Corporation Code of The Phils Batas Pambansa 68

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
includes rights, the rights covered under Art. 3 of the

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

referred as “remains of person” but no longer the person. b. Private ownership
It is not a property even it may be considered a thing. It is for 3. As to alienability

moral reasons and public policy that it is not considered as
property. a. Alienable
b. Inalienable
Q: May it be a subject of contractual relations?
4. As to individuality
A: Dean Aligada says no. However, some parts may be
donated for some scientific or medical purposes. According to a. Specific property
Justice Quiambao, however, generally, human body cannot b. Generic property
be the subject of contractual relations. The exception is if the
person during his lifetime would donate his organs or body 5. As to susceptibility to touch
parts by way of legacy or under Sec. 4 of Organ Donation Act.
a. Tangible
Q: Are human organs within the commerce of men? b. Intangible
A: No. 6. As to susceptibility to substitution

a. Fungible
Q: When you hire a person, does this not violate the b. Non fungible
principle that human bodies cannot be the object of
contract? 7. As to accession
A: No. In obligations, the object is the prestation which is a. Principal

either to do, not to do, or to give. Here, the objetc is the b. Accessory
service rendered or the labor exerted and labor is a property
which may be the subject of contractual relation. The human CONSUMMABLES v. FUNGIBLES
body is merely the means to render the service or labor
required. CONSUMMABLES FUNGIBLES
Those which cannot be used Those which can be
Things v. Property according to their nature substituted by another thing
without being consumed
THINGS PROPERTY
Broader in scope Limited Q: What is the importance of classifying the property
“All kinds of property are “All things which may be the according to its mobility?
things but not all things are object of appropriation
property A: The importance of the classification is that it determines
Refer to existing objects Property refers to objects certain distinctions in specific legal concepts like:
including those which could already possessed or is in
not be appropriated by man their possession 1. Criminal law
Things involve corporeal Property may refer tp
objects intangible matters like rights Robbery and theft- movables
and credits Usurpation and estafa- immovables
CLASSIFICATION OF PROPERTY 2. Kinds of contracts

NOTES ON PROPERTY
Real property- mortgage, antichresis
Personal property- pledge, deposit except judicial
deposit, chattel mortgage
3. Acquisitive presctiption
CATEGORIES OF IMMOVABLE PROPERTIES
GOOD FAITH BAD FAITH
Movable 4 years 8 years 1. NATURE- property which cannot be moved from one
Immovable 10 years 30 years place to another. Includes such constructiibs adhered to
soil, lands, roads, mines and quarries, wells and sewers
4. Venue in Remedial Law while they form part of soils (Pars. 1 and 8) regardless of
any other consideration.
2. INCORPORATION-attached to an immovable in a fixed

CHAPTER 1 manner (Pars. 1-3) irrespective of the ownership thereof.
IMMOVABLE PROPERTY
3. DESTINATION- such objects for use or ornamentation
Art. 415. The following are immovable property: placed in buildings or on lands by the owner of the
immovable or his agent in such a manner that it reveals
(1) Land, buildings, roads and constructions of all kinds the intention to attach them permanently thereto, as
adhered to the soil; well as the machinery and other implements intended by
(2) Trees, plants, and growing fruits, while they are attached the owner of the tenement for an industry or work which
to the land or form an integral part of an immovable; may be carried on in a building or on a place of land and
(3) Everything attached to an immovable in a fixed manner, which tend directly to meet the needs of the said
in such a way that it cannot be separated therefrom without industry or work.
breaking the material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for use or 4. ANALOGY- such as real rights over immovable property
ornamentation, placed in buildings or on lands by the owner (par. 10)
of the immovable in such a manner that it reveals the
intention to attach them permanently to the tenements; Par.1
(5) Machinery, receptacles, instruments or implements
intended by the owner of the tenement for an industry or Land by its very nature is immovable. Permanent structures
works which may be carried on in a building or on a piece of adhering to the land, whether in own land or rented land
land, and which tend directly to meet the needs of the said
industry or works; Constructions adhere to the soil [fence made of adobe
(6) Animal houses, pigeon-houses, beehives, fish ponds or stones, cemented dike
breeding places of similar nature, in case their owner has
placed them or preserves them with the intention to have Buildings which are permanent structures adhered to the
them permanently attached to the land, and forming a land are immovable whether built in one’s own land or
permanent part of it; the animals in these places are rented provided that they are more of a permanent structure
included; and not mere superimpositions on the land like barong-
(7) Fertilizer actually used on a piece of land; barongs.
(8) Mines, quarries, and slag dumps, while the matter
thereof forms part of the bed, and waters either running or A dismantled house and/or of materials of such house shall
stagnant; cease to be immovable and shall legally be considered
(9) Docks and structures which, though floating, are personal property.
intended by their nature and object to remain at a fixed
place on a river, lake, or coast; See: Jose Luna v. Demetrio Encarnacion; Leung Yee v. Frank
(10) Contracts for public works, and servitudes and other Strong
real rights over immovable property. (334a)
Q: Can a house be subject of chattel mortgage?
Q: What is an immovable property?
A: Yes, provided the following are present:
A: Under the Roman concept, it is that which cannot be a. Parties mutually agreed to consider the house a
transferred from one place to another because it is personalty
rd
impossible to do so or it cannot be transferred without b. That no innocent 3 party be prejudiced.
transferring without suffering injury or destruction.

NOTES ON PROPERTY
A building is real property thus its sale as annotated in the uprooted timber, if the land is a timber land. This is because
Chattel Mortgage Registry cannot be given the legal effect of timber is an integral part of the timber land.
registration in the Registry of Real Property.
GR: Growing Fruits are real property if attached to the soil
A building subjected to a chattel mortgage cannot be sold
extra-judicially. XPN:
a. For purposes of sale
NOTE: b. For attachment and execution
Doctrine of Estoppel – parties to a contract may, by c. For applying Chattel Mortgage Law
agreement, treat as personal property that which by nature
would be a real property; party is prohibited from assuming Par.3
inconsistent positions and repudiating an obligation
voluntarily assumed after having accepted benefits therefrom RES VINTA – immovable by incorporation, which when
separated from the immovable, they regain the air condition
Regardless of the validity of a contract constituting a chattel as movable.
mortgage on a house, as between the parties to said contract,
the same cannot and does not bind third persons who are not When separated from the immovable, they regain their
privies to the said contract condition as movable
Q: May a building be mortgaged separately from the land? Ex: ceiling fan attached to ceiling
A: Yes, a building may be validly mortgaged separately from Q: Distinguish Par. 3 from Par. 4.
the land upon which it is built. While it is true that a
mortgage of a land necessarily includes, in the absence of PAR. 3 PAR. 4
stipulation, the improvements thereon, still, a building by Cannot be separated from Can be separated from the
itself may be mortgaged apart from the land on which it has the immovable without immovable without breaking
been built breaking or deterioration or deterioration
Need not be placed by the Must be placed by the owner
Steel towers constructed by the Manila Electric Company are owner1 of the immovable or his
removable and merely attached to a square metal frame by agent, express or implied
means of bolts, which when unscrewed, could easily be Real property by Real property by
dismantled and moved from place to place. Hence, not being incorporation incorporation and
adhered to the soil, they are not to be considered real destination
properties.
The fact that the machineries were bolted or cemented on
Par.2 real property mortgage does not make them ipso facto
immovable under Art. 415 par. 3&5, as the parties’ intent has
Trees by their very nature are immovable, cannot be moved to be looked into. Even if the properties appear to be
from one place to another; but if cut or uprooted it becomes immovable by nature, nothing prohibits the parties from
personal property because it ceased to be adhered to the soil. treating them as chattels to secure an obligation under the
principle of estoppel.
No matter what their size may be, trees and plants are
considered real property BY NATURE, if they are spontaneous The breakage or injury, in case of separation, must be
products of the soil; and BY INCORPORATION, if they have substantial.
been planted thru labor.
Plants adhered to the soil by incorporation are immovable;

but if on pots used for ornamentation it is personal property. Par.4
Trees and plants planted or land are owned by registered Things placed on land or building with intention to attach
owner of the land, unless the owner has recognized the them; immovables by incorporation and destination
ownership in the hands of another.
The one who placed the statue etc. must be the owner of the
STANDING CROPS (growing crops) are real property by land or building or his representative or agents (if tenant
incorporation as long as they had not been gathered yet. If attached it is personal property).
harvested then it is personal property, except in the case of
Q: What are the requisites under this paragraph?

NOTES ON PROPERTY
Equipment and living quarters of the crew permanently
A: attached to an immovable is an immovable especially if it is
a. Place by the owner or by the tenant as agent of the intended to meet the needs of an industry of the corporation.
owner
b. With the intention of attaching them permanently, even Q: Thus, under Art. 415, when is machinery attached to land
if adherence will not involve breakage or injury. or tenement considered immovable?
A: Under Par. 5.
Par.5
Q: Give the exception?
Intended by the owner of the tenement for an industry or
works being carried in the land or in a building and which are A: When placed on the land or tenement by a tenant.
necessary for the pursuit of said industry or works
Q: Give the exception to the exception?
If the objects are separated, they become personal property
A: When the tenant had promised to leave the machinery on
If machinery are installed by lessee, the general rule is that the tenement at the end of the lease, or when he acted only
these are personal or movable property as an agent of the owner of the land.
EXPN: lessee agreed to give the machinery to the lessor upon Par. 6
termination of lease (considered immovable)
Animal houses, pigeon-houses, beehives, fish ponds or
Q: Under par.5, what are the requisites to be considered as breeding places of similar nature, in case their owner has
a real property? placed them or preserves them with the intention to have
them permanently attached to the land, and forming a
A: permanent part of it; the animals in these places are included
1. Machinery, etc. must be placed by the owner of the
tenement or his agent Animal houses; adhered to the soil -If purposely built to
2. The industry or works must be carried on in a building or attach to the ground, tree, wall ; owner of land intended to
piece of land be permanent.
3. Machinery, etc. must tend directly to meet the needs of
the said industry or works. The animal in the houses are considered part of the
4. They must be essential and principal elements of an immovable. If animals escaped, they ceased to be part of the
industry or works without which such industry cannot immovable.
function or carry on the industrial purpose for which it
was established. Hence, movables which are incidental Q: What are the requisites under this paragraph?
thereto cannot be considered immobilized.
a. Place by the owner or by the tenant as agent of the
owner, with the intention of permanent attachment
Cash registers, typewriters, etc. usually found and used in b. Forms permanent part of the immovable
hotels, restaurants, etc. are merely incidentals not considered
immobilized by destination, for these businesses can May be considered as real property under Art415(1) if it is a
continue or carry on their functions without these construction adhered to the soil in a permanent manner even
equipments. if not placed by the owner of the immovable. Animals in
pigeon-houses, beehives, etc. are considered real property
Steel towers are not intended for industry or works on the
land since Manila Electric Company is not engaged in an Par.7
industry or works on the land in which the steel supports or
towers are constructed. Fertilizers should be actually used on the land. If they are still
on sacks or containers, they are still movables.
Machineries of breweries used in the manufacture of liquor
and soft drinks, though movable in nature are immobilized The moment it is spread or applied directly to the soil, it is
because they are essential to said industries; but the delivery immovable by destination and incorporation. Once
trucks and adding machines which they usually own and use permeated to the soil, it cannot be removed from it without
are mere incidentals and retain their movable nature. destroying it
Par.8

NOTES ON PROPERTY
CHAPTER 2
Minerals found in these mines when still attached are real MOVABLE PROPERTY
property. After extraction it become chattels.
Art. 416. The following things are deemed to be personal
Q: What are quarries? property:
(1) Those movables susceptible of appropriation which are
A: Lands where stones are chipped of or where sand is being not included in the preceding article;
extracted; stones & sand real property, once extracted they (2) Real property which by any special provision of law is
become movables considered as personal property;
(3) Forces of nature which are brought under control by
Q: What are slag dumps? science; and
(4) In general, all things which can be transported from
A: Waste and dirt taken from a mine and mounted on the place to place without impairment of the real property to
surface of the ground under excavation which they are fixed. (335a)
Q: What is water? Q: What are the tests to determine whether a property is a

movable property?
A: Refers to those which are found in their natural beds such
as flowing streams, rivers or canals A:
a. By exclusion: those which are not included in Art. 415
Par.9 b. Law has provided that certain real property be treated as
personal property
Although floating, they are intended to be stationary.
Considered as immovables though floating, as long as they Example: growing crops for the purposes of Chattel Mortgage
are intended by their nature and object, to remain at a fixed Law
place on a river, lake or coast
c. Forces of nature which are brought under the control of
Vessels are considered personal property under the civil law science
and common law and occasionally referred to as a peculiar d. Things which can be transported from place to place
kind of personal property. It is essential that a record of without impairment of the real property to which they
documents affecting the title to a vessel be entered in the are fixed.
record of the Collector of Customs at the port of entry.
Q: What is the test of mobility?
Q: Is a floating restaurant considered as immovable?
A: If a property is capable of being carried from one place to
A:It depends. If it is floating in a fixed place and it was another and that such change in location can be made
intended as such, they are immovable. However, floating without injuring the real property to which it may be
restaurant in cruise remains movables. attached in the mean time.
Par.10 In U.S. v. Carlos, the Court convicted the accused of theft. The
RPC provides that personal property is the subject of theft.
GR.: A personal right is always regarded as personal property Electricity is a valuable article of merchandise and can be
bought and sold like any personal property.
XPN: In the cases of public works which are considered as
real property. In Laurel v. Abrogar, the Court held that gas and electrical
energy should not be equated with business or services
A person’s one-half interest in business is a personal provided by business entrepreneurs to the public.
property. Additionally, the long distance of call services of a telephone
company are not movable properies which may be the
In Presbiterio v. Fernandez, it was held that as an subject of theft.
improvement to the land, by express provision of the law,
though not physically so united, the sugar quotas are NOTE: The author, composer, partner, sculptor, and inventors
inseparable therefrom just like servitudes and other real have rights over their works. These rights are PERSONAL
rights over an immovable. PROPERTY.

NOTES ON PROPERTY
Art. 417. The following are also considered as personal CONSUMMABLES FUNGIBLES
property: Those properties which Things which can be
cannot be used according to substituted by another thing
(1) Obligations and actions which have for their object their nature without being
movables or demandable sums; and consumed, eaten up, or used
(2) Shares of stock of agricultural, commercial and industrial up.
entities, although they may have real estate. (336a) Test: Whether it can be used Test: intention of the parties
over and over again
Q: What is the scope of this article? Consummables do not
necessarily mean they are
A: This covers credits. The words obligations and actions refer fungibles
to the right to recover movables and demandable sums of
money.
The right to collect a sum of money is by itself a personal CHAPTER 3

property. PROPERTY IN RELATION TO THE PERSON
TO WHOM IT BELONGS
Q: Under par. 2, it states shares of stocks. What does it
mean? Art. 419. Property is either of public dominion or of private
ownership. (338)
A: From the wordings of the law could be implied that only
stock corporations engaged in agriculture, commerce, or Public Dominion
industry. however, Dean Pineda claims that there is no reason
why other juridical entities to be excluded from the coverage. Q: Classify the property according to ownership?
Q: What if you are partners with somebody in the business A:

of selling cars and your partnership bought a garage and 1. Property of public dominion
display store. How do you classify your share in the 2. Property of private dominion
partnership?
Q: What is public dominion?
A: It is personal property.
A: Property of the state in its public capacity which is
Q: What if you are a co-owner of a building? intended:
a. For public use
A: It is Real. b. For public service
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 A: Consists of all property belonging to private persons either
which cannot be used in a manner appropriate to their individually or collectively.
nature without their being consumed; to the second class
belong all the others. (337)
Q: How do you classify objects as to their consummability? Art. 420. The following things are property of public
dominion:
A: (1) Those intended for public use, such as roads, canals,
1. Consummable property- cannot be used in a manner rivers, torrents, ports and bridges constructed by the State,
appropriate to their nature without being consumed banks, shores, roadsteads, and others of similar character;
2. Non-consummable property- one which can be used (2) Those which belong to the State, without being for public
without it being consumed, being eaten or used. 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
over again. If yes, it is non-consummable. Q: What are the classification of property of public
dominion?
CONSUMMABLES v. FUNGIBLES
A:
NOTES ON PROPERTY
1. Property for public use years, renewable for not more than twenty-five years, and
2. Property for public service under such terms and conditions as may provided by law. In
3. Property for the development of national wealth cases of water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of waterpower,
Q: What is a property for public use? beneficial use may be the measure and limit of the grant.
A: These are properties which can be used by like roads, Q: What are the properties of Public Dominion under
bridges, state rivers, and the like. Article420, NCC?
Q: What is property for public service? A:

1. Roads – national highways and roads constructed
A: Properties belonging to the State which can be used only and maintained by DPWH
by those who are authorized to do so like buildings for 2. Canals – artificial waterways, drainage, irrigation or
government offices or departments, vehicles for public navigation
officials, firearms, etc. 3. Rivers – includes the running waters, bed and the
bank
Q: How about those for the development of the national Accretion on riverbanks
wealth? a. Natural – belongs to the owner of land adjacent
to bank
A: These are forest lands, minerals, etc. b. Artificial – belongs to the State
4. Torrents
Q: Can the properties of public dominion be subject of 5. Ports and Bridges Constructed by the State
negotiations for contract purposes? Ports includes airports and seaports
6. Charging of fees to the public does not determine
A: No. Properties of public dominion are properties outside the character of the property – still for public use
the commerce of men, hence, when it is outside the Banks
commerce of men it cannot be the subject of negotiations for 7. Shores – space which is alternately covered and
contract purposes. uncovered by the water with movements of the
tides
Q: What are the characteristics of property of public 8. Roadsteads
dominion? 9. Others of Similar Character - Creeks
10. Those Belonging to State which are Intended for
A: Some Public Service or for the Development of the
1. Outside the Commerce of Man National Wealth
2. Cannot be acquired through prescription
3. Cannot be levied upon execution or attachment NOTE: Art XII, Sec 3 of the 1987 Constitution:
4. In general, may be used by everybody except Lands of Public Domain
properties intended for public services 1. Agricultural – can be alienated
5. May be real or personal property 2. Forest/ Timber
6. Cannot be burdened by voluntary easement 3. Mineral
7. May either be real or personal property 4. National Park
Q: What is the “Doctrine of Jura Regalia”? Q: Does the collection of fees for the use of public property
affect its public character?
A: All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential A: No. In Manila International Airport Authority v. CA, it was
energy, fisheries, forests or timber, wildlife, flora and fauna, held that as long as the property is intended for public use, it
and other natural resources are owned by the State. With the will remain property for public dominion notwithstanding the
exception of agricultural lands, all other natural resources fact that fees have been collected from the people. Such fees
shall not be alienated. The exploration, development, and collected will not affect the character of the property as such
utilization of natural resources shall be under the full control are only used for maintenance purposes.
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 Art. 421. All other property of the State, which is not of the
centum of whose capital is owned by such citizens. Such character stated in the preceding article, is patrimonial
agreements may be for a period not exceeding twenty-five property. (340a)

NOTES ON PROPERTY
Q: What are patrimonial property of the state? Q: What if the property is abandoned, can it be alienated
already?
A: These are properties of the state which is not intended for
public use, public service or for the development of the A: No. A formal declaration from the Executive Department
national wealth. that the property is no longer intended for public use or
public service is a condition sine qua non for it to be
These are acquired by the state in its private capacity. Hence, converted to patrimonial property.
it can be subject to prescription or appropriation and can be
an object of ordinary contracts or agreements. Q: Can the local government declare or withdraw a public
property from public use?
Q: What is the coverage of patrimonial property?
A: Generally, no. Except when the power or authority is
A: granted by law.
1. Owned by the State in a private / proprietary capacity
2. Properties of Public Dominion no longer intended for
public use or public service
Art. 423. The property of provinces, cities, and
Q: How can a property be classified as a patrimonial municipalities is divided into property for public use and
property? patrimonial property. (343)
A: An Executive or Legislative act is necessary to reclassify

property into patrimonial. The conversion cannot be inferred
from non-use. Art. 424. Property for public use, in the provinces, cities, and
municipalities, consist of the provincial roads, city streets,
Examples: municipal streets, the squares, fountains, public waters,
1. Friar Lands (Act 1120) – lands acquired by the promenades, and public works for public service paid for by
government from religious corporations or orders said provinces, cities, or municipalities.
2. Alienable and Disposable Lands of Public Domain
3. Lands Covered by RA7227 – military reservations no All other property possessed by any of them is patrimonial
longer needed for defense or military purposes are and shall be governed by this Code, without prejudice to the
reclassified as patrimonial properties provisions of special laws. (344a)
4. Reclaimed lands along Pasay City including that of
MOA NOTE:
a. Provinicial roads
b. city streets
c. municipal streets
Art. 422. Property of public dominion, when no longer d. squares, fountains
intended for public use or for public service, shall form part e. public waters; and
of the patrimonial property of the State. (341a) f. public works for public service
Q: What is the coverage of patrimonial property? Local government cannot withdraw a place for public se and
declare such as patrimonial without the grant from congress.
A:
1. Owned by the State in a private / proprietary capacity Even if a public plaza is built on a private land, it shall be
2. Properties of Public Dominion no longer intended for considered as property for public use and the owner of the
public use or public service land is deemed to have waived waived his right over the land
due to the continuous enjoyment and use of such as public
Q: Can the property of public dominion intended for the plaza.
development of national wealth be converted to
patrimonial property? Classification of municipal property devoted for distinctly
governmental purposes as public, under the Law of Municipal
A: No. Only property for public dominion intended for public Corporations (Special Law) should prevail over the Civil Code
use and public service when no longer intended for that (General Law).
purpose may be converted to patrimonial property and
excluded those intended for the development of national
wealth.

NOTES ON PROPERTY
LGUs have no authority to control or regulate the use of to include, respectively, the things enumerated in Chapter 1
public properties unless specific authority is vested upon and Chapter 2.
them by Congress Whenever the word "muebles," or "furniture," is used
alone, it shall not be deemed to include money, credits,
Q: What are the classification of property of political commercial securities, stocks and bonds, jewelry, scientific
subdivisions of the state? or artistic collections, books, medals, arms, clothing, horses
or carriages and their accessories, grains, liquids and
A: merchandise, or other things which do not have as their
1. Property for public use principal object the furnishing or ornamenting of a building,
2. Patrimonial property except where from the context of the law, or the individual
declaration, the contrary clearly appears. (346a)
Property for public use in provinces, cities and municipalities
are governed by the same rules as property of public
dominion of same character.
Hence, it is outside the commerce of man. As long as they are

devoted for public use or intended for public use, they are
not subject to ordinary contracts, cannot be donated,
attached, or levied upon on execution.
Title II. - OWNERSHIP
CHAPTER 1
Art. 425. Property of private ownership, besides the OWNERSHIP IN GENERAL
patrimonial property of the State, provinces, cities, and
municipalities, consists of all property belonging to private Art. 427. Ownership may be exercised over things or rights.
persons, either individually or collectively. (345a) (n)
Q: Who may own lands? Q: What is ownership?
A: Only Filipino citizens can acquire alienable and disposable A: Juridical relation of a person over a thing by virtue of
public lands. which said person has the exclusive power or authority to
receive all the benefits and advantages arising from said
Q: Can alien acquire private ownership over the lands? thing, save those restricted by law or by recognized rights of
others.
A: As a general rule, aliens have no right to acquire any public
or private lands in the Philippines. However, through Bundle of rights that may be exercised over a property;
hereditary succession, an alien may acquire alienable and independent right of exclusive enjoyment and control of the
disposable land. thing for the purpose of deriving therefrom all advantages
required by the reasonable needs of the owner (holder of
Q: What is the KRIVENKO DOCTRINE? right) and the promotion of the general welfare but subject
to the restrictions imposed by law and the right of owner;
A: The capacity to acquire private lands is made dependent real right to enjoy, dispose, exclude and recover [EDER] a
on the capacity to acquire lands of public domain. thing without limit other than those required by law or
imposed by the owner himself
Under the Krivenko Doctrine, non-Filipinos cannot acquire or
hold title to private lands or to the lands of the public A thing pertaining to one person is completely subject to his
dominion except only by way of legal succession. will in everything not prohibited by law.
It is an independent right. Can refer to both things and rights
PROVISIONS COMMON TO THE THREE PRECEDING Q: What is dominion?

CHAPTERS
A: Absolute control over a property except as may be
Art. 426. Whenever by provision of the law, or an individual restrained by law.
declaration, the expression "immovable things or property,"
or "movable things or property," is used, it shall be deemed Q: What are the kinds of ownership?

NOTES ON PROPERTY
A: 4. Jus Abutendi- Right to abuse or to consume the thing by
1. Full ownership- this includes all rights of an owner its use
2. Naked ownership- this is ownership where the right to 5. Jus Possidendi- Right to Possess
the use and the fruits has been denied. 6. Jus Vindicandi- Right to recover
3. Sole ownership- where the ownership is vested only in
one person Noteworthily, Art. 428 mentions only three rights. The reason
4. Co-ownership- when the ownership is vested in 2 or for this is that the right to enjoy is included in jus utendi, jus
more owners. fruendi, jus possidendi and jus abutendi.
NOTE: Q: What are the kinds of ownership?
Naked ownership + Usufruct = FULL OWNERSHIP A:

Full ownership – Naked Ownership = USUFRUCT 1. Full ownership- includes all the rights of an owner
Full ownership – Usufruct = NAKED OWNERSHIP 2. Naked ownership- case of usufruct; right to use and right
to fruits has been denied
RIGHTS OF AN OWNER 3. Sole ownership- ownership belongs to only one person
4. Co-ownership- ownership belongs to 2 or more
Q: What are the Rights of an Owner?
A:
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 owner’s 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

NOTES ON PROPERTY
C. Ancillary remedies common to both availed of in an original case
1. Writ of preliminary mandatory injunction of forcible entry and during
2. Writ of possession the appeal, requiring the
defendant to do something
or give back the possession
PARTICULARS PRESCRIPTIVE ISSUE
of the land
PERIOD
Writ of possession- is an
Forcible Entry – a summary Within 1 year Mere physical
order directing the sheriff to
action to recover material or from possession (de
enter into the land and give
physical possession of real dispossession facto) not
the possession thereof to the
property when a person juridical
person entitled under
originally in possession was possession nor
judgment
deprived through: ownership
a. Force
b. Intimidation Q: When is accion publiciana or accion reinvindicatoria may
c. Strategy be filed?
d. Threat
e. Stealth A: These actions is filed where in the complaint it does not
aver the state how the entry is affected and when
NOTE: The possession is dispossession started.
unlawful from the very
beginning
Q: Distinguish forcible entry and acction publiciana.
Unlawful detainer- action Within 1 year
when possession by a from unlawful
landlord, vendor, vendee, or possession A:
other person of any land or a. Expiration of FORCIBLE ENTRY ACCION PUBLICIANA
building is being unlawfully lease Filed 1 year from the time of Filed 1 year after the
withheld after the expiration b. Date of unlawful possession through: unlawful possession without
or termination of the right to demand to a. Force FISTS, notwithstanding and
hold possession by virtue of vacate b. Intimidation shall prescribe in 10 years
a contract express or implied
c. Strategy
NOTE: Possession by the 3
rd d. Threat
person is initially lawful e. Stealth
through a contract, express
or implied but upon Concerned with the issue of Concerned with the issue of
expiration or termination of right to physical possession who has the better right of
the same, the person of real property possession over real property
withheld the property from Filed at MTC Filed at RTC
its lawful owner, thus the
owner cannot exercise his
rights over the property. Q: Is there a situation where a basis for unlawful taking is a
ground for forcible entry, but the action filed is an action
Not the proper remedy if the publiciana?
purpose is not to recover
possession but to exact A: Yes.
specific performance
Action publiciana- plenary Within 10 years Possession de LIMITATIONS ON THE RIGHT OF OWNERSHIP
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
FISTS A:
Action reinvindicatoria- Within 10 to 30 ownership (a) Imposed by state
action to recover possession years i. Police power
based on allegations of ii. Power of taxation
ownership of property by iii. Power of eminent domain
plaintiff
Replevin-action or
provisional remedy for (b) Imposed by law such as legal easements
recovery of personal i. Easement relating to waters
property under Rule 60 ii. Right of way
Writ of preliminary iii. Party wall
mandatory injunction- iv. Light an view
NOTES ON PROPERTY
v. Drainage A: The power of the government to raise revenue in order to
vi. Intermediate distances support its existence and carry out its legitimate objectives
vii. Easement against nuissane
viii. Lateral and subjacent support
(c) Imposed by the owner Art. 429. The owner or lawful possessor of a thing has the
(d) Imposed by the grantor right to exclude any person from the enjoyment and
(e) Imposed by the constitution disposal thereof. For this purpose, he may use such force as
may be reasonably necessary to repel or prevent an actual
Q: What are the limitations on Ownership imposed by Law? or threatened unlawful physical invasion or usurpation of
his property. (n)
A:
1. Legal Easement PRINCIPLE OF SELF-HELP
2. Art25, NCC – during a period of public want or
emergency, thoughtless extravagance in expense for Q: What is the PRINCIPLE OF SELF-HELP?
pleasure or display may be stopped by order of the
courts at the instance of any government or private A: Authorizes an owner or lawful possessor of a property to
charitable institution use reasonable counter-force to prevent or stop another
3. Sec118, CA141 – Lands acquired under free patent or person from taking the former’s property. However, force
homestead cannot be subject to encumbrance or must be reasonable necessary to repel the unlawful physical
alienation within five years from the issuance of the invasion or usurpation of property. The threat is actual if
patent threatened unlawful physical invasion.
4. Legitime
5. Conflict of Private Rights (example, accession continua) Q: What are the requisites under principle of self-help?
Q: What are the limitations Imposed by the Owner Himself? A:

1. Reasonable force is used
A: 2. Such force is used by the owner or lawful possessor
1. Voluntary Easement 3. There is no delay
2. When owner transmits his property to another person 4. Actual or threatened physical invasion or usurpation or
(examples, lease, commodatum, donation or will) immediately after the dispossession to regain possession
3. Owner imposes restrictions or limitations on the right of
ownership at the time he continues to be the owner of Q: What is the effect of delay?
the property (ex. Donor or testator may prohibit partition
of property for a period not exceeding 20years) 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
NOTE: Perpetual prohibition to alienate is void. law into his own lands.
rd
Q: What is police power? Q: Can the right of self-help be exercised with 3 persons?
A: The inherent power of the state exercised for the purpose A: Yes, a third person who is not a possessor may repel the
of promoting general welfare, comfort and convenience of unlawful possession on the property owned by another. In
the people by restraining and regulating liberty and property. such an event, he is acting as a negotiorum gestor, the owner
must indemnify him for injuries sustained.
Q: What is the power of eminent domain?
Q: What is the test of reasonableness?
A: The inherent power of the State that enables it to forcibly
acquire private lands intended for public use upon payment A:The reasonableness of the defensive acts resorted to by a
of just compensation to the owner. It is only applicable where possessor is determined not by what he imagined to exist but
the owner is unwilling to sell or cannot accept the purchase by the objective situation.
price can there be an expropriation. It is subject to just
compensation and due process of law.
Q: What is the power of taxation? Art. 430. Every owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead hedges,

NOTES ON PROPERTY
or by any other means without detriment to servitudes
constituted thereon. (388) If a person thought that he is in a state of necessity when
actually he is not and in the process he destroyed the
Q: What is the limitation on the right of the owner to property of another, his act is illegal. If the owner himself is
enclose or fence one’s land or tenement? the cause of the imminent danger, no indemnification.
A: Every owner may enclose or fence his land or tenement by Q: What are the requisites under this Doctrine?
means of walls, ditches, live or dead hedges or by any other
means provided that in so fencing the property, no servitude A:
or easement constituted thereon should be impaired. 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
Art. 431. The owner of a thing cannot make use thereof in
such manner as to injure the rights of a third person. (n) NOTE: In case of conflict, the DOCTRINE OF STATE OF
NECESSITY will prevail, because there is no unlawful
Property owner can use his property in any manner he aggression when a person or group of persons acts pursuant
desires provided he does not injure the rights of others to the right given in a state of necessity.
No Criminal Liability or Civil Liability Except: civil liability

borne by persons for whose benefit the harm has been
Art. 432. The owner of a thing has no right to prohibit the prevented.
interference of another with the same, if the interference is
necessary to avert an imminent danger and the threatened Q: What is the right of the owner whose property is
damage, compared to the damage arising to the owner from destructed by reason of the state of necessity?
the interference, is much greater. The owner may demand
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 else’s
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
disputable presumption of ownership. The true owner must
A: It is the principle which authorizes the destruction of
resort to judicial process for the recovery of the property.
property which is lesser in value to avert the danger poised to
(n)
another property the value of which is much greater.
Q: When can there be a disputable presumption of
In this case, the owner of the sacrificial property is obliged to
ownership?
tolerate the act of destruction but is subject to
reimbursement by all those who benefited.
A: There is disputable presumption of ownership when a
person is in actual possession of the property under the claim
The interference is indispensible to avert the threatened
of ownership. Thus, the person in possession of the property
damage or danger. Note that the danger or damage must be
is presumed to be the owner subject to strong, clear and
imminent.
convincing evidence to the contrary.
NOTES ON PROPERTY
EMINENT DOMAIN
Q: What is the resort of the owner rebutting the
presumption? Q: What is the power of eminent domain?
A: The owner may resort to judicial process to recover the A: It is the power or right of the state to acquire property
property of the person. whether registered or not for public use upon payment of
just compensation.
Q: What are the requirements to prove the claim?
Q: What is expropriation?
A:
1. Proper identification of the property A: Refers to the procedure by which the property is acquired.
2. Title must be clear, strong and credible
a. If both claims are weak, the claim of the actual Q: What are the requisites of Eminent Domain?
possessor of the land will prevail because he is
the presumed owner A:
b. Where both parties are equally at fault, the (1) private property as the object of expropriation
condition of the possessor is the best (2) property is taken by the state or competent
authority
Q: Why can’t the plaintiff rely on weakness of defendant? (3) public use
(4) attended with due process
A: (5) just compensation
1. Possible that neither is the true owner, defendant-
possessor is preferred Q: What are the characteristics of the power of eminent
2. Possessor is presumed the owner domain?
3. Possessor in good faith, not required to always carry
proof of ownership A:
4. He who alleges must prove (1) inherent power of the state lodged with the
legislative
(2) superior right to acquire
(3) independent existence from the state (constitution
Art. 434. In an action to recover, the property must be merely confirms)
identified, and the plaintiff must rely on the strength of his (4) all encompassing, whenever it is needed it will be
title and not on the weakness of the defendant's claim. (n) given
Q: What are the requisites for the action to recover? Q: Who are the defendants in an expropriation case?
A: A:
1. The plaintiff must properly identified the property 1. The owners and all other persons owning, occupying or
2. The plaintiff must have better title over the defendant claiming to own the property;
3. The plaintiff must rely on the strength of his title and not 2. all those who have lawful interest in the property to be
on the weakness of defendant’s title. condemned
To identify the property, the plaintiff must establish the Q: Can the previous owner get back the property?
boundary of the land then and the established boundaries
must be exactly the same with the surveyed one. Failure to A: It depends on the tenor of the decree of expropriation
do so will justify the dismissal of action. 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
Art. 435. No person shall be deprived of his property except b. Subject to a condition- it will revert to the owner
by competent authority and for public use and always upon when the purpose of the expropriation is terminated
payment of just compensation. or abandoned, the original owner of the property
would reacquire the property
Should this requirement be not first complied with, the
courts shall protect and, in a proper case, restore the owner Q: What is the formula for Just compensation?
in his possession. (349a)
A:

NOTES ON PROPERTY
security, the owner thereof shall not be entitled to
JUST COMPENSATION = market value plus (+) the compensation, unless he can show that such condemnation
consequential damages, minus (-) the consequential benefits or seizure is unjustified. (n)
Q: What are consequential damages? POLICE POWER
A: Injuries which the owner of the property subject of Q: What is police power?
expropriation had suffered by reason of the expropriation
other than the loss of the property expropriated A: The inherent power of the state exercised for the purpose
of promoting general welfare, comfort and convenience of
Q: What are consequential benefits? the people by restraining and regulating liberty and property.
A: Gains or advantages which the property owner will enjoy A: What are the requisites for exercise of police power?
by reason of the expropriation.
A:
Q: How do you determine the market value? 1. interest of the general public (public safety, health,
security)
A: Market value is fixed at as of the date of actual taking or 2. means employed is necessary
occupation of the property by the petitioner; determined at 3. due process
the time of filing of the complaint or time of taking the 4. no payment of JC unless condemnation is unjustified
property whichever transpires first (value that property will 5. owner must be indemnified
bring, one who is not obliged to sell and one who is not
obliged to sell). Q: Differentiate police power from eminent domain?
Q: Can private property be expropriated for private use? A:
A: Yes. Socialized Housing is extra ordinary expropriation –

e.g. to solve the problem of squatting. Although, it is for Police power Eminent Domain
private purpose, it inures to the benefit of public welfare. No payment of JC With payment of JC
Property destroyed/ Property taken for public
Q: What is the effect when just compensation is not paid?
condemned use
A: As a general rule, when the property is expropriated for
public use, and the private owner was not paid of just NOTE: When condemnation is justified, no valid exercide of
compensation, he cannot recover the property, he may go to PP, the indemnity is based on damages caused by an illegal
the COA for the claim of sum of money. However, while the act. When PP is properly exercised, always no indemnification
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. Art. 437. The owner of a parcel of land is the owner of its
surface and of everything under it, and he can construct
Q: When the expropriated property is no longer used for thereon any works or make any plantations and excavations
public purpose can the previous owner recover? which he may deem proper, without detriment to
servitudes and subject to special laws and ordinances. He
A: No. When land has been acquired, for public use in fee cannot complain of the reasonable requirements of aerial
simple unconditionally, either by the exercise of E.D. or by navigation. (350a)
purchase, the former owner retains no rights in the land
SURFACE RIGHT
The nature of the title transfer is ABSOLUTE, unless there is
an express stipulation that if the expropriated properly Q: What is the extent of the ownership of a parcel of land?
ceases to serve its public use, the same shall revert to the
previous owner 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.
Art. 436. When any property is condemned or seized by
competent authority in the interest of health, safety or Q: What is surface right?

NOTES ON PROPERTY
When it is said that man owns, or may own, to the heavens,
A: The right extended to the owner of parcel of land with that merely means that no one can acquire a right to the
respect to its sub-surface is up to the extent that the owner space above him that will limit him in whatever use he can
could utilize it. However, when minerals are found in it, it will make of it as part of his enjoyment of the land. To this extent,
be owned by the State pursuant to Regalian Doctrine as these his title to the air is paramount. No other person can acquire
minerals form part of the property of the State for the any title or exclusive right to any space above him. Any use of
development of national wealth. such air or space by others which is injurious to his land, or
which constitutes an actual interference with his possession
Q: What are the extent of ownership? or his beneficial use thereof, would be trespass for which he
would have a remedy.
A:
1. Horizontally: extends up to the boundaries

2. Vertically: Art. 438. Hidden treasure belongs to the owner of the land,
a. Downwards- extends below the surface and above it building, or other property on which it is found.
to the extent required by the economic utility to the
owner, in relation to the exploitation that may be Nevertheless, when the discovery is made on the property
made of the property. But minerals and power of another, or of the State or any of its subdivisions, and by
resources of the subsoil pertains to the State chance, one-half thereof shall be allowed to the finder. If
pursuant to the Regalian Doctrine. the finder is a trespasser, he shall not be entitled to any
b. Upwards/airspace- It extends up to the reasonable share of the treasure.
requirements of aerial navigation
If the things found be of interest to science of the arts, the
Q: What is Ad coelum? State may acquire them at their just price, which shall be
divided in conformity with the rule stated. (351a)
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
Art. 439. By treasure is understood, for legal purposes, any
Q: What are the limitations or restrictions to ownership? hidden and unknown deposit of money, jewelry, or other
precious objects, the lawful ownership of which does not
A: appear. (352)
1. Cannot detriment servitudes- works, plantations,
excavations made must not prejudice easements HIDDEN TREASURE
and servitudes
2. Subject to special laws and ordinances Q: What is hidden treasure?
3. Subject to reasonable requirements of aerial
navigation A: Any hidden and unknown deposit of money, jewelry or
other precious objects, the lawful ownership of which does
Lands cannot be classified as mineral underneath and not appear.
agricultural on the surface; rights over a land are indivisible –
land must either be completely mineral or completely Hidden treasures refer to processed items such as deposit of
agricultural. money, jewelry, precious objects (gold bar, silver coins). It
does not refer to raw materials which are considered of value
Construction of underground tunnels by NAPOCOR without which are considered as natural resources.
the consent of the owners of the lands affected deprived the
owners in the construction of motorized deep wells – Q: State the rule regarding hidden treasure.
underground tunnel imposed limitations on Ibrahim’s use of
property (esp. the sub-terrain portion), hence, owners are A:
entitled to just compensation G.R.: If owner is finder, it totally belongs to the owner of the
land, building, or other property where it is found.
Caves are part of national wealth – apply regalian doctrine
whether the entrance is located in a private or public land XPN: If the finder is different from the owner, the finder is
and whether entrance is naturally formed or manmade (RA entitled to 1/2
9072 – National Caves and Cave Resources Management and
Protection Act) Q: What are the requisites to be entitled to ½ share?

NOTES ON PROPERTY
A: Q. What if the owner of the land hired services of a group of
1. Discovery was made on the property of another, or of man for the purpose of finding a hidden treasure, if there is
the State or any of its political subdivisions indeed a hidden treasure, who owns the hidden treasure?
2. Discovery was made by chance
3. He is not a trespasser or agent of the landowner. A. It depends. If there is an agreement between the owner
and the hired men then the latter will be entitled for a
NOTE: The state may in the interest of science or arts acquire portion of the treasure. Absent such agreement, the treasure
such hidden treasure at a just price. belongs to the owner of the property.
Q: What is the meaning of ‘By Chance”? Q. A scavenger found a bag filled with bank notes and cash
in a dumpsite will it be considered a hidden treasure?
A: The finder had no intention to search for the treasure.
There is no agreement between the owner of the property A. No. Bills and notes from the banks have serial numbers.
and the finder for the search of the treasure. The note’s identity can be traced easily, one of the requisites
of hidden treasure is lacking that is that the owner appears to
Q: Is a trespasser entitled to get a share? be unknown.
A: No. he cannot be allowed to benefit for his unlawful act. Q. How about the Yamashita treasure?
RA 8492 (National Museum Act of 1998) – permits are A. Under PD 172, 25% is granted to the finder and 75% will
required for the discovery / recovery of hidden treasures, belong to the State.
shipwrecks / sunken vessels recovery exclusively for materials
of cultural and historical values such as:
a. Arts
b. Archeological artifacts
c. Ecofacts
d. Relics
e. Other materials embodying the cultural and natural
heritage of the Filipino nation as well as those of
foreign origin
CHAPTER 3
DENR AO 2002-04 as amended by DENR AO 2004-2003, in RIGHT OF ACCESSION
relation to EO 35 – permits for treasures which are not of
cultural and historical value whether or not hunting is to be GENERAL PROVISIONS
conducted on private or governmental land and upon
discovery is turned over to National Museum for Art. 440. The ownership of property gives the right by
determination of whether it has cultural or historical value – accession to everything which is produced thereby, or which
if affirmative, items will be given to National Museum; if is incorporated or attached thereto, either naturally or
negative, turned over to an oversight committee of DENR artificially. (353)
Q: What is the rule regarding the sharing of the net SECTION 1. - Right of Accession with Respect to
proceeds? What is Produced by Property
A: Q: What is right of accession?

1. Within public lands – 75% to government; 25% to permit
holder A: Right of ownership of which an owner of a thing has over
2. Within private lands – 30% to the government; 70% the products of said thing, as well as to all things inseparably
shared by permit holder and landowner attached or incorporated thereto, whether naturally or
3. Shipwreck / sunken vessel recovery – 50% to artificially produced, incorporated, attached.
government; 50% to permit holder
Q: What is accession continua?
Q. What if the treasure cannot be divided?
A: Right to things attached or incorporated.
A. Co-ownership between the finder and owner of the land
will be created Q: What are the classification of accession?
A:

NOTES ON PROPERTY
I. Accession to the fruits (discreta) 1. natural fruits;
a. Natural fruits 2. industrial fruits;
b. Industrial fruits 3. civil fruits. (Art. 441, NCC)
c. Civil fruits
II. Accession by attachment or incorporation (continua)

a. Real Property Art. 442. Natural fruits are the spontaneous products of the
1. Accession industrial soil, and the young and other products of animals.
a. Building
ii. planting Industrial fruits are those produced by lands of any kind
ii. sowing through cultivation or labor.
2. Accession natural Civil fruits are the rents of buildings, the price of leases of
i. alluvium lands and other property and the amount of perpetual or
ii. avulsion life annuities or other similar income. (355a)
iii.change of course of rivers
iv.formation of islands
b. Personal property Art. 443. He who receives the fruits has the obligation to pay
1. Adjunction or conjunction the expenses made by a third person in their production,
i. engraftment gathering, and preservation. (356)
ii.attachment
iii. weaving
iv.painting
v.writing Art. 444. Only such as are manifest or born are considered
as natural or industrial fruits.
2. Mixture
3. specification With respect to animals, it is sufficient that they are in the
womb of the mother, although unborn. (357)
Q: Is accession a mode of acquiring ownership?
A: No. KINDS OF FRUITS

Q: Under Art. 712, what are the modes of acquiring Q: What are natural fruits?
ownership?
A: Natural fruits are the spontaneous products of the soil,
A: and the young and other products of animals.
b. Occupation
c. Prescription Q: What are the 2 Kinds of Natural Fruits
d. Donation
e. Succession 1. Spontaneous products of the soil – those which
f. Law appear without intervention of human labor
g. Intellectual Creation 2. Young and other products of animals
h. Tradition
i. As a consequence of contracts Q: What are industrial fruits?
A: Industrial fruits are those produced by lands of any kind

through cultivation or labor.
Art. 441. To the owner belongs:
(1) The natural fruits; Q: What are civil fruits?
(2) The industrial fruits;
(3) The civil fruits. (354) A: Civil fruits are the rents of buildings, the price of leases of
lands and other property and the amount of perpetual or life
Q: What is the rule on the owners right of accession with annuities or other similar income.
respect to what is produced by his property?
Q: The general rule is that the fruits will belong
A: To the owner belongs the: automatically the owner of the thing which produces fruits
NOTES ON PROPERTY
following the principle that accessory follows the principal.
What are the exceptions? Art. 445. Whatever is built, planted or sown on the land of
another and the improvements or repairs made thereon,
A: belong to the owner of the land, subject to the provisions of
(a) antichresis – fruits pertain to the antichretic creditor with the following articles. (358)
the obligation to apply the fruits to the payment of the
interest first, if any and then to the principal Whatever is built, planted or sown on the land of another and
(b) lease of lands which yield fruits; lessee who gets the the improvements made belong to the owner of the land.
fruits This rule is however subject to the good faith or bad faith of
(c) usufruct; usufructuary is entitled to fruits the BPS LO.
(d) possessor in good faith; entitled to fruits received before
before the possessor is legally interrupted in his Exceptions:
possession 1. if value of improvement is more than the value of land, it
(e) fruits of property donated and subject to collation shall belong to conjugal partnership subject to
reimbursement of the value of the land to the owner
Q: Who are the principal parties in accession? spouse
2. value is less than the value of the land, it shall belong to
A: owner spouse, subject to the reimbursement of the value
1. land owner – without which there can be no accession of the property of the CPG
2. builder
3. planter Q: What are the INDUSTRIAL ENDEAVORS?
4. sower
A:
Obligation of the owner who receives the fruit from a third 1. building – construction of any kind, with roof for
person residential, office, social, commercial
2. planting – setting into the soil or land seeds of trees
Q: What is the obligation of the owner who receives the 3. sowing – act of scattering or spreading of germinated
fruit from a third person? seeds indiscriminately or evenly
A: He who receives the fruits has the obligation to pay the

expenses made by a third person in their production, Art. 446. All works, sowing, and planting are presumed
gathering, and preservation. made by the owner and at his expense, unless the contrary
is proved. (359)
NOTE: Only such as are manifest or born are considered as
natural or industrial fruits. All works are presumed made by the owner at his expenses,
unless contrary is proved
Q: What is the rule regarding the animals?
Q: What is accession continua?
A: With respect to animals, it is sufficient that they are in the
womb of the mother, although unborn. A: Accession Continua involves the union of two or more
things belonging to different owners in such a manner that
Q. What kind of fruits are cloned animals? they cannot be separated from each other without causing
substantial injury to the things involved. It applies only where
A. It depends on two options. First, applying the literal there is controversy as to who shall be entitled to the
definition of the law that even if the animal is made through resulting union of 2 or more things belonging to different
the intervention o man, it is considered as a natural fruit, on owners.
the other hand, applying statutory construction (history of
the provision); definitely the definition of natural fruit that This presupposes the absence of any agreement, express or
time was the young produced by a mother animal. Nobody implied, between or among the owners of different things
had foreseen during 1950’s that cloning would be possible involved.
hence considering human intervention, it can now be
considered as industrial fruit. If there is an agreement, parties shall be governed by their
agreement and secondarily by law but not the law on
accession continua
SECTION 2. - Right of Accession with Respect RULES:

to Immovable Property

NOTES ON PROPERTY
1. He who is in good faith may be held responsible but will
not be penalized. LAND OWNER IS BUILDER, OWNER OF MATERIALS
2. To the owner of the thing belongs the extension or PLANTER, or SOWER
increase of such thing. GOOD FAITH
3. Bad faith of one party neutralizes the bad faith of the Acquires the building, etc. 1. Remove the materials if
other – in pari delicto after paying the indemnity without injury to work or
4. There should be no unjust enrichment at the expense of for value of materials without plantings or
the others. constructions being
5. Bad faith involves liability for damages. destroyed.
6. Accessory follows principal. 2. Receive indemnity for
7. Accession exists only if the incorporation is such that the value of materials
separation would either seriously damage the thing or BAD FAITH GOOD FAITH
diminish its value. Acquire after paying the 1. Remove materials in any
value of materials and event
Q: What is industrial accession? indemnity for damages but 2. Be indemnified for
subject to the right of owner damages
A: It applies only to those involving lands and material of materials to remove
belonging to different owners GOOD FAITH BAD FAITH
Acquire without paying Lose materials without right
Q: What is a building? indemnity to be indemnified
BAD FAITH
A: It is a generic term for all architectural work with roof, Same as though both acted in good faith (in pari delicto rule
built for the purpose of being used as man’s dwelling or for applies
offices, clubs or theatres – does not include partitions,
railings, counters and shelves.
Art. 448. The owner of the land on which anything has been
built, sown or planted in good faith, shall have the right to
Art. 447. The owner of the land who makes thereon,
appropriate as his own the works, sowing or planting, after
personally or through another, plantings, constructions or
payment of the indemnity provided for in Articles 546 and
works with the materials of another, shall pay their value; 548, or to oblige the one who built or planted to pay the
and, if he acted in bad faith, he shall also be obliged to the
price of the land, and the one who sowed, the proper rent.
reparation of damages. The owner of the materials shall
However, the builder or planter cannot be obliged to buy
have the right to remove them only in case he can do so the land if its value is considerably more than that of the
without injury to the work constructed, or without the building or trees. In such case, he shall pay reasonable rent,
plantings, constructions or works being destroyed.
if the owner of the land does not choose to appropriate the
However, if the landowner acted in bad faith, the owner of
building or trees after proper indemnity. The parties shall
the materials may remove them in any event, with a right to agree upon the terms of the lease and in case of
be indemnified for damages. (360a)
disagreement, the court shall fix the terms thereof. (361a)
Q: What is GOOD FAITH?
BUILDER, PLANTER, SOWER IN GOOD FAITH
A: Not aware that there exists in his title or mode of
Q: What is the rule when B/P/S is in good faith?
acquisition any flaw which invalidates it. If owner of the land
believes that he is the owner of the materials or owner of the A:
materials thought he is thought he is the owner of the land a. Land Owner may appropriate after indemnifying
B/P/S with right of retention
Q: What is BAD FAITH?
b. Oblige b/p to pay price of land and sower to pay rent
(value of the land must not be greater than value of
A: Possesses in any case contrary to the foregoing. The
accession)
landowner knows from the start that he is not the owner of
c. B/P/S will be reimbursed for necessary and useful
materials or the owner of the materials knew from the start
expenses
that his materials are used and did not oppose.
Q: What if the value of the land is greater than the value of
Note that good faith is always presumed; and upon him who
accession?
alleges bad faith on the part of the possessor rests the
burden of proof.

