motorized deep wells
underground tunnel imposed limitations on Ibrahims use of
property (esp. the sub-terrain portion), hence, owners are
entitled to just compensation
Caves are part of national wealth apply regalian doctrine
whether the entrance is located in a private or public land
and whether entrance is naturally formed or manmade (RA
9072 National Caves and Cave Resources Management and
Protection Act)
When it is said that man owns, or may own, to the heavens,
that merely means that no one can acquire a right to the
space above him that will limit him in whatever use he can
make of it as part of his enjoyment of the land. To this extent,
his title to the air is paramount. No other person can acquire
any title or exclusive right to any space above him. Any use of
such air or space by others which is injurious to his land, or
which constitutes an actual interference with his possession
or his beneficial use thereof, would be trespass for which he
would have a remedy.
Art. 438. Hidden treasure belongs to the owner of the land,
building, or other property on which it is found.
Nevertheless, when the discovery is made on the property
of another, or of the State or any of its subdivisions, and by
chance, one-half thereof shall be allowed to the finder. If
the finder is a trespasser, he shall not be entitled to any
share of the treasure.
If the things found be of interest to science of the arts, the
State may acquire them at their just price, which shall be
divided in conformity with the rule stated. (351a)
___________________________
Art. 439. By treasure is understood, for legal purposes, any
hidden and unknown deposit of money, jewelry, or other
precious objects, the lawful ownership of which does not
appear. (352)
HIDDEN TREASURE
Q: What is hidden treasure?
A: Any hidden and unknown deposit of money, jewelry or
other precious objects, the lawful ownership of which does
not appear.
Hidden treasures refer to processed items such as deposit of
money, jewelry, precious objects (gold bar, silver coins). It
does not refer to raw materials which are considered of value
which are considered as natural resources.
Q: State the rule regarding hidden treasure.
A:
G.R.: If owner is finder, it totally belongs to the owner of the
land, building, or other property where it is found.
XPN: If the finder is different from the owner, the finder is
entitled to 1/2
Q: What are the requisites to be entitled to share?
A:
1. Discovery was made on the property of another, or of
the State or any of its political subdivisions
2. Discovery was made by chance
3. He is not a trespasser or agent of the landowner.
NOTE: The state may in the interest of science or arts acquire
such hidden treasure at a just price.
Q: What is the meaning of By Chance?
A: The finder had no intention to search for the treasure.
There is no agreement between the owner of the property
and the finder for the search of the treasure.
Q: Is a trespasser entitled to get a share?
A: No. he cannot be allowed to benefit for his unlawful act.
RA 8492 (National Museum Act of 1998) permits are
required for the discovery / recovery of hidden treasures,
shipwrecks / sunken vessels recovery exclusively for materials
of cultural and historical values such as:
a. Arts
b. Archeological artifacts
c. Ecofacts
d. Relics
17
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
e. Other materials embodying the cultural and natural
heritage of the Filipino nation as well as those of CHAPTER 3
foreign origin RIGHT OF ACCESSION

DENR AO 2002-04 as amended by DENR AO 2004-2003, in GENERAL PROVISIONS

relation to EO 35 permits for treasures which are not of
cultural and historical value whether or not hunting is to be
conducted on private or governmental land and upon
discovery is turned over to National Museum for
determination of whether it has cultural or historical value
if affirmative, items will be given to National Museum; if
negative, turned over to an oversight committee of DENR
Q: What is the rule regarding the sharing of the net
proceeds?
Art. 440. The ownership of property gives the right by
accession to everything which is produced thereby, or which
is incorporated or attached thereto, either naturally or
artificially. (353)
SECTION 1. - Right of Accession with Respect to
What is Produced by Property
Q: What is right of accession?

A: A: Right of ownership of which an owner of a thing has over

1. Within public lands 75% to government; 25% to permit the products of said thing, as well as to all things inseparably
holder attached or incorporated thereto, whether naturally or
2. Within private lands 30% to the government; 70% artificially produced, incorporated, attached.
shared by permit holder and landowner
3. Shipwreck / sunken vessel recovery 50% to Q: What is accession continua?
government; 50% to permit holder
A: Right to things attached or incorporated.
Q. What if the treasure cannot be divided?
Q: What are the classification of accession?
A. Co-ownership between the finder and owner of the land
will be created A:
I. Accession to the fruits (discreta)
Q. What if the owner of the land hired services of a group of a. Natural fruits
man for the purpose of finding a hidden treasure, if there is b. Industrial fruits
indeed a hidden treasure, who owns the hidden treasure? c. Civil fruits

A. It depends. If there is an agreement between the owner II. Accession by attachment or incorporation (continua)
and the hired men then the latter will be entitled for a a. Real Property
portion of the treasure. Absent such agreement, the treasure 1. Accession industrial
belongs to the owner of the property. a. Building
ii. planting
Q. A scavenger found a bag filled with bank notes and cash ii. sowing
in a dumpsite will it be considered a hidden treasure?
2. Accession natural
A. No. Bills and notes from the banks have serial numbers. i. alluvium
The notes identity can be traced easily, one of the requisites ii. avulsion
of hidden treasure is lacking that is that the owner appears to iii.change of course of rivers
be unknown. iv.formation of islands

Q. How about the Yamashita treasure? b. Personal property

1. Adjunction or conjunction
A. Under PD 172, 25% is granted to the finder and 75% will i. engraftment
belong to the State. ii.attachment
iii. weaving
iv.painting
v.writing

2. Mixture
3. specification

Q: Is accession a mode of acquiring ownership?

18
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
KINDS OF FRUITS
A: No.
Q: What are natural fruits?
Q: Under Art. 712, what are the modes of acquiring
ownership? A: Natural fruits are the spontaneous products of the soil,
and the young and other products of animals.
A:
b. Occupation Q: What are the 2 Kinds of Natural Fruits
c. Prescription
d. Donation 1. Spontaneous products of the soil those which
e. Succession appear without intervention of human labor
f. Law 2. Young and other products of animals
g. Intellectual Creation
h. Tradition Q: What are industrial fruits?
i. As a consequence of contracts
A: Industrial fruits are those produced by lands of any kind
through cultivation or labor.

Art. 441. To the owner belongs: Q: What are civil fruits?

(1) The natural fruits;
(2) The industrial fruits;
(3) The civil fruits. (354)
Q: What is the rule on the owners right of accession with
respect to what is produced by his property?
A: To the owner belongs the:
1. natural fruits;
2. industrial fruits;
3. civil fruits. (Art. 441, NCC)
Art. 442. Natural fruits are the spontaneous products of the
soil, and the young and other products of animals.
Industrial fruits are those produced by lands of any kind
through cultivation or labor.
Civil fruits are the rents of buildings, the price of leases of
lands and other property and the amount of perpetual or
life annuities or other similar income. (355a)
A: Civil fruits are the rents of buildings, the price of leases of
lands and other property and the amount of perpetual or life
annuities or other similar income.
Q: The general rule is that the fruits will belong
automatically the owner of the thing which produces fruits
following the principle that accessory follows the principal.
What are the exceptions?
A:
(a) antichresis fruits pertain to the antichretic creditor with
the obligation to apply the fruits to the payment of the
interest first, if any and then to the principal
(b) lease of lands which yield fruits; lessee who gets the
fruits
(c) usufruct; usufructuary is entitled to fruits
(d) possessor in good faith; entitled to fruits received before
before the possessor is legally interrupted in his
possession
(e) fruits of property donated and subject to collation
Q: Who are the principal parties in accession?

A:
1. land owner without which there can be no accession
Art. 443. He who receives the fruits has the obligation to pay 2. builder
the expenses made by a third person in their production, 3. planter
gathering, and preservation. (356) 4. sower

Obligation of the owner who receives the fruit from a third

person
Art. 444. Only such as are manifest or born are considered
Q: What is the obligation of the owner who receives the
as natural or industrial fruits.
fruit from a third person?
With respect to animals, it is sufficient that they are in the
A: He who receives the fruits has the obligation to pay the
womb of the mother, although unborn. (357)
expenses made by a third person in their production,
gathering, and preservation.

19
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
NOTE: Only such as are manifest or born are considered as
natural or industrial fruits.
Q: What is the rule regarding the animals?
A: With respect to animals, it is sufficient that they are in the
womb of the mother, although unborn.
Q. What kind of fruits are cloned animals?
A. It depends on two options. First, applying the literal
definition of the law that even if the animal is made through
the intervention o man, it is considered as a natural fruit, on
the other hand, applying statutory construction (history of
the provision); definitely the definition of natural fruit that
time was the young produced by a mother animal. Nobody
had foreseen during 1950s that cloning would be possible
hence considering human intervention, it can now be
considered as industrial fruit.
SECTION 2. - Right of Accession with Respect
to Immovable Property
Art. 445. Whatever is built, planted or sown on the land of
another and the improvements or repairs made thereon,
belong to the owner of the land, subject to the provisions of
the following articles. (358)
Whatever is built, planted or sown on the land of another and
the improvements made belong to the owner of the land.
This rule is however subject to the good faith or bad faith of
the BPS LO.
Exceptions:
1. if value of improvement is more than the value of land, it
shall belong to conjugal partnership subject to
reimbursement of the value of the land to the owner
spouse
2. value is less than the value of the land, it shall belong to
owner spouse, subject to the reimbursement of the value
of the property of the CPG
Q: What are the INDUSTRIAL ENDEAVORS?
A:
1. building construction of any kind, with roof for
residential, office, social, commercial
2. planting setting into the soil or land seeds of trees
3. sowing act of scattering or spreading of germinated
seeds indiscriminately or evenly
Art. 446. All works, sowing, and planting are presumed
made by the owner and at his expense, unless the contrary
is proved. (359)
___________________________
All works are presumed made by the owner at his expenses,
unless contrary is proved
Q: What is accession continua?
A: Accession Continua involves the union of two or more
things belonging to different owners in such a manner that
they cannot be separated from each other without causing
substantial injury to the things involved. It applies only where
there is controversy as to who shall be entitled to the
resulting union of 2 or more things belonging to different
owners.
This presupposes the absence of any agreement, express or
implied, between or among the owners of different things
involved.
If there is an agreement, parties shall be governed by their
agreement and secondarily by law but not the law on
accession continua
RULES:
1. He who is in good faith may be held responsible but will
not be penalized.
2. To the owner of the thing belongs the extension or
increase of such thing.
3. Bad faith of one party neutralizes the bad faith of the
other in pari delicto
4. There should be no unjust enrichment at the expense of
the others.
5. Bad faith involves liability for damages.
6. Accessory follows principal.
7. Accession exists only if the incorporation is such that the
separation would either seriously damage the thing or
diminish its value.
Q: What is industrial accession?
A: It applies only to those involving lands and material
belonging to different owners
Q: What is a building?
A: It is a generic term for all architectural work with roof,
built for the purpose of being used as mans dwelling or for
offices, clubs or theatres does not include partitions,
railings, counters and shelves.
Art. 447. The owner of the land who makes thereon,
personally or through another, plantings, constructions or
works with the materials of another, shall pay their value;
and, if he acted in bad faith, he shall also be obliged to the
reparation of damages. The owner of the materials shall
have the right to remove them only in case he can do so
without injury to the work constructed, or without the
20
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
plantings, constructions or works being destroyed. building or trees after proper indemnity. The parties shall
However, if the landowner acted in bad faith, the owner of agree upon the terms of the lease and in case of
the materials may remove them in any event, with a right to disagreement, the court shall fix the terms thereof. (361a)
be indemnified for damages. (360a)
BUILDER, PLANTER, SOWER IN GOOD FAITH
Q: What is GOOD FAITH?
Q: What is the rule when B/P/S is in good faith?
A: Not aware that there exists in his title or mode of
acquisition any flaw which invalidates it. If owner of the land A:
believes that he is the owner of the materials or owner of the a. Land Owner may appropriate after indemnifying
materials thought he is thought he is the owner of the land B/P/S with right of retention
b. Oblige b/p to pay price of land and sower to pay rent
Q: What is BAD FAITH? (value of the land must not be greater than value of
accession)
A: Possesses in any case contrary to the foregoing. The c. B/P/S will be reimbursed for necessary and useful
landowner knows from the start that he is not the owner of expenses
materials or the owner of the materials knew from the start
that his materials are used and did not oppose. Q: What if the value of the land is greater than the value of
accession?
Note that good faith is always presumed; and upon him who
alleges bad faith on the part of the possessor rests the A: If value of the land is greater than value of accession and
burden of proof. owner does not appropriate, parties shall agree on the terms
of lease. If there is disagreement, court shall fix the terms
LAND OWNER IS BUILDER, OWNER OF MATERIALS
PLANTER, or SOWER Q: What is the right of retention?
GOOD FAITH
Acquires the building, etc. 1. Remove the materials if A: Right granted as a security for the possessors (b/p/s) right
after paying the indemnity without injury to work or to indemnity for the improvements made by him and he is
for value of materials without plantings or not bound to pay rent. The purpose of this right is to
constructions being guarantee full and prompt reimbursement.
destroyed.
2. Receive indemnity for There can be no offsetting of reimbursement for necessary
value of materials and useful expenses with fruits received by the b/p/s.
BAD FAITH GOOD FAITH
Acquire after paying the 1. Remove materials in any Q: What if landowner refuses to exercise either option?
value of materials and event
indemnity for damages but 2. Be indemnified for A: Remedy is to compel the landowner to make a choice
subject to the right of owner damages
of materials to remove GR: Art 448 cannot apply to a co-owner who is a b/p/s on the
GOOD FAITH BAD FAITH land owned in common governed by rules of co-ownership
Acquire without paying Lose materials without right
indemnity to be indemnified XPN: co-ownership is terminated
BAD FAITH
Same as though both acted in good faith (in pari delicto rule When co-ownership is terminated by a partition and it
applies appears that the house of an erstwhile co-owner has
encroached upon a portion pertaining to another co-owner
which was however made in good faith, then the provisions
of Art448 should apply to determine the respective rights of
the parties.
Art. 448. The owner of the land on which anything has been
built, sown or planted in good faith, shall have the right to
Bad faith cannot be imputed to a registered owner of land
appropriate as his own the works, sowing or planting, after
when a part of his building enroaches upon a neighbors land
payment of the indemnity provided for in Articles 546 and
simply because he is supposedly presumed to know the
548, or to oblige the one who built or planted to pay the
boundaries of his land as prescribed in his certificate of title
price of the land, and the one who sowed, the proper rent.
unless one is versed in the science of surveying, no one can
However, the builder or planter cannot be obliged to buy
determine the precise extent or location of his property by
the land if its value is considerably more than that of the
merely examining his paper title
building or trees. In such case, he shall pay reasonable rent,
if the owner of the land does not choose to appropriate the
21
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Q: What are NECESSARY EXPENSES?
Q: They include repairs for the preservation, without which
thing will deteriorate.
Q: What are USEFUL EXPENSES?
A: Expenses incurred for the greater utility or productivity or
for enhancement.
Q: What are LUXURIOUS EXPENSES?
A: Those which you do not need.
Art. 449. He who builds, plants or sows in bad faith on the
land of another, loses what is built, planted or sown without
right to indemnity. (362)
BUILDER, PLANTER, SOWER IN GOOD FAITH
GR: The builder planter sower in bad faith on the land of
another, loses the improvements without right of indemnity
therefore
Exception: The B/P/S/ is entitled to reimbursement for
necessary expenses of preservation of the land.
Q: What is the reason for the exception?
A: Because the owner would still incur the expenses, if not
the property will deteriorate.
Art. 450. The owner of the land on which anything has been
built, planted or sown in bad faith may demand the
demolition of the work, or that the planting or sowing be
removed, in order to replace things in their former condition
at the expense of the person who built, planted or sowed;
or he may compel the builder or planter to pay the price of
the land, and the sower the proper rent. (363a)
RIGHTS OF LAND OWNER IN GOOD FAITH
WHEN BUILDER, PLANTER, SOWER IN BAD FAITH
Landowner can:
1. appropriate what has been built, planted or sown
without obligation to pay indemnity
2. demand from builder to demolish or remove what has
been built, planted or sown at latters expense
3. compel the b,p, to pay the price of the land, or sower to
pay the reasonable rent
4. seek damage from b,p,s
___________________________
Art. 451. In the cases of the two preceding articles, the
landowner is entitled to damages from the builder, planter
or sower. (n)
Art. 452. The builder, planter or sower in bad faith is
entitled to reimbursement for the necessary expenses of
preservation of the land. (n)
BUILDER, PLANTER, SOWER IN BAD FAITH
Q: What are the rights of a land owner when the builder,
planter, or sower is in bad faith?
A:
a.LO has right of remotion -or-
b.Oblige b/p to buy the land and sower to pay rent
(even if value of the land is greater than the value of
the accession)
B/P/S may ask for reimbursement for necessary expenses
only
Art. 453. If there was bad faith, not only on the part of the
person who built, planted or sowed on the land of another,
but also on the part of the owner of such land, the rights of
one and the other shall be the same as though both had
acted in good faith.
It is understood that there is bad faith on the part of the
landowner whenever the act was done with his knowledge
and without opposition on his part. (354a)
Art. 454. When the landowner acted in bad faith and the
builder, planter or sower proceeded in good faith, the
provisions of article 447 shall apply. (n)
Art. 455. If the materials, plants or seeds belong to a third
person who has not acted in bad faith, the owner of the
land shall answer subsidiarily for their value and only in the
event that the one who made use of them has no property
with which to pay.
This provision shall not apply if the owner makes use of the
right granted by article 450. If the owner of the materials,
plants or seeds has been paid by the builder, planter or
sower, the latter may demand from the landowner the
value of the materials and labor. (365a)
22
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Art. 456. In the cases regulated in the preceding articles,
good faith does not necessarily exclude negligence, which
gives right to damages under article 2176. (n)
Art. 457. To the owners of lands adjoining the banks of
rivers belong the accretion which they gradually receive
from the effects of the current of the waters. (336)
ACCRETION
Q: What is accretion?
A: The process whereby the soil is so deposited or the
process by which a riparian land gradually and imperceptibly
receives addition made by the water to which the land is
contiguous.
Q: What is alluvium?
A: It is the soil imperceptibly and gradually deposited on
lands adjoining the banks of rivers caused by the current of
the water.
Q: What are the essential elements of accretion?
A:
1. deposit of soil or sediment be gradual and imperceptible
2. it be the result of the action of the waters of the river (or
sea, if from the sea deposit pertains to the state)
3. the land where accretion takes place is the adjacent of
the banks of river
Q: Who is the Riparian owner?
A: He is the owner of the land adjoining rivers.
Q: Why is the soil deposited granted to owners of lands
adjoining the banks of rivers?
A:
1. to offset his loss for possible erosion of his estate due to
the current of the river
2. to compensate for his sufferings or burdens arising from
the subjection of his land to encumbrances and legal
easements
3. in the interest of agriculture it is more practical to give it
to one who is in best position to cultivate it
Q: The general rule is that an alluvion is automatically
owned by the riparian owner from the moment the soil
deposit can be seen. Does he have to register it?
A: Yes, the additional area does not automatically become
registered land. The riparian owner must register the
additional area.
___________________________
Q: What is the effect of failure to register?
A: Failure to register the acquired alluvial deposit by
accretion subjects such accretion to acquisition thru
prescription by third persons.
Q: What is the rule regarding the land caused by special
works (e.g. dikes) expressly intended by him to bring about
accretion (e.g. for reclamation purposes) and not to protect
his property from destructive force of the water of the
river?
A: They do not form part of the accretion.
Art. 458. The owners of estates adjoining ponds or lagoons
do not acquire the land left dry by the natural decrease of
the waters, or lose that inundated by them in extraordinary
floods. (367)
The owners of estates adjoining ponds or lagoons do not
acquire the land left dry by the natural decrease of the
waters, or lose that inundated by them in extraordinary
floods. This rule does not apply to lakes.
Q: What is a pond?
A: A body of stagnant water without any outlet.
Q: What is a lagoon?
A: Small lake but not very deep the hollow of which is
bounded by the elevation of the land.
Note that when the sea moves towards the estate and the
tide invades it, the same becomes a foreshore land which
consequently becomes part of the public domain.
Art. 459. Whenever the current of a river, creek or torrent
segregates from an estate on its bank a known portion of
land and transfers it to another estate, the owner of the
land to which the segregated portion belonged retains the
ownership of it, provided that he removes the same within
two years. (368a)
AVULSION OR DELAYED ACCESSION
Q: What is Avulsion?
A: Transfer of known portion of land from one tenement to
another by the force of the current. The portion of land must
be such that it can be identified as coming from definite
tenement.
23
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Note that the owner of the land which had segregated
retains his ownership over the land provided he removes the
same from where it was annexed within two years from the
time it was segregated from its source and annexed to
another tenement.
___________________________
to the owners whose lands are occupied by the new course
in proportion to the area lost. However, the owners of the
lands adjoining the old bed shall have the right to acquire
the same by paying the value thereof, which value shall not
exceed the value of the area occupied by the new bed.
(370a)

Even if claim was made in 2 years, but he still failed to
remove it, he can no longer remove it after the lapse of 2
years claim is not equal to removal (actual/ physical). It is
only possible if there is an agreement to pay the other
riparian owner the segregated portion; otherwise there must
be physical and actual removal.
Q: Differentiate alluvium and avulsion?
A:
The owner of the invaded lad becomes the owner of the old
river bed in proportion to the area lost. The automatic
ownership is granted by law.
However, this article does not apply if the river has breached
out and created a new course without abandoning the
original river bed. Dried up river for lack of flowing waters are
owned by the state since no owners were deprived of their
land.

ALLUVIUM AVULSION
1. process of soil 1. process is sudden and Art. 462. Whenever a river, changing its course by natural
deposit is gradual and abrupt causes, opens a new bed through a private estate, this bed
imperceptible 2. property detached is shall become of public dominion. (372a)
2. soil deposit is not identifiable
identifiable 3. ownership of If a river changed its course, and cuts a new bed in a private
3. alluvio belongs to the detached property is estate, the new river bed becomes property of public
owner of the land to retained subject to dominion.
which the soil has removal within 2
been deposited years
4. ownership granted to 4. ownership of the
riparian owner is detached property is Art. 463. Whenever the current of a river divides itself into
automatic not automatically branches, leaving a piece of land or part thereof isolated,
vested the owner of the land retains his ownership. He also retains
it if a portion of land is separated from the estate by the
current. (374)

Q: What are the requisites under the 2 preceeding articles?

Art. 460. Trees uprooted and carried away by the current of A:

the waters belong to the owner of the land upon which they a. there must be a natural change in the course of the
may be cast, if the owners do not claim them within six waters of the rivers
months. If such owners claim them, they shall pay the b. change must be abrupt or sudden
expenses incurred in gathering them or putting them in a c. change must be permanent
safe place. (369a) d. there must be abandonment by the owner of the bed

Trees uprooted are movable and must be claimed within 6
months. The claim does not require actual recovery, so even
after 6 months they may claim but not beyond 4 years
Once the river bed has been abandoned, the owner of the
invaded land becomes the owner of the abandoned bed to
the extent as provided in Art. 462. No positive act is needed
on the part, as it is subject thereto ipso jure from the
moment of the moment the mode of acquisition is evident.

Q: What is the basis of 4 years? It does not apply to cases where the river simply dries up
because there are no persons whose lands are occupied by
A: It is the prescriptive period for acquiring movables. the waters of the river.

Art. 461. River beds which are abandoned through the

natural change in the course of the waters ipso facto belong
24
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Art. 464. Islands which may be formed on the seas within
the jurisdiction of the Philippines, on lakes, and on
navigable or floatable rivers belong to the State. (371a)
Art. 465. Islands which through successive accumulation of
alluvial deposits are formed in non-navigable and non-
floatable rivers, belong to the owners of the margins or
banks nearest to each of them, or to the owners of both
margins if the island is in the middle of the river, in which
case it shall be divided longitudinally in halves. If a single
island thus formed be more distant from one margin than
from the other, the owner of the nearer margin shall be the
sole owner thereof. (373a)
FORMATION OF ISLANDS
Q: What are the rules as to formation of Islands (Art. 463-
465)?
A:
a. If formed by the sea:
i. Within territorial waters State
ii. Outside territorial water to the first occupant
b. If formed in lakes, or navigable or floatable rivers - State
c. If formed in non-navigable or non-floatable rivers:
i. If nearer to one margin or bank to the nearer riparian
owner
ii. If equidistant from both banks to the riparian owners
by halves
There is no accession when islands are formed by the
branching of river; the owner retains ownership of the
isolated piece of land.
___________________________
A:
1. United forming a single object;
2. Inseparable that their separation would impair their
nature or result in substantial injury to either thing;
3. At least 2 movables belonging to different owners.
Q: Who shall be the owner of the resulting object?
A: The resulting object shall belong to the owner of the
principal thing, but with the obligation to indemnify the
owner of the accessory for the value of the latter.
NOTE: Good faith is necessary in adjunction. If the owner of
the principal thing acted in bad faith, Art. 466 will not apply
but rather Art. 470 paragraph 2:
If the one who has acted in bad faith is the owner of the
principal thing, the owner of the accessory thing shall have a
right to choose between the former paying him its value or
that the thing belonging to him be separated, even though
for this purpose it be necessary to destroy the principal
thing; and in both cases, furthermore, there shall be
indemnity for damages.
Q: What are the different classes of adjunction or
conjuncrion?
A:
1. Escritura or writing- paper will pertain to writer;
2. Inclusion or engraftment- precious stone will pertain
to the owner of the ring;
3. Pinture-canvass will pertain to the painter;
4. Soldering or soldadura:

a. Ferruminacion- if both the accessory and principal

objects are of the same metal; and
SECTION 3. - Right of Accession b. Plumbatura-if the accessory and principal objects are
with Respect to Movable Property of different materials

Art. 466. Whenever two movable things belonging to 5. Tejido or Weavering-dress will pertain to the weaver
different owners are, without bad faith, united in such a who owns the cloth.
way that they form a single object, the owner of the
principal thing acquires the accessory, indemnifying the Q: What are the tests to determine the principal?
former owner thereof for its value. (375)
A:
ADJUNCTION
1. That to which the other has been united as an ornament
Q: What is adjunction? or for its use or perfection;
(if it cannot be determimed from Art. 467)
A: It is the process by virtue of which 2 movable things 2. That of greater value;
belonging to different owners are, without bad faith, united (if 2 things are of equal value (468)
in such a way that they form a single object and each of 3. That of greater volume (468);
things united. (when the value and volume cannot be applied
accroding to Senator Tolentino);
Q: What are the characteristics of Adjunction? (UST) 4. That which has greater merits, utility and volume of
things.

25
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Test to determine principal in adjunction
a. Rule of importance and purpose
b. That of greater value
c. That of greater volume
d. That of greater merits take into consideration all
pertinent provisions applicable as well as the
comparative merits, utility and volume
Art. 467. The principal thing, as between two things
incorporated, is deemed to be that to which the other has
been united as an ornament, or for its use or perfection.
(376)
Q: What are the primary factors to determine the Principal
and the Accessory?
A:
1. That the thing which is incorporated to another as
an ornament is the accessory and the other is the
principal;
2. The thing which is added to or joined is the
accessory and the other is the principal.
NOTE: The PRINCIPAL THINGS is that deemed to be that to
which the other has been united as an ornament, or for its
use or perfection.
Test of Intention or Importance which do you consider as
mere ornamentation; an object may be Principal or accessory
depending on the intention.
Art. 468. If it cannot be determined by the rule given in the
preceding article which of the two things incorporated is the
principal one, the thing of the greater value shall be so
considered, and as between two things of equal value, that
of the greater volume.
In painting and sculpture, writings, printed matter,
engraving and lithographs, the board, metal, stone, canvas,
paper or parchment shall be deemed the accessory thing.
(377)
Q: What are the secondary factors to determine Principal
and Accessory?
A: If the primary factors cannot be used, the following shall
be applied:
a. The one which has the greater value is the principal;
b. If they are of equal value, then the one with greater
volume shall be considered as the principal.
___________________________
If you cannot determine the principal:
1. that one with greater value, or
2. if same value, that of greater volume, or
3. if same volume, based on the merit
NOTE: If 3 or more objects involved, only 1 is considered as
the principal and the others are accessories.
Art. 469. Whenever the things united can be separated
without injury, their respective owners may demand their
separation.
Nevertheless, in case the thing united for the use,
embellishment or perfection of the other, is much more
precious than the principal thing, the owner of the former
may demand its separation, even though the thing to which
it has been incorporated may suffer some injury. (378)
Art. 470. Whenever the owner of the accessory thing has
made the incorporation in bad faith, he shall lose the thing
incorporated and shall have the obligation to indemnify the
owner of the principal thing for the damages he may have
suffered.
If the one who has acted in bad faith is the owner of the
principal thing, the owner of the accessory thing shall have a
right to choose between the former paying him its value or
that the thing belonging to him be separated, even though
for this purpose it be necessary to destroy the principal
thing; and in both cases, furthermore, there shall be
indemnity for damages.
If either one of the owners has made the incorporation with
the knowledge and without the objection of the other, their
respective rights shall be determined as though both acted
in good faith. (379a)
Applicable Rules
a. Owner of ACCESSORY made the incorporation in BF shall
lose the thing incorporated and have the obligation to
indemnify the owner of the principal thing for damages
he may have suffered;
b. Owner of PRINICPAL in BF: owner of the accessory shall
have the right to choose between the former paying him
its value or the thing belonging to him be separated,
even if it is necessary to destroy the principal either way
there will be indemnity for damages; and
c. Either the owner of principal or accessory made the
incorporation with the knowledge of the other and
raising no objection, both of them shall be regarded
acting in good faith.
26
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Art. 471. Whenever the owner of the material employed
without his consent has a right to an indemnity, he may
demand that this consist in the delivery of a thing equal in
kind and value, and in all other respects, to that employed,
or else in the price thereof, according to expert appraisal.
(380)
rd
The present article contemplates a 3 person who is called as
the owner of the material. Accordingly, the owner of the
material employed without his consent has a right to an
indemnity:
a. delivery of a thing similar in kind and value and in all
other respects
b. payments of the price as appraised by experts in
case the parties cannot stipulate on the price
Art. 472. If by the will of their owners two things of the
same or different kinds are mixed, or if the mixture occurs
by chance, and in the latter case the things are not
separable without injury, each owner shall acquire a right
proportional to the part belonging to him, bearing in mind
the value of the things mixed or confused. (381)
Accession by Mixture
Q: What do you mean by confusio?
A: Confusio results when liquids belonging to different
owners got mixed by agreement or by chance.
Q: What do you mean by commixtio?
A: It results when solid matters are mixed by agreement or by
chance:
1. By agreement- parties may stipulate on the terms and
conditions and shall be governed by the laws on
obligations and contracts;
2. Proportionate ownership- when the things mixed or
confused are not separable without injury, each owner
shall have the right to the resulting thing proportionate
to the VALUE of the thing he owns; and
3. By will of the parties- state of co-ownership is created if
mixture is created by chance.
Mixture by negligence: co-ownership; damages for the
negligent acts (culpa aquilana)
Negligence is not equal to BF
___________________________
Art. 473. If by the will of only one owner, but in good faith,
two things of the same or different kinds are mixed or
confused, the rights of the owners shall be determined by
the provisions of the preceding article.
If the one who caused the mixture or confusion acted in bad
faith, he shall lose the thing belonging to him thus mixed or
confused, besides being obliged to pay indemnity for the
damages caused to the owner of the other thing with which
his own was mixed. (382)
Rules applicable
1. By WILL of ONLY ONE OWNER, but in GF = rights of the
owners determined by Provisions of preceding article
(proportion to value/ co-ownership); and
2. One who cause confusion or mixture in BF = shall LOSE
the thing belonging to him plus obligated to pay damages
caused to the owner of the other thing
Rules on Who is Entitled
a. Adjunction in Good faith by either owner:
GR.: Accessory follows the principal
XPN: If accessory is much precious than the principal, the
owner of the accessory may demand the separation even
if the principal may suffer injury
b. Adjunction in bad faith by the owner of the principal:
Option of owner of accessory
i. To recover the value plus damages
ii. To demand separation plus damages
c. Adjunction in bad faith by the owner of the accessory:
i. He loses the accessory
ii. He is liable for damages
Q. When is separation of things allowed?
A. Article 469 (WAB)
1. Separation without injury;
2. Accessory is more precious than the principal; and
3. Owner of the principal acted in bad faith
Q. How is indemnity made?
A.
1. Delivery of a thing equal in kind and value; or
2. Payment of its price including the sentimental value.
27
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
MIXTURES (ARTS. 472-473)
Q: What do you mean by mixtures?
A: It is the union of materials where the components lose
their identity.
Q: What are the 2 kinds of mixtures?
A:
a. Commixtion mixture of solids
b. Confusion mixture of liquids
Q: What are the rules applicable to determine ownership?
A:
a. By will of both owners or by accident: each owner
acquires an interest in portion to the value of his material
b. By one owner in good faith: apply rule (a)
c. By one owner in bad faith:
i. He loses his rights to his materials
ii. He is liable for damages
Art. 474. One who in good faith employs the material of
another in whole or in part in order to make a thing of a
different kind, shall appropriate the thing thus transformed
as his own, indemnifying the owner of the material for its
value.
If the material is more precious than the transformed thing
or is of more value, its owner may, at his option,
appropriate the new thing to himself, after first paying
indemnity for the value of the work, or demand indemnity
for the material.
If in the making of the thing bad faith intervened, the owner
of the material shall have the right to appropriate the work
to himself without paying anything to the maker, or to
demand of the latter that he indemnify him for the value of
the material and the damages he may have suffered.
However, the owner of the material cannot appropriate the
work in case the value of the latter, for artistic or scientific
reasons, is considerably more than that of the material.
(383a)
Rules applicable
G.R.: The accessory follows the principal but the cost will
depend on the good faitg or bad faith.
Accordingly, the labor or work is deemed as the principal
while the material is the accessory. Thus, the owner of the
thing is the one who exerted the labor.
___________________________
Q: What do you mean by Specificatio?
A: It is the giving of a new form to a material belonging to
another person through the application of labor or industry
where the material used in transformed into another thing or
changed in identity. Accordingly, the nature of the object is
retained even if transformed.
Eg: Mango fruit into mango juice, grapes into wine
Rules applicable
(1) When MAKER (principal) is in GF:
a. Maker shall appropriate the new thing, but must
indemnify the owner of the material for the value
b. The maker cannot appropriate the new thing if the
material transformed is worth more than the new thing;
The OM can appropriate the new thing subject to
payment of the value of the work or demand indemnity
for the material with damages.
(2) When MAKER is in BF:
a. OM can appropriate the work without paying for the
labor or industry exerted
b. OM may demand for indemnity of the materials plus
damages
OM cannot appropriate the work is the value is more
than the value of material. (due to artistic or scientific
importance of work)
Art. 475. In the preceding articles, sentimental value shall be
duly appreciated. (n)
Q: What do you mean by sentimental value?
A: It refers to the value placed by the owner on the property
is more than the actual value by reason of some sentiments
like love, affection, respect, honor.
SPECIFICATION (ARTS. 474-475)
Q: What do you mean by specification?
A: It is the transformation of anothers material by the
application of labor. The material becomes a different kind.
Labor is the principal.
Q: What are the rules governing specification?
A:
28
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
Q: What are the requisites for this remedy to apply?
a. Owner of principal (worker) in good faith;
A:
i. Maker acquires the new thing
ii. He must indemnify the owner of material (1) Plaintiff has a title to a real property or interest:

XPN: Material is more valuable than the resulting thing
the owner of material has the option:
i. Acquire the work and indemnify the laborer except
where the value of work is greater due to artistic or
scientific reasons; or
ii. To demand indemnity for the material
a. Legal title owner is the registered owner of the
property.
b. Equitable title person has the beneficial ownership
to the property (beneficiary owner).
E.g. The right of an heir in succession.

b. Owner of principal (worker) in bad faith, owner of the Q: What is the effect of the absence of such title or interest?
material has the option:
A: It would warrant the dismissal of the case.
i. To acquire result without indemnity
ii. To demand indemnity for materials plus damages (2) Documents
(3) There is nothing wrong in the document on its face/ it is
c. Owner of material in bad faith valid; but in reality there may be evidence outside of the
4 corners of the document (extrinsic evidence) which
CHAPTER 3 may declare it null and void; and
QUIETING OF TITLE (n) (4) Must be valid on its face, need evidence to prove its
invalidity; prejudicial to plaintiffs title.
Q: Discuss the remedy of queting title to land.
REQUISITES
A: It is an equitable remedy; a proceeding in equity, the
purpose of which is the declaration of the invalidity of a claim 1. Legal or equitable title to or interest in the real property
on a title or the invalidity of an interest in property adverse to subject of the action;
that of to the plaintiff. It is the remedy for removal of cloud 2. Cloud on title to real property or any interest therein;
or doubt or uncertainty with respect to title to real property. and
3. Deed, claim, encumbrance or proceeding claimed to be
Q: Discuss the nature of the action. casting cloud on his title must be shown to be in fact
invalid or inoperative despite its prima facie appearance
A: It is quasi in rem filed against a person or persons but of validity or legal efficacy
judgment will apply to the property in dispute.
Q: Distinguish between legal title and equitable title.
Classes of Quieting of Title
A:
1. Remedial (action to quiet title) action may be brought
to remove a cloud or quiet title to real property or an LEGAL TITLE EQUITABLE TITLE
interest therein. Accordingly, the cloud or doubt is
Refers to full or naked Refers to beneficial interest
already there.
ownership registered; in the property and the legal
2. Preventive (action quia timet) prevent a future cloud
title of which belongs to
or doubt from being cast upon the title to real property
another
or an interest therein; there is an anticipation of a doubt
in the title/
Q: What is a cloud on Title?
Q: To what kind of property does this remedy apply?
A: It refers to semblance of title which appears in some legal
form but which is in fact unfounded.
A: It applies to real property, except vessels which are
treated as real properties.
Q: What are the sources of cloud in ones title?
G.R.: Quieting of title applies only to real property.
A:
XPN: Applies to personal property (ex. Vessel not intended to
a. Instrument-contract, deed of conveyance, mortgage,
remain at a fixed place) assignment, waiver;

29
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
b. Records, claim, encumbrance attachment, liens,
inscription, adverse claim, lis pendens on a title; and
c. Any proceedings like extrajudicial partition.
NOTE: Action to quiet title does not apply to boundary
disputes since in such cases both parties have their own titles.
The grounds or sources enumerated are exclusive.
There must appear valid or effective, extraneous evidence
needed to prove invalidity and which must be in truth and in
fact invalid, ineffective, voidable or unenforceable and which
may be prejudicial to the title of the owner or possessor.
In an action for quieting of title, plaintiff need not be in
possession of the property if plaintiff is in possession of the
property, action is imprescriptible since possession is a
continuing right as is the right to defend such possession;
owner of real property in possession has a continuing right to
invoke a court of equity to remove a cloud that is a
continuing menace to his title.
However, if he is not in possession, the prescriptive period is
as follows:
(1) ordinary prescriptive period of 10years;
(2) extraordinary prescriptive period of 30years
NOTE: Where the TCT is null and void, there can be no cloud
over the title.
Even if pleading filed is for Annulment of Title and/or
Reconveyance but plaintiff is in actual possession, claiming
lawful ownership and seeking to remove a cloud, it will be
considered as an action for quieting of title as the allegations,
not the caption of the pleading, determines the nature of the
action.
Q: Under what cases does this remedy not apply?
A:
1. To questions involving interpretation of documents;
2. To mere written or oral assertions of claims, EXCEPT:
a. If made in a legal proceeding
b. If it is being asserted that the instrument or
entry in plaintiffs favor is not what it purports
to be
3. To boundary disputes;
4. To deed by strangers to the title UNLESS purporting
to convey the property of the plaintiff;
5. To instruments invalid on their face; and
6. Where the validity of the instrument involves pure
question of law
Q: What is the test to determine if the action to quiet title is
proper?
___________________________
A: The test is the presence of any evidence which is outside of
the document itself.
An ejectment is a quieting process but not one for
determining ownership:
Plaintiff in possession: File an action to remove cloud, but
cannot file for ejectment because he is already in possession
Plaintiff not in possession: Remove cloud plus ejectment for
the one in possession; action to recover possession
incidental to action to quiet title
Art. 476. Whenever there is a cloud on title to real property
or any interest therein, by reason of any instrument, record,
claim, encumbrance or proceeding which is apparently valid
or effective but is in truth and in fact invalid, ineffective,
voidable, or unenforceable, and may be prejudicial to said
title, an action may be brought to remove such cloud or to
quiet the title.
An action may also be brought to prevent a cloud from
being cast upon title to real property or any interest therein.
Art. 477. The plaintiff must have legal or equitable title to,
or interest in the real property which is the subject matter
of the action. He need not be in possession of said property.
Art. 478. There may also be an action to quiet title or
remove a cloud therefrom when the contract, instrument or
other obligation has been extinguished or has terminated,
or has been barred by extinctive prescription.
Art. 479. The plaintiff must return to the defendant all
benefits he may have received from the latter, or reimburse
him for expenses that may have redounded to the plaintiff's
benefit.
NOTE: He who comes to court for equity must do equity.
Thus, there must be restoration of benefits. If the plaintiff
wins the case, he is obliged to restor to the defendants all
benefits he received from the later. Yet, if he lost, there is no
obligation to restore.
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.
Q: In case of conflict, which law shall prevail?
A: The Civil Code will prevail over the general law. only in the
absence of a provision in the CC will the general law be
applied.
Q: Under what cases will the general law apply?
A: Accoridng to Anglo-American Law:
30
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
1. Laches;
2. Estoppel;
3. Res judicata
4. prescription
Art. 481. The procedure for the quieting of title or the
removal of a cloud therefrom shall be governed by such
rules of court as the Supreme Court shall promulgated.
CHAPTER 4
RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING
Art. 482. If a building, wall, column, or any other
construction is in danger of falling, the owner shall be
obliged to demolish it or to execute the necessary work in
order to prevent it from falling.
If the proprietor does not comply with this obligation, the
administrative authorities may order the demolition of the
structure at the expense of the owner, or take measures to
insure public safety. (389a)
Art. 483. Whenever a large tree threatens to fall in such a
way as to cause damage to the land or tenement of another
or to travelers over a public or private road, the owner of
the tree shall be obliged to fell and remove it; and should he
not do so, it shall be done at his expense by order of the
administrative authorities. (390a)
Title III. - CO-OWNERSHIP
Art. 484. There is co-ownership whenever the ownership of
an undivided thing or right belongs to different persons.
In default of contracts, or of special provisions, co-
ownership shall be governed by the provisions of this Title.
(392)
Q: What is co-ownership?
A: It is the state where an undivided thing or right belongs to
2 or more persons.
It is the ownership of 2 or more persons over a thing or right
which had not been physically divided between or by and
among them.
It is the right of common dominion which two or more
persons have in a spiritual part of a thing, not materially or
physically divided.
Q: What are the requisites of co-ownership?
A:
___________________________
1. plurality of subjects (different owners)- at least 2 or
more persons;
2. unity of objects (material indivision)-thing has not
yet been divided materially and co-owners are tied
up to one another;
3. recognition of the ideal shares of the co-owners-
proportionate share of the owners.
Q: What are the rules to govern co-ownership?
A: Co-ownership may arise from different causes. For
orderliness the law specifies the rules to govern in the
following manner:
a. by contracts;
b. by special provision of law; and
c. by the provisions of the civil code.
Dual Nature of Co-ownership
1. Ownership over the ideal share full ownership over the
ideal share although portion is unidentified
2. Co-owners exercise joint ownership over the whole
observance of mutual respect between co-owners
The exercise of the right of legal redemption presupposes the
existence of co-ownership at the time the conveyance is
made by the co-owner and when it is demanded by the other
co-owner or co-owners; Property already partitioned
judicially or extrajudicially where portion belonging to co-
owners has been identified and localized, right of redemption
cannot be invoked.
GR: Co-owners cannot claim a definite portion.
XPN: Transferees of an undivided portion of the land allowed
a co-owner to occupy a definite portion and has not
disturbed the same for a period too long to be ignored
possessor is in a better condition or right (potior est conditio
possidentis)
Q: What are the different sources of co-ownership?
A:
1. Contract-voluntary agreement of the parties; e.g.
Art. 492(2) of the NCC with respect to the agreement
not to divide a thing for a period not exceeding 10
years and Art. 658 of NCC with respect to easement
of party wall;
2. Law- e.g. commixtion, confusion, Article 147 of the
Family Code;easement of party walls (Art. 668) or
absolute community of property between spouses
(Art. 88 or 90 of the Family Code);
3. Occupancy- e.g. when 2 persons catch a wild animal
or fish in the open sea or gather forest products; Art.
438(2) of the NCC with respect to hidden treasure;
31
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
4. Testamentary disposition or donation inter vivos- Prurpose: Common/ Purpose: Profit
e.g. where the testator or donor prohibits partition Collective enjoyment of the
of the property for a certain period of time (Article thing owned in common
194, paragraph 3); In general, agreement to No term limit set by law.
5. Succession as in the case of heirs of undivided exist for more than 10 years
property before partition (especially intestate, the is void with respect to the Reason: it will eventually
heirs will own property until it is divided). exces years be extinguished by death
6. Chance or fortuitous event-e.g. discovery of a hidden of one of the partners or by
treasure or by mixture. agreement of the partners
No mutual representation There is mutual
NOTE: Joint tenancy is not allowed in the Philippines, it representation by parties
impairs legitimes, because when a joint tenant dies, his share Not dissolved by the death, Dissolved by death or
does not go to his estate but to other surviving tenants; such incapacity of a co-owner incapacity of a partner
will be a betrayal of trust. A co-owner can dispose of A partner cannot be
his shgare without the substituted without the
Co-ownership is not limited to corporeal things consent of the other co- consent of the others
owners
It is explicit from the provision of Art. 484 that co-ownership Profits of a co-owner depend Profits may be stipulated
can exist in transmissible rights. on his proportinate share upon (e.g. profit-sharing
agreements)
Thus, it was held that when the lessee died, his leasehold Co-owner does not represent Partner usually represnets
rights descended upon his children who now own the rights the co-ownership the partnrships and binds the
in co-ownership. partnership

CO-OWNERSHIP v. JOINT TENANCY

Q: Distinguish between co-ownership and joint tenancy.
A:
Co-ownership
(Tenancy in common)
Each co-owner is owner of
his own ideal share.
Each co-owner may dispose
of his undivided share
WITHOUT the other co-
owners consent.
Upon the death of a co-
owner, his ideal share goes
to his heirs.
In case of a minor who is a
co-owner, this does not
benefit the others for the
purpose of prescription; it
continues to run against.
Them.
Q: Distinguish beteween co-ownership and partnership.
A:
Co-ownership
Can exist without a
contract
No legal/juridical personality
distinct from the co-owners
Created by contract, will, etc.
Q: Distinguish between co-ownership and conjugal
partnership of gains?
A:
Joint ownership
Co-ownership Conjugal Partnership of
(Joint tenancy)
Gains
Each joint owner owns the
Ordinary contractual Special partnership which
whole thing.
relationship arises from marriage and
Joint owner must obtain the agreed upon only before
consent of all the rest to marriage
dispose of his share.
More than 2 persons can Only 2 parties
establish co-ownership
Upon the death of a joint
Sex of parties is immaterial Sex is material; only a man
owner, his share goes to the
and woman
other joint owners by
Share is proportionate to Generally, a share of 50/50
accretion.
interest of parties unless a different percentage
The legal diability of one joint
has been agreed upon
owner benefits the others;
Civil Code Family Code
prescription will not run
against them.
Q: What are the means by which co-ownership is
extinguished?
A:
1. Consolidation or merger in one co-owner;
2. Acquisitive prescription in favor of a third person or a co-
Partnership (Ordinary)
owner who repudiates the co-ownership;
Requires the existence of 3. Loss or destruction of property co-owned;
contracts
4. Termination of the periodagreed upon by the co-owners;
With legal personality 5. Expropriation; and
6. Judicial or extra-judicial partition.
Created by contract only

