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Notes on Property
Kathryn P. Dea Serna
TITLE I. CLASSIFICATION OF PROPERTY
PRELIMINARY PROVISIONS
What is property?
A thngs whch are or may be the ob|ect of appropraton are consdered property (Artce
414).
As a sub|ect n a aw course, property s that branch of cv aw whch cassfed and defnes
the dfferent knds of approprabe ob|ects, provdes for ther acquston and oss, and n
genera, treats of the nature and consequences of rea rghts.
What are the characteristics o property?
a. Utty - Capabty of the thng to satsfy mora or economc wants and human
needs;
b. Susceptbty - Independent exstence;
c. Approprabty - Susceptbe to ownershp.
!o" is thi#$ %isti#$&ishe% ro' property?
Thng s broader n scope for t ncudes both approprabe and non-approprabe ob|ects.
As to their #at&re( "hat are the c)assiicatio#s o thi#$s?
1. Res Nullius - thngs beongng to no one because they have not been approprated
(ke fsh st swmmng n the ocean), or because they have been abandoned (res
derelictae) by the owner wth the ntenton of no onger ownng them. Other
exampes ncude wd anmas (ferae naturae), wd brds, and pebbes yng on the
sea shore.
2. Res Communes - those owned by everybody n that ther use and en|oyments are
gven to a of manknd. Exampes are the ar we breathe, the wnd, sunght, and
starght.
3. Res Alicujus - ob|ects whch are owned prvatey, ether coectve or ndvdua
capacty.
!o" is property c)assiie% accor%i#$ to its #at&re a#% accor%i#$ to its o"#ership?
Accordng to ts nature, property may be ether:
1. Immovabe or rea property (Artce 414);
2. Movabe or persona property (Artce 414)
Accordng to ts ownershp, t may ether be:
1. Of pubc ownershp (Artce 419); or
2. Of prvate ownershp (Artce 419).
What is the i'porta#ce o c)assiicatio# o property i#to i''o*a+)es a#%
'o*a+)es?
1. formates
2. prescrpton
3. to bnd thrd persons
C!APTER , IMMOVA-LE PROPERTY
What are the i''o*a+)e properties e#&'erate% +y )a"? .Artic)e /,01
1. Land, budngs, roads and constructon of a knds adhered to the so;
2. Trees, pants, and growng fruts, whe they are attached to the and or form an
ntegra part of an mmovabe;
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Notes on Property
Kathryn P. Dea Serna
3. Everythng attached to an mmovabe n a fxed manner, n such a way that t cannot
be separated therefrom wthout breakng the matera or deteroraton of the ob|ect;
4. Statues, reefs, pantngs, or other ob|ects for use or ornamentaton, paced n
budngs or on ands by the owner of the mmovabe n such a manner that t reveas
the ntenton to attach them permanenty the tenements;
5. Machnery, receptaces, nstruments or mpements ntended by the owner of the
tenement for an ndustry or works whch may be carred on n a budng or on a pece
of and, and whch tend drecty to meet the needs of sad ndustry or works;
6. Anma houses, pgeon - houses, beehves, fshponds or breedng paces of smar
nature, n case ther owner has paced them or preserves them wth the ntenton to
have them permanenty attached to the and, and formng a permanent part of t; the
anmas n these paces are ncuded;
7. Fertzer actuay used on a pece of and;
8. Mnes, quarres, and sag dumps, whe the matter thereof forms part of the bed, and
waters ether runnng or stagnant;
9. Docks and structures whch, though foatng, are ntended by ther nature and ob|ect
to reman n a fxed pace on a rver, ake or coast;
10. Contracts of pubc works, and servtudes and other rea rghts over mmovabe
property.
What are the %iere#t c)asses o i''o*a+)es?
1. Immovabe by nature, or those whch cannot be moved from pace to pace, such as
those mentoned n Nos. 1 and 8 n Artce 415 (trees, f they are spontaneous
products of the so; ands, roads, mnes and quarres as we as sewers, regardess of
any consderaton);
2. Immovabe by ncorporaton, or those whch are attached to an mmovabe n such a
manner as to form an ntegra part thereof, such as those mentoned n Nos.1
(budngs and other structures adhered to the so except and and roads), 2, (f they
were panted through abor), 3 and 4 of Artce 415 (those attached to an mmovabe
n a fxed manner, rrespectve of ownershp thereof);
3. Immovabe by destnaton, or those whch are paced n an mmovabe for the use,
ornamentaton, expotaton or perfecton of such mmovabe, such as those
mentoned n Nos. 4,5,6,7 and 9 of Artce 415 (and machneres and other
mpements);
4. Immovabe by anaogy, or those whch are consdered mmovabes by operaton of
aw, such as those mentoned n No. 10 of Artce 415 (rea rghts over mmovabe).
Are &proote% trees i''o*a+)e property?
Uprooted trees are persona, except uprooted tmber f the and s tmber and.
What is the %iere#ce +et"ee# para$raphs 2 a#% /?
Paragraph 3:
1. It cannot be separated from mmovabe wthout breakng or deteroraton;
2. It need not be paced by the owner;
3. It s rea property by ncorporaton.
Paragraph 4:
1. It can be separated from mmovabe wthout breakng or deteroraton;
2. It must be paced by the owner, or by hs agent, express or mped;
3. It s rea property by ncorporaton and destnaton.
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Notes on Property
Kathryn P. Dea Serna
A )ease% a +&i)%i#$ to - or a ter' o te# years. - esta+)ishe% a shoe actory i#
the +&i)%i#$ a#% as a res&)t he i#sta))e% certai# 'achi#eries therei#. Are s&ch
'achi#eries 'o*a+)es or i''o*a+)es?
The machneres are movabes. In order that the machneres can be cassfed as
mmovabes wthn the meanng of Artce 415 of the Cv Code, t s essenta that the
foowng requstes must concur:
1. The pacng must be made by the owner of the tenement, hs agent or duy
authorzed ega representatve;
2. The ndustry or works must be carred on n the budng or on the and;
3. The machnes, etc. must tend drecty to meet the needs of sad ndustry or works;
4. The machnes must be essenta and prncpa eements n the ndustry, and not
merey ncdenta.
What is the e3ceptio# to para$raph 0?
When paced on the and or tenement by a tenant? (Davao Sawmill vs. Castillo, 61 Phil. 7!).
What is the e3ceptio# to the e3ceptio#?
When the tenant had promsed to eave the machnery on the tenement at the end of the
ease, or when he acted as agent of the owner of the and. ("alde# vs. Central Alta$racia,
%nc., &&' (.S. ')).
May a +&i)%i#$ +e co#si%ere% a perso#a) property?
Yes, f there s a stpuaton as when t s used as securty n the payment of an obgaton
where a chatte mortgage s executed over t (Navarro vs. Central Alta$racia, %nc. &&' (.S.
')). It may aso be consdered persona property f the budng s bought for purposes of
demoshng the same. In ths case, the materas resutng from the demoton are beng
bought. Lkewse, structures whch are mere supermposton on the and, ke *aron$+
*aron$ are not mmovabes.
A is the o"#er o a pai#ti#$. !e )e#t it to - "ho attache% the sa'e o# the "a)) o
his ho&se to +ea&tiy it at its +)essi#$ "ith the o+)i$atio# to ret&r# it "ithi# t"o
%ays ater the ho&se +)essi#$. Is the pai#ti#$ i''o*a+)e?
No, t s movabe due to the ack of ntent to attach t permanenty.
C!APTER 4 MOVA-LE PROPERTY
What are the 'o*a+)e properties &#%er the )a"? .Artic)es /,5 a#% /,61
The foowng are deemed to be persona property:
1. Those movabes susceptbe of appropraton whch are not ncuded n the precedng
artce;
2. Rea property whch by any speca provsons of aw s consdered as personaty;
3. Forces of nature whch are brought under the contro by scence;
4. In genera, a thngs whch can be transported from pace to pace wthout
mparment of the rea property to whch they are fxed; and aso
5. Obgatons and actons whch have for ther ob|ect movabes or demandabe sums;
and
6. Shares of stock of agrcuture, commerca and ndustra enttes, athough they may
have rea estate.
What are the tests to %eter'i#e "hether property is 'o*a+)e or i''o*a+)e?
1. If the property s capabe of beng carred from pace to pace (test by descrpton).
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Notes on Property
Kathryn P. Dea Serna
2. If such change n ocaton can be made wthout n|urng the rea property to whch t
may n the meantme be attached (test by descrpton).
3. If fnay, the ob|ect s not one of those enumerated or ncuded n Artce 415 (test by
excuson).
What are the c)assiicatio#s o 'o*a+)e property accor%i#$ to its #at&re?
Movabe property s ether;
A. (Accordng to ther nature) |Artce 418|:
1. Consumabe- those whch cannot be used n a manner approprate to ther nature
wthout ther beng consumed;
2. Non- consumabe - any other knd of movabe property. (Artce 418)
B. Accordng to the ntenton of the partes (as to ther possbty of beng substtuted by
others of the same knd and quaty):
1. Fungbe - can be repaced by an equa quaty;
2. Non-fungbe - cannot be repaced, the dentca ob|ect must be returned.
C!APTER 2 7 PROPERTY IN RELATION TO T!E
PERSON TO W!OM IT -ELON8S
!o" is property c)assiie% accor%i#$ to o"#ership? .Artic)e /,91
1. Of pubc domnon (dominio ,u*lico); or
2. Of prvate ownershp ( ,ro,riedad ,rivado)