NOTES ON PROPERTY
A: If value of the land is greater than value of accession and
owner does not appropriate, parties shall agree on the terms BUILDER, PLANTER, SOWER IN GOOD FAITH
of lease. If there is disagreement, court shall fix the terms
GR: The builder planter sower in bad faith on the land of
Q: What is the right of retention? another, loses the improvements without right of indemnity
therefore
A: Right granted as a security for the possessor’s (b/p/s) right
to indemnity for the improvements made by him and he is Exception: The B/P/S/ is entitled to reimbursement for
not bound to pay rent. The purpose of this right is to necessary expenses of preservation of the land.
guarantee full and prompt reimbursement.
Q: What is the reason for the exception?
There can be no offsetting of reimbursement for necessary
and useful expenses with fruits received by the b/p/s. A: Because the owner would still incur the expenses, if not
the property will deteriorate.
Q: What if landowner refuses to exercise either option?
A: Remedy is to compel the landowner to make a choice

Art. 450. The owner of the land on which anything has been
GR: Art 448 cannot apply to a co-owner who is a b/p/s on the built, planted or sown in bad faith may demand the
land owned in common – governed by rules of co-ownership demolition of the work, or that the planting or sowing be
removed, in order to replace things in their former condition
XPN: co-ownership is terminated at the expense of the person who built, planted or sowed;
or he may compel the builder or planter to pay the price of
When co-ownership is terminated by a partition and it the land, and the sower the proper rent. (363a)
appears that the house of an erstwhile co-owner has
encroached upon a portion pertaining to another co-owner RIGHTS OF LAND OWNER IN GOOD FAITH
which was however made in good faith, then the provisions WHEN BUILDER, PLANTER, SOWER IN BAD FAITH
of Art448 should apply to determine the respective rights of
the parties. Landowner can:
1. appropriate what has been built, planted or sown
Bad faith cannot be imputed to a registered owner of land without obligation to pay indemnity
when a part of his building enroaches upon a neighbor’s land 2. demand from builder to demolish or remove what has
simply because he is supposedly presumed to know the been built, planted or sown at latter’s expense
boundaries of his land as prescribed in his certificate of title 3. compel the b,p, to pay the price of the land, or sower to
unless one is versed in the science of surveying, no one can pay the reasonable rent
determine the precise extent or location of his property by 4. seek damage from b,p,s
merely examining his paper title
Q: What are NECESSARY EXPENSES?

Art. 451. In the cases of the two preceding articles, the
Q: They include repairs for the preservation, without which landowner is entitled to damages from the builder, planter
thing will deteriorate. or sower. (n)
Q: What are USEFUL EXPENSES?
A: Expenses incurred for the greater utility or productivity or Art. 452. The builder, planter or sower in bad faith is
for enhancement. entitled to reimbursement for the necessary expenses of
preservation of the land. (n)
Q: What are LUXURIOUS EXPENSES?
BUILDER, PLANTER, SOWER IN BAD FAITH
A: Those which you do not need.
Q: What are the rights of a land owner when the builder,
planter, or sower is in bad faith?
Art. 449. He who builds, plants or sows in bad faith on the A:

land of another, loses what is built, planted or sown without a. LO has right of remotion -or-
right to indemnity. (362)

NOTES ON PROPERTY
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 Q: What is alluvium?
the accession)
B/P/S may ask for reimbursement for necessary expenses A: It is the soil imperceptibly and gradually deposited on
only lands adjoining the banks of rivers caused by the current of
the water.
Art. 453. If there was bad faith, not only on the part of the Q: What are the essential elements of accretion?
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 A:
one and the other shall be the same as though both had 1. deposit of soil or sediment be gradual and imperceptible
acted in good faith. 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)
It is understood that there is bad faith on the part of the 3. the land where accretion takes place is the adjacent of
landowner whenever the act was done with his knowledge the banks of river
and without opposition on his part. (354a)
Q: Who is the Riparian owner?
A: He is the owner of the land adjoining rivers.

Art. 454. When the landowner acted in bad faith and the
builder, planter or sower proceeded in good faith, the Q: Why is the soil deposited granted to owners of lands
provisions of article 447 shall apply. (n) adjoining the banks of rivers?
A:
1. to offset his loss for possible erosion of his estate due to
Art. 455. If the materials, plants or seeds belong to a third the current of the river
person who has not acted in bad faith, the owner of the 2. to compensate for his sufferings or burdens arising from
land shall answer subsidiarily for their value and only in the the subjection of his land to encumbrances and legal
event that the one who made use of them has no property easements
with which to pay. 3. in the interest of agriculture it is more practical to give it
to one who is in best position to cultivate it
This provision shall not apply if the owner makes use of the
right granted by article 450. If the owner of the materials, Q: The general rule is that an alluvion is automatically
plants or seeds has been paid by the builder, planter or owned by the riparian owner from the moment the soil
sower, the latter may demand from the landowner the deposit can be seen. Does he have to register it?
value of the materials and labor. (365a)
A: Yes, the additional area does not automatically become
registered land. The riparian owner must register the
additional area.
Art. 456. In the cases regulated in the preceding articles,
Q: What is the effect of failure to register?
good faith does not necessarily exclude negligence, which
gives right to damages under article 2176. (n)
A: Failure to register the acquired alluvial deposit by
accretion subjects such accretion to acquisition thru
prescription by third persons.
Art. 457. To the owners of lands adjoining the banks of Q: What is the rule regarding the land caused by special
rivers belong the accretion which they gradually receive works (e.g. dikes) expressly intended by him to bring about
from the effects of the current of the waters. (336) accretion (e.g. for reclamation purposes) and not to protect
his property from destructive force of the water of the
ACCRETION river?
Q: What is accretion? A: They do not form part of the 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.
NOTES ON PROPERTY
Art. 458. The owners of estates adjoining ponds or lagoons
do not acquire the land left dry by the natural decrease of A:
the waters, or lose that inundated by them in extraordinary
floods. (367) ALLUVIUM AVULSION
1. process of soil 1. process is sudden and
The owners of estates adjoining ponds or lagoons do not deposit is gradual and abrupt
acquire the land left dry by the natural decrease of the imperceptible 2. property detached is
waters, or lose that inundated by them in extraordinary 2. soil deposit is not identifiable
floods. This rule does not apply to lakes. identifiable 3. ownership of
3. alluvio belongs to the detached property is
Q: What is a pond? owner of the land to retained subject to
which the soil has removal within 2
A: A body of stagnant water without any outlet. been deposited years
4. ownership granted to 4. ownership of the
Q: What is a lagoon? riparian owner is detached property is
automatic not automatically
A: Small lake but not very deep the hollow of which is vested
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. 460. Trees uprooted and carried away by the current of
the waters belong to the owner of the land upon which they
may be cast, if the owners do not claim them within six
Art. 459. Whenever the current of a river, creek or torrent months. If such owners claim them, they shall pay the
segregates from an estate on its bank a known portion of expenses incurred in gathering them or putting them in a
land and transfers it to another estate, the owner of the safe place. (369a)
land to which the segregated portion belonged retains the
ownership of it, provided that he removes the same within
two years. (368a)
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
AVULSION OR DELAYED ACCESSION
Q: What is the basis of 4 years?
Q: What is Avulsion?
A: It is the prescriptive period for acquiring movables.
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. Art. 461. River beds which are abandoned through the
natural change in the course of the waters ipso facto belong
Note that the owner of the land which had segregated to the owners whose lands are occupied by the new course
retains his ownership over the land provided he removes the in proportion to the area lost. However, the owners of the
same from where it was annexed within two years from the lands adjoining the old bed shall have the right to acquire
time it was segregated from its source and annexed to the same by paying the value thereof, which value shall not
another tenement. 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 The owner of the invaded lad becomes the owner of the old
years – claim is not equal to removal (actual/ physical). It is river bed in proportion to the area lost. The automatic
only possible if there is an agreement to pay the other ownership is granted by law.
riparian owner the segregated portion; otherwise there must
be physical and actual removal. However, this article does not apply if the river has breached
out and created a new course without abandoning the
Q: Differentiate alluvium and avulsion? original river bed. Dried up river for lack of flowing waters are

NOTES ON PROPERTY
owned by the state since no owners were deprived of their
land. FORMATION OF ISLANDS
Q: What are the rules as to formation of Islands (Art. 463-

465)?
Art. 462. Whenever a river, changing its course by natural
causes, opens a new bed through a private estate, this bed A:
shall become of public dominion. (372a) a. If formed by the sea:
i. Within territorial waters – State
If a river changed its course, and cuts a new bed in a private ii. Outside territorial water – to the first occupant
estate, the new river bed becomes property of public b. If formed in lakes, or navigable or floatable rivers - State
dominion. 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
Art. 463. Whenever the current of a river divides itself into by halves
branches, leaving a piece of land or part thereof isolated,
the owner of the land retains his ownership. He also retains There is no accession when islands are formed by the
it if a portion of land is separated from the estate by the branching of river; the owner retains ownership of the
current. (374) isolated piece of land.
Q: What are the requisites under the 2 preceeding articles?
A: SECTION 3. - Right of Accession

a. there must be a natural change in the course of the with Respect to Movable Property
waters of the rivers
b. change must be abrupt or sudden Art. 466. Whenever two movable things belonging to
c. change must be permanent different owners are, without bad faith, united in such a
d. there must be abandonment by the owner of the bed way that they form a single object, the owner of the
principal thing acquires the accessory, indemnifying the
Once the river bed has been abandoned, the owner of the former owner thereof for its value. (375)
invaded land becomes the owner of the abandoned bed to
the extent as provided in Art. 462. No positive act is needed ADJUNCTION
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 adjunction?
It does not apply to cases where the river simply dries up A: It is the process by virtue of which 2 movable things
because there are no persons whose lands are occupied by belonging to different owners are, without bad faith, united
the waters of the river. in such a way that they form a single object and each of
things united.
Q: What are the characteristics of Adjunction? (UST)

Art. 464. Islands which may be formed on the seas within
the jurisdiction of the Philippines, on lakes, and on A:
navigable or floatable rivers belong to the State. (371a)
1. United forming a single object;
2. Inseparable that their separation would impair their
nature or result in substantial injury to either thing;
Art. 465. Islands which through successive accumulation of 3. At least 2 movables belonging to different owners.
alluvial deposits are formed in non-navigable and non-
floatable rivers, belong to the owners of the margins or Q: Who shall be the owner of the resulting object?
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 A: The resulting object shall belong to the owner of the
case it shall be divided longitudinally in halves. If a single principal thing, but with the obligation to indemnify the
island thus formed be more distant from one margin than owner of the accessory for the value of the latter.
from the other, the owner of the nearer margin shall be the
sole owner thereof. (373a)
NOTES ON PROPERTY
NOTE: Good faith is necessary in adjunction. If the owner of Art. 467. The principal thing, as between two things
the principal thing acted in bad faith, Art. 466 will not apply incorporated, is deemed to be that to which the other has
but rather Art. 470 paragraph 2: been united as an ornament, or for its use or perfection.
(376)
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 Q: What are the primary factors to determine the Principal
right to choose between the former paying him its value or and the Accessory?
that the thing belonging to him be separated, even though
for this purpose it be necessary to destroy the principal A:
thing; and in both cases, furthermore, there shall be
indemnity for damages. 1. That the thing which is incorporated to another as
an ornament is the accessory and the other is the
Q: What are the different classes of adjunction or principal;
conjuncrion? 2. The thing which is added to or joined is the
accessory and the other is the principal.
A:
NOTE: The PRINCIPAL THINGS is that deemed to be that to
1. Escritura or writing- paper will pertain to writer; which the other has been united as an ornament, or for its
2. Inclusion or engraftment- precious stone will pertain use or perfection.
to the owner of the ring;
3. Pinture-canvass will pertain to the painter; Test of Intention or Importance – which do you consider as
4. Soldering or soldadura: mere ornamentation; an object may be Principal or accessory
depending on the intention.
a. Ferruminacion- if both the accessory and principal
objects are of the same metal; and
b. Plumbatura-if the accessory and principal objects are
of different materials Art. 468. If it cannot be determined by the rule given in the
preceding article which of the two things incorporated is the
5. Tejido or Weavering-dress will pertain to the weaver principal one, the thing of the greater value shall be so
who owns the cloth. considered, and as between two things of equal value, that
of the greater volume.
Q: What are the tests to determine the principal?
In painting and sculpture, writings, printed matter,
A: engraving and lithographs, the board, metal, stone, canvas,
paper or parchment shall be deemed the accessory thing.
1. That to which the other has been united as an ornament (377)
or for its use or perfection;
(if it cannot be determimed from Art. 467) Q: What are the secondary factors to determine Principal
2. That of greater value; and Accessory?
(if 2 things are of equal value (468)
3. That of greater volume (468); A: If the primary factors cannot be used, the following shall
(when the value and volume cannot be applied be applied:
accroding to Senator Tolentino);
4. That which has greater merits, utility and volume of a. The one which has the greater value is the principal;
things. b. If they are of equal value, then the one with greater
volume shall be considered as the principal.
Test to determine principal in adjunction
If you cannot determine the principal:
a. Rule of importance and purpose
b. That of greater value 1. that one with greater value, or
c. That of greater volume 2. if same value, that of greater volume, or
d. That of greater merits – take into consideration all 3. if same volume, based on the merit
pertinent provisions applicable as well as the
comparative merits, utility and volume NOTE: If 3 or more objects involved, only 1 is considered as
the principal and the others are accessories.

NOTES ON PROPERTY
rd
The present article contemplates a 3 person who is called as
Art. 469. Whenever the things united can be separated the owner of the material. Accordingly, the owner of the
without injury, their respective owners may demand their material employed without his consent has a right to an
separation. indemnity:
Nevertheless, in case the thing united for the use, a. delivery of a thing similar in kind and value and in all
embellishment or perfection of the other, is much more other respects
precious than the principal thing, the owner of the former b. payments of the price as appraised by experts in
may demand its separation, even though the thing to which case the parties cannot stipulate on the price
it has been incorporated may suffer some injury. (378)
Art. 472. If by the will of their owners two things of the

Art. 470. Whenever the owner of the accessory thing has same or different kinds are mixed, or if the mixture occurs
made the incorporation in bad faith, he shall lose the thing by chance, and in the latter case the things are not
incorporated and shall have the obligation to indemnify the separable without injury, each owner shall acquire a right
owner of the principal thing for the damages he may have proportional to the part belonging to him, bearing in mind
suffered. the value of the things mixed or confused. (381)
If the one who has acted in bad faith is the owner of the Accession by Mixture
principal thing, the owner of the accessory thing shall have a
right to choose between the former paying him its value or Q: What do you mean by confusio?
that the thing belonging to him be separated, even though
for this purpose it be necessary to destroy the principal A: Confusio results when liquids belonging to different
thing; and in both cases, furthermore, there shall be owners got mixed by agreement or by chance.
indemnity for damages.
Q: What do you mean by commixtio?
If either one of the owners has made the incorporation with
the knowledge and without the objection of the other, their A: It results when solid matters are mixed by agreement or by
respective rights shall be determined as though both acted chance:
in good faith. (379a)
1. By agreement- parties may stipulate on the terms and
Applicable Rules conditions and shall be governed by the laws on
obligations and contracts;
a. Owner of ACCESSORY made the incorporation in BF shall 2. Proportionate ownership- when the things mixed or
lose the thing incorporated and have the obligation to confused are not separable without injury, each owner
indemnify the owner of the principal thing for damages shall have the right to the resulting thing proportionate
he may have suffered; to the VALUE of the thing he owns; and
b. Owner of PRINICPAL in BF: owner of the accessory shall 3. By will of the parties- state of co-ownership is created if
have the right to choose between the former paying him mixture is created by chance.
its value or the thing belonging to him be separated,
even if it is necessary to destroy the principal either way  Mixture by negligence: co-ownership; damages for the
there will be indemnity for damages; and negligent acts (culpa aquilana)
c. Either the owner of principal or accessory made the
incorporation with the knowledge of the other and  Negligence is not equal to BF
raising no objection, both of them shall be regarded
acting in good faith.
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
Art. 471. Whenever the owner of the material employed confused, the rights of the owners shall be determined by
without his consent has a right to an indemnity, he may the provisions of the preceding article.
demand that this consist in the delivery of a thing equal in
kind and value, and in all other respects, to that employed, If the one who caused the mixture or confusion acted in bad
or else in the price thereof, according to expert appraisal. faith, he shall lose the thing belonging to him thus mixed or
(380) confused, besides being obliged to pay indemnity for the

NOTES ON PROPERTY
damages caused to the owner of the other thing with which
his own was mixed. (382) Q: What are the 2 kinds of mixtures?
Rules applicable A:
a. Commixtion – mixture of solids
1. By WILL of ONLY ONE OWNER, but in GF = rights of the b. Confusion – mixture of liquids
owners determined by Provisions of preceding article
(proportion to value/ co-ownership); and Q: What are the rules applicable to determine ownership?
2. One who cause confusion or mixture in BF = shall LOSE
the thing belonging to him plus obligated to pay damages A:
caused to the owner of the other thing
a. By will of both owners or by accident: each owner
Rules on Who is Entitled acquires an interest in portion to the value of his material
b. By one owner in good faith: apply rule (a)
a. Adjunction in Good faith by either owner: c. By one owner in bad faith:
i. He loses his rights to his materials
GR.: Accessory follows the principal ii. He is liable for damages
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
Art. 474. One who in good faith employs the material of
b. Adjunction in bad faith by the owner of the principal: another in whole or in part in order to make a thing of a
different kind, shall appropriate the thing thus transformed
Option of owner of accessory as his own, indemnifying the owner of the material for its
value.
i. To recover the value plus damages
ii. To demand separation plus damages If the material is more precious than the transformed thing
or is of more value, its owner may, at his option,
c. Adjunction in bad faith by the owner of the accessory: appropriate the new thing to himself, after first paying
indemnity for the value of the work, or demand indemnity
i. He loses the accessory for the material.
ii. He is liable for damages
If in the making of the thing bad faith intervened, the owner
Q. When is separation of things allowed? of the material shall have the right to appropriate the work
to himself without paying anything to the maker, or to
A. Article 469 (WAB) demand of the latter that he indemnify him for the value of
the material and the damages he may have suffered.
1. Separation without injury; However, the owner of the material cannot appropriate the
2. Accessory is more precious than the principal; and work in case the value of the latter, for artistic or scientific
3. Owner of the principal acted in bad faith reasons, is considerably more than that of the material.
(383a)
Q. How is indemnity made?
Rules applicable
A.
G.R.: The accessory follows the principal but the cost will
1. Delivery of a thing equal in kind and value; or depend on the good faitg or bad faith.
2. Payment of its price including the sentimental value.
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.
MIXTURES (ARTS. 472-473)
Q: What do you mean by Specificatio?
Q: What do you mean by mixtures?
A: It is the giving of a new form to a material belonging to
A: It is the union of materials where the components lose another person through the application of labor or industry
their identity. where the material used in transformed into another thing or

NOTES ON PROPERTY
changed in identity. Accordingly, the nature of the object is
retained even if transformed. XPN: Material is more valuable than the resulting thing
the owner of material has the option:
Eg: Mango fruit into mango juice, grapes into wine i. Acquire the work and indemnify the laborer except
where the value of work is greater due to artistic or
Rules applicable scientific reasons; or
ii. To demand indemnity for the material
(1) When MAKER (principal) is in GF:
b. Owner of principal (worker) in bad faith, owner of the
a. Maker shall appropriate the new thing, but must material has the option:
indemnify the owner of the material for the value
b. The maker cannot appropriate the new thing if the i. To acquire result without indemnity
material transformed is worth more than the new thing; ii. To demand indemnity for materials plus damages
The OM can appropriate the new thing subject to c. Owner of material in bad faith
payment of the value of the work or demand indemnity
for the material with damages. CHAPTER 3
QUIETING OF TITLE (n)
(2) When MAKER is in BF:
Q: Discuss the remedy of queting title to land.
a. OM can appropriate the work without paying for the
labor or industry exerted A: It is an equitable remedy; a proceeding in equity, the
b. OM may demand for indemnity of the materials plus purpose of which is the declaration of the invalidity of a claim
damages on a title or the invalidity of an interest in property adverse to
that of to the plaintiff. It is the remedy for removal of cloud
OM cannot appropriate the work is the value is more or doubt or uncertainty with respect to title to real property.
than the value of material. (due to artistic or scientific
importance of work) Q: Discuss the nature of the action.
A: It is quasi in rem filed against a person or persons but

judgment will apply to the property in dispute.
Art. 475. In the preceding articles, sentimental value shall be
Classes of Quieting of Title
duly appreciated. (n)
1. Remedial (action to quiet title) – action may be brought
Q: What do you mean by sentimental value?
to remove a cloud or quiet title to real property or an
interest therein. Accordingly, the cloud or doubt is
A: It refers to the value placed by the owner on the property
already there.
is more than the actual value by reason of some sentiments
2. Preventive (action quia timet) – prevent a future cloud
like love, affection, respect, honor.
or doubt from being cast upon the title to real property
or an interest therein; there is an anticipation of a doubt
in the title/
SPECIFICATION (ARTS. 474-475)
Q: To what kind of property does this remedy apply?
Q: What do you mean by specification?
A: It applies to real property, except vessels which are
A: It is the transformation of another’s material by the
treated as real properties.
application of labor. The material becomes a different kind.
Labor is the principal.
G.R.: Quieting of title applies only to real property.
Q: What are the rules governing specification?
XPN: Applies to personal property (ex. Vessel not intended to
A: remain at a fixed place)
a. Owner of principal (worker) in good faith; Q: What are the requisites for this remedy to apply?
i. Maker acquires the new thing A:

ii. He must indemnify the owner of material
NOTES ON PROPERTY
(1) Plaintiff has a title to a real property or interest: NOTE: Action to quiet title does not apply to boundary
disputes since in such cases both parties have their own titles.
a. Legal title – owner is the registered owner of the The grounds or sources enumerated are exclusive.
property.
b. Equitable title – person has the beneficial ownership There must appear valid or effective, extraneous evidence
to the property (beneficiary owner). needed to prove invalidity and which must be in truth and in
fact invalid, ineffective, voidable or unenforceable and which
E.g. The right of an heir in succession. may be prejudicial to the title of the owner or possessor.
Q: What is the effect of the absence of such title or interest? In an action for quieting of title, plaintiff need not be in
possession of the property – if plaintiff is in possession of the
A: It would warrant the dismissal of the case. property, action is imprescriptible since possession is a
continuing right as is the right to defend such possession;
(2) Documents owner of real property in possession has a continuing right to
(3) There is nothing wrong in the document on its face/ it is invoke a court of equity to remove a cloud that is a
valid; but in reality there may be evidence outside of the continuing menace to his title.
4 corners of the document (extrinsic evidence) which
may declare it null and void; and However, if he is not in possession, the prescriptive period is
(4) Must be valid on its face, need evidence to prove its as follows:
invalidity; prejudicial to plaintiff’s title.
(1) ordinary prescriptive period of 10years;
REQUISITES (2) extraordinary prescriptive period of 30years
1. Legal or equitable title to or interest in the real property NOTE: Where the TCT is null and void, there can be no cloud
subject of the action; over the title.
2. Cloud on title to real property or any interest therein;
and Even if pleading filed is for “Annulment of Title and/or
3. Deed, claim, encumbrance or proceeding claimed to be Reconveyance” but plaintiff is in actual possession, claiming
casting cloud on his title must be shown to be in fact lawful ownership and seeking to remove a cloud, it will be
invalid or inoperative despite its prima facie appearance considered as an action for quieting of title as the allegations,
of validity or legal efficacy not the caption of the pleading, determines the nature of the
action.
Q: Distinguish between legal title and equitable title.
Q: Under what cases does this remedy not apply?
A:
A:
LEGAL TITLE EQUITABLE TITLE
Refers to full or naked Refers to beneficial interest 1. To questions involving interpretation of documents;
ownership registered; in the property and the legal 2. To mere written or oral assertions of claims, EXCEPT:
title of which belongs to a. If made in a legal proceeding
another b. If it is being asserted that the instrument or
entry in plaintiff’s favor is not what it purports
Q: What is a cloud on Title? to be
3. To boundary disputes;
A: It refers to semblance of title which appears in some legal 4. To deed by strangers to the title UNLESS purporting
form but which is in fact unfounded. to convey the property of the plaintiff;
5. To instruments invalid on their face; and
Q: What are the sources of cloud in one’s title? 6. Where the validity of the instrument involves pure
question of law
A:
Q: What is the test to determine if the action to quiet title is
a. Instrument-contract, deed of conveyance, mortgage, proper?
assignment, waiver;
b. Records, claim, encumbrance – attachment, liens, A: The test is the presence of any evidence which is outside of
inscription, adverse claim, lis pendens on a title; and the document itself.
c. Any proceedings like extrajudicial partition.
An ejectment is a quieting process but not one for
determining ownership:
NOTES ON PROPERTY
4. prescription
Plaintiff in possession: File an action to remove cloud, but
cannot file for ejectment because he is already in possession Art. 481. The procedure for the quieting of title or the
removal of a cloud therefrom shall be governed by such
Plaintiff not in possession: Remove cloud plus ejectment for rules of court as the Supreme Court shall promulgated.
the one in possession; action to recover possession –
incidental to action to quiet title
CHAPTER 4
Art. 476. Whenever there is a cloud on title to real property RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING
or any interest therein, by reason of any instrument, record,
claim, encumbrance or proceeding which is apparently valid Art. 482. If a building, wall, column, or any other
or effective but is in truth and in fact invalid, ineffective, construction is in danger of falling, the owner shall be
voidable, or unenforceable, and may be prejudicial to said obliged to demolish it or to execute the necessary work in
title, an action may be brought to remove such cloud or to order to prevent it from falling.
quiet the title. If the proprietor does not comply with this obligation, the
administrative authorities may order the demolition of the
An action may also be brought to prevent a cloud from structure at the expense of the owner, or take measures to
being cast upon title to real property or any interest therein. insure public safety. (389a)
Art. 477. The plaintiff must have legal or equitable title to, Art. 483. Whenever a large tree threatens to fall in such a
or interest in the real property which is the subject matter way as to cause damage to the land or tenement of another
of the action. He need not be in possession of said property. 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
Art. 478. There may also be an action to quiet title or not do so, it shall be done at his expense by order of the
remove a cloud therefrom when the contract, instrument or administrative authorities. (390a)
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 Title III. - CO-OWNERSHIP
benefits he may have received from the latter, or reimburse
him for expenses that may have redounded to the plaintiff's Art. 484. There is co-ownership whenever the ownership of
benefit. an undivided thing or right belongs to different persons.
NOTE: He who comes to court for equity must do equity. In default of contracts, or of special provisions, co-
Thus, there must be restoration of benefits. If the plaintiff ownership shall be governed by the provisions of this Title.
wins the case, he is obliged to restor to the defendants all (392)
benefits he received from the later. Yet, if he lost, there is no
obligation to restore. Q: What is co-ownership?
Art. 480. The principles of the general law on the quieting of A: It is the state where an undivided thing or right belongs to
title are hereby adopted insofar as they are not in conflict 2 or more persons.
with this Code.
It is the ownership of 2 or more persons over a thing or right
Q: In case of conflict, which law shall prevail? which had not been physically divided between or by and
among them.
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 It is the right of common dominion which two or more
applied. persons have in a spiritual part of a thing, not materially or
physically divided.
Q: Under what cases will the general law apply?
Q: What are the requisites of co-ownership?
A: Accoridng to Anglo-American Law:
A:
1. Laches;
2. Estoppel; 1. plurality of subjects (different owners)- at least 2 or
3. Res judicata more persons;

NOTES ON PROPERTY
2. unity of objects (material indivision)-thing has not of the property for a certain period of time (Article
yet been divided materially and co-owners are tied 194, paragraph 3);
up to one another; 5. Succession as in the case of heirs of undivided
3. recognition of the ideal shares of the co-owners- property before partition (especially intestate, the
proportionate share of the owners. heirs will own property until it is divided).
6. Chance or fortuitous event-e.g. discovery of a hidden
Q: What are the rules to govern co-ownership? treasure or by mixture.
A: Co-ownership may arise from different causes. For NOTE: Joint tenancy is not allowed in the Philippines, it
orderliness the law specifies the rules to govern in the impairs legitimes, because when a joint tenant dies, his share
following manner: does not go to his estate but to other surviving tenants; such
will be a betrayal of trust.
a. by contracts;
b. by special provision of law; and Co-ownership is not limited to corporeal things
c. by the provisions of the civil code.
It is explicit from the provision of Art. 484 that co-ownership
Dual Nature of Co-ownership can exist in transmissible rights.
1. Ownership over the ideal share – full ownership over the Thus, it was held that when the lessee died, his leasehold
ideal share although portion is unidentified rights descended upon his children who now own the rights
2. Co-owners exercise joint ownership over the whole – in co-ownership.
observance of mutual respect between co-owners
CO-OWNERSHIP v. JOINT TENANCY
The exercise of the right of legal redemption presupposes the
existence of co-ownership at the time the conveyance is Q: Distinguish between co-ownership and joint tenancy.
made by the co-owner and when it is demanded by the other
co-owner or co-owners; Property already partitioned A:
judicially or extrajudicially where portion belonging to co- Co-ownership Joint ownership
owners has been identified and localized, right of redemption (Tenancy in common) (Joint tenancy)
cannot be invoked. Each co-owner is owner of Each joint owner owns the
his own ideal share. whole thing.
GR: Co-owners cannot claim a definite portion. Each co-owner may dispose Joint owner must obtain the
of his undivided share consent of all the rest to
XPN: Transferees of an undivided portion of the land allowed WITHOUT the other co- dispose of his share.
a co-owner to occupy a definite portion and has not owners consent.
disturbed the same for a period too long to be ignored – Upon the death of a co- Upon the death of a joint
possessor is in a better condition or right (potior est conditio owner, his ideal share goes owner, his share goes to the
possidentis) to his heirs. other joint owners by
accretion.
Q: What are the different sources of co-ownership?
In case of a minor who is a The legal diability of one joint
co-owner, this does not owner benefits the others;
A:
benefit the others for the prescription will not run
purpose of prescription; it against them.
1. Contract-voluntary agreement of the parties; e.g.
continues to run against.
Art. 492(2) of the NCC with respect to the agreement Them.
not to divide a thing for a period not exceeding 10
years and Art. 658 of NCC with respect to easement
Q: Distinguish beteween co-ownership and partnership.
of party wall;
2. Law- e.g. commixtion, confusion, Article 147 of the
A:
Family Code;easement of party walls (Art. 668) or
Co-ownership Partnership (Ordinary)
absolute community of property between spouses
(Art. 88 or 90 of the Family Code); Can exist without a Requires the existence of
contract contracts
3. Occupancy- e.g. when 2 persons catch a wild animal
or fish in the open sea or gather forest products; Art. No legal/juridical personality With legal personality
438(2) of the NCC with respect to hidden treasure; distinct from the co-owners
4. Testamentary disposition or donation inter vivos- Created by contract, will, etc. Created by contract only
e.g. where the testator or donor prohibits partition Prurpose: Common/ Purpose: Profit
Collective enjoyment of the
NOTES ON PROPERTY
thing owned in common 1. Portions belonging to the co-ownership are equal unless
In general, agreement to No term limit set by law. the contrary is proved
exist for more than 10 years 2. Co-owners have different shares, participation in the
is void with respect to the Reason: it will eventually benefits and charges arising from the co-ownership shall
exces years be extinguished – by death be proportional to their respective INTERESTS.
of one of the partners or by
agreement of the partners Art. 485. The share of the co-owners, in the benefits as well
No mutual representation There is mutual as in the charges, shall be proportional to their respective
representation by parties interests. Any stipulation in a contract to the contrary shall
Not dissolved by the death, Dissolved by death or be void.
incapacity of a co-owner incapacity of a partner
A co-owner can dispose of A partner cannot be The portions belonging to the co-owners in the co-
his shgare without the substituted without the ownership shall be presumed equal, unless the contrary is
consent of the other co- consent of the others proved. (393a)
owners
Profits of a co-owner depend Profits may be stipulated Rights of each co-owner as to the thimg owned in common
on his proportinate share upon (e.g. profit-sharing
agreements) 1. To share in the benefits in proportion to his interest,
Co-owner does not represent Partner usually represnets provided the charges are borne in the same proportion.
the co-ownership the partnrships and binds the
partnership a. Contrary stipulation is void as the same is contrary to
the essence of co-ownership;
b. Presumption is what portions are equal unless
Q: Distinguish between co-ownership and conjugal
contrary is proved.
partnership of gains?
Q: State the presumption on the extent of a co-ownership.
A:
A: The law presumes that the portions belonging to co-
Co-ownership Conjugal Partnership of
owners are equal unless the contrary is proved.
Gains
Ordinary contractual Special partnership which
If they have different shares then their participation in the
relationship arises from marriage and
benefits and charges shall be propotional to their respective
agreed upon only before
interest.
marriage
More than 2 persons can Only 2 parties Q: What is the effect of accretion on the property under co-
establish co-ownership onwership?
Sex of parties is immaterial Sex is material; only a man
and woman A: If the property is increased through accretion, the co-
Share is proportionate to Generally, a share of 50/50 owners wuill share proportionately.
interest of parties unless a different percentage
has been agreed upon Q: State the execpttion to Art. 485.
Civil Code Family Code
A: GR: When contribnutions can be established. Their shares
Q: What are the means by which co-ownership is shal be in proportion to their contributions.
extinguished?
EXC: Art. 147 of the FC: Property regimes of unions wothout
A: mariages—A paretner who didi not actually contribute
financially in the acquisition of a property shall be deemd to
1. Consolidation or merger in one co-owner; have constributed jointly and shall receive 50/50 share, if she
2. Acquisitive prescription in favor of a third person or a co- took charge of the care and maintenance of the Family and
owner who repudiates the co-ownership; household.
3. Loss or destruction of property co-owned;
4. Termination of the periodagreed upon by the co-owners; NOTE: There is no co-ownership when rge house and lot
5. Expropriation; and belong to different owners.
6. Judicial or extra-judicial partition.
NOTE:

NOTES ON PROPERTY
2. To use the entire thing according to the purpose 2. The purpose for it was ordinarily accepted according
intended (may be altered by agreement, express or to its nature; and in default,
implied) provided that: 3. Presumption that the thing is intended for that use
for which it is ordinarily adapted according to its
a. It is without injuryor prejudice to the interest of the co- nature.
ownership; and
b. Without preventing the use of the other co-owners. Q. Is there such thing as perpetual co-ownership?
Q: Does each owner have the right to use the entire A. No. Any of the co-owners can demand partition at any
property? given time.
A: Yes. No co-owner ought to be compelled to stay in a co-ownership

indefinitely. He may insist the partition of the property
Q: What are the limitations to this right? anytime. Such action to demand for partition does not
prescribe. (Patricio v. Dario III, GR. No. 170829, 2006)
A: The thing owned in common should be used only:
A co-owner has a right to freely sell or dispose his undivided
1. Accoridng to the purpose intended (may be altered share of interest but has no right to sell a divided or definite
by agreement, express or implied) part of a real estate owned in common. (Lopez v. Illustre, 5
2. It is without injury or prejudice to the interest of the Phil. 568)
co-ownership; and
3. Without preventing the use of other co-owners. Co-ownership is terminated if there is judicial or extrajudicial
partition of the property. (Cruz v. CA, 456 SCRA 165)
Art. 486. Each co-owner may use the thing owned in
common, provided he does so in accordance with the In a property co-owned by the compulsory heirs, any act
purpose for which it is intended and in such a way as not to tantamount to partition (identifying their share and
injure the interest of the co-ownership or prevent the other constructed their respective houses) automatically
co-owners from using it according to their rights. The terminates the co-ownership. (Avila v. Sps. Arabat, 2006)
purpose of the co-ownership may be changed by
agreement, express or implied. (394a) Art. 487. Any one of the co-owners may bring an action in
ejectment. (n)
Q: What is the exception to Art. 486?
Q: What are the circumstances covered by ejectment?
A: If one co-owner alone occupies the entire house without
opposition from the other co-owners, and there is no lease A:
agreement, the other co-owners cannot demand the
payment of rent 1. Forcible entry;
2. Unlawful detainer;
NOTE: Co-owners can either exercise an equal right to live in 3. Accion publiciana;
the house or agree or lease it – if they fail to exercise any of 4. Accion reinvindicatoria;
these options, they must bear the consequences (it is unjust 5. Queting of title; and
to require a co-owner to pay rent after the co-owners by their 6. Replevin.
silence have allowed him to use the property). Accordingly, in
case the co-owners agreed to lease the property – co-owner 3. Each co-owner may bring an action in ejectment.
cannot retain it for his use without paying the proper rent.
When one co-owner brings an action, it is deemd instituted
On the other hand, property retained by some of the co- for the benefit of all, but if case does not proseper, the other
owners for the exploitation of an industry – other co-owners co-owners are not bound by the judgment unless they were
become co-participants in the accessions of the property and also served with summons, even as unwilling plaintiffs.
shares in the net profit. Reason: law prohibits a co-owner from being prejudiced as to
his interest; adverse judgment cannot be binding upon a co-
Q: State the rule to determine the purpose. owner who was not given a day in court.
A: These actions cannot be brought by one co-owner against

1. Purpose stipulated in the agreement, express or another co-owner since the latter has a right to possess; the
implied; in default, only effect of the action will be to obtain recognition of the
co-ownership.

NOTES ON PROPERTY
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.
EJECTMENT
GR: Any co-owner may institute action (in Ejectment) - Remedy of a co-owner who does not want to contribute
includes suit of forcible entry (detentacion) or unlawful
detainer (desahuico) and all kinds of actions for the recovery Art. 489. Repairs for preservation may be made at the will of
of possession (including accion publiciana and reinvidicatory one of the co-owners, but he must, if practicable, first notify
actions) his co-owners of the necessity for such repairs. Expenses to
improve or embellish the thing shall be decided upon by a
XPN: If action is for the benefit of the plaintiff alone, who majority as determined in Article 492. (n)
claims to be the sole owner and entitled to the possession
thereof, other co-owners (indispensable parties) must be Each co-owner has the right to demand contribution from
impleaded. other co-owners for any and all expenses he incurred for the
purpose of preserving the thing or right owned in common.
Action is available even against a co-owner who takes Accordingly, the opposition of other co-owners for making
exclusive possession and asserts exclusive ownership of the necessary repairs does not deprive the co-owner who made
property - the court cannot, in the action filed by a co-owner the advances from demanding contributions from the other
against another co-owner proceed with the actual co-owners as repairs for preservation may be made at the will
partitioning of the co-owned property (extra-judicial partition of only one of the co-owners.
is still necessary to effect physical division).
Q: What if the co-owner failed to comply with the notice
Art. 488. Each co-owner shall have a right to compel the requirement?
other co-owners to contribute to the expenses of
preservation of the thing or right owned in common and to A: Failure does not deprive the co-owner of his right to
the taxes. Any one of the latter may exempt himself from recover the proportionate shares of the other co-owners in
this obligation by renouncing so much of his undivided the expenses; however, the co-owner has the burden of
interest as may be equivalent to his share of the expenses proving the necessity of the repairs and the reasonableness
and taxes. No such waiver shall be made if it is prejudicial to of the expenses.
the co-ownership. (395a)
Q: Why are useful expenses not subject to reimbursement?
4. To compel other co=owners to contribute to expenses
for preservation of the thing or right in common and as A: It is an act of alteration.
to taxes.
Q: What is the rule in case of opposition to repairs?
NOTE:This article refers only to necessary expenses. Useful
expenses and expenses for luxury are not covered. A: If there is opposition and he still proceeded, he is taking
the risk of repairing without reimbursing. Yet, if no repairs are
Acts of preservation may be made at the will of one of the co- done due to the opposition and the property is ruined or
owners, but he must, if practicable, first notify the others if diminished value, oppositors could be liable for damages.
the necessity of such repairs.
Renunciation
GR: A co-owner has the option not to contribute by
renouncing his undivided interest equal to the amount of An option that belongs to a co-owner who may be compelled
contribution. to contribute to the expenses incurred for the purpose of
preserving the property owned in common (Special form of
XPN: If the waiver or renunciation is prejudicial to the co- payment – dation in payment).
ownership.
Q: May a co-owner be compelled to renounce?
Renuniciation is in effect a dacion en pago (dation in
payment) since there is a change of the object of the A: A Co-owner cannot be compelled to renounce – if co-
obligation (sum of money to interest in the co-ownership). owner refuses to pay his share of expenses, the remedy is to
Thus, the consent of the other co-owners is necessary. file an action for collection of sum of money.

NOTES ON PROPERTY
Q: Is the consent of a co-owner necessary in case of the exception of the owner of the ground floor; the stairs
renunciation? from the first to the second story shall be preserved at the
expense of all, except the owner of the ground floor and the
A: Consent of co-owner who made advances is not required owner of the first story; and so on successively. (396)
when a co-owner opts to renounce.
Art. 491. None of the co-owners shall, without the consent
Q: State the limitation on the exercise of the option of of the others, make alterations in the thing owned in
renunciation. common, even though benefits for all would result
therefrom. However, if the withholding of the consent by
A: Art488 prohibits the exercise of the option of renunciation one or more of the co-owners is clearly prejudicial to the
if it is prejudicial to the interest of the co-ownership. common interest, the courts may afford adequate relief.
(397a)
Taxes
5. To oppose to any act of alteration.
GR: Not a necessary expense
XPN: Necessary expense under Art488, NCC. Art490 applies to a house consisting of several stories and
different stories belong to different owners. It is no applicable
Expenses to improve or relinquish the thing shall be decided to condominium project which is governed by RA 4276.
upon by the majority co-owner representing the controlling
interest in the object of the co-ownership. Rules governing necessary expenses
A co-owner who does not want to contribute may EXEMPT 1. Manner of contribution specified in the title of
himself by RENOUNCING SO MUCH of his undivided interest ownership;
as may be the equivalent to his share of the expenses for 2. Agreement of parties; and
preservation and taxes. 3. In the absence of agreement – Art490:
Q: What should be the form of necessary? a. Main and party walls, roof and other things used in
common shall be preserved at the expense of all the
A: It must be express renunciation. owners in proportion to the value of the story
belonging to each;
Improvements b. Floor of entrance, front door, common yard and
sanitary works common to all, shall be maintained at
Q: What are improvements? the expense of all owners pro rata;
c. Each owner shall bear the cost of maintaining the
A: They are valuable additions or betterment to enhance the floor of his story; and
value or the convenience of the property. They are designed d. Stairs from the entrance to the first story – all
for the comfort of the occupants/ owners pro rata (except owner of ground floor;
reason: no need for him to use the stairs)
To improve means to add something new and good to the Stairs from the first to second story – expense of all
thing which enhances its value. except the owner of ground floor and first floor.
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 Condominium Act
necessary expenses and there exists no agreement on the
subject, the following rules shall be observed: Q: What is a condominium?
(1) The main and party walls, the roof and the other things A: It is an interest in real property consisting of a separate
used in common, shall be preserved at the expense of all the interest in a unit in a residential, industrial or commercial
owners in proportion to the value of the story belonging to building and an undivided interest in common directly or
each; indirectly, in the land on which it is located and in other
(2) Each owner shall bear the cost of maintaining the floor of common areas of the building.
his story; the floor of the entrance, front door, common
yard and sanitary works common to all, shall be maintained Q: What are common areas?
at the expense of all the owners pro rata;
(3) The stairs from the entrance to the first story shall be A: They refer to the entire project excepting all units
maintained at the expense of all the owners pro rata, with separately granted or held or reserved.