32
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
NOTE:
1. Portions belonging to the co-ownership are equal unless
the contrary is proved
2. Co-owners have different shares, participation in the
benefits and charges arising from the co-ownership shall
be proportional to their respective INTERESTS.
Art. 485. The share of the co-owners, in the benefits as well
as in the charges, shall be proportional to their respective
interests. Any stipulation in a contract to the contrary shall
be void.
The portions belonging to the co-owners in the co-
ownership shall be presumed equal, unless the contrary is
proved. (393a)
Rights of each co-owner as to the thimg owned in common
1. To share in the benefits in proportion to his interest,
provided the charges are borne in the same proportion.
a. Contrary stipulation is void as the same is contrary to
the essence of co-ownership;
b. Presumption is what portions are equal unless
contrary is proved.
Q: State the presumption on the extent of a co-ownership.
A: The law presumes that the portions belonging to co-
owners are equal unless the contrary is proved.
If they have different shares then their participation in the
benefits and charges shall be propotional to their respective
interest.
Q: What is the effect of accretion on the property under co-
onwership?
A: If the property is increased through accretion, the co-
owners wuill share proportionately.
Q: State the execpttion to Art. 485.
A: GR: When contribnutions can be established. Their shares
shal be in proportion to their contributions.
EXC: Art. 147 of the FC: Property regimes of unions wothout
mariagesA paretner who didi not actually contribute
financially in the acquisition of a property shall be deemd to
have constributed jointly and shall receive 50/50 share, if she
took charge of the care and maintenance of the Family and
household.
NOTE: There is no co-ownership when rge house and lot
belong to different owners.
___________________________
2. To use the entire thing according to the purpose
intended (may be altered by agreement, express or
implied) provided that:
a. It is without injuryor prejudice to the interest of the co-
ownership; and
b. Without preventing the use of the other co-owners.
Q: Does each owner have the right to use the entire
property?
A: Yes.
Q: What are the limitations to this right?
A: The thing owned in common should be used only:
1. Accoridng to the purpose intended (may be altered
by agreement, express or implied)
2. It is without injury or prejudice to the interest of the
co-ownership; and
3. Without preventing the use of other co-owners.
Art. 486. Each co-owner may use the thing owned in
common, provided he does so in accordance with the
purpose for which it is intended and in such a way as not to
injure the interest of the co-ownership or prevent the other
co-owners from using it according to their rights. The
purpose of the co-ownership may be changed by
agreement, express or implied. (394a)
Q: What is the exception to Art. 486?
A: If one co-owner alone occupies the entire house without
opposition from the other co-owners, and there is no lease
agreement, the other co-owners cannot demand the
payment of rent
NOTE: Co-owners can either exercise an equal right to live in
the house or agree or lease it if they fail to exercise any of
these options, they must bear the consequences (it is unjust
to require a co-owner to pay rent after the co-owners by their
silence have allowed him to use the property). Accordingly, in
case the co-owners agreed to lease the property co-owner
cannot retain it for his use without paying the proper rent.
On the other hand, property retained by some of the co-
owners for the exploitation of an industry other co-owners
become co-participants in the accessions of the property and
shares in the net profit.
Q: State the rule to determine the purpose.
A:
1. Purpose stipulated in the agreement, express or
implied; in default,
2. The purpose for it was ordinarily accepted according
to its nature; and in default,
33
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
3. Presumption that the thing is intended for that use
for which it is ordinarily adapted according to its
nature.
Q. Is there such thing as perpetual co-ownership?
A. No. Any of the co-owners can demand partition at any
given time.
No co-owner ought to be compelled to stay in a co-ownership
indefinitely. He may insist the partition of the property
anytime. Such action to demand for partition does not
prescribe. (Patricio v. Dario III, GR. No. 170829, 2006)
A co-owner has a right to freely sell or dispose his undivided
share of interest but has no right to sell a divided or definite
part of a real estate owned in common. (Lopez v. Illustre, 5
Phil. 568)
Co-ownership is terminated if there is judicial or extrajudicial
partition of the property. (Cruz v. CA, 456 SCRA 165)
In a property co-owned by the compulsory heirs, any act
tantamount to partition (identifying their share and
constructed their respective houses) automatically
terminates the co-ownership. (Avila v. Sps. Arabat, 2006)
Art. 487. Any one of the co-owners may bring an action in
ejectment. (n)
Q: What are the circumstances covered by ejectment?
A:
1. Forcible entry;
2. Unlawful detainer;
3. Accion publiciana;
4. Accion reinvindicatoria;
5. Queting of title; and
6. Replevin.
3. Each co-owner may bring an action in ejectment.
When one co-owner brings an action, it is deemd instituted
for the benefit of all, but if case does not proseper, the other
co-owners are not bound by the judgment unless they were
also served with summons, even as unwilling plaintiffs.
Reason: law prohibits a co-owner from being prejudiced as to
his interest; adverse judgment cannot be binding upon a co-
owner who was not given a day in court.
These actions cannot be brought by one co-owner against
another co-owner since the latter has a right to possess; the
only effect of the action will be to obtain recognition of the
co-ownership.
___________________________
EJECTMENT
GR: Any co-owner may institute action (in Ejectment) -
includes suit of forcible entry (detentacion) or unlawful
detainer (desahuico) and all kinds of actions for the recovery
of possession (including accion publiciana and reinvidicatory
actions)
XPN: If action is for the benefit of the plaintiff alone, who
claims to be the sole owner and entitled to the possession
thereof, other co-owners (indispensable parties) must be
impleaded.
Action is available even against a co-owner who takes
exclusive possession and asserts exclusive ownership of the
property - the court cannot, in the action filed by a co-owner
against another co-owner proceed with the actual
partitioning of the co-owned property (extra-judicial partition
is still necessary to effect physical division).
Art. 488. Each co-owner shall have a right to compel the
other co-owners to contribute to the expenses of
preservation of the thing or right owned in common and to
the taxes. Any one of the latter may exempt himself from
this obligation by renouncing so much of his undivided
interest as may be equivalent to his share of the expenses
and taxes. No such waiver shall be made if it is prejudicial to
the co-ownership. (395a)
4. To compel other co=owners to contribute to expenses
for preservation of the thing or right in common and as
to taxes.
NOTE:This article refers only to necessary expenses. Useful
expenses and expenses for luxury are not covered.
Acts of preservation may be made at the will of one of the co-
owners, but he must, if practicable, first notify the others if
the necessity of such repairs.
GR: A co-owner has the option not to contribute by
renouncing his undivided interest equal to the amount of
contribution.
XPN: If the waiver or renunciation is prejudicial to the co-
ownership.
Renuniciation is in effect a dacion en pago (dation in
payment) since there is a change of the object of the
obligation (sum of money to interest in the co-ownership).
Thus, the consent of the other co-owners is necessary.
If the creditor has not yet been paid, the renunication
cannot be made without his consent for it is in effect a
novation by subsitution.
34
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Remedy of a co-owner who does not want to contribute
Art. 489. Repairs for preservation may be made at the will of
one of the co-owners, but he must, if practicable, first notify
his co-owners of the necessity for such repairs. Expenses to
improve or embellish the thing shall be decided upon by a
majority as determined in Article 492. (n)
Each co-owner has the right to demand contribution from
other co-owners for any and all expenses he incurred for the
purpose of preserving the thing or right owned in common.
Accordingly, the opposition of other co-owners for making
necessary repairs does not deprive the co-owner who made
the advances from demanding contributions from the other
co-owners as repairs for preservation may be made at the will
of only one of the co-owners.
Q: What if the co-owner failed to comply with the notice
requirement?
A: Failure does not deprive the co-owner of his right to
recover the proportionate shares of the other co-owners in
the expenses; however, the co-owner has the burden of
proving the necessity of the repairs and the reasonableness
of the expenses.
Q: Why are useful expenses not subject to reimbursement?
A: It is an act of alteration.
Q: What is the rule in case of opposition to repairs?
A: If there is opposition and he still proceeded, he is taking
the risk of repairing without reimbursing. Yet, if no repairs are
done due to the opposition and the property is ruined or
diminished value, oppositors could be liable for damages.
Renunciation
An option that belongs to a co-owner who may be compelled
to contribute to the expenses incurred for the purpose of
preserving the property owned in common (Special form of
payment dation in payment).
Q: May a co-owner be compelled to renounce?
A: A Co-owner cannot be compelled to renounce if co-
owner refuses to pay his share of expenses, the remedy is to
file an action for collection of sum of money.
Q: Is the consent of a co-owner necessary in case of
renunciation?
A: Consent of co-owner who made advances is not required
when a co-owner opts to renounce.
___________________________
Q: State the limitation on the exercise of the option of
renunciation.
A: Art488 prohibits the exercise of the option of renunciation
if it is prejudicial to the interest of the co-ownership.
Taxes
GR: Not a necessary expense
XPN: Necessary expense under Art488, NCC.
Expenses to improve or relinquish the thing shall be decided
upon by the majority co-owner representing the controlling
interest in the object of the co-ownership.
A co-owner who does not want to contribute may EXEMPT
himself by RENOUNCING SO MUCH of his undivided interest
as may be the equivalent to his share of the expenses for
preservation and taxes.
Q: What should be the form of necessary?
A: It must be express renunciation.
Improvements
Q: What are improvements?
A: They are valuable additions or betterment to enhance the
value or the convenience of the property. They are designed
for the comfort of the occupants/
To improve means to add something new and good to the
thing which enhances its value.
Art. 490. Whenever the different stories of a house belong
to different owners, if the titles of ownership do not specify
the terms under which they should contribute to the
necessary expenses and there exists no agreement on the
subject, the following rules shall be observed:
(1) The main and party walls, the roof and the other things
used in common, shall be preserved at the expense of all the
owners in proportion to the value of the story belonging to
each;
(2) Each owner shall bear the cost of maintaining the floor of
his story; the floor of the entrance, front door, common
yard and sanitary works common to all, shall be maintained
at the expense of all the owners pro rata;
(3) The stairs from the entrance to the first story shall be
maintained at the expense of all the owners pro rata, with
the exception of the owner of the ground floor; the stairs
from the first to the second story shall be preserved at the
expense of all, except the owner of the ground floor and the
owner of the first story; and so on successively. (396)
Art. 491. None of the co-owners shall, without the consent
of the others, make alterations in the thing owned in
35
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
common, even though benefits for all would result
therefrom. However, if the withholding of the consent by
one or more of the co-owners is clearly prejudicial to the
common interest, the courts may afford adequate relief.
(397a)
5. To oppose to any act of alteration.
Art490 applies to a house consisting of several stories and
different stories belong to different owners. It is no applicable
to condominium project which is governed by RA 4276.
Rules governing necessary expenses
1. Manner of contribution specified in the title of
ownership;
2. Agreement of parties; and
3. In the absence of agreement Art490:
a. Main and party walls, roof and other things used in
common shall be preserved at the expense of all the
owners in proportion to the value of the story
belonging to each;
b. Floor of entrance, front door, common yard and
sanitary works common to all, shall be maintained at
the expense of all owners pro rata;
c. Each owner shall bear the cost of maintaining the
floor of his story; and
d. Stairs from the entrance to the first story all
owners pro rata (except owner of ground floor;
reason: no need for him to use the stairs)
Stairs from the first to second story expense of all
except the owner of ground floor and first floor.
Condominium Act
Q: What is a condominium?
A: It is an interest in real property consisting of a separate
interest in a unit in a residential, industrial or commercial
building and an undivided interest in common directly or
indirectly, in the land on which it is located and in other
common areas of the building.
Q: What are common areas?
A: They refer to the entire project excepting all units
separately granted or held or reserved.
Q: What is a unit?
A: It is part of condominium project intended for any type of
independent use or ownership, including one or more rooms
or spaces located in one or more floors in a building or
buildings and such accessories as may be appended thereto.
___________________________
Nature of ownership in condominium projects
1. Condominium unit is owned separately and
individually by the unit owner
2. Land and common areas co-owned
Reason: Unit owner will become part of the
association (pays association dues)
a. Land and common areas are held by owners of
the separate units as co-owners co-owners
with respect to the undivided interest in the
land and common areas
b. Land and other common areas are held by the
condominium corporation owners of the
individual units are automatically considered
members or shareholders of the corporation
(reason: undivided interest in the common areas
or the shareholding in the common areas is
inseparable from the unit to which it is only an
appurtenant)
Rules on expenses on common areas
Owner of project is required by law, prior to conveyance of
any condominium to register a declaration of restrictions
relating to such project (restrictions is considered a lien upon
each condominium in the project and shall inure to and bind
all condominium owners in the project).
Restrictions may be:
1. For maintenance of insurance policies insuring
condominium owners against loss by fire, casualty,
liability, workmens compensation and other
insurable risks and for bonding of the members of
any management body;
2. Provisions for maintenance, utility, gardening and
other services benefitting the common areas, for the
employment of personnel necessary for the
operation of the building and legal, accounting and
other professional and technical services;
3. For purchase of materials, supplies and the like
needed by the common areas;
4. For payment of taxes and special assessments which
would be a lien upon the entire project or common
areas and for the discharge of any encumbrance
levied against the entire project or the common
areas; and
5. For reconstruction of any portion or portions of any
damage to or destruction of the project.
Notice of assessment of condominium is to be registered with
the Registry of Deeds of the city or province where such
condominium is located.
Lien is superior to all other liens registered subsequent to the
registration of notice of assessment EXCEPT real property tax
lien.
36
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
previous to the act or after owners who represents the
its commission, of all co- controlling interest in the
owner required even though object of the co-ownership
Art. 492. For the administration and better enjoyment of the alteration will benefit all co- required;
thing owned in common, the resolutions of the majority of
owner;
the co-owners shall be binding.
Acts made without the
There shall be no majority unless the resolution is approved Reason for majority consent:
by the co-owners who represent the controlling interest in consent of all co-owners are
illegal and invalid; No alienation
the object of the co-ownership.

Should there be no majority, or should the resolution of the Remedy:

majority be seriously prejudicial to those interested in the
property owned in common, the court, at the instance of an 1. Undo what has been
interested party, shall order such measures as it may deem done at the expense of
proper, including the appointment of an administrator. the erring co-owner
(Art1168, NCC);
Whenever a part of the thing belongs exclusively to one of 2. Erring co-owner is liable
the co-owners, and the remainder is owned in common, the for any loss or damage
preceding provision shall apply only to the part owned in which the co-ownership
common. (398) may have suffered
More permanent result Transitory in character.
Acts requiring Unanimous Consent refers to the substance or
form of the thing.
Q: What are the acts requiring unanimous consent?
Relates to the substance or Do not affect the substance
A: essence of the thing itself; or form of the thing;
1. Encumbrance as co-owners will be prejudiced; e.g.
Must be exercised by the co- Can be exercised by the co-
mortgage and foreclosure;
owners themselves. owners through others like
2. Disposition as no one may dispose a thing which he does
not own; and an administrator.
3. Acts of alteration.

Q: Distinguish between acts of alteration and acts of Q: What is the test whether the nature of the thing requires
administration? modifications for enjoyment?

A: A: If there is no need for modification, it is an act of

alteration; where the nature of the thing requires changes in
Acts of Alteration Acts of Administration its exploitation, it is an act of administration

Act by virtue of which a co-
owner, in opposition to the
express agreement, if there is
any, or in default thereof, to
the tacit agreement of all the
co-owners and violating their
will, changes the thing from
that state in which the others
believe it should remain or
withdraws it from the use to
which they wish it to be
intended;
Consent, express or tacit,
Improvement or
embellishment of the thing
owned in common for the
purpose of better enjoyment
(IME):
- Improvement
- Management
- Enjoyment
It refers to the enjoyment,
exploitation, and alteration
of the thing which do not
affect its substance, form, or
purpose.;
Majority consent of the co-
Acts of Majority Prejudicial to the Co-ownership
1. Resolution calls for substantial change or alteration of
the common property or of the use to which it has been
dedicated by agreement or by its nature;
2. Resolution goes beyond the limit of mere administration;
3. Majority authorizes lease, loans, or other contracts
without security, exposing the things to serious danger to
the prejudice of the other co-owners; and
4. Majority refuses to dismiss an administrator who is guilty
of fraud or negligence in his management or he does not
have the respectability, aptitude and solvency required
of persons holding such position.
Alteration is not limited to physical or material changes but
includes any act of ownership.

37
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Q: What is the reason foe requiring the consent of other co-
owners?
A: Alteration is an act of ownership and not mere act of
administration.
Q: What is the liability of a co-owner for alteration made
without the majority consent?
A: The co-owner who makes the alteration without the
express or implied consent of all co-owners shall:
1. Lose what he has spent;
2. Be obliged to demolish the improvements done;
and
3. Pay for losses and damages the community
property or other co-owners may have suffered.
Q: What if there is disagreement or conflict on matters of
administration and better enjoyment?
A: The resolution of the co-owners representing the
controlling interest shall be binding upon all co-owners.
Q: What if there is no majority?
A: If no majority, the court shall order measures as it may
deem proper to solve the controversy.
Illustration of acts of administration
1. Leasing a parcel of land for not more than 1 year and
need not register (if registred it is an act of ownership);
2. Borrowing money for preservation of property;
3. Paying taxes to government;
4. paying workers; and
5. Filing a representative suit for the co-owners.
Art. 493. Each co-owner shall have the full ownership of his
part and of the fruits and benefits pertaining thereto, and
he may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the alienation
or the mortgage, with respect to the co-owners, shall be
limited to the portion which may be alloted to him in the
division upon the termination of the co-ownership. (399)
6. To protect against acts of majority which are prejudicial
to the minority
A co-owner has absolute ownership over his undivided share
in the common property. Thus, he can alienate his share to
third persons even without the consent of other co-owners;
may validly lease his undivided interest to a third party
independently of other co-owners
___________________________
Ideal share of co-owner in common not in whole property
A co-owner has full ownership of his share, fruits & benefits;
thus, he May alienate, assign, or mortgage, substitute
another person in enjoyment of his share, except when
personal rights are involved (undivided interest).
Mortgage of a common property
A co- owner does not lose his part ownership of a co-owned
property where his share is mortgaged by another co-owner
without formers knowledge and consent:
1. Share can be attached even if it has not been
concretely determined;
2. Not allowed to sell a determinate part because his
right is only a quota or an ideal portion within any
physical adjudication; and
3. A co-owner of a thing may exercise the RIGHT OF
REDEMPTION in case the shares of all the other co-
rd
owners or any of them are sold to a 3 person; if
price of alienation is grossly excessive, the
redemption shall pay only a reasonable one
Q: What is the effect of alienation or mortgage of undivided
share?
A: The transferee steps into the shoes of the transferor as co-
owner.
GR: Alienation of entire co-owned property sale will affect
the portion owned by the co-owner only (reason: nemo dat
quod non habet no one can give what he does not have).
Accordingly, the remedy is an action for the partition of the
property under Rule 69 of the Revised Rules of Court.
XPNs:
1. Buyer in good faith a person dealing registered land is
not required to go behind the register to determine the
condition of the property; and
2. Art147, FC common law spouses are prohibited from
encumbering or disposing of their share in the co-owned
property without the consent of the other prior to the
termination of cohabitation.
Q: What is the effect of sale of conjugal property without
the consent of the other spouse?
A: It shall be void. The Conjugal Partnership of Gains under
the FC is governed suppletorily only by the rules on
partnership.
Q: What is the effect of sale of community property without
the consent of the other spouse?
A: It is void. The absolute community is a form of co-
ownership but Art. 493 does not apply; prior to the
38
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
liquidation of the absolute community, the interest of each
spouse is inchoate, a mere expectancy which constitute
neither legal nor equitable estate and does not ripen into title
until it appears that there are assets in the community as a
result of the liquidation and settlement.
Legal Redemption
Legal Redemption may be exercised by two or more co-
owners in proportion to the share they respectively have. The
reason for allowing redemption is to minimize co-ownership
by reducing the number of participants until the community
is done away with.
Q: What are the requisites for legal redemption?
A:
1. There is co-ownership;
2. One of the co-owners sold his right to a stranger (not
a co-owner);
3. Sale is before the partition of the co-owned
property;
4. Right of redemption must be exercised within
30days from knowledge; and
5. Vendee must be reimbursed for the price of the sale
Right is granted not only to the co-owner but also to all those
who subsequently acquires their respective shares while the
community subsists. A co-owner has the right of redemption
not a right of pre-emption to purchase the shares of his co-
owners.
NOTE: Written notice is not required when there is actual
notice
PARTITION
Art. 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share
is concerned.
Nevertheless, an agreement to keep the thing undivided for
a certain period of time, not exceeding ten years, shall be
valid. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period
which shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by
law.
No prescription shall run in favor of a co-owner or co-heir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership. (400a)
___________________________
7. To ask partition
No co-owner shall be obliged to remain in the co-ownership
as the law discourages long and perpetual co-ownership,
which causes conflicts in management and possession among
co-owners.
GR: A co-owner has the right to ask for partition at anytime.
XPN:
1. When there is a stipulation against it (not more than 10
years);
2. When the condition of division is imposes by the
transferor (donor/testator) (but not more than 20 years);
3. When legal nature of the community prevents partition
(party wall);
4. When the issue of ownership had not been definitely
resolved and it is premature to effect partition;
5. When the partition is generally prohibited by law; and
6. When the partition would render the thing unserviceable
or the thing is essentially indivisible.
Action to request partition will not prescribe as long as the
co-ownership exists.
GR: No prescription shall run in favor of a co-owner or co-heir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership. Accoridngly, the
posession of co-owner is not adverse to the other co-owners.
XPN: If the co-owner repudiates co-ownership. In such case,
prescription begins to run from the time of repudiation.
Q: Cite examples of acts of repudiation.
A:
1. Filing of an action to quiet title or recovery of
ownership;
2. When the defendants, alleged co-owners, executed
a deed of partition and on the strength therof
obtained the cancellation of title in the name of their
predecesor and the issuance of new titles.
Q: What is partition?
A: It is the segregation or division of a property in common to
those to whom it belongs in parts.
It is the right to demand at anytime the partition or
segregation of his share in the thing owned in common.
GR: A co-owner cannot acquire exclusive ownership over a
common property thru prescription as a co-owner stands as a
trustee for other co-owners.
39
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Except: A co-owner can acquire by prescription if he had
repudiated the co-ownership and lay complete ownership
over the property adverse to the other co-owner/s with full
knowledge of the latter.
Co-owners can stipulate that they will not divide a common
property but will just keep on dividing the income or fruits =
renunciation of their right to seek partition;
Temporary renunciation is allowed, not more than 10 years;
extension can be made provided it does not exceed 10 years;
and
If indefinite period= invalid.
Q: What are the principal issues in an action for partition?
A:
1. Whether plaintiff is a co-owner of the property
sought to be partitioned
2. How property is to be divided between the plaintiff
and defendant
Legal Effects of Partition
1. Co-ownership is terminated; Co-owners are the absolute
and exclusive owners of the share allotted to him
deemed in exclusive possession of the portion allotted
even during the entire period that the co-ownership
lasted
2. Cannot prejudice the rights of third persons who shall
retain the rights of mortgage, servitude, or any other real
rights belonging to them before the division was made
3. Personal rights pertaining to third persons against
ownership shall also remain in force
4. Mutual accounting shall be rendered by the co-owners
with regard to:
a. Benefits and expenses and each co-owner shall pay for
damages cause by reason of his negligence or fraud
b. Reimburse each other as to the income and fruits
received and for useful and necessary expenses made
c. Co-owner liable for the defects of title and quality of the
portion assigned to each of the co-owners
Q: What are the grounds of extinguishing co-ownership?
A:
1. Partition;
2. Prescription as means of acquiring ownership in
rd
favor of 3 person;
3. Merger/ consolidation of ownership to 1 person as
when a co-owner acquires another co-owners share
through purchase or legal redemption;
4. Destruction of property or total loss of the thing
owned in common-co-ownership is a state of fact
which exists so long as the property remains
physically undivided;
___________________________
5. Expropriation by competent authority.
Q: Is redemption a mode of terminating co-ownership?
A: Redemption is not a mode of terminating co-ownership. A
co-heir or co-owner who redeems the whole property
benefits the co-owners does not become the owner therof.
He is considered as a trustee of the property and will be
entitled to collect reimbursement; redemption is a necessary
expense under Art488).
Heirs (co-owners) allowing the one year redemption period to
expire without redeeming the property and even permitted
the consolidation of ownership and the issuance of new title
in favor of the bank, through their omission, the heirs allowed
the extinction of their co-ownership.
NOTE: Construction of a house on a co-owned property =
implied partition by an act that would identify the share of
ownership
Q: Will prescription lie?
A:
GR: prescription does not lie (reason: co-ownership is a form
of trust and every co-owner is a trustee for the others
relationship of co-owners is fiduciary in character and
attribute; no prescription so long as co-owner expressly or
impliedly recognized co-ownership).
XPN: When co-ownership repudiated.
Q: What are the requisites for repudiation?
A:
1. Co-owner has performed unequivocal acts of repudiation
amounting to an ouster of the other co-owners (ex. [1]
Co-owner executed a deed of partition and subsequently
obtained the cancellation of the title and issuance of a
new one in his name [2] action to quiet title to property
[3] action for recovery of ownership)
2. Positive acts of repudiation have been made known to
the other co-owners prescription runs only against co-
owners when such unequivocal notice has been given
3. Evidence is clear and convincing
Art. 495. Notwithstanding the provisions of the preceding
article, the co-owners cannot demand a physical division of
the thing owned in common, when to do so would render it
unserviceable for the use for which it is intended. But the
co-ownership may be terminated in accordance with Article
498. (401a)
Q: When is physical division not allowed?
A: Co-owners cannot demand a physical division of the thing
owned in common:
40
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
a. when to do so would render it unserviceable for the
use it is intended
b. If partition will only impair its use, co-owner can
refuse?
NOTE: They can continue to pursue partition because it
pertains only to the use because it not render it
unserviceable.
Impairment is a necessary consequence of partition and is not
a ground to refuse partition
Art. 496. Partition may be made by agreement between the
parties or by judicial proceedings. Partition shall be
governed by the Rules of Court insofar as they are
consistent with this Code. (402)
Partition may be in writing, verbal/oral, because there is
really no conveyance of property; so frauds does not apply.
Art. 497. The creditors or assignees of the co-owners may
take part in the division of the thing owned in common and
object to its being effected without their concurrence. But
they cannot impugn any partition already executed, unless
there has been fraud, or in case it was made
notwithstanding a formal opposition presented to prevent
it, without prejudice to the right of the debtor or assignor to
maintain its validity. (403)
1. creditors are allowed because they take part in the
partition because they own part of the interests of the
co-owner who made the assignment or alienation
2. if assignor has fully assigned all his interest in the
community property, he has no more right to intervene
in the petition; the assignee will have the right because
he is the new co-owner
Q: Who are CREDITORS?
A:
(1) Ordinary creditor- loan is not secured
(2) Preferred creditor in case of liquidation or sale of
property, they will be paid first
Q: What are the requisites to enable the creditors or
assignees assail partition already executed?
A: Creditors or assignees cannot assail partition already
executed unless:
(1) there has been fraud perpetrated
(2) it was made despite formal opposition thereto
NOTE: The law does not require co-owners to notify
creditors/ assignees about the partition, prudence dictate
that they be notified.
___________________________
Partition shall not prejudice third persons who shall retain the
rights of:
a. mortgage;
b. servitude; and
c. any other real rights belonging to them before
partition.
8. To exercise legal redemption
The co-owner may redeem the shares of all or any other co-
rd
owner if sold to 3 persons.
If the price of the alienation is grossly
Art. 498. Whenever the thing is essentially indivisible and
the co-owners cannot agree that it be allotted to one of
them who shall indemnify the others, it shall be sold and its
proceeds distributed. (404)
Q: It is said that community property is essentially
indivisible, therefore, what are the remedies of co-owners?
A:
1. Agree on the allotment of entire property to one of them
who in turn will indemnify the others for their respective
interests
2. Property shall be sold and proceeds distributed to co-
owners
NOTE: What is prohibited in art 495 and 498 is only PHYSICAL
DIVISION, the PROCEEDS can BE DIVIDED.
Art. 499. The partition of a thing owned in common shall not
prejudice third persons, who shall retain the rights of
mortgage, servitude or any other real rights belonging to
them before the division was made. Personal rights
pertaining to third persons against the co-ownership shall
also remain in force, notwithstanding the partition. (405)
rd
1. 3 person who have rights attached to the
community property before its partition shall retain
such rights even after the partition of the property
2. Protection applies to real and personal rights
Art. 500. Upon partition, there shall be a mutual accounting
for benefits received and reimbursements for expenses
made. Likewise, each co-owner shall pay for damages
caused by reason of his negligence or fraud. (n)
Art. 501. Every co-owner shall, after partition, be liable for
defects of title and quality of the portion assigned to each of
the other co-owners. (n)
After partition, if there are still benefits and expenses
incurred, which had not been settled in the partition
agreement; co-owners shall remain liable therefore and shall
have mutual obligations:
41
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
1. account for benefits received
2. reimburse expenses incurred by others which are legally
reimbursable
3. indemnify other co-owners for the damages suffered by
them due to the negligence or fraud of the indemnifying
co-owner
4. to warrant defects of title and quality of the portions
assigned to each of them
Title IV. - SOME SPECIAL PROPERTIES
CHAPTER I
WATERS
SECTION 1. - Ownership of Waters
Art. 502. The following are of public dominion:
(1) Rivers and their natural beds;
(2) Continuous or intermittent waters of springs and brooks
running in their natural beds and the beds themselves;
(3) Waters rising continuously or intermittently on lands of
public dominion;
(4) Lakes and lagoons formed by Nature on public lands, and
their beds;
(5) Rain waters running through ravines or sand beds, which
are also of public dominion;
(6) Subterranean waters on public lands;
(7) Waters found within the zone of operation of public
works, even if constructed by a contractor;
(8) Waters rising continuously or intermittently on lands
belonging to private persons, to the State, to a province, or
to a city or a municipality from the moment they leave such
lands;
(9) The waste waters of fountains, sewers and public
establishments. (407)
Art. 503. The following are of private ownership:
(1) Continuous or intermittent waters rising on lands of
private ownership, while running through the same;
(2) Lakes and lagoons, and their beds, formed by Nature on
such lands;
(3) Subterranean waters found on the same;
(4) Rain waters falling on said lands, as long as they remain
within the boundaries;
(5) The beds of flowing waters, continuous or intermittent,
formed by rain water, and those of brooks, crossing lands
which are not of public dominion.
In every drain or aqueduct, the water, bed, banks and
floodgates shall be considered as an integral part of the land
of building for which the waters are intended. The owners
of lands, through which or along the boundaries of which
the aqueduct passes, cannot claim ownership over it, or any
___________________________
right to the use of its bed or banks, unless the claim is based
on titles of ownership specifying the right or ownership
claimed. (408)
SECTION 2. - The Use of Public Waters
Art. 504. The use of public waters is acquired:
(1) By administrative concession;
(2) By prescription for ten years.
The extent of the rights and obligations of the use shall be
that established, in the first case, by the terms of the
concession, and, in the second case, by the manner and
form in which the waters have been used. (409a)
NOTE: Art503 & 504 Repealed by PD1067
Art. 505. Every concession for the use of waters is
understood to be without prejudice to third persons. (410)
Art. 506. The right to make use of public waters is
extinguished by the lapse of the concession and by non-user
for five years. (411a)
SECTION 3. - The Use of Waters of Private Ownership
Art. 507. The owner of a piece of land on which a spring or
brook rises, be it continuous or intermittent, may use its
waters while they run through the same, but after the
waters leave the land they shall become public, and their
use shall be governed by the Special Law of Waters of
August 3, 1866, and by the Irrigation Law. (412a)
Art. 508. The private ownership of the beds of rain waters
does not give a right to make works or constructions which
may change their course to the damage of third persons, or
whose destruction, by the force of floods, may cause such
damage. (413)
Art. 509. No one may enter private property to search
waters or make use of them without permission from the
owners, except as provided by the Mining Law. (414a)
Art. 510. The ownership which the proprietor of a piece of
land has over the waters rising thereon does not prejudice
the rights which the owners of lower estates may have
legally acquired to the use thereof. (415)
Art. 511. Every owner of a piece of land has the right to
construct within his property, reservoirs for rain waters,
provided he causes no damage to the public or to third
persons. (416)
SECTION 4. - Subterranean Waters
Art. 512. Only the owner of a piece of land, or another
person with his permission, may make explorations thereon
42
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
for subterranean waters, except as provided by the Mining
Law.
Explorations for subterranean waters on lands of public
dominion may be made only with the permission of the
administrative authorities. (417a)
Art. 513. Waters artificially brought forth in accordance with
the Special Law of Waters of August 3, 1866, belong to the
person who brought them up. (418)
Art. 514. When the owner of waters artificially brought to
the surface abandons them to their natural course, they
shall become of public dominion. (419)
SECTION 5. - General Provisions
Art. 515. The owner of a piece of land on which there are
defensive works to check waters, or on which, due to a
change of their course, it may be necessary to reconstruct
such works, shall be obliged, at his election, either to make
the necessary repairs or construction himself, or to permit
them to be done, without damage to him, by the owners of
the lands which suffer or are clearly exposed to suffer
injury. (420)
Art. 516. The provisions of the preceding article are
applicable to the case in which it may be necessary to clear
a piece of land of matter, whose accumulation or fall may
obstruct the course of the waters, to the damage or peril of
third persons. (421)
Art. 517. All the owners who participate in the benefits
arising from the works referred to in the two preceding
articles, shall be obliged to contribute to the expenses of
construction in proportion to their respective interests.
Those who by their fault may have caused the damage shall
be liable for the expenses. (422)
Art. 518. All matters not expressly determined by the
provisions of this Chapter shall be governed by the special
Law of Waters of August 3, 1866, and by the Irrigation Law.
(425a)
Q: What are the governing Laws on Waters?
A:
1. PD1067 Water Code of the Philippines [1976]
2. New Civil Code provisions not repealed by PD1067
3. Spanish Law on Waters of 1866 provisions not repealed
by PD1067
Q: Who owns water?
A: The State.
Q: What is the constitutional basis of this?
___________________________
A: Sec2, Art. XII of the 1987 Constitution provides: All lands
of the public domain, waters, xxxx are owned by the State.
Q: What are the underlying principles under the Water Code
of the Philippines?
All waters belong to the State. Correspondingly, the same
cannot be the subject to acquisitive prescription.
Nonetheless, the State may allow the use or development of
waters by administrative concession.
The utilization, exploitation, development, conservation and
protection of water resources shall be subject to the control
and regulation of the government through the National
Water Resources Council, hereinafter referred to as the
Council.
Preference in the use and development of waters shall
consider current usages and be responsive to the changing
needs of the country.
Q: What do you mean by waters?
A: It refers to water above and under the grounds, in the
atmosphere, and of the sea within the territorial jurisdiction
of the Philippines.
Pertinent Provisions
DECLARATION OF OBJECTIVES AND PRINCIPLES
The objectives of this Code are:
To establish the basic framework relating to the
appropriation, control and conservation of water resources to
achieve the optimum development and rational utilization of
these resources;
To define the extent of the rights and obligations of water
users and owners including the protection and regulation of
such rights;
To adopt a basic law governing the ownership, appropriation,
utilization, exploitation, development, conservation and
protection of water resources and rights to land related
thereto; and
To identify the administrative agencies which will enforce the
Water Code
OWNERSHIP OF WATERS
The following belongs to the State:
1. Rivers and their natural beds;
2. Continuous or intermittent waters of springs and brooks
running in their natural beds and the beds themselves;
3. Natural lakes and lagoons;
43
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
4. All other categories of surface waters such as water XPN: No person, including government instrumentalities or
flowing over lands, water from rainfall whether natural, government-owned or controlled corporations, shall
or artificial, and water from agriculture runoff, seepage appropriate water without a water right, which shall be
and drainage; evidenced by a document known as a water permit.
5. Atmospheric water;
6. Subterranean or ground waters; and, Water right is the privilege granted by the government to
7. Seawater. appropriate and use water.

Note: The owner of the land where the water is found may
use the same for domestic purposes without securing a
permit, provided that such use shall be registered, when
required by the Council. Any person who captures or collects
water by means of cisterns, tanks, or pools shall have
exclusive control over such water and the right to dispose of
the same.
Water legally appropriated shall be subject to the control of
the appropriator from the moment it reaches the
appropriator's canal or aqueduct leading to the place where
the water will be used or stored and, thereafter, so long as it
is being beneficially used for the purposes for which it was
appropriated.
APPROPRIATION OF WATERS
Q: What is appropriation?
A: It is the acquisition of rights over the use of waters or the
taking or diverting of waters from a natural source in the
manner and for any purpose allowed by law.
Subject to the provisions of this Code concerning the control,
protection, conservation, and regulation of the appropriation
and use of waters, any person may appropriate or use natural
bodies of water without securing a water permit for any of
the following:
(a) Appropriation of water by means of handcarried
receptacles; and
(b) Bathing or washing, watering or dipping of domestic or
farm animals, and navigation of watercrafts or transportation
of logs and other objects by flotation.
Q: Who may apply for water permits?
A: Only citizens of the Philippines, of legal age, as well as
juridical persons, who are duly qualified by law to exploit and
develop water resources, may apply for water permits.
Pertinent provisions of the Water Code
Article 16. Any person who desires to obtain a water permit shall file an
application with the Council who shall make known said application to the
public for any protests.

Q: What are the purposes by which water may be Article 17. The right to the use of water is deemed acquired as of the date
appropriated? of filing of the application for a water permit in case of approved permits,
or as of the date of actual use in a case where no permit is required.
A: Article 19. Water rights may be leaded or transferred in whole or in part to
1. Domestic another person with prior approval of the Council, after due notice and
2. Municipal hearing.
3. Irrigation
4. Power generation Q: What is the rule as to the limitation for the use and
5. Fisheries appropriation of water?
6. Livestock raising
7. Industrial A: The measure and limit of appropriation of water shall be
8. Recreational, and beneficial use.
9. Other purposes
Q: What is beneficial use?
GR: The State, for reasons of public policy, may declare
waters not previously appropriated, in whole or in part, A: Beneficial use of water is the utilization of water in the
exempt from appropriation for any or all purposes and, right amount during the period that the water is needed for
thereupon, such waters may not be appropriated for those producing the benefits for which the water is appropriated.
purposes.
Q: Who will prescribe the standards for beneficial use?
Waters appropriated for a particular purpose may be applied
for another purpose only upon prior approval of the Council A:
and on condition that the new use does not unduly prejudice
the rights of other permittees, or require an increase in the GR: Standards of beneficial use shall be prescribed by the
volume of water. council for the appropriator of water for different purposes
and conditions, and the use of waters which are appropriated
shall be measured and controlled in accordance therewith.