!o" 'ay the State o"# property?
Regardng the state, t may own propertes both n ts pubc capacty (propertes of pubc
domnon) and n ts prvate capacty (patrmona property)
!o" are properties o po)itica) s&+%i*isio# c)assiie%?
1. Propertes of pubc use - They cannot be aenated, and may not be acqured by
prescrpton;
2. Patrmona property - They may be aenated and acqured by prescrpton.
What are properties o p&+)ic %o'i#io#? .Artic)e /4:1
1. Those ntended for pubc use, such as roads, canas, rvers, torrents, ports and
brdges constructed by the state, banks, shores, roadsteads, and others of smar
character |may be used by anybody| (Artce 420, No. 1).
2. Property for pubc use, n the provnces, ctes, and muncpates, such as
provnca roads, cty streets, muncpa streets, squares, fountans, pubc waters,
promenades, and pubc works for pubc servce pad for by sad provnces, ctes,
or muncpates (Artce 420, par. 1).
3. Those ntended for the deveopment of natona weath - such as those whch
beong to the state, wthout beng for pubc use, and are ntended for some
pubc servce or for the deveopment of the natona weath |ke our natura
resources| (Artce 420, No. 2).
4. Those ntended for pubc servce such as the natona government budngs,
army rfes, army vesses.
What are the characteristics o property o p&+)ic %o'i#io#?
1. They are outsde the commerce of men;
2. They cannot be approprated;
3. They cannot be aenated;
4. They cannot be acqured by prescrpton;
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Notes on Property
Kathryn P. Dea Serna
5. They cannot be sub|ect to attachment or executon;
6. They cannot be regstered under the Land Regstraton Law and be the sub|ect of
a Torrens Tte;
7. In genera, they can be used by everybody; and
8. They may be ether rea or persona property.
A portio# o the to"# p)a;a o a '&#icipa)ity "as )ease% to A-C E#terprises. Is the
co#tract *a)i%?
No, because t forms part of the propertes for pubc use of provnces, ctes or
muncpates. The town paza s outsde the commerce of men. ("illanueva vs. Castaneda,
-+61.11, Se,tem*er &1, 1!)7)
What is the Re$a)ia# <octri#e?
It s the doctrne, whch reserves to the State the fu ownershp of a natura resources or
natura weath that may be found n bowes of the earth.
May the Ropo#$$i property i# =apa# +e so)%?
No, because the sad property s a property of the State ntended for pubc use or pubc
servce (Artce 420, -aurel vs. /arcia).
What are the patri'o#ia) properties o the state or o pro*i#ces( cities a#%
'&#icipa)ities?
1. Those property of the state whch are not ntended for pubc use, or for pubc
servce, or for the deveopment of the natona weath, as we as those property of
provnces, ctes and muncpates whch are ntended for pubc use are patrmona.
(Artce 424)
2. The weath owned by the state n ts prvate character as dstngushed from ts pubc
capacty.
3. Property of pubc domnon, when no onger ntended for pubc use or for pubc
servce, sha form part of the patrmona property of the state. (Artce 422)
May the patri'o#ia) property o the State +e ac>&ire% +y prescriptio#?
They may be acqured by prvate ndvduas or corporatons thru prescrpton.
What is 'ea#t +y property o pri*ate o"#ership?
Property of prvate ownershp, besdes patrmona property of the state, provnces, ctes
and muncpates, conssts of a property beongng to prvate persons, ether ndvduay
or coectvey (Artce 425).
TITLE II. OWNERS!IP
C!APTER , 7 OWNERS!IP IN 8ENERAL
What is o"#ership?
Ownershp s the ndependent and genera rght of a person to contro a thng partcuary n
hs possesson, en|oyment, dsposton, and recovery, sub|ect to no restrctons except those
mposed by the state or prvate persons, wthout pre|udce to the provsons of aw.
!o" 'ay o"#ership +e e3ercise%?
Ownershp may be exercsed over thngs or rghts. (Artce 427)
What are the ?i#%s o o"#ership?
1. Fu ownershp - ths ncudes a the rghts of an owner;
2. Naked ownershp - ths s ownershp where the rght to the use and the fruts has
been dened (as when the usufruct thereof has been granted to another).
3. Soe ownershp - where the ownershp s vested n ony one person;
4. Co-ownershp - where the ownershp s vested n two or more owners.
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Notes on Property
Kathryn P. Dea Serna
What are the tra%itio#a) attri+&tes or e)e'e#ts o o"#ership?
1. The rght to en|oy whch ncudes:
a. 0us utendi, or the rght to use;
b. 0us fruendi, or the rght to en|oy the fruts;
c. 0us A*utendi, or the rght to consume the thng by ts use;
d. 0us ,ossidendi or rght to possess
2. The rght to dspose (jus dis,odendi), or the rght to aenate, encumber, transform, or
even to destroy the property.
3. The rght to excude others.
4. The rght to vndcate (jus vindicandi), or the rght of acton avaabe to the owner to
recover the property aganst the hoder or possessor. (Artce 428).
What %oes the ri$ht to the r&its i#c)&%e?
1. Natura;
2. Industra; and
3. Cv
What are the )i'itatio#s &po# the ri$ht o o"#ership?
1. Genera mtatons mposed by the State for ts beneft, such as the power of emnent
doman, the poce power, and the power of taxaton;
2. Specfc mtatons mposed by aw, such as ega servtudes;
3. Lmtatons mposed by the party transmttng the property ether by contract or by
w; (Those gven by the person (grantor) who gave the thng to ts present owner.)
4. Lmtatons mposed by the owner hmsef, such as vountary servtudes, mortgages,
pedges, and ease rghts; and
5. Inherent mtatons arsng from confct wth other rghts, such as those caused by
contguty of property.
6. The consttutona prohbton regardng acquston of rea estate by aens.
What is the %octri#e o se) he)p?
The owner or awfu possessor of a thng has the rght to excude any person from the
en|oyment and dsposa thereof. For ths purpose, he may use such force as may be
reasonabe necessary to repe or prevent an actua or threatened unawfu physca nvason
or usurpaton of hs property. (Artce 429)
Whe# is orce i# %ee#se o property @&stiie%? .Artic)e /491
1. Force must be empoyed by the owner or awfu possessor of the property;
2. There must be actua or threatened physca nvason or usurpaton of the
property;
3. The nvason or usurpaton must be unawfu;
4. The force empoyed must be reasonaby necessary to repe the nvason or
usurpaton.
What is the )i'itatio# o a# o"#er i# e#ci#$ or e#c)osi#$ his )a#% te#e'e#t?
Every owner may encose or fence hs and or tenements by means of was, dtches, ve or
dead hedges, or by any other means wthout detrment to servtudes consttuted thereon.
(Artce 430)
What is the )i'itatio# o a# o"#er i# &si#$ his property?
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Notes on Property
Kathryn P. Dea Serna
The owner of a thng cannot make use thereof n such a manner as to n|ure the rghts of a
thrd person. (Artce 431)
Ths s one of the fundamenta bases of poce power, and consttutes a |ust restrcton on
the rght of ownershp.
What is the %octri#e o state o #ecessity? .Artic)e /241
The owner of a thng has no rght to prohbt the nterference of another wth the same, f the
nterference s necessary to avert an mmnent danger and the threatened damage,
compared to the damage arsng to the owner from the nterference, s much greater. The
owner may demand from the person benefted ndemnty for the damage to hm.
What is the %octri#e o i#co'p)ete pri*i)e$e?
The owner cannot refuse nterference by another f such nterference s necessary to avert
an mmnent danger and the threatened damage, compared to the damage arsng to the
owner from the nterference s much greater.
What are the t"o %isp&ta+)e pres&'ptio#s o o"#ership? .Artic)e /221
1. There must be actua possesson; and
2. There must be cam of ownershp.
Ths apped to both mmovabe and movabe property.
What are the re>&isites i# a# actio# to reco*er property? .Artic)e /2/1
1. The property must be dentfed;
2. The pantff must rey on the strength of hs tte and not on the weakness of the
defendants cam.
What are the e*i%e#ces "hich 'ay +e prese#te% +y the p)ai#ti to sho" his
o"#ership?
1. Torrens certfcate;
2. Ttes granted by the Spansh Government, ke those effected by roya cedua;
3. Long and actua possesson;
4. Occupaton of a budng for a ong tme wthout payng rentas therefor.
5. Testmony of adverse and excusve possesson of ownershp corroborated by tax
decaraton of propertes, payment of taxes, and deeds of mortgage.
What are the esse#tia) re>&isites o e'i#e#t %o'ai#? .Artic)e ,/A1
1. Takng by competent authorty;
2. Observance of due process of aw;
3. Takng for pubc use;
4. Payment of |ust compensaton.
Whe# ca# the State sei;e or co#%e'# property? .Artic)e /251
When t s for the nterest of heath, safety or securty. In such a case, the owner thereof
sha not be entted to compensaton, uness he can show that such condemnaton or
sezure s |ustfed.
What is the +asis o po"er o the State to sei;e a#% co#%e'# properties o
pri*ate o"#ership?
The bass s poce power of the State.
May the State a+ate #&isa#ces?
A State, n the exercse of poce power, may abate nusances.
What are the ?i#%s o #&isa#ces that 'ay +e a+ate% +y the State?
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Notes on Property
Kathryn P. Dea Serna
1. Pubc nusance - that whch affects a communty or a consderabe number of
persons (Artce 695);
2. Prvate nusance - that whch s not pubc (Artce 695);
3. Nusance ,er se - that whch s a nusance under a crcumstances;
4. Nusance ,er accidens - that whch us a nusance ony under certan crcumstances,
ke a factory, stuated n a resdenta dstrct.
A is the o"#er o a parce) o )a#% co#sisti#$ o te# hectares. What ri$ht %oes A
ha*e o# the sa'e?
He can make constructons, works, pantatons and excavatons. (Artce 437)
Is the ri$ht o A i# the pro+)e' a+o*e a+so)&te? Why?
No, because t s sub|ect to certan restrctons or mtatons ke servtudes, speca aws,
ordnances, requrements of aera navgaton and the prncpe of human reatons. He
cannot compan of the reasonabe requrements of aera navgaton (Artce 437).
What is the e3te#t o the ri$ht o o"#ership o the o"#er o a parce) o )a#%?
The owner of a parce of and s the owner of ts surface and of everythng under t. (Artce
437)
<oes it 'ea# that i the o"#er o the )a#% is the o"#er o e*erythi#$ &#%er it( he
is the o"#er o the 'i#era)s o&#% i# the )a#%? Why?
No, because ownershp of mneras s reserved n favor of the state even f the and s a
prvate and. In fact, he has no rght to extract the mneras wthout the permsson of the
state.
What is hi%%e# treas&re?
By treasure s understood, for ega purposes, any hdden or unknown depost of money,
|ewery, or other precous ob|ects, the awfu ownershp does not appear (Artce 439).
To "ho' %oes hi%%e# treas&re "hich is %isco*ere% +e)o#$?
Hdden treasure beongs to the owner of the and, budng or other property on whch t s
found.
Nevertheess, when the dscovery s made on the property of another, or of the State or any
of ts subdvsons, and by chance, one haf thereof sha be aowed to the fnder. If the
fnder s a trespasser, he sha not be entted to any share of the treasure.
If the thngs found be of nterest to scence or the arts, the State may acqure them at ther
|ust prce, whch sha be dvded n conformty wth the rue stated. (Artce 438)
B o&#% a hi%%e# treas&re i#si%e the )a#% o Y. !o" "i)) the treas&re +e %i*i%e% i
B is a &s&r&ct&ary o the )a#%C )esseeC ar'erC )a+orer hire% to )oo? or it?
If X s a usufructuary, or essee, or farmer, he s entted to of the hdden treasure because
they are consdered as strangers to the and.
If X s a aborer ntended to ook for t, he s entted to hs wage or saary ony.
S&ppose B i# the pro+)e' a+o*e has a# i#str&'e#t to )oo? or a hi%%e# treas&re(
ca# he sti)) +e co#si%ere% a i#%er +y cha#ce? Why?
Yes, Spansh commentators on the Cv Code tend to te us that "by chance" means there
shoud be no purpose or ntenton to ook for t.
The better rue, however, s that "by chance" means "good uck", whether there was a
deberated search or not for the treasure, but no pror agreement as to how t s to be
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Notes on Property
Kathryn P. Dea Serna
dvded. One who ntentonay ooks for t s embraced because f he does not ask for
permsson, he s a trespasser.
I# or%er that the r&)e re$ar%i#$ the %isco*ery o hi%%e# treas&res +y a stra#$er
o# property +e)o#$i#$ to a#other 'ay +e app)ie%( "hat re>&isites '&st co#c&r?
1. The treasure must consst of money, |ewery or other precous ob|ects;
2. It must be hdden and unknown;
3. Its awfu ownershp does not appear;
4. The dscovery must be made by chance; and
5. The dscoverer must be a stranger and not a trespasser.
C!APTER 4. RI8!T OF ACCESSION
8ENERAL PROVISIONS
<ei#e accessio#.
Accesson may be defned as the rght pertanng to the owner of a thng over everythng
whch s produced thereby, or whch s attached thereto, ether naturay or artfcay
(Artce 440).
Is accessio# a 'o%e o ac>&iri#$ o"#ership?
From the very defnton tsef, t s cear that t s not a mode of acqurng ownershp; t s
merey a consequence of the rght of ownershp. Furthermore, under Artce 712 of the Cv
Code whch enumerates the dfferent modes of acqurng ownershp or other rea rghts,
accesson s not ncuded.
What are the %iere#t ?i#%s o accessio#?
1. Accession discreta (to the fruts)
1) Natura fruts;
2) Industra fruts; and
3) Cv fruts
2. Accession continua (attachment or ncorporaton)
1) Wth reference to rea property
a. Accession industrial
a) Budng;
b) Pantng; and
c) Sowng
b. Accession natural
a) Auvum
b) Avuson;
c) Change of course of rvers; and
d) Formaton of Isands
2) Wth reference to persona property
a. Ad|uncton or con|uncton
a) %nclusion (engraftment);
b) Soldadura (attachment);
c) 1ejido (weavng);
d) Pintura (pantng);
e) 2scritura (wrtng)
Page 10
Notes on Property
Kathryn P. Dea Serna
b. Mxture (confusion - quds; conmi3tion - sods)
c. Specfcaton
SECTION ,. RI8!T OF ACCESSION WIT!
RESPECT TO W!AT IS PRO<DCE< -Y PROPERTY
.ACCESSION <ISCRETA1
What is accession discreta?
It s the rght to the ownershp of the fruts produced by ones property.
What are the ?i#%s o r&its "hich +e)o#$ to a# o"#er?
To the owner beongs:
1. The natura fruts - spontaneous products of the so, the young and other
products of anmas;
2. The ndustra fruts - Those produced by ands of any knd through cutvaton and
abor;
3. The cv fruts - Rent of budngs, prce of eases of ands, etc. (Artce 441).
Is the r&)e o accession discreta that to the o"#er o the thi#$s +e)o#$ the
#at&ra)( i#%&stria) a#% ci*i) r&its a+so)&te i# character?
No, t s sub|ect to the foowng excepton:
1. If the thng s n the possesson of a possessor n good fath n whch case such
possessor s entted to the fruts (Artce 544);
2. If the thng s sub|ect to a usufruct n whch case the usufructuary s entted to
the fruts (Artce 566);
3. If the thng s eased, n whch case the essee s entted to the fruts of the thng,
athough such essee must pay the owner rentas whch are n the nature of cv
fruts (Artce 1654);
4. If the thng s n the possesson of an antchretc credtor n whch case such
credtor s entted to the fruts wth the obgaton of appyng them to the nterest
and prncpa (Artce 2132). |Antchress s a contract by vrtue of whch the
credtor acqures the rght to receve the fruts of an mmovabe of hs debtor,
wth the obgaton to appy them to the payment of nterest, f owng, and
thereafter to the prncpa of hs credt.|
What is the 'ea#i#$ o #at&ra)( i#%&stria) a#% ci*i) r&its?
Natura fruts are the spontaneous products of the so, and the young and other products of
anmas.
Industra fruts are those produced by ands of any knd through cutvaton or abor.
Cv fruts are the rents of budngs, the prce of eases of ands and other property and the
amount of perpetua or fe annutes or other smar ncomes (Artce 442).
To "ho' %oes the ospri#$ o a#i'a)s +e)o#$ "he# the 'a)e a#% e'a)e +e)o#$
to %iere#t o"#ers? .p. 4:/1
Appyng the prncpe of ,artus se4uitur ventrem, the offsprng beongs to the owner of the
femae (Artce 441. No. 1)
A )ease% a e'a)e a#i'a) ro' -. <&ri#$ the perio% o the )ease( the a#i'a)
pro%&ce% si+)i#$. Who o"#s the yo&#$?
A owns the young, because the contract of ease s onerous. It shoud aso be observed that
by vrtue of the contract of ease, the genera rue that the owner of the femae s aso the
owner of the young must gve way.
Page 11
Notes on Property
Kathryn P. Dea Serna
S&ppose that A "as 'ere)y $i*e# the a#i'a) +y "ay o commodatum .$rat&ito&s
+orro"i#$1( "ho is the o"#er o the yo&#$?
The owner of the femae retans ownershp n vew of the gratutous contract.
What is the %&ty o the recipie#t o r&its to thir% perso#s "ho i#c&rre% e3pe#ses
i# their pro%&ctio#( $atheri#$ a#% preser*atio#?
He who receves the fruts has the obgaton to pay the expenses made by a thrd person n
ther producton, gatherng and preservaton (Artce 443).
Note that the fruts referred to here are $athered fruts. Owner shoud pay for the expenses
of cutvaton, gatherng and preservaton irres,ective of $ood faith or *ad faith to prevent
un|ust enrchment.
The rue s dfferent wth respect to un$athered fruts. When the possesson s nterrupted
and n bad fath, no rembursement s due (Artce 449 pursuant to the prncpe of accession
continua).
App)icatio#sE
A is the o"#er o a piece o )a#% &po# r&its "ere $ro"#( raise%( har*este% a#%
gathered +y - i# +a% aith. Who sho&)% +e co#si%ere% the o"#er o the r&its?
A shoud be consdered the owner of the fruts snce he s the owner of the and, and B s a
panter n bad fath but must remburse B for the expenses for producton, gatherng and
preservaton. The reason for rembursng B even though he s n bad fath, s to that were t
not necessary cutvaton expenses, there woud not be any fruts grown at a, or eft or
preserved. Thus Artce 443 s merey n consonance wth the prncpe that no one may
enrch hmsef un|usty at anothers expense.
Is Artic)e //2 app)ica+)e i the p)a#ter is i# $oo% aith?
Artce 443 does not appy when the panter s n good fath, because n ths case, he s
entted to the fruts aready receved, hence there s no necessty of rembursng hm (See
Artce 544)
What is the characteristic o the e3pe#ses reerre% to i# Artic)e //2?
1. They must have been used for producton, gatherng, or preservaton, and not for
the mprovement of the property;
2. They must have been necessary, and not uxurous or excessve. They must be
commensurate wth those ordnary necesstated by the product.
What are co#si%ere% #at&ra) or i#%&stria) r&its?
Ony such as are manfest or born are consdered as natura or ndustra fruts.
Wth respect to anmas, t s suffcent that they are n the womb of the mother, athough
unborn (Artce 444).
!o" are the r&)es or ci*i) r&its %isti#$&ishe% ro' #at&ra) a#% i#%&stria) r&its?
Cv fruts accrue day (Artce 554) and are therefore consdered n the category of persona
property; natura and ndustra fruts, whe st growng, are rea property;
1. Cv fruts can be pro-rated; natura and ndustra fruts ordnary cannot.
SECTION 4. RI8!T OF ACCESSION WIT! RESPECT
TO IMMOVA-LE PROPERTY
To "ho' %oes accession continua (accession industrial) +e)o#$?
Page 12
Notes on Property
Kathryn P. Dea Serna
Whatever s but, panted or sown on the and of another and the mprovements or repars
made thereon, beong to the owner of the and, sub|ect to the provsons of the foowng
artces (artce 445).
What are the +asic pri#cip)es i# accession industrial?
1. If remova can be acheved wthout destructon, rues on accesson are
nappcabe;
2. The accessory foows the prncpa;
3. The prncpes of un|ust enrchment are generay appcabe;
4. As aganst a person n good fath, one who s n bad fath not ony oses hs
rghts but may be hed abe for damages.
What are the t"o %isp&ta+)e pres&'ptio#s i there are "or?s( so"i#$( a#%
p)a#ti#$ o# a )a#%?
A works, sowng, and pantng are presumed (1) to be made by the owner and (2) at hs
expense, uness the contrary s proved (Artce 446).
R&)esE
Owner of Materas
If both n good fath:
1. LO
a. sha pay ther vaue
2. OM
a. rght to remove them wthout n|ury to the work constructed
3. If LO n bad fath
a. pay the vaue pus damages
b. OM can remove whether or not t destroys the work, wth damages
Buder, sower and panter
1. If both n good fath
a. LO has rght to approprate after payng necessary and other expenses; OR
b. To obge the BP to pay the prce and the S to pay rent
c. But, the second opton s not avaabe f the vaue of the and s hgher
than the budng or trees. In such case, pay rent t the owner does not
choose to approprate
2. If BPS n bad fath
a. BPS oses everythng but necessary expenses are rembursed
b. LO may:
b.1 demand demoton at expense of BPS;
b.2 OR compe BP to pay the prce of the and and S the proper rent
b.3 any opton enttes hm to damages
3. If LO n bad fath
a. pay vaue pus damages
b. remove even f t destroys, wth damages
If the materas beonged to thrd person, LO subsdary abe
O&t)i#e o accessio# i#%&stria)
Page 13
Notes on Property
Kathryn P. Dea Serna
O - Owner of and
B - Buder
M - Owner of materas
1. Artce 447
1
a. OB - n good fath
M - n good fath
(a) OB - rght of appropraton
(b) M - 1. rght of rembursement
2. mted rght of remova
b. OB - n bad fath
M - n good fath
(a) OB- no rght
(b)M- 1. rght of rembursement pus damages
2. absoute rght of remova pus damages
2. Artce 448
2
O - n good fath
BM - n good fath
a. O -
1) rght of appropraton
2) rght to demand prce of and or rent
b. BM -
1) rght of rembursement of necessary and usefu expenses f O
eects frst opton
2) rght of retenton f O eects frst opton
3. Artces 449-452
3
1
Artce 447. The owner of the and who makes thereon, personay or through
another, pantngs, constructons or works wth the materas of another, sha pay ther
vaue; and f he acted n bad fath, he sha aso be obged to the reparaton of damages.
The owner of the materas sha have the rght to remove them ony n case he can do so
wthout n|ury to the work constructed, or wthout the pantngs, constructons or works
beng destroyed. However, f the andowner acted n bad fath, the owner of the materas
may remove them n any event, wth a rght to be ndemnfed for damages.
2
Artce 448. The owner of the and on whch anythng has been but, sown or
panted n good fath, sha have the rght to approprate as hs own the works, sowng or
pantng, after payment of the ndemnty provded for n Artces 546 and 548, or to obge
the one who but or panted to pay the prce of the and, and the one who sowed, the proper
rent. However, the buder or panter cannot be obged to buy the and f ts vaue s
consderaby more than that of the budng or trees. In such a case, he sha be pay
reasonabe rent, f the owner of the and does not choose to approprate the budng or trees
after proper ndemnty. The partes sha agree the terms of the ease and n case of
dsagreement, the court sha fx the terms thereof.
Page 14
Notes on Property
Kathryn P. Dea Serna
O - n good fath
BM - n bad fath
(a) O -
1) Rght of appropraton pus damages
2) Rght to demand remova or demoton pus damages
3) Rght to demand prce of and or rent pus damages
(b) BM - no rght except rembursement of necessary expenses for
preservaton of and.
4. Artce 453
4
O - n bad fath
BM - n bad fath
(same as Artce 448)
5. Artce 454
5
O - n bad fath
BM - n good fath
(same as Artce 447)
6. Artce 455
6
a. O - n good or bad fath
B - n good or bad fath
3
Artce 449. He who buds, pants or sows n bad fath on the and of another, oses
what s but, panted or sown wthout rght to ndemnty.
Artce 450. The owner of the and on whch anythng has been but, panted or sown
n bad fath may demand the demoton of the work, or that the pantng or sowng be
removed, n order to repace thngs n ther former condton at the expenses of the person
who but, panted or sowed; or he may compe the buder or panter to pay the prce of the
and, and the sower the proper rent.
Artce 451. In the cases of the two precedng artces, the andowner s entted to
damages from the buder, panter or sower.
Artce 452. The buder, panter or sower n bad fath s entted to rembursement for
the necessary expenses of preservaton of the and.
4
Artce 453. If there was bad fath, not ony on the part of the person who but,
panted or sowed on the and of another, but aso on the part of the owner of such and, the
rghts of one and the other sha be the same as though both acted n good fath.
It s understood that there s bad fath on the part of the andowner whenever the act
was done wth hs knowedge and wthout opposton on hs part.
5
Artce 454. When the andowner acted n bad fath and the buder, panter or sower
proceeded n good fath, the provsons of Artce 447 sha appy.
6
Artce 455. If the materas, pants or seeds beong to a thrd person who has not
acted n bad fath, the owner of the and sha answer subsdary for ther vaue and ony n
the event that the one who made use of them has no property wth whch to pay.
Ths provson sha not appy f the owner makes use of the rght granted by Artce
450. If the owner of the materas, pants and seeds has been pad by the buder, panter or
sower, the atter may demand from the andowner the vaue of the materas and abor.
Page 15
Notes on Property
Kathryn P. Dea Serna
(a) Frst determne the rghts of O and B
(b) Then M can hod B prmary abe and O subsdary abe, except
under Artce 450.
b. O - n good or bad fath
B - n good or bad fath
M - n bad fath
(a) Frst determne the rghts of O and B
(b) Then wth respect to M, appy Artces 449-452 snce B sha be
consdered agent of M.
AF p)a#ts( i# +a% aith( o# his o# )a#%( pa)ay see%s +e)o#$i#$ to G-F. What
are the ri$hts a#% o+)i$atio#s o the parties?
"A" sha pay to "B" the vaue of the paay seeds and, at the same tme, ndemnfy
hm for any damage whch he may have suffered. "B" on the other hand, may choose
between demandng from "A" the payment of the vaue of the paay seeds pus damages or
the remova of the paay seeds wth or wthout n|ury to the pantng, pus damages (Artce
447).
S&ppose that i# the a+o*e pro+)e'( GAF ha% acte% i# $oo% aith( "hat are
the ri$hts a#% o+)i$atio#s o the parties?
"A" sha pay "B" the vaue of the paay seeds. "B" on the other hand, may choose
between demandng from "A" the payment of the vaue of the paay seeds or the remova of
such paay seeds, provded that t can be done wthout the pantng beng destroyed.
B +&i)t a ho&se o# the )a#% o Y i# $oo% aith. What are the ri$hts o the
parties?
The rghts of the owner of the and are:
He can approprate the house upon payment of ndemnty. The phrase "upon
payment of ndemnty" means that X has the rght to retan the house for as ong as Y has
not yet pad the ndemnty; or
He has the rght to se the and of the buder n good fath. He can compe the
buder to buy the and, uness the vaue of the and s consderaby more than the vaue of
the budng. If so, then the buder must pay rent.
The rght of the buder s to ask for ndemnty f the andowner opts to approprate
the house. The reason for ths s that the appropraton wthout compensaton woud
amount to solution inde*iti. Anyway, X s n good fath.
I# the pro+)e' a+o*e( ca# Y i)e a s&it or e@ect'e#t a#% pray or %e'o)itio#
&po# ?#o"i#$ that B +&i)t his ho&se o# his )a#%?
No, he has yet to make a choce. If he has not yet done so, he cannot ask for
e|ectment of X. But f he opted to se the and where the vaue of the same s not
consderaby more than the vaue of the house, and the buder does not pay the and, then
X can be e|ected (%$nacio vs. 5ilario, 76 Phil. 6'). If he cannot pay, he shoud not be
aowed to contnue usng the and (1a6a$ vs. 7useco, A,ruil 16, 1!'!).
Page 16
Notes on Property
Kathryn P. Dea Serna
S&ppose that the o"#er o the )a#% sho&)% a*ai) hi'se) o the seco#%
re'e%y pro*i%e% or i# Artic)e //A o the Ci*i) Co%e co'pe))i#$ the +&i)%er i#
$oo% aith to pay the *a)&e o the )a#% +&t s&ch +&i)%er ai)s to pay( %oes he
+eco'e a&to'atica))y the o"#er o the +&i)%er?
Under Artces 448 and 546 of the Cv Code, the owner of the
and has the rght to choose between appropratng the budng by rembursng the buder
the vaue thereof or compeng the buder to pay for hs and. Even ths second rght cannot
be exercsed f the vaue of the and s consderaby more than that of the budng. In
addton to the rght of the buder to be pad the vaue of hs mprovement, Artce 546 gves
hm the coroary rght of retenton of the property unt he s ndemnfed by the owner of
the and. There s nothng n the anguage of these two artces whch woud |ustfy the
concuson that upon the faure of the buder to pay the vaue of the and, when such s
demanded by the andowner, the atter becomes automatcay the owner of the
mprovement under Artce 445 (8ili,inas Colle$es, %nc, vs. 1im*an$, /.R. Nos. -+1&)1&+
1&)1., Se,t. &!, 1!'!).
What the# is the re'e%y )et to the o"#er o the )a#% i the +&i)%er ai)s to
pay?
Whe the Cv Code s sent on ths pont, gudance may be derved from decsons of
the Supreme Court, thus: (1) In 9iranda vs. 8adullan, '1 :./ 6&&6, the Supreme Court sad
that the partes may decde to eave thngs as they are and assume the reaton of essor
and essee, and shoud they dsagree as the amount of renta they can go to the court to
have the amount fxed. (2) Shoud the partes not agree to assume the reaton of essor and
essee, another remedy s suggested n %$anacio vs. 5ilario 76 Phil. 6', wheren the
Supreme Court rued that the owner of the and s entted to have the mprovement
removed when after havng chosen to se hs and the buder n good fath fas to pay for
the same. (3) A further remedy s ndcated n ;ernardo vs. ;ataclan, 66 Phil. '!, where the
Supreme Court approved the sae of the and and mprovement n the pubc aucton
appyng the proceeds thereof frst to the payment of the vaue of the and and the excess, f
any, to be devered to the owner of the house n payment thereof (8ili,inas Colle$es, %nc.
vs. 1im*an$, su,ra).
B o"#s a parce) o )a#%. Y +&i)t a ho&se o# it. The )a#% is "orth P, Mi))io#.
The ho&se is "orth P2::( :::.::. Y is a +&i)%er i# $oo% aith. Ca# B co'pe) Y to
+&y the )a#%? Why?
No, because the vaue of the and s consderaby more than the vaue of the budng.
In ths case, the remedy s forced ease (Artce 448).
I the )a#%o"#er chooses to appropriate the +&i)%i#$( ca# the +&i)%er as?
the o"#er o the )a#% to se)) it i#stea%? Why?
No, because the opton to approprate the budng or se the and beongs to the
andowner. The ony rght of the buder n good fath s the rght of rembursement, not to
compe the owner of the and to se (<uemuel vs. :laes, 1 SCRA 11'!). The opton s not to
buy but to se. The opton s gven to the andowner because hs rght s oder; and because
of the prncpe of accesson, he s entted to the thng attached to hs and.
May a )essee +e a +&i)%er i# $oo% aith?
No. In 8rederico /eminiano, et al., /.R. No. 1&.., 0ul6 &=, 1!!6, t was hed that
essees are not buders n good fath. They came nto possesson of the ot by vrtue of a
contract. They are then estopped to deny ther andords tte, or to assert a better tte not
Page 17
Notes on Property
Kathryn P. Dea Serna
ony n themseves, but aso n some thrd person whe they reman n possesson of the
eased premses and unt they surrender possesson t the andord.
Ca# the o"#er o the )a#% re'o*e the co#str&ctio#s?
Snce remova s not one of the remedes bestowed upon hm by aw, t woud be
avaabe ony f and when he chooses to compe the buder to buy the and at a reasonabe
prce, but f the atter does not do so, hs optons are mted to (1) appropratng the budng
after payment of proper ndemnty; or (2) obgng the atter to buy the ot occuped by the
structure. He cannot exercse a remedy of hs own kng (1ecno$as Phils. vs. CA, /.R. No.
1))!=, 8e*ruar6 1, 1!!7).
What are the ri$hts( o a#y o a +&i)%er i# +a% aith?
As a rue, he has no rght. But he s entted to rembursement for necessary
expenses for the preservaton of the and, not the vaue of the budng (Artce 452). The
reason for ths rue s, after a, the owner woud have borne the same expenses of
preservaton of the and.
What are the ri$hts o the o"#er o the )a#% i# case there is a +&i)%er i#
+a% aith?
1. To approprate the budng wthout payment of ndemnty pus damages. In ths
case, the buder s ke a donor;
2. He can demand the demoton of the house pus damages;
3. He can compe the buder to buy the and even f the vaue s consderaby more
than the vaue of the budng pus damages (Artce 450 and 451).
May a +&i)%er i# $oo% aith retai# possessio# o the )a#% a#% the +&i)%i#$ i#
case the )a#%o"#er appropriates the +&i)%i#$ +&t has #ot yet pai% its *a)&e? !o"
a+o&t i the +&i)%er is a )essee?
Yes. The buder n good fath can retan possesson of the and and the budng f the
andowner has not yet pad the vaue of the mprovement. Ths s so because of hs beng a
buder n good fath.
If t s a essee, then the rght of retenton s not avaabe because he s not a
possessor n good fath.
A is the o"#er o the )a#% a#% - is the +&i)%er( C ( thir% perso#( ha%
&r#ishe% 'ateria)s i# the co#str&ctio# o the +&i)%i#$( there is sti)) a +a)a#ce o
PA( 4:: "hich has #ot yet +ee# pai% to hi' +y -. S&ppose that( i#stea% o a*ai)i#$
hi'se) o a#y o the three re'e%ies speciie% a+o*e( the o"#er o the )a#% chose
to see? reco*ery +y as?i#$ or a "rit o e3ec&tio#( a#% s&+se>&e#t)y( properties
o the +&i)%er i#c)&%i#$ the ho&se are )e*ie% &po# a#% so)% at p&+)ic a&ctio# "ith
the o"#er or the )a#% as hi$hest +i%%er( "hat is the eect &po# the ri$hts o the
parties?
Such a remedy w pre|udce the owner of the and. When there s a cam of a thrd
party to the proceeds of the sae superor to the cam of the owner of the and, the
executon credtor, as successfu bdder, must pay hs bd n cash as a condton precedent to
the ssuance to hm of the certfcate of sae, n the nstant case, a thrd party has an
unsatsfed cam of P8, 200 aganst the buder whch consttute a en on the budng as
specfcay provded n Artce 2252 of the Cv Code. As such, t s superor to the cam of
the owner of the ad nsofar as the proceeds of the sae of sad budng are concerned.
Page 18
Notes on Property
Kathryn P. Dea Serna
Hence, the owner f the and as successfu bdder must pay n cash the amount of hs bd. As
a matter of fact, such remedy w now resut n the contnuaton of the nvountary
partnershp between the owner of the and and the buder, because the proceeds of the
same, n effect, w now consttute a parta payment of the vaue of the and (8ili,inas
Colle$es, %nc. vs. 1im*an$, su,ra).
A a#% - &#?#o"i#$)y +&i)t a portio# o their ho&se o# a )ot +e)o#$i#$ to B
a#% Y. S&+se>&e#t)y( the )atter +ro&$ht a# actio# or reco*ery o the )ot(
i#c)&%i#$ a portio# &po# "hich a part o the ho&se is +&i)t. The tria) co&rt( ater
tria)( or%ere% the or'er to *acate the )a#% a#% to pay a 'o#th)y re#ta) o P,:(
::: or' the i)i#$ o the co'p)ai#t &#ti) they *acate the sa'e. Is the %ecisio#
correct?
In /rana and 1oral*a vs. Court of A,,eals, /.R. No. -+1&=)6, Au$ust .1, 1!6, t was
hed that A and B are n good fath; consequenty under Artce 448 of the Cv Code, A and B
has the choce of ether appropratng the porton of the house of A and B whch s on ther
and upon payment of the proper ndemnty, or seng to A and B that part of the and on
whch the mprovement stands. However, t woud be mpractca for them to choose the frst
aternatve for the whoe budng mght be rendered useess. The more workabe souton s
for them to se to A and B the part of ther and on whch the house s but. Of course, ths s
not possbe f the vaue of the and s consderaby more than that of the house. If such be
the case, then A and B must pay reasonabe rent. The partes must come to an agreement
as to the condtons of the ease, and shoud fa to do so, then the court sha fx the same.
(Artce 448, Cv Code). In ths connecton, the tra court erred n orderng A and B to pay a
monthy renta of P10, 000 from the date of the fng of the compant unt they vacate the
and. A buder n good fath may not be requred to pay the renta. Ths s so because he has
a rght to retan the and on whch he has but n good fath unt he s rembursed the
expenses ncurred by hm.
GAF +&i)t a $ara$e o# a )ot a%@oi#i#$ his property ?#o"i#$ it to +e)o#$ to
G-.F G-F( "ho "as a"are thereo( oere% #o o+@ectio#. What are the ri$hts a#%
o+)i$atio#s o the parties?
Snce both "A" and "B" had acted on bad fath (Artce 453, par 1,CC). Consequenty,
"B" sha have the rght to approprate the garage as hs own, after payment of necessary
and usefu expenses to "A" t n accordance wth Artces 546 and 548 of the Cv Code, or to
obge "A" to pay the prce of the and. It must be noted, however, that "A" cannot be
obged to buy the and f ts vaue s consderaby more than that of the garage. In such
case, he sha merey pay reasonabe rent, f "B" does not choose to approprate the garage.
(Artce 448, CC).
I a certai# perso# +&i)%s( p)a#ts or so"s i# +a% aith o# )a#% +e)o#$i#$ to
a#other( "ho is i# $oo% aith( "hat are the ri$hts a#% o+)i$atio#s o the parties?
In such case, the owner of the and may ether:
1. Approprate whatever has been but, panted or sown wthout ndemnfyng
the buder, panter, sower for the vaue of the materas (Artce 449,CC); or
2. Demand the demoton of the works or the remova of the budng, pantng
or sowng, n order to restore thngs to ther former condton at the expense
of the buder, panter or sower (Artce 450,CC); or
3. Compe the buder or panter to pay the prce of the and, and the sower the
proper rent (Artce 450, CC).
Page 19
Notes on Property
Kathryn P. Dea Serna
Whatever optons he may choose, he can aso recover damages from such buder,
panter or sower (Artce 451, CC).
The buder, the panter or sower, on the other hand, has no rght whatsoever except
the rght to be rembursed for necessary expenses whch he may have ncurred for the
preservaton of the and (Artce 452, CC).
What is 'ea#t +y $oo% aith a#% +a% aith i# accessio#?
As apped to the buder, panter or sower, good fath conssts n gnorance of the
ownershp of another, whe bad fath conssts n the knowedge of such ownershp. In other
words, there s good fath f he s not aware that there s a faw or defect n hs tte or mode
of acquston whch nvadates t, whe there s bad fath f he s aware of such faw or
defect (Artce 526).
As apped ether to the owner of the and or to the owner of the materas, good fath
conssts n the gnorance of the acts of the buder, panter or sower, or f he was aware of
such acts, there was opposton on hs part, whe bad fath conssts n knowedge of such
acts and wthout opposton on hs part (Artce 453, par. 2).
May $oo% aith co7e3ist "ith #e$)i$e#ce?
Good fath does not necessary excude neggence, whch gves rght to damages
under Artce 2176 (Artce 456).
ACCESSION NATURAL
Who o"#s the accretio# $ra%&a))y recei*e% +y a )a#% ro' the eects o the
c&rre#t o "aters?
To the owners of ands ad|onng the banks of rvers beong the accreton whch they
graduay receve from the effects of the current of the rver (Artce 457).
What are the or's o accession natural?
1. Auvum (Artce 457);
2. Avuson (Artce 459);
3. Change of course of rvers (Artces 461 - 462); and
4. Formaton of sands (Artces 464 - 465).
What is a))&*i&'?
Auvum (or alluvio) s the so deposted or added to (accreton) the ands ad|onng
the banks of rvers, graduay receved as an effect of the current of the waters. By aw, the
accreton s owned by the owner of the estate frontng the rver bank (rparan owner).
<iere#tiate +et"ee# a))&*i&' a#% accretio#.
Athough often used synonymousy n connecton wth Artce 457, there are technca
dfferences between auvum and accreton:
1. Accreton s the process whereby the so s deposted, whe auvum s the so
deposted on the estate frontng the rver bank; the owner of such estate s the
rparan owner;
Page 20
Notes on Property
Kathryn P. Dea Serna
2. Accreton s a broader term because auvum, strcty speakng, appes ony to the
so deposted on rver banks. It s possbe that a so depost be made aso on the
banks of akes. In ths case, athough t s an accreton, t s not caed auvum,
athough the rue as to ownershp s the same.
What are the esse#tia) re>&isites o a))&*i&'?
1. The depost shoud be gradua and mperceptbe (as a process);
2. The cause s the current of the rver (and not due to works expressy desgned for the
purpose)C
3. The current must be that of a rver (f a ake, the Spansh Law on Waters must appy;
f the sea, the depost beongs to the State);
4. The rver must contnue to exst (otherwse, f the rver dsappears, Artces 461 and
not Artce 457 shoud appy);
5. The ncrease must be comparatvey tte, and not, for exampe, such as woud
ncrease the area of the rparan owner by over one hundred ffty percent).
What sho&)% the riparia# o"#er %o so that the accretio# "i)) +e)o#$ to hi'?
It s not necessary that the rparan owner shoud make an express act of possesson,
the accesson beng automatcay hs the moment the so depost can be seen.
Why %oes the )a" *est a&to'atica))y the o"#ership o the a))&*i&' to the
riparia# o"#er? .What are the reaso#s "hy a))&*i&' is $ra#te% to the riparia#
o"#er?1
a. To compensate hm for the oss he may suffer due to eroson or the
destructve force of the water and danger from foods;
b. To compensate hm because the property s sub|ect to encumbrances and
ega easements;
c. The nterests of agrcuture requre that the so be gven to the person who s
n the best poston to cutvate the same;
d. Snce after a, t cannot be sad wth certanty from whom the so came, t
may |ust as we be ogcay gven to hm who can best utze the property.
A ho&se #ear a ri*er "as e#c)ose% +y a hi$h "a)) "hich protecte% the
estate. Sho&)% a))&*i&' i''e%iate)y o&tsi%e the "a)) +e)o#$ to the o"#er o the
ho&se?
No, the auvum here does not beong to the owner of the house or and because the
reason why auvum s aowed by aw does not exst here. The presence of the wa hardy
makes possbe any oss from the waters that the estate may suffer. Hence, the auvum
cannot be gven to the owner of the estate.
Is t requred that the rparan owner to perform an act of possesson to become the
owner of the auva depost?
I the riparia# o"#er has tit)e to the )a#%( %oes that co*er the a))&*ia)
%eposit? Why?
No, because there s a specfc technca descrpton of the and. There must frst be
an ndependent appcaton for regstraton of the and. (/rande vs. CA, 0une ., 1!6&)
May the a))&*ia) %eposits +e )ost +y prescriptio# i# a*or o a#other?
Reaso#s.
Page 21
Notes on Property
Kathryn P. Dea Serna
Yes, because f t s not covered by a Torrens tte. It can be ost by prescrpton after
30 years. (9a3imo 0a$ualin$, i*id.)
B +o&$ht the )a#% o Y i# i#sta))'e#t +asis paya+)e i# 0 years. S&ppose
there is a# a))&*ia) %eposit( "ho o"#s the sa'e? Why?
X, because he need not competey pay the and. Equtabe and benefca tte s
enough. (Director of -ands vs. Ri#al, Dec. &!, 1!')
The #ortheast portio# o the )a#% o B is +o&#%e% +y the Ma#i)a -ay. I
there is a# accretio# or'e%( "ho o"#s the accretio#? Why?
The accreton beongs to the State, because t s an accreton on a sea bank, Mana
Bay beng an net or an arm of the sea. (5eirs of 2miliano Navarro vs. %AC, /.R. No. 6)166,
8e*. 1&, 1!!7)
!o" a+o&t i the )a#% a%@oi#s the La$&#a <e -ay? Who o"#s the accretio#?
It beongs to the owner of the and ad|onng t because Laguna De Bay s a ake, the
accreton on whch beongs to the owner of the and contguous thereto. (2miliano Navarro,
i*id)
What is a +ay?
It s an openng nto the and where the water s shut n a sdes except at the
entrance; an net of the sea, dstnct from a rver, a bendng or curbng of the shore of the
sea or of ake. (2miliano Navarro, i*id)
I a p&+)ic ser*ice co#str&ctio# is 'a%e o# a ri*er +a#?( is the o"#er o the
)a#% +e co#si%ere% a riparia# o"#er? Who "i)) o"# the accretio#?
If a pubc servce constructon, ke a raroad or a road, s made on a rver bank, t s
evdent that he owner of the and can no onger be consdered a rparan owner. Therefore, t
s the government or the raroad company whch w own the accreton. Here, the strp of
and used s no onger the property of the former rparan owner.
I i#stea% o a p&+)ic co#str&ctio#( there is o#)y a# ease'e#t or the +e#eit
o #a*i$atio#( )oata$e( ishi#$ a#% sa)*a$eC "i)) the riparia# o"#er ha*e a ri$ht
o*er the accretio#?
If nstead of a pubc servce constructon, there s ony an easement for the beneft of
navgaton, foatage, fshng and savage, the rght of the rparan owner to the accreton
subssts, because n easements, the owner of the servent estate does not ose hs
ownershp over the porton occuped. It s beeved that ths prncpe remans even f under
the new cv Code, the ast paragraph of Artce 638 states "If t s necessary for such
purpose to occupy and of prvate ownershp, the proper ndemnty sha frst be pad."
Payment of the ndemnty does not extngush ownershp over the and.
I a po#% or a )a$oo# is %rie% &p +eca&se o the #at&ra) %ecrease o the
"aters( %oes the o"#er o the estate a%@oi#i#$ the sai% po#% or )a$oo# ac>&ire
the )a#% )et %ry?
The owners of estates ad|onng ponds or agoons do not acqure the and eft dry by
the natura decrease of the waters, or ose that nundated by them n extraordnary foods
(Artce 458).
Page 22
Notes on Property
Kathryn P. Dea Serna
<ei#e a*&)sio#
It s the process whereby the current of a rver, creek, or torrent segregates from an
estate on ts bank a known porton of and and transfers t to another estate.
Who o"#s a ?#o"# portio# o a parce) o )a#% se$re$ate% ro' the )a#% o
a#other?
Whenever the current of a rver, creek or torrent segregates from an estate on ts
bank a known porton of and and transfers t to another estate, the owner of the and to
whch the segregated porton beonged retans the ownershp of t, provded he removes the
same wthn two years (Artce 459).
<isti#$&ish +et"ee# a))&*i&' a#% a*&)sio#.
ALLUVIUM AVULSION
The depost of the so here s gradua. Sudden or abrupt process may be seen.
The so cannot be dentfed. Identfabe or verfabe.
It beongs to owner of property to whch
t s attached.
It beongs to owner from whose property
t was detached.
S&ppose% the %etache% portio# is p)ace% o# top a#% #ot 'ere)y a)o#$si%e
or a%@ace#t to a#otherHs )a#%( "i)) Artic)e /09 app)y?
In avuson, t s essenta that the detached porton be known or dentfabe.
Therefore, mere pacng on top w not make the artce nappcabe as ong as dentfcaton
s st possbe. But f because of some force, say, contnuous ran, the two have so mxed
wth each other that dentfcaton cannot take pace, the artce shoud not appy. In ths
case, the prncpes of conmxton or confuson shoud, t s beeved, appy.
S&ppose the %etache% portio# is #ot attache% to a#otherHs )a#% +&t si'p)y
is i# the 'i%%)e o the ri*er( "hat r&)e app)ies?
Ownershp st remans wth the person from whom whose and t had been detached
as n Artce 463.
What is the r&)e o# &proote% trees?
Trees uprooted and carred away by the current of the waters beong to the owner of
the and upon whch they may be cast, f the owners do not cam them wthn sx months. If
such owners cam them, they sha pay the expenses ncurred n gatherng them or puttng
them n a safe pace (Artce 460).
What i the trees ha*e +ee# tra#sp)a#te%( "i)) Artic)e /5: sti)) app)y?
Ownershp st pertans to the person who ost the trees provded that the cam was
made propery.
What is the eect i a c)ai' has +ee# 'a%e "ithi# the si3 'o#th7perio% +&t
the trees "ere #ot re'o*e%( ca# a# actio# sti)) +e i)e% ater"ar%s or the
reco*ery o the trees?
Yes, provded the acton s brought wthn the perod set by aw for prescrpton of
movabe property.
Page 23
Notes on Property
Kathryn P. Dea Serna
Who o"#s a# a+a#%o#e% ri*er +e%?
Rver beds whch are abandoned through the natura change n the course of the
waters i,so facto beong to the owners whose ands are occuped by the new course n
proporton to the area ost. However, the owners of the ands ad|onng the od bed sha
have the rght to acqure the same by payng the vaue thereof, whch vaue sha not exceed
the vaue of the area occuped by the new bed (Artce 461).
What re>&isites '&st co#c&r i# or%er that Artic)e /5, .cha#$e or ri*er +e%1
to app)y?
1. The change must be sudden n order that the od rver bed may be dentfed;
2. The changng of the course must be more or ess permanent, and not temporary
over-foodng of anothers and;
3. The change of the rver bed must be a natura one, caused by natura forces and not
by artfca means;
4. There must be a defnte abandonment by the government. (The government must
not take steps to brng the rver to ts od bed);
5. The rver must contnue to exst, that s, t must not competey dry up or dsappear
(as the rver bed woud beong to pubc domnon).
The estates o A a#% - ace each other a#% a%@oi# a ri*er. Later( the ri*er
+e% "as a+a#%o#e% +eca&se o the #at&ra) cha#$e i its co&rses. A #e" ri*er +e%
"as or'e% i# the )a#% o C. Who o"#s the a+a#%o#e% ri*er +e%?
C owns the entre abandoned rver bed to compensate hm for the oss of the and
now occuped by the new rver bed.
NOTE: "In proporton to the area ost" has no appcaton f ony one owner has ost;
here, he gets the entre abandoned rver bed. The "proporton" appes when there are two
or more owners who have ost a porton of ther ots; n ths case, the entre abandoned bed
w go to them proportonatey, that s, n proporton to the area each has ost.
D#%er Artic)e /5,( a ri*er +e% a+a#%o#e% thro&$h #at&ra) cha#$es ipso
acto +e)o#$s to the o"#ers o )a#%s thro&$h "hich the #e" ri*er tra*erses.
S&ppose the cha#$e "as 'a#7'a%e( is the r&)e app)ica+)e?
Yes, even f the change was man-made, the rue n Artce 461 appes. In ;aes vs.
CA, /.R. No. 1)6', 0ul6 6, 1!!., f the rparan owner s entted to compensaton for the
damage to or oss of hs property due to natura causes, there s a the more reason to
compensate hm when the change n the course of the rver s effected through artfca
means.
Who o"#s #e" ri*er +e% "hich is or'e% +y #at&ra) ca&ses o# a pri*ate
estate?
Whenever a rver, changng ts course by natura causes, opens a new bed through a
prvate estate, ths bed sha become of pubc domnon (Artce 462).
The estate o A a%@oi#s a ri*er. S&+se>&e#t)y( the c&rre#t o the ri*er
%i*i%es itse) i#to +ra#ches aecti#$ AH property. Who o"#s the iso)ate% piece o
)a#% or the is)a#% i# the 'i%%)e o the %i*i%e% ri*er?
Page 24
Notes on Property
Kathryn P. Dea Serna
Whenever the current of a rver dvdes tsef nto branches, eavng a pece of and or
part thereof soated, the owner of the and retans hs ownershp. He aso retans t f a
porton of and s separated from the estate by the current (Artce 463).
Who o"#s is)a#%s or'e% +y &#i%e#tiia+)e acc&'&)ate% %eposits?
It depends.
1. If formed on the sea -
Wthn the terrtora waters or martme zone or |ursdcton of the Phppnes
- State (Artce 464). Ths s patrmona property.
Outsde of our terrtora |ursdcton - the frst country to effectvey occupy
the same.
2. If formed on akes, or navgabe or foatabe rvers - the State. Ths s aso patrmona
property.
3. If formed on non-navgabe or non-foatabe rvers -
If nearer n margn to one bank, owner of nearer margn s soe owner (Artce
465).
Non - navgabe - opposte of the above.
What is the r&)e to o))o" i a #e" is)a#% is or'e% +et"ee# the o)%er is)a#%
a#% the +a#??
In ths case, the owner of the oder sand s consdered a rparan owner, and f the
new sand s nearer n margn to the oder sand, the owner of the oder sand shoud be
consdered aso the owner of the new sand.
SECTION 2. T!E RI8!T OF ACCESSION WIT!
RESPECT TO MOVA-LE PROPERTY
What are the types o accessio# "ith respect to 'o*a+)e property?
1) Ad|uncton;
2) Mxture (conmxton or confuson); and
3) Specfcaton.
What is a%@&#ctio#?