NOTES ON PROPERTY
5. For reconstruction of any portion or portions of any
Q: What is a unit? damage to or destruction of the project.
A: It is part of condominium project intended for any type of Notice of assessment of condominium is to be registered with
independent use or ownership, including one or more rooms the Registry of Deeds of the city or province where such
or spaces located in one or more floors in a building or condominium is located.
buildings and such accessories as may be appended thereto.
Lien is superior to all other liens registered subsequent to the
Nature of ownership in condominium projects registration of notice of assessment EXCEPT real property tax
lien.
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 Art. 492. For the administration and better enjoyment of the
association (pays association dues) thing owned in common, the resolutions of the majority of
the co-owners shall be binding.
a. Land and common areas are held by owners of
the separate units as co-owners – co-owners There shall be no majority unless the resolution is approved
with respect to the undivided interest in the by the co-owners who represent the controlling interest in
land and common areas the object of the co-ownership.
b. Land and other common areas are held by the
condominium corporation – owners of the Should there be no majority, or should the resolution of the
individual units are automatically considered majority be seriously prejudicial to those interested in the
members or shareholders of the corporation property owned in common, the court, at the instance of an
(reason: undivided interest in the common areas interested party, shall order such measures as it may deem
or the shareholding in the common areas is proper, including the appointment of an administrator.
inseparable from the unit to which it is only an
appurtenant) Whenever a part of the thing belongs exclusively to one of
the co-owners, and the remainder is owned in common, the
Rules on expenses on common areas preceding provision shall apply only to the part owned in
common. (398)
Owner of project is required by law, prior to conveyance of
any condominium to register a declaration of restrictions Acts requiring Unanimous Consent
relating to such project (restrictions is considered a lien upon
each condominium in the project and shall inure to and bind Q: What are the acts requiring unanimous consent?
all condominium owners in the project).
A:
Restrictions may be:
1. Encumbrance as co-owners will be prejudiced; e.g.
1. For maintenance of insurance policies insuring mortgage and foreclosure;
condominium owners against loss by fire, casualty, 2. Disposition as no one may dispose a thing which he does
liability, workmen’s compensation and other not own; and
insurable risks and for bonding of the members of 3. Acts of alteration.
any management body;
2. Provisions for maintenance, utility, gardening and Q: Distinguish between acts of alteration and acts of
other services benefitting the common areas, for the administration?
employment of personnel necessary for the
operation of the building and legal, accounting and A:
other professional and technical services;
3. For purchase of materials, supplies and the like Acts of Alteration Acts of Administration
needed by the common areas;
4. For payment of taxes and special assessments which Act by virtue of which a co- Improvement or
would be a lien upon the entire project or common owner, in opposition to the embellishment of the thing
areas and for the discharge of any encumbrance
express agreement, if there is owned in common for the
levied against the entire project or the common
areas; and any, or in default thereof, to purpose of better enjoyment
the tacit agreement of all the (IME):

NOTES ON PROPERTY
co-owners and violating their - Improvement 3. Majority authorizes lease, loans, or other contracts
will, changes the thing from - Management without security, exposing the things to serious danger to
that state in which the others - Enjoyment the prejudice of the other co-owners; and
4. Majority refuses to dismiss an administrator who is guilty
believe it should remain or
It refers to the enjoyment, of fraud or negligence in his management or he does not
withdraws it from the use to exploitation, and alteration have the respectability, aptitude and solvency required
which they wish it to be of the thing which do not of persons holding such position.
intended; affect its substance, form, or
purpose.; Alteration is not limited to physical or material changes but
Consent, express or tacit, Majority consent of the co- includes any act of ownership.
previous to the act or after owners who represents the
Q: What is the reason foe requiring the consent of other co-
its commission, of all co- controlling interest in the
owners?
owner required even though object of the co-ownership
alteration will benefit all co- required; A: Alteration is an act of ownership and not mere act of
owner; administration.
Acts made without the Q: What is the liability of a co-owner for alteration made
consent of all co-owners are Reason for majority consent: without the majority consent?
illegal and invalid; No alienation
A: The co-owner who makes the alteration without the
Remedy: express or implied consent of all co-owners shall:
1. Undo what has been 1. Lose what he has spent;

done at the expense of 2. Be obliged to demolish the improvements done;
the erring co-owner and
(Art1168, NCC); 3. Pay for losses and damages the community
2. Erring co-owner is liable property or other co-owners may have suffered.
for any loss or damage
which the co-ownership Q: What if there is disagreement or conflict on matters of
may have suffered administration and better enjoyment?
More permanent result – Transitory in character.
refers to the substance or A: The resolution of the co-owners representing the
controlling interest shall be binding upon all co-owners.
form of the thing.
Q: What if there is no majority?
Relates to the substance or Do not affect the substance
essence of the thing itself; or form of the thing; A: If no majority, the court shall order measures as it may
deem proper to solve the controversy.
Must be exercised by the co- Can be exercised by the co-
owners themselves. owners through others like Illustration of acts of administration
an administrator.
1. Leasing a parcel of land for not more than 1 year and
need not register (if registred it is an act of ownership);
Q: What is the test whether the nature of the thing requires 2. Borrowing money for preservation of property;
modifications for enjoyment? 3. Paying taxes to government;
4. paying workers; and
A: If there is no need for modification, it is an act of 5. Filing a representative suit for the co-owners.
alteration; where the nature of the thing requires changes in
its exploitation, it is an act of administration
Art. 493. Each co-owner shall have the full ownership of his
Acts of Majority Prejudicial to the Co-ownership part and of the fruits and benefits pertaining thereto, and
he may therefore alienate, assign or mortgage it, and even
1. Resolution calls for substantial change or alteration of substitute another person in its enjoyment, except when
the common property or of the use to which it has been personal rights are involved. But the effect of the alienation
dedicated by agreement or by its nature; or the mortgage, with respect to the co-owners, shall be
2. Resolution goes beyond the limit of mere administration;

NOTES ON PROPERTY
limited to the portion which may be alloted to him in the property without the consent of the other prior to the
division upon the termination of the co-ownership. (399) termination of cohabitation.
6. To protect against acts of majority which are prejudicial Q: What is the effect of sale of conjugal property without
to the minority the consent of the other spouse?
A co-owner has absolute ownership over his undivided share A: It shall be void. The Conjugal Partnership of Gains under
in the common property. Thus, he can alienate his share to the FC is governed suppletorily only by the rules on
third persons even without the consent of other co-owners; partnership.
may validly lease his undivided interest to a third party
independently of other co-owners Q: What is the effect of sale of community property without
the consent of the other spouse?
Ideal share of co-owner in common not in whole property A: It is void. The absolute community is a form of co-
ownership but Art. 493 does not apply; prior to the
A co-owner has full ownership of his share, fruits & benefits; liquidation of the absolute community, the interest of each
thus, he May alienate, assign, or mortgage, substitute spouse is inchoate, a mere expectancy which constitute
another person in enjoyment of his share, except when neither legal nor equitable estate and does not ripen into title
personal rights are involved (undivided interest). until it appears that there are assets in the community as a
result of the liquidation and settlement.
Mortgage of a common property
Legal Redemption
A co- owner does not lose his part ownership of a co-owned
property where his share is mortgaged by another co-owner Legal Redemption – may be exercised by two or more co-
without former’s knowledge and consent: owners in proportion to the share they respectively have. The
reason for allowing redemption is to minimize co-ownership
1. Share can be attached even if it has not been by reducing the number of participants until the community
concretely determined; is done away with.
2. Not allowed to sell a determinate part because his
right is only a quota or an ideal portion within any Q: What are the requisites for legal redemption?
physical adjudication; and
3. A co-owner of a thing may exercise the RIGHT OF A:
REDEMPTION in case the shares of all the other co-
rd
owners or any of them are sold to a 3 person; if 1. There is co-ownership;
price of alienation is grossly excessive, the 2. One of the co-owners sold his right to a stranger (not
redemption shall pay only a reasonable one a co-owner);
3. Sale is before the partition of the co-owned
Q: What is the effect of alienation or mortgage of undivided property;
share? 4. Right of redemption must be exercised within
30days from knowledge; and
A: The transferee steps into the shoes of the transferor as co- 5. Vendee must be reimbursed for the price of the sale
owner.
Right is granted not only to the co-owner but also to all those
GR: Alienation of entire co-owned property – sale will affect who subsequently acquires their respective shares while the
the portion owned by the co-owner only (reason: nemo dat community subsists. A co-owner has the right of redemption
quod non habet – no one can give what he does not have). not a right of pre-emption to purchase the shares of his co-
Accordingly, the remedy is an action for the partition of the owners.
property under Rule 69 of the Revised Rules of Court.
XPNs: NOTE: Written notice is not required when there is actual

notice
1. Buyer in good faith – a person dealing registered land is
not required to go behind the register to determine the PARTITION
condition of the property; and
2. Art147, FC – common law spouses are prohibited from Art. 494. No co-owner shall be obliged to remain in the co-
encumbering or disposing of their share in the co-owned ownership. Each co-owner may demand at any time the

NOTES ON PROPERTY
partition of the thing owned in common, insofar as his share 2. When the defendants, alleged co-owners, executed
is concerned. a deed of partition and on the strength therof
obtained the cancellation of title in the name of their
Nevertheless, an agreement to keep the thing undivided for predecesor and the issuance of new titles.
a certain period of time, not exceeding ten years, shall be
valid. This term may be extended by a new agreement. Q: What is partition?
A donor or testator may prohibit partition for a period A: It is the segregation or division of a property in common to
which shall not exceed twenty years. those to whom it belongs in parts.
Neither shall there be any partition when it is prohibited by It is the right to demand at anytime the partition or
law. segregation of his share in the thing owned in common.
No prescription shall run in favor of a co-owner or co-heir GR: A co-owner cannot acquire exclusive ownership over a
against his co-owners or co-heirs so long as he expressly or common property thru prescription as a co-owner stands as a
impliedly recognizes the co-ownership. (400a) trustee for other co-owners.
7. To ask partition Except: A co-owner can acquire by prescription if he had

repudiated the co-ownership and lay complete ownership
No co-owner shall be obliged to remain in the co-ownership over the property adverse to the other co-owner/s with full
as the law discourages long and perpetual co-ownership, knowledge of the latter.
which causes conflicts in management and possession among
co-owners. Co-owners can stipulate that they will not divide a common
property but will just keep on dividing the income or fruits =
GR: A co-owner has the right to ask for partition at anytime. renunciation of their right to seek partition;
XPN: Temporary renunciation is allowed, not more than 10 years;

extension can be made provided it does not exceed 10 years;
1. When there is a stipulation against it (not more than 10 and
years);
2. When the condition of division is imposes by the If indefinite period= invalid.
transferor (donor/testator) (but not more than 20 years);
3. When legal nature of the community prevents partition Q: What are the principal issues in an action for partition?
(party wall);
4. When the issue of ownership had not been definitely A:
resolved and it is premature to effect partition; 1. Whether plaintiff is a co-owner of the property
5. When the partition is generally prohibited by law; and sought to be partitioned
6. When the partition would render the thing unserviceable 2. How property is to be divided between the plaintiff
or the thing is essentially indivisible. and defendant
Action to request partition will not prescribe as long as the Legal Effects of Partition
co-ownership exists.
1. Co-ownership is terminated; Co-owners are the absolute
GR: No prescription shall run in favor of a co-owner or co-heir and exclusive owners of the share allotted to him –
against his co-owners or co-heirs so long as he expressly or deemed in exclusive possession of the portion allotted
impliedly recognizes the co-ownership. Accoridngly, the even during the entire period that the co-ownership
posession of co-owner is not adverse to the other co-owners. lasted
2. Cannot prejudice the rights of third persons who shall
XPN: If the co-owner repudiates co-ownership. In such case, retain the rights of mortgage, servitude, or any other real
prescription begins to run from the time of repudiation. rights belonging to them before the division was made
3. Personal rights pertaining to third persons against
Q: Cite examples of acts of repudiation. ownership shall also remain in force
4. Mutual accounting shall be rendered by the co-owners
A: with regard to:
a. Benefits and expenses and each co-owner shall pay for
1. Filing of an action to quiet title or recovery of damages cause by reason of his negligence or fraud
ownership;

NOTES ON PROPERTY
b. Reimburse each other as to the income and fruits Co-owner executed a deed of partition and subsequently
received and for useful and necessary expenses made obtained the cancellation of the title and issuance of a
c. Co-owner liable for the defects of title and quality of the new one in his name [2] action to quiet title to property
portion assigned to each of the co-owners [3] action for recovery of ownership)
2. Positive acts of repudiation have been made known to
Q: What are the grounds of extinguishing co-ownership? the other co-owners – prescription runs only against co-
owners when such unequivocal notice has been given
A: 3. Evidence is clear and convincing
1. Partition; Art. 495. Notwithstanding the provisions of the preceding

2. Prescription as means of acquiring ownership in article, the co-owners cannot demand a physical division of
rd
favor of 3 person; the thing owned in common, when to do so would render it
3. Merger/ consolidation of ownership to 1 person as unserviceable for the use for which it is intended. But the
when a co-owner acquires another co-owners share co-ownership may be terminated in accordance with Article
through purchase or legal redemption; 498. (401a)
4. Destruction of property or total loss of the thing
owned in common-co-ownership is a state of fact Q: When is physical division not allowed?
which exists so long as the property remains
physically undivided; A: Co-owners cannot demand a physical division of the thing
5. Expropriation by competent authority. owned in common:
a. when to do so would render it unserviceable for the
Q: Is redemption a mode of terminating co-ownership? use it is intended
b. If partition will only impair its use, co-owner can
A: Redemption is not a mode of terminating co-ownership. A refuse?
co-heir or co-owner who redeems the whole property
benefits the co-owners does not become the owner therof. NOTE: They can continue to pursue partition because it
He is considered as a trustee of the property and will be pertains only to the use because it not render it
entitled to collect reimbursement; redemption is a necessary unserviceable.
expense under Art488).
Impairment is a necessary consequence of partition and is not
Heirs (co-owners) allowing the one year redemption period to a ground to refuse partition
expire without redeeming the property and even permitted
the consolidation of ownership and the issuance of new title Art. 496. Partition may be made by agreement between the
in favor of the bank, through their omission, the heirs allowed parties or by judicial proceedings. Partition shall be
the extinction of their co-ownership. governed by the Rules of Court insofar as they are
consistent with this Code. (402)
NOTE: Construction of a house on a co-owned property =
implied partition by an act that would identify the share of Partition may be in writing, verbal/oral, because there is
ownership really no conveyance of property; so frauds does not apply.
Q: Will prescription lie? Art. 497. The creditors or assignees of the co-owners may
take part in the division of the thing owned in common and
A: object to its being effected without their concurrence. But
they cannot impugn any partition already executed, unless
GR: prescription does not lie (reason: co-ownership is a form there has been fraud, or in case it was made
of trust and every co-owner is a trustee for the others – notwithstanding a formal opposition presented to prevent
relationship of co-owners is fiduciary in character and it, without prejudice to the right of the debtor or assignor to
attribute; no prescription so long as co-owner expressly or maintain its validity. (403)
impliedly recognized co-ownership).
1. creditors are allowed because they take part in the
XPN: When co-ownership repudiated. partition because they own part of the interests of the
co-owner who made the assignment or alienation
Q: What are the requisites for repudiation? 2. if assignor has fully assigned all his interest in the
community property, he has no more right to intervene
A: in the petition; the assignee will have the right because
1. Co-owner has performed unequivocal acts of repudiation he is the new co-owner
amounting to an ouster of the other co-owners (ex. [1]

NOTES ON PROPERTY
Q: Who are CREDITORS? them before the division was made. Personal rights
pertaining to third persons against the co-ownership shall
A: also remain in force, notwithstanding the partition. (405)
rd
(1) Ordinary creditor- loan is not secured 1. 3 person who have rights attached to the
(2) Preferred creditor – in case of liquidation or sale of community property before its partition shall retain
property, they will be paid first such rights even after the partition of the property
2. Protection applies to real and personal rights
Q: What are the requisites to enable the creditors or
assignees assail partition already executed? Art. 500. Upon partition, there shall be a mutual accounting
for benefits received and reimbursements for expenses
A: Creditors or assignees cannot assail partition already made. Likewise, each co-owner shall pay for damages
executed unless: caused by reason of his negligence or fraud. (n)
(1) there has been fraud perpetrated Art. 501. Every co-owner shall, after partition, be liable for
(2) it was made despite formal opposition thereto defects of title and quality of the portion assigned to each of
the other co-owners. (n)
NOTE: The law does not require co-owners to notify
creditors/ assignees about the partition, prudence dictate After partition, if there are still benefits and expenses
that they be notified. incurred, which had not been settled in the partition
agreement; co-owners shall remain liable therefore and shall
Partition shall not prejudice third persons who shall retain the have mutual obligations:
rights of:
1. account for benefits received
a. mortgage; 2. reimburse expenses incurred by others which are legally
b. servitude; and reimbursable
c. any other real rights belonging to them before 3. indemnify other co-owners for the damages suffered by
partition. them due to the negligence or fraud of the indemnifying
co-owner
8. To exercise legal redemption 4. to warrant defects of title and quality of the portions
assigned to each of them
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 Title IV. - SOME SPECIAL PROPERTIES
Art. 498. Whenever the thing is essentially indivisible and CHAPTER I

the co-owners cannot agree that it be allotted to one of WATERS
them who shall indemnify the others, it shall be sold and its
proceeds distributed. (404) SECTION 1. - Ownership of Waters
Q: It is said that community property is essentially Art. 502. The following are of public dominion:
indivisible, therefore, what are the remedies of co-owners?
(1) Rivers and their natural beds;
A: (2) Continuous or intermittent waters of springs and brooks
1. Agree on the allotment of entire property to one of them running in their natural beds and the beds themselves;
who in turn will indemnify the others for their respective (3) Waters rising continuously or intermittently on lands of
interests public dominion;
2. Property shall be sold and proceeds distributed to co- (4) Lakes and lagoons formed by Nature on public lands, and
owners their beds;
(5) Rain waters running through ravines or sand beds, which
NOTE: What is prohibited in art 495 and 498 is only PHYSICAL are also of public dominion;
DIVISION, the PROCEEDS can BE DIVIDED. (6) Subterranean waters on public lands;
(7) Waters found within the zone of operation of public
Art. 499. The partition of a thing owned in common shall not works, even if constructed by a contractor;
prejudice third persons, who shall retain the rights of (8) Waters rising continuously or intermittently on lands
mortgage, servitude or any other real rights belonging to belonging to private persons, to the State, to a province, or

NOTES ON PROPERTY
to a city or a municipality from the moment they leave such Art. 508. The private ownership of the beds of rain waters
lands; does not give a right to make works or constructions which
(9) The waste waters of fountains, sewers and public may change their course to the damage of third persons, or
establishments. (407) whose destruction, by the force of floods, may cause such
damage. (413)
Art. 503. The following are of private ownership:
Art. 509. No one may enter private property to search
(1) Continuous or intermittent waters rising on lands of waters or make use of them without permission from the
private ownership, while running through the same; owners, except as provided by the Mining Law. (414a)
(2) Lakes and lagoons, and their beds, formed by Nature on
such lands; Art. 510. The ownership which the proprietor of a piece of
(3) Subterranean waters found on the same; land has over the waters rising thereon does not prejudice
(4) Rain waters falling on said lands, as long as they remain the rights which the owners of lower estates may have
within the boundaries; legally acquired to the use thereof. (415)
(5) The beds of flowing waters, continuous or intermittent,
formed by rain water, and those of brooks, crossing lands Art. 511. Every owner of a piece of land has the right to
which are not of public dominion. construct within his property, reservoirs for rain waters,
provided he causes no damage to the public or to third
In every drain or aqueduct, the water, bed, banks and persons. (416)
floodgates shall be considered as an integral part of the land
of building for which the waters are intended. The owners SECTION 4. - Subterranean Waters
of lands, through which or along the boundaries of which
the aqueduct passes, cannot claim ownership over it, or any Art. 512. Only the owner of a piece of land, or another
right to the use of its bed or banks, unless the claim is based person with his permission, may make explorations thereon
on titles of ownership specifying the right or ownership for subterranean waters, except as provided by the Mining
claimed. (408) Law.
Explorations for subterranean waters on lands of public
SECTION 2. - The Use of Public Waters dominion may be made only with the permission of the
administrative authorities. (417a)
Art. 504. The use of public waters is acquired:
(1) By administrative concession; Art. 513. Waters artificially brought forth in accordance with
(2) By prescription for ten years. the Special Law of Waters of August 3, 1866, belong to the
person who brought them up. (418)
The extent of the rights and obligations of the use shall be
that established, in the first case, by the terms of the Art. 514. When the owner of waters artificially brought to
concession, and, in the second case, by the manner and the surface abandons them to their natural course, they
form in which the waters have been used. (409a) shall become of public dominion. (419)
NOTE: Art503 & 504 Repealed by PD1067 SECTION 5. - General Provisions
Art. 505. Every concession for the use of waters is Art. 515. The owner of a piece of land on which there are
understood to be without prejudice to third persons. (410) defensive works to check waters, or on which, due to a
change of their course, it may be necessary to reconstruct
Art. 506. The right to make use of public waters is such works, shall be obliged, at his election, either to make
extinguished by the lapse of the concession and by non-user the necessary repairs or construction himself, or to permit
for five years. (411a) them to be done, without damage to him, by the owners of
the lands which suffer or are clearly exposed to suffer
SECTION 3. - The Use of Waters of Private Ownership injury. (420)
Art. 507. The owner of a piece of land on which a spring or Art. 516. The provisions of the preceding article are
brook rises, be it continuous or intermittent, may use its applicable to the case in which it may be necessary to clear
waters while they run through the same, but after the a piece of land of matter, whose accumulation or fall may
waters leave the land they shall become public, and their obstruct the course of the waters, to the damage or peril of
use shall be governed by the Special Law of Waters of third persons. (421)
August 3, 1866, and by the Irrigation Law. (412a)
Art. 517. All the owners who participate in the benefits
arising from the works referred to in the two preceding

NOTES ON PROPERTY
articles, shall be obliged to contribute to the expenses of To establish the basic framework relating to the
construction in proportion to their respective interests. appropriation, control and conservation of water resources to
Those who by their fault may have caused the damage shall achieve the optimum development and rational utilization of
be liable for the expenses. (422) these resources;
To define the extent of the rights and obligations of water
Art. 518. All matters not expressly determined by the users and owners including the protection and regulation of
provisions of this Chapter shall be governed by the special such rights;
Law of Waters of August 3, 1866, and by the Irrigation Law.
(425a) To adopt a basic law governing the ownership, appropriation,
utilization, exploitation, development, conservation and
Q: What are the governing Laws on Waters? protection of water resources and rights to land related
thereto; and
A:
1. PD1067 – Water Code of the Philippines [1976] To identify the administrative agencies which will enforce the
2. New Civil Code provisions not repealed by PD1067 Water Code
3. Spanish Law on Waters of 1866 provisions not repealed
by PD1067 OWNERSHIP OF WATERS
Q: Who owns water? The following belongs to the State:
A: The State. 1. Rivers and their natural beds;

2. Continuous or intermittent waters of springs and brooks
Q: What is the constitutional basis of this? running in their natural beds and the beds themselves;
3. Natural lakes and lagoons;
A: Sec2, Art. XII of the 1987 Constitution provides: “All lands 4. All other categories of surface waters such as water
of the public domain, waters, xxxx are owned by the State.” flowing over lands, water from rainfall whether natural,
or artificial, and water from agriculture runoff, seepage
Q: What are the underlying principles under the Water Code and drainage;
of the Philippines? 5. Atmospheric water;
6. Subterranean or ground waters; and,
All waters belong to the State. Correspondingly, the same 7. Seawater.
cannot be the subject to acquisitive prescription.
Nonetheless, the State may allow the use or development of Note: The owner of the land where the water is found may
waters by administrative concession. use the same for domestic purposes without securing a
permit, provided that such use shall be registered, when
The utilization, exploitation, development, conservation and required by the Council. Any person who captures or collects
protection of water resources shall be subject to the control water by means of cisterns, tanks, or pools shall have
and regulation of the government through the National exclusive control over such water and the right to dispose of
Water Resources Council, hereinafter referred to as the the same.
Council.
Water legally appropriated shall be subject to the control of
Preference in the use and development of waters shall the appropriator from the moment it reaches the
consider current usages and be responsive to the changing appropriator's canal or aqueduct leading to the place where
needs of the country. the water will be used or stored and, thereafter, so long as it
is being beneficially used for the purposes for which it was
Q: What do you mean by waters? appropriated.
A: It refers to water above and under the grounds, in the APPROPRIATION OF WATERS
atmosphere, and of the sea within the territorial jurisdiction
of the Philippines. Q: What is appropriation?
Pertinent Provisions 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
DECLARATION OF OBJECTIVES AND PRINCIPLES manner and for any purpose allowed by law.
The objectives of this Code are: Q: What are the purposes by which water may be
appropriated?

NOTES ON PROPERTY
Article 19. Water rights may be leaded or transferred in whole or in part to

A:
another person with prior approval of the Council, after due notice and
1. Domestic hearing.
2. Municipal
3. Irrigation Q: What is the rule as to the limitation for the use and
4. Power generation appropriation of water?
5. Fisheries
6. Livestock raising A: The measure and limit of appropriation of water shall be
7. Industrial beneficial use.
8. Recreational, and
9. Other purposes Q: What is beneficial use?
GR: The State, for reasons of public policy, may declare A: Beneficial use of water is the utilization of water in the
waters not previously appropriated, in whole or in part, right amount during the period that the water is needed for
exempt from appropriation for any or all purposes and, producing the benefits for which the water is appropriated.
thereupon, such waters may not be appropriated for those
purposes. Q: Who will prescribe the standards for “beneficial use”?
Waters appropriated for a particular purpose may be applied A:

for another purpose only upon prior approval of the Council
and on condition that the new use does not unduly prejudice GR: Standards of beneficial use shall be prescribed by the
the rights of other permittees, or require an increase in the council for the appropriator of water for different purposes
volume of water. and conditions, and the use of waters which are appropriated
shall be measured and controlled in accordance therewith.
XPN: No person, including government instrumentalities or
government-owned or controlled corporations, shall XPN: domestic use, every appropriator of water shall
appropriate water without a water right, which shall be maintain water control and measuring devices, and keep
evidenced by a document known as a water permit. records of water withdrawal. When required by the Council,
all appropriators of water shall furnish information on water
Water right is the privilege granted by the government to use.
appropriate and use water.
Article 22. Between two or more appropriators of water from the same
sources of supply, priority in time of appropriation shall give the better
Subject to the provisions of this Code concerning the control,
right, except that in times of emergency the use of water for domestic and
protection, conservation, and regulation of the appropriation municipal purposes shall have a better right over all other uses; Provided,
and use of waters, any person may appropriate or use natural the where water shortage is recurrent and the appropriator for municipal
bodies of water without securing a water permit for any of 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
the following:
prescribed by the Council.
(a) Appropriation of water by means of handcarried Q: How is water right exercised?

receptacles; and
(b) Bathing or washing, watering or dipping of domestic or A: A water right shall be exercised in such a manner that the
farm animals, and navigation of watercrafts or transportation rights of third persons or of other appropriators are not
of logs and other objects by flotation. prejudiced thereby.
Q: Who may apply for water permits? Article 25. A holder of water permit may demand the establishment of
easements necessary for the construction and maintenance of the works
A: Only citizens of the Philippines, of legal age, as well as and facilities needed for the beneficial use of the waters to be appropriated
subject to the requirements of just compensation and to the following
juridical persons, who are duly qualified by law to exploit and
conditions:
develop water resources, may apply for water permits.
(a) That he is the owner, lessee, mortgagee or one having real right over
Pertinent provisions of the Water Code 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.
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 Easements relating to the appropriation and use of waters may be modified
public for any protests. by agreement of the contracting parties provided the same is not contrary
to law or prejudicial to third persons.
Article 17. The right to the use of water is deemed acquired as of the date
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.
NOTES ON PROPERTY
Article 28. Water permits shall continue to be valid as long as water is GR: Authority for the construction of dams, bridges and other
beneficially used; however, it maybe suspended on the grounds of non-
structures across of which may interfere with the flow of
compliance with approved plans and specifications or schedules of water
distribution; use of water for a purpose other than that for which it was navigable or floatable waterways shall first be secured from
granted; non-payment of water charges; wastage; failure to keep records of the Department of Public Works, Transportation and
water diversion, when required; and violation of any term or condition of Communications.
any permit or rules and regulations promulgated by the Council.
Temporary permits may be issued for the appropriation and use of water XPN: in cases of emergency to save life or property, the
for short periods under special circumstances. construction or repair of the following works shall be
undertaken only after the plans and specifications therefor,
CHAPTER IV as may be required by the Council, are approved by the
UTILIZATION OF WATERS proper government agency; dams for the diversion or storage
of water; structures for the use of water power, installations
Article 32. The utilization of subterranean or ground water shall be
for the utilization of subterranean or ground water and other
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 structures for utilization of water resources.
right in the other.
For this purpose the Council shall promulgate rules and regulations Q: How should water drainage be constructed from a higher
and declare the existence of control areas for the coordinated
to a lower land?
development, protection, and utilization of subterranean or ground water
and surface waters.
Control area is an area of land where subterranean or ground water A: When artificial means are employed to drain water from
and surface water are so interrelated that withdrawal and use in one higher to lower land, the owner of the higher land shall select
similarly affects the other. The boundary of a control area may be altered
the routes and methods of drainage that will cause the
from time to time, as circumstances warrant.
minimum damage to the lower lands, subject to the
Article 33. Water contained in open canals, aqueducts or reservoirs of requirements of just compensation.
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 Article 47. When the use, conveyance or storage of waters results in
without checking the stream or damaging the canal, aqueduct or reservoir; damage to another, the person responsible for the damage shall pay
Provided, That this right may be restricted by the owner should it result in compensation.
loss or injury to him.
Article 48. When a water resources project interferes with the access of
Article 34. A water permittee or appropriator may use any watercourse to landowner to a portion of his property or with the conveyance of irrigation
convey water to another point in the watercourse for the purpose stated in or drainage water, the person or agency constructing the project shall bear
a permit and such water may be diverted or recaptured at that point by the cost of construction and maintenance of the bridges, flumes and other
said permittee in the same amount less allowance for normal losses in structures necessary for maintaining access, irrigation, or drainage, in
transit. addition to paying compensation for land and incidental damages.
Article 35. Works for the storage, diversion, distribution and utilization of
water resources shall contain adequate provision for the prevention and CHAPTER V
control of diseases that may be induced or spread by such works when CONTROL OF WATERS
required by the Council.
Article 53. To promote the best interest and the coordinated protection of
Q: State the rule as to the reuse of water waste. 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.
A: When the reuse of waste water is feasible, it shall be
limited as much as possible, to such uses other than direct Article 54. In declared flood control areas, rules and regulations may be
human consumption. No person or agency shall distribute promulgated to prohibit or control activities that may damage or cause
deterioration or lakes and dikes, obstruct the flow of water, change the
such water for public consumption until it is demonstrated
natural flow of the river, increase flood losses or aggravate flood problems.
that such consumption will not adversely affect the health
and safety of the public. Article 55. The government may construct necessary flood control
structures in declared flood control areas, and for this purpose it shall have
Article 37. In the construction and operation of hydraulic works, due a legal easement as wide as may be needed along and adjacent to the river
consideration shall be given to the preservation of scenic places and bank and outside of the bed or channel of the river.
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 Article 56. River beds, sand bars and tidal flats may not be cultivated except
be undertaken without showing that the distribution or removal is upon prior permission from the Secretary of the Department of Public
necessary and unaviodable. 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.
Q: Who has the authority to construct dams, bridges or
other structures across of which may interfere with the flow Article 57. Any person may erect levees or revetments to protect his
of navigable or floatable waterways? 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.
A:

NOTES ON PROPERTY
Article 58. When a river or stream suddenly changes its course to traverse occupants thereof within the protected area which may damage or cause
private lands, the owners of the affected lands may not compel the the deterioration of the surface water or ground water or interfere with the
government to restore the river to its former bed; nor can they restrain the investigation, use, control, protection, management or administration of
government from taking steps to revert the river or stream to its former such waters.
course. The owners of the land thus affected are not entitled to
compensation for any damage sustained thereby. However, the former Article 68. It shall be the duty of any person in control of a well to prevent
owners of the new bed shall be the owners of the abandoned bed in the water from flowing on the surface of the land, or into any surface
proportion to the area lost by each. water, or any porous stratum under neath the surface without being
beneficially used.
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 Article 69. It shall be the duty of any person in control of a well containing
therefor is secured from the Secretary of Public Works, Transportation and water with minerals or other substances injurious to man, animals,
Communication and work pertaining thereto are commenced within two agriculture, and vegetation to prevent such waters from flowing on the
years from the change in the course of the river or stream. surface of the land or into any surface water or into any other aquifer or
porous stratum.
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 70. No person shall utilize an existing well or pond or spread waters
for recharging substerranean or ground water supplies without prior
Article 60. The rafting of logs and other objects on rivers and lakes which permission of the Council.
are flotable may be controlled or prohibited during designated season of
the year with due regard to the needs of irrigation and domestic water Article 71. To promote better water conservation and usage for irrigation
supply and other uses of water. purposes, the merger of irrigation associations and the appropriation of
waters by associations instead of by individuals shall be encouraged.
Article 61. The impounding of water in ponds or reservoirs may be No water permit shall be granted to an individual when his water
prohibited by the Council upon consultation with the Department of Health requirement can be supplied through an irrigation association.
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 72. In the consideration of a proposed water resource project, due
regard shall be given to ecological changes resulting from the construction
Article 62. Waters of a stream may be stored in a reservoir by a permittee of the project in order to balance the needs of development and the
in such amount as will not prejudice the right of any permittee protection of the environment.
downstream. Whoever operates the reservoir shall, when required, release
water for minimum stream flow. Article 73. The conservation of fish and wildlife shall receive proper
consideration and shall be coordinated with other features of water
All reservoir operations shall be subject to rules and regulations issued by resources development programs to insure that fish and wildlife values
the Council or any proper government agency. receive equal attention with other project purposes.
Article 63. The operator of a dam for the storage of water may be required Article 74. Swamps and marshes which are owned by the State and which
to employ an engineer possessing qualifications prescribed for the proper primary value for waterfowl propagation or other wildlife purposes may be
operations, maintenance and administration of the dam. reserved and protected from drainage operation and development.
Article 64. The Council shall approve the manner, location, depth, and Article 75. No person shall, without prior permission from the National
spacing in which borings for subterranean or ground water may be made, Pollution Control Commission, build any works that may produce
determine the requirements for the registration of every boring or dangerous or noxious substances or perform any act which may result in
alteration to existing borings as well as other control measures for the the introduction of sewage, industrial waste, or any pollutant into any
exploitation of subterranean or ground water resources, and in source of water supply.
coordination with the Professional Regulation Commission prescribe the
qualifications of those who would drill such borings. Water pollution is the impairment of the quality of water beyond a certain
No person shall drill a well without prior permission from the Council. standard. This standard may vary according to the use of the water and
shall be set by the National Pollution Control Commission.
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 Article 76. The establishment of cemeteries and waste disposal areas that
transfer, the Council shall take into account the full costs of the transfer, may affect the source of a water supply or a reservoir for domestic or
the benefits that would accrue to the basin of origin without the transfer, municipal use shall be subject to the rules and regulations promulgated by
the benefits would accrue to the receiving basin on account of the transfer, the Department of Health.
alternative schemes for supplying water to the receiving basin, and other
relevant factors. 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
CHAPTER VI
Pollution Control Commission.
CONSERVATION AND PROTECTION OF WATERS AND
WATERSHEDS AND RELATED LAND RESOURCES Article 78. The application of agricultural fertilizers and pesticides may be
prohibited or regulated by the National Pollution Control Commission in
Article 66. After due notice and hearing when warranted by circumstances, the areas where such application may cause pollution of a source of water
minimum stream flows for rivers and streams, and minimum water levels supply.
for lakes may be established by the Council under such conditions as may
be necessary for the protection of the environment, control of pollution, CHAPTER VII
navigation, prevention of salt damage, and general public use.
ADMINISTRATION OF WATERS AND ENFORCEMENT OF THE
Article 67. Any watershed or any area of land adjacent to any surface water PROVISIONS OF THIS CODE
or overlying any ground water may declared by the Department of Natural
Resources as protected area Rules and regulations may be promulgated by Article 79. The Administration and enforcement of the provisions of this
such Department to prohibit or control such activities by the owners or Code, including the granting of permits and the imposition of penalties for
NOTES ON PROPERTY
administrative violations hereof, are hereby vested in the Council, and
except in regard to those functions which under this Code are specifically Article 88. The Council shall have original jurisdiction over all disputes to
conferred upon other agencies of the government, the Council is hereby relating to appropriation, utilization, exploitation, development, control,
empowered to make all decisions and determinations provided for in this conservation and protection of waters within the meaning and context of
Code. the provisions of this Code.
Article 80. The Council may deputize any official or agency of the The decisions of the Council on water rights controversies shall be
government to perform any of its specific functions or activities. immediately executory and the enforcement thereof may be suspended
only when a bond, in a amount fixed by the Council to answer for damages
Article 81. The Council shall provide a continuing program for data occasioned by the suspension or stay of execution, shall have been filed by
collection, research and manpower development needed for the the appealing party, unless the suspension is virtue of an order of a
appropriation, utilization, exploitation, conservation, and protection of the competent court.
water resources of the country.
All dispute shall be decided within sixty (60) days after the parties submit
Article 82. In the implementation of the provisions of this code, the Council the same for decision or resolution.
shall promulgate the necessary rules and regulations which may provide for
penalties consisting of a fine not exceeding One Thousand Pesos The Council shall have the power to issue writs of execution and enforce its
(P1,000.00) and/or suspension or revocation of the water permit or other decisions with the assistance of local or national police agencies.
right to the use of water. Violations of such rules and regulations may be
administratively dealt with by the Council. 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
Such rules and regulations prescribed by any government agency that matter of the controversy is situated within fifteen (15) days from the date
pertain to the utilization, exploitation, development, control, conservation, the party appealing receives a copy of the decision, on any of the following
or protection of water resources shall, if the Council so requires, be subject grounds; (1) grave abuse of discretion; (2) question of law; and (3)
to its approval. questions of fact and law.
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.
CHAPTER 2
Article 85. No program or project involving the appropriation, utilization,
exploitation, development, control, conservation, or protection of water
MINERALS
resources may be undertaken without prior approval of the Council, except
those which the Council may, in its discretion, exempt. Art. 519. Mining claims and rights and other matters
concerning minerals and mineral lands are governed by
The Council may require consultation with the public prior to the
implementation of certain water resources development projects.
special laws. (427a)
Article 86. When plans and specifications of a hydraulic structure are Q: What are the governing laws for the mineral resources of
submitted for approval, the government agency whose functions embrace the country?
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 A:
inconformity with the requirements of this Code and the rules and 1. RA7942 – Philippine Mining Act of 1995
regulations promulgated by the Council. Notwithstanding such approval, Section 2 – “All mineral resources in public and private
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
lands within the territory and exclusive economic zone of
liability for damages in case of failure thereof by reason of defect in plans the Republic of Philippines are owned by the State”
and specifications, or failure due to defect in construction, within ten (10) 2. RA7076 – People’s Small-Scale Mining Act of 1991
years from the completion of the structure.
Any action recover such damages must be brought within five (5) years
Q: What are minerals?
following such failure.
A: It cover all inorganic substances found in nature, whether
Article 87. The Council or its duly authorized representatives, in the solid, liquid, gaseous r any intermediate state, with the
exercise of its power to investigate and decide cases brought to its
cognizance, shall have the power to administer oaths, compel the
exception of the soil which supports organic life and of
attendance of witnesses by subpoena and the production of relevant ordinary earth, gravel, sand and stone which are used for
documents by subpoena duces tecum. building or construction purposes
Non-compliance of violation of such orders or subpoena and subpoena
duces tecum shall be punished in the same manner as indirect contempt of
Q: What are mineral lands?
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.

NOTES ON PROPERTY
A: Mineral Lands are lands which minerals exist in sufficient NOTE:
quantity or quality to justify the necessary expenditures to be a. Trade mark-goods
incurred in extracting and utilizing such minerals. b. Service mark- services
Q: State the rule on Ownership of Mineral lands and Q: What is a collective mark?
minerals?
A: Any visible sign designated as such in the application for
A: All mineral lands of public domain and all belong to state. registration and capable of distinguishing the origin or any
The disposition, exploitation, development or utilization shall other common characteristic, including the quality of the
be limited to citizens of Philippines, corporation at least 60% goods or services of different enterprises which use the sign
of capital is owned by citizens. under the control of the registered owner of the collective
mark.
Q: What is the Regalian doctrine in relation to the mineral
resources? Q: What is trade name?
A: All minerals belong to the state whether the land covered A: The name of designation identifying or distinguishing an
by torrens system and whether or not it is privately owned. enterprise.
Ownership of mines does not depend upon the ownership of
soil in this country 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
CHAPTER 3 it is applied.
TRADE-MARKS AND TRADE-NAMES
Q: State the distinction between trademark and trade name.
Art. 520. A trade-mark or trade-name duly registered in the
proper government bureau or office is owned by and A:
pertains to the person, corporation, or firm registering the
same, subject to the provisions of special laws. (n) Trade mark Trade name
Generally, a sign device or It is descriptive of the
Art. 521. The goodwill of a business is property, and may be mark affixed in goods or manufacturer or the dealer
transferred together with the right to use the name under articles, by which articles himself. It involves the
which the business is conducted. (n) produced or dealt by a individuality of the matter or
particular person or dealer for protection in
Art. 522. Trade-marks and trade-names are governed by organization, are trade.
special laws. (n) distinguished.
Q: What is trade mark of trade name? Q: Discuss the doctrine of secondary meaning.
A: TRADE-MARK of TRADE NAME is a duly registered in the A: Word or phrase originally incapable of exclusive
proper government bureau or office. It pertains to person, appropriation with reference to an article on the market,
corporation or firm registering the same, subject to because geographically or otherwise descriptive, might
provisions of special laws. nevertheless have been used so long and so exclusively by
one producer with reference to his article, that in that trade
Q: What is the effect of registration in the Bureau of and to that branch of the purchasing public, the word or
Trademark? phrase has come to mean that the articles was his product.
The word or phrase should acquire a secondary meaning as to
A: Duly registered in the bureau of trademark under the be exclusively associated with its products and business.
intellectual property office, it shall pertain in ownership to
the person or juridical entity which registered it. Ex. Vigan longganisa cannot be patented, it must be Mang
Ed’s vigan longganisa
Q: What is a mark?
Q: What is the test of dominancy?
A: Any visible sign capable of distinguishing the goods (trade
mark) or services (service mark) of an enterprise and shall A: If the competing trade mark contains the main or essential
include a stamped or marked container of goods. or dominant features of another, and confusion deception is
likely to result infringement.

NOTES ON PROPERTY
2. Relation is one of power or control
Q: What is the Wholistic of totality test? 3. Control is one of fact which is effective but without
resolving whether it carries with it or not a title of
A: ownership
Q: What is infringement? Classification of possession
A: A colorable imitation Q: What are the classes of Possession?
Q: What is unfair competition? A:

1. In one’s own name and in name of another
A: Passing of the product as if it is the original 2. In the concept of an owner and possession in the
concept of a holder
Q: What is Goodwill? 3. Good faith and bad faith
A: Reputation for competence, honesty and fair dealing. Lure Viewpoints of possession
of a product and place of business arising from name,
reputation, quality and general atmosphere of the business Q: What are the viewpoints of possession?
house.
A:
Q: Is goodwill a real or personal property? a. INCIDENTAL to OWNERSHIP -If you own it, automatically
you have the RIGHT TO POSSESSION
A: It is a special personal property. It is inseparable from the Ex: I own a house, I am entitled to possess it
business to which it is adhering. But, it is transferable with b. INDEPENDENT from OWNERSHIP-Independent and
the right to use the name of the business under which it is separate from ownership. For instance, a lessee of a
conducted. 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?

Title V. - POSSESSION
A:
CHAPTER 1 1. Possession WITHOUT TITLE -Mere holding without any
POSSESSION AND THE KINDS THEREOF right
ex. Possession of a thief over a stolen thing
Art. 523. Possession is the holding of a thing or the
enjoyment of a right. (430a) 2. Possession WITH JURIDICAL TITLE but title IS NOT ONE
OF OWNERSHIP-juridical possession. In this case, the
Q: What is possession? possession is peaceably acquired
ex. Tenant, depository or pledge
A: It is the holding of a thing and enjoyment of a right.
3. Possession WITH JUST TITLE which is sufficient to
Q: Is possession a right or a fact? TRANSFER OWNERSHIP but NOT ACQUIRED FROM REAL
OWNER- this degree of possession ripens to full
A: It is a right and a fact. It is a fact since it exists; but from ownership by lapse of time.
the moment it exists, certain consequences follow, making it ex. Possession of a buyer of a land from one who
also a right. pretends to be the owner
NOTE: Only things and rights which are susceptible of being 4. Possession WITH JUST TITLE FROM REAL OWNER- Perfect
appropriated may be the object of possession (Art. 530) possession. This is the possession that springs from
ownership
Concept of Possession:
Mere possession cannot defeat the title of a holder of a
1. Implies relation between a person and things registered Torrens Title to real property (Eduarte v. CA)

NOTES ON PROPERTY
(2) Concept of Possession
Elements of possession a. Concept of an owner
b. Concept of a holder
Q: What are the elements of possession? (3) Condition of the mind
a. Good faith
A: b. Bad faith
1. Existence of a thing or right
2. Holding (actual or constructive) of the thing; Q: What are the kinds of possession in another’s name?
enjoyment or exercise of a right
3. Conscious and deliberate intention to possess the A:
thing 1. Voluntary- as when the agent possesses for the principal
4. Holding is by virtue of one’s right, either as an owner by virtue of agreement
or as a holder 2. Necessary- as when a mother possesses for a child still in
her womb
Q: How is the element “holding of the thing” accomplished? 3. Unauthorized- this will become the principal’s possession
only after there has been a ratification without prejudice
A: It is accomplished by acquiring possession through any of to the effects on negotiorum gestio.
the modes provided in 531.
Owner of a real estate has possession, either when he himself
Q: How would you characterize possession? is physically in occupation of the property, or when another
person who recognizes his rights as owner is in such
A: Possession is presumed ownership. occupancy. An example of actual possession of real property
by an owner through another is a lease agreement whereby
Right to possession v. Right of possession the lessor transfers merely the temporary use and enjoyment
of the thing leased. (Reyes v. CA)
Q: Distinguish Right to possession from right of
possession. If both the fact of possession and right of possession are
found in the same person, such possession is said to be
A: exercised in one’s own name. If, on the other hand, the right
to the possession is in one person while the fact of possession
RIGHT TO POSSESSION RIGHT OF POSSESSION
is in another person and the latter merely acts in
It is an incident or attribute It is an independent right,
representation of the former, the latter’s possession is said to
of ownership of the thing separate from ownership
be exercised in another’s name. In this case, the actual
Also known as Jus Also known as jus possessor (the agent) is not considered in law as legal
possidendi possessiones possessor because the possession is not by virtue of his own
Example: an owner of an Example: a lessee is right. (Heirs of Jose Olviga v. CA)
apartment has the right to entitled to possess the
possess it property leased Classes of possession
Q: What is constructive possession? Q: What are the classes of possession?
A: The possession of a part is a possession of the whole. A:

Possession in the eyes of the law does not mean that a man 1.DIRECT POSSESSION -Owner or possessor is in actual
has to have his feet on every sqaure meter of ground before possession of a thing. Possessing the thing in his own name
it can be said that he is in possession (Ramos v. Dir. Of Lands).
2.INDIRECT POSSESSION-Possess the thing through an
Art. 524. Possession may be exercised in one's own name or authorized agent; Exercising it in the name of the agent or
in that of another. (413a) another
Kinds of possession NOTE: The owner can subject the property to his own will. He
can dispose the same. On the other hand, a mere possessor
Q: What are the kinds of possession? has limited rights over property. As a matter of fact, he
cannot dispose.
A:
(1) According to name used Art. 525. The possession of things or rights may be had in
a. In own name one of two concepts: either in the concept of owner, or in
b. Name of another

NOTES ON PROPERTY
that of the holder of the thing or right to keep or enjoy it, Mistake upon a doubtful or difficult question of law may be
the ownership pertaining to another person. (432) the basis of good faith. (433a)
Concepts of possession Art. 527. Good faith is always presumed, and upon him who
alleges bad faith on the part of a possessor rests the burden
Things or rights may be possessed in of proof. (434)
CONCEPT OF AN OWNER -Possession of the possessor Art. 528. Possession acquired in good faith does not lose this
proceeds from the person’s belief or pretension that he is the character except in the case and from the moment facts
owner of the thing as manifested by certain acts of ownership exist which show that the possessor is not unaware that he
and the public believes he is the owner. May ripen into possesses the thing improperly or wrongfully. (435a)
ownership through acquisitive prescription. So long as a
person claims ownership of the property and does not Art. 529. It is presumed that possession continues to be
acknowledge in another a superior right, he is a possessor in enjoyed in the same character in which it was acquired, until
the concept of an owner, even a possessor in bad faith is the contrary is proved. (436)
entitled to acquire ownership of a property by virtue of
extraordinary prescription Possessor in good faith and possessor in bad faith
CONCEPT OF A HOLDER -Possession of the possessor does Q: Who is a possessor in good faith?
not arise from any belief or conviction that he is the owner of
the thing, because the possessor acknowledges the A: He is one who is not aware of any existing flaw or defect in
ownership of thing by another person. his title or mode of acquisition, which flaw or defect renders
it invalid.
NOTE: Lessee, usufructuary, etc. are considered as possessor
in the concept of a holder with respect to the thing itself but Q: What are the requisites to be considered as possessor in
considered in the concept of the owner with respect to their good faith?
right
A:
Where a lease agreement, whether express or implied, is 1. Possessor has a title or mode of acquisition
subsequently entered into by the mortgagor and the 2. Flaw or defect in title or mode which invalidates it
mortgagee after the expiration of the redemption period and 3. Possessor is unaware of the flaw or defect, or believes
the consolidation of title in the name of the latter, a case for that the thing belongs to him
ejectment or unlawful detainer, not a motion for a writ of
possession, is the proper remedy in order to evict from the A person who has no title or mode of acquisition but whose
questioned premises a mortgagor turned lessee. A lessee is a occupation of the land of another is by reason of the latter’s
legitimate possessor of the subject properties and could not tolerance or permission cannot be considered a possessor or
be deprived of its lawful possession by a writ of possession. builder in good faith.
(Bukidnon Doctors’ Hospital, Inc. v. MBTC)
Q: What do you mean by mistake upon a doubtful or
EFFECTS OF POSSESSION IN CONCEPT OF OWNER difficult question of law may be the basis of good faith?
Q: What are the effects of possession in concept of owner? A: It refers to the honest error in the application of the law or
in the interpretation of doubtful or conflicting legal provisions
A: or doctrines and not to ignorance of the law.
1. Exercise acts of ownership as if he is the owner
2. Bring action for protection Q: Are possessors in the concept of a holder considered
3. Ask for registration of his possession possessors in good faith?
4. Entitled to just compensation
5. Can avail of acquisitive prescription A: Possessors in the concept of a holder are not possessors in
good faith. Possessor in good faith presupposes ownership in
Art. 526. He is deemed a possessor in good faith who is not another.
aware that there exists in his title or mode of acquisition
any flaw which invalidates it. Q: Who is a possessor in bad faith?
He is deemed a possessor in bad faith who possesses in any A: He is one who is aware of the flaw or defect in his title or
case contrary to the foregoing. mode of acquisition which renders it invalid.