44
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
XPN: domestic use, every appropriator of water shall
maintain water control and measuring devices, and keep
records of water withdrawal. When required by the Council,
all appropriators of water shall furnish information on water
use.
Article 22. Between two or more appropriators of water from the same
sources of supply, priority in time of appropriation shall give the better
right, except that in times of emergency the use of water for domestic and
municipal purposes shall have a better right over all other uses; Provided,
the where water shortage is recurrent and the appropriator for municipal
use has a lower priority in time of appropriation, then it shall be his duty to
find an alternative source of supply in accordance with conditions
prescribed by the Council.
Q: How is water right exercised?
A: A water right shall be exercised in such a manner that the
rights of third persons or of other appropriators are not
prejudiced thereby.
Article 25. A holder of water permit may demand the establishment of
easements necessary for the construction and maintenance of the works
and facilities needed for the beneficial use of the waters to be appropriated
subject to the requirements of just compensation and to the following
conditions:
(a) That he is the owner, lessee, mortgagee or one having real right over
the land upon which he proposes to use water; and
(b) That the proposed easement is the most convenient and the least
onerous to the servient estate.
Easements relating to the appropriation and use of waters may be modified
by agreement of the contracting parties provided the same is not contrary
to law or prejudicial to third persons.
Article 28. Water permits shall continue to be valid as long as water is
beneficially used; however, it maybe suspended on the grounds of non-
compliance with approved plans and specifications or schedules of water
distribution; use of water for a purpose other than that for which it was
granted; non-payment of water charges; wastage; failure to keep records of
water diversion, when required; and violation of any term or condition of
any permit or rules and regulations promulgated by the Council.
Temporary permits may be issued for the appropriation and use of water
for short periods under special circumstances.
CHAPTER IV
UTILIZATION OF WATERS
Article 32. The utilization of subterranean or ground water shall be
coordinated with that of surface waters such as rivers, streams, springs and
lakes, so that a superior right in one not adversely affected by an inferior
right in the other.
For this purpose the Council shall promulgate rules and regulations
and declare the existence of control areas for the coordinated
development, protection, and utilization of subterranean or ground water
and surface waters.
Control area is an area of land where subterranean or ground water
and surface water are so interrelated that withdrawal and use in one
similarly affects the other. The boundary of a control area may be altered
from time to time, as circumstances warrant.
Article 33. Water contained in open canals, aqueducts or reservoirs of
private persons may be used by any person for domestic purpose or for
watering plants as long as the water is withdrawn by manual methods
without checking the stream or damaging the canal, aqueduct or reservoir;
___________________________
Provided, That this right may be restricted by the owner should it result in
loss or injury to him.
Article 34. A water permittee or appropriator may use any watercourse to
convey water to another point in the watercourse for the purpose stated in
a permit and such water may be diverted or recaptured at that point by
said permittee in the same amount less allowance for normal losses in
transit.
Article 35. Works for the storage, diversion, distribution and utilization of
water resources shall contain adequate provision for the prevention and
control of diseases that may be induced or spread by such works when
required by the Council.
Q: State the rule as to the reuse of water waste.
A: When the reuse of waste water is feasible, it shall be
limited as much as possible, to such uses other than direct
human consumption. No person or agency shall distribute
such water for public consumption until it is demonstrated
that such consumption will not adversely affect the health
and safety of the public.
Article 37. In the construction and operation of hydraulic works, due
consideration shall be given to the preservation of scenic places and
historical relics and, in addition to the provisions of existing laws, no works
that would required the destruction or removal of such places or relics shall
be undertaken without showing that the distribution or removal is
necessary and unaviodable.
Q: Who has the authority to construct dams, bridges or
other structures across of which may interfere with the flow
of navigable or floatable waterways?
A:
GR: Authority for the construction of dams, bridges and other
structures across of which may interfere with the flow of
navigable or floatable waterways shall first be secured from
the Department of Public Works, Transportation and
Communications.
XPN: in cases of emergency to save life or property, the
construction or repair of the following works shall be
undertaken only after the plans and specifications therefor,
as may be required by the Council, are approved by the
proper government agency; dams for the diversion or storage
of water; structures for the use of water power, installations
for the utilization of subterranean or ground water and other
structures for utilization of water resources.
Q: How should water drainage be constructed from a higher
to a lower land?
A: When artificial means are employed to drain water from
higher to lower land, the owner of the higher land shall select
the routes and methods of drainage that will cause the
minimum damage to the lower lands, subject to the
requirements of just compensation.
Article 47. When the use, conveyance or storage of waters results in
damage to another, the person responsible for the damage shall pay
compensation.
45
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Article 48. When a water resources project interferes with the access of
landowner to a portion of his property or with the conveyance of irrigation
or drainage water, the person or agency constructing the project shall bear
the cost of construction and maintenance of the bridges, flumes and other
structures necessary for maintaining access, irrigation, or drainage, in
addition to paying compensation for land and incidental damages.
CHAPTER V
CONTROL OF WATERS
Article 53. To promote the best interest and the coordinated protection of
flood plain lands, the Secretary of Public Works, Transportation and
Communications may declare flood control areas and promulgate
guidelines for governing flood plain management plans in these areas.
Article 54. In declared flood control areas, rules and regulations may be
promulgated to prohibit or control activities that may damage or cause
deterioration or lakes and dikes, obstruct the flow of water, change the
natural flow of the river, increase flood losses or aggravate flood problems.
Article 55. The government may construct necessary flood control
structures in declared flood control areas, and for this purpose it shall have
a legal easement as wide as may be needed along and adjacent to the river
bank and outside of the bed or channel of the river.
Article 56. River beds, sand bars and tidal flats may not be cultivated except
upon prior permission from the Secretary of the Department of Public
Works, Transportation and Communication and such permission shall not
be granted where such cultivation obstructs the flow of water or increase
flood levels so as to cause damage to other areas.
Article 57. Any person may erect levees or revetments to protect his
property from flood, encroachment by the river or change in the course of
the river, provided that such constructions does not cause damage to the
property of another.
Article 58. When a river or stream suddenly changes its course to traverse
private lands, the owners of the affected lands may not compel the
government to restore the river to its former bed; nor can they restrain the
government from taking steps to revert the river or stream to its former
course. The owners of the land thus affected are not entitled to
compensation for any damage sustained thereby. However, the former
owners of the new bed shall be the owners of the abandoned bed in
proportion to the area lost by each.
The owners of the affected lands may undertake to return the river or
stream to its old bed at their own expense; Provided, That a permit
therefor is secured from the Secretary of Public Works, Transportation and
Communication and work pertaining thereto are commenced within two
years from the change in the course of the river or stream.
Article 59. Rivers, lakes and lagoons may, upon the recommendation of the
Philippines Coast Guard, be declared navigable either in whole or in part.
Article 60. The rafting of logs and other objects on rivers and lakes which
are flotable may be controlled or prohibited during designated season of
the year with due regard to the needs of irrigation and domestic water
supply and other uses of water.
Article 61. The impounding of water in ponds or reservoirs may be
prohibited by the Council upon consultation with the Department of Health
if it is dangerous to public health, or it may order that such pond or
reservoir be drained if such is necessary for the protection of public health.
Article 62. Waters of a stream may be stored in a reservoir by a permittee
in such amount as will not prejudice the right of any permittee
downstream. Whoever operates the reservoir shall, when required, release
water for minimum stream flow.
All reservoir operations shall be subject to rules and regulations issued by
the Council or any proper government agency.
___________________________
Article 63. The operator of a dam for the storage of water may be required
to employ an engineer possessing qualifications prescribed for the proper
operations, maintenance and administration of the dam.
Article 64. The Council shall approve the manner, location, depth, and
spacing in which borings for subterranean or ground water may be made,
determine the requirements for the registration of every boring or
alteration to existing borings as well as other control measures for the
exploitation of subterranean or ground water resources, and in
coordination with the Professional Regulation Commission prescribe the
qualifications of those who would drill such borings.
No person shall drill a well without prior permission from the Council.
Article 65. Water from one river basin may be transferred to another river
basin only with approval of the Council. In considering any request for such
transfer, the Council shall take into account the full costs of the transfer,
the benefits that would accrue to the basin of origin without the transfer,
the benefits would accrue to the receiving basin on account of the transfer,
alternative schemes for supplying water to the receiving basin, and other
relevant factors.
CHAPTER VI
CONSERVATION AND PROTECTION OF WATERS AND
WATERSHEDS AND RELATED LAND RESOURCES
Article 66. After due notice and hearing when warranted by circumstances,
minimum stream flows for rivers and streams, and minimum water levels
for lakes may be established by the Council under such conditions as may
be necessary for the protection of the environment, control of pollution,
navigation, prevention of salt damage, and general public use.
Article 67. Any watershed or any area of land adjacent to any surface water
or overlying any ground water may declared by the Department of Natural
Resources as protected area Rules and regulations may be promulgated by
such Department to prohibit or control such activities by the owners or
occupants thereof within the protected area which may damage or cause
the deterioration of the surface water or ground water or interfere with the
investigation, use, control, protection, management or administration of
such waters.
Article 68. It shall be the duty of any person in control of a well to prevent
the water from flowing on the surface of the land, or into any surface
water, or any porous stratum under neath the surface without being
beneficially used.
Article 69. It shall be the duty of any person in control of a well containing
water with minerals or other substances injurious to man, animals,
agriculture, and vegetation to prevent such waters from flowing on the
surface of the land or into any surface water or into any other aquifer or
porous stratum.
Article 70. No person shall utilize an existing well or pond or spread waters
for recharging substerranean or ground water supplies without prior
permission of the Council.
Article 71. To promote better water conservation and usage for irrigation
purposes, the merger of irrigation associations and the appropriation of
waters by associations instead of by individuals shall be encouraged.
No water permit shall be granted to an individual when his water
requirement can be supplied through an irrigation association.
Article 72. In the consideration of a proposed water resource project, due
regard shall be given to ecological changes resulting from the construction
of the project in order to balance the needs of development and the
protection of the environment.
Article 73. The conservation of fish and wildlife shall receive proper
consideration and shall be coordinated with other features of water
resources development programs to insure that fish and wildlife values
receive equal attention with other project purposes.
46
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Article 74. Swamps and marshes which are owned by the State and which
primary value for waterfowl propagation or other wildlife purposes may be
reserved and protected from drainage operation and development.
Article 75. No person shall, without prior permission from the National
Pollution Control Commission, build any works that may produce
dangerous or noxious substances or perform any act which may result in
the introduction of sewage, industrial waste, or any pollutant into any
source of water supply.
Water pollution is the impairment of the quality of water beyond a certain
standard. This standard may vary according to the use of the water and
shall be set by the National Pollution Control Commission.
Article 76. The establishment of cemeteries and waste disposal areas that
may affect the source of a water supply or a reservoir for domestic or
municipal use shall be subject to the rules and regulations promulgated by
the Department of Health.
Article 77. Tailings from mining operations and sediments from placer
mining shall not be dumped into rivers and waterways without prior
permission from the Council upon recommendation by the National
Pollution Control Commission.
Article 78. The application of agricultural fertilizers and pesticides may be
prohibited or regulated by the National Pollution Control Commission in
the areas where such application may cause pollution of a source of water
supply.
CHAPTER VII
ADMINISTRATION OF WATERS AND ENFORCEMENT OF THE
PROVISIONS OF THIS CODE
Article 79. The Administration and enforcement of the provisions of this
Code, including the granting of permits and the imposition of penalties for
administrative violations hereof, are hereby vested in the Council, and
except in regard to those functions which under this Code are specifically
conferred upon other agencies of the government, the Council is hereby
empowered to make all decisions and determinations provided for in this
Code.
Article 80. The Council may deputize any official or agency of the
government to perform any of its specific functions or activities.
Article 81. The Council shall provide a continuing program for data
collection, research and manpower development needed for the
appropriation, utilization, exploitation, conservation, and protection of the
water resources of the country.
Article 82. In the implementation of the provisions of this code, the Council
shall promulgate the necessary rules and regulations which may provide for
penalties consisting of a fine not exceeding One Thousand Pesos
(P1,000.00) and/or suspension or revocation of the water permit or other
right to the use of water. Violations of such rules and regulations may be
administratively dealt with by the Council.
Such rules and regulations prescribed by any government agency that
pertain to the utilization, exploitation, development, control, conservation,
or protection of water resources shall, if the Council so requires, be subject
to its approval.
Article 83. The Council is hereby authorized to impose and collect
reasonable fees or charges for water resources development from water
appropriators, except when it is for purely domestic purposes.
Article 84. The Council and other agencies authorized to enforce this Code
are empowered to enter upon private lands, with previous notice to the
owner, for the purpose of conducting surveys and hydrologic
investigations, and to perform such other acts as are necessary in carrying
___________________________
out their functions including the power to exercise the right of eminent
domain.
Article 85. No program or project involving the appropriation, utilization,
exploitation, development, control, conservation, or protection of water
resources may be undertaken without prior approval of the Council, except
those which the Council may, in its discretion, exempt.
The Council may require consultation with the public prior to the
implementation of certain water resources development projects.
Article 86. When plans and specifications of a hydraulic structure are
submitted for approval, the government agency whose functions embrace
the type of project for which the structure is intended, shall review the
plans and specifications and recommended to the Council proper action
thereon and the latter shall approve the same only when they are
inconformity with the requirements of this Code and the rules and
regulations promulgated by the Council. Notwithstanding such approval,
neither the engineer who drew up the plans and specifications of the
hydraulic structure, nor the constructor who built it, shall be relieved of his
liability for damages in case of failure thereof by reason of defect in plans
and specifications, or failure due to defect in construction, within ten (10)
years from the completion of the structure.
Any action recover such damages must be brought within five (5) years
following such failure.
Article 87. The Council or its duly authorized representatives, in the
exercise of its power to investigate and decide cases brought to its
cognizance, shall have the power to administer oaths, compel the
attendance of witnesses by subpoena and the production of relevant
documents by subpoena duces tecum.
Non-compliance of violation of such orders or subpoena and subpoena
duces tecum shall be punished in the same manner as indirect contempt of
an inferior court upon application by the aggrieved party with the proper
Court of First Instance in accordance with the provisions of Rules 71 of the
Rules of the Court.
Article 88. The Council shall have original jurisdiction over all disputes to
relating to appropriation, utilization, exploitation, development, control,
conservation and protection of waters within the meaning and context of
the provisions of this Code.
The decisions of the Council on water rights controversies shall be
immediately executory and the enforcement thereof may be suspended
only when a bond, in a amount fixed by the Council to answer for damages
occasioned by the suspension or stay of execution, shall have been filed by
the appealing party, unless the suspension is virtue of an order of a
competent court.
All dispute shall be decided within sixty (60) days after the parties submit
the same for decision or resolution.
The Council shall have the power to issue writs of execution and enforce its
decisions with the assistance of local or national police agencies.
Article 89. The decisions of the Council on water rights controversies may
be appealed to the Court of First Instance of the province where the subject
matter of the controversy is situated within fifteen (15) days from the date
the party appealing receives a copy of the decision, on any of the following
grounds; (1) grave abuse of discretion; (2) question of law; and (3)
questions of fact and law.
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
CHAPTER 2
MINERALS
Art. 519. Mining claims and rights and other matters
concerning minerals and mineral lands are governed by
special laws. (427a)
Q: What are the governing laws for the mineral resources of
the country?
A:
1. RA7942 Philippine Mining Act of 1995
Section 2 All mineral resources in public and private
lands within the territory and exclusive economic zone of
the Republic of Philippines are owned by the State
2. RA7076 Peoples Small-Scale Mining Act of 1991
Q: What are minerals?
A: It cover all inorganic substances found in nature, whether
solid, liquid, gaseous r any intermediate state, with the
exception of the soil which supports organic life and of
ordinary earth, gravel, sand and stone which are used for
building or construction purposes
Q: What are mineral lands?
A: Mineral Lands are lands which minerals exist in sufficient
quantity or quality to justify the necessary expenditures to be
incurred in extracting and utilizing such minerals.
Q: State the rule on Ownership of Mineral lands and
minerals?
A: All mineral lands of public domain and all belong to state.
The disposition, exploitation, development or utilization shall
be limited to citizens of Philippines, corporation at least 60%
of capital is owned by citizens.
Q: What is the Regalian doctrine in relation to the mineral
resources?
A: All minerals belong to the state whether the land covered
by torrens system and whether or not it is privately owned.
Ownership of mines does not depend upon the ownership of
soil in this country
CHAPTER 3
TRADE-MARKS AND TRADE-NAMES
Art. 520. A trade-mark or trade-name duly registered in the
proper government bureau or office is owned by and
pertains to the person, corporation, or firm registering the
same, subject to the provisions of special laws. (n)
___________________________
Art. 521. The goodwill of a business is property, and may be
transferred together with the right to use the name under
which the business is conducted. (n)
Art. 522. Trade-marks and trade-names are governed by
special laws. (n)
Q: What is trade mark of trade name?
A: TRADE-MARK of TRADE NAME is a duly registered in the
proper government bureau or office. It pertains to person,
corporation or firm registering the same, subject to
provisions of special laws.
Q: What is the effect of registration in the Bureau of
Trademark?
A: Duly registered in the bureau of trademark under the
intellectual property office, it shall pertain in ownership to
the person or juridical entity which registered it.
Q: What is a mark?
A: Any visible sign capable of distinguishing the goods (trade
mark) or services (service mark) of an enterprise and shall
include a stamped or marked container of goods.
NOTE:
a. Trade mark-goods
b. Service mark- services
Q: What is a collective mark?
A: Any visible sign designated as such in the application for
registration and capable of distinguishing the origin or any
other common characteristic, including the quality of the
goods or services of different enterprises which use the sign
under the control of the registered owner of the collective
mark.
Q: What is trade name?
A: The name of designation identifying or distinguishing an
enterprise.
Q: What is the function of a trademark?
A: It is to pint distinctively, either by its own meaning or by
association, to the origin or ownership of the wares to which
it is applied.
Q: State the distinction between trademark and trade name.
A:
Trade mark Trade name
Generally, a sign device or It is descriptive of the
mark affixed in goods or manufacturer or the dealer
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
articles, by which articles himself. It involves the
produced or dealt by a individuality of the matter or Title V. - POSSESSION
particular person or dealer for protection in
organization, are trade. CHAPTER 1
distinguished. POSSESSION AND THE KINDS THEREOF

Q: Discuss the doctrine of secondary meaning.
A: Word or phrase originally incapable of exclusive
appropriation with reference to an article on the market,
because geographically or otherwise descriptive, might
nevertheless have been used so long and so exclusively by
one producer with reference to his article, that in that trade
and to that branch of the purchasing public, the word or
phrase has come to mean that the articles was his product.
The word or phrase should acquire a secondary meaning as to
be exclusively associated with its products and business.
Ex. Vigan longganisa cannot be patented, it must be Mang
Eds vigan longganisa
Q: What is the test of dominancy?
A: If the competing trade mark contains the main or essential
or dominant features of another, and confusion deception is
likely to result infringement.
Q: What is the Wholistic of totality test?
A:
Q: What is infringement?
A: A colorable imitation
Q: What is unfair competition?
A: Passing of the product as if it is the original
Q: What is Goodwill?
A: Reputation for competence, honesty and fair dealing. Lure
of a product and place of business arising from name,
reputation, quality and general atmosphere of the business
house.
Q: Is goodwill a real or personal property?
A: It is a special personal property. It is inseparable from the
business to which it is adhering. But, it is transferable with
the right to use the name of the business under which it is
conducted.
Art. 523. Possession is the holding of a thing or the
enjoyment of a right. (430a)
Q: What is possession?
A: It is the holding of a thing and enjoyment of a right.
Q: Is possession a right or a fact?
A: It is a right and a fact. It is a fact since it exists; but from
the moment it exists, certain consequences follow, making it
also a right.
NOTE: Only things and rights which are susceptible of being
appropriated may be the object of possession (Art. 530)
Concept of Possession:
1. Implies relation between a person and things
2. Relation is one of power or control
3. Control is one of fact which is effective but without
resolving whether it carries with it or not a title of
ownership
Classification of possession
Q: What are the classes of Possession?
A:
1. In ones own name and in name of another
2. In the concept of an owner and possession in the
concept of a holder
3. Good faith and bad faith
Viewpoints of possession
Q: What are the viewpoints of possession?
A:
a. INCIDENTAL to OWNERSHIP -If you own it, automatically
you have the RIGHT TO POSSESSION
Ex: I own a house, I am entitled to possess it
b. INDEPENDENT from OWNERSHIP-Independent and
separate from ownership. For instance, a lessee of a
property who is not the owner has a RIGHT OF
POSSESSION to the property for the period of the lease
provided
Ex: I am renting a house, I am entitled to possess it.

Degrees of possession

Q: What are the different degrees of possession?

49
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
possidendi possessiones
A: Example: an owner of an Example: a lessee is
1. Possession WITHOUT TITLE -Mere holding without any apartment has the right to entitled to possess the
right possess it property leased
ex. Possession of a thief over a stolen thing
Q: What is constructive possession?
2. Possession WITH JURIDICAL TITLE but title IS NOT ONE
OF OWNERSHIP-juridical possession. In this case, the A: The possession of a part is a possession of the whole.
possession is peaceably acquired Possession in the eyes of the law does not mean that a man
ex. Tenant, depository or pledge has to have his feet on every sqaure meter of ground before
it can be said that he is in possession (Ramos v. Dir. Of Lands).
3. Possession WITH JUST TITLE which is sufficient to
TRANSFER OWNERSHIP but NOT ACQUIRED FROM REAL Art. 524. Possession may be exercised in one's own name or
OWNER- this degree of possession ripens to full in that of another. (413a)
ownership by lapse of time.
ex. Possession of a buyer of a land from one who Kinds of possession
pretends to be the owner
Q: What are the kinds of possession?
4. Possession WITH JUST TITLE FROM REAL OWNER- Perfect
possession. This is the possession that springs from A:
ownership (1) According to name used
a. In own name
Mere possession cannot defeat the title of a holder of a b. Name of another
registered Torrens Title to real property (Eduarte v. CA) (2) Concept of Possession
a. Concept of an owner
Elements of possession b. Concept of a holder
(3) Condition of the mind
Q: What are the elements of possession? a. Good faith
b. Bad faith
A:
1. Existence of a thing or right Q: What are the kinds of possession in anothers name?
2. Holding (actual or constructive) of the thing;
enjoyment or exercise of a right A:
3. Conscious and deliberate intention to possess the 1. Voluntary- as when the agent possesses for the principal
thing by virtue of agreement
4. Holding is by virtue of ones right, either as an owner 2. Necessary- as when a mother possesses for a child still in
or as a holder her womb
3. Unauthorized- this will become the principals possession
Q: How is the element holding of the thing accomplished? only after there has been a ratification without prejudice
to the effects on negotiorum gestio.
A: It is accomplished by acquiring possession through any of
the modes provided in 531. Owner of a real estate has possession, either when he himself
is physically in occupation of the property, or when another
Q: How would you characterize possession? person who recognizes his rights as owner is in such
occupancy. An example of actual possession of real property
A: Possession is presumed ownership. by an owner through another is a lease agreement whereby
the lessor transfers merely the temporary use and enjoyment
Right to possession v. Right of possession of the thing leased. (Reyes v. CA)

Q: Distinguish Right to possession from right of If both the fact of possession and right of possession are
possession. found in the same person, such possession is said to be
exercised in ones own name. If, on the other hand, the right
A: to the possession is in one person while the fact of possession
is in another person and the latter merely acts in
RIGHT TO POSSESSION RIGHT OF POSSESSION representation of the former, the latters possession is said to
It is an incident or attribute It is an independent right, be exercised in anothers name. In this case, the actual
of ownership of the thing separate from ownership possessor (the agent) is not considered in law as legal
Also known as Jus Also known as jus
50
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
possessor because the possession is not by virtue of his own
right. (Heirs of Jose Olviga v. CA)
Classes of possession
Q: What are the classes of possession?
A:
1.DIRECT POSSESSION -Owner or possessor is in actual
possession of a thing. Possessing the thing in his own name
2.INDIRECT POSSESSION-Possess the thing through an
authorized agent; Exercising it in the name of the agent or
another
NOTE: The owner can subject the property to his own will. He
can dispose the same. On the other hand, a mere possessor
has limited rights over property. As a matter of fact, he
cannot dispose.
Art. 525. The possession of things or rights may be had in
one of two concepts: either in the concept of owner, or in
that of the holder of the thing or right to keep or enjoy it,
the ownership pertaining to another person. (432)
Concepts of possession
Things or rights may be possessed in
CONCEPT OF AN OWNER -Possession of the possessor
proceeds from the persons belief or pretension that he is the
owner of the thing as manifested by certain acts of ownership
and the public believes he is the owner. May ripen into
ownership through acquisitive prescription. So long as a
person claims ownership of the property and does not
acknowledge in another a superior right, he is a possessor in
the concept of an owner, even a possessor in bad faith is
entitled to acquire ownership of a property by virtue of
extraordinary prescription
CONCEPT OF A HOLDER -Possession of the possessor does
not arise from any belief or conviction that he is the owner of
the thing, because the possessor acknowledges the
ownership of thing by another person.
NOTE: Lessee, usufructuary, etc. are considered as possessor
in the concept of a holder with respect to the thing itself but
considered in the concept of the owner with respect to their
right
Where a lease agreement, whether express or implied, is
subsequently entered into by the mortgagor and the
mortgagee after the expiration of the redemption period and
the consolidation of title in the name of the latter, a case for
ejectment or unlawful detainer, not a motion for a writ of
possession, is the proper remedy in order to evict from the
questioned premises a mortgagor turned lessee. A lessee is a
legitimate possessor of the subject properties and could not
___________________________
be deprived of its lawful possession by a writ of possession.
(Bukidnon Doctors Hospital, Inc. v. MBTC)
EFFECTS OF POSSESSION IN CONCEPT OF OWNER
Q: What are the effects of possession in concept of owner?
A:
1. Exercise acts of ownership as if he is the owner
2. Bring action for protection
3. Ask for registration of his possession
4. Entitled to just compensation
5. Can avail of acquisitive prescription
Art. 526. He is deemed a possessor in good faith who is not
aware that there exists in his title or mode of acquisition
any flaw which invalidates it.
He is deemed a possessor in bad faith who possesses in any
case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law may be
the basis of good faith. (433a)
Art. 527. Good faith is always presumed, and upon him who
alleges bad faith on the part of a possessor rests the burden
of proof. (434)
Art. 528. Possession acquired in good faith does not lose this
character except in the case and from the moment facts
exist which show that the possessor is not unaware that he
possesses the thing improperly or wrongfully. (435a)
Art. 529. It is presumed that possession continues to be
enjoyed in the same character in which it was acquired, until
the contrary is proved. (436)
Possessor in good faith and possessor in bad faith
Q: Who is a possessor in good faith?
A: He is one who is not aware of any existing flaw or defect in
his title or mode of acquisition, which flaw or defect renders
it invalid.
Q: What are the requisites to be considered as possessor in
good faith?
A:
1. Possessor has a title or mode of acquisition
2. Flaw or defect in title or mode which invalidates it
3. Possessor is unaware of the flaw or defect, or believes
that the thing belongs to him
A person who has no title or mode of acquisition but whose
occupation of the land of another is by reason of the latters
tolerance or permission cannot be considered a possessor or
builder in good faith.
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
faith would have received
Q: What do you mean by mistake upon a doubtful or As to rending fruits
difficult question of law may be the basis of good faith? Liable with legitimate No right
possessor for expenses of
A: It refers to the honest error in the application of the law or cultivatio and shall share in
in the interpretation of doubtful or conflicting legal provisions the net harvest to time of
or doctrines and not to ignorance of the law. possession
As to necessary expenses
Q: Are possessors in the concept of a holder considered Right of reimbursement and Right of reimbursement only
possessors in good faith? retention
As to useful expenses
A: Possessors in the concept of a holder are not possessors in Limited to right of removal None
good faith. Possessor in good faith presupposes ownership in
another. Q: What are the presumptions with respect to
possession?
Q: Who is a possessor in bad faith?
A:
A: He is one who is aware of the flaw or defect in his title or 1. Good faith
mode of acquisition which renders it invalid. 2. To be continuedly possessed in such character of
possession
NOTE: No tacking of bad faith, unless the successors in 3. Presumed ownership
interest had learned of the defect in the title and still
purchased it. Art. 530. Only things and rights which are susceptible of
being appropriated may be the object of possession. (437)
Q: Is bad faith transmissible?
Q: What are the 2 Kinds of possessor?
A: Bad Faith is not transmissible from a person to another,
even an heir is not affected by bad faith of the deceased A:
predecessor 1. Public possessor is the government
2. Private private person or entity
NOTE:
General Rule: Art3, NCC Ignorance of the law excuses no All things which are outside the commerce of man and those
one from compliance therewith. which, by reason of physical impossibility cannot be
subjected to human control, may not be the object of
Exception: Possessors mistake upon a doubtful or difficult possession
question of law may serve as the basis of his good faith.
Servitudes such as discontinuous easements or non-apparent
Petitioner is not conversant with the laws because he is not a easements are not susceptible of possession since they are
lawyer. He proceeded on the well-grounded belief that he not susceptible of continuous exercise.
was not violating the prohibition regarding the alienation of
the land. (Kasilag v. Roque, 69 Phil 217) Examples of things and rights which may not be the object
of appropriation:
Q: Which is presumed, good faith or bad faith?
1. Res Communes due to depth, distance or immensity
A: Good faith is always presumed sun, stars, moon, ocean
2. Forces of nature in diffused state unless brought
Q: When will the possession in good faith cease? under human control through science
3. Property of public dominion
A: Possession in good faith ceases from the moment defects 4. Discontinuous servitudes
in the title are made known to the possessors by extraneous 5. Non-apparent servitudes
evidence or by suit for recovery by the true owner.

Rights of the possessor

GOOD FAITH BAD FAITH

As to fruits received
Entitled to fruits while Reimburse fruits received or
possession is still in good which legitimate possessor
52
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________

CHAPTER 2 Occupation under Art531 Occupation under Art712

ACQUISITION OF POSSESSION Mode of acquiring Mode of acquiring
possession ownership
Art. 531. Possession is acquired by the material occupation Applies whether or not Applies only where the
of a thing or the exercise of a right, or by the fact that it is the property is with an property is without an
subject to the action of our will, or by the proper acts and owner or not owner
legal formalities established for acquiring such right. (438a) There must be intent to There must be intent to
possess own or appropriate
Art. 532. Possession may be acquired by the same person A parcel of land may be A parcel of land cannot
who is to enjoy it, by his legal representative, by his agent, the object of possession be the object of
or by any person without any power whatever: but in the occupation
last case, the possession shall not be considered as acquired
until the person in whose name the act of possession was Q: What is material occupation?
executed has ratified the same, without prejudice to the
juridical consequences of negotiorum gestio in a proper A: Actual physical possession or material apprehension
case. (439a)
Constructive Delivery equivalent to Material Occupation
Modes of Acquiring Possession
Q: What are the 2 Forms of Constructive Delivery involved in
Q: What are the modes of acquiring possession? Material Occupation?

A:
1. Material occupation of a thing or the exercise of a right
2. By subjecting the thing or right to the action of our will
3. By proper acts and legal formalities established for the
acquisition of such right
Q: Which of the modes is an original mode of acquisition?
A: Material occupation of a thing or the exercise of a right
Q: Which of the modes is considered derivative?
A:
1. By subjecting the thing or right to the action of our
will
2. By proper acts and legal formalities established for
the acquisition of such right
Q: What are the requisites for acquiring possession?
A:
1. Corpus material holding of the thing or exercise of right
which may be acquired through any modes mentioned
2. Animus possidendi intent to possess the thing or right
Ex: Stolen goods placed in the bag of another person without
the formers knowledge and consent not a possessor
because of lack of intent to possess the goods
Q: Differentiate Occupation under Art. 531 and occupation
under Art. 712.
A:
A:
1. Tradicion brevi manu
2. Tradicion constitutum possessorium
Q: What is tradicion brevi manu?
A: Possessor who is possessing the thing by a title other than
ownership, continues to possess it under a new title, now of
ownership.
Q: What is tradicion constitutum possessorium?
A: Possessor who is the owner of the property continues his
possession no longer under a title of ownership but under a
title less than ownership
Q: What is the Doctrine of constructive possession?
A: Possession is under title calling for the whole.
Ex: Possession and cultivation of a portion of a tract under a
claim of ownership of all is constructive possession if the
remainder is not in the adverse possession of another
(reason: the law does not mean that a man has to have his
feet on every square meter of ground before it can be said
that he is in possession)
Q: What are the requisites?
A:
1. Possessor was in actual possession of a portion or part of
the property
2. Claiming ownership of the whole area
3. Remainder of the area must not be in the adverse
possession of another person
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
4. Area claimed must be reasonable
NOTE: Mere planting of a sign or symbol of possession cannot
justify a Magellan-like claim of dominion over an immense
tract of territory. Application of the doctrine of constructive
possession shall depend, among others, to the size of the
tract in controversy with reference to the portion actually in
the possession of the claimant (Lasam v. Director of Lands,
1938, 65 Phil 367)
The mere fact of declaring uncultivated land for taxation
purposes and visiting it every once in a while, as was done by
the alleged possessor does not constitute acts of possession
(Ramirez v. Director of Lands, 1934, 60 Phil 114)
Mere casual cultivation of portions of the land by the
claimant and the raising thereon of cattle do not constitute
possession under claim of ownership (Director of Lands v.
Reyes, 1975, 68 SCRA 177)
Q: What do you mean by subjection to action of will?
A: A degree of control over the thing sufficient to subject the
same to the action of ones will.
Q: What are other kinds of constructive delivery?
A:
1. Tradicio symbolica delivery of symbols or some object
which represent those to be delivered thus placing the
thing under the control of the transferee
Example, delivery of a key to the house
2. Tradicion longa manu effected by the transferor
pointing out to the transferee the things which are being
transferred
Q: Again, who may acquire possession?
A:
1. Person who is to enjoy it
2. Agent or legal representative someone authorized to
acquire possession by the person who is to enjoy it
NOTE: If person acquires possession over the property
without prior consent of the principal, the principal may or
may not ratify the act of possession
However, if the principal ratified it, possession shall be
considered acquired only upon ratification.
In case of negotiorium gestio, ratification by the person for
whom the thing was acquired will retroact to the time of
apprehension by the gestor and the possession of the former
must be deemed to have been acquired from that moment
Article 22. Every person who through an act of performance
by another, or any other means, acquires or comes into the
___________________________
possession of something at the expense of the latter
without just or legal ground, shall return the same to him.
NOTE: Enrichment with a just or legal ground is not
prohibited
Coverage:
1. Someone acquires or comes into possession of
something which means delivery or acquisition of
things
2. Undue acquisition at the expense of another, without
just or legal ground
Note that rendition of services not included EXCEPT if services
rendered benefitted another (based on quasi-contracts--no
person shall be unjustly enriched at the expense of another).
Q: What is the limitation to this rule?
A: Accion In Rem Verso recovery for what has been paid
without just cause; applicable only after exhausting all other
means of recovering (contract, quasi-contract, crime or quasi-
delict).
Q: What are the requisites for the accion in rem verso?
A:
1. Enrichment
2. Another suffered a loss
3. Without just or legal ground
4. No other actions based on contract, quasi-contracts,
crime or quasi-delict
Q: Is the government exempted from this principle of unjust
enrichment?
A: Government not exempted from the principle of unjust
enrichment.
Q: Distinguish rem verso from solution indebiti.
A: Rem Verso is payment could be made voluntarily but there
will still be recovery. It is subsidiary to solution indebiti. This is
different from Solutio Indebiti which is payment made by
mistake (UST vs. City of Manila).
Q: Is capacity to act necessary for the acquisition of
possession?
A:
GR: Capacity to act is necessary for the acquisition of
possession
Exception:
Art. 533. The possession of hereditary property is deemed
transmitted to the heir without interruption and from the
54
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
moment of the death of the decedent, in case the
inheritance is accepted.
One who validly renounces an inheritance is deemed never
to have possessed the same. (440)
If possession of property is effected by way of succession,
whether testate or intestate, such possession is deemed
transmitted to the heir without interruption from the
moment of the death of the decedent but only if the heir
accepts the inheritance.
Accepted inheritanc is deemed possession without
interruption from the death of the decedent
Q: What is the reason for the rule of uninterrupted
possession?
A: The purpose is to prevent vacuum as regards possession
during the interim period between the death of the decedent
and the heirs acceptance.
Possession is deemed transmitted from the moment of death
of the decedent and without interruption:
1. If the heir accepts the inheritance- retroactive effect
from date of death; and
2. If the heir repudiates- he never possessed the
inheritance; other legal heirs is in possession or if
none, the state.
Art. 534. On who succeeds by hereditary title shall not suffer
the consequences of the wrongful possession of the
decedent, if it is not shown that he was aware of the flaws
affecting it; but the effects of possession in good faith shall
not benefit him except from the date of the death of the
decedent. (442)
GR: The heir will not suffer the consequences of the wrongful
act of the decedent.
XPN: Except if it shown that he was aware of the flaws or
defects in the possession of his predecessor in interest.
Q: What is the rationale behind the rule?
A: Bad faith is intransmissible because it is a state of mind
personal to the person who acted.
Existence of bad faith on the part of the possessor does not
prejudice his successors-in-interest bad faith is not
transmissible from one person to another, not even to an
heir. Accordingly, only personal knowledge of the flaw in
ones title or mode of acquisition can make him a possessor
in bad faith. Consequently, the effects of possession in good
faith shall not benefit the heir except from the date of the
death of the decedent.
___________________________
Art. 535. Minors and incapacitated persons may acquire the
possession of things; but they need the assistance of their
legal representatives in order to exercise the rights which
from the possession arise in their favor. (443)
Art. 536. In no case may possession be acquired through
force or intimidation as long as there is a possessor who
objects thereto. He who believes that he has an action or a
right to deprive another of the holding of a thing, must
invoke the aid of the competent court, if the holder should
refuse to deliver the thing. (441a)
Art. 537. Acts merely tolerated, and those executed
clandestinely and without the knowledge of the possessor
of a thing, or by violence, do not affect possession. (444)
Minors may acquire possession provided they are
represented. They have the capacity to acquire property, but
if there are legal impediments, they must be represented by
their legal representatives.
Q: What are the modes where possession cant be acquired?
A:
1. Use of force/intimidation or by violence as long as
there is a possessor who objects thereto;
2. Acts executed clandestinely and without knowledge
of the possessor which means that:
-acts are not public and unknown to the owner or
possessor.
3. Stealth; and
4. Acts merely tolerated (permissive use) such as when
possession is allowed by the owner not by reason of
duty or obligation but by the impulse of sense of
neighborliness or good familiarity with persons.
That petitioners illegally entered into and occupied the
property in question, respondents had no right to take the
law into their own hands and summarily or forcibly eject the
occupants therefrom. The rule of law does not allow the
mighty and privileged to take the law into their own hands to
enforce their alleged rights. They should go to court and seek
judicial vindication. (Heirs of Pedro Laurora v. Sterling
Technopark III, et al., G.R. No. 146815, April 9, 2003)
Q: What are the acts which do not affect possession?
A: These acts do not affect possession:
1. Abandonment: no longer interested in possessing,
waiver;
2. Action for ejectment unlaqful detainer and
forcible entry;
3. criminal action : trespassing; and
4. possession of squatters : mere tolerance; does not
affect possession, owner is not ousted of his
property.
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Q: What are the distinctions between abandonment and
tolerance?
A:
Abandonment Tolerance
No longer interested in Allowed by owner by sense
possessing, waiver. of neighborliness or good
familiarity with persons
Recognize and assert right
but temporarily allow to
occupy
Q: What do you mean by toleration?
A: It is the act or practice of permitting or enduring
something not wholly approved of.
Acts merely tolerated are those which by reason of
neighborliness or familiarity, the owner of the property
allows his neighbor or another person to do on the property.
(Sarona v. Villegas, 131 Phil 365, March 27, 1968)
Clandestine (secret, hidden or concealed) and unknown acts
no acquisitive prescription
Art. 538. Possession as a fact cannot be recognized at the
same time in two different personalities except in the cases
of co-possession. Should a question arise regarding the fact
of possession, the present possessor shall be preferred; if
there are two possessors, the one longer in possession; if
the dates of the possession are the same, the one who
presents a title; and if all these conditions are equal, the
thing shall be placed in judicial deposit pending
determination of its possession or ownership through
proper proceedings. (445)
Rules of Preference in case of Conflict over Possession de
Facto
1. Present or actual possessor shall be preferred;
2. If there are 2 possessors, the one longer in possession is
preferred;
3. If the dates of possession are the same, the one who
presents a title; and
4. If all of the above are equal, the fact of possession shall
be judicially determined, and in the mean time, the thing
shall be placed in judicial deposit.
Art. 538 settles only question of possession and such
possession is different from ownership.
Possession may be enjoyed by 2 or more possessors: co-
possession, consent of owner
Possession as a fact cannot be recognized at the same time in
two different personalities except in the case of co-
possession
___________________________
NOTE: As between lessee and one who was allowed by the
owner to enter the land and construct a house, lessee will be
sustained.
CHAPTER 3
EFFECTS OF POSSESSION
Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means
established by the laws and the Rules of Court.
A possessor deprived of his possession through forcible
entry may within ten days from the filing of the complaint
present a motion to secure from the competent court, in the
action for forcible entry, a writ of preliminary mandatory
injunction to restore him in his possession. The court shall
decide the motion within thirty (30) days from the filing
thereof. (446a)
Q: What are the rights of every possessor?
A:
1. Right to be respected in his possession;
2. Right to be protected in or restored to said
possession (forcible entry, unlawful detainer) by
legal means should he be disturbed therein;
3. To secure from a competent court in an action for
forcible entry the proper writ to restore him in his
possession; and
4. Exercise self help
Possession contemplated by law is legal possession thief
cannot exercise possession. Such possession is exercised by
every possessor in GF and BF.
Only the possession acquired and enjoyed in the concept of
owner can serve as a title for acquiring dominion.
Mere tax declarations do not vest or prove ownership of the
property in the declarant. Yet, it is also undeniable that the
payment of realty tax coupled with actual possession in the
concept of owner is a positive indication of ownership.
PRELIMINARY MANDATORY INJUNCTION
Q: What is a writ of preliminary mandatory injunction?
A: It is a writ directing a person to do an act, commanding to
give back the land or to respect the possession. It is an
incidental remedy.
A provisional remedy granted at any stage of an action prior
to judgment or final order, commanding or requiring the
performance of a particular act. Its purpose is to prevent
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
further dispossession. This applies to actions for forcible entry
and unlawful detainer.
PRELIMINARY PROHIBITORY INJUNCTION
Q: What is a preliminary prohibitory injunction?
A: It is an order preventing a person from doing an act; an
order telling him to stop from taking the property.
RULES OF COURT
Section 15. Preliminary injunction. The court may grant
preliminary injunction, in accordance with the provisions of
Rule 58 hereof, to prevent the defendant from committing
further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible from
the filing of the complaint, present a motion in the action for
forcible entry or unlawful detainer for the issuance of a writ
of preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within thirty
(30) days from the filing thereof.
Section 20. Preliminary mandatory injunction in case of
appeal. Upon motion of the plaintiff, within ten (10) days
from the perfection of the appeal to the Regional Trial Court,
the latter may issue a writ of preliminary mandatory
injunction to restore the plaintiff in possession if the court is
satisfied that the defendant's appeal is frivolous or dilatory or
that the appeal of the plaintiff is prima facie meritorious.
Art. 540. Only the possession acquired and enjoyed in the
concept of owner can serve as a title for acquiring dominion.
(447)
Acquisitive prescription
A possessor in the concept of an owner, serve as title for
acquiring ownership over a property by acquisitive
prescription:
1. Personal property- 4 years in good faith and 8 years
in case of bad faith;
2. Realty- 10 years for good faith (ordinary
prescription) and 30 years in bad faith (extra-
ordinary prescription).
Just title
Not limited to documents which are sufficient to transfer
ownership. It can cover other acts, even verbal acts which are
legally sufficient to transmit ownership of property of real
right:
i. PERFECT (Just title in possession) true and valid
title sufficient to transfer ownership; Titulo Verdadero y
valido
___________________________
ii. IMPERFECT (Just title in prescription) COLORABLE
TITLE: although there is a mode of transferring ownership,
nonetheless the grantor is not the owner; must be proved;
titulo Colorado.
PUTATIVE TITLE (Titulo Putativo)
Putative title is not just title. Accordingly, it is where a person
has the impression and belief that he is the owner of the
property, however he is not the owner there being no mode
of acquiring ownership e.g. stealing not a mode of
acquiring ownership.
Mere payment of real estate taxes does not prove ownership.
Art. 541. A possessor in the concept of owner has in his
favor the legal presumption that he possesses with a just
title and he cannot be obliged to show or prove it. (448a)
Q: State the legal presumption when it comes to
possession?
A: The law presumes that the possessor is in the concept of
owner possesses just title. Thus, he cannot be obliged to
show or prove it.
For legal presumption of ownership to arise, the person must
be: (disputable)
a. In actual or constructive possession of the property;
and
b. Possession must be in the concept of an owner.
Article 1118. Possession has to be in the concept of an
owner, public, peaceful and uninterrupted.
This article applies to both real and personal property as the
law did not distinguish.
Presumptions in favor of the possessor
Q: What are the presumptions created by law in favor of the
possessor?
A:
1. Presumption on the continuance of possession;
2. Uninterrupted possession of hereditary property;
3. Possession with just title;
4. Possession of movables with real property;
5. Exclusive possession of common property;
6. Continuous possession; and
7. Uninterrupted possession.
Q: When is the presumption that a possessor has a just title
applicable?
A: It only applies when 2 requisites are present:
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
1. He must be in possession; and 2. Can be rebutted by evidence e.g. lessee can prove he
2. The possession must be in the concept of an owner owns appliances in the leased apartment; and
and not a mere holder. 3. Only movables and immovables doesnt include rights,
only corporeal things.
Q: What are the reasons for the presumption?
NOTE: The possession of movables found in an immovable is
A: presumed, unless it is shown that the should be excluded.

1. Presumption that one is in good faith or that one is

innocent of wrong; Art. 543. Each one of the participants of a thing possessed in
2. Inconvenience of carrying proof of ownership common shall be deemed to have exclusively possessed the
around. part which may be allotted to him upon the division thereof,
for the entire period during which the co-possession lasted.
Q: For purposes of prescription, is this prescription Interruption in the possession of the whole or a part of a
applicable? thing possessed in common shall be to the prejudice of all
the possessors. However, in case of civil interruption, the
A: No. Rules of Court shall apply. (450a)

JUST TITLE IN POSSESSION v. JUST TITLE IN PRESCRIPTION Q: When is there co-ownership?

JUST TITLE IN POSSESSION JUST TITLE IN PRESCRIPTION A: When the subject matter is undivided and there are two or
Presumed Must be proved more possessors.
Just title here means titulo Just title means titulo
vardadero y valido (true and colorado (mere colorable In case of partition, each co-possessor shall be deemed to
valid title sufficient to title) have exclusively possessed the part which may be allotted to
transfer ownership him for the entire period that the state of co-possession
lasted.
Art. 542. The possession of real property presumes that of
the movables therein, so long as it is not shown or proved Any interruption in the possession of the whole or part of the
that they should be excluded. (449) thing possessed in common shall be to the prejudice of all the
co-possessors.
Q: What are the effects of Possession in the Concept of
Owner? Upon the partition of the property in common, each one of
the co-owners shall be deemed in possession of that portion
A: allotted upon him from the time partition is made for the
1. Raises a disputable presumption of ownership; entire period the co-possession lasted.
2. Disputable presumption that the possessor has just
title and he cannot be obliged to show it; and This is relevant in computation for purposes of acquisitive
3. Can ripen into ownership through acquisitive prescription.
prescription subject to additional requirements
under Art1118, NCC LEGAL/ CIVIL INTERRUPTION

Q: What is just title?
A: Just tile is that which is legally sufficient to transfer
ownership of the thing or the real right to which it relates and
may be proved orally by witnesses as well as through written
documents or evidences.
Article 1131. For the purposes of prescription, just title must
be proved; it is never presumed.
Acquisitive Prescription
1. Possession of real property presumes that movables
found therein are possessed by occupying the real
property (disputable presumption);
Interruption can include losing the property. It is produced by
judicial summons.
Q: What do you mean by judicial summons?
A: It is the service of a copy of a complaint upon the
defendant together with the order of the court requiring the
latter to answer within a certain period of time, failing in
which, default order may be issued; issued so that the court
will acquire jurisdiction over the person of the defendant.
Q: When will judicial summons not give rise to interruption?
A:
1. When the same is void for lack of legal solemnities;

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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
2. Plaintiff should desist from the complaint or should allow
the proceedings to lapse; and
3. Possessor should be absolved from the complaint.
Art. 544. A possessor in good faith is entitled to the fruits
received before the possession is legally interrupted.
Natural and industrial fruits are considered received from
the time they are gathered or severed.
Civil fruits are deemed to accrue daily and belong to the
possessor in good faith in that proportion. (451)
Possessor in GF is entitled to gathered fruits before he is
legally interrupted.
With regard to civil fruits, the date of receipt of payment is
immaterial as when we speak of rents/ stocks since they are
deemed to accrue daily. On the other hand, with respect to
industrial and natural fruits, the reference point is the date of
receipt of gathering or severing; through cultivation or labor.
Art. 545. If at the time the good faith ceases, there should
be any natural or industrial fruits, the possessor shall have a
right to a part of the expenses of cultivation, and to a part of
the net harvest, both in proportion to the time of the
possession.
The charges shall be divided on the same basis by the two
possessors.
The owner of the thing may, should he so desire, give the
possessor in good faith the right to finish the cultivation and
gathering of the growing fruits, as an indemnity for his part
of the expenses of cultivation and the net proceeds; the
possessor in good faith who for any reason whatever should
refuse to accept this concession, shall lose the right to be
indemnified in any other manner. (452a)
GR: Fruits belong to the owner.
XPN: Possessors have a right over the fruits (good faith or bad
faith).
Possessor in Good Faith
As to the fruits already received
Possessor is entitled to fruits received by him before his
possession is legally interrupted.
GR: Interruption of possession must be through legal means.
XPN: Possessor in good faith becomes a possessor in bad
faith from knowledge that he possesses the thing improperly
or wrongly.
Q: What is the reckoning point as to the time the fruits are
considered as having been received?
___________________________
A:
a. Natural and Industrial Fruits from the time they are
gathered / severed.
b. Civil Fruits deemed to accrue daily.
Example, 30,000 rent per month, possession was
th
interrupted on the 11 day, possessor is entitled to
10,000 rent
As to Pending fruits
*only for natural and industrial fruits; not applicable to civil
fruits
Owner and possessor shall have a right to a part of the net
harvest and each shall divide the expenses of cultivation in
proportion to the time of their respective possession.
If owner chooses not to pay for the expenses, he may allow
the possessor to finish the cultivation and gathering of
growing fruits and he will not have any share in the harvest
if possessor refuses the concession, possessor loses the right
to be indemnified in any other manner.
Charges shall also be divided by the possessor and the owner
in proportion to the time of their respective possessions
(example, tax).
GR: Rules are not applicable to trees (reason, accession
industrial applies taking into consideration, good faith and
bad faith).
XPN: Trees are being exploited for an industry = industrial
fruits.
Possessor in Bad Faith
As to the fruits already received
The possessor in this case shall not be entitled to fruits. Also,
he must reimburse owner for fruits actually received. Yet he
has a right to recover expenses for the production, gathering
and preservation of the fruits (necessary expenses for
preservation of the land or thing) upon the owners receipt of
reimbursement.
As to the pending fruits
Article 449. He who builds, plants or sows in bad faith on
the land of another, loses what is built, planted or sown
without right to indemnity.
He is not entitled to reimbursement of expenses incurred
but is entitled to recover necessary expenses. With respect
to trees, rules on accession industrial apply.
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
Article 450. The owner of the land on which anything has retain them (Art. legal possession
been built, planted or sown in bad faith may demand the 545) could have
demolition of the work, or that the planting or sowing be reeceived with
removed, in order to replace things in their former condition due care or
at the expense of the person who built, planted or sowed; diligence
or he may compel the builder or planter to pay the price of 2. pay damages
the land, and the sower the proper rent. amounting to a
reasonable rent
Article 451. In the cases of the two preceding articles, the for the term of
landowner is entitled to damages from the builder, planter possession
or sower. b. Pending

Q: What if the expenses arise greater? Art. 546. Necessary expenses shall be refunded to every
possessor; but only the possessor in good faith may retain
A: The present rules will not apply. the thing until he has been reimbursed therefor.

The herein rules shall apply only natural/ industrial fruits still Useful expenses shall be refunded only to the possessor in
growing and not yet ripe for harvesting. Furthermore, they good faith with the same right of retention, the person who
will only apply when there is net harvest/ proceeds. has defeated him in the possession having the option of
refunding the amount of the expenses or of paying the
The possessor shall have a right to a part of the expenses of increase in value which the thing may have acquired by
cultivation and part of the net harvest both in proportion to reason thereof. (453a)
the time of possession ; assumption that one has been
declared as lawful possessor. NOTE: Necessary expenses shall be refunded to possessors
whether good or bad faith. These expenses are incurred to
FORMULA: preserve the property without which it will physically
deteriorate. But only possessor in GF will have the right of
Gross harvest expenses = net harvest (In order to prevent retention.
unjust enrichment)
Useful expenses shall only be refunded to possessor in GF.
The net harvest shall be proportionately divided between Note that, the luxurious expenses shall not be included.
spenders in accordance with length of possession. The owner
may allow possessor to finish cultivation / gathering and if Summary of rules
refused, the latter shall lose his right to be indemnified.
EXPENSES POSSESSOR IN GF POSSESSOR IN BF
Summary of rules Necessary this shall be Shall have a right
expenses refunded to every only to the
KINDS OF FRUITS Possessor in GF Possessor in BF possessor; but expenses
(Art. 544) (Art. 549) only the possessor mentioned in par.
Entitled to the Shall reimburse in GF may retain 1 of Art. 546 and
fruits received the fruits received the thing until he in Art. 443
before the and those which has been
possession is the legitimate reimbursed
legally interrupted possession could thereof
have received Useful expenses Shall be refunded No right
Civil Are deemed to Not entitled only to the whatsoever
accrue daily and possessor in GF
belong to the with the same
possessor in GF in right of retention,
that proportion the person who
(Art. 544, par.2) has defeated him
Natural/ Are considered 1. Must in the possession
Industrial received from the account for them having the option
a. Gathered time they are and return the of refunding the
gathered or value of: amount of the
covered and the a.those already expenses or of
possessor in GF receivd paying the
has the right to b.those which the increase in value
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
which the thing Article 443. The expenses incurred in improvements for pure
may have luxury or mere pleasure shall not be refunded to the
acquired by possessor in bad faith, but he may remove the objects for
reason thereof which such expenses have been incurred, provided that the
Luxurious It is not entitled to It is not entitled to thing suffers no injury thereby, and that the lawful
expenses refund but he may refund but he may possessor does not prefer to retain them by paying the
remove the same remove the same value they may have at the time he enters into possession.
if the principal if the thing suffers (445a)
suffers no injury injury and that the
and the successor lawful possessor NOTE: Art. 548 refers to a possessor in good faith who
in possession does do not prefer to introduced improvements for pure luxury.
not prefer to retain them by
refund the paying the value As for luxurious or ornamental expenses, the possessor in GF
amount expended they may have at can remove as long as theres no substantial damage to the
the time he enters principal. However, a possession in BF can remove provided
into possession no damage, provided further lawful possessor does not wish
Cost of litigation Generally, to the to retain and pay value at the time he enters possession.
losing party
Loss or No liability, unless Always liable Under Art 549, the possessor in BF shall reimburse fruits
deterioration loss is due to his received and those which the lawful possession could have
fraudulent act or received and shall have a right only to the expenses
negligence mentioned in Art 546 and art 445.