It s the process by vrtue of whch two movabe thngs beongng to dfferent owners
are unted n such a way that they form a snge ob|ect.
What are the %iere#t ?i#%s o a%@&#ctio#?
1) Incuson (Exampe: sapphre set on a rng);
2) Soderng (Exampe: |onng egs made of ead to a body aso made of ead);
3) Escrtura (or wrtng);
4) Pntura (or pantng); and
5) Weavng
What is the r&)e i# case o a%@&#ctio#?
Page 25
Notes on Property
Kathryn P. Dea Serna
Whenever two movabe thngs beongng to dfferent owners are, wthout bad fath,
unted n such a way that they form a snge ob|ect, the owner of the prncpa thng acqures
the accessory, ndemnfyng the owner thereof for ts vaue (Artce 466).
Whe# is a thi#$ co#si%ere% a pri#cipa) a#% "he# is it co#si%ere% a#
accessory? What are the tests?
1) The prncpa thng, as between two thngs ncorporated, s deemed to be that to
whch the other has been unted as an ornament, or for ts use or perfecton (Artce
467).
2) If t cannot be determned by the foregong rue whch of the two thngs ncorporated
s the prncpa one, the thng of greater vaue sha be so consdered (Artce 468);
3) If both thngs have equa vaue, the prncpa s that of the greater voume (Artce
468);
4) In pantng and scupture, wrtngs, prnted matter, engravng and thographs, the
board, meta, stone, canvas, paper or parchment sha be deemed the accessory
thng (Artce 468).
What is the r&)e "he# there ca# +e separatio# o the thi#$s "itho&t i#@&ry?
Whenever the thngs unted can be separated wthout n|ury, ther respectve owners
may demand ther separaton (Artce 469, par. 1).
What is the r&)e i the accessory is 'ore precio&s tha# the pri#cipa)?
In case the thng unted for the use, embeshment or perfecton of the other, s
much more precous than the prncpa thng, the owner of the former may demand ts
separaton, even though the thng to whch t has been ncorporated may suffer some n|ury
(Artce 469, par. 2).
What is the r&)e i the o"#er o the accessory is i# +a% aith?
Whenever the owner of the accessory thng has made the ncorporaton n bad fath,
he sha ose the thng ncorporated and sha have the obgaton to ndemnfy the owner of
the prncpa thng for the damage he may have suffered (Artce 470, par. 1).
What is the r&)e the o"#er o the pri#cipa) thi#$ acte% i# +a% aith?
If the one who has acted n bad fath s the owner of the prncpa thng, the owner of
the accessory thng sha have the rght to choose between the former payng hm ts vaue
or that the thng beongng to hm be separated, even though, for ths purpose t be
necessary to destroy the prncpa thng; and n both cases, furthermore, there sha be
ndemnty for damages (Artce 470, par. 1).
What is the r&)e i +oth acte% i# +a% aith?
If ether one of the owners has made the ncorporaton wth the knowedge and
wthout the ob|ecton of the other, ther respectve rghts sha be determned as though both
acted n good fath (Artce 470, par. 3).
What is the r&)e i the co#se#t o the o"#er o the 'ateria)s has #ot +ee#
o+tai#e%?
Page 26
Notes on Property
Kathryn P. Dea Serna
Whenever the owner of the materas empoyed wthout hs consent has a rght to an
ndemnty, he may demand that ths consst n the devery of a thng equa n knd and
vaue, and n a other respects, to that empoyed, or ese n the prce thereof, accordng to
expert apprasa (Artce 471). Sentmenta vaue must aso be consdered (Artce 475).
What is 'i3t&re?
It s the combnaton or unon of materas where the respectve denttes of the
component eements are ost.
What are the t"o ?i#%s o 'i3t&re?
1) Conmxton - sods are mxed;
2) Confuson - quds are mxed.
What are the r&)es i# case o 'i3t&re?
1) If the mxture s caused by the owner n good fath, or by the w of both owners,
or by chance (accdent), or by a common agent, then co-ownershp resuts, each
owner acqurng an nterest or rght proportona to the vaue of hs materas
(Artce 472);
2) If the mxture s made by one owner n bad fath, then he oses hs matera n
favor of the other; and he s abe for damages (Artce 473, par. 2);
3) If both are n bad fath, they are consdered to have acted n good fath;
4) If by the w of ony one owner, but n good fath, each owner acqurng an
nterest or rght proportona to the vaue of hs materas (Artce 473, par. 1)
|Same as Artce 472|
5) If the mxture was caused by the neggence of one of the partes, the party
neggent s abe for cul,a a4uiliana and shoud ndemnfy for damages (Artce
2176). |Note that good fath does not necessary excude neggence (Artce
456).
What is speciicatio#?
Specfcaton s the gvng of a new form to anothers matera through the appcaton
of abor where abor becomes the prncpa. The matera undergoes a transformaton or
change of dentty.
What are the r&)es i# speciicatio# .Artic)e /6/1?
a) If the worker (prncpa) s n good fath:
1) He approprates the new thng;
2) But he must ndemnfy for the materas
Excepton: If the matera (accessory) s more precous than the new thng or s more
vauabe, the owner of the matera has an opton:
1) To get the new thng but he pays for the work; or
2) To demand ndemnty for the matera.
b) If the worker s n bad fath, the owner of the matera has an opton:
1) To approprate the work wthout payng for the abor; or
2) To demand ndemnty for the matera pus damages.
Page 27
Notes on Property
Kathryn P. Dea Serna
Excepton: The opton of appropraton s not avaabe f the vaue of the resutant work s
more vauabe for artstc or scentfc reasons
<isti#$&ish speciicatio# ro' 'i3t&re a#% a%@&#ctio#.
Ad|uncton Mxture Specfcaton
Invoves at east two
thngs
Invoves at east two
thngs
May nvove ony one thng
(may be more) but form s
changed
As a rue, accessory
foows prncpa
As a rue, co-ownershp
resuts
As a rue, accessory
foows the prncpa
The thngs |oned retan
ther nature
The thngs mxed or
confused may ether retan
or ose ther respectve
denttes
The new ob|ect retans or
preserves the nature of
the orgna ob|ect
C!APTER 2. IDIETIN8 OF TITLE
What are the re>&isites i# or%er that a# actio# 'ay +e +ro&$ht to re'o*e
the c)o&% or to >&iet the tit)e to rea) property or a#y i#terest therei#?
An acton may be brought to remove the coud or to quet the tte to rea property or
nay nterest theren f the foowng requstes are present:
1) The pantff must have a ega or equtabe tte to, or nterest n the rea property
whch s the sub|ect matter of the acton (Artce 477);
2) There must be a coud on such tte (Artce 476);
3) Such coud must be due to some nstrument, record, cam, encumbrance or
proceedng whch s apparenty vad or effectve but n truth and n fact nvad,
neffectve, vodabe or unenforceabe, and s pre|udca to the pantffs tte (Artce
476);
4) When the contract, nstrument or other obgaton has been extngushed or has
termnated, or has been barred by extnctve prescrpton (Artce 478);
5) The pantff must return to the defendant a benefts he may have receved from the
atter, or remburse hm for expenses that may have redounded to hs beneft (Artce
479).
What are the ?i#%s o actio# reerre% to i# Artic)e /65?
1. Remeda - an acton to remove the coud or to quet tte.
2. Preventve - an acton to prevent a future coud or doubt - action 4ue timet.
What are the reaso#s or a))o"i#$ the actio# to >&iet tit)e?
1) The preventon of eventua tgaton;
2) The protecton of the true tte and possesson; and
3) The promoton of rght and |ustce.
What is the #at&re o the actio# to >&iet tit)e?
Page 28
Notes on Property
Kathryn P. Dea Serna
The acton s one in ,ersonam and not in rem, therefore, the resut s not bndng
upon the whoe word. It s enforceabe ony aganst the defeated party, or prves. However,
techncay, the acton s reay 4uasi in rem, snce t s an acton in ,ersonam concernng
rea property.
May there +e a# actio# to >&iet tit)e i# perso#a) properties?
No, because the aw says "rea property or any nterest theren." But by anaogy, the
same prncpe shoud appy to persona property, partcuary vesses, whch athough
movabe, partake of the nature of rea property.
<oes the actio# to >&iet tit)e prescri+e?
It depends.
1) If the pantff s n possesson of the property, the acton does not prescrbe.
2) If the pantff s not n possesson of the property, the acton may prescrbe. (10 or 30
years) Moreover, even f the acton s brought wthn the perod of mtatons, t may
be barred by aches where there s no excuse offered for the faure to assert tte
sooner.
What are the %iere#ces i# eects "he# the p)ai#ti is i# or o&t o
possessio#?
1. If pantff s n possesson:
1) Perod may not prescrbe;
2) Ony rght s to remove or prevent coud.
2. If pantff s out of possesson:
1) Perod prescrbes;
2) Asde from beng gven the rght to remove or prevent coud, he may aso brng the
ordnary actons of e|ectment, pubcana or renvdcatora wthn the proper
prescrptve perod.
I# case o co#)ict +et"ee# the Ci*i) Co%e a#% the pri#cip)es o the $e#era)
)a" o# the s&+@ect( "hich sho&)% pre*ai)?
The Cv Code shoud preva.
C!APTER /
RDINODS -DIL<IN8S AN< TREES
IN <AN8ER OF FALLIN8
Page 29
Notes on Property
Kathryn P. Dea Serna
What is the r&)e i# case o +&i)%i#$ etc. i# %a#$er o a))i#$?
1) The owner thereof s obged to demosh t or execute the necessary work n order to
prevent t from fang (Artce 482, Par. 1);
2) If the propretor does not compy wth ths obgaton, the admnstratve authortes
may order the demoton of the structures at the expense of the owner, or take
measures to nsure pubc safety (Artce 482, par. 2);
3) If the constructon or structures fa, the owner woud be abe for damages (Art.
2190).
What is the r&)e "ith respect to )ar$e trees a+o&t to a))?
1) The owner of the tree s obged to fe and remove t;
2) If he shoud not do so, t sha be done at hs expense by order of the admnstratve
authortes.
TITLE III. CO7OWNERS!IP
<ei#e co7o"#ership.
It s that state where an undvded thng or rght beongs to two or more persons.
What $o*er#s co7o"#ership?
a. Contracts
b. Speca ega provsons
c. Provsons of the Tte on Co-ownershp
What are the so&rces o co7o"#ership? .!o" %oes it arise?1
1) By aw - ke party was, party dtches, etc.;
2) By contract;
3) By chance ke commxton, confuson, hdden treasure;
4) By occupaton or occupancy; and
5) By successon or w.
<isti#$&ish te#a#cy i# co''o# ro' @oi#t te#a#cy.
TENANCY IN COMMON
(CO-OWNERSHIP)
|OINT TENANCY
1. Ths nvoves a physca whoe. But
there s an dea (abstract) dvson; each
co-owner beng the owner of hs own
dea share.
1. Ths aso nvoves a physca whoe. But
there s no dea dvson; each and a of
them own the whoe thng.
2. Each co-owner may dspose of hs dea
or undvded share (wthout boundares)
wthout the others consent.
2. Each co-owner may not dspose of hs
own share wthout the consent of a the
rest, because he reay has no dea
share.
3. If a co-owner des, hs share goes to
hs own hers.
3. If a |ont-tenant des, hs share goes by
accreton to the other |ont-tenants by
vrtue of ther survvorshp or jus
accrecendi.
4. If a co-owner s a mnor, ths does not 4. If one |ont-tenant s under a ega
Page 30
Notes on Property
Kathryn P. Dea Serna
beneft the others for the purpose of
prescrpton, and prescrpton therefore
runs aganst them.
dsabty (ke mnorty), ths benefts the
other aganst whom prescrpton w not
run.
What are the characteristics o co7o"#ership?
1. There must be more than one sub|ect or owner;
2. There s one physca whoe dvded nto dea (undvded) shares;
3. Each dea share s defnte n amount, but not physcay segregated from the
rest;
4. Regardng the physca whoe, each co-owners must respect each other n the
common use, en|oyment, or preservaton of the physca whoe;
5. Regardng the dea share, each co-owner hods amost absoute contro over the
same;
6. It s not a |urdca person; and
7. A co-owner s n a sense a trustee for the other co-owners.
<isti#$&ish co7o"#ership ro' a# or%i#ary part#ership.
CO-OWNERSHP ORDINARY PARTNERSHIP
1. No ega personaty. 1. Has ega or |urdca personaty.
2. Created by contract or by other thngs. 2. Created by contract ony, express or
mped.
3. Purpose s for coectve en|oyment. 3. Purpose s proft.
4. Agreement for t to exst s vad ony
for 10 years.
4. There s no term mt set by aw.
5. As a rue, there s no mutua
representaton.
5. As a rue, there s mutua
representaton.
6. Not dssoved by death or ncapacty of
co-owner
6. Is dssoved by the death or ncapacty
of a partner.
7. Can dspose of hs share wthout
consent of others
7. Cannot substtute another as partner
n hs pace wthout the consent of the
others.
8. Profts must aways depend on
proportonate shares.
8. Profts may be stpuated upon.
<isti#$&ish co7o"#ership ro' co#@&$a) part#ership.
CO-OWNERSHIP CON|UGAL PARTNERSHIP
1. May arse by an ordnary contract. 1. Arses ony because of the marrage
contract.
2. Sex of the co-owners s mmatera. 2. One must be mae, the other femae.
3. Co-owners may be 2 or more. 3. Con|uga owners are aways two.
4. Profts are proportona to respectve
nterest.
4. Profts are generay 50-50 uness a
contrary stpuaton s n a marrage
settement.
5. Death of one does not dssove the co-
ownershp.
5. Death of ether husband or wfe
dssoves the con|uga partnershp.
6. Generay a the co-owners admnster. 6. Generay, the husband s the
admnstrator.
7. Co-ownershp s dscouraged. 7. Encouraged by aw to provde for
better famy sodarty.
What are the re>&isites o co7o"#ership?
Page 31
Notes on Property
Kathryn P. Dea Serna
a.) Puraty of sub|ects;
b.) Unty of ob|ect (matera dvson)
c.) Recognton of the dea or nteectua shares of the co-owners, whch
determne ther rghts and obgaton.
!o" %o yo& %eter'i#e the share o the co7o"#ers i# the +e#eits a#%
char$es arisi#$ ro' the co7o"#ership?
They sha be proportona to ther respectve nterests and any stpuaton n a
contract to the contrary sha be vod (Artce 485).
Consequenty, n order to determne the share of the co-owners n the benefts and
charges, we must frst determne the respectve nterest n the co-ownershp. Under the aw,
such nterests are presumed equa, uness the contrary s proved (Artce 285, par 2).
What are the )i'itatio#s &po# the ri$ht o a co7o"#er to &se the thi#$
o"#e% i# co''o#?
The thng must be used ony
a) In accordance wth the purpose for whch t s ntended;
b) In such a way as not to n|ure the nterest of the co-ownershp; and
c) In such a way as not to prevent the other co-owners from usng t
accordng to ther rghts (Artce 486).
B( Y a#% J are the co7o"#ers o a ho&se +ei#$ re#te% +y A. May B a)o#e s&e
A or e@ect'e#t? Why?
Yes, because anyone of the co-owners may brng an acton n e|ectment. The reason
for the rue s that an acton nsttuted by one s reay n behaf of a (Artce 487).
What are the actio#s co*ere% +y the ter' e@ect'e#t?
1. Forcbe entry
2. Unawfu detaner
3. Accon pubcana
4. Accon rendvcatora
5. Ouetng of tte
6. Repevn
A( - a#% C are co7o"#ers o a# a$ric&)t&ra) )a#%. A is the a%'i#istrator o
the property. !e "a#ts to co#*ert it to a s&+%i*isio#. What re>&ire'e#t is
#ecessary +eore he ca# %o so a#% +eore he ca# reco*er e3pe#ses?
In order that a can make ateratons, there must be unanmous consent of a the co-
owners, uness there s a |udca order obtaned to the contrary. Unanmous consent may be
gven mpedy. But for the one makng ateratons to recover expenses, express consent
must be gven (0avier vs. 0avier, 6 Phil. =!.).
What is the ri$ht o a co7o"#er as to the e3pe#ses or preser*atio# o the
property o"#e% i# co''o#?
Page 32
Notes on Property
Kathryn P. Dea Serna
He has the rght to compe the others to share n the expenses of preservaton, even
f ncurred wthout pror notfcaton to them, snce the expenses are necessary (Artce 488),
but he notfy f practcabe (Artce 489).
!o" 'ay a co7o"#er e3e'pt hi'se) ro' this o+)i$atio#?
By renouncng so much of hs undvded share as may be equvaent to hs share of
the expenses and taxes. No waver sha be made f t s pre|udca to the co-ownershp
(Artce 488).
What %oes the re#o&#ci#$ re>&ire?
1) If the renouncng s n favor of the credtor, sad credtor must gve hs consent;
2) If the renouncng s n favor of the other co-owners, a novaton woud resut,
necesstatng the consent of sad co-owners and the credtor.
What %oes the rei'+&rse'e#t co*er?
Ony necessary expenses ke those for the preservaton of the property and not for
usefu mprovements, even f the vaue of the property s thereby ncreased, the purpose of
the co-ownershp not beng for proft.
What are the ri$hts o a co7o"#er re$ar%i#$ his i%ea) share?
1) Fu ownershp of hs part and share of fruts or benefts;
2) The rght to aenate, assgn or mortgage hs share;
3) The rght to substtute another n hs en|oyment, except when persona rghts are
nvoved (Artce 493);
4) He rght to exempt hmsef from necessary expenses or taxes by renouncng part of
hs nterest n the co-ownershp. (Art. 488)
B a#% Y are the co7o"#ers o a t"o7storey ho&se. The )o"er portio# is or
re#t( "hi)e the &pper portio# is or %"e))i#$ p&rposes. B &ses o#e roo' &pstairs.
Ca# Y co))ect her K share o the re#ta) ro' B?
No rent can be demanded for X because he s exercsng hs rght of co-ownershp. Y
can use a part of the upper foor aso. Under the aw, each co-owner may use the thng
owned n common provded that:
a) He does so n accordance wth the purpose t s ntended for;
b) He does not n|ure the ntenton of the co-ownershp;
c) He does not prevent other co-owners from usng t accordng to
ther rghts (Artce 486).
B is a co7o"#er o a rea) property "ith Y a#% J. The sai% property "as so)%
to A "ith a ri$ht to rep&rchase. O#)y B e3ercise% the ri$ht to rep&rchase a#%
o+tai#e% a tit)e o*er the property. <i% his act o rep&rchase ter'i#ate the co7
o"#ership?
No, and t dd not gve hm tte to the entre and sub|ect of co-ownershp. The rght
of repurchase may be exercsed by a co-owner wth respect to hs share. When he acqured
the whoe property, he merey acqured the rght to be rembursed for the amount
equvaent to the shares of Y and Z. (Paulmitan vs. CA, /R No 61')=, Nov. &', 1!!&)
B( Y a#% J are co7o"#ers o a parce) o )a#%. B "as a+)e to re$ister the )a#%
&#%er his #a'e. What is the eect o the re$istratio# &#%er his #a'e?
Page 33
Notes on Property
Kathryn P. Dea Serna
He does not acqure excusve ownershp over the property (Ceni#a vs. CA, -+=6.=',
0an. ., 1!!). The regstraton merey created a trust n favor of hs co-owner (Artce 1452).
B( Y a#% J are co7o"#ers o a rea) property( "hich "as 'ort$a$e% to A. B(
re%ee'e% it %&ri#$ the perio% o re%e'ptio# "ith his perso#a) &#%s. <i% B
+eco'e the so)e o"#ers o the property( there+y ter'i#ati#$ the co7o"#ership?
No, because the redempton dd not vest X the soe ownershp over the sad property
but nured to the beneft of a co-owners. Redempton s not a mode of termnatng a co-
ownershp (9ariano vs. CA, /R No. 11'&&, 9a6 &), 1!!.).
B( Y a#% J are co7o"#ers o a parce) o )a#%. B se))s his a)i>&ot part o the
property "itho&t the co#se#t o the other. Is the sa)e *a)i%?
Yes, t s vad because the rght of aenaton s one of hs rghts over the dea share
n the co-ownershp.
I B se))s the "ho)e property "itho&t the co#se#t o the others( is the sa)e
*a)i%?
The sae s vad ony nsofar as hs share s concerned. A person cannot se that
whch he does not own.
!o" %o yo& co#si%er the possessio# +y a co7o"#er o the property s&+@ect
o co7o"#ership?
It s ke that of a trustee and sha not be regarded as adverse to the co-owners, but
In fact benefca to a of them. Acts, whch may be consdered adverse to strangers, may
not be adverse nsofar as co-owners are concerned (Salvador vs. CA, /R No. 1!!1, A,ril ',
1!!').
What are the r&)es i# perpe#%ic&)ar co7o"#ership?
1. Proportonate contrbuton s requred for the preservaton of:
1. The man was;
2. The party was;
3. The roof;
4. The other thngs used n common.
2. Each foor owner must bear the expenses of hs foor;
3. Stars are to be mantaned from story to story, by the users.
What are the acts o a%'i#istratio# or 'a#a$e'e#t?
1. That do not nvove an ateraton;
2. Those that may be renewed form tme to tme;
3. Those whch have transtory effects, that s, do not bnd the co-ownershp for a ong
tme n the future;
4. Those, whch even f caed ateraton, do not affect the substance or nature of the
thng; and
5. Those for the common beneft of a the co-owners and not for ony one or some of
them.
Page 34
Notes on Property
Kathryn P. Dea Serna
What are the )i'itatio#s o# the ri$ht o the i#a#cia) 'a@ority?
1. Athough they can approve resoutons for admnstraton and better en|oyment, st
before a decson s made, there shoud frst be a notce to the mnorty so that they
can be heard;
2. The ma|orty woud be |ustfed n proceedng ony when the urgency of the case and
the dffcuty of meetng wth them render mpractcabe the gvng of such notce;
3. The mnorty may appea to the court aganst the decson of the ma|orty, when for
exampe-
a) There s no rea ma|orty (Artce 492);
b) The resouton s serousy pre|udca to the rghts of an ndvdua co-owner
(Artce 492);
c) When the ma|orty refuse to correct abuse of admnstraton or
maadmnstraton.
What is 'ea#t +y acts o a%'i#istratio# a#% acts o a)teratio#? <isti#$&ish
o#e ro' the other.
Acts of admnstraton are those whch refer to the en|oyment, expotaton and
ateraton of the thng whch do not affect ts substance or form, whe acts of ateraton are
those by vrtue of whch the co-owner, n opposton to the express or tact agreement of a
the co-owners, and n voaton of ther w, changes the thng from the state n whch the
others beeve t shoud reman, or wthdraws t from the use to whch they beeve t s
ntended.
Consequenty, acts of admnstraton are transtory n character, whe acts of
ateraton are more permanent. The former do not affect the substance or form of the thng,
whe the atter reate to the rght of the co-owner, the former requre the consent or
resouton of the ma|orty of the co-owners, whe the atter requre the consent of a.
<isti#$&ish +et"ee# the ri$ht o a co7o"#er to 'a?e repairs or the
preser*atio# o the property o"#e% i# co''o#( to peror' acts o a%'i#istratio#(
a#% to peror' acts o o"#ership or a)teratio#.
1) Wth regard to acts of preservaton: - Repars for preservaton may be made at the
w of one of the co-owners, but he must, f practcabe, frst notfy the other co-
owners of the necessty for such repars (Artce 489);
2) Wth regard to acts of admnstraton: - Acts of admnstraton can be performed ony
wth the concurrence of the ma|orty of the co-owners (Artce 492);
3) Wth regard to acts of ateraton: - Acts of ateraton can be performed ony wth the
concurrence of the other owners. (Art. 491)
!o" %o yo& %eter'i#e the 'a@ority o the co7o"#ers?
To consttute a ma|orty, the co-owners who represent the controng nterest n the
ob|ect of the communty property must approve the resouton (Artce 492, par. 2);
What is the eect i a co7o"#er %esirers to 'a?e a# i'pro*e'e#t o# the
property( +&t he ca##ot sec&re the co#se#t o the 'a@ority?
Shoud there be no ma|orty, or shoud the resouton of the ma|orty be serousy
pre|udca to those nterested n the property owned n common, the court, at the nstance
of an nterested party, sha order such measures, as t may deem proper, ncudng the
appontment of the admnstrator (Artce 492, 2
nd
paragraph).
Page 35
Notes on Property
Kathryn P. Dea Serna
Who has the ri$ht o a%'i#istratio# o the property o"#e% i# co''o#?
The management of the property owned n common es, n the frst pace, n the co-
owners themseves. In ths management, the ma|orty of nterests contro, and ther
decsons are bndng upon the mnorty. In such case, the powers and dutes of such
admnstrators sha be governed by the rues on agency. Shoud there be no ma|orty, or
shoud the resouton of the ma|orty be serousy pre|udca to those nterested n the
property owned n common, the court, at the nstance of the nterested party, may order the
appontment of an admnstrator.
Is the )ease o the co''&#ity property a# act o a%'i#istratio# or act o
o"#ership or a)teratio#?
Lease of persona property s a mere act of admnstraton, and therefore, requres
the resouton of the ma|orty of the co-owners. However, ease of rea property may be an
act of admnstraton or an act of ateraton dependng upon the crcumstances of each
partcuar case:
1) If the ease s recorded n the Regstry of Property, whatever may be the duraton
thereof, t s an act of ownershp, and therefore, requres the unanmous consent of
a the co-owners, snce under the aw, a speca of power of attorney s requred
(Artce 1647);
2) If the ease thereof s more than one year, t s aso act of ownershp, and therefore,
requres the unanmous consent of the co-owners, snce agan, under the aw, a
speca power of attorney s requred (Artce 1878);
3) If the ease, however, s not recorded n the Regstry of Property and the duraton
thereof s ony one year or ess, t s an act of admnstraton and therefore, merey
requres the resouton of the ma|orty of the co-owners.
I# Artic)e /9,( it re>&ires &#a#i'o&s co#se#t or a)teratio#s. May the co#se#t
+e $i*e# i'p)ie%)y?
Yes, but ony for the purpose of makng the ateraton ega. Thus of a co-owner
knows that a house s beng constructed on and owned n common but offers no ob|ecton
thereto, he cannot demand the demoton of the budng. But mped or tact consent s not
enough to make the other co-owners abe for the expenses for the constructon of the
house. To recover a share of the expenses, the express consent of the others woud be
needed.
A( -( a#% C are co7o"#ers o a# a$ric&)t&ra) )a#%. A is the a%'i#istrator o
the property. !e "a#ts to co#*ert it to a s&+%i*isio#. What re>&ire'e#t is
#ecessary +eore he ca# %o so a#% +eore he ca# reco*er e3pe#ses? E3p)ai#.
In order that A can make ateratons, there must be unanmous consent of a the co-
owners, uness there s a |udca order obtaned to the contrary. Unanmous consent may be
gven mpedy. But for one makng ateratons to recover expenses, express consent must
be gven (0avier vs. 0avier, ! Phil. =!.).
What is the #&'+er o co7o"#ers "ho '&st co#se#t?
1) Repars, e|ectment acton - one (Artce 489);
2) Ateraton or acts of ownershp - a (Artce 491);
3) A others, ke usefu mprovements, uxurous embeshments, admnstraton and
better en|oyment - fnanca ma|orty (not numerca) (Artce 492 and 489).
Page 36
Notes on Property
Kathryn P. Dea Serna
Ca# a co7o"#er $o ahea% "ith #ecessary repairs e*e# a$ai#st the
oppositio# o a)) the rest?
Yes, because the neggence of the others shoud not pre|udce hm. He may advance
the funds and recover for the others ater. If he has no money, then he may contract wth
the reparmen and a the other co-owners w be abe proportonatey to the credtors.
The )a" says a co7o"#er '&st i practica+)e irst #otiy his co7o"#ers or
repairs or preser*atio#. S&ppose tho&$h it "as practica+)e to %o so( #o
#otiicatio# "as 'a%e( "o&)% the rest sti)) +e )ia+)e?
Yes, snce the repars were essenta, n fact, even f the rest woud ob|ect, the repars
can go on |ust the same. Though the others may nsst for a esser prce.
What are the eects o i))e$a) a)teratio#?
1) The co-owner responsbe may ose what he has spent;
2) Demoton can be compeed;
3) He woud be abe for osses and damages;
4) But whatever benefts the co-ownershp derves w beong to t;
5) In case a house s constructed on common and, a the co-owners w be entted to a
proportonate share of the rent.
May prescriptio# r&# a$ai#st a co7o"#er?
As a rue, no, as ong as the co-ownershp s expressy or mpedy recognzed.
The excepton s when there s repudaton, provded that the foowng requstes are
present:
1) He must make known to the other that he s repudatng the co-ownershp and
camng compete ownershp of the entre property;
2) Evdence of repudaton and knowedge of others s cear and convncng;
3) There s open, contnuous, adverse possesson for a perod of tme requred by aw;
4) The perod of prescrpton sha start to run ony from such repudaton of co-
ownershp.
Whe# 'ay a co7o"#er %e'a#% partitio# i# so ar as his share o the
property o"#e% i# co''o# is co#cer#e%?
Anytme because he s not obged to reman n the co-ownershp.
<oes the ri$ht to %e'a#% partitio# prescri+e?
No, as ong as the co-ownershp remans.
I# a co7o"#ership( &#%er "hat circ&'sta#ces 'ay a co7o"#er #ot %e'a#%
partitio#?
1) When there s an agreement, but the perod shoud not exceed 10 years;
2) When the testator prohbts t, but the perod sha be mted to 20 years;
3) When t s prohbted by aw (as n a con|uga partnershp or absoute communty of
property except n case of ega separaton);
4) When partton renders the ob|ect unservceabe;
Page 37
Notes on Property
Kathryn P. Dea Serna
5) When the ega nature of the property does not aow the partton of the ob|ect, ke a
party wa (Artces 494 and 495).
A( -( a#% C a$ree% that there sho&)% +e #o partitio# ti)) A $ets 'arrie%. At
the e#% o ,: years( A has #ot 'arrie% yet. <oes the co7o"#ership re'ai#?
No, t shoud be consdered ended aready, otherwse the aw woud be ndrecty
voated.
S&ppose% A $ot 'arrie% at the e#% o 0 years( sho&)% the co7o"#ership
a)rea%y +e co#si%ere% e#%e%?
Yes, snce the resoutory condton has arrved.
What are the ri$hts o cre%itors or assi$#ees or "ith respect to the
partitio# o property he)% i# co''o#?
1) They may take part n the dvson of the thng owned n common;
2) Ob|ect to ts beng effected wthout ther concurrence;
3) But they cannot mpugn any partton aready executed, uness there has been (1)
fraud, or (2) n case t was made notwthstandng a forma opposton presented to
prevent t. (Wthout pre|udce to the rght of the debtor or assgnor to mantan ts
vadty).
What is the r&)e i the o+@ect is esse#tia))y i#%i*isi+)e?
1) Gve the whoe to one co-owner who w ndemnfy the rest;
2) If ths cannot be agreed, there must be a pubc sae and ts proceeds dstrbuted among
them.
What is the )i'itatio# o partitio#? .Protectio# o thir% perso#Hs ri$hts1
The partton of a thng owned n common sha not pre|udce thrd persons, who sha
retan the rghts of mortgage, servtude, or any other rea rghts beongng to them before
the partton was made. Ther persona rghts sha aso reman n force.
Ca# a co7o"#er se)) a partic&)ar portio# o the co7o"#ership +eore
partitio#?
No, he has no rght to se by metes and bounds of the property owned n common. A
co-owner can ony dspose of hs undvded nterest or share.
!o" 'ay co7o"#ership +e ter'i#ate%?
1) |udca partton;
2) Extra-|udca partton;
3) When by prescrpton, one co-owner has acqured the whoe property by adverse
possesson;
4) When a stranger acqures by prescrpton the thng owned n common;
5) Merger n one co-owner;
6) Loss or destructon of the thng;
7) By expropraton.
What are the eects o partitio#? .What '&st +e %o#e ater partitio#?1
1) Mutua accountng for benefts receved (Artce 500);
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Notes on Property
Kathryn P. Dea Serna
2) Mutua rembursement for expenses (Artce 500);
3) Indemnty for damages n case of neggence or fraud (Artce 500);
4) Recproca warranty for (1) defects of tte or evcton and (2) quaty for hdden
defects (Artce 501);
5) Each former co-owner s deemed to have had excusve possesson of that part
aotted to hm for the entre perod durng whch the co-possesson asted (Artce
543);
6) Partton confers upon each, the excusve tte over hs respectve share.
A a#% - "ere co7o"#ers. They partitio#e% their )a#%. Later( C "as a+)e to
pro*e that he rea))y o"#e% the )ot +e)o#$i#$ to -. Sho&)% - a)o#e +ear the )oss?
No, both A and B must bear the oss n that A must gve haf of hs porton to B
because there s a recproca or mutua warranty aganst evcton.
TITLE V. POSSESSION
C!APTER ,
POSSESION AN< T!E LIN<S T!EREOF
<ei#e possessio#.
Possesson s the hodng of a thng or the en|oyment of a rght (Artce 523), ether by
matera occupaton or by the fact of sub|ectng the thng or rght to the acton of our w.
What are the *ie"poi#ts o possessio#?
a. Rght to possesson (jus ,ossidendi) - Ths s a rght or ncdent of ownershp;
b. Rght of possesson (jus ,ossessionis) - Ths s an ndependent rght of tsef,
ndependent of ownershp.
<isti#$&ish +et"ee# jus possessionis a#% jus possidendi.
0us ,ossessionis s the rght of possesson of a thng or rght ndependent of the rght
of ownershp, whe jus ,ossidendi s the rght to the possesson of a thng or rght as a
consequence of ownershp.