NOTES ON PROPERTY
NOTE: No tacking of bad faith, unless the successors in 2. To be continuedly possessed in such character of
interest had learned of the defect in the title and still possession
purchased it. 3. Presumed ownership
Q: Is bad faith transmissible? Art. 530. Only things and rights which are susceptible of
being appropriated may be the object of possession. (437)
A: Bad Faith is not transmissible from a person to another,
even an heir is not affected by bad faith of the deceased Q: What are the 2 Kinds of possessor?
predecessor
A:
NOTE: 1. Public – possessor is the government
General Rule: Art3, NCC – Ignorance of the law excuses no 2. Private – private person or entity
one from compliance therewith.
All things which are outside the commerce of man and those
Exception: Possessor’s mistake upon a doubtful or difficult which, by reason of physical impossibility cannot be
subjected to human control, may not be the object of
question of law may serve as the basis of his good faith.
possession
Petitioner is not conversant with the laws because he is not a
Servitudes such as discontinuous easements or non-apparent
lawyer. He proceeded on the well-grounded belief that he
easements are not susceptible of possession since they are
was not violating the prohibition regarding the alienation of
not susceptible of continuous exercise.
the land. (Kasilag v. Roque, 69 Phil 217)
Examples of things and rights which may not be the object
Q: Which is presumed, good faith or bad faith?
of appropriation:
A: Good faith is always presumed
1. Res Communes due to depth, distance or immensity
– sun, stars, moon, ocean
Q: When will the possession in good faith cease?
2. Forces of nature in diffused state unless brought
under human control through science
A: Possession in good faith ceases from the moment defects
3. Property of public dominion
in the title are made known to the possessors by extraneous
4. Discontinuous servitudes
evidence or by suit for recovery by the true owner.
5. Non-apparent servitudes
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
faith would have received
As to rending fruits
Liable with legitimate No right
CHAPTER 2
possessor for expenses of
ACQUISITION OF POSSESSION
cultivatio and shall share in
the net harvest to time of
Art. 531. Possession is acquired by the material occupation
possession
of a thing or the exercise of a right, or by the fact that it is
As to necessary expenses
subject to the action of our will, or by the proper acts and
Right of reimbursement and Right of reimbursement only legal formalities established for acquiring such right. (438a)
retention
As to useful expenses Art. 532. Possession may be acquired by the same person
Limited to right of removal None who is to enjoy it, by his legal representative, by his agent,
or by any person without any power whatever: but in the
Q: What are the presumptions with respect to last case, the possession shall not be considered as acquired
possession? until the person in whose name the act of possession was
executed has ratified the same, without prejudice to the
A: juridical consequences of negotiorum gestio in a proper
1. Good faith
case. (439a)

NOTES ON PROPERTY
Modes of Acquiring Possession Constructive Delivery equivalent to Material Occupation
Q: What are the modes of acquiring possession? Q: What are the 2 Forms of Constructive Delivery involved in
Material Occupation?
A:
1. Material occupation of a thing or the exercise of a right A:
2. By subjecting the thing or right to the action of our will 1. Tradicion brevi manu
3. By proper acts and legal formalities established for the 2. Tradicion constitutum possessorium
acquisition of such right
Q: Which of the modes is an original mode of acquisition? Q: What is tradicion brevi manu?
A: Material occupation of a thing or the exercise of a right A: Possessor who is possessing the thing by a title other than
ownership, continues to possess it under a new title, now of
Q: Which of the modes is considered derivative? ownership.
A: Q: What is tradicion constitutum possessorium?

1. By subjecting the thing or right to the action of our
will A: Possessor who is the owner of the property continues his
2. By proper acts and legal formalities established for possession no longer under a title of ownership but under a
the acquisition of such right title less than ownership
Q: What are the requisites for acquiring possession? Q: What is the Doctrine of constructive possession?
A: A: Possession is under title calling for the whole.

1. Corpus – material holding of the thing or exercise of right
which may be acquired through any modes mentioned Ex: Possession and cultivation of a portion of a tract under a
2. Animus possidendi – intent to possess the thing or right claim of ownership of all is constructive possession if the
remainder is not in the adverse possession of another
Ex: Stolen goods placed in the bag of another person without (reason: the law does not mean that a man has to have his
the former’s knowledge and consent – not a possessor feet on every square meter of ground before it can be said
because of lack of intent to possess the goods that he is in possession)
Q: Differentiate Occupation under Art. 531 and occupation Q: What are the requisites?
under Art. 712.
A:
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
Occupation under Art531 Occupation under Art712 4. Area claimed must be reasonable
Mode of acquiring Mode of acquiring
possession ownership NOTE: Mere planting of a sign or symbol of possession cannot
Applies whether or not Applies only where the justify a Magellan-like claim of dominion over an immense
the property is with an property is without an tract of territory. Application of the doctrine of constructive
owner or not owner possession shall depend, among others, to the size of the
There must be intent to There must be intent to tract in controversy with reference to the portion actually in
possess own or appropriate the possession of the claimant (Lasam v. Director of Lands,
A parcel of land may be A parcel of land cannot 1938, 65 Phil 367)
the object of possession be the object of
occupation The mere fact of declaring uncultivated land for taxation
purposes and visiting it every once in a while, as was done by
Q: What is material occupation? the alleged possessor does not constitute acts of possession
(Ramirez v. Director of Lands, 1934, 60 Phil 114)
A: Actual physical possession or material apprehension

NOTES ON PROPERTY
Mere casual cultivation of portions of the land by the Note that rendition of services not included EXCEPT if services
claimant and the raising thereon of cattle do not constitute rendered benefitted another (based on quasi-contracts--no
possession under claim of ownership (Director of Lands v. person shall be unjustly enriched at the expense of another).
Reyes, 1975, 68 SCRA 177)
Q: What is the limitation to this rule?
Q: What do you mean by “subjection to action of will”?
A: Accion In Rem Verso – recovery for what has been paid
A: A degree of control over the thing sufficient to subject the without just cause; applicable only after exhausting all other
same to the action of one’s will. means of recovering (contract, quasi-contract, crime or quasi-
delict).
Q: What are other kinds of constructive delivery?
Q: What are the requisites for the accion in rem verso?
A:
A:
1. Tradicio symbolica – delivery of symbols or some object 1. Enrichment
which represent those to be delivered thus placing the 2. Another suffered a loss
thing under the control of the transferee 3. Without just or legal ground
Example, delivery of a key to the house 4. No other actions based on contract, quasi-contracts,
2. Tradicion longa manu – effected by the transferor crime or quasi-delict
pointing out to the transferee the things which are being
transferred Q: Is the government exempted from this principle of unjust
enrichment?
Q: Again, who may acquire possession?
A: Government not exempted from the principle of unjust
A: enrichment.
1. Person who is to enjoy it
2. Agent or legal representative – someone authorized to Q: Distinguish rem verso from solution indebiti.
acquire possession by the person who is to enjoy it
A: Rem Verso is payment could be made voluntarily but there
NOTE: If person acquires possession over the property will still be recovery. It is subsidiary to solution indebiti. This is
without prior consent of the principal, the principal may or different from Solutio Indebiti which is payment made by
may not ratify the act of possession mistake (UST vs. City of Manila).
However, if the principal ratified it, possession shall be Q: Is capacity to act necessary for the acquisition of
considered acquired only upon ratification. possession?
In case of negotiorium gestio, ratification by the person for A:

whom the thing was acquired will retroact to the time of GR: Capacity to act is necessary for the acquisition of
apprehension by the gestor and the possession of the former possession
must be deemed to have been acquired from that moment
Exception:
Article 22. Every person who through an act of performance
by another, or any other means, acquires or comes into the Art. 533. The possession of hereditary property is deemed
possession of something at the expense of the latter transmitted to the heir without interruption and from the
without just or legal ground, shall return the same to him. moment of the death of the decedent, in case the
inheritance is accepted.
NOTE: Enrichment with a just or legal ground is not
prohibited One who validly renounces an inheritance is deemed never
to have possessed the same. (440)
Coverage:
1. Someone acquires or comes into possession of If possession of property is effected by way of succession,
“something” which means delivery or acquisition of whether testate or intestate, such possession is deemed
“things” transmitted to the heir without interruption from the
2. Undue acquisition at the expense of another, without moment of the death of the decedent but only if the heir
just or legal ground accepts the inheritance.

NOTES ON PROPERTY
Accepted inheritanc is deemed possession without
interruption from the death of the decedent Art. 537. Acts merely tolerated, and those executed
clandestinely and without the knowledge of the possessor
Q: What is the reason for the rule of uninterrupted of a thing, or by violence, do not affect possession. (444)
possession?
Minors may acquire possession provided they are
A: The purpose is to prevent vacuum as regards possession represented. They have the capacity to acquire property, but
during the interim period between the death of the decedent if there are legal impediments, they must be represented by
and the heir’s acceptance. their legal representatives.
Possession is deemed transmitted from the moment of death Q: What are the modes where possession can’t be acquired?
of the decedent and without interruption:
A:
1. If the heir accepts the inheritance- retroactive effect 1. Use of force/intimidation or by violence as long as
from date of death; and there is a possessor who objects thereto;
2. If the heir repudiates- he never possessed the 2. Acts executed clandestinely and without knowledge
inheritance; other legal heirs is in possession or if of the possessor which means that:
none, the state. -acts are not public and unknown to the owner or
possessor.
Art. 534. On who succeeds by hereditary title shall not suffer 3. Stealth; and
the consequences of the wrongful possession of the 4. Acts merely tolerated (permissive use) such as when
decedent, if it is not shown that he was aware of the flaws possession is allowed by the owner not by reason of
affecting it; but the effects of possession in good faith shall duty or obligation but by the impulse of sense of
not benefit him except from the date of the death of the neighborliness or good familiarity with persons.
decedent. (442)
That petitioners illegally entered into and occupied the
GR: The heir will not suffer the consequences of the wrongful property in question, respondents had no right to take the
act of the decedent. law into their own hands and summarily or forcibly eject the
occupants therefrom. The rule of law does not allow the
XPN: Except if it shown that he was aware of the flaws or mighty and privileged to take the law into their own hands to
defects in the possession of his predecessor in interest. enforce their alleged rights. They should go to court and seek
judicial vindication. (Heirs of Pedro Laurora v. Sterling
Q: What is the rationale behind the rule? Technopark III, et al., G.R. No. 146815, April 9, 2003)
A: Bad faith is intransmissible because it is a state of mind Q: What are the acts which do not affect possession?
personal to the person who acted.
A: These acts do not affect possession:
Existence of bad faith on the part of the possessor does not
prejudice his successors-in-interest – bad faith is not 1. Abandonment: no longer interested in possessing,
transmissible from one person to another, not even to an waiver;
heir. Accordingly, only personal knowledge of the flaw in 2. Action for ejectment – unlaqful detainer and
one’s title or mode of acquisition can make him a possessor forcible entry;
in bad faith. Consequently, the effects of possession in good 3. criminal action : trespassing; and
faith shall not benefit the heir except from the date of the 4. possession of squatters : mere tolerance; does not
death of the decedent. affect possession, owner is not ousted of his
property.
Art. 535. Minors and incapacitated persons may acquire the
possession of things; but they need the assistance of their Q: What are the distinctions between abandonment and
legal representatives in order to exercise the rights which tolerance?
from the possession arise in their favor. (443)
A:
Art. 536. In no case may possession be acquired through Abandonment Tolerance
force or intimidation as long as there is a possessor who No longer interested in Allowed by owner by sense
objects thereto. He who believes that he has an action or a possessing, waiver. of neighborliness or good
right to deprive another of the holding of a thing, must familiarity with persons
invoke the aid of the competent court, if the holder should
refuse to deliver the thing. (441a) Recognize and assert right

NOTES ON PROPERTY
but temporarily allow to
occupy Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
Q: What do you mean by toleration? protected in or restored to said possession by the means
established by the laws and the Rules of Court.
A: It is the act or practice of permitting or enduring
something not wholly approved of. A possessor deprived of his possession through forcible
entry may within ten days from the filing of the complaint
Acts merely tolerated are those which by reason of present a motion to secure from the competent court, in the
neighborliness or familiarity, the owner of the property action for forcible entry, a writ of preliminary mandatory
allows his neighbor or another person to do on the property. injunction to restore him in his possession. The court shall
(Sarona v. Villegas, 131 Phil 365, March 27, 1968) decide the motion within thirty (30) days from the filing
thereof. (446a)
Clandestine (secret, hidden or concealed) and unknown acts
– no acquisitive prescription Q: What are the rights of every possessor?
Art. 538. Possession as a fact cannot be recognized at the A:

same time in two different personalities except in the cases 1. Right to be respected in his possession;
of co-possession. Should a question arise regarding the fact 2. Right to be protected in or restored to said
of possession, the present possessor shall be preferred; if possession (forcible entry, unlawful detainer) by
there are two possessors, the one longer in possession; if legal means should he be disturbed therein;
the dates of the possession are the same, the one who 3. To secure from a competent court in an action for
presents a title; and if all these conditions are equal, the forcible entry the proper writ to restore him in his
thing shall be placed in judicial deposit pending possession; and
determination of its possession or ownership through 4. Exercise self help
proper proceedings. (445)
Possession contemplated by law is legal possession – thief
Rules of Preference in case of Conflict over Possession de cannot exercise possession. Such possession is exercised by
Facto every possessor – in GF and BF.
1. Present or actual possessor shall be preferred; Only the possession acquired and enjoyed in the concept of
2. If there are 2 possessors, the one longer in possession is owner can serve as a title for acquiring dominion.
preferred;
3. If the dates of possession are the same, the one who Mere tax declarations do not vest or prove ownership of the
presents a title; and property in the declarant. Yet, it is also undeniable that the
4. If all of the above are equal, the fact of possession shall payment of realty tax coupled with actual possession in the
be judicially determined, and in the mean time, the thing concept of owner is a positive indication of ownership.
shall be placed in judicial deposit.
PRELIMINARY MANDATORY INJUNCTION
Art. 538 settles only question of possession and such
possession is different from ownership. Q: What is a writ of preliminary mandatory injunction?
Possession may be enjoyed by 2 or more possessors: co- A: It is a writ directing a person to do an act, commanding to
possession, consent of owner give back the land or to respect the possession. It is an
incidental remedy.
Possession as a fact cannot be recognized at the same time in
two different personalities except in the case of co- A provisional remedy granted at any stage of an action prior
possession to judgment or final order, commanding or requiring the
performance of a particular act. Its purpose is to prevent
NOTE: As between lessee and one who was allowed by the further dispossession. This applies to actions for forcible entry
owner to enter the land and construct a house, lessee will be and unlawful detainer.
sustained.
PRELIMINARY PROHIBITORY INJUNCTION
Q: What is a preliminary prohibitory injunction?

CHAPTER 3
EFFECTS OF POSSESSION

NOTES ON PROPERTY
A: It is an order preventing a person from doing an act; an
order telling him to stop from taking the property. Putative title is not just title. Accordingly, it is where a person
has the impression and belief that he is the owner of the
RULES OF COURT property, however he is not the owner there being no mode
of acquiring ownership e.g. stealing – not a mode of
Section 15. Preliminary injunction. — The court may grant acquiring ownership.
preliminary injunction, in accordance with the provisions of
Rule 58 hereof, to prevent the defendant from committing Mere payment of real estate taxes does not prove ownership.
further acts of dispossession against the plaintiff.
Art. 541. A possessor in the concept of owner has in his
A possessor deprived of his possession through forcible from favor the legal presumption that he possesses with a just
the filing of the complaint, present a motion in the action for title and he cannot be obliged to show or prove it. (448a)
forcible entry or unlawful detainer for the issuance of a writ
of preliminary mandatory injunction to restore him in his Q: State the legal presumption when it comes to
possession. The court shall decide the motion within thirty possession?
(30) days from the filing thereof.
A: The law presumes that the possessor is in the concept of
Section 20. Preliminary mandatory injunction in case of owner possesses just title. Thus, he cannot be obliged to
appeal. — Upon motion of the plaintiff, within ten (10) days show or prove it.
from the perfection of the appeal to the Regional Trial Court,
the latter may issue a writ of preliminary mandatory For legal presumption of ownership to arise, the person must
injunction to restore the plaintiff in possession if the court is be: (disputable)
satisfied that the defendant's appeal is frivolous or dilatory or
that the appeal of the plaintiff is prima facie meritorious. a. In actual or constructive possession of the property;
and
Art. 540. Only the possession acquired and enjoyed in the b. Possession must be in the concept of an owner.
concept of owner can serve as a title for acquiring dominion.
(447) Article 1118. Possession has to be in the concept of an
owner, public, peaceful and uninterrupted.
Acquisitive prescription
This article applies to both real and personal property as the
A possessor in the concept of an owner, serve as title for law did not distinguish.
acquiring ownership over a property by acquisitive
prescription: Presumptions in favor of the possessor
1. Personal property- 4 years in good faith and 8 years Q: What are the presumptions created by law in favor of the
in case of bad faith; possessor?
2. Realty- 10 years for good faith (ordinary
prescription) and 30 years in bad faith (extra- A:
ordinary prescription). 1. Presumption on the continuance of possession;
2. Uninterrupted possession of hereditary property;
Just title 3. Possession with just title;
4. Possession of movables with real property;
Not limited to documents which are sufficient to transfer 5. Exclusive possession of common property;
ownership. It can cover other acts, even verbal acts which are 6. Continuous possession; and
legally sufficient to transmit ownership of property of real 7. Uninterrupted possession.
right:
Q: When is the presumption that a possessor has a just title
i. PERFECT (Just title in possession) – true and valid applicable?
title sufficient to transfer ownership; Titulo Verdadero y
valido A: It only applies when 2 requisites are present:
ii. IMPERFECT (Just title in prescription) – COLORABLE
TITLE: although there is a mode of transferring ownership, 1. He must be in possession; and
nonetheless the grantor is not the owner; must be proved; 2. The possession must be in the concept of an owner
titulo Colorado. and not a mere holder.
PUTATIVE TITLE (Titulo Putativo) Q: What are the reasons for the presumption?

NOTES ON PROPERTY
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? Interruption can include losing the property. It is produced by
judicial summons.
A: Just tile is that which is legally sufficient to transfer
ownership of the thing or the real right to which it relates and Q: What do you mean by judicial summons?
may be proved orally by witnesses as well as through written
documents or evidences. A: It is the service of a copy of a complaint upon the
defendant together with the order of the court requiring the
Article 1131. For the purposes of prescription, just title must latter to answer within a certain period of time, failing in
be proved; it is never presumed. which, default order may be issued; issued so that the court
will acquire jurisdiction over the person of the defendant.
Acquisitive Prescription
Q: When will judicial summons not give rise to interruption?
1. Possession of real property presumes that movables
found therein are possessed by occupying the real A:
property (disputable presumption); 1. When the same is void for lack of legal solemnities;
2. Can be rebutted by evidence e.g. lessee can prove he 2. Plaintiff should desist from the complaint or should allow
owns appliances in the leased apartment; and the proceedings to lapse; and
3. Only movables and immovables – doesn’t include rights, 3. Possessor should be absolved from the complaint.
only corporeal things.

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

been built, planted or sown in bad faith may demand the

NOTES ON PROPERTY
demolition of the work, or that the planting or sowing be 545) could have
removed, in order to replace things in their former condition reeceived with
at the expense of the person who built, planted or sowed; due care or
or he may compel the builder or planter to pay the price of diligence
the land, and the sower the proper rent. 2. pay damages
amounting to a
Article 451. In the cases of the two preceding articles, the reasonable rent
landowner is entitled to damages from the builder, planter for the term of
or sower. possession
b. Pending
Q: What if the expenses arise greater?
Art. 546. Necessary expenses shall be refunded to every
A: The present rules will not apply. possessor; but only the possessor in good faith may retain
the thing until he has been reimbursed therefor.
The herein rules shall apply only natural/ industrial fruits still
growing and not yet ripe for harvesting. Furthermore, they Useful expenses shall be refunded only to the possessor in
will only apply when there is net harvest/ proceeds. good faith with the same right of retention, the person who
has defeated him in the possession having the option of
The possessor shall have a right to a part of the expenses of refunding the amount of the expenses or of paying the
cultivation and part of the net harvest both in proportion to increase in value which the thing may have acquired by
the time of possession ; assumption that one has been reason thereof. (453a)
declared as lawful possessor.
NOTE: Necessary expenses shall be refunded to possessors
FORMULA: whether good or bad faith. These expenses are incurred to
preserve the property without which it will physically
Gross harvest – expenses = net harvest (In order to prevent deteriorate. But only possessor in GF will have the right of
unjust enrichment) retention.
The net harvest shall be proportionately divided between Useful expenses shall only be refunded to possessor in GF.
spenders in accordance with length of possession. The owner Note that, the luxurious expenses shall not be included.
may allow possessor to finish cultivation / gathering and if
refused, the latter shall lose his right to be indemnified. Summary of rules
Summary of rules EXPENSES POSSESSOR IN GF POSSESSOR IN BF

Necessary this shall be Shall have a right
KINDS OF FRUITS Possessor in GF Possessor in BF expenses refunded to every only to the
(Art. 544) (Art. 549) possessor; but expenses
Entitled to the Shall reimburse only the possessor mentioned in par.
fruits received the fruits received in GF may retain 1 of Art. 546 and
before the and those which the thing until he in Art. 443
possession is the legitimate has been
legally interrupted possession could reimbursed
have received thereof
Civil Are deemed to Not entitled Useful expenses Shall be refunded No right
accrue daily and only to the whatsoever
belong to the possessor in GF
possessor in GF in with the same
that proportion right of retention,
(Art. 544, par.2) the person who
Natural/ Are considered 1. Must has defeated him
Industrial received from the account for them in the possession
a. Gathered time they are and return the having the option
gathered or value of: of refunding the
covered and the a.those already amount of the
possessor in GF receivd expenses or of
has the right to b.those which the paying the
retain them (Art. legal possession increase in value

NOTES ON PROPERTY
which the thing expenses mentioned in paragraph 1 of Article 546 and in
may have Article 443. The expenses incurred in improvements for pure
acquired by luxury or mere pleasure shall not be refunded to the
reason thereof possessor in bad faith, but he may remove the objects for
Luxurious It is not entitled to It is not entitled to which such expenses have been incurred, provided that the
expenses refund but he may refund but he may thing suffers no injury thereby, and that the lawful
remove the same remove the same possessor does not prefer to retain them by paying the
if the principal if the thing suffers value they may have at the time he enters into possession.
suffers no injury injury and that the (445a)
and the successor lawful possessor
in possession does do not prefer to NOTE: Art. 548 refers to a possessor in good faith who
not prefer to retain them by introduced improvements for pure luxury.
refund the paying the value
amount expended they may have at As for luxurious or ornamental expenses, the possessor in GF
the time he enters can remove as long as there’s no substantial damage to the
into possession principal. However, a possession in BF can remove provided
Cost of litigation Generally, to the no damage, provided further lawful possessor does not wish
losing party to retain and pay value at the time he enters possession.
Loss or No liability, unless Always liable
deterioration loss is due to his Under Art 549, the possessor in BF shall reimburse fruits
fraudulent act or received and those which the lawful possession could have
negligence received and shall have a right only to the expenses
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 Art. 550. The costs of litigation over the property shall be
good faith may remove them, unless the person who borne by every possessor. (n)
recovers the possession exercises the option under
paragraph 2 of the preceding article. (n) NOTE: The cost of litigation will be shouldered by the
defeated party
Q: When may a possesssor in GF remove the useful
improvements? Art. 551. Improvements caused by nature or time shall
always insure to the benefit of the person who has
A: Possessor in good faith may remove the useful succeeded in recovering possession. (456)
improvements he introduced without damage; substantial
damage/ injury; that which will reduce the value of the NOTE: Improvements caused by nature or time shall always
property. inure to the benefit of persons who is declared as the lawful
possessor.
Q: How about a possessor in bad faith?
Examples: alluvial deposits; by time: flavor of wine, antique
A: Possessor in bad faith has no right to remove useful article
improvements whether or not it will cause damage.
Art. 552. A possessor in good faith shall not be liable for the
Q: Can luxury expenses be refunded? deterioration or loss of the thing possessed, except in cases
in which it is proved that he has acted with fraudulent
A: Expenses for pure luxury shall not be refunded to the intent or negligence, after the judicial summons.
possessor whether in good faith or bad faith.
A possessor in bad faith shall be liable for deterioration or
Art. 548. Expenses for pure luxury or mere pleasure shall not loss in every case, even if caused by a fortuitous event.
be refunded to the possessor in good faith; but he may (457a)
remove the ornaments with which he has embellished the
principal thing if it suffers no injury thereby, and if his Q: A possessor in good faith shall not be liable for
successor in the possession does not prefer to refund the deterioration or loss. What are the exceptions?
amount expended. (454)
A:
Art. 549. The possessor in bad faith shall reimburse the 1. where he acted with fraudulent intent
fruits received and those which the legitimate possessor 2. acted with negligence after judicial summons
could have received, and shall have a right only to the

NOTES ON PROPERTY
NOTE: A possessor in bad faith is always liable for A: Spes recuperandi (hope of recovery or recapture) is gone
deterioration or loss during even by fortuitous event and the animus revertendi (intent to recover) is finally given
up.
Art. 553. One who recovers possession shall not be obliged
to pay for improvements which have ceased to exist at the Q: Who should make the abandonment?
time he takes possession of the thing. (458)
A: Must be made by a possessor in the concept of an owner.
Q: When will the person who recovers possession be not
obliged to pay for improvements? 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
A: At the time the possession of the thing was taken the the sea upon the highway. Owner of the property cannot be
improvements no longer exist, the obligation to reimburse held to have abandoned the same until at least he has some
disappears. knowledge of the loss of its possession or of the loss of the
thing. (US v. Laurente Rey, 8 Phil 500, 1907)
Art. 554. A present possessor who shows his possession at
some previous time, is presumed to have held possession 2.ASSIGNMENT made to another either by gratuitous or
also during the intermediate period, in the absence of proof onerous title- the total transfer of ownership of a property by
to the contrary. (459) the owner to another person.
a. Onerously (sale)
Principle of continuous possession b. gratuitous (donation)
Q: What is the principle of continuous possession? Q: What is assignment?
A: If a person is the present possessor of a property and it is A: Relinquishment of possession in favor of a definite or
established that he had possessed it before, it is presumed specified transferee.
that he was also in possession during the interval period.
Q: What is the rule with respect to the assignor?
Q: When is this principle relevant?
A: Assignor must be in the concept of owner and has capacity
A: It is relevant in cases involving acquisitive prescription to alienate.
Art. 555. A possessor may lose his possession: NOTE: In this case, both possession de facto and de jure are
lost and no action for recovery will be allowed
(1) By the abandonment of the thing;
(2) By an assignment made to another either by onerous or 3.DESTRUCTION or TOTAL LOSS of the thing or because it
gratuitous title; goes out of commerce.
(3) By the destruction or total loss of the thing, or because it
goes out of commerce; Q: When is a property considered lost?
(4) By the possession of another, subject to the provisions of
Article 537, if the new possession has lasted longer than one A: A property is considered lost when it is destroyed
year. But the real right of possession is not lost till after the physically such as when it got totally burned or dismantled to
lapse of ten years. (460a) the extent that it becomes useless and unserviceable.
Q: A possessor may lose his possession in what instances? a. Thing perishes

b. Goes out of commerce
A: c. Disappears is such a way that its existence is
1.by ABANDONMENT of the thing -voluntary renunciation of unknown or if known, cannot be recovered.
a property or right by its owner or possessor. It is the
intention to lose the thing. Q: When is there total loss?
Q: May real property be abandoned? A: Although the property remains physically intact, it cannot
be recovered anymore.
A: Only personal property may be abandoned, does not apply
to land . Q: What are the 2 kinds of loss?
Q: When can you say that a property has been abandoned? A:

NOTES ON PROPERTY
1. Physical loss - existence is unknown or cannot be
recovered Q: The general rule is possession of movables in good faith is
2. Juridical loss - goes out of commerce or expropriated equivalent to title. What are the requisites for this rule to
by the government apply?
4. POSSESION OF ANOTHER- Possession is lost when

prescription has set in A:
1. Movable property is acquired in good faith
NOTE: If possession is only out of mere tolerance by the 2. Possession must be in the concept of an owner
owner, the same is not a valid mode of acquiring possession.
It cannot amount to loss of possession. Principle of irrenvidicability
Art. 556. The possession of movables is not deemed lost so Q: What is the principle of irrenvidicability?
long as they remain under the control of the possessor, even
though for the time being he may not know their A: It contemplates of a situation where personal property is
whereabouts. (461) in the possession of one who acquires and holds in good
faith. The true owner cannot recover possession of movable
Q: What does the law contemplate by the word “control”? acquired in good faith is equivalent to title.
A: Juridical control or right that the movable remains in the Q: What is the exception to this rule?
possessor’s patrimony
A: Except when owner lost it or illegally deprives
Art. 557. The possession of immovables and of real rights is
not deemed lost, or transferred for purposes of prescription Q: What is then the duty of the finder?
to the prejudice of third persons, except in accordance with
the provisions of the Mortgage Law and the Land A:
Registration laws. (462a) a. If owner known, the finder must return
b. If unknown, the finder must deposit the movable with
Art. 558. Acts relating to possession, executed or agreed to the mayor of the city or municipality where the thing was
by one who possesses a thing belonging to another as a found. The mayor is bound to make a public
mere holder to enjoy or keep it, in any character, do not announcement for 2 consecutive weeks. Where no
bind or prejudice the owner, unless he gave said holder owner appears after 6months, the thing will be given to
express authority to do such acts, or ratifies them the finder (if owner claims, reward of 1/10 of the sum or
subsequently. (463) price of thing found must be given to the finder).
Possessor of a property belonging to another and who holds Q: What if the finder does not deposit the thing?
it merely for the purpose of enjoying or keeping it, had placed
the property into the possession of another in any character, A: If finder or third person who acquired the thing
the owner is not bound thereby. subsequent to finder does not deposit the thing, he may be
penalized for the crime of theft. In such case, owner may
Owner can recover possession from subsequent possessor recover without paying indemnity.
except if the owner expressly authorized the holder to do so
or if he ratifies the acts of the holder. NOTE: General Rule: Owner may recover the thing without
paying indemnity
Art. 559. The possession of movable property acquired in Exception: Possessor acquired the property through public
good faith is equivalent to a title. Nevertheless, one who has sale (owner must reimburse the price paid)
lost any movable or has been unlawfully deprived thereof
may recover it from the person in possession of the same.
Q: The owner who lost the thing or was unlawfully deprived
If the possessor of a movable lost or which the owner has cannot recover in what instances?
been unlawfully deprived, has acquired it in good faith at a
public sale, the owner cannot obtain its return without A:
reimbursing the price paid therefor. (464a) 1. Possessor acquired the thing at the merchant’s store or
fairs or markets
Q: What is Title? 2. Possessor acquired the thing by sale under statutory
power of sale or under the order of a court of competent
A: Juridical act which transfers ownership, not a document jurisdiction

NOTES ON PROPERTY
3. Possessor is a holder in due course of a negotiable Q: The general rule is that one who recovers possession
document of title to goods or owner is barred by the unjustly lost, shall be deemed for all purposes which may
principle of negotiable instruments redound to his benefit, to have enjoyed it without
4. Owner is barred by his own acts or neglect from denying interruption. What are the requisites for this principle to
the seller’s title apply?
5. Prescription
A:
Q: What is a public sale? 1. Possession was unlawfully or unjustly lost
2. Possessor was able to recover his possession by lawful
A: Sale where a public notice is duly publicized in a means
newspaper of general circulation informing the public about 3. Uninterrupted possession shall be beneficial to him
the sale of thing and where anybody has the right to make a
bid or an offer to buy.
Art. 560. Wild animals are possessed only while they are Title VI. - USUFRUCT
under one's control; domesticated or tamed animals are
considered domestic or tame if they retain the habit of CHAPTER 1
returning to the premises of the possessor. (465) USUFRUCT IN GENERAL
Kinds of Animals Art. 562. Usufruct gives a right to enjoy the property of
another with the obligation of preserving its form and
Q: What are the kinds of animals? substance, unless the title constituting it or the law
otherwise provides. (467)
A:
1. Wild – characterized by natural freedom. They are Usufruct in General
possessed only while they are under one’s control. Once
natural freedom is regained, they immediately regain Q: What is usufruct?
their status of res nullius and may be acquired through
occupation. A: It is the right of a person (usufructuary), to enjoy the
property of another (owner) with obligation to returning it at
2. Domesticated or tamed – formerly wild but which have the designated time and preserving its form and substance.
been subdued and retained the habit of returning to the
premises of the possessor or owner. Once they lose the It is a real right vested in a person called a usufructuary,
habit of returning to the premises of the possessor, they whereby he has the right to enjoy the property, including the
become res nullius. 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
days counted from occupation by another to reclaim the Extent of usufruct
animal/s.
It is the right to enjoy the property of another temporarily,
3. Domestic or tame – born or reared under the control and including both the jus utendi (right to use) and the jus
care of man. Owner can recover them from present fruendi (right to the fruits).
possessors without need of indemnity. They are not
subject to occupation unless there has been Requisites of a usfruct
abandonment but may be acquired through acquisitive
prescription (4years if good faith). Q: What are the requisites of a usufruct?
Note that in case of domestic animals, WHEN HABIT IS LOST, A:

ONLY POSSESSION iS LOST and NOT OWNESHIP.
1. Essential- right to enjoy the property of another; and
Art. 561. One who recovers, according to law, possession 2. Accidental- obligation of preserving the form and
unjustly lost, shall be deemed for all purposes which may substance of such property. It is accidental because
redound to his benefit, to have enjoyed it without the title constituting the usufruct or the law may
interruption. (466) provide otherwise, as in the case of abnormal
usufruct.

NOTES ON PROPERTY
3. Prevent impairment
Essential characteristics
Accidental characteristics
Q: What are the requisites of a usufruct?
Q: What are the accidental characteristics of usufruct?
A:
a. Real right; A: Those which may be present or absent depending on the
b. Temporary in nature; stipulation of the parties. Example: Whether the usufruct is
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

NOTES ON PROPERTY
(jus diponendi) and the right to vindicate (jus vindicandi). On provided.
the other hand, usufruct is limited to jus utendi and jus
fruendi. Usufruct and Lease
Q: Distinguish usufruct from the right to collect? USUFRUCT LEASE

Creator Constituted only It need not be
A: A usufruct granting the right to collect would entail that by owner or created by the
what the usufructuary may collect belongs to him but the authorized owner;
usufructuary does not own the property. The mere right to representative;
collect may or may not mean that the collector owns what
Nature of right Usufrcut is always Lease is generally
was collected.
a real right; a personal right. It
is real only when it
Usufruct and Easement
is over a real
property and the
USUFRUCT EASEMENT same is registered
Application Applies both real Applies only to or when the lease
and personal; real property; is more than 1
Extent All uses and fruits Limited to a year.
can be enjoyed; particular use; Manner of May be created by Generally only by
Constitution It may be Can be consituted creation law, contracts, last contracts and by
constituted on the on a land held in will and way of exception
land burdened by usufruct; testament, or by law as in the
easement but it prescription; case of an implied
can’t be new lease or tacita
constituted in an reconduction (Art.
easement; 1670) and Forced
Extinguishement Usually Not extinguished lease (Art. 448);
extinguished by by the death of Execution of Usufructuary has Lessee has no duty
the death of the the owner of the repairs the duty to make to pay for repairs
usufructuary or 50 dominant estate. ordinary repairs; except urgent
years if juridical repairs;
person; Payment of taxes Usufruct pays for Lessee does not
annual charges, pay the taxes on
Usufruct and commodatum taxes, and liens on the property
the fruits of the unless agreed
USUFRUCT COMMODATUM property during upon.
Cause May be gratuitous Always gratuitous; the lifetime of the
or onerous; usufruct.
Application Applies both to Applies only to
real and personal personal; Art. 563. Usufruct is constituted by law, by the will of
property; private persons expressed in acts inter vivos or in a last will
Nature Always a real Merely a personal and testament, and by prescription. (468)
right; right;
Creation Must always be Bailor need not be Creation of Usufruct
constituted by the owner as long as
owner; he has the legal Q: What are the different classifications of usufruct as to
right to possess creation?
the object;
Extent Can be constituted Only non- A:
on consumables consumables
and non- except when it is 1. Legal usufruct- created by law;
consumables; only for exhibition.
Rights Usufructuary has Bailee has no As in Articles 1189 and 1190 of the NCC where there is a
rights over the rights over the suspensive condition or a resolutory condition over an
fruits. fruits unless obligation and there are improvements on the object
otherwise courtesy of the debtor, he will have the rights of a
usufructuary.
NOTES ON PROPERTY
Art. 869- applies where the testator leaves to a person the
2. Conventional- will of the parties; and whole or par of the inheritance and to another the usufruct. If
he gives the usufruct to various persons successively Art. 863
a. By acts inter vivos such as contracts; will apply.
b. In a last will and testament (mortis causa);
4. As to effectivity or extinguishment or term or
3. Mixed usufruct or prescription- acquired by a third condition;
person thru continuous use of usufruct for period
required by law. a. Pure-if there is no term or condition; and
b. With a term- if there is a period which may be either
Art. 564. Usufruct may be constituted on the whole or a part suspensive (from a certain day) or resolutory (up to a
of the fruits of the thing, in favor of one more persons, certain day).
simultaneously or successively, and in every case from or to c. Conditional- if it is subject to a condition which may
a certain day, purely or conditionally. It may also be be either suspensive (from the beginning of a certain
constituted on a right, provided it is not strictly personal or event) or resolutory (until the happpening of a
intransmissible. (469) certain event).
Kinds of usufruct 5. As to subject matter;
Q: What are the different kinds of usufruct? a. Over things-if it involves tangible property;
b. Over rights- if it involves intangible property as rights
A: are, but the rights must not be strictly personal or
intransmissible; thus the right to receive support
1. As to comprehensiveness over the fruits; cannot be the subject matter of usufruct.
a. Total-if it covers all the fruits derived; and A usufruct constituted over a right is of the same nature as
b. Partial-if it covers only particular fruits generated. the very right burdened by it.
Example: In a coconut planattion only the leaves are
covered to be used in the manufucture of brook 6. As to preservation of the substance and form of the
sticks not including the fruits. object; and
2. As to number of beneficiaries; a. Normal- obligation to preserve exists;

b. Abnormal-no obligation to preserve because of the
a. Simple- one usufructuary; and nature of the thing.
b. Multiple-if there are several usufructuaries which
may be: 7. As to its extent over the object.
3. As to the time of enjoymnet of the usufruct; a. Universal; and

b. Particular
a. Simultaneously-at the same time; and
b. Successive- one after another.
Q: Can the naked owner dispose of the property held under
In case usufructaury is created by donation, Art. 756 should usufruct?
be applied:
A: Yes, provided that there is the consent of the naked owner
Art. 756-All donees must be alive or at least be conceived at because the stipulation in the contract prevails.
the time of the perfection of the donation.
Q: What form must be followed in constituting a usufruct?
If the usufruct is testamentary Rules on Fidei Commisary
substitution under Art. 863 and Art. 869 should be applied: A:
Art. 863- Both transferor and transferee must be alive or at GR: No form is required. An oral usufruct may even be
least be conceived at the time of the death of the testator. constituted.
There is only one degree of relationship between the XPN:

transferor and the transferee.

NOTES ON PROPERTY
1. A usufruct over real property must be registered to With respect to hidden treasure which may be found on the
bind their persons; land or tenement, he shall be considered a stranger. (471)
2. If usufruct is created by sale of for any valuable
consideration, the Statutes of Fraud always applies Usufructuary is entitled or has a right to all kinds of fruits:
in case of Real property is involved. If personal natural, industrial, civil. Yet, he cannot extract from the
property is involved the Statute of fraud applies property anything which is not classified as fruits under the
where the value is P500 or higher and in case the law.
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.
Art. 565. The rights and obligations of the usufructuary shall

be those provided in the title constituting the usufruct; in HIDDEN TREASURE
default of such title, or in case it is deficient, the provisions
contained in the two following Chapters shall be observed. GR: In cases of hidden treasure, he is considered as a
(470) stranger.
Q: What primarily governs the rights and obligations of the XPN: If he is the finder.
usufructuary?
DIVIDENDS
A: The title constituting the usufruct, in default the provisions
of the NCC. Whether in cash or stock are considered civil fruits which
belong to the usufructuary, taking into consideration that a
Q: What if there is conflict between what is provided in the stock dividend and cash dividend can only be declared out of
will and the codal provisions regarding the right granted to a the profits of a corporation.
usufruct?
Q: If dividends are declared from “capital stocks” are they
A: The former will prevail unless the disposition contradicts fruits that are covered by a usufruct?
the mandatory provisions of the NCC.
A: No, it is prohibited by law to declare dividends from capital
The rights and obligations are those provided in contract or stocks. Besides, such declaration is not an earning because it
provision of the will. is not declared out of the profits of a corporation.
In cases of hidden treasure, the usufructuary is considered as Art. 567. Natural or industrial fruits growing at the time the
usufruct begins, belong to the usufructuary.
a stranger. The treasure therefore is not considered as a fruit.
Hence, it is the naked owner who is entitled to the share. If Those growing at the time the usufruct terminates, belong
the usufructuary found it, he shall be entitled to ½ share (as a to the owner.
stranger). However, if a third person found it, the naked
owner is entitled to ½ share. 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
CHAPTER 2
cultivation, for seed, and other similar expenses incurred by
RIGHTS OF THE USUFRUCTUARY
the usufructuary.
Q: In general, what are the rights of a usufructuary?
The provisions of this article shall not prejudice the rights of
third persons, acquired either at the beginning or at the
A:
termination of the usufruct. (472)
1. Rights over the fruits;
Rule on ownership of natural and industrial fruits
2. Rights of possession and enjoyment of the property;
3. Lease of the property;
Generally, whateevr is gathered or collected belongs to the
4. Sale or alteration of usufructuary rights.
usufructuary during the usufruct.
Art. 566. The usufructuary shall be entitled to all the
natural, industrial and civil fruits of the property in usufruct.
NOTES ON PROPERTY
Rights of usufructuary to pending natural and industrial
fruits A: If the period of lease is longer than the period of usufruct,
lease will terminate upon termination of usufruct.
1. Fruits growing at the beginning of usufruct- belong to Accordingly, the usufructuary cannot lease or alienate
the usufructuary, who is not bound to refund to the beyond such period. Also, usufructuary has the choice as to
owner the expenses of cultivation and production as the who will rent the property, consent is only required if it is
owner has already taken into consideration value of longer than the usufruct.
fruits in fixing the price/ cause for the usufruct.
Note: If the period of lease is longer than the period of
2. Fruits growing to the termination of usufruct- belong to usufruct, the usufructuary of his heirs and successors shall
the owner but he is bound to reimburse the usufructuary receive only the rents up to the end of the usufruct while the
the ordinary cultivation expenses (including those rentals for the rest of the duration of the lease shall pertain
pertaining to seeds) (Art. 545) out of the fruits received to the owner.
(Art. 443). In other words, the reimbursement shall be
taken from the proceeds of the growing fruits. Art. 569. Civil fruits are deemed to accrue daily, and belong
to the usufructuary in proportion to the time the usufruct
Note: If near the time of termination fruits are already may last. (474)
mature and ready for gathering, but were not gathered due
to the malice and bad faith of the owner before the usufruct Q: State the rule on civil fruits.
end, the fruits nevertheless shall pertain to the usufructuary
by applying the general principles of fairness. A: Civil fruits are deemed to accrue daily; they belong to the
usufructuary in proportion to the time the usufruct may last.
Right of Innocent Third persons
Art. 570. Whenever a usufruct is constituted on the right to
Thus, thus Article shall not prejudice the rights of third receive a rent or periodical pension, whether in money or in
persons, acquired either at the beginning or at the fruits, or in the interest on bonds or securities payable to
termination of the usufruct. bearer, each payment due shall be considered as the
proceeds or fruits of such right.
If trees, plants, or crops had been planted by innocent third
person or possessor in good faith, the expenses and charges Whenever it consists in the enjoyment of benefits accruing
incurred thereof shall be pro-rated between the planter and from a participation in any industrial or commercial
the usufructuary (Art. 545, Dean Pineda). However, it seems enterprise, the date of the distribution of which is not fixed,
that this article should apply (Art. 443, Sen. Tolentino). such benefits shall have the same character.
Note: According to Judge Quiambao, Art. 545 is used to In either case they shall be distributed as civil fruits, and
determine who are entitled to the fruits and Art 443 is use to shall be applied in the manner prescribed in the preceding
determine who should be obliged to pay the charges. article. (475)
Art. 568. If the usufructuary has leased the lands or Usufruct on the right to receive rents or periodical pension
tenements given in usufruct, and the usufruct should expire
before the termination of the lease, he or his heirs and Each payment shall be considered as the proceeds or the
successors shall receive only the proportionate share of the fruits of such right.
rent that must be paid by the lessee. (473)
This rule applies whether payment is in money, in fruits, in
Q: May the usufructuary lease the property held by him? interest on bonds or securities payable to bearer.
A: Usufructuary may lease only if the title constituting the Usufruct in the enjoyment of benefits accruing from a
usufruct does not prohibit the usufructuary from leasing. participation in any industrial or commercial enterprise
If he leases the property he has the: Each payment shall be considered as the proceeds or the
fruits of such right.
a. Right to choose the tenant; and
b. Right to eject the tenant if he violates the lease The benefits shall be considered as civil fruits and shall be
contract. distributed.
Q: What if the period of lease I longer than the period of A problem by Justice Paras
usufruct?

NOTES ON PROPERTY
A gave B in usufruct the profits of a certain factory for 10
years, all profits during that time must go to B. Suppose, Q: What are the limitations to usufructuary rights?
however B died at the end of 5 years, and the following were
the profits of the factory: A:
1. Cannot sell, pledge or mortgage because he is not the
nd
2 year-30 M owner (the thing/ prop itself)
rd
3 year-50 M 2. Cannot sell future crops (growing crops at the
th
8 year-10 M
th termination of the usufruct belong to the owner)
10 year- 20 M
3. Cannot, without consent of owner, lease the thing for a
Q: How should the profits be divided? period longer than the term of usufruct
A: It is unfair to give the heir of the usufructuary 80 M for the NOTE: The usufructuary may possess and enjoy the thing in
nd rd
2 and 3 year profits and only 30 million to the naked usufruct, either
owner. If this were so, we would be applying the rule for
industrial or natural fruits, not civil fruits. It is indeed unfair
a. Personally, or
because business is expected to have ist ups and downs.
Thus, considering that the usufruct was supposed to last for b. Through another, unless there is a contrary
10 years (though it lasted only for 5 years), it is fairer to give stipulation.
half of the total profits to the heirs of the usufructaury and to
the naked owner. Q: Who should bring action against a usurper, the naked
owner or the usufructuary?
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
A: Naked owner can bring action against usurper of the
5 years.
property; it is him who has the cause of action. The
The rules are subject to stipulation of the parties. usufructuary can only do so if authorized.
Art. 571. The usufructuary shall have the right to enjoy any Aspects of usufruct
increase which the thing in usufruct may acquire through
accession, the servitudes established in its favor, and, in
Q: What are the 2 aspects of usufruct?
general, all the benefits inherent therein. (479)
Extensions of the property in usufruct A:

1. With respect to the thing in usufruct- He may lease it
The right of the usufructuary over the property extends to (Art. 568) even without the owner’s consent (Art. 580)
the increase which the thing in usufruct may acquire through but not being the owner; he cannot alinate, pledge or
accession, in the absence of contrary stipulation. mortgage the thing itself.
2. With respect to the right of usufruct- he, being the owner
Note however that the naked owner still owns the accession of the right itself, may alienate, pledge or mortgage it,
as well as the servitudes established in favor of the property even by gratuitous title (Art. 572).
when it is the dominant estate like easement of a right of
way. Q: How should the lease last?
GR: Usufructuary shall enjoy all benefits inherent in the A: General Rule: the lease executed by the usufructuary
property as the essence of usufruct is the full enjoyment of should terminate at the end of the usufruct or earlier.
jus fruendi (fruits), jus utendi (use).
Except: in case of rural lands where the lease continues for
Art. 572. The usufructuary may personally enjoy the thing in the remainder of the Agricultural year.
usufruct, lease it to another, or alienate his right of usufruct,
even by a gratuitous title; but all the contracts he may enter Q: What happens when the period is beyond the period of
into as such usufructuary shall terminate upon the usufruct?
expiration of the usufruct, saving leases of rural lands, which
shall be considered as subsisting during the agricultural A: The usufructuary may enter into a contract where the
year. (480) period of lease is beyond the period. However, once the
usufruct terminates, the lease should terminate too. At the
Limitations to usufructuary rights option of the owner.