Art. 547. If the useful improvements can be removed
without damage to the principal thing, the possessor in
good faith may remove them, unless the person who
recovers the possession exercises the option under
paragraph 2 of the preceding article. (n)
Art. 550. The costs of litigation over the property shall be
borne by every possessor. (n)
NOTE: The cost of litigation will be shouldered by the
defeated party

Q: When may a possesssor in GF remove the useful
improvements?
A: Possessor in good faith may remove the useful
improvements he introduced without damage; substantial
damage/ injury; that which will reduce the value of the
property.
Art. 551. Improvements caused by nature or time shall
always insure to the benefit of the person who has
succeeded in recovering possession. (456)
NOTE: Improvements caused by nature or time shall always
inure to the benefit of persons who is declared as the lawful
possessor.

Q: How about a possessor in bad faith?
A: Possessor in bad faith has no right to remove useful
improvements whether or not it will cause damage.
Q: Can luxury expenses be refunded?
A: Expenses for pure luxury shall not be refunded to the
possessor whether in good faith or bad faith.
Art. 548. Expenses for pure luxury or mere pleasure shall not
be refunded to the possessor in good faith; but he may
remove the ornaments with which he has embellished the
principal thing if it suffers no injury thereby, and if his
successor in the possession does not prefer to refund the
amount expended. (454)
Art. 549. The possessor in bad faith shall reimburse the
fruits received and those which the legitimate possessor
could have received, and shall have a right only to the
expenses mentioned in paragraph 1 of Article 546 and in
Examples: alluvial deposits; by time: flavor of wine, antique
article
Art. 552. A possessor in good faith shall not be liable for the
deterioration or loss of the thing possessed, except in cases
in which it is proved that he has acted with fraudulent
intent or negligence, after the judicial summons.
A possessor in bad faith shall be liable for deterioration or
loss in every case, even if caused by a fortuitous event.
(457a)
Q: A possessor in good faith shall not be liable for
deterioration or loss. What are the exceptions?
A:
1. where he acted with fraudulent intent
2. acted with negligence after judicial summons
NOTE: A possessor in bad faith is always liable for
deterioration or loss during even by fortuitous event

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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Art. 553. One who recovers possession shall not be obliged
to pay for improvements which have ceased to exist at the
time he takes possession of the thing. (458)
Q: When will the person who recovers possession be not
obliged to pay for improvements?
A: At the time the possession of the thing was taken the
improvements no longer exist, the obligation to reimburse
disappears.
Art. 554. A present possessor who shows his possession at
some previous time, is presumed to have held possession
also during the intermediate period, in the absence of proof
to the contrary. (459)
Principle of continuous possession
Q: What is the principle of continuous possession?
A: If a person is the present possessor of a property and it is
established that he had possessed it before, it is presumed
that he was also in possession during the interval period.
Q: When is this principle relevant?
A: It is relevant in cases involving acquisitive prescription
Art. 555. A possessor may lose his possession:
(1) By the abandonment of the thing;
(2) By an assignment made to another either by onerous or
gratuitous title;
(3) By the destruction or total loss of the thing, or because it
goes out of commerce;
(4) By the possession of another, subject to the provisions of
Article 537, if the new possession has lasted longer than one
year. But the real right of possession is not lost till after the
lapse of ten years. (460a)
Q: A possessor may lose his possession in what instances?
A:
1.by ABANDONMENT of the thing -voluntary renunciation of
a property or right by its owner or possessor. It is the
intention to lose the thing.
Q: May real property be abandoned?
A: Only personal property may be abandoned, does not apply
to land .
Q: When can you say that a property has been abandoned?
A: Spes recuperandi (hope of recovery or recapture) is gone
and the animus revertendi (intent to recover) is finally given
up.
___________________________
Q: Who should make the abandonment?
A: Must be made by a possessor in the concept of an owner.
NOTE: There is no real intention to abandon a property when,
as in the case of a shipwreck or a fire, things are thrown into
the sea upon the highway. Owner of the property cannot be
held to have abandoned the same until at least he has some
knowledge of the loss of its possession or of the loss of the
thing. (US v. Laurente Rey, 8 Phil 500, 1907)
2.ASSIGNMENT made to another either by gratuitous or
onerous title- the total transfer of ownership of a property by
the owner to another person.
a. Onerously (sale)
b. gratuitous (donation)
Q: What is assignment?
A: Relinquishment of possession in favor of a definite or
specified transferee.
Q: What is the rule with respect to the assignor?
A: Assignor must be in the concept of owner and has capacity
to alienate.
NOTE: In this case, both possession de facto and de jure are
lost and no action for recovery will be allowed
3.DESTRUCTION or TOTAL LOSS of the thing or because it
goes out of commerce.
Q: When is a property considered lost?
A: A property is considered lost when it is destroyed
physically such as when it got totally burned or dismantled to
the extent that it becomes useless and unserviceable.
a. Thing perishes
b. Goes out of commerce
c. Disappears is such a way that its existence is
unknown or if known, cannot be recovered.
Q: When is there total loss?
A: Although the property remains physically intact, it cannot
be recovered anymore.
Q: What are the 2 kinds of loss?
A:
1. Physical loss - existence is unknown or cannot be
recovered
2. Juridical loss - goes out of commerce or expropriated
by the government
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
4. POSSESION OF ANOTHER- Possession is lost when
prescription has set in
NOTE: If possession is only out of mere tolerance by the
owner, the same is not a valid mode of acquiring possession.
It cannot amount to loss of possession.
Art. 556. The possession of movables is not deemed lost so
long as they remain under the control of the possessor, even
though for the time being he may not know their
whereabouts. (461)
Q: What does the law contemplate by the word control?
A: Juridical control or right that the movable remains in the
possessors patrimony
Art. 557. The possession of immovables and of real rights is
not deemed lost, or transferred for purposes of prescription
to the prejudice of third persons, except in accordance with
the provisions of the Mortgage Law and the Land
Registration laws. (462a)
Art. 558. Acts relating to possession, executed or agreed to
by one who possesses a thing belonging to another as a
mere holder to enjoy or keep it, in any character, do not
bind or prejudice the owner, unless he gave said holder
express authority to do such acts, or ratifies them
subsequently. (463)
Possessor of a property belonging to another and who holds
it merely for the purpose of enjoying or keeping it, had placed
the property into the possession of another in any character,
the owner is not bound thereby.
Owner can recover possession from subsequent possessor
except if the owner expressly authorized the holder to do so
or if he ratifies the acts of the holder.
Art. 559. The possession of movable property acquired in
good faith is equivalent to a title. Nevertheless, one who has
lost any movable or has been unlawfully deprived thereof
may recover it from the person in possession of the same.
If the possessor of a movable lost or which the owner has
been unlawfully deprived, has acquired it in good faith at a
public sale, the owner cannot obtain its return without
reimbursing the price paid therefor. (464a)
Q: What is Title?
A: Juridical act which transfers ownership, not a document
Q: The general rule is possession of movables in good faith is
equivalent to title. What are the requisites for this rule to
apply?
___________________________
A:
1. Movable property is acquired in good faith
2. Possession must be in the concept of an owner
Principle of irrenvidicability
Q: What is the principle of irrenvidicability?
A: It contemplates of a situation where personal property is
in the possession of one who acquires and holds in good
faith. The true owner cannot recover possession of movable
acquired in good faith is equivalent to title.
Q: What is the exception to this rule?
A: Except when owner lost it or illegally deprives
Q: What is then the duty of the finder?
A:
a. If owner known, the finder must return
b. If unknown, the finder must deposit the movable with
the mayor of the city or municipality where the thing was
found. The mayor is bound to make a public
announcement for 2 consecutive weeks. Where no
owner appears after 6months, the thing will be given to
the finder (if owner claims, reward of 1/10 of the sum or
price of thing found must be given to the finder).
Q: What if the finder does not deposit the thing?
A: If finder or third person who acquired the thing
subsequent to finder does not deposit the thing, he may be
penalized for the crime of theft. In such case, owner may
recover without paying indemnity.
NOTE: General Rule: Owner may recover the thing without
paying indemnity
Exception: Possessor acquired the property through public
sale (owner must reimburse the price paid)
Q: The owner who lost the thing or was unlawfully deprived
cannot recover in what instances?
A:
1. Possessor acquired the thing at the merchants store or
fairs or markets
2. Possessor acquired the thing by sale under statutory
power of sale or under the order of a court of competent
jurisdiction
3. Possessor is a holder in due course of a negotiable
document of title to goods or owner is barred by the
principle of negotiable instruments
4. Owner is barred by his own acts or neglect from denying
the sellers title
5. Prescription
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
1. Possession was unlawfully or unjustly lost
Q: What is a public sale? 2. Possessor was able to recover his possession by lawful
means
A: Sale where a public notice is duly publicized in a 3. Uninterrupted possession shall be beneficial to him
newspaper of general circulation informing the public about
the sale of thing and where anybody has the right to make a
bid or an offer to buy.
Title VI. - USUFRUCT
Art. 560. Wild animals are possessed only while they are
under one's control; domesticated or tamed animals are CHAPTER 1
considered domestic or tame if they retain the habit of USUFRUCT IN GENERAL
returning to the premises of the possessor. (465)
Art. 562. Usufruct gives a right to enjoy the property of
Kinds of Animals another with the obligation of preserving its form and
substance, unless the title constituting it or the law
Q: What are the kinds of animals? otherwise provides. (467)

A:
1. Wild characterized by natural freedom. They are
possessed only while they are under ones control. Once
natural freedom is regained, they immediately regain
their status of res nullius and may be acquired through
occupation.
2. Domesticated or tamed formerly wild but which have
been subdued and retained the habit of returning to the
premises of the possessor or owner. Once they lose the
habit of returning to the premises of the possessor, they
become res nullius.
Usufruct in General
Q: What is usufruct?
A: It is the right of a person (usufructuary), to enjoy the
property of another (owner) with obligation to returning it at
the designated time and preserving its form and substance.
It is a real right vested in a person called a usufructuary,
whereby he has the right to enjoy the property, including the
fruits, of another called the naked owner, with the obligation
of returning it a designated time and preserving its form and
substance, unless the title constituting it or law provides
otherwise.

Note that in case of domesticated animals, possessor has 20 Extent of usufruct

days counted from occupation by another to reclaim the
animal/s.
3. Domestic or tame born or reared under the control and
care of man. Owner can recover them from present
possessors without need of indemnity. They are not
subject to occupation unless there has been
abandonment but may be acquired through acquisitive
prescription (4years if good faith).
Note that in case of domestic animals, WHEN HABIT IS LOST,
ONLY POSSESSION iS LOST and NOT OWNESHIP.
Art. 561. One who recovers, according to law, possession
unjustly lost, shall be deemed for all purposes which may
redound to his benefit, to have enjoyed it without
interruption. (466)
It is the right to enjoy the property of another temporarily,
including both the jus utendi (right to use) and the jus
fruendi (right to the fruits).
Requisites of a usfruct
Q: What are the requisites of a usufruct?
A:
1. Essential- right to enjoy the property of another; and
2. Accidental- obligation of preserving the form and
substance of such property. It is accidental because
the title constituting the usufruct or the law may
provide otherwise, as in the case of abnormal
usufruct.

Q: The general rule is that one who recovers possession Essential characteristics
unjustly lost, shall be deemed for all purposes which may
redound to his benefit, to have enjoyed it without Q: What are the requisites of a usufruct?
interruption. What are the requisites for this principle to
apply? A:
a. Real right;
A: b. Temporary in nature;
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
c. Purpose is for the enjoyment of the use and fruits of pure or conditional, the period, whether it be in favor of one
the property. or several.

REAL RIGHT Q: What is the concurrent obligation of the usufructuary?

It may be constituted on real or personal property, A: It is to preserve the form and substance of the property.
consumable or not, tangible or not, the ownership of which is
vested in another and such right may be enforced against the Q: What do you mean by preservation?
whole world.
A: It means that the property must be used according to its
According to Dean Pineda, it must be duly annotated at the purpose.
back of the title to bind third persons. Otherwise, an innocent
purchaser may acquire the usufruct to the prejudice of the Q: Is a usufruct in favor of an alien or foreigner valid?
usufructuary. Yet, according to Dean Villanueva, it is a real
right whether registered or not. A: Yes. It is valid because title is not vested in the
usufructuary.
It is a real right because it attaches to the property itself and
may be imposed upon whoever subsequently own the right Q: How is usufruct created?
with respect to the property.
A: It is created by:
Besides a usufruct may be constituted either on immovable
and movable properties and as such not all property are 1. Law;
registered. 2. Last will; or
3. Prescription
For convenience it must be registered.
Q: What are the other duties of the usufructuary?
Temporary duration
A:
Even if constituted during the entire life of the usufructuary,
it remains temporary because there is a limit to its life. 1. Duty to make ordinary repairs; and
2. Duty to pay for annual charges, taxes, liens on fruits
Purpose of property during usufruct.

The purpose of a usufruct is to enjoy the benefits and derive Q: Who is a naked owner?
advantages from the object as a consequence of normal use.
A: He is a remainder man, what remains is his right to abuse,
Q: What are the natural characteristics of usufruct? subject to the rights of usufructuary.

A: Those which even if not stipulated are deemed attached to USUFRUCT DISTINGUISHED
the usufruct because they are provided by law. Example: The
obligation to preserve absent any stipulation to the contrary. Since usufruct and its incidents and conditions are so
Once there is a stipulation such stipulation is an incidental. complicated, Filipinos are more inclined in entering into less
complicated contracts such as lease, commodatum, and
Q: What is the rationale of the obligation to preserve the easements.
substance and form?
Q: Distinguish usufruct from ownership?
A:
1. Prevent extraordinary exploitation; A: Ownership has for its attributed the right to enjoy (jus
2. Prevent abuse of property; and utendi, jus fruendi, and jus abutendi), then right to dispose
3. Prevent impairment (jus diponendi) and the right to vindicate (jus vindicandi). On
the other hand, usufruct is limited to jus utendi and jus
Accidental characteristics fruendi.

Q: What are the accidental characteristics of usufruct? Q: Distinguish usufruct from the right to collect?

A: Those which may be present or absent depending on the A: A usufruct granting the right to collect would entail that
stipulation of the parties. Example: Whether the usufruct is what the usufructuary may collect belongs to him but the
usufructuary does not own the property. The mere right to

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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
collect may or may not mean that the collector owns what a real right; a personal right. It
was collected. is real only when it
is over a real
Usufruct and Easement property and the
same is registered
USUFRUCT EASEMENT or when the lease
Application Applies both real Applies only to is more than 1
and personal; real property; year.
Extent All uses and fruits Limited to a Manner of May be created by Generally only by
can be enjoyed; particular use; creation law, contracts, last contracts and by
Constitution It may be Can be consituted will and way of exception
constituted on the on a land held in testament, or by law as in the
land burdened by usufruct; prescription; case of an implied
easement but it new lease or tacita
cant be reconduction (Art.
constituted in an 1670) and Forced
easement; lease (Art. 448);
Extinguishement Usually Not extinguished Execution of Usufructuary has Lessee has no duty
extinguished by by the death of repairs the duty to make to pay for repairs
the death of the the owner of the ordinary repairs; except urgent
usufructuary or 50 dominant estate. repairs;
years if juridical Payment of taxes Usufruct pays for Lessee does not
person; annual charges, pay the taxes on
taxes, and liens on the property
Usufruct and commodatum the fruits of the unless agreed
property during upon.
USUFRUCT COMMODATUM the lifetime of the
Cause May be gratuitous Always gratuitous; usufruct.
or onerous;
Application Applies both to Applies only to Art. 563. Usufruct is constituted by law, by the will of
real and personal personal; private persons expressed in acts inter vivos or in a last will
property; and testament, and by prescription. (468)
Nature Always a real Merely a personal
Creation of Usufruct
right; right;
Creation Must always be Bailor need not be
Q: What are the different classifications of usufruct as to
constituted by the owner as long as
creation?
owner; he has the legal
right to possess
A:
the object;
Extent Can be constituted Only non-
1. Legal usufruct- created by law;
on consumables consumables
and non- except when it is
As in Articles 1189 and 1190 of the NCC where there is a
consumables; only for exhibition.
suspensive condition or a resolutory condition over an
Rights Usufructuary has Bailee has no obligation and there are improvements on the object
rights over the rights over the courtesy of the debtor, he will have the rights of a
fruits. fruits unless usufructuary.
otherwise
provided. 2. Conventional- will of the parties; and

Usufruct and Lease a. By acts inter vivos such as contracts;

b. In a last will and testament (mortis causa);
USUFRUCT LEASE
Creator Constituted only It need not be 3. Mixed usufruct or prescription- acquired by a third
by owner or created by the person thru continuous use of usufruct for period
authorized owner; required by law.
representative;
Nature of right Usufrcut is always Lease is generally
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Art. 564. Usufruct may be constituted on the whole or a part
of the fruits of the thing, in favor of one more persons,
simultaneously or successively, and in every case from or to
a certain day, purely or conditionally. It may also be
constituted on a right, provided it is not strictly personal or
intransmissible. (469)
Kinds of usufruct
Q: What are the different kinds of usufruct?
A:
1. As to comprehensiveness over the fruits;
a. Total-if it covers all the fruits derived; and
b. Partial-if it covers only particular fruits generated.
Example: In a coconut planattion only the leaves are
covered to be used in the manufucture of brook
sticks not including the fruits.
2. As to number of beneficiaries;
a. Simple- one usufructuary; and
b. Multiple-if there are several usufructuaries which
may be:
3. As to the time of enjoymnet of the usufruct;
a. Simultaneously-at the same time; and
b. Successive- one after another.
In case usufructaury is created by donation, Art. 756 should
be applied:
Art. 756-All donees must be alive or at least be conceived at
the time of the perfection of the donation.
If the usufruct is testamentary Rules on Fidei Commisary
substitution under Art. 863 and Art. 869 should be applied:
Art. 863- Both transferor and transferee must be alive or at
least be conceived at the time of the death of the testator.
There is only one degree of relationship between the
transferor and the transferee.
Art. 869- applies where the testator leaves to a person the
whole or par of the inheritance and to another the usufruct. If
he gives the usufruct to various persons successively Art. 863
will apply.
4. As to effectivity or extinguishment or term or
condition;
a. Pure-if there is no term or condition; and
___________________________
b. With a term- if there is a period which may be either
suspensive (from a certain day) or resolutory (up to a
certain day).
c. Conditional- if it is subject to a condition which may
be either suspensive (from the beginning of a certain
event) or resolutory (until the happpening of a
certain event).
5. As to subject matter;
a. Over things-if it involves tangible property;
b. Over rights- if it involves intangible property as rights
are, but the rights must not be strictly personal or
intransmissible; thus the right to receive support
cannot be the subject matter of usufruct.
A usufruct constituted over a right is of the same nature as
the very right burdened by it.
6. As to preservation of the substance and form of the
object; and
a. Normal- obligation to preserve exists;
b. Abnormal-no obligation to preserve because of the
nature of the thing.
7. As to its extent over the object.
a. Universal; and
b. Particular
Q: Can the naked owner dispose of the property held under
usufruct?
A: Yes, provided that there is the consent of the naked owner
because the stipulation in the contract prevails.
Q: What form must be followed in constituting a usufruct?
A:
GR: No form is required. An oral usufruct may even be
constituted.
XPN:
1. A usufruct over real property must be registered to
bind their persons;
2. If usufruct is created by sale of for any valuable
consideration, the Statutes of Fraud always applies
in case of Real property is involved. If personal
property is involved the Statute of fraud applies
where the value is P500 or higher and in case the
agreement is not to be performed in one year;
3. A usufruct by donation or by will must apply with the
formalities of a donation or will.
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Art. 565. The rights and obligations of the usufructuary shall
be those provided in the title constituting the usufruct; in
default of such title, or in case it is deficient, the provisions
contained in the two following Chapters shall be observed.
(470)
Q: What primarily governs the rights and obligations of the
usufructuary?
A: The title constituting the usufruct, in default the provisions
of the NCC.
Q: What if there is conflict between what is provided in the
will and the codal provisions regarding the right granted to a
usufruct?
A: The former will prevail unless the disposition contradicts
the mandatory provisions of the NCC.
The rights and obligations are those provided in contract or
provision of the will.
In cases of hidden treasure, the usufructuary is considered as
a stranger. The treasure therefore is not considered as a fruit.
Hence, it is the naked owner who is entitled to the share. If
the usufructuary found it, he shall be entitled to share (as a
stranger). However, if a third person found it, the naked
owner is entitled to share.
CHAPTER 2
RIGHTS OF THE USUFRUCTUARY
Q: In general, what are the rights of a usufructuary?
A:
1. Rights over the fruits;
2. Rights of possession and enjoyment of the property;
3. Lease of the property;
4. Sale or alteration of usufructuary rights.
Art. 566. The usufructuary shall be entitled to all the
natural, industrial and civil fruits of the property in usufruct.
With respect to hidden treasure which may be found on the
land or tenement, he shall be considered a stranger. (471)
Usufructuary is entitled or has a right to all kinds of fruits:
natural, industrial, civil. Yet, he cannot extract from the
property anything which is not classified as fruits under the
law.
___________________________
HIDDEN TREASURE
GR: In cases of hidden treasure, he is considered as a
stranger.
XPN: If he is the finder.
DIVIDENDS
Whether in cash or stock are considered civil fruits which
belong to the usufructuary, taking into consideration that a
stock dividend and cash dividend can only be declared out of
the profits of a corporation.
Q: If dividends are declared from capital stocks are they
fruits that are covered by a usufruct?
A: No, it is prohibited by law to declare dividends from capital
stocks. Besides, such declaration is not an earning because it
is not declared out of the profits of a corporation.
Art. 567. Natural or industrial fruits growing at the time the
usufruct begins, belong to the usufructuary.
Those growing at the time the usufruct terminates, belong
to the owner.
In the preceding cases, the usufructuary, at the beginning of
the usufruct, has no obligation to refund to the owner any
expenses incurred; but the owner shall be obliged to
reimburse at the termination of the usufruct, from the
proceeds of the growing fruits, the ordinary expenses of
cultivation, for seed, and other similar expenses incurred by
the usufructuary.
The provisions of this article shall not prejudice the rights of
third persons, acquired either at the beginning or at the
termination of the usufruct. (472)
Rule on ownership of natural and industrial fruits
Generally, whateevr is gathered or collected belongs to the
usufructuary during the usufruct.
Rights of usufructuary to pending natural and industrial
fruits
1. Fruits growing at the beginning of usufruct- belong to
the usufructuary, who is not bound to refund to the
owner the expenses of cultivation and production as the
owner has already taken into consideration value of
fruits in fixing the price/ cause for the usufruct.
2. Fruits growing to the termination of usufruct- belong to
the owner but he is bound to reimburse the usufructuary
the ordinary cultivation expenses (including those
pertaining to seeds) (Art. 545) out of the fruits received
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
(Art. 443). In other words, the reimbursement shall be
taken from the proceeds of the growing fruits.
Note: If near the time of termination fruits are already
mature and ready for gathering, but were not gathered due
to the malice and bad faith of the owner before the usufruct
end, the fruits nevertheless shall pertain to the usufructuary
by applying the general principles of fairness.
Right of Innocent Third persons
Thus, thus Article shall not prejudice the rights of third
persons, acquired either at the beginning or at the
termination of the usufruct.
If trees, plants, or crops had been planted by innocent third
person or possessor in good faith, the expenses and charges
incurred thereof shall be pro-rated between the planter and
the usufructuary (Art. 545, Dean Pineda). However, it seems
that this article should apply (Art. 443, Sen. Tolentino).
Note: According to Judge Quiambao, Art. 545 is used to
determine who are entitled to the fruits and Art 443 is use to
determine who should be obliged to pay the charges.
Art. 568. If the usufructuary has leased the lands or
tenements given in usufruct, and the usufruct should expire
before the termination of the lease, he or his heirs and
successors shall receive only the proportionate share of the
rent that must be paid by the lessee. (473)
Q: May the usufructuary lease the property held by him?
A: Usufructuary may lease only if the title constituting the
usufruct does not prohibit the usufructuary from leasing.
If he leases the property he has the:
a. Right to choose the tenant; and
b. Right to eject the tenant if he violates the lease
contract.
Q: What if the period of lease I longer than the period of
usufruct?
A: If the period of lease is longer than the period of usufruct,
lease will terminate upon termination of usufruct.
Accordingly, the usufructuary cannot lease or alienate
beyond such period. Also, usufructuary has the choice as to
who will rent the property, consent is only required if it is
longer than the usufruct.
Note: If the period of lease is longer than the period of
usufruct, the usufructuary of his heirs and successors shall
receive only the rents up to the end of the usufruct while the
rentals for the rest of the duration of the lease shall pertain
to the owner.
___________________________
Art. 569. Civil fruits are deemed to accrue daily, and belong
to the usufructuary in proportion to the time the usufruct
may last. (474)
Q: State the rule on civil fruits.
A: Civil fruits are deemed to accrue daily; they belong to the
usufructuary in proportion to the time the usufruct may last.
Art. 570. Whenever a usufruct is constituted on the right to
receive a rent or periodical pension, whether in money or in
fruits, or in the interest on bonds or securities payable to
bearer, each payment due shall be considered as the
proceeds or fruits of such right.
Whenever it consists in the enjoyment of benefits accruing
from a participation in any industrial or commercial
enterprise, the date of the distribution of which is not fixed,
such benefits shall have the same character.
In either case they shall be distributed as civil fruits, and
shall be applied in the manner prescribed in the preceding
article. (475)
Usufruct on the right to receive rents or periodical pension
Each payment shall be considered as the proceeds or the
fruits of such right.
This rule applies whether payment is in money, in fruits, in
interest on bonds or securities payable to bearer.
Usufruct in the enjoyment of benefits accruing from a
participation in any industrial or commercial enterprise
Each payment shall be considered as the proceeds or the
fruits of such right.
The benefits shall be considered as civil fruits and shall be
distributed.
A problem by Justice Paras
A gave B in usufruct the profits of a certain factory for 10
years, all profits during that time must go to B. Suppose,
however B died at the end of 5 years, and the following were
the profits of the factory:
nd
2 year-30 M
rd
3 year-50 M
th
8 year-10 M
th
10 year- 20 M
Q: How should the profits be divided?
A: It is unfair to give the heir of the usufructuary 80 M for the
nd rd
2 and 3 year profits and only 30 million to the naked
owner. If this were so, we would be applying the rule for
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
industrial or natural fruits, not civil fruits. It is indeed unfair
because business is expected to have ist ups and downs.
Thus, considering that the usufruct was supposed to last for
10 years (though it lasted only for 5 years), it is fairer to give
half of the total profits to the heirs of the usufructaury and to
the naked owner.
The rule is so similar if no profits were realized during the first
5 years and was only 7, and the profits came only in the next
5 years.
The rules are subject to stipulation of the parties.
Art. 571. The usufructuary shall have the right to enjoy any
increase which the thing in usufruct may acquire through
accession, the servitudes established in its favor, and, in
general, all the benefits inherent therein. (479)
Extensions of the property in usufruct
The right of the usufructuary over the property extends to
the increase which the thing in usufruct may acquire through
accession, in the absence of contrary stipulation.
Note however that the naked owner still owns the accession
as well as the servitudes established in favor of the property
when it is the dominant estate like easement of a right of
way.
GR: Usufructuary shall enjoy all benefits inherent in the
property as the essence of usufruct is the full enjoyment of
jus fruendi (fruits), jus utendi (use).
Art. 572. The usufructuary may personally enjoy the thing in
usufruct, lease it to another, or alienate his right of usufruct,
even by a gratuitous title; but all the contracts he may enter
into as such usufructuary shall terminate upon the
expiration of the usufruct, saving leases of rural lands, which
shall be considered as subsisting during the agricultural
year. (480)
Limitations to usufructuary rights
Q: What are the limitations to usufructuary rights?
A:
1. Cannot sell, pledge or mortgage because he is not the
owner (the thing/ prop itself)
2. Cannot sell future crops (growing crops at the
termination of the usufruct belong to the owner)
3. Cannot, without consent of owner, lease the thing for a
period longer than the term of usufruct
NOTE: The usufructuary may possess and enjoy the thing in
usufruct, either
___________________________
a. Personally, or
b. Through another, unless there is a contrary
stipulation.
Q: Who should bring action against a usurper, the naked
owner or the usufructuary?
A: Naked owner can bring action against usurper of the
property; it is him who has the cause of action. The
usufructuary can only do so if authorized.
Aspects of usufruct
Q: What are the 2 aspects of usufruct?
A:
1. With respect to the thing in usufruct- He may lease it
(Art. 568) even without the owners consent (Art. 580)
but not being the owner; he cannot alinate, pledge or
mortgage the thing itself.
2. With respect to the right of usufruct- he, being the owner
of the right itself, may alienate, pledge or mortgage it,
even by gratuitous title (Art. 572).
Q: How should the lease last?
A: General Rule: the lease executed by the usufructuary
should terminate at the end of the usufruct or earlier.
Except: in case of rural lands where the lease continues for
the remainder of the Agricultural year.
Q: What happens when the period is beyond the period of
usufruct?
A: The usufructuary may enter into a contract where the
period of lease is beyond the period. However, once the
usufruct terminates, the lease should terminate too. At the
option of the owner.
Q: Can you compel the naked owner to respect the lease
upon termination?
A: No, however, if the lease was registered or annotated in
the title of the prperty this makes the lease a real right. The
owner of the property must respect the right. The rent after
the termination accrues to the owner.
Alienation of rights of usufructuary
Q: What is the nature of the usufructuary rights?
A: It is treated as property rights. Separate from the property
to which it is attached. Absolutely owned by the usufruct may
dispose encumber the usufruct so long as it is not on the
property itself.
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Q: What happens when the property itself is sold?
A: Sale is void since the seller is not the owner. Since there is
a violation of the usufruct any securities may be cancelled
absent any contrary stipulation.
NOTE: There should be a stipulation of the parties allowing
the usufructuary to alienate such property then the same is
valid.
Q: Can you constitute a usufruct on an encumbered or
mortgaged land?
A: Yes, this is because the mortgage remains inactive until the
bebt is not paid and the mortgage is not for the purpose of
limiting the use of the fruits.
NOTE: Alienation of the usufructuary rights does not involve
the property itself. When the usufruct terminates, the
transferee has no more right to the property. In addition,
usufructuary may also be liable to the naked owner for the
damage caused by the transferee (Art. 590).
Art. 573. Whenever the usufruct includes things which,
without being consumed, gradually deteriorate through
wear and tear, the usufructuary shall have the right to make
use thereof in accordance with the purpose for which they
are intended, and shall not be obliged to return them at the
termination of the usufruct except in their condition at that
time; but he shall be obliged to indemnify the owner for any
deterioration they may have suffered by reason of his fraud
or negligence. (481)
Usufruct over non-consumable things which gradually
deteriorate
The usufruct has the right to use in accordance withb the
purpose they intended.
a. He is not obliged to return them at the termination
except in their condition at the time;
b. The usufructuary is not responsible for deterioration due
to wear and tear nor is he required to make any repairs
to restore it;
c. He is liable for damage suffered by the thing by reason of
his fraud or negligence although such liability may be set-
off against the improvements he may have made on the
property;
d. He does not answer for the deterioration due to
fortuitous event;
NOTE: But if deterioration is due to fraud or negligence, the
usfructuary is liable.
Art. 574. Whenever the usufruct includes things which
cannot be used without being consumed, the usufructuary
shall have the right to make use of them under the
obligation of paying their appraised value at the termination
___________________________
of the usufruct, if they were appraised when delivered. In
case they were not appraised, he shall have the right to
return at the same quantity and quality, or pay their current
price at the time the usufruct ceases. (482)
Q: What is a consumable property?
A: Those which could not be enjoyed without being
consumed, hence could not be returned because form and
substance are not preserved.
The usufructuary must pay appraised vaule if they were
appraised when delivered.
If there is no appraisal:
a. he must return the same quantity and quality or
b. pay current price.
This is considered as Imperfect/ Abnormal Usufruct.
Quasi-usufruct is akin to a mutuum or simple loan.
Q: Can money be the subject of usufruct?
A: Yes, money can be the subject. The subject is equivalent
sum or value not the thing itself.
Q: What will govern the parties?
A:
1. Title governing it/ stipulations
2. Provision of NCC
Q: In case of conflict, what shall govern?
A: In case of conflict, the stipulations will prevail, the
provision will only apply in default of provision or stipulations
are contrary to law.
Art. 575. The usufructuary of fruit-bearing trees and shrubs
may make use of the dead trunks, and even of those cut off
or uprooted by accident, under the obligation to replace
them with new plants. (483a)
Special usufruct on fruit-bearing trees and shrub
The usufructuary may use dead trunks and those cut-off or
uprooted by accident, which include force majeure and fo
Because of the obligation to preserve, the usufructuary
cannot cut off the trees. However, if the purpose of the
usufruct as appearing in the title establishing it is precisely to
make use of its branches and trunks of the trees for special
purposes, he may cut them off subject to the obligation of
replacing them with young trees or new plants.
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This article cannot apply when the trees are not fruit bearing
and if the object of the usufruct is not limited to the fruits of
such trees.
Q: What are shrubs?
A: They are woody perennial plants smaller than trees usually
having permanent stems branching from the ground.
Art. 576. If in consequence of a calamity or extraordinary
event, the trees or shrubs shall have disappeared in such
considerable number that it would not be possible or it
would be too burdensome to replace them, the
usufructuary may leave the dead, fallen or uprooted trunks
at the disposal of the owner, and demand that the latter
remove them and clear the land. (484a)
If the object of the replacemet is only slightly burdensome,
the usufructuary is obliged to make the replacement.
Art. 577. The usufructuary of woodland may enjoy all the
benefits which it may produce according to its nature.
If the woodland is a copse or consists of timber for building,
the usufructuary may do such ordinary cutting or felling as
the owner was in the habit of doing, and in default of this,
he may do so in accordance with the custom of the place, as
to the manner, amount and season.
In any case the felling or cutting of trees shall be made in
such manner as not to prejudice the preservation of the
land.
In nurseries, the usufructuary may make the necessary
thinnings in order that the remaining trees may properly
grow.
With the exception of the provisions of the preceding
paragraphs, the usufructuary cannot cut down trees unless
it be to restore or improve some of the things in usufruct,
and in such case shall first inform the owner of the necessity
for the work. (485)
Inoperative Usufruct
Because of thee Regalian Doctrine, only the State may
constitute a usufruct over the woodlands, provided that there
was a law allowing such usufruct (Declaration of re-
classification).
A timber license is generally required if one desires to gather
forest products.
Art. 578. The usufructuary of an action to recover real
property or a real right, or any movable property, has the
right to bring the action and to oblige the owner thereof to
give him the authority for this purpose and to furnish him
whatever proof he may have. If in consequence of the
___________________________
enforcement of the action he acquires the thing claimed, the
usufruct shall be limited to the fruits, the dominion
remaining with the owner. (486)
Impractical Usufruct
The Philippine legal system is replete with other modes of
prosecuting cases in behalf of the real party in interest.
If the usufructuary recovered the property he does not
become the owner thereof. Ownership still belongs to the
naked owner. Usufruct regains only his usufruct over the
property. The usufructuary therefore is entitled to fruits and
usufruct over the property.
The action may be prosecuted in the name of the
usufructuary because he is a proper party in interest in case
the action is for ejectment as the only issue in such case is
possession. There no need to include the name of the naked
owner. Nonetheless, in all other cases, he may file in the
name of naked owner or usufructuary. Hence, an action to
recover land may be filed by usufructuary with authority of
naked owner
Usufruct of an action to recover property
The usufructuary has the right to bring the action and oblige
the owner to give him authority to file action for the purpose
and furnish him proof (Special power of attorney).
Art. 579. The usufructuary may make on the property held
in usufruct such useful improvements or expenses for mere
pleasure as he may deem proper, provided he does not alter
its form or substance; but he shall have no right to be
indemnified therefor. He may, however, remove such
improvements, should it be possible to do so without
damage to the property. (487)
Art. 580. The usufructuary may set off the improvements he
may have made on the property against any damage to the
same. (488)
Rules concerning constructions and improvement
1. Unless there is an express prohibition, the usufructuary
may construct and make improvements on the property
as he may deem proper.
2. Limitation: provided he does not alter its form and
substance;
3. Removal: usufructuary may generally remove provided
no injury is made on the principal even against the will of
the naked owner. If he has chosen not to remove he
cannot be compelled to remove them; and
4. Indemnity: No right to be indemnified if the
improvements cannot be removed. He may however set-
off the value of the improvements against the amount of
damage he had caused to the property.
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Improvements may be registered for the protection of the
usufructuary
If the right of the usufructuary to remove improvements is
not registered, an innocent purchaser for value of the
property is not bound to respect the right.
___________________________
If the improvements could be removed without damage to
property, parties may agree to settle the difference.
Yet, if Value of damage exceeds value of improvement,
difference will be paid by usufructuary as indemnity.

Note: Registration shall be done in the registration Formula

proceedings of the land in usufruct and not independently.
1. Damage>value of the improvements= usufructuary
USEFUL OF LUXURIOUS IMPROVEMENTS liable for the difference; and
2. Damage<value of the improvement=difference
Q: Is the usufructuary entitled to any indemnification? accrues to the owner absent any contrary
stipulation.
A: No, he is not entitled to indemnity for expenses he had
incurred in making improvement. He may remove Rules on expenses
improvements, even against the will of owner, if it will cause
no damage. Yet, if the improvements cannot be removed NECESSARY EXTRA-ORDINARY USEFUL &
without causing damage to the property, usufructuary is not EXPENSES EXPENSES LUXURIOUS
entitled to refund. EXPENSES
For the normal Expenses due to The usufructuary
Right to set-off improvements wear and tear of fortuitous events can make them
the property and and accidents, not provided he does
This presupposes that the improvements have increased the those, that are normal wear and not alter the form
value of the property and damage to the same was caused indispensable for tear and necessary of the property
thru the fault of the usufructuary. its preservation for the things
preservation
Q: Does the law require notice to the owner? Borne by the With right of He cannot seel
usufructuary reimbursement reimbursement
A: Yes, it is necessary that the usufructuary should inform the without right of from the owner
owner of his desire to set off. reimbursement but he can remove
them if no damage
Also, he must establish that the improvements have will be done on
introduced increased in the value of the property. the property, or
he can avail of the
Q: What are the requisites for set-off? set-off provision
of Art. 590. But if
A: he refuses to
1. Improvements were made; remove, he cannot
2. Intention to remove; and be compelled.
3. Damage to property
Q: Who has the option to remove or set-off?

Q: What if the damage exceeds the value of the
improvements?
A: In such case, the usufructuary shall be liable for the
difference as indemnity.
But if the improvements are more than the damage, there is
no refund as to the excess.
Damage to property
If Value of improvement is greater than damage caused, the
excess will not be refunded to the usufructuary, in the
absence of contrary stipulation (owner not required to pay
the amount). There is no indemnity for improvements.
A: It belongs to the usufructuary
Art. 581. The owner of property the usufruct of which is held
by another, may alienate it, but he cannot alter its form or
substance, or do anything thereon which may be prejudicial
to the usufructuary. (489)
Q: The rule provides that the naked owner is not precluded
from selling the property because right to dispose rests in
him. However, there are restrictions, what are these?
A:
1. Cannot alter or change the form or substance
2. Do anything which will prejudice the usufructuary
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________

When usufruct binds third persons A: No, the usufructuary cannot exclude the co-owners, except
the co-owner who gave him the usufruct. The usufruct also
Q: When will the usufruct bind third persons? covers only the portio of the fruits accruing to the co-owner
who constituted the usufruct.
A:
1. When duly registered on the title or is known to a third Classification of rights of the usufructuary
person, the latter is put to notice and he is bound to
respect it As to the things and its As to the usufruct As to advances and
2. Under the law on succession, the law provides that fruits itself damages
a. To receive the a. To alienate or a. To be reimbursed
usufruct imposed and placed as burdens on devises or fruits of the mortgage the for indispensable
legacies must be respected until they are legally property in right of usufruct extra-ordinary
extinguished. usufruct and half except parental repairs made by
of the hidden usufruct him in an amount
treasure he b. In a usufruct to equal to the
Q: May the naked owner construct anything on the property accidentally finds recover property increase in value
subject of usufruct? on the property or a real right to which the
b. To enjoy any bring the action property may
A: Yes, the naked owner also has the right to construct any increase which and to oblige the have acquired by
the thing in owner thereof to reason of such
works, make new improvements or plantings provided that usufruct may give him the repairs
the substance of the property is not altered and the acquire thru proper authority b. To be reimbursed
usufructuary is not prejudiced. succession and the for taxes on the
c. To personally necessary proof capital advanced
enjoy the thing in c. In a usufruct of by him
Art. 582. The usufructuary of a part of a thing held in usufruct or lease part of a c. To be
common shall exercise all the rights pertaining to the owner it to another common indemnified for
thereof with respect to the administration and the d. To make on the property, to damages caused
collection of fruits or interest. Should the co-ownership property in exercise all the to him by the
usufruct such rights pertaining naked owner
cease by reason of the division of the thing held in common, improvements or to the co-owner
the usufruct of the part allotted to the co-owner shall expenses he may with respect to
belong to the usufructuary. (490) deem proper and the
to remove the administration
improvements and to the
A Co- owner usufructs his property: provided no collection of
damage is caused fruits or interests
a. Will assume all rights of said owner with respect to the property from the
to: e. To set-off the property
improvements he
1. administration and may have made
2. collection of fruits or interests on the property
b. If property has been partitioned, the against any
usufructuary shall continue on that part of the damaage to the
same (Art.580)
property which was allotted to the co-owner f. To retain the
who constituted the usufruct thing until he is
c. Does not need the consent of other co-owners reimbursed for
when he intends to put up usufruct on his share advances for
extra-ordinary
expenses and
Q: May a usufructuary participate in partition of property? taxes on the
capital
A: Usufructuary has no right to participate in the partition of
property owned in common, he is not creditor or assignee Classification of the obligations of the usufructuary

Q: May a usufructuary sell the property? Before the During the Upon termination
usufruct usufruct of usufruct
A: No, the usufructuary has no authority to sell or alienate commences
any real right over the undivided property because such is an Arts. 583-587 Arts. 588-602 Arts. 603-612
exercise of act of ownership, unless authorized by all the co-
owners.

Q: Is the use of a co-owned property subject of a usufruct

exclusively reserved to the usufructuary where the usufruct
is constituted by only one of the co-owners?