What are the %e$rees o possessio#?
1) Mere hodng or havng, wthout any rght whatsoever.
2) Possesson wth a |urdca tte, but not that of an owner.
3) Possesson wth a |ust tte, but not from the true owner.
4) Possesson wth a tte of domnon, that s, wth a |ust tte from the owner.
What are the re>&isites or e)e'e#ts o possessio#?
1) There must be a hodng or contro of a thng or a rght (cor,us);
2) There must be a deberate ntenton to possess (animus ,ossidendi);
3) The possesson must be by vrtue of ones own rght.
What are the c)asses o possessio#?
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Notes on Property
Kathryn P. Dea Serna
1) In ones own name or that of another (Artce 524);
2) In the concept of an owner or n the concept of a hoder (Artce 525);
3) In good fath (*ona fide) or n bad fath (mala fide).
Whe# %oes possessio# i# a#otherHs #a'e arise?
1) Vountary - as when an agent possesses for the prncpa.
2) Necessary - as when a mother possesses for a chd st n the materna womb.
3) Unauthorzed.
What is 'ea#t +y possessor i# $oo% aith a#% possessor i# +a% aith?
He s deemed a possessor n good fath who s not aware that there exsts n hs tte
or mode of acquston any faw whch nvadates t.
He s deemed a possessor n bad fath who possesses n any case contrary to the
foregong.
Mstakes upon a doubtfu or dffcut queston of aw may be the bass of good fath
(Artce 526).
What re>&isites '&st co#c&r i# or%er that o#e 'ay +e c)assiie% as a
possessor i# $oo% aith?
1) The possessor shoud have acqured the thng through some tte or by some mode of
acquston recognzed by aw;
2) There must be a faw or defect n such tte or mode of acquston;
3) The possessor shoud not be aware of such faw or defect.
What are the re>&isites or possessio# i# +a% aith?
1) The possessor shoud have acqured the thng through some tte or by some mode of
acquston requred by aw;
2) There must be a faw or defect n such tte or mode of acquston;
3) The possessor shoud be aware of such faw.
What is the eect o# 'ista?e o# a %o&+t&) or %iic&)t >&estio# o )a"?
Mstake upon a doubtfu or dffcut queston of aw, provded that such gnorance s
not gross and therefore nexcusabe, may be the bass of good fath.
Whe# %oes possessio# i# $oo% aith )ose this character?
1) Possesson n good fath oses ths character from the moment facts exst whch show
that the possessor s not unaware that he possesses the thng mpropery or wrongfuy
(Artce 528);
2) If there are no facts, whch the nterrupton of good fath may be determned, and an
acton s fed to recover possesson, good fath ceases from the moment the possessor
receves the |udca summons to appear at the tra (Artce 528);
3) Even before |udca summons when a etter s receved nformng hm of the ownershp
(:rti# vs. 8uente*ella, &7 Phil, '.7> ?on$ vs. Car,io, /.R. No. '&6=, :cto*er &1, 1!!1).
What are the pres&'ptio#s re$ar%i#$ possessio# &#%er the Ci*i) Co%e?
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Notes on Property
Kathryn P. Dea Serna
1) Presumpton of good fath - good fath s aways presumed, and upon hm who
aeges bad fath on the part of a possessor rests the burden of proof (Artce 527);
2) Contnuty of character of possesson - It s presumed that possesson contnues to be
en|oyed n the same character n whch t was acqured, unt the contrary s proved
(Artce 529);
3) Non-nterrupton of possesson - The possesson of heredtary property s deemed
transmtted to the her wthout nterrupton, and from the moment of the death of the
decedent, n case the nhertance s accepted. On who vady renounces an
nhertance s deemed never to have possessed the same (Artce 530);
4) Presumpton of |ust tte - A possessor n the concept of owner has n hs favor the
ega presumpton that he possesses wth |ust tte, and he cannot be obged to show
or prove t (Artce 541);
5) Non-nterrupton of possesson of property un|usty ost but egay recovered. - One
who recovers possesson un|usty ost, sha be deemed for a purposes whch may
redound to hs beneft, to have en|oyed t wthout nterrupton (Artce 561);
6) Possesson durng ntervenng perod - It s presumed, that the present possessor
who was aso the possessor at a prevous tme, has contnued to be n possesson
durng the ntervenng tme, uness there s proof to the contrary (Artce 1138 |2|);
7) Possesson of movabes wth rea property - The possesson of rea property
presumes that of the movabes theren, so ong as t s not shown or proved that they
shoud be excuded (Artce 542);
8) Excusve possesson of common property - Each one of the partcpants of a thng
possessed n common sha be deemed to have excusvey possessed the part whch
may be aotted to hm upon the dvson thereof, for the entre perod durng whch
the co-possesson asted (Artce 543).
What 'ay +e possesse%?
Ony those thngs and rghts, whch are susceptbe of beng approprated, may be
the ob|ect of possesson (Artce 530).
What properties 'ay #ot +e appropriate%?
1) Property of pubc domnon;
2) Res communes;
3) Easements;
4) Thngs specfcay prohbted by aw.
What is res nullius? Ca# they +e possesse%?
They are abandoned or owneress propertes. They may be possessed, but cannot be
acqured by prescrpton because prescrpton presupposes pror ownershp n another.
However, they may be acqured by occupaton.
C!APTER 4. 7 ACIDISITION OF POSSESSION
!o" is possessio# ac>&ire%?
a. The matera occupaton of a thng or the exercse of a rght (Artce 531)
|quas-possesson|.
Ths aso ncudes:
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Notes on Property
Kathryn P. Dea Serna
a) constitutom ,ossessorium - when a person who
possessed property as an owner, now possesses t n
some other capacty, as that of essee or depostary; and
b) tradition *revi manu - ths exsts when a person who
possessed property not as an owner (ke a essee), now
possess t as an owner.
b. By the fact that t s sub|ect to the acton of our w (Artce 531).
Ths ncudes:

a) tradition lon$a manu - by mere agreement; and
b) traditio sim*olica - by the devery of keys.
c. By constructve possesson or proper acts and ega formates estabshed for
acqurng such rght (Artce 531), such as successon, donaton, executon of
pubc nstruments; or thru the possesson by a sherff by vrtue of a court
order.
What are the esse#tia) re>&ire'e#ts or possessio#?
1) The cor,us, or the thng physcay detaned;
2) The anmus or the ntent to possess, whether evdenced expressy or mpedy.
!o" is possessio# ac>&ire% ro' the *ie"poi#t o "ho possess?
1) Persona;
2) Thru an authorzed person, or agent or ega representatve;
3) Thru an unauthorzed person, but ony f subsequenty ratfed (Artce 532).
What are the esse#tia) re>&isites o the o))o"i#$?
1) For persona acquston:
1. Intent to possess
2. Capacty to possess
3. Ob|ect must be capabe of beng possessed
2) Thru an authorzed person:
1. Intent to possess for prncpa (not for agent)
2. Authorty or capacty to possess (for another)
3. Prncpa has ntent and capacty to possess.
3) Thru an unauthorzed person (as n ne$otiorum $estio):
1. Intent to possess for another (the "prncpa")
2. Capacty of "prncpa" to possess
3. Ratfcaton by "prncpa" (It has retroactve effect)
What is negotiorium gestio?
Artce 2144. Whoever vountary takes charge of the agency or management of the
busness or property of another wthout any power from the atter, s obged to contnue the
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Notes on Property
Kathryn P. Dea Serna
same unt the termnaton of the affar and ts ncdents, or to requre the person concerned
to substtute hm, f the owner s n a poston to do so.
What are the i#sta#ces "here the @&ri%ica) re)atio# %oes #ot arise i#
negotiorum gestio?
1. When the property or busness s not negected or abandoned;
2. If n fact the manager has been tacty authorzed by the owner;
B is the heir o Y "ho %ie% o# <ece'+er ,:( ,994. !e accepte% his
i#herita#ce ro' his ather o# =&#e 4,( ,992. Fro' "hat ti'e sho&)% his
possessio# +e rec?o#e% "ith?
It shoud be computed from the moment of the death of Y, because the possesson of
heredtary property s deemed transmtted to the her wthout nterrupton and from the
moment of death of the decedent, n case the nhertance s accepted (Artce 533).
S&ppose B rep&%iates the i#herita#ce( is he pres&'e% to ha*e +ee# i#
possessio# o the property?
No, because one who vady renounces an nhertance s deemed never to have
possessed the same (Artce 533, ast sentence).
B has +ee# i# possessio# o a property i# +a% aith. Ater his %eath( y( his
%a&$hter co#ti#&e% possessi#$ the property. Wi)) the +a% aith o B +e s&ere%
+y Y?
No, as a rue, because one who succeeds by heredtary tte does not suffer the
consequences of the wrongfu possesson of the decedent, f shown that he s n good fath,
but the effects of possesson n good fath sha not beneft hm except from the date of
death of the decedent (Artce 534). In 2scritor vs. %AC, Novem*er 1&, 1!)7, t was hed that
the reason for Artce 534 s that bad fath s not transmssbe to the hers uness they know
the faw n ones tte.
!o" 'ay 'i#ors a#% i#capacitate% perso#s ac>&ire the possessio# o
thi#$s?
Mnors and ncapactated persons may acqure the possesson of thngs; but they
need the assstance of ther ega representatves n order to exercse the rghts from whch
the possesson arse n ther favor (Artce 535).
A has +ee# i# possessio# i# $oo% aith o a parce) o )a#% or a perio% o /
years. Dpo# %eath( -( his so#( co#ti#&e% possessi#$ the )a#%. !o" 'a#y years
'ore sho&)% - possess the )a#% i# or%er that he 'ay +e the o"#er?
Sx (6) years. Under the aw, possesson of heredtary property s deemed transmtted
to the her wthout nterrupton and upon the moment of death of the decedent f nhertance
s accepted. In the case, t was accepted snce he contnued possessng the and. Ths s so
because Bs possesson s tacked to the possesson of hs father, A. In the computaton of the
tme necessary for prescrpton, the present possessor may compete the perod for
prescrpton by tackng hs possesson to that of hs grantor or predecessor-n-nterest.
What is the pri#cip)e o tac?i#$ o possessio#?
Page 43
Notes on Property
Kathryn P. Dea Serna
It s the prncpe where n computng the tme necessary for prescrpton, the present
possessor may compete the perod necessary for prescrpton by addng hs possesson to
that of hs grantor or predecessor n nterest (Artce 1138, par. 1)
May possessio# ac>&ire% thro&$h orce( *io)e#ce or to)era#ce ripe# i#to
o"#ership?
No. Artce 536 provdes that n no case may possesson be acqured through force or
ntmdaton as ong as there s a possessor who ob|ects thereto. He who beeves that he
has an acton or a rght to deprve another of the hodng of a thng, must nvoke the ad of
the competent court, f the hoder shoud refuse to dever the thng.
Lkewse, Artce 537 provdes that acts merey toerated, and those executed
candestney and wthout the knowedge of the possessor of a thng, or by voence, do not
affect possesson.
What are the re'e%ies "hich are a*ai)a+)e to a possessor i# or%er to
protect his possessio#?
1. Wth regard to mmovabe property:
1) Acton for forcbe entry and unawfu detaner - acton to recover
matera possesson of the property, and whch must be nsttuted
wth one year from the tme the cause of acton accrues n the MTC.
2) Accion ,u*liciana - the penary acton to recover the possesson of
the property, and whch must be nsttuted wth 10 years after the
possesson has been ost n the proper RTC
3) Accion reinvidicatoria - An acton to recover possesson of the
property based on ownershp, and must be nsttuted wth 10 or 30
years, as the case may be, after the owner has been deprved of hs
property n the proper RTC.
2. Wth regard to movabe property:
Acton for repevn whch s an acton for the manua devery of persona property.
What is the $e#era) r&)e re$ar%i#$ possessio# as a act .Artic)e 02A1?
Possesson as a fact cannot be recognzed at the same tme n two dfferent
personates.
Excepton:
a) co-possessors;
b) Possesson n dfferent concepts or dfferent degrees.
What are the r&)es i# case o co#)ict o possessio#?
Possesson as a fact cannot be recognzed at the same tme n two dfferent
personates except n the case of co-possesson. Shoud a queston arse regardng the fact
of possesson:
1. Present possessor s preferred;
2. If both are n possesson, the one onger n possesson sha be preferred;
3. If possesson started at the same tme, the one wth a tte s preferred;
Page 44
Notes on Property
Kathryn P. Dea Serna
4. If both have a tte, the court w determne (Artce 538).
C!APTER 2. EFFECTS OF POSSESSION
What are the three $e#era) ri$hts o a possessor?
a. The rght to be respected n hs possesson;
b. The protecton n sad rght or restoraton to sad possesson thru ega means;
c. The wrt of premnary mandatory n|uncton.
Whe# 'ay possessio# ser*e as a tit)e or ac>&iri#$ %o'i#io# o*er the
thi#$?
Ony possesson acqured and en|oyed n the concept of owner can serve as a tte for
acqurng domnon (Artce 540).
O&t)i#e o the eects o possessio# i# $oo% aith a#% +a% aithE
A. FRUITS RECEIVED:
1. Possessor n good fath s entted to fruts receved whe hs possesson s st
n good fath (Artce 544);
7
2. Possessor n bad fath sha remburse the fruts receved or whch the
egtmate possessor coud have receved, sub|ect to Artce 443. (Artce 549).
B. PENDING FRUITS:
1. Possessor n good fath and egtmate possessor sha be abe for expenses
of cutvaton and sha share n net harvest n proporton to the tme of ther
possesson (Artce 545, par. 1);
8
2. Possessor n bad fath sha have not any rght.
C. CHARGES:
Possessor, whether n good fath or bad fath, and egtmate possessor sha share
charges n proporton to the tme of ther possesson (Artce 545, par. 1).
7
Artce 544. A possessor n good fath s entted to the fruts receved before the
possesson s egay nterrupted.
Natura and ndustra fruts are consdered receved from the tme they are gathered
or severed.
Cv fruts are deemed to accrue day and beong to the possessor n good fath n
that proporton.
8
Artce 545. If at the tme the good fath ceases, there shoud be any natura or
ndustra fruts, the possessor sha have a rght to a part of the expenses of cutvaton and
to a part of the net harvest, both n proporton to the tme of the possesson.
The charges sha be dvded on the same bass by the two possessors.
The owner of the thng may, shoud he so desre, gve the possessor n good fath the
rght to fnsh the cutvaton and gatherng of the growng fruts, as an ndemnty for hs part
of the expenses of cutvaton and the net proceeds; the possessor n good fath who for any
reason whatsoever shoud effuse to accept ths concesson, sha ose the rght to be
ndemnfed n any other manner.
Page 45
Notes on Property
Kathryn P. Dea Serna
D. EXPENSES:
1. Necessary expenses -
a. Rghts of a possessor n good fath (Artce 546, par. 1):
9
(a) Rght of rembursement;
(b) Rght of retenton.
b. Rght of possessor n bad fath: Rght of rembursed ony.
2. Usefu expenses -
a. Rghts of possessor n good fath:
(1) Rght of rembursement;
(2) Rght of retenton (Artce 546, par. 2);
(3) Lmted rght of remova (Artce 547).
10
b. Rght of possessor n bad fath: None.
3. Ornamenta expenses -
a. Rght of possessor n good fath: Lmted rght of remova (Artce
548);
11
b. Rght of possessor n bad fath: Lmted rght of remova (Artce 549);
12
E. DETERIORATION OR LOSS:
1. Possessor n good fath - No abty, uness due to hs faut or neggence
after he had become a possessor n bad fath (Artce 552);
2. Possessor n bad fath - Aways abe, whether due to hs faut or neggence
or due to fortutous event (Artce 552);
9
Necessary expenses sha be refunded to every possessor; but ony the possessor n
good fath may retan the thng unt he has been rembursed therefor.
Usefu expenses sha be refunded ony to the possessor n good fath wth the same
rght of retenton, the person who has defeated hm n the possesson havng the opton of
refundng the amount of the expenses or of payng the ncrease n vaue whch the thng
may have acqured by reason thereof.
10
Artce 547. If the usefu mprovements can be removed wthout damage to the
prncpa thng, the possessor n good fath may remove them, uness the person who
recovers the possesson exercses the opton under paragraph 2 of the precedng artce.
11
Artce 548. Expenses for purer uxury or mere peasure sha not be refunded to the
possessor n good fath; but he may remove the ornaments wth whch he has embeshed
the prncpa thng f t suffers no n|ury thereby, and f hs successor n the possesson does
not prefer to refund the amount expended.
12
Artce 549. The possessor n bad fath sha remburse the fruts receved and those
whch the egtmate possessor coud have receve, and sha have a rght ony to the
expenses mentoned n paragraph 1 of Artce 546 and n Artce 443. The expenses ncurred
n mprovements for pure uxury or mere peasure sha not be refunded to the possessor n
bad fath; but he may remove the ob|ects for whch such expenses have been ncurred,
provded that the thng suffers no n|ury thereby, and that the awfu possessor does not
prefer to retan them by payng the vaue they may have at the tme he enters nto
possesson
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Notes on Property
Kathryn P. Dea Serna
I the possessor is o&ste% ro' his possessio# +y the tr&e o"#er o the
property( "hat are the ri$hts o the t"o parties "ith respect to the r&its recei*e%
or har*este% +y the possessor?
The rghts of the two partes sha depend upon the character of the possesson of the
possessor.
1. If the possessor was n good fath, he s entted to a of the fruts receved before hs
possesson was egay nterrupted. Natura and ndustra fruts are consdered
receved from the tme they are gathered or severed, whe cv fruts are deemed to
accrue day and beong to the possessor n good fath n that proporton (Artce 544).
The true owner of the property on the other hand, sha be entted to the fruts
receved by the possessor after the atters possesson was egay nterrupted by
the servce of |udca summons.
2. If the possessor was n bad fath, he sha remburse not ony the fruts whch he had
receved, but aso those whch the true owner coud have receved wth the exercse
of due dgence (Artce 549, 1
st
sentence), after deductng expenses whch he mght
have ncurred n ther producton, gatherng and harvestng (Artces 549, 443).
I# the pro+)e' a+o*e( "hat are the ri$hts o the t"o parties "ith respect to
pe#%i#$ #at&ra) a#% i#%&stria) r&its?
The rghts of the two partes sha depend upon the character of the possesson of the
possessor.
1. If the possessor was n good fath, then both partes sha share n the expenses of
cutvaton as we as n the net harvest n proporton to the tme of ther respectve
possesson. The owner, shoud he so desre, may gve the possessor n good fath the
rght to fnsh the cutvaton and gatherng of the growng fruts as an ndemnty for
hs part of the expenses of cutvaton and the net harvest. If the possessor n good
fath for any reason whatsoever shoud refuse to accept ths concesson, he sha ose
hs rght to be ndemnfed n any other manner (Artce 545).
2. If the possessor was n bad fath, the true owner sha be entted to a the pendng
fruts n accordance wth the prncpe of accesson (Artce 449), as we as damages
(Artce 451).
D#%er the pro+)e's a+o*e( "hat are the ri$hts o the t"o parties "ith
respect to ta3es o# the property a#% other char$es?
Taxes and other charges sha be dvded between the possessor and the owner n
proporton to the tme of ther respectve possesson, rrespectve of the good fath or bad
fath of the former (Artce 455, par. 2)
Who sha)) +ear the cost o )iti$atio# o*er the property?
The costs of tgaton over the property sha be borne by every possessor (Artce
550).
To "ho' sha)) i'pro*e'e#ts ca&se% +y #at&re or ti'e i#&re?
Improvements caused by nature or tme sha aways nure to the beneft of the
person who has succeeded n recoverng possesson (Artce 551).
Page 47
Notes on Property
Kathryn P. Dea Serna
Who sha)) +e )ia+)e or )oss or %eterioratio# o the thi#$ possesse%?
A possessor n good fath sha not be abe for the deteroraton or oss of the thng
possessed, except n cases n whch t s proved that he has acted wth frauduent ntent or
neggence, after the |udca summons.
A possessor n bad fath sha be abe for deteroraton or oss n every case, even f
caused by a fortutous event (Artce 552).
What is the r&)e as to i'pro*e'e#ts "hich ha*e cease% to e3ist?
One who recovers possesson sha not be obged to pay for mprovements whch
have ceased to exst at the tme he takes possesson of the thng (Artce 553).
What is 'ea#t +y .,1 #ecessary e3pe#ses( .41 &se&) e3pe#ses( a#% .21
or#a'e#ta) e3pe#ses or e3pe#ses or p&re )&3&ry?
1. Necessary expenses are those whch are for the preservaton of the thng.
2. Usefu expenses are those whch are ncurred for the greater productvty
or utty of the thng.
3. Expenses for pure uxury are those whch are ncurred for the convenence
and en|oyment of the possessor, but whch do not affect the exstence,
productvty or utty of the thng tsef.
D#%er the pro+)e's a+o*e( "hat are the ri$hts o the t"o parties "ith
respect to .,1 #ecessary e3pe#ses? .41 &se&) e3pe#ses? .21 e3pe#ses or )&3&ry?
The rghts of the two partes wth respect to such expenses sha depend upon the
character of the possesson of the possessor.
a) Necessary expenses -
(1) If the possessor was n good fath, he sha have the rght to demand from the
owner rembursement of a necessary expenses. In addton, he sha aso have
the rght to retan the thng unt he has been rembursed therfore (Artce 546,
par. 1).
(2) If the possessor was n bad fath, he sha have ony the rght to demand from the
owner rembursement of a necessary expenses wthout any rght of retenton
(Artce 546, par.1)
b) Usefu expenses -
(1) If the possessor was n good fath, the owner or egtmate possessor sha have the
opton of rembursng to such possessor the amount of a usefu expenses or of
payng the ncrease n vaue whch the thng may have acqured by reason thereof. If
the owner chooses the frst opton, the possessor may retan the thng unt he has
been rembursed therefore (Artce 546, par. 2). If the owner does not ava hmsef of
ether opton, the ntatve passes to the possessor, n whch case such possessor
sha have the opton of demandng from the owner rembursement of a usefu
expenses wth the accessory rght of retenton (Artce 546, par.2) or of removng the
usefu mprovements, provded that such remova can be made wthout damage to
the prncpa thng (Artce 547).
Page 48
Notes on Property
Kathryn P. Dea Serna
(2) If the possessor was n bad fath, he sha not have any rght whatsoever.
Consequenty, the owner sha be entted to a of the usefu mprovements wthout
obgaton on hs part.
c) Expenses for pure uxury -
As far as ornamenta expenses or expenses for pure uxury are concerned, the
possessor s entted to ony rght - a mted rght to remove the ornaments wth whch he
has embeshed the prncpa thng.
(1) If such possessor was n good fath, he may remove the ornaments, provded that
the prncpa thng suffers no n|ury thereby, and that the owner or egtmate
possessor does not prefer to retan such ornaments by rembursng to the
possessor the amount expended (Artce 548).
(2) If the possessor was n bad fath, he may remove the ornaments, provded that
the prncpa thng suffers no n|ury thereby, and that the owner does not prefer
to retan such ornaments by rembursng to the possessor the vaue they may
have at the tme he enters nto possesson (Artce 549)
Whe# is possessio# o 'o*a+)es a#% i''o*a+)es %ee'e% )ost or #ot )ost?
The possesson of movabe s not deemed ost so ong as they reman under the
contro of the possessor, even though for the tme beng he may not know ther whereabouts
(Artce 556).
The possesson of mmovabes and of rea rghts s not deemed ost, or transferred for
purposes of prescrpton to the pre|udce of thrd persons, except n accordance wth the
provsons of the Mortgage Law and the Land Regstraton Laws (Artce 557).
Ca# the tr&e o"#er reco*er a 'o*a+)e thi#$ ro' a possessor "ho is i#
possessio# o s&ch thi#$ i# a co#cept o a# o"#er?
It depends:
1. If the possessor acqured the thng n bad fath, the true owner can recover
wthout any obgaton whatsoever.
2. If he acqured t n good fath, the true owner cannot recover t because
possesson of a movabe acqured n good fath s equvaent to a tte (Artce 559,
par. 1). Ths s nevertheess sub|ect to the foowng exceptons:
a. If the true owner has ost the movabe
b. If such owner has been unawfuy deprved thereof.
In such cases, the true owner can recover the movabe from anyone wthout any
obgatons whatsoever, except:
The possessor has acqured the movabe n good fath at a pubc sae, n whch case the
owner cannot recover t wthout rembursng the prce pad therefor (Artce 559, par. 1).
What are the %iere#t i#sta#ces "here the o"#er o a 'o*a+)e "ho has
)ost it or "ho has +ee# &#%&)y %epri*e% thereo ca# #o )o#$er reco*er it ro' the
possessor?
Page 49
Notes on Property
Kathryn P. Dea Serna
1. If recovery s no onger possbe because of prescrpton (Artce 1132);
2. If the possessor had acqured the thng from a person whose authorty to se the
owner s by hs conduct precuded from denyng (Artce 1505, par. 1);
3. If the possessor had acqured the thng from a merchants store or n fars or
markets, n accordance wth the Code of Commerce and speca aws. (Artce
1505, No. 3);
4. If the thng s a negotabe nstrument or a negotabe document of tte and the
possessor s a purchaser n good fath and for vaue. (Secton 57, Act No. 2031,
Artce 1518);
5. If the possessor s now the owner of the thng n accordance wth the prncpe of
fnder keepers recognzed n Artce 719.
What are the r&)es as to reco*ery or #o#7reco*ery?
a. Owner may recover wthout rembursement:
1. From possessor n bad fath;
2. From possessor n good fath f owner had ost the property or has been
unawfuy deprved of t.
b. Owner may recover but shoud remburse:
1. If possessor acqured the ob|ect n good fath at a pubc sae or aucton.
c. Owner cannot recover, even f he offers to remburse (whether or not the
owner had ost or been unawfuy deprved):
1. If possessor had acqured t n good fath by purchase from a merchants
store, or n fars, or markets;
2. If owner s by hs conduct precuded from denyng the seers authorty to
se (estoppe);
3. If possessor had obtaned the goods because he was an nnocent
purchaser for vaue and hoder of a negotabe document of tte to the
goods.
B o"#s a %ia'o#% ri#$ "hich "as sto)e# +y her 'ai% "ho so)% it to Y( a
rie#% o B. B sa" the ri#$ i# YHs possessio#. Ca# he reco*er it?
Yes, under the aw, one who has ost any movabe or has been unawfuy deprved
thereof, may recover t from the person n possesson of the same (Artce 559).
Withi# "hat perio% sho&)% B i)e the actio# to reco*er it?
Eght (8) years. Under Artce 1140, actons to recover movabes sha prescrbe eght
years from the tme the possesson thereof was ost.
S&ppose Y ac>&ire% it ro' a p&+)ic sa)e or a 'ercha#tHs store( ca# B
reco*er it?
Yes, provded that he compes wth the requste that he shoud remburse the prce
pad by the possessor. Under the aw, f the possessor of a movabe ost or of whch the
owner has been unawfuy deprved, has acqured t n good fath at a pubc sae, the owner
cannot obtan ts return wthout rembursng the prce pad therefor (Artce 559).
Page 50
Notes on Property
Kathryn P. Dea Serna
The same s true f the ob|ect was acqured from a merchants store or n fars or
markets (Artce 1505 |3|).
What is 'ea#t +y the phrase G&#)a"&))y %epri*e%F &#%er Artic)e 009 o the
Ci*i) Co%e?
The term or phrase "unawfuy deprved" extends to a cases where there has been
no vad transmsson of ownershp, ncudng a depostary or a essee who has sod the same
(-edesma vs. Ca, /.R. No. )6'1, Se,tem*er 1, 1!!&).
I a perso# iss&es a chec? i# pay'e#t o a# o+)i$atio# a#% the chec?
+o&#ces( is the other party co#si%ere% &#)a"&))y %epri*e% s&ch that he ca#
reco*er the o+@ect he %e)i*ere%?
He s not consdered unawfuy deprved wthn the meanng of the aw. In -edesma
vs. CA, /.R. No. )6'1, Se,tem*er 1, 1!!&, t was hed that there was a perfected
uncondtona contract of sae between the seer and the buyer. The former vountary
caused the transfer. Tte thereto was acqured. The subsequent dshonor of the check
merey amounted to a faure of consderaton whch does not render the contract of sae
vod, but merey aows the pre|udced party to sue for specfc performance or rescsson of
the contract and to prosecute the mpostor for estafa under Artce 315 of the Revsed Pena
Code.
What are the r&)es as to possessio# o a#i'a)s .Artic)e 05:1?
1. Possesson of wd anmas s ost when they are under anothers contro or under
no ones contro;
2. Possesson of domestcated or tamed anmas:
a. The possessor does no ose possesson of them, as ong as habtuay they
return to the possessors premses.
b. Possesson of them s ost f the aforementoned habt has ceased. But
nsofar as ownershp s concerned, Artce 716 provdes that the owner
thereof may cam them wthn 20 days to be counted from ther
occupaton by another person.
What are the pres&'ptio#s i# a*or o the possessor &#%er the chapter?
1. Artce 541 - Possessor has |ust tte
2. Artce 542 - Possesson of movabes found n an mmovabe
3. Artce 543 - Excusve possesson by a prevous co-owner
4. Artce 554 - Possesson durng the ntervenng perod
5. Artce 561 - Lawfu recovery of possesson that has been un|usty ost
Whe# 'ay possessio# +e )ost?
1. By the abandonment of the thng;
2. By an assgnment made to another ether by onerous or gratutous tte;
3. By the destructon or tota oss of the thng, or because t goes out of commerce;
4. By the possesson of another, sub|ect to the provsons of Artce 537, f the new
possesson has asted onger than one year. But the rea rght of possesson s not
ost t after the apse of ten years.
What is the prescriptio# perio% o 'o*a+)es?
Page 51
Notes on Property
Kathryn P. Dea Serna
1. Acton to recover fact of possesson - 1 year (Artce 555)
2. Acton to recover movabes - 8 years (Artce 1140)
3. Ownershp of movabes - 4 years f n good fath, 8 years f n bad fath (Artce 1132)
4. Movabe possessed through crme - none (can never prescrbe (Artce 1133)
TITLE VI. DSDFRDCT
C!APTER ,
DSDFRDCT IN 8ENERAL
What is &s&r&ct?
Usufruct gves a rght to en|oy the property of another wth the obgaton of
preservng ts form and substance, uness the tte consttutng t or the aw otherwse
provdes (Artce 562).
The combnaton of jus utendi and fruendi s caed usufruct.
What are the characteristics or e)e'e#ts o &s&r&ct?
1) Essenta characterstcs:
a. It s a rea rght, whether regstered n the Regstry of Property or not;
b. It s of a temporary nature or duraton;
c. Its purpose s to en|oy the benefts and derve a advantages from the ob|ect
as a consequence of norma use or expotaton.
2) Natura characterstc:
The obgaton to preserve ts form and substance.
What 'ay +e the o+@ects o &s&r&ct?
a. It may be rea or persona property;
b. It may be stere or productve;
c. It may be created over a rght.
What are the ri$hts o actio# a*ai)a+)e to a &s&r&ct&ary?
a) The acton to protect the usufruct tsef;
b) The acton to protect the exercse of the usufruct.
!o" 'ay a &s&r&ct +e co#stit&te%?
Usufruct s consttuted:
a) By aw (ega);
b) By the w of prvate persons expressed n acts inter vivos or n a ast w and
testament (vountary); and
c) By prescrpton (mxed).
Why is re$istratio# o &s&r&ct o*er rea) property #ecessary?
Page 52
Notes on Property
Kathryn P. Dea Serna
A usufruct over rea property, beng a rea rght, must be duy regstered n order to
bnd nnocent thrd partes (Artce 709).
!o" is &s&r&ct c)assiie% .Artic)e 05/1?
a) Accordng to quantty or extent of fruts or ob|ect:
(1) As to fruts - tota or parta;
(2) As to ob|ects - unversa, f over the entre patrmony (Artce 598); or snguar,
f ony ndvdua thngs are ncuded.
b) As to the number of persons en|oyng the rght:
(1) Smpe - f ony one usufructuary en|oys;
(2) Mutpe - f severa usufructuares en|oy:
a. Smutaneous;
b. Successve.
c) As to the quaty or knd of ob|ects nvoved:
(1) Usufruct over rghts;
(2) Usufruct over thngs:
a. Norma usufruct - ths nvoves non-consumabe thngs where the form and
substance are preserved;
b. Abnorma usufruct - ths nvoves consumabe property (aso caed 4uasi+
usufruct).
d) Accordng to terms or condtons:
(1) Pure usufruct - no term or condton;
(2) Wth a term or perod:
a. 23 die - from a certan day;
b. %n diem - up to a certan day; and
c. 23 die in diem - from a certan day up to a certan day
(3) Wth a condton
What are the co#%itio#s re>&ire% i the &s&r&ct is create% +y %o#atio# or
+y testa'e#tary s&ccessio#?
(1) If the usufruct s created by donaton, a the donees must be ave, or at east aready
conceved, at the tme of the perfecton of the donaton (Artce 756);
(2) In the case of testamentary successon, there must ony be two successve
usufructuares; and both must be ave or at east conceved at the tme of the
testators death (Artces 863 and 869).
What are the r&)es $o*er#i#$ a &s&r&ct?
1. Frst, the agreement of the partes or the tte gvng the usufruct;
2. Second, n case of defcency, appy the Cv Code (Artce 565);
Page 53
Notes on Property
Kathryn P. Dea Serna
3. In case of confct between the rghts granted a usufructuary by vrtue of a w,
and coda provsons, the former, uness repugnant to the mandatory provsons of
the Cv Code, shoud preva.
C!APTER 4
RI8!TS OF T!E DSDFRDCTDARY
Who sha)) +e e#tit)e% to a)) the r&its o the property i# &s&r&ct?
a) The usufructuary sha be entted to a the fruts, natura, ndustra and cv
fruts of the property n usufruct;
b) Wth respect to hdden treasure whch may be found on the and or tenement,
he sha be consdered a stranger (Artce 576)
What are the r&)es "ith re$ar% to pe#%i#$ #at&ra) or i#%&stria) r&its?
a) Natura or ndustra fruts growng at the tme the usufruct begns, beong to the
usufructuary;
b) Those growng at the tme the usufruct termnates, beong to the owner (Artce
567, pars. 1 & 2)
c) In both cases, the usufructuary, at the begnnng of the usufruct, has no
obgaton to refund to the owner any expenses ncurred; but the owner sha be
obged to remburse at the termnaton of the usufruct, from the proceeds of the
growng fruts, the ordnary expenses of cutvaton, for seed, and other smar
expenses ncurred by the usufructuary (Artce 567, par. 3);
d) These provsons sha not pre|udce the rghts of thrd persons, acqured ether at
the begnnng or at the termnaton of the usufruct (Artce 567, par. 4);
e) There can be no pendng cv fruts or rents for they accrue day (Artce 569).
What is the r&)e i the &s&r&ct&ary has )ease% the )a#%s or te#e'e#ts
$i*e# i# &s&r&ct?
If the usufructuary has eased the ands or tenements gven n usufruct, and the
usufruct shoud expre before the termnaton of the ease, hs or her hers and successors
sha receve ony the proportonate share of the rents that must be pad by the essees
(Artce 568); |meanng the remanng perod of the ease not anymore covered by the
usufruct beongs to the naked owner|.
What are the r&)es "ith re$ar% to ci*i) r&its?
1. Cv fruts are deemed to accrue day;
2. Cv fruts beong to the usufructuary n proporton to the tme the usufruct may
ast (Artce 569);
3. Whenever the usufruct s consttuted on the rght to receve rent or perodca
penson, whether n money or n fruts, or n the nterest on bonds or securtes
payabe to bearer, each payment due sha be consdered as the proceeds of
fruts of such rght (Artce 570, par. 1); and they sha be dstrbuted as cv fruts,
and sha be apped n proporton to the tme the usufruct may ast; (Artces 570,
par. 3 and 569);
4. Whenever usufruct conssts n the en|oyment of benefts accrung from a
partcpaton n any ndustra or commerca enterprse, the date of the
dstrbuton of whch s not fxed, such benefts sha have the same character
(Artce 570, par. 2); and they sha be dstrbuted as cv fruts, and sha be
Page 54
Notes on Property
Kathryn P. Dea Serna
apped n proporton to the tme the usufruct may ast; (Artces 570, par. 3 and
569);
Who is e#tit)e% to the e#@oy'e#t o the i#creases i# the thi#$ he)% i#
&s&r&ct?
The usufructuary sha have the rght to en|oy any ncrease whch the thng n
usufruct may acqure through:
. Accesson;
. Servtudes estabshed n ts favor; and
. A the benefts nherent n the property (Artce 571).
What are the ri$hts o the &s&r&ct&ary to the thi#$ he)% i# &s&r&ct a#% to
the &s&r&ct&ary ri$ht .Artic)e 0641?
. He may personay en|oy the thng;
. He may ease the thng to another;
. He may aenate hs rght of usufruct, even by a gratutous tte;
Provded:
A the contracts he may enter nto as such usufructuary sha termnate upon the
expraton of the usufruct;
Except:
Leases of rura ands, whch sha be consdered as subsstng durng the agrcutura
year.
What &s&r&ct&ary ri$hts that ca##ot +e a)ie#ate%?
. Those that are purey persona usufructs;
ii. Those whch are sub|ect to caucion juratoria under Artce 587;
. Lega usufructs such as the usufruct whch parents have over the
property of ther unemancpated chdren, because of ther nature.
What is a+#or'a) &s&r&ct?
It s the usufruct over thngs whch wthout beng consumed, graduay deterorate
through wear and tear (Artce 573), or those whch cannot be used wthout beng consumed
(Artce 574). The usufructuary does not have the obgaton of preservng the form and
substance of the property whch s the ob|ect of the usufruct.
A %e)i*ere% to - a +ra#% #e" Toyota Coro))a or the )atterHs &se or a perio%
o i*e 'o#ths. Is - )ia+)e o the carHs or%i#ary "ear a#% tear?
No, because whenever the usufruct ncudes thngs whch, wthout beng consumed,
generay deterorate through wear and tear:
(1) The usufructuary sha have the rght to make use of the thng n accordance wth the
purpose for whch they are ntended;
(2) He sha not be obged to return them at the termnaton of the usufruct except n
ther condton at that tme;
Page 55
Notes on Property
Kathryn P. Dea Serna
(3) But he sha be obged to ndemnfy the owner for any deteroraton they may have
suffered by reason of hs fraud or neggence (Artce 573).
B $a*e Y the &s&r&ct o ,:: ca*a#s o rice or the &se o his a'i)y. State
the o+)i$atio# o Y &po# the ter'i#atio# o the &s&r&ct.
Whenever the usufruct ncudes thngs whch cannot be used wthout beng
consumed:
(1) The usufructuary sha have the rght to make use of them under the
obgaton of payng ther apprased vaue at the termnaton of the usufruct, f
they were apprased when devered;
(2) In case they were not apprased, he sha have the rght to return the same
quantty and quaty, or pay ther current prce at the tme the usufruct ceases
(Artce 574).
May 'o#ey +e the o+@ect o a &s&r&ct?
Yes, Artce 574 appes.
What are the ?i#%s o specia) &s&r&cts?
iv. Of frut bearng trees and shrubs (Artuce 575);
13
v. Of perodc penson, ncome, dvdends (Artce 570);
14
vi. Of woodand (Artce 577);
15
vii. Of rght of acton to recover rea property, rea rght or movabe
property (Artce 578);
16
13
Artce 575. The usufructuary of frut - bearng trees and shrubs may make use of
the dead trunks, and even of those cut off or uprooted by accdent, under the obgaton to
repace them wth new pants.
14
Artce 570. Whenever a usufruct s consttuted on the rght to receve a rent or
perodc penson, whether n money or n fruts, or n the nterest on bonds or securtes
payabe to bearer, each payment due sha be consdered as the proceeds or fruts of such
rght.
Whenever t conssts n the en|oyment of benefts accrung from a partcpaton n any
ndustra or commerca enterprse, the date of the dstrbuton of whch s not fxed, such
benefts sha have the same character.
In ether case they sha be dstrbuted as cv fruts, and sha be apped n the
manner prescrbed n the precedng artce.
15
Artce 577. The usufructuary of woodand may en|oy a the benefts t may
produce accordng to ts nature.
If the woodand s a copse or conssts of tmber for budng, the usufructuary may do
such ordnary cuttng or feng as the owner was n the habt of dong. And n defaut of ths,
he may do so n accordance wth the customs of the pace, as to the manner, amount and
season.
In any case the feng or cuttng of trees sha be made n such manner as not to
pre|udce the preservaton of the and.
In nurseres, the usufructuary may make the necessary thnnngs n order that the
remanng trees may propery grow.
Wth the excepton of the provsons of the precedng paragraphs, the usufructuary
cannot cut down trees uness t be to restore or mprove some of the thngs n usufruct, and
n such case he sha frst nform the owner of the necessty for the work.
16
Artce 578. The usufructuary of an acton to recover rea property or rea a rea
rght, or movabe property, has the rght to brng the acton and to obge the owner thereof
Page 56
Notes on Property
Kathryn P. Dea Serna
viii. Of part of property owned n common (Artce 582);
17
ix. Of the entre patrmony of a person (Artce 598);
18
x. On mortgaged mmovabe (Artce 600);
19
xi. On a fock or herd of vestock (Artce 591).
20
What are the ri$hts o a &s&r&ct&ary o r&it +eari#$ trees a#% shr&+s?
a. The usufructuary can make use of the dead trunks, and even those cut off
or uprooted by accdent;
b. But he has the obgaton to repace them wth new pants (Artce 575);
c. If n consequence of a caamty or extraordnary event, the trees or shrubs
sha have dsappeared n such consderabe number that t woud not be
possbe to repace them, the usufructuary may eave the dead, faen or
uprooted trunks at the dsposa of the owner, and demand that the atter
remove them and cear the and (Artce 576).
I the &s&r&ct&ary i#c&rs #ecessary( &se&) a#% or#a'e#ta) e3pe#ses( "hat
are his ri$hts?
(1) The usufructuary sha have the rght to demand rembursement from the owner
of a necessary expenses whch he mght have ncurred for the preservaton of
the property (Artce 546);
(2) Ths rght, however, s not avaabe to hm wth regard to usefu and ornamenta
expenses, but he may remove the mprovements provded that t s possbe to do
so wthout damage to the property (Artce 579);
(3) In addton, he may set off such mprovements aganst any damage to the same
(Artce 580).
to gve hm the authorty for ths purpose and to furnsh hm whatever proof he may have. If
n consequence of the enforcement of the acton he acqures the thng camed, the usufruct
sha be mted to the fruts, the domnon remanng wth the owner.
17
Artce 582. The usufructuary of a part of a thng hed n common sha exercse a
the rghts pertanng to the owner thereof wth respect to the admnstraton and the
coecton of fruts or nterest. Shoud the co-ownershp cease by reason of the dvson of the
thng hed n common, the usufructuary of the part aotted to the co-owner sha beong to
the usufructuary.
18
Artce 598. If the usufruct be consttuted on the whoe patrmony, and f at the
same tme of ts consttuton the owner has debts, the provsons of Artce 758 and 759
reatng to donatons sha be apped, both wth respect to the mantenance of the usufruct
and to the obgaton of the usufructuary to pay such debts.
19
Artce 600. The usufructuary of a mortgaged mmovabe sha be obged to pay the
debt for the securty of whch the mortgage was consttuted.
Shoud the mmovabe be attached or sod |udcay for the payment of the debt, the
owner sha be abe to the usufructuary for whatever the atter may ose by reason thereof.
20
Artce 591. If the usufruct be consttuted on a fock or herd of vestock, the
usufructuary sha be obged to repace wth the young thereof the anmas that de each
year from natura causes, or are ost due to the rapacty of beasts of prey.
If the anmas on whch the usufruct s consttuted shoud a persh, wthout the faut
of the usufructuary, on account of some contagous dsease or any other uncommon event,
the usufructuary sha fuf hs obgaton by deverng to the owner the remans whch may
have been saved from the msfortune.
Shoud the herd or fock persh n part, aso by accdent and wthout the faut of the
usufructuary, the usufruct sha contnue on the part saved.
Shoud the usufruct be on stere anmas, t sha be consdered, wth respect to ts
effect, as though consttuted on fungbe thngs.
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Notes on Property
Kathryn P. Dea Serna
C!APTER 2. O-LI8ATIONS OF T!E DSDFRDCTDARY
What are the o+)i$atio#s o the &s&r&ct&ary +eore e#teri#$ &po# the
e#@oy'e#t o the property?
(1) To make, after notce to the owner or hs egtmate representatve, an nventory
of a the property, whch sha contan an apprasa of the movabes and a
descrpton of the condton of the mmovabes;
(2) To gve securty, bndng hmsef to fuf the obgatons mposed upon hm
(Artce 583).
I# &s&r&cts( "ho is respo#si+)e or repairs a#% ta3es?
(1) In the case of repars, t depends:
a) For ordnary repars, or those requred by the natura use of the thng and are
ndspensabe for ts preservaton - the usufructuary s responsbe;
b) For extra-ordnary repars, or those whch are nether requred by the wear
and tear due to the natura use of the thng nor are ndspensabe for ts
preservaton - the naked owner s responsbe (Artces 592, 593)
(2) In case of taxes, t depends:
a) For those mposed upon or whch consttute a en on the fruts - the
usufructuary s responsbe;
b) For those mposed drecty upon the thng or capta tsef - the naked owner s
responsbe (Artces 596, 597)
B %o#ate% a rea) property to Y( "ho accepte% it. !e ho"e*er reser*e% the
ri$ht o &s&r&ct. Is he re>&ire% to 'a?e a# i#*e#tory or to $i*e sec&rity?
No, because under the aw, the requrements of gvng securty and makng an
nventory do not appy to the donor of a property who reserved the rght of usufruct (Artce
584).
B a#% Y are 'arrie%. They ha*e chi)%re# A( -( a#% C. Y %ie%( he#ce B
'arrie% J. A( -( a#% C are sti)) 'i#ors +&t "ere the recipie#ts o a %o#atio# ro'
F( the ather o B. Is B re>&ire% to 'a?e a# i#*e#tory a#% $i*e sec&rity
co#si%eri#$ that he "o&)% +e a &s&r&ct&ary o sai% property?
Yes, because he contracted a second marrage as provded under Artce 584.
C!APTER /. EBTIN8DIS!MENT OF DSDFRDCT
What are the 'o%es o e3ti#$&ishi#$ &s&r&cts?
(1) By the death of the usufructuary, uness a contrary ntenton ceary appears;
(2) By the expraton of the perod for whch t was consttuted, or by the fufment of
any resoutory condton provded n the tte creatng the usufruct;
(3) By merger of the usufruct and ownershp n the same person;
(4) By renuncaton of the usufructuary;
(5) By the tota oss of the thng n usufruct;
(6) By the termnaton of the rght of the person consttutng the usufruct; and
Page 58
Notes on Property
Kathryn P. Dea Serna
(7) By prescrpton (Artce 603).
B "as $ra#te% a &s&r&ct o*er a parce) o )a#% "ith a +&i)%i#$ co#str&cte%
thereo#. The +&i)%i#$ "as tota))y %estroye%. State the ri$hts o the &s&r&ct&ary.
The rghts of the usufructuary are:
1. He has the rght to make use of the and and the materas;
2. If the owner of the and shoud wsh to construct another budng, he sha have a
rght to occupy the and and make use of the materas, but s obged to pay the
usufructuary, durng the contnuance of the usufruct, the nterest upon the sum
equvaent to the vaue of the and and of the materas (Artce 607).
A "as $i*e# a &s&r&ct o*er a +&i)%i#$. !e shares i# the pay'e#t o the
i#s&ra#ce o*er the +&i)%i#$ "ith the o"#er. I# case o )oss o the +&i)%i#$( "hat
are his ri$hts?
Hs rghts are:
1. He sha contnue to en|oy the new budng f the owner shoud construct one; or
2. He sha receve the nterest on the nsurance ndemnty f the owner does not
wsh to rebud (Artce 608).
S&ppose the &s&r&ct&ary re&se% to co#tri+&te to the i#s&ra#ce o*er the
+&i)%i#$( state the r&)es.
The owner sha receve the fu amount of the nsurance ndemnty n case of oss,
shoud the usufructuary have refused to contrbute to the nsurance, the owner nsurng the
tenement aone, the atter sha receve the fu amount of the nsurance ndemnty n case of
oss, savng aways the rght granted to the usufructuary n the precedng artce (Artce
608, par. 2).
State the r&)es i the thi#$ i# &s&r&ct is e3propriate% or p&+)ic &se.
In such a case, the owner sha be obged to repace t wth another thng of the
same vaue and of smar condton or to pay the usufructuary the ega nterest on the
amount of the ndemnty for the whoe perod of the usufruct. If the owner chooses the atter
aternatve, he sha gve securty for the payment of the nterest (Artce 609).
Is the +a% &se o the thi#$ i# &s&r&ct a $ro&#% to e3ti#$&ish the ri$ht?
No, under Artce 610.
What is the ri$ht o the o"#er i there is +a% &se o the thi#$ +y the
&s&r&ct&ary?
If the abuse shoud cause consderabe n|ury to the owner, the atter may demand
that the thng be devered to hm, bndng hmsef to pay annuay to the usfructuary the net
proceeds of the same, after deductng the expenses and the compensaton whch may be
aowed hm for ts admnstraton (Artce 610).
A( -( a#% C "ere $i*e# the &s&r&ct o a parce) o )a#% +y B. A a#% - %ie%(
)ea*i#$ C a)o#e. What is the eect o A a#% -Hs %eath o# the &s&r&ct?
Page 59
Notes on Property
Kathryn P. Dea Serna
Nothng. Under the aw, a usufruct consttuted n favor of severa persons vng at the
tme of ts consttuton sha not be extngushed unt the death of the ast survvor (Artce
611).
Dpo# the ter'i#atio# o the &s&r&ct( "hat '&st +e %o#e to the thi#$ he)%
i# &s&r&ct?
Upon the termnaton of the usufruct, the thng n usufruct sha be devered to the
owner, wthout pre|udce to the rght pertanng to the usufructuary or hs hers for taxes and
extraordnary expenses whch shoud be rembursed. After the devery has been made, the
securty or mortgage sha be canceed (Artce 612).
TITLE VII. EASEMENTS AN< SERVITD<ES
Chapter ,. EASEMENTS IN 8ENERAL
Sectio# ,. <IFFERENT LIN<S OF EASEMENTS
<ei#e ease'e#t or ser*it&%e.
An easement or servtude s an encumbrance mposed upon an mmovabe for the
beneft of a communty or one or more persons (persona easements |Artce 614|) or for the
beneft of another mmovabe beongng to a dfferent owner (rea or preda easement
|Artce 613|).
Who are the parties to a# ease'e#t?
Domnant estate - the mmovabe n favor of whch the easement s estabshed.
Servent estate - that whch s sub|ect thereto (Par. 2, Artce 613).
<isti#$&ish ease'e#t ro' ser*it&%e.
Easements s the name used n common aw countres; servtude, n cv aw
countres.
An easement under common aw s ony one form of servtude (servitus), the atter
term beng broader.
An easement under common aw s aways preda or rea (n favor of reaty);
servtude refers to a preda or rea easement upon the one hand, or to a persona
easement upon the other hand.
Note: As used n the Cv Code, however, easement s equvaent to servtude. Term
"easement" was used nstead of "servtude" because the former s better known n the
Phppnes and because t s the accepted term n the Engsh anguage, the Cv Code
havng been wrtten n Engsh.
What are the characteristics o ease'e#t?
It s a rea rght - therefore an acton in rem s possbe aganst the possessor of the
servent estate.
It s mposabe ony on anothers property - hence, there can be no true easement on
ones own property; thus merger n the same of the ownershp of the domnant
estate extngushes the easement.
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Notes on Property
Kathryn P. Dea Serna
It s aenabe - a jus in re aliena (a rea rght that may be aenated athough the
naked ownershp (nuda ,ro,rietas@ s mantaned.
It s a mtaton or encumbrance on the servent estate for anothers beneft.
There s nherence (or nseparabty), from the estate to whch t beongs (Artce
617).
It s ndvsbe (even f the tenement be dvded) |Artce 618|.
It s ntransmssbe (uness the tenement affected be aso transmtted or aenated).
It s perpetua (as ong as the domnant and/or the servent estate exsts uness
sooner extngushed by the causes enumerated by aw.
What is the #at&re o a# ease'e#t?
By ts very nature, an easement nvoves an abnorma restrcton on property rghts
of the servent owner and s regarded as a charge or encumbrance on the servent estate,
thus, easements are not presumed but maybe mposed by aw. It s ncumbent upon the
owner of the domnant estate to estabsh by cear and convncng evdence the presence of
a the precondton before hs cam for easement of rght of way may be granted. If t
cannot be proven, t cannot be granted. (Cristo*al vs. CA, /.R. No. 1&'..!, 0une &&, 1!!)@.
Ca# there +e ease'e#t o# perso#a) property?
There can be no easement mposed on persona property; ony mmovabes (not as
defned by the Code, but those whch reay cannot be moved) may be burdened wth
easements. Such mmovabes ncude ands, budngs, roads.
What are the %iere#t c)asses o ease'e#ts?
As to recpent of beneft - Rea, when the easement s n favor of another
mmovabe, or persona, when t s n favor of a communty, or one or more persons
to who the encumbered estate does not beong (Artces 613, 614).
As to source - Lega, f estabshed by aw, or vountary, f estabshed by the w of
the owners (Artce 619); and mxed, f created party by agreement and party by
aw. Lega easements, on the other hand, have for ther ob|ect ether pubc use or the
nterest of prvate persons (Artce 634).
As to ts exercse - Contnuous or dscontnuous, apparent or non-apparent; postve
or negatve.
Contnuous easements are those the use of whch are or may be ncessant, wthout
nterventon of any act of man (Artce 615, par 1).
Dscontnuous easements are those whch are used at ntervas and depend upon the
acts of man (Artce 615, par. 3).
Apparent easements are those whch are made known and are contnuay kept n
vew by externa sgns that revea the use and en|oyment of the same (Artce 615, par. 3).
Non-apparent easements are those whch show no externa ndcaton of ther
exstence (Artce 615, par. 4).
Postve easements are those whch mpose upon the owner of the servent estate the
obgaton of aowng somethng to be done or dong t hmsef (Artce 615).
Negatve easements are those whch prohbt the owner of the servent estate from
dong somethng whch he coud awfuy do f the easement dd not exst (Artce 615).
Page 61
Notes on Property
Kathryn P. Dea Serna
Sectio# 4. MO<ES OF ACIDIRIN8 EASEMENTS
!o" are ease'e#ts ac>&ire%?
Contnuous and apparent easements are acqured ether by vrtue of a tte or by
prescrpton of ten years (Artce 620), whe contnuous and non-apparent easements and
dscontnuous easements, whether apparent or non-apparent, can ony be acqured by vrtue
of a tte (Artce 622).
What %oes the ter' tit)e 'ea#?
Tte does not necessary mean a document. It means a |urdca act or aw suffcent
to create an encumbrance (ke aw donaton, w, contract)
Ca# a# ease'e#t o ri$ht o "ay +e ac>&ire% +y prescriptio#?
No, because t s dscontnuous n character, and under the aw, ony those whch are
both apparent and contnuous can be acqured by prescrpton.
!o" sha)) the perio% o possessio# +e co'p&te% i# or%er that a# ease'e#t
'ay +e ac>&ire% +y prescriptio#?
In order to acqure an easement by prescrpton, the tme of possesson sha be
computed as foows:
In postve easements - from the day on whch the owner of the domnant estate, or
the person who may have use of the easement, commenced to exercse t upon the
servent estate.
In negatve easements - from the day on whch the owner of the domnant estate
forbade, by an nstrument acknowedged before a notary pubc, the owner of the
servent estate, from executng an act whch woud be awfu wthout the easement
(Artce 621).
Who 'a?es the #otaria) prohi+itio# or "ho sho&)% co''e#ce the e3ercise
o the ease'e#t?
The domnant estate, through ts owner or usufructuary or possessor or ega
representatve; n other words, any one who desres to estabsh the easement.
A a#% - are #ei$h+ors. They o"# a party "a)). A 'a?es a# ope#i#$ or
"i#%o" i# the party "a)) i# 4::0. Whe# ca# - c)ose the ope#i#$?
B can cose t at anytme before 2015 because f by that tme the wndow s st open,
A has aready acqured the easement of ght and vew by prescrpton of 10 years, counted
from the openng of the wndows snce ths s a postve easement (Artce 668, par. 1). A
wndow on a party wa s somethng aowed by a co-owner to be done on hs own property
(owned n common) and may therefore gve rse to a postve easement or easement of
sufferance.
A a#% - are #ei$h+ors. O# his +&i)%i#$Hs "a))( A ope#e% a "i#%o" +e#eath
the cei)i#$ @oists to a%'it )i$ht i# 4::0. I# 4:,0( ca# - sti)) o+str&ct the )i$ht +y
co#str&cti#$ o# his o"# )ot a +&i)%i#$ hi$her tha# AHs?
Yes, uness A makes a notara prohbton prohbtng B from makng the obstructon.
Page 62
Notes on Property
Kathryn P. Dea Serna
I i# 4::0( A 'a?es the prohi+itio#( 'ay - sti)) 'a?e the o+str&ctio# i#
4:,4?
Yes, because t s ony n 2015 (ten years after the notara prohbton) when A may
be sad to have acqured ths negatve easement of ght and vew. After 2015, B may no
onger obstruct.
Is the ease'e#t o )i$ht a#% *ie" positi*e or #e$ati*e?
It depends.
If made on ones own wa and the wa does not extend over the neghbors and, the
easement s negatve (because he ony does an act of ownershp, and to create an
easement, a prohbton s requred.
If made on ones own wa whch extends over the neghborng and (nvadng ts
atmospherc area), or f made on a party wa, the easement s created because of an
act of sufferance or aowance, thus the easement s postve.
!o" 'ay the a+se#ce o proo sho"i#$ the ori$i# o co#ti#&o&s #o#7
appare#t a#% %isco#ti#&o&s ease'e#ts +e c&re%?
It can be cured by a deed of recognton by the owner of the servent estate or by a
fna |udgment (Artce 623).
What are the r&)es o# ease'e#ts that appare#t)y e3ist sho&)% they +e
a)ie#ate%?
Before the aenaton, there s no true easement.
After aenaton:
1. There arses an easement f the sgn contnues to reman there uness there s
a contrary agreement. (The contnuance of the sgn s the tte). (Though the
aw says "contnues", n reaty, the easement arses for the frst tme,
because before the aenaton, no true easement exsted).
2. There s no easement f the sgn s removed or f there s an agreement to ths
effect (Artce 625).
What is the eect o the esta+)ish'e#t o a# ease'e#t?
Upon the estabshment of an easement, a the rghts necessary for ts use are
consdered granted.
What is the re>&isite i# or%er that a *o)&#tary ease'e#t 'ay aect thir%
perso#s?
To pre|udce thrd persons, vountary easements must be regstered. (Regstraton s
not generay not essenta for ega easements snce ths exsts as a matter of aw and
necessty.
What are the )i'itatio#s &po# the ri$ht o the o"#er o the %o'i#a#t estate
to e3ercise the ease'e#t o#ce it is ac>&ire%?
The mtatons are as foows:
Frst that the owner of the domnant estate cannot use the easement except for the
beneft of the mmovabe orgnay contempated; and
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Notes on Property
Kathryn P. Dea Serna
Second, he cannot exercse t n another manner other than that prevousy
estabshed (Artce 626).
A "as e3c)&si*e)y a))o"e% +y - to pass thro&$h his )a#%. Ater a "hi)e( A
i#*ite% others to pass thro&$h or &se the ease'e#t. Ca# - prohi+it the act o the
others? Why?
Yes, because to aow others to pass or cross through Bs estate woud ncrease the
burden. An easement sha be used ony for the beneft of the mmovabe orgnay
contempated and n the manner prevousy estabshed (Artce 626).
Sectio# 2.
RI8!TS AN< O-LI8ATIONS OF T!E OWNERS
OF T!E <OMINANT AN< SERVIENT ESTATES
What are the ri$hts o the %o'i#a#t estate?
To exercse the easement and a necessary rghts for ts use ncudng accessory
easements (Artce 625).
To make on the servent estate a works necessary for the use and preservaton of
the servtude, but:
A. Ths must be done at hs own expense;
B. He must notfy the servent estate;
C. He must seect convenent tme and manner; and
D. He must not ater the easement nor render t more burdensome (Artce 627).
To ask for a mandatory n|uncton to prevent mparment or obstructon n the
exercse of the easement when the owner of the servent estate obstructs the rght of
way by budng a wa or fence.
To renounce totay (for an easement s ndvsbe) the easement f he desres
exempton from contrbuton to expenses (Artce 628).
What are the o+)i$atio#s o the %o'i#a#t estate?
He cannot ater the easement (Artce 627).
He cannot make t more burdensome (Artce 627).
A. Thus he cannot use the easement except for movabe orgnay contempated
(Artce 626);
B. In the easement of rght of way, he cannot ncrease the agreed wdth of the
path, nor depost so or materas outsde of the boundares agreed upon (for
these acts woud ncrease the burden), but he may aow others to use the
path (ths reay does not ncrease the burden) except f the contrary has been
stpuated.
If there be severa domnant estates, each must contrbute to necessary repars and
expenses n proporton to the benefts receved by each estate (and not n proporton
to the vaue of each estate). (In the absence of proof, we shoud presume the
benefts to be equa).
Regardng the makng of repars, he cannot use the easement except for movabe
orgnay contempated (Artce 626).
Page 64
Notes on Property
Kathryn P. Dea Serna
What are the ri$hts o the ser*ie#t estate?
To retan ownershp and possesson of the porton of hs and affected by the
easement (Artce 630) even f ndemnty s gven (as n the case of easement of rght
of way) (Artce 649), uness the contrary has been stpuated.
To make use of the easement, uness deprved by stpuaton provded that the
exercse of the easement s not adversey affected (Artce 630) and provded further
that he contrbutes to the expenses n proporton to benefts receved, uness there s
a contrary stpuaton (Artce 628, par. 2)
To change the ocaton of a very nconvenent easement provded that an equay
convenent substtute s made, wthout n|ury to the domnant estate (Artce 629,
par. 2)
What are the o+)i$atio#s o the ser*ie#t estate?
He cannot mpar the use of the easement (Artce 629, par. 1).
He must contrbute to the expenses n case he uses the easement, uness there s a
contrary stpuaton (Artce 628, par. 2).
In case of mparment, to restore condtons to the status 4uo at hs expense pus
damages.
To pay for the expenses ncurred for the change of ocaton or form part of the
easement (n proper case) (Artce 629, par. 2).
Sectio# /
MO<ES OF EBTIN8DIS!MENT OF EASEMENTS
What are the 'o%es o e3ti#$&ishi#$ ease'e#ts?
Easements are extngushed:
(1) By merger n the same person of the ownershp of the domnant and servent estates;
(2) By nonuser for ten years; wth respect to dscontnuous easements, ths perod sha
be computed from the day on whch they ceased to be used; and, wth respect to contnuous
easements, from the day on whch an act contrary to the same took pace;
(3) When ether or both of the estates fa nto such condton that the easement cannot
be used; but t sha revve f the subsequent condton of the estates or ether of them
shoud agan permt ts use, uness when the use becomes possbe, suffcent tme for
prescrpton has eapsed, n accordance wth the provsons of the precedng number;
(4) By the expraton of the term or the fufment of the condton, f the easement s
temporary or condtona;
(5) By the renuncaton of the owner of the domnant estate;
(6) By the redempton agreed upon between the owners of the domnant and servent
estates (Artce 631).