NOTES ON PROPERTY
a. He is not obliged to return them at the termination
Q: Can you compel the naked owner to respect the lease except in their condition at the time;
upon termination? b. The usufructuary is not responsible for deterioration due
to wear and tear nor is he required to make any repairs
A: No, however, if the lease was registered or annotated in to restore it;
the title of the prperty this makes the lease a real right. The c. He is liable for damage suffered by the thing by reason of
owner of the property must respect the right. The rent after his fraud or negligence although such liability may be set-
the termination accrues to the owner. off against the improvements he may have made on the
property;
Alienation of rights of usufructuary d. He does not answer for the deterioration due to
fortuitous event;
Q: What is the nature of the usufructuary rights?
NOTE: But if deterioration is due to fraud or negligence, the
A: It is treated as property rights. Separate from the property usfructuary is liable.
to which it is attached. Absolutely owned by the usufruct may
dispose encumber the usufruct so long as it is not on the Art. 574. Whenever the usufruct includes things which
property itself. cannot be used without being consumed, the usufructuary
shall have the right to make use of them under the
Q: What happens when the property itself is sold? obligation of paying their appraised value at the termination
of the usufruct, if they were appraised when delivered. In
A: Sale is void since the seller is not the owner. Since there is case they were not appraised, he shall have the right to
a violation of the usufruct any securities may be cancelled return at the same quantity and quality, or pay their current
absent any contrary stipulation. price at the time the usufruct ceases. (482)
NOTE: There should be a stipulation of the parties allowing Q: What is a consumable property?
the usufructuary to alienate such property then the same is
valid. A: Those which could not be enjoyed without being
consumed, hence could not be returned because form and
Q: Can you constitute a usufruct on an encumbered or substance are not preserved.
mortgaged land?
The usufructuary must pay appraised vaule if they were
A: Yes, this is because the mortgage remains inactive until the appraised when delivered.
bebt is not paid and the mortgage is not for the purpose of
limiting the use of the fruits. If there is no appraisal:
a. he must return the same quantity and quality or
NOTE: Alienation of the usufructuary rights does not involve b. pay current price.
the property itself. When the usufruct terminates, the
transferee has no more right to the property. In addition, This is considered as Imperfect/ Abnormal Usufruct.
usufructuary may also be liable to the naked owner for the Quasi-usufruct is akin to a mutuum or simple loan.
damage caused by the transferee (Art. 590).
Q: Can money be the subject of usufruct?
Art. 573. Whenever the usufruct includes things which,
without being consumed, gradually deteriorate through A: Yes, money can be the subject. The subject is equivalent
wear and tear, the usufructuary shall have the right to make sum or value not the thing itself.
use thereof in accordance with the purpose for which they
are intended, and shall not be obliged to return them at the Q: What will govern the parties?
termination of the usufruct except in their condition at that
time; but he shall be obliged to indemnify the owner for any A:
deterioration they may have suffered by reason of his fraud 1. Title governing it/ stipulations
or negligence. (481)
2. Provision of NCC
Usufruct over non-consumable things which gradually
deteriorate Q: In case of conflict, what shall govern?
The usufruct has the right to use in accordance withb the A: In case of conflict, the stipulations will prevail, the
purpose they intended. provision will only apply in default of provision or stipulations
are contrary to law.

NOTES ON PROPERTY
it be to restore or improve some of the things in usufruct,
Art. 575. The usufructuary of fruit-bearing trees and shrubs and in such case shall first inform the owner of the necessity
may make use of the dead trunks, and even of those cut off for the work. (485)
or uprooted by accident, under the obligation to replace
them with new plants. (483a) Inoperative Usufruct
Special usufruct on fruit-bearing trees and shrub Because of thee Regalian Doctrine, only the State may
constitute a usufruct over the woodlands, provided that there
The usufructuary may use dead trunks and those cut-off or was a law allowing such usufruct (Declaration of re-
uprooted by accident, which include force majeure and fo classification).
Because of the obligation to preserve, the usufructuary A timber license is generally required if one desires to gather
cannot cut off the trees. However, if the purpose of the forest products.
usufruct as appearing in the title establishing it is precisely to
make use of its branches and trunks of the trees for special Art. 578. The usufructuary of an action to recover real
purposes, he may cut them off subject to the obligation of property or a real right, or any movable property, has the
replacing them with young trees or new plants. right to bring the action and to oblige the owner thereof to
give him the authority for this purpose and to furnish him
This article cannot apply when the trees are not fruit bearing whatever proof he may have. If in consequence of the
and if the object of the usufruct is not limited to the fruits of enforcement of the action he acquires the thing claimed, the
such trees. usufruct shall be limited to the fruits, the dominion
remaining with the owner. (486)
Q: What are shrubs?
Impractical Usufruct
A: They are woody perennial plants smaller than trees usually
having permanent stems branching from the ground. The Philippine legal system is replete with other modes of
prosecuting cases in behalf of the real party in interest.
Art. 576. If in consequence of a calamity or extraordinary
event, the trees or shrubs shall have disappeared in such If the usufructuary recovered the property he does not
considerable number that it would not be possible or it become the owner thereof. Ownership still belongs to the
would be too burdensome to replace them, the naked owner. Usufruct regains only his usufruct over the
usufructuary may leave the dead, fallen or uprooted trunks property. The usufructuary therefore is entitled to fruits and
at the disposal of the owner, and demand that the latter usufruct over the property.
remove them and clear the land. (484a)
The action may be prosecuted in the name of the
If the object of the replacemet is only slightly burdensome, usufructuary because he is a proper party in interest in case
the usufructuary is obliged to make the replacement. the action is for ejectment as the only issue in such case is
possession. There no need to include the name of the naked
Art. 577. The usufructuary of woodland may enjoy all the owner. Nonetheless, in all other cases, he may file in the
benefits which it may produce according to its nature. name of naked owner or usufructuary. Hence, an action to
recover land may be filed by usufructuary with authority of
If the woodland is a copse or consists of timber for building, naked owner
the usufructuary may do such ordinary cutting or felling as
the owner was in the habit of doing, and in default of this, Usufruct of an action to recover property
he may do so in accordance with the custom of the place, as
to the manner, amount and season. The usufructuary has the right to bring the action and oblige
the owner to give him authority to file action for the purpose
In any case the felling or cutting of trees shall be made in and furnish him proof (Special power of attorney).
such manner as not to prejudice the preservation of the
land. Art. 579. The usufructuary may make on the property held
in usufruct such useful improvements or expenses for mere
In nurseries, the usufructuary may make the necessary pleasure as he may deem proper, provided he does not alter
thinnings in order that the remaining trees may properly its form or substance; but he shall have no right to be
grow. indemnified therefor. He may, however, remove such
improvements, should it be possible to do so without
With the exception of the provisions of the preceding damage to the property. (487)
paragraphs, the usufructuary cannot cut down trees unless

NOTES ON PROPERTY
Art. 580. The usufructuary may set off the improvements he A:
may have made on the property against any damage to the 1. Improvements were made;
same. (488) 2. Intention to remove; and
3. Damage to property
Rules concerning constructions and improvement
1. Unless there is an express prohibition, the usufructuary Q: What if the damage exceeds the value of the
may construct and make improvements on the property improvements?
as he may deem proper.
2. Limitation: provided he does not alter its form and A: In such case, the usufructuary shall be liable for the
substance; difference as indemnity.
3. Removal: usufructuary may generally remove provided
no injury is made on the principal even against the will of But if the improvements are more than the damage, there is
the naked owner. If he has chosen not to remove he no refund as to the excess.
cannot be compelled to remove them; and
4. Indemnity: No right to be indemnified if the Damage to property
improvements cannot be removed. He may however set-
off the value of the improvements against the amount of If Value of improvement is greater than damage caused, the
damage he had caused to the property. excess will not be refunded to the usufructuary, in the
absence of contrary stipulation (owner not required to pay
Improvements may be registered for the protection of the the amount). There is no indemnity for improvements.
usufructuary
If the improvements could be removed without damage to
If the right of the usufructuary to remove improvements is property, parties may agree to settle the difference.
not registered, an innocent purchaser for value of the
property is not bound to respect the right. 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
proceedings of the land in usufruct and not independently. Formula
USEFUL OF LUXURIOUS IMPROVEMENTS 1. Damage>value of the improvements= usufructuary

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

NOTES ON PROPERTY
of Art. 590. But if 2. collection of fruits or interests
he refuses to b. If property has been partitioned, the
remove, he cannot usufructuary shall continue on that part of the
be compelled. property which was allotted to the co-owner
who constituted the usufruct
Q: Who has the option to remove or set-off? c. Does not need the consent of other co-owners
when he intends to put up usufruct on his share
A: It belongs to the usufructuary
Q: May a usufructuary participate in partition of property?
Art. 581. The owner of property the usufruct of which is held
by another, may alienate it, but he cannot alter its form or A: Usufructuary has no right to participate in the partition of
substance, or do anything thereon which may be prejudicial property owned in common, he is not creditor or assignee
to the usufructuary. (489)
Q: May a usufructuary sell the property?
Q: The rule provides that the naked owner is not precluded
from selling the property because right to dispose rests in A: No, the usufructuary has no authority to sell or alienate
any real right over the undivided property because such is an
him. However, there are restrictions, what are these?
exercise of act of ownership, unless authorized by all the co-
owners.
A:
1. Cannot alter or change the form or substance Q: Is the use of a co-owned property subject of a usufruct
2. Do anything which will prejudice the usufructuary exclusively reserved to the usufructuary where the usufruct
is constituted by only one of the co-owners?
When usufruct binds third persons
A: No, the usufructuary cannot exclude the co-owners, except
Q: When will the usufruct bind third persons? the co-owner who gave him the usufruct. The usufruct also
covers only the portio of the fruits accruing to the co-owner
A: who constituted the usufruct.
1. When duly registered on the title or is known to a third
person, the latter is put to notice and he is bound to Classification of rights of the usufructuary
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
usufruct imposed and placed as burdens on devises or a. To receive the a. To alienate or a. To be reimbursed
legacies must be respected until they are legally fruits of the mortgage the for indispensable
extinguished. property in right of usufruct extra-ordinary
usufruct and half except parental repairs made by
of the hidden usufruct him in an amount
Q: May the naked owner construct anything on the property treasure he b. In a usufruct to equal to the
subject of usufruct? accidentally finds recover property increase in value
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
works, make new improvements or plantings provided that the thing in owner thereof to reason of such
the substance of the property is not altered and the usufruct may give him the repairs
usufructuary is not prejudiced. acquire thru proper authority b. To be reimbursed
succession and the for taxes on the
c. To personally necessary proof capital advanced
Art. 582. The usufructuary of a part of a thing held in enjoy the thing in c. In a usufruct of by him
common shall exercise all the rights pertaining to the owner usufruct or lease part of a c. To be
thereof with respect to the administration and the it to another common indemnified for
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
cease by reason of the division of the thing held in common, usufruct such rights pertaining naked owner
the usufruct of the part allotted to the co-owner shall improvements or to the co-owner
belong to the usufructuary. (490) expenses he may with respect to
deem proper and the
to remove the administration
A Co- owner usufructs his property: improvements and to the
provided no collection of
a. Will assume all rights of said owner with respect damage is caused fruits or interests
to the property from the
to:
e. To set-off the property
1. administration and improvements he

NOTES ON PROPERTY
may have made b. Abnormal usufruct where the appraisal will be
on the property important for determining the liability of the
against any
damaage to the usufructuary
same (Art.580)
f. To retain the Q: What is the requirement if the property is movable?
thing until he is
reimbursed for
advances for A: An obligation on the part of the usufructuary to make an
extra-ordinary appraisal of the value of the movables
expenses and
taxes on the Q: How about for immovables?
capital
A: To make a technical description of its condition and an

Classification of the obligations of the usufructuary
appraisal of the movables therein.
Before the During the Upon termination
Inventory
usufruct usufruct of usufruct
commences
Q: What are the requirements for the inventory?
Arts. 583-587 Arts. 588-602 Arts. 603-612
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
CHAPTER 3
OBLIGATIONS OF THE USUFRUCTUARY Q: Who shall shoulder expenses for preparation of the
inventory?
Art. 583. The usufructuary, before entering upon the
enjoyment of the property, is obliged: A: Expenses for preparation of the inventory is borne by
usufructuary, but may agree on some other arrangement
(1) To make, after notice to the owner or his legitimate
representative, an inventory of all the property, which shall Q: When is Inventory is not required:
contain an appraisal of the movables and a description of
the condition of the immovables; A: Inventory is not allowed when:
(2) To give security, binding himself to fulfill the obligations 1. Waived
imposed upon him in accordance with this Chapter. (491) 2. No one will be injured
3. Usufruct over rights
Q: What are the obligations of the usufructuary? 4. Agreement of both parties
A: Q: What is the effect of the absence of owner during the

1. Inventory of all the property (movables and immovables) inventory?
containing their appraised value and description of
condition immovables (so that the form of which it A: Absence of owner during inventory will not invalidate the
should be returned is determined) usufruct.
2. Give security as an assurance that he will fulfill all his
obligation as usufructuary Q: What if there are mistakes in inventory and owner is
absent, is it a waiver?
NOTE: The requirements are not conditions precedent, but is
necessary before the usufructuary enters upon the A: No, you can still make the corrections, but must prove that
possession and enjoyment of property there is error, not refuted from making corrections
Q: What is the purpose of these requirements? Q: What should be the form of the inventory?
A: To ensure the return of the property in the condition that A: No particular form of inventory is provided for by law,
it was given as usufruct, except in cases of: except when real property wherein the inventory must be in
a. Quasi-usufruct public instrument.

NOTES ON PROPERTY
converted into registered certificates or deposited in a
Q: What is the effect of failure to make inventory? bank or public institution and that the capital or sums in
cash and proceeds of movable property be invested in
A: Failure to make inventory will create the presumption that safe securities
the usufruct is receiving the thing in good condition. 3. Usufructuary is entitled to legal interests (or net profits)
on the proceeds of the sale of movables and on the
Security proceeds of property placed under the management of
naked owner
Q: What can become a security? 4. Naked owner may retain the property in usufruct if he so
desired with the obligation to turn over to the
A: Pledge, mortgage of property; personal, surety bond, cash usufructuary the income or fruits of property after
money deducting the expenses of administration
5. Usufructuary cannot collect credits that had matured
NOTE: The requirements are not conditions precedent, but is 6. Cannot enter into the possession of property and cannot
necessary before the usufructuary enters upon the manage the property
possession and enjoyment of property-Sanchez Roman. 7. Usufruct is not extinguished by failure to give security. In
the meantime, he cannot enter into the possession of
But according to Manresa, the usufruct is extinguished by property in usufruct
failure to give security.
Art. 584. The provisions of No. 2 of the preceding article
Q: When is the giving of security not required? shall not apply to the donor who has reserved the usufruct
of the property donated, or to the parents who are
A: usufructuaries of their children's property, except when the
1. Express stipulation that no security will be required parents contract a second marriage. (492a)
2. Naked owner, after establishment of usufruct which
requires giving of security waives such requirement When donor reserved to himself the usufruct of the property
3. Nobody will be injured for lack of security donated, it is an act of ingratitude for the donee to require
4. Donor has reserved to himself the usufructuary of the donor to put up a security bond.
property donated it is an act of ingratitude for the done
to require the donor to put up a security of bond Art. 585. The usufructuary, whatever may be the title of the
5. In case of parental usufructuary usufruct, may be excused from the obligation of making an
6. Usufruct is based on caucion juratoria inventory or of giving security, when no one will be injured
thereby. (493)
Q: What is the purpose of security?
Art. 586. Should the usufructuary fail to give security in the
A: To ensure faithful compliance. cases in which he is bound to give it, the owner may
demand that the immovables be placed under
Q: What should be the form of security? administration, that the movables be sold, that the public
bonds, instruments of credit payable to order or to bearer
A: No form is required by law, as long as it is sufficient. be converted into registered certificates or deposited in a
bank or public institution, and that the capital or sums in
Parental usufruct cash and the proceeds of the sale of the movable property
be invested in safe securities.
Parental usufruct still exists but only apples to enjoyment and
use of minor child’s property. The interest on the proceeds of the sale of the movables
and that on public securities and bonds, and the proceeds of
But for income in fruits, apply rule in guardianship Art 225, the property placed under administration, shall belong to
226 FC in relation to Art 235. the usufructuary.
Q: What are the consequences of failure to give security Furthermore, the owner may, if he so prefers, until the
when it is required? usufructuary gives security or is excused from so doing,
retain in his possession the property in usufruct as
A: administrator, subject to the obligation to deliver to the
1. Naked owner may demand that immovables be placed usufructuary the net proceeds thereof, after deducting the
under his administration sums which may be agreed upon or judicially allowed him
2. Demand that the movables be sold ; public bond, for such administration. (494)
instruments of credit payable to order or to bearer be

NOTES ON PROPERTY
Consequence of failure to give security when it is required
A:
Q: What is the effect of failure to give security when it is 1. Proper court petition
required? 2. Necessity for the delivery of the furniture, implements,
tools or house included in the usufruct
A: The owner may demand that the: 3. Approval of the court
a. Immovables be placed under his administration 4. Sworn promise
b. Movables be sold 5. He cannot alienate or lease the property for this will
c. Public bonds, instruments of creditt payable to order mean that he does not need them.
or to bearer be converted into registered certificates
or deposited in a bank or public institution To enter into the possession of the property, usufructuary
d. Capital or sums in cash and the proceeds of the sale must file a petition in court seeking the delivery of property,
of the movable property be invested in safe including accessories, which are necessary for its normal
securities enjoyment. Note that the court may or may not grant
petition. This is based on necessity.
NOTE: The interest on the proceeds of the sale of the
movables and that on public securities and bonds, and the Art. 587 will not apply when the usufructuary is exempted or
proceeds of the property placed under administration shall excused from giving security. It applies only if he is required
belong to the usufructuary. but he cannot afford.
Q: In the above mentioned instances, may the naked owner Q: In case of causion juratoria, may the usufruct lease the
retain the property? property?
A: Yes, if he so desires with the obligatiob to turn-over to the A: He cannot lease the property, because it means he does
usufructuary the income of fruits of the property after not need it.
deducting the expenses of administration.
NOTE: Delivery of property does not amount to waiver to ask
NOTE: The usufructuary cannot collect credits that had for security afterwards , it is a potestative right, he can still
matured. He cannot enter into possessoon of the property demand for a security
and he cannot mortgage it.
If owner does not want to sell certain artistic article with
Art. 587. If the usufructuary who has not given security sentimental value, he may demand their delivery to him,
claims, by virtue of a promise under oath, the delivery of the subject to his giving a security bond for the payment of legal
furniture necessary for his use, and that he and his family be interest based on appraised value.
allowed to live in a house included in the usufruct, the court
may grant this petition, after due consideration of the facts Art. 588. After the security has been given by the
of the case. usufructuary, he shall have a right to all the proceeds and
benefits from the day on which, in accordance with the title
The same rule shall be observed with respect to constituting the usufruct, he should have commenced to
implements, tools and other movable property necessary receive them. (496)
for an industry or vocation in which he is engaged.
When appropriate security has been given, usufructuary shall
If the owner does not wish that certain articles be sold have a right to all the proceeds and benefits as of the date he
because of their artistic worth or because they have a was supposed to have received them. This retroacts to the
sentimental value, he may demand their delivery to him day when usufructuary should have commenced receiving
upon his giving security for the payment of the legal interest them
on their appraised value. (495)
Art. 589. The usufructuary shall take care of the things
Promise under oath or CAUSION JURATORIA given in usufruct as a good father of a family. (497)
Q: What is causion juratoria? Required Diligence
A: A sworn undertaking by the uusfructuary to take good care Q: What degree of diligence is required from the
of property in usufruct and return it upon termination. It usufructuary?
serves as a substitute for the security or bond.
A: The usufructuary has the obligation to take care of things
Q: What are the requisites for a causion juratoria? with diligence of a good father.

NOTES ON PROPERTY
some contagious disease or any other uncommon event, the
Q: Will bad use extinguish usufruct? usufructuary shall fulfill his obligation by delivering to the
owner the remains which may have been saved from the
A: Although care of good father of family is required, still a misfortune.
usufruct is not extinguished by bad use. Bad use only entitles
the owner to demand administration without prejudice to the Should the herd or flock perish in part, also by accident and
usufruct. without the fault of the usufructuary, the usufruct shall
continue on the part saved.
Q: What are the obligations of the usufructuary to fulfill the
requirement of diligence of good father? Should the usufruct be on sterile animals, it shall be
considered, with respect to its effects, as though constituted
A: on fungible things. (499a)
1. Make ordinary repairs
2. To notify naked owner of the urgency of extra-ordinary Replacement of animals
repairs or of any acts which may prove detrimental to
ownership Q: When is there an obligation to replace exist?
NOTE: The usufructuary shall answer for the damages caused A:

by the fault of the person substituting him should he alienate 1. If some animals diefrom natural causes
or lease the usufruct. 2. If some are lost due to rapacity of beasts of prey
Q: What if the property is damaged? Q: Why is there a duty to replace notwithstanding the fact
that such occurrence is a fortuitous event?
A: Damage to property caused through the negligence of
property is demandable right away. The naked owner need A: Because such loss is more or less expected and is natural
not wait for the termination of the usufruct to bring the
proper action. Q: To whom the remains of dead animals pertain?
Q: What is herd? A: To the usufructuary
A: Number of animals kept, feeding or travelling together; if Q: What will consist of the replacement?
one kind (flock)
A: Replacement will consist of young of these animals. If
Q: What is livestock? young animals are more than that to be replaced, excess will
pertain to usufructuary. If there is no young and animals died,
A: Mammalian animals and poultry, the avian animals which there is no liability.
are domesticated and kept or raised in backyards or farms.
Hence if 15 cattle died but only 3 were produced, only 3 must
Art. 590. A usufructuary who alienates or leases his right of be replaced.
usufruct shall answer for any damage which the things in
usufruct may suffer through the fault or negligence of the If 15 died and 15 were produced but only 12 remains because
person who substitutes him. (498) 3 were sold, the usufructuary must still replace the 3, even in
cash, otherwise, he could by his overt act defeat the law.
Usufructuary is liable for damages caused by the lessee;
because he has the choice as to who will rent. Although the law says “each year,” this does not mean that
the computation must be done yearly.
Thus, while the substitute answers to the usufructuary, the
usufructuary is liable to the naked owner. Q: When is there no obligation to make replacement?
Art. 591. If the usufruct be constituted on a flock or herd of A: If all animals had perished:
livestock, the usufructuary shall be obliged to replace with 1. If there is a total loss of animals because of contagious
the young thereof the animals that die each year from diseases or other common event. Provided, that the
natural causes, or are lost due to the rapacity of beasts of usufructuary has no fault
prey. 2. If there is partial loss under the same conditions
If the animals on which the usufruct is constituted should all Since no obligations to replace, it follows even all should
perish, without the fault of the usufructuary, on account of perish, the remains must be delivered to the owner.

NOTES ON PROPERTY
A: If upon demand on the usufructuary, he did not or refuse
The same rule applies in case of partial loss. The remains not to do repairs, the owner can do such and charge the expenses
the remainder of the flock must be given to the naked owner. against the usufructuary.
Q: What if the partial loss is because of the usufructuary’s Q: May the usufructuary be exempted from doing repairs?
fault, does the usufruct continue on the remainder?
A:
A: Manresa says yes because bad use or abuse does not a. if he is not at fault- yes, but he must surrender the fruits
extinguish the usufruct without prejudice however to the received
right of the naked owner to demand administration by him. b. If he was at fault- no, he is liable in addition to cost of
repairs for damages
Q: What is the rule in case of sterile animals?
NOTE: If the property deteriorates even if repairs was made,
A: Since there are no young which could be produced and the owner is burdened, because usufructuary has already
used as replacement, the rule on usufruct over fungibles done his job
applies.
Art. 593. Extraordinary repairs shall be at the expense of the
Art. 592. The usufructuary is obliged to make the ordinary owner. The usufructuary is obliged to notify the owner
repairs needed by the thing given in usufruct. when the need for such repairs is urgent. (501)
By ordinary repairs are understood such as are required by Art. 594. If the owner should make the extraordinary
the wear and tear due to the natural use of the thing and repairs, he shall have a right to demand of the usufructuary
are indispensable for its preservation. Should the the legal interest on the amount expended for the time that
usufructuary fail to make them after demand by the owner, the usufruct lasts.
the latter may make them at the expense of the
usufructuary. (500) 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.
Ordinary repairs (502a)
Q: What are ordinary repairs? Extra-ordinary repairs
A: Repairs needed due to wear and tear suffered by the Q: What are extra-ordinary repairs?
property thru natural use and indispensable for preservation
(both). A: Repairs needed to restore to its good condition a thing or
property which has deteriorated by reason of exceptional
Q: What are the requisites for it to be considered as circumstances whether or nor they are essential to its
ordinary repairs? preservation or those caused by the natural use of the
property but not necessary for its preservation.
A:
a. They are required by normal or natural use Q: Who shall shoulder theses expenses?
b. They are needed for preservation
c. They must have occurred during the usufruct A: At the expense of the owner. But it is the duty of the
d. They must have happened with or without the fault of usufructuary to notify the owner of such needed repairs
the usufructuary. when the same is urgent. If not urgent, there is no duty to
make the notification
Q: During what period is the usufructuary liable?
Q: Can the usufructuary compel the owner to make extra-
A: The usufructuary is liable only for ordinary repairs during ordinary repairs?
the usufruct, thus, those existing at the time the usufruct is
entered into pertains to the owner. A: The usufructuary cannot compel the owner to make
extraordinary repairs. Also, the owner cannot compel the
Q: What if the usufructuary refuses to do the repairs? usufructuary to make repairs, if owner did not execute except
when the provision of title constituting the usufruct so
provided.

NOTES ON PROPERTY
The owner can construct any works and improvements or
Kinds of Extra-ordinary repairs introduce new plantings, even if usufructuary is in possession.
However, this is subject to some restrictions.
Q: What are the different kinds of Extra-ordinary repairs?
Q: What are the restrictions to the above rule?
A:
1. Due/ caused by natural use of thing and not needed for A:
preservation 1. Value of the usufruct shall not diminish
2. Right of the usufruct shall not be prejudiced
The law does not require the naked owner to make the
repairs. If he does not want to, it is all right. What is Q: Is the usufructuary obliged to pay legal interest?
important is that if they are made, the expenses must be
borne by the naked owner. A: Usufructuary not obliged to pay legal interest because they
are voluntary acts of owner
2. Due to exceptional circumstances but are needed for
preservation Art. 596. The payment of annual charges and taxes and of
those considered as a lien on the fruits, shall be at the
The naked owner cannot be compelled to make the repairs. expense of the usufructuary for all the time that the
But the usufructuary is allowed to make them after due usufruct lasts. (504)
notice and failure of the naked owner to repair, with the right
to get the increase in value and the right of retention until Art. 597. The taxes which, during the usufruct, may be
paid upon termination. imposed directly on the capital, shall be at the expense of
the owner.
3. Exceptional circumstances but not needed for
preservation If the latter has paid them, the usufructuary shall pay him
the proper interest on the sums which may have been paid
The naked owner cannot be compelled to make the repairs in that character; and, if the said sums have been advanced
because they are not necessary for preservation 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.
Right of naked owner if he makes the Examples of charges:

Extra-ordinary repairs a. extraordinary repairs,
b. expenses for gathering/ cultivation
If the naked owner incurred expenses, he can charge the
usufructuary with legal interest (6%) on the amount for the Q: Who shall pay for the real property tax?
duration of the usufruct.
A: Real property tax, being a burden upon the capital, should
Formula: be paid by the owner of the land and not the usufructuary.
Increase in value= value after improvement minus value Rules when taxes are paid by the parties
before improvement
Q: What are the rules when taxes are paid by the parties?
If the usufructuary made the extraordinary repairs which are
indispensable for the preservation of property; he may A:
demand from the owner the resulting increase in the value of 1. If paid by the naked owner- the usufructuary shall pay
the property by reason of repairs done him the proper interest (legal interest or otherwise) on
the sums which may have been paid in that character.
Art. 595. The owner may construct any works and make any The reason is that usufructuary is still enjoying the
improvements of which the immovable in usufruct is property and has been benefited.
susceptible, or make new plantings thereon if it be rural, 2. If advanced by the usufructuary- he shall recover the
provided that such acts do not cause a diminution in the amount thereof at the time termination of the usufruct
value of the usufruct or prejudice the right of the provided they are voluntary if usufructuary was forced to
usufructuary. (503) pay, reimbursement should be made immediately.

NOTES ON PROPERTY
Q: What are the rights of the usufructuary who advanced not contain any declaration to the contrary, the former is
the taxes? understood to be liable to pay only the debts which appear
to have been previously contracted. In no case shall the
A: donee be responsible for the debts exceeding the value of
1. Be reimbursed or recover the amount without legal the property donated, unless a contrary intention clearly
interest appears. (642a)
2. Entitled to retention until paid
If there’s no stipulation, Art. 759 shall govern:
Art. 598. If the usufruct be constituted on the whole of a
patrimony, and if at the time of its constitution the owner Art. 759. There being no stipulation regarding the payment
has debts, the provisions of Articles 758 and 759 relating to of debts, the donee shall be responsible therefor only when
donations shall be applied, both with respect to the the donation has been made in fraud of creditors.
maintenance of the usufruct and to the obligation of the
usufructuary to pay such debts. Q: When does Art. 598 apply?
The same rule shall be applied in case the owner is obliged, A:

at the time the usufruct is constituted, to make periodical
payments, even if there should be no known capital. (506) 1. If the usufruct is universal one (constituting on the
whole property);
Q: What if the usufruct is constituted on the whole of a 2. If the naked owner:
patrimony but the naked owner has indebtedness?
a. Has debts; or
A: b. Is obliged to make periodical payments (whether or
1. If there is any agreement whereby the usufructuary will not there be known capital).
pay the owner’s indebtedness, then the usufructuary is
bound by his prestation (Art 758). According to Dean Pineda, the second paragraph does not
require that the usufruct is constituted or the whole
If in agreement no amount is fixed, the liability of the patrimony. It does not speak of universal usufruct if the
usufructuary can not exceed the value of usufruct (must naked owner did not reserve sufficient property for payments
cover past credit/ debt) Art 758. of debts.
2. If there is no agreement to pay for the obligation of the

owner, usufructuary will be liable to pay for the
obligation of owner, if usufructuary was made or
constituted in fraud of creditors.
Donation of everything except the usufruct
Q: When can the transaction be considered as in fraud of
creditors? Art. 598 particularly apply if a person donates everything but
reserves to him the usufruct.
A: If at the time of execution, the owner did not reserve
sufficient property with which to pay his debts prior to the Art. 750. The donations may comprehend all the present
usufruct. property of the donor, or part thereof, provided he reserves,
in full ownership or in usufruct, sufficient means for the
NOTE: This Article applies only to Universal Usufruct. If support of himself, and of all relatives who, at the time of
particular, naked owner has still other properties available, the acceptance of the donation, are by law entitled to be
not subject to usufruct. supported by the donor. Without such reservation, the
donation shall be reduced in petition of any person affected.
Q: When does a usufructuary have to pay for the debt of the (634a)
naked owner?
Art. 599. The usufructuary may claim any matured credits
A: It depends. A distinction has to be made whether which form a part of the usufruct if he has given or gives the
stipulation exists or not. proper security. If he has been excused from giving security
or has been able to give it, or if that given is not sufficient,
If there’s a stipulation, Art. 758 shall govern: he shall need the authorization of the owner, or of the court
in default thereof, to collect such credits.
Art. 758. When the donation imposes upon the donee the
obligation to pay the debts of the donor, if the clause does

NOTES ON PROPERTY
The usufructuary who has given security may use the capital Usufruct of a mortgaged immovable
he has collected in any manner he may deem proper. The
usufructuary who has not given security shall invest the said Q: Is the usufructuary of a mortgaged immovable obliged to
capital at interest upon agreement with the owner; in pay the debt for the security of which the mortgage was
default of such agreement, with judicial authorization; and, constituted?
in every case, with security sufficient to preserve the
integrity of the capital in usufruct. (507) A: No.
Collection Matured Credits Q: What is the liability of the naked owner if the immovable
is attached or is judicially sold?
Q: Can the usufructuary collect demandable credits?
A: If the immovable be attached or sold judicially for the
A: Usufructuary is allowed to collect demandable credits payment of the debt, he owner shall be liable to the
which form part of the usufruct like rentals due but he could usufrheuctuary for whatever the latter may lose or suffer by
not claim such credit if he had not given prior security or reason thereof.
bond.
Q: How is the liability of the naked owner extinguished?
Accordingly, if he usufructuary has given security, collection
can be done without the consent of the naked owner or the A: The naked owner may:
approval of the court. But if the usufructuary has not given
security, or when he is excused, or when there is only caucion a. Constitute a usufruct over an equivalent estate;
juratoria, collection and investment can only be done with b. Payment of a periodical pension; and
the consent or authorization of the naked owner and in c. In any other similar way.
default, the approval of the court.
Q: What is the rule if the usufruct is a universal one?
Ownership of the credit collected
A: If the usufruct is universal and some of which are
If credit is collected, ownership belongs to the naked owner, mortgaged, the more applicable article is Art. 598 with
because matured credit contemplated by the article is that reference to Art. 7598 and 759.
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. Mortgaging of the usufructuary rights
Q: What is the effect of failure to collect due to Since the right is distinct from the thing in usufruct, it may be
usufructuary’s fault or negligence? mortgaged by the usufructuary not the naked owner. In such
a case, it is the usufructuary who should pay his debt. Hence
A: The usufructuary shall be liable if the credit that has the usufructuary may mortgage the usufruct but not the
matured (due and demandable) is not collected through his property.
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 Pledge of a movable
not liable, provided the lack or delay of approval was not
attributable to him. Art. 600 also applies, by analogy, to pledge of a movable,
provided that the movable is in the usufructuary’s possession
Q: May the usufructuary invest the money? since the law on pledge provides that it is essential that the
thing pledges be placed in the possession of the creditor or a
A: Yes but if there’s no security there must be an third person by common agreement.
authorization from the owner or from the court.
Q: What are the requisites before a usufruct over a pledged
Art. 600. The usufructuary of a mortgaged immovable shall movable may be constituted?
not be obliged to pay the debt for the security of which the
mortgage was 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

NOTES ON PROPERTY
2. That the usufructuary is not barred from taking A: The naked owner shall give equivalent usufruct to what
possession of the usufruct. was foreclosed or pay for the duration remaining plus
damages.
Art. 601. The usufructuary shall be obliged to notify the
owner of any act of a third person, of which he may have
knowledge, that may be prejudicial to the rights of
ownership, and he shall be liable should he not do so, for CHAPTER 4
damages, as if they had been caused through his own fault. EXTINGUISHMENT OF USUFRUCT
(511)
Art. 603. Usufruct is extinguished:
Notification by the Effec of lack of notice
usufructuary required (1) By the death of the usufructuary, unless a contrary
If a third party commits acts The usufructuary is liable as if intention clearly appears;
prejudicial to the rights of damage has been cause (2) By the expiration of the period for which it was
the ownership in so far as through his own fault; constituted, or by the fulfillment of any resolutory condition
the rights of the naked provided in the title creating the usufruct;
owner is affected; (3) By merger of the usufruct and ownership in the same
If urgent repairs are needed The usufructuary cannot person;
(Art. 593); make the exraordinary
repairs (Art. 5944); (4) By renunciation of the usufructuary;
If an inventory is to be made The inventory may go on, but (5) By the total loss of the thing in usufruct;
(Art. 583). the naked owner may later (6) By the termination of the right of the person constituting
point out the discrepancy or the usufruct;
omissions in the inventory. (7) By prescription. (513a)
Extinguishment of usufruct
Art. 602. The expenses, costs and liabilities in suits brought
with regard to the usufruct shall be borne by the Death of the usufructuary, unless contrary intention appears
usufructuary. (512)
GR: Deathextinguishes usufruct.
Q: When does this article apply?
XPN:
A: This article particularly applies only when the usufructuary
has lost the case in a usufruct of an action to recover. a. In the case of multiple uusufruct-death of the last
surviving usufructuary ends the usufruct;
It is applicable only to litigations involving the usufruct b. If there is a period fixed basded pn a number of
directly affecting the rights of the usufructuary. years to elapse before a person would reach a
certain age; and
If litigation involves the defense of the naked ownership it is
chargeable to the naked owner. XPN: Usufruct constituted as upport
Costs and Expenses c. In case contrary intention clearly appears (expressly

or impliedly).
Expenses, costs, liabilities in suits with regard to the usufruct
shall be borne by the usufructuary. This is true even if a resolutory condition or period has been
stipulated and the usufructuary dies before the expiration of
If the litigation is won: the period or the fulfillmnet of the condition.
1. Right to Usufruct: usufructuary bears costs; and Q: What is the rationale behind such rule?
2. Object held in usufruct: costs borne by naked
owner. A: Usufruct is constituted essentially as a lifetim benefit for
the usufructuary or in consideration of his person.
Q: What is the remedy or indemnity in case of foreclosure of
the property? 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.

NOTES ON PROPERTY
Consequently, the heirs shall respect the usufruct if there is a b. Full capacity to make the waiver;
clear agreement. c. Waiver is clear and unequivocal; and
d. Not contrary to law, public order, public policy,
rd
Expiration of the period or fulffillment of the resolutory morals or good customs or prejudicial to a 3 person
condition with a right recognized by law.
Q: What is a period? Q: Can there be partial waiver?
A: It is a future event which must necessarily come although A: Yes. But if the usufruct is universal, waiver must be as a
it may not be known when. whole.
Q: What is a condition? Merger of the usufruct and ownership in the same person
A: It is an uncertain event which may or may not happen. Q: How does merger take place?
Note: This article applies when the period agreed upon for A: This takes place when the rights of usufruct and ownership
the lifetime of the usufruct has already expired or when the are aqcuired by one and the same person (Art. 1275) who
resolutory condition imposed already fulfilled. becomes the absolute owner thereof either through sale or
succession.
Renunciation of the usufructuary
Total loss of the thing
Q: Who makes the renunciation?
The loss must be total. If the loss is only partial, the usufruct
A: it is made by the usufructuary since he is the one who has continues with the remaining part.
the right he is the only when capable of waiving such right.
Q: What are the instances of total loss?
Q: In what form should the renunciation be made?
A:
A: Since it partakes of a condonation or donation, it can be
made expressly or impliedly, as long as it is done clearly. 1. out of commerce of man;
2. physical total destruction; and
If it is done expressly, it must comply with the forms of 3. Expropriation (legal loss).
donation.
Q: Under what instance is partial loss deemed total?
Q: Is the renunciation an assignment of right?
A: In case of partial loss, the usufruct continues provided that
A: No. It is really abandonment by the usufructuary of his benefit may still be obtained (art 604) but if the purpose will
right and does not require the consent of the naked owner not be obtained it will be deemed as total loss.
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.
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? believes he owns and later, a person with superior right over
the property had established his claim and had lawfully
A: It has the effect of the automatic reversion of usufruct to evicted the owner, the usufruct terminates. Accordingly, the
the owner. 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
renouncing;

NOTES ON PROPERTY
A: It refers to acquisitive prescription. It is the use by a third has been expressly granted only in consideration of the
person which ripened into ownership and not the non-use by existence of such person. (516)
the usufructuary which extinguishes the usufruct by
prescription. Usufruct until a person reaches a certain age
rd
Note: Mere non use of usufruct does not terminate the G.R.: If a usufruct is constituted to last until a 3 person
rd
usufruct, unless it also constitutes renunciation reaches a certain age, the usufruct will subsist until such 3
person has reached the age specified, whether or not the
Causes of extinguishment of the usufruct person survives the period
Q:What are the other causes of extinguishment of the XPN: Expressly granted only in consideration of the existence
usufruct? of such person; usufruct terminates upon death of the said
person
A:
Example: If Andres gave Boni the land in usufruct to support
1. Annulment; Shine. Shine’s death extinguishes the usufructuary
2. Rescission;
3. Mutual withdrawal; Art. 607. If the usufruct is constituted on immovable
4. Legal causes like a minor attaining the age of property of which a building forms part, and the latter
majority in the case of parental usufruct; and should be destroyed in any manner whatsoever, the
5. Expropriation usufructuary shall have a right to make use of the land and
the materials.
Art. 604. If the thing given in usufruct should be lost only in
part, the right shall continue on the remaining part. (514) The same rule shall be applied if the usufruct is constituted
on a building only and the same should be destroyed. But in
Art. 605. Usufruct cannot be constituted in favor of a town, such a case, if the owner should wish to construct another
corporation, or association for more than fifty years. If it has building, he shall have a right to occupy the land and to
been constituted, and before the expiration of such period make use of the materials, being obliged to pay to the
the town is abandoned, or the corporation or association is usufructuary, during the continuance of the usufruct, the
dissolved, the usufruct shall be extinguished by reason interest upon the sum equivalent to the value of the land
thereof. (515a) and of the materials. (517)
Q: What is the rule regarding usufruct in favor of juridical Usufruct is Constituted on Immovable property of which a
entities? building forms part and latter should be destroyed
A: Lifetime of usufruct cannot exceed 50 yrs. to conform with 1. Usufruct is both over the land and building
the ordinary maximum lifetime of corporations under
corporation law. a. Usufruct on the land continues because land is not lost,
but on building terminated (assumption of total loss)
NOTE: If town is abandoned or corporation is dissolved b. Usufructuary can use the land and materials saved from
before the expiration of the term, usufruct is terminated and building
reverts to the owner resulting in latter’s full ownership 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
Testamentary trust is not restricted by Art 605 2. Usufruct is constituted on building only
A testamentary trust for the establishment of a high school in a. Usufruct on building extinguished (totally destroyed)
a town with the governor of the province as the trustee and b. Usufructuary can make use of materials saved
the town’s people as the beneficiary is not restricted by c. Owner has preferential right to use the land and the
Art.605. said trust can continue to serve purpose of the materials with obligation to pay the usufructuary during
testamentary disposition of the testator. the continuance of the usufructuary, the interest upon
the sum equivalent to the value of the land and materials
Art. 606. A usufruct granted for the time that may elapse d. The naked owner has the preferential right to use the
before a third person attains a certain age, shall subsist for land. Thus, if the naked owner would like to rebuild, but
the number of years specified, even if the third person the usufructuary refuses, the naked owner will prevail.
should die before the period expires, unless such usufruct

NOTES ON PROPERTY
e. The law states that if the owner would like to construct 1. Where the usufructuary failed (not refused) to contribute
another building or to restore, the naked owner shall because of ignorance or lack of notice
have the right to occupy the land and to make use of the 2. Where the usufructuary alone pays the insurance
material, being obliged to pay to the usufructuary, during premium
the continuance (remaining part of the period) of the
usufruct, the interest (legal interest) upon sum Proportion in sharing of contribution
equivalent to the value of the land and materials.
Manresa: the amount respectively given is immaterial as long
NOTE: The interest is based on: as both shared in paying, the first par. Of Art. 608 will appy,
a. The materials because the usufruct is on the building except if there is a stipulation by parties
b. The land because although there was no usufruct on
the land, still the use of the building includes the use Pineda: 50-50 sharing. Otherwise, there should have been
of the land proportional sharing specifically provided by law. Also, this is
to avoid unjust enrichment on the part of any of the parties.
Use of land is mere concession or incidental to the
usufructuary. Paras: A better solution would be to make the sharing of the
premiums proporionate to the respective insurable interest
Person at fault must indemnify of the naked owner and the usufructuary
If the destruction is caused by naked owner, he shall be liable Rules:

for cost of bldg. on the other hand, if the destruction was due
to the fault of usufructuary, the latter shall be liable for: 1. If both naked owner and the usufructuary share in the
premium and the property is destroyed
Formula: a. If the owner constructs or rebuilds
b. If the owner does not construct
Amount of building + damages (includes moral and exemplary
damages) 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
Art. 608. If the usufructuary shares with the owner the obligation to give the interest thereon to the
insurance of the tenement given in usufruct, the former usufructuary
shall, in case of loss, continue in the enjoyment of the new b. Apply Art. 607-“saving the right granted to the
building, should one be constructed, or shall receive the usufructuary in the preceding article
interest on the insurance indemnity if the owner does not
wish to rebuild. 3. If the naked owner alone pays but there is no refusal but
mere failure
Should the usufructuary have refused to contribute to the
insurance, the owner insuring the tenement alone, the Here the effect is the same as if there was sharing, but the
latter shall receive the full amount of the insurance usufructuary must reimburse the naked owner his share in
indemnity in case of loss, saving always the right granted to the premium
the usufructuary in the preceding article. (518a)
4. If the usufructuary alone pays the insurance premium
Insurance of the tenement held in usufruct
Q: What is the measure of a insuranble interest?
Q: What are the 2 circumstances provided under this
article? A: Under the Insurance Code, the measure of a insuranble
interest in a property is the extent which the indured might
A: be damnnified by the loss or injury.
1. Both the naked owner and the usufructuary share in the
payment of the insurance premium J.Paras’ commentary: The rules shall be as follows—
2. Only the naked owner pays because the usufructuary
refused to share 1. The insurance indenify should go to the usufructuary
alone, with no obligation to share with the naked owner
This article does not contemplate the following 2. The usufruct continues both on the land and building for
circumstances: the remaining period unless the usufruct is constituted
on the building alone

NOTES ON PROPERTY
3. The usufructuary has no obligation to construct a new Q: What if the usufructuary denies the owner’s claim of
building or to build considerable injury?
Q: Can the usufructuary be compelled to build? A: If usufructuary denies the owner’s claim of considerable
injury, court shall determine the issue of preponderance of
A: No because the insurance company indemnity will be evidence
much less than the cost of the building
Q: Again, what is the effect of bad use of property by
Art. 609. Should the thing in usufruct be expropriated for usufructuary?
public use, the owner shall be obliged either to replace it
with another thing of the same value and of similar A: Bad use is not cause for extinguishment but gives the
conditions, or to pay the usufructuary the legal interest on owner the right to demand the delivery and administration of
the amount of the indemnity for the whole period of the property in usufruct when abuse is considerably prejudicial to
usufruct. If the owner chooses the latter alternative, he shall the owner.
give security for the payment of the interest. (519)
NOTE: Owner cannot alienate right to usufruct while property
Rules in cases of expropriation is under administration. During administration for and in
behalf, the owner is not authorized to sell, alienate because
1. If naked owner alone received the indemnity this right pertains to usufructuary.
a. To replace with equivalent value
b. To pay to the usufructuary legal interest on the just
compensation received It is advisable that the usufructuary should register his
usufructuary rights with proper Registry of Property, if it is a
rd rd
2. If both received separate indemnities really to warn 3 persons of existence. Any 3 person who
deals on the property is bound to respect the recorded
In such case, each owns the indemnity given to him in usufruct.
proportion to their interest in the property
Art. 611. A usufruct constituted in favor of several persons
3. If usufructuary alone received indemnity living at the time of its constitution shall not be
extinguished until death of the last survivor. (521)
Paras: He must give it to the naked owner and compel the
latter to return either the interest or to replace the property. Rules in case of multiple usufruct
He may even deduct the interest himself.
If simultaneous If successive
Art. 610. A usufruct is not extinguished by bad use of the All donees must be alive or at If created by donation:
thing in usufruct; but if the abuse should cause considerable least conceived at the time of Art.756-all donees must be
injury to the owner, the latter may demand that the thing constitution alive or at least be conceived
be delivered to him, binding himself to pay annually to the at the time of the perfection
usufructuary the net proceeds of the same, after deducting Death of the last survivor of donation
the expenses and the compensation which may be allowed among others terminates the
him for its administration. (520) usufruct
If usufruct is testamentary,
Remedy in case abuses of usufructuary causing considerable the Rules on Fidei Commisary
injury to owner substitution under Art. 863
and Art. 869 shall be applied:
1. If due to the abuse or abuses of the usufructuary on the Art. 863- both the transferor
property in usufruct, the owner suffers considerable and transferee must be alive
damages or injuries, he may compel the usufructuary to or at least be conceived at
deliver the thing to him to be able to maintain it and the time of death of the
protect it from destruction or loss testator
2. If due to the abuse or abuses of the usufructuary on the
property in usufruct, but the owner does not suffer Art. 869- applies where the
considerable damages or injuries, usufruct continues and testator leaves to a person
the naked owner cannot demand administration by the whole or part of the
himself. inheritance and to another
the usufruct. If he leaves the
usufruct to various persons

NOTES ON PROPERTY
successively, Art. 863 shall EASEMENTS IN GENERAL
apply.
SECTION 1. - Different Kinds of Easements
Q: If the usufruct is constituted in favor of 14 usufructuaries,
and 3 of them die, will 3/14 of the usufruct accrue to naked Art. 613. An easement or servitude is an encumbrance
owner or the heirs of the usufructuaries or will it accrue to imposed upon an immovable for the benefit of another
the 11 surviving usufructuaries? immovable belonging to a different owner.
The immovable in favor of which the easement is
A: They will accrue in favor of the 11 surviving usufructuaries established is called the dominant estate; that which is
since usufruct contines up to the death of the last survivor. subject thereto, the servient estate. (530)
Art. 612. Upon the termination of the usufruct, the thing in Q: What is easement?
usufruct shall be delivered to the owner, without prejudice
to the right of retention pertaining to the usufructuary or his A: An encumbrance imposed upon an immovable for the
heirs for taxes and extraordinary expenses which should be benefit of another immovable belonging to a different owner
reimbursed. After the delivery has been made, the security or for the benefit of a community or one or more persons to
or mortgage shall be cancelled. (522a) whom the encumbered estate does not blong by virtue of
which the owner is obliged to abstain from doing so or to
permit a certain thing to be done on his estate.
Rights and obligations at the termination of usufruct Elements of easements
USUFRUCTUARY NAKED OWNER Q: What are the elements of easements?