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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
CHAPTER 3
OBLIGATIONS OF THE USUFRUCTUARY
Art. 583. The usufructuary, before entering upon the
enjoyment of the property, is obliged:
(1) To make, after notice to the owner or his legitimate
representative, an inventory of all the property, which shall
contain an appraisal of the movables and a description of
the condition of the immovables;
(2) To give security, binding himself to fulfill the obligations
imposed upon him in accordance with this Chapter. (491)
Q: What are the obligations of the usufructuary?
A:
1. Inventory of all the property (movables and immovables)
containing their appraised value and description of
condition immovables (so that the form of which it
should be returned is determined)
2. Give security as an assurance that he will fulfill all his
obligation as usufructuary
NOTE: The requirements are not conditions precedent, but is
necessary before the usufructuary enters upon the
possession and enjoyment of property
Q: What is the purpose of these requirements?
A: To ensure the return of the property in the condition that
it was given as usufruct, except in cases of:
a. Quasi-usufruct
b. Abnormal usufruct where the appraisal will be
important for determining the liability of the
usufructuary
Q: What is the requirement if the property is movable?
A: An obligation on the part of the usufructuary to make an
appraisal of the value of the movables
Q: How about for immovables?
A: To make a technical description of its condition and an
appraisal of the movables therein.
Inventory
Q: What are the requirements for the inventory?
A:
1. The owner or representative must be previously notified.
The purpose is to enable him to correct errors in the
inventory if he desires. His absence is a waiver for
corrections.
2. Condition of immovables must be described
3. Movables must be appraised
___________________________
Q: Who shall shoulder expenses for preparation of the
inventory?
A: Expenses for preparation of the inventory is borne by
usufructuary, but may agree on some other arrangement
Q: When is Inventory is not required:
A: Inventory is not allowed when:
1. Waived
2. No one will be injured
3. Usufruct over rights
4. Agreement of both parties
Q: What is the effect of the absence of owner during the
inventory?
A: Absence of owner during inventory will not invalidate the
usufruct.
Q: What if there are mistakes in inventory and owner is
absent, is it a waiver?
A: No, you can still make the corrections, but must prove that
there is error, not refuted from making corrections
Q: What should be the form of the inventory?
A: No particular form of inventory is provided for by law,
except when real property wherein the inventory must be in
public instrument.
Q: What is the effect of failure to make inventory?
A: Failure to make inventory will create the presumption that
the usufruct is receiving the thing in good condition.
Security
Q: What can become a security?
A: Pledge, mortgage of property; personal, surety bond, cash
money
NOTE: The requirements are not conditions precedent, but is
necessary before the usufructuary enters upon the
possession and enjoyment of property-Sanchez Roman.
But according to Manresa, the usufruct is extinguished by
failure to give security.
Q: When is the giving of security not required?
A:
1. Express stipulation that no security will be required
2. Naked owner, after establishment of usufruct which
requires giving of security waives such requirement
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
3. Nobody will be injured for lack of security
4. Donor has reserved to himself the usufructuary of
property donated it is an act of ingratitude for the done
to require the donor to put up a security of bond
5. In case of parental usufructuary
6. Usufruct is based on caucion juratoria
Q: What is the purpose of security?
A: To ensure faithful compliance.
Q: What should be the form of security?
A: No form is required by law, as long as it is sufficient.
Parental usufruct
Parental usufruct still exists but only apples to enjoyment and
use of minor childs property.
But for income in fruits, apply rule in guardianship Art 225,
226 FC in relation to Art 235.
Q: What are the consequences of failure to give security
when it is required?
A:
1. Naked owner may demand that immovables be placed
under his administration
2. Demand that the movables be sold ; public bond,
instruments of credit payable to order or to bearer be
converted into registered certificates or deposited in a
bank or public institution and that the capital or sums in
cash and proceeds of movable property be invested in
safe securities
3. Usufructuary is entitled to legal interests (or net profits)
on the proceeds of the sale of movables and on the
proceeds of property placed under the management of
naked owner
4. Naked owner may retain the property in usufruct if he so
desired with the obligation to turn over to the
usufructuary the income or fruits of property after
deducting the expenses of administration
5. Usufructuary cannot collect credits that had matured
6. Cannot enter into the possession of property and cannot
manage the property
7. Usufruct is not extinguished by failure to give security. In
the meantime, he cannot enter into the possession of
property in usufruct
Art. 584. The provisions of No. 2 of the preceding article
shall not apply to the donor who has reserved the usufruct
of the property donated, or to the parents who are
usufructuaries of their children's property, except when the
parents contract a second marriage. (492a)
___________________________
When donor reserved to himself the usufruct of the property
donated, it is an act of ingratitude for the donee to require
the donor to put up a security bond.
Art. 585. The usufructuary, whatever may be the title of the
usufruct, may be excused from the obligation of making an
inventory or of giving security, when no one will be injured
thereby. (493)
Art. 586. Should the usufructuary fail to give security in the
cases in which he is bound to give it, the owner may
demand that the immovables be placed under
administration, that the movables be sold, that the public
bonds, instruments of credit payable to order or to bearer
be converted into registered certificates or deposited in a
bank or public institution, and that the capital or sums in
cash and the proceeds of the sale of the movable property
be invested in safe securities.
The interest on the proceeds of the sale of the movables
and that on public securities and bonds, and the proceeds of
the property placed under administration, shall belong to
the usufructuary.
Furthermore, the owner may, if he so prefers, until the
usufructuary gives security or is excused from so doing,
retain in his possession the property in usufruct as
administrator, subject to the obligation to deliver to the
usufructuary the net proceeds thereof, after deducting the
sums which may be agreed upon or judicially allowed him
for such administration. (494)
Consequence of failure to give security when it is required
Q: What is the effect of failure to give security when it is
required?
A: The owner may demand that the:
a. Immovables be placed under his administration
b. Movables be sold
c. Public bonds, instruments of creditt payable to order
or to bearer be converted into registered certificates
or deposited in a bank or public institution
d. Capital or sums in cash and the proceeds of the sale
of the movable property be invested in safe
securities
NOTE: The interest on the proceeds of the sale of the
movables and that on public securities and bonds, and the
proceeds of the property placed under administration shall
belong to the usufructuary.
Q: In the above mentioned instances, may the naked owner
retain the property?
A: Yes, if he so desires with the obligatiob to turn-over to the
usufructuary the income of fruits of the property after
deducting the expenses of administration.
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NOTE: The usufructuary cannot collect credits that had
matured. He cannot enter into possessoon of the property
and he cannot mortgage it.
Art. 587. If the usufructuary who has not given security
claims, by virtue of a promise under oath, the delivery of the
furniture necessary for his use, and that he and his family be
allowed to live in a house included in the usufruct, the court
may grant this petition, after due consideration of the facts
of the case.
The same rule shall be observed with respect to
implements, tools and other movable property necessary
for an industry or vocation in which he is engaged.
If the owner does not wish that certain articles be sold
because of their artistic worth or because they have a
sentimental value, he may demand their delivery to him
upon his giving security for the payment of the legal interest
on their appraised value. (495)
Promise under oath or CAUSION JURATORIA
Q: What is causion juratoria?
A: A sworn undertaking by the uusfructuary to take good care
of property in usufruct and return it upon termination. It
serves as a substitute for the security or bond.
Q: What are the requisites for a causion juratoria?
A:
1. Proper court petition
2. Necessity for the delivery of the furniture, implements,
tools or house included in the usufruct
3. Approval of the court
4. Sworn promise
5. He cannot alienate or lease the property for this will
mean that he does not need them.
To enter into the possession of the property, usufructuary
must file a petition in court seeking the delivery of property,
including accessories, which are necessary for its normal
enjoyment. Note that the court may or may not grant
petition. This is based on necessity.
Art. 587 will not apply when the usufructuary is exempted or
excused from giving security. It applies only if he is required
but he cannot afford.
Q: In case of causion juratoria, may the usufruct lease the
property?
A: He cannot lease the property, because it means he does
not need it.
___________________________
NOTE: Delivery of property does not amount to waiver to ask
for security afterwards , it is a potestative right, he can still
demand for a security
If owner does not want to sell certain artistic article with
sentimental value, he may demand their delivery to him,
subject to his giving a security bond for the payment of legal
interest based on appraised value.
Art. 588. After the security has been given by the
usufructuary, he shall have a right to all the proceeds and
benefits from the day on which, in accordance with the title
constituting the usufruct, he should have commenced to
receive them. (496)
When appropriate security has been given, usufructuary shall
have a right to all the proceeds and benefits as of the date he
was supposed to have received them. This retroacts to the
day when usufructuary should have commenced receiving
them
Art. 589. The usufructuary shall take care of the things
given in usufruct as a good father of a family. (497)
Required Diligence
Q: What degree of diligence is required from the
usufructuary?
A: The usufructuary has the obligation to take care of things
with diligence of a good father.
Q: Will bad use extinguish usufruct?
A: Although care of good father of family is required, still a
usufruct is not extinguished by bad use. Bad use only entitles
the owner to demand administration without prejudice to the
usufruct.
Q: What are the obligations of the usufructuary to fulfill the
requirement of diligence of good father?
A:
1. Make ordinary repairs
2. To notify naked owner of the urgency of extra-ordinary
repairs or of any acts which may prove detrimental to
ownership
NOTE: The usufructuary shall answer for the damages caused
by the fault of the person substituting him should he alienate
or lease the usufruct.
Q: What if the property is damaged?
A: Damage to property caused through the negligence of
property is demandable right away. The naked owner need
not wait for the termination of the usufruct to bring the
proper action.
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Q: What is herd?
A: Number of animals kept, feeding or travelling together; if
one kind (flock)
Q: What is livestock?
A: Mammalian animals and poultry, the avian animals which
are domesticated and kept or raised in backyards or farms.
Art. 590. A usufructuary who alienates or leases his right of
usufruct shall answer for any damage which the things in
usufruct may suffer through the fault or negligence of the
person who substitutes him. (498)
Usufructuary is liable for damages caused by the lessee;
because he has the choice as to who will rent.
Thus, while the substitute answers to the usufructuary, the
usufructuary is liable to the naked owner.
Art. 591. If the usufruct be constituted on a flock or herd of
livestock, the usufructuary shall be obliged to replace with
the young thereof the animals that die each year from
natural causes, or are lost due to the rapacity of beasts of
prey.
If the animals on which the usufruct is constituted should all
perish, without the fault of the usufructuary, on account of
some contagious disease or any other uncommon event, the
usufructuary shall fulfill his obligation by delivering to the
owner the remains which may have been saved from the
misfortune.
Should the herd or flock perish in part, also by accident and
without the fault of the usufructuary, the usufruct shall
continue on the part saved.
Should the usufruct be on sterile animals, it shall be
considered, with respect to its effects, as though constituted
on fungible things. (499a)
Replacement of animals
Q: When is there an obligation to replace exist?
A:
1. If some animals diefrom natural causes
2. If some are lost due to rapacity of beasts of prey
Q: Why is there a duty to replace notwithstanding the fact
that such occurrence is a fortuitous event?
A: Because such loss is more or less expected and is natural
Q: To whom the remains of dead animals pertain?
___________________________
A: To the usufructuary
Q: What will consist of the replacement?
A: Replacement will consist of young of these animals. If
young animals are more than that to be replaced, excess will
pertain to usufructuary. If there is no young and animals died,
there is no liability.
Hence if 15 cattle died but only 3 were produced, only 3 must
be replaced.
If 15 died and 15 were produced but only 12 remains because
3 were sold, the usufructuary must still replace the 3, even in
cash, otherwise, he could by his overt act defeat the law.
Although the law says each year, this does not mean that
the computation must be done yearly.
Q: When is there no obligation to make replacement?
A: If all animals had perished:
1. If there is a total loss of animals because of contagious
diseases or other common event. Provided, that the
usufructuary has no fault
2. If there is partial loss under the same conditions
Since no obligations to replace, it follows even all should
perish, the remains must be delivered to the owner.
The same rule applies in case of partial loss. The remains not
the remainder of the flock must be given to the naked owner.
Q: What if the partial loss is because of the usufructuarys
fault, does the usufruct continue on the remainder?
A: Manresa says yes because bad use or abuse does not
extinguish the usufruct without prejudice however to the
right of the naked owner to demand administration by him.
Q: What is the rule in case of sterile animals?
A: Since there are no young which could be produced and
used as replacement, the rule on usufruct over fungibles
applies.
Art. 592. The usufructuary is obliged to make the ordinary
repairs needed by the thing given in usufruct.
By ordinary repairs are understood such as are required by
the wear and tear due to the natural use of the thing and
are indispensable for its preservation. Should the
usufructuary fail to make them after demand by the owner,
the latter may make them at the expense of the
usufructuary. (500)
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Ordinary repairs
Q: What are ordinary repairs?
A: Repairs needed due to wear and tear suffered by the
property thru natural use and indispensable for preservation
(both).
Q: What are the requisites for it to be considered as
ordinary repairs?
A:
a. They are required by normal or natural use
b. They are needed for preservation
c. They must have occurred during the usufruct
d. They must have happened with or without the fault of
the usufructuary.
Q: During what period is the usufructuary liable?
A: The usufructuary is liable only for ordinary repairs during
the usufruct, thus, those existing at the time the usufruct is
entered into pertains to the owner.
Q: What if the usufructuary refuses to do the repairs?
A: If upon demand on the usufructuary, he did not or refuse
to do repairs, the owner can do such and charge the expenses
against the usufructuary.
Q: May the usufructuary be exempted from doing repairs?
A:
a. if he is not at fault- yes, but he must surrender the fruits
received
b. If he was at fault- no, he is liable in addition to cost of
repairs for damages
NOTE: If the property deteriorates even if repairs was made,
the owner is burdened, because usufructuary has already
done his job
Art. 593. Extraordinary repairs shall be at the expense of the
owner. The usufructuary is obliged to notify the owner
when the need for such repairs is urgent. (501)
Art. 594. If the owner should make the extraordinary
repairs, he shall have a right to demand of the usufructuary
the legal interest on the amount expended for the time that
the usufruct lasts.
Should he not make them when they are indispensable for
the preservation of the thing, the usufructuary may make
them; but he shall have a right to demand of the owner, at
the termination of the usufruct, the increase in value which
the immovable may have acquired by reason of the repairs.
(502a)
___________________________
Extra-ordinary repairs
Q: What are extra-ordinary repairs?
A: Repairs needed to restore to its good condition a thing or
property which has deteriorated by reason of exceptional
circumstances whether or nor they are essential to its
preservation or those caused by the natural use of the
property but not necessary for its preservation.
Q: Who shall shoulder theses expenses?
A: At the expense of the owner. But it is the duty of the
usufructuary to notify the owner of such needed repairs
when the same is urgent. If not urgent, there is no duty to
make the notification
Q: Can the usufructuary compel the owner to make extra-
ordinary repairs?
A: The usufructuary cannot compel the owner to make
extraordinary repairs. Also, the owner cannot compel the
usufructuary to make repairs, if owner did not execute except
when the provision of title constituting the usufruct so
provided.
Kinds of Extra-ordinary repairs
Q: What are the different kinds of Extra-ordinary repairs?
A:
1. Due/ caused by natural use of thing and not needed for
preservation
The law does not require the naked owner to make the
repairs. If he does not want to, it is all right. What is
important is that if they are made, the expenses must be
borne by the naked owner.
2. Due to exceptional circumstances but are needed for
preservation
The naked owner cannot be compelled to make the repairs.
But the usufructuary is allowed to make them after due
notice and failure of the naked owner to repair, with the right
to get the increase in value and the right of retention until
paid upon termination.
3. Exceptional circumstances but not needed for
preservation
The naked owner cannot be compelled to make the repairs
because they are not necessary for preservation
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Right of naked owner if he makes the
Extra-ordinary repairs
If the naked owner incurred expenses, he can charge the
usufructuary with legal interest (6%) on the amount for the
duration of the usufruct.
Formula:
Increase in value= value after improvement minus value
before improvement
If the usufructuary made the extraordinary repairs which are
indispensable for the preservation of property; he may
demand from the owner the resulting increase in the value of
the property by reason of repairs done
Art. 595. The owner may construct any works and make any
improvements of which the immovable in usufruct is
susceptible, or make new plantings thereon if it be rural,
provided that such acts do not cause a diminution in the
value of the usufruct or prejudice the right of the
usufructuary. (503)
The owner can construct any works and improvements or
introduce new plantings, even if usufructuary is in possession.
However, this is subject to some restrictions.
Q: What are the restrictions to the above rule?
A:
1. Value of the usufruct shall not diminish
2. Right of the usufruct shall not be prejudiced
Q: Is the usufructuary obliged to pay legal interest?
A: Usufructuary not obliged to pay legal interest because they
are voluntary acts of owner
Art. 596. The payment of annual charges and taxes and of
those considered as a lien on the fruits, shall be at the
expense of the usufructuary for all the time that the
usufruct lasts. (504)
Art. 597. The taxes which, during the usufruct, may be
imposed directly on the capital, shall be at the expense of
the owner.
If the latter has paid them, the usufructuary shall pay him
the proper interest on the sums which may have been paid
in that character; and, if the said sums have been advanced
by the usufructuary, he shall recover the amount thereof at
the termination of the usufruct. (505)
Usufructuary shall be liable for the annual charges and taxes
on fruits.
___________________________
Examples of charges:
a. extraordinary repairs,
b. expenses for gathering/ cultivation
Q: Who shall pay for the real property tax?
A: Real property tax, being a burden upon the capital, should
be paid by the owner of the land and not the usufructuary.
Rules when taxes are paid by the parties
Q: What are the rules when taxes are paid by the parties?
A:
1. If paid by the naked owner- the usufructuary shall pay
him the proper interest (legal interest or otherwise) on
the sums which may have been paid in that character.
The reason is that usufructuary is still enjoying the
property and has been benefited.
2. If advanced by the usufructuary- he shall recover the
amount thereof at the time termination of the usufruct
provided they are voluntary if usufructuary was forced to
pay, reimbursement should be made immediately.
Q: What are the rights of the usufructuary who advanced
the taxes?
A:
1. Be reimbursed or recover the amount without legal
interest
2. Entitled to retention until paid
Art. 598. If the usufruct be constituted on the whole of a
patrimony, and if at the time of its constitution the owner
has debts, the provisions of Articles 758 and 759 relating to
donations shall be applied, both with respect to the
maintenance of the usufruct and to the obligation of the
usufructuary to pay such debts.
The same rule shall be applied in case the owner is obliged,
at the time the usufruct is constituted, to make periodical
payments, even if there should be no known capital. (506)
Q: What if the usufruct is constituted on the whole of a
patrimony but the naked owner has indebtedness?
A:
1. If there is any agreement whereby the usufructuary will
pay the owners indebtedness, then the usufructuary is
bound by his prestation (Art 758).
If in agreement no amount is fixed, the liability of the
usufructuary can not exceed the value of usufruct (must
cover past credit/ debt) Art 758.
2. If there is no agreement to pay for the obligation of the
owner, usufructuary will be liable to pay for the
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obligation of owner, if usufructuary was made or
constituted in fraud of creditors.
Q: When can the transaction be considered as in fraud of
creditors?
A: If at the time of execution, the owner did not reserve
sufficient property with which to pay his debts prior to the
usufruct.
NOTE: This Article applies only to Universal Usufruct. If
particular, naked owner has still other properties available,
not subject to usufruct.
Q: When does a usufructuary have to pay for the debt of the
naked owner?
A: It depends. A distinction has to be made whether
stipulation exists or not.
If theres a stipulation, Art. 758 shall govern:
Art. 758. When the donation imposes upon the donee the
obligation to pay the debts of the donor, if the clause does
not contain any declaration to the contrary, the former is
understood to be liable to pay only the debts which appear
to have been previously contracted. In no case shall the
donee be responsible for the debts exceeding the value of
the property donated, unless a contrary intention clearly
appears. (642a)
If theres no stipulation, Art. 759 shall govern:
Art. 759. There being no stipulation regarding the payment
of debts, the donee shall be responsible therefor only when
the donation has been made in fraud of creditors.
Q: When does Art. 598 apply?
A:
1. If the usufruct is universal one (constituting on the
whole property);
2. If the naked owner:
a. Has debts; or
b. Is obliged to make periodical payments (whether or
not there be known capital).
According to Dean Pineda, the second paragraph does not
require that the usufruct is constituted or the whole
patrimony. It does not speak of universal usufruct if the
naked owner did not reserve sufficient property for payments
of debts.
___________________________
Donation of everything except the usufruct
Art. 598 particularly apply if a person donates everything but
reserves to him the usufruct.
Art. 750. The donations may comprehend all the present
property of the donor, or part thereof, provided he reserves,
in full ownership or in usufruct, sufficient means for the
support of himself, and of all relatives who, at the time of
the acceptance of the donation, are by law entitled to be
supported by the donor. Without such reservation, the
donation shall be reduced in petition of any person affected.
(634a)
Art. 599. The usufructuary may claim any matured credits
which form a part of the usufruct if he has given or gives the
proper security. If he has been excused from giving security
or has been able to give it, or if that given is not sufficient,
he shall need the authorization of the owner, or of the court
in default thereof, to collect such credits.
The usufructuary who has given security may use the capital
he has collected in any manner he may deem proper. The
usufructuary who has not given security shall invest the said
capital at interest upon agreement with the owner; in
default of such agreement, with judicial authorization; and,
in every case, with security sufficient to preserve the
integrity of the capital in usufruct. (507)
Collection Matured Credits
Q: Can the usufructuary collect demandable credits?
A: Usufructuary is allowed to collect demandable credits
which form part of the usufruct like rentals due but he could
not claim such credit if he had not given prior security or
bond.
Accordingly, if he usufructuary has given security, collection
can be done without the consent of the naked owner or the
approval of the court. But if the usufructuary has not given
security, or when he is excused, or when there is only caucion
juratoria, collection and investment can only be done with
the consent or authorization of the naked owner and in
default, the approval of the court.
Ownership of the credit collected
If credit is collected, ownership belongs to the naked owner,
because matured credit contemplated by the article is that
which forms part of the usufruct. But it is subject to the use
of the usufructuary. Thus, the latter will only enjoy the
interest or the civil fruits.
Q: What is the effect of failure to collect due to
usufructuarys fault or negligence?
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A: The usufructuary shall be liable if the credit that has
matured (due and demandable) is not collected through his
fault or negligence. However, if the cause if the failure was
the lack of consent of the owner or approval of the court he is
not liable, provided the lack or delay of approval was not
attributable to him.
Q: May the usufructuary invest the money?
A: Yes but if theres no security there must be an
authorization from the owner or from the court.
Art. 600. The usufructuary of a mortgaged immovable shall
not be obliged to pay the debt for the security of which the
mortgage was constituted.
___________________________
the usufructuary may mortgage the usufruct but not the
property.
Pledge of a movable
Art. 600 also applies, by analogy, to pledge of a movable,
provided that the movable is in the usufructuarys possession
since the law on pledge provides that it is essential that the
thing pledges be placed in the possession of the creditor or a
third person by common agreement.
Q: What are the requisites before a usufruct over a pledged
movable may be constituted?
A:

Should the immovable be attached or sold judicially for the 1. Consent of the pledgee and the pledgor must be
payment of the debt, the owner shall be liable to the reached because there could be a conflict where the
usufructuary for whatever the latter may lose by reason nature of the usufruct entitles the usufructuary to
thereof. (509) the fruits and the nature of the pledge where the
pledgee is entitled to the fruits; and
Usufruct of a mortgaged immovable 2. That the usufructuary is not barred from taking
possession of the usufruct.
Q: Is the usufructuary of a mortgaged immovable obliged to
pay the debt for the security of which the mortgage was Art. 601. The usufructuary shall be obliged to notify the
constituted? owner of any act of a third person, of which he may have
knowledge, that may be prejudicial to the rights of
A: No. ownership, and he shall be liable should he not do so, for
damages, as if they had been caused through his own fault.
Q: What is the liability of the naked owner if the immovable (511)
is attached or is judicially sold?
Notification by the Effec of lack of notice
A: If the immovable be attached or sold judicially for the usufructuary required
payment of the debt, he owner shall be liable to the If a third party commits acts The usufructuary is liable as if
usufrheuctuary for whatever the latter may lose or suffer by prejudicial to the rights of damage has been cause
reason thereof. the ownership in so far as through his own fault;
the rights of the naked
Q: How is the liability of the naked owner extinguished? owner is affected;
If urgent repairs are needed The usufructuary cannot
A: The naked owner may: (Art. 593); make the exraordinary
repairs (Art. 5944);
a. Constitute a usufruct over an equivalent estate; If an inventory is to be made The inventory may go on, but
b. Payment of a periodical pension; and (Art. 583). the naked owner may later
c. In any other similar way. point out the discrepancy or
omissions in the inventory.
Q: What is the rule if the usufruct is a universal one?

A: If the usufruct is universal and some of which are

Art. 602. The expenses, costs and liabilities in suits brought
mortgaged, the more applicable article is Art. 598 with with regard to the usufruct shall be borne by the
reference to Art. 7598 and 759.
usufructuary. (512)

Q: When does this article apply?

Mortgaging of the usufructuary rights
A: This article particularly applies only when the usufructuary
Since the right is distinct from the thing in usufruct, it may be
has lost the case in a usufruct of an action to recover.
mortgaged by the usufructuary not the naked owner. In such
a case, it is the usufructuary who should pay his debt. Hence
It is applicable only to litigations involving the usufruct
directly affecting the rights of the usufructuary.
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If litigation involves the defense of the naked ownership it is
chargeable to the naked owner.
Costs and Expenses
Expenses, costs, liabilities in suits with regard to the usufruct
shall be borne by the usufructuary.
If the litigation is won:
1. Right to Usufruct: usufructuary bears costs; and
2. Object held in usufruct: costs borne by naked
owner.
Q: What is the remedy or indemnity in case of foreclosure of
the property?
A: The naked owner shall give equivalent usufruct to what
was foreclosed or pay for the duration remaining plus
damages.
CHAPTER 4
EXTINGUISHMENT OF USUFRUCT
Art. 603. Usufruct is extinguished:
(1) By the death of the usufructuary, unless a contrary
intention clearly appears;
(2) By the expiration of the period for which it was
constituted, or by the fulfillment of any resolutory condition
provided in the title creating the usufruct;
(3) By merger of the usufruct and ownership in the same
person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting
the usufruct;
(7) By prescription. (513a)
Extinguishment of usufruct
Death of the usufructuary, unless contrary intention appears
GR: Deathextinguishes usufruct.
XPN:
a. In the case of multiple uusufruct-death of the last
surviving usufructuary ends the usufruct;
b. If there is a period fixed basded pn a number of
years to elapse before a person would reach a
certain age; and
XPN: Usufruct constituted as upport
___________________________
c. In case contrary intention clearly appears (expressly
or impliedly).
This is true even if a resolutory condition or period has been
stipulated and the usufructuary dies before the expiration of
the period or the fulfillmnet of the condition.
Q: What is the rationale behind such rule?
A: Usufruct is constituted essentially as a lifetim benefit for
the usufructuary or in consideration of his person.
Q: What is the effect of death of the naked owner?
A: Death of the naked owner does not terminate the
usufruct. His rights are transmitted to the heirs.
Consequently, the heirs shall respect the usufruct if there is a
clear agreement.
Expiration of the period or fulffillment of the resolutory
condition
Q: What is a period?
A: It is a future event which must necessarily come although
it may not be known when.
Q: What is a condition?
A: It is an uncertain event which may or may not happen.
Note: This article applies when the period agreed upon for
the lifetime of the usufruct has already expired or when the
resolutory condition imposed already fulfilled.
Renunciation of the usufructuary
Q: Who makes the renunciation?
A: it is made by the usufructuary since he is the one who has
the right he is the only when capable of waiving such right.
Q: In what form should the renunciation be made?
A: Since it partakes of a condonation or donation, it can be
made expressly or impliedly, as long as it is done clearly.
If it is done expressly, it must comply with the forms of
donation.
Q: Is the renunciation an assignment of right?
A: No. It is really abandonment by the usufructuary of his
right and does not require the consent of the naked owner
but is subject to the rights of the creditors. The creditors can
rescind such renuniation to the extent of their cerdits if done
in fraud of creditors.
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Q: Does non-use amount to renunciation? Termination of right of the person constituting the usufruct

A: No. If the owner constituted a usufruct on his property, which he

Q: What is the effect of such renunciation?
A: It has the effect of the automatic reversion of usufruct to
the owner.
believes he owns and later, a person with superior right over
the property had established his claim and had lawfully
evicted the owner, the usufruct terminates. Accordingly, the
usufructuary cannot have a better right/ right higher than
that of the source.

Q: What are the requisites for a valid waiver? Prescription

A: For waiver to be valid: Q: What is prescription?

a. Waiving party must actually have the right he is A: It refers to acquisitive prescription. It is the use by a third
renouncing; person which ripened into ownership and not the non-use by
b. Full capacity to make the waiver; the usufructuary which extinguishes the usufruct by
c. Waiver is clear and unequivocal; and prescription.
d. Not contrary to law, public order, public policy,
rd
morals or good customs or prejudicial to a 3 person Note: Mere non use of usufruct does not terminate the
with a right recognized by law. usufruct, unless it also constitutes renunciation

Q: Can there be partial waiver? Causes of extinguishment of the usufruct

A: Yes. But if the usufruct is universal, waiver must be as a Q:What are the other causes of extinguishment of the
whole. usufruct?

Merger of the usufruct and ownership in the same person A:

Q: How does merger take place? 1. Annulment;

2. Rescission;
A: This takes place when the rights of usufruct and ownership 3. Mutual withdrawal;
are aqcuired by one and the same person (Art. 1275) who 4. Legal causes like a minor attaining the age of
becomes the absolute owner thereof either through sale or majority in the case of parental usufruct; and
succession. 5. Expropriation

Total loss of the thing Art. 604. If the thing given in usufruct should be lost only in
part, the right shall continue on the remaining part. (514)
The loss must be total. If the loss is only partial, the usufruct
continues with the remaining part. Art. 605. Usufruct cannot be constituted in favor of a town,
corporation, or association for more than fifty years. If it has
Q: What are the instances of total loss? been constituted, and before the expiration of such period
the town is abandoned, or the corporation or association is
A: dissolved, the usufruct shall be extinguished by reason
thereof. (515a)
1. out of commerce of man;
2. physical total destruction; and Q: What is the rule regarding usufruct in favor of juridical
3. Expropriation (legal loss). entities?

Q: Under what instance is partial loss deemed total?
A: In case of partial loss, the usufruct continues provided that
benefit may still be obtained (art 604) but if the purpose will
not be obtained it will be deemed as total loss.
A: Lifetime of usufruct cannot exceed 50 yrs. to conform with
the ordinary maximum lifetime of corporations under
corporation law.
NOTE: If town is abandoned or corporation is dissolved
before the expiration of the term, usufruct is terminated and
reverts to the owner resulting in latters full ownership

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Testamentary trust is not restricted by Art 605
A testamentary trust for the establishment of a high school in
a town with the governor of the province as the trustee and
the towns people as the beneficiary is not restricted by
Art.605. said trust can continue to serve purpose of the
testamentary disposition of the testator.
Art. 606. A usufruct granted for the time that may elapse
before a third person attains a certain age, shall subsist for
the number of years specified, even if the third person
should die before the period expires, unless such usufruct
has been expressly granted only in consideration of the
existence of such person. (516)
Usufruct until a person reaches a certain age
rd
G.R.: If a usufruct is constituted to last until a 3 person
rd
reaches a certain age, the usufruct will subsist until such 3
person has reached the age specified, whether or not the
person survives the period
XPN: Expressly granted only in consideration of the existence
of such person; usufruct terminates upon death of the said
person
Example: If Andres gave Boni the land in usufruct to support
Shine. Shines death extinguishes the usufructuary
Art. 607. If the usufruct is constituted on immovable
property of which a building forms part, and the latter
should be destroyed in any manner whatsoever, the
usufructuary shall have a right to make use of the land and
the materials.
The same rule shall be applied if the usufruct is constituted
on a building only and the same should be destroyed. But in
such a case, if the owner should wish to construct another
building, he shall have a right to occupy the land and to
make use of the materials, being obliged to pay to the
usufructuary, during the continuance of the usufruct, the
interest upon the sum equivalent to the value of the land
and of the materials. (517)
Usufruct is Constituted on Immovable property of which a
building forms part and latter should be destroyed
1. Usufruct is both over the land and building
a. Usufruct on the land continues because land is not lost,
but on building terminated (assumption of total loss)
b. Usufructuary can use the land and materials saved from
building
c. If owner wants to rebuild the bldg, but usufructuary
refuses, the latter prevails because he has the usufruct
over the land until period expired
___________________________
2. Usufruct is constituted on building only
a. Usufruct on building extinguished (totally destroyed)
b. Usufructuary can make use of materials saved
c. Owner has preferential right to use the land and the
materials with obligation to pay the usufructuary during
the continuance of the usufructuary, the interest upon
the sum equivalent to the value of the land and materials
d. The naked owner has the preferential right to use the
land. Thus, if the naked owner would like to rebuild, but
the usufructuary refuses, the naked owner will prevail.
e. The law states that if the owner would like to construct
another building or to restore, the naked owner shall
have the right to occupy the land and to make use of the
material, being obliged to pay to the usufructuary, during
the continuance (remaining part of the period) of the
usufruct, the interest (legal interest) upon sum
equivalent to the value of the land and materials.
NOTE: The interest is based on:
a. The materials because the usufruct is on the building
b. The land because although there was no usufruct on
the land, still the use of the building includes the use
of the land
Use of land is mere concession or incidental to the
usufructuary.
Person at fault must indemnify
If the destruction is caused by naked owner, he shall be liable
for cost of bldg. on the other hand, if the destruction was due
to the fault of usufructuary, the latter shall be liable for:
Formula:
Amount of building + damages (includes moral and exemplary
damages)
Art. 608. If the usufructuary shares with the owner the
insurance of the tenement given in usufruct, the former
shall, in case of loss, continue in the enjoyment of the new
building, should one be constructed, or shall receive the
interest on the insurance indemnity if the owner does not
wish to rebuild.
Should the usufructuary have refused to contribute to the
insurance, the owner insuring the tenement alone, the
latter shall receive the full amount of the insurance
indemnity in case of loss, saving always the right granted to
the usufructuary in the preceding article. (518a)
Insurance of the tenement held in usufruct
Q: What are the 2 circumstances provided under this
article?
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A:
1. Both the naked owner and the usufructuary share in the
payment of the insurance premium
2. Only the naked owner pays because the usufructuary
refused to share
This article does not contemplate the following
circumstances:
1. Where the usufructuary failed (not refused) to contribute
because of ignorance or lack of notice
2. Where the usufructuary alone pays the insurance
premium
Proportion in sharing of contribution
Manresa: the amount respectively given is immaterial as long
as both shared in paying, the first par. Of Art. 608 will appy,
except if there is a stipulation by parties
Pineda: 50-50 sharing. Otherwise, there should have been
proportional sharing specifically provided by law. Also, this is
to avoid unjust enrichment on the part of any of the parties.
Paras: A better solution would be to make the sharing of the
premiums proporionate to the respective insurable interest
of the naked owner and the usufructuary
Rules:
1. If both naked owner and the usufructuary share in the
premium and the property is destroyed
a. If the owner constructs or rebuilds
b. If the owner does not construct
2. If the naked owner alone pays and the usufructuary
refused to share and the property is destroyed
a. The naked owner gets the whole indemnity with the
obligation to give the interest thereon to the
usufructuary
b. Apply Art. 607-saving the right granted to the
usufructuary in the preceding article
3. If the naked owner alone pays but there is no refusal but
mere failure
Here the effect is the same as if there was sharing, but the
usufructuary must reimburse the naked owner his share in
the premium
4. If the usufructuary alone pays the insurance premium
Q: What is the measure of a insuranble interest?
A: Under the Insurance Code, the measure of a insuranble
interest in a property is the extent which the indured might
be damnnified by the loss or injury.
___________________________
J.Paras commentary: The rules shall be as follows
1. The insurance indenify should go to the usufructuary
alone, with no obligation to share with the naked owner
2. The usufruct continues both on the land and building for
the remaining period unless the usufruct is constituted
on the building alone
3. The usufructuary has no obligation to construct a new
building or to build
Q: Can the usufructuary be compelled to build?
A: No because the insurance company indemnity will be
much less than the cost of the building
Art. 609. Should the thing in usufruct be expropriated for
public use, the owner shall be obliged either to replace it
with another thing of the same value and of similar
conditions, or to pay the usufructuary the legal interest on
the amount of the indemnity for the whole period of the
usufruct. If the owner chooses the latter alternative, he shall
give security for the payment of the interest. (519)
Rules in cases of expropriation
1. If naked owner alone received the indemnity
a. To replace with equivalent value
b. To pay to the usufructuary legal interest on the just
compensation received
2. If both received separate indemnities
In such case, each owns the indemnity given to him in
proportion to their interest in the property
3. If usufructuary alone received indemnity
Paras: He must give it to the naked owner and compel the
latter to return either the interest or to replace the property.
He may even deduct the interest himself.
Art. 610. A usufruct is not extinguished by bad use of the
thing in usufruct; but if the abuse should cause considerable
injury to the owner, the latter may demand that the thing
be delivered to him, binding himself to pay annually to the
usufructuary the net proceeds of the same, after deducting
the expenses and the compensation which may be allowed
him for its administration. (520)
Remedy in case abuses of usufructuary causing considerable
injury to owner
1. If due to the abuse or abuses of the usufructuary on the
property in usufruct, the owner suffers considerable
damages or injuries, he may compel the usufructuary to
deliver the thing to him to be able to maintain it and
protect it from destruction or loss
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2. If due to the abuse or abuses of the usufructuary on the testator leaves to a person
property in usufruct, but the owner does not suffer the whole or part of the
considerable damages or injuries, usufruct continues and inheritance and to another
the naked owner cannot demand administration by the usufruct. If he leaves the
himself. usufruct to various persons
successively, Art. 863 shall
Q: What if the usufructuary denies the owners claim of apply.
considerable injury?
Q: If the usufruct is constituted in favor of 14 usufructuaries,
A: If usufructuary denies the owners claim of considerable and 3 of them die, will 3/14 of the usufruct accrue to naked
injury, court shall determine the issue of preponderance of owner or the heirs of the usufructuaries or will it accrue to
evidence the 11 surviving usufructuaries?

Q: Again, what is the effect of bad use of property by A: They will accrue in favor of the 11 surviving usufructuaries
usufructuary? since usufruct contines up to the death of the last survivor.

A: Bad use is not cause for extinguishment but gives the
owner the right to demand the delivery and administration of
property in usufruct when abuse is considerably prejudicial to
the owner.
NOTE: Owner cannot alienate right to usufruct while property
is under administration. During administration for and in
behalf, the owner is not authorized to sell, alienate because
this right pertains to usufructuary.
Art. 612. Upon the termination of the usufruct, the thing in
usufruct shall be delivered to the owner, without prejudice
to the right of retention pertaining to the usufructuary or his
heirs for taxes and extraordinary expenses which should be
reimbursed. After the delivery has been made, the security
or mortgage shall be cancelled. (522a)
Rights and obligations at the termination of usufruct

It is advisable that the usufructuary should register his USUFRUCTUARY NAKED OWNER
usufructuary rights with proper Registry of Property, if it is a 1. Must return the 1. Must cancel the secutiry
rd rd
really to warn 3 persons of existence. Any 3 person who property to naked owner or mortgage provided
deals on the property is bound to respect the recorded that the usufructuary has
usufruct. comolied with all his
obligation
Art. 611. A usufruct constituted in favor of several persons 2. To retain the property 2. Make reimbursement to
living at the time of its constitution shall not be until he is reimbursed the usufructuary for
extinguished until death of the last survivor. (521) for the taxes on the expenses in proper cases
capital which he
Rules in case of multiple usufruct advanced and
indispensable extra-
If simultaneous If successive ordinary repair or
All donees must be alive or at If created by donation: expenses
least conceived at the time of Art.756-all donees must be 3. To remove the 3. Must in case of rural
constitution alive or at least be conceived improvement without land, respect leased
at the time of the perfection causing damage or set made by usufructuary,
Death of the last survivor of donation them off against until the end of the
among others terminates the damages he has caused agricultural year
usufruct
If usufruct is testamentary,
the Rules on Fidei Commisary
substitution under Art. 863
and Art. 869 shall be applied:
Art. 863- both the transferor
and transferee must be alive
or at least be conceived at
the time of death of the
testator

Art. 869- applies where the

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Title VII. - EASEMENTS OF SERVITUDES USUFRUCT EASEMENT

Application Applies both real Applies only to
CHAPTER 1 and personal; real property;
EASEMENTS IN GENERAL Possession Involves a Easement is a non-
usufruct-a right of possessory right
SECTION 1. - Different Kinds of Easements possession in an over an
immovable or immovable.
Art. 613. An easement or servitude is an encumbrance mosvable.
imposed upon an immovable for the benefit of another Extent All uses and fruits Limited to a
immovable belonging to a different owner. can be enjoyed; particular use;
The immovable in favor of which the easement is Constitution It may be Can be consituted
established is called the dominant estate; that which is constituted on the on a land held in
subject thereto, the servient estate. (530) land burdened by usufruct;
easement but it
Q: What is easement? cant be
constituted in an
A: An encumbrance imposed upon an immovable for the easement;
benefit of another immovable belonging to a different owner Extinguishement Usually Not extinguished
or for the benefit of a community or one or more persons to extinguished by by the death of
whom the encumbered estate does not blong by virtue of the death of the the owner of the
which the owner is obliged to abstain from doing so or to usufructuary or 50 dominant estate.
permit a certain thing to be done on his estate. years if juridical
person;
Elements of easements
Q: What are real easements?
Q: What are the elements of easements?
A: They are those which are established for the benefit of an
A: immovable.
1. An encumbrance or burden, a restriction on the
enjoyment of the property Q: What is a dominant estate?
2. Imposed on an immovable
3. Encumbrance is for the benefit of another immovable A:It refers to the immovable for which the easement was
property of for the benefit of a community or of one or established and the one who enjoys the benefits of the
more persons easement.
4. Property must be owned by another owner. Easement is
never imposed by the owner of his own property Q: What is a servient estate?

Easement v. servitude A: It is the property subject of an easment, the property

Q: Distinguish between easement and servitude.
A: Easement is an english law/common law term while
servitude is the name used in civil law countries.
which provides for the benifits.
Art. 614. Servitudes may also be established for the benefit
of a community, or of one or more persons to whom the
encumbered estate does not belong. (531)

Servitude is the broader term. It may be real or personal.
Easement is always real.
It is said that easement refers to the right enjoyed and
servitude, the burden imposed upon another.
Usufruct v. easement
Q: Distinguish between usufruct and easement.
A:
Q: What is a personal easement?
A: They are those established for the benefit of persons
without a dominant immovable estate. It cannot be
transmitted as oppose to real easement. This is also called as
easement in gross.
Characteristics of easement
Q: What are the different characteristics of easement?
A:

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1. A real right but which will affect third persons only a. Real
when registered; b. Perosnal
2. Enjoyed over another immovable never on ones
property; 2. According to the manner they are exercised;
3. Involves 2 neighboring estates (in case of real
easement), the dominant estate to which a right a. Continuous
belongs and the servient estate upon which an b. Discontinuous
obligation rests;
4. Inseparable from the estate to which it is attached 3. According to indication of existence;
and thus, cannot be alienated independently of the
estate; a. Apparent
5. Indivisible for it is not affected by the division of the b. Non-apparent
estate between 2 or more persons;
6. A right limited by the needs of the dominant owner 4. According to purpose of the easement or nature of
or estate without possession; limitation;
7. It cannot consist in the doing of an act unless the act
is accesssory in relation to a real easement; and a. Positive
8. A limitation on the servient owners rights of b. Negative
ownership for the benefit of the dominant owner.
5. According to right given; and
Note: Easement is established only on immovable-which
must be understood in its common and not in its legal sense a. Partial use
under Art. 415. It covers only lands, buildings and roads b. Getting of specific materials
(Manresa).
6. According to source or origin
Art. 615. Easements may be continuous or discontinuous,
apparent or nonapparent. a. Legal
b. Voluntary
Continuous easements are those the use of which is or may c. Mixed
be incessant, without the intervention of any act of man.
According to party given the benefit
Discontinuous easements are those which are used at
intervals and depend upon the acts of man. 1. Real-constituted for the benefit of another immovable
belonging to a different owner;
Apparent easements are those which are made known and 2. Personal-established for the benefit of one or more
are continually kept in view by external signs that reveal the persons or of a community without a dominant
use and enjoyment of the same. immovable estate.

Nonapparent easements are those which show no external
indication of their existence. (532)
Art. 616. Easements are also positive or negative.
A positive easement is one which imposes upon the owner
of the servient estate the obligation of allowing something
to be done or of doing it himself, and a negative easement,
that which prohibits the owner of the servient estate from
doing something which he could lawfully do if the easement
did not exist. (533)
CLASSIFICATION OF EASEMENTS
Q: What are the different classification of easements?
According to the manner they are exercised
1. Continuous
For an easment to be continuous, it does not require that
they be incessant, it is enough that the use may be incessant.
2. Discontinuous
While both continuous and discontinuous easement, as
easement may be continuous (permanent), their exercise
may be continuous or discontinuous. Example: Right of way.
Q: Is the easement of light and view continuous or a
discontinuous easement?

A: A: While it is true that to construct a window is an act of man,

still once constructed, the easement remains. Hence, we can
1. According to party given the benefit; say that the easement of light and view is a continuous not a
disconinuous easement. For indeed while all easements

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require human actions for establishment, not all require
human action for exercise (Manresa).
According to indication of existence
1. Apparent- the mark or sign need not be seen, but should
be susceptible of being seen. The easement of aqueduct
is considered always apparent whether or not it can be
seen.
2. Non-apparent
According to purpose of the easement or nature of
limitation
___________________________
If it is the dominant estate that is divided between two or
more persons, each of them may use the easement in its
entirety, without changing the place of its use, or making it
more burdensome in any other way. (535)
Q: Is there such thing as judicial easement?
A: None. Courts can only declare its existence or non-
existence.
Art. 619. Easements are established either by law or by the
will of the owners. The former are called legal and the latter
voluntary easements. (536)

1. Positive

Q: What are the obligations of the owner of the servient
estate in positive easements?
A:
a. To allow something to be done in his property;
b. To do it himself.
They are also termed as servitudes of sufferance or intrusion
or service because something is done on the servient estate.
SECTION 2. - Modes of Acquiring Easements
Art. 620. Continuous and apparent easements are acquired
either by virtue of a title or by prescription of ten years.
(537a)
Q: How are easements acquired?
A:

2. Negative- here the owner of the servient estate is 1. If continous and apparent they may be acquired by
prohibited to do something which he could lawfully do title or by prescription;
were it not for the easement. 2. If continuous and non-apparent only by title
3. If discontinuous and apparent only by title
They are also called as servitudes of absention or limitation 4. If discontinuous and non-apparent only by title.
or restriction.
Q: What is meant by title?
According to right given
A: Title does not necessarily mean document. It mean any
1. Partial use juridical act to create the enumbrance. Like law, donation or
2. Getting of specific materials testamentary succession.
3. Right to participate in ownership
4. Right to impede or prevent the neighboring estate Note:
from performing a specific act of ownership.
1. Intestate succession does not cerate an easement for no
According to source or origin act is involved. It merely transmits an easement already
existing.
1. Legal 2. Prescription is a mode of acquisition and is generally or
2. Voluntary ordinarily a title but Art. 620 makes it a distinct mode of
3. Mixed acquiring easements. Thus, prescrition under Art. 620
requires 10 years irrespective of good faith or bad faith,
Art. 617. Easements are inseparable from the estate to or the presence or absence of just title on the part of the
which they actively or passively belong. (534) possessor.

Thus, it cant be mortgaged. It has an independent juridical Q: Is eminent domain a mode of acquiring easements?
existence because it is a real right.
A: Yes, there is no reason why eminent domain cannot be
Art. 618. Easements are indivisible. If the servient estate is used to merely impose a burden or encumbrance upon the
divided between two or more persons, the easement is not condoned property.
modified, and each of them must bear it on the part which
corresponds to him.