What are the other $ro&#%s or e3ti#$&ish'e#t o ease'e#t?
The modes of extngushng easements enumerated n Artce 631 are not mtatve.
There are other grounds not mentoned theren, such as:
a) Expropraton of the servent estate;
b) Permanent mpossbty to make use of the easement; or
permanent nutty of the easement;
c) Annument, rescsson, or canceaton of the tte that
consttuted the easement;
d) Abandonment of the servent estate;
Page 65
Notes on Property
Kathryn P. Dea Serna
e) Resouton of the grantor to create the easement;
f) Regstraton of the servent estate as Free, that s, the
easement was not regstered on the tte;
g) In the case of a ega easement of rght of way, the openng of
an adequate outet to the hghway extngushes the easement,
f the servent owner makes a demand for such extngushment.
!o" %oes the &se o ease'e#t prescri+e?
The form or manner of usng the easement may prescrbe as the easement tsef, and
n the same way (Artce 632).
The prescrpton refers to (a) the form and manner of usng the easement, and (b)
the easement tsef. They prescrbe n the same way, meanng possesson or use of ten
years. On the other hand, easement may be extngushed by non-user for ten years (Artce
631, par. 2).
Wo&)% the #o#7&ser +y so'e co7o"#ers o the %o'i#a#t estate res&)t i#
prescriptio#?
If the domnant estate beongs to severa persons n common, the use of the
easement by any one of them prevents prescrpton wth respect to the others (Artce 633).
The non-use by some w not resut n parta extngushment because of the
ndvsbty of the easement (Artce 618)
Chapter 4
LE8AL EASEMENTS
Sectio# ,
8ENERAL PROVISIONS
What are )e$a) ease'e#ts?
They are easements mposed by aw, and whch have for ther ob|ect ether for pubc
use or the nterest of prvate persons (Artce 634).
An easement s an encumbrance mposed upon an mmovabe for the beneft of a
communty or one or more persons, or for the beneft of another mmovabe owned by
another person.
If an easement s mposed by aw, t s known as ega easement. When t s
consttuted by the agreement of the owners of the domnant estate and the servent estate
or by w, t s known as vountary easement (Artces 688-693). When t s party consttuted
by agreement and party by aw, t s known as a mxed easement.
What are the ?i#%s o )e$a) ease'e#ts?
There are eght (8) ega easements under the Cv Code:
Easements reatng to waters (Artces 637-648);
Rght of way (Artces 649-657);
Party wa (Artces 658-666);
Lght and vew (Artces 667-673);
Dranage (Artces 674-676)
Page 66
Notes on Property
Kathryn P. Dea Serna
Intermedate dstances (Artces 677-681);
Easements aganst nusance (Artces 682-683);
Latera and sub|acent support (Artces 684-687)
What $o*er#s )e$a) ease'e#ts or pri*ate perso#s or pri*ate &se?
Easements estabshed by aw n the nterest of prvate persons or for prvate use
sha be governed by:
The provsons of Tte VII (Easements or Servtudes). Ths s wthout pre|udce to the
provsons of genera or oca aws and ordnances for the genera wefare. The atter
prevas over the Cv Code n case of confct as ong as the am of the oca aws and
ordnances s the genera wefare of the pubc or communty;
Agreements of the nterested partes, f they had so desred to modfy the
easements, and the modfcaton s not prohbted by aw, or no n|ury w be suffered
by a thrd person (Artce 636).
Sectio# 4
EASEMENTS RELATIN8 TO WATERS
What are the ?i#%s o )e$a) ease'e#ts re)ati#$ to "aters?
Natura dranage of ands (Artce 50 of the Water Code, amendng Artce 637
of the Cv Code);
Natura dranage of budngs (Artce 674);
Easements of rparan banks of navgaton, foatage, fshng, savage (Artce
51 of the Water Code, amendng Artce 638 of the Cv Code);
Easement of a dam (Artces 639, 647);
Easement for drawng water or for waterng anmas (Artces 640-641);
Easement of aqueduct (Artces 643-646);
Easement for the constructon of a stop ock or suce gate (Artce 647).
What are the o+)i$atio#s o the ser*ie#t estate .)e$a) ease'e#t or #at&ra)
%rai#a$e o )a#%s1?
4,
21
Artce 637 (Repeaed). The repeang aw provdes:
Artce 50. Lower estates are obged to receve the waters whch naturay and
wthout the nterventon of man descend from the hgher estates, as we as the stones or
earth whch they carry wth them.
The owner of the ower estate cannot construct works whch w mpede ths natura
fow, uness he provdes an aternatve method of dranage; nether can the owner of the
hgher estate make works whch w ncrease ther natura fow (P.D. No. 1067, Water Code)
(Source: Artce 637 wth an amendment. By way of excepton, the servent estate may now
construct works whch may obstruct the natura fow of the waters as ong as an aternatve
dranage has been provded.)
Artce 637. Lower estates are obged to receve the waters whch naturay and
wthout the nterventon of man descend from the hgher estates, as we as the stones or
earth whch they carry wth them.
The owner of the ower estate cannot construct works whch w mpede ths
easement; nether can the owner of the hgher estate make works whch w ncrease the
Page 67
Notes on Property
Kathryn P. Dea Serna
The servent estates, whch are the ower estates have the obgaton to receve not
ony the waters that naturay fow from the domnant estates (hgher estates), but aso the
stones and sos fowng wth them. Waters coected artfcay n reservors or prvate dams
are not ncuded because n such cases the eement of human nterventon s present.
Servent estates can refuse to accept such waters and the eements whch the waters carry.
By reason of the obgaton to receve the waters together wth the stones and sos
naturay fowng form the hgher estates, the servent estates cannot do any of the
foowng:
Constructon of works that w mpede the easement or whch w dvert the fow of
the waters and burden any tenement wthout provdng for an aternatve route of
dranage.
Encosure of the and by dtches and fences to mpede the fow of the waters (-unod
vs. 9eneses, 11 Phil. 1&)). However, n :n$siaco vs. :n$siaco, 11 Phil. 11!6, the
easement was hed to have been extngushed for non-user, when the domnant
estate faed to fe an acton to demosh the dke wthn ten years.
What are the o+)i$atio#s o the %o'i#a#t estates?
The owner of the domnant estates cannot cause the constructon of works whch w
ntensfy the burden of the servent estates such as ncreasng the veocty or speed
of the descent. They are, however, aowed to construct works that w be benefca
to the servent estates, such as works desgned to prevent eroson of the and.
They must compensate the owners of the servent estates f the waters are the resut
of an overfow from rrgaton dams, or the resut of artfca descent done by man
and damages caused by reason thereof.
There w be no ndemnty f the condtons ad down n the aw had been comped
wth by the domnant estate.
What are the ease'e#ts co*ere% o# riparia# +a#?s?
44
burden.
22
Artce 638 has been repeaed by Artce 51 of PD 1067 (Water Code)
Artce 51. The banks of rvers and streams and the shores of the seas and akes
throughout ther entre ength and wthn a zone of three (3) meters n urban areas, twenty
(20) meters n agrcutura areas and forty (40) meters n forest areas, aong ther margns,
are sub|ect to the easement of pubc use n the nterest of recreaton, navgaton, foatage,
fshng and savage. No person sha be aowed to stay n ths zone onger than what s
necessary for recreaton, navgaton, foatage, fshng or savage or to bud structures of any
knd.
Artce 638. The banks of rvers and streams, even n case they are of prvate
ownershp, are sub|ect throughout ther entre ength and wthn a zone of three meters
aong ther margns, to the easement of pubc use n the genera nterest of navgaton,
foatage, fshng and savage.
Estates ad|onng the banks of navgabe or foatabe rvers are, furthermore, sub|ect
to the easement of towpath for the excusve servce of rver navgaton and foatage.
If t be necessary for such purpose to occupy ands of prvate ownershp, the proper
ndemnty sha frst be pad.
Page 68
Notes on Property
Kathryn P. Dea Serna
Easement of pubc use n the nterest of recreaton;
Navgaton;
Foatage;
Fshng;
Savage
What is the "i%th o ;o#e s&+@ect to ease'e#ts o# +a#?s o ri*ers( strea's(
shores o seas a#% )a?es?
Urban areas - 3 meters;
Agrcutura areas - 20 meters;
Forest areas - 40 meters;
The above measurements foow the entre ength of the rvers, streams, shores, seas
and akes aong ther margns.
The constructon of any structures of any knd on the zones s prohbted. And the
ength of stay on the areas cannot be onger than what s necessary for the purpose
ndcated.
What is ease'e#t o a+&t'e#t o a %a'?
Whenever for the dverson or takng of water from a rver or brook, or for the use of
any other contnuous or dscontnuous stream, t shoud be necessary to bud a dam, and
the person who s to construct t s not the owner of the banks, or ands whch must support
t, he may estabsh the easement of abutment of a dam, after payment of the proper
ndemnty (Artce 639).
If the dam s constructed wthout permsson of the owner of the and where t was
constructed, the atter can have t demoshed as a nusance (Solis vs. Pujeda, =& Phil. 6)7).
What are co'p&)sory ease'e#ts or %ra"i#$ "ater or or "ateri#$ a#i'a)s?
Compusory easements for drawng water or for waterng anmas can be mposed
ony for reasons of pubc use n favor of a town or vage, after payment of the proper
ndemnty (Artce 640).
These two easements can be mposed ony for reasons of pubc use and not for the
prvate use of one or a few persons. The easements whch are compusory are aowed ony
n favor of a town or vage. A town refers to a muncpaty. A vage refers to a barro or
barangay, or to a we popuated communty. The reason of the aw s the factaton of the
estabshments of rura towns and barros by the convenence of access to water needed.
What are the ease'e#ts .a#% o+)i$atio#s1 i'pose% o# the ser*ie#t estate
or %ra"i#$ "ater a#% or "ateri#$ a#i'a)s?
Easements for drawng water and for waterng anmas carry wth them the obgaton
of the owners of the servent estates to aow passage to persons and anmas to the pace
where such easements are to be used, and the ndemnty sha ncude ths servce (Artc e
641).
The wdth of the mped rght of way cannot exceed ten (10) meters (Artce 657, ast
par.).
Page 69
Notes on Property
Kathryn P. Dea Serna
What is ease'e#t o a>&e%&ct?
Any person who may wsh to use upon hs own estate any water of whch he can
dspose sha have the rght to make t fow through the ntervenng estates, wth the
obgaton to ndemnfy ther owners, as we as the owners of the ower estates upon whch
the waters may fter or descend (Artce 642).
Defnton of aqueduct - An aqueduct s a condut or artfca channe for conductng
water from a dstance. The Artce speaks of a compusory easement of aqueduct.
What are the o+)i$atio#s o the o"#er o the %o'i#a#t estate "ho e3ercises
the ri$ht o ease'e#t o a>&e%&ct?
One desrng to make use of the rght granted n the precedng artce s obged:
(1) To prove that he can dspose of the water and that t s suffcent for the use
for whch t s ntended;
(2) To show that the proposed rght of way s the most convenent and the east
onerous to thrd persons;
(3) To ndemnfy the owner of the servent estate n the manner determned by
the aws and reguatons (Artce 643).
The absence of any one of these requrements w prevent the mposton of the
easement of aqueduct on the ntervenng estates.
Note that the exstence of an easement of rght of way does not necessary ncude
the easement of aqueduct.
What are the restrictio#s o# ease'e#t o a>&e%&ct i the sa'e is or
pri*ate i#terest o#)y?
The easement of aqueduct for prvate nterest cannot be mposed on budngs,
courtyards, annexes, or outhouses, or on orchards or gardens aready exstng (Artce 644).
If an easement of aqueduct w be aowed to burden the sad propertes, there w
be an nvason of the prvacy of the premses of the owners thereof. However, f the
easement of aqueduct s for the beneft of the pubc use or communty, t can be mposed
on the sad enumerated propertes. Pubc nterest prevas over prvate nterest.
What are the ri$hts o the ser*ie#t estate %espite the e3iste#ce o
ease'e#t o a>&e%&ct?
The easement of aqueduct does not prevent the owner of the servent estate from (1)
cosng or fencng t, or (2) from budng over the aqueduct; provded that (10 no damage s
caused to the aqueduct; or, repars and ceanngs of the aqueduct sha not be rendered
mpossbe (Artce 645).
The easement of aqueduct does not prevent the owner of the servent estate from
cosng or fencng t, or from budng over the aqueduct n such manner as not to cause the
atter any damage, or render necessary repars and ceanngs mpossbe.
For )e$a) p&rposes( ho" is ease'e#t o a>&e%&ct co#si%ere%?
For ega purposes, the easement of aqueduct sha be consdered as contnuous and
apparent, even though the fow of the water may not be contnuous, or ts use depends upon
Page 70
Notes on Property
Kathryn P. Dea Serna
the needs of the domnant estate, or upon a schedue of aternate days or hours (Artce
646).
As such, the easement may be acqured by tte or by prescrpton of ten years
(Artce 620).
Note: Snce under the Water Code (Artces 5 and 6), a waters beong to the State,
an easement of aqueduct coud no onger be acqured by prescrpton, uness the waters
nvoved take the nature of patrmona property of the State.
What are the re>&ire'e#ts or the esta+)ish'e#t o stop )oc? or s)&ice $ate
i# the +e% o a strea'?
One who for the purpose of rrgatng or mprovng hs estate, has to construct a stop
ock or suce gate n the bed of the stream from whch the water s to be taken, may
demand that the owners of the banks permt ts constructon, after payment of damages,
ncudng those caused by the new easement to such owners and to the other rrgators
(Artce 647).
What is the pre*ai)i#$ )a" o# "aters?
42
The estabshment, extent, form and condtons of easements of water not expressy
determned by the provsons of ths code (PD 1067, Water Code) sha be governed by the
provsons of the Cv Code (Artce 52, PD 1067).
The Water Code (PD 1067) s now the man speca aw nvovng waters. In case of
confct between the Water Code and the Cv Code, the Water Code sha preva beng the
atter n pont of tme. However, the Cv Code sha reman the prevang aw n case of
confct on the foowng matters:
Estabshment of easement of waters;
Extent of easement of waters;
Form of easement of waters;
Condtons of easement of waters
- provded these matters have not been expressy determned by the Water
Code.
Sectio# 2
EASEMENT OF RI8!T OF WAY
What is ease'e#t o ri$ht o "ay?
It s an easement or prvege by whch one person or a partcuar cass of persons s
aowed to pass over anothers and, usuay thru one partcuar path or ne. The term rght
of way, upon the other hand, may refer ether to the easement tsef, or smpy, to the strp
of and over whch passage can be done.
23
Artce 648 has been repeaed by Artce 52 of PD 1067.
Artce 648. The estabshment, extent, form and condtons of the servtudes of
waters, to whch ths secton refers, sha be governed by the speca aws reatng thereto
nsofar as no provson therefor s made n ths Code.
Page 71
Notes on Property
Kathryn P. Dea Serna
What are the re>&isites or ease'e#t o ri$ht o "ay?
(1) That the domnant estate s surrounded by other mmovabes and has no
adequate outet to a pubc hghway (Art. 649, par. 1);
(2) After payment of proper ndemnty (Art. 649, par. 1);
(3) That the soaton was not due to acts of the propretor of the domnant estate
(Art. 649, ast par.); and,
(4) That the rght of way camed s at the pont east pre|udca to the servent
estate; and nsofar as consstent wth ths rue, where the dstance from the domnant estate
to a pubc hghway may be the shortest (Art. 650).
24