1. Must return the 1. Must cancel the secutiry
property to naked owner or mortgage provided A:
that the usufructuary has 1. An encumbrance or burden, a restriction on the
comolied with all his enjoyment of the property
obligation 2. Imposed on an immovable
2. To retain the property 2. Make reimbursement to 3. Encumbrance is for the benefit of another immovable
until he is reimbursed the usufructuary for property of for the benefit of a community or of one or
for the taxes on the expenses in proper cases more persons
capital which he 4. Property must be owned by another owner. Easement is
advanced and never imposed by the owner of his own property
indispensable extra-
ordinary repair or Easement v. servitude
expenses
3. To remove the 3. Must in case of rural Q: Distinguish between easement and servitude.
improvement without land, respect leased
causing damage or set made by usufructuary, A: Easement is an english law/common law term while
them off against until the end of the servitude is the name used in civil law countries.
damages he has caused agricultural year
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:
Title VII. - EASEMENTS OF SERVITUDES

USUFRUCT EASEMENT
CHAPTER 1 Application Applies both real Applies only to

NOTES ON PROPERTY
and personal; real property; 2. Enjoyed over another immovable never on one’s
Possession Involves a Easement is a non- property;
usufruct-a right of possessory right 3. Involves 2 neighboring estates (in case of real
possession in an over an easement), the dominant estate to which a right
immovable or immovable. belongs and the servient estate upon which an
mosvable. obligation rests;
Extent All uses and fruits Limited to a 4. Inseparable from the estate to which it is attached
can be enjoyed; particular use; and thus, cannot be alienated independently of the
Constitution It may be Can be consituted estate;
constituted on the on a land held in 5. Indivisible for it is not affected by the division of the
land burdened by usufruct; estate between 2 or more persons;
easement but it 6. A right limited by the needs of the dominant owner
can’t be or estate without possession;
constituted in an 7. It cannot consist in the doing of an act unless the act
easement; is accesssory in relation to a real easement; and
Extinguishement Usually Not extinguished 8. A limitation on the servient owner’s rights of
extinguished by by the death of ownership for the benefit of the dominant owner.
the death of the the owner of the
usufructuary or 50 dominant estate. Note: Easement is established only on immovable-which
years if juridical must be understood in its common and not in its legal sense
person; under Art. 415. It covers only lands, buildings and roads
(Manresa).
Q: What are real easements?
Art. 615. Easements may be continuous or discontinuous,
A: They are those which are established for the benefit of an apparent or nonapparent.
immovable.
Continuous easements are those the use of which is or may
Q: What is a dominant estate? be incessant, without the intervention of any act of man.
A:It refers to the immovable for which the easement was Discontinuous easements are those which are used at
established and the one who enjoys the benefits of the intervals and depend upon the acts of man.
easement.
Apparent easements are those which are made known and
Q: What is a servient estate? are continually kept in view by external signs that reveal the
use and enjoyment of the same.
A: It is the property subject of an easment, the property
which provides for the benifits. Nonapparent easements are those which show no external
indication of their existence. (532)
Art. 614. Servitudes may also be established for the benefit
of a community, or of one or more persons to whom the Art. 616. Easements are also positive or negative.
encumbered estate does not belong. (531)
A positive easement is one which imposes upon the owner
Q: What is a personal easement? of the servient estate the obligation of allowing something
to be done or of doing it himself, and a negative easement,
A: They are those established for the benefit of persons that which prohibits the owner of the servient estate from
without a dominant immovable estate. It cannot be doing something which he could lawfully do if the easement
transmitted as oppose to real easement. This is also called as did not exist. (533)
easement in gross.
CLASSIFICATION OF EASEMENTS
Characteristics of easement
Q: What are the different classification of easements?
Q: What are the different characteristics of easement?
A:
A:
1. According to party given the benefit;
1. A real right but which will affect third persons only
when registered; a. Real

NOTES ON PROPERTY
b. Perosnal require human actions for establishment, not all require
human action for exercise (Manresa).
2. According to the manner they are exercised;
According to indication of existence
a. Continuous
b. Discontinuous 1. Apparent- the mark or sign need not be seen, but should
be susceptible of being seen. The easement of aqueduct
3. According to indication of existence; is considered always apparent whether or not it can be
seen.
a. Apparent
b. Non-apparent 2. Non-apparent
4. According to purpose of the easement or nature of According to purpose of the easement or nature of
limitation; limitation
a. Positive 1. Positive
b. Negative
Q: What are the obligations of the owner of the servient
5. According to right given; and estate in positive easements?
a. Partial use A:
b. Getting of specific materials a. To allow something to be done in his property;
b. To do it himself.
6. According to source or origin
They are also termed as servitudes of sufferance or intrusion
a. Legal or service because something is done on the servient estate.
b. Voluntary
c. Mixed 2. Negative- here the owner of the servient estate is
prohibited to do something which he could lawfully do
According to party given the benefit were it not for the easement.
1. Real-constituted for the benefit of another immovable They are also called as servitudes of absention or limitation
belonging to a different owner; or restriction.
2. Personal-established for the benefit of one or more
persons or of a community without a dominant According to right given
immovable estate.
1. Partial use
According to the manner they are exercised 2. Getting of specific materials
3. Right to participate in ownership
1. Continuous 4. Right to impede or prevent the neighboring estate
from performing a specific act of ownership.
For an easment to be continuous, it does not require that
they be incessant, it is enough that the use may be incessant. According to source or origin
2. Discontinuous 1. Legal
2. Voluntary
While both continuous and discontinuous easement, as 3. Mixed
easement may be continuous (permanent), their exercise
may be continuous or discontinuous. Example: Right of way. Art. 617. Easements are inseparable from the estate to
which they actively or passively belong. (534)
Q: Is the easement of light and view continuous or a
discontinuous easement? Thus, it can’t be mortgaged. It has an independent juridical
existence because it is a real right.
A: While it is true that to construct a window is an act of man,
still once constructed, the easement remains. Hence, we can Art. 618. Easements are indivisible. If the servient estate is
say that the easement of light and view is a continuous not a divided between two or more persons, the easement is not
disconinuous easement. For indeed while all easements

NOTES ON PROPERTY
modified, and each of them must bear it on the part which A: Yes, there is no reason why eminent domain cannot be
corresponds to him. used to merely impose a burden or encumbrance upon the
condoned property.
If it is the dominant estate that is divided between two or
more persons, each of them may use the easement in its Art. 621. In order to acquire by prescription the easements
entirety, without changing the place of its use, or making it referred to in the preceding article, the time of possession
more burdensome in any other way. (535) shall be computed thus: in positive easements, from the day
on which the owner of the dominant estate, or the person
Q: Is there such thing as judicial easement? who may have made use of the easement, commenced to
exercise it upon the servient estate; and in negative
A: None. Courts can only declare its existence or non- easements, from the day on which the owner of the
existence. dominant estate forbade, by an instrument acknowledged
before a notary public, the owner of the servient estate,
Art. 619. Easements are established either by law or by the from executing an act which would be lawful without the
will of the owners. The former are called legal and the latter easement. (538a)
voluntary easements. (536)
This article applies only to easements acquired by
prescription.
SECTION 2. - Modes of Acquiring Easements Continuous an apparent easements may either be postive or
negative depending on whether sufferance or abstention is to
Art. 620. Continuous and apparent easements are acquired be made.
either by virtue of a title or by prescription of ten years.
(537a) Q: May the easement of right of way be acquired by
prescription?
Q: How are easements acquired?
A: No because it is disontinuous or intermittent. The
A: limitation on the servient owner’s right of ownership exists,
only when the dominant owner actually crosses or passes
1. If continous and apparent they may be acquired by over the servient estate. Prescription requires that the
title or by prescription; possession be continuous or uninterrupted since the
2. If continuous and non-apparent only by title dominant owner cannot be continually crossing the servient
3. If discontinuous and apparent only by title estate but can do so only at intervals. The easement is
4. If discontinuous and non-apparent only by title. necessarily discontinuous in nature.
Q: What is meant by title? Note: Generally, negative easements being non-apparent

cannot be acquired by prescription. Yet, for purposes of
A: Title does not necessarily mean document. It mean any prescription, negative easements may be considered as
juridical act to create the enumbrance. Like law, donation or apparent because of the notarial prohibition sent to the
testamentary succession. owner of the servient estate.
Note: The notarial prohibition makes apparent what is not

apparent. Oral prohibition and private writing therefore does
1. Intestate succession does not cerate an easement for no not suffice because the law requires solemn formalities.
act is involved. It merely transmits an easement already
existing. Art. 622. Continuous nonapparent easements, and
2. Prescription is a mode of acquisition and is generally or discontinuous ones, whether apparent or not, may be
ordinarily a title but Art. 620 makes it a distinct mode of acquired only by virtue of a title. (539)
acquiring easements. Thus, prescrition under Art. 620
requires 10 years irrespective of good faith or bad faith, ACQUISITION ONLY BY TITLE
or the presence or absence of just title on the part of the
possessor. Continuous and apparent easements are the only easements
that can be acquired by prescription because they are the
Q: Is eminent domain a mode of acquiring easements? 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

NOTES ON PROPERTY
The easements under Art. 622 may be acquired by title but Note: Voluntary easements must be registered to bind third
not by prescription because their possession or exercise is persons while legal easements need not be registered.
either not public or it is public but not continuous or
uninterrupted Art. 626. The owner of the dominant estate cannot use the
easement except for the benefit of the immovable originally
Acquisition of easement of right of way by contemplated. Neither can he exercise the easement in any
prescription: other manner than that previously established. (n)
The easement cannot be acquired by prescription, but if the The easement is for the exclsuive benefit of the dominant
greater right of ownership of the property can be acquired by estate originally contemplated and cannot be extended to
prescription, there seems to be no reason why the right of other estates owned by the dominant estate.
way which is a mere encumberance on the property cannot
be similarly acquired. The manner of exercise of the easement cannot be modified
to prevent increase in the burden of the easement to the
Art. 623. The absence of a document or proof showing the servient estate.
origin of an easement which cannot be acquired by
prescription may be cured by a deed of recognition by the If the easement is established in a general manner:it can be
owner of the servient estate or by a final judgment. (540a) used to suit the reasonable needs of the dominant estate.
Note: The court order is merely declaratory of the existence

of the easement. It does not apply to continuous and
apparent easements. SECTION 3. - Rights and Obligations
of the Owners of the Dominant and Servient Estates
Art. 624. The existence of an apparent sign of easement
between two estates, established or maintained by the Art. 627. The owner of the dominant estate may make, at
owner of both, shall be considered, should either of them be his own expense, on the servient state any works necessary
alienated, as a title in order that the easement may for the use and preservation of the servitude, but without
continue actively and passively, unless, at the time the altering it or rendering it more burdensome.
ownership of the two estates is divided, the contrary should
be provided in the title of conveyance of either of them, or For this purpose he shall notify the owner of the servient
the sign aforesaid should be removed before the execution estate, and shall choose the most convenient time and
of the deed. This provision shall also apply in case of the manner so as to cause the least inconvenience to the owner
division of a thing owned in common by two or more of the servient estate. (543a)
persons. (541a)
The necessity of the works for the use and preservation of the
The provision contemplates a situation where two estates easement is the basis and the determining factor for the
between which there exists an apparent sign of an easement, extent of such works.
belong to the same owner; what the law requires is that the
sign indicates the existence of a servitude although there is The works must be executed in the manner least
no true servitude there being only one owner. inconvenient to the servient owner, who cannot recover
indemnity for the inevitable damages or inconveniences
The article applies in case of a division of a common property which may be caused thereby.
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. But if the work is done badly, the dominant owner will be
liable for damages that may be suffered by the servient
The article is not applicable in case the two estates or owner.
portions of the same estate remain or continue to be in the
same owner after alienation or partition. Rights of dominant owner
Art. 625. Upon the establishment of an easement, all the Q: What are the rights of dominant owner?
rights necessary for its use are considered granted. (542)
A:
Q: What is the effect of the principal easement to the 1. to exercise all the rights necessary for the use of the
secondary easements? easement;
2. to make on the servient estate all the works necessary
A: It shall terminate all secondary and accessory easements. for the use an preservation of the servitude;

NOTES ON PROPERTY
3. to renounce the easement if he desires to exempt
himself from contribution to necessary expenses; If the dominant owner violates the restrictions imposed by
4. to ask for mandatory injunction to prevent impairment of this article, he can be compelled to restore the things to their
his use of the easement original condition, and furthermore, to pay indemnity for
damages.
Obligations of dominant owner
Art. 628. Should there be several dominant estates, the
Q: What are the obligations of dominant owner? owners of all of them shall be obliged to contribute to the
expenses referred to in the preceding article, in proportion
A: to the benefits which each may derive from the work. Any
1. he cannot alter the easement or render it more one who does not wish to contribute may exempt himself
burdensome; by renouncing the easement for the benefit of the others.
2. he shall notify the servient owner of works necessary for
the use and preservation of the servitude; If the owner of the servient estate should make use of the
3. he must choose the most convenient time and manner in easement in any manner whatsoever, he shall also be
making the necesary works as to cause the least obliged to contribute to the expenses in the proportion
inconvenience to the servient owner; stated, saving an agreement to the contrary. (544)
4. he must contribute to the necessary expenses if there
are several dominant estates in proportion to the Dominant owner alone shall shoulder the expenses referred
benefits derived from the works to in art. 627.
Rights of the servient owner Q: If the easement is in favor of several dominant estates,
who shall shoulder the expenses?
Q: What are the rights of servient owner?
A: If the easement is in favor of several dominant estates, all
A: the owners shall share the expenses in proportion to their
1. to retain the ownership of the portion of the estate on respective interests.
which the easement is established;
2. to make use of the easement, unless there is an Q: What is the presumption as to benefits?
agreement to the contrary;
3. to change the place or manner of the use of the A: The benefits shall be presumed equal in the absence of any
easement provided it be equally convenient agreement or proof to the contrary.
Obligations of the servient owner Q: May an owner exempt himself from contributing for
expenses?
Q: What are the obligations of servient owner?
A: An owner may exempt himself from contributing to the
A: expenses by renouncing the easement in favor of the others.
1. he cannot impair the use of the easement; Q: Is the servient owner obliged to contribute for expenses?
2. he must contribute to the necessary expenses in case he
uses the easement, unless there is an agreement to the A: The servient owner shall also be obliged to contribute to
contrary the expenses except when there is a stipulation to the
contrary, should he make use of the easement in any manner
Rights of dominant owner to make the necessary works whatsoever. If he bound himself to bear the cost of the work,
he may free himself from the obligation by renouncing his
The rights granted by art. 627 is subject to the following property to the dominant owner
conditions:
Art. 629. The owner of the servient estate cannot impair, in
1. the works which shall be at his expense, are necessary any manner whatsoever, the use of the servitude.
for the use and preservation of the servitude;
2. they do not alter or render the servitude more Nevertheless, if by reason of the place originally assigned, or
burdensome; of the manner established for the use of the easement, the
3. the dominant owner, before making the works, must same should become very inconvenient to the owner of the
notify the servient owner; servient estate, or should prevent him from making any
4. they shall be done at the most convenient time and important works, repairs or improvements thereon, it may
manner so as to cause the least inconvenience to the be changed at his expense, provided he offers another place
servient owner
NOTES ON PROPERTY
or manner equally convenient and in such a way that no (6) By the redemption agreed upon between the owners of
injury is caused thereby to the owner of the dominant the dominant and servient estates. (546a)
estate or to those who may have a right to the use of the
easement. (545) MODES OF EXTINGUISHMENT OF
EASEMENTS
NOTE: The servient owner must abstain from constructing
works or performing any act which will impair, in any manner Q: What are the modes of extinguishment of easements?
whatsoever, the use of the servitude
A:
Right of servient owner to change place or manner of 1. by merger;
easement 2. by non – user for ten years;
3. impossibility of use;
Q: What are the requisites for the exercise of the rights of a 4. by renunciation;
servient owner to change place or manner of easement? 5. by redemption;
6. other causes
A:
1. the place and manner has become very inconvenient to Merger
him from making important works thereon;
2. he offers another place or manner equally convenient; It is enough that the merger be with respect to the portion of
3. no injury is caused by the change to the dominant owner the tenement that is affected by the servitude, or the part for
or to whoever may have a right to use the easement the benefit of which it was established.
Art. 630. The owner of the servient estate retains the Where the merger is temporary or under resolutory
ownership of the portion on which the easement is condition, there is at most a suspension, but nit an
established, and may use the same in such a manner as not extinguishment of the servitude.
to affect the exercise of the easement. (n)
Non- use
NOTE: The servient owner preserves his dominion over the
portion of his estate on which the easement is established; Non-use must be due to voluntary abstentation by the
dominant owner, and not to fortuitous event, because the
He may use the easement subject to the condition that he basis of this cause of extinguishment is a presumptive
does not impair the rights of the dominant owner. renunciation.
Impossibility of use
SECTION 4. - Modes of Extinguishment of Easements The impossibility of use only suspends the servitude until
such time when it can be used again.
Art. 631. Easements are extinguished:
Art. 632. The form or manner of using the easement may
(1) By merger in the same person of the ownership of the prescribe as the easement itself, and in the same way.
dominant and servient estates; (547a)
(2) By nonuser for ten years; with respect to discontinuous
easements, this period shall be computed from the day on Prescription of form or manner of using easement
which they ceased to be used; and, with respect to
continuous easements, from the day on which an act The form or manner of using the easement is different from
contrary to the same took place; the easement itself or the right to exercise it. Both may be
(3) When either or both of the estates fall into such lost by prescription. The mode of the servitude is accidental;
condition that the easement cannot be used; but it shall hence, it does not affect the servitude itself while the
revive if the subsequent condition of the estates or either of servitude is used in one form or another.
them should again permit its use, unless when the use
becomes possible, sufficient time for prescription has Art. 633. If the dominant estate belongs to several persons
elapsed, in accordance with the provisions of the preceding in common, the use of the easement by any one of them
number; prevents prescription with respect to the others. (548)
(4) By the expiration of the term or the fulfillment of the
condition, if the easement is temporary or conditional; Where dominant estate owned in common
(5) By the renunciation of the owner of the dominant estate;

NOTES ON PROPERTY
Since easements are indivisble, the use of the co – owner
inures to the benefit of all the co – owners and prevents Q: How are private legal easements or legal easement for
prescription as to the shares of the latter. The use by a co – private interest governed?
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;
CHAPTER 2 3. In default, title VII of Art. 613 to 687 of the NCC.
LEGAL EASEMENTS
Note: The law on waters governs the use of waters and the
SECTION 1. - General Provisions NCC is merely suppletory.
Art. 634. Easements imposed by law have for their object SECTION 2. - Easements Relating to Waters
either public use or the interest of private persons. (549)
Art. 637. Lower estates are obliged to receive the waters
Q: What are legal easements? which naturally and without the intervention of man
descend from the higher estates, as well as the stones or
A: They are easements imposed by law which have for their earth which they carry with them.
object either public use or the interest of private persons. The owner of the lower estate cannot construct works
which will impede this easement; neither can the owner of
Q: What are the kinds of legal easements? the higher estate make works which will increase the
burden. (552)
A:
Repealed by Art. 50 (Water Code):
1. Public legal easement-those for public use;
2. Private legal easement-those for private interest. Article 50. Lower estates are obliged to receive the
waters which naturally and without the intervention of man
Q: What are the different legal easements under the Code? flow from the higher estate, as well as the stone or earth
which they carry with them.
A:
The owner of the lower estate can not construct works
1. Easements relating to waters; which will impede this natural flow, unless he provides an
2. Right of way; alternative method of drainage; neither can the owner of
3. Party wall; the higher estate make works which will increase this
4. Light and view; natural flow.
5. Drainage;
6. Intermidiate distances; Legal easements relating to waters
7. Easement against nuisance; and
8. Lateral and subjacent support. 1. natural drainage;
2. drainage of buildings;
Art. 635. All matters concerning easements established for 3. easement on riparian banks for navigation;
public or communal use shall be governed by the special 4. easement of a dam;
laws and regulations relating thereto, and, in the absence 5. easement for drawing waters or for watering animals
thereof, by the provisions of this Title. (550) 6. easement of aqueduct;
7. easement for the construction of a stop clock or sluice
Art. 636. Easements established by law in the interest of gate
private persons or for private use shall be governed by the
provisions of this Title, without prejudice to the provisions Q: What is a natural drainage of water?
of general or local laws and ordinances for the general
welfare. A: It is a legal easement of natural drainage of lands where
the lower estate as the servient estate would have to receive
These easements may be modified by agreement of the the natural flow of water from the higher estates.
interested parties, whenever the law does not prohibit it or
no injury is suffered by a third person. (551a) Q: What lower estates are obliged to receive?

NOTES ON PROPERTY
Q: What about rain waters from roof of buildings and
A: houses are they included in the easement of natural
1. water which naturally and without human intervention drainage of water?
descends from the higher estates
2. the stones and earth with the current of the water A: It depends. If the rainwater flows into the owner’ land
carried 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?
Duties of the Servient estate (lower estate) A: No since the law is silent and under the law on obligations
and contracts well settled is the rule that obligations arising
The servient estate is obliged to receive the waters naturally from laws cannot be presumed.
and without interventio of man flow from higher estates and
the stone and earth they carry with them Art. 638. The banks of rivers and streams, even in case they
are of private ownership, are subject throughout their entire
Because of this obligation, he cannot construct works that length and within a zone of three meters along their
will impede the easement; or will divert the flow of waters margins, to the easement of public use in the general
and burden other tenements without providing an alternative interest of navigation, floatage, fishing and salvage.
route of drainage.
Estates adjoining the banks of navigable or floatable rivers
Should he cause an obstruction, as when he builds a dike, the are, furthermore, subject to the easement of towpath for
easement may be extinguished by non-user and barred by the exclusive service of river navigation and floatage.
prescription if the action to destroy the dike is brought only
after more than 10 years. If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
Duties of the dominant estate (higher estate)
Repealed by:
He cannot make works which will increase the burden such as
increasing the velocity or speed of the descent. However,he Art. 51 (Water Code)
allowed to make construction beneficial to the servient
estate, such as works designed to prevent or minimize Article 51. The banks of rivers and streams and the shores of
erosion. the seas and lakes throughout their entire length and within a
zone of three (3) meters in urban areas, twenty (20) meters in
If the flow of water is natural and without human agricultural areas and forty (40) meters in forest areas, along
intervention then indemnity is not required under the article their margins are subject to the easement of public use in the
as long as the conditions are complied with. However, if the interest of recreation, navigation, floatage, fishing and
flow of water is the result of overflow from artificial dams or salvage. No person shall be allowed to stay in this zone longer
works done by man and damage is caused, the owner of the than what is necessary for recreation, navigation, floatage,
servient estate shall be entitled to indemnity. fishing or salvage or to build structures of any kind.
Q: May the owner of the servient estate be compelled to Easement of Riparian banks
remove the obstruction caused by the accumulation of the
stones, earth and dirt carried by the water? Q: What are easements of riparian banks?
A: According to De Buen, the owner may be required to A: It is an easement on a riparian property, banks of rivers,
remove the obstruction or allow the owner of the dominant and streams of public use in the interest of fishing, floatage,
estate to remove it, should he refuse he may be held liable and interest of recreation, navigation and salvage
for damages.
1. easement of public use on riparian banks; banks of
According to Sen. Tolentino, since the owner of the servient rivers, streams, shores of seas and lakes (whether
estate is only ibliged to receive the waters thay naturally bank be private or public, whether the river be
flow, he cannot be obliged to clear such course; but he must navigable or not)
allow the owner of the servient estata to remove it. a. fishing,
b. floatage,

NOTES ON PROPERTY
c. interest of recreation, Q: If neither permission nor investigation is sought before
d. navigation and the construction of dam, what would be the consequence of
e. salvage such action?
NOTE: There is no burden if for other purposes A: It would be deemed as if he has taken the law into his own
hands. Such action would amount to taking of property
Urban areas 3 meters without due process and the dam may be considered as a
Agricultural areas 20 meters private nuisance and it may be demolished.
Forest areas 40 meters
Art. 640. Compulsory easements for drawing water or for
2. easement of tow path on banks of navigable and watering animals can be imposed only for reasons of public
floatable rivers use in favor of a town or village, after payment of the
proper indemnity. (555)
For animals 2 meters
For pedestrians 1 meter Art. 641. Easements for drawing water and for watering
animals carry with them the obligation of the owners of the
Payment of indemnity servient estates to allow passage to persons and animals to
the place where such easements are to be used, and the
There can only be an indemnity if the land is a private one. indemnity shall include this service. (556)
Otherwise, if it is a public land, no right exists. If it is of
private ownership, the proper indemnity shall first be paid NOTE: This includes the accessory easement of passage or
before it is occupied. right of way of persons and animals to the place where the
easement is to be used.
NOTE: This article does not apply to canals.
Q: What are the easements covered by the article?
Art. 639. Whenever for the diversion or taking of water from
a river or brook, or for the use of any other continuous or A:
discontinuous stream, it should be necessary to build a dam, 1. for drawing of animals
and the person who is to construct it is not the owner of the 2. for watering of animals
banks, or lands which must support it, he may establish the 3. easement of right of way
easement of abutment of a dam, after payment of the
proper indemnity. (554) Q: What are the requisites?
Easement of abutment of a dam A:

1. imposed for reasons of public use;
Q: What is an easement of abutment of a dam? 2. in favor of a town or village;
3. the right must be sought not by an individual but by the
A: It is an easement for the constructio of the support of a town or village, thru its legal representative (Manresa)
dam for the diversion or taking of water from a river or brook 4. payment of proper indemnity (may be agreed by the
or for the use of any other continuous or discontinuous parties, otherwise the court will fix)
stream. 5. the right of way should have a maximum of 10 meters,
which cannot be altered by the owners of the servient
Q: What are the requisites? estate although the direction of the path may be
changed, provided the use of the easement is not
A: prejudiced (Manresa)
1. the one who wishes to build is not the owner of the land
or bank which would support the dam Easement of aqueduct
2. it should be for the purpsoe of diverting or taking of
water Art. 642. Any person who may wish to use upon his own
3. he must first obtain the permission of the riparian owner estate any water of which he can dispose shall have the
for the construction. If refused, he must request an right to make it flow through the intervening estates, with
administrative investigation to find out whether the the obligation to indemnify their owners, as well as the
constructio of a dam is essential owners of the lower estates upon which the waters may
4. payment of proper indemnity filter or descend. (557)
Art. 643. One desiring to make use of the right granted in

the preceding article is obliged:

NOTES ON PROPERTY
Requisites for use of easement of usufruct
(1) To prove that he can dispose of the water and that it is
sufficient for the use for which it is intended; Q: What are the requisites for the use of this right?
(2) To show that the proposed right of way is the most
convenient and the least onerous to third persons; A:
1. proof that he has the capacity to dispose of the
(3) To indemnify the owner of the servient estate in the water;
manner determined by the laws and regulations. (558) 2. proof that the water is sufficient for the use
intended;
Art. 644. The easement of aqueduct for private interest 3. show that the proposed right of way is the most
cannot be imposed on buildings, courtyards, annexes, or convenient and the least onerous to third persons;
outhouses, or on orchards or gardens already existing. (559) 4. pay indemnity to the owner of the servient estate
5. it cannot be imposed on existing building,
Art. 645. The easement of aqueduct does not prevent the courtyards, annexes, out-houses, orchard, or
owner of the servient estate from closing or fencing it, or gardens
from building over the aqueduct in such manner as not to 6. proper administrative permits are obtained (Art. 13,
cause the latter any damage, or render necessary repairs Water Code)
and cleanings impossible. (560)
Capacity to dispose
Art. 646. For legal purposes, the easement of aqueduct shall
be considered as continuous and apparent, even though the Any real party in interest may set-up an objection based on
flow of the water may not be continuous, or its use depends the fact that the person seeking the easement has no right to
upon the needs of the dominant estate, or upon a schedule the use of waters.
of alternate days or hours. (561)
Q: Who can apply for this right?
Q: What is aqueduct?
A: Only citizens of the Philippines of legal age or juridical
A: It is a conduit or artificial channel for the conduction of persons qualified by law to exploit natural resources may
water from a distance. apply for water permits
Q: What is an easement of aqueduct? Sufficient for the use intended
A: The right to make water flow thru intervening estates in The purpose should be indicated to determine sufficiency.
order that one may make use of said waters. The purpose may be for anything so long as it is lawful.
This is the right arising from a forced easement by virtue of Sufficiency is a relative term and must not be construed very
which the owner of an estate who desires to avail himself of literally.
water for the use of said estate may make such waters pass
thru the intermediate estate with the obligation of Proposed right of way is the most convenient and
indemnifying the owner of the same and also the owner of the least onerous
the estate to which the water may filter or flow.
The shotest distance is not necessarily that contemplated by
NOTE: The existence of right of way does not include the law.
easement of aqueduct.
Indemnity to the owner of the servient estate
Examples:
1. construction of open canal provided it is not dangerous Owners of the intervening land and owners of lower estates
and not very deep upon which waters may filter or descend.
2. construction of covered or closed canal
3. constructiin with tubes or pipes Q: How is the amount determined?
Q: How would you characterize easement of aqueduct? A: The amount usually depends on the duration and
inconvenience caused.
A: It is considered as continuous and apparent. It is
considered as continuous even though the flow of water may Cannot be imposed on existing building, courtyards,
not be continuous. annexes, out-houses, orchard, or gardens

NOTES ON PROPERTY
The easement may be constructed on roads. A: The Water Code prevails. However, the Civil Code shall
remain the prevailing law in case of conflict in the ff:
Q: Why is can’t the easement be imposed on the above- 1. establishment of easement of waters
mentioned places? 2. extent of easement of waters
3. form of easement of waters
A: If easement of aqueduct is allowed to burden the said 4. conditions of easement of waters provided these are
property, there would result an invasion of privacy. However, not expressly determined by the Water Code.
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.
SECTION 3. - Easement of Right of Way
Obligations of the dominant owner
Art. 649. The owner, or any person who by virtue of a real
1. keep the aqueduct in proper use and care right may cultivate or use any immovable, which is
2. keep necessary material for its use surrounded by other immovables pertaining to other
persons and without adequate outlet to a public highway, is
Q: May the servient owner still enclose with fence the entitled to demand a right of way through the neighboring
servient estate or even aver the aqueduct? estates, after payment of the proper indemnity.
A: Yes, provided the following are present: Should this easement be established in such a manner that
a. no damage is caused to the aqueduct its use may be continuous for all the needs of the dominant
b. repairs and cleaning do not become impossible estate, establishing a permanent passage, the indemnity
shall consist of the value of the land occupied and the
He can also construct works he may deem necessary to amount of the damage caused to the servient estate.
prevent damage to himself provided he does not impede or
impair the use of the easement; otherwise he shall be liable In case the right of way is limited to the necessary passage
for damages. for the cultivation of the estate surrounded by others and
for the gathering of its crops through the servient estate
Art. 647. One who for the purpose of irrigating or improving without a permanent way, the indemnity shall consist in the
his estate, has to construct a stop lock or sluice gate in the payment of the damage caused by such encumbrance.
bed of the stream from which the water is to be taken, may
demand that the owners of the banks permit its This easement is not compulsory if the isolation of the
construction, after payment of damages, including those immovable is due to the proprietor's own acts. (564a)
caused by the new easement to such owners and to the
other irrigators. (562) Concepts of right of way
Construction of stop lock or sluice gate Q: What are the 2 concepts of right of way?
Q: What are the requisites? A:

1. easement itself
A: 2. the strip of land used as a passageway
1. purpose must be for irrigation or improvement
2. the construction must be on the estate of another Q: What is right of way?
3. damages must be paid
4. third persons should not be prejudiced 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
Art. 648. The establishment, extent, form and conditions of therein, to reach the former’s estate, without an adequate
the servitudes of waters, to which this section refers, shall outlet to public rightway, subject to payment of indemnity.
be governed by the special laws relating thereto insofar as
no provision therefor is made in this Code. (563a) The right to demand that the owner of an estate surrounded
by other estates he allowed to pass thru the neighboring
Repealed by: estates after payment of proper indemnity.
Art. 52 (Water Code)
Q: Can easement of right of way be acquired by
Q: In case of conflict between the Water Code and the Civil prescription?
Code, which will prevail?
A: No, because it is discontinuous or intermittent

NOTES ON PROPERTY
Requisites for the easement of right of way NOTE: The isolation must not be due to the claimant’s own
act
Q: What are the requisites for this easement?
Ex: When he built enclosing walls
A:
1. The easement must be established at the point least Payment of indemnity
Prejudicial to the servient estate;
2. Claimant must be an Owner of enclosed immovable If the passage is continuous and permanent, the indemnity
or with real right; consists of the value of the land occupied plus the amount of
3. There must be no adequate Outlet to a public damages caused to the servient estate.
highway;
4. The right of way must be absolutely Necessary not If it is temporary, the indemnity consits of the payment of the
mere convenience; damage caused to the servient estate.
5. The isolation must not be Due to the claimant’s own
act; and The use before indemnity is not allowed.
6. There must be payment of proper Indemnity.
Q: Who should be the claimant of the right? In as much as an easement is legal or compulsory (there
being no access in the highway), not a mere voluntary
A: The claimant must be an owner of enclosed immovable or easement. Its existence does not depend on the consent of
with real right to cultivate and use the immovable. the powers.
Q: May a lessee demand such right? Where the certificate of title does not state that the
boundaries thereof have been determined, the only servitude
A: A lessee cannot demand such right unless the lease is which a privaye property is required to recognize in favor of
registered. The lessee should ask the lessor to demand the the government under Sec. 39 of PD.1529 is the easement of
easement from adjoining estates. a public highway, private highway established by law or any
governmental canal or lateral thereof. But in this case, it is
NOTE: The property must be surrounded by immovable necessary that the easement should have been previously
owned by others and there must be no adequate outlet to a established by law which implies that the same should have
public highway. been preexisting at the time of registration in order that the
owner may be compelled to respect it.
Q: Explain: “The right of way must be absolutely necessary.”
Where the easement is not pre-existing and it is soyght to be
A: The owner must show that there is a real, not fictituous or imposed after the land has been registered, proper
artificial necessity for the normal enjoyment of the property. expropriation proceedings should be had and just
Mere convenience is not enough to serve as basis for an compensation paid to the registered owner thereof.
easement of right of way.
Q: May the easement of right of way be acquired by
Q: What if the property is not the shortest way and will not prescription?
cause the least damage to the servient estate?
A: According to Sen. Tolentino, if the right of way is
A: The way which will cause the least damage should be used permanent and has an apparent sign it can be acquired by
even if it will not be the shortest. prescription. Since the land on which the servitude is situated
is susceptible of acquisition by prescritpion why can’t a
The easement of right of way shall be established at the point servitude which is less than ownership.
least prejudicial to the servient estate and where the distance
from the dominant estate to a public highway is the shortest. While others like Justice Paras and JBL Reyes believes that it
In case of conflict, the criterion of least prejudice prevails cannot because it is discontinuous or intermittent. The
over the criterion of shortest distance limitation on the servient owner’s right of ownership exists
only when the dominant owner actually crosses or passes
Q: What does “least prejudicial” mean in determining the
over the servient estate. Prescription requires that the
right of way?
possession be continuous or uninterrupted since the
A: It means it is the shortest way and the one which will dominant owner cannot be continually crossing the servient
cause the least damage to the property to the servient estate estate, but can do so only at intervals.
in favor of the dominant estate.

NOTES ON PROPERTY
Q: What are the different classifications of right of way?
Where the dominant owner was granted a footpath, he
A: cannot be denied the use of car. In the present age when
motor vehicles are vital necessary, a dominant proprietor has
1. Private- those established for the benefit of private a right to demand a driveway for his automobile and not a
individuals; and mere pathway for persons.
2. Public- one available to the general public. Art. 652. Whenever a piece of land acquired by sale,
exchange or partition, is surrounded by other estates of the
Proper indemnity vendor, exchanger, or co-owner, he shall be obliged to grant
a right of way without indemnity.
1. If the passege is permanent, that is, its use is
continuous for all the needs of the dominant estate, In case of a simple donation, the donor shall be indemnified
the indemnity is the equivalent of the value of the by the donee for the establishment of the right of way.
land occupied plus the amount of damage caused; (567a)
2. If the passaage is temporary, the use is only for a
certain period of time like: Rules when the land acquired is isolated
a. Limited passage necessary for cultivation; and 1. The isolation was due to the estate of the grantor (seller,
b. Passage of construction materials exchanger, or previous co-owner), he shall be obliged to
grant a right of way without indemnity; and
The indemnity shall consist of the amount of damages 2. However, if the act is simple donation, the donee is
caused. obliged to pay indemnity to the donor for the
establishment of easement of right of way.
Art. 650. The easement of right of way shall be established
at the point least prejudicial to the servient estate, and, Q: What is the reason behind the rule?
insofar as consistent with this rule, where the distance from
the dominant estate to a public highway may be the A: Since the transfer of land was by virtue of the liberality of
shortest. (565) the donor, it would be an abuse of enerosity to require the
donor to grant a right of way without indemnity.
Least prejudice v. shortest distance
Art. 653. In the case of the preceding article, if it is the land
Where the easement may be established on any several of the grantor that becomes isolated, he may demand a
tenements surrounding the dominant estate: right of way after paying a indemnity. However, the donor
shall not be liable for indemnity. (n)
1. The one where the way is the shortest; and
2. The one which will cause the least damage should be Rules when the land of the grantor become isolated
chosen.
1. The grantor may demand a right of way after paying the
But if the 2 circumstances do not concur in a single tenement, proper indemnity; and
the way which shall cause the least prejudice should be used, 2. If the grantor is a donor, he shall not be liable for
even if it will not be the shortest. indemnity. In this case, the liberality must be
reciprocated with liberality.
The criterion of least preejudice must prevail over the
criterion of shortest distance. Nature of easement under Art. 652 and 653
Art. 651. The width of the easement of right of way shall be The easements created are in a sense a voluntary easement
that which is sufficient for the needs of the dominant estate, because its proximate cause of creation is by the will of the
and may accordingly be changed from time to time. (566a) parties in view of the contract entered into. It is of course
compulsory in the sense that it hs to be granted, generally
Width of the pathway without indemnity.
The width of the pathway must be enough for the needs of Q: Andrew sold to Ben a parcel of land isolated by another
the dominant estate and may be accordingly changed from several estates owned by Andrew. Andrew gave an outlet
time to time as the needs of the dominant owner may change thru estate 1 without indemnity since the purchase price
but always subject to the rule that the rights of the servient presumably already included the right of easement. Later
owner are not abused. the outlet thru estate 1 became useless because the

NOTES ON PROPERTY
highway to which it led was closed. If Ben demands another A:
outlet, is he allowed to get a new one? If so, must he pay
indemnity. 1. When the dominant estate is joined with another
estate which is abutting a public road. The access
A: Yes, he can demand another outlet under Art. 649 (he being adequate and convenient; and
must therefor pay). He cannot take advantage of Art. 652 2. When a new road is opened giving access to the
because after all an outlet had already been granted. This isolated estate.
time the necessity arises not because of the sale becauese of
the necessity itself. Q: Is the extinguishment automatic or ipso facto?
Art. 654. If the right of way is permanent, the necessary A: No, extinguishement can only be effected upon the
repairs shall be made by the owner of the dominant estate. demand of the owner of the servient estate.
A proportionate share of the taxes shall be reimbursed by
said owner to the proprietor of the servient estate. (n) Return of the indemnity
Responsibility for repairs and taxes 1. If the right of way is permanent-upon the extinguishemnt
of the servitude, the owner of the servient estate is
This article applies only in case of permanent easement. obliged to return the amount of indemnity without
interest; and
Q: Who is liable for necessary repairs? 2. If the right of way is temporary-there is no need of
returning the indemnity. The indemnity paid has the
A: Owner is liable. nature of rentals in a lease contract which need not be
returned after the termination of the leaese.
Q: Who shall pay for the taxes?
Art. 656. If it be indispensable for the construction, repair,
A:Proportioanate share of the taxes shall be reimbursed by improvement, alteration or beautification of a building, to
the owner to the proprietor of the servent estate. carry materials through the estate of another, or to raise
therein scaffolding or other objects necessary for the work,
Q: What do you mean by “proportionate share”? the owner of such estate shall be obliged to permit the act,
after receiving payment of the proper indemnity for the
A: According to Dean Pineda, it shall be corresponding to the damage caused him. (569a)
area of the right of way which could be mathematically
computed by dividing the amount of the tax by the number of Temporary Easement of right of way
square hectares used as right of way.
Q: What does the word “owner” contemplate?
Art. 655. If the right of way granted to a surrounded estate
ceases to be necessary because its owner has joined it to A: “Owner” comprehends the usufructuary who may make
another abutting on a public road, the owner of the servient use of the right granted.
estate may demand that the easement be extinguished,
returning what he may have received by way of indemnity. Q: What do you mean by “improvement”?
The interest on the indemnity shall be deemed to be in
payment of rent for the use of the easement. A: “Improvement”, alteration or beautification are added to
make the rule comprehensive.
The same rule shall be applied in case a new road is opened
giving access to the isolated estate. Q: What does “indispensable” mean?
In both cases, the public highway must substantially meet A: “Indispensable” should not be construed in its literal
the needs of the dominant estate in order that the meaning. It is sufficient that great convenience, difficulty or
easement may be extinguished. (568a) expense would be encountered.
This article applies only to legal or compulsory right of way. It Art. 657. Easements of the right of way for the passage of
does not apply to voluntary easement because the existence livestock known as animal path, animal trail or any other,
of such easement is not affected by the existence of another and those for watering places, resting places and animal
outlet but the contract between the parties. folds, shall be governed by the ordinances and regulations
relating thereto, and, in the absence thereof, by the usages
Q: What extinguishes the easement of right of way? and customs of the place.

NOTES ON PROPERTY
Without prejudice to rights legally acquired, the animal path PARTY WALL CO-OWNERSHIP
shall not exceed in any case the width of 75 meters, and the Shares of co‐owners cannot Can be divided physically; a
animal trail that of 37 meters and 50 centimeters. be physically segregated but co‐owner cannot point to any
they can be physically definite portion of the
Whenever it is necessary to establish a compulsory identified property belonging to him
easement of the right of way or for a watering place for
animals, the provisions of this Section and those of Articles No limitation as to use of the None of the co‐owners may
640 and 641 shall be observed. In this case the width shall party wall for exclusive use the community property
not exceed 10 meters. (570a) benefit of a party for his exclusive benefit
because he would be
Right of way for the passage of livestock, watering places, invading on the rights of the
etc. others
Any owner may free himself Partial renunciation is
The easement shall be governed by the ordinances and from contributing to the cost allowed
regulations relating thereto, and in their absence, by the of repairs and construction of
usage and customs of the place. a party wall by renouncing
ALL his rights
Q: What are the special causes of extinguishment of right of
way? Art. 659. The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign, or proof to
A: the contrary:
1. The opening of a public road, or
(1) In dividing walls of adjoining buildings up to the point of
2. Joining the dominant tenement to another which has an
common elevation;
exit to a public road.
(2) In dividing walls of gardens or yards situated in cities,
towns, or in rural communities;
Q: Is said extinguishment automatic?
(3) In fences, walls and live hedges dividing rural lands. (572)
A: No. There must be a demand for extinguishment coupled
with tender of indemnity by the servient owner. Q: What are the presumptions (juris tantum) of existence of
a party wall?
SECTION 4. - Easement of Party Wall A:

1. in adjoining walls of building, up to common
Art. 658. The easement of party wall shall be governed by elevation
the provisions of this Title, by the local ordinances and 2. in dividing walls of gardens and yards (urban)
customs insofar as they do not conflict with the same, and 3. in dividing fences, walls and live hedges of rural
by the rules of co-ownership. (571a) tenements
4. In ditches or drains between tenements
Q: What is an easement of party wall?
Q: How is the presumption rebutted?
A: Refers to all those mass of rights and obligations
emanating from the existence and common enjoyment of A:
wall, fence, enclosures or hedges, by the owners of adjacent 1. Title
buildings and estates separated by such objects. 2. by contrary proof
3. by signs contrary to the existence of the servitude
Q: What is a party wall? (Arts. 660 & 661, NCC)
A: A common wall which separates two estates, built by Note: If the signs are contradictory, they cancel each other.
common agreement at the dividing line such that it occupies
a portion of both estates on equal parts. Art. 660. It is understood that there is an exterior sign,
contrary to the easement of party wall:
Q: Which is the servient estate?
(1) Whenever in the dividing wall of buildings there is a
A: The party wall itself is the servient estate. window or opening;
(2) Whenever the dividing wall is, on one side, straight and
Party wall v. Co-ownership plumb on all its facement, and on the other, it has similar

NOTES ON PROPERTY
conditions on the upper part, but the lower part slants or drains owned in common, shall be borne by all the owners
projects outward; of the lands or tenements having the party wall in their
(3) Whenever the entire wall is built within the boundaries favor, in proportion to the right of each.
of one of the estates;
(4) Whenever the dividing wall bears the burden of the Nevertheless, any owner may exempt himself from
binding beams, floors and roof frame of one of the contributing to this charge by renouncing his part-
buildings, but not those of the others; ownership, except when the party wall supports a building
(5) Whenever the dividing wall between courtyards, belonging to him. (575)
gardens, and tenements is constructed in such a way that
the coping sheds the water upon only one of the estates; Q: Who spends for the cost of repairs and construction of
(6) Whenever the dividing wall, being built of masonry, has party walls?
stepping stones, which at certain intervals project from the
surface on one side only, but not on the other; A: The part‐owners. They are obliged to contribute in
(7) Whenever lands inclosed by fences or live hedges adjoin proportion to their respective interests.
others which are not inclosed.
Q: May an owner refuse to contribute?
In all these cases, the ownership of the walls, fences or
hedges shall be deemed to belong exclusively to the owner A:
of the property or tenement which has in its favor the
presumption based on any one of these signs. (573) GR: Yes, any owner may free himself from the obligation to
contribute by renouncing his rights in the party wall.
Art. 661. Ditches or drains opened between two estates are
also presumed as common to both, if there is no title or sign XPN: When the party wall actually supports his building, he
showing the contrary. cannot refuse to contribute for the expenses or repair and
construction. (Art. 662, NCC)
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 XPN to XPN: If the owner renounces his part‐ownership of
on one side thereof, in which case the ownership of the the wall, in this case he shall bear the expenses of repairs and
ditch shall belong exclusively to the owner of the land work necessary to prevent any damage which demolition may
having this exterior sign in its favor. (574) cause to the party wall. (Art. 663, NCC)
The article mentions some exterior signs rebutting the Art. 663. If the owner of a building, supported by a party
presumption of a party wall. wall desires to demolish the building, he may also renounce
his part-ownership of the wall, but the cost of all repairs and
The wall becomes the exclusive property of the owner of the work necessary to prevent any damage which the
estate which has in its favor the presumption based on any of demolition may cause to the party wall, on this occasion
the exterior signs. only, shall be borne by him. (576)
Q: Is the enumeration exclusive? Q: What does “on this occasion only”mean?
A: The enumeration is merely illustrative and not exclusive. A: “On this occasion only” means that his liability for damages
is limited to those damages suffered simulateneously, during,
Q: What if there are external signs indicating ownership on or immediately after, and by reason of the demolition.
both sides of wall?
Art. 664. Every owner may increase the height of the party
A: If the external signs indicate ownership on both sides of wall, doing at his own expense and paying for any damage
the wall, attention should be directed to the comparative which may be caused by the work, even though such
quality or importance, rather than to the number of signs. damage be temporary.
Q: What if there is conflict between an external sign and The expenses of maintaining the wall in the part newly
title to the wall? raised or deepened at its foundation shall also be paid for by
him; and, in addition, the indemnity for the increased
A: When there is a contradiction between an external sign expenses which may be necessary for the preservation of
and a title to the wall, the title must prevail. the party wall by reason of the greater height or depth
which has been given it.
Art. 662. The cost of repairs and construction of party walls
and the maintenance of fences, live hedges, ditches, and

NOTES ON PROPERTY
If the party wall cannot bear the increased height, the Art. 667. No part-owner may, without the consent of the
owner desiring to raise it shall be obliged to reconstruct it at others, open through the party wall any window or aperture
his own expense and, if for this purpose it be necessary to of any kind. (580)
make it thicker, he shall give the space required from his
own land. (577) Q: State the reason for the above article?
Increasing the height of party wall 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
Q: What are the requisites so that the owner may increase wall; it would be an invasion of the right of the other part
the height of party wall? owners, inasmuch as each owner is entitled only to a
proportional use of the party wall.
A:
Q: What is an easement of light?
1. he must do so at his own expense;
2. he must pay any damage caused thereby even if the A: It is the right to admit light from the neighboring estate by
damage is temporary; virtue of the opening of a window or the making of certain
3. he must bear the cost of maintaining the portion openings.
added; and
4. he must pay the increased cost of preservation of Q: What is an easement of view?
the wall.
A: It is the right to make openings or windows, to enjoy the
He shall be obliged to reconstruct the wall at his expense if view through the estate of another and the power to prevent
necessary for the wall to bear the increased height and if all constructions or works which would obstruct such view or
additional thickness is required, he shall provide the space make the same difficult; it necessarily includes the easement
therefore from his own land. of light.
A person building a common wall must exercise such Q: Is it possible to have light only without view?
reasonable care as will render the inconvenience and loss to
his neighbor as small as practicable. A: Yes.
The additional thickness of the new wall must be placed on A window or opening in the dividing wall of buildings is an
the land of the person building it, but the foundation may exterior sign which rebuts the presumption that the wall is a
extend equally on each side from the center of the wall. party wall; one part owner may not, therefore, make any
window or opening of any kind thru a party wall without the
Art. 665. The other owners who have not contributed in consent of others.
giving increased height, depth or thickness to the wall may,
nevertheless, acquire the right of part-ownership therein, by Art. 668. The period of prescription for the acquisition of an
paying proportionally the value of the work at the time of easement of light and view shall be counted:
the acquisition and of the land used for its increased
thickness. (578a) (1) From the time of the opening of the window, if it is
through a party wall; or
Art. 666. Every part-owner of a party wall may use it in (2) From the time of the formal prohibition upon the
proportion to the right he may have in the co-ownership, proprietor of the adjoining land or tenement, if the
without interfering with the common and respective uses by window is through a wall on the dominant estate. (n)
the other co-owners. (579a)
PRESCRIPTIVE PERIOD FOR ACQUISITION OF EASEMENT OF
Each part-owner can use the party wall only in proportion to LIGHT AND VIEW
his interest. The extent of the right to use is thus made to
correspond to the extent of liability for repairs and Positive easement
construction provided for in Art. 662.
It is made thru a party wall or even if made on one’s own
wall, if the window is on a balcony or projection extending
over the property. A party wall is not for the opening of
SECTION 5. - Easement of Light and View 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

NOTES ON PROPERTY
of such opening; but there is no true easement as long as the of light has been acquired by prescription in which case the
right to prevent its use exists. servient owner may not impair the easement.
Under Article 668 par.1, the adjoining owner can order the The openings allowed by this article are for the purpose of
window closed within ten years from the time of the opening admitting light; hence they can be made only in the walls of
of the window. buildings.
Negative easement Q: What is a ceiling?
If the window is made through a wall on the dominant A: It is the part of the construction which covers the room
Estate in such a case, the ten year prescriptive period under it and certainly forms one of the essential parts of
commences from the time of the formal prohibition upon the every story of the building having several floors.
adjoining owner.
Q: What are joists?
The “formal prohibition” must be an instrument
acknowledged before a notary public. A: A horizontal timber that are placed upon the tops of the
uprights; beams; restrictions.
Art. 669. When the distances in Article 670 are not
observed, the owner of a wall which is not party wall, Art. 670. No windows, apertures, balconies, or other similar
adjoining a tenement or piece of land belonging to another, projections which afford a direct view upon or towards an
can make in it openings to admit light at the height of the adjoining land or tenement can be made, without leaving a
ceiling joints or immediately under the ceiling, and of the distance of two meters between the wall in which they are
size of thirty centimeters square, and, in every case, with an made and such contiguous property.
iron grating imbedded in the wall and with a wire screen.
Neither can side or oblique views upon or towards such
Nevertheless, the owner of the tenement or property conterminous property be had, unless there be a distance of
adjoining the wall in which the openings are made can close sixty centimeters.
them should he acquire part-ownership thereof, if there be
no stipulation to the contrary. The nonobservance of these distances does not give rise to
prescription. (582a)
He can also obstruct them by constructing a building on his
land or by raising a wall thereon contiguous to that having Art. 671. The distance referred to in the preceding article
such openings, unless an easement of light has been shall be measured in cases of direct views from the outer
acquired. (581a) 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
OPENINGS AT HEIGHT OF CEILING JOISTS TO ADMIT LIGHT view from the dividing line between the two properties.
(583)
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 Art. 672. The provisions of Article 670 are not applicable to
view. buildings separated by a public way or alley, which is not
less than three meters wide, subject to special regulations
and local ordinances. (584a)
Q: What are the restrictions for making an opening for light
and air? DIRECT AND OBLIQUE VIEWS
A: Q: What is a direct view?
1. the size must not exceed 30 centimeter square; A: It is that which is obtained from a wall parallel to the
2. the opening must be at the height of the ceiling boundary line, such that from the opening in such wall it is
joists or immediately under the ceiling; possible to see the adjoining tenement without the necessity
3. there must be an iron grating imbedded in the wall; of putting out or turning one's head side.
4. there must be a wire screen
Q: What is an oblique view?
If the wall becomes a party wall – a part owner can order the
closure of the opening because no part – owner may make an A: It is obtained from a wall at an angle with the boundary
opening through a party wall without the consent of the line; in order to see the adjoining tenement, it is necessary to
others; it can also obstruct the opening unless an easement turn one's head to the left or to the right.