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Art. 621. In order to acquire by prescription the easements
referred to in the preceding article, the time of possession
shall be computed thus: in positive easements, from the day
on which the owner of the dominant estate, or the person
who may have made use of the easement, commenced to
exercise it upon the servient estate; and in negative
easements, from the day on which the owner of the
dominant estate forbade, by an instrument acknowledged
before a notary public, the owner of the servient estate,
from executing an act which would be lawful without the
easement. (538a)
This article applies only to easements acquired by
prescription.
Continuous an apparent easements may either be postive or
negative depending on whether sufferance or abstention is to
be made.
Q: May the easement of right of way be acquired by
prescription?
A: No because it is disontinuous or intermittent. The
limitation on the servient owners right of ownership exists,
only when the dominant owner actually crosses or passes
over the servient estate. Prescription requires that the
possession be continuous or uninterrupted since the
dominant owner cannot be continually crossing the servient
estate but can do so only at intervals. The easement is
necessarily discontinuous in nature.
Note: Generally, negative easements being non-apparent
cannot be acquired by prescription. Yet, for purposes of
prescription, negative easements may be considered as
apparent because of the notarial prohibition sent to the
owner of the servient estate.
The notarial prohibition makes apparent what is not
apparent. Oral prohibition and private writing therefore does
not suffice because the law requires solemn formalities.
Art. 622. Continuous nonapparent easements, and
discontinuous ones, whether apparent or not, may be
acquired only by virtue of a title. (539)
ACQUISITION ONLY BY TITLE
Continuous and apparent easements are the only easements
that can be acquired by prescription because they are the
only ones the possession of which fulfills 2 important
requisites required by law for prescription:
a. that the possession be public
b. that the possession be continuous
The easements under Art. 622 may be acquired by title but
not by prescription because their possession or exercise is
either not public or it is public but not continuous or
uninterrupted
___________________________
Acquisition of easement of right of way by
prescription:
The easement cannot be acquired by prescription, but if the
greater right of ownership of the property can be acquired by
prescription, there seems to be no reason why the right of
way which is a mere encumberance on the property cannot
be similarly acquired.
Art. 623. The absence of a document or proof showing the
origin of an easement which cannot be acquired by
prescription may be cured by a deed of recognition by the
owner of the servient estate or by a final judgment. (540a)
Note: The court order is merely declaratory of the existence
of the easement. It does not apply to continuous and
apparent easements.
Art. 624. The existence of an apparent sign of easement
between two estates, established or maintained by the
owner of both, shall be considered, should either of them be
alienated, as a title in order that the easement may
continue actively and passively, unless, at the time the
ownership of the two estates is divided, the contrary should
be provided in the title of conveyance of either of them, or
the sign aforesaid should be removed before the execution
of the deed. This provision shall also apply in case of the
division of a thing owned in common by two or more
persons. (541a)
The provision contemplates a situation where two estates
between which there exists an apparent sign of an easement,
belong to the same owner; 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.
The article applies in case of a division of a common property
by the co owners as the effect is the same as an alienation,
or there is only one estate and a part thereof is alienated.
The article is not applicable in case the two estates or
portions of the same estate remain or continue to be in the
same owner after alienation or partition.
Art. 625. Upon the establishment of an easement, all the
rights necessary for its use are considered granted. (542)
Q: What is the effect of the principal easement to the
secondary easements?
A: It shall terminate all secondary and accessory easements.
Note: Voluntary easements must be registered to bind third
persons while legal easements need not be registered.
Art. 626. The owner of the dominant estate cannot use the
easement except for the benefit of the immovable originally
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contemplated. Neither can he exercise the easement in any
other manner than that previously established. (n)
The easement is for the exclsuive benefit of the dominant
estate originally contemplated and cannot be extended to
other estates owned by the dominant estate.
The manner of exercise of the easement cannot be modified
to prevent increase in the burden of the easement to the
servient estate.
If the easement is established in a general manner:it can be
used to suit the reasonable needs of the dominant estate.
SECTION 3. - Rights and Obligations
of the Owners of the Dominant and Servient Estates
Art. 627. The owner of the dominant estate may make, at
his own expense, on the servient state any works necessary
for the use and preservation of the servitude, but without
altering it or rendering it more burdensome.
For this purpose he shall notify the owner of the servient
estate, and shall choose the most convenient time and
manner so as to cause the least inconvenience to the owner
of the servient estate. (543a)
The necessity of the works for the use and preservation of the
easement is the basis and the determining factor for the
extent of such works.
The works must be executed in the manner least
inconvenient to the servient owner, who cannot recover
indemnity for the inevitable damages or inconveniences
which may be caused thereby.
But if the work is done badly, the dominant owner will be
liable for damages that may be suffered by the servient
owner.
Rights of dominant owner
Q: What are the rights of dominant owner?
A:
1. to exercise all the rights necessary for the use of the
easement;
2. to make on the servient estate all the works necessary
for the use an preservation of the servitude;
3. to renounce the easement if he desires to exempt
himself from contribution to necessary expenses;
4. to ask for mandatory injunction to prevent impairment of
his use of the easement
Obligations of dominant owner
___________________________
Q: What are the obligations of dominant owner?
A:
1. he cannot alter the easement or render it more
burdensome;
2. he shall notify the servient owner of works necessary for
the use and preservation of the servitude;
3. he must choose the most convenient time and manner in
making the necesary works as to cause the least
inconvenience to the servient owner;
4. he must contribute to the necessary expenses if there
are several dominant estates in proportion to the
benefits derived from the works
Rights of the servient owner
Q: What are the rights of servient owner?
A:
1. to retain the ownership of the portion of the estate on
which the easement is established;
2. to make use of the easement, unless there is an
agreement to the contrary;
3. to change the place or manner of the use of the
easement provided it be equally convenient
Obligations of the servient owner
Q: What are the obligations of servient owner?
A:
1. he cannot impair the use of the easement;
2. he must contribute to the necessary expenses in case he
uses the easement, unless there is an agreement to the
contrary
Rights of dominant owner to make the necessary works
The rights granted by art. 627 is subject to the following
conditions:
1. the works which shall be at his expense, are necessary
for the use and preservation of the servitude;
2. they do not alter or render the servitude more
burdensome;
3. the dominant owner, before making the works, must
notify the servient owner;
4. they shall be done at the most convenient time and
manner so as to cause the least inconvenience to the
servient owner
If the dominant owner violates the restrictions imposed by
this article, he can be compelled to restore the things to their
original condition, and furthermore, to pay indemnity for
damages.
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Art. 628. Should there be several dominant estates, the
owners of all of them shall be obliged to contribute to the
expenses referred to in the preceding article, in proportion
to the benefits which each may derive from the work. Any
one who does not wish to contribute may exempt himself
by renouncing the easement for the benefit of the others.
If the owner of the servient estate should make use of the
easement in any manner whatsoever, he shall also be
obliged to contribute to the expenses in the proportion
stated, saving an agreement to the contrary. (544)
Dominant owner alone shall shoulder the expenses referred
to in art. 627.
Q: If the easement is in favor of several dominant estates,
who shall shoulder the expenses?
A: If the easement is in favor of several dominant estates, all
the owners shall share the expenses in proportion to their
respective interests.
Q: What is the presumption as to benefits?
A: The benefits shall be presumed equal in the absence of any
agreement or proof to the contrary.
Q: May an owner exempt himself from contributing for
expenses?
A: An owner may exempt himself from contributing to the
expenses by renouncing the easement in favor of the others.
Q: Is the servient owner obliged to contribute for expenses?
A: The servient owner shall also be obliged to contribute to
the expenses except when there is a stipulation to the
contrary, should he make use of the easement in any manner
whatsoever. If he bound himself to bear the cost of the work,
he may free himself from the obligation by renouncing his
property to the dominant owner
Art. 629. The owner of the servient estate cannot impair, in
any manner whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned, or
of the manner established for the use of the easement, the
same should become very inconvenient to the owner of the
servient estate, or should prevent him from making any
important works, repairs or improvements thereon, it may
be changed at his expense, provided he offers another place
or manner equally convenient and in such a way that no
injury is caused thereby to the owner of the dominant
estate or to those who may have a right to the use of the
easement. (545)
___________________________
NOTE: The servient owner must abstain from constructing
works or performing any act which will impair, in any manner
whatsoever, the use of the servitude
Right of servient owner to change place or manner of
easement
Q: What are the requisites for the exercise of the rights of a
servient owner to change place or manner of easement?
A:
1. the place and manner has become very inconvenient to
him from making important works thereon;
2. he offers another place or manner equally convenient;
3. no injury is caused by the change to the dominant owner
or to whoever may have a right to use the easement
Art. 630. The owner of the servient estate retains the
ownership of the portion on which the easement is
established, and may use the same in such a manner as not
to affect the exercise of the easement. (n)
NOTE: The servient owner preserves his dominion over the
portion of his estate on which the easement is established;
He may use the easement subject to the condition that he
does not impair the rights of the dominant owner.
SECTION 4. - Modes of Extinguishment of Easements
Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the
dominant and servient estates;
(2) By nonuser for ten years; with respect to discontinuous
easements, this period shall be computed from the day on
which they ceased to be used; and, with respect to
continuous easements, from the day on which an act
contrary to the same took place;
(3) When either or both of the estates fall into such
condition that the easement cannot be used; but it shall
revive if the subsequent condition of the estates or either of
them should again permit its use, unless when the use
becomes possible, sufficient time for prescription has
elapsed, in accordance with the provisions of the preceding
number;
(4) By the expiration of the term or the fulfillment of the
condition, if the easement is temporary or conditional;
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of
the dominant and servient estates. (546a)
MODES OF EXTINGUISHMENT OF
EASEMENTS
Q: What are the modes of extinguishment of easements?
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A: CHAPTER 2
1. by merger; LEGAL EASEMENTS
2. by non user for ten years;
3. impossibility of use; SECTION 1. - General Provisions
4. by renunciation;
5. by redemption; Art. 634. Easements imposed by law have for their object
6. other causes either public use or the interest of private persons. (549)

Merger Q: What are legal easements?

It is enough that the merger be with respect to the portion of
the tenement that is affected by the servitude, or the part for
the benefit of which it was established.
Where the merger is temporary or under resolutory
condition, there is at most a suspension, but nit an
extinguishment of the servitude.
Non- use
A: They are easements imposed by law which have for their
object either public use or the interest of private persons.
Q: What are the kinds of legal easements?
A:
1. Public legal easement-those for public use;
2. Private legal easement-those for private interest.

Non-use must be due to voluntary abstentation by the Q: What are the different legal easements under the Code?
dominant owner, and not to fortuitous event, because the
basis of this cause of extinguishment is a presumptive A:
renunciation.
1. Easements relating to waters;
Impossibility of use 2. Right of way;
3. Party wall;
The impossibility of use only suspends the servitude until 4. Light and view;
such time when it can be used again. 5. Drainage;
6. Intermidiate distances;
Art. 632. The form or manner of using the easement may 7. Easement against nuisance; and
prescribe as the easement itself, and in the same way. 8. Lateral and subjacent support.
(547a)
Art. 635. All matters concerning easements established for
Prescription of form or manner of using easement public or communal use shall be governed by the special
laws and regulations relating thereto, and, in the absence
The form or manner of using the easement is different from thereof, by the provisions of this Title. (550)
the easement itself or the right to exercise it. Both may be
lost by prescription. The mode of the servitude is accidental; Art. 636. Easements established by law in the interest of
hence, it does not affect the servitude itself while the private persons or for private use shall be governed by the
servitude is used in one form or another. provisions of this Title, without prejudice to the provisions
of general or local laws and ordinances for the general
Art. 633. If the dominant estate belongs to several persons welfare.
in common, the use of the easement by any one of them
prevents prescription with respect to the others. (548) These easements may be modified by agreement of the
interested parties, whenever the law does not prohibit it or
Where dominant estate owned in common no injury is suffered by a third person. (551a)

Since easements are indivisble, the use of the co owner Q: How are private legal easements or legal easement for
inures to the benefit of all the co owners and prevents private interest governed?
prescription as to the shares of the latter. The use by a co
owner is deemed to be use by each and all the co owners. A:

1. Agreement of the parties provided they are neither

prohibited by law nor prejudicial to third persons;
2. In default, general or local laws and ordinances for the
general welfare;

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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
3. In default, title VII of Art. 613 to 687 of the NCC.
Note: The law on waters governs the use of waters and the
NCC is merely suppletory.
SECTION 2. - Easements Relating to Waters
Art. 637. Lower estates are obliged to receive the waters
which naturally and without the intervention of man
descend from the higher estates, as well as the stones or
earth which they carry with them.
The owner of the lower estate cannot construct works
which will impede this easement; neither can the owner of
the higher estate make works which will increase the
burden. (552)
Repealed by Art. 50 (Water Code):
Article 50. Lower estates are obliged to receive the
waters which naturally and without the intervention of man
flow from the higher estate, as well as the stone or earth
which they carry with them.
The owner of the lower estate can not construct works
which will impede this natural flow, unless he provides an
alternative method of drainage; neither can the owner of
the higher estate make works which will increase this
natural flow.
Legal easements relating to waters
1. natural drainage;
2. drainage of buildings;
3. easement on riparian banks for navigation;
4. easement of a dam;
5. easement for drawing waters or for watering animals
6. easement of aqueduct;
7. easement for the construction of a stop clock or sluice
gate
Q: What is a natural drainage of water?
A: It is a legal easement of natural drainage of lands where
the lower estate as the servient estate would have to receive
the natural flow of water from the higher estates.
Q: What lower estates are obliged to receive?
A:
1. water which naturally and without human intervention
descends from the higher estates
2. the stones and earth with the current of the water
carried
___________________________
Duties of the Servient estate (lower estate)
The servient estate is obliged to receive the waters naturally
and without interventio of man flow from higher estates and
the stone and earth they carry with them
Because of this obligation, he cannot construct works that
will impede the easement; or will divert the flow of waters
and burden other tenements without providing an alternative
route of drainage.
Should he cause an obstruction, as when he builds a dike, the
easement may be extinguished by non-user and barred by
prescription if the action to destroy the dike is brought only
after more than 10 years.
Duties of the dominant estate (higher estate)
He cannot make works which will increase the burden such as
increasing the velocity or speed of the descent. However,he
allowed to make construction beneficial to the servient
estate, such as works designed to prevent or minimize
erosion.
If the flow of water is natural and without human
intervention then indemnity is not required under the article
as long as the conditions are complied with. However, if the
flow of water is the result of overflow from artificial dams or
works done by man and damage is caused, the owner of the
servient estate shall be entitled to indemnity.
Q: May the owner of the servient estate be compelled to
remove the obstruction caused by the accumulation of the
stones, earth and dirt carried by the water?
A: According to De Buen, the owner may be required to
remove the obstruction or allow the owner of the dominant
estate to remove it, should he refuse he may be held liable
for damages.
According to Sen. Tolentino, since the owner of the servient
estate is only ibliged to receive the waters thay naturally
flow, he cannot be obliged to clear such course; but he must
allow the owner of the servient estata to remove it.
Q: What about rain waters from roof of buildings and
houses are they included in the easement of natural
drainage of water?
A: It depends. If the rainwater flows into the owner land
before it flows down directly into the servient estate he
becomes liable for the collection of the water in such a way
as not to cause damage to the adjacent land or tenement.
Q: Is there an obligation to pay indemnity to the servient
estate?
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
A: No since the law is silent and under the law on obligations
and contracts well settled is the rule that obligations arising
from laws cannot be presumed.
Art. 638. The banks of rivers and streams, even in case they
are of private ownership, are subject throughout their entire
length and within a zone of three meters along their
margins, to the easement of public use in the general
interest of navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable rivers
are, furthermore, subject to the easement of towpath for
the exclusive service of river navigation and floatage.
If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
Repealed by:
Art. 51 (Water Code)
Article 51. The banks of rivers and streams and the shores of
the seas and lakes throughout their entire length and within a
zone of three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along
their margins are subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing and
salvage. No person shall be allowed to stay in this zone longer
than what is necessary for recreation, navigation, floatage,
fishing or salvage or to build structures of any kind.
Easement of Riparian banks
Q: What are easements of riparian banks?
A: It is an easement on a riparian property, banks of rivers,
and streams of public use in the interest of fishing, floatage,
and interest of recreation, navigation and salvage
1. easement of public use on riparian banks; banks of
rivers, streams, shores of seas and lakes (whether
bank be private or public, whether the river be
navigable or not)
a. fishing,
b. floatage,
c. interest of recreation,
d. navigation and
e. salvage
NOTE: There is no burden if for other purposes
Urban areas 3 meters
Agricultural areas 20 meters
Forest areas 40 meters
2. easement of tow path on banks of navigable and
floatable rivers
___________________________
For animals 2 meters
For pedestrians 1 meter
Payment of indemnity
There can only be an indemnity if the land is a private one.
Otherwise, if it is a public land, no right exists. If it is of
private ownership, the proper indemnity shall first be paid
before it is occupied.
NOTE: This article does not apply to canals.
Art. 639. Whenever for the diversion or taking of water from
a river or brook, or for the use of any other continuous or
discontinuous stream, it should be necessary to build a dam,
and the person who is to construct it is not the owner of the
banks, or lands which must support it, he may establish the
easement of abutment of a dam, after payment of the
proper indemnity. (554)
Easement of abutment of a dam
Q: What is an easement of abutment of a dam?
A: It is an easement for the constructio of the support of a
dam for the diversion or taking of water from a river or brook
or for the use of any other continuous or discontinuous
stream.
Q: What are the requisites?
A:
1. the one who wishes to build is not the owner of the land
or bank which would support the dam
2. it should be for the purpsoe of diverting or taking of
water
3. he must first obtain the permission of the riparian owner
for the construction. If refused, he must request an
administrative investigation to find out whether the
constructio of a dam is essential
4. payment of proper indemnity
Q: If neither permission nor investigation is sought before
the construction of dam, what would be the consequence of
such action?
A: It would be deemed as if he has taken the law into his own
hands. Such action would amount to taking of property
without due process and the dam may be considered as a
private nuisance and it may be demolished.
Art. 640. Compulsory easements for drawing water or for
watering animals can be imposed only for reasons of public
use in favor of a town or village, after payment of the
proper indemnity. (555)
Art. 641. Easements for drawing water and for watering
animals carry with them the obligation of the owners of the
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
servient estates to allow passage to persons and animals to
the place where such easements are to be used, and the
indemnity shall include this service. (556)
NOTE: This includes the accessory easement of passage or
right of way of persons and animals to the place where the
easement is to be used.
Q: What are the easements covered by the article?
A:
1. for drawing of animals
2. for watering of animals
3. easement of right of way
Q: What are the requisites?
A:
1. imposed for reasons of public use;
2. in favor of a town or village;
3. the right must be sought not by an individual but by the
town or village, thru its legal representative (Manresa)
4. payment of proper indemnity (may be agreed by the
parties, otherwise the court will fix)
5. the right of way should have a maximum of 10 meters,
which cannot be altered by the owners of the servient
estate although the direction of the path may be
changed, provided the use of the easement is not
prejudiced (Manresa)
Easement of aqueduct
Art. 642. Any person who may wish to use upon his own
estate any water of which he can dispose shall have the
right to make it flow through the intervening estates, with
the obligation to indemnify their owners, as well as the
owners of the lower estates upon which the waters may
filter or descend. (557)
Art. 643. One desiring to make use of the right granted in
the preceding article is obliged:
(1) To prove that he can dispose of the water and that it is
sufficient for the use for which it is intended;
(2) To show that the proposed right of way is the most
convenient and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the
manner determined by the laws and regulations. (558)
Art. 644. The easement of aqueduct for private interest
cannot be imposed on buildings, courtyards, annexes, or
outhouses, or on orchards or gardens already existing. (559)
Art. 645. The easement of aqueduct does not prevent the
owner of the servient estate from closing or fencing it, or
from building over the aqueduct in such manner as not to
___________________________
cause the latter any damage, or render necessary repairs
and cleanings impossible. (560)
Art. 646. For legal purposes, the easement of aqueduct shall
be considered as continuous and apparent, even though the
flow of the water may not be continuous, or its use depends
upon the needs of the dominant estate, or upon a schedule
of alternate days or hours. (561)
Q: What is aqueduct?
A: It is a conduit or artificial channel for the conduction of
water from a distance.
Q: What is an easement of aqueduct?
A: The right to make water flow thru intervening estates in
order that one may make use of said waters.
This is the right arising from a forced easement by virtue of
which the owner of an estate who desires to avail himself of
water for the use of said estate may make such waters pass
thru the 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 flow.
NOTE: The existence of right of way does not include the
easement of aqueduct.
Examples:
1. construction of open canal provided it is not dangerous
and not very deep
2. construction of covered or closed canal
3. constructiin with tubes or pipes
Q: How would you characterize easement of aqueduct?
A: It is considered as continuous and apparent. It is
considered as continuous even though the flow of water may
not be continuous.
Requisites for use of easement of usufruct
Q: What are the requisites for the use of this right?
A:
1. proof that he has the capacity to dispose of the
water;
2. proof that the water is sufficient for the use
intended;
3. show that the proposed right of way is the most
convenient and the least onerous to third persons;
4. pay indemnity to the owner of the servient estate
5. it cannot be imposed on existing building,
courtyards, annexes, out-houses, orchard, or
gardens
6. proper administrative permits are obtained (Art. 13,
Water Code)
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
Capacity to dispose
Any real party in interest may set-up an objection based on
the fact that the person seeking the easement has no right to
the use of waters.
Q: Who can apply for this right?
A: Only citizens of the Philippines of legal age or juridical
persons qualified by law to exploit natural resources may
apply for water permits
Sufficient for the use intended
The purpose should be indicated to determine sufficiency.
The purpose may be for anything so long as it is lawful.
Sufficiency is a relative term and must not be construed very
literally.
Proposed right of way is the most convenient and
the least onerous
The shotest distance is not necessarily that contemplated by
law.
Indemnity to the owner of the servient estate
Owners of the intervening land and owners of lower estates
upon which waters may filter or descend.
Q: How is the amount determined?
A: The amount usually depends on the duration and
inconvenience caused.
Cannot be imposed on existing building, courtyards,
annexes, out-houses, orchard, or gardens
The easement may be constructed on roads.
Q: Why is cant the easement be imposed on the above-
mentioned places?
A: If easement of aqueduct is allowed to burden the said
property, there would result an invasion of privacy. However,
if the aqueduct is for the benefit of the public or community,
it can be imposed even on the enumerated property because
public interest prevails over private interest.
Obligations of the dominant owner
1. keep the aqueduct in proper use and care
2. keep necessary material for its use
Q: May the servient owner still enclose with fence the
servient estate or even aver the aqueduct?
___________________________
A: Yes, provided the following are present:
a. no damage is caused to the aqueduct
b. repairs and cleaning do not become impossible
He can also construct works he may deem necessary to
prevent damage to himself provided he does not impede or
impair the use of the easement; otherwise he shall be liable
for damages.
Art. 647. One who for the purpose of irrigating or improving
his estate, has to construct a stop lock or sluice gate in the
bed of the stream from which the water is to be taken, may
demand that the owners of the banks permit its
construction, after payment of damages, including those
caused by the new easement to such owners and to the
other irrigators. (562)
Construction of stop lock or sluice gate
Q: What are the requisites?
A:
1. purpose must be for irrigation or improvement
2. the construction must be on the estate of another
3. damages must be paid
4. third persons should not be prejudiced
Art. 648. The establishment, extent, form and conditions of
the servitudes of waters, to which this section refers, shall
be governed by the special laws relating thereto insofar as
no provision therefor is made in this Code. (563a)
Repealed by:
Art. 52 (Water Code)
Q: In case of conflict between the Water Code and the Civil
Code, which will prevail?
A: The Water Code prevails. However, the Civil Code shall
remain the prevailing law in case of conflict in the ff:
1. establishment of easement of waters
2. extent of easement of waters
3. form of easement of waters
4. conditions of easement of waters provided these are
not expressly determined by the Water Code.
SECTION 3. - Easement of Right of Way
Art. 649. The owner, or any person who by virtue of a real
right may cultivate or use any immovable, which is
surrounded by other immovables pertaining to other
persons and without adequate outlet to a public highway, is
entitled to demand a right of way through the neighboring
estates, after payment of the proper indemnity.
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Should this easement be established in such a manner that
its use may be continuous for all the needs of the dominant
estate, establishing a permanent passage, the indemnity
shall consist of the value of the land occupied and the
amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage
for the cultivation of the estate surrounded by others and
for the gathering of its crops through the servient estate
without a permanent way, the indemnity shall consist in the
payment of the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts. (564a)
Concepts of right of way
Q: What are the 2 concepts of right of way?
A:
1. easement itself
2. the strip of land used as a passageway
Q: What is right of way?
A: It is the right granted to a person or class of person to pass
over the land of another by using a particular pathway
therein, to reach the formers estate, without an adequate
outlet to public rightway, subject to payment of indemnity.
The right to demand that the owner of an estate surrounded
by other estates he allowed to pass thru the neighboring
estates after payment of proper indemnity.
Q: Can easement of right of way be acquired by
prescription?
A: No, because it is discontinuous or intermittent
Requisites for the easement of right of way
Q: What are the requisites for this easement?
A:
1. The easement must be established at the point least
Prejudicial to the servient estate;
2. Claimant must be an Owner of enclosed immovable
or with real right;
3. There must be no adequate Outlet to a public
highway;
4. The right of way must be absolutely Necessary not
mere convenience;
5. The isolation must not be Due to the claimants own
act; and
6. There must be payment of proper Indemnity.
Q: Who should be the claimant of the right?
___________________________
A: The claimant must be an owner of enclosed immovable or
with real right to cultivate and use the immovable.
Q: May a lessee demand such right?
A: A lessee cannot demand such right unless the lease is
registered. The lessee should ask the lessor to demand the
easement from adjoining estates.
NOTE: The property must be surrounded by immovable
owned by others and there must be no adequate outlet to a
public highway.
Q: Explain: The right of way must be absolutely necessary.
A: The owner must show that there is a real, not fictituous or
artificial necessity for the normal enjoyment of the property.
Mere convenience is not enough to serve as basis for an
easement of right of way.
Q: What if the property is not the shortest way and will not
cause the least damage to the servient estate?
A: The way which will cause the least damage should be used
even if it will not be the shortest.
The easement of right of way shall be established at the point
least prejudicial to the servient estate and where the distance
from the dominant estate to a public highway is the shortest.
In case of conflict, the criterion of least prejudice prevails
over the criterion of shortest distance
Q: What does least prejudicial mean in determining the
right of way?
A: It means it is the shortest way and the one which will
cause the least damage to the property to the servient estate
in favor of the dominant estate.
NOTE: The isolation must not be due to the claimants own
act
Ex: When he built enclosing walls
Payment of indemnity
If the passage is continuous and permanent, the indemnity
consists of the value of the land occupied plus the amount of
damages caused to the servient estate.
If it is temporary, the indemnity consits of the payment of the
damage caused to the servient estate.
The use before indemnity is not allowed.
In as much as an easement is legal or compulsory (there
being no access in the highway), not a mere voluntary
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easement. Its existence does not depend on the consent of
the powers.
Where the certificate of title does not state that the
boundaries thereof have been determined, the only servitude
which a privaye property is required to recognize in favor of
the government under Sec. 39 of PD.1529 is the easement of
a public highway, private highway established by law or any
governmental canal or lateral thereof. But in this case, it is
necessary that the easement should have been previously
established by law which implies that the same should have
been preexisting at the time of registration in order that the
owner may be compelled to respect it.
Where the easement is not pre-existing and it is soyght to be
imposed after the land has been registered, proper
expropriation proceedings should be had and just
compensation paid to the registered owner thereof.
Q: May the easement of right of way be acquired by
prescription?
A: According to Sen. Tolentino, if the right of way is
permanent and has an apparent sign it can be acquired by
prescription. Since the land on which the servitude is situated
is susceptible of acquisition by prescritpion why cant a
servitude which is less than ownership.
While others like Justice Paras and JBL Reyes believes that it
cannot because it is discontinuous or intermittent. The
limitation on the servient owners right of ownership exists
only when the dominant owner actually crosses or passes
over the servient estate. Prescription requires that the
possession be continuous or uninterrupted since the
dominant owner cannot be continually crossing the servient
estate, but can do so only at intervals.
Q: What are the different classifications of right of way?
A:
1. Private- those established for the benefit of private
individuals; and
2. Public- one available to the general public.
Proper indemnity
1. If the passege is permanent, that is, its use is
continuous for all the needs of the dominant estate,
the indemnity is the equivalent of the value of the
land occupied plus the amount of damage caused;
2. If the passaage is temporary, the use is only for a
certain period of time like:
a. Limited passage necessary for cultivation; and
b. Passage of construction materials
___________________________
The indemnity shall consist of the amount of damages
caused.
Art. 650. The easement of right of way shall be established
at the point least prejudicial to the servient estate, and,
insofar as consistent with this rule, where the distance from
the dominant estate to a public highway may be the
shortest. (565)
Least prejudice v. shortest distance
Where the easement may be established on any several
tenements surrounding the dominant estate:
1. The one where the way is the shortest; and
2. The one which will cause the least damage should be
chosen.
But if the 2 circumstances do not concur in a single tenement,
the way which shall cause the least prejudice should be used,
even if it will not be the shortest.
The criterion of least preejudice must prevail over the
criterion of shortest distance.
Art. 651. The width of the easement of right of way shall be
that which is sufficient for the needs of the dominant estate,
and may accordingly be changed from time to time. (566a)
Width of the pathway
The width of the pathway must be enough for the needs of
the dominant estate and may be accordingly changed from
time to time as the needs of the dominant owner may change
but always subject to the rule that the rights of the servient
owner are not abused.
Where the dominant owner was granted a footpath, he
cannot be denied the use of car. In the present age when
motor vehicles are vital necessary, a dominant proprietor has
a right to demand a driveway for his automobile and not a
mere pathway for persons.
Art. 652. Whenever a piece of land acquired by sale,
exchange or partition, is surrounded by other estates of the
vendor, exchanger, or co-owner, he shall be obliged to grant
a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified
by the donee for the establishment of the right of way.
(567a)
Rules when the land acquired is isolated
1. The isolation was due to the estate of the grantor (seller,
exchanger, or previous co-owner), he shall be obliged to
grant a right of way without indemnity; and
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
2. However, if the act is simple donation, the donee is
obliged to pay indemnity to the donor for the
establishment of easement of right of way.
Q: What is the reason behind the rule?
A: Since the transfer of land was by virtue of the liberality of
the donor, it would be an abuse of enerosity to require the
donor to grant a right of way without indemnity.
Art. 653. In the case of the preceding article, if it is the land
of the grantor that becomes isolated, he may demand a
right of way after paying a indemnity. However, the donor
shall not be liable for indemnity. (n)
Rules when the land of the grantor become isolated
1. The grantor may demand a right of way after paying the
proper indemnity; and
2. If the grantor is a donor, he shall not be liable for
indemnity. In this case, the liberality must be
reciprocated with liberality.
Nature of easement under Art. 652 and 653
The easements created are in a sense a voluntary easement
because its proximate cause of creation is by the will of the
parties in view of the contract entered into. It is of course
compulsory in the sense that it hs to be granted, generally
without indemnity.
Q: Andrew sold to Ben a parcel of land isolated by another
several estates owned by Andrew. Andrew gave an outlet
thru estate 1 without indemnity since the purchase price
presumably already included the right of easement. Later
the outlet thru estate 1 became useless because the
highway to which it led was closed. If Ben demands another
outlet, is he allowed to get a new one? If so, must he pay
indemnity.
A: Yes, he can demand another outlet under Art. 649 (he
must therefor pay). He cannot take advantage of Art. 652
because after all an outlet had already been granted. This
time the necessity arises not because of the sale becauese of
the necessity itself.
Art. 654. If the right of way is permanent, the necessary
repairs shall be made by the owner of the dominant estate.
A proportionate share of the taxes shall be reimbursed by
said owner to the proprietor of the servient estate. (n)
Responsibility for repairs and taxes
This article applies only in case of permanent easement.
Q: Who is liable for necessary repairs?
A: Owner is liable.
___________________________
Q: Who shall pay for the taxes?
A:Proportioanate share of the taxes shall be reimbursed by
the owner to the proprietor of the servent estate.
Q: What do you mean by proportionate share?
A: According to Dean Pineda, it shall be corresponding to the
area of the right of way which could be mathematically
computed by dividing the amount of the tax by the number of
square hectares used as right of way.
Art. 655. If the right of way granted to a surrounded estate
ceases to be necessary because its owner has joined it to
another abutting on a public road, the owner of the servient
estate may demand that the easement be extinguished,
returning what he may have received by way of indemnity.
The interest on the indemnity shall be deemed to be in
payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened
giving access to the isolated estate.
In both cases, the public highway must substantially meet
the needs of the dominant estate in order that the
easement may be extinguished. (568a)
This article applies only to legal or compulsory right of way. It
does not apply to voluntary easement because the existence
of such easement is not affected by the existence of another
outlet but the contract between the parties.
Q: What extinguishes the easement of right of way?
A:
1. When the dominant estate is joined with another
estate which is abutting a public road. The access
being adequate and convenient; and
2. When a new road is opened giving access to the
isolated estate.
Q: Is the extinguishment automatic or ipso facto?
A: No, extinguishement can only be effected upon the
demand of the owner of the servient estate.
Return of the indemnity
1. If the right of way is permanent-upon the extinguishemnt
of the servitude, the owner of the servient estate is
obliged to return the amount of indemnity without
interest; and
2. If the right of way is temporary-there is no need of
returning the indemnity. The indemnity paid has the
nature of rentals in a lease contract which need not be
returned after the termination of the leaese.
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Art. 656. If it be indispensable for the construction, repair,
improvement, alteration or beautification of a building, to
carry materials through the estate of another, or to raise
therein scaffolding or other objects necessary for the work,
the owner of such estate shall be obliged to permit the act,
after receiving payment of the proper indemnity for the
damage caused him. (569a)
___________________________
2. Joining the dominant tenement to another which has an
exit to a public road.
Q: Is said extinguishment automatic?
A: No. There must be a demand for extinguishment coupled
with tender of indemnity by the servient owner.

Temporary Easement of right of way SECTION 4. - Easement of Party Wall

Q: What does the word owner contemplate? Art. 658. The easement of party wall shall be governed by
the provisions of this Title, by the local ordinances and
A: Owner comprehends the usufructuary who may make customs insofar as they do not conflict with the same, and
use of the right granted. by the rules of co-ownership. (571a)

Q: What do you mean by improvement? Q: What is an easement of party wall?

A: Improvement, alteration or beautification are added to A: Refers to all those mass of rights and obligations
make the rule comprehensive. emanating from the existence and common enjoyment of
wall, fence, enclosures or hedges, by the owners of adjacent
Q: What does indispensable mean? buildings and estates separated by such objects.

A: Indispensable should not be construed in its literal Q: What is a party wall?

meaning. It is sufficient that great convenience, difficulty or
expense would be encountered. A: A common wall which separates two estates, built by
common agreement at the dividing line such that it occupies
Art. 657. Easements of the right of way for the passage of a portion of both estates on equal parts.
livestock known as animal path, animal trail or any other,
and those for watering places, resting places and animal Q: Which is the servient estate?
folds, shall be governed by the ordinances and regulations
relating thereto, and, in the absence thereof, by the usages A: The party wall itself is the servient estate.
and customs of the place.
Party wall v. Co-ownership
Without prejudice to rights legally acquired, the animal path
shall not exceed in any case the width of 75 meters, and the PARTY WALL CO-OWNERSHIP
animal trail that of 37 meters and 50 centimeters. Shares of coowners cannot Can be divided physically; a
be physically segregated but coowner cannot point to any
Whenever it is necessary to establish a compulsory they can be physically definite portion of the
easement of the right of way or for a watering place for identified property belonging to him
animals, the provisions of this Section and those of Articles
640 and 641 shall be observed. In this case the width shall No limitation as to use of the None of the coowners may
not exceed 10 meters. (570a) party wall for exclusive use the community property
benefit of a party for his exclusive benefit
Right of way for the passage of livestock, watering places, because he would be
etc. invading on the rights of the
others
The easement shall be governed by the ordinances and Any owner may free himself Partial renunciation is
regulations relating thereto, and in their absence, by the from contributing to the cost allowed
usage and customs of the place. of repairs and construction of
a party wall by renouncing
Q: What are the special causes of extinguishment of right of ALL his rights
way?
Art. 659. The existence of an easement of party wall is
A: presumed, unless there is a title, or exterior sign, or proof to
the contrary:
1. The opening of a public road, or

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(1) In dividing walls of adjoining buildings up to the point of
common elevation;
(2) In dividing walls of gardens or yards situated in cities,
towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural lands. (572)
Q: What are the presumptions (juris tantum) of existence of
a party wall?
A:
1. in adjoining walls of building, up to common
elevation
2. in dividing walls of gardens and yards (urban)
3. in dividing fences, walls and live hedges of rural
tenements
4. In ditches or drains between tenements
Q: How is the presumption rebutted?
A:
1. Title
2. by contrary proof
3. by signs contrary to the existence of the servitude
(Arts. 660 & 661, NCC)
Note: If the signs are contradictory, they cancel each other.
Art. 660. It is understood that there is an exterior sign,
contrary to the easement of party wall:
(1) Whenever in the dividing wall of buildings there is a
window or opening;
(2) Whenever the dividing wall is, on one side, straight and
plumb on all its facement, and on the other, it has similar
conditions on the upper part, but the lower part slants or
projects outward;
(3) Whenever the entire wall is built within the boundaries
of one of the estates;
(4) Whenever the dividing wall bears the burden of the
binding beams, floors and roof frame of one of the
buildings, but not those of the others;
(5) Whenever the dividing wall between courtyards,
gardens, and tenements is constructed in such a way that
the coping sheds the water upon only one of the estates;
(6) Whenever the dividing wall, being built of masonry, has
stepping stones, which at certain intervals project from the
surface on one side only, but not on the other;
(7) Whenever lands inclosed by fences or live hedges adjoin
others which are not inclosed.
In all these cases, the ownership of the walls, fences or
hedges shall be deemed to belong exclusively to the owner
of the property or tenement which has in its favor the
presumption based on any one of these signs. (573)
Art. 661. Ditches or drains opened between two estates are
also presumed as common to both, if there is no title or sign
showing the contrary.
___________________________
There is a sign contrary to the part-ownership whenever the
earth or dirt removed to open the ditch or to clean it is only
on one side thereof, in which case the ownership of the
ditch shall belong exclusively to the owner of the land
having this exterior sign in its favor. (574)
The article mentions some exterior signs rebutting the
presumption of a party wall.
The wall becomes the exclusive property of the owner of the
estate which has in its favor the presumption based on any of
the exterior signs.
Q: Is the enumeration exclusive?
A: The enumeration is merely illustrative and not exclusive.
Q: What if there are external signs indicating ownership on
both sides of wall?
A: If the external signs indicate ownership on both sides of
the wall, attention should be directed to the comparative
quality or importance, rather than to the number of signs.
Q: What if there is conflict between an external sign and
title to the wall?
A: When there is a contradiction between an external sign
and a title to the wall, the title must prevail.
Art. 662. The cost of repairs and construction of party walls
and the maintenance of fences, live hedges, ditches, and
drains owned in common, shall be borne by all the owners
of the lands or tenements having the party wall in their
favor, in proportion to the right of each.
Nevertheless, any owner may exempt himself from
contributing to this charge by renouncing his part-
ownership, except when the party wall supports a building
belonging to him. (575)
Q: Who spends for the cost of repairs and construction of
party walls?
A: The partowners. They are obliged to contribute in
proportion to their respective interests.
Q: May an owner refuse to contribute?
A:
GR: Yes, any owner may free himself from the obligation to
contribute by renouncing his rights in the party wall.
XPN: When the party wall actually supports his building, he
cannot refuse to contribute for the expenses or repair and
construction. (Art. 662, NCC)
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XPN to XPN: If the owner renounces his partownership of
the wall, in this case he shall bear the expenses of repairs and
work necessary to prevent any damage which demolition may
cause to the party wall. (Art. 663, NCC)
Art. 663. If the owner of a building, supported by a party
wall desires to demolish the building, he may also renounce
his part-ownership of the wall, but the cost of all repairs and
work necessary to prevent any damage which the
demolition may cause to the party wall, on this occasion
only, shall be borne by him. (576)
Q: What does on this occasion onlymean?
A: On this occasion only means that his liability for damages
is limited to those damages suffered simulateneously, during,
or immediately after, and by reason of the demolition.
Art. 664. Every owner may increase the height of the party
wall, doing at his own expense and paying for any damage
which may be caused by the work, even though such
damage be temporary.
The expenses of maintaining the wall in the part newly
raised or deepened at its foundation shall also be paid for by
him; and, in addition, the indemnity for the increased
expenses which may be necessary for the preservation of
the party wall by reason of the greater height or depth
which has been given it.
If the party wall cannot bear the increased height, the
owner desiring to raise it shall be obliged to reconstruct it at
his own expense and, if for this purpose it be necessary to
make it thicker, he shall give the space required from his
own land. (577)
Increasing the height of party wall
Q: What are the requisites so that the owner may increase
the height of party wall?
A:
1. he must do so at his own expense;
2. he must pay any damage caused thereby even if the
damage is temporary;
3. he must bear the cost of maintaining the portion
added; and
4. he must pay the increased cost of preservation of
the wall.
He shall be obliged to reconstruct the wall at his expense if
necessary for the wall to bear the increased height and if
additional thickness is required, he shall provide the space
therefore from his own land.
___________________________
A person building a common wall must exercise such
reasonable care as will render the inconvenience and loss to
his neighbor as small as practicable.
The additional thickness of the new wall must be placed on
the land of the person building it, but the foundation may
extend equally on each side from the center of the wall.
Art. 665. The other owners who have not contributed in
giving increased height, depth or thickness to the wall may,
nevertheless, acquire the right of part-ownership therein, by
paying proportionally the value of the work at the time of
the acquisition and of the land used for its increased
thickness. (578a)
Art. 666. Every part-owner of a party wall may use it in
proportion to the right he may have in the co-ownership,
without interfering with the common and respective uses by
the other co-owners. (579a)
Each part-owner can use the party wall only in proportion to
his interest. The extent of the right to use is thus made to
correspond to the extent of liability for repairs and
construction provided for in Art. 662.
SECTION 5. - Easement of Light and View
Art. 667. No part-owner may, without the consent of the
others, open through the party wall any window or aperture
of any kind. (580)
Q: State the reason for the above article?
A: It is so because such an act would imply the exercise of the
right of ownership by the use of the entire thickness of the
wall; it would be an invasion of the right of the other part
owners, inasmuch as each owner is entitled only to a
proportional use of the party wall.
Q: What is an easement of light?
A: It is the right to admit light from the neighboring estate by
virtue of the opening of a window or the making of certain
openings.
Q: What is an easement of view?
A: It is the right to make openings or windows, to enjoy the
view through the estate of another and the power to prevent
all constructions or works which would obstruct such view or
make the same difficult; it necessarily includes the easement
of light.
Q: Is it possible to have light only without view?
A: Yes.
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A window or opening in the dividing wall of buildings is an
exterior sign which rebuts the presumption that the wall is a
party wall; one part owner may not, therefore, make any
window or opening of any kind thru a party wall without the
consent of others.
Art. 668. The period of prescription for the acquisition of an
easement of light and view shall be counted:
(1) From the time of the opening of the window, if it is
through a party wall; or
(2) From the time of the formal prohibition upon the
proprietor of the adjoining land or tenement, if the
window is through a wall on the dominant estate. (n)
PRESCRIPTIVE PERIOD FOR ACQUISITION OF EASEMENT OF
LIGHT AND VIEW
Positive easement
It is made thru a party wall or even if made on ones own
wall, if the window is on a balcony or projection extending
over the property. A party wall is not for the opening of
windows; its purpose is to support the buildings of the part
owners. When a window is opened through a party wall, an
apparent and continuous easement is created from the time
of such opening; but there is no true easement as long as the
right to prevent its use exists.
Under Article 668 par.1, the adjoining owner can order the
window closed within ten years from the time of the opening
of the window.
Negative easement
If the window is made through a wall on the dominant
Estate in such a case, the ten year prescriptive period
commences from the time of the formal prohibition upon the
adjoining owner.
The formal prohibition must be an instrument
acknowledged before a notary public.
Art. 669. When the distances in Article 670 are not
observed, the owner of a wall which is not party wall,
adjoining a tenement or piece of land belonging to another,
can make in it openings to admit light at the height of the
ceiling joints or immediately under the ceiling, and of the
size of thirty centimeters square, and, in every case, with an
iron grating imbedded in the wall and with a wire screen.
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made can close
them should he acquire part-ownership thereof, if there be
no stipulation to the contrary.
___________________________
He can also obstruct them by constructing a building on his
land or by raising a wall thereon contiguous to that having
such openings, unless an easement of light has been
acquired. (581a)
OPENINGS AT HEIGHT OF CEILING JOISTS TO ADMIT LIGHT
If the wall is not a party wall, the owner may make an
opening for the purpose of admitting light and air, but not for
view.
Q: What are the restrictions for making an opening for light
and air?
A:
1. the size must not exceed 30 centimeter square;
2. the opening must be at the height of the ceiling
joists or immediately under the ceiling;
3. there must be an iron grating imbedded in the wall;
4. there must be a wire screen
If the wall becomes a party wall a part owner can order the
closure 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 opening unless an easement
of light has been acquired by prescription in which case the
servient owner may not impair the easement.
The openings allowed by this article are for the purpose of
admitting light; hence they can be made only in the walls of
buildings.
Q: What is a ceiling?
A: It is the part of the construction which covers the room
under it and certainly forms one of the essential parts of
every story of the building having several floors.
Q: What are joists?
A: A horizontal timber that are placed upon the tops of the
uprights; beams; restrictions.
Art. 670. No windows, apertures, balconies, or other similar
projections which afford a direct view upon or towards an
adjoining land or tenement can be made, without leaving a
distance of two meters between the wall in which they are
made and such contiguous property.
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of
sixty centimeters.
The nonobservance of these distances does not give rise to
prescription. (582a)
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Art. 671. The distance referred to in the preceding article
shall be measured in cases of direct views from the outer
line of the wall when the openings do not project, from the
outer line of the latter when they do, and in cases of oblique
view from the dividing line between the two properties.
(583)
Art. 672. The provisions of Article 670 are not applicable to
buildings separated by a public way or alley, which is not
less than three meters wide, subject to special regulations
and local ordinances. (584a)
DIRECT AND OBLIQUE VIEWS
Q: What is a direct view?
A: It is that which is obtained from a wall parallel to the
boundary line, such that from the opening in such wall it is
possible to see the adjoining tenement without the necessity
of putting out or turning one's head side.
Q: What is an oblique view?
A: It is obtained from a wall at an angle with the boundary
line; in order to see the adjoining tenement, it is necessary to
turn one's head to the left or to the right.
When windows are opened at a distance less than that
prescribed by this article from the boundary lines, they
constitute unlawful openings, and the owner who opened
them may be ordered by the court to close them.
Q: What are the restrictions as to easement of views?
A:
1. Direct Views: the distance of 2 meters between the wall
and the boundary must be observed; and
2. Oblique Views: (walls perpendicular or at an angle to the
boundary line) must not be 60 cm to the nearest edge of
the window.
Note: Any stipulation to the contrary is void (Art. 673, NCC).
While Article 671 provides the manner of measuring the
distance, the distance for oblique view is much shorter
obviously because of the difficulty of affording a full view of
the adjoining tenement.
An owner can build within the minimum distance or even up
to the dividing line provided no window is opened as
provided in Art. 669.
Prescription may still be acquired as a negative easement
after ten years fromthe time of notarial prohibition.
___________________________
WHERE BUILDINGS SEPARATED BY A PUBLIC WAY
OR ALLEY
The distance provided in Art. 670 is not compulsory where
there is a public way or alley provided that it is not less than
three meters wide, the minimum width is necessary for the
sake of privacy and safety.
Note: The width of the alley is subject to special regulations
and ordinances.
A private alley opened to the use of the general public falls
within the provision of Art. 672.
Art. 673. Whenever by any title a right has been acquired to
have direct views, balconies or belvederes overlooking an
adjoining property, the owner of the servient estate cannot
build thereon at less than a distance of three meters to be
measured in the manner provided in Article 671. Any
stipulation permitting distances less than those prescribed
in Article 670 is void. (585a)
WHERE EASEMENT OF DIRECT VIEW HAS BEEN
ACQUIRED
The title as used in Art. 673 refers to any of the modes of
acquiring easements:
1. Contract;
2. Will;
3. Donation; or
4. prescription
Whenever the easement of direct view has been acquired by
any such title, there is created a true easement. The owner
of the servient estate cannot build thereon at less than a
distance of three meters from the boundary line.
The distance may be increased or decreased by stipulation of
the parties provided that in case of decrease, the minimum
distance of two meters or sixty centimeters prescribed in art.
670 must be observed, otherwise it is void. The said
distances involve considerations of public policy and the
general welfare; hence, they should not be rendered
ineffective by stipulation.
SECTION 6. - Drainage of Buildings
Art. 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the rain
water shall fall on his own land or on a street or public
place, and not on the land of his neighbor, even though the
adjacent land may belong to two or more persons, one of
whom is the owner of the roof. Even if it should fall on his
own land, the owner shall be obliged to collect the water in
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such a way as not to cause damage to the adjacent land or
tenement. (586a)
EASEMENT OF DRAINAGE OF BUILDINGS
Q: What is an easement of drainage of buildings?
A: It is the right to divert or empty the rain waters from ones
own roof or shed to the neighbors estate either drop by drop
or through conduits.
The article does not really create servitude it merely regulates
the use of ones own property by imposing on him the
obligation to collect its rain water so as not to cause damage
to his neighbors, even if he be a co owner of the latter. It
provides an exception to art. 637 which obliges lower estates
to receive the waters which naturally flow from higher
estates.
Note: This article does not establish servitude but merely
regulates the use of one's property.
Art. 675. The owner of a tenement or a piece of land,
subject to the easement of receiving water falling from
roofs, may build in such manner as to receive the water
upon his own roof or give it another outlet in accordance
with local ordinances or customs, and in such a way as not
to cause any nuisance or damage whatever to the dominant
estate. (587)
EASEMENT TO RECEIVE FALLING RAIN
WATERS
The article deals not with a legal or compulsory easement,
but with a voluntary easement to receive rain water falling
from the roof of an adjoining building. It is an application of
Art. 629.
Art. 676. Whenever the yard or court of a house is
surrounded by other houses, and it is not possible to give an
outlet through the house itself to the rain water collected
thereon, the establishment of an easement of drainage can
be demanded, giving an outlet to the water at the point of
the contiguous lands or tenements where its egress may be
easiest, and establishing a conduit for the drainage in such
manner as to cause the least damage to the servient estate,
after payment of the property indemnity. (583)
EASEMENT GIVING OUTLET TO RAIN WATER WHERE HOUSE
SURROUNDED BY OTHER HOUSES
Q: What are the conditions for this easement?
A:
1. There must be no adequate outlet to the rain water
because the yard or court of a house is surrounded by
other houses;
___________________________
2. The outlet to the water must be at the point where
egress is easiest, and establishing a conduit for drainage;
and
3. There must be payment of proper indemnity.
SECTION 7. - Intermediate Distances
and Works for Certain Constructions and Plantings
Art. 677. No constructions can be built or plantings made
near fortified places or fortresses without compliance with
the conditions required in special laws, ordinances, and
regulations relating thereto. (589)
Art. 678. No person shall build any aqueduct, well, sewer,
furnace, forge, chimney, stable, depository of corrosive
substances, machinery, or factory which by reason of its
nature or products is dangerous or noxious, without
observing the distances prescribed by the regulations and
customs of the place, and without making the necessary
protective works, subject, in regard to the manner thereof,
to the conditions prescribed by such regulations. These
prohibitions cannot be altered or renounced by stipulation
on the part of the adjoining proprietors.
In the absence of regulations, such precautions shall be
taken as may be considered necessary, in order to avoid any
damage to the neighboring lands or tenements. (590a)
Art. 679. No trees shall be planted near a tenement or piece
of land belonging to another except at the distance
authorized by the ordinances or customs of the place, and,
in the absence thereof, at a distance of at least two meters
from the dividing line of the estates if tall trees are planted
and at a distance of at least fifty centimeters if shrubs or
small trees are planted.
Every landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or
tenement be uprooted.
The provisions of this article also apply to trees which have
grown spontaneously. (591a)
CONSTRUCTION AND PLANTINGS NEAR
FORTIFIED PLACES
This article establishes an easement in favor of the State. The
general prohibition is dictated by the demands of national
security.
CONSTRUCTION OF AQUEDUCT, WELL, SEWER. ETC.
Such constructions must comply with the distances
prescribed by local regulations and customs of the place;
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The owner must take necessary protective works or other
neighboring estates.
The prohibitions in the article cannot be altered or renounced
by stipulations because they involve considerations of public
policy and general welfare.
PLANTING OF TREES
The article establishes a negative easement. It provides the
minimum distances of trees and shrubs from the boundary
line. They shall be regulated by the local ordinances and in
the absence thereof, by the customs of the place, and in
default thereof, by art, 679.
Q: What is the purpose of Art. 679?
A: The purpose of this article is to prevent the plantings from
encroaching into the neighboring tenements.
Art. 680. If the branches of any tree should extend over a
neighboring estate, tenement, garden or yard, the owner of
the latter shall have the right to demand that they be cut off
insofar as they may spread over his property, and, if it be
the roots of a neighboring tree which should penetrate into
the land of another, the latter may cut them off himself
within his property. (592)
INTRUSIONS OF BRANCHES OR ROOTS INTO
NEIGHBORING ESTATE
The rights given to the adjoining owner by Article 680 do not
prescribe where his inaction is by reason of mere tolerance
unless a notarial prohibition is made in which case the
prescriptive period of a negative easement would begin to
run from the date of such prohibition. But the owner of the
plantings cannot destroy them and the adjacent owner has
no cause to complain.
Q: Can the adjoining estate cut the roots and the branches
without the consent of the owner of the tree?
A: Right to cut roots can be exercised without notice to the
owner of the trees. But as to the branches, it is necessary to
ask that they be cut, and if the owner of the tree does not do
so voluntarily, the court may authorize the neighboring
owner to cut them.
Q: Does this right prescribe?
A: The right to cut does not prescribe so long as the owner
tolerates the branches and roots invading his tenement. But
the moment the owner of the tenement demanded that the
branches be cut off and the owner of the tree refuses to do
so, the prescription starts to run.
Art. 681. Fruits naturally falling upon adjacent land belong
to the owner of said land. (n)
___________________________
Q: What is the basis of this article?
A: This is based on the principle of accession.
FRUITS NATURALLY FALLING
UPON ADJACENT LAND
Q: Who owns the fruits which fall from the adjacent land?
A: Such fruits belong to the owner of the adjacent land to
compensate him for the inconvenience causes by the
branches of trees extending over his land. Note however that
for the adjacent owner to be entitled to the fruits they must
not only fall upon his land but the falling must occur
naturally.
Q: What if the fruits fall on a public property?
A: If the fruits fall on public property, the owner of the tree
retains ownership.
SECTION 8. - Easement Against Nuisance (n)
Art. 682. Every building or piece of land is subject to the
easement which prohibits the proprietor or possessor from
committing nuisance through noise, jarring, offensive odor,
smoke, heat, dust, water, glare and other causes.
Art. 683. Subject to zoning, health, police and other laws
and regulations, factories and shops may be maintained
provided the least possible annoyance is caused to the
neighborhood.
PROPRIETOR OR POSSESSOR OF LAND OR
BUILDING PROHIBITED FROM COMMITTING
NUISANCE
Q: Is an easement against nuisance a positive or negative
one?
A: The Civil Code considers the easement against nuisance as
negative because the proprietor or possessor is prohibited to
do something which he could lawfully do were it not for the
existence of the easement. However, a nuisance involves any
act or omission which is unlawful.
The above articles are more of a restriction on the right of
ownership than a true easement.
Q: What is a nuisance?
A: It is a class of wrongs which arise from unreasonable,
unwarranted, or unlawful use by a person of his own
property, and which produces such material annoyance,
inconvenience, discomfort or harm that the law will presume
a consequent damage.
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The easement against nuisance is not an easement at all but a
restriction upon the ownership and not every limitation on
the right of ownership is an easement.
SECTION 9. - Lateral and Subjacent Support (n)
Sec. 684. No proprietor shall make such excavations upon
his land as to deprive any adjacent land or building of
sufficient lateral or subjacent support.
Q: When is the support considered as lateral?
A: When both the land being supported and the supporting
land which are divided by a vertical plane.
Q: What about subjacent?
A: It is considered as subjacent when the supported land is
above the supporting land is beneath it.
The excavator, instead of observing a sufficient distance to
permit the necessary lateral support of adjoining lot may
support the latter artificially.
Q: What are the remedies for violation of this article?
A:
1. Action for damages- the action may be maintained
against anyone who causes the injury, whether he is
the owner of the land or not;
2. Injunction- the injunctive relief will be granted if the
acts done, or threatened to be done would be
ruinous or irreparable or would impair the just
enjoyment of the property in the future.
Art. 685. Any stipulation or testamentary provision allowing
excavations that cause danger to an adjacent land or
building shall be void.
The reason behind sucj rule is that the same is contrary to
public policy. It may endanger not just property but also
human life.
Art. 686. The legal easement of lateral and subjacent
support is not only for buildings standing at the time the
excavations are made but also for constructions that may be
erected.
Art. 687. Any proprietor intending to make any excavation
contemplated in the three preceding articles shall notify all
owners of adjacent lands.
Q: State the purpose of notice?
___________________________
A: It is to enable the adjoining owners to take the necessary
precautions to protect their lands and the building thereon.
Although the person making the excavation has given notice,
he is bound nevertheless to exercise reasonable care and skill
in excavating on his land so as not to cause damage to the
neighboring property.
The giving of the notice is just an additional precaution; it
does not have the force and effect of a substitute for and
does not absolve the excavator from the duty to exercise
reasonable care to avoid injury to neighboring buildings.
Q: Is the notice required mandatory?
A: Yes except where there is actual knowledge of the
proposed excavation.
PROPRIETOR PROHIBITED FROM MAKING
DANGEROUS EXCAVATIONS
Q: Does the limitation extend to future constructions?
A: Yes.
In any case, the excavation should not deprive the adjacent
land or building of sufficient lateral or subjacent support.
CHAPTER 3
VOLUNTARY EASEMENTS
Art. 688. Every owner of a tenement or piece of land may
establish thereon the easements which he may deem
suitable, and in the manner and form which he may deem
best, provided he does not contravene the laws, public
policy or public order. (594)
Owner of lamd may constitute easement
Since easement involves an act of strict dominium, only the
owner or at least one acting in his name and under his
authority, may establish a voluntary easement.
However, a beneficial owner may establish a temporary
easement consistent with his right as such and subject to
termination upon
Q: When is an easement voluntary?
A: it is voluntary when it is established by the will of the
owners.
Q: Who may constitute voluntary easements?
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A: The owner possessing capacity to encumber property may
constitute voluntary servitude. If there are various owners, all
must consent; but consent once given is not revocable.
Art. 689. The owner of a tenement or piece of land, the
usufruct of which belongs to another, may impose thereon,
without the consent of the usufructuary, any servitudes
which will not injure the right of usufruct. (595)
Where the property held in usufruct
Q: May the owner of a property in usufruct may create
easements thereon without the consent of the
usufructuary?
A: The owner of a property in usufruct may create easements
thereon without the consent of the usufructuary provided
the rights of the latter are not impaired.
Art. 690. Whenever the naked ownership of a tenement or
piece of land belongs to one person and the beneficial
ownership to another, no perpetual voluntary easement
may be established thereon without the consent of both
owners. (596)
Creation of perpetual voluntary easement
Consent of both the naked owner and the beneficial owner is
necessary
Art. 691. In order to impose an easement on an undivided
tenement, or piece of land, the consent of all the co-owners
shall be required.
The consent given by some only, must be held in abeyance
until the last one of all the co-owners shall have expressed
his conformity.
But the consent given by one of the co-owners separately
from the others shall bind the grantor and his successors not
to prevent the exercise of the right granted. (597a)
Imposition of easement on undivided property
The creation of a voluntary easement on property owned in
common requires the unanimous consent of all the co
owners, because it involves an act of alteration and not
merely an alienation of an ideal share of a co owner.
The consent may be given separately or successively.
Art. 692. The title and, in a proper case, the possession of an
easement acquired by prescription shall determine the
rights of the dominant estate and the obligations of the
servient estate. In default thereof, the easement shall be
governed by such provisions of this Title as are applicable
thereto. (598)
___________________________
Q: How are voluntary easements created and what are the
governing rules for such?
A:
1. If created by title (contract, will, etc.), the title governs.
2. If acquired by prescription, it is governed by the
manner or form of possession.
In both cases, the Civil Code will only apply suppletorily.
Art. 693. If the owner of the servient estate should have
bound himself, upon the establishment of the easement, to
bear the cost of the work required for the use and
preservation thereof, he may free himself from this
obligation by renouncing his property to the owner of the
dominant estate. (599)
Where the servient owner bound himself to bear cost of
maintenance of easement
Q: How should abandonment be made to produce the
transmission of ownership over the tenement abandoned?
A: In order to produce the transmission of ownership over
the tenement abandoned, the abandonment or transfer must
be made in the proper juridical form required for the
transmission of ownership of immovable property.
The article applies only where the owner of the servient
estate bound himself to bear the cost of the work required
for the use and preservation of the easement.
He is bound to fulfill the obligation he has contracted. He may
free himself from obligation by renouncing or abandoning his
property to the dominant owner.
In any case, it cannot be tacit or implied, it must follow the
form required by law for the transmission of ownership of
real property
Title VIII. - NUISANCE (n)
Art. 694. A nuisance is any act, omission, establishment,
business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any
public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
Q: What is a nuisance?
A: Any:
1. act,
2. omission,
3. establishment,
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4. business or
5. condition of property or Annoys or offends the senses
6. anything else which:
a. Injures/dangers the health or safety of others The annoyance shall be judged by the effect they produce
b. Shocks, defies or disregards decency or morality upon ordinary persons under normal circumstances, not by
c. Annoys or offends the senses their effect upon the over sensitive, the fastidious or the
d. Hinders or impairs the use of property or discriminating.