NotesE
- The burden of provdng the exstence of the prerequstes to vady cam a
compusory rght of way es on the owner of the domnant estate.
25
- In order to |ustfy the mposton of the servtude of rght of way, there must
be a rea, not a fcttous or artfca necessty for t. Mere convenence for
the domnant estate s not what s requred by aw as the bass for settng up
a compusory easement. Even n the face of a necessty, f t can be satsfed
wthout mposng the servtude, the same shoud not be mposed. Ths
easement can aso be estabshed for the beneft of a tenement wth an
nadequate outet, but not when the outet s merey nconvenent.
26
- In the case of Ramos v. /atchalian, /.R. No. 7'!', :cto*er 1&, 1!)7, 1'=
SCRA 7., the Supreme Court dened access to Sucat Road through
Gatchaan Avenue n vew of the fact that pettoner had a road rght of way
provded by the Sobrna Rodrguez Lombos Subdvson ndcated as Lot
4133-G-12 n ts subdvson pan for the buyers of ts ots, notwthstandng
that sad ot was st undeveoped and nconvenent to pettoner. Even f
Ramos, the pettoner theren, had "to pass through other ots beongng to
other owners, whch are grassy and cogona, as temporary ngress/egress
wth great nconvenence partcuary due to food and mud," the Court dd
not aow the easement because t woud run counter to exstng
|ursprudence that mere convenence for the domnant estate does not
suffce to serve as bass for the servtude. Ths rung was reterated n
Rivera v. %ntermediate A,,ellate Court, /.R. No. 7=&=!, 0anuar6 &, 1!)!,
16! SCRA .7, .1. and Consta*ella Cor,oration v. Court of A,,eals, /.R.
No. )'11, 0anuar6 &', 1!!1, 1!. SCRA ..., ..!.
- Lega easement does not depend upon the consent of the servent owner or
owners.
- Generay, an easement of rght of way s compusory. However, by way of
excepton, f the soaton of the mmovabe s due to the acts of the owner of
the mmovabe (supposed domnant estate), the easement s not
compusory. There s no ega obgaton on the part of the servent estate to
grant rght of way.
- If the outet to a hghway s through water, ke rver, ake or sea, and the
same s not dangerous to cross nor do they pose grave nconvenence, the
24
2
Smeon Foro vs. Orando A. Lenado, G.R. No. 75723, |une 2, 1995.
25
Smeon Foro vs. Orando A. Lenado, Supra.
26
Ibd.
Page 72
Notes on Property
Kathryn P. Dea Serna
rght of way shoud not be granted. If the waterway s too expensve, t s as
f there s no avaabe outet to the hghway. In whch case, the rght of way
s grantabe.
!o" sha)) the i#%e'#ity to +e pai% +y the o"#er o the %o'i#a#t estate to the
o"#er o the ser*ie#t estate +e assesse%?
- If the passage s permanent, pay the vaue of and occuped by the path pus
damages. Upon extncton of the easement, the ndemnty s returned
wthout nterest, for the nterest s consdered rent (Artce 655).
- If temporary, pay for the damages caused. It s temporary when, for
exampe, the estate s not beng cutvated the whoe year round, and when
harvestng s ony once n a whe (Artce 649, 3
rd
par.), or when the carryng
of materas s needed to mprove a budng (Artce 656).
What are the t"o %iere#t i#sta#ces "here i#%e'#ity is #ot re>&ire%?
Whenever a pece of and acqured by sae, exchange or partton, s surrounded by
other estates of the vendor, exchanger, or co-owner, he sha be obged to grant a rght of
way wthout ndemnty.
In case of a smpe donaton, the donor sha be ndemnfed by the donee for the
estabshment of the rght of way (Artce 652).
What is the r&)e i the $ra#torHs or $ra#teeHs )a#% is e#c)ose%?
In the case of the precedng artce, f t s the and of the grantor that becomes
soated, he may demand a rght of way after payng a ndemnty. However, the donor sha
not be abe for ndemnty (Artce 653).
Exampe:
X sod a parce of and to Y, but t s surrounded by Xs and. What s the rght of Y? He
can demand a rght of way wthout ndemnty.
Suppose the property gven to Y was donated, w your answer be the same? No,
because n ths case, the donor sha be ndemnfed.
Who +ears the e3pe#ses or ta3es( a#% repairs o the ri$ht o "ay?
- Even though permanent, the path beongs to the servent estate, and he
pays a the taxes.
- But the domnant estate shoud pay for the repars and shoud pay for the
proportonate share of taxes to the servent estate. Proportonate means the
whoe tax for the whoe estate (Artce 654).
What is the eect &po# the ri$ht o "ay i the o"#er o the %o'i#a#t estate
has @oi#e% his estate to a#other a+&tti#$ o# a p&+)ic roa%( or i a #e" roa% is
ope#e% $i*i#$ it access?
The easement s extngushed provded that the servent estate demands and so ong
as the pubc hghway substantay meets the needs of the domnant estate, and provded
he returns what he may have receved by way of ndemnty. The nterest on the ndemnty
sha be deemed to be n payment of rent for the use of the easement.
Page 73
Notes on Property
Kathryn P. Dea Serna
Causes for extngushment of the easement of rght of way:
- Openng of a new road (Artce 655, par. 2);
- |onng the domnant estate to another (that s the atter becomes aso the
property of the domnant owner) whch abuts, and therefore has access to
the pubc hghway (Artce 655, par. 1) But the new access must be
adequate and convenent.
Notes:
- Extngushment s not automatc, because the aw says that the servent
owner "may demand". It foows that f he chooses not to demand, the
easement remans and he has not duty to refund the ndemnty.
- The Artce appes ony to the ega or compusory easement of rght of way,
not to a vountary one.
What are the 'a3i'&' "i%ths or ease'e#t o "ay or the passa$e o
)i*estoc??
- Anma path - 75 meters;
- Anma tra - 37 meters and 50 centmeters;
- Catte - 10 meters (uness pror to the od Cv Code, vested rghts had been
acqured to a greater wdth)
What are the re>&isites or ease'e#t o ri$ht o "ay or the passa$e o
)i*estoc??
- Payment of ndemnty;
- The easement can be mposed ony for reasons of pubc use n favor of a
town or vage (Artces 640 and 641)
Sectio# /
EASEMENT OF PARTY WALL
What is a party "a))?
Ths s a wa at the dvdng ne of estates. Co-ownershp governs the wa, hence the
party wa s necessary a common wa.
What are the r&)es that $o*er# ease'e#t o party "a))?
- Provsons of the Cv Code on Tte VII (Easements and Servtudes);
- Loca ordnances and customs whch do not confct wth the provsons of the
Cv Code on Tte VII;
- Provsons of the Cv Code n Co-ownershp (Artces 484 to 501)
Whe# is a# ease'e#t o a party "a)) pres&'e% to e3ist?
The exstence of an easement of party wa s presumed, uness there s a tte, or
exteror sgn, or proof to the contrary:
(1) In dvdng was of ad|onng budngs up to the pont of common eevaton;
(2) In dvdng was of gardens or yards stuated n ctes, towns, or n rura
communtes;
(3) In fences, was and ve hedges dvdng rura ands (Artce 659).
!o" 'ay the pres&'ptio# re+&tte%?
Page 74
Notes on Property
Kathryn P. Dea Serna
- Tte to the contrary;
- Exteror sgns to the contrary;
- Proof to the contrary.
What is the r&)e i# case o co#)ict +et"ee# a tit)e a#% e3terior si$#?
A tte conferrng (expressy) ownershp n one owner prevas over a mere exteror
sgn (from whch, there s merey an nference).
What are e3terior si$#s #e$ati*i#$ the e3iste#ce o a party "a))?
It s understood that there s an exteror sgn, contrary to the easement of party wa:
(1) Whenever n the dvdng wa of budngs there s a wndow or openng;
(2) Whenever the dvdng wa s, on one sde, straght and pumb on a ts
facement, and on the other, t has smar condtons on the upper part, but the ower part
sants or pro|ects outward;
(3) Whenever the entre wa s but wthn the boundares of one of the estates;
(4) Whenever the dvdng wa bears the burden of the bndng beams, foors and
roof frame of one of the budngs, but not those of the others;
(5) Whenever the dvdng wa between courtyards, gardens, and tenements s
constructed n such a way that the copng sheds the water upon ony one of the estates;
(6) Whenever the dvdng wa, beng but of masonry, has steppng stones,
whch at certan ntervas pro|ect from the surface on one sde ony, but not on the other;
(7) Whenever ands ncosed by fences or ve hedges ad|on others whch are not
ncosed.
In a these cases, the ownershp of the was, fences or hedges sha be deemed to
beong excusvey to the owner of the property or tenement whch has n ts favor the
presumpton based on any one of these sgns (Artce 660).
What is the .re+&tta+)e1 pres&'ptio# as to %itches or %rai#s?
Dtches or drans opened between two estates are aso presumed as common to
both, f there s no tte or sgn showng the contrary.
There s a sgn contrary to the part-ownershp whenever the earth or drt removed to
open the dtch or to cean t s ony on one sde thereof, n whch case the ownershp of the
dtch sha beong excusvey to the owner of the and havng ths exteror sgn n ts favor
(Artce 661).
Who +ears the cost o repairs o# a#% co#str&ctio# o the party "a))?
The cost of repars and constructon of party was and the mantenance of fences,
ve hedges, dtches, and drans owned n common, sha be borne by a the owners of the
ands or tenements havng the party wa n ther favor, n proporton to the rght of each
(Artce 622, par. 1).
!o" 'ay the co7o"#er e3e'pt hi'se) ro' co#tri+&ti#$ to this char$e?
Nevertheess, any owner may exempt hmsef from contrbutng to ths charge by
renouncng hs part-ownershp, except when the party wa supports a budng beongng to
hm (Artce 662).
What are the re>&isites or the re#&#ciatio# o the share?
Page 75
Notes on Property
Kathryn P. Dea Serna
- It must be tota or compete (not parta) (The rue s dfferent n ordnary co-
ownershp where parta renuncaton s aowed);
- It must be made vountary and wth fu knowedge of the facts;
- It must be made before the expenses are ncurred;
- It s made wth the mped condton that the other owner shoud make or
pay for the repars;
- It must be of both the share n the wa and the share n the and, for the wa
cannot be used wthout the and.
What is the r&)e i the o"#er o a +&i)%i#$ s&pporte% +y a party "a)) %esires
to %e'o)ish the +&i)%i#$?
If the owner of a budng, supported by a party wa desres to demosh the budng,
he may aso renounce hs part-ownershp of the wa, but the cost of a repars and work
necessary to prevent any damage whch the demoton may cause to the party wa, on ths
occason ony, sha be borne by hm (Artc e 663).
May a# o"#er i#crease the hei$ht o a party "a))?
Every owner may ncrease the heght of the party wa, provded that:
- He does so at hs own expense;
- He pays for any damage whch may be caused by the work, even though
such damage be temporary;
- He bears the expenses of mantanng the wa n the part newy rased or
deepened at ts foundaton sha aso be pad for by hm;
- He pays for the ndemnty for the ncreased expenses whch may be
necessary for the preservaton of the party wa by reason of the greater
heght or depth whch has been gven t;
- If the party wa cannot bear the ncreased heght, the owner desrng to
rase t sha be obged to reconstruct t at hs own expense;
- If for ths purpose t be necessary to make t thcker, he sha gve the space
requred from hs own and (Artce 664).
He w however be the excusve owner of the addtons uness Artce 665 s avaed
of.
!o" 'ay the other o"#ers ac>&ire part7o"#ership i# the a%%itio#s?
The other owners who have not contrbuted n gvng ncreased heght, depth or
thckness to the wa may, nevertheess, acqure the rght of part-ownershp theren, by
payng proportonay the vaue
of the work at the tme of the acquston and of the and used for ts ncreased
thckness (Artce 665).
What is the ri$ht o e*ery part7o"#er o a party "a)) as to its &se?
Every part-owner of a party wa may use t n proporton to the rght he may have n
the co-ownershp, wthout nterferng wth the common and respectve uses by the other co-
owners (Artce 666).
Sectio# 0
EASEMENT OF LI8!T AN< VIEW
What is the prohi+itio# o# part7o"#ers o# party "a))s?
Page 76
Notes on Property
Kathryn P. Dea Serna
No part-owner may, wthout the consent of the others, open through the party wa
any wndow or aperture of any knd (Artce 667)
An openng n a party wa up to the pont of common eevaton s an exteror sgn
contradctng the exstence of an easement of party wa (Artce 660, par. 1). Ths means
that the wa s excusvey owned by the person favored by the presence of exteror sgn.
!o" sha)) the perio% o prescriptio# or the ac>&isitio# o a# ease'e#t o
)i$ht a#% *ie" +e co&#te%?
The perod of prescrpton for the acquston of an easement of ght and vew sha
be counted:
(1) From the tme of the openng of the wndow, f t s through a party wa; or
(2) From the tme of the forma prohbton upon the propretor of the ad|onng
and or tenement, f the wndow s through a wa on the domnant estate (Artce 668).
Whe# is a# ease'e#t o )i$ht a#% *ie" positi*e a#% "he# is it #e$ati*e?
- Postve - f the wndow s thru a party wa (Artce 668, par. 1). Therefore,
the perod of prescrpton commences from the tme the wndow s opened.
(The mere openng of the wndow does not create an easement; t s ony
after a suffcent apse of tme the wndow st remans open, that the
easement of ght and vew s created (Artce 668, par. 1).
- Negatve - f the wndow s thru ones own wa, that s, thru a wa of the
domnant estate (Artce 668, par. 2). Therefore, the tme for the perod of
prescrpton shoud begn from the tme of notara prohbton upon the
ad|onng owner.
E3ceptio#E Athough the wndow s on the wa of the domnant estates t the
easement of ght and vew woud be postve f the wndow s on the bacony or extenson
extendng over the and of the servent estate. In such case, there s no need of notara
prohbton.
What are restricte% "i#%o"s?

When the dstances n artce 670 are not observed, the owner of a wa whch s not
party wa, ad|onng a tenement or pece of and beongng to another, can make n t
openngs to admt ght, provded that:
- The openng must be at the heght of the ceng |onts or mmedatey under
the ceng
- The maxmum sze s 30 centmeters square (not more than 30 cm ength or
wdth)
- It must be wth an ron gratng mbedded n the wa;
- It must be wth a wre screen (Artce 669).
Nevertheess, the owner of the tenement or property ad|onng the wa n whch the
openngs are made can cose them shoud he acqure part-ownershp thereof, f there be no
stpuaton to the contrary.
What are the sa#ctio#s or *io)atio#s?
Page 77
Notes on Property
Kathryn P. Dea Serna
The ad|onng owner can compe the domnant owner to cose the openng, or to
compy wth the requrements. If the servent owner has not protested for ten years from the
openng of the apertures, hs acton to compe for cosure s deemed prescrbed.
However, ths does not mean that the servent owner coud not construct a budng
on hs own and whch w obstruct the ght and vew of the domnant owner. The easement
s negatve, there s need of notara prohbton unto the servent owner.
If none had been made, or f one had been made but the requred 10 year perod for
prescrpton had not eapsed, the servent owner can obstruct the ght and vew of the
domnant owner by:
- constructng a budng on hs and, or
- rasng a wa thereon contguous to the wa of the domnant owners. (Artce
669, ast par).
However, the servent owner cannot obstruct the openng for ght, f an easement of
ght had aready been acqured by the domnant owner through (a) prescrpton or (b) by
stpuaton occasoned by the acquston of part-ownershp of the wa by the sevent owner
(Artce 669, par. 2).
I the o"#er o a +&i)%i#$ "o&)% )i?e to ha*e a "i#%o" or +a)co#y "hich "i))
either $i*e hi' a %irect or o+)i>&e *ie" o*er a# a%@oi#i#$ te#e'e#t( "hat
%ista#ce '&st +e o+ser*e%?
No wndows, apertures, bacones, or other smar pro|ectons whch afford a drect
vew upon or towards an ad|onng and or tenement can be made, wthout eavng a
dstance of two meters between the wa n whch they are made and such contguous
property.
Nether can sde or obque vews upon or towards such contermnous property be
had, uness there be a dstance of sxty centmeters.
The nonobservance of these dstances does not gve rse to prescrpton (Artce 670).
Artce 670 appes ony to wndows, apertures, bacones or other smar pro|ectons
affordng a drect vew upon the ad|onng and or tenement. The requred mnmum
dstances of these structures to the boundary ne s 2 meters f the vew s drect and 60
meters of the vew s obque.
What are the %isti#ctio#s +et"ee# the ope#i#$s i# Artic)e 559 a#% those i#
Artic)e 56:?
The openngs n Artce 669 are rreguar wndows and smaer n sze and they are
ntended purey for admsson of ght; whe the openngs n Artce 670 are reguar wndows
and are ntended both for ght and vew.
!o" sha)) the %ista#ces i# Artic)e 56: +e 'eas&re% i# cases o %irect a#%
o+)i>&e *ie"s?
The dstances referred to n the precedng artce sha be measured n cases of drect
vews from the outer ne of the wa when the openngs do not pro|ect, from the outer ne of
the atter when they do, and n cases of obque vew from the dvdng ne between the two
propertes (Artce 671).
Page 78
Notes on Property
Kathryn P. Dea Serna
!o" is %irect *ie" %isti#$&ishe% ro' o+)i>&e *ie"?
- Drect vew s the ganng of drect sght from an openng n a wa parae to
the boundary ne wthout havng to extend out or turn ones head to see the
ad|onng tenement. Here, there s an effortess act of seeng the parae
tenement.
However, t s not necessary aways that the wa sustanng the openng and the dvdng
ne be exacty and geometrcay parae.
- Obque or sde vew s the ganng of sght of other tenement from an
openng made at an ange wth the boundary ne, such that to be abe to see
the ad|onng tenement, there s a necessty for puttng out or turnng ones
head ether to the efty or to the rght.
What is the r&)e "he# the +&i)%i#$s are separate% +y a p&+)ic "ay or a))ey?
The provsons of artce 670 are not appcabe to budngs separated by a pubc
way or aey, whch s not ess than three meters wde, sub|ect to speca reguatons and
oca ordnances (Artce 672).
There must be a mnmum dstance of 3 meters.
S&ppose that a# ease'e#t o )i$ht a#% *ie" has +ee# ac>&ire%( "hat is the
%ista#ce "hich '&st +e o+ser*e% +y the o"#er o the ser*ie#t estate i he %esires
to co#str&ct a ho&se o# his o"# property?
Whenever by any tte a rght has been acqured to have drect vews, bacones or
bevederes overookng an ad|onng property, the owner of the servent estate cannot bud
thereon at ess than a dstance of three meters to be measured n the manner provded n
artce 671. Any stpuaton permttng dstances ess than those prescrbed n artce 670 s
vod (Artce 673).
The artce refers to the acquston of easement of restrant prohbtng the servent
owner from budng any structure on hs and at a dstance of ess than 3 meters measured
from the boundary ne of the two estates. Ths s true servtude.
The acquston s by tte whch means by agreement, donaton, w or prescrpton.
What has been acqured by tte s a rght (a) to have drect vews; (b) to have and mantan
bacones; or (c) bevederes overookng the ad|onng tenement.
SECTION 5
<RAINA8E OF -DIL<IN8S
What are the restrictio#s o the ser*ie#t o"#er "ith respect to ease'e#t o
%rai#a$e o +&i)%i#$s?
The owner of a budng sha be obged:
- To construct ts roof or coverng n such manner that the ran water sha fa
on hs own and or on a street or pubc pace, and not on the and of hs
neghbor, even though the ad|acent and may beong to two or more
persons, one of whom s the owner of the roof.
Page 79
Notes on Property
Kathryn P. Dea Serna
- Even f t shoud fa on hs own and, the owner sha be obged to coect the
water n such a way as not to cause damage to the ad|acent and or
tenement (Artce 674).
What are the restrictio#s( i a#y( o the %o'i#a#t o"#er?
The domnant owner, who has on hs favor an easement of dranage consttuted on a
specfed area of the servent estate for the dranage of ran water, s not aowed to
construct a budng wth a roof protrudng over the stpuated area sub|ect of the easement
(Puru$$anan vs. Paredes, 6! SCRA 6!).
Note that ths Artce s not reay create an easement as t merey reguates use of a
persons property nsofar as ran water s concerned.
What is the o+)i$atio# o the ser*ie#t o"#er "ith respect to the ease'e#t
o recei*i#$ "ater a))i#$ ro' roos?
The servent owner shoud provde an outet for the passage of fang water to a
pubc street or n accordance wth the reguatons to oca ordnances or customs to prevent
damage to the domnant estate (Artce 675).
Ths appes to paces where budngs are constructed on mountanous or eevated
areas and the roofngs of these exstng budngs are of dfferent heghts. Those n the ower
areas may be recevng n ther roofs ran water comng or fang form neghborng roofs.
What is the r&)e i a yar% or co&rt o a ho&se is s&rro&#%e% +y other ho&ses
a#% there is #o o&t)et or the %rai#a$e o rai# "ater co))ecte% therei#?
The owner of sad property can demand the estabshment of an easement of
dranage from the neghborng estates:
- To gve an outet to the water at the pont of the contguous ands or
tenements where ts egress may be easest, and
- To estabsh a condut for the dranage
Before these can be demanded, the foowng condtons must be present:
- The outet must be at the pont of easest egress;
- It must cause the east damage to the servent estate;
- There must be payment of the proper ndemnty.
The easement referred to n ths Artce (whch s compusory after payment of
ndemnty) may be comped wth by foowng Artce 675.
SECTION 6
INTERME<IATE <ISTANCES AN< WORLS FOR CERTAIN CONSTRDCTIONS AN<
PLANTIN8S
What are the )i'itatio#s "ith re$ar% to co#str&ctio#s #ear ortiie% p)aces?
No constructons can be but or pantngs made near fortfed paces or fortresses
wthout compance wth the condtons requred n speca aws, ordnances, and reguatons
reatng thereto (Artce 677).
Page 80
Notes on Property
Kathryn P. Dea Serna
A fortress s a mtary structure of the State aganst foregn aggresson. For reasons
of pubc securty and safety, the aw prohbts the constructon of budngs, the pantng of
trees, shrubs, etc. near these fortresses. The panoramc vson of guards shoud not be
obstructed or bocked wth any standng ob|ects.
What are the prescri+e% %ista#ces i# the co#str&ctio# o a#y a>&e%&ct(
"e))( se"er( &r#aces( or$e( chi'#ey( sta+)e( %epository corrosi*e s&+sta#ces(
'achi#ery or actory "hich +y its #at&re or pro%&cts is %a#$ero&s or #o3io&s?
- The dstances prescrbed by the reguatons and customs of the pace must
be observed.
- The ad|onng propretors cannot stpuate wth the buder or maker that
they are renouncng or wavng any ob|ecton to the ega constructons.
Such stpuaton s vod for beng aganst pubc pocy, for the State s under
obgaton to promote and mantan the genera wefare of the peope.
- If there are no reguatons or customs n the pace that coud be apped,
necessary precautons shoud be taken by the buder or maker to prevent
any damage to the neghborng ands or tenement (Artce 678)
- Iega structures can be ordered demoshed and the one who caused ther
estabshment coud be abe for damages.
What are the %ista#ces to +e o+ser*e% i# the p)a#ti#$ o trees?
- If there are ordnances or customs: Foow the dstance authorzed by the
ordnances n the ocaty; f there are none, foow the generay accepted
customs n the pace.
- If there are no ordnances or customs:
When ta trees are panted - at east 2 meters from the dvdng ne of
the two estates measured to the center of the tree.
When sma trees or shrubs are panted - at east 50 centmeters from
the dvdng ne of the two estates measured to the center of the tree
(Artce 679)
What is the re'e%y i# case o *io)atio#?
In case of voaton of the aw, ordnances or customs, the neghborng and owners
can demand the remova of the trees egay panted. Ths remedy aso appes to tree whch
have grown spontaneousy, that s, wthout any though of pantng them n the tenement of
the servent owner (Artce 679, par. 3).
What are the ri$hts o the o"#er o the #ei$h+ori#$ estate to o*er7
e3te#%i#$ tree +ra#ches or roots?
- If the branches of any tree shoud extend over a neghborng estate,
tenement, garden or yard, the owner of the atter sha have the rght to
demand that they be cut off nsofar as they may spread over hs property;
- If t be the roots of a neghborng tree whch shoud penetrate nto the and
of another, the atter may cut them off hmsef wthn hs property (Artce
680). The |ustfcaton for ths s that by accesson, he became the owner of
the roots and as owner, he has the rght to destroy them.
- The branches and roots of trees whch have ntruded nto the boundares of
the ad|acent tenements can be cut down by the owner of sad trees even f
the comfortng shade en|oyed by the ad|acent tenement woud be done
away wth. Ths s hs ndsputabe rght beng the owner thereof (Crudo vs.
9ancilla, et al., .7 :./. No. 1=, ,. &)!).
Page 81
Notes on Property
Kathryn P. Dea Serna
What is the r&)e as to a))i#$ r&its?
When the branches of a frut bearng tree extend over the tenement of a neghbor,
fruts naturay fang upon ad|acent and beong to the owner of sad and (Artce 681).
The fang of the fruts must not be nduced such as by forcefu shakng of the tree or
ts branches, or by the use of gatherng poes or stcks. Such act w consttute theft of fruts.
When st hangng, the fruts beong to the owner of the tree. But once they naturay
fa on the ground of the neghborng tenement, they pertan to the atter. The mode of
acquston by the neghbor s by aw (Artce 712).
SECTION A
EASEMENT A8AINST NDISANCE
What is ease'e#t a$ai#st #&isa#ce?
Every budng or pece of and s sub|ect to the easement whch prohbts the
propretor or possessor from commttng nusance through nose, |arrng, offensve odor,
smoke, heat, dust, water, gare and other causes (Artce 682).
Who are ser*ie#t a#% %o'i#a#t i# a# ease'e#t a$ai#st #&isa#ce?
The propretor or possessor of the budng or pece of and, who commts the
nusance through nose, |arrng, offensve odor, etc. s the servent n an easement aganst
nusance; n another sense, the budng or the and tsef s the servent estate, snce the
easement s nherent n every budng or and.
The domnant s the genera pubc, or anybody n|ured by the nusance.
What are the restrictio#s o# esta+)ish'e#t o actories a#% shops?
Industra factores and commerca shops may be estabshed sub|ect to reguaton
on:
- zonng,
- heath,
- poce, and
- other aws and reguatons,
- the east possbe annoyance caused to the neghborhood (Artce 683).
SECTION 9
LATERAL AN< SD-=ACENT SDPPORT

What is ease'e#t o# )atera) a#% s&+@ace#t s&pport?
No propretor sha make such excavatons upon hs and as to deprve any ad|acent
and or budng of suffcent atera or sub|acent support (Artce 684).

What )atera) a#% s&+@ace#t s&pports?
Page 82
Notes on Property
Kathryn P. Dea Serna
Latera support - ths s the support on the vertca sde of a and, the remova of
whch may cause the and to crumbe or sde. If there s a budng on the and, the atera
pressure on the and becomes greater. The remova of the atera support of the and where
a budng stands may trgger the weakenng of the foundaton and cause the coapse of the
budng.
Sub|acent support - ths s the horzonta support underneath a and or budng the
remova of whch may cause the snkng or crumbng of the and or budng.
What are the re'e%ies o the a%@ace#t o"#er?
The remedes of the ad|onng owners aganst dangerous excavatons are:
- In|uncton before the excavaton had been consummated; and
- Cam for damages for the n|ures sustaned.
What is the eect o o"#erHs co#se#t to e3ca*atio#s %a#$ero&s to a%@ace#t
)a#% or +&i)%i#$?
Any stpuaton or testamentary provson aowng excavatons that cause danger to
an ad|acent and or budng sha be vod (Artce 685).
What is the e3te#t o the )e$a) ease'e#t o )atera) a#% s&+@ace#t s&pport?
The ega easement of atera and sub|acent support s not ony for budngs standng
at the tme the excavatons are made but aso for constructons that may be erected (Artce
686).
What is the re>&ire'e#t +eore a proprietor ca# 'a?e a#y e3ca*atio#?
Any propretor ntendng to make any excavaton contempated n the three
precedng artces sha notfy a owners of ad|acent ands (Artce 687).
It must be noted that the gvng of notce to the ad|acent owners s merey an
addtona precauton. It s not a substtute for ones duty to exercse reasonabe care to
avod n|ury to the ad|acent ands or budngs.
C!APTER 2
VOLDNTARY EASEMENTS
What are the restrictio#s o a# o"#erHs ri$ht to co#stit&te ease'e#t?
Every owner of a tenement or pece of and may estabsh thereon the easements
whch he may deem sutabe, and n the manner and form whch he may deem best,
provded he does not contravene the aws, pubc pocy or pubc order (Artce 688).
What is per%ia) ser*it&%e?
Ths servtude s a charge ad on the estate for the use and utty of another estate
beongng to another owner; a charge on one estate for the stpuated beneft of another
estate; the beneft must be attrbuted to any person who may own the domnant estate at
any tme.
Page 83
Notes on Property
Kathryn P. Dea Serna
I# *o)&#tary ease'e#ts( "ho acts or the %o'i#a#t estate?
- Ony the owner or someone ese, n the name of and wth the authorty of the
owner, may estabsh a vountary preda servtude on hs estate, for ths s
an act of ownershp.
- In case the property s sub|ect to a usufruct, to create a permanent or
perpetua vountary easement, the owner needs the consent of the
usufructuary because the atter has a rea rght over the property whch s
entted to respect.
- If the tte of one who consttuted the servtude s annued, the servtude s
extngushed because ony an owner can create a servtude on a property.
- If the tte s sub|ect to a resoutory condton, and the condton us fufed,
the servtude s extngushed.
- If the servtude s created by the usufructuary or by a possessor n good
fath, the servtude s termnated when the usufruct or possesson s
termnated. In such a case, what was actuay granted s |ust a persona
rght.
Ca# a ser*it&%e co7e3ist "ith a s&+sisti#$ &s&r&ct?
When the usufruct of a pece of and s contracted to another person, the owner of
the and may mpose servtudes thereon, even wthout the consent of the usufructuary,
provded the servtude not affect or pre|udce the usufruct (Artce 689).
What is the )i'itatio# o# &s&r&ct "ith re$ar% to *o)&#tary ease'e#t?
If the easement s perpetua, the consent of the naked owner as we as the
usufructuary must be obtaned (Artce 690).
However, the rue s dfferent when the easement s ega. Its mposton does not
depend upon the consent of the co-owners. It s the aw whch mposes t because of
necessty.

What is the re>&ire'e#t to co#stit&te a *o)&#tary ease'e#t o# a property
o"#e% i# co''o#?