NOTES ON PROPERTY
The title as used in Art. 673 refers to any of the modes of
When windows are opened at a distance less than that acquiring easements:
prescribed by this article from the boundary lines, they
constitute unlawful openings, and the owner who opened 1. Contract;
them may be ordered by the court to close them. 2. Will;
3. Donation; or
Q: What are the restrictions as to easement of views? 4. prescription
A: Whenever the easement of direct view has been acquired by

any such title, there is created a true easement. The owner
1. Direct Views: the distance of 2 meters between the wall of the servient estate cannot build thereon at less than a
and the boundary must be observed; and distance of three meters from the boundary line.
2. Oblique Views: (walls perpendicular or at an angle to the
boundary line) must not be 60 cm to the nearest edge of The distance may be increased or decreased by stipulation of
the window. the parties provided that in case of decrease, the minimum
distance of two meters or sixty centimeters prescribed in art.
Note: Any stipulation to the contrary is void (Art. 673, NCC). 670 must be observed, otherwise it is void. The said
distances involve considerations of public policy and the
While Article 671 provides the manner of measuring the general welfare; hence, they should not be rendered
distance, the distance for oblique view is much shorter ineffective by stipulation.
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 SECTION 6. - Drainage of Buildings
to the dividing line provided no window is opened as
provided in Art. 669. Art. 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the rain
Prescription may still be acquired as a negative easement water shall fall on his own land or on a street or public
after ten years fromthe time of notarial prohibition. 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
WHERE BUILDINGS SEPARATED BY A PUBLIC WAY such a way as not to cause damage to the adjacent land or
OR ALLEY tenement. (586a)
The distance provided in Art. 670 is not compulsory where EASEMENT OF DRAINAGE OF BUILDINGS
there is a public way or alley provided that it is not less than
three meters wide, the minimum width is necessary for the Q: What is an easement of drainage of buildings?
sake of privacy and safety.
A: It is the right to divert or empty the rain waters from one’s
Note: The width of the alley is subject to special regulations own roof or shed to the neighbor’s estate either drop by drop
and ordinances. or through conduits.
A private alley opened to the use of the general public falls The article does not really create servitude it merely regulates
within the provision of Art. 672. the use of one’s own property by imposing on him the
obligation to collect its rain water so as not to cause damage
Art. 673. Whenever by any title a right has been acquired to to his neighbors, even if he be a co –owner of the latter. It
have direct views, balconies or belvederes overlooking an provides an exception to art. 637 which obliges lower estates
adjoining property, the owner of the servient estate cannot to receive the waters which naturally flow from higher
build thereon at less than a distance of three meters to be estates.
measured in the manner provided in Article 671. Any
stipulation permitting distances less than those prescribed Note: This article does not establish servitude but merely
in Article 670 is void. (585a) regulates the use of one's property.
WHERE EASEMENT OF DIRECT VIEW HAS BEEN Art. 675. The owner of a tenement or a piece of land,
ACQUIRED subject to the easement of receiving water falling from
roofs, may build in such manner as to receive the water

NOTES ON PROPERTY
upon his own roof or give it another outlet in accordance
with local ordinances or customs, and in such a way as not In the absence of regulations, such precautions shall be
to cause any nuisance or damage whatever to the dominant taken as may be considered necessary, in order to avoid any
estate. (587) damage to the neighboring lands or tenements. (590a)
EASEMENT TO RECEIVE FALLING RAIN Art. 679. No trees shall be planted near a tenement or piece
WATERS of land belonging to another except at the distance
authorized by the ordinances or customs of the place, and,
The article deals not with a legal or compulsory easement, in the absence thereof, at a distance of at least two meters
but with a voluntary easement to receive rain water falling from the dividing line of the estates if tall trees are planted
from the roof of an adjoining building. It is an application of and at a distance of at least fifty centimeters if shrubs or
Art. 629. small trees are planted.
Art. 676. Whenever the yard or court of a house is Every landowner shall have the right to demand that trees
surrounded by other houses, and it is not possible to give an hereafter planted at a shorter distance from his land or
outlet through the house itself to the rain water collected tenement be uprooted.
thereon, the establishment of an easement of drainage can
be demanded, giving an outlet to the water at the point of The provisions of this article also apply to trees which have
the contiguous lands or tenements where its egress may be grown spontaneously. (591a)
easiest, and establishing a conduit for the drainage in such
manner as to cause the least damage to the servient estate, CONSTRUCTION AND PLANTINGS NEAR
after payment of the property indemnity. (583) FORTIFIED PLACES
EASEMENT GIVING OUTLET TO RAIN WATER WHERE HOUSE This article establishes an easement in favor of the State. The
SURROUNDED BY OTHER HOUSES general prohibition is dictated by the demands of national
security.
Q: What are the conditions for this easement?
CONSTRUCTION OF AQUEDUCT, WELL, SEWER. ETC.
A:
1. There must be no adequate outlet to the rain water Such constructions must comply with the distances
because the yard or court of a house is surrounded by prescribed by local regulations and customs of the place;
other houses;
2. The outlet to the water must be at the point where The owner must take necessary protective works or other
egress is easiest, and establishing a conduit for drainage; neighboring estates.
and
3. There must be payment of proper indemnity. The prohibitions in the article cannot be altered or renounced
by stipulations because they involve considerations of public
policy and general welfare.
SECTION 7. - Intermediate Distances PLANTING OF TREES

and Works for Certain Constructions and Plantings
The article establishes a negative easement. It provides the
Art. 677. No constructions can be built or plantings made minimum distances of trees and shrubs from the boundary
near fortified places or fortresses without compliance with line. They shall be regulated by the local ordinances and in
the conditions required in special laws, ordinances, and the absence thereof, by the customs of the place, and in
regulations relating thereto. (589) default thereof, by art, 679.
Art. 678. No person shall build any aqueduct, well, sewer, Q: What is the purpose of Art. 679?
furnace, forge, chimney, stable, depository of corrosive
substances, machinery, or factory which by reason of its A: The purpose of this article is to prevent the plantings from
nature or products is dangerous or noxious, without encroaching into the neighboring tenements.
observing the distances prescribed by the regulations and
customs of the place, and without making the necessary Art. 680. If the branches of any tree should extend over a
protective works, subject, in regard to the manner thereof, neighboring estate, tenement, garden or yard, the owner of
to the conditions prescribed by such regulations. These the latter shall have the right to demand that they be cut off
prohibitions cannot be altered or renounced by stipulation insofar as they may spread over his property, and, if it be
on the part of the adjoining proprietors. the roots of a neighboring tree which should penetrate into

NOTES ON PROPERTY
the land of another, the latter may cut them off himself Art. 682. Every building or piece of land is subject to the
within his property. (592) easement which prohibits the proprietor or possessor from
committing nuisance through noise, jarring, offensive odor,
INTRUSIONS OF BRANCHES OR ROOTS INTO smoke, heat, dust, water, glare and other causes.
NEIGHBORING ESTATE
Art. 683. Subject to zoning, health, police and other laws
The rights given to the adjoining owner by Article 680 do not and regulations, factories and shops may be maintained
prescribe where his inaction is by reason of mere tolerance provided the least possible annoyance is caused to the
unless a notarial prohibition is made in which case the neighborhood.
prescriptive period of a negative easement would begin to
run from the date of such prohibition. But the owner of the PROPRIETOR OR POSSESSOR OF LAND OR
plantings cannot destroy them and the adjacent owner has BUILDING PROHIBITED FROM COMMITTING
no cause to complain. NUISANCE
Q: Can the adjoining estate cut the roots and the branches Q: Is an easement against nuisance a positive or negative
without the consent of the owner of the tree? one?
A: Right to cut roots can be exercised without notice to the A: The Civil Code considers the easement against nuisance as
owner of the trees. But as to the branches, it is necessary to negative because the proprietor or possessor is prohibited to
ask that they be cut, and if the owner of the tree does not do do something which he could lawfully do were it not for the
so voluntarily, the court may authorize the neighboring existence of the easement. However, a nuisance involves any
owner to cut them. act or omission which is unlawful.
Q: Does this right prescribe? The above articles are more of a restriction on the right of
ownership than a true easement.
A: The right to cut does not prescribe so long as the owner
tolerates the branches and roots invading his tenement. But Q: What is a nuisance?
the moment the owner of the tenement demanded that the
branches be cut off and the owner of the tree refuses to do A: It is a class of wrongs which arise from unreasonable,
so, the prescription starts to run. unwarranted, or unlawful use by a person of his own
property, and which produces such material annoyance,
Art. 681. Fruits naturally falling upon adjacent land belong inconvenience, discomfort or harm that the law will presume
to the owner of said land. (n) a consequent damage.
Q: What is the basis of this article? The easement against nuisance is not an easement at all but a
restriction upon the ownership and not every limitation on
A: This is based on the principle of accession. the right of ownership is an easement.
FRUITS NATURALLY FALLING

UPON ADJACENT LAND
SECTION 9. - Lateral and Subjacent Support (n)
Q: Who owns the fruits which fall from the adjacent land?
Sec. 684. No proprietor shall make such excavations upon
A: Such fruits belong to the owner of the adjacent land to his land as to deprive any adjacent land or building of
compensate him for the inconvenience causes by the sufficient lateral or subjacent support.
branches of trees extending over his land. Note however that
for the adjacent owner to be entitled to the fruits they must Q: When is the support considered as lateral?
not only fall upon his land but the falling must occur
naturally. A: When both the land being supported and the supporting
land which are divided by a vertical plane.
Q: What if the fruits fall on a public property?
Q: What about subjacent?
A: If the fruits fall on public property, the owner of the tree
retains ownership. A: It is considered as subjacent when the supported land is
above the supporting land is beneath it.
SECTION 8. - Easement Against Nuisance (n)

NOTES ON PROPERTY
The excavator, instead of observing a sufficient distance to
permit the necessary lateral support of adjoining lot may A: Yes.
support the latter artificially.
In any case, the excavation should not deprive the adjacent
Q: What are the remedies for violation of this article? land or building of sufficient lateral or subjacent support.
A:
1. Action for damages- the action may be maintained CHAPTER 3

against anyone who causes the injury, whether he is VOLUNTARY EASEMENTS
the owner of the land or not;
2. Injunction- the injunctive relief will be granted if the Art. 688. Every owner of a tenement or piece of land may
acts done, or threatened to be done would be establish thereon the easements which he may deem
ruinous or irreparable or would impair the just suitable, and in the manner and form which he may deem
enjoyment of the property in the future. best, provided he does not contravene the laws, public
policy or public order. (594)
Art. 685. Any stipulation or testamentary provision allowing
excavations that cause danger to an adjacent land or Owner of lamd may constitute easement
building shall be void.
Since easement involves an act of strict dominium, only the
The reason behind sucj rule is that the same is contrary to owner or at least one acting in his name and under his
public policy. It may endanger not just property but also authority, may establish a voluntary easement.
human life.
However, a beneficial owner may establish a temporary
Art. 686. The legal easement of lateral and subjacent easement consistent with his right as such and subject to
support is not only for buildings standing at the time the termination upon
excavations are made but also for constructions that may be
erected. Q: When is an easement voluntary?
Art. 687. Any proprietor intending to make any excavation A: it is voluntary when it is established by the will of the
contemplated in the three preceding articles shall notify all owners.
owners of adjacent lands.
Q: Who may constitute voluntary easements?
Q: State the purpose of notice?
A: The owner possessing capacity to encumber property may
A: It is to enable the adjoining owners to take the necessary constitute voluntary servitude. If there are various owners, all
precautions to protect their lands and the building thereon. must consent; but consent once given is not revocable.
Although the person making the excavation has given notice, Art. 689. The owner of a tenement or piece of land, the
he is bound nevertheless to exercise reasonable care and skill usufruct of which belongs to another, may impose thereon,
in excavating on his land so as not to cause damage to the without the consent of the usufructuary, any servitudes
neighboring property. which will not injure the right of usufruct. (595)
The giving of the notice is just an additional precaution; it Where the property held in usufruct
does not have the force and effect of a substitute for and
does not absolve the excavator from the duty to exercise Q: May the owner of a property in usufruct may create
reasonable care to avoid injury to neighboring buildings. easements thereon without the consent of the
usufructuary?
Q: Is the notice required mandatory?
A: The owner of a property in usufruct may create easements
A: Yes except where there is actual knowledge of the thereon without the consent of the usufructuary provided
proposed excavation. the rights of the latter are not impaired.
PROPRIETOR PROHIBITED FROM MAKING Art. 690. Whenever the naked ownership of a tenement or
DANGEROUS EXCAVATIONS piece of land belongs to one person and the beneficial
ownership to another, no perpetual voluntary easement
Q: Does the limitation extend to future constructions?

NOTES ON PROPERTY
may be established thereon without the consent of both Q: How should abandonment be made to produce the
owners. (596) transmission of ownership over the tenement abandoned?
Creation of perpetual voluntary easement A: In order to produce the transmission of ownership over
the tenement abandoned, the abandonment or transfer must
Consent of both the naked owner and the beneficial owner is be made in the proper juridical form required for the
necessary transmission of ownership of immovable property.
Art. 691. In order to impose an easement on an undivided The article applies only where the owner of the servient
tenement, or piece of land, the consent of all the co-owners estate bound himself to bear the cost of the work required
shall be required. for the use and preservation of the easement.
He is bound to fulfill the obligation he has contracted. He may
The consent given by some only, must be held in abeyance free himself from obligation by renouncing or abandoning his
until the last one of all the co-owners shall have expressed property to the dominant owner.
his conformity.
In any case, it cannot be tacit or implied, it must follow the
But the consent given by one of the co-owners separately form required by law for the transmission of ownership of
from the others shall bind the grantor and his successors not real property
to prevent the exercise of the right granted. (597a)
Imposition of easement on undivided property

Title VIII. - NUISANCE (n)
The creation of a voluntary easement on property owned in
common requires the unanimous consent of all the co – Art. 694. A nuisance is any act, omission, establishment,
owners, because it involves an act of alteration and not business, condition of property, or anything else which:
merely an alienation of an ideal share of a co – owner. (1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
The consent may be given separately or successively. (3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any
Art. 692. The title and, in a proper case, the possession of an public highway or street, or any body of water; or
easement acquired by prescription shall determine the (5) Hinders or impairs the use of property.
rights of the dominant estate and the obligations of the
servient estate. In default thereof, the easement shall be Q: What is a nuisance?
governed by such provisions of this Title as are applicable
thereto. (598) A: Any:
1. act,
Q: How are voluntary easements created and what are the 2. omission,
governing rules for such? 3. establishment,
4. business or
A: 5. condition of property or
1. If created by title (contract, will, etc.), the title governs. 6. anything else which:
2. If acquired by prescription, it is governed by the a. Injures/dangers the health or safety of others
manner or form of possession. b. Shocks, defies or disregards decency or morality
c. Annoys or offends the senses
In both cases, the Civil Code will only apply suppletorily. d. Hinders or impairs the use of property or
Art. 693. If the owner of the servient estate should have NOTE: Art. 596 gives the statutory definition of nuisance in
bound himself, upon the establishment of the easement, to terms of that which causes the harm or damage, and not of
bear the cost of the work required for the use and the harm or damage caused.
preservation thereof, he may free himself from this
obligation by renouncing his property to the owner of the Q: Is negligence an ingredient for a nuisance?
dominant estate. (599)
A: Negligence is not an essential ingredient of nuisance but to
Where the servient owner bound himself to bear cost of be liable for nuisance, there must be resulting injury to
maintenance of easement another in the enjoyment of his legal rights.
Q: When are the rules on negligence applicable in nuisance?

NOTES ON PROPERTY
Q: What is decency?
A: It has been held that where the acts or omissions
constituting negligence are the identical acts which, it is A: It is proprietary of behavior or demeanor shown by respect
asserted give rise to a cause of action for nuisance, the and compliance with recognized notions of modesty and
rules applicable to negligence will be applied. delicacy.
NEGLIGENCE NUISANCE Q: What is morality?

Basis Liability is based on Liability attaches
lack of due diligence regardless of the A: It is the observance of what is right and the avoidance of
degree of care or skill what is evil.
exercised to avoid the
injury Ex: a house of prostitution
Abatement no action for Abatement is allowed in
abatement. Remedy some cases even Obstructs or interferes with the free passage of any public
is only action for without judicial highway or street, or any body of water
damages proceedings
Condition act complained was Continuing harm Any construction which are placed on roads, passage,
of the act already done which suffered by aggrieved highway, or body of water, to obstruct them is to defeat their
cause the injury party by the purposes as they are intended for transportation
maintenance of the act
or thing which Ex: sidewalk vendors, terminals, billboards
constitutes as nuisance
Hinders or impairs the use of property
Causes of nuisance
Anything which hinders or impairs the use of properties is a
Q: What are the causes of nuisance? nuisance.
A: Private propeties are the only ones covered.

Injures or endangers the health or safety of others
NUISANCE v. TRESPASS
Anything which tends or pose danger to the safery of a
person is a nuisance NUISANCE TRESPASS
consists of a use of one’s a direct infringement of
Even if crops or vegetation or other properties are damaged, property in such a manner as another’s right of property
is still nuisance. to cause injury to the
property or the right or
interest of another
consequential injury is direct and
immediate
Annoys or offends the senses Kinds of nuisance
The annoyance shall be judged by the effect they produce Q: What are the kinds of nuisance?
upon ordinary persons under normal circumstances, not by
their effect upon the over sensitive, the fastidious or the A:
discriminating.
1. According to the number of persons affected:
Neither they will be judged by their effect upon those who
are abnormally indiferent to such things nor those who have a. Public (or common) nuisance – is one which affects the
become accustomed and learned to endure them without community or neighborhood or considerable number of
any inconvenience. persons
b. Private nuisance – is one which affects an individual or few
Ex: pumping station which rendered a house uninhabitable persons only.
because of the noise produced.
2.Other classification of nuisance:
Shocks, defies or disregards decency or morality

NOTES ON PROPERTY
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 Nuisance per accidens
an act, occupation, or an act, occupation, or
A: One who maintains on his premises dangerous structure which is a nuisance structure, not a nuisance per
instrumentalities or appliances of a character likely to attract at all times and under any se, but which may become a
children in play, and who fails to exercise ordinary care to circumstances, nuisance by reason of
prevent children from playing therewith or resorting thereto, regardless of location or circumstances, location, or
is liable to a child of tender years who is injured thereby, surroundings. 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 As a matter of fact
2. Dangerous to children of tender years. Need only be proved in any Depends upon its location
locality and surroundings, the
Q: In what instance this doctrine not applicable? manner of its conduct or
other circumstances
A: The doctrine is generally not applicable to bodies of water, May be summarily abated May be abated only with
artificial as well as natural in the absence of some unusual under the law of necessity reasonable notice to the
condition or artificial feature other than the mere water and person alleged to be
its location. maintaining or doing such
nuisance
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 PUBLIC
One which violates only the doing of or the failure to
Q: Is a swimming pool an attractive nuisance? private rights and produces do something that injuriously
damage to but one or few affects safety, health, or
A: persons, and cannot be said morals of the public, or
to be works some substantial
GR: A swimming pool or water tank is not an attractive public annoyance, inconvenience,
nuisance, for while it is attractive, it is merely an imitation of or injury to the public
the work of nature. Hence, if small children are drowned in Affects the individual or a affects the public at large or
an attractive water tank of another, the owner is not liable limited number of individuals such of them as may come in
even if there be no guards in the premises. only contact with it
actionable, either for their indictable
XPN: Swimming pools with dangerous slides
abatement
or for damages, or both
Art. 695. Nuisance is either public or private. A public
nuisance affects a community or neighborhood or any
Q: May a nuisance be both public and private?
considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be
A: Yes, it is called mixed nuisance.
unequal. A private nuisance is one that is not included in the
foregoing definition.
Ex: A house washed on to a street railway track: private
nuisance to the railway company and a public nuisance
Old classification:
because it obstructs the street.
NOTES ON PROPERTY
Abatement and recovery of damages
Q: Can a lawful business be a nuisance?
The action to abate and the action to recover damages are
A: It may or may not be a nuisance depending upon the distinct remedies either or both of which the plaintiff may
particular circumstances in each case. If the conduct of the pursue at his election.
business or even its existence causes grave inconvennience
and discomfort to others, it is a nuisance. The owner of property abated as a nuisance is not entitled to
compensation unless he can show that the abatement is
Art. 696. Every successive owner or possessor of property unjustified.
who fails or refuses to abate a nuisance in that property
started by a former owner or possessor is liable therefor in Art. 698. Lapse of time cannot legalize any nuisance,
the same manner as the one who created it. whether public or private.
Liability of successor of property constituting a nuisance Effect of lapse of time
GR: Only the creator of a nuisance is liable for the damage GR: the right to bring an action to abate a public or private
resulting therefrom. nuisance is not extinguished by prescription.
However, since the injurious effect of a nuisance is a XPN: under the special rule of Art. 613 (2) which expressly
continuing one, every successive owner or possessor of prescribes that easements are extinguished by
property constituting a nuisance who fails or refuses to abate obstruction and non – user for ten years.
it, or permits its continuation has the same liablity as the one
who created it. Art. 699. The remedies against a public nuisance are:
Q: What should be done to render the person liable? (1) A prosecution under the Penal Code or any local
ordinance: or
A: To render him liable, it is necessary that he has actual (2) A civil action; or
knowledge of the existence of the nuisance and that it is (3) Abatement, without judicial proceedings.
within his power to abate the same.
Q: What are the remedies againts nuisance?
Q: What is the rule if there is a concurrent of act or
community of action? A:
A: If there be concurrent act or community of action in PUBLIC PRIVATE

producing injury, all who participated in the creation or Prosecution under RPC/ No criminal action;
maintenance of the nuisance are solidarily liable. local ordinance;
Civil action; Civil action;
Q: What if they acted independently? Abatement without judicia Abatement without judicia
proceedings. proceedings.
A: If two or more persons who create or maintain a private
nuisance act entirely independent of one another, and RPC has no specific provision punishing nuisnace as a criminal
without any community of interest, concert of action, or
offense, or as a felony. Yet, nuisnace may result from a
common design, each is liable only so far as his acts
felony; the accused will be proecuted for the specific crime
contribute to the injury.
punished by the RPC, an ordinance or special penal law, in
addition to an order for the destruction or demolition or
Q: When does the liability of the successor attaches?
removal of the nuisance.
A: Upon the taking of possession of the property and having
Q: In the prosecution of the public nuisance, is the question
knowledge of the existence of the nuisance, despite this of intent material?
knowledge he fails or refuses to remove or abate this
nuisance. He now becomes liable as if he was the one who
A: No, it is immaterial.
created it.
If the civil action or criminal action is pursued, the plaintiff
Art. 697. The abatement of a nuisance does not preclude the
can seek for a judgment directing the defendant to abate the
right of any person injured to recover damages for its past
nuisance by himself. If he fails it may be abated through a
existence. writ executed by the sheriff at his expense.

NOTES ON PROPERTY
Q: Is criminal prosecution available in case of private According to Dean Pineda, unless and until a private person
nuisance? has sustained a special and definite harm from a public
nuisance, and to him that public nuisance has become a
A: No, only for public nuisance. private nuisance, he has no cause of action against the
creator of the nuisance.
The defendant on conviction for maintaining a nuisance of a
continuing character, aside from being sentenced to a penalty Q: What is the nature of such action?
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 A: The action may be for injunction, abatement or for
sheriff requiring him to abate the nuisance at the cost of the damages.
prisoner.
GR: Public nuisance must be abated in the name of the State,
Q: Is the remedy of injunction available? or at the suit of some proper officer or body as an authorized
officer.
A: Yes, it may be applied if the indictable nuisance is pressing
or imminent. XPN: An individual who has suffered some special damage by
reason of public nuisance may bring such suit for its
Q: What is the basis for extra-judicial abatement? abatement.
A: It is valid in the exercise of police power. It is based on ROLE OF DISTRICT HEALTH OFFICER AND OTHERS WITH
necessity which must be present to justify its exercise. RESPECT TO PUBLIC NUISANCE
If property is destroyed or taken as a nuisance, the owner is The district health officer is charged with the duty to see to it
not entitled to compensation. And the municipality, officer or that one or all of the remedies against a public nuisance are
person destroying it is not liable for damages. availed of; He shall determine whether the third remedy is
the best remedy against a public nuisance.
Q: Under what instance can extra-judicial abatement be
applied? The remedy must be availed of only with the intervention of
the district health officer.
A: It can only be applied if what is abated is a nuisance per se
and NOT nuisance per accidens. Q: What is the effect of failure to comply with Art. 720? Is
that a ground for the award for damages?
Art. 700. The district health officer shall take care that one
or all of the remedies against a public nuisance are availed A: No.
of.
Note: Art. 702 does not empower the district officer to abate
Art. 701. If a civil action is brought by reason of the a public nuisance to the exclusion of all other authorities.
maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor. Q: How to commence the action?
Art. 702. The district health officer shall determine whether A: The action must be commenced by the city or municipal
or not abatement, without judicial proceedings, is the best mayor; but a private person may also file an action if the
remedy against a public nuisance. public nuisance is especially injurious to him.
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 RIGHT OF PRIVATE PERSON TO FILE AN ACTION ON
action to eliminate a public nuisance. By way of exception, a ACCOUNT OF A PUBLIC NUISANCE
private person is authorized to file a suit to abate a public
nuisance, provided that he has suffered a particular harm or A private person may also file a civil action if the public
injury and such harm is different from the harm caused to the nuisance is especially injurious to him. Accordingly, such
public it should be “specifically injurious to him.” nuisance becomes to him a private nuisance affecting him in
a special way different from that sustained by the public in
In such case, the nuisance is treated as private nuisance. general.

NOTES ON PROPERTY
Art. 704. Any private person may abate a public nuisance
which is specially injurious to him by removing, or if Q: Distinguish Art 703 and 704?
necessary, by destroying the thing which constitutes the
same, without committing a breach of the peace, or doing A: The former refers to the filing of the action by a private
unnecessary injury. But it is necessary: person against a public nuisance while Art. 704 refers to an
abatement of a public nuisance specially injurious to him
(1) That demand be first made upon the owner or possessor without judicial proceedings.
of the property to abate the nuisance;
(2) That such demand has been rejected; Q: How could abatement be done?
(3) That the abatement be approved by the district health
officer and executed with the assistance of the local police; A:
and
(4) That the value of the destruction does not exceed three 1. By removing the thing which constitutes nuisance;
thousand pesos. and
2. By destroying the thing without disturbing the peace
CONDITIONS FOR EXTRAJUDICIAL ABATEMENT OF A PUBLIC of the community, or doing unnecessary injury.
NUISANCE
Art. 705. The remedies against a private nuisance are:
The article states what may be done in abating a public or
private nuisance: the party injured may remove and if (1) A civil action; or
necessary, destroy the thing which constitutes the nuisance, (2) Abatement, without judicial proceedings.
without committing a breach of the peace, or doing
unnecessary damage. Only private rights are violated by the nuisnace. A private
nuisance only affects a few persons.
Q: Does the law require prior giving notice to the owner of
the nuisance? Estoppel applied in nuisance
A: Yes, there is a necessity of giving notice to such person in A person who consented, permitted, acquiscence in the
order to enable him to abate the nuisance himself. construction of a building and aware of the purposes for
which it was established, is estopped from asserting that the
Q: What are the requisites for the extra-judicial abatement structure is a nuisance against him.
of public nuisance?
Art. 706. Any person injured by a private nuisance may
A: abate it by removing, or if necessary, by destroying the thing
which constitutes the nuisance, without committing a
1. Must be specifically injurious to the person affected; breach of the peace or doing unnecessary injury. However,
2. No breach of peace or unnecessary injury must be it is indispensable that the procedure for extrajudicial
committed; abatement of a public nuisance by a private person be
3. Demand have been first made upon the owner or followed.
possessor of the property to abate the nuisance;
4. It may be exercised only in cases of urgent or REMEDIES AGAINST A PRIVATE NUISANCE
extreme necessity;
5. The summary abatement should be resorted to The remedies provided for in the article are the same as the
within a reasonable time; remedies against a public nuisance except for the absence of
6. After knowledge of the nuisance is acquired; the first remedy of criminal prosecution.
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 Right to damages
police;
11. Property must not be destroyed unless it is really This remedy includes the reparation for past injuries and not
necessary to do so; an authority to continue the wrong.
12. Rights must always be exercised with the assistance
of the local police; and
13. Value of destruction does not exceed P3000.00.

NOTES ON PROPERTY
Where the nuisance was created or maintained intentionally,
willfully, or maliciously, exemplary or punitive damages may
be allowed. Title IX. - REGISTRY OF PROPERTY
Available defenses Art. 708. The Registry of Property has for its object the
inscription or annotation of acts and contracts relating to
a. Public necessity- under the pressure of public the ownership and other rights over immovable property.
necessity what would otherwise constitute a (605)
nuisance may be inflicted upon certain members of
the community; Q: What is the Registry of Property or Register of Deeds?
b. Estoppel;
c. Impossibility of abatement; and A: It is the agency of government stationed in every province
d. Non-existence of the nuisance. or cities headed by a register of deeds under the supervision
of the Land Registration Authority and the Department of
Q: Is legal title necessary to enable to maintain a suit? Justce.
A: Ownership of the legal title is not necessary to enable one It is the public repository of records of public documents
to maintain a suit to prevent a threatened nuisance which affecting the title to lands in the provinces or city where the
would disturb him in the peaceable use and possession of lands are located.
property on which he resides.
Q: What do you mean by registration?
Art. 707. A private person or a public official extrajudicially
abating a nuisance shall be liable for damages: A: It means the entry made in a book or public registry of
deeds.
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by the courts to Q: What is the purpose of registration?
be not a real nuisance.
A: The purpose of registration is merely to notify and protect
LIABILITY FOR DAMAGES IN CASE OF the interests of strangers to a given transaction, who may be
EXTRAJUDICIAL ABATEMENT OF NUISANCE ignorant thereof, and the non-registration of the deed
evidencing such transaction does not relieve the parties
The article provides for two grounds to hold a private or thereto of their obligations thereunder.
public official extrajudicially abating a nuisance liable for
damages Registration is useless when what is registered is insufficient
to grant such right as in the case of fictitious or simulated
Q: What is the purpose of this article? sale.
A: It serves the dual purpose of providing a sort of deterrent NOTE: Register may refer to:
against the improvident or unreasonable resort to the a. the act of recording or annotating
remedy by unscrupulous parties and at the same time affords b. the book of registry
the victim a civil remedy to recover damages without c. the office concerned
prejudice to such other remedies granted by law. d. the official concerned
Q: How much should be given as damages? Q: What is the object of registry?
A: The amount of damages will depend on the evidence of A: It is the inscription and annotation of acts and contracts
the property owner or possessor of the thing. relating to the ownership and other rights over immovable
property.
Q: What are the remedies available?
Proceedings for registration of lands are IN REM
A: He may go to court for the determination of the status of
the property. He may ask for the following: A proceeding in rem dealing with a tangible res may be
a. Replevin instituted and carried to judgment without personal service
b. injunction (sale, destruction) upon claimants within the State or notice by name to those
c. recover proceeds outside of it, and not encounter any provision of either
d. damages constitution. Jurisdiction is secured by the power of the court
over the res.

NOTES ON PROPERTY
Art. 710. The books in the Registry of Property shall be
Q: What is the remedy of the registrar refuse to inscribe public for those who have a known interest in ascertaining
document? the status of the immovables or real rights annotated or
inscribed therein. (607)
A: The aggrieved party may request a formal order of denial
and forthwith file a consulta with the LRA. POWER OF REGISTER OF DEEDS AS
CUSTODIAN OF REGISTRY BOOKS
Q: What is consulta?
The Register of Deeds has inherent power to control the
A: It is a kind of appeal to the LRA. The fact that the matter is office and the records under his custody and has some
in consulta will be inscribed on the title involved. The effect discretion to exercise as to manner in which persons desiring
of this inscription will be binding on the third persons in the to inspect, examine, or copy the records may exercise their
event that the consulta is resolved in favor of the registrant. rights; carry with it the power to prohibit, except perhaps,
when it is clear that the purpose of the examination is
Art. 709. The titles of ownership, or of other rights over unlawful.
immovable property, which are not duly inscribed or
annotated in the Registry of Property shall not prejudice It is not the prerogative of registration officers having custody
third persons. (606) of records to see that the information which the records
contain is not flaunted before public gaze;
Q: Who are third persons?
If it be wrong to publish the contents of the records, it is the
A: It refers to persons who are not parties to the act, contract legislature and not the officials having custody thereof which
or deed. is called upon to devise a remedy.
Q: What is the effect of actual knowledge? Q: What do you mean by public?
A: It is equivalent to registration it binds such person to the A: It is an all inclusive term. It covers every person whose
act. purpose of examinaion of a recorded act or transaction is not
unlawful or arises from a sheer idle curiosity.
Q: In case of conflict between an unrecorded Deed of Sale of
prior date and a recorded Real Estate Mortgage of the latter NOTE: Interested parties may secure upon payment of the
date, which shall prevail? required fee, certified true copies of titles and other records
in the registry.
A: The unrecorded Deed of Sale.
The register or his representative may also be subpoenad to
Effects of registration appear and testify in court and bring certain titles and other
related documents.
Q: What are the effects of registration?
Art. 711. For determining what titles are subject to
A: inscription or annotation, as well as the form, effects, and
1. operates as constructive notice; cancellation of inscriptions and annotations, the manner of
2. does not validate or cure defective instrument; keeping the books in the Registry, and the value of the
3. cannot bind property where it is legally ineffective; entries contained in said books, the provisions of the
4. does not vest title Mortgage Law, the Land Registration Act, and other special
laws shall govern. (608a)
Effect of lack of registration
“Other special laws” may include special laws governing the
Q: What is the effect of lack of registration? registration of movable property in a registry office
A: The purpose of registration is merely to notify and protect Ex:

the interests of strangers to a given transaction, but the non- a. Chattel Mortgage Law,
registration of the deed evidencing such transaction does not b. the Ship Mortgage Decree and
relieve the parties of their obligation thereunder. c. the Land Transportation and Traffic Code.
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. BOOK III

NOTES ON PROPERTY
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
opportunity for the existence of a real right; meantime only a Subjects
personal right exists. Definite active subject There is an active subject
(owner). (creditor). There is a definite
MODE TITLE passive subject (debtor).
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
existence; Enforceability
Cause; Means; Enforceable against the Enforceable only against the
whole world. original debtor.
Proximate cause; Remote cause;
Extinguishment
The essence of the right The means whereby that
which is to be created or essence is transmitted, Extinguished by loss or Not extinguished. Claim for
transmitted. destruction. damages may still be
instituted.
Example: In a contract of sale, the sale is the title by the
virtue of such title buyer may now compel delievery from the Q: What are the different modes of acquiring ownership?
seller. It is the delivery or tradition which transfers
ownership. Tradition is a mode. A:
In succession, the title is the mode. Hereditary rights are 1. occupation;

transferred from the moment of death of the decedent. 2. law;
Delivery is not a condition precedent to transfer of 3. donation;
4. tradition as a consequence of a certain contracts;

NOTES ON PROPERTY
5. intellectual creation;
6. prescription; and As a consequence of certain contracts like sale, barter,
7. succession. assignment, simple loan or mutuum.
Q: What are the different modes of acquiring other real Tradition alone does not confer ownership but a
rights? consequence of contract comleted by tradition or delivery.
A: NOTE: Not all contracts may result in the transmission of

ownership like deposit or commodatum.
1. law;
2. donation; 1. Real tradition- actual or physical delivery if it is
3. tradition as a consequence of a certain contracts; personal property. If realty is involved then actual
4. prescription; and delivery is manifested by actual entry or occupying
5. succession. the land.
Q: What are the classification of modes of acquiring 2. Constructive tradition

ownership?
a. Traditio symbolica- parties make use of a token or
A: symbol to represent the thing delivered
b. Traditio longa manu-by mere pointing of a property
1. original modes- independent of any pre-existing or with consent of the parties if the thing sold cannot
preceding title or right of another: be transferred to the possession of the vendee at
the time of the sale
a. occupation c. Traditio brevi manu- when the vendee already has
b. intellectual creation possession of the thing sold by virtue of another title
c. acquisitive prescription d. Traditio constitutum possessorium- when the
vendor continues in possession of the thing sold not
2. derivative modes- those which arise of are dependent as owner but in some other capacity
upon pre-existing or preceding title or right of title of e. Quasi-tradition- exercise of the right of the grantee
another person: with the consent of the grantor
f. Tradicion por ministerio de la ley- delivery by
a. donation operation of law
b. succession g. Tradition by public instrument
c. extinctive prescription
d. tradition as a consequence of certain contracts Requisites of constructive delivery
Q: Is registration a mode of acquirng ownership? Q: What are the requisites for a constructive delivery?
A: No. it cannot confer ownership. A:

1. Right transmiyyed should have previosly existed in
Q: Is accession a mode of acquiring ownership? the patrimony of grantor
2. Transmisison should be by just title
A: No because it presupposes previous ownership of the 3. Grantor and grantee should have intention and
principal thing. capacity to transmit and acquire
4. Transmission should be manifested by some act
LAW which should be physical, symbolical or legal.
Law as a mode of acquiring ownership should be interpreted Prescription

to apply to situations where ownership is vested
independently of the other modes of acquisition. Q: What is prescription?
Art. 445- improvements on the land of another; A: It is a mode of acquiring ownership and other real rights
Art. 447-alluvium; through the mere lapse of time and under conditions laid
Art. 461- abandoned river beds; and down by law.
Art. 681-falling fruits into the tenement of another.
TRADITION

NOTES ON PROPERTY
Q: What are the 2 kinds of prescription? 2. which must be a Corporeal personal property,
3. which must be Susceptible of appropriation by nature
Acquisitive Extinctive 4. The thing must be Without an owner
Expressly vest the property Merely a statute of limitaion, 5. There must be an Intention to appropriate.
and raises a new title in the it does nothing more than
occupant bar the right of action of a Q: Distinguish occupation from possession.
previous owner
The act of the processor is The previous owner’s neglect A:
the cause is the cause
OCCUPATION POSSESSION
Q: Is the acquisition of ownership or other real rights As regards acquisition of ownership
through prescription retroactive? Mode of acquiring ownership Merely raises the
presumption of ownership
A: Yes. Once the period is completed, the new owner is when exercised in the
considered as having acquired the thing or right from the concept of owner
moment the period began. As to prpoperty involved
Involves only corporeal Any kind of property
Modes of extinguising ownership personal property
As regards ownership of the thing by another
a. Absolute extinguishment Requires that the object be The property may be owned
1. Physical loss or destruction without an owner by somebody
2. Legal loss As regards the intent to acquire
There must be an intent to May be had in the concept of
b. Relative –only when certain persons for others may acquire ownership a mere holder
acquire their ownership As regards possession
1. Law May not take place w/o May exist w/o occupation
2. Succession some form of possession
3. Tradition As to period
4. Donation Short duration Generally longer
5. Abandonment
As to leading to another mode of acquisition
6. Destruction of the prior title or right
Cannot lead to another mode May lead to another mode‐
(fulfillment of resolutory condition, rescission,
of acquisition prescription
annulment, expropriation)
7. Prescription
Q: What are the kinds of property acquired by occupation?
A:
1. Animals that are the object of hunting and fishing
Title I. - OCCUPATION 2. Hidden treasures-only if there is no known owner
thereof. This is possible only if there is no known owner
Art. 713. Things appropriable by nature which are without thereof. This is possible only if the treasure is founding
an owner, such as animals that are the object of hunting and places or things without owners.
fishing, hidden treasure and abandoned movables, are 3. Abandoned movbles- a thing is abandoned when:
acquired by occupation. (610) a. The expectation to recover is gone (spes
recuperandi)
Q: What is occupation? b. The intent to return or have it returned is given up
(spes rivertandi)
A: Acquisition of ownership by seizing corporeal things that
have no owner, made with the intention of aquiring them, Art. 714. The ownership of a piece of land cannot be
and accomplished according to legal rules (Sanchez Roman). acquired by occupation. (n)
It is a unilateral act through the material apprehension of a
thing which is limited to those without an owner. Q: What is the reason for this?
Q: What are the requisites of occupation? A: When the land is without an owner, it pertains to the State
following the Regalian Doctrine.
A:
Q: What is the rule as to abandoned land?
1. There must be Seizure of a thing,

NOTES ON PROPERTY
A: According to Sen. Tolentino, an absurdity may arise from a
literal interpretation of this article. Lands privately owned ans Occupation of a swarm of bees
abandoned subsequently will perpetually become res nullius,
even the state cannot acquire them by occupation. The owner of a swarm of bees that went to another'’ land
Technically, they could not be acquired by prescription shall lose ownership if he has not pursued the same within
because prescription presupposes the extinguishment of a two consecutive days after it left his property, or after
pre-existing right which is not present in abandoned pursuing the same, he ceases to do so within the same
property. period. In such a case, the possessor or owner of the land
may occupy or retain the bees
Since the Code Commission inserted this article on the
supposition that when land is abandoned, it pertains tp the Occupation of domesticated animals
State. Unlike other jurisdiction, in the Philippines, there is no
law to the effect that private lands abandoned by its owners A domesticated animal which has not strayed or been
automatically revert back to the State. abandoned cannot be acquired by occupation by a person to
whose custody it was entrusted. Neither does the provision
J. Paras: This article is applicable to lands belonging to the apply to a case where a person has found a domestic animal
State without private owners and those previosuly owned but and kept it for a number of years not knowing its owner. The
subsequently abandoned as implied from the express word of period of two days and twenty days are not periods of
the law. No absurdity may arise because privately owned limitation, but conditions precedent to recovery.
lands reverted back to the State become the patrimonial
property of the State which is susceptible of acquisition Art. 717. Pigeons and fish which from their respective
through acquisitive prescription. breeding places pass to another pertaining to a different
owner shall belong to the latter, provided they have not
Q: Distinguish prescription from occupation. been enticed by some article of fraud. (613a)
A: Occupation of pigeons and fish

PRESCRIPTION OCCUPATION
Derivative mode—somebody Oringinal mode-no previous The article does not refer to wild pigeons and fish in a state of
else was the owner owner liberty or that live naturally independent of man.
Longer period of possession Shorter period
is required Their occupation is regulated by special laws on hunting and
fishing. What is contemplated here are pigeons and fish
Art. 715. The right to hunt and to fish is regulated by special considered as domesticated animals subject to the control of
laws. (611) man in private breeding places.
The special law which regulates hunting to protect animal life Art. 718. He who by chance discovers hidden treasure in
are Act No. 2590 as amended by Act. No. 3770, Act. No. 4003 another's property shall have the right granted him in article
and C.A. No. 491. 438 of this Code. (614)
On the other hand, the special Law governing fishing is P.D. Q: What is the rule as regards the finder when 2 or more
No. 704 otherwise known as the Fisheries Decree of 1975. strangers are involved?
Hunting and fishing may be regulated by a municipal A: The one who actually struck the thing (ground or anything)
corporation or local government unit under a provision of law or found the spot, whilch exposed the treasure to view is the
or authority granted by Congress, being in this case a finder.
delegation of the State’s authority to the corporation.
The discovery of the hidden treasure must be by chance-
there must be no deliberate inrtention or design to search for
Art. 716. The owner of a swarm of bees shall have a right to the treasure.
pursue them to another's land, indemnifying the possessor
of the latter for the damage. If the owner has not pursued Q: What is the rule if the finder is given an express
the swarm, or ceases to do so within two consecutive days, permission by the owner to search?
the possessor of the land may occupy or retain the same.
The owner of domesticated animals may also claim them A: The finder is not entitled to the shre in the treasure unless
within twenty days to be counted from their occupation by the parties so stipulated.
another person. This period having expired, they shall
pertain to him who has caught and kept them. (612a)

NOTES ON PROPERTY
Q: What is the rule if the finder is given an express
permission by the owner to make an investigtaion? Q: What are the duties of the finder?
A: If treasure is found he is not covered by Art. 718 because A:

the discovery was not by chance.
1. If the previous possessor is known-return it to the
Q: Is the finder entitled to anything for his services? previous possessor, who need not be the owner.
2. If he does not know its previous possessor-
A: There are 2 views on the matter: immediately deposit it with the mayor of the city or
municipality where the thing was found.
1. The permission is to be interpreted to be a renunciation
of the right of the land owner and so the finder gets all. Q: In such case, what is the duty of the mayor?
According to Sen. Tolentino, while the finding is not by
chance the finder should be given a share on the basis of A: The mayor must in turn publicly announce the finding in
implied contract or principle of unjust enrichment; and the manner he may deem best (newspaper, tv
2. According to Dean Pineda, there must first be a announcement).
distinction:
Preservation of the thing
If the finder was engaged for the investigation of the propety
for a fee, then he shall receive only the amount stipulated If the thing can be kept without deterioration- the mayor
because the contract is the law between the parties. must keep it in custody until the previous possessor appears
in time to claim the property or until it is awarded to the
If there is no contract then, the law on unjust enrichment is finder.
applicable leaving to the court the reasonable value of the
work done by the finder. If the thing cannot be kept without deterioration- it should be
sold at public auction 8 days after the publication following
Art. 719. Whoever finds a movable, which is not treasure, the publication of the intended auction sale.
must return it to its previous possessor. If the latter is
unknown, the finder shall immediately deposit it with the Award of the finder
mayor of the city or municipality where the finding has
taken place. If the owner or possessor did not appear after 6 months-
there being an implied abandonment- the thing found or the
The finding shall be publicly announced by the mayor for value of its proceeds if there was auction sale shall be
two consecutive weeks in the way he deems best. awarded to the finder deducting the expenses for publication.
If the movable cannot be kept without deterioration, or Q: What if the owner has appeared?
without expenses which considerably diminish its value, it
shall be sold at public auction eight days after the A: The finder shall receive the award under Art. 720 which is
publication. 1/10 of the sum price of the thing found.
Six months from the publication having elapsed without the Q: What is the consequence of violating the article?
owner having appeared, the thing found, or its value, shall
be awarded to the finder. The finder and the owner shall be A: The finder shall be guilty of the crime of theft.
obliged, as the case may be, to reimburse the expenses.
(615a) The obligation to return is not limited to the first finder, it
extends to the successor who has knowledge of the finding.
Q: What is a lost thing?
Art. 720. If the owner should appear in time, he shall be
A:It is the one previously under the lawful possession and obliged to pay, as a reward to the finder, one-tenth of the
control of a person but is now without any possessor. sum or of the price of the thing found. (616a)
However, it is not abondoned property.
Q: What is the obligation of the owner who appeared?
Finder’s keeper law (U.S.)
A:
The finding of the movable may be by chance or by search as
the law did not make any distintion, unlike in hidden 1. To give reward to the finder-amounting to the 1/10
treasure. of the sum or value of the thing;

NOTES ON PROPERTY
2. To reimburse the finder-of the necessary expenses
for the preservation and location of the thing; The contents of letters are objects of a right of intellectual
3. To reimburse the expenses for publication. property, in the same manner as any product of the mind.
Art. 724. Special laws govern copyright and patent. (429a)
Title II. - INTELLECTUAL CREATION
Art. 721. By intellectual creation, the following persons Title III. - DONATION
acquire ownership:
CHAPTER 1
(1) The author with regard to his literary, dramatic, NATURE OF DONATIONS
historical, legal, philosophical, scientific or other work;
(2) The composer; as to his musical composition; Art. 725. Donation is an act of liberality whereby a person
(3) The painter, sculptor, or other artist, with respect to the disposes gratuitously of a thing or right in favor of another,
product of his art; who accepts it. (618a)
(4) The scientist or technologist or any other person with
regard to his discovery or invention. (n) Q: How is donation perfected?
State policy A: It is perfected from the moment the donor knows of the
acceptance by the donee (Article 734). Once a donation is
Section 13. The State shall protect and secure the exclusive accepted, it cannot be revoked without the consent of the
rights of scientists, inventors, artists, and other gifted donee except on grounds provided by law.
citizens to their intellectual property and creations,
particularly when beneficial to the people, for such period Q: What are the requisites for a valid donation?
as may be provided by law. (Sec. 13, Art XIV, The 1987
Constitution) A:
Art. 722. The author and the composer, mentioned in Nos. 1 1. Donor must have the capacity to make the donation;
and 2 of the preceding article, shall have the ownership of 2. He must have donative intent (animus donandi);
their creations even before the publication of the same. 3. There must be delivery in certain cases;
Once their works are published, their rights are governed by 4. Donee must accept or consent to the donation during
the Copyright laws. the lifetime of the donor and of the donee in case of
donation inter vivos; whereas in case of donation mortis
The painter, sculptor or other artist shall have dominion causa, acceptance is made after donor’s death because
over the product of his art even before it is copyrighted. they partake of a will.
The scientist or technologist has the ownership of his Q: Is acceptance necessary?

discovery or invention even before it is patented. (n)
A: Yes, it is necessary to make the donation effective.
Art. 723. Letters and other private communications in
writing are owned by the person to whom they are Q: Who makes the acceptance?
addressed and delivered, but they cannot be published or
disseminated without the consent of the writer or his heirs. A: It may be made by the donee himself or thru an agent with
However, the court may authorize their publication or special power of attorney otherwise, donation shall be void.
dissemination if the public good or the interest of justice so
requires. (n) Q: What is the reason behind the above rule?
Dual interests or property rights in the letter: A: The donee may not want to accept the donor’s liberality or
if the donation is onerous, he may not agree with the burden
1. Intellectual property , consisting of thoughts and the imposed.
ideas and their form of expression contained in the
letter; Q: What is the effect of donation made to an unborn child?
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.