NOTE: Art. 596 gives the statutory definition of nuisance in
terms of that which causes the harm or damage, and not of
the harm or damage caused.
Q: Is negligence an ingredient for a nuisance?
A: Negligence is not an essential ingredient of nuisance but to
be liable for nuisance, there must be resulting injury to
another in the enjoyment of his legal rights.
Neither they will be judged by their effect upon those who
are abnormally indiferent to such things nor those who have
become accustomed and learned to endure them without
any inconvenience.
Ex: pumping station which rendered a house uninhabitable
because of the noise produced.
Shocks, defies or disregards decency or morality

Q: When are the rules on negligence applicable in nuisance? Q: What is decency?

A: It has been held that where the acts or omissions A: It is proprietary of behavior or demeanor shown by respect
constituting negligence are the identical acts which, it is and compliance with recognized notions of modesty and
asserted give rise to a cause of action for nuisance, the delicacy.
rules applicable to negligence will be applied.
Q: What is morality?
NEGLIGENCE NUISANCE
Basis Liability is based on Liability attaches A: It is the observance of what is right and the avoidance of
lack of due diligence regardless of the what is evil.
degree of care or skill
exercised to avoid the Ex: a house of prostitution
injury
Abatement no action for Abatement is allowed in Obstructs or interferes with the free passage of any public
abatement. Remedy some cases even highway or street, or any body of water
is only action for without judicial
damages proceedings Any construction which are placed on roads, passage,
Condition act complained was Continuing harm highway, or body of water, to obstruct them is to defeat their
of the act already done which suffered by aggrieved purposes as they are intended for transportation
cause the injury party by the
maintenance of the act Ex: sidewalk vendors, terminals, billboards
or thing which
constitutes as nuisance Hinders or impairs the use of property

Causes of nuisance Anything which hinders or impairs the use of properties is a

nuisance.
Q: What are the causes of nuisance?
Private propeties are the only ones covered.
A:
Injures or endangers the health or safety of others NUISANCE v. TRESPASS

Anything which tends or pose danger to the safery of a NUISANCE TRESPASS

person is a nuisance consists of a use of ones a direct infringement of
property in such a manner as anothers right of property
Even if crops or vegetation or other properties are damaged, to cause injury to the
is still nuisance. property or the right or
interest of another
consequential injury is direct and
immediate

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Kinds of nuisance GR: A swimming pool or water tank is not an attractive
nuisance, for while it is attractive, it is merely an imitation of
Q: What are the kinds of nuisance? the work of nature. Hence, if small children are drowned in
an attractive water tank of another, the owner is not liable
A: even if there be no guards in the premises.

1. According to the number of persons affected: XPN: Swimming pools with dangerous slides

a. Public (or common) nuisance is one which affects the Art. 695. Nuisance is either public or private. A public
community or neighborhood or considerable number of nuisance affects a community or neighborhood or any
persons considerable number of persons, although the extent of the
b. Private nuisance is one which affects an individual or few annoyance, danger or damage upon individuals may be
persons only. unequal. A private nuisance is one that is not included in the
foregoing definition.
2.Other classification of nuisance:
Old classification:
a. Nuisance Per Se that kind of nuisance which is always a 1. Nuisance per se
nuisance. By its nature, it is always a nuisance at all times 2. Nuisance per accidens
and under any circumstances regardless of location of
surroundings. According to the NCC:
b. Nuisance Per Accidens that kind of nuisance by reason of 1. Public
location, surrounding or in the manner it is conducted or 2. Private
managed. 3. Mixed

Doctrine of attractive nuisance Nuisance per se v. Nuisance per accidens

Q: What is the doctrine of attractive nuisance? Nuisance per se
an act, occupation, or
A: One who maintains on his premises dangerous structure which is a nuisance
instrumentalities or appliances of a character likely to attract at all times and under any
children in play, and who fails to exercise ordinary care to circumstances,
prevent children from playing therewith or resorting thereto, regardless of location or
is liable to a child of tender years who is injured thereby, surroundings.
even if the child is technically a trespasser in the premises. A nuisance because of its
inherent qualities, productive
Q: What are the elements of attractive nuisance? of injury or dangerous to life
or property without regard
A: to circumstance
1. It must be attractive As a matter of law
2. Dangerous to children of tender years. Need only be proved in any
locality
Q: In what instance this doctrine not applicable?
A: The doctrine is generally not applicable to bodies of water, May be summarily abated
artificial as well as natural in the absence of some unusual under the law of necessity
condition or artificial feature other than the mere water and
its location.
Q: What is the basis of this doctrine?
Private v. Public nuisance
A: The attractiveness is an invitation to children. This serves
as a safeguard to prevent danger. PRIVATE
One which violates only
Q: Is a swimming pool an attractive nuisance? private rights and produces
damage to but one or few
A: persons, and cannot be said
to be
public
Nuisance per accidens
an act, occupation, or
structure, not a nuisance per
se, but which may become a
nuisance by reason of
circumstances, location, or
surroundings
As a matter of fact
Depends upon its location
and surroundings, the
manner of its conduct or
other circumstances
May be abated only with
reasonable notice to the
person alleged to be
maintaining or doing such
nuisance
PUBLIC
the doing of or the failure to
do something that injuriously
affects safety, health, or
morals of the public, or
works some substantial
annoyance, inconvenience,
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or injury to the public
Affects the individual or a affects the public at large or
limited number of individuals such of them as may come in
only contact with it
actionable, either for their indictable
abatement
or for damages, or both
Q: May a nuisance be both public and private?
A: Yes, it is called mixed nuisance.
Ex: A house washed on to a street railway track: private
nuisance to the railway company and a public nuisance
because it obstructs the street.
Q: Can a lawful business be a nuisance?
A: It may or may not be a nuisance depending upon the
particular circumstances in each case. If the conduct of the
business or even its existence causes grave inconvennience
and discomfort to others, it is a nuisance.
Art. 696. Every successive owner or possessor of property
who fails or refuses to abate a nuisance in that property
started by a former owner or possessor is liable therefor in
the same manner as the one who created it.
Liability of successor of property constituting a nuisance
GR: Only the creator of a nuisance is liable for the damage
resulting therefrom.
However, since the injurious effect of a nuisance is a
continuing one, every successive owner or possessor of
property constituting a nuisance who fails or refuses to abate
it, or permits its continuation has the same liablity as the one
who created it.
Q: What should be done to render the person liable?
A: To render him liable, it is necessary that he has actual
knowledge of the existence of the nuisance and that it is
within his power to abate the same.
Q: What is the rule if there is a concurrent of act or
community of action?
A: If there be concurrent act or community of action in
producing injury, all who participated in the creation or
maintenance of the nuisance are solidarily liable.
Q: What if they acted independently?
A: If two or more persons who create or maintain a private
nuisance act entirely independent of one another, and
without any community of interest, concert of action, or
___________________________
common design, each is liable only so far as his acts
contribute to the injury.
Q: When does the liability of the successor attaches?
A: Upon the taking of possession of the property and having
knowledge of the existence of the nuisance, despite this
knowledge he fails or refuses to remove or abate this
nuisance. He now becomes liable as if he was the one who
created it.
Art. 697. The abatement of a nuisance does not preclude the
right of any person injured to recover damages for its past
existence.
Abatement and recovery of damages
The action to abate and the action to recover damages are
distinct remedies either or both of which the plaintiff may
pursue at his election.
The owner of property abated as a nuisance is not entitled to
compensation unless he can show that the abatement is
unjustified.
Art. 698. Lapse of time cannot legalize any nuisance,
whether public or private.
Effect of lapse of time
GR: the right to bring an action to abate a public or private
nuisance is not extinguished by prescription.
XPN: under the special rule of Art. 613 (2) which expressly
prescribes that easements are extinguished by
obstruction and non user for ten years.
Art. 699. The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any local
ordinance: or
(2) A civil action; or
(3) Abatement, without judicial proceedings.
Q: What are the remedies againts nuisance?
A:
PUBLIC PRIVATE
Prosecution under RPC/ No criminal action;
local ordinance;
Civil action; Civil action;
Abatement without judicia Abatement without judicia
proceedings. proceedings.
RPC has no specific provision punishing nuisnace as a criminal
offense, or as a felony. Yet, nuisnace may result from a
felony; the accused will be proecuted for the specific crime
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punished by the RPC, an ordinance or special penal law, in
addition to an order for the destruction or demolition or
removal of the nuisance.
Q: In the prosecution of the public nuisance, is the question
of intent material?
A: No, it is immaterial.
If the civil action or criminal action is pursued, the plaintiff
can seek for a judgment directing the defendant to abate the
nuisance by himself. If he fails it may be abated through a
writ executed by the sheriff at his expense.
Q: Is criminal prosecution available in case of private
nuisance?
A: No, only for public nuisance.
The defendant on conviction for maintaining a nuisance of a
continuing character, aside from being sentenced to a penalty
may be ordered also to abate the nuisance, and if he fails to
do so, a writ founded on the judgment may issue to the
sheriff requiring him to abate the nuisance at the cost of the
prisoner.
Q: Is the remedy of injunction available?
A: Yes, it may be applied if the indictable nuisance is pressing
or imminent.
Q: What is the basis for extra-judicial abatement?
A: It is valid in the exercise of police power. It is based on
necessity which must be present to justify its exercise.
If property is destroyed or taken as a nuisance, the owner is
not entitled to compensation. And the municipality, officer or
person destroying it is not liable for damages.
Q: Under what instance can extra-judicial abatement be
applied?
A: It can only be applied if what is abated is a nuisance per se
and NOT nuisance per accidens.
Art. 700. The district health officer shall take care that one
or all of the remedies against a public nuisance are availed
of.
Art. 701. If a civil action is brought by reason of the
maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor.
Art. 702. The district health officer shall determine whether
or not abatement, without judicial proceedings, is the best
remedy against a public nuisance.
___________________________
Art. 703. A private person may file an action on account of a
public nuisance, if it is specially injurious to himself.
Ordinarily, the mayor is directed by law to commence the civil
action to eliminate a public nuisance. By way of exception, a
private person is authorized to file a suit to abate a public
nuisance, provided that he has suffered a particular harm or
injury and such harm is different from the harm caused to the
public it should be specifically injurious to him.
In such case, the nuisance is treated as private nuisance.
According to Dean Pineda, unless and until a private person
has sustained a special and definite harm from a public
nuisance, and to him that public nuisance has become a
private nuisance, he has no cause of action against the
creator of the nuisance.
Q: What is the nature of such action?
A: The action may be for injunction, abatement or for
damages.
GR: Public nuisance must be abated in the name of the State,
or at the suit of some proper officer or body as an authorized
officer.
XPN: An individual who has suffered some special damage by
reason of public nuisance may bring such suit for its
abatement.
ROLE OF DISTRICT HEALTH OFFICER AND OTHERS WITH
RESPECT TO PUBLIC NUISANCE
The district health officer is charged with the duty to see to it
that one or all of the remedies against a public nuisance are
availed of; He shall determine whether the third remedy is
the best remedy against a public nuisance.
The remedy must be availed of only with the intervention of
the district health officer.
Q: What is the effect of failure to comply with Art. 720? Is
that a ground for the award for damages?
A: No.
Note: Art. 702 does not empower the district officer to abate
a public nuisance to the exclusion of all other authorities.
Q: How to commence the action?
A: The action must be commenced by the city or municipal
mayor; but a private person may also file an action if the
public nuisance is especially injurious to him.
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RIGHT OF PRIVATE PERSON TO FILE AN ACTION ON
ACCOUNT OF A PUBLIC NUISANCE
A private person may also file a civil action if the public
nuisance is especially injurious to him. Accordingly, such
nuisance becomes to him a private nuisance affecting him in
a special way different from that sustained by the public in
general.
Art. 704. Any private person may abate a public nuisance
which is specially injurious to him by removing, or if
necessary, by destroying the thing which constitutes the
same, without committing a breach of the peace, or doing
unnecessary injury. But it is necessary:
(1) That demand be first made upon the owner or possessor
of the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health
officer and executed with the assistance of the local police;
and
(4) That the value of the destruction does not exceed three
thousand pesos.
CONDITIONS FOR EXTRAJUDICIAL ABATEMENT OF A PUBLIC
NUISANCE
The article states what may be done in abating a public or
private nuisance: the party injured may remove and if
necessary, destroy the thing which constitutes the nuisance,
without committing a breach of the peace, or doing
unnecessary damage.
Q: Does the law require prior giving notice to the owner of
the nuisance?
A: Yes, there is a necessity of giving notice to such person in
order to enable him to abate the nuisance himself.
Q: What are the requisites for the extra-judicial abatement
of public nuisance?
A:
1. Must be specifically injurious to the person affected;
2. No breach of peace or unnecessary injury must be
committed;
3. Demand have been first made upon the owner or
possessor of the property to abate the nuisance;
4. It may be exercised only in cases of urgent or
extreme necessity;
5. The summary abatement should be resorted to
within a reasonable time;
6. After knowledge of the nuisance is acquired;
7. Reasonable notice of intention to abate the nuisance
must be given to the owner;
8. Demand has been rejected;
___________________________
9. Means employed must be reasonable;
10. Abatement must be approved by the district health
officer and executed with the assistance of the local
police;
11. Property must not be destroyed unless it is really
necessary to do so;
12. Rights must always be exercised with the assistance
of the local police; and
13. Value of destruction does not exceed P3000.00.
Q: Distinguish Art 703 and 704?
A: The former refers to the filing of the action by a private
person against a public nuisance while Art. 704 refers to an
abatement of a public nuisance specially injurious to him
without judicial proceedings.
Q: How could abatement be done?
A:
1. By removing the thing which constitutes nuisance;
and
2. By destroying the thing without disturbing the peace
of the community, or doing unnecessary injury.
Art. 705. The remedies against a private nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.
Only private rights are violated by the nuisnace. A private
nuisance only affects a few persons.
Estoppel applied in nuisance
A person who consented, permitted, acquiscence in the
construction of a building and aware of the purposes for
which it was established, is estopped from asserting that the
structure is a nuisance against him.
Art. 706. Any person injured by a private nuisance may
abate it by removing, or if necessary, by destroying the thing
which constitutes the nuisance, without committing a
breach of the peace or doing unnecessary injury. However,
it is indispensable that the procedure for extrajudicial
abatement of a public nuisance by a private person be
followed.
REMEDIES AGAINST A PRIVATE NUISANCE
The remedies provided for in the article are the same as the
remedies against a public nuisance except for the absence of
the first remedy of criminal prosecution.
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Right to damages
This remedy includes the reparation for past injuries and not
an authority to continue the wrong.
Where the nuisance was created or maintained intentionally,
willfully, or maliciously, exemplary or punitive damages may
be allowed.
Available defenses
a. Public necessity- under the pressure of public
necessity what would otherwise constitute a
nuisance may be inflicted upon certain members of
the community;
b. Estoppel;
c. Impossibility of abatement; and
d. Non-existence of the nuisance.
Q: Is legal title necessary to enable to maintain a suit?
A: Ownership of the legal title is not necessary to enable one
to maintain a suit to prevent a threatened nuisance which
would disturb him in the peaceable use and possession of
property on which he resides.
Art. 707. A private person or a public official extrajudicially
abating a nuisance shall be liable for damages:
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by the courts to
be not a real nuisance.
LIABILITY FOR DAMAGES IN CASE OF
EXTRAJUDICIAL ABATEMENT OF NUISANCE
The article provides for two grounds to hold a private or
public official extrajudicially abating a nuisance liable for
damages
Q: What is the purpose of this article?
A: It serves the dual purpose of providing a sort of deterrent
against the improvident or unreasonable resort to the
remedy by unscrupulous parties and at the same time affords
the victim a civil remedy to recover damages without
prejudice to such other remedies granted by law.
Q: How much should be given as damages?
A: The amount of damages will depend on the evidence of
the property owner or possessor of the thing.
Q: What are the remedies available?
A: He may go to court for the determination of the status of
the property. He may ask for the following:
___________________________
a. Replevin
b. injunction (sale, destruction)
c. recover proceeds
d. damages
Title IX. - REGISTRY OF PROPERTY
Art. 708. The Registry of Property has for its object the
inscription or annotation of acts and contracts relating to
the ownership and other rights over immovable property.
(605)
Q: What is the Registry of Property or Register of Deeds?
A: It is the agency of government stationed in every province
or cities headed by a register of deeds under the supervision
of the Land Registration Authority and the Department of
Justce.
It is the public repository of records of public documents
affecting the title to lands in the provinces or city where the
lands are located.
Q: What do you mean by registration?
A: It means the entry made in a book or public registry of
deeds.
Q: What is the purpose of registration?
A: The purpose of registration is merely to notify and protect
the interests of strangers to a given transaction, who may be
ignorant thereof, and the non-registration of the deed
evidencing such transaction does not relieve the parties
thereto of their obligations thereunder.
Registration is useless when what is registered is insufficient
to grant such right as in the case of fictitious or simulated
sale.
NOTE: Register may refer to:
a. the act of recording or annotating
b. the book of registry
c. the office concerned
d. the official concerned
Q: What is the object of registry?
A: It is the inscription and annotation of acts and contracts
relating to the ownership and other rights over immovable
property.
Proceedings for registration of lands are IN REM
A proceeding in rem dealing with a tangible res may be
instituted and carried to judgment without personal service
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upon claimants within the State or notice by name to those
outside of it, and not encounter any provision of either
constitution. Jurisdiction is secured by the power of the court
over the res.
Q: What is the remedy of the registrar refuse to inscribe
document?
A: The aggrieved party may request a formal order of denial
and forthwith file a consulta with the LRA.
Q: What is consulta?
A: It is a kind of appeal to the LRA. The fact that the matter is
in consulta will be inscribed on the title involved. The effect
of this inscription will be binding on the third persons in the
event that the consulta is resolved in favor of the registrant.
Art. 709. The titles of ownership, or of other rights over
immovable property, which are not duly inscribed or
annotated in the Registry of Property shall not prejudice
third persons. (606)
Q: Who are third persons?
A: It refers to persons who are not parties to the act, contract
or deed.
Q: What is the effect of actual knowledge?
A: It is equivalent to registration it binds such person to the
act.
Q: In case of conflict between an unrecorded Deed of Sale of
prior date and a recorded Real Estate Mortgage of the latter
date, which shall prevail?
A: The unrecorded Deed of Sale.
Effects of registration
Q: What are the effects of registration?
A:
1. operates as constructive notice;
2. does not validate or cure defective instrument;
3. cannot bind property where it is legally ineffective;
4. does not vest title
Effect of lack of registration
Q: What is the effect of lack of registration?
A: The purpose of registration is merely to notify and protect
the interests of strangers to a given transaction, but the non-
registration of the deed evidencing such transaction does not
relieve the parties of their obligation thereunder.
___________________________
NOTE: The law always tends to protect registered right to
favor him who registers and, therefore, the registration shall
prejudice those who have not registered.
Art. 710. The books in the Registry of Property shall be
public for those who have a known interest in ascertaining
the status of the immovables or real rights annotated or
inscribed therein. (607)
POWER OF REGISTER OF DEEDS AS
CUSTODIAN OF REGISTRY BOOKS
The Register of Deeds has inherent power to control the
office and the records under his custody and has some
discretion to exercise as to manner in which persons desiring
to inspect, examine, or copy the records may exercise their
rights; carry with it the power to prohibit, except perhaps,
when it is clear that the purpose of the examination is
unlawful.
It is not the prerogative of registration officers having custody
of records to see that the information which the records
contain is not flaunted before public gaze;
If it be wrong to publish the contents of the records, it is the
legislature and not the officials having custody thereof which
is called upon to devise a remedy.
Q: What do you mean by public?
A: It is an all inclusive term. It covers every person whose
purpose of examinaion of a recorded act or transaction is not
unlawful or arises from a sheer idle curiosity.
NOTE: Interested parties may secure upon payment of the
required fee, certified true copies of titles and other records
in the registry.
The register or his representative may also be subpoenad to
appear and testify in court and bring certain titles and other
related documents.
Art. 711. For determining what titles are subject to
inscription or annotation, as well as the form, effects, and
cancellation of inscriptions and annotations, the manner of
keeping the books in the Registry, and the value of the
entries contained in said books, the provisions of the
Mortgage Law, the Land Registration Act, and other special
laws shall govern. (608a)
Other special laws may include special laws governing the
registration of movable property in a registry office
Ex:
a. Chattel Mortgage Law,
b. the Ship Mortgage Decree and
c. the Land Transportation and Traffic Code.
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In succession, the title is the mode. Hereditary rights are
transferred from the moment of death of the decedent.
BOOK III Delivery is not a condition precedent to transfer of
DIFFERENT MODES OF ACQUIRING OWNERSHIP ownership. However, actual possession may only be
exercised after delivery.
PRELIMINARY PROVISION
Real right v. Personal right
Art. 712. Ownership is acquired by occupation and by
intellectual creation. Q: What is a real right (Jus in re)?

Ownership and other real rights over property are acquired A: It is the power of a person to obtain certain financial or
and transmitted by law, by donation, by estate and economic advantages over a specific thing; a power
intestate succession, and in consequence of certain enforceable against the whole world whether or not he
contracts, by tradition. possesses the thing.

They may also be acquired by means of prescription. (609a) Q: What is a personal right (Jus in personam)?

Mode v. Title A: It is the power of a person to demand from another the

fulfillment of a prestation to give, to do or not to do.
Q: What is a mode?
REAL RIGHT PERSONAL RIGHT
A: It is the specific cause which produces them as a result of Creation
the presence of a special condition of things, of the capacity Created both by title and Created by title, except when
and intention of persons, and of the fulfillment of the mode. title is also the mode as in
requisites established by law. succession.
Created directly over a thing.
It is the process of acquiring or transferring ownership. It Exercised through another
directly produces a real right. against whom an action is
brought.
Q: What is title? Limit
It is limited to usefulness, No such limitation
A: It is the juridical act, right or condition which gives the value or productivity.
means to their acquisition but which in itself is insufficient to Object
produce them.
Specific object and generally Covers all present and future
corporeal. property of debtor. Applies
It is not ordinarily sufficient to convey ownership, but gives a
to incorporeal or intangible
juridical justification for a mode; that is, it provides the cause
things.
for the acquisition of ownership. Serves merely to give an
Subjects
opportunity for the existence of a real right; meantime only a
personal right exists. Definite active subject There is an active subject
(owner). (creditor). There is a definite
passive subject (debtor).
MODE TITLE
Indefinite passive subject
Directly and immediately Serves merely to give the
which is the whole world.
produces a real right; occasion for its acquisition or
Enforceability
existence;
Enforceable against the Enforceable only against the
Cause; Means;
whole world. original debtor.
Proximate cause; Remote cause;
Extinguishment
The essence of the right The means whereby that
Extinguished by loss or Not extinguished. Claim for
which is to be created or essence is transmitted,
destruction. damages may still be
transmitted.
instituted.
Example: In a contract of sale, the sale is the title by the
Q: What are the different modes of acquiring ownership?
virtue of such title buyer may now compel delievery from the
seller. It is the delivery or tradition which transfers
A:
ownership. Tradition is a mode.
1. occupation;
2. law;
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3. donation; TRADITION
4. tradition as a consequence of a certain contracts;
5. intellectual creation; As a consequence of certain contracts like sale, barter,
6. prescription; and assignment, simple loan or mutuum.
7. succession.
Tradition alone does not confer ownership but a
Q: What are the different modes of acquiring other real consequence of contract comleted by tradition or delivery.
rights?
NOTE: Not all contracts may result in the transmission of
A: ownership like deposit or commodatum.

1. law; 1. Real tradition- actual or physical delivery if it is

2. donation; personal property. If realty is involved then actual
3. tradition as a consequence of a certain contracts; delivery is manifested by actual entry or occupying
4. prescription; and the land.
5. succession.
2. Constructive tradition
Q: What are the classification of modes of acquiring
ownership? a. Traditio symbolica- parties make use of a token or
symbol to represent the thing delivered
A: b. Traditio longa manu-by mere pointing of a property
with consent of the parties if the thing sold cannot
1. original modes- independent of any pre-existing or be transferred to the possession of the vendee at
preceding title or right of another: the time of the sale
c. Traditio brevi manu- when the vendee already has
a. occupation possession of the thing sold by virtue of another title
b. intellectual creation d. Traditio constitutum possessorium- when the
c. acquisitive prescription vendor continues in possession of the thing sold not
as owner but in some other capacity
2. derivative modes- those which arise of are dependent e. Quasi-tradition- exercise of the right of the grantee
upon pre-existing or preceding title or right of title of with the consent of the grantor
another person: f. Tradicion por ministerio de la ley- delivery by
operation of law
a. donation g. Tradition by public instrument
b. succession
c. extinctive prescription Requisites of constructive delivery
d. tradition as a consequence of certain contracts
Q: What are the requisites for a constructive delivery?
Q: Is registration a mode of acquirng ownership?
A:
A: No. it cannot confer ownership. 1. Right transmiyyed should have previosly existed in
the patrimony of grantor
Q: Is accession a mode of acquiring ownership? 2. Transmisison should be by just title
3. Grantor and grantee should have intention and
A: No because it presupposes previous ownership of the capacity to transmit and acquire
principal thing. 4. Transmission should be manifested by some act
which should be physical, symbolical or legal.
LAW
Prescription
Law as a mode of acquiring ownership should be interpreted
to apply to situations where ownership is vested Q: What is prescription?
independently of the other modes of acquisition.
A: It is a mode of acquiring ownership and other real rights
Art. 445- improvements on the land of another; through the mere lapse of time and under conditions laid
Art. 447-alluvium; down by law.
Art. 461- abandoned river beds; and
Art. 681-falling fruits into the tenement of another.

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Q: What are the 2 kinds of prescription? 3. which must be Susceptible of appropriation by nature
4. The thing must be Without an owner
Acquisitive Extinctive 5. There must be an Intention to appropriate.
Expressly vest the property Merely a statute of limitaion,
and raises a new title in the it does nothing more than Q: Distinguish occupation from possession.
occupant bar the right of action of a
previous owner A:
The act of the processor is The previous owners neglect
the cause is the cause OCCUPATION POSSESSION
As regards acquisition of ownership
Q: Is the acquisition of ownership or other real rights Mode of acquiring ownership Merely raises the
through prescription retroactive? presumption of ownership
when exercised in the
A: Yes. Once the period is completed, the new owner is concept of owner
considered as having acquired the thing or right from the As to prpoperty involved
moment the period began. Involves only corporeal Any kind of property
personal property
Modes of extinguising ownership As regards ownership of the thing by another
Requires that the object be The property may be owned
a. Absolute extinguishment without an owner by somebody
1. Physical loss or destruction As regards the intent to acquire
2. Legal loss There must be an intent to May be had in the concept of
acquire ownership a mere holder
b. Relative only when certain persons for others may As regards possession
acquire their ownership May not take place w/o May exist w/o occupation
1. Law some form of possession
2. Succession As to period
3. Tradition Short duration Generally longer
4. Donation As to leading to another mode of acquisition
5. Abandonment
Cannot lead to another mode May lead to another mode
6. Destruction of the prior title or right
of acquisition prescription
(fulfillment of resolutory condition, rescission,
annulment, expropriation)
Q: What are the kinds of property acquired by occupation?
7. Prescription
A:
1. Animals that are the object of hunting and fishing
2. Hidden treasures-only if there is no known owner
Title I. - OCCUPATION thereof. This is possible only if there is no known owner
thereof. This is possible only if the treasure is founding
Art. 713. Things appropriable by nature which are without places or things without owners.
an owner, such as animals that are the object of hunting and 3. Abandoned movbles- a thing is abandoned when:
fishing, hidden treasure and abandoned movables, are a. The expectation to recover is gone (spes
acquired by occupation. (610) recuperandi)
b. The intent to return or have it returned is given up
Q: What is occupation? (spes rivertandi)

A: Acquisition of ownership by seizing corporeal things that Art. 714. The ownership of a piece of land cannot be
have no owner, made with the intention of aquiring them, acquired by occupation. (n)
and accomplished according to legal rules (Sanchez Roman).
It is a unilateral act through the material apprehension of a Q: What is the reason for this?
thing which is limited to those without an owner.
A: When the land is without an owner, it pertains to the State
Q: What are the requisites of occupation? following the Regalian Doctrine.

A: Q: What is the rule as to abandoned land?

A: According to Sen. Tolentino, an absurdity may arise from a
1. There must be Seizure of a thing, literal interpretation of this article. Lands privately owned ans
2. which must be a Corporeal personal property,
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
abandoned subsequently will perpetually become res nullius,
even the state cannot acquire them by occupation.
Technically, they could not be acquired by prescription
because prescription presupposes the extinguishment of a
pre-existing right which is not present in abandoned
property.
Since the Code Commission inserted this article on the
supposition that when land is abandoned, it pertains tp the
State. Unlike other jurisdiction, in the Philippines, there is no
law to the effect that private lands abandoned by its owners
automatically revert back to the State.
J. Paras: This article is applicable to lands belonging to the
State without private owners and those previosuly owned but
subsequently abandoned as implied from the express word of
the law. No absurdity may arise because privately owned
lands reverted back to the State become the patrimonial
property of the State which is susceptible of acquisition
through acquisitive prescription.
Q: Distinguish prescription from occupation.
A:
PRESCRIPTION OCCUPATION
Derivative modesomebody Oringinal mode-no previous
else was the owner owner
Longer period of possession Shorter period
is required
Art. 715. The right to hunt and to fish is regulated by special
laws. (611)
The special law which regulates hunting to protect animal life
are Act No. 2590 as amended by Act. No. 3770, Act. No. 4003
and C.A. No. 491.
On the other hand, the special Law governing fishing is P.D.
No. 704 otherwise known as the Fisheries Decree of 1975.
Hunting and fishing may be regulated by a municipal
corporation or local government unit under a provision of law
or authority granted by Congress, being in this case a
delegation of the States authority to the corporation.
Art. 716. The owner of a swarm of bees shall have a right to
pursue them to another's land, indemnifying the possessor
of the latter for the damage. If the owner has not pursued
the swarm, or ceases to do so within two consecutive days,
the possessor of the land may occupy or retain the same.
The owner of domesticated animals may also claim them
within twenty days to be counted from their occupation by
another person. This period having expired, they shall
pertain to him who has caught and kept them. (612a)
Occupation of a swarm of bees
___________________________
The owner of a swarm of bees that went to another' land
shall lose ownership if he has not pursued the same within
two consecutive days after it left his property, or after
pursuing the same, he ceases to do so within the same
period. In such a case, the possessor or owner of the land
may occupy or retain the bees
Occupation of domesticated animals
A domesticated animal which has not strayed or been
abandoned cannot be acquired by occupation by a person to
whose custody it was entrusted. Neither does the provision
apply to a case where a person has found a domestic animal
and kept it for a number of years not knowing its owner. The
period of two days and twenty days are not periods of
limitation, but conditions precedent to recovery.
Art. 717. Pigeons and fish which from their respective
breeding places pass to another pertaining to a different
owner shall belong to the latter, provided they have not
been enticed by some article of fraud. (613a)
Occupation of pigeons and fish
The article does not refer to wild pigeons and fish in a state of
liberty or that live naturally independent of man.
Their occupation is regulated by special laws on hunting and
fishing. What is contemplated here are pigeons and fish
considered as domesticated animals subject to the control of
man in private breeding places.
Art. 718. He who by chance discovers hidden treasure in
another's property shall have the right granted him in article
438 of this Code. (614)
Q: What is the rule as regards the finder when 2 or more
strangers are involved?
A: The one who actually struck the thing (ground or anything)
or found the spot, whilch exposed the treasure to view is the
finder.
The discovery of the hidden treasure must be by chance-
there must be no deliberate inrtention or design to search for
the treasure.
Q: What is the rule if the finder is given an express
permission by the owner to search?
A: The finder is not entitled to the shre in the treasure unless
the parties so stipulated.
Q: What is the rule if the finder is given an express
permission by the owner to make an investigtaion?
A: If treasure is found he is not covered by Art. 718 because
the discovery was not by chance.
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Q: Is the finder entitled to anything for his services?
A: There are 2 views on the matter:
1. The permission is to be interpreted to be a renunciation
of the right of the land owner and so the finder gets all.
According to Sen. Tolentino, while the finding is not by
chance the finder should be given a share on the basis of
implied contract or principle of unjust enrichment; and
2. According to Dean Pineda, there must first be a
distinction:
If the finder was engaged for the investigation of the propety
for a fee, then he shall receive only the amount stipulated
because the contract is the law between the parties.
If there is no contract then, the law on unjust enrichment is
applicable leaving to the court the reasonable value of the
work done by the finder.
Art. 719. Whoever finds a movable, which is not treasure,
must return it to its previous possessor. If the latter is
unknown, the finder shall immediately deposit it with the
mayor of the city or municipality where the finding has
taken place.
The finding shall be publicly announced by the mayor for
two consecutive weeks in the way he deems best.
If the movable cannot be kept without deterioration, or
without expenses which considerably diminish its value, it
shall be sold at public auction eight days after the
publication.
Six months from the publication having elapsed without the
owner having appeared, the thing found, or its value, shall
be awarded to the finder. The finder and the owner shall be
obliged, as the case may be, to reimburse the expenses.
(615a)
Q: What is a lost thing?
A:It is the one previously under the lawful possession and
control of a person but is now without any possessor.
However, it is not abondoned property.
Finders keeper law (U.S.)
The finding of the movable may be by chance or by search as
the law did not make any distintion, unlike in hidden
treasure.
Q: What are the duties of the finder?
A:
___________________________
1. If the previous possessor is known-return it to the
previous possessor, who need not be the owner.
2. If he does not know its previous possessor-
immediately deposit it with the mayor of the city or
municipality where the thing was found.
Q: In such case, what is the duty of the mayor?
A: The mayor must in turn publicly announce the finding in
the manner he may deem best (newspaper, tv
announcement).
Preservation of the thing
If the thing can be kept without deterioration- the mayor
must keep it in custody until the previous possessor appears
in time to claim the property or until it is awarded to the
finder.
If the thing cannot be kept without deterioration- it should be
sold at public auction 8 days after the publication following
the publication of the intended auction sale.
Award of the finder
If the owner or possessor did not appear after 6 months-
there being an implied abandonment- the thing found or the
value of its proceeds if there was auction sale shall be
awarded to the finder deducting the expenses for publication.
Q: What if the owner has appeared?
A: The finder shall receive the award under Art. 720 which is
1/10 of the sum price of the thing found.
Q: What is the consequence of violating the article?
A: The finder shall be guilty of the crime of theft.
The obligation to return is not limited to the first finder, it
extends to the successor who has knowledge of the finding.
Art. 720. If the owner should appear in time, he shall be
obliged to pay, as a reward to the finder, one-tenth of the
sum or of the price of the thing found. (616a)
Q: What is the obligation of the owner who appeared?
A:
1. To give reward to the finder-amounting to the 1/10
of the sum or value of the thing;
2. To reimburse the finder-of the necessary expenses
for the preservation and location of the thing;
3. To reimburse the expenses for publication.
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Title II. - INTELLECTUAL CREATION
Art. 721. By intellectual creation, the following persons
acquire ownership:
(1) The author with regard to his literary, dramatic,
historical, legal, philosophical, scientific or other work;
(2) The composer; as to his musical composition;
(3) The painter, sculptor, or other artist, with respect to the
product of his art;
(4) The scientist or technologist or any other person with
regard to his discovery or invention. (n)
State policy
Section 13. The State shall protect and secure the exclusive
rights of scientists, inventors, artists, and other gifted
citizens to their intellectual property and creations,
particularly when beneficial to the people, for such period
as may be provided by law. (Sec. 13, Art XIV, The 1987
Constitution)
Art. 722. The author and the composer, mentioned in Nos. 1
and 2 of the preceding article, shall have the ownership of
their creations even before the publication of the same.
Once their works are published, their rights are governed by
the Copyright laws.
The painter, sculptor or other artist shall have dominion
over the product of his art even before it is copyrighted.
The scientist or technologist has the ownership of his
discovery or invention even before it is patented. (n)
Art. 723. Letters and other private communications in
writing are owned by the person to whom they are
addressed and delivered, but they cannot be published or
disseminated without the consent of the writer or his heirs.
However, the court may authorize their publication or
dissemination if the public good or the interest of justice so
requires. (n)
Dual interests or property rights in the letter:
1. Intellectual property , consisting of thoughts and the
ideas and their form of expression contained in the
letter;
2. The material or physical thing, which is the paper and the
impression made thereon by the mechanical means of
writing that has been employed.
The contents of letters are objects of a right of intellectual
property, in the same manner as any product of the mind.
Art. 724. Special laws govern copyright and patent. (429a)
___________________________
Title III. - DONATION
CHAPTER 1
NATURE OF DONATIONS
Art. 725. Donation is an act of liberality whereby a person
disposes gratuitously of a thing or right in favor of another,
who accepts it. (618a)
Q: How is donation perfected?
A: It is perfected from the moment the donor knows of the
acceptance by the donee (Article 734). Once a donation is
accepted, it cannot be revoked without the consent of the
donee except on grounds provided by law.
Q: What are the requisites for a valid donation?
A:
1. Donor must have the capacity to make the donation;
2. He must have donative intent (animus donandi);
3. There must be delivery in certain cases;
4. Donee must accept or consent to the donation during
the lifetime of the donor and of the donee in case of
donation inter vivos; whereas in case of donation mortis
causa, acceptance is made after donors death because
they partake of a will.
Q: Is acceptance necessary?
A: Yes, it is necessary to make the donation effective.
Q: Who makes the acceptance?
A: It may be made by the donee himself or thru an agent with
special power of attorney otherwise, donation shall be void.
Q: What is the reason behind the above rule?
A: The donee may not want to accept the donors liberality or
if the donation is onerous, he may not agree with the burden
imposed.
Q: What is the effect of donation made to an unborn child?
A: Donations made to conceived and unborn children may be
accepted by persons who legally represent them if they were
already born (Art. 742).
Q: What is the effect of donation made to incapacitated
persons?
A: Donations made to incapacitated persons shall be void
though simulated under the guise of another contract or thru
a person who is interposed.
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Kinds of donation Art. 726. When a person gives to another a thing or right on
account of the latter's merits or of the services rendered by
1. According to the time of taking effect him to the donor, provided they do not constitute a
demandable debt, or when the gift imposes upon the donee
a. Inter vivos- those which take effetc during the lifetime of a burden which is less than the value of the thing given,
the donor; and there is also a donation. (619)
b. Mortis causa- those which take effect only upon the
death of the donor. Remuneratory donations

2. According to the motive or cause Q: What is a remuneratory donation?

a. Simple donation- the cause is the liberality of the donor; A: Those whose consideratuin and purpose is to remunerate
b. past benefitsm merits, merits, services, alrady rendered by
st
c. Remuneratory (of the 1 kind of pure renumeratory)- the the donee to the donor, provided, the same does not
purpose is to reward past services with no strings constitute a demandable debt.
attached. The services do not constitute a demandable
debt. The form shall be that of donations regardless of Q: What do you mean by not demandable debt?
the value of the past services compared to the value of
the donation; A: It means services rendered did not create any obligation
enforceable against the donor.
nd
d. Remuneratory (of the 2 kind) modal donations- the
purpos is to: Ex: a person who has saved another from drowning

c.1 reward future services; or Modal donations

c.2 because of future charges or burdens to be imposed
on the donee. Q: What are modal donations?