In order to mpose an easement on an undvded tenement, or pece of and, t s
requred that there must be consent of a the co-owners.
However,
- The consent need not be smutaneousy as the aw provdes that the
consent aready gven by some w be hed n abeyance unt the ast one of
a the co-owners sha have expressed hs conformty.
- The consent gven by one of the co-owners separatey from the others sha
bnd the grantor and hs successors not to prevent the exercse of the rght
granted (Artce 691).
- Once the consent of a co-owner s gven, he cannot wthdraw t anymore,
uness the consent s vtated. Hs successors cannot revoke the consent
aready gven.
- Durng the tme that the other co-owners have not yet gven ther consent to
the consttuton of the easement, the consent prevousy gven by a co-
owner w stand as a contnung consent. He need not gve another consent,
when a the others had fnay gven thers.
Page 84
Notes on Property
Kathryn P. Dea Serna
What are the r&)es "hich %eter'i#e the ri$hts o the %o'i#a#t estate a#%
o+)i$atio#s o the ser*ie#t estate?
The reatonshp of the domnant estate and the servent estate nsofar as ther rghts
and obgatons are concerned are governed:
- By tte (e.g. contract, w) whch consttuted the easement;
- By the manner and form of possesson, f the easement was acqured by
prescrpton;
- In defaut thereof, the easement sha be governed by the Cv Code
provsons as are appcabe thereto (Artce 692).
The Cv Code w ony appy suppetory. However, n the absence of the two above,
the Cv Code sha appy prmary.
I the o"#er o the ser*ie#t estate sho&)% ha*e +o&#% hi'se) to +ear the
cost o the "or? re>&ire% or the &se a#% preser*atio# thereo( ho" 'ay he ree
hi'se) ro' this o+)i$atio#?
He may free hmsef from ths obgaton by renouncng hs property to the owner of
the domnant estate (Artce 693).
If the easement affects the entre servent tenement, the renuncaton or
abandonment must be tota.
-OOL III
<iere#t Mo%es o Ac>&iri#$ O"#ership
INTRO<DCTION
O"#ership
Ownershp s acqured by 1) occupaton and by 2) nteectua creaton.
Ownershp and other rea rghts over property are aso acqured and transmtted by
3) aw, 4) donaton, 5) testate and ntestate successon, 6) prescrpton and 7) n
consequence of certan contracts, tradton (Article 71&).
The frst three are orgna and the ast four are dervatve.
Theory o 'o%e a#% tit)e
Mode s a way or process of acqurng or transferrng ownershp; whe tte refers to
the |urdca act or deed whch s not suffcent by tsef to transfer ownershp but t provdes
a |urdca |ustfcaton for the effectuaton of a mode. Consequenty, mode drecty produces
a rea rght, whe tte serves ony to produce a means or occason for ts acquston. In
other words, mode s the cause, whe tte s the means.
Thus, f a seer ses hs car to a buyer, the sae s the tte whe the devery
(tradton) s the mode whch makes the buyer the owner of the rng. A tte merey creates a
persona rght whch coud rea rght f foowed wth devery.
27
27
Note that n the aw on successon, the tte s aso the mode. Heredtary rghts are
transferred from the moment of death of the decedent (Artce 777). Devery (tradton) s
Page 85
Notes on Property
Kathryn P. Dea Serna
9ode 1itle
:ccu,ation Sezure Property sezed s
wthout a known owner
%ntellectual creation Emergence or dscovery Orgnaty or novety
-aw Force of aw Concurrence of
prerequste condtons
Donation Formates/devery Agreement of partes
Succession Death Law or w
1radition Devery Agreement of the partes
Prescri,tion Lapse of prescrbed
perod
Possesson n the concept
of an owner
MO<ES
I. Occ&patio#
Occupaton s a mode of acqurng ownershp by 1) the sezure of 2) corporea thngs
3) whch do not do not have an owner |res nullius| 4) wth the ntenton of acqurng them 5)
n accordance wth the rues prescrbed by aw.
Thngs that may be acqured by occupaton are those approprabe by nature whch
are 1) wthout an owner, such as anmas that are the ob|ect of huntng and fshng, 2)
hdden treasure and 3) abandoned movabes (Article 71.). It cannot be asserted as a mode
of acqurng ownershp over a thng that s owned by another
Ownershp of a pece of and cannot be acqured by occupaton (Artce 714) because
when and s wthout an owner, t pertans to the State.
Anmas:
1) If the anma s wd n the sense that t s n ts state of natura freedom, the
fnder becomes the owner from the moment that he has captured t. Ths rue
s appcabe even to a wd anma whch had been captured but whch
reganed ts natura freedom (Article 71.).
2) If the anma s domestcated n the sense that t was orgnay wd but t has
been captured, subdued and made use of by man so that t has formed the
habt of returnng to the premses of the possessor (Article '6), so ong as t
retans the habt of returnng to such premses, the fnder cannot become the
owner thereof uness he compes wth the formates prescrbed by aw for
the acquston of ownershp of ordnary persona property; but once t oses
the habt of retunng to such premses, he becomes the owner thereof ony f
not a condton pre-requste to transfer ownershp. Actua possesson, however, may be
exercsed ony upon actua devery (Artce 1089; 1091).
Page 86
Notes on Property
Kathryn P. Dea Serna
the orgna owner does not cam t wthn 20 days to be counted from the
tme that t was captured (Article 716).
3) If the anma s domestc n the sense that t was born or reared under the
power of man, ackng the nstnct to roam freey, the person who captured
the same cannot be the owner thereof uness he w compy wth the
formates prescrbed by aw for the acquston of ownershp of ordnary
persona property (Article 71!).
Abandoned movabes (but not ost property):
1) If the owner of the movabe s known, the fnder can never become the owner
because under the aw, he must return t to the owner.
2) If the owner s unknown, the fnder sha mmedatey depost the movabe
wth the mayor of the pace where the fndng took pace. There sha be a
pubc announcement of the fndng wthn two consecutve weeks. Sx months
from pubcaton havng eapsed wthout the owner havng appeared, the thng
found sha be awarded to the fnder, after rembursement of the expenses
(Article 71!).
3) If the owner shoud appear n tme, he sha be obged to pay the fnder as a
reward, one-tenth of the amount found (Article 7&).
Hdden Treasures:
Hdden treasure can be acqured by occupaton ony f there s no known owner
thereof. Ths s possbe ony f the treasure s found n paces or thngs wthout owners. If the
treasure s found on a and owned by somebody, the treasure w beong to the andowner
(Article =.)).
4. La"
Law as a mode of acqurng ownershp appes n a stuaton where ownershp s
vested ndependenty of the other modes of acquston. Ths n ustrated by the foowng
Artces:
1. Whatever s but, panted or sown on the and of another and the mprovements
or repars made thereon, beong to the owner of the and (Article ==').
2. Rver beds whch are abandoned through the natura change n the course of the
waters pso facto beong to the owners whose ands are occuped by the new
course n proporton to the area ost (Article =61).
3. Isands whch through successve accumuaton of auva deposts are formed n
non-navgabe and non-foatabe rvers, beong to the owners of the margns or
banks nearest to each of them, or to the owners of both margns f the sand s n
the mdde of the rver, n whch case t sha be dvded ongtudnay n haves. If
a snge sand thus formed be more dstant from one margn than from the other,
the owner of the nearer margn sha be the soe owner thereof (Article =6').
4. Whenever two movabe thngs beongng to dfferent owners are, wthout bad
fath, unted n such a way that they form a snge ob|ect, the owner of the
prncpa thng acqures the accessory, ndemnfyng the former owner thereof for
ts vaue (Article =66).
Page 87
Notes on Property
Kathryn P. Dea Serna
5. Fruts naturay fang upon ad|acent and beong to the owner of sad and
(Article 6)1).
6. Where spouses, usng con|uga funds cause mprovements on and owned
excusvey by one of them, f the mprovements cost more than the and, and
becomes con|uga at tme of rembursement (Article 1&, 8amil6 Code).
7. When a person who s not the owner of a thng ses or aenates and devers t,
and ater the seer or grantor acqures tte thereto, such tte passes by operaton
of aw to the buyer or grantee (Article 1=)=).
8. If the property s acqured through mstake or fraud, the person obtanng t s, by
force of aw, consdered a trustee of an mped trust for the beneft of the person
from whom the property comes (Article 1='6).
9. Hdden treasure beongs to the owner of the and, budng, or other property on
whch t s found (Article =.)).
2. I#te))ect&a) Creatio#
By nteectua creaton, the foowng persons acqure ownershp:
1) The author wth regard to hs terary, dramatc, hstorca, ega, phosophca,
scentfc or other work;
2) The composer, as to hs musca composton;
3) The panter, scuptor, or other artst, wth respect to the product of hs art;
4) The scentst or technoogst or any other person wth regard to hs dscovery
or nventon (Article 7&1).
The author and the composer, mentoned n Nos. 1 and 2 of the precedng artce,
sha have the ownershp of ther creatons even before the pubcaton of the same. Once
ther works are pubshed, ther rghts are governed by the Copyrght aws.
The panter, scuptor or other artst sha have domnon over the product of hs art
even before t s copyrghted.
The scentst or technoogst has the ownershp of hs dscovery or nventon even
before t s patented (Article 7&&).

Letters and other prvate communcatons n wrtng are owned by the person to
whom they are addressed and devered, but they cannot be pubshed or dssemnated
wthout the consent of the wrter or hs hers. However, the court may authorze ther
pubcaton or dssemnaton f the pubc good or the nterest of |ustce so requres (Article
7&.).
/. Tra%itio#
Tradton, defned as ega devery, s a dervatve mode of acqurng ownershp and
other rea rghts by vrtue of whch (1) they are transmtted from the patrmony of the
grantor, n whch they had prevousy exsted, to that of the grantee (2) by means of a |ust
tte, (3) there beng both the ntenton and the capacty on the part of both partes. (4) The
transmsson shoud be manfested by some act whch may be physca, symboca or ega.
Ownershp s not transferred by the mere perfecton of the contract but by devery
whch coud ether be actua or constructve.
Knds of tradton recognzed by the Cv Code:
Page 88
Notes on Property
Kathryn P. Dea Serna
1) Rea tradton - takes pace by the devery or transfer of a thng from hand o hand f
t s movabe, or by certan matera and possessory acts of the grantee performed n
the presence and wth the consent of the grantor f t s mmovabe.
2) Constructve tradton - takes pace by the devery of a movabe or mmovabe thng
by means of acts or sgns ndcatve thereof.
Ths devery may take pace n the foowng manner:
a. 1raditio s6m*olica - conssts n the devery of symbo representng the thng
whch s devered, such as the key to a warehouse.
b. 1raditio lon$a manu - conssts n the grantor pontng out to the grantee the
thng whch s devered whch at the tme must be wthn sght.
c. 1raditio *revi manu - conssts when the grantee s aready n possesson of
the thng under a tte whch s not of ownershp, such as when the essee
purchases from the essor the ob|ect of the ease.
d. 1raditio constitutum ,ossessorium - takes pace when the grantor aenates a
thng beongng to hm, but contnues n possesson thereof under a dfferent
tte, such as that of a essee, pedge or depostary.
3) <uasi+tradicion - t conssts n the devery of ncorporea property ke rghts and
credts done through the (a) pacng ttes of ownershp n the hands of the grantee or
hs representatve; or (b) by aowng the grantee to make use of the rghts wth the
consent of the grantor (Article 1'1).
4) 1radicio ,or minesterio de la le6 - refers to devery whch takes pace by operaton of
aw such as ntestate successon where nhertance s transferred upon death of the
decedent.
0. <o#atio#
Nat&re o <o#atio#s
Donaton s an act of beraty whereby a person dsposes gratutousy of a thng or
rght n favor of another, who accepts t (Article 7&').

When a person gves to another a thng or rght on account of the atter's merts or of
the servces rendered by hm to the donor, provded they do not consttute a demandabe
debt,
28
or when the gft mposes upon the donee a burden whch s ess than the vaue of
the thng gven, there s aso a donaton
29
(Article 7&6).
When consdered post-mortem:
1. Transferor has retaned tte or ownershp and contro of the property;
2. Transferor has reserved hs rght to revoke at w;
28
Meanng of "not demandabe debt": that the servce rendered dd not create any
obgaton enforceabe aganst the donor. Ths s remuneratory donaton.
29


Ths s moda nsttuton where the burden my consst of a charge that s not a
condton n ts technca sense, but a mere obgaton mposed on the donee by the donor.
The mode or burden s a mere restrcton on the beneft conferred upon the donee. It does
not affect the rght of the donee. Exampe: Donaton of a and to the State to make t a
pubc park.
Page 89
Notes on Property
Kathryn P. Dea Serna
3. Transfer woud be vod f the transferor shoud survve the transferee.
Tests to determne whether donaton s mortis causa or inter vivosA
1. If the act s one of dsposton and effectve ndependenty of the donors death, t s a
donaton inter vivos.
2. If t s one of dsposton but ts effectvty s dependent upon the death of the donor,
t s a mortis causa donaton.
3. If ownershp of property s reserved to the donor durng hs fetme, donaton s
mortis causa.
4. If what s reserved s ony the usufruct, t s donaton inter vivos.
5. When the donor reserved the rght to revoke donaton, t s mortis causa.
6. In donaton in ,raesanti, the donaton s effectve durng the fetme of the donor but
the devery of the possesson of the property sha be after the death of the donor
(Article 7&!). Thus t s a donaton inter vivos.
7. When there s doubt on the nature of the donaton, the doubt shoud be resoved n
favor of donaton inter vivos, rather than mortis causa to avod uncertanty as to the
ownershp pf the property sub|ect of the deed of donaton.
Li#%s
1) Smpe or pure (Article 7&')
2) Remuneratory (Article 7&6, 1
st
,ortion)
3) Condtona (Articles 7., 7.1 and 76=)
4) Moda (Article 7&6, &
nd
,ortion)
5) Onerous (Article 7..)
Eect o i))e$a) or i'possi+)e co#%itio#s
If ega or mpossbe condtons are mposed on a pure or remuneratory donaton,
they are deemed not mposed at a (Article 7&7). The donaton remans vad wthout the
condton. Ths s the same rue foowed n testamentary successon because both are
gratutous modes of acqurng ownershp.
However, onerous donatons are not covered by the Artce. They are governed by
the aw on contracts where the rue s that f ega or mpossbe condtons are mposed on
contracts, the obgaton tsef becomes vod (Article 11).). There s an onerous donaton f a
burden s mposed on the donee and the burden s equvaent to the vaue of the thng
donated or when a donaton s made n settement or payment of a demandabe debt.
Perectio#
Donaton s perfected, not from the tme of acceptance of the donaton by the donee,
but from the moment the donor has known that the donee has accepted the donaton
(Article 7.=).
The acceptance must be made durng the fetme of the donor and of the donee
(Article 7=6).
Capacity to Ma?e a#% Accept <o#atio#s
1) In order that a person can make a donaton three requstes are necessary:
Page 90
Notes on Property
Kathryn P. Dea Serna
1) He must have the capacty to enter nto contracts;
2) He must be abe to dspose of hs property; and
3) He must not be prohbted or dsquafed by aw from makng the donaton.

He must therefore have fu cv capacty.
The donor's capacty sha be determned as of the tme of the makng of the donaton
(Article 7.7), meanng at the tme of the perfecton of the donaton.
2) In order that a person can accept a donaton ony one requste s necessary. He must
not be prohbted or dsquafed by aw from acceptng donaton.
Mnors and others who cannot enter nto a contract
30
may become donees but
acceptance sha be done through ther parents or ega representatves (Article 7=1).
Donatons made to conceved and unborn chdren may be accepted by those
persons who woud egay represent them f they were aready born. It s however
essenta that (1) the conceved and unborn chd at the tme of the donaton must be
born ave and ganed personaty n accordance wth Artce 41 of the Cv Code (f
the conceved chd dd not become a person, the donaton s nu and vod); and (2)
the donaton s favorabe to the chd (f the donaton s not favorabe to the chd, as
when the burdens of an onerous donaton are pre|udca to the chds nterest, the
donaton sha not be operatve).

Prohi+ite% <o#atio#s
The foowng donatons sha be vod:
1) Those made between persons who were guty of adutery or concubnage at the tme
of the donaton;
2) Those made between persons found guty of the same crmna offense, n
consderaton thereof;
3) Those made to a pubc offcer or hs wfe, descendants and ascendants, by reason of
hs offce (Article 7.!);
4) Those made to the prest who heard the confesson of the testator durng hs ast
ness, or the mnster of the gospe who extended sprtua ad to hm durng the
same perod;
5) Those made to the reatves of such prest or mnster of the gospe wthn the fourth
degree, the church, order, chapter, communty, organzaton, or nsttuton to whch
such prest or mnster may beong;
6) Those made by the ward to the guardan before fna account of the guardanshp
have been approved, uness the guardan s a spouse, ascendant, descendant,
brother or sster;
7) Those made to the attestng wtness to the executon of a w, the spouse, parents,
or chdren, or any one camng under such wtness, spouse, parents, or chdren;
8) Those made to the physcan, surgeon, nurse, heath offcer or druggst who took care
of the testator durng hs ast ness;
9) Those made to ndvduas, assocatons and corporatons not permtted by aw to
nhert (Article 1&7);
30
The term "others" refers to those who are ncapactated by reason of the restrcton
n ther capacty to act, ke the nsane, mbece and deaf-mutes. It does not refer to those
ncapactated under Artce 739 of the Cv Code and Artce 89 of the Famy Code.
Page 91
Notes on Property
Kathryn P. Dea Serna
10)Those made by the spouse to each other durng the marrage, or between those
persons vng together as husband and wfe wthout a vad marrage (Article )7,
8amil6 Code).
Effect of donatons made to ncapactated persons
31
- the donaton sha be vod
though smuated under the guse of another contract or through a person who s
nterposed.
For'a)ities
1) If the donaton s smpe or remuneratory:
(1) If movabe -
a) If the vaue of the property s worth fve thousand pesos or ess,
there must be smutaneous devery of the thng or the
document representng the rght donated to the donee (actua
or constructve devery). Ora donaton s aowed here but
there s no prohbton to accept the donaton n wrtng.
b) If the vaue of the persona property donated exceeds fve
thousand pesos - the donaton and the acceptance must be
made n wrtng, athough t need not be n a pubc nstrument.
Otherwse, the donaton sha be vod even f there s
smutaneous devery (Article 7=)).
(2) If mmovabe -
a) It must be made n a pubc document (notarzed), specfyng
theren the property donated and the vaue of the charges
whch the donee must satsfy.
b) The acceptance may be made n the same deed burden of
donaton or n a separate pubc document, but t sha not take
effect uness t s done durng the fetme of the donor.
c) If the acceptance s made n a separate nstrument, the donor
sha be notfed thereof n an authentc form, and ths step sha
be noted n both nstruments (Article 7=!).
2) If the donaton s condtona:
The formates requred above are appcabe to that porton whch exceeds the vaue
of the burden mposed, whe the formates prescrbed for the executon of ordnary
contracts are appcabe to that porton whch s the equvaent of such burden (Article 7..).
3) If the donaton s onerous:
The formates prescrbed for the executon of ordnary contracts sha have to be
comped (Article 7..). They need not be n pubc nstruments because they are governed
by the rues of contracts (9analo vs. De 9esa, & Phil. =!'> Dan$uilan vs. %AC, 16) SCRA
&&).
31
Incapactated persons here do not refer to mnors or nsane or others merey
sufferng from restrctons n ther capacty to act under Artces 38 and 39 of the Cv Code.
They refer to persons expressy decared by aw to be ncapactated to receve donatons ke
those mentoned n Artce 739 of the Cv Code and Artce 87 of the Famy Code.
Page 92
Notes on Property
Kathryn P. Dea Serna
4) If the donaton s by reason of marrage settement:
The Statute of Frauds sha have to be comped wth.
5) If the donaton s mortis causa:
The formates prescrbed for the executon of ws sha have to be comped wth
(Article 7&)).
Li'itatio#s

The most fundamenta mtatons whch are mposed by aw upon the extent of
property whch may be donated inter vivos are:
1) The donor must reserve suffcent means for the support of hmsef, and of a
reatves who, at the tme of the acceptance of the donaton, are by aw entted to be
supported by the donor
32
(Article 7').
2) Donatons cannot comprehend future property
33
(Article 7'1).
3) No person may gve or receve, by way of donaton, more than he may gve or
receve by w. The donaton sha be noffcous n a that t may exceed ths
mtaton (Article 7'&).
Eect o i#oicio&s %o#atio#s
Donatons whch are noffcous sha not prevent the donatons from takng effect
durng the fe of the donor, nor sha t bar the donee from appropratng the fruts (Article
771).
However, when the donor des, the compusory hers whose egtme s mpared can
ask for the reducton of the donaton.
Re*ersio#
The property donated may be restored or returned to the a) donor or to Reverson
(restoraton or return) to the donor or to hs estate) may be vady estabshed n favor of
the donor or n favor of other persons; hnor hs estate; or b) n favor of other persons who
must be vng at the tme of the donaton; otherwse, the reverson s vod, athough the
donaton s st vad (Article 7'7). The reverson s a condton estabshed n the deed of
donaton.
Re*ocatio#
32
A donaton where the donor dd not reserve property or assets for hmsef n fu
ownershp or n usufruct suffcent for hs support and a reatves egay dependent upon
hm, s not vod. It s merey reducbe to the extent that the support to hmsef and hs
reatves s mpared or pre|udced.
If the donor dd not reserve enough assets to pay hs credtors whom he owed before
the donaton, the donaton s presumed to be n fraud of credtors (Artce 759). The credtors
may rescnd the donaton to the extent of ther credts (Artce 1387). The acton s known as
accion ,auliana.
33
Any property whch the donor coud not dspose of at the tme of the donaton s
future property.
Excepton to the rue that future property cannot be donated: The excepton nvoves
marrage settements of prospectve spouses wheren they are aowed to donate propertes
to each other to the extent permtted by aw (Artce 84, Famy Code).
Page 93
Notes on Property
Kathryn P. Dea Serna
Speca modes by whch donaton inter vivos may be revoked:
1) Supervenng brth, survva, or adopton of a chd (Article 76);
2) Non-fufment of the condton or charge mposed (Article 76=);
3) Acts of ngrattude of the donee (Article 76');
4) Inoffcous donatons (Article 771);
5) When the donaton s n fraud of credtors and the amount of the |udgment s equa or
more than the amount of the dsposabe free porton (Article 1.)7).
Re%&ctio#
Speca modes by whch donaton inter vivos may be reduced:
1) When donor dd not reserve suffcent means for hs support as we as for the
support of a reatves who, at the tme of the donaton, are by aw entted to be
supported by such donor (Article 7').
2) Supervenng brth, survva or adopton of a chd
34
(Article 76).
3) Inoffcous donaton (Article 771).
4) When the donaton s n fraud of credtors and the amount of the |udgment s equa or
more than the amount of the dsposabe free porton (Article 1.)7).
Re%&ctio# or re*ocatio# &#%er Artic)e 65:E
Extent:
1) In the cases referred to Artce 760, the donaton sha be revoked or
reduced nsofar as t exceeds the porton that may be freey dsposed of
by w, takng nto account the whoe estate of the donor at the tme of
the brth, appearance or adopton of a chd (Article 761).
2) Upon the revocaton or reducton of the donaton by the brth, appearance
or adopton of a chd, the property affected sha be returned or ts vaue
f the donee has sod the same.
3) If the property s mortgaged, the donor may redeem the mortgage, by
payng the amount guaranteed, wth a rght to recover the same from the
donee.
4) When the property cannot be returned, t sha be estmated at what t
was worth at the tme of the donaton (Article 76&).
How reducton takes pace:
From the phraseoogy of Artce 763, a |udca acton s necessary for the reducton of
the donaton f any of the events mentoned n Artce 760 sha happen.
Prescrpton:
The acton sha prescrbe after four years from the brth of the frst chd, or from hs
egtmaton, recognton or adopton, or from the |udca decaraton of faton, or from the
tme nformaton was receved regardng the exstence of the chd beeved dead.
34
The mtaton n Artce 760 covers ony the brth of a chd; the dscovery that a
chd beeved to be dead s ave; and the adopton of a mnor chd. The descendants of
these chdren, f any, are not ncuded wthn the coverage of the Artce. Ther brth,
emergence or adopton w not be causes for the revocaton or reducton of the donaton.
Page 94
Notes on Property
Kathryn P. Dea Serna
In the event that two or more causes are present, the earest among them sha be
the startng pont n the reckonng of the perod of prescrpton of the acton.
Transmsson of rght to revoke:
Ths acton cannot be renounced, and s transmtted, upon the death of the donor, to
hs egtmate and egtmate chdren and descendants (Article 76.).
Re*ocatio# +eca&se o #o#7&)i))'e#t o co#%itio#E
The donaton sha be revoked at the nstance of the donor, when the donee fas to
compy wth any of the condtons whch the former mposed upon the atter.
In ths case, the property donated sha be returned to the donor, the aenatons
made by the donee and the mortgages mposed thereon by hm beng vod, wth the
mtatons estabshed, wth regard to thrd persons, by the Mortgage Law and the Land
Regstraton aws.
Prescrpton:
Ths acton sha prescrbe after four years from the noncompance wth the
condton.
Transmssbty of rght to revoke:
The acton to revoke may be transmtted to the hers of the donor, and may be
exercsed aganst the donee's hers (Article 76=).
Dstnctons between Artces 760 (supervenng brth, survva, or adopton of a chd)
and Artce 764 (non-fufment of the condton or charge mposed):
Artce 760 Artce 764
1
.
Appes both to revocaton or
reducton of the donaton.
Appes ony to revocaton.
2
.
The grounds are (a) brth of a
chd; (b) appearance of a chd
beeved dead; and (c)
subsequent adopton of a mnor
chd.
The ground s faure to compy wth
the condton or condtons mposed by
the donor.
3
.
Mortgages executed by the
donee are vad.
Aenaton or mortgages executed by
the donee are vod, uness, the grantee
s an nnocent thrd person.
4
.
The rght of acton cannot be
renounced.
Rght of acton can be waved or
renounced there beng no prohbton.
Smartes of Artces 760 and 764:
1) In both artces, f there s revocaton, the donee sha return the property f t
s st n hs possesson. If not, he must pay the vaue thereof.
2) Further, the rght of acton to revoke s transmtted to the hers of the donor.
3) If the donor des n both artces, the sut for revocaton may be pursued
aganst the hers or assgns of the donee.
Re*ocatio# +eca&se o acts o i#$ratit&%eE
Page 95
Notes on Property
Kathryn P. Dea Serna
The donaton may aso be revoked at the nstance of the donor, by reason of
ngrattude n the foowng cases:
1) If the donee shoud commt some offense aganst the person, the honor or the
property of the donor, or of hs wfe or chdren under hs parenta authorty;
2) If the donee mputes to the donor any crmna offense, or any act nvovng mora
turptude, even though he shoud prove t, uness the crme or the act has been
commtted aganst the donee hmsef, hs wfe or chdren under hs authorty;
3) If he unduy refuses hm support when the donee s egay or moray bound to gve
support to the donor (Artce 765).
The grounds enumerated for the revocaton of donatons by reason of ngrattude are
mtatve. They are excusve.
The genera rue s that donaton are revocabe by reason of the ngrattude of the
donee except the foowng donatons:
1) 9ortis causa donatons - because these donatons take effect after death of
the donor. After death, the donor coud no onger ntate the revocaton of the
donaton he executed.
2) Onerous donatons - because these donatons are made for some
consderatons, hence they can not |ust be revoked. Such donatons are not
based on pure beraty.
Note: Donaton ,ro,er nu,tias may be revoked based on acts of ngrattude of the
donee (Artce 86 |6| Famy Code)
Rue as to aenatons and mortgages n donatons |udcay revoked because of
ngrattude:
1) The aenatons and mortgages executed by the donee before the regstraton wth
the Regstry of Deeds of the pendency of the compant (lis ,endens) w be vad.
2) A aenatons and mortgages executed by the donee after the regstraton of the lis
,endens sha be vod.
3) Even wthout regstraton, f the buyer or mortgagee of the property donated knew of
the compant for revocaton, the sae or mortgage w be vod as he acted n bad
fath. Hs actua knowedge of the compant s tantamount to regstraton
Remedy of the owner: If the property s aready transferred n the name of the buyer
or mortgagee, the remedy of the donor s to recover the vaue of the property
determned as of the tme of the donaton (Article 767).
Thngs to return after revocaton of donatons:
1) If the revocaton s due to non-compance wth any condton - both the
property and the fruts sha be returned. These fruts are those acqured after
the faure to compy wth the condton.
2) If the revocaton s due to (a) causes stated n Artce 760; (b) ngrattude; and
noffcous donaton - ony the fruts accrung from the fng of the acton sha
be returned.
Prescrpton:
Ths acton prescrbes wthn one year, to be counted from the tme the donor had
knowedge of the fact and t was possbe for hm to brng the acton (Article 76!).
Page 96
Notes on Property
Kathryn P. Dea Serna
Transmssbty of rght to revoke:
The acton granted to the donor by reason of ngrattude cannot be renounced n advance.
Beng purey persona n character, as a rue ths acton sha not be transmtted to the hers
of the donor, f the atter dd not nsttute the case, athough he coud have done so, and
even f he shoud de before the expraton of one year; nether can ths acton be brought
aganst the her of the donee, uness upon the atter's death the compant has been fed
(Article 77).
Exceptons to the frst rue (where the hers of the donor may nsttute the acton for
revocaton):
1) If the acton had aready been brought by the donor, but he ded before t coud be
decded;
2) If the crcumstances ceary manfest that the donor desred and ntended to revoke
the donaton, but was prevented by sckness, nsanty, or even fortutous event from
brngng the acton, and he ded wthout beng abe to fe the correspondng
compant wthn the one year perod of prescrpton;
3) If the donee ked the donor or nfcted n|ures causng hs death;
4) If the donor ded wthout havng known the act of ngrattude; and
5) If the donor had aready nsttuted crmna proceedngs aganst the donee but ded
before he coud fe the correspondng cv acton for revocaton of donaton.
Excepton to the second rue (where the acton may be brought aganst the hers of
the donee): If the compant has aready been fed upon the donees death (Artce
770).
Re%&ctio#Mre*ocatio# o I#oicio&s %o#atio#E
Prescrpton:
Beng smar to actons for recsson of rescssbe contracts (Article 1.!), the perod of
prescrpton for brngng the acton for revocaton or reducton of the donaton s four years
to be counted from the death of the donor.
Persons who can ask for revocaton/reducton:
Ths knd of acton s pursuabe ony after the donors death (because the noffcousness of
the donaton s determnabe ony after death of the donor). Thus, ony compusory hers and
ther hers and successors n nterest may ask for the reducton or noffcous donatons.
Credtors of the donor can nether ask for the reducton nor ava themseves thereof (Artce
772). Ths does not mean however that such credtors have no rght to mpugn the vadty of
the donaton. They may do so f t was entered nto n fraud of them and the acton for
rescsson s brought wthn the perod prescrbed by aw (Artce 1387).
Order of reducton:
If, there beng two or more donatons, the dsposabe porton s not suffcent to cover a of
them, those of the more recent date sha be suppressed or reduced wth regard to the
excess (Artce 773) . In other words, the ater donatons must be dropped frst. The earer
donatons are gven preference n accordance wth the prncpe that, (1) "prorty n tme
gves prorty n rghts, and (2) the rrevocabty of donatons inter vivos.
As excepton to Artce 773, there sha be no reducton n the case of certan weddng
gfts made n favor of descendants by ther parents or ascendants whch shoud not
exceed one-tenth of the sum of the dsposabe free porton (Artce 1070).
R&)es as to r&its or re*o?e% or re%&ce% %o#atio#sE
Page 97
Notes on Property
Kathryn P. Dea Serna
1) If ground s under Artce 760 (supervenng brth, survva or adopton of a chd) - the
donee sha not return the fruts except from the fng of the compant (Artce 768);
2) If ground s under Artce 764 (Non-fufment of the condton or charge mposed) -
the donee sha return not ony the property but aso the fruts thereof whch he may
have receved after havng faed to fuf the condton (Artce 768);
3) If ground s under 771 (Inoffcous donatons) - whe the donor ves, the donaton
sha take effect, and therefore, the donee sha be entted to the fruts (Artce 771)
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