NOTES ON PROPERTY
A: Donations made to conceived and unborn children may be
accepted by persons who legally represent them if they were A:
already born (Art. 742).
1. Donee must reserve sufficient means for his support
Q: What is the effect of donation made to incapacitated and for his relatives who are entitled top be
persons? supported by him;
2. Donation cannot comprehend future property
A: Donations made to incapacitated persons shall be void except future husband and wife (Art. 84 of the
though simulated under the guise of another contract or thru Family Code); and
a person who is interposed. 3. No person may give bby way of donation more than
what he may give by will.
Kinds of donation
Art. 726. When a person gives to another a thing or right on
1. According to the time of taking effect account of the latter's merits or of the services rendered by
him to the donor, provided they do not constitute a
a. Inter vivos- those which take effetc during the lifetime of demandable debt, or when the gift imposes upon the donee
the donor; and a burden which is less than the value of the thing given,
b. Mortis causa- those which take effect only upon the there is also a donation. (619)
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;
b. A: Those whose consideratuin and purpose is to remunerate
st
c. Remuneratory (of the 1 kind of pure renumeratory)- the past benefitsm merits, merits, services, alrady rendered by
purpose is to reward past services with no strings the donee to the donor, provided, the same does not
attached. The services do not constitute a demandable constitute a demandable debt.
debt. The form shall be that of donations regardless of
the value of the past services compared to the value of Q: What do you mean by “not demandable debt”?
the donation;
A: It means services rendered did not create any obligation
nd
d. Remuneratory (of the 2 kind) modal donations- the enforceable against the donor.
purpos is to:
Ex: a person who has saved another from drowning
c.1 reward future services; or
c.2 because of future charges or burdens to be imposed Modal donations
on the donee.
Q: What are modal donations?
The value of the future services, charges or burdens is
less than the value of the donation. The form shall follow A: They are donations which impose a charge or a burden on
the form of contracts if it is onerous but if the same is the donee. The mode or burden is a mere restriction on the
simple, they shall follow the form of donations. benefit conferred upon the donee. It does not affect the
rights of the donee.
Note: Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not Q: What is a mode?
imposed.
A: It is the charge or burden imposed in a modal donation
e. Conditional donations- donations which are subject to which is lesser than the value of the thing donated.
certain conditions the fulfillment or non-fulfillment of
which affect the rights of the donee; and Art. 727. Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not
f. Onerous donations- the burdens, charges or services are imposed. (n)
equal in value to that of the donation. This is not really
donation and the form follows that of contracts. Effect of Illegal or impossible conditions
Q: What are the limitations upon property which may be

donated inter vivos?

NOTES ON PROPERTY
1. When condition is not deemed imposed- the rule on The fact that the event happens or the condition is fulfilled
testamentary disposition is followed. The donation is after the donor’s death does not change the nature of the act
considered simple. as a donation inter vivos.
2. When donation rendered void- being contractual in
nature, the rule applicable would be found in art. 1183 The exception is when the donor really intended that the
donation should take effect after his death.
Art. 728. Donations which are to take effect upon the death
of the donor partake of the nature of testamentary Art. 731. When a person donates something, subject to the
provisions, and shall be governed by the rules established in resolutory condition of the donor's survival, there is a
the Title on Succession. (620) donation inter vivos. (n)
Art. 729. When the donor intends that the donation shall
take effect during the lifetime of the donor, though the
property shall not be delivered till after the donor's death,
this shall be a donation inter vivos. The fruits of the
property from the time of the acceptance of the donation,
shall pertain to the donee, unless the donor provides
otherwise. (n) DONATION INTER VIVOS SUBJECT TO A
RESOLUTORY CONDITON
Inter vivos v. Mortis causa
A donation subject to a resolutory condition takes effect
INTER VIVOS MORTIS CAUSA immediately but shall become inefficacious upon the
Takes effect independently Takes effect upon death of happening of the event which constitutes the condition.
of the donor’s death donor
Title conveyed to the donee Title conveyed upon donor’s Even if the donation is subject to the resolutory condition of
before donor’s death death the donor’s survival, the donation is still inter vivos.
Generally irrevocable during Always revocable
donor’s lifetime Art. 732. Donations which are to take effect inter vivos shall
Must comply with the Must comply with the be governed by the general provisions on contracts and
formalities required by Arts. formalities required by law obligations in all that is not determined in this Title. (621)
748 and 749 of the Code for the execution of wills
Acceptance during donor’s Acceptance should ne made Donations inter vivos are donations of property that are not
lifetime after donor’s death mortis causa. They include the simple, remunerative, modal
Donor’s tax is payable Estate tax is payable and onerous, whether or not subject to any condition or
term.
In case of doubt the conveyance shall be deemed an inter
vivos rather than mortis causa, in order to avoid uncertainty Art. 733. Donations with an onerous cause shall be
as to the ownership of the property subject of a deed. governed by the rules on contracts and remuneratory
donations by the provisions of the present Title as regards
The nature of donation is not determined by the title given to that portion which exceeds the value of the burden
it by the donor but by what is expressed therein. imposed. (622)
Art. 730. The fixing of an event or the imposition of a RULES GOVERNING ONEROUS DONATIONS OR
suspensive condition, which may take place beyond the ONEROUS PORTIONS OF DONATIONS
natural expectation of life of the donor, does not destroy
the nature of the act as a donation inter vivos, unless a 1. Alienations by onerous title such as sale, may be
contrary intention appears. (n) considered a donation to the extent that the value of the
thing sold exceeds the price paid;
DONATION INTER VIVOS SUBJECT TO 2. The article makes the rules of contract directly applicable
SUSPENSIVE CONDITION to onerous donations and remuneratory donations as to the
onerous portions therof;
The article contemplates a situation where the donor intends 3. The remuneratory donations referred to by the article are
the donation to take effect during his lifetime but he imposes the modal donations or those which impose “upon the donee
a suspensive condition which may or may not take place a burden which is less than the value of the thing given”; as
beyond his lifetime. regards that portion which exceeds the value of the burden, it
shall be governed by the provisions on donations;

NOTES ON PROPERTY
4. Modal donations are to be distinguished from the NOTE: If donation is made by a person with restricted
remuneratory donations proper which consist of those made capacity, then, it is voidable because the consent of the
in consideration of services rendered by the donee to the donor is defective.
donor;
5. Thereis no burden imposed on remuneratory donations; For natural persons, he should be at the age of majority. On
6. If a burden is imposed, it becomes onerous as regards the the other hand, for juridical persons, the same must be
value of the burden. authorized under its articles to donate.
Art. 734. The donation is perfected from the moment the Q: May an unborn child be a donee? A donor?
donor knows of the acceptance by the donee. (623)
A: An unborn child may be a donee but not a donor.
PERFECTION OF DONATION
As a donee, donations made to conceived and unborn
1. Necessity of acceptance- must be made during the lifetime children may be accepted by those persons who would legally
of the donor; represent them if they were already born.
2. Notice of acceptance – perfection takes place, not from the
time of acceptance by the donee but from the time it is made NOTE: If the conceived child did not become a person, the
known, actually or constructively, to the donor; donation is null and void. An unborn child cannot be a donor
3. Revocation before perfection – once it is perfected it because it is essential for a person to be able to make a
cannot be revoked without the consent of the donee except donation, he must have full civil capacity.
on grounds provided by law;
4. If the donor revokes the donation before learning of the Art. 736. Guardians and trustees cannot donate the
acceptance by the donee, there is no donation. property entrusted to them. (n)
DONATION BY A GUARDIAN OR TRUSTEE

OF WARD’S PROPERTY
CHAPTER 2
PERSONS WHO MAY GIVE OR RECEIVE A DONATION 1. Where donation is simple:
Art. 735. All persons who may contract and dispose of their Guardians and trustees cannot be donors of their ward’s
property may make a donation. (624) properties for the simple reason that they are not the owners
of the same.
Q: What are the requirements to be a donor?
2. Where donation is onerous:
A: The article requires that the donor must have both the:
a. capacity to contract and; The prohibition, however, is not absolute; with respect to the
b. the capacity to dispose of his property in order that trustee, donation is permitted notwithstanding that the
he may make a donation trustee receives nothing in exchange directly, if the donation
is onerous and is beneficial to the benefiaciary,
Q: What is the reason for this?
Art. 737. The donor's capacity shall be determined as of the
A: Donation inter vivos are contractual in nature and are time of the making of the donation. (n)
mode of alienation of property. Moreover, it is a mode of
alienation of property. Q: When is the possession of capacity to contract by the
donor determined?
Q: Explain the concept of capacity under this article.
A: His capacity shall be determined as of the time of the
A: Capacity shall be determined as of the time of the making making of donation. (Art. 737, NCC)
of donation. Making of donation shall be construed to mean Note: Making of donation shall be construed to mean
perfection. perfection.
Q: What is the rule with regard the done? Art. 738. All those who are not specially disqualified by law
therefor may accept donations. (625)
A: All those who are not specially disqualified by law
therefore may accept donations. 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

NOTES ON PROPERTY
(6) Maltreatment of the testator by word or deed, by the child or
descendant;
a. Those disqualified under Art. 739
b. Alien corporations as donee of lands (7) When a child or descendant leads a dishonorable or disgraceful life;
Art. 739. The following donations shall be void: (8) Conviction of a crime which carries with it the penalty of civil
interdiction. (756, 853, 674a)
(1) Those made between persons who were guilty of Art. 920. The following shall be sufficient causes for the disinheritance of
adultery or concubinage at the time of the donation; parents or ascendants, whether legitimate or illegitimate:
(2) Those made between persons found guilty of the same
(1) When the parents have abandoned their children or induced their
criminal offense, in consideration thereof;
daughters to live a corrupt or immoral life, or attempted against their
(3) Those made to a public officer or his wife, descedants virtue;
and ascendants, by reason of his office.
(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;
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; (3) When the parent or ascendant has accused the testator of a crime for
and the guilt of the donor and donee may be proved by which the law prescribes imprisonment for six years or more, if the
preponderance of evidence in the same action. (n) accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery or

DONATIONS VOID ON MORAL GROUNDS concubinage with the spouse of the testator;
Q: What is the reason for this disqualifications? (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;
A: The article is based on considerations of morality and
public policy. The prohibitions mentioned in the article apply (6) The loss of parental authority for causes specified in this Code;
to testamentary provisions and to life insurance.
(7) The refusal to support the children or descendants without justifiable
cause;
NOTE: The term wife in the 3rd paragraph shall be
interpreted to mean spouse so as to include the husband. (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. 2012 provides that “any person who is forbidden from
Art. 921. The following shall be sufficient causes for disinheriting a spouse:
receiving any donation under Art. 739 cannot be named (1) When the spouse has been convicted of an attempt against the life of
beneficiary of a life insurance policy by the person who the testator, his or her descendants, or ascendants;
cannot make any donation to him, according to said article.”
(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
Art. 740. Incapacity to succeed by will shall be applicable to found to be false;
donations inter vivos. (n)
(3) When the spouse by fraud, violence, intimidation, or undue influence
cause the testator to make a will or to change one already made;
ABSOLUTE DISQUALIFICATION
(4) When the spouse has given cause for legal separation;
Art. 1028. The prohibitions mentioned in article 739, concerning donations
inter vivos shall apply to testamentary provisions. (n) (5) When the spouse has given grounds for the loss of parental authority;
Art. 919. The following shall be sufficient causes for the disinheritance of (6) Unjustifiable refusal to support the children or the other spouse. (756,
children and descendants, legitimate as well as illegitimate: 855, 674a)
Art. 919.
(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;
RELATIVE INCAPACITY
(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 Art. 1027. The following are incapable of succeeding:
accusation has been found groundless;
(1) The priest who heard the confession of the testator during his last
(3) When a child or descendant has been convicted of adultery or illness, or the minister of the gospel who extended spiritual aid to him
concubinage with the spouse of the testator; during the same period;
(4) When a child or descendant by fraud, violence, intimidation, or undue (2) The relatives of such priest or minister of the gospel within the fourth
influence causes the testator to make a will or to change one already made; degree, the church, order, chapter, community, organization, or institution
to which such priest or minister may belong;
(5) A refusal without justifiable cause to support the parent or ascendant
who disinherits such child or descendant; (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

NOTES ON PROPERTY
provision made by the ward in favor of the guardian when the latter is his Art. 742. Donations made to conceived and unborn children
ascendant, descendant, brother, sister, or spouse, shall be valid;
may be accepted by those persons who would legally
(4) Any attesting witness to the execution of a will, the spouse, parents, or represent them if they were already born. (627)
children, or any one claiming under such witness, spouse, parents, or
children; DONATIONS TO CONCEIVED AND
UNBORN CHILDREN
(5) Any physician, surgeon, nurse, health officer or druggist who took care
of the testator during his last illness;
The article applies both to simple and onerous donations. The
(6) Individuals, associations and corporations not permitted by law to acceptance must be made by those persons who would
inherit. (745, 752, 753, 754a)
legally represent them if they are already born.
Art. 1032. The following are incapable of succeeding by reason of
unworthiness: Q: What are the requisites for a valid donation to an
unborn?
(1) Parents who have abandoned their children or induced their daughters
to lead a corrupt or immoral life, or attempted against their virtue;
A:
(2) Any person who has been convicted of an attempt against the life of the 1. the child be born alive later (if it had a normal intra
testator, his or her spouse, descendants, or ascendants; uterine life)
2. or that the child, after being born alive, should live for at
(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 least 24 hours (if it had an intra uterine life of less than 7
found groundless; months). Otherwise, if the child never possessed juridical
personality, there beong no donee, the donation is null
(4) Any heir of full age who, having knowledge of the violent death of the
and void.
testator, should fail to report it to an officer of the law within a month,
unless the authorities have already taken action; this prohibition shall not
apply to cases wherein, according to law, there is no obligation to make an Art. 743. Donations made to incapacitated persons shall be
accusation; void, though simulated under the guise of another contract
or through a person who is interposed. (628)
(5) Any person convicted of adultery or concubinage with the spouse of the
testator;
DONATIONS TO INCAPACITATED PERSONS
(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;
The incapacity refers to persons specially disqualified by law
(7) Any person who by the same means prevents another from making a to become donees, such as those referred to in arts. 739 and
will, or from revoking one already made, or who supplants, conceals, or 740.
alters the latter's will;
Donations to such persons are void even if simulated under
(8) Any person who falsifies or forges a supposed will of the decedent. (756,
673, 674a) the guise of another contract or through an intermediary.
Art. 1033. The cause of unworthiness shall be without effect if the testator Art. 744. Donations of the same thing to two or more
had knowledge thereof at the time he made the will, or if, having known of
different donees shall be governed by the provisions
them subsequently, he should condone them in writing. (757a)
concerning the sale of the same thing to two or more
Art. 741. Minors and others who cannot enter into a contract may become different persons. (n)
donees but acceptance shall be done through their parents or legal
representatives. (626a)
DONATIONS OF THE SAME THING TO
DIFFERENT DONEES
DONATIONS TO MINORS AND OTHERS WITHOUT “DOUBLE DONATION”
CAPACITY TO CONTRACT
The article expressly makes applicable by analogy the rules on
The article does not make any distinction. If the reason for sales of the same thing to two or more different vendees.
requiring acceptance through the parents or legal
representative is the lack of capacity of the donee to give Like in instances of double sale, Article 1544 applies in case of
consent, it is clear that the donee may not validly accept a double donation.
donation although it imposes no burden.
Q: When is there double donation?
In any case, when a formal or written acceptance is required
by the donor, such acceptance must be made by the parents A: When the same thing has been donated to two or more
or legal representative. persons.
Q: What is the rule in case of a double donation?

NOTES ON PROPERTY
Requisites:
A: The rule on double sale under Article 1544 shall be
applicable: 1. acceptence is made through the parents, legal
representative, or authorized agent of the donee;
a. Movable – Owner who is first to possess in good faith 2. the property donated is immovable;
3. the acceptance is not made in the same deed of
b. Immovable – donation but in as separate public instrument.
1. First to register in good faith The requirement of notification of the donor and notation in
2. No inscription, first to possess in good faith both instruments that such notification has been made is
3. No inscription & no possession in good faith – necessary for the validity and perfection of the donation.
Person who presents oldest title in good faith
Art. 748. The donation of a movable may be made orally or
Justice Vitug & Dean Navarro: This provision is problematic in writing.
as the Civil Code Commission failed to remember that
donation is different form sale. And that the attempt to An oral donation requires the simultaneous delivery of the
donate the property for the second time around, the donor thing or of the document representing the right donated.
would have no right to effect donation as he is no longer the
owner of the property. If the value of the personal property donated exceeds five
thousand pesos, the donation and the acceptance shall be
Art. 745. The donee must accept the donation personally, or made in writing, otherwise, the donation shall be void.
through an authorized person with a special power for the (632a)
purpose, or with a general and sufficient power; otherwise,
the donation shall be void. (630) FORMALITIES FOR DONATION OF
MOVABLES
Q: What are the rules for the donation of movable

properties?
BY WHOM ACCEPTANCE IS MADE
A:
A valid donation once accepted becomes irrevocable except 1. value of property exceeds P5,000- the donation and
on such grounds provided by law such as inofficiousness, the acceptance must always be made in writing. The
failure of the donee to comply with charges imposed in the donation and the acceptance need not be made in a
donations or by reason of ingratitude. public instrument. Nor is it necessary that the
acceptance be made in the same deed of donation.
Art. 746. Acceptance must be made during the lifetime of 2. value of property is P5, 000 or less- - it may be made
the donor and of the donee. (n) orally or in writing. If made orally, there must be
simultaneous delivery of the thing or of the
Q: What is the reason for the provision? document representing the thing donated. If made
in writing, the donation is valid although there is no
A: The donation is personal between the donor and the simultaneous delivery.
donee(Code Commission).
Art. 749. In order that the donation of an immovable may be
Q: What if the donor dies before he learns of the valid, it must be made in a public document, specifying
acceptance? therein the property donated and the value of the charges
which the donee must satisfy.
A: If the donor dies before he learns of the acceptance, the
donation does not take effect. The acceptance may be made in the same deed of donation
or in a separate public document, but it shall not take effect
Art. 747. Persons who accept donations in representation of unless it is done during the lifetime of the donor.
others who may not do so by themselves, shall be obliged to
make the notification and notation of which Article 749 If the acceptance is made in a separate instrument, the
speaks. (631) donor shall be notified thereof in an authentic form, and
this step shall be noted in both instruments. (633)
DUTY OF PERSON WHO ACCEPTS IN
REPRESENTATION OF THE DONEE FORMALITIES FOR DONATION OF
IMMOVABLES

NOTES ON PROPERTY
The donation shall be inofficious in all that it may exceed
The article does not apply to onerous donations which are this limitation. (636)
governed by the rules on obligations and contracts. The
provision applies where the donation imposes upon the done RESERVATION OF SUFFICIENT MEANS FOR
a burden which is less than the value of the thing given SUPPORT OF DONOR AND RELATIVES
because it requires that the public document must specify the
value of the charges that the donee must satisfy A donor may donate all his present property or part threof
provided he reserves sufficient property in ownership or in
Q: What are the rules for the donation of immovable usufruct for the support of himself and of all relatives who
properties? are entitled to be supported by him at the time of the
perfection of the donation.
A:
1. Donation and acceptance are in the same Q: What properties may be donated?
instrument
a. must be in a public instrument or document A: The donation may cover all present property of the donor.
b. the instrument must specify the property donated Present property refers to property of the donor which he
and the charges, if any, which the donee must satisfy could dispose of at the time of the donation.
2. donation and acceptance are in separate Q: What is the standing of the donation where the donor did
instruments not reserved property or assets for himself sufficient for his
support and all his relatives legally dependent upon him?
a. must be in a public instrument or document;
b. the instrument must specify the property donated A: It is valid. It is merely reducible to the extent that the
and the charges, if any, which the donee must support to himself and his relatives is impaired or prejudiced.
satisfy;
c. the acceptance by the donee must be in a public Q: What do you mean by “present property”?
document;
d. it must be done during the lifetime of the donor; A: “Present property” means property which the donor can
e. the donor must be notified in authentic form of the rightfully dispose at the time of the donation.
acceptance of the donation in a separate
instrument; Q: What are the exceptions to this?
f. the fact that such notification has been made must
be noted in both instruments A:
1. donation mortis causa,
2. donation propter nuptias, and
3. onerous donations
CHAPTER 3
EFFECT OF DONATIONS AND LIMITATIONS THEREON Q: May future properties be donated?
Art. 750. The donations may comprehend all the present A: No. The donor is not yet the owner of said property. A
property of the donor, or part thereof, provided he reserves, person cannot give what he does not own.
in full ownership or in usufruct, sufficient means for the
support of himself, and of all relatives who, at the time of NOTE: Future inheritance is future property, but not all future
the acceptance of the donation, are by law entitled to be property is future inheritance. Future inheritance like future
supported by the donor. Without such reservation, the property cannot be disposed of by donation. However,
donation shall be reduced in petition of any person affected. accrued inheritance, even if not yet delivered, may be
(634a) alienated by the heir because hereditary rights are
transmitted from the moment of the death of the decedent.
Art. 751. Donations cannot comprehend future property. (Art. 777, NCC)
By future property is understood anything which the donor Q: What do you mean by relatives?
cannot dispose of at the time of the donation. (635)
A: The law states relatives at the time of the acceptance but
Art. 752. The provisions of Article 750 notwithstanding, no this really refers to relatives at the time knowledge of the
person may give or receive, by way of donation, more than acceptance for before such knowledge, there has been no
he may give or receive by will. perfection as yet of the donation.

NOTES ON PROPERTY
Q: What is support? 1. donation to spouses, or
2. otherwise provided by the donor
A: Comprises of everything indispensable for subsistence,
dwelling, clothing, medical attendance, and transportation in Art. 754. The donee is subrogated to all the rights and
keeping with the capacity of the family. actions which in case of eviction would pertain to the donor.
The latter, on the other hand, is not obliged to warrant the
Q: What is the basis for this? things donated, save when the donation is onerous, in
which case the donor shall be liable for eviction to the
A: concurrence of the burden.
1. The claims of the donor’s own family should not be
disregarded The donor shall also be liable for eviction or hidden defects
2. The father of a big family should reserve an amount in case of bad faith on his part. (638a)
sufficient for those he may be called upon to support.
3. If a donor is a person who earns sufficient income from 1. The donee is subrogated to all the rights and actions
his profession, he need not reserve. which in case of eviction would pertain to the donor;
2. If the donation is simple or remunerative, the donor is
Payment of existing obligations not liable for eviction or hidden defects, because the
donation is gratuitous;
Aside from the reservation of support, the donor must also 3. even if the donation is simple or remunerative, the donor
reserve enough of his property to pay off his debts is liable for eviction or hidden defects in case of bad faith
contracted before donations, otherwise, there is a on his part;
presumption that the donation was made to defraud 4. if the donation is onerous, the donor is liable on his
creditors. warranty but only to the extent of the burden.
AMOUNT OF DONATION, LIMITED TO WHAT Eviction

DONOR MAY GIVE BY WILL
Whenever by final judgment based on a right prior to the sale
Article 752 makes applicable to donations the limitation on or donation or an act imputable to the vendor or donor, the
testamentary disposition with respect to the amount thereof. vendee or donee is deprived of the whole or of a part of the
The provision means that a person may not donate more thing purchased.
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 Hidden defects
give by will, otherwise the donation shall be inofficious and
shall be reduced with regard tothe excess. Those which are not patent upon a physical examinations of
the object donated.
The limitation applies when the donor has forced or
compulsory heirs. But the limitation is enforceable only after Warranty exists when
the death of the donor because it is only then when it can be
determined whether or not the donation is inofficious. 1. the donor is in bad faith;
Therefore, the donation is valid during the lifetime of the 2. the donation is onerous;
donor. 3. if warranty is expressly made;
4. if donation is propter nuptias unless the contrary is
Art. 753. When a donation is made to several persons stipulated.
jointly, it is understood to be in equal shares, and there shall
be no right of accretion among them, unless the donor has Art. 755. The right to dispose of some of the things donated,
otherwise provided. or of some amount which shall be a charge thereon, may be
reserved by the donor; but if he should die without having
The preceding paragraph shall not be applicable to made use of this right, the property or amount reserved
donations made to the husband and wife jointly, between shall belong to the donee. (639)
whom there shall be a right of accretion, if the contrary has
not been provided by the donor. (637) DONATION WITH RIGHT TO DISPOSE OF
PART OF OBJECT DONATED, RESERVED
NOTE: Donation is presumed to be in equal shares
The donor may reserve the right to dispose of some of the
General rule: there is no Accretion in donation things or part of the thing donated or some amount or
income thereof. The donation is actually conditional, and the
XPNS:

NOTES ON PROPERTY
condition is fulfilled if the donor dies without exercising the the value of the donation received, unless the contrary is
right he reserved, either by acts inter vivos or mortis causa. intended.
Art. 756. The ownership of property may also be donated to 2. where there is no stipulation regarding the payment of
one person and the usufruct to another or others, provided debts:
all the donees are living at the time of the donation. (640a)
The donee is generally not liable to pay the donor’s debts. He
When one person receives the usufruct, it is understood that is responsible therefor only if the donation has been made in
the other donee receives only the naked ownership, not the fraud of creditors which is always presumed when, at the
full ownership. time of the donation, the donor has not left sufficient assets
to pay his debts.
Art. 757. Reversion may be validly established in favor of
only the donor for any case and circumstances, but not in He is not liable beyond the value of the donation received.
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 CHAPTER 4

person in violation of what is provided in the preceding REVOCATION AND REDUCTION OF DONATIONS
paragraph shall be void, but shall not nullify the donation.
(614a) Art. 760. Every donation inter vivos, made by a person
having no children or descendants, legitimate or legitimated
DONATION WITH PROVISION FOR by subsequent marriage, or illegitimate, may be revoked or
REVERSION reduced as provided in the next article, by the happening of
any of these events:
The donor may provide for reversion, whereby the property (1) If the donor, after the donation, should have legitimate
donated shall “go back” to the donor or some other person. or legitimated or illegitimate children, even though they be
posthumous;
Art. 758. When the donation imposes upon the donee the (2) If the child of the donor, whom the latter believed to be
obligation to pay the debts of the donor, if the clause does dead when he made the donation, should turn out to be
not contain any declaration to the contrary, the former is living;
understood to be liable to pay only the debts which appear (3) If the donor subsequently adopt a minor child. (644a)
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) Q: To what kind of donations this article apply?
Art. 759. There being no stipulation regarding the payment A: This article applies to all donation inter vivos and not to
of debts, the donee shall be responsible therefor only when mortis causa.
the donation has been made in fraud of creditors.
Q: What is the reason for this article?
The donation is always presumed to be in fraud of creditors,
when at the time thereof the donor did not reserve A: The reason for the article is that the law presumes that the
sufficient property to pay his debts prior to the donation. donor would not have made the donation if he had or knew
(643) he had a child who would naturally be entitled to his affection
and property.
LIABILITY OF DONEE TO PAY DEBTS OF DONOR
The donation cannot be revoked when the child was already
Q: What are the rules provided under Arts. 758 and 759? conceived at the time of the donation, only if the donor was
aware of the conception of his child.
A:
Q: Does this article cover descendants also?
1. where donor imposes obligation upon the donee:
A: The article covers only the appearance of children and not
The donee is liable to pay only debts previously contracted. the descendants. However, although the donation will not be
He is liable for subsequent debts only when there is a revoked, it may be declared inofficious if it impairs the
stipulation to that effect. He is not liable for debts in excess of legitime of the descendant.

NOTES ON PROPERTY
Q: Is there a need for a complaint to revoke the donation? ingratitude before from the
notation of filing of the
complaint in complaint
A: The donation is revoked by the happening of any of the the Registrty
of Property
events enumerated in the article (ipso jure) but a complaint subsist
showing allegations and proofs must be filed to show that the
child is actually impaired. Art. 761. In the cases referred to in the preceding article, the
donation shall be revoked or reduced insofar as it exceeds
Q: What if the child born subsequent to the donation should the portion that may be freely disposed of by will, taking
die before the complaint for revocation is filed? into account the whole estate of the donor at the time of
the birth, appearance or adoption of a child. (n)
A: If the child born subsequent to the donation should die
before the complaint for revocation is filed, the donation Q: What are the grounds for reduction of donation?
remains subsisting, according to the view of most authors. A: The same grounds for revocation under Article 760. The
donation shall be reduced insofar as it exceeds the portion
GROUNDS FOR REVOCATION AND that may be freely disposed of by will, taking into account the
REDUCTION OF DONATION whole estate of the donor at the time of the birth,
appearance, or adoption of a child. (Art. 761).
1. Revocation- affects the whole donation and is allowed
during the lifetime of the donor The revocation is a mere reduction or partial revocation and
not total (as opposed to that mentioned in the Old Civil
a. birth, appearance, or adoption of a child; Code).
b. non – fulfillment of a resolutory condition imposed
by the donor; The donation will only be revoked to the extent of the
c. ingratitude of the donee presumptive legitime of the child; it will remain valid with
respect to the free portion taking into account the estate of
2. Reduction- generally affects a portion only of the donation the donor at the time of the birth, appearance of adoption of
and is allowed during the lifetime of the donor or after his the child.
death;
Art. 762. Upon the revocation or reduction of the donation
a. failure of the donor to reserve sufficient means for by the birth, appearance or adoption of a child, the property
support of himself or dependent relatives; affected shall be returned or its value if the donee has sold
b. failure of the donor to reserve sufficient property to the same.
pay off his existing debts;
c. inofficiousness, that is, the donation exceeds that If the property is mortgaged, the donor may redeem the
which the donor can give by will; mortgage, by paying the amount guaranteed, with a right to
recover the same from the donee.
Rules on donation
When the property cannot be returned, it shall be estimated
GROUNDS PRESCRIPTION TRANSMISSIBILITY EFFECT OF LIABILITY
OF ACTION OF ACTION REVOCATION FOR FRUITS at what it was worth at the time of the donation. (645a)
birth, Within 4 years Transmitted to Property Donee
appearance, from birth of children and must be must return
or adoption child, descendants of returned or the fruits
What the donee must do if the donation is reduced?
of a child legitimation, donor upon his its value if accruing
adoption, death sold, or from the A:
judicial redeem the filinhg of
declaration of mortgage the 1. if the property is still with him, return the property
filiations or with the right complaint 2. if the property has been sold, give the value to the donor
receipt of to recover
information of the property 3. if the property has been mortgaged, the donor may pay
existence off the debt, but he can recover reimbursement from the
Non- Within 4 years To donor’s heirs Property Donee
compliance from non- against the returned, must return
done
with compliance donee’s heirs alienations the fruits 4. if the property cannot be returned, return its value
conditions and received
mortgages aftre the
are void non- Determination of value at the time of donation
subject to the fulfillment
rights of 3rd of the
persons condition
It is presumed that the price at which the property is sold is
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
the act of mortgages accruing

NOTES ON PROPERTY
When the property cannot be returned, its value shall be
determined not as of the time of loss but as of the time of the NOTE: As to receipt of information of existence of child
donation because the done became owner from the latter believed dead, the prescriptive period is to be computed not
time and as owner he must suffer the loss or diminution, or from the actual appearance of the absent child but from the
enjoy the increase in value of the property donated. time the information was received regardingits existence.
Art. 763. The action for revocation or reduction on the In case more than one cause or ground for revocation or
grounds set forth in article 760 shall prescribe after four reduction concur, the period of prescription must run from
years from the birth of the first child, or from his the earliest cause.
legitimation, recognition or adoption, or from the judicial
declaration of filiation, or from the time information was Art. 764. The donation shall be revoked at the instance of
received regarding the existence of the child believed dead. the donor, when the donee fails to comply with any of the
conditions which the former imposed upon the latter.
This action cannot be renounced, and is transmitted, upon
the death of the donor, to his legitimate and illegitimate In this case, the property donated shall be returned to the
children and descendants. (646a) donor, the alienations made by the donee and the
mortgages imposed thereon by him being void, with the
PRESCRIPTION OF ACTION FOR REVOCATION OR limitations established, with regard to third persons, by the
REDUCTION Mortgage Law and the Land Registration Laws.
The donation is revoked ipso jure by operation of law, “by the This action shall prescribe after four years from the
happening” of any of the events mentioned in article 760. noncompliance with the condition, may be transmitted to
the heirs of the donor, and may be exercised against the
Q: Within what period should the action be brought? donee's heirs. (647a)
A: The period to bring an action is four years, and the day FAILURE TO COMPLY WITH CONDITIONS
from which the period shall begin to run depends upon the
cause for the revocation or reduction; Q: What is a condition?
Q: What if the donor dies within the period of prescription? A: Condition actually refers to the obligations, charges, or
burdens imposed by the donor for his benefit or that of a
A: If the donor dies within the period of prescription, the third person.
action is transmitted to his legitimate and illegitimate
children and descendants. What is contemplated is an onerous or modal donation. It
may also refer to a resolutory condition, but not to a
NOTE: The surviving spouse and the ascendants of the donor suspensive condition because if the condition is not fulfilled,
are not included. If subsequent to the donation, more than the donation never becomes effective.
one child was born, the period of prescription is counted
from the birth of the first child. With respect to legitimation, NOTE: Revocation implies that there is an existing donation.
the period of prescription must be counted from the time of
the legitimation (from the celebration of the subsequent The condition must be fulfilled within the period fixed by the
marriage, whether or not the child is recognized by the donor.
parents).
Q: What if the donation does not fix a period?
Q: What is the period of prescription in case of adopted
children? A: If the donation does not fix a period, the court shall
determine such period as may under the circumstances have
A: With respect to adopted children, the period of been probably contemplated by the donor.
prescription runs from the date the judgment of the court
approving the adoption becomes final. Q: What if there was non-fulfillment of the condition?
Q: What is the period of prescription in case of judicial A: In case of non- fulfillment, the property donated reverts to
declaration of filiation? the donor.
A: With respect to judicial declaration of filiation, the period a. Failure of the donee to comply with any condition
of prescription must run from the date when the judgment imposed by the donor will not affect third persons.
declaring filiation becomes final.

NOTES ON PROPERTY
b. In case of non – fulfillment by the donee of any of The enumeration is exclusive and cannot be enlarged. The
the conditions imposed by the donor, the donation act of ingratitude must have been committed by the done
shall be revoked at the instance of the donor. himself because the duty of ingratitude is personal.
NOTE: The donor may file action for specific performance. Art. 766. Although the donation is revoked on account of
ingratitude, nevertheless, the alienations and mortgages
The article is not applicable to onerous donations which are effected before the notation of the complaint for revocation
also governed by the general rules on prescription. in the Registry of Property shall subsist.
Q: Who has the burden of proof in showing that the donee Later ones shall be void. (649)
failed to comply with the obligation?
EFFECT OF REVOCATION ON PRIOR
A: The presumption is that the done has complied with his ALIENATIONS AND MORTGAGES
obligation under the deed of donation. Donor has the burden
of proof that the donee failed to comply with his obligation. In case of revocation of a donation by non – compliance by
the done with any of the conditions imposed by the donor,
NOTE: Unlike the action for revocation or reduction, there is alienations and mortgages made by the donee are void,
no prohibition in art. 764 against the renunciation of the subject only to the rights of innocent third persons.
action by the donor because the condition is purely
contractual in nature. The action may be waived. If the revocation is by reason of ingratitude, the alienations
and mortgages made by the done before the complaint for
The death of the donor or the donee does not bar the action revocation is annotated in the Registry of Property shall
to revoke for failure of the donee to comply with any of the subsist or are valid, later alienations and mortgages shall be
conditions imposed by the donor, provided the prescriptive void.
period has not yet expired.
Art. 767. In the case referred to in the first paragraph of the
Unlike the action under arts. 769 and 770, the action under preceding article, the donor shall have a right to demand
art. 764 is transmissible in favor of the donor’s heirs and from the donee the value of property alienated which he
against the donee’s heirs because the right granted is not cannot recover from third persons, or the sum for which the
personal to the donor nor is the liability of the donee same has been mortgaged.
personal to him.
The value of said property shall be fixed as of the time of
Art. 765. The donation may also be revoked at the instance the donation. (650)
of the donor, by reason of ingratitude in the following cases:
If the property has been lost or deteriorated thru any cause
(1) If the donee should commit some offense against the including a fortuitous event, the donee should respond with
person, the honor or the property of the donor, or of his damages, because as owner, he is supposed to bear the loss
wife or children under his parental authority; or deterioration (res perit domino).
(2) If the donee imputes to the donor any criminal offense,
or any act involving moral turpitude, even though he should Art. 768. When the donation is revoked for any of the
prove it, unless the crime or the act has been committed causes stated in Article 760, or by reason of ingratitude, or
against the donee himself, his wife or children under his when it is reduced because it is inofficious, the donee shall
authority; not return the fruits except from the filing of the complaint.
(3) If he unduly refuses him support when the donee is If the revocation is based upon noncompliance with any of
legally or morally bound to give support to the donor. (648a) the conditions imposed in the donation, the donee shall
return not only the property but also the fruits thereof
REVOCATION BY REASON OF INGRATITUDE which he may have received after having failed to fulfill the
OF THE DONEE condition. (651)
The article does not apply to donations mortis causa and RETURN NY DONEE OF THE FRUITS OR PROPERTY
onerous donations. DONATED
A donation propter nuptias may be revoked by the donor Rules depend upon the causes of revocation or reduction:
when the donee has committed an act of ingratitude. 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

NOTES ON PROPERTY
support, or he donated more than he can give by will, 3. if a criminal case against the donee was instituted by the
only the fruits accruing from the filing of the complaint donor, but the donor dies before he could bring the civil
need be returned. From this it can be implied that the action for revocation, his heirs may likewise bring action
donation remains valid up to the time of the filing of the because in such case, the intent of the donor not to
complaint. pardon the done is quite clear;
2. If the cause is the non – fulfillment of the condition 4. if the action for revocation has already been filed by the
imposed in the donation, the fruits must be returned donor before his death, his heirs are allowed to continue
from the time of the breach of the condition. The donee the same
shall return the property donated.
NOTE: The heirs of the donee are not held responsible for the
Art. 769. The action granted to the donor by reason of acts of their predecessor – donee. The act of ingratitude of
ingratitude cannot be renounced in advance. This action the donee is personal. But if the donor has already filed the
prescribes within one year, to be counted from the time the complaint before the donee’s death, the suit may be
donor had knowledge of the fact and it was possible for him continued against his heirs
to bring the action. (652)
Art. 771. Donations which in accordance with the provisions
RENUNCIATION AND PRESCRIPTIVE PERIOD OF of Article 752, are inofficious, bearing in mind the estimated
ACTION BY REASON OF INGRATITUDE net value of the donor's property at the time of his death,
shall be reduced with regard to the excess; but this
1. The action granted to the donor for revocation by reason reduction shall not prevent the donations from taking effect
of ingratitude cannot be renounced in advance. What the during the life of the donor, nor shall it bar the donee from
law prohibits is waiver, prior to the commission of the act appropriating the fruits.
of ingratitude. A past ingratitude can be the subject of a
valid renunciation because the renunciation can be For the reduction of donations the provisions of this Chapter
considered as an act of magnanimity on the part of the and of Articles 911 and 912 of this Code shall govern. (654)
donor.
2. The action prescribes within one year from the time the REDUCTION OF INOFFICIOUS DONATIONS
donor had knowledge of the act of ingratitude and it was
impossible for him to bring the action. In case of a Since the inofficiousness of the donation cannot be
fortuitous event, the period during which such determined till after the donor's death, it follows that in the
impossibility existed is not counted meantime, the donation is valid and ownership is transmitted
to the done during the donor's lifetime.
Art. 770. This action shall not be transmitted to the heirs of
the donor, if the latter did not institute the same, although The action to reduce the inofficious donation must be
he could have done so, and even if he should die before the brought within five years from the time the right of action
expiration of one year. accrues.
Neither can this action be brought against the heir of the Resume of rules on reduction
donee, unless upon the latter's death the complaint has
been filed. (653) GROUNDS PRESCRIPTIO TRANSMISSIBILIT EFFECT OF LIABILITY
N OF ACTION Y OF ACTION REVOCATIO FOR FRUITS
N
Failure of the the action action not donation is the donee is
donor to may be transmissible as reduced to entitled to
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
support by the receive are provide the
TRANSMISSION OF ACTION FOR REVOCATION relatives personal in nature support property
entitled to (art. 195 Family donated
support Code);
General Rule: The action to revoke a donation by reason of during the
ingratitude is purely personal to the donor and cannot, as a lifetime of the
donor
rule, be transmitted to the heirs. Inofficiousnes 5 years action is donation donee
s transmitted takes effect appropriate
Exceptions: to the donor’s during the s the
heirs as the lifetime of fruits as
1. if the donee killed the donor, the latter’s heirs can ask for donation shall be the donor owner of
revocation; reduced as regard subject to the
the excess at the reduction property
2. the heirs may also do so if the donor dies without having time of only upon
known of the act of ingratitude; the donor’s death his death
with regard
to

NOTES ON PROPERTY
the excess Q: Is future legitime subject to renunciation?
Birth, Anytime Not transmissible Donation Donee
appearance or during the reduced to appropriate
adoption of a lifetime of extent s fruits not A: Future legitime is not subject to renunciation
child donor necessary affected by
for support reductioon,
with regard Art. 773. If, there being two or more donations, the
to the disposable portion is not sufficient to cover all of them,
excess,
liable for those of the more recent date shall be suppressed or
fruits reduced with regard to the excess. (656)
accruing
from the
filing of the Q: When is a donation inofficious?
complaint
Fraud against 4 years action is the property the
creditors transmitted to affected fruits of the A: A donation is inofficious or excessive when its amount
the creditor’s shall be property impairs the legitimes of the compulsory heirs.
heirs or returned by affected
successors – in – the shall
interest donee for also be NOTE: Donations must be charged only against the
the benefit returned
of the
disposable free portion. If its amount exceeds the same, the
creditor excess is void for being inofficious.
subject to
the rights of
innocent Q: What is the status of an inofficious donation?
third
persons
A: During the lifetime of the donor, the inofficious donation is
effective since the excessiveness of the donation can only be
Art. 772. Only those who at the time of the donor's death
determined after 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.
NOTE: Consequently, the donee is entitled to the fruits of the
property donated during the lifetime of the donor.
Those referred to in the preceding paragraph cannot
renounce their right during the lifetime of the donor, either
Q: May an heir waive his right during the lifetime of the
by express declaration, or by consenting to the donation.
donor to file an action for suppression or reduction of an
inofficious donation?
The donees, devisees and legatees, who are not entitled to
the legitime and the creditors of the deceased can neither
A: No. Such waiver, in whatever form it is extended, is void.
ask for the reduction nor avail themselves thereof. (655a)
(Art. 772)
PERSONS ENTITLED TO ASK FOR REDUCTION
REDUCTION WHERE THERE ARE TWO OR
MORE DONATIONS
Q: Who may ask for reduction on the ground of
inofficiousness?
1. the subsequent donations shall first be reduced and only
if they are not sufficient to cover the disposable portion
A:
should the earlier ones be reduced also with regard to
1. compulsory heirs of the donor
the excess;
2. the heirs and successor-in-interests of
2. if the two donations were perfected at the same time,
the reduction should be proportionate unless otherwise
Q: Who may NOT ask for reduction?
provided by the donor
A:
1. voluntary heirs
--END--
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.


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NOTES ON PROPERTY

UNIVERSITY OF SANTO TOMAS

Faculty of Civil Law

includes rights, the rights covered under Art. 3 of the

Q: What about the corpse? 2. As to ownership

A: It is considered as thing. That is why it is sometimes a. Public dominion

It is not a property even it may be considered a thing. It is for 3. As to alienability

A: No. 6. As to susceptibility to substitution

A: No. In obligations, the object is the prestation which is a. Principal

CLASSIFICATION OF PROPERTY 2. Kinds of contracts

Facultad de Derecho Civil 2

2. INCORPORATION-attached to an immovable in a fixed

Facultad de Derecho Civil 3

Plants adhered to the soil by incorporation are immovable;

Facultad de Derecho Civil 4

Facultad de Derecho Civil 5

Q: What is water? Q: What are the tests to determine whether a property is a

Facultad de Derecho Civil 6

The right to collect a sum of money is by itself a personal CHAPTER 3

Q: What if you are partners with somebody in the business A:

Q: How about private ownership?

Q: What is property for public service? A:

Facultad de Derecho Civil 8

A: An Executive or Legislative act is necessary to reclassify

Facultad de Derecho Civil 9

Hence, it is outside the commerce of man. As long as they are

Q: Who may own lands? Q: What is ownership?

It is an independent right. Can refer to both things and rights

PROVISIONS COMMON TO THE THREE PRECEDING Q: What is dominion?

Facultad de Derecho Civil 10

NOTE: Q: What are the kinds of ownership?

Naked ownership + Usufruct = FULL OWNERSHIP A:

Facultad de Derecho Civil 11

Q: What are the limitations Imposed by the Owner Himself? A:

Facultad de Derecho Civil 13

No Criminal Liability or Civil Liability Except: civil liability

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

Q: What is the Doctrine of State of Necessity?

Facultad de Derecho Civil 15

Q: What are consequential damages? POLICE POWER

Q: Can private property be expropriated for private use? A:

A: Yes. Socialized Housing is extra ordinary expropriation –

Facultad de Derecho Civil 16

1. Horizontally: extends up to the boundaries

Facultad de Derecho Civil 17

A: Q: What is right of accession?

Facultad de Derecho Civil 18

II. Accession by attachment or incorporation (continua)

A: No. KINDS OF FRUITS

A: Industrial fruits are those produced by lands of any kind

A: He who receives the fruits has the obligation to pay the

SECTION 2. - Right of Accession with Respect RULES:

Facultad de Derecho Civil 20

Facultad de Derecho Civil 21

A: Remedy is to compel the landowner to make a choice

Q: What are NECESSARY EXPENSES?

Q: What are USEFUL EXPENSES?

Art. 449. He who builds, plants or sows in bad faith on the A:

Facultad de Derecho Civil 22

A: He is the owner of the land adjoining rivers.

Q: What is accretion? A: They do not form part of the accretion.

A: The process whereby the soil is so deposited or the

Facultad de Derecho Civil 24