The value of the future services, charges or burdens is A: They are donations which impose a charge or a burden on
less than the value of the donation. The form shall follow the donee. The mode or burden is a mere restriction on the
the form of contracts if it is onerous but if the same is benefit conferred upon the donee. It does not affect the
simple, they shall follow the form of donations. rights of the donee.

Note: Illegal or impossible conditions in simple and Q: What is a mode?

remuneratory donations shall be considered as not
imposed.
e. Conditional donations- donations which are subject to
certain conditions the fulfillment or non-fulfillment of
which affect the rights of the donee; and
f. Onerous donations- the burdens, charges or services are
equal in value to that of the donation. This is not really
donation and the form follows that of contracts.
Q: What are the limitations upon property which may be
donated inter vivos?
A:
A: It is the charge or burden imposed in a modal donation
which is lesser than the value of the thing donated.
Art. 727. Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not
imposed. (n)
Effect of Illegal or impossible conditions
1. When condition is not deemed imposed- the rule on
testamentary disposition is followed. The donation is
considered simple.
2. When donation rendered void- being contractual in
nature, the rule applicable would be found in art. 1183

1. Donee must reserve sufficient means for his support Art. 728. Donations which are to take effect upon the death
and for his relatives who are entitled top be of the donor partake of the nature of testamentary
supported by him; provisions, and shall be governed by the rules established in
2. Donation cannot comprehend future property the Title on Succession. (620)
except future husband and wife (Art. 84 of the
Family Code); and Art. 729. When the donor intends that the donation shall
3. No person may give bby way of donation more than take effect during the lifetime of the donor, though the
what he may give by will. property shall not be delivered till after the donor's death,

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Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
this shall be a donation inter vivos. The fruits of the
property from the time of the acceptance of the donation, DONATION INTER VIVOS SUBJECT TO A
shall pertain to the donee, unless the donor provides RESOLUTORY CONDITON
otherwise. (n)
A donation subject to a resolutory condition takes effect
Inter vivos v. Mortis causa immediately but shall become inefficacious upon the
happening of the event which constitutes the condition.
INTER VIVOS MORTIS CAUSA
Takes effect independently Takes effect upon death of Even if the donation is subject to the resolutory condition of
of the donors death donor the donors survival, the donation is still inter vivos.
Title conveyed to the donee Title conveyed upon donors
before donors death death Art. 732. Donations which are to take effect inter vivos shall
Generally irrevocable during Always revocable be governed by the general provisions on contracts and
donors lifetime obligations in all that is not determined in this Title. (621)
Must comply with the Must comply with the
formalities required by Arts. formalities required by law Donations inter vivos are donations of property that are not
748 and 749 of the Code for the execution of wills mortis causa. They include the simple, remunerative, modal
Acceptance during donors Acceptance should ne made and onerous, whether or not subject to any condition or
lifetime after donors death term.
Donors tax is payable Estate tax is payable
Art. 733. Donations with an onerous cause shall be
In case of doubt the conveyance shall be deemed an inter governed by the rules on contracts and remuneratory
vivos rather than mortis causa, in order to avoid uncertainty donations by the provisions of the present Title as regards
as to the ownership of the property subject of a deed. that portion which exceeds the value of the burden
imposed. (622)
The nature of donation is not determined by the title given to
it by the donor but by what is expressed therein. RULES GOVERNING ONEROUS DONATIONS OR
ONEROUS PORTIONS OF DONATIONS
Art. 730. The fixing of an event or the imposition of a
suspensive condition, which may take place beyond the 1. Alienations by onerous title such as sale, may be
natural expectation of life of the donor, does not destroy considered a donation to the extent that the value of the
the nature of the act as a donation inter vivos, unless a thing sold exceeds the price paid;
contrary intention appears. (n) 2. The article makes the rules of contract directly applicable
to onerous donations and remuneratory donations as to the
DONATION INTER VIVOS SUBJECT TO onerous portions therof;
SUSPENSIVE CONDITION 3. The remuneratory donations referred to by the article are
the modal donations or those which impose upon the donee
The article contemplates a situation where the donor intends a burden which is less than the value of the thing given; as
the donation to take effect during his lifetime but he imposes regards that portion which exceeds the value of the burden, it
a suspensive condition which may or may not take place shall be governed by the provisions on donations;
beyond his lifetime. 4. Modal donations are to be distinguished from the
remuneratory donations proper which consist of those made
The fact that the event happens or the condition is fulfilled in consideration of services rendered by the donee to the
after the donors death does not change the nature of the act donor;
as a donation inter vivos. 5. Thereis no burden imposed on remuneratory donations;
6. If a burden is imposed, it becomes onerous as regards the
The exception is when the donor really intended that the value of the burden.
donation should take effect after his death.
Art. 734. The donation is perfected from the moment the
Art. 731. When a person donates something, subject to the donor knows of the acceptance by the donee. (623)
resolutory condition of the donor's survival, there is a
donation inter vivos. (n) PERFECTION OF DONATION

1. Necessity of acceptance- must be made during the lifetime

of the donor;
2. Notice of acceptance perfection takes place, not from the
time of acceptance by the donee but from the time it is made
known, actually or constructively, to the donor;

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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
3. Revocation before perfection once it is perfected it
cannot be revoked without the consent of the donee except
on grounds provided by law;
4. If the donor revokes the donation before learning of the
acceptance by the donee, there is no donation.
CHAPTER 2
PERSONS WHO MAY GIVE OR RECEIVE A DONATION
Art. 735. All persons who may contract and dispose of their
property may make a donation. (624)
Q: What are the requirements to be a donor?
A: The article requires that the donor must have both the:
a. capacity to contract and;
b. the capacity to dispose of his property in order that
he may make a donation
Q: What is the reason for this?
A: Donation inter vivos are contractual in nature and are
mode of alienation of property. Moreover, it is a mode of
alienation of property.
Q: Explain the concept of capacity under this article.
A: Capacity shall be determined as of the time of the making
of donation. Making of donation shall be construed to mean
perfection.
Q: What is the rule with regard the done?
A: All those who are not specially disqualified by law
therefore may accept donations.
NOTE: If donation is made by a person with restricted
capacity, then, it is voidable because the consent of the
donor is defective.
For natural persons, he should be at the age of majority. On
the other hand, for juridical persons, the same must be
authorized under its articles to donate.
Q: May an unborn child be a donee? A donor?
A: An unborn child may be a donee but not a donor.
As a donee, donations made to conceived and unborn
children may be accepted by those persons who would legally
represent them if they were already born.
NOTE: If the conceived child did not become a person, the
donation is null and void. An unborn child cannot be a donor
because it is essential for a person to be able to make a
donation, he must have full civil capacity.
___________________________
Art. 736. Guardians and trustees cannot donate the
property entrusted to them. (n)
DONATION BY A GUARDIAN OR TRUSTEE
OF WARDS PROPERTY
1. Where donation is simple:
Guardians and trustees cannot be donors of their wards
properties for the simple reason that they are not the owners
of the same.
2. Where donation is onerous:
The prohibition, however, is not absolute; with respect to the
trustee, donation is permitted notwithstanding that the
trustee receives nothing in exchange directly, if the donation
is onerous and is beneficial to the benefiaciary,
Art. 737. The donor's capacity shall be determined as of the
time of the making of the donation. (n)
Q: When is the possession of capacity to contract by the
donor determined?
A: His capacity shall be determined as of the time of the
making of donation. (Art. 737, NCC)
Note: Making of donation shall be construed to mean
perfection.
Art. 738. All those who are not specially disqualified by law
therefor may accept donations. (625)
NOTE: A donee need not be sui juris, with complete legal
capacity to bind himself by contract. As long as he is not
specially disqualified by law, he may accept donations
a. Those disqualified under Art. 739
b. Alien corporations as donee of lands
Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the same
criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descedants
and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of
nullity may be brought by the spouse of the donor or donee;
and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action. (n)
DONATIONS VOID ON MORAL GROUNDS
Q: What is the reason for this disqualifications?
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A: The article is based on considerations of morality and
public policy. The prohibitions mentioned in the article apply
to testamentary provisions and to life insurance.
NOTE: The term wife in the 3rd paragraph shall be
interpreted to mean spouse so as to include the husband.
Art. 2012 provides that any person who is forbidden from
receiving any donation under Art. 739 cannot be named
beneficiary of a life insurance policy by the person who
cannot make any donation to him, according to said article.
Art. 740. Incapacity to succeed by will shall be applicable to
donations inter vivos. (n)
ABSOLUTE DISQUALIFICATION
Art. 1028. The prohibitions mentioned in article 739, concerning donations
inter vivos shall apply to testamentary provisions. (n)
Art. 919. The following shall be sufficient causes for the disinheritance of
children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if the
accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parent or ascendant
who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or
descendant;
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil
interdiction. (756, 853, 674a)
Art. 920. The following shall be sufficient causes for the disinheritance of
parents or ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their children or induced their
daughters to live a corrupt or immoral life, or attempted against their
virtue;
(2) When the parent or ascendant has been convicted of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants;
(3) When the parent or ascendant has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if the
accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery or
concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change one already
made;
___________________________
(6) The loss of parental authority for causes specified in this Code;
(7) The refusal to support the children or descendants without justifiable
cause;
(8) An attempt by one of the parents against the life of the other, unless
there has been a reconciliation between them. (756, 854, 674a)
Art. 921. The following shall be sufficient causes for disinheriting a spouse:
(1) When the spouse has been convicted of an attempt against the life of
the testator, his or her descendants, or ascendants;
(2) When the spouse has accused the testator of a crime for which the law
prescribes imprisonment of six years or more, and the accusation has been
found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue influence
cause the testator to make a will or to change one already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of parental authority;
(6) Unjustifiable refusal to support the children or the other spouse. (756,
855, 674a)
Art. 919.
RELATIVE INCAPACITY
Art. 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator during his last
illness, or the minister of the gospel who extended spiritual aid to him
during the same period;
(2) The relatives of such priest or minister of the gospel within the fourth
degree, the church, order, chapter, community, organization, or institution
to which such priest or minister may belong;
(3) A guardian with respect to testamentary dispositions given by a ward in
his favor before the final accounts of the guardianship have been approved,
even if the testator should die after the approval thereof; nevertheless, any
provision made by the ward in favor of the guardian when the latter is his
ascendant, descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the spouse, parents, or
children, or any one claiming under such witness, spouse, parents, or
children;
(5) Any physician, surgeon, nurse, health officer or druggist who took care
of the testator during his last illness;
(6) Individuals, associations and corporations not permitted by law to
inherit. (745, 752, 753, 754a)
Art. 1032. The following are incapable of succeeding by reason of
unworthiness:
(1) Parents who have abandoned their children or induced their daughters
to lead a corrupt or immoral life, or attempted against their virtue;
(2) Any person who has been convicted of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been
found groundless;
(4) Any heir of full age who, having knowledge of the violent death of the
testator, should fail to report it to an officer of the law within a month,
unless the authorities have already taken action; this prohibition shall not
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
apply to cases wherein, according to law, there is no obligation to make an
accusation;
(5) Any person convicted of adultery or concubinage with the spouse of the
testator;
(6) Any person who by fraud, violence, intimidation, or undue influence
should cause the testator to make a will or to change one already made;
(7) Any person who by the same means prevents another from making a
will, or from revoking one already made, or who supplants, conceals, or
alters the latter's will;
(8) Any person who falsifies or forges a supposed will of the decedent. (756,
673, 674a)
Art. 1033. The cause of unworthiness shall be without effect if the testator
had knowledge thereof at the time he made the will, or if, having known of
them subsequently, he should condone them in writing. (757a)
Art. 741. Minors and others who cannot enter into a contract may become
donees but acceptance shall be done through their parents or legal
representatives. (626a)
DONATIONS TO MINORS AND OTHERS WITHOUT
CAPACITY TO CONTRACT
The article does not make any distinction. If the reason for
requiring acceptance through the parents or legal
representative is the lack of capacity of the donee to give
consent, it is clear that the donee may not validly accept a
donation although it imposes no burden.
In any case, when a formal or written acceptance is required
by the donor, such acceptance must be made by the parents
or legal representative.
Art. 742. Donations made to conceived and unborn children
may be accepted by those persons who would legally
represent them if they were already born. (627)
DONATIONS TO CONCEIVED AND
UNBORN CHILDREN
The article applies both to simple and onerous donations. The
acceptance must be made by those persons who would
legally represent them if they are already born.
Q: What are the requisites for a valid donation to an
unborn?
A:
1. the child be born alive later (if it had a normal intra
uterine life)
2. or that the child, after being born alive, should live for at
least 24 hours (if it had an intra uterine life of less than 7
months). Otherwise, if the child never possessed juridical
personality, there beong no donee, the donation is null
and void.
Art. 743. Donations made to incapacitated persons shall be
void, though simulated under the guise of another contract
or through a person who is interposed. (628)
___________________________
DONATIONS TO INCAPACITATED PERSONS
The incapacity refers to persons specially disqualified by law
to become donees, such as those referred to in arts. 739 and
740.
Donations to such persons are void even if simulated under
the guise of another contract or through an intermediary.
Art. 744. Donations of the same thing to two or more
different donees shall be governed by the provisions
concerning the sale of the same thing to two or more
different persons. (n)
DONATIONS OF THE SAME THING TO
DIFFERENT DONEES
DOUBLE DONATION
The article expressly makes applicable by analogy the rules on
sales of the same thing to two or more different vendees.
Like in instances of double sale, Article 1544 applies in case of
double donation.
Q: When is there double donation?
A: When the same thing has been donated to two or more
persons.
Q: What is the rule in case of a double donation?
A: The rule on double sale under Article 1544 shall be
applicable:
a. Movable Owner who is first to possess in good faith
b. Immovable
1. First to register in good faith
2. No inscription, first to possess in good faith
3. No inscription & no possession in good faith
Person who presents oldest title in good faith
Justice Vitug & Dean Navarro: This provision is problematic
as the Civil Code Commission failed to remember that
donation is different form sale. And that the attempt to
donate the property for the second time around, the donor
would have no right to effect donation as he is no longer the
owner of the property.
Art. 745. The donee must accept the donation personally, or
through an authorized person with a special power for the
purpose, or with a general and sufficient power; otherwise,
the donation shall be void. (630)
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BY WHOM ACCEPTANCE IS MADE
A valid donation once accepted becomes irrevocable except
on such grounds provided by law such as inofficiousness,
failure of the donee to comply with charges imposed in the
donations or by reason of ingratitude.
Art. 746. Acceptance must be made during the lifetime of
the donor and of the donee. (n)
Q: What is the reason for the provision?
A: The donation is personal between the donor and the
donee(Code Commission).
Q: What if the donor dies before he learns of the
acceptance?
A: If the donor dies before he learns of the acceptance, the
donation does not take effect.
Art. 747. Persons who accept donations in representation of
others who may not do so by themselves, shall be obliged to
make the notification and notation of which Article 749
speaks. (631)
DUTY OF PERSON WHO ACCEPTS IN
REPRESENTATION OF THE DONEE
Requisites:
1. acceptence is made through the parents, legal
representative, or authorized agent of the donee;
2. the property donated is immovable;
3. the acceptance is not made in the same deed of
donation but in as separate public instrument.
The requirement of notification of the donor and notation in
both instruments that such notification has been made is
necessary for the validity and perfection of the donation.
Art. 748. The donation of a movable may be made orally or
in writing.
An oral donation requires the simultaneous delivery of the
thing or of the document representing the right donated.
If the value of the personal property donated exceeds five
thousand pesos, the donation and the acceptance shall be
made in writing, otherwise, the donation shall be void.
(632a)
FORMALITIES FOR DONATION OF
MOVABLES
Q: What are the rules for the donation of movable
properties?
___________________________
A:
1. value of property exceeds P5,000- the donation and
the acceptance must always be made in writing. The
donation and the acceptance need not be made in a
public instrument. Nor is it necessary that the
acceptance be made in the same deed of donation.
2. value of property is P5, 000 or less- - it may be made
orally or in writing. If made orally, there must be
simultaneous delivery of the thing or of the
document representing the thing donated. If made
in writing, the donation is valid although there is no
simultaneous delivery.
Art. 749. In order that the donation of an immovable may be
valid, it must be made in a public document, specifying
therein the property donated and the value of the charges
which the donee must satisfy.
The acceptance may be made in the same deed of donation
or in a separate public document, but it shall not take effect
unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the
donor shall be notified thereof in an authentic form, and
this step shall be noted in both instruments. (633)
FORMALITIES FOR DONATION OF
IMMOVABLES
The article does not apply to onerous donations which are
governed by the rules on obligations and contracts. The
provision applies where the donation imposes upon the done
a burden which is less than the value of the thing given
because it requires that the public document must specify the
value of the charges that the donee must satisfy
Q: What are the rules for the donation of immovable
properties?
A:
1. Donation and acceptance are in the same
instrument
a. must be in a public instrument or document
b. the instrument must specify the property donated
and the charges, if any, which the donee must satisfy
2. donation and acceptance are in separate
instruments
a. must be in a public instrument or document;
b. the instrument must specify the property donated
and the charges, if any, which the donee must
satisfy;
c. the acceptance by the donee must be in a public
document;
d. it must be done during the lifetime of the donor;
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e. the donor must be notified in authentic form of the
acceptance of the donation in a separate
instrument;
f. the fact that such notification has been made must
be noted in both instruments
CHAPTER 3
EFFECT OF DONATIONS AND LIMITATIONS THEREON
Art. 750. The donations may comprehend all the present
property of the donor, or part thereof, provided he reserves,
in full ownership or in usufruct, sufficient means for the
support of himself, and of all relatives who, at the time of
the acceptance of the donation, are by law entitled to be
supported by the donor. Without such reservation, the
donation shall be reduced in petition of any person affected.
(634a)
Art. 751. Donations cannot comprehend future property.
By future property is understood anything which the donor
cannot dispose of at the time of the donation. (635)
Art. 752. The provisions of Article 750 notwithstanding, no
person may give or receive, by way of donation, more than
he may give or receive by will.
The donation shall be inofficious in all that it may exceed
this limitation. (636)
RESERVATION OF SUFFICIENT MEANS FOR
SUPPORT OF DONOR AND RELATIVES
A donor may donate all his present property or part threof
provided he reserves sufficient property in ownership or in
usufruct for the support of himself and of all relatives who
are entitled to be supported by him at the time of the
perfection of the donation.
Q: What properties may be donated?
A: The donation may cover all present property of the donor.
Present property refers to property of the donor which he
could dispose of at the time of the donation.
Q: What is the standing of the donation where the donor did
not reserved property or assets for himself sufficient for his
support and all his relatives legally dependent upon him?
A: It is valid. It is merely reducible to the extent that the
support to himself and his relatives is impaired or prejudiced.
Q: What do you mean by present property?
A: Present property means property which the donor can
rightfully dispose at the time of the donation.
___________________________
Q: What are the exceptions to this?
A:
1. donation mortis causa,
2. donation propter nuptias, and
3. onerous donations
Q: May future properties be donated?
A: No. The donor is not yet the owner of said property. A
person cannot give what he does not own.
NOTE: Future inheritance is future property, but not all future
property is future inheritance. Future inheritance like future
property cannot be disposed of by donation. However,
accrued inheritance, even if not yet delivered, may be
alienated by the heir because hereditary rights are
transmitted from the moment of the death of the decedent.
(Art. 777, NCC)
Q: What do you mean by relatives?
A: The law states relatives at the time of the acceptance but
this really refers to relatives at the time knowledge of the
acceptance for before such knowledge, there has been no
perfection as yet of the donation.
Q: What is support?
A: Comprises of everything indispensable for subsistence,
dwelling, clothing, medical attendance, and transportation in
keeping with the capacity of the family.
Q: What is the basis for this?
A:
1. The claims of the donors own family should not be
disregarded
2. The father of a big family should reserve an amount
sufficient for those he may be called upon to support.
3. If a donor is a person who earns sufficient income from
his profession, he need not reserve.
Payment of existing obligations
Aside from the reservation of support, the donor must also
reserve enough of his property to pay off his debts
contracted before donations, otherwise, there is a
presumption that the donation was made to defraud
creditors.
AMOUNT OF DONATION, LIMITED TO WHAT
DONOR MAY GIVE BY WILL
Article 752 makes applicable to donations the limitation on
testamentary disposition with respect to the amount thereof.
The provision means that a person may not donate more
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
than he can give by will and a person may not receive by way
of donation more than what the donor is allowed by law to
give by will, otherwise the donation shall be inofficious and
shall be reduced with regard tothe excess.
The limitation applies when the donor has forced or
compulsory heirs. But the limitation is enforceable only after
the death of the donor because it is only then when it can be
determined whether or not the donation is inofficious.
Therefore, the donation is valid during the lifetime of the
donor.
Art. 753. When a donation is made to several persons
jointly, it is understood to be in equal shares, and there shall
be no right of accretion among them, unless the donor has
otherwise provided.
The preceding paragraph shall not be applicable to
donations made to the husband and wife jointly, between
whom there shall be a right of accretion, if the contrary has
not been provided by the donor. (637)
NOTE: Donation is presumed to be in equal shares
General rule: there is no Accretion in donation
XPNS:
1. donation to spouses, or
2. otherwise provided by the donor
Art. 754. The donee is subrogated to all the rights and
actions which in case of eviction would pertain to the donor.
The latter, on the other hand, is not obliged to warrant the
things donated, save when the donation is onerous, in
which case the donor shall be liable for eviction to the
concurrence of the burden.
The donor shall also be liable for eviction or hidden defects
in case of bad faith on his part. (638a)
1. The donee is subrogated to all the rights and actions
which in case of eviction would pertain to the donor;
2. If the donation is simple or remunerative, the donor is
not liable for eviction or hidden defects, because the
donation is gratuitous;
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;
4. if the donation is onerous, the donor is liable on his
warranty but only to the extent of the burden.
Eviction
Whenever by final judgment based on a right prior to the sale
or donation or an act imputable to the vendor or donor, the
vendee or donee is deprived of the whole or of a part of the
thing purchased.
___________________________
Hidden defects
Those which are not patent upon a physical examinations of
the object donated.
Warranty exists when
1. the donor is in bad faith;
2. the donation is onerous;
3. if warranty is expressly made;
4. if donation is propter nuptias unless the contrary is
stipulated.
Art. 755. The right to dispose of some of the things donated,
or of some amount which shall be a charge thereon, may be
reserved by the donor; but if he should die without having
made use of this right, the property or amount reserved
shall belong to the donee. (639)
DONATION WITH RIGHT TO DISPOSE OF
PART OF OBJECT DONATED, RESERVED
The donor may reserve the right to dispose of some of the
things or part of the thing donated or some amount or
income thereof. The donation is actually conditional, and the
condition is fulfilled if the donor dies without exercising the
right he reserved, either by acts inter vivos or mortis causa.
Art. 756. The ownership of property may also be donated to
one person and the usufruct to another or others, provided
all the donees are living at the time of the donation. (640a)
When one person receives the usufruct, it is understood that
the other donee receives only the naked ownership, not the
full ownership.
Art. 757. Reversion may be validly established in favor of
only the donor for any case and circumstances, but not in
favor of other persons unless they are all living at the time
of the donation.
Any reversion stipulated by the donor in favor of a third
person in violation of what is provided in the preceding
paragraph shall be void, but shall not nullify the donation.
(614a)
DONATION WITH PROVISION FOR
REVERSION
The donor may provide for reversion, whereby the property
donated shall go back to the donor or some other person.
Art. 758. When the donation imposes upon the donee the
obligation to pay the debts of the donor, if the clause does
not contain any declaration to the contrary, the former is
understood to be liable to pay only the debts which appear
to have been previously contracted. In no case shall the
donee be responsible for the debts exceeding the value of
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
the property donated, unless a contrary intention clearly
appears. (642a)
Art. 759. There being no stipulation regarding the payment
of debts, the donee shall be responsible therefor only when
the donation has been made in fraud of creditors.
The donation is always presumed to be in fraud of creditors,
when at the time thereof the donor did not reserve
sufficient property to pay his debts prior to the donation.
(643)
LIABILITY OF DONEE TO PAY DEBTS OF DONOR
Q: What are the rules provided under Arts. 758 and 759?
A:
1. where donor imposes obligation upon the donee:
The donee is liable to pay only debts previously contracted.
He is liable for subsequent debts only when there is a
stipulation to that effect. He is not liable for debts in excess of
the value of the donation received, unless the contrary is
intended.
2. where there is no stipulation regarding the payment of
debts:
The donee is generally not liable to pay the donors debts. He
is responsible therefor only if the donation has been made in
fraud of creditors which is always presumed when, at the
time of the donation, the donor has not left sufficient assets
to pay his debts.
He is not liable beyond the value of the donation received.
CHAPTER 4
REVOCATION AND REDUCTION OF DONATIONS
Art. 760. Every donation inter vivos, made by a person
having no children or descendants, legitimate or legitimated
by subsequent marriage, or illegitimate, may be revoked or
reduced as provided in the next article, by the happening of
any of these events:
(1) If the donor, after the donation, should have legitimate
or legitimated or illegitimate children, even though they be
posthumous;
(2) If the child of the donor, whom the latter believed to be
dead when he made the donation, should turn out to be
living;
(3) If the donor subsequently adopt a minor child. (644a)
Q: To what kind of donations this article apply?
___________________________
A: This article applies to all donation inter vivos and not to
mortis causa.
Q: What is the reason for this article?
A: The reason for the article is that the law presumes that the
donor would not have made the donation if he had or knew
he had a child who would naturally be entitled to his affection
and property.
The donation cannot be revoked when the child was already
conceived at the time of the donation, only if the donor was
aware of the conception of his child.
Q: Does this article cover descendants also?
A: The article covers only the appearance of children and not
the descendants. However, although the donation will not be
revoked, it may be declared inofficious if it impairs the
legitime of the descendant.
Q: Is there a need for a complaint to revoke the donation?
A: The donation is revoked by the happening of any of the
events enumerated in the article (ipso jure) but a complaint
showing allegations and proofs must be filed to show that the
child is actually impaired.
Q: What if the child born subsequent to the donation should
die before the complaint for revocation is filed?
A: If the child born subsequent to the donation should die
before the complaint for revocation is filed, the donation
remains subsisting, according to the view of most authors.
GROUNDS FOR REVOCATION AND
REDUCTION OF DONATION
1. Revocation- affects the whole donation and is allowed
during the lifetime of the donor
a. birth, appearance, or adoption of a child;
b. non fulfillment of a resolutory condition imposed
by the donor;
c. ingratitude of the donee
2. Reduction- generally affects a portion only of the donation
and is allowed during the lifetime of the donor or after his
death;
a. failure of the donor to reserve sufficient means for
support of himself or dependent relatives;
b. failure of the donor to reserve sufficient property to
pay off his existing debts;
c. inofficiousness, that is, the donation exceeds that
which the donor can give by will;
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Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
Rules on donation
When the property cannot be returned, it shall be estimated
GROUNDS PRESCRIPTION TRANSMISSIBILITY EFFECT OF LIABILITY at what it was worth at the time of the donation. (645a)
OF ACTION OF ACTION REVOCATION FOR FRUITS
birth, Within 4 years Transmitted to Property Donee
appearance, from birth of children and must be must return What the donee must do if the donation is reduced?
or adoption child, descendants of returned or the fruits
of a child legitimation, donor upon his its value if accruing
adoption, death sold, or from the A:
judicial redeem the filinhg of 1. if the property is still with him, return the property
declaration of mortgage the
filiations or with the right complaint 2. if the property has been sold, give the value to the donor
receipt of to recover 3. if the property has been mortgaged, the donor may pay
information of the property
existence off the debt, but he can recover reimbursement from the
Non- Within 4 years To donors heirs Property Donee done
compliance from non- against the returned, must return
with compliance donees heirs alienations the fruits
4. if the property cannot be returned, return its value
conditions and received
mortgages aftre the Determination of value at the time of donation
are void non-
subject to the fulfillment
rights of 3rd of the It is presumed that the price at which the property is sold is
persons condition
against the its value. If the price is less than its actual value, the donee is
donee not liable for the difference absent proof of bad faith.
Act of Within 1 year Not transmitted to Property to Donee
ingratitude from heirs of the donor be returned; must return
knowlegde of alienations & the fruits When the property cannot be returned, its value shall be
the act of mortgages accruing determined not as of the time of loss but as of the time of the
ingratitude before from the
notation of filing of the donation because the done became owner from the latter
complaint in complaint time and as owner he must suffer the loss or diminution, or
the Registrty
of Property
enjoy the increase in value of the property donated.
subsist
Art. 763. The action for revocation or reduction on the
Art. 761. In the cases referred to in the preceding article, the grounds set forth in article 760 shall prescribe after four
donation shall be revoked or reduced insofar as it exceeds years from the birth of the first child, or from his
the portion that may be freely disposed of by will, taking legitimation, recognition or adoption, or from the judicial
into account the whole estate of the donor at the time of declaration of filiation, or from the time information was
the birth, appearance or adoption of a child. (n) received regarding the existence of the child believed dead.

Q: What are the grounds for reduction of donation? This action cannot be renounced, and is transmitted, upon
A: The same grounds for revocation under Article 760. The the death of the donor, to his legitimate and illegitimate
donation shall be reduced insofar as it exceeds the portion children and descendants. (646a)
that may be freely disposed of by will, taking into account the
whole estate of the donor at the time of the birth, PRESCRIPTION OF ACTION FOR REVOCATION OR
appearance, or adoption of a child. (Art. 761). REDUCTION

The revocation is a mere reduction or partial revocation and
not total (as opposed to that mentioned in the Old Civil
Code).
The donation will only be revoked to the extent of the
presumptive legitime of the child; it will remain valid with
respect to the free portion taking into account the estate of
the donor at the time of the birth, appearance of adoption of
the child.
Art. 762. Upon the revocation or reduction of the donation
by the birth, appearance or adoption of a child, the property
affected shall be returned or its value if the donee has sold
the same.
The donation is revoked ipso jure by operation of law, by the
happening of any of the events mentioned in article 760.
Q: Within what period should the action be brought?
A: The period to bring an action is four years, and the day
from which the period shall begin to run depends upon the
cause for the revocation or reduction;
Q: What if the donor dies within the period of prescription?
A: If the donor dies within the period of prescription, the
action is transmitted to his legitimate and illegitimate
children and descendants.

If the property is mortgaged, the donor may redeem the NOTE: The surviving spouse and the ascendants of the donor
mortgage, by paying the amount guaranteed, with a right to are not included. If subsequent to the donation, more than
recover the same from the donee. one child was born, the period of prescription is counted

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Kenneth & King Hizon (2A)- UST Faculty of Civil Law
from the birth of the first child. With respect to legitimation,
the period of prescription must be counted from the time of
the legitimation (from the celebration of the subsequent
marriage, whether or not the child is recognized by the
parents).
Q: What is the period of prescription in case of adopted
children?
A: With respect to adopted children, the period of
prescription runs from the date the judgment of the court
approving the adoption becomes final.
Q: What is the period of prescription in case of judicial
declaration of filiation?
A: With respect to judicial declaration of filiation, the period
of prescription must run from the date when the judgment
declaring filiation becomes final.
NOTE: As to receipt of information of existence of child
believed dead, the prescriptive period is to be computed not
from the actual appearance of the absent child but from the
time the information was received regardingits existence.
In case more than one cause or ground for revocation or
reduction concur, the period of prescription must run from
the earliest cause.
Art. 764. The donation shall be revoked at the instance of
the donor, when the donee fails to comply with any of the
conditions which the former imposed upon the latter.
In this case, the property donated shall be returned to the
donor, the alienations made by the donee and the
mortgages imposed thereon by him being void, with the
limitations established, with regard to third persons, by the
Mortgage Law and the Land Registration Laws.
This action shall prescribe after four years from the
noncompliance with the condition, may be transmitted to
the heirs of the donor, and may be exercised against the
donee's heirs. (647a)
FAILURE TO COMPLY WITH CONDITIONS
Q: What is a condition?
A: Condition actually refers to the obligations, charges, or
burdens imposed by the donor for his benefit or that of a
third person.
What is contemplated is an onerous or modal donation. It
may also refer to a resolutory condition, but not to a
suspensive condition because if the condition is not fulfilled,
the donation never becomes effective.
NOTE: Revocation implies that there is an existing donation.
___________________________
The condition must be fulfilled within the period fixed by the
donor.
Q: What if the donation does not fix a period?
A: If the donation does not fix a period, the court shall
determine such period as may under the circumstances have
been probably contemplated by the donor.
Q: What if there was non-fulfillment of the condition?
A: In case of non- fulfillment, the property donated reverts to
the donor.
a. Failure of the donee to comply with any condition
imposed by the donor will not affect third persons.
b. In case of non fulfillment by the donee of any of
the conditions imposed by the donor, the donation
shall be revoked at the instance of the donor.
NOTE: The donor may file action for specific performance.
The article is not applicable to onerous donations which are
also governed by the general rules on prescription.
Q: Who has the burden of proof in showing that the donee
failed to comply with the obligation?
A: The presumption is that the done has complied with his
obligation under the deed of donation. Donor has the burden
of proof that the donee failed to comply with his obligation.
NOTE: Unlike the action for revocation or reduction, there is
no prohibition in art. 764 against the renunciation of the
action by the donor because the condition is purely
contractual in nature. The action may be waived.
The death of the donor or the donee does not bar the action
to revoke for failure of the donee to comply with any of the
conditions imposed by the donor, provided the prescriptive
period has not yet expired.
Unlike the action under arts. 769 and 770, the action under
art. 764 is transmissible in favor of the donors heirs and
against the donees heirs because the right granted is not
personal to the donor nor is the liability of the donee
personal to him.
Art. 765. The donation may also be revoked at the instance
of the donor, by reason of ingratitude in the following cases:
(1) If the donee should commit some offense against the
person, the honor or the property of the donor, or of his
wife or children under his parental authority;
(2) If the donee imputes to the donor any criminal offense,
or any act involving moral turpitude, even though he should
prove it, unless the crime or the act has been committed
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law
against the donee himself, his wife or children under his
authority;
(3) If he unduly refuses him support when the donee is
legally or morally bound to give support to the donor. (648a)
REVOCATION BY REASON OF INGRATITUDE
OF THE DONEE
The article does not apply to donations mortis causa and
onerous donations.
A donation propter nuptias may be revoked by the donor
when the donee has committed an act of ingratitude.
The enumeration is exclusive and cannot be enlarged. The
act of ingratitude must have been committed by the done
himself because the duty of ingratitude is personal.
Art. 766. Although the donation is revoked on account of
ingratitude, nevertheless, the alienations and mortgages
effected before the notation of the complaint for revocation
in the Registry of Property shall subsist.
Later ones shall be void. (649)
EFFECT OF REVOCATION ON PRIOR
ALIENATIONS AND MORTGAGES
In case of revocation of a donation by non compliance by
the done with any of the conditions imposed by the donor,
alienations and mortgages made by the donee are void,
subject only to the rights of innocent third persons.
If the revocation is by reason of ingratitude, the alienations
and mortgages made by the done before the complaint for
revocation is annotated in the Registry of Property shall
subsist or are valid, later alienations and mortgages shall be
void.
Art. 767. In the case referred to in the first paragraph of the
preceding article, the donor shall have a right to demand
from the donee the value of property alienated which he
cannot recover from third persons, or the sum for which the
same has been mortgaged.
The value of said property shall be fixed as of the time of
the donation. (650)
If the property has been lost or deteriorated thru any cause
including a fortuitous event, the donee should respond with
damages, because as owner, he is supposed to bear the loss
or deterioration (res perit domino).
Art. 768. When the donation is revoked for any of the
causes stated in Article 760, or by reason of ingratitude, or
when it is reduced because it is inofficious, the donee shall
not return the fruits except from the filing of the complaint.
___________________________
If the revocation is based upon noncompliance with any of
the conditions imposed in the donation, the donee shall
return not only the property but also the fruits thereof
which he may have received after having failed to fulfill the
condition. (651)
RETURN NY DONEE OF THE FRUITS OR PROPERTY
DONATED
Rules depend upon the causes of revocation or reduction:
1. If the cause is the birth, appearance, or adoption of a
child or ingratitude, or inofficiousness of the donation
because the donor did not reserve sufficient means for
support, or he donated more than he can give by will,
only the fruits accruing from the filing of the complaint
need be returned. From this it can be implied that the
donation remains valid up to the time of the filing of the
complaint.
2. If the cause is the non fulfillment of the condition
imposed in the donation, the fruits must be returned
from the time of the breach of the condition. The donee
shall return the property donated.
Art. 769. The action granted to the donor by reason of
ingratitude cannot be renounced in advance. This action
prescribes within one year, to be counted from the time the
donor had knowledge of the fact and it was possible for him
to bring the action. (652)
RENUNCIATION AND PRESCRIPTIVE PERIOD OF
ACTION BY REASON OF INGRATITUDE
1. The action granted to the donor for revocation by reason
of ingratitude cannot be renounced in advance. What the
law prohibits is waiver, prior to the commission of the act
of ingratitude. A past ingratitude can be the subject of a
valid renunciation because the renunciation can be
considered as an act of magnanimity on the part of the
donor.
2. The action prescribes within one year from the time the
donor had knowledge of the act of ingratitude and it was
impossible for him to bring the action. In case of a
fortuitous event, the period during which such
impossibility existed is not counted
Art. 770. This action shall not be transmitted to the heirs of
the donor, if the latter did not institute the same, although
he could have done so, and even if he should die before the
expiration of one year.
Neither can this action be brought against the heir of the
donee, unless upon the latter's death the complaint has
been filed. (653)
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NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
entitled to (art. 195 Family donated
support Code);
TRANSMISSION OF ACTION FOR REVOCATION during the
lifetime of the
donor
General Rule: The action to revoke a donation by reason of Inofficiousnes 5 years action is donation donee
ingratitude is purely personal to the donor and cannot, as a s transmitted takes effect appropriate
rule, be transmitted to the heirs. to the donors during the s the
heirs as the lifetime of fruits as
donation shall be the donor owner of
Exceptions: reduced as regard subject to the
the excess at the reduction property
1. if the donee killed the donor, the latters heirs can ask for time of only upon
revocation; the donors death his death
with regard
2. the heirs may also do so if the donor dies without having to
known of the act of ingratitude; the excess
3. if a criminal case against the donee was instituted by the Birth, Anytime Not transmissible Donation Donee
appearance or during the reduced to appropriate
donor, but the donor dies before he could bring the civil adoption of a lifetime of extent s fruits not
action for revocation, his heirs may likewise bring action child donor necessary affected by
for support reductioon,
because in such case, the intent of the donor not to with regard
pardon the done is quite clear; to the
excess,
4. if the action for revocation has already been filed by the liable for
donor before his death, his heirs are allowed to continue fruits
the same accruing
from the
filing of the
NOTE: The heirs of the donee are not held responsible for the complaint
Fraud against 4 years action is the property the
acts of their predecessor donee. The act of ingratitude of creditors transmitted to affected fruits of the
the donee is personal. But if the donor has already filed the the creditors shall be property
complaint before the donees death, the suit may be heirs or returned by affected
successors in the shall
continued against his heirs interest donee for also be
the benefit returned
of the
Art. 771. Donations which in accordance with the provisions creditor
of Article 752, are inofficious, bearing in mind the estimated subject to
the rights of
net value of the donor's property at the time of his death, innocent
shall be reduced with regard to the excess; but this third
reduction shall not prevent the donations from taking effect persons

during the life of the donor, nor shall it bar the donee from
appropriating the fruits.
For the reduction of donations the provisions of this Chapter
and of Articles 911 and 912 of this Code shall govern. (654)
REDUCTION OF INOFFICIOUS DONATIONS
Since the inofficiousness of the donation cannot be
determined till after the donor's death, it follows that in the
meantime, the donation is valid and ownership is transmitted
to the done during the donor's lifetime.
Art. 772. Only those who at the time of the donor's death
have a right to the legitime and their heirs and successors in
interest may ask for the reduction or inofficious donations.
Those referred to in the preceding paragraph cannot
renounce their right during the lifetime of the donor, either
by express declaration, or by consenting to the donation.
The donees, devisees and legatees, who are not entitled to
the legitime and the creditors of the deceased can neither
ask for the reduction nor avail themselves thereof. (655a)

The action to reduce the inofficious donation must be PERSONS ENTITLED TO ASK FOR REDUCTION
brought within five years from the time the right of action
accrues. Q: Who may ask for reduction on the ground of
inofficiousness?
Resume of rules on reduction
A:
GROUNDS PRESCRIPTIO TRANSMISSIBILIT EFFECT OF LIABILITY 1. compulsory heirs of the donor
N OF ACTION Y OF ACTION REVOCATIO FOR FRUITS 2. the heirs and successor-in-interests of
N
Failure of the the action action not donation is the donee is
donor to may be transmissible as reduced to entitled to Q: Who may NOT ask for reduction?
reserve brought at the duty to give the the
sufficient any time by support and extent fruits of the
means for the donor or the right to necessary to owner of A:
support by the receive are provide the 1. voluntary heirs
relatives personal in nature support property

136
NOTES ON PROPERTY
Kenneth & King Hizon (2A)- UST Faculty of Civil Law ___________________________
2. devisees
3. legatees
4. creditors of the deceased REFERENCES:

Donor not included because the inofficiousness can only be 1. Growling Notes
determined after his death. The right to ask for reduction of 2. Golden Notes
inofficious donations cannot be renounced during the
lifetime of the donor, either by express declaration or by
consenting to thet donation.

Q: Is future legitime subject to renunciation?

A: Future legitime is not subject to renunciation

Art. 773. If, there being two or more donations, the

disposable portion is not sufficient to cover all of them,
those of the more recent date shall be suppressed or
reduced with regard to the excess. (656)

Q: When is a donation inofficious?

A: A donation is inofficious or excessive when its amount

impairs the legitimes of the compulsory heirs.

NOTE: Donations must be charged only against the

disposable free portion. If its amount exceeds the same, the
excess is void for being inofficious.

Q: What is the status of an inofficious donation?

A: During the lifetime of the donor, the inofficious donation is

effective since the excessiveness of the donation can only be
determined after the donors death.

NOTE: Consequently, the donee is entitled to the fruits of the

property donated during the lifetime of the donor.

Q: May an heir waive his right during the lifetime of the

donor to file an action for suppression or reduction of an
inofficious donation?

A: No. Such waiver, in whatever form it is extended, is void.

(Art. 772)

REDUCTION WHERE THERE ARE TWO OR

MORE DONATIONS

1. the subsequent donations shall first be reduced and only

if they are not sufficient to cover the disposable portion
should the earlier ones be reduced also with regard to
the excess;
2. if the two donations were perfected at the same time,
the reduction should be proportionate unless otherwise
provided by the donor

--END--

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